Loading...
HomeMy WebLinkAbout05-3242DAVIS PULMONARY ASSOCIATES, P.C. and STEPHEN J. DAVIS, M.D., Plaintiffs VS. MICHELLE A. HOLTZAPPLE and GARY HOLTZAPPLE, Defendants TO THE PROTHONOTARY: : IN THE COURT OF COMMON PLEAS : CUMBERLAND CO., PENNSYLVANIA NO. 2005- 3 2 c{ .2 c-.r J a- w Please issue a Writ of Summons in favor of the above two-named Plaintiffs against the above two-named Defendants. DATE: June 24, 2005 Hubert X. ?lroy, Esquire Broujo Gilroy hJ u+ hJ J (P T ? ) 0 .? t 'l. -n "i3 C?, DAVIS PULMONARY ASSOCIATES, P.C. and STEPHEN J. DAVIS, M.D., Plaintiffs VS. MICHELLE A. HOLTZAPPLE and GARY HOLTZAPPLE, 193 Alantia Lane, Etters, PA 17319 Defendants : NO. zoos- 39 U.? IN THE COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA PRAECIPE TO THE PROTHONOTARY: Please issue a Writ of Summons in favor of the above two-named Plaintiffs against the above two-named Defendants. DATE: June 24, 2005 Hubert X. Gilr , Esquire Broujos & roy,P.C. 4 North H Hover Street Carlisle, PA 17013 (717) 243-4574 ID #29943 Commonwealth of Pennsylvania County of Cumberland WRIT OF SUMMONS DAVIS PULMONARY ASSOCIATES, P C AND STEPHEN J. DAVIS, M D Court of Common Pleas Plaintiff Vs. No. 05-3242 In CivilAction-Law MICHELLE A. HOLTZAPPLE AND GARY HOLTZAPPLE 193 ALANTIA LANE ETTERS, PA 17319 Defendant To MICHELLE A. HOLTZAPPLE AND GARY HOLTZAPPLE,193 ALANTIA LANE, ETTERS, PA 17319 You are hereby notified that DAVIS PULMONARY ASSOCIATES, P C AND STEPHEN J DAVIS, M D the Plaintiff has / have commenced an action in Civil Action-Law against you which you are required to defend or a default judgment may be entered against you. (SEAL) Date June 27, 2005 By CURTIS R. LONG Prothonotary Attorney: Name: HUBERT X. GILROY, ESQUIRE Address: BROUJOS & GILROY, P C 4 NORTH HANOVER STREET CARLISLE, PA 17013 Attorney for: Plaintiff Telephone: (717) 243-4574 Supreme Court ID No. 29943 DAVIS PULMONARY ASSOCIATES, PC : IN THE COURT OF COMMON PLEAS and STEPHEN J. DAVIS, M.D., : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 05-3242 CIVIL MICHELLE HOLTZAPPLE and GARY HOLTZAPPLE, Defendants PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance as the attorney for the defendants, Michelle Holtzapple and Gary Holtzapple, in the above captioned case. Respectfully submitted, R. Mark Thomas, Esquire ID# 41301 101 S. Market Street Mechanicsburg, PA 17055 (717) 796-2100 cc: Hubert X. Gilroy, Esq. N (} p ^.1 ? J'? } C ( T ^f1 _- ? c _: ri5 ?_w . tU 4 c.a ? , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAVIS PULMONARY ASSOCIATES, P.C. AND STEPHEN J. DAVIS, M.D., Plaintiffs V. MICHELLE A. HOLTZAPPLE AND GARY HOLTZAPPLE, Defendants DOCKET NO. 05 - 3242 CIVIL ACTION - LAW & EQUITY NOTICE TO DEFEND 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 OR CANNOT AFFORD ONE, GO TO THE TELEPHONE OR THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 0 - C; f !o Date Hubert X. Gilroy, Esqu e Supreme Court I.D. . 29943 Broujos & Gilroy, C. 4 North Hanover Street Carlisle, PA 17013 (717) 243-4574 (Attorney for Plaintiffs) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAVIS PULMONARY ASSOCIATES, P.C. AND STEPHEN J. DAVIS, M.D., DOCKET NO. 05 - 3242 Plaintiffs V. MICHELLE A. HOLTZAPPLE AND GARY HOLTZAPPLE, Defendants COMPLAINT CIVIL ACTION - LAW & EQUITY Plaintiff is Davis Pulmonary Associates, P.C., a professional corporation duly organized and existing under the laws of the Commonwealth of Pennsylvania in the profession of operating a medical practice having a principal place of business at 1863 Center Street, Camp Hill, Cumberland County, PA 17011 (hereinafter, "Pulmonary Associates"). 2. Plaintiff is Stephen J. Davis, M.D., an adult individual having a business address of Davis Pulmonary Associates, P.C., 863 Center Street, Camp Hill, Cumberland County, PA 17011 (hereinafter, "Davis"). 3. Defendant is Michelle A. Holtzapple, an adult individual having a residence address of 193 Atlanthia Lane, Etters, York County, PA 17319. 4. Defendant is Gary Holtzapple, an adult individual having a residence address of 193 Atlanthia Lane, Etters, York County, PA 17319. 5. Michelle A. Holtzapple and Gary Holtzapple (collectively herein, "Holtzapples") are husband and wife and have been so for all times pertinent to this cause of action. 6. Davis is the principal physician, shareholder, director and officer of Pulmonary Associates. 2 7. For all times pertinent to this cause of action, Pulmonary Associates held a checking account bearing account number 1509440 (hereinafter, the "Account") with Pennsylvania State Bank (hereinafter, the Bank") 8. From on or about February 2, 1993 until March 18, 2005, defendant Michelle A. Holtzapple (hereinafter, "Michelle Holtzapple"), was employed by Pulmonary Associates as bookkeeper and office manager. 9. As bookkeeper and office manager, Michelle Holtzapple's duties included, inter atia, maintaining the financial books and records of Pulmonary Associates, managing receivables and payables for Pulmonary Associates, and drafting checks for the payment of Pulmonary Associates expenses. 10. Michelle Holtzapple was never authorized to use Plaintiffs' funds for Defendants' own personal use. 11. For a period of time beginning on or about February 09, 1999 until December 5, 2002, Michelle Holtzapple was authorized to sign said checks for Pulmonary Associates, as drawer/maker, which were drawn against the Account. 12. On December 5, 2002, Davis informed Michelle Holtzapple that no one other than Davis would be thereafter authorized to sign checks, as drawer/maker, which were drawn against the Account. 13. Unbeknownst to Davis and without authority, privilege or legal justification to do so, after December 5, 2002 and after being notified by Davis not to do so, Michelle Holtzapple continued to sign checks, as drawer/maker, against the Account. 14. Without authority, privilege or legal justification to do so, both before December 5, 2002 and after, until her employment was terminated by Davis, Michelle Holtzapple drew 3 checks against the Account for the Holtzapples' personal use, including checks for payment of Holtzapples' personal expenses and checks improperly drawn to Michelle Holtzapple, which she endorsed and accepted the proceeds therefrom. 15. Plaintiffs believe and therefore aver that Michelle Holtzapple transferred and converted Plaintiffs' property to Michelle Holtzapple, Gary Holtzapple, and Michelle Hotlzapplae and Gary Holtzapple, jointly, both outright, by paying individual and marital debts and by otherwise transferring Plaintiffs' property, or the proceeds therefrom, into individual and/or marital assets. 16. Michelle Holtzapple improperly drew checks in the total amount of $ 315,778.79. A list of checks improperly and illegally drawn by Michelle Holtzapple are attached hereto, marked as Exhibit "A", and are incorporated herein by reference as though textually set forth at length. 17. Michelle Holtzapple concealed her said actions from Plaintiffs, even to the point of denying knowledge or culpability when questioned about the possibility of missing funds, with the intent of defrauding Plaintiffs of Plaintiffs' property. 18. On or about March 17, 2005, Davis learned that Michelle Holtzapple was continuing to sign checks, as drawer/maker, against the Account. 19. Davis stopped payment on check number 4434, which was signed by Michelle Holtzapple as drawer/maker, dated March 15, 2005 and drawn against the Account in the amount of $4,350.57. 20. All other checks signed by Michelle Holtzapple as drawer/maker and illegally drawn against the Account as noted in Paragraph 14, supra, were honored by the Bank and paid 4 to Michelle Holtzapple, and Michelle Holtzapple accepted the proceeds, or benefits of the proceeds, therefrom. 21. The Bank repaid Davis the sum of $6,000.00 for said check number 4409. 22. Michelle Holztapple's aforesaid actions were fraudulent, outrageous and committed in bad faith, with absolutely no regard for Plaintiffs' rights and financial welfare and with no legal justification or defense whatsoever. 23. Michelle Holtzapple's actions have caused Plaintiffs loss of use of said funds, and interest thereon. 24. In addition to the stolen funds, as a direct, proximate and foreseeable result of Michelle Holtzapple's said actions, Plaintiffs have incurred damages totaling the sum of $17,996.02, a description of which is attached hereto, marked as Exhibit "B", and which is incorporated herein by reference. 25. In addition to the aforementioned damages, Michelle Holtzapple's actions have caused Plaintiffs to incur, and continue to incur, significant attorney's fees and costs in seeking redress through the filing and prosecution of the instant action. 26. As a direct and proximate result of Michelle Holtzapple's fraudulent, illegal and outrageous conduct, Davis suffered severe emotional distress, which exhibited itself physically by inability to sleep, depression, loss of concentration, weight loss, poor appetite, and other severe distress. 27. On October 18, 2005, Michelle Holtzapple pled guilty for her aforesaid illegal actions to the criminal charges of Theft by Deception, grade of a Felony 3, docketed with this Honorable Court, Criminal Division, at 2005-1542. 28. Defendants have reimbursed Plaintiffs the total sum of $154,000.00. 5 29. Of the total amount of Plaintiffs' funds misappropriated by Michelle Holtzapple, $161,778.79, plus consequential damages of $17,996.02, remains to be reimbursed to Plaintiffs, plus interest Plaintiff would have earned on the funds. 30. Because of the fraudulent and outrageous actions of Michelle Holtzapple, Plaintiffs are entitled to recover their attorney's fees from Michelle Holtzapple. 31. Because of the fraudulent and outrageous actions of Michelle Holtzapple, Plaintiffs are entitled to recover punitive damages from Michelle Holtzapple. 32. The total amount sought by Plaintiffs exceeds $25,000.00, the amount requiring compulsory arbitration in Cumberland County. COUNT I-FRAUD Davis Pulmonary Associates P.C. and Stephen J Davis M.D. v. Michelle A. Holtzapple 33. Paragraphs 1 through 32, above, are incorporated herein by reference as though textually set forth at length. 34. Michelle Holtzapple is liable to Plaintiffs for fraud, as she illegally stole funds from Plaintiffs and concealed her actions with hopes of her actions not being detected by Plaintiffs in order to deprive Plaintiffs of Plaintiffs' property. WHEREFORE, Plaintiffs respectfully request your Honorable Court direct judgment be entered in favor of Plaintiffs and against Michelle Holtzapple in the amount of $161,778.79, plus consequential damages of $17,996.02, compensation for Davis's emotional distress as proven and allowed by law, pre and post judgment interest as allowed by law, costs of suit, attorneys fees incurred by Plaintiffs in prosecuting this action, punitive damages as allowed by law and deemed just by the Court, and any other relief deemed just by the Court. 6 COUNT II - CONVERSION - COMMON LAW Davis Pulmonary Associates P.C. and Stephen J. Davis M.D. v. Michelle A. Holtzapple 35. Paragraphs 1 through 34, above, are incorporated herein by reference as though textually set forth at length. 36. Michelle Holtzapple converted Plaintiffs' property for her own use by illegally drawing said checks against the Account and accepting the proceeds or benefits thereof, which proceeds were the rightful property of Plaintiffs. WHEREFORE, Plaintiffs respectfully request your Honorable Court direct judgment be entered in favor of Plaintiffs and against Michelle Holtzapple in the amount of $161,778.79, plus consequential damages of $17,996.02, compensation for Davis's emotional distress as proven and allowed by law, pre and post judgment interest as allowed by law, costs of suit, attorneys fees incurred by Plaintiffs in prosecuting this action, punitive damages as allowed by law and deemed just by the Court, and any other relief deemed just by the Court. COUNT III - BREACH OF FIDUCIARY DUTY Davis Pulmonary Associates P.C. and Stephen J. Davis M.D. v. Michelle A. Holtzapple 37. Paragraphs 1 through 36, above, are incorporated herein by reference as though textually set forth at length. 38. Michelle Holtzapple was Plaintiffs' fiduciary, as employee, bookkeeper and business manager for Plaintiffs, as to the Plaintiffs' property, including but not limited to the Account and the funds held therein. 39. Michelle Holtzapple owed a fiduciary duty to Plaintiffs to properly care for and protect Plaintiffs' funds, drawing checks and disbursing Plaintiffs' funds from the Account only for the legitimate expenses owed by Plaintiffs and not for her own or Defendants' use. 7 40. Michelle Holtzapple breached her fiduciary duty owed to Plaintiffs by improperly drawing said checks and accepting the proceeds or benefits thereof for her own and Defendants' use. 41. As a direct and proximate result of the Michelle Holtzapple's breach of her fiduciary duty owed to Plaintiffs, Plaintiffs have incurred uncompensated damages in the nature of the loss of a significant amount of Plaintiffs' funds, in the amount of $161,778.79, plus consequential damages of $17,996.02, as well as interest Plaintiffs would have earned on the funds. 42. Michelle Holtzapple is liable to Plaintiffs for damages caused by Michelle Holtzapple's breach of the fiduciary duty she owed to Plaintiffs. WHEREFORE, Plaintiffs respectfully request your Honorable Court direct judgment be entered in favor of Plaintiffs and against Michelle Holtzapple in the amount of $161,778.79, plus consequential damages of $17,996.02, compensation for Davis's emotional distress as proven and allowed by law, pre and post judgment interest as allowed by law, costs of suit, attorneys fees incurred by Plaintiffs in prosecuting this action, punitive damages as allowed by law and deemed just by the Court, and any other relief deemed just by the Court. COUNT IV - BREACH OF EMPLOYMENT CONTRACT Davis Pulmonary Associates, P.C. and Stephen J. Davis M.D. v Michelle A Holtzaoale 43. Paragraphs 1 through 42, above, are incorporated herein by reference as though textually set forth at length. 44. Michelle Holtzapple was a party to an oral but enforceable employment contract with Pulmonary Associates which included that Michelle Holtzapple would properly perform her duties as bookkeeper and office manager for Pulmonary Associates and, in return, Pulmonary Associates would compensate Michelle Holtzapple for her time and efforts as 8 employee for Pulmonary Associates, in an amount agreed to from time to time by the parties. 45. As part of her employment contract, Michelle Holtzapple had the duty and obligation to properly care for and protect Plaintiffs' funds, drawing checks and disbursing Plaintiffs' funds from the Account only for the legitimate expenses owed by Plaintiffs and not for her own or Defendants' use. 46. Michelle Holtzapple breached her employment contract with Plaintiffs by improperly drawing said checks and accepting the proceeds or benefits thereof for her own and Defendants' use. 47. As a direct and proximate result of the Michelle Holtzapple's breach of her employment contract with Plaintiffs, Plaintiffs have incurred uncompensated damages in the nature of the loss of a significant amount of Plaintiffs' funds, in the amount of $161,778.79, plus consequential damages of $17,996.02, as well as interest Plaintiffs would have earned on the funds. 48. Michelle Holtzapple is liable to Plaintiffs for her breach of the employment contract she had with Plaintiffs. WHEREFORE, Plaintiffs respectfully request your Honorable Court direct judgment be entered in favor of Plaintiffs and against Michelle Holtzapple in the amount of $161,778.79, plus consequential damages of $17,996.02, compensation for Davis's emotional distress as proven and allowed by law, pre and post judgment interest as allowed by law, costs of suit, attorneys fees incurred by Plaintiffs in prosecuting this action, punitive damages as allowed by law and deemed just by the Court, and any other relief deemed just by the Court. 9 COUNT V - STATUTORY ACTION FOR FRAUDULENT TRANSFER PURSUANT TO THE PA UNIFORM FRAUDULENT TRANSFER ACT (12 Pa.C.S. § 5101 et seq.) Davis Pulmonary Associates, P.C. and Stephen J. Davis, M.D. v. Michelle A. Holtzapple and Garv Holtzapple 49. Paragraphs 1 through 48, above, are incorporated herein by reference as though textually set forth at length. 50. Plaintiffs believe and therefore aver that Michelle Holztapple, after incurring a debt to Plaintiffs for conversion of Plaintiffs property, as stated above, transferred some or all of Plaintiffs' property or the proceeds therefrom, as stated, to Gary Holtzapple, outright, or property Michelle Holtzapple held or holds jointly with Gary Holtzapple, including but not limited to real estate jointly owned by Defendants. 51. As defined by 12 Pa.C.S. § 5101, Plaintiffs are creditors of Michelle Holtzapple, and Michelle Holtzapple is a debtor to Plaintiffs. 52. Plaintiffs believe and therefore aver that Michelle Holtzapple transferred Plaintiffs' property to Gary Holtzapple and/or to Michelle Holzapple and Gary Holtzapple, jointly, with the actual intent to hinder, delay and/or defraud Plaintiffs by, inter alia, with the intent of concealing Plaintiffs' assets and/or with the intent of placing the proceeds of Plaintiffs' assets out of the reach of Plaintiffs. 53. Plaintiffs believe and therefore aver that Michelle Holtzapple transferred Plaintiffs property without receiving a reasonably equivalent value in exchange for the transfer and: i) The debtor was engaged or was about to engage in a business or a transaction for which the debtor's remaining assets were unreasonably small in relation to the business or transaction; or 10 ii) The debtor intended to incur, or believed or reasonably should have believed that the debtor would incur, debts beyond her ability to pay as they became due. 54. Plaintiffs believe and therefore aver that the aforesaid transfer of assets was to an insider; that the debtor retained possession or control of the property transferred after the transfer; the transfer or obligation was concealed; before some or all of the transfer(s) was (were) made or obligation(s) was (were) incurred, the debtor had been sued or threatened with suit; the transfer was of substantially all of the debtor's assets; the debtor removed or concealed assets; the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation incurred; and/or the transfer occurred shortly after a substantial debt was incurred. 55. Plaintiffs believe and therefore aver that said transfers arose before said transfers were made and Michelle Holtzapple made said transfers without receiving a reasonably equivalent value in exchange for said transfers and Michelle Holtzapple was insolvent at the time or she became insolvent as a result of the transfer or obligation. 56. Under 12 Pa.C.S. § 5107, Plaintiffs are entitled to relief against Michelle Holtzapple and Gary Holtzapple, jointly and severally. WHEREFORE, Plaintiffs respectfully request your Honorable Court direct judgment be entered in favor of Plaintiffs and against Michelle Holtzapple and Gary Holtzapple, both jointly and severally, in the amount of $161,778.79, plus consequential damages of $17,996.02, compensation for Davis's emotional distress as proven and allowed by law, pre and post judgment interest as allowed by law, costs of suit, attorneys fees incurred by Plaintiffs in prosecuting this action, punitive damages as allowed by law and deemed just by the Court, and 11 any other relief deemed just by the Court. Further, pursuant to 12 Pa.C.S. § 5107, Plaintiffs respectfully request your Honorable Court order relief in the form of. avoidance of the transfer or obligation; attachment or other provisional remedy against the asset transferred or other property of the transferee (Gary Holtzapple and/or Michelle Holtzapple and Gary Holtzapple, jointly); an injunction against further disposition by debtor and/or transferee (Gary Holtzapple and/or Michelle Holtzapple and Gary Holtzapple, jointly); appointment of a receiver to take charge of the transferred assets or of other property of the transferee (Gary Holtzapple and/or Michelle Holtzapple and Gary Holtzapple, jointly); and award Plaintiffs any other relief the Court deems the circumstances requires. COUNT VI - BREACH OF IMPLIED CONTRACT Davis Pulmonary Associates P.C. and Stephen J Davis M.D. v. Michelle A. Holtzapple (in the alternative) 57. Paragraphs 1 through 56, above, are incorporated herein by reference as though textually set forth at length. 58. Every contract imposes upon the parties to the contract an implied duty of good faith and fair dealing, and Michelle Holtzapple likewise was imposed with this duty in her employment contract with Plaintiffs. 59. Michelle Holtzapple breached her duty of good faith and fair dealing to Plaintiffs by her said actions. 60. As a direct result of the Michelle Holtzapple's breach of her duty of good faith and fair dealing, Plaintiffs have incurred uncompensated damages in the nature of the loss of a significant amount of Pulmonary Associates' funds, in the amount of $161,778.79, plus consequential damages of $17,996.02, as well as interest on the funds. 12 WHEREFORE, Plaintiffs respectfully request your Honorable Court direct judgment be entered in favor of Plaintiffs and against Michelle Holtzapple in the amount of $161,778.79, plus consequential damages of $17,996.02, compensation for Davis's emotional distress as proven and allowed by law, pre and post judgment interest as allowed by law, costs of suit, attorneys fees incurred by Plaintiffs in prosecuting this action, punitive damages as allowed by law and deemed just by the Court, and any other relief deemed just by the Court. COUNT VII - CONSTRUCTIVE TRUST Davis Pulmonary Associates, P.C. and Stephen J. Davis M.D. v. Michelle A Holtzapple (in the alternative) 61. Paragraphs 1 through 60, above, are incorporated herein by reference as though textually set forth at length. 62. In the event that it is judicially determined that Plaintiffs have no cognizable or actionable cause of action as averred above, Plaintiffs will have no full and adequate remedy at law. 63. Michelle Holtzapple holds Plaintiffs' said unreimbursed funds in a constructive trust for Plaintiffs' benefit. 64. As constructive trustee, Michelle Holtzapple is required to repay Plaintiffs' funds to Plaintiffs upon demand. 65. Plaintiffs demanded repayment of all of Plaintiffs said funds, however, Michelle Holtzapple has failed to return all of Plaintiffs' property to Plaintiffs, in the nature of the unreimbursed funds in the amount of $161,778.79, plus consequential damages of $17,996.02. 66. Plaintiffs are entitled to a decree awarding Plaintiffs return of their said property. 67. Plaintiffs come to your Honorable and Equitable Court with clean hands. 13 WHEREFORE, Plaintiffs respectfully request your Equitable Court direct judgment be entered in favor of Plaintiffs and against Defendant in the amount of $161,778.79, plus consequential damages of $17,996.02, plus pre and post judgment interest as allowed by law, costs of suit, and any other relief deemed equitable by the Court. COUNT VIII - UNJUST ENRICHMENT Davis Pulmonary Associates P.C. and Stephen J Davis M.D. v. Michelle A. Holtzapple (in the alternative) 68. Paragraphs 1 through 67, above, are incorporated herein by reference as though textually set forth at length. 69. In the event that it is judicially determined that Plaintiffs have no cognizable or actionable cause of action as averred above, Plaintiffs will have no full and adequate remedy at law. 70. If Michelle Holtzapple is allowed to retain Plaintiffs' said funds, Michelle Holtzapple would be unjustly enriched in the amount of $161,778.79, plus consequential damages of $17,996.02, plus interest, as Michelle Holtzapple has no right to retain Plaintiffs' property. 71. Plaintiffs are entitled to a decree awarding Plaintiffs return of their said property. 72. Plaintiffs come to your Honorable and Equitable Court with clean hands. WHEREFORE, Plaintiffs respectfully request your Equitable Court direct judgment be entered in favor of Plaintiffs and against Defendant in the amount of $161,778.79, plus consequential damages of $17,996.02, plus pre and post judgment interest as allowed by law, costs of suit, and any other relief deemed equitable by the Court. 14 COUNT IX-CONSTRUCTIVE TRUST Davis Pulmonary Associates P.C. and Stephen J. Davis, M.D. v. Gary Holtzapple (in the alternative) 73. Paragraphs 1 through 72, above, are incorporated herein by reference as though textually set forth at length. 74. If it is judicially determined that Plaintiff has no cognizable claim against Gary Holtzapple pursuant to 12 Pa.C.S. § 5101 et seq. (as averred in Count V, above) upon present information and belief, Plaintiffs will have no full and adequate remedy at law against Gary Holtzapple. 75. Plaintiffs believe and therefore aver that the proceeds from Michelle Holtzapple's illegal actions, as aforesaid, or the benefits derived therefrom, have or are being enjoyed by the Holtzapples, or otherwise have become part of the Holtzapples' marital estate. 76. The Holtzapples have no right to said illegally obtained funds, nor a right to enjoy the benefits therefrom, nor a right to retain the illegally obtained assets comprising part of the Holtzapple marital estate and which flow from Michelle Holtzapple's said legal actions. 77. The Holtzapples hold Plaintiffs' said unreimbursed funds in a constructive trust for Plaintiffs' benefit. 78. As constructive trustees, the Holtzapples are required to repay Plaintiffs' funds to Plaintiffs upon demand. 79. Plaintiffs demand repayment of all of Plaintiffs said funds, however, the Holtzapples have failed to return all of Plaintiffs property to Plaintiffs, in the nature of unreimbursed funds in the amount of $161,778.79, plus consequential damages of $17,996.02. 15 80. Plaintiffs are entitled to a decree awarding Plaintiffs return of their said property, as Gary Holtzapple has no right to retain any of Plaintiffs' property or the proceeds or benefits therefrom. 81. Plaintiffs come to your Honorable and Equitable Court with clean hands. WHEREFORE, Plaintiffs respectfully request your Equitable Court direct judgment be entered in favor of Plaintiffs and against Gary Holtzapple, both jointly with Michelle Holtzapple, as well as severally, in the amount of $161,778.79, plus consequential damages of $17,996.02, plus pre and post judgment interest as allowed by law, costs of suit, and any other relief deemed equitable by the Court. COUNT X - UNJUST ENRICHMENT Davis Pulmonary Associates P.C. and Stephen J Davis M.D. v. Gary Holtzapple (in the alternative) 82. Paragraphs 1 through 81, above, are incorporated herein by reference as though textually set forth at length. 83. If Gary Holtzapple is allowed to retain Plaintiffs' said funds, Michelle Holtzapple would be unjustly enriched in the amount of $161,778.79, plus consequential damages of $17,996.02, plus interest, as Gary Holtzapple has no right to retain any of Plaintiffs' property or the proceeds or benefits therefrom. 