HomeMy WebLinkAbout02-0685PETER KRIZ, Individually and as a
Partner and THE ZOO ZONE, a
Pennsylvania Business Parmership,
Plaintiffs
VS.
JAMES PRESCOTT, Individually and as a
Partner and Jointly with JUDE
PRESCOTT, and JOELLE KRIZ,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
NOTICE TO DEFEND AND CLAIM RIGHTS
You have been sued in Court. If you wish to defend against the claims set forth in the
following papers, 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. 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, Fourth Floor
Cumberland County Courthouse
i Courthouse Square
Carlisle, Pennsylvania 17013-3387
Telephone: (717) 240-6200
NOTICIA
Le hah 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 pot
obogado 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
entrara una orden contra usted sin previo aviso o notificacion y por cualquiere queja o alivio que
es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o ostros
derechos importantes para usted.
LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO
TIENE ABOGADO O SI NO TIENE EL D/NERO 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, Fourth Floor
Cumberland County Courthouse
1 Courthouse Square
Carlisle, Pennsylvania 17013-3387
Telephone: (717) 240-6200
Respectfully submitted,
Date:
By:
Att(~rnef/for Plaimiffs
_1_12 .L-W_alnut Street
Harrisburg, PA 17101x,----~
(717) 238-4777
(717) 238-4793 (Facsimile)
I.D. # 23859
PETER KRIZ, Individually and as a
Partner and THE ZOO ZONE, a
Pennsylvania Business Partnership,
Plaintiffs
VS.
JAMES PRESCOTT, Individually and as a
Partner and Jointly with JUDE
PRESCOTT, and JOELLE KRIZ
Defendants
: NO.
:
.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - EQUITY
COMPLAINT
Plaintiffs, Peter Kriz and The Zoo Zone, bring this action seeking dissolution by Court Order
of the partnership, The Zoo Zone, and seeking to temporarily, preliminarily and permanently to
enjoin the Defendants, James Prescott and Jude Prescott, from entering the business premises or
breaching their fiduciary duties to Plaintiffs and to compel Defendant, James Prescott, to account
for all monies and/or properties he knowingly and intentionally diverted from the business, and also
seeking substantial damages for Defendant's wrongful conduct.
The Parties
1. Plaintiff, Peter Kriz, is an adult individual currently residing at 5 Klinger Lane,
Shermansdale, Perry County, Pennsylvania 17090.
2. Plaintiff, The Zoo Zone, is a Pennsylvania business partnership, conducting business
at the Camp Hill Mall, Camp Hill, Cumberland County, Pennsylvania.
3. Defendant, James H. Prescott, is an adult individual whose last known address is 670
Laurel Drive, Boiling Springs, Cumberland County, Pennsylvania 17007.
4. Defendant, Jude Prescott, is an adult individual whose last known address is 670
Laurel Drive, Boiling Sprints, Cumberland County, Pennsylvania 17007.
o
10.
Defendant, Joelle Kriz, is an adult individual whose last known address is 5 Klinger
Lane, Shermansdale, Perry County, Pennsylvania 17090.
On or about March 27, 2001, Plaintiff Kriz and Defendant James Prescott entered
into a written agreement of partnership to operate a retail pet store trading as The Zoo
Zone. (A copy of such written agreement is attached hereto, marked as Exhibit "A"
and incorporated herein by reference thereto).
Among other things, the agreement provides as follows:
That the parmership shall commence as of March I0, 2001, and
continue until terminated by the Agreement or operation of law
(Paragraph 5);
That the parties shall contribute capital in equal shares (Paragraph 6);
That the capital account of each partner shall consist of an initial
contribution, plus additional contributions induced by distributions in
reduction of partnership capital and each partner's percentage share
of losses, if such losses are charged to capital accounts (Paragraph 8);
No partner shall receive any salary for services rendered to the
partnership, except as specifically and first approved by each of the
partners; and
A formula for valuation of a partner's interest upon termination for
death or incapacity of a partner (Paragraph 21).
On or about March 29, 2001, PlaintiffKriz made his agreed upon capital contribution
in the amount of $23,000.00.
Plaintiff Kriz's capital contribution was deposited into accounts established by the
partnership.
To date, Defendant, James Prescott, has failed to make any deposit or contribution
of capital as required by the partnership agreement.
Page -3-
11. Commencing on March 29, 2001 and continuing thereafter, Defendant, James
Prescott, began to withdraw funds from the partnership account.
12. Plaintiffs believe, and therefore aver, that Defendant, James Prescott, converted such
funds to his personal use or to the use of others.
13. Plaintiffs believe, and therefore aver, that Defendant, James Prescott, wrote checks
or made withdrawals from the partnership account, as follows:
Date Payee Memo Amount
3/29/01 Cash Electrical $2,500.00
4/1/01 David Attridge Grooming $300.00
4/2/01 Cash Debit $200.00
4/5/01 Cash $1,500.00
4/6/01 Cash $1,000.00
4/9/01 Cash $600.00
5/4/01 Cash (CK# 1040) $1,000.00
5/26/01 B.J.'s (CK# 1038) $476.99
5/26/01 B.J.'s (CK# 1039) $141.06
6/4/01 Sprint Local $325.75
14. Plaintiffs believe, and therefore aver, the Defendant, James Prescott, illegally,
fraudulently and contrary to the rights and obligations owing to the partnership and
Plaintiffs, converted such funds and other monies and assets to his own use or to the
use of others.
15. In addition to the funds set forth in paragraph 12 above, Plaintiffs believe, and
therefore aver, that Defendant, James Prescott, received a check from the
partnership's landlord in the amount orS 10,666.66 and deposited said sums into his
own personal account or the account of others.
Page -4-
16. Defendant, James Prescott, subsequently deposited only $7,000.00 of the sum
referenced in paragraph 14 above into the partnership account.
17. Defendant, James Prescott, failed to deposit or account for the remaining balance of
$3,666.66.
18. Plaintiffs believe, and therefore aver, that Defendant, James Prescott, has converted
the sum of $3,666.66 to his own use, contrary to his obligations owed to the
partnership and Plaintiffs and in contravention of the parties' agreements thereto.
19. Plaintiffs believe, and therefore aver, that in July, 2001, Defendant, James Prescott,
entered into the premises leased by the partnership and removed materials and
inventory, to wit: Wood flooring and denim shirts.
20. Plaintiffs believe, and therefore aver, that Defendant, James Prescott, liquidated said
assets and converted the funds to his own use.
