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HomeMy WebLinkAbout10-01882 '?.• IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Z918 JAN .5 'H 3= 06 Trent Rotz Plaintiff VS. Chet Shank and Michelle Shank Defendants mSa . No. 10- 188 aivi l L-t : Civil Action - Law :Judge: NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania (717) 249-3166 *U-c)o Po RTTY cc* /3Zlo PTO a358(to IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Trent Rotz Plaintiff VS. Chet Shank and Michelle Shank Defendants . No. Civil Action - Law COMPLAINT AND now, comes the Plaintiff, Trent Rotz, by and through his attorney, H. Anthony Adams and sets forth the following: 1. Plaintiff is Trent Rotz, an adult individual, who resides at 20 North Fayette Street, Shippensburg, Cumberland County, Pennsylvania, 17257. 2. Defendants are Chet Shank and Michelle Shank, adult individuals, husband and wife, of 208 Walnut Dale Road, Shippensburg, Cumberland County, Pennsylvania. 3. On or about January 22, 2008, Plaintiff Trent Rotz entered into a business relationship with Chet Shank and Michelle Shank to install insulation. Plaintiff had worked for Chet Shank in the construction business. The business was owned and operated by Chet Shank and Michelle Shank t/d/b/a Thinking Green Systems. 4. On or about January 24, 2008, Plaintiff, Trent Rotz on behalf of Defendants began to meet with various sales representatives to prepared to introduce the insulation product to the public. 5. From February 2008 until March 2008, the Plaintiff represented the Defendants' business at the Pennsylvania Home Show in Harrisburg, Pennsylvania. 6. In March and April of 2008, the Plaintiff attended training on behalf of the Defendants' business with the company BioBased Technologies to become a certified spray applicator of the insulation product. 7. From January 24, 2008 through July 28, 2008, Plaintiff supplied 400.5 hours of service and labor to the business. Plaintiff was never compensated for that service and labor. 8. On March 19, 2008, a filing was accomplished with the Commonwealth's Department of State for a limited liability company "Thinking Green Systems, LLC" which was the successor to the business trading and doing business as Thinking Green Systems. Plaintiff and Defendants were involved in both businesses. 9. On or about the end of July 2008, Defendants, Chet Shank and Michelle Shank, ordered Plaintiff from their business location and property and informed him that he no longer "works" for the Thinking Green Systems, LLC or Thinking Green Systems. 10. In August 2008, the Plaintiff requested an accounting for Thinking Green Systems and Thinking Green Systems, LLC and payment for the services and labor that he had performed. 11. Defendants refused to supply an accounting for either of the business refused to compensate Plaintiff and on August 14, 2008 filed a notice that they, Defendants, intended to do business as Thinking Green Systems Contracting Services. 12. Plaintiff has not received compensation in any form for the services and work supplied to Defendants and to the business Thinking Green Systems, LLC. COUNT 1 Breach of Contract 13. On or about October 2007 through October 2008, the Defendants obtained services procured by Plaintiff, to establish a web-site and web hosting. 14. The value of the services procured by the Plaintiff as set forth in paragraph 13 was $2,453.87 for which neither the Plaintiff nor the supplier of the service were compensated. 15. The Defendants have agreed with Plaintiff that in exchange for his services and efforts as set forth herein that he would receive 50% of the profit of the business together with hourly compensation for his labor. 16. The Plaintiff's hourly rate at the time this service was $19.00 per hour but was being billed at $25.00 per hour resulting in a loss of income to Plaintiff of $7,609.50. Plaintiff also used his vehicle to travel for the Defendants at a cost of $2,265.16. COUNT II Breach of Covenant of Fair Dealing 17. At all times relevant to the matters set forth in this complaint, Defendants were acting as the proprietors and or members of the businesses known as Thinking Green Systems and Thinking Green Systems, LLC. 18. Defendants obtained hundreds of hours of services from Plaintiff using the ruse that Plaintiff was a participant in the businesses known as Thinking Green Systems and Thinking Green Systems, LLC and would share in the profit and receive a wage for hours worked. Plaintiff did not receive remuneration in any form Defendants. 19. The actions of the Defendants violated the covenant of good faith and fair dealing implied in the business arrangements. COUNT III Fraud 20. The actions of the Defendants were fraudulent, deceptive and unfair COUNT IV Accounting 21. The amount of money due from Defendants to Plaintiff cannot be ascertained without an accounting. 22. Plaintiff has demanded an accounting but Defendants have refused and continue to fail and refuse to render such accounting. COUNT V Remedies 23. As a result of the actions of the Defendants the Plaintiff has been damaged. (a) loss of value and future earnings of the business ventures (b) loss of income and expenses of $9,874.66 (c) loss of future income from the business (d) loss for services procured in the amount of $2,453.87 24. Plaintiff is entitled to an accounting to determine the loss of profit on the business from inception to the present. WHEREFORE, Plaintiff requests entry of judgment in his favor for the loss he sustained and that the Court order the Defendants to allow an accounting for the businesses Thinking Green Systems and Thinking Green Systems, LLC. Respectfully submitted, T' _? H. Anthony Adams, Esquire Attorney for Plaintiffs 49 West Orange Street, Suite 3 Shippensburg, PA 17257 (717)-532-3270 Dated: 1 a 1-7 VERIFICATION We verify that the statements made in this Complaint are true and correct. We understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Date: Pa b Trent Rotz SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy ?,tOgjl Qi u3 ilk jrX# X FILED,j 3F h'c P;'- =i RCE rARY 20'0 JA,4 13 AH 13: 25 Cti^v Edward L Schorpp Solicitor Trent Rotz vs. Chet Shank Case Number 2010-188 SHERIFF'S RETURN OF SERVICE 01/11/2010 05:20 PM - Ronald Hoover, Deputy Sheriff, who being duly sworn according to law, states that on January 11, 2010 at 1720 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Chet Shank, by making known unto himself personally, at 208 Walnut Dale Road, Shippensburg, Cumberland County, Pennsylvania 17257 its contents and at the same time handing to hirr personally the said true and correct copy of the same. 01/11/2010 05:20 PM - Ronald Hoover, Deputy Sheriff, who being duly sworn according to law, states that on January 11, 2010 at 1720 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Michelle Shank, by making known unto Chet Shank, Husband of defendant at 208 Walnut Dale Road, Shippensburg, Cumberland County, Pennsylvania 17257 its contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $62.44 January 12, 2010 SO A SWER VRNNNWY R ANDERSON, SHERIFF B'Y Deputy Sheriff c -,E . ,,,: I C; ''E FILFC? t 'ir Donald L. Kornfield . ?F TI +F F "' E r-t; }?r,Y Attorney for Defendants Kornfield and Benchoff, LLP 17 North Church Street l p p 2010 JAI N G ! PH la: I I Waynesboro, PA 17268 (717) 762-8222 , CU +` %_ : !s •i FAX 762-6544 don@kornfield.net Atty. I.D. #19242 TRENT ROTZ : IN THE COURT OF COMMON PLEAS OF : THE 9TH JUDICIAL DISTRICT, PA. Plaintiff No. 10-188 Civil Term v CIVIL ACTION -LAW CHET SHANK and MICHELLE SHANK Defendants Judge: DEFENDANTS' PRELIMINARY OBJECTIONS TO COMPLAINT NOW COME Defendants Chet Shank and Michelle Shank, by and through their attorney, Donald L. Kornfield, Esq., Kornfield and Benchoff, LLP, and set forth Defendants' Preliminary Objections to Complaint, as follows: Legal Insufficiency (Demurrer) To Counts II, III, IV, and V Brought by Plaintiff Pursuant to Pa.R.C.P. 1028(a)(4) 1. Plaintiff has alleged 5 claims at law against Defendants: Count I (Breach of Contract); Count II (Breach of Covenant of Fair Dealing); Count III (Fraud); Count IV (Accounting); and, Count V (Remedies). 