84. Plaintiffs come to your Honorable and Equitable Court with clean hands. WHEREFORE, Plaintiffs respectfully request your Equitable Court direct judgment be entered in favor of Plaintiffs and against Gary Holtzapple, both jointly with Michelle Holtzapple, as well as severally, in the amount of $161,778.79, plus consequential damages of $17,996.02, plus pre and post judgment interest as allowed by law, costs of suit, and any other relief deemed equitable by the Court. 16 Respectfully Submitted, BROUJOS & GILROY, P.C. Date GV' By: Hubert X. i Supreme Court I.D. o. 29943 4 North Hanover S eet Carlisle, PA 17013 (717) 243-4574 (Attorney for Plaintiffs) 17 YEAR 2000 DATE CHECK NUMBER AMOUNT PAYABLE TO PAID TO IN REGISTER 01/18/00 1360 2828.51 MICHELLE MICHELLE 03/08!00 1318 600.00 MICHELLE MICHELLE 03/29/00 1473 3,750.00 CAPITAL 04105/00 1482 5,900A0 UNIVERSAL 04/25/00 1524 5,39529 MBNA 05/10/00 1546 2,312.72 HRS 05/10/00 1556 5,799,09 UNIVERSAL 05114100 I562 2,923.61 DISCOVER 06/13/00 1606 6,280.56 SUPPLIES DISCOVER 06/30/00 1635 2,500.00 DISCOVER 07/01/00 1636 3,245.58 HRS 07/19/00 1665 1,100.00 CASHIiC PA BS MICHEL LE 08/03/00 1592 1,200.00 P S S CITIBANK 09/01/00 1747 1,500.00 EP..IE CITIBANK 09/25/00 1775 1,350,00 PSS MICHELLE 09/25/00 1776 2,000.00 HENRY SCHEIN CITIBANK 10,102/00 1826 3,981.23 PSS CITIBANK 11/15/00 1847 1,500.00 HENRYSCHEIN MICHELLE 12/07/00 1894 2,179,71 PSS CITIBANK 12/13/00 1937 3,000,00 HENRY SCHEIN DISCOVER TOTAL $59346.35 60:E0d E476 E9L LIL-al A2IHH0;4gAd SIAVC 1.6.£[' SO-LZ-ZT YEAR 2001 DATE CHECK NUMBER AMOUNT 01!16/01 1964 1143.94 01/12/01 1963 3000.00 02120/01 2003 4000.00 0216/01 2004 1200.00 03?07/01 2057 1457.50 03113101 2062 6000.00 03/23/01 2090 18242 04/09/01 2111 487.73 04/10/01 2113 4000.00 05107101 2169 5000.00 06,'27/01 2282 1825,00 06127/01 2258 6000.00 'W06/01 2226 4229.52 06/01/01 2204 1800.00 07110/01 2290 3500.00 07/12,01 2284 2000.00 07/27.!01 2314 1434.00 08/20/01 2355 6000.00 08/14101 2354 500.00 08/28/01 2368 1293.01 09/17/01 2395 1338.89 10/17/01 2442 2000.00 101171'01 2443 996.60 11113;01 2498 200.94 11/16/01 2497 3500.00 12/12/•'.11 2555 363.14 12/17101 2554 4100.00 TOTAL 67,552.69 PAID TO DISCOVER CITIBANK DISCOVER CITIBANK MICHELLE DISCOVER LTD CITIRANK DISCOVER DISCOVER MICHELLE DISCOVER DISCOVER DISCOVER STEVE KEMPER CITIBANK MICHELLE DISCOVER CITIBANK MICHELLE CITIBANK DISCOVER CITIBANK, LTD DISCOVER CIT IBANK DISCOVER 561`4S3 Eb[6 09L L[i=Qt AHVNoNind 9fAVa i6 '2.I 96-LZ-r'[ YEAR 2M2 DATE CHECK NUMBER AMOUN-r PAID TO 0144/02 2606 650.00 CITI CARD 0114/02 2617 6500.00 DISCOVER 03/11102 2684 6800.00 DISCOVER 06•/17/02 2893 500.00 CITI CARD 06111/02 2890 6500.00 DISCOVER 07/29/02 2963 7652.90 C171 CARD 07x'29/02 2962 4980.72 DISCOVER 07,"18'02 2941 4000.00 DISCOVER. 0711?02 2939 3000.00 CITI CARD I U20102 3138 4000.00 CITI CARD 11/20!02 3139 1000.00 DISCOVER TOTAL $45583.62 60/FOd 6416 C92. 4TL-C[1 AHVNOW'lnd 9:A4'Ci ;N:Ci S6-LT..--Z1 YEAR 200_ DATE CHECKNUN48ER AMOUNT PAIDTO 01/27/03 3248 2500.00 CITICARD 02/13/03 3275 3360.80 OF CAPITAL 03/14/03 3318 3000.00 DISCOVER 04/02/03 3356 3000.00 CITICARD 05109103 3404 5500.00 CITICARD 05/15/03 3425 500.00 DISCOVER 05/30103 3451 SOMA) CITICARD 06/12103 3453 2000,00 DISCOVER 07110103 3501 5500.00 CITICARD' 07/10103 3502 2000.00 DISCOVER 0$/11/03 3558 5500.00 CITICARD 08/11/03 3559 2500.00 DISCOVER 09130/03 3646 5000.00 CITICARD 09/30/03 3647 2000.00 DISCOVER 10/28103 3662 2000.00 DISCOVER 11/03/03 3691 2000.00 CITICARD 12,11/03 3,141 1000.00 CITICARD 12/11/03 3742 1000.00 DISCOVER TOTAL $53.360.80 6di96d 6416 £9L LTL=QY t:'"No9{l" SIAVC Ld:T;Y SO-LZ-ZT YEAR 2004 DATE CHECK NUMBER AMOUNT 01/09J04 3786 1000.00 01114i04 3805 4500.00 01/26104 3806 1444.78 01/29/04 3825 1000.00 01x30/04 3827 3000.00 0213/04 3849 1251.98 02i'26/04 3866 900.00 02/27104 3865 4000.00 03/30x04 3939 4000.00 04/15/04 3959 1000,00 0&11 `04 4031 5000.00 06114!04 4032 3000.00 07,115!04 4101 3000.00 0715/04 4100 5000.00 08/13/04 4127 3000.00 08/13104 4126 5150.00 08!27104 4142 5100.00 09!15/04 4182 3800.00 10!01!04 4205 5490.00 10/28/04 4254 3549.00 0/28/04 42.55 2500.00 10129/04 4282 5150.00 TOTAL $72,835.76 PAYABLE TO PAID TO DISCOVER CITI CARD DELL PREF DISCOVER CITI MICHELLE DISCOVER CITI CARD CITI CART) DISCOVER CITI CARD DISCOVER DISCOVER CITI CARD CITI CARD DISCOVER CITI CARD DISCOVER. CITI CARD DISCOVER CITI CARD CITI CARD 60/LOd 6bT6 C4L LTL-Qf AUVN0N7IId SIAVC 90:£f SO-LZ-Z! YEAR 2005 DATE CFIECK\UMBER AMOUNT PAID TO 0]110105 4347 6750.00 CITICARD 02/241'05 4409 6000.00 CITICARD 0115/05 4434 4350.57 DISCOVER 'T'OTAL $17100.57 60i90d BITE £94 LTL=QT Aul NoNind SIAva 90:£t SS-LZ-ZT t DAVIS PULMONARY ASSOCIATES, IN THE COURT OF COMMON PLEAS OF P.C., AND STEPHEN J. DAVIS, M.D., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : DOCKET NO. 05 - 3242 V. MICHELLE A. HOLTZAPPLE AND GARY HOLTZAPPLE, Defendants CIVIL ACTION - LAW & EQUITY CONSEQUENTIAL DAMAGES Accounting Fees to McKonly & Asbury Accounting Fees to McKonly & Asbury Fees for lock change Expenses for Natasha Richards Certified Mail Expenses for Stephen J. Davis Salary for Penny Zimmerman Salary for John Richards Checks for new checking account PA State Bank new credit card charge T.D. Mills for new stamper for new act Estimated time for Penny until August 16 1h Vacation time paid to Defendant but not earned $2,070.00 $1,750.00 $ 145.99 $1,252.00 $ 10.35 $8,325.00 $1,960.00 $ 825.00 S 96.00 $ 5.00 $ 27.63 $ 768.00 $ 761.05 TOTAL .......................................................................$17,996.02 EXHIBIT B IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAVIS PULMONARY ASSOCIATES, P.C. AND STEPHEN J. DAVIS, M.D., Plaintiffs DOCKET NO. 05 - 3242 V. MICHELLE A. HOLTZAPPLE AND GARY HOLTZAPPLE, Defendants CIVIL ACTION - LAW & EQUITY VERIFICATION I am Stephen J. Davis, M.D., president of Davis Pulmonary Associates, P.C., and I am authorized to sign this verification on behalf of the corporation. I am also an individual plaintiff in this action. The words of the foregoing Complaint and the legal conclusions contained in the document are those of my attorney and not mine, however, the Complaint is based upon information that I have provided to my attorney or that my attorney has found upon reasonable investigation and provided to me. The facts averred in the foregoing Complaint are true and correct to the best of my knowledge, information and belief, and I understand that this verification is made subject to 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. Date Stephen J. Davis, M.D. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAVIS PULMONARY ASSOCIATES, P.C. AND STEPHEN J. DAVIS, M.D., Plaintiffs DOCKET NO. 05 - 3242 V. MICHELLE A. HOLTZAPPLE AND GARY HOLTZAPPLE, Defendants CIVIL ACTION - LAW & EQUITY CERTIFICATE OF SERVICE I hereby certify that, on this date, I have served a true and correct copy of the foregoing Complaint upon the following and in the manner specified, which service satisfies Pa.R.C.P. 440: UNITED STATES FIRST CLASS MAIL POSTAGE PREPAID TO: R. Mark Thomas, Esquire 101 South Market Street Mechanicsburg, PA 17055-3851 j --? -0 ? Date Hubert X. Gil y, Esquire Supreme C rt I.D. No. 29943 Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, PA 17013 (717) 243-4574 (Attorney for Plaintiffs) n P Costopoulos, Foster & Fields By: David J. Foster, Esquire I.D. No.: 23151 831 Market Street/P.O. Box 222 Lemoyne, PA 17043-0222 Phone: (717) 761-2121 Attorney for RIGINAL Gary Holtzapple DAVIS PULMONARY ASSOCIATES, : P.C. AND STEPHEN J. DAVIS, M.D., : Plaintiffs IN THE OF COMMON PLEAS COUNTY, PENNA. DOCKET NO. VS. MICHELLE A. HOLTZAPPLE AND GARY HOLTZAPPLE, Defendants CIVIL ACTION ? LAW & EQUITY AND NOW comes the Defendant, Gary Holtzapple, by David J. Foster, Esquire, Costopoulos, Foster & Fields, and 1. This civil action in law and equity seeks redress Michelle A. Holtzapple and Gary Holtzapple, who at all times been and remain husband and wife. 2. The claims arise from the Defendant wife embezzlement/theft of funds of the Plaintiffs while an 3. No wrongdoing was committed by Defendant wrongdoing on the part of Gary Holtzapple alleged in the 4. Defendant Gary Holtzapple was not aware of the wife, Defendant Michelle Holtzapple; nor is it alleged in the Coml through his attorney, avers as follows: the Defendants to this action have Holtzapple's alleged of the Plaintiffs. Holtzapple nor is any conduct of his that Defendant Gary -I- Holtzapple was aware of the wrongful conduct of Defendant Michelle Holtzapple. 5. Defendant Gary Holtzapple is and was a totally innocent spouse of the alleged wrongdoer, Defendant Michelle Holtzapple. 6. The Complaint acknowledges that - despite Defendant Gary Holtzapple's non-involvement in the wrongdoing of his wife - the Defendant4 (Michelle Holtzapple and Gary Holtzapple) have reimbursed Plaintiffs in the amount of 1$154,000 out of the total alleged loss of $315,778.79 - essentially one half of the total alleged loss. 7. The total amount of the loss as alleged in the Complaint is set forth in Exhibit A attached to the Complaint; no checks written by Michelle Holtzapple as alleged in the Complaint were paid or payable to Gary Holtzapple, but were jpaid either to Defendant Michelle Holtzapple or to various credit card institutions. 8. The Complaint seeks redress from Defendant Gar* Holtzapple personally in counts IV, IX and X of the Complaint. 9. Paragraphs 1 through 8 above are incorporated herein by reference. 10. The allegations in Paragraphs 50 through 54 of the Complaint are patently inconsistent in fact with the list of specific checks listed in Exhibit A in the Complaint detailing the alleged wrongdoing of the Defendant Michelle 11. Pennsylvania Uniform Fraudulent Transfer Act (121 Pa.C.S. § 5101 et seq.) does not apply to the facts as alleged in the Complaint. 12. Plaintiffs have failed to state a claim upon which Defendant Gary Holtzapple in Count V of the Complaint. can be granted as to -2- .i M WHEREFORE, Defendant Gary Holtzapple respectfully requests that Count V of the Compliant be stricken. (CONSTRUCTIVE TRUST) 13. Paragraphs 1 through 12 above are incorporate herein by reference. 14. Plaintiffs seek consequential damages in the amount of $17,996.02 plus interest, which are not subject to equitable relief under the theory of constructive trust. 15. With respect to the claim for consequential damages, the Plaintiffs have failed to state a claim upon which relief can be granted as to t Defendant Gary Holtzapple. WHEREFORE, Defendant Gary Holtzapple respectfully equests the Honorable Court to strike from Count IX of the Plaintiffs' Complaint the cla m for consequential damages. (UNJUST ENRICHMENT) 16. Paragraphs 1 through 15 above are incorporated 17. Plaintiffs seek consequential damages in the am4 interest which are not subject to equitable relief under the 18. With respect to the claim for consequential ( failed to state a claim upon which relief can be granted as to the Holtzapple. WHEREFORE, Defendant Gary Holtzapple respectfully Court to strike from Count X of the Plaintiffs' Complaint the cla )in by reference. of $17,996.02 plus of unjust enrichment. , the Plaintiffs have Gary the Honorable consequential -3- damages. Date: ? 3 Respectfully David J. Foster; 8sq PA I.D. No.: 23151 COSTOPOULOS,F, 831 Market Street/P. Lemoyne, PA 17043 Phone: (717) 761-21 -4- TER & FIELDS Box 222 CERTIFICATE OF SERVICE I, Tiffany M. Miller, a secretary for the law offices of ( hereby certify that on this 3 1 day of May, 2006, a true and PRELIMINARYOBJECTIONS OFDEFENDANT GARYHOL COMPLAINT was served upon all counsel of record by: Hand Delivery X First Class Mail, Postage Pre-Paid Certified Mail, Return Receipt Requested Fax Transmission Overnight Mail at the following address(es) and/or number(s): Hubert X. Gilroy, Esquire BROUJOS & GILROY, P.C. 4 North Hanover Street Carlisle, PA 17013 Attorney for Plaintiffs R. Mark Thomas, Esquire 101 South Market Street Mechanicsburg, PA 17055-3851 Attorney for Defendant Michelle Holt BY: COSTOPOULOS, Tiffany M. Miller Foster & Fields, copy of the foregoing PLAINTIFFS' & FIELDS _ n r 'TI r , i ,. C G IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAVIS PULMONARY ASSOCIATES, P.C. AND STEPHEN J. DAVIS, M. D., DOCKET NO. 05-3242 Plaintiffs V. CIVIL ACTION - LAW & EQUITY MICHELLE A. HOLTZAPPLE AND GARY HOLTZAPPLE, Defendants ANSWER TO COMPLAINT AND NOW, comes Defendant, Michelle A. Holtzapple, by and through her counsel, R. Mark Thomas, Esquire, and files this answer to the complaint as follows: 1. Admitted. 2. Admitted. 3. Admitted in part. Denied in part. Although, Defendant's permanent residence is as stated, she is temporarily staying at 1100 Claremont Road, Carlisle, Pennsylvania, and is scheduled to remain there until January 10, 2007. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. 10. Admitted. 11. Admitted. 12. Admitted in part. Denied in part. It is admitted that Davis so informed Michelle A. Holtzapple that she would not thereafter be signing checks as drawer/maker, but it is denied that this, in fact, happened since Davis continued to rely upon Defendant, Michelle A. Holtzapple, to draw, make and sign checks. 13. Denied for the reasons stated above. 14. Admitted in part. Denied as to the implication that Gary Holtzapple knew of these transactions. 15. Admitted in part. Denied in part. It is admitted that Michelle A. Holtzapple transferred and converted Plaintiff's property to Michelle A. Holtzapple. However, to the extent that this allegation implies that Defendant, Gary Holtzapple, was aware of these transfers and conversions, said implication is denied. 16. Denied. Defendant, Michelle A. Holtzapple, is without sufficient knowledge, information or belief to either affirm or deny the amount set forth in this allegation and, therefore, same is denied and strict proof thereof demanded at time of trial. 17. Admitted in part. It is admitted only that Michelle A. Holtzapple concealed her actions from Plaintiffs. The balance of this allegation is a conclusion of law to which no responsive pleading is required. 18. Denied. Michelle A. Holtzapple is without sufficient knowledge, information or belief to determine on what date Davis learned that she was continuing to sign checks as drawer/maker on the account in question and therefore strict proof thereof is demanded at time of trial. And further, Davis knew that Defendant, Michelle A. Holtzapple, continued to sign checks from December 2, 2002, until her last day of work. 19. Admitted. 20. Denied. Following reasonable investigation, Michelle A. Holtzapple is without sufficient knowledge, information or belief to either affirm or deny this allegation and, therefore, same is denied. 21. Denied. Following reasonable investigation, Michelle A. Holtzapple is without sufficient knowledge, information or belief to either affirm or deny this allegation and, therefore, same is denied. 22. Admitted in part. Denied in part. It is admitted that Michelle A. Holtzapple committed the actions as alleged, but to the extent that this allegation characterizes those actions on her behalf said characterizations are denied. 23. Admitted only in that Plaintiff lost the use of funds, the exact amount of which is unknown to Defendant, Michelle A. Holtzapple. 24. Denied. Following reasonable investigation, Michelle A. Holtzapple is without sufficient knowledge, information or belief to either affirm or deny this allegation and, therefore, same is denied. 25. Denied. Following reasonable investigation, Michelle A. Holtzapple is without sufficient knowledge, information or belief to either affirm or deny this allegation and, therefore, same is denied. 26. Denied. Following reasonable investigation, Michelle A. Holtzapple is without sufficient knowledge, information or belief to either affirm or deny this allegation and, therefore, same is denied. 27. Admitted. 28. Admitted in part. Denied in part. It is admitted that Defendants have reimbursed Plaintiffs the sum of $154,000.00, but it is denied that this is the total amount paid since Defendant, Michelle A. Holtzapple, has made additional restitution payments since her date of sentence on January 10, 2006. 29. Admitted that Plaintiffs are entitled to reimbursement, but it is denied that the amounts shown here are accurate. 30. Denied. This allegation is a conclusion of law to which no responsive pleading is required, and, therefore, same is denied. 31. Denied. This allegation is a conclusion of law to which no responsive pleading is required, and, therefore, same is denied. 32. Admitted. COUNT I - FRAUD 33. Answers 1 through 32, above, are incorporated herein by reference as though fully set forth at length. 34. Denied. This allegation is a conclusion of law to which no responsive pleading is required and, therefore, same is denied. WHEREFORE, Defendant, Michelle A. Holtzapple, respectfully requests this Honorable Court to direct judgment be entered in favor of Plaintiffs and against Defendant, Michelle A. Holtzapple, but only in the amount remaining due and outstanding as of the date judgment is entered. With respect to consequential damages, Defendant, Michelle A. Holtzapple, prays that this Honorable Court will enter judgment in favor of Defendant and against Davis. COUNT II - CONVERSION - COMMON LAW 35. Answers 1 through 34, above, are incorporated herein by reference as though fully set forth at length. 36. Denied. This allegation is a conclusion of law to which no responsive pleading is required and, therefore, same is denied. WHEREFORE, Defendant, Michelle A. Holtzapple, respectfully requests this Honorable Court to direct judgment be entered in her favor and against Plaintiffs on this count. COUNT III - BREACH OF FIDUCIARY DUTY 37. Answers 1 through 36, above, are incorporated herein by reference as though fully set forth at length. 38. Denied. This allegation is a conclusion of law to which no responsive pleading is required and, therefore, same is denied. 39. Denied. This allegation is a conclusion of law to which no responsive pleading is required and, therefore, same is denied. 40. Denied. This allegation is a conclusion of law to which no responsive pleading is required and, therefore, same is denied. 41. Denied. Defendant is without sufficient knowledge, information or belief to either affirm or deny this allegation and, therefore, same is denied and strict proof thereof demanded at time of trial. 42. Denied. This allegation is a conclusion of law to which no responsive pleading is required and, therefore, same is denied. WHEREFORE, Defendant, Michelle A. Holtzapple, respectfully requests this Honorable Court to direct judgment be entered in her favor and against Plaintiffs on this count. COUNT IV - BREACH OF EMPLOYMENT CONTRACT 43. Answers 1 through 42, above, are incorporated herein by reference as though fully set forth at length. 44. Denied. This allegation is a conclusion of law to which no responsive pleading is required and, therefore, same is denied. 45. Denied. It is denied that there was an employment contract as such is defined in Pennsylvania law. Defendant was an employee-at-will, who was compensated for performing the duties assigned to her. 46. Denied. This allegation is a conclusion of law to which no responsive pleading is required and, therefore, same is denied. 47. Denied. Defendant is without sufficient knowledge, information or belief to either affirm or deny this allegation and, therefore, same is denied and strict proof thereof demanded at time of trial. 48. Denied. This allegation is a conclusion of law to which no responsive pleading is required and, therefore, same is denied. WHEREFORE, Defendant, Michelle A. Holtzapple, respectfully requests this Honorable Court to direct judgment be entered in her favor and against Plaintiffs on this count. COUNT V - STATUTORY ACTION FOR FRAUDULENT TRANSFER PURSUANT TO PA UNIFORM FRAUDULENT TRANSFER ACT (12 Pa.C.S. § 5101 et seq.) 49. Answers 1 through 48, above, are incorporated herein by reference as though fully set forth at length. 50. Denied. All assets owned by Defendant, Michelle A. Holtzapple, that were owned either in her own right or jointly with Defendant, Gary Holtzapple, remained as they were held prior to the conversion. 51. Denied. This allegation is a conclusion of law to which no responsive pleading is required and, therefore, same is denied. 52. Denied. While it has been admitted that Defendant, Michelle A. Holtzapple, transferred Plaintiffs' property for her benefit. It is denied that it was done so with the intent to hinder, delay or defraud Plaintiffs or with the intent of concealing or placing Plaintiffs' assets out of the reach of Plaintiffs. 53. 0-ii) Denied. These allegations are denied as stated to the extent that Plaintiffs believe this allegation. Defendant demands proof at time of trial. 54. Denied. Defendant has no knowledge of an alleged transfer of assets to an insider for any of the reasons set forth by Plaintiffs and demands strict proof thereof at time of trial. 55. Denied. Defendant has no knowledge of an alleged transfer of assets to an insider for any of the reasons set forth by Plaintiffs and demands strict proof thereof at time of trial. 56. Denied. This allegation is a conclusion of law to which no responsive pleading is required and, therefore, same is denied. WHEREFORE, Defendant, Michelle A. Holtzapple, respectfully requests this Honorable Court to direct judgment be entered in her favor and against Plaintiffs on this count. COUNT VI - BREACH OF IMPLIED CONTRACT 57. Answers I through 56, above, are incorporated herein by reference as though fully set forth at length. 58. Denied. It is denied that the parties had an employment contract, but rather Defendant, Michelle A. Holtzapple, was an employee at will who could be terminated from her employment at any time and could quit at any time without reason. The implied duty of good faith and fair dealing is a principal that applies to contracts between merchants, which this was not. 59. Denied. This allegation is denied for the same reasons as set forth in Paragraph 58. 60. Admitted in part. Denied in part. It is admitted that Plaintiff has incurred damages as a result of the conduct of Defendant, Michelle A. Holtzapple. It is denied that those damages flow from a breach of her duty of good faith and fair dealing for the reasons set forth above. Further, Defendant is without sufficient knowledge, information, or belief to either affirm or deny the amounts set forth in this allegation and, therefore, same is denied and strict proof thereof demanded at time of trial. WHEREFORE, Defendant, Michelle A. Holtzapple, respectfully requests this Honorable Court to direct judgment be entered in her favor and against Plaintiffs on this count. COUNT VII - CONSTRUCTIVE TRUST Davis Pulmonary Associates. P. C. and Stephen J David. M D v Michelle A Holtzamle (in the alternative) 61. Answers 1 through 60, above, are incorporated herein by reference as though fully set forth at length. 62. Admitted. 63. Denied. Whatever unreimbursed funds are outstanding, they are no longer in the possession of Defendant, Michelle A. Holtzapple, and, therefore, it is denied that she holds them in a constructive trust for Plaintiff's benefit. 64. Denied. This allegation is a conclusion of law to which no responsive pleading is required and, therefore, same is denied. 65. Admitted in part. Denied in part. While it is admitted that Defendant, Michelle A. Holtzapple, has not repaid all monies to Plaintiffs, Defendant, Michelle A. Holtzapple, has paid additional funds which reduce the amounts claimed by Plaintiffs in this paragraph. 66. Denied. This allegation is a conclusion of law to which no responsive pleading is required and, therefore, same is denied. 67. Denied. This allegation is a conclusion of law to which no responsive pleading is required and, therefore, same is denied. WHEREFORE, Defendant, Michelle A. Holtzapple, respectfully requests this Honorable Court to direct judgment be entered in her favor and against Plaintiffs on this count. COUNT VIII - UNJUST ENRICHMENT Davis Pulmonary Associates, P. C. and Stephen J David, M D v Michelle A Holtzapple (in the alternative) 68. Answers 1 through 67, above, are incorporated herein by reference as though fully set forth at length. 69. Admitted. 70. Admitted in part. Denied in part. While it is admitted that Defendant, Michelle A. Holtzapple, could be unjustly enriched if allowed to retain Plaintiff's funds, it is denied that the unjust enrichment amounts to $161,778.79, and it is also denied that the consequential damages could be considered unjust enrichment to Michelle A. Holtzapple. 71. Denied. This allegation is a conclusion of law to which no responsive pleading is required and, therefore, same is denied. 72. Denied. This allegation is a conclusion of law to which no responsive pleading is required and, therefore, same is denied. WHEREFORE, Defendant, Michelle A. Holtzapple, respectfully requests this Honorable Court to direct judgment be entered in her favor and against Plaintiffs on this count. COUNT IX - CONSTRUCTIVE TRUST Davis Pulmonary Associates, P C and Stephen J Davis, M D.-v. Gary Holtzapple (in the alternative) 73. Answers 1 through 72, above, are incorporated herein by reference as though fully set forth at length. 74.-81. These allegations pertain to a Defendant other than Defendant, Michelle A. Holtzapple, and, therefore, no responsive pleading is required. COUNT X - UNJUST ENRICHMENT Davis Pulmonary Associates. P. C. and Stephen J Davis. M D v Gary Holtzapple (in the alternative) 82. Answers 1 through 81, above, are incorporated herein by reference as though fully set forth at length. 83.-84. These allegations pertain to a Defendant other than Defendant, Michelle A. Holtzapple, and, therefore, no responsive pleading is required. 02? - " J;.? DATE Respectfully submitted, R. Mark Thomas, Esquire Supreme Court ID No. 41301 101 South Market Street Mechanicsburg, PA 17050 (717) 796-2100 Attorney for Defendant, Michelle A. Holtzapple VERIFICATION I, MICHELLE A. HOLTZAPPLE, hereby verify that the statements made in the foregoing Answer To Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C. S. §4904, relating to unworn falsification to authorities. a 10, 41 (1 WA A 9, MICHELLE A. HOLTZAF'Ott DATED: -Y-goqo CERTIFICATE OF SERVICE I, R. Mark Thomas, Esquire, hereby certify that I have served a true and correct copy of the within document on the following persons by depositing a true and correct copy of the same in the U.S. Mail at Mechanicsburg, Pennsylvania, First Class Postage pre-paid, addressed to: Hubert X. Gilroy, Esquire Broujos & Gilroy, P. C. 4 North Hanover Street Carlisle, PA 17013 David J. Foster, Esquire Costopoulos, Foster & Fields 831 Market Street P. O. BOX 222 Lemoyne, PA 17043 Dated: June /oZ , 2006 R. Mark Thomas, Esq. - < TI -= T C DAVIS PULMONARY ASSOCIATES, P.C. and STEPHEN J. DAVIS, M.D., Plaintiffs VS. MICHELLE A. HOLTZAPPLE and GARY HOLTZAPPLE, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND CO., PENNSYLVANIA : NO. 2005-3242 Term PRAECIPE TO LIST CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court 1. State the matter to be argued: Preliminary Objections filed by Defendant Gary Holtzapple 2. Identify counsel who will argue cases: (a) for Plaintiff: Hubert X. Gilroy, Esquire, 4 N. Hanover St., Carlisle, PA 17013 (b) for Defendant: David J. Foster, Esquire, 831 Market St., Lemoyne, PA 17043 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: September 6, 2006 DATE: August 11. 