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HomeMy WebLinkAbout08-5231 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MICHAEL COSTELLO, Plaintiff v. DOGWOOD ACRES CAMPGROUND, INC., CHARLES STRUB AND LUCILLE STRUB, Defendants No. pe-? 5:131 c N; 1 -1 u A IN LAW AND IN EQUITY NOTICE TO DEFEND 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 AN 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 THE TELEPHONE OR THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 14800-990-9108 717-249-3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MICHAEL COSTELLO, Plaintiff V. DOGWOOD ACRES CAMPGROUND, INC., CHARLES STRUB AND LUCILLE STRUB, Defendants COMPLAINT No. o0r, r.z 3 c ,,ve 14 e-r,r. IN LAW AND IN EQUITY 1. Plaintiff Michael Costello resides at 494 Brick Church Road, Newville, PA 17241 and is the owner of 133 1/3 shares of the common stock of Defendant Corporation. 2. Defendant Dogwood Acres Campground, Inc., is a corporation organized under the laws of the Commonwealth of Pennsylvania and has its principal office located at 4505 Enola Road, Newville, Cumberland County, Pennsylvania 17241. 3. There are issued and outstanding a total of 400 shares of the common stock of Defendant Corporation, which is the stock entitled to vote at an election of directors. 4. Defendant Charles Strub has an address of 4505 Enola Road, Newville, Cumberland County, Pennsylvania 17241 and is the owner of 133 1/3 shares of the common stock of Defendant Corporation and is a director of said Corporation. 5. Defendant Lucille Strub has an address of 4505 Enola Road, Newville, Cumberland County, Pennsylvania 17241 and is the owner of 133 1/3 shares of the common stock of Defendant Corporation and is a director of said Corporation. 6. The purpose for which the Corporation was organized was as a campground. 7. The total amount of Defendant Corporations authorized capital common stock is $74,000.00, and the amount of its capital stock issued and outstanding is $74,000.00. 8. Defendant Corporation has two directors, Defendants Charles Strub and Lucille Strub, which Defendants voted Plaintiff off the Corporations Board of Directors. 9. The acts of the directors are illegal and oppressive and it is beneficial to the interests of the shareholders that the corporation be wound up and dissolved for the following reasons: a) Defendants Charles and Lucille Strub, as directors of Defendant Corporation, voted Plaintiff off the Board of Directors. b) Defendants Charles and Lucille Strub removed Plaintiff as President of Defendant Corporation. c) Defendants Charles and Lucille Strub have refused to inform Plaintiff of the operations and records of Defendant Corporation for the past year despite demands by Plaintiff. d) Defendants Charles and Lucille Strub have locked Plaintiff out of the business premises and have refused to give him access to said business premises despite demands for access by Plaintiff. e) Defendants Charles and Lucille Strub have refused to permit Plaintiff to participate in any manner in the running of said Corporation despite the fact that Plaintiff owns 33 1/3 % of the corporate stock. 10. Plaintiff brings this Complaint to dissolve Defendant Corporation pursuant to the provisions of Title 15 Pa. C.S.A. § 1981(a)(1). 11. Defendant Corporation is, at present, entirely solvent and wholly able to pay all of its obligations in due course. 12. Defendants Charles and Lucille Struts' conduct towards Plaintiff, as set forth in Paragraph 9 of this Complaint, is malicious, obdurate and vexatious justifying the awarding of punitive damages to Plaintiff. WHEREFORE, for all the foregoing reasons, Plaintiff Michael Costello, requests this Honorable Court to: a) Issue a final order dissolving Defendant Dogwood Acres Campground, Inc., and b) Order punitive damages in favor of Plaintiff against Defendants Charles and Lucille Strub for their malicious, obdurate and vexatious conduct toward Plaintiff, as aforesaid. September 2, 2008 Ell.- bl- Peter B. Foster, Esquire Attorney for Plaintiff Pinskey & Foster 114 South Street Harrisburg, PA 17101 717-234-9321 I.D. #15357 VERIFICATION I hereby verify that the facts set forth in the foregoing Complaint are true and correct to the best of my information, knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, unworn falsification to authorities. /I/7 September 2, 2008 Michael Costello w C' ,C ?Ct1= v, Q " tJ - cn -t - 77 } f! c y FARLESUients\12943 Strab\12943.1.pra MICHAEL COSTELLO, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. DOGWOOD ACRES CAMPGROUND, INC., CHARLES STRUB and LUCILLE STRUB, Defendants To the Prothonotary: NO. 08-5231 CIVIL TERM IN LAW AND IN EQUITY PRAECIPE Please enter the appearance of MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, as attorneys for the Defendants in the above-referenced matter. Date: 1'zxla F MARTSON LAW OFFICES By: Christopher E. Rice, Esquire I.D. No. 90916 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendants 1 CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Praecipe served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Peter B. Foster, Esquire PINSKEY & FOSTER 114 South Street Harrisburg, PA 17101 MARTSON LAW OFFICES LA)?10 By - _ IJ44q M. Price Ten ast High Street Carlisle, PA 17013 (717) 243-3341 Date: 7/,2? ?