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HomeMy WebLinkAbout07-5208THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA G. PATRICK O'CONNOR, NO. p?' S~DB C-va L Tom'"` Plaintiff vs. SIDNEY H. MILLER, Defendant :CIVIL ACTION - LAW NOTICE TO DEFEND AND CLAIM RIGHTS 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 or 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 HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 Telephone: (717) 249-3166 THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA G. PATRICK O'CONNOR, Plaintiff vs. SIDNEY H. MILLER, Defendant NO. CIVIL ACTION - LAW COMPLAINT FOR BREACH OF CONTRACT NOW, this 31st day of August, 2007, comes the plaintiff, G. Patrick O'Connor, and brings this action in contract against the defendant, Sidney H. Miller, to recover an amount of money less than fifty-thousand dollars ($50,000.00), whereof the following is a statement: 1. The Plaintiff, G. Patrick O'Connor, resides at 503 Penn Ayr Road, Camp Hill, Cumberland County, PA 17011. 2. The Defendant, Sidney H. Miller, resides at 850 E. Louther Street, Carlisle, Cumberland County, PA 17013. 3. The parties have operated a weekly dance known as the New Singles Dance since approximately 1988. 4. On March 1, 2007, in order to counter atwo-year-long decline in attendance and sales at the dance, the parties entered into an agreement aimed at increasing attendance and sales. A copy of said agreement is attached here as Exhibit "A" and incorporated herein. 5. The agreement provides that the Plaintiff would provide time, talent and financial resources to create and execute an advertisinglmarketing program in exchange for the marginal increased profits, as compared to corresponding weeks during 2006, for the weeks from March 12 through December 16, 2007. Said agreement also provided that Petitioner would compensate Respondent in the event that attendance and sales would decline, for whatever reason, compared to the comparable period in 2006. 6. Since execution of the agreement, Petitioner has engaged in an advertising/marketing program as per terms of the agreement. During that time, attendance and sales have risen substantially over the same period in 2006. 7. Respondent has been collecting all admission fees during the months in which he has been operating the dance, including the marginal profits that rightfully belong to the Petitioner under terms of the agreement. 8. Respondent has refused to pay petitioner the marginal profits as provided by the agreement. 9. As of the date of filing of this complaint, Defendant is in arrears in payments due to Plaintiff by $4,375.00. Unless Defendant makes sufficient payments, the arrearages owed will increase substantially by the end of the contract period in December. WHEREFORE, the Plaintiff prays that this Honorable Court award to .Plaintiff the profits justly due to him under the terms of the agreement of the parties, together with costs of suit and attorney fees. Respectfully submitted, c; ~. ~'~G. Patrick O'Connor Esq. 3105 Old Gettysburg Road Camp Hill, PA 17011 (717} 737-7760 VERIFICATION I verify that the facts contained in the above pleading are true and correct to the best of my knowledge, information and belief. I understand that the facts herein are verified subject to the penalties for unsworn falsification to authorities under Crimes Code, Section 4904 (18 Pa.C.S. § 4904). ~~ . Patrick O'Connor March 1, 2007 Sid- This will serve as an agreement between you and I in regard to advertising and division of dance income for from March 12 through December 16, 2007, for whatever dances we operate at the Holidome, New Cumberland Holiday Inn, Camp Hill Elks, or Valencia. During that period of time, each of us will conduct the same promotional activities that we conducted during the same time period in 2006. In addition, I will conduct an advertising campaign for which I will provide all the time and money required. We will compare the number of paid customers on each date on which we run a dance during this time period in 2007 to the number of paid customers for each dance on the corresponding weekend in 2006. For each additional person we get for each dance on a corresponding weekend (corresponding dance) in 2007 as compared to 2006, you will provide me with the share that I would normally receive for that dance, plus the money that you would normally receive. for each additional customer. For example, if we had 160 paid customers for a particular dance in 2006 and that increases to 170 customers for the corresponding dance in 2007 and we charged $10.00 for the 2007 dance (the amount charged in 2006 is