HomeMy WebLinkAbout13-5641 THOMAS W. MUNKITTRICK, DVM IN THE COURT OF COMMON PLEAS
and RENEE D. RICHARDS, VMD, CUMBERLAND COUNTY,
PENNSYLVANIA
Plaintiffs
VS. NO.: tvJ Th
MARK D. MEYERHOFF, DVM, ,.
Individually, and ANIMAL
EMERGENCY MEDICAL CENTER,
LLC, Defendants cot
" C7
CONFESSION OF JUDGMENT y '
Ln
Pursuant to the warrant of attorney contained the Lease, a true and correct copy of which
is attached to the Complaint filed in this action, I appear for the Defendants and confess
judgment in favor of the Plaintiffs and against Defendants as follows:
Attorney's fees $ 23,127.50
Sheriff s fees $ 250.00
Prothonotary fees $ 84.50
Deposition fees and costs $ 1,007.27
Miscellaneous costs $ 203.08
TOTAL THROUGH 9/25/13 $ 24,672.35
Aftorn4 for Defendants
0
�4o P A
C 341 W
�, aq (o135
i 0T
TUB A�?'t'
Stephen L. Grose, Esquire r ltl 1 3 2 `l
Attorney LD. No. 31006 (,'UMBERLA.ND CQU'dTy
Saidis Sullivan & Rogers
''#YL�'A�ii�
635 North 12` Street, Suite 400
Lemoyne, PA 17043
Phone: (717) 612 -5802
Fax: (717) 612 -5805
Email: s rg ose@,ssr- attorneys. com Attorneys for Plaintiffs
THOMAS W. MUNKITTRICK, DVM IN THE COURT OF COMMON PLEAS
and RENEE D. RICHARDS, VMD, CUMBERLAND COUNTY,
PENNSYLVANIA
Plaintiffs /�
VS. NO.: 13 - `501 C-tV �T ff M
MARK D. MEYERHOFF, DVM,
Individually, and ANIMAL
EMERGENCY MEDICAL CENTER,
LLC,
Defendants
COMPLAINT FOR CONFESSION OF JUDGMENT
AND NOW, comes the plaintiffs, Thomas W. Munkittrick, DVM and Renee D. Richards,
VMD, by and through their counsel, Saidis Sullivan & Rogers, and files this Complaint for
Confession of Judgment, averring as follows:
1. Plaintiffs, Thomas W. Munkittrick, DVM and Renee D. Richards, VMD
(hereinafter referred to collectively as "Plaintiffs ") are two adult individuals who own real estate
and improvements located at 11 Willow Mill Park Road, Mechanicsburg, Cumberland County,
Pennsylvania (the "Premises ").
2. Defendants are Michael D. Nleyerhoff, DVM, an adult individual, and Animal
Emergency Medical Center, LLC, a Pennsylvania limited liability company (hereinafter referred
to collectively as "Defendants" or "Tenants ").
3. On October 27, 2009, Defendants executed an Agreement of Lease (the "Lease ")
for the Premises for a period of three (3) years. A true and correct copy of the Lease is attached
hereto as Exhibit A and incorporated herein by reference.
4. Defendants terminated the Lease as per its terms, ending October 31, 2012.
5. As a result of Defendants' breach of the Lease, Plaintiffs filed a Complaint for
Confession of Judgment on February 25, 2013 at docket no. 13 -1051, and a Confession of
Judgment was entered on February 25, 2013, in the amount of $26,717.38 (the "First Confessed
Judgment ").
6. On March 27, 2013, Defendants filed a Petition to Strike and /or Open the First
Confessed Judgment.
7. In the Petition, Defendants averred they had meritorious defenses and valid and
meritorious claims for conversion and misappropriation of trade secrets in violation of the
Pennsylvania Uniform Trade Secrets Act, all arising out of the relationship of the Lease.
8. As a result, the Rule to Show Cause was issued on April 3, 2013, indicating that
depositions, if any, should be completed within forty -five (45) days and that a hearing would be
held on Tuesday, June 25, 2013.
9. In response to Plaintiffs' Request for Production of Documents relative to the
claims and defenses, Defendants produced various documents, including a document purporting
to be a fax number list for referral clients and a list of staff employees, including home telephone
number, cell phone number and email address, as well as an indication if they were full or part
time employees.
2
10. In response to Plaintiffs' request to identify witnesses that would be called at the
hearing, Defendants identified seven (7) witnesses, including Dr. Meyerhoff, his wife and five (5)
employees.
11. As a result of the discovery produced, Plaintiffs deposed Dr. Meyerhoff, his wife
and two (2) other employees.
12. As a result of the discovery responses, Plaintiff's filed a Motion in Limine and
Brief in Support of the same on June 17, 2013, requesting that the issues of whether or not
allegedly confidential material was taken was not an adequate defense to the First Confessed
Judgment.
13. On June 21, 2013, Plaintiff filed a Bench Memorandum. On that same date,
Defendants filed an Answer to the Motion in Limine and Brief in Support of the Petition to
Strike and /or Open the First Confessed Judgment, taking the position that the alleged
misappropriation of confidential information (i.e., the fax list and the employee list) was relevant
to the Petition.
14. On June 25, 2013, Defendants filed an Amended Brief in Support of the Petition,
again taking the position that alleged conversion or misappropriation of Defendants' trade secrets
did relate to the Lease and therefore, could be used to establish a meritorious defense.
15. This Court denied the Motion in Limine and the hearing commenced on June 25,
2013. The hearing could not be completed on that day and was continued until July 1, 2013.
16. On July 1, 2013, this Court ordered a stay in proceeding with execution on the
First Confessed Judgment until July 31, 2013.
17. On July 16, 2013, this Court entered an Order denying Defendants' Petition.
3
18. As a result of Defendants' actions in fighting the amounts owed under the Lease,
Plaintiffs were required to expend substantial attorney's fees, costs for depositions, and related
costs, all in the course of collecting the monies owed under the Lease.
19. Plaintiffs made a demand for the additional attorney's fees and costs associated
with the filing of pleadings, taking of depositions, preparing for the hearing, conducting the
hearing and discussions with Defendants' counsel regarding a global settlement from July
through August. No global resolution was reached.
20. On or about September 5, 2013, Defendants paid $26,717.38 in satisfaction of the
First Confessed Judgment. No payment was made with regard to the additional costs and
attorney's fees for all actions taken subsequent to Defendants' filing the Petition and all actions
required for Plaintiffs to defend that Petition and prevail on the same.
21. The additional costs for sheriff's fees, filing fees, photocopies, deposition
transcripts and related costs for preparing exhibits totaled $1,489.35.
22. The additional attorney's fees expended in responding to the Petition, filing of the
Motion in Limine and Brief in Support, filing of Bench Memorandum, preparing for and
conducting the depositions, preparing for and attending two (2) days of hearings totaled an
additional $23,127.50.
23. Paragraph 21(b)(vi) of the Lease provides a Confession of Judgment may be
entered by Plaintiffs for sums due under the Lease, including reasonable attorney's fees and
costs.
24. Paragraph 21(b)(vi) also provides that such authority to confess judgment shall
not be exhausted by one exercise thereof, but judgment may be confessed as aforesaid from time
4
to time as often as any of the said rental and/or other sums shall fall due or be in arrears and such
powers may be exercised after the expiration of the term of the Lease.
25. Plaintiffs are entitled to a judgment by confession in the following amounts:
Attorney's fees $ 23,127.50
Sheriff s fees $ 250.00
Prothonotary fees $ 84.50
Deposition fees and costs $ 1,007.27
Miscellaneous costs $ 203.08
TOTAL THROUGH 9/25/13 $ 24,672.35
26. Demand has been made of Defendants by counsel for Plaintiffs for the amounts in
default under the Lease and Defendants have refused to pay the same.
27. Plaintiffs have not assigned the Lease or any rights thereunder.
28. Judgment has not been entered on the Lease in any jurisdiction other than as
previously noted above in this Complaint.
29. The judgment is not being entered by confession against a natural person in
connection with a consumer credit transaction.
WHEREFORE, pursuant to the warranty for confession of judgment set forth in the
Lease, Plaintiffs demand judgment in their favor and against Defendants in the amount of
$24,672.35, together with continuing interest on the total balance at 1.25% per month from
September 25, 2013, and such other relief as the Court deems fair and just.
Respectfully submitted,
SAIDIS SULLIVAN & ROGERS
Dated: September 4, 2013 By:
STEP EN L. GROSE
Attorney I.D. #31006
5
3'
s
t
�r
3
VERIFICATION
The undersigned, Thomas W. Munkittrick DVM and Renee,D. Richards, VMD „hereby
verify and state that:
1. They are the Plaintiffs herein;
2. The facts set forth in the forgoing Complaint for Confession of Judgment are true i
and correct to the best of theirInowledge, information and belief; and
3. They are aware that false statements herein are made subject to the penalties of 18
Pa. C.S. § 4944, relating to tinsworn falsification to authorities.
Thomas W. Munkittrick, DVM
t
Renee D. Richards, VMD
i.
L
G
y Y
5
j'.
r �
3
t
k
�.
I
�.
-.
t r
AGREEMENT OF LEASE
THIS AGREEMENT OF LEASE, made this 27 day of October,
2009, between Thomas W. Munkittrick, D.V.M. and Renee D.
Richards, V.M.D. Co- Partners, party of the first part
(hereinafter referred to as "Landlord ")
A
N
D
Mark D. Meyerhoff of 127 Nursery Road, Aspers, Pennsylvania
17304 and the Animal Emergency Medical Center, LLC or its
successor (hereinafter collectively referred to as "Tenant ")
WITNESSETH
1. PREMISES. The Landlo hereby leases to the Tenant the
use of the approximately 9,.000 square foot veterinary
office and equipment (hereafter "P.remises ") at 11 Willow
Mill Park Road, Mechanicsburg, Cumberland County,
Pennsylvania, between the hours of 7 :30 PM and 7:30 AM on
regular business days, from 1 :00 PM Saturday until 7;30 AM
Monday on weekends and on a 24 -h6ur basis on all the
following holidays: New Year's Eve, New Year's Day,
Memorial Day, July'4 Labor Day, Thanksgiving, Christmas
Eve and Christmas Day, reserving to the Landlord the right
to use the* -Premises at all other times.
