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HomeMy WebLinkAbout03-5529CAREYCORP, INC. d/b/a CAREY ASSOCIATES ACCOUNTING AND TAX SERVICES, Plaintiff VS. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO, 63 -56 d / THE ZOE LIFE ENRICHMENT FOUNDATION, INC. and ROCHELLE GRAHAM, Individually and in her capacity: CIVIL ACTION - LAW as President/Executive Director of The Zoe Life Enrichment Foundation, Inc., Defendant NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint 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 32 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 CAREYCORP, INC. d/b/a CAREY ASSOCIATES ACCOUNTING AND TAX SERVICES, Plaintiff VS. THE ZOE LIFE ENRICHMENT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. ??'S?S aZq FOUNDATION, INC. and ROCHELLE . GRAHAM, Individually and in her capacity: CIVIL ACTION - LAW as President/Executive Director of The Zoe Life Enrichment Foundation, Inc., Defendant COMPLAINT AND NOW, comes CareyCorp, Inc., doing business as Carey Associates Accounting and Tax Services, by and through its counsel, Kline Law Office, which files this Complaint and in support thereof states as follows: 1. Plaintiff is CareyCorp, Inc., a Pennsylvania corporation with its principal place of business located at 542 Bridge Street, New Cumberland, Cumberland County, Pennsylvania 17070. CareyCorp, Inc. provides accounting and tax services under the name Carey Associates. Brian H. Carey is the president of CareyCorp, Inc.. 2. The Zoe Life Enrichment Foundation, Inc. ("Zoe") is a Pennsylvania non-stock, non-profit corporation with its registered address located at 116 Yellow Breeches Drive, Camp Hill, Pennsylvania 17011 (Fairview Township, York County). Rochelle Graham is the President and Executive Director of said corporation. 3. Rochelle Graham ("Graham") is an adult individual residing at 116 Yellow Breeches Drive, Camp Hill, Pennsylvania 17011 (Fairview Township, York County). At all times relevant to this Complaint, Rochelle Graham acted as President and Executive Director of The Zoe Life Enrichment Foundation, Inc.. COUNTI 4. Plaintiff provided tax and accounting services to Defendant Zoe until May 22, 2003. 5. Plaintiff provided direct deposit payroll services to Defendant Zoe through February 2003. 6. Defendant Zoe has failed to pay to Plaintiff the fees due for the tax and accounting and direct deposit payroll services provided to Defendant Zoe. As of the date of this Complaint, the sum of $2,361.25 is due and outstanding and, despite demand, has remained unpaid by Defendant. 8. On or about February 25, 2003, Defendant Graham, in her capacity as President and Executive Director of Defendant Zoe, represented to Plaintiff that sufficient funds were available in Defendant's account at Legacy Bank for the net payroll withdrawal. 9. Relying upon the representation of Defendant Graham, President and Executive Director of Defendant Zoe, that sufficient funds were available for the direct deposit net payroll withdrawal, Plaintiff requested the transfer of such funds from Legacy Bank for the purpose of the payroll. 10. Relying upon the representations of Defendant Graham in her capacity as President and Executive Director of Defendant Zoe, Plaintiff caused the direct deposit net payroll to be processed on February 28, 2003. 11. Subsequent to the confirmation of Legacy Bank that sufficient funds were available, Plaintiff processed the direct deposit net payroll for Defendant Zoe in the amount of $10,870.16. 12. Subsequent to the processing of the direct deposit net payroll for February 28, 2003, Legacy Bank indicated that insufficient funds were available in Defendant Zoe's account and refused to honor the request for transfer to Plaintiffs direct deposit processing account. 13. As a direct result of the representations of Defendant Graham in her capacity as President and Executive Director of Defendant Zoe, Plaintiff incurred losses in the amount of $10,870.16, representing monies paid to employees of Defendant Zoe on behalf of and for the benefit of Defendant Zoe. 14. As a direct result of the representations of Defendant Graham in her capacity as President and Executive Director of Defendant Zoe, Plaintiff has incurred and will continue to incur returned check charges, negative earnings charges, and other bank-related charges, and will continue to incur such charges. As of October 10, 2003, such charges equal $2,412.21, and Plaintiff will continue to incur such charges until the balance is paid in full. 15. Defendant Graham was among the employees of Defendant Zoe who received payment pursuant to the improper direct deposit net payroll transaction. 16. Despite repeated demands, Defendant Zoe has failed to pay to Plaintiff the sums due as set forth in this Complaint. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in its favor and against Defendants in the amount of $13,270.37 plus additional bank related charges incurred through the date of judgment, together with attorneys fees, costs, and interest as this Court may allow. COUNT II 17. Rochelle Graham, individually and in her capacity as President and Executive Director of Defendant Zoe, knew or should have known that insufficient funds were available for the direct deposit net payroll withdrawal from Defendant Zoe's Legacy Bank account at such time that she authorized Plaintiff to initiate such transaction. 