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HomeMy WebLinkAbout14-6686 Supreme Cod ,Ot-pennsylvania CouF&O"f-CO�YIllloil+'Pleas For ProthonotaryUse Only: Y �tt T ! CY�VjLI� r Sh �t Docket N !I� 02n 'r&-' //1 County _ /_ /� t�� IN l.tAAJ The information collected on this form is used solely.for court administration purposes. This.1brrn does not supplement or replace the.iling and service of pleadings or other papers os required by law or rules of court. Commencement of Action: S ❑ Complaint Q Writ of Summons ❑ Petition ❑ Transfer from Another Jurisdiction ❑ Declaration of Taking E C Lead Plaintiff's Name: Lead Defendant's Name: Susan J. Hildebrand Mechanicsburg Fitness, Inc. T Dollar Amount Requested: ❑within arbitration limits I Are money damages requested? YNo O 91es El one) ❑✓outside arbitration limits N Is this a Class Action Suit? ❑Yes ❑✓ No Is this an MDJAppeal? ❑ Yes ❑✓ No A Name of Plaintiff/Appellant's Attorney: Keith B. DeArmond, Esq. ❑ Check here if you have no attorney (are a Self-Represented (Pro Sel Litigant) Nature of the Case: Place an "X"to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim, check the one that you consider most important. TORT(do not include Mass Tort) CONTRACT (do not include Judgments) CIVIL APPEALS ❑ Intentional ❑Buyer Plaintiff Administrative Agencies ❑ Malicious Prosecution ❑Debt Collection: Credit Card ❑ Board of Assessment ❑ Motor Vehicle ❑Debt Collection: Other ❑ Board of Elections Nuisance Dept. of Transportation Premises Liability B Statutory Appeal: Other S Product Liability (does not include mass tort) E]Employment Dispute: E Slander/Libel/Defamation Discrimination C e Other: ❑Employment Dispute: Other F] Zoning Board T ❑ Other: I ❑✓ Other: O MASS TORT Breach of Contract ❑ Asbestos N Tobacco Toxic Tort-DES Toxic Tort-Implant REAL PROPERTY MISCELLANEOUS ❑ Toxic Waste ❑Ejectment ❑Common Law/Statutory Arbitration B ❑ Other: Eminent Domain/Condemnation ❑Declaratory Judgment HGround Rent Mandamus ❑Landlord/Tenant Dispute 8 Non-Domestic Relations Mortgage Foreclosure: Residential Restraining Order PROFESSIONAL LIABLITY Mortgage Foreclosure: Commercial ❑Quo Warranto ❑ Dental ❑Partition ❑Replevin ❑ Legal ❑Quiet Title ❑Other: ❑ Medical ❑Other: ❑ Other Professional: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA CIVIL DIVISION Plaintiff(s)&Address(es) Susan J. Hildebrand Kevin E. Keefer Case No. 41 �tA Civil Term VS. Civil Action Defendant(s)&Address(es) Mechanicsburg Fitness, Inc., d/b/a Gold's Gym e./© �� S� r= Ybc'kz�" c 3 ' -- (0 PRAECIPE FOR WRIT OF SUMMONS ,D ,�r... TO THE PROTHONOTARY/CLERK OF SAID COURT: Issue summons in the above case Writ of Summons shall be issued and forwarded to Attor a /She ' Please Circle choice Date : (( ( ( Keil naturb2HrtYolO eb Print Name: tf Address: 18 S. George Street Suite York, PA 17401 Telephone#:717-885-0937 Supreme Court ID Number: 58878 WRIT OF SUMMONS To: Mechanicsburg Fitness, Inc., d/b/a Gold's Gym YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF( HAS/HAVE COMMENCED AN ACTION AGAINST YOU. ` :- rothonotary/ erk, Civil Division Date:_-� "/"7 /�/ by Deputy 11 Sr.7-5- fes` 3 13 5-.0 SUSAN J. HILDABRAND and : IN THE COURT OF COMMON PLEAS KEVIN E. KEEFER, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v. : NO. 14-6686 MECHANICSBURG FITNESS, INC.: D/B/A GOLD'S GYM, : CIVIL ACTION — LAW Defendants PRAECIPE AND RULE TO FILE COMPLAINT TO THE PROTHONOTARY OF SAID COURT: Kindly issue rule on Plaintiffs, Susan J. Hildebrand and Kevin E. Keefer to file a Complaint in the above -captioned matter within twenty (20) days after service of the rule or suffer a judgment of non pros. Date: December 10, 2014 Respectfully submitted, SERRATELLI, SCHIFFMAN, & BROWN P. C. /6{2_ S'tev'en J. Schi 'fman, Esquire Carol L. Verish, Esquire Pa. ID Nos. 25488 & 91284 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110-9670 (717)540-9170 NOW, this 11 day of December, 2014, RULE ISSUED AS ABOVE. Prothonotary CERTIFICATE OF SERVICE I, Carol L. Verish, Esquire, hereby certify that I have served a true and correct copy of the foregoing Praecipe and Rule to File Complaint by first class, postage prepaid, addressed as follows: Keith DeArmond DeArmond & Associates of York, LLC 18 South