2. Pursuant to Pa.R.C.P. 1028(a)(4) a party may file a preliminary objection alleging the legal insufficiency of a pleading (demurrer). 3. In paragraph 19 of Count II, Plaintiff alleged that "the actions of the Defendants violated the covenant of good faith and fair dealing implied in the business arrangements." 4. Plaintiff has not set forth a legal or equitable basis to assert a violation of the allegedly implied covenant of good faith and fair dealing under Count II and has not stated a valid cause of action. 5. In paragraph 20 of Count III, Plaintiff alleged that "the actions of the Defendants were fraudulent, deceptive and unfair." 6. It appears that Plaintiff alleged common law fraud. 7. Plaintiff did not aver the alleged fraud with particularity as required by Pa.R.C.P. 1019(b). 8. Count III for fraud does not state a cause of action upon which relief can be granted. 9. In paragraphs 21 and 22 of Count IV Plaintiff alleged that Plaintiff cannot ascertain the amount of money due from Defendants without an accounting, which he has demanded. 10. In paragraph 24 of Count V Plaintiff alleged that "Plaintiff is entitled to an accounting to determine the loss of profit on the business from inception to the present." 11. Plaintiff has not set forth a legal or equitable basis to require an accounting from Defendants under either Count IV or Count V and has not stated a valid cause or valid causes of action. 12. The 4 claims brought by Plaintiff against Defendants in Counts II, III, IV, and V are legally insufficient as a matter of law and should be dismissed with prejudice. WHEREFORE, Defendants preliminarily object to Counts II, III, IV, and V for failure to state a cause or causes of action upon which relief can be granted, and request that those 4 claims be dismissed with prejudice. Insufficient Specificity of a Pleading To Paragraphs 3, 7, 8, 15, 16, 18, 19, 20, and 23 Pursuant to Pa.R.C.P. No. 1028(a)(3) 13. Paragraphs 1 through 12 above are incorporated herein by reference. 14. In paragraph 3 Plaintiff alleged that "Plaintiff Trent Rotz entered into a business relationship with Chet Shank and Michelle Shank to install insulation." 15. In paragraph 7 Plaintiff alleged that "From January 24, 2008 through July 28, 2008, Plaintiff supplied 400.5 hours of service and labor to the business. Plaintiff was never compensated for that service and labor." 16. In paragraph 8 Plaintiff alleged, among other things, that "Plaintiff and Defendants were involved in both businesses (Thinking Green Systems and Thinking Green Systems, LLC)." 17. In paragraph 15 Plaintiff alleged that "The Defendants have agreed with Plaintiff that in exchange for his services and efforts as set forth herein that he would receive 50% of the profit of the business together with hourly compensation for his labor." 18. In paragraph 16 Plaintiff alleged that "The Plaintiff's hourly rate at the time [sic] this service was $19.00 per hour but was being billed at $25.00 per hour resulting in a loss of income to Plaintiff of $7,609.50. Plaintiff also used his vehicle to travel for the Defendants at a cost of $2,265.16." 19. In paragraph 18 Plaintiff alleged that "Defendants obtained hundreds of hours of services from Plaintiff using the ruse that Plaintiff was a participant in the businesses known as Thinking Green Systems and Thinking Green Systems, LLC and would share in the profit and receive a wage for hours worked. Plaintiff did not receive remuneration in any form [sic] Defendants." 20. In paragraph 19 Plaintiff alleged that "The actions of the Defendants violated the covenant of good faith and fair dealing implied in the business arrangements." 21. In paragraph 20 Plaintiff alleged that "The actions of the Defendants were fraudulent, deceptive and unfair." 22. In paragraph 23 Plaintiff alleged that "As a result of the actions of the Defendants the Plaintiff has been damaged. (a) loss of value and future earnings of the business ventures; (b) loss of income and expenses of $9,874.66; (c) loss of future income from the business; and, (d) loss for services procured in the amount of $2,543.87." 23. Pa.R.C.P. 1019(a) mandates that "[T]he material facts on which a cause of action or defense is based shall be stated in a concise and summary form." 24. Pa.R.C.P. 1019(b) mandates that "[A]verments of fraud or mistake shall be averred with particularity." 25. Paragraphs 3, 7, 8, 15, 16, 18, 19, 20, and 23 of Plaintiff's Complaint are not sufficiently specific in that they fail to identify sufficient facts in support thereof, as follows: (a) the paragraphs referencing an agreement or agreements between the parties do not sufficiently specify whether the alleged agreement or agreements was/were oral or written, or was/were based on another appropriate legal basis; (b) Plaintiff has not sufficiently and specifically itemized when, where, and how the specific 400.5 hours of services, or alternatively the how the hundreds of hours of services, were allegedly provided to Defendants; (c) Plaintiff has not sufficiently specified how he was "involved in both businesses" or was "a participant in the businesses"; (d) Plaintiff has not sufficiently specified how business profit was to be determined, has not sufficiently specified how an hourly rate compensation was allegedly agreed to given the acknowledged difference in hourly rates, and how Defendants may have allegedly agreed to reimburse Plaintiff for use of his vehicle and the cost therefore; (e) Plaintiff has not sufficiently specified what actions of Defendants allegedly violated the covenant of good faith and fair dealing implied in the business arrangements; (f) Plaintiff has not sufficiently specified what actions of Defendants were fraudulent, deceptive and unfair; and, (g) Plaintiff has not sufficiently and specifically itemized the damages alleged in paragraph 23. 