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HomeMy WebLinkAbout08-7352ANTHONY NORTHRUP, ) Plaintiff ) vs. ) BRANDON POWERS and NICOLE ) POWERS, his wife, ) Defendants ) NOTICE TO DEFENDANTS NAMED HEREIN: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 6`,_'73-.) cu11 10-rl& 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 SOUTH BEDFORD STREET CARLISLE, PA 17013 TELEPHONE: (717) 249-3166 ANTHONY NORTHRUP, Plaintiff vs. BRANDON POWERS and NICOLE POWERS, his wife, Defendants COMPLAINT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 6?_7 3 ?? ?tv? J AND NOW comes the above-named Plaintiff, by his attorney Samuel L. Andes, and makes the following Complaint in this matter: 1. The Plaintiff herein is Anthony Northrup, an adult individual who resides in Camp Hill, Pennsylvania, and whose mailing address is P.O. Box 83, Camp Hill, PA 17011. 2. The Defendants herein are Brandon Powers and Nicole Powers, his wife, adult individuals who reside at 355 N. 26th Street in Camp Hill, PA 17011. 3. In May of 2008, Plaintiff became aware of an opportunity to purchase a pizzeria business in Summerdale, Pennsylvania. The business was owned by Joe Barone and, following discussions with Mr. Barone, Plaintiff decided to purchase the business. 4. Plaintiff recruited a friend of his family to invest in the purchase of the pizzeria business. That friend eventually dropped out of the project and decided not to invest or become a part owner of the business. 5. In early June 2008, Plaintiff contacted Defendant Brandon Powers to discuss the potential purchase of the business with him. Following those discussions, Plaintiff and Brandon Powers, on behalf of himself and his wife Nicole Powers, reached the following agreement: A. They would pay Joe Barone the total purchase price of $110,000.00 for the business; B. Each of them would contribute $10,000.00 cash for the down payment of $20,000.00; C. They would pay the balance of the purchase price owed to Mr. Barone from the profits of the business; D. Plaintiff and Brandon Powers would be equal co-owners of the business and would form a partnership to own the business; E. The business would hire Plaintiff to manage the pizza business and pay Plaintiff a salary of $800.00/week for those services; and F. Brandon Powers would have an attorney prepare the paperwork necessary to implement the agreement of the parties. 6. In reliance upon the agreement between himself and Brandon Powers, Plaintiff borrowed $10,000.00 and paid that to Joe Barone as Plaintiffs 50% share of the down payment. At the time of that payment, Plaintiff received a receipt or acknowledgment from Mr. Barone of the payment of the purchase price for the purchase of the pizza business. Attached hereto and marked as EXHIBIT A is a copy of the certified check delivered to Mr. Barone and Mr. Barone's handwritten acknowledgment of receipt of that payment toward the purchase price of the pizza business. 7. To Plaintiff's knowledge, the Defendants, or one of them, deposited an additional $10,000.00 with Mr. Barone as their one half of the down payment for the purchase of the business. 8. In reliance upon the agreement of the parties, Plaintiff ceased his employment with another pizza restaurant and commenced work as manager of the pizza business purchased by Plaintiff and Defendants. 9. In reliance upon the agreement between him and the Defendants, Plaintiff invested additional funds and assets in the pizza business which Plaintiff and Defendants have purchased. Those expenditures and contributions consisted of the following: A. The cost of a high velocity commercial fan $134.27 B. Large floor model fan $89.95 C. Signage $495.34 D. Supplies for food handlers $105.00 E. Soft drinks 300.00 Total $1,124.56 10. Defendants never prepared the agreements between Plaintiff and Defendants, as Brandon Powers had promised. 11. Instead of preparing the documents to confirm the agreement between Plaintiff and Defendants, Defendants formed a corporation, apparently titled "Valley Road Restaurant, Inc." and, without Plaintiff's knowledge, completed the payments to Mr. Barone and took ownership of the restaurant business and its assets in the name of that corporation. 12. In late July of 2008, after Plaintiff had worked several weeks as manager of the pizza business, and while Plaintiff was out of town, Defendants advised Plaintiff that they were terminating his services as manager of the restaurant business. 13. When Plaintiff returned to this area, Defendants claimed they were dissatisfied with Plaintiff's services as manager of the company and advised him that they had reduced his work hours and his income. At that time, and for the first time, Defendants disclosed that they had formed a corporation and held title to the business in that corporation. 14. During the conversation described in the foregoing paragraph, Defendants advised Plaintiff that he was still considered an owner of the business, but refused to disclose or specify the percentage of his ownership or to disclose to him the number of shares of stock they were willing to provide to him. 15. Plaintiff advised Defendants that their ownership of the corporation was not satisfactory to him and demanded that he either be recognized as a 50% owner of the business or that the funds and assets that he had contributed to the purchase of the business be immediately returned to him. 16. In response to Plaintiffs demands, Defendants terminated his employment by the pizza business and accused him, falsely, of stealing cash from the business. 17. Defendants have continued to own and operate the pizza business, through their corporation, and have failed and refused to provide any ownership interest in, any share of the profits or other benefits from, or any other accounting for the business to Plaintiff. COUNT I - CONSTRUCTIVE TRUST 18. The averments set forth in the foregoing paragraphs of this Complaint are incorporated herein by reference. 19. Plaintiff made a cash payment to Joe Barone for his share of the down payment of the purchase of the restaurant business. That payment was made prusant to an express agreement between Plaintiff and Defendants that they would jointly purchase the business, that Plaintiff would be a one half owner in the business, and that Plaintiff would serve as manager at an agreed rate of compensation. 20. Defendants breached the oral agreement they had with Plaintiff and have misappropriated the restaurant business to their own use and to the exclusion of Plaintiff. 21. It would be manifestly unjust, unfair, and inequitable to permit Defendants to retain the cash contribution Plaintiff made for the down payment of the business and the other contributions Plaintiff made to the business, without providing to him the 50% ownership interest in the business for which he bargained with Defendants. 22. Defendants, by their conduct, have been unjustly enriched at Plaintiff's cost and expense. WHEREFORE, Plaintiff prays this court to impose upon the restaurant business, or the corporation which currently owns it, or Defendants themselves, a constructive trust, in favor of Plaintiff, to award to Plaintiff his 50% ownership interest in the business and 50% of its profits. COUNT II - CONTRACT 23. The averments set forth in Paragraphs 1 through 17 are incorporated herein by reference. 24. Defendants breached the contract which the two of them, through Defendant Brandon Powers, made with Plaintiff whereby the parties would acquire the restaurant business. 25. As a result of their breach of the agreement between the parties, Plaintiff has suffered the damages listed above, including the down payment he paid to Mr. Barone and the other contributions he made to the restaurant business. WHEREFORE, Plaintiff demands judgment against Defendants in the amount of $11,124.56, plus interest from and after 31 July 2008, plus costs of suit. a e-il L. *tMe A ttorney for Plaintiff Supreme Court ID # 17225 525 North 12" Street Lemoyne, PA 17043 (717) 761-5361 I verify that the statements made in this document are true and correct. I understand that any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904 (unsworn falsification to authorities). Cate: I2I ! log. ANTHONY NO THR P EXHIBIT A ' .St MEMBERS 1st FEDERAL CREDIT UNION P.O. Box 40 Mechanicsburg, Pennsylvania 17055 I ieck Purpose SHARE WITHDRAWAL Check# 355269 $10,000.00, :ct XXXXXXX512 KRAUSE,MARYLYN L Effect: 06/20/08 Post: 06/20/08 Tlr: 0366 0 DUE DATE PRINCIPAL INTEREST FEES NEW BALANCE TRAN AMOUNT SEQ See receipt for reference) -:j?F \a_ st MEMBERS 1st FEDERAL CREDIT UNION -? P.O. Box 40 ?? Mechanicsburg, Pennsylvania?l'7( ? djw?,,? ?l?,ooo I neck Purpose SHARE WITHDRAWAL Check# 355261 ,000.00 ,ct XXXXX x512 KRAUSE,MARYLYN L Effect: 06/19/08 Post: 06/20/08 Tlr: 0366 ) DUE DATE PRINCIPAL INTEREST :ee receipt for reference St. MEMBERS 1" FEDERAL CREDIT;UNION P.O. Box 40' Mechanicsburg, Pennsylvania 17055 TAY ** Ten Thousand and 00/1 MARYLYN L KRAUSE TO THE OR-JOE BARONE ORDER OF FEES NEW BALANCE TRAM AMOUNT SEQ .. T. rd Issued By: Monsyprem Payment Systems. Ina P.O..Box 8476,446nnespo6aMN 66460 Drewss:. Boston Sete'Dep bit & TmVt Company Boston,: MA 00 0000355269 .6-706!110. 06/20/08 $101000;00 , CERTIFIEW Payable Only As Originally Drawn And When Properly Eindorsed MEMBERS.Ist FEDERAL CREDIT-UNION DATE AUTHORIZED SIGN ATCIRE c . ? CO -'? ? ?/ I M ANTHONY NORTHRUP, Plaintiff vs. BRANDON POWERS and NICOLE POWERS, his wife, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA } CIVIL ACTION - LAW NO. 08-7352 PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter my appearance on behalf of my clients, Brandon Powers and Nicole Powers, in the above-captioned action. JAMF,"TWITH, DIETTERICK & CON E ,LLP Date: January 2009 By: Neil W. Yah , squire Attorney I. N .82278 134 Sipe venue Hummel own, P 17036 (717) 533 3280 Attorneys efendants, Brandon Powers and Nicole Powers r ANTHONY NORTHRUP, ) IN THE COURT OF COMMON PLEAS OF Plaintiff ) CUMBERLAND COUNTY, PENNSYLVANIA VS. ) CIVIL ACTION -LAW BRANDON POWERS and ) NO. 08-7352 NICOLE POWERS, his wife, ) Defendants ) CERTIFICATE OF SERVICE I, NEIL WARNER YAHN, Esquire, do hereby certify that I served a true and correct copy of the foregoing Praecipe for Entry of Appearance upon the following below-named individual by U.S. Mail, first class postage prepaid, at Hershey, Pennsylvania this 1, day of January, 2009. 11 SERVED UPON: Samuel L. Andes, Esquire 525 North Twelfth Street P.O. Box 168 Lemoyne, PA 17043 (717) 761-5361 Attorney for Plaintiff TER YARN, ESQUIRE #82278 r.,a 0 ? '.?' ?ai?, ? ?:??' _? ? i'i7? -r` `" '" --' J 4 , "L7 ? ?? c ry ? c? c - ANTHONY NORTHRUP, ) IN THE COURT OF COMMON PLEAS OF Plaintiff ) CUMBERLAND COUNTY, PENNSYLVANIA vs. ) CIVIL ACTION - LAW ) BRANDON POWERS and ) NO. 08-7352 NICOLE POWERS, his wife, ) Defendants ) ACCEPTANCE OF SERVICE I, Neil Warner Yahn, Esquire, attorney for the above-named Defendants, accept service of the Complaint in the above action on behalf of my clients, Brandon Powers and Nicole Powers. JAMES S,NUTH, DIETTERICK & Date: January A -;- , 2009 By: Neril . Yahn Esquire At y I.D. o. 82278 13 e Av en e A 17036 (717) 53=0 Attorneys for Defendants, Brandon Powers and Nicole Powers I% ANTHONY NORTHRUP, Plaintiff vs. BRANDON POWERS and NICOLE POWERS, his wife, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 08-7352 CERTIFICATE OF SERVICE I, NEIL WARNER YARN, Esquire, do hereby certify that I served a true and correct copy of the foregoing Acceptance of Service upon the following below-named individual by U.S. Mail, first class postage prepaid, at Hershey, Pennsylvania this day of January, 2009. SERVED UPON: Samuel L. Andes, Esquire 525 North Twelfth Street P.O. Box 168 Lemoyne, PA 17043 (717) 761-5361 Attorney for Neil Warner Yahn, Esquire Attorney I.D. No. 82278 James Smith Dietterick & Connelly, LLP P.O. Box 650 Hershey, PA 17033 Attorneys for Defendants ANTHONY NORTHRUP, Plaintiff vs. BRANDON POWERS and NICOLE POWERS, his wife, Defendants To: ANTHONY NORTHRUP IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 08-7352 NOTICE TO PLEAD YOU ARE HEREBY NOTIFIED to file a written response to the enclosed Preliminary Objections within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully submitted, JAMES SMITH DIET MUCK & CONNELLY, LLP Dated: z ?, 2009 By: Nearne Yahn Attorney I. No. 82278 PIO. Box 65 Iershey, PA 17033 (7Q)--53, 280 Attorney for Defendants Neil Warner Yahn, Esquire Attorney I.D. No. 82278 James Smith Dietterick & Connelly, LLP P.O. Box 650 Hershey, PA 17033 Attorneys for Defendants ANTHONY NORTHRUP, Plaintiff vs. BRANDON POWERS and NICOLE POWERS, his wife, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 08-7352 PRELIMINARY OBJECTIONS TO COMPLAINT 2 3 4. On or about December 18, 2008, the Plaintiff, Anthony Northrup, filed a Complaint (herein "Complaint") set forth as Exhibit "A" against the Defendants, Brandon Powers and Nicole Powers (herein "Defendants"). Defendants now file preliminary objections pursuant to Pa. R.C.P. 1028 to the Complaint in the nature of nonjoinder of a necessary party as per Pa R.C.P. 1028 (a)(5). Plaintiff states, "Instead of preparing the documents to confirm the agreement between Plaintiff and Defendants, Defendants formed a corporation, apparently titled `Valley Road Restaurant, Inc,' and, without Plaintiff's knowledge, completed the payments to Mr. Barone and took ownership of the restaurant business and its assets in the name of that corporation." See Complaint ¶I 1 (emphasis added). Valley Road Restaurant, Inc. will herein be referred to as "Valley Road". Furthermore, in the prayer for relief in Count I of the Complaint, Plaintiff requests that "this court impose upon the restaurant business, or the corporation which currently owns it, or Defendants themselves, a constructive trust, in favor of the Plaintiff, to award to Plaintiff his 50% ownership interest in the business and 50% of its profits." See Complaint Count I (emphasis added). 