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ROBERT KREPICH,
Plaintiff
V.
WANDA'S HOLIDAY .
INN, MECHANICSBURG:
GF INVESTORS, and GF :
DEVELOPMENT, INC., :
Defendants
IN TIME COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 99-6213 CIVIL TERM
ORDER OF COURT
AND NOW, this 14`s day of August, 2001, upon consideration of Plaintiffs
Motion in Limine to preclude introduction of "any evidence of Plaintiffs alleged
violation of the Employment Agency Law or any other state statute at the time of trial,"
the motion is denied.
BY THE COURT,
a
J. csicy Olcr , J.
Ron Turo, Esq.
28 South Pitt Street
Carlisle, PA 17013
Attorney for Plaintiff
John A. Abom, Esq.
8 South Hanover Street
Suite 204
Carlisle, PA 17013
eei4'"'° n++' `?
I./S',o/
Dennis P. Talty, Esq.
101 West Main Street
Second Floor
Moorestown, NJ 08057
:rc
n
ROBERT KREPICH, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
V. : NO. 99- Ua 13 CIVIL TERM
WANDA'S HOLIDAY INN,
MECHANICSBURG GF INVESTORS,
and GF DEVELOPMENT, INC.,
Defendants
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims
set forth in the following pages, you must take action within twenty (20) days after this
Complaint and Notice are served, by entering a written appearance personally or by
attorney and filing in writing with the Court your defenses or objections to the claims set
forth against you. You are warned that if you fail to do so the case may proceed without
you and a judgment may be entered against you by the Court without further notice for
any money claimed in the Complaint of for any other claim or relief requested by the
Plaintiff. You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
ROBERT KREPICH,
Plaintiff
V.
WANDA'S HOLIDAY INN,
MECHANICSBURG GF INVESTORS,
and GF DEVELOPMENT, INC.,
Defendants
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99- (2@ 13 CIVIL TERM
COMPLAINT
1. Robert Krepich is an adult individual currently operating a club and concert
promotion agency known as Pegasus Concerts with a business address of P.O. Box
408, Berwick, Pennsylvania 18603.
2. Wanda's nightclub is a business owned by Mechanicsburg GF Investors,
with a business address of 5401 Carlisle Pike, Mechanicsburg, Cumberland County,
Pennsylvania 17055.
3. Mechanicsburg GF Investors is a business owned by GF Development,
Inc., a corporation with a business address of 5401 Carlisle Pike, Mechanicsburg,
Cumberland County, Pennsylvania 17055.
4. On or about November 25, 1998, Plaintiff entered Into a Representation
Agreement with Emily's Toybox, a musical artist performing in Pennsylvania, for the
purpose of providing dates, compensation and venues for musical performance.
5. On November 25, 1998, Wanda's nightclub entered into a Performance
Agreement with Pegasus Concerts on behalf of Emily's Toybox for a performance on
December 3, 1998. A copy of this Agreement is attached hereto and marked "Exhibit
A".
6. In consideration for this booking, Wanda's nightclub agreed to pay Plaintiff
a commission in the amount of $260. See "Exhibit A".
7. Emily's Toxbox performed at Wanda's nightclub on December 3, 1998.
. '- ... . ..
8. On or about January 10, 1999, Plaintiff entered into a representation
agreement with Green Eggs and Spam, a musical artist performing in the Central
Pennsylvania area with the purpose of securing dates, compensation and venues for
musical performances.
9. On January 10, 1999, Robert Krepich and Wanda's nightclub entered Into
a Performance Agreement for the services of Green Eggs and Spam for the date of
February 25, 1999. A copy of this Agreement is attached hereto and marked "Exhibit
B.I.
10. In consideration for this booking, Wanda's nightclub agreed to pay Plaintiff
a commission in the amount of $300. See "Exhibit B".
11. Green Eggs and Spam performed at Wanda's nightclub on February 25,
1999.
12. On or about February 1, 1999 Plaintiff entered a Representation
Agreement with Mr. Greengenes, a musical artist performing in Pennsylvania, for the
purpose of securing dates, compensation and venues for musical performances.
13. On February 1, 1999, Plaintiff entered into a Performance Agreement with
Wanda's nightclub for the services of Mr. Greengenes for a performance on April 1,
1999. A copy of this Agreement is attached hereto and marked "Exhibit C".
14. In consideration for this booking, Wanda's nightclub agreed to pay Plaintiff
a commission in the amount of $450.00.
15. Mr. Greengenes performed at Wanda's nightclub on April 1, 1999.
COUNTI
BREACH OF CONTRACT
EMILY'S TOYBOX AGREEMENT
16. Paragraphs 1 through 15 are incorporated herein by reference as if fully
set forth below.
17. Paragraph 17 of the Performance Agreement provides that "in the event
the artist is rebooked into the establishment owned or controlled by the Purchaser within
24 months of the termination of this contract, Pegasus shall be paid a commission at the
same rate as provided under this contract. Purchaser agrees to be solely liable for
payment of said commission." See "Exhibit A".
18. On September 5, 1999, Emily's Toybox performed at Wanda's nightclub
and no commission for said performance has been paid to Plaintiff.
19. Wanda's nightclub has scheduled Emily's Toybox for performances on
October 31, 1999 and November 25, 1999.
20. Plaintiff has made several demands on Defendants to pay commissions
due under the Agreement to which no response has been received.
WHEREFORE, for all the above reasons, the Plaintiff demands judgment in his
favor in the amount of $260.00, and, in the event Emily's Toybox is booked at Wanda's
nightclub between September 5, 1999 and the time of trial, an additional $260.00 per
performance, plus interest and costs in his favor and against Defendants.
COUNT II
BREACH OF CONTRACT
GREEN EGGS AND SPAM AGREEMENT
21. Paragraphs 1 through 20 are incorporated herein by reference as if fully
set forth below.
22. Paragraph 17 of the Performance Agreement provides that "in the event
the artist is rebooked into the establishment owned or controlled by the Purchaser within
24 months of the termination of this contract, Pegasus shall be paid a commission at the
same rate as provided under this contract. Purchaser agrees to be solely liable for
payment of said commission." See "Exhibit B".
23. Between March 7, 1999 and September 30, 1999 Green Eggs and Spam
has performed at Wanda's nightclub a total of 28 times, for which only partial payment
of commission has been made to Plaintiff.
24. Several demands were made on Defendants to pay commissions due
under this agreement to which no response was received by Plaintiff.
25. Wanda's nightclub has scheduled Green Eggs and Spam to perform
October 28, 1999.
WHEREFORE, for all the above reasons, the Plaintiff demands judgment In their
favor in the amount of $7100.00, and, in the event Green Eggs and Spam performs at
Wanda's for any dates between September 30, 1999 and the time of trial, an additional
$300.00 per performance, plus Interest with costs in their favor and against Defendants.
COUNT
BREACH OF CONTRACT
MR. GREENGENES AGREEMENT
26. Paragraphs 1 through 25 are incorporated herein by reference as if fully
set forth below.
27. Paragraph 17 of the Performance Agreement provides that "in the event
the artist is rebooked into the establishment owned or controlled by the Purchaser within
24 months of the termination of this contract, Pegasus shall be paid a commission at the
same rate as provided under this contract. Purchaser agrees to be solely liable for
payment of said commission." See "Exhibit C".
28. Several demands were made on Defendant to pay commissions due
under this Agreement to which no response has been received by Plaintiff.
29. On July 29, 1999, Mr. Greengenes performed at Wanda's nightclub; a
performance for which no commission has been paid to Plaintiff.
30. Wanda's nightclub has scheduled Mr. Greengenes for performances on
October 21, 1999 and December 23, 1999.
WHEREFORE, for all the above reasons, the Plaintiff demands judgment in their
favor in the amount of $450.00, and, in the event Mr. Greengenes performs at Wanda's
for any dates between July 29,1999 and the time of trial, an additional $450.00 per
performance, plus interest with costs in their favor and against Defendants.
Respectfully Submitted
TURO LAW OFFICES
/a',?' 99
Date
32 South Bedford SI
Carlisle, PA 17013
(717)245.9688
Attorney for Plaintiff
DENNIS P. TALTY, P.C.
Dennis P. Tally, Esquire
ID No. 17200
101 West Main Street, 2"d Fl.
Moorestown, New Jersey 08057
(856) j73-8852 V&-'93q-&95'V
Attorney for Defendants
ROBERT KREPICH, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
WANDA'S HOLDIAY INN,
MECHANICSBURG CIVIL TERM
GF INVESTORS, q q -
and GF DEVELOPMENT, INC. NO.6213
Defendants
ANSWER WITH NEW MATTER
1. Defendants are without knowledge sufficient to form a belief as to
the allegations of this paragraph, and as such same are denied.
2. Admitted.
3. Admitted.
4. Defendants are without knowledge sufficient to form a belief as to
the allegations of this paragraph, and as such same are denied.
5. Denied. Defendants are unable to further respond to the
allegations of this paragraph as Defendants have not been supplied with Exhibit
A to Plaintiffs Complaint.
6. The Performance Agreement is a writing and as such speaks for
itself.
1
.
7. Admitted.
8. Defendants are without knowledge sufficient to form a belief as to
the allegations of this paragraph, and as such same are denied.
9. Denied. Defendants are unable to further respond to the
allegations of this paragraph as Defendants have not been supplied with Exhibit
B to Plaintiffs Complaint.
10. Denied. Defendants are unable to further respond to the
allegations of this paragraph as Defendants have not been supplied with Exhibit
B to Plaintiffs Complaint.
11. Admitted.
12. Defendants are without knowledge sufficient to form a belief as to
the allegations of this paragraph, and as such same are denied.
13. Denied. Defendants are unable to further respond to the
allegations of this paragraph as Defendants have not been supplied with Exhibit
C to Plaintiffs Complaint.
14. Denied. Defendants are unable to further respond to the
allegations of this paragraph as Defendants have not been supplied with Exhibit
C to Plaintiffs Complaint.
15. Admitted.
COUNT I: BREACH OF CONTRACT
EMILY'S TOYBOX AGREEMENT
2
16. Paragraphs 1 through 15 are Incorporated by reference as if fully
set forth below.
17. The Performance Agreement Is a writing and as such speaks for
itself.
18. Admitted In part and denied in part. It is admitted that Emily's
Toybox has performed at Wanda's nightclub. The remainder of the allegations of
the paragraph are denied.
19. Admitted in part and denied in part. It is admitted that Emily's
Toybox may perform on the stated dates. The remainder of the allegations of
this paragraph are denied.
20. It is admitted that Plaintiff has demanded payment. The remainder
of the allegations of this paragraph are denied.
WHEREFORE, Defendants demand the entry of judgment dismissing
Plaintiffs complaint with prejudice and awarding Defendants costs and counsel
fees.
COUNT II: BREACH OF CONTRACT
GREEN EGGS AND SPAM AGREEMENT
21. Paragraphs 1 through 20 are incorporated by reference as if fully
set forth below.
22. The Performance Agreement is a writing and as such speaks for
itself.
3
23. Admitted in part and denied in part. It is admitted that Green Eggs
and Spam has performed at Wanda's nightclub. The remainder of the
allegations of the paragraph are denied.
24. It is admitted that Plaintiff has demanded payment. The remainder
of the allegations of this paragraph are denied.
25. Admitted in part and denied in part. It is admitted that Green Eggs
and Spam may perform on the stated dates. The remainder of the allegations of
this paragraph are denied.
WHEREFORE, Defendants demand the entry of judgment dismissing
Plaintiffs complaint with prejudice and awarding Defendants costs and counsel
fees.
COUNT III: BREACH OF CONTRACT
MR. GREENGENES AGREEMENT
26. Paragraphs 1 through 25 are incorporated by reference as if fully
set forth below.
27. The Performance Agreement is a writing and as such speaks for
itself.
28. It is admitted that Plaintiff has demanded payment. The remainder
of the allegations of this paragraph are denied.
29. Admitted in part and denied in part. It is admitted that Mr.
j Greengenes has performed at Wanda's nightclub. The remainder of the
allegations of the paragraph are denied.
4
30. Admitted in part and denied in part. It is admitted that Mr.
Greengenes may perform on the stated dates. The remainder of the allegations
of this paragraph are denied.
WHEREFORE, Defendants demand the entry of judgment dismissing
Plaintiffs complaint with prejudice and awarding Defendants costs and counsel
fees.
NEW MATTER
1) Any entitlement of Plaintiff to commission from the performers at
the nightclub as alleged and any contracts purporting to give him the right to
receive such commission, were in the capacity of agent for the nightclub. Upon
termination of that relationship, he lost any rights to commissions for bands
performing at the nightclub.
2) Any entitlement of Plaintiff to commission from the performers at
the nightclub and any contracts purporting to give him the right to receive such
commission, were contingent on his acting as agent for the performers in
question. Upon termination of those relationships, Plaintiff lost any rights to
commissions for bands performing at the nightclub.
3) Plaintiff is not entitled to receive any commission for any shows
occurring on a Sunday as he affirmatively waived any right to same, and the
alleged contract with Green Eggs and Spam was amended to provide same.
4) The alleged contract with Green Eggs and Spam was amended to
provide that the commission would be 10% or $150, whichever was higher, and
5
Plaintiff Is not entitled to any amount in excess of this amount, and any amount
actually paid at a higher rate shall act as an offset to any other amount due to
Plaintiff.
5) Plaintiff's commissions allegedly due from Defendants as a result of
performances have been paid to him by the performers. Defendant is not liable
to Plaintiff for any commissions received by him for the performers and any other
amounts due to Plaintiff are subject to an offsets from same.
6) Defendants are entitled to offsets against any amount due to
Plaintiff for amounts paid to or appropriated by Plaintiff that were intended for
and/or paid to performers.
7) The alleged contracts between Plaintiff and Defendants are
unenforceable and void due to the doctrine of unconscionability.
8) The alleged contracts between Plaintiff and Defendants are
uneforceable and void due to their illegality.
9) The alleged contracts between Plaintiff and Defendants are
uneforceable and void as against public policy.
WHEREFORE, Defendants demand the entry of judgment
dismissing Plaintiffs complaint with prejudice and awarding Defendants costs
and counsel fees.
/U
D nnis P. Talty, Esquire
Attorney for Defendants
6
VERIFICATION
I, Dennis P. Talty, Esquire, attorney for the Defendants herein, have
sufficient knowledge of the facts contained In this Answer and verify that the
statements In the foregoing are true and correct to the best of my knowledge,
based upon Information received from the Defendants. I understand that false
statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating
to unswom falsification to authorities.
Dated: i Z 3/q? i Li / / f ,
It I De i . Tally, Esquire
7
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A
f
ROBERT KREPICH,
Plaintiff
V.
WANDA'S HOLIDAY INN,
MECHANICSBURG GF INVESTORS,
and GF DEVELOPMENT, INC.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-6213 CIVIL TERM
[_Ii??'??l A,i#iL9.11k &Iil1AM 010AZI
1. Denied. Paragraph 11 of the disputed contract provides "this contract
covers all agreements among or between the parties hereto relative to the transaction
described within this contract and Pegasus Concerts and the artist will not be bound by
any representation or promise not embodied herein or within a written change order
signed by both the Purchaser and an authorized Pegasus Concerts representative."
See Exhibits "A", "B" and "C".
2. Denied. Paragraph 11 of the disputed contract provides "this contract
covers all agreements among or between the parties hereto relative to the transaction
described within this contract and Pegasus Concerts and the artist will not be bound by
any representation or promise not embodied herein or within a written change order
signed by both the Purchaser and an authorized Pegasus Concerts representative."
See Exhibits "A", "B" and "C".
3. Denied. Plaintiff agreed only to waive commission for a Sunday
performance on February 28, 1999 by Green Eggs and Spam. The scope of this
agreement did not Include Sunday performances of any bands scheduled after February
1999.
4. Denied. No written agreement to amend the Green Eggs and Spam
contract exists and consequently any such amendment is void as a violation of
paragraph 11 of the initial Green Eggs and Spam contract. See Exhibit "B".
5. Denied. Plaintiff has received no commissions due as a result of these
contracts from the performers.
6. Denied. No monies were paid to or appropriated by Plaintiff that were
intended for performers,
7. Neither admitted nor denied. This allegation is a conclusion of law to
which no responsive pleading is required.
8. Neither admitted nor denied. This allegation is a conclusion of law to
which no responsive pleading is required.
9. Neither admitted nor denied. This allegation is a conclusion of law to
which no responsive pleading Is required.
WHEREFORE, Plaintiff demands entry of a judgment in their favor and
dismissing Defendant's New Matter with prejudice and awarding costs and attorney's
fees to Plaintiff.
Respectfully Submitted
TURD LAW OFFICES
/z -/y- 9
Date
David A. Greene, Esquir
32 South Bedford Street
Carlisle, PA 17013
(717) 245-9688
Attorney for Plaintiff
NOV-30-98 HON 11:33 PH Hcv-tpAY INN EXEC OFFICES FAX NO. 7119975917 P. 01
11/6/1990. 16144 71..423335 PEGASI3 axtxrs
PAGE 02
PsgaeUs Concerts
PERFORMANCE AORIEMM
This apreerMnt made NOVEMM 28 o 199$ between EMILY'S TOY BOX, herein rakned to W ARTIST end s an
t FURCHABt R
S u
tl
l
SERVICP.B
is wtutng to pay ARTIST br
nder such WMI Wd cond
? as
set fort ro ob y
1. Artist EMILY'S TOY NOX
2. Data of Engsgemeft DECOMBER 3, 1998
3, Vorwe' Name: WANDA'8 HOLIDAY INN
Address: 501 CARU$LE PIKE
CRY; MECHANICSBURO PA,
Phone: (717) 887.0321
Canbol DANEEN WAROO
4. Hours of Erpspemom 8:30 PM TO 1:00 AM
6, Number and MhAw of Seta: 3 sets ® 48 minutes estimated
8, Loaddn / sound chook: 8:00 pm
7. Produ km prWdsd by: THE BAND
8, Prig agreed
upon: t
i1000.00 MINUS A $200.00 DEPOSIT PAYABLE TO PE0A3IU;
- Payment Iemts: $740.000 PAYABLE IN CASH IMMEDIATtLY AFTER THE PERFORMANCE
0. Opening act NONE
10. SpWal provisions; Purchaser will provide full rhier whkh will follow,
lBECUI
WILL PROVIDE I30DA q AND WATER
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FxNl6/t A
.999 09:07 570-752-3335 PEGASUS CONCERTS
12-99 TUE 08:58 Ph EXEC VEOFFICE FAX NO. UfF''-Ult
Pegasus Concerts
PAGE 01
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P.O. Box 400. • Berwick, Pe. 16603 • (570) 7528230 • Fax (510) 752.3335
PERFORMANCE AGREEMENT
This agreement made JANUARY 10 ,11199 between GREEN EGGS AND SPAM, herein referred to as ARTIST and
WANDA'e , herein referred to as PURCHASER is an agreement that PURCHASER Is willing to pay ARTIST for
SERVICES under such terns and conditions as set forth below,
1. Met' GREEN EGGS AND 8PAM
2. Date of Engagement FEBRUARY 25,1999
3. Venue - Name: WANDA'S HOLIDAY INN
Address: 6401 CARLISLE PIKE
City: MECNANICSBURG PA.
Phone: (717) 697.0321
Contact: DANEEN WARGO
4. Hours of 8nga90mont: 10:00 PM TO 1:00 AM
6. Number and Minutes of Sets: 3 sets T SA
0. Loaddn I sound check 6:00 pm
7. Production provided by: THE BAND
8. Price agreed upon: $1300,00 MINUS A $300.00 DEPOSIT PAYABLE TO PEGASUS
- Payment terms: $1000.00 PAYABLE AT THE END OF THE EVENING
9. Opening act HONG
10. Special previsions: Purchaser will provide full rider which will follow.
Additional terms end agreements:
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Signature for PURCHASER Signature for ARTIST:
j6r?ljll 43
02/02/1999 11:05 570-75. 4335
PEGASUS CONCER,.
Pegasus Concerts
PAGE 03
P.O. Box 408. • Barwick, Pa. 18e03 - (570) 782.8238 • Fax (570) 752.3335
PERFORMANCE AGREEMENT
This agreement made FEBRUARY 1 1999 between MR. GREENGENES, herein referred to as ARTIST and WANDA'S
, herein referred to as PURCHASER Is an agreement that PURCHASER is willing to pay ARTIST for SERVICES under
such terms and conditions as set forth below.
1. Artist: MR. GREENGENES
2. Date of Engagement: APRIL 1 ,1999
3. Venue • Name: WANOA'B HOLIDAY INN
Address 5401 CARLISLE PKE
City: McCHANICBBURG PA.
Phone: (717) $97-0321
Contact: DANEEN WARGO
4. Hours of Engagement: 10:30 PM TO 2:00 AM ESTIMATED TIMES
5. Number and Minutes of Sets: 3 eats T SA
6. Load-In /sound check: b:oo pm
7. Production provided by: THE BAND
8. Price agreed upon: 94,600 GUARANTEE PLUS A 80180 SPLIT OF THE DOOR STARTING AT $4,980
. Payment urns: AN ADDITIONAL FEE OF $450.00 TO BE PAID TO PEGASUS IN A DEPOSIT
9. Opening act NONE
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Signature for PURCHASER ae„ddia Signature for ARTIST:
,6 Ngalr c
CERTIFICATE OF SERVICE
I hereby certify that I served a true and correct copy of the Answer to
Defendant's New Matter upon Dennis P. Tally, Esquire, by depositing same in
the United States Mail, first class, postage pre-paid on the ?Jday of
APmM6P?, 1999, from Carlisle, Pennsylvania, addressed as follows:
Dennis R Tally
The Belgravia
Suite 701
1811 Chestnut Street
Philadelphia, PA 19103
TURO LAW OFFICES
k? le? /f
32 South Bedford
Carlisle, PA 17013
(717) 245-9688
Attorney for
.. • .
I, David A. Greene, Esquire, attorney for the Plaintiff herein, have sufficient
knowledge of the facts contained in this Complaint and verify that the statements made
In the foregoing Complaint are true and correct to the best of my knowledge, based
upon Information received from the Plaintiff. I understand that false statements herein
made are subject to the penalties of 18 Pa. C.S.A. §4904 relating to unswom
falsification to authorities.
Date
• ..
ROBERT KREPICH,
Plaintiff
V.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-6213 CIVIL TERM
WANDA'S HOLIDAY INN,
MECHANICSBURG GF INVESTORS,
and GF DEVELOPMENT, INC.,
Defendants
PETITION FOR APPOINTMENT OF ARBITRATORS
TO THE HONORABLE, THE JUDGES OF SAID COURT:
David A. Greene, Esquire, counsel for the Plaintiff in the above action, respectfully
represents that:
1. The above-captioned action is at issue.
2. The claim of the Plaintiff in the action Is $12,000.00.
The counterclaim of the Defendant in the action is $0.00.
The following attorneys are Interested In the case as counsel or are otherwise
disqualified to sit as arbitrators:
WHEREFORE, YOUR Petitioner prays this Honorable Court to appoint three (3)
arbitrators to whom the case shall be submitted.
ORDER OF COURT
AND NOW, this S ay of '2?7 2000, In consideration of the
foregoing Petition, Esq., //t r r"/ /.L , Esq.,
and of 1248, +K L sq.. are appointed arbitrators in the above-captioned
action sprayed for. -'?-
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OF
00 toR 23 AtI 10, 32
CUM*z?,ER,NND COUNTY
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ROBERT KREPICH,
Plaintiff
V.
WANDA'S HOLIDAY INN,
MECHANICSBURG GF INVESTORS,
and GF DEVELOPMENT, INC.,
Defendants
TO: David A. Greene, Esquire
32 South Bedford Street
Carlisle, PA 17013
Dennis P. Talry, Esquire
101 West Main Street, 2' Floor
Moorestown, NJ 08057
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-6213 CIVIL TERM
NOTICE OF HEARING BY BOARD OF ARBITRATORS
YOU ARE HEREBY NOTIFIED that the Board of Arbitrators appointed by the Court in the
above captioned cased will sit for the purpose of their appointment on September 15, 2000 at
11:00AM at V Floor Hearing Room, Old Courthouse, Carlisle, Pennsylvania, at which time
and place you may appear and be heard, together with your witnesses and counsel, if you so
desire.
Date
Board of Arbitrators,
P /J
Austin F. Grogan,/Esq.,
Julie A. McConalry, Esq.
Thomas Dlehl, Esq
Cc: Arbitrators
Court Administrator
Prothonotary
ROBERT KREPICH, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
V. : rJO. 06.62+3- CIVIL TERM
WANDA'S HOLIDAY INN,
MECHANICSBURG GF INVESTORS,
and GF DEVELOPMENT, INC.,
Defendants
ORDER (;, AND NOW, this J day of , 2000, upon receipt of the
Petition to Vacate Arbitration, and it appearing At Counsel for the Defendant agrees to
such, the Arbitration previously scheduled and the appointment of the Board of
Arbitrators is vacated. The parties may amend any necessary pleadings and list the
matter for trial.
BY THE COURT,
9 - 1.5.oo
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00 sEP i S aH 11 : 32
cuMBrxvV u COUNTY
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ROBERT KREPICH,
Plaintiff
V.
WANDA'S HOLIDAY INN,
MECHANICSBURG GF INVESTORS,
and GF DEVELOPMENT, INC.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 00-6213 CIVIL TERM
PETITION TO VACATE ARBITRATION
AND NOW, comes Robert Krepich d/bla Pegasus Concerts by and through his attorney,
David A. Greene, Esquire and alleges as follows:
1. Plaintiff filed a complaint on October 11, 1999 for breach of contract relating to
commissions owed on performances of represented artists at Defendants'
establishment.
2. During the pendency of this litigation, the Defendants have continued to book the
subject artists at their establishment.
3. Because of these continued bookings, the amount of damages, Including fees
and costs, estimated by Plaintiff has exceeded the limits of compulsory
arbitration.
4. Counsel for the Defendants has verbally given consent to removal of this action
from arbitration and transfer Into non-jury trial at the Court of Common Pleas.
WHEREFORE, Plaintiff requests that this matter be removed from the arbitration list and
listed for trial in the Court of Common Pleas.
Respectfully Submitted
Q a/v
Date D d A. Greene,
28 South Pitt Street
Carlisle, PA 17013
(717) 245.9688
Attorney for Plaintiff
CERTIFICATE OF SERVICE I
I hereby certify that I served a true and correct copy of the Praecipe to Remove
from Arbitration upon Dennis P. Tally, Esquire, bylepositing same in the United States
Mail, first class, postage pre-paid on the ??'aay of SEDTEMf?°? , 2000, from
Carlisle, Pennsylvania, addressed as follows:
Dennis P. Talty, Esquire
101 West Main Street
Second Floor
Moorestown, NJ 08057
TURO LAW OFFICES
28 South Pitt Street
Carlisle, PA 17013\
(717) 245-9688
Attorney for Plaintiff
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ROBERT KREPICH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
99-6213 CIVIL
V.
