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HomeMy WebLinkAbout02-1582FINEMAN & BACH, P.C. BY: JUNE J. ESSIS, ESQUIRE LD. No. 54183 BY: EMII,Y L. KAPLAN, ESQUIRE I.D. No. 87605 1608 Walnut Street, 19m Floor Philadelphia, PA 19103 (215) 893-9300 Attorneys for the Plaintiff Essis and Sons, Inc. ESSIS AND SONS, INC. 6220 Carlisle Pike Mechanicsburg, Pennsylvania 17050 PLAINTIFF V. STEVEN GOFF AND TINA GOFF, H/W 235 Fickes Road DiHsburg, Pennsylvania 17019 DEFENDANTS COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. NOTICE YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN TH~ FOLLOWING PAGES, YOU MUST TAKE ACFION WITHIN TWENTY (20) DAYS AFFER 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 COMPLA/NT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF, YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE~ GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND BAR ASSOCIATION Two Liberty Avenue ~ PA 1701;} 717-249~3166 FINEMAN & BACH, P.C. BY: JUNE J. ESSIS, ESQUIRE I.D. NO. 54183 BY: EMILY L. KAPLAN, ESQUIRE I.D. NO. 87605 1608 Walnut Street, 19th Floor Philadelphia, PA 19103 (215) 893-9300 Attorneys for the Plaintiff Essis and Sons, Inc. ESSIS AND SONS, INC. 6220 Carlisle Pike Mechanicsburg, Pennsylvania 17050 PLAINTIFF v. STEVEN GOFFAND TINA GOFF, H/W 235 Fickes Road Dillsburg, Pennsylvania 17019 DEFENDANTS COMPLAINT COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Essis and Sons, Inc. (hereinafter referred to as "Plaintiff Essis") brings this action against Steven Goff and Tina Goff (hereinafter referred to as "Defendants") to recover damages arising from Defendants' breach of contract, unjust enrichment and promissory estoppel. A true and correct copy of the contract entered into by Essis and Defendants (hereinafter referred to as the "Contract") is attached hereto as Exhibit 2. Plaintiff Essis is a Pennsylvania corporation, with a principal place of business at 6220 Carlisle Pike, Mechanicsburg, Pennsylvania 17050. 3. Defendants are individuals residing at 235 Fickes Road, Dillsburg, Pennsylvania 17019. FACTS 4. Plaintiff Essis incorporates by reference paragraphs 1 through 3 above as if fully set forth herein at length. 5. On or about January 19, 2001, Plaintiff Essis and Defendants entered into a Contract in which Plaintiff Essis agreed to sell and install Eterna hardwood flooring and Defendants agreed to pay $18,579.00. 6. Defendants paid Plaintiff Essis $3,715.00 as a down payment on or about January 19, 2001. 7. Pursuant to the Contract, Plaintiff Essis installed Eterna hardwood flooring in Defendants' home on February 10, 12 and 13, 2001. 8. The Contract between Plaintiff Essis and Defendants describes the services provided, the charges associated therewith, and the date payment was due. See Exhibit "A" 9. Plaintiff Essis has made demands on Defendants for payment of $14,864.00, the amount due on the account. 10. Despite the aforementioned demands, Defendants have refused to pay the sums due to Plaintiff Essis for the Eterna hardwood flooring and installation. COUNT I - BREACH OF CONTRACT 11. Plaintiff Essis incorporates by reference paragraphs 1 through 10 above as if fully set forth herein at length. 12. Defendants conduct constitutes a breach of their contractual obligations to Plaintiff Essis, pursuant to the Contract. 13. As a proximate cause of that breach, Plaintiff Essis has suffered damages. 2. 14. As a result of Defendants' breach, and as provided for in the contract, damages include $14,864.00, plus interest in the amount of eighteen percent annually, costs of suit and attorneys' commission of twenty percent. See Exhibit "A." WHEREFORE, Plaintiff Essis demands judgment in its favor and against Defendants Steven Goff and Tina Goff for a sum not in excess of $25,000.00, plus interest, attorneys' fees and costs, together with such other, further and different relief as this Court deems proper. COUNT II - UNJUST ENRICHMENT 15. Plaintiff Essis incorporates by reference paragraphs 1 through 14 above as if fully set forth herein at length. 