18. Defendant Graham received a direct benefit from her intentional misrepresentation regarding the status of the funds in the Legacy bank account in that the direct deposit net payroll which was processed included payment to her in the amount of $2,227.68. 19. Defendant Graham's actions were fraudulent and with the intent to secure payment fraudulently from Plaintiff, Legacy Bank, Fulton Bank, and the Zoe Life Enrichment Foundation. 20. Plaintiff believes, and therefore avers, that Defendant Graham's actions in misrepresenting the status of the funds in the Legacy account were intentional and designed to obtain for her the personal benefit of the receipt of the direct deposit payroll. 21. Despite full knowledge that the direct deposit payroll was improperly processed based upon her own misrepresentations, Defendant Graham, individually, has failed to reimburse Plaintiff for the funds that she improperly received. 22. Plaintiff has incurred, and will continue to incur, attorneys fees in its effort to recoup these fraudulently obtained funds. 23. Plaintiff has incurred, and will continue to incur, returned check charges, negative earnings charges, and other bank related charges as the result of the intentional actions of Defendant Graham, both in her individual capacity and in her capacity as President and Executive Director of Defendant Zoe. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in its favor and against Defendant Graham in the amount of $2,227.68, together with attorneys fees, costs, and interest as this Court may allow. Respectfully submitted, 20 OcT 2ao'S ac+ DATE ROBERT P. KLINE, ESQUIRE 714 Bridge Street Post Office Box 461 New Cumberland, PA 17070-0461 (717) 770-2540 Attorney for Plaintiff VERIFICATION I, Brian H. Carey, President of CareyCorp, Inc., d/b/a Carey Associates Accounting and Tax Services, verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unworn falsification to authorities. /6/-w 63 Date BRIAN SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2003-05529 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CAREYCORP INC DBA CAREY ASSOC VS ZOE LIFE ENRICHMENT FOUNDATION R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: ZOE LIFE ENRICHMENT FOUNDATION INC THE but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of YORK County, Pennsylvania, to serve the within COMPLAINT & NOTICE On December 29th , 2003 , this office was in receipt of the attached return from YORK Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep York County 43.68 .00 80.68 12/29/2003 ROBERT PETER KLINE Sworn and subscribed to before me this I day of L „ ,?2 U1;Y A.D. Q,/ ct ? o. h? ?eeu k7?`7 dd Prothonotary So answers -'' R. Thomas Klin Sheriff of Cumberland County SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2003-05529 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CAREYCORP INC DBA CAREY ASSOC VS ZOE LIFE ENRICHMENT FOUNDATION R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: GRAHAM ROCHELLE but was unable to locate Her deputized the sheriff of YORK serve the within COMPLAINT & NOTICE County, Pennsylvania, to On December 29th , 2003 , this office was in receipt of the attached return from YORK Sheriff's Costs Docketing 6.00 Out of County .00 Surcharge 10.00 .00 .00 16.00 12/29/2003 ROBERT PETER KLINE Sworn and subscribed to before me this day of( ,20&3 A. D. p Prothonotary in his bailiwick. He therefore So answers- R. Thomas Kline Sheriff of Cumberland County SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2003-05529 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CAREYCORP INC DBA CAREY ASSOC VS ZOE LIFE ENRICHMENT FOUNDATION R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: GRAHAM ROCHELLE AS PRES/EXEC DIR OF ZOE LIFE ENRICH FOUNDAT but was unable to locate Her deputized the sheriff of YORK in his bailiwick. He therefore serve the within COMPLAINT & NOTICE County, Pennsylvania, to on December 29th , 2003 , this office was in receipt of the attached return from YORK Sheriff's Costs Docketing 6.00 Out of County .00 Surcharge 10.00 .00 .00 16.00 12/29/2003 ROBERT PETER KLINE So answers R. ,'T'homas Kline Sheriff of Cumberland County Sworn and subscribed to before me this j a - this of, c2U?'? A. D. / Prothonotary COUNTY OF YORK 1 of OFFICE OF THE SHERIFF SERVICE CALL (717) 771.9601 28 EAST MARKET ST., YORK, PA 17401 SHERIFF SERVICE INBTRucnoNS PROCESS RECEIPT and AFFIDAVIT OF RETURN PLEASE TYPE ONLY LIFE 1 THRU 12 DO NOT DETACH ANY COPIES 1. PLAINTIFF/S/ 2. COURT NUMBER Careycorp, Inc et al 03-5529 civil 3. DEFENDANT/S/ 4. TYPE OF WRIT OR COMPLAINT The Zoe Life Enrichment Foundation et al Notice & Complaint SERVE 5. NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC. TO SERVE OR DESCRIPT10 F PROPERTY TO BE VIE ,ATTACHED, OR SOLD. The Zoe Life Enrichment Foundation Inc UFR.f" 6. ADDR?ESS RREET OR RFO WITH BOX NUMBER, APT NO., CITY, SORO, TWP., STAT AND ZIP CODE) AT Z; Yellaw Breeches C it e u,:k m2 uill, PA 17011 (Fa i rvia-:• 'Turn) , 7. INDICATE SERVICE: ? PERSONAL ? PERSON IN CHARGE ? DEPUTIZE cumed-1 IL ? 1ST CLASS MAIL J POSTED OOTHER NOW October 23 2003 I, SHERIFF OF+000NTY, PA, do hereby deputize the sheriff of York COUNTY to execute this ke return thcording to law. This deputization being made at the request and risk of the plaintiff. j5 z-"4 . ,rp SHERIFF OF C5UNTY 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE: CLItltberland ADVANCE FEE PAID BY SHERIFF"S DEPT OUT OF COUNTY -CUMBERLAND OF CUMBERLAND COUNTY 'NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction, or removal of any property before sheriffs sale thereof. 