HomeMy WebLinkAbout07-6285
VALLERY CLOUSE, : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFF
VS. TERM, 62-4d,6'2007
JOSEPH KATKOCIN, and No.
JOSEPH KATKOCIN DB/A
KATKO Incorporated, and
JOSEPH KATKOCIN DB/A/ :
JJK Ventures, Incorporated
: CIVIL ACTION
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 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 LEGAL HELP.
Jonathan W. Crisp, Esquire
ID# 83505
3601 Vartan Way
Harrisburg, PA 17110
Telephone: 717-909-8227
Facsimile: 717-657-0263
icriVQcrispleeal.com
Attorney for Plaintiff
VALLERY CLOUSE,
PLAINTIFF
VS.
JOSEPH KATKOCIN, and
JOSEPH KATKOCIN DB/A
KATKO Incorporated, and
JOSEPH KATKOCIN DB/A/
JJK Ventures, Incorporated
DEFENDANTS
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION
TERM, 67 _ ? - 2007
. No.
COMPLAINT
AND NOW comes Plaintiff, by and through her attorney, Jonathan W. Crisp, Esquire, and avers:
IDENTITY OF THE PARTIES
1. Plaintiff, Vallery Clouse, is an adult individual who resides in Cumberland County,
Pennsylvania with a "care of address of 3601 Vartan Way, Harrisburg, Pennsylvania 17110.
2. Defendant Joseph Katkocin is an adult individual who resides at 3803 Pamay Drive,
Mechanicsburg, Cumberland County, Pennsylvania 17050.
3. Defendant Joseph Katkocin DB/A KATKO Incorporated (a.k.a. KATKO Construction), is a
corporation doing business at 3803 Pamay Drive, Mechanicsburg, Pennsylvania 17050, with a
mailing address of P.O. Box 370, Camp Hill Pennsylvania 17001.
4. Defendant Joseph Katkocin DB/A JJK Ventures Incorporated (a.k.a. Sharkey's Bar) is a
corporation previously doing business at 247-249 South Front Street, Steelton, Pennsylvania
17113, with a mailing address of P.O. Box 370, Camp Hill Pennsylvania 17001.
FACTS
5. Plaintiff is a licensed real estate agent.
6. Plaintiff and Defendant Joseph Katkocin began a personal and professional relationship in
December 2004 and February 2005, respectively.
7. On or about February 2005, Plaintiff brokered the sale of a parcel of land, hereinafter referred
to as 4 Souder Court, between Defendant Joseph Katkocin and Greater Keystone Properties, Inc.
Title transferred on or about 31 May 2005. Plaintiff did not receive a commission on the
transaction.
8. Plaintiff and Defendant Joseph Katkocin and Defendant KATKO Inc. agreed on or about
February 2005 Plaintiff would receive a commission once Defendants had improved the land and
sold it in its improved condition.
9. From between on or about May 2005 and August 2007 Plaintiff performed various functions
and tasks for Defendant Joseph Katkocin and Defendant KATKO Inc. necessary to improve the
property, to include obtaining building permits, arranging excavation and well drilling, ordering
and picking up building supplies for 4 Souder Court as well as 100 Garfield Drive (and later 110
after it was subdivided), Carlisle Pennsylvania 17015.
10. On 3 May 2005, Plaintiff paid Larry Neidlinger three hundred dollars ($300.00) to design
the septic system for 4 Souder Court.
11. In September 2005 Plaintiff, at Defendants Joseph Katkocin and KATKO Inc.'s direction,
purchased one thousand (1,000) square feet of cherry hardwood flooring. Plaintiff paid four
thousand five hundred dollars ($4,500.00) for the flooring; Defendants did not reimburse
Plaintiff.
12. On or about 9 October 2006, Plaintiff served as real estate agent for the sale of 100 and 110
Garfield Drive, Carlisle Pennsylvania 17015 between Defendants Joseph Katkocin and KATKO
Inc. and Walt Nickel. Plaintiff did not receive a commission on the sale of 100 and 110 Garfield
Drive despite having performed the duties of real estate agent.
13. Between on or about 3 October 2006 and 15 November 2006 Plaintiff and Defendant Joseph
Katkocin attended approximately twelve (12) couples counseling sessions. Plaintiff and
Defendant agreed to split the costs of the counseling sessions. However, Plaintiff paid for nine
(9) session and Defendant paid for three (3).
14. Between on or about 18 June 2007 to 23 June 2007 Plaintiff paid two hundred seventy
dollars ($270.00) for weeding at 4 Souder Court; Defendants Joseph Katkocin or KATKO Inc.
did not reimburse Plaintiff.
15. On or about 26 June 2007, Plaintiff obtained a home equity loan in the amount of eleven
thousand dollars ($11,000.00) at an annual percentage rate (APR) of 7.6274% (daily periodic
rate of .0219178%). Plaintiff subsequently loaned Defendants Joseph Katkocin and KATKO
Inc. that amount for additional improvements to 4 Souder Court. Defendants agreed to re-pay
Plaintiff that amount plus any interest accrued upon the sale of the property.
16. On or about 26 June 2007, Plaintiff paid Defendants' Joseph Katkocin and KATKO Inc.'s
outstanding balance of three hundred fifty dollars and seventy seven cents ($350.77) at Duron
Paint and Wallcovering in Cumberland, Pennsylvania in order to purchase paint for 4 Souder
Court.
17. On or about 27 June 2007 Plaintiff paid one hundred dollars ($100.00) to have the house at 4
Souder Court cleaned.
18. On or about 2 July 2007, Plaintiff purchased carpeting from Discover Prosource in the
amount of five thousand forty eight dollars and seventy eight cents ($5,048.78) for 4 Souder
Court.
19. Between on or about 1 August 2005 and 9 August 2007 Defendant Joseph Katkocin resided
at Plaintiff's residence. Defendant did not pay any rent or pay for any utilities or maintenance.
Moreover, on or about 8 January 2007 Defendant willfully and recklessly destroyed Plaintiff's
cell phone and digital camera.
20. Defendants Joseph Katkocin and KATCO Inc. requested Plaintiff advertise his properties.
Consequently, between August 2005 and September 2006 Plaintiff advertised 4 Souder Court,
100 and 110 Garfield Drive and other land owned by Defendants Joseph Katkocin and KATKO
Inc. in three (3) separate marketing magazines for which Plaintiff incurred an expense of fifteen
thousand nine hundred twenty eight dollars ($15,928.00)
21. Between May 2007 and August 2007 Plaintiff purchased one thousand two hundred dollars
($1,200.00) in grocery items for Defendants' Joseph Katkocin and JJK Venture's bar. Moreover,
during that same time period, Plaintiff served as an employee for Defendant's bar performing bar
tending duties and many other necessary and irreplaceable functions.
COUNT I: BREACH OF CONTRACT
22. Plaintiff incorporates by reference paragraphs 1 through 19 as if set forth in full.
23. Plaintiff and Defendant entered into a valid oral contract in February 2005 whereby Plaintiff
agreed to locate a parcel of unimproved real property, 4 Souder Court, and serve as real estate
agent for Defendants Joseph Katkocin and KATKO Inc. for no fee.
24. Plaintiff and Defendants further agreed, as evidenced by Plaintiff's actions and loans and the
fact Plaintiff did not receive a commission on the initial purchase of the property despite having
served as the real estate agent for the May 2005 sale, Plaintiff would receive a sales commission
on the re-sale of the improved property.
25. Defendants Joseph Katkocin and KATKO Inc are in breach of the terms of the contract by
refusing to provide Plaintiff with her commission and refusing to reimburse her for her out of
pocket costs she incurred in the improvements.
26. Plaintiff has performed or attempted to perform, but been prevented by Defendants all
conditions precedent under the contract.
WHEREFORE, Plaintiff respectfully requests this Honorable Court enter Judgment in
her favor and against Defendants in the amount of $46,528.55 together with interest, costs of
suit, and any other damages this Court deems appropriate.
COUNT II: BREACH OF CONTRACT
27. Plaintiff incorporates by reference paragraphs 1 through 26 as if set forth in full.
28. On or before 9 October 2006, Plaintiff and Defendants Joseph Katkocin and KATKO Inc.
orally agreed that when Plaintiff served as real estate agent for Defendants when Defendants
purchased land and subsequently re-sold that same land Plaintiff would receive a commission
when Defendants re-sold the land.
29. On or about 9 October 2006 Defendants sold 100 and 110 Garfield Drive to Walt Nickels.
Plaintiff served as real estate agent for the purchase of that property for Defendants and also as
the real estate agent for the re-sale of the property from Defendants to Walt Nickels.
30. Defendants breached the terms of the contract when Defendant's failed to pay Plaintiff her
previously agreed upon 7% commission from the sale.
31. Plaintiff performed all conditions precedent under the terms of the contract.
WHEREFORE, Plaintiff respectfully requests this Honorable Court enter Judgment in
her favor and against Defendants in the amount of $8,960.00 together with interest, costs of suit,
and any other damages this Court deems appropriate.
COUNT III: UNJUST ENRICHMENT
32. Plaintiff incorporates by reference paragraphs 1 through 31 as if set forth in full.
33. Plaintiff supplied labor and groceries to Defendants Joseph Katkocin and JJK Ventures Inc.
with the expectation of remuneration from Defendants.
34. Plaintiff served as an employee for the Defendants with the expectation that she would be
compensated for her time and expenditures. Defendants failed to compensate Plaintiff for twelve
(12) weeks of labor valued at five thousand one hundred dollars ($5,100.00) and for one
thousand two hundred dollars ($1,200.00) in grocery expenditures on behalf of Sharkey's bar.
35. Defendants are unjustly enriched because they received the use and value of Plaintiff's labor
without compensation to the Plaintiff and the value of Defendant's business enterprise increased,
or was allowed to continue in operation, because of the labor and supplies Plaintiff provided.
36. The total amount of labor and supplies Defendants have received the use and benefit of
without compensation is six thousand three hundred dollars ($6,300.00).
37. Plaintiff has suffered damages as indicated herein.
WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter Judgment in
her favor and against Defendants in the amount of six thousand three hundred dollars
($6,300.00), together with interest, costs of suit, and any other damages this Court deems
appropriate.
COUNT IV: UNJUST ENRICHMENT
38. Plaintiff incorporates by reference paragraphs 1 through 37 as if set forth in full.
39. Defendant Joseph Katkocin resided with Plaintiff from on or about 1 August 2005 through 9
August 2007. Defendant did not pay rent, did not pay for any utilities or for any maintenance to
Plaintiff's residence for the time period he resided there.
40. Defendant and Plaintiff attended couple counseling sessions from 3 October 2006 to 15
November 2006 for a total of nine (9) couples counseling sessions. Each session cost sixty five
dollars ($65.00). Defendant did not pay for any of the sessions; Plaintiff paid for all of them
41. Defendant was unjustly enriched because he received the use, benefit and protection of
Plaintiff's residence without adequate consideration. Defendant was also unjustly enriched
because he received the use and value of counseling sessions without having to pay for them.
42. The total amount of unjust enrichment Defendant received from Plaintiff when he stayed at
Plaintiff's residence and attended counseling sessions with Plaintiff was thirty seven thousand
two hundred eighty one dollars ($37,281.00).
WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter Judgment in
her favor and against Defendants in the amount of thirty seven thousand two hundred eighty one
dollars ($37,281.00), together with interest, costs of suit, and any other damages this Court
deems appropriate.
COUNT V: BATTERY
43. Plaintiff incorporates by reference paragraphs 1 through 42 as if set forth in full.
44. On 8 January 2007 Defendant Joseph Katkocin entered Plaintiff's residence and grabbed
Plaintiff's cell phone and digital camera and intentionally smashed them onto the ground in
anger.
45. Plaintiff did not give Defendant permission to destroy the camera or cell phone and
Defendant's actions resulted in the complete and total destruction of the camera and cell phone.
46. The cell phone cost two hundred sixty nine dollars and ninety nine cents ($269.99) and the
digital camera cost five hundred sixty nine dollars and ninety nine cents ($569.99).
WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter Judgment in
her favor and against Defendants in the amount of eight hundred sixty six dollars and ninety
eight cents ($866.98), together with interest, costs of suit, and any other damages this Court
deems appropriate.
COUNT VI: CONVERSION
47. Plaintiff incorporates by reference paragraphs 1 through 46 as if set forth in full.
48. Plaintiff pleads in the alternative to COUNT V in the event this Honorable Court does not
find a claim for battery exists in paragraphs 43 through 46.
49. On 8 January 2007 Defendant Joseph Katkocin entered Plaintiffs residence and grabbed
Plaintiff's cell phone and digital camera and intentionally smashed them onto the ground in
anger.
50. Plaintiff did not give Defendant permission to destroy the cell phone or digital camera nor
did Defendant have any legal justification for doing so.
51. Defendant's actions permanently deprived and wrongfully interfered with Plaintiff's right
and use of her cell phone and digital camera.
52. The cell phone cost two hundred sixty nine dollars and ninety nine cents ($269.99) and the
digital camera cost five hundred sixty nine dollars and ninety nine cents ($569.99).
WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter Judgment in
her favor and against Defendants in the amount of eight hundred sixty six dollars and ninety
eight cents ($866.98), together with interest, costs of suit, and any other damages this Court
deems appropriate.
COUNT VII
53. Plaintiff incorporates by reference paragraphs 1 through 52 as if set forth in full.
54. Plaintiff pleads in the alternative to COUNT I in the event this Honorable Court does not
find a claim for breach of contract exists in paragraphs 22 through 26.
55. Plaintiff supplied labor and monies to Defendants Joseph Katkocin and KATKO Inc. with
respect to the parcel of unimproved real property, 4 Souder Court with the expectation of
reimbursement and remuneration from Defendants or that the value of Plaintiff's labor would
transfer to Plaintiff in the form a commission from the sale.
56. Defendants are unjustly enriched in that they received the use and value of Plaintiff's labor
and monies without compensation to Plaintiff and the value of Defendant's real property was
increased by the work done by Plaintiff without compensation.
57. The total amount of labor that Defendants have received the use and benefit of without
compensation is forty six thousand five hundred twenty eight dollars and fifty five cents
($46,528.55).
58. Plaintiff has suffered damages as indicated herein.
WHEREFORE, Plaintiff respectfully requests this Honorable Court enter Judgment in
her favor and against Defendants in the amount of $46,528.55 together with interest, costs of
suit, and any other damages this Court deems appropriate.
COUNT VIII
59. Plaintiff incorporates by reference paragraphs 1 through 58 as if set forth in full.
60. Plaintiff pleads in the alternative to COUNT II in the event this Honorable Court does not
find a claim for breach of contract exists in paragraphs 27 through 31.