irrelevant), you would pay me my share ($5) plus your share ($5) for the 10 additional customers in 2007, for a total of $50.00. If we had more customers for any dance in 200 compared to the corresponding weekend in 20~~, this will work in reverse. I will pay you $5.00 for each additional customer we had in 2006 if we run a $10.00 dance, or $4.00 if we run an $8 dance. If any dance is canceled in 2007, the attendance will be counted as zero, and the attendance for the corresponding dance in 2006 will also be counted as having an attendance of zero. Customers admitted into the dance free during 2007 for any reason will be considered a paid customer, except for Andy Selwyn. Our signatures below indicate that we both understand the above terms and agree to them. ;~ ~. ~~~f ~~ , .~~~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA G. PATRICK O'CONNOR, NO. Plaintiff/Petitioner vs. SIDNEY H. MILLER, Defendant/Respondent :CIVIL ACTION - LAW PETITION FOR SPECIAL RELIEF AND NOW, this 3/~ day of August, 2007, comes the Petitioner, and files the following Petition for Special Relief, averring as follows: 1. The Petitioner, G. Patrick O'Connor, resides at 503 Penn Ayr Road, Camp Hill, Cumberland County, PA 17011. 2. The Respondent, Sidney H. Miller, resides at 850 E. Louther Street, Carlisle, Cumberland County, PA 17013. 3. No judge has ruled upon any other issue in this same or a related matter. 4. The parties have operated dances in partnership each weekend since approximately 1988 known as the New Singles Dance, charging admission to members who attend each dance. 5. By agreement, each party has operated the dance in alternating months. 6. By long-standing agreement and practice, the parties have paid their obligations, settled up their accounts and divided all net proceeds within the week following each dance, after making whatever financial adjustments that the parties had agreed upon beforehand. Thus, there has not previously been a need for a partnership bank account. 7. On March 1, 2007, in order to counter atwo-year-long decline in attendance and sales, the partners entered into an agreement aimed at increasing attendance and sales. A copy of said agreement is attached here as Exhibit "A" and incorporated herein. 8. The agreement provides that the Petitioner would provide time, talent and financial resources to create and execute an advertising/marketing program in exchange for the marginal increased profits, as compared to corresponding weeks during 2006, for the period from March 12 through December 16, 2007. Said agreement also provided that Petitioner would compensate Respondent in the event that attendance and sales would decline, for whatever reason, compared to the comparable period in 2006. 9. Since execution of the agreement, Petitioner has engaged in an advertising/marketing program as per terms of the agreement. During that time, attendance and sales have shown a substantial increase over the same period in 2006. 10. Respondent has been collecting admission fees during the months in which he has been operating the dance, including the marginal profits that rightfully belong to the Petitioner under terms of the agreement. 11. Respondent refuses to pay petitioner the marginal profits as promised by the agreement and no longer has the funds to pay Petitioner what is owed to date. 12. At the present time, Respondent has withheld approximately $4,375.00 that rightfully belongs to Petitioner under terms of the agreement. 13. The Respondent is presently scheduled to operate nine (9) dances during the months of September and November that are likely to result in a substantial increase in the amount of compensation due to Petitioner, but will be under the control of the Respondent if he operates those dances as scheduled. 14. Based on his past actions since the agreement went into effect, it is apparent that Respondent intends to retain all net proceeds from up-coming dances that he operates. 15. If the Respondent retains all net proceeds during September and November, the amount owed to Petitioner will increase still further and by a substantial amount between the present time and the end of November. 16. Respondent has told Petitioner that he no longer has Petitioner's share of the profits that he has collected to date. 17. Petitioner has a reasonable belief that Respondent will continue to spend or otherwise dispose of the money due to Petitioner, and that Petitioner will never be able to recover the money due to him under the agreement. 18. Under the present circumstances, a substantial danger exists for physical confrontation between the partners at the dances for the purpose of collecting and controlling fees paid by dance attendees. 