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HomeMy WebLinkAbout15-0129 Supreme Court of Pennsylvania Court of Common Pleas For Prothonotary Use Only: Civil Cover Sheet Docket No: CUMBERLAND County 115—f��l�a The information collected on this form is used solely for court administration purposes. This form does not supplement or replace the filing and service ofpleadings or other papers as required by law or rules of court. Commencement of Action: S El Complaint ❑ Writ of Summons ❑ Petition E ❑ Transfer from Another Jurisdiction ❑ Declaration of Taking C Lead Plaintiff's Name: Lead Defendant's Name: T PENNSY SUPPLY, INC. B. C. McALLISTER EXCAVATING AND PAVING INC. I Are money damages requested? ❑Yes ❑ No Dollar Amount Requested: El within arbitration limits O (check one) Im outside arbitration limits N Is this a Class Action Suit? ❑Yes El No Is this an MDJAppeal? ❑ Yes No A Name of Plaintiff/Appellant's Attorney: Donald M. Lewis III ❑ 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 0 Board of Assessment ❑ Motor Vehicle Debt Collection:Other ❑ Board of Elections ❑ Nuisance successor liability Dept.of Transportation ❑ Premises Liability ® Statutory Appeal:Other S ❑ Product Liability(does not include E mass tort) ❑ Employment Dispute: - ❑ Slander/Libel/Defamation Discrimination C ❑ Other: ❑ Employment Dispute:Other E3 Zoning Board T ❑ Other: I ❑ Other: O MASS TORT ❑ Asbestos N ❑ Tobacco ❑ Toxic Tort-DES ❑ Toxic Tort-Implant REAL PROPERTY MISCELLANEOUS Toxic Waste ❑ Other: ❑ Ejectment 0 Common Law/Statutory Arbitration B ❑ Eminent Domain/Condemnation ❑ Declaratory Judgment ® Ground Rent ❑ Mandamus ❑ Landlord/Tenant Dispute ❑ 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: Updated 1/1/2011 J KEEFER WOOD ALLEN&RAHAL,LLP L Donald M.Lewis III,Esquire,PA 58510 417 Walnut Street,4t'Floor P.O.Box 11963 PA Harrisburg,PA 17108-1963 (717)255-8038 diewis@keeferwood.com Attorneys for Plaintiff PENNSY SUPPLY, INC. IN THE COURT OF COMMON PLEAS OF 1001 Paxton Street CUMBERLAND COUNTY, PENNSYLVANIA P. O. Box 3331 Harrisburg, PA 17105-3331, No. 60 G9 Plaintiff Civil Action V. B. C. MCALLISTER EXCAVATING AND PAVING INC. 4900 Carlisle Pike Mechanicsburg, PA 17050 Defendant NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT 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 �s 32 South Bedford Street :7� Carlisle, PA 17013 9 (717) 249-3166 KEEFER WOOD ALLEN&RAHAL,LLP Donald M.Lewis III,Esquire,PA 58510 417 Walnut Street,4`h Floor P.O.Box 11963 Harrisburg,PA 17108-1963 (717)255-8038 dlewis@keeferwood.com Attorneys for Plaintiff PENNSY SUPPLY, INC. IN THE COURT OF COMMON PLEAS OF 1001 Paxton Street CUMBERLAND COUNTY, PENNSYLVANIA P. O. Box 3331 Harrisburg, PA 17105-3331, No. Plaintiff Civil Action V. B. C. MCALLISTER EXCAVATING AND PAVING, INC. 4900 Carlisle Pike Mechanicsburg, PA 17050 Defendant COMPLAINT Plaintiff Pennsy Supply, Inc., by and through its counsel, Keefer Wood Allen& Rahal, LLP, asserts the following complaint against defendant B. C. McAllister Excavating and Paving, Inc., averring as follows: 1. Plaintiff Pennsy Supply, Inc. (hereinafter"Plaintiff'), is a Pennsylvania corporation with a place of business located at 1001 Paxton Street, P. O. Box 3331, Harrisburg, Dauphin County, Pennsylvania 17105-3331. 2. Defendant B. C. McAllister Excavating and Paving Inc. (hereinafter"Defendant") is a Pennsylvania corporation with a mailing address at 4900 Carlisle Pike, Mechanicsburg, - - i Cumberland County, Pennsylvania. Defendant is amenable to service of process in care of its President, Bradley C. McAllister, at 5140 Erbs Bridge Road, Mechanicsburg, Cumberland County, Pennsylvania 17050. 3. Defendant conducts business as a paving and excavating contractor in the construction trade. 4. During November and December 2013, Plaintiff supplied Defendant's predecessor entity, B.C. McAllister Paving Incorporated, with various paving materials and related transportation services at the specific request of Bradley C. McAllister. 5. Plaintiff timely billed B.C. McAllister Paving Incorporated for the materials and services that it delivered through December 23, 2013, with the last of such invoices rendered on December 30, 2013. 6. On January 12, 2014, B.C. McAllister Paving Incorporated accepted delivery from Plaintiff of additional materials, and paid for those materials upon receipt. 