COUNT I
STATUTORY DISSOLUTION
Peter Kriz v. James Prescott
21. The averments of Plaintiffs' Complaint set forth in paragraphs 1 through 20,
inclusive, are incorporated here by reference thereto as if fully set forth.
22. Defendant, James Prescott, has breached the agreement entered into with Plaintiff
Kriz, as follows:
a. Failing to make his required capital contributions and additional
contributions;
b. Converting partnership funds and assets to his own use and/or the use
of others;
Page -5-
c. Engaging in conduct which tends to affect prejudicially the carrying
on of the partnership business; and,
d. Willfully and/or persistently committing breaches of the parmership
agreement by failing to make any capital contributions; converting
funds and assets to his own use or the use of others; allegedly paying
himself for services rendered on behalf of the partnership without
obtaining the prior specific approval of all partners.
23. Defendant, James Prescott, has willfully and/or persistently conducted himself in
matters relating to the partnership business in such a way that it is not reasonably
practicable to carry on the business in partnership with him, by:
a. Failing to make his required capital contributions;
b. Failing to make any additional capital contributions;
c. Converting partnership funds to his personal use and/or the use of
others; and,
d. Converting partnership assets to his personal use and/or the use of
others.
WHEREFORE, Plaintiffs request the following:
a. That an Order issue dissolving the partnership as of March 29, 2001;
b. That an Order issue permitting Plaintiff, Peter Kriz, to continue to operate,
control and manage the business and business affairs of the dissolved
partnership;
c. That an Order issue enjoining Defendants, James Prescott and Jude Prescott,
from entering the business premises;
Page -6-
24.
25.
d. That an Order issue enjoining the Defendants, James Prescott and Jude
Prescott, from interfering in the control, management, operations and other
affairs of the business known as The Zoo Zone;
e. That an Order issue requiting the Defendant, James Prescott, to account for
all sums, funds, assets obtained, converted, disposed, liquidated, expended
and/or received by him for himself or for any other person from March 10,
2001 until the present;
f. That an Order issue restraining Defendants, James Prescott and Jude Prescott,
from collecting, receiving or contracting for any of the debts due and owing
to the partnership during the pendency of this action;
g. Alternatively, that a receiver be appointed to operate the business pending a
final determination of the parties' respective tights; and,
h. That an Order be entered granting such other relief as may be deemed just
and proper.
COUNT II
BREACH OF CONTRACT
Peter Kriz v. James Prescott
Plaintiffs incorporate by reference their allegations in the preceding paragraphs 1
through 23 as if fully set forth herein.
Defendant, James Prescott, as a partner in the entity trading as The Zoo Zone, was
in a position of trust and confidence to his partner, Plaintiff Peter Kriz.
Page -7-
26. In his capacity as partner, Defendant, James Prescott, had access to the business
accounts and premises.
27. Defendant, James Prescott, breached his fiduciary duty to PlaintiffKriz by converting
partnership funds to his own use and/or the use of others.
28. Defendant, James Prescott, breached his fiduciary duties owed to Plaintiff Kriz by
receiving monies owed to the partnership and failing to properly deposit all of the
funds received into the partnership accounts.
29. Defendant, James Prescott, breached his fiduciary duties owed to Plaintiff Kriz by
using parmership funds to pay his personal obligations and/or the obligations of third
parties without the knowledge and/or prior consent of Plaintiff.
30. Plaintiffs believe that Defendant, James Prescott, has converted to his own use, the
use of others or failed to account for parmership funds and assets in an amount of
approximately $13,029.00.
31. Plaintiffs believe, and therefore aver, that Defendant, James Prescott, may have
breached his fiduciary duties owed to Plaintiffs by converting assets and other funds
of the partnership, which assets and funds cannot be determined without an
accounting.
WHEREFORE, Plaintiffs hereby request judgment in his favor and against Defendants,
James Prescott and Jude Prescott, as follows:
a. Temporarily, preliminarily and permanently enjoining Defendants from
receiving partnership funds or assets, disposing of partnership funds or assets,
Page -8-
32.
33.
34.
contracting with third parties on behalf of the partnership or representing
themselves to have the capacity to bind the partnership whether for loans,
services or contracts.
b. Order an accounting by Defendant, James Prescott, of all funds and assets of
the partnership used and converted by him to his personal use or the use
others; and,
c. Enter judgment in favor of Plaintiffs and against Defendants, James Prescott
and Jude Prescott, in the amount of $13,029.00, plus such other sums as are
revealed to be owed as a result of the accounting, together with costs, interest,
attorney's fees, punitive damages and such further relief as the Court deems
just and proper.
COUNT III
CONVERSION
Peter Kriz and The Zoo Zone v. James Prescott
Plaintiffs incorporate by reference thereto their allegations in the preceding
paragraphs 1 through 31 as if fully set forth herein.
Commencing on March 29, 2001, Defendant, James Prescott, made cash withdrawals
from the partnership account, which funds he converted to his own use or the use of
others.
Defendant, James Prescott, drew checks on the partnership account to pay for his
personal debts and obligations.
Page -9-
35. Defendant, James Prescott, drew checks or authorized debits against the partnership
account to pay funds to himself, his creditors or to pay to third parties who were not
entitled to such funds or the benefit of such payments from the partnership.
36. Defendant, James Prescott, received from the partnership's landlord a check in the
amount of $10,666.66, which represented one-third of the amount due from the
landlord for leasehold improvements.
37. Defendant, James Prescott, deposited the check into his own account.
38. Defendant, James Prescott, deposited $7,000.00 into the partnership account.
39. Defendant, James Prescott, has refused to pay the remaining $3,666.66 into the
partnership.
40. Defendant, James Prescott, has received, converted, misappropriated and wrongfully
diverted funds from the partnership in the amount of approximately $13,029..00.
41. Plaintiffs believe, and therefore aver, that Defendant, James Prescott, has converted
and misappropriated additional funds and assets which cannot be ascertained without
an accounting by Defendant.
WHEREFORE, Plaintiffs request judgment in his favor and against Defendant, James
Prescott, as follows:
a.
b.
In the amount of $13,029.00, plus interest;
That Defendant be ordered to account for all the funds and/or assets
misappropriated by Defendant;
Page -10-
c. That Defendant be ordered to pay to Plaintiffs such funds and return said
assets as are determined to be due as a result of said accounting;
d. That judgment be entered against Defendant for all costs of suit, reasonable
attorney's fees and punitive damages;
e. The Court grant such other relief as it deems just and proper.
COUNT IV
CONSTRUCTIVE TRUST
Peter Kriz v. James Prescott and Jude Prescott
42. Plaintiffs incorporate the allegations set forth in paragraphs 1 through 41 as if fully
set forth herein.