2. TERM. The term of the Lease shall be three (3) years
commencing November 1, 2009 and ending on October 31,
2012, subject to the renewals set forth in paragraph 4.
3. RENT.
A. The rent payable shall be the greater of either Sixty-
Five Hundred ($6,50o.00) dollars or ten (10 %) "percent of
the gross receipts of the Tenant, Animal Emergency Medical
Center, LLC, or its successor, for the previous " calendar
month.
B. The-rent shall be payable in monthly installments in
arrears. Each monthly payment shall be due. on the 20 of
the following month
C:. The initial rent payment shall be due from Tenant to
Landlord or January 20, 2010, and shall be prorated for
the rental due from October 15, 2009 to December 31, 2009.
D. Monthly rent shall be'accompanied by invoices for
Tenant's professional services in numerical order
corresponding with the months or parts thereof for which
rent is being paid.
10 -27 -09 1 DEPOSITION
EXHIBIT l
, 5 - 22•/3 Ctic� .
/J
E. On or before Aprils of the following year, du_ina
which this lease is in effect, Tenant shall provide
Landlord a certified copy of its tax return as filed with
the Internal Revenue Service and Commonwealth of
Pennsylvania in form and substance sufficient to permit
the Landlord to verify the percentage payments required by
this Lease are accurate.
4. RENEWAL, This Lease shall automatically renew for
successive periods of three (3) years if the Tenant is not
at the time in default under this Lease, or unless either
party has given written notice of their election to
terminate the Lease at least six (6) months prior to the
expiration_ of the Lease or any renewal term thereof. Each
renewal term shall be on the same terms, covenants and
conditions herein contained, with the exception that-the
rental amount shall be renegotiated prior to the
expiration of the term.
5. PLACE OF'PAYMENT The'rent payable by Tenant hereunder
shall be paid to Landlord at 11 Willow Mill Park Road,
Mechanicsburg, Pennsylvania. 17050, but no such payment
shall be effective- until actually received by Landlord.
6. SECURITY DEPOSIT: Tenant shall pay Landlord a security
deposit of two thousand ($2,000.00) dollars, which shall
be held by the Landlord for any damage, injuries, repairs
or rent, which are the obligation of the Tenant and which
have not been properly attended to or paid by the Tenant
prior to the end of the term'or the renewal term, as the
case may be.'
7. UTILITIES, YaINTENP.NCE INSURANCE. The Landlord shall
pay for the cost of all utilities, heat, air conditioning,
electricity, janitorial services and building maintenance
and repairs.
In the event Tenant's monthly rent is Sixty -Five Hundred
($6,500.0'0) dollars, Tenant shall reimburse Landlord for
one -half of all the foregoing expenses, In the event
Tenant's monthly rent is calculated on a percentage basis
and exceeds Sixty -Five Hundred ($6,500.00) dollars, Tenant
shall have no responsibility for the foregoing expenses.
If applicable, the Landlord shall bill the Tenant for its
one -half of said expenses, Tenant shall pay the Landlord
within five (5) days of receipt of the bill. Failure of
Tenant to pay within five (5) days, shall result in a ten
(10% percent late charge and shall be an event of
I
]0 -27-09 2
,� i
default .
B. MAINTENANCE AND REPAIRS. Tenant shall maintain the
Premises in a state of good repair. .Each day at 7:30 AM,
Tenant shall surrender the Premises to Landlord in as good
condition as received the previous night, except for
ordinary wear and tear and damage caused by fire, storm or
other natural disasters. All damages done to the
Premises, during the period of Tenant occupancy, other
than damage caused by ordinary wear and tear, fire, storm,
or other natural disaster shall be repaired at the cost of
the Tenant.
9. USE OF EQUIPMENT AND SUPPLIES. Tenant shall be permitted
to use the equipment on the Premises. Any supplies or
medications used by the Tenant shall be charged to the
Tenant at Landlord's cost, plus ten (10�) percent, Tenant
shall pay one -half the maintenance contract on the Idexx
Catalyst Analyzer, Lasercyte, Vett Stat Machine, Idexx
Coga and Idexx Vet Lab, one -half of the cost of the
monthly maintenance on the x -ray equipment. Tenant, shall
pay one -half of repairs on'any other equipment or
appliances being used by the Tenant. Tenant shall pay
one -half the cost of all hazardous and nonhazardous waste
disposal. Tenant further agrees to pay one -half of the
cost of paper goods and one -half of the cost of the credit
card phone line. Tenant shall not be responsible for any
maintenance charges for any periods prior to October 15,
2009 and subsequent to termination of this Lease.
10. INSURANCE.
A. Tenant shall carry professional liability insurance
and shall name Landlord as an additional insured and shall
supply the Landlord with evidence of said insurance at the
time of•the execution of this Lease and upon other
reasonable 'requests by Landlord.
B: Tenant shall obtain acid submit to the Landlord an
insurance policy for $1,000,000,00 public liability, in
form satisfactory to Landlord. Tenant shall keep
insurance in effect during the term of the Lease.
C. Tenant shall cause each insurance policy obtained by
it to provide that the insurance company waives all right
of recovery by way of subrogation against either party in
connection with any damage covered by any policy. Neither
party shall be liable to the other for any damage cause by
fire or any of the risks insured against under any
insurance policy required by this Lease.
D. All insurance required under this Lease shall: (i)
Insure performance by Tenant of the indemnity provisions
10 -27-09 3
of this paragraph, name both parties as coinsured, and
contain a cross liability endorsement. (.ii') Be issued by a
reputable insurance company authorized to do business in
the Commonwealth of Pennsylvania. (iii) Contain_ an
endorsement requiring thirty (30) days' written notice
=rom the insurance company to both parties before
cancellation or change in the coverage, scope, or amount
of any policy. (iv) Each policy, together with evidence of
payment of premiums, shall be deposited with the Landlord
at the commencement of the term and on renewal of'the
policy not less than twenty. (20) days before the
expiration of the term of the policy. (v) Contain a
provision_ that no act or omission of Tenant shall affect
the obligation of the insurer to pay the full amount of
any loss sustained with respect to any policy upon which
Landlord is a named insured.
11 . LIABILITY TO THIRD PARTIES; During the hours in which
Tenant is in possession of the Premises, Tenant agrees to
be responsible for and to relieve Landlord from all
liability by reason of any damage or injury to any person
or thing.whidh may arise from any cause whatsoever; on the.
leased'Premises whether such damage or injury be caused by
or result from the negligence of the Tet.ant,'its servants
or agents to the extent that the Landlord is not protected
by liability insurance purchased by him and to the extent
such damage or injury is not caused by the negligence or
intentional acts of Landlord.'
12. DESTRUCTION -AND RESTORATION. If the Premises are
destroyed or damaged by fire, or other casualty to the
extent that they are untenable in whole or in part, then
Landlord may, at Landlord's option, proceed to rebuild and
restore the Premises, provided that within ten (10) days'
after such damage or destruction Landlord shall, in
writing, notify Tenant of Landlord's intention to do so,
and during the period of such rebuilding or restoration,
the rent shall be abated in the same ratio as the square
footage in the portion of the Premises rendered untenable
shall bear to the total square footage in the Premises,
If Landlord shall reasonably determine that such
destruction :or damage cannot be repaired within thirty
(30) days from the date of notice, it shall so notify
Tenant within ten (10) days. In such event, either
Landlord or Tenant may within ten (1D) days after such
notice, terminate this Lease. If neither party terminates
the Lease during the ten (10) day period, this Lease shall
remain in effect and Landlord shall diligently proceed to
repair or reconstruct the Premises and the rent shall be
10 -27 -09 4
abated as set forth above.
13. CONDEMT.LTT_ON. If the whole or any part of the Premises
shall be taken under - power. of eminent domain or like
power, or sold under eminent threat thereof to any public
authority or private entity having such power, this Lease
shall terminate as to the part of the Premises so taken or
sold, effective as of the date possession is required to
be delivered to such authority or entity. Rent for the
remaining term shall be reduced in the proportion that the
total square footage of the'Premises is reduced by the
taking. If a partial taking or sale (i) substantially
reduces the area of the Premises resulting in the
inability of Tenant to use the Premises for Tenant's
j business purposes, or (ii) renders the building
commercially non - viable to :landlord (in .Landlord's sole
j judgment) , Tenant in the case of (i) and Landlord in the
case of (ii) may terminate this Lease by. notice to the
other party within thirty (30) days after the terminating
party received written notice of the portion to be taken
or sold; to be effective one hundred twenty (120) days
{ thereafter'or when the portion is taken or sold, whichever
IS sooner. All condemnation awards and similar payments
shall be paid and to Landlord, except any amount
separately awarded and paid specifically to Tenant..
14. ASSIGNMENT AND SUBLETTING. Tenant shall not- assign or
sublet al.l or any part of this Lease or the Premises,
without the consent of Landlord, which consent shall not
be unreasonably withheld. Any assignment by operation of
law, attachment or assignment for the benefit of
creditors, shall, at Landlord's option, be inoperative.
Notwithstanding any subletting or assigning, Tenant shall
remain obligated to Landlord for the full and faithful
performance of all terms and conditions of this Lease.
15. TRANSFER BY LANDLORD, The interest -of the Landlord herein
may be assigned in whole and also in one or more parts.
i In the case of any such assignment, the Landlord shall
j advise the Tenant of the name or names of the assignee or
assignees, and Landlord shall have no liability hereunder
from and after the effective date of any such assignment,
except for obligations which may have theretofore accrued.
16. QUIET ENJOYMENT. Landlord covenants to allow Tenant
quietly and peaceably to enjoy possession of the Premises
free from interference or interruption of Landlord or any
other person claiming under or through Landlord, and
Landlord represents to Tenant that it has sufficient
i
10-27-09 5
i
ownership Interest in the Premises to enter 1n-o and terry
out the provisions of this Lease.
