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HomeMy WebLinkAbout10-4200~~ ~ ,~ ~ ~ ~-~ ,~~re ~l ~ ~ D ~ ~ P ~" ~ ~ ~+`H In the Court of Common Pleas of ~,y~ ~ Cumberland County, Pennsylvania ~" ~ ~ < < P~ ~~ L l_ J vs. No. ~0 L 018 ~ Ci~+i1-ice Cc(`~ 1 C c ~ Q~ ~~~CCCSl'~ To Prothonotary 19 Attorney for Plaintiff No. Term, 19 vs. PRAECIPE dii`v~/t`l~lS~`~N,~d Al.NfiC~~ n*.t..~~~_~~~~1'Vfl~ I I =~ ~d ~Z ~~i' OIOZ Filed 19 Atty. dt~~.t.~~ti-~ ~ ~,~~ ~. ~~1 ~~'-s~~-0~"Ii SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff ~4r~5titp of tCtt~hbr~.f~h~ G - ~, QFFIGE C~' r.. r. c~c{~IFF This t :.~ .,~ Jody S Smith Chief Deputy Richard W Stewart Solicitor 2DIO Jai.. -3 ~'~i 8~ Ott f ~I~'~~)~StL.4'ti.F VEN David A. Young (et al.) vs. Shared Services Consortium, LLC Case Number 2010-4200 SHERIFF'S RETURN OF SERVICE 06/24/2010 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: Shared Services Consortium, LLC, but was unable to locate them in his bailiwick. He therefore deputized the Sheriff of Dauphin County, PA to serve the within Notice and Complaint In Confession of Judgment according to law. 07/01/2010 Dauphin County Return: And now July 1, 2010 at 1320 hours I, Jack Lotwick, Sheriff of Dauphin County, Pennsylvania, do herby certify and return that I served a true copy of the within Complaint in Confession o• Judgement, upon the within named defendant, to wit: Shared Services Consortium LLC by making known unto Susan Berry, Vice President of Finance for Shared Services Consortium LLC at 30 North 3rd Street, 10th Floor, Suite 1020, Harrisburg, PA 17101 its contents and at the same time handing to her personally the said true and correct copy of the same. SHERIFF COST: $37.44 July 07, 2010 SO ANSWERS, RON R ANDERSON, SHERIFF (c) GountySuite Shenfl, Teleosott, Inc. Mary Jane Snyder Charles E. Sheaffer Real Estate Depu :.•.•:. ~~ Chief Deputy William T. Tully ' .tL~ • Michael W. Rinehart Solicitor Assistant Chief Deputy Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 780-6590 fax: (717) 255-2889 Jack Lotwick Sheriff Commonwealth of Pennsylvania DAVID & SALLY ANN YOUNG VS County of Dauphin SHARED SERVICES CONSORTIUM LLC Sheriff s Return No. 2010-T-2229 OTHER COUNTY NO. 104200 And now: JULY 1, 2010 at 1:20:00 PM served the within COMPLAINT IN CONFESSION OF JUDGEMENT upon SHARED SERVICES CONSORTIUM LLC by personally handing to SUSAN BERRY 1 true attested copy of the original COMPLAINT IN CONFESSION OF JUDGEMENT and making known to him/her the contents thereof at 30 NORTH 3RD STREET, 10TH FLOOR, SUITE 1020 HBG PA 17101 VICE PRESIDENT OF FINANCE Sworn and subscribed to So Answers, before me this 2ND day of July, 2010 ~'~,~~~ NOTARIAL SEAL ARY JANE SNYDER, Notary Publi Highspire, Dauphin County M Commission Ex Tres Set 1, 2010 Sheriff of Dauphin Co ty, Pa. ~1~~ Deputy Sheriff Deputy: KIMBERLY BARTO Sheriff s Costs: $41.25 6/28/2010 ~9U'L 2 ~ 2D e 0 DAVID A. YOUNG : IN THE COURT OF COMMON PLEAS And SALLY ANN YOUNG, : OF CUMBERLAND COUNTY, Plaintiffs :PENNSYLVANIA v. : NO. 10-4200 CIVIL CIVIL ACTION -LAW SHARED SERVICES CONSORTIUM, LLC Defendant . RULE TO SHOW CAUSE ~' .-~ AND NOW, this ~~ day of J ~ ~ 2010, the Plaintiffs in the above- captioned action are hereby ORDERED to show cause why the relief sought by Defendant in the Petition to Strike Off or Open Judgment should not be granted. The Plaintiffs are ORDERED to file an Answer to Defendant's Petition within ~_ days from the date of this Order. The Judgment entered by the Prothonotary on June 23, 2010 is hereby STAYED until further notice from this Court. BY T IS COURT: J. Distribution: David J. Lanza, Esquire, Attorney fox Plaintiffs 2132 Market Street, Camp Hill, PA 17011 Jason P. Kutulakis, Esquire, Attorney for Defendant Abom & Kutulakis, LLP, 2 West High Street, Carlisle, PA 17013 ~~ ~ ~ ~.S l~yl,~,t n ~ ~, , ,_- ~-.~ ~, ~~ c=- ~ I ~, , , , c_ _ -rs / 7 ~~ ~1 ~ i C»? , .y. C r.~ -~' T .K CJa ~ 17 David J. Lanza 1lD. No. 55782 2132 Market Street Camp Hill, Pennsylvania 17011 (717) 730-3775 DAVID A. YOUNG and SALLY ANN YOUNG Plaintiffs v. SHARED SERVICES CONSORTIUM, LLC, Defendant 1. 