WANDA'S HOLIDAY
INN,
MECHANICSBURG GF
INVESTORS, and GF
DEVELOPMENT, INC.
IN RE: ARBITRATION
ORDER OF COURT
AND NOW, October 10, 2000, the Court having been informed that
the above-case will not be at issue for arbitration, the panel of arbitrators
previously appointed is vacated and the chairman, Austin Grogan, Esquire,
shall be paid the sum of $50.00.
Austin F. Grogan, Esquire
Julie A. McConahy, Esquire
Thomas Diehl, Esquire
dtaia,' -7&&Yy Ci .
Court Administrate
:ssg
/O. 0-77,
-t'
ROBERT KREPICH,
Plaintiff
V.
WANDA'S HOLIDAY INN,
MECHANICSBURG GF,
INVESTORS AND GF
DEVELOPMENT, INC.,
Defendants
TO: Dennis P. Talty, Esquire
The Belgraula, Suite 701
1811 Chestnut Street
Philadelphia, PA 19103
: COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
Case No: 99-6213
PLEASE TAKE NOTICE that you are hereby required, pursuant to Pennsylvania
Rules of Civil Procedure No. 4001, a sea., to serve upon the undersigned, within thirty
(30) days after service of this Notice, your Responses in writing under oath to the
following Document Requests.
Respectfully Submitted
TURO LAW OFFICES
Date
28 South Pitt Strebk
Carlisle, PA 17013
(717) 245-9688
Attorney for Plaintiff
If you object to the production of any document on the grounds that the attorney-
client, attorney work-product or any other privilege is applicable thereto, you shall, with
respect to that document:
1. State the date of the document;
2. Identify its author;
3. Identify each person from whom the document was received;
4. Identify each person who received the document;
5. Identify each person from whom the document was received;
6. State the present location of the document and all copies thereof;
7. Identify each person who has ever had possession, custody or
control of the document or a copy thereof, and
8. Provide sufficient information concerning the document and the
circumstances thereof to explain the claim of privilege and to permit the
adjudication of the propriety of that claim.
As referred to herein, "document' includes written, printed, typed, recorded, or
graphic matter, however produced or reproduced, including correspondence, telegrams,
other written communications, data processing storage units, tapes, contracts,
agreements, notes, memoranda, analyses, projections, indices, work papers, studies,
reports, surveys, diaries, calendars, films, photographs, diagrams, drawings, minutes of
meetings, or any other writing (including copies of any of the foregoing) regardless of
whether you, your former or present counsel, agents, employees, officers, Insurers, or
any other person acting on you behalf, are now in possession, custody, of control.
DOCUMENTS REQUESTED
All statements, signed statements, transcripts of recorded statements or
interviews of any person or witness relating to, referring to or describing any of the
events described in the Complaint.
2. All expert opinions, reports, summaries or other writings in your custody or
control or in the custody or control of your attorney or insurers, which relate to the
subject matter of this litigation.
3. All documents, correspondence or other drawings, sketches, diagrams, or
writings in your custody or control or in the custody or control of your attorney or
insurers, which relate to the subject matter of this litigation.
4. All documents prepared by you, or by any insurer, representative, agent,
or anyone acting on your behalf, except you attorney(s), during the investigation of the
incident in question or any of the events or allegations described in the Complaint.
Such documents shall include any documents made or prepared up through the present
time, with the exclusion of the mental impressions, conclusions, or the opinions
respecting the value or merit of the claim or defense or respecting strategy or tactics.
5. All photographs of any item or thing involved in this litigation.
6. All statements as defined within Pa. R.C.P. §4003.4
7. All statements and/or transcripts of interviews of fact witnesses obtained in
this matter.
8. All documents identified in your Answers to any set of Interrogatories
propounded by any party in this litigation.
9. All documents which you intend to rely upon or introduce at trial of this
litigation.
CERTIFICATE OF SERVICE
1 hereby certify that on this AA;of 2001, a true and
correct copy of the foregoing Request for Production of Documents was served upon
the following by depositing same into the United States Mail, first-class mail, postage
prepaid to:
Dennis P. Tally, Esquire
The Belgrauia, Suite 701
1811 Chestnut Street
Philadelphia, PA 19103
3/ /10/
Date
Respectfully Submitted
TORO LAW OFFICES
28 South Pitt Street
Carlisle, PA 17013
(717) 245-9688
Attorney for Plaintiff
J
ROBERT KREPICH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
99-6213 CIVIL
V.
WANDA'S HOLIDAY
INN,
MECHANICSBURG GF
INVESTORS, and GF
DEVELOPMENT, INC.
IN RE: ARBITRATION
ORDER OF COURT
AND NOW, October 10, 2000, the Court having been informed that
the above-case will not be at issue for arbitration, the panel of arbitrators
previously appointed is vacated and the chairman, Austin Grogan, Esquire,
shall be paid the sum of $50.00.
By the,Court,
Hoffer,
Austin F. Grogan, Esquire
Julie A. McConahy, Esquire
Thomas Diehl, Esquire
Court AdministratV.-
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ROBERT KREPICH, IN TI IE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. CIVIL ACTION - LAW
WANDA'S HOLIDAY
INN, MECHANICSBURG :
GF INVESTORS, and
GF DEVELOPMENT,
INC.,
Defendants NO. 99-6213 CIVIL TERM
ORDER OF COURT
AND NOW, this 23`d day of May, 2001, a pretrial conference in the above matter
is scheduled for Wednesday, July 25, 2001, at 3:00 p.m., in chambers of the undersigned
judge, Cumberland County Courthouse, Carlisle, Pennsylvania. Pretrial memoranda shall
be submitted by counsel in accordance with C.C.R.P. 212-4, at least five days prior to the
pretrial conference.
A NONJURY TRIAL in the above matter is scheduled for Wednesday, August 22,
2001, at 1:30 p.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle,
Pennsylvania.
Ron Turn, Esq.
28 S. Pitt Street
Carlisle, PA 17013
Attorney for Plaintiff
BY THE COURT,
1. ?
Dennis P. Talty, Esq.
101 West Main Street
2nd Floor
Moorestown, NJ 08057
Attorney for Defendants
:rc
?A 5,1-+x.01
RO13IMU KRI?PICI-I,
Plaintiff
1N THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
WANDA'S HOLIDAY INN,
MECHANIC„SBURG GF
INVESTORS, AND GF
DEVEI.OPNIIsNT, INC:.,
Defendants
No. 99-6213
CIVIL. ACTION - LAW
CIVIL TERM
PRAECIPE TO ENTER APPEARANCE
Please enter my appearance as counsel of record for the Defendants in
the above-captioned case.
Respectfully submitted,
ABOM & KUTULAKIS, LLP
Datc: July 20, 2001
L
Joan <nuom,usqutre
racy I.D. No. 77961
Auite 204
8 South Hanover Street
Carlisle, PA 17013
(717) 249-0900
Ron Turo
Attorney for the plaintiff
ROBERT KREPICH,
Plaintiff
V.
WANDA'S HOLIDAY INN,
MECHANICSBURG GF
INVESTORS, AND GF
DEVELOPMENT, INC.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No. 99-6213
CIVIL ACTION - LAW
CIVIL TERM
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving the foregoing document upon
the person listed below by personally delivering a copy of said document to Ron
Turo, Esquire at the following location
Turo Law Offices
28 South Pitt Street
Carlisle, PA 117013
Date: _L ad /Cy
Abom & Kutulakis, L.L.P.
8 South Hanover Street
Suite 204
Carlisle, PA 17013
(717) 249-0900
a _ _.,_.. W..._,..W.,.,,,.,?..,,..,,,
_1 ° ..;
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,,
ROBERT KREPICH,
Plaintiff
V.
WANDA'S HOLIDAY INN,
MECHANICSBURG GF
INVESTORS, AND GF
DEVELOPMENT, INC.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUN'T'Y, PENNSYLVANIA
No. 99-6213
CIVIL TERM
CIVIL ACTION - LAW
DEFENDANTS' REQUEST FOR PRODUCTION OF DOCUMENTS
TO: Plaintiff Robert Krepich
c/o Ron Turo, Esquire
AND NOW, this 20th day of July 2001, come Defendants who request you make
available copies of the following documents widen thirty (30) days of service of this
request
CJs ??t
1. If you object to the production of any documents on the grounds that the
attomey/client, attorney work product or any other privilege is applicable thereto, with
respect to that document:
(a) state its date;
(b) identify its author,
(c) identify each person who prepared or
participated in the preparation of the
documents;
(d) identify each person who received it;
(c) identify each person from whom the
documents were received;
(f) state the present location of the document and
all copies thereof;
(r identify each person who has ever had
possession, custody or control of it or a copy
thereof, and
(h) provide sufficient information concerning the
document and the circumstances thereof to
explain the claim of privilege and to permit tile
adjudication of the propriety of that claim.
2. "You" means plaintiff, Robert Krepich, Pegasus Concerts and/or any
representative, agent, servant, officer, or employee thereof.
3. "Document" includes written, printed, typed, recorded, or graphic matter,
however produced or reproduced, including correspondence, telegrams, other written
communications, data processing storage units, tapes, contracts, agreements, notes,
memoranda, analyses, projections, indices, work papers, studies, reports, surveys, diaries,
calendars, films, photographs, diagrams, drawings, minutes of meetings, or any other
writing (including copies of any of the foregoing, regardless of whether you are now in
possession, custody or control of the original) now in your possession, custody or
control, your former or present counsel, agents, employees, officers, insurers, or any
other person acting on your behalf.
a
1. Please provide copies of any and all documents referred to as a
"Representation Agreement" in paragntphs 4, 8 and 12 of the Complaint filed in this
matter, or any other document under which you claim authorization to act as an agent
or representative one or more of die artists referred to in your Complaint.
2. Please provide topics of any and all documents referred to as a
"Performance Agreement" in paragraphs 5, 9 and 13 of the Complaint filed in this
matter, or any other document under which you claim a right to receive a fee or other
compensation pursuant to the performance by the artists referred to in your
Complaint.
3. With relation to any of the documents identified in paragraphs 1 or 2 of
this request for production of documents, please identify by name the individual or
individuals who signed each document.
4. Please provide a copy of any license you possessed in 1998, 1999, 2000
and 2001, permitting you to act as an agent on behalf of any musical performing
groups, such as Green Egon and Spam, Mr. Greengenes and Emily's Toy Box, during
each one or all of those years.
5. Please provide a copy of any schedule of fees, charges and commissions
filed by you or on your behalf with any Department of the Commonwealth of
Pennsylvania.
6. Please provide a copy of your federal tax returns filed for the years 1998,
1999, 2000 by you, on your behalf or Pegasus Concert's behalf or any other federal
tax return for those same years which would purport to identify to the Internal
Revenue Service any income you and/or Pegasus received from the Defendants
during those years. Please include copies of all 1099 forms that you attached to any
one of said tax returns.
7. Please provide a copy of your federal tax returns filed for the years 1998,
1999, 2000 by you, on your behalf or Pegasus Concert's behalf or any other federal
tax return for those same years which would purport to identify to the Internal
Revenue Service any income you and/or Pegasus received from the performing
groups Green Eggs and Spam, Mr. Grcengcnes and/or Emily's Toy Box during those
years. Please include copies of all 1099 forms that you attached to any one of said tax
returns.
8. Please provide a copy of any and all contracts, written memoranda or
documentation memorializing the relationship between you and/or Pegasus Concerts
and any one of the Defendants.
Date: July 20, 2001
Ron Turo
Attorney for the Plaintiff
Respectfully submitted,
ABOM & RU LAIUS, LLP
John A. om, EsgBrc
Attorney I.D. No. 77961
Suite 204
8 South Hanover Street
Carlisle, PA 17013
(717) 249-0900
ROBERT KREPICH,
Plaintiff
V.
WANDA'S HOLIDAY INN,
MECHANICSBURG Gr
INVESTORS, AND GI4
DEVELOPMENT, INC.,
Defendants
IN THE COURT OIL COAIMON PLEAS Or
CUMBERLAND COUNTY, PENNSYLVANIA
No. 99-6213
CIVIL ACTION - LAW
CIVIL'I'ERM
I hereby certify that I am this day serving the foregoing document upon
the person listed below by personally delivering a copy of said document to Ron
Turo, Esquire at the following location
Turo Law Offices
28 South Pitt Street
Carlisle, PA 17013
Date'. ?O n 1
Attorney ID No. 77961
Abom & Kutulakis, L.L.P.
8 South Hanover Street
Suite 204
Carlisle, PA 17013
(717) 249-0900
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ROBERT KREPICH,
Plaintiff
V.
WANDA'S HOLIDAY INN,
MECHANICSBURG GF INVESTORS,
and GF DEVELOPMENT, INC.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-6213 CIVIL TERM
PLAINTIFF'S PRETRIAL MEMO
Basic Facts as to Liability
The Plaintiff owns and operates a club and concert promotion agency known as
Pegasus Concerts. In that capacity he represents several musical groups including
Emily's Toy Box, Green Eggs and Spam and Mr. Greengenes. In his capacity as a
promoter the Plaintiff entered into agreements with Defendants, a business in
Cumberland County, in November 1998, January 1999 and February 1999. These
agreements all required the payments of commissions to the Plaintiff for each
performance by the specific group at issue. After the initial payments were made
pursuant to the contracts, Plaintiff discovered that the groups continued to perform at
Defendant's place of business and he was not paid his commission as outlined in the
written contracts which have been attached to the Plaintiffs Complaint. The Defendant
has argued that the Plaintiff was operating as an agent for the nightclub and not the
performers. Consequently they have refused to pay the commissions due to Plaintiff.
II. Basic Facts as to Damages
The Plaintiff will show that the total amount due to him Is in excess of $24,000.00
based on the dates that Plaintiff can prove the various groups performed at Defendant's
place of business multiplied by the amount of commission due for each performance.
JUL 2 0 2, I
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III. Principal Issues of Liability and Damages
The primary Issue is the enforceability of the contract entered Into between
Plaintiff and Defendant and the amount of money due to the Plaintiff under said
contract.
IV. Legal Issues
There are no known legal Issues regarding the admissibility of documents.
V. Witnesses
Plaintiff will testify as well as any individuals identified in Defendant's Pre-Trial
Memo and Ron Kamionka, Steve Wyan.
VI. Exhibits
Plaintiff will provide copies of the contracts and a list of performance dates for
each group as well as a chart prepared by Plaintiff calculating the amount of damages
caused by Defendant's breech of the contract.
VII. Status if Settlement Negotiations
The Plaintiff has offered to settle all outstanding Issues between the parties for
the sum of $20,000.00. The Defendant has made no offer in this matter.
Respectfully Submitted,
O/
Date
Ron Turo, Esquire
Turo Law Offices
28 South Pitt Street
Carlisle, PA 17013
(717) 245-9688
CERTIFICATE OF SERVICE
I hereby certify that I served a true and correct copy of the Plaintiffs Pre-Trial
Memo upon Dennis P. Tally, Esquire, by depositing same In the United States Mail, first
class, postage pre-paid on the /? day of ?- ?' , 2001, from Carlisle,
Pennsylvania, addressed as follows:
Dennis P. Tasty, Esquire
101 West Main Street
Second Floor
Moorestown, NJ 08057
TURO LAW OFFICES
'Ron Turo, Esquire
28 South Pitt Street
Carlisle, PA 17013
(717) 245-9688
Attorney for Plaintiff
..r
ROBERT KREPICH,
Plaintiff
V.
IN TH' COURT' OP COMMON PLEAS OF
CUAIBEIRI.AND COUNTY, PENNSYLVANIA
No. 99-6213 CIVIL'I'ERM
WANDA'S HOLIDAY INN,
MECHANICSBURG GF
INVESTORS, AND GF
DEVELOPMENT, INC.
To the Honorable J. Wesley Olen.
DEFENDANT'S PRETRIAL CONFERENCE MEMORANDUM
And Now, come the Defendants, by and through their attorney, John A.
Abom, Esquire of Abom & Kutulakis, LLP, who respectfully submit the following
Pretrial Conference Memorandum pursuant to C.C.R.P. 212-4:
Statement of the Facts as to Liability
't'his is a Breach of Contract Action.
The plaintiff is a theatrical employment agent and the owner of Pegasus
Concerts, a musical talent booking agency. In general terms, the Plaintiff represented
musical performing groups and worked on behalf of those groups to secure dates,
compensation and venues at which those bands would perform. See Complaint
paragraphs 4, 8, and 12.
w\
The Defendants are the owners and operators of Wanda's, an establishment
located on the same premises of the Holiday Inn West, in Flampden Township,
Cumberland County.
At issue in this case are three contracts involving three bands the Plaintiff
represented: Emily's Toy Box, Mr. Grccngcnes and Green Eggs and Spam. See
Complaint at paragraphs 4, 8, and 12. While in his capacity of representing these
three bands, the Plaintiff arranged on behalf of those three bands to play at the
premises of the Defendants', Wanda's Holiday Inn. See Complaint at paragraphs 5, 9,
and 13. The Plaintiff prepared a contract for each engagement. See Complaint and
Reply to New Matter, Exhibits A, B, and C.t
Pegasus Concerts and/or Robert Krepich and Wanda's did not have any
written agreement that delineated the working relationship between them.
The Plaintiff prepared each contract at issue in this case. Each contract
contained a clause that reads as follows:
"17. In the event the Artist is re-booked into the establishment owned or
controlled by the Purchaser within twenty-four (24) months of the termination
of this contract, Pegasus shall be paid a commission at the same rate as
provided under the contract. Purchaser agrees to be solely liable for payment
of said commission."
t the Compliant at paragraphs 5, 6, 9, 10, 13, 17, 22, and 27, refersto Exhibits A, B, or C. I Iowrover, those exhibits were
never anachcd to the Compliant filed with the Court or to the Complaint served upon the defendants. On information
and belief, Defendants believe that the Exhibits A, B, and C attached to Plaintiffs Reply to New Matter are the Exhibits
that Plaintiff refers to as A, B, and C in the Compliant, respectively. Copies of those three Exhibits arc attached to this
Pretrial Memorandum.
None of the Contracts that forms the basis of this action was signed by a
representative and/or agent of the band.
According to Richard Greene, a person who works on behalf of two of the
hands, the Plaintiff sent him a facsimile indicating that he was waiving his commission
for Sunday performances.
According to the Linda Tackett an employee in die Private Employment
Agency Licensing Department of the Pennsylvania Department of Labor and
Industry, the Plaintiff did not possess a license in the years 1998, 1999, 2000 and
during the present year, to operate as an employment agent, as required by 43 P.S.
§538. Further, the Plaintiff did not supply or file wide the Department of Labor and
Industry a schedule of fees, charges, and/or commissions that he intended to charge
for his services, as required by 43 P.S. §545.
As set forth below, it remains the Defendants' position that the Contracts are
unenforceable because they violate the Employment Agency Law, 43 P.S. §535 et. seq.
IL Statement as to the Basic Facts of Damages
If enforceable, clause #17 of each contract would entitle the Plaintiff to the
"commission" at the same rate as provided under die contract. However, none of the
contracts at issue sets forth a "commission."
Within each contract, there is a provision setting forth the price and the
manner of payment for each performance. See Exhibits A, B, and C. It is believed
that the Plaintiff is asserting that his "commission" is an amount equal to the deposit
the Defendants' paid to secure each band's performance for the particular date named
in the contract. If such is the case, Plaintiff's commission must arise out of the
separate agreement into which he and the bands entered. See Complaint, paragraphs
4, 8, and 12.
If the contracts are enforceable and if this Court deems the deposit language in
each contract to be the commission to which the Plaintiff is entitled, the Plaintiff
would be entitled to a commission for each performance of Emily's Toy Box between
December 3, 1998 and December 3, 2000.
If the contracts are enforceable and if this Court deems the deposit language in
each contract to be the commission to which the Plaintiff is (ridded, the Plaintiff
would be entitled to a commission for each performance of Green 1?ggs and Spam
between February 25, 1999 and February 25, 2001.
If the contracts are enforceable and if this Court deems the deposit language in
each contract to be the commission to which the Plaintiff is entitled, the Plaintiff
would be entitled to a commission for each performance of Mr. Greengenes between
April 1, 1999 and April 2001.
Finally, any fee received by the Plaintiff for the services he provided as a
theatrical employment agent is limited to ten (10) percent of the overall amount
earned by each band for each performance. 43 P.S. §574(m).
JU. Principle Ugal Issues as to Liability and Damagcs
a. Employment Agency I.aw (43 P.S. §535 ct. seq.)
Defendants contend that Plaintiff was operating as an unlicensed employment
agent and that his business was a theatrical employment agency, as those terms are
defined in 43 P.S.§536(5)and(13).
In that the Plaintiff was operating unlawfully, a contract unlawfully entitling
him to a fee in unenforceable. Sec Watrel v. Commonwealth. Department of
Education, 488 A2.d 378, (Pa. Cmwlth. 1985)(Agreement which violates statutory
provision or which cannot be effectively performed without violating statute, is illegal,
unenforceable and viod ab initio) appeal granted 497 A2.d 1330, affirmed 518 A.2d
1158 (Pa. 198).
No employment agency, even one that is unlicensed, may legally charge, collect
or receive greater compensation for any service performed by it than is specified in
the schedule filed with the Department of Labor and Industry. 43 P.S. §545. Since
the Plaintiff did not file a schedule of fees with the Department of 11bor and
Industry, he may not collect a fee for his service.
The Employment Agency Law imparts additional requirements upon theatrical
employment agencies. 43 P.S. §572. Under Section 572, the agent must provide a
written contract that sets forth, among other things, the amount of tic salary
promised, the gross commissions or fees to be paid by the applicant and to whom
such commissions and fees arc to be paid. It is believed that no such documents
exists with regard to the three bands at issue in this case, thus, giving further grounds
to find that the contracts at issue arc unenforceable.
Finally, if the contracts in issue are enforceable, the fees that the Plaintiff may
collect are limited to ten (10) percent of the amount earned by each band for each
performance. 43 P.S. §574(m).
b. What is the Commission?
Clause #17 in Exhibits A, B, and C, purport to require the Purchaser (Wanda's)
to pay a commission to Pegasus Concerts at the same rate as set forth in the contract.
Since the contract does not set forth any commission, no liability is imparted upon the
Defendants to pay any commission.
M Summa of Legal Issues regarding Admissibility of Fvidence.
Admissibility to evidence to aid in the construction of the Contract
A contract is ambiguous if it is reasonably susceptible of different constructions
and capable of being understood in more than one sense. Flutchenson v. Sunbeam
Coal ,om., 519 AN 385 (Pa. 1986). Miere the language of the contract is clear and
unambiguous, the focus of the interpretation is upon the terms of the agreement as
manifest expressed, rather than as, perhaps, silently intended. Steuart v. McChesney,
444 A.2d 659 (Pa. 1982).
In this case, there is not ambiguity with regard to the amount and manner of
payment. Those terms are set forth in clause eight (8) of each contract. Despite
Plaintiffs efforts, the Court should not allow evidence on the Plaintiff's behalf to
assist the court with die interpretation of the word "deposit" and the Court should
read the contract within its four corners.
V. Identity of Witnesses
The Defendants intend to call as witnesses the following individuals, in
addition to every witness identified by the Plaintiff-
Richard Greene, representative of the hands Mr. Greengenes and Green Eggs
and Spam;
Greg Eppler, a representative of the hand, Emily's Toy Box;
Linda Tackett, an employee in the Private Employment Agency Licensing
Department of the Pennsylvania Department of Labor and Industry;
The Plaintiff,
A rebuttal witness or witnesses to impeach die Plaintiff's credibility in the event
he has a prior conviction(s) for crimen falsi;
James Hurley, a Wanda's Employee; and
Doreen Wargo, a Wanda's Employee.
VT. Exhibits
Records of performances of the three hands in question;
Records of payments made to die bands in question;
Records of payments made to the Plaintiff;
Written facsimile dated January 1G,1999, written by Plaintiff; and
The three contracts marked as Exhibits A, B, and C.
VII. Status of Negotiations
The Plaintiff recently made a demand of $20,000, which the Defendants are
considering.
Respectfully submitted,
Date: July 23, 2001
Jo'hn A. Abom, Esquire
Attorney I.D. No. 77961
Suite 204
8 South Hanover Street
Carlisle, PA 17013
(717) 249-0900
Ron Turo
Attorney for the Plaintiff
I t ?
ROBERT KREPICH,
Plaintiff
V.
WANDA'S HOLIDAY INN,
MECHANICSBURG GF
INVESTORS, AND GF
DEVELOPMENT, INC.,
Defendants
IN THE COURT' OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No. 99-6213 CIVIL TERM
CIVIL ACTION - LAW
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving the foregoing document upon
the person listed below by personally delivering a copy of said document to Ron
Turo, Esquire at the following location
Turo Law Offices
28 South Pitt Street
Carlisle, PA 17013
Date:
John A. Abom, Esquire
Attorney ID No. 77961
Abom & Kutulakis, L.L.P.
8 South Hanover Street
Suite 204
Carlisle, PA 17013
(717) 249-0900
NOV-30-88 NON 11:33 PH
lr/2511990 16144
VVY INN EXEC OFFICES FAX NO, 7r°9975917 P. 01
71,.,23335 PEGASUS omimmrS PAGE 02
Pegasus Concerts
r.V. no:r 400. - BoWok. Pa:...t 07 • (717) •0270 , Fax (711) ?s25
.PERFORMANCE AOREEMENT
Thls eprsanent made NOVNMGM 11,1$11 between EMILY'S TOY BOX, herein mknw to ae ARTIST and hw'Wm
10 84
CHASER
I
R
tiRRVICES under such I&M and oo
W"babw t PURCHASER M wlNtrg to pry ARTIST br
ndbo„s as
1. ArWt; EMILY'S TOY BOX
2. Cab of En9opmeft DECEMBER 3, lose
3. Venus' Name: WANDA'S HOLIDAY INN
Address: 501 CARLISLE PIKE
CYT, MECHANIC$BURC PA.
Phone: (TiT)I17.0311
cage& DANEEN WAROO
4. Hours of EnQapsrnent: 1:30 PM TO 1:00 AM
1, Number and Mlhuba of Seb: 3 aft ® 41 minutes es*nsted
0. Loeddn / sound dmL- 1:00 Pm
7. Production WmIded by: THE RAND
e. Price agreed upon: I
$1000.00 MINUS A $2$0.00 DEPOSIT PAYAt3LE TO PEOAiUt
- Payment tans: $740.000 PAYABLE IN CAIN IMMEDUIT[LY AFTiR THE PERFORMANCE
0. Opening act: NONE
10. Speclei provisions; Pumheser wgl provide full rhbr which will fallow.
w
Addllbnel Mime and samenr„m!
