Loading...
HomeMy WebLinkAbout05-0298 Dauphin County ROA Report Case: 2004-CV-0674-CV Current Judge: No Judge William J De La Tour vs. Jack Mckenzie, Mckenzie && Company Date: 10/5/2004 Time: 11 :00 AM Page 1 of 1 Date 2/17/2004 3/26/2004 5/11/2004 6/29/2004 10/4/2004 10/5/2004 Of; - d-qrP c?'t-c..>l ( ~'t:z.>-V) User: LG~RCIA - L Civil Judge No Judge No Judge New Civil Case Filed This Date. Filing: Complaint Paid by: Holston & Crisci Receipt number: 0051360 Dated: 2/17/2004 Amount: $105.00 (Check) Coyne & Coyne by: Austin F. Grogan, Esq. enters appearance on behalf of No Judge defendant, Jack McKenzie, d/b/a McKenzie and Company. Defendant: Mckenzie, Jack Attorney of Record: Austin F. Grogan No Judge Defendant's Preliminary Objections, filed No Judge Notice pursuant to Dauphin County Rule of Court No. 211, filed No Judge Defendant's brief in support of preliminary objections, filed No Judge Praecipe to List for Argument, filed by Counsel for Defendant(s). No Judge It is hereby ORDERED that: Defendants' Preliminary Objection on the basis Todd A. Hoover of venue is hereby GRANTED. We do not rule on the remaining preliminary Objections. The matter is to be transferred by the Prothonotary of Dauphin County to the Prothonotary of Cumberland County, with the costs of transfer to be born by the Plaintiff. See Order filed copies dist 10/5/04 The above action transferred to the Court of Common Pleas of Cumberland No Judge County. ....NO MORE ENTRIES CASE THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY No Judge OC..'.r. ~ ~ .' I ~~$;"'\ t -,...............n ,) . "'.'."' ~ '..'i.<;" # 27 JULY 2004 ARGUMENT COURT WILLIAM J. DE LA TOUR, Plaintiff, : IN THE COURT OF COMMON PLEAS : DAUPHIN COUNTY, PENNSYLVANIA v. : NO. 2004 CV -0674 JACK McKENZIE, d/b/a McKENZIE AND COMPANY, Defendants "0,: 0]'::" .::-:':: .. 5;;~:- '" '= '= .x- C) " --.. I C.I'/ -; ORDER :t.. ::Jl:: is " ("'..Jr'.. ::G '''.:;':::: -: C.I'/ 0'\ AND NOW, this 4th day of October, 2004, it is hereby ORDERED that: Defendants' Preliminary Objection on the basis of venue is hereby GRANTED. We do not rule on the remaining preliminary objections. The matter is to be transferred by the Prothonotary of Dauphin County to the Prothonotary of Cumberland County, with the costs of transfer to be born by the Plaintiff. CJ?JlRJ~ TODD A. HOOVER, JUDGE Distribution: HenryF. Coyne, Esq., 3901 Market Street, Camp Hill, PA 17011-4227 Joseph D. Holston, Esq., 200 N. Third Street, Harrisburg, PA 17101 .' .,' 'O.ot, '.., i 1....:: v: L 'T ProthonmaryofDaupmnCounty ',j . &, . ,/u,.,.)", -"'-'--~.-.-.--.~-. .~ IMA(3F[) "> = = 0r- e >- -., ,.., IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY~WIL ~ ACTION-LAW ~~j -...J J> c:' 3> c: :x COMMONWEALTH OF PENNSYLVANIA ....... - -I - -< W 1,0 WILLIAM J. DE LA TOUR, cia Joseph D. Holston, Jr., Esq. Holston & Crisci Fulton Bank Building, Suite 400 200 N. Third Street Harrisburg,PA 17101 Plaintiff, v. ;)O()t.! -( V-6(; 7~-CV NO. JACK McKENZIE, d/bla McKENZIE AND COMPANY, 3507 Market Street, #102 Camp Hill, PA 17011 Defendant. ATTORNEY !.D. NO. 34,852 NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed against you and a judgment may be entered against you by the court without further notice for any money claimed in this 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 LA WYER 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. Dauphin County Lawyer Referral Service 213 North Front Street Harrisburg, Pennsylvania 17101 (717) 232-7536 --- ~ '; ("'"J :~J \;::" ',-~~ ~~: ~,::::"rlq .",) Q.,L.- _.' I v iV ' IOt?t; IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY-CIVIL ACTION-LAW COMMONWEALTH OF PENNSYLVANIA WILLIAM J. DE LA TOUR, c/o Joseph D. Holston, Jr., Esq. Holston & Crisci Fulton Bank Building, Suite 400 200 N. Third Street Harrisburg, PA 17101 Plaintiff, t......::; ~;:..- ~ c::s ..,.. ~ Q:I ..../ <JD .-;:.;~. ~:-. v. 'I ;:.;~II:;'I' .b. t";) ~: ~ ~--!"''' ::::J -- ,~:.": 0 ~;-, :-:- ""0 ....,.1~:; '""'I: '" . :,~ NO. !J,co4 - ex - 0& ?if -CJ/ - ." .._~, ~....,:. ..,-. ~=::, ~,.. Pc; - JACK McKENZIE, d/b/a McKENZIE AND COMPANY, 3507 Market Street, #102 Camp Hill, PA 17011 Defendant. ATTORNEY LD. NO. 34,852 JURISDICTION 1. This Court has personal jurisdiction over the parties in this action. 2. This Court has subject matter jurisdiction over the parties in this action. 3. Venue is proper in Dauphin County, Pennsylvania. STATEMENT OF FACTS I. Jack McKenzie, d/b/a McKenzie and Company ("Defendant"), is engaged in business in Dauphin County and throughout the Commonwealth of Pennsylvania. 2. Defendant is engaged in the business of distributing various wines and spirits in Pennsylvania through the Pennsylvania Liquor Control Board ("Liquor Control Board"). 3. Commencing on May 26, 1998, Defendant agreed to employ William J. de La Tour ("Plaintiff') to represent four brands of wines and spirits within Pennsylvania, including Barefoot/Grape Lake Wines, Boisset Wines, Beyond Vodka, and John Barr Scotch, at a commission of $2.00 per case sold, with payment to be sent to Plaintiff after Defendant received payment from the Liquor Control Board. 4. This contractual relationship was confirmed in a letter from Plaintiff to Defendant dated May 31, 1998. 5. Plaintiff continues to represent Defendant's products. 6. On January 8, 2003, the terms of the May 26,1998 agreement were altered so that Defendant agreed to pay Plaintiff a flat fee of $1 ,000.00 on the first of each month throughout 2003, regardless of product sold that month, for a yearly total of$12,000, plus any additional amounts found to be due after a year's end reconciliation. 7. Defendant agreed to calculate at year's end the total commission Plaintiff had eamed throughout the year based on the number of cases sold and would pay to Plaintiff any remaining commission Plaintiff was due in excess of the $12,000 that had already been paid in monthly installments. 2 8. In a letter dated January 8, 2003, Plaintiff confirmed the terms of the January 8, 2003 agreement. 9. Defendant made payment to Plaintiff under the terms ofthe January 8, 2003 agreement for January, February, and March of2003 but ceased to pay beginning in April of 2003. 10. In a letter dated April 9, 2003, Plaintiff attempted to convince Defendant to fulfill the terms of the January 8, 2003 agreement but was unable to obtain payment. 11. In an effort to resolve this affair, Plaintiff retained legal counsel, who contacted Defendant in letters dated May 18, 2003 and August 18, 2003 but to which Defendant did not reply. 12. At all times, Plaintiff has acted with good faith and has pursued these claims diligently. 13. It has since come to Plaintiff s attention that Defendant's accounting of sales of wine and spirits brands that Plaintiff represented may be in error and that Plaintiff may have been grossly undercompensated for his services. 14. Throughout 2003, Plaintiff made repeated requests to Defendant for statements detailing the amounts sold of the wine and spirits brands he was engaged to represent. 15. Defendant failed to respond to these requests. 16. In late 2003, after being unable to obtain the information from Defendant, Plaintiff requested and obtained statements from the Pennsylvania Liquor Control Board detailing the total cases of product sold in 2001 and 2002. o " 17. From these statements, Plaintiff was able to ascertain that Defendant had misrepresented the total cases of product sold in 200 I and 2002. 18. Plaintiff also determined that Defendant had grossly undercompensated Plaintiff under the terms of the May 26, 1998 agreement for his services throughout 200 I and 2002 to the extent of at least $8,000.00 for 2001 and $6,000.00 for 2002. 19. Defendant's misrepresentations were material to the transaction at hand and were made with knowledge of their falsity or recklessness as to whether the information was true or false. 20. Defendant intended to mislead Plaintiff into relying on his misrepresentations of the total amounts sold for 200 I and 2002 and the amounts of commission to which Plaintiff was due. 21. Plaintiff justifiably relied on Defendant's misrepresentations. 22. Plaintiffs injuries have been proximately caused by his reliance on Defendant's misrepresentations. PLAINTIFF'S CAUSE OF ACTION COUNT ONE 23. Plaintiff incorporates by reference, as if completely rewritten herein, the allegations set forth in paragraphs one through twenty-two (1-22) of this Complaint. 24. Defendant has committed unfair, deceptive, and unconscionable acts and practices in violation of the terms of the agreement of May 26, 1998 by failing to pay commissions earned by Plaintiff pursuant to Defendant's agreement. 4 COUNT TWO 25. Plaintiff incorporates by reference, as if completely rewritten herein, the allegations set forth in paragraphs one through twenty-two (1-22) of this Complaint. 26. Defendant has committed unfair, deceptive, and unconscionable acts and practices in violation of the terms of the agreement of May 26,1998 by intentionally misrepresenting the amounts it sold of wine and spirits brands represented by Plaintiff and grossly undercompensating Plaintiff for his services. COUNT THREE 27. Plaintiff incorporates by reference, as if completely rewritten herein, the allegations set forth in paragraphs one through twenty-two (1-22) of this Complaint. 28. Defendant has committed unfair, deceptive, and unconscionable acts and practices in violation of the terms of the agreement of January 8, 2003 by refusing to make payments to Plaintiff pursuant to the terms of Defendant's agreement. PRAYER FOR RELIEF WHEREFORE, Plaintiff requests that this court: 1) ISSUE an order declaring that the Defendant has engaged in acts and practices in violation of the terms of the agreements of May 26,1998 and January 8, 2003. 2) ORDER the Defendant to produce his accounts of amounts sold for the products represented by Defendant from January 1,2001 through December 31, 2002. 3) ORDER the Defendant to pay Plaintiff any commission he is due for his services from the period January I, 2001 to December 31, 2002 and which he has not yet received due to Defendant's intentional misrepresentations, plus interest. 5 3) ORDER the Defendant to pay past due commissions to Plaintiff for services rendered in 2003 as determined by amounts sold during that period, plus interest, under the terms of the January 8, 2003 agreement. 4) GRANT Plaintiff all costs incurred in bringing this action. 5) GRANT such other relief as the Court deems to be just, equitable, and appropriate. " ~.L;1-~: B,~~d~~t t/ Holston & Crisci Fulton Bank Building Suite 400 200 N. Third Street Harrisburg, Pennsylvania 171 0 I (717) 234-1716 Counsel for Plaintiff 6 HVIAGED COYNE & COYNE, P.C. BY: Henry F. Coyne, Esquire Attorney LD. #06250 3901 Market Street Camp Hill, PA 17011-4227 (717) 737-0464 Attorneys for Defendant IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, COMMONWEALTH OF PENNSYL VANIA WILLIAM J. DE LA TOUR, Plaintiff : Civil Action - Law vs. : No.2004-CV-0674-CV JACK McKENZIE, d/b/a McKENZIE AND COMPANY, "1). rhO :;:e:<';;';'r: ~C"" Po C:: :;:.: --; -< ~ C) 0\ PRAECIPE TO THE PROTHONOTARY OF DAUPHIN COUNTY, PENNSYLVANIA: Sir: Kindly enter my appearance as the attorney of record for the Defendant, Jack McKenzie, dIh/a McKenzie and Company. Respectfully, COYNE & COYNE, P.C. Dated: 3. '2.i.( - 64 CLu4J .,~ By: kHenryF. Coyr\'e, U Pa. S. Ct. No. 06 0 3901 Market Street Camp Hill, PA 17011-4227 (717) 737-0464 Attorney for Defendant ~ ~ ~ =t> "" <n ~ "'0 AS :0 00::0 :::f""'l_ '.... ......., C) ~,c-) .~C"),.." (,')rr,-- c;-;o~ ~; ""'Ie:;, h IMAGED COYNE & COYNE, P.c. BY: Henry F. Coyne, Esquire Attorney J.D. #06250 3901 Market Street Camp Hill, PA 17011-4227 (717) 737-0464 Attorneys for Defendant IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, COMMONWEALTH OF PENNSYLVANIA .... c:::> c:::> .c- ::x ". ceo N 0'1 WILLIAM J. DE LA TOUR, Plaintiff : Civil Action - Law ri-t- - vs. : No.2004-CY-0674-CY ;~ :;-::c }.::"(.:J C~': -0 :x ca (:) -.I JACK McKENZIE, d/b/a McKENZIE AND COMPANY, -.,,':,." -< DEFENDANT'S PRELIMINARY OBJECTIONS TO THE HONORABLE, JUDGES OF SAID COURT: And now comes, Defendant, Jack McKenzie, d/b/a McKenzie and Company, by and through his legal counsel, Coyne & Coyne, P.C., and avers the following in support of the following Preliminary Objections: I. Defendant, Jack McKenzie, is an adult individual residing in Cumberland County, Pennsylvania. 2. Defendant, Jack McKenzie, is an adult individual doing business as McKenzie and Company whose business office is located at 3507 Market Street, Camp Hill, Hampden Township, Cumberland County, Pennsylvania. OBJECTION NO. 1: Motion to Strike Due to Lack of Jurisdiction 3. Paragraphs I and 2 are incorporated herein. -o~ ::0 00::0 '-i "'<1,." :';~(") ~ 0"" ....,.,,- u < '-10"" ""'<10 '0 4. Plaintiff attempted original service of the Complaint by way of United States Postal Service, Certified Mail. 5. Defendant is an individual residing in the Commonwealth of Pennsylvania. 