1-7. ACCESS . TO PREMISES. Tenant will allow Landlord free
access to the Premises in the event of an emergency and
during Tenant's normal business hours for the purpose of
examining or exhibiting the same, or for any other proper
purpose, and will allow to have placed upon the Premises,
at any time, "For Sale" signs, and during the last six (6)
months of the term of this Lease, "For Rent" signs, and
will not interfere. witri the same.
18. NONLIABILITY OF LANDLORD. 'Landlord shall not be liable
for any damage occasioned by failure of the Premises to be
in repair, nor for any damage done or occasioned by or
from plumbing, gas, water, sprinkler, steam or other pipes
or sewerage, or the bursting, leaking or running of any
tank, washstand,. water closet or waste pipe in, above,
upon or about the Premises or improvements constituting a
part thereof, nor for any damage occasioned by water, snow
or ice being upon or coming through the roof, skylights,
trap door or otherwise.
19, BA2MRUPTCY OR 2NS.OLVENCY . ' I f . any transfer of Tenant's
interest in the Premises created by this Lease shall be
made under execution_ or similar legal process', or if a
petition is filed-by or against Tenant to adjudicate
Tenant as bankrupt or insolvent under any Federal or State
law, or if a receiver or trustee shall be appointed for
Tenant's business or property and such appointment is not
vacated within thirty (30) dayB, or if a petition or
answez is filed by or against Tenant under any provision
of Federal or State law seeking a reorganization of Tenant
or an arrangement with its creditors, or if Tenant makes
an or deed of trust for the benefit , of its
creditors, or if in any other manner Tenant's interest
under this Lease shall pass to another by operation of
law, then, in any'of said events, Tenant shall be deemed
to have committed a material breach of this Lease and an
Event of Default, and Landlord may, at its option,
exercise its remedies under this Lease without prior
notice or further opportunity to cure.
20. NOTICES. A11 notices or other communications pursuant
hereto to any party shall be in writing and shall be'
deemed given when delivered personally, by nationally
recognized overnight carrier - or deposited in the' United
States mail, postage prepaid, return receipt requested,
addressed to the parties at the addresses set out below,
10 -27 -09 s.
or at such other address as provided for by a notice
complying v�ith this paragraph:
if to Landlord: 11 .willow Mi11. Park Road
Mechanicsburg, PA 17050
If to Tenant: 11 willow Mill Park Road
Mechanicsburg, PA 17050
21. DEFAULT.
A. Tenant's Default.
The occurrence of any of the following shall constitute an
Event of Default by Tenant:
(i) Failure to pay rent or.any other sum of money
(including deposits) when due.
(ii) Abandonment and vacation of the Premises (failure to
occupy and operate the Premises for fifteen (15)
consecutive days shall be deemed an abandonment and _.
vacation).
(iii) Failure to perform any other provision of this Lease
if the f ailure to perform is not .cured within ten (10)
days after notice has been given to Tenant. If the
i default cannot reasonably be cured wi thiri ten (10 ) clays,
Tenant shall not be in default of this Lease if Tenant
I commences to cure the default within the ten (10) day
I period and diligently and in good faith continues to cure
the defay.lt; provided, however, that Landlord's interests
in the Premises are not prejudiced in the interim.
Notices given under this.p4ragraph shall specify the
alleged default, and shall. :.demand that Tenant perform the
provisions of this Lease.or,pay the rent that is in
arrears, as the case may be, within the applicable period
of time. No such notice shall be deemed a forfeiture or a
termination of this Lease unless Landlord so elects in the
notice.
B. Landlord's Remedies,,
i Upon the occurrence of an Event of Default by the Tenant,
in addition to any other rights or remedies that Landlord
may have under this Lease or at law or in equity, Tenant
covenants and agrees that Landlord shall have the
following rights:
(i) To accelerate the rent for the term of twelve (12)
months at the rate it is then due and payable under the
terms the Lease, as well as all other charges,
payments, costs and expenses herein agreed to be paid by
Tenant, and any rent or other charges, payments, costs and
i expenses if so accelerated shall, in addition to any and
10 -27 -09 7
I
cif installments Of rent already Cole and - �Da)Tale and in
arrears, and /or any other charge or payment herein
reserved, - included or agreed to be treate or collected as
rent and /or any other charge, expense or cos* herein
erein
agreed to be paid by Tenant which may be due and payable
in arrears, be deemed due and payable as if., by the terms
and provisions of this Lease, such accelerated rent and
other charges, payments, costs and expenses were on that
date payable in advance. in the event Tenant's
obligations continue under this Lease beyond twelve (12)
months, Landlord may, from. -time to time, accelerate and
rent for the term of twelve (12) months as it becomes due
and payable.
(ii) To enter the Premises and without further demand or
notice proceed to distress and sale of the goods, chattels
and personal property there found, to levy the rent and /or
other charges herein payable as rent, and Tenant shall pay
all costs and officers' commissions, including watchmen's
wages and sums chargeable to Landlord, and further
including the five (5 %) percent chargeable by the Act of
Assembly as commissions to the Constable or other person
making the levy and in such case all costs, officers'
commissions and other' charges shall immediately attach -and
become part of the claim of Landlord for rent, and any
tender of rent without said costs, commissions and charges
made, after the issuance of a warrant of distress, shall
not be sufficient to satisfy the claim of Landlord.
(iii) To reenter the Premiees,and remove all persons and
all or any property therefrom either by summary dispossess
proceedings or by any suitable.. act ion or proceeding at
law, without being liable to indictment, prosecution or
damages therefore, and repossess and enjoy the Premises,
together with all additions, alterations and improvements,
upon recovering possession of the Premises by reason of or
based upon or arising out of a default on the part of
Tenant, Landlord may, at Landlord's option, either
terminate this Lease or make such alterations and repairs
as may be'necessary in order to restore the property to
its previous condition, relet and /or operate the Premises
or any part or parts thereof, either in Landlord's name or
otherwise, for a term or terms which may, at Landlord's
option, be less than or-exceed the period which would
otherwise have constituted the balance of the term of this
Lease and other terms and conditions as in Landlord's sole
discretion may seem advisable and to such person or
persons as may, in Landlord's discretion, seem best; upon
each such reletting all rents received by Landlord from
such reletting shall be applied: first, to the payment of
any costs and expenses of such reletting, including
]0 -27-09 g
brokerage fees and attorney's fees and all costs of such
alterations and repairs; second, to the payment of rent
due and unpaid hereunder; and third, to the payment of any
indebtedness other than rent due hereunder from Tenant to
Landlord; and the residue, if any, shall be held by
Landlord and applied in payment of future rent as it may
become due and payable hereunder. If such rentals
received from such reletting during any month shall be
less than that to be paid during that month by Tenant
hereunder, Tenant shall pay any such deficiency to
Landlord. Such deficiency shall be calculated and paid
monthly. No such reentry or taking possession of the
Premises or the making of alterations and /or improvements
thereto or the reletting thereof shall be construed as an
election on the part of Landlord to terminate this Lease
unless written notice of such intention be given to
Tenant. If Landlord chooses to terminate the Lease and to
relet the Premises, Landlord shall use its best efforts to
relet the Premises and to collect the fair rental charged
therefore. Tenant, for Tenant and Tenant's successors and
assigns, hereby irrevocably constitutes and appoints
Landlord as their agent to collect the rents due and to
become due under all subleases of the Premises or any
parts thereof without in any way affecting Tenant's
obligation to pay any unpaid balance of rent due or to
become due hereunder. Notwithstanding any such reletting
without termination, Landlord may, at any time thereafter,
elect to terminate this Lease for such previous breach.
(iv) To cure any default by Tenant at Tenant's cost. If
Landlord at any time, by reason of Tenant's default, pays
any sum or does any reasonable act that requires the
payment of any sum, the sum paid by Landlord shall be due
immediately from Tenant to Landlord at the time the same
is paid, and if paid at a later date, shall bear interest
at the rate of fifteen (150) percent per annum from the
date the sum is paid by Landlord until Landlord is
reimbursed by Tenant. The sum, together with interest on
it, shall be additional rent.
(v) To terminate this Lease and the term hereby created
without any right on the part of Tenant to waive the
forfeiture by payment of any sum due or by other
performance of any condition, term or covenant broken,
whereupon Landlord shall be entitled to recover, in
addition to any and all sums and damages for violation of
Tenant's obligations hereunder in existence at the time of
such termination, damages for Tenant's default in an
amount equal to the amount of the rent reserved for the
balance of the term of this Lease, as well as all other
charges, payments, costs and expenses herein agreed to be
10 -27 -09 9
paid by Tenant, less the _-ir rental value of the Premises
for the remainder of said term, all of which amount shall
be immediately due and payable from Tenant to Landlord.
(vi) -If 'T.enant :shall default in the payment .c - the :rent
herein .res.erved or in the payment of :.:any...ot her _sums due
hereunder :by, Mena-tt, .Tenant hereby authorizes and empowers
.any :,P_rothonota?y or at.torney of` any :court .,o.f record -to
appear for ?'enant in any and all actions which may be
brought for said rent and /ox. said other sums; and /or to
sign for Tenant an agreement for entering in any competent
court an amicable action o!;' actions for the recovery of
said rental and /or Other sums; and in said suits or in
said amicable action or actions to confess judgment
against Tenant for all or any .part of .said rental and /or
said other sums, inclia:d ng "but not limsted : �to _ _t:he amounts
due.:fr.om - Tenant . Zan.dlord under subparagraphs:
and /or „(v:,) of this Paragraph; and for
izitereat .anc_` eti - ts; together with :r•:easo rable .a'torneyI s
fees. Such authority shall: not be exhausted by one
exercise thereof, but judgment may be confessed as
aforesaid from time to time as of ter_ as any of said. rental
and /or other sums shall fall due' or be in arrears, and
such powers may be "exercised as - well after the expiration
of the initial term of this Lease and /or during any
extended or renewal term of this Lease and /or after the
expiration of any extended or renewal term of this Lease.
