The URL can be used to link to this page

Home My WebLink About09-3868IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DD No. 07'bg IViI?°t>? Civil Action - (X) Law ( ) Equity ACS International Resources, Inc. Ajilon Consulting 1290 Baltimore Pike, Suite 118 2"d Floor Chadds Ford, PA 19317 5001 Louise Drive Mechanicsburg, PA 17055-6912 and Subrata Ghosh vs. 2266 Pimmit Run Lane Falls Church, VA 22043 and World Bank 1818 H Street NW Washington D.C.20433 Plaintiff(s) & Address(es) PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF SAID COURT: Please issue writ of summons in the above-captioned action. Defendant(s) & Address(es) Writ of Summons shall be issued and forwarded to (X) Attorney ( ) Sheriff Kathleen Misturak-Gin ich, Esquire Daley Zucker Meilton Miner & Gingrich, LLC 1035 Mumma Road, Suite 101 Signature of Attorney Wormleysburg, PA 17043 (717) 724-9821 Supreme Court ID No. 41682 Names/Address/Telephone No. of Attorney Date: June 8, 2009 WRIT OF SUMMONS TO THE ABOVE-NAMED DEFENDANT(S): Ajilon Consulting, Subrata Ghosh and World Bank YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF(S) HAS/HAVE COMMENCED AN ACTION AGAINST YOU. 5 r onotary Date: by putt' ( ) Check here if reverse is issued for additional information. O OF &'POWA3?ARY 2009 JUN 10 PM 3: 58 CU M6.1 :, rti ice' {-,", UNi ]! Pr-Nt, SY..VAN IA $ ?S. SO iPb AT'N ei(.* 3ago px* aaco Sao Sheriffs Office of Cumberland County R Thomas Kline a'Otr of umb'I'l Edward L Schorpp Sheriff 4, ? Solicitor Ronny R Anderson " Jody S Smith Chief Deputy OFFICE OF rNE SHERIFF Civil Process Sergeant SHERIFF'S RETURN OF SERVICE 06/12/2009 02:09 PM - Mark Conklin, Deputy Sheriff, who being duly sworn according to law, states that on June 12, 2009 at 1409 hours, he served a true copy of the within Writ of Summons, upon the within named defendant, to wit: Ajilon Consulting, by making known unto Toni Lehman, Administrative Assistant at 5001 Louise Drive, Floor 2 Mechanicsburg, Cumberland County, Pennsylvania 17055 its contents and at the same time handing to her personally the said true and correct copy of the same. SHERIFF COST: $37.00 SO ANSWERS, June 15, 2009 2009-3868 ACS International Resources v Ajilon Consulting R THOM/KK/LI, RIFF puty SC': rv =c V n, THORP REED & ARMSTRONG, LLP Barry L. Cohen, Esquire Attorney I.D. No. 68864 bcohen@thorpreed.com Lisa Carney Eldridge, Esquire leldn'dge@thorpreed.com Attorney I.D. No. 62794 One Commerce Square 2005 Market Street, Suite 1000 Philadelphia, PA 19103-7041 Phone: (215) 640-8500/Fax: (215) 640-8501 ACS INTERNATIONAL RESOURCES, Plaintiff, V. ARLON CONSULTING and SUBRATA GHOSH and WORLD BANK, Defendants. Attorneys for Defendant, Ajilon IN THE COURT OF COMMON OF CUMBERLAND COUNTY, PENNSYLVANIA No. 09-3868 Civil Term CIVIL ACTION - LAW ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter our appearance as co-counsel on behalf of Defendant, Ajilon the above captioned matter. THORP REED & ARMSTRONG, BY: LARRY L. COHEN LISA CARNEY ELDRIDGE Attorneys for Defendant, Ajilon One Commerce Square 2005 Market Street, Suite 1000 Philadelphia, PA 19103-7041 215-640-8500 (Phone) 215-640-8501(Fax) PLEAS in Consulting (P0059825) ILED 2009 Jw o 25 r` a 26 _A Kathleen Misturak-Gingrich, Esquire Attorney I.D. #41682 Daley Zucker Meilton Miner & Gingrich, LLC 1035 Mumma Road, Suite 101 Wormleysburg, PA 17043 (717) 724-9821 ACS INTERNATIONAL RESOURCES, INC Plaintiff, V. ARLON CONSULTING Defendant, and SUBRATA GHOSH Defendant, and WORLD BANK Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO: 09-3868 CIVIL ACTION- LAW AFFIDAVIT OF SERVICE Kathleen Misturak-Gingrich, Esquire, being duly sworn according to law, deposes and says that she is an attorney at law duly authorized to practice in the Commonwealth of Pennsylvania, and that on the 19th day of June, 2009, she did serve upon Subrata Ghosh, a Defendant in the foregoing case, a true and correct copy of the Writ of Summons by sending it to him, via Certified Mail, Return Receipt Requested, at 2266 Pimmit Run Lane, Falls Church, Virginia 22043. The signed green card accepting said Writ of Summons is attached. DALEY ZUCKER MEILTON MINER & GINGRICH, LLC I flittgti?? Date: July _?_, 2008 By: Kathleen Misturak-Gingrich, Esquire Attorney I.D. #41682 1035 Mumma Road, Suite 101 Wormleysburg, PA 17043 (717) 724-9821 kgin rg ichkdzmmglaw.com COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND ss: On this, the b?hday of 2009, before me, the undersigned officer, personally appeared Kathleen Mis -Gingrich, Esquire known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument and acknowledged that she executed the same for the purpose therein contained. N A Y PUBLIC ¦ cComplete items 1, 2, and 3. Also complete horn 4 If Restricted Delivery Is desired. ¦ Pont your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the mailpieoe, or on the front if space permits. 1. Article Addressed to: Mc. 60i0cc..*66 C-A%03)1 as GG paves -+ Rom 1» &0C. F.au Gtiv??1 ,\jA as oy 3 COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL Janet M. Fisher- Notary Public Lower Paxton Twp., Dauphin County p--... AMISSION EXPIRES OCT. 19, 2012 A. Sig ature e X ?Agot. ? Add B. Received by (Printed ) DBot D. Is delivery address different from Ren(1? ? Yes If YES, enter delivery address below: ? No, 3. Service Type 04- ified Mail O Bpress Mail ? Registered ? Return Receipt for MercharKbe ? Insured Mail ? C.O.D. 4. Restricted Delivery? (Extra Fee) ? yes 2. AmideNAmiber 7007 3020 0001 1067'81377 (rhVMtir ftm so woo low Ps Form 3811, February 2oo4 1301; fo FlNasslMsri'R 102595-024A-150 OF THE 2009 JUL -7 A E! f !Y Kathleen Misturak-Gingrich, Esquire Attorney LD. #41682 Daley Zucker Meilton Miner & Gingrich, LLC 1035 Mumma Road, Suite 101 Wormleysburg, PA 17043 (717)724-9821 ACS INTERNATIONAL RESOURCES, INC. Plaintiff, v. AJILON CONSULTING Defendant, and SUBRATA GHOSH Defendant, and WORLD BANK Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO: 09-3868 CIVIL ACTION- I.AW VIT OF SERVICE Kathleen Misturak-Gingrich, Esquire, being duly worn according to law, deposes and says that she is an attorney at law duly authorized to practi a in the Commonwealth of Pennsylvania, and that, pursuant to Pa. R.C.P. 404, on the 19~' day of une, 2009, she did serve upon World Bank, an out-of--state Defendant in the foregoing case, a sending it to Benito Go, Senior Information and correct copy of the Writ of Summons by r of World Bank, via Certified Mail, Return Receipt Requested, at 1818 H Street NW, Wash Receipt Requested tracking slip showing the ti Exhibit "A" and incorporated by reference. We DC 20433. The Certified Mail, Return number for the mailing is attached as been advised by the United States Postal Service that the signed green card accepting said Whit of Summons was lost in the mail; however, attached is the United States Post Office's copy of~ the signature of a World Bank representative who accepted service. This document shows the tracking number from the certified mail and states that the Writ of Summons was delivered to Date: July 15, 2008 By: 1035 Worn (717) COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Bank on June 30, 2009. ZUCKER MEILTON & GINGRIGH, LLC nos 1 ~9~-- Misturak-Gingrich, Esquire I.D. #41682 rnma Road, Suite 101 sburg, PA 17043 ~-9821 . ss: On this, the ti~~~ay of ~u.1 ~ 20 9, before me, the undersigned officer, personally appeared Kathleen M'<sturak-Gingrich, squire known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument and acknowledged that she executed the same for the purpose therein containe . ~~ NO AR PUBLIC COMMON`NEALTtI Qr P'cNNSYLVANIA N OTARlAL SEAL Janet M. 1=tsher-Notary Public Lower Paxton Twp., Daupi~in County MY COMMISSION EXPIRES OCT. 19, 20121 EXHIBIT"A" UPS -Track & Confirm }ty1N~t7}~E~j{D' STATES , rf 1 &? rr sr 5~111t,~+r Page 1 of I H.gme I H~Ip I Sign._In. __ 1 Track 8 Confirm FAQs T'r~ck fan#irm arch Results Label/Receipt Number: 7007 3020 0001 1087 8060 _... __.__.___ _,~,. Service(s): Certified Mail' Trask ~t Cc-rtfitta _ Status: Delivered Enter Label/Receipt Number. __ __ _ _ Your item was delivered at 4:02 AM on June 30, 2009 in ASHINGTON, --- -- DC 20433. ~>''i Detailed Results: • Delivered, June 30, 2009, 4:02 am, WASHINGTON, D 20433 ^ Notice Left, June 29, 2009, 11:16 am, WASHINGTON DC 20433 • Arrival at Unit, June 29, 2009, 10:03 am, WASHINGT N, DC 20022 • Missent, June 20, 2009, 6:50 am Notificafiort Options Track 8~ Confirm by email _,,, Get current event information or updates for your item se t to you or others by email. t~ 6a~ ~ ~~ irv.do 7/14/2009 Stle._Map customer Service Farms t;~oJt Services careers Pnyacy_Policy Teems of_Uise.. Busrness._Gustomer_.G...atew.ay CopyrightU 2009 LISPS. Ali Rights Reserved. No FEAR Act EEO Data FOIA http://trkcnfrm 1. smi.usps.com/PTSInternetW IIirect Query -Intranet '~ Page 1 of 1 Track/Confirm - Intr~net Item Inquiry Item Number: 7007 30 0 0001 1087 8060 This item was delivered one 06/30/2009 at 04:02 nature• .~,_,,,, Iress: v 9~~ ,~ .~ ' ~~ ~, ~. ` ~"~ Enter Request Type and I Quick Search r Exte :m Number: sive Search r Version 1 0 Inquire on mutt Go to the Product Trackinc m Home Paoe. https://pts.usps.gov/pts/imageView.do 7/14/2009 r r«~ 2G~9.1.iL i 7 P~°~ ~~ ~ G _ :,; w~..~y~4~:. ~~ ~` Rover Cooper Cohen Braunfeld LLC Barry L. Cohen, Esquire 101 West Elrn Street, Suite 220 Conshohocken, PA 19428 {': w.,484) 362-2628; 1 : (484) 362-2630 Attorne~~s for Defendant, Ajilon Consulting ACS INI'1?RNATTONAL, RL,SOURCES, ) 1N THE COUR"1 OF COMMON PI,E:AS [iVC_ ) OF CLJMBF,Rl1AND COUNTY Nlaintiff ) ~ . ) Civil ,Action No. 09-3868 AlIL.ON CONSULTIPJG, SUBRATA GHOSH, ) and WORLD BANK, ) Defendants. ) PRAECIPE FOR ENTRY OF APPEARANCE 1,0 I'IIF. PROTIIOI\'OTARY/CLERK OF SAID COURT': Enter m~~ appearance on behalf of Defendant, Ajilon Consulting. Papers may be served at the address set forth below. Royer Cooper Coh~- Sraunfetd Ll,~~ Barry I .Cohen, Esquire Attorney Identification Number: 068854 October 2~. 2012 bcohen(cr~,rccblaw.com 101 Wcst Ehn Street, Suite 220 Conshohocken, PA 19428 7: (484) 362-2628; F (484) 362-2630 Attorneys for Defendant, Ajilon Consulting PRAECIPE FOR WITHDRAWAL OF APPEARANCE (Rule 1012(b)(2)(i)) CO .~ HIv PROTHI~NtJ'iAR~Y/CLERK OF SAID COURT: Withdra~r my appearance on behalf of Defendant, Ajilon Consulting, Bury L. Cohen has entered his appearance for the aforementioned party. I hereby certify that trais change of attorney is not intended ~o, nor will ii delay this procee ding to the best of my knotivledge, information and belief. 1 I ~, 1 _ Date: r 7,~~_~ ~/L- Signature: ~ ~~~,~ ;~;~`~; .:,~ ---- _.. Printed Nam I_.isa Eldridge, Esquire,'' 11 Chorp Keed &. Armstrorig;'L_J.,P OD06b8 /6.v 1 Royer Cooper Cohen Braunfeld LL.C Barry 1,. Cohen. Esquire Attorney I.D. No. 68864 OI V~'est Elm Street, Suite 220 Conshohocken, PA 19428 "l: (d8~) 36?-2628:. 1~`: (484) 362-2630 AUorney for Defendant, Ajilon Consulting ACS IN"1'E;RNATIONAL RESOURCES, INC. Plaintiff, A.IILON CONSUL."hINC;. SUBRATA GHOSH, and ~~'ORLD BANK. Defendants. 1, t, IN "I'HE COURT OF COMMON F~I.I~AS OF CUMBF,RLAND COUN'I~Y Civil Action No. 09-3868 RESPONSE OF DEFENDANT AJILON CONSULTING TO RULE TO SHOW CAUSE ,AND NOW', conies Ajilon Consulting (`Ajilon"), by and through its undersigned counsel who responds to this Petition of ,ACS International Resources, Inc. (`'AC'S'";~ to Enforce Settlement A~~reement ("Petition") as follows: 1. .Admitted in part and Denied in part. Upon information and belief, i~t is admitted only that Ajilon was served with the Writ of Summons on June 12. 