9. TYPE NAME and ADDRESS of ATTORNEY / ORIGINATOR and SIGNATURE 17070-0461 10. TELEPHONE NUMBER 11. DATE FILED Robert P. Kline Esq.'714 Bridge St. New Cumberland PA 1717-770-2540110-20-2003 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This area must be completed if notice is to be mailed). Cumberland County Sheriff PO Box 461 714 Bridqe St New Cumberland PA 17070-04 SPACE BELOW FOR USE OF THE SHERIFF - DO NOT WRITE BELOW THIS LINE 13. 1 acknowledge receipt of the writ 14. DATE RECEIVED 115. Expiration/Hearing Dale orcompleintas indicated above. Ronda M. Ahrens / RAT 10-24-2003 Q1-19-2003 16. HOW SERVED: PERSONAL( ) RESIDENCE ( ) POSTED( ) POE ( ) SHERIFF'S OFFICE( ) OTHER( ) SEE REMARKS BELOW 17>I'Q hereby certify and return a NOT FOUND because I am unable to locate the individual, company, etc. name above. (See remarks below.) 18. NAME AND TITLE OF INDIVIDUAL SERVED / LIST ADDRESS HERE IF NOT SHOWN ABOVE (Relationship to Defendant) 19. Date of Service 20. Time of Service 21. ATTEMPT?I, p ate les ? I Date Time Miles Int. I Date n 0. 22. REMARKS : Complaint not served within life. Time Miles Int. I Date Time Miles Int. I Date I I Miles Int. I Date Time Miles Int. Complaint expired. Defendant not found. 23. Advance Costs 24. Service Costs 25. N/F 26. Mileage 27. Postage 28. Sub Tote $145.00 9.00 5.oq 13.681 37.68 34. Foreign County Costs 135. Advance Costs 1 36. Service Costs 1 37. Notary Cert. 41. AFFIRMED and subscribed to before me tly 16 44. Signature of f DEC 42 da ? C 03 . y o 20 4 14 p. Sheriff ? NOT Y 466 Signature of York ?I County Sheriff James V % .any pjb c WILLIA[1 11. Q v u IC nty. G A ?My van 48. Signature of Foreign County Sheriff 50. 1 ACKNOWLEDGE RECEIPT OF THE SHERIFF'S RETURN SIGNAT URE OF AUTHORIZED ISSUING AUTHORITY AND TITLE aII??/efi?)a-l? 1 1 29. Pound 30. Notary 31. Surchg. 32. Tot. Costs 33. Costs Due V Ch Nr 16.00 I +3.68 101.32\J 02 38. Mileage/Posted/Not Found 139. Total Costs 40. Costs Due or Refund SO ANSWERS 45. DATE HOSE G,G L2?1 47. DATE 12-13-03 49. DATE 51. DATE RECEIVED 1. WHITE- Issuing Authority 2. PINK - Attorney 3. CANARY - Sheriffs office 4. BLUE - Sheriffs Office Ut, 2 Jt ? :?G 8 V m a n VXY ._,., i COUNTY OF YORK OFFICE OF THE SHERift3 S 717)7 ; CALL 28 EAST MARKET ST., YORK, PA 17401 SHERIFF SERVICE INSTRUCTIONS PLEASE TYPE ONLY LINE 1 THRU 12 PROCESS RECEIPT and AFFIDAVIT OF RETURN DO NW MACH ANY COPIES 1. PLAINTIFF/.d 2. C9RTh yL`lE civil Careycorp Inc et,,14 4. TYPE OF WRIT OR COMPLAINT 3. DEFENDANTISI The Zoe Litw-Enrichment Foundation Inc et al Notice & Complaint 6. NAME OF Ill COMPANY, CORPORATION, ETC. TO SERVE OR D IPTION OF PROPERTY T E L VIED, ATTACHED, OR SOLD. SERVE Rochell ahem, individually -/Z 6 ADDRE EET OR RFO WITH BOX NUMBER, APT. NO., CITY, BORO, P., STATE AND ZIP CODE) AT f jjdt- elloga efeei ies Drive uulrr ([ill, m i401?(Fai.LVio.7 'Iklp) 17 1ST CLASS MAIL O POSTED ? OTHER 7. INDICATE SERVICE:--U PERSONAL ? PERSON IN CHARGE v DEPUTIZE ??Tg^?d NOW October 23 , 20 0> 3 I, SHERIFF OFF COUNTY, PA, do hereby deputize the sheriff of York COUNTY to execute thiS? ?rake return t ccording to law. This deputization being made at the request and risk of the plaintiff. 1.^'-" t! SHERIFF OF COUNTY 3. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE: CLnberland ADVANCE FEE PAID BY SHERIFF'S DEPT. OUT OF COUNTY CUMBERLAND OF CUMBERLAND COUNTY NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the pan of such deputy or the sheriff to any plaintiff herein for any loss, destruction, or removal of any property before sheriffs sale thereof. 9. TYPE NAME and ADDRESS of ATTORNEY / ORIGINATOR and SIGNATURE 17070-0461 10. TELEPHONE NUMBER 11, DATE FILED Robert P. Kline, Esq. 714 Bridge ST. New Cumberland PA 717-770-2540 10-20-20 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This area must be completed if notice is to be mailed). 1 7 0 7 0 Cumberland County Sheriff's Dept. PO Box 461 714 Bridge ST New Cumberland PA SPACE BELOW FOR USE OF THE SHERIFF - DO NOT WRITE BELOW THIS LINE 13. (acknowledge receipt of the writ 14. DATE RECEIVED 15. Ex irationlHeari D or complaint as indicated above, Ronda M. Ahrens/RAT 110-24-2003 111-p19-2001 16. HOW SERVED: PERSONAL ( ) RESIDENCE( ) POSTED( ) POE ( ) SHERIFF'S OFFICE ( ) OTHER ( ) SEE REMARKS BEI 17. $?I hereby certify and return a NOT FOUND because I am unable to locate the individual, company, etc. name above. (See remarks below.) N E AND TITLE OF INDIVIDUAL SERVED I LIST ADDRESS HERE IF NOT SHOWN ABOVE (Relationship to Defendant) 119. Date of Service 120. Time of Servia I )IL I Date I Time I Miles I Int. I Date I Time I Miles Int. I Date I Time I Miles f Int. Date I Time I Miles I Int. I Date I Time I Miles 21. ATTEMPTS?1T31 I1% 22. REMARKS: ,F_*M\ I! Complaint not served within life. Complaint expired. Defendant not found. 23. Advance Costs 1 24. SeM65 Codtis ) t 46. N/F 126. Mileage 127. Postage1 28. Sub Total 29. Pound 130. Notary + 131. Surchg. 