7. On March 6, 2014, defendant was registered under the name B. C. McAllister Excavating and Paving Inc. with the Corporations Bureau of the Pennsylvania Department of State as a Pennsylvania non stock corporation. 8. On March 10, 2014, after B.C. McAllister Paving Incorporated failed to pay the account balance that was still due and payable for the materials and services delivered through December 23, 2013, Plaintiff brought a civil action, captioned in this Court as Pennsy Supply, Inc. v. B.C. McAllister Paving Incorporated,No. 2014-1418, seeking $72,182.16 in damages. 9. On September 15, 2014, in case No. 2014-1418, the Court entered a Judgment in favor of Plaintiff and against B.C. McAllister Paving Incorporated in the amount of$72,182.16, which to date remains unpaid and unsatisfied. -2- 10. According to an Out of Existence/Withdrawal Affidavit that was not filed with the Pennsylvania Department of Revenue until on or about August 15, 2014, B. C. McAllister Paving Incorporated ceased to transact business, and all assets were sold, assigned or distributed, on or about December 30, 2013; and since that time, the corporation has not, inter alia, performed any sales activity and does not intend to transact further business in the Commonwealth. A true and correct copy of this document is attached hereto as Exhibit A. 11. Upon information and belief, after reasonable investigation, Plaintiff alleges that tangible assets and intangible assets, such as intellectual property and customer good will, of B. C. McAllister Paving Incorporated were transferred to Defendant on or about March 6, 2014, for inadequate consideration. 12. Prior to its purported dissolution and the transfer of its assets to Defendant, B. C. McAllister Paving Incorporated failed to make any provisions for payment of its creditors, including Plaintiff. 13. Bradley C. McAllister, the sole officer, shareholder and manager of Defendant, is also the sole officer, shareholder and manager of B. C. McAllister Paving Incorporated. 14. The sole non-officer employee of B. C. McAllister Paving Incorporated became the sole non-officer employee of Defendant. 15. The same equipment formerly used in the business of B. C. McAllister Paving Incorporated, i.e., pavers, rollers, a skid loader, a backhoe, trailers and dump trucks, is now used exclusively in Defendant's business. 16. Defendant continues to use the same website that B. C. McAllister Paving Incorporated formerly used at www.bcmcallisteMaving.com to advertise and market Defendant's services. -3- 17. Defendant's President, Bradley C. McAllister, has owned the registered fictitious name, B.C. McAllister Paving, since 2000 and continues to use that fictitious name in Defendant's business, including, without limitation, displaying the name on trucks and equipment. 18. Defendant uses the same telephone contact number for conducting business that B. C. McAllister Paving Incorporated formerly used. 19. Defendant is a mere continuation of the same business that B. C. McAllister Paving Incorporated conducted before it, for the reasons stated in the foregoing paragraphs 13 through 18 and because Defendant continues to offer the same types of business services that its predecessor performed, including excavating services, water and sewer line repair and installation, repair and resurfacing of residential driveways, and storm water management. 20. In the alternative, Plaintiff avers that Defendant corporation is the product of a consolidation or de facto merger with B. C. McAllister Paving Incorporated, in that: a. There is continuity of management,personnel, physical location, assets, and general business operations; b. There is a continuity of shareholders in that the sole shareholder of Defendant corporation is the same individual as the sole shareholder of its predecessor; C. The predecessor entity has ceased its ordinary business operations, liquidated, and dissolved; and d. Upon information and belief, Defendant corporation has assumed those obligations of its predecessor ordinarily necessary for the uninterrupted continuation of normal business operations of the predecessor corporation, including, without limitation, equipment leases. -4- 21. In the alternative, Plaintiff avers that the purported dissolution of B. C. McAllister Paving Incorporated and transfer of assets to Defendant was a transaction that was fraudulently entered into to escape liability for the debts of B. C. McAllister Paving Incorporated, including, without limitation,the balance of$72,182.16 owed to Plaintiff. 