2009. Ajilon is without sufficient knowledge or information to form a belief as to the truth of the remainder of the averments contained within paragraph I, which are therefore denied. Strict proof of ACS' remaining allegations are therefore demanded. ?. Denied. The averments contained in paragraph 2 of ACS' Petition constitute conclusions of law to which no response is required and is therefore denied and strict proof of the same is demanded. By way of further response, the alleged employment agreement is bet~ti~ccn ~~,CS and t~~ party other than Ajilon. Furthermore, since ACS only filed a Writ ol~ Summons and never tiled its Complains, Ajilon is unclear as to ACS' allegations. ooo66s~3~~~ ~. Admitted in part and ]Denied in part. It is admitted that Ajilon hired Ghosh. "hhc remaining Allegation contained in paragraph 3 of ACS' Petition constitute conclusions of law to which no response is i:•equired and is therefore denied and strict proof of the same is demanded. 4. Admitted in part and Denied in part. It is admitted that ACS attached a copy of the ,lul~~ ~, 2007 Notice of Breach Fetter ("July 3 Letter'') to its Petition. Fay ~~ ay of further response, the July 3 letter is a written document that speaks for itself and any other description or implication of same, in whole or in part, is therefore denied. ~. Admitted in part and Denied in part. It is admitted that ACS attached a copy of a July 22~, 20U7 Letter to Ajilon, World Bank and NITT ("July 28 Letter") to its Petition. Fay way of further response, tl-~e .1uly 28 Letter is a written document that speaks for itself and any other description or implication of same, in whole or in part, is therefore denied. 6. Denied. By way of further response, Ajilon is without sufficient knowledge or information to form a belief as to the truth of the averments herein, which are therefore denied. Strict proof of ACS remaining allegations are therefore demanded. 7. Denied. By way of fi.~rther response, Ajilon is without sufficient knowledge or intormatior~ to form a belief as to the truth of the averments herein. ~~~hich are therefore denied. Strict proof~~~t~/1C'S' remaining allegations are therefore demanded. K. Admitted in part acid L>enied in part. Ajilon initially offered funds to ACS which were not accepted by ACS. The remaining allegations are denied as conclusions of la~~~ to which no response is required and strict proof of the same is demanded. ~~. Admitted. By way of fiirther response, the $2,600 settlement offer made by Ajilon was contingent on the full and final waiver and release of claims by all parties. (I::x. "F,'" to ACS Petition) 000668]3-v7 2 10. Admitted in part and Denied in part. It is admitted that ACS attached a copy of the October 12, ?007 I_,etter to Sanjay Malhotra, Inquire ('`October 12 Letter") to its Petition. !t is iiu~ther admitted that the October 12 letter reflects that AC'S rejected the $2.00 settlement oftcr. By ~r~ay of flu•ther response, the October 12 Letter is a written document i:hat speaks for itself and any other description or implication of same, in whole or in part, is therefore denied. Further, the remaining allegations are denied as conclusions of law to which no response is required and strict proof of the same is demanded. 1 1. Admitted in part and Denied in part. It is admitted that ACS attached a copy of the No~~ember 2. 200 i Letter to Jeffrey Gordon, Esquire ("November 2 Letter") to its Petition. It is further admitted that the November 2 Letter contains the quote stated in paragrapl~i 12 of ACS' Petition. It is admitted that Attorney Gordon"s claim of representation preceded the filing of the Writ of Summons and was in response solely to ACS' demand letter. It is specifically denied that the quote stated in paragraph 12 of ACS' Petition, as originally drafted, was underlined. By was of~ fw~ther response. the November 2 Letter is a written document that speaks for itself and any ether description or implication of same, in whole or in part, is therefore denied. The remaining allegations are denied. 1?. Admitted in part and Denied in part. It is admitted that AC'S attached a copy of the N~~~ember ;0. 2007 Letter to Attorney Gordon ("November 30 Letter") to its Petition. Ii is further admitted that ACS" counsel responded to Attorney Gordon's correspondence as quoted in paragraph 1 ~' of ACS' Petition. By way of further response, the November 30 I;etteris a written document that speaks for itself and any other description or implication of same, in ~~~hole or in part. is therefore denied. 00066873 vJ 3 1 ;. Admitted in part and Denied. Ii is admitted that the November :~0, :?007 letter requested that Attorney Gordon cona~irm that Ghosh would not insist upon legal representation. f3v ~tiav of further response, the November 30 better is a written document that speaks for itself and anv other description or implicati~.on of same, in whole or in part.. is therefore dcz~lied. 14. Aduiitt:ed in part and Denied. It is admitted that the November ~0. ''007 letter continued settlement negotiations. By way of further response, the November ",0 Letter is a ~~~eitten document that speaks for itself and any other description or implication of same. in whole or in part. is therefore denied. l >. Admitted. l6. Admitted in part and ;Denied in part. It is admitted that ACS attached a copy of the January 8, 2008 Letter to Attorney Gordon (".Ianuary 8 Letter") to its Petition. !t is fiirther admitted that ACS' counsel stated -that the parties must reach an agreement in principle by January ? 1. 2008 or ACS would fnle a lawsuit against all defendants. Fay way of furthc-• response. the January 8 Letter is a written document that speaks for itself and any other description ~~r implication of same, in whole or in part, is therefore denied. ft is specifically denied that gall'" is underlined in the January 8 Letter, as originally drafted. 17. Admitted. 18. Admitted in part and Denied in part. It ~s further admitted that AC'S attached a copy of the February ;~. 2008 Letter to Attorney Gordon ("February 5 Letter'') to its Petition. It is admitted that ACS" counsel rejected Attorney Gordon's counteroffer and advised that ACS intended to take further legal action against all potential parties. include World Bank. [t is speci(icall~ denied that "all" is underlined in the February 5 Letter, as originally dratted. By way 000668~3v2 4 of further response, the February 5 Letter is a written document that speaks for itsclf~ and any other description or implication of same, in whole or in part, is therefore denied. 9. Admitted in part and Denied in part. Upon information and belief'. it is admitted only that .~jilon ~~as served with the Writ of Summons on June 12, 2009. Ajilon is without sufficient knowledge or information to form a belief as to the truth of the remainder of the averments contained within paragraph l9, which are therefore denied. Strict proof ol~ ACS' remaining allegations are therefore demanded. ~'0 Admitted. 1 Admitted. ?2. Denied. By way of :Further response. Attorney Cohen stated on tk~iis telephone com-ersation that any settlement disct.> sion would be for a global release of all. the defendants. ~'3. Admitted in part and Denied in part. It is admitted that ACS" counsel sent a letter to Attc~rnev Cohen me°morialiring the August 28, 2009 conversation and putting forth a $30,000 demand in exchange for full and complete releases of Ghosh, Ajilon, and World Bank. It is further admitted that ACS' counsel asked Attorney Cohen to notify her if the tn~oposal was acceptable. (t is admitted that ACS attached a copy of the August 2, 2009 Lette~~ to Attorney Cohen i~~n.u~,!ust 2 Letter") to its Petition. I3y way of further response, it is specifically denied that .,lttorney Cohen failed to answer any questions that may ha~~e been asked o1~ him on the August 10.:?009 conference call. It is also denied that the August 2 Letter stated that ACS counsel. alone, would work to formalize an agreement, as such letter instead stated that both counsel for ACS and Ajilon would work to formalize an agreement. The August: ~ better is a ~yritten document that speaks for itself and any other description or implication of same. in whole or in part, is therefore denied. ooo66s~ 3 ~Jz s ?~l. Admitted in part and Denied in part. [t is admitted that ACS, counsel sent a facsimile asking Attorney Cohen to contact her no later than December 71. 2009 or she would advisr A('S to proceed with litigation. By way of further response, the Deccrnber l "7, 2009 facsimile is a written document that speaks for itself and any other description or implication of same, in v,-hole or in part, is therefore denied. 25. Admitted upon information and belief. It is admitted that Ajilon made a $2,500 settlement offer in exchange for a release and waiver of all claims against ail defendants, including Ajilon_ Ghosh, and World Bank. In particular, it was made clear to ACS` counsel that ~yhile payment would. be from Ajilon on1_y, a condition of any settlement would be a complete written release of ACS' allegations against all defendants. 26. Admitted in part and .Denied in part. It ~s admitted that ACS attached a copy of the Dccerr~ber 29. 2009 Email to Attorney Cohen ("December 29 Email") to its Petition. It is !iu•ther admitted that ACS rejected the offer as described in Ajilon"~ response to paragraph 25, above. 13v ~~ ay of further response, the December 29 Email is a wa-itten document that speaks for itself and am other description or implication of same, in whale or in part, is therefore denied. 27. Admitted in part and Denied in part. It is admitted that Attorney Cohen advised AC'S counsel that Ajilon authorized him to offer $5,000 and that if ACS wanted any more money then ACS would have to file its Complaint. By way of further response. it is denied that paragraph ~? of ACS' Petition reflects the entire January 12, 2010 conversation, "fhat is, Attornsy Cohen stated during the discussion that the $5,000 offer was conditioned on the release of all the named defendants and a written settlement agreement. ~8. Admitt~;d in part and Denied in part. It is admitted that that ACS' counsel rejected the ~,>.000 offer and again made a $20,000 demand. It is admitted that ACS attached a copy of 000668:13 vJ 6 the .lime ~~0. 2010 Letter to Attorney Cohen (`'June 30 I,etter'~} to its Petition. Rv ~.~a~ oC further response, the June 30 Letter is a written document that speaks for itself and any other description or implication of sarr~e. in whole or in part. is therefore denied. In addition. it should be noted that o~~rr_ 6 _months passed by before ACS' counsel finally responded to Attorney Cohen's serilement offer. ~`~. Admitted in part and Denied in part. It is admitted that ACS attached a copy of the July 13. 2010 Letter to ACS's Counsel ("July 13 Letter") to its Petition. It is finlhcr admitted that the .{ul~ 13 Letter contains the ~Iuote stated in paragraph 2.9 of ACS' Petition.. }3y way of further response, the July 13 Letter is a written document that speaks for itself and any other description or implication of same, in whole or in part, is therefore denied. 1t is specifically denied that the "all" is underlined in the July 13 Letter, as originally drafted. A.jilon made clear in the July 1 > letter that it could re--offer "$5,000 to resolve all claims, subject to a written release ar-tl settlement offer." (emphasis added). The written settlement. was not simply anticipated.. but rather was a condition precedent to any such settlement. 