2006 Hubert X. Gilroy, Esquire Attorney for aintiff 4 North Hanover Street Carlisle, PA 17013 (717) 2434574 ID #29943 p T ??' t'il (,' ? I11? .-. b r ?=: _ ?? ' ?_ i Q G. ?_? ?c,l?? l l T ? ..- ? { L7 DAVIS PULMONARY ASSOCIATES, P.C. and STEPHEN J. DAVIS, M.D., Plaintiffs VS. MICHELLE A. HOLTZAPPLE and GARY HOLTZAPPLE, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND CO., PENNSYLVANIA NO. 2005-3242 Term STIPULATION Plaintiffs, Davis Pulmonary Associates, P.C. and Stephen J. Davis, M.D. and Defendant, Gary Holtzapple, by their attorneys, hereby Stipulate and agree as follows: 1. Plaintiff withdraws any claim for consequential damages claimed in Counts XI and X of the Complaint. Plaintiff reserves the right to proceed with other damages in Counts IX and X and to proceed with appropriate consequential damages in other Counts. 2. Defendant, Gary Holtzapple, hereby agrees to withdraw the Preliminary Objections filed in this case and agrees to file an Answer within twenty days of the date of this Stipulation. DATE: August 29, 2006 Hubert X. Gilroy squ'. Attorney for P ntiff 4 North Han er Street Carlisle, P 17013 (717) 243-4574 ID #29943 DATE: S ?0 - n?-Q= - David J. Fosttft? Esquire Attorney for Gary Holtzapple 831 Market Street P.O. Box 222 Lemoyne, PA 17043-0222 (717) 761-2121 n ?.: t? 'C'??{:.. ? __ ? ? tai ?fi l ' ? t` i.?. C" CJ1 %,r _7 c . i ? .?`,' ?' ?'Sffl r ?' { tB I Costopoulos, Foster & Fields By: David J. Foster, Esquire I.D. No.: 23161 831 Market Street/P.O. Box 222 Lemoyne, PA 17043-0222 Phone: (717) 761-2121 ORIGINAL Attorney for Defendant Gary Holtzapple DAVIS PULMONARY ASSOCIATES, P.C. AND STEPHEN J. DAVIS, M.D., Plaintiffs V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNA. DOCKET NO. 05-3242 CIVIL ACTION - LAW & EQUITY MICHELLE A. HOLTZAPPLE AND GARY HOLTZAPPLE, Defendants ANSWER AND NEW MATTER OF DEFENDANT GARY HOLTZAPPLE AND NOW, comes Defendant, Gary Holtzapple, by and through his counsel, David J. Foster, Esquire, Costopoulos, Foster & Fields, and files this answer and new matter to the complaint as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Defendant Gary Holtzapple is without sufficient information, knowledge or belief to either affirm or deny this allegation, and therefore same is denied and proof thereof is demanded. 7. Defendant Gary Holtzapple is without sufficient information, knowledge or -1- belief to either affirm or deny this allegation, and therefore same is denied and proof thereof is demanded. 8. Admitted that for some time Defendant Michelle A. Holtzapple was employed by Pulmonary Associates as office manager; Defendant Gary Holtzapple is without sufficient information, knowledge or belief to either affirm or deny the remaining averments of the paragraph, and therefore same is denied and proof thereof is demanded. 9. Denied as stated; by way of further answer, see answer to #8 above. 10. Defendant Gary Holtzapple is without sufficient information, knowledge or belief to either affirm or deny this allegation, and therefore same is denied and proof thereof is demanded. 11. Defendant Gary Holtzapple is without sufficient information, knowledge or belief to either affirm or deny this allegation, and therefore same is denied and proof thereof is demanded. 12. Defendant Gary Holtzapple is without sufficient information, knowledge or belief to either affirm or deny this allegation, and therefore same is denied and proof thereof is demanded. 13. Defendant Gary Holtzapple is without sufficient information, knowledge or belief to either affirm or deny this allegation, and therefore same is denied and proof thereof is demanded. 14. Defendant Gary Holtzapple is without sufficient information, knowledge or belief to either affirm or deny this allegation, and therefore same is denied and proof thereof is demanded; although Defendant Gary Holtzapple has learned subsequent to these events of Defendant Michelle Holtzapple's actions leading to her guilty plea to -2- various criminal charges. 15. Defendant Gary Holtzapple is without sufficient information, knowledge or belief to either affirm or deny this allegation, and therefore same is denied and proof thereof is demanded; although Defendant Gary Holtzapple has learned subsequent to these events of Defendant Michelle Holtzapple's actions leading to her guilty plea to various criminal charges. 16. Defendant Gary Holtzapple is without sufficient information, knowledge or belief to either affirm or deny this allegation, and therefore same is denied and proof thereof is demanded; although Defendant Gary Holtzapple has learned subsequent to these events of Defendant Michelle Holtzapple's actions leading to her guilty plea to various criminal charges. 17. Defendant Gary Holtzapple is without sufficient information, knowledge or belief to either affirm or deny this allegation, and therefore same is denied and proof thereof is demanded; although Defendant Gary Holtzapple has learned subsequent to these events of Defendant Michelle Holtzapple's actions leading to her guilty plea to various criminal charges; in addition, Defendant Michelle Holtzapple concealed her actions from Defendant Gary Holtzapple. 18. Defendant Gary Holtzapple is without sufficient information, knowledge or belief to either affirm or deny this allegation, and therefore same is denied and proof thereof is demanded. 19. Defendant Gary Holtzapple is without sufficient information, knowledge or belief to either affirm or deny this allegation, and therefore same is denied and proof thereof is demanded. -3- 20. Defendant Gary Holtzapple is without sufficient information, knowledge or belief to either affirm or deny this allegation, and therefore same is denied and proof thereof is demanded. 21. Defendant Gary Holtzapple is without sufficient information, knowledge or belief to either affirm or deny this allegation, and therefore same is denied and proof thereof is demanded. 22. Defendant Gary Holtzapple is without sufficient information, knowledge or belief to either affirm or deny this allegation, and therefore same is denied and proof thereof is demanded. 23. Defendant Gary Holtzapple is without sufficient information, knowledge or belief to either affirm or deny this allegation, and therefore same is denied and proof thereof is demanded. 24. Defendant Gary Holtzapple is without sufficient information, knowledge or belief to either affirm or deny this allegation, and therefore same is denied and proof thereof is demanded. 25. Defendant Gary Holtzapple is without sufficient information, knowledge or belief to either affirm or deny this allegation, and therefore same is denied and proof thereof is demanded. 26. Defendant Gary Holtzapple is without sufficient information, knowledge or belief to either affirm or deny this allegation, and therefore same is denied and proof thereof is demanded. 27. Admitted that Defendant Michelle Holtzapple pled guilty to various criminal charges. -4- 28, Admitted in part; denied in part. It is admitted that the Defendants have reimbursed Plaintiffs the sum of $154,000.00, but it is denied that this is the total amount paid since the Defendant, Michelle Holtzapple, has made additional restitution payments thereafter. 29. Defendant Gary Holtzapple is without sufficient information, knowledge or belief to either affirm or deny this allegation, and therefore same is denied and proof thereof is demanded. 30. Denied as a conclusion of law to which no responsive pleading is required. 31. Denied as a conclusion of law to which no responsive pleading is required. 32. Admitted. COUNT I - FRAUD Davis Pulmonary Associates, P.C. and Stephen J. Davis, M.D. v. Michelle Holtzapple 33. No answer required. 34. This allegation pertains to a Defendant other than the Defendant Gary Holtzapple and therefore no responsive pleading is required. COUNT II - CONVERSION - COMMON LAW Davis Pulmonary Associates, P.C. and Stephen J. Davis, M.D. v. Michelle Holtzapple 35. No answer required. 36. This allegation pertains to a Defendant other than the Defendant Gary Holtzapple and therefore no responsive pleading is required. -5- COUNT III - BREACH OF FIDUCIARY DUTY Davis Pulmonary Associates P.C. and Stephen J. Davis, M.D. v. Michelle Holtzapple 37. No answer required. 38. This allegation pertains to a Defendant other than the Defendant Gary Holtzapple and therefore no responsive pleading is required. 39. This allegation pertains to a Defendant other than the Defendant Gary Holtzapple and therefore no responsive pleading is required. 40. This allegation pertains to a Defendant other than the Defendant Gary Holtzapple and therefore no responsive pleading is required. 41. This allegation pertains to a Defendant other than the Defendant Gary Holtzapple and therefore no responsive pleading is required. 42. This allegation pertains to a Defendant other than the Defendant Gary Holtzapple and therefore no responsive pleading is required. COUNT IV - BREACH OF EMPLOYMENT CONTRACT Davis Pulmonary/ Associates, P.C. and Stephen J. Davis, M.D. v. Michelle Holtzapple 43. No answer required. 44. This allegation pertains to a Defendant other than the Defendant Gary Holtzapple and therefore no responsive pleading is required. 45. This allegation pertains to a Defendant other than the Defendant Gary Holtzapple and therefore no responsive pleading is required. 46. This allegation pertains to a Defendant other than the Defendant Gary -6- Holtzapple and therefore no responsive pleading is required. 47. This allegation pertains to a Defendant other than the Defendant Gary Holtzapple and therefore no responsive pleading is required. 48. This allegation pertains to a Defendant other than the Defendant Gary Holtzapple and therefore no responsive pleading is required. COUNT V - STATUTORY ACTION FOR FRAUDULENT TRANSFER PURSUANT TO THE PA UNIFORM FRAUDULENT TRANSFER ACT (12 Pa.C.S. § 5101 etseq.) Davis Pulmonary Associates, P.C. and Stephen J. Davis, M.D. v. Michelle Holtzapplle and Gary Holtzapple 49. No answer required. 50. Admitted that, according to the listing of checks attached to the Plaintiffs' Complaint, a check from Plaintiffs' account in the amount of $3,500 was purportedly paid to one Steve Kemper on or about July 10, 2001; Defendant Gary Holtzapple recalls that at about that time, Steve Kemper had performed repairs to the driveway of the Defendants' marital residence; Defendant Gary Holtzapple was unaware of the source of this payment until after this litigation began. Other than that payment, all other averments in this paragraph are denied; no other property or proceeds of property of the Plaintiffs was transferred to Gary Holtzapple outright or to the jointly held property of both Defendants. 51. Denied as a conclusion of law to which no responsive pleading is required. 52. Denied; see answer to #50 above; in addition, Defendant Gary Holtzapple -7- has no knowledge of as to the allegations of Defendant Michelle Holtzapple's specific intent. 53. Defendant Gary Holtzapple is without sufficient information, knowledge or belief to either affirm or deny this allegation, and therefore same is denied and proof thereof is demanded. 54. Defendant Gary Holtzapple is without sufficient information, knowledge or belief to either affirm or deny this allegation, and therefore same is denied and proof thereof is demanded. 55. Defendant Gary Holtzapple is without sufficient information, knowledge or belief to either affirm or deny this allegation, and therefore same is denied and proof thereof is demanded. 56. Denied as a conclusion of law to which no responsive pleading is required. WHEREFORE, Defendant Gary Holtzapple respectfully requests that this count be dismissed. COUNT VI - BREACH OF IMPLIED CONTRACT Davis Pulmona!y Associates P.C. and Stephen J. Davis M.D. v. Michelle Holtzapple (in the alternative) 57. No answer required. 58. This allegation pertains to a Defendant other than the Defendant Gary Holtzapple and therefore no responsive pleading is required. -8- 59. This allegation pertains to a Defendant other than the Defendant Gary Holtzapple and therefore no responsive pleading is required. 60. This allegation pertains to a Defendant other than the Defendant Gary Holtzapple and therefore no responsive pleading is required. COUNT VII - CONSTRUCTIVE TRUST Davis Pulmonary Associates P.C. and Stephen J. Davis, M.D. v. Michelle Holtzapple (in the alternative) 61. No answer required. 62. This allegation pertains to a Defendant other than the Defendant Gary Holtzapple and therefore no responsive pleading is required. 63. This allegation pertains to a Defendant other than the Defendant Gary Holtzapple and therefore no responsive pleading is required. 64. This allegation pertains to a Defendant other than the Defendant Gary Holtzapple and therefore no responsive pleading is required. 65. This allegation pertains to a Defendant other than the Defendant Gary Holtzapple and therefore no responsive pleading is required. 66. This allegation pertains to a Defendant other than the Defendant Gary Holtzapple and therefore no responsive pleading is required. 67. This allegation pertains to a Defendant other than the Defendant Gary Holtzapple and therefore no responsive pleading is required. -9- COUNT VIII - UNJUST ENRICHMENT Davis Pulmonary Associates P.C. and Stephen J Davis M.D. v. Michelle Holtzapple (in the alternative) 68. No answer required. 69. This allegation pertains to a Defendant other than the Defendant Gary Holtzapple and therefore no responsive pleading is required. 70. This allegation pertains to a Defendant other than the Defendant Gary Holtzapple and therefore no responsive pleading is required. 71. This allegation pertains to a Defendant other than the Defendant Gary Holtzapple and therefore no responsive pleading is required. 72. This allegation pertains to a Defendant other than the Defendant Gary Holtzapple and therefore no responsive pleading is required. COUNT IX - CONSTRUCTIVE TRUST Davis Pulmonary Associates, P.C. and Stephen J. Davis, M.D. v. Gary Holtzapple (in the alternative) 73. No answer required. 74. Denied as a conclusion of law to which no responsive pleading is required. 75. Denied. By way of further answer, see answer to #50 above. 76. Denied as a conclusion of law to which no responsive pleading is required. 77. Denied as a conclusion of law to which no responsive pleading is required. 78. Denied as a conclusion of law to which no responsive pleading is required. -10- 79, Denied that Defendant Gary Holtzapple owes any further monies to Plaintiffs for the wrongful actions of Defendant Michelle Holtzapple. 80. Denied as a conclusion of law to which no responsive pleading is required. 81. Defendant Gary Holtzapple is without sufficient information, knowledge or belief to either affirm or deny this allegation, and therefore same is denied and proof thereof is demanded. WHEREFORE, Defendant Gary Holtzapple respectfully requests that this Honorable Court dismiss this count against him. COUNT X - UNJUST ENRICHMENT Davis Pulmonary Associates, P .C. and Stephen J. Davis, M.D. v. Gary Holtzapple (in the alternative) 82. No answer required. 83. Denied as a conclusion of law to which no response of pleading is required. 84. Defendant Gary Holtzapple is without sufficient information, knowledge or belief to either affirm or deny this allegation, and therefore same is denied and proof thereof is demanded. WHEREFORE, Defendant Gary Holtzapple respectfully requests that this Honorable Court dismiss this count against him. NEW MATTER 85. Defendant Gary Holtzapple was and remains totally innocent of any alleged wrongdoing on the part of his wife Michelle Holtzapple. -11- 86. Defendant Gary Holtzapple has received no monies allegedly converted by the Defendant Michelle Holtzapple other than the $3,500 payment to a driveway contractor as more fully set forth in the answer to paragraph #50 above. 87. Defendant Gary Holtzapple has, in a good faith effort to remedy the alleged wrongful actions of his wife, Michelle Holtzapple, borrowed the maximum amount possible from his individual as well as marital assets in order to make the payment of $154,000 to Plaintiffs as set forth in paragraph #28 of the Complaint, even though he had no legal obligation to do so. Defendant Gary Holtzapple has no legal obligation for any additional payments to the Plaintiffs. 88. Plaintiffs have no rightful legal claim for any consequential damages against Defendant Gary Holtzapple as set forth in paragraph #24 of the Complaint. 89. Plaintiffs have no rightful legal claim against Defendant Gary Holtzapple for Plaintiffs' attorney's fees and costs. 90. Plaintiffs have no rightful legal claim against Defendant Gary Holtzapple for any alleged emotional distress suffered by Plaintiff Davis. 91. Plaintiffs have no rightful legal claim against Defendant Gary Holtzapple for punitive damages. 92. Plaintiffs have failed to state a claim for which relief may be granted against Defendant Gary Holtzapple. WHEREFORE, Defendant Gary Holtzapple respectfully requests thatthis Honorable Court dismiss the Complaint against him. -12- Respectfully submitted: David J. Foster, squire P.A. I.D.: 23151 Costopoulos, Foster & Fields 831 Market Street/P.O. Box 222 Lemoyne, PA 17043-0222 Phone: (717) 761-2121 Attorney for Defendant Gary Holtzapple Date: September ?_, 2006 -13- VERIFICATION I, Gary Holtzapple, hereby verify that the facts set forth in the foregoing Answer & New Matter are true and correct to the best of my knowledge, information and belief. I understand that any false statements therein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. Gary lltzappl? Dated: _n9-Ou--C l0 CERTIFICATE OF SERVICE I, Tiffany M. Miller, a secretary for the law offices of Costopoulos, Foster & Fields, h hereby certify that on this ?I? / day of September, 2006, a true and correct copy of the foregoing ANSWER & NEW MATTER was served upon all counsel of record by: Hand Delivery X First Class Mail, Postage Pre-Paid Certified Mail, Return Receipt Requested Fax Transmission Overnight Mail at the following address(es) and/or number(s)- Hubert X. Gilroy, Esquire BROUJOS & GILROY, P.C. 4 North Hanover Street Carlisle, PA 17013 Attorney for Plaintiffs R. Mark Thomas, Esquire 101 South Market Street Mechanicsburg, PA 17055-3851 Attorney for Defendant Michelle Holtzapple BY: COSTOPOULOS, FOSTER & FIELDS Tiffany M. Miller DAVIS PULMONARY ASSOCIATES, P.C. and STEPHEN J. DAVIS, M.D., Plaintiffs VS. MICHELLE A. HOLTZAPPLE and GARY HOLTZAPPLE, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-3242 Term CIVIL ACTION - LAW & EQUITY PLAINTIFFS' REPLY TO NEW MATTER OF DEFENDANT GARY HOLTZAPPLE Plaintiffs, Davis Pulmonary Associates, P.C., and Stephen J. Davis, by their attorneys, Broujos & Gilroy, P.C., set forth the following in response to the New Matter filed by Defendant Gary Holtzapple: 85. Denied. Said allegation is a conclusion of law and proof thereof is demanded. By way of further answer, Plaintiffs expect that discovery in this case may demonstrate that Defendant Gary Holtzapple was aware of his wife's wrongdoing in this case, or, at a minimum, should have been aware of his wife's wrongful and criminal actions that benefited Defendant Gary Holtzapple. 86. Denied. Proof thereof is demanded. By way of further answer, Defendant Gary Holtzapple reaped a great deal of benefit from the monies converted by Defendant Michelle Holtzapple in that said monies were used to pay marital obligations, used for family trips and dinners and other entertainment, and put to other use that benefited Defendant Gary Holtzapple that Plaintiffs expect to be proven through discovery. 87. Denied. Said allegation is a conclusion of law and no responsive pleading is required. Proof thereof is demanded. Plaintiffs are without information with respect to the ability of Defendant Holtzapple to borrow more money. 88. Denied. Said allegation is a conclusion of law and no responsive pleading is required. Proof thereof is demanded. 89. Denied. Said allegation is a conclusion of law and no responsive pleading is required. Proof thereof is demanded. 90. Denied. Said allegation is a conclusion of law and no responsive pleading is required. Proof thereof is demanded. 91. Denied. Said allegation is a conclusion of law and no responsive pleading is required. Proof thereof is demanded. 92. Denied. Said allegation is a conclusion of law and no responsive pleading is required. Proof thereof is demanded. WHEREFORE, Plaintiffs request your Honorable Court to enter judgment in favor of Plaintiffs as requested in the Complaint. Date: September ?9 ( 9 2006 ? 2 V//--) Hubert X. Gilroy, squire Attorney for PI ' tiffs Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, PA 17013 717 - 243-4574 BR_ll_I•T 09;'1 3.."2 06 14:'? +17'?4 ;8' 2r L_ S t_ - ?ILR I.-, Fi'; _ PA16E 04 I verify that the statements in the foregoing pleading are true and correct. I understand that false statements herein are made subject to the penalties of 18 PaCS 4904 relating to unsworn falsification to authorities. )'1J Urh Stephen J. Davis 09-13-06 14:45 TO:DAVIS PULMONARY FROM:7172438227 P04 C? t r CTI t YI I F -a N o t c IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION DAVIS PULMONARY ASSOCIATES, P.C. CASE NUMBER: 2005-3242 AND STEPHEN J. DAVIS, M.D., Plaintiffs ISSUE NUMBER: V. PLEADING: MICHELLE A. HOLTZAPPLE AND GARY HOLTZAPPLE, PRAECIPE FOR WITHDRAWAL/ Defendants ENTRY OF APPEARANCE CODE AND CLASSIFICATION: FILED ON BEHALF OF: PLAINTIFFS. COUNSEL OF RECORD: DENNIS J. BONETTI, ESQUIRE Pa. ID# 34329 CIPRIANI & WERNER, P.C. 1011 Mumma Road, Suite 201 Lemoyne, PA 17043 (717) 975-9600 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION DAVIS PULMONARY ASSOCIATES, P.C. AND STEPHEN J. DAVIS, M.D., Plaintiffs V. MICHELLE A. HOLTZAPPLE AND GARY HOLTZAPPLE, Defendants CASE NO: 2005-3242 CIVIL ACTION - LAW & EQUITY JURY TRIAL DETMANDED PRAECIPE FOR WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Kindly withdraw my appearance on behalf of PLAINTIFFS, DAVIS PULMONARY ASSOCIATES, P.C. AND STEPHEN J. DAVIS, M.D., in the above captioned action. MARTSON EARDORFF WILLIAMS & OTTO BY: e . Gilroy, Esquire Ten East High Street Date: Carlisle, PA 17013 PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of PLAINTIFFS, DAVIS PULMONARY ASSOCIATES, P.C. AND STEPHEN J. DAVIS, M.D., in the above-captioned action. PC BY: ? /2V V Deneey J. Bonetti, Esquire Att I.D. #34329 1011 Mumma Road, Suite 201 0-7 Lemoyne, PA 17043 Date: i (717) 975-9600 4 CERTIFICATE OF SERVICE That counsel for the PLAINTIFFS hereby certifies that a true and correct copy of its PRAECIPE FOR WITHDRAWAL/ENTRY OF APPEARANCE has been served on all counsel of record, by first class mail, postage pre-paid, according to the Pennsylvania Rules of Civil Procedure, on the day of f , 2007. Hubert X. Gilroy, Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 David J. Foster, Esquire Costopolous, Foster & Fields 831 Market Street P.O. Box 222 Lemoyne, PA 17043-0222 R. Mark Thomas, Esquire 101 South Market Street Mechanicsburg, PA 17050 Respectfully submitted, CIPRIANI & WERNER, P.C. BY: J."BONETTI, ESQUIRE for the Plaintiffs C? ? Q __ +Y7j .. ?l F?_0 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION Davis Pulmonary Associates, P.C. and CASE NUMBER: 05-3242 Stephen J. Davis, M.D., ISSUE NUMBER: Plaintiffs v. Michelle A. Holtzapple and Gary Holtzapple, PLEADING: CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENAS Defendants CODE AND CLASSIFICATION: FILED ON BEHALF OF: PLAINTIFFS. COUNSEL OF RECORD: DENNIS J. BONETTI, ESQUIRE Pa. ID# 34329 CIPRIANI & WERNER, P.C. 1011 Mumma Road, Suite 201 Lemoyne, PA 17043 (717) 975-9600 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION Davis Pulmonary Associates, P.C. and ) Stephen J. Davis, M.D., ) Plaintiffs ) V. ) Michelle A. Holtzapple and Gary Holtzapple, ) Defendants ) CASE NO: 05-3242 JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENAS PURSUANT TO RULE 4009.22 As a prerequisite to service of subpoenas for documents and things pursuant to Rule 4009.22, Plaintiffs, by and through their attorneys, certifies that: (1) A notice of intent to serve the subpoenas with a copy of the subpoenas attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoenas are sought to be served, (2) a copy of the notice of intent, including the proposed subpoenas, is attached to this certificate, (3) no objections to the subpoenas has been received, and (4) the subpoenas which will be served are identical to the subpoenas which are attached to the notice of intent to serve the subpoenas. Respectfully submitted, N WERNER, P.C. BY: D IS J. BONETTI, ESQUIRE Attorney for the Plaintiffs l IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION Davis Pulmonary Associates, P.C. and Stephen J. Davis, M.D., Plaintiffs V. Michelle A. Holtzapple and Gary Holtzapple, Defendants CASE NUMBER: 05-3242 ISSUE NUMBER: PLEADING: NOTICE OF INTENT TO SERVE SUBPOENAS CODE AND CLASSIFICATION: FILED ON BEHALF OF: PLAINTIFFS. COUNSEL OF RECORD: DENNIS J. BONETTI, ESQUIRE Pa.ID# 34329 CIPRIANI & WERNER, P.C. 1011 Mumma Road, Suite 201 Lemoyne, PA 17043 (717) 975-9600 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION Davis Pulmonary Associates, P.C. and Stephen J. Davis, M.D., CASE NO: 05-3242 Plaintiffs V. Michelle A. Holtzapple and Gary Holtzapple, Defendants JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE SUBPOENAS TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Plaintiffs intend to serve subpoenas identical to the ones that are attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned objections to the subpoenas. If no objection is made the subpoenas may be served. Respectfully submitted, P.C. BY: DE) NIS J. BONETTI, ESQUIRE A orney for the Plaintiffs COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Davis Pulmonary Associates, P.C. and Stephen J. Davis, M.D. Plaintiffs V. File No. 05-3242 Michelle A. Holtzapple and Gary Holtzapple, Defendants SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Records Custodian, Pennsylvania State Employees Credit Union, P.O. Box 67013 (Name of Person or Entity) Harrisburg, PA 17106-7013 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: See Exhibit "A" attached hereto. at Cipriani & Werner, 1011 Mumma Road, Suite 201, Lemoyne, PA 17043 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Dennis J. Bonetti, lasquire ADDRESS: 1011 Mumma Road, Suite 201 Lemoyne, PA 17043 TELEPHONE: 717-975-9600 SUPREME COURT ID # _14,i2A ATTORNEYFOR: Plaintiffs BY THE COURT: Prothonotary, Civil Division Date: Seal of the Court Deputy A complete copy of any and all statements, checks, deposit slips, withdrawal slips and any other documentation for the past seven (7) years regarding Michelle and/or Gary Holtzapple with regard to the following account number: 1. 