43. Defendant, Jude Prescott, is the wife of Defendant, James Prescott.
44. Plaintiffs believe, and therefore aver, that Defendant, James Prescott,
misappropriated the funds and assets as alleged herein and used said funds to the
mutual benefit of himself and his wife, Jude Prescott, without Plaintiffs' knowledge
and permission.
45. The use of such misappropriated funds and assets by Defendant, James Prescott,
has benefitted Defendants, James Prescott and Jude Prescott, to the detriment of
Plaintiffs.
WHEREFORE, Plaintiffs request that any sums found to be due and owing as a result of
the wrongful actions of Defendant, James Prescott, be declared to be a constructive trust against
the real and personal assets of Defendants, James Prescott and Jude Prescott, jointly and
Page - 11-
individually, together with costs of suit, interest, attorney's fees and such other relief as this Court
deems just and proper.
COUNT V
DECLARATORY JUDGME~NT
Peter Kriz and The Zoo Zone v. James Prescott, Jude Prescott and Joelle Kri?
46. Plaintiffs incorporate by reference thereto the aveimems set forth in paragraphs 1
through 45 as if fully set forth herein.
47. On or about May 16, 2001, Plaintiff Kriz and Defendam, James Prescott, executed
a lease for certain premises in the Camp Hill Mall for purposes of operating a
business for the retail sale of pets and pet supplies.
48. The indenture of the lease executed for the premises idemified the tenam as a
partnership consisting of Plaimiff, Peter Kriz and Defendams, James Prescott, Jude
Prescott and Joelle Kriz.
49. Plaintiffs represem and aver that Defendam Jude Prescott and Defendant Joelle
Kriz are not proper partners, nor were they intended to be partners.
50. Neither Defendant Jude Prescott nor Defendant Joelle Kriz have made any capital
contributions to the partnership.
51. Neither Defendant Jude Prescott nor Defendant Joelle Kriz were ever voted into the
partnership by the existing partners at that time.
52. Defendant Jude Prescott and Defendant Joelle Kriz, as the respective spouses of
Defendam James Prescott and Plaintiff Peter Kriz, were to execute the indenture
Page - 12-
of lease solely for the purpose of guaranteeing the monetary performances and
obligations of the partnership.
53. The erroneous identification of Defendant Jude Prescott and Defendant Joelle Kriz
may confer upon them an interest in the partnership to which they are not entitled,
cloak them with the authority or apparent authority to act on behalf of the
partnership and be construed to have effectuated an amendment to the partnership
agreemem by conduct, all of which will operate to the detrimem of the conduct of
the business and result in a dilution of the interest of Plaintiffs.
WHEREFORE, Plaintiffs request your Honorable Court enter an Order declaring that,
as among the parties hereto, Defendam Jude Prescott and Defendant Joelle Kriz are not partners
under the te~ms of the partnership agreemem and have no interest in the partnership or authority
to act on behalf of the partnership based upon the erroneous designation of them as partners in the
leasehold agreemem.
Date:
(717) 2384777
(717) 238-4793 (Facsimile)
Pa. I.D. No. 23859
Page - 13-
EXHIBIT "A"
Partnership Agreement
1. The Zoo Zone
2. Peter W. Kriz
James H. Prescott
3. 304 Camp Hill Mall
Camp Hill, PA 17011
4. Pet Retail Establishment
5. Duration of the partnership will begin 10 March 01 until temxinated by this
agreement, or by operations of law.
6. Contribution of Capital. The partners shall contribute capital in equal shares.
Peter W. Kriz 50%
James H. Prescott 50%
7. Allocation of Depreciation or Gain or Loss on Contributed Property. The partners
understand that, for income tax purposes, the partnership's adjusted basis of some
of the contributed property differs t~om fair market value at which the property
was accepted by the partnership. However, the partners intend that the general
allocation role of the Internal Revenue Code will apply, and that the depreciation
or gain or loss arising with respect to this property shall be allocated
proportionately between the partners, as allocated in Paragraph 6 above, in
determining the taxable income or loss of the partnership and the distributive
share of each partner, in the same manner as if such property had been purchased
by the partnership at the cost equal to the adjusted tax basis.
8. Capital Accounts. An individual capital account shall be maintained by each
partner. The capital of each partner shall consist of that partner's original
contribution of capital, as described in Paragraph 6, and increased by additional
capital contributions and decreased by distributions in reduction of partnership
capital and reduced by his share of partnership losses, if these losses are charged
to the capital accounts.
9. Drawing Accounts. An individual drawing account shall be maintained for each
partner. All withdrawals by a partner shall be charged to his drawing account.
Withdrawals shall be limited to amounts unanimously agreed upon by the
partners.
10. Salaries. No partner shall receive any salary for the services rendered to the
partnership except as specifically and first approved by each of the partners.
11. Loans by partners. If a majority of partners consent, any partner may lend money
to the partnership at an interest and terms rate agreed in writing, at the time said
loan is made.
12. Profit and Losses. Net profit of the partnership shall be divided proportionately
between the partners, and the net losses shall be borne proportionately, 50% each.
13. Management. The partners shall have equal rights and control in the management
of the partnership.
14. Books of Accounts. The partnership shall maintain adequate accounting records.
All books, records, and accounts of the partnership shall be open at all times to
in~qpection by all partners, or their designated representatives.
15. Accounting Basis. The books of account shall be kept on a cash basis.
16. Fiscal Year. The books of account shall be kept on a fiscal year basis,
commensing January 1 and ending on December 31, and shall be closed and
balanced at the end of each year.
17. Annual Audit. The books of account shall be audited as of the close of each fiscal
year by an accountant chosen by the partners.
18. Banking. All funds of the partnership shall be deposited in the name of the
partnership into such checking or savings accounts as designated by the partners.
19. Death or Incapacity. The death or incapacity of a partner shall cause an immediate
dissolution of the partnership.
20. Election of Remaining partner to a Continuous Basis. In the event of a retirement,
death, incapacity, or insanity of a partner, the remaining partners shall have the
right to continue the buiseness of the partnership, either by themselves or in
conjunction with any other person or persons they may select, but they shall pay
to the retiring partner, or to the legal representatives of the deceased or
incapacitated partner, the value of his interest in the partnership.
21. Valuation of the Partner's Interest. The value of the interest of a retiring,
incapacitated, deceased, or insane partner shall be the sum of (a) the partners
capital account, (b) any unpaid loans due to the partner, and (c) the partner's
proportionate share of the accrued net profits remaining undistributed in his
drawings account. No value for goodwill shall be included in determining the
value of the partners interest, unless specifically agreed in advance by the
partners.