George Street Suite 610 York, PA 17401 Dated: December 10, 2014 SERRATELLL SCHIFFMAN, & BROWN P.C. By ria(42) St ven,J! S chi ffmal, Esquire Ca?t1 L. Verish, Esquire Pa. ID Nos. 25488 & 91284 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110-9670 (717)540-9170 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Susan J. Hildebrand and Kevin E. Keefer vs. Plaintiffs : Civil Action No. 14-6686 Civil Action In Law Mechanicsburg Fitness, Inc. d/b/a Gold's Gym : Defendant NOTICE TO DEFEND CUMBERLAND COUNTY PENNSYLVANIA 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 AN ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 SUSAN J HILDEBRAND IN THE COURT OF COMMON PLEAS KEVIN E, KEEFER, OF CUMBERLAND COUNTY, Plaintiffs PENNSYLVANIA VS. MECHANICSBURG FITNESS, INC., D/B/A GOLD'S GYM, Defendant NO. 14-6686 CIVIL ACTION — LAW Complaint 1. The Plaintiffs are Susan J. Hildebrand, formerly known as Susan Facini, who resides at 1534 Inverness Drive, Mechanicsburg, Cumberland County, Pennsylvania 17050 and Kevin E. Keefer, who resides at 13 Mountain Crest Drive, Dillsburg, York County, Pennsylvania 17019. 2. The Defendant, Mechanicsburg Fitness, Inc., d/b/a Gold's Gym, is a corporation registered in the Commonwealth of Pennsylvania with a principal place of business previously located at 3401 Hartzdale Drive, Camp Hill, Cumberland County, Pennsylvania 17011. 3. On or about, March 15, 2004 in Cumberland County, Pennsylvania, the Plaintiffs, Susan J. Hildebrand and Kevin E. Keefer, entered into separate contracts with the Defendant, Mechanicsburg Fitness, Inc., copies of which are attached hereto and incorporated herein by reference as Exhibit "A" and Exhibit "B." 4. Pursuant to the aforementioned Contracts, the Defendant agreed to allow the Plaintiffs to provide certified personal training services to clients and members of Gold's Gym at the Camp Hill location for a usage fee of $30 per month each and for other good and valuable consideration. In Paragraph 5 of the aforementioned Contracts, the term of the Agreement is defined as "for as long as the Club remains in business, and shall be assigned by the Club to any new owner or operator in the event of a sale, transfer or other change in control in the ownership or operation of the Club." 5. The consideration set forth in the Contracts is fair and reasonable. 6. The Plaintiffs have performed all conditions, covenants and promises required by them on their part to be performed in accordance with the terms and conditions of the Contract. 7. On or about, September of 2014, the Defendant breached the contract by purportedly selling the assets of the Club to Jim Czupil, d/b/a Linglestown Family Fitness, L.L.C. The Contracts of the Plaintiffs were not assigned to the new owner, as stipulated in Paragraph 5 of said Contracts, and the new management of the Club refused to abide by the terms of the Plaintiffs' Contracts. The Plaintiffs were required to vacate Gold's Gym in Camp Hill, Pennsylvania, by September 19, 2014, by the new management of the Club. 8. By reason of Defendant's breach of contract, Plaintiff, Susan J. Hildebrand has suffered damages in the amount of $130,950.00 and Kevin E. Keefer has suffered damages in the amount of $283,240.00. 9. The damages sought in this suit exceed the amount set for Compulsory Arbitration. WHEREFORE, Plaintiff, Susan J. Hildebrand prays judgment against Defendant as follows: 1. For compensatory damages in the amount of $130,950.00, 2. For costs of suit herein incurred, and 3. For such other and further relief as the Court may deem proper. WHEREFORE, Plaintiff, Kevin E. Keefer, prays judgment against the Defendant as follows: 1. For compensatory damages in the amount of $283,240.00, 2. For costs of suit herein incurred, and 3. For such other and further relief as the Court may deem proper. Respectfully submitted, DeArmond & Associates of York, L.L.C. Keith B. DeArmond, Esq. Supreme Court I.D. #58878 18 S. George Street, STE 610 York, PA 17401 (717) 885-0937 (717) 845-4100 (fax) kbdlaw@gmail.com VERIFICATION I, Susan J. Hildebrand, hereby state that the facts are true and correct to the best of my knowledge, information and belief and that I expect to be able to prove the same at a hearing held in this matter. I understand that the statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities). Date k2/3(71(4 usan J. Hi brand VERIFICATION I, Kevin E. Keefer, hereby state that the facts are true and correct to the best of my knowledge, information and belief and that I expect to be able to prove the same at a hearing held in this matter. I understand that the statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities). Date K4 -Kevin E. Keefer % Agreement with Independent Contractor Personal Trainer 3/13/04 This Agreement is made this /Eli' day of l "(U. 14,..