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HomeMy WebLinkAbout02-0140CAFFREY AUTO SUPPLY, INC., d/b/a COUNTRY AUTO SALES, Plaintiff KENNETH HARTZELL and STEVEN KUZO, Defendants : IN THE COURT OF COMMON PLEAS : : CUMBERLAND COUNTY, PENNSYLVANIA :NO. 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 warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiffs. 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. COURT ADMINISTRATOR 4th FLOOR CUMBERLAND COUNTY COURTHOUSE CARLISLE, PA 17013 NOTICIA 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 notification. 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 torte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la petition de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABA JO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. COURT ADMINISTRATOR 4th FLOOR CUMBERLAND COUNTY COURTHOUSE CARLISLE, PA 17013 CAFFREY AUTO SUPPLY, INC., d/b/a COUNTRY AUTO SALES, Plaintiff Vo KENNETH HARTZELL and STEVEN KUZO, Defendants : IN THE COURT OF COMMON PLEAS : : CUMBERLAND COUNTY, PENNSYLVANIA : NO. : COMPLAINT Plaintiff, Caffrey Auto Supply, Inc. d/b/a Country Auto Sales, by and through it counsel, Buchanan Ingersoll Professional Corporation, files this Complaint against Kenneth Hartzell and Steven Kuzo as follows: I. PARTIES 1. Caffrey Auto Supply, Inc., d/b/a Country Auto Sales ("Country Auto Sales"), is a Pennsylvania corporation with a principal address of 110 Sporting Hill Road, Mechanicsburg, Cumberland County, Pennsylvania. 2. Kenneth Hartzell ("Hartzell") is an adult individual residing at 3853 Laraby Drive, Harrisburg, Dauphin County, Pennsylvania. 3. Steven Kuzo ("Kuzo") is an adult individual residing at 6347 Stanford Court, Mechanicsburg, Cumberland County, Pennsylvania. II. BACKGROUND Plaintiff incorporates by reference Paragraphs 1 through 3 as if more fully set forth herein. o Pennsylvania. 6. Country Auto Sales is a used car dealer licensed by the Commonwealth of Defendants Hartzell and Kuzo were dealer salespersons employed by Country Auto Sales to manage Country Auto Sales and to purchase and sell used motor vehicles for Country Auto Sales. 7. Defendants Hartzell and Kuzo were responsible for maintaining the books and records of Country Auto Sales and providing the shareholders of Country Auto Sales with a complete accounting on a monthly basis. 8. As part of their employment compensation package, Country Auto Sales paid Defendants Hartzell and Kuzo 80% of the net profit margin as a commission on each used motor vehicle sold. 9. As part of the requirements of the Board of Vehicles Act, a used automobile salesperson may only work for one automobile dealer at a time and, accordingly, may only buy or sell motor vehicles for one automobile dealer at a time. 63 P.S. § 818.5(c)(1). 10. Accordingly, the only vehicles that Hartzell and Kuzo were authorized to sell under Pennsylvania law were those vehicles sold by and through Country Auto Sales for Country Auto Sales. COUNT I - BREACH OF CONTRACT 11. Plaintiff incorporates herein by reference paragraphs 1 through 10 of this Complaint as if more fully set forth herein. 12. Defendants Hartzell and Kuzo failed to account to Country Auto Sales for all the used motor vehicles bought and/or sold while employed by Country Auto Sales thereby depriving Country Auto Sales of its 20% interest in the net profit margin for those unaccounted vehicles. 13. Defendants Hartzell and Kuzo failed to provide an accounting to Country Auto Sales on a monthly basis. 14. The failure of Defendants Hartzell and Kuzo to account to Country Auto Sales for the sale of any motor vehicle constitutes a material breach of their employment agreement. 15. The material breach of the employment agreement by Defendants Hartzell and Kuzo has damaged Country Auto Sales in an amount to be proven at trial, but in excess of the mandatory arbitration limits. WHEREFORE, Country Auto Sales demands judgment in its favor and against Kenneth Hartzell and Steven Kuzo in an amount to be determined at trial, but in excess of the mandatory arbitration limits of the Cumberland County Court of Common Pleas and such other relief as this Court may deem just and appropriate. COUNT II ~ FRAUD 16. Plaintiff incorporates herein by reference paragraphs 1 through 15 of this Complaint as if more fully set forth herein. 17. Defendants Hartzell and Kuzo deliberately and intentionally sold motor vehicles while employed by Country Auto Sales without accounting for those vehicles to Country Auto Sales. 18. Defendants Hartzell and Kuzo deliberately and intentionally sold motor vehicles while employed by Country Auto Sales without paying Country Auto Sales its 20 % of the profit margin. 19. Defendants Hartzell and Kuzo deliberately and intentionally represented that certain motor vehicles were inventory of Country Auto Sales when those vehicles had been sold and the profits kept solely by Defendants Hartzell and Kuzo. 20. For the periods when Defendants Hartzell and Kuzo did provide the required accounting, Defendants Hartzell and Kuzo deliberately and intentionally provided false and or misleading inventory and accounts to Country Auto Sales. 21. Country Auto Sales relied upon the false and misleading representations, accounts and inventory provided by Defendants Hartzell and Kuzo to its detriment. 22. Country Auto Sales has been damaged as a result of Defendants Hartzell and Kuzo making false and misleading representations, accounts and inventory. 23. Defendants Hartzell and Kuzo acted wantonly and recklessly in making false and misleading representations, accounts and inventory. WHEREFORE, Country Auto Sales demands judgment in its favor and against Kenneth Hartzell and Steven Kuzo in an amount to be determined at trial, but in excess of the mandatory arbitration limits of the Cumberland County Court of Common Pleas and such other relief as this Court may deem just and appropriate including punitive damages, attorneys fees and costs. COUNT III - CONVERSION 24. Plaintiff incorporates herein by reference paragraphs 1 through 23 of this Complaint as if more fully set forth herein. 25. Plaintiff Country Auto Sales had a current possessory interest in all of its inventory (used motor vehicles) and books and records at the time Defendants Hartzell and Kuzo took them for their own use. 26. Defendants Hartzell and Kuzo deliberately and intentionally converted used motor vehicles and books and records of Country Auto Sales for their own use and without justification or compensation. 27. Country Auto Sales has been damaged as a result of Defendants Hartzell and Kuzo converting used motor vehicles and books and records of Country Auto Sales for their own use and without justification or compensation. 