19. Petitioner and the dance enterprise will suffer immediate and irreparable injury if the Respondent is allowed to personally collect and dispose of proceeds due to Petitioner. 20. Respondent will not suffer any appreciative injury if the requests of the Petitioner are granted. 21. Respondent's conduct is actionable and Petitioner's rights are clear. 22. Petitioner is likely to succeed on the merits of his claims. WHEREFORE, Petitioner requests that this Honorable Court order that: (a) The parties be restrained from spending or otherwise disposing of any net proceeds from any dance until further order of this Court; (b) A joint bank account requiring signatures of both partners in order to effectuate withdrawals be established at Commerce Bank on or before September 4, 2007, that net proceeds from all dances operated by either party on and after September 2, 2007 be placed in said account within three days after each dance by the partner who has operated the dance, and that said funds shall remain in said account until further order of this Court, or (c) In the alternative, Petitioner requests whatever relief that this Court determines necessary to ensure that sufficient funds remain available to compensate Petitioner as such time as this matter is resolved. Respectfully submitted, G. atrick O'Connor, pro se 3105 Gettysburg Rd. Camp Hill, PA 17011 Telephone : 717-73 7-7760 THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA G. PATRICK O'CONNOR, NO. Plaintiff vs. SIDNEY H. MILLER, Defendant :CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certify that I have, this day, served the herein Petition to the party indicated below in accordance with the Pennsylvania Rules of Civil Procedure, at Camp Hill, Pennsylvania: Sidney H. Miller 850 E. Louther Street Carlisle, PA 17013 DATE: G. Patrick O'Connor 3105 Old Gettysburg Road Camp Hill, PA 17011 (717) 737-7760 VERIFICATION I verify that the facts contained in the above pleading are true and correct to the best of my knowledge, information and belief. I understand that the facts herein are verified subject to the penalties for unsworn falsification to authorities under Crimes Code, Section 4904 (18 Pa.C.S. § 4904). G. Patrick O'Connor March 1, 2007 Sid- This will serve as an agreement between you and I in regard to advertising and division of dance income for from March 12 through December 16, 2007, for whatever dances we operate at the Holidome, New Cumberland Holiday Inn, Camp Hill Elks, or Valencia. During that period of time, each of us will conduct the same promotional activities that we conducted during the same time period in 2006. In addition, I will conduct an advertising campaign for which I will provide all the time and money required. We will compare the number of paid customers on each date on which we run a dance during this time period in 2007 to the number of paid customers for each dance on the corresponding weekend in 2006. For each additional person we get for each dance on a corresponding weekend (corresponding dance) in 2007 as compared to 2006, you will provide me with the share that I would normally receive for that dance, plus the money that you would normally receive for each additional customer. For example, if we had 160 paid customers for a particular dance in 2006 and that increases to 170 customers for the corresponding dance in 2007 and we charged $10.00 for the 2007 dance (the amount charged in 2006 is irrelevant), you would pay me my share ($5) plus your share ($5) for' the 10 additional customers in 2007, for a total of $50.00. - ~- If we had more customers for any dance in 200 compared to the corresponding weekend in 200, this will work in reverse. I will pay you $5.00 for each additional customer we had in 2006 if we run a $10.00 dance, or $4.00 if we run an $8 dance. if any dance is canceled in 2007, the attendance will be counted as zero, and the attendance for the corresponding dance in 2006 will also be counted as having an attendance of zero_ Customers admitted into the dance free during 2007 for any reason will be considered a paid customer, except for Andy Selwyn. Our signatures below indicate that we both understand the above terms and agree to them. :;. .~~ - 7 ~x~+(~3IT~~'pt'~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA G. PATRICK O'CONNOR, PlaintifflPetitioner vs. NO. 07-5208 Civil Term SIDNEY H. MILLER, . DefendantlRespondent :CIVIL ACTION -EQUITY PETITION FOR PRELIMINARY INJUNCTION AND NOW, this Jr'~' day of September, 2007, comes the Petitioner, and files the following Petition for Preliminary Injunction pursuant to Pa. R.C.P. 1531 and in support alleges as follows, averring as follows: 1. The Petitioner, G. Patrick O'Connor, resides at 503 Penn Ayr Road, Camp Hill, Cumberland County, PA 17011. 