Loading...
HomeMy WebLinkAbout01-0509DAVID S. THOMAS, Plaintiff RONALD J. HUNZIKER, Defendant :IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNSYLVANIA :CIVIL ACTION - LAW :JURY TRIAL DEMANDED NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. 4th Floor, Court Administrator Cumberland County Courthouse Carlisle, PA 17013 240-6200 Dated:/~2~.~ SAIDIS, SHUFF, FLOWER & LINDSAY Supreme Court I.D. ~ 65551 26 West High Street Carlisle, PA 17013 (717) 243-6222 Attorney for Plaintiff DAVID S. THOMAS, : Plaintiff : RONALD J. HUNZIKER, : Defendant : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA COMPLAINT NOW, comes the Plaintiff, David S. Thomas, by and through his undersigned attorneys, Saidis, Shuff, Flower & Lindsay, and avers in support of this Complaint against Defendant, Ronald J. Hunziker as follows: 1. Plaintiff, David S. residing at 730 Meadow Drive, Pennsylvania 17011. 2. Defendant, Ronald J. with a last known address of Dauphin County, Pennsylvania Thomas is an adult individual, Camp Hill, Cumberland County, Hunziker, is an adult individual 221 North 62nd Street, Harrisburg, 17111. 3. On September 30, 1995, the Plaintiff and Defendant entered into a Partnership Agreement to operate a business under the name of Central Penn Eye Care to perform optical services with a principal place of business located 5244 Simpson Ferry Road, Cumberland County, Pennsylvania 17055. A true and correct copy of the Partnership Agreement is attached hereto, incorporated herein, by reference marked as Exhibit "A". CIVIL ACTION - LAW JURY TRIAL DEMANDED S~DI$ Carl~ PA the Plaintiff and Defendant were each of the partnership. 5. On or about October 1, 1995, business Pursuant to the terms of the Partnership Agreement, fifty (50%) percent owners the parties operated the known as Central Penn Eye Care and distributed profits and losses in accordance with the Partnership Agreement. 6. On or about October 1, 1998, Plaintiff became ill and was unable to see to the day-to-day operations of the business, as he had done since on or about October 1, 1995. 7. Defendant advised Plaintiff to take his time and recover and Defendant took over the running of the business. COUNT ONE BREACH OF CONTRACT Paragraphs 1 through 7 hereof are incorporated by reference as if the same were more fully set forth at l~ngth herein. 8. During the time the Plaintiff was recovering and Defendant was operating the business, the Defendant removed and retained approximately thirty thousand ($30,000.00) dollars worth of partnership assets, including eyeglass frames and merchandise. 9. During this time period, Defendant also received payments and funds from customers which were not deposited into the partnership bank account nor shared with Plaintiff. 2 10. separate bank account at which time he the partnership in the account for his own use. 11. Ail the above actions were conducted by the During this time period, Defendant opened up a placed funds belonging to Defendant without the prior notification, authorization or consent of the Plaintiff. 12. By Defendant's actions, he has breached the Partnership Agreement including but not limited to: a) Paragraph 4 dealing with Profits and Loss, b) Paragraph 5 dealing with Salaries and Drawings, and c) Paragraph 7 dealing with Management, Duties and Restrictions. WHEREFORE, Plaintiff, David S. Thomas, demands judgment against Defendant, Ronald J. Hunziker, in an amount in excess of twenty-five thousand ($25,000.00) dollars, exclusive of interest and costs and such other relief as the Court deems appropriate. Paragraphs reference as if herein. COUNT TWO BREACH OF FIDUCIARY DUTIES 1 through 12 hereof are incorporated by the same were more fully set forth at length 3 13. As a partner in the partnership doing business as Central Penn Eye Care, Defendant has a fiduciary duty to the Plaintiff and to the partnership. 14. Included in that fiduciary duty is the duty of Defendant to hold as Trustee any profits derived by him without the consent of the other partners from any transaction connected to the conduct of the partnership. See Pennsylvania Uniform Partnership Act, 15 Pa.C.S.A.~8334. 15. Defendant has retained partnership assets and kept partnership profits for himself, without accounting for or sharing the same with the Plaintiff. 16. As a result of the actions of the he is in breach of his fiduciary duties owing to the partnership. WHEREFORE, Plaintiff, Defendant, Plaintiff and the David S. Thomas, demands judgment against Defendant, Ronald J. Hunziker, in an amount in excess of twenty-five thousand ($25,000.00) dollars, exclusive of interest and cost and such other relief as the Court deems appropriate. COUNT THREE CIVIL CONVERSION Paragraphs 1 through 16 hereof are incorporated by reference as if the same were more fully set forth at length herein. 4 17. It is believed and therefore averred that Defendant has converted to his personal use and deprived Plaintiff of his right in, use and/or possession of partnership assets and profits. 18. It is believed and therefore averred that Defendant's deprivation and conversion of Plaintiff's right in, use and/or possession of the aforementioned assets and profits have been without Plaintiff's consent or lawful justification. 19. As a ~esult of the actions of Defendant, Plaintiff has incurred damages in excess of dollars. WHEREFORE, Plaintiff, against Defendant, Ronald twenty-five thousand ($25,000.00) David S. Thomas, demands judgment J. Hunziker, in an amount in excess of twenty-five thousand and cost and such other relief as the Court COUNT FOUR REQUEST FOR ACCOUNTING Paragraph~ 1 through 15 hereof are incorporated by reference as if the same were more fully set forth at length herein. 20. Central ($25,000.00) dollars, exclusive of interest deems appropriate. As partner in the partnership doing business as Penn Eye Care, Plaintiff has the right to review all 5 books, statements, bank accounts and other records relating to business transacted by or on behalf of 21. Despite Plaintiff's requests aforementioned partnership information has refused to produce the same or inspection of the same. the partnership. to review the and documents, Defendant otherwise allow Plaintiff's 22. Plaintiff has been wrongfully excluded from possession of partnership property and profits, and as such has the right to a formal accounting from the Defendant under the Pennsylvania Uniform Partnership Act, 15 Pa.C.S.A.