61. Plaintiff supplied labor by serving as Defendants' Joseph Katkocin and KATCO Inc.'s real
estate agent for 100 and 110 Garfield Lane when Defendants bought and subsequently sold the
land with the expectation of remuneration from Defendants upon the closing of the sale.
62. Defendants are unjustly enriched in that they received the use and value of Plaintiff's labor
and service as real estate agent without compensation to Plaintiff and the value of Defendant's
real property was increased by the work done by Plaintiff without compensation.
63. The total amount of labor that Defendants have received the use and benefit of without
compensation is eight thousand nine hundred sixty dollars ($8,960.00).
64. Plaintiff has suffered damages as indicated herein.
WHEREFORE, Plaintiff respectfully requests this Honorable Court enter Judgment in
her favor and against Defendants in the amount of $8,960.00 together with interest, costs of suit,
and any other damages this Court deems appropriate.
WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter Judgment
in her favor and against Defendants for a total amount of ninety nine thousand nine hundred
thirty six dollars and fifty three cents ($99,936.53), together with interest, costs of suit, and any
other damages this Court deems appropriate.
U Jonathan W. Crisp, Esquire
Attorney ID No.: 83505
3601 Vartan Way
Harrisburg, Pennsylvania 17110
Ph: 717-909-8227
Fax: 717-657-0263
VALLERY CLOUSE,
PLAINTIFF
VS.
JOSEPH KATKOCIN, and
JOSEPH KATKOCIN DB/A
KATKO Incorporated, and
JOSEPH KATKOCIN DB/A/
JJK Ventures, Incorporated
DEFENDANTS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION
TERM, 2007
. No.
JURY TRIAL DEMANDED
VERIFICATION
The above Complaint is based upon information which I have furnished to my counsel
and information which has been gathered by my counsel in preparation of this matter. The
language of the Complaint is that of counsel and not of mine. I have read the Complaint and to
the extent that the Complaint is based upon information which I have given to my counsel, it is
true and correct to the best of my knowledge, information and belief. To the extent that the
content of the Complaint is that of counsel, I have relied upon counsel in making this
verification. We hereby acknowledge that the facts set forth in the aforesaid Complaint are made
subject to the penalties of 18 Pa.C.S. §4904 relating to unworn falsification to authorities.
DATE: I 0 - D-6r o- J
VALLERY CLOUSE
VALLERY CLOUSE,
PLAINTIFF
VS.
JOSEPH KATKOCIN, and
JOSEPH KATKOCIN DB/A
KATKO Incorporated, and
JOSEPH KATKOCIN DB/A/
JJK Ventures, Incorporated
DEFENDANTS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION
TERM, 2007
. No.
JURY TRIAL DEMANDED
VERIFICATION
The undersigned hereby verifies that all statements were provided by Vallery Clouse and
are true and correct to the best of my knowledge, information and belief. I hereby acknowledge
that the facts set forth in the aforesaid Complaint are made subject to the penalties of 18 Pa.C.S.
§4904 relating to unworn falsification to authorities.
Dated: 62 (s 0 C,-' W?
Jona W. Crisp, Attorney or a Plaintiff
VALLERY CLOUSE,
PLAINTIFF
VS.
JOSEPH KATKOCIN, and
JOSEPH KATKOCIN D/B/A
KATKO Incorporated, and
JOSEPH KATKOCIN D/B/A/
JJK Ventures, Incorporated
DEFENDANTS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION
TERM, 2007
: No.
JURY TRIAL DEMANDED
ACCEPTANCE OF SERVICE
THE UNDERSIGNED, Ron Turo, Esq., attorney for Defendant
Joseph Katkocin or Ron Turo's authorized agent, does hereby accept service of the
Complaint filed in the above matter.
By:
Ron Turo, Esquire
28 South Pitt Street
Carlisle, PA 17013
Attorney for Defendant
DATE:
Q
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rv
..W.r
G'Z ^C
Vallery Clouse,
Plaintiff
V.
Joseph Katkocin, and
Joseph Katkocin d/b/a
Katko Incorporated, and
Joseph Katkocin d/b/a
JJK Ventures, Incorporated,
Defendants
TO: Plaintiff, Vallery Clouse
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 07 - 6285 CIVIL TERM
JURY TRIAL DEMANDED
NOTICE
YOU ARE HEREBY NOTIFIED TO PLEAD TO THE ENCLOSED PRELIMINARY
OBJECTIONS WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A
DEFAULT JUDGMENT MAY BE ENTERED AGAINST YOU.
L013] ,*NDREW Sf4YDER, ESQUIRE
r
Vallery Clouse,
Plaintiff
V.
Joseph Katkocin, and
Joseph Katkocin d/b/a
Katko Incorporated, and
Joseph Katkocin d/b/a
JJK Ventures, Incorporated,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 07 - 6285 CIVIL TERM
JURY TRIAL DEMANDED
PRELIMINARY OBJECTIONS OF DEFENDANT
AND NOW, come the Defendants, Joseph Katkocin, Joseph Katkocin d/b/a/ Katko
Inc., and Joseph Katkocin d/b/a JJK Ventures, Inc., by and through their attorneys, Turo
Law Offices, and file Preliminary Objections in the nature of a Demurrer to dismiss with
prejudice each of the following counts, and in support hereof aver as follows:
1. Plaintiff, Vallery Clouse, filed a Complaint in the Court of Common Pleas of
Cumberland County on October 26, 2007, which was served on Defendants
on October 29, 2007.
2. Plaintiff's Complaint contains eight counts: two counts of breach of contract,
four counts of unjust enrichment, one count of battery and one count of
conversion.
3. Seven of Plaintiff's eight counts fail to state a claim, as will be discussed.
4. Plaintiff acknowledges that she is a licensed real estate agent.
5. A fair reading of the Complaint shows that Plaintiff and Defendant were
paramours at all times relevant to the Complaint.
6. Plaintiff acknowledges that she and Defendant had a personal relationship.
7. Plaintiff is a spurned paramour of Defendant.
DEMURRER AS TO COUNT I: BREACH OF CONTRACT
8. Paragraphs 1 through 7 are incorporated herein as if fully set forth.
9. In Count I, Plaintiff fails to state a claim for breach of contract for which she
can be awarded relief and Defendant demurs to Plaintiff's claim.
10. The Complaint in Count I asserts that Plaintiff arrived at an oral agreement
with Defendant for a real estate sales commission regarding 4 Souder Court.
w
11. Defendant denies the existence of any such oral agreement, but even if there
was such an agreement, Plaintiff is in no way entitled to recover a
commission because the Real Estate Licensing and Registration Act requires
that the terms of a commission be contained in writing prior to performing any
services. Otherwise, no right exists to receive a commission. 63 P.S. §
455.606a(b). (A copy of 63 P.S. § 455.606a(b) is attached hereto as Exhibit
"A.")
12. Plaintiff avers only an oral agreement because no such writing exists, and
while Defendant vehemently denies the existence of any agreement,
Plaintiff's averment, if true, would subject her to discipline by the Real Estate
Commission at the very least under 63 P.S. § 455.604(19). (A copy of 63
P.S. § 455.604(19) is attached hereto as Exhibit "B.")
WHEREFORE, for all the above reasons, this Court is requested to dismiss Count I
of the Complaint with prejudice.
DEMURRER TO COUNT II: BREACH OF CONTRACT
Paragraphs 1 through 7 are included herein as if fully set forth.
In Count II, Plaintiff fails to state a claim for breach of contract for which she
can be awarded relief and Defendant demurs to Plaintiff's claim.
The Complaint in Count II asserts that Plaintiff came to an oral agreement
with Defendant for a real estate sales commission regarding 100 and 110
Garfield Drive.
Defendant denies the Plaintiff performed any agent services in connection
with the transactions, and denies the existence of any such oral agreement;
but even if there was such an agreement, Plaintiff is no way entitled to
recover a commission because the Real Estate Licensing and Registration
Act requires that the terms of a commission be contained in writing prior to
performing any services. Otherwise, no right exists to receive a commission.
63 P.S. § 455.606a(b). (A copy of 63 P.S. § 455.606a(b) is attached hereto
as Exhibit "A.")
Plaintiff avers only an oral agreement because no such writing exists, and
while Defendant vehemently denies the existence of any agreement,
Plaintiff's averment, if true, would subject her to discipline by the Real Estate
Commission at the very least under 63 P.S. § 455.604(19). (A copy of 63
P.S. § 455.604(19) is attached hereto as Exhibit "B.")
WHEREFORE, for all the above reasons, this Court is requested to dismiss Count II
of the Complaint with prejudice.
DEMURRER TO COUNT III: UNJUST ENRICHMENT
18. Paragraphs 1 through 7 are included herein as if fully set forth.
19. In Count III, Plaintiff fails to state a claim for unjust enrichment for which she
can be awarded relief and Defendant demurs to Plaintiff's claim.
20. The Complaint in Count III asserts that Defendant was unjustly enriched by
Plaintiff's service as an "employee" at Defendant's bar and by Plaintiff's
supposed $1,200.00 grocery expenditure for said bar.
21. Plaintiff, Defendant's paramour, was a steady guest and patron at
Defendant's bar and never an "employee." Plaintiff may have infrequently
"helped out," but such voluntary assistance was without agreement and
without any expectation of remuneration. This was in keeping with the
parties' paramour relationship, as was Defendant's parallel voluntary
assistance with Plaintiffs real estate work without payment.
22. Plaintiff also accepted from Defendant a significant amount of free food and
drinks at Defendant's bar for Plaintiff and Plaintiff's friends, for which Plaintiff
received a benefit far over any reasonable payment which she claims due for
her meager services.
23. While Defendant acknowledges Plaintiff may have assisted in purchasing
groceries for his bar, Defendant avers that Plaintiff has been repaid entirely
for her expenditures, which were far less than $1,200.00; Plaintiff has
received accord and satisfaction for her grocery expenditures.
24. The simple fact that the Defendant may have benefited as a result of the
actions of the Plaintiff is not sufficient to sustain a claim for unjust enrichment;
Plaintiffs enrichment of the Defendant must be unjust. Styler v. Hugo, 422
Pa. Super. 262, 610 A.2d 347, 350 (Pa. Super. 1993). (A copy of Styler v.
? i
Hugo, 422 Pa. Super. 262, 610 A.2d 347, 350 (Pa. Super. 1993) is attached
hereto as Exhibit "C.")
25. Plaintiff's enrichment of Defendant was not unjust, as it was in keeping with
the parties' paramour relationship with the reciprocal benefits and enrichment
Plaintiff also received from Defendant; furthermore, as to the groceries in
particular, Defendant has repaid Plaintiff in full.
WHEREFORE, for all the above reasons, this Court is requested to dismiss Count III
of the Complaint with prejudice.
DEMURRER TO COUNT IV: UNJUST ENRICHMENT
26. Paragraphs 1 through 7 are included herein as if fully set forth.
27. In Count IV, Plaintiff fails to state a claim for unjust enrichment for which she
can be awarded relief and Defendant demurs to Plaintiffs claim.
28. The Complaint in Count IV asserts that Defendant was unjustly enriched by
Plaintiff when Defendant "resided" with Plaintiff without payments and for
attending counseling sessions for which Defendant avers she paid in the
entirety.
29. Plaintiffs statement that "Defendant did not pay for any of the sessions" in
paragraph 40 of the complaint contradicts Plaintiff's statement in paragraph
13 that Defendant paid for three of the sessions.
30. Said counseling sessions were scheduled at Plaintiffs demand and for
problems Plaintiff had created in the parties' relationship by having
simultaneous, illicit relations with another man, and Defendant did not attend
all nine sessions because he received no benefit from them.
31. Defendant attended three sessions and paid for all of them in their entirety,
after which the parties agreed that Defendant would no longer continue.
Plaintiffs decision to continue attending alone thereafter was her own choice
and Defendant received no benefit from those sessions, nor did he agree to
pay for them.
32. Defendant never actually "resided" in Plaintiffs home, which was less than
one-and-a-half blocks from Defendant's own residence, which he has
maintained as his residence throughout, for which he paid and continues to
pay cost such as utilities, maintenance, etc. Defendant did no more than stay
overnight at Plaintiff's home, as a response to Plaintiff's stringent demand that
he do so. Plaintiff previously had left Defendant for another man, for the
stated reason that Plaintiff refused to move in with Defendant.
However, Defendant never actually "moved in," and simply came over
to sleep at Plaintiff's residence after work, and to get up in the morning and
return to work. Furthermore, Defendant never actually resided with Plaintiff
because he was not allowed to move his belongings into Plaintiff's home even
if he had wanted to do so. Plaintiff takes direction, in a "guru" fashion, from a
local woman named Paula, from whom Plaintiff found it necessary to hide the
fact that a man was staying at her home. As a result, Plaintiff never allowed
Defendant to actually "reside" at the home, but merely to spend the night.
Defendant always maintained his own residence, for which he paid all of the
requisite costs, for the entire duration of the parties' relationship.
Moreover, Defendant's sleeping overnight at Plaintiff's home, however
frequently, was in keeping with the parties' paramour relationship, as were the
numerous nights that Plaintiff stayed at Defendant's house without paying for
rent, utilities, or maintenance. Plaintiff was thus duly enriched by Defendant.
33. The simple fact that the Defendant may have benefited as a result of the
actions of the Plaintiff is not sufficient to sustain a claim for unjust enrichment;
Plaintiff's enrichment of the Defendant must be unjust. Styler v. Hugo, 422
Pa. Super. 262, 610 A.2d 347, 350 (Pa. Super. 1993). (A copy of Styler v.
Hugo, 422 Pa. Super. 262, 610 A.2d 347, 350 (Pa. Super. 1993) is attached
hereto as Exhibit "C.")
34. Plaintiffs enrichment of Defendant was not unjust, as it was in keeping with
the parties' paramour relationship with the reciprocal benefits and enrichment
Plaintiff also received from Defendant.
WHEREFORE, for all the above reasons, this Court is requested to dismiss Count IV
of the Complaint with prejudice.
DEMURRER TO COUNT V: BATTERY
35. Paragraphs 1 through 7 are included herein as if fully set forth.
b.
36. In Count V, Plaintiff fails to state a claim for battery for which she can be
awarded relief and Defendant demurs to Plaintiffs claim.
37. The Complaint in Count V asserts that Defendant carried out a battery when
he "grabbed" Plaintiff's cell phone and digital camera and "intentionally
smashed them onto the ground in anger."
38. Plaintiff fails to state a claim for battery, only that Defendant damaged the two
stated articles of property; battery requires some sort of offensive touching
related to the Plaintiff's person, which Plaintiff does not aver.
WHEREFORE, for all the above reasons, this Court is requested to dismiss Count V
of the Complaint with prejudice.
