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HomeMy WebLinkAbout05-3243 DAVIS PULMONARY ASSOCIATES, P.C. and STEPHEN J. DAVIS, M.D., Plaintiffs VS. PENNSYLVANIA STATE BANK, Defendant TO THE PROTHONOTARY: : IN THE COURT OF COMMON PLEAS : CUMBERLAND CO., PENNSYLVANIA NO. 2005- 302 cj 3 C? . Please issue a Writ of Summons in favor of the above-name Plaintiffs against the above-named Defendant. DATE: June 24, 2005 az- L_ Hubert X. Gilmer , Esquire Broujos &?flroy, P.C. an c,\ U c ui T 7 i;] DAVIS PULMONARY ASSOCIATES, P.C. and STEPHEN J. DAVIS, M.D., Plaintiffs VS. PENNSYLVANIA STATE BANK, 2148 Market Street, Camp Hill, PA 17011 Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND CO., PENNSYLVANIA : NO. 2005- 3,? 413 PRAECIPE TO THE PROTHONOTARY: Please issue a Writ of Summons in favor of the above-name Plaintiffs against the above-named Defendant. DATE: June 24, 2005 aIZ17- uX. Cji roy, Esquire Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, PA 17013 (717) 2434-4574 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. 05-3243 In CivilAction-Law PENNSYLVANIA STATE BANK 2148 MARKET STREET CAMP HILL, PA 17011 Defendant To PENNSYLVANIA STATE BANK, 2148 MARKET STREET, CAMP HILL, PA 17011 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) CURTIS R. LONG Prothonotary Date June 27, 2005 By c4x. J. Deputy 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 and STEPHEN J. DAVIS, MD Plaintiffs V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 05-3243 PENNSYLVANIA STATE BANK, CIVIL ACTION -LAW Defendant PRAECIPE TO FILE COMPLAINT TO THE PROTHONOTARY: Please enter a Rule upon Plaintiff to file a Complaint within 20 days hereof or suffer the entry of a Judgment of Non Pros. Dated: August 4, 2005 By <zift KO 4'JQW CAM J voboda McMaster, Esqu re # 84400 1 97 'ommercial Avenue Ea etersburg, PA 17520-0038 (717) 735-4908 Attorney for Defendant RULE TO FILE COMPLAINT AND NOW, this Y ay of August, 2005, a Rule is hereby granted upon Plaintiff to file a Complaint herein within 20 days after service hereof or suffer the entry of a Judgment of Non Pros. . O Prothonotary CERTIFICATE OF SERVICE I, Jean Svoboda McMaster, Esquire, Vice President and General Counsel for Sterling Financial Corporation, hereby certify that I served a true and correct copy of the foregoing Praecipe and Rule to File Complaint on this date by depositing a copy of the same in the possession of the United States mail, first-class, postage prepaid, addressed as follows: Hubert X. Gilroy, Esquire BROUJOS & GILROY PC 4 North Hanover Street Carlisle, PA 17013 STERLING FINANCIAL CORPORATION Dated: August 4, 2005 By <,-IM VA M f.?gk, Jr voboda McMaster, Esquire # 84400 V97 East Commercial Avenue Petersburg, , PA 17520-0038 (717) 735-4908 `Y CY, Lin 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 - 3243 V. PENNSYLVANIA STATE BANK, Defendant 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 (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 717-249-3166 (-?) _ 09? Date Hubert X. Gilroy, E uire Supreme Court I. No. 29943 Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, PA 17013 (717) 243-41574 (Attorney for Plaintiffs) 1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAVIS PULMONARY ASSOCIATES, P.C. and STEPHEN J. DAVIS, M.D., DOCKET NO. 05 - 3243 Plaintiffs V. . CIVIL ACTION - LAW & EQUITY PENNSYLVANIA STATE BANK, Defendant COMPLAINT Plaintiffs, Davis Pulmonary Associates, P.C. and Stephen J. Davis, M.D., by and through their attorneys, Broujos & Gilroy, P.C. aver as follows: 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 Pennsylvania State Bank, a Pennsylvania financial institution organized and existing under the laws of the Commonwealth of Pennsylvania having a principal place of business at 2148 Market Street, Camp Hill, Cumberland County, PA 17011 (hereinafter, the "Bank"). 4. Davis is the principal physician, shareholder, director and officer of Pulmonary Associates. 5. For all times pertinent to this cause of action, Pulmonary Associates held, inter alia, a checking account bearing account number 15109440 (hereinafter the "Account") with the Bank. 6. For a period of time until December 5, 2002, Michelle A. Holtzapple (hereinafter, "Holtzapple"), was an employee of Pulmonary Associates and was authorized to sign checks, as drawer/maker, which were drawn against: the Account. On December 5, 2002, Davis informed the Bank that, upon the advice of Pulmonary Associates' accountant due to concerns of inappropriate expenditures from the Account, no one other than Davis would be thereafter authorized to sign checks, as drawer/maker, which were drawn against the Account. 