~8335. WHEREFORE, in addition to the monetary damages set forth in Counts I through IV hereof, Plaintiff demands that the Court order Defendant to turn over to Plaintiff all partnership but not limited to corporate books, documents including, receipts, deposits, bank accounts, invoices, and patient files. Respectfully submitted, SAIDIS, SHUFF, FLOWER & LINDSAY By: L. , Esquire Supreme Court ID #~5551 26 West High Street Carlisle, PA 17013 (717) 243-6222 Counsel for Plaintiff 6 VERIFICATION I verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. DATED: David S. Thomas ~A~DIS C. arltsle~ PA PARTNERSHIP AGREEMENT THIS AGREEMENT, executed this between RONALD J. HUNZIKER and DAVID S. collectively referred to as the "Partners". WITNESSETH: day of September, 1995, THOMAS, hereinafter 1. Name and Business. The parties do hereby form a Partnership under the name of Central Penn Eyecare to perform optical services as agreed between the Partners. The principal office of the Partnership shall be maintained at 5244 Simpson Ferry Road, Cumberland County, Pennsylvania 17055. The ownership interests of the Partners subject to other provisions of this Agreement, shall be as follows: Ronald J. Hunziker 50% David S. Thomas 50% 2. Term. The Partnership shall begin on October 1, 1995 and shall continue until terminated; provided, however, that any acts, including, but not limited to the entry into negotiations for and the execution of any agreements, commitments, contracts, writings or other understandings by any Partner in furtherance of the business of the Partnership prior to such date is hereby ratified and confirmed as an authorized and valid action of the Partnership. the sum of $10,000.00 in cash, contribute the following amounts: Ronald J. Hunziker David S. Thomas The Partners agree to contribute of which each Partner Capital. The initial capital of the Partnership shall be shall $5,000.00 $5,000.00 in proportion to their respective ownership interests any additional funds necessary to organize the Partnership or to enter into and carry on the business of the Partnership. A separate capital account shall be maintained for each Partner. No Partner shall withdraw any part of his capital account without the written consent of all Partners. If the capital account of a Partner becomes impaired, his share of subsequent Partnership profits shall be first credited to his capital account until that account has been restored, before such profits are credited in his income account. 4. Profits and Loss. The net losses and the net profits shall be borne by the Partners in accordance with their respective Partnership ownership interests. A separate income account shall be maintained for each Partner. Partnership profits and losses shall be charged or credited to the separate income account of each Partner. If a Partner has no credit balance in his income account, losses shall be charged to his capital account. Profits and losses shall be credited or debited to the income account of each Partner as soon as practicable after December 31 of each year or at such more frequent times as agreed to by the Partners. 5. Salaries and Drawings. The cash flow of the Partnership, if any, shall be distributed at the discretion of the Partners, but at least semiannually. No Partner shall receive salary, compensation or guaranteed payments unless such salary, compensation or guaranteed payments be approved by a unanimous vote of the Partners. In addition to distributions of cash flow by the Partners, each Partner may, from time to time, withdraw the credit balance inuring to him by reason of his income account with the unanimous consent of all Partners. 6. Interest. No interest shall be paid on the initial contributions to the capital of the Partnership or on any subsequent contributions of capital except for interest earned on money deposited in an interest-bearing checking account. If, however, the Partners unanimously agree to borrow money from any Partner, and that borrowing is evidenced by a note executed by all Partners, then interest in accordance with the terms of the note may be paid. 7. Management, Duties and Restrictions. Each of the Partners shall have an equal voice in the management of the Partnership and shall have the right and power to do and perform all acts incident to the business of the Partnership and deemed by said Partners to be desirable and beneficial to the interest of the Partnership; provided, however, that no Partner, without the consent of all the Partners, may: (a) Borrow money in the Partnership name for Partnership purposes or utilize collateral owned by the Partnership as security for such loans; (b) Assign, transfer, pledge, compromise, or release any of the claims of, or debts due, the Partnership, except upon payment in full, or arbitrate or consent to the arbitration of any disputes or controversies of the Partnership; (c) Make, execute, or deliver any assignment for the benefit of creditors; or any bond, confession of judgment, chattel mortgage, deed, guarantee, indemnity bond, surety bond, or contract to sell or contract of sale of all or substantially all of the property of the Partnership; (d) Mortgage any Partnership real estate or any interest therein or enter into any contract for any such purpose; (e) Pledge or hypothecate or in any manner transfer his interest in the Partnership, except to the other parties to this Partnership Agreement as provided herein; (f) Become a surety, guarantor, or accommodation party to any obligation; (g) Make oral or written contracts and/or purchases in excess of Five Hundred Dollars ($500.00), except for emergency situations. 4 Each Partner may have other business interests and may engage in any other business or trade, profession or employment whatsoever, on his own account, or in Partnership with or as an employee of or as an officer, director or shareholder of any other person, firm or corporation, and he shall not be required to devote his entire time to the business of the Partnership. No Partner shall be obligated to devote more time and attention to the conduct of the business of the Partnership than shall be required for the supervision of the ownership, operation and management of the Partnership. to vacations, sick leaves, business as follows: (a) Each Partner shall be entitled to two (2) weeks of vacation in each calendar year to be taken at the time that may be most convenient to the Partnership and the Partners individually. Any vacation not used in one year may be used in a future year only with the approval of the Partners. (b) Each Partner shall be entitled to one (1) week of sick leave each calendar year without adjustment in earnings because of actual sickness or accident to the Partner or to any member of his or her immediate family. Sick leave not used in one year may not be carried over to future years or used for additional vacation. Vacations and Sick Leave. Each Partner shall be entitled and absences from the Partnership 5 (c) In addition to the vacation and sick leave provided for in this paragraph, each Partner shall be entitled to be absent from the Partnership business for five (5) days each calendar year attending professional meetings or taking for the purpose of postgraduate courses. (d) Should any Partner become fully or partially disabled, no compensation shall be paid to the disabled Partner unless the non-disabled Partner agrees to certain compensation. It shall be the responsibility of each Partner to obtain his own disability insurance. Premiums for disability insurance may be paid from the Partnership bank account if all Partners agree to this manner of payment. 