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Home My WebLink About05-3555 ELIZABETH NOT ARFRANCESCO, Plaintiff, v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 05 - :3 '{!{":) ~ Iu-. ANTHONY D. NOT ARFRANCESCO, CIVIL ACTION _ LAW (An Individual) and : JURY TRIAL DEMANDED SOVEREIGN BAN CORP AND SOVEREIGN BANK, (A Corporation) Defendant. NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITHIN INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAYBE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 2 Liberty A venue Carlisle, Pennsylvania 170 I 3 (717) 249-3166 MEYERS, OESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET. P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 ELIZABETH NOT ARFRANCESCO, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VANIA v. :No. Os- 35 S:; ~ T~ : CIVIL ACTION - LAW ANTHONY D. NOTARFRANCESCO, (An Individual) and SOVEREIGN BANCORP AND SOVEREIGN BANK, (A Corporation) : JURY TRIAL DEMANDED Defendants. COMPLAINT AND NOW, comes the Plaintiff, Elizabeth Notarfrancesco, by and through her attorneys, Meyers, Desfor, Saltzgiver & Boyle, and files the following Complaint, and in support thereof, avers as follows: I. Plaintiff is Elizabeth Notarfrancesco, an adult individual residing in Cumberland County, Pennsylvania (hereinafter "Plaintiff'). 2. Defendant, Anthony D. Notarfrancesco (hereinafter "Defendant Notarfrancesco"), is an adult individual who previously resided in Cumberland County, Pennsylvania and now resides in Baltimore, Maryland. 3. Plaintiff s cause of action against Defendant N otarfrancesco arose in Cumberland County, Pennsylvania. 4. Defendant, Sovereign Bancorp and Sovereign Bank (hereinafter "Defendant Sovereign"), is a corporation which regularly conducts business in Cumberland County, Pennsylvania. MEYERS, DESFOA. SALTZGIVER & BOYLE 410 NORTH SECOND STREET. P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 ELIZABETH NOT ARFRANCESCO Plaintiff : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 05-3555 CIVIL TERM ANTHONY D. NOTARFRANCESCO (an individual) and COMMERCE BAl'<'K AND PENNSYLVANIA COMMERCE BANCORP, INC. (a corporation) Defendants : CIVIL ACTION - LAW PRAECIPE To The Prothonotary: Please withdraw the Motion for Protective Order filed in the above-captioned matter by Defendant, Anthony D. Notarfrancesco, on January 24,2006. Date: .foLd" ( i.._ , ':. '~'c , <.:..;... P1.1L ------ 5. Plaintiff is married to Defendant Notartrancesco. Plaintiff and Defendant Notarfrancesco are currently separated and Plaintiff has filed a Complaint in Divorce, which is currently pending in Cumberland County, Pennsylvania. 6. Defendant Notarfrancesco is a Certified Public Accountant and Partner with the accounting firm of Price Waterhouse Coopers, LLP (hereinafter "PWC"). 7. As a result of Defendant Notartrancesco's position with PWC, the parties routinely filed joint income tax returns in several states, including Pennsylvania, New Jersey and New York. 8. In the fall of2003, the parties received joint income tax returns based on their joint income tax filings in these various states. 9. The checks for these joint income tax returns were delivered to the home of Plaintiff and Defendant Notarfrancesco in Cumberland County, Pennsylvania. 10. Plaintiff saw at least two checks, however the checks subsequently disappeared from the home. When Plaintiff questioned Defendant Notarfrancesco about the checks, he repeatedly represented to Plaintitf that the checks never existed. Defendant Notarfrancesco later represented to Plaintiff that his salary from PWC was reduced and that these checks had to be repaid to PWC. I I. Plaintiff never endorsed the joint income tax return checks. 12. Plaintiff recently discovered that as least three joint income tax return checks, totaling $9,674.00 were deposited in an account that Defendant Notarfrancesco maintained with Defendant Sovereign. This account was in Defendant Notarfrancesco's name alone. MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET. P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 13. Until recently, Plaintiff had no knowledge of the existence of the Sovereign Bank account in Defendant Notartfancesco's name alone. 14. All statements to said account were sent to Defendant Notartfancesco's place of business, rather than the parties' home. 15. Plaintiff has since discovered that Defendant N otarfrancesco used the funds in the Sovereign Bank account, in large part, to finance an extra-marital affair, including purchasing gifts for his paramour. COUNT I - CONVERSION (AGAINST DEFENDANT NOTARFRANCESCO) 16. The averments of paragraphs one through fifteen are incorporated herein by reference. 17. Plaintiff had a possessory right to the joint income tax return checks received by the parties. 18. Defendant Notarfrancesco intentionally exercised dominion and control over the joint income tax return checks. 19. Defendant Notarfrancesco's actions in exercising dominion and control over the joint income tax return checks resulted in an unlawful or serious deprivation and interfered with Plaintiff s possessory rights. 20. Defendant Notarfrancesco had no lawful justification for depriving Plaintiff of her right to or interfering with her possession of the joint income tax return checks. 21. Defendant Notarfrancesco acted with malice, indifference and/or recklessness MEYERS, DESFOR, SALTZGIVEA & BOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 in converting the joint tax return checks to his individual use. WHEREFORE, Plaintiff prays that this Honorable Court enter judgment against Defendant Notarfrancesco for damages in the amount of $9674.00 plus interest and costs, as well as punitive damages and any other relief that the Court deems appropriate. COUNT II - VIOLATION OF THE PENNSYLVANIA UNIFORM COMMERCIAL CODE (AGAINST DEFENDANT SOVEREIGN) 22. The averments of paragraphs one through twenty-two are incorporated herein by reference. 23. Pursuant to I3 Pa. C.S.A. S 31 16(b), an instrument payable to two or more persons if not in the alternative is payable to all of them and may be negotiated only by all of them. 24. Pursuant to 13 Pa. C.S.A. S 3420(a), an instrument is converted if a bank makes or obtains payment with respect to the instrument for a person not entitled to enforce the instrument or receive payment. 25. Defendant Notarfrancesco was not entitled to receive payment for the joint income tax return checks without the endorsement of Plaintiff. 26. Defendant Sovereign made payment to Defendant Notarfrancesco for the joint income tax return checks without the endorsement of Plaintiff. 27. Plaintiff did not consent to the deposit of the joint income tax return checks into the account maintained solely by Defendant Notarfrancesco with Defendant Sovereign. MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 28. Defendant Sovereign acted with malice, indifference and/or recklessness in accepting the joint tax return checks for deposit without Plaintiffs endorsement. WHEREFORE Plaintiff prays that this Honorable Court enter judgment against Defendant Sovereign for damages in the amount of $9674.00 plus interest and costs, punitive damages and any other relief deemed appropriate by the Court. A JURY TRIAL IS DEMANDED. Respectfully submitted, Catherine A. Boyle, Esquire Attorney J.D. No. 76328 ~BV! ,~,>ti, Kel y K' m th, Esquire Attorney J.D. No. 77415 Meyers, Desfor, Saltzgiver & Boyle 4] 0 North Second Street P.O. Box 1062 Harrisburg, PA 17108 (717) 236-9428 Dated: : - ) ~ - J /)()5 MEYERS, DESFOR, SALTZGIVEA & BOYLE 410 NORTH SECOND STREET . P.o. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236.2817 VERIFICATION I, p-' " Elizabeth Notarfrancesco , verify that the Complaint statements made in this are true and correct to the bes of my knowledge, information and belief. I understand that fals statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Dated: 7/14/2005 Defendant MEYERS, DESFOR, SALTZGIVER & BOYtE 410 NORTH SECOND STREET . P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236~2817 ~? ", ~ = 0 ~ ~ c:;.,., ,~ <en ""T1 L_ -< 1-'-' ..::,:: -,- - --11 "-. " F f'-' rl1p:;:; ~ "- V, , -U23 " :::-U -:\ ....- 5J~? ~ c {' ... ~ :,"~~:~ --'". V, .,> l~~5 {' n if, ; ;';"" lrJ _D Q w .< Elizabeth Notarfrancesco, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 05-3555 civil Term Anthony D. Notarfrancesco and Sovereign B~ncorp and Sovereign Bank, Defendant CIVIL ACTION - LAW AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA) ) SS: COUNTY OF CUMBERLAND I, ~ A" \... ~~"" \J" '\ hereby certify that on ..l" \. ~ \ lJ""" , 2005, at do o'clock~. m. a copy of a Complaint was served on the Defendant, Anthony D. Notarfrancesco at"X~'<A. \N~~tt-:lSE ~L&. ~tt\~ '{'(\t (Location) } Signature Sworn to and subscribed before me this ~ day of Cd'~ ,2005 nl1jA~iI ~ Notary Public COMMONWEALTH OF PENNSYlVANIA NOTARIAL SEAL CHRISTIN.~ L KEIM, NOlal'1 Public CI1y of Hamsburg, Dauphin CoUlity My CommIssIon Exp;ros May 1, 2C18 MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236.2817 ELIZABETH NOT ARFRANCESCO, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : No.05-3555 Civil Term ANTHONY D. NOTARFRANCESCO, (An Individual) and SOVEREIGN BAN CORP AND SOVEREIGN BANK, (A Corporation) : CIVIL ACTION - LAW : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify on this I tJ~ day of a.J .. , 2005, a copy of the foregoing () Affidavit of Service was sent via first-class mail, postage pre-paid, to: Anthony D. Notarfrancesco c/o PriceWaterhouseCoopers 250 West Pratt Street Baltimore, MD 21201 -c, atherine A. Boyle, Esquire Attorney for Plaintiff MEYERS, DESFOR. SALTZQIVER & BOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 0 '"" c:~ c, 0 =, ,.n .n ~r' ; , :"J:! , (:= - ,- rT1:TI 0:1 r'~ -,-,f'1"1 c:: ( c::::.> :CST ,'-, ,_/ ( .,> ~ ~T! 2; ."!:: -". . ',J -~~ ).,. ~~; /() t...'l ~5rn o~ '"'"' ::t;! -< ~TI (.}l .< SHERIFF'S RETURN - REGULAR CASE NO: 2005-03555 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND NOTARFRANCESCO ELIZABETH VS NOTARFRANCESCO ANTHONY D ET AL J MICHAEL ICKES , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon SOVEREIGN BANCORP AND SOVEREIGN BANK the DEFENDANT , at 1400:00 HOURS, on the 15th day of July , 2005 at 17 WEST HIGH STREET CARLISLE, PA 17013 by handing to TINA MCCAMMON, CUSTOMER SERVICE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Postage Affidavit Surcharge So Answers: 18.00 4.00 .00 10.00 .00 32.00 r~fi.-c~,~"<~ , R. Thomas Kline 07/18/2005 MEYERS DES FOR SALTZGIVER BOYLE Sworn and Subscribed to before By: ~ ~JJk~. ~ Deputy Sheriff me this :l;}oM.LJ. day of -4q,;< AD /) h -o^ /."" u:,~ ^~ rothonotary , Donald T. Kissinger, Esquire Howell, Kissinger, Conley & Holst, P.C. 130 Walnut Street, P.O. Box 810 Harrisburg, P A 17108 Telephone: (717) 234-2616 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH NOT ARFRANCESCO, Plaintiff v. ANTHONY D. NOTARFRANCESCO, (An Individual), and SOVEREIGN BANKCORP AND SOVEREIGN BANK, (A Corporation), Defendants ) ) ) ) ) ) ) ) ) ) ) ) NO. 05-3555 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Elizabeth Notarfrancesco, Plaintiff c/o Catherine A. Boyle, Esquire MEYERS, DESFOR, SALTZGIVER & BOYLE 410 North Second Street P.O. Box 1062 Harrisburg, P A 17108 You are hereby notified to file a written response to the enclosed Preliminary Objections within twenty (20) days of service hereof or a judgment may be entered against you. Date: ?/J7/6~ r --==Z~/~ Donald T. Kissinger, Esquir Howett, Kissinger, Conley & Holst, P.C. 130 Walnut Street. P.O. Box 810 Harrisburg, P A 17108 Telephone: (717) 234-2616 Counsel for Defendant Anthony D. Notarfrancesco Donald T. Kissinger, Esquire Howell, Kissinger, Conley & Holst, P.C. 130 Walnut Street, P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH NOT ARFRANCESCO, Plaintiff v. ANTHONY D. NOTARFRANCESCO, (An Individual), and SOVEREIGN BANKCORP AND SOVEREIGN BANK, (A Corporation), Defendants ) ) ) ) ) ) ) ) ) ) ) ) NO. 05-3555 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT NOTARFRANCESCO'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes Defendant, Anthony D. Notarfrancesco, by and through his counsel, Howett, Kissinger, Conley & Holst, P.C., who hereby files the instant Preliminary Objections to Plaintiff's Complaint: I. Movant is Anthony D. Notarfrancesco ("Husband"), Defendant in the above- captioned action. 2. Respondent is Elizabeth Notarfrancesco ("Wife"), Plaintiff in the above-captioned action. 3. Pursuant to Rule 1028 of the Pennsylvania Rules of Civil Procedure, a party may file preliminary objections to any pleading limited to the grounds enumerated therein. 4. In accordance with Rule 1028, Husband hereby files the following preliminary objections to Wife's complaint: I. INSUFFICIENT SPECIFICITY OF PLEADING 5. Rule 1028(a)(3) permits a party to object to a pleading that lacks factual specificity. 6. Wife's complaint is insufficiently specific, and fails to permit Husband to prepare an appropriate response thereto, insomuch as Wife fails to allege the extent of her ownership or possessory interest in three tax refund checks purportedly cashed by Husband. Wife does not allege within her complaint that she earned income in the year for which the tax refunds were received, and ownership ofa tax refund, regardless of whether the parties file jointly, depends upon the extent a party earned income in the year that generated the tax overpayment. 7. In fact, for all years in which the parties may have received a tax refund between 2001 and 2004, Husband, and Husband alone, earned all income for the parties; Wife was unemployed throughout the latter part of the marriage and, as a consequence, earned no income which may have formed the basis for any tax overpayment. 8. Said complaint is further insufficient factually insomuch as Wife does not allege the factual basis for her assertion that at least three income tax refund checks, totaling $9,674.00, were deposited into Husband's account with Sovereign BanIe For Wife to prevail upon her tort of conversion against Husband, she must establish, inter alia, that the funds belonging to Wife were, in fact, deposited into a separate bank account as opposed to an account to which she had access. 2 WHEREFORE, Defendant, Anthony D. Notarfrancesco, hereby objects to Plaintiff's complaint on the basis of insufficient specificity; he requests the Court enter an order sustaining his objection and require Plaintiff to file an amended complaint alleging specific facts demonstrating the extent of her ownership or possessory interest in the alleged tax refund checks and the basis for her assertion that said checks were deposited into Defendant's Sovereign Bank account. II. LEGAL INSUFFICIENCY (DEMURRER) 9. Wife's claim against Husband is legally insufficient inasmuch as Wife cannot sustain her claim of conversion. Wife's complaint avers that Husband is employed as a Certified Public Accountant with PriceWaterhouseCoopers, LLP but makes no allegations whatsoever that Wife was employed during the year for which a tax refund was allegedly received. As such, Wife's complaint, accepted as true for purposes of a demurrer, establishes that Husband has an ownership interest in the tax refunds; as he owns the property, he cannot be liable for conversion. 10. Wife's complaint, the facts for which are assumed true for purposes of demurrer, do not establish that Wife has any ownership interest in the tax refunds. While Wife has made the general averment that she had a possessory right to the refund, general statements or averments are insufficient for purposes of defeating a demurrer. Wife is required to plead specifically the nature and extent of her interest, and in the absence of such specificity, her claim is legally insufficient. 11. The elements of conversion require proof that Husband interfered with Wife's right to property, which interference was without lawful justification. As Wife's complaint 3 establishes that Husband has a possessory right to the property but does not establish that Wife had a possessory right to the property, Wife's claim for conversion is legally insufficient. WHEREFORE, Defendant Anthony D. Notarfrancesco, hereby objects to Plaintiffs complaint on the basis of legal insufficiency; he requests the Court enter an order sustaining his objection and dismiss Count I of Plaintiffs complaint as against Defendant Notarfrancesco. III. PENDENCY OF PRIOR ACTION 12. Rule 1028(a)(6) permits a party to object to an action where an identical action is pending. 13. Wife filed a complaint for divorce against Husband on or about June 8, 2005, which complaint raises a claim of, inter alia, equitable distribution of marital property. 14. On July 14, 2005, Wife initiated the instant civil action and named Husband as a defendant thereto; said complaint against Husband alleges conversion oftax refund checks generated during the course of the parties' marriage. 15. To the extent Wife has any ownership or possessory interest in tax refund checks received during marriage, her interest is limited to an equitable interest created by Pennsylvania's Domestic Relations law. 16. Section 3501(a) ofthe Divorce Code defines "marital property" subject to the jurisdiction of a divorce court. 17. Section 3502(a) of the Divorce Code provides that a court shall, upon the request of either party, equitably divide all marital property. 18. Section 3104(a) of the Divorce Code provides that a divorce court shall have jurisdiction to dispose of property between spouses when such a request is raised. 4 19. As the property that comprises Wife's claim for conversion is marital property subject to equitable distribution in the pending divorce action, at action number 05-2937 Civil Term, with the Court of Common Pleas of Cumberland County, the divorce court has exclusive jurisdiction to determine the rights of the parties as to the property at issue and divide it accordingly. WHEREFORE, Defendant, Anthony D. Notarfrancesco, hereby objects to Plaintiff's complaint on the basis of a pending prior action; he requests the Court enter an order sustaining his objection and dismiss Plaintiffs complaint as to Defendant Notarfrancesco, and allow the parties' property rights as to the tax refund check be decided by the divorce court. Respectfully submitted, Date: Y~/ft5" & ' Donald T. Kissinger, Esquire Howett, Kissinger, Conley & Ho st, P.C. 130 Walnut Street. P.O. Box 810 Harrisburg, P A 171 08 Telephone: (717) 234-2616 Counsel for Defendant Anthony D. Notarfrancesco 5 VERIFICATION I, Donald T. Kissinger, Esquire, hereby swear and affirm that the facts contained in the foregoing Defendant Notarfrancesco's Preliminary Objections to Plaintiffs Complaint are true and correct to the best of my knowledge, information, and belief based upon information provided by Defendant and from my own first-hand knowledge and that said facts are made subject to the penalties of 18 Pa. C.S. ~4904 relating to unsworn falsification to authorities. Defendant is outside the jurisdiction of this court such that his verification carmot be timely obtained. Date: :r ~ ~ S" " t/ '~-P?;~ Donald T. Kissinger, Esqu' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH NOT ARFRANCESCO, Plaintiff v. ANTHONY D. NOTARFRANCESCO, (An Individual), and SOVEREIGN BANKCORP AND SOVEREIGN BANK, (A Corporation), Defendants ) ) ) ) ) ) ) ) ) ) ) ) NO. 05-3555 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Donald T. Kissinger, Esquire, counsel for Defendant Anthony D. Notarfrancesco in the above-captioned action, hereby certify that a true and correct copy of Defendant NOlarfrancesco's Preliminary Objections to Plaintiffs Complaint was served upon Catherine A. Boyle, Esquire, counsel for Plaintiff Elizabeth Notarfrancesco, by depositing same in the United States mail, first class, on August 17, 2005, addressed as follows: Catherine A. Boyle, Esquire MEYERS, DESFOR, SALTZGIVER & BOYLE 410 North Second Street P.O. Box 1062 Harrisburg, PA 17108 Date: crI1/oz; , . Donald T. Kissinger, Esquir Howett, Kissinger, Conley & Holst, P.C. 130 Walnut Street. P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Defendant Anthony D. Notarfrancesco C) ':..'~ r-:; ~7., J - .c;) " -- <>> ,.....-, >. '.. C :3--;.. ./~ q, ~-<1 '{;"l1\.Q -0 C(- ~';") ?) l '~., S,;-\ :...- --~, "';""(''') ~-:;~.f\ '"'()" :Jl. ""'i:} ~. cd "" r" ELIZABETH NOTARFRANCESCO Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW NO. 05-3555 ANTHONY D. NOTARFRANCESCO And SOVEREIGN BANCORP AND SOVEREIGN BANK JURY TRIAL DEMANDED Defendant NOTICE TO PLEAD To: Elizabeth Notarfrancesco and Catherine A. Boyle, Esquire Kelly K. Smith, Esquire Meyers, Desfor, Saltzgiver & Boyle 410 North Second Street P.O. Box 1062 Harrisburg, PA 17108 You are hereby notified to file a written response to the enclosed Preliminary Objections within twenty (20) days from service hereof or a default judgment may be entered against 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 S. Bedford Street Carlisle, P A 17013 (800) 990-9108 Marc T. Levin, Esquire Attorney J.D. No. 70294 Michael W. Winfield Attorney J.D. No. 72680 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, P A 171 08-1146 (717) 233-5731 Attorneys for Defendant Sovereign Bancorp, Inc. ELIZABETH NOT ARFRANCESCO Plaintiff I IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW NO. 05-3555 ANTHONY D. NOTARFRANCESCO And SOVEREIGN BANCORP AND SOVEREIGN BANK JURY TRIAL DEMANDED Defendant DEFENDANT SOVEREIGN BANKS PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW comes Defendant, Sovereign Bancorp, Inc., and files this Preliminary Objection as follows: 1. On or about July 14, 2005, Plaintiff filed a Complaint against the Defendants sounding in a theory of "conversion" against Defendant Notarfrancesco and based upon a theory of a violation of the Pennsylvania Uniform Commercial Code against Defendant Sovereign Bancorp, Inc. ("Sovereign"). 2. . Plaintiff sets forth it's claim against Defendarlt Sovereign in her Complaint at Count II, Paragraphs 22 through 28 inclusive. A true and correct copy of Plaintiffs Complaint is attached hereto, marked as Exhibit A and incorporated herein by reference. 576954.1 I. MOTION TO DISMISS REOUEST FOR PUNITIVE DAMAGES 3. In the ad damnum clause following Count II of Plaintiffs Complaint, Plaintiff requests an award of punitive damages. 4. In Paragraph 28 of Plaintiffs Complaint, Plaintiff alleges that "Defendant Sovereign acted with malice, indifference and/or recklessness in accepting the joint tax return checks for deposit without Plaintiff's endorsement." 5. All of the allegations contained in Count II of Plaintiff's Complaint relate to the Defendant Sovereign Bank allegedly accepting a chec,k from Defendant Anthony Notarfrancesco for deposit without the endorsement ofthe Plaintiff. 6. The Supreme Court of Pennsylvania recently reaffirmed that the standard governing the award of punitive damages in Pennsylvania is well-settled stating, "[p ]unitive damages may be awarded for conduct that is outrageous, because of the Defendant's evil motive or his reckless indifference to the rights of others." Hutchison v. Luddv, 870 A2d 766, 770 (pa. 2005) (citing Feld v. Merrian!, 506 Pa. 383,485 A2d 742, 747 (Pa. 1984) and Chambers v. Montgomery, 411 Pa. 339,192 A2d 355, 358 (Pa. 1963)). 7. The Supreme Court has further emphasized that when assessing the propriety of the imposition of punitive damages, "The state of mind of the actor is vital. The act, or the failure to act, must be intentional, reckless or malicious". Hutchison, 870 A2d at 771 (citing Feld, 485 A2d at 748 and Martin v. Johns-Manville Corp., 508 Pa. 154,494 A2d 1088, 1097 n.12 (Pa. 1985) (plurality opinion)). 8. Within the Complaint, Plaintiff has not plead(:d an evil motive or reckless conduct on the part ofthe Defendants. In fact, to the contrary, Count II alleges merely a -2- violation of the Pennsylvania Uniform Commercial Code with respect to the deposit of a check. 9. Conclusory statements that a Defendant's conduct was willful or reckless, with no supporting facts, fails to state a claim for punitive damages. See McDaniel v. Merck. Shame & Dohme, 367 Pa. Super 600,533 A2d 436,447 (1987). Therefore, Plaintiffs unsupported allegation that Defendant Sovereign Bank "acted with malicious, indifference and/or recklessness" is insufficient to establish the requisite mental state needed to assert a claim for punitive damages. 10. Pursuant to Pa. R. C. P. 1028 (a) (4), PlaintifFs averments that Defendant Sovereign acted with "malicious, indifference and/or recklessness", contained in Plaintiff s Complaint at Paragraph 28 should be stricken and Plaintiff s claim for punitive damages contained in the ad damnum clause following Count II of Plaintiffs Complaint should be dismissed. WHEREFORE, Defendant Sovereign Bancorp, Inc. respectfully requests that this Honorable Court grant the above Preliminary Objections and strike all punitive damage language and request for punitive damages against Sovereigll within Plaintiffs Complaint. - 3 - -4- By: RHOA S ~. vm Attorney .D.70294 Michad W. Winfield Attorney J.D. 72680 One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendants Sovl~reign Bancorp, Inc. CERTIFICATE OF SERVICE I hereby certify that on this ----L- day of ~/Jh~ ,2005, a true and correct copy of the foregoing Defendant Sovereign Banks Preliminary Objections to Plaintiffs Complaint was served by means of United States mail, first class, postage prepaid, upon the following: Catherine A. Boyle, Esquire Kelly K. Smith, Esquire Meyers, Desfor, Saltzgiver & Boyle 410 North Second Street P.O. Box 1062 Harrisburg, P A 17108 ~ "1l,J. "'~ Teresa H. Lau!\head ELIZABETH NOTARFRANCESCO, Plaintiff, v. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : No. 05 - 3 ';)!{":) ~ Iu-. ANTHONY D. NOT ARFRANCESCO, (An Individual) and SOVEREIGN BANCORP AND SOVEREIGN BANK, (A Corporation) : CIVIL ACTION - LAW : JURY TRIAL DEMANDED Defendant. NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITHIN INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LA WYER, THIS OFFICE MAYBE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 170 I 3 (717) 249-3166 MEYERS, DESFOR, SAlTZGIVER & BOYLE 410 NORTH SECONO STREET . P.O. BOX 1062 " HARRISBURG. PA 17108 ELIZABETH NOT ARFRANCESCO, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. :No. OS.. 35 S:; ~ T~ : CIVIL ACTION. LA W ANTHONY D. NOTARFRANCESCO, (An Individual) and SOVEREIGN BANCORP AND SOVEREIGN BANK, (A Corporation) : JURY TRIAL DEMANDED Defendants. COMPLAINT AND NOW, comes the Plaintiff, Elizabeth Notarfrancesco, by and through her attorneys, Meyers, Desfor, Saltzgiver & Boyle, and files the following Complaint, and in support thereof, avers as follows: 1. Plaintiff is Elizabeth Notarfrancesco, an adult individual residing in Cumberland County, Pennsylvania (hereinafter "Plaintiff'). 2. Defendant, Anthony D. Notarfrancesco (hereinafter "Defendant Notarfrancesco"), is an adult individual who previously resided in Cumberland County, Pennsylvania and now resides in Baltimore, Maryland. 3. Plaintiffs cause of action against Defendant Notarfrancesco arose in Cumberland County, Pennsylvania. 4. Defendant, Sovereign Bancorp and Sovereign Bank (hereinafter "Defendant Sovereign"), is a corporation which regularly conducts business in Cumberland County, Pennsylvania. MEYERS, DESFOR. SA~TZ(lIVER .. BOY~E 410 NORTH SECOND STREET. P.O. BOX 1062 . HARRr~RII~~ D.a "'74"" 5. Plaintiff is married to Defendant Notarfrancesco. Plaintiff and Defendant Notarfrancesco are currently separated and Plaintiff has filed a Complaint in Divorce, which is currently pending in Cumberland County, Pennsylvania. 6. Defendant Notarfrancesco is a Certified Public Accountant and Partner with the accounting firm of Price Waterhouse Coopers, LLP (hereinafter "PWC"). 7. As a result of Defendant Notarfrancesco's position with PWC, the parties routinely filed joint income tax returns in several states, including Pennsylvania, New Jersey and New York. 8. In the fall of2003, the parties received joint income tax returns based on their joint income tax filings in these various states. 9. The checks for these joint income tax returns were delivered to the home of Plaintiff and Defendant Notarfrancesco in Cumberland County, Pennsylvania. 10. Plaintiff saw at least two checks, however the checks subsequently disappeared from the home. When Plaintiff questioned Defendant Notarfrancesco about the checks, he repeatedly represented to Plaintiff that the checks never existed. Defendant Notarfrancesco later represent(:d to Plaintiff that his salary from PWC was reduced and that these checks had to be repaid to PWC. I I. Plaintiff never endorsed the joint income tax return checks. 12. Plaintiff recently discovered that as least three joint income tax return checks, totaling $9,674.00 were deposited in an account that Defendant Notarfrancesco maintained with Defendant Sovereign. Tills account was in Defendant Notarfrancesco's name alone. MEYERS. DESFOR, SALlZGIVER " BOYLE 410 NORTH SECOND STREET . P.Q.BDX1{)fj' . f-!4RClIC!DJIOl"".... ~_.u 13. Until recently, Plaintiff had no knowledge of the existence of the Sovereign Bank account in Defendant Notarfrancesco's name alone. 14. All statements to said account were sent to Defendant Notarfrancesco's place of business, rather than the parties' home. 15. Plaintiff has since discovered that Defendant Notarfrancesco used the funds in the Sovereign Bank account, in large part, to finance an extra-marital affair, including purchasing gifts for his paramour. COUNT I - CONVERSION (AGAINST DEFENDANT NOTARFRANCESCO) 16. The averments of paragraphs one through fifteen are incorporated herein by reference. 17. Plaintiff had a possessory right to the joint income tax return checks received by the parties. 18. Defendant Notarfrancesco intentionally exercised dominion and control over the joint income tax return checks. 19. Defendant Notarfrancesco's actions in ex,~rcising dominion and control over the joint income tax return checks resulted in an unlawful or serious deprivation and interfered with Plaintiffs possessory rights. 20. Defendant Notarfrancesco had no lawful justification for depriving Plaintiff of her right to or interfering with her possession of the joint income tax return checks. 21. Defendant Notarfrancesco acted with malice, indifference and/or recklessness MEYERS, OESfOR. SALTZGIVER & BOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 . HARFlI~RI IRr.:: pa n~,.... in converting the joint tax return checks to his individual use. WHEREFORE, Plaintiff prays that this Honorable Court enter judgment against Defendant Notarfrancesco for damages in the amount of $9674.00 plus interest and costs, as well as punitive damages and any other relief that the Court deems appropriate. COUNT II . VIOLATION OF THE PENNSYLVANIA UNIFORM COMMERCIAL CODE (AGAINST DEFENDANT SOVEREIGN) 22. The averments of paragraphs one through twenty-two are incorporated herein by reference. 23. Pursuant to 13 Pa. C.S.A. S 3116(b), an instrument payable to two or more persons if not in the alternative is payable to all of them and may be negotiated only by all of them. 24. Pursuant to 13 Pa. C.SA S 3420(a), an instrument is converted If a bank makes or obtains payment with respect to the instrument for a person not entitled to enforce the instrument or receive payment. 25. Defendant Notarfrancesco was not entitled to receive payment for the joint income tax return checks without the endorsement of Plaintiff. 26. Defendant Sovereign made payment to Defendant Notarfrancesco for the joint income tax return checks without the endorsement of Plaintiff. 27. Plaintiff did not consent to the deposit of the joint income tax return checks into the account maintained solely by Defendant Notarfrancesco with Defendant Sovereign. MEYERS, DESfOR. SALTZGIYER & 911YLE 410 NOR1"H SECONOS'TREET . P.O. BOX 1062 . HARRI~RtIRr.. PA ,.."...... 28. Defendant Sovereign acted with malice, indifference and/or recklessness in accepting the joint tax return checks for deposit without Plaintiffs endorsement. WHEREFORE Plaintiff prays that this Honorable Court enter judgment against Defendant Sovereign for damages in the amount of $9674.00 plus interest and costs, punitive damages and any other relief deemed appropriate by tbe Court. A JURY TRIAL IS DEMANDED. Respectfully submitted, -CI Catherine A. Boyle, Esquire Attorney J.D. No. 76328 IL ~~ .Sn,,',tt ~y K' th, Esquire Attorney J.D. No. 77415 Meyers, Desfor, Saltzgiver & Boyle 410 North Second Street P.O. Box 1062 Harrisburg, PA 17108 (717) 236-9428 Dated: : - ) ~ - ~ /){)~c;, MEYERS, DESFOR. SALTZGIVER & BOYLE 410 NORTH SECOND STREET . P.O, BOX 1062 . HARRISBURG. PA 17H\1:I I, VERIFICATION Eiizabeth Notarfrancesco , verify that the statements made in this Complaint are! true and correct to the bee of my knowledge, information and belief. I understand that fals statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Dated: 7/14/2005 ~ , ( Defendant , I I , I II MEYERS, DESFOR, SALT2GlVER " BOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-.2817 () ...., ~ = 0 r (' r:: '''' -n .. ~. "" I~ -.":! '- --I 1"''' c: ...,.. -. .--n ...... ,- F ,.~,. n'p: (() '" ,. !; ." ill .... V, ~..' ,: :00 ..., ....- o I ~ r:~ ~JtJ {' .. .. =- .~~~ ~~ , -' \.1', ):r ~~ c5{11 \1\ :~ ~ -., ::J:J -< w -< o ,....., C'::1 '-.~.~ c~,('l en t:';-"\ '."0 ( ;; , N \.J -1"\ ..... -:r.:~ r:~.~J, ? j :c '~ ~: rf\ ': ) ';:A .--,.. '.J -;:;.::. i? C' 1') ~ ELIZABETH NOT ARFRANCESCO, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : No.05-3555 Civil Term ANTHONY D. NOTARFRANCESCO, (An Individual) and SOVEREIGN BANCORP AND SOVEREIGN BANK, (A Corporation) : CIVIL ACTION - LAW : JURY TRIAL DEMANDED Defendants. Plaintiff. Elizabeth Notarfrancesco's. Answer to Defendant Notarfrancesco's Preliminary Obiections AND NOW. comes Plaintiff, Elizabeth Notarfrancesco, by and through her attorneys, Meyers, Desfor, Saltzgiver & Boyle, and files this Answer to Defendant Notarfrancesco's Preliminary Objections and in support thereof avers as follows: I. Admitted. 2. Admitted. 3. No answer required. The Pennsylvania Rules of Civil Procedure speaks for itself. 4. No answer required. I. INSUFFICIENT SPECIFICITY OF PLEADING 5. No answer required, Pennsylvania Rules of Civil Procedure 1028 (a)( 3) speaks for itself. 6. Denied. Plaintiff need only set forth sufficient facts for Defendant to prepare a response. Plaintiffs Complaint states that Plaintiff and Defendant Notarfrancesco, are husband and wife and routinely filed joint tax returns during the marriage. As a result MEYERS, DESFOR. SALTZGIVER & BOYLE 410 NORTH SECOND STREET .. P.O. BOX 1062 .. HARRISBURG, PA 17108 (717) 236-9428 .. FAX (717) 236-2817 of filing jointly in 2003, Plaintiff and Defendant N otarfrancesco were refunded the sum of $9,674.00. Said refund checks were issued by the Internal Revenue Service in joint names, therefore setting forth Plaintiffs ownership rights to said checks. Accordingly, Plaintiff set forth sufficient facts for Defendant to prepare a response. 7. Denied. This issue is a matter for discovery and accordingly is an inappropriate subject for preliminary objection. Plaintitl nced only set forth sufficient facts for Defendant to prepare a response. Plaintiff has done so by alleging said checks were issued in joint names, establishing her ownership right to said checks. Moreover, Wife was employed at Carol Vinck Creations in Camp Hill, Pennsylvania, in 2003, the year the tax refund payments were received and converted unlawfully by Defendant Notarfrancesco. Defendant Notartrancesco was aware of same since he prepared the parties' 2003 tax returns. 8. Denied. Plaintiff has no obligation to make such and averment. Plaintiff merely needs to plead sufficient facts to allow Defendant to prepare a response. Plaintiff has met her burden by alleging there were joint checks issued in 2003 and that Defendant Notarfrancesco unlawfully converted same. WHEREFORE, Plaintiff, Elizabeth Notarfrancesco, hereby respectfully requests this Honorable Court deny Defendant Notarfrancesco's Preliminary Objection in the nature of insufficient specificity of pleading. II. LEGAL INSUFFICIENCY (DEMURRER) 9. Denied. Plaintiff s Complaint, if accepted as true, sets forth that the checks were 2 MEYERS, DESFOR. SALTZGIVER & BOYLE 410 NORTH SECOND STREET .. P,O. BOX 1062 .. HAARISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 issued injoint names and that Defendant Notartrancesco unlawfully converted same for his sole use and benefit. Accordingly, Plaintiff has met her burden in setting forth facts sufficient to sustain her claim. Moreover, Wife was employed in 2003, the year the tax refund checks were received, at Carol Vinck Creations in Camp Hill, Pennsylvania. Defendant Notartrancesco was aware of same since he prepared the parties' 2003 tax returns. 10. Denied. Plaintiff set forth with specificity that the tax refund checks at issue, were issued injoint names, thereby establishing her ownership rights in same. Further, Plaintiff properly set forth Defendant Notarfrancesco's unlawful conversion of same. Accordingly, Plaintiff can sustain her claim of conversion. 11. Denied. The tax refund checks at issue, were issued in joint names, thereby establishing Plaintiffs ownership rights in same. WHEREFORE, Plaintiff, Elizabeth Notarfrancesco, hereby respectfully requests this Honorable Court deny Defendant Notarfrancesco's Preliminary Objection in the nature of legal insufficiency (demurrer). III. PENDENCY OF PRIOR ACTION 12. No answer required. Pennsylvania Rule of Civil Procedure 1028 (a)(6) speaks for itself. 13. Admitted. 14. Admitted. 15. Denied. Wife also has property rights to said checks that are only protected by , ) MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236.9428 . FAX (717) 236-2817 common law and cannot be protected by statute. 16. No answer required. The Divorce Code speaks for itself. 17. No answer required. The Divorce Code speaks for itself. 18. No answer required. The Divorce Code speaks for itself. 19. Denied. Defendant Notarfrancesco, a Certified Public Account with PriceWaterhouseCoopers, had full knowledge of his actions to convert said joint income tax refund checks to the exclusion of Plaintiff. There is no such legal concept as "exclusive jurisdiction" over said checks, as Plaintiff has possessory rights to said property in common law that are not protected by statute. WHEREFORE, Plaintiff, Elizabeth Notarfrancesco, respectfully request this Honorable Court deny Defendant Notarfrancesco's Preliminary Objection in the nature of pendency of prior action. Respectfully submitted, Catherine A. Boyle, Esquire Attorney l.D. 76328 Meyers, Desfor, Saltzgiver & Boyle 410 North Second Street P.O. Box 1062 Harrisburg, P A 17108 (717)236-9428 Attorney for Plaintiff 4 MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET. P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236.2817 VERIFICATION I, Elizabeth Notarfrancesco , verify that the statements made in this Plaintiff, Elizabeth Notarfrancesco's nswer to Defendant Notarfrancesco Preliminary Objections are true and correct to the bes of my knowledge, information and belief. I understand that fals statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Dated: '\\~\oS Defendant MEYERS, OESFOR, $ALTZGIVER & BOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 . HJ\RRISBURG, PA 17108 (717) 236-9426 . FAX (717) 236-2617 ELIZABETH NOT ARFRANCESCO, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : No.05-3555 Civil Term ANTHONY D. NOTARFRANCESCO, (An Individual) and SOVEREIGN BANCORP AND SOVEREIGN BANK, (A Corporation) : CIVIL ACTION - LAW : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that on this V4..