16. Plaintiff Essis has conferred, and Defendants have received the benefit of Plaintiff Essis's Eterna hardwood flooring and installation, but have failed to pay, as promised, for the benefit they have received. 17. Defendants have thus been unjustly enriched as a result of their wrongful refusal to pay for the product and services rendered to them by Plaintiff Essis; and it would be inequitable for Defendants to receive and retain that benefit without payment. 3. 18. AS a result of Defendants' unjust enrichment, and as provided for in the contract, damages include $14,864.00, plus interest in the amount of eighteen percent annually, costs of suit and attorneys' commission of twenty percent. See Exhibit "A." WHEREFORE, Plaintiff Essis demands judgment in its favor and against Defendants Steven Goff and Tina Goff for a sum not in excess of $25,000.00, plus interest, attorneys' fees and costs, together with such other, further and different relief as this Court deems proper. COUNT III PROMISSORY ESTOPPEL 19. Plaintiff Essis incorporates by reference paragraphs 1 through 18 above as if fully set forth herein at length. 20. In placing business with Defendants, Plaintiff Essis reasonably relied on Defendants' representation that they would pay Plaintiff Essis for the services they received. 21. Defendants should have reasonably foreseen that Plaintiff Essis would rely on their promise of payment. 22. Plaintiff Essis has been injured because, despite the promise of Defendants, upon which it relied, Defendants have not paid for the services they received. 4. 23. As a result of Defendants' breach, and as provided for in the contract, damages include $14,864.00, plus interest in the amount of eighteen percent annually, costs of suit and attorneys' commission of twenty percent. See Exhibit "A." WHEREFORE, Plaintiff Essis demands judgment in its favor and against Defendants Steven Goff and Tina Goff for a sum not in excess of. $25,000.00, plus interest, attorneys' fees and costs, together with such other, further and different relief as this Court deems proper. COUNT IV - SLANDER PER SE 24. Plaintiff Essis incorporates by reference paragraphs 1 through 23 above as if fully set forth herein at length. 25. Defendants made slanderous statements concerning Plaintiff Essis's business. 26. Those listeners who heard Defendants make defamatory statements regarding Plaintiff Essis, understood the defamatory nature of the statements and Defendants' intent to slander Plaintiff Essis. WHEREFORE, Plaintiff Essis demands judgment in its favor and against Defendants Steven Goff and Tina Goff for a sum not in excess of $25,000.00, plus interest, attorneys' fees and costs, together with such other, further and different relief as this Court deems proper. Respectfully submitted, BY: FINEMAN & BACH~ ~ K~aS'~n~S~Tre 19th Floor 1608 Walnut Street Philadelphia, PA 19103 (215) 893-9300 Attorneys for Plaintiff Essis and Sons, Inc. Z:~ELK~Essis and Sons v. Goff~Complaint.doc V RnqCAn, N veiification and ver~ that the facts stated in the foregoing Complaint are ~e ~ ~ to ~ ~ of my knowledge, information and belief.. I ~_~erstand th~ the statements herein are made_~,_~ect to the penalties of lg Pa. C.S. Section 4904, relating to nn.m~om fals~calion to authofi~. FINEMAN & BACH, P.C. BY: JUNE J. ESSIS, ESQUIRE LD. No. 54183 BY: EMILY L. KAPLAN, ESQUIRE LD. No. 87605 1608 Walnut Street, 19m Floor Philadelphia, PA 19103 (215) 893-9300 Attorneys for the Plaintiff Essis and Sons, Inc. ESSIS AND SONS, INC. 6220 Carlisle Pike Mechanicsburg, Pennsylvania 17050 PLAINTIFF STEVEN GOFF AND TINA GOFF, H/W 235 Fickes Road Diilsburg, Pennsylvania 17019 DEFENDANTS COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 02-1532 - Civil Term PRAECIPE TO REINSTATE COMPLAINT TO THE PROTHONOTARY: Kindly reinstate the Complaint filed in the above captioned matter. JUNEJ Attom~ CH, ?.C. ss s, for Plaintiffl/ ! ESSIS & SONS, INC., Plaintiff STEVEN GOFF and TINA