(vii) When this Lease and' the term or any extension or
renewal thereof shall have been terminated 'on account of
any default by Tenant hereunder, and also when the term
hereby created or any extension or .renewal thereof shall
have expired, it shall be lawful for any attorney of any
court of record to-appear as attorney for Tenant as well
as for all persons claiming: by, through or under Tenant,
and to sign an agreement for entering in any competent
court an amicable action in ejectment against Tenant and
all person claiming by, through or under Tenant and
therein confess judgment for the recovery by Landlord of
possession of the Premises, for which this Lease shall be
sufficient warranty; thereupon, if Landlord so desires, an
appropriate writ of possession.may issue forthwith,
without any prior writ or'praceeding whatsoever, and
provided that if for any reason after such action shall
have been commenced it shala be determined that possession
of the Premises remain in or be restored to Tenant,
Landlord shall have the right for the same default and
upon any subsequent default or defaults, or upon the
termination of this Lease or Tenant's right of possession
as herei nbefore set forth, to bring one or more further
amicable action or actions as hereinbefore set forth to
10- -09 3 0
recover possession of the Premises and cor_fess judgment
for the recovery of possession of the Premises as
hereinbefore provided.
(viii) In any amicable action of ejectment brought
hereon, Landlord shall first cause to be filed in such
action an affi davit made by .Landlord or someone acting for
Landlord, setting forth the .facts 'necessary to authorize
the entry of judgment, of which facts such affidavit shall
be prima facie evidence, and if a true copy of this Lease
(and of the truth of the copy such affidavit shall be
sufficient evidence) shall be filed in such suit, action
or actions, it shall not be necessary to file the original
as a warrant of attorney, any rule of Court, custom or
Practice to the contrary notwithstanding.
(ix) No right or remedy herein conferred upon or reserved
to Landlord is intended to be exclusive of any other right
or remedy herein or by law provided but each shall be
cumulative and.in'additiot.to'every other .right or remedy
given herein or now or hereafter existing at law or in
equity or by statute.
(x) Tenant waives any notice to quit required by any law
now in force or hereafter enacted; and Texz.ant waives its
right to trial by jury.
22. SUBORDINATION; ATTORNMENT AND CERTIFICATES, This Lease is
and shall be subordinate to any existing and all future
mortgages. placed upon the,Premises by Landlord. This
clause shall be self- operative and no further instrument
of subordination shall be.required by any mortgagee or
trustee. Notwithstanding. the foregoing, in confirmation
of such subordination, Tenant shall, at Landlord's
request, promptly execute any requisite or appropriate
certificate, subordination agreement or other document.
Tenant shall execute - return within ten (10) working
days any certificate that Landlord may request, from time
to time, stating that this Lease is unmodified and in full
force and effect, or in full force and effect as modified,
and stating the modification. The certificate also shall
state the amount of monthly rental and the dates to which
the rent has been paid in advance, and the amount of any
security deposit or prepaid rent; that there is no present
default on the part of Landlord, or attach a memorandum
stating any such instance of default; that Tenant has no
right to set off and no defense or oounterclaim against
enforcement of its obligations under the Lease; and that
Tenant has to other notice of any sale, transfer or
assignment of this Lease or of the rentals. Failure to
deliver the certificate within ten (10) working days shall
10 -27 -09
11
be conclusive upon Tenant for the benefit of Landlord and
any successor to Landlord that this Lease is in full force
and effect and has not been modified except as may be
represented by the party requesting the certificate. If
Tenant fails to deliver the certificate within ten (10)
working days, Tenant,. by such failure, irrevocably
constitutes and appoints Landlord as its special attorney -
in -fact to execute and deliver the certificate to any
third party.
Tenant covenants and agrees to attorn to any purchaser at
any foreclosure sale, or to any grantee or transferee
designated in any deed given in lieu of foreclosure.
23. WAIVER. No delay or omission in the exercise of any right
or remedy of Landlord on any default by Tenant shall
impair such a right or remedy or be construed as a waiver.
The receipt and acceptance by Landlord of delinquent rent
shall not constitute a waiver of any other default; it
shall constitute only a waiver of timely payment for the
particular rent payment involved.
Any waiver by Landlord of any default must be in writing
and shall not be a waiver of any default concerning the
same or any other provision of this Lease.
24. ACCORD AND SATISFACTION. No payment by Tenant or receipt
by Landlord of a lesser amount than any payment of rent or
other sum herein stipulated shall be deemed to be other
than on account of the earliest stipulated rent or other
sum then due and payable, nor shall any endorsement or
statement on any check or any letter accompanying any
check or payment as rent be deemed an accord satisfaction,
and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of
such rent or pursue any other remedy provided in this
Lease, at law or in equity.
25. SURRENDER OF PREMISES. Upon the expiration of this Lease
with Tenant in default or earlier termination of this
Lease for any reason, all fixtures, equipment,
improvements and appurtenances attached to or built into
the Premises in such manner as to become part of the
freehold, whether or not by or at the expense of Tenant,
shall become and remain a part of and be surrendered with
the Premises, except that Landlord may elect to require
Tenant, at Tenant's expense, to remove any or all of such
fixtures, equipment, improvements and appurtenances
installed by Tenant, and Tenant shall restore the Premises
10-27-09 12
i
. I
to as good condition as existed on the Commencement Date.
Provided, however, in the event of expiration of the Lease
v,Tith Tenant not then_ in default, Tenant shall be permitted
to remove its trade 'fixtures, cabinets and equipment only
from the Premises. Landlord, at Tenant's expense, shall
restore the walls and floors from which said items are
removed to a condition, which in the sole opinion of the
Landlord, is as good a condition as existed on the
Commencement Date.
26, TIME IS OF THE ESSENCE. Time is of the essence of each
provision of this Lease.
I
27. GOVERNING LAW. The construction of this Lease and the
rights and remedies of the parties hereto, shall be
governed by the law of the Commonwealth of Pennsylvania.
28. AMENDMENTS, ADDITIONS AND CHANGES. No modification_,
amendment, change or addition to this Lease shall be
binding on the parties unless reduced to writing and
signed by their authorized representatives.
29. .ENTIRE AGREEMENT. This Lease contains the entire
understanding between the parties and supersedes any prior
written or oral agreements. There are no'representations,
agreements, arrangements, or understandings, oral or
written; between and among the parties hereto relating to
! the subject matter of this Lease which are not fully
expressed herein.
30. SEVERABILITY. if any term or provision or portion thereof
of this Lease, or application thereof to any person or
circumstance be held invalid, the remainder of said term
or provision and /or-of this Lease shall not be affected
thereby; and, to this end, the parties hereto agree that
the terms and provisions of this Lease are severable.
31. CONSTRUCTION. Wherever the content so requires, the
feminine gender shall be substituted for the masculine,
the masculine for the feminine or the neuter for either;
the singular shall be substituted for the plural and vice
versa. Paragraph headings are for convenience only and do
not constitute a part of this Lease. The terms "Landlord"
and "Tenant" shall mean and include, where required by the
context, all agents, employees, contractors, successors
and assigns of Landlord and Tenant, except where expressly
provided otherwise.
I
10-27 -09 1 3
e r
r.
32, JO-TNT AND SEVEPzT LIABILITY. The liabi ity of Tenant
under this Lease shall be j of nt and several .
33. LEGALLY BINDING. Except as herein otherwise specified,
this Lease shall legally benefit and hirad the parties
hereto and their respective successors and assigns.
34. COUNTERPARTS. This Lease may be executed in any number of
counterparts, each of which shall be deemed to be an
original, but all of.which together shall constitute but
one and the same instrument.
TN WITNESS WHEREOF, the parties hereto, with intent to be
legally bound, hereby have hereunto set the -_ hands and seals
the day and year first above written.
A'ITNESS LANDLORD
f
Thomas W. Munkittrick, D.V.M.,
Co- Partner
Renee D. Richards, V.M,D.,
Co- Partner
WITNESS TENANT
Mark D. i P_ ho f f
Animal Bmergenpy Medical Center., LL
UV Authorized Member
70.27 -09 14
CERTIFICATE OF SERVICE
I, Stephen L. Grose, Esquire, one of the attorneys for plaintiffs, Thomas W. Munkittrick,
DVM and Renee D. Richards, VMD, hereby certify that I have served the foregoing paper upon
counsel of record this date by depositing a true and correct copy of the same in the United States
mail, first -class postage prepaid, addressed as follows:
Peter M. Good, Esquire
Caldwell & Kearns
3631 North Front Street
Harrisburg, PA 17110 -1533
SAIDIS SULLIVAN & ROGERS
By: 2e_:�7� x
tephen L. Grose
Dated: September ��, 2013
Caldwell&Kearns,P.C. ' Peter M. Good,Esq.
3631 North Front Street Z1? ��; ? I.D.No. 64316
4`` Jessica E.Mercy,Es
Harrisburg,PA 17110 J y� q•
(717)232-7661 (phone) 1^1 JMBERLAN° Cu ' I.D.No. 206405
(717)232-2766 (fax) " pEtissYLVAN1A
pgood @cklegal.net
jmercy @cklegal.net
Attorneys for Defendants
THOMAS W. MUNKITTRICK, DVM IN THE COURT OF COMMONS PLEAS
and RENEE D. RICHARDS,VMD, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs/Respondents, .
v. •
NO. 13-5641 Civil Term
MARK D. MEYERHOFF, DVM,
individually, and ANIMAL •
EMERGENCY MEDICAL CENTER, •
LLC, ••
Defendants/Petitioners. : CONFESSION OF JUDGMENT
DEFENDANTS/PETITIONERS' PETITION TO
STRIKE AND/OR OPEN CONFESSED JUDGMENT
AND NOW COMES, Defendants/Petitioners Mark D. Meyerhoff, DVM and Animal
Emergency Medical Center, LLC, by and through its attorneys, Caldwell & Kearns, P.C., to file this
Petition to Strike and/or Open Confessed Judgment by averring as follows:
1. Plaintiffs/Respondents Thomas W. Munkittrick, DVM and Renee D. Richards,
VMD (hereinafter "Plaintiffs") filed a Complaint for Confession of Judgment against
Defendants/Petitioners Mark D. Meyerhoff, DVM and Animal Emergency Medical Center, LLC
(hereinafter"Defendants") on or about February 20, 2013.
2. Thereafter, on or about February 25, 2013, Plaintiffs entered judgment by confession
against Defendants in the amount of$26,717.38 (hereinafter the "First Confessed Judgment").