DEMURRER TO COUNT VII
39. Paragraphs 1 through 7 are included herein as if fully set forth.
40. In Count VII, Plaintiff fails to state a claim for which she can be awarded relief
and Defendant demurs to Plaintiffs claim
41. The Complaint in Count VII asserts in the alternative to Count I that
Defendant was unjustly enriched by Plaintiffs labor and monies in assistance
to improve Defendant's property at 4 Souder Court.
42. Defendant denies Plaintiff performed any labor or supplied any monies as
stated, and further denies the existence of any agreement to transfer a value
of labor and monies into a real estate commission, but even if there was such
an agreement, Plaintiff is no way entitled to recover a commission because
the Real Estate Licensing and Registration Act requires that the terms of a
commission be contained in writing prior to performing any services.
Otherwise, no right exists to receive a commission. 63 P.S. § 455.606a(b). (A
copy of 63 P.S. § 455.606a(b) is attached hereto as Exhibit "A.")
43. Plaintiff avers only an oral agreement because no such writing exists, and
while Defendant vehemently denies the existence any agreement, Plaintiffs
averment, if true, would subject her to discipline by the Real Estate
Commission under 63 P.S. § 455.604(19), at the very least. (A copy of 63
P.S. § 455.604(19) is attached hereto as Exhibit "B.")
44. While Defendant denies Plaintiff provided the labor and monies as she
contends, even if she did, Plaintiff is not entitled to the relief requested.
45. Plaintiff carefully omits the context of the purchase and work on 4 Souder
Court, where Defendant and Plaintiff initially went into together to purchase 4
Souder Court and 6 Souder Court, with Defendant to purchase the former lot
as a "spec" house and Plaintiff to purchase the latter lot for her custom home.
46. Furthermore, even if Plaintiff conducted any assistance, which Defendant
denies, such voluntary assistance was not with any expectation of
remuneration and was in keeping with the parties' paramour relationship, as
was Defendant's parallel voluntary assistance with Plaintiffs real estate work
without payment, including enormous improvements made by Defendant to
Plaintiff's real estate project at 6 Souder Court without payment by Plaintiff.
47. Defendant put significant time, money, and labor into Plaintiff's real estate
project at 6 Souder Court, without any payment from Plaintiff, before she
backed out of the deal.
48. While Defendant acknowledges receipt from Plaintiff of $11,000.00 as
mentioned in paragraph 15, and while some of that money may have been
used for improvement of 4 Souder Court, this disbursement was payment in
full for the $11,000.00 invoice issued by Defendant to Plaintiff on November
29, 2006, for strictly professional services provided by Defendant, for which
Plaintiff duly received full benefit, and for which Plaintiff formally invoiced
Defendant for payment. (Said invoice is attached as Exhibit "D" and
incorporated herein as if fully set forth.)
49. The simple fact that the Defendant may have benefited as a result of the
actions of the Plaintiff is not sufficient to sustain a claim for unjust enrichment;
Plaintiff's enrichment of the Defendant must be unjust. Styler v. Hugo, 422
Pa. Super. 262, 610 A.2d 347, 350 (Pa. Super. 1993). (A copy of Styler v.
Hugo, 422 Pa. Super. 262, 610 A.2d 347, 350 (Pa. Super. 1993) is attached
hereto as Exhibit "C.")
50. Plaintiff's enrichment of Defendant was not unjust, as it was in keeping with
the parties' relationship with the reciprocal benefits and enrichment Plaintiff
also received from Defendant.
WHEREFORE, for all the above reasons, this Court is requested to dismiss Count
VII of the Complaint with prejudice.
DEMURRER TO COUNT VIII
51. Paragraphs 1 through 7 are included herein as if fully set forth.
52. In Count VIII, Plaintiff fails to state a claim for which she can be awarded relief
and Defendant demurs to Plaintiff's claim.
53. The Complaint in Count VIII asserts in the alternative to Count II that
Defendant was unjustly enriched by Plaintiff's labor as a real estate agent for
transactions involving 100 and 110 Garfield Drive.
54. While Defendant denies Plaintiff provided the labor as she contends, even if
she did, Plaintiff is not entitled to the relief requested.
55. While Defendant denies Plaintiff provided any work as a real estate agent for
100 and 100 Garfield Drive, and avers that, in fact, Defendant himself
performed all such functions; even if Plaintiff did such work as she describes,
she is not entitled to the relief requested.
56. Plaintiff carefully avers that she "performed the duties of a real estate agent,"
but does not state that she was actually the agent who facilitated the sale
(because she was not involved in such a capacity); therefore there is no
enrichment, unjust or otherwise, and no rightful demand for a commission. If
there was a commission due to Plaintiff as Plaintiff avers, a Seller's Cost
Sheet is required by law, and Plaintiff has supplied no such exhibit because
none exists.
57. Plaintiff is no way entitled to recover a commission because the Real Estate
Licensing and Registration Act requires that the terms of a commission be
contained in writing prior to performing any services. Otherwise, no right
exists to receive a commission. 63 P.S. § 455.606a(b). (A copy of 63 P.S. §
455.606a(b) is attached hereto as Exhibit "A.")
58. No such writing exists, and while Defendant vehemently denies the existence
any agreement, Plaintiffs averment, if true, would subject her to discipline by
the Real Estate Commission under 63 P.S. § 455.604(19), at the very least.
(A copy of 63 P.S. § 455.604(19) is attached hereto as Exhibit "B.")
59. The simple fact that the Defendant may have benefited as a result of the
actions of the Plaintiff is not sufficient to sustain a claim for unjust enrichment;
Plaintiffs enrichment of the Defendant must be unjust. Styler v. Hugo, 422
Pa. Super. 262, 610 A.2d 347, 350 (Pa. Super. 1993). (A copy of Styler v.
Hugo, 422 Pa. Super. 262, 610 A.2d 347, 350 (Pa. Super. 1993) is attached
hereto as Exhibit "C.")
60. Plaintiffs enrichment of Defendant was not unjust, as it was in keeping with
the parties' relationship with the reciprocal benefits and enrichment Plaintiff
also received from Defendant.
WHEREFORE, for all the above reasons, this Court is requested to dismiss Count
VIII of the Complaint with prejudice.
WHEREFORE, for all the above reasons, Defendants respectfully requests this
Court to dismiss all Counts I, II, III, IV, V, VII and VIII of Plaintiffs Complaint with
prejudice.
itted,
999 /07
Date
Lo ndre nyder, Esq.
Tur s
28 Sotitfi Pitt Street
Carlisle, PA 17013
Attorney for Defendants
VERIFICATION
I, Lorin A. Snyder, Esquire, counsel for the Defendants in this matter, do hereby
depose and state that the statements contained in the foregoing Preliminary Objections
are true and correct to the best of my knowledge, information and belief. I understand
that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904
relating to unsworn falsification to authorities.
i1 /1)10
Date
CERTIFICATE OF SERVICE
I hereby certify that I served a true and correct copy of the Preliminary Objections
on Jonathan W. Crisp, Esq., by depositing the same in the United States Mail, first
class, on the day of November, 2007, from Carlisle, Pennsylvania, addressed
as follows:
Jonathan W. Crisp, Esq.
3601 Vartan Way
Harrisburg, PA 17110
FFICES
28 So h Pitt eet
Carli e, P 7013
(71 -9688; FAX 717.245.2165
Attorney for Defendants
Page 1
LEXSTAT 63 P.S. § 455.606A
PENNSYLVANIA STATUTES, ANNOTATED BY LEXISNEXIS(R)
*THIS DOCUMENT IS CURRENT THROUGH ACT 56 OF THE 2007 LEGISLATIVE SESSION*
*** NOVEMBER 7, 2007 ANNOTATION SERVICE ***
PENNSYLVANIA STATUTES
TITLE 63. PROFESSIONS AND OCCUPATIONS (STATE LICENSED)
CHAPTER 13A. REAL ESTATE LICENSING ACT
CHAPTER 6. DUTIES OF LICENSEES
Go to the Pennsylvania Code Archive Directory
63 P.S. § 455.606a (2007)
NOTICE: TEXT OF THIS SECTION EFFECTIVE ON NOVEMBER 25, 1999.
§ 455.606a. Duties of licensee generally
(a) Regardless of whether a licensee is acting within the scope of an agency relationship with a consumer, a licensee
owes to all consumers to whom the licensee renders real estate services the following duties, which may not be waived:
(1) to exercise reasonable professional skill and care which meets the
practice standards required by this act;
(2) to deal honestly and in good faith;
(3) to present all written offers, written notices and other written
communications to and from parties to a real estate transaction in a
timely manner, except that the duty of a licensee under this paragraph
to present written offers may be waived by a seller of a property that
is subject to an existing contract for sale if-
(i) the waiver is in writing; and
(ii) the waiver is in the manner prescribed by the commission by
regulation;
(4) to comply with those obligations imposed upon a licensee by the act
of July 2, 1996 (P.L. 500, No. 84), known as the 'Real Estate Seller
Disclosure Act";
(5) to account in a timely manner for all money and property received
from or on behalf of any consumer to a transaction consistent with the
provisions of section 604(a)(5);
(6) to provide the consumer with information at the initial interview
63 P.S. § 455.606a
pursuant to section 608;
(7) to timely disclose to the consumer any conflicts of interest;
(8) to advise the consumer to seek expert advice on matters relating to
the transaction that are beyond the licensee's expertise;
(9) to ensure that all services that are to be provided to the consumer
are provided in a reasonable, professional and competent manner in
accordance with the practice standards of this act;
(10) to advise the consumer regarding the status of the transaction;
(11) to advise the consumer of tasks that must be completed to satisfy
an agreement or condition for settlement, provide assistance with
document preparation and advise the consumer regarding compliance with
laws pertaining to real estate transactions;
(12) to present all offers and counter offers in a timely manner,
unless a party has directed the licensee otherwise in writing; and
(13) to provide disclosure to the consumer regarding any financial
interest, including, but not limited to, a referral fee or commission,
which a licensee has in any services to be provided to the consumer by
any other person, including, but not limited to, financial services,
title transfer and preparation services, insurance, construction,
repair or inspection services. The licensee shall also provide
disclosure regarding any financial interest which an affiliated
licensee may have in any services to be provided to the consumer by any
other person. The disclosures required by this paragraph shall be made
at the time the licensee first recommends that the consumer purchase a
service in which the licensee or an affiliated licensee has a financial
interest or when the licensee first learns that the consumer will be
purchasing a service in which the licensee or an affiliated licensee
has a financial interest.
(b) (1) A licensee may not perform a service for a consumer of real
estate services for a fee, commission or other valuable consideration
paid by or on behalf of the consumer unless the nature of the service
and the fee to be charged are set forth in a written agreement between
the broker and the consumer that is signed by the consumer. This
paragraph shall not prohibit a licensee from performing services before
such an agreement is signed, but the licensee is not entitled to
recover a fee, commission or other valuable consideration in the
absence of such a signed agreement.
(2) Notwithstanding paragraph (1), an open listing agreement or a
nonexclusive agreement for a licensee to act as a buyer/tenant agent
may be oral if the seller or buyer is provided with a written
memorandum stating the terms of the agreement.
Page 2
63 P.S. § 455.606a
(3) Nothing in this subsection shall require a transaction licensee or
subagent who is cooperating with the listing broker to obtain a written
agreement from the seller.
(4) A subagent or transaction licensee who is cooperating with the
listing broker for a fee paid by the listing broker or seller shall
provide the buyer, prior to performing any services, with a written
disclosure statement signed by the buyer, describing the nature of the
services to be performed by the subagent or transaction licensee and
containing the information required by section 608. If the buyer
refuses to sign the statement, the licensee shall note the refusal on
the statement and retain it for six months.
Page 3
(c) A broker may not extend or delegate the broker's agency relationship with a principal to another broker without the
written consent of the principal.
(d) A broker may compensate another broker who assists in the marketing and sale/lease of a consumer's property.
Payment of compensation alone does not create an agency relationship between the consumer and the other broker.
(e) The fact that a licensee representing a seller/landlord also presents alternative properties to prospective
buyer/tenants does not in itself constitute a breach of a duty or obligation owed by the licensee to the seller/landlord.
(f) The fact that a licensee representing a buyer/tenant also presents alternative properties in which that buyer/tenant is
interested to other prospective buyer/tenants does not in itself constitute a breach of a duty or obligation owed by the
licensee to that buyer/tenant.
(g) A licensee may not knowingly, during or following the termination of an agency relationship reveal confidential
information of the principal, or use confidential information of the principal to the advantage of the licensee or a third
party, except when:
(1) disclosure is made with the consent of the principal;
(2) the information is disclosed to another licensee or third party
acting solely on the principal's behalf and not for any other party;
(3) the information is required to be disclosed under subpoena or court
order;
(4) it is the intention of the principal to commit a crime and the
disclosure of information is believed necessary to prevent the crime;
or
(5) the information is used to defend the licensee in a legal
proceeding against an accusation of wrongful conduct.
(h) A consumer of real estate services shall not be liable for the acts of a licensee unless the licensee is acting pursuant
to the express direction of the consumer or the licensee is acting based upon a representation of the consumer
reasonably relied upon by the licensee. A licensee shall not be liable for acts of a consumer of real estate services unless
the consumer is acting at the express direction of the licensee or the consumer is acting as a result of a representation by
Page 1
LEXSTAT 63 P.S. 455.604
PENNSYLVANIA STATUTES, ANNOTATED BY LEXISNEXIS(R)
*THIS DOCUMENT IS CURRENT THROUGH ACT 56 OF THE 2007 LEGISLATIVE SESSION*
*** NOVEMBER 7, 2007 ANNOTATION SERVICE ***
PENNSYLVANIA STATUTES
TITLE 63. PROFESSIONS AND OCCUPATIONS (STATE LICENSED)
CHAPTER 13A. REAL ESTATE LICENSING ACT
CHAPTER 6. DUTIES OF LICENSEES
Go to the Pennsylvania Code Archive Directory
63 P.S. § 455.604 (2007)
§ 455.604. Prohibited acts
(a) The commission may upon its own motion, and shall promptly upon the verified complaint in writing of any
person setting forth a complaint under this section, ascertain the facts and, if warranted, hold a hearing for the
suspension or revocation of a license or registration certificate or for the imposition of fines not exceeding S 1,000, or
both. The commission shall have power to refuse a license or registration certificate for cause or to suspend or revoke a
license or registration certificate or to levy fines up to S 1,000, or both, where the said license has been obtained by false
representation, or by fraudulent act or conduct, or where a licensee or registrant, in performing or attempting to perform
any of the acts mentioned herein, is found guilty of:
(1) Making any substantial misrepresentation.
(2) Making any false promise of a character likely to influence,
persuade or induce any person to enter into any contract or agreement
when he could not or did not intend to keep such promise.
(3) Pursuing a continued and flagrant course of misrepresentation or
making of false promises through salesperson, associate broker, other
persons, or any medium of advertising, or otherwise.