132, Tot. Costs 1 33. Costs Due or Refund IC 34. Foreign County Coats 1 35. Advance Costs 1 36. Service Costs I 137. Notary Cart, 138. MileagelPostedlNot Found 139. Total Costs 140. Costs Due or Rei 18 SOANSWERS 41. AFFIRMED and subscribed to before me this 42. day of DEC 20Q3 (/ vi, q 44 SegnSherof P?tla!!r / NO RY 46. Signature of York --- County Sheriff ""?'a seal James V. AP r e .I 3 y Fuo'r, c 11ILLIAM M. ^ity cf : ,)o e. ' j 48. Signature of Foreign MY JJCommissio . cspN .. :_1. 2C13 County Sheriff 50.1 AC IvO?cv3FVMetIPT`OP THE 31 IERIrP3 RETURN SIGNATURE OF AUTHORIZEDI$SUING AUTHORITY AND TITLE 45. DATE / 47. DATE HOSE ?rIC?Y" 12-18 49. DATE 151. DATE RECEIVED 1. WHITE - Issuing AOihority 2. PINK - Attomay 3. CANARY - Sheriffs Office 4. BLUE - SherttrS Office COUNTY OF YORK 3 of 3 oVFICESOFETTHEPSHERIFF SERVICE CALL YORK, 17401 (717) 771-9601 .4 1. 28 ST --' '? INSTRUCTIONS FF SERVICE nd A"U"T OF RETURN OO NOT DETACH ANY (PIES iZ 2. CObI&T t?UPM16?R civil YeyCOrp Inc et al 4 TYPE OF WRIT OR COMPLAINT The Zoe Life Enrichment Foundation Inc et al Notice & Complaint 5. NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC. TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED, ATTACHED, OR SOLD. Rochelle Grahw as pres/exec director of Zoe Life Enric t Foundnda 'on Inch e. ADORE TF;EET OR RFO WITH BOX NUMBER, APL NO., CITY, BORO, TWP., STATE AND 21P CODE] H. CCC Ye eec 7017. -1 7. INDICATE SERVICE: U PERSONAL D PERSON IN CHARGE n DEPUTIZE h roj41)1TKd O 1ST CLASS MAIL STED DOTHER NOW October 23 2003 I, SHERIFF OF IM COUNTY, PA, do hereby depufte the sheriff c York COUNTY to execute ? ke return th fcording to law. This deputization being made at the request and risk of the plaintiff. SHERIFF OF it, SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE: C=berland OUT OF COUNTYCUMBER ADVANCE FEE PAID BY SHERIFF'S DEPT OF CUMBERLAND COUNTY NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sherd) levying upon or attaching any property under within writ may lea; without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any herein for any loss, destruction, or removal of any property before sheriffs sale thereof. 9, TYPE NAME and ADDRESS of ATTORNEY; ORIGINATOR and SIGNATURE 10. TELEPHONE NUMBER 11. DATE 1717-770-2540 114-el 17070 Cumberland Count Sheriff Dept. POBox 461 714 Bridge St. New Cumberland P WALE W"Wi FOR USE OF THE SHERIFF - DO NOT WRITE BELOW THIS LINE. 13. 1 admawledge receipt of the writ 14. DATE RECEIVED 16. Expiratic or complaint as indicated above. Ronda M. Ahrens ) RAT `1D-24-2003 ?11-19• 18, HOW SERVED: PERSONAL { ) RESIDENCE ( ) POSTED( ) POE ( } SHERIFFS OFFICE ( ) OTHER {) SEE RE • •u'..^ 1 .. •:..\': •.:r;:,.:,.::.... he individual, company, etc. name above. (See ramants below.) , t.' iT SHOWN ABOVE (Relationship to Defendant) 19. Date of Service 20. T A•': ;, t•:%v : ... r,+: ?r: ., : to time Miles Int. Date Time Miles Int. Date Time Miles Int. Oate : - -- f! 13ra-3,L :..:,.. °..L_. (I { I I (1 (l l I Robert P. Kline, Esq. 714 Bridge St. New Cumberland PA 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This area must be completed if notice is to be mailed). Complaint riot served within tike.- Complaint expired. Defendant not found. . h. e, E/ A '•'• :v6:•',e :;,•;:.; . L. Sarv-:r. Gast! ? "r ti ?' ..:' ij% ...,:Age ? 28. Sub Tota :N. Fun-ion County Costs an-.... . . ? : . Notary Carl . ;• ,:. dR..F pr::.; ,:, ' ......... ._. ` :... ............. ..;.• 7•.^..,_. i.::..•,_ ...: :. , Inature of t!! ..i.d..._. '•.:. P, -° : 0 o. Sheriff •, •.{; Inature of York .. . .,, .' mty Sheriff iELIAM M. d!inature of Poreign •mty Sheriff 1 ( 29. Pound l 30. Notary 1 31. Sumhg. r2. Tot. Costs1 33. Coe 38. MlleagelPostedlNot Found f 39. Total Costs 1 40 $0 ANSWERS HOSE ?...' e? 51. DATE :.;..•'::, . _. >.r,...v.+........ .: ".". ..' ., ' ." 8 4. BLUE - Sheriffs Office t . -I v 3 ?zt t? 5 ? CS a Y 7a lop .4 5, ilookN E M-0, .,g 1 1 a?+ 161 ? j9?t 1' ref s ?r srP'"?g t • .. 'lI'...F° yy j -1 4.1 y' i'4a s ?: 4 ? 511. itj .P- .w1?? '? 1 X51 z zf ?J1 t .I lul yt? ? x ?' - T/ ?C Ft .sy r ?i AT 1 v 3 4 J l l\ RF W? ?, COUNTY OF YORK 3 of 3 OFFICE OF THE SHERIFF S 717)'77; 9 01 28 EAST MARKET ST., YORK, PA 17401 SHERIFF SERVICE I INSTRUCTIONS PROCESS RECEIPT and AFFIDAVIT OF RETURN PLEASE TYPE ONLY LINE 1 THRU 12 DO NOT DETACH ANY COPIES 1. PLAINTIFF/S/ 2. COURT N11b18ER Civil Careycorp Inc et al 4. TYPE OF WRIT OR COMPLAINT 3. DEFENDANT/S/ The Zoe Life Enrichment Foundation Inc et al Notice & Con-plaint SERVE 5. NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC. TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED, ATTACHED, OR SOLD Rochelle Graham as pres/exec director of Zoe Life Enric t Founndda 'on Inch 6. ADDRE TREET OR RFO WITH BOX NUMBER, APT NO., CITY, BORO, TAR, STATE AND ZIP CODE) AT 4 Ye$ieec 701 Z_'^ ;ew 7. INDICATE SERVICE: ? PERSONAL -1 PERSON IN CHARGE ? DEPUTIZE l'?rSI?P1h4^RIl,n(3 L11ST CLASS MAIL --"POSTED JOTHER NOW October 23 2003 I, SHERIFF OF COUNTY, PA, do hereby deputize the sheriff of vork COUNTY to execute tbike returnrding to law. This deputization being made at the request and risk of the plaintiff. SHERIFF OF 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE: CLmlberland ADVANCE FEE PAID BY SHERIFF'S DEPT OF CUMBERLAND COUNTY OUT OF COUNTYCUMBERLAND NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction, or removal of any property before sheriffs sale thereof. 9. TYPE NAME and ADDRESS of ATTORNEY/ ORIGINATOR and SIGNATURE 10. TELEPHONE NUMBER 11. DATE FILED Robert P. Kline, Esq. 714 Bridge St. New Cumberland PA 717-770-2540 I10-20-200 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW. (This area must be completed if notice is to be mailed). 