5. As evidenced, Plaintiff not only acknowledges that Valley Road owns all of the assets and property in question in this matter, but also requests a remedy by way of an ownership interest from Valley Road. 6. As such, Valley Road is an indispensable party to this matter as it is a party to the agreement and retains exclusive ownership of the property in question. Thus, the Complaint is deficient for failing to add an indispensable party under Pa. R.C.P. 1028(a)(5). Plaintiff's commencement of this action without addressing the appropriate party simply exemplifies the cavalier and disingenuous behavior that the Plaintiff has exhibited since the inception of this purchase in June 2008. In actuality, Plaintiff has cost the Defendants over $5,000 in stolen profits and lost wages and the Plaintiff is merely bringing action against the Defendants as individuals as a scare tactic. WHEREFORE, for the aforementioned reasons, the Defendants requests that this Honorable Court issue an Order striking the Complaint together with legal fees in the amount of Three Thousand Dollars ($3,000) and costs of this suit, or in the alternative, issue an Order that the Plaintiff amends his Complaint so that the Defendants may properly address and defend this matter before this Honorable Court. 2 Respectfully submitted, JAMES, SMrM, DIETTERICK & CONNELLY, LLP Date: X111 , 2009 By: I Warner\Yahn attorney I.D No. 82278 P. Box 6 YO Hershe , A 17033 (717) 533-3280 Attorney for Defendants 3 EXHIBIT A ANTHONY NORTHRUP, ) IN THE COURT OF COMMON Plaintiff ) PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. ) CIVIL ACTION - LAW BRANDON POWERS and NICOLE ) POWERS, his wife, ) NOd ?., 73 5 % Defendants C? NOTICE co TO DEFENDANTS NAMED HEREIN: +;J i=ce -n YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAIhSTC'?HE--< 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 SOUTH BEDFORD STREET CARLISLE, PA 17013 TELEPHONE: (717) 249-3166 ANTHONY NORTHRUP, ) Plaintiff ) vs. ) BRANDON POWERS and NICOLE ) POWERS, his wife, ) Defendants ) COMPLAINT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. o 7 '5--)- c:-4' _(e"Al AND NOW comes the above-named Plaintiff, by his attorney Samuel L. Andes, and makes the following Complaint in this matter: 1. The Plaintiff herein is Anthony Northrup, an adult individual who resides in Camp Hill, Pennsylvania, and whose mailing address is P.O. Box 83, Camp Hill, PA 17011. 2. The Defendants herein are Brandon Powers and Nicole Powers, his wife, adult individuals who reside at 355 N. 26th Street in Camp Hill, PA 17011. 3. In May of 2008, Plaintiff became aware of an opportunity to purchase a pizzeria business in Summerdale, Pennsylvania. The business was owned by Joe Barone and, following discussions with Mr. Barone, Plaintiff decided to purchase the business. 4. Plaintiff recruited a friend of his family to invest in the purchase of the pizzeria business. That friend eventually dropped out of the project and decided not to invest or become a part owner of the business. 5. In early June 2008, Plaintiff contacted Defendant Brandon Powers to discuss the potential purchase of the business with him. Following those discussions, Plaintiff and Brandon Powers, on behalf of himself and his wife Nicole Powers, reached the following agreement: A. They would pay Joe Barone the total purchase price of $110,000.00 for the business; B. Each of them would contribute $10,000.00 cash for the down payment of $20,000.00; C. They would pay the balance of the purchase price owed to Mr. Barone from the profits of the business; D. Plaintiff and Brandon Powers would be equal co-owners of the business and would form a partnership to own the business; E. The business would hire Plaintiff to manage the pizza business and pay Plaintiff a salary of $800.00/week for those services; and F. Brandon Powers would have an attorney prepare the paperwork necessary to implement the agreement of the parties. 6. In reliance upon the agreement between himself and Brandon Powers, Plaintiff borrowed $10,000.00 and paid that to Joe Barone as Plaintiff's 50% share of the down payment. At the time of that payment, Plaintiff received a receipt or acknowledgment from Mr. Barone of the payment of the purchase price for the purchase of the pizza business. Attached hereto and marked as EXHIBIT A is a copy of the certified check delivered to Mr. Barone and Mr. Barone's handwritten acknowledgment of receipt of that payment toward the purchase price of the pizza business. 7. To Plaintiffs knowledge, the Defendants, or one of them, deposited an additional $10,000.00 with Mr. Barone as their one half of the down payment for the purchase of the business. 8. In reliance upon the agreement of the parties, Plaintiff ceased his employment with another pizza restaurant and commenced work as manager of the pizza business purchased by Plaintiff and Defendants. 9. In reliance upon the agreement between him and the Defendants, Plaintiff invested additional funds and assets in the pizza business which Plaintiff and Defendants have purchased. Those expenditures and contributions consisted of the following: A. The cost of a high velocity commercial fan $134.27 B. Large floor model fan $89.95 G. Signage $495.34 D. Supplies for food handlers $105.00 E. Soft drinks 300.00 Total $1,124.56 10. Defendants never prepared the agreements between Plaintiff and Defendants, as Brandon Powers had promised. 11. Instead of preparing the documents to confirm the agreement between Plaintiff and Defendants, Defendants formed a corporation, apparently titled "Valley Road Restaurant, Inc." and, without Plaintiff's knowledge, completed the payments to Mr. Barone and took ownership of the restaurant business and its assets in the name of that corporation. 12. In late July of 2008, after Plaintiff had worked several weeks as manager of the pizza business, and while Plaintiff was out of town, Defendants advised Plaintiff that they were terminating his services as manager of the restaurant business. 13. When Plaintiff returned to this area, Defendants claimed they were dissatisfied with Plaintiffs services as manager of the company and advised him that they had reduced his work hours and his income. At that time, and for the first time, Defendants disclosed that they had formed a corporation and held title to the business in that corporation. 14. During the conversation described in the foregoing paragraph, Defendants advised Plaintiff that he was still considered an owner of the business, but refused to disclose or specify the percentage of his ownership or to disclose to him the number of shares of stock they were willing to provide to him. 15. Plaintiff advised Defendants that their ownership of the corporation was not satisfactory to him and demanded that he either be recognized as a 50% owner of the business or that the funds and assets that he had contributed to the purchase of the business be immediately returned to him. 16. In response to Plaintiff's demands, Defendants terminated his employment by the pizza business and accused him, falsely, of stealing cash from the business. 17. Defendants have continued to own and operate the pizza business, through their corporation, and have failed and refused to provide any ownership interest in, any share of the profits or other benefits from, or any other accounting for the business to Plaintiff. COUNT I CONSTRUCTIVE TRUST 18. The averments set forth in the foregoing paragraphs of this Complaint are incorporated herein by reference. 19. Plaintiff made a cash payment to Joe Barone for his share of the down payment of the purchase of the restaurant business. That payment was made prusant to an express agreement between Plaintiff and Defendants that they would jointly purchase the business, that Plaintiff would be a one half owner in the business, and that Plaintiff would serve as manager of an agreed rate of compensation. 20. Defendants breached the oral agreement they had with Plaintiff and have misappropriated the restaurant business to their own use and to the exclusion of Plaintiff. 21. It would be manifestly unjust, unfair, and inequitable to permit Defendants to retain the cash contribution Plaintiff made for the down payment of the business and the other contributions Plaintiff made to the business, without providing to him the 50% ownership interest in the business for which he bargained with Defendants. 22.- Defendants, by their conduct, have been unjustly enriched at Plaintiff's cost and expense. WHEREFORE, Plaintiff prays this court to impose upon the restaurant business, or the corporation which currently owns it, or Defendants themselves, a constructive trust, in favor of Plaintiff, to award to Plaintiff his 50% ownership interest in the business and 50% of its profits. COUNT II - CONTRACT 23. The averments set forth in Paragraphs 1 through 17 are incorporated herein by reference. 24. Defendants breached the contract which the two of them, through Defendant Brandon Powers, made with Plaintiff whereby the parties would acquire the restaurant business. 25. As a result of their breach of the agreement between the parties, Plaintiff has suffered the damages listed above, including the down payment he paid to Mr. Barone and the other contributions he made to the restaurant business. WHEREFORE, Plaintiff demands judgment against Defendants in the amount of $11,124.56, plus interest from and after 31 July 2008, plus costs of suit. 'a uel L. A es Attorney for Plaintiff Supreme Court ID # 17225 525 North 12th Street Lemoyne, PA 17043 (717) 761-5361 I verify that the statements made in this document are true and correct. I understand that any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904 (unsworn falsification to authorities). Date: 1211 LOF j2m&??6 ANTHON NORTHROP EXHIBIT A A MEMBERS Pt FEDERAL CREDIT UNION P.O. Box 40 Mechanicsburg, Pennsylvania 17055 eck Purpose SHARE WITHDRAWAL Check# 355269 $10, 000.00' ct xxxxxxx512 KRAUSE,MARYLYN L Effect: 06/20/08 Post: 06/20/08 T1r: 0366 DUE DATE PRINCIPAL INTEREST ae receipt for reference) FEES NEW BALANCE TRAN AMOUNT a-It St , MEMBERS 1St FEDERAL CREDIT UNION P.O. Box 40 Mechanicsburg, Pennsylvania 0 SEQ d? ?la?oao ti3 ack Purpose SHARE WITHDRAWAL Check# 3552691 ,000.00 :t XXD=512 KRAUSE,MARYLYN L Effect: 06/ 0 OS Post: 06/20/08 Tlx: 0366 DUE DATE PRINCIPAL INTEREST FEES NEW BALANCE TRAN AMOUNT SEQ ae receipt for reference) St. Isw.d By: MonayQnun Payment Systems, Mo. P.O..Box 8478,40nnnpob.MN 66480 Onnv.a:. Boston Sai*•DapoWt & Tnut Oompany MEMBERS Pt . Boston.: MA 00 00003$5269 6.708/770, ' ;n.. FEDERAL CREDIT UNION -P.O: box 40' •' :?"