(4) Any misleading or untruthful advertising, or using any other trade
name or insignia or membership in any real estate association or
organization, of which the licensee is not a member.
(5) Failure to comply with the following requirements:
(i) all deposits or other moneys accepted by every person, holding a
real estate broker license under the provisions of this act, shall be
retained by such real estate broker pending consummation or
termination of the transaction involved, and shall be accounted for
in the full amount thereof at the time of the consummation or
termination;
Q
63 P.S. § 455.604
violation of this act.
(18) Soliciting, selling or offering for sale real property by offering
free lots, or conducting lotteries or contests or offering prizes for
the purpose of influencing by deceptive conduct any purchaser or
prospective purchaser of real property. The commission shall
promulgate necessary rules and regulations to provide standards for
nondeception conduct under this paragraph.
(i) Any offering by mail or by telephone of any prize, gift, award or
bonus in relation to the offering of sale of real property, including
time sharing, shall be accompanied by a statement of the fair market
value, not suggested retail price, of all prizes offered, plus a
statement of the odds of receiving any such prize. If the offering
is by mail the statement of value and odds shall be printed in a
clear and conspicuous manner.
(ii) If a prize is to be awarded as a rebate, coupon or discount
certificate, a statement of that fact shall be included. An offering
by mail shall include a statement of any fees and the maximum amount
of each which the prizewinner must pay in order to receive the prize.
Such fees shall include, but not be limited to, dealer preparation,
shipping, handling, redemption and shipping insurance. Each fee
associated with a prize and the odds of receiving the prize shall
appear in a clear and conspicuous manner on any offering by mail.
(iii) An offering by mail shall be written in a clear and coherent
manner, using common usages of words and terms. A concise
description of the real property or interest being promoted shall
appear in any offering and shall include a statement that the
interest is a time share, where applicable. If the prospective
prizewinner must personally visit and inspect the real property or
interest being promoted and listen to a sales presentation in order
to win a prize, the offering shall include a statement of that fact.
An offering may include instructions for a recipient to contact a
certain telephone number within a specified time period or by a
specified date, if the offeror identifies the business entity and its
relationship to the offeror and complies with this paragraph.
(iv) Substitutions of prizes having equal or greater fair market
value may be made if the offeror complies with this paragraph.
(v) As used in this paragraph, the term "prize" includes, but is not
limited to, money, personal property, vacations, travel certificates,
motor vehicles and appliances.
(19) Paying or accepting, giving or charging any undisclosed
commission, rebate, compensation or profit or expenditures for a
principal, or in violation of this act.
Page 4
Page 1
LEXSEE 422 PA. SUPER 262
David L. STYER, Esquire v. Randall W. HUGO, Esquire, Appellant
NO. 03410 PHILADELPHIA 1991
Superior Court of Pennsylvania
422 Pa. Super. 262; 619 A.2d 347, 1993 Pm Super. LEXIS 298
August 11, 1992, Argued
January 19,1993, Filed
SUBSEQUENT HISTORY: [***1] Petition for
Allowance of Appeal Granted August 23, 1993.
PRIOR HISTORY: Appeal from the Order Entered
October 21, 1991, In the Court of Common Pleas of
Bucks County, Civil, No. 90002611-17-1. Before
BIESTER, J.
DISPOSITION: The judgment of the trial court is
reversed, and the court is directed to enter j.n.o.v. in favor
of Hugo.
COUNSEL: Randall W. Hugo, in pro per.
David L. Styer, in pro per.
JUDGES: Wieand, McEwen and Beck, JJ.
OPINION BY: BECK
OPINION
would be [*264] shared with the first
lawyer, entitled to recover a portion of the
contingent fee ultimately received by the
clients' third lawyer who settled the
personal injury action and had no
agreement with the clients or either of
their prior lawyers regarding the [***2]
payment to the first lawyer of a portion of
the fee?
This interesting question arises from the following
facts. On November 24, 1984, Isaia Piccinino was
injured at a furniture store when a chair on which he was
sitting collapsed under him. At some time following this
incident, Mr. and Mrs. Piccinino retained appellee, David
Styer, Esquire, to represent them in a personal injury
action seeking damages allegedly arising from Mr.
Piccinino's fall. Although no written fee agreement
between the Piccininos and Styer was produced, the trial
court nevertheless found that the Piccininos had agreed to
pay Styer a one-third contingent fee.
[*263] [**347] This appeal from a judgment in
favor of appellee, David L. Styer, Esquire, and against
appellant, Randall W. Hugo, Esquire, poses the following
issue:
Is a lawyer who originally represented
the plaintiffs in a personal injury action
pursuant to an oral contingent fee
agreement [**348] and who, upon being
discharged by his clients prior to the
termination or settlement of the action,
requested no fee from his clients but
agreed with the clients' second lawyer that
any fee received by the second lawyer
Styer filed his entry of appearance and a writ of
summons against the defendants in the Piccininos' action
on November 5, 1986. He filed a complaint on January
29, 1987. Thereafter, he conducted discovery in the
matter. Most of his time was spent attempting to
establish the true cause of Mr. Piccinino's medical
problems. Apparently, Mr. Piccinino had a highly
litigious past and had filed numerous lawsuits and claims.
In some of those prior matters, Mr. Piccinino had sought
recovery for injuries similar to those that he now claimed
to be caused by [***3] his fall from the chair. Thus,
there was a question as to whether Mr. Piccinino's
claimed injuries were actually pre-existing conditions.
Although it would appear that no actual settlement
off'
422 Pa. Super. 262, *264; 619 A.2d 347, **348;
1993 Pa. Super. LEXIS 298, ***3
discussions took place during Styer's representation of the
Piccininos, he did convey a demand of $ 1.5 million
dollars to the defendants. This was not accepted.
At some point in late 1988, the Piccininos discharged
Styer. They were dissatisfied with the progress of the
case and thought new counsel might expedite resolution
of the matter. On December 12, 1988, Styer withdrew
his appearance on behalf of the Piccininos. He did not
request the payment of any fees from the Piccininos at
that time.
[*265] The Piccininos then retained Christopher
Brill, Esquire. Apparently Brill and Styer agreed to a fee
sharing arrangement, which Brill confirmed in a letter to
Styer, as follows:
Dear Dave [Mr. Styer]:
This letter will confirm our
discussions of November 29, 1988
wherein you transferred the above file to
me for future handling. This will also
confirm our agreement to equitably divide
any attorney fee realized in this case along
the lines we discussed.
cc: Mr. and Mrs. Isaia [***4] Piccinino
P.S. to Dave only: As further clarification of the
above, we have agreed that you will receive at a
minimum one-third of the attorney fee realized and that
this amount will be adjusted upward as circumstances
permit depending upon the ultimate recovery, time
expended to obtain same, etc. Of course, your costs
advanced will also be reimbursed from any eventual
settlement or verdict proceeds.
Very truly yours,
Christopher J. Brill
Both the testimony at trial and the foregoing letter
reveal that the Piccininos were fully informed as to this
fee sharing arrangement.
Brill expended very little time in prosecuting the
Piccininos' case. It became clear from the outset that
Brill and the Piccininos had starkly different views
Page 2
regarding the value of the case. Brill thought a settlement
demand of somewhat higher than $ 50,000 might be
reasonable, whereas the Piccininos wished to demand $
750,000. As a result, Brill suggested that the Piccininos
find themselves another lawyer.
[**349] The Piccininos then retained appellant,
Randall W. Hugo, Esquire. They located Hugo through a
referral from another of Hugo's clients. On October 30,
1989, the Piccininos executed a written [***5]
contingent fee agreement with Hugo in which they agreed
to pay him a 33 1/2% contingent fee, plus expenses. The
agreement made no mention of any fee that would be due
[*266] to Styer and recited that it was the entire
agreement between the parties. At the time this
agreement was executed, the Piccininos did not inform
Hugo that Messrs. Styer and Brill had agreed, with the
Piccininos' approval, to share any fee Brill might have
recovered.
On the same day that the Piccininos executed the
contingent fee agreement with Hugo, Brill wrote to the
Piccininos and confirmed that he would not charge them
any fee for the services he had rendered them, but that
whenever it was convenient for them he would expect
reimbursement of $ 112.50 in costs he had incurred on
their behalf. This letter also confirmed that Hugo would
thereafter represent the Piccininos. No copy of this letter
was sent to Styer, nor did Brill notify Styer through any
other means that he had given up the representation of the
Piccininos and had relinquished his claim to any fees.
On November 2, 1989, Brill wrote to Hugo
confirming that he had withdrawn and that he had turned
the entire file over to the Piccininos. Brill [***6] did not
inform Hugo of his arrangement with Styer regarding fee
sharing. It was not until Hugo reviewed the file in the
Piccininos' case, which was after the Piccininos had
signed the contingent fee agreement with Hugo, that he
became aware of this arrangement.
Hugo entered his appearance on behalf of the
Piccininos on November 3, 1989. He immediately
commenced work on the case and, after conducting
further discovery and engaging in negotiations over a
period of months, achieved a settlement for $ 105,000 in
January 1990. The Piccinino action was terminated on
February 7, 1990 and Hugo received his agreed
contingent fee.
After the settlement was concluded and Styer learned
422 Pa. Super. 262, *266; 619 A.2d 347, **349;
1993 Pa. Super. LEXIS 298, ***6
of it, he contacted Hugo to request payment of a portion
of the fee Hugo had received in consideration of Styer's
previous work in the case. Brill also called Hugo to urge
him to pay Styer a portion of the contingent fee. Hugo
refused, but did reimburse Styer for the out-of-pocket
expenses he had incurred in representing the Piccininos.
[*267] Styer then initiated this action against Hugo,
contending that Hugo had a legal obligation to remit a
portion of the fee to Styer. He argued that he was due
compensation [***7] on a quantum meruit basis because
unless such compensation were paid, Hugo would be
unjustly enriched by having received the benefits of
Styer's work on the case. After a trial without a jury
conducted on July 26, 1991, the trial court entered a
verdict in favor of Styer in the amount of $ 11,000, or
approximately one-third of the fee Hugo had received.
After post-trial motions were denied, Hugo filed this
timely appeal.
On appeal, Hugo argues that the trial court erred in
refusing to grant judgment n.o.v. in his favor. We agree.
As the Supreme Court has recently opined:
In reviewing a motion for judgment
n.o.v., "the evidence must be considered in
the light most favorable to the verdict
winner, and he must be given the benefit
of every reasonable inference of fact
arising therefrom, and any conflict in the
evidence must be resolved in his favor.
There are two bases upon which a
judgment n.o.v. can be entered: one, the
movant is entitled to judgment as a matter
of law, and/or two, the evidence was such
that no two reasonable minds could
disagree that the outcome should have
been rendered in favor of the movant.
Moure v. Raeuchle, 529 Pa. 394, 604 A.2d 1003, 1007
(1992) [***8] (citations omitted).
In the instant case, Hugo seeks judgment n.o.v. on
the first of the foregoing grounds, i.e., he argues that the
trial court committed a clear error of law in applying
[**350] the doctrine of unjust enrichment to the facts of
this case.
Page 3
"Unjust enrichment" is essentially an equitable
doctrine. The elements of unjust enrichment are "benefits
conferred on defendant by plaintiff, appreciation of such
benefits by defendant, and acceptance and retention of
such benefits under such circumstances that it would be
inequitable for defendant to retain the benefit without
payment of value." Wolf v. Wolf, 356 Pa.Super. 365, 514
A.2d 901 (1986), overruled [*268] on other grounds,
Van Buskirk v. Van Buskirk, 527 Pa. 218, 590 A.2d 4
(1991); see also Burgettstown-Smith Township Joint
Sewage Authority v. Langeloth Townsite Co., 403
Pa.Super. 84, 588 A.2d 43 (1991). Whether the doctrine
applies depends on the unique factual circumstances of
each case. In determining if the doctrine applies, we
focus not on the intention of the parties, [***9] but
rather on whether the defendant has been unjustly
enriched. State Farm Mutual Automobile Insur. Co. v.
Jim Bowe & Sons, Inc., 372 Pa.Super. 186, 539 A.2d 391,
393 (1988) (citing Myers-Macomber Engineers v. M.L. W.
Constr. Corp. and HNC Mortgage and Realty Investors,
271 Pa.Super. 484, 414 A.2d 357 (1979); Gee v. Eberle,
279 Pa.Super. 101, 420 A.2d 1050 (1980)).
Moreover, the most significant element of the
doctrine is whether the enrichment of the defendant is
unjust. The doctrine does not apply simply because the
defendant may have benefited as a result of the actions of
the plaintiff. Meehan v. Cheltenham Township, 410 Pa.
446, 189 A.2d 593 (1963) (where two parties enter into
contract which ultimately benefits third party and one
contracting party fails to perform, in absence of
misleading by third party there is no right to restitution
against third party to remedy contracting party's breach;
although third party is enriched, enrichment not deemed
unjust); see also D.A. Hill Co. v. Clevetrust Realty, 524
Pa. 425, 573A.2d 1005 (1990) [***10] (same).
Where unjust enrichment is found, the law implies a
contract between the parties pursuant to which the
plaintiff must be compensated for the benefits unjustly
received by the defendant. This contract, referred to as
either a quasi-contract or a contract implied in law,
requires that the defendant pay the plaintiff the value of
the benefits conferred, i.e. that the defendant make
restitution to the plaintiff in quantum merit. See Schott
v. Westinghouse Electric Corp., 436 Pa. 279, 290-91, 259
A.2d 443, 449 (1969); DeGasperi v. Valicenti, 198
Pa. Super. 455, 457, 181 A. 2d 862, 864 (1962).
In the instant case, the trial court found that Hugo
422 Pa. Super. 262, *268; 619 A.2d 347, **350;
1993 Pa. Super. LEXIS 298, ***10
had been unjustly enriched and, therefore, that Styer was
entitled [*269] to compensation in quantum meruit. In
so concluding, the trial court relied exclusively on this
court's opinion in Johnson v. Stein, 254 Pa.Super. 41, 385
A.2d 514 (1978), which the trial court interpreted as
specifically approving application of the doctrine of
unjust enrichment in a situation analogous to the one
presented [***11] here. We, on the other hand, find that
to the extent that the Johnson court opined on the subject
of unjust enrichment, its statements are clearly dicta. Nor
do we find the factual situation presented in Johnson to
be sufficiently analogous to the facts of this case to
warrant reliance on the Johnson court's analysis.
In Johnson, the appellant attorney initially
represented certain plaintiffs in a tort case on a contingent
fee basis. Appellee attorney was an associate in
appellant's office who worked on the tort case. Appellant
terminated appellee, and the plaintiffs in the tort case then
retained appellee to prosecute their case. Appellee settled
the case. Appellant filed a Notice of Attorney's Lien,
asserting a charging lien on the proceeds of the
settlement, and the proceeds were paid into court.