8. On December 5, 2002, Davis specifically informed the Bank that Holtzapple was no longer authorized to sign checks, as drawer/maker, which were drawn against the Account, and that the Bank was not to accept any checks against the Account signed by Holtzapple as drawer/maker and that Holtzapple was authorized only to transfer funds between Pulmonary Associates' accounts and to obtain information about said accounts. 9. The Bank assured, promised, represented and warranted to Davis that no checks thereafter signed by Holtzapple, as drawer/maker, drawn against the Account would be honored by the Bank. 10. The Bank prepared a written document evidencing Davis's directive and the Bank's agreement, which the Bank asked Davis to execute on behalf of Pulmonary Associates. A true and correct copy of said document is attached hereto, marked as Exhibit "A", and it is incorporated herein by reference. 11. Despite the Bank's assurances, representations and promises to not accept any checks drawn against the Account and signed by anyone other than Davis as drawer/maker, unbeknownst to Plaintiffs, the Bank continued to honor checks drawn against the Account which were signed by Holtzapple, as drawer/maker, after December 5, 2002. A list of said checks are as follows (hereinafter the "Checks"): Date Number Amount 277an-03 3248 $2,500.00 13-Feb-03 3275 $3,360.80 14-Mar-03 3318 $3,000.00 02-Apr-03 3356 $3,000.00 09-May-03 3404 $5,500.00 15-May-03 3425 $500.00 30-May-03 3451 $5,000.00 12-Jun-03 3453 $2,000.00 10-Jul-03 3501 $5,500.00 10-Jul-03 3502 $2,000.00 11-Aug-03 3558 $5,500.00 11-Aug-03 3559 $2,500.00 30-Sep-03 3646 $5,000.00 30-Sep-03 3647 $2,000.00 28-Oct-03 3662 $2,000.00 03-Nov-03 3691 $2,000.00 11-Dec-03 3741 $1,000.00 11-Dec-03 3742 $1,000.00 09-Jan-04 3786 $1,000.00 14-Jan-04 3805 $4,500.00 264an-04 3806 $1,444.78 29-Jan-04 3825 $1,000.00 30-Jan-04 3827 $3,000.00 26-Feb-04 3866 $900.00 27-Feb-04 3865 $4,000.00 30-Mar-04 3939 $4,000.00 15-Apr-04 3959 $1,000.00 11-Jun-04 4031 $5,000.00 14-Jun-04 4032 $3,000.00 15-Jul-04 4101 $3,000.00 15-Jul-04 4100 $5,000.00 13-Aug-04 4127 $3,000.00 13-Aug-04 4126 $5,150.00 27-Aug-04 4142 $5,100.00 15-Sep-04 4182 $4,800.00 01-Oct-04 4205 $5,490.00 28-Oct-04 4254 $3,549.00 28-Oct-04 4255 $2,500.00 29-Nov-04 4282 $5,150.00 10-Jan-05 4347 $6,750.00 4 24-Feb-05 4409 $6,000.00 TOTAL $137,694.58 12. The Checks were not properly payable by the Bank. 13. The Bank was placed on specific notice to not. honor checks signed by Holtzapple, as drawer/maker, however, in spite of such notice by Davis, the Bank honored the Checks anyway. 14. Despite the fact that the Checks were not properly payable, contrary to Davis's explicit instructions to the Bank to not pay such checks, in breach of the Bank's agreement and duty not to do so, and contrary to the Bank's assurances, promises, representations and warranties that the Bank would not do so, the Bank paid the Checks to Holtzapple. 15. Apparently, the Bank completely disregarded Davis's directive and never intercepted any check signed by Holtzapple as drawer/maker after December 5, 2002. 16. By its actions, the Bank allowed Holtzapple to convert funds of Pulmonary Associates to her own illegal use by Holtzapple's drawing the Checks against the Account, endorsing the Checks and accepting the proceeds therefrom, while not being entitled to do so. 17. On or about March 18, 2005, Davis discovered that Holtzapple was continuing to sign checks, as drawer/maker, against the Account, at which time, Davis immediately notified the Bank of Holtzapple's actions. 18. Davis stopped payment on check number 4434, which was signed by Holtzapple as drawer/maker, dated March 15, 2005 and drawn against the Account in the amount of $4,350.57. 19. All other checks signed by Holtzapple as drawer/maker after December 5, 2002 and drawn against the Account as noted in Paragraph 11, supra, were honored by the Bank and paid to Holtzapple, contrary to the Bank's obligation not to do so. 20. Plaintiffs demanded repayment of the $137,694.58 improperly paid by the Bank to Holtzapple, however, the Bank repaid Davis only the sum of $6,000.00 for said check number 4409, claiming that Plaintiffs had only thirty (30) days after the statement date for the Account to bring such information to the attention of the Bank, otherwise, the Bank claimed that Plaintiffs waived any claims against the Bank for improper payment of a check. 