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HomeMy WebLinkAbout05-5767 II .. DENNIS A. BUCK, Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-S1t. 7 CIVIL ACTION BARRY WHARTON, Defendant CIVIL ACTION-LAW 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 an attorney and filing in writing with the court, your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff, You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 I, I DENNIS A. BUCK Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005- 57(" 7 CIVIL ACTION CIVIL ACTION-LAW V. BARRY WHARTON, Defendant COMPLAINT AND NOW, comes Dennis A. Buck, by and through his attorney, Michael A. Scherer, Esquire, and respectfully represents as follows: 1. The plaintiff is Dennis A. Buck (hereinafter referred to as "Buck"), an adult individual residing at 4635 Mountain View Road, Harrisburg, Dauphin County, Pennsylvania 17110-2833. 2. The defendant is Barry Wharton (hereinafter referred to as "Wharton"), an adult individual residing at 1529 Sheepford Road, Mechanicsburg, Cumberland County, Pennsylvania 17055-4831. 3. Since approximately 1990, Buck has had an interest in a food vending business known as "Bucky's." 4, In 2001, Buck owned "Bucky's" as a sole proprietorship. 5. "Bucky's" is a mobile food vending business that annually attends approximately fifty (50) large outdoor gatherings including fairs, festivals, auto shows, art shows and other events occurring throughout the warm weather season and "Bucky's" offers food for sale from tents and mobile concession trailers, :1 6. As a condition of doing business at the various events, Bucky's pays either flat fees or sales commissions to the event or to the promoter of the event. 7. In 2001, Wharton became aware of Buck's desire to sell "Bucky's" and Wharton expressed an interest in purchasing "Bucky's", 8, The business assets of "Bucky's" which were offered for sale in 2001 were two (2) cube vans, three (3) concession trailers and a variety of supplies, equipment, operating cash and the business goodwill associated with "Bucky's." 9. In November, 2001, the parties reached an oral agreement whereby Buck would sell to Wharton the business assets of "Bucky's" in paragraph 8 above for the sum of Ninety Thousand Dollars ($90,000,00), payable over three (3) to four (4) year period, without interest. 1 O. Specifically, the parties agreed that Wharton would take control of the business beginning in January, 2002 and make an initial payment of Five Thousand Dollars and 00/100 ($5,000.00) followed by monthly payments of One Thousand Dollars and 00/100 ($1,000,00). Additionally, it was agreed that Wharton would pay Buck an additional Ten Thousand Dollars and 00/100 ($10,000,00) when annual gross sales reached One Hundred Thousand Dollars and 00/100 ($100,000.00). 11, Wharton worked for Buck in connection with the operation of Bucky's during the conclusion of the 2001 season in order for Wharton to familiarize himself with the operation of "Bucky's", 12, "Bucky's" was operated by Buck until December 31, 2001. i\ !,i I 13, In 2002, the business assets of "Bucky's" were transferred to Wharton's control [I! and Buck agreed to provide, at no additional cost to Wharton, assistance with employee I training, scheduling, purchasing, onsite event assistance, record keeping, recipes, equipment maintenance and act as a liaison with the various event promoters relative to the sale of "Bucky's" to Wharton for a period of one (1) year. 14. During the 2002 season, Buck provided Wharton the assistance as set forth in the previous paragraph hereof. 15. In 2002, Wharton hired employees, approved the scheduling of events, monitored record keeping, conducted purchasing and associated matters regarding the operation of "Bucky's". 16. In 2002, Wharton collected and retained all of the profits of "Bucky's". 17, During the 2002 season, Wharton did not make any payments towards the purchase price to Buck and however Wharton reaffirmed the oral agreement and stated that he would begin making payments for the purchase of the business assets of "Bucky's" in January, 2003. 18. During the 2003 season, Wharton took total control over the business assets of "Bucky's" and assumed total control over the operation of "Bucky's" including negotiations with the persons in charge of the various outdoor events and/or the event promoters. 19. During the 2003 season, Wharton again failed to make any payments to Buck for the purchase of "Bucky's". 20. On or about October 1, 2003, Buck repossessed all of the available equipment from Wharton relative to "Bucky's" and Buck thereafter notified all of the event promoters that Buck would again be operating "Bucky's" and that they should deal with him. I' ,I . I COUNT I II BREACH OF CONTRACT I I 21. Paragraphs one through twenty above are incorporated herein. 