- , 2004 between Mechanicsburg Fess Inc., d/b/a Gold's Gym (hereinafter referred to as "Club") and A -1-a .bo. , independent personal trainer (hereinafter referred to as "Special Independent Certified Personal Trainer" or "SICPT"), as it relates to contracted personal training services offered on "Club" premises. This Agreement will allow the SICPT to conduct business and provide services to clients and members of Gold's Gym at its Camp Hill, PA location, i.e. on Club premises. In consideration for Club providing properly maintained equipment, a clean and safe environment, and promotion of his services, the SICPT agrees to the following: 1 The-SIGP-T- will provide to Cluban -updated,-current Personal Trainer 3S't certificate from a nationally accredited fitness organisation, i.e., NASM, PJSRP ACE, NSCA, etc., or show proof of an undergraduate degree in a related fitness field (i.e. Physiology, Health & Fitness, Exercise Science, etc.). The SICPT will keep such certification current by obtaining the required number of Continuing Education Units from accredited institutions. If SICPT fails to have a current certification as described in this paragraph, Club shall have the right to suspend SICPT from conducting business on its premises under this Agreement until such time as a new written certification is provided. 2. The SICPT will maintain liability insurance in an amount reasonably acceptable to Club and will provide Club with proof of insurance prior to training any clients on Club premises. 3. The SICPT will obtain and maintain signed liability waivers from each and every client he/she trains on Club premises and agrees to hold Club harmless from any legal action that may result from SICPT's conduct of business on Club premises, except for legal actions resulting from. Club's negligence or willful misconduct. The SICPT will provide Club with copies of said liability waivers prior to training clients on Club premises. 4. The SICPT agrees to provide to Club, prior to Club opening for business, a list of all clients he/she trains on Club premises. The SICPT further agrees to provide Club an updated quarterly list of all such clients. A" 664444 let'r 5. The term of this Agreement shall be for so long as the Club remains in business, and shall be assigned by Club to any new owner or operator in the event of a sale, transfer or other change of control in the ownership or operation of the Club. Provided, however, that Club shall have the right to terminate this Agreement if SICPT breaches any of his/her duties or obligations under the Agreement, or acts with willful intent to cause harm to the Club or its members and, after being notified in writing of such breach or harm, fails to cure such breach, if the breach is capable of being cured, or to correct such harm, if it is capable of being corrected, within thirty days from receipt of the written notice specifying the breach or harm. Further provided that SICPT shall have the right to terminate this Agreement if Club breaches any of the terms of this Agreement and, after being notified of such breach in writing by SICPT, fails to cure such breach within thirty days from receipt of such written notice. SICPT shall also have the right to terminate the Agreement without cause upon sixty days prior written notice to Club. If the Agreement is terminated under any provision of this Agreement, Club agrees that SICPT shall have the right to continue to provide his/her services at Club and shall continue to pay Club the fee set forth in paragraph 9 during the period of time from when any prior required written notice of termination is given and the