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Slgnslwa for ARTIST:
'.999 09:07 570-752-3335 PEGASUS CONCEPTS
12-99- TUEE 08.58 Ph EXEC VEOFFICE FAX NO, 11'(F' 91f
Pegasus Concerts
PAGE 01
,r, uJ
P.O. BOX 400. - Berwick, Pe. 18603. (570) 752.8230 • Fax (570) 752-3335
PERFORMANCE AGREEMENT
This agreement made JANUARY 110 ,11111119 between GREEN EGGS AND SPAM, heroin referred to se ARTIST and
WANDA'a , herein referred to as PURCHASER is an agreement that PURCHASER It willing to pay ARTIST for
SERVICES under such terns and conditions as sal forth below,
1. Artist
2. Date of Engagement:
3. Venue - Name:
Addnas:
City:
Phone:
Contact
GREEN EGOS AND SPAM
FEBRUARY 26, 1999
WANDWS HOLIDAY INN
6101 CARLISLE PIKE
MECNANICSBURG PA.
(717) 697.0321
DANEEN WARGO
4. Hours of Engagement: 10:00 PM TO 1:00 AM
6. Number and Minutes of Sete: 3 seta T BA
0. Luad-In ! sound check
7. Production provided by:
8. Price agreed upon:
- Payment terms:
9. Opening act
10. Special provisions:
6:00 pm
THE BAND
111300,00 MINUS A 1300.00 DEPOSIT PAYABLE To PEGASUS
$1000.00 PAYABLE AT THE END OF THE EVENING
NONE
Purchaserwill provide full rider which will follow.
Additional terms end ¦greamenb:
11. TW oonuar ooveN"epreemOntt among erbe11wean she peroet tiered rarlM b w Yerhtaedat GlOnbed vwe:n 11W Oaaacl, ad hasw3 tarerte end w Mist
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mwuwa"va
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14. Tho Mid4 hot W&v for daisys an or me canoetelon of this penprmaoce reTWWrQ frwn sums. WM an the wa% tb or hvbMnp work booby, ap chngi Iht sit a aK
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IS TM ernet=%net be Deemed le he" been mar nerr states POftywanta and shed to OonaWdd and governed eer»rorg the 4a d WI Star. N penes hereby
arPwty wyrp any W+er).eMkAOn 11a w1Vtn tiny mgtd oe encase by vhNle a Oomek or on4nnea. Pwrlseer aro Non Irrtby aprs4 era comaN b tat er augeq a
m4 tw*d CWA of the sale a Perrxytvanh and airy area Nat nay be ennd by such mur% h refMa b NN Ergagemerd Aruffv% sod waNa M agdar a versus.
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out M Anal nrd PWZ& r rbdd rot nee an ell4 mid we agreement Daelpl fa hCuron of air Pnbyltial Mreih.
f0, brrJe Nt PlehYreM Mute q perrNt err Nlht b proceed wit Proran0 Ne 9M;e*% Nre+n ordered a I er ?veuttr, rAthoul w w1AW WnaeN a n a(0elMraa
0040"(01 cwcm rpnWlW Ve. eUnele n"mawr mt". N W44 a Npuaata W, 79roanert. Ne 00WCwM MreW dproa b per w Carader"beJW rd
da"M a cum aeNArre Iowa MMared percentt(?1100%) of ea 4Mrte rdo^nbaot pru n rbum b the ace and aspeneae kwmd by Ne Ca*Om W Wa, malaaw&
blow 0.I neat, rs ancl the INh prepora?ah b NM1 eg?NP YF
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Ppru4 anew be MN atMUnlwrn NlM r APror4Ma et?jpDl urd13ter epeet b oh.ryteaelaprr'herhlalWd W corn WrnmrWll.
Signature for PURCHASER I VV%r v -1 ""- -r Signature for ARTIST:
I
J?;Xh;6jl B
02/02/1999 11:05 570-75. 3335 PEGASUS CONCER,- PAGE' 03
Pegasus Concerts
P.O. Box 408. • Berwick, Pa. 18003 • (570) 762-8238; Fax (570) 752-3335
PERFORMANCE AGREEMENT
Thle agreement made FEBRUARY 1,1999 between MR. GREENGENES, herein referred to as ARTIST and WANDA'S
, herein referred to as PURCHASER Is an agreement fhet PURCHASER is willing to pay ARTIST for SERVICES under
such terms and conditions as set forth below.
1. Artist: MR. GREENGENES
2. Date of Engagement: APRIL 1 ,1990
3. Venue - Name: WANDA'S HOLIDAY INN
Address: 6401 CARLISLE PIKE
City: MECHANICSBURG PA.
Phone: (717) 697-0321
Contact: DANEEN WARGO
4. Hours of Engagement: 10:30 PM TO 2:00 AM ESTIMATED TIMES
5. Number and Minutes of Sets: 3 seta T SA
6. Lood-In I sound check: 5:00 Pm
7. Production provided by: THE BAND
8. Price agreed upon: $4,600 GUARANTEE PLUS A 50150 SPLIT OF THE DOOR STARTING AT $4,950
• Payment terms: AN ADDITIONAL FEE OF $460.00 TO BE PAID TO PEGASUS IN A DEPOSIT
9. Opening act: NONE
10. Special provielons: Purohuer will provide full rider which will follow.
LOrovlda a GOMP ROOMS SODA. JUICE AND WATER
WILL PROVIQ? A DEL! TRaY POR a PEOPLE
Additional terms and agreamerlal
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Isms Of Ilb prepaa/. bae,M Of any ow~ waMd by M rwUaaar afar r4 soceplanaa of M spnN rs,
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berrorlllelaa, ladmM. eadaane. be. Rood. WWI not nbOMt a= of Owwmrnl agencies. IWIcial aeon, KM at God. W any COlar MM beyaW ft Areas bd4
1f. TbY oor11'ed star a O,amM tl nets bean rtMa h M tuM d PerrWyhr+d and aMa D• anaW d and pawwnad aomrdr,p e,a M•'aafaaonaenbbaberWacy8Atle d
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t
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hptral CoCWPl tnaarM lspaaalaaMa, ~P0 h airy Ir,an1Y set 06Ft "m oonbad Or,onww ar M d prole e in saalon p,M to T piWe , V C093 +ab IW art tWaspMsts ttt backttled s? rt k nw by M Ina ow Cal
dsmapes a sum eol/valard bone Isrr,bM paraarn ltoo+ll d to for labor. mesaleY.
Mql Mee. and M ere In pngreaarl b M t
ps) ,aa^M d N Mnn,ruaan d e7a OOr,peot
17. M ha e,`wa M Areal la l?OOUtl 1 by in == rI twa"
Peaaus shad be paid a mmrnisran me Powad to bs adaN table for prinw4 of sad oomisplon.
0
Signature for ARTIST:
SlpnaWro for PURCHASER
,Fg,*51r C
t
ROBERT KREPICH,
Plaintiff
v.
WANDA'S HOLIDAY INN,
MECHANICSBURG GF
INVESTORS, AND GF
DEVELOPMENT, INC.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
99-6213 CIVIL TERM
A pretrial conference in the above-captioned case was
held in the chambers of Judge Oler on July 25, 2001. Present on
behalf of Plaintiff was Ron Turo, Esquire. Present on behalf of
Defendants were John A. Abom, Esquire, and Jason P. Kutulakis,
Esquire. It is noted that Dennis P. Talty, Esquire, is also of
record in the case on behalf of the Defendants.
This is a breach of contract action arising out of
Defendants' alleged failure to pay Plaintiff commissions for
booking certain entertainment for Defendants' establishments. One
defense is that the commissions were not the obligations of
Defendants but of the entertainment figures.
This will be a nonjury trial of at least one half day
in length. By separate order of court, trial in this matter has
been scheduled to commence on Wednesday, August 22, 2001, at 1:30
p.m.
One issue which is expected to arise is whether
Defendants may attempt to prove that the contracts sought to be
enforced by Plaintiff were illegal because they were not
compatible with the act of the Employment Agency Law. It is
Plaintiff's position that this defense has been waived through a
failure to specifically plead it; it is Defendants' position that
the defense was encompassed by paragraphs 7, a and 9 of
Defendants' new matter. Plaintiff's counsel is requested to file
a motion in limine to secure a disposition of this issue. The
Court has indicated to Plaintiff that in the event that the
defense is permitted to be pursued at the trial, it would grant a
continuance to Plaintiff if Plaintiff felt that he was unable to
prepare for the defense prior to August 22, 2001. Plaintiff's
counsel has indicated that he will not be requesting such a
continuance.
Defendants have indicated that they intend to file a
motion for summary judgment based upon the alleged illegality of
the contracts at issue. Plaintiff has indicated that he would
oppose such a motion, and the Court has indicated that it is
unlikely that such a motion could be disposed of prior to the time
scheduled for trial and that the Court, therefore, would be
unlikely to grant such a motion. A denial of such a motion would
be based on its untimeliness and would be without prejudice to
Defendants' right to pursue such a defense if Plaintiff's motion
in limine (to preclude the defense)is disposed of favorably to
Defendants on that issue.
Plaintiff's counsel has indicated that, if the
Plaintiff is not licenced as an employment agent or a theatrical
employment agent, Plaintiff will stipulate to that fact at trial.
With respect to settlement negotiations, it does not
appear to the Court that this case will be resolved.
V\
V
1 C!2
By the Court,
}S
Ron Turo, Esquire
28 South Pitt Street
Carlisle, PA 17013
For the Plaintiff
John A. Abom, Esquire
Jason P.'Kutulakis, Esquire
8 South Hanover Street
Carlisle, PA 17013
For the Defendants
Dennis P. Talty; Esquire
301 West Main Street
2nd Floor
Morrestown, NJ 08057
For the Defendants
pcb
ROBERT KREPICH,
Plaintiff
V.
WANDA'S HOLIDAY INN,
MECHANICSBURG GF
INVESTORS, AND GF
DEVELOPMENT, INC.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
99-6213 CIVIL TERM
IN RE: PRETRIAL
AND NOW, this 25th day of July, 2001, pursuant to an
agreement of counsel reached at a pretrial conference held on this
date in which Plaintiff was represented by Ron Turo, Esquire, and
Defendants were represented by John A. Abom, Esquire, and Jason P.
Kutulakis, a second day of trial is scheduled for Monday,
September 24, 2001, commencing at 1:30 p.m. By previous order of
court a first day of trial was scheduled for Wednesday, August 22,
2001, commencing at 1:30 p.m.
Ron Turo, Esquire
28 South Pitt Street
Carlisle, PA 17013
For the Plaintiff
John A. Abom, Esquire
Jason P. Kutulakis, Esquire
8 South Hanover Street
Carlisle, PA 17013
For the Defendants
Dennis P. Talty, Esquire
101 West Main Street
2nd Floor
Morrestown, NJ 08057
For the Defendants
pcb
By the Court,
Pennsylvania courts do not require parties to identify legal theories in the
pleadings, but only to present "[t]he material facts on which a cause of action or defense
is based ... in a concise and summary form." Pa. R.C.P. 1019(x); Weiss v. Equibank, 313
Pa. Super. 446, 453, 460 A.2d 271, 275 (1983). "A purpose behind the rules of pleading
is to enable parties to ascertain, by utilizing they own professional discretion, the claims
and defenses that are asserted in the case." Krajsa v. Keypunch, Inc., 424 Pa. Super.
2330, 236, 622 A.2d 355, 357 (1993). In certain circumstances, pleadings have been
found to be procedurally insufficient because they failed to notify the adverse party of the
statute or theory upon which their claim or defense was based; however, these pleadings
were also found to be substantively insufficient because they did not present sufficient
facts to establish the claim or defense. See id. at 237, 622 A.2d at 359 ("Even assuming
that appellant satisfied Pa. R.C.P. 1019(a) with respect to his public policy argument, it
would be to no avail for substantive reasons.");
Pa. Super 341, 345-46, 524 A.2d 908, 910 (198
failed to identify the statute underlying the clan
did not present facts to satisfy the elements of t
Transp. v. Shipley Humble Oil Co., 29 Pa. Corr
("[A]lthough a party need not specifically plea,
must be pleaded to bring the case with the apps
Association of Meat Processors, the Pennsylva
illegality of a contract is ... a question not ent
whenever it appears that the enforcement of a u
court should dismiss the proceedings of its owr
Processors v. Casualty Reciprocal Exchange,'
In that case, the pleadings failed to raise the del
illegality of the contract at all; yet, the Court fo
1? ?U
W. (0
d/ch )t C
?=a1 it
r
IP•? \ It) ?Zr C r G L?
f
should have been considered at trial. Id. at 68-69, 588 A.2d at 496.
11 ti,
Pennsylvania courts do not require parties to identify legal theories in the
pleadings, but only to present "[t]he material facts on which a cause of action or defense
is based ... in a concise and summary form." Pa. R.C.P. 1019(a); Weiss v. Equibank, 313
Pa. Super. 446, 453, 460 A.2d 271, 275 (1983). "A purpose behind the rules of pleading
is to enable parties to ascertain, by utilizing they own professional discretion, the claims
and defenses that are asserted in the case." Krajsa v. Keypunch, Inc., 424 Pa. Super.
2330, 236, 622 AN 355, 357 (1993). In certain circumstances, pleadings have been
found to be procedurally insufficient because they failed to notify the adverse party of the
statute or theory upon which their claim or defense was based; however, these pleadings
were also found to be substantively insufficient because they did not present sufficient
facts to establish the claim or defense. See Id. at 237, 622 AN at 359 ("Even assuming
that appellant satisfied Pa. R.C.P. 1019(x) with respect to his public policy argument, it
would be to no avail for substantive reasons."); Dickerson v, Brind Truck Leasing, 362
Pa. Super 341, 345-46, 524 AN 908, 910 (1987) (finding that the complaint, which
failed to identify the statute underlying the claim, was procedurally insufficient because it
did not present facts to satisfy the elements of the statutory cause of action); Pa. Dep't of
Transp. v. Shipley Humble Oil Co., 29 Pa. Commw. 171, 174, 370 AN 438, 440 (1977)
("[A]lthough a party need not specifically plead the Act of Assembly ... sufficient facts
must be pleaded to bring the case with the appropriate statute."). Further, in American
Association of Meat Processors, the Pennsylvania Supreme Court stated that "the
illegality of a contract is ... a question not entirely controlled by the rules of pleading;
whenever it appears that the enforcement of a contract would violate public policy, the
court should dismiss the proceedings of its own motion." American Assn of Meat
Processors v. Casualty Reciprocal Exchange, 527 Pa. 59, 68, 588 AN 491, 496 (1991).
In that case, the pleadings failed to raise the defense of void as against public policy or of
illegality of the contract at all; yet, the Court found that the issue was not waived and
should have been considered at trial. Id. at 68-69, 588 AN at 496.
ROBERT KREPICH,
Plaintiff
V.
WANDA'S HOLIDAY .
INN, MECHANICSBURG :
GF INVESTORS, and GF :
DEVELOPMENT, INC., :
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 99-6213 CIVIL TERM
ORDER OF COURT
AND NOW, this 2"d day of August, 2001, upon consideration of Plaintiff's
Motion in Limine, a Rule is hereby issued upon Defendants to show cause why the relief
requested should not be granted.
RULE RETURNABLE within 10 days of service.
BY THE COURT,
Ron Turo, Esq.
28 South Pitt Street
Carlisle, PA 17013
Attorney for Plaintiff
John A. Abom, Esq.
8 South Hanover Street
Suite 204
Carlisle, PA 17013
trt\?i'ri1.lSV!J7d
Dennis P. Talty, Esq. ?11N^? "''??
101 West Main Street i 0 :7 J(1'1
Second Floor 10
Moorestown, NJ 0807 "
..j I
:rc
FILE COPY
ROBERT KREPICH,
Plaintiff
V.
WANDA'S HOLIDAY INN,
MECHANICSBURG GF INVESTORS,
and GF DEVELOPMENT, INC.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO.X-6213 CIVIL TE M i
l' t i_7?r,
PLAINTIFF'S MOTION IN LIMINE
AND NOW COMES the Plaintiff, Robert Krepich, by and through his attorney,
Ron Turo, Esquire, and files the following Motion in Limine:
Plaintiff, Robert Krepich, brought the aforementioned action against
Defendants requesting payments of commissions to him from his contract with
Defendants over a course of two (2) years.
2. Defendants filed an Answer to Plaintiffs original Complaint and a New
Matter within which they sought to raise defenses of illegality, unenforceability, and a
contract void against public policy.
3. At no time did the Defendants identify to the Plaintiff any specific section
of law that they determined was either illegal or void nor did they, at any time In the
pleadings,. cite a statute or even a specific area of the law that they indicated was
violated by the arrangement between the Plaintiff and Defendants.
4. For the first time, upon receipt of Pre-Trial Memo, Plaintiff was formally
advised of an allegation by Defendants that the contract between himself and
Defendants was void under the Employment Agency Law. This law had never
previously been cited or mentioned to Plaintiff either formally through the pleadings or
informally through counsel.
5. At the time of the Pre-Trial Conference Defendants again attempted to
assert that the Employment Agency Law would void the contract between the parties
and thus sought the Court's allowance for the entry into evidence of this information.
This was accomplished over vehement objection of Plaintiff based on a clear violation of
The Pennsylvania Rules of Civil Procedure.
6. In Commonwealth of Pennsylvania Department of Transportation v.
Shipley Humble Oil Comp, 370 A.2d 438 (Pa. Commonwealth 1977) the Court
reviewed similar pleadings filed in a case including a pleading "In operating said motor
vehicles in violation of the laws of the Commonwealth of Pennsylvania in such cases
made and provided". The Court, in reviewing the failure of the pleading to conform to
Rules of Civil Procedure, specifically Pa. R.C.P. 1019(a) stated "although a party need
not specifically plead the act of assembly ostensibly violated, sufficient facts must be
pleaded to bring the case within the appropriate statute" Id
7. The Court's decision in Shipley Humble, relates directly to the instant
matter where Defendants attempted to raise a defense that provided no particular facts
or even a hint of the supposed statute alleged to be violated. Like the Shipley Humble
case, this Court should now refuse to allow Defendants this excessively late opportunity
in such a civil action.
8. In Dickerson v. Brind Truck Leasing, 524 A 2d 908 (Pa. Super 1985)
Judge Montemuro discussed the ambush-like scenario a party would be faced with if
one party is allowed to vaguely plead a cause of action or defense. "We acknowledge
that Pa.R.C.P. 1019(a) requires the Plaintiff to provide only a "concise and summary"
statement of the "material facts" to underlie Plaintiffs claims. Nevertheless the
Complaint must notify the Defendant of the Plaintiffs claims by stating the grounds upon
which those claims rest and by identifying the issues in dispute....this notice enables the
Defendant to prepare the proper and responsive defense ...It also promotes the speedy
and inexpensive resolution of disputes. The Complaint in this case failed to notified
Brand th-it Mr. Dickerson was asserting a claim under the No-Fault Act. In fact, Mr.
Dickerson appears to deliberately avoided pleading such claim...Brind therefore could
not have known from reading the Complaint that it would have to defend an action
governed by no-fault. For the past five (5) years, Brind has focused its entire defense
against an apparently ordinary common-law tort claim. The No-Fault Act in Bond v.
Gallen played no part. We decline to change the course of litigation this far down
stream merely because Mr. Dickerson raised no-fault in his Answer to Brind's Motion for
Summary Judgment". Id at 910, 911. As in the instant case, the defenses raised by
Defendants did not lead the Plaintiff to any understanding or hint that allegations under
the Employment Agency Law would be litigated. Rather Plaintiff has consistently
proceeded with his claim that the Defendants violated a common law contract matter
solely at the heart of the case.
9. Finally In Kralsa v. Keypunch, Inc., 622 A 2d 355 (Pa. Super 1992) Judge
Popovich writing for the Superior Court discussed situations where allegations are
raised in pleadings concerning the violation of public policy. "Pa.R.C.P. 1019(a) has
been construed to mean that the Complaint must not only apprise the Defendant of the
claim being asserted, but it must also summarize the essential facts to support the
claim .... We recognize the proposition that the Rules of Civil Procedure are to be
liberally interpreted, however, liberal construction does not entail total disregard of those
Rules concerning pleading. A purpose behind the Rules of Pleading is to enable parties
to ascertain, by utilizing their own professional discretion, the claims and defenses that
are asserted in this case. This purpose would be thwarted if Courts, rather than the
parties, were burdened with the responsibility of deciphering the cause of action from a
pleading of facts which obscurely support the claim in question. Parties ought not to be
allowed to delegate their duties under the Rules of Civil Procedures to our Courts."
Id at 357. The Defendants have not pled any facts which would reasonably point the
Plaintiff to assume a supposed violation of the Employment Agency Law. A broad,
general and deliberately evasive pleading does not meet the requirements of 1019(a)
nor does it fairly and appropriately provide the other party with sufficient facts in order to
present a defense. In fact, as mentioned above, the Plaintiff never even knew about
this defense until the time of the Pre-Trial Memo. The cases cited above stand clearly
for the proposition that Courts will not allow such litigation by ambush at such a late
date in litigation where the cause had been scheduled for trial and the parties were
prepared to proceed on the issues enumerated in the Plaintiffs Complaint.
WHEREFORE, for all the above reasons, the Plaintiff, Robert Krepich, by and
through his attorney, Ron Turo, Esquire, respectfully request this Court to deny
Defendants request to Introduce any evidence of Plaintiffs alleged violation of the
Employment Agency Law or any other state statute at the time of trial.
/O/
Date
AFF.
Ron Turo, Esquire
28 South Pitt Street
Carlisle, PA 17013
(717) 245-9688
Attorney for Plaintiff
CERTIFICATE OF SERVICE
I hereby certify that I served a true and correct copy of the Plaintiffs Motion in
Limine upon John A. Abom, Esquire, and Dennis P. Tally, Esquire, by depositing same
in th United States Mail, first class, postage pre-paid on the day of
, 2001, from Carlisle, Pennsylvania, addressed as follows:
John A. Abom, Esquire
Abom & Kutulakis
8 South Hanover Street
Suite 204
Carlisle, PA 17013
Dennis P. Tasty, Esquire
101 West Main Street
Second Floor
Moorestown, NJ 08057
LAW OFFICES
Ron Turo, Esquird
28 South Pitt Street
Carlisle, PA 17013
(717) 245-9688
Attorney for Plaintiff
460 A.2d 271, 313 Pa.Super. 446, Weiss v. Equibank, (Pa.Super, 1983) Page I
0274 of process, since the complaint does not aver
the elements of such a cause of action.
petition for allowance of appeal denied December
31, 1980.
Equibank also argues that the rule of Lamp v.
Heyman does not allow for a distinction between
negligent and Intentional conduct, but applies quite
simply where the plaintiff does not carry out his
responsibility to do all that is required of him.
Ambridge and DeNino assert in their brief that the
statute of limitations for an action in trespass to real
property, and the rule of Lamp v. Heyman, bar the
complaint, which they characterize, without
argument, as a cause of action to deprive Weiss of
the use of their building and to obstruct Weiss'
business operations.
In an attempt to spin a golden thread from this pile
of straw we shall sift through what the complaint
consists of, [313 Pa.Super. 4521 what the trial court
in its opinion extracted from the pleadings, and what
appellants now argue to us. First we must
emphasize the rule as to the granting of a motion for
summary judgment.
Pennsylvania Rule of Civil Procedure 1035
provides that summary judgment is to be entered
only if "the pleadings, depositions, answers to
interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter
of law." Pa.R,C,P, 1035(b). The moving party
has the burden of demonstrating that no genuine
issue of material fact exists and that it is entitled to
judgment as a matter of law. In deciding whether
this burden has been satisfied, the court must
examine the record in the light most favorable to
the non-moving party. Amabile v. Auto Kleen Car
Wash, 249 Pa.Super, 240, 376 A.2d 247 (1977):
Schacter v. Albert, 212 Pa.Super. 58, 239 A.2d
841 (1968). The court is not to resolve any
genuine issue of material fact: its sole
responsibility is to determine whether such an issue
exists. Moreover, the court should enter summary
judgment only when the case is clear and free from
doubt. Amabile v. Auto Kleen Car Wash, supra;
McFadden v. American Oil Co., 215 Pa.Super. 44,
257 A.2d 283 (1969).
Tom Morello Construction Co. v. Bridgeport
Federal Savings and Loan Association, 280
Pa.Supcr, 329, 334, 421 A.2d 747, 749.50 (1980),
In granting Equibank's motion for summary
judgment the trial court decided that Equibank was
entitled to judgment as a matter of law because (1)
the action against Equibank was barred by the
passing of time and (2) Equibank would not be a
proper party to an action for malicious use of
process once such an action were to accrue.
The complaint contains essentially the following
allegations: that Equibank desired to purchase the
Weiss property and made an offer which was
refused; that Equibank [313 Pa.Super, 453)
representatives and DeNino met at the Weiss
property after the close of business; that DeNino,
alleging dangerous conditions, roped off and
attached handwritten notices to the Weiss building
without notice to Weiss; that Weiss believes such
action to have been undertaken pursuant to a
conspiracy between DeNino and Equibank to Induce
Weiss to sell the building to Equibank at Equibank's
price; that the defendants conspired to injure Weiss'
business and to compel them to sell to Equibank;
that the defendants conspired to effect their purpose
by closing down the Weiss building; that the
building was not in a dangerous condition; and that
Weiss has lost money due to the loss of business, of
customers and of Its position in the community,
together with the expense of appealing the
Borough's action; and that it was the "unlawful and
malicious" actions of the defendants which caused
injury to Weiss.
111121 Pennsylvania Rule of Civil Procedure
1019(x) provides that the "material facts on which a
cause of action ... is based shall be stated in a
concise and summary form." Tbis has been
interpreted to mean that the complaint must apprise
the defendant of the nature and extent of the •275
plaintiffs claim so that the defendant has notice of
what the plaintiff Intends to prove at trial and may
prepare to meet such proof with his own evidence.
Laursen v. General Hospital of Monroe County, 259
Pa.Super. 150, 393 A.2d 761 (1978), rev'd on other
grounds, 494 Pa. 238, 431 A.2d 237 (1981).
Furthermore, a plaintiff is not obliged to identify the
legal theory underlying his complaint, as the burden
of discovering such is on the court. DeiCome v.
Stefonick, 268 Pa.Super, 572, 408 A.2d 1151 (1979)
f+?
ti(t,l.
Copyright (c) West Group 2001 No claim to original U.S. Govt, works
460 A.2d 271, 313 Pa.Super. 446, Weiss v. Equibank, (Pa.Super. 1983)
The Weiss
notice of
defendants to
closed down
business.
complaint is
decide, a [3
alleging mall
the plaintiffs'
maliciously
business.