9. Bankinq. Ail funds of the Partnership shall be deposited in its name in such checking account or accounts as shall be designated by the Partners. Withdrawals therefrom may be made upon checks signed by any Partner. Maintaining the bank account or accounts will be the responsibility of Ronald J. Hunziker, Partner. 10. Books. The Partnership books shall be maintained at the office of the Partnership, provided that each Partner or his duly authorized attorneys or accountants shall at all reasonable times 6 have access thereto. The taxable year of the Partnership shall be the calendar year. The books shall be closed and balanced at the end of each such calendar year. Preparation of monthly statements is the responsibility of Ronald J. Hunziker, Partner. Maintaining all prepared statements, other relevant documents and distributing all information to the Partners shall be the responsibility of David S. Thomas, Partner. Preparation of the annual Partnership tax returns will be the responsibility of David S. Thomas, Partner. 11. Voluntary Termination. The Partnership may be dissolved at any time by agreement of the Partners, in which event the Partners shall proceed with reasonable promptness to sell any personal or real property owned by the Partnership and to liquidate the business of the Partnership. Upon dissolution, the assets of the Partnership business shall be used and distributed in the following order: (a) to pay or provide for the payment of all Partnership liabilities and liquidating expenses and obligations (including loan repayments to the Partners so entitled, if any); (b) to pay to each Partner having a positive balance in his income account the amount thereof; (c) to balance the capital accounts of the Partners, in proportion to their Partnership Interests; (d) to discharge the balance of the capital accounts of the Partners; and (e) any excess shall be distributed prorata in accordance with the Partnership Interests. 7 12. Withdrawal. (a) Any Partner shall have the right to withdraw from the Partnership by written notice of intention to withdraw served upon the Partners within sixty (60) days prior to his effective date of termination. The withdrawal of a Partner shall have no effect upon the continuation of the Partnership business. The remaining Partner, or, if more than one, Partners (herein "Partners") shall, at their option, have the right (1) to cause the Partnership to purchase the interest of the withdrawing Partner; or (2) to purchase themselves the withdrawing Partner's interest in the Partnership; or (3) to terminate and liquidate the Partnership business; or (4) to consent to a transfer of such Partnership interest to a third party. If the remaining Partners elect to have the Partnership purchase the interest of the withdrawing Partner, they shall serve notice in writing of such election upon the withdrawing Partner at the office of the Partnership within two (2) weeks after receipt of his notice of intention to withdraw. If the Partnership determines not to purchase the Partnership Interest of the withdrawing Partner, any one or group of remaining Partners may individually or collectively purchase said interest by serving notice in writing of such election upon the withdrawing Partner at the office of the Partnership within two (2) weeks after receipt of his notice of intention to withdraw under the same rights and conditions as if the remaining Partners, acting for the Partnership, elected to so purchase. (b) If either the Partnership or one or more remaining Partners elect to purchase the interest of the withdrawing Partner or Partners in the Partnership, the method for determining purchase price and payment shall be the same as stated in paragraph 13 with reference to the purchase of a decedent's interest in the Partnership, except that if the withdrawing Partner elects a single payment, the purchase price shall be eighty (80%) percent of the value of the Partnership Interest as determined in accordance with paragraph 13 payable within sixty (60) days. If a single payment is not elected, a twenty-five percent (25%) payment of the withdrawing Partner's interest shall be transferred within sixty (60) days from the withdrawal date with the balance plus interest at prime plus one and one-half one year from the withdrawal terms of all Partners. (1 1/2%) percent, to be paid within date or upon mutually agreed upon (c) If neither the Partnership nor one or more remaining Partners elect to purchase the interest of the withdrawing Partner in the Partnership, the remaining Partners shall either consent to a proposed sale of the withdrawing Partner's interest or all Partners shall proceed with reasonable promptness to sell and to liquidate the business of the Partnership. The procedure as to liquidation and distribution of the assets of the Partnership business shall be the same as stated in paragraph 10. (d) If the withdrawing Partner decides to sell and assign his Partnership Interest, and if the remaining Partners consent to such transfer, the Partner or Partners acquiring said interest shall succeed to this interest of the withdrawing Partner for all purposes of this Agreement. The acquiring Partner(s) shall stand in the place of the withdrawing Partner, shall enjoy all rights and bear all liabilities just as the withdrawing Partner would have so done had he remained a Partner hereunder. Any acquiring Partner shall execute a Joinder Agreement which shall be a counterpart of this Agreement and any revisions or restatements hereof. 13. Death. The Partnership shall not be dissolved by the death of a Partner. Upon the death of any Partner, the spouse of the deceased Partner shall have the option to continue to engage in the Partnership's business. If the spouse elects not to continue in the Partnership's business, the spouse shall succeed to all of the rights and be subject to all of the obligations of the deceased Partner under this Partnership Agreement. If the spouse does not exercise the option to continue in the business, the Partnership may, at its option, exercisable in writing, purchase and retire the interest of the deceased Partner by giving written notice to the personal representative of the deceased Partner's estate within ninety (90) days after the death of the deceased Partner. If the Partnership does not exercise its option hereunder, then within thirty (30) days after the Partnership's failure to exercise such option, any Partner may, at 10 his option, exercisable in writing, purchase the interest of the deceased Partner. In the event that more than one (1) Partner exercises the option under this Subsection, then, in that event, the interest of the deceased Partner shall be equally divided among those Partners. The Partner or Partners purchasing such interest shall be the sole and exclusive owner or owners of such interests. Notwithstanding any other provision in this Partnership Agreement to the contrary, the purchasing Partner or Partners shall have the right, at their respective option, individually or collectively, to prepay the purchase price, in whole or in part, at any time. Any such prepayment shall be applied first to principal and then to interest. If the deceased Partner's Partnership interest passes to any other person or no election is made by the spouse, Partnership, or Partners, as described herein, the Partnership is required to pay the fair market value of the deceased Partner's Partnership interest to the respective beneficiaries. The price at which the Partnership must pay to beneficiaries or the price the surviving Partners may purchase the interest of the deceased Partner hereunder shall be determined in accordance with provision 13 hereinafter. The payment of the deceased Partner's interest shall be executed by a payment equivalent to twenty-five (25%) percent of the deceased Partner's interest at the date of death payable within ninety (90) days after the date of death with the remaining balance plus interest at prime plus one 11 and one-half (1 1/2%) percent, to be paid within one year from the date of death or upon mutually agreed upon terms of all Partners. 