actual date.of.termination, _for _example, --if SICPT gives -the -Club a sixty 'ay notice of termination as set forth above, Club shall continue to allow SICPT to conduct his/her business during that sixty day period prior to the actual termination date of the Agreement set forth in the written notice. Likewise, if Club terminates the Agreement under the thirty day termination provision set forth above, Club shall allow SICPT to continue to conduct his/her business and SICPT shall continue to pay the fee set forth in paragraph 9 during the thirty day period prior to termination of the Agreement, except as set forth in paragraph 1 above and paragraph 13 below. 6. SICPT agrees to obtain appropriate health background information, medical releases (as appropriate), and any other applicable exercise guidelines from each of his clients and, where and if appropriate, from the client's primary care physician. Such information and releases must be obtained from any client prior to embarking on an exercise program with SICPT on Club premises. 7. SICPT agrees to keep his/her own appointment book and to instruct clients that all calls regarding training appointments with SICPT are to be made directly to SICPT. Club will have no responsibility for setting, changing or canceling appointments. 8. SICPT agrees to make Club his/her primary site for conducting business during the term of this Agreement, and further agrees to wear the Gold's 3/14/2004 2 Gym -branded clothing reasonably approved by Club while conducting business on the Club premises. 9. SICPT agrees to pay the Club a monthly usage fee of $30 to compensate Club for use of its premises under this Agreement, which monthly fee shall be paid in advance on or before the 10th day of each month for the use of the Club. 10. The Club is scheduled to open in April 2004 and, notwithstanding the provisions of paragraph 8 of this Agreement, both parties acknowledge that, prior to such opening, SICPT shall have the right to provide his/her services to members and/or clients at any health facility of his/her choosing. Further, provided, that in the event the Club has not opened on or before May 30, 2004, SICPT has the right and option to terminate this Agreement upon written notice to Club. 12. Club shall assist in promoting SICPT's services through posting of information regarding such services in highly visible areas of the Club and through inclusion in advertising or promotional materials produced by Club. 13. SICPT agrees to abide by all established Club policies and procedures including those policies and procedures applicable to Club employees. If SICPT fails to remain in compliance with such Club policies and procedures, SICPT shall be considered to have breached this agreement and Club shall take any and all appropriate action. 14. Polices governing Club conduct, including procedures for appeals of infractions will be developed and provided to SICPT and shall become an attachment to this Agreement. 15. The contact person for all inquiries or notices under this Agreement shall be the General Manager, Gold's Gym, at 717-303-2070, unless Club notifies SICPT otherwise in writing. (Signature page to follow) 3/14/2004 3 IN WITNESS WHEREOF, the undersigned, in consideration of the benefits set forth above and intending to be legally bound, have executed this Agreement as of the date and year first written above. MECHANICSBURG FITNESS INC., D/B/A GOLD'S GYM "Club" By: Y07/%f � �/LQP�YIn✓' Title: cP/' SPECIAL INDEPENDENT CERTIFIED PERSONAL TRAINER (Mame) 3/14/2004 4 Agreement with Independent Contractor Personal Trainer 3/13/04 This Agreement is made this / day of // alt -C4`1/4-- , 2004 between Mechanicsburg Fitness Inc., d/b/a Gold's Gym (hereinafter referred to as "Club") and , independent personal trainer (hereinafter referred to as "Special Independent Certified Personal Trainer" or "SICPT"), as it relates to contracted personal training services offered on "Club" premises. This Agreement will allow the SICPT to conduct business and provide services to clients and members of Gold's Gym at its Camp Hill, PA location, i.e. on Club premises. In consideration for Club providing properly maintained equipment, a clean and safe