26. Paragraphs 3, 7, 8, 15, 16, 18, 19, 20, and 23 of Plaintiffs Complaint otherwise fail to apprise Defendants of the nature and extent of the Plaintiff's allegations or claims and the factual basis thereof. WHEREFORE, Defendants preliminarily object to paragraphs 3, 7, 8, 15, 16, 18, 19, 20, and 23 of Plaintiff s Complaint on the grounds of insufficient specificity and request that the said paragraphs be ordered stricken or, in the alternative, that Plaintiff be required to file a sufficiently specific pleading. Respectfully submitted, KORNFIELD AND BENCHOFF, LLP Doted L. Ko#nfild, Esq. Attorney for Aef darts CERTIFICATE OF SERVICE This is to certify that in this case a true copy of the preliminary objections of Defendants ,has been served upon the following person(s), by the following means and dates stated: H. Anthony Adams, Esq., attorney for Plaintiff 49 West Orange Street, Suite 3 Shippensburg, PA 17257 Date: January 20, 2010 Via: first class mail I verify that the statements made in this Certificate are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsification to authorities. OFF, LLP PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) --------------------------------------------------------------- * --------------------------- CA- L l4 CAPTION OF CASE (entir~s caption must be stated in full) C7 0 " ° c n Trent Rotr, Plaintiff ~ ~ ~" t-Y~ ~ , ~ x -n r-F-E - rte c ~: _{ t ~x . ~ ~-- - ~; Chet Shank and Michelle Shank, Defendants ; "`-~ ~ ~ ~~ No. 10-188 Civil ~~Te ~ --~ rte.' , ~ 1. State matter to be argued (i.e., plaintiffs motion for n c. ew trial, defendant's demurrer to complaint, etc.): ~°f°^~a.:-ts'~reliminar~ Llh3P~'~~ ^n~ (cl m~rrPr~ specificity) 2. Identify all counsel who will argue cases: (a) for plaintiffs: H. Anthony Adams 49 West Orange Street, Shippensburg, PA 17257 (Name and Address) (b) for defendants: Donald L. Kornfield, Esquire Kornfield and Benchoff, LLP (Name and Address) 17 North Church Street, Waynesboro, PA 17268 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: July 7, 2010 H. Anthony Adams Print your name 06/17/2010 Attorney for plaintiff Date: INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. TRENT ROTZ, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION cz; ri CHET SHANK and MICHELLE SHANK, Defendants No. 10-188 CIVIL TERM' ILI `j' IN RE: DEFENDANTS' PRELIMINARY c •• :? OBJECTIONS TO PLAINTIFF'S COMPLAINT w '< BEFORE OLER and EBERT, JJ. ORDER OF COURT AND NOW, this 26`b day of August, 2010, upon consideration of Defendants' Preliminary Objections to Plaintiff's Complaint, following oral argument on July 7, 2010, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. Defendants' demurrer relating to Plaintiffs claim against Defendants at Count 2 is sustained to the extent that the allegations therein will be deemed part of Plaintiffs breach of contract claim in Count 1. 2. Defendants' demurrer relating to Plaintiffs claim against Defendants at Count 5 is sustained to the extent that the demands for relief therein will be deemed part of the complaint's general claim for relief clause. 3. Defendants' preliminary objections to the complaint, in the nature of a motion for greater specificity, are granted to the extent that Plaintiff is directed to file an amended complaint within 20 days of the date of this order stating whether the alleged agreement between Plaintiff and Defendants was oral or written. 4. In all other respects, Defendants' preliminary objections to Plaintiff's complaint are denied. BY THE COURT, 1. Wesley Olen Jr. J. Anthony Adams, Esquire 49 West Orange Street, Suite 3 Shippensburg, PA 17257 Attorney for Plaintiff ./Donald L. Kornfield, Esquire 17 North Church Street Waynesboro, PA 17268 Attorney for Defendants c'V s m?a t UiCL TRENT ROTZ, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION CHET SHANK and MICHELLE SHANK, Defendants No. 10-188 CIVIL TERM IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE OLER and EBERT, JJ. OPINION and ORDER OF COURT OLER, J., August 26, 2010. In this civil case involving a business which Plaintiff was allegedly led to believe he had an interest in, Plaintiff has sued Defendants for breach of contract (Count 1), breach of an implied covenant of good faith and fair dealing (Count 2), fraud (Count 3), an accounting (Count 4), and "remedies" (Count 5).1 In response, Defendants have filed preliminary objections in the form of a demurrer to Counts 2, 3, 4, and 5, and in the form of a motion to strike or, alternatively, a motion to plead with greater specificity certain paragraphs in Counts 1, 2, 3, and 5.2 Argument was held on Defendants' preliminary objections on July 7, 2010. For the reasons stated in this opinion, Defendants' preliminary objections will be sustained in part and denied in part. Plaintiff's Complaint, filed January 5, 2010 (hereinafter Plaintiff's Complaint, ¶_). z Defendants' Preliminary Objections to Complaint, filed January 21, 2010 (hereinafter Defs' Prelim. Objs. to Compl.). STATEMENT OF THE FACTS The facts alleged in Plaintiff's complaint may be summarized as follows:3 Plaintiff, Trent Rotz, is an adult individual who resides in Shippensburg, Cumberland County, Pennsylvania.4 Defendants, Chet Shank and Michelle Shank, are adult individuals, husband and wife, who also reside in Shippensburg, Cumberland County, Pennsylvania.5 At all times relevant to this action, Defendants were acting as the proprietors and/or members of businesses known as Thinking Green Systems and/or Thinking Green Systems, LLC.6 On or about January 22, 2008, Plaintiff and Defendants entered into a business relationship, the object of which was to operate a company that installed insulation for customers.7 Defendants persuaded Plaintiff to participate in this enterprise, known as Thinking Green Systems, by a "ruse, ,8 assuring Plaintiff that he was a participant in the company and would receive 50%9 of the company's profits, with an additional hourly wage of $19.00 per hour as compensation for his services. 10 Prior to this business agreement, Plaintiff had been employed by Defendant Chet Shank in a construction business." 3 In summarizing the allegations of Plaintiff's complaint the court is not expressing an opinion as to their accuracy. a Plaintiff's Complaint, ¶1. ' Plaintiff's Complaint, ¶2. 6 Plaintiffs Complaint, ¶17. Plaintiff's Complaint, ¶3. s Plaintiff's Complaint, ¶18. 9 Plaintiff's Complaint, ¶15. 10 Plaintiffs Complaint, ¶16. 11 Plaintiff s Complaint, ¶3. 2 During October of 2007 through October of 2008, Plaintiff, on behalf of Defendants, secured outside services for the purpose of creating a web-site and web hosting for Thinking Green Systems. 12 Neither Plaintiff nor the service provider was compensated for the web-site and web hosting service, valued at $2,453.87.13 On or about January 24, 2008, Plaintiff, on behalf of the business, met with various sales representatives to prepare for the introduction of Thinking Green System's insulation product to the public.14 Between February and March of 2008, Plaintiff represented the business at the Pennsylvania Home Show in Harrisburg, Pennsylvania.15 Between March and April of 2008, Plaintiff attended training with BioBased Technologies to become a certified spray applicator for Thinking Green Systems' insulation product."' On March 19, 2008, Defendants registered the business as a limited liability company with the Commonwealth's Department of State, utilizing the name "Thinking Green Systems, LLC."17 From January 24, 2008 through July 28, 2008, Plaintiff rendered 400.5 hours of service and labor to the business.18 In late July of 2008, Defendants informed Plaintiff that he no longer worked for Thinking Green Systems, LLC, and forced Plaintiff to vacate the business premises.19 On August 14, 2008, Defendants "filed a notice" stating that they intended to do business as Thinking Green Systems Contracting Services and would no longer be known as Thinking Green Systems, LLC.20 12 Plaintiff's Complaint, ¶13. 