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HomeMy WebLinkAbout10-6011TERRY L. MYERS, an Individual and Joint Shareholder of 16 N PITT ENTERPRISES, INC., Plaintiff V. JOHN M. BIROSIK, IV, an Individual and Joint Shareholder, 6840 Veterans Way Newport, PA 17074 Defendant : THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 2010 - 61011 CIVIL TERM CIVIL ACTION - LAW PRAECIPE FOR ISSUANCE OF A WRIT OF SUMMONS TO THE PROTHONOTARY: Please issue a Writ of Summons against the Defendant, JOHN M. BIROSIK, IV, and enter my appearance on behalf of the Plaintiff, TERRY L. MYERS, an Individual and Joint Shareholder of 16 N PITT ENTERPRISES, INC. JOHN M. BIROSIK, IV 6840 Veterans Way Newport, PA 17074 2010 C-) _N f"1 Respectfully submitted, -?3 --i rnw -*i IRWIN & McKNIGHT, P.C. cZ? --d ?r- rte- 0 - -4 CD AJ By: n -0 a X-n Dou as G. iller, Esquire om 60 West Pomfret Street Z Carlisle, PA 17013 < (717) 249-2353 To: JOHN M. BIROSIK, IV You are hereby notified that Terry L. Myers, an Individual and Joint Shareholder of 16 N PITT ENTERPRISES, INC., Plaintiff, has commenced an action against you which you are required to defend or a default judgment may be entered against you. HONOTARY By: Date: • /7 , 2010 DEPUTY s 2 yL/7 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor ~awr~cS ct ~u+r+Gr~f~f1a~ ~; _; ~ ~ ;;x: r, 6 s~~~~s c~ ~r=~ s~~i~~ ~~i~o ~~~ -~~ ~i"e ~~ J~ Terry L. Myers Case Number vs. John M. Birosik, IV 2010-6011 SHERIFF'S RETURN OF SERVICE 09/20/2010 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: John M. Birosik IV, but was unable to locate him in his bailiwick. He therefore deputized the Sheriff of Perry County, PA to serve the within Writ of Summons according to law. 09/30/2010 11:30 AM -Perry County Return: And now September 30, 2010 at 1130 hours I, Carl E. Nace, Sheriff of Perry County, Pennsylvania, do herby certify and return that I served a true copy of the within Writ of Summons, upon the within named defendant, to wit: John M. Birosik IV by making known unto himself personally, at The Perry County Sheriffs Office, P.O. BOX 6, Courthouse, New Bloomfield, PA 17068 its contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $53.44 October 01, 2010 SO ANSWERS, RON R ANDERSON, SHERIFF tc; CouniySuite Sh@Aff, Teleosoft, bic. Terry L. Myers IN THE COURT OF COMMON PLEAS OF j THE 41st JUDICIAL DISTRICT OF PENNSYLVANIA, PERRY COUNTY BRANCH Versus ~> John M. Birosik, IV No. 2010-6011 Cumberland Co. SHERIFF'S RETURN And now September 30 , 2010: Served the within name John M. Birosik, IV the defendant(s) named herin, personally at his place of residence in Sheriffs Office-New Bloomfield Boro Perry County, PA, onSeptember 30, 2010 at by handing to John M. Birosik, IV, Defendant copy(ies) of the within Writ of Summons and made known to him the contents thereof 11:30 o'clock AM 1 true and attested fli Sworn and subscribed to before me this~0 day of ~~v ~~ ifnD ~'`Y./~n,~ R -.~~ , _ So answers Deputy S eriff of Perry County NQTARI$L SEAL ,J- : ~~~ ~ ~RA1~iCH, NOTARY PUBLIC ' _ I~EW QLi~ON(EIELE}BORO., PERRY COUNjY AXY tbMMlSSION EXPIRES MARCH B, 2014 l F:\FILESTlients\12725 Birosik A12725.I.pra Revised: 10/8/10 8:35AM FILED-OFFICE 8E pp'07"NOTAR OF T George B. Faller, Jr., Esquire. la MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLPAQ Or"' t PM MARTSON LAW OFFICES CUMBER, AND?COUN I.D. 49813 oFp?lSl'L'?' 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant TERRY L. MYERS, an Individual and Joint Shareholder of 16 N PITT ENTERPRISES, INC., Plaintiff V. JOHN M. BIROSIK, IV, an Individual and Joint Shareholder, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2010-6011 CIVIL ACTION - LAW PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Enter the appearance of MARTSON DEARDORFF WILLIAMS OTTO & GILROY on behalf of Defendant in the above matter. MARTSON W OFFICES By a __ George B. Faller, Jr., Esquire I.D. No. 49813 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant Dated: 161111 D CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Douglas G. Miller, Esquire IRWIN & McKNIGHT 60 West Pomfret Street Carlisle, PA 17013 MARTSON LAW OFFICES CB4yQ&Denroad en East High Street Carlisle, PA 17013 (717) 243-3341 Dated: October J_?_, 2010 F. TILES\Clients\12725 Birosik 7112725.1.ansl.wpd George B. Faller, Jr., Esquire I.D. 49813 Seth T. Mosebey, Esquire I.D. No.203046 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant ?j . TERRY L. MYERS, an individual and : IN THE COURT OF COMMON PLEAS OF Joint Shareholder of 16 N PITT : CUMBERLAND COUNTY, PENNSYLVANIA ENTERPRISES, INC., Plaintiff V. NO. 2010-6011 CIVIL TERM JOHN M. BIROSIK, IV, an individual : CIVIL ACTION - LAW and Joint Shareholder of 16 N PITT ENTERPRISES, INC., : Defendant ANSWER WITH NEW MATTER TO: TERRY L. MYERS and DOUGLAS G. MILLER, ESQUIRE, his attorney YOU ARE HEREBYNOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. 1. Admitted. 2. Admitted. 