21. Plaintiffs were not informed by the Bank that Davis should monitor statements for the Account for improper payment of checks drawn against the account by Holtzapple; to the contrary, on December 5, 2002, the Bank assured Davis that the Bank would see that no checks against the Account would be honored which were signed by anyone other than Davis as drawer/maker, specifically, by 111oltzapple. 22. Plaintiffs reasonably and foreseeably relied upon the Bank's assurances, promises, representations, and warranties that the Bank would ensure that no checks signed by Hotlzapple as drawer/maker against the Account would be honored and paid after December 5, 2002. 23. At all times after December 5, 2002, the Bank was obligated to Plaintiffs to honor only checks against the Account which were signed by Davis as drawer/maker and to not pay checks signed by Holtzapple as drawer/maker. 24. Reasonably and foreseeably relying upon the Bank's representations, Davis did not scrutinize bank statements for the Account. 25. The Bank's actions in honoring and paying the Checks were committed in the absence of ordinary care and good faith, and were contrary to reasonable and acceptable commercial practices. 26. The Bank's actions in honoring and paying the Checks were reckless, outrageous and committed with absolutely no regard for Plaintiffs' rights and financial welfare. 27. The Bank's actions in honoring and paying the Checks were committed in bad faith and with no legal justification or defense whatsoever. 28. The Bank's refusal to reimburse Plaintiffs for the funds paid from the Account is without privilege or legal justification and has caused Plaintiffs loss of use of said funds, interest thereon, and significant attorney's fees and costs incurred in seeking redress through the filing and prosecution of the instant action. 29. The Bank is liable to Plaintiffs and owes Plaintiffs the sum of $131,694.58 in funds paid by the Bank from the Account, plus interest Plaintiff would have earned on the funds, for the Checks signed by Holtzapple as drawer/maker and improperly honored after December 5, 2002 and which have not been reimbursed by the Bank. 30. The amount sought by Plaintiffs exceeds $25,000.00, the amount requiring compulsory arbitration in Cumberland County. COUNT I - BREACH OF EXPRESS CONTRACT - COMMON LAW 31. Paragraphs 1 through 30, above, are incorporated herein by reference as though textually set forth at length. 32. On December 5, 2002, the Bank entered into an enforceable agreement with Davis and Pulmonary Associates, evidenced by Exhibit "A" hereto, that the Bank would not honor any check signed by anyone other than Davis, as drawer/maker, and that the Bank would specifically dishonor any check signed by Holtzapple as drawer/maker (hereinafter "Agreement"). 33. The Bank breached the Agreement each and every time the Bank honored a check signed by Holtzapple as drawer/maker after December 5, 2002, some 41 times as more specifically noted in Paragraph 11, above, which is incorporated herein by reference. 34. As a direct result of the Bank's aforesaid breaches of the Agreement, Plaintiffs have incurred damages in the nature of the loss of a significant amount of Pulmonary Associates' funds, in the amount of $131,694.58, as well as interest on the funds. WHEREFORE, Plaintiffs respectfully request your Honorable Court direct judgment be entered in favor of Plaintiffs and against Defendant in the amount of $131,694.58, plus pre and post judgment interest as allowed by law, costs of suit, and any other relief deemed just by the Court. COUNT II - BREACH OF IMPLIED CONTRACT - COMMON LAW 35. Paragraphs 1 through 34, above, are incorporated herein by reference as though textually set forth at length. 36. Every contract imposes upon the parties an implied duty of good faith and fair dealing. 37. The Bank breached its duty of good faith and fair dealing to Plaintiffs by its actions. 