HomeMy WebLinkAbout11-8208EARL LLOYD NICHOLAS,
Plaintiff
V.
AYERS, LCC d.b.a SERVPRO, NCC
SCOTT AYERS;
DAN AYERS,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO:
: JURY TRIAL DEMANDED
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
Plaintiff. You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. 4F
YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO . `FQ OR
TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHEW ;YW
CAN GET LEGAL HELP. = -+
y co
Cumberland County Court House -?
Court Administrator
1 Courthouse Square
Carlisle, PA 17013-3387
(717) 240-6200
7y?y
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 facha 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 objectiones a las demandas encontra 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 ABAJO PARA AVERIGUAR DONDE SE PUEDE
CONSEGUIR ASISTENCIA LEGAL.
Cumberland County Court House
Court Administrator
1 Courthouse Square
Carlisle, PA 17013-3387
(717) 240-6200
EARL LLOYD NICHOLAS,
Plaintiff
V.
AYERS, LCC d.b.a SERVPRO, NCC
SCOTT AYERS;
DAN AYERS,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
: NO:
JURY TRIAL DEMANDED
COMPLAINT
1
2
3.
4.
5
Plaintiff is Earl Lloyd Nicholas ("Plaintiff') is an adult individual who resides at
29 Reo Drive, Palmyra, Pennsylvania 17078.
Ayers, LLC d.b.a ServPro, NCC ("ServPro) is a limited liability corporation and
an independently owned franchise of ServPro Industries, Inc. with an official
business office located at 107 North Market Street, Mechanicsburg, Cumberland
County, Pennsylvania 17055.
Defendant Scott Ayers is an adult individual who is the co-owner and vice-
president of "ServPro" with offices located at 107 North Market Street,
Mechanicsburg, Cumberland County, Pennsylvania 17055.
Defendant Dan Ayers is an adult individual who is the co-owner and president of
"ServPro" with offices located at 107 North Market Street, Mechanicsburg,
Cumberland County, Pennsylvania 17055.
Plaintiff was an employee of ServPro, namely a construction manager from
approximately June 2007 to November 2009.
6. On or around November 2009, ServPro purchased from Kirby's Remodeling and
Flooring Center, Inc. ("Kirby's") numerous items, including two pieces of carpet,
to be installed by ServPro in an individual's home.
7. Around the same time there were multiple work orders and jobs being signed for,
picked up and/or placed.
8. Plaintiff was unavailable during the time in question and others were to be
responsible for delivery and/or drop-off. Defendants knew that Plaintiff would be
unavailable that day.
9. Apparently those items were not installed in the individual's home, nor were they
located at ServPro's warehouse.
10. Plaintiff was subsequently fired and was granted unemployment compensation. At
no time during that process did Defendants mention or believe that Plaintiff was
involved in a theft.
11. Plaintiff then filed a complaint with the Pennsylvania Department of Labor.
Subsequently, Defendants called the police and made the false allegations
knowing that Plaintiff would be another state at the time.
12. Plaintiff did not steal the items in question, but as a result of Defendant's actions,
was criminally charged.
COUNT I: MALICIOUS PROSECUTION
13. All previous paragraphs of this Complaint are herein incorporated by reference.
14. The criminal complaint filed against Plaintiff on February 2, 2010, alleged that
Plaintiff violated 18 Pa.C.S. § 3922 §§ Al (Theft by Deception) by intentionally
obtaining or withholding property of another by deception. The complaint alleges
that Plaintiff created a false impression to Kirby's by ordering carpet on behalf of
ServPro, but never delivered the carpet to the job. See Exhibit A.
15. The police criminal complaint against the Plaintiff admits that the carpet was and
is unaccounted for, and was never found with Plaintiff or his home.
16. After a trial against Plaintiff, he was found "not guilty."
17. ServPro and the individual Defendants initiated the criminal proceedings against
Plaintiffs without probable cause to believe that Plaintiff took or withheld those
items by deception or intentionally created a false impression. Defendants had no
reason to believe Plaintiff stole the items. Instead of double checking the records
or looking for clerical errors, ServPro and the individual defendants called the
police knowing full well that Plaintiff did not steal the items. Defendants took no
action to further investigate what really happened, but instead made baseless
claims against Plaintiff.
18. Additionally, Defendants did not raise the alleged theft at Plaintiff's request for
unemployment compensation, but only called the police when Plaintiff initiated a
complaint with the Department of Labor.
19. Moreover, the charges were not only unfounded, but were brought by ServPro and
the individual Defendants with malice, in hopes of intimidating, embarrassing,
and harassing Plaintiff.
20. Malice may be inferred where charges are brought with a lack of probable cause.
See Kelly v. General Teamsters. Local Union 249, 544 A.2d 940, 941 (Pa. 1988)
("A cause of action for malicious prosecution has three elements: The defendant
must have instituted proceedings against the plaintiff 1) without probable cause,
2) with malice, and 3) the proceedings must have terminated in favor of the
plaintiff.... Malice may be inferred from the absence of probable cause."); and
Hugee v. Pennsylvania R. Co., 101 A.2d 740, 743 (Pa. 1954).
21. Only after Plaintiff was put through the embarrassing and humiliating ordeal of
getting fingerprinted, having mug-shots taken and a criminal trial was the charge
finally disposed of by a not guilty verdict.
22. Plaintiff was embarrassed, humiliated, and intimidated by ServPro and the
individual Defendant's actions, and had to hire undersigned counsel to defend
himself against charges that he was ultimately found not guilty of committing.
WHEREFORE, Plaintiffs demand judgment against ServPro and the individual
Defendants for general damages in an amount in excess of the limits of compulsory
arbitration and for punitive damages in an amount to be determined by the trier of fact,
along with costs, interest and attorney's fees.
Respectfully Submitted,
Rominger & Associate;
Date:
Robert A. Kulling, Esquire
155 South Hanover Street
Carlisle, Pennsylvania 17013
(717) 241-6070
Supreme Court ID # 308874
Attorney for Plaintiff
EARL LLOYD NICHOLAS,
Plaintiff
V.
AYERS, LCC d.b.a SERVPRO, NCC
SCOTT AYERS;
DAN AYERS,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO:
: JURY TRIAL DEMANDED
VERIFICATION
I verify that the statements made in this Complaint are true and correct. I
understand that false statements herein are made subject to the penalties of 18 Pa. C.S.
§4904, relating to unworn falsification to authorities.
Date: I bA l
Earl Lloyd Nicholas, Plaintiff
??1/'v"OV'??)=AL?? OF PENNSYLVANIA
,D-I TY OF CLrrtierla'id
Magis'e la DistIlCt NLr172r P ?s
Ml Hcn- `-,crras A. ? acey
Address 1u4 s. SDortirc Hill Roac
Me_tanicsburc PA 17050
Telephone 1717:'61-823ii
I
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DEFENDANT:
Earl
First Name
29 Reo Drive
Palmyra, PA 17078
POLIO CRIMINAL COMPLAINT
COMMONWEALTH OF PENNSYLVANIA
VS.