/pcf f ?` SHERIFF'S RETURN - REGULAR ASE NO: 2008-05231 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND COSTELLO MICHAEL VS DOGWOOD ACRES CAMPGROUNG ET AL JACOB BAKER Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - EQUITY was served upon STRUB CHARLES DEFENDANT the at 1512:00 HOURS, on the 9th day of September, 2008 at CUMBERLAND CO SHERIFF'S OFFICE ONE COURTHOUSE SQUARE CARLISLE, PA 17013 by handing to CHARLES STRUB a true and attested copy of COMPLAINT - EQUITY together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: So Answers: Docketing 18.00 Service 11.00 Postage .59 Surcharge 10.00 R. Thomas Kline .00 1a/63/68 ? 39.59 09/10/2008 PETER FOSTER Sworn and Subscibed to By: &" & " before me this day D put S eriff of A.D. ASE NO: 2008-05231 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND COSTELLO MICHAEL VS DOGWOOD ACRES CAMPGROUNG ET AL JACOB BAKER Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - EQUITY was served upon STRUB LUCILLE DEFENDANT the , at 1512:00 HOURS, on the 9th day of September, 2008 at CUMBERLAND CO SHERIFF'S OFFICE ONE COURTHOUSE SQUARE CARLISLE, PA 1701 LUCILLE STRUB by handing to a true and attested copy of COMPLAINT - EQUITY together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 to/a?bf ,/ 16.00 Sworn and Subscibed to before me this day So Answers: R. Thomas Kline 09/10/2008 PETER FOSTER By. Deputy Sheriff of A. D. FARLES\Clients\12943 Stmb\12943.1.ms Christopher E. Rice, Esquire I.D. No. 90916 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES Ten East High Street Carlisle, PA 17013 717-243-3341 Attorneys for Defendants MICHAEL COSTELLO, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. DOGWOOD ACRES CAMPGROUND, INC., CHARLES STRUB and LUCILLE STRUB, Defendants NO. 08-5231 CIVIL TERM IN LAW AND IN EQUITY DEFENDANTS' ANSWER WITH NEW MATTER AND COUNTERCLAIM TO PLAINTIFF'S COMPLAINT TO: MICHAEL COSTELLO, Plaintiff, and his attorney, PETER B. FOSTER, ESQUIRE YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. 1. Admitted. 2. Admitted in part. The actual address is 4500 Enola Road. 3. Admitted. 4. Admitted in part. The actual address is 4504 Enola Road. 5. Admitted in part. The actual address is 4504 Enola Road. 6. Admitted. 7. Denied. Defendants deny this allegation as they are unable to confirm the accuracy of the statement. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph. Said averments therefore are denied and strict proof thereof is demanded at trial. 8. Admitted in part and denied in part. Plaintiff is a member of the Board of Directors, but was removed as President as of October 2007. During an emergency meeting, the Board of Directors voted to remove Plaintiff as President because he abandoned the business and all responsibilities associated thereto as of August 2007. 9. Denied as conclusions of law. a. Denied. By way of further response, please refer to answer number 8. b. Admitted. C. Denied. Defendants Charles and Lucille have provide information as requested by Plaintiff. d. Denied. Defendants Charles and Lucille have not locked Plaintiff out of the business premises. During a certain period of time, Plaintiff actually had a key to access the premises. By way of further response, Plaintiff has failed to return to the premises and voluntarily abandoned the business. e. Denied. Defendants Charles and Lucille have provided Plaintiff with notice of all meetings; however, Defendants Charles and Lucille have recently obtained information that Plaintiff had relocated and did not provide his current address to Defendants Charles and Lucille. By way of further response, Plaintiff voluntarily abandoned the business as of August 25, 2007. 10. Denied as a conclusion of law. 11. Denied as a conclusion of law. 12. Denied as a conclusion of law. By way of further response, Plaintiff abandoned the business and his duties as a shareholder. WHEREFORE, Defendants request that this Honorable Court deny Plaintiff's relief with prejudice and award Defendants attorney fees and costs of suit for defense of this matter. NEW MATTER 13. Defendants incorporate paragraphsl through 12 of their Answer as if fully set forth herein. 14. On or about August 25, 2007, Plaintiff informed Defendants Charles and Lucille that he was no longer interested in operating the business. 