28. Defendants Hartzell and Kuzo acted wantonly and recklessly in converting used motor vehicles and books and records of Country Auto Sales for their own use and without justification or compensation. WHEREFORE, Country Auto Sales demands judgment in its favor and against Kenneth Hartzell and Steven Kuzo in an amount to be determined at trial, but in excess of the mandatory arbitration limits of the Cumberland County Court of Common Pleas and such other relief as this Court may deem just and appropriate including punitive damages, attorneys fees and costs. BUCHANAN INGERSOLL PROFESSIONAL CORPORATION l(;~t~ev3 ~. Browndo~, l~squire I.D. #81915 One South Market Square 213 Market Street - 3rd Floor Harrisburg, PA 17101 (717)237-4800 I, Kenrteth Caffrey, have mad thc foregoing docum~at ~nd v¢[ify that the facts a~t forth a~o t~u¢ and co.ct to thc b~st of mY ~owtcdgc, i~fo~atioa ~d belief. To th~ exist ~at ~e foregoing doc~cnt ~or i~ l~Se is that of co~sel, I have reacd upon co~t tn m~ng this Verification. I tmclcrstand that any fals~ statements made hot-in ,are subject to thc penalties of 18 Pa. C.$.A- § 4904, relating to unaworn falsification to authorities. CAFREY AUTO SUPPLY INC. d/b/a COUNTRY AUTO SALES, Plaintiff KENNETH HARTZELL and STEVEN KUZO, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 02-140 .. .. : CIVIL ACTION - AT LAW . PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the undersigned's appearance on behalf of the Defendant, Kenneth Hartzel[, with regard to the above-captioned matter. Respectfully submitted, NEALON & GOVER, P.C. Date: By: Attorney I.D No. 85948 2411 North Front Street Harrisburg, PA 17110 (717) 232-9900 Co-Counsel for Defendant Kenneth Hartzell CERTIFICATE OF SERVICE AND NOW, this 11th day of February, 2002, I hereby certify that I have served the foregoing PRAEClPE FOR ENTRY OF APPEARANCE on the following by depositing a true and correct copy of same in the United States mail, postage prepaid, addressed to: Matthew C. Browndorf, Esquire Buchanan Ingersoll Professional Corporation One South Market Square 213 Market St., 3rd Floor Harrisburg, PA 17101 Steven Kuzo 6347 Stanford Ct. Mechanicsburg, PA 17055 Eileen S Smith, Secre ary CAFREY AUTO SUPPLY INC. d/b/a COUNTRY AUTO SALES, Plaintiff KENNETH HARTZELL and STEVEN KUZO, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 02-140 . : CIVIL ACTION - AT LAW .. : PRELIMINARY OBJECTIONS OF DEFENDANT KENNETH HARTZELLTO PLAINTIFFS' COMPLAINT TO THE HONORABLE JUDGES OF SAID COURT: AND NOW, this 11th day of February, 2002, comes Defendant Kenneth Hartzell and files this Motion for Preliminary Objections made pursuant to Pa.R.C.P. 1028, and avers the following: 1. This matter was commenced by the filing of a Complaint on January 10, 2002. A true and correct copy of the Complaint is attached as Exhibit "A." 2. The original Complaint was served on Defendant Kenneth Hartzell on or about January 22, 2002. I. FAILURE TO STATE SPECIFICALLY IF THE AGREEMENT BETWEEN THE PARTIES WAS WRITTEN OR ORAl. 3. Defendant Hartzell incorporates by reference paragraphs 1 through 2 as if more fully set forth herein. 4. Plaintiff alleges that defendant Hartzell in some way breached a contract with Country Auto Sales. 5. Pa.R.C.P. 1019(h) provides: "By any claim or defense based upon an agreement, the pleading shall state specifically if the agreement is oral or written." 6. Plaintiffs' Complaint fails to state whether this contract was written or oral, and, if the agreement was written, failed to attach a copy of the writing or agreement pursuant to Pa.R.C.P. 1019(i). WHEREFORE, for the above-mentioned reasons, Defendant Hartzell requests that this Honorable Court dismiss the Complaint against him. II, FAILURE OF THE COMPLAINT TO CONFORM TO LAW OR RULE OF COURT PURSUANT TO PA.R.C.P. 1019(F). 7. Defendant Hartzell incorporates by reference paragraphs 1 through 6 as if more fuJly set forth herein. 8. Pa.R.C.P. 1019(f) provides that "averments of time, place and items of special damage shall be specifically stated." 9. Nowhere in the Complaint does Plaintiff provide a time and date that Defendant Hartzell allegedly committed these acts as described in plaintiff's complaint. WHEREFORE, Defendant Hartzell respectfully requests this Honorable Court to dismiss the complaint with prejudice. III. FAILURE TO PLEAD FRUAD WITH SPECIFICITY PURSUANT TO PA.R.C.P. 1019(b). 10. Defendant Hartzell incorporates by reference paragraphs 1 through 9 as if fully set forth. 11. Pa.R.C.P 1019(b) provides "Averments of fraud or mistake shall be averred with particularity." 12. Count II of the complaint alleges that both defendants, in some way, deliberately and intentionally sold motor vehicles while employed by Country Auto Sales without accounting for those vehicles to Country Auto Sales. 13. Paragraphs 17 and 18 of the complaint allege that Defendant Hartzell and the other defendant sold vehicles while employed by Country Auto Sales without accounting for these vehicles and not paying Country Auto Sales a 20% profit. 14. Nowhere in the complaint does plaintiff state the number of vehicles, the type of vehicles or to whom these vehicles were sold to, nor does plaintiff state any evidence to which substantiates these accusations. 15. Plaintiff also contends in paragraph 19 that some vehicles were inventory of Country Auto Sales when these vehicles were sold and the profits were kept by both defendants. 16. Nowhere in the complaint does plaintiff provide any information in regards to these vehicles in any way, such as make, model or serial number. WHEREFORE, Defendant requests that this Honorable Court require the plaintiff to plead the allegation of fraud with specificity. By: Respectfully submitted, NEALON & GOVER, P.C. Brim N. Zulli~e Attorney I.D No. 85948 2411 North Front Street Harrisburg, PA 17110 (717) 232-9900 Co-Counsel for Defendant Kenneth Hartzell Exhibit A ~/'/ CAFFREY AUTO SUPPLY, INC., d/b/a COUNTRY AUTO SALES, Plaintiff KENNETH HARTZELL and STEVEN KUZO, Defendants : 1N THE COURT OF COMMON PLEAS : : CUMBERLAND COUNTY, PENNSYLVANIA NO. 02- lq0 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 warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiffs. 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. . COURT ADMINISTRATOR 4th FLOOR CUMBERLAND COUNTY COURTHOUSE CARLISLE, PA 17013 .NOTICIA 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 notification. Usted debe presentar una aparieneia escrita o en persona o por abogado y archivar en la corte en forma eserita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la cone tomara medidas y puede entrar una orden contra usted sin previo aviso o notiflcacion y por cualquier queja o alivio que es pedido en la petition de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. FROM, LLEVE ESTA DEMANDA A UN ABODAGO 1NMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. . . COURT ADMINISTRATOR 4th FLOOR CUMBERLAND COUNTY COURTHOUSE CARLISLE, PA 17013 2 CAFFREY AUTO SUPPLY, INC., d/b/a COUNTRY AUTO SALES, Plaintiff KENNETH HARTZELL and STEVEN KUZO, Defendants : iN THE COURT OF COMIMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. : COMPLAINT Plaintiff, Caffrey Auto Supply, Inc. d/b/a Country Auto Sales, by and through it counsel, Buchanan Ingersoll Professional Corporation, files this Complaint against Kenneth Hartzell and Steven Kuzo as follows: I. PARTIES 1. Caffrey Auto Supply, Inc., d/b/a Country Auto Sales ("Country Auto Sales"), is a Pennsylvania corporation with a principal address of 110 Sporting Hill Road, Mechanicsburg' Cumberland County, Pennsylvania. 