22. Payment of Purchase Price. The value of the partner's interest shall be paid
without interest to the retiring partner, or to the legal representative of the
deceased, incapacitated, or insane partner in agreed upon monthly installments,
commensing on the first day of the second month after the effective date of
purchase.
23. Termination. In the event that the remaining partner does not elect to purchase the
interest of the retiring, deceased, incapacitated, or insane partner, or in the event
the partners mutually agree to dissolve, the partnership shall terminate and the
partners shall proceed with reasonable promptness to liquidate the buiseness of
the partnership. Thereafter, all money remaining undistributed in the drawing
accounts shall be paid to the partners. Then the remaining assets shall be
distributed 50% to each partner.
24. This agreement shall be binding upon and inure to the benefit of the parties, their
successor, assigns and personal representatives.
Si~ ~
Witness
State of Pennsylvania
County of Cumberland
~the b~is of ~t~facto~ e~dence) to the ~n(s) who~ ~e(s) ~e sub~d~ to
the ~t~ ~ment ~d ~owledged to me t~t they execut~ the ~e ~ ~thek
authored capaci~(ies), ~d ~t by hgthek sigmtme(s) on the ~mem the person(s)
acted, executed the ~ment.
~SS ~ ~~.
Si~t I Notada:
I Carme~o J. CtauCio, i,;ot~ry Public
I Lemoyne Boro, Cumberland County
[_~y Commission Expires Feb. 25,
SEAL
Type of ID
Produced ID
VERIFICATION
I, Peter Kriz, verify that the statements made in this pleading are true and correct. I
understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section
4904, relating to unswom falsification to authorities.
Peter Kriz c~ ~/
PETER KRIZ, Individually and as a
Parmer and THE ZOO ZONE, a
Pennsylvania Business Partnership,
Plaintiffs
VS.
JAMES PRESCOTT, Individually and as a
Parmer and Jointly with JUDE
PRESCOTT, and JOELLE KRIZ,
Defendants
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 02-685 CIVIL TERM
: CIVIL ACTION - EQUITY
ACCEPTANCE OF SERVICE
I, JOELLE KRIZ, hereby accept service of the Complaint in Equity filed to the above-
referenced docket number.
Date:
Joelle Kriz
5 Klinger Lane
Shermansdale, PA 17090
SHERIFF'S RETURN - REGULAR
CASE NO: 2002-00685 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
KRIZ PETER ET AL
VS
PRESCOTT JAMES ET AL
DOUGLAS DONSEN , Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
PRESCOTT JUDE the
DEFENDANT
, at 2122:00 HOURS, on the 1st day of March , 2002
at 670 LAUREL DRIVE
BOILING SPRINGS, PA 17007
by handing to
JAMES H. PRESCOTT
a true and attested copy of COMPLAINT & NOTICE
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing 6.00
Service .00
Affidavit .00
Surcharge 10.00
.00
16.00
Sworn and Subscribed to before
me this /3~ day of
/ ~oth-~notary ' '
So Answers:
R. Thomas Kline
03/04/2002
JOHN LYONS
~ D~puty SSeriff
SHERIFF'S RETURN - REGULAR
CASE NO: 2002-00685 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
KRIZ PETER ET AL
VS
PRESCOTT JAMES ET AL
DOUGLAS DONSEN , Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
PRESCOTT JAMES H the
DEFENDANT ,
at 2122:00 HOURS, on the 1st day of March
at 670 LAUREL DRIVE
BOILING SPRINGS, PA 17007
by handing to
, 2002
JAMES H. PRESCOTT
a true and attested copy of COMPLAINT & NOTICE
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing 18.00
Service 5.52
Affidavit .00
Surcharge 10.00
.00
33 . 52
Sworn and Subscribed to before
me this /3 ~ day of
? / Prothonotar~
So Answers:
R. Thomas Kline
03/04/2002
JOHN LYONS
By:
PETER KRIZ, Individually and as a
Partner and THE ZOO ZONE, a
Pennsylvania Business Partnership,
Plaimiffs
VS.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 02-685 CIVIL TERM
JAMES PRESCOTT, Individually and as a :
Partner and Jointly with JUDE PRESCOTT,:
and JOELLE KRIZ, :
Defendants : CIVIL ACTION - EQUITY
To~
NOTICE TO PLEAD
PLAINTIFF PETER KRIS and JOHN F. LYONS, his attorney
You are hereby notified to plead to the attached Counterclaim within twenty (20) days from
service hereof or a default judgment may be entered against you.
I.D. No. 30622
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013-9142
(717) 249-5373
Counsel for Defendants James Prescott
and Jude Prescott
PETER KRIZ, Individually and as a
Partner and THE ZOO ZONE, a
Pennsylvania Business Partnership,
Plaintiffs
VS.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 02-685 CIVIL TERM
JAMES PRESCOTT, Individually and as a :
Parmer and Jointly with JUDE PRESCOTT,:
and JOELLE KRIZ, :
Defendants : CIVIL ACTION - EQUITY
ANSWER AND COUNTERCLAIM
AND NOW, come Defendants James Prescott and Jude Prescott, by and through their
Counsel of Record, Hanft, & Knight, P.C., to file and Answer with New Matter and Counterclaim
to the Complaint filed against them, and in support of which pleading the following statements are
made:
1.
Paragraph 1.
2.
3.
4.
5.
Paragraph 5.
6.
Denied. Defendants are without sufficient information to decide the troth of
Admitted.
Admitted.
Admitted.
Denied. Defendants are withom sufficient information to decide the truth of
Denied. Paragraph 6 is a conclusion of law to which no answer need be filed. In
addition, Exhibit "A" to the Complaint was drafted by Plaintiff Peter Kriz and only to fulfill a
requirement of their commercial landlord. Exhibit"A" differed from the verbal agreement the parties
had and was contrary to the understanding of the parties before and after March 27, 2001 and
contrary to the agreement PlalntiffPeter Kriz and Defendant James Prescott retained Marc Witzig,
Esquire to draft though that draft was never finished or signed. Furthermore, the Notary Seal
attached to the Complaint with Exhibit "A" was not included when the Partnership Agreement was
signed.