14. Valuation of the Interest of a Selling or Deceased Partner. On exercise of any aforesaid options described in Paragraph 11 or 12 of this Agreement, the remaining Partners skall pay to the person legally entitled thereto the fair market value of such partnership interest together with the full unwithdrawn portion of such deceased, withdrawing or terminated Partner's distributive share of any net profits earned by the Partnership between the date of such accounting and the date of dissolution of the Partnership. Fair Market Value for purposes of determining the valuation of property shall be that value agreed upon among the Partners, of if they are unable to agree upon a value, by a fair market value determined by two independent attorneys or C.P.A.s in the area and taking the average of their two valuations, with one appraiser being selected by the remaining Partners and the other appraiser being selected by the outgoing Partner or personal representative of the deceased Partner. 15. Votinq. Except as otherwise provided herein, each Partner shall be entitled to one vote in all matters requiring unanimous consent or other Partnership decision provided that the death, insolvency, bankruptcy or placing into receivership of any Partner shall terminate his voting rights, managerial rights and 12 any and all other decision-making rights hereunder; in such event, the remaining Partners shall have full power and authority to vote, manage and decide as to all Partnership matters. 16. Insurance. The Partnership shall procure adequate liability and fire insurance; the type, amount and company or companies may be determined by the Partners. 17. Assiqnment. Except as provided herein, neither this Agreement, nor any interest of any of the parties herein (including any interest in monies belonging to or which may accrue to the Partnership as a result of rentals or sales of property) may be assigned, pledged, transferred or hypothecated, without the prior written consent of the other Partners. The right of any person, firm or corporation claiming by, through or under any party hereto (including, but not creditors, receivers, administrators, etc.) limiting the same to judgment or other trustees, assignees, garnishees, executors, to assert any claim against the right, title or interest of any Partner shall be limited solely to the right to claim or receive after the distribution of cash receipts to the respective parties has been completed and then only subject to the equities of the other parties as in this Agreement set forth. 18. Gender. When the context so requires, the masculine gender may be substituted for the feminine, the feminine for the 13 masculine, and the neuter for either, and vice versa. The singular shall be substituted for the plural, and vice versa. 19. Interpretation. This Agreement shall be interpreted in accordance with the laws of the Commonwealth of Pennsylvania. Paragraph headings are for convenience only. This Agreement shall be binding upon the parties hereto, their heirs, representatives, successors and assigns. IN WITNESS WHEREOF, the parties hereto, INTENDING TO BE LEGALLY BOUND, have executed this Agreement the day and year first above written. WITNESS: 14 SHERIFF'S RETURN - CASE NO: 2001-00509 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND THOMAS DAVID S VS HUNZIKER RONALD J OUT OF COUNTY R. Thomas Kline duly sworn according to law, and inquiry for the within named DEFENDANT HUNZIKER RONALD J but was unable to locate Him deputized the sheriff of DAUPHIN , Sheriff or Deputy Sheriff who being says, that he made a diligent search and , to wit: in his bailiwick. County, serve the within COMPLAINT & NOTICE He therefore Pennsylvania, to On March 6th , 2001 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 DEP. DAUPHIN CO 30.50 .00 67.50 03/06/2001 SAIDIS,SHUFF, R/ Thomas ~lln~ Sheriff of Cumberland County FLOWER, LINDSAY Sworn and subscribed to before me this /L~ day of ~ ~,~ ! A.D. ~ Prothonotary' Mar5, Jane Snyder Real Emate Deputy William T. Tully Solicitor Dauphin County Hamsburg, Pennsylvania 17101 ph: (717)255-2660 fax: (717) 255-2889 Jack Lotwick Sheriff Ralph G. McAllister Chief Deputy Michael W~ Rinehart Assistant Chief Deputy Commonwealth of Pennsylvania County of Dauphin AND NOW: February 27, NOTICE & COMPLAINT IN CIVIL ACTION HUNZIKER RONALD J to HIM of the original : THOMAS DAVID S vs : HUNZIKER RONALD J Sheriff's Return No. 0275-T - -2001 OTHER COUNTY NO. 01-509 2001 at 8:30AM served the within upon by personally handing 1 true attested copy(ies) NOTICE & COMPLAINT IN CIVIL ACTION and making known to him/her the contents thereof at DAUPHIN COUNTY SHERIFF'S OFFICE RM 104 FRONT & MARKET STS. HBG, PA 17101-0000 Sworn and subscribed to before me this 27TJ{~day of FEBRUARY, 2001 PROTHONOTARY So Answers, Sheriff of Dauphin County, Pa. BY-//~ S~her~ Sheriff's Costs: $30.50 PD 02/01/2001 RCPT NO 145886 STUMP In The Court of Common Pleas of Cumberland County, Pennsylvania David S. Thomas Ronald J. Hunziker NO. 01-509 C~r~I Now, 1 / 25 / 01 ,20 O ~, I, SHERIFF OF CUMBERLAND COLrNTy, PA, do hereby deputize the Sheriff of Dauphin County to execute flais Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA ]NOW, within upon by hgnding to and made known to Affidavit of Service ,20 ,at o'clock copy of the orig/nal So answers, 1VI. served the the contents tiner~of. Sworn and subscribed before me this day of ,20 Sheriffof COSTS SER%qCE MILEAGE AFFIDAVIT County, PA DAVID $. TIiOMA$, RONALD J, IN THE COUKT OF COMuMON PLEAS CL~4~I~XLLAND COUNt'T, PXNNSYLVANIA NO. 01-509 Ci~I CIVIL ACl'ION - LAW IUKY TR/AL DEMANDED I~Bm.~I~AIIY OBIF..CTION~ L lm-mci~t Sp~i~icll1, in a Pl~adi~ 1. Coua~ I fl~h IV ~ Comphint f~i[ ~o spedfc~ly idemif7 th~ ~nount lo~t o~ fl~ m~m ~9' which s~x.h her~n ~ed ,gaimt him. 06/08/01 SAIDIS SHIJFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA DAVID S. THOMAS, : Plaintiff : RONALD J. HUNZIKER, : Defendant : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. o,~ CIVIL ACTION - LAW JURY TRIAL DEMANDED S. Thomas, by and through Shuff, Flower & Lindsay, and against Defendant, Ronald J. Thomas is an Camp Hill, AMENDED COMPLAINT Ronald J. Hunziker, NOW, comes the Plaintiff, David his undersigned attorneys, Saidis, avers in support of this Complaint Hunziker as follows: 1. Plaintiff, David S. residing at 730 Meadow Drive, Pennsylvania 17011. 