GOFF, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : NO.: 02-1582 Civil Term : : Jury Thai Demanded To: Essis & Sons, Inc. NOTICE TO PLEAD YOU ARE HEREBY NOTII~IED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED pRELIMINARY OBJECTIONS WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. Date: May 16, 2002 REAGER .C. Thom[s O'~. Williams, Esquire Attorney I.D. No. 67987 2331 Market Street Camp Hill, PA 17011-464 Telephone: (717) 763-1383 Attorneys for Defendants ESSIS & SONS, INC., Plaintiff STEVEN GOFF and TINA GOFF, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : NO.: 02-1582 Civil Term : : Jury Trial Demanded DEFENDANTS' PRELIMINARY OBJECTIONS AND NOW, come Defendants, Steven Goff and Tina Goff, by and through their attorneys, Reager & Adler, P.C., and make the following preliminary objections to Plaintiff's Complaint in the above captioned case: I. MOTION TO STRIKE 1. Plaintiff commenced this action by the filing of a Complaint, which Complaint was served upon Defendants on April 29, 2002. 2. Plaintiff's Complaint contains four (4) counts entitled Breach of Contract, Unjust Enrichment, Promissory Estoppel and Slander Per Se. 3. Pennsylvania Rule of Civil Procedure 1019(i) states as follows: "When any claim or defense is based upon a writing, the pleader shall attach a copy of the writing..." 4. In its Complaint the Plaintiff alleged that the Defendants have breached a contract and has further stated that the contract is attached to the Complaint. 5. When Defendants were served with the Complaint no contract was attached to the Complaint. 6. Pennsylvania Rule of Civil Procedure 1028(a)(2) authorizes the assertion of a preliminary objection for the failure of a pleading to conform to law or rule of court. 7. Plaintiff's failure to attach the written contract upon which it has alleged it bases its claim is a violation of Pennsylvania Rule of Civil Procedure 1019(i) and, as such, the purported causes of action set forth in Plaintiff's Complaint, which are claimed to be based on a writing, must be stricken. WHEREFORE, Defendants, Steven and Tina Goff, respectfully request this Honorable Court to strike the Plaintiff's Complaint with prejudice. ~RRER 8. At Count Four of the PlainfiWs Complaint, Plaintiffpurports to set forth a cause of action for slander per se. 9. In support of this purported cause of action against the Defendants the Plaintiff has made only the following two (2) allegations: "Defendants made slanderous statements concerning Plaintiff Essis's business." (Paragraph 25 of Complaint) and "Those listeners who heard Defendants make defamatory statements regarding Plaintiff Essis, understood the defamatory nature of the statements and Defendants' intent to slander PlaintiffEssis."(Paragraph 26 of Complaint) 10. A Complaint for defamation must on its face, specifically identify what allegedly defamatory statements were made, by whom and to whom. Moses v. McWilliams. et al., 549 A.2d 950 (Pa. Super 1985), appeal denied, 558 A.2d 532 (Pa. 1989). 11. The Plaintiff's purported pleading of slander per se fails to allege any relevant factual basis and further fails to inform the Defendants as to what alleged wrongful statements they must defend. 12. The Plaintiff's Complaint fails to allege the alleged defamatory statement, to whom the alleged defamatory statement was made, when the defamatory statement was made and who made the defamatory statement. WHEREFORE, Defendants, Steven and Tina Goff, respectfully request this Honorable Court to dismiss Count Four of Plaintiff's Complaint with prejudice. III. IN THE ALTERNATIVE MOTION FOR MORE SPECIFIC PLEADING 13. Defendants incorporate herein the averments of paragraphs one (1) through twelve (12) above as if set forth fully herein. 