6. Plaintiff did not perfect original service upon Defendant by way of service by Sheriff as required by Pa. R.C.P. 400. WHEREFORE, pursuant to Pa. R.C.P. 1028(a)(I), Defendant respectfully requests that Plaintiffs complaint must be stricken as this Honorable Court does not have jurisdiction of Defendant due to lack of proper original service of complaint pursuant to the Rules of Civil Procedure. OBJECTION NO.2: Motion to Strike Due to Improper Venue 7. Paragraphs I and 2 are incorporated herein by reference. 8. Plaintiffs alleged causes of action arose pursuant to "contract" actions undertaken by Defendant in Cumberland County. 9. Pa. RC.P. 1006(a) provides that venue is proper against an individual in and only in a county in which the individual may be served or in which the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose. 10. Dauphin County is not the correct venue for this cause of action for breach of a "contract" nor is Dauphin County a county in which Defendant was properly served as provide by Pa. RC.P. 400. WHEREFORE, respectfully requests this Honorable Court to Strike the Complaint pursuant to Pa. RC.P. 1028 as this Court is the improper venue to adjudicate the alleged dispute. OBJECTION NO. 3: Motion to Strike Due to Lack of Verification 11. Paragraphs 1 through 10 are incorporated herein by reference. 12. The complaint filed by the Plaintiff makes certain averments of fact not appearing of record. 13. No verification signed by the Plaintiff is attached to the complaint concerning the factual averments contained in the complaint. 14. Pa. R.C.P. 1024 mandates all averments of fact in pleadings to be verified as defined by Pa. R.C.P. 76. WHEREFORE, Defendant respectfully requests that pursuant to Pa. R.C.P. 1028(a)(2), this Honorable Court strike Plaintiffs complaint for failure to comply with Pa. R.C.P. 1024. OBJECTION NO.4 Motion to Strike Due to Failure to Comply with Local Rules of Court 15. Paragraphs 1 through 14 are incorporated herein by reference. 16. Dauphin County Rule of Court No. I018.1(d) require the Notice to Defend attached to a complaint to be set forth in English and Spanish. 17. The Notice to Defend attached to Plaintiffs Complaint IS only set forth in English; not in English and Spanish as required by local rule of Court. 18. Dauphin County Rule of Court No. 237.5 require a Notice of Intention to Enter Default Judgment to be set forth in English and Spanish. 19. The Notice of Intention to Enter Default Judgment filed by Plaintiff in this case was only set forth in English, not in English and Spanish as required by local rule of Court. 20. Dauphin County Rule of Court No. 1301 provides for compulsory arbitration. 21. Pa. R.C.P. 1021(c) mandates that in counties having rules governing compulsory arbitration, the plaintiff shall state whether the amount claimed does or does not exceed the jurisdictional amount requiring arbitration. 22. Plaintiffs complaint fails to identify whether the amount claimed for damages does or does not exceed the jurisdictional amount for compulsory arbitration in Dauphin County. WHEREFORE, Defendant respectfully requests that pursuant to Pa. R.C.P. I02S(a)(2), this Honorable Court strike Plaintiff's Complaint for failure to comply with Dauphin County Rule of Court No. IOIS.I(d) and 237.5 and I301. OBJECTION NO. 5; Motion to Strike for Failure to Attach SUDDortini?- Documents 23. Paragraphs I through 22 are incorporated herein by reference. 24. Plaintiff alleges that a contractual relationship with Defendant as evidenced by certain written documents; however no written documents are attached to the complaint. 25. Plaintiff generally alleges Defendant made certain promises as evidenced by certain written documents; however, no written documents are attached to the complaint. 26. Plaintiff generally alleges Defendant made certain misrepresentations as evidenced by certain written documents; however, no written documents are attached to the complaint. 27. Plaintiff alleges certain written demands were made upon Defendant by Plaintiff's counsel as evidenced by letters allegedly written to Defendant; however, no written documents are attached to the complaint. 28. Plaintiff alleges that his claim is based upon certain documents Plaintiff allegedly received from the Pennsylvania Liquor Control Board; however, no such documents are attached to the complaint. 29. Plaintiff alleges certain "calculations" in support of his demand for damages and his "accounting", however, no specificity or alleged documentation is attached to the Complaint which is in violation ofPa. R.C.P. 1019(i) and Pa. R.C.P. 1028 (a)(3). 30. Pa. R.C.P. 1019(i) mandates that if a claim is based upon a writing, the pleader shall attach a copy of the writing unless it is not accessible to the pleader, in which case the pleader must so state together with the reason for its inaccessibility. WHEREFORE, Defendant respectfully requests that pursuant to Pa. R.C.P. 1028(a)(2), this Honorable Court strike Plaintiff's Complaint for failure to comply with Pa. R.C.P. 1019(i). OBJECTION NO.6: Motion to More Specific Pleading Due to Lack of Specificity 31. Paragraphs 1 through 31 are incorporated herein by reference. 32. Plaintiff alleges generally that Defendant made misrepresentations to him and that he relied upon such representations to his detriment. 33. Plaintiff alleges generally that Defendant engaged in fraudulent and deceptive conduct and practices. 34. Plaintiff alleges generally that Defendant made misrepresentations, which were false, deceptive, unconscionable, and reckless. 35. Pa. R.c.P. 1019(b) provides that averments of fraud or mistake shall be averred with particularity. WHEREFORE, Defendant respectfully requests that pursuant to Pa. R.C.P. 1028(a)(3), this Honorable Court grant Defendant's Motion for a More Specific Pleading in accordance with Pa. R.C.P. 1019(b). Respectfully Submitted: Dated: 3.,1 (.. ..>'1 By: enryF.Co ,Es e 3901 Market Street, Camp Hill, PA 17011-4227 (717) 737-0464 Pa. S. Ct. No. 06250 Attorney for Defendant VERIFICATION The facts set forth in the foregoing are true and correct to the best of the undersigned's knowledge, information and belief and are verified subject to the penalties for unsworn falsification to authorities under 18 Pa. C.S.A. S4904. Dated: 3-'2.4> -0'1 ~ (J1~ CERTIFICATE OF SERVICE I, Lisa Marie Coyne, Esquire, of Coyne & Coyne, P.C., hereby certify that true copy of the foregoing Defendant's Preliminary Objections were served this date upon the below-referenced individuals at the below listed address by way of first class mail, postage pre-paid and facsimile: Joseph D. Holston, Jr., Esq. Holston & Crisci 200 N. Third Street, Suite 400 Harrisburg, PAl 71 0 1 Dated: ?, (1-<.,J 0 'f {L~A r """"'.0>,"0' 0'..( 0' wc.:,: >LI,;' We.> c..:' G:~:: H LWlJ_!'-- cr: c.., (:~~J [\.t i~ (.M ~;: D' 'il~'" ~~~. COYNE & COYNE, P.c. BY: Henry F. Coyne, Esquire Attorney LD. #06250 3901 Market Street Camp Hill, PA 17011-4227 (717) 737-0464 Attorneys for Defendant IN THE COURT OF COMMON PLEAS OF DAUPffiN COUNTY, COMMONWEALTH OF PENNSYLVANIA WILLIAM J. DE LA TOUR, Plaintiff : Civil Action - Law vs. : No.2004-CV-0674-CV JACK McKENZIE, d/b/a McKENZIE AND COMPANY, NOTICE PURSUANT TO DAUPHIN COUNTY RULE OF COURT NO. 211 To: WILLIAM J. DE LA TOUR C/O Joseph D. Holston, Jr., Esq. Holston & Crisci 200 N. Third Street, Suite 400 Harrisburg, P A You are hereby Notified to file a Responsive Brief within 30 days of service of this date. Dated: { {iJ /Ih,~ & '7 N co ::c .a: >- ._~ .....,.. ,::J :";..,;::= "..,"--~ COYNE & COYNE, P.C. By: ~ Henry F. Coyne 3901 Market Street Camp Hill, PA 17011-4227 (717) 737-0464 Pa. S. Ct. No. 06250 Attorney for Defendant ......,.. .:...../ ;,-- ""< :lC ..:r = = .,.... CERTIFICATE OF SERVICE I, Henry F. Coyne, Esquire, of Coyne & Coyne, P.C., hereby certify that true copy of the foregoing Notice to File Responsive Brief was served this date upon the below-referenced individuals at the below listed address by way of first class mail, postage pre-paid and facsimile: Joseph D. Holston, Jr., Esq. Holston & Crisci 200 N. Third Street, Suite 400 Harrisburg, P A 171 0 I Dated: ! 0 ~~ e if .~ ., IMAC3FD '" "'" = or' .." ,.., IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY.---Jh\lJL ~ ACTION-LAW ~;_ -.J J> (~, :1> C :x e " -. (-. COMMONWEAL TH OF PENNSYLVANIA ...;.. - .. -i -< W \D WILLIAM 1. DE LA TOUR, c/o Joseph D. Holston, Jr., Esq. Holston & Crisci Fulton Bank Building, Suite 400 200 N. Third Street Hmrisburg, PA 17101 Plaintiff, v. JO{JLI-c V-6(,7Jj-C.Y NO. JACK McKENZIE, d/b/a McKENZIE AND COMPANY, 3507 Market Street, #102 Camp Hill, PA 17011 Defendant. ATTORNEY LD. NO. 34,852 NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must talce 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 against you and ajudgment may be entered against you by the court without further notice for any money claimed in this 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. Dauphin County Lawyer Referral Service 213 North Front Street Harrisburg, Pennsylvania 1710 I (717) 232-7536 - ~ .; ,"'"') "-7~ . ,",.- ",""-:. .,,-~ 0' ~';I}L. 10L;tJ IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY-CIVIL ACTION-LAW COMMONWEAL TH OF PENNSYL VANIA WILLIAM J. DE LA TOUR, c/o Joseph D. Holston, Jr., Esq, ' Holston & Crisci Fulton Bank Building, Suite 400 200 N, Third Street Harrisburg, PA 17101 Plaintiff, .r~-: ~ t-. ..c- " ..., '1:J-,' .." ",' f't'J:::.: Cb <')0. ~::;:-~ -- ,::rF ?;p' :: -., ;~~';-,~.::'; 3:~ ~ ~ .-,'" -- _ ,~"'O,.! --? -.. ,.0- ""'l'<j-~ -( .. ::':J \..../ t.> -,' 'IrYjLi _ c..r - Ou?if -C'j/ NO. OICA.. -r v, JACK McKENZIE, d/b/a McKENZIE AND COMPANY, 3507 Market Street, #102 Camp Hill, P A 17011 Defendant. ATTORNEY LD. NO. 34,852 JURISDICTION 1. This Court has personal jurisdiction over the parties in this action. 2. This Court has subject matter jurisdiction over the parties in this action, 3. Venue is proper in Dauphin County, Pennsylvania. STATEMENT OF FACTS 1. Jack McKenzie, d/b/a McKenzie and Company ("Defendant"), is engaged in business in Dauphin County and throughout the Commonwealth of Pennsylvania. 2. Defendant is engaged in the business of distributing various wines and spirits in Pennsylvania through the Pennsylvania Liquor Control Board ("Liquor Control Board"). 3. Commencing on May 26,1998, Defendant agreed to employ William J. de La Tour ("Plaintiff') to represent four brands of wines and spirits within Pennsylvania, including Barefoot/Grape Lake Wines, Boisset Wines, Beyond Vodka, and John Barr Scotch, at a commission of$2.00 per case sold, with payment to be sent to Plaintiff after Defendant received payment from the Liquor Control Board. 4. This contractual relationship was confirmed in a letter from Plaintiffto Defendant dated May 31, 1998. 5. Plaintiff continues to represent Defendant's products. 6. On January 8, 2003, the terms of the May 26,1998 agreement were altered so that Defendant agreed to pay Plaintiff a flat fee of $1 ,000.00 on the first of each month throughout 2003, regardless of product sold that month, for a yearly total of$12,000, plus any additional amounts found to be due after a year's end reconciliation. 7. Defendant agreed to calculate at year's end the total commission Plaintiff had earned throughout the year based on the number of cases sold and would pay to Plaintiff allY remaining commission Plaintiff was due in excess of the $12,000 that had already been paid in monthly installments. 2 8. In a letter dated January 8, 2003, Plaintiff confirmed the terms of the January 8, 2003 agreement. 9. Defendant made payment to Plaintiff under the terms of the January 8, 2003 agreement for January, February, and March of2003 but ceased to pay beginning in Aprilof2003. 10. In a letter dated April 9, 2003, Plaintiff attempted to convince Defendant to fulfill the terms of the January 8, 2003 agreement but was unable to obtain payment. II. In an effort to resolve this affair, Plaintiff retained legal counsel, who contacted Defendant in letters dated May 18, 2003 and August 18, 2003 but to which Defendant did not reply. 12. At all times, Plaintiff has acted with good faith and has pursued these claims diligently. 13. It has since come to Plaintiff s attention that Defendant's accounting of sales of wine and spirits brands that Plaintiff represented may be in error and that Plaintiff may have been grossly lmdercompensated for his services. 14. Throughout 2003, Plaintiff made repeated requests to Defendant for statements detailing the amounts sold of the wine and spirits brands he was engaged to represent. 15. Defendant failed to respond to these requests. 16. In late 2003, after being unable to obtain the information from Defendant, Plaintiff requested and obtained statements from the Pennsylvania Liquor Control Board detailing the total cases of product sold in 2001 and 2002. o ~ 17. From these statements, Plaintiff was able to ascertain that Defendant had misrepresented the total cases of product sold in 2001 and 2002. 18. Plaintiff also determined that Defendant had grossly undercompensated Plaintiff under the terms of the May 26, 1998 agreement for his services throughout 200 I and 2002 to the extent of at least $8,000.00 for 2001 and $6,000.00 for 2002. 19. Defendant's misrepresentations were material to the transaction at hand and were made with knowledge of their falsity or recklessness as to whether the information was true or false. 