2. provisions. 3. 4. NO. 10-4200 CIVIL ACTION -LAW ['; rJ {_. ca .- vv~ PLAINTIFFS' ANSWER TO PETITION OF DEFENDANF~ r: ~ `'r .~ _- __ _ t~ ~ _. ~,~,,. Admitted. __:w `~. <^~ Denied. Plaintiffs provided numerous demands indicating that they woutd' enforce tl~ Lease w w v Denied. Defendant's status is beyond the knowledge of Plaintiffs. Denied. Defendant is not entitled to have the judgment stricken or opened for the following reasons: a. Admitted. b. Admitted in Part. Denied in Part. By way of further answer, the entire Lease and its renewals speak for themselves. c. Admitted in Part. Denied in Part. The terms of the Lease and its renewals speak for themselves. d. Denied. Defendant cannot avoid its obligations pursuant to its own renewals on the basis of its own failure to comply with the Lease deadlines. e. Denied. Defendant cannot avoid its obligations pursuant to its own renewals on the basis of its own failure to comply with the Lease deadlines. Plaintiff accepted the lease renewal notwithstanding the date on which Defendant's Vice-President provided such renewal. Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA f. Denied. This averment is irrelevant to the issues of this case. It does not matter that one officer of the Defendant may not have learned of the renewal until a later date. That is a purely internal matter for the Defendant. g. Denied. This averment is irrelevant to the issues of this case. Defendant's Vice- President had apparent authority to execute the renewal. Defendant cannot escape its rental responsibilities by virtue of an internal dispute among officers and their authority. h. Denied. This averment is irrelevant to the issues of this case. Defendant's Vice- President had apparent authority to execute the renewal. Defendant cannot escape its rental responsibilities by virtue of an internal dispute among its officers and their authority. i. Denied. This averment is irrelevant to the issues of this case. Defendant's Vice- President had apparent authority to execute the renewal. Defendant cannot escape its rental responsibilities by virtue of an internal dispute among its officers and their authority. j. Denied. This averment is irrelevant to the issues of this case. Defendant had no legal basis to shorten the Lease at that time. k. Denied. This averment is irrelevant to the issues of this case. Defendant had no legal basis to shorten the Lease at that time. I. Denied. Plaintiff did not agree to modify or shorten the term of the Lease. Plaintiff did "acknowledge" the Defendant's position. Plaintiff received this call on his cell phone while away from his office. Plaintiff informed Mr. Loftus that Plaintiff did not have the Lease in front of him and that the terms of the Lease, whatever such terms existed at that time, would control this situation. No modification of the Lease was created at that time. m. Denied. A month-to-month tenancy was not created pursuant to the terms of the Lease, especially in light of the renewal letter executed by the Defendant's Vice-President. The aforesaid clause of the Lease allows the creation of such amonth-to-month tenancy only at the option of the Landlord, not the Tenant. n. Denied. This averment is irrelevant to the issues of this case. Defendant cannot alter or shorten the Lease by virtue of a four minute telephone conversation, especially when such conversation did not result in an agreement of any kind, especially an agreement that would contradict the written Lease or the written renewal executed by Defendant's Vice-President. o. Denied. The Lease did not "expire." Defendant occupied the premises through March of 2010. p. Denied. The Lease did not "expire." Defendant could not reasonably understand its tenancy to have been shortened despite the written renewal executed by its own Vice- President. q. Denied. There was no month-to-month tenancy. Defendant continued to pay rent only through February 2010. r. Admitted in Part. Denied