HomeMy WebLinkAbout02-0094GINA L. ISRAELOFF,
COLLEEN DORSEY,
Plaintiff
Defendant :
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
CWIL ACTION NO. ~- q~
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set
forth in the following pages, you must take action within twenty (20) days after this Complaint
and Notice are served, by entering a written appearance personally or by attorney and filing in
writing with the Court your defenses or objections to the claims set forth against you. You are
wamed 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.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA
717-249-3166
AVISO
Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas
expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de
la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por
abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en
contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede
entrar una orden contra usted sin previo aviso notificacion y por cualquier queja o alivio que es
pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos
importantes para usted.
LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENE
ABOGADO O SI NO TIENE EL DINERO SOFICIENTE DE PAGAR TAL SERVICIO,
VAYA EN PERSONA O LLAME POR TELEFONO A LA OFIC1NA CUYA DIRECCION SE
ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR
ASISTENCIA LEGAL.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA
717-249-3166
McNEES WALLACE & NURICK LLC
Kim'berly~I. Colonna
I.D. No. 80362
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108
(717) 232-8000
Attorneys for Plaintiff
GINA L. ISRAELOFF,
COLLEEN DORSEY,
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff :
: CIVIL ACTION NO.
:
:
Defendant :
Plaintiff Gina L. Israeloff, by and
avers as follows:
COMPLAINT
through her attorneys McNees Wallace & Nurick LLC,
1. Plaintiff Gina L. Israeloff Clsraeloff') is an adult individual residing at 4807
Martinique Way, Naples, Florida.
2. Defendant Colleen Dorsey ("Defendant") is an adult individual with a place of
business at 250 S. 15th Street, Lemoyne, Cumberland County, Pennsylvania.
3. On or about June 30, 2000, Israeloff and Defendant executed a written Business
Sale and Purchase Agreement (the "Agreement"). A true and correct copy of the Agreement is
attached hereto as Exhibit A.
4. The Agreement related to the sale and purchase of a business known as A Special
Touch (the "Business") and located at 3806 Market Street, Camp Hill, Cumberland County,
Pennsylvania and the transfer of the stock of a Pennsylvania Corporation known as Face to Face
Permanent Cosmetics, Inc. (the "Corporation"). See Ex. A.
5. Pursuant to the Agreement, Israeloff sold the Business to Defendant for Ten
Thousand Dollars ($10,000.00) plus the cost of all equipment and inventory which was
transferred to Defendant at the closing of the transaction. Id. at ¶2A.
6. Israeloff and Defendant executed a written list of all inventory and equipment
transferred and agreed upon a total cost $62,958.94. TrUe and correct copies of the inventory
and equipment list and documentation of the cost calculations are attached hereto as Exhibit B.
7. The total purchase price to be paid by Defendant to Israeloff was $72,958.94.
8. After purchasing the Business, Defendant moved it from the Camp Hill location
to its present location at 250 S. 15th Street, Lemoyne, Cumberland County, Pennsylvania.
9. The Agreement provides that the Defendant is to make monthly payments to
Israeloff from the income of the Business and from the proceeds of the Corporation until the
purchase price is paid in full. Ex. A, ~I¶ 2,5.
10. The calculation of the monthly payments from the Business is described in the
Agreement as follows:
From and after the Closing Date until such time as the Seller
[Israeloff] has been paid in full under the Agreement, Purchaser
[Defendant] shall receive sixty-two (62%) per cent for the services
she provides for her clients and fifteen (15%) percent of the net
sales proceeds for any products which she sells through the
business.
After the customary and reasonable monthly bills of the Business
have been paid, the remaining monthly balance of business income
shall be paid as follows:
i. Seventy-five (75%) percent to Seller [Israeloff] as
payment toward the Ten Thousand and No/100 ($10,000.00)
Dollars sales price and cost of inventory and equipment transferred
to Purchaser [Defendant] as of the Closing Date, which payments
shall continue on a monthly basis until payment in full has been
received by Seller [Israeloff] for the sales price and cost of such
inventory and equipment ....
ii. Twenty-five (25%) percent to Purchaser [Defendant] ....
Ex. A, ¶ 2C, 2D.
11. The Agreement provides that notwithstanding anything to the contrary, the full
purchase price must be paid on or before May 2003. Id. at ~[2D(ii).
12. The Agreement also provides that, in exchange for the transfer of the
Corporation's stock, a portion of the Corporation's monthly proceeds were to be paid to Israeloff
and applied to reduce the amount of the purchase price owed by Defendant.
13. The calculation of the monthly payments from the Corporation's proceeds is
described in the Agreement as follows:
Any monthly net proceeds received by Purchaser [Defendant]
through [the Corporation] shall be paid 62% to Purchaser
[Defendant] and 38% to Seller [Israeloff] and applied to reduce the
balance due to Seller [Israeloff] under this Agreement, and
continue on a monthly basis until Seller [Israeloff] has been paid in
full under this agreement.
Ex. A, ~[ 5.
14. Defendant made payments for the months of October 2000, November 2000,
December 2000, January 2001, February 2001, March 2001, April 2001, May 2001, June 2001,
July 2001, and August 2001.
15. Upon information and belief, the monthly amounts that have been paid by
Defendant do not represent the full amounts due under the provisions of the Agreement.
16. The total amount of payments received from Defendant is $20,896.48, and the
amount remaining due to Israeloff is $52,062.20.
17. Defendant failed to make payments for the months of September 2001, October
2001, November 2001, and December 2001.
18.
reference.
19.
Count I: Breach of Contract
Paragraphs one (1) through seventeen (17) above are incorporated herein by
The Agreement constitutes a valid and binding contract to which Israeloff and
24.
reference.
25.
Defendant are parties.
20. Israeloff fully performed her contractual obligations by providing to Defendant
the Business, its inventory and equipment, and all of the stock of the Corporation.
21. Defendant has breached the contract by failing to make payments on a monthly
basis as required by the Agreement.
22. Upon information and belief, Defendant has breached the contract by making
monthly payments that do not represent the full monthly payment amounts due under the
provisions of the Agreement.
23. Israeloffhas incurred damages as a direct result of Defendant's breach of the
contract in that she has not received the monthly payments to which she is entitled under the
Agreement.
WHEREFORE, Israeloff demands compensatory damages, plus interest, costs, and such
other and further relief as deemed just and proper by the Court.
Count II: Fraudulent Misrepresentation
Paragraphs one (1) through twenty-three (23) above are incorporated herein by
Defendant provided false and misleading information to Israeloffregarding the
cash flows of the Business and Corporation, including but not limited to the following:
a. misstating the amounts of income received for services provided at the Business;
b. misstating the amounts of income received for products sold at the Business;
c. misstating the costs of the supplies purchased for use in the Business;
d. misstating the amounts of outflows for rent and taxes;
e. misstating the amount of girl certificates redeemed at the Business; and
f. misstating the amounts of other inflows and outflows for the Business;
26. Upon information and belief, Defendant provided false information with the
intent to mislead Israeloff as to the proper amounts of the monthly payments.
27. Israeloffjustifiably relied on the information provided by Defendant.
28. Israeloffhas incurred damages as a direct result of the fraudulent
misrepresentations made by Defendant in that she has not been able to determine the correct
amount of the monthly payments which Defendant is obligated to make and has not received the
full amount of those monthly payments.
WHEREFORE, Israeloff demands compensatory damages, punitive damages, interest,
costs, and such other and further relief as deemed just and proper by the Court.
McNEES WALLACE & NURICK LLC
Kimbe~ly Mt. Colonna
I.D. No. 80362
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108
(717) 232-8000
Attorneys for Plaintiff
01/03/2002 15:39 FAX 7172375300 McNees Wallace & Nurlck ~009/009
VERIIrICA1~ION
Subject to the penalties of 18 Pa. C.S.A. § 4904, relating to unsworn falsification to
authorities, I hereby certify that I have reviewed the foregoing and that the facts set forth thcrei~
are true and correct to the best of my knowledge, information and belief.