- day of ~, 2005, a true and correct copy of the foregoing Plaintiff, Elizabeth Notartrancesco's, Answer to Defendant Notarfrancesco's Preliminary Objections was sent via tirst-class mail, postage paid to the following: Sovereign Bankcorp/Sovereign Bank 17 West High Street Carlisle, P A 17013 Anthony D. Notartrancesco cIa Donald T. Kissinger, Esquire Howett, Kissinger, Conley & Holst, PC 130 Walnut Street Harrisburg, PAl 7 101 Catherine A. Boyle Attorney for Plaintiff MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET. P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 n '" =" ~-._:> ';::Jl C'l ~"-l 'oj C) -T1 ~ nl I _J C~~) C) c' ~ ELIZABETH NOT ARFRANCESCO, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO.05-3555 Civil Term ANTHONY D. NOTARFRANCESCO, (An Individual) and SOVEREIGN BANCORP AND SOVEREIGN BANK, (A Corporation) : CIVIL ACTION - LAW : JURY TRIAL DEMANDED Defendants. PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Kindly discontinue without prejudice the above captioned Complaint filed on July 14, 2005, as to Defendant Soverign Bankcorp and Sovereign Bank only. Pursuant to Pa. R.c.P. 229, all parties have consented in writing to the discontinuance of this action against Defendant Sovereign Bankcorp and Sovereign BanI" Respectfully submitted, Catherine A. Boyle, Esquire Meyers, Desfor, SaItzgiver & Boy e Attorney J.D. No. 76328 4 ION orth Second Street P.O. Box 1062 Harrisburg, PA 17108 (717) 236-9428 Attorney for Plaintiff MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 - ELIZABETH NOT ARFRANCESCO, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : No.05-3555 Civil Term ANTHONY D. NOTARFRANCESCO, (An Individual) and SOVEREIGN BANCORP AND SOVEREIGN BANK, (A Corporation) : CIVIL ACTION - LAW : JURY TRIAL DEMANDED Defendants. CERTIFICATE OF SERVICE I hereby certify that on this / / 'f!1 day of {)r_+o ~ , 2005, a copy of the attached Praecipe was sent VIA Regular U.S. Mail, postage pre-paid, to: Anthony Notarfrancesco c/o Donald T. Kissinger, Esq. Howett, Kissinger, Conley & Holst 130 Walnut Street Harrisburg, PA 17101 Sovereign Bancorp and Sovereign Bank c/o: Marc T. Levin, Esquire Rhoads & Sinon LLP One South Market Square P.O. Box 1146 Harrisburg, PAl 7 I 08-1146 - C, MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 ~ ...., ~ 0 C:-j -n Cf> (:::::. ..... C'j -r --.t fYl W -:"-1 C) JJ 1...0 -< IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH NOT ARFRANCESCO, ) Plaintiff ) ) v. ) ) ANTHONY D. NOTARFRANCESCO (an adult ) individual) and SOVEREIGN BANCORP and ) SOVEREIGN BANK (a corporation), ) Defendants ) NO. 05-3555 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR LISTING CASE FOR ORAL ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for Argument Court. I. State matter to be argued: Defendant Anthony D. Notarfrancesco's preliminary objections to complaint, which were filed on August 18, 2005. 2. Identify counsel who will argue cases: (a) for Plaintiff: Catherine A. Boyle, Esquire, Meyers, Desfor, Saltzgiver & Boyle, 410 North Second Street, Harrisburg, PA 17101, Telephone: (717) 236-9428. (b) for Defendant: Donald T. Kissinger, Esquire, Howett, Kissinger, Conley & Holst, P.C., 130 Walnut Street, P.O. Box 810, Harrisburg, PA 17108, Telephone: (717) 234-2616. (c) for Sovereign Bancorp and Sovereign Banle Marc T. Levin, Esquire, Rhoads & Sinon, LLP, One South Market Square, P.O. Box 1146, Harrisburg, PA 17108-1146, Telephone: (717) 231-6600. 3. I will notify all parties in writing within two days that this case has been listed for argument. Notification has been accomplished contemporaneously with submission of this praecipe. 4. Argument Court Date: Kindly schedule the matter for argument on November 23, 2005. Respectfully submitted, Date: 161-1~~ v I DanaI T. Kissinger, Es HOWETT, KISSINGE 130 Walnut Street P.O. Box 810 Harrisburg, PAl 7108 Telephone: (717) 234-2616 Counsel for Defendant, Anthony D. Notarfrancesco - ~ pjJ -, 'c:> ,:::,~;\ ",1 C> ,) -; w C) -1'1 ~, '".-J, tl1 r~~ -.....0-1 . j(.- -'~i:i -', Ie )~-~~~ '.-;':'2 )~ --<.. -n c:') C..:; Donald T. Kissinger, Esquire Howell, Kissinger, Conley & Holst, P.c. 130 Walnut Street P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Defendant, Anthony D. Notarfrancesco IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH NOTARFRANCESCO, Plaintiff ) ) ) ) ) ) ) ) ) CIVIL ACTION - LAW JURY TRIAL DEMANDED NO. 05-3555 v. ANTHONY D. NOTARFRANCESCO (an individual) and SOVEREIGN BAN CORP an SOVEREIGN BANK (a corporation), Defendants DEFENDANT NOTARFRANCESCO'S MOTION TO OUASH NOTICE OF DEPOSITION AND NOW, comes Defendant, Anthony D. Notarfrancesco, by al1d through his counsel, Howell, Kissinger, Conley & Holst, P.c., who hereby files the instant Motion to Quash Notice of Deposition and in support thereof avers as follows: 1. Movant is Anthony D. Notarfrancesco ("Husband"), Defendant in the above-captioned action. 2. Respondent is Elizabeth Notarfrancesco ("Wife"), Plaintiff in the above- captioned action. 3. While Sovereign Bankcorp and Sovereign Bank (collectively "Sovereign") were named as a defendant in the initial action, and continues to be named party on the caption of this action, the case against Sovereign was discontinued by Wife via praecipe filed October 13, 2005. 4. In February of2005, Wife originally initiated the instant action against Husband and Sovereign alleging the tort of conversion and violations of the Uniform Commercial Code respectively against the Defendants. 5. On or about March 21, 2005, Wife discontinued the action against both Defendants without prejudice. 6. Husband and Wife separated on or about May 31, 2004, and in July of 2004 Wife initiated a divorce action against Husband requesting, inter alia, a no-fault divorce and equitable distribution of the marital estate. 7. Said divorce action was extremely contentious throughout its pendency between July of2004 and March of2005, when Wife discontinued the divorce action by praecIpe. 8. Wife discontinued both the divorce action and the instant action roughly at the same time in March of2005 when the parties attempted a reconciliarion. 9. When said reconciliation attempt proved unsuccessful, Wife reinitiated her divorce action against Husband, which remains pending at action no. 05-2937 Civil Term, and she reinitiated the instant action by complaint filed July 14, 2005. 2 10. In her complaint, Wife alleges Husband is liable for the tort of conversion insomuch as she specifically alleges he improperly endorsed her name on three jointly titled state income tax refund checks received by the parties in 2003 (prior to separation), which he deposited into an individual, marital account with Sovereign Bank without her knowledge or consent. II. Husband filed preliminary objections to the complaint seeking the dismissal of the action through a demurrer or consolidation with the pending divorce action on the theory of lis pendens. 12. Wife alleged these three income tax refund checks totaled $9,674.00. 13. As Husband and Wife were married and not separated in 2002, the year that corresponds with the alleged income tax refunds, and also 2003, the year these monies were allegedly deposited into the marital Sovereign account, it is without question that the alleged $9,674.00 is marital property subject to the jurisdiction of the divorce court given Wife's pending count of equitable distribution. 14. In response to Wife's complaint, Sovereign Bank produced documentation from Husband's account with Sovereign conclusively establishing that the three deposits Wife alleged to be joint income tax refund checks on which Husband had endorsed Wife's name were, in fact, proper deposits by instruments titled in Husband's sole name, none of which required Wife's signature. 3 15. In light of this disclosure, Wife filed a praecipe on October 13,2005 discontinuing the action as to Sovereign because the allegations against Sovereign were not factually supportable. 16. By letter dated October 18, 2005, which was delivered via certified mail to opposing counsel, Husband's counsel advised Wife's counsel that, in light of the disclosure by Sovereign, it was apparent that the facts alleged against Husband likewise could not be supported by the evidence; as such, Husband's counsel demanded that the action be discontinued as against Husband as well, or, otherwise, Husband would seek sanctions against Wife and her counsel pursuant to Rule 1023. I et seq. A copy of counsel's October 18,2005 letter is attached hereto as Exhibit" A" and is incorporated herein by reference thereto. ] 7. On September 16,2005, before Sovereign produced documentation refuting the allegations within the complaint, Wife served a Notice of Deposition against Husband requiring his attendance at a deposition in the above-referenced action for Tuesday, November I, 2005 starting at 9:30 a.m. 18. In the parties' divorce action, Wife has deposed Husband on two separate, full day occasions (the first in December of2004 under the initially filed divorce action; the second on September 30, 2005 under the pending action), and at the second deposition on September 30, 2005 Wife's counsel failed to complete the deposition following a full day and requested an additional full day to depose Husband. 19. Husband is a partner with PricewaterHouseCoopers, LLP ("PWC") who works from PWC's Baltimore office. 4 20. As Husband works out of the Baltimore office, he maintains a residence in Baltimore, Maryland, approximately an hour and a half to two hours fi'om Harrisburg. 2 I. As a senior partner with PWC, Husband keeps a very demanding schedule and is required to meet regularly with large corporate clients; Husband lrequently has full days set aside for meetings throughout the year, which meetings are scheduled weeks, ifnot months, in advance. 22. Further, if Husband is not attached in meetings he is working on maintaining the client files of the numerous clients he represents; as such, it is difficult for Husband to miss work. 23. Given Husband's occupation and current out of state residence, it is extremely difficult for him to set aside full day blocks oftime for repeated depositions; presently, Husband has traveled to Pennsylvania on two separate occasions for full day depositions in the pending divorce action, and Wife's counsel still has not completed her deposition. 24. On October 18,2005, Husband's counsel sent a letter to Wife's counsel advising her of the extreme difficulty Husband has in constantly being noticed to attend proceedings in Pennsylvania, and Husband's counsel demanded that Wife's counsel schedule one more deposition day for Husband to cover any and all issues related to the pending divorce and civil actions. A copy of counsel's October 18,2005 letter is attached hereto as Exhibit "B" and is incorporated herein by reference thereto. 5 25. Said October 18th letter also advised Wife's counsel that, because November 2"d was already devoted to deposing Wife in the divorce action, Husband requested that November 2"d be used to depose both parties to finally complete the deposition process. 26. Said letter further stated that Husband was unable to attend the November I" deposition due to scheduled work commitments and, therefore, would not appear at the designated time. 27. If Wife's counsel was not willing to consolidate the depositions for November 2"d, counsel's October 18th letter further advised that a motion to quash would be filed. 28. Pursuant to Rule 234.4, a party may file a motion to quash a notice to attend, and a court may enter an order protecting a person from unreasonable annoyance, cmbarrassment, oppression, burden or expense. 29. In accordance with Rule 234.4, Husband maintains the instant notice of deposition, seeking to take Husband's deposition for November 1,2005 should be quashed in light of, inter alia, the following: (a) Given the documentation provided by Sovereign in early October, it is clear that Wife's allegations against Husband, which form the basis of her cause of action for conversion against Husband in this action, cannot be legally supported. Despite this fact, Wife has unreasonably refused to discontinue the action against Husband and is insisting upon proceeding with her scheduled deposition. Pursuant to Rule 401 I (a), a deposition will not be permitted ifit is sought in bad faith; given the above, Wife's cause of action, as pleaded, cannot be factually sustained, and any discovery sought in the action after Wife has been apprised of this fact is nothing short of bad faith; 6 (b) Furthermore, Rule 4011(b) provides that a deposition will not be permitted if it will cause unreasonable annoyance, oppression, burden or expense to the deponent. Wife has already deposed Husband, albeit in the divorce action, on two separate occasions, and now she wants to not only depose Husband again for a full day in the divorce action, but she wants to depose him for a full day in this action, which deals with issues properly before the divorce court. If this is permitted, Husband will have spent four full days in Pennsylvania being deposed on economic issues related to the divorce. Requiring Husband to appear for a deposition on November I ", when Wife's counsel has made it clear she is intending to seek another full day of deposition in the divorce action, is creating unreasonable burden and expense upon Husband given his need to cancel work appointments, take another full day off of work and travel an hour and a half to two hours to Pennsylvania for a deposition; (c) In both the pending divorce action and the instant action, but particularly in the divorce action, whenever Wife has sought to depose Husband she has simultaneously sent out a voluminous notice to produce requesting copious amounts of documents, to which Husband has endeavored to reply on every occasion. Furthermore, Wife has undertaken a course of action to proceed antagonistically against Husband in every respect, including filing numerous petitions in the divorce action, which have been designed solely to harass Husband and create unreasonable annoyance and oppression. The notice of deposition for which this motion to quash is filed is but further evidence of Wife's plan to unreasonably harass and annoy Husband, which is impermissible pursuant to Rule 4011(b); 7 (d) Husband is unavailable on November 1, 2005 due to work commitments; (e) Given the fact that Wife's allegations in this action, assuming, arguendo, they could be factually sustained, establishes that the allege monies at the heart of the complaint are marital propeliy and, therefore, subject to the jurisdiction of the divorce court, Wife's claims are properly before the divorce court; therefore, to advance judicial economy and minimize expense of the parties, the pending action should be consolidated with the parties' pending divorce action, and all discovery should proceed under the divorce action, which is what Husband has proposed not only is the preliminary objections filed in this action but also through correspondence; and (t) Husband has been forced to undergo expensive and protracted litigation thus far in the divorce action, and requiring Husband to appear for two separate depositions unnecessarily increases the parties' expenses. 30. Husband has offered to appear for one day of deposition covering all issues on a date other than November 1,2005; Wife has refused this request. WHEREFORE, Defendant, Anthony D. Notarfrancesco, respectfully requests this Honorable Court enter an order quashing the notice of deposition served by Plaintiff on September 16, 2005. In addition, the Court should order the following: (a) That Plaintiff be permitted to depose Defendant Notarfrancesco for one additional full day covering all issues in this and! the pending divorce action; and 8 (b) If Plaintiff does not finish her deposition within that time period, additional time may be granted either by agreement of the parties or order of the court provided, however, Plaintiff will be fully responsible for all costs and expenses incurred by Defendant in appearing for a deposition, including, but not limited to, reasonable attorneys' fees for the additional deposition time. Date: IDP?~9 ,Re~~~fully subnHtted, , ------." /~ .--, ~ ,-~ / ;P~ Donald T. Kissinger, Esquire Howett, Kissinger, Conley & Holst, P.C. 130 Walnut Street P.O. Box 810 Harrisburg, P A 17108 Telephone: (717) 234-2616 Counsel for Defendant, Anthony D. Notarfrancesco 9 VERIFICATION I, Anthony D. Notafrancesco, hereby swear and affirm that the facts contained in the foregoing Defendant Notarfrancesco' s Motion to Quash Not i ce of flppos it i on are true and correct to the best of my knowledge, information and belief and are made subject to the penalties of I 8 Pa.C.S. 94904 relating to unsworn falsification to authorities. Date: 10/28/05 Anthony D. Notarfranc GO Exhi~\\ A ( L\w 0ffK:ES OF HOWETI, KISSINGER. CONLEY & HOLST, P.c. 130 WALNtIT STREET POST OFACE BOX 810 HAAAlSBL'"RG. Pf:.lNSYLv......'l1A 11108 JOH:" C. HOWETT. JR. DONALD T. KISSI~GER CINDY S. CONLEY DARREN J. HOLST (717) 2J.l-1616 FAX (717) 2~5-102 DEBRA M. SHIMP Legal Assislanl October 18, 2005 VIA CERTIFIED MAIL RESTRICTED DELIVERY RETURN RECEIPT REOUESTED Catherine A. Boyle, Esquire MEYERS, DESFOR, SALTZGIVER & BOYLE 410 North Second Street P.O. Box 1062 Harrisburg, PA 17108 Re: Notarfrancesco v. Notarfrancesco No. 05-3555 Civil Term Dear Cathy: I write the following letter to you in accordance with rules 1023.1 through 1023.4 of the Pennsylvania Rules of Civil Procedure. On or about July 14, 2005, you filed a complaint on behalf of your client, Elizabeth Notarfrancesco, alleging that my client, Mr. Notarfrancesco, and Sovereign Bank were respectively liable for civil conversion and violations of the Uniform Commercial Code. In particular, you allege that Mr. Notarfrancesco deposited various joint income tax refunds into the Sovereign Bank account held in his sole name without your client's endorsement of the joint checks or without her permission, and that Sovereign Bank inappropriately permitted those deposits to occur. In response to your lawsuit, Sovereign Bank has produced documents regarding Mr. Notarfrancesco's bank account, which documents conclusive establish that the deposits you allege were joint tax refund checks were, in fact, either checks written directly to Mr. Notarfrancesco or deposits that did not require your client's endorsement. They clearly were not joint income tax refund checks. Based upon this disclosure, you have discontinued the action against Sovereign Bank, but you have thus far refused my request that upon discontinue the action as to Mr. Notarfrancesco. . . ",.. ~l_'i . ,':";';;':"';~'; . , ,,,.',..j.$:";~:,t,;,,r~~;;,..:' .,,~,./ .f._, ,.. ( ( Catherine A. Boyle, Esquire October 18, 2005 Page Two It is now apparent that your complaint against Mr. Notarfrancesco cannot be factually sustained and is therefore without merit. Rule 1023.I(c) requires that an attorney make reasonable inquiry as to the veracity of the facts alleged by a civil plaintiff prior to filing a complaint. Moreover, 1023.I(c)(l) obligates an attorney not to file an action designed solely for an improper purpose, such as to harass or needlessly increase the cost of litigation. Finally, subsections (c)(2) and (c)(3) require that claims be supportable under current law and that the factual allegations are likely to have evidentiary support after engaging in discovery. In light of this discovery, it is demanded that you terminate the action as to my client, Mr. Notarfrancesco, by filing a praecipe discontinuing the entire action. Continuing with the current action in light of the disclosure from Sovereign Bank is an actionable offense sanctionable under Rule 1023.1 et. seq. If you do not discontinue the action within twenty-eight days from the date of this letter, please be advised that, pursuant to Rule 1023.2(a), our office will bl: submitting an application for sanctions seeking, inter alia, payment of reasonable attorneys' D:es and other expenses incurred in pursuit of said sanctions as well as the imposition of a monetary sanction against your firm and your client for refusing to withdraw the action after being (:onfronted with proof that the complaint cannot be legally supported on the facts as alleged within the complaint. Mr. Notarfrancesco will also pursue any other recourse he may have against your client and is exploring his options at this time. Please do not hesitate to contact me to discuss matters, if the need arises. Otherwise, I will expect that the complaint will be withdrawn within twenty-eight days of service of this letter. Thank you. Sincerely, D~~ DTKldjk cc: Marc T. Levin, Esquire Anthony D. Notarfrancesco .;,. ,ii;j:,;'~ i."; ;,' . ~~il)lfg ( C' LAw OmCES OF HOWETT, KISSINGER, CONLEY & HOLST, P.c. 130 WAL:<LO STREET POST OFFICE BOX 810 HARRISBl'RG, PE."="SYL\'A;.;lA 17108 JOH:< C. HOWETI. JR DO:<ALD T KISSI:<GER CI:<DY S CO:<LEY DARRE:< J HOLST (717) :!3~<!616 FA.X (17) 2J~-5402 DEBR.' \1. SHI\IP U:gal Assist:UH October 18, 2005 VIA FAX & MAIL (717) 236-2817 Catherine A. Boyle, Esquire MEYERS, DESFOR, SALTZGIVER & BOYLE 410 North Second Street P.O. Box 1062 Harrisburg, PAl 7 I 08 Re: Notar{rancesco v. Notarfrancesco Dear Cathy: You have noticed Tony for a deposition in the underlying civil action for Tuesday, November 1, 2005. Because your were unable to complete the September 30, 2005 deposition of Tony in the divorce action (the second deposition of Tony in the divorce action), you have asked for a second full day to have Tony available to complete that deposition. As a corollary matter, Beth's deposition in the divorce action is scheduled for Wednesday, November 2,2005. Tony has a very demanding work schedule, and given the fact that he is an out of state defendant, it is extremely difficult for him to set aside time to appear for multiple depositions in Pennsylvania, and requiring him to attend multiple depositions is very disruptive to his work obligations. I will not object to you having one additional day in which to depose Tony, but I will agree to only one additional day covering all issues you wish to address to Tony. If you are unable to finish in the allotted time, I will not agree to any additional deposition time absent a compulsion order from the court. It is unreasonably burdensome on my client to continue to travel to Pennsylvania to be subjected to multiple depositions in multiple actions. Moreover, your deposition of Tony should coincide with my deposition of Beth on November 2rul. I do not expect her deposition to be lengthy, and since Tony will be present for her deposition, it makes sense to have you depose him at that time as well. In any event, Tony will not be appearing for the November 1st deposition in the civil action; rather, he will appear on November 2nd and the remainder of that day, following my deposition of Beth, can be devoted entirely to your questioning of him in both the divorce and civil actions. If you are concerned about completing your deposition after my deposition of Beth, I would be happy to schedule Beth's deposition for an earlier time that day to ensure that all matters can be completed by the end of business that day. _._,'.c";;(,, ,,~;. < 'i~l ,-,,-, . .'"..:.,' '_i,J.e,:-;,. <l:r.::\hj.:o.I'~JI:'~""~ / (' Catherine A. Boyle. Esquire October 18. 2005 Page Two Ifwe cannot agree by next Tuesday, October 25,2005 to consolidate all depositions for November 20", our office will file an appropriate motion for protective order. Sincerely, ~~ Donald T. Kissinger DTKldjk cc: Anthony D. Notarfrancesco (via fax & mail) '. ,'"ic., ~..'._ '","."' , .,.".......,....,.. ~ - ' ."-",-,,,',', ,':,~,;,':~:~~'~ff,';,;-.(' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COU\lTY, PENNSYLVANIA EUZABETH NOT ARFRANCESCO, Plainti ff ) ) ) ) ) ) ) ) ) CIVIL ACTION - LAW JURY TRIAL DEMANDED NO. 05-3555 v. ANTHONY D. NOTARFRANCESCO (an individual) and SOVEREIGN BANCORP an SOVEREIGN BANK (a corporation), Defendants CERTIFICATE OF SERVICE I, Donald T. Kissinger, Esquire, counsel for Anthony D. Notarfrancesco, Defendant in the above-captioned action, hereby certify that a true and correct copy of the foregoing Motion to Quash Notice of Deposition was served upon Catherine A. Boyle, Esquire, counsel for Elizabeth Notarfrancesco, Plaintiff, by hand delivery on October 28,2005, addressed as follows: Catherine A. Boyle, Esquire MEYERS, DESFOR, SALTZGIVER & BOYLE 410 North Second Street P.O. Box 1062 Harrisburg, PAl 7108 /~c-- Date: j0 / 2: g; O~ -'-+- I ~--. --~~'/7~~ Donald T. Kissinger, Esq&i Howett, Kissinger, Conley & Holst, P.c. 130 Walnut Street P.O. Box 810 Harrisburg, PA 17108 Telephone: 717-234-2616 Counsel for Defendant, Anthony D. Notarfrancesco 10 )lJ o <::; ", '~ \ ~ -'- "--' C:x." ...~ '7 -' -J::' -<:: . . W. Scott Henning, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 717-238-2000 717-233-3029 - fax Henninq@HHRlaw.com Attorney for Plaintiffs LAUREN RICHEY, a minor, by and through her parent, CYNTHIA NOVOSEL, and CYNTHIA NOVOSEL in her own right, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. No. 2005-00230 EAST PENNSBORO SCHOOL DISTRICT, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED PETITION FOR APPROVAL OF MINOR'S COMPROMISE/SETTLEMENT Pursuant to Pennsylvania Rule of Civil Procedure No, 2039, Cynthia Novosel, legal guardian of minor, Lauren Richey, by and through their attorney, W. Scott Henning, Esq., HANDLER, HENNING & ROSENBERG, LLP petition this Honorable Court to enter an Order permitting settlement and compromise of this action and, in support, aver: 1. Petitioner, Cynthia Novosel, is the natural parent and guardian of minor, Lauren Richey, currently age eleven (11) years old, whose date of birth is August 13, 1994. 2. Plaintiff resides with the minor child at 31\~ Third Street, Apt. 5, Enola, Cumberland County, Pennsylvania 17025. 3. Defendant, East Pennsboro School District is a duly existing governmental entity and a public school district within the Commonwealth of Pennsylvania with administrative offices located at 890 Valley Road, Enola, Cumberland County, Pennsylvania 17025. 4. On or about April 20, 2004, Lauren Richey was caused to step and fall harshly into a hole approximately ten inches in diameter that existed in the road/driveway of the premises of West Creek Hills Elementary School- 400 Erford Road, Camp Hill, Cumberland County, Pennsylvania. 5. As a result of the injuries, Lauren was treated by Orthopedic Institute of Pennsylvania and Darowish & McCoy Associates, P.C. for a fracture of her right heel, as well as abrasions and contusions to herface, elbows & knees. Attached hereto and incorporated herein as Exhibit A are the medical records and billing statements from Orthopedic Institute of Pennsylvania and Tristan Associates. The last date of treatment was 6/2/04. No future treatment is scheduled or anticipated. 6. Petitioner has pursued a claim to seek compensation for Lauren's injuries asserting negligence on the part of the Respondent thereby causing the injuries suffered by Lauren Richey. Respondent has offered the Petitioner a settlement in the amount of $3,500.00. The settlement monies would be distributed as follows: a. payment of fees in the amount of $875.00 (25% contingency fee) from the funds due the minor (Fee Agreement attached as Exhibit B) b. payment of costs in the amount of $367.83 from the funds due the minor (Billing Summary attached as Exhibit C) . . C. net funds in the amount of $2,257.17 from the lump sum payment into an interest bearing, federally insured savings account or certificate of deposit with Petitioner, Cynthia Novosel named as guardian for the benefit of Lauren Richey, minor. The account is to be marked "Not to be withdrawn until minor Petitioner reaches her majority or without the Court Order of a Court of competent jurisdiction". 7. Petitioner proposes to accept the settlement proposal from Respondent and thereby release Respondent from any all claims, suits, and other actions pursuant to the injuries in the present case. 8. Petitioner believes that this Compromise is in the best interests of minor, Lauren Richey. WHEREFORE, Petitioner requests this Honorable Court to: a. Approve the Compromise above-stated; b. Authorize the payment of fees in the amount of $875.00 payable to Handler, Henning & Rosenberg, LLP from the funds due t.he minor; c. Authorize the payment of costs in the amount of $367.83 payable to Handler, Henning & Rosenberg, LLP from the funds due the minor; d. Authorize the net funds in the amountof$2,257.17 from the lump sum payment into an interest bearing, federally insured savings account or certificate of deposit with Petitioner, Cynthia Novosel named as guardian for the benefit of Lauren Richey, minor. The account is to be marked "Not to be withdrawn until 3 . . minor Petitioner reaches her majority or without the Court Order of a Court of competent jurisdiction". Respectfully Submitted, HANDLER, HEN G & ROSENBERG, LLP Attorneys for Petiti er Cynthia Novosel on behalf of minor child, La ren Richey 4 VERIFICATION The undersigned hereby verifies that the statements in the foregoing document are based upon information which has been furnished to counsel by me and information which has been gathered by counsel in the preparation of this lawsuit. The language of the document is of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the contents of the document are that of counsel, I have relied upon my counsel in making this Verification. The undersigned also understands that the statements made therein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. , aJ.d-iJ./~ //1 A.... ~o Q ./ Cynt la Novosel Date: j(),J'j A2 4 oarowish and ~lcCoy Associates, 387 Sou~~ Arlingtc~ AveGue JUl. ~ (~('11 ~,UU'- - ',-'- ~ - ._, - ~.-- l.'--'-_ -'- _~'-''-'-'- '-] : . ~ 1 ,'~, ,':'; i,'.;':' w,;;..:~ 'J :":.,;,j Name: RICHEY, LAUREN BIRTH HISTORY: WT f>/HT fli/-I HC;? APGARSq'qj~ BLOOD TYPE~COoMBS f1.fi--,v ?7/~C. 7];;;-/,;",- .- ~rl_/->-,:/_~,,'..- .f-;t--.:' ~'2-c,2 of 5-:':--:'(; O::~-'-!3-9c; ?I'.MILY HISTORY; E' - <1.1:"'-(>('-~ M- il4...c____'-'--tt.:,i-j( 'fj,,-, -;-________'l'Lr~/'S.- .___---:-----/Z-r-;&-'--?G.- --:"-' ): ~:y" ),;'0'~/">YY"/./{ :' :-~.-:.:.../ )':--'~"-1-r.::-<.- ".;..-f____f~;~ 5>?~',~~/:.!..:.-- ..-'""""_, .-'~, .f.: ,/Y". .....< A.,~~', d-7 - ........ ...... .~'-;.~_ ~_-:'_ '~'~~;"J - .0." _,' _~ ~' -- .1/ t ":-'~LL'ERGIES: /VK,-t\ I--;".'"Jr~ . / ' "'-1z::...-- 'i -..,_/ / 7:~/'-:::~ --,-- "?ROBLEM.LIST- Chickenpox: ~I ~ i'\ - ~i .-' I 2. ,,,,/[ ;'i'i-~; h~'~ , ,- " ? 1" Ii jr'--'iJ, ,I ie/I. -;';:',0 ..'.~ '" . ';l~n ~! t:'~ " , -, --":'.- ,/,1(:1,,;......;; _ /-". ", "",r' -'.:' ? I ti 'i ,,,f, I,-r. 4. . ,,-:!~ .~JJ /) iI',:', '14. .---"i""o..,'. ,:;.,',' :::: ion '-~ -> r ;.--', .' -- ,;"",-'.;1~;.,;'1,'- _k', 'r.:; " , 11(.;) ,.':....'.;, ~,:,'. :)/:;.';4 ;' 'lL\ 1" :; ~ ~"':7L) /,.)/ P.. 'j 'J ~ 1-;j~k' ,1>~~~' 'TITIS MEDIll. 19. 2C. I IOh: ' '2ICCZ - u ia~, . L\ IDe: ,--j :: '.JIll':: "'::CISPITp.I..IZ;".TION: SURGERIES: --~D-ICAT-I-0NS:.- _E'low:ide..:- LABORATORY: Hct: date: result: 5lnJd'; I il. IJ7 Tuberculin Test:date result VISION: HEARING: ~J 1-10 y COMMENTS: . -:::I'" ~ ....--~ __r .~o~, ~ i:!l I TRISTAN _ Dtaposde Carterl Wom.... ..mil Cmtel' 4~ 18 Unim Depoait :R.o.ui Hmi'lblrz.PAl1111 (7I7)~'2-'84Q (888) 4lM840 F2X(717)6.52-81~1 Henbty- Oflce 3:-~"jt; Suite 101 Ha:ibcy, PA 171J.3.3 (7l7)l33-l'136 Pax(117)l34-1307 ~01ll.. ZS080ldPMRoe.ci SUM loa ~PA171l0 (717)901-<800 Fj)J((717)901-66~5 i\fiddJelm1 Dlagn05ti..-: c...... "7 DlrkHill.R.oad Middleburg. PA 1~4': (,;o)g37~17 hx ('70) 1l37-05417 3mqlltD:;uma v.o." lmaglng mu :yfv..u, ~en-Comrer- 18 Silver Moen Ume .l.ewisburg, PA 17837 (';0) '2'-9300 (llgg) '''-''40 Fnx (888) ~22.~~4] WesfSlion 0fIfA:e 4349 Carlisle P:1:e CMDpHill,PA 17011 (71'Z/.-73Jdl66 Fa..'{ ('117)731.13~6 Seniea High Ficlli M1U Open MlU CaDpUted 7om.Qgtapl1y (CIJ PET Imaging Nuclear .Yedicin~ ultruwnd 1kmmograpity R21mage~ Bone Dcnsitan~ X Ray.l Fluoroa;oJry :NlinimaIly mvasiv<:: Biopsy pA.'11ew.'Tl/.~_; LAUREN RICHEY ACCCUIolT NC 532400 SSN 159.76.1355 Al '!'HE kEQUUi OF MIOHELLEZEAGER DO 8-~SARlINGTON AVE HARRISBURG PA 17109 DA.jE OF !!IlRiri 08/13/1994 I:ATS CF SERVlCC 04/2012004 ,1.GEis;:''''': 09/F 04/20/2004: 013650 XR RIGHT CALCAJ.","EUS 2+ V1:E:WS 04120/2004: 070200 XR RIGHT ORBIT COMP 4 V . HISTORY: Fell this afternoon and injured right heel and face. I RIGHT CALCA.c'VEUS I DIAGNOSIS: There is slight cortical buclding cfthe pstencr as~ec: of,he cuicar:eus I suggesting a nondispl<.ced fracture CO),lMENT: Two views of the right calcaneus WI,re obtained. The lateral film was unremarkable. On the tangential view though. there is coriical buckling laterally which has tee appearance of a nondisolaced imoaction L.'ll~r.,' Bcebler: 5 ar;:srie IS nonriil The actliiJes r~~lC;::~ I is ~nrernarkable - - - - - RIGHT ORBIT I DIAGNOSIS: No fracture COMMENTS: Multiple views oftne rig.ltt orbit and >ygomatic region demonstrnte no fulcture, dislocation, or destructive lesion. There is no fluid in the rnaxillary sinuses. ELECTRON1CALL Y SIGNeD Brian P. Bloom, M.D. BPB/tg n ( n /" \./ _.O? 1)\ / , o NORMAL CJ CALL PT. A o CARD SENT o FILE diri/ t~ j, 'f. (I /~ v ..h . -Y :11 v yv'-""" ,- ~. 'j ~ 'J--- "- .'" .....t...... ~ ;;;) ~ Apri:' "::l., 2004 ~ \'~ ....... Charles Darowish, D.C. ass s. Arli~geon Aven~e Harrisburg, PA 17109 RE : RI C~.E-:::-- I L.A.~jRE~~ !~!- Dear ~r. Darc~ie~~ I haC. the. p16asu~Q 0: iiHui:..ng LA.:mEN M. R1C-:EY ir. ~h6 ':'::::'ir:d'l'3 R=",c.. Cf=:.c~ c:: April 21, 2(0.; =-:r eval:.lac1cr.. '-'_ her righ:. ::::nc...:.s;:laced. ca2.c3.n2:tl.S =~2-=":""':Y2. ~:STORY CF COMPL~NT: :au~e~ ~~ a yc~ng la~y w~c i$ nine ye~r3 cz ase. _ ~~ ~eei~g her for C~arleG ~r=w~sh! D.O. =~Y ~ ris~t calcaneus frac~~~8. S~G apparer..tly r..ac .a mishap at. ecr.ool whsn sna ::511 :.::t.o a hclE er:. t:.:'1~ sc;:.::.::?. prope:::t:r. T:'lis ::::ccuY"red or: ';/20/2CO-1:. 7<.BVIE~7 OF SYSTEMS, Revie'l' of ays-=.er..s. ::-"""'''' :r;ec..J..:::.~":" - - - - --..~ -----" --- ,. ~r:.d'''-a-;c:.a-::' E~-iit:cr:r ha.v;; bG~n :l:'ecc:::::.ed ar.c l;oaviEiwea. PK"fSlCAL E?>>1: ::he has EeVe~3.':" b::L':ESo= C'.:1C ab;:a9~ons ,='" ,=f wh::...c~: - telie~je will ~eal ~~::...=kly a~d u~eve~=:~11v. She ,... neurovae..:'..:.l=,::~y 1.:;''C.,ac,,:. ~IAGNOSTIC TESTS: An x-ray of he~ he~l was caken ~UG ~c ~a::"'r. and .:~a~ili~y t:.o__bear_weight or: :.his _area.. 7he;:e is no ec:::::h't\Ucsie cr edema. Sl:e is ____exquieitelr_~~n~er to comFr~eeion en the neel. ~J x-ray =n the AP v~ew shows a ncndis;::lacec ca:'.::ansue :ract.'.lre. Sh-a i'2 s-\~eJ.et.a:::'lY :..:n::nat'.::.re. '!'be la:'-;~==.l view is unrem~rk~blQ. ::>r.:<GN08:e, Ncndieplaced ca:;'caneue f~actu'::-::i ::r.:.ghc. h..se,l.. ?~~: : havG placed her ~n a ahc~t leg wa:king C~Gt. I w.:ll aG~ ha~ oack in ~h~se wQeks f~~ cast eft ~-~ay and cl1.~ica~ ~xarn a~=:.at t.:~e_ 1'/1 I.' Ucrr;( "' :/ l\ivLL !--7 G o RE' RICHEY, LAUREN N. P.lIGE 2 A.pril 291 2C04 Thank you for allowing me to ehare WWD/mjt Dicta~ed but ~ot read ~ faxed. ::': 4/::21/2;)C4 '1'. 4/29/2J'24 ua\.,c; nfl' ""0;;; V"T u~co t.he care of thiJ!~ pacier.t. Beat rQgal~da p ~ill:..~m W. Derl;u':.::., I'LD &,oOULl;1: /1dY rg \lq -- Pdqe if. ORTHOPEDIC INSTITUTE OF PE~~SYD~~IA Patient: DOB: (\C\.}" Da:.:"en ~ 08/13/94 :\', ,,,,"-:l (717,1761-5530 \"-J(j'.J .....~~1 Richey SSN: COO 00 0000 Page #: :.. cta~t ;: =~C6~6CS ---------------------------------------------------------------- 5/l.:l/~004 mloLIlIM II. I:>liNO'1'll, 1'1.1:>. OrB-lCB VISIT ~~?~_~_~~ad Office CHIEF COMPLAINT: Nondieplaced calcar.eue fracture, right. H1S'1'ORY""OFeCMPLA!-!'l""!': The pat.ient retu~5 ':.cday ;;':1:::: i2 ccir:fi wel~. REVIEW OF SYSTEMS: The patient' e rev:..ew cf syeteme, pEl.S!; medical ;-ustc:.:-.c; family histoljt, anc social his':.cry have bElen re~svGl.lu~tad ar.ci reviewed, PnISIC~ EXAPI: She has ekin ie excellent. a~601u~e~y nc p~~r. i~ her h:el. AnJ.::e aligr.nen:. ~:AGNOSTI2 ~~s~s: fract.:.1re. ~::=. :l&c-sr;;.: ~ac~cg~a~~s ~~C~ ~ a;::.;.,C_-=- ._--" ~" -'- ~'_>:>._---.;.. ~.l"'''' D:A~~OS!S: N=ndisplacec calca~eu5 fra=~u~e, ~~g~~, PLAN: She may wean herself from the cru~chas, basis 6~ould she have difficul~y. I will 9 iiG .te:r' O~ ".. Vi'W::/dr.k cc: Ch~rlsD P~rowis~, C.v. via :;v: /J1J V /1 (---- r rl v ~ ---------------------------------------------------------.--------------------- RICHEY, Lauren DOB .3-13-94 April 27 wt I/! 'L ti , 'f - ~ de? /v ~ \~- 2004 - ,( 'W: ?i-( !~( /'!,j~, ~'-' ..... ~ n j /" (""-.Y( ;:tl r/',/!C~~i/ ,".~I~ (_ } --:) ~. . ~L.- ') _/!: Ii f '-' /;' /l '..-"--L':' /fJ Ll/,.Jt .... -' '/ ,I" .~ L.I_ ,/ /f.' / J!_I...LT' /~ , ' -' __~/;~i.i ? I -r -1..-1_, .--'--' "',-r. .L-/~ M-Cynthia Novosel J years ,; ,:/,-/ / '"')'- mcr:..::::s ?;(r.:~'t..;;; L / ~ I ~ , --' ,; , if, -f, t/ t.<---i.:...---.!;.!.....- ie' -, '.'1' rl.A--.:--< ~ ...-L&u;'../!. ~~/:::f..t. ~ .~ '-' c... _..... page 28 /....~ , .'/ /~ , .. ",,' ,.r -_ ~<.- J,'.. TIME. DATE.. DIA.RRHEA: #=.. VOMITING: #.. URINATION: Good COLD: runny nose TEMP:. MISe: .....AivI/ Fj\I I N~"lE..f:-."O~. ;'7 j / /.. ~~ '" '- j.,,! ~I ~. AGE. . PHONE: H-.. Length of symptom.. . Length of sympton~. DecreaseG.. '-.~,.- Color... Consistency. Proj. Decreased... . stuffy nose R. I\;on-pnlJ. Amount.... '::/D: (;,)oJ Cough: dry/barky noar::::~ iu\lseiphlemy COf}stanl Piayl'ul ()CCaSI{)n~l1 J::~SS:i AX.... ............. ..o,:Ci>/TS. "0" ..f"7" ACTIVITY: Nonnal Alert MEDS At Home:. ........~ ...~q I ......\-:-:- -::..-::'C: I .... ._.. ......-.. . .....:., ..... ..,~",\" , ...r.ct~~~.. .frr~rJ.-.. ...~.:""......t)~.'t.~t:-~- t,. .:...':.:.1:'::..-"c. ...:~.-,,7..l.'. 1,--, ............. ....../1' RECOMMENDATIONS. .cI.>~:-.;<.. (~. f'x..:.! ..!/~--""'/ ......k@;(;~>->-; ....}I..</<5.:505(. I T ..f- . .--:"~~'-:-:-:::;:;:::;~:: .. .......'-L." ;r<" . ............./:.. L ''1... .........-j.."j...;.. "-- / --~ ~ :":..A~:-"" I ... rq ...... ......1......... ... z/~ ~,~... (::: :..~;~. .i.,../",\.. . - ALLERGIES~......- boB~~---- PHARMACY: ... 0;) CB MZ MO Amy ~vlK. ...../ . "'H AivUP\! ~ ~:~9{~~~~eWwcwi4cNY AG' DIARRHEA: # .q' Color. ...q.....q.... ConSIstency - VOMITING: # qq.....q..q Proj. Non-proj. Amount.q URL'IATION: Good Decreased 'q... .......q. COLD: runny nose stuffy nuse Cough: dry"/barky TEMP: R AX W. . .~!f"L-' i ill L'........ j)OJOS<:.l PHONE: H- ..q...........q -. Ad- - :7.-' f9 ~/7'. , 6' I({)I , -......)/79 .............!ll............ iviiSC "{'rl()i'tl ',:,.IJ d l"1{ ..,....w......q. 1 J ~ C\.. ..... . L C iJCrCK.... j-/! OQl tm s Length of symptom.. Length of symptom E/D: Good Decreased. ..........q.... hoarse looseJphlemy constant occlsionai ACTIVITY: NonnaI Alert Playful Fussy H j i'---- ::.:.t:,;:.. 'i/"] }:!!-DS1bHulIlt:, ~ ...,. ..1.u'-'1,j~ eo . ,.. .' ...!f :(/ ~ . r" -cC2. ~ {l {..[ L (:;, ..-.M /"\ ',j RECOMMENDATIONS: ~iifij~ J......................... ~~C;~:;;~:::.K .. if!.. ,... AweM -- ALLERGIES DOB.............. ~ t\ 1 '2.~\)~ \J.....A./. / r . .~\ ., ' ~,() ,c.. ~ In. .0 .~(, .1. J. .V .)(j..u'v ,Le , tv:./~' ~ I " I ' /1' ~" / ~. I ;Jx. ~1.(1. I' .1' I ,'/' l/ /~ .1 \ 0r<' ,r""::- v0---' "\X-_ ~.J~-.../ I' ' ~ - I ' . . . I . . . "., /')fldi~ ~ _ t,,/ 0~'-'~ -f;~ - ~-'~ _~c."a") / ...\ Y / lJiJ, ...I-~' j/ ! r-o/r"" ."-1 ~A1:u I.~ u 0 ' ~ .' . I ( / / _ L L.:;;.-c I.!-fj '. _"....0~- y ~y-, '-- :::::..;:r- , ynG. ........