Page 2
matters, a plaintiff should comply with local
practice as to the delivery of the writ to the sheriff
for service. If under local practice it is the
prothonotary who both prepares the writ and
14 delivers it to the sheriff, the plaintiff shall have
we do not here vw~
cause of aetiou, el"
(FN4) injury to t 001
a conspiracy to
to injure the
With respect to the cause of action for injury to the
Weiss business, the issue presented to us is the
Lamp v. Heyman issue. This issue arises because of
the delay by Weiss in setting in motion the
procedure necessary to spark service of the writ of
summons. Seepages 2-3 supra.
Appellants argue that their situation does not fall
within the Lamp v. Heyman proscription because (1)
they did not act intentionally or in bad faith and (2)
the supreme court In lamp did not specify that the
procedure for service had to be under way within
thirty days of the filing.
We do not accept this argument. The supreme
court ruled in Lamp that plaintiffs are to carry out
promptly their responsibilities with respect to
arranging for service. The supreme court's exact
words were:
Since the manner in which writs of summons are
to be prepared and delivered to the sheriff for
service is not covered by our rules and since there
are differences among the judicial districts of
Pennsylvania in the procedures followed in these
complaint in effect
an alleged conspire
have the Weiss b
and thereby to da
This would appear to
sufficient, which
13 Pa.Super. 454]
cious use of process,
business, (FN5) and
use process and/or
attempts to give
cy between the
uilding officially
mage the Weiss
be, then, if the
131[4115] First, neglecting to pay the sheriffs fee
was one of the examples given by the supreme
court, 469 Pa. at 472, 366 A.2d at 886, of methods
used by plaintiffs to delay service of the writ.
Second, simple neglect or mistake is an example of
failing to fulfill the responsibility on plaintiff or his
counsel to see to it that the requirements for service
are carried out. See Delphus v. Kastanek, 267
Pa.Super. 26, 405 A.2d 1285 (1979), Compare
Pannlll v. Seahorne, 278 Pa.Super. 562, 420 A.2d
684 (1980), Untoward circumstances, such as a
third person preventing delivery to the sheriff of the
writ, may except a plaintiff from the rule of Lamp,
see, e.g., Sweet v. Ayres, 277 Pa.Super. 236, 419
A.2d 749 (1980), but the facts of this case do not
warrant such an exception. We affirm the dismissal
by the trial court of a claim against all the
defendants for Injury to the Weiss business, or as the
trial court characterized it, for trespass to real
property, on the grounds that by neglecting to do
Copyright (c) West Group 2001 No claim to original U.S. Govt. works
done all that Is required of him when he files the
praecipe for the writ: the commencement of the
action shall not be affected by the failure of the
writ to reach the sheriffs office where the plaintiff
is not responsible for that failure. Otherwise,1313
Y Pa.Super. 4551 the plaintiff shall be responsible
r for prompt delivery of the writ to the sheriff for
y 3)?? service. Cf. Pa.R.C.P. 1009.
N
Lamp v. Heyman, 469 Pa. at 478.79, 366 A.2d at
889.
460 A.2d 271, 313 Pa.Super. 446, Weiss v. Equibank, (Pa.Super. 1983) Page 1
0278. silent acquiescence in the acts of another,
nor for appearing as a witness against the accused,
even though his testimony is perjured, since the
necessities of a free trial demand that witnesses arc
not to be deterred by fear of tort suits, and shall be
immune from liability. On the other hand, if he
advises or assists another person to begin the
proceeding, ratifies It when it Is begun in his
behalf, or takes any active part in directing or
aiding the conduct of the case, he will be
responsible. The question of information laid
before prosecuting authorities has arisen In many
cases. If the defendant merely states what he
believes, leaving the decision to prosecute entirely
to the uncontrolled discretion of the officer, or if
the officer makes an independent Investigation, or
prosecutes for an offense other than the one
charged by the defendant, the latter is not regarded
as having instigated the proceeding; but if it is
found that this persuasion was the determining
factor In inducing the officer's decision, or that he
gave information which he knew to be false and so
unduly influenced the authorities, he may be held
liable.
W. Prosser, Handbook of the Law of Torts § 119
(1971) (footnotes omitted) (emphasis added).
That portion of the order which purports to
prejudice the plaintiffs' rights to bring an action
against Equibank should case no. 587 terminate
favorably to the plaintiffs is vacated.
The order of the trial court as so modified is
affirmed. Jurisdiction is relinquished.
(FNI.) That other proceeding, Weiss v. Rodlo et
al., at No. 587 of 1978 (C. P. Beaver County) is an
appeal from an Ambridge Borough Board of
Appeals decision adverse to appellants.
(FN2.) See Weiss v. Equibank et al., No. 1203 of
1979, slip op. at 3 (C.P. Beaver County, filed
October 22, 1981), describing this procedure.
(17143.) The trial court used the transitional rule of
the Judicial Code, Act of July 9, 1976, P.L. 586,
No. 142, § 25 (see 1976 P.L. at page 814, and 42
Pa.C.S.A. at § 5521 (Purdon 1981) 1. The effect
of this rule is that since the former statute of
limitations for trespass actions was six years, 12
P.S. § 31 (repealed), and the new limitation is two
years, 42 Pa.C.S.A. § 5524, in this case the
plaintiff had until June 27, 1979 to commence a
suit for a claim in trespass which arose on August
13, 1976.
[313 Pa.Super. 4601 [81 We interpret these
authorities to indicate that one who thus causes
officials to take certain legal action is a proper party
defendant in an action for malicious use of process,
and the fact that one is not a party to those
proceedings is of no significance, provided the
requisite elements are satisfied.
As we view the pleadings before us, we cannot say
that Equibank is per se not a proper party to a
possible future lawsuit for malicious use of process.
(FNIO) Whether Equibank Initiated civil
proceedings wrongfully would seem to be a question
of fact to be found at a trial. The trial court erred in
deciding at this stage that Equibank could not be a
party to such another future lawsuit.
We conclude that any cause of action alleged in
this complaint, other than that which has not yet
accrued, is barred by the statute of limitations and
the doctrine of Lamp v. Heyman. That portion of
the order of the trial court dismissing the within
action against defendants Equibank. DeNino and the
Borough of Ambridge is therefore affirmed.
(FN4.) This common law tort has been codified,
with some modification, by the Act of December
19, 1980, P.L. 1296, No. 232, § 1; 42 Pa.C.S.A.
§§ 8351.8354 (Pardon Pamp.1982).
(FNS.) The tort of malicious interference with
business has been specifically defined by the
Restatement (Second) of Tons (1979). See, e.g.,
§ 766 B--Intentional Interference with Prospective
Contractual Relation. See Thompson Coal Co. v.
Pike Coal Co., 488 Pa. 198, 207-08, 412 A.2d
466, 470-71 (1979).
(FN6.) See note 4 supra.
(FN7.) In Publix, 347 Pa. at 349, 32 A.2d at 415,
the court said 'the ... essentials [for an action for
malicious arrest) are applicable to an action for
malicious use of civil process.'
(FN8.) Section 653, Comment f, provides:
f. Procuring the institution of criminal
proceedings-inducing private person to initiate
criminal proceedings. It is not necessary to
Copyright (c) West Group 2001 No claim to original U.S. Govt. works
460 A.2d 271, 313 Pa.Super. 446, Weiss v. Fquibank, (Pa.Super. 1983)
liability under the rules stated in this Section that
the defendant personally or through an agent shall
have made the formal charge upon which the
proceedings were Instituted. It is enough that he
has Induced a third person to make the charge. He
cannot, however, be held liable for procuring the
Institution of criminal proceedings merely because
his actions caused a third person to make a formal
charge. Thus one who merely encourages or
advises a third person to bring proceedings that the
third person already has in contemplation, does not
thereby procure the institution of the proceedings.
If, however, he urges the bringing of proceedings
or insists that they be brought by a third person
who previously had no intention of doing so, a
finding that he procured the institution of the
proceedings subsequently brought by the third
person may be justified.
Page 2
In Curley v. Automobile Finance Co., 343 Pa.
280, 289, 23 A.2d 48, 52 (1941), our supreme
court quoted the earlier version (1938 ed.) of
section 653. In Bell v. Beneficial Consumer
Discount Co., 465 Pa. 225, 235 n. 19, 348 A.2d
734, 739 n. 19 (1975), it quoted the earlier version
of section 674.
•278_ (FN9.) See note 7 supra.
(PNIO.) We here emphasize that we express no
opinion whether the complaint at issue in this case
satisfies the Rule 1019(a) requirements for a
complaint for a claim in malicious use of process
even considering the admitted lack of the
requirement that the process maliciously used must
have terminated in the plaintiffs favor.
Copyright (c) West Group 2001 No claim to original U.S. Govt. works
5
622 A.2d 355, 424 Pa.Super. 230, Krajsa v. Keypunch, Inc., (Pa.Super. 1993)
•355 622 A.2d 355
424 Pa.Supcr. 230, 8 IER Cases 1816
Superior Court of Pennsylvania.
Michael J. KRAJSA, Appellant,
V.
KEYPUNCH, INC., Diane Colfer, Robert B.
Colfer, Appellees.
Argued Jan. 27, 1993.
Filed March 22, 1993.
At-will employee brought wrongful discharge and
other claims against former employer. The Court of
Common Pleas, Lehigh County, Civil Division, No.
87-C-1391, Young, 1., entered judgment for
employer and employee appealed. The Superior
Court, No. 02293 Philadelphia 1992, Popovich, J.,
held that: (1) discharge did not violate public
policy; (2) Pennsylvania does not recognize claim
for discharge with specific Intent for harm; (3)
evidentiary rulings were proper; and (4) procedural
error, if any, was harmless.
Affirmed.
McEwen, J., concurred in result.
West Headnotes
(I I Pleading 4=48
302 ----
30211 Declaration, Complaint, Petition, or
Statement
302k48 Statement of Cause of Action in General.
While complaint need not Identify specific legal
theory underlying claim, it must apprise defendant
of claim being asserted and summarize essential
facts to support that claim; liberal construction of
pleadings does not require total disregard of
pleading rules. Rules Civ.Proc., Rules 126,
1019(a),42 Pa.C.S.A.
121 Pleading IS:=48
302 -.--
30211 Declaration, Complaint, Petition, or
Statement
302k48 Statement of Cause of Action in General.
Purpose behind rules of pleading is to enable
parties using their own professional discretion to
ascertain claims and defenses asserted in case;
purpose would be thwarted if courts, rather than
Page I
parties, were burdened with responsibility of
deciphering cause of action from pleading of facts
which obscurely support cause of action in question.
Rules Civ.Proc., Rules 126, 1019(x), 42 Pa.C.S.A.
131 Master and Servant 439(1)
255 ----
2551 The Relation
2551(C) Termination, Discharge, and Discipline
2551(C)2 Discharge or Discipline
255k34 Actions for Wrongful Discharge
25509 Pleading
255k39(1) In Genera).
Allegation that employee had been discharged in
retaliation for having expressed willingness to report
unlawful business practices of employer did not state
cause of action for wrongful discharge on public
policy grounds, where averments characterized
employer's actions as intentional, wrongful, and for
purpose of harming employee; rather, language of
complaint warranted claim for wrongful discharge
based solely on specific intent to harm, and that
claim did not exist under state law. Rules
Civ.Proc., Rule 1019(x), 42 Pa.C.S.A.
141 Master and Servant 034.1
255 ----
2551 The Relation
2551(C) Termination, Discharge, and Discipline
2551(C)2 Discharge or Discipline
25504 Actions for Wrongful Discharge
25504.1 In General.
General rule is that there is no common-law cause
of action for discharge of at-will employee;
exceptions to general rule arc recognized only in
limited circumstances in which discharge of at-will
employee threatens clear mandate of public policy.
151 Master and Servant (8=20
255 ..--
2551 The Relation
2551(C) Termination, Discharge, and Discipline
2551(C)I In General
255k201ndefinite Term.
At-will employee may be discharged for good
reason, bad reason, or no reason at all.
161 Master and Servant x30(6.10)
255 ....
2551 The Relation
2551(C) Termination, Discharge, and Discipline
2551(C)2 Discharge or Discipline
25500 Grounds and Liabilities
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622 A.2d 355, 424 Pa.Super. 230, Krajsa v. Keypunch, Inc., (Pa.Super. 1993)
255k30(6.5) Retaliatory Discharge or
Discipline
255k30(6.10) In General.
Discharge of at-will employee allegedly in
retaliation for employee's having threatened to
report employer's unlawful business practices to
authorities did not violate public policy; public
policy employee asserted in support of claim was not
embodied in any legislative or constitutional
provision, and court lacked authority to create public
policy on its own initiative.
[71 Master and Servant Cr=30(I.10)
255 ---
2551 The Relation
255I(C) Termination, Discharge, and Discipline
2551(C)2 Discharge or Discipline
25500 Grounds and Liabilities
255k30(1.10) Public Policy Considerations.
"Violation of public policy" as will support at-will
employee's cause of action for wrongful discharge
occurs only where termination of employment
results from employee's performance of duty to act
in accordance with applicable law.
181 Master and Servant x30(6.35)
255 ....
2551 The Relation
255I(C) Termination, Discharge, and Discipline
2551(C)2 Discharge or Discipline
255k30 Grounds and Liabilities
255k30(6.35) Exercise of Constitutional or
Political Rights; Criticism and
'Whistle Blowing.".
Whistleblower law did not apply to wrongful
discharge claim of at-will employee of private
company which performed government contracts;
scope of law was limited to employees discharged
from governmental entities or other entities created
or funded by government. 43 P.S. §§ 1421 et seq.,
1422, 1423(a).
19] Master and Servant 034.1
255 ....
2551 The Relation
2551(C) Termination, Discharge, and Discipline
2551(C)2 Discharge or Discipline
25504 Actions for Wrongful Discharge
25504.I In General.
There is no cause of action for wrongful discharge
of at-will employee based on employer's specific
intent to harm employee; only exception to
employment-at-will doctrine is for discharges which
violate clear mandates of public policy.
Page 2
[101 Witnesses (8=344(l)
410 ----
4101V Credibility and Impeachment
4101V(B) Character and Conduct of Witness
410k344 Particular Acts or Facts
410k344(1) In General.
Evidence of specific bad acts may not be used to
impeach witnesses.
[ 11 ] Appeal and Error e:= 1043(1)
30 ----
30XVI Review
30XVI(J) Harmless Error
30XVI(J)6 Interlocutory and Preliminary
Proceedings
30kI043 Interlocutory Proceedings
30k 1043(1) In General.
Even if decision at trial to preclude wrongful
discharge claim had effect of Involuntary nonsuil,
error, if any, was harmless; wrongful discharge
claim lacked substance and was properly dismissed
irrespective of fact that finding was made at
beginning of trial.
0356 [424 Pa.Super. 233] Donald E. Wieand, Jr.,
Allentown, for appellant.
Mark Malkames, Allentown, for appellees.
Before McEWEN, POPOVICH and BROSKY. JJ.
POPOVICH, Judge.
This is an appeal from the judgment of the Court
of Common Pleas of Lehigh County in a wrongful
discharge case. Upon review, we affirm.
On January 17, 1989, appellant, Michael J. Krajsa
filed a complaint against Keypunch, Inc., Diane
Colfer, Robert B. Colfer and David Jordan
(hereinafter collectively referred to as 'appellees").
(FNI) In the complaint, appellant avers that his
termination of employment with appellees was
'intentional, wrongful and without justification' and
'retaliatory in nature and for the purpose and intent
of harming [appellant]'. Appellant's Complaint p.
4. To support his contentions, appellant pleads facts
which suggest that appellees were violating their
contracts with governmental and private parties by
over billing them for work actually performed, and
his job was terminated as a result of his "expressed
willingness to advise proper authorities of
Copyright (c) West Group 2001 No claim to original U,S. Govt. works
622 A.2d 355, 424 Pa.Supcr. 230, Krajsa v. Keypunch, Inc., (Pa.Supcr. 1993)
[appellees') unlawful business practices.'
Appellant's Complaint pp. 3.4. Appellant's
amended complaint, filed March 20, 1989, reiterates
verbatim those contentions[424 Pa.Super. 2341 and
accompanying facts. Appellant's Amended
Complaint pp. 34.
On June 23, 1989, the lower court entered an
order which denied appellees' preliminary objections
to appellant's complaint. The lower court implicitly
held that appellant's complaint had set forth a
wrongful discharge cause of action on public policy
grounds. (FN2) Because of numerous pre-trial
motions and conferences, the case was not called for
trial until January 6, 1992.
At the trial, both parties presented their opening
arguments, and appellant was then called as the first
witness. Appellant began offering evidence
regarding his wrongful discharge when appellees
objected. The jury was recessed, and the trial court,
after argument from both sides, sustained appellees'
objections, and ruled that any testimony pertaining
to the wrongful discharge claim was irrelevant on
the basis that no cause of action existed. The court
below, however, determined that the appellant had a
viable claim for unpaid commissions and allowed the
trial to proceed on that action. Ultimately, the jury
found that a contract existed between the parties, but
that appellant was not entitled to the commissions.
Trial Court Opinion, p. 2.
0357 Appellant then filed post trial motions which
were denied by the lower court. On appeal,
appellant contends that a cause of action for
wrongful discharge existed, and thus the evidence
regarding this claim was improperly excluded at
trial. Appellant further argues that his claim for
unpaid commissions was prejudiced by exclusion of
the evidence of wrongful discharge, and that his
ability to impeach appellee, Colfer, was severely
hampered. Appellant requests a new trial on the
basis that [424 Pa.Super. 235] the lower court acted
without authority by essentially entering an
involuntary nonsuit as to his wrongful discharge
claim.
Contrary to appellant's position, we find that he
lacks a cause of action for wrongful discharge on
both procedural and substantive grounds.
Consequently, the above mentioned arguments,
which arc contingent upon the existence of that
claim, are without merit.
Page 3
Appellant argues that there are two recognized
bases for a claim of wrongful discharge in at-will
employment relationships: First, when die
termination threatens clear mandates of public
policy; Second, when the discharge is based on
specific intent to harm.
[1] With respect to appellant's wrongful discharge
claim on the basis that it violates public policy, we
hold that it fails both procedurally and substantively.
Pennsylvania Rule of Civil Procedure 1019(a)
provides that "[t]hc material facts on which a cause
of action or defense is based shall be stated in a
concise and summary form.' It is not necessary
that the plaintiff identify the specific legal theory
underlying the complaint. Burnside v. Abbott
Laboratories, 351 Pa.Super. 264, 276, 505 A.2d
973, 980 (1985); Weiss v. Equibank, 313 Pa.Super.
446, 453, 460 A.2d 271, 275 (1983). Pa.R.C.P.
1019(a) has been construed to mean that the
complaint must not only apprise the defendant of the
claim being asserted, but it must also summarize the
essential facts to support the claim. Dickerson v.
Brind Truck Leasing, 362 Pa.Super. 341, 524 A.2d
908, 910 (1987); Burnside, 351 Pa.Super. at 276,
505 A.2d at 980; Weiss, 313 Pa.Super. at 451, 460
A.2d at pp. 274-75; Alpha Tau Omega Fraternity
v. University of Pennsylvania, 318 Pa.Super. 293,
298, 464 A.2d 1349, 1352 (1983). We recognize
the proposition that the Rules of Civil Procedure are
to be liberally interpreted. Set, Pa.R.C.P. 126.
"However, liberal construction does not entail total
disregard of those rules concerning pleading."
Duquesne Light Co. v. U.S. Indus. Fabricators, 334
Pa.Supcr. 444, 447, 483 A.2d 534, 536 (1984).
1424 Pa.Super. 2361 [2] A purpose behind the
rules of pleading is to enable parties to ascertain, by
utilizing their own professional discretion, the
claims and defenses that are asserted in the case.
This purpose would be thwarted if courts, rather
than the parties, were burdened with the
responsibility of deciphering the cause of action
from a pleading of facts which obscurely support the
claim in question. Parties ought not be allowed to
delegate their duties under the Rules of Civil
Procedure to our courts.
131 After carefully examining appellant's
complaint, we find that the facts pleaded are
insufficient to support a claim for wrongful
discharge on public policy grounds. In the
Copyright (c) West Group 2001 No claim to original U.S. Govt. works
622 A.2d 355, 424 Pa.Super. 230, Krajsa V. Keypunch, Inc., (Pa.Super. 1993)
complaint, appellant avers that appellees were
engaged in unlawful activity by inflating their bills
to contractual parties, and that appellant's job was
terminated for informing appellees that he would
report their conduct to proper authorities. His
complaint Is structured with those facts immediately
preceding these statements:
The termination of [appellant'a) employment with
[appellees) was intentional, wrongful and without
Y? justification.
The termination of [appellant's] employment was
rl t: retaliatory in nature and for the purpose and intent
of harming [appellant], all as a result of
[appellant's] expressed willingness to advise
' dv proper authorities of [appellees'] unlawful business
practices.
f,p
k?P Appellant's Complaint p. 4.
? In its June 23, 1989, ruling of appellees'
'y r
` y preliminary objections, the lower court determined
h that a dismissal resulting from an attempt to correct
l
k
h
0
'
358 wou
stri
e at t
e
`illegal business activities
d
: heart of a citizen's social right, duty and
responsibility." (citation omitted). It implicitly
v ruled that appellant had set forth facts in his
tr complaint to support a claim for wrongful discharge
1' on public policy grounds. Trial Court's Order of
June 23, 1989 p. 3. Courts have a duty to discover
from the facts alleged in a complaint the cause of
action, if any, stated therein. Burnside, 351
Pa.Super, at 276, 505 A.2d at 980. Even though
we embrace this responsibility, 1424 Pa.Supcr. 2371
for reasons already discussed, we reject the notion
that parties should thereby be relieved of their own
duties under the Rules of Civil Procedure. When
reading words, such as, 'intentional," 'wrongful,'
and 'for the purpose of harming' in conjunction
with the averments, we conclude that appellant has
failed to plead a cause of action for wrongful
discharge on public policy grounds. (FN3) Instead,
we find that this language warrants a claim for
wrongful discharge solely on the basis of a specific
intent to harm. Although appellees may have been
on notice of an assertion of public policy due to the
lower court's pre-trial order, '[appellant] cannot
escape [his duty under Pa.R.C.P. 1019(a) I by a
general averment that the facts are in the possession
of the defendant." Id., 351 Pa.Supcr. at 276, 505
A.2d at 980.
Page 4
141151 Even assuming that appellant satisfied
Pa.R.C.P. 1019(a) with respect to his public policy
argument, it would be to no avail for substantive
reasons, As a general rule, there is no common law
cause of action against an employer for termination
of an at-will employment relationship. Paul v.
Lankenau Hospital, 524 Pa. 90, 93, 569 A.2d 346,
348 (1990); Clay v. Advanced Computer
Applications, Inc., 522 Pa. 86, 88, 559 A.2d 917,
918 (1989); Geary v. United States Steel Corp., 456
Pa. 171. 319 A.2d 174 (1974). An at-will employee
may be terminated for good reason, bad reason, or
no reason at all. Yeller v. Ward Trucking Corp.,
401 Pa.Super. 467, 585 A.2d 1022, 1025 (1991),
appeal denied, 529 Pa. 623, 600 A.2d 539 (1991);
Hershberger v. Jersey Shore Steel Co., 394
Pa.Super. 363, 366, 575 A.2d 944, 946 (1990)
appeal denied. 527 Pa. 601, 589 A.2d 691 (1991).
"Exceptions to this rule have been recognized in
only the most limited of circumstances, where
discharges of at-will employees would threaten clear
mandates of public policy." Clay, 522 Pa. at 88,
559 A.2d at 918. See Paul, 524 Pa. at 93, 569
A.2d at 348; Yeller, 401 Pa.Super. at 471, 585
A.2d at 1025; Hershberger, 394 Pa.Super. at 366,
575 [424 Pa.Super. 2381 A.2d at 946. (FN4)
[6] After scrutinizing the facts before us, we find
that no clear mandate of public policy has been
threatened nor violated. In Cisco v. United Parcel
Services, Inc., 328 Pa.Super. 300, 306, 476 A.2d
1340, 1343 (1984), this Court noted:
The sources of public policy [which may limit the
employer's right of discharge] 0359 include
legislation; administrative rules, regulation, or
decision; and judicial decision. In certain
instances, a professional code of ethics may
contain an expression of public policy ... Absent
legislation, the judiciary must define the cause of
action in case-by-case determinations.
Id. citing Pierce v. Ortho Pharmaceutical Corp.,
84 N.J. 58, 72, 417 A.2d 505, 512 (1980).
Appellant contends that courts can make case-by-
case determinations of whether a public policy Is
implicated when there is no piece of legislation
directly on point. However, our Supreme Court's
decisions in Clay and Paul, preclude us from
undertaking the task of creating and forming public
policy with respect to wrongful 1424 Pa.Super. 239]
discharge on our own initiative. Instead, in order to
find a cause of action for wrongful discharge in at-
Copyright (c) West Group 2001 No claim to original U.S. Govt. works
622 A.2d 355, 424 Pa.Super. 230, Kra]sa v. Keypunch, Inc., (Pa.Supcr. 1993)
will employment relationships, the discharge must
threaten or violate a clear mandate of public policy.
(FN5)
[7][e] Our review of cases regarding this cause of
action reveals that our courts have found a clear
mandate of public policy threatened on only three
occasions. Field v. Philadelphia Electric Co., 388
Pa,Super. 400, 565 A.2d 1170 (1989) (violation of
public policy where discharge was based on
performance of duty to report nuclear safety
violations under federal statute); Hunter v. Port
Authority, 277 Pa.Super. 4, 419 A.2d 631 (1980)
(violation of the Pennsylvania Constitution to deny
public employment to a person on the basis of a
prior conviction for which he has been pardoned);
Reuther v. Fowler & Williams, Inc., 255 Pa.Super.
28, 386 A.2d 119 (1978) (under Pennsylvania law, a
person is statutorily required to serve when called
for jury duty for the purpose of having citizens
available for trial, and thus a discharge for fulfilling
this statutory duty is against public policy). In those
cases where our courts recognized a violation of a
clear mandate of public policy, the plaintiff
demonstrated that a statute or constitution applied to
his case and that the discharge resulted from his duty
to act in accordance with that applicable law. Since
appellant fails to show how any recognized law
applies to his case, the instant case is distinguishable
from those cases. Here, appellant alleges that
appellees' conduct violated a clear mandate of public
policy pursuant to Pennsylvania's Whistle0lower
Law, 43 Pa.Stat.Ann. sec. 1421 ct seq. (1986)
(hereinafter "the Act'). However, after analyzing
the language of the Act, we conclude that it is
inapplicable to the facts in the instant case. The
following sections of the Act are relevant to our
examination:
[424 Pa.Super. 240] Section 1423(x) Persons not
to be discharged.-No employer may discharge,
threaten or otherwise discriminate or retaliate
against an employee regarding the employee's
compensation, terms, conditions, location or
privileges of employment because the employee or
a person acting on behalf of the employee makes a
good faith report or is about to report, verbally or
in writing, to the employer or appropriate
authority an instance of wrongdoing or waste.