20. Defendant intended to mislead Plaintiff into relying on his misrepresentations of the total amounts sold for 200 I and 2002 and the amounts of commission to which Plaintiff was due. 21. Plaintiff justifiably relied on Defendant's misrepresentations. 22. Plaintiffs injuries have been proximately caused by his reliance on Defendant's misrepresentations. PLAINTIFF'S CAUSE OF ACTION COUNT ONE 23. Plaintiff incorporates by reference, as if completely rewritten herein, the allegations set forth in paragraphs one through twenty-two (1-22) of this Complaint. 24. Defendant has committed unfair, deceptive, and unconscionable acts and practices in violation of the terms of the agreement of May 26, 1998 by failing to pay commissions earned by Plaintiff pursuant to Defendant's agreement. 4 COUNT TWO 25. Plaintiff incorporates by reference, as if completely rewritten herein, the allegations set forth in paragraphs one through twenty-two (1-22) of this Complaint. 26. Defendant has committed unfair, deceptive, and unconscionable acts and practices in violation of the terms of the agreement of May 26, 1998 by intentionally misrepresenting the amounts it sold of wine and spirits brands represented by Plaintiff and grossly undercompensating Plaintiff for his services. COUNT THREE 27. Plaintiff incorporates by reference, as if completely rewritten herein, the allegations set forth in paragraphs one through twenty-two (1-22) of this Complaint. 28. Defendant has committed unfair, deceptive, and unconscionable acts and practices in violation of the terms of the agreement of January 8, 2003 by refusing to make payments to Plaintiff pursuant to the terms of Defendant's agreement. PRAYER FOR RELIEF WHEREFORE, Plaintiff requests that this court: I) ISSUE an order declaring that the Defendant has engaged in acts and practices in violation of the terms of the agreements of May 26, 1998 and January 8, 2003. 2) ORDER the Defendant to produce his accounts of amounts sold for the products represented by Defendant from January 1,2001 through December 31, 2002. 3) ORDER the Defendant to pay Plaintiff any commission he is due for his services from the period January I, 2001 to December 31, 2002 and which he has not yet received due to Defendant's intentional misrepresentations, plus interest. 5 3) ORDER the Defendant to pay past due commissions to Plaintiff for services rendered in 2003 as determined by amounts sold during that period, plus interest, under the terms of the January 8, 2003 agreement. 4) GRANT Plaintiff all costs incurred in bringing this action. 5) GRANT such other relief as the Court deems to be just, equitable, and appropriate. ~~9~~ 'I . . \ By: .. i , Joseph!. H Is n, Ji t [/ ,/ Holston & Crisci Fulton Bank Building Suite 400 200 N. Third Street Harrisburg, Pennsylvania 17101 (717)234-1716 Counsel for Plaintiff 6 rY~~J I IvllB i~ l'''', r- D' fv R !4 ~ "'& ,.... " j. ~ '~......v ~..~ . COYNE & COYNE, P.C. BY: Henry F. Coyne, Esqnire Attorney J.D. #06250 3901 Market Street Camp Hill, PA 17011-4227 (717) 737-0464 Attorneys for Defendant IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, COMMONWEALTH OF PENNSYLVANIA VS. : No.2004-CV-0674-CV ;? WILLIAM J. DE LA TOUR, Plaintiff : Civil Action - Law JACK McKENZIE, d/b/a McKENZIE AND COMPANY, Defendant DEFENDANT'S BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS i,) I. Oral Argument Is Not Necessarv Co ---l Oral Argument is not necessary as Defendant's Preliminary Objections can be determined by review of the docket and a review of the contents of Plaintiffs "Jurisdiction" action filed in this matter. Should this Honorable Court require Oral Argument, Defendant is ready to procedure as directed by this Court. II. Factual and Procedural Background On February 17, 2004, Plaintiff, William J. De la Tour, filed with this Court an unverified document, entitled "Jurisdiction" and naming Jack McKenzie, d/b/a McKenzie and Company, the Defendant. (See Exhibit "A" attached.) Defendant, Jack McKenzie, is an adult individual residing in Cumberland County, Pennsylvania and does business as McKenzie and Company, whose business office is located at 3507 Market Street, Camp Hill, Hampden Township, Cumberland County, Pennsylvania. At some time subsequent to the filing of the "Jurisdiction", 1 Plaintiff attempted to obtain original service upon the Defendant by way of the U.S. Postal Service, Certified Mail. Plaintiff did not seek, nor did he request original service upon the Defendant pursuant to the Rules of Civil Procedure, i.e., by deputized Sheriff service. On March 26, 2004, Defendant filed Preliminary Objections to the document filed by the Plaintiff Subsequent to filing those Preliminary Objections, the undersigned counsel attempted to resolve the objections with opposing counsel, however, no response was forthcoming from opposing counsel. This Brief is submitted in support of those Preliminary Objections. III. Statement of Questions Involved 1. Whether Plaintiff's "Jurisdiction" should be stricken because Plaintiff failed to obtain original service upon Defendant who resides and does business in Cumberland County? Suggested Answer: Affirmative 2. Whether this action should be stricken because Dauphin County lacks venue when the dispute at hand involves Cumberland County Defendants and arises out of actions occurring in Cumberland County? 3. Suggested Answer: Affirmative 4. Whether this action should be stricken, as there was no proper verification of the factual averments contained in the document used to commence this civil action? Suggested Answer: Affirmative S. Whether this action should be stricken when the document filed by the Plaintiff does not include a Notice to Defend in conformity with local rules of Court nor does it state whether the amount in controversy triggers compulsory arbitration pursuant to the local rules of Court? Suggested Answer: Affirmative 6. Where Plaintiff's cause of action is based upon allegations of fraud and mistake and where Plaintiff fails to state such allegations with specificity, must the action be stricken as not in compliance with Pa. R.C.P. 1019(b)? Suggested Answer: Affirmative 2 III. Argument Failure to Comply with Rules of Civil Procedure: Lack of Jurisdiction and Venue This Honorable Court does not have jurisdiction nor is Dauphin County the proper venue in this dispute as averred. Plaintiffs initiating document, entitled, "Jurisdiction" is not a recognized means of commencing a civil action in this Commonwealth. Notwithstanding that fatal defect, Plaintiff has attempted to obtain original service upon the Defendant by way ofD.S. Postal Service, Certified Mail rather than by service by sheriff. Pa. RC.P 400 clearly requires that the sheriff shall make original process of service. Specifically, Pa. RC.P. 400provides that: (a) Except as provided in subdivisions (b) and (c) and in Rules 400.1 and 1930.4, original process shall be served within the Commonwealth only by the sheriff. . . (d) If service is to be made by the sheriff in a county other than the county in which the action was commenced, the sheriff of the county where service may be made shall be deputized for that purpose by the sheriff of the county where the action was commenced. Id. Furthermore, the Rules of Civil Procedure require that an action may be commenced only one of two ways, i.e., either by filing with the Prothonotary a Praecipe for a writ of summons or by filing a complaint. See, Pa. RC.P. 1007. Here, the Plaintiff did neither. Instead, Plaintiff filed a document entitled, "Jurisdiction", and then failed to serve that document by sheriff service or deputized sheriff service. Instead, the Plaintiff attempted to serve the "document" by the U.S. Postal Service via Certified Mail. Such service clearly does not comply with Rule 400. The defect in service is a fatal defect and does not provide for nor grant jurisdiction to this honorable court. 3 In addition to the lack of jurisdiction, Plaintiff alleges in the document filed to commence this action that the cause of action arose pursuant to "contractual" actions and non-actions undertaken by the Defendant in Cumberland County, Pennsylvania. Pa. R.C.P. l006(a), however, provides that venue is proper against an individual in and only in a county in which the individual may be served or in which the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose. Under this rule, the Defendant is a resident of Cumberland County, the business at issue is located in Cumberland County, and Cumberland County is the county in which certified mailing was attempted. Therefore, clearly, Cumberland County, not Dauphin County, is the county within which venue properly lies. Because the Defendant filed preliminary objections in the nature of Motions to Strike concerning the lack of jurisdiction and venue in this matter, this Honorable Court must grant the Motions Striking the document filed by the Plaintiff. Plaintiff alleges in his "document" that certain contractual relationship existed with Defendant and that Defendant made certain promises to Plaintiff and that Defendant made certain misrepresentations to Plaintiff. Plaintiff also alleges that Plaintiff made certain written demands upon Defendant and that Plaintiffs claim is based upon certain written documents Plaintiff received from the Pennsylvania Liquor Control Board. Those written documents contain certain "calculations" in support of Plaintiffs demand for "damages". Plaintiffs document contains no specificity or alleged written documentation in support of his claim as required by the Rules of Civil Procedure. Pa. R.C.P. IOI9(i) and Pa. R.C.P. 1028(a)(3) require that, if a claim is based upon a writing, the pleader shall attach a copy of the writing unless it is not accessible to the pleader, in which case the pleader must so state together with the reason for its inaccessibility. Here, there 4 is not only a specific reference to documents which support Plaintiffs claim against Defendant, but there is also no indication whatsoever that Defendant has access to the documents in question. As such, Plaintiffs "document" filed as the initiating document is wholly deficient and defective and should be stricken. In addition to the lack of required documentation, Plaintiff's document is defective in that although Plaintiff alleges fraud or mistake, such allegations are only made in the most general sense. Pa. R.C.P. IOI9(b), however, mandates that averments of fraud or mistake must be averred with particularity. Because of Plaintiff's patent defect in his "pleading" Plaintiff's "document" against Defendant must be stricken for failing to be in compliance with the mandates and requirements ofthe Rules of Civil Procedure. Plaintiffs Failure to Attach Verification In addition to the lack of jurisdiction and venue, Plaintiffs action is also fatally flawed in that it contains factual averments not appearing of record and which are not verified in accordance with the Rules of Civil Procedure. No verification signed by the Plaintiff is attached to Plaintiff's document. Pa. R.C. P. 1024, however, mandates all averments of fact in pleadings to be verified as defined by Pa. P.C.P. 76. Because of this defect, the Honorable Court must grant the Motion to Strike. Plaintiffs Failure to Comply with Local Rules of Court Dauphin County Rule of Court No. IOIS.I(d) requires the Notice to Defend attached to a complaint be set forth in both English and Spanish. The Notice to Defend attached to Plaintiffs "document", however, is set forth in English, not in English and Spanish as required by local rule of Court. This defect of Plaintiff's document is, yet again, another example of the failure of the 5 Plaintiff to adhere to even the minimum of procedural mandates in commencing and pursuing this "action" against Defendant. Additionally Plaintiff s document is also fatally flawed in that it does not state whether or not the action falls within the purview of compulsory arbitration. Under Dauphin County Rule of Court No. 1301, "all actions in which the amount in controversy is $35,000 or less... shall be submitted to and heard by a Board of Arbitration pursuant to applicable law." Furthermore, Pa. RC.P. 1021(c) mandates that in counties having rules governing compulsory arbitration, the plaintiff shall state whether the amount claimed does or does not exceed the jurisdictional amount requiring arbitration. Here, Plaintiffs document fails to identify whether or not the amount claimed for damages exceeds the jurisdictional amount for compulsory arbitration in Dauphin County. As such, Plaintiff's failure to comply with the local rules of this Court regarding arbitration and inclusion of English and Spanish Notices to Defend clearly warrant the striking of the "document" filed by the Plaintiff. Conclusion: Defendant's Preliminary Objections must be sustained and Plaintiffs action entitled "Jurisdiction" must be Stricken and Dismissed in accordance with the Pennsylvania Rules of Civil Procedure as well as the Dauphin County Civil Rules of Court. Respectfully Submitted: CO Henry F. Co , Esquire 3901 Market Street Camp Hill, PA 17011-4227 (717) 737-0464 Pa. S. Ct. No. 06250 Attorney for Defendant Dated: I 0 ~ -e'f By: 6 IN THE COURT OF COMMON PLEAS OF DAUPIDN COUNTY-CIVIL ACTION-LAW COMMONWEALTH OF PENNSYLVANIA WILLIAM J. DE LA TOUR, cia Joseph D. Holston, Jr., Esq. Holston & Crisci Fulton Bank Building, Suite 400 200 N. Third Street Harrisburg, PAl 71 0 1 Plaintiff, v. NO. ~~()Ott -cv -6&,;19 -CY JACK McKENZIE, d/bla McKENZIE AND COMPANY, 3507 Market Street, # 1 02 Camp Hill, PA 17011 Defendant. ATTORNEY l.D. NO. 34,852 NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed against you and a judgment may be entered against you by the court without further notice for any money claimed in this 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. Dauphin County Lawyer Referral Service 213 North Front Street Harrisburg, Pem1sylvania 171 01 (717) 232-7536 exh.'t./ 'l4" IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY-CIVIL ACTION-LAW COMMONWEALTH OF PENNSYLVANIA WILLIAM J. DE LA TOUR, c/o Joseph D. Holston, Jr., Esq. Holston & Crisci Fulton Bank Building, Suite 400 200 N. Third Street Harrisburg, PAl 71 0 1 Plaintiff, v. NO. JACK McKENZIE, d/b/a McKENZIE AND COMPANY, 3507 Market Street, #102 Camp Hill, PA 17011 Defendant. ATTORNEY LD. NO. 34,852 JURISDICTION 1. This Court has personal jurisdiction over the parties in this action. 