environment, and promotion of his services, the SICPT agrees to the following: The SICPT will provide to Club an updated, current Personal Trainer certificate from a nationally accredited fitness organi7ation, i.e., NASM, ACE, NSCA, etc., or show proof of an undergraduate degree in a related fitness field (i.e. Physiology, Health & Fitness, Exercise Science, etc.). The SICPT will keep such certification current by obtaining the required number of Continuing Education Units from accredited institutions. If SICPT fails to have a current certification as described in this paragraph, Club shall have the right to suspend SICPT from conducting business on its premises under this Agreement until such time as a new written certification is provided. 2. The SICPT will maintain liability insurance in an amount reasonably acceptable to Club and will provide Club with proof of insurance prior to training any clients on Club premises. 3. The SICPT will obtain and maintain signed liability waivers from each and every client he/she trains on Club premises and agrees to hold Club harmless from any legal action that may result from SICPT's conduct of business on Club premises, except for legal actions resulting from Club's negligence or willful misconduct. The SICPT will provide Club with copies of said liability waivers prior to training clients on Club premises. 4. The SICPT agrees to provide to Club, prior to Club opening for business, a list of all clients he/she trains on Club premises. The SICPT further agrees to provide Club an updated quarterly list of all such clients. 5. The term of this Agreement shall be for so long as the Club remains in business, and shall be assigned by Club to any new owner or operator in the event of a sale, transfer or other change of control in the ownership or operation of the Club. Provided, however, that Club shall have the right to terminate this Agreement if SICPT breaches any of his/her duties or obligations under the Agreement, or acts with willful intent to cause harm to the Club or its members and, after being notified in writing of such breach or harm, fails to cure such breach, if the breach is capable of being cured, or to correct such harm, if it is capable of being corrected, within thirty days from receipt of the written notice specifying the breach or harm. Further provided that SICPT shall have the right to terminate this Agreement if Club breaches any of the terms of this Agreement and, after being notified of such breach in writing by SICPT, fails to cure such breach within thu ty days from receipi of such written notice. SICPT shall also have the right to terminate the Agreement without cause upon sixty days prior written notice to Club. If the Agreement is terminated under any provision of this Agreement, Club agrees that SICPT shall have the right to continue to provide his/her services at Club and shall continue to pay Club the fee set forth in paragraph 9 during the period of time from when any prior required written notice of termination is given and the actual date of termination, for example, if SICPT gives the Club a sixty day notice of termination as set forth above, Club shall continue to allow SICPT to conduct his/her business during that sixty day period prior to the actual termination date of the Agreement set forth in the written notice. Likewise, if Club terminates the Agreement under the thirty day termination provision set forth above, Club shall allow SICPT to continue to conduct his/her business and SICPT shall continue to pay the fee set forth in paragraph 9 during the thirty day period prior to termination of the Agreement, except as set forth in paragraph 1 above and paragraph 13 below. 6. SICPT agrees to obtain appropriate health background information, medical releases (as appropriate), and any other applicable exercise guidelines from each of his clients and, where and if appropriate, from the client's primary care physician. Such information and releases must be obtained from any client prior to embarking on an exercise program with SICPT on Club premises. 7. SICPT agrees to keep his/her own appointment book and to instruct clients that all calls regarding training appointments with SICPT are to be made directly to SICPT. Club will have no responsibility for setting, changing or canceling appointments. 