- ,'/ // ----------- .) , , MAIN OFFICE :;/ ~U Ij-i 0 1300 Unglestown Road Harisburg. PA 17 J J (] 7 J 7-238-2000 1.800-422-2224 7 J 7-233-3029Ifaxl ::? <( ~'/\jU-STER OFFiCi': 7 J 7-43 1-4000 ATTORNEYS AT LAW '-eSIIt' B. Handler, Retired >.)J. SCOtt Henning :Javld H Rosenberg WA. Fl) Carolyn M. Anner (PA. NY. RNI Marthev..' S. Crosby (PA N)) Gregory M. Feather (PA. NJ) Stepnen G. He~d )asonClmler May 18, 2004 tJ\~~ '2 r: ',~_1}\~J. C~RLlSLE OFFiCE 717-241-2244 Rt:'V,;;IVO:,'-' W\I0N.HHRlaw.com ,-ienning@HHRLaw.com Orthopedic Institute of Pennsylvania 875 Poplar Church Road Camp Hill, PA 17011 Re: OUf Client/Your Patien! Date of Incident Patient Date of Birth : Lauren Richey : 4/20/2004 : 8/13/1994 ='e2J Slr/~,,12darl:: This office has been retained to represent the above indiviou81 rela:!'Ie is :nlur:e.s S~5;2tnS'; as tne result of an incident, for which injuries I understand you have been renaerT,c: :rsarmeG L Please provide us with records concerning this incident only at this time. i ~m enclosing a properlY executed medical release authOrization ana WOUiC rsspectfuily request that you forward to this office at your earliest convenienc/9, copies of all of ycur office records regarding your care of the patient, as well as a complete billing history. We woulc appreciate it if you would provide one-sided copies only. You may release information to your patient's insurance carrier for billing purposes on Iv. If any further treatment is requirec, please send copies of further bills to this office. If you are submitting these bills for payment to an insurance company, please provide this office with copies of the bills you submit. PLEASE DO NOT RELEASE ANY INFORMATION REGARDING THE ABOVE CAPTIONED MATTER TO ANYONE OTHER THAN A REPRESENTATIVE OF THIS OFFICE. Please biil this office for any charges incurred as a result of supplying tile above information. Please contact me with any questions or comments. Thank you for your amicipated cooperation in this matter. WSHlbsv Enclosure cc: Cynthia Novosel Very truly yours, HANt~G~Ros~m .8Y W. ScotfHeru,nng '-- , '\\\,. . ".'; I;"C '11\] ~, .,~' ~. :~~:' .~~\, L?~ W~I t.. ~ --' ORTHO~"DIC INSTITUTE OF ?ENNSYLVkdA (717; 76:1.-5530 Patient: Lauren M. Richey uOB: 08/13/94 SSN: 000000000 C~art f: 23064606 P,s.ge :# 2. 5/12/2004 OFFICE VISIT WILLIAM W. DEMUTH, M.D. -'=~~1':'-=:'JG"EL- fracture. DIAGNOSIS: No~displaced calcaneus fracture, rlgh:. PLF.N , ~0e may wean hersel: frcm the sr.c~ld s~e have diffic~lty. cr'..ltches. .,.'-;11 see r:e~~ ,:;n _ basis \'.:""~D / dnk ,......... C!:arles Dal""cwis.h, ...-." -Ila fax RADIOLOGY RESULTS ~.__ _;-=~=- ~~ClCC~~~~~ '1r::~ !:"::.':::: - -,- ORTHOl-xo.DIC INSTITUTE 01" !)ENNSYL'lA..,".A (717; 761-5530 !)atient: JOB: Lauren M. 08/13/94 Richey SSN: 000 00 cooo =~har:: 3.c",: 23064606 4/21/2004 WILLIAM W. DEMUTH, M.D. OFFICE VISIT T~indle Road Office CHIEF COMPLAINT, Rlght ncndisplaced calcaneu:3 fr3ct'J.~e. HISTORY CF CCMPLAINT, Lauren is a young lady who is n':'::1e ye22:"S of ,:;..-;~. ~""""' seeing te!:' :cr Cha::::-les Ca:-c','V',:,s!:, D.S. :c:- 3. :-:..~::': c::~=:;~=-~eus appareD~ly had a mishap QL sc~ool whelJ. s~e fell ~~tc 5 hole f::-act'J.re. - -~..- Cr:: t~e SC::'::::Cl. -;:::rocert"/ . - . - Thiz occ~r~ed en 4 2Q!2CC~. P.2VISN '2? S"IST=::,lS: RS.1le:i systems, ~a2t ~2C':'=~_ ~_____ a::d soc-=-.:::.1 h.:s::o::::-y r.a.'ve been ::-2c:::::rded 2!:C. :-'2~.c:i.e't.1ec :=~T;'::C-:,:" ~:c.,;;'~"1: She h'::,3 3e"/e::.-:::1 t::--:":1.32S ='.::.-:::: "ilil=- r:e21 Q"~-.::.ckly- ar-lc :1r::e~,-e=:=-:.J.::"lv. ..::t~e.:..3 2::::'-:::-.'::: ::::::: ne~:::-::'''-2::: c...:.":' 2:'_ C," ::= =_::_~NC.s:--= C C::-:::::S''T.5: ;::e2:=- ':;:ZCU':Sl:':=:_-I ::.e::-'lce::: ::~ com;:ressicr: - - _~ee':" . ~ ~c~d~~~iac~~ c2l=ar:e~s ~._"". ,.....-.,-.-"" -----~-,--_. . - -- ~ ---- ---- -- - ,----- '- ---.-- --,--r"", -'..,~ -/=.'2:'.'1 lS :'::::::2ma::::-y;:a:Ci-2, =:::.~-G:\;OS:::S : . ,- - ~-TC::"1al s-;:: i. 3.':: 2:': ~- - - -' - -" -- '--'- ~-'---'-~ ~.-:-2:='-'-:~:~ , f::;;: C2.S~ her of: l:C_ ,:;:. sj,cr:';..2S ',',12.1 .-"-"',- ~';O,,-"~ ._~^- '---~ ~ . 'N=-_ _ FUN: _ ~-::.a' e-:. rl3.cec th:::ee tj,'eeks ". - x-:::a'r a~~ C_':~::2~ '='_v:':~:.. - " - ~ ---~'- ==-me. ',FwD / mj :-: ~etter t:J Char:es Darcwish, D.8. WWD LETTER (Ref) DAr:O\"1ISH 5/12/2004 OFFICE VISIT Trincle ~cad OP~~~o :J.O. CHARLES WILLIAM W. DEMUTH, M.D. CI-E~? C::,!?:""::":L)JT NCTIcisplaced calc3ne~s frac:~re, r=-s~[. HISTORY J" CCMPLF.=~T, The patlent re,::J.::::-::S t:Jday ane: is dcine ','Jell. P.S':JIZ~'.J ':? 5':;.'S:'::::'15. The p2.,:.:e:-u: P s r:=:~,-l~'.'" '':::;: sys:.e::'L'2, ~c.~ ~ med::..cal h':.3:::::r:,--, :3mily ::::..s:.or:(, ane soc.:al hlstory ha';e ~een re-evaluaced and ::-eviewe'.::_ ?:-J:YS I c:..::,,~ :::Z__::"('1: She has acsc:~tely nc pa.:~ i~ cer ~eel. ~~lk:2 a1lsn:7.e:::-r:: ar:c ." - ~ SK~~ ~s 2x=e~~ent_ DIAGNOS~=~ TES~S: A? and lateral radicg~aphs shew stable pcs::..=::..o~ c= =~e 04/21/200~ 08:55 FAX -> T:;:!~l)T_E 4' ~O:_ :Jate 4 - d !- ()~ Time)o.1..j5c/l~r ~)emJl+li Q\ C N 1)., Lf1]J ail l...asr (j .Rrrst q. '7 l.J (' .f_ 51 ~ -2./ v.:>:. -'>-"!: ____ Chfu""t F ~)3C &4 (;; Patiem Name --_._~ !VI Address ...--0 j \..l \ (\ C'U y=~:::~ c: ;-'~:-~, .t'-=::..:~ nP..(- c; -~---"~-------~ -EDq,lf- i"'Co 1'"'11 r. O(O~ oJ' C~I Home fJ: )70';;5 .:..;~ LOOe Phone War!.: SSN DOB ~-I2:,- q1..J E I ,'~ mp oyer _1.... g l\ge . Sex ,-' l- I Marital Status ~i /5) ~ "'\v D Occupation :itre::t "";;;:; .::.:;lL..2C::: :. roilier (: ,\ I \ ^(o"!i1 I /1 \ .\ I \'; V\_!, ~ ~ " ~ C-" _:1 t.: 1 ~ -; i I\-. '~ ,. \, _ 'I DOB C'~;-i~7c; ! I -:1,',,.-> ~ Employer ,\ I N 1'/ (:C,f I ? ather [__i'-. /,,(1":.(:":; c:.mplCye:- .::pouse ~;~'- '; '~'IO: "::IPloye~ Child (School": vV~ Cr-uJ.... ~ Responsi-oie Party if Cl--~.il: =-- :;-z ?Jtematc~/O"L.~er Cor~l2.ct Injury W-s, Accident ~~iptiO:::l (11 i, . , c:;. iML I.d <LJi? p (J - DOl 'i -:;JO-O<-SPOrts ,'1-1Ifl.,..., s+s- ~Le..... J ^ ~IG' .'" R' . "'utn ' 'f'.' nr'''' ..o.''l-r-pro - - "'"'--~ -~_......:. _.._~......... --- fi\I~, "1\__ ' ,,",-', WCl...<l/ r(JU~f""q- --.) ~ r...e.4"""A/1 (..;) ~. -' (A~ --<-,. "M r , CL.- ~ --; X -,..- Date Symptoms first appeared ifnot injury - ?f ...mar:? DiS1JRA..l'JCE n I o . --. -.0 --""f'\, /I -.U,.I ~,-A..u o . c: Address Address ~ ~ i,\ ::..,.- --' S::S8r:C2I"r i ;'\) :f:...t2.- Group :" P oIicy # Group #- oj ""I -, ~ ;-? sC;q 3~ L i? M/LLA / Policy -:;. Subscriber' 5 Name Subscriber.' 5 Na..TIle ...;,cidress Address (0 ~--O"- h ,'1- 1'7" Vv~ P "- F a.mil y Dr. A.ddr~ss SA-v<--<-L Referring Dr. .~_ddress Send Iecterro: --Ie.', ~ q.;....--- .lh\ Far-nily Dr. \ I '-I I Referring Dr. V I :t-<either ~~~s ~-\ ~~ . rY'- HEAL TH HISTORY <~C:'l:: The follmving is vel;' important to us in taking care of your health. Please take time to ccmpleteiy and :lC;:ili::lI~2: all of this information. Please also make sure you update this information as changes OC'::1lT. , , fill om '1 - d f-I....:~ , ~-. ''--' j-i;1 -:) "-~ YV\ _ Patient's Name L- C'1 '_lX' P iI) M. ;Q f C' ~ "')(' Medications You Are Taking (AJ.so list herbal supplements and vitarrrins) .Medication Name Amount Fl"equencv .:'\ ~,,\ .' , ell Chart Number 'V- -' \.; \J-~ Past ~lfedicaI History Have you or members of your family ever been told that any of you have: :Z~p" ~j:s>~<=.~. 1....2S:~ A{ ~ ,'VI -p, .~ ~.-ij ,/ (" /" Y' I '" ( Anemia Asthma I Abnormal Bleeding I Blood clots I phlebic'.5 I Cancer /' nuno: Your You Family Describe r, L .".-.",.,-"'.- _'~"-'-u_,_." Drug abuse Eczema / .;:sonaSJ..:: _ i Epilepsy I seizures ex, / / ~eill"'1 C2::l6tic;:o _--'-..Ie yon taking diet medic.:rr:ion"? >~o_ Ycs~ Other ...6Jlergies ,r; ,--., rl ,,00 " 1/1 p ruO-.- High or low blood preSSllL~ Liver disease I bepatitis I yellow jaundice Kidney I bladder problems LlUlg disease Prostate problems Stroke Thyroid disease Tuberculosis ,- .' ;<; :-\.ilergies (Drugs and Other Ailergies) Penicillin Local..:illesthetic / / No -0ec-reactiQn No ~Yes._-reaction [ [){ rxr CJ (::;."ylocaine, nOVOC:llm~) ulcer in -stomach / duodenum [ ] Osteoporosis [ j [ J Hospitalizations ~.l.nhritis [ ] M '~list serious illness and injuries or ope::-auons md approximate year.) Other bone ./ joint disease [ ] [ ] I Any uervous system disease [] [ ] '/ ear Serious illness. iniurv or SUT!!eT""~ Hosnital I -./. . oJ' ~"_h' ,I/A~/I,,,, h. . /'/ - -~c;1;;~~~;;::i::r-::ahi~~~~ ~nH~~-: )<, CL-- "e,g", ~/ ~- I S . I'''' oca J_-'.lstOry Do you smoke? Do you drink 3lcohol? .uo you use street drugs? "O-'f-~_ Amount No-4;:~ Amount ~~o~Yes _ }'..1Ilount Continued on back of page.. ......,' ' ." :.Junng tn;: past ye:lr'~ ~~ay..:: JOu naG.: 1 heartburn or jndigesrion"7.,_ . 2 bowel movements that were bloody or ta.....ry?, 3 any recent cillmge in your bowel habits? 4 frequent urination during the~ or night". j 6 any recent loss of control of your bladder".. burning with urination".............. ............. difficulty starting your urination? ... ~ S ex.cessive u..rLTlanon? .' . 9 excessive tbirs~:') _. . -.. ".'"'..........-TY"""",,. C'," ~"""'--'T~ .-- '-'''=' _L.'--~c.-._~." y'" _~~....'--" ,,'>- "U_~~~::O' . ~ cm-omc cough?". . chest Dam with acU"\1r; ," racing heart or palpiTations'.. . _ "r __H" - ,,,"C ,-,,- ,~""..-'"", ',\j~J.'':'__~ ~____~ ~J. ,..j..C-"-.L"-'-'-''-'. 15 frequem headaches? .. 16 difficuh:y hearing? ,.. 1 7 dental or other mauth proD kms ') ..... 18 frequent nase bleeds?.... ~ " 1'" II _ _ _l...Y~ e2.S)T_OIUlsmg.:_.. ..' ...___.,._..' .,_~ ._~'. __,.. .u..___H h'" __ _.... __. __ _. ____ _____...__ 'H"" -.....,. 20 skin rashes?.. 21 acbin2 muscles or jointsL... - . . . '1 ~' ",. 22 swallenJomts........... 23 cold hands / feet?... 24 gangrene?.,. 25 loss of consciousness? .... 26 recent lll.L.T!lDneSS l.Tl anTIS or legs? 27 chromc fatigue".. 2:funconuoIle,fbleeamg 1... 29 weight loss".. . 30 weight gain? 31 heat / cald intolerance?....... . The above informa.tion is true :lnd correct to the best I)f lJl.\:" hf'!it'f. '~o _---;/~l~';;~:~ "O~/ ~e, ~ - ;""''1,-., y~,O'<:, _.<J'_ >-......, '10___ Yes ,,/'" ....::SoMeJ-i vY\e:,S " ./ .,o~ !'\~O ~:{es ,- ~H' ~ '-"~ '~o ~ ......;,-------------..' --~_., ~'-< >,',,- ''-'~-, '\10 ....._/ y:;s ~\-O_~"-i-'~~ / No '-~~__ NO~"S T ',- No____ ,m !CS~ No Yes...:::c/ A // e..r,.s i 62..S ::::. '-j--h. i VI .k 'I.' '0_ Y"s~ ;.<.. \ N. - <::.. ~ C\:.1'"ICf ,0 ~;/:Yes_ hE..e. ~ beJ V\~ J'1a Yes No~Yes== N ~. . .;o.~. Yes~ )To ,~~ J::=?-,...z+)<;OcV'cclc'''Dm, N,,::~__ 'r::~/:LUM.DV\<;?5-G >V\ J~ ,"a Yes - ~- / :--;o_~es~_ " ~/ ~'.:o_~ ,-,5__ ,"a Yes - - v'sn. .IN ORTHOPEDIC INSTITUTE OF PENNSYLVANLI.. 875 ?OPLAR CHURC1-i ROAD, C\;\lP HIL~, ?"'. : 7;' i; :)0:1] TRlNDLE ROAD. C.'\:vl? ~nLL. ?\ n~: 1 ;9'j ;:'()P!-.\F~ =Hl!RCH ROAD. SU\l~ iG:;,~.\i',;F ;-:;L~. _c::,-j ?C'-,1/E:RS AVE.. .:--L--\."LIl:.':;GljRC. ~" ;:: .'iC;:r;HE"\~~l_~_~'!}~~2 .~TI:::; 1, ,:-:E::\S::-rE';' fELEPHONE: 761-5530 ,-G z.d-.V /; ~ ~ " /'": ::"" :-:~- PATIEi~T'S NAME The above patient was seen in our citics cn "" The above patient is under my care ar,d may retur~ towork/~on L.J- I ..;;~ C,:C '----.--/ - Limitations: -:-h2 c..cove pauer.: IS presemiYWt2il:/ C:S2.;:;ic'~:. The 2tcv~ ':2T!8..... :,,: ' ,'~'//,/tl, i C?- , '- rli-i. .-- I/!/~ "L,~ ,--,;./', ;'.,/........" ..,'.-, JUL 15, 2004 ## TRN-DATE 1 04/20/04 2 04/20/04 3 05/18/04 4 05/18/04 5 05/18/04 TRISTAN ASSOCIATES 4518 UNION DEPOSIT ROAD HARRISBURG,PA 17111 FEDERAL ID#: 231718571 PHONE!!: (717) 6::2-6105 DOCTOR: BLOOM MD, BRIAN P. REF. DOCTOR: ZEAGER DO, MICHELLE 532400 RICHEY,LAUREN 319 3RD STREET APT 5 ENOLA, PA 17025 CPT/CD DESCRIPTION 73650 XR CALCANEUS 2 VIEWS 70200 XR ORBITS COMP 4 V GATEWAY HEALTH PLAN GATEWAY HEALTH PLAN FR 04-20-04 TO 04-2 PATIENT: RICHEY,LAUREN ICD9/CD 959.7 959.01 AMOUNT 66.00 116.00 -59.40 -122.60 .00 END O? LIST ------------------------------------------------------------------------------- .GO r- . , : ,~1 i':': ".,mENT :\DDRESS .. 'i..' ,::~' dlRTRcOATEh ',.-' . ". ;,:)~: C HOME PHONE (INSURANCE 1)';. GROUP NO. POLICY NO. /---"" -....., ',.,\G,:OSIS/ '-.. /' NEW PATIENT CASTS & SPLINTS G!\.STS -j0~ 1: '02:,~"- - ~- '- EST. PATIENT ',"',-, ~': ,;- =r:': OFFICE CONSULT ".,.) SP~:NTS g'~:;:,~ ~ '0'0,"..1", ,"; ~'JI,jG ;,81,1 99243 99244 %:'~s ~!C .,2.9 i 25 SHORT ..;RM 25 I __'2::;~J'='SLm!GL~C: '29:;j5Sr-iD~T u::,'; 2ND OPINION SUPPLIES PI.ASTER CASTS ~;;C? _,..l,CJ Q,y' '::C7~ ~"~','-,: SYNTHETIC CASTS ><::; ~- .::::::) -". ~,'J IME ',I_,-,STER$P'-:llTS ::;,:;SJ i.ASP ):...:f '-_~,; i',1E :":'JT:4tTIC sp!..::ns .jC:'So ;E~AD ;~:J L/; INJECTIONS _ ::::~52S C';?P'iL Tl.!m!EL Ir)~:C:TlmJ _ :055'J 'HDC'~! S~E.~TH LX,:./...lF_T 2C'551 -;PJDIJ~I C;:;:C:;:: 'j,JSl:ST ;~'\J :C'552 ml[G=~ P(~"::' ~DQ'=';J~r,'i;.:L j[;ill~ ~U::;SM 206Ci5 i'JTEPi,.i[~'A-'-= uD:i'JI Bl.'HS':" 2C3:J :,j1AJOc; .ir.l:rl~>~ :up,'~" ~v _ 'i,,'W "J 'ST 0'.,'1'/ ':~C,~T0r': 1:::C,:::!j\WS', v,'' J."IIT, , CC ' ;i",j;r, cc:~ IJrm:::,i 2 CC ; 2 U ~J Ii')) J3~:~ ~;:;IAM D:ACETAT~ :8 U~JlTS) CC 112 UNITSi 2CC,lCW\lliSI ""AtGAiI ~,y~,; ,)'v DT ~:,rY;K __i):r C:TOCK -JiVE: ;...;1' '-i WORK PHONE .,_,'],-,,1'" .._._ c ;\~.::- '_.' ;;. " LX-RAYS I R ) ~ '"'-:''' ,H' , >SC!:'JF.:: ""il.::-l-,., ,:::.::r:;'JE-l\/-' _,c.r;::; -:::" _::; ~ L. SF ~JE : _ -:::':::J SCJu::.:,c;:$ ::,lJ"-:'/ 721 CD LS S;::I~JE 2\' :'"2' 1J LS S?!~IE :.1\j-\lOP..: 'NiOBLiQUE ;2~~":'LSJV-MORE WiBEr'JDI~,JG ~2'-J PELVIS 11} -:2CD $1 ~OINTS 1-'2\' 7::22D SACRUM COCCY:< 2\.' 72COCCLJNICLE1-2\.... __7?0:C SCAPULA 1-2\'" 72020 SHOULDER 1'1 ~=:J:O SHCULDER " V1CPE ::':'5'J,c.C-JOiIJT-BL;TchML -~:so '"'UME::<US 2\'" 7:':::::-J :::..80VJ :::\_' -~C3D .::"80\,'j3..~\' _7:::090 FOSE.'"RM 2'/ -3iCD ",'IRIS. 2\/ ~:::. ~C, ",VRIST 3V OR ~JI0R: _ _-~';::: ~-L,:tD 2\' ____-:;':OHMJD3-.w 731,,'J ~;",JGER:\I L.CS -';~~:J _,-S:3 ~:GfJ '""!P '\.' _.._/3510 HP:V -352:] BOTH HIP 1') P~!..IIS 735..:.0 '~JFANT PEL\'iS-ChILD -355':' FEMUR:\f ~35c'=' r<rJE: ' OR ::"'.' 3562 KNE.: 3\1 7=555 "\rJEE:-qiL~ERAL E_=<,EC. __J3$.\ Kr,IEE 4V OR 1,10RE I ___73590 L.EG :'/ 73S00;'NKLE}'j -36'CA,'JKL.E3-.1\/ 736::0 FOOT2V -.if c cc ,. <' R3650HEEL2\1 c... 73660 iDES 2\! OGRAMS ____76G66 JT SURVEY :)!-;:T ":DH':'-ST";-:''f]' OF Pl'::\':\-SYLV\~i.\ ~ ; 1 )" !o~j;j "" "i, ,: ;' i~ _~;); i i) !:j; 1.1'0'- C()I "i-j ,i IIFI'(~,!IJ-:', I()P! \;::. CHI H." <'- PO\VER'-) \Vi::\i '":~!\: "!_: .I':::~-! :-;p!";r:c',r- (;M~~I-i ]."\:\: (;:;-;, ;,-;7_7;',17 PHO"<E: 17171 7hl-.3:i.JO --::;;-1:::'::::'( PCP SU}~C ?~{EFERE:"iC'E !I ">YI;,?IT )J:'!NA('!_F \"1') PREFERE;-':C;: FA:-'IILY PIIYSICL\"\j FIRST CONSULT DATE .'~ .DEPT. . {INSURANCE 2; :GROUr>::RO. POLICY NO. SLIP. NO. PATIENT BALANCE GT+lEl'lJ. , I . BALANCE I INSURANCE BALANCE TOTAL BALANCE '. MEDICATION , :",':1 :T'Y- ;'1 ,-. y" ~',y<_::: "-":':'1 ''1- _~LJ;:!M:::::'J ("c' ~,m.\I.jG~.,if)~, :'::;'Ii.',,/CCE'7' :'J 1~' ~ ~:?iiC:::;,C ;"'.I-\-;-,'~"C::,c; ,1G::; ,-~ ::;C:::-:-:; 3::::; -;E::;,COCt: '".5 5~Jl' ,:RC:JCET '0...650 'ERCJl:'ArJ ~:REJ\J1S0NE 5 MGS :JREJr,JlSONE 10 MGS F:EL.';FHJ 500 MGS ,::EL';F~:'i 7':;0 :i!GS - !j~E"ID:" < ~'UPi\GcS,C P~TCHES DU;:;AGES,C P~TC~.:S ELAVIL 10 l'v'lG3 E!.....\\fIL 25 MGS F:LDENE 20 MGS FI..EXERIL 10 MGS mSAMAX 5 ,\fiGS ;OSArvlAX 10 ~'.I1GS iBUPPOi'HJ 6GC ::'lG5 IBUFRO~t}1 SOC ~,lGS L.CDI:,JE 30D iv1GS ,-Cel']E 10D r\"lG:3 LORGEI ~ 0 ;,,1G3 UJRTAB Z,.:;i5CO '/IGS \iGS X:-?';~'J: 50 I'JiGS 'IC;JD:rJ ",!COD,~J ES 'iICOF'ROFE:J \/lDXX 12.5 \1G5 ilDXX :5\'13S \!IGX:< :::ClIv~':JS JOLT,i;REi\I:O MGS VOLTARHI 75 MGS LOF,-;AB ;;,:;CO I RETURN APPOINTMENT DAYS k, ,~~~~S ..~;:YS /~____/' WORK RESTRICTIONS / TESTS /..eAfiERS, UF,-:AB-S,'5CO ,\1GBle;5 MGS CHECK I~J !,'l<;,{ , CHECK OUT . . CONTINGENT FEE AGREEMENT ;Ytvo.seJ CAAL.. KNOW ALL MEN BY lJ-i1:~.~_E"p'~ESENTS, that I, CYNTHIA VOCCt., parent and guardian of LAUREN ~,~ereby retain HANDLER, HENNING & ROSENBERG, LLP, of Harrisburg, Pennsylvania, as my attorneys in this matter to represent me and to process, negotiate, arbitrate a settlement or to institute for me in my name, any legal proceedings or actions that, in their judgment are necessary, against, CPARC, or against anyone else as a result of injuries or damages sustained by EAST PENNSBORO SCHOOL DISTRICT/WEST CREEK HILLS ELEMENTARY, in an incident that occurred on or about April 20, 2004. I agree not to settle, negotiate or adjust the above claim or any proceedings based thereo:1 without the written consent of my said attorneys. In consideration of the services so to be rendered by Handler, Henning & Rosenberg, I hereby covenant, promise and agree to pay them for their professional services rendered, THIRTY-THREE AND ONE-THIRD PERCENT (33 %%) of whatever sum is recovered as a result of settlement without lawsuit; or FORTY PERCENT (40%) of whatever sum is recovered atter lawsuit is filed or in the event of arbitration or mediation. I will reimburse Handler, Henning & Rosenberg for any necessary expenses advanced on my behalf in pursuing my claim. Examples of typical expenses include Court filing fees, investigation, auto mileage, photocopies, court reporters, medical records, expert witness fees, etc. If no money is obtained, client will not owe a legal fee or expenses. I also agree to take possession of my medical files at the conclusion of this case. My failure to take possession of these files within 60 days atter the conclusion of the case will authorize my lawyers to destroy said files. I agree that HANDLER, HENNING & ROSENBERG, LLP may associate additional lawyers to assist with this case and I agree to the sharing of fees between lawyers. I understand the terms herein apply to other lawyers associated on this case. I understand that the association of other lawyers does not increase the amount of the attorney fees at the conclusion of the case. Counsel reserves the right to withdraw if they desire to do so, for any reason(s) they deem proper. I acknowledge that I have read, approved and understood the above Contingent Fee Agreement and I acknowledge having received a copy of the same. The terms set forth herein are accepted. ~ . ~ ~~Jn..;<n1H. j CY HIA NOVogEL,'j::rideAt and guardian of .No vOSe LAUREN NOVOCEL ~ C-'\I ':J.f<.. t c...n e...y ~ndler , enning li I oscznberg,LLP ATTORNEYS AT LAW 1300 Linglestown Road, Harrisburg, PA 17110 Client No: 209414 Matter: 00000 Attorney: WSH PL Pre-Bill No: 16275 Bill Date: October 05, 2005 Lauren Richey c/o Cynthia Novosel 319 3rd Street Apt 5 Enola, PA 17025 INVOICE PAYMENT DUE UPON RECEIPT EXPENSES 06/03/2004 Ilillllli1iVl.scli.lllllllllli <";,i'Hf,,,.,, ,.,mt "11,,.' 08/23/2004 Photography 21 H/H/illffl1i1!~~iiiiiiiiiH/I'III'I'~"IIMiiiiiiiliiiiiiillliliiiil1IIH/liiiiiiiillllllliiiiH/iH/lliii!lillllilllliilllllillililll'l~~I.iiliiiiiiilllllllllilllillliillillllllllil!!mlllllllllml!illllllilIIWiiimililllllillllllllllllljillllii!lli!i!I!"IIII1I1I1I11I1~lIl11l1l1lmlllmlli11II11m 09/14/2004 Book Binding Costs 2.00 illlm!!!Ili!iiiil'liiililiiiillll~l~il~~lIiiiiiiilliiiiiillililililliIliiiiiiiiiiiliiiiiiiiiillliiililllllilllllillliilillllillliliIilllll.~~lliilillllilllllijlillliliiiIIllMII~lIiliilllllllilllllillllillililiillilillillllllllllllilllm/lliIlIIIlIIlIlOOIllIlMIIIIII!I~illlilll~1I1111 01/06/2005 Vendor PROTH OF CUMBERLAND CO; General Case Expense 55.50 '......~lI!~.....i'..'liilliliiiii~i~II~!lBI'ii'llil/lllilililiiiiiiilliifilllililiiii/lllllliliiiiiITIlillllillilllliiiilllllillillillllinlllllillllillll/llMilililllllillllllllilllll!li!liill!/lllii/llilIIIlli!i!!!mlilll/l/l/l/lilll/lilll/liIilMlllmIlIOOIl!/lllll!/lll/llll/llllill/lj~il!llllm 01/06/2005 Vendor SHERIFF OF CUMBERLAND CO; General Case Expense 100.00 iillli(;!1\l1llt1II!1lllilillll~~.I~~gnlllililil!liillillliiiililliliillililillll!ilil!ilIil/lillilllliiiiilliillllilll/l/lIIIIIII~.lliIlllliIIllll!IIIiI/l1IIIilllllllill~liIIl/liillllll!II!liIIlllllllllllliIlIlIIll/I/l11I111111!lliil:!lllilllllll/lIlIil.I/I~li/lil/l!IIIIIII/I/llllll/Ilil 01/25/2005 General Case - REFUND CUMBERLAND SHERIFF -60.90 TOTAL EXPENSES $367.83 Total due this invoice $367,83 $367.83 TOTAL BALANCE DUE ~ndlllr , llnningrr ~ oSllnbllrg,LLP ATTORNEYS AT LAW 1300 Linglestown Road, Harrisburg, PA 17110 ::;Iiem i\JC: 209414 'Vlatter: 00000 --.'- .-'~ _. , ....'\Ll'_!, ::=:', ,I/S:- ,:Ore-Bill ,\ic: '^"'-- OLi .: Bill Date: Octooer 05, 2005 Lauren Richey c/o Cynthia Novosel 319 3rd Street Apt 5 Enola, PA 17025 EXPENSES 06/03/2004 CASE 08/23/2004 PHOT 09/14/2004 BIND 01/06/2005 CASE 01/06/2005 CASE 01/25/2005 CASE 07/20/2005 CASE 08/17/2005 CASE 10/31/2005 ISI 10/31/2005 POS 10/31/2005 POST INVOICE PAYMENT out: UPON RECEFi Vendor CHART ONE INC : General Case EXClerse- 06/03/2004 $26.98 Photography Costs 08/23/2004,: $21.00 Book Binding Costs 09/141~004 '" ~?OO Vendor PROTH OF CUMBERLAND CO; General Case Expense 01/06/2005 .' $q5:59 Vendor SHERIFF OF CUMBERLAND CO; General Case E:xpense 01/06/2005 '$100.00 General Case Expense - REFUND CUMBERLAND SHERIFF 01/25/2005 -$60.99 Vendor PROTH OF CUMBERLAND CO; General Case Expense 07/20/2005$4.00 ' Vendor SUSAN M SIMON; General Case Expense 08/17/2005 $119.70 Document Reproduction 10/31/2005 $73.80 Postage Costs 1~31~OO5 ~2~8 Postage Costs 10/31/2005 $13.17 21.00 2,00 55.50 100,00 -60.90 4.00 119.70 73.80 12.58 13.17 TOTAL EXPENSES $367.83 Total due this invoice $367.83 $367,83 TOTAL BALANCE DUE L..' , ELIZABETH NOT ARFRANCESCO, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : No.05-3555 Civil Term ANTHONY D. NOTARFRANCESCO, (An Individual) and SOVEREIGN BAN CORP AND SOVEREIGN BANK, (A Corporation) : CIVIL ACTION - LAW : JURY TRIAL DEMANDED Defendants. PETITION FOR JOINDER PlJRSlJANT TO Pa. R.C.P. 2232(c) AND NOW, comes the Plaintiff, Elizabeth Notarfrancesco, by and through her attorneys, Meyers, Desfor. Saltzgiver & Boyle, and [1les this Petition for Joinder Pursuant to Pa. R.C.P. 2232(c) and in support thereot: avers as t\)llows: 1. Petitioner is Plaintift~ Elizabeth Notartranccsco, an adult individual residing in Cumberland County, Pennsylvania 2. .Respondent is Defendant, Anthony Notarlrancesco. an adult individual who previously resided in Cumberland County, Pennsylvania and now resides in Baltimore, Maryland (hereinatler "Defendant Notartfancesco "). 3. Plaintiff t11ed a Complaint in the above captioned action on July 14,2005. Plaintiffs Complaint alleges a cause of action j\)\' conversion against Defendant Notarfrancesco and a cause of action jor a violation of the Unilorm Commercial Code against Sovereign Bank. A copy of Plaintiir s Complaint is attached hereto and marked as Exhibit "A", ! I Ii MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 . HAHRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 4. Plaintiffs cause of action arises from the actions of Defendant Notarfrancesco in removing income tax return checks which were payable jointly to Plaintiff and Defendant Notartrancesco and depositing those checks, without Plaintiffs endorsement, into a bank account in Defendant Notartrancesco's name alone. 5. In fashioning her Complaint, Plaintiff relied upon certain representations by Defendant Notarfrancesco that such checks were deposited into an account with Sovereign Bank. 6. As a result of discovery conducted by Plainti tI after the filing of her Complaint, Plaintiff has learned that the joint incomc tax return checks in question were actually deposited into an account in Defendant Notarfrancesco' s name alone that was held by Pennsylvania Commerce Bancorp, lnc. (hcreinafter "Commerce Bank"). 7. Thereafter, Plaintiff filed a Praecipe to Discontinuc this action with regard to Sovereign Bank, because Defendant NotarJrancesco' s representations regarding the account into which the joint income tax return checks were deposited were incorrect. A copy of the Praecipe to Discontinue is attached hereto as Exhibit "B". 8. Commerce Bank is a necessary party to the instant action, as the joint tax return checks were deposited into Defendant Notartrancesco's Commerce Bank account without Plaintiff s authorized endorsement. 9. Pursuant to l3 Pa. C.S.A. S 3420, Commerce Bank may be liable to Plaintiff as a result of its actions in accepting the joint income tax [durn checks for deposit into an account in Defendant Notarfrancesco's name alone without Plaintiff's endorsement. 10. Pursuant to Pa. R.C.P. 2232( c), this Court, at any stage of the action, may order the 4 MEYERS. DESFOR, SALTZGIVER &. BOYLE 410 NORTH SECOND STREET . P.o. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 joinder of an additional person who could have been joined in the action and may stay all proceedings until such person has been joined. II. Defendant Notarfrancesco has f11ed Preliminary Objcctions to Plaintiffs Complaint, a copy of which are attached hereto, as Exhibit "('''. In addition, Defendant Notartrancesco has filed a Praecipe For Listing Case for Oral Argument, which is attached hereto as Exhibit "D". 12. The proceedings in this matter should be stayed in accordance with Pa. R.C.P. 2232(e) until such time as Commerce Bank is joined as a Defendant and has an opportunity to respond to Plaintiffs Complaint. 13. Plaintiff has tiled a Motion for Leave to Amend Complaint concurrently with the instant Petition. A request to add Commerce Bank to the caption as a Defendant in the instant matter is included in Plaintiff s Motion. 14. In accordance with Cumberland Coul1ty Rule of Civil Procedure 20S.2(d), counsel for Plaintiff has sought the concurrence of counsel for Defendant Notarfrancesco in this matter. Counsel for Defendant Notarffancesco does not concur in Plaintiffs Petition for Joinder. 5 I ] , i Ii II MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET . P,O. BOX 1062 . HARRISBURG, PA 17108 1717) 236,9428 . FAX (717) 236-2817 WHEREFORE, Plaintift~ Elizabeth Notarfi'ancesco, respectfully requests that this Honorable Court issue an Order joining Pennsylvania Commerce Bancorp, Inc. and Commerce Bank as a Defendant in the above captioned litigation and that all proceedings be stayed until joinder is accomplished in accordance with Pa. R.C.P. 2232(c) and has had the opportunity to respond to the pending Complaint. Respectfully submitted, ~~< Catherine A. Boyle, Esqu' Attorney ID. No. 76328 Meyers. Desfor, SaItzgiver & Boyle 41 0 North Second Street P.O.13ox 1062 Harrisburg, P A 17108 (717) 236..9438 Attorney for PlaintitT 6 MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 HARRISBURG, PA 17108 ELIZABETH NOT ARFRANCESCO, Plaintiff, v. ANTHONY D. NOTARFRANCESCO, (An Individual) and SOVEREIGN BANCORP AND SOVEREIGN BANK, (A Corporation) Defendant. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : No. 05'"- ).1',<;'5' G;,..j '~ : CIVIL ACTION - LAW : JURY TRIAL DEMANDED () C~ ....., = ~') c... '- ;~'; CJ 'Tl '.... .. filp: \::11', -~I ,_ ,--, r :~ (.~ '---0' j,:!, NOTICE :::.... -' You have been sued in court. If you wish to defend against the claims selforth iifthe~ II following pages, you must take action within twenty (20) days atler this complaini-llnd ~ice:~ 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 LA WYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITHIN INFORMATION ABOUT HIRING A LA WYER. IF YOU CANNOT AFFORD TO HIRE A LA WYER, THIS OFFICE MAYBE ABLE I TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MA Y OFFER . LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. I' I Cumberland County Bar Association 2 Liberty A venue Carlisle, Pennsylvania \70] 3 (717) 249-3166 I Ii !I I EXHIBIT "All MEYERS, OESFOR, SALTZGlvlff'aOYlE 410 NORTH SECOND STREET . P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 ELIZABETH NOT ARFRANCESCO, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : No. 0 S- - y; s'S' C-,~ TQ..v- ANTHONY D. NOTARFRANCESCO, (An Individual) and SOVEREIGN BANCORP AND SOVEREIGN BANK, (A Corporation) : CIVIL ACTION - LAW : JURY TRIAL DEMANDED Defendants. COMPLAINT AND NOW, comes the Plaintiff, Elizabeth Notarfrancesco, by and through her attorneys, Meyers, Desfor, Saltzgiver & Boyle, and files the following Complaint, and in support thereof, avers as follows: I. Plaintiff is Elizabeth Notarfrancesco, an adult individual residing in Cumberland County, Pennsylvania (hereinafter "Plaintiff'). 2. Defendant, Anthony D. Notarhancesco (hereinafter "Defendant Notarfrancesco"), is an adult individual who previously resided in Cumberland County, Pennsylvania and now resides in Baltimore, Maryland. 3. Plaintiffs cause of action against Defendant Notarfrancesco arose in Cumberland County, Pennsylvania. 4. Defendant, Sovereign Bancorp and Sovereign Bank (hereinafter "Defendant Sovereign"), is a corporation which regularly conducts business in Cumberland County, Pennsylvania. MEYERS, DESFOR, $AlTZGIVER & BOYLE 410 NORTH SECOND STREET. FO. BOX 1062 . HARRISBURG, PA 17108 ,...."....", ..,..,'" OA'"JCl ~ c....v /7"-'" "...'" "n...." 5. Plaintiff is married to Defendant Notarfrancesco. Plaintiff and Defendant Notarfrancesco are currently separated and Plaintiff has filed a Complaint in Divorce, which is currently pending in Cumberland County, Pennsylvania. 6. Defendant Notarfrancesco is a Certified Public Accountant and Partner with the accounting firm of Price Waterhouse Coopers, LLP (hereinafter "PWC"). 7. As a result of Defendant Notartrancesco's position with PWC, the parties routinely filed joint income tax returns in several states, including Pennsylvania, New Jersey and New York. 8. In the fall of2003, the parties received joint income tax returns based on their joint income tax filings in these various states. 9. The checks tor these joint income tax returns were delivered to the home of PIaintiff and Defendant Notarfrancesco in Cumberland County, Pennsylvania. 10. Plaintiff saw at least two checks, however the checks subsequently disappeared from the home. When Plaintiff questioned Defendant Notarfrancesco about the checks, he repeatedly represented to PlaintifT that the checks never existed. Defendant Notarfrancesco later representcd to PlaintilTthat his salary from PWC was reduced and that these checks had to be repaid to PWC. 11. Plaintiff never endorsed the joint income tax return checks. 12. Plaintiff recently discovered that as least three joint income tax return checks, totaling $9,674.00 were deposited in an account that Defendant Notarfrancesco maintained with Delendant Sovereign. This account was in Defendant Notarfrancesco's name alone. MEYERS, DES FOR, SAlTZGfVER & SOYlE 410 NORTH SECOND STREET . P.O. BOX 1062 . HARRISBURG, PA 17108 {7'el ?'<I'::,OA?R . ,::,6Y 1"]17\ 'J"l&:_'JQ17 13. Until recently, Plaintiff had no knowledge ofthe existence of the Sovereign Bank account in Defendant Notarfrancesco's name alone. 14. All statements to said account were sent to Defendant Notarfrancesco's place of business, rather than the parties' home. l5. Plaintiff has since discovered that Defendant Notarfrancesco used the funds in the Sovereign Bank account, in large part, to finance an extra-marital affair. including purchasing gifts for his paramour. COUNT I - CONVERSION (AGAINST DEFENDANT NOT ARFRANCESCO) 16. The averments of paragraphs one through fifteen are incorporated herein by reference. 17. Plaintiff had a possessory right to the joint income tax return checks received by the parties. 18. Defendant Notarfrancesco intentionally exercised dominion and control over the joint income tax return checks. 19. Defendant Notarfrancesco's actions in exercising dominion and control over the joint income tax return checks resulted in an unlawful or serious deprivation and interfered with Plaintiff s possessory rights. 20. Defendant Notarhancesco had no lawful justification for depriving Plaintiff of her right to or interfering with her possession of the joint income tax return checks. 21. Defendant Notarfrancesco acted with malice, indifference and/or recklessness MEYERS, DESFOA, SAL12GIVER & BOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236.2817 in converting the joint tax return checks to his individual use. WHEREFORE, Plaintiff prays that this Honorable Court enter judgment against Defendant Notarfrancesco for damages in the amount of $9674.00 plus interest and costs, as well as punitive damages and any other relief that the Court deems appropriate. COUNT II - VIOLA DON OF THE PENNSYLVANIA UNIFORM COMMERCIAL CODE (AGAINST DEFENDANT SOVEREIGN) 22. The averments of paragraphs one through twenty-two are incorporated herein by reference. 23. Pursuant to 13 Pa. C.S.A. 9 3116(b), an instrument payable to two or more persons if not in the alternative is payable to all of them and may be negotiated only by aU of them. 24. Pursuant to ] 3 Pa. C.S.A. 9 3420(a), an instrument is converted if a bank makes or obtains payment with respect to the instrument for a person not entitled to enforce the instrument or receive payment. 25. Defendant Notarfrancesco was not entitled to receive payment for the joint I I I il II i I income tax return checks without the endorsement of Plaintiff. 26. Defendant Sovereign made payment to Defendant Notartrancesco for the joint income tax return checks without the endorsemcnt of Plaintiff. 27. Plaintiff did not consent to the deposit of the joint income tax return checks into the account maintained solely by Defendant Notarfrancesco with I Ii 1\ II Defendant Sovereign. MEYERS, DES FOR, SAlTZGIVER & BOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 " HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 28. Defendant Sovereign acted with malice, indifference and/or recklessness in accepting the joint tax return checks for deposit without Plaintiff s endorsement. WHEREFORE Plaintiff prays that this Honorable Court enter judgment against Defendant Sovereign for damages in the amount of $9674.00 pius interest and costs, punitive damages and any other relief deemed appropriate by the Court, A JURY TRIAL IS DEMANDED. Respectfully submitted, ~C:I Catherine A. Boyle, Esquire Attorney I.D. No. 76328 if~B\j1 '~,',11,_ KeI y K' m th, Esquire Attorney LD. No. 774] 5 Meyers, Desfor, Saltzgiver & Boyle 4] 0 North Second Street P.O. Box 1062 Harrisburg, PA 17108 (717) 236-9428 I' Dated: -, - } (/- ;; D05 Ii ,I MEYERS, DESFOR, SALTZGIVER &. BOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 VERIFICATION I, r'" .' Elizabeth Notarfrancesco statements made in this Complaint , verify that the are true and correct to the bes of my knowledge, information and belief, I understand that fals statements herein are made subject to the penalties of 18 Pa. C.S, Section 4904, relating to unsworn falsification to authQrities. II Dated: ~ , ( 7114/2005 I II Ii d il 1 i II i! !l Ii 1 II I, P Ii .1 I, I Ii " !! Defendant (i I! MEYERS, DESFOR, SALTZG1VEA & BOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 . H.~RRIS8IjRG, PA 17108 (717) 236-9428 . FAX (7i7) 236-2817 ~ I I I ELIZABETH NOTARFRANCESCO, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Y. : No,05-3555 Civil Term ANTHONY D. NOT ARFRANCESCO, : CIVIL ACTION - LAW (An Individual) and : JURY TRlAL DEMANDED SOVEREIGN BAN CORP AND SOVEREIGN BANK, (A Corporation) ....,) c:~] ("') c__--, -'n '".,., -, ('':) l'"-) ,,,,) Defendants. .':':) ~J PRAECIPE TO DISCONTlNm~ TO THE PROTHONOTARY: Kindly discontinue without prejudice the above captioned Complaint filed on July 14, 2005, as to Defendant Soverign Bankcorp and Sovereign Bank only. Pursuant to Pa. R.C.P. 229, all parties have consented in writing to the discontinuance of this action against Defendant Sovereign Bankcorp and Sovereign Banle Respectfully submitted, jl~// f /' (j {/1Yf;1~ U j r Catherine A. Boyle, Esquire Meyers, Desfor, Saltzgiver & Boy c Attorney J.D. No. 76328 410 Nortb Second Street PO. Box 1062 f-Iaf'risburg, PA 17108 (717) 236-9428 Attorney tar Plaintiff EXHIBIT I "Ell Ii MEYERS, DESFOR, SALlZGIVER & BOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 ELIZABETH NOT ARFRANCESCO, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : No.05-3555 Civil Term ANTHONY D. NOTARFRANCESCO, (An Individual) and SOVEREIGN BANCORP AND SOVEREIGN BANK, (A Corporation) : CIVIL ACTION - LAW : JURY TRIAL DEMANDED Defendants. CERTIFICATE OF SERVICE I hereby certifY that on this I!~ day of ~ ~ copy of the attached Praecipe was sent VIA Regular U.S. Mail, postage pre-paid, to: Anthony Notarfrancesco c/o Donald T. Kissinger, Esq. Howett, Kissinger, Conley & Ho[st 130 Walnut Street Harrisburg, PA 17101 Sovereign Bancorp and Sovereign Bank c/o: Marc T. Levin. Esquire Rhoads & Sinon LLP One South Market Square P.O. Box 1146 Harrisburg, P A 17108-1146 I 11 II ~y6~;r MEYERS, DESFOR, SALlZGIVER & BOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 ,2005, a ~ ( Donald T. Kissinger, Esquire Howell, Kissinger, Conley & Holst, P.C. 130 Walnut Street, P.O. Box 810 Harrisburg, P A 17108 Telephone: (717) 234-2616 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLV ANlA ELIZABETH NOT ARFRANCESCO, Plaintiff v. ANTHONY D. NOTARFRANCESCO, (An Individual), and SOVEREIGN BANKCORP AND SOVEREIGN BANK, (A Corporation), Defendants ) ) ) ) ) ) ) ) ) ) ) ) NO. 05-3555 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Elizabeth Notarfrancesco, Plaintiff c/o Catherine A. Boyle, Esquire MEYERS, DESFOR, SALTZGIVER & BOYLE 410 North Second Street P.O. Box 1062 Harrisburg, P A 17108 You are hereby notified to file a written response to the enclosed Preliminary Objections within twenty (20) days of service hereof or a judgment may be entered against you. Date: ?;;7/cJ~ . ( ~~/~ Donald T. Kissinger, Esquir Howett, Kissinger, Conley & Holst, P.c. 130 Walnut Street. P.O. Box 810 Harrisburg, P A 17108 Telephone: (717) 234-2616 Counsel for Defendant Anthony D. Notarfrancesco EXHIBIT I ne" Donald T. Kissinger, Esquire Howen, Kissinger, Conley & Holst, P.C. 130 Walnut Street, P.O. Box 810 Harrisburg, P A 17 t 08 Telephone: (717) 234-2616 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH NOT ARFRANCESCO, Plaintiff v. ANTHONY D. NOTARFRANCESCO, (An Individual), and SOVEREIGN BANKCORP AND SOVEREIGN BANK, (A Corporation), Defendants ) ) ) ) ) ) ) ) ) ) ) ) NO. 05-3555 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT NOTARFRANCESCO'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes Defendant, Anthony D. Notarfrancesco, by and through his counsel, Howett, Kissinger, Conley & Holst, P.C., who hereby files the instant Preliminary Objections to Plaintiffs Complaint: 1. Movant is Anthony D. Notarfrancesco ("Husband"), Defendant in the above- captioned action. 2. Respondent is Elizabeth Notarfrancesco ("Wife"), Plaintiff in the above-captioned action. 3. Pursuant to Rule 1028 of the Pennsylvania Rules of Civil Procedure, a party may file preliminary objections to any pleading limited to the grounds enumerated therein. ('''''''' 4. In accordance with Rule 1028, Husband hereby files the following preliminary objections to Wife's complaint: I. INSUFFICIENT SPECIFICITY OF PLEADING 5. Rule I 028(a)(3) permits a party to object to a pleading that lacks factual specificity. 6. Wife's complaint is insufficiently specific, and fails to permit Husband to prepare an appropriate response thereto, insomuch as Wife fails to allege the extent of her ownership or possessory interest in three tax refund checks purportedly cashed by Husband. Wife does not allege within her complaint that she earned income in the year for which the tax refunds were received, and ownership of a tax refund, regardless of whether the parties file jointly, depends upon the extent a party earned income in the year that generated the tax overpayment. 7. In fact, for all years in which the parties may have received a tax refund between 200 I and 2004, Husband, and Husband alone, earned all income for the parties; Wife was unemployed throughout the latter part of the marriage and, as a consequence, earned no income which may have formed the basis for any tax overpayment. 8. Said complaint is further insufficient factually insomuch as Wife does not allege the factual basis for her assertion that at least three income tax refund checks, totaling $9,674.00, were deposited into Husband's account with Sovereign Ban1e For Wife to prevail upon her tort of conversion against Husband, she must estabIish, inter alia, that the funds belonging to Wife were, in fact, deposited into a separate bank account as opposed to an account to which she had access. 