Datc:
Exhibit A
bus/a~m/tou=h.sal/6-O0
BUSINESS SALE AND PURCHASE AGREEMENT
THIS AGREEMENT, made as of the ~' day of~-~k/~ , 2000, by
and between GINA L. ISRAELOFF, of 1465 Maplewood Drive, New
Cumberland, Pennsylvania (hereinafter the "Seller") and COLLEEN
DORSEY, of 125 Dorsey Lane, Dillsburg, Pennsylvania (hereinafter the
"Purchaser").
Recitals':
The background to.this agreement is as follows:
R-1. Seller is the owner of a business known as A Special Touch,
a sole proprietorship located at 3806 Market Street, Camp Hill,
Pennsylvania (hereinafter the "Business").
R-2. Seller has agreed to sell and Purchaser has agreed to
purchase the Business pursuant to the terms and conditions herein
stated.
NOW, THEREFORE, the parties hereto, in consideration of the
mutual promises and covenants herein contained, AND INTENDING TO BE
LEGALLY BOUND HEREBY, agree as follows:
1. Recitals. The Recitals set forth above are incorporated
herein by reference and are made a part hereof.
-1-
2. Purchase of Business. Seller will sell and Purchaser Will
purchase the Business on the terms set forth below:
A. The sales price for the Business shall be Ten Thousand
and NO/100 ($10,000.00) Dollars plus the cost of all equipment and
inventory transferred to Purchaser as of the Closing Date.
B. Purchaser shall assume sole and complete responsibility
for, and agrees to indemnify and hold harmless Seller from and
against, any and all expenses, bills and obligations of the Business
from and subsequent to 'the Closing Date.
C. From and after the Closing Date until such time as the
Seller has been paid in full under this Agreement, Purchaser shall
receive sixty-two (62%) per cent for the services she provides for her
clients and fifteen (15%) percent of the net sales proceeds for any
products which she sells through the Business.
D. After the customary and reasonable monthly bills of the
Business have been paid, the remaining monthly balance of business
income shall be paid as follows:
i. Seventy-five (75%) percent to Seller as payment
toward the Ten Thousand and No/100 ($10,000.00) Dollars sales price
and cost of inventory and equipment transferred to Purchaser as of the
Closing Date, which payments shall continue on a monthly basis until
payment in full has been received by Seller for the sales price and
-2-
cost of such inventory and equipment. Seller and Purchaser shall
execute a written list of all inventory and equipment transferred to
Purchaser and an agreed upon cost for such inventory and equipment as
of the Closing Date.
ii. Twenty-five (25%) percent to Purchaser.
Seller and Purchaser agree that the cost of any and all equipment
bought by Purchaser costing in excess of $250.00 shall be paid for
solely by Purchaser and not treated as a customary and reasonable
monthly expense or bill'. Notwithstanding anything to the contrary
herein set forth, all sums due to Seller shall be paid shall be paid
on or before May , 2003. Purchaser may prepay any or all of the
balance due to Seller at anytime without penalty, provided that
prepayments shall be applied in inverse order of maturity and shall
not affect the Purchaser's obligations to make monthly payments to
Seller hereunder. In the event of a default under this agreement by
Purchaser, any and all equipment and inventory transferred to
Purchaser as of the closing date shall become the property of the
Seller and Purchaser agrees to take such action and sign such
documents as are necessary to transfer title to such property to
Seller free and clear of any and all liens and encumbrances.
3. Assiqnment of Lease. Seller shall assign to Purchaser, in
writing, as of the Closing Date any and all rights and obligations
-3-
which she may have under that certain Lease Agreement for the location
of the Business. As of the Closing Date,. Purchaser shall be solely
responsible for all duties and obligations, including but not limited
to payment of rent, of the Tenant under said Lease. Purchaser
acknowledges that the consent of the Landlord to the assignment of
lease will not be obtained and Purchaser assumes any and all risks
associated with not obtaining the Landlord's consent to the assignment
of the Lease to the Purchaser.
4. Closinq Date. Closing shall take place on or before November
1, 2000, at such time and place as agreed upon by Seller and
Purchaser.
5. Face to Face Permanent Cosmetics, Inc. In addition to the
sale of the Business to Purchaser, Seller also agrees to transfer to
Purchaser as of the Closing Date all of the issued and outstanding
stock of Face to Face Permanent Cosmetics, Inc., a Pennsylvania
corporation (hereinafter the "Corporation"). Seller shall deliver and
transfer to Purchaser within ten (10) days of the execution of this
agreement by Seller and Purchaser, a stock certificate transferring
49% of the Corporation to Purchaser. Seller shall deliver and
transfer to Purchaser on a Closing Date the stock certificate
evidencing the transfer of the remaining 51% of the stock of the
Corporation and written resignations of the officers and directors of
--4-
the Corporation effective as of the Closing Date. From and after the
Closin~ Date, Purchaser shall be assume sole and complete
responsibility for, and agrees to indemnify and hold harmless the
Seller from and against, any and all expenses, bills and other
obligations .of the Corporation. Any monthly net proceeds received by
Purchaser through Face to Face shall be paid 62% to Purchaser and 38%
to Seller, and applied to reduce the balance due to Seller under this
Agreement, and continue on a monthly basis untillSeller has been paid
in full under this agreement.
6. Purchaser's Conditions. The obligation of Purchaser to take
those actions required by Purchaser on the closing date shall be~
subject to the following conditions:
A. All representations and warranties made in paragraph 7
herein by Seller are true and correct as of the Closing Date.
7. Seller's ReDresentations and Warranties. Seller hereby
warrants and represents to and agrees with the Purchaser as follows:
A. Seller is the owner, free and clear of any encumbrances,
of the Business and outstanding stock of the Corporation being
transferred pursuant to this agreement.
B. To the best of Seller's knowledge, the Business and the
Corporation have been operated in a usual and customary fashion;
-5-
neither the Business or the Corporation has acquired or disposed Of
any material asset except in the ordinary course of business;
C. Neither the Business nor the Corporation have incurred
any material liability (including liability for taxes) except in the
ordinary course of business; there has not occurred any casualty or
other event resulting in a material adverse change in the Business or
the Corporation, whether or not insured.
D. That the Corporation is in good standing under the laws
of the Commonwealth of Pennsylvania, including all licensing laws
applicable to the Corporation.
E. To the best of Seller's knowledge, all accounts receiv-
able and other claims presently held by the Business and the
Corporation and which will be held by the Business and Corporation on
the Closing Date are valid and binding obligations against the debtors
thereof, barring minor controversies in the usual course of business.
F. There is no litigation or proceeding pending or, to the
knowledge of Seller, threatened against or relating to the Business or
the Corporation.
G. Seller has not, in any capacity, incurred any liability
or obligation for the Business or the Corporation not disclosed
previously to Purchaser. Seller has no knowledge of any basis for the
assertion against the Business or the Corporation of any liability or
--6-
obligation Of any nature or in any amount not disclosed previously to
Purchaser..
H. Notwithstanding anY other provision hereof, the foregoing
warranties, representations and agreements contained in this paragraph
7 shall survive the closing hereunder and shall remain in full force
and effect.
8. Invalidity of Provisions. In the event any one or more of
the provisions contained in this agreement shall for any reason be
held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other
provisions of this agreement, but this agreement shall be construed as
if such invalid, illegal or unenforceable provisions had never been
contained herein.
9. Gender/Number. Whenever the context herein so requires, the
singular number shall include the plural, the plural shall include the
singular, and the use of any gender shall be applicable to all
genders.
10. Bindina Aareement. This agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
heirs, successors and assigns.
11. Entire Aqreement. This agreement contains the entire
agreement between the parties hereto with respect to the subject
matter hereof. Ail prior negotiations, agreements and understandings,
whether written or oral, are either merged into this agreement or are
hereby superseded.
12. Headinqs. The headings or captions preceding the paragraphs
in thi~ agreement are inserted for convenience of reference only and
shall not be construed in interpreting this agreement.
13. Pennsylvania Law. This agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of
Pennsylvania.
IN WITNESS WHEREOF, the parties hereto have set their hands and
seals as of the day and year first above written.