13 Plaintiff's Complaint, ¶14. 14 Plaintiff's Complaint, ¶4. is Plaintiffs Complaint, ¶5. 16 Plaintiffs Complaint, ¶6. " Plaintiffs Complaint, ¶8. 18 Plaintiffs Complaint, ¶7. 19 Plaintiffs Complaint, ¶9. 20 Plaintiffs Complaint, ¶1 1. 3 In August of 2008, Plaintiff requested an accounting and payment for the services he had performed for Thinking Green Systems and Thinking Green Systems, LLC.21 Defendants refused to render such an accounting for either business.22 Defendants, as proprietors of Thinking Green Systems and Thinking Green Systems, LLC, failed to compensate Plaintiff for services rendered 23 and for the procurement of the web-site and web hosting service.24 Plaintiff suffered an aggregate loss of income in the amount of $7,609.50 as a result of Defendants' actions, with an additional loss in the amount of $2,265.16 for the use of Plaintiff's personal vehicle for business purposes .25 Plaintiff asserts that Defendants' actions resulted in damages to Plaintiff in the following particulars: (a) loss of value and future earnings with respect to the business ventures; (b) an aggregate loss of income, for services rendered and expenses for the use of Plaintiffs personal vehicle, of $9,874.66; (c) loss of future income from the business; and (d) loss related to web-site and web-hosting services procured in the amount of $2,453.87.26 Defendants filed preliminary objections to Plaintiffs complaint which may be summarized as follows: (1) a demurrer as to Counts 2, 3, 4, and 5 of Plaintiffs complaint for failure to state legally cognizable causes of action;27 and (2) a motion to strike or, alternatively, a motion for a more specific pleading as to various paragraphs in Counts 1, 2, 3, and 5 of Plaintiffs complaint. 28 21 Plaintiff's Complaint, ¶10. 22 Plaintiff's Complaint, ¶11. 23 Plaintiff s Complaint, ¶12. 24 Plaintiffs Complaint, ¶14. 25 Plaintiffs Complaint, ¶16. 26 Plaintiffs Complaint, ¶23. 27 Defs' Prelim. Objs. to Compl. 28 Defs' Prelim. Objs., to Compl. 4 DISCUSSION Demurrers, in general. A preliminary objection to a complaint in the nature of a demurrer is appropriate where the complaint is legally insufficient to sustain a cause of action recognized by the law. Pa. R.C.P. 1028(a)(4). The court must resolve the issues solely on the basis of the challenged pleading and generally no testimony or other evidence outside of the pleading may be considered to dispose of the legal issues presented. Hess v. Fox Rothschild, LLP, 2007 PA Super 133, ¶18, 925 A.2d 798, 805. When considering a demurrer, the court must accept all material facts set forth in the complaint, as well as all inferences reasonably deducible therefrom, as true, and "decide whether, based on the facts averred, recovery is impossible as a matter of law." Wagner v. Waitlevertch, 2001 PA Super 100, ¶6, 774 A.2d 1247, 1250, citing Wiernik v. PHH US Mortg. Corp., 1999 PA Super 193, 736 A.2d 616 (citations omitted). A demurrer should be sustained only if the plaintiff "has failed to assert a legally cognizable cause of action" and cannot prevail. Lerner v. Lerner, 2008 PA Super 183, X11, 954 A.2d 1229, 1234, citing Kramer v. Dunn, 2000 PA Super 101, ¶1.8, 749 A.2d 984, 990. Demurrer to Count 2 (breach of an implied covenant of good faith and fair dealing). In their preliminary objections, Defendants argue that Plaintiff has not set forth a claim cognizable at law or in equity for an alleged breach of an implied covenant of good faith and fair dealing, and thus has not stated a valid cause of action at Count 2. Pennsylvania courts have consistently recognized the Second Restatement of Contracts §205, which states that there is a "general duty of good faith and fair dealing in the performance of a contract." Somers v. Somers, 418 Pa. Super. 131, 136, 613 A.2d 1211, 1213 (1992). The Pennsylvania Supreme Court has additionally recognized the doctrine of necessary implication, whereby, [i]n the absence of an express provision, the law will imply an agreement by the parties to a contract to do and perform those things that according to reason and justice they should do in order to carry out the purpose for which the contract was made and to refrain from doing anything that would destroy or injure the other party's right to receive the fruits of the contract. 5 Id. at 137-38, citing Frickert v. Deiter Bros. Fuel Co., Inc., 464 Pa. 569, 347 A.2d 701 (1957) (citations omitted). However, a breach of the implied covenant of good faith and fair dealing is not generally a cause of action in and of itself, but rather is subsumed within a breach of contract claim. LSI Title Agency, Inc. v. Evaluation Services, Inc., 2008 PA Super 126, ¶ 19, 951 A.2d 384, 392. Accordingly, Plaintiffs allegations in this regard will be deemed to be included in his breach of contract claim in Count 1 and the demurrer as to Count 2 as a separate cause of action will be sustained. Demurrer to Count 3 (fraud). In their preliminary objections, Defendants further argue that Plaintiff has failed to state a cause of action upon which relief cart be granted at Count 3 for fraud, and argue that under Pennsylvania Rule of Civil Procedure 1019(b) Plaintiff has failed to allege fraud with particularity. Pennsylvania practice requires that "[a]verments of fraud or mistake shall be averred with particularity." Pa. R.C.P. 1019(b). Although Pennsylvania Rule of Civil Procedure 1019(b) requires that a complaint allege fraud with particularity, it does not require that the facts said to constitute the fraudulent act proceed in the pleading in a perfectly logical order and sequence. Borelli v. Barthel, 205 Pa. Super. 