3. Plaintiffs confessed judgment against Defendants pursuant to an Agreement of
Lease (hereinafter the "Lease") between Plaintiffs, as Landlord, and Defendants, as Tenant, dated
October 27, 2009.
4. On or about March 27, 2013, Defendants filed a Petition to Strike and/or Open the
First Confessed Judgment, averring that (1) the confession of judgment clause contained in the
Lease was legally invalid on its face because it was not clear and conspicuous as required by law and
(2) Defendants had meritorious defenses and claims to the First Confessed Judgment.
5. In response to Defendants' Petition to Strike and/or Open the First Confessed
Judgment and the Rule to Show Cause issued by the Court on April 3, 2013, Plaintiffs served
discovery requests, took depositions, filed a motion in limine, filed a bench memorandum, filed
various other pleadings and incurred certain costs.
6. A hearing on Defendants' Petition to Strike and/or Open the First Confessed
Judgment was held on June 25, 2013 and July 1, 2013.
7. On July 16, 2013, the Court entered an Order denying Defendants' Petition to Strike
and/or Open the First Confessed Judgment.
8. Sometime thereafter, Plaintiffs demanded that Defendants pay $24,672.35 in
addition to the amount of the First Confessed Judgment, which amount represented attorneys' fees
and costs associated with "the filing of pleadings, taking of depositions, preparing for the hearing,
conducting the hearing and discussions with Defendants' counsel regarding a global settlement."
Plaintiffs allege that these attorneys' fees and costs were incurred "in the course of collecting the
monies owed under the Lease." See Plaintiff's Complaint in Confession of Judgment at¶¶ 18-19.
9. On or about September 5, 2013, Defendants paid Plaintiffs $26,717.38 in satisfaction
of the First Confessed Judgment and all post-judgment interest thereon; however, Defendants did
not pay the additional$24,672.35 requested by Plaintiffs.
10. As a result, on or about September 26, 2013, Plaintiffs filed a second Complaint for
Confession of Judgment against Defendants.
2
11. Thereafter, on or about September 27, 2013, Plaintiffs entered a second judgment by
confession against Defendants in the amount of $24,672.35 (hereinafter the "Second Confessed
Judgment").
12. Subsequently, on or about September 30, 2012, Plaintiffs provided Defendants with
a Notice under Rule 2985.1 of Judgment and Execution Thereon — Notice of Defendant's Rights
(hereinafter the "Notice"), advising Defendants that they had thirty (30) days from the date of the
Notice to file a petition seeking relief from the Confessed Judgment.
13. This Petition is timely filed.
14. Defendants respectfully request that any execution on the Second Confessed
Judgment be stayed pending the resolution of this Petition.
15. Plaintiffs entered the Second Confessed Judgment against Defendants pursuant to
the Lease.
16. The confession of judgment clause of the Lease is contained in Paragraph 21(B)(vi)
and provides as follows:
If Tenant shall default in the payment of the rent herein reserved or in the
payment of any other sums due hereunder by Tenant, Tenant hereby
authorizes and empowers any Prothonotary or attorney of any court of
record to appear for Tenant in any and all actions which may be brought for
said rent and or said other sums; and/or to sign for Tenant an agreement for
entering in any competent court an amicable action or actions to confess
judgment against Tenant for all or any part of said rental and/or said other
sums, including, but not limited to the amounts due from Tenant to
Landlord under subparagraphs (i), (ii), (iii), (iv), and/or (v) of this Paragraph,
and for interest and costs, together with reasonable attorney's fees. Such
authority shall not be exhausted by one exercise thereof, but judgment may
be confessed as aforesaid from time to time as often as any of said rental
and/or other sums shall fall due or be in arrears, and such powers may be
exercised as well after the expiration of the initial term of this Lease and/or
during any extended or renewal term of this Lease and/or after the
expiration of any extended or renewal term of this Lease.
(emphasis added).
3
Petition to Strike Confessed Judgment
17. Defendants hereby incorporate by reference paragraphs 1 through 16 of the within
Petition as if fully set forth herein.
18. " '[Al motion to strike [a confessed judgment] is proper only when the defect in the
original judgment appears on the face of the record.' "J.F. Realty Co. v. Yerkes, 398 A.2d 215, 217
(Pa. Super. Ct. 1979) (quoting Triangle Building Supplies and Lumber Co. v. Zerman, 363 A.2d
1287, 1289 (Pa. Super. Ct. 1976)).
19. "Generally, such clearly established defects justifying a motion to strike arise when
the judgment entered is for a grossly excessive amount or includes recovery for items that were not
permitted in the contract authorizing a confession of judgment."Yerkes, 398 A.2d at 217.
20. The confession of judgment clause contained in Paragraph 21(B)(vi) of the Lease
allows Plaintiffs to confess judgment against Defendants for all sums due under the Lease and
"interest and costs, together with reasonable attorneys' fees." (emphasis added).
21. The First Confessed Judgment in the amount of $26,717.38 represents unpaid rent
and the unpaid use of equipment and supplies due under the Lease, plus interest, filing fees and
attorneys' fees.
22. The attorneys' fees included in the First Confessed Judgment totaled $3,265.00.
23. The Second Confessed Judgment in the amount of $24,672.35 includes only
attorneys' fees and costs and does not include any sums due under the Lease.
24. The attorneys' fees and costs included in the First Confessed Judgment and the
Second Confessed Judgment total more than the unpaid rent and the unpaid use of equipment and
supplies due under the Lease and incorporated in the First Confession of Judgment.
25. As a result, the Second Confessed Judgment for additional attorneys' fees and costs
in the amount of$24,672.35 is grossly excessive and not reasonable.
4
26. Therefore, the Second Confessed Judgment must be stricken because unreasonable
and grossly excessive attorneys' fees and costs are not permitted under the Lease.
WHEREFORE, Defendants/Petitioners Mark D. Meyerhoff, DVM and Animal Emergency
Medical Center, LLC respectfully request that this Honorable Court strike the Second Confessed
Judgment entered in favor of Plaintiffs/Respondents Thomas W. Munkittrick, DVM and Renee D.
Richards, VMD and award reasonable attorneys' fees to Defendants/Petitioners Mark D.
Meyerhoff, DVM and Animal Emergency Medical Center,LLC.
Petition to Open Confessed Judgment
27. Defendants hereby incorporate by reference paragraphs 1 through 26 of the within
Petition as if fully set forth herein.
28. In the alternative to striking the Second Confessed Judgment, the Second Confessed
Judgment should be opened so that the Court can more fully examine whether the Second
Confessed Judgment for additional attorneys' fees and costs in the amount of$24,672.35 is grossly
excessive and not reasonable.
29. Defendants have alleged meritorious defenses and claims in this Petition which
would require submission of this matter to a jury, or other trier of fact, thereby justifying this Court's
exercise of its equitable authority to open the confessed judgment.
WHEREFORE, Defendants/Petitioners Mark D. Meyerhoff, DVM and Animal
Emergency Medical Center, LLC respectfully request that this Honorable Court open the Second
Confessed Judgment entered in favor of Plaintiffs/Respondents Thomas W. Munkittrick, DVM and
Renee D. Richards, VMD and order such other relief that this Honorable Court deems just and
appropriate.
5
Respectfully Submitted,
CALD LL & KEA) S, P.C.
Dated: October 1y, 2013 By:
Peter M. Good, Esquire—I.D. No. 64316
Jessica E. Mercy, Esquire—I.D. No. 206405
3631 North Front Street
Harrisburg, PA 17110
(717) 232-7661
(717) 232-2766
pgood @cklegal.net
jmercy @cklegal.net
Attorneys for Defendants/Petitioners
6
VER.I.FICATION
I, Mark D. ivleyerboff, DVM, individually, and as the Managing Member of Animal
Emergency Medical Center, LLC, verify that the statements contained in the foregoing document
are true and correct to the best of my knowledge, information and belief. I understand that false
statements therein axe made subject to the penalties of 18 Pa.C.S.A. § 4904, relating to unsworn
falsification to authorities.
Date: (01 141
M i e hoff DIM,individually,
and as
Managing ember of Animal Emergency Medical
Center,T,LC
THOMAS W. MUNKITTRICK, DVM • IN THE COURT OF COMMONS PLEAS
and RENEE D. RICHARDS,VMD, • CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs/Respondents, .
v. •
•
NO. 13-5641 Civil Term
MARK D. MEYERHOFF, DVM, •
individually, and ANIMAL •
EMERGENCY MEDICAL CENTER, •
LLC, •
Defendants/Petitioners. : CONFESSION OF JUDGMENT
CERTIFICATE OF SERVICE
I, Peter M. Good, Esquire, attorney for Defendants in the above-captioned matter, certify
that I this day served a copy of the foregoing Defendants/Petitioners' Petition to Strike and/or
Open Confessed Judgment upon the person(s) indicated below by depositing a copy of the same in
the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, and addressed as
follows:
Stephen L. Grose, Esquire
Saidis, Sullivan &Rogers,P.C.
635 N. 12th Street, Suite 400
Lemoyne, PA 17043
CALDWELL & KEARNS, P.C.
Dated: October fy, 2013 By:/6
Peter M. Good, Esquire—I.D. No. 64316
Jessica E. Mercy, Esquire—I.D. No. 206405
3631 North Front Street
Harrisburg, PA 17110
(717) 232-7661
(717) 232-2766
pgood @cklegal.net
jmercy @cklegal.net
Attorneys for Defendants/Petitioners
THOMAS W. MUNKITTRICK, DVM IN THE COURT OF COMMONS PLEAS
and RENEE D. RICHARDS,VMD, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs/Respondents, .
v. •
. NO. 13-5641 Civil Term ;
MARK D. MEYERHOFF, DVM, ,4;
individually, and ANIMAL
ri
EMERGENCY MEDICAL CENTER,
LLC,
c./), r,.) ..