2. Defendant, with a last known address of 221 North Dauphin County, Pennsylvania 17111. 3. On September 30, 1995, the entered into a Partnership Agreement adult individual, Cumberland County, is an adult individual 62nd Street, Harrisburg, Plaintiff and Defendant to operate a business under the name of Central Penn Eye Care to perform optical services with a principal place of business located 5244 Simpson Ferry Road, Cumberland County, Pennsylvania 17055. A true and correct copy of the Partnership Agreement is attached hereto, incorporated herein, by reference marked as Exhibit "~'. SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA the Plaintiff and Defendant were each fifty of the partnership. 5. On or about October 1, Pursuant to the terms of the Partnership Agreement, (50%) percent owners 1995, the parties operated the business known as Central Penn Eye Care and distributed profits and losses in accordance with the Partnership Agreement. 6. On or about October 1, 1998, Plaintiff became ill and was unable to see to the day-to-day operations of the business, as he had done since on or about October 7. Defendant advised Plaintiff to recover 1, 1995. take his time and and Defendant took over the running of the business. COUNT ONE BREACH OF CONTRACT Paragraphs 1 through 7 hereof are incorporated by reference as if the same were more fully set forth at length herein. 8. During the time the Plaintiff was recovering and Defendant was operating the business, the Defendant removed and retained approximately thirty thousand worth of partnership assets, including merchandise. 9. During this time period, ($30,000.00) dollars eyeglass frames and Defendant also received payments and funds from customers which were not deposited into the partnership bank account nor shared with Plaintiff. SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA 10. During this time period, Defendant opened up a separate bank account at which time he placed funds belonging to the partnership in the account for his own use. 11. Ail the above actions were conducted by the Defendant without the prior notification, authorization or consent of the Plaintiff. 12. By Defendant's actions, he has breached the Partnership Agreement including but not limited to: a) Paragraph 4 dealing with Profits and Less, b) Paragraph 5 dealing with Salaries and Drawings, and c) Paragraph 7 dealing with Management, Duties and Restrictions. 13. Ail totaled, the Defendant removed, retained or otherwise kept for himself, partnership proceeds in excess of $80,0O0.O0. WHEREFORE, Plaintiff, David S. Thomas, demands judgment against Defendant, Ronald J. Hunziker, in an amount in excess of twenty-five thousand ($25,000.00) dollars, exclusive of interest and costs and such other relief as the Court deems appropriate. SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA Paragraphs reference as if herein. 14. COUNT TWO BREACH OF FIDUCIARY DUTIES 1 through 13 hereof are incorporated by the same were more fully set forth at length Central Penn Eye Care, Defendant has a Plaintiff and to the partnership. 15. Defendant As a partner in the partnership doing business as fiduciary duty to the Included in the fiduciary duty is the duty of to hold as Trustee any profits derived by him without the consent to the conduct of the partnership. Partnership Act, 15 16. Defendant partnership profits of the other partners from any transaction connected See Pennsylvania Uniform Pa.C.S.A.§8334. has retained partnership assets and kept for himself, without accounting for or sharing 17. breach of his partnership. WHEREFORE, the same with the Plaintiff. As a result of the actions of the Defendant, he is in fiduciary duties owing to the Plaintiff and the Plaintiff, David S. Thomas, demands judgment against Defendant, Ronald J. Hunziker, in an amount in excess of twenty-five thousand ($25,000.00) dollars, exclusive of interest and cost and such other relief as the Court deems appropriate. COUNT THREE CIVIL CONVERSION Paragraphs 1 through 17 hereof are incorporated by reference as herein. if the same were more fully set forth at length has right in, profits. 19. It is believed and therefore averred that deprivation and conversion of Plaintiff's right in, possession of the aforementioned assets and profits without Plaintiff's consent or lawful justification. 20. As a result of the actions of Defendant, 18. It is believed and therefore averred that Defendant converted to his personal use and deprived Plaintiff of his use and/or possession of partnership assets and in excess of twenty-five thousand incurred damages dollars. WHEREFORE, against Defendant's use and/or have been Plaintiff has ($25,000.00) Plaintiff, David S. Thomas, demands judgment Defendant, Ronald J. Hunziker, in an amount in excess of SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street 5 twenty-five thousand {$25,000.00) dollars, exclusive of interest and cost and such other relief as the Court deems appropriate. Respectfully submitted, SAIDIS, SHUFF, FLOWER & LINDSAY Date: By: L Hitchlngs, squire Supreme Court ID #65551 26 West High Street Carlisle, PA 17013 (717) 243-6222 Counsel for Plaintiff SAIDIS SHUFF, FLOWER & LINDSAY 26 w. High Street Carlisle, PA VERIFICATION I verify that the statements made in the foregoing Amended Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. ~ 4904, relating to unsworn falsification to authorities. DATED: SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA PARTNERSHIP AGREEMENT THIS AGREEMENT, executed this between RONALD J. HUNZIKER and collectively referred to as the WITNESSETH: ~ day of September, 1995, DAVID S. THOMAS, hereinafter "Partners". 1. Name ahd Business. The parties do hereby form a Partnership under the name of Central Penn Eyecare to perform optical services as agreed between the Partners. The principal office of the Partnership shall be maintained at 5244 Simpson Ferry Road, Cumberland County, Pennsylvania 17055. The ownership interests of the Partners subject to other provisions of this Agreement, shall be as follows: Ronald J. Hunziker 50% David S. Thomas 50% 2. Term. The Partnership shall begin on October 1, 1995 and shall continue until terminated; provided, however, that any acts, including, but not limited to the entry into negotiations for and the execution of any agreements, commitments, contracts, writings or other understandings by any Partner in furtherance of the business of the Partnership prior to such date is hereby ratified and confirmed as an authorized and valid action of the Partnership. Each Partner may have other business interests and may engage in any other business or trade, profession or employment whatsoever, on his own account, or in Partnership with or as an employee of or as an officer, director or shareholder of any other person, firm or corporation, and he shall not be required to devote his entire time to the business of