38. As a direct result of the Bank's breach of its duty of good faith and fair dealing, Plaintiffs have incurred damages in the nature of the loss of a significant amount of Pulmonary Associates' funds, in the amount of $131,694.58, as well as interest on the funds. WHEREFORE, Plaintiffs respectfully request your :Honorable Court direct judgment be entered in favor of Plaintiffs and against Defendant in the amount of $131,694.58, plus pre and post judgment interest as allowed by law, costs of suit, and any other relief deemed just by the Court. COUNT III - BREACH OF DEPOSIT AGREEMENT PURSUANT TO THE U.C.C. (13 Pa.C.S. 4 1101, et sea.) (in the alternate) 39. Paragraphs 1 through 38, above, are incorporated herein by reference as though textually set forth at length. 40. On December 5, 2002, the Bank and Plaintiffs modified the parties deposit agreement, as evidenced by Exhibit "A" hereto, that the Bank would not honor any check signed by anyone other than Davis, as drawer/maker, and that the Bank would specifically dishonor any check signed by Holtzapple as drawer/maker. 41. The Bank breached its deposit agreement with Plaintiffs each and every time the Bank honored a check signed by Holtzapple as drawer/maker after December 5, 2002, some 41 times as more specifically noted in Paragraph 11, above, which is incorporated herein by reference. 42. As a direct result of the Bank's aforesaid breaches of the deposit agreement, Plaintiffs have incurred damages in the nature of the loss of a significant amount of Pulmonary Associates' funds, in the amount of $131,694.58, as well as interest on the funds. WHEREFORE, Plaintiffs respectfully request your Honorable Court direct judgment be entered in favor of Plaintiffs and against Defendant in the amount of $131,694.58, plus pre and post judgment interest as allowed by law, costs of suit, and any other relief deemed just by the Court. COUNT IV - CONVERSION - PURSUANT TO THE U.C.C. (13 Pa.C.S. 4 1101, et seq.) (in the alternate) 43. Paragraphs 1 through 42, above, are incorporated herein by reference as though textually set forth at length. 44. The Bank converted the property of Pulmonary Associates when the Bank made payment on the Checks as noted in Paragraph 11, supra, as Holtzapple was not an authorized signatory on the Account and was not entitled to endorse said checks, therefore, the Checks were not properly payable. 45. When the Bank paid funds from the Account: on checks signed by Holtzapple after December 5, 2002, it allowed Holtzapple to misappropriate and dissipate Plaintiffs' funds. 46. As a direct result of the Bank's payment of the Checks to Holtzapple, Plaintiffs have been deprived of property and incurred damages in the nature of the loss of a significant amount of Pulmonary Associates' funds, in the amount of $131,694.58, as well as interest Plaintiffs would have earned on the funds. 47. The Bank converted Plaintiffs' property with no legal justification or privilege to do so. 48. The Bank's refusal to reimburse Plaintiffs for the funds paid from the Account is without privilege or legal justification and have caused Plaintiffs loss of use of said funds, interest thereon, and significant attorney's fees and costs incurred in seeking redress through the filing and prosecution of the instant action. 10 WHEREFORE, Plaintiffs respectfully request your ]Honorable Court direct judgment be entered in favor of Plaintiffs and against Defendant in the amount of $131,694.58, plus pre and post judgment interest as allowed by law, costs of suit, attorney's fees as allowed by law, and any other relief deemed just by the Court. COUNT V - CONVERSION - COMMON LAW (in the alternate) 49. Paragraphs 1 through 48, above, are incorporated herein by reference as though textually set forth at length. 50. The Bank converted Plaintiffs' property with no legal justification or privilege to do so. WHEREFORE, Plaintiffs respectfully request your Honorable Court direct judgment be entered in favor of Plaintiffs and against Defendant in the amount of $131,694.58, plus pre and post judgment interest as allowed by law, costs of suit, attorney's fees as allowed by law, and any other relief deemed just by the Court. COUNT VI - PROMISSORY ESTOPPEL (in the alternate) 51. Paragraphs 1 through 50, above, are incorporated herein by reference as though textually set forth at length. 52. On December 5, 2002, the Bank promised and represented to Davis that the Bank would not honor any check signed by Holtzapple as drawer/maker, which were drawn on the Account. 53. Davis relied upon the Bank's said promises and representations, and expected that no checks would be honored which were signed by anyone other than Davis, as drawer/maker, especially Holtzapple. 