17070 Cumberland County Sheriff's Dept. POBox 461 714 Bridge St. New Cumberland PA SPACE BELOW FOR USE OF THE SHERIFF - DO NOT WRITE BELOW THIS LINE 13. 1 acknowledge receipt of the writ 14. DATE RECEIVED 15 Expiration/Hearing Date or complaint as indicated above. Ronda M. Ahrens / RAT 10-24-2003 11-19-2003 16. MHOOW SERVED: PERSONAL( ) RESIDENCE ( ) POSTED( ) POE( ) SHERIFF'S OFFICE ( ) OTHER( ) SEE REMARKS BELOV 17. q? 1 hereby certify and return a NOT FOUND because I am unable to locate the individual, company, etc, name above. (See remarks below.) 18. AME AND TITLE OF INDIVIDUAL SERVED / LIST ADDRESS HERE IF NOT SHOWN ABOVE (Relationship to Defendant) 1 19. Date of Service 1 20. Time of Service 21. ATTEMPT$I Date I T1'I? Miles I Inp I Date I Time I Miles Int. I Date I Time I Miles Int. I Date I Time Miles I Int. I Date I Time I Miles I Int. I Date I Time I Miles I In 22. REMARKS: F1? Complaint not served within life. Complaint expired. Defendant not found. 23. Advance Costs 24. Service Costs 25, WF .1'26. Mileage 27. Postage 28. Sub Total 129. Pound 30. Notary 31. Surchg. 32. Tot. Costs 33. Costs Due or Refund ICheck 34. Foreign County Costs 135. Advance Costs 1 36. Service Costs f 37. Notary Cert. 138. Mileage/Posted/Not Found 139. Total Costs 140. Costs Due or Refund 41. AFFIRMED and subscribed to before me this 1 , l 44 Signature of 42. day of DEC 20 X31 gwwdp 'i1 v ? Sheriff PRdTMY - / NOTA Y 466. . Signature of York County Sheriff t;3 WILLIAM M. -??-'ty 48. Signature of Foreign M" 2-C County Sheriff 50. 1 ACKNOWLEDGE RECEIP I OF I HE SHERIFF '5 Ht I URN SIGNATURE OF AUTHORIZED ISSUING AUTHORITY AND TITLE 45. DATE 47. DATE HOSE 12-18-03 49. DATE 51. DATE RECEIVED SO ANSWERS 1. WHITE- Issuing Authority 2. PINK-Attorney 3. CANARY - Sheriffs Office 4. BLUE - Sheriffs Office nd _' r4V __. ,._...__ EwVz130 ddlaaNs d0 3304-40 C13AG03H In the Court of Common Pleas of Cumberland County, Pennsylvania VS. No. ?'- 5 5 2_ TY>c zue 1 1 ?E rIV Q1C`?YK?-tS Civil. 19 To 1al-r1_1 Prothonotary 19 Attorney for Plaintiff C mj?-: L? C'Df--O VS. In the Court of Common Pleas of Cumberland County, Pennsylvania No. C1Z ^ 5 52-9 Civil. 19 }?L?= 6?1e-t?rFf?= ?- cau-?n?Pnr?T F?z? ,rl -THE 6)c3jvE - caosl mute To Prothonotary 19 Attorney for Plaintiff ' oc; Z " PILCV 'Of i'. O -PHE P°-,; 4J ed T.,?y, No. Term. 19 2094 OCT -8 AN 8: 00 4-V vs. PRAECIPE 19 Atty. West Long LLC 105 North Front Street Suite 205 Harrisburg, PA 17101 (717) 233-5051 CAREYCORP, INC. d/b/a CAREY ASSOCIATES ACCOUNTING AND TAX SERVICES Plaintiff vs. THE ZOE LIFE ENRICHMENT FOUNDATION, INC. And ROCHELLE GRAHAM, Individually and in her capacity as President/Executive Director of The Zoe Life Enrichment Foundation, Inc. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO: 03-5529 CIVIL ACTION - LAW DEFENDANT ROCHELLE GRAHAM'S PRELIMINARY OBJECTIONS TO COMPLAINT COMES NOW, Defendant, Rochelle Graham, and, pursuant to Pennsylvania Rule of Civil Procedure 1028, raises the following preliminary objections to the Complaint of Plaintiff, Careycorp, Inc., d/b/a/ Carey Associates Accounting and Tax Services. PRELIMINARY OBJECTION NO. 1 INSUFFICIENT SPECIFICITY IN A PLEADING (Pa. R.C.P. §1028 (a)(3)) 1. Plaintiff has failed to plead with sufficient specificity its claim of intentional misrepresentation against Defendant Graham in Counts 1 and 2 of the Complaint. 2. Plaintiff's Complaint alleges that Defendant Graham committed intentional misrepresentation with respect to the status of certain bank account funds in an account at Legacy Bank. The Complaint states, in pertinent part, as follows: "On or about February 25, 2003, Defendant Graham, in her capacity as President and Executive Director of Defendant Zoe, represented to Plaintiff that sufficient funds were available in Defendant's account at Legacy Bank for the net payroll withdrawal." (Complaint ¶ 8) "Relying upon the representation of Defendant Graham, President and Executive Director of Defendant Zoe, that sufficient funds were available for the direct deposit net payroll withdrawal, Plaintiff requested the transfer of such funds from Legacy Bank for the purpose of the payroll." (Complaint 19) "Relying upon the representations of Defendant Graham in her capacity as President and Executive Director of Defendant Zoe, Plaintiff caused the direct deposit net payroll to be processed on February 28, 2003." (Complaint ¶ 10) "Subsequent to the confirmation of Legacy Bank that sufficient funds were available, Plaintiff processed the direct deposit net payroll for Defendant Zoe in the amount of $10,870.16." (Complaint ¶ 11) "Subsequent to the processing of the direct deposit net payroll for February 28, 2003, Legacy Bank indicated that insufficient funds were available in Defendant Zoe's account and refused to honor the request for transfer to Plaintiff's direct deposit processing account." (Complaint ¶ 12) "Rochelle Graham, individually and in her capacity as President and Executive Director of Defendant Zoe, knew or should have know that insufficient funds were available for the direct deposit net payroll withdrawal from Defendant Zoe's Legacy Bank account at such time that she authorized Plaintiff to initiate such transaction." (Complaint ¶ 17) "Defendant Graham received a direct benefit from her intentional misrepresentation regarding the status of the funds in the Legacy bank account in that the direct deposit net payroll which was processed included payment to her in the amount of $2,227.68." (Complaint ¶ 18) "Defendant Graham's actions were fraudulent and with the intent to secure payment fraudulently from Plaintiff, Legacy Bank, Fulton Bank, and the Zoe Life Enrichment Foundation." (Complaint ¶ 19) 2 4. Plaintiff seeks an amount of $13, 270.37 plus additional bank related charges, together with attorneys' fees, costs and interest in Count 1. In Count 2, Plaintiff seeks an amount of $2, 227.68 together with attorneys' fees, costs and interests against Defendant Graham. 