Witness
Wit~es~ - - c/ ~_
c~LLEEN DO~SkX, ~cna
-8-
Exhibit B
72958.94 FROM COLLEENS RECORDS
DATE DUE
November 1, 2000
December 1, 2000
January 1, 2001
February 1, 2001
March 1, 2001
April 1, 2001
May 1, 2001
June 1, 2001
July 1, 2001
August 1, 2001
September 1, 2001
October 1, 2001
November 1, 2001
December 1, 2001
January 1, 2002
February 1, 2002
March 1, 2002
April 1, 2002
May 1, 2002
June 1, 2002
July 1, 2002
August 1, 2002
September 1, 2002
October 1, 2002
November 1, 2002
December 1, 2002
January 1, 2003
February 1, 2003
March 1, 2003
April 1, 2003
May 1, 2003
June 1, 2003
July 1, 2003
August 1, 2003
September 1, 2003
October 1, 2003
AMOUNT DUE
2026.63
2026.63
2026.63
2026.63
2026.63
2026.63
2026.63
2026.63
2026.63
2026.63
2026.63
2026.63
2026.63
2026.63
2026.63
2026.63
2026.63
2026.63
2026.63
2026.63
2026.63
2026.63
2026.63
2026.63
2026.63
2026.63
2026.63
2026.63
2026.63
2026.63
2026.63
2026.63
2026.63
2026.63
2026.63
2O26.63
72958.68
52,062.20
DATE PAID AMOUNT PAID
November 13, 2000 820.70
(1,205.93)
December 23, 2000 1,200.00 (826.63)
January 9, 2001 5,400.00 3,373.37
February 8, 2001 1,100.00 (926.63)
February 16, 2001 1,000.00 1,000.00
March 6, 2001 1,100.00 (926.63)
April 5, 2001 1,000.00 (1,026.63)
May 4, 2001 1,250.00 (776.63)
June 5, 2001 1,000.00 (1,026.63)
July 3, 2001 1,500.00 (526.63)
GIFT CERTIF CREDIT 1,725.78 1,725.78
Aug 7 2001 1,800.00 (226.63)
September 4, 2001 2,000.00 (26.63)
October 1, 2001 (2,026.63)
20,896.48
(3,423.08)
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06.69
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96.91,
96.9L
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SHERIFF,s RETURN _ REGULAR
CASE NO: 2002-00094 p
COMMONWEALTH OF
COUNTY OF PENNSYLVANIA:
CUMBERLAND
ISRAELOFF GINA L
VS
DORSEY COLLEEN
GERALD WORTHINGTON
., Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly SWorn according to law,
Says, the within
DORSEy COLLEEN COMPLAINT & NOTICE was served Upon
DEFENDANT , at 1200:00 HOURs,
at 250 SOUTH 15TH STREET
CD2Wp HILL, PA 17011
COLLEEN DORSE¥
the
on the 8th day of ~qp_~, 20~02
by handin9 to
a true and attested copy of COMPLAINT & NOTICE_~_~__~ together with
and at the Same time directing He____r attention to the contents thereof.
Sheriff.s Costs:
Docketing
Service
Affidavit
Surcharge
18.00
9.75
.00
10.00
.00
37.75
Sworn and Subscribed to before
me this I~ _,
d~ ~ may of
A.D.
' ~ u~nonotary~
So Answers:
01/09/2002
MCNEES WALLACE NURICK
By:
Johnson, Duffle, stewart & Weidner
By: Mark C. Duffle
I.D. No. 75906
301 Market Street
P. O. Box 109
Lemoyne, Pennsylvania 17043-0109
(717) 761-4540
Attomeys for Defendant
GINA L. ISRAELOFF,
COLLEEN DORSEY,
Plaintiff
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2002-00094 Civil
CIVIL ACTION - LAW
NOTICE TO PLEAD
TO:
Gina L. Israeloff
c/o Kimberly M. Colonna, Esquire
McNEES, WALLACE & NURICK, LLC
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108
AND NOW, this¢~o~ day of February 2002, you are hereby notified to plead responsively within
twenty (20) days of the date of service hereof, or judgment may be entered against you.
JOHNSON, DUFFLE, STEWAR_~.~)NER
Mark C. Duffi/e~//
Attorney I.D.'fqo/75906
Lemoyne, PA 17043-0109
(717) 761-4540
Attorneys for Defendant
Johnson, Duffle, Stewart & Weidner
By: Mark C. Duffle
I.D. No. 75906
301 Market Street
P. O. Box 109
Lemoyne, Pennsylvania 17043-0109
(717) 761-4540
Attorneys for Defendant
GINA I. ISRAELOFF,
Plaintiff
V. :
COLLEEN DORSEY, :
Defendant :
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2002-00094 Civil
CIVIL ACTION - LAW
ANSWER TO PLAINTIFF'S COMPLAINT,
NEW MATTER and COUNTERCLAIM
AND NOW, this"~-~'~ day of February 2002, comes Defendant, COLLEEN DORSEY, by and
through her undersigned attorneys, Johnson, Duffle, Stewart & Weidner, and file this Answer to Plaintiffs'
Complaint, and in support thereof avers as follows:
1. Admitted.
2. Denied. The Defendant has a place of business at 250 South 1§th Street, Camp Hill,
Cumberland County, Pennsylvania 17011.
3. Admitted. By way of further response, the parties conducted closing on the Agreement
on or about September 15, 2000.
4. Admitted.
5. Admitted in part. Denied in part. It is admitted that pursuant to the Agreement, Plaintiff
sold the business to Defendant for Ten Thousand and 00/100 Dollars ($10,000.00). It is further admitted
that the Plaintiff transferred to Defendant the equipment and inventory at the time of closing on or about
September 15, 2000. It is denied that the Plaintiff sold to the Defendant the equipment and inventory at
cost.
6. Denied. Plaintiff and Defendant did not execute a written list of all inventory and
equipment transferred. Plaintiff and Defendant agreed upon a total cost of $62,958.94, but Defendant was
led'to believe that the $62,956.94 included the $10,000.00 purchase price for the business. The true and
correct copy of the inventory and equipment list attached to Plaintiff's Complaint as Exhibit "B" in fact does
not show any signatures of the Plaintiff or the Defendant.
7. Admitted in part. Denied in part. It is admitted that the total purchase price as set forth in
the written list of inventory and equipment attached to Plaintiff's Complaint and the Agreement also attached
to Plaintiff's Complaint is $72,958.94. It is denied in that the Defendant was led to believe that the total
purchase price was $62,958.94.
8. Admitted inpart. Denied inpart. It is admitted that after purchasing the business,
Defendant moved it from the Camp Hill location to its present location. It is denied in that the address of its
present location is 250 South 15th Street, Camp Hill, Cumberland County Pennsylvania.
9. Admitted inpart. Denied inpart. It is admitted that the Agreement provides that
Defendant is to make monthly payments to Plaintiff from the income of the business and from the proceeds
of the corporation until the purchase price is paid in full. It is denied in that the averment in paragraph 9
implies that payments are required to be made on a monthly basis. The payments are determined by a
percentage of the proceeds after the Defendant is paid and the customary and reasonable monthly bills of
the business have been paid. If there is no balance remaining for distribution to Plaintiff, then no monthly
payment would be required.
10. Admitted. The language contained in Plaintiff's Complaint in paragraph 10 is an accurate
recitation of the payment mechanism set forth in the Agreement.
11. Admitted. The Agreement states "notwithstanding anything to the contrary herein set
forth, all sums due to Seller shall be paid on or before May 2003."
12. Admitted in part. Denied in part. It is admitted that the Agreement provides that in
exchange for the transfer of the corporation stock, a portion of the corporation's monthly proceeds were to
be paid to Plaintiff and applied to reduce the amount of purchase price owed by Defendant. It is denied in
that a portion of the corporation's monthly net proceeds were to be paid to Plaintiff, not monthly proceeds.
13. Admitted. The language set forth in paragraph 13 is an accurate statement of that which
is set forth in the Agreement.
14. Denied.
September 2001.