16600719 COMMONWEALTH OF PENNSYLVANIA. COUNTY OF CUMBERLAND Davis Pulmonary Associates, P.C. and Stephen J. Davis, M.D. Plaintiffs V. File No. 05-3242 Michelle A. Holtzapple and Gary Holtzapple, Defendants SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RUI,E 4009.22 TO: Records Custodian, Commerce Bank, 100 Senate Avenue Came Hill PA 17011 (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: See Exhibit "A" attached hereto at Cipriani & Werner, 1011 Mumma Road, Suite 201, Lemoyne, PA 17043 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE, FOLLOWING PERSON: NAME: Dennis J. Bonetti, Hsquire ADDRESS: 1011 Mumma Road, Suite 201 Lemoyne, PA 17043 TELEPHONE: 717-975-9600 SUPREME COURT ID # 14, ATTORNEY FOR: Plaintiffs BY THE COURT: Prothonotary, Civil Division Date: Seal of the Court Deputy EXHIBIT "A" - COMMERCE BANK A complete copy of any and all statements, checks, deposit slips, withdrawal slips and any other documentation for the past seven (7) years regarding Michelle and/or Gary Holtzapple with regard to the following account numbers: 1. 536933880 2. 513139998 CERTIFICATE OF SERVICE That counsel Plaintiffs hereby certifies that a true and correct copy of its NOTICE OF INTENT TO SERVE SUBPOENAS has been served on all counsel of record, by first class mail, ostage pre-paid, accordin to the Pennsylvania Rules of Civil Procedure, on the day of? _'2007. R. Mark Thomas 101 South Market Street Mechanicsburg, PA 17050 David J. Foster Costopolous, Foster & Fields 831 Market Street P.O. Box 222 Lemoyne, PA 17043-0222 Respectfully submitted, CIPF,IANI & WERNER, P.C. BY: DEI NIS J. BONETTI, ESQUIRE A ornev for the PLAINTIFFS CERTIFICATE OF SERVICE That counsel Plaintiffs hereby certifies that a true and correct copy of its CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENAS has been served on all counsel of record, by first class mail, postage pre-paid, according to the Pennsylvania Rules of Civil Procedure, on the ;2?- day of 32007. -3D R. Mark Thomas 101 South Market Street Mechanicsburg, PA 17050 David J. Foster Costopolous, Foster & Fields 831 Market Street P.O. Box 222 Lemoyne, PA 17043-0222 Respectfully submitted, & WERNER, P.C. BY: //Art' D S J. BONETTI, ESQUIRE Att fmev for the PLAINTIFFS C> r.. cn?;> -T1 <.,. 3 7 y , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION Davis Pulmonary Associates, P.C. and Stephen J. Davis, M.D., Plaintiffs CASE NUMBER: 05-3242 ISSUE NUMBER: V. Michelle A. Holtzapple and Gary Holtzapple, Defendants PLEADING: CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENAS CODE AND CLASSIFICATION: FILED ON BEHALF OF: PLAINTIFFS. COUNSEL OF RECORD: DENNIS J. BONETTI, ESQUIRE Pa. ID# 34329 ADAM L. SEIFERTH, ESQUIRE Pa. ID# 89073 CIPRIANI & WERNER, P.C. 1011 Mumma Road, Suite 201 Lemoyne, PA 17043 (717) 975-9600 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION Davis Pulmonary Associates, P.C. and Stephen J. Davis, M.D., Plaintiffs V. Michelle A. Holtzapple and Gary Holtzapple, Defendants CASE NO: 05-3242 JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENAS PURSUANT TO RULE 4009.22 As a prerequisite to service of subpoenas for documents and things pursuant to Rule 4009.22, Plaintiffs, by and through their attorneys, certifies that: (1) A notice of intent to serve the subpoenas with a copy of the subpoenas attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoenas are sought to be served, (2) a copy of the notice of intent, including the proposed subpoenas, is attached to this certificate, (3) no objections to the subpoenas has been received, and (4) the subpoenas which will be served are identical to the subpoenas which are attached to the notice of intent to serve the subpoenas. Respectfully submitted, CIPRIANI & WERNER, P.C. BY: 47 DENNIS J. BON TTI, S ADAM L. SEIFERTH, S Attorney for the Plaintif ' c IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION Davis Pulmonary Associates, P.C. and CASE NUMBER: 05-3242 Stephen J. Davis, M.D., ISSUE NUMBER: Plaintiffs V. Michelle A. Holtzapple and Gary Holtzapple, Defendants PLEADING: NOTICE OF INTENT TO SERVE SUBPOENAS CODE AND CLASSIFICATION: FILED ON BEHALF OF: PLAINTIFFS. COUNSEL OF RECORD: DENNIS J. BONETTI, ESQUIRE Pa. ID# 34329 ADAM L. SEIFERTH, ESQUIRE Pa. ID# 89073 CIPRIANI & WERNER, P.C. 1011 Mumma Road, Suite 201 Lemoyne, PA 17043 (717) 975-9600 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION Davis Pulmonary Associates, P.C. and Stephen J. Davis, M.D., CASE NO: 05-3242 Plaintiffs V. Michelle A. Holtzapple and Gary Holtzapple, Defendants JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE SUBPOENAS TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Plaintiffs intend to serve subpoenas identical to the ones that are attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned objections to the subpoenas. If no objection is made the subpoenas may be served. Respectfully submitted, CIPRIANI & WERNER, P.C. BY: DE IS J. ON TI, RE ADAM L. SEIFERTH, S DIRE Attorney for the Plainti fs COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Davis Pulmonary Associates, P.C. and Stephen J. ) CASE NO: 05-3242 Davis, M.D., ) Plaintiffs V. Michelle A. Holtzapple and Gary I-Ioltzapple, Defendants SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Records Custodian, Highmark, Inc., 1800 Center Street, Carnp Hill, PA 17011 Within twenty (20) days after the service of this subpoena, you are ordered by the court to produce the following documents or things: A complete copy of the employment file of Gary M. Holtzapple, Jr. (SSN: 166-60-0719), including, but not limited to wage records, 401K information and the complete personnel file. at: Cipriani & Werner, 1011 Mumma Road, Suite 201, Lemoyne, PA 17043 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Adam L. Seiferth, Esquire ADDRESS: 1011 Mumma Road, Suite 201 Lemoyne, PA 17043 TELEPHONE: (717) 975-9600 SUPREME COURT ID# 89073 ATTORNEY FOR: Plaintiffs BY THE COURT: Prothonotary, Civil Division Date Seal of the Court Deputy ' CERTIFICATE OF SERVICE That counsel Plaintiffs hereby certifies that a true and correct copy of its NOTICE OF INTENT TO SERVE SUBPOENAS has been served on all counsel of record, by first class mail,&stage pre-paid, acco •ding to the Pennsylvania Rules of Civil Procedure, on the day of?_ _ 2007. R. Mark Thomas 101 South Market Street Mechanicsburg, PA 17050 David J. Foster Costopolous, Foster & Fields 831 Market Street P.O. Box 222 Lemoyne, PA 17043-0222 BY: Respectfully submitted, CIPRIANI & WERNER, P.C. DENNIS J. BOM TT , E E ADAM L. SEIFERT , E QUIRE Attorney for the PL NT FFS CERTIFICATE OF SERVICE That counsel Plaintiffs hereby certifies that a true and correct copy of its CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENAS has been served on all counsel of record, by first class mail, postage pre-paid according to the Pennsylvania Rules of Civil Procedure, on the_ day of .92007. R. Mark Thomas 101 South Market Street Mechanicsburg, PA 17050 David J. Foster Costopolous, Foster & Fields 831 Market Street P.O. BOX 222 Lemoyne, PA 17043-0222 Respectfully submitted, CIPRIANI & WERNER, P. BY: DENNIS J. BONETTI, UIRE ADAM L. SEIFERTH, E QUIRE Attorney for the PLA T FS r„a C) c--? :? " '_`' ?° , C ..tip _ ?:. s =-- ("? ? ,.,?. r .. ? ,. -r, ; ' ?r _ ? ?, ? _? ?'" :;. - ? - .. rz r? =-- c>:? ,- ,...? L IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION DAVIS PULMONARY ASSOCIATES, P.C. CASE NUMBER: 2005-3242 AND STEPHEN J. DAVIS, M.D., Plaintiffs ISSUE NUMBER: V. PLEADING: MICHELLE A. HOLTZAPPLE AND GARY HOLTZAPPLE, PRAECIPE FOR WITHDRAWAL OF Defendants APPEARANCE CODE AND CLASSIFICATION: FILED ON BEHALF OF: PLAINTIFFS. COUNSEL OF RECORD: DENNIS J. BONETTI, ESQUIRE Pa. ID# 34329 CIPRIANI & WERNER, P.C. 1011 Mumma Road, Suite 201 Lemoyne, PA 17043 (717) 975-9600 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION DAVIS PULMONARY ASSOCIATES, P.C AND STEPHEN J. DAVIS, M.D., Plaintiffs CASE NO: 2005-3242 CIVIL ACTION - LAW & EQUITY V. MICHELLE A. HOLTZAPPLE AND GARY HOLTZAPPLE, Defendants JURY TRIAL DEMANDED PRAECIPE FOR WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Kindly withdraw my appearance on behalf of PLAINTIFFS, DAVIS PULMONARY ASSOCIATES, P.C. AND STEPHEN J. DAVIS, M.D., in the above captioned action. CIPRIANI & WERNER, PC BY: DENNIS . ONE , E QUIRE Attorney for the Pl ' ti s CERTIFICATE OF SERVICE That counsel for the PLAINTIFFS hereby certifies that a true and correct copy of its PRAECIPE FOR WITHDRAWAL OF APPEARANCE has been served on all counsel of record, by first class mail, postage pre-paid, according to the Pennsylvania Rules of Civil Procedure, on the 2 fC day of 2008. David J. Foster, Esquire Costopolous, Foster & Fields 831 Market Street P.O. Box 222 Lemoyne, PA 17043-0222 R. Mark Thomas, Esquire 101 South Market Street Mechanicsburg, PA 17050 Respectfully submitted, CIPRIANI & WERNER, P.C. BY: Ll L,)4 I DENNIS J. B N I SQUIRE Counsel for the P a' iffs C? c?.a ? ,? c -? , ?=' c.,.. rr- .u ? ;??, ?? ?.. ' c i rr .`4; ??,? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION DAVIS PULMONARY ASSOCIATES, P.C. CASE NUMBER: 2005-3242 AND STEPHEN J. DAVIS, M.D. Plaintiffs, ISSUE NUMBER V. PLEADING: MICHELLE A. HOLTZAPPLE AND GARY PRAECIPE FOR ENTRY OF HOLTZAPPLE APPEARANCE Defendants. CODE AND CLASSIFICATION: FILED ON BEHALF OF: PLAINTIFFS. COUNSEL OF RECORD: ANTHONY P. TABASSO, ESQUIRE PA. ID# 80851 Klehr, Harrison, Harvey, Branzburg & Ellers LLP 260 S. Broad Street, &h Floor Philadelphia PA 19102-5003 215-568-6060 PHIL1 794437-1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION DAVIS PULMONARY ASSOCIATES, P.C. AND STEPHEN J. DAVIS, M.D. Plaintiffs, CASE NUMBER: 2005-3242 V. MICHELLE A. HOLTZAPPLE AND GARY HOLTZAPPLE Defendants. CIVIL ACTION - LAW & EQUITY JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of PLAINTIFFS, DAVIS PULMONARY ASSOCIATES, P.C. AND STEPHEN J. DAVIS, M.D., in the above-captioned action. [SON, HARVEY, & ELL LLP o IfLA A 1n By: IfivVc ony P. abasso, Esquire Attorney f Plaintiffs PHIL 1794437- t CERTIFICATE OF SERVICE I, Anthony P. Tabasso, Esquire hereby certify that on this -,- day of July, 2008, I served a true and correct copy of our Entry of Appearance via regular U.S. Mail upon the following: David J. Foster, Esqurie Costopolous, Foster & Fields 831 Market Street P.O. Box 222 Lemoyne, PA 17043-0222 R. Mark Thomas, Esquire 101 South Mar Mechanicsburg PHILI 794437-1 N te 7 r ,, ? r-- rt?.:n G' krD a , a+? I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION DAVIS PULMONARY ASSOCIATES, P.C. CASE NUMBER: 2005-3242 OR1011Y41 AND STEPHEN J. DAMS, M.D. Plaintiffs, V. MICHELLE A. HOLTZAPPLE AND GARY HOLTZAPPLE Defendants. MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST MICHELE HOLTZAPPLE Plaintiffs Davis Pulmonary Associates, PC ("DPA") and Steven J. Davis, M.D., ("Dr. Davis") (DPA and Dr. Davis are hereafter jointly referred to as, "Davis") hereby move this honorable Court for partial summary judgment against Defendant Michele Holtzapple. Plaintiffs aver: FACTUAL BACKGROUND Ms. Holtzapple's Work History With Davis 1. Plaintiffs commenced this action on February 2, 2006 by filing a complaint against the defendants alleging that the defendants stole certain funds from Plaintiff and committed fraud, breaches of employment contract, breaches of fiduciary duty and were unjustly enriched. A copy of the Davis Complaint is attached hereto as Exhibit "A." 2. DPA, is a medical practice, which is owned by plaintiff Dr. Davis. On February 2, 1993, Dr. Davis hired defendant Michelle Holtzapple as a bookkeeper and office manager. (Compl. T 8-9). Until December 2002, Ms. Holtzapple's responsibilities included regularly paying Davis' outstanding bills. (Compl. T 10) These payments were made from Davis' business PH1L1 817215-2 1 1 bank account at the Pennsylvania State Bank. (Compl. ¶ 10). Dr. Davis never authorized her to use Davis' funds for her own personal expenses or household needs. (Compl. ¶ 11). 3. In or around December 2002, Dr. Davis was advised by his accountant to ban Ms. Holtzapple from paying Davis' bills. Unfortunately, despite being prohibited from paying bills, and unbeknownst to Dr. Davis, Ms. Holtzapple continued to make withdrawals from Davis' account to pay for her personal and household expenses. (Compl. ¶ 14). 4. Over the course of her tenure, Ms. Holtzapple stole at least $315,778.79 of Davis' funds to pay for her personal and household expenses. Id. She actively concealed these transactions from Davis. Id. at ¶15. When Dr. Davis initially confronted her, Ms. Holtzapple concealed her actions and denied knowledge and culpability for the missing funds. (Compl. ¶ 16). 5. On March 18, 2005, Davis terminated Ms. Holtzapple's employment based upon her embezzlement and Dr. Davis then filed a police report concerning Ms. Holtzapple's theft. A copy of the police report is attached hereto as Exhibit "B." As indicated in the police report and the complaint, Ms. Holtzapple's actions cost Davis $315,778.79 in direct damages and an additional $17,996.02 in consequential damages, not including attorneys' fees. See Complaint Exhibit "A." 6. Ms. Holtzapple, with whom Dr. Davis and DPA reasonable trusted as the office manager and bookkeeper, stole $315,778.79. The Affidavit of Stephan Davis, M.D., hereafter the Davis Aff., is attached hereto as Exhibit "C." Davis Aff. ¶2. As a direct result of her active concealment and the theft of the funds, Davis incurred an additional $17,996.02 in consequential damages so that it could complete an accounting of its funds, change its locks and temporarily staff the doctor's office. Id. at ¶9. 2 PHIL I 817215-2 . '% Ms. Holtzapple Pleads Guilty to Theft 7. On October 18, 2005, Ms. Holtzapple pled guilty to theft by deception in connection with her actions described above. (Compl. 126). In connection with her plea, she testified that she was guilty of theft by deception because she stole money from DPA and took it with the intent to deprive DPA of it permanently. October 18, 2005 Trial Transcript of Michele Holtzapple, 2:10-3:18 (hereafter referred to as the Holtzapple Tr.) A copy of the Michele Holtzapple Transcript is attached hereto as Exhibit "D." 8. On January 10, 2006, in Commonwealth v. Michelle A. Holtzapple, CP-21-CR- 1542-2005 and in connection with the charge of theft by deception, the Honorable J. Bayley entered an Order sentencing Michelle Holtzapple to a period of 60 months of restrictive intermediate punishment with one year to be served in the Work Release Program in the Cumberland County Prison to which she was committed. A copy of the January 10, 2006 Court Order is attached hereto as Exhibit "E." Ms. Holtzapple was further ordered to pay the costs of prosecution and to pay remaining restitution to Dr. Davis in the amount of $145,429.22. 9. According to Ms. Holtzapple, before being ordered to pay restitution, she repaid Davis $150,000.00, a fact which Davis does not dispute. (Compl. ¶ 27; Holtzapple Tr. at 4:1-3). 10. She has also paid an additional $18,904.24 in court ordered restitution, leaving a principal balance of $146,874.55 still outstanding to Davis. Davis Aff. ¶11. Davis Sues Ms. And Mr. Holtzapple 11. On February 2, 2006, Davis initiated this action against Ms. Holtzapple and her husband, Gary Holtzapple, in Pennsylvania State Court, Cumberland County, Docket No. 05- 3242, alleging that her actions, and Mr. Holtzapple's actions constituted Fraud, Conversion, 3 PHIL! 817215-2 , L' , a Breach of Fiduciary Duty, Breach of Employment Contract, Fraudulent Transfer, Breach of Implied Contract, Constructive Trust and Unjust Enrichment. 12. In total, the complaint seeks $161,778.79, interest on the stolen funds and $17,996.02 in damages against the Defendants jointly and severally.' See Compl. 13. On June 12, 2006, Ms. Holtzapple answered the Complaint. A copy of Ms. Holtzapple's answer to the complaint is attached hereto as Exhibit "F." In her answer, she admitted to (a) taking the money and committing fraudulent actions that were outrageous, and committed in bad faith without any regard for Davis' rights. (Ms. Holtzapple Answer ¶ 22); (b) without authority, privilege, or legal justification to do so, and until her employment was terminated, drawing checks against Davis' bank account at Pennsylvania State Bank for her and her husband's personal expenses. Id. at ¶14; (c) converting Davis' funds; (4) concealing her actions from Davis. Id. at ¶ 17; causing Davis to lose money. Id. at ¶ 23; and pleading guilty to theft by deception on October 18, 2005. Id. at ¶ 27. 14. Despite her admissions in connection with the guilty plea and contained in her Answer to the complaint, Ms. Holtzapple denied that she owes Davis the amount of money stated in the Complaint. She did not reveal whether she conducted any investigation, reasonable or otherwise, into the truth of the allegations concerning the amount of money that she stole from Davis. 1 The figure in the Complaint has not been offset by the additional restitution that Ms. Holtzapple has paid since the complaint was filed. Accordingly, Davis is now owed $146,874.55 of principal, plus $17,996.02 in consequential damages and interest in the amount of $112,052.71. 4 PHIL] 817215-2 I I , a6 i e LEGAL ARGUMENT A. LEGAL STANDARD 15. Rule 1035.2 governs summary judgment practice. Rule 1035.2 states: After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law. (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report. 16. The moving party bears the burden of proving that judgment as a matter of law is appropriate. Butterfield v. Giuntoli. 670 A.2d 646, 651 (Pa. Super. 1995), appeal denied, 683 A.2d 875 (Pa. 1996). Pennsylvania law provides that summary judgment may be granted in cases where the record clearly shows that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. Capek v. Devito, 767 A.2d 1047, 1048, no. 1 (Pa. 2001). The moving party has the burden of proving that no genuine issues of material fact exist. Rush v. Philadelphia Newspapers, Inc., 732 A.2d 648, 650 (Pa. Super. 1999). 17. In determining whether to grant summary judgment, the trial court must review the record in the light most favorable to the non-moving party and must resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Potter v. Herman, 762 A.2d 1116, 1117-18 (Pa. Super. 2000). Summary judgment is proper when the allegations in the pleadings, depositions, answers to interrogatories, admissions of record, and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. Id. at 1117. 5 PHIL1 817215-2 I I L J. I . 18. According to the explanatory note to Pa.R.C.P. 1035.2 summary judgment is proper when ...the record contains insufficient evidence of facts to make out a prima facie cause of action or defense and, therefore, there is no issue to be submitted to a jury. To defeat this motion, the adverse party must come forward with evidence showing the existence of the facts essential to the cause of action or defense. Pa.R.C.P. 1035.2 (Explanatory Comment). B. PLAINTIFFS ARE ENTITLED TO SUMMARY JUDGMENT AGAINST MS. HOLTZAPPLE 19. Here, as the record and the attached Exhibits make clear, there is no factual dispute that Ms. Holtzapple converted Davis' funds, committed fraud, and was unjustly enriched at Davis' expense. Summary judgment is appropriate because Ms. Holtzapple admits that she worked for DPA as the bookkeeper, she stole Davis' funds, she had no intention to return it and she concealed these actions from Dr. Davis and DPA. Furthermore, Ms. Holtzapple plead guilty to theft by deception in connection with her actions and was sentenced to sixty (60) months of intermediate punishment. Accordingly, summary judgment is appropriate against Ms. Holtzapple. Ms. Holtzapple's Guilty Plea May Be Used Against Her in A Subsequent Civil Proceeding 20. In Pennsylvania, a court may use a guilty plea in criminal proceeding in the subsequent civil proceeding if the defendant was sentenced in connection with the plea. Generally, in criminal proceedings, there is a process when a sentence is imposed on a defendant. Warren County v. Carlson, 418 A.2d 810, 813 (Pa. Commw. Ct 1980). The sentencing is a judgment from which an appeal does lie, and "in those circumstances, where permitted by law, the judgment may be introduced in subsequent proceedings." Id. 21. Ms. Holtzapple does not, and cannot dispute that she knowingly plead guilty to theft by deception and was sentenced to spend time in jail. See Court Order Ex. "E." During 6 PHIL I 817215-2 1 0 1 1) 1 her sentencing hearing, Ms. Holtzapple affirmed that she unlawfully and intentionally took Davis' money with the intention to keep it. See Hearing Transcript Ex. "D." Accordingly, the plea establishes that there is no genuine issue of fact concerning: (1) she stole money from Davis; (2) she had no intentions of giving it back; (3) she hid her actions from Davis; and (4) Davis did not permit her to take the funds for personal use or otherwise. Thus, there is no genuine issue of fact and summary judgment is appropriate Ms. Holtzapple Converted Davis's Property. 22. In Pennsylvania, it is a crime for a person to unlawfully take the property of another. Theft by deception is codified in Pennsylvania: theft by deception occurs when a person (1) intentionally obtains or withholds property (2) of another (3) by deception. 18 Pa CSA § 3922(a). Deception occurs when a person: creates a false impression, as to law, value, intention or other state of mind; prevents someone from acquiring information that affects their judgment of a transaction; or fails to correct a false impression that the deceiver previously created or reinforced or that the deceiver knows was influencing the other to whom he or she has a fiduciary or confidential relationship with. Id. Theft by deception is also considered an enlargement of the former Pennsylvania crime-fraudulent conversion. Id. Commonwealth v. Patterson, 390 A.2d 784, 788 (Pa Super Ct 1978). 23. Conversion is "the deprivation of another's right of property in, or use or possession of, a chattel, or other interference therewith, without the owner's consent and without lawful justification." Pioneer Commer. Funding Corp. v. Am. Fin. Mortg Corp., 855 A.2d 818, 827 (Pa 2004). Identifiable funds are considered to be chattel for purposes of conversion. Id. When such an act occurs, the plaintiff may bring suit if he had an immediate right to possession 7 PHILI 817215-2 . , . ', I . of the chattel at the time it was converted. Potts Run Coal Co. v. Benjamin Coal Co., 426 A.2d 1175, 1178 (Pa Super Ct. 1981). 24. Ms. Holtzapple plead guilty to theft by deception of Davis' funds, which is the unlawful taking of the property of another with an intent to deceive. Answer ¶15; 18 Pa CS 3922(a). Incorporated in this crime, which is an enlargement of the former crime of fraudulent conversion, is the taking of another's property without consent or lawful justification, which are the elements of civil conversion. 25. Because Ms. Holtzapple was sentenced and plead guilty to unlawfully taking Davis' funds, with the intent to deceive Davis, she has necessarily converted those same funds. Further, in Ms. Holtzapple's answer to the complaint, she admits that she converted Davis' funds with the intent to deceive Davis. Answer, ¶14-17. Accordingly, Davis is entitled to judgment in their favor and against Ms. Holtzapple. Ms. Holtzapple's Intentional Concealment of Her Actions Constitutes Fraud. 26. Under Pennsylvania law, fraud contains the following elements: (1) a representation or omission; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance. Gibbs v. Ernst, 647 A.2d 882, 889 (Pa 1994). Under this standard, there is no doubt that Ms. Holtzapple is liable to the Plaintiffs here. 27. Ms. Holtzapple has admitted that she was responsible for maintaining the books and records for DPA and paying the bills of DPA from its bank account. Answer, ¶9. Ms. Holtzapple admitted to taking Davis' funds and to committing the crime of theft by deception, 8 PHIL) 817215-2 which is defined as the unlawful taking of the property of another with intent to deceive. Answer, ¶15; 18 Pa CS 3922(a); Court Order, Ex. "E." 28. Ms. Holtzapple's actions, whereby she intentionally hid from Davis that she was taking DPA's money and using it for her own personal expenses is fraud. It is not disputed that as the bookkeeper and the person responsible for paying the bills of DPA, Ms. Holtzapple had access to DPA's bank account and money. 29. There is also no dispute that she intentionally and knowingly hid her actions from Dr. Davis by misrepresenting the accounting books and by failing to disclose that she was using DPA's funds for personal reasons. See Answer, ¶14-17, Davis Af£, ¶ 7. Davis relied upon Ms. Holtzapple to pay the bills of DPA and to not use these funds for personal reasons. Davis Aff., ¶3. As a consequence of Ms. Holtzapple's actions, Davis was injured, and $146,874.55 is still due and outstanding in principal. Id. at ¶ 11. Accordingly Ms. Holtzapple is liable for fraud. Ms. Holtzapple was Unjustly Enriched By Unlawfully Taking Davis's Money. 30. In Pennsylvania, a person has been unjustly enriched when: (1) the plaintiff has conferred a benefit on defendant; (2) defendant appreciates the benefit; and (3) defendant accepts and retains the benefit under such circumstances that it would be inequitable for defendant to do so. Pollack v. Skinsmart Dermatology and Aesthetic Center P.C., 2004 WL 2426331, 02167 Sept. Term 2002, *4 (Pa Ct Commn Pleas, Phila 2004)(quoting Mitchell v. Moore. 729 A.2d 1200, 1203 (Pa. Super. 1999)). 31. Ms. Holtzapple used $315,778.79 of her employer's funds for personal matters. These funds were paid from DPA's bank account and paid directly to Ms. Holtzapple. Compl., ¶14 and Answer, ¶14. Indeed, Ms. Holtzapple used these funds for her personal expenses. Answer, ¶14. As stated in her guilty plea and in her answer to the complaint, she retained these 9 PHILI 817215-2 funds without the intention of giving them back to Davis. Accordingly, Ms. Holtzapple has been unjustly enriched by her use of Davis' funds at the expense of Davis. Therefore, the Court should order Ms. Holtzapple to repay these funds to Davis. Ms. Holtzapple Cannot Deny the Amount of Money that She Took From Davis. 32. In spite of the fact that Ms. Holtzapple claims that she is without information sufficient to form a belief as to the amount of money that she took from Dr. Davis, this Court may still award Davis $146,874.55 in damages. Ms. Holtzapple cannot respond that she is without knowledge, when, in fact, it is clear that she has knowledge. In Pennsylvania, a defendant may not answer that she is without knowledge or information sufficient to form a belief as to the truth of an averment if, in fact, it is clear that she knows whether an allegation is true or false. Cercone v. Cercone, 386 A 2d 1, 4-5 (Pa Super. Ct 1978). In that situation, that denial is an admission. Id. 33. Here, the amount of money that Ms. Holtzapple took from Davis and repaid pursuant to court ordered restitution is a figure that she, better than any other person, must know. She admitted to taking Davis money with the intent to keep it. She cannot deny the amount of money that she took from Davis by stating that she is without sufficient knowledge to form the basis of an opinion. See id. After all, Ms. Holtzapple admits that she wrote the checks from Davis' accounts for her personal benefit and she maintained Davis' books. Conspicuously missing from her answer to this allegation of the complaint is whether she conducted any investigation to determine the amount of money that she took from, and still owed Davis. Furthermore, she has not come forward with any evidence to dispute the amount of money that Davis asserted in the Complaint. Accordingly, her infirmed denial of a fact that she already 10 PHIL1 817215-2 . , . I0 1 . knows the answer to is deemed an admission, and she owes Davis $146,874.55 in principal amount, $17,996.02 in consequential damages and interest as claimed in the Complaint. 