442, 448, 211 A.2d 11, 14 (1965). To sufficiently allege fraud, however, the claimant must plead more than a mere legal conclusion. Id. Plaintiffs complaint, viewed in its entirety, alleges more than a legal conclusion of fraud. Plaintiff avers that Defendants, in the course of a "ruse," entered into an agreement with Plaintiff, and offered to pay him 50% of the profit from Thinking Green Systems, with an additional hourly rate of $19.00, in exchange for his participation in the company. Plaintiff relied on this agreement and received training specifically for the product being distributed by Thinking Green Systems, according to the complaint. Plaintiff alleges that he represented Defendants' company at the Pennsylvania Home Show in Harrisburg and advertised Thinking Green System's product to the public. The complaint further asserts that Defendants terminated Plaintiff from Thinking Green System and/or Thinking Green Systems, LLC, and refused to compensate Plaintiff for 6 work already rendered. When viewed in its entirety, Plaintiff's complaint states a valid cause of action and does not simply plead fraud as a legal conclusion. Therefore, Defendants' demurer as to Count 3 will be denied. Demurrer to Count 4 (for an accounting). In their preliminary objections, Defendants further argue that Plaintiff has failed at Count 4 to set forth a legal or equitable basis upon which to require an accounting from Defendants. When reviewing a request for an accounting, "it is reasonable for the court to permit some latitude since often times it is not certain what claims a plaintiff may have until the accounting is completed." Shared Commc'n Servs. of 1800-80 JFK Blvd., v. Albert M. Greenfield & Co., 2001 Phila. Ct. Com. Pl. LEXIS 63, citing In re Estate of Hall, 517 Pa. 115, 136, 535 A.2d 47, 58 (1987). "An equitable accounting is proper where a fiduciary relationship exists between the parties, where fraud or misrepresentation is alleged, or where the accounts are mutual or complicated, and plaintiff does not possess an adequate remedy at law." Id., citing Rock v. Pyle, 720 A.2d 137, 142 (Pa. Super. 1998) (citations omitted). As noted previously, Plaintiff has alleged a valid cause of action for fraud committed by Defendants. As such, a request for an accounting is also permissible. Accordingly, Defendants' demurer as to Count 4 will be denied. Demurrer to Count S ("remedies'). In their preliminary objections., Defendants also argue that Plaintiff has failed to set forth a legal or equitable basis at Count 5 sufficient to support a cause of action for "remedies." Under Pennsylvania Rule of Civil Procedure 1021(a), "[a]ny pleading demanding relief shall specify the relief sought." Pa. R.C.P. 1021(a). Plaintiff's complaint properly specified his claims for relief under the Pennsylvania Rules of Civil Procedure. However, this specification is not in and of itself a separate cause of action. Accordingly, the claims for relief constituting Count 5 of Plaintiff's complaint will be deemed part of the complaint's general claim for relief clause and Defendants' demurrer to the Count as a separate cause of action will be granted. Motion to strike or for more specific pleading, in general. When a preliminary objection is based upon a purported lack of specificity in a pleading, a motion to strike is not a substitute for a motion for a more specific pleading. Huguet v. Foodsales, Inc., 3 Pa. D. & C.3d 136, 138 (C.P. Chester Co. 1977). With respect to the latter type of motion, Pennsylvania Rule of Civil Procedure 1028(a)(3) allows a party to preliminarily object to an opponent's pleading for "insufficient specificity." In this regard, the Pennsylvania Superior Court has stated that [t]he pertinent question under Rule 1028(a)(3) is "whether the complaint is sufficiently clear to enable the defendant to prepare his defense," or "whether the plaintiffs complaint informs the defendant with accuracy and completeness of the specific basis on which recovery is sought so that he may know without question upon what grounds to make his defense." Rambo v. Greene, 2006 Pa. Super. 231, ¶11, 906 A.2d 1232, 1236, citing Ammlung v. City of Chester, 224 Pa. Super. 47 n.36, 302 A.2d 491, 498 (1973). To determine the sufficiency of the pleadings in the complaint, the court must not simply focus upon one portion or one paragraph of the complaint, but "such paragraphs must be read in context with all other allegations in the complaint." Yocoub v. Lehigh Valley Med. Assocs. P.C., 2002 Pa. Super. 251, ¶17, 805 A.2d 579, 589. The Commonwealth is a fact-pleading state in which "the complaint must provide the defendant notice of the basis of the claim as well as a summary of the facts essential to support that claim." Latniak v. Von Koch, 70 Pa. D. & C. 4th 489, 494 (Lackawanna Co. 2004), citing Alpha Tau Omega Fraternity v. Univ. of Pa., 318 Pa. Super. 293, 464 A.2d 1349 (1983). Pennsylvania Rule of Civil Procedure 1019 states that "material facts on which a cause of action or defense is based shall be stated in a concise and summary form." Pa. R.C.P. 1019(a). Averments of fraud must be pled with particularity in order to allow "an inference that the claim is not without foundation nor offered simply to harass the opposing party and to delay the pleader's own obligations." Mansaray v. Gerolamo, 2007 Phila. Ct. Com. Pl. LEXIS 259, quoting Bata v. Central-Penn Nat'l Bank of Philadelphia, 423 Pa. 373, 224 A.2d 174 (1966). The court has broad discretion 8 in determining the amount of detail that must be averred since the standard of pleading set forth in the rule is incapable of precise measurement. Pike County Hotels Corp. v. Kiefer, 262 Pa. Super. 126, 134, 396 A.2d 677, 681 (1978). Finally, where the object of a motion can be assumed to be more within the knowledge of the non-pleader, the details requested can be relegated to the discovery process. Bethlehem Steel Corp v. Litton Indus., Inc., 71 Pa. D. & C.2d 635, 644-45 (C.P. Allegheny Co. 1974). Specificity with respect to Count I (breach of contract). In their preliminary objections, Defendants argue that Plaintiff has failed to plead, with sufficient specificity, his claim for breach of contract. To support a breach of contract claim, the claimant must plead: "(1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract, and (3) resultant damages." Hart v. Arnold, 2005 PA Super 328 ¶ 29, 884 A.2d 316, 332. According to Pennsylvania Rule of Civil Procedure 1019(h), "[w]hen any claim ... is based upon an agreement, the pleading shall state specifically if the agreement is oral or written." Pa.R.C.P. 1019(h). Plaintiff has alleged that an agreement was made between himself and Defendants and averred the essential terms of the agreement in the following particulars: (1) Defendants and Plaintiff agreed to provide insulation installation services, through Thinking Green Systems, to customers; (2) Defendants would share 50% of the profit from Thinking Green Systems with Plaintiff and would further compensate Plaintiff with an hourly wage of $19.00 per hour for his services and labor; and (3) damages in certain amounts were incurred by Plaintiff as a result of Defendants' failure to compensate him for services rendered and Defendants' termination of the relationship. However, Plaintiff has not stated whether the agreement was oral or written. Plaintiff has thus sufficiently pled the facts to fulfill the breach of contract standard, but has failed to comply with the aforesaid Rule of Civil Procedure by indicating whether the agreement was oral or written. Therefore, Defendants' preliminary objection requesting a more specific pleading in this limited aspect as to Count 1 will be granted. 