2. This Court has subject matter jurisdiction over the parties in this action. 3. Venue is proper in Dauphin County, Pennsylvania. I STATEMENT OF FACTS ~ 1. Jack McKenzie, d/b/a McKenzie and Company ("Defendant"), is engaged in business in Dauphin County and throughout the Commonwealth of Pennsylvania. 2. Defendant is engaged in the business of distributing various wines and spirits in Pennsylvania through the Pennsylvania Liquor Control Board ("Liquor Control Board"). 3. Commencing on May 26,1998, Defendant agreed to employ William J. de La Tour ("Plaintiff') to represent four brands of wines and spirits within Pennsylvania, including Barefoot/Grape Lake Wines, Boisset Wines, Beyond Vodka, and John Barr Scotch, at a commission of $2.00 per case sold, with payment to be sent to Plaintiff after Defendant received payment from the Liquor Control Board. 4. This contractual relationship was confirmed in a letter from Plaintiff to Defendant dated May 31, 1998. 5. Plaintiff continues to represent Defendant's products. 6. On January 8, 2003, the terms of the May 26, 1998 agreement were altered so that Defendant agreed to pay Plaintiff a flat fee of$l,OOO.OO on the first of each month throughout 2003, regardless of product sold that month, for a yearly total of $12,000, plus any additional amoUllts found to be due after a year's end reconciliation. 7. Defendant agreed to calculate at year's end the total commission Plaintiff had earned throughout the year based on the number of cases sold and would pay to Plaintiff any remaining commission Plaintiff was due in excess of the $12,000 that had already been paid in monthly installments. 2 8. In a letter dated January 8, 2003, Plaintiff confirmed the terms of the January 8, 2003 agreement. 9. Defendant made payment to Plaintiff under the terms of the January 8, 2003 agreement for January, February, and March of2003 but ceased to pay begilming in Aprilof2003. 10. In a letter dated April 9, 2003, Plaintiff attempted to convince Defendant to fulfill tbe terms of the January 8, 2003 agreement but was unable to obtain payment. II. In an effort to resolve this affair, Plaintiff retained legal counsel, who contacted Defendant in letters dated May 18, 2003 and August 18, 2003 but to which Defendant did not reply. 12. At all times, Plaintiff has acted with good faith and has pursued these claims diligently. 13. It has since come to Plaintiffs attention that Defendant's accounting of sales of wine and spirits brands that Plaintiff represented may be in error and that Plaintiff may have been grossly undercompensated for his services. 14. Throughout 2003, Plaintiff made repeated requests to Defendant for statements detailing the amounts sold of the wine and spirIts brands he was engaged to represent. 15. Defendant failed to respond to these requests. 16. In late 2003, after being unable to obtain the information from Defendant, Plaintiff requested and obtained statements from the Pennsylvania Liquor Control Board detailing the total cases of product sold in 200 I and 2002. 3 17. From these statements, Plaintiff was able to ascertain that Defendant had misrepresented the total cases of product sold in 2001 and 2002. 18. Plaintiff also determined that Defendant had grossly under compensated Plaintiff under the termsofthe May 26,1998 agreement for his services throughout 2001 and 2002 to the extent of at least $8,000.00 for 2001 and $6,000.00 for 2002. 19. Defendant's misrepresentations were material to the transaction at hand and were made with knowledge of their falsity or recklessness as to whether the information was true or false. 20. Defendant intended to mislead Plaintiff into relying on his misrepresentations of the total amounts sold for 2001 and 2002 and the amounts of commission to which Plaintiff was due. 21. Plaintiff justifiably relied on Defendant's misrepresentations. 22. Plaintiff s injuries have been proximately caused by his reliance on Defendant's misrepresentations. PLAINTIFF'S CAUSE OF ACTION COUNT ONE 23. Plaintiff incorporates by reference, as if completely rewritten herein, the allegations set forth in paragraphs one through twenty-two (1-22) of this Complaint. 24. Defendant has committed unfair, deceptive, and unconscionable acts and practices in violation of the terms of the agreement of May 26,1998 by failing to pay commissions earned by Plaintiff pursuant to Defendant's agreement. 4 COUNT TWO 25. Plaintiff incorporates by reference, as if completely rewritten herein, the allegations set forth in paragraphs one through twenty-two (1-22) of tilis Complaint. 26. Defendant has committed wlfair, deceptive, and W1conscionable acts and practices in violation of the terms of the agreement of May 26,1998 by intentionally misrepresenting the amounts it sold of wine and spirits brands represented by Plaintiff and grossly W1dercompensating Plaintiff for his services. COUNT THREE 27. Plaintiff incorporates by reference, as if completely rewritten herein, tile allegations set forth in paragraphs one through twenty-two (1-22) of this Complaint. 28. Defendant has committed W1fair, deceptive, and unconscionable acts and practices in violation of the terms of the agreement of January 8, 2003 by refusing to make payments to Plaintiff pursuant to the terms of Defendant's agreement. PRAYER FOR RELIEF WHEREFORE, Plaintiff requests that this court: 1) ISSUE an order declaring that the Defendant has engaged in acts and practices in violation of the terms of the agreements of May 26,1998 and January 8, 2003. 2) ORDER the Defendant to produce his accoW1ts of amounts sold for the products represented by Defendant from January 1, 2001 through December 31, 2002. 3) ORDER the Defendant to pay Plaintiff any commission he is due for his services from the period January 1, 2001 to December 31, 2002 and which he has not yet received due to Defendant's intentional misrepresentations, plus interest. 5 J. 3) ORDER the Defendant to pay past due commissions to Plaintiff for services rendered in 2003 as determined by amounts sold during that period, plus interest, under the terms of the January 8, 2003 agreement. o 4) GRANT Plaintiff all costs incurred in bringing this action. I,., 5) GRANT such other relief as the Court deems to be just, equitable, and appropriate. ~ Holston & Crisci Fulton Bank Building Suite 400 200 N. Third Street Harrisburg, Pennsylvania 17101 (717) 234-1716 Counsel for Plaintiff 6 CERTlHCATE Of SERVICE I, Henry F. Coyne, Esquire, of Coyne & Coyne, P.C., hereby certify that true copy of the foregoing Defendant's Brief in Support of Preliminary Objections was served this date upon the below-referenced individuals at the below listed address by way of first class mail, postage pre- paid: Joseph D. Holston, Jr., Esq. Holston & Crisci 200 N. Third Street, Suite 400 Harrisburg,PA 17101 Dated: / 0 ~f34 ~Lr-e Henry F. Coyne 7 COYNE & COYNE, P.C. BY: Henry F. Coyne, Esquire Attorney I.D. #06250 3901 Market Street Camp Hill, PA 17011-4227 (717) 737-0464 Attorneys for Defendant IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, COMMONWEALTH OF PENNSYLVANIA WILLIAM J. DE LA TOUR, Plaintiff : Civil Action - Law vs. : No.2004-CV-0674-CV JACK McKENZIE, d/b/a McKENZIE AND COMPANY, Defendant DEFENDANT'S BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS. 1"'.) (_:"'; -.I I. Oral Argument Is Not Necessary Oral Argument is not necessary as Defendant's Preliminary Objections can be determined by review of the docket and a review of the contents of Plaintiffs "Jurisdiction" action filed in this matter. Should this Honorable Court require Oral Argument, Defendant is ready to procedure as directed by this Court. II. Factual and Procedural Background On February 17, 2004, Plaintiff, William J. De la Tour, filed with this Court an unverified document, entitled "Jurisdiction" and naming Jack McKenzie, d/b/a McKenzie and Company, the Defendant. (See Exhibit "A" attached.) Defendant, Jack McKenzie, is an adult individual residing in Cumberland Countv, Pennsylvania and does business as McKenzie and Company, whose business office is located at 3507 Market Street, Camp Hill, Hampden Township, Cumberland Countv. Pennsylvania. At some time subsequent to the filing of the "Jurisdiction", I Plaintiff attempted to obtain original service upon the Defendant by way of the U.S. Postal Service, Certified Mail. Plaintiff did not seek, nor did he request original service upon the Defendant pursuant to the Rules of Civil Procedure, i.e., by deputized Sheriff service. On March 26, 2004, Defendant filed Preliminary Objections to the document filed by the Plaintiff. Subsequent to filing those Preliminary Objections, the undersigned counsel attempted to resolve the objections with opposing counsel, however, no response was forthcoming from opposing counsel. This Brief is submitted in support of those Preliminary Objections. III. Statement of Qnestions Involved 1. Whether Plaintiffs "Jurisdiction" should be stricken because Plaintiff failed to obtain original service upon Defendant who resides and does business in Cumberland County? Suggested Answer: Affirmative 2. Whether this action should be stricken because Dauphin County lacks venue when the dispute at hand involves Cumberland County Defendants and arises out of actions occurring in Cumberland County? 3. Suggested Answer: Affirmative. 4. Whether this action should be stricken, as there was no proper verification of the factual averments contained in the document used to commence this civil action? Suggested Answer: Affirmative 5. Whether this action should be stricken when the document filed by the Plaintiff does not include a Notice to Defend in conformity with local rules of Court nor does it state whether the amount in controversy triggers compulsory arbitration pursuant to the local rules of Court? Suggested Answer: Affirmative 6. Where Plaintiff s cause of action is based upon allegations of fraud and mistake and where Plaintiff fails to state such allegations with specificity, must the action be stricken as not in compliance with Pa. R.C.P. 1019(b)? Suggested Answer: Affirmative 2 III. Argument Failure to Complv with Rules of Civil Procedure: Lack of Jurisdiction and Venue This Honorable Court does not have jurisdiction nor is Dauphin County the proper venue in this dispute as averred. Plaintiffs initiating document, entitled, "Jurisdiction" is not a recognized means of commencing a civil action in this Commonwealth. Notwithstanding that fatal defect, Plaintiff has attempted to obtain original service upon the Defendant by way ofD.S. Postal Service, Certified Mail rather than by service by sheriff. Pa. R.C.P 400 clearly requires that the sheriff shall make original process of service. Specifically, Pa. R.C.P. 400provides that: (a) Except as provided in subdivisions (b) and (c) and in Rules 400.1 and 1930.4, original process shall be served within the Commonwealth only by the sheriff. . . (d) If service is to be made by the sheriff in a county other than the county in which the action was commenced, the sheriff of the county where service may be made shall be deputized for that purpose by the sheriff of the county where the action was commenced. !d. Furthermore, the Rules of Civil Procedure require that an action may be commenced only one of two ways, i.e., either by filing with the Prothonotary a Praecipe for a writ of summons or by filing a complaint. See, Pa. R.c.P. 1007. Here, the Plaintiff did neither. Instead, Plaintiff filed a document entitled, "Jurisdiction", and then failed to serve that document by sheriff service or deputized sheriff service. Instead, the Plaintiff attempted to serve the "document" by the U.S. Postal Service via Certified Mail. Such service clearly does not comply with Rule 400. The defect in service is a fatal defect and does not provide for nor grant jurisdiction to this honorable court. 