2. The Respondent, Sidney H. Miller, resides at 850 E. Louther Street, Carlisle, Cumberland County, PA 17013. 3. No judge has ruled upon any other issue in this same or a related matter. 4. The parties have operated dances in partnership each weekend since approximately 1989 known as the New Singles Dance, charging admission to members who attend each dance. 5. By agreement, each party has operated the dance in alternating months. 6. By long-standing agreement and practice, the parties have paid their obligations, settled up their accounts and divided all net proceeds within the week following each dance, after making whatever financial adjustments that the parties had agreed upon beforehand. Thus; there has not previously been a need for a partnership bank account. 7. On Macch 1, 2007, in order to counter atwo-year-long decline in attendance and sales, the partners entered into an agreement aimed at increasing attendance and sales. A copy of said agreement is attached here as Exhibit "A" and incorporated herein. 8. The agreement provides that the Petitioner would provide time, talent and financial resources to create and execute an advertising/mazketing program in exchange for the marginal increased profits, as compared to corresponding weeks during 2006, for the period from March 12 through December 16, 2007. Said agreement also provided that Petitioner would compensate Respondent in the event that attendance and sales would decline, for whatever reason, compazed to the comparable period in 2006. 9. Since execution of the agreement, Petitioner has engaged in an advertising/mazketing program as per terms of the agreement. During that time, attendance and sales have shown a substantial increase over the same period in 2006. 10. Respondent has been collecting admission fees during the months in which he has been operating the dance, including the marginal profits that rightfully belong to the Petitioner under terms of the agreement. 11. Respondent refuses to pay petitioner the mazginal profits as promised by the agreement and no longer has the funds to pay Petitioner what is owed to date. 12. At the present time, Respondent has withheld approximately $5,491.00 that rightfully belongs to Petitioner under terms of the agreement. 13. The Respondent is presently scheduled to operate eight (8) additional dances during the months of September and November that are likely to result in a substantial increase in the amount of compensation due to Petitioner, but will be under the control of the Respondent if he operates those dances as scheduled. 14. Based on his past actions since the agreement went into effect, it is apparent that Respondent intends to retain all net proceeds from up-coming dances that he operates. 15. If the Respondent retains all net proceeds during September and November, the amount owed to Petitioner will increase still further and by a substantial amount between the present time and the end of November. 16. Respondent has told Petitioner that he no longer has Petitioner's share of the profits that he has collected to date. 17. Petitioner has a reasonable belief that Respondent will continue to spend or otherwise dispose of the money due to Petitioner, and that Petitioner will never be able to recover the money due to him under the agreement. 18. Under the present circumstances, a substantial danger exists for physical confrontation between the partners at the dances for the purpose of collecting and controlling fees paid by dance attendees. 19. Petitioner and the dance enterprise will suffer immediate and irreparable injury if the Respondent is allowed to personally collect and dispose of proceeds due to Petitioner. 20. Respondent will not suffer any appreciative injury if the requests of the Petitioner are granted. 21. Respondent's .conduct is actionable and Petitioner's rights are clear. 22. Petitioner is likely to succeed on the merits of his claims. 