15. Thereafter, Defendants Charles and Lucille attempted to contact Plaintiff to discuss his decision to leave the business, but Plaintiff was not interested in discussing the same. 16. Defendants Charles and Lucille were forced to take time off of work and ask family members to volunteer to keep the business running since Plaintiff, without notice, withdrew from the business and his responsibilities thereunder. 17. Defendants Charles and Lucille had no choice but to remove Plaintiff as president of Defendant Corporation. 18. Plaintiff breached his fiduciary duty as a shareholder and President by withdrawing from the business and failing to fulfill his duties without notice and with the intent to start his own campground. WHEREFORE, Defendants request that this Honorable Court deny Plaintiff's relief with prejudice and award Defendants attorney fees and costs of suit for defense of this matter. COUNTERCLAIM 19. Defendants incorporate paragraphs) through 18 of their Answer as if fully set forth herein. 20. As a result of Plaintiff abandoning the business, Defendant Charles had to leave his full time job the following year resulting in a loss of income for Defendant Charles and a greater financial burden on Defendant Dogwood. 21. As a result of Plaintiff abandoning the business, Defendant Lucille had to take a two week emergency leave from her permanent teaching position and reimburse the school district for medical insurance. 22. Plaintiff's actions jeopardized the business and placed additional burdens on the Defendants. WHEREFORE, Defendants request that this Honorable Court award Defendants damages that were incurred as a result of Plaintiff's actions, including costs of suit, fees, and any other relief it deems appropriate. MARTSON LAW OFFICES By: 0"?4 ?- tc? Christopher E. Rice, Esquire I.D. No. 90916 10 East High Street Carlisle, PA 17013 y' (717) 243-3341 Date: S-- 7 - ! Attorneys for Defendants V VERIFICATION The foregoing Answer with New Matter and Counterclaim is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of the document is that of counsel and not my own. I have read the document and to the extent that it 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 document is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities, which provides that if I make knowingly false averments, I may be subject to criminal penalties. C" Charles Strub CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Answer with New Matter and Counterclaim was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Peter B. Foster, Esquire PINSKEY & FOSTER 114 South Street Harrisburg, PA 17101 MARTSON LAW OFFICES By M M. Price T East High Street Carlisle, PA 17013 (717) 243-3341 Dated: j l7h 7 FILED-{. cRCE OF THE OF 1! ?L 2009 MAY -7 FM 3: 14 CUM : ????dTY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MICHAEL COSTELLO, NO. 08-5231 Plaintiff CIVIL TERM v. DOGWOOD ACRES CAMPGROUND, INC., CHARLES STRUB and LUCILLE STRUB, Defendants PLAINTIFF'S REPLY TO NEW MATTER, ANSWER TO COUNTERCLAIM, AND NEW MATTER TO COUNTERCLAIM REPLY TO NEW MATTER AND NOW, this 2nd day of June, 2009, comes Plaintiff Michael Costello, by his attorney, Peter B. Foster, Esquire, and replies to Defendants' New Matter, as follows: 13. Admitted. 14. Denied. It is denied that on or about August 25, 2007, Plaintiff informed Defendants Charles and Lucille Strub that he was no longer interested in operating the business. On the contrary, on or about August 25, 2007, Plaintiff informed the Strubs that he was no longer interested in working as day manager of Dogwood Acres because the Strubs were controlling all the financial aspects of the business without consulting Plaintiff and the Strubs refused to sell him his ex-wife's shares in Dogwood Acres, as promised. 15. Denied. It is denied that Defendant Charles and Lucille Strub attempted to contact Plaintiff to discuss his decision to leave the business, but Plaintiff was not interested in discussing the same. On the contrary, Defendants Charles and Lucille Strub asked Plaintiff to sign a waiver to have attorney Jim Hughes act as attorney for the business before any discussion about Plaintiff leaving as day manager would be discussed. Plaintiff refused because he believed there was a conflict of interest. Plaintiff was, then, asked to resign by said Defendants at a November, 2007, emergency Board Meeting. Plaintiff refused to resign and, then, he was voted out as President by said Defendants at said emergency Board Meeting. 16. Denied. It is denied that Defendants Charles and Lucille Strub were forced to take time off of work and ask family member to volunteer to keep the business running since Plaintiff, without notice, withdrew from the business and his responsibilities thereunder. On the contrary, Plaintiff did not withdraw from the business and his responsibilities; he simply notified the Strubs that he was no longer interested in working as day manager for the business and, then, the Strubs voted Plaintiff out of his position as President. Further, Plaintiff has no knowledge of the Strubs taking time off from work and asking family members to volunteer to keep the business running and strict proof thereof is demanded at trial. 