3 In addition to the lack of jurisdiction, Plaintiff alleges in the document filed to conunence this action that the cause of action arose pursuant to "contractual" actions and non-actions undertaken by the Defendant in Cumberland County, Pennsylvania. Pa. R.C.P. I006(a), however, provides that venue is proper against an individual in and only in a county in which the individual may be served or in which the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose. Under this rule, the Defendant is a resident of Cumberland County, the business at issue is located in Cumberland County, and Cumberland County is the county in which certified mailing was attempted. Therefore, clearly, Cumberland County, not Dauphin County, is the county within which venue properly lies. Because the Defendant filed preliminary objections in the nature of Motions to Strike concerning the lack of jurisdiction and venue in this matter, this Honorable Court must grant the Motions Striking the document filed by the Plaintiff. Plaintiff alleges in his "document" that certain contractual relationship existed with Defendant and that Defendant made certain promises to Plaintiff and that Defendant made certain misrepresentations to Plaintiff. Plaintiff also alleges that Plaintiff made certain written demands upon Defendant and that Plaintiffs claim is based upon certain written documents Plaintiff received from the Pennsylvania Liquor Control Board. Those written documents contain certain "calculations" in support of Plaintiffs demand for "damages". Plaintiffs document contains no specificity or alleged written documentation in support of his claim as required by the Rules of Civil Procedure. Pa. R.C.P. IOI9(i) and Pa. R.C.P. I028(a)(3) require that, if a claim is based upon a writing, the pleader shall attach a copy of the writing unless it is not accessible to the pleader, in which case the pleader must so state together with the reason for its inaccessibility. Here, there 4 is not only a specific reference to documents which support Plaintiff s claim against Defendant, but there is also no indication whatsoever that Defendant has access to the documents in question. As such, Plaintiffs "document" filed as the initiating document is wholly deficient and defective and should be stricken. In addition to the lack of required documentation, Plaintiff s document is defective in that although Plaintiff alleges fraud or mistake, such allegations are only made in the most general sense. Pa. R.C.P. IOI9(b), however, mandates that averments of fraud or mistake must be averred with particularity. Because of Plaintiffs patent defect in his "pleading" Plaintiffs "document" against Defendant must be stricken for failing to be in compliance with the mandates and requirements of the Rules of Civil Procedure. Plaintiffs Failure to Attach Verification In addition to the lack of jurisdiction and venue, Plaintiff s action is also fatally flawed in that it contains factual averments not appearing of record and which are not verified in accordance with the Rules of Civil Procedure. No verification signed by the Plaintiff is attached to Plaintiffs document. Pa. R.C. P. 1024, however, mandates all averments of fact in pleadings to be verified as defined by Pa. P.C.P. 76. Because of this defect, the Honorable Court must grant the Motion to Strike. Plaintiffs Failure to Complv with Local Rules of Court Dauphin County Rule of Court No. lOI8.1(d) requires the Notice to Defend attached to a complaint be set forth in both English and Spanish. The Notice to Defend attached to Plaintiffs "document", however, is set forth in English, not in English and Spanish as required by local rule of Court. This defect of Plaintiff s document is, yet again, another example of the failure of the 5 Plaintiff to adhere to even the minimum of procedural mandates in commencing and pursuing this "action" against Defendant. Additionally Plaintiffs document is also fatally flawed in that it does not state whether or not the action falls within the purview of compulsory arbitration. Under Dauphin County Rule of Court No. 1301, "all actions in which the amount in controversy is $35,000 or less... shall be submitted to and heard by a Board of Arbitration pursuant to applicable law." Furthermore, Pa. R.C.P. 1021(c) mandates that in counties having rules governing compulsory arbitration, the plaintiff shall state whether the amount claimed does or does not exceed the jurisdictional amount requiring arbitration. Here, Plaintiffs document fails to identify whether or not the amount claimed for damages exceeds the jurisdictional amount for compulsory arbitration in Dauphin County. As such, Plaintiffs failure to comply with the local rules of this Court regarding arbitration and inclusion of English and Spanish Notices to Defend clearly warrant the striking ofthe "document" filed by the Plaintiff. Conclusion: Defendant's Preliminary Objections must be sustained and Plaintiffs action entitled "Jurisdiction" must be Stricken and Dismissed in accordance with the Pennsylvania Rules of Civil Procedure as well as the Dauphin County Civil Rules of Court. Respectfully Submitted: Dated: I () ~ .eLf By: :.-0 Henry F. Co , Esquire 3901 Market Street Camp Hill, PA 17011-4227 (717) 737-0464 Pa. S. Ct. No. 06250 Attorney for Defendant 6 IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY-CIVIL ACTION-LAW COMMOI\'WEAL TH OF PENNSYLVANIA WILLIAM J. DE LA TOUR, c/o Joseph D. Holston, Jr., Esq. Holston & Crisci Fulton Bank Building, Suite 400 200 N. Third Street Harrisburg,PA 17101 Plaintiff, v. NO. ~~6'()(1 -c ,/-60,4 -CY :. JACK McKENZIE, d/b/a McKENZIE AND COMPANY, 3507 Market Street, #102 Camp Hill, P A 17011 Defendant. ATTORNEY !.D. NO. 34,852 NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a V\'fitten 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 against you and a judgment may be entered against you by the court without further notice for any money claimed in this 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 LA WYERAT 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. Dauphin County Lawyer Referral Service 213 North Front Street Harrisburg, Pennsylvania 17101 (717) 232-7536 E;,JII 6; t 1'4 'f IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY-CIVIL ACTION-LAW COMMONWEALTH OF PENNSYLVANIA WILLIAM J. DE LA TOUR, c/o Joseph D. Holston, Jr., Esq. Holston & Crisci Fulton Bank Building, Suite 400 200 N. Third Street Harrisburg, PA 17101 Plaintiff, v. NO. JACK McKENZIE, d/b/a McKENZIE AND COMPANY, 3507 Market Street, #102 Camp Hill, PA 17011 Defendant. ATTORNEYLD. NO. 34,852 JURISDICTION 1. This Court has personal jurisdiction over the parties in this action. 2. This Court has subject matter jurisdiction over the parties in this action. 3. Venue is proper in Dauphin County, Pennsylvania. I STATEMENT OF FACTS ~ 1. Jack McKenzie, d/b/a McKenzie and Company ("Defendant"), is engaged in business in Dauphin County and throughout the Commonwealth of Pennsylvania. 2. Defendant is engaged in the business of distributing various wines and spirits in Pennsylvania tlrrough tlle Pennsylvania Liquor Control Board ("Liquor Control Board"). 3. Commencing on May 26, 1998, Defendant agreed to employ William 1. de La Tour ("Plaintiff') to represent four brands of wines and spirits within Pennsylvania, including Barefoot/Grape Lake Wines, Boisset Wines, Beyond Vodka, and John Barr Scotch, at a commission of $2.00 per case sold, Witll payment to be sent to Plaintiff after Defendant received payment from the Liquor Control Board. 4. This contractual relationship was confirmed in a letter from Plaintiff to Defendant dated May 31, 1998. 5. Plaintiff continues to represent Defendant's products. 6. On January 8, 2003, the terms of the May 26,1998 agreement were altered so that Defendant agreed to pay Plaintiff a flat fee of $1 ,000.00 on the first of each month tlrroughout 2003, regardless of product sold tllat month, for a yearly total of $12,000, plus any additional amounts found to be due after a year's end reconciliation. 7. Defendant agreed to calculate at year's end the total commission Plaintiff had eamed tlrroughout the year based on the number of cases sold and would pay to Plaintiff any remaining commission Plaintiff was due in excess of the $12,000 that had already been paid in monthly installments. 2 8. In a letter dated January 8, 2003, Plaintiff confirmed the terms of the January 8, 2003 agreement. 9. Defendant made payment to Plaintiff under the terms of the January 8, 2003 agreement for January, February, and March of 2003 but ceased to pay begilIDing in Aprilof2003. 10. In a letter dated April 9, 2003, Plaintiff attempted to convince Defendant to fulfill the terms of the January 8, 2003 agreement but was unable to obtain payment. 11. In an effort to resolve this affair, Plaintiff retained legal counsel, who contacted Defendant in letters dated May 18, 2003 and August 18, 2003 but to which Defendant did not reply. 12. At all times, Plaintiff has acted with good faith and has pursued these claims diligently. 13. It has since come to Plaintiff s attention that Defendant's accounting of sales of wine and spirits brands that Plaintiff represented may be in error and that Plaintiff may have been grossly undercompensated for his services. 14. Throughout 2003, Plaintiff made repeated requests to Defendant for statements detailing the amounts sold of the wine and spirits brands he was engaged to represent. 15. Defendant failed to respond to these requests. 16. In late 2003, after being unable to obtain the information from Defendant, Plaintiff requested and obtained statements from the PelIDsylvania Liquor Control Board detailing the total cases of product sold in 2001 and 2002. " ~ 17. From these statements, Plaintiff was able to ascertain that Defendant had misrepresented the total cases of product sold in 2001 and 2002. 18. Plaintiff also determined that Defend311t had grossly undercompensated Plaintiff under the terms of the May 26, 1998 agreement for his services throughout 2001 and 2002 to the extent of at least $8,000.00 for 2001 3l1d $6,000.00 for 2002. 19. Defendant's misrepresentations were material to the transaction at hand and were made with knowledge of their falsity or recklessness as to whether the information was true or false. 20. Defendant intended to mislead Plaintiff into relying on his misrepresentations of the total an10unts sold for 200 I and 2002 and the an10unts of commission to which Plaintiff was due. 21. Plaintiff justifiably relied on Defend3l1t' s misrepresentations. 22. Plaintiff's injuries have been proximately caused by his reliance on Defendant's misrepresentations. PLAINTIFF'S CAUSE OF ACTION COUNT ONE 23. Plaintiff incorporates by reference, as if completely rewritten herein, the allegations set forth in paragraphs one through twenty-two (1-22) of this Complaint. 24. Defendant has committed unfair, deceptive, and unconscionable acts and practices in violation of the terms of the agreement of May 26, 1998 by failing to pay commissions earned by Plaintiff purSU3l1t to Defendant's agreement. 4 COUNT TWO 25. Plaintiff incorporates by reference, as if completely rev.Titten herein, the allegations set forth in paragraphs one through twenty-two (1-22) of this Complaint. 26. Defendant has committed unfair, deceptive, and unconscionable acts and practices in violation of the terms of the agreement of May 26,1998 by intentionally misrepresenting the amounts it sold of wine and spirits brands represented by Plaintiff and grossly undercompensating Plaintiff for his services. COUNT THREE 27. Plaintiff incorporates by reference, as if completely rewritten herein, the allegations set forth in paragraphs one through twenty-two (1-22) of this Complaint. 28. Defendant has committed unfair, deceptive, and unconscionable acts and practices in . violation of the terms of the agreement of January 8, 2003 by refusing to make payments to Plaintiff pursuant to the terms of Defendant's agreement. PRAYER FOR RELIEF WHEREFORE, Plaintiff requests that this court: 1) ISSUE an order declaring that the Defendant has engaged in acts and practices in violation of the terms of the agreements of May 26,1998 ill1d January 8, 2003. 2) ORDER the Defendant to produce his accounts of amounts sold for the products represented by Defendant from January 1, 2001 through December 31, 2002. 3) ORDER the Defendant to pay Plaintiff any commission he is due for his services from - the period January 1, 2001 to December 31,2002 and which he has not yet received due to Defendant's intentional misrepresentations, plus interest. 