34. Davis is entitled to pre judgment interest in the amount of $112,052.71. In Pennsylvania, it is well settled that a defendant who has been unjustly enriched at the expense of the plaintiff must make restitution. Sack v. Feinman, 432 A.2d 971, 974 (Pa. 1981) The defendant must make restitution, which includes interest on the principal amount, if the receipt and retention of the interest amount are such that, as between the two parties, it would be unjust for the recipient to retain the benefit. Here, there can be no argument that Ms. Holtzapple retained the benefit of the use and enjoyment of the funds she stole. Accordingly, Davis seeks entry of judgment against Ms. Holtzapple in the amount of $276,923.28. WHEREFORE, Plaintiffs Davis Pulmonary Associates, P.C. and Dr. Stephen Davis. respectfully requests that this honorable Court enter partial summary judgment in their favor and against Michele Holtzapple, in the amount of $146,874.55, 17,996.75 in consequential damages, plus interest in the amount of $112,052.71, together with such other relief as this Court deems just. :ISON, HARVEY, & ELLERS LLP By: AFAony P Tabasso, Esquire Randolph /C. Reliford, Esquire 260 S. Broad Street Philadelphia, PA 19102 (215) 569-4397 Attorneys for Plaintiffs 11 PHILI 817215-2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION DAVIS PULMONARY ASSOCIATES, P.C. CASE NUMBER: 2005-3242 AND STEPHEN J. DAVIS, M.D. Plaintiffs, V. MICHELLE A. HOLTZAPPLE AND GARY HOLTZAPPLE Defendants. MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST MICHELE HOLTZAPPLE Plaintiffs Davis Pulmonary Associates, PC ("DPA") and Steven J. Davis, M.D., ("Dr. Davis") (DPA and Dr. Davis are hereafter jointly referred to as "Davis") hereby file this memorandum of law in support of their motion for partial summary judgment against Defendant Michele Holtzapple. 1. RELEVANT FACTS AND PROCEDURAL HISTORY Ms. Holtzapple's Work History With Davis Plaintiffs commenced this action on February 2, 2006 by filing a complaint against the defendants alleging that the defendants stole certain funds from Plaintiff and committed fraud, breaches of employment contract, breaches of fiduciary duty and were unjustly enriched. A copy of the Davis Complaint is attached hereto as Exhibit "A." DPA, is a medical practice, which is owned by plaintiff Dr. Davis. On February 2, 1993 Dr. Davis hired defendant Michelle Holtzapple as a bookkeeper and office manager. Compl., ¶ 8-9. Until December 2002, Ms. Holtzapple's responsibilities included paying Davis' outstanding bills. These payments were made from Davis' business bank account at the Pennsylvania State PH1L1 817215-2 . . . ey , . Bank. Compl., ¶ 10. Dr. Davis never authorized Ms. Holtzapple to use Davis' funds for her own personal expenses or household needs. (Compl. ¶ 11). In or around December 2002, Dr. Davis was advised by his accountant to ban Ms. Holtzapple from paying Davis' bills. Unfortunately, despite being prohibited from paying bills, and unbeknownst to Dr. Davis, Ms. Holtzapple continued to make withdrawals from Davis' account to pay for her personal and household expenses. Compl., ¶ 14. Over the course of her tenure, Ms. Holtzapple stole at least $315,778.79 of Davis' funds to pay for her personal and household expenses. Id. She actively concealed these transactions from Davis. Id. at 115. When Dr. Davis initially confronted her, Ms. Holtzapple concealed her actions and denied knowledge and culpability for the missing funds. Compl. ¶ 16. On March 18, 2005, Davis terminated Ms. Holtzapple's employment based on her embezzlement and Dr. Davis then filed a police report concerning Ms. Holtzapple's theft. A copy of the police report is attached hereto as Exhibit "B." As indicated in the police report and the complaint, Ms. Holtzapple's actions cost Davis $315,778.79 in direct damages and an additional $17,996.02 in consequential damages, not including attorneys' fees. See Compl. Exhibit "A." Ms. Holtzapple, with whom Dr. Davis and DPA reasonable trusted as the office manager and bookkeeper, stole $315,778.79 while Dr. Davis was battling cancer and after he had hip replacement surgery. The Affidavit of Stephan Davis, M.D., hereafter the Davis Aff., is attached hereto as Exhibit "C." Davis Aff. ¶2-6. Moreover, Ms. Holtzapple actively concealed this theft from Dr. Davis by lying to Mr. Davis, making duplicate entries in the books and records of DPA and doctoring the bank statements. Id. at ¶5, 7. As a direct result of her active concealment and the theft of the funds, Davis incurred an additional $17,996.02 in consequential damages so that it could complete an accounting of its funds, change its locks and temporarily 2 PHIL1 817215-2 f4 1 staff the doctor's office. Id. at ¶7. Accordingly, $146,874.55 in principal is due and payable. Id. at¶11. 2. Ms. Holtzapple Pleads Guilty to Theft On October 18, 2005, Ms. Holtzapple pled guilty to theft by deception in connection with her actions described above. (Compl. ¶ 26). In connection with her plea, the following testimonial exchange took place between Ms. Holtzapple, the Court and Mr. John Dailey, Assistant District Attorney for the Commonwealth of Pennsylvania: MR. DAILEY:... Facts. The defendant was an office manager for a Davis Pulmonary Associates, a medical practice located in East Pennsboro Township. As manager, the defendant had access and authorization to write checks to pay for the practice's bills. Since starting in the year 2000 and continuing through March of 2005, the defendant systematically wrote checks on the practice's account to pay her own personal debt without permission or authorization of Dr. Davis who was battling cancer and related health problems during this time frame. The defendant was taking money from the practice to pay a personal City Bank Discovery and other credit card bills that she had run up. Since January 18th or 2000 until March of 2005, the defendant averaged taking $5,000.00 a month, for a total of $315,000.00 from the practice's account, and used that money for her own personal gain. THE COURT: Does your client wish to plead guilty as indicated? DEFENDANT'S ATTORNEY: Yes, Your Honor. THE COURT: It is a felony of the third degree. The maximum penalty is seven years imprisonment and a fine. Sentencing is at my discretion. If you stole this money, took it with the intent to deprive the true owner of it permanently, that is theft by deception. Do you admit you committed the offense? THE DEFENDANT: Yes, sir. October 18, 2005 Trial Transcript of Michele Holtzapple, 2:10-3:18 (hereafter referred to as the Holtzapple Tr.) A copy of the Michele Holtzapple Transcript is attached hereto as Exhibit "D." 3 PHILI 817215-2 I# , f, . . Accordingly, on January 10, 2006, in Commonwealth v. Michelle A. Holtzapple, CP-21- CR-1542-2005 and in connection with the charge of theft by deception, the Honorable J. Bayley entered an Order sentencing Michelle Holtzapple to a period of 60 months of restrictive intermediate punishment with one year to be served in the Work Release Program in the Cumberland County Prison to which she was committed. A copy of the January 10, 2006 Court Order is attached hereto as Exhibit "E." According to Ms. Holtzapple, she repaid plaintiff $150,000 (a fact which Davis does not dispute). Compl. ¶ 27; Holtzapple Tr. at 4:1-3). Ms. Holtzapple was further ordered to pay the costs of prosecution and to pay remaining restitution to Dr. Davis. See Exhibit "E." She has paid $18,904.24 in restitution. $146,874.55 still remains due and owing. Davis Aff. ¶11. 3. Davis Sues Ms. And Mr Holtzapple On February 2, 2006, Davis initiated the instant action against Ms. Holtzapple and her husband Gary Holtzapple in Pennsylvania State Court, Cumberland County, Docket No. 05- 3242, alleging the following: Count I Fraud - Davis v. Ms. Holtzapple Count II Conversion - Davis v. Ms. Holtzapple Count III Breach of Fiduciary Duty - Davis v. Ms. Holtzapple Count IV Reach of Employment Contract - Davis v. Ms. Holtzapple Count V Fraudulent Transfer (12 Pa.C.S.A. 5101) - Davis v. Mr. and Ms. Holtzapple Count VI Breach of Implied Contract - Davis v. Ms. Holtzapple Count VII Constructive Trust - Davis v. Ms. Holtzapple Count VIII Unjust Enrichment - Davis v. Ms. Holtzapple Count IX Constructive Trust - Davis v. Mr. Holtzapple Count X Unjust Enrichment - Davis v. Mr. Holtzapple 4 PHIL 1817215-2 I . ! 1 , . In total, the complaint seeks $161,778.79 and $17,996.02 in damages against the Defendants jointly and severally. 1 See Compl. The following is a list of damages incurred by Plaintiff per year: 2000 $59,346.35 2001 $67,552.69 2002 $45,583.62 2003 $53,360.80 2004 $72,835.76 2005 $17,100.57 See Compl. Exhibit "A" On June 12, 2006, Ms. Holtzapple answered the Complaint. A copy of Ms. Holtzapple's answer to the complaint is attached hereto as Exhibit "F." In her answer, she admitted to taking the money and committing fraudulent actions that were outrageous, and committed in bad faith without any regard for Davis' rights. Answer, ¶22. She admitted that she, without authority, privilege, or legal justification to do so, and until her employment was terminated, drew checks against Davis' bank account at Pennsylvania State Bank for her and her husband's personal expenses. Id. at ¶14. She further admitted that she converted Davis' funds and that she concealed her actions from Davis. Id. at ¶ 17. She further admitted that her actions caused Davis to lose money. Id. at ¶ 23. Lastly, she admitted that she plead guilty to theft by deception on October 18, 2005. Id. at ¶ 27. Despite her admissions in connection with the guilty plea and contained in her Answer to the complaint, Ms. Holtzapple denied that she owes Davis the amount of money stated in the Complaint. Interestingly, though in multiple paragraphs in her Answer she states that she has conducted a reasonable investigation into the truth of the allegations contained in certain parts of ' The figure in the Complaint has not been offset by the additional restitution that Ms. Holtzapple has paid since the complaint was filed. Accordingly, Davis is now owed $146,874.55 of principal, plus $17,996.02 in consequential damages and interest in the amount of $112,051.72. 5 PHIL 1817215-2 . , , f. . the Complaint, Ms. Holtzapple simply pleads that she is without knowledge or information sufficient to form a belief as to the amount that she stole. She did not reveal whether she conducted any investigation, reasonable or otherwise, into the truth of the allegations concerning the amount of money that she stole from Davis. II. LEGAL STANDARD a. Legal Argument Rule 1035.2 governs summary judgment practice. Rule 1035.2 states: After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law. (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report. The moving party bears the burden of proving that judgment as a matter of law is appropriate. Butterfield v. Giuntoli. 670 A.2d 646, 651 (Pa. Super. 1995), appeal denied, 683 A.2d 875 (Pa. 1996). Pennsylvania law provides that summary judgment may be granted in cases where the record clearly shows that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. Capek v. Devito, 767 A.2d 1047, 1048, no. 1 (Pa. 2001). The moving party has the burden of proving that no genuine issues of material fact exist. Rush v. Philadelphia Newspapers, Inc., 732 A.2d 648, 650 (Pa. Super. 1999). In determining whether to grant summary judgment, the trial court must review the record in the light most favorable to the non-moving party and must resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Potter v. Herman, 762 A.2d 1116, 1117-18 (Pa. Super. 2000). Summary judgment is proper when the allegations in the pleadings, depositions, answers to interrogatories, admissions of record, and submitted affidavits 6 PHILI 817215-2 a I demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. Id. at 1117. According to the explanatory note to Pa.R.C.P. 1035.2 summary judgment is proper when ...the record contains insufficient evidence of facts to make out a prima facie cause of action or defense and, therefore, there is no issue to be submitted to a jury. To defeat this motion, the adverse party must come forward with evidence showing the existence of the facts essential to the cause of action or defense. Pa.R.C.P. 1035.2 (Explanatory Comment). b. Plaintiffs Are Entitled to Summary Judgment Against Ms. Holtzapple Here, as the record and the Exhibits attached hereto make clear, there is no factual dispute that Ms. Holtzapple converted Davis' funds, committed fraud, and was unjustly enriched at Dr. Davis' expense. Summary judgment is appropriate because Ms. Holtzapple admits that she worked for DPA as the bookkeeper, she stole Davis' funds, she had no intention to return it and she concealed these actions from Dr. Davis and DPA. Furthermore, Ms. Holtzapple plead guilty to theft by deception in connection with her actions and was sentenced to sixty (60) months of intermediate punishment. Accordingly, summary judgment is appropriate against Ms. Holtzapple. 2. Michele Holtzannle's Guilty Plea Is Sufficient Proof of the Her Liabiliv In Pennsylvania, a court may use a guilty plea in criminal proceeding in the subsequent civil proceeding if the defendant was sentenced in connection with the plea. Generally, in criminal proceedings, there is a process when a sentence is imposed on a defendant. Warren County v. Carlson, 418 A.2d 810, 813 (Pa. Commw. Ct 1980). First, there is a plea of guilty, a plea of nolo contendere or a conviction by a judge or jury. Id. "The prevailing law is that there is no right of appeal from a plea or a conviction and neither a plea nor a conviction are admissible 7 PHIL] 817215-2 . . r. , . in subsequent proceedings for the obvious reason that a plea may be withdrawn at any time prior to sentence or a conviction set aside." Id. However, the plea or conviction may be used in subsequent proceedings, after the sentence is imposed. Id. The sentencing is a judgment from which an appeal does lie, and "in those circumstances, where permitted by law, the judgment may be introduced in subsequent proceedings." Id. Ms. Holtzapple does not, and cannot, dispute that she knowingly plead guilty to theft by deception and was sentenced to spend time in jail. See Court Order Exhibit. "E." During her sentencing hearing, Ms. Holtzapple affirmed that she unlawfully and intentionally took Davis' money with the intention to keep it. See Hearing Transcript Exhibit "D." Accordingly, the plea establishes that there is no genuine issue of fact concerning: (1) she stole money from Davis; (2) she had no intentions of giving it back; (3) she hid her actions from Davis; and (4) Davis did not permit her to take the funds for personal use or otherwise. Thus there is no genuine issue of fact that Ms. Holtzapple is liable to Plaintiffs for damages caused by her embezzlement. 3. Ms. Holtzapple Converted Davis's Property. In Pennsylvania, it is a crime for a person to unlawfully take the property of another. Theft by deception is codified in Pennsylvania: theft by deception occurs when a person (1) intentionally obtains or withholds property (2) of another by (3) deception. 18 Pa CSA § 3922(a). Deception occurs when a person: creates a false impression, as to law, value, intention or other state of mind; prevents someone from acquiring information that affects their judgment of a transaction; or fails to correct a false impression that the deceiver previously created or reinforced or that the deceiver know was influencing the other to whom he or she has a fiduciary or confidential relationship with. Id. To be considered deception, the deception must be of pecuniary significance and may not be "puffery" Id. at (b). The offense of theft by deception was 8 PHIL] 817215-2 I • 1 4, . . created in large part to criminalize the practice of taking people's money with a facade of good intentions and the actual intent never to perform the promised services. Commonwealth v. Patterson, 390 A.2d 784, 788 (Pa Super Ct 1978). Theft by deception is also considered an enlargement of the former Pennsylvania crime fraudulent conversion. Id. Conversion is "the deprivation of another's right of property in, or use or possession of, a chattel, or other interference therewith, without the owner's consent and without lawful justification." Pioneer Commer. Funding Corp. v. Am. Fin. Mortg. Corp., 855 A.2d 818, 827 (Pa 2004). Identifiable funds are considered to be chattel for purposes of conversion. Id. When such an act occurs, the plaintiff may bring suit if he had an immediate right to possession of the chattel at the time it was converted. Potts Run Coal Co. v. Benjamin Coal Co., 426 A.2d 1175, 1178 (Pa Super Ct. 1981). Ms. Holtzapple plead guilty to theft by deception of Davis' funds, which is the unlawful taking of the property of another with an intent to deceive. Answer, ¶15; 18 Pa CS 3922(a). Incorporated in this crime, which is an enlargement of the former crime of fraudulent conversion, is the taking of another's property without consent or lawful justification, which are the elements of civil conversion. Because Ms. Holtzapple was sentenced and plead guilty to unlawfully taking Davis' funds, with the intent to deceive Davis, she has necessarily converted those same funds. Further, in Ms. Holtzapple's answer to the complaint, she admits that she converted Davis' funds with the intent to deceive Davis. Answer, 114-17. Accordingly, Davis is entitled to judgment in their favor and against Ms. Holtzapple. 9 PHIL) 817215-2 . . . r. , . 4. Ms. Holtzapple's Intentional Concealment of Her Actions Constitutes Fraud. Under Pennsylvania Law, fraud contains the following elements: (1) a representation or omission; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance. Gibbs v. Ernst, 647 A.2d 882, 889 (Pa 1994). Under this standard, there is no doubt that Ms. Holtzapple is liable to Plaintiffs here. Ms. Holtzapple has admitted that she was responsible for maintaining the books and records for DPA and paying the bills of DPA from its bank account. Answer, $9. Ms. Holtzapple admitted to taking Davis' funds and to committing the crime of theft by deception, which is defined as the unlawful taking of the property of another with an intent to deceive. Answer, $15; 18 Pa CS 3922(a); Court Order, Exhibit "E." Ms. Holtzapple's actions, whereby she intentionally hid from Davis that she was taking DPA's money and using it for her own personal expenses is fraud. It is not disputed that as the bookkeeper and the person responsible for paying the bills of DPA, Ms. Holtzapple had access to DPA's money. There is also no dispute that she hid her actions from Dr. Davis by misrepresenting the accounting books and by failing to disclose that she was using DPA's funds for personal reasons and by explicitly lying to Dr. Davis. See Answer $14-17, Davis Affidavit, $5, 7. Davis relied upon Ms. Holzapple to pay the bills of DPA and to not use these funds for her personal benefit. Davis Aff., $ 2-3. As a consequence of Ms. Holtzapple's actions, Davis was injured, and $146,874.55 is still due and outstanding. Id. at $ 11. Accordingly Ms. Holtzapple is guilty of fraud. 10 PHILI 817215-2 5. Ms Holtzapple was Unjustly Enriched By Unlawfully Taking Davis's Money. In Pennsylvania, a person has been unjustly enriched when: (1) the plaintiff has conferred a benefit on defendant; (2) defendant appreciates the benefit; and (3) defendant accepts and retains the benefit under such circumstances that it would be inequitable for defendant to do so. Pollack v. Skinsmart Dermatology and Aesthetic Center P.C., 2004 WL 2426331, 02167 Sept. Term 2002, *4 (Pa Ct Commn Pleas, Phila 2004)(quoting Mitchell v. Moore, 729 A.2d 1200, 1203 (Pa. Super. 1999)). The facts of the case mandate a finding of unjust enrichment. Ms. Holtzapple used $315,778.79 of her employer's funds for personal matters. These funds were paid from DPA's bank account and paid directly to Ms. Holtzapple. Compl., ¶14 and Answer, ¶14. Indeed, Ms. Holtzapple used these funds for her personal expenses. Answer, ¶14. As stated in her guilty plea and in her answer to the complaint, she retained these funds without the intention of giving them back to Davis. Accordingly, Ms. Holtzapple has been unjustly enriched by her use of Davis' funds at the expense of Davis. Therefore, the Court should order Ms. Holtzapple to repay these funds with interest to Davis. 6. Ms. Holtzgpl2le Cannot Deny the Amount of Money that She Took From Davis. In spite of the fact that Ms. Holtzapple claims that she is without information sufficient to form a belief as to the amount of money that she took from Dr. Davis, this Court may still award Davis $315,778.79 in damages. In Pennsylvania, a defendant may not state that she is without knowledge or information sufficient to form a belief as to the truth of an averment if, in fact, it is clear that she knows whether an allegation is true or false. Cercone v. Cercone, 386 A 2d 1, 4-5 (Pa Super. Ct 1978). Further, a denial in that manner is deemed to be an admission. Id. 11 PHIL] 817215-2 . +. . Here, the amount of money that Ms. Holtzapple took from Davis is a figure that she, better than any other person, must know. She admitted to taking Davis money with the intent to keep it. She cannot deny the amount of money that she took from Davis by stating that she is without sufficient knowledge to form the basis of an opinion. See id. After all, Ms. Holtzapple admits that she wrote the checks from Davis' accounts for her personal benefit and she maintained Davis' books. Conspicuously missing from her answer to this allegation of the complaint is whether she conducted any investigation to determine the amount of money that she took from, and still owed Davis. Furthermore, she has not come forward with any evidence to dispute the amount of money that Davis asserted in the Complaint. Lastly, Davis is entitled to pre judgment interest in the amount of $112,052.71. In Pennsylvania, it is well settled that a defendant who has been unjustly enriched at the expense of the plaintiff must make restitution. Sack v. Feinman, 432 A.2d 971, 974 (Pa 1981). Pre- judgment interest puts the plaintiff in the same position that he or she was in prior to the defendant's wrongful action. Id. The defendant must make restitution if the receipt and retention of the interest amount are such that, it would be unjust for the defendant to retain the benefit. Id. Here, there can be no argument that Ms. Holtzapple retained the benefit of the use and enjoyment of the $315,779.79. It would be inequitable to allow her to retain the $112,052.71 of interest that is due on those funds. Accordingly, Davis seeks entry of judgment against Ms. Holtzapple in the amount of $276,923.28. 12 PHIL 1817215-2 . , . Accordingly, her infirmed denial of a fact that she already knows the answer to is deemed an admission, and she owes Davis $146,874.55 in principal amount, $17,996.02 in consequential damages and $112,052.71 in interest as claimed in the Complaint and the Davis Aff. III. CONCLUSION For the foregoing reasons, Davis Pulmonary Associates, P.C. and Dr. Stephen Davis. respectfully requests the entry of summary judgment in their favor and against Michele Holtzapple, in the amount of $146,874.55, plus $17,996.02 in consequential damages, plus interest in the amount of $112,052.71, together with such other relief as this Court deems just. KLEHR, RRISON, HARVEY, BRAN4UG & ELLERS LLP By: Anthony P. abassV,-Esquire Randolph . Reliford, Esquire 260 S. Br ad Street Philadelphia, PA 19102 (215) 569-4397 Attorneys for Plaintiffs 13 PHIL] 817215-2 i .i ap E=IT A IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAVIS PULMONARY ASSOCIATES, P.C. AND STEPHEN J. DAVIS, M.D., Plaintiffs V. DOCKET NO. 05 - 3242 CIVIL ACTION - LAW & EQUITY MICHELLE A. HOLTZAPPLE AND GARY HOLTZAPPLE, Defendants NOTICE TO DEFEND 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 OR CANNOT AFFORD ONE, GO TO THE TELEPHONE OR THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 _ `? - CP D V Date Hubert X. Gilroy, Esqu' e Supreme Court I.D. .29943 Broujos & Gilroy, .C. 4 North Hanover Street Carlisle, PA 17013 (717) 243-4574 (Attorney for Plaintiffs) n i ' C) 0 M MM r- --cm r ?? rn . . ., . . 1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAVIS PULMONARY ASSOCIATES, P.C. AND STEPHEN J. DAVIS, M.D., Plaintiffs V. MICHELLE A. HOLTZAPPLE AND GARY HOLTZAPPLE, Defendants DOCKET NO. 05 - 3242 CIVIL ACTION - LAW & EQUITY COMPLAINT 1. Plaintiff is Davis Pulmonary Associates, P.C., a professional corporation duly organized and existing under the laws of the Commonwealth of Pennsylvania in the profession of operating a medical practice having a principal place of business at 1863 Center Street, Camp Hill, Cumberland County, PA 17011 (hereinafter, "Pulmonary Associates") 2. Plaintiff is Stephen J. Davis, M.D., an adult individual having a business address of Davis Pulmonary Associates, P.C., 863 Center Street, Camp Hill, Cumberland County, PA 17011 (hereinafter, "Davis"). 3. Defendant is Michelle A. Holtzapple, an adult individual having a residence address of 193 Atlanthia Lane, Etters, York County, PA 17319. 4. Defendant is Gary Holtzapple, an adult individual having a residence address of 193 Atlanthia Lane, Etters, York County, PA 17319. 5. Michelle A. Holtzapple and Gary Holtzapple (collectively herein, "Holtzapples") are husband and wife and have been so for all times pertinent to this cause of action. 6. Davis is the principal physician, shareholder, director and officer of Pulmonary Associates. 2 7. For all times pertinent to this cause of action, Pulmonary Associates held a checking account bearing account number 1509440 (hereinafter, the "Account") with Pennsylvania State Bank (hereinafter, the Bank"). 8. From on or about February 2, 1993 until March 18, 2005, defendant Michelle A. Holtzapple (hereinafter, "Michelle Holtzapple"), was employed by Pulmonary Associates as bookkeeper and office manager. 9. As bookkeeper and office manager, Michelle Holtzapple's duties included, inter alia, maintaining the financial books and records of Pulmonary Associates, managing receivables and payables for Pulmonary Associates, and drafting checks for the payment of Pulmonary Associates expenses. 10. Michelle Holtzapple was never authorized to use Plaintiffs' funds for Defendants' own personal use. 11. For a period of time beginning on or about February 09, 1999 until December 5, 2002, Michelle Holtzapple was authorized to sign said checks for Pulmonary Associates, as drawer/maker, which were drawn against the Account. 