Lloyd
Middle Name Last Name
(NAME and ADDRESS)
Nicholas
Gen.
NCIC Extradition Code Type
-
? 1-Felony Full ? j 4-Felony No Ext -
? B-Misdemeanor Limited
? E-Misdemeanor Pending
j ? 2-Felon
Ltd
y
.
? 5-Felony Pend. ® C-Misdemeanor Surrounding States
? 3-Felony Surrounding States ? A-Misdemeanor Full
? D-Misdemeanor No Extradition
? Distance
DEFENDANT IDENTIFICATION INFORMATION -
RACE ETHNICITY DDo et Number Date Filed
T L
® White ? Hispanic .10
? Asian ® N j
iveScan Number Complaint/Incident Number
02/02/2010 HAM20100100753
on- DOB 07/28/1965 POS --
Hispanic
? Black ? Unknown Add'I DOB '// SSN 169-52-1503 Add'I SSN
- -
I
? N
ti I
a
ve
American GENDER I First Name
Middle Name Last Name Gen
? Unknown Z Male
? Female i AKA
SID: 307-50-65-9 ! HAIR COLOR
? GRY (Gray)
? RED (Red/Aubn.) ( EYE COLOR
Request Lab Services?
? YES Z NO I ? BLK (Black) ? ONG (Orange)
® BLN (Blonde:
?
GRN (Green) ?PNK (Pi
Stra
b
k
? BLU (Blue) ? PILE (Purple)
El BRO
B
? w
erry)
n
)
? WHI (White) ? BLK (Black) ? GRY
(Gray) ? MUti
(
rown)
PNK (Pink)
? GRN (Green) ? SDY (Sand
) ? XXX (Unk./Bald) ® BLU (Blue)
El HAZ (Hazel) (Multicolored)
_
y
Driver License State PA ? BRO (Brown) [I MAR (Maroon) ?XXX (Unknown)
License Number 21 466 491
DNA
? YES ? NO DNA Location Expires: 07/29/2011
WEIGHT (11i
250
FBI Number 631750AC3 MNU Number
-
Fingerprint Classification: l
Ft. HEIGHT In.
5 11 I
DEFENDANT VEHICLE INFORMATION -1
Plate # State Hazmat Registration Com
'I V
h
_ ? Sticker (MM/YY) m
e
. School Oth. NCIC
/ Ind. ? Veh
?
j VIN Year Make
j .
Veh. Code
Model i Style
Color
Office of the attorney for the Commonwealth ? Approved ? Disapproved because:
(The attorney for the Commonwealth may require that the complaint. arrest warrant affidavit, or both be approved by the attorney for the Commonwealth prior
to filing. See Pa.R.Crim.P 507).
(Name of the attorney for the Commonwealth) (Signature of the attorney for the Commonwealth)
(Date)
I, Patrolman Nathaniel Funk 38922/19-10
(Name of the Affiant) (PSP/MPOETC -Assigned Affiant ID Number & Badge #
j Of Hampden Township Police Department PA0210400
(Identify Department or Agency Represented and Political Subdivision) (Police Agency ORI Number)
do hereby state: (check appropriate box)
1. ® 1 accuse the above named defendant who lives at the address set forth above
? 1 accuse the defendant whose name is unknown to me but who is described as
? I accuse the defendant whose name and popular designation or nickname are unknown to me and whom I have
therefore designated as John Doe or Jane Doe
with violating the penal laws of the Commonwealth of Pennsylvania at [103] Hampden Township
5200 E. Trindle Road Mechanicsburg, PA 17050 73U slon -C-506T (Place-Political u ivislon
in Cumberland County [21] on or about November 5, 2009 and November 18, 2009
(County Code)
Page 1 of
CXV&'k - ` A `t
POLICE CRIMINAL COMPLAINT
docket Number: Date Filed: OTN/LiveScan Number Complaint/Incident Number
_ 02;02'2010 _ HAM20100100753 _
Defendant Name First: ! Middle Last:
Earl Lloyd I Nicholas
The acts committed by the accused are described below with each Act of Assembly or statute violated; if appropriate
(Set forth a brief summary of the facts sufficient to advise the defendant of the nature of the offense (s) charged, A citation to the statutes i violated.. without more,
is not sufficient. In a summary case, you must cite the specific section(s) and subsection(s) of the statute(s) or ordinance(s) allegedly violated.
Inchoate ? Attempt ? Solicitation Conspiracy ? Al ? A2 ? B ? Permitting (Title 75 Only)
Offense 18 901 A 18 902 A 18 903 (Engaging) (Aiding) (Knowledge) ? 75 1575 A
® 1 3922 (a) (1) of the 18 I 1 M1
Lead? Offense# Section Subsection PA Statute (Title) Counts Grade NCIC Offense Code UCR/NIBRS Code
PennDOT Data Accident
(if applicable) Number ® Safety Zone ? Work Zone
Statute Description/Acts of the accused associated with this Offense:
Title 18; Section 3922 (a)(1) Theft by deception-
A person is guilty of theft if he intentionally obtains or withholds property of another by deception. A person deceives if he intentionally: creates or
reinforces a false impression, including false impressions as to law, value, intention or other state of mind; but deception as to a person's intention to
perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise. TO WIT; The defendant, Earl Lloyd
Nicholas, did create a false impression to Kirby's Remodeling and Flooring Center, by ordering carpet on behalf of ServPro for the Davis job. Two orders
of carpet, Order #18498; Show-Horizon Sky #19231 carpet ($350.94) and Order #18863; Mohawk style monolith color carpet ($1049.40) , were placed
and subsequently picked up by Nicholas. The pieces of carpet were never used for the Davis job, or by ServPro, and are currently unaccounted for.
Inchoate ? Attempt ? Solicitation
I Conspiracy ? Al ? A2
?
B
? Permitting (Title 75 Only)
Offense 18 901 A 18 902 A 18 903
(Engaging) (Aiding) (Knowledge) I 75 1575 A ?
? i - of the
Lead? Offense#
PennDOT Dat
Section Subsection PA Statute Title i
Counts Grade NCIC Offense Code UCR/NIBRS Code
a
(if applicable) Accident
Number
? Safety Zone
? Work Zone
i Statute Description/Acts of the accused associated with this Offense
Inchoate ? Attempt ? Solicitation Conspiracy ? Al
?A2 ?B
Offense 18 901 A 18 902 A 18 903 (Engaging) (Aiding) (Kno
? I I of the
? Permitting (Title 75 Only)
75 1575 A
___ - - -_ - ___ - •onJ IrVUC
Penn DOT Data Accident
if a livable Number ? Safety Zone ? Work Zone
I Statute Description/Acts of the accused associated with this Offense:
Page _of_
c
POLICE CRIMINAL COMPLAINT
Docket Number: r Date Filed: OTN/LiveScan Number
02/02/2010 Complaintllncident Number
First: HAM20100100753
Defendant Name Middle: Last:
Earl Lloyd
,I Nicflolac
2. 1 ask that a warrant of arrest or a ummons 'e issued and that the defendant be required to answer the charges I have
made.