11 54. Relying on the Bank's representations, Davis did not scrutinize bank statements for the Account. 55. Plaintiffs' reliance upon the Bank's promises and representations was reasonable and foreseeable. 56. As a direct and proximate result of Davis's reliance upon the Bank's said representations, Davis was harmed and suffered significant damages, as Holtzapple illegally drew checks against the Account which were illegally and improperly honored by the Bank, causing a misappropriation of Plaintiffs' funds in the amount of $131,694.58, plus interest that Plaintiffs would have earned on the funds. WHEREFORE, Plaintiffs respectfully request your Honorable Court direct judgment be entered in favor of Plaintiffs and against Defendant in the amount of $131,694.58, plus pre and post judgment interest as allowed by law, costs of suit, and any other relief deemed just by the Court. COUNT VII - BREACH OF FIDUCIARY DUTY (in the alternate) 57. Paragraphs 1 through 56, above, are incorporated herein by reference as though textually set forth at length. 58. The Bank was Plaintiffs' fiduciary, as agent for Plaintiffs, as to the Account and the funds held therein. 59. As Plaintiffs' fiduciary, the Bank was obligated to properly care for and protect Plaintiffs' funds, paying only checks which were properly payable and, specifically but not limited to, not paying checks signed by Holtzapple as drawer/maker after December 5, 2002. 12 60. The Bank breached its fiduciary duty to Plaintiffs by paying the checks more fully described at Paragraph 11, supra, which is incorporated herein by reference as though textually set forth at length. 61. The Bank's actions were committed, at minimum, negligently, with a lack of ordinary care, contrary to generally accepted commercial practices and in bad faith. 62. As a direct and proximate result of the Bank's breach of its fiduciary duty, Plaintiffs have incurred damages in the nature of the loss of a significant amount of Pulmonary Associates' funds, in the amount of $131,694.58., as well as interest Plaintiffs would have earned on the funds. 63. The Bank is liable to Plaintiffs for said breach of its fiduciary duty. WHEREFORE, Plaintiffs respectfully request your Honorable Court direct judgment be entered in favor of Plaintiffs and against Defendant in the amount of $131,694.58, plus pre and post judgment interest as allowed by law, costs of suit, and any other relief deemed just by the Court. COUNT VIII - NEGLIGENCE (in the alternate) 64. Paragraphs 1 through 63, above, are incorporated herein by reference as though textually set forth at length. 65. The Bank had a legally recognized duty to properly care for Plaintiffs' funds and to only honor checks which were properly payable. 66. After December 5, 2002, the Bank assumed and accepted a duty to not pay checks signed by Holtzapple as drawer/maker which were drawn against the Account. 67. The Bank breached its said duties to Plaintiffs by paying checks from the Account which were not properly payable, which checks are more specifically described in 13 Paragraph 11, supra, which is incorporated herein by reference as though textually set forth at length. 68. The Bank's actions were committed, at minimum, negligently, with a lack of ordinary care, contrary to generally accepted commercial practices and in bad faith. 69. As a direct and proximate result of the Bank's breach of its said duties, Plaintiffs have incurred damages of the loss of a significant amount of Pulmonary Associates' funds, in the amount of $131,694.58, as well as interest Plaintiffs would have earned on the funds. 70. The Bank is liable to Plaintiffs for said damages. WHEREFORE, Plaintiffs respectfully request your Honorable Court direct judgment be entered in favor of Plaintiffs and against Defendant in the amount of $131,694.58, plus pre and post judgment interest as allowed by law, costs of suit, and any other relief deemed just by the Court. COUNT IX - CONSTRUCTIVE TRUST (in the alternate) 71. Paragraphs 1 through 72, above, are incorporated herein by reference as though textually set forth at length. 73. In the event that it is judicially determined tb at Plaintiffs have no cognizable or actionable cause as averred above, Plaintiffs will have no full and adequate remedy at law. 74. The Bank held Plaintiffs' funds in a constructive trust for Plaintiffs' benefit. 