12. On December 5, 2002, Davis informed Michelle Holtzapple that no one other than Davis would be thereafter authorized to sign checks, as drawer/maker, which were drawn against the Account. 13. Unbeknownst to Davis and without authority, privilege or legal justification to do so, after December 5, 2002 and after being notified by Davis not to do so, Michelle Holtzapple continued to sign checks, as drawer/maker, against the Account. 14. Without authority, privilege or legal justification to do so, both before December 5, 2002 and after, until her employment was terminated by Davis, Michelle Holtzapple drew 3 checks against the Account for the Holtzapples' personal use, including checks for payment of Holtzapples' personal expenses and checks improperly drawn to Michelle Holtzapple, which she endorsed and accepted the proceeds therefrom. 15. Plaintiffs believe and therefore aver that Michelle Holtzapple transferred and converted Plaintiffs' property to Michelle Holtzapple, Gary Holtzapple, and Michelle Hottzapplee and Gary Holtzapple, jointly, both outright, by paying individual and marital debts and by otherwise transferring Plaintiffs' property, or the proceeds therefrom, into individual and/or marital assets. 16. Michelle Holtzapple improperly drew checks in the total amount of $ 315,778.79. A list of checks improperly and illegally drawn by Michelle Holtzapple are attached hereto, marked as Exhibit "A", and are incorporated herein by reference as though textually set forth at length. 17. Michelle Holtzapple concealed her said actions from Plaintiffs, even to the point of denying knowledge or culpability when questioned about the possibility of missing funds, with the intent of defrauding Plaintiffs of Plaintiffs' property. 18. On or about March 17, 2005, Davis learned that Michelle Holtzapple was continuing to sign checks, as drawer/maker, against the Account. 19. Davis stopped payment on check number 4434, which was signed by Michelle Holtzapple as drawer/maker, dated March 15, 2005 and drawn against the Account in the amount of $4,350.57. 20. All other checks signed by Michelle Holtzapple as drawer/maker and illegally drawn against the Account as noted in Paragraph 14, supra, were honored by the Bank and paid 4 to Michelle Holtzapple, and Michelle Holtzapple accepted the proceeds, or benefits of the proceeds, therefrom. 21. The Bank repaid Davis the sum of $6,000.00 for said check number 4409. 22. Michelle Holztapple's aforesaid actions were fraudulent, outrageous and committed in bad faith, with absolutely no regard for Plaintiffs' rights and financial welfare and with no legal justification or defense whatsoever. 23. Michelle Holtzapple's actions have caused Plaintiffs loss of use of said funds, and interest thereon. 24. In addition to the stolen funds, as a direct, proximate and foreseeable result of Michelle Holtzapple's said actions, Plaintiffs have incurred damages totaling the sum of $17,996.02, a description of which is attached hereto, marked as Exhibit "B", and which is incorporated herein by reference. 25. In addition to the aforementioned damages, Michelle Holtzapple's actions have caused Plaintiffs to incur, and continue to incur, significant attorney's fees and costs in seeking redress through the filing and prosecution of the instant action. 26. As a direct and proximate result of Michelle Holtzapple's fraudulent, illegal and outrageous conduct, Davis suffered severe emotional distress, which exhibited itself physically by inability to sleep, depression, loss of concentration, weight loss, poor appetite, and other severe distress. 27. On October 18, 2005, Michelle Holtzapple pled guilty for her aforesaid illegal actions to the criminal charges of Theft by Deception, grade of a Felony 3, docketed with this Honorable Court, Criminal Division, at 2005-1542. 28. Defendants have reimbursed Plaintiffs the total sum of $154,000.00. 5 29. Of the total amount of Plaintiffs' funds misappropriated by Michelle Holtzapple, $161,778.79, plus consequential damages of $17,996.02, remains to be reimbursed to Plaintiffs, plus interest Plaintiff would have earned on the funds. 30. Because of the fraudulent and outrageous actions of Michelle Holtzapple, Plaintiffs are entitled to recover their attorney's fees from Michelle Holtzapple. 31. Because of the fraudulent and outrageous actions of Michelle Holtzapple, Plaintiffs are entitled to recover punitive damages from Michelle Holtzapple. 32. The total amount sought by Plaintiffs exceeds $25,000.00, the amount requiring compulsory arbitration in Cumberland County. COUNT I - FRAUD Davis Pulmonary Associates. P.C. and Stephen J. Davis, M.D. v. Michelle A. Holtzapple 33. Paragraphs 1 through 32, above, are incorporated herein by reference as though textually set forth at length. 34. Michelle Holtzapple is liable to Plaintiffs for fraud, as she illegally stole funds from Plaintiffs and concealed her actions with hopes of her actions not being detected by Plaintiffs in order to deprive Plaintiffs of Plaintiffs' property. WHEREFORE, Plaintiffs respectfully request your Honorable Court direct judgment be entered in favor of Plaintiffs and against Michelle Holtzapple in the amount of $161,778.79, plus consequential damages of $17,996.02, compensation for Davis's emotional distress as proven and allowed by law, pre and post judgment interest as allowed by law, costs of suit, attorneys fees incurred by Plaintiffs in prosecuting this action, punitive damages as allowed by law and deemed just by the Court, and any other relief deemed just by the Court. 6 COUNT II - CONVERSION - COMMON LAW Davis Pulmonary Associates, P.C. and Stephen J Davis, M.D. v. Michelle A. Holtzapule 35. Paragraphs 1 through 34, above, are incorporated herein by reference as though textually set forth at length. 36. Michelle Holtzapple converted Plaintiffs' property for her own use by illegally drawing said checks against the Account and accepting the proceeds or benefits thereof, which proceeds were the rightful property of Plaintiffs. WHEREFORE, Plaintiffs respectfully request your Honorable Court direct judgment be entered in favor of Plaintiffs and against Michelle Holtzapple in the amount of $161,778.79, plus consequential damages of $17,996.02, compensation for Davis's emotional distress as proven and allowed by law, pre and post judgment interest as allowed by law, costs of suit, attorneys fees incurred by Plaintiffs in prosecuting this action, punitive damages as allowed by law and deemed just by the Court, and any other relief deemed just by the Court. COUNT III - BREACH OF FIDUCIARY DUTY Davis Pulmonary Associates, P.C. and Stephen J. Davis, M.D. v. Michelle A. Holtzavyle 37. Paragraphs 1 through 36, above, are incorporated herein by reference as though textually set forth at length. 38. Michelle Holtzapple was Plaintiffs' fiduciary, as employee, bookkeeper and business manager for Plaintiffs, as to the Plaintiffs' property, including but not limited to the Account and the funds held therein. 39. Michelle Holtzapple owed a fiduciary duty to Plaintiffs to properly care for and protect Plaintiffs' funds, drawing checks and disbursing Plaintiffs' funds from the Account only for the legitimate expenses owed by Plaintiffs and not for her own or Defendants' use. 7 40. Michelle Holtzapple breached her fiduciary duty owed to Plaintiffs by improperly drawing said checks and accepting the proceeds or benefits thereof for her own and Defendants' use. 41. As a direct and proximate result of the Michelle Holtzapple's breach of her fiduciary duty owed to Plaintiffs, Plaintiffs have incurred uncompensated damages in the nature of the loss of a significant amount of Plaintiffs' funds, in the amount of $161,778.79, plus consequential damages of $17,996.02, as well as interest Plaintiffs would have earned on the funds. 42. Michelle Holtzapple is liable to Plaintiffs for damages caused by Michelle Holtzapple's breach of the fiduciary duty she owed to Plaintiffs. WHEREFORE, Plaintiffs respectfully request your Honorable Court direct judgment be entered in favor of Plaintiffs and against Michelle Holtzapple in the amount of $161,778.79, plus consequential damages of $17,996.02, compensation for Davis's emotional distress as proven and allowed by law, pre and post judgment interest as allowed by law, costs of suit, attorneys fees incurred by Plaintiffs in prosecuting this action, punitive damages as allowed by law and deemed just by the Court, and any other relief deemed just by the Court. COUNT IV - BREACH OF EMPLOYMENT CONTRACT Davis Pulmonary Associates, P.C. and Stephen J. Davis, M.D. v. Michelle A. Holtzapple 43. Paragraphs 1 through 42, above, are incorporated herein by reference as though textually set forth at length. 44. Michelle Holtzapple was a party to an oral but enforceable employment contract with Pulmonary Associates which included that Michelle Holtzapple would properly perform her duties as bookkeeper and office manager for Pulmonary Associates and, in return, Pulmonary Associates would compensate Michelle Holtzapple for her time and efforts as 8 employee for Pulmonary Associates, in an amount agreed to from time to time by the parties. 45. As part of her employment contract, Michelle Holtzapple had the duty and obligation to properly care for and protect Plaintiffs' funds, drawing checks and disbursing Plaintiffs' funds from the Account only for the legitimate expenses owed by Plaintiffs and not for her own or Defendants' use. 46. Michelle Holtzapple breached her employment contract with Plaintiffs by improperly drawing said checks and accepting the proceeds or benefits thereof for her own and Defendants' use. 47. As a direct and proximate result of the Michelle Holtzapple's breach of her employment contract with Plaintiffs, Plaintiffs have incurred uncompensated damages in the nature of the loss of a significant amount of Plaintiffs' funds, in the amount of $161,778.79, plus consequential damages of $17,996.02, as well as interest Plaintiffs would have earned on the funds. 48. Michelle Holtzapple is liable to Plaintiffs for her breach of the employment contract she had with Plaintiffs. WHEREFORE,.Plaintiffs respectfully request your Honorable Court direct judgment be entered in favor of Plaintiffs and against Michelle Holtzapple in the amount of $161,778.79, plus consequential damages of $17,996.02, compensation for Davis's emotional distress as proven and allowed by law, pre and post judgment interest as allowed by law, costs of suit, attorneys fees incurred by Plaintiffs in prosecuting this action, punitive damages as allowed by law and deemed just by the Court, and any other relief deemed just by the Court. 9 COUNT V - STATUTORY ACTION FOR FRAUDULENT TRANSFER PURSUANT TO THE PA UNIFORM FRAUDULENT TRANSFER ACT (12 Pa.C.S. § 5101 et seq.) Davis Pulmonary Associates, P.C. and Stephen J. Davis, M.D. v. Michelle A. Holtzapple and Gary Holtzapple 49. Paragraphs 1 through 48, above, are incorporated herein by reference as though textually set forth at length. 50. Plaintiffs believe and therefore aver that Michelle Holztapple, after incurring a debt to Plaintiffs for conversion of Plaintiffs property, as stated above, transferred some or all of Plaintiffs' property or the proceeds therefrom, as stated, to Gary Holtzapple, outright, or property Michelle Holtzapple held or holds jointly with Gary Holtzapple, including but not limited to real estate jointly owned by Defendants. 51. As defined by 12 Pa.C.S. § 5101, Plaintiffs are creditors of Michelle Holtzapple, and Michelle Holtzapple is a debtor to Plaintiffs. 52. Plaintiffs believe and therefore aver that Michelle Holtzapple transferred Plaintiffs' property to Gary Holtzapple and/or to Michelle Holzapple and Gary Holtzapple, jointly, with the actual intent to hinder, delay and/or defraud Plaintiffs by, inter alia, with the intent of concealing Plaintiffs' assets and/or with the intent of placing the proceeds of Plaintiffs' assets out of the reach of Plaintiffs. 53. Plaintiffs believe and therefore aver that Michelle Holtzapple transferred Plaintiffs property without receiving a reasonably equivalent value in exchange for the transfer and: i) The debtor was engaged or was about to engage in a business or a transaction for which the debtor's remaining assets were unreasonably small in relation to the business or transaction; or 10 ii) The debtor intended to incur, or believed or reasonably should have believed that the debtor would incur, debts beyond her ability to pay as they became due. 54. Plaintiffs believe and therefore aver that the aforesaid transfer of assets was to an insider; that the debtor retained possession or control of the property transferred after the transfer; the transfer or obligation was concealed; before some or all of the transfer(s) was (were) made or obligation(s) was (were) incurred, the debtor had been sued or threatened with suit; the transfer was of substantially all of the debtor's assets; the debtor removed or concealed assets; the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation incurred; and/or the transfer occurred shortly after a substantial debt was incurred. 55. Plaintiffs believe and therefore aver that said transfers arose before said transfers were made and Michelle Holtzapple made said transfers without receiving a reasonably equivalent value in exchange for said transfers and Michelle Holtzapple was insolvent at the time or she became insolvent as a result of the transfer or obligation. 56. Under 12 Pa.C.S. § 5107, Plaintiffs are entitled to relief against Michelle Holtzapple and Gary Holtzapple, jointly and severally. WHEREFORE, Plaintiffs respectfully request your Honorable Court direct judgment be entered in favor of Plaintiffs and against Michelle Holtzapple and Gary Holtzapple, both jointly and severally, in the amount of $161,778.79, plus consequential damages of $17,996.02, compensation for Davis's emotional distress as proven and allowed by law, pre and post judgment interest as allowed by law, costs of suit, attorneys fees incurred by Plaintiffs in prosecuting this action, punitive damages as allowed by law and deemed just by the Court, and 11 any other relief deemed just by the Court. Further, pursuant to 12 Pa.C.S. § 5107, Plaintiffs respectfully request your Honorable Court order relief in the form of. avoidance of the transfer or obligation; attachment or other provisional remedy against the asset transferred or other property of the transferee (Gary Holtzapple and/or Michelle Holtzapple and Gary Holtzapple, jointly); an injunction against further disposition by debtor and/or transferee (Gary Holtzapple and/or Michelle Holtzapple and Gary Holtzapple, jointly); appointment of a receiver to take charge of the transferred assets or of other property of the transferee (Gary Holtzapple and/or Michelle Holtzapple and Gary Holtzapple, jointly); and award Plaintiffs any other relief the Court deems the circumstances requires. COUNT VI - BREACH OF IMPLIED CONTRACT Davis Pulmonary Associates. P.C. and Stephen J. Davis, M.D. v. Michelle A. Holtzapple (in the alternative) 57. Paragraphs 1 through 56, above, are incorporated herein by reference as though textually set forth at length. 58. Every contract imposes upon the parties to the contract an implied duty of good faith and fair dealing, and Michelle Holtzapple likewise was imposed with this duty in her employment contract with Plaintiffs. 59. Michelle Holtzapple breached her duty of good faith and fair dealing to Plaintiffs by her said actions. 60. As a direct result of the Michelle Holtzapple's breach of her duty of good faith and fair dealing, Plaintiffs have incurred uncompensated damages in the nature of the loss of a significant amount of Pulmonary Associates' funds, in the amount of $161,778.79, plus consequential damages of $17,996.02, as well as interest on the funds. 12 ti. WHEREFORE, Plaintiffs respectfully request your Honorable Court direct judgment be entered in favor of Plaintiffs and against Michelle Holtzapple in the amount of $161,778.79, plus consequential damages of $17,996.02, compensation for Davis's emotional distress as proven and allowed by law, pre and post judgment interest as allowed by law, costs of suit, attorneys fees incurred by Plaintiffs in prosecuting this action, punitive damages as allowed by law and deemed just by the Court, and any other relief deemed just by the Court. COUNT VII - CONSTRUCTIVE TRUST Davis Pulmonary Associates. P.C. and Stephen J. Davis. M.D. v Michelle A. HoltzavvIe (in the alternative) 61. Paragraphs 1 through 60, above, are incorporated herein by reference as though textually set forth at length. 62. In the event that it is judicially determined that Plaintiffs have no cognizable or actionable cause of action as averred above, Plaintiffs will have no full and adequate remedy at law. 63. Michelle Holtzapple holds Plaintiffs' said unreimbursed funds in a constructive trust for Plaintiffs' benefit. 64. As constructive trustee, Michelle Holtzapple is required to repay Plaintiffs' funds to Plaintiffs upon demand. 65. Plaintiffs demanded repayment of all of Plaintiffs said funds, however, Michelle Holtzapple has failed to return all of Plaintiffs' property to Plaintiffs, in the nature of the unreimbursed funds in the amount of $161,778.79, plus consequential damages of $17,996.02. 66. Plaintiffs are entitled to a decree awarding Plaintiffs return of their said property. 67. Plaintiffs come to your Honorable and Equitable Court with clean hands. 13 WHEREFORE, Plaintiffs respectfully request your Equitable Court direct judgment be entered in favor of Plaintiffs and against Defendant in the amount of $161,778.79, plus consequential damages of $17,996.02, plus pre and post judgment interest as allowed by law, costs of suit, and any other relief deemed equitable by the Court. COUNT VIII - UNJUST ENRICHMENT Davis Pulmonary Associates, P.C. and Stephen J. Davis, M.D. v. Michelle A. Holtzapple (in the alternative) 68. Paragraphs 1 through 67, above, are incorporated herein by reference as though textually set forth at length. 69. In the event that it is judicially determined that Plaintiffs have no cognizable or actionable cause of action as averred above, Plaintiffs will have no full and adequate remedy at law. 70. If Michelle Holtzapple is allowed to retain Plaintiffs' said funds, Michelle Holtzapple would be unjustly enriched in the amount of $161,778.79, plus consequential damages of $17,996.02, plus interest, as Michelle Holtzapple has no right to retain Plaintiffs' property. 71. Plaintiffs are entitled to a decree awarding Plaintiffs return of their said property. 72. Plaintiffs come to your Honorable and Equitable Court with clean hands. WHEREFORE, Plaintiffs respectfully request your Equitable Court direct judgment be entered in favor of Plaintiffs and against Defendant in the amount of $161,778.79, plus consequential damages of $17,996.02, plus pre and post judgment interest as allowed by law, costs of suit, and any other relief deemed equitable by the Court. 14 COUNT IX - CONSTRUCTIVE TRUST Davis Pulmonary Associates, P.C. and Stephen J. Davis, M.D. v. Gary Holtzapple (in the alternative) 73. Paragraphs 1 through 72, above, are incorporated herein by reference as though textually set forth at length. 74. If it is judicially determined that Plaintiff has no cognizable claim against Gary Holtzapple pursuant to 12 Pa.C.S. § 5101 et seq. (as averred in Count V, above) upon present information and belief, Plaintiffs will have no full and adequate remedy at law against Gary Holtzapple. 75. Plaintiffs believe and therefore aver that the proceeds from Michelle Holtzapple's illegal actions, as aforesaid, or the benefits derived therefrom, have or are being enjoyed by the Holtzapples, or otherwise have become part of the Holtzapples' marital estate. 76. The Holtzapples have no right to said illegally obtained funds, nor a right to enjoy the benefits therefrom, nor a right to retain the illegally obtained assets comprising part of the Holtzapple marital estate and which flow from Michelle Holtzapple's said legal actions. 77. The Holtzapples hold Plaintiffs' said unreimbursed funds in a constructive trust for Plaintiffs' benefit. 78. As constructive trustees, the Holtzapples are required to repay Plaintiffs' funds to Plaintiffs upon demand. 79. Plaintiffs demand repayment of all of Plaintiffs said funds, however, the Holtzapples have failed to return all of Plaintiffs property to Plaintiffs, in the nature of unreimbursed funds in the amount of $161,778.79, plus consequential damages of $17,996.02. 15 80. Plaintiffs are entitled to a decree awarding Plaintiffs return of their said property, as Gary Holtzapple has no right to retain any of Plaintiffs' property or the proceeds or benefits therefrom. 81. Plaintiffs come to your Honorable and Equitable Court with clean hands. WHEREFORE, Plaintiffs respectfully request your Equitable Court direct judgment be entered in favor of Plaintiffs and against Gary Holtzapple, both jointly with Michelle Holtzapple, as well as severally, in the amount of $161,778.79, plus consequential damages of $17,996.02, plus pre and post judgment interest as allowed by law, costs of suit, and any other relief deemed equitable by the Court. COUNT X - UNJUST ENRICHMENT Davis Pulmonary Associates, P.C. and Stephen J. Davis, M.D. v. Gary Holtzavule (in the alternative) 82. Paragraphs 1 through 81, above, are incorporated herein by reference as though textually set forth at length. 83. If Gary Holtzapple is allowed to retain Plaintiffs' said funds, Michelle Holtzapple would be unjustly enriched in the amount of $161,778.79, plus consequential damages of $17,996.02, plus interest, as Gary Holtzapple has no right to retain any of Plaintiffs' property or the proceeds or benefits therefrom. 84. Plaintiffs come to your Honorable and Equitable Court with clean hands. WHEREFORE, Plaintiffs respectfully request your Equitable Court direct judgment be entered in favor of Plaintiffs and against Gary Holtzapple, both jointly with Michelle Holtzapple, as well as severally, in the amount of $161,778.79, plus consequential damages of $17,996.02, plus pre and post judgment interest as allowed by law, costs of suit, and any other relief deemed equitable by the Court. 16 Respectfully Submitted, BROUJOS & GILROY, P.C. CP--OZI U Date By: Hubert X. Gilroy, Esq e Supreme Court I. D. o. 29943 4 North Hanover S eet Carlisle, PA 17013 (717) 243-4574 (Attorney for Plaintiffs) 17 YEAR 2000 TOTAL 559346.35 EXHIBIT A DATE CHECK NUMBER AMOUNT PAYABLE TO PAID TO IN REGISTER 01/18100 1360 2828.51 MICHELLE MICHELLE 03/08/00 1418 600.00 MICHELLE MICHELLE 03129/00 1478 3.750.00 CAPITAL 04/05/00 1482 51900.00 UNIVERSAL 04/25/00 1524 5,395 29 MBNA 05/10100 l w 2,312.72 HRS 05/10100 1556 5,799.09 UNIVERSAL 05/14/00 1562 2,923.61' DISCOVER 06/13100 1606 6,280.56 SUPPLIES DISCOVER 0650/00 1635 2,500.00 DISCOVER 07/01/00 1636 3,245.58 HRS 07/19/00 1665, 1,100.00 CASHIE PA BS MICHELLE 08/03/00 1692 1,200.00 PSS CITIBANK 09/01/00 1747 1,500.00 ERIE CITIBANK 09/25/00 1775 1,350.00 PSS MICHELLE 09/25/00 1776 21000.00 HENRY SCHEIN CITIBANK 10102/00 1826 3,981.23 PSS CIT IBANK 11/15/00 1847 1,500.00 HENRYSCHEIN MICHELLE. 12107/00 1894 2,179.77 PSS CITIBANK 12/13/00 1937 3,000.00 HENRY SCHEIN DISCOVER 60/ced 6*16 £9L LTL?QT AHVNOWIAd STAVC L9:£F SO-LZ-ZT YEAR 2001 DATE CHECK NUMBER AMOUNT 01116101 1964 1143.94 01112/01 1963 3000.00 02120/01 2003 4000.00 02/16/01 2004 1200.00 03/07/01 2057 1457.50 03/13/01 2062 6000.00 03/23/01 2090 182.42 04109101 2111 487.73 04110/01 2113 4000.00 05/07/01 2169 5000.00 06/27i01 2282 1825.00 06/27/01 2258 4000.00 06/06101 2226 4229.52 06/01/01 2204 1800.00 07/10/01 2290 3500.00 07/12101 2284 2000.00 07/27AI 2314 1434.00 08/20/01 2355 6000.00 08/14/01 2354 500.00 08/28/01 2368 1293.01 09/17/01 2395 1338.89 10/17/01 2442 2000.00 10/17/01 2443 996.60 11113/01 2498 200.94 11/16/01 2497 3500.00 12117/01 2555 363.14 12/17101 2554 4100.00 TOTAL 67,552.69 66l'79d SV16 £94 LIL=QI PAID TO DISCOVER CITIBANK DISCOVER CITIBANK )ACHELLE DISCOVER LTD CITIBANK DISCOVER DISCOVER MICHELLE DISCOVER DISCOVER DISCOVER STEVE KBOER CTTIB A.DtK MICHELLE DISCOVER CITIBANK MICHELLE CTTIBANK DISCOVER CITIBANK LTD DISCOVER CITIBANK DISCOVER AVVP[OWI(ld STAVQ L@:£I 69-LL-ZI YEAR 2002 DATE CHECK NUMBER AMOUNT PAID TO Ol i 14/02 26% 650.00 CITI CARD 01/14/02 2617 6500.00 DISCOVER 03/11/02 2684 6800.00 DISCOVER 06117/02 2893 500.00 CITI CARD 06111/02 2890 6500.00 DISCOVER 07/29102 2963 7652.90 CITI CARD 07129102 2962 4980.72 DISCOVER 07118/02 2941 4000.00 DISCOVER 07111/02 2939 3000.00 CITI CARD 11,120102 3138 4000.00 CM CARD 11120/02 3139 1000.00 DISCOVER TOTAL $45583.62 YEAR 2003 DATE CHECK NUMBER AMOUNT PAID TO 01/27/03 3248 2500.00 CITICARD 02/13103 3275 3360.80 GE CAPITAL 03/14/03 3318 3000.00 DISCOVER 04/02103 3356 3000.00 CITICARD 05/09/03 3404 5500.00 CITICARD 05/15/03 3425 500.00 DISCOVER 05,130/03 '3451 5000.00 CITICARD 0G/12/03 3453 2000.00 DISCOVER 071 10103 3501 5500.00 CITICARD' 07/10/03 3502 2000.00 DISCOVER 08/11/03 3558 5500.00 CITICARD 09/11/03 3559 2500.00 DISCOVER 09130/03 3646 5000.00 CITICARD 09/30/03 3647 2000.00 DISCOVER 10/28/03 3662 2000.00 DISCOVER 11/03/03 3691 2000.00 CITICARD 12111/03 3741 1000.00 CMCARD 12/11/03 3742 1000.00 DISCOVER TOTAL $53.360.80 66/96d 6bT6 £SL LTL=QI A*dVN4H^.Itd SIAVC L0:£I S9-LZ-ZT YEAR 2004 DATE CHECK NUMBER. AMOUNT 01/09/04 3786 1000.00 01/14/04 3805 4500.00 01/UM 3806 1444.78 01/29/04 3825 1000.00 01/30/04 3827 3000,00 02/13104 3849 1251.98 02/26/04 3866 900.00 02/27104 3865 4000.00 03/30!04 3939 4000.00 04/15/04 3959 1000.00 06111104 4031 5000.00 06/14104 4032 3000.00 07115/04 4101 3000.00 07,15/04 4100 5000.00 08/13/04 4127 3000.00 08/13104 4126 5150.00 08/27/04 4142 5100.00 09115/04 4182 4800.00 10101104 4205 5490.00 10/28/04 4254 3549.00 10/28/04 4255 2500.00 10129/04 4282 5150.00 TOTAL $72,835.76 PA'Y'ABLE TO PAID TO DISCOVER CITI CARD DELL PREF DISCOVER Cm MICHELLE DISCOVER CM CARD CM CARD DISCOVER CM CARD DISCOVER DISCOVER CITI CARD CM CARD DISCOVER CM CARD DISCOVER CITI CARD DISCOVER CITI CARD CITI CARD G-.T= CIO) ivi.eti xwww^WRn.2 Lt-^ Pf -, -- - YEAR 20015 DATE 01/10/05 02/24/05 0311.5!05 CHECK NUMBER AMOUNT PAID TO 4347 5750.00 CITICARD 4409 6000.OQ CITICARD 4434 4350.57 DISCOVER TOTAL 517100.57 DAVIS PULMONARY ASSOCIATES, : IN THE COURT OF COMMON PLEAS OF P.C., AND STEPHEN J. DAVIS, M.D., : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : DOCKET NO. 05 - 3242 V. MICHELLE A. HOLTZAPPLE AND GARY HOLTZAPPLE, Defendants : CIVIL ACTION - LAW & EQUITY CONSEQUENTIAL DAMAGES Accounting Fees to McKonly & Asbury Accounting Fees to McKonly & Asbury Fees for lock change Expenses for Natasha Richards Certified Mail Expenses for Stephen J. Davis Salary for Penny Zimmerman Salary for John Richards Checks for new checking account PA State Bank new credit card charge T.D. Mills for new stamper for new act Estimated time for Penny until August 16th Vacation time paid to Defendant but not earned $2,070.00 $1,750.00 $ 145.99 $1,252.00 $ 10.35 $8,325.00 $1,960.00 $ 825.00 $ 96.00 $ 5.00 $ 27.63 $ 768.00 $ 761.05 TOTAL .......................................................................