23. Petitioner has no adequate remedy at law. WHEREFORE, Petitioner requests that this Honorable Court enter a preliminary injunction, after notice and hearing, that a) enjoins the Respondent from spending or otherwise distributing any net proceeds from any dance until further order of this Court; b) requires a joint bank account requiring signatures of both partners in order to effectuate withdrawals be established at Commerce Bank within seven (7) days, and that net proceeds from all dances operated by either party on and after September 2, 2007 be placed in said account within two days after each dance by the partner who has operated the dance, and that said funds shall remain in said account until further order of this Court. Respectfully submitted, G. Patrick O'Connor, pro se 3105 Gettysburg Rd. Camp Hill, PA 17011 Telephone: 717-737-7760 March 1, 2007 Sid- This will serve as an agreement between you and I in regard to advertising and di~-ision of dance income for from March 12 through December 16, 2007, for whatever dances we operate at the Holidome, New Cumberland Holiday Inn, Camp Hill Elks, or Valencia. During that period of time, each of us will conduct the same promotional activities that we conducted during the same time period in 2006. In addition, I will conduct an advertising campaign for which I will provide all the time and money required. We will compare the number of paid customers on each date on which we run a dance during this time period in 2007 to the number of paid customers for each dance on the corresponding weekend in 2006. For each additional person we get for each dance on a corresponding weekend (corresponding dance) in 2007 as compared to 200b, you will provide me with the share that I would normally receive for that dance, plus the money that you would normally receive for each additional customer. For example, if we had 160 paid customers for a particular dance in 2006 and that increases to 170 customers for the corresponding dance in 2007 and we charged $10.00 for the 2007 dance (the amount charged in 2006 is irrelevant), you would pay me my share ($S) plus your shaze ($5) for the 10 additional customers in 2007, for a tofal of $50.00. If we had more customers for any dance in 200 compazed to the corresponding weekend in 200, this will work in reverse. I will pay you $5.00 for each additional customer we had in 2006 if we run a $10.00 dance, or $4.00 if we run an $8 dance. If any dance is canceled in 2007, the attendance will be counted as zero, and the attendance for the corresponding dance in 2006 will also be counted as having an attendance of zero. Customers admitted into the dance free during 2007 for any reason will be considered a paid. customer, except for Andy Selwyn. Our signatures below indicate that we both understand the above terms and agree to there. ~~ .. ~~ _~. EXff (t3 t ~" "~ << VERIFICATION I verify that the facts contained in the above petition aze true and correct to the best of my knowledge, information and belief. I understand that the facts herein are verified subject to the penalties for unsworn falsification to authorities under Crimes Code, Section 4904 (18 Pa.C.S. § 4904). G. Patrick O'Connor . Plaintiff r-~ c ~ c~ -~ -r j - ""~ _r'` _~ f- ~ " t . ~ `: i ce .. .,} G. PATRICK O'CONNOR, IN THE COURT OF COMMON PLEAS OF Plaintiff/Petitioner CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION -LAW N0.07-5208 CIVIL SIDNEY H. MILLER, Defendant/Respondent ORDER AND NOW, this ~ ~ day of September, 2007, in accordance with Rule 1531 of the Rules of Court, a hearing is set for Tuesday, the 2°d day of October, 2007, at 11:00 a.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, Patrick O'Connor, Esquire Petitioner Sidney H. Miller Respondent ~0 ! ~.S' P Q~~~D7 :rlm ~Q~~~ l,it.VAN1A SHERIFF'S RETURN - REGULAR CASE NO: 2007-05208 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND O'CONNOR G PATRICK VS MILLER SIDNEY H DAVID MCKINNEY Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon MILLER SIDNEY H the DEFENDANT at 2100:00 HOURS, on the 14th day of September, 2007 at 850 E LOUTHER STREET CARLISLE, PA 17013 SIDNEY MILLER by handing to a true and attested copy of COMPLAINT & NOTICE ORDER together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Postage Surcharge 9I2 y~b7 ~i,, 18.00 4.80 .58 10.00 .00 3 Sworn and Subscibed to before me this day of , So Answers : >~ R. Thomas Kline 09/17/2007 G PATRICK OCONNOR By. ~ , eputy Sheriff A.D. G. PATRICK O'CONNOR, IN THE COURT OF COMMON PLEAS OF Plaintiff/Petitioner: CUMBERLAND COUNTY, PENNSYLVANIA V. SIDNEY H. MILLER, CIVIL ACTION - LAW Defendant/Respondent: N0. 07-5208 CIVIL TERM IN RE: PRELIMINARY INJUNCTION ORDER OF COURT AND NOW, this 2nd day of October, 2007, this case is settled and discontinued in accordance with the agreement of the parties as announced in open court and in their presence. By the .Court, Kev G. Patrick O'Connor, Esquire 503 Penn Ayr Road Camp Hill, PA 17011 Sidney H. Miller 850 East Louther Street Carlisle, PA 17013 ` /'/ / A. Hess, J. C: o ~'es m~ ~ l~d~, rdl~t/o7 lfh ~l' ~ d ~~~r~" .) ~:~t _.~ ~. ~ :j~1 ~,~ a~_ 9 ~~ Lfl~}}~ t _ ~ .,'l'..'