30. Admitted in part and Denied in part. It is admitted that ACS attached a copy of the ~yu~~ust '~, 2010 Letter to Attorney Cohen ("August 24 Letter-') to its Petition. It is further admitted tl-.tat ACS accepted the $5,040 offer conditioned on the drafting of a "Mutual Settlement Agreement between all the parties.'' It is specifically denied that the "all" is underlined in the August 2~~ Later. as originally drafted. It is also admitted that the August 24 Letter conditioned settlement on Ajilon wire transferring the settlement finds within seventy-two hours of execution of the agree°ment. By way of further response, the August 2~I Letter is a written document th~lt speaks 1-or itself and any other description or implication of same. in whole or in part_ is therefore denied. ooo66a~ 3. ~~; 7 > l . Denied. By way of further response, it is specifically denied that Ajilon agreed to the condition noted in the Aug>~~ist 24 Letter. T'he new terms in ACS" August 24`'' counterproposal were conditions that Ajilon had not agreed to and, to date, has never accepted. 32. Admitted in part and Denied in part. It is admitted that ACS' counsel sent the October 25. 2010 email that is attached to ACS' Petition as Exhibit ``P." I he remaining allegations contained in paragraph 32 constitute conclusions of law to which no response is required and is therefore denied and strict proof of the same is demanded. ~3. Admitted in part and Denied in part. It is admitted that ACS attached a copy of the October 29. 2010 Email to Attorney Cohen ("October 29 Email"') to its Petitio~~. By way of fiu~ther response. the October 29 Email is a written document that speaks for itself and any description of same, in whole or in part, is therefore denied. Attorney Cohen never agreed that an "agreement in principle" had been reached in September. To the contrary. Attorney Cohen made clea~° in the July 13 letter that it could re-offer ``$5,000 to resolve all claims, subject to a written r~ ease and settlement offer.'' (emphasis added). The written settlement, was not simply anticipated.. but rather was a condition precedent to any such settlement. In particular. an agreement had not been reached in September as Attorney Cohen's subsequent draft settlement agreement indicates that Ajilon did not accept the new terms posed in ACS' August 24, 2010 proposed settlement agreement. The remaining allegations contained in paragraph 73 constitute conclusions o1~ law to which no response is required and is therefore denied and strict proof o1' the same is demanded. 3-l. Admitted in part and Denied in part. It is admitted that ACS attached a copy of the October ~9. 2010 Draft Settlement Agreement ('`October 29 Draft Settlement Agreement") to its Petition. It is further admitted that that the October 29 Draft Settlement Agreement contains ooo66s1~ ~-z g the quote stated in paragraph 3~ of .ACS' Petition. [t is specifically denied that tkie underlined portion o1~ the quote stated in paragraph 34 oI~ ACS" Petition, as originally drafted, was underlined. By way of further response, the October 29 Draft Settlement Agreement is a written document that speaks for itself and any other description or implication of same. in whole or in part. is therefore denied. ~~. Admitted in part and Denied in part. It is admitted that ACS attached a copy of the '~~oye-~~ber 9, 2010 Revised Draft Settlement Agreement ("November 9 Revised Draft Settlemem .Agreement'') to its Petition. It is further admitted that in the Novcmher 9 Revised Draft Settlement Agreement ACS' counsel added language to make the draft agreement reciprocal and mutual, as well as changed the date and method by which the payment was to be made. It also admitted that Ajilon's counsel advised that it could not wire transle~- the fl.ulds as originally requested. By way of further response. the November 9 Revised Draft Settlement Agreement is a written document that speaks for itself and any other description or implication uf~ same. in whole or in part, is therefore denied. It is further denied that Attorney (_'ohen agreed to reduce the period to send the check from 60 to 10 business days. It is also denied that ACS' counsel sent. an "all changes accepted" version of the agreement. Instead, ACS se-~t a proposed draft settlement agreement proposing additional material terms which included: naming additional parties to the settlement agreement (where the agreement was originally het~~°een ACS and Ajilor as drafted by Attorney Cohen, the parties were expanded by ACS to also include Ghosh and Wo--ld Bank), altering the teens of payment, and removing the confidentiality provision. ~\il such modifications were unilaterally made by ACS without the approval of lljilon. Ghosh and Vv'orld Bank were unrepresented parties a-Zd should not: have been named as ooo6~a~3 ~~ g parties to the November 9 Revised Draft Settlement Agreement as Attorney Cohen could not pro~~ide releases on their behalf. >6. Admitted in part and Denied in part. It is admitted that ACS attached a copy of the January ~. 2011 :Letter to Attorney Cohen ("January 5 Letter') to its Petition. It is further admitted that AC'S' counsel requested an update of his review of the revised agreerr~ent. By way oJ~ l~iirther response, tl~~e .January 5 Letter is a written document that speaks for itseli~ and any other description or implication of same, in whole or in part, is therefore denied. .~7. Admitted in part and Denied in part. It is admitted that Attorney Cohen spoke with ;1CS' cow~sel following the January 5 better. It is specifically denied that this is the first time that .~ltiorney Cohen asserted that he represented Ajilon only. Ajilon is without sufficient knowledge or information to form a belief as to when ACS' counsel first understood that Attorney Cohen represented Ajilon only. By way of further response, the Entry of Appearance b~ Attorney Cohen was only on behalf of Ajilon and he never entered an appearance on behalf of Ghosh ar ~'orld Bank. Once litigation commenced, Attorney Cohen indicated that he was Icgall~ representing Ajilon only. No other attorney ever entered an appearance on behalf of Ghosh or Vl"orld Bank. Further, the October 29, 2010 draft settlement agreement (attached to ACS' Petition as l~hibit '`R") drafted by Attorney Cohen reflects that: it was a settlement agreement between ACS and Ajilon only. Additionally, Attorney Cohen refers to his "c]ient" in the sin~~ula.r in makin~~ the $5,000 offer in the .Iuly 13, x'010 offer letter. Specifically. Attorney Cohen stat d "... I have spoken with i~ client with regard to your renewed demand." r F.x. N. to ACS~s Petition) (emphasis added). ~~. Admitted. It is admitted only that Attorney Cohen indicated to ACS counsel that he did not represent Cihosh or World Bank. It is further admitted that this paragraph is an 0oo66~i 3 ~' 10 ae:knr7~~~ledgment that ACS' Noveanber 9 Revised Draft Settlement Agreement contained material terms and conditions that Ajilon did not accept. ,9. Admitted in part and Denied in Part. It is admitted only that Attorney Cohen indicated to ACS's counsel that he did not represent Ghosh or World Bank. It is specifically denial that this was the first time that Attorney Cohen stated that he did not represent Ghosh nor World Bank. "I~o the contrary, all prior draft settlement agreements proposed by Attorney Cohen indicated That he represented Ajilon and a release was being sought for all defendants. -10. Denied. It is admitted that Attorney Cohen spoke with ACS counsel following the Janua.r~ S Letter. It is specifically denied that this is the first time that Attornev Cohen assented that he represented Ajilon only. Ajilon is without sufficient knowledge o~~ information to form a belief as to when ACS' counsel first understood that Attorney Cohen represented Ajilon only. Bti way of further response, the Entry of Appearance by Attorney Cohen «~as only on hehali' of Ajilon and he never entered an appearance on behalf of Ghosh or World Bank. Once litigation commenced, Attorney Cohen indicated that he was legally representing Ajilon only°. No ether attorney ever entered an appearance on behalf of Ghosh or World Bank. Further, the October ?9. ?010 draft settlement agreement (attached to ACS" Petition as Exhibit "R'") dratted b~~ Attorney Cohen reflects that it was a settlement agreement between ACS and Ajilon o»Iv. Additionally. Attorney Cohen refers to his `client" in the singular in making the $5.000 offer in the <<ufy 13, 2010 offer letter. Specifically. Attorney Cohen stated `'...[have spoken with my rlicnt ~,vith regard to your renewed demand." (Ex. N. to ACS's Petition) (emphasis added). 41. Denied. Ajilon is without sufficient knowledge or information to form a bclief~ as to the mental state of ACS's counsel. ooo66ar~ ~z 11 ~2. Admitt.ed in part and Denied in part. It is admitted that ACS attached a copy of the Fehruarv l l , 20I 1 Settlement Agreement to Attorney Cohen (``February 1 1 Revised Draft Settlement Agreement") to its Petition. By way of further response, the February i ] Revised Draft settlement Agreement is a writ~:en document that speaks for itself and any other description or' implication of same, in whole or in part, is therefore denied. The February 1 1 Revised Draft Settlement Agreement proposed additional terms including additional representations and warranties that Ajilon never previously agreed to. In addition, the confidentiality provision was rcmo~cd fi~om the draft agreement without Ajilon previously agreeing to such removal. 43. Admitted. 44. Admitted in part and Denied in part. It is admitted that Attorney Cohen 1•ejected the settlement agreement given the additional representations and warranties added to the l~ebruarv 1 1 Revised Draft Settlement. Agreement by ACS which Ajilon never accepted. ~~>. Denied. Attorney Cohen made additional revisions to the settlement agreement as ACS' most recent revisions were unacceptable. It is unclear to Ajilon what causes of~action may ha~~e been larought by Ghosh and World Bank against AC'S. ~6. Admitted in part and Denied in part. It is admitted that ACS attached a copy of October 2i. ~'O]l Letter to Attorney Cohen ('October 27 Letter'') to its Petition. ft is Further admitted that the October 27 Letter was sent to Attorney Cohen. By way of further response, the October :?7 fetter is .a written document that speaks for itself and any other description or implication of same. in whole or in part, is therefore denied. ~i. Admitted in part and Denied in part. It is admitted that the October 27. 201 I settlement agreement included a release by Ajilon only. By way of further response, the October 00066813. ; 7 ~ 2 27 letter is a written document that Speaks for itself and any other description or implication of same. in ~~~hole or in part, is therefore denied. 48. Admitted. X49. Admitted in part and Denied in part. It is admitted only that Attorney Cohen called ACS- counsel to indicate that he did not have settlement authority. Given the multiple delays and the fact that settlement discussions on both sides, which took. place over- a year-and- half- time period, were conditioned on a signed mutually agreeable settlement agreement, which never occuirrcd, there was never a settlement. Pursuant 1:o Pennsylvania law oral agreements are not enforceable if a written agreement was a condition of the contract. Kazanjian ~~_ New England C~~I-p„ 332 Pa. Super. 1, 480 A.2d 1153 (1984). __ 50. Denied.. By way of further response, Attorney Cohen entered his appearance only on behalf ~.~f Ajilon. "I~he signing of a written mutually agreeable settlement agreement never occurred because the parties could not agree on terms that were acceptable to both parties. l . Denied. By way of further response, given the multiple delays and the fact that settlement discussions on both sides, which took place over ayear-and-half time period, were conditioned tin a signed mutually agreeable settlement agreement, which never occurred, there was ne~~er a settlement. It is specifically denied that a settlement agreement was entered into on September ~?- 2010. ~~. Denied. 