in Part. The letter speaks for itself. To the extent that the letter contains the implication that such arrangements had been discussed or agreed to, such implication is denied. Defendant remained bound by the Lease and its renewals. s. Denied. There was no month-to-month tenancy. Any "notice" was of no effect. t. Denied. This averment misstates the contents of the letter. Exhibit "C" to Defendant's Petition makes it clear that Plaintiff intended to enforce the renewal set forth in prior correspondence from Defendant's Vice-President. u. Denied. Plaintiff did not acknowledge any arrangement inconsistent with Defendant's renewal of its Lease. Nowhere in this (or any) averment does Defendant provide any consideration to Plaintiff for Plaintiff to allow Defendant to revoke its Lease renewal. v. Admitted in Part. Denied in Part. It is admitted that Plaintiff received the letter. The contents of the letter are denied. Plaintiff never acknowledged that Defendant's Vice- President had no authority to bind Defendant to a contract or a Lease renewal. Plaintiff has no way of determining which officer in Defendant's entity is the proper officer for Lease renewals. Plaintiff accepted the signed renewal from Defendant's Vice-President. w. Denied. The letter speaks for itself. The request to "honor the previous discussions" is intentionally vague. Plaintiff never committed or agreed to release Defendant from its Lease obligations. Plaintiff made no commitment or agreement for Plaintiff to "honor." Defendant should honor its own agreement to renew the Lease. x. Admitted in Part. Denied in Part. The letter speaks for itself. Among other items, Plaintiff's counsel once again reminded Defendant of the authority of Defendant's own Vice-President and suggested that Defendant seek legal counsel on this point. y. Admitted in Part. Denied in Part. The letter speaks for itself. z. Denied. Defendant vacated the building at or near the end of March 2010. Defendant was not released from its tenancy at that time. aa. Denied. This averment constitutes a conclusion of law. A binding Lease does exist by virtue of Defendant's correspondence through its Vice-President. 5. Denied. Defendant is liable for the rent through the remainder of the Lease term. a. Denied. Plaintiff retained the option to accept and did accept this renewal. Defendant cannot escape its Lease obligations by virtue of the lateness of its own notice. Defendant waived any claim to have voided the Lease in this fashion when it actually purported to renew the Lease. b. Denied. As aVice-President, Ms. Berry retained apparent authority to bind the Tenant to the renewal. Defendant, in these proceedings, has scrupulously avoided any reference to Ms. Berry's status as aVice-President. c. Denied. The Defendant had no power to rescind its own notice of renewal. The Lease provides for no unilateral power of rescission. Defendant provided no consideration for any such rescission. d. Denied. Defendant occupied the premises on the basis of its own renewal -not on the basis of any month-to-month tenancy that Defendant had no power to create. e. Denied. There was no month-to-month tenancy. Defendant had no power to terminate the Lease prior to its expiration. f. Denied. This averment constitutes a conclusion of law. Defendant had no power to terminate the Lease unilaterally. 6. Denied. Defendant has set forth no defect in the record that would entitle Defendant to the relief requested. 7. Denied. Defendant has not created a factual issue that would justify opening the judgment, as Defendant has not alleged consideration for any modification of the Lease, nor has Defendant alleged any authority or justification for Defendant to unilaterally modify the Lease in the fashion suggested by Defendant. 8. Denied. There has been no delay in bringing this action. There is no requirement that the Plaintiff mitigate damages in this case. Appellate authority in Pennsylvania specifically holds that no mitigation is required in commercial lease situations. 