Eventually, the trial court struck the Notice of Attorney's
Lien, finding that appellant was not entitled to a charging
lien. Id. at 42, 385 A.2d at 515.
On appeal, this court agreed with the trial court that
appellant was not entitled to a charging lien and affirmed.
The court then proceeded to discuss whether appellant,
[***12] having failed to establish entitlement to a
charging lien, might have another avenue [**351] of
recourse against appellee, i.e., an action asserting unjust
enrichment and a contract implied-in-law. The court
found that appellant might well attempt to assert such a
theory against appellee.
As this brief statement of the facts and procedural
posture of Johnson reveals, the appellant had never
sought recovery on a theory of unjust enrichment at any
point in either the trial court or on appeal. The Johnson
court's gratuitous speculation as to whether appellant
might be able to pursue such a theory at a later time is
pure dicta. We further note that even in its dicta, the
Johnson court did not conclude that appellant could
recover a portion of the fee on a theory of [*270] unjust
enrichment, as the court expressly stated that it could not
determine on the record before it whether appellant
would be entitled to expenses only, or to a fee as well.
Id. at 46, 385 A. 2d at 517. Moreover, as the foregoing
Page 4
summary also indicates, the facts of Johnson are starkly
different from those involved here. Johnson was a
dispute [***13] between an employer-attorney and his
former employee-attomey who, upon termination of his
employment, took his former employer's client. In
contrast, the instant case involves a dispute between two
unrelated attorneys, with the additional complicating
factor of the involvement of attorney Brill.
We have carefully considered the course of events
precipitating this fee dispute. We have concluded that
while Hugo realized some, albeit unquantifiable, benefit
from the work that Styer performed on behalf of the
Piccininos, nevertheless, his retention of that benefit
under the circumstances of this case was not unjust. We
note at the outset that the record is not clear as to the
degree to which Hugo benefitted from Styer's work.
Despite this, the trial court concluded that Hugo "would
not have been so favorably situated to settle" the
Piccininos' case had it not been for Styer's early work on
the matter. The record does not support the conclusion
that without Styer's efforts the highly favorable resolution
of the case would not have been achieved. Styer allowed
four years after the commencement of the action to pass
while he amassed Mr. Piccinino's prior medical records
and engaged [***14] in a fruitless attempt to attribute
various of Mr. Piccinino's medical problems to his fall
from the chair so as to increase the potentially
recoverable damages. The fact that the case languished
with no progress toward settlement at all during these
four years was, in fact, the reason the Piccininos
dismissed Styer. In contrast, as soon as Hugo took over
the case he took a realistic view of its value, convinced
the Piccininos that his appraisement was correct and
achieved a very favorable settlement. The record does not
demonstrate that Hugo's ultimate success in negotiating
this settlement was materially advanced by Styer's work.
[*271] Assuming, arguendo, that Hugo realized
some benefit from Styer's work in collecting Mr.
Piccinino's medical records, we nevertheless find that his
retention of this benefit is not unjust. Rather, we find that
Styer did not adequately protect whatever right to
compensation he might have had vis-a-vis his clients, and
that the actions of both the Piccininos and Brill further
compromised Styer's ability to receive compensation.
Styer may have had a legal right to compensation
from the Piccininos for the services he had already
rendered to them [***15] as of when they terminated
422 Pa. Super. 262, *271; 619 A.2d 347, **351;
1993 Pa. Super. LEXIS 298, ***15
him. See Powers v. Rich, 184 Pa. 325, 39 A. 62 (1898);
Dorsett v. Hughes, 353 Pa.Super. 129, 509 A.2d 369
(1986). He did not choose to enforce this right against the
Piccininos. Instead, he entered into an agreement with
Brill pursuant to which he would receive a portion of
whatever fee Brill realized from the case. Notably, their
agreement made no provision for what would happen if
Brill did not see the case through to judgment or
settlement or, as ultimately happened, waived his right to
any fee in the matter. Further, when Brill did waive his
right to a fee and terminated his relationship with the
Piccininos, he never informed Styer that he had done so
or that he had turned the file over to Hugo. Nor did the
Piccininos inform Hugo of the arrangement between their
prior attorneys when they initially retained Hugo and
contractually agreed to pay him a one-third contingent
fee, with no [**352] provision for the payment of any
portion thereof to Styer. It was not until the settlement of
the Piccininos' case had been completed that both Styer
and Brill first [*** 16] contacted Hugo to attempt to have
a portion of the fee remitted to Styer.
We find no basis in this scenario for concluding that
Hugo has been unjustly enriched. Rather, Styer
inadequately protected his right to compensation for the
services he had rendered. Moreover, Brill and the
Page 5
Piccininos both compromised Styer's right by their later
actions. This, however, does not lead us to the
conclusion that whatever enrichment thereby accrued to
Hugo was unjust. When Hugo took over this matter, he
did not know of the arrangement between Styer and Brill
and the Piccininos. When he shortly thereafter [*272]
found out about it, all he learned was that Brill had
agreed to remit to Styer a portion of whatever he
recovered. He did not know and had no obligation to
ascertain what arrangements, if any, were made between
Brill, Styer and the Piccininos, when Brill ultimately
recovered nothing in the case.
In sum, the reason Styer has not been paid is that he
first failed to avail himself of the right to compensation
from the Piccininos that the law provided him, and then
relied on his agreement with Brill, which through no fault
of Hugo's, ultimately yielded Styer nothing. See Meehan,
supra [***17] (where a party inadequately protects its
right to compensation from the direct recipient of its
services, it cannot thereafter seek restitution against one
indirectly benefited by those services who in no way
induced the provision of services).
The judgment of the trial court is reversed, and the
court is directed to enter j.n.o.v. in favor of Hugo.
Sep 27 07 11:12p
KATTI-Cs.-O CONSTRUCTION
P O.BOX 370
CAMP PIILL,PA 17001
OFFICE # (71.7)732-1071
FAX# (717)732-1071
JOB INVOICE
LOUTHER ST.
CARLISLE,PA 17013
REMODEL TOWNHOME PROJECT
* IMPORTANT RUSH JOB
OWNER: VALLERY CLOUSE
JOB DESCRIPTION: REMOVE WET,MOLDY,CARPF,T,PADDING AND
U`NDERLAYMENT,REPAIR SUBFLOOR WHERE NEEDED; PERFORM LABOR TO
DISPOSE OF SUCH;REMOVE UPSTAIRS TOILET, VANITY AND FLOORING
REPAIR FLOOR AS NEEDED ; INSTALL NEW TOILET AND VANITY ONCE NEW
VINYL FLOORING IS INSTALLED ; REMOVE PANELLING, TRIM, AND DROP
CEILING ON FIRST FLOOR SO AS TO FACILITATE ADDITION OF 1 st FLOOR
FULL BATH W/ SHOWER WHICH INCLUDES DESIGN WORK SUPPLYING MS.
CLOUSE ALL NECESSARY PLANS AND MATERIALS LIST SO SHE CAN DRAW
BUILDING PERMIT. FROM CARLISLE BOROUGH INCLUDING HIS'T'ORIC
SOCIETY WHICH WE WILL ATTEND SCHEDULED MEETING W/ HER ;PICKUP
AND REMOVE REFRIGERATOR AND GAS RANGE PICKUP AND INSTALLL
NEW GAS RANGE AND REFRIGERATOR FROM SEARS IN CARLISLE RUN
p.2
Sep 27 07 11:12p
ALL SEWER WASTE, AND WATER LINES FOR FULL BATH ADDITION RUN
ELECTRICAL CIRCUITS TO PANEL REPAIR FAULTY MAIN GROUND ON
MAIN CIRCUIT PANEL (RECOMMENDED HIGHLY THAT CIRCUIT PANEL BE
UPGRADED DUE TO AGE AND MANUFACTURER ALSO RECOMMEND SAME
FOR GAS FURNACE DUE. TO AGE AND CONDITION THESE UNITS ARE
KNOWN TO -BURN" THROUGH THE RESONATOR AND COULD PRODUCE
DEADLY CARBON MONOXIDE GASES ;INSULA"f E FLOOR AREAS APPLY
FOAM SEALERS, CAULK, INTERIOR AND EXTERIOR :REINSTALL DROP
CEILINGS ; FRAME 1 st FLOOR BATH ADDITION RUN ALL PLUMBING
DRAINS AND SUPPLIES PROVIDE FIXTURES INSTALL SHOWER UNIT
PROVIDE TILE SUB-CONTRACTOR INSTALL DRYWALL PAINT INSTALL
UI?IDERLAYMENT ; PROVIDE. FLOORING SUB CONTRACTOR (ASSISTED SUB-
CONTRACTOR TO REDUCE LABOR BY 50%) RE-INSTALL PANELING AND
ORIGINAL TRIMS SO AS TO MAKE ADDITION "CONFORM" TO ORIGINAL
APPEARANCE OF HOME REMOVE ALL CONSTRUCTION DEBRIS ;ALLOW
MS. CLOUSE TO PLACE HER REPLACEMENT WINDOW ORDER ON
CONSTRUCTION ACCOUNT TO BE PAID IN FULL PRIOR TO DELIVERY.
TOTAL INVOICE DUE : $ 9,520.00
*(DOES NOT INCLUDE REPLACEMENT WINDOWS NVOICE )
THANK-YOU FOR YOUR TIMELY PAYMENT
INVOICE DATE : 11/29/2006
CO. PICK UNIT UP FROM R.F. FAGER CO. DELIVER TO 1104 CHELMSFORD DR
I HE CLOUSE RESIDENCE. WAS ASSISTED N MOVING AND REMOVING, UNI'T'
FROM RESIDENCE BASEMENT BY MS. CLOUSE'S EX- BROTHER IN LAW
PROVIDED ALL NECESSARY MATERIALS,SUPPLIES AND LABOR TO
FACILITATE INSTALLATION.
TOTAL INVOICE DUE : $ 1,480.00
p.3
Sep 27 07 11:13p
ALL SEWER WASTE AND WATER LINES FOR FULL BATH ADDITION RUN
ELECTRICAL CIRCUITS TO PANEL REPAIR FAULTY MAIN GROUND ON
MAIN CIRCUIT PANEI, (RECOMMENDED HIGHLY THAT CIRCUIT PANEL BE
UPGRADED DUE TO AGE AND MANUFACTURER ALSO RECOMMEND SAME.
FOR GAS FURNACE DUE TO AGE AND CONDITION THESE UNITS ARE
KNOWN TO "BURN" THROUGH. THE RESONATOR AND COULD PRODUCE
DEADLY CARBON MONOXIDE GASES ;INSULATE FLOOR AREAS APPLY
FOAM SEALERS, CAULK, INTERIOR AND EXTF,RIOR ;REINSTALL DROP
CEILINGS ; FRAME Ist FLOOR BATH ADDITION RUN ALL PLUMBING
DRAINS AND SUPPLIES PROVIDE FIXTURES INSTALL SHOWER. UNIT
PROVIDE TILE SUB-CONTRAC'T'OR INSTALL DRYWALL PAINT INSTALL
UNDERLAYMENT ; PROVIDE FLOORING SUB CONTRACTOR (ASSISTED SUB-
CONTRACTOR TO REDUCE LABOR BY 50%) RE-INSTALL PANELING AND
ORIGINAL TRIMS SO AS TO MAKE ADDITION "CONFORM" TO ORIGINAL
APPEARANCE OF HOME REMOVE ALL CONSTRUCTION DEBRIS ;ALLOW
MS. CLOUSE TO PLACE HER REPLACEMENT WINDOW ORDER ON
CONSTRUCTION ACCOUNT TO BE PAID IN FULL PRIOR TO DELIVERY.
TOTAL INVOICE DUE : $ 9,520.00
*(DOES NOT INCLUDE REPLACEMENT WINDOWS INVOICE)
THANK-YOU FOR YOUR TIMELY PAYMENT
p.4
INVOICE DATE : 11 /29/2006
Oct 26 07 01:33p
• -
KATK01-IN-C.
RO.BOX 370
CAMP HILL,PA 17001
OFFICE # (717)732-1071
FAX# (717)732-8629
.INVOICE
JOB : CHURCHTOWN PROPERTY
OWNER : CLOUSE
INSTALL RADON MITIGATION SYSTEM IN OLD FARMHOUSE SEAL EARTHEN
CRAWLSPACE W/ RUBBER ROOF INSTALL 3" PVC VENT PIPE THRU STONE
WALL AND UP TO AND ABOVE ROOF LINE SUPPLY AND RUN ELECTRICAL
CIRCUIT TO POWER RADON FAN SOME LABOR PROVIDED BY OTHERS AND
p.3
PAID BY CLOUSE FARMS MY LABOR AND MATERIALS TOTAL $ 480.00
Lam, l'?
17 J1
?- C) rn
0
VALLERY CLOUSE, IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION
PLAINTIFF
VS. : CIVIL TERM
JOSEPH KATKOCIN, and No.: 07-6285
JOSEPH KATKOCIN DB/A
KATKO Incorporated, and
JOSEPH KATKOCIN DB/A/
JJK Ventures, Incorporated
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 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 LEGAL HELP.
Cumberland County Bar Association, 2 Liberty Avenue, Carlisle, Pennsylvania,
telephone number: 717-249-3166
VALLERY CLOUSE, IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFF
: CIVIL ACTION
VS. : CIVIL TERM
JOSEPH KATKOCIN, and No.: 07-6285
JOSEPH KATKOCIN DB/A
KATKO Incorporated, and
JOSEPH KATKOCIN DB/A/
JJK Ventures, Incorporated
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 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 LEGAL HELP.
Cumberland County Bar Association, 2 Liberty Avenue, Carlisle, Pennsylvania,
telephone number: 717-249-3166
Jonathan W. Crisp, Esquire
IN 83505
3601 Vartan Way
Harrisburg, PA 17110
Telephone: 717-909-8227
Facsimile: 717-657-0263
icrisp@criaplegal.co m Attorney for Plaintiff
VALLERY CLOUSE, IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION
PLAINTIFF
VS. CIVIL TERM
JOSEPH KATKOCIN, and No.: 07-6285
JOSEPH KATKOCIN DB/A
KATKO Incorporated, and
JOSEPH KATKOCIN DB/A/
JJK Ventures, Incorporated
DEFENDANTS
AMENDED COMPLAINT
AND NOW comes Plaintiff, by and through her attorney, Jonathan W. Crisp, Esquire, and in
response to Defendants' Preliminary Objections files this amended complaint and in support
thereof avers as follows:
IDENTITY OF THE PARTIES
1. Plaintiff, Vallery Clouse, is an adult individual who resides in Cumberland County,
Pennsylvania with a "care of address of 3601 Vartan Way, Harrisburg, Pennsylvania 17110.