the Partnership. No Partner shall be obligated to devote more time and attention to the conduct of the business supervision of Partnership. of the Partnership than shall be required for the the ownership, operation and management of the to vacations, sick leaves, and absences from the business as follows: (a) Each Partner shall be entitled to two Vacations and Sick Leave. Each Partner shall be entitled Partnership (2) weeks of vacation in each calendar year to be taken at the time that may be most convenient to the Partnership and the Partners individually. Any vacation not used in one year may be used in a future year only with the approval of the Partners. (b) Each Partner shall be entitled to one (1) week of sick leave each calendar year without adjustment in earnings because of actual sickness or accident to the Partner or to any member of his or her immediate family. Sick leave not used in one year may not be carried over to future years or used for additional vacation. (c) In addition to the vacation and sick leave provided for in this paragraph, each Partner shall be entitled to be absent from the Partnership business for five (5) days each calendar year for the purpose of attending professional meetings or taking postgraduate courses. (d) Should any Partner become fully or partially disabled, no compensation shall be paid to the disabled Partner unless the non-disabled Partner agrees to certain compensation. It shall be the responsibility of each Partner to obtain his own disability insurance. Premiums for disability insurance may be paid from the Partnership bank account if all Partners agree to this manner of payment. 9. Bankinq. All funds of the Partnership shall be deposited in its name in such checking account Or accounts as shall be designated by the Partners. Withdrawals therefrom may be made upon checks signed by any Partner. Maintaining the bank account or accounts will be the responsibility of Ronald J. Hunziker, Partner. 10. Books. The Partnership books shall be maintained at the office of the Partnership, provided that each Partner or his duly authorized attorneys or accountants shall at all reasonable times have access thereto. The taxable year of the Partnership shall be the calendar year. The books shall be closed and balanced at the end of each such calendar year. Preparation of monthly statements is the responsibility of Ronald J. Hunziker, Partner. Maintaining all prepared statements, other relevant documents and distributing all information to the Partners shall be the responsibility of David S. Thomas, Partner. Preparation of the annual Partnership tax returns will be the responsibility of David S. Thomas, Partner. 11. Voluntary Termination. The Partnership may be dissolved at any time by agreement of the Pa/tners, in which event the Partners shall proceed with reasonable promptness to sell any personal or real property owned by the Partnership and to liquidate the business of the Partnership. Upon dissolution, the assets of the Partnership business shall be used and distributed in the following order: (a) to pay or provide for the payment of all Partnership liabilities and liquidating expenses and obligations (including loan repayments to the Partners so entitled, if any); (b) to pay to each Partner having a positive balance in his income account the amount thereof; (c) to balance the capital accounts of the Partners, in proportion to their Partnership Interests; (d) to discharge the balance of the capital accounts of the Partners; and (e) any excess shall be distributed prorata in accordance with the Partnership Interests. 7 12. Withdrawal. (a) Any Partner shall have the right to withdraw from the Partnership by written notice of intention to withdraw served upon the Partners within sixty (60) days prior to his effective date of termination. The withdrawal of a Partner shall have no effect upon the continuation of the Partnership business. The remaining Partner, or, if more than one, Partners (herein "Partners") shall, at their option, have the right (1) to cause the Partnership to purchase the interest of the withdrawing Partner; or (2) to purchase themselves the withdrawing Partner's interest in the Partnership; or (3) to terminate and liquidate the Partnership business; or (4) to consent to a transfer of such Partnership interest to a third party. If the remaining Partners elect to have the Partnership purchase the interest of the withdrawing Partner, they shall serve notice in writing of such election upon the withdrawing Partner at the office of the Partnership within two (2) weeks after receipt of his notice of intention to withdraw. If the Partnership determines not to purchase the Partnership Interast of the withdrawing Partner, any one or group of remaining Partners may individually or collectively purchase said interest by serving notice in writing of such election upon the withdrawing Partner at the office of the Partnership within two (2) weeks after receipt of his notice of intention to withdraw under the same rights and conditions as if the remaining Partners, acting for the Partnership, elected to so purchase. 8 (b) If either the Partnership or one or more remaining Partners elect to purchasethe interest of the withdrawing Partner or Partners in the Partnership, the method for determining purchase price and payment shall be the same as stated in paragraph 13 with reference to the purchase of a decedent's interest in the Partnership, except that if the withdrawing Partner elects a single payment, the purchase price shall be eighty (80%) percent of the value of the Partnership Interest as determined in accordance with paragraph 13 payable within sixty (60) days. If a single payment is not elected, a twenty-five percent (25%) payment of the withdrawing Partner's interest shall-be transferred within sixty (60) days from the withdrawal date with the balance plus interest at prime plus one and one-half one year from the withdrawal terms of all Partners. (1 1/2%) percent, to be paid within date or upon mutually agreed upon (c) If neither the Partnership nor one or more remaining Partners elect to purchase the interest of the withdrawing Partner in the Partnership, the remaining Partners shall either consent to a proposed sale of the withdrawing Partner's interest or all Partners shall proceed with reasonable promptness to sell and to liquidate the business of the Partnership. The procedure as to liquidation and distribution of the assets of the Partnership business shall be the same as stated in paragraph 10. (d) If the withdrawing Partner decides to sell and assign his Partnership Interest, and if the remaining Partners 9 consent to such transfer, the Partner or Partners acquiring said interest shall succeed to this interest of the withdrawing Partner for all purposes of this Agreement. The acquiring Partner(s) shall stand in the place of the withdrawing Partner, shall enjoy all rights and bear all liabilities just as the withdrawing Partner would have so done had he remained a Partner hereunder. Any acquiring Partner shall execute a Joinder Agreement which shall be a counterpart of this Agreement and any revisions or restatements hereof. 