Section 1422 Definition
Employee--A person who performs a service for
Page S
wages or other remuneration under a contract of
hire, written or oral, express or implied, for a
public body.
Employer--A person supervising one or more
employees, including the employee in question; a
superior of that supervisor; or an agent of a public
body.
Public body--All of the following:
(1) A State officer, agency, department, division,
bureau, board, commission, council, authority or
other body in the executive branch of State
government.
(2) A county, city, township, regional governing
body, council, school district, special district or
municipal corporation, or a board, department,
commission, council or agency.
(3) Any other body which is created by
Commonwealth or political subdivision authority
or which is funded In any amount by or through
Commonwealth or 0360. political subdivision
authority or a member or employee of that body.
The Act's scope Is limited to employees discharged
from governmental entities or any other body which
Is created or funded by the government. See Cohen
v. Salick Health Care, Inc., 772 F.Supp. 1521
(E.D.Pa.1991) (corporation's discharge of employee
did not come within public policy exception where
corporation was not a public employer) on
reconsideration, 1992 WL 7033 (E.D.Pa., Jan. 6,
1992) (initial order shall remain in full force and
effect). Appellant was not employed by a public
body but by Keypunch, Inc,, a private company.
There is no evidence to suggest that the company
was created or funded by a political body. Although
Keypunch, Inc. performed governmental contracts,
this is not sufficient to [424 Pa.Super. 241] invoke
the application of the Act. We agree with the lower
court which reasoned that the legislative branch
restricted the language of the Act to 'public' rather
than 'private' entities because 'it may well have
been concerned with opening up a flood of litigation
between the millions of employers and their
employees in the private sector.' Trial Court
Opinion, p. 6. We arc not prepared to expand the
coverage of the Act into the private arena.
Accordingly, we hold that appellant's discharge does
not come within the public policy exception to the
Copyright (c) West Group 2001 No claim to original U.S. Govt. works
622 A.2d 355, 424 Pa.Supcr. 230, Krajsa v. Keypunch, Inc., (Pa.Supcr. 1993) Page 6
employment at-will doctrine by virtue of the Act. order, appellant's case was discontinued as to
David Jordan.
191 Appellant also contends that he has a claim for
wrongful discharge based on specific intent to harm.
Although in several cases prior to Clay and Paul this
Court recognized a cause of action under the
specific-intent-to-harm-theory, see Tourville v.
Inter-Ocean Insurance Co., 353 Pa.Super. 53, 508
A.2d 1263 (1986), allocatur denied, 514 Pa. 619,
521 A.2d 933 (1987); Darlington v. General
Electric, 350 Pa.Super. 183, 504 A.2d 306, 318
(1986), Clay and Paul clearly hold that the only
exception to the employment at-will doctrine is
where the discharge violates clear mandates of
public policy. In order to survive a challenge of
failure to state a cause of action, the complaint must
establish the violation of public policy. Yetter, 401
Pa.Super. at 474, 585 A,2d at 1026. Applying the
rule of Clay and progeny to the facts presented
before us, we find that both bases of appellant's
claim for wrongful discharge lack substance. We,
therefore, affirm the lower court's decision which
excluded evidence regarding this claim.
1101 Because appellant's wrongful discharge cause
of action lacks sufficient substance, or, in the
alternative, fails procedurally, his remaining
arguments which are contingent upon that claim are
without merit. Appellant's sole basis for appealing
the issue of unpaid commissions is that he was
prejudiced by the lower court's exclusion of the
evidence pertaining to the claim for wrongful
discharge. The lower court properly ruled in
excluding that evidence, and thus we deny
appellant's request for a new trial on his claim for
unpaid commissions. Similarly, the appellant argues
that the exclusion of the evidence regarding the
claim for wrongful dischargc[424 Pa.Super. 2421
severely hampered his ability to impeach the
credibility of the appellees. Even if appellant had a
cause of action, he would have been precluded from
introducing evidence of specific bad acts to impeach
witnesses. See Butler v. Flo-Ron Vending Co., 383
Pa.Super. 633, 557 A.2d 730, appeal denied, 523
Pa. 646, 567 A.2d 650 (1989).
(FN2.) In that order, the court below found as
follows:
In short, the [appellant[ alleges that his employer
was conducting its business In an illegal manner
and summarily dismissed the Plaintiff when he
threatened to take action in an effort to stop the
above-noted practice. We believe that these
allegations are material and appropriate to the
Plaintiffs cause of action. Certainly a dismissal
resulting from an attempt to correct illegal
business activities would 'strike at the heart of a
citizen's social right, duty and responsibility.'
(Citations omitted)
0360 - (FN3.) Our opinion addresses the substantive
question of a wrongful discharge claim based upon
a violation of public policy. As discussed, this
cause of action is extremely limited.
(FN4.) In his concurring opinion in Clay, Chief
Justice Nix reviewed the holding in Geary v.
United States Steel, 456 Pa, 171, 319 A.2d 174
(1974) and concluded that a cause of action for
wrongful discharge in an at-will employment
relationship does not exist. 522 Pa. at 97, 559
A.2d at 923. The Chief Justice reasoned that 'a
wrongful discharge action would be inimical to the
continued existence of at-will employment.' Id.
In Geary, our Supreme Court stated:
The notion that substantive due process elevates an
employer's privilege of hiring and discharging his
employees to an absolute constitutional right has
long been discredited. But this case does not
require us to define in comprehensive fashion the
perimeters of this privilege, and we decline to do
so. We hold only that where a complaint itself
discloses a plausible and legitimate reason for
terminating an at-will employment relationship and
no clear mandate of public policy is violated
thereby, an employee at will has no right of action
against his employer for wrongful discharge.
1111 Accordingly, we deny appellant's request for
a new trial and affirm the judgment of the court
below. (FN6)
McEWEN, J., concurs in the result.
(FNI.) On August 20, 1990, upon stipulation and
Geary at 184, 319 A.2d at 180 (footnote omitted).
If we were to apply the Chief Justice's
interpretation of Geary to the instant case,
appellant's cause of action for wrongful discharge
on both public policy and intent to harm bases
would clearly fail, Ilowevcr, we are inclined to
Copyright (c) West Group 2001 No claim to original U.S. Govt. works
622 A.2d 355, 424 Pa.Super. 230, Krajsa v. Keypunch, Inc., (Pa.Super. 1993)
follow the majority's opinion in Clay and Paul,
and our decisions in Yetter and Hershberger. In
those cases, our courts ruled that a cause of action
for wrongful discharge in an at-will employment
relationship would be recognized in cases where
the dismissal would threaten clear mandates of
public policy.
(FN5.) Interestingly, the lower court in its order of
June 23, 1989, determined that the appellant had a
viable claim for wrongful discharge on public
policy grounds. But, at trial in January, 1992, it
found that this claim was without substance. The
lower court may have changed its position due to
fact that Clay, Paul, Hershberger, and Yetter had
been decided in the interim.
Page 7
(FN6.) The appellant also contends that the court
below improperly granted an involuntary nonsuit
as to his wrongful discharge claim. However, the
lower court never acted upon a request for a
nonsuit nor did it enter one. Trial Court Gpinion,
p. 3. Even if its decision to preclude the wrongful
discharge claim had the effect of an involuntary
nonsuit, as appellant alleges, we hold that it was
procedurally harmless to appellant's suit. The
lower court found that appellant's claim for
wrongful discharge was without substance and
correctly dismissed this action, irrespective of the
fact that this finding was at the beginning of the
trial.
Copyright (c) West Group 2001 No claim to original U.S. Govt. works
524 A.2d 908, 362 Pa.Super. 341, Dickerson v. Brind Truck Leasing, (Pa.Super. 1987)
•908 524 A.2d 908
362 Pa.Super. 341, 4 UCC Rep.Serv.2d 698
Superior Court of Pennsylvania,
Frederick DICKERSON, Appellant,
V.
BRIND TRUCK LEASING, and Keenan Motors,
Appellees.
1884 Phila. 1985
Argued Sept. 3, 1986.
Filed April 16, 1987.
Employee who was injured when he fell from back
of truck brought personal injury action against
manufacturer of truck and company which leased
truck to employer. The Court of Common Pleas,
Philadelphia County, No. 346 December Term,
1981, Di Dona, J., granted defendants' motion for
summary judgment, and appeal was taken. The
Superior Court, No. 1884 Philadelphia 1985,
Montemuro, J., held that two-year statute of
limitation on injured employee's claims began to run
on date of accident, and not on date he allegedly
discovered that he had crossed one of no-fault
thresholds.
Affirmed.
Cirillo, President Judge, concurred and tiled
opinion.
West Headnotes
[ I ] Pleading (9+48
302 -.--
30211 Declaration, Complaint, Petition, or
Statement
302k48 Statement of Cause of Action in General.
Complaint must notify defendant of plaintiffs
claims, by stating grounds upon which claims rest
and by identifying issues in dispute.
121 Limitation of Actions «95(4.1)
241 ---
24111 Computation of Period of Limitation
24111(F) Ignorance, Mistake, Taut, Fraud, and
Concealment or Discovery of Cause of
Action
24lk95 Ignorance of Cause of Action
24lk95(4) Injuries to the Person
241k95(4.1) In General.
Page 1
(Formerly 24lk95(4), 24lk95(1))
Two-year statute of limitations on injured
employee's action against company which leased
allegedly defective truck to employer began to run
on date he suffered injury in fall from truck, and not
on date he discovered that he had crossed one of no-
fault 'thresholds,' where employee did not plead
cause of action under No-Fault Act, but limited
himself to common-law tort claim and made no
attempt to amend pleadings until company moved
for summary judgment. 42 Pa.C.S.A. § 5524(2);
40 P.S. § 1009.301(a)(5) (Repealed).
13] Automobiles 0251.13
48A ----
48AV Injuries from Operation, or Use of
Highway
48AV(D) Effect of No Fault Statutes
48Ak251.13 Vehicles, Persons or Occurrences
Within Restrictions.
Injuries employee sustained when he fell from
back of allegedly defective truck did not have to
exceed one of no-fault thresholds, in order for
employee to maintain cause of action under No-Fault
Act against manufacturer of truck and company
which had leased truck to his employer. 40 P.S. §
1009.301(a)(2) (Repealed).
[4] Bailment 9
50 ----
50k9 Condition of and Defects in Property, and
Negligence of Bailor.
(Formerly 50k10)
[Sec headnote text below]
141 Products Liability 6=23.1
313A ----
313AI Scope in General
313A1(A) Products in General
313Ak23 Persons Liable
313423.1 In General.
(Formerly 313Ak23)
All suppliers of defective products, including
lesson, are potentially liable for defects in product,
where defect injures ultimate user.
[5] Sales «255
343 ----
343VI Warranties
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524 A.2d 908, 362 Pa.Super. 341, Dickerson v. Brind Truck Leasing, (Pa.Super. 1987)
343k255 Parties.
Manufacturer's warranties to company that
purchased truck were not binding on purchaser, in
action for breach of warranty brought by injured
third-party beneficiary, as warranties were
manufacturer's warranties and not purchaser's.
•909 [362 Pa.Supcr. 342] William C. Kauffman,
Philadelphia, for appellant.
Diane A. Dickler, Philadelphia, for Brind Truck
Leasing, appellee.
Before CIRILLO, President Judge, and
MONTEMURO and KELLY, JJ.
MONTEMURO, Judge:
Appellant Frederick Dickerson challenges a grant
of summary judgment by the Philadelphia Court of
Common Pleas. Because Mr. Dickerson failed to
bring his personal injury claims within the applicable
two-year period of limitations, 42 Pa.C.S.A. § 5524
, we affirm.
[362 Pa.Super, 3431 The parties agree that Mr.
Dickerson suffered injuries after he fell from the
back of a truck while attempting to close the truck's
rear door. The parties also agree that this mishap
occurred on December 3, 1979. Appellee Brind
Truck Leasing does not appear to dispute that it
leased the truck in question to Mr. Dickerson's
employer, Fuller Wholesale Meats, Inc.
Mr. Dickerson commenced this action on
December 8, 1981 by filing a praecipe for a writ of
summons. The summons named Brind Truck
Leasing (Brind) and Keenan Motors as defendants.
Keenan had sold the ill-fated truck to Brind. In his
complaint, Mr. Dickerson alleged that he fell while
'in the act of loading and/or unloading the truck'
and that he did not discover the resulting injuries
until "on or after December 9, 1979." Mr.
Dickerson divided his complaint into two counts,
one 'in nsumpsit" for breach of implied and
express warranties and the other "in trespass" for
negligence and for distribution of an allegedly
"defective" truck. Brind responded with an answer
and new matter and a motion for judgment on the
pleadings. In its motion. Brind contended that the
two-year statute of limitations barred Mr.
Dickerson's action. (FNI) The trial court denied
judgment on the pleadings.
Page 2
Nonetheless, on November 30, 1983, Mr.
Dickerson, now represented by new counsel, sought
to amend his complaint to Include "allegation ...
required to be pleaded, in accordance with the
Pennsylvania No-fault Motor Vehicle Insurance
Act." The trial court denied the petition to amend,
but gave Mr. Dickerson the right to file another
petition that "specifically sets forth the proposed
amendments to the complaint." Mr. Dickerson
neither filed another petition nor challenged the
denial of the first one. On January 30, 1985, Brind
again raised the two-year statute of limitations, [362
Pa.Super. 3441 this time in a motion for summary
judgment. The trial court granted the motion by
order of June 21, 1984, and this timely appeal
followed.
In its opinion, the trial court found that Mr.
Dickerson's cause of action accrued on December 3,
1979, the date of the accident. The court therefore
concluded that the two-year statute of limitations for
personal injury actions had elapsed before Mr.
Dickerson instituted suit on December 8, 1981.
Moreover, because appellee Brind had only leased,
rather than sold its truck to Fuller Wholesale Meats,
Inc., the court refused to apply the Uniform
Commercial Code's four-year period of limitations,
13 Pa.C.S.A. § 2725, to Mr. Dickerson's breach of
warranty claim. On appeal, Mr. Dickerson raises
two arguments against the holding of the trial court.
First, he contends that the now-repealed
Pennsylvania No-fault Motor Vehicle Insurance Act
(FN2) governs his 0910 tort claims and that the
two-year period of limitations therefore did not
begin to run until he knew or should have known
that he had crossed one of the No-fault 'thresholds."
Second, he maintains that Article Two of the
Uniform Commercial Code, 13 Pa.C.S.A. § 2101 el
req., governs his breach of warranty claims and that
the trial coup therefore should have applied the
Code's four-year period of limitations. We will
address these arguments in turn.
Section 301 of the No-fault Act, which was in
effect at the time of the mishap in this case,
abolished ton liability for injuries that arose 'out of
the maintenance or use of a motor vehicle.' 40 P.S.
§ 1009.301(a). This section retained tort liability,
however, in certain enumerated circumstances. In
particular, a tortfeasor remained liable for 'non-
economic" injuries that exceeded one of the four
"thresholds" set forth in Section 301(a)(5), 40 P.S. §
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a
S?by?
t?
524 A.2d 908, 362 Pa.Super. 341, Dickerson v, i3rind Truck Leasing, (Pa.Super. 1987)
1009.301(x)(5). Our supreme court recognized in
Bond v. Gallen, 503 Pa. 286, 469 A.2d 556 (1983),
that a cause of action for such "non-economic"
injuries does not accrue until the victim knows or
reasonably should know that his or her [362
Pa.Super. 3451 injuries meet a No-fault threshold.
The court thus established a variant of the
'discovery rule" for tort actions governed by the
No-fault Act. Generally, the cause of action
accrues, and the period of limitations begins to run,
on the date of the accident. If on the date of the
accident, however, the victim is reasonably unable
to discover that he or she has crossed a No-fault
'threshold," the cause of action will not then accrue.
[11121 Mr. Dickerson argues that the accident in
this case "arose out of the maintenance or use of a
motor vehicle" and that the discovery rule of Bond
v. Gallen therefore applies to his cause of action.
We disagree. Even assuming that Mr. Dickerson
suffered Injuries while maintaining or using a motor
vehicle, he failed to plead a cause of action under
the No-fault Act. This court will not plead the cause
for him. We acknowledge that Pa.R.C.P, 1019(a)
requires the plaintiff to provide only a "concise and
summary" statement of the 'material facts" that
underlie the plaintiffs claims. Nevertheless, the
complaint must notify the defendant of the plaintiffs
claims by stating the grounds upon which those
claims rest and by identifying the issues in dispute.
See Cassell v. Shellenberger, 356 Pa.Super. 101,
514 A.2d 163 (1986); Alpha Tau Omega Fraternity
v. University of Pennsylvania, 318 Pa.Super. 293,
464 A.2d 1349 (1983); Weiss v. Equibank, 313
Pa,Super. 446, 460 A.2d 271 (1983); Smith v.
Brown, 283 Pa.Super. 116, 423 A.2d 743 (1980).
This notice enables the defendant to prepare a
proper and responsive defense. See Cassell v.
Shellenberger, supra; Weiss v. Equibank, supra. It
also promotes the speedy and inexpensive resolution
of disputes. The complaint in this case failed to
notify Brind that Mr. Dickerson was asserting a
claim under the No-fault Act. In fact, Mr.
Dickerson appears to have deliberately avoided
pleading such a claim. He alleged in paragraph 5 of
his complaint that he was 'in the act of loading and/
or unloading the truck' at the time of the accident.
Section 103 of the Act expressly excludes "conduct
in the course of loading or unloading a motor
vehicle' from the definition of [362 Pa.Supcr. 346]
"maintenance or use of a motor vehicle." 40 P.S. §
1009.103. (FN3) Brind therefore could not have
known from reading the complaint that it would
Page 3
have to defend an action governed by No-fault.
(FN4) For the past five 0911 years, Brind has
focused its entire defense against an apparently
ordinary common-law tort claim. The No-fault Act
and Bond v. Gallen (FNS) played no part. We
decline to change the course of the litigation this far
down stream merely because Mr. Dickerson raised
No-fault in his answer to Brind's motion for
summary judgment. Mr. Dickerson could have
attempted to amend his complaint to state a claim
under the No-fault Act, but he failed to do so.
131141 Even if Mr. Dickerson somehow did plead a
cause of action under the Act, he cannot take
advantage of the Bond v. Gallen discovery rule.
Section 301(a)(2) of the Act provides that
(al person in the business of designing,
manufacturing, repairing, servicing, or otherwise
maintaining motor vehicles remains liable for
injury arising out of a defect in such motor vehicle
which is caused or not corrected by an act or
omission In the course of such business, other dean
1362 Pa.Super. 3471 a defect in a motor vehicle
which is operated by such business.
40 P.S. § 1009.301(x)(2). This broad exception to
the abolition of tort liability enables the motor
vehicle accident victim to recover in tort the full
measure of his or her loss against persons who
manufacture, repair, service or otherwise maintain
motor vehicles, regardless of the No-fault monetary
thresholds. See West American Ins. Co, v.
Oberding, 305 Pa.Super. 55, 451 A.2d 239 (1982).
The General Assembly thus sought to deter the
manufacture and distribution of dangerously
defective products by preserving without
qualification the right to bring product liability
actions. See Singer v. Sheppard, 464 Pa. 387, 346
A.2d 897 (1975); West American Ins. Co. v.
Oberding, supra. Because Mr. Dickerson seeks to
hold Brind liable for leasing a defective truck, (FN6
) his claim falls squarely within the category of
actions defined by Section 301(a)(2). His injuries
therefore did not have to exceed one of the No-fault
thresholds before he could file suit. In Bond v.
Gallen, of course, our supreme court addressed only
those cases to which the thresholds applied. The
court sought to avoid the "Catch-22' that would
have arisen if the period of limitations began to run
on tort claims that had not yet ripened under the No-
fault Act. See Bond v. Gallen, supra 503 Pa. at
289, 469 A.2d at 558. In the present case, on the
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524 A.2d 908, 362 Pa.Supcr. 341, Dickerson v. Brind Truck Leasing, (Pa.Super. 1987)
other hand, Mr. Dickerson's product liability claim
arose on December 3, 1979, the day the alleged
defect In the truck caused him to fall.
[51 Mr. Dickerson also argues that the trial court
should have applied the Uniform Commercial
Code's four-year period of limitations, 13
Pa.C.S.A. § 2725(a), (FN7) to his breach of [362
Pa.Super. 348] warranty claim against Brind.
Although his argument on appeal is unclear, Mr.
Dickerson apparently believes that Keenan Motors
made express and implied warranties when it sold
the truck in question to Brind. These warranties,
according to Mr. Dickerson "followed" the truck
"through the stream of commerce" and in the
process somehow bound not only Keenan, the seller,
but also Brind, the buyer. Mr. Dickerson therefore
maintains that he, as third-party beneficiary of the
warranties, can hold Brind liable for breach under
the Commercial Code. We must disagree. 0912
A seller's warranties will not hind the buyer in an
action for breach brought by an injured third parry
beneficiary, Mr. Dickerson thus cannot take
advantage of the Commercial Code's four-year
period of limitations.
We recognize that the concept of 'privily" has no
place in modem sales warranty law and that a
seller's warranties protect a broad class of
beneficiaries other than the buyer. See Williams v.
West Penn Power Co., 502 Pa. 557, 467 A.2d 811
(1983); Salvador v. Atlantic Steel Boiler Co., 457
Pa. 24, 319 A.2d 903 (1974). The warranties that
Keenan gave to Brind, if any, very well could have
traveled "through the stream of commerce" to
protect Mr. Dickerson. If so, then Keenan, not
Brind, must account for the breach. Express and
Implied warranties under the Commercial Code are
of course seller's warranties. A buyer, as such,
does not warrant the quality, merchantibility or
fitness of the goods he or she purchases. To hold
otherwise would offend the plain meaning and
obvious design of the Code's warranty provisions,
13 Pa.C.S.A. §§ 2313 to 2318. (FN8)
1362 Pa.Super. 349] We need not consider whether
Brind made warranties of its own when it leased the
truck to Mr. Dickerson's employer. The trial court
reasoned that Article Two of the Uniform
Commercial Code applies by its own terms to
"sales" only and that a "lease" is not a "sale" within
the meaning of the Code. (FN9) The court
therefore concluded that the Code, with its four-year
Page 4
period of limitations, does not govem Mr.
Dickerson's breach of warranty claim against Brind.
In his brief on appeal, Mr. Dickerson appears to
agree that the lease alone would not support a breach
of warranty claim against Brind under the Code.
His argument in favor of applying the Code rests
entirely upon the express or Implied warranties that
might have arisen when Keenan sold the truck to
Brind. We have already disposed of this reasoning,
and we will not construct an alternative argument
that the appellant has failed to pursue on appeal, see
Giant Markets, Inc, v. Sigma Marketing Systems,
Inc., 313 Pa.Super. 115, 459 A.2d 765 (1983).
For the foregoing reasons, we affirm the order of
the trial court granting summary judgment in favor
of appellee, Brind Truck Leasing.
Order affirmed.
CIRILLO, President Judge, files a concurring
opinion.
CIRILLO, President Judge, concurring:
1 concur in the result reached by the majority, 1
agree with my learned colleague that Mr. Dickerson
may not take advantage of the discovery rule
recognized by the Bond Court. His cause of action
for distribution of a defective product is covered by
40 P.S. § 1009.301(a)(2). The period [362
Pa.Super. 350] of limitations on the plaintiffs claim
began to run when he was injured. The statute was
not tolled until Dickerson reached the no-fault
threshold. Therefore, his claim was barred by the
statute of limitations. Because this issue is
dispositivc of the trespass claim. 1 believe that any
further discussion concerning difficult questions of
statutory interpretation is unwise and unnecessary.
Mr. Dickerson's claim for breach of warranty may
likewise be disposed of in a more restrictive
manner. It is unnecessary for us to determine
whether a "lease' constitutes a "sale" under the
Pennsylvania 0913. version of the Uniform
Commercial Code. On appeal, Dickerson has
argued that he Is a third party beneficiary of the
warranties given by Keenan to Brind. However, as
my colleague aptly notes, any warranty which might
exist binds only Keenan, the seller, not Brind, the
buyer. Because this appeal is from Brind's motion
for summary judgment, any discussion of Keenan's
liability is irrelevant dicta. Therefore, we have no
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524 A.2d 908, 362 Pa.Super. 341, Dickerson v. Brind Truck Leasing, (Pa.Supcr. 1987) Page 5
call to reach the novel issue as to whether a lease is (1981) (en bane ), and the supreme court affirmed
equivalent to a sale In Pennsylvania under the on December 30, 1983, see Bond v. Gallen, 503
warranty provisions of the U.C.C. Pa. 286, 469 A.2d 556 (1983).
Accordingly, I concur in the result.
(FN1.) The relevant statute requires a party to
commence within two years any action 'to recover
damages for injuries to the person ... caused by
the wrongful act or neglect or unlawful violence or
negligence of another.' 42 Pa.C.S.A. § 5524(2).
We cannot determine whether Brind wanted the
court to apply this provision to the breach of
warranty claim as well as the negligence and strict
liability claims.
(FN2.) No-fault Motor Vehicle Insurance Act of
July 19, 1974, P. L. 489, No. 179, repealed by Act
of February 12, 1984, P.L. 26, No. 11, § 8(a),
off. October 1, 1984.
(FN3.) Section 103 of the No-fault Act provides in
part that '(mlaintenancc or use of a motor vehicle
does not Include ... conduct in the course of
loading or unloading a motor vehicle unless the
conduct occurs while occupying, entering Into, or
alighting from it.' 40 P.S. § 1009.103 (emphasis
supplied). Mr. Dickerson now alleges that he was
standing on the back of the truck at the time of the
accident. He therefore argues that he was
'occupying" a motor vehicle within the meaning of
Section 103. This allegation and argument,
however, appear for the first time in Mr.
Dickerson's memorandum of law in opposition to
Brind's motion for summary judgment. In the
complaint, Mr. Dickerson alleged only that he was
loading or unloading the truck at the time of the
accident.
(FN4.) Mr. Dickerson himself admits in his answer
to the motion for summary judgment that his
former counsel 'failed to present plaintiffs No-
fault claim." Although Mr. Dickerson'' present
counsel petitioned to amend the defective
complaint, counsel for unexplained reasons failed
to furnish the information that the court requested
concerning the contents of the proposed
amendments.
(FN5.) We decided Bond on October 16, 1981, see
Bond v. Gallen, 292 Pa.Supcr. 207, 437 A.2d 7
(FN6.) All suppliers of defective products,
including lessors, are potentially liable for defects
in the product when the defect injures the ultimate
user. See Nath v. National Equipment Leasing
Corp., 497 Pa. 126, 439 A.2d 633 (1981);
Francioni v. Gibsonla Truck Corp., 472 Pa. 362,
372 A.2d 736 (1977); Burch v. Sears, Roebuck
and Co., 320 Pa.Super. 444, 467 A.2d 615 (1983)
(FN7.) At the time of Mr. Dickerson's accident,
the original version of the Uniform Commercial
Code was in effect in this Commonwealth, see Act
of April 6, 1953, P.L. 3, No. 1, repealed by Act
of November 1, 1970, P.L. 255, No. 86, 58, off.