« : ?... ... -Plechanicsburg, Pennsylvania 17055 06120/08 $10,00D;00 PAY * * Ten Thousand and 00/ 1 MARYLYN L KRAUSE 27M OR-JOE BARONE RTI:FIE . ::Payable OniyAs OriginaHy'Drawn And When Properly Endorsed MEMBERS•ist. FEDERAL CREDIT-UMON DATE 1UTHRRIZED StGN'AT(JRl ..a •? r r n n n oa a r•1 1 1 r-1 ri n r•n r) . a n -•OFFICIAL`HEC . . ' Drawer: MEMBERS; IST FEDERAL CREDIT:?7MON'.. TWO SIONATURES REQUIRED FOR CHECK OVER ;9?,bOO.QO• CQ. VERIFICATION I, Brandon Powers and Nicole Powers, verify that the facts set forth in the foregoing document 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, relating to unsworn falsification to authorities. Date: 2009 Brandon Powers Nicole Powers Neil Warner Yahn, Esquire Attorney I.D. No. 82278 James Smith Dienerick & Connelly, LLP P.O. Box 650 Hershey, PA 17033 Attorneys for Defendants ANTHONY NORTHRUP, Plaintiff vs. BRANDON POWERS and NICOLE POWERS, his wife, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 08-7352 CERTIFICATE OF SERVICE AND NOW, this r1 day of February, 2009, I, Neil Warner Yahn, Esquire, do hereby certify that I served a true and correct copy of the foregoing Preliminary Objections upon the following by depositing the same in the U.S. Mail, first class postage pre-paid at Hershey, Dauphin County, Pennsylvania: SERVED UPON: Samuel L. Andes, Esquire 525 North Twelfth Street P.O. Box 168 Lemoyne, PA 17043 Attorney for Plaintiff Kl Wa3 ner Yahn, Esquire up. Ct. I) P. #82278 o c ? c -„ Vic.°=a . . _ ra ANTHONY NORTHRUP, Plaintiff vs. BRANDON POWERS and NICOLE POWERS, his wife, Defendants NOTICE TO DEFENDANTS NAMED HEREIN: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 08-7352 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 SOUTH BEDFORD STREET CARLISLE, PA 17013 TELEPHONE: (717) 249-3166 ANTHONY NORTHRUP, ) IN THE COURT OF COMMON Plaintiff ) PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. ) CIVIL ACTION - LAW BRANDON POWERS and NICOLE ) POWERS, his wife, ) NO. 08-7352 Defendants ) AMENDED COMPLAINT AND NOW comes the above-named Plaintiff, by his attorney Samuel L. Andes, and makes the following Complaint in this matter: 1. The Plaintiff herein is Anthony Northrup, an adult individual who resides in Camp Hill, Pennsylvania, and whose mailing address is P.O. Box 83, Camp Hill, PA 17011. 2. The Defendants herein are Brandon Powers and Nicole Powers, his wife, adult individuals who reside at 355 N. 26th Street in Camp Hill, PA 17011. 3. In May of 2008, Plaintiff became aware of an opportunity to purchase a pizzeria business in Summerdale, Pennsylvania. The business was owned by Joe Barone and, following discussions with Mr. Barone, Plaintiff decided to purchase the business. 4. Plaintiff recruited a friend of his family to invest in the purchase of the pizzeria business. That friend eventually dropped out of the project and decided not to invest or become a part owner of the business. 5. In early June 2008, Plaintiff contacted Defendant Brandon Powers to discuss the potential purchase of the business with him. Following those discussions, Plaintiff and Brandon Powers, on behalf of himself and his wife Nicole Powers, reached the following agreement: A. They would pay Joe Barone the total purchase price of $110,000.00 for the business; B. Each of them would contribute $10,000.00 cash for the down payment of $20,000.00; C. They would pay the balance of the purchase price owed to Mr. Barone from the profits of the business; D. Plaintiff and Brandon Powers would be equal co-owners of the business and would form a partnership to own the business; E. The business would hire Plaintiff to manage the pizza business and pay Plaintiff a salary of $800.00tweek for those services; and F. Brandon Powers would have an attorney prepare the paperwork necessary to implement the agreement of the parties. 6. In reliance upon the agreement between himself and Brandon Powers, Plaintiff borrowed $10,000.00 and paid that to Joe Barone as Plaintiffs 50% share of the down payment. At the time of that payment, Plaintiff received a receipt or acknowledgment from Mr. Barone of the payment of the purchase price for the purchase of the pizza business. Attached hereto and marked as EXHIBIT A is a copy of the certified check delivered to Mr. Barone and Mr. Barone's handwritten acknowledgment of receipt of that payment toward the purchase price of the pizza business. 7. To Plaintiff's knowledge, the Defendants, or one of them, deposited an additional $10,000.00 with Mr. Barone as their one half of the down payment for the purchase of the business. 8. In reliance upon the agreement of the parties, Plaintiff ceased his employment with another pizza restaurant and commenced work as manager of the pizza business purchased by Plaintiff and Defendants. 9. In reliance upon the agreement between him and the Defendants, Plaintiff invested additional funds and assets in the pizza business which Plaintiff and Defendants have purchased. Those expenditures and contributions consisted of the following: A. The cost of a high velocity commercial fan $134.27 B. Large floor model fan $89.95 C. Signage $495.34 D. Supplies for food handlers $105.00 E. Soft drinks 300.00 Total $1,124.56 10. Defendants never prepared the agreements between Plaintiff and Defendants, as Brandon Powers had promised. 11. Instead of preparing the documents to confirm the agreement between Plaintiff and Defendants, Defendants formed a corporation, apparently titled "Valley Road Restaurant, Inc." and, without Plaintiff's knowledge, completed the payments to Mr. Barone and took ownership of the restaurant business and its assets in the name of that corporation. 12. In late July of 2008, after Plaintiff had worked several weeks as manager of the pizza business, and while Plaintiff was out of town, Defendants advised Plaintiff that they were terminating his services as manager of the restaurant business. 13. When Plaintiff returned to this area, Defendants claimed they were dissatisfied with Plaintiffs services as manager of the company and advised him that they had reduced his work hours and his income. At that time, and for the first time, Defendants disclosed that they had formed a corporation and held title to the business in that corporation. 14. During the conversation described in the foregoing paragraph, Defendants advised Plaintiff that he was still considered an owner of the business, but refused to disclose or specify the percentage of his ownership or to disclose to him the number of shares of stock they were willing to provide to him. 15. Plaintiff advised Defendants that their ownership of the corporation was not satisfactory to him and demanded that he either be recognized as a 50% owner of the business or that the funds and assets that he had contributed to the purchase of the business be immediately returned to him. 16. In response to Plaintiffs demands, Defendants terminated his employment by the pizza business and accused him, falsely, of stealing cash from the business. 17. Defendants have continued to own and operate the pizza business, through their corporation, and have failed and refused to provide any ownership interest in, any share of the profits or other benefits from, or any other accounting for the business to Plaintiff. COUNT I - CONSTRUCTIVE TRUST 18. The averments set forth in the foregoing paragraphs of this Complaint are incorporated herein by reference. 19. Plaintiff made a cash payment to Joe Barone for his share of the down payment of the purchase of the restaurant business. That payment was made prusant to an express agreement between Plaintiff and Defendants that they would jointly purchase the business, that Plaintiff would be a one half owner in the business, and that Plaintiff would serve as manager at an agreed rate of compensation. 20. Defendants breached the oral agreement they had with Plaintiff and have misappropriated the restaurant business to their own use and to the exclusion of Plaintiff. 21. It would be manifestly unjust, unfair, and inequitable to permit Defendants to retain the cash contribution Plaintiff made for the down payment of the business and the other contributions Plaintiff made to the business, without providing to him the 50% ownership interest in the business for which he bargained with Defendants. 22. Defendants, by their conduct, have been unjustly enriched at Plaintiffs cost and expense. WHEREFORE, Plaintiff prays this court to impose upon the Defendants any ownership interest they or either of them have in the restaurant business, or any entity that owns the restaurant business, including the proceeds of any sale or other transfer of the business and any profits or income generated by the business, a constructive trust in favor of Plaintiff to protect Plaintiffs 50% ownership interest in the business and its profits or proceeds. COUNT II - CONTRACT 23. The averments set forth in Paragraphs 1 through 17 are incorporated herein by reference. 24. Defendants breached the contract which the two of them, through Defendant Brandon Powers, made with Plaintiff whereby the parties would acquire the restaurant business. 25. As a result of their breach of the agreement between the parties, Plaintiff has suffered the damages listed above, including the down payment he paid to Mr. Barone and the other contributions he made to the restaurant business. WHEREFORE, Plaintiff demands judgment against Defendants in the amount of $11,124.56, plus interest from and after 31 July 2008, plus costs of suit. Samuel L. An s Attorney for Plaintiff Supreme Court ID # 17225 525 North 12'' Street P.O. Box 168 Lemoyne, PA 17043 (717) 761-5361 I verify that the statements made in this document are true and correct. I understand that any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904 (unsworn falsification to authorities). Date: -?©-7709t=,) ANTHONY OR HRUP CERTIFICATE OF SERVICE I hereby certify that I served an original of the foregoing document upon the counsel for the Defendants herein by regular mail, postage prepaid, addressed as follows: Neil Warner Yahn, Esquire P.O. Box 650 Hershey, PA 17033 Date: 23 February 2009 q1 ). my M. rkins Secretary for Samuel L. Andes EXHIBIT A fV MEMBERS 1St FEDERAL CREDIT UNION P.O. Box 40 Mechanicsburg, Pennsylvania 17055 I ack Purpose SHARE WITHDRAWAL Check# 355269 $10,000.00' ct XXX3XX512 KRAUSE,MARYLYN L Effect: 06/20/08 Post: 06/20/08 T1r: 0366 DUE DATE PRINCIPAL INTEREST FEES NEW BALANCE TRAM AMOUNT Be receipt zor reference) S \aA.P- MEMBERS 1St FEDERAL CREDIT UNION P.O. Box 40 Mechanicsburg, Pennsylvania ? d4t[-A-i { 3ck Purpose SHARE WITHDRAWAL Check# 355269 II :t XXX 512 KRAUSE,MARYLYN L Effect: 061 ;000.00 8 Post: 06/20/08 T1r: 0366 I SEQ ?laraao DUE DATE PRINCIPAL INTEREST FEES NEW BALANCE TRAN AMOUNT SEQ m receipt for reference) St M- EMBER'S V.. FEDBRAT CREDIT UNION #P.0: Box 40" -Mechanicsburg, Pennsylvania 1705.5 PAY ** T-ei1 Thousand and 00/1 MARYLYN L'KRAUSE . ' TIIE OR jOE 13ARONE RDER {nuW by: ManIgim PMrrwnt Optenr, Me. ' P.O. 9470, IlCrrwpowJM ?i 66460 DnwveK. Bomm saft•DOPOW A Tnw Cpmpmy Boetar,; MA k-7001110. 4 ' S r 06/20/08 ER -Fi .. PayatiteenlyAs-Odginaliy'Drawn And When Properly Endorsed MEWERS•fst. -FEDERAL CREDITUNiON DATE f .. '.00 0600355269 $10,000;00 .OFFICIAL -oHECK Drawer: MEMBERS 3ST FEDERAL ILREDiT 1?N10)V . ?. - -WO SIOMATURES REOURED FOR CHECK OVER :4 ,600 Q0• Co -Ij rr, Neil Warner Yahn, Esquire Attorney I.D. No. 82278 James Smith Dietterick & Connelly, LLP P.O. Box 650 Hershey, PA 17033 Attorneys for Defendants ANTHONY NORTHRUP, Plaintiff vs. BRANDON POWERS and NICOLE POWERS, his wife, Defendants To: ANTHONY NORTHRUP IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 08-7352 } NOTICE TO PLEAD YOU ARE HEREBY NOTIFIED to file a written response to the enclosed Preliminary Objections within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully submitted, DIETTERICK & CONNELLY, LLP Dated: 2009 By: rney am r Yahn I. No. 82278 0. Box 65 ershey, PA 1 033 717)533-32 M r Defendants Neil Warner Yahn, Esquire Attorney I.D. No. 82278 James Smith Dietterick & Connelly, LLP P.O. Box 650 Hershey, PA 17033 Attorneys for Defendants ANTHONY NORTHRUP, Plaintiff vs. BRANDON POWERS and NICOLE POWERS, his wife, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 08-7352 PRELIMINARY OBJECTIONS TO AMENDED COMPLAINT 2 3. 4 On or about December 18, 2008, the Plaintiff, Anthony Northrup (herein "Plaintiff'), filed a Complaint (herein "Complaint') set forth as Exhibit "A" against the Defendants, Brandon Powers and Nicole Powers (herein "Defendants"). On or about February 11, 2009, Defendants filed preliminary objections pursuant to Pa. R.C.P. 1028 to the Complaint in the nature of nonjoinder of a necessary party as per Pa R.C.P. 1028 (a)(5). Defendants' averred that their corporation, Valley Road Restaurant, Inc. (herein "Valley Road"), was a necessary party to this action as Valley Road is the owner of all the assets and property in question. Plaintiff acknowledged Valley Road's ownership in the Compliant when Plaintiff alleged, "Instead of preparing the documents to confirm the agreement between Plaintiff and Defendants, Defendants formed a corporation, apparently titled `Valley Road Restaurant, Inc,' and, without Plaintiff's knowledge, completed the payments to Mr. Barone and took ownership of the restaurant business and its assets in the name of that corporation." See Complaint ¶1 l (emphasis added). 