3. 1 verify that the facts set forth in this complaint are true and correct to the best of my knowledge or information and
belief. This verification is made subject to the penalties of Section 4904 of the Crimes Code (18 PA.C.S.§4904)
relating to unsworn falsification to authorities.
4. This complaint is comprised of the preceding Page, as well as the attached pages that follow, numbered i through
L? , specifying offenses and Participants, if any.
The acts committed by the accused, as listed and hereafter, were against the peace and dignity of the Commonwealth
of Pennsylvania and were contrary to the Act(s) of the Assembly; or in violation of the statutes cited.
(Before a warrant of arrest can be issued, an affidavit of probable cause must be completed, sworn to before the
issuing authority, and attached.)
February 02,
2010
(Signature of Affiant)
AND NOW, on this date I certify that the complaint has been properly completed and verified
An affidavit of probable cause must be completed before a warrant can be issued.
09
(Magisterial District Court Number) (Issuing Author y)
I
Page _ of _
CRIMINAL COMPLAINT
Docket Number: Date Filed:
02/02/2010
First: Middle: Last:
Defendant Name: Earl Lloyd Nicholas
AFFIDAVIT of PROBABLE CAUSE
On Wednesday January 27, 2010 I was on duty from 1430 to 2230 hours. I was in full uniform, operating marked police vehicle number five. At
approximately 1500 hours, Scott Ayers, co-owner of ServPro in Mechanicsburg, came into the Hampden Township Police Station to report a theft. Ayers
stated that his former maintenance manager, Earl Nicholas, was suspected of using ServPro's business account to purchase item's not used by or for
ServPro. The business account was used at Kirby's, 5200 E. Trindle Road Mechanicsburg.
Ayers provided receipt's for two transaction's at Kirby's. Both receipt's were for the Davis home. One receipt (order #18498), picked up on 11/05/2009,
was for a piece of carpet totaling $350.94. The other receipt (order #18863), picked up on 11/18/2009, was for a larger piece of carpet totaling
$1049.40. Ayers advised that these items were not installed in the Davis home. Ayers provided a list of the item's Mr. Davis signed for. The item's in
question were not on this list. Ayers also advised the item's in question were no where to be found in ServPro's warehouse.
Ayers advised that Nicholas used a "take home" company vehicle. Ayers provided GPS coordinates for Nicholas' take home vehicle, that would have
placed him at Kirby's, picking up the item's in question.
On Thursday January 28, 2010 I made contact with the owner of Kirby's, William Sockman Sr.I asked Sockman if he could identify the employee who
filled the order's for ServPro. I produced the two invoices that are in question. Sockman advised that he filled order #18863. Sockman advised it was a
part-time employee, "Erv", who filled order #18498. Sockman stated that the signature of the ServPro employee who picked up the order, was
recognized as Nicholas' signature. I asked Sockman if he witnessed Nicholas pick up the order. Sockman advised that Nicholas is the only employee
from ServPro who pick's up order's from Kirby's. Sockman advised he remembered the order's in question, and that Nicholas was the one who picked
up the item's.
I, Patrolman Nathaniel Funk, BEING DULY SWORN ACCORDING TO THE LAW, DEPOSE AND SAY THAT THE
FACTS SET FORTH IN THE FOREGOING AFFIDAVIT ARE TRUE AND CORRECT TO THE 135AT OF MY
KNOWLEDGE, INFORMATION AND BELIEF. .
(S gr4 ure of Affiant)
Sworn to me and subscribed before me this day of
Date
My commission expires first Monday of January,
, Magisterial District Judge
OTN/LiveScan Number Complaint/Incident Number
HAM20100100753
POST & SCHELL, P.C.
BY: BARBARA A. ZEMLOCK, ESQUIRE
E-MAIL: BZemlock@postschell.com
I.D. # 58891
JASON L. REIMER, ESQUIRE
E-MAIL: JReimer@postschell.com
I.D. # 206913
17 NORTH SECOND STREET
12th Floor
Harrisburg, PA 17101-1601
717-731-1970
EARL LLOYD NICHOLAS,
PLAINTIFF,
V.
AYERS, LCC d.b.a. SERVPRO, NCC,
SCOTT AYERS, DAN AYERS
DEFENDANTS
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Attorneys For Defendants, <
Ayers, LCC d.b.a. ServPro, NCC, "
Scott Ayers, Dan Ayers
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Civil Action - Law
No. 11-8208
JURY TRIAL DEMANDED
ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Kindly enter the appearance of Barbara A. Zemlock, Esquire, and Jason L. Reimer,
Esquire, of Post & Schell, P.C., as counsel on behalf of Defendants Ayers, LCC d.b.a. ServPro,
NCC, Scott Ayers, and Dan Ayers relative to the above-captioned matter.
Respectfully submitted,
POST &ELL, P.q-:-?
Bar a A. Z lock, Ems,
Attorney #58891
17 North Second Street, 12th Floor
Harrisburg, PA 17101
(717) 731-1970
Attorneys For Defendants,
Ayers, LCC d.b.a. ServPro, NCC,
Scott Ayers, Dan Ayers,
Dated: November 18, 2011
8028496v1
CERTIFICATE OF SERVICE
I, Barbara A. Zemlock, Esquire, hereby state that I have this day caused to be served a
true and correct copy of the foregoing document upon the following individual via first class
mail.
Robert A. Kulling, Esquire
Rominger & Associates
155 South Hanover Street
Carlisle, PA 17013
Dated: November 18, 2011
POST & SCHELL, P.C.
BY: BARBARA A. ZEMLOCK, ESQUIRE
E-MAIL: BZemlock@postschell.com
I.D. # 58891
JASON L. REIMER, ESQUIRE
E-MAIL: JReimer@postschell.com
I.D. # 206913
17 NORTH SECOND STREET
12TH FLOOR
HARRISBURG, PA 17101-1601
717-731-1970
EARL LLOYD NICHOLAS,
PLAINTIFF,
V.
AYERS, LCC d.b.a. SERVPRO, NCC,
SCOTT AYERS, DAN AYERS
DEFENDANTS.
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Attorneys For Defendants,
Ayers, LCC d.b.a. ServPro, NCC,
Scott Ayers, Dan Ayers
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Civil Action - Law
No. 11-8208
JURY TRIAL DEMANDED
DEFENDANTS' PRELIMINARY OBJECTION
TO PLAINTIFF'S COMPLAINT
Defendants Ayers, LCC d.b.a. ServPro, NCC, Scott Ayers, and Dan Ayers (collectively,
the "Defendants"), by and through their attorneys, Post & Schell, P.C., file this Preliminary
Objection to Plaintiff s Complaint and, in support hereof, state as follows:
1. On October 28, 2011, Plaintiff Earl Lloyd Nicholas ("Plaintiff') filed a one count
Complaint against the Defendants through which Plaintiff attempted to state a claim against the
Defendants for "malicious prosecution."