13. Death. The Partnership shall not be dissolved by the death of a Partner. Upon the death of any Partner, the spouse of the deceased Partner shall have the option to continue to engage in the Partnership's business. If the spouse elects not to continue in the Partnership's business, the spouse shall succeed to all of the rights and be subject to all of the obligations of the deceased Partner under this Partnership Agreement. If the spouse does not exercise the option to continue in the business, the Partnership may, at its option, exercisable in writing, purchase and retire the interest of the deceased Partner by giving written notice to the personal representative of the deceased Partner's estate within ninety (90) days after the death of the deceased Partner. If the Partnership does not exercise its option hereunder, then within thirty (30) days after the Partnership's failure to exercise such option, any Partner may, at 10 his option, exercisable in writing, purchase the interest of the deceased Partner. In the event that more than one (1) Partner exercises the option under this Subsection, then, in that event, the interest of the deceased Partner shall be equally divided among those Partners. The Partner or Partners purchasing such interest shall be the sole and exclusive owner or owners of such interests. Notwithstanding any other provision in this Partnership Agreement to the contrary, the purchasing Partner or Partners shall have the right, at their respective option, individually or collectively, to prepay the purchase price, in whole or in part, at any time. Any such prepayment shall be applied first to principal and then to interest. If the deceased Partner's Partnership interest passes to any other person or no election is made by the spouse, Partnership, or Partners, as described herein, the Partnership Js required to pay the fair market value of the deceased Partner's Partnership interest to the respective beneficiaries. The price at which the Partnership must pay to beneficiaries or the price the surviving Partners may the deceased Partner hereunder shall be with provision 13 hereinafter. The purchase the interest of determined in accordance payment of the deceased Partner's interest shall be executed by a payment equivalent to twenty-five (25%) percent of the deceased Partner's interest at the date of death payable within ninety (90) days after the date of death with the remaining balance plus interest at prime plus one 11 and one-half (1 1/2%) percent, to be paid within one year from the date of death or upon mutually agreed upon terms of all Partners. 14. Valuation of the Interest of a Sellin~ or Deceased Partner. On exercise of any aforesaid options described in Paragraph 11 or 12 of this Agreement, the remaining Partners skall pay to the person legally entitled thereto the fair market value of such partnership interest together with the full unwithdrawn portion of such deceased, withdrawing or terminated Partner's distributive share of any net profits earned by the Partnership between the date of such accounting and the date of dissolution of the Partnership. Fair Market Value for purposes of determining the valuation of property shall be that value agreed upon among the Partners, of if they are unable to agree upon a value, by a fair market value determined by two independent attorneys or C.P.A.s in the area and taking the average of their two valuations, with one appraiser being selected by the remaining Partners and the other appraiser being selected by the outgoing Partner or personal representative of the deceased Partner. 15. Votinq. Partner shall be unanimous consent Except as otherwise provided herein, each entitled to one vote in all matters requiring or other Partnership decision provided that the death, insolvency, bankruptcy or placing into receivership of any Partner shall terminate his voting rights, managerial rights and 12 any and all other decision-making rights hereunder; in such event, the remaining Partners shall have full power and authority to vote, manage and decide as to all Partnership matters. 16. Insurance. The Partnership shall procure adequate liability and fire insurance; the type, amount and company or companies may be determined by the Partners. 17. Assignment. Except as provided herein, neither this Agreement, nor any interest of any of the parties herein (including any interest in monies belonging to,or which may accrue to the Partnership as a result of rentals or sales of property) may be assigned, pledged, transferred or hypothecated, without the prior written consent of the other Partners. The right of any person, firm or corporation claiming by, through or under any party hereto (including, but not limiting the same to judgment or other creditors, receivers, trustees, assignees, garnishees, executors, administrators, etc.) to assert any claim against the right, title or interest of any Partner shall be limited solely to the right to claim or receive after the distribution of cash receipts to the respective parties has baen completed and then only subject to the equities of the other parties as in this Agreement set forth. 18. Gender. When the context so requires, the masculine gender may be substituted for the feminine, the feminine for the 13 masculine, and the neuter for either, and vice versa. The singular shall be substituted for the plural, and vice versa. 19. Interpretation. This Agreement shall be interpreted in accordance with the laws of the Commonwealth of Pennsylvania. Paragraph headings are for convenience only. This Agreement shall be binding upon the parties hereto, their heirs, representatives, successors and assigns. IN WITNESS WHEREOF, the parties hereto, INTENDING TO BE LEGALLY BOUND, have executed this Agreement the day and year first above written. WITNESS: 14 DAVID $. THOMAS, KONALD I. HUNZIKF_.P., Dff~dan~ : IN THE COURT OF COMMON PLEAS : CC,'M~KLAND COUNTY, PENN~V~ : NO. 01-$09 Civil : CIVIL ACTION - LAW : IURY TRIAL DEMANDED NOTICE TO PLEAD David S. Thomas 26 West High Street Carli~le~ PA 1701~ YOU ARE RI~QUIR~D to plead to the within Answer Wifla New Matter witaSin twenty (20) days of service hereof ora default ju~/g~m~may be entered against you. CER.TII~ICATE O1~ SI~,RVICE I hereby certify that I am ~ day serving a copy of the foregoing documJ:nt upon the person and iii the malllxer illdicated below, which se~rice satisfie~ the requireall~lta of the Penmylvaafia Coc~ by depo$ifing a copy of same in the United States mail, at Harrisburg, Pennsylvan~ with fi.rst-clas$ postage, prepaid, as follows: $oseph L. Dlitchings, E~quire )-6 West Bigh Street Carlisle, PA 17013 Date:OW$~O1 DAVID $. I~ON~!.