2 WHEREFORE, Defendant, Anthony D. Notarfrancesco, hereby objects to Plaintiffs complaint on the basis of insufficient specificity; he requests the Court enter an order sustaining his objection and require Plaintiff to file an amended complaint alleging specific facts demonstrating the extent of her ownership or possessory interest in the alleged tax refund checks and the basis for her assertion that said checks were deposited into Defendant's Sovereign Bank account. II. LEGAL INSUFFICIENCY (DEMURRER) 9. Wife's claim against Husband is legally insufficient inasmuch as Wife cannot sustain her claim of conversion. Wife's complaint avers that Husband is employed as a Certified Public Accountant with PriceWaterhouseCoopers, LLP but makes no allegations whatsoever that Wife was employed during the year for which a tax refund was allegedly received. As such, Wife's complaint, accepted as true for purposes of a demurrer, establishes that Husband has an ownership interest in the tax refunds; as he owns the property, he cannot be liable for conversion. 10. Wife's complaint, the facts for which are assumed true for purposes of demurrer, do not establish that Wife has any ownership interest in the tax refunds. While Wife has made the general averment that she had a possessory right to the refund, general statements or averments are insufficient for purposes of defeating a demurrer. Wife is required to plead specifically the nature and extent of her interest, and in the absence of such specificity, her claim is legally insufficient. II. The elements of conversion require proofthat Husband interfered with Wife's right to property, which interference was without lawful justification. As Wife's complaint 3 establishes that Husband has a possessory right to the property but does not establish that Wife had a possessory right to the property, Wife's claim for conversion is legally insufficient. WHEREFORE, Defendant Anthony D. Notarfrancesco, hereby objects to Plaintiffs complaint on the basis of legal insufficiency; he requests the Court enter an order sustaining his objection and dismiss Count I of Plaintiffs complaint as against Defendant Notarfrancesco. III. PENDENCY OF PRIOR ACTION 12. Rule I 028(a)(6) permits a party to object to an action where an identical action is pending. 13. Wife filed a complaint for divorce against Husband on or about June 8, 2005, which complaint raises a claim of, inter alia, equitable distribution of marital property. 14. On July 14, 2005, Wife initiated the instant civil action and named Husband as a defendant thereto; said complaint against Husband alleges conversion of tax refund checks generated during the course of the parties' marriage. 15. To the extent Wife has any ownership or possessory interest in tax refund checks received during marriage, her interest is limited to an equitable interest created by Pennsylvania's Domestic Relations law. 16. Section 3501(a) of the Divorce Code defines "marital property" subject to the jurisdiction of a divorce court. 17. Section 3502(a) of the Divorce Code provides that a court shall, upon the request of either party, equitably divide all marital property. 18. Section 3104(a) of the Divorce Code provides that a divorce court shall have jurisdiction to dispose of property between spouses when such a request is raised. 4 19. As the property that comprises Wife's claim for conversion is marital property subject to equitable distribution in the pending divorce action, at action number 05-2937 Civil Term, with the Court of Common Pleas of Cumberland County, the divorce court has exclusive jurisdiction to determine the rights of the parties as to the property at issue and divide it accordingly. WHEREFORE, Defendant, Anthony D. Notarfrancesco, hereby objects to Plaintiffs complaint on the basis of a pending prior action; he requests the Court enter an order sustaining his objection and dismiss Plaintiffs complaint as to Defendant Notarfrancesco, and allow the parties' property rights as to the tax refund check be decided by the divorce court. Respectfully submitted, ~;:I;;~ t- ' Donald T. Kissinger, Esquire Howett, Kissinger, Conley & Ho st, P.c. 130 Walnut Street. P.O. Box 810 Harrisburg, P A 17108 Telephone: (717) 234-2616 Counsel for Defendant Anthony D. Notarfrancesco Date: 5 VERIFICATION I, Donald T. Kissinger, Esquire, hereby swear and affirm that the facts contained in the foregoing Defendant Notarftancesco's Preliminary Objections to Plaintiffs Complaint are true and correct to the best of my knowledge, information, and belief based upon information provided by Defendant and from my own first-hand knowledge and that said facts are made subject to the penalties of 18 Pa. C.S. S4904 relating to unsworn falsification to authorities. Defendant is outside the jurisdiction of this court such that his verification cannot be timely obtained. Date: :r ~ ~ S' " (. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA ELIZABETH NOTARFRANCESCO, Plaintiff v. ANTHONY D. NOTARFRANCESCO, (An Individual), and SOVEREIGN BANKCORP AND SOVEREIGN BANK, (A Corporation), Defendants ) ) ) ) ) ) ) ) ) ) ) ) NO. 05-3555 CIVIL TERM CIVIL ACTION - LAW JURY TRlAL DEMANDED CERTIFICATE OF SERVICE I, Donald T. Kissinger, Esquire, counsel for Defendant Anthony D. Notamancesco in the above-captioned action, hereby certify that a true and correct copy of Defendant Notarfrancesco's Preliminary Objections to Plaintiffs Complaint was served upon Catherine A. Boyle, Esquire, counsel for Plaintiff Elizabeth Notarfrancesco, by depositing same in the United States mail, first class, on August 17, 2005, addressed as follows: Catherine A. Boyle, Esquire MEYERS, DESFOR, SALTZGIVER & BOYLE 410 North Second Street P.O. Box 1062 Harrisburg, PA 17108 Date: Y/1/0C; , . ~~- 7 ~ Donald T. Kissinger, Esquir Howett, Kissinger, Conley & Holst, P.C. 130 Walnut Street. P.O. Box 810 Harrisburg, P A 17108 Telephone: (717) 234-2616 Counsel for Defendant Anthony D. Notarfrancesco IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH NOTARFRANCESCO, ) Plaintiff ) ) v. ) ) ANTHONY D. NOTARFRANCESCO (an adult ) individual) and SOVEREIGN BANCORP and ) SOVEREIGN BANK (a corporation), ) Defundants ) NO. 05-3555 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED PR<\ECIPE FOR LISTING CASE FOR ORAL ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for Argument Court. 1. State matter to be argued: Defendant Anthony D. Notarfrancesco's preliminary objections to complaint, which were filed on August 18,2005. 2. Identify counsel who will argue cases: (a) for Plaintiff: Catherine A. Boyle, Esquire, Meyers, Desfor, Saltzgiver & Boyle, 410 North Second Street, Harrisburg, PA 17101, Telephone: (717) 236-9428. (b) for Defendant: Donald T. Kissinger, Esquire, Howett, Kissinger, Conley & Holst, P.C., 130 Walnut Street, P.O. Box 810, Harrisburg, PA 17108, Telephone: (717) 234-2616. (c) for Sovereign Bancorp and Sovereign Bank: Marc T. Levin, Esquire, Rhoads & Sinon, LLP, One South Market Square, P.O. Box 1146, Harrisburg, PA 17108-1146, Telephone: (717) 231-6600. EXHIBIT I liD" 3. I will notify all parties in writing within two days that this case has been listed for argument. Notification has been accomplished contemporaneously with submission of this praecipe. 4. Argument Court Date: Kindly schedule the matter for argument on November 23,2005. Respectfully submitted, Date: 16/~;0~ " I Donal T. Kissinger, Es 1 HOWETT, KlSSLNGE 130 Walnut Street P.O. Box 810 Harrisburg, P A 17108 Telephone: (717) 234-2616 Counsel for Defendant, Anthony D. Notarfrancesco VERIFICATION I, Elizabeth Notarfrancesco , verify that the statements made in this Petition for Joinder I I of my knowledge, information and belief. I I I [ Ii II II I I II [I Ii !i Ii II , II II are true and correct to the bes I understand that fals statements herein are made subject to the penalties of 18 Pa, C.S. Section 4904, relating to unsworn falsification to authorities. Dated: J /- c1-02 605 Defendant !i I, ;;. !! MEYERS, DESFOR, SALTZGIVEA & BOYLE 410 NORTH SECOND STREET. P.O. BOX 1062 . HARRISBURG. PA 17108 (717) 236-9428 . FAX (717) 236-2!317 ELIZABETH NOT ARFRANCESCO, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : No.05-3555 Civil Term ANTHONY D. NOTARFRANCESCO, (An Individual) and SOVEREIGN BANCORP AND SOVEREIGN BANK, (A Corporation) : CIVIL ACTION - LA W : .Il,RY TRIAL DEMANDED Defendants. CERTlFICA TE OF SERVICE I hereby certify that on this ;;21-- day 0[' November., 2005, a true and correct copy of the foregoing Petition for Joinder Pursuant to Pa.R.C.I'.. was hand delivered, to: Anthony D. Notarihmcesco c/o Donald T. Kissinger, Esquire HOWETT, KISSINGER. CONLEY & HOLST, P.C. 130 Walnut Street P.O. Box 810 Harrisburg, P A 171 08 Commerce Bank and Pennsylvania Commerce Bancorp, Inc. 100 Senate Avenue Camp Hill. Pi\, 1 70] I ~~ Catherine A. Boyle, Esq Attorney for Plaintiff MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 ".l o ~ . ~ . (~'j -"-' 1 C) -':' C,} r~) <>J fJ -:1 '-I :3:.,., r;1.-.c: --I) .-" '.) c'~ '1'1 -.:, .> ''''-' ::<: ELIZABETH NOT ARFRANCESCO, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : No.05-3555 Civil Term ANTHONY D. NOTARFRANCESCO, (An Individual) and COMMERCE BANK AND PENNSYLVANIA COMMERCE BANCORP, INC., (A Corporation) : CIVIL ACTION - LAW : JURY TRIAL DEMANDED Defendants. MOTION FOR LEAVE TO AMEND COMPLAINT AND NOW comes Plaintiff, Elizabeth Notarti'anccsco, by and through her attorneys, Meyers, Desfor, Saltzgiver & Boyle, and f1Ies this Motion for Leave to Amend Complaint, and in support thereof, avers as follows: I. Movant is Plaintiff, Elizabeth Notartrancesco. an adult individual residing in Cumberland County, Pennsylvania. 2. Respondent is Defendant, Anthony Notarli'ancesco. an adult individual who previously resided in Cumberland County, Pennsylvania and now resides in Baltimore, Maryland (hereinafter "Defendant Notarfrancesco"). 3. Plaintiff commenced this action against Defendant by f1ling a Complaint alleging conversion against Defendant Notarlrancesco and a violation of the Uniform Commercial Code by Sovereign Bank. 4. At the time that PlaintitIfiled her Complaint, she rclied upon certain representations by Defendant Notarfrancesco that joint tax return checks payable to Plaintiff and MEYERS, OESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET . p.o. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 Defendant Notarfrancesco were deposited in an account in Defendant Notarfrancesco's name alone, which account was maintained by Sovereign Bank. 5. As a result of discovery conducted by Plaintilf aner the tiling of her Complaint, Plaintiff has learned that the joint income tax return checks in question were actually deposited into an account in Defendant Notarlrancesco' s name alone that was held by Pennsylvania Commerce Bancorp, Inc. (hereinafter "Commerce Bank"). 6. Thereafter, Plaintiff filed a Praecipe to Discontinue this action with regard to Sovereign Bank, as it was clear that Defendant Notartrancesco's representations regarding the account into which thc joint income tax rcturn checks were deposited were incorrect. A copy of the Praecipe to Discontinue is attached hereto as Exhibit ~~A". 7. Concurrently with the instant Motion, Plaintiff has Ii led a Petition for Joinder, seeking to join Commerce Bank as a party to the above captioned action. 8. Subsequent to the filing of her Complaint, Plaintiff discovered that with regard to at least one of the tax return checks in question. sllch check was endorsed with Plaintiffs name, however Plaintiff did not endorse said check and the signature appearing on the check is not Plaintiffs signature. Said check was therel()re accepted by Commerce Bank with an unauthorized signature. 9. In addition, Plaintiff has discovered thaI the actual dDllar amount of the joint tax return checks differs from the amount allegcd in her original Complaint. 10. By this motion, Plaintiff respectfully requests leave of this Honorable Court to file an o ~ MEYERS, DESFOR, SALTZGIVEA & BOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 Amended Complaint against Defendant Notartrancesco and to include Commerce Bank in the caption as a party to this action. A copy of the Amended Complaint which Plaintiff proposes to tile is attached hereto as t:xbibit "B". II. Pursuant to Pa. R.C.P. 1033, a court may grant leave for a party to amend its complaint a any time. 12. The filing of an Amended Complaint will not delay the trial of this action or prejudice Defendants because this case has not been placed at issue and the time for completion of discovery has not passed. 13. In accordance with Cumberland County Rule of Civil Procedure 208.2(d), counsel for Plaintiff has sought the concurrence of counsel tor Defendant Notarfrancesco in this matter. Counsel for Defendant Notartrancesco does not concur in Plaintiffs Motion to Amend her Complaint. WHEREFORE, Plaintiff, Elizabeth Notarfrancesco, respectfully requests that this Honorable Court grant her leave to me an Amended Complaint in the torm attached hereto as Exhibit "B". Respectfully submitted, tM~ (/f Catherine A. Boyle, Esquire Attorney J.D. No. 76328 Meyers, Desfor, Saltzgiver & Boyle 410 North Second Street P.O. Box 1062 Harrisburg. P A 17108 (717)236-9428 Attorney f,)r Plaintiff 4 MEYERS, DESFOA. SALTZGIVER & BOYLE 410 NORTH SECOND STREET. P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 ELIZABETH NOT ARFRANCESCO, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : No.05-3555 Civil Term ANTHONY D. NOTARFRANCESCO, (An Individual) and SOVEREIGN BAN CORP AND SOVEREIGN BANK, (A Corporation) : CIVIL ACTION - LAW : JURY TRlAL DEMANDED G ".., 0 ,= ," C':) 'T1 <:.-', 0 -l (; ~-:1 E ,'I - C;:' W -C-, (:~ --.- ; ,. _.. ,.. ,-) .. - (n ..- '-=:j -'.. 0 , -, '.D :< Defendants. PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Kindly discontinue without prejudice the above captioned Complaint filed on July 14. 2005, as to Defendant Soverign Bankcorp and Sovereign Bank only. Pursuant to Pa. R.C.P. 229, all parties have consented in writing to the discontinuance of this action against Defendant Sovereign Bankcorp and Sovereign Banlc RespectJi.I!ly submitted, ~C;J~~ Catherine A. Boyle, Esquire 1/ Meyers, Desfor, Saltzgiver & Boy\;; Attorney 1.D. No. 76328 410 Norrh Second Street PO. Box 1062 Harrisburg. PA 17 i OS (71 7) 236-94:~8 Attorney for Plaintiff EXHIBIT I "A" MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236.9428 . FAX (717) 236-2817 ELIZABETH NOT ARFRANCESCO, Plaintiff, : rN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v, : No.OS-3555 Civil Term ANTHONY D. NOTARFRANCESCO, (An Individual) and SOVEREIGN BANCORP AND SOVEREIGN BANK, (A Corporation) : CIVIL ACTION - LAW : JURY TRlAL DEMANDED Defendants. CERTIFICATE OF SERVICE I hereby certifY that on this I( 'fjJ. day of ~ .2005, a copy of the attached Praecipe was sent VIA Regular U.S. Mail. postage pre-paid, to: Anthony Notarfrancesco c/o Donald T. Kissinger. Esq. Howett, Kissinger, Conley & Holst 130 Walnut Street Harrisburg, PA 17101 Sovereign Bancorp and Sovereign Bank c/o: Marc T. Levin, Esquire Rhoads & Sinon LLP One South Market Sguarc PO. Box 1146 Harrisburg, PA 171 08-1 ! 46 ~C:F' "- C",hcrioo A. "",Ie, E;qqio/ MEYERS, DES FOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET. P.O. BOX 1062 . HARRISBURG. PA 17108 (717) 236-9428 . FAX (717) 236-2817 ELIZABETH NOT ARFRANCESCO, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : No.05-3555 Civil Term ANTHONY D. NOTARFRANCESCO, (An Individual) and COMMERCE BANK AND PENNSYLVANIA COMMERCE BANCORP, INC., (A Corporation) : CIVIL ACTION - LAW : JURY TRIAL DEMANDED Defendants. AMENDED COMPLAINT AND NOW, comes the Plaintiff~ Elizabeth Notartrancesco, by and through her attorneys, Meyers, Desfor, Saltzgiver & Boyle, and Jiles the following Complaint, and in support thereof, avers as follows: 1. Plaintiff is Elizabeth Notarfrancesco, an adult individual residing in Cumberland County, Pennsylvania (hereinafter "Plaintiff'). 2. Defendant, Anthony D. Notarfrancesco (hereinafter "Defendant Notarfrancesco"), is an adult individual who previously resided in Cumberland County, Pennsylvania and now resides in Baltimore, Maryland. 3. Plaintiff s cause of action against Defendant N otartrancesco arose in Cumberland County, Pennsylvania. 4. Defendant, Commerce Bank and Pennsylvania Commcrce Bancorp, Inc. (hereinafter "Defendant Commerce"), is a corporation which is headquartered in and regularly conducts business in Cumberland County, Pennsylvania. EXHIBIT I 410 NORTH SECt liB" BOYLE HARRISBURG, PA 17108 -2817 5. Plaintiff is married to Defendant Notarfrancesco. Plaintiff and Defendant Notarfrancesco are currently separated and Plaintiff has tiled a Complaint in Divorce, which is currently pending in Cumberland County, Pennsylvania. 6. Detendant Notarfrancesco is a Certified Public Accountant and Partner with the accounting tirm ofPriceWaterhouseCoopcrs, LLP (hercinafter "PWC"). 7. As a result of Defendant Notarfrancesco 's position with PWC, the parties routinely tiled joint income tax returns in several states, including Pennsylvania, New Jersey and New York. 8. In the fall of 2003, the parties received joint incomc tax returns based on their joint income tax f1]ings in these various states. These joint income tax returns totaled approximately $7,910.00. 9. The checks for these joint income tax returns were delivered to the home of Plaintiff and Defendant Notarfrancesco in Cumberland County, Pennsylvania. 10. Plaintiff saw at least two checks; however, the checks subsequently disappeared from the home. When Plaintiff questioned Defendant Notarfrancesco about the checks, he repeatedly represented to Plaintiff that the checks ncver existed. Defendant Notarfrancesco later represented to Plaintiff that his salary from PWC was reduced and that these checks had to be repaid to PWc. 1 I. Plaintiff never endorsed the joint income lax return checks. 12. At least one of the joint income tax rcturn checks was deposited into an account that Defendant Notarfrancesco held with Defendant Commerce. which account was in 2 MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET ~ P.O. sox 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 Defendant Notarfrancesco's name alone. SlIch check was deposited with an unauthorized signature for Plaintiff. 13. Plaintiff believes that Defendant Notartrancesco signed her name to the check that was deposited into his account with Defendant Commercc. ] 4. Plaintiff also believes that Defendant Notartl'ancesco signed her name to at least three additional joint income tax return checks. 15. Plaintiff did not authorize Defendant Notarfrancesco to sign her name to any joint income tax return checks. 16. Until recently, Plaintiff had no knowledge that Defendant Notarfrancesco deposited joint income tax return checks into an account with Defendant Commerce in his narne alone. 17, Plaintiff has since discovered that Defendant Notarfrancesco may have transferred funds from the account with Defendant Commcrce to his Sovereign Bank account in Defendant Notarfrancesco's name alone in ordcr to tinance an extra-marital affair. o -, MEYERS, OESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 COUNT I - CONVERSION (AGAINST DEFENDANT NOT ARFRANCESCO) 18. The averments of paragraphs one through seventeen are incorporated herein by reference. 19. Plaintiff had a possessory right to the joint income tax return checks received by the parties. 20. Detendant Notarfrancesco intentionally exercised dominion and controI over the joint income tax return checks. 21. Defendant Notarfrancesco's actions in exercising dominion and control over the joint income tax return checks resulted in an unlawful or serious deprivation and interfered with Plaintiff s possessory rights. 22. Defendant Notarfrancesco had no lawfuI justification for depriving Plaintiff of her right to or interfering with her possession of the joint income tax return checks. 23. Defendant Notarfrancesco acted with malice, indifference and/or recklessness in converting the joint tax return checks (0 his individual use. WHEREFORE, Plaintiff prays that this Honorable Court cnter judgment against Defendant Notarfrancesco for damages in the amount of $7,91 0.00 plus interest and costs, as well as punitive damages and any other relief that the Court deems appropriate. 4 ! Ii MEYERS, OESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET. P.O. BOX 1062 . HARRISBURG. PA 17108 (717) 236-9428 . FAX (717) 236.2817 COUNT II - VIOLATION OF THE PENNSYLVANIA UNIFORM COMMERCIAL CODE (AGAINST DEFENDANT COMMERCE) 24. The averments of paragraphs one through twenty-three are incorporated herein by reference. 25. Pursuant to 13 Pa. c.S.A. 9 311 Oed), an instrument payable to two or more persons if not in the alternative is payable to all ofthcl11 and may be negotiated only by all of them. 26. Pursuant to 13 Pa. C.S.A. 9 3420(a), an instrument is converted if a bank makes or obtains payment with respect to the instrument lor a person not entitled to enforce the instrument or receive payment. 27. Defendant Notarfrancesco was not entitled to receive payment for the joint income tax return checks without the authorized endorsement of Plaintiff. 28. Defendant Commerce made payment to Dcf'endant Notarjrancesco for the joint income tax return checks without the authorized endorsement of Plaintiff. 29. Plaintiff did not consent to the deposit of the joint income tax return checks into the account maintained solely by Defendant Notarfrancesco with Defendant Commerce. 30. Defendant Commerce acted with malice, inditlerence and/or recklessness in accepting the joint tax return checks for dcposit without PlaintifT s authorized endorsement. 5 I II II MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET . po. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 WHEREFORE Plaintiff prays that this Honorable Court enter judgment against Defendant Commerce for damages in the amount of$7,9IO.OO plus interest and costs, punitive damages and any other relief deemed appropriate by the Court. A JURY TRIAL IS DEMANDED. Respectfully submitted, Catherine A. Boyle, Esquire Attorney J.D. No. 76328 Kelly K. Smith, Esquire Attorney J.D. No. 77415 Meyers, Desfor, Saltzgiver & Boyle 410 North Second Street [>.0, Box 1062 Harrisburg, PA 17108 (71 7) 236-9428 Dated: 6 MEYERS. DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET . po. BOX 1062 . HARRISBURG. PA 17108 (717) 236-9428 . FAX (717) 236-2817 VERIFICATION I, Elizabeth Notarfrancesco , verify that the statements made in this Motion for Leave to Amend Complaint are true and correct to the bes of my knowledge, information and belief. I understand that fals statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. ,Dated: //-c2-~bo5 . Defendant I II I) II !I I i I II I I I) ii II Ii II Ii MEYERS, DES FOR, SALTZGIVEA & BOYLE 410 NORTH SECOND STREET. P.O BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 ELIZABETH NOT ARFRANCESCO, Plaintiff, : IN II-IE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : No.05-3555 Civil Term ANTHONY D. NOTARFRANCESCO, (An Individual) and COMMERCE BANK AND PENNSYLVANIA COMMERCE BANCORP, INC., (A Corporation) : CIVIL ACTfON - LA W : JURY TRlAL DEMANDED Defendants. CERTIFICATE OF SERVICE [hereby certify that on this :<A day of November, :2005, a true and correct copy of the foregoing Motion for Leave to Amend Complaint, was hand delivered, to: Anthony D. NotarJranccsco c/o Donald T. Kissingcr, Esquire HOWETT, KISSINGER, CONLEY & HOLST, P.C. 130 Walnut Street P.O. Box 810 Harrisburg, P A 17108 Commcrcc Bank and Pennsylvania Commcrcc Bancorp, Inc. 100 Senate A venue Camp Hill, PA 17011 i~~t; Catherine A. Boyle, Esquir A ttorney for Plaintiff MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET . P,O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 n i' l r~~ c- C::') <2-" o l' ..... -C." (.c.ni:::::; ;;,": C",' -:: I (....) ~'ll 0';) .,', ,,-) .< ('-"" ELIZABETH NOT ARFRANCESCO, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO.05-3555 Civil Term ANTHONY D. NOTARFRANCESCO, (An Individual) and SOVEREIGN BANCORP AND SOVEREIGN BANK, (A Corporation) : CIVIL ACTION - LAW : JURY TRIAL DEMANDED Defendants. NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Plaintiff, Elizabeth Notarfrancesco's Answer to Defendant Notarfrancesco's Motion to Quash with New Matter 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 LA WYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE. GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY COURT ADMINISTRATOR 4TH FLOOR CUMBERLAND COUNTY COURTHOUSE CARLISLE, PENNSYLVANIA 17013 (717) 240-6200 MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 ELIZABETH NOT ARFRANCESCO, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : No.05-3555 Civil Term ANTHONY D. NOTARFRANCESCO, (An Individual) and SOVEREIGN BANCORP AND SOVEREIGN BANK, (A Corporation) : CIVIL ACTION - LAW : JURY TRIAL DEMANDED Defendants. RULE TO SHOW CAUSE AND NOW, this _ day of , 2005, a RULE is issued upon the Defendant, Anthony D. Notarfrancesco, to show cause why the within Plaintiff, Elizabeth Notarfrancesco's Answer to Defendant Notartranceso's Motion to Quash with New Matter should not be granted. Said Rule returnable at hearing on the day of 2005 at .m. o'clock in Courtroom No. BY THE COURT: 1. 2 MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET. P.O. BOX 1062 . HARRISBURG. PA 17108 (717) 236-9428 . FAX (717) 236-2817 ELIZABETH NOT ARFRANCESCO, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : No.05-3555 Civil Term ANTHONY D. NOTARFRANCESCO, (An Individual) and SOVEREIGN BAN CORP AND SOVEREIGN BANK, (A Corporation) : CIVIL ACTION - LAW : JURY TRIAL DEMANDED Defendants. ORDER AND NOW, this day of ,2005, in consideration of Plaintiff, Elizabeth Notarfrancesco's Answer to Defendant Notartranceso's Motion to Quash and New Matter, it is hereby Ordered: a. Defendant Notarfrancesco is hereby in contempt; b. Defendant Notarfrancesco shall submit to a deposition within ten (10) days of the date of this Order; c. Defendant Notarfrancesco' s Motion to Quash is dismissed; and, d. Defendant Notarfrancesco shall pay Plaintiff s counsel fees, costs and expenses, plus interest incurred as a result of t11ing this Answer and New Matter. BY THE COURT: 1. MEYERS, DESFOR, SAlTZGIVER & BOYLE 410 NORTH SECOND STAEET . P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 ELIZABETH NOT ARFRANCESCO, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO.05-3555 Civil Term ANTHONY D. NOTARFRANCESCO. (An Individual) and SOVEREIGN BANCORP AND SOVEREIGN BANK, (A Corporation) : CIVIL ACTION - LAW : JURY TRIAL DEMANDED Defendants. PLAINTIFF. ELIZABETH NOTARFRANCESCO'S. ANSWER TO DEFENDANT NOTARFRANCESCO'S MOTION TO OUASH WITH NEW MATTER AND NOW, comes the Plaintifl Elizabeth Notarfrancesco, by and through her attorneys, Meyers, Desfor, Saltzgiver & Boyle. and files the following Plaintiff, Elizabeth Notarfrancesco's, Answer to Defendant Notarfrancesco's Motion to Quash, and in support thereof, avers as follows: I. Admitted. 2. Admitted. 3. Admitted. By way offurther answer, PlaintilThas discovered that Defendant Notarfrancesco deposited the joint income tax rejill1d checks into his Commerce Bank account held in his name alone. Accordingly, the action against Sovereign Bancorp and Sovereign Bank was discontinued. PlaintitT f11es contemporaneously with this Answer, a Petition for Joinder and a Motion to Amend the Complaint to include Commerce Bank as a Defendant. 4 MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET. P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 4. Admitted. 5. Admitted. By way offurther answer, Defendant Notarfrancesco fraudulently induced Plaintiff into reconciling with him just long enough to withdraw the above-captioned action by Praecipe. By way of further answer, Plaintifl ret11ed the instant action by Complaint on July 14,2005. 6. Admitted in part. Denied in part. It is admitted that Plaintiff filed a Complaint in Divorce on the stated date. 7. Admitted in part. Denied in part. It is admitted that Plaintiff withdrew the Complaint in Divorce by Praecipe in March 2005. However. Plaintiff was fraudulently induced into doing so by Defendant. It is further denied that this averment has anything to do with the pending action. 8. Admitted in part. Denied in part. It is admitted that PlaintitIwithdrew the instant action and the Complaint in Divorce in March 2005. However, Plaintiff was fraudulently induced into doing so by Defendant. 9. Admitted in part. Denied in part. It is admitted that PlaintifI refiled a Complaint in the instant action on July 14,2005. It is also admitted that Plaintiffrefiled her Complaint in Divorce against Defendant. 10. Admitted in part. Denied in part. It is admitted that Plaintiff believes that Defendant is liable for the tort of conversion for forging her signature on jointly titled state income tax refund checks received in late 2003. It is further admitted that unbeknownst to Plaintiff, Defendant maintained an accoul1t with Sovereign Bank in his name alone. However, Defendant initially forged Plaintiffs signature on the 5 MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET. P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 jointly titled checks and placed them in a Commerce Bank account in his name alone and then later may have transferred said funds to his Sovereign Bank account. Plaintiff files contemporaneously with this Answer. a Petition for Joinder and a Motion to Amend the Complaint to include Commerce Bank as a Defendant. II. Admitted. By way of further answer. Defendant's Preliminary Objections allege that Plaintiff had no property rights to the jointly titled income tax refund checks because he was the only individual who workcd during the tax year. However, by virtue ofthe checks being titled jointly, Plaintiff has propcrty rights in said checks. Also notable, Defendant's Preliminary Objections do not deny negotiating the joint checks without Plaintiffs knowledge or consent. Further, Defendant acknowledged, in writing, that he deposited the joint monies into his Sovereign Bank account held in his name alone. Additionally, any consolidation of this matter with the pending divorce action is improper because such action would prccludc Plaintiff tram seeking any recourse against Defendant Commerce Bank. As stated herein, Plaintifffiles contemporaneously with this Answer, a Petition for Joinder and a Motion to Amend the Complaint to include Commerce Bank as a Defendant. 12. Admitted. It is admitted that Plaintiff initially pleadcd there were three checks totaling $9,674.00. By way offurther answer, Plaintiff now believes there are at least four separate checks totaling approximately $7,910.00. 13. Admitted in part. Denied in part. It is admittcd that Plaintiff and Defendant Notarfrancesco did not separate in the tax year 2002. However, the jointly titled income tax refunds were received in late 2003, just months prior to the initial 6 MEYERS, DESFOR, SALTZGlVER & BOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 separation. Plaintiffs property rights in said jointly titled income tax refund checks cannot be properly handled in equitable distribution until her property rights have been restored to where they were before Defendant's conversion of said checks. Further, Plaintiffs property rights against Defendant Commerce Bank, where said joint checks were negotiated without her authorized cndorsement, cannot be addressed in the divorce action. Consolidating this matter with the divorce action would preclude Plaintiff s right to seek recourse ti'om Dcfendant Commerce Bank. Moreover, in order to properly address Plaintiffs claims, Defendant Notarfrancesco, who is a necessary party, must be included in the pending action. Accordingly, this matter is properly before the Court by way of the instant action. 14. Admitted in part. Denied in part. It is admitted that Sovereign Bank produced documentation in response to Plaintitr s Request for Production of Documents regarding Defendant Notarfrancesco's Sovcreign Bank account. Said documents established that the initial deposit Defendant Notartrancesco indicated, in writing, were income tax refunds were actually checks that he had written to himself from a Commerce Bank account that Defendant Notarti'ancesco also maintained in his name alone. Accordingly, Plaintiff believes that Defendant Notartrancesco forged her signature on the joint income tax refund checks and deposited them into his Commerce Bank account and then may have later transterred them to his Sovereign Bank account. At all times, the joint income tax retimd checks would have required Plaintiffs signature to be negotiated and Plaintiff did not sign same or authorize Defendant Notarfrancesco to do so. 7 MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET. P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236.9428 . FAX (717) 236-2817 15. Admitted in part. Denied in part. It is admitted that Plaintiff withdrew the above- captioned action against Sovereign Bancorp and Sovcrcign Bank. However, Plaintiff files contemporaneously with this Answer. a Pctition for Joinder and a Motion to Amend the Complaint to include Commerce Bank as a Defendant. 16. Admitted in part. Denied in part. It is admitted that Defendant Notarfrancesco's counsel issued such correspondence. It is denicd that such correspondence is supported or warranted. Defendant NotarJrancesco acknowledged in his own handwriting that tax refunds were deposited in his Sovereign Bank account held in his name alone. Further, PlaintitT is now aware that Defendant Notarfrancesco likely forged her signature on said joint income tax checks and placed them in the Commerce Bank account in his name alone. Defendant Notarfrancesco likely then later transferred said funds to his Sovereign Bank account. 17. Admitted. By way of further answer, the documents produced by Sovereign Bank only refute the claims against Defendant Sovcreign Bank, and not Defendant Notarfrancesco or Defendant Commerce Bank. 18. Admitted. By way of further answer, Defendant Notarti'ancesco has yet to appear for a deposition in the above-captioned action. Discovery is being conducted in a separate captioned matter, that being Plaintiff and Defendant Notarfrancesco's divorce action. Issues being dealt with in the separate captioned matters have nothing to do with one another. 19. Admitted. By way of further answer, Defendant Notartrancesco is a partner in the PriceWaterhouseCoopers tax department. making his actions of converting joint 8 MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 . HARRISBURG, PA 1710B (717) 236-9428 . FAX (717) 236-2817 income tax refund checks both intentional and malicious. 20. Admitted. By way of further answer, Defendant Notarfi'ancesco voluntarily moved to Baltimore, Maryland in July 2004. 21. This averment contains conclusions offact or law to which Plaintiff has no knowledge and therefore the averment is deemed denied. 22. This averment contains conclusions offact or law to which Plaintiff has no knowledge and therefore the averment is deemed denied. By way of further answer, Defendant Notarfrancesco is a party to this action and therefore subject to the rules of discovery. Plaintiff has at all times been cooperative in coordinating any scheduled deposition with Defendant Notarfrancesco's schedule. Most recently, Plaintiff sent notice of Defendant Notartrancesco's Novembcr 1,2005 deposition on September 16,2005. Further, on September 30, 2005, Defendant Notarfrancesco, in the presence of his counsel, indicated to PlaintitT s counsel his availability for the November 1, 2005 deposition. See said Notice to Take Deposition and Notice to Produce issued to Defendant Notarfrancesco attached hereto and hereinatler referred to as Exhibit "A." 23. This averment contains conclusions oHact or law to which Plaintiff has no knowledge so therefore the averment is deemed denied. By way of turther answer, Defendant Notarfrancesco has not attended a dcposition in the above-referenced matter. As a party to this action, Defendant Notarfrancesco is subject to the rules of discovery, including having to submit to a deposition. Moreover, Plaintiff has at all times been cooperative in coordinating any schcduled deposition with Defendant Notarfrancesco's schedule. Most recently, PlaintitT sent notice of Defendant Notartrancesco' s 9 MEYERS, DESFOR, SALTZGlVER & BOYLE 410 NORTH SECOND STREET. P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 November 1,2005 deposition on September 16. 2005. Further, on September 30, 2005, Defendant Notarfrancesco, in the presence of his counsel, indicated to Plaintiffs counsel his availability for the November I. 2005 deposition. 24. Admitted in part. Denied in part. It is admitted that Defendant Notarfrancesco's counsel issued correspondence on October 18. 2005. The facts set forth in said correspondence are denied. Defendant Notartranccsco has yet to attend a deposition in this matter. A deposition has been conducted in the divorce matter which is docketed to a separate number. However, consolidating the depositions in two separately docketed matters is inappropriate. Requiring the deposition to be conducted in the divorce matter only would force Defendant Commerce Bank to attend a deposition on matters unrelated to the instant action. FUliher, Plaintiff requires separate times to develop the separate claims set forth in each action. 25. Admitted in part. Denied in part. Counsel's letter speaks for itself. By way of further answer, requiring a deposition to be conducted in the divorce matter only would force Defendant Commerce Bank to attend a deposition on matters unrelated to the instant action. Further, Plaintiff requires separate time to develop the separate claims set forth in each action. 26. Admitted in part. Denied in part. Counsel's letter speaks for itself. By way offurther answer, the Notice for the November 1,2005 deposition was sent to Defendant Notarfrancesco on September 16, 2005. Thereafter. in the presence of his counsel, Defendant Notarfrancesco personally indicated his availability on November 1,2005, to Plaintiirs counsel. Clearly, Defendant Notarfrancesco has no conflict in his 10 MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 schedule and is filing the Motion to Quash as a delay tactic. 27. Admitted in part. Denied in part. Plaintiff acknowlcdges receiving said correspondence, however, Plaintiff denies thc facts set forth therein. Plaintiff is unwilling to consolidate the deposition because doing so would force Defendant Commerce Bank to attend a deposition on matters unrelated to the instant action. Further, Plaintiff requires separate times to dcvelop the scparate claims set forth in each action. 28. Pennsylvania Rule of Civil Procedure 234.4 speaks for itself. By way of further answer, Defendant Notarfrancesco's Motion to Quash 111ed pursuant to Pa. R.C.P. 234.4 is not proper. A party objecting to Notice to Take Deposition must me a Motion for Protective Order pursuant to Pa.R.C.P. 4012. Accordingly, Defendant Notarfrancesco's Motion is improper under said Rules and is a bad faith effort to delay the instant action. 