2. Defendants were served with the Complaint on November 1, 2011.
3. In short, Plaintiff accuses the Defendants of initiating a criminal proceeding
against the Plaintiff "without probable cause" to believe that Plaintiff took or withheld certain
8017869vl
items, to wit, carpeting, that were to be used in connection with the Defendants' business. See,
Complaint, ¶¶ 14, 17. According to Plaintiff, Defendants had no reason to believe that Plaintiff
stole the items at issue and that the Defendants called the police "knowing full well that Plaintiff
did not steal the items." Id., ¶ 17.
4. The Complaint reflects that the Plaintiff was acquitted of the crime charged. Id.,
¶ 16.
5. Plaintiff includes as part of the Complaint the Criminal Complaint that was filed
against the Plaintiff and the Affidavit of Probable Cause in support of the same. See, Complaint
at Exhibit "A."
6. The Affidavit of Probable Cause reflects that Defendant Scott Ayers, co-owner of
Defendant ServPro, reported a theft to the Hampden Township Police and stated that Plaintiff
"... was suspected of using ServPro's business account to purchase item's [sic] not used by or
for ServPro." See, Complaint at Exhibit "A," Affidavit of Probable Cause. The business
account of the Defendants that was at issue was at Kirby's, in Mechanicsburg. Id.
7. The Affidavit of Probable Cause also reflects that Defendant Scott Ayers
provided to the affiant certain documentation. Id.
8. Additionally, the Affidavit of Probable Cause states that the affiant:
... made contact with the owner of Kirby's, William Sockman Sr. I
asked Sockman if he could identify the employee who filled the
order's [sic] for ServPro. I produced the two invoices that are in
question. Sockman advised that he filled order # 18863. Sockman
advised it was a part-time employee, "Erv", who filled order
# 18498. Sockman stated that the signature of the ServPro employee
who picked up the order, was recognized as Nicholas' signature. I
asked Sockman if he witnessed Nicholas pick up the order.
Sockman advised that Nicholas is the only employee from ServPro
-2-
who pick's [sic] up order's [sic] from Kirby's. Sockman advised he
remembered the order's [sic] in question, and that Nicholas was the
one who picked up the item's [sic].
Id.
9. On February 2, 2010, the affiant, Patrolman Nathaniel Funk filed the Criminal
Complaint against Plaintiff accusing him of the crime set forth therein, to wit: theft by
deception. See Complaint at Exhibit "A," Criminal Complaint.
10. Nothing in the Complaint reflects that the Criminal Complaint was commenced
via a private criminal complaint.
11. The Affidavit of Probable Cause reflects that the affiant, Patrolman Funk,
conducted his own investigation of the Defendants' suspicion that Plaintiff "was suspected" of
using ServPro's business account to purchase items not used by or for ServPro. See Complaint
at Exhibit "A," Affidavit of Probable Cause.
1. PRELIMINARY OBJECTION PURSUANT TO PA. R. CIV. P. 1028(a)(4)
12. Paragraphs 1 through 11 hereof are incorporated herein by reference as if set forth
in full.
13. Pennsylvania Rule of Civil Procedure 1028(a)(4) permits a preliminary objection
asserting the legal insufficiency of a pleading.
14. The Pennsylvania Supreme Court has stated that: "A cause of action for
malicious prosecution has three elements. The defendant must have instituted proceedings
against the plaintiff 1) without probable cause, 2) with malice, and 3) the proceedings must have
terminated in favor of the plaintiff." Kelley v. General Teamsters, Local Union 249, 544 A.2d
940, 941 (Pa. 1988) (citation omitted).
-3-
15, The Complaint reflects that it was the Hampden Township Police Department that
instituted the criminal proceedings against the Plaintiff.
16. The Complaint reflects that the Hampden Township Police Department conducted
an independent investigation concerning the Defendants' suspicions.
17. The Complaint reflects that a neutral third party remembered the order in question
and identified the Plaintiff as the one who picked up the items at issue.
18. The Complaint does not reflect that the Defendants instituted proceedings against
the Plaintiff.
19. Regardless, the Complaint reflects that the proceedings instituted against the
Plaintiff were commenced with probable cause.
20. The Complaint fails to state a claim against the Defendants upon which relief can
be granted.
21. This preliminary objection should be granted and the Plaintiffs Complaint
dismissed, with prejudice.
WHEREFORE, Defendants Ayers, LCC d.b.a. ServPro, NCC, Scott Ayers, and Dan
Ayers respectfully request that this Honorable Court sustain their Preliminary Objection, dismiss
-4-
the Complaint filed in the above captioned matter, with prejudice, and enter such other relief as
this Court deems just and warranted.
Respectfully submitted,
POST & SCHELL, P.C.
By:
Barb . Z ock, quire
I.D. # 58891
Jason L. Reimer, Esquire
I.D. # 206913
17 North Second Street, 12th Floor
Harrisburg, Pa 17101-1601
717-731-1970
E-Mail: BZemlock@postschell.com
JReimer@postschell.com
Attorney for Defendants Ayers, LCC
d.b.a. ServPro, NCC, Scott Ayers,
and Dan Ayers
Dated: November 18, 2011
-5-
CERTIFICATE OF SERVICE
I, Barbara A. Zemlock, Esquire, hereby state that I have this day caused to be served a
true and correct copy of the foregoing document upon the following individual via first class
mail.
Robert A. Kulling, Esquire
Rominger & Associates
155 South Hanover Street
Carlisle, PA 17013
POST & SCHELL, P.C.
A.
Dated: November 18, 2011
POST & SCHELL, P.C.
BY: BARBARA A. ZEMLOCK, ESQUIRE
E-MAIL: BZemlock@postschell.com
I.D. # 58891
JASON L. REIMER, ESQUIRE
E-MAIL: JReimer@postschell.com
I.D. # 206913
17 NORTH SECOND STREET
12TH FLOOR
HARRISBURG, PA 17101-1601
717-731-1970
EARL LLOYD NICHOLAS,
PLAINTIFF,
V.
AYERS, LCC d.b.a. SERVPRO, NCC,
SCOTT AYERS, DAN AYERS
DEFENDANTS.