2. Kenneth Hartzell ("Hartzell") is an adult individual residing at 3853 Laraby Drive, Harrisburg, Dauphin County, Pennsylvania. 3. Steven Kuzo ("Kuzo") is an adult individual residing at 6347 Stanford Court, Mechanicsburg, Cumberland County, Pennsylvania. forth herein. II. BACKGROUND Plaintiffincorporates by reference Paragraphs 1 through 3 as if more fully set Pennsylvania. 6. Country Auto Sales is a used car dealer licensed by the Commonwealth of Defendants Hartzell and Kuzo were dealer salespersons employed by Country Auto Sales to manage Country Auto Sales and to purchase and sell used motor vehicles for Country Auto Sales. 7. Defendants Hartzell and Kuzo were responsible for maintaining the books and records of Country Auto Sales and providing the shareholders of Country Auto Sales with a complete accounting on a monthly basis. 8. As part of their employment compensation package, Country Auto Sales paid Defendants Hartzell and Kuzo 80% of the net profit margin as a commission on each used motor vehicle sold. 9. 'As part of the requirements of the Board of Vehicles Act, a used automobile salesperson may only work for one automobile dealer at a time and, accordingly, may only buy or sell motor vehicles for one automobile dealer at a time. 63 P.S. § 818.5(c)(1). 10. Accordingly, the only vehicles !hat Hartzell and Kuzo were authorized to sell under Pennsylvania law were those vehicles sold by and through Country Auto Sales for Country Auto Sales. COUNT I - BREACH OF CONTRACT 11. Plaintiffincorporates herein by reference paragraphs 1 through 10 of this' Complaint as if more fully set forth herein. 12. Defendants Hartzell and Kuzo failed to account to Country Auto Sales for all the used motor vehicles bought and/or sold while employed by Country Auto Sales thereby depriving Country Auto Sales of its 20% interest in the net profit margin for those unaccounted vehicles. 2 13. Defendants Hartzell and Kuzo failed to provide an accounting to Country Auto Sales on a monthly basis. 14. The failure ofDefendants. Hartzeil and Kuzo to account to Country Auto Sales for the sale of any motor vehicle constitutes a material breach of their employment agreement. 15. The material breach of the employment agreement by Defendants Hartzell and · Kuzo has damaged Country Auto Sales in an amount to be proven at trial, but in excess of the mandatory arbitration limits. WHEREFORE, Country Auto Sales demands judgment in its favor and against Kenneth Hartzell and Steven Kuzo in an amount to be determined at trial, but in excess of the mandatory arbitration limits of the Cumberland County Court of Common Pleas and such other relief as this 'Court may deem just and appropriate. COUNT II - FRAUD 16. Plaintiff incorporates herein by reference paragraphs 1 through 15 of this Complaint as if more fully set forth herein. 17. Defendants Hartzell and Kuzo deliberately and intentionally sold motor vehicles while employed by Country Auto Sales without accounting for those vehicles to Country Auto Sales. 18. Defendants Hartzell and Kuzo deliberately and intentionally sold motor vehicles while employed by Count~ Auto Sales without paying Country Auto Sales its 20 % of the profit margin. 19. Defendants Har/zell and Kuzo deliberately and intentionally represented that certain motor vehicles were inventory of Country Auto Sales when those vehicles had been sold and the profits kept solely by Defendants Hartzell and Kuzo. 20. For the periods when Defendants Hartzell and Kuzo did provide the required accounting, Defendants Hartzell and Kuzo deliberately and intentionally provided false and or misleading inventory and accounts to C(~unt~y Auto Sales. 21. Country Auto Sales relied upon the false and misleading representations, accounts and inventory provided by Defendants Hartzell and Kuzo to its detriment. 22. C°untry Auto Sales has been damaged as a result of Defendants Hartzell and Kuzo making false and misleading representations, accounts and inventory. 23. Defendants Hartzell and Kuzo acted wantonly and recklessly in making false and misleading representations, accounts and inventory. WHEREFORE, Country Auto Sales demands judgment in its favor and against Kenneth Hartzell and Steven Kuzo in an amount to be determined at trial, but in excess of the mandato.ry arbitration limits of the Cumberland County Court of Common Pleas and such other relief as this Court may deem just and appropriate including punitive damages, attorneys fees and costs. COUNT III - CONVERSION 24. Plaintiff incorporates herein by reference paragraphs 1 through 23 of this Complaint as if more fully set forth herein. 25. Plaintiff Country Auto Sales had a current possessory interest in all of its inventory (used motor vehicles) and books and records at the time Defendants Hartzell and Kuzo took them for their own use. 26. Defendants Hartzell and Kuzo deliberately and intentionally converted used motor vehicles and books and records of Country Auto Sales for their own use and without justification or compensation. 4 27. Country Auto Sales has been damaged as a result of Defendants Hartzell and Kuzo converting used motor vehicles and books and records of Country Auto Sales for their own use and without justification or compen.sa, tion 28. Defendants Hartzell and Kuzo acted wantonly and recklessly in converting used motor vehicles and books and records of Country Auto Sales for their own use and without justification or compensation. WHEREFORE, Country Auto Sales demands judgment in its favor and against Kenneth Hartzell and Steven Kuzo in an amount to be determined at trial, but in excess of the mandatory arbitration limits of the Cumberland coUnty Court of'Common Pleas and such other relief as this Court may deem just and appropriate including punitive damages, attorneys fees and costs. DATE: BUCHANAN INGERSOLL PROFESSIONAL CORPORATION atthew C. Browndorf, Esquire I.D. #81915 One South Market Square 213 Market Street - 3rd Floor Harrisburg, PA 17101 (717)237-4800 'VERIFICATION I, Kenneth Caff~ey, have re~ thc for~.goin$ document ~nd verify that the f'act$ set forth arc t~u¢ and correct to thc best of my knowledge, information ~nd belief. 