3. Admitted, with clarification. Plaintiff and Defendant are both directors of the Corporation. 4. Admitted in part and denied in part. It is admitted that the street address is correct, but Defendant's address should refer to Ickesburg, rather than Newport. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted, with clarification. Both Plaintiff and Defendant contributed equally to the formation and operation of the Corporation and its restaurant business. 10. Admitted. 11. Admitted. 12. Admitted in part and denied in part. It is admitted that the parties executed a Stockholders' Agreement on or about March 9, 2004. With regard to the subject matter or terms of the Stockholders' Agreement, the document speaks for itself and any characterization thereof is denied as a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 13. Admitted. 14. Denied as stated. Defendant desired to wind up the business. In the alternative, if Plaintiff sought to operate the business as an ongoing operation, Defendant sought to reach an agreement with Plaintiff for a transition and transfer of his ownership interest. An agreement between the parties was never reached. 15. Denied. The correspondence dated August 14, 2007, and attached as Exhibit "C" is a document which speaks for itself. Any characterization of the correspondence is denied as a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 16. Denied as stated. Defendant has remained an officer and director of the Corporation throughout the Corporation's existence. 17. Denied as stated. Defendant has remained an officer and director of the Corporation throughout the Corporation's existence. Defendant previously expressed a desire to transfer his ownership interest in the Corporation to Plaintiff, but the parties were unable to reach an agreement. 18. Denied. Defendant has remained an officer and director of the Corporation throughout its existence. 19. Admitted. 20. Denied. The Settlement Escrow Agreement is a document which speaks for itself. Any characterization of the Settlement Escrow Agreement is denied as a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 21. Denied as stated. The parties cooperated in obtaining the necessary paperwork for dissolution. COUNT I - CORPORATE DISSOLUTION 22. The answers set forth in Paragraphs 1 through 21 are hereby incorporated by reference as though fully set forth. 23. Denied. The parties have been unable to reach an agreement to equitably distribute the remaining corporate funds. Any allegation that such failure is due to Defendant's actions or conduct is denied as a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 24. Denied. The Mutual Release/Cooperation Agreement is a document which speaks for itself. Any characterization of the Mutual Release/Cooperation Agreement is denied as a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 25. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of this averment. 26. Denied as stated. The only outstanding corporate decision to be made by the parties is the division of the corporate funds currently held in escrow. 27. Denied. The parties are able to communicate with each other but do not desire to do so. The remainder of this paragraph is denied as a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 28. Denied as a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 29. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to Plaintiff's beliefs. In the alternative, this averment set forth in this paragraph is denied as a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 30. Denied as a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. WHEREFORE, Defendant John M. Birosik IV respectfully requests that this Court enter an order dissolving 16 N Pitt Enterprises, Inc., and direct an equal distribution of the corporate funds currently held in escrow. COUNT II - BREACH OF FIDUCIARY DUTY 31. The answers set forth in Paragraphs 1 through 30 are hereby incorporated by reference as though fully set forth. 32. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the nature of the damages sought by Plaintiff or Plaintiff's reasons or motivations for seeking such damages. Any inference that Plaintiff is entitled to such damages is denied as a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 33. Denied as a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 34. Denied as a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 35. Denied as a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 36. Denied as a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. WHEREFORE, Defendant John M. Birosik IV respectfully requests that this Court enter an order dissolving 16 N Pitt Enterprises, Inc., and direct an equal distribution of the corporate funds currently held in escrow. NEW MATTER 37. Paragraphs 1 through 36 of Defendant's Answer are hereby incorporated by reference as though fully set forth. 