5. Furthermore, in the prayer for relief in Count I of the Complaint, Plaintiff requested that "this court impose upon the restaurant business, or the corporation which currently owns it, or Defendants themselves, a constructive trust, in favor of the Plaintiff, to award to Plaintiff his 50% ownership interest in the business and 50% of its profits." See Complaint Count I (emphasis added). b. As evidenced, Plaintiff not only acknowledged that Valley Road owns all of the assets and property in question in this matter, but also requested a remedy by way of an ownership interest and a constructive trust consisting of Fifty Percent (50%) of the profits from Valley Road. 7. As such, Defendants' averred that Valley Road is an indispensable party to this matter as it is a party to the agreement and retains exclusive ownership of the property in question, thus making the Complaint deficient for failing to add an indispensable party under Pa. R.C.P. 1028(a)(5). 8. On or about February 24, 2009, Plaintiff filed an Amended Complaint (herein "Amended Complaint") set forth as Exhibit "B" against Defendants. 9. Averment 11 of the Amended Complaint is identical to Averment 11 of the Complaint, which indicates Plaintiff's acknowledgement of Valley Road's ownership of all assets and property of the business. 10. Furthermore, the prayer for relief in Count I of the Amended Complaint now reads, "Plaintiff prays this Court to impose upon the Defendants any ownership interest they or 2 either of them have in the restaurant business, or any entity that owns the restaurant business, including the proceeds of any sale or other transfer of the business and any profits or income generated by the business, a constructive trust in favor of Plaintiff to protect Plaintiff's 50% ownership interest in the business and its profits or proceeds." See Amended Complaint Count I (emphasis added). 11. As evidenced, Plaintiff is still requesting a remedy by way of an ownership interest and a constructive trust consisting of Fifty Percent (50%) of the profits from the entity which owns the business, and yet, Plaintiff has failed to add the corporation. 12. As such, Valley Road needs to be made a party to this action under Pa. R.C.P. 1028(a)(5). 13. Plaintiff's commencement of this action without addressing the appropriate party simply exemplifies the cavalier and disingenuous behavior that the Plaintiff has exhibited since the inception of this purchase in June 2008. In actuality, Plaintiff has cost the Defendants over $5,000 in stolen profits and lost wages and the Plaintiff is continuing to bring this action against the Defendants as individuals as a scare tactic. WHEREFORE, for the aforementioned reasons, the Defendants requests that this Honorable Court issue an Order striking the Amended Complaint together with legal fees in the amount of Three Thousand Dollars ($3,000) and costs of this suit, or in the alternative, issue an Order that the Plaintiff amends his Amended Complaint so that the Defendants may properly address and defend this matter before this Honorable Court. 3 Respectfully submitted, SMITH, DIETTERICK & CONNELLY, LLP 0G Date: 3 1? '2009 By: 0" Neil Wa er Yahn Attorney D. No. 82278 O. Box 50 ershey, A 17033 (7 -3280 Attorney for Defendants EXHIBIT A ANTHONY NORTHRUP, } IN THE COURT OF COMMON Plaintiff ) PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. ) CIVIL ACTION - LAW BRANDON POWERS and NICOLE ) POWERS, his wife, ) NO. - ? 0 Defendants ) rrv r7i NOTICE co Y TO DEFENDANTS NAMED HEREIN: - YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGA111STE HE-< 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 SOUTH BEDFORD STREET CARLISLE, PA 17013 TELEPHONE: (717) 249-3166 ANTHONY NORTHRUP, ) Plaintiff ) vs. ) BRANDON POWERS and NICOLE ) POWERS, his wife, ) Defendants ) COMPLAINT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW AND NOW comes the above-named Plaintiff, by his attorney Samuel L. Andes, and makes the following Complaint in this matter: 1. The Plaintiff herein is Anthony Northrup, an adult individual who resides in Camp Hill, Pennsylvania, and whose mailing address is P.O. Box 83, Camp Hill, PA 17011. 2. The Defendants herein are Brandon Powers and Nicole Powers, his wife, adult individuals who reside at 355 N. 26th Street in Camp Hill, PA 17011. 3. In May of 2008, Plaintiff became aware of an opportunity to purchase a pizzeria business in Summerdale, Pennsylvania. The business was owned by Joe Barone and, following discussions with Mr. Barone, Plaintiff decided to purchase the business. 4. Plaintiff recruited a friend of his family to invest in the purchase of the pizzeria business. That friend eventually dropped out of the project and decided not to invest or become a part owner of the business. 5. In early June 2008, Plaintiff contacted Defendant Brandon Powers to discuss the potential purchase of the business with him. Following those discussions, Plaintiff and Brandon Powers, on behalf of himself and his wife Nicole Powers, reached the following agreement: A. They would pay Joe Barone the total purchase price of $110,000.00 for the business; B. Each of them would contribute $10,000.00 cash for the down payment of $20,000.00; C. They would pay the balance of the purchase price owed to Mr. Barone from the profits of the business; D. Plaintiff and Brandon Powers would be equal co-owners of the business and would form a partnership to own the business; E. The business would hire Plaintiff to manage the pizza business and pay Plaintiff a salary of $800.00tweek for those services; and F. Brandon Powers would have an attorney prepare the paperwork necessary to implement the agreement of the parties. 6. In reliance upon the agreement between himself and Brandon Powers, Plaintiff borrowed $10,000.00 and paid that to Joe Barone as Plaintiffs 50% share of the down payment. At the time of that payment, Plaintiff received a receipt or acknowledgment from Mr. Barone of the payment of the purchase price for the purchase of the pizza business. Attached hereto and marked as EXHIBIT A is a copy of the certified check delivered to Mr. Barone and Mr. Barone's handwritten acknowledgment of receipt of that payment toward the purchase price of the pizza business. 7. To Plaintiffs knowledge, the Defendants, or one of them, deposited an additional $10,000.00 with Mr. Barone as their one half of the down payment for the purchase of the business. 8. In reliance upon the agreement of the parties, Plaintiff ceased his employment with another pizza restaurant and commenced work as manager of the pizza business purchased by Plaintiff and Defendants. 9. In reliance upon the agreement between him and the Defendants, Plaintiff invested additional funds and assets in the pizza business which Plaintiff and Defendants have purchased. Those expenditures and contributions consisted of the following: A. The cost of a high velocity commercial fan $134.27 B. Large floor model fan $89.95 C. Signage $495.34 D. Supplies for food handlers $105.00 E. Soft drinks 300.00 Total $1,124.56 10. Defendants never prepared the agreements between Plaintiff and Defendants, as Brandon Powers had promised. 11. Instead of preparing the documents to confirm the agreement between Plaintiff and Defendants, Defendants formed a corporation, apparently titled "Valley Road Restaurant, Inc." and, without Plaintiffs knowledge, completed the payments to Mr. Barone and took ownership of the restaurant business and its assets in the name of that corporation. 12. In late July of 2008, after Plaintiff had worked several weeks as manager of the pizza business, and while Plaintiff was out of town, Defendants advised Plaintiff that they were terminating his services as manager of the restaurant business. 13. When Plaintiff returned to this area, Defendants claimed they were dissatisfied with Plaintiffs services as manager of the company and advised him that they had reduced his work hours and his income. At that time, and for the first time, Defendants disclosed that they had formed a corporation and held title to the business in that corporation. 14. During the conversation described in the foregoing paragraph, Defendants advised Plaintiff that he was still considered an owner of the business, but refused to disclose or specify the percentage of his ownership or to disclose to him the number of shares of stock they were willing to provide to him. 15. Plaintiff advised Defendants that their ownership of the corporation was not satisfactory to him and demanded that he either be recognized as a 50% owner of the business or that the funds and assets that he had contributed to the purchase of the business be immediately returned to him. 16. In response to Plaintiff's demands, Defendants terminated his employment by the pizza business and accused him, falsely, of stealing cash from the business. 17. Defendants have continued to own and operate the pizza business, through their corporation, and have failed and refused to provide any ownership interest in, any share of the profits or other benefits from, or any other accounting for the business to Plaintiff. COUNT I - CONSTRUCTIVE TRUST 18. The averments set forth in the foregoing paragraphs of this Complaint are incorporated herein by reference. 19. Plaintiff made a cash payment to Joe Barone for his share of the down payment of the purchase of the restaurant business. That payment was made prusant to an express agreement between Plaintiff and Defendants that they would jointly purchase the business, that Plaintiff would be a one half owner in the business, and that Plaintiff would serve as manager at an agreed rate of compensation. 20. Defendants breached the oral agreement they had with Plaintiff and have misappropriated the restaurant business to their own use and to the exclusion of Plaintiff. 21. It would be manifestly unjust, unfair, and inequitable to permit Defendants to retain the cash contribution Plaintiff made for the down payment of the business and the other contributions Plaintiff made to the business, without providing to him the 50% ownership interest in the business for which he bargained with Defendants. 22.- Defendants, by their conduct, have been unjustly enriched at Plaintiff's cost and expense. WHEREFORE, Plaintiff prays this court to impose upon the restaurant business, or the corporation which currently owns it, or Defendants themselves, a constructive trust, in favor of Plaintiff, to award to Plaintiff his 50% ownership interest in the business and 50% of its profits. COUNT II = CONTRACT 23. The averments set forth in Paragraphs 1 through 17 are incorporated herein by reference. 24. Defendants breached the contract which the two of them, through Defendant Brandon Powers, made with Plaintiff whereby the parties would acquire the restaurant business. 25. As a result of their breach of the agreement between the parties, Plaintiff has suffered the damages listed above, including the down payment he paid to Mr. Barone and the other contributions he made to the restaurant business. WHEREFORE, Plaintiff demands judgment against Defendants in the amount of $11,124.56, plus interest from and after 31 July 2008, plus costs of suit. 4 a uel L. A Res -)0. Attorney for Plaintiff Supreme Court ID # 17225 525 North 12th Street Lemoyne, PA 17043 (717) 761-5361 I verify that the statements made in this document are true and correct. I understand that any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904 (unsworn falsification to authorities). Date:_ t'0 $ L", /MVV G-710 ANTHON NO THR P EXHIBIT A MEMBERS Pt FEDERAL CREDIT UNION P.O. Box 40 Mechanicsburg, Pennsylvania 17055 eck Purpose SHARE WITHDRAWAL Check# 355269 $10,000.00- 2t XXXXXXX512 KRAUSE,MARYLYN L Effect: 06/20/08 Post: 06/20/08 Tlr: 0366 DUE DATE PRINCIPAL INTEREST FEES NEW BALANCE TRAN AMOUNT SEQ h!, ae receipt for .reference) "L ,'? St MEMBERS 1St FEDERAL CREDIT UNION P.O. Box 40 Mechanicsburg, Pennsylvania- T?0 ? djw-A-,t :ck Purpose SHARE WITHDRAWAL Check# 3552691 ,000.00 .t XXXXX 512 KRAUSE,MARYLYN L Effect: 06/ 0 08 Post: 06/20/08 T1r: 0366 ?lo,aoo DUE DATE PRINCIPAL INTEREST FEES NEW BALANCE TRAM AMOUNT SEQ .e receipt for reference) T • St. MEMBERS 1St FEDERAL CREDIT UNION ;P.O. Box 40' Mechanicsburg, Pennsylvania 170.5.5 -PAY ** Teh Thousand and 00/1 MARYLYN L'KRAUSE . 