29. Pennsylvania Rule of Civil Procedure 234.4 speaks for itself. By way of further answer: a. This averment contains conclusions of fact or law to which Plaintiff has no knowledge and therefore thc averment is dccmcd denied. By way of further answer, Defendant Notarfrancesco asserts a factual conclusion that has yet to be legally determined. Defendant Notarlrancesco set forth in his own handwriting that the monies placed in his Sovereign Bank account were from joint tax refund checks. Plaintiff is entitled to conduct discovery to explore Defendant's admissions. Further, Plaintiff has evidence to support her II MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 allegations that Defendant Notarfrallcesco has forged her signature on at least one check and deposited same into his Commerce Bank account. Plaintiff believes that at least three othcr forged checks exist. PlaintitI is entitled to explore this matter as well as Defendant Notarfrancesco's use ofthe monies. b. Denied. While Plaintiff acknowledges a prior deposition in the separately docketed divorce matter, said depositions have nothing to do with the instant action. Notably, Defendant Notartrancesco never objected or opposed said deposition. Further, Defendant Notarti'allcesco is a necessary party to the instant action who is subject to discovery. PlaintitTs request for a deposition in the matter is both appropriatc and the most etI1cient way to obtain the necessary evidence to support her claims. PlaintitI has at all times not only provided ample notice for the November I, 2005 deposition, but also coordinated same with Defendant Notarlrancesco's schedule. Defendant Notarfrancesco in the presence of his counsel, indicated directly to Plaintiff s counsel his availability for the November 1.2005 deposition. Plaintiff believes that Defendant Notartrancesco is merely liling this Motion to delay his inevitable admission of liability. Finally, Plaintiff is entitled to discovery in the above-captioned action, particularly to explore Defendant Notartrancesco's own admissions in negotiating the joint tax return checks. Plaintiff would be unable to pursue her rights against Defendant Commerce Bank or any other Defendant, were this matter to bc consolidatcd with the divorce action. As stated herein, Plaintiff now bclievcs that Defendant forged her signature and 12 MEYERS, OESFOR. SALTZGIVER & BOYLE 410 NORTH SECOND STREET. P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 deposited the joint tax return checks into his Commerce Bank account which was held in his name alonc. c. Denied. It is not relevant to this matter as to what discovery Plaintiff has issued in the separate captioned divorce matter. By way of further of answer, only one Notice to Produce has been issued \0 Defendant Notarfrancesco in the above-referenced matter seeking seven (7) items. See Exhibit "A." d. Denied. Defendant Notartrancesco has on prior occasions, in the presence of his counsel, indicated his availability to Plaintiffs counsel. e. Denied. Plaintiffs property rights to said monics as well as a determination of civil liability could not be pursued in the divorce matter. Moreover, as set forth herein, Plaintiff has filed to amcnd hcr Complaint to include Commerce Bank as a Defendant, where Plaintitl believes Defendant Notarfrancesco deposited the joint tax return checks. as a Dcfendant. Plaintiffs rights against Defendant Commerce Bank could not bc pursued in a divorce action. Finally, Defendant Notarfrancesco's request to consolidate is not properly before this Honorable Court. f. This averment contains conclusions or fact or law to which Plaintiff has no knowledge and therefore the averment is deemed denied. By way of further answer, Defendant Notarfrancesco has yet to attend a deposition in the instant action. The noticed deposition is both proper under the Pennsylvania Rules of Civil Procedure, and the most emcien\ way 1\1r Plaintiff to establish her claims. 30. Admitted. By way offurther answer. Plaintiff sceks to conduct appropriate discovery 13 MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 238-2817 in the above-captioned action. Defendant Notarhancesco is a necessary party and is therefore subject to the rules of discovery. Further, PlaintitT seeks to develop the issues in this matter separately rather than combining them all with the very complex divorce matter that is not captioned at this number. Additionally, Plaintiff would be unable to pursue any recourse against Defendant Commerce Bank were the matter to be consolidated with the divorce action. NEW MATTER 31. Paragraphs one through thirty are incorporated herein as if set forth in full. 32. On September 16,2005 Plaintiff issued a Notice to Take Deposition and a Notice to Produce on Defendant Notarfrancesco. The deposition was scheduled for Tuesday, November 1,2005. See Exhibit "A." 33. On September 30, 2005, Defendant Notartranccsco. in the presence of his counsel, indicated to Plaintiff's counsel his availability on November 1,2005. Defendant Notarfrancesco also indicated his availability for October 31,2005. 34. In late October 2005, Defendant Notartrancesco's counsel indicated that this client would not submit to a deposition in this matter unless Plaintiff agreed to consolidate this deposition with the divorce matter. 35. When Plaintiff would not agree, Defendant Notarhancesco, through his counsel, filed a Motion to Quash on Friday, October 28, 2005 al1d indicated on that day, that he would not be attending the November 1,2005 deposition. See counsel's letter dated October 28, 2005, attached hereto and hereinafter referred to as Exhibit "B." 14 MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET. P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 36. Due to Defendant Notarfrancesco' s late refusal to attend the deposition, despite the lack of existence of any Order stating such, Plainti ff was unable to conduct the deposition on November 1,2005. Defendant Notartrancesco sought relief from this Honorable Court for attendance at the deposition pursuant to Pa.R.C.P. 234.4. However, Pa.R.C.P. 234.4 does not address a Notice to Take Deposition. 37. A party seeking protection from a deposition must tile for a Protective Order pursuant to Pa.R.C.P. 4012. 38. Further, Pa.R.C.P. 4013 states in relevant part, that: The f11ing of a motion for a protective order shall not stay the deposition, production, entry on land or other discovery to which the motion is directed unless the court shall so order. 39. Accordingly, Detendant Notartrancesco was rcquircd to attend the November 1,2005, deposition because no order was issued protecting him from attending same. 40. Further, because Defendant Notarfrancesco has t1led a Motion to Quash pursuant to Pa.R.C.P. 234.4, Plaintiff is entitled to relief under Pa.R.C.P., 234.5(b) which provides in relevant part: If a party fails to comply with a subpoena. a noticc to attend or a notice to produce, the court may enter any ordcr imposing appropriate sanctions authorized by Rulc 40 19( c) and, if the failure to comply is for the purpose of delay or in bad faith, the court may impose on the party thc rcasonable expenses actually incurred by the opposing party by reason of such delay or bad faith, including attorney's fces. 41. Plaintiff believes Defendant Notarfrancesco's Motion to Quash is sought in bad faith and is nothing more than an attempt to delay the instant action. 42. Notably, it is Detendant Notartrancesco who indicated in writing his deposit of the MEYERS, DESFOR'l~LTZGIVER & BOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 j oint income tax refund checks. 43. Since t11ing the instant action, Plaintiff has discovered additional evidence supporting her allegation that Defendant Notartrancesco forged her signature and converted the joint checks. 44. Plaintiff believes Defendant Notartrancesco is seeking the Motion to delay his inevitable admission of liability. 45. Plaintiff has incurred substantial attorney's fees, costs and expenses having to respond to Defendant Notarfrancesco's improper Motion. WHEREFORE, Plaintiff, Elizabeth Notartrancesco. respectfully requests this Honorable Court enter an Order stating the following: a. Defendant Notarfrancesco is hereby in contempt; b. Defendant Notarfrancesco shall submit to a deposition within ten (10) days of the date of this Order; c. Defendant Notarfrancesco's Motion to Quash is dismissed; and, d. Defendant Notarfrancesco shall pay PlaintitTs counsel fees, costs and expenses, plus interest, incurred as a result of tiling this Answer with New Matter. Respectfully submitted, II II Catherine A. Boyle, Esquir Attorney I.D. 76328 Meyers, Desfor, Saltzgiver & Boyle 410 North Second Street P.O. Box 1062 Harrisburg, P A 17108 (717)236-9428 Attorney for Plaintiff MEYERS, DESFOR, MLTZGIVEA & BOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 . HARRISBURG. PA 17108 (717) 236-9428 . FAX (717) 236-2817 ELIZABETH NOT ARFRANCESCO, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : No.05-3555 Civil Term ANTHONYD. NOTARFRANCESCO, (An Individual) and SOVEREIGN BAN CORP AND SOVEREIGN BANK, (A Corporation) : CIVIL ACTION - LA W : JURY TRIAL DEMANDED Defendants. NOTICE TO TAKE DEPOSITlON TO: Anthony D. Notarfrancesco c/o Donald T. Kissinger, Esquire Howett, Kissinger & Conley, P.c. 130 Walnut Street Harrisburg, P A 1710 I PLEASE TAKE NOTICE that pursuant to Pennsylvania Rules of Civil Procedure Nos. 4007 and 4017.1, Catherine A. Boyle, Esquire, Attorney for Elizabeth Notarfrancesco, will take the deposition of Anthony D. Notarfrancesco, upon oral examination for the purpose of discovery and for use in evidence in the above action or for both purposes before a Notary Public of the Commonwealth of Pennsylvania, at the offices of Meyers, Desfor. Saltzgiver & Boyle, 410 North Second Street, Harrisburg, Pennsylvania on Tuesday, November 1, 2005 at 9:30 a.m., or other person authorized to take depositions on all matters, not privileged, which are relevant and material io the issues and the subject matter involved in the pending action and that said Anthony D. Notarfrancesco is required to appear at the aforesaid time at the above address and submit to such examination before said Notary Public. MEYERS. DESFOR. SAL TZGIVER & BOYLE Bv 'athcrine A. Bo\le, Esquire Attorney l.D. No. 76318 Dated: 't II b los- ~ I EXHIBIT I I \i Ii I "A" MEYERS, DES FOR, SAlTZGIVER & BOYLE 410 NORTH SECOND STREET. P.O. BOX 1062 . HARRISBURG, PA 17102 (717) 236.942R . FAX {717\ ?'iR.?P.17 ELIZABETH NOT ARFRANCESCO, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : No.05-3555 Civil Term ANTHONY D. NOTARFRANCESCO, (An Individual) and SOVEREIGN BANCORP AND SOVEREIGN BANK. (A Corporation) : CIVIL ACTION - LA W : JURY TRIAL DEMANDED Defendants. CERTIFICATE OF SERVICE I hereby certity that on this II;; t.i day of ~~ , :2005 a copy of the attached I Notice to Take Deposition of Anthony D. Notartrancesco. was sent via first class mail, postage prepaid, to: Anthony D. Notartrancesco c/o Donald T. Kissinger, Esquire Howett, Kissinger & Conley, P.e. 130 Walnut Street Harrisburg, P A 17101 I II i , Sovereign Bancorp and Sovcreign Bank c/o: Marc 1. Levin, Esquire Rhoads &: Sinon LLP One South Market Square P.O. Box 1146 Harrisburg, P:\ 171 08-1146 I i \1 i i ~C~ Catherine j\. Boyle, Esquire V Ii !I I, II MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET. p.o. BOX 1062 . HARRISBURG, PA 17108 (717)236.9428 . FAX (717) 236-2817 ELIZABETH NOT ARFRANCESCO, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : No.05-3555 Civil Term ANTHONY D. NOTARFRANCESCO, (An Individual) and SOVEREIGN BANCORP AND SOVEREIGN BANK, (A Corporation) : CIVIL ACTION - LAW : JURY TRIAL DEMANDED NOTICE TO PRODUCE TO: Anthony D. Notarfrancesco c/o Donald T. Kissinger, Esquire Howett, Kissinger & Conley, P.C. 130 Walnut Street Harrisburg, P A 17101 I I[ I' II I i! !I I II !I 2. I! ! I II You are directed to produce the attached at the deposition on November 1,2005 at 9:30 a.m., before Catherine A. Boyle, Esquire, in the offices of Meyers & Desfor, Saltzgiver & Boyle, 410 North Second Street, Harrisburg, Pennsylvania 17101. I. Copies of all itemized monthly statements, including account number, of all checking accounts (both joint and individual). savings accounts, brokerage or security accounts, or any other account held in any financial institution by you or for your benet1t or that you hold for the benet1t of another or over which you have signatory pov;er, for the time period January I. 2001 to the present. Copies of any and all checks, front and back, vHillen by you tram any account maintained by you, individually or jointly with another, or for your benefit, for the MEYERS, OESFOR, 5ALTZGlVEA & BOYLE 410 NORTH SECOND STREET. p.o. BOX 1062 . HAAAJSBURG. PA 17108 (717) 236.9428 . FAX (717) 236-2817 time period January 1,2001 to the present. 3. Copies of any and all checks, front and back. deposited into any account held by you, individually or jointly with another, or held for your benetit for the time period January 1, 2001 to the present. 4. Copies of any and all information provided by you to any financial institution for any reason, during the time period January 1,2001 to the present. 5. Copies of any and all information provided by you to any financial institution for purposes of establishing wire transfer capabilities to/from any account held by you, individually or jointly, or held for your benetit. 6. Copies of any signature cards executed by you and/or anyone with whom you hold an account. 7. Documentation of any and all expenditures made with the funds contained in Sovereign Bank Account #0204 1030321, for the time period January 1,200 I to the present. 2 i I ,I II MEYERS, DES FOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET 4 P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236.9428 . FAX (717) 236-2817 ELIZABETH NOTARFRANCESCO, Plaintiff, : [N THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO.05-3555 Civil Teffil ANTHONY D. NOTARFRANCESCO, (An Individual) and SOVEREIGN BANCORP AND SOVEREIGN BANK, (A Corporation) : CIVIL ACTION - LAW . JURY TRIAL DEMANDED Defendants. CERTIFICA TE OF SERVICE I hereby certify on this J l.o'fu. day of ~ 2005. that the foregoing Notice to Produce was mailed, first-class. postage pre-paid to: Anthony D. Notarfrancesco c/o Donald T. Kissinger. Esquire Howett, Kissinger & Conley, Pc. 130 Walnut Street Harrisburg, PA 17101 I I II II II i.l Sovereign Bancorp and Sovereign Bank c/o: Marc T. Levin. Esquire Rhoads & Sinon LLP One South Market Square PO. Box 1]46 Harrisburg, PA 171 08-1146 Catherinc A. BOYle, Esquire Attorne\' for Plaintiff MEYERS, DESFOR, SALl'ZGIVER & BOYLE 410 NORTH SECOND STREET. P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 LAW OFFICES OF HOWETT, KISSINGER, CONLEY & HOLST, P.c. 130 W ALNlIT STREET POST OFFICE BOX 810 HARRISBURG, PENNSYLVANIA 17108 JOHN C. HOWEIT, JR. DONALD T. KISSINGER CINDY S. CONLEY DARREN 1. HOLST (717) 234,2616 FAX (717) 234-5402 DEBRA M. SHIMP Legal Assistanr October 28, 2005 VIA HAND DELIVERY Catherine A. Boyle, Esquire MEYERS, DESFOR, SAL TZGIVER & BOYLE 410 North Second Street P.O Box 1062 Harrisburg, P A 17108 Re: Notarfrancesco v. Nolitrfi'ancesco Dear Cathy: I enclose herein a copy of a Motion to Quash that our office is filing on behalf of Mr. Notarfrancesco this atlemoon. Said motion seeks to quash the November I" deposition in the civil action. Please do not hesitate to contact Don to discuss matters. In light of the motion. neither Mr. Notarfrancesco nor Don will be appearing for the November 1" deposition. Sincerely. ~~ Darren J. Holst DJH/djk Enclosure cc: Anthony D. Notartrancesco (w/encl) EXHIBIT I IIBII I I VERIFICATION I, Elizabeth Notarfrancesco , verify that the statements made in this Plaintiff, Elizabeth Notarfrancesco's Answer to Defendant Notartrancesco's Motion to Quash with New Matter are true and correct to the bes of my knowledge, information and belief. I understand that fals statements herein are made subject to the penalties of 18 Pa, C,S. Section 4904, relating to unsworn falsification to authorities. I Dated: 11-2-2005 Defendant Ii II i[ I. ii I Ii " 'i I' I] I !I " " il !: MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET . P,O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 ELIZABETH NOT ARFRANCESCO, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : No.05-3555 Civil Term ANTHONY D. NOTARFRANCESCO, (An Individual) and SOVEREIGN BANCORP AND SOVEREIGN BANK, (A Corporation) : CIVIL ACTION - LAW : JURY TRIAL DEMANDED Defendants. CERTIFICATE OF SERVICE I hereby certify that on this J J.-. day of November, 2005, a true and correct copy ofthe foregoing Plaintiff, Elizabeth Notartrancesco's, Answer to Defendant Notarfrancesco's Motion to Quash with New Matter, was hand delivered, to: Anthony D. Notarti'ancesco c/o Donald T. Kissinger, Esquire HOWETT, KISSINGER, CONLEY & HOLST, P.C. 130 Walnut Street P.O. Box 810 Harrisburg, P A 17108 Catherine A. Boyle, Esqmr Attorney for Plaintiff I II MEYERS, DESFOR, ~LTZGIVER & BOYLE 410 NORTH SECOND STREET. P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 n (~.': \ j- <p " .~..~ 1::_ -f ~:1, ../- \::~ , -,..~ . ,..' , -..... .".-.- { .> ...~ o -T" .-' ~..- -"\""\ \'\~\j~ -::l ::> '-:: C,.J N (-) en ~~ ~y .3:. .- ELIZABETH NOTARFRANCESCO, Plaintiff, : IN THE COIJRT OF COMMa : CUMBERLAND COUNTY, P R.f<::CEIVE NOV (I J. 2005 EA~lvL. IA '>- v. : No.05-3555 Civil Term ANTHONY D. NOTARFRANCESCO, : CIVIL ACTION - LAW (An Individual) and : JURY TRIAL DEMANDED SOVEREIGN BAN CORP AND SOVEREIGN BANK, (A Corporation) Defendants. RULE TO SHOW CAUSE r AND NOW, this ---'ili day of -----11 "v ( "1 L c> I ,2005, a RULE is issued upon ]) tcJ1dw 1..!: , Pennsylvania Commerce Bancorp, Inc. and Commerce Bank to show cause why the within Petition for Joinder should not be granted. :J...CJ n ' days. t"D V'-1 .$eJ'v lee.. . Said Rule returnable in BY THE COURT: /J '///l fly/ I "J(" 0 U' (/ v 1. 0-rY ~\j MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236.9428 . FAX (717) 236-2817 :!. S'J :Z lid 6 - ;\ON SOOZ 1'""ln>,.~, 'I'" , -1Hl .10 I\O-LUi ~,-,rr-,--,-,'~,.J::'I :I 38;.::J:!(}-{1:lltj ELIZABETH NOTARFRANCESCO, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : No.05-3555 Civil Term ANTHONY D. NOTARFRANCESCO, (An Individual) and SOVEREIGN BAN CORP AND SOVEREIGN BANK, (A Corporation) : CIVIL ACTION - LAW : JURY TRIAL DEMANDED Defendants. ORDER AND NOW, this day of .2005, upon consideration of Plaintiff, Elizabeth Notarfrancesco's Petition for Joindcr pursuant to Pa. R.C.P. 2232(c), it is hereby ORDERED that Pennsylvania Commerce Bancorp, Inc. and Commerce Bank are hereby joined as a Defendant to this action and that all proccedings are stayed until such time as Defendant Pennsylvania Commerce Bancorp, lnc. and Commerce Bank, has had the opportunity to respond to Plaintiffs Complaint. BY THE COURT: J. MEYERS, oeSFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 ELIZABETH NOTARFRANCESCO, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : No.05-3555 Civil Tcrlll ANTHONY D. NOTARFRANCESCO, (An Individual) and SOVEREIGN BAN CORP AND SOVEREIGN BANK, (A Corporation) : CIVIL ACTION - LA W : JURY TRIAL DEMANDED Defendants. PETITION FOR JOINDER PURSUANT TO fa, R.C.P. 2232(c) AND NOW, comes the Plaintijf Elizabeth Notarfrancesco, by and through her attorneys, Meyers, Desfor, Saltzgiver & Boyle, and t1les this Petition for Joinder Pursuant to Pa. R.C.P. 2232(c) and in support thereot: avers as follows: I. Petitioner is Plaintifj~ Elizabeth Notartrancesco, an adult individual residing in Cumberland County, Pennsylvania 2. .Respondent is Defendant, Anthony Notartrancesco. an adult individual who previously resided in Cumberland County, Pennsylvania and now resides in Baltimore, Maryland (hereinafter "Defendant Notartrancesco"). 3. Plaintiff tiled a Complaint in the above captioned action on July 14,2005. Plaintiffs Complaint alleges a cause of action for conversion against Defendant Notarfrancesco and a cause of action for a violation of the Uniform Commercial Code against Sovereign Bank. A copy of Plaintiffs Complaint is attached hereto and marked as Exhibit "A". MEYERS, DESFOR, SALTZGIVER & aOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 4. Plaintiff s cause of action arises from the actions of Defendant Notarfrancesco in removing income tax return checks which were payable jointly to Plaintiff and Defendant Notarfrancesco and depositing those checks, without Plaintiffs endorsement, into a bank account in Defendant Notartrancesco's name alone. 5. In fashioning her Complaint, PlaintitT relied upon certain representations by Defendant Notarfrancesco that such checks were deposited into an account with Sovereign Bank. 6. As a result of discovery conducted by PIaintitT atter the t1Iing of her Complaint, Plaintiff has learned that the joint income lax return checks in question were actually deposited into an account in Defendant Notarti'anccsco's name alone that was held by Pennsylvania Commerce Bancorp, Inc. (hereinafter "Commerce Bank"). 7. Thereafter, Plaintiff filed a Praecipe to Discontinue this action with regard to Sovereign Bank, because Defendant Notarfrancesco's representations regarding the account into which the joint income tax return checks were deposited were incorrect. A copy of the Praecipe to Discontinue is attached hereto as Exhibit "B". 8. Commerce Bank is a necessary party to the instant action, as the joint tax return checks were deposited into Defendant Notarfrancesco' s Commerce Bank account without Plaintiff s authorized endorsement. 9. Pursuant to 13 Pa. C.S.A. S 3420, Commerce Bank may be liable to Plaintiff as a result of its actions in accepting the joint income tax return checks for deposit into an account in Defendant Notarfrancesco's name alone without Plaintiffs endorsement. 10. Pursuant to Pa. R.C.P. 2232(c), this Court. at any stage of the action. may order the 4 MEYERS, DESFOR, SALTZGIVER & BOYLE 4iQ NORTH SECOND STREET . P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236.9428 . FAX (717) 236-2817 joinder of an additional person who could have been joined in the action and may stay all proceedings until such person has been joined. 11. Defendant Notarfrancesco has filed Preliminary Objections to Plaintiffs Complaint, a copy of which are attached hereto, as Exhibit "Coo. In addition, Defendant Notarfrancesco has filed a Praecipe For Listing Case for Oral Argument, which is attached hereto as Exhibit "D". 12. The proceedings in this matter should be stayed in accordance with Pa. R.C.P. 2232(c) until such time as Commerce Bank is joined as a Defendant and has an opportunity to respond to Plaintiffs Complaint. 13. Plaintitfhas filed a Motion for Lcave to Amend Complaint concurrently with the instant Petition. A request to add Commcrce Bank to the caption as a Defendant in the instant matter is included in Plaintit1's Motion. 14. In accordance with Cumberland County Rule of Civil Procedure 208.2(d), counsel for Plaintiff has sought the concurrence of counscl for Defendant Notarfrancesco in this matter. Counsel for Defendant Notartrancesco does not concur in Plaintiffs Petition for Joinder. 5 MEYERS, DESFQR. SALTZGIVER & BOYLE 410 NORTH SECOND STREET.. P.O. BOX 1Q62 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 WHEREFORE, Plaintiff, Elizabeth Notar/rancesco, respectfully requests that this Honorable Court issue an Order joining Pennsylvania Commerce Bancorp, Inc. and Commerce Bank as a Defendant in the above captioned litigation and that all proceedings be stayed until joinder is accomplished in accordance with Pa. R.C.P. 2232(c) and has had the opportunity to respond to the pending Complaint. Respectfully submitted, ~< Catherine A. Boyle, Esqu' Attorney J.D. No. 76328 Meyers, Destor, Saltzgiver & Boyle 4]() North Second Street P.O. Box 1062 Harrisburg, P A 17108 (717) 236-9438 Attorney tor Plaintiff 6 MEYERS, DESFOA, SALTZGIVER & aOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 ELIZABETH NOTARFRANCESCO, Plaintiff, v. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : No. 0 <;- ~5'_( ~ Ct;,.j ~ ANTHONY D. NOTARFRANCESCO, (An Individual) and SOVEREIGN BAN CORP AND SOVEREIGN BANK, (A Corporation) : CIVIL ACTION - LAW : JURY TRIAL DEMANDED Defendant. o ':- '" C:~ c...::) ~',~'" o -n --I 'T fil-, r ""1:)1'",'1 .~-) 'J L r'- NOTICE ):.,. <: You have been sued in court. If you wish to defend against the claims se{forth iitthe,( r following pages, you must take action within twenty (20) days after this complainQind ~ice;Q 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 LA WYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITHIN INFORMATION ABOUT HIRING A LA WYER. IF YOU CANNOT AFFORD TO HIRE A LA WYER, THIS OFFICE MAYBE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 2 Libcrty Avenue Carlisle, Pennsylvania] 7013 (717) 249-3166 EXHIBIT I IIAn I II MEYERS, DESFOR, $AlTZGIV BOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236,9428 . FAX (717) 236.2817 ELIZABETH NOTARFRANCESCO, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. :No. 05- 35't{'g ~ JI1--v- ANTHONY D. NOTARFRANCESCO, (An Individual) and SOVEREIGN BANCORP AND SOVEREIGN BANK, (A Corporation) : CIVIL ACTION - LAW : JURY TRIAL DEMANDED Defendants. COMPLAINT AND NOW, comes the Plaintiff, Elizabeth Notar1rancesco, by and through her attorneys, Meyers, Desfor, Saltzgiver & Boyle, and files the following Complaint, and in support thereof, avers as follows: 1. Plaintiff is Elizabeth Notarfrancesco, an adult individual residing in Cumberland County, Pennsylvania (hereinatler "Plaintiff'). 2. Defendant, Anthony D. Notar1rancesco (hereinafter "Defendant Notarfrancesco"), is an adult individual who previously resided in Cumberland County, Pennsylvania and now resides in Baltimore, Maryland. 3. Plaintiffs cause of action against Defendant Notarfrancesco arose in Cumberland County, Pennsylvania. 4. Defendant, Sovereign Bancorp and Sovereign Bank (hereinafter "Defendant Sovereign"), is a corporation which regularly conducts business in Cumberland County, Pennsylvania. MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET. P.O. BOX 1062 .. HARRISBURG. PA 17108 (717) 236-9428 . FAX (717) 236-2817 5. Plaintiff is married to Defendant Notarfrancesco. Plaintiff and Defendant Notarfrancesco are currently separated and Plaintiff has filed a Complaint in Divorce, which is currently pending in Cumberland County, Pennsylvania. 6. Defendant Notarfrancesco is a Certified Public Accountant and Partner with the accounting firm of Price Waterhouse Coopers, LLP (hereinafter "PWC"). 7. As a result of Defendant Notartrancesco's position with PWC, the parties routinely filed joint income tax returns in several states, including Pennsylvania, New Jersey and New York. 8. In the fall of2003, the parties received joint income tax returns based on their joint income tax filings in these various states. 9. The checks for these joint income tax returns were delivered to the home of Plaintiff and Defendant Notarfrancesco in Cumberland County, Pennsylvania 10. Plaintiff saw at least two checks, however the checks subsequently disappeared from the home. When Plaintiff questioned Defendant Notarfrancesco about the checks, he repeatedly represented to Plaintiff that the checks never existed. Defendant Notarfrancesco later represented to Plaintiff that his salary from PWC was reduced and that these checks had to be repaid to Pwc. II. Plaintiff never endorsed the joint incomc tax return checks. 12. Plaintiff recently discovered that as least three joint income tax return checks, totaling $9,674.00 were deposited in an account that Defendant Notarfrancesco maintained with Defendant Sovereign. This account was in Defendant Notarfrancesco's name alone. MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET . P,O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 13. Until recently, Plaintiff had no knowledge of the existence of the Sovereign Bank account in Defendant Notarfrancesco's name alone. 14. All statements to said account were sent to Defendant Notarfrancesco's place of business, rather than the parties' home. 15. Plaintiff has since discovered that Defendant Notarfrancesco used the funds in the Sovereign Bank account, in large part, to tlnance an extra-marital affair. including purchasing gifts for his paramour. COUNT I - CONVERSION (AGAINST DEFENDANT NOTARFRANCESCO) 16. The averments of paragraphs one through fifteen are incorporated herein by reference. 17. Plaintiff had a possessory right to the joint income tax return checks received by the parties. 18. Defendant Notarfrancesco intentionally exercised dominion and control over the joint income tax return checks. 19. Defendant Notarfrancesco's actions in exercising dominion and control over the joint income tax return checks resulted in an unlawful or serious deprivation and interfered with Plaintitf s possessory rights. 20. Defendant Notarfrancesco had no lawful justification for depriving Plaintiff of her right to or interfering with her possession of the joint income tax return checks. 21. Defendant Notarfrancesco acted with malicc, indifference and/or recklessness MEYERS, DESFOR, SAlTZGIVER & BOYLE 410 NORTH SECOND STREEt . P.O. BOX t062 . HARRISBURG, PA \7108 (717) 236-9428 . FAX (717) 236-2817 in converting the joint tax return checks to his individual use. WHEREFORE, Plaintiff prays that this Honorable Court enter judgment against Defendant Notarfrancesco for damages in the amount of $9674.00 plus interest and costs, as well as punitive damages and any other relief that the Court deems appropriate. COUNT II - VIOLATION OF THE PENNSYLVANIA UNIFORM COMMERCIAL CODE (AGAINST DEFENDANT SOVEREIGN) 22. The averments of paragraphs one through twenty-two are incorporated herein by reference. 23. Pursuant to 13 Pa. C.S.A. S 3116(b), an instrument payable to two or more persons if not in the alternative is payable to all of them and may be negotiated only by all of them. 24. Pursuant to 13 Pa. C.S.A. S 3420(a), an instrument is converted if a bank makes or obtains payment with respect to the instrument for a person not entitled to enforce the instrument or receive payment. 25. Defendant Notarfrancesco was not entitled to receive payment for the joint income tax return checks without the endorsement of Plaintiff. 26. Defendant Sovereign made payment to Defendant Notarfrancesco for the joint income tax return checks without the endorsement of Plaintiff. 27. Plaintiff did not consent to the deposit of the joint income tax return checks into the account maintained solely by Defendant Notartrancesco with Defendant Sovereign. MEYERS, DES FOR, $AlTZGIVER & BOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 28. Defendant Sovereign acted with malice, indifference and/or recklessness in accepting the joint tax return checks for deposit without Plaintiffs endorsement. WHEREFORE Plaintiff prays that this HOl1orable Court enter judgment against Defendant Sovereign for damages in the amount of $9674.00 plus interest and costs, punitive damages and any other relief deemed appropriate by the Court. A JURY TRIAL IS DEMANDED. Respectfully submitted, ~c;l Catherine A. Boyle, Esquire Attorney I.D. No. 76328 ~1'ltL KeI y K, m th, Esquire Attorney I.D. No. 77415 Meyers, Desfor, Saltzgiver & Boyle 410 North Second Street P.O. Box 1062 Harrisburg, PA 17108 (717) 236-9428 Dated: -; - ) (/- ,J /)05 I I 'I II MEYERS, DES FOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET. P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 VERIFICATION I, (:1-- .' Elizabeth Notarfrancesco , verify that the Complaint statements made in this are true and correct to the bes of my knowledge, information and belief. I understand that fals statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to I Dated: 7/14/2005 Defendant authorities. MEYERS, DES FOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET . P.O_ BOX 1062 . HARRISBURG. PA 17108 (717) 236-9428 . FAX (717) 236-2817 ELIZABETH NOT ARFRANCESCO, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : No.05-3555 Civil Term ANTHONY D. NOTARFRANCESCO, (An Individual) and SOVEREIGN BANCORP AND SOVEREIGN BANK, (A Corporation) : CIVIL ACTION - LAW : JURY TRIAL DEMANDED !'"'--:'l Ci ("::-"':1 (.-;-) -n ~Jl C") :::1 l ) , ,"I -, V:' .. ~_b .. C) - \..0 Defendants. PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Kindly discontinue without prejudice the above captioned Complaint filed on July 14, 2005, as to Defendant Soverign Bankcorp and Sovereign Bank only. Pursuant to Pa. R.C.P. 229, all parties have consented in writing to the discontinuance of this action against Defendant Sovereign Bankcorp and Sovereign Bank. Respecttully submitted, /' () - Uir Catherine A. BoyIe, Esquire Meyers, Desfor, Saltzgiver & Boy e Attorney J.D. No. 76328 410 North Second Street P.O. Box 1062 Harrisburg, P A 17108 (7 ] 7) 236-9428 Attorney for Plaintiff EXHIBIT j liB" MEYERS, DESFOR. SALTZGIVEA & BOYLE 410 NORTH SECOND STREET . P.O. BOX 1002 . HARRISBURG. PA 17108 (717) 236-9428 . FAX (717) 236-2817 ELIZABETH NOTARFRANCESCO, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : No.05-3555 Civil Term ANTHONY D. NOTARFRANCESCO, (An Individual) and SOVEREIGN BANCORP AND SOVEREIGN BANK, (A Corporation) : CIVIL ACTION - LAW : JURY TRIAL DEMANDED Defendants. CERTIFICATE OF SERVICE I hereby certify that on this I! {!1 day of ~ ,2005, a copy of the attached Praecipe was sent VIA Regular U.S. Mail, postage pre-paid, to: Anthony Notarfrancesco c/o Donald T. Kissinger, Esq. Howett, Kissinger, Conley & Holst 130 Walnut Street Harrisburg, P A 171 0 1 Sovereign Bancorp and Sovereign Bank c/o: Marc T. Levin, Esquire Rhoads & Sinon LLP One South Market Square P.O. Box 1146 Harrisburg. PA 17108-1146 MEYERS, DESFOR, $ALTZGIVER & BOYLE 410 NORTH SECOND STREET. P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236.9428 . FAX (717) 236-2817 (~ Donald T. Kissinger, Esquire Howen, Kissinger, Conley & Holst, P.C. 130 Walnut Street, P.O. Box 810 Harrisburg, P A 17108 Telephone: (717) 234-2616 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH NOT ARFRANCESCO, Plaintiff v. ANTHONY D. NOTARFRANCESCO, (An Individual), and SOVEREIGN BANKCORP AND SOVEREIGN BANK, (A Corporation), Defendants ) ) ) ) ) ) ) ) ) ) ) ) NO. 05-3555 CIVIL TERM CNIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Elizabeth Notarfrancesco, Plaintiff c/o Catherine A. Boyle, Esquire MEYERS, DESFOR, SALTZGIVER & BOYLE 410 North Second Street P.O. Box 1062 Harrisburg, P A 17108 You are hereby notified to file a written response to the enclosed Preliminary Objections within twenty (20) days of service hereof or a judgment may be entered against you. Date: ?!J7/cJ~ . ( ~~~ Donald T. KiSsinger"-;squir Howett, Kissinger, Conley & Holst, P.c. 130 Walnut Street. P.O. Box 810 Harrisburg, PAl 7108 Telephone: (717) 234-2616 Counsel for Defendant Anthony D. Notarfrancesco EXHIBIT I "C" Donald T. Kissinger, Esquire Howetl, Kissinger, Conley & Holst, P.C. 130 Walnut Street, P.O. Box 810 Harrisburg, P A 17108 Telephone: (717) 234-2616 IN THE COURT- OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA ELIZABETH NOT ARFRANCESCO, Plaintiff v. ANTHONY D. NOTARFRANCESCO, (An Individual), and SOVEREIGN BANKCORP AND SOVEREIGN BANK, (A Corporation), Defendants ) ) ) ) ) ) ) ) ) ) ) ) NO. 05-3555 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT NOTARFRANCESCO'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes Defendant, Anthony D. Notarfrancesco, by and through his counsel, Howett, Kissinger, Conley & Holst, P.C., who hereby files the instant Preliminary Objections to Plaintiffs Complaint: 1. Movant is Anthony D. Notamancesco ("Husband"), Defendant in the above- captioned action. 2. Respondent is Elizabeth Notarfrancesco ("Wife"), Plaintiff in the above-captioned action. 3. Pursuant to Rule 1028 ofthe Pennsylvania Rules of Civil Procedure, a party may file preliminary objections to any pleading limited to the grounds enumerated therein. /-......... 4. In accordance with Rule 1028, Husband hereby files the following preliminary objections to Wife's complaint: I. INSUFFICIENT SPECIFICITY OF PLEADING 5. Rule I 028(a)(3) pennits a party to object to a pleading that lacks factual specificity. 6. Wife's complaint is insufficiently specific, and fails to pennit Husband to prepare an appropriate response thereto, insomuch as Wife fails to allege the extent of her ownership or possessory interest in three tax refund checks purportedly cashed by Husband. Wife does not allege within her complaint that she earned income in the year for which the tax refunds were received, and ownership ofa tax refund, regardless of whether the parties file jointIy, depends upon the extent a party earned income in the year that generated the tax overpayment. 7. In fact, for all years in which the parties may have received a tax refund between 2001 and 2004, Husband, and Husband alone, earned all income for the parties; Wife was unemployed throughout the latter part of the marriage and, as a consequence, earned no income which may have fonned the basis for any tax overpayment. 8. Said complaint is further insufficient factually insomuch as Wife does not allege the factual basis for her assertion that at least three income tax refund checks, totaling $9,674.00, were deposited into Husband's account with Sovereign Ban1e For Wife to prevail upon her tort of conversion against Husband, she must establish, inter alia, that the funds belonging to Wife were, in fact, deposited into a separate bank account as opposed to an account to which she had access. 2 WHEREFORE, Defendant, Anthony D. Notarfrancesco, hereby objects to Plaintiffs complaint on the basis of insufficient specificity; he requests the Court enter an order sustaining his objection and require Plaintiff to file an amended complaint alleging specific facts demonstrating the extent of her ownership or possessory interest in the alleged tax refund checks and the basis for her assertion that said checks were deposited into Defendant's Sovereign Bank account. II. LEGAL INSUFFICIENCY (DEMURRER) 9. Wife's claim against Husband is legally insufficient inasmuch as Wife cannot sustain her claim of conversion. Wife's complaint avers that Husband is employed as a Certified Public Accountant with PriceWaterhouseCoopers, LLP but makes no allegations whatsoever that Wife was employed during the year for which a tax refund was allegedly received. As such, Wife's complaint, accepted as true for purposes of a demurrer, establishes that Husband has an ownership interest in the tax refunds; as he owns the property, he cannot be liable for conversion. 10. Wife's complaint, the facts for which are assumed true for purposes of demurrer, do not establish that Wife has any ownership interest in the tax refunds. While Wife has made the general averment that she had a possessory right to the refund, general statements or averments are insufficient for purposes of defeating a demurrer. Wife is required to plead specifically the nature and extent of her interest, and in the absence of such specificity, her claim is legally insufficient. 11. The elements of conversion require proof that Husband interfered with Wife's right to property, which interference was without lawful justification. As Wife's complaint 3 establishes that Husband has a possessory right to the property but does not establish that Wife had a possessory right to the property, Wife's claim for conversion is legally insufficient. WHEREFORE, Defendant Anthony D. Notarfrancesco, hereby objects to Plaintiffs complaint on the basis oflegal insufficiency; he requests the Court enter an order sustaining his objection and dismiss Count I of Plaintiffs complaint as against Defendant Notarfrancesco. III. PENDENCY OF PRIOR ACTION 12. Rule 1028(a)(6) permits a party to object to an action where an identical action is pending, 13. Wife filed a complaint for divorce against Husband on or about June 8, 2005, which complaint raises a claim of, inter alia, equitable distribution of marital property. 14. On July 14, 2005, Wife initiated the instant civil action and named Husband as a defendant thereto; said complaint against Husband alleges conversion of tax refund checks generated during the course of the parties' marriage. 