5 J. 3) ORDER the Defendant to pay past due commissions to Plaintiff for services rendered in 2003 as determined by amounts sold during that period, plus interest, under the terms of the January 8, 2003 agreement. o 4) GRANT Plaintiff all costs incurred in bringing this action. !,., 5) GRANT such other relief as the Court deems to be just, equitable, and appropriate. ~ t Holston & Crisci Fulton Bank Building Suite 400 200 N. Third Street Harrisburg, Pennsylvania 1710 I (717) 234-1716 Counsel for Plaintiff 6 CERTJlFICATE OIF SERVJlCE I, Henry F. Coyne, Esquire, of Coyne & Coyne, P.C., hereby certify that true copy of the foregoing Defendant's Brief in Support of Preliminary Objections was served this date upon the below-referenced individuals at the below listed address by way of first class mail, postage pre- paid: Joseph D. Holston, Jr., Esq. Holston & Crisci 200 N. Third Street, Suite 400 Harrisburg, PA 17101 Dated: / 0 ~_f34 fJtUM1~~r-e Henry F. Coyne ' 7 ~" '" /" COYNE & COYNE, P.C. BY: Henry F. Coyne, Esqnire Attorney I.D. #06250 3901 Market Street Camp Hill, P A 17011-4227 (717) 737-0464 Attorneys for Defendant IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, COMMONWEALTH OF PENNSYLVANIA WILLIAM J. DE LA TOUR, Plaintiff : Civil Action - Law vs. : No.2004-CV-0674-CV JACK McKENZIE, d/b/a McKENZIE AND COMPANY, Defendant DEFENDANT'S BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS I. Oral Argument Is Not Necessary \'>? c..."l ....J Oral Argument is not necessary as Defendant's Preliminary Objections can be determined by review of the docket and a review of the contents of Plaintiffs "Jurisdiction" action filed in this matter. Should this Honorable Court require Oral Argument, Defendant is ready to procedure as directed by this Court. II. Factual and Procedural Background On February 17, 2004, Plaintiff, William J. De la Tour, filed with this Court an unverified document, entitled "Jurisdiction" and naming Jack McKenzie, d/b/a McKenzie and Company, the Defendant. (See Exhibit "A" attached.) Defendant, Jack McKenzie, is an adult individual residing in Cumberland County, Pennsylvania and does business as McKenzie and Company, whose business office is located at 3507 Market Street, Camp Hill, Hampden Township, Cumberland County, Pennsylvania. At some time subsequent to the filing of the "Jurisdiction", 1 Plaintiff attempted to obtain original service upon the Defendant by way of the U.S. Postal Service, Certified Mail. Plaintiff did not seek, nor did he request original service upon the Defendant pursuant to the Rules of Civil Procedure, i.e., by deputized Sheriff service. On March 26, 2004, Defendant filed Preliminary Objections to the document filed by the Plaintiff. Subsequent to filing those Preliminary Objections, the undersigned counsel attempted to resolve the objections with opposing counsel, however, no response was forthcoming from opposing counsel. This Brief is submitted in support of those Preliminary Objections. III. Statement of Questions Involved 1. Whether Plaintiff's "Jurisdiction" should be stricken because Plaintiff failed to obtain original service upon Defendant who resides and does business in Cumberland County? Suggested Answer: Affirmative 2. Whether this action should be stricken because Dauphin County lacks venue when the dispute at hand involves Cumberland County Defendants and arises out of actions occurring in Cumberland County? 3. Suggested Answer: Affirmative 4. Whether this action should be stricken, as there was no proper verification of the factual averments contained in the document used to commence this civil action? Suggested Answer: Affirmative 5. Whether this action should be stricken when the document filed by the Plaintiff does not include a Notice to Defend in conformity with local rules of Court nor does it state whether the amount in controversy triggers compulsory arbitration pursuant to the local rules of Court? Suggested Answer: Affirmative 6. Where Plaintiff's cause of action is based upon allegations of fraud and mistake and where Plaintiff fails to state such allegations with specificity, must the action be stricken as not in compliance with Pa. R.C.P. l019(b)? Suggested Answer: Affirmative 2 III. Argument Failure to Comply with Rules of Civil Procedure: Lack of Jurisdiction and Venue This Honorable Court does not have jurisdiction nor is Dauphin County the proper venue In this dispute as averred. Plaintiffs initiating document, entitled, "Jurisdiction" is not a recognized means of commencing a civil action in this Commonwealth. Notwithstanding that fatal defect, Plaintiff has attempted to obtain original service upon the Defendant by way of U.S. Postal Service, Certified Mail rather than by service by sheriff. Pa. R. C.P 400 clearly requires that the sheriff shall make original process of service. Specifically, Pa. R.C.P. 400provides that: (a) Except as provided in subdivisions (b) and (c) and in Rules 400.1 and 1930.4, original process shall be served within the Commonwealth only by the sheriff... (d) If service is to be made by the sheriff in a county other than the county in which the action was commenced, the sheriff of the county where service may be made shall be deputized for that purpose by the sheriff of the county where the action was commenced. Id. Furthermore, the Rules of Civil Procedure require that an action may be commenced only one of two ways, i.e., either by filing with the Prothonotary a Praecipe for a writ of summons or by filing a complaint. See, Pa. R.C.P. 1007. Here, the Plaintiff did neither. Instead, Plaintiff filed a document entitled, "Jurisdiction", and then failed to serve that document by sheriff service or deputized sheriff service. Instead, the Plaintiff attempted to serve the "document" by the U.S. Postal Service via Certified Mail. Such service clearly does not comply with Rule 400. The defect in service is a fatal defect and does not provide for nor grant jurisdiction to this honorable court. 3 In addition to the lack of jurisdiction, Plaintiff alleges in the docwnent filed to connnence this action that the cause of action arose pursuant to "contractual" actions and non-actions undertaken by the Defendant in Cumberland County, Pennsylvania. Pa. R.C.P. l006(a), however, provides that venue is proper against an individual in and only in a county in which the individual may be served or in which the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose. Under this rule, the Defendant is a resident of Cumberland County, the business at issue is located in Cumberland County, and Cwnberland County is the county in which certified mailing was attempted. Therefore, clearly, Cumberland County, not Dauphin County, is the county within which venue properly lies. Because the Defendant filed preliminary objections in the nature of Motions to Strike concerning the lack of jurisdiction and venue in this matter, this Honorable Court must grant the Motions Striking the document filed by the Plaintiff Plaintiff alleges in his "document" that certain contractual relationship existed with Defendant and that Defendant made certain promises to Plaintiff and that Defendant made certain misrepresentations to Plaintiff. Plaintiff also alleges that Plaintiff made certain written demands upon Defendant and that Plaintiffs claim is based upon certain written documents Plaintiff received from the Pennsylvania Liquor Control Board. Those written documents contain certain "calculations" in support of Plaintiffs demand for "damages". Plaintiffs document contains no specificity or alleged written documentation in support of his claim as required by the Rules of Civil Procedure. Pa. R.c.P. 1019(i) and Pa. R.c.P. I028(a)(3) require that, if a claim is based upon a writing, the pleader shall attach a copy of the writing unless it is not accessible to the pleader, in which case the pleader must so state together with the reason for its inaccessibility. Here, there 4 is not only a specific reference to documents which support Plaintiffs claim against Defendant, but there is also no indication whatsoever that Defendant has access to the documents in question. As such, Plaintiffs "document" filed as the initiating document is wholly deficient and defective and should be stricken. In addition to the lack of required documentation, Plaintiffs document is defective in that although Plaintiff alIeges fraud or mistake, such alIegations are only made in the most general sense. Pa. R.C.P. lOI9(b), however, mandates that averments of fraud or mistake must be averred with particularity. Because of Plaintiffs patent defect in his "pleading" Plaintiffs "document" against Defendant must be stricken for failing to be in compliance with the mandates and requirements of the Rules of Civil Procedure. Plaintiffs Failure to Attach Verification In addition to the lack of jurisdiction and venue, Plaintiffs action is also fatally flawed in that it contains factual averments not appearing of record and which are not verified in accordance with the Rules of Civil Procedure. No verification signed by the Plaintiff is attached to Plaintiffs document. Pa. R.C. P. 1024, however, mandates all averments offact in pleadings to be verified as defined by Pa. P.c.P. 76. Because of this defect, the Honorable Court must grant the Motion to Strike. Plaintiffs Failure to Complv with Local Rules of Court Dauphin County Rule of Court No. lOIS.I(d) requires the Notice to Defend attached to a complaint be set forth in both English and Spanish. The Notice to Defend attached to Plaintiffs "document", however, is set forth in English, not in English and Spanish as required by local rule of Court. This defect of Plaintiffs document is, yet again, another example of the failure of the 5 Plaintiff to adhere to even the minimum of procedural mandates in commencing and pursuing this "action" against Defendant. Additionally Plaintiffs document is also fatally flawed in that it does not state whether or not the action falls within the purview of compulsory arbitration. Under Dauphin County Rule of Court No. 1301, "all actions in which the amount in controversy is $35,000 or less... shall be submitted to and heard by a Board of Arbitration pursuant to applicable law." Furthermore, Pa. R.C.P. 1021(c) mandates that in counties having rules governing compulsory arbitration, the plaintiff shall state whether the amount claimed does or does not exceed the jurisdictional amount requiring arbitration. Here, Plaintiffs document fails to identify whether or not the amount claimed for damages exceeds the jurisdictional amount for compulsory arbitration in Dauphin County. As such, Plaintiffs failure to comply with the local rules of this Court regarding arbitration and inclusion of English and Spanish Notices to Defend clearly warrant the striking of the "document" filed by the Plaintiff. Conclusion: Defendant's Preliminary Objections must be sustained and Plaintiffs action entitled "Jurisdiction" must be Stricken and Dismissed in accordance with the Pennsylvania Rules of Civil Procedure as well as the Dauphin County Civil Rules of Court. Respectfully Submitted: CO Henry F. Co , Esquire 3901 Market Street Camp Hill, P A 17011-4227 (717) 737-0464 Pa. S. Ct. No. 06250 Attorney for Defendant 7.-t~ Dated: I () ~ .eLf By: 6 IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY-CIVIL ACTION-LAW COMMONWEALTH OF PENNSYLVANIA WILLIAM 1. DE LA TOUR, c/o Joseph D. Holston, Jr., Esq. Holston & Crisci Fulton Bank Building, Suite 400 200 N. Third Street Harrisburg,PA 17101 Plaintiff, v. NO. ~~6M-C." -6wi'-l -CY JACK McKENZIE, d/b/a McKENZIE AND COMPANY, 3507 Market Street, #102 Camp Hill, PA 17011 Defendant. ATTORNEYLD. NO. 34,852 NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must talce 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 against you and a judgment may be entered against you by the court without further notice for any money claimed in this complaint or for any other claim or reliefrequested 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. Dauphin County Lawyer Referral Service 213 North Front Street Harrisburg, Pemlsylvania 171 0 I (717) 232-7536 pir i,' r /7" IN THE COURT OF COMMON PLEAS OF DAUPillN COUNTY-CIVIL ACTION-LAW COMMONWEALTH OF PENNSYL VANIA WILLIAM 1. DE LA TOUR, c/o Joseph D. Holston, Jr., Esq. Holston & Crisci Fulton Bank Building, Suite 400 200 N. Third Street Harrisburg, P A 171 0 1 Plaintiff, v. NO. JACK McKENZIE, d/b/a McKENZIE AND COMPANY, 3507 Market Street, #102 Camp Hill, PA 17011 Defendant. ATTORNEYI.D. NO. 34,852 JURISDICTION I. This Court has personal jurisdiction over the parties in this action. 2. This Court has subject matter jurisdiction over the parties in this action. 3. Venue is proper in Dauphin County, Pennsylvania. STATEMENT OF FACTS . 1. Jack McKenzie, d/b/a McKenzie and Company ("Defendant"), is engaged in business in Dauphin County and throughout the Commonwealth ofPemlsylvania. 2. Defendant is engaged in the business of distributing various wines and spirits in Pennsylvania through the Pennsylvania Liquor Control Board ("Liquor Control Board"). 3. Commencing on May 26,1998, Defendant agreed to employ William 1. de La Tour ("Plaintiff') to represent four brands of wines and spirits within Pennsylvania, including Barefoot/Grape Lalze Wines, Boisset Wines, Beyond Vodka, and John Barr Scotch, at a commission of $2.00 per case sold, witll payment to be sent to Plaintiff after Defendant received payment from the Liquor Control Board. 4. This contractual relationship was confirmed in a letter from Plaintiff to Defendant dated May 31, 1998. 5. Plaintiff continues to represent Defendant's products. 6. On January 8, 2003, the terms of the May 26, 1998 agreement were altered so that Defendant agreed to pay Plaintiff a flat fee of $1,000.00 on the first of each month throughout 2003, regardless of product sold that month, for a yearly total of $12,000, plus any additional amounts found to be due after a year's end reconciliation. 