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HomeMy WebLinkAbout10-2128 .41 COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS Judicial District, County Of CUMBERLAND NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. /p d/ad C iVi lepM NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date and in the case referenced below. 2-25-10 CV-0000027-10 This block will be signed ONLY when this notation is required under Pa/ If :?o t was R. .P.D No. 1001(6) in action R.C.P.D.J. No. 10086, This Notice of Appeal, when received by the District Justice, will operate as a District Justice, A COMPLAINT MUST BE FILED within twenty SUPERSEDEAS to the judgment for possession in this case. (20) days after NkV the NOTICE of APPEAL. Strait- d PMO-Way n DepAy PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see PA.R.C.P.D.J. No. 1001(7) in action before District Justice. IF NOT USED, detach from copy of notice of appeal to be seared upon appellee. PRAECIPE: To Prothonotary Enter rule upon TACO, Inc . appellee(s), to No a complaint in this appeal Name of app pee(s) (Common Pleas No. AD- ? /? CI VI ( ) within twenty (20) days after non Pros. Term ? - oraNomey or agent RULE: To TACO, Inc. Nam of appeoWs) (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) if you do not file a complaint within this time, a JUDGMENT OF NON PROS MA` (3) The date of service of this rule if service was by mail is the date of the mailing. Date: Ml17 ah J(P , 20 It) YOU MUST INCLUDE A COPY OF THE NOTICE OF JUDGMENTITRANSCRIPT FORM WITH THIS NOTICE OF APPEAL. AOPC 312-02 PA WHrrE - CDURT FILE TO BE FILED WRH PROTHONOTARY GREEN - COURT FILE YELLOW- APPELLANTS COPY PINK - COPY TO BE SERVED ON APPELLEE GOLD - COPY TO BE SERVED ON DISTRICT JUSTICE PROOF OF SERME OFN@TICE,OFAPPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED mrm TEN (10) DAYS AFTER filing of the notice of appeal. Check applicable boxes.) COMMONWEALTH OF PENNSYLVANIA COUNTY OF ; ss AFFIDAVIT. I hereby (swear) (affirm) that I served ? a copy of the Notice of Appeal, Common Pleas , upon the District Justice designated therein on (date of service) 20 , ? by personal service ? by (certified) (registered) mail, sender's receipt attached hereto, and upon the appellee, (name) , on ,20 ? by personal service ? by (certified) (registered) mail, sender's receipt attached hereto. (SWORN) (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS DAY OF 20 Signature of official before whom affidavit was made Title of official My commission expires on 20 #0 +Y'jt -HApq AU%; ad yL'ibt AWNNU JtlNwi r11t1rV7j19N10 8Z .C W4 9Z OR 0101 Jl+ I.C?N 6d 3H i. Signature of afriant t,: 4-A -'COMMONWEALTH OF PENNSYLVANIA COUNTY OF: CUMBERLAND Mag. Dist. No. 09-3-04 MDJ Name: Hon. THOMAS A. PLACEY Address: 104 S SPORTING HILL RD MECHANICSBURG, PA Telephone: (7 17 ) 761-8230 17050 COMFORT INN - DON ERWIN 2055 TECHNOLOGY DR. MECHANICSBURG, PA 17050 THIS IS TO NOTIFY YOU THAT: Judgment: DEFAULT JUDGMENT PLTF ® Judgment was entered for: (Name) Judgment was entered against: (Name) in the amount of $ 5,126.2, TACC, INC., COMFORT INN - DON ERWIN Defendants are jointly and severally liable. Damages will be assessed on Date & Time This case dismissed without prejudice. D Amount of Judgment Subject to Attachment/42 Pa.C.S. § 8127 F Portion of Judgment for physical damages arising out of residential lease Amount of Judgment $ 4,982.24 Judgment Costs $ 1 - Interest on Judgment $ .00 Attorney Fees $ Total $ 5,126.24 Post Judgment Credits $ Post Judgment Costs $ Certified Judgment Total $ ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENT/TRAN9CRIPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE JUDGMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. Date I certify that this is a true Date My commission expires first Monday of January, 2016 AOPC 315-07 NOTICE OF JUDGMENT/-TRANSCRIPT CIVIL CASE aPLAINTIFF: NAME and ADDRESS 'rTACC, INC. 18610 STARCREER DRIVE CORNELIUS, NC 28031 L J VS. DEFENDANT: NAME and ADDRESS FCONFORT INN - DON ERWIN 2055 TECHNOLOGY DR. MECHANICSBURG, PA 