Defendant made payments for the months of October 2000 through
15. Denied. The monthly amounts that have been paid by Defendant to Plaintiff represent
more than the full amounts due under the provisions of the Agreement. By way of further response, the
Plaintiff has not withdrawn her sixty-two percent (62%) under the provisions of the Agreement and therefore,
the payments which were made were more than what was required under the payment mechanism in the
Agreement.
16. Denied. The total amount of payments paid by Defendant to Plaintiff equals
$24,074.90. Therefore, the total amount remaining due to Plaintiff according to the inflated cost of inventory
and equipment figure generated by Plaintiff, is $48,884.04.
17. Denied. Defendant did not make any payments for the months of October 2001,
November 2001, and December 2001, as no payments were due under the provisions of the Agreement.
COUNT I
Breach of Contract
18. Paragraph 18 is one of incorporation and one to which no responsive pleading is required.
19. Denied. The averment set forth in paragraph 19 is a legal conclusion to which no
responsive pleading is required. By way of further response, the parties failed to execute a written list of all
inventory and equipment as required in paragraph 2(D)(i) in the Agreement. Therefore, a material term (the
cost) was left undetermined, thereby rendering the Agreement invalid in formation.
20. Denied. The Plaintiff did not per[orm all of her contractual obligations, as the Plaintiff
failed to provide an executed written list of all inventory and equipment as of the closing date as required in
paragraph 2 of the Agreement. By way of further response, the Plaintiff did transfer the inventory and
equipment and the stock of the corporation to the Defendant.
21. Denied. The averment set forth in paragraph 21 is a legal conclusion to which no
responsive pleading is required. By way of further response, the Defendant has not breached the contract
and has made payments in excess of what is required under the Agreement. The Defendant was unable to
retain her sixty-two percent (62%) as set forth in the provisions of the Agreement, and therefore the
payments which have been made to Plaintiff are in excess of those required.
22. Denied. The averment set forth in paragraph 22 is a legal conclusion to which no
responsive pleading is required. By way of further response, the Defendant's monthly payments in fact do
not represent the correct monthly payments due under the provisions of the Agreement. Those payments
are in excess of what is required under the Agreement, as the Defendant has not retained her sixty-two
percent (62%) of the proceeds as set forth in the Agreement.
23. Denied. The averment set forth in paragraph 23 is a legal conclusion to which no
responsive pleading is required. By way of further response, the Defendant did not breach the contract but
in fact made payments in excess of what she was required to make under the provisions of the Agreement,
therefore Plaintiff has not incurred any damages.
WHEREFORE, Defendant respectfully requests this Honorable Court enter judgment in favor of
Defendant and against Plaintiff.
COUNT II
Fraudulent Misrepresentation
24. Paragraph 24 is one of incorporation and one to which no responsive pleading is required.
25. Denied. The Defendant did not provide any false or misleading information to Plaintiff
regarding the cash flows of the business.
a. Denied. Defendant did not misstate any amounts of income received for services
provided at the Business.
b. Denied.
sold at the Business.
c. Denied.
the Business.
d. Denied.
e. Denied.
Business.
f . Denied.
Business.
Defendant did not misstate the amount of income received for the products
Defendant did not misstate the costs of the supplies purchased for use in
Defendant did not misstate the amount of outflows for rent and taxes.
Defendant did not misstate the amount of gift certificates redeemed at the
Defendant did not misstate the amounts of other inflows and outflows for the
26. Denied. Defendant did not provide any false information nor ever intended to mislead
Plaintiff as to the proper amounts of the monthly payments.
27. Denied. The averment set forth in paragraph 27 is a legal conclusion to which no
responsive pleading is required. By way of further response, the Plaintiff should rely on any information
)rovided by the Defendant, as it is accurate.
28. Denied. It is denied that there was any fraudulent misrepresentation made by
Defendant. Plaintiff has received more than the full amount of any payments required under the provisions
of the Agreement. Plaintiff has not incurred any damages due to the fact that payments were made in
excess of that required under the Agreement.
WHEREFORE, the Defendant respectfully requests this Honorable Court enter judgment in favor of
the Defendant and against Plaintiff, thereby dismissing her Complaint.
29. Paragraphs one (1) through twenty-eight (28) are incorporated heroin as if fully set forth.
30. The Business Sale and Purchase Agreement attached as Exhibit "A" to Plaintiff's Complaint
was executed on June 30, 2000, by the parties hereto.
31. The closing date on the sale and purchase of the business set forth in paragraph 4 of the
Agroement was September 15, 2000.
32. Paragraph 2(D)(i) states "Seller and Pumhaser shall execute a written list of all inventory and
equipment transferrod to Purchaser and an agroed-upon cost for such inventory and equipment as of the
closing date."
33. Several weeks following the closing date, the Seller (Plaintiff) provided to Purchaser
(Defendant) an itemized list of the inventory and equipment and the cost of such inventory and equipment.
34. The Purchaser (Defendant) did receive a copy of the list of inventory and equipment, as
attached to Plaintiff's Complaint as Exhibit "B."
35. Discussions between the Plaintiff and Defendant prior to entering into the Business Sale and
Purchase Agreement focused on the total cost of the inventory and equipment.
36. The parties discussed that the figure would be approximately $48,000.00.
37. When provided with the list of inventory and equipment, the Defendant was led to believe that
the $62,958.94 included the $10,000.00 purchase price for the business.
38. The Defendant never executed or in any way agreed to pay the cost outlined for the inventory
and equipment that was provided to the Defendant and attached as Exhibit "B" to Plaintiff's Complaint.
39. There was no manifest mutual assent between the parties to the essential and material terms
of the contract. There was no meeting of the minds with regard to the price term.
40. The list of inventory and equipment attached to Plaintiff's Complaint as Exhibit "B" includes
sales tax on much of the equipment and inventory that was transferred to Defendant for eventual resale.
Any transfer for a consideration of the ownership, custody, or possession of tangible personal property for
the purpose of resale is exempt from sales tax. 61 Pa. Code §32.3.
41. It is believed and therefore averred that the Plaintiff collected sales tax pursuant to the sale of
the inventory and equipment for resale, thereby committing a fraud upon the Commonwealth of
Pennsylvania.
42. The list of inventory and equipment provided to Defendant and attached as Exhibit "B" is a
fraudulent misrepresentation of the actual value or cost of the property transferred pursuant to the
Agreement.
WHEREFORE, the Defendant respectfully requests this Honorable Court dismiss Plaintiff's
Complaint and find in favor of Defendant, or grant Defendant any other legal remedies available which are
supported by the defenses set forth in this New Matter.
43.
Colleen Dorsey v. Gina L. Israeloff
Paragraphs one (1) through forty-two (42) are incorporated herein as if fully set forth.
44. The Business Sale and Purchase Agreement dated June 30, 2000, attached to Plaintiff's
Complaint as Exhibit "B," provides as follows:
From and after the closing date until such time as Seller has paid in full under this Agreement,
Purchaser shall receive sixty-two (62%) percent for the services she provides for her clients
and fifteen (15%) percent of the net sales proceeds for any products which she sells to the
business. [Paragraph 2(c).]
After the customary and reasonable monthly bills of the business have been paid, the
remaining monthly balance of business income shall be paid as follows:
Seventy-five (75%) percent to Seller as payment toward the Ten Thousand and
00/100 ($10,000.00) Dollars sales price and cost of inventory and equipment
transferred to Purchaser as of the closing date, which payments shall continue on a
monthly basis until payment in full has been received by Seller for the sales price and
cost of such inventory and equipment.
Twenty-five (25%) percent to Purchaser. [Paragraph 2(d).]
Any monthly net proceeds received by Purchaser through Face to Face shall be paid 62% to
Purchaser and 38% to Seller, applied to reduce the balance due to Seller under this
Agreement, and continue on a monthly basis until Seller has been paid in full under this
Agreement. [Paragraph 5.]
45. The Defendant, as Purchaser, has made payments in excess of those required under the
Agreement and specifically, the provisions set forth herein, from September 2000 through September 2001.