FILE.O-(F Ff(;
uE THE PROTHO,NdO AR 1"
2011 DEC 28 PM 12: C 1
CUMBERLAND COUNTY
PENNSYLVANIA
Attorneys For Defendants,
Ayers, LCC d.b.a. ServPro, NCC,
Scott Ayers, Dan Ayers
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Civil Action - Law
No. 11-8208
JURY TRIAL DEMANDED
DEFENDANTS' PRELIMINARY OBJECTION
TO PLAINTIFF'S AMENDED COMPLAINT
Defendants Ayers, LCC d.b.a. ServPro, NCC, Scott Ayers, and Dan Ayers (collectively,
the "Defendants"), by and through their attorneys, Post & Schell, P.C., file this Preliminary
Objection to Plaintiff s Amended Complaint and, in support hereof, state as follows:
1. On October 28, 2011, Plaintiff Earl Lloyd Nicholas ("Plaintiff') filed a one count
Complaint against Defendants through which Plaintiff attempted to state a claim against
Defendants for "malicious prosecution."
2. Defendants were served with the Complaint on November 1, 2011.
8188433v1
3. On November 18, 2011, Defendants filed a Preliminary Objection to Plaintiffs
Complaint through which Defendants established that the Complaint failed to state a claim upon
which relief can be granted.
4. On December 9, 2011, Plaintiff filed an Amended Complaint.
5. Through the Amended Complaint, Plaintiff added two (2) new paragraphs. The
first is the new Paragraph 10, in which Plaintiff makes an averment concerning an e-mail from
Defendant Scott Ayers to Plaintiff and attaches that e-mail as Exhibit "A." The second change
that was made is set forth at Paragraph 15, at which Plaintiff makes a conclusory allegation and
cites a case purportedly in support thereof.
6. In short, Plaintiff accuses Defendants of initiating a criminal proceeding against
Plaintiff "without probable cause" to believe that Plaintiff took or withheld certain items, to wit,
carpeting, that were to be used in connection with Defendants' business. See, Amended
Complaint, ¶¶ 15-16, 19.
7. The new Paragraph 10 that was added as part of the Amended Complaint actually
references an e-mail that was sent by Defendant Scott Ayers to Plaintiff, which e-mail indicates,
in relevant part:
It has come to our attention that several orders for carpet made and
received by you from Kirby's Remodeling and Flooring Center for
the Davis job were never installed at their residence and are not at
our warehouse. What is more troubling is that all carpet ordered
and installed at the Davis job is accounted for through other billing
from Kirby's Remodeling and Flooring Center.
Amended Complaint at Exhibit "A."
8. The e-mail from Defendant Scott Ayers to Plaintiff identifies the orders in
question and states that, "If you can't provide an explanation on where this flooring is within 24
-2-
hours we will have no alternative but to report this as theft to the appropriate law enforcement
authorities." Id.
9. According to Plaintiff, Defendants had no reason to believe that Plaintiff stole the
items at issue and that Defendants called the police "knowing full well that Plaintiff did not steal
the items." Id., 119.
10. The Amended Complaint reflects that Plaintiff was acquitted of the crime
charged. Id., 118.
11. Plaintiff includes as part of the Amended Complaint the Criminal Complaint that
was filed against Plaintiff and the Affidavit of Probable Cause in support of the same. See,
Amended Complaint at Exhibit "B."
12. The Affidavit of Probable Cause reflects that Defendant Scott Ayers, co-owner of
Defendant ServPro, reported a theft to the Hampden Township Police and stated that Plaintiff
"... was suspected of using ServPro's business account to purchase item's [sic] not used by or
for ServPro." See, Amended Complaint at Exhibit "B," Affidavit of Probable Cause. The
business account of Defendants that was at issue was at Kirby's, in Mechanicsburg. Id.
13. The Affidavit of Probable Cause also reflects that Defendant Scott Ayers
provided to the affiant certain documentation. Id.
14. Additionally, the Affidavit of Probable Cause states that the affiant:
... made contact with the owner of Kirby's, William Sockman Sr. I
asked Sockman if he could identify the employee who filled the
order's [sic] for ServPro. I produced the two invoices that are in
question. Sockman advised that he filled order # 18863. Sockman
advised it was a part-time employee, "Erv", who filled order
# 18498. Sockman stated that the signature of the ServPro employee
who picked up the order, was recognized as Nicholas' signature. I
asked Sockman if he witnessed Nicholas pick up the order.
Sockman advised that Nicholas is the only employee from ServPro
-3-
who pick's [sic] up order's [sic] from Kirby's. Sockman advised he
remembered the order's [sic] in question, and that Nicholas was the
one who picked up the item's [sic].
Id.
15. On February 2, 2010, the affiant, Patrolman Nathaniel Funk filed the Criminal
Complaint against Plaintiff accusing him of the crime set forth therein, to wit: theft by
deception. See Amended Complaint at Exhibit "B," Criminal Complaint.
16. Nothing in the Amended Complaint reflects that the Criminal Complaint was
commenced via a private criminal complaint.
17. The Affidavit of Probable Cause reflects that the affiant, Patrolman Funk,
conducted his own investigation of Defendants' suspicion that Plaintiff "was suspected" of
using ServPro's business account to purchase items not used by or for ServPro. See Amended
Complaint at Exhibit "B," Affidavit of Probable Cause.
18. The allegations added by Plaintiff via the Amended Complaint do not cure the
defect associated with the original Complaint, but, rather, underscore the fact that Plaintiff
cannot state a claim in this case upon which relief can be granted.
1. PRELIMINARY OBJECTION PURSUANT TO PA. R. CIV. P. 1028(a)(4)
19. Paragraphs 1 through 18 hereof are incorporated herein by reference as if set forth
in full.
20. Pennsylvania Rule of Civil Procedure 1028(a)(4) permits a preliminary objection
asserting the legal insufficiency of a pleading.
21. The Pennsylvania Supreme Court has stated that: "A cause of action for
malicious prosecution has three elements. The defendant must have instituted proceedings
against the plaintiff 1) without probable cause, 2) with malice, and 3) the proceedings must have
-4-
terminated in favor of the plaintiff." Kelley v. General Teamsters, Local Union 249, 544 A.2d
940, 941 (Pa. 1988) (citation omitted).
22. The Amended Complaint reflects that it was the Hampden Township Police
Department that instituted the criminal proceedings against Plaintiff.
23. The Amended Complaint reflects that the Hampden Township Police Department
conducted an independent investigation concerning Defendants' suspicions.
24. The Amended Complaint reflects that a neutral third party remembered the order
in question and identified Plaintiff as the one who picked up the items at issue.
25. The Amended Complaint does not reflect that Defendants instituted proceedings
against Plaintiff, within the meaning of law.
26. Regardless, the Amended Complaint reflects that the proceedings instituted
against Plaintiff were commenced with probable cause.
27. The Amended Complaint fails to state a claim against Defendants upon which
relief can be granted.
28. This preliminary objection should be granted and Plaintiffs Amended Complaint
dismissed, with prejudice.
WHEREFORE, Defendants Ayers, LCC d.b.a. ServPro, NCC, Scott Ayers, and Dan
Ayers respectfully request that this Honorable Court sustain their Preliminary Objection, dismiss
-5-
the Amended Complaint filed in the above captioned matter, with prejudice, and enter such other
relief as this Court deems just and warranted.