17050 L J Docket No.: CV- 0000027 -10 Date Filed: 1/19/10 (Date of Judgment) 2/25/10 DATE PRINTED: 2/25/10 11:26:00 AM Magisterial District Judge ings containing the judgment. , Magisterial District Judge SEAL TALC, INC. Plaintiff v. COMFORT INN and DONALD H. ERWIN Defendants TO: TACC, Inc. c/o Douglas C. Lovelace, Jr., Esquire 36 Donegal Drive Carlisle, PA 17013 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO: 10-2128 CIVIL TERM CIVIL ACTION - IN LAW -ri F... ~... ;tl~ = - - --+: ~~ r -- _,_, ~' _. ..._: _..., - ~ > -' .t ~ ~c y :~ .. ~ it You are hereby notified to file a written response to the enclosed Preliminary Objections to Plaintiff's Complaint within twenty (20) days from service hereof or a judgment may be entered against you. Date: May 26, 2010 By: Supreme Court ID No. 87365 2320 North Second Street Harrisburg, PA 17110 Telephone: (717) 238-6570 Attorneys for Defendants TALC, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO: 10-2128 CIVIL TERM v. CIVIL ACTION - IN LAW COMFORT INN and ; DONALD H. ERWIN Defendants PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes the Defendants, by and through their counsel, Cunningham & Chernicoff, P.C., who submit their Preliminary Objections to Plaintiffs Complaint and in support thereof aver as follows: BACKGROUND 1. On or about April 19, 2010, Plaintiff, TACO, Inc. (the "Plaintiff'), filed a Complaint (the "Complaint") against Defendants, Comfort Inn and Donald H. Erwin (collectively the "Defendants") with this Honorable Court. 2. In the Complaint, Plaintiff alleges it is owed $4,982.24, plus accrued interest and costs in exchange for goods it claims to have provided to Defendants. COUNTI LEGAL INSUFFICIENCY OF A PLEADING (DEMURRERS -COUNT I 3. The averments of Paragraphs 1 through 2 are incorporated herein by reference as if fully set forth. 4. According to The Pennsylvania Rules of Civil Procedure, Preliminary Objections may be filed on grounds of legal insufficiency of a pleading. See Pa. R.C.P. § 1028(a)(4). 5. Throughout Plaintiff s Complaint, Plaintiff that it provided goods to Defendants pursuant to an agreement with Plaintiff. 6. Plaintiff has failed to allege any agreement, either in writing or orally, between Plaintiffs and Individual Defendant, Donald H. Erwin ("Individual Defendant") to individually repay the debt allegedly owed by the corporate defendant, improperly identified in the Plaintiff s Complaint as Comfort Inn. 7. The business conducting and transacting business at the place of business indicated in Plaintiff s Complaint, 2055 Technology Parkway, Mechanicsburg, Cumberland County, Pennsylvania, is Insite Development, LLC ("Insite Development"). 8. All goods and transactions, which serve as the basis of Plaintiff's Complaint, involve Insite Development, not Comfort Inn. 9. In essence, Plaintiff has failed to allege any facts that would support any type of cause of action against the Individual Defendant or Comfort Inn. 10. The question presented by a demurrer is whether, in the facts averred, the law says with certainty that no recovery is possible. See enerallY Bundy v. Beard, 924 A.2d 723 (Pa. Commw. Ct. 2007). 11. One cannot be liable for a breach of contract unless one is a party to that contract. See Electron Energy Corp. v. Short, 408 Pa. Super. 563, 597 A.2d 175 (1991), appeal granted, 529 Pa. 664, 604 A.2d 1030 (1992) and order affd, 533 Pa. 66, 618 A.2d 395 (1993). 12. A person who is not a party to a contract cannot be held liable for its breach by one of the parties to the contract. See Fleetway Leasing Co. v. Wright, 697 A.2d 1000 (Pa. Super.1997). 13. In the instant matter, Plaintiff has clearly alleged that it provided goods to a business located at 2055 Technology Parkway, Mechanicsburg, Cumberland County, Pennsylvania, the address of Insite Development, LLC ("Corporate Defendant"). 