15. To the extent Wife has any ownership or possessory interest in tax refund checks received during marriage, her interest is limited to an equitable interest created by Pennsylvania's Domestic Relations law, 16. Section 3501(a) of the Divorce Code defines "marital property" subject to the jurisdiction of a divorce court. 17. Section 3502(a) of the Divorce Code provides that a court shall, upon the request of either party, equitably divide all marital property. 18. Section 3104(a) of the Divorce Code provides that a divorce court shall have jurisdiction to dispose of property between spouses when such a request is raised. 4 19. As the property that comprises Wife's claim for conversion is marital property subject to equitable distribution in the pending divorce action, at action number 05-2937 Civil Term, with the Court of Common Pleas of Cumberland County, the divorce court has exclusive jurisdiction to determine the rights of the parties as to the property at issue and divide it accordingly. WHEREFORE, Defendant, Anthony D. Notarfrancesco, hereby objects to Plaintiffs complaint on the basis of a pending prior action; he requests the Court enter an order sustaining his objection and dismiss PIaintiffs complaint as to Defendant Notarfrancesco, and allow the parties' property rights as to the tax refund check be decided by the divorce court. Respectfully submitted, Date: Y;:7fts-' t- ' Donald T. Kissinger, Esquire Howett, Kissinger, Conley & Ho st, P.c. 130 Walnut Street. P.O. Box 810 Harrisburg, P A 17108 Telephone: (717) 234-2616 Counsel for Defendant Anthony D. Notarfrancesco 5 VERIFICATION I, Donald T. Kissinger, Esquire, hereby swear and affirm that the facts contained in the foregoing Defendant Notarfrancesco's Preliminary Objections to Plaintiffs Complaint are true and correct to the best of my knowledge, information, and belief based upon information provided by Defendant and from my own first-hand knowledge and that said facts are made subject to the penalties of 18 Pa. C.S. 94904 relating to unsworn falsification to authorities. Defendant is outside the jurisdiction of this court such that his verification cannot be timely obtained. Date: :?k ~ s-' ~ l IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL V ANlA ELIZABETH NOT ARFRANCESCO, Plaintiff v. ANTHONY D. NOT ARFRANCESCO, (An Individual), and SOVEREIGN BANKCORP AND SOVEREIGN BANK, (A Corporation), Defendants ) ) ) ) ) ) ) ) ) ) ) ) NO. 05-3555 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIfiCATE OF SERVICE I, Donald T. Kissinger, Esquire, counsel for Defendant Anthony D. Notarfrancesco in the above-captioned action, hereby certify that a true and correct copy of Defendant Notarfrancesco's Preliminary Objections to Plaintiffs Complaint was served upon Catherine A. Boyle, Esquire, counsel for Plaintiff Elizabeth Notarfrancesco, by depositing same in the United States mail, first class, on August 17,2005, addressed as follows: Catherine A. Boyle, Esquire MEYERS, DESFOR, SALTZGIVER & BOYLE 410 North Second Street P.O. Box 1062 Harrisburg, P A 17108 Date: ;y j1!tJ<; I . Donald T. Kissinger, Esquir Howett, Kissinger, Conley & Holst, P.C. 130 Walnut Street. P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Defendant Anthony D. Notarfrancesco IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH NOTARFRANCESCO, ) Plaintiff ) ) v. ) ) ANTHONY D. NOTARFRANCESCO (an adult ) individual) and SOVEREIGN BANCORP and ) SOVEREIGN BANK (a corporation), ) Defendants ) NO. 05-3555 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR LISTING CASE FOR ORAL ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for Argument Court. 1. State matter to be argued: Defendant Anthony D. Notarfrancesco's preliminary objections to complaint, which were filed on August 18, 2005. 2. Identify counsel who will argue cases: (a) for Plaintiff: Catherine A. Boyle, Esquire, Meyers, Desfor, SaItzgiver & BoyIe, 410 North Second Street, Harrisburg, P A 17101, Telephone: (717) 236-9428. (b) for Defendant: Donald T. Kissinger, Esquire, Howett, Kissinger, Conley & Holst, P.c., 130 Walnut Street, P.O. Box 810, Harrisburg, PA 17108, Telephone: (717) 234-2616. (c) for Sovereign Bancorp and Sovereign Banle Marc T. Levin, Esquire, Rhoads & Sinon, LLP, One South Market Square, P.O. Box 1146, Harrisburg, PA 17108-1146, Telephone: (717) 231-6600. EXHIBIT J liD" 3. I will notifY all parties in writing within two days that this case has been listed for argument. Notification has been accomplished contemporaneously with submission of this praecipe. 4. Argument Court Date: Kindly schedule the matter for argument on November 23, 2005. Respectfully submitted, Date: /61", ;0 5' Y I Donal T. Kissinger, Es HOWETT, KlSSINGE 130 Walnut Street P.O. Box 810 Harrisburg, P A 17108 Telephone: (717) 234-2616 Counsel for Defendant, Anthony D. Notarfrancesco VERIFICATION I, Elizabeth Notarfrancesco , verify that the statements made in this Petition for Joinder are true and correct to the bes I' of my knowledge, information and belief. I understand that fals statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Dated: / /-.J -,J bOS Defendant I[ II I 'I I :1 )! II !i II 'I I' " i I , I: , MEYERS, DESFQR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET . P.O_ BOX 1062 . HARRISBURG. PA 17108 {7il} 236.9428 . FAX (717) 236-2817 ELIZABETH NOT ARFRANCESCO, Plaintiff, : IN THE COURT OF COMMON PLEAS . CUMBERLAND COUNTY, PENNSYLVANIA v. : No.05-3555 Civil Term ANTHONY D. NOTARFRANCESCO, (An Individual) and SOVEREIGN BAN CORP AND SOVEREIGN BANK, (A Corporation) : CIVIL ACTION - LAW : JURY TRIAL DEMANDED Defendants. CERTIFICATE OF SERVICE I hereby certify that on this ;;2J- day of November, 2005, a true and correct copy of the foregoing Petition for Joinder Pursuant to Pa.R.C.P., was hand delivered, to: Anthony D. NOlarlrancesco c/o Donald T. Kissinger, Esquire HOWETT, KISSINGER, CONLEY & HOLST, P.C. 130 Walnut Street P.O. Box 810 Harrisburg, PAL 71 08 Commerce Bank and Pennsylvania Commerce Bancorp, Inc. 100 Senate A venue Camp Hill, PA 17011 Catherine A. Boyle, Esq Attorney for Plaintiff MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET. P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236.2817 (: ,-.' ,.." " ....-.J .- -~~ 00:"" ,::5 ...;..;.: I W :>,~: ':? (..J w o -" --\ ::C-n rn ::;;; ::::; (") .~-1 ~) n-, ) .--\ ~fj .< ~ ELIZABETH NOTARFRANCESCO, : IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW ANTHONYD. NOTARFRANCESCO,: and SOVEREIGN BANCORP and SOVEREIGN BANK NO. 05-3555 CIVIL TERM ORDER OF COURT AND NOW, this 9th day of November, 2005, upon consideration of Defendant Notarfrancesco's Motion To Quash Notice of Deposition, the motion is denied. ~erine A. Boyle, Esq. 410 North Second Street P.O. Box 1062 Harrisburg, P A 17108 Attorney for Plaintiff vDOnald T. Kissinger, Esq. 130 Walnut Street P.O. Box 810 Harrisburg, P A 17108 Attorney for Defendant Anthony D. Notarftancesco :rc BY THE COURT, J. D/r? \\-\ ;1 h":' _".".'.'-',r ".:\ 10 9S :0' (l \ I,m\ sG\lL }\B'J\_C.\'-~' 3Hl dO :::::Y,~.:';(} CTJHj . .' ELIZABETH NOT ARFRANCESCO, : IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION - LAW ANTHONY D. NOTARFRANCESCO, : and COMMERCE BANK AND PENNSYL VANIA COMMERCE BANCORP, INC., Defendants NO. 05-3555 CIVIL TERM ORDER OF COURT AND NOW, this 9th day of November, 2005, upon consideration of Plaintiff's Motion for Leave To Amend Complaint, a Rule is hereby issued upon all other parties to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. ;?rtherine A. Boyle, Esq. 410 North Second Street P.O. Box 1062 Harrisburg, P A 17108 Attorney for Plaintiff !/onald T. Kissinger, Esq. /!.30 Walnut Street P.O. Box 810 Harrisburg, PA 17108 Attorney for Defendant Anthony D. Notarfrancesco BY THE COURT, J. A '''':n8 9S :[!I ii~ O! Am! SOliZ ;,lV.~,C>-;C:: ~~~:j':::d 3H1 jO j:JU !O-CETiH Commerce Bank and Pennsylvania Commerce Bancorp, Inc. 100 Senate Avenue Camp Hill, PA 17011 :rc Donald T. Kissinger, Esquire Howett, Kissinger, Conley & Holst, P.C. 130 Walnut Street, P.O. Box 810 Harrisburg, P A 17108 Telephone: (717) 234-2616 Counsel for Defendant, Anthony D. Notarfrancesco IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ) ) ) ) ) ANTHONY D. NOTARFRANCESCO (an ) individual) and SOVEREIGN BANCORP ) and SOVEREIGN BANK (a corporation), ) Defendants ) ELIZABETH NOT ARFRANCESCO, Plaintiff NO. 05-3555 CIVIL TERM v. CIVIL ACTION - LAW JURY TRIAL DEMANDED ORDER OF COURT AND NOW, this _ day of ,2005, upon consideration of Defendant Notarfrancesco's Motion to Quash, Plaintiffs Answer and New Matter thereon and Defendant's Response to New Matter, it is hereby ORDERED and DECREED as follows: 1. Any and all discovery in the instant action shall be consolidated with discovery in the parties' divorce action, action number 05-2937 Civil Term. 2. To the extent that Plaintiff seeks further deposition of Defendant Notarfrancesco on any and all issues germane to either action, Plaintiff shall be permitted one full day to depose Defendant. "Full day" to mean from 9:00 a.m. to 5:00 p.m. with appropriate lunch break and periodic rest breaks. 3. Should Plaintiffbe unable to complete Defendant's deposition on one full day, additional deposition time may be permitted only by express agreement of the parties or order of court upon cause shown. If appropriate, in allowing additional deposition time the Court will consider any and all reasonable restrictions or conditions, including reimbursement or payment of expenses incurred by Defendant in traveling to Pennsylvania for a subsequent deposition. 4. Plaintiff shall pay Defendant's counsel fees, costs and expenses incurred as a result of filing the instant Answer to New Matter, the amount not to exceed $2,500.00. BY THE COURT: J. Donald T. Kissinger, Esquire Howett, Kissinger, Conley & Holst, P.c. 130 Walnut Street, P.O. Box 810 Harrisburg, P A 17108 Telephone: (717) 234-2616 Counsel for Defendant, Anthony D. Notarfrancesco IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ) ) ) ) ) ANTHONY D. NOT ARFRANCESCO (an ) individual) and SOVEREIGN BANCORP ) and SOVEREIGN BANK (a corporation), ) Defendants ) ELIZABETH NOTARFRANCESCO, Plaintiff NO. 05-3555 CIVIL TERM v. CIVIL ACTION - LAW JURY TRIAL DEMANDED RESPONSE TO PLAINTIFF'S NEW MATTER CONTAINED WITHIN HER ANSWER TO DEFENDANT NOTARFRANCESCO'S MOTION TO OUASH AND NOW, comes Defendant, Anthony D. Notarfrancesco, by and through his counsel, Howett, Kissinger, Conley & Holst, P.c., who hereby files the following Response to the New Matter contained within Plaintiffs Answer to Defendant Notarfrancesco's Motion to Quash and in support thereof states as follows: I - 30. No response is provided inasmuch as the Pennsylvania Rules of Civil Procedure do not permit a response to Plaintiffs Answer to Defendant's Motion to Quash. 31. Neither admitted nor denied as said paragraph constitutes an incorporation paragraph to which no response is required. 32. Admitted. By way of further response, while the notice to take deposition issued by Wife on September 16, 2005 was the first request for deposition in the instant action, Wife's counsel has already deposed Husband on two separate occasions in their divorce case. Despite already deposing Husband on two separate occasions, Wife's counsel is demanding a third full day to depose Husband, which is unreasonably burdensome to Husband given the fact that he resides in Baltimore, Maryland and works long hours with Pricewaterhouse Coopers ("PWC") as a tax partner and travels for work. As an example, in the last two weeks Husband has traveled to Texas and other parts of Maryland and Pennsylvania for work. It is extremely di fficult for Husband to set aside full days to travel to Pennsylvania to be subjected to multiple depositions in multiple actions, a fact Husband's counsel relayed to Wife's counsel. Not only has Wife's counsel sought multiple depositions of Husband, she has also served upon Husband voluminous notices to produce documents requesting a plethora of information. Husband has endeavored to compile the copious documents requested, to the extent it exists, and he has access thereto, but such an endeavor likewise takes away significant valuable time that Husband would otherwise have available for work. 33. Admitted with clarification. At the time of Husband's second deposition in the divorce case on September 30, 2005, Husband did indicate his availability for both November 1;( and October 31;t for one additional day of deposition. However, rather than seeking one additional day of deposition for Husband, Wife's counsel noticed him for a deposition in the instant action for November 1;( and indicated her intention to seek another full day of deposition of Husband in the divorce action. Husband's counsel voiced his objection to such a tactic, particularly in light of counsel's belief that the issues raised by Wife in her civil action, insomuch as the issues address marital property, are properly addressed by the divorce court. In fact, Husband's counsel has filed preliminary objections to Wife's civil complaint on 2 the basis of the pendency ofa prior action, i.e., the divorce action. This Court will hear Husband's preliminary objections on November 23, 2005. 34. Admitted. Husband's counsel advised Wife's counsel on October 18, 2005 that Husband would not continue to be submitted to multiple depositions as has thus far been Wife's plan. In the parties' divorce case, Husband has already been deposed on two separate, full days, and Wife's counsel has requested an additional full day in which to depose Husband. In addition, Wife's counsel has sent Husband voluminous notices to produce documents at each deposition, which has caused Husband to expend considerable time in compiling the documents and taking off work to attend each deposition. Wife's counsel has instituted the instant suspect civil action against Husband in July 2005 seeking damages (a total not exceeding $9,700.00), which value is de minimus in light of the overall marital estate. To the extent there is any merit whatsoever in Wife's civil action, it is properly addressed by the divorce court who has jurisdiction over all marital property, as Wife filed for divorce and requested equitable distribution in June 2005. There is no disagreement that the sums that Wife alleges were converted constitute marital property subject to equitable distribution. For purposes of judicial economy, the issues within Wife's civil action should be consolidated into the divorce action, and the instant action should be dismissed. 35. Admitted. By way of furtherresponse, Husband's Motion to Quash is meritorious given his allegations that Wife, in proceeding with her civil action and seeking an additional full day of deposition of Husband in said action (in addition to another deposition in the divorce action) constitutes bad faith, creates unreasonable annoyance, oppression, burden and expense upon Husband and is designed solely for harassment and annoyance, particularly when 3 Husband's counsel offered to allow Wife's counsel to have a full day to depose Husband on all issues germane to the divorce action and her pending civil action. Given the factual overlap between the parties' divorce action and civil action, it is in the interest of the Court and both parties to consolidate discovery rather than permit it to proceed on two separate tracts, provided the Court does not find that all matters should be consolidated within the parties' divorce action and, therefore, dismisses this action. 36. Admitted. By way of further response, given Wife's refusal to consolidate all depositions on one day other than November 1 ", Husband was constrained to file a Motion to Quash on or about October 28, 2005, four days before the scheduled deposition. 37. Admitted with clarification. While Wife is technically correct that a "Motion for Protection Order" pursuant to Rule 4012 of the Pennsylvania Rules of Civil Procedure is the mechanism by which a party challenges proposed discovery, it is readily apparent that Husband's "Motion to Quash" constituted a request for protective order notwithstanding the different nomenclature. In his letter of October 18, 2005, Husband's counsel specifically states that Wife's refusal to consolidate her discovery would necessitate a request for protective order. A copy of Husband's counsel's letter of October 18, 2005 is attached hereto as Exhibit "A" and is incorporated herein by reference thereto. Moreover, Husband's "Motion to Quash" sets forth factual averments alleging bad faith, unreasonable annoyance, embarrassment, oppression, burden or expense as well as harassment, all of which form the foundation for seeking a protective order under Rule 4012 and which constitute the "Limitation of Scope" of discovery pursuant to Rule 4011. Rule 234.4, the basis for Husband's Motion to Quash, likewise states that relief can be afforded to avoid unreasonable annoyance, embarrassment, oppression, 4 burden or expense. The bases for protection under Rule 234.4 are identical to that under Rule 4012. Consequently, any error in nomenclature is de minim us and non-prejudicial. 38. Admitted with clarification. Defendant admits that Rule 4013 states that a motion for protective order does not stay a deposition unless a court specifically orders such. Given the need for Husband to file his requested relief in such close temporal proximity to the scheduled deposition, Husband was unable to procure an order staying the proceedings. Nevertheless, requiring Husband to attend the deposition notwithstanding his motion would have defeated each and every basis of Husband's motion, as it would have subjected Husband to unreasonable annoyance, oppression, burden and expense; it would have ratified Wife's harassment and annoyance; and it would have blessed Wife's motive to maintain two separate tracts on interrelated issues, all of which should be addressed by the divorce court. Thus, proceeding with the deposition would have not only effected Husband personally, but it would have wasted judicial resources, time and money, something this Court is loath to do. 39. Denied. Notwithstanding the prescriptions of Rule 4013, proceeding with the deposition over Husband's objections (properly set forth by motion) would have resulted in irreparable harm and prejudice to Husband. By refusing to attend the deposition, Wife has incurred no prejudice or harm inasmuch as she was made aware as early as October 28, 2005, that Husband would not attend the November 1" deposition in light of his motion to quash. Wife incurred no additional costs as any attorney preparation time would have been needed for the one day of deposition Husband is willing to undergo to address all issues. 5 40. Admitted in part; denied in part. Husband admits that Wife may seek relief under Rule 234.5(b), and Wife's counsel accurately sets forth the requirements of said Rule. It is denied that Wife can meet the requirements of Rule 234.5(b), thereby entitling her to relief thereunder. Husband's filing of his Motion to Quash, and his refusal to attend the deposition, was not done in bad faith. Rather, Husband's counsel made it clear to Wife's counsel that he objected to his client being subjected to numerous depositions requiring Husband to take off of work and travel nearly two hours to the Central Pennsylvania region. Husband has already been subjected to two separate depositions, each of which have lasted an entire day, and Wife's counsel demanded not only another full day in the divorce action, but she attempted to get a full day for the instant action. As the claims set forth in Wife's civil action are inextricably intertwined with the pending divorce action, the civil action should be dismissed and any and all claims thereunder should be consolidated with the divorce action. In the alternative, if the Court is not inclined to consolidate the actions and dismiss the civil action, then it is empowered to consolidate discovery in both actions to effectuate judicial economy and minimize cost, time and energy. 41. Denied. Husband filed his Motion to Quash, not in bad faith, but as his only option to stop Wife from continuing to engage in a course of action designed to harass Husband, waste judicial resources and exhaust the parties' marital estate. Husband filed his Motion to Quash as a last resort after Wife refused to consolidate matters and streamline discovery. 6 42. Denied. It is denied that Husband "indicated in writing his deposit of the joint income checks." In fact, all that Husband did, in annotating the Sovereign Bank statements provided to Wife's counsel was indicate what he believed the source of various deposits to be. Husband in no way researched the issue prior to making the annotations, and his writing simply evidenced an "educated guess" as to the source of the deposits. The fact that Wife relied solely on such representations in filing the instant action, rather than undertaking an independent review of the facts, as required by the Rules of Civil Procedure, evidences Wife's bad faith in filing the civil action. 43. Neither admitted nor denied as Husband is without Sufficient information to respond to the averment insomuch as he has no information as to what Wife may have "discovered." To the extent a response is required, Husband denies that Wife has divulged any of this "additional evidence" allegedly discovered that purportedly supports her allegations. 44. Denied. Husband denies that he has filed his motion to "delay his inevitable liability." Husband filed his Motion to Quash given Wife's refusal to proceed in a manner that minimizes the parties' costs and maximizes the Court's judicial resources. Instead, Wife is insistent on proceeding with two separate tracks, despite the interrelationship between the two actions, thereby forcing the Court to address separate divorce issues and separate civil action issues. Given the two separate actions, it is possible that two separate judges will address matters despite the overlapping nature of the issues, which increases the possibility of conflicting rulings and wasted resources in harmonizing different rulings. 7 WHEREFORE, Defendant, Anthony D. Notarfrancesco, respectfully requests this Honorable Court enter an order denying the reliefrequested within Wife's New Matter to her Answer to Motion to Quash and, instead, enter an order stating the following: 1. That any and all discovery in the instant action shall be consolidated with discovery in the parties' divorce action. 2. To the extent that Plaintiff seeks further deposition of Defendant Notarfrancesco on any and all issues germane to either action, Plaintiff shall be permitted one full day to depose Defendant. "Full day" to mean from 9:00 a.m. to 5:00 p.m. with appropriate lunch break and periodic rest breaks. 3. Should Plaintiff be unable to complete Defendant's deposition on one full day, additional deposition time may be permitted only by express agreement of the parties or order of court upon cause shown. If appropriate, in admitting additional deposition time the Court will consider any and all reasonable restrictions or conditions, including reimbursement or payment of expenses incurred by Defendant in traveling to Pennsylvania for subsequent deposition. 4. Plaintiff shall pay Defendant's counsel fees, costs and expenses incurred as a result of filing the instant Answer to New Matter. Date: If I~~ ~llysubmitted, Donald T. Kissinger, Esq lr Howett, Kissinger, Conley Holst, P.c. 130 Walnut Street, P.O. Box 810 Harrisburg, P A 17108 Telephone: (717) 234-2616 Counsel for Defendant, Anthony D. Notarfrancesco 8 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH NOTARFRANCESCO, Plaintiff ) ) ) ) ) ANTHONY D. NOTARFRANCESCO (an ) individual) and SOVEREIGN BANCORP ) and SOVEREIGN BANK (a corporation), ) Defendants ) NO. 05-3555 CIVIL TERM v. CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Donald T. Kissinger, Esquire, counsel for Anthony D. Notarfrancesco, Defendant in the above-captioned action, hereby certify that a true and correct copy of the foregoing Answer to the New Matter contained within Plaintiffs Answer to Defendant Notarfrancesco's Motion to Quash was served upon Catherine A. Boyle, Esquire, counsel for Plaintiff, Elizabeth Notarfrancesco, by depositing same in the United States mail, first class, on November 14, 2005, addressed as follows: Catherine A. Boyle, Esquire MEYERS, DESFOR SALTZGIVER & BOYLE 410 North Second Street P.O. Box 1062 Harrisburg, PA 1710S Date: /~;1yf5 ~"-'" ~ c:::::--,~- ~//- Donald T. Kissinger, Esqui Howett, Kissinger, Conley & Holst, P.C. 130 Walnut Street P.O. Box SIO Harrisburg, PAl 71 OS Telephone: 717-234-2616 Counsel for Defendant, Anthony D. Notarfrancesco ,~, :') ""0 _1 'if;? 11." c C:l. en -1.' ,., . ~ J. \' ) '~:1. o ELIZABETH NOTARFRANCESCO, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ANTHONY D. NOTARFRANCESCO, an: Adult individual) and SOVEREIGN BANCORP and SOVEREIGN BANK (a corporation), DEFENDANT 05-3555 CIVIL TERM IN RE: PRELIMINARY OBJECTION OF DEFENDANT, ANTHONY D. NOTARFRANCESCO, TO PLAINTIFF'S COMPLAINT BEFORE BAYLEY, J. AND GUIDO, J. ORDER OF COURT AND NOW, this ~ day of November, 2005, IT IS ORDERED that the preliminary objection of defendant, Anthony D. Notarfrancesco, to the complaint of Elizabeth Notarfrancesco, ARE DENIED. ~atherine A. Boyle, Esquire For Plaintiff ~rles Rector, Esquire ~onald T. Kissinger, Esquire For Anthony D. Notarfrancesco // :sal ~ -O>~~ ~~~ ~,~ \\,rp 1'-.:> ~~&~ q -" 1',) 0) c Donald T. Kissinger, Esquire Howett, Kissinger, Conley & Holst, P.c. 130 Walnut Street P.O. Box SIO Harrisburg, P A 171 OS Telephone: (717) 234-2616 Counsel for Defendant, Anthony D. Notarfrancesco Charles A. Rector, Esquire 1104 Fernwood Avenue Suite 203 Camp Hill, P A 17011 Telephone: (717) 761-2161 Counsel for Defendant Anthony D. Notarfrancesco IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH NOT ARFRANCESCO, ) ) Plaintiff ) ) v. ) ) ANTHONY D. NOTARFRANCESCO, ) (an individual) and ) SOVEREIGN BANCORP AND ) SOVEREIGN BANK (a corporation), ) Defendants ) NO. 05-3555 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT NOTARFRANCESCO'S RESPONSE TO PLAINTIFF'S PETITION FOR JOINDER PURSUANT TO PA. RCiv.P. 2232(c) AND NOW, comes Defendant, Anthony D. Notarfrancesco, by and through his counsel, Charles A. Rector, Esquire and Howett, Kissinger, Conley & Holst, P .C., who hereby files the instant Response to Plaintiffs Petition for Joinder Pursuant to Rule 2232(c) of the Pennsylvania Rules of Civil Procedure and in support thereof states as follows: I. Admitted. By way of further response, Petitioner (hereafter "Wife") is presently married to Defendant Notarfrancesco (hereafter "Husband"), and the parties are presently engaged in a divorce action pending before the Court of Common Pleas of Cumberland County, at action number 05-2937 Civil Term. The property at issue in Wife's allegation of conversion against Husband in this action is unquestionably marital property subject to Wife's request for equitable distribution in the divorce case. In fact, to the extent Wife has any interest in the disputed property, her interest only arose at the time she initiated her divorce action and requested equitable distribution of the marital property. 2. Admitted. By way of further response, Husband resides in Baltimore as a result of his employment with PriceWaterhouseCoopers (hereafter "PWC") as a partner in its tax department. 3. Admitted in part; denied in part. Husband admits that, on July 14, 2005, Wife filed a complaint against Husband and Defendant Sovereign Bancorp and Sovereign Bank (hereafter "Sovereign"), alleging the tort of conversion against Husband and alleging a violation of the Uniform Commercial Code against Sovereign. Husband denies that Wife's complaint as against Husband is meritorious in any fashion. Husband further denies that he is liable to Wife for the tort of conversion. Husband will not speak on behalf of Sovereign, but Wife's allegation against Sovereign has been conclusively established to be without merit, in light of Wife formally discontinuing the action against Sovereign Bank. Documentation provided by Sovereign Bank proved Wife's allegations to be meritless as to Sovereign Bank and Husband. 4. Admitted in part; denied in part. Husband admits Wife's complaint alleges Husband deposited income tax refund checks payable jointly to Husband and Wife without obtaining Wife's endorsement and that said deposits were placed into a bank account titled in Husband's sole name. As a writing, Wife's complaint speaks for itself. Husband denies there is any merit to Wife's complaint as against Husband. Husband has yet to file a formal answer to Wife's complaint in light of the preliminary objections he filed against the complaint, which preliminary objections are pending and were heard by the Court on November 23, 2005. Husband's primary contention, as conveyed through his preliminary objections, is that Wife's complaint is legally insufficient as to her allegation of conversion; in the alternative, Husband believes the doctrine of lis pendens should apply to consolidate the claim Wife has raised through her civil complaint with the pending divorce action because: (I) to the extent any tax refund 2 checks were received by the parties in the Fall of 2003 and deposited by Husband into an individual account, the tax refund checks, and the account into which they were deposited, are marital property; and (2) issues regarding disposition of marital property are properly addressed by the divorce court, which sits in equity. Wife has requested equitable distribution of the marital property. 5. Denied. After reasonable investigation. Husband cannot form a belief as to the truth of the averment as Husband is without knowledge as to what Wife "relied upon" in filing the instant action. To the extent a response is required, Husband denies he made any representations on which Wife should have relied. In forwarding documents to Wife in the parties' divorce action, Husband made several annotations to bank statements in an attempt to clarify the source of various deposits and withdrawals indicated on the statements. Husband merely provided his best guess as to the source of deposits, and he made no independent investigation to confirm his annotations. To the extent Wife simply relied upon Husband's annotations in filing the instant action, Husband believes Wife, and her counsel, should be subject to sanctions pursuant to Rule 1023.1 et. seq. of the Pennsylvania Rules of Civil Procedure for failing to perform any due diligence factual investigation prior to initiating the complaint. Husband tried to explain the deposits and withdrawals as a courtesy to Wife; Wife's counsel did not formally ask him to annotate the statements. 3 6. Denied. After reasonable investigation Husband cannot form a belief as to the truth of the averment as Husband is without knowledge as to what Wife may have learned through any independent discovery. It is clear, however, that Wife's counsel refuses to disclose her "revelations." To the extent a response is required, Husband admits Sovereign Bank produced documentation conclusively establishing that the factual basis for Wife's complaint, both as to Sovereign and to Husband, was wrong and could not be supported. As Wife has not shared any "discovery" to Husband as to Pennsylvania Commerce Bancorp (hereafter "Commerce Bank"), Husband is without an ability to respond more specifically to Wife's averment. Husband denies, however, that Wife was only able to now discover any information related to Commerce Bank. Husband opened the Commerce Bank account during the parties' marriage and with full knowledge of Wife given his then employment in Philadelphia. Wife was therefore aware of the Commerce Bank account at the time it was opened in August of2003, and she had either actual or constructive knowledge of whatever deposits were submitted to said account during their marriage. 7. Admitted in part; denied in part. Husband admits Wife filed a praecipe to discontinue the action as to Sovereign, but Husband maintains Wife did so because the documentation provided by Sovereign conclusively established that Wife's averments against both Defendants could not be supported. Husband denies, and he takes great umbrage with, Wife's statement that she discontinued her action as to Sovereign Bank "because Defendant Notarfrancesco's representations regarding the account into which the joint income tax checks were deposited were incorrect." As stated above, Husband provided bank statements to Wife and, as a courtesy, attempted to provide annotations thereto, but he did not undertake any 4 ELIZABETH NOT ARFRANCESCO Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 05-3555 CIVIL TERM ANTHONY D. NOTARFRANCESCO (an individual) and COMMERCE BANl{ AND PENNSYLVANIA COMMERCE BANCORP, INC. (a corporation) Defendants CIVIL ACTION - LAW PRAECIPE To The Prothonotary: Please withdraw the Motion for Protective Order filed in the above-captioned matter by Defendant, Anthony D. Notarfrancesco, on January 24,2006. Date: ./ J .tit> ( -------- ..:\-' r:..;..' c" , c'- - independent investigation to confirm his beliefs. It is reprehensible for Wife to simply rely on such annotations in initialing filing this action. Wife apparently performed no independent factual investigation prior to filing suit, which behavior should subject Wife, and her counsel, to sanctions pursuant to Rule 1023.1 et. seq. of the Pennsylvania Rules of Civil Procedure. 8. Denied. After reasonable investigation Husband cannot form a belief as to the truth of the averment as Husband is without knowledge as to Wife's belief. To the extent a response is required, Husband denies any wrongdoing that would subject himself, or Commerce Bank for that matter, to any liability. Moreover, while Wife may believe Commerce Bank to be a "necessary party," Husband maintains that it is improper for this Court to join Commerce Bank at this time insomuch as any cause of action against Commerce is likely barred as a result of statute of limitations. Presumably, Wife maintains that joint income tax refund checks were deposited into Commerce Bank at or around October 2003, similar to other allegations she made against Husband and Sovereign Bank in her initial action when she believed such refund checks were deposited into Sovereign Bank. To the extent any joint income tax refund checks may have been deposited into Commerce Bank in October of 2003, Wife has only sought to join Commerce Bank through her petition for joinder, filed November 4, 2005, and she has yet to formally file suit against Commerce Bank. Any cause of action Wife may have as to Commerce Bank is governed by a two year statute oflimitations, which statute would have expired in October of 2005 or November 2005at the latest. As Wife was aware of the Commerce Bank account as of October 2003, and she had either actual or constructive knowledge of any monies deposited therein, she cannot avail herself of the discovery rule to toll the statute of limitations. A petition for joinder does not toll a statute of limitations. 5 9. Admitted in part; denied in part. Husband admits 13 Pa.C.S.A. 93420 provides that a bank may be liable to a party for conversion in accepting for deposit checks that have not been properly endorsed. Husband denies, however, that Commerce Bank accepted for deposit any checks not properly endorsed through the implied or expressed consent of Husband and Wife, who were in an intact marriage at that time. Furthermore, the cause of action set forth under Section 3420 is governed by a two year statute of limitations, and the two year period would have expired in October of2005 or November 2005 at the latest; Wife has not sought to join Commerce Bank as a defendant until November 4,2005, and she has not formally initiated an action against Commerce Bank. While the Court will liberally grant joinder, it cannot do so if a party attempts to join a defendant who is now immune from suit as a result of expiration of statute of limitations. Statutes of limitation are to be strictly construed. 10. Admitted in part; denied in part. Husband admits Rule 2232(c) of the Pennsylvania Rules of Civil Procedure empowers this Court to join additional defendants and to stay all proceedings if necessary. Husband denies, first, that a stay of the proceedings is appropriate in this case. A judicial stay is not mandatory, but, rather it is perrnissiove. Secondly, Husband denies it is appropriate for the Court to join Commerce Bank at this time due to the fact that the applicable statute of limitations has now expired as to Commerce. Presently pending before the Court are Husband's preliminary objections to the complaint filed by Wife, and said preliminary objections were heard by this Court on November 23,2005. Said proceeding should not be stayed by this Court insomuch as Commerce Bank cannot be joined at this time and Wife's original complaint as to Husband is legally inSufficient and subject to demurrer. 6 11. Admitted. By way of further response, as stated previously, this Court should not stay the proceedings in order to entertain Wife's present petition for joinder. First, her petition for joinder is untimely insomuch as Commerce Bank cannot be joined at this juncture in light of the expiration of the appropriate statute oflimitations as to Commerce Bank. Moreover, Husband has raised a valid objection to the legal sufficiency of Wife's complaint, which objection was heard on November 23, 2005 with no decision yet pronounced. 12. Denied. As stated previously, it is inappropriate for this Court to stay this proceeding at this time. Foremost, Wife's request for joinder as to Commerce Bank is untimely as the appropriate statute oflimitations has expired as to Commerce Bank, assuming Wife's belief that it violated 13 Pa.C.S.A. S3420 is correct. Secondly, Wife's pending complaint is legally insufficient and is subject to a pending demurrer by Husband. This Court must hear and rule on Husband's preliminary objections. A stay will only waste judicial resources in the long run and subject the parties to additional unreasonable expenses. As the heart of Wife's complaint addresses marital property subject to the jurisdiction of the divorce court, if the Court does not sustain Husband's demurrer, it must dismiss this action and consolidate Wife's claims into the divorce action. 13. Admitted in part; denied in part. Husband admits Wife has filed a motion for leave to amend her complaint to join Commerce Bank as a defendant. Husband denies it is appropriate at this time to join Commerce Bank; hence, his written objection to Wife's petition for joinder. 7 14. Denied. While Husband admits that local Rule 20S.2(d) requires counsel to seek the agreement of counsel before filing such motions, Husband's counsel adamantly denies that Wife's counsel ever sought counsel's concurrence before filing this petition. WHEREFORE, Defendant, Anthony D. Notarfrancesco, respectfully requests this Honorable Court issue an order denying Wife's request to join Pennsylvania Commerce Bankcorp, Inc. and Commerce Bank as a defendant in the above-captioned litigation; furthermore, the Court should deny Plaintiffs request to have the instant matter stayed pursuant to Rule 2232(c) of the Pennsylvania Rules of Civil Procedure. Date: I. (.:; ,,(0,;---- -_.__.