'fo the extent that the foregoing document ancot it~ language is that of counsel, I have relied upon counsel in m~king this Verification. I undc~tand that any f'abe statements made herein are subject to the p~n~ltics cf 18 Pa. C.S.A. § ~.904. relating to un~Wom falsification to author{tics. eth C ey ': CERTIFICATE OF SERVICE AND NOW, this 11th day of February, 2002, I hereby certify that I have served the foregoing Preliminary Objections of Defendant Kenneth Hartzell to Plaintiffs' Complaint on the following by depositing a true and correct copy of same in the United States mail, postage prepaid, addressed to: Matthew C. Browndorf, Esquire Buchanan Ingersoll Professional Corporation One South Market Square 213 Market St., 3rd Floor Harrisburg, PA 17101 Steven Kuzo 6347 Stanford Ct. Mechanicsburg, PA 17055 Eileen S. Smith, Secretary PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please ]ist the with_in matter for the next Arg~nent Court. CAPTION OF CASE (entire caption n~st be stated in ~,ll) CAFFREY AUTO SUPPLY, INC., d/b/a COUNTRY AUTO SALES, KENNETH HARTZELL AND STEVEN KUZO, (Plaintiff) ( Deferment ) No. 02-140 Civil X]~ 2002 State matter to be argued (i.e., plm~ntiff's motion for new trial, defendant's de~urrer to complm4nt, etc.): Defendant Kenneth Hartzell's Preliminary Objections to Plaintiff's Complaint 2. Identify counsel who will argue case: (a) for plaintiff: (b) for defem~nt: ;m4~ss: Matthew C. Browndorf, Esquire Buchanan Ingersoll 213 Market Street, Third Floor Harrisburg, PA 17101 Brian N. Zulli, Esquire 2411 North Front Street Harrisburg, PA 17110 I will notify all parties in writingwithin tmudays that tb/s case)ms been il-ted for ~t. 4. Arg~nent Court Date: March 27, 2002 Dated: February 27, 2002 CERTIFICATE OF SERVICE I, Matthew C. Browndorf, Esquire, certify that I have this date, served a copy of the foregoing document upon the following by United States mail, first class, postage pre-paid as follows: Brian N. Zulli, Esquire 2411 North Front Street Harrisburg, PA 17110 John R. Fenstermacher, Esquire The Jonas Rupp House 5115 East Trindle Road Mechauicsburg, PA 17050 DATE: February 27, 2002 CAFFREY AUTO SUPPLY INC. d/b/a COUNTRY AUTO SALES, Plaintiff KENNETH HARTZELL and STEVEN KUZO, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : DOCKET NO. 02-140 : CIVIL ACTION - AT LAW DEFENDANT STEVEN KUZO'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW COMES THE DEFENDANT, Steven Kuzo, by and through his attorney, the Office of Fenstermacher and Associates, P.C. and makes the following Preliminary Objections to Plaintiff's Complaint. I. Demurrer r(Pa.R.C.P. 1028 (a)(2)] on Count 1 1. Pa.R.C.P. 10199(h) requires that a contract claim is based upon an agreement and the pleading shall state specifically if the Agreement was written or oral. 2. Count I Plaintiff's Complaint alleges breach of contract by Defendants. 3. Plaintiff's Complaint neither references whether the Contract was oral or in writing and further, if it is in writing, fails to attach a copy of that writing as is required under Pa.R.C.P 1019(i). WHEREFORE, Defendant respectfully requests that the Honorable Court dismiss Count I of the Plaintiff's Complaint. II. Preliminaw Objection in the Nature of Insufficient Specificity of Pleadino rPA.R.C.P. 1028(a}(3}! Counts I, II and III 4. Paragraphs 1 through 3 are incorporated fully herein by reference. 5. Pa.R.C.P. 1028 (a)(3) requires that averments of time, place and special damages must be specific. Further, it requires that averments of fraud or mistake must be particular. 6. In Counts I, II and III of the Plaintiffs Complaint, there are no such averments of time, place and/or specificity of damages. 7. As to the fraud Count, the alleged allegations of fraud are so non specific that it is impossible for Defendant to properly respond to the pleading as currently constituted. Pa.R.C.P. 1019(f). THEREFORE, Defendant requests this Honorable Court to dismiss the Counts I, II and Ill or alternatively require Plaintiff.to amend such counts with sufficient specificity to satisfy the requirements of Pa.R.C.P. 1028 (a)(3). III. Preliminary Objection in the Nature of Motion to Strike Request for Punitive Damages (Counts II and III) 8. Paragraphs 1 through 7 are incorporated fully herein by reference. 9. Plaintiffs assert a claim in Counts II and III for punitive damages. 10. Under Counts II and III, Defendants have failed to state specifically claims which would give rise to the imposition of punitive damages. THEREFORE, Plaintiff respectfully requests this Honorable Court to strike the request for punitive damages from Counts II and III. IV. Preliminary Objection in Nature if a Motion to Strike Request for Attorney's Fees 11. Paragraphs 1 through 10 are incorporated fully herein by reference. 12. Defendants assert in Counts II and III claims for attorney's fees. 13. Defendants have failed to set forth any basis for recovery of legal fees which is recognized in the Courts of the Commonwealth of Pennsylvania. WHEREFORE, Plaintiff respectfully requests this Honorable Court strike the request for attorney's fees contained in Counts II and II of the Complaint. Respectfully submitted, FENSTERMACHER AND ASSOCIATES, P.C. DATED: March 5, 2002 Jdhn R. Fenstermacher, Esquire x,,~preme Court I.D. #29940 Mark K. Emery, Esquire Supreme Court I.D. #72787 5115 East Trindle Road Mechancisburg, PA 17050 (717) 691-5400 Attorney for Defendant VERIFICATION I, Steven Kuzo, hereby certify and verify that the facts set forth in the foregoing Preliminary Objections of Defendant Steven Kuzo to Plaintiff's Complaint are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are subject to the penalties of 18 Pa. C. S. §4904 relating to unsworn falsification to authorities. DATE: Steven Kuzo ~J~' CERTIFICATE OF SERVICE AND NOW, on this 5th day of March, 2002, I, John R. Fenstermacher, Esquire, hereby certi~ that I have served the foregoing Defendant Steven Kuzo's Preliminary Objections to Plaintiff's Complaint by mailing a true and correct copy by United States first class mail, addressed as follows: Brian N. Zulli, Esquire Nealon & Gover, P.C. 2411 North Front Street Harrisburg, PA 17110 and Matthew C. Browndorf, Esquire Buchanan Ingersoll Professional Corporation One South Market Square 213 Market Street-3~d Floor Harrisburg, PA 17101 John R. Fenstermacher PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and sukmitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please listthewithinmatterforthe next Arc3u~nentCourt. CAPTION OF CASE (entire caption must be stated in ~l]]) CAPFREY AUTO SUPPLY, INC., d/b/a COUNTRY AUTO~!SALES, KENNETH HARTZELL AND STEVEN KUZO, ( pi aintiff ) ( Defendant ) No. 02-140 Civil Y!