January 1, 1980. Although the current version of
the Code contains some minor revisions, the new
limitations provision, 13 Pa.C.S.A. § 2725(x),
mirrors the former provision almost exactly. We
therefore will cite to the current, consolidated
statute version of this provision to avoid confusion.
(FN8.) The codified versions of these provisions
are almost identical to those which were in effect
at the time of Mr. Dickerson's accident, see Act of
April 6, 1953, P.L. 3, No. 1; §§ 2-313 to 2.318,
repealed by Act of November 1, 1979, P.L. 255,
No. 86, § 8, off. January 1, 1980. Again we cite
to the current version to avoid confusion.
(FN9.) The Code defines 'sale' as 'the passing of
title from the seller to the buyer for a price.' 13
Pa.C.S.A. § 2106(a). We note, however, that
some courts have examined the realities of the
transaction to determine whether the purported
'lease" is actually a 'sale.' See, e.g., Barco Auto
Leasing Corp, v. PSI Cosmetics, Inc., 125
Misc.2d 68,478 N.Y.S.2d 505 (N.Y.Civ.Ct.1984)
; Cdattos Systems, Inc. v. National Cash Register
Corp., 479 F.Supp. 738 (D.N.J.1979). Other
courts have determined outright that Article 2 of
the Uniform Commercial Code applies to leases as
such. See, e.g., Xerar Corp. v. Hawkes, 124
N.H. 610, 475 A.2d 7 (1984). See generally
Anno„ 4 A.L.R. 4th 85 (1981).
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370 A.2d 438, 29 Pa.Cmwlth. 171, Com., Dept, of Transp. v. Shipley Humble Oil Co., (Pa.Cmwlth. Page 1
1977)
0438 370 A.2d 438
29 Pa.Cmwlth. 171
COMMONWEALTH of Pennsylvania,
DEPARTMENT OF TRANSPORTATION,
Plaintiff,
V.
SHIPLEY HUMBLE OIL COMPANY, a/k/a
Shipley Humble, Inc. and
the Mason and Dixon Lines, Inc., Defendants,
THE PENNSYLVANIA TURNPIKE
COMMISSION, Additional Defendant.
Commonwealth Court of Pennsylvania.
Argued Dec. 6, 1976.
Decided March 9, 1977.
Department of Transportation brought action
against owners of motor vehicles to recover
damages arising out of accident involving
defendants' vehicles, and defendant filed preliminary
objections In form of motion for more specific
pleading. The Commonwealth Court, No. 1064
C. D. 1976, Kramer, 1., held that complaint failed to
allege cause of action with sufficient specificity to
enable defendant to prepare defense, In absence of
description of conditions upon which defendant's
standard of care was predicated; that where damage
to property resulted from two distinct, successive
accidents, owner of vehicle involved in second
accident could not be held liable for initial damage
to property resulting from first accident, and
Department would be required to amend its
complaint to apportion damages between the two
accidents; and that defendant was entitled to
itemization of alleged damages consisting of
breakdown of cost of repair of each type or class of
property damage, where such itemization would
impose no undue difficulty upon Department and
would not render the complaint prolix.
Preliminary objection sustained without prejudice.
PLEADING C+=1
302 ..--
3021 Form and Allegations in General
302kl Nature and mode of pleading in
general.
(See headnote text below)
1. PLEADING x+18
302 ----
3021 Form and Allegations in General
302k18 Certainty, definiteness, and
particularity.
[See headnote text belowl
1. PLEADING e;=48
302 --..
30211 Declaration, Complaint, Petition, or
Statement
302k48 Statement of cause of action In
general.
Pa.Cmwlth. 1977.
Pleading must achieve purpose of informing court
and adverse party or parties of matters in issue; rule
of civil procedure providing that material fats on
which cause of action or defense is based shall be
stated in concise and summary form is satisfied if
allegations In a pleading contain averments of all
facts that plaintiff will eventually have to prove in
order to recover, and they are sufficiently specific
so as to enable party served to prepare defense
thereto. Pa.R.C.P. No. 1019(a), 42 Pa.C.S.A.
2. PLEADING X63
302 ----
30211 Declaration, Complaint, Petition, or
Statement
302k63 Statutory actions, and following
language of statute.
Pa.Cmwlth. 1977.
Although plaintiff need not specifically plead
statute ostensibly violated by defendant, sufficient
facts must be pleaded to bring case within
appropriate statute.
3. PLEADING (8=18
302 ----
3021 Form and Allegations In General
302k18 Certainty, definiteness, and
particularity.
Pa.Cmwith. 1977.
Complaint, filed by Department of Transportation
whose property was damaged in successive accidents
involving vehicles owned by defendants, failed to
allege cause of action with sufficient specificity to
enable defendant to prepare defense, in absence of
description of conditions upon which defendant's
standard of care was predicated.
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370 A.2d 438, 29 Pa.Cmwlth. 171, Com., Dept. of Transp. v. Shipley Humble Oil Co., (Pa.Cmwith. Page 2
1977)
4. DAMAGES X113
115 --..
115VI Measure of Damages
115V1(B) Injuries to Property
115k113 Injuries to personal property.
Formerly 115k13
[See headnote text below)
4. PLEADING e=244
302 --•-
302V1 Amended and Supplemental Pleadings
and Repleader
302k242 Amendment of Declaration,
Complaint, Petition, or Statement
302k244 Necessity for amendment.
[See headnote text below)
Charles E. Wasilefski, Hurwitz, Klein, Benjamin
& Angino, Harrisburg, for additional defendant.
Joh • T. Kalita, Jr., Asst. Atty. Gen.,[29
Pa.Cn,wlth. 172] Department of Transportation,
Office of Chief Counsel, Harrisburg, for plaintiff.
Clyde W. Mcintryre, Harrisburg, for defendants.
129 Pa.Cmwlth. 171] Before KRAMER,
WILKINSON and ROGERS, 1J.
129 Pa.Cmwith. 172] KRAMER, Judge.
This action was brought by the Department of
Transportation of the Commonwealth of
Pennsylvania against Shipley Humble Oil Company
(Shipley) and the Mason and Dixon Lines, Inc.
(Mason). (FN I)
4. STATES G+212
360 ----
360V1 Actions
3601:212 Judgment and relief.
Pa.Cmwith. 1977.
Where damage to property of Department of
Transportation resulted from two distinct, successive
accidents, owner of vehicle Involved In second
accident could not be held liable for initial damage
to property resulting from first accident;
Department of Transportation would be required to
amend its complaint to apportion damages between
the two accidents.
5. STATES X208
360 ....
360V1 Actions
360k208 Pleading.
Pa.Cmwlth. 1977.
Defendant owner of vehicle involved in accident
which resulted in damage to property owned by
Department of Transportation was entitled to
itemization of alleged damages constituting of
breakdown of cost of repair of each type or class of
property damaged, where such itemization would
impose no undue difficulty upon Department and
would not render the complaint prolix. Pa.R.C.P.
No. 1019(x), 42 Pa.C.S.A.
0439 James W. Evans, Craig A. Stone,
Harrisburg, for Mason & Dixon lines.
The complaint is captioned 'in Trespass' and it
describes two accidents which occurred on March
22, 1973. Allegedly, the first accident occurred
when a negligently operated vehicle owned by
Shipley collided with a highway median barrier,
overran the barrier, and came to rest in the opposite
lane of the highway. The second alleged accident
occurred when a negligently operated vehicle owned
by Mason collided with the disabled Shipley vehicle,
touching off an explosion of volatile substances
carried by both vehicles. The explosion caused
extensive damage to the median barrier, overhead
signs and supports, and the paved road surface and
berm.
The defendant Mason filed preliminary objections,
in the form of a motion for a more specific
pleading, asserting the plaintiffs failure to: (1)
alleged facts with sufficient particularity as to how
the defendant operated is vehicle without due regard
and care for the plaintiffs property as alleged in the
complaint; (2) allege fats or specify which laws of
the Commonwealth were violated as alleged in the
complaint; and (3) aver with sufficient specificity
the alleged damage to the plaintiffs property and to
apportion the damages between each accident.
[29 Pa.Cmwlth. 173] We have reviewed the
pleadings in this case and agree with the defendant
Mason that the complaint does indeed lack the
required specificity.
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370 A.2d 438, 29 Pa.Cmwlth. 171, Com., Dept. of Transp, v. Shipley Humble Oil Co., (Pa.Cmwith. Page 3
1977)
aaJ t^ ,
3?.
Pa.R.C.P. No. 1019(a), 42 Pa.C.S.A., provides:
'The material facts on which a cause of action or
defense is based shall be stated in a concise and
summary form.'
III A pleading must achieve the purpose of
informing the court and the adverse parry or parties
of the matters In issue. Rule 1019(a) is satisfied if
allegations in a pleading (1) contain averments of all
facts the plaintiff will eventually have to prove in
order to recover, and (2) They are sufficiently
specific so as to enable the party served to prepare a
defense thereto. General State Authority v. Sutter
Corp., 24 Pa.Cmwlth. 391, 396, 356 0440 A.2d
377, 381 (1976); Baker v. Rangos, 229 Pa.Supcr.
333, 350, 324 A.2d 498, 505--6 (1974).
Paragraph 9 of the complaint reads as follows:
9. The negligence of the Defendants, acting as
aforesaid, consisted, inter alia:
(a) In operating said motor vehicles without due
regard and care for the property of Plaintiff.
(b) In failing to have said motor vehicles under
proper control so as not to damage the property of
Plaintiff.
(c) In operating said motor vehicles at a high and
excessive, dangerous rate of speed, under the
conditions as aforesaid.
(d) In operating said motor vehicler in violation of
the laws of the Commonwealth of Pennsylvania in
such cases made and provided.
(e) In failing to stop said motor vehicles so as to
avoid striking, colliding and otherwise damaging
Plaintiff's property.
129 Pa.Cmwith. 1741 121 131 Standing by
themselves, subparagraphs (a) and (b) clearly lack
the requisite specificity. Allegation (a) is merely a
legal conclusion unsupported by any allegation of
fact. As to allegation (d), although a parry need not
specifically plead the Act of Assembly ostensibly
violated, sufficient facts must be pleaded to bring
the case within the appropriate statute. Goldberg v.
Friedrich, 279 Pa. 572, 124 A. 186 (1924); Godina
v. Oswald, 206 Pa.Super. 51, 211 A.2d 91 (1956).
No facts are pleaded within subparagraph (d).
Given the organizational form of paragraph 9, only
the most strained reading of it would permit us to
say that the 'conclusions' in subparagraphs (a) and
(d) are based upon the 'facts' alleged in (b), (c) and
(e). Even under such a strained reading, the
specificity required to enable Mason to prepare Its
defenses would be lacking. Under such a reading,
the linchpin of plaintiff's action against both the
defendants would appear to be their failure to
conform the operation of their vehicles to the
standard of care required by the existing
'conditions', referred to in subparagraph (c). Yet
nowhere in the complaint arc such 'conditions'
described. The proper degree of speed, control, and
stopping distance are all largely dependent upon
'conditions', and we hold that the defendant is
entitled to be informed by the complaint of the
nature of the 'conditions' referred to.
With regard to the pleading of damages, two issues
must be resolved: (1) whether damages must be
apportioned between the two incidents described in
the complaint; and (2) whether the defendant is
entitled to an itemization of damages according to
the type of property damaged. (FN2)
[29 Pa.Cmwlth. 175] [4] On the basis of the
allegations in the complaint, we believe it clear that
two distinct accidents occurred, and while defendant
Shipley may eventually be found to be liable for all
damages arising from both accidents, (FN3)
defendant Mason cannot be held liable for the Initial
damage to the median barrier caused by the alleged
collision of the Shipley vehicle with it. Mason's
vehicle has not been alleged to have contributed in
any way to the first accident. Thus, Mason's
potential liability, as disclosed by the pleadings as
they now stand, is limited solely to damages arising
out of the collision of its vehicle with the Shipley
vehicle. See McGuire v. Hamler Coal Mining Co.,
355 Pa. 160, 49 A.2d 396 '441. (1946). We hold
that the plaintiff must amend its complaint to
apportion damages between the two accidents.
Stoops v. Pierce, 3 D&C2d 545 (1955).
151 Finally, we arc of the opinion that Mason is
entitled to an itemization of the alleged damages
consisting of a breakdown of the cost of repair of
each type or class of property damaged. (FN4)
While we agree with the plaintiff that Pa.R.C.P.
No. 1019(() (FN5) applies only to Special damages,
which arc not present in this case, Mason's
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I
370 A.2d 438, 29 Pa.Cmwhh. 171, Com., Dept. of Transp, v. Shipley Humble Oil Co., (Pa.Cmwlth.
1977)
preliminary objections were not confined to Rule
1019(Q. Averments of damage may also be
scrutinized under the specificity requirements of
Rule 1019(x). See General State Authority v. Sutter
Corp., supra, 24 Pa.Cmwlth. at 397--99, 397 n. 7,
356 A.2d at 382, 129 Pa.Cmwlth. 176] 382 n. 7.
See also Cattarius v. Horn, 77 Dauph. 8 (1961);
Rosenblum v. United Natural Gas Co., 14 D&C2d
239 (1958). The Itemization requested by Mason in
this case would impose no undue difficulty upon the
plaintiff and would not render the complaint prolix.
We conclude that the plaintiff must amend its
complaint to provide the requested Itemization.
We sustain the preliminary objections of defendant
Mason. The plaintiff will be given twenty days to
amend Its complaint.
ORDER
AND NOW, this 9th day of March, 1977, it is
hereby ordered that the preliminary objections of the
defendant Mason and Dixon Lines, Inc. are
sustained without prejudice to the plaintiff to file an
amended complaint within twenty days of this
Order.
FNI. The action is within this Court's original
Page 4
jurisdiction under Section 401(x)(2) of the
Appellate Court Jurisdiction Act of 1970, Act of
July 31, 1970, P.L. 673, As amended, 17 P.S. a
211.401(a)(2).
FN2. The Commonwealth did attach to its
complaint a breakdown of claimed damages into
the type of cost incurred in repair, e.g. labor,
materials, etc.
FN3. See Brazel v. Buchanan, 404 Pa. 188,
193--94, 171 A.2d 151, 154--55 (1961);
Jeloszewski v. Sloan, 375 Pa. 360, 365--66, 100
A.2d 480, 482 (1953); Kline v. Moyer and Albert,
325 Pa. 357, 363--64, 191 A. 43, 46 (1937).
FN4. The complaint itself, in paragraph 8, provides
an adequate form of classification of property
damaged for the allocation of costs thereto: (1)
median barrier, (2) overhead signs, (3) supports
thereto, (4) paved road surface, and (5) paved
shoulder or berm.
FNS. Pa.R.C.P.No.1019(f) provides: 'Averments
of time, place and items of special damage shall be
specifically stated.'
r
Copyright (c) West Group 1999 No claim to original U.S. Govt. works
588 A.2d 491, 527 Pa. 59, American Ass'n of Meat Processors v. Casualty Reciprocal Exchange, (Pa. Page l
1991)
•495 (1) if then available, were raised in pre-
trial proceedings or by motion, objection, point for
charge, request for findings of fact or conclusions
of law, offer of proof or other appropriate method
at trial; and
(2) arc specified in the motion. The motion shall
state how the grounds were asserted in pre-trial
proceedings or at trial. Grounds not specified are
deemed waived unless leave is granted upon cause
shown to specify additional grounds.
The Association notes that Pa.R.C.P. 1030, New
Matter, states: 'All affirmative defenses including
but not limited to ... illegality ... shall be pleaded in
a responsive pleading under the heading 'New
Matter'....' Furthermore, defenses not properly
pleaded are waived under Pa.R.C.P. 1032(1), which
provides:
A party waives all defenses and objections which
he does not present either by preliminary
objection, answer or reply, except
(1) that the defense of failure to state a claim
upon which relief can be granted, the defense of
failure to join an indispensable party, and the
objection of failure to state a legal defense to a
claim may also be made by a later pleading, if one
is permitted, or by motion for judgment on the
pleadings or at the trial on the merits....
Illegality is not one of the exceptions of Rule
1032(1), so the Association argues that the defense
was waived by Casually's failure to raise the issue
during the pleadings.
1527 Pa. 67] There are two reasons why we reject
the Association's assertion that the Issue has been
waived. First, although the issue was raised clearly
for the first time in post-trial motions, both the trial
court and the Superior Court considered the issue on
the merits. As set forth following Rule 227.1 in the
Explanatory Comment-1983, the purpose of the rule
is to give the trial court the opportunity to correct its
own error. The fact that the defense was presented
to, and ruled upon, by the trial court removes the
procedure from the realm condemned in Dilliplaine
v. Lehigh Valley Taut Co., 457 Pa. 255, 257, 322
A.2d 114, 116 (1974), where the trial is reduced to
a 'dress rehearsal' in which the 'ill-prepared
advocate' hopes that 'an appellate court will come
to his aid after the fact and afford him relief despite
his failure at trial to object,' thus denying the trial
court any 'chance to hear argument on the issue and
an opportunity to correct error.'
141151 What we consider controlling, however, on
the question of waiver, is that the alleged contract is
Illegal under a statute enacted in aid of significant
public policies Identified by the Pennsylvania
legislature. The Pennsylvania Workmen's
Compensation Act is humanitarian and remedial in
its purpose, which is to provide workmen and their
families a quick and sure means of payment for
work-related injuries without resort to litigation.
See Wagner v. National Indemnity Co., 492 Pa. 154,
422 A.2d 1061 (1980). The Insurance Department
Act of 1921 empowers the Insurance Commissioner
to administer and enforce the Insurance laws in large
part to insure the solvency of Insurance companies,
which, in the workers' compensation field, Is
essential to protect the rights of injured workers.
Unauthorized favorable insurance rates, such as
those allegedly offered by Casualty in this case,
undermine the ability of the Insurance
Commissioner to protect the sources of
compensation benefits which are indispensable to the
welfare of injured workers. In Dippel v. Branoiri,
365 Pa. 264, 267.68, 74 A.2d 112, 114-15 (1950),
this court applied
[527 Pa. 68] the general rule that an agreement
which violates a provision of a statute, or which
cannot be performed without violation of such a
provision, is illegal and void. Where a contract is
found to be against public policy 'it cannot, under
any circumstances, be made the basis of a cause of
action. The law when appealed to will have
nothing to do with It, but will leave the parties just
in the condition in which it finds them.' .
[W]henever it appears that the enforcement of a
contract would violate public policy the court
should refuse to proceed in an action 04%. based
solely upon it, and should dismiss the proceedings
of is own motion.
(Citations omitted). The illegality of a contract is
therefore a question not entirely controlled by the
rules of pleading; whenever it appears that the
enforcement of a contract would violate public
policy, the court should dismiss the proceedings of
Its own motion. Although the Dippel case predates
Rule 227. 1, the principle remains viable: the courts
tO
. r.tp
4: rM,,sit
,fir t ? ?At
Copyright (c) West Group 2001 No claim to original U.S. Govt, works
588 A.2d 491, 527 Pa. 59, American Ass'n of Meat Processors v. Casualty Reciprocal Exchange, (Pa. Page 2
1991)
of this Commonwealth will not be used to enforce
contracts which violate public policy; such contracts
are void and the law will have nothing to do with
them.
(6) The final argument of the Association is that 40
P.S. § 275 applies only to policies which Insure
against "any risk in this Commonwealth." The
membership of the Association is nationwide; most
of its members who purchased insurance under the
Casualty program are employers located in states
other than Pennsylvania. The workers'
compensation insurance at Issue in this case, the
Association therefore argues, Insured against the
risk of injuries to workers in foreign jurisdictions,
not against any risk in this Commonwealth.
We must reject this argument. The Association
Itself Is a Pennsylvania employer and purchased
workers' compensation Insurance under the Casually
program. Other Association members who
participated in the Casualty program were Identified
as being Pennsylvania employers. That some, or
even most, of the participants are businesses located
outside Pennsylvania is immaterial. The alleged [
527 Pa. 69] contract in this case covered risks in this
Commonwealth. The interpretation argued by the
Association--that the statute applies only ifall the
risks insured against are in this Commonwealth—
would totally emasculate the insurance law and the
power of the Insurance Commissioner to enforce
that law. Every standard automobile insurance
policy issued in Pennsylvania insures against risks
outside the Commonwealth, as coverage does not
cease when the automobile crosses the border into a
contiguous state, yet such automobile politics
Indisputably must comply with Pennsylvania
Insurance laws and regulations. The Association's
theory would exempt all of these policies from the
statute because some of the risks arc not "in the
Commonwealth."
This is absurd. Like an automobile policy, a
workers' compensation insurance policy covers risks
both within and outside the state where the employer
Is located, See 77 P.S. §§ 1, 411.2. If every risk
covered by a policy had to be in Pennsylvania, then
no insurance policy would be governed by the
prohibition in the statute, and the statute would be
rendered a nullity. The legislature did not Intend
such a result. I Pa.C.S. § 1922(1) and (2).
The alleged agreement between Casualty and the
Association encompassed risks within the
Commonwealth; it was allegedly made within the
Commonwealth; one of the parties to the alleged
agreement was a Pennsylvania employer; the
alleged agreement violates the public policy of the
Commonwealth. Such an agreement is void ab
inirio and unenforceable. The cause of action stated
by the Association does not, therefore, entitle it to
relief, and the judgment of the Superior Court must
be reversed.
Judgment reversed.
NIX, C.1., and CAPPY, 1., did not participate in
the consideration or decision of this case.
ZAPPALA, J., concurs in the result.
LARSEN, J., files a dissenting opinion.
[527 Pa. 701 LARSEN, Justice, dissenting.
1 dissent, and in support thereof, adopt the
Superior Court opinion in this case authored by The
Honorable Harry M. Montgomery, American
Association of Meat Processors v. Casualty
Reciprocal Exchange, 388 Pa.Super. 179, 565 A.2d
173 (1989).
Copyright (c) West Group 2001 No claim to original U.S. Govt. works
ROBERT KREPICH, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. CIVIL ACTION - LAW
WANDA'S HOLIDAY .
INN, MECHANICSBURG :
GF INVESTORS, and GF :
DEVELOPMENT, INC., :
Defendants NO. 99-6213 CIVIL TERM
ORDER OF COURT
AND NOW, this 2"d day of August, 2001, upon consideration of Plaintiffs
Motion in Limine, a Rule is hereby issued upon Defendants to show cause why the relief
requested should not he granted.
RULE RETURNABLE within 10 days of service.
BY THE COURT,
Ron Turo, Esq.
28 South Pitt Street
Carlisle, PA 17013
Attorney for Plaintiff
John A. Abom, Esq.
8 South Hanover Street
Suite 204
Carlisle, PA 17013
Dennis P. Talty, Esq.
101 West Main Street
Second Floor
Moorestown, NJ 08057
20W
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de`'p , %
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MK''1l c?.?,?3a
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1. VI1? ?
:rc
ROBERT KREPICH,
Plaintiff
V.
WANDA'S HOLIDAY INN,
MECHANICSBURG GF INVESTORS,
and GF DEVELOPMENT, INC.,
Defendants
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
NO. ?1-6213 CIVIL TERM
PLAINTIFF'S MOTION IN LIMINE
AND NOW COMES the Plaintiff, Robert Krepich, by and through his attorney,
Ron Turo, Esquire, and files the following Motion in Limine:
Plaintiff, Robert Krepich, brought the aforementioned action against
Defendants requesting payments of commissions to him from his contract with
Defendants over a course of two (2) years.
2. Defendants filed an Answer to Plaintiffs original Complaint and a New
Matter within which they sought to raise defenses of illegality, unenforceability, and a
contract void against public policy.
3. At no time did the Defendants Identify to the Plaintiff any specific section
of law that they determined was either illegal or void nor did they, at any time in the
pleadings, cite a statute or even a specific area of the law that they indicated was
violated by the arrangement between the Plaintiff and Defendants.
4. For the first time, upon receipt of Pre-Trial Memo, Plaintiff was formally
advised of an allegation by Defendants that the contract between himself and
Defendants was void under the Employment Agency Law. This law had never
previously been cited or mentioned to Plaintiff either formally through the pleadings or
informally through counsel.
5. At the time of the Pre-Trial Conference Defendants again attempted to
assert that the Employment Agency Law would void the contract between the parties
and thus sought the Court's allowance for the entry into evidence of this information.
This was accomplished over vehement objection of Plaintiff based on a clear violation of
The Pennsylvania Rules of Civil Procedure.
6. In Commonwealth of Pennsylvania, Department of Transportation v.
Shipley Humble Oil Company, 370 A.2d 438 (Pa. Commonwealth 1977) the Court
reviewed similar pleadings filed in a case including a pleading "in operating said motor
vehicles in violation of the laws of the Commonwealth of Pennsylvania in such cases
made and provided". The Court, in reviewing the failure of the pleading to conform to
Rules of Civil Procedure, specifically Pa. R.C.P. 1019(a) stated "although a party need
not specifically plead the act of assembly ostensibly violated, sufficient facts must be
pleaded to bring the case within the appropriate statute" Id
7. The Court's decision in Shipley Humble, relates directly to the Instant
matter where Defendants attempted to raise a defense that provided no particular facts
or even a hint of the supposed statute alleged to be violated. Like the Shipley Humble
case, this Court should now refuse to allow Defendants this excessively late opportunity
in such a civil action.
8. In Dickerson v. Brind Truck Leasing, 524 A 2d 908 (Pa. Super 1985)
Judge Montemuro discussed the ambush-like scenario a party would be faced with if
one party is allowed to vaguely plead a cause of action or defense. "We acknowledge
that Pa.R.C.P. 1019(a) requires the Plaintiff to provide only a "concise and summary"
statement of the "material facts" to underlie Plaintiffs claims. Nevertheless the
Complaint must notify the Defendant of the Plaintiffs claims by stating the grounds upon
which those claims rest and by Identifying the Issues in dispute....this notice enables the
Defendant to prepare the proper and responsive defense ...it also promotes the speedy
and inexpensive resolution of disputes. The Complaint in this case failed to notified
Brind that Mr. Dickerson was asserting a claim under the No-Fault Act. In fact, Mr.
Dickerson appears to deliberately avoided pleading such claim ...Brind therefore could
not have known from reading the Complaint that it would have to defend an action
governed by no-fault. For the past five (5) years, Brind has focused its entire defense
against an apparently ordinary common-law tort claim. The No-Fault Act in Bond v.
Galan played no part. We decline to change the course of litigation this far down
stream merely because Mr. Dickerson raised no-fault in his Answer to Brind's Motion for
Summary Judgment". Id at 910, 911. As in the instant case, the defenses raised by
Defendants did not lead the Plaintiff to any understanding or hint that allegations under
the Employment Agency Law would be litigated. Rather Plaintiff has consistently
proceeded with his claim that the Defendants violated a common law contract matter
solely at the heart of the case.