3 THE ORJOE BARONE RDER . .OF Issued By: Moneyyram Paymwnt Systems, Ino. . P.O.Am 9478,40nnespoNaMN 66460 Dntwee:. Boston We-Dspoatt A TnM Congmy Boston.; MA &709/110• ' 06/20/.08 ' CERTIR'aE-D Payable Only As'06ginaHy•Drawn And When Properly Endorsed MEMBERS •I st . TEDERAL CREDIT-UNION DATE ' AUTHORIZED "AM E -00'060635k6'9 $10,000:00 -•0FF)CIAILHECK •.• • Drawer: MEMBERS 1$T FEDERAL :CREDIT AUNT Of • - .TWO SIGNATURES REQUIRED FOR CHECK OVER 4?T00.00 ' co. EXHIBIT B ANTHONY NORTHRUP, ) Plaintiff ) vs. ) BRANDON POWERS and NICOLE ) POWERS, his wife, ) Defendants ) NOTICE TO DEFENDANTS NAMED HEREIN: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 08-7352 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 SOUTH BEDFORD STREET CARLISLE, PA 17013 TELEPHONE: (717) 249-3166 ANTHONY NORTHRUP, ) IN THE COURT OF COMMON Plaintiff ) PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA VS. ) CIVIL ACTION - LAW BRANDON POWERS and NICOLE ) POWERS, his wife, ) NO. 08-7352 Defendants ) AMENDED COMPLAINT AND NOW comes the above-named Plaintiff, by his attorney Samuel L. Andes, and makes the following Complaint in this matter: 1. The Plaintiff herein is Anthony Northrup, an adult individual who resides in Camp Hill, Pennsylvania, and whose mailing address is P.O. Box 83, Camp Hill, PA 17011. 2. The Defendants herein are Brandon Powers and Nicole Powers, his wife, adult individuals who reside at 355 N. 26th Street in Camp Hill, PA 17011. 3. In May of 2008, Plaintiff became aware of an opportunity to purchase a pizzeria business in Summerdale, Pennsylvania. The business was owned by Joe Barone and, following discussions with Mr. Barone, Plaintiff decided to purchase the business. 4. Plaintiff recruited a friend of his family to invest in the purchase of the pizzeria business. That friend eventually dropped out of the project and decided not to invest or become a part owner of the business. 5. In early June 2008, Plaintiff contacted Defendant Brandon Powers to discuss the potential purchase of the business with him. Following those discussions, Plaintiff and Brandon Powers, on behalf of himself and his wife Nicole Powers, reached the following agreement: A. They would pay Joe Barone the total purchase price of $110,000.00 for the business; B. Each of them would contribute $10,000.00 cash for the down payment of $20,000.00; C. They would pay the balance of the purchase price owed to Mr Barone from the profits of the business; D. Plaintiff and Brandon Powers would be equal co-owners of the business and would form a partnership to own the business; E. The business would hire Plaintiff to manage the pizza business and pay Plaintiff a salary of $800.00/week for those services; and F. Brandon Powers would have an attorney prepare the paperwork necessary to implement the agreement of the parties. 6. In reliance upon the agreement between himself and Brandon Powers, Plaintiff borrowed $10,000.00 and paid that to Joe Barone as Plaintiffs 50% share of the down payment. At the time of that payment, Plaintiff received a receipt or acknowledgment from Mr. Barone of the payment of the purchase price for the purchase of the pizza business. Attached hereto and marked as EXHIBIT A is a copy of the certified check delivered to Mr. Barone and Mr. Barone's handwritten acknowledgment of receipt of that payment toward the purchase price of the pizza business. 7. To Plaintiff's knowledge, the Defendants, or one of them, deposited an additional $10,000.00 with Mr. Barone as their one half of the down payment for the purchase of the business. 8. In reliance upon the agreement of the parties, Plaintiff ceased his employment with another pizza restaurant and commenced work as manager of the pizza business purchased by Plaintiff and Defendants. 9. In reliance upon the agreement between him and the Defendants, Plaintiff invested additional funds and assets in the pizza business which Plaintiff and Defendants have purchased. Those expenditures and contributions consisted of the following: A. The cost of a high velocity commercial fan $134.27 B. Large floor model fan $89.95 C. Signage $495.34 D. Supplies for food handlers $105.00 E. Soft drinks 300.00 Total $1,124.56 10. Defendants never prepared the agreements between Plaintiff and Defendants, as Brandon Powers had promised. 11. Instead of preparing the documents to confirm the agreement between Plaintiff and Defendants, Defendants formed a corporation, apparently titled "Valley Road Restaurant, Inc." and, without Plaintiffs knowledge, completed the payments to Mr. Barone and took ownership of the restaurant business and its assets in the name of that corporation. 12. In late July of 2008, after Plaintiff had worked several weeks as manager of the pizza business, and while Plaintiff was out of town, Defendants advised Plaintiff that they were terminating his services as manager of the restaurant business. 13. When Plaintiff returned to this area, Defendants claimed they were dissatisfied with Plaintiff's services as manager of the company and advised him that they had reduced his work hours and his income. At that time, and for the first time, Defendants disclosed that they had formed a corporation and held title to the business in that corporation. 14. During the conversation described in the foregoing paragraph, Defendants advised Plaintiff that he was still considered an owner of the business, but refused to disclose or specify-the percentage of his ownership or to disclose to him the number of shares of stock they were willing to provide to him. 15. Plaintiff advised Defendants that their ownership of the corporation was not satisfactory to him and demanded that he either be recognized as a 50% owner of the business or that the funds and assets that he had contributed to the purchase of the business be immediately returned to him. 16. • In response to Plaintiff's demands, Defendants terminated his employment by the pizza business and accused him, falsely, of stealing cash from the business. 17. Defendants have continued to own and operate the pizza business, through their corporation, and have failed and refused to provide any ownership interest in, any share of the profits or other benefits from, or any other accounting for the business to Plaintiff. COUNT I - CONSTRUCTIVE TRUST 18. The averments set forth in the foregoing paragraphs of this Complaint are incorporated herein by reference. 19. Plaintiff made a cash payment to Joe Barone for his share of the down payment of the purchase of the restaurant business. That payment was made prusant to an express agreement between Plaintiff and Defendants that they would jointly purchase the business, that Plaintiff would be a one half owner in the business, and that Plaintiff would serve as manager at an agreed rate of compensation. 20. Defendants breached the oral agreement they had with Plaintiff and have misappropriated the restaurant business to their own use and to the exclusion of Plaintiff. 21. It would be manifestly unjust, unfair, and inequitable to permit Defendants to retain the cash contribution Plaintiff made for the down payment of the business and the other contributions Plaintiff made to the business, without providing to him the 50% ownership interest in the business for which he bargained with Defendants. 22. Defendants, by their conduct, have been unjustly enriched at Plaintiffs cost and expense. WHEREFORE, Plaintiff prays this court to impose upon the Defendants any ownership interest they or either of them have in the restaurant business, or any entity that owns the restaurant business, including the proceeds of any sale or other transfer of the business and any profits or income generated by the business, a constructive trust in favor of Plaintiff to protect Plaintiff's 50% ownership interest in the business and its profits or proceeds. COUNT II - CONTRACT 23. The averments set forth in Paragraphs 1 through 17 are incorporated herein by reference: 24. Defendants breached the contract which the two of them, through Defendant Brandon Powers, made with Plaintiff whereby the parties would acquire the restaurant business. 25. As a result of their breach of the agreement between the parties, Plaintiff has suffered the damages listed above, including the down payment he paid to Mr. Barone and the other contributions he made to the restaurant business. WHEREFORE, Plaintiff demands judgment against Defendants in the amount of $11,124.56, plus interest from and after 31 July 2008, plus costs of suit. Samuel L. Andes Attorney for Plaintiff Supreme Court ID # 17225 525 North 12th Street P.O. Box 168 Lemoyne, PA 17043 (717) 761-5361 I verify that the statements made in this document are true and correct. I understand that any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904 (unsworn falsification to authorities). J14 4 Date: _QC) ANTHONY O HRUP CERTIFICATE OF SERVICE I hereby certify that I served an original of the foregoing document upon the counsel for the Defendants herein by regular mail, postage prepaid, addressed as follows: Neil Warner Yahn, Esquire P.O. Box 650 Hershey, PA 17033 Date: 23 February 2009 my M. rkins Secretary for Samuel L. Andes EXHIBIT A A r /I MEMBERS 1St FEDERAL CREDIT UNION P.O. Box 40 Mechanicsburg, Pennsylvania 17055 :ck Purpose SHARE WITHDRAWAL Check# 355269 $10,000.00, t XXX 512 KRAUSE,MARYLYN L Effect: 06/20/08 Post: 06/20/08 Tlr: 0366 DUE DATE PRINCIPAL INTEREST FEES NEW BALANCE TRAM AMOUNT SEQ e receipt for reference) RE BY t f' O? /r' ? r*+/ VVV MEMBERS 1St FUNION `? tL P.O. Box 40 ?V Mechanicsburg, Pennsylvania l> -k Purpose SHARE WITHDRAWAL Check# 355269 A19000.00 XXXXXXX512 KRAUSE,NARYLYN L Effect: 0610A 8 Post: 06/20/08 Tlr: 0366 )UE DATE PRINCIPAL INTEREST FEES NEW BALANCE TRAN AMOUNT SEQ a receipt for reference) inu.d 5y: Moneywim PnyFont sp wm4 Yns.• r • -a y P.O. oaor =wma Vist mO 66480 IiEMBERS 1St. o?. °*. ?° ?;;;0 00 ,00 0355269 FBDBLCItBDIT III?TION y s _ P.& Box 40' -Mechanicsburg, Penns] lyania 170-5.6 06/20/08 ` $10,0001;00 *.* Ten Thousand and 00/10( PO??LAR :PAX -OFFICIA?I. •OHECK ?^?E «IED : Drawer: MEMBER9IST FFAERAL f`REDIT dNlO , -Payable Only As-Odginaff+"DTawn MAKYLYN L KRAUSE . ' And When PrbledY Endorsed : • Two SIGNATLM REOUIRED FOR CHECK oven : ;,sown MEMBERS•ist T1? OR•30B BARONE ; DER -FEDERAL CREDiT.ONION OF co DATE AUTHORIZED $iQ.hATURE?; Neil Warner Yahn, Esquire Attorney I.D. No. 82278 James Smith Dietterick & Connelly, LLP P.O. Box 650 Hershey, PA 17033 Attorneys for Defendants ANTHONY NORTHRUP, ) IN THE COURT OF COMMON PLEAS OF Plaintiff ) CUMBERLAND COUNTY, PENNSYLVANIA vs. ) CIVIL ACTION -LAW BRANDON POWERS and ) NO. 08-7352 NICOLE POWERS, his wife, ) Defendants ) CERTIFICATE OF SERVICE AND NOW, this ? ? day of March, 2009, I, Neil Warner Yahn, Esquire, do hereby certify that I served a true and correct copy of the foregoing Preliminary Objections to Amended Complaint upon the following by depositing the same in the U.S. Mail, first class postage pre-paid at Hershey, Dauphin County, Pennsylvania: SERVED UPON: Samuel L. Andes, Esquire 525 North Twelfth Street P.O. Box 168 Lemoyne, PA 17043 Attorney for Plaintiff c7A--?- Ne* W er Yahn, Esquire Su t D.#82278 r co A5 U C) "n 1[-? ? 4 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted In duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) ANTHONY NORTHRUP, vs. BRANDON POWERS and NICOLE POWERS, his wife No. 08-7352, Civil Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendants demurrer to complaint, etc.): Defendants' Preliminary Objections to Plaintiffs Amended Complaint. 2. Identify all counsel who will argue cases: (a) for plaintiffs: Samuel L. Andes 525 North 12' Street Lemoyne, PA 17043 (b) for defendants: Neil Warner Yahn, Esquire P.O. Box 650 Hershey, PA 17033 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: 29 April 2009 Signature Samuel L. Andes Attorney for Plaintiff Date: 25 March 2009 INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument 3. The responding party shall file their brief 5 days prior to argument 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. ?+`? »?,? '? art ??' l?,4 4 . ? z, ANTHONY NORTHRUP, Plaintiff vs. BRANDON POWERS and NICOLE POWERS, his wife, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 08-7352 PLAINTIFF'S ANSWER TO DEFENDANTS' PRELIMINARY OBJECTIONS AND NOW comes the above-named Plaintiff, by his attorney, Samuel L. Andes, and makes the following Answer to Defendant's Preliminary Objections: 1. Admitted. 