46. Initially during the first few months following the closing date, the Defendant took a share of
her sixty-two percent (62%) for the services she provides for her clients and the fifteen percent (15%) of the
net sales proceeds for the products which she sells through the business.
47. From January 2001 to date, the Defendant has taken well below and most often none of her
sixty-two percent (62%) for the services she provides for her clients and her fifteen percent (15%) of the net
proceeds for any products she sells to the business.
48. The Defendant therefore has paid to Plaintiff in excess of those monies due and owing under
the provisions of the Business Sale and Purchase Agreement.
49. It is averred and therefore believed that the inventory and equipment outlined in Exhibit "B" of
Plaintiff's Complaint includes sales tax charged to Defendant for items sold for resale, and therefore are
exempt from taxation.
WHEREFORE, the Defendant respectfully requests this Honorable Court enter judgment in her favor
and against Plaintiff in an amount as yet undetermined, representing monies paid from Defendant to Plaintiff
in excess of those due under the Agreement, as well as any monies that have been paid which represent
sales tax. The Defendant prays your Honorable Court to award any other relief it deems fair and just.
:154588
Respectfully submitted,
JOHNSON, DUFFLE, STEWART & WEIDNER
,,,,,'~ark C. Duffle/,"'/ //
Attorney i.D. I~. ,75906
301 Market StreF4
P.O. Box 109 /
Lemoyne, PA '17043-0109
(717) 761-4540
Attorneys for Defendant
I, COLLEEN DORSE¥', verif7 that the s[atements made in this ANSWER TO PLAINTIFFS'
COMPLAINT 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.
Colleen Dors~y - - ~r
GINA L. ISRAELOFF,
COLLEEN DORSEY,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTIONNO. 2002 -94
Defendant
PRELIMINARY OBJECTION TO DEFENDANT'S ANSWER,
NEW MATTER~ AND COUNTERCLAIM
Plaintiff Gina L. Israeloff, by and through her attorneys McNees Wallace & Nurick LLC,
files the following Preliminary Objections to Defendant's "Answer to Plaintiffs Complaint, New
Matter and Counterclaim:
1. On January 7, 2002, Plaintiff Gina L. Israeloff ("Israeloff") filed a complaint in
the above-captioned matter against Defendant Colleen Dorsey ("Defendant").
2. The Complaint alleged that Defendant had breached her contract with Israeloff by
failing to make monthly payments as required by a "Business Sale and Purchase Agreement"
executed by Defendant. See Complaint, generally.
3. The Complaint also alleged that Defendant had provided Israeloffwith false and
misleading information regarding the business from which the monthly payments were to be
made. See Complaint, generally.
4. On February 22, 2002, Defendant filed an Answer with New Matter and
Counterclaim.
5. The Answer with New Matter and Counterclaim, in general terms, deny that
Defendant failed to make the required payments.
Preliminary Objection pursuant to
Pa. R. Civ. P. 1028(a)(2)
6. Pa. R. Civ. P. 1028(a)(2) provides that a preliminary objection may be filed based
upon the "inclusion of scandalous or impertinent matter."
7. Paragraph forty-one (41) of Defendant's New Matter states, "It is believed and
therefore averred that the Plaintiff collected sales tax pursuant to the sale of the inventory and
equipment for resale, thereby committing a fraud upon the Commonwealth of Pennsylvania."
8. The averments of paragraph forty-one (41) are not relevant to claims asserted in
this case, or to the new matter and counterclaim asserted by Defendant, so they constitute
scandalous and impertinent matter.
9. Allegations that are immaterial and inappropriate to the claims or defenses in a
case should be stricken.
WHEREFORE, Plaintiff Gina Israeloff requests that paragraph forty-one (41) of the
Defendant's New Matter be stricken.
Dated: March 18, 2002
McNEES WALLACE & NURICK LLC
Kim~berly ~. Colonna
I.D. No. 80362
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108
(717) 232-8000
Attorneys for Plaintiff
2
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was served by
United States first-class mail, postage prepaid, upon the following:
Mark C. Duffle, Esquire
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
Kimber~oloSa~w~-~
Dated: March 18, 2002
PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next:
X Pre-Trial Argument Court
CAPTION OF CASE
(entire caption must be stated in full)
GINA L. ISRAELOFF, Plaintiff
COLLEEN DORSEY, Defendant
Argument Court
Civil Action No. 02-94
State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint,
etc.): Plaintiff's Preliminary Objection to Defendant's Answer, New Matter
and Counterclaim
Identify counsel who will argue the case:
(a)
(b)
for Plaintiffs:
Kimberly M. Colonna, McNees Wallace & Nurick LLC, 100 Pine
Street, Harrisburg, PA 17108
for Defendant: Mark C. Duffle, Johnson, Duffle, Stewart & Weidner,
301 Market Street, P.O. Box 109, Leymoyne, PA 17043-0109
I will notify all parties in writing within two days that this case has been listed for argument.
McNEES WALLACE & NURICK LLC
Kimberly M. Colonna
Attomeys for Plaintiff
Dated: April 30, 2002
Johnson, Duffle, Stewart & Weidner
By: Mark C. Duffle
I.D. No. 75906
301 Market Street
P. O. Box 109
Lcmoyne, Pennsylvania 17043-0109
(717) 761-4540
Attorneys for Defendant
GINA L. ISRAELOFF,
COLLEEN DORSEY,
Plaintiff ·
Defendant ·
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2002-00094 Civil
CIVIL ACTION - LAW '
TO THEPROTHONOTARY:
Please strike paragraph 41 from Defendant's Answer, New Matter, and Counterclaim·
Date:
Respectfully submitted,
JOHNSON, DUFFLE, STEW~IDNER
Mark C. Duffle L//
Attorney I.D. No.~5906
301 Market Street-
P.O. Box 109
Lemoyne, PA 17043-0109
(717) 761-4540
Attorneys for Defendant
: 158341
CERTIFICATE OF SERVfCF
AND NOW, this day of May 2002, the undersigned does hereby certify that he did this date
serve a copy of the foregoing Praecipe upon the other parties of record by causing same to be deposited in the
United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows:
Kimberly M. Colonna, Esquire
McNEES, WALLACE & NURICK, LLC
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
JOHNSON,By: ~c///7~DUFFIE' ~S~EIDNER
~Vlark C. Duffi~//
Attorney I.D. Nt. 75906
Johnson, Duffle, Stewart & Weidner
By: Mark C. Duffle
I.D. No. 75906
301 Market Street
P. O. Box 109
Lemoync, Pennsylvania 17043-0109
(717) 761-4540
Attorneys for Defendant
GINA L. ISRAELOFF,
COLLEEN DORSEY,
Plaintiff ·
Defendant :
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2002-00094 Civil
CIVIL ACTION - LAW
STIPULATION
AND NOW, this ,,~o'~ day of May 2002, the parties hereto, through their undersigned attorneys,
stipulate, agree and consent to the following:
1. Plaintiff filed a Complaint on or about January 8, 2002·
2. Defendant filed an Answer to Plaintiff's Complaint, New Matter, and Counterclaim on or about
February 22, 2002.
3. In Defendant's New Matter, paragraph 41 set forth allegations that Plaintiff argued were
immaterial and inappropriate to the proof of the cause of action and should be stricken as impertinent.
4. In furtherance of that position, Plaintiff filed Preliminary Objections to Defendant's New Matter
and paragraph 41, requesting that the same be stricken.
5. The matter has been listed for argument before this Honorable court on May 22, 2002.
6. By this Stipulation, the parties hereto agree that paragraph 41 of Defendant's New Matter
should be stricken.
McNEES, WALLACE & NURICK, LLC
mber~ M. Colonna, Esquire
Attorney for Plaintiff
: 158345
JOHNSON, DUFFLE, ~TE/~& WEIDNER
27.
Gina L. Israeloff
V
Colleen Dorsey
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
:
:
.
:
: NO. 02-94 CIVIL TERM
:
ORDER OF COURT
AND NOW, May 23, 2002, by agreement of cotmsel, the above-captioned matter
is continued from the May 22, 2002 Argument Court list. Counsel is directed to relist the case
when ready.