7. Defendant agreed to calculate at year's end the total commission Plaintiff had eamed throughout the year based on the number of cases sold and would pay to Plaintiff any remaining commission Plaintiff was due in excess of the $12,000 that had already been paid in monthly installments. 2 8. In a letter dated January 8, 2003, Plaintiff confirmed the terms of the January 8, 2003 agreement. 9. Defendant made payment to Plaintiff w1der the terms of the January 8, 2003 agreement for January, February, and March of 2003 but ceased to pay begilming in Aprilof2003. 10. In a letter dated April 9, 2003, Plaintiff attempted to convince Defendant to fulfill the terms of the January 8, 2003 agreement but was unable to obtain payment. 11. In an effort to resolve this affair, Plaintiff retained legal cOW1sel, who contacted Defendant in letters dated May 18, 2003 and August 18, 2003 but to which Defendant did not reply. 12. At all times, Plaintiff has acted with good faith and has pursued these claims diligently. 13. It has since come to Plaintiff's attention that Defendant's accoW1ting of sales of wine and spirits brands that Plaintiff represented may be in error and that Plaintiff may have been grossly W1dercompensated for his services. 14. Throughout 2003, Plaintiff made repeated requests to Defendant for statements detailing the amoW1ts sold of the wine and spirits brands he was engaged to represent. 15. Defendant failed to respond to these requests. 16. In late 2003, after being W1able to obtain the information from Defendant, Plaintiff requested and obtained statements from the Pennsylvania Liquor Control Board detailing the total cases of product sold in 200 I and 2002. " ~ 17. From these statements, Plaintiff was able to ascertain that Defendant had misrepresented the total cases of product sold in 2001 and 2002. 18. Plaintiff also determined that Defendant had grossly undercompensated Plaintiff under the terms of the May 26, 1998 agreement for his services throughout 2001 and 2002 to the extent ofat least $8,000.00 for 2001 and $6,000.00 for 2002. 19. Defendant's misrepresentations were material to the transaction at hand and were made with knowledge of their falsity or recklessness as to whether the information was true or false. 20. Defendant intended to mislead Plaintiff into relying on his misrepresentations of the total amounts sold for 2001 and 2002 and the amounts of commission to which Plaintiff was due. 21. Plaintiff justifiably relied on Defendant's misrepresentations. 22. Plaintiffs injuries have been proximately caused by his reliance on Defendant's misrepresentations. PLAINTIFF'S CAUSE OF ACTION COUNT ONE 23. Plaintiff incorporates by reference, as if completely rewritten herein, the allegations set forth in paragraphs one through twenty-two (1-22) of this Complaint. 24. Defendant has committed unfair, deceptive, and unconscionable acts and practices in violation of the terms of the agreement of May 26, 1998 by failing to pay cormnissions earned by Plaintiff pursuant to Defendant's agreement. 4 COUNT TWO 25. Plaintiff incorporates by reference, as if completely rewritten herein, the allegations set forth in paragraphs one through twenty-two (1-22) of this Complaint. 26. Defendant has committed unfair, deceptive, and unconscionable acts and practices in violation of the terms of the agreement of May 26,1998 by intentionally misrepresenting the amounts it sold of wine and spirits brands represented by Plaintiff and grossly undercompensating Plaintiff for his services. COUNT THREE 27. Plaintiff incorporates by reference, as if completely rewritten herein, the allegations set forth in paragraphs one through twenty-two (1-22) of this Complaint. 28. Defendant has committed unfair, deceptive, and unconscionable acts and practices in violation of the terms of the agreement of January 8, 2003 by refusing to make payments to Plaintiff pursuant to the terms of Defendant's agreement. PRAYER FOR RELIEF WHEREFORE, Plaintiff requests that this court: 1) ISSUE an order declaring that the Defendant has engaged in acts and practices in violation of the terms of the agreements of May 26,1998 and January 8, 2003. 2) ORDER the Defendant to produce his accounts of amounts sold for the products represented by Defendant from January 1,2001 tl1rough December 31, 2002. 3) ORDER the Defendant to pay Plaintiff any commission he is due for his services from - the period January 1,2001 to December 31,2002 and which he has not yet received due to Defendant's intentional misrepresentations, plus interest. 5 '. If. 3) ORDER the Defendant to pay past due commissions to Plaintiff for services rendered in 2003 as determined by amounts sold during that period, plus interest, under the terms ofllie January 8, 2003 agreement. <0 4) GRANT Plaintiff all costs incurred in bringing this action. l", 5) GRANT such other relief as the Court deems to be just, equitable, and appropriate. ~~ Holston & Crisci Fulton Bank Building Suite 400 200 N. Third Street Harrisburg, Pennsylvania 1710 I (717) 234-1716 Counsel for Plaintiff 6 CERTKHCATlE 018 SERVICE I, Henry F. Coyne, Esquire, of Coyne & Coyne, P .C., hereby certify that true copy of the foregoing Defendant's Brief in Support of Preliminary Objections was served this date upon the below-referenced individuals at the below listed address by way of first class mail, postage pre- paid: Joseph D. Holston, Jf., Esq. Holston & Crisci 200 N. Third Street, Suite 400 Harrisburg, P A 17101 Dated: I 0 ~_et4 7 r ,'if / COYNE & COYNE, P.C. BY: Henry F. Coyne, Esqnire Attorney 1.0. #06250 3901 Market Street Camp Hill, P A 17011-4227 (717) 737-0464 Attorneys for Defendant IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, COMMONWEALTH OF PENNSYLVANIA WILLIAM J. DE LA TOUR, Plaintiff : Civil Action - Law , vs. : No.2004-CV-0674-CV JACK McKENZIE, d/b/a McKENZIE AND COMPANY, Defendant ;",,) C'1 -.J DEFENDANT'S BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS I. Oral Argument Is Not Necessarv Oral Argument is not necessary as Defendant's Preliminary Objections can be determined by review of the docket and a review of the contents of Plaintiffs "Jurisdiction" action filed in this matter. Should this Honorable Court require Oral Argument, Defendant is ready to procedure as directed by this Court. II. Factual and Procedural Background On February 17, 2004, Plaintiff, William J. De la Tour, filed with this Court an unverified document, entitled "Jurisdiction" and naming Jack McKenzie, d/b/a McKenzie and Company, the Defendant. (See Exhibit "A" attached.) Defendant, Jack McKenzie, is an adult individual residing in Cumberland County, Pennsylvania and does business as McKenzie and Company, whose business office is located at 3507 Market Street, Camp Hill, Hampden Township, Cumberland County. Pennsylvania. At some time subsequent to the filing of the "Jurisdiction", 1 Plaintiff attempted to obtain original service upon the Defendant by way of the U.S. Postal Service, Certified Mail. Plaintiff did not seek, nor did he request originill service upon the Defendant pursuant to the Rilles of Civil Procedure, i.e., by deputized Sheriff service. On March 26, 2004, Defendant filed Preliminary Objections to the document filed by the Plaintiff. Subsequent to filing those Preliminary Obj ections, the undersigned counsel attempted to resolve the objections with opposing counsel, however, no response was forthcoming from opposing counsel. This Brief is submitted in support of those Preliminary Objections. III. Statement of Questions Involved 1. Whether Plaintiffs "Jurisdiction" should be stricken because Plaintiff failed to obtain original service upon Defendant who resides and does business in Cumberland County? Suggested Answer: Affirmative 2. Whether this action should be stricken because Dauphin County lacks venue when the dispute at hand involves Cumberland County Defendants and arises out of actions occurring in Cumberland County? 3. Suggested Answer: Affirmative 4. Whether this action should be stricken, as there was no proper verification of the factual averments contained in the document used to commence this civil action? Suggested Answer: Affirmative 5. Whether this action should be stricken when the document filed by the Plaintiff does not include a Notice to Defend in conformity with local rules of Court nor does it state whether the amount in controversy triggers compulsory arbitration pursuant to the local rules of Court? Suggested Answer: Affirmative 6. Where Plaintiffs cause of action is based upon allegations of fraud and mistake and where Plaintiff fails to state such allegations with specificity, must the action be stricken as not in compliance with Pa. R.C.P. 1019(b)? Suggested Answer: Affirmative 2 III. Argument Failure to Comply with Rules of Civil Procedure: Lack of Jurisdiction and Venue This Honorable Court does not have jurisdiction nor is Dauphin County the proper venue in this dispute as averred. Plaintiffs initiating document, entitled, "Jurisdiction" is not a recognized means of commencing a civil action in this Commonwealth. Notwithstanding that fatal defect, Plaintiff has attempted to obtain original service upon the Defendant by way of US. Postal Service, Certified Mail rather than by service by sheriff. Pa. R.C.P 400 clearly requires that the sheriff shall make original process of service. Specifically, Pa. R.C.P. 40Oprovides that: (a) Except as provided in subdivisions (b) and (c) and in Rules 400.1 and 1930.4, original process shall be served within the Commonwealth only by the sheriff. . . (d) If service is to be made by the sheriff in a county other than the county in which the action was commenced, the sheriff of the county where service may be made shall be deputized for that purpose by the sheriff of the county where the action was commenced. !d. Furthermore, the Rules of Civil Procedure require that an action may be commenced only one of two ways, i.e., either by filing with the Prothonotary a Praecipe for a writ of summons or by filing a complaint. See, Pa. R.C.P. 1007. Here, the Plaintiff did neither. Instead, Plaintiff filed a document entitled, "Jurisdiction", and then failed to serve that document by sheriff service or deputized sheriff service. Instead, the Plaintiff attempted to serve the "document" by the U.S. Postal Service via Certified Mail. Such service clearly does not comply with Rule 400. The defect in service is a fatal defect and does not provide for nor grant jurisdiction to this honorable court. 3 In addition to the lack of jurisdiction, Plaintiff alleges in the document filed to commence this action that the cause of action arose pursuant to "contractual" actions and non-actions undertaken by the Defendant in Cumberland County, Pennsylvania. Pa. R.C.P. l006(a), however, provides that venue is proper against an individual in and only in a county in which the individual may be served or in which the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose. Under this rule, the Defendant is a resident of Cumberland County, the business at issue is located in Cumberland County, and Cumberland County is the county in which certified mailing was attempted. Therefore, clearly, Cumberland County, not Dauphin County, is the county within which venue properly lies. Because the Defendant filed preliminary objections in the nature of Motions to Strike concerning the lack of jurisdiction and venue in this matter, this Honorable Court must grant the Motions Striking the document filed by the Plaintiff. Plaintiff alleges in his "document" that certain contractual relationship existed with Defendant and that Defendant made certain promises to Plaintiff and that Defendant made certain misrepresentations to Plaintiff. Plaintiff also alleges that Plaintiff made certain written demands upon Defendant and that Plaintiffs claim is based upon certain written documents Plaintiff received from the Pennsylvania Liquor Control Board. Those written documents contain certain "calculations" in support of Plaintiffs demand for "damages". Plaintiffs document contains no specificity or alleged written documentation in support of his claim as required by the Rules of Civil Procedure. Pa. R.C.P. l019(i) and Pa. R.C.P. l028(a)(3) require that, if a claim is based upon a writing, the pleader shall attach a copy of the writing unless it is not accessible to the pleader, in which case the pleader must so state together with the reason for its inaccessibility. Here, there 4 is not only a specific reference to documents which support Plaintiff s claim against Defendant, but there is also no indication whatsoever that Defendant has access to the documents in question. As such, Plaintiffs "document" filed as the initiating document is whoIly deficient and defective and should be stricken. In addition to the lack of required documentation, Plaintiffs document is defective in that although Plaintiff aIleges fraud or mistake, such aIlegations are only made in the most general sense. Pa. R.C.P. IOI9(b), however, mandates that averments of fraud or mistake must be averred with particularity. Because of Plaintiff s patent defect in his "pleading" Plaintiff s "document" against Defendant must be stricken for failing to