7. Admitted that Paragraph 7 recites Paragraphs from Exhibit "A" to the Complaint.
8. Admitted.
9. Admitted.
10. Denied that Defendant James Prescott failed to make any contribution of capital
as required by the Agreement between Mr. Kriz and Mr. Prescott. In addition, Defendant James
Prescott deposited money in the partnership account and paid subcontractors working at the business
location from his own personal funds during the period January through June 2001.
11. Admitted.
12. Denied. Paragraph 12 is a conclusion of law to which no answer need be filed. To
the extent that Paragraph 12 is deemed a factual averment, it is specifically denied and strict proof
thereof is demanded at trial. In addition, Defendant James Prescott denies that any of his withdrawals
were made for purposes of personal use.
13. Admitted.
14. Denied. Paragraph 14 is a conclusion of law to which no answer need be filed. To
the extent that Paragraph 14 is deemed a factual averment it is specifically denied and strict proof
thereof is demanded at trial.
15. Admitted and Denied. Admitted that Defendant James Prescott received a check from
the landlord in the amount of $10,666.66 but denied that Defendant James Prescott deposited said
sum into his own personal account for his own use. Said amounts were deposited into a personal
account as the partnership account had been closed and deposit into his own personal account was
required for Defendant to immediately disburse funds to subcontractors who had performed work
at the partnership location.
16. Admitted. After paying partnership debts of approximately $3,666.66 to
subcontractors Defendant James Prescott deposited the remainder into the partnership account.
17. Denied. Paragraph 17 is a conclusion of law to which no answer need be filed. To
the extent that Paragraph 17 is deemed a factual averment, it is specifically denied and strict proof
thereof is demanded at trial. In addition, Defendant James Prescott has accounted for the remaining
balance of $3,666.66.
18. Denied. Paragraph 18 is a conclusion of law to which no Answer need be filed. To
the extent that Paragraph 18 is deemed a factual averment, it is specifically denied and strict proof
thereof is demanded at trial.
19. Denied. Defendant James Prescott never removed partnership materials and
inventory from the leased premises.
20. Denied. Paragraph 20 is a conclusion of law to which no Answer need be filed. To
the extent that Paragraph 20 is deemed a factual averment, it is specifically denied and strict proof
thereof is demanded at trial.
COUNT I
STATUTORY DISSOLUTION
21. Admitted and Denied. See Answers to Paragraphs 1 through 20 above which are
incorporated herein by reference.
22. Denied. Paragraph 22 is a conclusion of law to which no Answer need be filed. To
the extent that Paragraph 22 is deemed a factual averment, it is specifically denied and strict proof
thereof is demanded at trial.
23. Denied. Paragraph 23 is a conclusion oflaw to which no Answer need be filed. To
the extent Paragraph 23 is deemed a factual averment it is specifically denied and strict proof thereof
is demanded at trial.
WHEREFORE, Defendants James Prescott and Jude Prescott request that the Court deny
Plaintiffs their requested relief and that the Court award Defendants their costs, including Counsel
fees.
COUNT II
BREACH OF CONTRACT
24. Admitted and Denied. See Answers to Paragraphs 1 through 23 above which are
incorporated herein by reference.
25. Admitted.
26. Admitted. By way of further Answer, Partner Peter Kriz also had access to the
business account and premises.
27. Denied. Paragraph 27 is a conclusion of law to which no answer need be filed. To
the extent that Paragraph 27 is deemed a factual averment, it is specifically denied and strict proof
thereof is demanded at trial.
28. Denied. Paragraph 28 is a conclusion oflaw to which no Answer need be filed. To
the extent that Paragraph 28 is deemed a factual averment, it is specifically denied and strict proof
thereof is demanded at trial.
29. Denied. Paragraph 29 is a conclusion of law to which no Answer need be filed. To
the extent that Paragraph 29 is deemed a factual averment, it is specifically denied and strict proof
thereof is demanded at trial.
30. Denied. Paragraph 30 is a conclusion oflaw to which no Answer need be filed. To
the extent that Paragraph 30 is deemed a factual averment, it is specifically denied and strict proof
thereof is demanded at trial.
31. Denied. Denied. Paragraph 31 is a conclusion of law to which no Answer need be
filed. To the extent that Paragraph 31 is deemed a factual averment, it is specifically denied and
strict proof thereof is demanded at trial.
WHEREFORE, Defendants James Prescott and Jude Prescott request that the Court deny
Plaintiffs their requested relief and that the Court award Defendants their costs, including Counsel
fees.
COUNT III
CONVERSION
32. Admitted and Denied. See Answers to Paragraphs 1 through 31 above which are
incorporated herein by reference.
33. Denied. Paragraph 33 is a conclusion of law to which no Answer need be filed. To
the extent that Paragraph 33 is deemed a factual averment, it is specifically denied and strict proof
thereof is demanded at trial.
34. Denied. Paragraph 34 is a conclusion of law to which no Answer need be filed. To
the extent that Paragraph 34 is deemed a factual averment, it is specifically denied and strict proof
thereof is demanded at trial.
35. Denied. Paragraph35isaconclusionoflawtowhichnoAnswerneedbefiled. To
the extent that Paragraph 35 is deemed a factual averment, it is specifically denied and strict proof
thereof is demanded at trial.
36. Denied. Paragraph 36 is a conclusion of law to which no Answer need be filed. To
the extent that Paragraph 36 is deemed a factual averment, it is specifically denied and strict proof
thereof is demanded at trial.
37. Admitted that Defendant James Prescott deposited a check into his own account.
Also see Answer to Paragraph 15 and 16 above.
38. Admitted.
39. Admitted and Denied. Admitted that Defendant James Prescott has refused to pay
$3,666.66 to the partnership account. Denied that he had any legal liability for such amount.
40. Denied. Paragraph 40 is a conclusion of law to which no Answer need be filed. To
the extent that paragraph 40 is deemed a factual averment, it is specifically denied and strict proof
thereof is demanded at trial.
41. Denied. Paragraph41 is a conclusion oflaw to which no Answer need be filed. To
the extent that Paragraph 41 is deemed a factual averment, it is specifically denied and strict proof
thereof is demanded at trial.
WHEREFORE, Defendants James Prescott and Jude Prescott request that the Court deny
Plaintiffs their requested relief and that the Court award Defendants their costs, including Counsel
fees.
COUNT IV
CONSTRUCTIVE TRUST
42. Admitted and Denied. See Answers to Paragraphs 1 through 41 above which are
incorporated herein by reference.
43. Admitted.
44. Denied. Paragraph 44 is a conclusion of law to which no Answer need be filed. To
the extent that Paragraph 41 is deemed a factual averment, it is specifically denied and slxict proof
thereof is demanded at trial.