,~dmberly M. Colonna, Esquire
For the Plaintiff
,~Vlark C. Duffle, Esquire
For the Defendant
Court Administrator
Id
By the Court,
GINA L. ISRAELOFF,
COLLEEN DORSEY,
Plaintiff
· IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION NO. 2002 -94
Defendant
PLAINTIFF'S REPLY TO DEFENDANT'S
NEW MATTER AND COUNTERCLAIM
Plaintiff Gina L. Israeloff ("Israeloff), by and through her attorneys McNees Wallace &
Nurick LLC, files the following Reply to Defendant's New Matter and Counterclaim:
New Matter
29. Israeloffincorporates herein by reference paragraphs one (1) through twenty-eight
(28) of her Complaint·
30. Admitted.
31. Admitted with clarification. Israeloff admits that the closing of the sale and
purchase of the business took place on September 15, 2002. The Agreement does not specify a
particular date.
Denied as stated· The Agreement is a document that, taken in its entirety, speaks
32.
for itself·
33.
Admitted in part and denied in part. Israeloff admits that she provided to
Defendant a itemized list of the inventory and equipment and it cost. Israeloffdenies that the list
of inventory and equipment was provided several weeks following the closing date. By way of
further answer, the inventory list was provided to Dorsey on September 18, 2000.
34. Admitted.
35. Admitted.
36. Admitted with clarification. Israeloffadmits that a figure of $48,000.00 was
initially discussed as the total cost of the inventory and equipment. However, at Defendant's
request and with Defendant's approval, additional inventory and equipment were later purchased
for the business, and Defendant was aware that the purchases of additional equipment would
increase cost of purchasing the inventory and equipment. By way of further answer,
approximately one month before the closing, Defendant was advised that the cost of the
inventory and equipment would be about $10,000.00 more than the $48,000.00 figure initially
discussed.
37. Denied. Israeloff denies that Defendant was lead to believe that the price of the
inventory and equipment, $62,958.94, included the additional $10,000.00 that was part of the
purchase price. By way of further answer, the Agreement clearly states that the purchase price
was $10,000.00 plus the cost of all equipment and inventory transferred to Defendant.
38. Denied. The averments of the paragraph constitute conclusions of law to which
no response is required. To the extent a response is deemed necessary, Israeloff denies that
Defendant never agreed to pay the cost of the inventory and equipment. By way of further
answer, the Defendant agreed to pay the cost of the inventory and equipment by executing the
Agreement and further demonstrated her agreement by making payments to Israeloff.
39. Denied. The averments of the paragraph constitute conclusions of law to which
no response is required. To the extent a response is deemed necessary, Israeloff denies the
averments. By way of further answer, the Purchase Price for the business was clearly stated in
paragraph 2.A. of the Agreement.
2
40. Admitted in part and denied in part. Israeloff admits that sales tax was included
in the cost of some of the inventory and equipment transferred to Defendant and admits that the
some of the inventory was transferred to Defendant for resale. Israeloffdenies that the
equipment was transferred to Defendant for resale. The remaining averments of the paragraph
constitute conclusions of law and said averments are denied.
41. Stricken by stipulation of the parties - no answer required.
42. Denied. The averments of the paragraph constitute conclusions of law to which
no response is required. To the extent a response is deemed necessary, the averments are denied.
By way of further answer, the items and prices contained on the list of inventory and equipment
are accurate
WHEREFORE, Israeloff demands that judgment be entered against Defendant and that
Plaintiff be awarded compensatory damages, punitive damages, interest, costs, and such other
and further relief as deemed just and proper by the Court.
Counterclaim
43. Israeloffincorporates herein by reference paragraphs one (1) through twenty-eight
(28) of her Complaint and paragraphs twenty-nine (29) through forty-two (42) above.
Denied as stated. The Agreement is a document that, taken in its entirety, speaks
44.
for itself.
45.
Denied. After reasonably investigation, Israeloff lacks sufficient information and
knowledge to form a belief as to the troth of the averments of the paragraph, and consequently,
the averments are denied.
46. Denied. After reasonable investigation, Israeloff lacks sufficient information and
knowledge to fomi a belief as to the troth of the avemients of the paragraph, and consequently,
the averments are denied.
47. Denied. After reasonable investigation, Israeloff lacks sufficient information and
knowledge to form a belief as to the truth of the averments of the paragraph, and consequently,
the averments are denied.
48. Denied. Israeloff denies that Defendant has paid to Plaintiff amounts in excess of
the monies due and owing under the Agreement. By way of further answer, Defendant has failed
to pay the entire purchase and has failed to make any payments to Israeloff since August 2001.
Over $52,000.00 of the purchase price remains unpaid.
49. Admitted in part and denied in part. Israeloff admits that sales tax was included
in the cost of some of the inventory and equipment transferred to Defendant and admits that the
some of the inventory was transferred to Defendant for resale. Israeloff denies that the
equipment was transferred to Defendant for resale. The remaining averments of the paragraph
constitute conclusions of law and said averments are denied.
WHEREFORE, Israeloff demands that judgment be entered against Defendant and that
Plaintiffbe awarded compensatory damages, punitive damages, interest, costs, and such other
and further relief as deemed just and proper by the Court.
Dated: June 25, 2002
McNEES WALLACE & NURICK LLC
Kimberly 19I. (~olor~na-
I.D. No. 80362
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108
(717) 232-8000
Attorneys for Plaintiff
VERIFICATION
Subject to the penalties of 18 Pa. C.S.A. § 4904, relating to unswom falsification to
authorities, I hereby certify that I have reviewed the foregoing and that the facts set forth therein
are tree and correct to the best of my knowledge, information and belief.
Date:
CERTIFICATE OF SERVICE
I hereby certify that a tree and correct copy of the foregoing document was served by
United States first-class mail, postage prepaid, upon the following:
Mark C. Duffle, Esquire
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
Kimb-erly M?Col[nna-
Dated: June 25, 2002
GINA L. ISRAELOFF,
COLLEEN DORSEY,
Plaintiff
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION NO. 2002 -94
Defendant
PLAINTIFF'S MOTION FOR PARTIAL JUDGMENT
ON THE PLEADINGS
Pursuant to Pa. R. Civ. P. 1034, Plaintiff Gina L. Israeloff moves for partial judgment on
the pleadings. In support of her motion Israeloff states as follows:
1. On January 7, 2002, Gina L. Israeloff ("IsraelofP') filed a complaint against
Defendant Colleen Dorsey ("Defendant").
2. IsraelofPs Complaint asserted claims of breach of contract and fraudulent
misrepresentation.
3. On or about February 22, 2002, Defendant filed an answer with new matter that
admitted some of the factual allegations of the Complaint.
4. Specifically, Defendant admitted the following facts:
(a) Israeloff and Defendant executed the written Business Sale and Purchase
Agreement (the "Agreement") that is attached to the Complaint as Exhibit A
(Complaint, ¶ 3, Answer, ~ 3);
(b) Defendant agreed upon a total purchase price of $62,958.94 (Complaint, ¶ 6,
Answer, ~ 6);
(c) The Agreement required that the full purchase price be paid by May 2003;
(Complaint, ¶ 11, Answer, ~ 11);
claim.
(d) Israeloff transferred the to Defendant the equipment and inventory at the time
of closing;
(e) The total amount of payments paid by Defendant to Plaintiff equals
$24,074.90. (Answer, ~ 16).
Defendants admissions establish the necessary elements of a breach of contract
6. Defendant's admissions establish that Israeloffis entitled to a judgment in the
amount of $38,884.04 on her breach of contract claim.
7. This Motion for Judgment on the Pleadings is based upon facts appearing of
record in the pleadings filed by the parties.
WHEREFORE, Plaintiff Gina L. Israeloff moves for judgment in her favor and against
the Defendant Colleen Dorsey in the amount of $38,884.04, plus interest and costs.