$17,996.02 EXHIBIT B IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAVIS PULMONARY ASSOCIATES, P.C. AND STEPHEN J. DAVIS, M.D., Plaintiffs V. DOCKET NO. 05 - 3242 CIVIL ACTION - LAW & EQUITY MICHELLE A. HOLTZAPPLE AND GARY HOLTZAPPLE, Defendants VERIFICATION I am Stephen J. Davis, M.D., president of Davis Pulmonary Associates, P.C., and I am authorized to sign this verification on behalf of the corporation. I am also an individual plaintiff in this action. The words of the foregoing Complaint and the legal conclusions contained in the document are those of my attorney and not mine, however, the Complaint is based upon information that I have provided to my attorney or that my attorney has found upon reasonable investigation and provided to me. The facts averred in the foregoing Complaint are true and correct to the best of my knowledge, information and belief, and I understand that this verification is made subject to 18 Pa.C.S. § 4904 relating to unworn falsification to authorities. _ _ - 015" S-R* UP ") Date Stephen J. Davis, M.D. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAVIS PULMONARY ASSOCIATES, P.C. AND STEPHEN J. DAVIS, M.D., Plaintiffs V. MICHELLE A. HOLTZAPPLE AND , GARY HOLTZAPPLE, Defendants DOCKET NO. 05 - 3242 CIVIL ACTION - LAW & EQUITY CERTIFICATE OF SERVICE I hereby certify that, on this date, I have served a true and correct copy of the foregoing Complaint upon the following and in the manner specified, which service satisfies Pa.R.C.P. 440: UNITED STATES FIRST CLASS MAIL POSTAGE PREPAID TO: R. Mark Thomas, Esquire 101 South Market Street Mechanicsburg, PA 17055-3851 Date -) -'?? o ? Hubert X. Gi y, Esquire Supreme C I.D. No. 29943 Broujos Gilroy, P.C. 4 North Hanover Street Carlisle, PA 17013 (717) 243-4574 (Attorney for Plaintiffs) EXHIBIT B 10/2512085 15:41 7177327810 E45TFENNS8MT%P PAGE 0- E. +lE?RO .,a HARRISBURG AREA; PoLICB INPbRMATTON 12ESOL'RC6 SYSTF t { rt'RIPTtC) :?AG3; e 2 08 /24 /05 NFJCl EPB2 -INC#. SPE 70 35030.0318 DT,TM:=:.;2005 03 18 1830 ------ ---------------------------- --------- - .RSPORT NO ----------- -- 14 SP SUPPIAMEXV-AL ---------------------------- M . STATUS : o --- ------------ 'FTGMMS FOR THIS CASE: --nM TOTAL ~LOGS YEAR 2000....$jj.$s5.79 + $9480.56 $59346.35 2041.....$7$59.82 + $9892.87 a $67552.69 2002.. - ...................$45S02.62 2'043:.. .:........ .....$53360.80 2dOQ..•$?3:?i$3.78 + $1251.98 a $72835.76 2003.... . .......... .....$1?300.57' altw tI' TAL Qf.;FLOSS... ..... , ... $315798.79 LEIS Cl-MCK 0434,:.('STOP FAY)MM BY DAVIS) $4350.57 AM HECK #4409 (RElbobo:M TO DAVIS BY VMN6Y'1.VANIA STATE BANK $6000.00. RSSTITMI6,1'AIK''TO: DAVIS PJLMONARY IS. - .$305428.22 PENNA. STATE BANK ...$6000.00 iTi?0.3- -- "? '""'^'"a flrtrsrnaieav FROM:7 1 7732781 9 POE 6tiT6 £9L LTL=QI AHVNOWInA QTAWe? rm...r ... icy'^5I;aas 15 a. '1"32?6:e E-A5 =EUrG6vROTwp 0,, -r-.E us METRO THE It-WRISBIM0 AREA POLICB nIFORWrION RBSOCRCE SYSTEM (ICRIPINC) ?AGE: 1.6 05/12 /,?5 MJC1 EPH8 1Z1C#: SP3 20050300316 DTFTK; 2005 03 19 1830 ----------------------- --•. J:I------------ .. ------------------------------------ REPORT NO : 09 SP SUPPLBXF.01'fAt STATUS : O _ LOC, GRID: CBN-,tR ST 01£63 __ ---'CAMP HTLL - - -PA 0010 REPORT O?F: 1612 MICHARG. J COTTON 04/27/05 2310 PLAT: SECT: D VEM INFO: INS, OUT: I LIGHT: WEA'TIM.: TEMP: F ASSIGN OFF: 00/00/00 DOTE: . ;PWV OFF: 1603 S'TMkP.T A SPENCER 00/00/00 Gv . HANDBK: PCCD V/W PoRm; --KM MAT FORM: BXT Si tEi) DOC : S$C..SURVEY UEFERR PROSS(jf t: LEA m FOR. HEAR: STMT / CONFESS: ST.'S) • FaFMTHBR 'NmaOrs: CRwM smolm: WARRANT: ,vot ;OAT L'P: Y RSC ASSIGN-'.V0. D NCIC CRTM MIST: N CM PROP DAM: Y"R.1999 'I,OS3R.3 NONE REPORTED.. 16-25-65 14:47 YO:DAVIB PULMONARY FROM:7177327819 564 TT!bNd Ebt6 09L LTL=QT AHVNOWTRd STAVC TO;VT SO-St-TT 10/25 20x5 15:41 7111"32:318 E:+aTPENNSBO?^T).P P43E 0- METRO THE i?ARRISBURG AREA Pd:uZCE I:3FGFMATI,,)N RESOURCE 5YSS J 13f G5 CM,3C1pEPE3 PACE.: 1.5 TNC#: £PE 20050300318 D^_, N- 2.00S 0'1$-1930 __------------------------------- REP _ No - . _ 08 SP - - QCTPPLE?fEd?'1'AL- - - - - - - - ?Ip•I'L7S :v o-RT ..__- --------------------------- CENTER ST- r-------013&3 -- CAMP 14.1 LL PA 0010 I,OC, GRID: 04/27/05 2253 ?LXT: SECT: D 1t$,PQRi OFA: 1622 MICHAEL. 3.C`OTTGN INFO : jNs. ouT . I LIGHT : WEATHER : TEMP : v=-19 00/00/00 DUE. ASSXGN OFF: 00/00/00 APFROV OFP; 1603 STUART. A 9PEWER , j HANDBK: PCCD V/W.pom. !)OM RELAT FORM: EXT SIGNED DOC: DA M VOR NEAR: STMT /• CONFESS- Ac SURVEY : DEk'ERR PR.Q3BCUI : CR.:M 3L1M1" Ns : WARRALQT - ARREST (S) : FURTHER A'RR88TS F'OLLM UP; Y FMC ASSIGN 'TO D NCIC CR_M HIST: N ^IT`t PROP DAM_ YEAR 2000 LOSSES Cit #1360 111$12000 .$2828.51 MIC)M'LLE HOLTZAPPLE ??? CK #14718 3029/2000 $315x.00 CAPITAL CK #1482 4/05•%2004 $5900.00 UIC' "REAL SERVICES „-ORP. CK. #1524 . 4/2tZi000• $5395.28 HWA CPC #1546 S/1.?i2.000 $2312.72 M CK #1556 5/' 0/?000 $5799.09 UNIWWA: CARD SERVICE- CT' #1562 5/i4/2400 $2923.61 DISCOVER CK x}1635 6116f4000 $2500.00 DISCOVER CR. #1636 7/03.'/2000 $3246.68 TMS CK #].$26 10/Q2/2000 $3981.23 CITIRMK CK..#1894 12/07/2000' $2179.77 CITIBANK Ck• #1937 .12/13•/2000 $3000.00 DISCOVER TOTAL YSAR LO3St.2000...$43315.79 THIS OFFICER . IV$D SEVERAL MORE CHECK FROM YM 2000 THAT DR. DAVIS HAS•:;FLAa= AS FRAUDULENT. CK• #177S 09/,25/•2040 $1350.03 MICHELLE X0l.,T7,APPLE ???? CK #1692 06/03/2000 $1200.00 CITIBAM .?.,. c V11? mrttAnv 7rROMl:T177327816 P63 IT/30d 6bIE ESL L14=CI AUVNOKlnd SIAV'C Z0:VT SO-ST-IS 10:`".SI i?35 IS: 4:1 71777327812 c4STPENNSPAkOTt?F Pc;E i7=• METRO T14E HARRISBURG ILO. ..POLICE INFORMATION RESOURCE SYSTEM (ICRIPINC) .FAOE: 14 05/13/OS MCC1 3FS8 INC#: EPE 20050300318 D^,.',TM:•, 2005 03 19 1930 REPG12T NO -------------------------- 07 Sid SUPPLEZw A'? _ - - - _ - - _ STATUS : O ------_-_------------------- ------ ------------------------------------------ LOC, GRID: CENTER ST 01863 CAMP HILL PA 0010 PiRpQRT OFF. 1612 MICHA Xi J COTTON 04/27/OS 2205 PLAT: SECT: D %w INFO : 2NS , oln : X TIGHT . WEATHER.- TEMP : F 'ASSIGN OFF. 00/00/00 D,JE: A ROV OFF: 1.003 ST-tWT ,..A SPENCER 00%00/04 CV mmBK; PCCD V/W FORWi: DOM RELAT FORM: EXT SIGNED DOC: SSC . SLlR'0'EY . DE PERk PROSECW- : DA REQ FOR REAR : STt?RT / COVFlSS : ,'ARREST ( S) : P RTHER. 14p.R818ts : CRim ST?fi?lONS : WARRANT : FOIL(w 'CUP: Y REC ASSIC$?:°fi0: D• NcT-- CRIM H23T: N CITY PROP DAM: -X?UA 2001. LoSSEs CK #1964 cx #2.463 CR: #2003 CK #2004 CK #2062 Cat #21:11 CK #2113 CK 4216.9 CK42258 CK" #2226 CK A2204 CK X2284 CX #2355 CK , #x.354 cx' 0395 CEi #2442 CK #24#3 CK #2497 CK'#2555 CK #2-t$4 .1/4.6/2001 $1143.94 yf 12YO0.0. $3000.00 2f20.t;0.01 $4000.00 2 ?l 2661 $1200.00 3/13/,2601 $6000.00 '.4/0912001 $487.73 4/102001 $4000.00 s/Q??Ix?o1' $5000.00 ?/il/2:001 $6004.00 6./6.5/1001. $4229.52 6/411/2.001 $1800.00 7/.12/2001 $2000.00 8/2.0 '3-Q01 $6000.00 8/xa/2461 000.00 9/2-W-IaOl $1336.89 10./2-`7/2001 $2000.00 10/11/2001 $996.50 :1113.6/2•6,01 $3500.00 12.11702001 $363.14 12117/2001 $4100.00 DISCOVER CITIBANK DISCOV81t CITIBANK. DX scovaR CITIBMK DISCOVER DISCOVER DISCOVER DISCOVER DISCOVER CITI CARDS DISCOVER CITI CARDS CITI CARDS DISCOVER CITI CARDS DISCOVER CITI CARDS DISCOVER TOTAL LOSS 9AR•,2001...$576SP.82 I ti90d __ ••,••"•,,? rron?r r,?7.2?TRt A PA7 6bi6E9L LiL=Q1 AUVNOMlnd SIAVC L9'bt SO-ST-TT :0/25-'2005 15:41 71" 327310 EAS T FnP -cKF.C a PAGE 01 ?'mo MM AMRTSRLT:G AR-VA. POLICE alFORMATION RESOURCE SYSTPM (2CRIPINC) ,PAGE: 13 05/13/05 MSCl Ef8$ '4C#: EPS 2CO50300318 DT,TM'....2005 03 18 1830 _ _ REPORT Nn.. 06 SP. XRP __.» - - - STATUS, 0 -- ~LOC. GRID: TCE?'Pi'A?R. ST •0186.3 - - CAMP FILL . PFD 0010 :REPORT OOP : 1612 MICHAEL +r CO :TON 04/27/05 2147 PLAT: SECT: D VrH I:ZPG: I s,ovT: I Llt',HT: WSATIMR: TEMP: F ASSIGN-OFF- 00/00/00 DUDE: Rvml?bv OFF: 16J3 STi71,I-T ;.A SPWCZR 00100/00 CV EANDSK. PCm V/W .0otM DOM RELAT FORM : EXT S I MM I OC S$G'SE3RVEY: OEM= PRQO DA REQ FOR HEAR: STMT / CONFESS; .Ait_?MST (S) : RDR' mk. CRF.N sawnS: WARRANT: ot4 .OW UP: Y R sc, A8ax0r:7-x0.: D NCTC CRIM HIST: N CITY PROP DAM: YpRR 2002 LOSSM. CK :#2606 lllt,/2"OOZ $650.00 CITI CARDS C'K .#261y 7:/14/ '2 .$6500.00 DISCOM CK ;#2684 3/1.14.0'2. -$5800.00 DISCOVER GK #9893 .6f 1/3'002 $500.00 CITI CARDS CK #2.890 6; 27 02. $6500,00 D23CC,VER CK ;'#2963 712$1'2-00x $7652.90 CITY CARDS CK 42962' 7/2Sf*;lP42- $4980.72 DISCOVER -K #2941 7"58 dbaz $4000,.00 DISCOVER C:K #2939 /i ly442 $3000.00 CXTZ CARDS CK -#313.8 111:202:002 $4000.00 CITI CARDS CX 43139 tS1zp'+2D:D2 $1000..00 DISCOVER 'IOTA' LOSS A 10t.'-.4,602-645583.92 19-2565 14:46 TO: DAV I S PULMONARY FROM-7177327816 PA1 IT;40d GV16 09L LTL-QI AUVNOW7Pd SIAVC Z6:tT 59-9T-TT 10/25-1, 20@5 15: 34 7177327810 -_AS-TPENNSBOROTlilP PA =- 01 2!tL3'RO THE NAR ISBtIRt3'r' 1' Y+ZCB IN=RMA•TIGN RESOURCE SYSTEM i ICRIP111 :PAGE: 12 05/13/05 MJC1 EPEE 3C#.: EPE 20 Q803003J 8 I'iT?!i . $O S 03 10 1830 ---- --------- ------------ nPTORT NO OS SP -SuPP 7?L STATUS - 0 - ------------ yLOC; GRID: --------- CENM' 5 r _- -018$3--------- ----- CAMP HILL PA 0010 REPORT. OFF: . 1612 '1KSCKML'. -' ...?r COTTON 04/25/05 2320 PLAT: SECT: D - v3H . SNFO : TI(C OUT : I LIGh : WEATH8R : ': EMP : F 'ASSIST OPP 00/00/00 DUR. APPROV• O'FF: 1504 TODD M SASHOIRB 00/40/00 *I1x TtAh'DRR : PCCD : V/W F '• DOM :PLAT FORM : EXT . S I uGN= DOC : ;SEC SURVEY : MARK P DA REQ FOR HEM: STMT / CONFrS S : •ARIMS'T (S)- : tuRm$ AItR S : •. CRIM SiW4= : WARRANT : ', -p0L-LLW. UP : Y .. R$C A"Z.C#; 'D: NCIC GRIM KIST: N CITY PROP DAM : YZ1 X 2003:- LL ii CK #329;8 003 $2500.00 CITI CARDS CK*.'#327.3 '. 2/ 1 Oda; .4336.0.80 G$ CAPI AL CK.';#3318. 3/x 1 2 A'3 ; $3000.00 DISCaM' C!t •.#?356 ..03003 : , :$3000.00 CITI CARDS CK #3404 • . S."). `? $5500.40 CITI CARDS 5 CI6? #s4.Z $f `, -4003 -•. . $500.00 • DISCcWMk . C!4 #3 451 / 2043' 5 $5000..00 CITI' C?1RDS cX43.453 , . 6'I.:x e03 42000.00 DISCOVER CR #3541 'T$ 21ao-3.. $5504.00 CITI CARDS CK' #350? VA:tS?F Q3. $2000.00 , DISCOV R Cx.J3558. .. ' 8:f• 2Cn3 . $5500. oo CITT CAZtDs C9 43539: • .$500.00 DISCOVER K-#364:6 •' 003 $5000.00' CtTI CARDS CK '0364-7; .• :9/.311 20.03 - *$2000.00, DISCOVER CR..#366'2 14•/Z$f260: $200.0:00 DISCOVER C8: 316 ? alt 003 :$2000.00 CM CARDS ci.;#3.44 $1000.00 CITI CApns CF:`#37.42 12•f2:43'. $1000.00 DISCOVER TOTAL 7483 Y3W 200.3 - .. $53360.80 i if863 6bt6 £9L L1L=QI?vn nM 7 1 '77^, 9•TQ 1 6 DR I AHVNOHlnd S IAVC 00 : b t SO 91-IT ' - , 1^ CS 15:25 17 , s_ e' FA:-;1PFFCSRlR.n7j I'm7RN0 THE HART! ISPURG ARB11 POLZCM IWORMATION RESOLIRC.E 3Y.ST" i I.CRTP.TZ7C) PAGE: A ng:13/.)5 MJC1 EP88 .:NC'#: EPE 20OR0200310 U'S,'im, 2005 ()1 'R 7830 REPCIAT INTO : 01 ZC T217TIAL CRIME STATUE 1 -- - - r - - - -- . . ST.C D-BY^HOLTZA.nPLIE -W/A.CCT ?#5429180512110088 IN THE -,4M40 - - CK #4347 DATE.. 1/10/2005 AMOUNT $6750.00 PAYABLE TO CT71 RZ5 ..SICiiQEI?. BY HOLTZAPPLE W/A.CCr 954241805122.10088 IN RE MWO C=C #4409 L1?sTE -2/24/2005 AMD=r $6000.00 PAYAAZ?E TO CITI ,:AIDS . S2C$iBD BY fIOL1'ZAPPLd: W/ACCT #5424180512110086 IN THE MV40 *.X #4434 DATE -3s 15/2005 AMOMiT OF $4350.50 PAYABLE TO DISCOVER CARD ...SIMM 'B:; H0L'1'3APPL8 W/AZCT#6011002060365244 IN THE M R10. DAMS vw Hi9 0172 WSN7 THROD H TIE 2004 STAT73MrrS AND DISCOVmm--THA'I' :TIm WSRS NOMmus INSTANCES -OF STJSPICIOUS CHECKS. THSSE•: ff. ` ..880X6' . WERE SIGH BY THE SUSPECT AM THEIR A0G'LMWrAT=tx,.-.l OOVf5M BY WaTE OUT. THU POLLOWING WERE ?DBRTIFISD AS 'l. hk 7 MINT . YEAR 2.004' CK. 3.786 '.1/2311. 064 $.1000.00 DISCOVER CARD CK :3605. 1120:12004 •$4500.00 . CITI CARDS C1C 3805 `1/26/$ 4!0 .$144#.7$ D8T1 PREPERREA ACCOW CK 3825 1/2.4/2604 •$1000.00 DISCOVER CAD CK 3827 1/30I20.04 • '53000.00 CITI CARD C'AC 385.6 ' 2f 26'j.30•d4 $90.0.00 DISCOVER CK 3865 2/2713004 $4000.00 CITI 'CARDS CIt .3939 #/3Q f•,•2004 $410'00.00 CIT'. CARDS CX 3359 .4/15/4064 -$1000.00 DISCOVER CK 14031 6/11/,26t 4' $5000.00 CITI CARDS CK 4432 6/iiWi- 04: $3000.00 DISCOVER CK.4101 7/1512:Ofl4 $3000.00 DISCOVER C'K 41.00 7./15/2'064 $5000.00 CITL CARDS CIC 4127 8,13/004 .$3000.00 CITE CARDS CK 4126 8/13/41064 $5150.00 DISCOVER CK 4142 8/27/•2;•6'84 $5100.00 CITI CARDS CF,. 4182 5/15/2604 $4800.00 DISCOVER CK •4205 16/01/2604 •$5490.00 CITI ' CARDS CK 4254 7./28/3"0.04 $3.549.00 DISC0M CK 42SS 10/29./2.064 $2500.00 CITI CARDS c:K 4282 11/29'2:004 $5.150.OC C-TI CARDS TOTAL YEAR •LOSS-2004....$715B3.78 I6-25-85 14:41 TO:DAGIS PULM03ARY FAOM:717732?SIG P02 TT/60d 6bT6 09L ZTL-11 AHVNOWlnd STndQ E@:•5T SO--ST-TT 13125/-ne•S .5:35 :177327510 EASTPENNSBOROT''4P P<:iE [tiNETRO THE u RISBURG .ILM PGLT_C lV. ?QT4&TION RESOURCE SYSTEM ? I?IPINC) PAGE: 21 05/13/;)5 MJc- EPBS `INC#: $PH 20050303'l.8 DT,'':MI 2005 03 :8 1930 ------------------------- REPORT 90 : 04SP SJPp--sEM Y`AL- ;>TATUS : O -7 L---CC G1tTD:'CE2TI1YSTy ---- -. -Oi>363 - - CAMP HILL PA 0010 R9FQRT- OFF: 2612 MICRAR:. 3 COTTON 04/25/05 2312 PLAT: SECT- D "m INFO : INS, OUT : I L IQ-1T : VMTFJ R : TP.MP : F ASSIGN QPF: 00/00/00 017E: 'APPRQV OFP: 1604 TODD !l BASHORE 00/00/00 cv ximsx : PcCD V/tW.pm, DOM RBLAT FORM : EXT 314MD DOC : SEC SURVEY: DEF'ERR Pk08*MTa DA REQ POR HEAR: STMT ! CONFESS: ALUM T (S) : Fcm.rp.m Akaxa''m : CRI14. SUMMONS : WARRANT : f.OLLGW UP : Y REC ASS C@1: TQ : 0• NCIC aLTM HIST : 'N CITY r ROP DAyi : YEM .2005 CK #4347 1/1.4/20105 $5750.00 CITI CARDS CK #4409 2/•24*/2.005 $5000.00 CITI CARDS CK #44334 3/15{•2005. $4350.57 DISCOVER TOTAL LOSS. YEAR 2005...$1'7100.57 18-25-&5 14:41 TO:DAVIS PU] MONAPA FRCM:7177327815 P93 11"074 StI6 £94 LTL=QT A?IVNOwlna SIAVC tG:VT SS-97-TT lES:'':5!' 005 1 41 71"32'810 SAS' El4r-- "_ft-ll.JP F;ASE. C15 METRO T1"x, P'r.ARRISBLTRG ARFA POLICE INFOPU A':ION RESOURCE SxSTISM 1:;RIPINC) PAGE: ' 08,'24/75 M.7C1 EPS1 :I1'c#: EPE 20050300318 D'T.TM! 2005 03 13 1830 FRI TO: ------------------------------ RPPJR'T NO : 14 SP SUPP?,E~ITAL S-TATUS: 0 _ _ LOC, GRID: CMrLFARSi _? 01663 CAMP KILL P?4 0030 REPORT OFF: 1612 MTC"HAEL J COTTON 08/124/05 2119 KAT: SECT: D ;. H INFO: INS, OUT. T LIGHT: 1+TFATH>~R : TZF-P : P .ASSIGN O?F: 00/00/00 DUE: APP3R.OV OPF: 04/00/00 CV RANDBK: PCCD V/W rORM: DOM RRLAT FORM: EXT SIM42D DOC SEC SURVEY : LEFERR I?ROSRan : 'OA RBQ ?OR HEAR : S','Lx4T / CONFESS : ARREST (S) : F[IRTHER ARR2STS : C'RI14 SIJI+ WOKS : WARRANT! FOLLOW UP: Y REC ASSIGN .To-, D NCIC GRIM FAST: N CITY PROP DAM: ON 07/27/20051-.. 'YhE VICTIM, DR. STEPHEN DAVIS C014 ACTS.?' rRIS OFFICER. DAVIS.•: TAPORMED ME THAT HE HAD GONE THROUGH HIS FINMCIAL ARCOkW. AGAIN AND ICE FOUM SS'VEM MORE CHECKS THAT HE 'DBI AS FRALDLILENT . DAVIS FAXIM THE 60CLVMNTS :'O MY ATT NTION. 03/.08/2000 CRICK #1418 $600.00 MTCH&LLH H0'':,TZAPPLE 06/13/2000 CHECK 1606 $6280.56 DISCOVER 07/19/2000 CtbM # 1.65 $1100.00 MICHELLE HOLTZAPPLE '11/15/2£00 CEECK #1847 $1500.00 MIC HPtI..LE HOLTZA2;?LZ TOTAL ADDITIONAL' LASS FOR YEAR 2000 $9480.56 #*x# #x«#**•«t,t**,rw**s,e*,r:«ve**r#**y,?,?r.«+t##*?w.+?r.wrr#f,w*#rw#rt+,r+,? 03/07/2001 . C?TICX #2057 $1457:50 MICHELLE HOLTZAPPLE 06/27/200', COCX 42292 S18::5.00 MICHELLE HOLTZAPPLE 67/10/2001 COCK #2290 $3500.00 STEVE 1C MPER (A CONTRACTOR HIRM.BY HOLTZAPPLE TO DO WORK AT THE HOLTZAPPLE RSS'IDIT?iCE) ' 07/27%2001 CHECK #2314 $1434.00 MICHrsLLE HOL':ZAPPLE 68/28/2001 CREQIK 42368 $1293.01 M?CHELLE HOLTZAPPLE 03i"23/2001 C=K X12090 $182.42 LTD COMMODITIES 11/13/2001 COCK #' 2498 $200.94 LTD COK140DITIES i"'OAL ADDITIONAL LOSSES FOR FEAR 2002 $9852.87 y#+##r«**.#*r RRrkxxx#kri.R#'k rtrwx***•k*!?!?*««4#*###}•i##r«k•Kf##•!**#«*+ *t*.w«•kt«*«r!!•.itr,*.##*«##**###««##t#Rrt'.fii!###•RxRtkr#x#ir«rx*«#rr*#ytww 02/13/2004 CHECr, #3849 $1251.98 MICHELLE HOLTZAPPLE ODOVBLE PAYROLL CHECK) TOTAL ADDITIONAL, LOSS FOR YEAR 20Opt = $1252.. a8 #k*:+#*#«#k°r*ak+r*'RSlsri'+*##tt*+ir####+r####+##+««#xx*s#•#irr+###eftir ##*x«*#+w,rw+****x*#r?t*k#stwXVrw*,r*rxwwwrrxr+rr.xxexYxtrr*xw*tr*xss* # '#'##*#'k#Y!#*i«*'*'«##A*x'R##*#}'l"1'ft#Mr1t'rR7Y•r*##+•1##4##'T#tt##?c+f 1t*ki+R lk+i'+###+*##*#«k'*ii##M#i####•R#tM 1Cw4'?#'R«#*#+y•#*##++r •f?ft*##•/r###+##ir ,o_oC-?K 14:49 1"O:DAY15 PVLMONAitV FROM:7177327810 F05 TT/TTd 6b I6 C9L LT1.-(71 Ai1t1NOY17Ild S 1 Av(t bq !b t CO-OT-TT EXHIBIT C IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION DAVIS PULMONARY ASSOCIATES, P.C. CASE NUMBER: 2005-3242 AND STEPHEN J. DAVIS, M.D. Plaintiffs, V. MICHELLE A. HOLTZAPPLE AND GARY HOLTZAPPLE Defendants. AFFIDAVIT OF STEPHEN DAVIS, M.D. COMMONWEALTH OF PENNSYLVANIA ) )SS.. CUMBERLAND COUNTY ) I, Stephen Davis, M.D., of full age, being duly sworn according to law, deposes and says: 1. I am a plaintiff in the above-captioned action and I am the president of Davis Pulmonary Associates, P.C. ("DPA") and am authorized to testify on its behalf. 2. I hired Michelle Holtzapple in 1993 to be the office manager and to maintain the books of DPA. Her duties included paying DPA bills and managing the office. Accordingly, Ms. Holtzapple had access to the DPA - Pennsylvania State Bank bank account. 3. DPA and myself placed a great deal of trust in Ms. Holtzapple. At no time was she permitted to pay her own bills or write checks payable to herself from the DPA bank account. 4. Ms. Holtzapple abused that trust. Over a five and a half-year period, Ms. Holtzapple stole $315,778.79 5. Ms. Holtzapple actively concealed her theft by making double entries into our accounting program, doctoring statements from our bank account and by lying to me on multiple occasions. PHIL1 817215-2 6. Ms. Holtzapple took advantage of my failing health. She stole money from DPA while I was fighting vocal chord cancer and while I was recovering from hip-replacement surgery. 7. I confronted Ms. Holtzapple concerning the missing funds. She lied to me and assured me that she had not been taking any money from DPA. Ms. Holtzapple actively concealed this theft from DPA and myself. 8. After a reasonable inquiry into the missing funds, on March 18, 2005, I terminated Ms. Holtzapple's employment and then filed a police report against Ms. Holtzapple. Subsequently she was arrested and plead guilty to theft by deception for the funds that she stole. 9. As part of her sentencing, Ms. Holtzapple has paid back to DPA $18,904.24 in restitution. 10. As a direct result of her active concealment and the theft of the funds, DPA incurred an additional $17,996.02 in consequential damages. 11. Currently, a principal balance of $146,874.55 remains due and owing of the original principal. 12. Ms. Holtzapple also owes interest in the amount of $112,051.72. 13. Accordingly, Davis is seeking entry of judgment against Ms. Holtzapple in the amount of $276,923.28. 2 PHTLI 817215-2 EXHIBIT D COMMONWEALTH V. MICHELLE A. HOLTZAPPLE OTN: H929688-4 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CP-21-CR-1542-2005 CHARGES: (1) THEFT BY DECEPTION AFFIANT: PTL. MICHAEL COTTON IN RE: DEFENDANT PLEADS GUILTY Proceedings held before the HONORABLE EDGAR B. BAYLEY, J., Cumberland County Courthouse, Carlisle, Pennsylvania, on October 18, 2005, in Courtroom Number Two. APPEARANCES: JOHN C. DAILEY, Esquire r=? Assistant District Attorney r-2`- For the Commonwealth ru R. MARK THOMAS, Esquire C- oc-J For the Defendant wj ?? 1 2 3 4 5 6 7 8 9 10 11- 12 13 14 15 16 17 18 19 20 21 22 23 24 25 October 18, 2005 Carlisle, Pennsylvania (Whereupon, the following proceedings were held:) MR. DAILEY: Number 171, Commonwealth versus Michelle Holtzapple. Defendant's going to be pleading guilty to Count 1, theft by deception, graded as a felony of the third degree, carrying a maximum $15,000.00 fine and a maximum possible seven years imprisonment. Facts. The defendant was an office manager for a Davis Pulmonary Associates, a medical practice located in East Pennsboro Township. As manager, the defendant had access and authorization to write checks to pay for the practice's bills. Since starting in the year 2000 and continuing through March of 2005, the defendant systematically wrote checks on the practice's account to pay her own personal debt without permission or authorization of Dr. Davis who was battling cancer and related health problems during this time frame. The defendant was taking money from the practice to pay a personal City Bank Discovery and other credit card bills that she had run up. Since January 18th of 2000 until March of 2005, the defendant averaged taking $5,000.00 a month, for a total of $315,000.00 from the 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 practice's account., and used that money for her own personal gain. THE COURT: Does your client wish to plead guilty as indicated? MR. THOMAS: Yes, Your Honor. THE COURT: Did you sign a rights form, ma'am? THE DEFENDANT: Yes, sir. THE COURT: Any questions regarding your rights? THE DEFENDANT: No, sir. THE COURT: It is a felony of the third degree. The maximum penalty is seven years imprisonment and a fine. Sentencing is at my discretion. If you stole this money, took it with the intent to deprive the true owner of it permanently, that is theft by deception. Do you admit .you committed the offense? THE DEFENDANT: Yes, sir. THE COURT: I'll accept the plea. Enter this order. Defendant having appeared and tendered a plea of guilty to Count 1, theft by deception, a felony of the third degree, the plea is accepted in full satisfaction of all charges at this term and number. A presentence investigation is ordered. Defendant is ordered to appear for sentencing on Tuesday, January 10, 2006, at 1:30 p.m. 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. THOMAS: Your Honor, just for the record, restitution in the amount of $150,000.00 has been paid as of about two months ago. THE COURT: One hundred and fifty of it has been paid back? MR. THOMAS: Yes. THE COURT: Good. The more progress on that the better shape she will be in. MR. THOMAS: Thank you, Judge. (Whereupon, the colloquy was concluded.) 4 I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause and that this is a correct transcript of same. Pamela R. Sheaffer Official Court Reporter 00 The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. Edgar B. Bay, ey, J. Ninth Judicial District 5 COMMONWEALTH. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CP-21-CR-1542-2005 CHARGES: (1) THEFT BY DECEPTION MICHELLE A. HOLTZAPPLE OTN: H929688-4 AFFIANT: PTL. MICHAEL COTTON IN RE: DEFENDANT PLEADS GUILTY ORDER OF COURT AND NOW, this 18th day of October, 2005, defendant having appeared and tendered a plea of guilty to Count 1, theft by deception, a felony of the third degree, the plea is accepted in full satisfaction of all charges at this term and number. A presentence investigation is ordered. Defendant is ordered to appear for sentencing on Tuesday, January 10, 200..6-,.,at 1:30 p.m. By the Court, I / Edgar E. Bayley, J. John.C. Dailey, Esquire Assistant District Attorney R.. Mark Thomas, Esquire For Defendant Probation Court Administrator Sheriff Copies mailed on, prs O C T 2 4 2005 Copies delivered on OCT 2 4 2005 cl r- p cvc< ,° x ° c-) CC M-, w 00 M ro" M 0 COMMONWEALTH OF PENNSYLVANIA V. MICHELLE A., HOLTZAPPLE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CP-21-CR-1542-2005 CRIMINAL GUILTY PLEA COLLOQUY COUNT CHARGE(S) GRADE 1 THEFT BY DECEPTION F3 2 TAMPERING WITH PUBLIC RECORDS OR INF( M2 MAXIMUM PUNISHMENT 7 Years 2 Years PLEA OF DEFENDANT J The Defendant, being advised of the offense(s) charged in the information(s) and of Defendant's rights, hereby in open court enters a plea of to the charge(s) of: / fendant Attorney for the Defendant Restitution Amount $: Restitution Paid to: Y?60chD. P EXHIBIT E COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CP-21-CR-1542-2005 CHARGES: (1) THEFT BY DECEPTION MICHELLE A. HOLTZAPPLE OTN: H929688-4 AFFIANT: PTL. MICHAEL COTTON IN RE: SENTENCE ORDER OF COURT AND NOW, this 10th day of January, 2006, being in receipt of a presentence investigation, you are sentenced to a period of Restrictive Intermediate Punishment for 60 months with one year to be served in the Work Release Program in the Cumberland County Prison to which you are committed. The balance to be served under supervision by the Cumberland County Probation Office subject to the following Restorative Sanctions: 1. Pay the costs of prosecution. 2. Make remaining restitution to Dr. Stephen. Davis in the amount of $145,429.22, Erie Insurance Company in the amount of $10,000.00, and to Pennsylvania State Bank in the amount of $6,000.00. 3. Participate in and complete any recommended evaluation and treatment. By the Court ar B. Bayley, J. John C. Dailey, Esquire Senior Assistant District Attorney R. Mark Thomas, Esquire For Defendant Probation Victim Witness CCP Sheriff ors EXHIBIT F -ILE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAVIS PULMONARY ASSOCIATES, P.C. AND STEPHEN J. DAVIS, M. D., DOCKET NO. 05-3242 Plaintiffs : V. CIVIL ACTION - LAW & EQUITY C) MICHELLE A. HOLTZAPPLE AND " GARY HOLTZAPPLE, Defendants ANSWER TO COMPLAINT AND NOW, comes Defendant, Michelle A. Holtzapple, by and through her counsel, R. Mark Thomas, Esquire, and files this answer to the complaint as follows: 1. Admitted. 2. Admitted. 3. Admitted in part. Denied in part. Although, Defendant's permanent residence is as stated, she is temporarily staying at 1100 Claremont Road, Carlisle, Pennsylvania, and is scheduled to remain there until January 10; 2007. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. 10. Admitted. It. Admitted. 12. Admitted in part. Denied in part. It is admitted that Davis so informed Michelle A. Holtzapple that she would not thereafter be signing checks as drawer/maker, but it is denied that this, in fact, happened since Davis continued to rely upon Defendant, Michelle A. Holtzapple, to draw, make and sign checks. 13. Denied for the reasons stated above. 14. Admitted in part. Denied as to the implication that Gary Holtzapple knew of these transactions. 15. Admitted in part. Denied in part. It is admitted that Michelle A. Holtzapple transferred and converted Plaintiff's property to Michelle A. Holtzapple. However, to the extent that this allegation implies that Defendant, Gary Holtzapple, was aware of these transfers and conversions, said implication is denied. 16. Denied. Defendant, Michelle A. Holtzapple, is without sufficient knowledge, information or belief to either affirm or deny the amount set forth in this allegation and, therefore, same is denied and strict proof thereof demanded at time of trial. 17. Admitted in part. It is admitted only that Michelle A. Holtzapple concealed her actions from Plaintiffs. The balance of this allegation is a conclusion of law to which no responsive pleading is required. 18. Denied. Michelle A. Holtzapple is without sufficient knowledge, information or belief to determine on what date Davis learned that she was continuing to sign checks as drawer/maker on the account in question and therefore strict proof thereof is demanded at time of trial. And further, Davis knew that Defendant, Michelle A. Holtzapple, continued to sign checks from December 2, 2002, until her last day of work. 19. Admitted. 20. Denied. Following reasonable investigation, Michelle A. Holtzapple is without sufficient knowledge, information or belief to either affirm or deny this allegation and, therefore, same is denied. 21. Denied. Following reasonable investigation, Michelle A. Holtzapple is without sufficient knowledge, information or belief to either affirm or deny this allegation and, therefore, same is denied. 