2. Admitted. 3. It is admitted that the Defendants so averred but is denied that the averments were accurate or proper. 4. Admitted. 5. Admitted. 6. Denied as stated. Plaintiff requests that this court impose a constructive trust upon the Defendants to hold for the benefit of Plaintiff, pursuant to the orgiinal agreement between the parties, the interests that Defendants appear to have in the corporation which now apparently owns the business which was the subject of the agreement between Plaintiffs and Defendants originally. 7. Although Plaintiff admits that Defendants so averred, Plaintiff denies that the corporation is an indispensable party to this action. This action involves Plaintiff's claim that Defendants' ownership interest in the corporation be subjected to a constructive trust, not that the corporation itself take any action. 8. Admitted. 9. Admitted. 10. Admitted. By way of further answer, Plaintiff repeats that he now seeks a constructive trust be imposed upon the Defendants' ownership interest in the corporation. ? J I 1. Denied. Plaintiff seeks a constructive trust to be imposed upon the interests which the Defendants own in the corporation and any other entity that owns the restaurant business. 12. Denied. The corporation is not an indispensable party and must not be added as a party to this litigation to adjudicate Plaintiff's claims and grant him the remedy he seeks. 13. Denied. Plaintiff has brought this action against the parties with whom he originally dealt and who owe him the ownership interest in whatever entity eventually owns the restaurant business which was the subject of the agreement which Plaintiff and Defendants formed. As such, his conduct is entirely proper and is not cavalier, disingenuous, or improper in any other way. Plaintiff denies that he has "cost the Defendants over $5,000.00 in stolen profits and lost wages" or that Plaintiff has brought this action against the Defendants as a "scare tactic." Plaintiff has brought the action against the parties with whom he contracted and whom owe him the rights he seeks to enforce. WHEREFORE, Plaintiff prays this court to dismiss Defendants' Preliminary Objections and allow this case to proceed on Plaintiff's claim against the Defendants. Samuel L. Andes Attorney for Plaintiff Supreme Court ID # 17225 525 North 12th Street P.O. Box 168 Lemoyne, PA 17043 (717) 761-5361 I verify that the statements made in this document are true and correct. I understand that any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904 (unworn falsification to authorities). Date: 2 Z )qve,? ( 2 j 9 Samuel L. Andes CERTIFICATE OF SERVIE I hereby certify that I served an original of the foregoing document upon counsel for the Defendants herein by regular mail, postage prepaid, addressed as follows: Neil Warner Yahn, Esquire P.O. Box 650 Hershey, Pa 17033 Date: 'I.ei3.09 Amy MI(Harkins Secretary for Samuel L. Andes r _?rc OF 6 f ?f I?" py A: [ Ceti: I PR [ 4 Pi 1' - 1 E i . .z ANTHONY NORTHRUP, PLAINTIFF V. BRANDON POWERS AND NICOLE POWERS, HIS WIFE, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : 08-7352 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT'S TO PLAINTIFF'S COMPLAINT BEFORE BAYLEY, J AND EBERT, J. ORDER OF COURT AND NOW, this -5'-04-, day of April, 2009, the preliminary objection pursuant to Pa. Rule of Civil Procedure 1028(a)(5) of defendants to plaintiffs complaint for non joinder of a necessary party, IS GRANTED. Plaintiff is ordered to join as a defendant the corporation owning the business which is the subject matter of the complaint.' ' In addition to plaintiffs breach of contract claim against defendants, Brandon Powers and Nicole Powers, the complaint seeks the imposition of a constructive trust "upon the restaurant business, or the corporation which currently owns it, or Defendants themselves, a constructive trust, in favor of Plaintiff, to award to Plaintiff his 50% ownership interest in the business and 50% of its profits." If plaintiff is entitled to subject relief, this court could not impose a constructive trust against a corporation that is not a party to the lawsuit. Therefore, the corporation that reportedly owns the restaurant business is an indispensable party. Edgar B. Bayley, J. I ri ?Samuel L. Andes, Esquire For Plaintiff Neil Warner Yahn, Esquire P.O. Box 650 Hershey, PA 17033 For Defendants :sal ' LcL ,at Co P t,es r-4 ?l/30/09 ANTHONY NORTHRUP, Plaintiff vs. BRANDON POWERS and NICOLE POWERS, his wife, Defendants NOTICE TO DEFENDANTS NAMED HEREIN: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 08-7352 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 SOUTH BEDFORD STREET CARLISLE, PA 17013 TELEPHONE: (717) 249-3166 ANTHONY NORTHRUP, Plaintiff vs. BRANDON POWERS and NICOLE POWERS, his wife, and VALLEY ROAD RESTAURANT, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 08-7352 SECOND AMENDED COMPLAINT AND NOW comes the above-named Plaintiff, by his attorney Samuel L. Andes, and makes the following Complaint in this matter: 1. The Plaintiff herein is Anthony Northrup, an adult individual who resides in Camp Hill, Pennsylvania, and whose mailing address is 3511 Walnut Street, Apt. 2 in Camp Hill, PA 17011. 2. The Defendants herein are Brandon Powers and Nicole Powers, his wife, adult individuals who reside at 355 N. 26" Street in Camp Hill, PA 17011 (hereinafter referred to, collectively as "Powers"), and Valley Road Restaurant, Inc., a corporation which Plaintiff believes is organized under the laws of the Commonwealth of Pennsylvania and maintains its offices at 355 North 2e Street in Camp Hill, PA 17011 (hereinafter referred to as "Valley Road"). 3. In May of 2008, Plaintiff became aware of an opportunity to purchase a pizzeria business in Summerdale, Pennsylvania. The business was owned by Joe Barone and, following discussions with Mr. Barone, Plaintiff decided to purchase the business. 4. Plaintiff recruited a friend of his family to invest in the purchase of the pizzeria business. That friend eventually dropped out of the project and decided not to invest or become a part owner of the business. 5. In early June 2008, Plaintiff contacted Defendant Brandon Powers to discuss the potential purchase of the business with him. Following those discussions, Plaintiff and Brandon Powers, on behalf of himself and his wife Nicole Powers, reached the following agreement: A. They would pay Joe Barone the total purchase price of $110,000.00 for the business; B. Each of them would contribute $10,000.00 cash for the down payment of $20,000.00; C. They would pay the balance of the purchase price owed to Mr. Barone from the profits of the business; D. Plaintiff and Brandon Powers would be equal co-owners of the business and would form a partnership to own the business; E. The business would hire Plaintiff to manage the pizza business and pay Plaintiff a salary of $800.00/week for those services; and F. Brandon Powers would have an attorney prepare the paperwork necessary to implement the agreement of the parties. 6. In reliance upon the agreement between himself and Brandon Powers, Plaintiff borrowed $10,000.00 and paid that to Joe Barone as Plaintiff's 50% share of the down payment. At the time of that payment, Plaintiff received a receipt or acknowledgment from Mr. Barone of the payment of the purchase price for the purchase of the pizza business. Attached hereto and marked as EXHIBIT A is a copy of the certified check delivered to Mr. Barone and Mr. Barone's handwritten acknowledgment of receipt of that payment toward the purchase price of the pizza business. 7. To Plaintiffs knowledge, the Defendants, or one of them, deposited an additional $10,000.00 with Mr. Barone as their one half of the down payment for the purchase of the business. 8. In reliance upon the agreement of the parties, Plaintiff ceased his employment with another pizza restaurant and commenced work as manager of the pizza business purchased by Plaintiff and Defendants Powers. 9. In reliance upon the agreement between him and Powers, Plaintiff invested additional funds and assets in the pizza business which Plaintiff and Defendants have purchased. Those expenditures and contributions consisted of the following: A. The cost of a high velocity commercial fan $134.27 B. Large floor model fan $89.95 C. Signage $495.34 D. Supplies for food handlers $105.00 E. Soft drinks 300.00 Total $1,124.56 10. Powers never prepared the agreements between Plaintiff and Powers, as Brandon Powers had promised. 11. Instead of preparing the documents to confirm the agreement between Plaintiff and Powers, Powers formed a corporation, apparently titled "Valley Road Restaurant, Inc." and, without Plaintiff's knowledge, completed the payments to Mr. Barone and took ownership of the restaurant business and its assets in the name of that corporation. 12. In late July of 2008, after Plaintiff had worked several weeks as manager of the pizza business, and while Plaintiff was out of town, Powers advised Plaintiff that they were terminating his services as manager of the restaurant business. 13. When Plaintiff returned to this area, Powers claimed they were dissatisfied with Plaintiff's services as manager of the company and advised him that they had reduced his work hours and his income. At that time, and for the first time, Powers disclosed that they had formed a corporation and held title to the business in that corporation. 14. During the conversation described in the foregoing paragraph, Powers advised Plaintiff that he was still considered an owner of the business, but refused to disclose or specify the percentage of his ownership or to disclose to him the number of shares of stock they were willing to provide to him. 15. Plaintiff advised Powers that their ownership of the corporation was not satisfactory to him and demanded that he either be recognized as a 50% owner of the business or that the funds and assets that he had contributed to the purchase of the business be immediately returned to him. 16. In response to Plaintiffs demands, Powers terminated his employment by the pizza business and accused him, falsely, of stealing cash from the business. 17. Powers have continued to own an operate the pizza business and have failed and refused to provide any ownership interest in, any share of the profits or other benefits from, or any accounting for the business to Plaintiff. COUNT I - CONSTRUCTIVE TRUST 18. The averments set forth in the foregoing paragraphs of this Complaint are incorporated herein by reference. 19. Plaintiff made a cash payment to Joe Barone for his share of the down payment of the purchase of the restaurant business. That payment was made pursuant to an express agreement between Plaintiff and Powers that they would jointly purchase the business, that Plaintiff would be a one half owner in the business, and that Plaintiff would serve as manager at an agreed rate of compensation. 20. Powers breached the oral agreement they had with Plaintiff and have misappropriated the restaurant business and diverted it, apparently, to Valley Road, where they hold and use it for their own benefit and to the exclusion of Plaintiff. 21. It would be manifestly unjust, unfair, and inequitable to permit Defendants to retain the cash contribution Plaintiff made for the down payment of the business and the other contributions Plaintiff made to the business, without providing to him the 50% ownership interest in the business for which he bargained with Powers. 22. Defendants, by their conduct, have been unjustly enriched at Plaintiff's cost and expense. WHEREFORE, Plaintiff prays this court to take one or more of the following actions: A. To impose a constructive trust upon the pizzeria business owned by Valley Road or by Powers. B. To impose a constructive trust upon Powers for their ownership interest in Valley Road; C. To impose a constructive trust upon the profits, cash flow, or any other benefits flowing from the pizzeria business to Valley Road or to Powers. D. To compel the Defendants to account for the operation of the pizzeria business from the time the Defendants, or any of them, first acquired an interest in it. E. Such other matters as may be necessary, fair, or equitable to protect Plaintiff's rights in this matter. COUNT II - CONTRACT 23. The averments set forth in Paragraphs 1 through 17 are incorporated herein by reference. 