22. Defendant should, therefore, be held liable for, and be ordered to pay Plaintiff, the full amount of its judgment against its predecessor in the amount of$72,182.16 plus prejudgment interest at the legal rate of six percent(6%). WHEREFORE,judgment is demanded of Defendant in the amount of$72,182.16,plus prejudgment interest at the legal rate of six percent(6%), for a total judgment amount that exceeds the amount requiring referral to arbitration; plus such other and further relief as the Court deems fair and just. Respectfully submitted, KEEFER WOOD ALLEN& RAHAL, LLP Dated: January 6, 2015 By nald M. Lewis III, PA 58510 417 Walnut Street, 4t'Floor P.O. Box 11963 Harrisburg, PA 17108-1963 (717) 255-8038 dlewis@keeferwood.com Attorneys for Plaintiff -5- VERIFICATION The undersigned, Bradley A. Vores, hereby verifies and states that: 1. He is Accounts Receivable Manager of Pennsy Supply, Inc., plaintiff herein; 2. He is authorized to make this verification on plaintiff's behalf, 3. The facts set forth in the foregoing complaint are true and correct to the best of his knowledge, information, and belief; and 4. He is aware that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities. B ley A. ores Dated: December30, 2014 1 I REV-298 CN(01.171 i i (} 11 pennsyLvania DEPARTMENT USE ONLY i)FPARTMFNT OF REVENUE BUREAU OF COMPUANCE OUT OF EXISTENCE/WITHDRAWAL OUT OF EXISTENCE/MERGER SECTION AFFIDAVIT PO BOX 2B0947 HARRISBURG PA 17128.0947 Revenue ID 74-783-6052 Trs 800-447-3020(Services for taxpayers with 6pecla(hearing and/or speaking needs only) MZU9 PRINT OR TYPE INFORMATION THIS FORM MUST BE PROPERLY SIGNED AND NOTARIZED NOTE: • If filing a final RCT-101 corporate report for 2002 and forward,complete the"corporate status change'section In the RCT-101 In lieu of filing this form. a The reverse aide of this form must be completed,Section A pertains to a PA corporation or a foreign corporation that i operated wholly within Pennsylvania.Section B pertains to all other foreign corporations. • If you wish to be notified by email that the corporation is out of business,please provide emall address on reverse side, Date of Incorporation or y Certificate of Authority •-� ,t:J1 Account ID/Revenue ID State of incorporation _ J" Entity Entity ID(EIN) 5 '_f 2 7Y 7e Name of Corporation/Taxpayer 13C l���•1�1 t..l S i c:k NIl�i �,`6 ..1.)� I, the "Affiant," was connected with the above corporation and have knowledge of its affairs. Said corporation ceased to transact business in Pennsylvania on or abouts 1r� 3 el. 2(11 3 ,� Day .�� , and all assets were sold,assigned or distributed on 1 'av 3 ,and since that time,the corporation has not owned Ri+ any property located In Pennsylvania, nor maintained an office therein,nor has performed any sales activity and does not intend to transact further business in the commonwealth. *If corporation never transacted business or held assets in Pennsylvania, please use the words"NEVER TRANSACTED BUSINESS"in place of a cessation date. I The filing of this affidavit does not affect the status of the Certificate of Incorporation/Authority of this corporation but does permit the Department of State to relinquish the use of the present name of the corporation to another corporation. This affidavit Is.-not to.be filed by a PA corporation utilizing Its PA charter to conduct business in another state,out-of-state corpo- rations soliciting business in Pennsylvania are subject to tax and should flie this document only upon ceasing activity In Pennsylvania. I Sworn to and subscribed before me this A j (g4l day of hi tux _,year O (Signature of Atfiant) j (Notary Public,District Justice or Authorized Agent, I Department or Revenue) TITLE �1 My commission expires -FU uA!!Y 01(e ,year aDJ w,i 1 i�r.. �.�;i;t,(�(` (� i 16 -il) Present Address of AHlent) ! Telephone Number r 1 (Notary signature a Beal) cOpNOKWEALTH OF.,J*ENKMvkNIA Nourtat'Seal Gros v.Shvy, Notary Public swstara Tats., Dauphin county { PLEASE PRINT OR TYPE INFORMATION My C9pmis$1cn Expires ftb. 26, 20121 WMu0.ri(.�srtyw:�.ssoua Icti aI no;,uu NO FILING FEE i j EXHIBIT A £/Z d 090899ZL1,L «1bbb19L9L 831SI11V3Wo9 1Q 01 91 80 b1QZ i