17. Denied. It is denied that Defendants Charles and Lucille Strub had no choice but to remove Plaintiff as President of Defendant Corporation. On the contrary, the Strubs voted Plaintiff out as President of the Corporation of their own volition. 18. Denied. It is denied that Plaintiff breached his fiduciary duty as a shareholder and President by withdrawing from the business and failing to fulfill his duties without notice and with the intent to start his own campground. On the contrary, Plaintiff did not withdraw from the business. He merely notified the Strubs that he was no longer interested in working as day manager of the business and, then, the Strubs voted him out of his position as President of the Corporation. Consequently, Plaintiff did not breach any fiduciary as President of and shareholder in the Corporation. Further, Plaintiff never intended to start his own campground and never notified anyone that he intended to start his own campground. WHEREFORE, for all the foregoing reasons, Plaintiff Michael Costello respectfully requests this Honorable Court to dismiss Defendants' New Matter ANSWER TO COUNTERCLAIM AND NOW, this 2nd day of June, 2009, comes Plaintiff Michael Costello, by his attorney, Peter B. Foster, Esquire, and answers Defendants' Counterclaim as follows: 19. Admitted. 20. Denied. Denied that Plaintiff abandoned the business for the reasons stated in Plaintiff's Reply to New Matter, which averments are incorporated herein by reference as if fully set forth at length herein. Further, Plaintiff has no knowledge of Charles Strub leaving his full time job the following year resulting in a loss of income for Charles Strub and a greater financial burden on Defendant Dogwood Acres and strict proof thereof is demanded at trial. 21. Denied. Denied that Plaintiff abandoned the business for the reasons stated in Plaintiff's Reply to New Matter, which averments are incorporated herein by reference as if fully set forth at length herein. Further, Plaintiff has no knowledge of Defendant Lucille Strub taking a two week emergency leave from her permanent teaching position and reimbursing the school district for medical insurance and strict proof thereof is demanded at trial. 22. Denied. Denied because said averments state conclusions of law to which no responsive pleading is required. Furthermore, Plaintiff took no actions that jeopardized the business and placed additional burdens on the Defendants. PLAINTIFF'S NEW MATTER TO COUNTERCLAIM 23. At the time the Strubs purchased Plaintiffs wife's shares in said Corporation, Defendant Charles Strub promised Plaintiff that the Strubs would sell said shares to Plaintiff when Plaintiff's divorce became final, but the Strubs reneged on said proxruse. WHEREFORE, for all the foregoing reasons, Plaintiff Michael Costello respectfully requests this Honorable Court to dismiss Defendants' Counterclaim. June 2, 2009 Peter B. Foster, Esquire Attorney for Plaintiff 114 South Street Harrisburg, PA 17101 717-234-9321 I.D. #15357 it. VERIFICATION I, Michael Costello, hereby verify that the facts set forth in the foregoing Reply to New Matter, Answer to Counterclaim and New Matter to Counterclaim are true and correct to the best of my information, knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, unsworn falsification to authorities. June 2, 2009 4ichael Costello f . CERTIFICATE OF SERVICE I hereby certify that on this date, June 2, 2009, I served a copy of the foregoing Reply to New Matter, Answer to Counterclaim and New Matter to Counterclaim on the Defendants by mailing said copy by first class mail at Harrisburg, PA, to the attorney for Defendants at the following address: Christopher E. Rice, Esquire Martson, Deardorff, Williams, Otto, Gilroy & Faller Ten East High Street Carlisle, PA 17013 June 2, 2009 Peter B. Foster, Esquire Attorney for Plaintiff FILED -t F OF rrE PROTHCiAK3ARY 2089 JUN -4 PH 2: 4 8 CUMBERVVdpi W UNTY PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MICHAEL COSTELLO, Plaintiff NO. 08-5231 CIVIL TERN[ V. DOGWOOD ACRES CAMPGROUND, INC., CHARLES STRUB and LUCILLE STRUB, Defendants IN LAW AND IN EQUITY PRAECIPE FOR DISCONTINUANCE To the Prothonotary: Please mark this Civil Action settled and discontinued. October 29, 2009 cc: Christopher E. Rice, Esquire Martson, Deardorff, Williams, Otto, Gilroy & Faller Ten East High Street Carlisle, PA 17013 Peter B. Foster, Esquire Attorney for Plaintiff 114 South Street Harrisburg, PA 17101 717-234-9321 I.D. #15357 fILEU-0? FICE O ,r -r f L r ?,?TARY 2009 OCT 3a P 3, 32