45. Denied. Paragraph 44 is a conelusion oflaw to which no Answer need be filed. To
the extent that Paragraph 41 is deemed a factual averment, it is specifically denied and strict proof
thereof is demanded at trial.
WHEREFORE, Defendants James Prescott and Jude Prescott request that the Court deny
Plaintiffs their requested relief and that the Court award Defendants their costs, including Counsel
fees.
COUNT V
DECLARATORY JUDGMENT
46. Admitted and Denied. See Answers to Paragraphs 1 through 45 above which are
incorporated herein by reference.
47. Admitted.
48. Admitted and Denied. Admitted that the indenture of the lease for the premises
identified the tenant as Peter Kriz, Joelle Kriz, James Prescott, and Jude Prescott. Denied that Joelle
Kriz or Jude Prescott were ever partners in the business operation.
49. Admitted and Denied. See Answer to Paragraph 48 above. In addition, Paragraph
49 is a conclusion of law to which no Answer need be filed. To the extent that Paragraph 49 is
deemed a factual averment, it is specifically denied and strict proof thereof is demanded at trial.
50. Admitted. Neither Defendant Jude Prescott nor Defendant Joelle Kriz have any
capital accounts for the partnership nor were they intended to be partners.
51. Admitted.
52. Denied. Paragraph 52 is a conclusion oflaw to which no Answer need be filed. To
the extent that Paragraph 52 is deemed a factual averment, it is specifically denied and strict proof
thereof is demanded at trial.
53. Denied. Paragraph 53 is a conclusion of law to which no Answer need be filed. To
the extent that Paragraph 53 is deemed a factual averment, it is specifically denied and strict proof
thereof is demanded at trial.
WHEREFORE, Defendants James Prescott and Jude Prescott request that the Court deny
Plaintiffs their requested relief and that the Court award Defendants their costs, including Counsel
fees.
COUNTERCLAIM
54. Paragraphs 1 through 53 above are incorporated herein by reference as if fully stated.
55. Defendant James Prescott made contributions to the partnership in the following
amounts: a $6,000.00 savings to the business because the landlord agreed to waive the standard
security deposit; $32,000.00 as remodeling funds given to the business by the landlord and resulting
from the exceptional negotiations accomplished by Defendant James Prescott; and a cash
contribution of $8,319.43 made in various deposits from January 2001 to early June 2001.
Defendant James Prescott made contributions in excess of that made by PlaintiffPeter
56.
Kriz.
57.
On or about June 6, 2001 PlaintiffPeter Kriz changed the locks on the premises of
the business operated by the partnership and has denied Defendant James Prescott access to oversee
and protect Defendant Prescott's interest in the partnership.
58. On or about June 13, 2001, Plaintiff Peter Kriz and Defendant James Prescott met
in the law office of Marc Witzig, Esquire, and there they agreed that the remainder of remodeling
funds of approximately $22,000.00 would be held by Mr. Witzig and not disbursed unless Plaintiff
Peter Kriz and Defendant James Prescott agreed to authorize the disbursements.
59. Since March 2001, Plaintiff Peter Kriz has used partnership assets to purchase snakes,
hamsters, fish, and other animals that were never delivered or transported to the business location.
60. At various times since February 2001, PlaintiffPeter Kriz has made decisions without
consultation with Defendant James Prescott, including decisions on lease of equipment,
disbursement of remodeling funds, and other business decisions.
61. PlaintiffPeter Kriz has been improperly operating as The Zoo Zone, a fictitious name
registered only to Defendant James Prescott.
62. Plaintiff Peter Kriz has defamed Defendant James Prescott by making false
accusations to numerous third parties that Defendant James Prescott stole money from the
partnership.
63. The actions taken by Plaintiff Peter Kriz against the interest of Defendant James
Prescott in the partnership business were taken without legal privilege and without legal authority
either by way of Court Order or agreement with Defendant James Prescott.
WHEREFORE, Defendant James Prescott requests that the Court grant him the following
relief:
An Order dissolving the partnership;
An Order permitting Defendant James Prescott to operate, control, and
manage the business and business affairs of the dissolved partnership;
An Order enjoining Plaintiffs, Peter Kriz and Joelle Kriz, from entering the
business premises;
An Order enjoining the Plaintiffs, Peter Kriz and Joelle Kriz, from interfering
with Defendant James Prescott in the control, management, operations, and
other affairs of the business known as The Zoo Zone.
An Order requiring that the Plaintiffs, Peter Kriz and Joelle Kriz, provide an
accounting for all invoices and bills, and all withdrawals for salary or
payment to any person, of sums, funds, assets obtained, converted, disposed,
liquidated, expended, and/or received by him for himself, for the business
known as Zoo Zone, or for any other person from March 10, 2001 to the
present;
An Order restraining Plaintiffs, Peter Kriz and Joelle Kriz, from collecting,
receiving, or contracting for any of the debts due and owing to the parmership
during the pendency of this action;
Alternatively, that a receiver be appointed to operate the business pending a
final determination of the parties' respective rights; and
H. An Order granting such other relief as the Court deems to be appropriate.
HANFT & KNIGHT, P.C.
Attorney I.D. No. 30622
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013
(717) 249-5373
Counsel for Defendants James Prescott and
Jude Prescott
PETER KRIZ, Individually and as a
Partner and THE ZOO ZONE, a
Pennsylvania Business Partnership,
Plaintiffs
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
vs. : NO. 02-685 CIVIL TERM
:
JAMES PRESCOTT, Individually and as a :
Partner and Jointly with JUDE PRESCOTT,:
and JOELLE KRIZ, :
Defendants : CIVIL ACTION - EQUITY
AFFIDAVIT OF VERIFICATION
I verify that the statements made in the Defendants' Answer with
Counterclaim are tree and correct. I understand that false statements are subject to the
penalties of 18 Pa. C. S. Section 4904, relating to unswom falsification to authorities.
Date: April 16, 2002
J~lgrescott
PETER KRIZ, Individually and as a
Partner and THE ZOO ZONE, a
Pennsylvania Business Partnership,
Plaintiffs
VS.
JAMES PRESCOTT, Individually and as a
Partner and Jointly with JUDE PRESCOTT,
and JOELLE KRIZ,
Defendants
1N THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 02-685 CIVIL TERM
: CIVIL ACTION - EQUITY
AFFIDAVIT OF VERIFICATION
I verify that the statements made in the Defendants' Answer with
Counterclaim are tree and correct. I understand that false statements are subject to the
penalties of 18 Pa. C. S. Section 4904, relating to unswom falsification to authorities.