14. Plaintiff has failed to present any allegations of an agreement between itself, the Individual Defendant or Comfort Inn. 15. Demurrer of Count I of Plaintiff s Complaint is proper because Plaintiff has not properly alleged that the Individual Defendant or Comfort Inn was a party to any contract with Plaintiff, thus the Individual Defendant and Comfort Inn cannot be found liable under a breach of contract theory. As such, Count I fails to state a claim upon which relief can be granted in regards to the Individual Defendant and Comfort Inn. WHEREFORE, Defendants, Insite Development, LLC, improperly identified as Comfort Inn, and Donald H. Erwin, hereby respectfully request that this Honorable Court sustain Count I of their Preliminary Objections and dismiss Count I of Plaintiffs Complaint with prejudice. In addition, Defendants hereby respectfully request that this Honorable Court issue an Order requiring Plaintiff to amend the caption of its Complaint to reflect the proper name of the corporate defendant, Insite Development, LLC, and remove the improper identification of Comfort Inn. COUNT II LEGAL INSUFFICIENCY OF A PLEADING (DEMURRER) -COUNT II 16. The averments of Paragraphs 1 through 15 are incorporated herein by reference as if fully set forth. 17. Count II of Plaintiffs Complaint alleges the Individual Defendant was unjustly enriched by the retainment of goods delivered to the Corporate Defendant. 18. As set forth in detail in Count I of the instant Preliminary Objections, and throughout Plaintiffs Complaint, Plaintiff alleges that all goods were delivered to the Corporate Defendant's place of business. 19. In order to establish a claim for unjust enrichment, a plaintiff must show that a defendant wrongfully or passively received benefit that would be unconscionable to allow such a party to retain. See enerally Crossgates Realty Inc. v. Moore 279 Pa. Super. 247, 420, A. 2d. 1125 (1980). 20. In this matter, Plaintiff alleges that it delivered goods to the Corporate Defendant's place of business. 21. Plaintiff has failed to raise any specific factual allegations to support a claim that the Individual Defendant directly received and/or benefitted from the alleged goods delivered directly to the Corporate Defendant. 22. Demurrer of Count II of Plaintiff s Complaint is proper because Plaintiff has failed to present any specific factual allegations that the Individual Defendant directly received and / or benefitted from Plaintiff's alleged shipment of goods to the Corporate Defendant, therefore, Plaintiff has failed to state a cause of action upon which relief can be granted against the Individual Defendant in Count II of its Complaint. WHEREFORE, Individual Defendant, Donald H. Erwin, hereby respectfully requests that this Honorable Court sustain Count II of his Preliminary Objections and dismiss Count II of Plaintiffs Complaint with prejudice. COUNT III LEGAL INSUFFICIENCY OF A PLEADING (DEMURRER) - COUNTS I & II 23. The averments of Paragraphs 1 through 22 are incorporated herein by reference as if fully set forth. 24. While not specifically stated or alleged, one can presume that Plaintiff is seeking liability against Individual Defendant under a theory of piercing the corporate veil or alter ego. 25. According to Pennsylvania Law, when determining whether or not a Corporate form should be disregarded, one must look to the following factors: a. Under capitalization; b. Failure to adhere to Corporate formalities; Substantial intermingling of Corporate and personal affairs; and d. Use of the Corporate form to perpetrate a fraud. See Lumax Industries. Inc. v. Aultman, 669 A.2d 893 (Pa. 1995). 26. Pennsylvania maintains a strong presumption against piercing the corporate veil. See Id. citing Wedner v. Employment Board, 449 Pa. 460, 464 296 A.2d 792, 794 (1972). 