McNEES WALLACE & NURICK LLC
Kibaberly 1M. Colonna
I.D. No. 80362
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108
(717) 232-8000
Attorneys for Plaintiff Gina L. Israeloff
Dated: August 1, 2003
CERTIFICATE OF SERVICE
I hereby certify that a tree and correct copy of the foregoing document was served by
United States first-class mail, postage prepaid, upon the following:
Mark C. Duffle, Esquire
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
Kimberly M. Col
Dated: August 1, 2003
ohnson, Duffle, Stewart & Weidner
By: Mark C. Duffle
I.D. No. 75906
301 Market Street
P~ O. Box 109
Lemoyne, Pennsylvania 17043-0109
(717) 761-4540
Attorneys for Defendant
GINA L. ISRAELOFF,
Plaintiff :
COLLEEN DoRSEY, :
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2002-94 Civil Term
CIVIL ACTION - LAW
DEFENDANT'S ANSWER TO PLAINTIFF'S MOTION
FOR PARTIAL JUDGMENT ON THE PLEADINGS
AND NOW, this 22nd day of August 2003, comes Defendant, Colleen Dorsey, by and through her
undersigned attorneys, Johnson, Duffle, Stewart & Weidner, and files this Answer to Plaintiff's Motion for
Partial Judgment on the Pleadings, and in support thereof states as follows:
1. Admitted.
2. Admitted,
3. Admitted.
4. a. Admitted.
b. Denied. When the Answer to Plaintiffs' Complaint, New Matter, and Counterclaim are
reviewed thoroughly, it is evident that Defendant's position is that the figure of $62,958.94 was, at the
time of execution of the Agreement, the figure upon which the parties agreed. The composition and
accuracy of the $62,958.94 sale price is the matter which was not clearly understood. The
Defendant was under the impression that the $10,000.00 purchase price for the business was
included in the $62,958.94, and the list of inventory and equipment was not provided until after the
closing date and that "the Defendant never executed or in any way agreed to pay the costs outlined
for the inventory and equipment which was provided to the Defendant and attached as Exhibit "B" to
· . . , New Matter, paraqraph 38. Furthermore, there was no meeting
P amtffs Compla nt. Defendant's ' '
of the minds between the parties with assent to the purchase price. Defendant's New Mattel
Admitted.
Admitted.
e. Admitted. According to Defendant's records at the time of filing the Answer, New
Matter, and Counterclaim, the figure of $24,074.90 was accurate.
5. Denied.
)leading is required.
6. Denied.
pleading is required.
7. Denied.
is required.
Said averment is denied as a conclusion of law to which no responsive
Said averment is denied as a conclusion of law to which no responsive
Said averment is denied as a conclusion of law to which no responsive
WHEREFORE, Defendant Colleen Dorsey prays this Honorable Court deny Plaintiff's Motion for
Judgment on the Pleadings and allow the parties to move the case forward to a fair and final resolution.
:217535
Respectfully submitted,
JOHNSON, DUFFLE, STEWART & WEIDNER
Mark C. Duffle
Attorney I.D. No.'~5906
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
(717) 761-4540
Attorneys for Defendant
CERTIFICATE OF SERVICE_
AND NOW, this 22nd day of August 2003, the undersigned does hereby certify that a copy of the
foregoing document was served upon the other parties of record in the following manner:
B~v First Class U.S. Mail to.:
Kimberly M. Colonna, Esquire
McNEES, WALLACE & NURtCK, LLC
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
JOHNSON, DU FFIE, STEW.~A.~.~IDNER
Mar~'/C.'D uffie
Attorney I.D. No. '7~, 906
GINA ISRAELOFF
V.
COLLEEN DORSEY
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2002-0094 CIVIL TERM
IN RE: PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT
BEFORE BAYLEY~ GUIDO~ JJ.
ORDER OF COURT
AND NOW, this 8TM day of SEPTEMBER, 2003, after review of the pleadings
and exhibits attached thereto, as well as the briefs of the parties, and having heard
argument thereon, it appears that there are substantial issues of material fact in dispute,
which include, inter alia, the value of the inventory transferred and the agreed upon
consideration. Therefore, Plaintiff's Motion for Partial Summary Judgment is DENIED.
Edward E. Guido, J.
/{[imberly M. Colonna, Esquire
100 Pine Street
P.O. Box 1166
Harrisburg, Pa. 17108
Mark C. Duffle, Esquire
-/301 Market Street
P.O. Box 109
Lemoyne, Pa. 17043
0 q
:sld
PRAECIPE FOR LISTING CASE FOR TRIAL
(Must be typewritten and submitted in duplicate)
TO THE PNDTHONOTARY OF CUMBERIAP~ COUNTY
Please list !the followin§ case:
(Check one) ( ) for JURY trial at the next term of civil court.
( X ) for trial without a jury.
CAPTION OF CASE
(entire caption rm~st beI stated in full)
Gina L. Israeloff
vs.
Colleen Dorsey
( F laintif f )
vs. (Defendant)
x )
)
)
one)
Civil Action - Law
Appeal from Arbitration
(other)
The trial list will be called on
and
Trials con, hence on
Pretrials will be held on
(Briefs are due 5 days before pretrials. )
(The party listing this case for trial she
provide fortbNith a copy of the praecipe
all counsel, pursuant to local Rule 214.1
Indicate the atto~
Kimberly M. Colonna~ ]
Indicate trial cou
Mark C. Duffie~ 301 Ma
This case is ready
Date:
No. 94 Civil t~ 2002
~ey who will try case for the pc~ty who files this praecipe:
)0 Pine St., PO Box 1166, Harrisburg, PA 17108
~sel for other parties if known:
~ket St., PO Box 109, Lemoyne, PA
17043
October 22, 2001
for trial.
Print Name: Kimberly M. Colonna
Attorney for: Plaintiff
11
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was served by
United States first-cla~s mail, postage prepaid, upon the following:
Mark C. Duffle, Esquire
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
lmoeny ~w. Colo~ma
Dated: October 23, 20 )3
GINA L. ISRAELOFF,
PLAINTIFF
· IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
COLLEEN DORSEY,
DEFENDANT
: 02-0094 CIVIL TERM
ORDER OFCOURT
AND NOW, this ay
of November, 2003, IT IS ORDERED that
a civil bench triallwill be conducted in Courtroom Number 2, Cumberland County
Courthouse, Carlisle, Pennsylvania at 1:30 p.m., Monday, December 22, 2003.
Edgar B. Bayley, J. J
Kimberly M. Col~nna, Esquire
100 Pine Street!
P.O. Box 1166 i
Harrisburg, PA ~17108
For Plaintiff
Mark C. Duffle, Esquire
301 Market Street
P.O. Box 109 '
Lemoyne, PA 1~7043
For Defendant
Court Administrator-- ,~ ~
:sal
GINA L. ISRAELOFF,
PLAINTIFF
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
COLLEEN DORSEY,
DEFENDANT
: 02-0094 CIVIL TERM
AND NOW, this
ORDER OF COURT
day of December, 2003, pursuant to a
stipulation of counsel, the non-jury trial scheduled for December 22, 2003, IS
CANCELLED.
V~imbedy M. Colonna, Esquire
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108
For Plaintiff ~
/Mark C. Duffie, Esquire
301 Market Street
P.O. Box 109
Lemoyne, PA 17043
For Defendant
Byt ~
Edgar B. Bayley, J.
Court Administrator
:sal
McNees Wallace & Nurick,,c
attorr~eys at law
December 9, 2003
The Honorable Edgar B. Bayley
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
RE: Gina L. Israeloff v, Colleen Dorsey
Civil Action No. 02-0094
Dear Judge Bayley:
The above-referenced case has been scheduled for non-jury trial at 1:30 P.M. on
December 22, 2003. Because the parties have agreed to stipulate to the entry of judgment
in favor of the Plaintiff, the non-jury trial will not be necessary.
Enclosed is a copy of the Stipulation for Entry of Judgment. Pursuant to that
stipulation, the Defendant Colleen Dorsey has agreed that on December 22, 2003, the
Prothonotary can enter judgment against her and in favor of the Plaintiff, Gina L. Israeloff,
for the full amount demanded in Plaintiff's Complaint. Due to Ms. Dorsey's financial
condition and the possibility that she may file for bankruptcy, Ms. Dorsey is not able to
agree to the entry of judgment prior to December 22, 2003.