be in compliance with the mandates and requirements of the Rules of Civil Procedure. Plaintiffs Failure to Attach Verification In addition to the lack of jurisdiction and venue, Plaintiffs action is also fatally flawed in that it contains factual averments not appearing of record and which are not verified in accordance with the Rules of Civil Procedure. No verification signed by the Plaintiff is attached to Plaintiffs document. Pa. R.C. P. 1024, however, mandates all averments offact in pleadings to be verified as defined by Pa. P.C.P. 76. Because of this defect, the Honorable Court must grant the Motion to Strike. Plaintiffs Failure to Complv with Local Rules of Court Dauphin County Rule of Court No. IOI8.1(d) requires the Notice to Defend attached to a complaint be set forth in both English and Spanish. The Notice to Defend attached to Plaintiffs "document", however, is set forth in English, not in English and Spanish as required by local rule of Court. This defect of Plaintiff s document is, yet again, another example of the failure ofthe 5 Plaintiff to adhere to even the minimum of procedural mandates in commencing and pursuing this "action" against Defendant. Additionally Plaintiff s document is also fatally flawed in that it does not state whether or not the action falls within the purview of compulsory arbitration. Under Dauphin County Rule of Court No. 1301, "all actions in which the amount in controversy is $35,000 or less... shall be submitted to and heard by a Board of Arbitration pursuant to applicable law." Furthermore, Pa. R.C.P. 102l(c) mandates that in counties having rules governing compulsory arbitration, the plaintiff shall state whether the amount claimed does or does not exceed the jurisdictional amount requiring arbitration. Here, Plaintiff s document fails to identify whether or not the amount claimed for damages exceeds the jurisdictional amount for compulsory arbitration in Dauphin County. As such, Plaintiffs failure to comply with the local rules of this Court regarding arbitration and inclusion of English and Spanish Notices to Defend clearly warrant the striking of the "document" filed by the Plaintiff. Conclusion: Defendant's Preliminary Objections must be sustained and Plaintiffs action entitled "Jurisdiction" must be Stricken and Dismissed in accordance with the Pennsylvania Rules of Civil Procedure as well as the Dauphin County Civil Rules of Court. Respectfully Submitted: CO Dated: I (J ~ ..e L.( By: ~ Henry F. Co , Esquire 3901 Market Street Camp Hill, PA 17011-4227 (717) 737-0464 Pa. S. Ct. No. 06250 Attorney for Defendant 6 IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY-CIVIL ACTION-LAW COMMOl'\-wEAL TH OF PENNSYLVANIA WILLIAM J. DE LA TOUR, clo Joseph D. Holston, Jr., Esq. Holston & Crisci Fulton Bank Building, Suite 400 200 N. Third Street Harrisburg, PA 17101 Plaintiff, v. NO. ~j.(;(fl -c'i -6(P,4-CY .'. JACK McKENZIE, d/bla McKENZIE AND COMPANY, 3507 Market Street, #102 Camp Hill, PA 17011 Defendant. ATTORNEY I.D NO. 34,852 NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must talce action vvithin 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. Yau are warned that if you fail to do so the case may proceed against you 3l1d a judgment may be entered against you by the court 'without further notice for any money claimed in this 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 LA WYERAT 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. Dauphin County Lawyer Referral Service 213 North Front Street Harrisburg, Pennsylvania 17101 (717) 232-7536 ~'f. hI' hI"; ',t' IN THE COURT OF COMMON PLEAS OF DAUPIDN COUNTY-CIVIL ACTION-LAW COMMONWEALTH OF PENNSYLVANIA WILLLAJ\1 J. DE LA TOUR, c/o Joseph D. Holston, Jr., Esq. Holston & Crisci Fulton Bank Building, Suite 400 200 N. Third Street Harrisburg, P A 17101 Plaintiff, v. NO. JACK McKENZIE, d/b/a McKENZIE AND COMPANY, 3507 Market Street, # 1 02 Camp Hill, PA 17011 Defendant. ATTORNEYLD. NO. 34,852 JURISDICTION 1. This Court has personal jurisdiction over the parties in this action. 2. This Court has subject matter jurisdiction over the parties in this action. 3. Venue is proper in Dauphin County, Pennsylvania. 1 STATEMENT OF FACTS . 1. Jack McKenzie, d/b/a McKenzie and Company ("Defendant"), is engaged in business in Dauphin County and throughout the Commonwealth ofPemlsylvania. 2. Defendant is engaged in the business of distributing various wines and spirits in pennsylvania through the Pennsylvania Liquor Control Board ("Liquor Control Board"). 3. Commencing on May 26,1998, Defendant agreed to employ William J. de La Tour ("Plaintiff') to represent four brands of wines and spirits within Pelillsylvania, including Barefoot/Grape Lake Wines, Boisset Wines, Beyond Vodka, and John Barr Scotch, at a commission of $2.00 per case sold, with payment to be sent to Plaintiff after Defendant received payment from the Liquor Control Board. 4. This contractual relationship was confirmed in a letter from Plaintiff to Defendant dated May 31,1998. 5. Plaintiff continues to represent Defendant's products. 6. On January 8, 2003, the terms of the May 26, 1998 agreement were altered so that Defendant agreed to pay Plaintiff a flat fee of $1,000.00 on the first of each month throughout 2003, regardless of product sold that month, for a yearly total of $12,000, plus any additional amounts found to be due after a year's end reconciliation. 7. Defendant agreed to calculate at year's end the total commission Plaintiff had earned throughout the year based on the number of cases sold and would pay to Plaintiff any remaining commission Plaintiff was due in excess of the $12,000 that had already been paid in monthly installments. 2 8. In a letter dated January 8, 2003, Plaintiff confirmed the terms of the January 8, 2003 agreement. 9. Defendant made payment to Plaintiff under the terms of the January 8, 2003 agreement for January, February, and March of 2003 but ceased to pay beginning in Aprilof2003. 10. In a letter dated April 9, 2003, Plaintiff attempted to convince Defendant to fulfill the terms of the January 8,2003 agreement but was unable to obtain payment. 11. In an effort to resolve this affair, Plaintiff retained legal counsel, who contacted Defendant in letters dated May 18, 2003 and August 18, 2003 but to which Defendant did not reply. 12. At all times, Plaintiff has acted with good faith and has pursued these claims diligently. 13. It has since come to Plaintiffs attention that Defendant's accounting of sales of wine and spirits brands that Plaintiff represented may be in error and that Plaintiff may have been grossly undercompensated for his services. 14. Throughout 2003, Plaintiff made repeated requests to Defendant for statements detailing the amounts sold of the wine and spirits brands he was engaged to represent. 15. Defendant failed to respond to these requests. 16. In late 2003, after being unable to obtain the information from Defendant, Plaintiff requested and obtained statements from the Pennsylvania Liquor Control Board detailing the total cases of product sold in 2001 and 2002. " .J 17. From these statements, Plaintiff was able to ascertain that Defendant had misrepresented the total cases of product sold in 2001 and 2002. 18. Plaintiff also determined that Defendant had grossly undercompensated Plaintiff under the terms of the May 26, 1998 agreement for his services throughout 2001 and 2002 to the extent of at least $8,000.00 for 2001 and $6,000.00 for 2002. 19. Defendant's misrepresentations were material to the transaction at hand and were made 'with knowledge of their falsity or recklessness as to whether the information was true or false. 20. Defendant intended to mislead Plaintiff into relying on his misrepresentations of the total amounts sold for 200 I and 2002 and the amounts of commission to which Plaintiff was due. 21. Plaintiff justifiably relied on Defendant's misrepresentations. 22. Plaintiff s injuries have been proximately caused by his reliance on Defendant's misrepresentations. PLAINTIFF'S CAUSE OF ACTION COUNT ONE 23. Plaintiff incorporates by reference, as if completely rewritten herein, the allegations set forth in paragraphs one through twenty-two (1-22) of this Complaint. 24. Defendant has committed unfair, deceptive, and \Ll1conscionable acts and practices in violation of the terms of the agreement of May 26, 1998 by failing to pay commissions earned by Plaintiff pursuant to Defendant's agreement. 4 COl:JNT TWO 25. Plaintiff incorporates by reference, as if completely re\\'Titten herein, the allegations set forth in paragraphs one through twenty-two (1-22) of this Complaint. 26. Defendant has committed unfair, deceptive, and unconscionable acts and practices in violation of the terms of the agreement of May 26,1998 by intentionally misrepresenting the amounts it sold of wine and spirits brands represented by Plaintiff and grossly undercompensating Plaintiff for his services. COUNT THREE 27. Plaintiff incorporates by reference, as if completely rewritten herein, tl1e allegations set forth in paragraphs one through twenty-two (1-22) of this Complaint. 28. Defendant has committed unfair, deceptive, and unconscionable acts and practices in . violation of the terms of the agreement of January 8, 2003 by refusing to make payments to Plaintiff pursuant to the terms of Defendant's agreement. PRAYER FOR RELIEF WHEREFORE, Plaintiff requests that this court: 1) ISSlJ"E an order declaring that the Defendant has engaged in acts and practices in violation of the terms of the agreements of May 26,1998 and January 8, 2003. 2) ORDER the Defendant to produce his accounts of amounts sold for the products represented by Defendant from January 1,2001 through December 31, 2002. 3) ORDER the Defendant to pay Plaintiff any commission he is due for his services from - the period January 1,2001 to December 31, 2002 and which he has not yet received due to Defendant's intentional misrepresentations, plus interest. 5 If. 3) ORDER the Defendant to pay past due commissions to Plaintiff for services rendered in 2003 as determined by amounts sold during that period, plus interest, under the terms of the January 8, 2003 agreement. o 4) GRANT Plaintiff all costs incurred in bringing this action. t,., 5) GRANT such other relief as the Court deems to be just, equitable, and appropriate. ~ 't Holston & Crisci Fulton Bank Building Suite 400 200 N. Third Street Harrisburg, Pennsylvania 17101 (717) 234-1716 Counsel for Plaintiff 6 CER1nHCATE OF SERVICE I, Hemy F. Coyne, Esquire, of Coyne & Coyne, P .C., hereby certify that true copy of the foregoing Defendant's Brief in Support of Preliminary Objections was served this date upon the below-referenced individuals at the below listed address by way of first class mail, postage pre- paid: Joseph D. Holston, JI., Esq. Holston & Crisci 200 N. Third Street, Suite 400 Harrisburg, PA 17101 Dated: I 0 ~t34 H~~~ 7 \ ~ 7J ti (') "" 0 e:::., C-, '<::.:..., -n #- en j <- 2:'; ~ ~- ... - ....... ~ (.t..; - II') ~ !'': ~ V) ~ W \..() (.,,) ~ D (.' " .......t:- O;:) #; ~ " WILLIAM J. de LaTOUR, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. JACK McKENZIE, d/b/a McKENZIE AND COMPANY, Defendant No. oS - ;).9P (!;u~L ~'UU-v( PRAECIPE FOR WITHDRAWAL OF APPEARANCE WITHOUT LEAVE OF COURT (Rule 1012(b) (2) (i)) TO THE PROTHONOTARY: Please withdraw my appearance on behalf of plaintiff. Bradford Dorrance, Esquire has entered his appearance for plaintiff. I hereby certify that this change is not intended to, nor will it, delay this proceeding to the best of my knowledge, information, and belief. -----------. i '" /- Jos , Jr. I.D. No. 34852 HOLSTON & CRISCI 200 N. Third Street Fulton Bank Building Suite 400 Harrisburg, PA 17101 (717) 234-1824 . CERTIFICATE OF SERVICE I hereby certify that I have this day served a copy of the foregoing document upon the person(s) and in the manner indicated below: First-Class Mail. Postaqe preoaid Addressed as Follows: Henry F. Coyne, Esquire 3901 Market Street Camp Hill, PA 17011-4227 Dated: 1/I'-!c6 ~ Bradford -- - '-- Dorrance , - t~..:J () ~:;:~ ;'1\ r.1'\ <.- :;::~. .,ft wo"'''' x:- .... .~) WILLIAM J. de LaTOUR, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. JACK McKENZIE, d/b/a McKENZIE AND COMPANY, Defendant No. O~ - ~qp eu~Lc,-~ SUBSTITUTION OF COUNSEL WITHOUT LEAVE OF COURT (Rule 1012 (b) (2) (ii) ) PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter my appearance on behalf of plaintiff. I hereby certify that this change is not intended to, nor will it, delay this proceeding to the best of my knowledge, information and belief. Papers may be served at the address set forth below. ~~- I.D. No. 32147 KEEFER WOOD ALLEN & RAHAL, LLP 210 Walnut Street P. O. Box 11963 Harrisburg, PA 17108-1963 (717) 255-8014 ~ -- (Attorneys for Plaintiff) , CERTIFICATE OF SERVICE I hereby certify that I have this day served a copy of the foregoing document upon the person(s) and in the manner indicated below: First-Class Mail, Postage Prepaid Addressed as Follows: Henry F. Coyne, Esquire 3901 Market Street Camp Hill, PA 17011-4227 Dated: I) 12--) (j r; ~9~ Bradford Dorrance .~ , t'"'...) c::) ,";';'.1 ~, s- ..-,; ~ ~- ..j;.:- l..9 (.) Ui () -n --1 ~ f"tl?l P:! T' ~~) ,~ ) tn