~ 2002 1. State matter tobe argued (i.e., plaintiff's motion for newt rial, defendant's d~muzzer to ccraplmi~t, etc.): Defendant Steven Kuzo's Preliminary Objections to Plaintiff's Complaint 2. Identify counsel who w~]] argue case: (a) for pi ~ ntiff: ~aa~ess: (b) for defendant: ~r~ess: Matthew C. Browndorf, Esquire Buchanan Ingersoll 213 Market Street, Third Floor Harrisburg, PA 17101 John R. Fenstermacher, Esquire 5115 East Trindle Road Mechanicsburg, PA 17050 3. I will notify all parties in writingwithin two days that this case has been listed for ~t. 4. ~t Court Date: March 27, 2002 March 7, 2002 CERTIFICATE OF SERVICE I, Matthew C. Browndorf, Esquire, certify that I have this date, served a copy of the foregoing document upon the following by United States mail, first class, postage pre-paid as follows: John Fenstermacher, Esquire 5115 East Trindle Road Mechanicsburg, PA 17050 Brian Zulli, Esquire Nealon & Gover, P.C. 2411 North Front Street Harrisburg, PA 17110 DATE: March 7, 2002 CAFREY AUTO SUPPLY INC. d/b/a COUNTY AUTO SALES, Plaintiff V. KENNETH HARTZELL and STEVEN KUZO, Respondent IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-140 CIVIL ACTION - AT LAW PRAEC1PE OF APPEARANCE TO THE PROTHONOTARY: Please enter my appearance as co-counsel on behalf of Respondent, Kenneth Har~zell. Kindly serve copies of all papers filed in this matter on me at the address appearing below. · ip L. Zulli, Esquire Attorney Id No. 47499 1501 North Front Street Harrisburg, Pennsylvania 17102 (717)238-9004 CAFREY AUTO SUPPLY INC. d/b/a COUNTY AUTO SALES, Plaintiff KENNETH HARTZELL and STEVEN KUZO, R~spondcnt IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-140 CIVIL ACTION - AT LAW CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the PRAECIPE OF APPEARANCE upon the persons, and in the manner, indicated below, which satisfies the requiremems of the Pennsylvania Rules of Civil Procedure, by depositing a copy of the same in the United States Mail, postage prepaid, addressed to: John R. Fenstermacher, Esquire 5115 E. Trindle Road Mechanicsburg, PA 17050-3624 (Counsel for Steven Kuzo) Matthew C. Browndorf, Esquire Buchanan Ingersoll Professional Corp. One South Market Square 213 Market St., 34 Floor Harrisburg, PA 17101 (Counsel for Plaintiff) DATE: March 1 I, 2002 Brian N. Zulli, Esquire Nealon & Grover, P.C. 2411 North Front Street Harrisburg, PA 17110 (Co-Counsel for Defendant Keunth Hartzell) Philip L. Zulli, Esquire Altorney Id No. 47499 1501 North Front Street Harrisburg, Pennsylvania 17102 (717)238-9004 CAFFREY AUTO SUPPLY, 1NC., clPo/a COUNTRY AUTO SALES, Plaintiff KENNETH HARTZELL and STEVEN KUZO, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-140 CIVIL TERM 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 warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiffs. 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. COURT ADMINISTRATOR 4th FLOOR CUMBERLAND COUNTY COURTHOUSE CARLISLE, PA 17013 NOTICIA 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 o 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 INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABA JO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. COURT ADMINISTRATOR 4th FLOOR CUMBERLAND COUNTY COURTHOUSE CARLISLE, PA 17013 2 CAFFREY AUTO SUPPLY, 1NC., dgo/a COUNTRY AUTO SALES, Plaintiff KENNETH HARTZELL and STEVEN KUZO, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-140 CIVIL TERM AMENDED COMPLAINT Plaintiff, Caffrey Auto Supply, Inc. d/b/a Country Auto Sales, by and through it counsel, Buchanan Ingersoll Professional Corporation, files this Complaint against Kenneth Hartzell and Steven Kuzo as follows: I. PARTIES 1. Caffrey Auto Supply, Inc., d/b/a Country Auto Sales ("Country Auto Sales"), is a Pennsylvania corporation with a principal address of 110 Sporting Hill Road, Mechanicsburg, Cumberland County, Pennsylvania. 2. Kenneth Hartzell ("Hartzell") is an adult individual residing at 3853 Laraby Drive, Harrisburg, Dauphin County, Pennsylvania. 3. Steven Kuzo ("Kuzo") is an adult individual residing at 6347 Stanford Court, Mechanicsburg, Cumberland County, Pennsylvania. II. BACKGROUND Plaintiff incorporates by reference Paragraphs 1 through 3 as if more fully set forth herein. Pennsylvania. 6. Country Auto Sales is a used car dealer licensed by the Commonwealth of Defendants Hartzell and Kuzo were dealer salespersons employed by Country Auto Sales to manage Country Auto Sales and to purchase and sell used motor vehicles for Country Auto Sales. The employment relationship between Country Auto Sales and Defendants was oral. 7. Defendants Hartzell and Kuzo were responsible for maintaining the books and records of Country Auto Sales and providing the shareholders of Country Auto Sales with a complete accounting on a monthly basis. 8. As part of their employment compensation package, Country Auto Sales paid Defendants Hartzell and Kuzo 80% of the net profit margin as a commission on each used motor vehicle sold. 9. As part of the requirements of the Board of Vehicles Act, a used automobile salesperson may only work for one automobile dealer at a time and, accordingly, may only buy or sell motor vehicles for one automobile dealer at a time. 63 P.S. § 818.5(c)(1). 10. Accordingly, the only vehicles that Hartzell and Kuzo were authorized to sell under Pennsylvania law were those vehicles sold by and through Country Auto Sales for Country Auto Sales. COUNT I - BREACH OF CONTRACT 11. Plaintiff incorporates herein by reference paragraphs 1 through 10 of this Complaint as if more fully set forth herein. 12. Defendants Hartzell and Kuzo failed to account to Country Auto Sales for all the used motor vehicles bought and/or sold while employed by Country Auto Sales thereby 2 depriving Country Auto Sales of its 20% interest in the net profit margin for those unaccounted vehicles. 13. Defendants Hartzell and Kuzo failed to provide an accounting to Country Auto Sales on a monthly basis. 14. The failure of Defendants Hartzell and Kuzo to account to Country Auto Sales for the sale of any motor vehicle constitutes a material breach of their employment agreement. 15. The material breach of the employment agreement by Defendants Hartzell and Kuzo has damaged Country Auto Sales in an amount to be proven at trial, but in excess of the mandatory arbitration limits. WHEREFORE, Country Auto Sales demands judgment in its favor and against Kenneth Hartzell and Steven Kuzo in an amount to be determined at trial, but in excess of the mandatory arbitration limits of the Cumberland County Court of Common Pleas and such other relief as this Court may deem just and appropriate. COUNT II - FRAUD 16. Plaintiff incorporates herein by reference paragraphs 1 through 15 of this Complaint as if more fully set forth herein. 17. Defendants Hartzell and Kuzo deliberately and intentionally sold motor vehicles while employed by Country Auto Sales without accounting for those vehicles to Country Auto Sales. 18. Defendants Hartzell and Kuzo deliberately and intentionally sold motor vehicles while employed by Country Auto Sales without paying Country Auto Sales its 20 % of the profit margin. 3 19. Defendants Hartzell and Kuzo deliberately and intentionally represented that certain motor vehicles were inventory of Country Auto Sales when those vehicles had been sold and the profits kept solely by Defendants Hartzell and Kuzo. 20. For the periods when Defendants Hartzell and Kuzo did provide the required accounting, Defendants Hartzell and Kuzo deliberately and intentionally provided false and or misleading inventory and accounts to Country Auto Sales. 21. Country Auto Sales relied upon the false and misleading representations, accounts and inventory provided by Defendants Hartzell and Kuzo to its detriment. 