75. As constructive trustee, Bank was required to pay funds from the Account only on checks drawn by Davis after December 5, 2002. 14 76. The Bank breached its duty as constructive trustee by honoring checks against, and paying funds from, the Account which were drawn by Holtzapple, as drawer/maker, as noted above and more specifically noted in Paragraph 11, supra, which is incorporated herein by reference as though textually set forth at length. 77. Plaintiffs have been directly and proximately harmed by the Bank's improper actions as constructive trustee, as funds which should have been applied to Plaintiffs' use and benefit have been improperly paid to Holtzapple. 78. The Bank is liable to Plaintiffs for the Bank's breach of the Bank's duties and obligations as constructive trustee. 79. 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 $131,694.58, plus pre and post judgment interest as allowed by law, costs of suit, and any other relief deemed equitable by the Court. Respectfully Submitted, BROUJOS & GILROY, P.C. c/-C?) -0f Date By: Hu ert Gil Esquire Supreme C rt I.D. No. 29943 4 North nover Street Carlisle, PA 17013 (717) 2434574 (Attorney for Plaintiffs) 15 80d G68b SEL LTL:W0113 ,RO'd -1H10l AHVKOW'llld SIAVU:O.I ZE:TT GO-ZT-'b0 Pepriosy,vania State Bank Prepared By: Date: Completed By Date: Account Number 1 Account Number 2 New Ac?cWtt or other Related Accounts C) ?) ainteria'n ( (J dr -+ I iodividual Account I. ) YA'Iransfcr To Minors Act ] ] Note Pruptict., iliip I (kganivstiun Not For Profit ( ] Joiw Account Wall Serv-,iihip f 1 Fs to AcrAunt 1 Parbmrshi lr j ] Onv't / Public Fund, f ] Joint TENEN I' (IIUSUand r with nnly) I f IRA I SZP II=tc I or Prnfn 1 Other I ] In trust For Account TI[Ie A. It Is Tu Appear On Staltamenl Name Line 1: Din ? )I A i\? (\a , S LC- (.4 iNerne Linz 2: Name Line 3= Primary Address - Lute 1: secondary Address - Line 1: Address Line 2: Address Line 2: City_ ?\ \ State: P? 7rp: I I? City+: State 717 SSN / ERv_ _ ' a `I f I `3 'Type: ff blantc) SSN / BTN_ -fype: t? or blank) Horne Phone: (. ) Home -Phone.-( ) Gr? $uSinCSS Phone: EXT # l? BnsilleSS Phone: ( ) E)Cr # Birds Date: M F O (cimlc one) EuthDate: M F O (circle one) Financial Ccater/1 C; i Offcc j ?I.t ( `?•? Employee: Y Finsncia Center 019icer: Employee: Y N Occupation/ Employer: Occupation+Emp]Dyer: Identification Type, Number and Expiration IdcndScatiort Type, Ntianber and Expiration Fax #: { ) Celhdar #: ( ) Fax a: ( ) Cellular #: ( ) E-Mail Address: -1 1;-Mail Address: By signing below I certify under penalties of perjury the statements checked arc corrael. The undersigned a;9ec(s) to the terms stated on the front of the form and acknowledge(s) receipt or at least one copy on the date siased. ?.. ( r+n . 1 /91,? w •? _ /")) mo AXPAYER LD.NUM$HR- Undapenalties ofperjury, lcertify that the number provided on this form is true, correct and complete. /? + tl „?? Lt?l! j? tif-.- tif th t T U l i f I y perjury. cer a ax- t es o a nder pena [ ] NUMBER Rq- QESTGD- Signature Title Date payer I. D. Number !tag not been issued to me, and that I mailcd m delivered an application for a number to the appropriate IRS or Social security Administration Office (or ( intend to malt or deliveran apphur;on Signature Title Datc in the near future). I understand that if 1 do not provide a number to the bank witlt:n 60 days, the bank i5 required to withhold 20 percent ofall 1 reportable payments thereafter made to me until I provide a number. Signature Title Date [ CKUP'WITHHOLDING- I am not subiect. to backup withholding, either because I have not been notified that I am subject to backup withholding as a result of a feiltu to report any interest J dividends, Or the Internal KtrAciuc Signature Title Patc Service has notified me that I am no longer subject to backup Widl]lolding. [ ] EXEMPT RECTIENT- 1 am an exempted recipient under the Intcmal Revenue Service regulations, Signature Title Date i l9ISCLOSURE STATEMENT -I acknowledge receiving a copy of the ! account terms and toadipons distlosum Number of Signatures Required for Withdrawal: CIF Level IMestsages (To Be Displayed On All Accounts) Contact Cheat Systems Now - lleri& on Back! EX irafion: (h,CLL)J? EXHIIBIT I , ^4, -4- it 8 H f`--. 