9 Specificity with respect to Count 2 (breach of an implied covenant of good faith and fair dealing). In their preliminary objections, Defendants also argue that Plaintiff has failed to plead with sufficient specificity the actions of Defendants that breached an implied covenant of good faith and fair dealing. As noted previously in this opinion, a demurrer to Plaintiffs claim in this regard as an independent cause of action will be granted and the averments as to a breach of an implied covenant of good faith and fair dealing will be deemed a constituent of his breach of contract claim in Count 1. Further specification of this basis for relief in the pleading is not, in the court's view, necessary for Defendants to prepare a proper response to the allegation. Specificity with respect to Count 3 (fraud). In their preliminary objections, Defendants further argue that Plaintiff failed to plead fraud at Count 3 with the requisite specificity. Under Pennsylvania Rule 1019(b), "[a]verments of fraud or mistake shall be averred with particularity." Pa.R.C.P. 1019(b). To establish fraud, a plaintiff must allege "(1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance." Mansaray v. Gerolamo, 2007 Phila. Ct. Com. P1. LEXIS 259, citing Bortz v. Noon, 556 Pa. 489, 499, 729 A.2d 555, 560 (1999). Plaintiffs complaint, viewed in its entirety, in the court's view alleges the elements required to sustain fraud with sufficient particularity. Plaintiff's complaint alleges that Defendants led Plaintiff to enter into a business agreement, through a "ruse," in which Plaintiff believed that he was a participant in Thinking Green Systems and would receive payment for his labor, including 50% of the business's profit and a $19.00 hourly wage, which Plaintiff did not receive. Plaintiff avers he subsequently rendered 400.5 hours of service for Thinking Green Systems and Thinking Green Systems, LLC. Plaintiff alleges significant injury as a proximate cause of these events including (a) loss of value of future earnings of the business ventures, (b) loss of income and expenses of $9,874.66, (c) loss of future income from the business, and (d) loss related to outside 10 services procured in the amount of $2,453.87. Plaintiff has properly pled the facts necessary to support a fraud claim in sufficient detail to enable Defendants to prepare any defense they have to the claim. Accordingly, Defendants' motion for greater specificity as to Count 3 will be denied. Specificity with respect to Count 5 ("remedies'). In their preliminary objections, Defendants argue finally that Plaintiff has failed to itemize sufficiently the damages claimed in Plaintiffs complaint. As noted previously in this opinion, Count 5 of Plaintiffs complaint will be regarded as an addendum to his claim for relief relating to other causes of action rather than as a separate cause of action. The un-pled precise amounts of certain losses claimed by Plaintiff would appear to be more within the knowledge of Defendants than Plaintiff and the ascertainment of those amounts can be relegated to the discovery process. Based upon the foregoing, the following order will be entered: ORDER OF COURT AND NOW, this 26th day of August, 2010, upon consideration of Defendants' Preliminary Objections to Plaintiffs Complaint, following oral argument on July 7, 2010, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. Defendants' demurrer relating to Plaintiffs claim against Defendants at Count 2 is sustained to the extent that the allegations therein will be deemed part of Plaintiffs breach of contract claim in Count 1. 2. Defendants' demurrer relating to Plaintiffs claim against Defendants at Count 5 is sustained to the extent that the demands for relief therein will be deemed part of the complaint's general claim for relief clause. 3. Defendants' preliminary objections to the complaint, in the nature of a motion for greater specificity, are granted to the extent that Plaintiff is directed to file an amended complaint within 20 days of 11 the date of this order stating whether the alleged agreement between Plaintiff and Defendants was oral or written. 4. In all other respects, Defendants' preliminary objections to Plaintiff's complaint are denied. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr. J. H. Anthony Adams, Esquire 49 West Orange Street, Suite 3 Shippensburg, PA 17257 Attorney for Plaintiff Donald L. Kornfield, Esquire 17 North Church Street Waynesboro, PA 17268 Attorney for Defendants 12 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Trent Rotz Plaintiff No.10-188 Civil Term vs. Chet Shank and Michelle Shank Defendants : Civil Action - Law :Judge: NOTICE G _ n -0 C? You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania (717) 249-3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Trent Rotz Plaintiff No.10-188 Civil Term VS. : Civil Action - Law Chet Shank and Michelle Shank Defendants AMENDED COMPLAINT AND now, comes the Plaintiff, Trent Rotz, by and through his attorney, H. Anthony Adams and sets forth the following: 1. Plaintiff is Trent Rotz, an adult individual, who resides at 20 North Fayette Street, Shippensburg, Cumberland County, Pennsylvania, 17257. 2. Defendants are Chet Shank and Michelle Shank, adult individuals, husband and wife, of 208 Walnut Dale Road, Shippensburg, Cumberland County, Pennsylvania. 3. On or about January 22, 2008, Plaintiff Trent Rotz entered into a business relationship with Chet Shank and Michelle Shank to install insulation. Plaintiff had worked for Chet Shank in the construction business. The business was owned and operated by Chet Shank and Michelle Shank t/d/b/a Thinking Green Systems. This agreement to enter into a business relationship was oral. 4. On or about January 24, 2008, Plaintiff, Trent Rotz on behalf of Defendants began to meet with various sales representatives to prepared to introduce the insulation product to the public. 5. From February 2008 until March 2008, the Plaintiff represented the Defendants' business at the Pennsylvania Home Show in Harrisburg, Pennsylvania. 6. In March and April of 2008, the Plaintiff attended training on behalf of the Defendants' business with the company BioBased Technologies to become a certified spray applicator of the insulation product. 7. From January 24, 2008 through July 28, 2008, Plaintiff supplied 400.5 hours of service and labor to the business. Plaintiff was never compensated for that service and labor. 8. On March 19, 2008, a filing was accomplished with the Commonwealth's Department of State for a limited liability company "Thinking Green Systems, LLC" which was the successor to the business trading and doing business as Thinking Green Systems. Plaintiff and Defendants were involved in both businesses. 9. On or about the end of July 2008, Defendants, Chet Shank and Michelle Shank, ordered Plaintiff from their business location and property and informed him that he no longer "works" for the Thinking Green Systems, LLC or Thinking Green Systems. 10. In August 2008, the Plaintiff requested an accounting for Thinking Green Systems and Thinking Green Systems, LLC and payment for the services and labor that he had performed. 11. Defendants refused to supply an accounting for either of the business refused to compensate Plaintiff and on August 14, 2008 filed a notice that they, Defendants, intended to do business as Thinking Green Systems Contracting Services. 12. Plaintiff has not received compensation in any form for the services and work supplied to Defendants and to the business Thinking Green Systems, LLC. COUNT 1 Breach of Contract 13. On or about October 2007 through October 2008, the Defendants obtained services procured by Plaintiff, to establish a web-site and web hosting. 