8. SICPT agrees to make Club his/her primary site for conducting business during the teinn of this Agreement, and further agrees to wear the Gold's Mike Sponsier agreement 3/14/2004 2 Gym -branded clothing reasonably approved by Club while conducting business on the Club premises. 9. SICPT agrees to pay the Club a monthly usage fee of $30 to compensate Club for use of its premises under this Agreement, which monthly fee shall be paid in advance on or before the 10th day of each month for the use of the Club. 10. The Club is scheduled to open in April 2004 and, notwithstanding the provisions of paragraph 8 of this Agreement, both parties acknowledge that, prior to such opening, SICPT shall have the right to provide his/her services to members and/or clients at any health facility of his/her choosing. Further, provided, that in the event the Club has not opened on or before May 30, 2004, SICPT has the right and option to terminate this Agreement upon written notice to Club. 12. Club shall assist in promoting SICPT's services through posting of information regarding such services in highly visible areas of the Club and through inclusion in advertising or promotional materials produced by Club. 13. SICPT agrees to abide by all established Club policies and procedures including those policies and procedures applicable to Club employees. If SICPT fails to remain in compliance with such Club policies and procedures, SICPT shall be considered to have breached this agreement and Club shall take any and all appropriate action. 14. Polices governing Club conduct, including procedures for appeals of infractions will be developed and provided to SICPT and shall become an attachment to this Agreement. 15. The contact person for all inquiries or notices under this Agreement shall be the General Manager, Gold's Gym, at 717-303-2070, unless Club notifies SICPT otherwise in writing. (Signature page to follow) Mike Sponsler agreement 3/14/2004 IN WITNESS WHEREOF, the undersigned, in consideration of the benefits set forth above and intending to be legally bound, have executed this Agreement as of the date and year first written above. MECHANICSBURG FITNESS INC., D/B/A GOLD'S GYM "Club" 4f By: 11/(t. � L Title: +1,6.4✓t.1 t.,,) SPECIAL INDEPENDENT CERTIFIED PERSONAL TRAINER Mike Sponsler agreement 3/14/2004 4 CERTIFICATE OF SERVICE I, Keith B. Dearmond, Esquire, hereby certify that I have served a true and correct Copy of the foregoing Praecipe and Rule to File Complaint by first class, postage prepaid, Addressed as follows: Steven J. Schiffman, Esquire Carol L. Verish, Esquire Pa. ID Nos. 25488 & 91284 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110-9670 Dated: December 30, 2014 By eith . DeArmond, Esquire DeArmond & Associates of York, LLC 18 South George Street Suite 610 York, PA 17401 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Susan J. Hildebrand Kevin E. Keefer v. Civil Action No. 14 (stegc Mechanicsburg Fitness, Inc., d/b/a m Gold's Gym Civil Action in Law rrri tea, .....i ; ) cnLco Cal Acceptance of Se: v Icc }-: I accept service of the Writ of Summons on behalf of the Defendant, Mechanicsbrirg Fitness, Inc., d/b/a Gold's Gym and hereby certify that I am authorized to do so. Date:la15 Itt-t Steven J. Schiffman, Esq. Carol L. Verish, Esq. PA ID Nos. 25488 & 91284 SERRATELLI, SCHIFFMAN, & BROWN, P.C. 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110-9670 (717) 540-9170 sschiffman@ssbc-law.com cverish@ssbc-law.com 1*- -2 CC:linT sit YLVANI;i SUSAN J. HILDABRAND and KEVIN E. KEEFER, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v. : NO. 14-6686 MECHANICSBURG FITNESS, INC.: D/B/A GOLD'S GYM, : CIVIL ACTION — LAW Defendant MOTION FOR PROTECTIVE ORDER PURSUANT TO Pa.R.C.P. 4003.8 AND NOW, comes Defendant, Mechanicsburg Fitness, Inc. f/d/b/a Gold's Gym (caption erroneously states that Defendant is currently doing business as Gold's Gym), by and through its counsel, Serratelli, Schiffman & Brown, P.C., and files its Motion for Protective Order Pursuant to Pa.R.C.P. 4003.8, and in support thereof avers as follows: Procedural and Factual History 1. Plaintiff Susan J. Hildabrand ("Plaintiff Hildabrand") is an adult individual with an address unknown to Defendant. 