Respectfully submitted,
POST & SCHELL, P.C.
B
Jason L. Reimer, Esquire
I.D. # 206913
17 North Second Street, 12th Floor
Harrisburg, Pa 17101-1601
717-731-1970
E-Mail: BZemlock@postschell.com
JReimer@postschell.com
Attorney for Defendants Ayers, LCC
d.b.a. ServPro, NCC, Scott Ayers,
and Dan Ayers
Dated: December 28, 2011
-6-
CERTIFICATE OF SERVICE
I, Barbara A. Zemlock, Esquire, hereby state that I have this day caused to be served a
true and correct copy of the foregoing document upon the following individual via first class
mail.
Robert A. Kulling, Esquire
Rominger & Associates
155 South Hanover Street
Carlisle, PA 17013
Dated: December 28, 2011
POST & SCHELL, P.C.
4.
EARL LLOYD NICHOLAS,
Plaintiff
V.
AYERS, LCC d.b.a SERVPRO, NCC
SCOTT AYERS;
DAN AYERS,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - LAW
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ANT'S PRELIMINARY OBJECIN?' e
C:) ,.,
TO PLAINTIFF'S AMENDED COMPLAINT -; u x -
Plaintiff, Earl Lloyd Nicholas, by and through his attorney, Robert A. Kulling,
Esquire, file this Answer to Defendant's Preliminary Objections to Plaintiffs Amended
Complaint and, in support thereof, states as follows:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted in Part, Denied in Part. Plaintiffs admits his Amended
Complaint adds two (2) new paragraphs. to the original complaint. Plaintiff
denies that the second change is a conclusory allegation. By way of further
answer, Plaintiffs Amended Complaint adds case law that supports his
position that Defendant's "procured the institution of criminal
proceedings" against Plaintiff.
6. Admitted.
7. Admitted.
8. Admitted in Part. Plaintiff admits receiving such email. Plaintiff denies
that said email was simply an "identification and a statement." By way of
further answer, Defendant made an allegation and an incorrect conclusion,
without investigation, that Plaintiff was guilty of theft.
9. Admitted.
10. Admitted.
11. Admitted.
12. Admitted in Part. Plaintiff admits that Defendants reported an alleged theft
to Hampden Township Police. By way of further answer, it was an
incorrect allegation, without probable cause, by Defendant's that initiated
the criminal process.
13. Admitted.
14. Admitted.
15. Admitted.
16. Admitted in Part, Denied in Part. Admitted that there no filing of a private
criminal complaint. Plaintiff denies that a private criminal complaint is an
absolute prerequisite to file a claim for malicious prosecution.
17. Admitted in Part, Denied in Part. Plaintiff admits that Patrolman Funk
conducted an investigation. Plaintiff denies that Plaintiff was merely
"suspected" of theft by Defendants. By way of further answer,
Defendant's conducted no independent investigation and alleged
incorrectly that Plaintiff took the items in question. See Amended
Complaint at Exhibit "A."
18. Paragraph 18 is a conclusion of law, to which no answer is required. To
the extent an answer is required, it is denied. By way of further answer,
Plaintiff's Amended Complaint underscores justification for the filing of
the Complaint.
ANSWER TO PRELIMINARY OBJECTIONS
19. No answer required.
20. Admitted.
21. Admitted in Part. Plaintiff admits that the case cited sets the general
framework for a claim for malicious prosecution. By way of further
answer, Plaintiff reiterates that Defendant must initiate or "procure the
institution of criminal proceedings. Amicone v. Shoaf, 620 A.2d 1222,
1224 (Pa. Super. 1993).
22. Denied. By way of further answer, it was Defendant's who "procured the
institution of criminal proceedings" against Plaintiff.
23. Denied. By way of further answer, Plaintiff denies that the investigation
was independent of the "procurement" by Defendants.
24. Denied. The Amended Complaint reflects that there were multiple orders
and jobs being signed for, and Plaintiff was unavailable at the time in
question, which Defendant's knew. See, Amended Complaint, ¶¶ 7-8.
25. Denied as a conclusion of law. By way of further answer, Defendants
initiated and procured the institution of criminal proceedings, within the
meaning of the law.
26. Denied. The Amended Complaint reflects that the proceedings were
initiated without or "with lack" of probable cause.
27. Denied as a conclusion of law. By way of further answer, Plaintiff has
stated a claim upon which relief can be granted.
28. Denied. Defendant's preliminary objections should be denied and the case
should be allowed to proceed.
WHEREFORE, Plaintiff respectfully requests this Honorable Court overrule their
Preliminary Obections, and allow the case to proceed.
Respecfully Submitted,
R SOCIATES
• Robert . Kulling, Esquire
155 South Hanover Street
Carlisle, PA 17013
717-241-6070
I.D. # 308874
Attorney for Plaintiff
EARL LLOYD NICHOLAS,
Plaintiff
V.
AYERS, LCC d.b.a SERVPRO, NCC
SCOTT AYERS;
DAN AYERS,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
:NO: go/j^ 0Sap8'
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I, Robert A. Kulling, Esquire, hereby state that I have this day caused to be served
a true and correct copy of the foregoing document upon the following individual via first
class mail.
Barbara A. Zemlock, Esquire
Post & Schell, PC
17 North Second Street, 12th Floor
Harrisburg, PA 17101
Rominger Associates,
Dated: 1-1?-/Z.
Robert A. Kulling, Esquire
EARL LLOYD NICHOLAS, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
V. : CIVIL ACTION- LAW
AYERS, LCC d.b.a SERVPRO, NCC : NO: 11-8208
SCOTT AYERS; n 4.,
DAN AYERS, rri cO rn
Defendants : JURY TRIAL DEMANDED N� ; crr
�n un a°
r"ar -+o
PETITION FOR APPOINTMENT OF ARBITRATORS o
D'_ N o
TO THE HONORABLE,THE JUDGES OF SAID COURT:
Karl E. Rominger, counsel for the Plaintiff in the above action, respectfully represents that:
I. The above-captioned action is at issue.
2. The claim of the Plaintiff in the action is $50,000.00. The counterclaim of the Defendant in the
action is $0.00.
The,following attorneys are interested in the case(s)as counsel or are otherwise disqualified to sit as arbitrators: Any
attorneys of Rominger&Associates and any attorneys of Post& Schell P.C.
WHEREFORE, your Petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the
case shall be submitted.
cv — Karl E. Rominger, Esquire
c� �¢ Attorney for Plaintiff/Defendant
Q 155 South Hanover Street
Carlisle, PA 17013
n° r <>- Telephone: (717) 241-6070
Supreme Court ID No. 81924 L�a''�•'�
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ORDER OF COURT
AND NOW, 1-7 2013, in consideration of t e fore oin Petition,
�° 1�6inm, Q� egnn ,Esquire, Esquire, and Esquire, are
appointed arbitrators in the above-captioned action(or ac ns)as prayed for.
l d J�6 S `I• BY THE COT: "7
J.