38. On or about August 14, 2007, counsel for Defendant sent correspondence to Plaintiff. A copy of this correspondence is attached as Exhibit "C" to Plaintiff's Complaint and is incorporated herein by reference. 39. The correspondence dated August 14, 2007, notified Plaintiff that Defendant desired to either dissolve the Corporation or transfer his interest in the Corporation to Plaintiff. 40. Plaintiff did not express any desire to purchase Defendant's shares in the Corporation. 41. Plaintiff did not notify Defendant that he desired to proceed with a purchase of Defendant's shares in the Corporation pursuant to the Stockholders' Agreement, a copy of which is attached to Plaintiff's Complaint as Exhibit "A." 42. The value of the stock has never been determined by the shareholders and Corporation pursuant to the provisions of Paragraph 4(A) of the Stockholders' Agreement. 43. The Corporation's accountant has never determined the value of the stock of the Corporation. 44. Rather than electing to purchase Defendant's shares, Plaintiff elected to continue the Corporation's business with Defendant as an equal shareholder and director. 45. Consequently, Defendant is entitled to an equal share of the corporate funds held in escrow. 46. Plaintiff took corporate action as both a director and shareholder without providing notice to Defendant. 47. Plaintiff took corporate action as both a director and shareholder without the participation of Defendant. WHEREFORE, Defendant John M. Birosik IV respectfully requests that this Court enter an order dissolving 16 N Pitt Enterprises, Inc., and direct an equal distribution of the corporate funds currently held in escrow. MARTSON LAW OFFICES By: o J George B. Faller, Jr., Eire I.D. No. 49813 Seth T. Mosebey, Esquire I.D. No. 203046 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant Date: tS/15//2 + IC ON The foregoins Answer with New Matter is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of the document is that of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extant that the content of the document is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unworn falsification to authorities, which provides that if I make knowingly false averments, I may be subject to criminal penalties. M. Birosik, IV Dated: Fi 17 f ar+lp[ J11773S,+.wi-Cr- WO CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Answer with New Matter was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Douglas G. Miller, Esquire IRWIN & McKNIGHT 60 West Pomfret Street Carlisle, PA 17013 MARTSON LAW OFFICES By Mat rice Ten East High Street Carlisle, PA 17013 (717) 243-3341 _f Dated: TERRY L. MYERS, an Individual and : THE COURT OF COMMON PLEAS OF Joint Shareholder of 16 N PITT : CUMBERLAND COUNTY,PENNSYLVAN-J ENTERPRISES,INC., c Plaintiff M V. NO. 2010 -6011 CIVIL TER ; JOHN M. BIROSIK, IV, an Individual : CIVIL ACTION—LAW - � CD And Joint Shareholder of 16 N PITT 2: r ENTERPRISES,INC., Defendant. PRAECIPE TO WITHDRAW APPEARANCE To the Prothonotary: Please withdraw the appearance of the law firm of Irwin & McKnight, P.C. on behalf of the Plaintiff, Terry L. Myers, in the above captioned case. Respectfully Submitted, IRWIN & McKNIGHT, P.C. Dated: July 25, 2013 Douglas G.Miller, Esquire Supreme Court I.D. No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717)249-2353 PRAECIPE TO ENTER APPEARANCE To the Prothonotary: Please enter my appearance on behalf of the Plaintiff, Terry L. Myers, in the above captioned case. Respectfully Submitted, Date: ( -3 wV Gregory H Knig t, Esquire Supreme Court I.D. No. 2 Northfield Way Mechanicsburg, PA 17050 (717)249-5373 THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA Terry L. Myers, An Individual and Joint Shareholder of 16 N. Pitt Enterprise, Inc. Plaintiff Docket No. 2010-6011 Civil Term John Birosik, IV An individual And Joint Shareholder of 16 N. Pitt Enterprise, Inc. Defendant PRAECIPE TO WITHDRAW AND DISCONTINUE AND NOW, comes the Plaintiff, by and through his Counsel of Record, Gregory H. Knight, Esquire, and Knight and Knight & Associates, P. C., to file a Praecipe to Withdraw and Discontinue, with prejudice, the civil action docketed at 2010-6011. Date: 1 �Q W � � Gregory . Knight, Esquire Attorney I. D. No. 30622 2 Northfield Way Mechanicsburg, Pennsylvania 17050 717-249-5373 Attorney for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA Terry L. Myers, An Individual and Joint Are Shareholder of 16 N. Pitt Enterprise Docket No. 2010-6011 Plaintiff Civil Term V. John Birosik, IV, An Individual And Joint Shareholder of 16 N. Pitt Enterprise, Inc. Defendant CERTIFICATE OF SERVICE I certify that I have served by first class U. S. Mail a true and correct copy of the foregoing Praecipe to Withdraw and Discontinue upon the following person: George B. Faller, Jr. Esquire Martson Law Office 10 East High Street Carlisle, Pennsylvania 17013 Attorney for Defendant G egory Ef Knig t, Esquire Knight & Associates, P. C. Attorney I. D. No. 30622 2 Northfield Way Mechanicsburg, PA. 17050 717-249-5373 Attorney for Plaintiff