9. Denied. There has been no allegation of facts sufficient to set forth accord and satisfaction. Defendant has failed to allege any consideration for such a finding of accord and satisfaction. Accord and satisfaction cannot be unilateral. 10. Denied. Defendant has failed to plead facts necessary for the defense of "consent," or any consideration therefore. 11. Denied. Defendant has failed to plead facts in support of estoppel. It is Defendant that is estopped from denying the contents of the renewal executed by its own Vice-President. 12. Denied. Performance is not impossible, unless Defendant is insolvent. Such insolvency would not be a defense to enforcement of the Lease. 13. Denied. There is no justification for the breach of contract set forth in the Complaint, and Defendant has set forth no such justification. Plaintiff has failed to plead consideration for any new contract or contract modification. WHEREFORE, Plaintiffs demand that Defendant's Petition be dismissed. Respectfully submitted, By: ~- avid J. Lanza Attorney I.D. No. 55782 2132 Market Street Camp Hill, PA 17011 Telephone (717) 730-3775 Attorney for Plaintiffs 131-8 VERIFICATION I, David Young, verify that the statements made in this Answer are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are made subject to the penalties of 18 Pa. C.S.A §4904, relating to unsworn falsification to authorities. (a~( ~ Date: gy: CERTIFICATE OF SERVICE AND NOW, this 9~' day of August, 2010, the undersigned does hereby certify that he did this date serve a copy of the foregoing document upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: Jason Kutulakis, Esquire 2 West High Street Carlisle, PA 17013 ;~ ," ~ David Lanza ~.~~'Q~~~~~ ~'~ ~~~ Q~~7~~f°aQ 1~1~~ OM ~' LtLAKIS Jason P. Kutulakis, Esquire Attorney I.D. No: 80411 2 West High Street Carlisle, Pennsylvania 17013 (717) 249-0900 DAVID A. YOUNG And SALLY ANN YOUNG, Plaintiffs 2010 OCT 14 P~! 4 ~ Q 3 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 10-4200 CIVIL CIVIL ACTION -LAW SHARED SERVICES CONSORTIUM, LLC Defendant AND NOW, comes the Defendant, Shared Services Consortium, LLC, by and through its attorney, Jason P. Kutulakis, Esquire, of Abom & Kutulakis, L.L.P., and hereby files the within Motion to Compel Discovery against Plaintiffs David A. and Sally Young, and hereinafter avers as follows: 1. On June 23, 2010, Plaintiffs filed a Complaint for Confession of Judgment against Defendant. 2. On July 19, 2010, Plaintiffs responded with a Petition to Strike Off or Open Judgment. 3. On July 20, 2010, The Honorable Albert H. Masland issued a Rule to Show Cause, which stayed the Judgment until further notice. 4. On August 25, 2010, undersigned counsel served David Lanza, Esquire, counsel for Plaintiffs, with Requests for Production of Documents and Requests for Admission. 5. On September 23, 2010, undersigned counsel received Plaintiffs' timely Answer to Requests for Admission. 6. Plaintiffs did not serve undersigned counsel with a timely response to Requests for Production. 7. On September 27, 2010, undersigned counsel contacted Attorney Lanza by phone to inquire as to the whereabouts of Plaintiffs' response to Requests for Production, and Attorney Lanza informed that the response would be forthcoming. 8. On October 12, 2010, undersigned counsel's associate contacted-Attorney Lanza and he informed that the response had not been prepared, and he would not provide a timeline for service of the response. 9. Undersigned counsel has not received Plaintiffs' response to Requests for Production. 10. Undersigned counsel is unsure when, or if, Plaintiffs will respond to the Requests for Production. 