•
Defendants/Petitioners. : CONFESSION OF JUDGMENT 1 cq
r J
RULE TO --
SHOW CAUSE
AND NOW, thiday of 0)(479641— , 2013, upon consideration of
Defendants/Petitioners' Petition to Strike and/or Open Confessed Judgment,it is hereby
ORDERED and DECREED that:
1. A Rule is issued upon the Plaintiffs/Respondents to show cause as to why
Defendants/Petitioners are not entitled to the relief requested in the Petition;
2. Plaintiffs/Respondents shall file an Answer to the Petition within twenty (20) days of
service of this Rule;
3. The Petition shall be decided under Pa. R. Civ. Pro. 206.7;
4. Depositions, if any, shall be completed within /90 days of the date of this Rule;
5. A hearing shall be held on , 201fin Courtroom No. o�
of the Cumberland County ourt of mmon Pleas before the Honorable Judge
D 4 ; 12"`^—
6. Any execution on the confessed judgment in the amount of$24,672.35 entered in
the above-captioned case on September 27, 2013 shall be stayed pending the
resolution of the Petition.
7. Defendants/Petitioners shall provide notice of entry of this Rule to all parties.
Cop i t LL BY THE COURT:
i;41 p. Gc_
F •
1 e
Stephen L. Grose, Esquire 2'13 NOV -8 AM I(: 52
Attorney I.D. No. 31006
Saidis Sullivan &Rogers UMB"RLA° C COUNTY
635 North 12th Street, Suite 400 PEN C U I F'";
Lemoyne, PA 17043
Phone: (717) 612-5802
Fax: (717) 612-5805
Email: sgrose@a,ssr-attorneys.com Attorneys for Plaintiffs
THOMAS W. MUNKITTRICK, DVM : IN THE COURT OF COMMON PLEAS
and RENEE D. RICHARDS,VMD, : CUMBERLAND COUNTY,
: PENNSYLVANIA
Plaintiffs
vs. : NO.: 13-5641 Civil Term
•
MARK D. MEYERHOFF, DVM,
•
Individually, and ANIMAL
•
EMERGENCY MEDICAL CENTER,
•
LLC,
•
Defendants
ANSWER TO PETITION TO STRIKE
AND/OR OPEN CONFESSED JUDGMENT
AND NOW, comes Plaintiffs/Respondents, Thomas W. Munkittrick, DVM and Renee D.
Richards, VMD (hereinafter referred to collectively as "Plaintiffs" and sometimes as "Willow
Mill,"their business name), by and through their counsel, Saidis Sullivan&Rogers, and files
this Answer to Petition to Strike and/or open Confessed Judgment filed by Mark D. Meyerhoff,
DVM and Animal Emergency Medical Center, LLC (hereinafter referred to individually as
"Meyerhoff' and"AEMC," and collectively as "Defendants"), averring as follows:
1. Denied as stated. Plaintiffs filed the first confession of judgment on February 20,
2013 ("First Confessed Judgment").
2. Admitted.
3. Admitted.
4. Admitted.
5. Denied as stated. It is admitted that this Court issued a Rule to Show Cause on
April 3, 2013, directing an Answer be filed to the Petition within twenty(20) days, that the
Petition proceed under Pa. R.Civ.P. 206.7, that any depositions be taken within forty-five (45)
days and scheduled a hearing for Tuesday, June 25, 2013. Plaintiffs served discovery requests
and in response to the documents and information provided therein, took the depositions of four
(4) of nine (9) witnesses that Defendants had listed. Plaintiffs attempted to have Defendants
voluntarily withdraw the two (2) items they had listed as "meritorious defenses"that Plaintiffs
contended were unrelated to the Confession of Judgment in the Lease,but Defendants refused to
do so. As a result, Plaintiffs were required to take depositions of witnesses dealing with those
issues. Plaintiffs also filed a Motion in Limine requesting that the Court limit the testimony only
to the argument that the Confession of Judgment clause in the Lease was invalid on its face and
not allow claims for"conversion and misappropriation of trade secrets," as they were not
"meritorious defenses"to the payments due under the Lease. As appropriate, Plaintiffs filed a
Bench Memorandum,but did not file"various other pleadings and incurred certain costs,"other
than those necessary to defend against the claims Defendants continued to assert.
6. Admitted.
7. Admitted.
8. Denied as stated. Prior to the hearing and prior to conducting much of the
discovery, Plaintiffs repeatedly advised Defendants that they would seek reimbursement of those
costs and attorney's fees associated with addressing the conversion and misappropriation of trade
secrets under the Confession of Judgment clause as provided for under the Lease if they
2
continued to pursue those claims. As a result of Defendants' continued refusal to drop the
"meritorious" claims for conversion and misappropriation of trade secrets, Plaintiffs did incur
substantial legal costs in taking discovery that otherwise would not have been required and filing
pleadings and documents that would not have been required, if Defendants had not asserted the
positions they did. It is admitted that on September 27, 2013, after the ruling, Plaintiffs filed a
Second Confession of Judgment ("Second Confessed Judgment") that included the items set
forth in the Confession of Judgment. Of the $24,672.35 confessed, $23,127.50 was for
attorney's fees. The remaining balance was for sheriff's fees ($250), Prothonotary's fees
($84.50), deposition fees and costs ($1,007.27) and miscellaneous costs ($203.08). The
Complaint filed in the Second Confessed Judgment is incorporated herein by reference as if set
forth in full.
9. Defendants paid $26,717.38, which did not include post judgment interest and
Plaintiffs promptly satisfied the First Confessed Judgment. Defendants did not and have not paid
any amount of the Second Confessed Judgment in the amount of$24,672.35.
10. Denied as stated. The Complaint for the Second Confessed Judgment was filed
on September 27, 2013.
11. Admitted.
12. Admitted.
13. Admitted.
14. Moot as already granted.
15. Admitted.
3
16. Denied as stated. The Second Confessed Judgment was entered on the same
Confession of Judgment clause contained in the Lease at Paragraph 21(B)(vi) and being a
writing, the Lease speaks for itself It needs no further interpretation. It is admitted that the
Lease does provide for the collection of, among other things, reasonable attorney's fees.
PETITION TO STRIKE CONFESSED JUDGMENT
17. Paragraphs 1 through 16 above are incorporated here by reference as if set forth in
full.
18. Paragraph 18 states a conclusion of law to which no response is required. To the
extent a response is deemed necessary, it is denied and strict proof thereof demanded. It should
be noted that neither the Yerkes case cited in Defendants' Petition, nor the Triangle Building_
Supplies and Lumber Company case quoted in Yerkes,related to attorney's fees.
19. Paragraph 19 states a conclusion of law to which no response is required. To the
extent a response is deemed necessary, it is denied and strict proof thereof demanded. By way of
further response, Defendants' Petition to Strike/Open the Second Confessed Judgment is based
solely on Defendants' allegation that the attorney's fees request was "grossly excessive." It is up
to this Court to determine if the attorney's fees are grossly excessive under all the circumstances
of the case, including the actions that were required to be taken by Plaintiffs as a result of
Defendants asserting two (2) affirmative defenses that were inappropriate for the opening of the
First Confessed Judgment and refusing to drop them throughout the proceeding. Defendants
cannot require Plaintiffs to address the issues of the"two meritorious defenses,"which Plaintiffs
strenuously objected to, then argue to this Court that the inclusion of attorney's fees directed to
defending against the"two meritorious defenses" asserted makes the attorney's fees requested in
4
the Second Confessed Judgment"grossly excessive." In short, Defendants cannot have it both
ways. As noted above, the cases cited by Defendants did not relate to attorney's fees.
20. Paragraph 20 refers to a writing that speaks for itself. It is admitted that the Lease
requires recovery of, among other things, costs and reasonable attorney's fees, which includes
fees to try to have dismissed or to defend against the two "meritorious defense"issues asserted
by Defendants.
21. Admitted.
22. Admitted. By way of further response, these fees were for trying to get
Defendants to pay the monies they owed before they filed their Petition to Strike/Open and
involved no attorney's fees generated in discovery and actual litigation after the First Confessed
Judgment was entered.
23. Denied as stated. The Second Confessed Judgment seeks attorney's fees in the
amount of$23,127.50. These attorney's fees were required in responding to the Petition to
Open/Strike, propounding discovery on all of the claims being asserted by Defendants,
attempting to convince Defendants to voluntarily withdraw the two (2) "meritorious defenses,"
which were not meritorious in a Petition to Strike or Open a Confession of Judgment case, taking
discovery depositions of four(4) of ten (10) witnesses in the matter who would testify directly on
these issues, reviewing all documents, preparing and filing a Motion in Limine requesting that
the hearing be limited only to whether or not the Confession of Judgment clause in the Lease was
valid on its face, preparing a Bench Memorandum for the Court, preparing witnesses and
preparing for a hearing and conducting two (2) days of hearings. It also included numerous
telephone calls and emails between counsel and clients, and between opposing counsel in
5
scheduling depositions, discovery and attempting to resolve the matter prior to the hearing.
Attorney's fees for these matters were not involved in the First Confessed Judgment. The
remaining $1,544.85 of the Second Confessed Judgment were the actual costs for sheriff's fees,
Prothonotary's fees, deposition fees, and costs.
24. Denied as stated. It is admitted that the First Confessed Judgment is greater in
amount than the Second Confessed Judgment. It is also admitted that the attorney's fees
component of the First Confessed Judgment is less than the attorney's fees component of the
Second Confessed Judgment. However, Defendants cannot take positions that Plaintiffs are
required to defend all of their claims, including the two "meritorious defenses," and then argue
that reasonable attorney's fees and actions taken to defend those claims should not be recoverable
as reasonable attorney's fees under the Lease. Had Defendants been reasonable, instead of
unreasonable at the beginning, this amount of attorney's fees would not have been incurred.
25. Denied as stated. The attorney's fees in the Second Confessed Judgment in the
amount of$23,127.50 (not $24,672.35) is not grossly excessive and not unreasonable in this set
of facts. Given the facts of the case and Defendants' unreasonableness in pursuing the two
"meritorious defenses,"the actual attorney's fees required by Plaintiffs to defend all of the claims
the Defendants kept pursuing were not grossly excessive or unreasonable. Defendants' counsel
was advised by Plaintiffs' counsel on numerous occasions that Defendants' insistence on pursing
the two "meritorious defenses,"which were in fact not appropriate, was causing more attorney's
fees to be generated. Three (3) of the four(4) depositions pertained to the"meritorious
defenses," and Defendants listed three other witnesses that Plaintiffs chose not to depose to keep
the costs down.