2. Plaintiff Kevin E. Keefer ("Plaintiff Keefer") is an adult individual with an address unknown to Defendant. Plaintiff Hildabrand and Plaintiff Keefer are collectively referred to hereinafter as "Plaintiffs." 3. Defendant Mechanicsburg Fitness, Inc. is a Pennsylvania business corporation located at 185 Ridgefield Drive, York, PA 17403. 4. Defendant previously owned and operated the Gold's Gym franchise located at 401 Hartzdale Drive, Camp Hill, PA 17011 ("Gold's Gym"). 5. Plaintiffs were independent contractors pursuant to Independent Contractor Agreements between each Plaintiff and Defendant providing personal training services at Gold's Gym. 6. Plaintiffs' Independent Contractor Agreements had no end date and, therefore, no term; thus, they were at -will Agreements terminable by either party. 7. The Pennsylvania Supreme Court in Cummings v. Kelling Nut Company, 84 A.2d 323, 325 (Pa. 1951), held: The general rule is that when a contract provides that one party shall render services to another, or shall act as an agent, or shall have exclusive sales rights within a certain territory, but does not specify a definite time or prescribe conditions which shall determine the duration of the relation, the contract may be terminated by either party at will: Coffin v. Landis, 46 Pa. 426; Weidman v. United Cigar Stores Company, 223 Pa. 160, 72 A. 377; Jones v. Pittsburgh Mercantile Co., 295 Pa. 219, 145 A. 80; Slonaker v. P.G. Publishing Company, 338 Pa. 292, 13 A.2d 48; Price v. Confair, 366 Pa. 538, 79 A.2d 224; Lucacher v. Kerson, 158 Pa.Super 437, 45 A.2d 245. 8. On or about September 4, 2014, Defendant sold all of the assets of Gold's Gym to a third party ("Purchaser"). 9. The Independent Contractor Agreements were not part of the assets sold to the Purchaser and the Agreements were, therefore, terminated. 10. On December 5, 2014, Defendants' Counsel accepted service of a Writ of Summons filed by Plaintiffs' attorney in this matter. 11. On December 11, 2014, the Cumberland County Prothonotary issued a Rule on Defendants' Praecipe directing Plaintiffs' to file a Complaint in the matter within twenty (20) days after service of the rule. Underlying Facts Supporting Motion for Protective Order 12. On December 5, 2014, Defendants' Counsel also received Plaintiffs' pre - complaint Request For Production of Documents: First Set, a true and correct copy of which is attached hereto as Exhibit "A." 13. The documents requested by Plaintiffs are the following: 1. Independent Contractor agreement between Defendant and Susan J. Hildabrand. 2. Independent Contractor agreement between Defendant and Kevin E. Keefer. 3. The sale, transfer or assignment of any property, rights or interests owned or controlled by the Defendant to any other party. 4. All bank records, or records of any other type ofqinancial institution, evidencing the transfer of funds to or from the Defendant in connection with the sale, transfer or assignment of any property, rights or interests owned or controlled by the Defendant. 5. Copies of all e-mails, letters or other documents between the Defendant and any purchasor [sic], transferee or assignee of any property, rights or interests previously owned or controlled by the Defendant pertaining to the Independent Contractor agreements between Plaintiffs and the Defendant. 6. Any and all documents related to the ownership, transfer or use of the Gold's Franchise formerly operated by Mechanicsburg Fitness, Inc. 14. The Civil Cover Sheet filed with Plaintiffs' Writ of Summons indicates that the nature of their case is "Breach of Contract." 15. Plaintiffs' request for documents under Nos. 3-6, above, have no relation to a cause of action for breach of contract. Request for Protective Order Pursuant to Pa.R.C.P. 4003.8 16. Pennsylvania Rule of Civil Procedure 4003.8(a) states that, "[a] plaintiff may obtain pre -complaint discovery where the information sought is material and necessary to the filing of the complaint and the discovery will not cause unreasonable annoyance, embarrassment, oppression, burden or expense to any person or party." 