13y way of further response, Attorney Cohen handled this matter in a professional manner that is anything but dilatory, obdurate or vexatious. Ajilon is without sulticient knowledge or information to form a belief as to the truth of the avermem concerning ACS- attorr.~e~ s- fees. >>. Admitted. ooob~si a.~ ~ 13 W'I-~F,RF_',FORE, Ajilon respectfully requests that ACS' Petition be dismissed together ~~~ith its fees and costs and any and all other relief this Court deems fair and just. Ajilon respectfully requests the opportunity to argue the merits of its Response to this Rule to Show Cause r~efore this Court in an oral argument hearing. Octobrr ~ 1. x'012 Respectfully submitted, Royer Cooper Cot~kn Br~unfeld L[,C ,~ ~, a ,/ a ~ ,_.~_ y' ~ / -- Barry L. Cohen, Esq~~ire Attorney ID: 068864 bcohen rccblaw.com 1 O1 West Elm Street, Suite 220 Conshohocken, PA 19428 T: (484) 362-2628: F: (484) 362-2630 Attorney for Defendant, Ajilon Consulting ooo66sa;s ~~ 14 VERIFICATION 1. Barry I_. Cohen, verify that I am the attorney for Ajilon Consulting and .Mate that the facts set forth in the within Response to Rule to Show Cause are true and correct to the best of my knowledge, upon information and belief. Further. I understand that this verification is made subject to the penalties of 18 Pa. C.S.A. X4904 relating to the unsworn falsifications to authorities. By: Barry L,. Cohen, Esquire October 31, ~'l)12 ooobss~3 ~~ CERTIFICATE OF SERVICE l herehv certify that on this 31" day of October, 2012, I caused a n~ue and correct copy of the within Response Of Defendant Ajilon Consulting To Rule To Show Cause to he served to the belo~~ via ~fu-st class mail: Kathleen Misturak-Gingrich, Esquire Daley Zucker Meilton Miner & Gingrich, LLC 635 North 12th Street, Suite lOl Lemoyne, PA 17043 Subrata Ghosh 2266 Pimrnit Run Lane Fells Church, VA 22043 World Bank 1818 H Street, N.W. Washington, D.C. 20433 October 3 1- '0 12 Royer Cooker Cohen Braunfeld [.LC ~ ~ ,~' i Barry ~. Cohen, Esquir~ bcohe~~a~rccblaw.com 101 V4'est Elm Street, Suite 220 Conshohocken, PA 19428 T: (484) 362-2628 F: (484)362-2630 Attorneys for Ajilon Consulting 00066813 vl ACS INTERNATIONAL RESOURCES, INC., Plaintiff v. AJILON CONSULTING, SUBRATA GHOSH, WORLD BANK, Defendants ~~ IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT 2009-03868 CIVIL TERM IN RE: PETITION TO ENFORCE SETTLEMENT AGREEMENT AND NOW, this 8th day of November 2012, upon consideration of Plaintiffs Petition to Enforce Settlement Agreement, and the Response of Defendant Ajilon Consulting to the Rule to Show Cause, ARGUMENT on the Petition is scheduled for 7 December 2012 at 10:30 a.m. in Courtroom No. 6 of the Cumberland County Courthouse, Carlisle, Pennsylvania. Distribution List: / Kathleen Misturak-Gingrich, Esq. 635 N. 12th Street, Suite 101 Lemoyne, PA 17043 Barry L. Cohen, Esq. 681 Moore Road, Suite 321 King of Prussia, PA 19406 ~/Subrata Ghosh 2266 Pimmit Run Lane Falls Church, VA 22043 World Bank 1818 H Street, N.W. Washington, D.C. 20433 ~/t9 %~,s /h,Ac~ ~e~ /l /~~ d Thom . Placey C.P.J. ~ `- 3 rn -~ N o --~ _ ~ z ~~ .c r=- -era r,-, ~n w ~o ° r-~ -+ n~ Zp ~ ter. ~' ~ ~? ~}~ -a --~ ~ ~ ...~ ~G Royer Cooper Cohen Braunfeld LLC Barry L. Cohen, Esquire Attorney I.D. No. 68864 101 West Elm Street, Suite 220 Conshohocken, PA 19428 T: (484) 362-2628; F: (484) 362-2630 Attorney for Defendant, Ajilon Consulting ACS INTERNATIONAL RESOURCES, ) INC. ) Plaintiff, ) v. ) AJILON CONSULTING, SUBRATA GHOSH, ) and WORLD BANK, ) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Civil Action No. 09-3868 Defendants. ) BRIEF IN SUPPORT OF DEFENDANT AJILON CONSULT>[NG'S RESPONSE TO RULE TO SHOW CAUSE I. PROCEDURAL HISTORY AND STATEMENT OF FACTS On June 8, 2009 Plaintiff ACS International Resources, Inc. ("ACS") filed a Writ of Summons against Ajilon Consulting ("Ajilon"), an entity that is no longer in existence; Subrata Ghosh ("Ghosh"), a citizen of India, whose current whereabouts are unknown; and the World Bank. ACS never filed a Complaint and no counsel ever entered their appearance for Ghosh or World Bank. The key issue is that Ajilon and ACS discussed certain settlement options which contained conditions precedent that were never met and open material terms that were never agreed to. ACS then waited years with no attempt to prosecute its case and it was only after being told by the Court on August 31, 2012 that the case would be dismissed on October 30, 2012 for lack of activity did ACS decide to file the present Petition. ' All communications between ACS and Ajilon following the filing of the Writ of Summons and as referenced in this Brief were conducted through their respective outside counsel. ACS spends twenty eight (28) exhaustive paragraphs describing the events which led up to the July 13, 2010 settlement offer made by Ajilon that is the subject of the Petition. The majority of these 28 paragraphs are irrelevant to the issue at hand. In reality, the facts of this matter are rather straightforward. ACS began its allegations of breach of contract long before it filed its Writ of Summons. On July 3, 2007, ACS demanded $16,100 to resolve its claims. (Ex. A to ACS' Petition.) On January 18, 2008, Ajilon offered ACS $16,100 for a full release of all parties. (Ex. B to ACS' Petition.) On February 5, 2008, ACS rejected Ajilon's offer of $16,100. (Ex. J to ACS' Petition.) Over the next two (2) years with the exception of filing a Writ of Summons, ACS took no action to prosecute its claims. In January of 2010 Ajilon offered $5,000 to settle ACS' claims against all parties. ACS then waited six (6) months and on June 30, 2010 it rejected Ajilon's offer. (Ex. M to ACS' Petition.) On July 13, 2010 Ajilon wrote to ACS and offered "5,000 to resolve all claims, subject to a written release and settlement agreement." (emphasis added) (Ex. N to ACS' Petition.) Ajilon specifically did not offer to make payment prior to both parties agreeing on the specific terms of a written release. As indicated in the offer, the necessity of a fully written settlement agreement was a condition precedent to any settlement. ACS did not accept Ajilon's offer as proposed, but rather on August 24, 2010 sent Ajilon a counter-proposal. Specifically, ASC stated that it would settle its claims for $5000 "conditioned" to a "Mutual Settlement Agreement and Release between all the parties...and Ajilon wire transferring the settlement funds into ACS' account within seventy-two (72) business hours of full execution of the Mutual Settlement Agreement and Release." (Ex. O to ACS' 2 Petition.) The 72 hour payment demand was a material component of ACS' new demand that Ajilon never agreed to. Equally important, ACS' Counsel stated: Please advise at your earliest opportunity if we have a settlement as set forth above. In other words, as of August 24, 2010 ACS' Counsel admitted that there was not yet an ' agreed upon settlement. Ajilon never accepted the terms of the August 24`" demand letter. On October 29, 2010 Ajilon sent a new offer via another proposed settlement agreement to ACS. ACS did not accept this, but rather on November 9, 2010 ACS requested edits to certain terms in the proposed settlement agreement. (Ex. S to ACS' Petition.) Many of these requested changes by ACS were critical to the terms of settlement and were never agreed upon. For example, ACS removed the confidentiality provisions of the proposed agreement and ACS changed the payment due date from sixty (60) days to ten (10) days. Yet, in a letter dated January 5, 2011, ACS insisted that if there was agreement that payment would be due in 72 hours.2 Not only was this not agreed to, but ACS' own documents contradict this. Clearly, there was never a meeting of the minds over timing of any payment, which was a condition of ACS' August 24, 2010 demand. Another critical requested change by ACS in its November 9, 2010 proposed agreement was that Ghosh and World Bank would release their claims (whatever they were) and that Ajilon would execute the Agreement on behalf of Ghosh and World Bank. Ajilon was not empowered to execute any agreement on behalf of Ghosh and World Bank and again there clearly was not a meeting of the minds as to the release language that ACS now requested. As such, there still was not an agreed upon settlement agreement. Z In the January 5, 2011 correspondence ACS's counsel stated: "...ACS is anxious to get the Agreement fully executed and this matter settled." 3 On February 11, 2011, ACS acknowledged that there was not a meeting of the minds as to whether or not Ajilon's Counsel also represented Ghosh and World Bank. (Ex. U to ACS' Petition.) Accordingly, ACS made additional requested changes to the proposed settlement agreement. Ajilon did not accept the revised proposed agreement. ACS then waited almost nine (9) months to resume settlement negotiations and on October 27, 2011 ACS forwarded a letter and another revised proposed settlement agreement. (Ex. V to ACS' Petition.) Ajilon did not accept these new terms. More importantly, within its October 27, 2011 letter ACS stated: At this point, ACS is anxious to get the Agreement fully executed and this mattered settled. Thus, as of October 27, 2011, ACS' Counsel admitted that there was not yet a settlement. At this point over four (4) years passed since ACS' initial demand and there was still no agreed upon settlement agreement as evidenced by the fact each side provided a draft release that was unacceptable to the other. On December 8, 2011, Ajilon's Counsel stated that he no longer had any settlement authority explaining that "...given the multiple changes, delays and most importantly the fact that the settlement discussions from both sides-which took place approximately 1 '/2 years ago - were conditioned on a signed written mutually agreeable settlement agreement, which never occurred, there is no settlement." A copy of the December 8, 2011 letter is attached hereto as Exhibit "A". The December 8`h letter also referenced that Ajilon no longer exists as an entity. Interestingly the December 8t" letter memorialized the threat made by ACS in its November 30, 2011 email that it would file a Motion to Enforce Settlement if settlement was not brought to fruition. Despite no further action taken by either party to bring this matter to a resolution over 4 the course of a nine (9) month period, ACS filed its Motion to Enforce Settlement only after being forced by the aforementioned August 31, 2012 Order. II. STATEMENT OF QUESTIONS PRESENTED A. WAS A VALID, ENFORCEABLE CONTRACT FORMED? Suggested Answer: No B. SHOULD ATTORNEYS' FEES BE AWARDED TO ACS EVEN THOUGH AJILON'S CONDUCT WAS NOT DILATORY, OBDURATE, AND/OR VEXATIOUS CONDUCT DURING THE PENDENCY OF THIS ACTION, PARTICULARLY DURING SETTLEMENT DISCUSSIONS? Suggested Answer: No III. ARGUMENT A. A VALID, ENFORCEABLE CONTRACT WAS NOT FORMED Pennsylvania courts have long held that oral settlement agreements may be enforceable without a written document. See Kazanjian v. New England Petroleum Corp., 332 Pa.Super. 1, 480 A.2d 1153 (1984). Moreover, "[w]here parties have reached an oral agreement, the fact that they intend to reduce the agreement in writing does not prevent enforcement of the oral agreement." Id. at 7 (cites Ketchum et al. v. Conneaut Lake Co.,309 Pa. 224, 163 A. 534 (1933)). With that said, it is critical to note that the court in Kazanjian provided that an oral settlement agreement is not enforceable if a writing was a condition of the contract. Id. at 10. The facts of Kazanj ian are not analogous to the facts at bar. Chiefly, the court found that the parties did not intend a written settlement agreement to be a condition precedent to being bound by an oral agreement. Id. at 10-12. Yet, the exact opposite is true in the present matter. For similar reasons, the holding in Mastroni-Mucker v. Allstate Ins. Co. is not binding on this Court as the court found that the parties did not condition settlement on the execution of a 5 release. 