24. Defendants Powers breached the agreement which the two of them, through Defendant Brandon Powers, made with Plaintiff whereby the parties would acquire the pizzeria business. 25. Defendants Powers diverted the business to Valley Road, a corporation they formed and to which they have apparently transferred all of their ownership in the pizzeria business. 26. Defendants Powers have breached the agreement between them and Plaintiff causing Plaintiff damages as listed in the foregoing portions of this Complaint. WHEREFORE, Plaintiff demands judgment against Defendants Powers in the amount of $11,124.56, plus interest from and after 31 July 2008, plus costs of suit. Samuel L. An s Attorney for Plaintiff I verify that the statements made in this document are true and correct. I understand that any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904 (unworn falsification to authorities). Date: S ?? O C ANTHOkRY NORTHRLfP ?e. p o MEMBERS V FEDERAL CREDIT UNION P.O. Box 40 Mechanicsburg, Pennsylvania 17055 :k Purpose SHARE WITHDRAWAL Check# 355269 $10,000.00' X 512 KRAUSE,MARYLYN L Effect: 06/20/08 Post: 06/20/08 TIrt 0366 )UE DATE PRINCIPAL INTEREST FEES NM BALANCE TRAN AMOUNT SEQ receipt for reference) ?4 j 1,6K d, IW7U \\- 'MEMBERS 1St FEDER.A.L_CREDIT UNION P.O. Box 40 Mechanicsburg, Pennsylvani k Purpose SHARE WITHDRAWAL Check# 355269 XXXX 512 KRAUSE,MARYLYN L Effect: 061 `m"`'n ?lbroUO ,000.00 B Postt 06/20/08 T1rt 0366 EIZ DATE PRINCIPAL INTEREST FEES NEW BALANCE TRAN AMOUNT SEQ receipt for reference) ?7 L J[ ? laved 6y: IY ?n3z- 7P?ynhnt 6?prppw ER. ?7 V . w.w.k. eeot?tr6mwi1 AO U1J003$5269 . V ?E.L? • r? .+ b; _ PHDZUL-E iMrr NION miss #3.0: Box 40' 06120/A8 ' $10A0010 Aeche6ltsburp, Penrisylvanla 1705.- ; AY ** T'eia Thousand and 00/10 , .. o. . . • 0MCIiA1 0iECK Dmwdr,• MEMBERS A:;? DERAL ITx3Ni0)II • • ; { - Eff IFED,.r %,Paga le anlyAs61 inallj -Drawn And When Pr6perly Endersed Two SIWA.rAM M AU= FOR OVER :4i,1w.40• , MARY•L'YN LXRAUSE MEMBERS•Ist MR ORJOE BARONE :FEDERAL CREDMUNION OF COMP r RATE AUTHORIZED Mt.QNATMRE EXHIBIT A CERTIFICATE OF SERVICE I hereby certify that I served an original of the foregoing document upon counsel for the Defendants herein by regular mail, postage prepaid, addressed as follows: Neil Warner Yahn, Esquire P.O. Box 650 Hershey, Pa 17033 Date: !9.1q.cq Amy Harkins Secretary for Samuel L. Andes r n R a a a j r i Liu, (°t; f 'i c. Neil Warner Yahn, Esquire Attorney I.D. No. 82278 James Smith Dietterick & Connelly, LLP P.O. Box 650 Hershey, PA 17033 Attorney for Defendants ANTHONY NORTHRUP, Plaintiff VS. BRANDON POWERS and NICOLE POWERS, his wife, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW NO. 08-7352 ANSWER TO SECOND AMENDED COMPLAINT AND NOW come the Defendants, BRANDON and NICOLE POWERS, husband and wife, (hereinafter "Defendants" collectively and individually "Defendant"), by and through their attorneys, James, Smith, Dietterick & Connelly, LLP, to answer Plaintiff's Second Amended Complaint. 1. Defendants lack sufficient information to confirm or deny the address or information purported as Defendants believed the Plaintiff was incarcerated. To the extent an answer is required, it is denied. 2. Admitted. 3. Admitted in part and denied in part. Defendant is without sufficient information to confirm or deny how the Plaintiff became aware of the opportunity to purchase the business or that he "decided" to purchase the business and therefore the aforementioned is denied and strict proof is demanded at trial. It is admitted that the business was owned by Joseph Baron (aka "Joe"). 4. Defendant is without sufficient information to confirm or deny who the Plaintiff "recruited to invest in the business" and whether that friend "dropped out of the project" and therefore the aforementioned averment is denied and strict proof is demanded at trial. 5. Denied. The forgoing averment constitutes a legal conclusion to which no response is required. To the extent an answer is required it is admitted that Plaintiff contacted Defendant in order to discuss the potential purchase of the business with the Plaintiff, however, it is specifically denied that an "agreement" was reached. To the contrary, Plaintiff's credit was deplorable despite his initial representations of being able to secure financing to advance the acquisition and Plaintiff was unable sign any personal guarantees, nor lines of credit with vendors for delivery of food items. Consequently, Plaintiff s own financial misgivings resulted in his inability to advance the discussions on an acquisition. A. Denied. The forgoing averment constitutes a legal conclusion to which no response is required. It is specifically denied that "they would pay Joe Barone $110,000 of the business" and strict proof is demanded at trial. By way of background, Plaintiff initially broached the intent of acquiring the business, but due to his financial deficiencies and poor credit, Plaintiff was unable to secure financing (including execution of vendor agreement for purposes of purchasing food and equipment essential to operate the business). As a result, Defendant advanced the acquisition without the Plaintiff of which he was fully aware. B. Denied. The forgoing averment constitutes a legal conclusion to which no response is required. To the extent an answer is required, Plaintiff initially broached the intent of acquiring the business which included a down payment, but during the period of due diligence, Plaintiffs own financial deficiencies thwarted Plaintiff's own abilities to advance the matter. As a result, Defendant advanced the acquisition without the Plaintiff of which he was fully aware. C. Denied. The forgoing averment constitutes a legal conclusion to which no response is required. To the extent an answer is required, the balance of the purchase price was to be paid by a loan taken out by the Defendants from Mid Penn Bank which required personal guarantees. Plaintiff was unable to advance the acquisition because his credit was deficient and unable secure a loan. Joe Barone was desirous to receive cash on the barrel for the sale of his business and did not want to advance a seller financed deal. D. Denied. The forgoing averment constitutes a legal conclusion to which no response is required. To the extent an answer is required, the Defendants advanced the discussions as a corporation to assure the limited liability as a corporation (which is not offered to a partnership), but due to the Plaintiff's own financial misgivings, Plaintiff was unable to advance the purchase. E. Denied. The forgoing averment constitutes a legal conclusion to which no response is required. To the extent an answer is required, it is denied that business would hire the Plaintiff and no such employment contract exists. F. Denied. Brandon was never to have an attorney prepare paperwork in regards to an agreement between him and the Plaintiff. 6. Denied. Defendant is without sufficient information as to how the Plaintiff executed a check or borrowed monies for a payment of $10,000 and as a result it is denied. 7. Denied. The forgoing averment constitutes a legal conclusion to which no response is required. To the extent an answer is required, it presupposes an agreement was reached to purchase the business by and between the Plaintiff and Defendant to which no document has been produced. 8. Denied. The forgoing averment constitutes a legal conclusion to which no response is required. To the extent an answer is required, it is denied that the Plaintiff ceased his employment with another pizza restaurant in order to work as a manager at Valley Road Restaurant, Inc. 9. Denied. The forgoing averment constitutes a legal conclusion to which no response is required. To the extent an answer is required, it is denied that the Plaintiff purchased the alleged items in reliance on an agreement and strict proof is demanded at trial. 10. Denied. The forgoing averment constitutes a legal conclusion to which no response is required and to the extent an answer is required, it is denied that the Defendant agreed to prepare the documents. To the contrary, Plaintiff's credit was in such financial disarray he was unable to advance the purchase and Joe Barone, despite the allegation that he agreed to finance the deal, desired "cash on the barrel". 11. Denied. The forgoing averment constitutes a legal conclusion to which no response is required, provided however, to the extent an answer is required, it is denied that the Defendant agreed to prepare the documents and it is specifically denied that an agreement was reached. By way of further answer, Defendants formed Valley Road Restaurant, Inc and completed payment to Mr. Barone in order to take ownership of the restaurant and its assets. Moreover, when the Defendants created Valley Road, Plaintiff had prior knowledge of them doing so and requested he work as a manager at the business when he learned he would be unable to secure financing to participate in the acquisition. 12. Admitted in part and denied in part. It is admitted that the Plaintiff worked as manager of the business and was terminated, however, during Plaintiffs vacation, Defendants observed a disparity in the profits. It is specifically denied that this was the first time Plaintiff become aware of the corporation. 13. Admitted in part and denied in part. It is admitted that the Plaintiff worked as manager of the business, however, Plaintiff self dealt gross profits from the business resulting in his termination as an employee at will 14. Denied. The forgoing averment constitutes a legal conclusion to which no response is required. It is strictly denied that Plaintiff was an owner of the business. 15. Denied. It is specifically denied that the Plaintiff was an owner in the business and the alleged demands. 16. Admitted in part, Denied in part. It is admitted that Plaintiff was terminated by the Defendants. The remaining averments are denied, in particular, that the Defendants falsely accused the Plaintiff of stealing from the business. Defendants reasonably believe that the Plaintiff has taken approximately $5,000.00 and other assets from the business in stolen profits. 17. Admitted in part and denied in part. The Plaintiff has no right to any ownership interest, share of profits, accounting or any other benefits in the business and in fact, Plaintiff damaged the reputation of the business. Defendants continue to operate the business at a loss. It is strictly denied that there are profits from the business. COUNT I-CONSTRUCTIVE TRUST 18. Acknowledged. 19. Denied. The forgoing averment constitutes a legal conclusion to which no response is required, provided however, to the extent an answer is required, it is denied that the Defendant agreed to prepare the documents and it is specifically denied that an agreement was reached. 20. Denied. The forgoing averment constitutes a legal conclusion to which no response is required, provided however, to the extent an answer is required, it is denied that the Defendant agreed to prepare the documents and it is specifically denied that an agreement was reached. 21. Denied. The forgoing averment constitutes a legal conclusion to which no response is required, provided however, to the extent an answer is required, it is denied that the Defendant agreed to prepare the documents and it is specifically denied that an agreement was reached. All discussion were in the form of intentions conditioned upon securing financing by both parties. 22. Denied. The forgoing averment constitutes a legal conclusion to which no response is required, provided however, to the extent an answer is required, it is denied that the Defendant has been enriched. In fact, Defendants have lost money in the business. COUNT II-CONTRACT 23. Acknowledged. 24. Denied. The forgoing averment constitutes a legal conclusion to which no response is required, provided however, to the extent an answer is required, it is denied that the Defendant agreed to prepare the documents and it is specifically denied that an agreement was reached. 25. Denied. The forgoing averment constitutes a legal conclusion to which no response is required, provided however, to the extent an answer is required, it is denied that the Defendant agreed to prepare the documents and it is specifically denied that an agreement was reached or that the Defendants diverted an opportunity away from the Plaintiff. 