14. The value of the services procured by the Plaintiff as set forth in paragraph 13 was $2,453.87 for which neither the Plaintiff nor the supplier of the service were compensated. 15. The Defendants have orally agreed with Plaintiff that in exchange for his services and efforts as set forth herein that he would receive 50% of the profit of the business together with hourly compensation for his labor. 16. The Plaintiff's hourly rate at the time this service was $19.00 per hour but was being billed at $25.00 per hour resulting in a loss of income to Plaintiff of $7,609.50. Plaintiff also used his vehicle to travel for the Defendants at a cost of $2,265.16. 17. All of the terms, conditions, requirements and agreements between Plaintiff and Defendant upon which this action is based were the oral agreements set forth in these paragraphs. The oral agreements are supported by an unsigned operating agreement and written submissions to the Commonwealth. 18. At all times relevant to the matters set forth in this complaint, Defendants were acting as the proprietors and or members of the businesses known as Thinking Green Systems and Thinking Green Systems, LLC. 19. Defendants obtained hundreds of hours of services from Plaintiff using the ruse that Plaintiff was a participant in the businesses known as Thinking Green r Systems and Thinking Green Systems, LLC and would share in the profit and receive a wage for hours worked. Plaintiff did not receive remuneration in any form Defendants. 20. The actions of the Defendants violated the covenant of good faith and fair dealing implied in the business arrangements. COUNT II Fraud 21. The actions of the Defendants were fraudulent, deceptive and unfair COUNT III Accounting 22. The amount of money due from Defendants to Plaintiff cannot be ascertained without an accounting. 23. Plaintiff has demanded an accounting but Defendants have refused and continue to fail and refuse to render such accounting. 24. As a result of the actions of the Defendants the Plaintiff has been damaged, as follows: J a (a) loss of value and future earnings of the business ventures (b) loss of income and expenses of $9,874.66 (c) loss of future income from the business (d) loss for services procured in the amount of $2,453.87 25. Plaintiff is entitled to an accounting to determine the loss of profit on the business from inception to the present. WHEREFORE, Plaintiff requests entry of judgment in his favor for the loss he sustained and that the Court order the Defendants to allow an accounting for the businesses Thinking Green Systems and Thinking Green Systems, LLC. Respectfully submitted, H. Anthony Adams, Esquire __ - Attorney for Plaintiffs 49 West Orange Street, Suite 3 Shippensburg, PA 17257 (717)-532-3270 C> r D Dated: VERIFICATION We verify that the statements made in this Complaint are true and correct. We understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Date: Trent Rotz CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document upon the person in the manner indicated below, by depositing a copy of the same in the United States Mail, Shippensburg, Pennsylvania, with first class postage prepaid as follows: Donald L. Kornfield, Esquire Kornfield and Benchoff, LLP 17 North Church Street Waynesboro, PA 17268 Date:9/ /2010 H. Anthony Adams, Esquire 49 W. Orange Street, Suite 3 Shippensburg, PA 17257 (717)-532-3270 c:) Donald L. Kornfield t _T1 Attorney for Defendants -- Kornfield and Benchoff, LLP 'A 17 North Church Street I Waynesboro, PA 17268 %=QC.; `' (717) 762-8222 FAX 762-654 4 -Ti c ) don@kornfield.net :3. . _ Atty. I.D. #19242 c? TRENT ROTZ : IN THE COURT OF COMMON ASNF : THE 9TH JUDICIAL DISTRICT, P:(-. -' Plaintiff No. 10-188 Civil Term V CIVIL ACTION -LAW CHET SHANK and . MICHELLE SHANK . Defendants Judge: ANSWER TO AMENDED COMPLAINT NOW COME Defendants and answer the amended complaint of Plaintiff as follows: 1. Admitted. 2. Admitted. 3. Denied. Plaintiff worked for Defendants business C&M Construction as a subcontractor beginning November 2006. Around January 2008, Plaintiff and Defendant Chet Shank discussed the possibility of creating a business with a bio-based spray foam insulation product but due to the poor credit and criminal record of Plaintiff, the business was formed in the name of Defendants. 4. Denied in that Plaintiff and Defendant Chet Shank began setting up meetings with various businesses to introduce the product. 5. Denied in that from February 23, 2008 to March 2, 2008, Defendants, Plaintiff and his girlfriend Ermina Memic represented Thinking Green Systems at the Pennsylvania Home Show in Harrisburg, Pennsylvania. All costs associated with the show were paid for by C&M Construction as Thinking Green Systems had not yet been formed. 6. Denied in that Defendant Chet Shank and Plaintiff attended training with BioBased Technologies to become certified spray applicators of the insulation product. All costs and expenses were paid for by C&M Construction since the Thinking Green Systems had not yet started business. ft 7. Admitted that from January 24, 2008 through July 28, 2008, Plaintiff provided hours of service and labor to the business. 8. Admitted. 9. Denied. On July 28, 2008, Defendants had a meeting with the Plaintiff and Ermina Memic. Plaintiff had become increasingly hostile toward Defendants accusing the defendants of "being shady" as well as demanding that Thinking Green Systems provide health insurance for him and Ms. Memic. Defendants told Plaintiff that the financial burden was showing on C&M Construction and Thinking Green Systems, LLC and that Defendants could not afford to take out another loan to support Plaintiff and Ms. Memic. Thinking Green Systems, LLC had not yet made a profit even though Plaintiff had been reimbursed for his business expenses. It was discussed that Defendants had taken out a loan for purchasing the Thinking Green Systems, LLC trailer and equipment to spray the foam and that all of the start-up costs had been taken paid by Defendants. Defendants asked Plaintiff if he would consider being a subcontractor instead of a partner in Thinking Green Systems, LLC. Plaintiff became hostile and proceeded to lift Defendants kitchen island top off of the base cabinet and slam the top back down. Plaintiff then proceeded to advance toward Defendant Chet Shank and lifted his fist as if to hit the Defendant Chet Shank. Ermina Memic then asked Plaintiff to leave the Defendants' home which he did on his own accord 10. Denied. On May 1, 2008, accountant Trena Brookens of Myer's Tax Service met with the Plaintiff, Ermina Memic and Defendants to discuss the audit that Plaintiff had requested that was completed by the accountant. The Thinking Green Systems, LLC account was in order and the company had a negative $24,303.07 balance. 11. Denied in that Plaintiff did not have further contact with Defendants after a July 28, 2008 meeting. 