2009 Pa.Super. 101, 976 A.2d 510 (2009) In fact the entire holding of Mastroni- Mucker turned on the decision of whether or not the offeree requested the form of the release as a condition precedent to the settlement itself. Id. at 522. The Superior Court found that such was not a requirement and therefore the oral agreement was enforceable. However, the facts of this case are also the exact opposite as there is a clear writing in which Ajilon conditioned its offer on a signed written settlement agreement. Yet, despite over two (2) years of attempts and repeated new conditions requested by ACS, Ajilon and ACS never agreed to all material terms, nor was there ever a final written settlement agreement. Since the enforceability of a settlement agreement is really a question of contract law, it is essential that "the minds of the parties should meet upon all the terms, as well as the subject- matter of the agreement." Onyx Oils & Resins, Inc. v. Moss, 367 Pa. 416, 80 A.2d 815, 817 (1951). Here that never happened as to all essential terms. First, ACS countered to Ajilon's monetary offer that such payment had to be made within 72 hours. Ajilon never agreed to such demand. More importantly, Ajilon's offer of $5,000 was for a global release of all of the parties, including Ghosh and World Bank. Yet, ACS was only willing to agree to such if Ghosh and World Bank would provide a mutual release back to ACS; and that Ajilon had the authority to bind Ghosh and World Bank. Yet, Counsel for Ajilon did not represent Ghosh or World Bank and could not provide such a release. Thus, there was never a meeting of the minds as to which parties were being released and under what conditions. "As a general rule, signatures are not required unless such signing is expressly required by law or by the intent of the parties." Shovel Transfer & Storage Inc. v. Pennsylvania Liquor Control Bd., 559 Pa. 56, 739 A.2d 133, 136 (1999). (emphasis added) ACS cannot escape the s Attorney Cohen's Entry of Appearance filed aRer the Writ of Summons was filed clearly identifies that he and Lisa Eldridge (then an attorney in Mr. Cohen's prior firm) were only representing Ajilon. No counsel for Ghosh and/or World Bank ever entered their appearance. 6 reality that a written settlement agreement executed by the parties was not simply anticipated, but rather a condition precedent to any such settlement. Ajilon's July 13, 2010 settlement offer letter is explicit in making settlement conditioned upon a written release and settlement agreement. Specifically, Ajilon's counsel stated, "I am authorized to re-offer $5,000 to resolve all claims, subject to a written release and settlement agreement." (Ex. N to ACS' Petition.) (emphasis added) In fact, ACS' response to the July 13, 2010 offer confirmed such conditions that any settlement was subject to a written settlement agreement, when it stated: However, ACS's acceptance is conditioned on your drafting a Mutual Settlement Agreement and Release between all the parties for my review and secondly, Ajilon wire transferring the settlement funds into ACS' account with seventy-two (72) business hours of full execution of the Mutual Settlement Agreement and Release. (Ex. O to ACS' Petition.) (emphasis added) Yet, none of these conditional requirements occurred: 1. There was never a settlement agreement between ALL of the parties as Ajilon's Counsel did not represent Ghosh and World Bank and no one ever entered their- appearance for them; 2. There was never any final settlement agreement, let alone one that was executed; and 3. There was never an agreement that payment would be made within 72 hours. This exact fact pattern occurred in Medical Marketing_Consultants LLC v. Cardiac Telecom Cor ., 2007 WL 1876000 (June 20, 2007 W.D.PA). A copy of this Opinion is attached hereto at Exhibit "B". (In Medical Marketing, the purported email accepting the settlement offer stated "my clients have agreed to the settlement agreement ...subject to working out the terms of our settlement." Id. at 5. Yet, while the parties exchanged several drafts of the written settlement agreement, they were never able to come to an agreement on the written form. As such the court refused to enforce the oral settlement agreement.) See also the recent case of Mizutani v. Haapv 7 Huckster, Corp., 847 F. Supp.2d 702, 704-05 (E.D.PA 2012). (In Mizutani, the court acknowledged the general rule that while written settlement agreements are customary the lack of one does not ordinarily negate the existence of a legally binding settlement. However, the court distinguished these cases because the signing of the settlement agreement was not a ministerial act, but rather was a condition precedent. As such the court refused to enforce any settlement.) The present matter is no different. Despite many months of circulating different drafts of a proposed settlement agreement the parties maintained distinctly different conceptions of the material terms of the settlement agreement being provided in exchange for the $5,000. In short, the parties could not reach a meeting of the minds regarding the terms of the settlement and release, despite eighteen (18) months of settlement talks. As a result there were ambiguities and undetermined matters which rendered any claimed settlement unenforceable. Essner v. Shoemaker, 393 Pa. 422, 143 A.2d 364, 366 (1958}. The fact that the parties never agreed to a mutual agreement concerning the terms of the settlement agreement is fatal to ACS' argument that an enforceable agreement exists. This is because, as noted in ACS' brief, that to have a valid contract "it is essential to the enforceability of a settlement agreement that `the minds of the parties should meet upon all the terms, as well as the subject-matter, of the agreement."' Mazzella v. Koken, 559 Pa. 216.739 A.2d 531, 536 (1999}. This never occurred. Also critical to the issue of whether a valid contract was formed is the lapse of time that occurring during the settlement discussions. In particular, Pennsylvania case law holds that the passage of time can terminate an offer. See First Home Sav. Bank, FSB v. Nernbera, 436 Pa. Super. 377, 648 A.2d 9, 1 S (1994). Further, it is a general rule that where no time limit has been agreed upon for the completion of a contract, it must be completed within a reasonable time 8 under all the circumstances. Francis Gerard Janson, P.C. v. Frost, 422 Pa. Super. 36, 41, 618 A.2d 1003, 1006 (1993). From the time Ajilon re-offered the $5,000 (July 13, 2010) to the time that Attorney Cohen notified that he no longer had settlement authority (November 30, 2011), close to eighteen (18) months had passed by without resolution to settlement. This is clearly an unusually substantial amount of time to effectuate a settlement on a claim that started in 2006 and one in which a Writ of Summons was filed in 2009, but no Complaint was ever filed. Accordingly, it cannot be said that the formation of a valid contract in the form of a settlement agreement was completed in a reasonable amount of time. The result is that there is no enforceable settlement. B. ATTORNEY'S FEES SHOULD NOT BE AWARDED TO ACS AS AJILON'S CONDUCT WAS NOT DILATORY, OBDURATE ANDlOR VEXATIOUS DURING THE PENDENCY OF THIS ACTION, IN PARTICULAR, DURING SETTLEMENT DISCUSSIONS Plaintiff s argument for an award of attorney's fees is misplaced and improper given that the disposition of such claims requires an evidentiary hearing. In re Estate of Burger, 2004 Pa.Super 222, 852 A.2d 385, 391 (2006). Plaintiff did not petition this Court requesting an evidentiary hearing to address whether Ajilon acted dilatorily, obdurately, andlor vexatiously and it would be improper for this Court to rule on this issue sua s onte. Notwithstanding the aforementioned and assuming that the Court can rule on this issue, ACS has not successfully demonstrated that Ajilon's conduct was either dilatory, obdurate or vexatious. In the first place, there is no evidence that Ajilon acted vexatiously. The court in Boyer v. Hicks defined vexatious as "lacking justification and intended to harass," 19 Pa. D. & C.3d 300, 305 (1981). There is not one shred of evidence which suggests that Ajilon acted in any way to harass ACS or ACS' counsel. Further, ACS did not provide an argument in its Brief to support a claim that Ajilon's conduct was vexatious. 9 In terms of ACS' assertion that Ajilon's conduct was dilatory, the undisputed facts and ACS' own documents contradict such a claim. To the contrary, ACS has unnecessarily caused delay in its prosecution of its claims. ACS's initially demanded $16,100 which Ajilon offered, but, ACS rejected. Years later in January 2010 Ajilon offered $5,000, however, it took well over six (6) months before ACS rejected such offer. When Ajilon remade its $5,000 offer in July 13, 2010 ACS again, inexplicably, waited many weeks before responding to Ajilon's offer. Thus, three years after it rejected triple the amount ACS finally agreed to settle the matter for $5,000 anal contingent upon a written settlement agreement. The parties spent the next fourteen (14) months unsuccessfully negotiating key terms of the settlement agreement. In particular, ACS sent revisions to its proposed settlement agreement in a February 11, 2011 draft. Ajilon expressed that it did not accept the revised proposed agreement. For some unknown reason ACS then waited until nine (9) months until it resumed settlement negotiations. During this entire time ACS never filed its Complaint, nor made any effort to prosecute its claims. Given the torpid manner in which ACS prosecuted its claims (keep in mind that as of October 27, 2011-the date of ACS' last draft settlement agreement-four (4) years had passed since ACS' initial demand) Ajilon clearly did not act dilatorily. Ironically, the facts of record demonstrate that ACS was the chokepoint and cause of any delay. Despite ACS' beliefs, Ajilon was not in any way obdurate (that is, "stubbornly persistent in wrongdoing") in taking steps to attempt to settle this matter. ACS alleges Attorney Cohen and his former associate Jeffrey Gordon ("Attorney Gordon") misled ACS into believing that it represented all named defendants. (See footnotes l and 2 of ACS' Brief) This is simply not true and is not supported by the facts. ACS' counsel need only to have looked to the Entry of 10 Appearance to see that Attorney Cohen entered his appearance on behalf of Ajilon only and has never entered an appearance on behalf of Ghosh or World Bank. Admittedly there is a November 2, 2007 letter from Attorney Gordon who mistakenly wrote that he represented Ajilon and Ghosh. (Ex. "E" to ACS' Petition) This in no way should have led ACS' counsel to believe that Attorney Cohen represented all named defendants. Specifically, Attorney Gordon followed the aforementioned correspondence with a December 17, 20071etter clarifying that his representation was limited to Ajilon. In such letter Attorney Gordon stated, "[p]lease be advised that on behalf of Ajilon, this offer is being rejected. (Ex. "G" to ACS' Petition} (emphasis added) Following this, Attorney Gordon wrote in a January 18, 20081etter to ACS' counsel that "Ajilon is willing to offer ACS the sum of Sixteen Thousand, One Hundred Dollars ($16,100), in exchange for ACS' full and final release and waiver of all claims against all parties." (Ex. "I" to ACS' Petition) The aforementioned December 17`" and January 18`" correspondence clearly set forth that Attorney Gordon's representation was limited to Ajilon. Further, there simply is no correspondence from Attorney Gordon or Cohen in which a representation