26. Denied. The forgoing averment constitutes a legal conclusion to which no response is required, provided however, to the extent an answer is required, it is denied that the Defendant agreed to prepare the documents and it is specifically denied that an agreement was reached. AFFIRMATIVE DEFENSES AND COUNTERCLAIMS 1. STATUTE OF FRAUDS 27. In its present complaint, Plaintiff avers an agreement was formed between the parties and yet, Plaintiff failed to attached any documents purporting to be a contract or agreement setting forth the terms of the alleged agreement. 28. It is clear under the law that a complaint premised on an agreement must be in writing to be enforced and it is apparent from the face of the complaint that the cause of action must be dismissed as the statute of frauds is applicable. WHEREFORE, Plaintiffs Complaint clearly violates the statute of frauds and must be dismissed. COUNTERCLAIM COUNT I- UNCLEAN HANDS 29. Defendants incorporate herein by reference paragraphs 1 through 28 of their answer and new matter herein by reference as if set out in full. 30. Plaintiff knows there was never a finalized agreement between him and Defendants to co-own the business. 31. Plaintiff shouts at the rain because his own financial misgivings resulted in his inability to advance the matter. 32. Plaintiff self dealt monies from the business in retaliation for his inability to proceed with an agreement to acquire the business. 33. Plaintiff is aware that he was never to receive a 50% interest in Valley Road. 34. Plaintiff was unable to obtain any credit on his own. 35. Plaintiff took money from the Defendants while working for them and furthermore demands payment for something that he never owned. 36. Plaintiff had prior knowledge of the Defendants forming Valley Road and now portrays himself as if he knew nothing. 37. While working as manager at the business, Plaintiff hired multiple incompetent people (including his own "friends") who were unable to perform the tasks they were employed to do. 38. Plaintiff was reprimanded about his job performance on multiple occasions by Brandon; often times the reprimanding was in regards to Plaintiff's use of alcohol and not showing up for work. WHEREFORE, it is well established that he who comes into a court of equity must come with clean hands and that one with unclean hands, such as our Plaintiff, shall not be aided by the court and the complaint should be dismissed. COUNTERCLAIM COUNT II-FRAUD 39. Plaintiff took money that did not belong to him during the time that he served as manager at the business. 40. Plaintiff concealed his taking of money from the Defendants and self dealt profits. 41. Plaintiff used his position as manager to effectively take money from the Defendants. 42. Plaintiff never deposited one day's receipts on behalf of the business as required. 43. Plaintiff violated the trust bestowed in him by the Defendants by taking their property. WHEREFORE, it is respectfully requested that due to the unclean hands and fraud by the Plaintiff, Anthony Northrup, the Court dismiss his complaint against Defendants. Furthermore, Defendants demand judgment against Plaintiff in the amount of $5,000 plus interest in regards to the fraud count. / e C Neil Warne Yahn, Esquire Attornev . No. 82278 James Smith Dietterick & Connelly, LLP P.O. Box 650 Hershey, PA 17033 Attorney for Defendants Neil Warner Yahn, Esquire Attorney I.D. No. 82278 James Smith Dietterick & Connelly, LLP P.O. Box 650 Hershey, PA 17033 Attorney for Defendants ANTHONY NORTHRUP, Plaintiff VS. BRANDON POWERS and NICOLE POWERS, his wife, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW NO. 08-7352 CERTIFICATE OF SERVICE I, NEIL WARNER YAHN, Esquire, do hereby certify that I served a true and correct copy of the foregoing ANSWER TO SECOND AMENDED COMPLAINT upon the following below-nam d individuals by U.S. Mail, first class postage prepaid, at Hershey, Pennsylvania this ay of July 2009. SERVED UPON: Samuel L. Andes, Esquire 525 North 12th Street PO Box 168 Lemoyne, PA 17043 ktNERYAHN, ESQUIRE 1. .#82278 I verify that the statements made in this document are true and correct. I understand that any false statements in this document are subject to the p a ' s of 18 Pa. C.S. 4904 (unsworn falsification to authori Date:--T 7 0 OF TH E F C 2699 .;UFO. --'I c : i ANTHONY NORTHRUP, ) IN THE COURT OF COMMON Plaintiff ) PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA VS. ) NO. 08-7352 CIVIL TERM BRANDON POWERS and ) NICOLE POWERS, his wife, ) CIVIL ACTION - LAW Defendants ) PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER AND NOW comes the above-named Plaintiff, by his attorney, Samuel L. Andes, and makes the following Reply to Defendant's New Matter: 1. STATUTE OF FRAUDS 27. Plaintiff admits that there was not a written agreement between the parties. 28. The statements in this paragraph are conclusions of law to which no factual response is required. Nevertheless, Plaintiff denies that the statute of frauds bars his claim. COUNTERCLAIM I. UNCLEAN HANDS 29. No answer required. Plaintiff incorporates herein the averments set forth in his complaint and the preceding paragraphs of this Reply. 30. Denied. To the contrary, Plaintiff knows and believes that there was an agreement between the parties and that he advanced funds in reliance upon that agreement. 31. Denied. Plaintiff does not "shout at the rain." Plaintiff's financial conduct did not result in his "inability to advance the matter." To the contrary, Plaintiff advanced cash in reliance upon the agreement of the parties. 32. Denied. Plaintiff did not "self deal" money from the business in retaliation or otherwise. 33. Denied. Plaintiff believed, and correctly, that he is entitled to a 50 percent interest in the entity. 34. Denied. Plaintiff never applied for credit because the arrangement between the parties was that the seller would finance the purchase for them after they made the initial deposit. 35. Denied. Plaintiff never took money from Defendants while working for them. Plaintiff has not demanded payment for something he never owned. To the contrary, he seeks to either recover the funds he deposited initially for the purchase of the business or to be awarded a one-half interest in the business. 36. Denied. Plaintiff was promised by Defendants that they would form a business entity but he had no direct knowledge of their formation of the entity, and his exclusion from it, other than he has previously disclosed and included in his pleadings. 37. Denied. Plaintiff did not hire incompetent people who were unable to perform their tasks. 38. Admitted in part and denied in part. It is admitted that Brandon Powers "reprimanded Plaintiff' but it is denied that the reprimands were justified or as a result of Plaintiff's use of alcohol or his failure to appear for work. WHEREFORE, Plaintiff demands judgment against the Defendants in accordance with his original complaint. COUNTERCLAIM II. FRAUD 39. Denied. Plaintiff did not take money that did not belong to him. 40. Denied. Plaintiff did not take money, did not conceal money, and did not self-deal in profits. 41. Denied. Plaintiff did not take money, as manager or otherwise, from Defendants. 42. Denied. Plaintiff deposited each day's receipts in accordance with the instructions of the Defendants. 43. Denied. Plaintiff did not take property which belonged to Defendants and did not violate any trust they bestowed in him. WHEREFORE, Plaintiff demands that Defendants' counterclaim be dismissed and that judgment be entered in accordance with his complaint. el L. Andes Attorney for Plaintiff P.O. Box 168 Lemoyne, PA 17043 (717) 761-5361 verify that the statements made in this document are true and correct. I understand that any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904 (unsworn falsification to authorities). DATE: 12 -?- ?? ANTHONY ORTHRUP CERTIFICATE OF SERVICE I hereby certify that on I served a copy of the foregoing document upon counsel for Defendant by U.S. Mail, postage prepaid, addressed as follows: Neil W. Yahn, Esquire P.O. Box 650 Hershey, PA 17033 r ?iuel L. des Attorney for Plaintiff Supreme Court ID 17225 P.O. Box 168 Lemoyne, PA 17043 (717) 761-5361 OF TI-1r fJnr??T Jrac' }T/Y" i 20 DEC 15 P11 2: 2 9 f lJ ANTHONY NORTHRUP, Plaintiff VS. BRANDON POWERS and NICOLE POWERS, his wife, and VALLEY ROAD RESTAURANT, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-7352 CIVIL TERM CIVIL ACTION - LAW PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Samuel L. Andes, counsel for the Plaintiff in the above action, respectfully represents that: The above-captioned action is at issue. 2. The claim of Plaintiff in the action is $11,124.56. The counterclaim of the Defendant in the action is $5,000.00. The following attorneys are interested in the case (s) as counsel or are otherwise disqualified to sit as arbitrators: Neil W. Yahn WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully Submitted, ORDER OF COURT AND NOW, , 2010, in consideration of the foregoing petition, Esquire, and , Esquire, and Esquire, are appointed arbitrators in the above captioned action (or actions) as prayed for. BY THE COURT, J. FILE U, THE Z?14 JAe? ?? .?-: ? .?• v u ANTHONY NORTHRUP, ) IN THE COURT OF COMMON PLEAS Plaintiff ) OF CUMBERLAND COUNTY, PENNSYLVANIA vs. ) NO. 08-7352 CIVIL TERM BRANDON POWERS and ) NICOLE POWERS, his wife, and VALLEY ) CIVIL ACTION - LAW ROAD RESTAURANT, INC., ) Defendants PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Samuel L. Andes, counsel for the Plaintiff in the above action, respectfully represents that: The above-captioned action is at issue. 2. The claim of Plaintiff in the action is $11,124.56. The counterclaim of the Defendant in the action is $5,000.00. The following attorneys are interested in the case (s) as counsel or are otherwise disqualified to sit as arbitrators: Neil W. Yahn WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully Submitted, ORDER OF COURT AND NOW, , 2010, in consideration of the foregoing petition, Esquire, and Esquire, and J. ge_ Esquire, are appoin d itrators in the abov captioned action (or actin ) as prayed for. BY THE COURT, J. ALED-+J? "f ;E OF II-EE" PP,(`Ti'.)NOTARY COO, 2010 JAN 11 AM 8: 42 CUIM "1i__ `i1 V 1 I ?[iVtV?i?tjr NIA //,/, 0- a J Rik! ?, . ? `-Z" l AK 1 LV6M,/ MQIA1 20 Plaintiff Br4 4o j fO L(?rS 4auKrS )LAS CN P2 , 4 pefen - -R - .1ti --- kf-5 badant In The Court of Common Pleas of Cumberland County, Pennsylvania No. 6? - 736? ? 3 165 2 Civil Action - Law. Oath We do solemnly swear (or affirm) that we will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that we will discharge the duties of our office with fidelity. -4 /%X$ Signature f Ick"'A 43 5tewa.• L Name (Chairman) 1b V460 -% >ry.,, Stcww?r txhd ne° Law Firm i e p AQ UE4AI£ VET Name L A-W C FH cf -TAc4 u ila ?Q Y £iZZN Law Firm Signature Name Law Firm 201 M-4.,k?rsx 90Y (01 yq S. 14AAovyxsT- Address Address Address n City, zip city, zip city, zip /11131 Award /258 , We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the 1-1144 l 10 following award: (Note: If damages for delay are awarded, they shall be separately stated.) =:Zey'l Wqe ?•„dam th C-dVor A,k Ueh 's4- +1,e. `[?ro,olanl•'" ?ra?+do,.l dowers ??; ?>1c aw?o?a1 0? -Tei•Thow?RMd ?.6?/a?4oo? ?v(lan? CXnt? We- 'F%-4 Ih fQVOr' OF QbUiw?' Vallee ?OaA Restav?a??' ?.?c ?w ?t ti c a ?.,.,ov„t" D (-' $.t, I L? ?s? VD& 0 h - ; Covwt'Prc%CA t M W 'IC I MCA Date of Hearing: 16 Date of Award: f /0 N t Co 1-4- wo w ? R (Chairman) Notice of Entry of Award Now, the day of , ?01at ?.M., the above award was entered upon the docket and notice erso Seri by=mail to the parties or their attorneys. Arbitrators' compensationlo_be paid ul5& appeal: By: Prothonotary_ Deputy OF THE PRO DRY 2010 JUN -9 AM 11: z5 U?t ? s -I', ?:JUNTY P&INSYLVANIA u,p (?.Opt e,& 4,/<< jw Mgt&=L Airs, q?? i f=ly :?, _, : 20[10 j_ 2J f l i f r , s y f 1 ANTHONY NORTHRUP, ) Plaintiff ) VS. ) BRANDON POWERS and ) NICOLE POWERS, his wife, and ) VALLEY ROAD RESTAURANT, INC., ) Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-7352 CIVIL TERM CIVIL ACTION - LAW PRAECIPE TO THE PROTHONOTARY: Please enter judgment in favor of the Plaintiff Anthony Northrup and against the Defendant Brandon Powers in the amount of $10,000.00 and in favor of the Plaintiff Anthony Northrup and against the Defendant Valley Road Restaurant, Inc., in the amount of $1,124.56, all in accordance with the Award of Arbitrators in this matter dated 8 June 2010. 14 July 2010 Samuel L. Andes Attorney for Plaintiff Supreme Court ID # 17225 525 North 12"' Street P.O. Box 168 Lemoyne, Pa 17043 (717) 761-5361 ?K?- 8a8 mc.4t e. ,nxt