22. Country Auto Sales has been damaged as a result of Defendants Hartzell and Kuzo making false and misleading representations, accounts and inventory. 23. Defendants Hartzell and Kuzo acted wantonly and recklessly in making false and misleading representations, accounts and inventory. WHEREFORE, Country Auto Sales demands judgment in its favor and against Kenneth Hartzell and Steven Kuzo in an amount to be determined at trial, but in excess of the mandatory arbitration limits of the Cumberland County Court of Common Pleas and such other relief as this Court may deem just and appropriate. COUNT III - CONVERSION 24. Plaintiff incorporates herein by reference paragraphs 1 through 23 of this Complaint as if more fully set forth herein. 25. Plaintiff Country Auto Sales had a current possessory interest in all of its inventory (used motor vehicles) and books and records at the time Defendants Hartzell and Kuzo took them for their own use. 4 26. Defendants Hartzell and Kuzo deliberately and intentionally converted used motor vehicles and books and records of Country Auto Sales for their own use and without justification or compensation. 27. Country Auto Sales has been damaged as a result of Defendants Hartzell and Kuzo converting used motor vehicles and books and records of Country Auto Sales for their own use and without justification or compensation. 28. Defendants Hartzell and Kuzo acted wantonly and recklessly in converting used motor vehicles and books and records of Country Auto Sales for their own use and without justification or compensation. WHEREFORE, Country Auto Sales demands judgment in its favor and against Kenneth Hartzell and Steven Kuzo in an amount to be determined at trial, but in excess of the mandatory arbitration limits of the Cumberland County Court of Common Pleas and such other relief as this Court may deem just and appropriate. DATE: April 1, 2002 BUCHANAN INGERSOLL PROFESSIONAL CORPORATION ,~el~ffff~ C~. B rox~ndor f, Esquire I.D. #81915 One South Market Square 213 Market Street - 3rd Floor Harrisburg, PA 17101 (717)237-4800 CERTIFICATE OF SERVICE I, Matthew C. Browndorf, Esquire, certify that I have this date, served a copy of the foregoing document upon the following by United States mail, first class, postage pre-paid as follows: John Fenstermacher, Esquire 5115 East Trindle Road Mechanicsburg, PA 17050 Brian Zulli, Esquire Nealon & Gover, P.C. 2411 North Front Street Harrisburg, PA 17110 Phillip Zulli, Esquire 1501 North Front Street Harrisburg, PA 17102 f"~tth~w-C. Br;wndorf DATE: April 1, 2002 CAFFREY AUTO SUPPLY INC. d/b/a COUNTRY AUTO SALES, Plaintiff Vo KENNETH HARTZELL and STEVEN KUZO, Defendants · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · DOCKET NO. 02-140 · CIVIL ACTION - AT LAW 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 entedng a wdtten appearance personally or by attorney and filing in wdting with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE· IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 CAFFREY AUTO SUPPLY INC. d/b/a COUNTRY AUTO SALES, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : DOCKET NO. 02-140 KENNETH HARTZELL and STEVEN KUZO, Defendants : CIVIL ACTION - AT LAW NOTICE TO PLEAD TO: Bdan N. Zulli, Esquire Nealon & Gover, P.C. 2411 North Front Street Harrisburg, PA 17110 and Matthew C. Browndorf, Esquire Buchanan Ingersoll Professional Corporation One South Market Square 213 Market Street- 3rd Floor Harrisburg, PA 17101 YOU ARE HEREBY NOTIFIED 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. Respectfully submitted, FENSTERMACHER AND ASSOCIATES, P.C. Mechanicsburg, PA 17050 (717) 691-5400 Attorney for Defendant DATED: CAFFREY AUTO SUPPLY INC. d/b/a COUNTRY AUTO SALES, Plaintiff KENNETH HARTZELL and STEVEN KUZO, Defendants · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · DOCKET NO. 02-140 · CIVIL ACTION - AT LAW DEFENDANT STEVEN KUZO"S ANSWER, NEW MATTER, AND COUNTERCLAIM TO PLAINTIFF'S AMENDED COMPLAINT AND NOW COMES THE DEFENDANT Steven Kuzo by and through his attorney, the Office of Fenstermacher and Associates, P.C. and hereby answers Plaintiff's Amended Complaint and avers as follows: I. PARTIES 1. Admitted. 2. Admitted. 3. Admitted. II, BACKGROUND 4. Defendant incorporates by reference Paragraphs 1 through 3 as though fully set forth herein. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted in part and denied in part. It is admitted Defendants received 80% of the net profit margin from Country Auto Sales. The averment is denied in that it suggests Defendants received only 80% of the net profit margin without also being responsible for 80% of the costs of operating Country Auto Sales. 9. Denied. The averment is a legal conclusion to which no response is required. 10. Denied. The averment is a legal conclusion to which no response is required. COUNT I - BREACH OF CONTRACT 11. Defendant incorporates by reference Paragraphs 1 through 10 as though fully set forth herein. 12. Denied. Defendant accounted to Plaintiff all vehicles Defendant bought and sold and strict proof thereof is demanded at trial. 13. Denied, Defendant provided accounting to Country Auto Sales on a monthly basis. Denied. The averment is a legal conclusion to which no response is 14. required. 15. Denied. No breach of any employment agreement occurred because there was no employment agreement. As to damage to Country Auto Sales, that information is not with the knowledge of Defendant and stdct proof thereof is demanded at trial. WHEREFORE, Defendant demands that judgment be entered in his favor and against Plaintiff together with costs and any other relief the Court deems appropriate. COUNT II - FRAUD 16. Defendant hereby incorporates by reference Answers to Paragraphs 1 through 15 as though fully set forth herein. 17. Denied. Defendants accounted to Plaintiff regarding all cars purchased by Country Auto Sales. 18. Denied. Defendant paid Plaintiff for all automobiles purchased by Country Auto Sales. 19. Denied. Defendants did not include any vehicles in Country Auto Sales that were not Country Auto Sales inventory. 20. Denied. The inventories and accountings were accurate. 21. The information is not within the knowledge of Defendant and Defendant demands strict proof thereof at trial. 22.The information is not within the knowledge of Defendant and strict proof thereof is demanded at trial. 23. Denied. Defendant did not act wantonly or recklessly or make false and misleading representations, accounts, or inventory. WHEREFORE, Defendant demands that judgment be entered in his favor and against Plaintiff together with costs and any other relief the Court deems appropriate. COUNT III - CONVERSION 24. Defendant incorporates by reference the answers to Paragraphs I through 23 as though fully set forth herein. 25. The averment is a legal conclusion to which no response is required. To the extent a response is required, it is denied. 26. Denied. Defendant did not deliberately or intentionally convert motor vehicles or books or records of Country Auto Sales without justification or compensation. 