---------~ ,- arles A. 1104 Fern Suite 203 Camp Hill, PA 17011 Telephone: (717) 761-2161 ~//~ Donald T. Kissinger, Esquire Howett, Kissinger, Conley & Holst, P.c. 130 Walnut Street P.O. Box S10 Harrisburg, P A 171 OS Telephone: (717) 234-2616 Counsel for Defendant, Anthony D. Notarfrancesco S VERIFICATION I, Anthony D. Notafrancesco, hereby swear and affirm that the facts contained in the foregoing Defendant Notarfrancesco's Response to Plaintiff's Petition are for Joinder Pursuant to Pa.R.Civ.P. 2232(c) true and correct to the best of my knowledge, information and belief and are made subject to the penalties of 18 Pa.C.S. 94904 relating to unsworn falsification to authorities. Date: 11/28/05 (21 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH NOT ARFRANCESCO, ) ) Plainti ff ) ) v. ) ) ANTHONY D. NOTARFRANCESCO, ) (an individual) and ) SOVEREIGN BAN CORP AND ) SOVEREIGN BANK (a corporation), ) Defendants ) NO. 05-3555 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Donald T. Kissinger, Esquire, counsel for Anthony D. Notarfrancesco, Defendant in the above-captioned action, hereby certify that a true and correct copy of the foregoing Response to Plaintiffs Petition for Joinder Pursuant to Rule 2232(c) of the Pennsylvania Rules of Civil Procedure was served upon Catherine A. Boyle, Esquire, counsel for Elizabeth Notarfrancesco, Commerce Bank, and Pennsylvania Commerce Bankcorp, Inc., by depositing same in the United States mail, first class, on November 28, 2005, addressed as follows: Catherine A. Boyle, Esquire MEYERS, DESFOR, SALTZGIVER & BOYLE 410 North Second Street / P.O. Box 1062 Harrisburg, P A 17108 Date: /I~?~~ I Pennsylvania Commerce Bankcorp, Inc. 100 Senate Avenue Camp Hill, PA 17011 ~ ~~~/ Donald T. Kissinger, Esquir Howett, Kissinger, Conley & Holst, P.C. 130 Walnut Street / P.O. Box 810 Harrisburg, P A 17108 Telephone: 717-234-2616 Counsel for Defendant, Anthony D. Notarfrancesco , . " -"". '(..oi. :",-' ....'.' n .>0 .-\ .....;- ~~- , "\ .,,-\ ,< c. Donald T. Kissinger, Esquire Howett, Kissinger, Conley & Holst, P.c. 130 Walnut Street P.O. Box SIO Harrisburg, P A 171 OS Telephone: (717) 234-2616 Counsel for Defendant Anthony D. Notarfrancesco Charles A. Rector, Esquire 1104 Fernwood Avenue Suite 203 Camp Hill, PA 17011 Telephone: (717) 761-2161 Counsel for Defendant Anthony D. Notarfrancesco IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH NOT ARFRANCESCO, ) Plaintiff ) ) v. ) ) ANTHONY D. NOT ARFRANCESCO, ) (an individual) and ) SOVEREIGN BANCORP AND ) SOVEREIGN BANK (a corporation), ) Defendants ) NO. 05-3555 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT NOTARFRANCESCO'S RESPONSE TO PLAINTIFF'S MOTION FOR LEA VE TO AMEND COMPLAINT AND NOW, comes Defendant, Anthony D. Notarfrancesco, by and through his counsel, Charles A. Rector, Esquire and Howett, Kissinger, Conley & Holst, P.C., who hereby files the instant Response to Plaintiffs Motion for Leave to Amend Complaint and in support thereof states as follows: 1. Admitted. 2. Admitted. 3. Admitted. By way of further response, Defendant Notarfrancesco (hereafter "Husband"), denies Plaintiffs (hereafter "Wife") complaint as against Husband is meritorious. Moreover, Husband denies it is appropriate for Wife to maintain the instant action. The property Wife alleges was "converted by Husband" was Husband's sole property and constituted marital property as defined by the Divorce Code. Any interest Wife acquired in the property arose only after Wife filed for divorce against Husband. Prior to initiating this suit, Wife filed a divorce claim against Husband, at action number 05-2937 Civil Term, seeking, inter alia, equitable distribution of the marital estate. As the property at issue is marital in nature, and Wife's only interest therein is equitable, arising from the parties' marriage, any issues regarding said property should be addressed to the divorce court. 4. Denied. After reasonable investigation Husband cannot form a belief as to the truth of the averment as Husband is without knowledge as to what Wife "relied upon" in initiating this action. To the extent a response is required, Husband denies he made any representations on which Wife should have relied. In forwarding documents to Wife in the parties' divorce action, Husband made several annotations to Sovereign Bank statements in an attempt to clarify the source of various deposits and withdrawals indicated on the statements. Husband merely provided his best guess as to the source of deposits, and he made no independent investigation to confirm his annotations. To the extent Wife: simply relied upon Husband's annotations in filing this action, Husband believes Wife, and her counsel, should be subject to sanctions pursuant to Rule 1023.1 et. seq. of the Pennsylvania Rules ofCivi] Procedure for failing to perform any due diligence factual investigation prior to initiating the complaint. Husband tried to explain the deposits and withdrawals as a courtesy to Wife; Wife's counsel did not formally ask him to annotate the statements. 2 5. Denied. After reasonable investigation Husband cannot form a belief as to the truth of the avernlent as Husband is without knowledge as to what Wife may have discovered. All Husband knows is that Wife has refused to divulge any revelations she claims to have obtained. To the extent a response is required, Husband did have a bank account with Commerce Bancorp and Commerce Bank (hereafter "Commerce Bank"), which account was opened during marriage with full knowledge of Wife. Assuming, arguendo, that income tax refund checks were deposited into the Commerce Bank account prior to May 31, 2004, then not only did the tax refund checks constitute marital property, but they were deposited into marital bank accounts (regardless of how said accounts may be titled). The proper forum to address such issues is with the divorce court. 6. Admitted in part; denied in part. Husband admits Wife filed a praecipe to discontinue the action as to Sovereign Bank insomuch as Sovereign Bank produced documentation conclusively establishing that Wife's allegations against both Sovereign Bank and Husband could not be supported. Husband denies Wife's statement that she discontinued her action as to Sovereign Bank because it was "clear that Defendant Notarfrancesco's representations regarding the account into which the joint income tax checks were deposited were incorrect." As stated above, Husband provided bank statements for Sovereign Bank to Wife and, as a courtesy, attempted to provide annotations thereto, but he did not undertake any independent investigation to confirm his beliefs. It is reprehensible for Wife to simply rely on such annotations in initiating this action. Wife apparently performed no independent factual investigation prior to filing suit, which behavior should subject Wife, and her counsel, to 3 sanctions pursuant to Rule 1023.1 el. seq. of the Pennsylvania Rules of Civil Procedure. Moreover, Husband denies that, to the extent Wi fe just discovered information relating to Commerce Bank, Wife was unable to discover this information prior to :now. Husband opened his Commerce Bank account during the parties' marriage and with full knowledge of Wife. Wife was therefore aware ofthe Commerce Bank account at the time it was opened in August of2003, and she had either actual or constructive knowledge of whatever deposits were submitted into said account during their marriage. 7. Admitted. Moreover, simultaneously herewith Husband has filed his response to the petition for joinder objecting to the joinder of Commerce Bank on account that the cause of action Wife seeks to allege against Commerce Bank is now time barred as a result of the lapse of the appropriate statute of limitations. 8. Denied. After reasonable investigation Husband cannot form a belief as to the truth of the averment as Husband is without knowledge as to what Wife "discovered" subsequent to filing her complaint. To the extent a response is required, Husband denies Wife could only now have discovered deposits made into the marital Commerce Bank account at or around October of2003. Said account, while in Husband's sole name, was opened with knowledge of Wife during their marriage. Wife therefore had either actual or constructive knowledge of any and all deposits made into said account. Husband further denies Commerce Bank violated any provision of the Uniform Commercial Code in accepting any checks made out to Husband, Wife, or both of them. 4 9. Denied. After reasonable investigation Husband cannot form a belief as to the truth of the averment as Husband is without knowledge as to what Wife "discovered." To the extent a response is required, the dollar amount in her original complaint was slightly less than $10,000.00 out of a marital estate that is conservatively valued at several million dollars. If the actual dollar amount is now even less than her original damage claim, the percentage of the marital estate made up by the disputed sum is de minimus (less than one half of a percentage point), and it is illogical for Wife to be allowed to maintain a separate civil action in such an instance. Permitting Wife to continue will waste judicial resources and waste the parties' money. 10. Neither admitted nor denied as said paragraph constitutes a prayer for relief to which no response is required under the Rules. To the extent a response is required, while the Rules of Civil Procedure do liberally allow for amending of complaints, Husband maintains it is inappropriate for Wife to be permitted to amend her complaint at this time. The cause of action Wife asserts against Commerce Bank is governed by a two year statute of limitations, which is now expired. To the extent any joint income tax refund checks were deposited into Commerce Bank in late 2003, the latest any such checks were deposited was November 17,2003, more than two years ago. Leave for amendment to file an amended complaint is not guaranteed. A party is not permitted to amend a complaint to add a defendant who is now immune from suit as a result of expiration of statute of limitations. 5 11. Admitted. Husband admits a court may grant leave for a party to amend complaint at any time. However, amendment is not permissible if, at the time the party seeks to amend a complaint to add a defendant, that defendant is now immune from suit as a result of expiration of statute of limitations. The statute as against Commerce Bank has expired, and Wife cannot avail herself of the discovery rule to act as a toll of the statute of limitations. As Wife had knowledge of the Commerce Bank account when it opened and the fact they filed joint tax returns in 2002 (the year for which a tax refund would have been received in 2003), Wife had actual or constructive knowledge of any deposits as of 2003. 12. Denied. Husband denies the filing of an amended complaint would not prejudice him at this time, nor Commerce Bank for that matter, given the expiration of the statute of limitations as against Commerce Bank. Moreover, currently pending are Husband's preliminary objections to the initial complaint filed by Wife, which objections seek the dismissal of the action based upon a demurrer. 13. Denied. Husband admits local Rule 20S.2(d) requires counsel to seek the concurrence prior to filing, Husband's counsel denies that such concurrence was sought. 6 WHEREFORE, Defendant, Anthony D. Notarfrancesco, respectfully requests this Honorable Court deny Plaintiffs request for leave to file an amended complaint at this time. Respectfull -- Date: "I.;; ,t(os t ~ LC Donald T. Kissinger, Es ir Howett, Kissinger, Conley Holst, P.c. 130 Walnut Street P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Defendant, Anthony D. Notarfrancesco 7 VERIFICATION I, Anthony D. Notafrancesco, hereby swear and affirm that the facts contained in the foregoing Defendant Notarfrancesco' s Response to Plaintiff's Motion for are Leave to Amend Complaint true and correct to the best of my knowledge, information and belief and are made subject to the penalties of 18 Pa.C.S. 94904 relating to unsworn falsification to authorities. Date: 11/28/05 ~J.~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH NOT ARFRANCESCO, ) Plaintiff ) ) v. ) ) ANTHONY D. NOTARFRANCESCO, ) (an individual) and ) SOVEREIGN BAN CORP AND ) SOVEREIGN BANK (a corporation), ) Defendants ) NO. 05-3555 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Donald T. Kissinger, Esquire, counsel for Anthony D. Notarfnmcesco, Defendant in the above-captioned action, hereby certify that a true and correct copy of the foregoing Response to Plaintiffs Motion for Leave to Amend Complaint was served upon Catherine A. Boyle, Esquire, counsel for Plaintiff, Elizabeth Notarfrancesco and on Commerce Bank, by depositing same in the United States mail, first class, on November 28,2005, addressed as follows: Catherine A. Boyle, Esquire MEYERS, DESFOR, SAL TZGIVER & BOYLE 410 North Second Street I P.O. Box 810 Harrisburg, P A 17108 Commerce Bank 100 Senate A venue Camp Hill, P A 17011 Date: / ~~5-' , , .~ "' . ~~ Donald T. Kissinger, Esq . re Howett, Kissinger, Conley & Holst, P.C. 130 Walnut Street I P.O. Box 810 Harrisburg, P A 17108 Telephone: 717-234-2616 Counsel for Defendant, Anthony D. Notarfrancesco i (' ,., \'"') '-'-' ) ';.\ ::) v' --"~ ,', , .,-, .' ELIZABETH NOT ARFRANCESCO, Plaintiff v. ANTHONY D. NOTARFRANCESCO, (An Individual) and SOVEREIGN BANCORP and SOVEREIGN BANK, (A corporation), Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 05-3555 Civil Term : CIVIL ACTION - LAW : JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter our appearance on behalf of Respondent, Commerce Bank/ Harrisburg, N.A., in the above-captioned action. Dated: I()JJ1/~S I I Dated: 8/4/&5 I I Respectfully submitted, METTE, EVANS & WOODSIDE aninek, suire . LD. No. 741 luJ/ Ambrose W. Heinz, Esquire Sup. Ct. LD. No. 91021 3401 North Front Street P. O. Box 5950 Harrisburg, P A 171] 0-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax - Attorneys for Respondent, Commerce Bank/Harrisburg, N.A. CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Catherine A. Boyle, Esquire Meyers, Desfor, Saltzgiver & Boyle 410 N. 2nd Street P. O. Box 1062 Harrisburg, P A 17108 Attorney for Plaintiff Donald T. Kissinger, Esquire Howett, Kissinger, Conley & Holst, P.C. 130 Walnut Street P. O. Box 810 Harrisburg,PA 17108 Attorney for Anthony D. Notarfrancesco Charles Rector, Esquire Law Office of Charles Rector, Esquire, P.C. 1104 Fernwood Avenue, Suite 203 Camp Hill, PA 17011-6912 Attorney for Anthony D. Notarfrancesco Dated: December 14,2005 aJ~ ~ jJ Ambrose W. Heinz, Esquire Sup. Ct. J.D. No. 91021 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax Attorneys for Respondent, Commerce Bank/Harrisburg, N.A. 439065v1 --- (~'-I \-. C' ELIZABETH NOT ARFRANCESCO, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VANIA v. : NO. 05-3555 Civil Term ANTHONY D. NOTARFRANCESCO, (An Individual) and SOVEREIGN BANCORP and SOVEREIGN BANK, (A corporation), Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED RESPONDENT'S, COMMERCE BANK/HARRISBURG, N.A., RESPONSE TO PLAINTIFF'S PETITION FOR JOINDER PURSUANT TO PA.R.C.P. 2232(C) AND NOW, comes Respondent, Commerce BanklHarrisburg, N.A., (hereinafter "CommercelHarrisburg") by and through its attorneys, Mette, Evans & Woodside, and files this response to Plaintiffs Petition for Joinder pursuant to Pa.R.C.P. 2232(C), and in support thereof states as follows: I. Admitted. 2. Admitted. 3. Admitted. 4. Denied. Plaintiffs Complaint is a document in writing which speaks for itself. Furthermore, upon information and belief, CommercelHarrisburg denies that Plaintiffs Complaint against Defendant Notarfrancesco is meritorious in any fashion. 5. Denied. Upon reasonable investigation, Commerce/Harrisburg is without sufficient information to form a belief as to the truth of the averments of paragraph 5, and the same are denied. 6. Denied. Upon reasonable investigation, Commerce/Harrisburg is without sufficient information to form a belief as to the truth of the averment as to what Plaintiff learned through independent discovery. By way of further response, Pennsylvania Commerce Bancorp, Inc. is a bank holding company and the sole shareholder of Commerce/Harrisburg, and is in no way liable for the alleged actions of Commerce/Harrisburg. Consequently, it would be improper to permit Plaintiff to join Pennsylvania Commerce Bancorp, Inc. as a defendant. 7. Admitted in part and denied in part. It is admitted that Plaintiff filed a Praecipe to Discontinue this action with regard to Sovereign Banle Commerce/Harrisburg, N.A. is without sufficient information to inform a belief as to the remaining averments of paragraph 7 and are the same are denied. 8. Denied. The averments of paragraph 8 are condusions of law to which no response is required under Pennsylvania Rules of Civil Procedure. To the extent that a response may be required and to the extent paragraph 8 avers that Pennsylvania Commerce Bancorp, Inc. is a necessary party to the instant action, the averments of paragraph 8 are denied, as that entity is a shareholder of Commerce/Harrisburg and is thus not liable for the alleged actions of Commerce/Harrisburg. By way of further response, upon information and belief, it is denied that joint tax return checks were 2 negotiated or deposited by Defendant Notarfrancesco without Plaintiffs authorized endorsement. To the contrary, upon information and belief, at all times relevant to this action, Defendant Notarfrancesco and Plaintiff were married and Defendant Notarfrancesco had the authority to endorse said joint tax return checks on behalf of his wife. As a result, any actions taken by Commerce/Harrisburg with respect to the subject checks does not support any claim by Plaintiff against Commerce/Harrisburg, and Commerce/Harrisburg should not be permitted to join Commerce/Harrisburg as a defendant. 9. Denied. The averments of paragraph 9 are conclusions of law to which no response IS required under Pennsylvania Rules of Civil Procedure. To the extent a response may be required and to the extent that paragraph 9 refers to Pennsylvania Commerce Bancorp, Inc., it is specifically denied that this entity accepted joint income tax return checks for deposit, or that it is in any way liabk for the alleged actions of Commerce/Harrisburg. The remaining averments of paragraph 9 are conclusions of law to which no response is required under Pennsylvania Rules of Civil Procedure. 10. Denied. The averments of paragraph 10 are conclusions of law to which no response is required under Pennsylvania Rules of Civil Procedure. 11. Admitted. 12. Denied. The averments of paragraph 12 are conclusions of law to which no response is required under Pennsylvania Rules of Civil Procedure. 3 " 13. Admitted in part and denied in part. It is admitted that Plaintiff filed a Motion for Leave to Amend Complaint. It is denied that it is in any way appropriate to join Pennsylvania Commerce Bancorp, Inc. in this action. 14. Denied. The averments of paragraph 14 are conclusions of law to which no response is required under Pennsylvania Rules of Civil Procedure. To the extent a response may be required, Commerce/Harrisburg, is without sufficient information to form a belief as to the truth of the averments contained in paragraph 14, and same are denied. WHEREFORE, Respondent, Commerce Bank/Harrisburg, N.A., respectfully requests that this Honorable Court issue an order denying Plaintiffs Petition for Joinder pursuant to Pa.R.C.P. 2232(c) as it may pertain to Pennsylvania Commerce Bancorp, Inc. and Commerce Bank/Harrisburg, N.A. Respectfully submitted, METTE, EVANS & WOODSIDE Dated: December 14,2005 By: ()Lfu Ii John F. Yaninek, Esquire Sup. Ct. J.D. No. 55741 Ambrose W. Heinz, Esquire Sup. Ct. J.D. No. 91021 3401 North Front Street P. O. Box 5950 Harrisburg, P A 1711 0-0950 (717) 232-5000 - Phone (717) 236-1S16 - Fax - Attorneys for Respondent, Commerce Bank/Harrisburg, N.A. 4 VERIFICATION I, Katie M. Knisely, hereby acknowledge that I am Assistant Vice President/Corporate Security Officer of Commerce Bank/Harrisburg; that I am authorized to make this verification on its behalf; that I have read the foregoing Response to Plaintiff's Petition for Joinder pursuant to Pa.R.C.P. 2232(c); and that the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa. C.S. ~4904, relating to unsworn falsificati.on to authorities. COMMERCE BANK Date: 439097vl CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Catherine A. Boyle, Esquire Meyers, Desfor, Saltzgiver & Boyle 410 N. 2nd Street P. O. Box 1062 Harrisburg, P A 17108 Attorney for Plaintiff Donald T. Kissinger, Esquire Howett, Kissinger, Conley & Holst, P.C. 130 Walnut Street P. O. Box 810 Harrisburg, PA 17108 Attorney for Anthony D. Notarfrancesco Charles Rector, Esquire Law Office of Charles Rector, Esquire, P.C. 1104 Fernwood Avenue, Suite 203 Camp HilI, PA 17011-6912 Attorney for Anthony D. Notarfrancesco Dated: December 14, 2005 {llw{!j~", Sup. Ct. I.D. No. 91021 3401 North Front Street P. O. Box 5950 Harrisburg, P A 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax Attorneys for Respondent, Commerce Bank/Harrisburg, N.A. 439053v2 --------------- ,-.'" ,'I ~ \ \ r'--'; ELIZABETH NOT ARFRANCESCO Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 05-3555 CIVIL TERM ANTHONY D. NOTARFRANCESCO (an individual) and COMMERCE BANK AND PENNSYLVANIA COMMERCE BANCORP, INC. (a corporation) Defendants CIVIL ACTION - LAW PRAECIPE To the Prothonotary: Please enter my appearance as co-counsel with Howett, Kissinger Conley & Holst, P.c. on behalf of the Defendant, Anthony D. Notarfrancesco, in the above-captioned matter. Respectful! itted: ~- .. .~/~ Date: J(J./;:Z/t:b' ......, L. , . ELIZABETH NOT ARFRANCESCO, Plaintiff v. ANTHONY D. NOTARFRANCESCO, (An Individual) and SOVEREIGN BANCORP and SOVEREIGN BANK, (A corporation), Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VANIA : NO. 05-3555 Civil Term : CIVIL ACTION - LAW : JURY TRIAL DEMANDED PRAECIPE TO SUBSTITUTE VERIFICATION TO THE PROTHONOTARY: Please substitute the attached Verification executed by Katie M. Knisely, for the Verification previously attached to Respondent's, Commerce Bank/Harrisburg, N.A., Response to Plaintiffs Petition for Joinder Pursuant to Pa.R.C.P. 2232(c) filed on December 14, 2005. Dated: December 19, 2005 Respectfully submitted, METTE, EVANS & WOODSIDE I a~ AJ ~--- Ambrose W. Heinz, Esquire Sup. Ct. J.D. No. 91021 3401 North Front Street P. O. Box 5950 Harrisburg,PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax Attorneys for Respondent, Commerce Bank/Harrisburg, N.A. .. VERIFICATION I, Katie M. Knisely, hereby acknowledge that I am Assistant Vice President/Corporate Security Officer of Commerce Bank/Harrisburg; that I am authorized to make this verification on its behalf; that I have read the foregoing Response to Plaintiff's petition for Joinder pursuant to Pa.R.C.P. 2232(c); and that the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa. C.S. ~4904, relating to unsworn falsification to authorities. COMMERCE BANK isely Vice Pre Security Date: 439097vl CERTIFICATE OF SERVICE I certifY that I am this day serving a copy of the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Catherine A. Boyle, Esquire Meyers, Desfor, Saltzgiver & Boyle 410 N. 2nd Street P. O. Box 1062 Harrisburg, PA 17108 Attorney for Plaintiff Donald T. Kissinger, Esquire Howett, Kissinger, Conley & Holst, P.C. 130 Walnut Street P. O. Box 810 Harrisburg, P A 17108 Attorney for Anthony D. Notarfrancesco Dated: December 19,2005 Charles Rector, Esquire Law Office of Charles Rector, Esquire, P.C. 1104 Fernwood Avenue, Suite 203 Camp Hill, PA 17011-6912 Attorney for Anthony D. Notarfrancesco {)LbJ It Ambrose W. Heinz, Esquire Sup. Ct. J.D. No. 91021 340 I North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax Attorneys for Respondent, Commerce Bank/Harrisburg, N.A. 439325vl (i <;: ~:". 1._' \'- ~ s; o en " r..:> CJ ;. ~o. :., ", """ ~,~ ~ <;;?, .ct..." r<"f: -n \!'1 ~1J~ ;-) .1.,\ ~'\ l_< '(5:::1 -,~: i7> \:~~ -'':> ":0 '-" .s;:- o .,p ELIZABETH NOT ARFRANCESCO Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 05-3555 CIVIL TERM ANTHONY D. NOTARFRANCESCO (an individual) and SOVEREIGN BAN CORP and SOVEREIGN BANK, (a corporation) Defendants CIVIL ACTION - LAW NOTICE TO PLEAD To: Elizabeth Notarfrancesco c/o Catherine A. Boyle, Esquire Meyers, Desfor, Saltzgiver & Boyle 410 N. Second Street/P 0 Box 1062 Harrisburg, PAl 71 OS You are hereby notified to file a written response to the enclosed Defendant's Answer with New Matter and Counterclaim to Plaintiffs Complaint within twenty (20) days from service hereof or a judgment may be entered against you. BY: ---'" --".__0'---"" _,"e"" H~"___ ~ Date: /.J /..Ji !o J- I ELIZABETH NOT ARFRANCESCO Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 05-3555 CIVIL TERM ANTHONY D. NOTARFRANCESCO (an individual) and SOVEREIGN BANCORP and SOVEREIGN BANK, (a corporation) Defendants CIVIL ACTION - LAW DEFENDANT, ANTHONY D. NOTARFRANCESCO'S, ANSWER WITH NEW MATTER & COUNTERCLAIM TO PLAINTIFF'S COMPLAIN1: AND NOW, comes the Defendant, Anthony D. Notarfrancesco, by and through his attorney Charles Rector, Esquire, and files the within Answer with New Matter and Counterclaim to Plaintiffs Complaint: 1. Admitted. 2. Admitted. 3. Denied. Paragraph 3 constitutes a legal conclusion which requires no answer and is deemed denied. To the extent that any further answer is required, it is specifically denied that any cause of action by Plaintiff against Defendant arose in Cumbe:rland County or any other jurisdiction and proof thereof is demanded and the same is deemed denied. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Denied. It is specifically denied that the parties received joint income tax "returns" based upon their income tax filings in several states and proof thereof is demanded and the same is deemed denied. To the extent that any further answer is necessary, the parties filed joint income tax returns. 9. Admitted. 10. Denied. Defendant is without knowledge or infornlation sufficient to form a belief as to the truth of what, if any, checks Plaintiff saw or did not see and proof thereof is demanded and the same are deemed denied. It is further denied that any checks "disappeared" from the home and proofthereof is demanded and the same is deemed denied. It is further denied that Defendant denied the existence of the checks and likewise it is denied that Defendant at any time represented to Plaintiff that as the result of a reduction in his salary "these checks had to be repayed to PWC" and proof thereof demanded and the same is deemed denied. 11. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of this averment and proof thereof is demanded and same is deemed denied. To the extent that any further answer is required, neither copies of the checks nor proof of endorsements are attached to Plaintiffs Complaint and proof thereof is demanded and the same are deemed denied. 12. Denied. It is denied that at least three (3) joint income tax return checks totaling $9,674.00, were deposited in an account that Defendant maintained with Sovereign Bank and proof thereof is demanded and the same are deemed denied. By way of further answer, Defendant maintained a Sovereign Bank account in his name. It has been conclusively established however, by Sovereign Bank, subsequent to the filing of Plaintiffs Complaint, that no joint income tax refund checks were deposited there by Defendant. 13. Denied. It is denied that Plaintiff had no knowledge, until recently, of the existence of the Sovereign Bank account in Defendant's name alone and proof thereof is demanded and the same is deemed denied. To the extent that any further answer is required, Plaintiff first became aware of Defendant's Sovereign Bank account during his deposition, in her divorce action, in December 2004. 14. Admitted. 15. Admitted in part and denied in part. Defendant admits opening a Sovereign Bank account. Defendant further admits that some of the money in that account was used in conjunction with his relationship with Cathey Berry. Defendant further acknowledges that the balance in said account at the time of separation from his wife (Plaintiff), constituted marital property. It is denied that the funds in the account were used "in large part" to fund his relationship with Ms. Berry and proof thereof is denied and the same is deemed denied. By way of further answer, Defendant used some of the funds in this account for legitimate business expenses. Count I-Conversion (Af!ainst Defendant Notarfrancesco) 16. No answer required. 17. Denied. Paragraph 17 constitutes a legal conclusion which requires no answer and is deemed denied. To the extent that any further answer is required, Plaintiffs right to the proceeds of any joint income tax checks was equitable in nature and is controlled by the Pennsylvania Divorce Code. Plaintiffs interest in any tax refund checks arose only as a result of her filing a Divorce Complaint in June 2005. As of the dates ofreceipt of the refunds in 2003, Plaintiff had no interest in such refunds either at law or in equity inasmuch as the refunds were generated from Defendant's earned income during the 2002 tax yt:ar. 18. Denied. Paragraph 18 constitutes a legal conclusion which requires no answer and is deemed denied. To the extent that any further answer is required and to the extent that joint income tax refund checks existed, they were generated basedl upon Defendant's earned income for the 2002 tax year and the refunds in questions were Defendant's property. 19. Denied. Paragraph 19 constitutes a series of legal conclusions which requires no answer and are deemed denied. To the extent that any further answer is required, it is specifically denied that Defendant engaged in any conduct which was unlawful or was otherwise a serious deprivation of Plaintiffs possessory rights and proof thereof is demanded. 20. Denied. Paragraph 20 constitutes a legal conclusion which requires no answer and is deemed denied. To the extent that any further answer is required, it is denied that Plaintiff ever had a cognizable "possessory" interest in tax refund checks and proof thereof is demanded and the same is deemed denied. 21. Denied. Paragraph 21 constitutes a series of legal conclusions which requires no answer and are deemed denied. To the extent that any further answer is required, it is specifically denied that Defendant acted with malice, indifference and/or recklessness in depositing and/or cashing joint income tax refund checks generated from his earned income and further denied that a "conversion" of checks occurred in this case and proof thereof is demanded. WHEREFORE, Defendant, Anthony D. Notarfrancesco, respectfully requests your Honorable Court to dismiss with prejudice Plaintiffs Complaint as well as her request for punitive damages and to grant judgment in favor of Defendant, Anthony D. Notarfrancesco. Count II - Violation of the Pennsvlvania Uniform Commercial Code (Af!ainst Defendant Sovereif!nl 22. through 28. No answer required. NEW MATTER 29. Paragraphs 1 through 28 are incorporated herein by reference. 30. Plaintiffs action is precluded by the statute oflimitations. 31. Plaintiffs action is barred by the doctrine oflaches. 32. Plaintiffs action is precluded by her previous filing of a divorce claim against Defendant, seeking equitable distribution of marital property, which claim controls and supercedes her claims raised in the instant complaint. 33. Plaintiffs action is barred by the doctrines of cons'~nt and authorization. WHEREFORE, Defendant, Anthony D. Notarfrancesco, respectfully requests that your Honorable Court dismiss Plaintiffs Complaint with prejudice. COUNTERCLAIM 34. Paragraphs I through 33 are incorporated herein by reference. 35. On or about October 13, 2005, Plaintiff voluntarily discontinued her cause of action against co-defendant, Sovereign Bankcorp and Sovereign Bank. 36. Plaintiff learned conclusively that no joint tax refund checks were negotiated by Defendant at Sovereign Bank. 37. Defendant sought Plaintiffs consent to delay filing an answer to her Complaint pending disposition of her Motions to Amend the Complaint and to Add an Additional Defendant, however, that request was refused (See Exhibit "An attached hereto and made part hereo t). 38. Plaintiffs continued cause of action against Defendant, with the knowledge that various of the averments contained therein are factually incorrect and unsupportable by evidence, constitutes arbitrary, vexatious and bad faith conduct which entitles Defendant to an award of counsel fees pursuant to 42 Pa.C.S. ~ 2503. WHEREFORE, Defendant, Anthony D. Notarfrancesco, respectfully requests that your Honorable Court award him counsel fees in an amount the Court deems just and appropriate after hearing. --- ",,-" -,.... Date: ;.J /JI /bJ/ . I sqUIre 1104 Fern oodnue, Ste. 203 Camp Hill, PA 17011-6912 (717) 761-8101 Attorney for Defendant, Anthony D. Notarfrancesco I verify that the 5tatements mad~ herein are true and corre'cl. I understand that false statements herein are made subjed to the penalties of 18. Pi~.C.S. Sedion 4904, relati 9 to unsworn falsification to authorities. Date: I z/~ , /1...05 SO.d lL:Ol SOOG LG oaa U2E9 E8L OIU ~G89-88L-Ol~:>:e,; UO:OI (03~)S002-12-J30 EOOd aWl1/a'lOO x~ LAW OFFICES MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET P.O. BOX 1062 I. EMANUELME:YERS (1915-1970) BRUCE D. DESFOR LAURIE A. SALTZGIVER CATHERINE A. BOYLE KELLY K. SMITH HARRISBURG, PA. 17108 (717) 236-9428 December IS, 2005 FAX (7!7) 2:36-2817 WEBSITE www.meyersdesfor.com EMAIL lsaltzgiver@meyersdesfor.com cboyle@meyersdesfor.com ksmith@meyersdesfor.com Charles Rector, Esquire 1104 Fernwood Avenue Suite 203 Camp Hill, PA 17011-6912 RE: Notarfrancesco vs. Notarfrancesco & Sovereilm BancorD and Sovereil!n Bank No. 05-3555 Dear Charles: I understand that you contacted my office and had a conversation with Kelly Smith, Esquire, concerning the above-referenced matter. Please be advised that my client will not consent to your client simply declining to answer the pending Complaint against him even though there is a Motion for Leave to Amend the Complaint to acid an additional defendant. There is no Rule of Civil Procedure that I am aware of that relieves your client of his responsibility to answer the Complaint in the appropriate time frame. If you are aware of something otherwise, please contact me so that we may discuss same. Thank you for your attention. Very truly yours, CAB/vjh cc: Elizabeth Notarfrancesco ~j\H CERTIFICATE OF SERVICE ,r- 1, Charles Rector, Esquire, do hereby certify that on the ~ / day of December, 2005, 1 caused a true and correct copy of the within Defendant's Answer with New Matter and Counterclaim to Plaintiffs Complaint to be served upon the following counsel of record by depositing same in first class, United States mail, postage paid, in Camp Hill, Pennsylvania: Catherine A, Boyle, Esquire Meyers, Deslor, Saltzgiver & Boyle 410 N. Second Street P. O. Box 1062 H arrishurg, P A 17108 Darren J. Holst, Esquire & Donald T. Kissinger, Esquire Howell Kissinger Conley & Holst 130 Walnut Street P. O. Box 810 Harrisburg, PA 17108-0810 By: .;^'r....... ~~._~.. _.--~-_.-_.-. ~~~- .-.--..... -----.-" -. "j, / ---- Date:~Dj ."." ~ ,- C) ~:._': ....., = C~ c.r> ~ '..... ::r." f1'p:;, :q~j __.' I (21(,:) ?;~-~ ~,')rn ~t -0-;0, ''0 :.<; CJ fi" " N ..,... :;~ -..J . ELIZABETH NOTARFRANCESCO, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW ANTHONY D. NOTARFRANCESCO, and COMMERCE BANK and PENNSYL VANIA COMMERCE BANCORP, INC., Defendants NO. 05-3555 CIVIL TERM ORDER OF COURT AND NOW, this 20th day of December, 2005, upon consideration of Plaintiffs Motion for Leave To Amend Complaint and of Defendant Notarfrancesco's Response to Plaintiffs Motion for Leave To Amend Complaint, Plaintiffs Motion for Leave To Amend Complaint is granted, and Plaintiff is afforded a period of 20 days from the date of this order to file an amended complaint. BY THE COURT, '11.!c"""Li " /. '. /~)I. I I: J '-7{, . ["<-1 v'.:\, . .' J. Wesley Oler', Jr., J. Catherine A. Boyle, Esq. 410 North Second Street P.O. Box 1062 Harrisburg, P A 17108 Attorney for Plaintiff .J ;::,,:(1:) C h .f" ll_j o I .to f\l' t Z :130 Seal ""AU"".,"'''''' ....,'1 '0 NJV..lV'i\...S-i..lU.:iU :::i1_ :J j;)I:U0-,G::r1!:l ELIZABETH NOT ARFRANCESCO, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW ANTHONY D. NOTARFRANCESCO, and SOVEREIGN BANKCORP and SOVEREIGN BANK (a corporation), Defendants NO. 05-3555 CIVIL TERM ORDER OF COURT AND NOW, this 16th day of December, 2005, upon consideration of Plaintiffs Petition for Joinder Pursuant to Pa. R. c.P. 223 2( c), of Defendant N otarfrancesco' s Response to Plaintiffs Petition for Joinder Pursuant to Pa. R.Civ.P. 2232(c), and of Respondent's Commerce Bank/Harrisburg, N.A., Response to Plaintiffs Petition for Joinder Pursuant to Pa. R.C.P. 2232(c), Plaintiffs petition for joinder is granted to the extent that Plaintiff is permitted to join Commerce Bancorp, Inc., and Comrnerce Bank as a Defendant, without prejudice to this Defendant's right to assert its defenses in an answer to the joinder complaint. BY THE COURT, I... / '~/. /. .' i /\ / / , / "-"'7 ' V\/ ,. / I~/l esley Oler"Jr., ' J. Catherine A. Boyle, Esq.' 410 North Second Street P.O. Box 1062 Harrisburg, P A 17108 Attorney for Plaintiff /));. 0) ~ .~~L . , i\L. -""o,;;"-Ir-, J,1\) 61..r- !,id l'v .'\ ! ;; :)]0 9lJOl AtlV.lC(,O,!lClid 3l-U :10 30L:HO-n~n!:f Donald Kissinger, Esq. 130 Walnut Street P.O. Box 810 Harrisburg, P A 17108 Attorney for Defendant Commerce Bank and Pennsylvania Commerce B 100 Senate Avenue Camp Hill, PA 17011 rJ J.-). -0C; ~ /YI'-tJ-~L Jit" :rc ELIZABETH NOT ARFRANCESCO, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : No.05-3555 Civil Term ANTHONY D. NOT ARFRANCESCO, (An Individual) and COMMERCE BANK AND PENNSYLVANIA COMMERCE BAN CORP, INC., (A Corporation) : CIVIL ACTION - LAW : JURY TRIAL DEMANDED Defendants. AMENDED COMPLAll-.rT AND NOW, comes the Plaintiff, Elizabeth Notarfrancesco, by and through her attorneys, Meyers, Desfor, Saltzgiver & Boyle, and files the following Complaint, and in support thereof, avers as follows: 1. Plaintiff is Elizabeth Notarfrancesco, an adult individual residing in Cumberland County, Pennsylvania (hereinafter "Plaintiff'). 2. Defendant, Anthony D. Notarfrancesco (hereinafter "Defendant Notarfrancesco"), is an adult individual who previously resided in Cumberland County, Pennsylvania and now resides in Baltimore, Maryland. 3. Plaintiffs cause of action against Defendant Notarfrancesco arose in Cumberland County, Pennsylvania. 4. Defendant, Commerce Bank and Pennsylvania Commerce Bancorp, Inc. (hereinafter "Defendant Commerce"), is a corporation which is headquartered in and regularly conducts business in Cumberland County, Pennsylvania. MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET. P,O, BOX 1.062 . HARRISBURG, PA 17108 (717) 236~9428 . FAX (717) 236-21317 5. Plaintiff is married to Defendant Notarfrancesco. Plaintiff and Defendant Notarfrancesco are currently separated and Plaintiff has filed a Complaint in Divorce, which is currently pending in Cumberland County" Pennsylvania. 6. Defendant Notarfrancesco is a Certified Public Accountant and Partner with the accounting firm of Price Waterhouse Coopers, LLP (hereinafter "PWC"). 7. As a result of Defendant Notartrancesco's position with PWC, the parties routinely filed joint income tax returns in several states, including Pennsylvania, New Jersey and New York. 8. In the fall of2003, the parties received joint income tax returns based on their joint income tax filings in these various states. These joint income tax returns totaled approximately $7,910.00. 9. The checks for these joint income tax returns were delivered to the home of Plaintiff and Defendant Notarfrancesco in Cumberland County, Pennsylvania. 