2. Defendant Joseph Katkocin is an adult individual who resides at 3803 Pamay Drive,
Mechanicsburg, Cumberland County, Pennsylvania 17050.
3. Defendant Joseph Katkocin DB/A KATKO Incorporated (a.k.a. KATKO Construction), is a
corporation doing business at 3803 Pamay Drive, Mechanicsburg, Pennsylvania 17050, with a
mailing address of P.O. Box 370, Camp Hill Pennsylvania 17001.
4. Defendant Joseph Katkocin DB/A JJK Ventures Incorporated (a.k.a. Sharkey's Bar) is a
corporation previously doing business at 247-249 South Front Street, Steelton, Pennsylvania
17113, with a mailing address of P.O. Box 370, Camp Hill Pennsylvania 17001.
FACTS
5. Plaintiff and Defendant Joseph Katkocin began a personal and professional relationship in
December 2004 and February 2005, respectively.
6. On or about February 2005, Plaintiff brokered the sale of a parcel of land, hereinafter referred
to as 4 Souder Court, between Defendant Joseph Katkocin and Greater Keystone Properties, Inc.
Title transferred on or about 31 May 2005. Plaintiff, as a licensed real estate agent, did not
receive a commission on the transaction.
7. From between on or about May 2005 and August 2007 Plaintiff performed various functions
and tasks for Defendant Joseph Katkocin and Defendant KATKO Inc. to improve the property at
4 Souder Court, to include obtaining building permits, arranging excavation and well drilling,
buying lunches for Defendant KATKO Inc's employees and Defendant Joseph Katkocin,
ordering and picking up building supplies for 4 Souder Court as well as 100 Garfield Drive (and
later 110 after it was subdivided), Carlisle Pennsylvania 17015.
8. On 3 May 2005, Plaintiff paid Larry Neidlinger three hundred dollars ($300.00) to design the
septic system for 4 Souder Court.
9. In September 2005 Plaintiff, at Defendants Joseph Katkocin and KATKO Inc.'s direction,
purchased one thousand (1,000) square feet of cherry hardwood flooring for use in 4 Souder
Court. Plaintiff paid four thousand five hundred dollars ($4,500.00) for the flooring; Defendants
did not reimburse Plaintiff.
10. Between on or about 3 October 2006 and 15 November 2006 Plaintiff and Defendant Joseph
Katkocin attended approximately twelve (12) couples counseling sessions. Plaintiff and
Defendant agreed to split the costs of the counseling sessions. However, Plaintiff paid for nine
(9) session and Defendant paid for only three (3).
11. Between on or about 18 June 2007 to 23 June 2007 Plaintiff paid two hundred seventy
dollars ($270.00) for weeding at 4 Souder Court; Defendants Joseph Katkocin or KATKO Inc.
did not reimburse Plaintiff.
12. On or about 26 June 2007, Plaintiff obtained a home equity loan in the amount of eleven
thousand dollars ($11,000.00) at an annual percentage rate (APR) of 7.6274% (daily periodic
rate of .0219178%). Plaintiff subsequently loaned Defendants Joseph Katkocin and KATKO
Inc. that amount for additional improvements to 4 Souder Court. Defendants agreed to re-pay
Plaintiff that amount plus any interest accrued upon the sale of the property.
13. On or about 26 June 2007, Plaintiff paid Defendants' Joseph Katkocin and KATKO Inc.'s
outstanding balance of three hundred fifty dollars and seventy seven cents ($350.77) at Duron
Paint and Wallcovering in Cumberland, Pennsylvania in order to purchase paint for 4 Souder
Court.
14. On or about 27 June 2007 Plaintiff paid one hundred dollars ($100.00) to have the house at 4
Souder Court cleaned in preparation of the sale.
15. On or about 2 July 2007, Plaintiff purchased carpeting from Discover Prosource in the
amount of five thousand forty eight dollars and seventy eight cents ($5,048.78) for 4 Souder
Court, also in preparation of its sale.
Court. Plaintiff paid four thousand five hundred dollars ($4,500.00) for the flooring; Defendants
did not reimburse Plaintiff.
10. Between on or about 3 October 2006 and 15 November 2006 Plaintiff and Defendant Joseph
Katkocin attended approximately twelve (12) couples counseling sessions. Plaintiff and
Defendant agreed to split the costs of the counseling sessions. However, Plaintiff paid for nine
(9) session and Defendant paid for only three (3).
11. Between on or about 18 June 2007 to 23 June 2007 Plaintiff paid two hundred seventy
dollars ($270.00) for weeding at 4 Souder Court; Defendants Joseph Katkocin or KATKO Inc.
did not reimburse Plaintiff.
12. On or about 26 June 2007, Plaintiff obtained a home equity loan in the amount of eleven
thousand dollars ($11,000.00) at an annual percentage rate (APR) of 7.6274% (daily periodic
rate of .0219178%). Plaintiff subsequently loaned Defendants Joseph Katkocin and KATKO
Inc. that amount for additional improvements to 4 Souder Court. Defendants agreed to re-pay
Plaintiff that amount plus any interest accrued upon the sale of the property.
13. On or about 26 June 2007, Plaintiff paid Defendants' Joseph Katkocin and KATKO Inc.'s
outstanding balance of three hundred fifty dollars and seventy seven cents ($350.77) at Duron
Paint and Wallcovering in Cumberland, Pennsylvania in order to purchase paint for 4 Souder
Court.
14. On or about 27 June 2007 Plaintiff paid one hundred dollars ($100.00) to have the house at 4
Souder Court cleaned in preparation of the sale.
15. On or about 2 July 2007, Plaintiff purchased carpeting from Discover Prosource in the
amount of five thousand forty eight dollars and seventy eight cents ($5,048.78) for 4 Souder
Court, also in preparation of its sale.
16. Between on or about 1 August 2005 and 9 August 2007 Defendant Joseph Katkocin resided
at Plaintiff's residence. Defendant did not pay any rent or pay for any utilities or maintenance at
Plaintiff's property. Moreover, on or about 8 January 2007 Defendant willfully and recklessly
destroyed Plaintiff's cell phone and digital camera. The cell phone cost two hundred sixty nine
dollars and ninety nine cents ($269.99) and the digital camera cost five hundred sixty nine
dollars and ninety nine cents ($569.99).
17. Between May 2007 and August 2007 Plaintiff purchased one thousand two hundred dollars
($1,200.00) in grocery items for Defendants' Joseph Katkocin and JJK Venture's bar. Moreover,
during that same time period, Plaintiff served as an employee for Defendant's bar performing bar
tending duties and many other necessary and irreplaceable functions.
COUNT I: UNJUST ENRICHMENT
18. Plaintiff incorporates by reference paragraphs 1 through 17 as if set forth in full.
19. Plaintiff supplied labor and monies to Defendants Joseph Katkocin and KATKO Inc. with
respect to the parcel of unimproved real property, 4 Souder Court with the expectation of
reimbursement and remuneration from Defendants upon the sale of the property.
20. Defendants are unjustly enriched in that they received the use and value of Plaintiff's monies
without reimbursement and compensation to Plaintiff and the value of Defendant's real property
was increased by the monies and labor contributed by Plaintiff.
21. The total amount of monies Defendants received the use and benefit of without
reimbursement or compensation is twenty one thousand five hundred sixty nine dollars and fifty
five cents ($21,569.55).
22. Plaintiff has suffered damages as indicated herein.
WHEREFORE, Plaintiff respectfully requests this Honorable Court enter Judgment in
her favor and against Defendants in the amount of twenty one thousand five hundred sixty nine
dollars and fifty five cents ($21,569.55) together with interest, costs of suit, and any other
damages this Court deems appropriate.
COUNT II: UNJUST ENRICHMENT
23. Plaintiff incorporates by reference paragraphs 1 through 22 as if set forth in full.
24. Plaintiff supplied labor and groceries to Defendants Joseph Katkocin and JJK Ventures Inc.
with the expectation of remuneration from Defendants.
25. Plaintiff served as an employee for the Defendants with the expectation that she would be
compensated for her time and expenditures. Defendants failed to compensate Plaintiff for twelve
(12) weeks of labor valued at five thousand one hundred dollars ($5,100.00) and for one
thousand two hundred dollars ($1,200.00) in grocery expenditures on behalf of Sharkey's bar.
26. Defendants are unjustly enriched because they received the use and value of Plaintiff's labor
without compensation to the Plaintiff and the value of Defendant's business enterprise increased,
or was allowed to continue in operation, because of the labor and supplies Plaintiff provided.
27. The total amount of labor and supplies Defendants have received the use and benefit of
without compensation is six thousand three hundred dollars ($6,300.00).
28. Plaintiff has suffered damages as indicated herein.
WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter Judgment in
her favor and against Defendants in the amount of six thousand three hundred dollars
($6,300.00), together with interest, costs of suit, and any other damages this Court deems
appropriate.
WHEREFORE, Plaintiff respectfully requests this Honorable Court enter Judgment in
her favor and against Defendants in the amount of twenty one thousand five hundred sixty nine
dollars and fifty five cents ($21,569.55) together with interest, costs of suit, and any other
damages this Court deems appropriate.
COUNT II: UNJUST ENRICHMENT
23. Plaintiff incorporates by reference paragraphs 1 through 22 as if set forth in full.
24. Plaintiff supplied labor and groceries to Defendants Joseph Katkocin and JJK Ventures Inc.
with the expectation of remuneration from Defendants.
25. Plaintiff served as an employee for the Defendants with the expectation that she would be
compensated for her time and expenditures. Defendants failed to compensate Plaintiff for twelve
(12) weeks of labor valued at five thousand one hundred dollars ($5,100.00) and for one
thousand two hundred dollars ($1,200.00) in grocery expenditures on behalf of Sharkey's bar.
26. Defendants are unjustly enriched because they received the use and value of Plaintiff's labor
without compensation to the Plaintiff and the value of Defendant's business enterprise increased,
or was allowed to continue in operation, because of the labor and supplies Plaintiff provided.
27. The total amount of labor and supplies Defendants have received the use and benefit of
without compensation is six thousand three hundred dollars ($6,300.00).
28. Plaintiff has suffered damages as indicated herein.
WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter Judgment in
her favor and against Defendants in the amount of six thousand three hundred dollars
($6,300.00), together with interest, costs of suit, and any other damages this Court deems
appropriate.
COUNT III: UNJUST ENRICHMENT
29. Plaintiff incorporates by reference paragraphs 1 through 38 as if set forth in full.
30. Defendant Joseph Katkocin resided with Plaintiff from on or about 1 August 2005 through 9
August 2007. Defendant did not pay rent, did not pay for any utilities or for any maintenance to
Plaintiff's residence for the time period he resided there.
31. Defendant Joseph Katkocin and Plaintiff attended couple counseling sessions from 3
October 2006 to 15 November 2006 for a total of twelve (12) couples counseling sessions. Each
session cost sixty five dollars ($65.00). Defendant Joseph Katkocin only paid for three (3) of the
sessions and Plaintiff paid for the remaining nine (9) sessions.
32. Defendant Joseph Katkocin was unjustly enriched because he received the use, benefit and
protection of Plaintiff's residence without adequate consideration. Defendant Joseph Katkocin
was also unjustly enriched because he received the use and value of counseling sessions without
having to pay for them.
33. The total amount of unjust enrichment Defendant Joseph Katkocin received from Plaintiff
when he stayed at Plaintiff's residence and attended counseling sessions with Plaintiff was thirty
seven thousand two hundred eighty one dollars ($37,281.00).
WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter Judgment in
her favor and against Defendants in the amount of thirty seven thousand two hundred eighty one
dollars ($37,281.00), together with interest, costs of suit, and any other damages this Court
deems appropriate.
COUNT IV: CONVERSION
34. Plaintiff incorporates by reference paragraphs 1 through 33 as if set forth in full.
35. On 8 January 2007 Defendant Joseph Katkocin entered Plaintiff's residence and grabbed
Plaintiff's cell phone and digital camera and intentionally smashed them onto the ground in
anger.
36. Plaintiff did not give Defendant Joseph Katkocin permission to destroy the cell phone or
digital camera nor did Defendant Joseph Katkocin have any legal justification for doing so.
37. Defendant Joseph Katkocin's actions permanently deprived and wrongfully interfered with
Plaintiff's right and use of her cell phone and digital camera.
38. The cell phone cost two hundred sixty nine dollars and ninety nine cents ($269.99) and the
digital camera cost five hundred sixty nine dollars and ninety nine cents ($569.99).
WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter Judgment in
her favor and against Defendants in the amount of eight hundred sixty six dollars and ninety
eight cents ($866.98), together with interest, costs of suit, and any other damages this Court
deems appropriate.
COUNT V: BATTERY
39. Plaintiff incorporates by reference paragraphs 1 through 38 as if set forth in full.
40. Plaintiff pleads in the alternative to COUNT IV in the event this Honorable Court does not
find a claim for conversion exists in paragraphs 34 through 38.
41. On 8 January 2007 Defendant Joseph Katkocin entered Plaintiff's residence and grabbed
Plaintiff's cell phone and digital camera and intentionally smashed them onto the ground in
anger.
42. Plaintiff did not give Defendant permission to destroy the camera or cell phone and
Defendant's actions resulted in the complete and total destruction of the camera and cell phone.
35. On 8 January 2007 Defendant Joseph Katkocin entered Plaintiff's residence and grabbed
Plaintiff's cell phone and digital camera and intentionally smashed them onto the ground in
anger.
36. Plaintiff did not give Defendant Joseph Katkocin permission to destroy the cell phone or
digital camera nor did Defendant Joseph Katkocin have any legal justification for doing so.
37. Defendant Joseph Katkocin's actions permanently deprived and wrongfully interfered with
Plaintiff's right and use of her cell phone and digital camera.
38. The cell phone cost two hundred sixty nine dollars and ninety nine cents ($269.99) and the
digital camera cost five hundred sixty nine dollars and ninety nine cents ($569.99).
WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter Judgment in
her favor and against Defendants in the amount of eight hundred sixty six dollars and ninety
eight cents ($866.98), together with interest, costs of suit, and any other damages this Court
deems appropriate.
COUNT V: BATTERY
39. Plaintiff incorporates by reference paragraphs 1 through 38 as if set forth in full.
40. Plaintiff pleads in the alternative to COUNT IV in the event this Honorable Court does not
find a claim for conversion exists in paragraphs 34 through 38.
41. On 8 January 2007 Defendant Joseph Katkocin entered Plaintiff s residence and grabbed
Plaintiff's cell phone and digital camera and intentionally smashed them onto the ground in
anger.
42. Plaintiff did not give Defendant permission to destroy the camera or cell phone and
Defendant's actions resulted in the complete and total destruction of the camera and cell phone.