17. The material sought in Plaintiffs' Request for Production of Documents Nos. 3-6 is not material or necessary to the filing of Plaintiffs' Complaint as it deals with the sale of the Defendants' business to Purchaser and, if produced, the information would in no way support Plaintiffs' claim of breach of contract against Defendant. 18. The material sought in Plaintiffs' Request for Production of Documents Nos. 3-6 will cause unreasonable annoyance, embarrassment, oppression, burden and expense to Defendant, Purchaser, and Gold's Gym Franchising, LLC as the details of the sale of Defendant's assets to Purchaser are confidential and would reveal proprietary business information not relevant to the subject matter of this litigation. 19. Pennsylvania Rule of Civil Procedure 4003.8(b) allows this Honorable Court to issue a protective order barring pre -complaint discovery. 20. Defendant will suffer prejudice unless this Honorable Court grants the relief requested in the within Motion for Protective Order. 21. Plaintiffs will suffer no prejudice if this Honorable Court grants the relief requested herein as the Plaintiffs can later request such discovery if it is shown to be relevant after the filing of their Complaint in this matter. WHEREFORE, Defendant, Mechanicsburg Fitness, Inc., f/d/b/a Gold's Gym, respectfully requests that this Honorable Court grant its Motion for Protective Order Pursuant to Pa.R.C.P. 4003.8 and further award Defendant all such other relief as is proper and just. CERTIFICATION OF CONCURRENCE /NON -CONCURRENCE PURSUANT TO CUMBERLAND COUNTY LOCAL RULE 208.2(d) Pursuant to Cumberland County Local Rule 208.2(d), shortly before filing this Motion, the moving party disclosed the full text of this Motion and the Proposed Order to Plaintiffs' counsel by facsimile. At the time that this Motion was sent for filing, no response on the request for concurrence/non-concurrence was received by Defendant's Counsel. Date: December 31, 2014 Respectfully submitted, SERRATELLI, SCHIFFMAN, & BROWN P.C. u-erf S n J. Schi an, Esquire Carol L. Verish, Esquire Pa. ID Nos. 25488 & 91284 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110-9670 (717)540-9170 VERIFICATION I, Joyce S. Freeman, do hereby state, under penalty of 18 P.S. § 4904 relating to unsworn falsification to authorities, that I am an authorized representative of Defendant Mechanicsburg Fitness, Inc., that I am authorized to give this verification on its behalf, and that the averments set forth in the foregoing are true and correct to the best of my knowledge, information, and belief. By: Mechanicsburg Fitness, Inc. Joyce Free , President CERTIFICATE OF SERVICE I, Carol L. Verish, Esquire, hereby certify that I have served a true and correct copy of the foregoing Motion for Protective Order Pursuant to Pa.R.C.P. 4003.8 by first class, postage prepaid, addressed as follows: Keith DeArmond DeArmond & Associates of York, LLC 18 South George Street Suite 610 York, PA 17401 SERRATELLI, SCHIFFMAN, & BROWN P.C. Dated: December 31, 2014 By S ev- J. Schif an, Esquire Carol L. Verish, Esquire Pa. ID Nos. 25488 & 91284 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110-9670 (717)540-9170 LiNE. oT , .r.. f inti �l'lONJJlir:; 2015 JAN —8 PH 1:16 ���'i.� ? RLANO CCi H Y SUSAN J. HILDABRAND and KEVIIHI�S��LVA,�l1A KEEFER, Plaintiffs v. MECHANICSBURG FITNESS, INC. D/B/A/ GOLD'S GYM, Defendant Count? of eumberItnb IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT 14-6686 CIVIL TERM IN RE: MOTION FOR PROTECTIVE ORDER PURSUANT TO PA.R.C.P. 4003.8 ORDER OF COURT AND NOW, this 6th day of January 2015, upon consideration of Dendant's Motion for Protective Order Pursuant to Pa.R.C.P. 4003.8, a RULE is issued upon Plaintiffs to show cause as to why the requested relief should not be granted. DEFENDANT shall effectuate service of this Order of Court upon Plaintiffs and shall file proof of service. Plaintiffs SHALL include a proposed Order with any response. The Prothonotary is DIRECTED to deliver the file upon the filing of any response to this. Order with the Court. RULE RETURNABLE twenty (20) days from the date of service. THE CQURTTh jtribution List: ✓ men J. Schiffman, Esq. Keith B. DeArmond, Esq. b Es Inas .i/g/ty Thoma A. Placey C.P.J.