Date: .~prJ.1 16t 2002
PETER KRIZ, Individually and as a
Partner and THE ZOO ZONE, a
Pennsylvania Business Parmership,
Plaintiffs
VS.
JAMES PRESCOTT, Individually and as a
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 02-685 CIVIL TERM
:
.
Partner and Jointly with JUDE PRESCOTT,:
and JOELLE KRIZ, :
Defendants : CIVIL ACTION - EQUITY
AND NOW, this
CERTIFICATE OF SERVICE
~ l~daY of April, 2002, I, Gregory H. Knight, Esquire, hereby
certify that I have this day served the following person with a copy of the Answer with New
Matter and Counterclaim by United States Mail, postage pre-paid, addressed as follows:
John F. Lyons, Esquire
112 Walnut Street
Harrisburg, PA 17101
Attorney I.D. No. 23859
(717) 238-4777
Counsel for Plaintiffs
Gregory H. Knight, Esquire
Attorney I.D. No. 30622
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013
(717) 249-5373
Counsel for Defendants James Prescott and
Jude Prescott
PETER KRIZ, Individually and as a
Partner and THE ZOOZONE, a
Pennsylvania Business Partnership,
Plaintiffs
VS.
JAMES PRESCOTT, Individually and as a
Partner and Jointly with JUDE
PRESCOTT, and JOELLE KRIZ
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 02-685 CIVIL TERM
CIVIL ACTION - EQUITY
ANSWER TO COUNTERCLAIM
COMES NOW, the Plaintiffs, Peter Kriz and The ZooZone, by and through their attorney,
John F. Lyons, Esquire, and respectfully represent and aver as follows:
54. By way of denial, Plaintiffs re-allege the averments of their Complaint, paragraphs
1 through 53, and incorporate them by reference thereto as if fully set forth herein.
55. By the terms of the Partnership Agreement, no partner shall receive any salary for
services rendered to the partnership except as specifically and first approved by each
of the partners. Furthermore, the Partnership Agreement, pursuant to statute, no
partner is entitled to remuneration for acting partnership business. Furthermore, the
Partnership Agreement contemplated contribution of equal capital. The benefits
obtained from the landlord do not amount to capital contributions into the partnership
as required by the Partnership Agreement, nor do such sums properly represent
capital contributions by Defendant James Prescott. By way of further denial, after
reasonable investigation, Plaintiffs are without sufficient information to form a belief
as to the troth of the averment that Defendant James Prescott made cash contributions
of $8,319.43 from January, 2001 to June, 2001 and proof thereof is demanded at trial.
56. Denied. As set forth in the averments of Plaintiffs' Complaint, Defendant James
Prescott made no contributions to capital as required by the Partnership Agreement.
To the contrary, Defendant James Prescott received pathxership assets which he
diverted to his own use and to the use of others and made unauthorized withdrawals
from the partnership account which he put to his own use or the use of others.
57. Denied as stated. As set forth in Plaintiffs' Complaint, Defendant James Prescott,
by his conduct which prejudicially tended to affect the can'ying on of the business,
caused a dissolution of the partnership. Plaintiff Peter Kriz, did not wrongfully cause
the dissolution and may continue the business in the same name pursuant to statute.
Defendant, James Prescott, having wrongfully converted partnership assets to his
own use or the use of others as more fully set forth in Plaintiffs' Complaint, the
aveiments of paragraphs 1 through 53 thereof being incorporated herein by reference
thereto, and removing partnership property from the business premises, was rightfully
excluded in order to properly secure the parmership assets and to promote the
partnership business activities.
58. Denied as stated. It is agreed that on or about June 13,200 I, Plaintiff Peter Kriz and
Defendant James Prescott met in the law offices of Marc Witzig, Esquire. It is
denied there was an agreement that the remainder of the build-out funds of
approximately $22,000.00 would be held by Mr. Witzig and not disbursed unless
both parties agreed to authorized the disbursements. By way of further denial, it is
alleged that such an agreement was without consideration, if it existed. Any such
funds were required to pay subcontractors. By way of further denial, the third
payment in the amount of $10,666.67 has not been paid to Plaintiff, but retained by
landlord to offset lease default obligations incurred due to the excessive delay in
-2-
opening the business premises occasioned by the acts and disruptions of Defendant
James Prescott as alleged in Plaintiff's Complaint.
59. Denied as stated. It is admitted that Plaintiff Peter Kriz has used partnership assets
to purchase snakes, hamsters, fish and other animals which constituted the business
inventory of The ZooZone which is a retail pet store. It is denied that such assets
have not been delivered to the partnership premises.
60. Denied as stated. As set forth in Plaintiffs' Complaint, the conduct of Defendant
James Prescott worked to cause a dissolution of the partnership. As permitted by
statute, Plaintiff Peter Kriz has continued to operate the business. Such dissolution
occurred by conduct occurring on or after March 29, 2001. Thereafter, Plaintiff Peter
Kriz has had to make business decisions, contribute additional capital in an amount
exceeding $50,000.00 and assume liability for various financing agreements pertinent
to the operation of the partnership business.
61. Denied. The partnership name "The ZooZone" is, as set forth in Exhibit "A"
attached to Plaintiffs' Complaint, the trading name and asset of the partnership. It
is specifically denied that The Zoo Zone is registered and belongs solely to Defendant
James Prescott. Rather, the ZooZone was registered by Plaintiff Kriz. In the
alternative, Defendant James Prescott should be estopped from asserting ownership
of the fictitious name The ZooZone by reason of his implied transfer of such name
to the partnership.
62. Denied. The averment in paragraph 62 is a conclusion of law to which no responsive
pleading is required. By way of further denial, Plaintiffs include the averments of
their Complaint, which clearly sets forth that Defendant James Prescott used
partnership assets to pay for personal liabilities, including his grocery bill, a pet
-3-
grooming bill for services to his dog and a cellular telephone bill for a friend. By
way of further denial, Plaintiffs allege that troth is an absolute defense.
63. Denied. By reason of the Pennsylvania statutes pertaining to partnerships, the
wrongful conduct and activities of Defendant James Prescott operated as a
dissolution of the partnership. Pursuant to further statutory provisions, Plaintiff Peter
Kriz, as the mocent parmer, is permitted to continue to operate the business and use
partnership assets for such purposes subject to the statutory conditions contained
therein.
WHEREFORE, Plaintiffs Peter Kriz and The ZooZone respectfully request that the Court
grant their prayer of relief set forth in their Complaint and deny the prayer of relief of Defendants
Prescott as set forth in their Counterclaim.