Absent a bankruptcy filing by Ms. Dorsey, counsel for the Plaintiff will file the
Stipulation and a praecipe for the entry of judgment on the morning of December 22, 2003.
Thank you for your attention to this matter. Please do not hesitate to call either
Mark Duffle or me if you have any questions or concerns.
Sincerely,
Enclosure
c: Mark C. Duffle
Court Administrator
McNEES WALLACE & NURICK LLC
Kimberly M. Colonna
100 PINE STREET · PO Box 1166 · HARRISBURG, PA 17108-1166 · TEL; 717.232.8000 ° FAX: 717.237.5300 · WWW,MWN.COM
HAZLETON, PA * STATE COLLEGE, PA · COLUMBUS, OH * WASHINGTON, DC
Johnson, Duffle, Stewart & Weidner
By: Mark C. Duffle
i.D. No. 75906
301 Market Street
P. O. Box 109
Lemoyne, Pennsylvania 17043-0109
(717) 761-4540
Attorneys for Defendant
GINA L. ISRAELOFF,
COLLEEN DORSEY,
Plaintiff
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2002-94 Civil Term
CIVIL ACTION - LAW
SUGGESTION OF BANKRUPTCY
TO THE HONORABLE, THE JUDGES OF THIS COURT:
On December 19, 2003, Defendant Colleen Dorsey filed a Petition in Bankruptcy in the United States
Bankruptcy Court for the Middle District of Pennsylvania, Harrisburg Division, to docket number 1-03-07458.
A true and correct copy of said Petition is attached hereto. The automatic stay pursuant to §362(a) of the
U.S. Bankruptcy Code is in place.
:222512
Respectfully submitted,
MtA~tok C. Duffle
rney I.D. No. 7/5906
Attorney for Defeh~nt
Official Form 1) (9/01)
Domey, Colleen E.
dba A Special Touch; fka Colleen E. Domey-Foley; fka Colleen E.
Dorsey-Dorntnoski
xxx~xx-7805 25-1 870514
4275 Nantucket DHve
Mechanicsburg, PA 17050
Cumberland
4275 Nantucket Drive
Mechanicsburg, PA 17050
Social Security/Tax Identlifcation No. (if more than one, state all):
Street Address of Joint Debtor (Nc>. and Street, C~[y, State and Zip Code):
County of R~idence or of the Principal Prace of Business
Marling Address of Joint Debtor (if d~erent ~ stree~ address):
Ven_ue._ {Ch~ck any applicable._b0x- .
[] Debtor has been domiciled or has had a residence, principal place of business, or principal assets in this District for lB0 days immediately
preceding the date of this petition or for a longer part of such 180 days than in any other Dis~ct.
[] There is a bankruptcy case concerning debtor's affiliate, general partner, ar pa~u~ership pending in this District.
Type of Debtor (Check all boxes that apply)
[] Individual(s) [] Railroad
[] Corporation [] Stockbroker
[] Partnership [] Commod~ Broker
[] Other [] Clearing Bank
Nature of Debts (Check one box)
[,~ Consumer/Non-Business ~/'Business
Chapter 11 Small Business (Check all boxes that apply)
[] Debtor is a small business as defined by 11 U.S.C. Sec. 101.
[] Debtor is & elects to be considered a small business under
11 U.S.C. § 1121(e)(Optional)
Chapter or Section of Bankruptcy Code Under Which
fire Petition is Flied (Check one box)
[] Chapter 7 [] Chapter 11 [] Chapter 13
[] Chapter9 [] Chapter 12
[] Section 304 - Case anctllary to foreign proceeding
Filing Fee (Check one box)
[] Full Filing Fee affacbed
[] Filing Fee to be paid in installments (Applicable to individuals only)
Must attach signed application for the ceud's consideration
certifying that the debtor is unable to pay fee except in installments.
Rule 1006(b). See Official Form 3.
$[,,i;~ilcallAdministrative Information (Estimates only)
[] Debtor estimates that funds will be available for distribution to unsecured creditors.
[] Debtor estimates that. after any exempt pruperty is excluded and administrative expenses are paid,
there will be no funds available for distribution to unsecured creditors.
Estimated Number of Creditors 1-15 16-49 50-99 lO0-199 200-999 1DSo-Over
[] [] [] [] [] []
Estimated Assets
$0 to $50,001 to $100,D0~ to $500,001 to 1~000,001 to $10,000,001 to $50,000,00t to More than
[] [] [] [] [] [] [] []
Estimated Debts
[] [] [] [] [] [] [] []
Computer software provided by LegalPRO Systems, Inc., San Antenio, Texas (210) 56~.5300, Copyright ~996-2003 (Build ~12.0.77,
THIS SPACE IS FOR COURT USE ONLY
} ?. . :
ID 2249725g ~ 2)
Official Form 1)
FORM B1, Page 2
Voluntary Petition (page 2) N.r~of~tor(=): Colleen E. Dorsey
(This page must be completed and filed in every case)
', i.,~;.~ i,i~!;I ~ ~ r.~ .~: ~no~ Ba ~p~y Casa(s) Filed Within La~t.6~eam. :(if rno~e ~an:~; a~a~ ~ ~n~! ~):i ::~::: i ~
?, Pa. ndlr~g:.Bao k~p~:: Case(s ): ~lled :by:any;:Spou~; pa rt~e~ 0r Affl!!a;ie:~f this
Signature(s) of Debtor(s) (h~dividual/Joint)
I declare unde~ genait'/of Fe~uly that the information pro~ded in this petition is
X
Telephone Number (if not represented by an attorney)
Date
Signature of Attorney
(.-)Bar Nc,.
Deborah A. Hughes, E~quire
2080 Li~gtestown Road, Ste 106
P.O. Box 961
Harrisburg, Pa 17108
Phone No.(717) 651-1772
Date
Fax No,(717) 651-1778
Signature of Debtor (Corporation/Partnership)
I declare under penalty of pe~ up/that the infomlaao n provided tn this pat~tion is
~e and correct, and that I ha~e been authorized to fie this pefibon on behalf of
the debtor.
The debtor requests relief ~ accordance with the chapter of litle 11, United States
Code. speci~ed in this pet~ion.
X
Pdnted Name of Authorized individual
Title of Authorized Individual
Date
Exhibit A
(To b~ completed it debtor is required to file pedodJc reports (e.g. forms 10K and '
10Q) wl~h the Securiites and Exchange CDmrnlsslen pursuant to Section 13 or 15{d)
of the Securities Exchange Act of 1934 and is red ueat~g r~ef under chapter 1 ~ )
[] Exhibit A is attached and made a paA of this petition
Exhibit B
(To be completed if debtor is ~n individua~ whose debts are primari¥ consumer
debts) ], lhe attorney for the pe*itloner named i~ [he foregoimg psti~n, declare
that I have informed [he petitioner named in the foregoing patltian that [he or she]
may proceed u~er chapter 7, 11, 12, or 13 of ~e 11, United States Code, and
have expleineb [he relief available under each such chapter
X
Date
Exhibit C
Does the debtor own or have possession of any property [hat poses or )s aIleged to
[] Yes;-and Exhibit C is attached-and made a-part of this petition.
[] No
Signature of Non-Attorney Petition Preparer
Pdnted Name of Bankruptcy Petition Preparer
Social Security Number
Address
X
Signature of Bankruptcy Petition Preparer
Date
A bankru pfoy petition prepare['s failure to compty W~h the provisions of title 11
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CERTIFICATE OF SERVICE
AND NOW, this :2,/fL day of December 2003, the undersigned does hereby certify that a copy of the
foregoing document was served upon the other parties of record in the following manner:
By Hand and By First Class U.S. Mail tn'
Kimberly M. Colonna, Esquire
McNEES, WALLACE & NURICK, LLC
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
JOHNSON, DUFF,,IE, STEWART & WEIDNER
By: [~rk C. Duffle /'1/
Attorney I.D. N~ 7~5906