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EARL LLOYD NICHOLAS, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
V. : CIVIL ACTION—LAW
AYERS, LCC d.b.a SERVPRO,NCC : NO: 11-8208
SCOTT AYERS;
DAN AYERS,
Defendants : JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I, Karl E. Rominger, Esquire, do hereby certify that 1 served a copy of the Petition upon the
following by depositing same in the United States mail, postage prepaid, at Carlisle, Pennsylvania.
addressed as follows:
Post& Schell P.C.
17 North Second Street
12th Floor
Harrisburg, PA 17101-1601
Respectfully submitted,
ROMINGER & ASSOCIATES
Karl E. Rominger, Esquire
155 South Hanover Street
Carlisle,PA 17013
(717) 241-6070
Supreme Court ID # 81924
Attorney for Plaintiff
Dated: April 4, 2013
C7,J CW.J ...i..
PRAECIPE FOR LISTING CASE FOR ARGUMENT COURT mwM
-cnc Cn
r-2:
To The Prothonotary of Cumberland County �cC-)
W
Please list the following case: for Argument Court for the next argument coin"Z: +
EARL LLOYD NICHOLAS, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY,PENNSYLVANIA
V. CIVIL ACTION—LAW
AYERS, LCC d.b.a SERVPRO,NCC : NO: 0'02 �
SCOTT AYERS;
DAN AYERS,
Defendants : JURY TRIAL DEMANDED
1. State matter to be argued(i.e. plaintiff's motion for new trial, defendant's demurrer to
complaint, etc.): Defendant's Preliminary Objections.
2. Identify all counsel who will argue cases:
(a). for plaintiffs: Karl E. Rominger, Esquire
ROMINGER &ASSOCIATES
South Hanover Street
Carlisle, PA 17013
(b). for defendants: Barbara A. Zemlock, Esquire
Post& Schell
17 North 2"a Street, 12th Floor
Harrisburg, PA 17101
3. I will notify all parties in writing within two (2) days that this case has been listed for
Argument.
4. Argument Court Date: August 9, 2013-
Signed:
Karl E. Rominger, Esquire
rr��
�� Attorney for: Plaintiff
ZOA)ate:
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GOVEk PERRY& SHORE
BY: BARBARA Z. ZEMLOCK,ESQUIRE H13 AUG -6 PM 3-
E-MAIL: BZEMLOCK@GPSLAWFIRM.COM PENNSYLVANIA
2411 NORTH FRONT STREET
HARRISBURG, PA 17110
TELEPHONE: 717- (717) 232-9900
EARL LLOYD NICHOLAS, IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,PENNSYLVANIA
Civil Action-Law
V.
No. 11-8208
SCOTT AYERS, DAN AYERS JURY TRIAL DEMANDED
WITHDRAWAL OF APPEARANCE
TO THE PROTHONOTARY:
Kindly withdraw the appearance of Barbara A. Zemlock, Esquire, as counsel of record
for Defendants Ayers, LCC d.b.a. ServPro, NCC, Scott Ayers, and Dan Ayers in the above-
captioned matter. Jason L. Reimer, Esquire of Post& Schell, P.C. shall remain counsel of record
for these Defendants.
Respectfully submitted,
GOVER PERRY& SHORE
Barb A. Ze lock, E
Attorney 1. . # 58891
2411 North Front Street
Harrisburg, PA 17110
Telephone: (717) 232-9900
'
1
CERTIFICATE OF SERVICE
I, Jason L. Reimer, Esquire, hereby state that I have this day caused to be served a true
and correct copy of the foregoing document upon the following individual via hand delivery:
Karl E. Rominger, Esquire
Rominger & Associates
155 South Hanover Street
Carlisle, PA 17013
PO , P.C.
Jas Lm er, Esquire
Dated: August 5, 2013
EARL LLOYD NICHOLAS, IN THE COURT OF COMMON PLEAS OF
PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA
V.
AYERS, LCC d.b.a. SERVPRO, NCC,
SCOTT AYERS, DAN AYERS,
DEFENDANTS 11-8208 CIVIL TERM
IN RE: PRELIMINARY OBJECTION OF DEFENDANTS TO
PLAINTIFF'S AMENDED COMPLAINT
BEFORE HESS, P.J., AND MASLAND, J.
ORDER OF THE COURT
AND NOW, this day of September, 2013, the preliminary objection filed by
Defendants is OVERRULED. Defendants are directed to file an Answer to Plaintiffs
Amended Complaint within twenty (20) days of this opinion and order.
By the Court,
Albert H. Masland, J.
✓ Karl E. Rominger, Esquire
For Plaintiff
Jason L. Reimer, Esquire -03
For Defendants M M
LL
EARL LLOYD NICHOLAS, IN THE COURT OF COMMON PLEAS OF
PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA
V.
AYERS, LCC d.b.a. SERVPRO, NCC,
SCOTT AYERS, DAN AYERS,
DEFENDANTS 11-8208 CIVIL TERM
IN RE: PRELIMINARY OBJECTION OF DEFENDANTS TO
PLAINTIFF'S AMENDED COMPLAINT
BEFORE HESS, P.J., AND MASLAND, J.
OPINION AND ORDER OF THE COURT
Masland, J., September 9, 2013:--
Before the court is the Preliminary Objection filed by Ayers, LLC d.b.a. ServPro,
NCC, Scoff Ayers, and Dan Ayers ("Defendants") to the Amended Complaint filed by
Plaintiff, Earl Lloyd Nicholas ("Plaintiff'). After briefing by the parties, we now overrule
the preliminary objection in accordance with the following opinion.
1. Introduction
On December 9, 2011, Earl Lloyd Nicholas filed an Amended Complaint against
Defendants. This action arises from a Criminal Complaint filed against Plaintiff for theft
by deception. Plaintiff alleges Defendants are liable for the tort of malicious prosecution.
Defendants object that Plaintiffs claim is legally insufficient and request the claim be
dismissed.
II. Facts
Plaintiff was an employee of Defendants from approximately June 2007 to
November 2009. In 2009, Defendants purchased numerous items from Kirby's
Remodeling and Flooring Center, Inc. ("Kirby's"), including two pieces of carpet that were
11-8208 CIVIL TERM
to be installed in a client's home. However, those items were never installed in the
client's home, were not found in Defendants' warehouse, nor were they ever recovered.
Defendants accused Plaintiff of theft by deception for creating a false impression to
Kirby's by ordering carpet on Defendants' behalf and never delivering the carpet to the
client. Plaintiff alleges he was unavailable during the time in question in order to be held
responsible for the missing items and that Defendants knew of his unavailability.