12. Admitted. COUNTI 13. Denied. No contract was ever discussed regarding the website for C&M Construction or Thinking Green Systems or Thinking Green Systems, LLC. 14. Denied in that after reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averment because the means of proof are within the exclusive control of Plaintiff. 15. Denied in that Defendants did not agree with Plaintiff would receive 50% of the profit of the business together with hourly compensation for his labor. The Certificate of Organization states that Defendant Chet Shank will receive 60% of the profit and that the Plaintiff would receive 40% of the profit. At no time was the plaintiff going to receive an hourly wage from Thinking Green Systems. 16. Denied. The hourly wage for Plaintiff at C&M Construction was $17.00. Plaintiff was not to be paid an hourly wage by Thinking Green. The vehicle was used for Thinking Green Systems hours. The reimbursement for use of the vehicle at the end of the tax year was explained to Plaintiff by the Trena Brookens of Myer's Tax Service. In business dealings, hours are billed to the customer at a higher rate than wages to offset costs of business insurance, vehicle insurance, vehicle repair, equipment expenses, etc. At no time did Plaintiff have a loss of income from this business practice. 17. Denied in that the only agreement was that Plaintiff would receive a 40% share of profits and reimbursement for vehicle use. 18. Defendants were proprietors or members of the businesses known as Thinking Green Systems and Thinking Green Systems, LLC. 19. Denied in that Defendants also put in hundreds of hours of services and money from bank loans and C&M Construction with the intention that eventually the business would be profitable. 20. Denied in that Defendants did not violate the covenant of good faith and fair dealing implied in the business arrangements but rather put in time and money attempting to obtain profitability. It was the actions of Plaintiff which deprived him of benefit. COUNT II 21. Denied in that at no time were the actions of Defendants fraudulent, deceptive, and unfair. Defendants were attempting to give Plaintiff a chance to build up his credit and reputation in the community by being a part of the business. It was Plaintiff became deceptive and accusatory in nature. COUNT III 22. Denied in that no sums are due Plaintiff from Defendants. 23. Denied in that Plaintiff has not been damaged for a loss of value and future earning as the plaintiff never contributed any money to the start-up of the business venture. 24. (a) Denied in that by his actions against Defendants and by shutting the web site down, Plaintiff caused more damage to the business than any expectation of future value and earnings. (b) Denied in that after reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averment because the means of proof are within the exclusive control of Plaintiff. On the contrary Plaintiff damaged the vehicle of Defendants the repair of which will cost over $1,000.00. (c) Denied in that by his actions against Defendants and by shutting the web site down, Plaintiff caused more damage to the business than any expectation of future value and earnings. (d) Denied in that after reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averment because the means of proof are within the exclusive control of Plaintiff. 25. Plaintiff has not been damaged by a loss of income and expenses. All of Plaintiffs expenses were paid by the business with the exception of fuel for his vehicle because that expense comes off with yearly taxes. Plaintiff has not been damaged for loss of future income from the business. Plaintiff did not contribute any money in the start-up or maintenance of the business. Plaintiff did not have loss of services of $2453.87 for the web-hosting as stated. bill was only sent as of the billing of August 2, 2008, at which time the web-sites were non- functional. WHEREFORE, Defendants request dismissal of the complaint. B3 I verify that the statements made in this answer are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unworn falsification to authorities. Chi ? Chet Shank CERTIFICATE OF SERVICE This is to certify that in this case a true copy of this answer has been served upon the following person(s), by the following means and dates stated: H. Anthony Adams, Esq., Attorney for Plaintiff 49 West Orange Street, Suite 3 Shippensburg, PA 17257 Date: September 24, 2010 Via: First Class Mail I verify that the statements made in this Certificate are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. Section 4904 relating to unsworn falsification to authorities. RNFIELD AND FWT CHOFF, LLP Attorney for is 't P tt� t U0H0T1'ti' T Roo 7313 ocT Pli I: 41 vs i,11 lE�ERL�"+ (� COUNT YCase No. I O 1 8 S. 1' NNSY�-VaIF� Cie_} Src c.Ne l\e. S t < Statement of Intention to Proceed To the Court: intends to proceed with the above captioned matter.Mt" Print Name ` • �� i •':n N.. - Date: /0 1„)3 13 Attorney for re.c Z Explanatory Comment The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit comment. I.Rule of civil Procedure New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting local rules. This rule was promulgated in response to the decision of the Supreme Court in Shop v.Eagle, 551 Pa. 360,710 A.2d 1104 (1998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901." Rule of Judicial Administration 1901(b) has been amended to accommodate the new rule of civil procedure. The general policy of the prompt disposition of matters set forth in subdivision(a)of that rule continues to be applicable. II Inactive Cases The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system. The process is initiated by the court. After giving notice of intent to terminate an action for inactivity,the course of the procedure is with the parties. If the parties do not wish to pursue the case, they will take no action and"the Prothonotary shall enter an order as of course terminating the matter with prejudice for failure to prosecute." If a party wishes to pursue the matter,he or she will file a notice of intention to proceed and the action shall continue. a. Where the action has been terminated If the action is terminated when a party believes that it should not have been terminated, that party may proceed under Rule230(d)for relief from the order of termination. An example of such an occurrence might be the termination of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file the notice of intention to proceed. The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of the entry of the order of termination on the docket,subdivision(d)(2)provides that the court must grant the petition and reinstate the action. If the petition is filed later than the thirty-day period, subdivision(d)(3)requires that the plaintiff must make a showing to the court that the petition was promptly filed and that there is a reasonable explanation or legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of termination on the docket and for the failure to file the petition within the thirty-day period under subdivision(d)(2). B. Where the action has not been terminated An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a common law non pros which exits independently of termination under Rule 230.2.