27. The answer is not within the knowledge of Defendant and strict proof thereof is demanded at trial. 28. Denied. Defendant did not act wantonly or recklessly or convert used motor vehicles or books or records 'of Country Auto Sales for their own use or without justification or compensation. WHEREFORE, Defendant demands that judgment be entered in his favor and against Plaintiff together with costs and any other relief the Court deems appropriate. NEW MATTER 29. Defendant incorporates by reference the answers to Paragraphs 1 through 28 as though fully set forth herein. 30. The action for the amount claimed hereunder is barred by the statute of frauds. 31. The action for the amount claimed hereunder is barred by the statute of limitations. 32. The oral agreement between Plaintiff and Defendants provided for Defendants to be responsible for 80% of the debts of Country Auto Sales and receive 80% of the net profits. 33. The oral agreement between Plaintiff and Defendants provided for Plaintiff to be responsible for 20% of the debts of Country Auto Sales and receive 20% of the net profits. 34. Country Auto Sales incurred a loss of $15,800 by virtue of a bad check written by a New York auto dealer who cannot be found. 35. Defendants paid for 100% of this loss out of their own pockets. 36. Plaintiff, by virtue of having a 20% interest and responsibility in Country Auto Sales, was responsible for 20%, or $3,160.00, of this loss. 37. The loss from liquidation of the inventory of Country Auto Sales totaled $30,000. 38. Defendants paid for 100% of this loss out of their own pockets. 39. Plaintiff, by virtue of having a 20% interest and responsibility in Country Auto Sales, was responsible for 20%, or $6,000.00, of this loss. WHEREFORE, Defendant demands that judgment be entered in his favor and against Plaintiff together with costs and any other relief the Court deems appropriate. COUNTERCLAIM I - BREACH OF CONTRACT Kuzo vs. Caffrey Auto Supply Inc. d/b/a Country Auto Sales AND NOW COMES the Counterclaim Plaintiff and makes the following counterclaim: 40. Defendant (Counterclaim Plaintiff) incorporates by reference the answers to Paragraphs I through 39 as though fully set forth herein. 41. Plaintiff (Counterclaim Defendant) did not pay Defendants (Counterclaim Plaintiff) $3,160.00 towards the cost of the bad check wdtten by the New York dealer. 42. Plaintiff (Counterclaim Defendant) did not pay Defendants (Counterclaim Plaintiffs) $6,000.000 towards the cost of liquidation of Country Auto Sales' assets. 43. In sum, Plaintiff (Counterclaim Defendant) failed to pay Defendants (Counterclaim Plaintiffs) $9,160.00 owed due to operating losses. 44. As Defendants (Counterclaim Plaintiffs) Kenneth Hartzell and Steven Kuzo were individually responsible for half of their joint 80%, Plaintiff (Counterclaim Defendant) owes Defendant (Counterclaim Plaintiff) Steven Kuzo $4,580.00 individually as compensation for the losses Kuzo has sustained. 45. Because Plaintiff (Counterclaim Defendant) was responsible under the oral contract for assuming 20% of the operating losses, and failed to reimburse Defendants (Counterclaim Plaintiffs) for said costs, Plaintiff (Counterclaim Defendant) has breached a material provision of the agreement. WHEREFORE, Defendant (Counterclaim Plaintiff) demands that judgment be entered in his favor and against Plaintiff (Counterclaim Defendant) on the Defendant's (Counterclaim Plaintiff's) counterclaim in the amount of $4,580.00, together with costs and any other relief the Court deems appropriate. COUNTERCLAIM II - UNJUST ENRICHMENT 46. Defendant (Counterclaim Plaintiff) incorporates by reference Paragraphs 1 through 45 as though fully set forth herein. 47. Plaintiff's (Counterclaim Defendant's) failure to properly give Defendants (Counterclaim Plaintiffs) restitution under the contract for operating losses incurred has unjustly enriched Plaintiff (Counterclaim Defendant) at the expense of Defendants (Counterclaim Plaintiffs). 48. Plaintiff's (Counterclaim Defendant's) actions constitute an unjust retention of a benefit to the loss of Defendants (Counterclaim Plaintiffs), and the Plaintiff's (Counterclaim Defendant's) retention of money is against the fundamental principles of justice and good conscience and are patently unfair. 49. As a direct and proximate result of Plaintiff's (Counterclaim Defendant's) unjust enrichment of Defendant's (Counterclaim Plaintiff's) tangible property, Defendant (Counterclaim Plaintiff) has suffered and continues to suffer serious financial injury that has resulted in substantial damages. WHEREFORE, Defendant (Counterclaim Plaintiff) demands that judgment be entered in his favor and against Plaintiff (Counterclaim Defendant) on the Defendant's (Counterclaim Plaintiff's) counterclaim in the amount of $4,580.00, together with costs and any other relief the Court deems appropriate. Respectfully submitted, FENSTERMA HER AND ASSOCIATES, P.C ; ~John R. Fenstermacher, Esquire 'Supreme Court I.D. #29940 .. 5115 East Trindle Road Mechanicsburg, PA 17050 (717) 691-5400 Attorney for Defendant DATED: July 3, 2002 CERTIFICATE OF SERVICE AND NOW, on this 3rd day of July, 2002, I, John R. Fenstermacher, Esquire, hereby certify that I have served the foregoing Defendant Steven Kuzo's Answer, New Matter and Counterclaim to Plaintiffs Amended Complaint by mailing a true and correct copy by United States first class mail, addressed as follows: Brian N. Zulli, Esquire Nealon & Gover, P.C. 2411 North Front Street Harrisburg, PA 17110 and Matthew C. Browndorf, Esquire Buchanan Ingersoll Professional Corporation One South Market Square 213 Market Street - 3ra Floor Harrisburg, PA 17101 .Fenstermacher CAFFREY AUTO SUPPLY, INC., d/b/a COUNTRY AUTO SALES, Plaintiff Vo KENNETH HARTZELL and STEVEN KUZO, Defendants : IN THE COURT OF COMMON PLEAS : : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 02-140 CIVIL TERM : ENTRY OF APPEARANCE To: Prothonotary: Kindly enter the appearance of Stephen Moniak, Esquire as counsel for Plaintiff Caffrey Auto Supply, Inc., d/b/a Country Auto Sales in the above-captioned action. BUCHANAN INGERSOLL PROFESSIONAL CORPORATION I.D. #80035 One South Market Square 213 Market Street 3~ Floor Harrisburg, PA 17101 (717)237-4800 CERTIFICATE OF SERVICE I, Stephen Moniak, Esquire, certify that I have this date, served a copy of the foregoing document upon the following by United States mail, first class, postage pre-paid as follows: John Fenstermacher, Esquire 5115 East Trindle Road Mechanicsburg, PA 17050 Brian Zulli, Esquire Nealon & Gover, P.C. 2411 North Front Street Harrisburg, PA 17110 Phillip Zulli, Esquire 1501 North Front Street Harrisburg, PA 17102 " Stephen Moniak, Esquire DATE: CAFFREY AUTO SUPPLY, INC., dPo/a COUNTRY AUTO SALES, Plaintiff Vo KENNETH HARTZELL and STEVEN KUZO, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-140 CIVIL TERM : : WITHDRAWAL OF APPEARANCE TO: Prothonotary: Kindly withdraw my appearance on behalf of Plaintiff Caffrey Auto Supply, Inc., d/b/a Country Auto Sales in the above-captioned matter. BUCHANAN INGERSOLL PROFESSIONAL CORPORATION ~tt~w~.