6
26. Paragraph 26 states a conclusion of law to which no response is required. To the
extent a response is deemed necessary, it is denied and strict proof thereof demanded. By way of
further answer, a Motion to Strike a Confessed Judgment should only be granted where the defect
appears on the record and there was nothing in the record to make the Confession of Judgment
clause in the Lease subject to being stricken.
WHEREFORE, Plaintiffs/Respondents respectfully request that this Honorable Court
deny the Petition to Strike the Second Confessed Judgment as the attorney's fees sought here are
reasonable under all of the circumstances. Further, this Court should not award reasonable
attorney's fees to Defendants because there is no basis to do so, either in statute or contract.
Defendants' actions alone caused these fees to be incurred and they should not be rewarded for
their impertinent actions.
PETITION TO OPEN CONFESSED JUDGMENT
27. Paragraphs 1 through 26 above are incorporated here by reference as if set forth in
full.
28. Denied. Initially it is denied that the attorney's fees amounted to $24,672.35. The
attorney's fees portion of the Second Confessed Judgment were $23,127.50. Further, as noted
above, the attorney's fees in the Second Confessed Judgment were not unreasonable or grossly
excessive in light of the positions taken by Defendants throughout this case, which required
Plaintiffs to take the actions they took and incur the subsequent legal fees and expenses.
Therefore, the Second Confessed Judgment should not be opened as it is not void on its face and
there is no meritorious defense.
7
29. Denied for the reasons stated in paragraph 28 above, which reasons are
incorporated here by reference as if set forth in full. Further, it is specifically denied that the
matter should be submitted to a jury to consider this Petition. Defendants seek equitable relief to
which they have no right to a jury trial. Further, the Petition does not set forth meritorious
defenses, nor does it even allege that the Confession of Judgment clause used to file the Second
Confessed Judgment was invalid on its face. It only alleges the attorney's fees were grossly
excessive and unreasonable.
WHEREFORE, Plaintiffs/Respondents respectfully request that this Honorable Court
deny the Petition to Strike the Second Confessed Judgment as the attorney's fees sought are
reasonable under the circumstances. Further, this Court should not award reasonable attorney's
fees to Defendants because there is no basis to do so, either in statute or contract. Defendants'
actions alone caused these attorney's fees to be incurred and they should not be rewarded for
their impertinent actions.
Respectfully submitted,
SAIDIS SULLIVAN &ROGERS
Dated: November 1 , 2013 By:
STEP EN L. GROSE
Attorney I.D. #31006
8
CERTIFICATE OF SERVICE
I, Stephen L. Grose, Esquire, one of the attorneys for plaintiffs, Thomas W. Munkittrick,
DVM and Renee D. Richards, VMD, hereby certify that I have served the foregoing paper upon
counsel of record this date by depositing a true and correct copy of the same in the United States
mail, first-class postage prepaid, addressed as follows:
Peter M. Good, Esquire
Caldwell &Kearns
3631 North Front Street
Harrisburg, PA 17110-1533
SAIDIS SULLIVAN & ROGERS
Dated: November 7 , 2013 By: ' ,
TEP`EN L. GROSE
Attorney I.D. #31006
THOMAS W. MUNKITTRICK, DVM : IN THE COURT OF COMMON PLEAS OF
AND RENEE D. RICHARDS, VMD, : CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFFS
•
•
V.
•
MARK D. MEYERHOFF, DVM, : r
INDIVIDUALLY, AND ANIMAL •
EMERGENCY MEDICAL CENTER, :
LLC, • '' -zt
DEFENDANTS : NO. 13-5641 CIVIL Vic-„ "
•.
ORDER OF COURT '` CO 7
AND NOW, this 12th day of November, 2013, upon agreement as outlined in
Attorney Stephen Grose's letter of November 7, 2013;
IT IS HEREBY ORDERED AND DIRECTED that:
1. Dr. Munkittrick and Dr. Richards shall submit their invoices for attorney's fees
and costs that are sought in the Second Confessed Judgment to the Court and a
redacted version to Defendants' attorney, Peter Good, Esquire, on or before
November 29, 2013.
2. The parties will then file a memorandum in support of their respective positions
to the Court on or before December 20, 2013.
3. Oral argument in the matter will be held on January 14, 2014, at 9:30 a.m. in
Courtroom No. 2. Each side will be given 15 minutes to argue their respective position.
By the Court,
1\1\' -11*\-\1 /
M. L. Ebert, Jr., J.
Stephen L. Grose, Esquire
Attorney for Plaintiffs
./ Peter Good, Esquire
Attorney for Defendants
bas
CC1D I F.S (Y/a ItEd-
///41// 3
!ti
Or-
Caldwell&Kearns,P.C. i�rCV�tl�}�� lit' ? Peter M. Good,Esq.
3631 North Front Street I.D.No. 64316
Harrisburg,PA 17110 ` »• if Q Jessica E.Mercy,Esq.
(717) 232-7661 (phone) i�Uo'�3�BcE�rR�CAND COUNTY I.D.No.206405
(717) 232-2766 (fax) PENNSYLVANIA
Y�.Vr�f�f A
pgood @cklegal.net
jmercy @cklegal.net
Attorneys for Defendants
THOMAS W. MUNKITTRICK, DVM IN THE COURT OF COMMONS PLEAS
and RENEE D. RICHARDS,VMD, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs/Respondents, .
v. •
NO. 13-5641 Civil Term
MARK D. MEYERHOFF, DVM,
individually, and ANIMAL •
EMERGENCY MEDICAL CENTER, •
LLC, ••
Defendants/Petitioners. : CONFESSION OF JUDGMENT
DEFENDANTS/PETITIONERS' MOTION FOR CONTINUANCE
AND NOW COMES, Defendants/Petitioners Mark D. Meyerhoff, DVM and Animal
Emergency Medical Center, LLC, by and through its attorneys, Caldwell & Kearns, P.C., to file this
Motion for Continuance by averring as follows:
1. On or about September 26, 2013, Plaintiffs/Respondents Thomas W. Munkittrick,
DVM and Renee D. Richards, VMD (hereinafter "Plaintiffs") filed a Complaint for Confession of
Judgment against Defendants/Petitioners Mark D. Meyerhoff, DVM and Animal Emergency
Medical Center,LLC (hereinafter "Defendants").
2. Thereafter, on or about September 27, 2013, Plaintiffs entered judgment by
confession against Defendants in the amount of $24,672.35 (hereinafter the "Second Confessed
Judgment").
3. Subsequently, on or about October 14, 2013, Defendants filed a Petition to Strike
and/or Open Confessed Judgment (hereinafter the "Petition") and requested that any execution on
the Second Confessed Judgment be stayed pending the resolution of the Petition.
4. On or about October 21, 2013, the Court issued a Rule to Show Cause that: (1)
stayed any execution on the Second Confessed Judgment pending the resolution of the Petition; and
(2) scheduled an evidentiary hearing on the Petition for January 14, 2014 at 9:30 a.m.
5. Plaintiffs filed an Answer to Defendants'Petition on or about November 7, 2013.
6. On that same day, Plaintiffs' counsel, with the approval of Defendants' counsel,
contacted the Court and requested that a streamlined procedure be employed to resolve Defendants'
Petition due to the nature of the Second Confessed Judgment and the Petition.
7. In response to the request, the Court issued an Order that: (1) required Plaintiffs to
submit their invoices for all attorneys' fees and costs sought in connection with the Second
Confessed Judgment to the Court and to submit a redacted version of such invoices to Defendants'
counsel on or before November 29, 2013; (2) directed that the parties file memorandum in support
of their respective positions to the Court on or before December 20, 2013; and (3) scheduled oral
argument on Defendants' Petition for January 14, 2014, at 9:30 a.m.
8. Defendants' counsel is attached for trial in a complex civil litigation matter before
the Dauphin County Court of Common Pleas from January 6, 2014 through January 24, 2014.'
9. For this reason, Defendants' counsel respectfully requests that this Honorable Court
continue the oral argument currently scheduled in this matter to a time when Defendants' counsel is
not attached for trial and extend the time for the parties to file their memorandum in support of
their respective positions with the Court.
10. Plaintiffs' counsel has indicated that he is not available to appear for oral argument
from January 30, 2014 through February 9, 2014.
1 It is possible that the trial could extend beyond the three weeks currently scheduled;however,whether this will occur is
unknown at this time.
3
11. Defendants' counsel has contacted Plaintiffs' counsel and he has indicated that he
does not concur in this Motion.
12. The Honorable Judge M.L. Ebert, Jr. has issued a Rule to Show Cause and a
subsequent Order of Court in this matter as more fully set forth above.
WHEREFORE, Defendants/Petitioners Mark D. Meyerhoff, DVM and Animal
Emergency Medical Center, LLC respectfully request that this Honorable Court grant their Motion
for Continuance and continue the oral argument currently scheduled in this matter to a time when
Defendants' counsel is not attached for trial and extend the time for the parties to file their
memorandum in support of their respective positions with the Court.
Respectfully Submitted,
CAL ELL & ARNS, P.C.
Dated: December 11, 2013 By:
Peter M. Good, Esquire—I.D. No. 64316
Jessica E. Mercy, Esquire—I.D. No. 206405
3631 North Front Street
Harrisburg, PA 17110
(717) 232-7661
(717) 232-2766
pgood @cklegal.net
jmercy @cklegal.net
Attorneys for Defendants/Petitioners
4
Y
THOMAS W. MUNKITTRICK, DVM IN THE COURT OF COMMONS PLEAS
and RENEE D. RICHARDS,VMD, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs/Respondents, .
•
v.
NO. 13-5641 Civil Term
MARK D. MEYERHOFF, DVM,
•
individually, and ANIMAL
•
EMERGENCY MEDICAL CENTER,
•
LLC,
Defendants/Petitioners. : CONFESSION OF JUDGMENT
CERTIFICATE OF SERVICE
I, Peter M. Good, Esquire, attorney for Defendants in the above-captioned matter, certify
that I this day served a copy of the foregoing Defendants/Petitioners' Motion for Continuance upon
the person(s) indicated below by depositing a copy of the same in the United States Mail, first class,
postage prepaid, at Harrisburg, Pennsylvania, and addressed as follows:
Stephen L. Grose, Esquire
Saidis, Sullivan &Rogers, P.C.