9. Finally in Kraisa v. Keypunch, Inc., 622 A 2d 355 (Pa. Super 1992) Judge
Popovich writing for the Superior Court discussed situations where allegations are
raised in pleadings concerning the violation of public policy. "Pa.R.C.P. 1019(a) has
been construed to mean that the Complaint must not only apprise the Defendant of the
claim being asserted, but it must also summarize the essential facts to support the
claim .... We recognize the proposition that the Rules of Civil Procedure are to be
liberally interpreted, however, liberal construction does not entail total disregard of those
Rules concerning pleading. A purpose behind the Rules of Pleading is to enable parties
to ascertain, by utilizing their own professional discretion, the claims and defenses that
are asserted in this case. This purpose would be thwarted if Courts, rather than the
parties, were burdened with the responsibility of deciphering the cause of action from a
pleading of facts which obscurely support the claim in question. Parties ought not to be
allowed to delegate their duties under the Rules of Civil Procedures to our Courts."
Id at 357. The Defendants have not pled any facts which would reasonably point the
Plaintiff to assume a supposed violation of the Employment Agency Law. A broad,
general and deliberately evasive pleading does not meet the requirements of 1019(a)
nor does it fairly and appropriately provide the other party with sufficient facts in order to
present a defense. In fact, as mentioned above, the Plaintiff never even knew about
this defense until the time of the Pre-Trial Memo. The cases cited above stand clearly
for the proposition that Courts will not allow such litigation by ambush at such a late
date in litigation where the cause had been scheduled for trial and the parties were
prepared to proceed on the issues enumerated in the Plaintiffs Complaint.
WHEREFORE, for all the above reasons, the Plaintiff, Robert Krepich, by and
through his attorney, Ron Turo, Esquire, respectfully request this Court to deny
Defendants request to Introduce any evidence of Plaintiffs alleged violation of the
Employment Agency Law or any other state statute at the time of trial
Date
k R spectfully Submitted
UR0 LAW OFF 8
Ron Turo, Esquire
28 South Pitt Street
Carlisle, PA 17013
(717) 245.9688
Attorney for Plaintiff
t ?•
a
i?
r
zest
CERTIFICATE OF SERVICE
I hereby certify that I served a true and correct copy of the Plaintiffs Motion In
Limine upon John A. Abom, Esquire, and Dennis P. Talty, Esquire, by depositing same
in th United States Mail, first class, postage pre-paid on the day of
' / , 2001, from Carlisle, Pennsylvania, addressed as follows:
John A. Abom, Esquire
Abom & Kutulakis
8 South Hanover Street
Suite 204
Carlisle, PA 17013
Dennis P. Talty, Esquire
101 West Main Street
Second Floor
Moorestown, NJ 08057
LAW OFFICES
Ron Turo, EsquIr6-
28 South Pitt Street
Carlisle, PA 17013
(717) 245-9688
Attorney for Plaintiff
R
(
J
c?
ROBERT KREPICH,
Plaintiff
V.
WANDA'S HOLIDAY INN,
MECHANICSBURG GP
INVES'T'ORS, AND GF
DEVELOPMENT, INC.
To the Honorable J. Wesley Oler.
IN THl COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No. 99-6213 CIVIL TEILM
DEFENDANTS' REPLY TO PLAINTIFF'S MOTION IN LIMINE
And Now, come the Defendants, by and through their attorney, John A.
Abom, Esquire of Abom & Kutulakis, LLP, who, in response to this Court's Rule to
Show Cause entered on August 2, 2001, request that the Plaintiffs Motion in Limine
be denied and in support thereof, argue the following.
Plaintiffs Motion in Limine seeks to preclude the introduction of any evidence
of the Plaintiffs alleged violation of the Employment Agency Taw or any other state
statute at the time of trial. Plaintiff argues that because the Defendants' New Matter
did not set forth the specific facts supporting the defense of illegality, the defense
itself is waived.
The Defendants have not waived any of the defenses raised within their New
Matter. Paragraph Light (8) of the Defendants' New Matter raised the defense that
the alleged contracts in dispute in this matter are unenforceable and void due to their
illegality. Paragraph Nine (9) of the Defendants' New Matter raised the defense that
the alleged contracts in dispute in this matter are unenforceable and void as against
public policy.
This court should deny the Plaintiffs requested relief because (a) the defense of
illegality cannot be waived; (b) the Plaintiff failed to state his objections to the alleged
insufficient specificity of the Defendants' New Matter and, thus, his objections are
waived pursuant to Pa.R.C.P. 1032(a); and (c) such evidence is relevant and may be
presented to rebut the plaintiffs case-in-chief to demonstrate that he failed to state a
claim for which relief can be granted.
1. The defense of illegality is not waived by a failure to plead it and,
therefore, Defendants' New Matter cannot be considered to be lacking
in specificity.
Under Pennsylvania law the defense of illegality is not waived by failure to
plead it. Development Finance Corp v Alpha Housing & Flealth Care inc. 54 P.3d
156, 163 (3'' Cir. 1995) (citing to American Ass'n of Aleat Processors Y. Casuality
Reciprocal Inc)i., 588 A.2d 491, 495, 527 Pa. 59, 68 (1991). See also Norristown
. • i • It
Ford Co. v. Metropolitan Auto Dealer., 132 A.2d 725, 183 Pa.Super. 645 (1957)(Evcn
though not pleaded, question of illegality of transaction and its effect may be raised at
the trial and also on appeal) and Shafer v. A.I.T.S.. Inc. 428 A.2 152, 285 Pa.Super.
490 (1981).
The identical issue raised in this matter was addressed by the Pennsylvania
Supreme Court in American Ass'n of bleat Processors v. Casuality Reciprocal Exch.,
588 AN 491, 527 Pa. 59 (1991). In that case, the defendant raised for the first time
on appeal the defense that a contract was illegal. The Supreme Court considered the
very rules cited and arguments raised by the Plaintiff in this matter and held that the
illegality of the contract was a defense that cannot be waived. The Supreme Court
wrote: "The illegality of the contract is therefore a question not entirely controlled by
the rules of pleading; whenever it appears that the enforcement of a contract would
violate public policy, the court should dismiss the proceedings of its own motion."
American Ass'n of Meat Pmcessors v Casuaiity Reciprocal Exch., 588 AN 491, 496,
527 Pa. 59, 68 (1991).
An illegal contract can never provide the basis for a cause of action and this
Court should not be used to enforce a contract that violates public policy. Since the
defense of illegntlity may he employed at trial, even in a circumstance where it was
t . .
never raised in the underlying pleadings, the argument that it was not raised with
sufficient specificity also must fail.
2. Any objections to a procedural defect concerning an alleged
insufficiency of the Defendants' pleadings were waived by the Plaintiffs
failure to timely file preliminary objections to the Defendants' New
Matter.
The Plaintiff's Motion in Litnine is, in essence, a preliminary objection to the
lack of specificity of die Defendants' New Matter in disguise. Plaintiff does not argue
that the Defendants' failed to raise their defense, only that they failed to state the facts
underlying that defense with proper specificity.
Pa.R.C.P. 1028(a)(3) (Preliminary Objections) permits preliminary objections to
be filed by any party to any pleading on the grounds that there is insufficient
specificity in a pleading. Rule 1028 also requires that all preliminary objections be
raised at one time. Instead of filing preliminary objections, the Plaintiff answered the
Defendants' New Matter.
Assuming, arguendo, that the Defendants' New Matter is not sufficiently
specific, the Plaintiff has waived his right to assert such an objection by failing to file
an appropriate preliminary objection. Pa.R.C.P. 1032(a) sets forth that a party waives
all defenses and o ' ions which are not presented by preliminary objections, answer
.,
or reply, with the exception of certain defenses. Pa.R.C.P. 1032(a) (emphasis added).
In this case, the proper method by which the Plaintiff should have raised any
objection to the lack of specificity was by filing a preliminary objection to the
Defendants' New Matter. Since Plaintiff did not object to the lack of specificity of
the Defendants' New Matter, this Court should not allow him to claim "ambush" on
the part of the Defendants because of his own waiver of his opportunity to force the
Defendants to specify the facts underlying their defense of illegality.
3. Evidence of the Plaintiff's licensure, or lack thereof, is relevant to the
determination of whether a contract ever existed and whether the
Plaintiff has stated a claim for which relief can he granted.
Defendants contend that Plaintiff was operating as an unlicensed employment
agent and that his business was a theatrical employment agency, as those terms arc
defined in 43 P.S. §536(5)and(13).
In that the Plaintiff was operating unlawfully, a contract entitling him to a fee is
unenforceable. Sec Watrcl v. Commonwealth. Department of Rducation, 488 A2.d
378, (Pa. Cmwlth. 1985)(Agrecment which violates statutory provision or which
cannot be effectively performed without violating statute, is illegal, unenforceable and
void ab initio) appeal granted 497 A2.d 1330, affirmed 518 A.2d 1158 (Pa. 1986). See
also, Brown v. Kleinfelter, 406 A.2d 560, 267 Pa.Super. 144 (1979)(A real estate agent
04
i
,z.
t,
must aver that lie had a license to work as a real estate agent in order to collect the
commission to which he claimed to he entitled)
Black's Law Dictionary defines "void ab inito" as follows: "A contract is null
and void from the beginning if it seriously offends law or public policy in contrast to a
contract which is merely voidable at the election of one of the parties to the contract"
Black Law Dictionary defines "void" as, "Null; ineffectual; nugatory; having no legal
force or binding effect; unable, in law, to support the purpose for which it was
intended."
In this case, the Plaintiff must establish that there was a valid and binding
contract as part of his case-in-chief. The introduction of evidence that the Plaintiff
was illegally operating as an unlicensed employment agent would rebut the claim that
a contract existed and thus establish that the Plaintiff failed to state a claim for which
relief may be granted. A defense asserting that the plaintiff failed to state a claim for
which relief can be granted is not one that is waived due to a failure to raise it within
the pleadings. Pa.R.C.P. 1032.
WHEREFORE, the Defendants respectfully request that for all of the
foregoing reasons, the plaintiffs Motion in Limine be denied.
Respectfully submitted,
ABOM & KUMLAM
Date: August 13, 2001
8 South Hanover Street
Carlisle, PA 17013
(717) 249-0900
ROBERT KREPICH,
Plaintiff
V.
WANDA'S HOLIDAY INN,
MECHANICSBURG GF
INVESTORS, AND GF
DEVELOPMENT, INC.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No. 99-6213 CIVIL TERIvI
CIVIL ACTION - LAW
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving the foregoing document upon
the person listed below by personally delivering a copy of said document to Ron
Turo, Esquire at the following location
Turo Law Offices
28 South Pitt Street
Carlisle, PA 17013
Date. y O
Abom, Esquire
v ID No. 77961
Abom & Kutulakis, L.L.P.
8 South Hanover Street
Suite 204
Carlisle, PA 17013
(717) 249-0900
588 A.2d 491, 527 Pa. 59, American Assn of Meat Processors v. Casualty Reciprocal Exchange, (Pa. 1991) Page 1
•491 588 A.2d 491 2171X Sales, Marketing and Advertising Practices
217k 1567 Rebates or Other Improper Inducements.
527 Pa. 59
Supreme Court of Pennsylvania.
AMERICAN ASSOCIATION OF MEAT
PROCESSORS, Appellee,
V.
CASUALTY RECIPROCAL EXCHANGE,
Appellant.
No. 143 E.D. Appeal 1990.
Argued Jan 18,199 1.
Decided March 21, 1991.
Association of businesses brought action against
workers' compensation insurer seeking allegedly
agreed rebate for its sponsorship of insurer's program.
The Court of Common Pleas, Lancaster County, Civil
Division, at No. 3449 of 1985, Michael J. Perezous, J.,
entered judgment for association, and insurer appealed
The Superior Court, 388 Pa.Supcr. 179,565 A.2d 173,
affirmed, and insurer appealed. The Supreme Court,
No. 143 E.D. Appeal Docket 1990, Flaherty, J., held
that: (1) alleged agreement violated statute prohibiting
rebate of premiums not provided for in policy, even
though rebates went indirectly from insurer to insureds
through the association as a conduit; (2) allegation of
illegality of contract was not waived; and (3)
applicability of the statute did not require that all the
risks insured against be within Pennsylvania.
(Formerly 217k185)
Statute prohibits any agreements between insurer and
anyone else which promise rebates, direct or indirect,
to insured parties, if the rebates are not set forth in the
policy, statutory prohibition is not limited to contracts
directly between the insurer and the insured. 40 P.S. §
275.
[2J Workers' Compensation e=1063
413 ----
413X1 Insurance and Public Funds
413XI(D) Private Insurance
4130063 Premiums and Rates.
Statute precluding promise of rebate of premium not
specified in policy was violated by alleged oral
agreement in which association of businesses was to
receive rebate of workers' compensation insurance
premiums on behalf of its members and was to pass on
the payments to its members, even though the
payments to the insureds were indirocL 40 P.S. § 275.
[3]Appcal and Error t8= 179(1)
30 ----
30V Presentation and Reservation in Lower Court of
Grounds of Review
30V(A) Issues and Questions in Lower Court
30k179 Sufficiency of Presentation of Questions
30kl79(1) In General.
Reversed
Zappala, J., concurred in the result.
Larsen, J., filed a dissenting opinion.
West Hcadnotcs
[I]Insurance X2010(1)
217 ---
217XIV Premiums
2177JV(D) Amounts Payable
217k2006 Adjustment
217k2010 Reduction
217k20IO(1) In General.
(Formerly 217k185)
[See headnote text below]
13 JAppeal and Error e =1082(l)
30 ----
30XVI Review
30XVI(L) Decisions of Intermediate Courts
30k1081 Questions Considered
30k1082 Scope of Inquiry in General
30k 1082(1) In General.
Assertion of illegality of alleged insurance premium
rebate contract was not waived even though it was
raised clearly for the first time in posttrial motions,
where both trial court and Superior Court had
considered issue on the merits. Rules Civ.Proc., Rules
227.1(b), 1030, 1032(1), 42 Pa.C.S.A.
[4] Workers' Compensation c&:= 1063
413 ----
[Sec headnote text below] 413XI Insurance and Public Funds
413XI(D) Private Insurance
[I]Insurance (&= 1567 413k1063 Premiums and Rates.
217 ---- Illegality of alleged contract for rebate of workers'
Copyright (c) West Group 2001 No claim to original U.S. Govt. Works
588 A.2d 491, 527 Pa. 59, American Assn of Meat Processors v. Casualty Reciprocal Exchange, (Pa. 1991) Page 2
compensation insurance premiums was not waived by
insurefs failure to raise issue during pleadings, as the
courts will not be used to enforce a contract which
violates public policy. 40 P.S. § 275; Rules Civ.Proc.,
Rules 227.1(b), 1030, 1032(1), 42 Pa.C.S.A.
Before LARSEN, FLAHERTY, McDERMOTT,
ZAPPALA and PAPADAKOS, JJ.
OPINION OF THE COURT
[5]Pretrial Procedure 4=674
307A ---
307ARI Dismissal
307AI11(B) Involuntary Dismissal
307AEI(B)6 Proceedings and Effect
307Ak674 Dismissal on Court's Own Motion;
Automatic Dismissal.
Whenever it appears that enforcement of contract
would violate public policy, court should dismiss the
proceedings of its own motion.
[6]htsurance e=2010(1)
217 »--
217XIV Premiums
217XIV(D) Amounts Payable
217k2006 Adjustment
217k2010 Reduction
217k2010(1) In General.
(Formerly 217kl85)
[Sec headnote text below]
[6]lnsurance 4=1567
217---
2171X Sales, Marketing and Advertising Practices
217kl567 Rebates or Other Improper Inducements.
(Formerly 217kl85)
Statute precluding rebate of premiums not specified
in policy is applicable to policies which insure against
risks within Pennsylvania, even though not all of the
risks insured against are within Pennsylvania. 40 P.S.
§ 275.
•492 [527 Pa. 611 Robert P. Morgan, Edwin L.
Kleu, William AK Titehnan, Manor S. Lieber, Foster
S. Goldman, Jr., Pittsburgh, for appellant.
Thomas M. Kittredge, Amy Donohue•Babiak,
Philadelphia, for amicus--Erie W. Group, Penna.
Mfrs. Assn Group of Ins. Companies, and Not. Assn
of Independent Insurers.
Kenneth Allen, Victoria A. Raider, Linda J. Wells,
Harrisburg, for amicus-Pemtsyivania Ins. Dept.
Linus E. Fenicle, Harrisburg, for appellee.
FLAHERTY, Justice.
Appellant, Casualty Reciprocal Exchange, appeals
from the order of the Superior Court which affirmed
the judgment entered in favor of the American
Association of Meat Processors, appellee, on an
alleged oral contract obligating appellant to provide
rebates to employer members of appellee association
who purchased worker' compensation insurance from
appellant. 388 Pa.Supcr. 179, 565 A2d 173. The
issue is whether the alleged contract is illegal and
therefore unenforceable.
(527 Pa. 62] Appellant, Casualty Reciprocal
Exchange ('Casualty' or "the insurer% is an
interinsurance group. headquartered in Missouri, which
provides insurance, including workers' compensation
coverage. Appellee, American Association of Meat
Processors ("the Association% is a nationwide trade
association with an office in Elizabethtown,
Pennsylvania, whose members include •493 small
meat processors and other businesses related to the
meat processing industry.
In 1967, Casualty solicited the Association to endorse
a workers' compensation insurance program offered by
Casualty to members of the Association. The
Association end.mcd the Casualty program each year
from April I, 1968 to March 31, 1984. During that
time, Casualty provided workers' compensation
insurance to those members of the Association who
purchased such coverage. The Association also
purchased compensation insurance for its own
employees through the Casualty program. Beginning
April 1, 1984, the Association discontinued its
endorsement of Casualty's program and endorsed a
different program.
At the end of each insurance year through March 31,
1983, Casualty paid a rebate to the Association, based
on a percentage of the premiums paid to Casualty
under the workers' compensation insurance program
endorsed by the Association. The paymenu were made
to the Association under the terms of assignments made
by the insured members of the Association, authorizing
Casualty to pay the rebates to the Association, which,
in turn, passed on the rebates to the insured members
on a pro rata basis. When the Association-crrdorsed
Copyright (c) West Group 2001 No claim to original U.S. Govt. works
588 A.2d 491, 527 Pa. 59, American Assn of Meat Processors v. Casualty Reciprocal Exchange, (Pa. 1991) Page 3
program ended on March 31, 1984, Casualty failed to
pay a dividend or rebate to the Association for the final
year of the program.
The Association brought a civil action in federal
court, alleging that the insurer breached an oral
agreement to pay the Association, for the insured
members, a rebate of at least ten percent of the
premiums paid by the participating members. The caw
was transferred to state court pursuant to 42 Pa.C.S. §
5103. The case was tried without a jury, and the court
entered judgment for the Association in [527 Pa. 63]
the amount of S81,195.90, one-tenth of the premiums
paid during the final year of the program, together with
prejudgment interest. The insurer appealed to the
Superior Court, which affumcd the trial court by a
divided panel. American Amoclatlon of Akat
Processors v. Casualty Reciprocal Exchange, 388
Pa.Supcr. 179, 565 A.2d 173 (1989).
We must detemiine whether the insurer's alleged oral
agreement to return a percentage of the premiums to
the Association for transmittal to the insured members
violates Pennsylvania law. The insurer claims that
such an agreement would violate the Insurance
Department Act of 1921, 40 P.S. § 275, as well as
other statutory provisions. 40 P.S. § 275 states:
§ 275. Rebr'es and inducements prohibited
No insurance agent, solicitor, or broker, personally
or by any other party, shall offer, promise, allow,
give, set o0; or pay, directly or indirectly, any rebate
of, or part of, the premium payable on the policy or
on any policy or agent's commis;on thereon, or
eantings, profit, dividends, or other benefit founded,
arising, accruing or to accrue thercon or therefrom, or
any special advantage in date of policy or age of
issue, or any paid employment or contract for services
of any kind, or any other valuable consideration or
inducement, to or for insurance on any risk in this
Commonwealth, now or hereafter to be written,
which is not specified in the policy contract of
insurance; nor shall any such agent, solicitor, or
broker, personally or otherwise, offer, promise, give,
option, sell, or purchase any stocks, bonds, securities,
or property, or any dividends or profits accruing or to
accrue thereon, or other thing of value whatsoever, as
inducement to insurance or in connection therewith.
Nothing in this section shall be construed to prevent
the taking of a bona fide obligation, with legal
interest, in payment of any premium.
Suitably elided for this case, the statute says: 'No
insurance agent shall promise or pay, directly or
indirectly, any 1527 Pa. 64] rebate of, or part of, the
premium payable on the policy for insurance on any
risk in this Commonwealth, which is not specified in
the policy.' The statute seems to prohibit precisely
what Casualty allegedly promised to do in this case.
[1][2] •494 The Superior Court held that the oral
contract did not violate the above statute. Its entire
discussion of the issue was:
The Appellee was not an insurance agent, solicitor, or
broker in this arrangement, nor was it an insured,
within the meaning of the Pennsylvania insurance
laws. It was not a party to the insurance policy or
contract which existed in each case between one of its
members and the Appellant.
388 Pa.Super. at 184, 565 A.2d at 175. The
rationale is erroneous on both the facts and the law. In
fact, the Association was an insured, and was a parry to
one of the insurance policies issued by the insurer.
Even if that were not the case, the Superior Court has
misconstrued the statute, which nowhere requires that it
prohibited contract must exist between the insurer and
the insured. Instead, the statute prohibits any
agreements, between the instua and anyone else,
which promise rebates, direct or indirect, to insured
parties, if the rebates are not set forth in the policy.
The Superior Court cited McDowell v. Good
Chevrolet-Caddlac, Inc.. 397 Pa. 237, 154 A.2d 497
(1959), for the proposition that the statute in question
basically prohibits the placement of insurance at a
favorable rate regardless of how the favora rlc rate is
obtained, if such a rate is not available to all other
members of the same class. This is a correct statement
of the law, but it condemns the alleged contract in this
caw rather than excusing it.
In AlcDowe/C a car dealer was licersod to sell
vehicles on an installment basis, and was also licensed
as an agent to sell insurance for the vehicles. The
dealer arranged financing for the sales w that the buyer
was obligated to pay the finance company. The dealer
obtained insurance, at standand[527 Pa. 651 rates, for
some of the vehicles, naming the finance company and
the buyer as insureds. As an insurance agent, the
dealer received the usual commissions paid by the
insurance company to its agents. The plaintills,
competing insurance agents, charged that because the
dealer received a commission on the sale of the
insurance, and because it arguably retained a financial
interest in the vehicles, the dealer had obtained
Copyright (c) West Group 2001 No claim to original U.S. Govt. works
588 A.2d 491, 527 Pa. 59, American Assn of Mcat Processors v. Casualty Reciprocal Exchange, (Pa. 1991) Page 4
insurance at a cost below that paid by other purchasers
of insurance, in violation of the statute. This court
rejected the plaintiffs' theory, holding that the dealer
did not retain any insurable interest in any vehicles, did
not pay for any insurance, and did not receive any
insurance.
The relationship among the insurance company, the
car dealer, and the insured buym in McDowell differs
greatly from the relationship among Casualty, the
Association, and the Association's insured members in
this case. In McDowell, the car dealer received
commissions solely for itself and its own benefit; the
payments were not passed on to the buyers. Thus,
neither the dealer nor the insured buyers received
insurance at a reduced rate. In this case, by contrast,
the Association received payments only on behalf of its
insured members. The Association passed on the
payments to the insured members and only to the
insured members. If the alleged oral contract is
enforced, the insured members of the Association will
receive insurance protection at a cost below that
available to nonmember businesses which seek
workers' compensation insurance. It is this result, not
present in McDowell, which is prohibited by the
statute. It is immaterial that the payments are indirect,
to be made through the Association serving as a
conduit.
The Association presents two arguments to avoid the
force of the statute. Preliminarily, it argues that
Casualty's defense of illegality was waived, and
secondly, it argues that the statute does not apply
because the workers' compensation insurance provided
by Casualty did not insure (527 Pa. 66] against a "risk
in this Commonwealth," an element of 40 P.S. § 275.
[3] Casualty formally raised the issue of the illegality
of the alleged contract under Pennsylvania insurance
law for the.fust time in its post-trial motions. The
Association argues that the insurer waived the issue
under Pa.R.C.P. 227.1(b), which provides:
(b) Post-trial relief may not be granted unless the
grounds therefor,
"495 (1) if then available, were raised in pre-trial
proceedings or by motion, objection, point for charge,
request for findings of fact or conclusions of law,
offer of proof or other appropriate method at trial;
and
(2) are specified in the motion. The motion shall
state how the grounds were asserted in prc-trial
proceedings or at trial. Grounds not specked are
deemed waived unless leave is granted upon cause
shown to specify additional grounds.
The Association notes that Pa.R.C.P. 1030, New
Matter, states: "All affirmative defenses including but
not limited to ... illegality ... shall be pleaded in a
responsive pleading under the heading New Matter'...."
Furthermore, defences not properly pleaded are waived
under Pa.R.C.P. 1032(1), which provides:
A party waives all defenses and objections which he
does not present either by preliminary objection,
answer or reply, except
(1) that the defense of failure to state a claim upon
which relief can be granted, the defense of failure to
join an indispensable party, and the objection of
failure to state a legal defense to a claim may also be
made by a later pleading, if one is permitted, or by
motion for judgment on the pleadings or at the trial on
the mints....
Illegality is not one of the exceptions of Rule
1032(1), so the Association argues that the defense
was waived by Casualtys failure to raise the issue
during the pleadings.
(527 Pa. 67) There are two reasons why we reject the
Association's assertion that the issue has been waived
First, although the issue was raised clearly for the fast
time in post-trial motions, both the trial court and the
Superior Court considered the issue on the merits. As
set forth following Rule 227.1 in the Explanatory
Comment-1983, the purpose of the rule is to give the
trial court the opportunity to correct its own error. The
fact that the defense was presented to, and ruled upon,
by the trial court removes the procedure from the realm
condemned in Dilliplaine v. Lehigh Palley Trust Co.,
457 Pa. 255, 257, 322 A.2d 114, 116 (1974), wham
the trial is reduced to a "dress rehearsal' in which the
"ill-prcpared advocate" hopes that "an appellate court
will come to his aid after the fact and afford him relief
despite his failure at trial to object; thus denying the
trial court any 'chance to hear argument on the issue
and an opportunity to correct error."