~ 1. InlI~2~l~ De~asm : IN THE COUKT OF CO~fl/ON P~-~ : ~ GOIR,r~, PENNSYLVANIA : NO. 01-~0~ Civil : CIVIL ACTION - LAW ANI) NOW com~ t~ l~ant Ron~ J. Hun~ who ze~pend~ m PhinfiiPs Ame~ .,rd t nm~ ofCtnt~ Pw.n Eyt writing 6. Admi'n~d. ~ day his ~ and Defe~--~ w~ solely se~i-g to the operation or,he business, ~t ~ ~d ~ c~~~. To~~a~~~ph 8 ~Pl~s ~ s~y d~ 9. ~i~ ~ ~. To ~a~ ~~9~P~s it ~t~s ~~a~~~~ ~ ~ Date: 07f30/01 £'d £EZ 'Obi Nt~4Z/USt E~12]1~(I'10~ bldg~: c2 VERIFICATION SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA DAVID S. THOMAS, Plaintiff V. RONALD J. HI/NZIKER, Defendant CUMBERLAND COUNTY, N0.01-509 Civil : CIVIL ACTION - I~W JURY TRIAL DEMANDED REPLY TO NEW MATTER IN THE COURT OF COMMON PLEAS PENNSYLVANIA 2001, comes the Plaintiff, David S. Thomas, by and through his undersigned attorneys, Saidis, Shuff, Flower & Lindsay, and replies to Defendant's New Matter as follows: 1. The averments of Paragraph 1 constitute conclusions of law to which no responsive pleading is required. 2. The averments of Paragraph 2 constitute conclusions of law to which no responsive pleading is required. 3. Denied. There was never any modification of the partnership agreement, nor was there any written document signed by the parties relating to the roles, rights and responsibilities of the partners after the Plaintiff's illness. 4. Denied. The funds received and illegally retained by the Defendant were not proper compensation. By way of further answer, while the Defendant was retaining partnership funds for himself, he was neglecting to pay creditors, nor was he providing information to the Plaintiff despite repeated requests for business records and accounting records. SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA 5. Denied. Plaintiff did not continue to receive regular payments throughout the period of his illness. The same is therefore denied and strict proof of the alleged '~regular payments" is demanded at the time of trial. 6. The averments of Paragraph 6 constitute conclusions of law to which no responsive pleading is required. To the extent that the averments may be deemed factual in nature, it is explicitly denied that the Plaintiff breached the parties partnership agreement, but rather it was the actions of the Defendant, including his illegal retention of the partnership assets and funds which caused the material breach of the partnership agreement. 7. Denied. Plaintiff has not converted for his own personal use any partnership assets, so the same is denied and strict pzoof thereof is demanded at the time of trial. WHEREFORE, Plaintiff, David S. Thomas, demands judgment in his favor and against the Defendant, Ronald J. Hunziker, as set forth in Plaintiff's Complaint. Respectfully submitted, ~SAI~IS, SHUFF, FLOWER .& ~INDSAY L. 'tch ~uprert~e C°urt IDr~t65551 "k 26 West High Street Carlisle, PA 17013 (717) 243-6222 Counsel for Plaintiff VERIFICATION I verify that the statements made in the foregoing Reply to New Matter are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. David S. Thomas CERTIFICATE OF SERVICE day of ~ hereby certify that I served a true and foregoing Reply to New Matter united States Mail, upon postage prepaid, correct copy of the all parties of record via addressed as follows: Ronald J. Hunziker 901 Hawthorne Avenue Mechanicsburg, PA 17055 SAIDIS, SHUFF, FLOWER & LINDSAY SAIDIS SHUFF, FLOWER & LINDSAY 26 w. High Street (~t b~ ~it~u and s~tted in d~i~lica~e) (Check one) ( ) (XX) CAFrfON OF ~ (entir~ caption must be DAVID S. TH~S for JURY trial at the r~ext tei~ of civil c~urt. fbr tria~ ~t~ut a j~. (~ o~) ( ) ~ f~ ~it~t~ ( ) VS. RON~D J. HUNZIK£R The trial list wi]] be c~lied on~ and Tria].~ c=m~ence on vs. Pr~trials wi] 1 be held on (Briefs are due $ days before pretriab. ) (The party listing this case for trial provide for~t~ith a copy of ~ pr~K:i~e to ail counsel, pursuant to local ~le 2!4.1,) N~. 2001 civil 509 z9 Indicate the attorney w~D will try case for the party w~o files this praecipe: JOSEPH L. HITCHINGS, ESQUIRE, 20~ WEST CARACAS AVENUE, SUITE 201, HERSHEY, PENNSYLVANIA 1705~ Indicate trial c~s~l fO~ ot~-r parties if known: RONJ~Lt~ HIJNT]I(FR, PRO--SE, 221 N. §2ND STREFT, HARR~S]~URG, P£NNSyLVAN~IJA 17111 Print Nar~m: Joseph L. At tor~ey for: DAVID S. THOMAS V. RONALD J. HUNZIKER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001-0509 CIVIL CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 23rd day of OCTOBER, 2002, a pretrial conference in the above-captioned matter is SCHEDULED for W~DN~MDA¥, NOV~4B~R 20, 2002, at 9:00 a.m. in Chambers of the undersigned judge, Cumberland County Courthouse, Carlisle, Pennsylvania. Pretrial memorandum shall be submitted by counsel in accordance with C.C.R.P. 212-4, to the pretrial conference. TRIAL in the matter will be conference. at least five (5) days prior scheduled at the pretrial Counsel are directed to have their calendars available. cc: Joseph L. Hitchings, Esq. Ronald Hunziker, Pro Se Taryn Dixon Court Administrator Edward E. Guido, {~S~ be ~itte~ and ~ukr~ed in d~licate) OCT z ~ TO THE p~ECA~Y OF CU~m~ COUNTY Ple~e li~.t~ fo~g case: ( Check one) ( ) CAPTI~ OF ~ for JURY trial at the next term f~ tr~ ~t~ut a j~ ( ~ one DAVID S. THOMAS /X ~ Civil Ac~i~ ( ) A~peal frc~Woitrati~n VS. RONALD J. HUNZIKER The trial list wJO_l be called on~ and Trial~ couRt.nee on Pretrials w~ ] ] be held on (Briefs ar~ dua 5 day~ before pretrials. ) (The party listing this case for trial provide fort~th a co~y of th~ Draec~e to ~_tl counsel, ~t to local Rule 214.1. ) 2001 Civil 509 19 Ind/ca~e the atrophy ~ will try case for the party w~o files this praecipe: JOSEPH L. HITCHINGS, ESQUIRE, 20~ WEST CARACAS AVENUE, SUITE 201, HERSHEY, PENNSYLVANIA 170~ Indicate trial c~s~l for other parties if known: RONAID HUNZIKER, PRO-SE, 221 N. ~2ND STREET, HARRISBURG, PENNSYLVARINA 17111 Th/s ca~e is r~a~y 'f~r print ~: s.e~ L. Hitchin~S Attorney for: DAVID S. THOMAS, : Plaintiff : V. : RONALD J. HUNZIKER : Defendant : IN THE COURT OF COMMON PLEAS OF CL~BERLAND COUNTY, PENNSYLVANIA PRETRIAL CONFERENCE At a pretrial conference held November 20, 2002, before Edward E. Guido, Judge, present for the Plaintiff was Joseph L. Hitchings, Esquire, and for Defendant was David M. Steckel, Esquire. This is a nonjury trial involving the breakup of a partnership. Counsel have estimated it will take a full day to try. We have scheduled trial in this matter for Friday, January 17, 2003, at 8:30 a.m. Counsel are directed to immediately confirm the availability of their witnesses. We will not entertain any request for a continuance, absent a dire emergency, made later than 10 days from today's date. The parties are directed to pre-mark all exhibits and exchange them with opposing counsel by Monday, December 30, 2002. Any objection to the exhibits, other than relevency, must be made in the form of a motion in limine. All motions in limine with supporting authority must be filed by Wednesday, January 8, 2003. Any responses must be filed by Wednesday, January 15, 2003. Defendant's attorney has just become involved in this case, and did not have an opportunity to file a pre-trial statement. He is directed to do so within 7 days of today's date. The parties have been discussing settlement. At this point, we would not give greater than 50/50 odds. 8~?-0509 CIVIL TERM By the Court, Edward E. Guido, J. Joseph L. Hitchings, Esquire For the Plaintiff David M. Steckel, Esquire For the Defendant it