22, Wharton made an oral agreement with Buck to purchase "Bucky's" in or about November, 2001, 23, In 2002, Wharton was to have paid Buck $27,000.00 relative to the purchase of the business assets of "Bucky's", but failed to do so. 24, In 2003, Wharton was to have paid Buck $19,000.00 relative to the purchase of the business assets of Bucky's, but failed to do so. 25. Buck, at all times relevant hereto, provided the business assets of "Bucky's" to Wharton and Buck otherwise completed his obligations under the oral agreement with Wharton relative to his purchase of "Bucky's," 26. At all times relative hereto, Wharton was in charge of the operation of "Bucky's" during all of 2002 and until October 1, 2003, and Wharton kept all of the profits from the operation of "Bucky's" until October 1, 2003. 27. As a result of Wharton's poor operation of "Bucky's", Buck was advised that "Bucky's" would not be permitted to operate at the Tuckertown, Funfest and Boalsburg events, causing Bucky's to lose revenues in the amount of $15,000.00. 28. Buck paid registration fees, automobile insurance, event registrations, satisfactions of commissions, truck repairs and Wharton took money from the operating accounts which he did not later return to Buck, all of which totals $10,023.19. WHEREFORE, Buck respectfully requests this honorable Court enter judgment in his favor and against Wharton in the amount of $71 ,023,19, plus interest and costs of suit. II COUNT II UNJUST ENRICHMENT/QUANTUM MARROIT 29. Paragraphs one through twenty-eight above are incorporated herein. 30, Buck conferred a benefit on Wharton when Buck delivered the business assets of "Bucky's" to Wharton. 31. Wharton operated "Bucky's" for two years and collected the profits from "Bucky's" for that period of time without paying Buck therefore. 32. Wharton would be unjustly enriched if he were permitted to keep the proceeds of the operation of "Bucky's" during years 2002 and 2003. WHEREFORE, Buck demands judgment be entered in his favor and against Wharton in the sum of $71,023.19. Respectfully submitted, O'BRIEN, BARIC & SCHERER II II I ?f/0A/YL- Michael A. Scherer, Esquire I.D. # 61974 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Attorney for Plaintiff mas\GenLit\Buck\complaint II . ..; DENNIS A. BUCK Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2005- CIVIL ACTION BARRY WHARTON, Defendant CIVIL ACTION-LAW VERIFICATION The statements in the foregoing Complaint are based upon information which has been assembled by my attorney in this litigation. The language of the statements are not my own. I have read the statements; and to the extent that they are based upon information which I have given to my counsel, they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. ~ 4904 relating to unsworn falsifications to authorities. DATE: September ~y, 2005 ~. J~PU /' DENNIS A. BUCK -&,. (") r-' 0 () <:~:, l{ (;; C;~l -..-1 A) a' 0. , -;;c: .-1 't -':;\' x~B 1l lrt 1-"--' c:: -" -. n1f;:' I ~?l \2; -- V( s:- Co) ,L, ""- -~ ~' Vi c5 C> \) .,__ r, -ry '[':-;:;,:U W ::;c, ~ ..() ~ (:2 w ::,)n-\ ~ U1 :':r:~ U1 ~;J -~ w -< E ~ SHERIFF'S RETURN - NOT SERVED CASE NO: 2005-05767 P COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND BUCK DENNIS A VS WHARTON BARRY R. Thomas Kline Sheriff , who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named DEFENDANT / to wit: WHARTON BARRY but was unable to locate Him in his bailiwick. He therefore returns the COMPLAINT & NOTICE NOT SERVED , as to the within named DEFENDANT , WHARTON BARRY 1529 SHEEPFORD ROAD MECHANICSBURG, PA 17055 SERVICE STOPPED PER INSTRUCTION FROM ATTORNEY. Sheriff's Costs: Docketing Service Affidavit Surcharge 18.00 .00 .00 10.00 .00 28.00 So answers:---:-..o , , ,./ " . .,.-" r,f~<---c;.;2"~/ R. Thomas Kline Sheriff of Cumberland County OBRIEN BARIC SCHERER 11/14/2005 Sworn and subscribed to before me I (/l~ this , j day of /j>V{M\:xr )D()'~ A.D. Prothonotary 'ii ~ DENNIS A. BUCK, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO, 2005-5767 CIVIL ACTION CIVIL ACTION-LAW V. BARRY WHARTON, Defendant PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Kindly mark the above-captioned action as having be,en settled and discontinued with prejudice. Respectfully submitted, O'BRIEN, BARIC & SCHERER Date: Januarv 12, 2006 lIJ-rltli- Michael A. Scherer, Esquire /.0, # 61974 19 West South Street Carlisle, PA 17013 (717) 249-68'73 Attorney for Plaintiff mas.dir/genlitlbuckldiscontinue,pra ... CERTIFICATE OF SERVICE I hereby certify that on January 12, 2006, I, Jennifer S. Lindsay, secretary to Michael A. Scherer, Esquire, did serve a copy of the Praecipe To Discontinue, by first class U,S. mail, postage prepaid, to the party listed below, as follows: Bruce R. Spicer, Esquire McNees, Wallace & Nurick, LLC 100 Pine Street Harrisburg, Pennsylvania 1710'1 ':'Yl '-- .,....~ :'\'\ t".,) (-, c:;