5. According to the Complaint, at all times relevant to the Complaint, Defendant Graham was acting as President and Executive Director of the Zoe Life Enrichment Foundation, Inc. (Complaint $ 3) 6. According to the Complaint, Zoe Life Enrichment Foundation, Inc. is a Pennsylvania non-stock, non-profit corporation. (Complaint $ 2) 7. According to the Complaint, the Plaintiff provided tax and accounting services to the Defendant Zoe Life Enrichment until May 22, 2003, and provided direct deposit payroll services to Defendant Zoe Life Enrichment through February 2003. (Complaint $ 4 and $5) 8. The Complaint alleges that Defendant Graham made intentional misrepresentations to and committed fraud against Plaintiff. 9. It is well established that: Allegations of fraud must be pled with specificity. Pa.R.C.P. 1019(b); Muhammad v. Strassburger, McKenna, Messer, Shilobod and Gutnick, 526 Pa. 541, 587 A.2d 1346 (1991). The reason for this requirement was articulated by the Supreme Court in Bata v. Central-Penn National Bank of Philadelphia, 423 Pa. 373, 224 A.2d 174 (1966). Averments of fraud are meaningless epithets unless sufficient facts are set forth which will permit an inference that the claim is not without foundation nor offered simply to harass the opposing party and to delay the pleader's own obligations. For this reason our rules require that fraud in either a complaint or reply must be "averred with particularity." Pa.R.C.P. 1019(b). Admittedly the line between pleading facts and evidence is not always bright; therefore, we frequently condone the inclusion of statements, which except for this requirement, would be considered impertinent.... While it is impossible to establish precise standards as to the degree of particularity required in a given situation, two conditions must always be met. The pleadings must adequately explain the nature of the claim to the opposing party so as to permit him to prepare a defense and they must be sufficient to convince the court that the averments are not merely subterfuge. Id. at 379- 80, 224 A.2d at 179. Kane v. Douglas, 67 Pa. D. & C. 4th 336, 343, 2004 Pa. D. & C. LEXIS 75 (C.P. Lancaster Co. 2004). 10, In this case, Plaintiff has failed to plead its claim of intentional misrepresentation with sufficient specificity. At most, Plaintiff claims that Defendant Graham "represented to Plaintiff' that sufficient funds were available in Defendant's account at Legacy Bank for the net payroll withdrawal. Plaintiff fails to identify how or to whom the alleged representation was made by Defendant Graham. 11. Further, Plaintiff has failed to sufficiently plead whether the representation was made by Defendant Graham in person, by phone, in writing or otherwise. Moreover, Plaintiff fails to specify whether the alleged representation was singular or multiple representations. For example, while in Paragraph 9 of the Complaint, the Plaintiff avers a single representation, in Paragraphs 10, 13, 14 and 21, Plaintiff alleges misrepresentations in the plural. Also, Plaintiff alleges Defendant Graham's "actions in misrepresenting" the status of the funds without specifying the specific actions taken by her. 12. Plaintiff's unspecific allegations of misrepresentations on the part of Defendant Graham are "meaningless epitaphs unless sufficient facts are set forth which will permit an 4 inference that the claim is not without foundation or offered simply to harass the opposing party and to the delay the pleader's own obligations." Id. at 343. 13. Since Plaintiff has failed to plead with sufficient specificity the fraud/intentional misrepresentation claim, Plaintiff cannot make claim against Ms. Graham, a former non-profit corporate officer, that she is personally liable for the alleged monetary damages. 14. It is well established that: "[A] corporate officer may be personally liable for damages suffered by a third party where he knowingly participates in the wrongful act. Chester- Cambridge Bank and Trust Company v. Rhodes, 346 Pa. 427, 31 A.2d 128 (1943); Shay v. Flight C Helicopter Services Inc., 2003 PA Super 86, 822 A.2d 1 (Pa. Super. 2003). The general, if not universal, rule is that an officer of a corporation who takes part in the commission of a tort by the corporation is personally liable therefor; but that an officer of a corporation who takes no part in the commission of the tort committed by the corporation is not personally liable to third persons for such a tort, nor for the acts of other agents, officers or employees of the corporation in committing it, unless he specifically directed the particular act to be done or participated, or cooperated therein." Wicks v. Milzoco Builders, Inc., 503 Pa. 614, 621-22, 470 A. 2d 86, 90 (1983)." Kane, 67 Pa. D. & C. 4th at 344-45. 