~l~rowndorf, Esquire I.D. #81915 One South Market Square 213 Market Street 3rd Floor Harrisburg, PA 17101 (717)237-4800 DATE: /* 10 t CERTIFICATE OF SERVICE I, Stephen Moniak, Esquire, certify that I have this date, served a copy of the foregoing document upon the following by United States mail, first class, postage pre-paid as follows: John Fenstermacher, Esquire 5115 East Trindle Road Mechanicsburg, PA 17050 Brian Zulli, Esquire Nealon & Gover, P.C. 2411 North Front Street Harrisburg, PA 17110 Phillip Zulli, Esquire 1501 North Front Street Harrisburg, PA 17102 / St~pl~en ~ign[ak,~ squire DATE: CAFFREY AUTO SUPPLY, INC., d/b/a COUNTRY AUTO SALES, Plaintiff Vo KENNETH HARTZELL and STEVEN KUZO, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 02-140 CIVIL TERM : PLAINTIFF CAFFREY AUTO SUPPLY, INC.'S REPLY TO COUNTERCLAIM OF DEFENDANT STEVEN KUZO Plaintiff, Caffrey Auto Supply, Inc. d/b/a Country Auto Sales ("Caffrey"), by its attorneys, Buchanan Ingersoll Professional Corporation, responds to the Counterclaim of Defendant Steven Kuzo as follows: COUNTERCLAIM I - BREACH OF CONTRACT Kuzo vs. Caffrey Auto Supply~ Inc. d/b/a Country, Auto Sales 40. Caffrey incorporates its Amended Complaint as if fully set forth herein. 41. Admitted in part and denied in part. It is admitted that Caffrey did not pay Defendant Kuzo $3,160 "towards the cost of the bad check written by the New York dealer." It is denied that Caffrey had any obligation whatsoever to pay Defendants as alleged by Defendant Kuzo. To the contrary, "the bad check written by the New York dealer" was the sole obligation of the Defendants. 42. Admitted in part and denied in part. It is admitted only that Caffrey did not pay Defendants "$6,000 towards the cost of liquidation of Country Auto Sales' assets." It is denied that Caffrey owed any obligation to Defendants to do so. To the contrary, the obligation to pay "the cost of liquidation of Country Auto Sales' assets" was the sole obligation of the Defendants. 43. Admitted in part and denied in part. It is admitted only that Caffrey did not pay the Defendants $9,160 "due to operating losses." It is denied that Caffrey owed any obligation to Defendants to do so. To the contrary, any operating losses sustained by Caffrey were the obligation of the Defendants, not Caffrey. 44. Denied. It is denied that Defendants Hartzell and Kuzo only "were individually responsible for half of their joint 80%." To the contrary, Defendants Hartzell and Kuzo were solely and fully responsible for 100% of the obligations of Plaintiff. It is further denied that Caffrey owes any monies whatsoever to Defendants Hartzell and Kuzo including, without limitation, the $4,580 alleged by Defendant Kuzo in this paragraph. 45. The averments contained in paragraph 45 are conclusions of law to which no response is required. To the extent a response is required, the avemients in this paragraph are denied. It is specifically denied that Caffrey and Defendants entered into an oral agreement whereby Caffrey was obligated to assume 20% of the operating losses of Plaintiff. By way of further answer, Caffrey could not have breached an agreement that never existed. WHEREFORE, Plaintiff Caffrey Auto Supply, Inc. d/b/a Country Auto Sales respectfully requests that Defendant Steven Kuzo's counterclaim be dismissed in its entirety and judgment be entered in favor of Plaintiff and against Defendant Kuzo, together with costs of suit and other relief this Court deems appropriate. COUNTERCLAIM II - UNJUST ENRICHMENT 46. Caffrey incorporates its Amended Complaint and its responses to paragraphs 40 through 45 herein as if fully set forth. 47. Denied. It is denied that Defendant is entitled to any "restitution" under the contract for operating losses and further denied that a contract as alleged by Defendants was ever agreed to by the parties. It is further denied that Caffrey has been unjustly enriched in any Denied. It is denied that Caffrey's "actions constitute an unjust retention of a benefit to the loss of Defendants" and that "Plaintiff's retention of money is against the fundamental principals of justice and good conscience and are patently unfair." To the contrary, there can be no unjust retention where no obligation to pay ever arose. 49. The averments contained in paragraph 49 constitute conclusions of law to which no response is required. To the extent a response is required, the averments in this paragraph are denied. It is specifically denied that Defendant Kuzo has suffered and continues to suffer serious financial injury that resulted in substantial damages. WHEREFORE, Plaintiff Caffrey Auto Supply, Inc. d/b/a Country Auto Sales respectfully requests that Defendant Steven Kuzo's counterclaim be dismissed in its entirety and judgment be entered in favor of Plaintiff and against Defendant Kuzo, together with costs of suit and other relief this Court deems appropriate. DATE: July 22, 2002 BUCHANAN INGERSOLL PROFESSIONAL CORPORATION One South Market Square 213 Market Street - 3rd Floor Harrisburg, PA 17101 (717)237-4800 I, Kenneth Caffrey, have mad the foregoing document and verify that the facts set forth arc tr~ and correct to thc best of my knowledge, information and belief. To the extent that the foregoing document and/or its iansual~e is that of counscl, I have relied upon counsel in making this Verification. I u~der$~and that any false sta~emc~ls made herein are subjec! ~o the penalties of 15 Pa. C.S.A. § ~VO,~, relatinE io unswom falsificalion ~o authorili~. CERTIFICATE OF SERVICE I, Stephen Moniak, Esquire, certify that I have this date, served a copy of Plaintiff Cafffey Auto Supply, Inc.'s Reply to Counterclaim of Defendant Steven Kuzo upon the following by United States mail, first class, postage pre-paid as follows: John R. Fenstetmacher, Esquire 5115 East Trindle Road Mechanicsburg, PA 17050 Brian Zulli, Esquire Nealon & Gover, P.C. 2411 North Front Street Harrisburg, PA 17110 DATE: July 22, 2002 CAFFREY AUTO SUPPLY, INC., d/b/a COUNTRY AUTO SALES, Plaintiff · KENNETH HARTZELL and · STEVEN KUZO, . Defendants · IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-140 CIVIL TERM PRAECIPE TO MARK SETTLED DISCONTINUED AND ENDED TO THE PROTHONOTARY: Kindly mark this matter settled, discontinued and ended. BUCHANAN INGERSOLL PROFESSIONAL CORPORATION : n~ ~035 One South Market Square 213 Market Street - 3rd Floor Harrisburg, PA 17101 (717)237-4800 DATE: February 13, 2003 CERTIFICATE OF SERVlCE I, Stephen Moniak, Esquire, certify that I have this date, served a copy of the Praecipe to Mark Settled, Discontinued and Ended upon the following by 'United States mail, first class, postage pre-paid as follows: James G. Nealon, HI, Esquin~ Nealon & Gover, P.C. 2411 North Front Street Harrisburg, PA 17110 John R. Fenstermacher, Esquire Fenstermacher and Associates: 5115 East Trindle Road Mechanicsburg, pA 17050 DATE: February 13, 2003 j~tepnen M'omak, Esquire