635 N. 12th Street, Suite 400
Lemoyne, PA 17043
CALDWELL & ARNS, P.C.
Dated: December 11, 2013 By:
Peter M. Go d, Esquire—I.D. No. 64316
Jessica E. Mercy, Esquire—I.D. No. 206405
3631 North Front Street
Harrisburg, PA 17110
(717) 232-7661
(717) 232-2766
pgood @cklegal.net
jmercy @cklegal.net
Attorneys for Defendants/Petitioners
VI .e€1-`Ux"F IL
CIF litf PRO T HHONQTA
2113 DEC 18 PH 2: 12
Stephen L. Grose, Esquire CUMBERLAND COUNTY
Attorney I.D. No. 31006 PENNSYLVANIA
Saidis Sullivan &Rogers
635 North 12th Street, Suite 400
Lemoyne, PA 17043
Phone: (717) 612-5802
Fax: (717) 612-5805
Email: sgrose@ssr-attorneys.com Attorneys for Plaintiffs
THOMAS W. MUNKITTRICK, DVM : IN THE COURT OF COMMON PLEAS
and RENEE D. RICHARDS, VMD, : CUMBERLAND COUNTY,
: PENNSYLVANIA
Plaintiffs
vs. : NO.: 13-5641 Civil Term
•
MARK D. MEYERHOFF,DVM,
•
Individually, and ANIMAL
•
EMERGENCY MEDICAL CENTER,
•
LLC,
•
Defendants
PLAINTIFFS' RESPONSE TO DEFENDANTS'
MOTION FOR CONTINUANCE
AND NOW, comes Plaintiffs/Respondents, Thomas W. Munkittrick, DVM and Renee D.
Richards, VMD (hereinafter referred to collectively as "Plaintiffs" and sometimes as "Willow
Mill,"their business name), by and through their counsel, Saidis Sullivan&Rogers, and files
this Response to Defendants' Motion for Continuance filed by Mark D. Meyerhoff, DVM and
Animal Emergency Medical Center, LLC (hereinafter referred to individually as "Meyerhoff'
and"AEMC," and collectively as "Defendants"), as follows:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted.
6. Admitted.
7. Admitted.
8. Plaintiffs are without knowledge of defense counsel's trial schedule.
9. Plaintiffs have no objection to this request, provided that the Memoranda be filed
by no later than December 20, 2013, and that the oral argument be held sometime after defense
counsel's trial,but before January 31, 2014. Plaintiffs' counsel is out of the country from
January 31 through February 9, 2014.
10. Admitted.
11. Denied as stated. Plaintiffs' counsel has agreed that the oral argument scheduled
for January 14, 2014,be postponed until after defense counsel's trial,but prior to January 30,
2014. Further, this issue has been outstanding since the confession of judgment was filed on
October 21, 2013. While Plaintiff's counsel is sympathetic to defense counsel's situation, this
continues to be a further delay, and the brief regarding reasonable attorney's fees should not be
more than several pages as the issue is narrow.
12. Admitted.
2
WHEREFORE, Plaintiffs/Respondents respectfully request that this Honorable Court not
postpone the date for filing of the Memoranda from December 20, 2013. Plaintiffs/Respondents
are willing to reschedule the oral argument for some time later in the month of January, up
through and including January 30, 2014, to accommodate defense counsel's schedule.
Respectfully submitted,
SAIDIS SULLIVAN & ROGERS
Dated: December 17 , 2013 By:
STE"HEN L. GROSE
Attorney I.D. #31006
3
CERTIFICATE OF SERVICE
I, Stephen L. Grose, Esquire, one of the attorneys for plaintiffs, Thomas W. Munkittrick,
DVM and Renee D. Richards, VMD, hereby certify that I have served the foregoing paper upon
counsel of record this date by depositing a true and correct copy of the same in the United States
mail, first-class postage prepaid, addressed as follows:
Peter M. Good, Esquire
Caldwell &Kearns
3631 North Front Street
Harrisburg, PA 17110-1533
SAIDIS SULLIVAN &ROGERS
Dated: December I , 2013 By: �j�sr----
S EP N L. GROSE
Attorney I.D. #31006
THOMAS W. MUNKITTRICK, DVM IN THE COURT OF COMMON PLEAS OF
AND RENEE D. RICHARDS, VMD, CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFFS
V.
MARK D. MEYERHOFF, DVM,
INDIVIDUALLY, AND ANIMAL
EMERGENCY MEDICAL CENTER,
LLC,
DEFENDANTS NO. 13-5641 CIVIL
ORDER OF COURT
AND NOW, this 18th day of December, 2013, upon consideration of Defendant's
Motion for Continuance and Plaintiff's Response thereto;
IT IS HEREBY ORDERED AND DIRECTED that the Motion for continuance is
GRANTED. Oral argument on the Defendant's Petition to Strike and/or Open
Confessed Judgment shall be held on Thursday, February 13, 2014, at 8:30 a.m. in
Courtroom No. 2 of the Cumberland County Courthouse, Carlisle, Pennsylvania. The
parties shall file Memorandum in support of their respective positions to the Court on or
before December 30, 2013.
By the Court,
*�� Q V
M. L. Ebert, Jr., J.
MC3
q 7 Xtephen L. Grose, Esquire ;S `-,'
Attorney for Plaintiffs
,/Peter Good, Esquire ok�
Attorney for Defendants \ ;°
bas �,
THOMAS W. MUNKITTRICK, DVM IN THE COURT OF COMMON PLEAS OF
AND RENEE D. RICHARDS, VMD, CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFFS
V.
MARK D. MEYERHOFF, DVM,
INDIVIDUALLY, AND ANIMAL
EMERGENCY MEDICAL CENTER,
LLC,
DEFENDANTS NO. 13-5641 CIVIL
ORDER OF COURT
AND NOW, this 12t" day of February, 2014, upon consideration the weather
forecast,
IT IS HEREBY ORDERED AND DIRECTED that the oral argument on the
Defendant's Petition to Strike and/or Open Confessed Judgment currently scheduled for
Thursday, February 13, 2014, at 8:30 a.m. is continued to Wednesday, February 26,
2014, at 9:00 a.m. in Courtroom No. 2 of the Cumberland County Courthouse, Carlisle,
Pennsylvania.
By the Court,
M. L. Ebert, Jr., J.
Stephen L. Grose, Esquire '
Attorney for Plaintiffs —ram 1: --�
./V'eter Good, Esquire " r
Attorney for Defendants '
bas *C"> C)
t7t�� J
ro
1
THOMAS W. MUNKITTRICK, DVM : IN THE COURT OF COMMON PLEAS OF
AND RENEE D. RICHARDS, VMD, : CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFFS
-0
,.� ...
MARK D. MEYERHOFF, DVM,
INDIVIDUALLY, AND ANIMAL • C.
EMERGENCY MEDICAL CENTER, • `=
DEFENDANTS : NO. 13-5641 CIVIL 0-'
IN RE: DEFENDANTS' PETITION TO STRIKE AND/OR OPEN CONFESSED
JUDGMENT
ORDER OF COURT
AND NOW, this 3rd day of March, 2014, upon consideration of the Defendants'
Petition to Strike and/or Open Confessed Judgment, the Plaintiffs' Answer thereto and
after oral argument; the matter having been submitted to the Court pursuant to an
agreement of the parties contained in a letter written by Stephen L. Grose, Esquire,
dated November 7, 2013;
IT IS HEREBY ORDERED AND DIRECTED that the Defendants' Petition to
Strike and/or Open Confessed Judgment is DENIED; however, pursuant to the
agreement outlined by the parties in the letter of November 7, 2013, and pursuant to the
equitable powers of this Court; IT IS HEREBY ORDERED AND DIRECTED that the
amount of the confessed judgment shall be set at $17,270.65.
By the Court,
M. L. Ebert, Jr., I J.
Stephen L. Grose, Esquire
Attorney for Plaintiffs
./Peter Good, Esquire
Attorney for Defendants
bas
ecres
3/3/IY
Stephen L. Grose, Esquire
Attorney I.D. No. 31006
Saidis Sullivan & Rogers
635 North 12th Street, Suite 400
Lemoyne, PA 17043
Phone: (717) 612-5802
Fax: (717) 612-5805
Email: sg>rose@a,ssr-attorneys. corn
F L 3- F fCE
t F
THE PPOTHONO TAi
2£111rMY 12 PM 2:46
CUMBERLAND COUNTY
PENNSYLVANIA
Attorneys for Plaintiffs
THOMAS W. MUNKITTRICK, DVM
and RENEE D. RICHARDS, VMD,
Plaintiffs
vs.
MARK D. MEYERHOFF, DVM,
Individually, and ANIMAL
EMERGENCY MEDICAL CENTER,
LLC,
Defendants
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY,
: PENNSYLVANIA
: NO.: 13-5641 Civil Term
PRAECIPE TO MARK SATISFIED, SETTLED AND DISCONTINUED
TO THE PROTHONOTARY OF SAID COURT:
Please mark the Judgment in the amount of $17,270.65 entered in the above matter by
Judge Ebert by Order dated March 3, 2014, satisfied, settled and discontinued, with prejudice.
Dated: May 12, 2014
Respectfully submitted,
SAIDIS SULLIVAN & ROGERS
By:,•
S'I PHEN L. GROSE
Attorney I.D. # 31006
s',.a*
357r‘,
,�f 3 vs" 7s'�'
CERTIFICATE OF SERVICE
I, Stephen L. Grose, Esquire, one of the attorneys for plaintiffs, Thomas W. Munkittrick,
DVM and Renee D. Richards, VMD, hereby certify that I have served the foregoing paper upon
counsel of record this date by email and by depositing a true and correct copy of the same in the
United States mail, first-class postage prepaid, addressed as follows:
Peter M. Good, Esquire
Caldwell & Kearns
3631 North Front Street
Harrisburg, PA 17110-1533
SAIDIS SULLIVAN & ROGERS
Dated: May 12, 2014 By:
ST' 'HEN L. GROSE
Attorney I.D. #31006