43. The cell phone cost two hundred sixty nine dollars and ninety nine cents ($269.99) and the
digital camera cost five hundred sixty nine dollars and ninety nine cents ($569.99).
WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter Judgment in
her favor and against Defendants in the amount of eight hundred sixty six dollars and ninety
eight cents ($866.98), together with interest, costs of suit, and any other damages this Court
deems appropriate.
WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter Judgment
in her favor and against Defendants for a total amount of sixty six thousand seventeen dollars
and fifty three cents ($66,017.53), together with interest, costs of suit, and any other damages
this Court deems appropriate.
By.,
Jonathan W. Crisp, Esquire
Attorney ID No.: 83505
3601 Vartan Way
Harrisburg, Pennsylvania 17110
Ph: 717-909-8227
Fax: 717-657-0263
VALLERY CLOUSE,
: IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION
PLAINTIFF
VS.
JOSEPH KATKOCIN, and
JOSEPH KATKOCIN DB/A
KATKO Incorporated, and
JOSEPH KATKOCIN DB/A/
JJK Ventures, Incorporated
DEFENDANTS
CIVIL TERM
No.: 07-6285
JURY TRIAL DEMANDED
VERIFICATION
The undersigned hereby verifies that all statements were provided by Vallery Clouse and
are true and correct to the best of my knowledge, information and belief. I hereby acknowledge
that the facts set forth in the aforesaid Complaint are made subject to the penalties of 18 Pa.C.S.
§4904 relating to unsworn falsification to authorities.
Dated: `i o7 7? 'tmts?Q?
Jonath . Crisp, Attorney for the Plaintiff
VALLERY CLOUSE,
PLAINTIFF
VS.
JOSEPH KATKOCIN, and
JOSEPH KATKOCIN DB/A
KATKO Incorporated, and
JOSEPH KATKOCIN DB/A/
JJK Ventures, Incorporated
DEFENDANTS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION
CIVIL TERM
No.: 07-6285
JURY TRIAL DEMANDED
VERIFICATION
The undersigned hereby verifies that all statements were provided by Vallery Clouse and
are true and correct to the best of my knowledge, information and belief. I hereby acknowledge
that the facts set forth in the aforesaid Complaint are made subject to the penalties of 18 Pa.C.S.
§4904 relating to unworn falsification to authorities.
Dated: 9 o7
Jonath . Crisp, Attorney for the Plaintiff
VALLERY CLOUSE,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION
PLAINTIFF
VS.
JOSEPH KATKOCIN, and
JOSEPH KATKOCIN DB/A
KATKO Incorporated, and
JOSEPH KATKOCIN DB/A/
JJK Ventures, Incorporated
DEFENDANTS
: CIVIL TERM
: No.: 07-6285
: JURY TRIAL DEMANDED
VERIFICATION
The above Complaint is based upon information which I have furnished to my counsel
and information which has been gathered by my counsel in preparation of this matter. The
language of the Complaint is that of counsel and not of mine. I have read the Complaint and to
the extent that the Complaint is based upon information which I have given to my counsel, it is
true and correct to the best of my knowledge, information and belief. To the extent that the
content of the Complaint is that of counsel, I have relied upon counsel in making this
verification. We hereby acknowledge that the facts set forth in the aforesaid Complaint are made
subject to the penalties of 18 Pa.C.S. §4904 relating to unworn falsification to authorities.
DATE: 9
1141,111-
VALLERY CLOUSE
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' Vallery Clouse,
Plaintiff
V.
Joseph Katkocin, and
Joseph Katkocin d/b/a
Katko Incorporated, and
j Joseph Katkocin d/b/a
JJK Ventures, Incorporated,
Defendants
TO: Plaintiff, Vallery Clouse
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 07 - 6285 CIVIL TERM
JURY TRIAL DEMANDED
NOTICE
YOU ARE HEREBY NOTIFIED TO PLEAD TO THE ENCLOSED PRELIMINARY
OBJECTIONS WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A
DEFAULT JUDGMENT MAY BE ENTERED AGAINST YOU.
Vallery Clouse,
Plaintiff
V.
Joseph Katkocin, and
Joseph Katkocin d/b/a
Katko Incorporated, and
Joseph Katkocin d/b/a
JJK Ventures, Incorporated,
Defendants
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
NO. 07 - 6285 CIVIL TERM
JURY TRIAL DEMANDED
ORDER
AND NOW, this day of , 2007, it is hereby
ORDERED that the Preliminary Objections of Defendants, Joseph Katkocin, Joseph
Katkocin d/b/a/ Katko Inc., and Joseph Katkocin d/b/a JJK Ventures, Inc., to the
Plaintiffs Amended Complaint are hereby GRANTED. Counts I, II, III and V of Plaintiff's
Amended Complaint are hereby dismissed with prejudice.
J.
Vallery Clouse,
Plaintiff
V.
Joseph Katkocin, and
Joseph Katkocin d/b/a
Katko Incorporated, and
Joseph Katkocin d/b/a
JJK Ventures, Incorporated,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
:NO. 07 - 6285 CIVIL TERM
: JURY TRIAL DEMANDED
PRELIMINARY OBJECTIONS OF DEFENDANT
AND NOW, come the Defendants, Joseph Katkocin, Joseph Katkocin d/b/a/ Katko
Inc., and Joseph Katkocin d/b/a JJK Ventures, Inc., by and through their attorneys, Turo
Law Offices, and file Preliminary Objections in the nature of a Demurrer to dismiss with
prejudice each of the following counts, and in support hereof aver as follows:
1. Plaintiff, Vallery Clouse, filed a Complaint in the Court of Common Pleas of
Cumberland County on October 26, 2007, which was served on Defendants
on October 29, 2007.
2. Defendants filed Preliminary Objections on November 19, 2007.
3. In response to Defendants' Preliminary Objections, Plaintiff filed an Amended
Complaint on December 10, 2007.
4. Plaintiffs Amended Complaint contains five counts: three counts of unjust
enrichment, one count of conversion and one count of battery.
5. Four of Plaintiff's five counts fail to state a claim, as will be discussed.
6. A fair reading of the Complaint shows that Plaintiff and Defendant were
paramours at all times relevant to the Complaint.
7. Plaintiff acknowledges that she and Defendant had a personal relationship.
8. Plaintiff is a spurned paramour of Defendant.
DEMURRER TO COUNT I: UNJUST ENRICHMENT
9. Paragraphs 1 through 8 are included herein as if fully set forth.
10. In Count I, Plaintiff fails to state a claim for which she can be awarded relief
and Defendants demur to Plaintiff's claim.
11. The Amended Complaint in Count I asserts that Defendants were unjustly
enriched by Plaintiffs labor and monies in assistance to improve Defendant's
property at 4 Souder Court.
12. Defendants deny Plaintiff performed any labor or supplied any monies as
stated, and further denies the existence of any expectation of reimbursement
and remuneration.
13. While Defendant denies Plaintiff provided the labor and monies as she
contends, even if she did, Plaintiff is not entitled to the relief requested.
14. Plaintiff carefully omits the context of the purchase and work on 4 Souder
Court, where Defendant and Plaintiff initially went into together to purchase 4
Souder Court and 6 Souder Court, with Defendant to purchase the former lot
as a "spec" house and Plaintiff to purchase the latter lot for her custom home.
15. Furthermore, even if Plaintiff conducted any assistance, which Defendant
denies, such voluntary assistance was not with any expectation of
remuneration and was in keeping with the parties' paramour relationship, as
was Defendant's parallel voluntary assistance with Plaintiff's real estate work
without payment, including enormous improvements made by Defendants to
Plaintiffs real estate project at 6 Souder Court without payment by Plaintiff.
16. Defendants put significant time, money, and labor into Plaintiff's real estate
project at 6 Souder Court, without any payment from Plaintiff, before she
backed out of the deal.
17. While Defendant acknowledges receipt from Plaintiff of $11,000.00 as
mentioned in paragraph 12 of the Amended Coplaint, and while some of that
money may have been used for improvement of 4 Souder Court, this
disbursement was payment in full for the $11,000.00 invoice issued by
Defendant to Plaintiff on November 29, 2006, for strictly professional services
provided by Defendant, for which Plaintiff duly received full benefit, and for
which Plaintiff formally invoiced Defendant for payment. (Said invoice is
attached as Exhibit "A" and incorporated herein as if fully set forth.)
18. The simple fact that the Defendant may have benefited as a result of the
actions of the Plaintiff is not sufficient to sustain a claim for unjust enrichment;
Plaintiffs enrichment of the Defendant must be unjust. Styler v. Hugo, 422
Pa. Super. 262, 610 A.2d 347, 350 (Pa. Super. 1993). (A copy of Styler v.
Hugo, 422 Pa. Super. 262, 610 A.2d 347, 350 (Pa. Super. 1993) is attached
hereto as Exhibit "B.")
19. Plaintiffs enrichment of Defendant was not unjust, as it was in keeping with
the parties' relationship with the reciprocal benefits and enrichment Plaintiff
also received from Defendant.
WHEREFORE, for all the above reasons, this Honorable Court is requested to
dismiss Count I of the Amended Complaint with prejudice.
DEMURRER TO COUNT I1: UNJUST ENRICHMENT
20. Paragraphs 1 through 8 are included herein as if fully set forth.
21. In Count II, Plaintiff fails to state a claim for unjust enrichment for which she
can be awarded relief and Defendant demurs to Plaintiffs claim.
22. The Amended Complaint in Count II asserts that Defendant was unjustly
enriched by Plaintiff's service as an "employee" at Defendant's bar and by
Plaintiffs supposed $1,200.00 grocery expenditure for said bar.
23. Plaintiff, Defendant's paramour, was a steady guest and patron at
Defendant's bar and never an "employee." Plaintiff may have infrequently
"helped out," but such voluntary assistance was without agreement and
without any expectation of remuneration. This was in keeping with the
parties' paramour relationship, as was Defendant's parallel voluntary
assistance with Plaintiff's real estate work without payment.
24. Plaintiff also accepted from Defendant a significant amount of free food and
drinks at Defendant's bar for Plaintiff and Plaintiffs friends, for which Plaintiff
received a benefit far over any reasonable payment which she claims due for
her meager services.
25. While Defendant acknowledges Plaintiff may have assisted in purchasing
groceries for his bar, Defendant avers that Plaintiff has been repaid entirely
for her expenditures, which were far less than $1,200.00; Plaintiff has
received accord and satisfaction for her grocery expenditures.
26. The simple fact that the Defendant may have benefited as a result of the
actions of the Plaintiff is not sufficient to sustain a claim for unjust enrichment;
Plaintiff's enrichment of the Defendant must be unjust. Styler v. Hugo, 422
Pa. Super. 262, 610 A.2d 347, 350 (Pa. Super. 1993). (A copy of Styler v.
Hugo, 422 Pa. Super. 262, 610 A.2d 347, 350 (Pa. Super. 1993) is attached
hereto as Exhibit "B.")
27. Plaintiff's enrichment of Defendant was not unjust, as it was in keeping with
the parties' paramour relationship with the reciprocal benefits and enrichment
Plaintiff also received from Defendant; furthermore, as to the groceries in
particular, Defendant has repaid Plaintiff in full.
WHEREFORE, for all the above reasons, this Honorable Court is requested to
dismiss Count II of the Amended Complaint with prejudice.
DEMURRER TO COUNT III: UNJUST ENRICHMENT
28. Paragraphs 1 through 8 are included herein as if fully set forth.
29. In Count III, Plaintiff fails to state a claim for unjust enrichment for which she
can be awarded relief and Defendant demurs to Plaintiff's claim.
30. The Amended Complaint in Count III asserts that Defendant was unjustly
enriched by Plaintiff when Defendant "resided" with Plaintiff without payments
and for attending counseling sessions for which Defendant avers she paid in
the entirety.
31. Said counseling sessions were scheduled at Plaintiffs demand and for
problems Plaintiff had created in the parties' relationship by having
simultaneous, illicit relations with another man, and Defendant did not attend
all nine sessions because he received no benefit from them.
32. Defendant attended three sessions and paid for all of them in their entirety,
after which the parties agreed that Defendant would no longer continue.
Plaintiffs decision to continue attending alone thereafter was her own choice
and Defendant received no benefit from those sessions, nor did he agree to
pay for them.
33. Defendant never actually "resided" in Plaintiffs home, which was less than
one-and-a-half blocks from Defendant's own residence, which he has
maintained as his residence throughout, for which he paid and continues to
pay cost such as utilities, maintenance, etc. Defendant did no more than stay
overnight at Plaintiffs home, as a response to Plaintiff's stringent demand that
he do so. Plaintiff previously had left Defendant for another man, for the
stated reason that Plaintiff refused to move in with Defendant.
However, Defendant never actually "moved in," and simply came over
to sleep at Plaintiffs residence after work, and to get up in the morning and
return to work. Furthermore, Defendant never actually resided with Plaintiff
because he was not allowed to move his belongings into Plaintiff's home even
if he had wanted to do so. Plaintiff takes direction, in a "guru" fashion, from a
local woman named Paula, from whom Plaintiff found it necessary to hide the
fact that a man was staying at her home. As a result, Plaintiff never allowed
Defendant to actually "reside" at the home, but merely to spend the night.
Defendant always maintained his own residence, for which he paid all of the
requisite costs, for the entire duration of the parties' relationship.
Moreover, Defendant's sleeping overnight at Plaintiffs home, however
frequently, was in keeping with the parties' paramour relationship, as were the
numerous nights that Plaintiff stayed at Defendant's house without paying for
rent, utilities, or maintenance. Plaintiff was thus duly enriched by Defendant.
34. The simple fact that the Defendant may have benefited as a result of the
actions of the Plaintiff is not sufficient to sustain a claim for unjust enrichment;
Plaintiffs enrichment of the Defendant must be unjust. Styler v. Hugo, 422
Pa. Super. 262, 610 A.2d 347, 350 (Pa. Super. 1993). (A copy of Styler v.
Hugo, 422 Pa. Super. 262, 610 A.2d 347, 350 (Pa. Super. 1993) is attached
hereto as Exhibit "B.")
35. Plaintiffs enrichment of Defendant was not unjust, as it was in keeping with
the parties' paramour relationship with the reciprocal benefits and enrichment
Plaintiff also received from Defendant.
WHEREFORE, for all the above reasons, this Court is requested to dismiss Count III
of the Amended Complaint with prejudice.
DEMURRER TO COUNT V: BATTERY
36. Paragraphs 1 through 8 are included herein as if fully set forth.
37. In Count V, Plaintiff fails to state a claim for battery for which she can be
awarded relief and Defendant demurs to Plaintiffs claim.
38. The Amended Complaint in Count V asserts that Defendant carried out a
battery when he "grabbed" Plaintiffs cell phone and digital camera and
"intentionally smashed them onto the ground in anger."