is made that they were counsel to both Ghosh and World Bank. It should be noted that the above-mentioned correspondence pre-dates the June 10, 2009 filing of the Writ of Summons. Once litigation commenced, Attorney Cohen indicated that he was legally representing Ajilon only. In particular, in the July 13, 2010 letter in which Ajilon re- offered the $5,000 settlement offer Attorney Cohen referenced "my client" in connection to the most recent demand made by ACS. (Ex. "N" to ACS' Petition) Consistent with this is the fact that in each settlement draft proposed by Ajilon, the parties to such draft settlement agreements were limited to ACS and Ajilon only. (See for example the October 29, 2010 settlement agreement draft, Ex. "R" to ACS' Petition). ACS seems to be confused that Attorney Cohen 11 would request the release and dismissal of the named defendants yet not represent all such defendants. This is not an uncommon practice. Despite over three (3) years of correspondence and the exchange of draft settlement agreements referencing ACS and Ajilon only, the evidence at bar can only demonstrate that Attorney Cohen did not mislead ACS into believing that they represented all named defendants. IV. CONCLUSION WHEREFORE, Defendant Ajilon Consulting respectfully requests that this Court deny Plaintiff s Fetition to Enforce Settlement Agreement as a written settlement agreement executed by the parties was a condition precedent to settlement and the parties were ultimately unable to execute a such an agreement, despite 18 months of trying, together with its fees and costs and any and all other relief this Court deems fair and just. Respectfully submitted, Royer Cooper Cohen Braunfeld LLC By~~ Barry L. Cohen, Esquire Attorney ID: 068864 October 31, 2012 bcohen(a?,rccblaw.com 101 West Elm Street, Suite 220 Conshohocken, PA 19428 T: (484) 362-2628; F: (484) 362-2630 Attorney for Defendant, Ajilon Consulting 12 EXHIBIT A ~/ COOPER Attorneys at Law Barry L. Cohen, Esq. Partner email: bcohen _.sorinroyerco~r.com direct dial: 484-362-2628 Vi m ' (ksingrich(a?dzmmslaw.com) December 8, 2011 Kathleen Misturak-Gingrich, Esquire Daley Zucker Meilton Miner & Gingrich, LLC 635 N. 12`i' Street, Suite 103 Lemoyne, PA 17Q43 RE: ACS International Resources, Inc. v. Ajilon Consulting, et. al. Court of Common Pleas, Cumberland County (09-3868) Dear Ms. Misturak-Gingrich: This letter is in response to your email dated November 30, 2011 in which you threatened to file a Motion to Enforce Settlement and a Disciplinary Board Complaint. I have reviewed the file and I strongly suggest that you re-think your threats. However, if you proceed, please note that we will fully defend any and all claims as well as seek all permissible legal fees associated with such Motion practice. The below is not a complete summary of all events surrounding ASC's claims against Ajilon Consulting (Ajilon}, Subrata Ghosh ("Ghosh") and The World Bank ("World Bank"), trot is intended to provide you with a highlight of the written facts should you still decide to proceed. Your law firm ("DZMMG") initial claims regarding Ghosh began in 2006. On November 30, 2007 DZMMG sent a letter to my prior law firm Thorp Reed & Armstrong ("TRA") demanding to settle ACS' claims for $130,000 or you would file a Complaint within ten (l0) days. On January 8, 2008, DZMMG sent TRA another letter demanding $130,000, which had to be accepted by January 21, 2008, or you would "shortly" thereafter file a Complaint. No such Complaint was ever filed. On January 18, 2008, TRA wrote to DZMMG and on behalf of A,~ilon offered $16,100 in exchange for a release and waiver of all claims against all parties, including Ajilon, Ghosh, and World Bank. Accordingly, TRA made it clear to you that while payment would be coming from Ajilon, a condition of any settlement would be a complete release of ACS's claims against all parties. Within such letter, TRA made it clear that it could not accept service of any pleading on behalf of Ajilon or Ghosh. ooo28asi.vi SORINROYERCOOPER LLC 101 W. Elm Street • Suite 220 • Conshohocken, Pennsylvania • 19428 Phone: 484.362.2620 • Fax: 484.362.2630 wwwsorinroyercooper.com Conshohocken, PA ~ East Brunswick, NJ (New York, NY COOPER AttornrrK at Law December 8, 2011 ACS International Resources, Inc, v. Ajilon Consulting, et. al. Page 2 of 3 On February 5, 2008, DZMMG wrote to TRA and rejected Ajilon's offer of $16,100. In addition, you stated that you were referring this matter over to ACS's litigation counsel, who we never heard from, On or about June 10, 2009, ACS filed a Writ of Summons in the Court of Common Pleas, Cumberland County, PA against Ajilon, Ghosh and World Bank. On or about June 25, 2009, TRA filed an Entry of Appearance on behalf of Ajilon, only. TRA never entered its appearance on behalf of Ghosh or World Bank. As such, once litigation commenced, TRA only indicated that it was legally representing Ajilon. No other attorney ever entered an appearance on behalf of Ghosh or World Bank. TRA never accepted service on behalf of Ghosh or World Bank. In fact, you did not serve any lawyer representing Ghosh or World Bank, but rather had to serve those parties directly. On August 28, 2009, ACS demanded from Ajilon $30,000 to resolve all claims against all parties. Ajilon did not accept such demand. On December 29, 2009, ACS demanded $20,000 to resolve all claims against all parties. Ajilon rejected this and countered with an offer of $5,000, via a phone conversation in January 2010. Six months later on June 30, 2010, ACS rejected such offer. At the same time, ACS reissued its demand of $20,000 and stated that such offer was only valid for 20 days. In addition, ACS stated that it began drafting its Complaint and if the matter was not resolved, it would "press forward with the litigation." Since no Complaint was ever filed, no Answer was due from my client Ajilon or unrepresented parties Ghosh and World Bank. On July 13, 2010 TRA wrote to DZMMG and stated that on behalf of its client, it could re-offer "$5,000 to resolve all claims, subject to a written release and settlement agreement." (emphasis added). The written settlement agreement, was not simply anticipated, but rather was a condition precedent to any such settlement. On August 24, 2010, ACS issued acounter-proposal and stated that ACS would accept $5,000 if TRA would draft a "Mutual Settlement Agreement and Release between all the parties...and Ajilon wire transfer the settlement funds into ACS' account within seventy-two (72) business hours of full execution of the Mutual Settlement Agreement and Release." DZMMG also requested a reply to confirm "if we have a settlement as set forth above". In other words, there still was NOT a binding agreement at this point in time. [n October 2010, Ajilon sent to ACS a proposed written settlement agreement which was rejected by ACS. In November 2010, ACS edited certain ten~ns in the proposed settlement agreement. Ajilon rejected these terms and proposed others. On February 11, 2011, ACS again edited the terms of the then current proposed settlement agreement and requested for Ajilon to confirm if such terms are "acceptable." Ajilon did not agree to such new terms. Almost 9 months later, on October 27, 2011 ACS forwarded another revised proposed settlement agreement. SORINROYERCOOPER LLC 101 W. Elm Street • Suite 220 • Conshohocken, Pennsylvania • 19428 Phone: 484.362.2620 • Fax: 484.362.2630 www.sori n royercooper.com Conshohocken, PA ~ East Brunswick, N1 ~ New York, NY Atturnrpe at l.aw December 8, 2011 ACS International Resources, Inc. v. Ajilon Consulting, et. al. Page 3 of 3 As mentioned, given the multiple changes, delays and most importantly the fact that the settlement discussions from both sides -which took place approximately 1'/z years ago - were conditioned on a signed written mutually agreeable settlement agreement, which never occurred, there is no settlement. I currently have no authority to resolve this matter. More importantly, Ajilon Consulting no longer exists as an entity. Pursuant to Pennsylvania law, oral settlement agreements are enforceable, however this is NOT true if a written agreement was a condition of the contract. See, Kazanjian v. New England Petroleum Corp., 332 Pa. Super. 1, 480 A.2d 1153, 1158 (1984). Thus, in order for there to be an enforceable settlement there must be: (1) assent to the terms; and (2) a writing must not be a condition of the contract. Bush v. IBM, 1989 WL 133644 (E.D.PA. Nov 1, 1989). See also, Hirsh v. Technetronics, Inc., 1989 WL 11241 (E.D.PA. Feb. 10, 1989). (If parties "did not intend to be bound until a formal document was executed, they will not be bound.") This is exactly the present situation. Specifically, pursuant to my letter dated July 13, 2010 and your counter-proposal dated August 24, 2010, ACS and Ajilon both required a signed written settlement as a condition precedent. This never occurred. In addition, ane of the other factors to determine the validity of an acceptance is the lapse of time. See, First Home Savings Bank, FSB v. Nerr~berg, 436 Pa. Super. 377, 648 A. 2d 9, 15 (1994). Eighteen months have since passed and that clearly is an unusual amount of time to effectuate a settlement on a claim that started in 2006 and one in which a Writ was filed in 2009, but no Complaint was ever filed. In addition, it does not appear that the 2009 Writ was ever reinstated. Accordingly, there is no enforceable settlement agreement. If you wish to discuss any aspects of this letter with me, please let me know. Very Truly Yours, ~... G-.. ~~ Barry L. Cohen, Esquire BLC/alc Cc: Client SORINROYERCOOPER LLC 101 W. Elm Street • Suite 220 • Conshohocken, Pennsylvania • 19428 Phone: 484.362.2620 • Fax: 484.362.2630 www.sorin royercooper.corn Conshohocken, PA ~ East Brunswick, N1 ~ New York, NY EXHIBIT B Medical Marketing Consultants, LLC v. Cardiac Telecom Corp., Not Reported in... 200 WL i8~6oo0 Only the Westlaw citation is currently available. United States District Court, W.D. Pennsylvania. MEDICAL MARKETING CONSULTANTS, LLC, a Florida limited liability company, Martin Praeger, and Mark Schermer, Plaintiffs, v. CARDIAC TELECOM CORPORATION, a Pennsylvania Corporation, and Lee Ehrlichman, Defendants. Civ. Action No. 06-0018. ~ June 20, 200 Attorneys and Law Firms Scott D. Livingston, Stephen S. Zubrow, Moira E. Cain- Mannix, Marcus & Shapira, Pittsburgh, PA, for Plaintiffs. Robert J. Williams, Schnader, Harrison, Segal & Lewis, Pittsburgh, PA, for Defendants. Opinion AND NOW, this 20th day of June 2007 IT IS HEREBY ORDERED that the Defendants' Motion to Enforce Settlement Agreement (Doc 14)is DENIED. The Report and Recommendation of Magistrate Judge Caiazza dated May 31, 2007 (Doc. 20) is hereby adopted as the opinion of the court. REPORT AND RECOMMENDATION FRANCIS X. CAIAZZA, U.S. Magistrate Judge. HEALTH MONITORING SERVICES OF AMERICA, INC., a Florida corporation, MEDICAL MARKETING CONSULTANTS, LLC, a Florida limited liability company, MARTIN PRAEGER, and MARK SCHERMER, Plaintiffs, v CARDIAC TELECOM CORPORATION, a Pennsylvania Corporation, and LEE EHRLICHMAN, Defendants. MEMORANDUM ORDER DONETTA W. AMBROSE, United States District Judge. *1 On January 17, 2006, this case was referred to United States Magistrate Judge Francis X. Caiazza for pretrial proceedings in accordance with the Magistrates Act, 28 U.S.C. $§ 636(b)(1)(A) and (B), and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrates. On May 31, 2007 the magistrate judge issued a Report and Recommendation (Doc. 20) regarding the Plaintiffs' Motion to Enforce Settlement Agreement (Doc. 14). The magistrate judge recommended that the Motion be denied. Service of the Report and Recommendation was made on the parties. No objections