11. Attorney Lanza does not concur in the filing of the within Motion to Compel Discovery. WHEREFORE, Defendant Shared Services Consortium, LLC, respectfully requests This Honorable Court compel Plaintiffs' response to Requests for Production, and assess appropriate award of sanctions and attorney's fees related to the within filing against Plaintiffs. DATE: OCTOBER l ~ , 2010 Respectfully submitted, ABOM & KUTUI.AKIS, l T"p Jason Kutulalris, Esquire Atto y ID # 80411 2 West High Street Carlisle, PA 17013 (717) 249-0900 Attorney for Defendant that an CERTIFICATE OF SERVICE AND NOW, this-1! day of October, 2010, I, Shannon Freeman, of Abom & Kutulakis, LLP, hereby certify that I did serve a true and correct copy of the foregoing Motion to Compel by depositing, or causing to be deposited, same in the United States Mail, first-class mail, postage prepaid addressed to the following: David J. Lanza, Esquire 2132 Market Street Camp Hill, PA 17011 Counsel for plaints annon Free David Lanza I.D. No. 55782 2132 Market Street Attorney for Plaintiffs Camp Hill, Pennsylvania 17011 (717) 730-3775 DAVID A. YOUNG and SALLY ANN YOUNG IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs NO. 10-4200 v. CIVIL ACTION -LAW SHARED SERVICES CONSORTIUM, LLC, Defendant `~ ~ ~ c~~ `a~ _ rte, ~ Answer to Motion to Compe/ ~ ~ ~' ~, -~. ~' -~ ~ ~ ~-- 1 ru ~ -- Admitted -' = ° '''' :~ `' . 2. . .. . Admitted. ~' ~~ :~ ~~' c~ __tc~ ~ ='~ -- 3. Admitted. °::~ ~ ~~ 4. Admitted in Part. Denied in Part. By way of denial, both docur~f~nts:~contained objectionable material, particularly the request for document production, which requested irrelevant matter not reasonably calculated to lead to the discovery of admissible evidence. 5. Admitted. 6. Admitted in Part. Denied in Part. As of this filing, Plaintiff has served documents and objections upon Defendant. 7. Admitted It is admitted that the aforesaid conversation took place. 8. Admitted in Part. Denied in Part. It is admitted that a conversation took place. It is denied that counsel stated no response had been prepared, as a response was under preparation at that time. By way of further denial, counsel stated that a response would be forthcoming prior to any resolution that might involve court intervention. 9. Denied. A response has now been served. 10. Denied. A response has now been served. 11. Admitted. Wherefore, Plaintiff requests that Defendant's Motion be dismissed, with costs and attorney fees awarded to Plaintiff. ~? By: David J. Lanza Attorney I.D. No. 55782 2132 Market Street Camp Hill, PA 17011 Telephone (717) 730-3775 Attorney for Plaintiffs CERTIFICATE OF SERVICE AND NOW, this 22nd day of October 2010, the undersigned does hereby certify that he did this date serve a copy of the foregoing Complaint upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: Jason Kutulakis, Esquire 2 West High Street Carlisle, PA 1?013 By: Dav d J. Lanza 5 DAVID A. YOUNG And SALLY ANN YOUNG, Plaintiffs v. IN THE COURT OF COMMON PL'~A51 5 ZO1U OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-4200 CIVIL CIVIL ACTION -LAW SHARED SERVICES CONSORTIUM, LLC Defendant AND NOW, this .~ day of VG ~ ~'~~ , 2010, it is hereby ORDERED that Plaintiffs serve a response to Defendant's Request for Production of Documents upon Defendant within ~~days from the date of this Order, I at atnti s f~ ! ~ lae r ..:-.~u ~.~ s~o ~ 6{ y.~K ~~~t. p ' BY TH COURT: J• Distribution: David J. Lanza, Esquire, Attorney for Plaintiffs 2132 Market Street, Camp Hill, PA 17011 Jason P. Kutulakis, Esquire, Attorney for Defendant Abom & Kutulakis, LLP, 2 West High Street, Carlisle, PA 17013 ~ o 0 -n ~~~ eS' -~ ~~ ~, o --i -^ rn, t r~ ~ - ~o ~1 ~~ ~ ~ ~ ~~ --+ ~ ~ -a rn ~® ~ ~~ _ ~ ~~ o~ ~ ~a ~~ .. ~_ ~~ ~~ ~ ~~ o~ ~ DAVID A. and SALLY ANN YOUNG, Plaintiffs V. SHARED SERVICES CONSORTIUM, LLC, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW Defendant 10-4200 CIVIL TERM IN RE: CIVIL TRIAL LIST ORDER OF COURT AND NOW, this 17th day of January, 2012, upon consideration of the call of the civil call list and no person having called the above-captioned case for trial, it is stricken from the trial list. By the Court, Christyle Peck, J. ? David J. Lanza, Esquire 2132 Market Street Camp Hill, PA 17011 For the Plaintiffs Jason P. Kutulakis, Esquire 2 West High Street Carlisle, PA 17013 For the Defendant pcb Maled Owes 19 11'8100 C"1 N C'' W x r =C::. p1+ . .c_ t; . xn