[4][5] What we consider controlling, however, on the
question of waiver, is that the alleged contract is illegal
under a statute enacted in aid of significant public
policies identified by the Pennsylvania legislature. The
Pennsylvania Workmen's Compensation Act is
humanitarian and remedial in its purpose, which is to
provide workmen and their families a quick and sure
Copyright (e) West Group 2001 No claim to original U.S. God. works
588 A.2d 491, 527 Pa. 59, American Assn of Mcat Processor v. Casualty Reciprocal Exchange, (Pa. 1991)
means of payment for work-related injuries without
resort to litigation. See Wagner v. A'atlonalIndemn/ry
Co., 491 Pa. 154, 422 A.2d 1061 (1980). The
hinuance Department Act of 1921 empower the
Insurance Commissioner to administer and enforce the
insurance laws in large part to insure the solvency of
insurance companies, which, in the trorker'
compensation field, is essential to protect the rights of
injured workers. Unauthorized favorable insurance
rates, such as those allegedly offered by Casualty in this
case, undermine the ability of the Insurance
Commissioner to protect the sources of compensation
benefits which are indispensable to the welfare of
injured workers. In Dippel v. Drunonl, 365 Pa. 264,
267.68, 74 A.2d 112, 114.15 (1950), this court
applied
(527 Pa. 681 the general rule that an agreement which
violates a provision of a statute, or which cannot be
performed without violation of such a provision, is
illegal and void. Where a contract is found to be
against public policy it cannot, under any
circumstances, be made the basis of a cause of action
The law when appealed to will have nothing to do
with it, but will leave the parties just in the condition
in which it finds them." ... [W]henever it appears
that the enforcement of a contract would violate
public policy the court should refuse to proceed in an
action 1496. based solely upon it, and should dismiss
the proceedings of its own motion
(Citations omitted). The illegality of a contract is
therefore a question not entirely controlled by the rules
of pleading; whenever it appears that the enforcement
of a contract would violate public policy, the court
should dismiss the proceedings of its own motion.
Although the Dlppel case predates Rule 227. 1, the
principle remains viable: the courts of this
Commonwealth will not be used to enforce contracts
which violate public policy; such contracts are void
and the law will have nothing to do with them.
[61 The final argument of the Association is that 40
P.S. § 275 applies only to policies which insure against
'any risk in this Commonwealth." The membership of
the Association is nationwide; most of its members
who purchased insurance under the Casualty program
are employer located in states other than
Pennsylvania. The workers' compemation insurance at
issue in this case, the Association thercforc argues,
insured against the risk of injuries to workers in foreign
jurisdictions, not against any risk in this
Commonwealth.
Page 5
We must reject this argument. The Association itself
is a Pennsylvania employer and purchased worker'
compensation insurance under the Casualty program
Other Association member who participated in die
Casualty program were identified as being
Pennsylvania employers. That some, or even most, of
the participants arc businesses located outside
Pennsylvania is immaterial. The allege! 1527 Pa. 69]
contract in this case covered risks in this
Commonwealth. T6c interpretation argued by the
Association--that the statute applies only ifall the risks
insured against arc in this Commonwealth-would
totally emasculate the insurance law and the power of
the Insurance Commissioner to enforce that law. Every
standard automobile insurance policy issued in
Pennsylvania insures against risks outride the
Commonwealth, as coverage does not cease when the
automobile crosses the border into a contiguous state,
yet such automobile policies indisputably must comply
with Pennsylvania insurance laws and regulations. The
Association's theory would exempt all of these policies
from the statute because some of the risks are not "in
the Commonwealth"
This is absurd Like an automobile policy, a worker'
compensation insurance policy covers risks both within
and outside the state where the employer is located
See 77 P.S. §§ 1, 411.2. If every risk covered by a
policy had to be in Pennsylvania, then no insurance
policy would be governed by the prohibition in the
statute, and the statute would be tendered a nullity.
The legislature did not intend such a result. 1 Pa.C.S. §
1922(1) and (2).
The alleged agreement between Casualty and the
Association encompassed risks within the
Commonwealth; it was allegedly made within the
Commonwealth; one of the parties to the alleged
agreement was a Pennsylvania employe; the alleged
agreement violates the public policy of the
Commonwealth. Such an agreement is void ab Inltlo
and unenforceable. The cause of action stated by the
Association does not, therefore, entitle it to relief, and
the judgment of the. Superior Court must be reversed.
Judgment reversed.
NIX. CJ, and CAPPY, J., did not participate in the
consideration or decision of this case.
ZAPPALA, J., concur in the result.
IARSEN, J., files a dissenting opinion.
Copyright (e) West Group 2001 No claim to original U. S. Govt. works
?.... ..
? ..
588 A.2d 491, 527 Pa. 59, American Ass% of Meat Processors v. Casualty Reciprocal Exchange, (Pa 1991) Page 6
[527 Pa. 70] LARSEN, Justice, dissenting.
I disscnt, and in support thereof, adopt the Superior
Court opinion in this case authored by The Honorable
Harry M. Montgomery, American Association ofUeat
Proceuon v. Casualty Reciprocal Exchange, 388
P&Super. 179,565 A2d 173 (1989).
Copyright (c) West Group 2001 No claim to original US. Govt. works
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DENNIS P. TALTY, P.C.
A PROFESSIONAL CORPORATION
DENNIS P. TALTY, ESQUIRE'
MEMBER OF NJ AND PA BARS
'CERTIFIED DY mr SUPIONE
COURT OF NEW JERSEY AS A
CIVIL TRIAL ATTORNEY
September 11, 2000
VIA FACSIMILE (717-761-5319)
Austin F. Grogan, Esquire
24 North 32"d Street
Camp Hill, PA 17011
Re: Arbitration 99-6213
Dcar Mr. Grogan:
NEW JERSEY OFFICE:
101 WEST MAIN STREET
SECOND FLOOR
MOORESTOWN, NJ 08057
TELEPHONE, (856) 273.8852
FACSIMILE, (856)234.6850
E-MAIL: TAI.TYI.AW n OL.COM
PENNSYLVANIA OFFICE::
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(215)972.2267
FACSIMILE, (215) 972-2259
E-MAIL:
TALTYD n GFHOTELS.COM
Reply to: NJ
I represent the Defendant in the above matter, and the Plaintiff is represented by David
Greene, Esquire.
Recently, Mr. Greene contacted me and indicated that it was his intent to amend his
complaint and seek damages in excess of the arbitration limits in Cumberland County. I
agreed to a postponement of the arbitration to file the appropriate amendment. To date I
have not received the amendment, however, I am not prepared to proceed with the
arbitration as scheduled in light of the agreement that I had with Mr. Greene.
By a copy of this letter I am notifying Mr. Green that he needs to file his amended
complaint to allege damages in excess of the arbitration limits. In addition, in reliance on
Mr. Greene's telephone call and my agreement, I am scheduled to take my son to
Northeastern University this week, leaving Thursday, September 14, 2000. Accordingly,
we arc not in a position to proceed on Friday.
r'1
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LAW OFFICE OF
THOMAS S. DIEHL
401 EAST LOUTHER STREET, SUITE 103
CARLISLE, PENNSYLVANIA 17013
KIMOt11LY L. How"
LEGAL ANIRANr
May 29, 2000
Austin F. Grogan, Esquire
24 North 32"' Street
Camp Ilill, PA 17011
FILE No.00158
RE: Arbitration- No. 99-6213 Civil Term
Robert Krepich v. Wanda's Iloliday Inn, Mechanicsburg GF Investors, and
GF Development, Inc.
Dear Mr. Grogan:
Please find enclosed the August-October 2000 calendar sheets that you fonvardcd to my
office. Pursuant to your request, 1 have indicated those days that I will not be available for the
arbitration hearing.
yours,
S. Dichl
TSD/klh
Enclosures
TELEPHONE (717) 2400833 FAX (717) 2400893
LUAV
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REAGER, ADLER & COGNETTI, PC
ATTORNEYS AND COUNSELORS AT LAW
2331 MARKET STREET
CAMP HILL. PENNSYLVANIA 170114642
717.783.1383
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THEODORE A. ADLER •
DAVID W. REAGER
MARIA P. COGNETTI •?
LINUS E. FENICLE
DEBRA DENISON CANTOR
Wdtera E•Mad Address MC=&hy®opi. net
May 22, 2000
Austin F. Grogan, Esquirc
24 North 32"d Street
Camp Hill, PA 17011
THOMAS O. WILLIAMS
SUSAN H. CONFAIR
JULIE A. McCONAHY
• comfied Ctvd Trial Speciow
•• Feoaw. American Acedsmy
b MstdrrnNal Lawyers
RE: Arbitration-No. 99-6213 Civil Term
Robert Krepich v. Wanda's Holiday Inn, Mechanicsburg GF Investors,
and GF Development, Inc.
Dear Mr. Grogan:
Enclosed for your information please find:
Copies of the August-October 2000 calendar marked per your request.
? For your review ? Please call upon receipt
? For your signature 10 Per your request
? Kindly return ? Call for an appointment
? Kindly remit payment ? Copies for your file.
Very truly yours,
c A. Mc Hai
JAM/kkp
Enclosure
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ATTORNEY AT LAW
24 North 32nd Stmt
Camp Hill, PA 17011
Telephone (717) 737-1956
Fax (717) 761-5319
May 15, 2000
Thomas Diehl, Esq.
401 East Louther, Suite 103
Carlisle, PA 17013
Julie A. McConahy, Esq.
2331 Market Street
Camp Hill, PA 17011
COPY
Re: Arbitration - No. 99-6213 Civil Term
Robert Krepich V. Wanda'a Holiday Inn, Mechanicsburg GF Investors, and
GF Development, Inc.
Dear Counselors:
Please be advised that we have been appointed as arbitrators in the above
captioned matter. In order to select a time in which we will all be available for a
hearing I am enclosing copies of the August-October 2000 calendar. Please mark on
the calendar the days in which you are not available and return them to me as soon as
possible so that I may reserve a Court Room for the hearing and confirm the time with
you well in advance of the hearing date.
By copy of this letter, I am also requesting from Mr. Greene and Mr. Talty
their available times during the previously mentioned dates.
I thank you for your cooperation. If you have any questions, please contact me
at your convenience.
Sincerely,
?tj
Austin F. Grogan, Esq.
AFG/rr
Enclosures
Cc: David A. Green, Esq.
C?-----? 1?p5
Dennis Talty, Esq. r? ??P,1(rA7'? tt// ?GpShuY1S
,., JUN 1 2000 ?; ?? (7? ayS• 9 ?
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ATTORNEY AT LAW
24 North 32nd Street
Camp Hill, PA 17011
Telephone (717) 737-1956
Fax (717) 761-5319
May 15, 2000
Thomas Diehl, Esq.
401 East Louther, Suite 103
Carlisle, PA 17013
Julie A. McConahy, Esq.
2331 Market Street
Camp Hill, PA 17011
?i7
Re: Arbitration - No. 99-6213 Civil Term
Robert Krepich v. Wanda 'a Holiday Inn, Mechanicsburg GF Investors, and
GF Development, Inc.
Dear Counselors:
Please be advised that we have been appointed as arbitrators in the above
captioned matter. In order to select a time in which we will all be available for a
hearing I am enclosing copies of the August-October 2000 calendar. Please mark on
the calendar the days in which you are not available and return them to me as soon as
possible so that I may reserve a Court Room for the hearing and confirm the time with
you well in advance of the hearing date.
By copy of this letter, I am also requesting from Mr. Greene and Mr. Talty
their available times during the previously mentioned dates.
I thank you for your cooperation. If you have any questions, please contact me
at your convenience.
Sincerely,
,
Austin F. Grogan, Esq. J
AFG/rr
Enclosures
Cc: David A. Green, Esq.
Dennis Talty, Esq.
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SOP-11. 2000 4:39PN
DENNis P. TALTY, P.C.
A TstommoNAL CoaromrzoN
DENNIS P. TALTY, ESQUIRE'
MENDER OF M AND PA BARS
'C1MTW i0 aY 7110 SLMKE 13
COURT OA NEW JERSEY ASA
CIM HUALA11ORMY
September 11, 2000
VIA FACSIMELE (717-761.5319)
Austin F. Grogan, Esquire
24 North 320° Street
Camp Hill, PA 17011
Re: Arbitration 99-6213
Dear Mr. Grogan:
Ilo.2749 P. 1/2
N13W JERSEY 0PACE:
tot WESTMAINSTRMT
SECOND FLOOR
MOORESTOWN, NJ 08057
TFIFPWNF,(836)273.8952
FACSIF01.e, (856) 234-6830
FrMMU 'rA4TY1AW@AA0L.C0M
PEMYLVANIA 0MCU:
THE BELORAVIA
SUM 701
1811 01ESTM1r STREET
MAMMA, PA 19103
(215)972-2267
FACSIMILE, (213) 972-2239
E-MAIL:
TAt.7YD@OFHona.s.com
Reply to: NJ
I represent the Defendant in the above matter, and the Plaintiff is represented by David
Greene, Esquire.
Recently, Mr. Greene contacted me and indicated that it was his intent to amend his
complaint and seek damages in excess of the arbitration limits in Ctunberland County. I
agreed to a postponement of the arbitration to file the appropriate amendment. To date I
have not received the amendment, however, I am not prepared to proceed with the
arbitration as scheduled in light of the agreement that 1 had witb Mr. Greene.
By a copy of this letter I am notifying Mr. Green that he needs to file his amended
complaint to allege da,nages in excess of the arbitration limits. In addition, in reliance on
Mr. Greene's telephone call and my agreement, I am scheduled to take my son to
Northeastern University this week, leaving Thursday, September 14, 2000. Accordingly,
we are not in a position to proceed on priday.
Sw I l . 2000 4:39PM r
r
Thank you for your cooperation.
Vey truly .
D
DPT/plb
Cc: David Gmenc, Fagnito
(via facsimile 717-245-2165)
No-2749 P. 2/2 ,
4
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• C' ?i?aGi?t C?. ?ro?a?t
ATTORNEY AT LAW
24 North 32nd Street
Camp Hill, PA 17011
Telephone (717) 737-1956
Fax (717) 761-5319
September 12, 2000
Via Facsimile
Thomas Diehl, Esq.
401 East Louther, Suite 103
Carlisle, PA 17013
Julie A. McConahy, Esq.
2331 Market Street
Camp Hill, PA 17011
Re: Arbitration - No. 99-6213 Civil Term
Robert Krepich v. Wanda 'a Holiday Inn, Mechanicsburg GF Investors, and
GFDevelopment, Inc.
Dear Counselors:
Please be advised that the Arbitration scheduled for Friday, September 15, 2000
has been cancelled. If you have any questions, please contact me at your convenience.
Sincerely,
am 4((n1
Austin F. Grogan
AFG/rr
Cc: David A. Green, Esq.
Dennis Talty, Esq.
r'1
&4em 6n cS ?57a?n
ATTORNEY AT LAW
24 North 32' Street
Camp Hill, PA 17011
Phone: (717) 737-1956
P1
Fax: (717) 761-5319
FACSIMILE TRANSMISSION SHEET
DATE: September 12, 2000
TO: David Grecnc, Esq.
FROM: Austin F. Grogan, Esq.
NUMBER OF PAGES INCLUDING COVER SHEET: 2
FAX NUMBER TRANSMITTED TO: (717) 245-2165
CONFIDENTIALLY NOTE
THE INFORMATION AND DOCUMENTS ACCOMPANYING THIS TRANSMISSION
CONTAIN INFORMATION FROM THE LAW FIRM OF AUSTIN F. GROGAN WHICH IS
CONFIDENTIAL AND/OR LEGALLY PRIVILEGED. THE INFORMATION IS
INTENDED SOLELY FOR THE USE OF THE INDIVIDUAL OR ENTITY NAMED ON
THIS FACSIMILE TRANSMISSION SHEET. IF YOU ARE NOT THE DESIGNATED
RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISCLOSURE, COPYING,
DISTRIBUTION, TRANSMISSION OR TAKING OF ANY ACTION IN RELIANCE ON THE
CONTENTS OF THIS INFORMATION IS PROHIBITED.
IF YOU HAVE RECEIVED THIS FAX TRANSMISSION IN ERROR, PLEASE NOTIFY US
BY TELEPHONE IMMEDIATELY SO THAT WE CAN ARRANGE FOR THE RETURN OF
THE ORIGINAL DOCUMENTS TO US.
PLEASE CALL IMMEDIATELY IF YOU HAVE NOT RECEIVED ALL OF THE
TRANSMITTED PAGES.
e0 )
014w" 6y Sm,9nan
ATTORNEY AT LAW
24 North 32' Street
Camp Hill, PA 17011
DATE:
TO:
FROM:
Phone: (717) 737-1956
n
Fax: (717) 761-5319
FACSIMILE TRANSMISSION SHEET
September 12, 2000
Dennis Talty, Esq
Austin F. Grogan, Esq.
NUMBER OF PAGES INCLUDING COVER SHEET: 2
FAX NUMBER TRANSMITTED TO: (856) 234-6850
CONFIDENTIALLY NOTE
THE INFORMATION AND DOCUMENTS ACCOMPANYING THIS TRANSMISSION
CONTAIN INFORMATION FROM THE LAW FIRM OF AUSTIN F. GROGAN WHICH IS
CONFIDENTIAL AND/OR LEGALLY PRIVILEGED. THE INFORMATION IS
INTENDED SOLELY FOR THE USE OF THE INDIVIDUAL OR ENTITY NAMED ON
THIS FACSIMILE TRANSMISSION SHEET. IF YOU ARE NOT THE DESIGNATED
RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISCLOSURE, COPYING,
DISTRIBUTION, TRANSMISSION OR TAKING OF ANY ACTION IN RELIANCE ON THE
CONTENTS OF THIS INFORMATION IS PROHIBITED.
IF YOU HAVE RECEIVED THIS FAX TRANSMISSION IN ERROR, PLEASE NOTIFY US
BY TELEPHONE IMMEDIATELY SO THAT WE CAN ARRANGE FOR THE RETURN OF
THE ORIGINAL DOCUMENTS TO US.
PLEASE CALL IMMEDIATELY IF YOU HAVE NOT RECEIVED ALL OF THE
TRANSMITTED PAGES.
e1
C'411 fm n 6 Axogain
ATTORNEY AT LAW
24 North 32°" Street
Camp Hill, PA 17011
Phone: (717) 737-1956
n
Fax: (717) 761-5319
FACSIMILE TRANSMISSION SHEET
DATE: September 12, 2000
TO: Thomas Diehl, Esq
FROM: Austin F. Grogan, Esq.
NUMBER OF PAGES INCLUDING COVER SHEET: 2
FAX NUMBER TRANSMITTED TO: (717) 240-0893
CONFIDENTIALLY NOTE
THE INFORMATION AND DOCUMENTS ACCOMPANYING THIS TRANSMISSION
CONTAIN INFORMATION FROM THE LAW FIRM OF AUSTIN F. GROGAN WHICH IS
CONFIDENTIAL AND/OR LEGALLY PRIVILEGED. THE INFORMATION IS
INTENDED SOLELY FOR THE USE OF THE INDIVIDUAL OR ENTITY NAMED ON
THIS FACSIMILE TRANSMISSION SHEET. IF YOU ARE NOT THE DESIGNATED
RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISCLOSURE, COPYING,
DISTRIBUTION, TRANSMISSION OR TAKING OF ANY ACTION IN RELIANCE ON THE
CONTENTS OF THIS INFORMATION IS PROHIBITED.
IF YOU HAVE RECEIVED THIS FAX TRANSMISSION IN ERROR, PLEASE NOTIFY US
BY TELEPHONE IMMEDIATELY SO THAT WE CAN ARRANGE FOR THE RETURN OF
THE ORIGINAL DOCUMENTS TO US.
PLEASE CALL IMMEDIATELY IF YOU HAVE NOT RECEIVED ALL OF THE
TRANSMITTED PAGES.
eo'1 r'1
C'41 UA4 6. sr
ATTORNEY AT LAW
24 North 32ed Street
Camp Hill, PA 17011
Phone: (717) 737-1956 Fax: (717) 761-5319
FACSIMILE TRANSMISSION SHEET
DATE: September 12, 2000
TO: Julie A. McConahy, Esq.
FROM: Austin F. Grogan, Esq.
NUMBER OF PAGES INCLUDING COVER SHEET: 2
FAX NUMBER TRANSMITTED TO: (717) 2384809
CONFIDENTIALLY NOTE
THE INFORMATION AND DOCUMENTS ACCOMPANYING THIS TRANSMISSION
CONTAIN INFORMATION FROM THE LAW FIRM OF AUSTIN F. GROGAN WHICH IS
CONFIDENTIAL AND/OR LEGALLY PRIVILEGED. THE INFORMATION IS
INTENDED SOLELY FOR THE USE OF THE INDIVIDUAL OR ENTITY NAMED ON
THIS FACSIMILE TRANSMISSION SHEET. IF YOU ARE NOT THE DESIGNATED
RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISCLOSURE, COPYING,
DISTRIBUTION, TRANSMISSION OR TAKING OF ANY ACTION IN RELIANCE ON THE
CONTENTS OF THIS INFORMATION IS PROHIBITED.
IF YOU HAVE RECEIVED THIS FAX TRANSMISSION IN ERROR, PLEASE NOTIFY US
BY TELEPHONE IMMEDIATELY SO THAT WE CAN ARRANGE FOR THE RETURN OF
THE ORIGINAL DOCUMENTS TO US.
PLEASE CALL IMMEDIATELY IF YOU HAVE NOT RECEIVED ALL OF THE
TRANSMITTED PAGES.
,.J?HERIFF'S RETURN - REGULAR^
CASE NO: 1999-06213 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
KREPICH ROBERT
VS.
WANDA'S HOLIDAY INC ET AL
SHANNON SUNDAY , Sheriff or Deputy Sheriff of
CUMBERLAND County, Pennsylvania, who being duly sworn according
to law, says, the within COMPLAINT was served
upon WANDAS HOLIDAY INN MECHANICSBURG the
defendant, at 9:23 HOURS, on the 13th day of October ,
1999 at 5401 CARLISLE PIKE
MECHANICSBURG, PA 17055 CUMBERLAND
,
County, Pennsylvania, by handing to JODY MOLISON (EXECUTIVE
ADMIN.)
a true and attested copy of the COMPLAINT ,
together with NOTICE ,
and at the same time directing Her attention to the contents thereof.
Sheriff's Coate: So answe
Docketing 18.00
Service 7.44
Affidavit .00
Surcharge 8.00 Kline, K. ihomas X10/AAO9/1 OFFICES
by
Sworn and subscribed -tto before me
this ? day of (YtG LI. ,
199 A.D.
1
. el?IERIFF'S RETURN - REGULAR
CASE NO: 1999-06213 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
KREPICH ROBERT
VS.
WANDA'S HOLIDAY INC ET AL
SHANNON SUNDAY Sheriff or Deputy Sheriff of
CUMBERLAND County, Pennsylvania, who being duly sworn according
to law, says, the within COMPLAINT was served
upon GF INVESTORS the
defendant, at 9:23 HOURS, on the 13th day of October
1999 at 5401 CARLISLE PIKE
MECHANICSBURG, PA 17055 CUMBERLAND ,
County, Pennsylvania, by handing to JODY MOLISON (EXECUTIVE
ADMIN.
a true and attested copy of the COMPLAINT
together with NOTICE
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs: So answers:
Docketing 6.00
Affidavit .00? ?
Surcharge 8.00 K. laomdu R111 Z,
$1q.uU-TU O LAW OFFICES
1014/1999
by LA?C Sts gyn. , n
Sworn and subscribed to before me
this ??a day of f6ctl•i
191?q_ A.D.
CL, a G*L y1T I '
e-(?iERIFF'S RETURN - REGULAR^
CASE NO: 1999-06213 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
KREPICH ROBERT
VS.
WANDA'S HOLIDAY INC ET AL
SHANNON SUNDAY , Sheriff or Deputy Sheriff of
CUMBERLAND County, Pennsylvania, who being duly sworn according
to law, says, the within COMPLAINT was served
upon GF DEVELOPMENT the
defendant, at 9:23 HOURS, on the 13th day of October ,
1999 at _ 5401 CARLISLE PIKE
,
MECHANICSBURG PA 17055 CUMBERLAND
County, Pennsylvania, by handing to JODY MOLISON (EXECUTIVE
ADMINISTRATION)
a true and attested copy of the COMPLAINT
together with NOTICE ,
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs: So answers:
Docketing 6.00
Affidavit .00
Surcharge 8.00 ^Inomas'Kilne, S -
TIT-.UO-TU 0 T4AW OFFICES
10/14/1999
by
t„(
Sworn and subscribed to before me
this X7.2-. t( day of 06"-.-.,
19 99 A.D.
rO dly -
ROBERT KREPICH,
Plaintiff
V.
WANDA'S HOLIDAY
INN, MECHANICSBURG:
GF INVESTORS, and GF :
DEVELOPMENT, INC., :
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 99-6213 CIVIL TERM
ORDER OF COURT
AND NOW, this 28th day of August, 2001, upon relation of John A. Abom, Esq.,
attorney for Defendant, that the above matter has been settled, the nonjury trial
previously scheduled in this matter for September 24, 2001, is cancelled.
Ron Turo, Esq.
28 South Pitt Street
Carlisle, PA 17013
Attorney for Plaintiff
John A. Abom, Esq.
8 South Hanover Street
Suite 204
Carlisle, PA 17013
Dennis P. Talty, Esq.
101 West Main Street
Second Floor
Moorestown, NJ 08057
bl
AA
Tc
BY THE COURT,
i
ROBERT KREPICH, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. CIVIL ACTION - LAW
WANDA'S HOLIDAY
INN, MECHANICSBURG:
GF INVESTORS, and GF :
DEVELOPMENT, INC., :
Defendants
NO. 99-6213 CIVIL TERM
ORDER OF COURT
AND NOW, this 22°' day of August, 2001, upon relation of John A. Abom, Esq.,
attorney for Defendant, that the above matter has been settled, the nonjury trial
previously scheduled in this matter for August 22, 2001, is cancelled.
Ron Turo, Esq.
28 South Pitt Street
Carlisle, PA 17013
Attorney for Plaintiff
John A. Abom, Esq.
8 South Hanover Street
Suite 204
Carlisle, PA 17013
Dennis P. Talty, Esq.
101 West Main Street
Second Floor
Moorestown, NJ 08057
h
0
:rc
BY THE COURT,
'i57
f Eti, sw%IkjtA
Y.
ROBERT KREPICH,
Plaintiff
V.
WANDA'S HOLIDAY INN,
MECHANICSBURG GF INVESTORS,
and GF DEVELOPMENT, INC.,
Defendants
TO THE PROTHONOTARY:
: IN THE COURT OF COMMON PLEAS OF
:CUMBERLAND COUNTY, PENNSYLVANIA
: NO. X6213 CIVIL TERM
PRAECIPE
Please settle, withdraw and discontinue the above-captioned matter on behalf of
the Plaintiff.
Date
Respectfully Submitted
TURD LAW OFFICES
i
Ron Turo, Esquire
28 South Pitt Street
Carlisle, PA 17013
(717) 245-9688
Attorney for Plaintiff
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