15. Therefore, in light of the fact that Plaintiff has failed to plead intentional misrepresentation and fraud with sufficient specificity, Plaintiff has failed to plead a cause of action against Defendant Graham. PRELIMINARY OBJECTION NO.2 LEGAL INSUFFICIENCY OF A PLEADING (DEMUR) (PA. R. C. P. 1028(a)(4)) 16. Defendant Graham restates and incorporates herein paragraphs 1 through 15 of these Preliminary Objections. 5 17. As noted above, in order to establish a cause of action for fraud or intentional misrepresentation, a plaintiff must establish that the alleged injury was proximately caused by the plaintiff's reliance on the alleged misrepresentation. 18. Here, Plaintiff has failed to allege facts, which if true, would establish that Plaintiff's alleged injury was proximately caused by the reliance on anything said or done by Defendant Graham. 19. To the contrary, according to the Complaint, it is clear that the Plaintiff processed the direct deposit net payroll which resulted in the transfer of $10,870.16, only after Plaintiff confirmed with Legacy Bank that sufficient funds were available in that account. (See Complaint ¶ 11) 20. While Plaintiff alleges that unspecified representations were made by Defendant Graham, it was only "[s]ubsequent to the confirmation of Legacy Bank that sufficient funds were available" that Plaintiff then "processed the direct deposit net payroll for Defendant Zoe in the amount of $10,870.16." (See Complaint ¶11) 21. Therefore, even assuming, for argument sake, that Defendant Graham made the alleged misrepresentation to Plaintiff, Plaintiff's reliance on that alleged misrepresentation was not the proximate cause of the alleged loss of money. 22. Instead, by the Complaint's own averment, it was not until Plaintiff relied upon the "confirmation of Legacy Bank that sufficient funds were available", that Plaintiff then processed the direct deposit net payroll, which ultimately led to the alleged loss of funds. 6 23. Indeed, then, it was Plaintiff's reliance on Legacy Bank's confirmation, and not on Defendant Graham's alleged misrepresentation, that resulted in any monetary loss suffered by Plaintiff. WHEREFORE, the Preliminary Objections of Defendant Rochelle Graham should be sustained and the Complaint should be dismissed in its entirety with prejudice as to her. Respectfully Submitted, WEST LONG LLC Robert R. Long, Jr. PA #39302 105 North Front Street, J*te 205 Harrisburg, PA 17101 (717) 233-5051 (717) 234-7517 - fax Dated: November 15, 2004 Counsel for Defendant, Rochelle Graham 7 VEJUY"TION I, Rochelle Graham, hereby verify that the facts set forth in the foregoing Preliminary Objections are true and corrxt to the best of my knowledge, information and belief r understand that this verification is made subject to the penalties of 18 Pa. C.S. §4904 relating to unworn falsification to authorities. Date, //// 0 ? 64-k - - "I CERTIFICATE OF SERVICE I hereby certify that on this 15th day of November, 2004, a true and correct copy of the foregoing Preliminary Objections was served upon the party named below by depositing same in the United States Mail, Certified, Return Receipt Requested and addressed as follows: Robert P. Kline, Esquire 714 Bridge Street Post Office Box 461 New Cumberland, PA 17070-0461 Trula G. Gross Paralegal 2 -st fli .. 1 d... r Z M SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2003-05529 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CAREYCORP INC DBA CAREY ASSOC VS ZOE LIFE ENRICHMENT FOUNDATION R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT GRAHAM ROCHELLE but was unable to locate Her deputized the sheriff of DAUPHIN to wit: in his bailiwick. He therefore serve the within COMPLAINT & NOTICE County, Pennsylvania, to On October 22nd , 2004 , this office was in receipt of the attached return from DAUPH Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep Dauphin Cc 32.25 .00 69.25 10/22/2004 ROBERT PETER KLINE So answers: Thomas Kline Sheriff of Cumberland County Sworn and subscribed to before me this day of A.D. Prothonotary' SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2003-05529 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CAREYCORP INC DBA CAREY ASSOC VS ZOE LIFE ENRICHMENT FOUNDAT R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: GRAHAM ROCHELLE AS PRES/EXEC DIR OF ZOE LIFE ENRICH FOUNDAT but was unable to locate Her in his bailiwick. He therefore deputized the sheriff of DAUPHIN County, Pennsylvania, to serve the within COMPLAINT & NOTICE On October 22nd , 2004 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: Docketing 6.00 Out of County DO Surcharge 10.00 .00 .00 16.00 10/22/2004 ROBERT PETER KLINE So answers R. Thomas Kline Sheriff of Cumberland County Sworn and subscribed to before me this J day of oZ ae,)- A. D. ?y f?l Prothonotary In The Court of Common Pleas of Cumberland County, Pennsylvania careycorp Inc dba Carey Associates Accounting & Tax Services vs. The Zoe Life Enrichrent Foundation et al SERVE: Rochelle Graham, as president/exec No. 03-5529 civil director of The Zoe Life Enrichment Foundation Now, October 11, 2004 I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Now, within upon at by handing to a and made known to o'clock