10. Plaintiff saw at least two checks; however, the checks subsequently disappeared from the home. When Plaintiff questioned Defendant Notartrancesco about the checks, he repeatedly represented to Plaintiff that the checks never existed. Defendant Notarfrancesco later represented to Plaintiff that his salary from PWC was reduced and that these checks had to be repaid to PWc. 11. Plaintiff never endorsed the joint income tax return checks. 12. At least one of the joint income tax return checks was deposited into an account that Defendant Notarfrancesco held with Defendant Commerce, which account was in 2 I II MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 Defendant Notarfrancesco's name alone. Such check was deposited with an unauthorized signature for Plaintiff. 13. Plaintiff believes that Defendant Notarfrancesco signed her name to the check that was deposited into his account with Defendant Commerce. 14. Plaintiff also believes that Defendant NotarfraDcesco signed her name to at least three additional joint income tax return checks. 15. Plaintiff did not authorize Defendant Notarfrancesco to sign her name to any joint income tax return checks. 16. Until recently, Plaintiff had no knowledge that Dekndant Notarfrancesco deposited joint income tax return checks into an account with Defendant Commerce in his name alone. 17. Plaintiff has since discovered that Defendant Notarti-ancesco may have transferred funds from the account with Defendant Commerce to his Sovereign Bank account in Defendant Notarfrancesco's name alone in order to finance an extra-marital affair. " ~ MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET. P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236.9428 . FAX (717) 236-2817 COUNT I - CONVERSION (AGAINST DEFENDANT NOT ARFRANCESCO) 18. The averments of paragraphs one through seventeen are incorporated herein by reference. 19. Plaintiff had a possessory right to the joint income tax return checks received by the parties. 20. Defendant Notarfrancesco intentionally exercised dominion and control over the joint income tax return checks. 21. Defendant Notarfrancesco's actions in exercising dominion and control over the joint income tax return checks resulted in an unlawful or serious deprivation and interfered with Plaintiff s possessory rights. 22. Defendant Notarfrancesco had no lawful justification for depriving Plaintiff of her right to or interfering with her possession of the joint income tax return checks. 23. Defendant Notarfrancesco acted with malice, indifti~rence and/or recklessness in converting the joint tax return checks to his individual use. WHEREFORE, Plaintiff prays that this Honorable Court enter judgment against Defendant Notarfrancesco for damages in the amount of $7,910.00 plus interest and costs, as well as punitive damages and any other reliefthat the Court deems appropriate. 4 MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET . P,O. BOX 1062 . HARRISBURG, PA 1710B (717) 236-9428 . FAX (717) 236-2817 COUNT II - VIOLATION OF THE PENNSYLVANIA UNIFORM COMMERCIAL CODE (AGAINST DEFENDANT COMMERCE) 24. The averments of paragraphs one through twenty-three are incorporated herein by reference. 25. Pursuant to 13 Pa. C.S.A. S 3110(d). an instrument payable to two or more persons if not in the alternative is payable to all of them and may be negotiated only by all of them. 26. Pursuant to 13 Pa. C.S.A. S 3420(a), an instrument is converted if a bank makes or obtains payment with respect to the instrument for a person not entitled to enforce the instrument or receive payment. 27. Defendant Notarfrancesco was not entitled to receive payment for the joint income tax return checks without the authorized endorsement of Plaintiff. 28. Defendant Commerce made payment to Defendant'lotarfrancesco for the joint income tax return checks without the authorized endorsement of Plaintiff. 29. Plaintiff did not consent to the deposit of the joint income tax return checks into the account maintained solely by Defendant Notarfrancesco with Defendant Commerce. 30. Defendant Commerce acted with malice, indifference and/or recklessness in accepting the joint tax return checks for deposit without Plaintiff s authorized endorsement, 5 I II II MEYERS, DESFOR, SALTZGIVEA & BOYLE 410 NORTH SECOND STREET. P.O. BOX 1062 . KAHRISBURG, PA 1710B (717) 236-9428 . FAX (717) 236-2817 WHEREFORE Plaintiff prays that this Honorable Court enter judgment against Defendant Commerce for damages in the amount of$7,910.00 plus interest and costs, punitive damages and any other relief deemed appropriate by the Court. A JURY TRIAL IS DEMANDED. Respectfully submitted, ~rineA. ~OYle, Esquire Attorney LD. No. 76328 \~.te=~'cW) X K. i, EsqUire Attorney LD. No. 77415 Meyers, Desfor, Saltzgiver & Boyle 410 North Second Street P.O. Box 1062 Harrisburg, P A 17108 (717) 236-9428 Dated: '/3/0~ I I 6 MEYERS, DESFOR. SALTZGIVER & BOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 VERIFICATION I, Elizabeth Notarfrancesco , verify that the statements made in this Amended Complaint are true and correct to the bes I understand that fals of my knowledge, information and belief. statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. I II Dated: I I II II I' ii 'I I, 'i II II II II Ii I, , , II , 'j! 1/3/2006 Plaintif / Defendant MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET. P.O. BOX 1052 . HARRISBURG, PA 17108 (717) 236"9428 . FAX (717) 236.2B17 () ,...., c.- r :~: C) ,,-;) Lj..... -n ~.- ::;:! il~ I Cl n ;,;1 .TJ u; -"< ELIZABETH NOT ARFRANCESCO, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : No.05-3555 Civil Term ANTHONY D. NOT ARFRANCESCO, (An Individual) and COMMERCE BANK AND PENNSYLVANIA COMMERCE BANCORP, INC., (A Corporation) : CIVIL ACTION - LAW : JURY TRIAL DEMANDED Defendants. PLAINTIFF'S REPLY TO DEFENDANT NOT ARFRANCESCO'S NEW MATTER AND COUNTERCLAIM AND NOW, comes the Plaintiff, Elizabeth Notarfrancesco, by and through her attorneys, Meyers, Desfor, Saltzgiver & Boyle, and files the following Reply to the New Matter and Counterclaim raised in the Answer filed by Defendant Notarfrancesco on December 21,2005. NEW MATTER 29. This is an incorporation paragraph to which no response is required. 30. This paragraph states a legal conclusion, to which no response is required. By way of further answer, Plaintiff is not barred from filing the instant action by the statute of limitations. 31. This paragraph states a legal conclusion to which no response is required. By way of MEYERS, DESFOR, SALTZGIVER & l3iOYLE 410 NORTH SECOND STREET. P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236.2817 iurther answer, Plaintiff is not barred irom filing the instant action by the doctrine of laches. I 32. This paragraph states a legal conclusion to which nD response is required. By way of further answer, Defendant Notarirancesco raised this argument in his Preliminary Objections to the Complaint, which Preliminary Objections were denied by Court Order dated November 23,2005. 33. This paragraph states a legal conclusion to which no response is required. By way of further answer, Plaintiff is not bared irom filing the instant action by the doctrines of consent and authorization. COUNTERCLAIM 34. This is an incorporation paragraph, to which no response is required. 35. Admitted. 36. Admitted in part, denied in part. Plaintiff admits that she learned that the deposits with Sovereign Bank were not joint income tax retimd checks, as Defendant Notarfrancesco had previously represented. The remainder of the allegation is denied. 37. Admitted in part, denied in part. The letter trom Plaintiffs counsel speaks for itself. See Exhibit "A" attached to Defendant's Counterclaim. By way of further answer, the pending Motion for Leave to Amend the Complaimt had not yet been ruled on by the Court. Further, the allegations against Defendant Notarfrancesco were substantially similar in both the original and amended Complaints. MEYERS, DESFOR, SALTZGIVER & EIOYLE 410 NORTH SECOND STREET . p.o. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 38. This paragraph states a legal conclusion to which no response is required. By way of further answer, Plaintiff proceeds in the instant action in good faith. From the inception of this litigation, Defendant Notartfancesco has repeatedly threatened Plaintiff and Plaintiff s counsel with all manner of sanctions and counsel fees, including handing a letter containing such threats to Plaintiffs counsel on the way to the counsel table to argue Defendant Notarfrancesco's Preliminary Objections, which were summarily denied. Defendant Notarfrancesco's claim for counsel fees is nothing more than pure harassment and an attempt to threaten Plaintiff into discontinuing the instant action. WHEREFORE, Plaintiff, Elizabeth Notarfrancesco, respectfully requests that this Honorable Court dismiss the New Matter and Counterclaim filed by Anthony D. Notarfrancesco in the above captioned action. Respectfully submitted, Catherine A. Boyle, Esquire Attorney J.D. No. 76328 Meyers, Desfor, Saltzgiver & Boyle 410 North Second Street P.O. Box 1062 Harrisburg, PA 17108 (717) 236-9428 Attorney for Plaintiff MEYERS, DESFOR, SALTZGIVER & BOYtE 410 NORTH SECOND STREET. P.O. BOX 1062 . HARRISBURG, PA 1710B (717) 236-9428 . FAX (717) 236-:~B17 I I VERIFICATION I, Elizabeth Notarfrancesco , verify that the statements made in this Plaintiff's Reply to Defendant Notarfrancesco's and Counterclaim of my knowledge, New Matter are true and correct to the bes information and belief. I understand that fals statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Dated: 1/10/06 Defendant p II II II Ii II " j! [I Ii , MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET . P,O, BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236.2817 ELIZABETH NOT ARFRANCESCO, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VANIA v. : No.05-3555 Civil Term ANTHONY D. NOTARFRANCESCO, (An Individual) and COMMERCE BANK AND PENNSYLVANIA COMMERCE BANCORP, INC., (A Corporation) : CIVIL ACTION - LAW : JURY TRIAL DEMANDED Defendants. CERTIFICATE OF SERVICE I hereby certify that on this /O'fr. day of January 2006. a true and correct copy of the foregoing Plaintiffs Reply to New Matter and Counterclaim was sent via first-class mail, postage pre-paid to the following: Anthony D. Notarfrancesco c/o Charles Rector, Esquire LA W OFFICES OF CHARLES RECTOR, ESQUIRE, P.C. 1104 Fernwood Avenue. Suite 203 Camp Hill, PA 17011-6912 Commerce Bank and Pennsylvania Commerce Bancorp, Inc. c/o Ambrose Heinz, Esquire METTE, EVANS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, P A 17110-0950 I Ii II 4f:fL, Attorney for Plaintiff I MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 r~..) , " 'cJ 1'-' C":' ELIZABETH NOT ARFRANCESCO Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 05-3555 CIVIL TERM ANTHONY D. NOTARFRANCESCO (an individual) and COMMERCE BANK AND PENNSYLVANIA COMMERCE BANCORP, me. (a corporation) Defendants CIVIL ACTION - LAW MOTION FOR PROTECTIVE ORDER TO POSTPONE & RESCHEDULE DEPOSITION AND NOW, comes the Defendant, Anthony D. Notarfrancesco, by and through his attorney Charles Rector, Esquire, and respectfully represents as follows: 1. On December 14, 2005, counsel for Defendant entered his appearance on behalf of Anthony D. Notarfrancesco (See Exhibit "A" attached). 2. On January 6, 2006, counsel for Defendant notified Plaintiff, through her counsel, of his unavailability for Defendant's scheduled deposition on January 26,2006 (see Exhibit "B" attached). 3. On January 12,2006, Plaintiff, through her counsel, refused to reschedule Defendant's deposition (See Exhibit "c" attached). 4. On January 18, 2006, counsel for Defendant accepted service ofthe Amended Complaint and advised Plaintiffs counsel of six alternative dates for Defendant's deposition in February 2006 (See Exhibit "D" attached). Defendant has not yet filed a responsive pleading to Plaintiffs Amended Complaint. 5. Despite continued repeated efforts by Defendant's counsel to obtain an alternative date certain, counsel for Plaintiff has refused. 6. Nonetheless, on January 23,2006, counsel for Defendant provided over one hundred sixty (160) pages of additional discovery responsive to Plaintiffs Notice to Produce, which information was to otherwise have been provided by Defendant at his deposition, and which included fully executed blanket authorizations which Authorizations were not requested by Plaintiff, but will likely assist her in the discovery process. 7. Defendant remains ready, willing and able to be deposed, when his attorney is available to be present. WHEREFORE, Defendant respectfully requests that your Honorable Court enter a Protective Order staying the deposition of Defendant, Anthony D. Notarfrancesco, scheduled for Thursday, January 26, 2006, because of defense counsel's unavailability, until such time as counsel for the parties can agree on a rescheduled date and time certain. Respectfull ---.... .A- ries Re or, quire 1104 Fernwood Avenue, Ste. 203 Camp Hill, PAl 70 11-6912 (717) 761-8101 Attorney for Defendant, Anthony D. Notarfrancesco Date: .("<1(0.. 1 verifY that the statements made herein are true and correct. I understand that false atements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, i rel~ti 9 to unsworn falsification to authorities. I I oaie !/;Jj;'tXJb ! 500 ' d SO.d 08:9L 900~ 8~ uer P2E9 E8L OIP tI~89-88L-Oltl:xe.J 22:91 (NOW)9002-E2-NHr am ll/a~oo x~ ELIZABETH NOT ARFRANCESCO Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND C0l3NTY, PENNSYLVANIA V. : NO. 05-3555 CIVIL TERM ANTHONY D. NOTARFRANCESCO (an individual) and COMMERCE BANK AND PENNSYLVANIA COMMERCE BANCORP, INe. (a corporation) Defendants CIVIL ACTION - LAW PRAECIPE To the Prothonotary: ('-",' '_C C:~ Please enter my appearance as co-counsel with Howett, Kissinger Conley & Holst, P.c. on behalf ofthe Defendant, Anthony D. Notarfrancesco, in the above-captioned matter. "~ / Respectfull itted: Date: ltl.h:<jfl5 ~""""';::: ~.A '4 -," ~~."'".i<"":;<,<,,:" "'-"~,,,,':l'!,;:~ 'I- r: ,; r' t~ Law Offices of Charles Rector, Esquire, P.c. 1104 Fernwood Avenue, Ste. 203 Camp Hill, PA 17011-6912 www.charlesrector.com Tammy S. Faust Paralegal (717) 761-8101 Fax (717) 761-2161 January 6, 2006 Catherine A. Boyle, Esquire Meyers, Desfor, Saltzgiver & Boyle 410 N. Second Street P. O. Box 1062 Harrisburg, PA 17108 Re: Notarfrancesco v. Notarfrancesco & Sovereign Bank No. 05-3555 Civil Term (Cumberland County) Dear Cathy: I agree to accept service of an Amended Complaint on behalf of Mr. Notarfrancesco in the above-referenced matter. It appears that Judge Oler has granted you twenty (20) days from December 20, 2005, to file. [ am unavailable on January 26, 2006, as is Tony, for his deposition. Also, your Notice to Produce requests voluminous information that pre-dates the amended cause of action alleged by over two (2) years. I would like to speak with you about rescheduling the deposition at a time in the near future convenient for all and also attempt to refine your discovery requests. Your kind and prompt attention to this matter is most appreciated. Very truly yours, ,1..<.- Charles Rector C Rftsf cc: Anthony Notarfrancesco Donald T. Kissinger, Esquire r-"'~~:.:'}$.r;::r.:;~~~:" " ",\ t'. [,"'OS;,;:;.'" ,.'., _,.;-..., ~~~." u . 'i2" j) , f, ~~"....." ".,......._. '. r! .c' \A __T','; ",~~;Y' ~;,"'l!Il:_~~'''''''~~ LAW OFFICES MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET P.O. BOX 1062 1. EMANUEL MEYERStJ915-1970) BRUCE D. DESFOR LAURIE A. 5AL TZG1VER CATHERINE A. BOYLE KELLY K. SMITH HARRISBURG, PA. 17108 (717) 236-9428 January 12, 2006 FAX (717) 236-2817 WEBSITE www.meyersdesfor.com EMAIL Isaltzgiver@meyersdesfor.com cboyle@meyersdesfor.com ksmith@meyersdesfor.com VIA FAX & U.S. MAIL Charles Rector, Esquire LAW OFFICES OF CHARLES RECTOR, ESQUIRE, P.e. 1104 Femwood Avenue, Suite 203 Camp Hill, P A 17011-6912 Re: Notarfrancesco v. Notarfrancesco & Commerce Bank No. 05-3555 Civil Term Dear Charlie: Thank you for agreeing to accept service of the Amended Complaint on behalf of Mr. Notarfrancesco in the above-referenced matter. Additionally, 1 am writing in response to the balance of your correspondence dated January 6, 2006. As 1 am sure you are aware, this deposition has been rescheduled several times already to accommodate Mr. Notarfrancesco's schedule. Further, the Court has already denied Mr. Notarfrancesco's Motion to Quash to avoid attendance at this deposition. Accordingly, the deposition will not be rescheduled and the Notice to Produce will not be revised. The deposition will proceed as scheduled. If your client does not attend, we will seek further Court sanctions. Very truly yours, CAB/vjh cc: Elizabeth Notarfrancesco ( !,~!., :i.,..t"~;".~~._""'d(iir:''.:'~'!::t~~:.;;::,~~, i,i'I', ~ ' i>-~ , h" c.. '" ~' " ~ ,~ '.: Law Offices of Charles Rector, Esquire, P.C. 1104 Fernwood Avenue, Ste. 203 Camp Hill, PA 17011-6912 www.charlesrector.com Tammy S. Faust Paralegal (717) 761-8101 Fax (717) 761-2161 January 18, 2006 Catherine A. Boyle, Esquire Meyers, Desfor, Saltzgiver & Boyle 410 N. Second Street P. O. Box 1062 Harrisburg, PA 17108 Re: Notarfrancesco v. Notarfrancesco & Commerce Bank No. 05-3555 Civil Term (Cumberland County) Dear Cathy: I enclose herewith a fully executed Acceptance of Service of the Amended Complaint. As I previously indicated to you, I am unavailable on Thursday, January 26, 2006, for Mr. Notarfrancesco's deposition. The following are alternative days when Mr. Notarfrancesco and I are available for his deposition: February 13, 14, 23, 24, 27 or 28 ~-~_. Let me know which of the above dates works for you at your _~9rJiest.--,'" convenience. // v.,ry truly yO, "~, /7 ( c~) {~ Charles Rector CRltsf cc: Anthony Notarfrancesco rf.';i~:'(C:::'::~Z-':'W,;.:9.~~ I ,.::._"._,;:;;~6t/ D CERTIFICATE OF SERVICE -If. I, Charles Rector, Esquire, do hereby certify that on the ..;., _ day of January, 2006, I caused a true and correct copy of the within Motion for Protective Order to Postpone and Reschedule Deposition to be served upon the following counsel of record by depositing same in first class, United States mail, postage paid, in Camp Hill, Pennsylvania: Catherine A. Boyle, Esquire Meyers, Desfor, Saltzgiver & Boyle P. O. Box 1062 Harrisburg, PA 17108 Ambrose W. Heinz, Esquire Mette, Evans & Woodside P. O. Box 5950 Harrisburg, PAl 711 0 Date: -M C2 \'~?, C..., C. .le ,..., ,,-~ ELIZABETH NOT ARFRANCESCO, Plaintiff, v. ANTHONY D. NOT ARFRANCESCO, (An Individual) and COMMERCE BANK AND PENNSYLVANIA COMMERCE BANCORP, INe., (A Corporation) Defendants. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : No.05-3555 Civil Term : CIVIL ACTION - LAW : JURY TRIAL DEMANDED ACCEPTANCE OF SERVICE I accept service of the Amended Complaint on behalf of Commerce Bank/Harrisburg, N.A. and Pennsylvania Commerce Bancorp, Inc. and certify that I am authorized to do so. / -d5- C)oo5- (Date) fJt- fu IL Ambrose W. Heinz, Etquire 340 I North Front Street P.O. Box 5950 Harrisburg, PA 17] 10-0950 Attorney for Commerce Bank/Harrisburg, N.A MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 ...-> 0;:::'3 c.;) (..;.:-' '- '2;.7;: ~ w Cl :s -"" o ., ::;J ___""f"1 rHp -oe3 /2 -(' '~)L) ;~~ ~~-! .)c> .,>"'"\'t"t ,) ~\ ~& (~) 1') _-..I ELIZABETH NOT ARFRANCESCO, Plaintiff, v. ANTHONY D. NOTARFRANCESCO, (An Individual) and COMMERCE BANK AND PENNSYLVANIA COMMERCE BANCORP, INC., (A Corporation) Defendants. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : No.05-3555 Civil Term : CIVIL ACTION - LAW : JURY TRIAL DEMANDED ACCEPTANCE OF SERVICE I accept service of the Amended Complaint on behalf of Anthony D. Notarfrancesco and certify that I am authorized to do so. I S-/O ( II Ch s Rector 1104 Fernwo Avenue, Suite 203 Camp Hill, PA 17011-6912 Attorney for Anthony D. Notarfrancesco MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 r--> C? = c:;r. ~ -,~,.. :;;c (-'" c:::> o .." :2 l'n:D , r- ",n'" i19 ;.\~~} ~;~ ~l~~~ ~~,3 en ::0 .< ~ ~. W :''0 0) ELIZABETH NOT ARFRANCESCO, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VANIA v. : NO. 05-3555 Civil Term ANTHONY D. NOTARFRANCESCO, (An Individual) and COMMERCE BANK and PENNSYLVANIA COMMERCE BAN CORP, INC., (A corporation), Defendants CIVIL ACTION - LAW : JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF DEFENDANTS. COMMERCE BANK/HARRISBURG. N.A. AND PENNSYLVANIA COMMERCE BANCORP. INC.. TO PLAINTIFF'S AMENDED COMPLAINT Defendants, Commerce Bank/Harrisburg, N.A. and Pennsylvania Commerce Bancorp. Inc., by and through their attorneys, Mette, Evans and Woodside. hereby file the following Preliminary Objections to Plaintiffs Amended Complaint, pursuant to Pa.R.C.P. 1028, in support which they aver as follows: I. Plaintiff, Elizabeth Notarfrancesco (the "Plaintiff'), commenced this action against Defendants, Commerce Bank/Harrisburg, N.A. and Pennsylvania Commerce Bancorp, Inc. (the "Commerce Defendants"), by filing an Amended Complaint on or about January 5, 2006, adding Commerce Defendants to an existing action against Defendant, Anthony D. Notarfrancesco ("Defendant Notarfrancesco"), docket no. 05- 3555. 2. An Acceptance of Service for the Amended Complaint, executed by Commerce Defendants' counsel, was filed on or about January 30, 2006. 3. The Amended Complaint, served upon Commerce Defendants was not endorsed with a Notice to Defend. A true and correct copy of the Amended Complaint is marked as Exhibit "A," attached hereto and made a part hereof. 4. The Commerce Defendants' Preliminary Objections are directed to allegations contained in Count II of the Amended Complaint and to Plaintiffs claims for damages in the amount of $7,910.00, plus interest, costs, and claims for "punitive damages." Preliminary Obiections in the Nature of a Demurrer for Lel!:al Insufficiency of a Pleadinl!: Pursuant to Pa.R.C.P. No. l028(a)(4) and/or Lack of Specificity of the Pleadinl!: 5. Paragraphs I through 4 above are incorporated herein by reference as if fully set forth at length. 6. Count II of Plaintiffs Amended Complaint asserts a violation of the Pennsylvania Uniform Commercial Code S3420(A), 13 Pa.C.S.A. s3420(a), for conversion of an instrument by Commerce Defendants. See, Exhibit "A," Count II. 7. Plaintiff alleges economic losses as a result of allegedly converted "joint income tax return checks," (hereinafter "Refund Checks"), in the amount of$7,910.00. 8. Plaintiffs prayer for relief following Count II requests judgment in the amount of$7,910.00, plus interest and costs. . .." See, Exhibit "A," Count II. -2- 9. However, Plaintiff does not allege the extent of her interest, if any, in the allegedly converted Refund Checks. 10. The Pennsylvania Commercial Code, 13 Pa.C.S.A. ~3420(b) provides that recovery by a plaintiff on a converted instrument may not exceed the plaintiffs interest in that instrument. II. When the Commercial Code provides a comprehensive remedy for parties in a transaction, common law causes of action are barred. See, 13 Pa.C.S.A. ~ 1103. 12. Since Plaintiff has not alleged an interest in the allegedly converted Refund Checks, she is not entitled to any recovery from Commerce Defendants under Section 3420(b) of the Commercial Code. 13. Alternatively, even if it can be assumed Plaintiff had an interest in the Refund Checks from the facts as pled in the Amended Complaint, Plaintiff failed to specifY the extent of her interest in these checks, and the Amended Complaint therefore lacks sufficient specificity to allow Commerce Defendants to properly respond to the allegations. 14. Commerce Defendants' demurrer should be sustained and Count II of the Amended Complaint should be dismissed with prejudice, as Plaintiff has not alleged an interest in the allegedly converted joint income tax returns, and has thus failed to state a cause of action on which relief can be granted, under 13 Pa.C.S.A. ~3420(b). WHEREFORE, the Commerce Defendants respectfully request This Honorable Court sustain their demurrer and enter an Order dismissing, with prejudice Count II of -3- Plaintiff s Amended Complaint. In the alternative, if it can be assumed that Plaintiff had an interest in the Refund Checks, Plaintiff should be directed to file a Second Amended Complaint that specifically identifies the extent of Plaintiffs interest in the Refund Checks. Preliminary Obiections in the Nature of a Motion to Strike Pursuant to Pa.R.C.P. No. 1028(a)(4) 15. Paragraphs I through 14 above are incorporated herein by reference as if fully set forth at length. 16. In Plaintiffs prayer for relief following Count II of the Amended Complaint, the Plaintiff requests "punitive damages." See, Exhibit "A." 17. Under Pennsylvania law, the measure of liability for conversion on an instrument is presumed to be the amount payable on the instrument and, in any event, recovery may not exceed the amount of the Plaintiffs interest in the instrument. See, 13 Pa.C.S.A. ~3420(b). 18. When the Commercial Code provides a comprehensive remedy for parties in a transaction, common law causes of action are barred, and Plaintiff cannot recover common law damages. See, 13 Pa.C.S.A. ~1103. 19. Therefore, Plaintiffs request for "punitive damages" contained in the prayer for relief after Count II of the Amended Complaint fails to conform to law and should be stricken. -4- WHEREFORE, the Commerce Defendants respectfully request This Honorable Court enter an Order striking the Amended Complaint for failure to comply with rule of law. In the alternative, Commerce Defendants request that this Court enter an Order striking Plaintiffs claims for "punitive damages" in the prayer for relief after Count II of the Amended Complaint. Preliminarv Obiections in the Nature of a Motion to Strike 20. Paragraphs I through 19 above are incorporated herein by reference as if fully set forth at length. 21. In the prayer for relief after Count II of the Amended Complaint, the Plaintiff requests "costs." See, Exhibit "A." 22. Under Pennsylvania law, parties to litigation are responsible for their own costs unless otherwise provided by agreement of the parties, some other recognized exception or statutory authority. 23. Here, there is no agreement of the parties, recognized exception or statutory authority allowing for costs to be awarded to Plaintiff, and Plaintiffs requests for "costs" contained in the prayer for relief in Count II of the Amended Complaint fails to conform to law. 24. Moreover, where, as here, the Commercial Code provides a comprehensive remedy for parties in a transaction, common law causes of action are barred, and Plaintiff cannot recover common law damages. See, 13 Pa.C.S.A. ~1103. -5- WHEREFORE, the Commerce Defendants respectfully request This Honorable Court enter an Order striking the Amended Complaint for failure to comply with rule of law. In the alternative, Commerce Defendants request that this Court enter an Order striking Plaintiffs claims for "costs" in the prayer for relief after Count II of the Amended Complaint. Preliminarv Obiections in the Nature of a Demurrer for Lel!al Insufficiencv of a Pleadinl! Pursuant to Pa.R.C.P. No. 1028(A)(4) and/or for Insufficient Specificity in a Pleadinl! Pursuant to Pa.R.C.P. No. 1028(a)(3) 25. Paragraphs I through 24 above are incorporated herein by reference as if fully set forth at length. 26. In Count II of the Amended Complaint, Plaintiff alleges that Commerce Defendants violated 13 Pa.C.S.A. ~3420(a) by converting "at least one" instrument by a person not entitled to enforce the instrument or receive payment. See Exhibit "A" -, , Count II. 27. Plaintiff alleges that Defendant Notarfrancesco received "several" Refund Checks from tax return filings, which checks "totaled approximately $7,910.00." See, Exhibit "A," Count II. 28. Plaintiff claims damages for the total amount of all the Refund Checks received by Defendant Notarfrancesco as a result of the tax return filings. 29. However, Plaintiff does not specify the actual number of Refund Checks allegedly converted by Commerce Defendants, alleging only that "[a]t least one" Refund -6- Check was deposited into an account held by Defendant Notarfrancesco alone upon an unauthorized signature for Plaintiff. See, Exhibit "A," Paragraphs 10 through 12. 30. The Commerce Defendants are unable to determine from Plaintiffs Amended Complaint which of the several Refund Checks, if any, were allegedly converted and the amount of each allegedly converted Refund Checks. 31. Furthermore, Plaintiff claims damages against Commerce Defendants in the total amount of $7,910.00; or the total of all of the Refund Checks allegedly converted by Defendant Notarfrancesco, yet Plaintiff has not specifically alleged that more than one Refund Check was negotiated or deposited with the Commerce Defendants. 32. Under Pennsylvania law, "[t]he material facts on which a cause of action or defense is based shall be stated in a concise and summary form. Pa.R.C.P. No. 1019(a). 33. However, as detailed below, Plaintiffs allegations in the Amended Complaint lack the factual specificity required under Pennsylvania law. 34. For instance, in paragraphs 10 and 12 of Plaintiffs Complaint, Plaintiff avers as follows: * * * "Plaintiff saw at least two checks; however, the checks subsequently disappeared from the home. . . . * * * At least one of the joint income tax return checks was deposited into an account that Defendant Notarfrancesco held with Defendant Commerce, which account was in Defendant Notarfrancesco's name alone. Such check was deposited with an authorized signature for Plaintiff." -7- See, Exhibit "A," paragraphs 10, 12 (emphasis added). 35. The above-cited allegations do not contain the factual specificity required under Pennsylvania law, nor are they supported by factual allegations elsewhere in the Complaint. See, Exhibit "A." 36. The Commerce Defendants are prejudiced by the above-quoted allegations and the lack of specificity in Plaintiffs Complaint because Plaintiffs Complaint does not fully inform said Commerce Defendants of the claims against them such that the Commerce Defendants can adequately prepare a defense thereto. WHEREFORE, the Commerce Defendants respectfully request that This Honorable Court sustain their demurrer and enter an Order dismissing, with prejudice, Plaintiffs claims that Commerce Defendants violated 13 Pa.C.S.A. ~3420. In the alternative, the Plaintiff should be directed to file a Second Amended Complaint that identifies precisely which Refund Checks and in what amounts, were converted by the Commerce Defendants. -8- Respectfully submitted, METTE, EVANS & WOODSIDE Dated: February 17,2006 ~0~ John F. Yaninek, Esquire Sup. Ct. J.D. No. 55741 Ambrose W. Heinz, Esquire Sup. Ct. J.D. No. 91021 340 I North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax Attorneys for Defendants, Commerce Bank/Harrisburg, N.A. and Pennsylvania Commerce Bancorp, Inc. -9- CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Catherine A. Boyle, Esquire Kelly Smith, Esquire Meyers, Desfor, Saltzgiver & Boyle 410 N. 2nd Street P. O. Box 1062 Harrisburg, P A 17108 Attorney for Plaintiff Charles Rector, Esquire Law Office of Charles Rector, Esquire, P.C. 1104 Fernwood Avenue, Suite 203 Camp Hill, PA 17011-6912 Attorney for Anthony D. Notarfrancesco Dated: February 17,2006 ~/) John F. Yanmek, ~squire Sup. Ct. J.D. No. 55741 Ambrose W. Heinz, Esquire Sup. Ct. J.D. No. 91021 3401 North Front Street P. O. Box 5950 Harrisburg,PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax Attorneys for Defendants, Commerce Bank/Harrisburg, N.A. and Pennsylvania Commerce Bancorp, Inc. -10- 442227vl ( -.,., , t.";) u' ~, :"1'1 .-\ '., --<" ~,o..-..:.. ELIZABETH NOT ARFRANCESCO, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 05-3555 Civil Term ANTHONY D. NOTARFRANCESCO, (An Individual) and COMMERCE BANK and PENNSYLVANIA COMMERCE BAN CORP, INC., (A corporation), CIVIL ACTION-LAW Defendants. JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF DEFENDANT, ANTHONY D. NOTARFRANCESCO, TO PLAINTIFF'S AMENDED COMPLAINT AND NOW, comes the Defendant, Anthony D. Notarfrancesco, by and through his attorney Charles Rector, Esquire, and files the within Preliminary Objections to Plaintiffs Amended Complaint: 1. Moveant is Anthony D. Notarfrancesco ("Husband"), Defendant in the above- captioned action. 2. Respondent is Elizabeth Notafrancesco ("Wife"), Plaintiff in the above-captioned action. 3. A divorce action is pending at docket number 05-2937 in the Court of Common Pleas of Cumberland County. 4. Defendant Notarfrancesco directs his Preliminary Objections to Count I of Plaintiffs Amended Complaint and to Plaintiffs claims for damages. PreIiminarv Obiection in the Nature of a Demurrer for Leeal Insufficiencv of Plaintiff's Amended Complaint Pursuant to Pa.R.c.P. 1028(a)(4) in the Nature of a Demurrer/Motion to Strike and for Insufficient Specificitv of a Pleadine Pursuant to Pa.R.C.P. 1028(a)(3) 5. Paragraphs I through 4 above are incorporated herein by reference as if set forth in full. 6. Plaintiff has based her claim entirely upon the assertion that Defendant Notarfrancesco's possession ofrefund checks was wrongful because he signed the Plaintiffs name without her authorization. Nevertheless, Plaintiff has failed to attach these documents to her Amended Complaint. 7. Pennsylvania Rule of Civil Procedure IOI9(i) mandates the attachment of certain documents to a pleading and reads in pertinent part that: (i) When any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance in writing. 8. Plaintiff has failed to attach to her Amended Complaint any of the checks which she alleges Defendant Notarfrancesco endorsed and converted to his own use and has further failed to set forth reasons that such writings are not accessible to her. 9. Defendant Notarfrancesco is prejudiced by the lack of specificity contained in Plaintiffs Amended Complaint and is unable to properly respond to the claim made against him in the absence of the writings he is alleged to have signed. WHEREFORE, Defendant, Anthony D. Notarfrancesco, respectfully requests this Honorable Court to sustain this demurrer and enter an order dismissing with prejudice Count I of Plaintiffs Amended Complaint. Preliminary Obiection in the form of a Demurrer/Motion to Strike Pursuant to Pa.R.C.P.I028(a)(4) 10. Paragraphs 1 through 9 above are incorporated herein by reference as if set forth in full. II. The Plaintiffs claim for punitive damages is factually and legally insufficient pursuant to Pcnnsylvania Rule of Civil Procedure l028(a)(3) and (4). 12. Plaintiffs general and conclusory allegations in pursuance of punitive damages include only that Defendant "acted with malice, indifference and/or recklessness in converting the joint tax return checks." 13. This allegation advanced in support of punitive damages is both insufficiently specific and legally insufficient to support a claim for punitive damages inasmuch as Plaintiff merely avers that Defendant Notafrancensco's alleged conduct was "unauthorized." 14. Plaintiff has pleaded no facts which support a claim for the recovery of punitive damages. WHEREFORE, Defendant Notarfrancesco respectfully requests this Honorable Court to enter an Order striking Plaintiffs claims for punitive damages in Count 1 of the Amended Complaint. ~ arles Rec r, 1104 Fern ood venue, Ste. 203 Camp Hill, PA 17011-6912 (717) 761-8101 Attorney for Defendant, Anthony D. Notarfrancesco Date: 3/"/01. CERTIFICATE OF SERVICE I, Charles Rector, Esquire, do hereby certify that on the 6th day of March, 2006, I caused a true and correct copy of the within Defendant's Preliminary Objections to be served upon the following counsel of record by depositing same in first class, United States mail, postage paid, in Camp Hill, PelIDsylvania: Catherine A. Boyle, Esquire Meyers, Deslor, Saltzgiver & Boyle 410 N Second Street P. 0. Box 1062 Harrisburg, PA 17108 Darren J Holst, Esquire & Donald T Kissinger, Esquire Howell Kissinger Conley & Holst 130 Walnut Street P. O. Box 810 Harrisburg. PA 17108-0810 Ambrose W Heinz, Esquire Melle. Evans & Woodside 3401 N FrontStreet/P. 0. Box 5950 Harrisburg, PA 17110-0950 By: Date: 1~~b .~ \ " u: .--- . \ , , ELIZABETH NOT ARFRANCESCO, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : No.05-3555 Civil Term ANTHONY D. NOTARFRANCESCO, (An Individual) and COMMERCE BANK, PENNSYLVANIA COMMERCE BANCORP, INC. AND COMMERCE BANCORP, INC., (Corporations) : CIVIL ACTION - LAW : JURY TRIAL DEMANDED Defendants. PRAECIPE TO DISCONTINUE TO THE OFFICE OF THE PROTHONOTARY: Kindly withdraw without prejudice the Complaint in the above-referenced matter filed by the Plaintiff on or aboutJuly 14, 2005. Respectfully submitted, / Catherine A. Boyle, Esquire Meyers, Desfor, Saltzgiver & Boyle Attorney l.D. No. 76328 410 North Second Street P.O. Box 1062 Harrisburg, PA 17108 (717) 236-9428 Attorney for Plaintiff MEYERS. DESFOR, SALTZGlVER .. BOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 . HARRISBURG. PA 17108 (717) 236-9428 . FAX (717) 236.2817 , " ELIZABETH NOT ARFRANCESCO, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : No.05-3555 Civil Term ANTHONY D. NOTARFRANCESCO, (An Individual) and COMMERCE BANK, PENNSYLVANIA COMMERCE BANCORP, INC. AND COMMERCE BANCORP, INC., (Corporations) : CIVIL ACTION - LAW : JURY TRIAL DEMANDED Defendants. CERTIFICATE OF SERVICE I hereby certify that on this Ie ~ day of ~ ' 2006, a copy of the attached Praecipe to Discontinue was sent VIA Regular U.S. Mail, postage pre- paid, to: Anthony Notarfrancesco c/o Charles Rector, Esquire LAW OFFICES OF CHARLES RECTOR, ESQUIRE, P.C. 1104 Femwood Avenue, Suite 203 Camp Hill, PA 17011-6912 Commerce Bank and Pennsylvania Commerce Bancorp, Inc. c/o Ambrose Heinz, Esquire METTE, EVANS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 / Catherine A. Boyle, Esquire MEYERS. DESFDR, SALTZGIVER " BOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236.9428 . FAX (717) 236.2817 0 ,...., (J c::l c.: \:.~:;::l '.0 0" ~~ (~- .-\ :J: .." (;::~ fnf: __,~.rn I -~J9 CO -:j\c~ .- ~T; -<..1 Ci. :): -.,..,. c , ~?t r\'l (..~ - JO :..:; .. t l ELIZABETH NOT ARFRANCESCO, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : No.05-3555 Civil Term ANTHONY D. NOTARFRANCESCO, (An Individual) and COMMERCE BANK, PENNSYLVANIA COMMERCE BANCORP, INC. AND COMMERCE BANCORP, INC., (Corporations) : CIVIL ACTION - LAW : JURY TRIAL DEMANDED Defendants. AMENDED PRAECIPE TO DISCONTINUE TO THE OFFICE OF THE PROTHONOTARY: Kindly mark this action as settled, satisfied and discontinued with prejudice. Respectfully submitted, -c/ Catherine A. Boyle, Esquire Meyers, Desfor, Saltzgiver & Boyle Attorney LD. No. 76328 410 North Second Street P.O. Box 1062 Harrisburg, PA 17108 (717) 236-9428 Attorney for Plaintiff MEYERS. DESFOR, SALTZGlVER & BOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 . HARRISBURG, PA 17108 (717) 236-9428 . FAX (717) 236-2817 r " ELIZABETH NOT ARFRANCESCO, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : No.05-3555 Civil Term ANTHONY D. NOTARFRANCESCO, (An Individual) and COMMERCE BANK, PENNSYLVANIA COMMERCE BANCORP, INC. AND COMMERCE BANCORP, INC., (Corporations) : CIVIL ACTION - LAW : JURY TRIAL DEMANDED Defendants. CERTIFICATE OF SERVICE I hereby certify that on this 1~ day of --il~ ,2006, a copy of the attached Amended Praecipe to Discontinue was sent VIA Regular U.S. Mail, postage pre-paid, to: Anthony Notarfrancesco c/o Charles Rector, Esquire LAW OFFICES OF CHARLES RECTOR, ESQUIRE, P.C. 1104 Femwood Avenue, Suite 203 Camp Hill,PA 17011-6912 Commerce Bank and Pennsylvania Commerce Bancorp, Inc. c/o Ambrose Heinz, Esquire METTE, EVANS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, P A 17110-0950 MEYERS, DESFOR, SALTZGIVER & BOYLE 410 NORTH SECOND STREET . P.O. BOX 1062 . HARRISBURG. PA 17108 (717) 238.9428 . FAX (717) 238.2817 o c: [i- 1 l"'-~Cl CC, (.:;~ t::.......... o -n -l I-n nlp 2] C- ~~:~ I <D ~ ~~ f)? N 0:>