On January 12, 2010, Defendants e-mailed Plaintiff and warned that if the
location of the carpet was not explained within twenty-four hours, they would have to
report him to the authorities. Plaintiff was subsequently fired and granted unemployment
compensation, but no mention of the alleged theft was made during this process.
Plaintiff then filed a complaint with the Pennsylvania Department of Labor. Shortly
thereafter, Defendants did in fact contact the police and accused Plaintiff of theft.
Plaintiff alleges that Defendants knew full well that Plaintiff did not steal the items when
the phone call was made and that these accusations were made with malice, with the
intent to intimidate, embarrass, and harass Plaintiff. After the Hampden Township Police
conducted an investigation, a Criminal Complaint was filed against Plaintiff for theft by
deception on February 2, 2010. Ultimately, according to the Complaint, Plaintiff was
found not guilty.
III. Discussion
A. Standard of Review
Defendants' objection to Plaintiff's claim is in the nature of a demurrer, which
challenges the legal sufficiency of a complaint. Lutz v. Springettsbury Twp., 667 A.2d
251, 253 (Pa. Cmwlth. 1995). In ruling on preliminary objections in the nature of a
-2-
11-8208 CIVIL TERM
demurrer, all well-pleaded facts and all reasonable inferences that may be drawn from
them are accepted as true. Id. However, legal conclusions and unjustified inferences
are not deemed admitted. Id. A demurrer will be sustained only when the court is
certain that no recovery may be had on the pleaded facts. Id. With this generous
standard in mind, we review the preliminary objection of Defendants.
B. Defendants' Preliminary Objection to Plaintiff's Malicious Prosecution Claim
Defendants contend that Plaintiffs malicious prosecution claim should fail for two
reasons: (1) Plaintiff failed to allege that.Defendants themselves instituted the criminal
action; and (2) Plaintiff failed to allege there was a lack of probable cause. We disagree.
In order to establish a cause of action for the tort of malicious prosecution, "the
defendant must have instituted proceedings against the plaintiff 1) without probable
cause, 2) with malice, and 3) the proceedings must have terminated in favor of the
Plaintiff." Kelley v. General Teamsters, Chauffers, and Helpers, Local Union 249, 544
A.2d 940, 941 (Pa. 1988). "Malice may be inferred from the absence of probable cause."
Amicone v. Shoaf, 620 A.2d 1222, 1224 (Pa. Super. 1993).
In his Amended Complaint, Plaintiff alleges that Defendants procured the
institution of criminal proceedings against him and that he was criminally charged as a
result of Defendants' actions. Plaintiff also alleged that Defendants knew"full well that
Plaintiff did not steal the items." Compl. 119. Defendants assert they cannot be
charged with responsibility for the institution of the proceedings because an officer of the
Hampden Township Police Department filed the Criminal Complaint after conducting his
own investigation.
-3-
11-8208 CIVIL TERM
To the contrary, when "a private individual...provides knowingly false statements
to an official...the officer's intelligent use of discretion [is] impossible." Bradley V. Gen.
Accident Ins. Co., 778 A.2d 707 (Pa. Super. 2001) citing RESTATEMENT(SECOND) OF
TORTS §653. If the officer's intelligent use of discretion is impossible, the private person
who provided the false information to the officer can be charged with responsibility of
procuring the institution of proceedings. Id. Accordingly, based on Plaintiffs allegations
that Defendants called the police knowing that Plaintiff did not steal the items and was
unavailable at the time in question, Plaintiff sufficiently pleaded facts to establish that
Defendants procured the institution of the proceedings.
Defendants also assert that because the Criminal Complaint was filed after the
Hampden Township Police conducted an independent investigation, probable cause for
the criminal proceedings was established. However, we must make reasonable
inferences from Plaintiffs allegation that Defendants are responsible for the institution of
criminal proceedings, rather than the officer. As such, Plaintiff would need to allege
Defendants themselves lacked probable cause to procure the proceedings.
In his Complaint, Plaintiff averred Defendants procured the institution of criminal
proceedings against Plaintiffs without probable cause, did not double check the records
or look for clerical errors and knew "full well that Plaintiff did not steal the items." Compl.
119. Additionally, Plaintiff stated that he was unavailable at the time in question and
that Defendants knew Plaintiff would be unavailable that day. Compl. 18. Taking these
facts as true at this early stage, Plaintiff has alleged Defendants lacked probable cause
to institute criminal proceedings for theft against Plaintiff.
-4-
11-8208 =11- TERM
Accordingly, we conclude that Plaintiff has pleaded sufficient facts to establish a
cause of action for malicious prosecution, and therefore, Defendants' preliminary
objection is overruled.
IV. Conclusion
For the above stated reasons, the preliminary objection filed by Defendants is
overruled. Defendants are directed to file an Answer to Plaintiff's Amended Complaint
within twenty (20) days of the entry of this opinion and order.
ORDER OF THE COURT
AND NOW, this day of September, 2013, the preliminary objection filed by
Defendants is OVERRULED. Defendants are directed to file an Answer to Plaintiffs
Amended Complaint within twenty (20) days of this opinion and order.
By the Court,
A Bert H. Masladrd, J.
Karl E. Rominger, Esquire
For Plaintiff
Jason L. Reimer, Esquire
For Defendants
-5-
EARL LLOYD NICHOLAS, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
V. : CIVIL ACTION—LAW
AYERS, LCC d.b.a SERVPRO,NCC : NO: 11-8208
SCOTT AYERS;
DAN AYERS,
Defendants : JURY TRIAL DEMANDED --0:C
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-G T' Cn CD
PRAECIPE TO DISCONTINUE '
y`7
TO THE PROTHONOTARY:
,7D
Kindly mark the above captioned case as settled and discontinued with prejudice on
behalf of the Plaintiff.
Date: Ca ` i 3 Respectfully submitted,
INGER & ASSOCIATES
Karl . Rominger, Esquire
155 South Hanover Street
Carlisle, PA 17013
(717) 241-6070
Supreme Court ID # 81924
Attorney for Plaintiff
"iii DEC —6 PH r0
s i rtt..��dul cou"I f y
F'ENN YLVANIA
EARL LLOYD NICHOLAS, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
V. : CIVIL ACTION—LAW
AYERS, LCC d.b.a SERVPRO, NCC : NO: 11-8208
SCOTT AYERS;
DAN AYERS,
Defendants : JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
1, Karl E. Rominger, Esquire, do hereby certify that I served a copy of the Praecipe to
Discontinue upon the following by depositing same in the United States mail, postage prepaid, at
Carlisle, Pennsylvania, addressed as follows:
Barbara A. Zemlock, Esquire
Post& Schell, PC
17 North Second Street, 12th Floor
Harrisburg, PA 17101
Respectfully submitted,
ROMINGER& ASSOCIATES
Karl . Rominger, Esquire
155 outh Hanover Street
Carlisle, PA 17013
(717) 241-6070
Supreme Court ID # 81924
Attorney for Plaintiff
Dated: 61