were filed. After a review of the pleadings and documents in the case, together with the Report and Recommendation, the following ORDER is entered: I. RECOMMENDATION The Plaintiffs in these related cases i have filed a Motion to Enforce Settlement Agreement (Doc. 14) allegedly reached by all parties as to all issues in both cases in August 2006. Following review of the parties' submissions and an evidentiary hearing, the court finds that although an agreement was reached, a condition precedent to its enforcement was not met. As a result, the court recommends that the Motion be denied. II. REPORT A. Historical Facts This Motion has its genesis in disputes arising in connection with October 28, 2004 contracts incident to the sale of business assets. When these contracts were executed, Health Monitoring Services of America ("HMSA"), a Florida corporation whose principals were Martin Praeger("Praeger") and Mark Schermer ("Schermer"), Medical Marketing Gonsultants, LAG v. Cardiac Telecom Corp., Not Reported in... was engaged in selling cardiac monitoring equipment and services that allowed patients to remain at home during the testing process. HMSA made these cardiac and other non- invasive diagnostic tests available to doctors and hospitals nationwide, marketing its products and services though independent sales representatives. Cardiac Telecom Corporation("CTC"), a Pennsylvania corporation, was a competitor in the home health monitoring industry. The centerpiece of its operation was the sale and servicing of home-based cardiac arrhythmia detection and alarm systems. CTC's President and CEO, Lee Ehrlichman, was aware of HMSA's success in the field of remote cardiac monitoring and became convinced that HMSA services and equipment would mesh well with and allow CTC to expand its home healthcare market. HMSA and its principals agreed that this transfer of assets would benefit them as well. *2 In anticipation of the transaction, Praeger and Schermer formed a limited partnership, Medical Marketing Consultants, LLP ("MMC"), which was organized solely to assist CTC in marketing its expanded line of services and equipment. In order to carry out this marketing effort, MMC employed and entered into broker agreements with an experienced sales staff who had, until the transfer, sold on behalf of HMSA. These broker agreements contained provisions precluding the sales representatives from competing with MMC during the two year duration of the agreements and for an additional two years thereafter. In October 2004, the two primary contracts underlying these cases were signed. The first, an Asset Purchase Agreement ("Purchase Agreement"),was made between HMSA, Praeger and Schermer, the sellers, and CTC, the buyer. This agreement covered cardiac monitoring equipment, computer software, and physician and group accounts fotrnerly served by HMSA. It excluded accounts receivable. Aside from account collection efforts, HMSA was to cease doing business after the asset transfer. CTC's primary obligations under the Purchase Agreement can be summarized as follows: 1) CTC was to pay Praeger and Schermer $1,000,000, for physical equipment included in the sale; 2) CTC would pay MMC a percentage of the monthly sales revenue generated from sales to accounts transferred from HMSA, new accounts secured by the MMC sates force, and a small portion of CTC's telemetry business. These "earn out payments" were to continue for six years from the date of the Purchase Agreement or until total payments equaled or exceeded $10,548,000.2 Under the terms of a Sales Agreement executed the same day as the Purchase Agreement: 1) CTC was granted the right to use MMC's sales representatives to market CTC's entire line of products and services; 2) the sales representatives remained MMC employees; 3) MMC paid the sales commissions, and retained a percentage of the sales generated by its sales staff; and 4} CTC was not permitted to use MMC sales representatives without MMC's permission, because each of the representatives had signed a broker agreement with MMC covenanting not to sell the products of a competitor. The Sates Agreement also contained a provision barring MMC or CTC from soliciting or hiring the other's employees. Less than a year after execution of the agreements relating to the transfer of assets, the business relationship among the parties deteriorated precipitously. The parties offer different explanations. MMC blames CTC's lack of familiarity with the products and services transferred, poor management of the sales force, and inadequate quality and service standards. MMC contends that it was unable to pay its sales representatives because CTC did not make payments to MMC. CTC, on the other hand, argues that the business debacle is traceable to questionable business and billing practices employed by HMSA and its principals prior to and after execution of the asset transfer. As a result of these practices, former HMSA clients were dunned by insurance companies, questioned about bills, and required to return reimbursements received. Health care providers, associating CTC and its sales representatives with past and ongoing HMSA-related difficulties, no longer wanted to do business with CTC. The problem was exacerbated when former HMSA clients learned that HMSA had ceased doing business, and believed that CTC, too, was defunct. CTC contends that HMSA's business practices tainted CTC's operation, grossly diminishing the value of the assets purchased and impairing recovery efforts. In order to protect its assets from becoming utterly worthless, CTC contends that it was necessary to deal directly with MMC sales representatives; CTC had no choice but to pay the sales force itself and to contract directly with some of the representatives. *3 The Plaintiffs sent letters to the Defendants in July and December 2005, declaring that CTC had defaulted on its contractual obligations by failing to make required eam out Medical Marketing Consultants, LLC v. Cardiac Telecom Corp., Not Reported in... payments, placing additional encumbrances on equipment and secured bank funds, denying MMC's signature rights in the secured account, and attempting to divert MMC's only asset-its sales representatives. MMC argued that CTC received what it had bargained for without paying. CTC contended that what it had bargained for was worthless. Impasse was inevitable. B. Procedural History On January 6, 2006, HMSA, Praeger, and Schermer filed suit in Civil Action No. 0018 against CTC and Ehrlichman. In an amended complaint they allege breach of the Purchase Agreement by C;TC (Count I); breach of the Security Agreement by CTC (Count II) as an alternative to Count I, conversion of property conveyed to CTC under the terms of the Purchase Agreement(Count III) and tortious interference by Ehrlichman and CTC with the broker agreements made between MMC and its sales representatives (Count IV).3 On January 18, MMC also initiated arbitration proceedings against CTC with the American Health Lawyers Association. certain. The parties agreed, recognizing the need to rise above intense personal animosity. They asked that rulings on outstanding motions in the related cases be deferred pending the outcome of settlement discussions. Shortly thereafter, negotiations, memorialized in a series of fourteen letters or emails, began, and continued until August 3, 2006. The Plaintiffs contend that on that date a settlement agreement was made; all that remained was to reduce its terms to writing. Shortly thereafter, counsel for the Defendants, acting on behalf of all of the parties, notified the court that a settlement had been reached. Consistent with that representation, Judge Ambrose entered an Order dated August 7, 2006 that reads in part: "The court has been advised by counsel for the parties that the above-captioned action has been settled and that the only matters remaining to be completed are the payment of the settlement proceeds and the submission of a stipulation for dismissal under Fed.R.Civ.P. 41(a)." A similar Order was entered in the related case on August 9, 2007. The matters were marked "closed" with the proviso that either could be re-opened "should further proceedings become necessary or desirable." On February 7, 2006, MMC filed a second related civil suit, Civil Action No. 06-0274, against CTC and Ehrlichman for specific performance of the anti-solicitation provision of the Sales Agreement as well as a request for preliminary and permanent injunctive relief against CTC and Ehrlichman (Count T). MMC also sought injunctive relief against CTC based on other violations of the Sales Agreement, including diversion of sales fees, failure to provide sales data, failure to honor MMC's signature rights, and failure to provide security for the sales fees (Count II). In Count III of the complaint, MMC: sought injunctive relief and damages for the Defendants' tortious interference with broker agreements made between MMC and its sales personnel. Last, in Count IV, MMC sought injunctive relief and damages based on Ehrlichman's alleged tortious interference with the anti- solicitation portion of the Sales Agreement.4 A full-day hearing on the Plaintiffs' request for preliminary injunctive relief was held on March 28, 2006.5 At a status conference on April 19, 2006, the court confirmed what it believed to be the dire financial circumstances facing the parties, and expressed doubt that continued litigation was practical, or even possible. If the parties could not find ground for compromise, agreeing to work together to help CTC succeed, the financial collapse of both companies seemed *4 The Plaintiffs contend that the draft of the settlement agreement received from Defendants' counsel on August 24, 2006 contained a new and material term not included in the August 3 agreement. This term was anon-compete clause prohibiting the Plaintiffs from selling, leasing, or distributing certain cardiac event monitors, ortelemetry-at-home products and services anywhere in the United States for a period of five years from the date of the agreement. When the Plaintiffs objected to this provision, the Defendants proposed an alternative that required Plaintiff Praeger to divest himself of his interest in a business competing with CTC. Praeger, at least in theory, agreed to pursue this alternative. The parties then began negotiation regarding the divestiture and the date on which payments from CTC to the Plaintiffs would begin. When, as of December 2006, the parties were unable to reach a compromise, the Plaintiffs filed this Motion to Enforce Settlement Agreement according to terms established in early August 2006. The court met with the parties on March 5, 2007, notifying them that if a settlement could not be reached by March 28, a hearing would be held on the Motion to Enforce. The court also informed the parties that if it declined to grant the Motion, it would rule promptly on the Plaintiffs request for preliminary relief in the related case. At the Medical Marketing Consultants, LLC v. Cardiac Telecom Corp., Not Reported in... conclusion of a discussion held following the March 5 meeting, the parties represented that they had reached a revised settlement agreement. Counsel for the Defendants stated, without objection, that the terms of the settlement required the approval of the CTC Board of Directors. One week later, the court was notified that the Board had refused to endorse the settlement, but that the parties were continuing to negotiate. When the parties failed to reach a new agreement, the April 16, 2007 hearing on the Motion to Enforce the August agreement went forward. of a complete expression of their agreement, that intent is an issue for the finder-of--fact. Mazzella, 79 A.2d at 