22. Admitted in part. Denied in part. It is admitted that Michelle A. Holtzapple committed the actions as alleged, but to the extent that this allegation characterizes those actions on her behalf said characterizations are denied. 23. Admitted only in that Plaintiff lost the use of funds, the exact amount of which is unknown to Defendant, Michelle A. Holtzapple. 24. Denied. Following reasonable investigation, Michelle A. Holtzapple is without sufficient knowledge, information or belief to either affirm or deny this allegation and, therefore, same is denied. 25. Denied. Following reasonable investigation, Michelle A. Holtzapple is without sufficient knowledge, information or belief to either affirm or deny this allegation and, therefore, same is denied. 26. Denied. Following reasonable investigation, Michelle A. Holtzapple is without sufficient knowledge, information or belief to either affirm or deny this allegation and, therefore, same is denied. 27. Admitted. 28. Admitted in part. Denied in part. It is admitted that Defendants have reimbursed Plaintiffs the sum of $154,000.00, but it is denied that this is the total amount paid since Defendant, Michelle A. Holtzapple, has made additional restitution payments since her date of sentence on January 10, 2006. 29. Admitted that Plaintiffs are entitled to reimbursement, but it is denied that the amounts shown here are accurate. 30. Denied. This allegation is a conclusion of law to which no responsive pleading is required, and, therefore, same is denied. 31. Denied. This allegation is a conclusion of law to which no responsive pleading is required, and, therefore, same is denied. 32. Admitted. COUNT I - FRAUD 33. Answers 1 through 32, above, are incorporated herein by reference as though fully set forth at length. 34. Denied. This allegation is a conclusion of law to which no responsive pleading is required and, therefore, same is denied. WHEREFORE, Defendant, Michelle A. Holtzapple, respectfully requests this Honorable Court to direct judgment be entered in favor of Plaintiffs and against Defendant, Michelle A. Holtzapple, but only in the amount remaining due and outstanding as of the date judgment is entered. With respect to consequential damages, Defendant, Michelle A. Holtzapple, prays that this Honorable Court will enter judgment in favor of Defendant and against Davis. a COUNT II - CONVERSION - COMMON LAW 35. Answers 1 through 34, above, are incorporated herein by reference as though fully set forth at length. 36. Denied. This allegation is a conclusion of law to which no responsive pleading is required and, therefore, same is denied. WHEREFORE, Defendant, Michelle A. Holtzapple, respectfully requests this Honorable Court to direct judgment be entered in her favor and against Plaintiffs on this count. COUNT III - BREACH OF FIDUCIARY DUTY 37. Answers 1 through 36, above, are incorporated herein by reference as though fully set forth at length. 38. Denied. This allegation is a conclusion of law to which no responsive pleading is required and, therefore, same is denied. 39. Denied. This allegation is a conclusion of law to which no responsive. pleading is required and, therefore, same is denied. 40. Denied. This allegation is a conclusion of law to which no responsive pleading is required and, therefore, same is denied. 41. Denied. Defendant is without sufficient knowledge, information or belief to either affirm or deny this allegation and, therefore, same is denied and strict proof thereof demanded at time of trial. 42. Denied. This allegation is a conclusion of law to which no responsive pleading is required and, therefore, same is denied. WHEREFORE, Defendant, Michelle A. Holtzapple, respectfully requests this Honorable Court to direct judgment be entered in her favor and against Plaintiffs on this count. COUNT IV - BREACH OF EMPLOYMENT CONTRACT 43. Answers 1 through 42, above, are incorporated herein by reference as though fully set forth at length. 44. Denied. This allegation is a conclusion of law to which no responsive pleading is required and, therefore, same is denied. 45. Denied. It is denied that there was an employment contract as such is defined in Pennsylvania law. Defendant was an employee-at-will, who was compensated for performing the duties assigned to her. 46. Denied. This allegation is a conclusion of law to which no responsive pleading is required and, therefore, same is denied. 47. Denied Defendant is without sufficient knowledge, information or belief to either affirm or deny this allegation and, therefore, same is denied and strict proof thereof demanded at time of trial. 48. Denied. This allegation is a conclusion of law to which no responsive pleading is required and, therefore, same is denied. WHEREFORE, Defendant, Michelle A. Holtzapple, respectfully requests this Honorable Court to direct judgment be entered in her favor and against Plaintiffs on this count. COUNT V - STATUTORY ACTION FOR FRAUDULENT TRANSFER PURSUANT TO PA UNIFORM FRAUDULENT TRANSFER ACT (12 Pa.C.S. § 5101 et seq.) 49. Answers 1 through 48, above, are incorporated herein by reference as though fully set forth at length. 50. Denied. All assets owned by Defendant, Michelle A. Holtzapple, that were owned either in her own right or jointly with Defendant, Gary Holtzapple, remained as they were held prior to the conversion. 51. Denied. This allegation is a conclusion of law to which no responsive pleading is required and; therefore, same is denied. 52. Denied. While it has been admitted that Defendant, Michelle A. Holtzapple, transferred Plaintiffs' property for her benefit. It is denied that it was done so with the intent to hinder, delay or defraud Plaintiffs or with the intent of concealing or placing Plaintiffs' assets out of the reach of Plaintiffs. 53. (i-ii) Denied. These allegations are denied as stated to the extent that Plaintiffs believe this allegation. Defendant demands proof at time of trial. 54. Denied. Defendant has no knowledge of an alleged transfer of assets to an insider for any of the reasons set forth by Plaintiffs and demands strict proof thereof at time of trial. 55. Denied. Defendant has no knowledge of an alleged transfer of assets to an insider for any of the reasons set forth by Plaintiffs and demands strict proof thereof at time of trial. 56. Denied. This allegation is a conclusion of law to which no responsive pleading is required and, therefore, same is denied. WHEREFORE, Defendant, Michelle A. Holtzapple, respectfully requests this Honorable Court to direct judgment be entered in her favor and against Plaintiffs on this count. COUNT VI - BREACH OF IMPLIED CONTRACT 57. Answers 1 through 56, above, are incorporated herein by reference as though fully set forth at length. 58. Denied. It is denied that the parties had an employment contract, but rather Defendant, Michelle A. Holtzapple, was an employee at will who could be terminated from her employment at any time and could quit at any time without reason. The implied duty of good faith and fair dealing is a principal that applies to contracts between merchants, which this was not. 59. Denied. This allegation is denied for the same reasons as set forth in Paragraph 58. 60. Admitted in part. Denied in part. It is admitted that Plaintiff has incurred damages as a result of the conduct of Defendant, Michelle A. Holtzapple. It is denied that those damages flow from a breach of her duty of good faith and fair dealing for the reasons set forth above. Further, Defendant is without sufficient knowledge, information, or belief to either affirm or deny the amounts set forth in this allegation and , therefore, same is denied and strict proof thereof demanded at time of trial. WHEREFORE, Defendant, Michelle A. Holtzapple, respectfully requests this Honorable Court to direct judgment be entered in her favor and against Plaintiffs on this count. COUNT VII - CONSTRUCTIVE TRUST Davis Pulmonary Associates. P. C. and Stephen J. David. M. D. Y. Michelle A. Holtzapple (in the alternative) 61. Answers 1 through 60, above, are incorporated herein by reference as though fully set forth at length. 62. Admitted. 63. Denied. Whatever unreimbursed funds are outstanding, they are no longer in the possession of Defendant, Michelle A. Holtzapple, and, therefore, it is denied that she holds them in a constructive trust for Plaintiffs benefit. 64. Denied. This allegation is a conclusion of law to which no responsive pleading is required and, therefore, same is denied. 65. Admitted in part. Denied in part. While it is admitted that Defendant, Michelle A. Holtzapple, has not repaid all monies to Plaintiffs, Defendant, Michelle A. Holtzapple, has paid additional funds which reduce the amounts claimed by Plaintiffs in this paragraph. 66. Denied. This allegation is a conclusion of law to which no responsive pleading is required and, therefore, same is denied. 67. Denied. This allegation is a conclusion of law to which no responsive pleading is required and, therefore, same is denied. WHEREFORE, Defendant, Michelle A. Holtzapple, respectfully requests this Honorable Court to direct judgment be entered in her favor and against Plaintiffs on this count. COUNT VIII - UNJUST ENRICHMENT Davis Pulmonary Associates. P. C. and Stephen J. David. M. D. v Michelle A. Holtzapple (in the alternative) 68. Answers 1 through 67, above, are incorporated herein by reference as though fully set forth at length. 69. Admitted. 70. Admitted in part. Denied in part. While it is admitted that Defendant, Michelle A. Holtzapple, could be unjustly enriched if allowed to retain Plaintiff's funds, it is denied that the unjust enrichment amounts to $161,778.79, and it is also denied that the consequential damages could be considered unjust enrichment to Michelle A. Holtzapple. 71. Denied. This allegation is a conclusion of law to which no responsive pleading is required and, therefore, same is denied. 72. Denied. This allegation is a conclusion of law to which no responsive pleading is required and, therefore, same is denied. WHEREFORE, Defendant, Michelle A. Holtzapple, respectfully requests this Honorable Court to direct judgment be entered in her favor and against Plaintiffs on this count. COUNT IX - CONSTRUCTIVE TRUST Davis Pulmonary Associates. P. C. and Stephen J. Davis, M. D v. Gary Holtzapple (in the alternative) 73. Answers I through 72, above, are incorporated herein by reference as though fully set forth at length. 74.-81. These allegations pertain to a Defendant other than Defendant, Michelle A. Holtzapple, and, therefore, no responsive pleading is required. COUNT X - UNJUST ENRICHMENT (in the alternative) 82. Answers 1 through 81, above, are incorporated herein by reference as though fully set forth at length. 81-84. These allegations pertain to a Defendant other than Defendant, Michelle A. Holtzapple, and, therefore, no responsive pleading is required. Respectfully submitted, D R. Mark Thomas, Esquire Supreme Court ID No. 41301 101 South Market Street Mechanicsburg, PA 17050 (717) 796-2100 Attorney for Defendant, Michelle A. Holtzapple VERIFICATION I, MICHELLE A. HOLT7A.PPLE, hereby verify that the statements made in the foregoing Answer To Complaint 'are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unswom falsification to authorities. MIC ELLS &AHMOLTZ& DATED:--??? CERTIFICATE OF SERVICE I, R. Mark Thomas, Esquire, hereby certify that I have served a true and Corr the within document on the followin ect copy of g persons by depositing a true and correct copy of the same in the U.S. Mail at Mechanicsburg, Pennsylvania, First Class Postage pre-paid, addressed to: Hubert X. Gilroy, Esquire Broujos & Gilroy, P. C. 4 North Hanover Street Carlisle, PA 17013 David J. Foster, Esquire Costopoulos, Foster & Fields 831 Market Street P. O. Box 222 Lemoyne, PA 17043 Dated: June 9, 2006 R. Mark Thomas, Esq. CERTIFICATE OF SERVICE I, Randolph C. Reliford, Esquire hereby certify that on this z7 day of February, 2009, 1 served a true and correct copy of our Motion for Partial Summary Judgment against Michele Holtzapple and Memorandum of Law in support thereof via regular U.S. Mail upon the following: David J. Foster, Esqurie Costopolous, Foster & Fields 831 Market Street P.O. Box 222 Lemoyne, PA 17043-0222 R. Mark Thomas, Esquire 101 South Market Street Mechanicsburg, PA 17050 andolph C. Reliford, Esquire PHIL] 817215-2 . " ?-4 , t _ PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) ------------------------------------------------------------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) Davis Pulmonary Associates, P.C. and Stephen J. Davis, M.D., 1863 Center Street, Camp Hill,Cumberland County, PA 17011 V5. Michelle A. Holtzapple and Gary Holtzappl?s, 193 Atlanthia Lane, Etters, York County, PA 17 319 No. 2005-3242 Civil Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Plaintiffs' Motion for Partial Summary Judgment against Michelle Holtzapple 2. Identify all counsel who will argue cases: (a) for plaintiffs: Anthony P. Tabasso/Randolph C. Reliford (Name and Address) Klehr, Harrison, Harvey, Branzburg & Ellers, LLP, 260 S. Broad St., Phila., (b) for defendants: PA 19102 David J. Foster, Esq., 831 Market Street, P.O. Box 2229 Lemoyne, PA 17043 (Name and Address) R. Mark yhomas, Esq.., 101 S. Market St., Mechanicsburg, PA 17050 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: T,.-. Z 9nno Attorneyfor Plaintiffs Date: April 17, 2009 INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. Ranaolph C. Reliford Print your name C.A' AL ._ FILE .1",wf °Ir- OF THE 2M OR 2 1 Ail Q: 2 DAVIS PULMONARY IN THE COURT OF COMMON PLEAS OF ASSOCIATES, P.C., and CUMBERLAND COUNTY, PENNSYLVANIA STEPHEN J. DAVIS, M.D., Plaintiffs CIVIL ACTION - LAW NO. 05-3242 CIVIL VS. MICHELLE A. HOLTZAPPLE and GARY HOLTZAPPLE, Defendants IN RE: PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT BEFORE HESS AND EBERT, J.J. ORDER AND NOW, this 17' day of June, 2009, the motion of the plaintiffs for partial summary judgment as to the defendant, Michelle A. Holtzapple, is GRANTED with respect to the principal amount owed as reflected by the records of the Clerk of Courts Office. The remainder of the plaintiffs' motion for partial summary judgment is DENIED. BY THE COURT, i n Hess, J. ./ Anthony P. Tabasso, Esquire For the Plaintiffs Z-'R. Mark Thomas, Esquire For Defendant Michelle Holtzapple /avid J. Foster, Esquire For Defendant Gary Holtzapple rim (20POES mat OF 'P-Er- JUIll 17 Ali 10. 2i 2009 GGMr"s:::` F1 I D-- D7-F ICE r T1.4- ; ^T?;RY KLEHR I HARRISON I HARVEY I BRANZBURG LLP ter„ c, BY: ANTHONY P. TABASSO, ESQUIRE Li l0 FL ., c 2 k '? ; w + ATTORNEY I.D. NO. 80851 1835 MARKET STREET PHILADELPHIA, PA 19103 (215) 568-6060 ATTORNEYS FOR PLAINTIFF DAVIS PULMONARY ASSOCIATES, P.C. AND STEPHEN J. DAVIS, M.D., Plaintiff, V. CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL DIVISION MICHELLE A. HOLTZAPPLE AND GARY HOLTZAPPLE, Defendants. No. 2005-3242 PRAECIPE TO ENTER JUDGMENT TO THE PROTHONOTARY: Kindly enter a judgment against defendant Michelle Holtzapple in. the above-captioned matter pursuant to Court Orders dated January 10, 2006 and June 17, 2009, copies of which are attached hereto. You are hereby directed to assess damages against defendant Michelle A. Holtzapple in the amount of $145,429.22. HARVEY1 BY: Anthony,'. Tabasso, Esquire ASSESSMENT And Now, this o13*dday of Feb , 2010 judgment is entered as aforesaid. $ Icon Pa AT'w/ MY a.03" PHIL1 912679-1 RJR 012,'M7 . f-d ?04ft' Pro otary CERTIFICATION I hereby certify that written notice of the intention to file this praecipe is not required as judgment was entered by Court Order a copy of which is attached hereto. HARRISONI HARVEY BURG LLP By: Antlk6fiy P. abasso, Es( 1835 Marke Street Philadelphia, PA 19103 (215) 568-6060 Attorney for Plaintiff PHILI 912679-1 i COMMONWEALTH V. MICHELLE A. HOLTZAPPLE OTN: H929688-4 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CP-21-CR-1542-2005 CHARGES: (1) THEFT BY DECEPTION AFFIANT: PTL. MICHAEL COTTON IN RE: SENTENCE ORDER OF COURT AND NOW, this 10th day of January, 2006, being in receipt of a presentence investigation, you are sentenced to a period of Restrictive Intermediate Punishment for 60 months with one year to be served in the Work Release Program in the Cumberland County Prison to which you are committed. The balance to be served under supervision by the Cumberland County Probation Office subject to the following Restorative Sanctions: 1. Pay the costs of prosecution. 2. Make remaining restitution to Dr. Stephen Davis in the amount of $145,429.22, Erie Insurance Company in the amount of $10,000.00, and to Pennsylvania State Bank in the amount of $6,000.00. 3. Participate in and complete any recommended evaluation and treatment. By the,,Cou iagar B John C. Dailey, Esquire Senior Assistant District Attorney R. Mark Thomas, Esquire For Defendant Probation Victim Witness CCP Sheriff ey, J. Drs DAVIS PULMONARY IN THE COURT OF COMMON PLEAS OF ASSOCIATES, P.C., and CUMBERLAND COUNTY, PENNSYLVANIA STEPHEN J. DAVIS, M.D., Plaintiffs CIVIL ACTION - LAW NO. 05-3242 CIVIL VS. MICHELLE A. HOLTZAPPLE and GARY HOLTZAPPLE, Defendants IN RE: PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT BEFORE HESS AND EBERT, J.J. ORDER AND NOW, this 17' day of June, 2009, the motion of the plaintiffs for partial summary judgment as to the defendant, Michelle A. Holtzapple, is GRANTED with respect to the principal amount owed as reflected by the records of the Clerk of Courts Office. The remainder of the plaintiffs' motion for partial summary judgment is DENIED. BY THE COURT, 14 /4L Hess, J. ./ Anthony P. Tabasso, Esquire For the Plaintiffs .AR. Mark Thomas, Esquire For Defendant Michelle Holtzapple ,XDavid J. Foster, Esquire For Defendant Gary Holtzapple :rlm P 1 1ES /l=M i FILED'- =icE OF THE F, 2009 JUN 17 AM 10: 2 s KLEHR I HARRISON HARVEY I BRANZBURG LLP BY: ANTHONY P. TABASSO, ESQUIRE ATTORNEY I.D. NO. 80851 1835 MARKET STREET PHILADELPHIA, PA 19103 (215) 568-6060 ATTORNEYS FOR PLAINTIFF DAVIS PULMONARY ASSOCIATES, P.C. AND STEPHEN J. DAVIS, M.D., Plaintiff, V. MICHELLE A. HOLTZAPPLE AND GARY HOLTZAPPLE, Defendants. CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL DIVISION No. 2005-3242 AFFIDAVIT OF NON-MILITARY SERVICE AND OF LAST KNOWN ADDRESS STATE OF PENNSYLVANIA COUNTY OF PHILADELPHIA SS Anthony P. Tabasso, being duly sworn according to law, deposes and states that he is an attorney with the law firm of Klehr Harrison Harvey Branzburg LLP attorneys for Plaintiff, and, as such, is authorized to make this Affidavit on its behalf; and that to the best of his knowledge, information and belief, Defendants are not in the military or naval services of the United States or its allies or otherwise within the provisions of the Soldiers and Sailors Civil Relief Act of 1940 and/or its amendments; and that their address is as follows: 193 Alanthia L Etters, PA 173 Sworn to and subscribed before me this day of r4 4tJ-131-- , 2010 '. Tabasso, Esquire COMMON 19ALTH OF PENNSYLVANIA NOTARIAL SEAL ANNE M. FOODY, Notary Public City of Philadelphia, Phila. County Commission Expires February 27, 2013 PHIL] 912679-1 OFFICE OF PROTHONOTARY COURT OF COMMON PLEAS One Courthouse Square, Carlisle, PA 17013 David Buell, Prothonotary To: MICHELLE A. HOLTZAPPLE DAVIS PULMONARY ASSOCIATES, P.C. AND STEPHEN J. DAVIS, M.D., Plaintiff, V. CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL DIVISION MICHELLE A. HOLTZAPPLE AND GARY HOLTZAPPLE, Defendants. No. 2005-3242 NOTICE Pursuant to Rule 236 of the Supreme Court of Pennsylvania, you are hereby notified that a Judgment has been entered against you in the above proceeding as indicated below. P OQONOTARY Judgment by Default Money Judgment Judgment in Replevin a?iv Judgment for Possession Judgment on Award of Arbitration Judgment on Verdict X Judgment on Court Findings IF YOU HAVE ANY QUESTIONS CONCERNING THIS NOTICE, PLEASE CALL: ATTORNEY Anthony P. Tabasso, Esquire at this telephone number: (215) 568-6060 PHILI 912679-1 KLEHR I HARRISON I HARVEY I BRANZBURG LLP FILED i ; (^ BY: ANTHONY P. TABASSO, ESQUIRE I .TARY ATTORNEY I.D. NO. 80851 1835 MARKET STREET 2019 FED 22 ft (' ,?: PHILADELPHIA, PA 19103 (215) 568-6060 ATTORNEYS FO DAVIS PULMONARY ASSOCIATES, P.C. AND STEPHEN J. DAVIS, M.D., Plaintiff, V. MICHELLE A. HOLTZAPPLE AND GARY HOLTZAPPLE, Defendants. CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL DIVISION No. 2005-3242 PRAECIPE FOR WRIT OF EXECUTION TO THE PROTHONOTARY: Issue the Writ of Execution in the above matter: bau A',;, (1) Directed to the Sheriff of ounty (2) Against the Defendant(s) in the above-captioned matter: Michelle A. Holtzapple,193 Alanthia Lane, Etters, PA 17319; (3) And index this Writ against the Defendant(s) as follows: Levy on personalty at: (no levy) (4) Against the Garnishee(s): EKG Medical Billing,121 North 32"d Street, Harrisburg, PA 17111; (5) Amount Due plaintiff Interest (Costs to be added) BTAL 014.so PD A71`1 625 S 4 / i/. Do a /j:_ " y .oo ? &. sz> &Z_ ?? By: $ 145,429.22 $ 145,429.22 VEY I BRANZBURG LLP Anthon P. Tabisso, Esquire 1835 Market Street Philadelphia, PA 19103 (215) 568-6060 Attorney for Plaintiff PHILI 912679-1 `-i 8y7 WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) N02005-3242 Civil CIVIL ACTION - LAW TO THE SHERIFF Oi L)ayh ?1 P COUNTY: To satisfy the debt, interest Ind costs due Davis Pulmonary Associates, P.C. and Stephen J. Davis, M.D. Plaintiff (s) From Michelle A. Holtzapple and Gary Holtzapple (1) You are directed to levy upon the property of the defendant (s)and to sell (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of EKG Medical Billing, 121 North 32"d Street, Harrisburg, PA 17111 - garnish defendant Michelle A. Holtzapple 193 Alanthia Lane, Etters, PA 17319 GARNISHEE(S) as follows: and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof, (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due $145,429.22 Interest Atty's Comm % Atty Paid $96.50 Plaintiff Paid Date: 2/22/2010 L.L. $.50 Due Prothy $2.00 Other Costs V David b-lfue'lf, Prothonotary (Seal) By: Deputy REQUESTING PARTY: Name Anthony P. Tabasso, Esq. Klehrl Harrison] Harvey) Branzburg LLP Address: 1835 Market St. Philadelphia, PA 19103 Attorney for: Plaintiff Telephone: 215-568-6060 Supreme Court ID No. 80851 r KLEHR ~ HARRISON ~ HARVEY ~ BRANZBURG LLP BY: ANTHONY P. TABASSO, ESQUIRE ATTORNEY LD. NO. 80851 1835 MARKET STREET, SUITE 1400 PHILADELPHIA, PA 19103 (215) 569-2700 ATTORNEYS FOR PLAINTIFF DAVIS PULMONARY ASSOCIATES, P.C. AND STEPHEN J. DAVIS, M.D., Plaintiff, v. MICHELLE A. HOLTZAPPLE AND GARY HOLTZAPPLE, Defendants. CUMBERLAND COUNTY ~, ^ ; COURT OF COMMON PLEAS ~- ~=~ CIVIL DIVISION - c -~'~ -~ --, ~~ ~~, ~ No. 2005-3242 N rte.' -o _ ~, ~ __ w ,. , PLAINTIFFS' ANSWER TO DEFENDANTS' MOTION TO RECONSIDER Plaintiffs, Davis Pulmonary Associates, P.C., and Stephen J. Davis, M.D., by and through their undersigned counsel, hereby file this Answer to Defendants' Motion to Reconsider, and in support thereof, avers as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted, in part, denied in part. It is admitted that Defendant Michele Holtzapple was directed to make restitution to the Plaintiffs in the amount of $145,429.22. The remaining allegations in paragraph 4 make reference to written documents, terms of which speak for themselves, and Defendants' chartacterization of which are denied. 5. Denied. The allegations contained in paragraph 5 constitute conclusions of law to which no response is required and, therefore, deemed denied. 6. Admitted. PHIL 1 1173299-1 ~ 7. Denied. The allegations contained in paragraph 7 constitute conclusions of law to which no response is required and are, therefore, deemed denied. By way of further answer, but not in derogation of the foregoing, the Plaintiffs' judgment is based entirely on the criminal court Order, and that Order formed the basis of this Court's decision to grant summary judgment in the Plaintiffs' favor in this civil action. 8. Admitted. 9. Admitted. 10. Admitted in part, denied in part. It is admitted that the Defendant filed a claim for exemption. To the extent the remaining allegations in paragraph 10 imply that the Plaintiffs' wage execution is issued upon a civil judgment that has no relation whatsoever to the Defendant's criminal restitution obligations, such allegations constitute conclusions of law to which no response is required and are, therefore, deemed denied. By way of further answer, but not in derogation of the foregoing, Plaintiffs' civil judgment is based entirely upon the Defendant's restitution obligation. 11. Admitted. 12. Admitted. 13. Denied. The allegations contained in paragraph 13 constitute conclusions of law to which no response is required and are, therefore, deemed denied. By way of further answer, but not in derogation of the foregoing, the execution issued in this case still arises from an Order entered by a Court in the criminal proceeding. The exemptions listed in 42 Pa.C.S.A. ~ 8127 apply solely to civil matters and the statute appears in Part VII of Title 42 of Pennsylvania Consolidated Statutes, entitled "Civil Actions and Proceedings." The Defendant has not explained how civil execution would issue on a criminal order other than has happened in this case. 14. Denied. The allegations contained in paragraph 14 constitute conclusions of law to which no response is required and are, therefore, deemed denied. By way of further answer, but not PHIL 11173299-1 ' in derogation of the foregoing, the execution issued in this case still arises from an Order entered by a Court in the criminal proceeding. The exemptions listed in 42 Pa.C.S.A. ~ 8127 apply solely to civil matters and the statute appears in Part VII of Title 42 of Pennsylvania Consolidated Statutes, entitled "Civil Actions and Proceedings." The Defendant has not explained how civil execution would issue on a criminal order other than has happened in this case. 15. Denied. The allegations contained in paragraph 15 constitute conclusions of law to which no response is required and are, therefore, deemed denied. By way of further answer, but not in derogation of the foregoing, although the Defendant seeks reconsideration of the Court's July G, 2010 Order, the Defendants have done nothing more than re-argue the issues they presented to the Court at the June 30, 2010 argument. The Defendants' Motion fails to set forth any new law or facts that would merit reconsideration. Accordingly, the Motion should be denied in its entirety. WHEREFORE, Plaintiffs, Davis Pulmonary Associates, P.C. and Steven J. Davis, M.D., respectfully request that this Court deny the Defendants' Motion to Reconsider in its entirety. HARRISON HARVEY :BURG LLP By: An~liony P. Tabasso, Esquire 1$35 Mark t Street, Suite 1400 Philadelphia, PA 19103 (215) 569-2700 Attorneys for Plaints PHIL 1 1173299-1 CERTIFICATE OF SERVICE I, Anthony P. Tabasso, Esquire hereby certify that on this ~ day of July, 2010, I served a true and correct copy of Plaintiffs' Answer to Defendants' Motion to Reconsider via regular U.S. Mail upon the following: David J. Foster, Esquire Costopolous, Foster & Fields 831 Market Street P.O. Box 222 Lemoyne, PA 17043-0222 R. Mark Thomas, Esquire 101 South Max' Mechanicsburg PHIL 1 1173299-1