copy of the original So answers, Sworn and subscribed before inc this _ day of 20 Affidavit of Service 20at+ Sheriff of COSTS SERVICE MILEAGE _ AFFIDAVIT M. served the the contents thereof. County, PA In The Court of Common Pleas of Cumberland County, Pennsylvania Careycorp Inc dba Carey Associates Accounting & Tax Services vs. The Zoe Life Enrichment Foundation et al SERVE: Rochelle Graham, individually No. 03-5529 civil Now, October 11, 2004 I. SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, within upon _ at by handing to _ a and made known to So answers, Sheriff of Sworn and subscribed before me this ; day of 20 20 , at o'clock M. served the copy of the original COSTS SERVICE - MILEAGE AFFIDAVIT the contents thereof. County, PA of 14P ?s4rr-ff Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph:(717)255-2660 fm:(717)255-2889 Jack Lotwick Sheriff Commonwealth of Pennsylvania County of Dauphin CAREYCORP INC vs GRAHAM ROCHELLE Sheriff's Return No. 6752-T - - -2004 OTHER COUNTY NO. 03 5529 J. Daniel Basile Chief Deputy Michael W. Rinehart Assistant Chief Deputy NOW:October 18, 2004 at 9:42AM served the within COMPLAINT upon GRAHAM ROCHELLE PRES/EXEC DIRECTOR OF by personally handing THE ZOE LIFE ENRICHMENT FOUNDATION INC to DEFENDANT 1 true attested copy(ies) of the original COMPLAINT and making known to him/her the contents thereof at DJ MARSHA STEWART'S OFFICE 1520 WALNUT STREET HARRISBURG, PA 17103-0000 Sworn and subscribed to before me this 19TH day of OCTOBER, 2004 V NOTARIAL SEAL MARY JANE SNYDER, Notary Public Highspire, Dauphin County My Commission Expires Sept. 1, 2006 So Answers, ?,%? t? Sheriff of Dauphin County, Pa. B t Y 3462L Deputy Sher' f Sheriff's Costs:$32.25 PD 10/18/2004 RCPT NO 200586 RH (offs k a e o Extff Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph:(717)255-2660 fax:(717)255-2889 Jack Lotwick Sheriff Commonwealth of Pennsylvania County of Dauphin CAREYCORP INC vs • GRAHAM ROCHELLE Sheriff's Return No. 6752-T - - -2004 OTHER COUNTY NO. 03 5529 J. Daniel Basile Chief Deputy Michael W. Rinehart Assistant Chief Deputy AND NOW:October 18, 2004 at 9:42AM served the within COMPLAINT upon GRAHAM ROCHELLE by personally handing SERVE @ HEARING ON OCTOBER 18TH, 9:00 AM to DEFENDANT 1 true attested copy(ies) of the original COMPLAINT and making known to him/her the contents thereof at ® DJ MARSHA STEWART'S OFFICE 1520 WALNUT STREET HARRISBURG, PA 17103-0000 Sworn and subscribed to before me this 19TH day of OCTOBER, 2004 NOTARIAL SEAL MARY JANE SNYDER, Notary Public Highspire, Dauphin County My Commission Expires Sept. 1, 2006 So Answers, ,;; Sheriff of Dauphin County, Pa. By C? ..,. 1 Deputy Sheri Sheriff's Costs:$32.25 PD 10/18/2004 RCPT NO 200586 RH C_P - CAP _Iac vs Case No. 0 3 i7 S 2n Statement of Intention to Proceed To the Court: C ,t?f , 4A C. o proceed wi ove captioned matter. Print Name )??, CdLs` Fu-?ra £ Sign Name _____ _ Date: cam]" Z Attorney for I le ,_AA -1 Explanatory Comment The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit comment. 1. Rule of civil Procedure New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting local rules. This rule was promulgated in response to the decision of the Supreme Court in Shop v. Eagle, 551 Pa. 360,710 A.2d 1104 (1998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901." Rule of Judicial Administration 1901(b) has been amended to accommodate the new rule of civil procedure. The general policy of the prompt disposition of matters set forth in subdivision (a) of that rule continues to be applicable. II Inactive Cases The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system. The process is initiated by the court. After giving notice of intent to terminate an action for inactivity, the course of the procedure is with the parties. If the parties do not wish to pursue the case, they will take no action and "the Prothonotary shall enter an order as of course terminating the matter with prejudice for failure to prosecute." If a party wishes to pursue the matter, e or she will file a notice of intention to proceed and the action shall continue. a. Where the action has been terminated If the action is terminated when a party believes that it should not have been terminated, that party may proceed under Rule230(d) for relief from the order of termination. An example of such an occurrence might be the termination of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file the notice of intention to proceed. The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of the entry of the order of termination on the docket, subdivision (d)(2) provides that the court must grant the petition and reinstate the action. If the petition is filed later than the thirty-day period, subdivision (d)(3) requires that the plaintiff must make a show in to the court that the petition was promptly filed and that there is a reasonable explanation or legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of termination on the docket and for the failure to file the petition within the thirty-day period under subdivision (d)(2). B. Where the action has not been terminated An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a common law non pros which exits independently of termination under Rule 230.2. ?.,, ?., .? ``- - c:?. ?? .__, ? s ? . - ? T ? _,, ? ? j ,t s __ .. ??.;.. ?' ?... -?:-: , _ N _ ? ?7 ?;? - e; =G ,