27. For the purposes of testing the legal sufficiency challenge of a pleading, a Preliminary Objection in the nature of a Demurrer admits as true all well pleaded material and relevant facts but it does not admit conclusions of law or averments of law. See Lumax, s~ra• 28. Plaintiff has failed to set forth any material, relevant or well pleaded facts, which, if true, would state a claim upon which relief may be granted under a theory of alter ego or piercing the corporate veil. 29. Plaintiff has failed to aver any specific material or relevant facts to support any legal conclusions that the Individual Defendant and Corporate Defendant are inseparable, and that the Individual Defendant is the alter ego of the Corporate Defendant. WHEREFORE, Individual Defendant, Donald H. Erwin, hereby respectfully requests that this Honorable Court sustain Count III of his Preliminary Objections to Plaintiff s Complaint and dismiss Counts I and II of Plaintiffs Complaint with prejudice. COUNT IV IN THE ALTERNATIVE INSUFFICIENT SPECIFICITY OF THE PLEADINGS PERTAINING TO ALL COUNTS AGAINST THE DEFENDANTS PURSUANT TO Pa.R.C.P. §1028~a)(3) 30. The averments of Paragraphs 1 through 29 are incorporated herein by reference as if fully set forth. 31. For all the reasons set forth in these Preliminary Objections, Defendants are unable to respond to the allegations set forth in the Plaintiff s Complaint due to Plaintiff s insufficient specificity in the pleadings. WHEREFORE, Defendants hereby respectfully request that, in the alternative, this Honorable Court sustain Count IV of their Preliminary Objections to Plaintiffs Complaint, order Plaintiff to amend its Complaint and grant Defendants such further relief as is just and proper. Respectfully submitted, CUNNINGHt~;1C~1,,&~CH~RNICOF~ P.C. Date: May 26, 2010 gy; Attoyhey LD. #~33 Kelly M. Knight, Esquire Attorney I.D. #87365 2320 North Second Street Harrisburg, PA 17110 Telephone: (717) 238-6570 Counsel for Defendants CERTIFICATE OF SERVICE I, Julieanne Ametrano, Legal Assistant with the law firm of Cunningham & Chernicoff, P.C. hereby certify that a true and correct copy ofPRELIMINARY OBJECTIONS OF { DEFENDANTS TO PLAINTIFF'S COMPLAINT was served by first-class mail, postage prepaid, on the following: Douglas C. Lovelace, Jr., Esquire 36 Donegal Drive Carlisle, PA 17013 Attorney for Plaintiff GHAM & CHERNICOFF, P.C. Date: Ma 26 2010 ~ ~lrut,~ /~9~~,~ , Y By. (. L Julieanne Ametrano A TACC, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA o Plaintiff v NO: 10-2128 CIVIL TERM - c V. CIVIL ACTION - IN LAW COMFORT INN and DONALD H. ERWIN Defendants J PRAECIPE TO WITHDRAW APPEARANCE Kindly withdraw the appearance of Cunningham & Chernicoff, P.C. on behalf of Donald H. Erwin in the above captioned action. By PupremetCoXID No: 23380 K 611y M. Knight, Esquire PA Supreme Court ID No: 87365 CUNNINGHAM & CHERNICOFF, P.C. 2320 North Second. Street Harrisburg, PA 17110 Telephone: (717) 238-6570 Date: July 9, 2010 PRAECIPE TO ENTER APPEARANCE Please kindly enter the appearance of Michael A. Scherer, Esquire, on behalf of Donald H. Erwin, the Defendant, in the above captioned action. By icha A. cherer, Esquire PA Supreme Court ID No: 19 West South Street Carlisle, PA 17013 L? Dated: (717) 249-6873 ? ?? CERTIFICATE OF SERVICE 1, Jennifer S. Lindsay, secretarfbrthe law office of Baric Scherer do hereby certify that a true and correct copy of the Praecipe to Withdraw Appearance/Enter Appearance in the above-captioned matter was sent first class U.S. Mail, First Class Mail, postage prepaid on this date, to the following: Robert E. Chernicoff, Esquire Kelly M. Knight, Esquire CUNNINGHAM & CHERNICOFF, P.C. 2320 North Second. Street Harrisburg, PA 17110 Date: August 19, 2010 Douglas C. Lovelace, Jr., Esquire 36 Donegal Drive Carlisle, PA 17013 Jen f r Li d ay F:\Home\KKNIGHT\DOCS\Erwin.Donald\TACC, Inc\Entry.Withdraw.wpd Of Ct/41 David D. Buell `" Renee X Simpson Prothonotary :, y 1St Deputy Prothonotary N _ .� Z .r '� "` ,� Irene E. ul�lorrow �irkS. SoFonage, ESQ �� �; Solicitor „so 2"� Deputy Prothonotary Office of the Prothonotary Cumberland County, Pennsylvania JO — 4 CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 29TH DAY OF OCTOBER, 2013,AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE-THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R.C.P.230.2. BY THE COURT, DAVID D. BUELL PROTHONOTARY One Courthouse Square • Suite 100 • Carlisle, PA 17013 • (717)240-6195 • Ta.x(717)240-6573