39. Plaintiff fails to state a claim for battery, only that Defendant damaged the two
stated articles of property; battery requires some sort of offensive touching
related to the Plaintiffs person, which Plaintiff does not aver.
WHEREFORE, for all the above reasons, this Honorable Court is requested to
dismiss Count V of the Amended Complaint with prejudice.
WHEREFORE, for all the above reasons, Defendants respectfully request this
Honorable Court to dismiss Counts I, II, III and V of Plaintiffs Amended Complaint with
prejudice.
steed,
/9 167
Date
Lon "nn ew S er, Esq.
Turo L s
28 Sou Street
Carlisle, PA
Attorney for Defendants
VERIFICATION
I, Lorin A. Snyder, Esquire, counsel for the Defendants in this matter, do hereby
depose and state that the statements contained in the foregoing Preliminary Objections
are true and correct to the best of my knowledge, information and belief, as provided by
Defendant Joseph Katkocin. I understand that false statements herein are made
subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to
authorities.
t 2 /-1 9 th7
Date
CERTIFICATE OF SERVICE
I hereby certify that I served a true and correct copy of the Preliminary Objections
of Defendants to Amended Complaint on Jonathan W. Crisp, Esq., by depositing the
0-
same in the United States Mail, first class, on the day of December, 2007, from
Carlisle, Pennsylvania, addressed as follows:
Jonathan W. Crisp, Esq.
3601 Vartan Way
Harrisburg, PA 17110
W
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LorW5-9688; es q.
Car(71X 717.245.2165
Attorney for Defendants
C?? IEtf.
-5
VALLERY CLOUSE,
PLAINTIFF
VS.
JOSEPH KATKOCIN, and
JOSEPH KATKOCIN DB/A
KATKO Incorporated, and
JOSEPH KATKOCIN DB/A/
JJK Ventures, Incorporated
DEFENDANTS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION
CIVIL TERM
No.: 07-6285
TYPE OF PLEADING
Plaintiffs Preliminary Objection
to Defendants' Preliminary
Objections Responsive Pleading
Filed on behalf of
Plaintiff
Counsel of Record for this Party:
Jonathan W. Crisp, Esquire
Attorney ID No.: 83505
3601 Vartan Way
Harrisburg, Pennsylvania 17110
Ph: 717-909-8227
Fax: 717-657-0263
Jonathan W. Crisp, Esquire
ID# 83505
3601 Vartan Way
Harrisburg, PA 17110
Telephone: 717-909-8227
Facsimile: 717-657-0263
icrisp i crislleeal corn
Attorney for Plaintiff
VALLERY CLOUSE,
PLAINTIFF
VS.
JOSEPH KATKOCIN, and
JOSEPH KATKOCIN DB/A
KATKO Incorporated, and
JOSEPH KATKOCIN DB/A/
JJK Ventures, Incorporated
DEFENDANTS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION
CIVIL TERM
No.: 07-6285
PRELIMINARY OBJECTION AND REPLY OF PLAINTIFF
AND NOW comes Plaintiff, by and through her attorney, Jonathan W. Crisp, Esquire,
and in response to Defendants' Preliminary Objections files a Preliminary Objection in the form
of a motion to strike and also files a reply and in support thereof avers as follows:
1. Plaintiff filed a Complaint in the Court of Common Pleas of Cumberland County on 26
October 2007 and served that Complaint on Defendants on 29 October 2007.
2. Defendants filed Preliminary Objections to Plaintiff s Complaint on 19 November 2007 and
in response thereto, Plaintiff filed an Amended Complaint against Defendants on 10 December
2007.
3. On 19 December 2007 Defendants filed Preliminary Objections in response to Plaintiff's
Amended Complaint.
4. Defendants allege in their Preliminary Objections (POs) at various paragraphs that Plaintiff
and Defendant Joseph Katkocin were "paramours" at all times relevant to the Complaint, that
Plaintiff is a "spurned paramour" of Defendant Joseph Katkocin, that they engaged in a
"paramour relationship," that Plaintiff had "simultaneous, illicit relations with another man" and
that "Plaintiff takes direction, in a `guru' fashion from a local woman named Paula."
5. Defendants further assert demurrers to four (4) of five (5) Counts of Plaintiff's Complaint.
6. Pursuant to Pa.R.Civ.Pro. 1029(b), Defendants admit Plaintiff's averments in Count IV of her
Complaint because Defendants failed to answer or address the averments and requests this
Honorable Court enter judgment in her favor and against Defendants in the amount of eight
hundred sixty six dollars and ninety eight cents ($866.98), together with interest, costs of suit,
and any other damages this Court deems appropriate.
PRELIMINARY OBJECTION
7. Paragraphs 1-6 are hereby incorporated by reference as if fully set forth herein.
8. Plaintiff requests this Honorable Court strike the scandalous and impertinent matter contained
in Defendants' POs in paragraphs 6, 8, 23, 27, 31, 33 and 35.
9. "Scandalous matters consists of any unnecessary allegation which bears cruelly on the moral
character of an individual or states anything which is contrary [*6] to good manners or anything
that is unbecoming of the dignity of the court to hear." Epstein v. Fatzinger, 45 Pa. D. & C.3d 1,
4 (1987) (internal citation omitted).
10. A paramour is defined as an illicit lover. See The American College Dictionary.
Defendants' repeated reference to Plaintiff as a "paramour" or "spurned paramour" can only be
viewed as an attempt to cast Plaintiff in a negative light; characterizing Plaintiff as a paramour is
unnecessary, factually incorrect and not relevant to the disposition of the case at bar.
11. Defendants' reference to the personal relationship between Defendant Joseph Katkocin and
Plaintiff as a paramour relationship coupled with a libelous reference to Plaintiff s alleged illicit
relationship with another man simultaneously further supports Plaintiff's contention that
Defendants are only attempting to besmirch Plaintiff's moral character. There was never
anything illicit or illegal about Defendant Katkocin and Plaintiff's personal relationship, nor do
Defendants' posit such evidence.
12. Finally, Defendants' reference to the nature and manner of Plaintiff's friendship with "a
local woman" can only be seen as impertinent. Inclusion of such information and the
characterization of the friendship as "guru like" is also not relevant to the disposition to the case
at bar.
WHEREFORE, Plaintiff respectfully requests this Honorable Court strike the scandalous
and impertinent matter contained in Defendants' POs in paragraphs 6, 8, 23, 27, 31, 33 and 35.
REPLY TO DEFENDANTS' PRELIMINARY OBJECTIONS
13. Paragraphs 1-12 are hereby incorporated by reference as if fully set forth herein.
14. Paragraphs 1-4 of Defendants' POs are admitted.
15. Paragraph 5 of Defendants' POs is denied as a conclusion of law.
16. Paragraph 6 of Defendants' POs is denied as discussed above. Defendant Katkocin and
Plaintiff maintained an intimate personal relationship, which was neither illicit nor adulterous.
17. Paragraph 7 of Defendants' POs is admitted.
18. Paragraph 8 of Defendants' POs is denied for the reasons discussed above.
19. No answer is required to paragraph 9 of Defendants' POs.
20. Paragraph 10 of Defendants' POs is denied as a conclusion of law.
21. Paragraph 11 of Defendants' POs is admitted.
22. Paragraph 12 of Defendants' POs does not require an answer. Denials of factual assertions
in Plaintiff's Complaint are not relevant to demurrers challenging the legal insufficiency of a
complaint and are more appropriately deemed an answer and denial.
23. Paragraph 13 of Defendants' POs does not require an answer. Denials of factual assertions
in Plaintiff's Complaint are not relevant to demurrers challenging the legal insufficiency of a
complaint and are more appropriately deemed an answer and denial.
24. Paragraph 14 of Defendants' POs is admitted in part and denied in part. It is admitted that
Defendants and Plaintiff initially intended to purchase 4 Souder Court as a "spec" house and 6
Souder Court as a personal residence, respectively. However, it is denied that Plaintiff ever
purchased either lot; Defendants purchased both lots.
25. Paragraph 15 of Defendants' POs is denied to the extent it implies Plaintiff owned 6 Souder
Court when Defendants, at all times relevant to this Complaint, owned 6 Souder Court.
26. Paragraph 16 of Defendants' POs is admitted in part and denied in part. It is admitted that
Plaintiff did not pay Defendants for any work performed at 6 Souder Court. It is denied that
Plaintiff ever had an ownership interest in said property that would necessitate payment. After a
reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief
as to the remaining allegations contained in Paragraph 16 and therefore denies same and demand
strict proof at the time of trial.
27. Paragraph 17 of Defendants' POs is denied in part and no response is required for the
remainder. Plaintiff specifically denies that the $11,000.00 check Plaintiff gave Defendants on
or about 26 June 2007 was in payment for the invoice Defendant issued Plaintiff. Plaintiff paid
Defendants for any work referenced on the invoice well prior to 26 June 2007. In addition,
Plaintiff denies she has received full benefit for all work referenced on the invoice. Defendants
failed to complete significant amounts of work referenced therein and remains incomplete.
28. Paragraph 18 of Defendants' POs is denied as a conclusion of law.
29. Paragraph 19 of Defendants' POs does not require an answer. Denials of factual assertions
in Plaintiff's Complaint are not relevant to demurrers challenging the legal insufficiency of a
complaint and are more appropriately deemed an answer and denial.
30. Paragraph 20 of Defendants' POs does not require an answer.
31. Paragraph 21 of Defendants' POs is a conclusion of law for which no answer is required.
32. Paragraph 22 of Defendants' POs is admitted.
33. Paragraph 23 of Defendants' POs is denied as stated. Plaintiff's presence at Defendants' bar
was by request of Defendants and Plaintiff acted in the manner of an employee when present.
34. Paragraph 24 of Defendants' POs is denied as stated. Plaintiff did not consume food at
Defendants' bar and Plaintiff's daughter and daughter's friend only ate there once. No other
friends or family members consumed drinks or food at Defendants' bar gratis.
35. The first clause of Paragraph 25 of Defendants' POs does not require an answer because
denials of factual assertions in Plaintiff's Complaint are not relevant to demurrers challenging
the legal insufficiency of a complaint and are more appropriately deemed an answer and denial;
the second clause is denied as a conclusion of law.
36. Paragraph 26 of Defendants' POs is denied as a conclusion of law.
37. Paragraph 27 of Defendants' POs does not require an answer. Denials of factual assertions
in Plaintiff's Complaint are not relevant to demurrers challenging the legal insufficiency of a
complaint and are more appropriately deemed an answer and denial.
38. Paragraph 28 of Defendants' POs does not require an answer.
39. Paragraph 29 of Defendants' POs is denied as a conclusion of law.
40. Paragraph 30 of Defendants' POs is denied as stated. Defendants' incorrectly summarize
Plaintiffs Count III. Plaintiff admits Defendant Katkocin paid for three (3)of twelve (12)
counseling sessions.
41. Paragraph 31 of Defendants' POs is admitted in part and denied in part. Plaintiff admits she
scheduled the counseling sessions. Plaintiff asserts the remaining allegations do not require an
answer or in the alternative lacks knowledge or information sufficient to form a belief as to the
allegations contained therein.
42. Paragraph 32 of Defendants' POs is admitted in part and denied in part. Plaintiff admits
Defendants paid for three (3) counseling sessions, but denies the parties agreed Defendant
Katkocin would no longer attend the sessions, denies he only attended three (3) sessions and
asserts he agreed to continue to split the cost.
43. Paragraph 33 of Defendants' POs does not require an answer. Denials of factual assertions
in Plaintiff's Complaint are not relevant to demurrers challenging the legal insufficiency of a
complaint and are more appropriately deemed an answer and denial.
44. Paragraph 34 of Defendants' POs is denied as a conclusion of law.
45. Paragraph 35 of Defendants' POs does not require an answer. Denials of factual assertions
in Plaintiff's Complaint are not relevant to demurrers challenging the legal insufficiency of a
complaint and are more appropriately deemed an answer and denial.
46. Paragraph 36 of Defendants' POs does not require an answer.
47. Paragraph 37 of Defendants' POs is denied as a conclusion of law.
48. Paragraph 38 of Defendants' POs is admitted.
49. Paragraph 39 of Defendants' POs is denied as a conclusion of law.
Date()
Respectfully submitted,
Harrisburg, PA 17110
Attorney for Defendant
j t an W. Crisp, Esq.
360 Vartan Way
VERIFICATION
The undersigned hereby verifies that all statements contained in the foregoing
preliminary objection and answer are true and accurate to the best of my knowledge, information
and belief. I hereby acknowledge that the facts set forth in the aforesaid Complaint are made
subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities.
Dated: o
Jon W. Crisp, Attorney for the Plaintiff
CERTIFICATE OF SERVICE
I, JONATHAN W. CRISP, ESQ. attorney for the Defendant in the above described
action hereby certify that on January 10, 2008, a stamped copy of Plaintiff's Preliminary
Objection and Responsive Pleading to Defendants Preliminary Objections were mailed to
counsel for the Plaintiffs, Lorin Snyder, Esq., at 28 South Pitt Street, Carlisle, PA 17013.
JONAT CRISP, ESQ.
By
Jonathan W. Crisp, Esquire
Attorney ID No.: 83505
3601 Vartan Way
Harrisburg, Pennsylvania 17110
Ph: 717-909-8227
Fax: 717-657-0263
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VALLERY CLOUSE,
PLAINTIFF
vs.
JOSEPH KATKOCIN, and
JOSEPH KATKOCIN DB/A
KATKO Incorporated, and
JOSEPH KATKOCIN DB/A/
JJK Ventures, Incorporated
DEFENDANTS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION
CIVIL TERM
: No.: 07-6285
:-. CD
STATEMENT OF INTENTION TO PROCEED
TO THE COURT:
Plaintiffs intend to proceed with the above captioned matter.
October 21, 2011
Jonathan W. Crisp
Atty. Id No. 83505
3540 N Progress Ave, STE 207
Harrisburg, PA 17110
Ph (717) 412-4676
Fx (717) 412-4679
David (D. Buel
Prothonotary
Office o` f the Prothonotary
Cum6erfancf County, (Pennsylvania
7�rkS. Sohonage, ESQ
Solicitor
7 10a,S CIVIL TERM
ORDER OF TERMINATION OF COURT CASES
AND NOW THIS 28TH DAY OF OCTOBER, 2014, AFTER MAILING NOTICE OF
INTENTION TO PROCEED AND RECEIVING NO RESPONSE —THE ABOVE
CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH
PA R.C.P.230.2.
BY THE COURT,
DAVID D. BUELL
PROTHONOTARY
One Courthouse Square ® Suite100 ® CarCs e, TA 0(1 hone 717 240-6195 0 'FaK 717 240-6573