536. If all of the material elements of a settlement have been agreed upon, the agreement is enforceable. If, however, there are "ambiguities and undetermined matters which render a settlement agreement impossible to understand and enforce," the agreement will be set aside. Id. at 537 (quoting Essner v. Shoemaker, 393 Pa. 422, 143 A.2d 364, 366 (1958)). II. DISCUSSION A. THE LAW "An agreement to settle a lawsuit, voluntarily entered into, is binding upon the parties, whether or not made in the presence of the court, and even in the absence of a writing." Max Control Systems, Inc., v. Industrial Systems, Inc., No. Civ. A. 99-CV-2175, 2001 WL 1160760 *2 (E.D.Pa. July 31, 2001) (citing Green v. John H. Lewis & Co., 436 F.2d 3$9, 390 (3d Cir.1970)). "When a district court's jurisdiction is based on diversity of citizenship and the settlement involves state law claims, state law governs the enforcement of the settlement." Id (citing Tiernan v. Devoe, 923 F.2d 1024, 1032 (3d Cir.1991)). Under Pennsylvania law, a settlement agreement is governed by principles of contract law and, to be enforced, must include all elements of a valid contract. "As with any contract, it is essential to the enforceability of a settlement agreement that `the minds of the parties should meet upon all the terms, as well as the subject-matter of the agreement.' " Mazzaella v. Koken, 79 A.2d 531, 536 (Pa.1999) (quoting Onyx Oils & Resins, Inc. v. Moss, 367 Pa. 416, 420, 80 A.2d 815 (1951)). *5 As long as the parties have agreed on the essential terms of a settlement, it does not matter that the settlement has not been reduced to writing, or that the parties have tried and failed multiple times to do so. Id. " `As a general rule, signatures are not required unless such signing is expressly required by law or by the intent of the parties.' " Commerce Bank/Pennsylvania v. First Union National Bank, 91 1 A.2d 133, 145 (Pa.Super.2006) (quoting Shovel Transfer & Storage, Inc. v. Pennsylvania Liquor Control Bd., 559 Pa. 56, 739 A.2d 133, 136 (Pa.1999)). Where there is conflicting evidence regarding the parties' intent regarding the existence B. ENFORCEABILITY OF THE ALLEGED AGREEMENT The Plaintiffs' position is that an enforceable settlement agreement was reached when, on August 3, 2006, their counsel emailed counsel for the Defendants as follows: I write to confirm that, as i told you yesterday over the telephone, my clients have agreed to the settlement agreement proposed by CTC in your letter to me dated 7/31/06 (which incorporates the proposals made by CTC in its 7/3 and 7/13 letters) subject to working out the terms of our settlement. 6 (Def.Ex. B.) It was the "working out the terms of [the] settlement" that proved problematic. When the Defendants' draft of the supposed settlement was forwarded to the Plaintiffs nearly a month after the deal was struck, it contained the non-compete clause to which the Plaintiffs objected. In this Motion-filed months after receipt of the written draft-the Plaintiffs ask that the later-added clause be excised from the agreement, and that the settlement be enforced consistent with the tenors agreed upon in early August 2006. The Defendants argue that the disputed clause was not new or material, and was, at least implicitly, part of the August agreement. Nonetheless, they do not seek enforcement of the August agreement or the agreement as drafted. They argue instead that CTC's financial condition negates its ability• to perform under either agreement, and that the situation is not likely to improve in the foreseeable future. A party's after-the-fact inability to perform pursuant to the terms of an agreement is irrelevant to whether there was an agreement in the first place. In order to determine whether ~~~"'Y~ • Medical Marketing Consultants, LLC v. Cardiac Telecom Carp., Not Reported in... there was, in fact, an enforceable settlement agreement as of August 3, 2006, the court looks to the parties' manifestations of intent to be bound and the terms to which that intent extended. *6 The court has reviewed the record relevant to these issues, and is convinced that the parties did come to an agreement in early August 2006, and that the agreement contained the terms essential to the formation of a contract. As much as the court would like to declare this matter settled, it cannot. This is because one of these terms introduces a condition precedent, an "undetermined matter" critical to the agreement that, in the circumstances presented, "renders the agreement impossible to ... enforce." Mazzella, 79 A.2d at 537. On August 3, 2006, counsel for the Plaintiffs accepted the offer of settlement outlined by counsel for the Defendants in correspondence dated July 31, 2006. The Defendants' offer incorporated provisions proposed earlier by CTC in letters written on July 6 and July 13, 2006. Each of these earlier communications provided that any agreement reached among the parties was subject to the approval of CTC's Board of Directors Counsel for the Plaintiffs do not contend otherwise, nor do they deny having understood that approval of the CTC Board was a condition precedent to any party's obligation to perform pursuant to that agreement; they argue only that this condition does not appear in the written "draft" agreement prepared by counsel for the Defendants and therefore should not be considered. The court does not find the absence of this term from the draft to be dispositive on the issue of enforceability. As the Plaintiffs argue in support of their Motion to Enforce, the dispositive issue is the intent of the parties and the scope of the agreement reached on August 3, 2006. That agreement incorporated the requirement that the settlement be approved by the CTC Board; the settlement was not intended to be enforceable absent that approval. ? Because the agreement reached was never submitted to or approved by the CTC Board, the Plaintiffs' Motion should be denied. III. CONCLUSION For the reasons set out above, the court recommends that Plaintiffs' Motion to Enforce the Settlement Agreement be denied. In accordance with the Magistrate's Act, 29 U.S.C. § 636(b) (1) (B), 636(b)(1)(b) and (e), and Rule 72.1.4(B) of the Local Rules for Magistrates, Objections to this Report and Recommendation are due by June 15, 2007. Responses to Objections are due by June 25, 2007. Footnotes ~ The second case, captioned Medical Marketing Consultants, LLC v. Cardiac Telecom Corp., Civil Action No. 06-0274, is pending. Because the settlement agreement addressed in this Report and Recommendation would, had it been enforceable, have resolved the issues presented in the second case as well, the court, with the consent of the parties, deferred ruling on the request for preliminary injunctive relief filed in the related matter. The court concludes that the settlement agreement is not enforceable. Consequently, the request for injunctive relief extant in 06-0274 is addressed in a separate Report and Recommendation filed concurrently with this one. 2 Under an Equity Participation Agreement also executed at the time of the Purchase Agreement, CTC was to transfer shares of its business to MMC at certain revenue milestones. CTC, HMSA, Praeger, Schermer, and MMC also entered into a Security Agreement. As security for its obligations, CTC granted MMC a lien and security interest in the physical equipment and agreed to keep the secured assets free from any other encumbrance. A defined portion of CTC revenue was to be placed in a secured bank account. In the event of a default, MMC had the right to demand that its signature be required for all withdrawals and disbursements from this account. 3 The Defendants' Motion to Dismiss Count IV of the amended complaint is pending in this matter, and will be addressed in a separate Report and Recommendation 4 A Motion to Dismiss Counts III and IV of the complaint is pending in the related matter, Civ. Action No. 06-274, and will be addressed in a separate Report and Recommendation. 5 A t that hearing, the court was informed that days earlier MMC teamed for the first time that CTC had sent a letter dated March 17, 2006 to MMC's defunct address purporting to terminate the Sales Representative Agreement on the basis of fraud. CTC claimed that the initial notice of termination had been included in a letter dated February 26, 2006. 6 The context established by the correspondence shows that the "7/3" letter referenced was actually dated "7/6". The record does not contain correspondence dated "7/3". v~XI Medical Marketing Consultants, LLC v. Cardiac Telecom Corp., Nat Reported in... '] It is also significant that at the March 5, 2007 settlement conference, the parties agreed to a revised settlement that eliminated the non-compete clause at issue here, and reworked the amount of and schedule for CTC's payments to MMC. That revised settlement was submitted to and rejected by the CTC Board. The Plaintiffs, having agreed to an alternate proposal, cannot now turn back the clock and insist that the court enforce an earlier version of the agreement. rtd of Docu~ne~~ct {5>2s""i12'1'tiorrtso~'~ fd~GdErs. No r.,l<~irn to oriyinai i1,S. ~!3v~;~t~~r;7:r~t 1%i~c~rns ._ __._ ~'~ ACS INTERNATIONAL RESOURCES, INC. Plaintiff, � IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, V. PENNSYLVANIA _ ARLON CONSULTING DOCKET NO SUBRATA GHOSH : . 09-3868 nco ` WORLD BANK ; ter-- r", CIVIL ACTION -LAW Defendants. C �- xj ORDE AND NOW this Ze day of 2013, IT IS HEREBY ORDERED that the Hearing on the issue of attorneys' fees previously scheduled for Monday, April 1, 2013 at 3:00p.m. in Courtroom No. 6 of the Cumberland County Courthouse, Carlisle, Pennsylvania is CANCELLED. By the Co Thomas A. Placey J. Distribution: Common Pleas Judge V'Kathleen Misturak-Gingrich,Esquire,635 N. 12`s Street, Suite 101,Lemoyne,PA 17043 Barry L.Cohen,Esquire, 101 W.Elm Street, Ste.220,Conshohocken,PA 19428 Subrata Ghosh,2266 Pimmit Run Lane,Falls Church,VA 22043 '�World Bank, 1818 H Street,N.W.,Washington,D.C.20433 LAW OFFICES OF PETER J.RUSSO,P.C. ! SHE PRO THON BY: Kathleen Misturak-Gingrich, Esquire �PR NO TAR y �Q�3 Attorney I.D.No. 41682 _9 PN 2: 00 5006 E. Trindle Road, Suite 203 CUMBERLANo C Mechanicsburg, PA 17050 PENNSYLV4 OUNTY Telephone: (717) 724-9821 NIA Attorneys for Plaintiff ACS INTERNATIONAL RESOURCES, INC. IN THE COURT OF COMMON PLEAS Plaintiff, OF CUMBERLAND COUNTY, PENNSYLVANIA V. ARLON CONSULTING : SUBRATA GHOSH DOCKET NO. 09-3868 WORK BANK Defendants, CIVIL ACTION - LAW PRAECIPE TO SETTLE DISCONTINUE AND END TO THE PROTHONOTARY: Pursuant to Pa. R. Civ. P 229, please mark the above-captioned matter, settled, discontinued and ended. Respectfully submitted, LAW OFFICES OF PETER J. RUSSO,P.C. By: Kathleen Misturak-Gingrich, Esq re Attorney I.D. No. 41682 5006 E. Trindle Road, Suite 100 Mechanicsburg, PA 17050 Telephone: (717) 591-1755 Attorneys for Plaintiff ACS INTERNATIONAL RESOURCES, INC. : IN THE COURT OF COMMON PLEAS Plaintiff, : OF CUMBERLAND COUNTY, PENNSYLVANIA V. ARLON CONSULTING DOCKET NO. 09-3868 SUBRATA GHOSH WORK BANK Defendants, CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, Laurie L. Watson,Paralegal, hereby certify that on the date indicated below I served a true and correct copy of the foregoing Praecipe to Settle,Discontinue and End via First Class U.S. Mail addressed as follows: Barry L. Cohen, Esquire Royer Cooper Cohen Braunfeld,LLC 101 W. Elm Street, Ste. 220 c Conshohocken, PA 19428 rn ca zX � �r Subrata Ghosh "'' -< `— ' > 2266 Pimmit Run Lane Falls Church,VA 22043 World Bank = — 1818 H Street,N.W. f Washington,DC 20433 Date: 1 ! _ By: a e L. o ,Paralegal LAW OFFICES OF PETER J.RUSSO,P.C. 5006 E. Trindle Road, Ste. 203 Mechanicsburg, PA 17050 (717)591-1755 x 115 lwatson @pjrlaw.com