Date: , % o7-C> ~-
(717) 2384777
(717) 2384793 (Facsimile)
Pa. I.D. No. 23859
-4-
I, Peter Kriz, verify that the statements made in this Pleading are true and correct. I
understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section
4904, relating to unsworn falsification to authorities.
Date:
CERTIFICATE OF SERVICE
I, John F. Lyons, Esquire, attorney for Plaintiff, hereby certify that I have on the date
shown below, served a copy of the foregoing Answer to Counterclaim upon the following and in
the manner indicated below:
FIRST CLASS MAIL, POSTAGE PAID
Gregory H. Knight, Esquire
HANFT & KNIGHT, P.C.
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013-9142
Date:
Harris~
(717) 2384777
(717) 2384793 (Facsimile)
Pa. I.D. No. 23859
PETER KRIZ, Individually and as a
Partner and THE ZOO ZONE, a
Pennsylvania Business Partnership,
Plaintiffs
VS.
JAMES PRESCOTT, Individually and as a
Partner and Jointly with JUDE PRESCOTT,
and JOELLE KRIZ,
Defendants
· IN THE COURT OF COMMON PLEAS OF
· CUMBERLAND COUNTY, PENNSYLVANIA
· NO. 02-685 CIVIL TERM
· CIVIL ACTION - EQUITY
PETITION TO WITHDRAW AS COUNSEl,
AND NOW, comes Hanft & Knight, P.C., by Gregory IH. Knight, Esquire, to Petition the
Court to withdraw as Counsel for Defendants James Prescott and Jude Prescott and in support
thereof asserts the following:
1. The Petitioner is Hanft & Knight, P.C., Counsel :for Defendants James Prescott and
Jude Prescott in the above captioned matter.
2. Respondents are James Prescott and Jude Prescott, named Defendants in this
litigation.
3. The Petitioner has represented the Respondents/Defendants in these proceedings since
April 10, 2002.
4. Despite numerous telephone and letter requests fi:om Petitioner and promises from
the Respondents/Defendants since August 2002, Respondents/iDefendants have failed to attend
scheduled meetings to discuss and prepare legal strategy and options.
5. The most recent response from the Respondents/Defendants to Petitioner was
November 21 or 22, 2002, at which time the Respondents/Defendants promised to schedule a
meeting with Petitioner before December 2002.
6. Despite several telephone calls and three letters dated November 26, 2002, December
20, 2002, and January 29, 2003, none of which were returned a2~ undeliverable, Petitioner has been
unsuccessful in getting any response from the Respondents/Defendants to Petitioner's efforts to
represent Respondents/Defendants.
7. The Respondents/Defendants are responsible :for a substantial balance due the
Petitioner as attorney fees and despite repeated requests, the Respondents/Defendants have not paid
that amount or offered a payment plan.
8. The Rules of Professional Conduct, adopted by Order of the Supreme Court of
Pennsylvania, provide, inter alia, that a lawyer may be granted permission to withdraw from
employment if the representation will result in an unreasonable financial burden on the lawyer or if
the lawyer is discharged. Pa. R.P.C. 1.16(b)(5).
9. Respondents/Defendants have created an unreasonable financial burden on the
Petitioner.
10.
Pursuant to Local Rule 206-2, the Petitioner has sought and received the concurrence
of opposing Counsel for this Petition.
11. The withdrawal of Petitioner as Counsel for the Respondents/Defendants will present
no material adverse effect on the interests of the Respondents/Defi:ndants as this matter has not been
listed for trial and the Respondents/Defendants have ample time to employ replacement counsel,
should they choose to do so.
WHEREFORE, Petitioner requests that the Court enter an order granting it leave to withdraw
as Counsel for Defendants James Prescott and Jude Prescott in this matter.
HANFT & KNIGHT, P.C.
Attorney I.D. No. 30622
19 Brookwood Avenue, Suite 106
Carlisle, PA 1701!3
(717) 249-5373
Attorneys for Defendants James Prescott and
Jude Prescott
VERIFICATION
I, Gregory H. Knight, hereby verify that the facts set forth in the foregoing Petition to
Withdraw as Counsel are tree and correct to the best of my knowledge, information and belief, and
understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904
relating to unswom falsifications to authorities.
DATE:
F:\User Folder~Firm Docs\Gendocs2003X2662-1Petifion.wpd
PETER KRIZ, Individually and as a
Partner and THE ZOO ZONE, a
Pennsylvania Business Partnership,
Plaintiffs
JAMES PRESCOTT, Individually and as a
Partner and Jointly with JUDE PRESCOTT,
and JOELLE KRIZ,
Defendants
· IN THE COURT OF COMMON PLEAS OF
· CUMBERLAND COUNTY, PENNSYLVANIA
· NO. 02-685 CIVIL TERM
· CIVIL ACTION - EQUITY
CERTIFICATE OF SERVICE
AND NOW, this __~ day of February, 2003, I, Gregory H. Knight, Esquire, hereby
certify that I have this day served the following person with a copy of the foregoing Petition to
Withdraw as Counsel, by first class, United States Mail, postage pre-paid, addressed as follows:
John F. Lyons, Esquire
112 Walnut Street
Harrisburg, PA 17101
Attorney for Plaintiffs
James Prescott
670 Laurel Drive
Boiling Springs, PA 17007
Jude Prescott
670 Laurel Drive
Boiling Springs, PA 17007
HANFT & KNIGHT
Attorney ID No. 30622
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013-9142
(717) 249-5373
Attorneys for Respondents/Petitioners
James Prescott and Jude Prescott
PETER KRIZ, Individually and as a
Partner and THE ZOO ZONE, a
Pennsylvania Business Partnership,
Plaintiffs
VS.
JAMES PRESCOTT, Individually and as a
Partner and Jointly with JUDE PRESCOTT,
and JOELLE KRIZ,
Defendants
· IN THE COURT OF COMMON PLEAS OF
· CUMBERLAND COUNTY, PENNSYLVANIA
· NO. 02-685 CIVIl; TERM
· CIVIL ACTION - EQUITY
RULE TO SHOW CAUSE
AND NOW, this '~ ~ ' day of February, 2003, a Rule is entered upon the Respondents,
James Prescott and Jude Prescott to Show Cause why the relief requested in Petitioner's Petition to
Withdraw as Counsel should not be granted. Said Rule returnable within twenty (20) days of service
of this Order.
C¢~
By the Court,
/
James Prescott
Jude Prescott
John Lyons, Esquire, Counsel for Plaintiffs
Jo