8G_1'd SEot S-1L LTL -lHIUNHNIil nN SBEZ-FT-6dH 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 - 3243 V. PENNSYLVANIA STATE BANK, Defendant 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. Q-a-05 Date 94p#0 j3a* 1) Stephe J. Davis, M.D. 16 IN THE COURT OF COMMON ]PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAVIS PULMONARY ASSOCIATES, P.C. and STEPHEN J. DAVIS, M.D., Plaintiffs V. PENNSYLVANIA STATE BANK, Defendant DOCKET NO. 05 - 3243 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: Jean Svoboda, Vice President and General Counsel Sterling Financial Corporation 1097 Commercial Avenue P.O. Box 38 Mail Code: 294-953 East Petersburg, PA 17520 (Attorney for Defendant) Date al' Hubert X. Gilroy squire Supreme Cour .D. No. 29943 Broujos & Gi oy, P.C. 4 North Hanover Street Carlisle, :PA 17013 (717) 243-4574 (Attorney for Plaintiffs) 17 r., ca .a l ?n N7 }) W 44% Davis Pulmonary Associates vs Caac No. 2005-3243 Pennsvlvania State Bank Statement of Intention to Proceed To the Court: Davis Pulmonary Associates intends to pl=4 wi t the above owed matter. Print NameAnthony P. Tabasso Sign Name Randolph C. Reliford Date: 10/23/08 AttomeyforDayis Pulmonary Associates Upli matary Comment The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the twmination of inactive uses and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit comment. L Rule of dvil Procedure New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive awes within the scope of the Pennsylvania Rules of Civil Proeedum The termination of these cases for inactivity was previously governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting local rules. 'T'his rule was promulgated in response to the decision of the Supreme Court in Shop v. Eagle, 551 Pa. 360,710 A.2d 1104 (1998) in which the court held that "prejudice to the defeendant as a result of delay in prosecution is required before a case may be dismissed punauant to local rules implementing Rule of Judicial Adnizinist ation 1901." Rule of Judicial Administration 1901(b) has been amended to accommodate the new rule of civil procedure. The general policy of the prompt disposition of nutters set forth in subdivision (a) of that rule continues to be applicable. 11 Inacdve Crier The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system, The process is initiated by the court. After giving notice of intent to terminate an action for inactivity, the course of the procedure is with the parties. If the parties do not wish to pursue the cane, they will take no action and "the Prothonotary shall enter an order as of course terminating the matter with prejudice for ikilum to prosecute." If a party wishes to pursue the nutter, he or she will, file a notice of intention to proceed and the action shall continue, a. Where the action has bean terminated If the action is terminated when a party believes that it should not have been terminated, that party may proceed under Rule230(d) for relief from the order of termination. An example of such an occurrence might be the termination of a viable action when the aggrieved party did not receive the notice of intent to terminate and thin did not timely file the notice of intention to proceed. The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of the entry of the order of termination on the docket, subdivision (d)(2) provides that the court must grant the petition and reinstate the action. If the petition is filed later than the thirty-day period, subdivision (d)(3) requires that the plaintiff must make a show in to the court that the petition was promptly filed and that there is a reasonable explanation or legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of termination on the docket and for the failure to file the petition within the thirty-day period under subdivision (dx2). B. Where jAe action has not been terminated An action which has not bear tenrnated but which continues upon the filing of a notice of Intention to proceed may have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a common law non pros which exits independently of termination under Rule 230.2. O , Q LT : X- . P --4 F -ra CO 1D. avid D. Bueff Trothonotary KirkS. Sohonage, ESQ„ Sohicitor 0 v Renee X Simpson I" Deputy Prothonotary z? r o; Irene E. Morrow 2"d Deputy Prothonotary Office of the Prothonotary Cum6erfand County, Pennsylvania OS- 3Zq.3 CIVILTERM ORDER OF TERMINATION OF COURT CASES AND NOW THIN 25T" DAY OF OCTOBER, 2011, AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R.C.P 230.2 BY THE COURT, DAVID D. BUELL PROTHONOTARY One Courthouse Square 9 Suite 100 • Carhs(e, PN 17013 • (717) 240-6195 9 Fa.X (717) 240-6573