14. In the event this Court overrules the Defendant's demurrer to Count Four of the Plaintiff's Complaint, the Defendant's contend that the Plaintiff has failed to sufficiently plead a cause of action for slander. WHEREFORE, Defendants, Steven and Tina Goff, respectfully request this Honorable Court to enter an Order requiring the Plaintiff's to plead County Four of their Complaint with specificity. VI. MOTION TO STRIKE 15. The Plaintiff in its Complaint makes a demand for attorneys' fees as part of its prayer for relief. 16. Although as noted above, the Plaintiff has failed to attach a copy of a written agreement under which it bases its claims in violation of Pennsylvania of Civil Procedure 1019(i), it is anticipated that the Plaintiff will allege that a written document dated January 19, 2001, signed by Defendant Tina Goff constitutes an agreement between the parties. 17. Without waiving any other defenses or objections with respect to the contract between the parties the document dated January 19, 2001, which was prepared by Essis & Sons, Inc. and bears the identifying number M03376 contains on the reverse side a confession of judgment provision. · - d COns~r · ~rda~r Trade practices he Pe~s~xau . ~ ,,~r method o~ co~v a ~8. T , _~ that ¢ ~s '~ · ~eut re~ated to .... txviii) states in peCmem v -t [o~ or ~ other aoc . ohs~er's or dec~tive act or pr~Uce m ~ ~ cons~er ~saction ~ch commn [ense to an actiOn." 6~t to ~se¢ a legal de . _ ~o¢ing to entitle ~e pl~mUff to ~ unlaw~l confession of ~ud~ent clause ~d should thus be stricken as illegal. pa~ of 19' The provision u are "c°nS~ert' as that'te~ is defined in the pe~sYlv~ 20. The Defendants ~d the tr~saction be~een the pres, ~d Cons~er protection LaW unfair Trade practice a cons~er ~sacfion. ' of this lawsuit, is which is the sub3ect · Goff respect~BY request tp°n°rable ~E~FO~' Defenders Steve Goff and Trna ~d dem~d er attomef ecs contimed cntiffs Cone to strike each ~d eve~ reference Kespect~BY submiCe~ Date: gay ~6, 2002 A¢omeTi.D. NO. 679 2331 M~ket s~eet C~P Hill, P~ ~0~ Telephone: ~ttomeys for Del VERIFICATION Date: May 14, 2002 We, Steve Goff and Tina Goff, verify the averments of the foregoing document are true and correct to our personal knowledge, information and belief. We understand that false state- ments herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unswom falsification to authorities. By: St~ve Goff - - CERTIFICATE OF SERVICE AND NOW, this 16~ day of May, 2002, I hereby verify that I have caused a true and correct copy of the foregoing Preliminary Objections to be placed in the U.S. mail, first class, postage prepaid and addressed as follows: June J. Essis, Esquire Emily L. Kaplan, Esquire 19th Floor 1608 Walnut Street Philadelphia, PA 19103 ESSIS AND SONS, INC. 6220 Carlisle Pike Mechanicsburg, Pennsylvania 17050 PLAINTIFF v. STEVEN GOFF AND TINA GOFF, H/W 235 Fickes Road Dillsburg, Pennsylvania 17019 DEFENDANTS ORDER COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 02-1582 Civil Term AND NOW this day of ,2002, it is hereby ORDERED and DECREED that Defendants' Preliminary Objections in the above captioned matter are hereby OVERRULED, and Defendants' Answer to Plaintiffs Complaint is due within 20 days o£the date of this ORDER or Defendants will suffer sanctions. By the Court: Jo FINEMAN & BACH, P.C. BY: JUNE J. ESSIS, ESQUIRE I.D. NO. 54183 BY: EMILY L. KAPLAN, ESQUIRE I.D. NO. 87605 1608 Walnut Street, 19th Floor Philadelphia, PA 19103 (215) 893-9300 Attorneys for the Plaintiff Essis and Sons, Inc. ESSIS AND SONS, INC. PLAINTIFF STEVEN GOFF AND TINA GOFF, H/W DEFENDANTS COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 02-1582 Civil Term 2. 3. required. 4. PLAINTIFF'S RESPONSE TO DEFENDANTS' PRELIMINARY OBJECTIONS I. RESPONSE TO MOTION TO STRIKE Admitted. Admitted. Denied. Paragraph 3 contains conclusions of law to which no response is Denied as stated. Plaintiff's Complaint is a document in writing which speaks for itself. Any and all characterization is hereby denied. 5. Denied as untrue. When Plaintiff filed the Complaint, a copy of the contract was attached as Exhibit "A". Presumably, Defendants were served with the Complaint with the required. 7. contract attached. Furthermore, Defendants were faxed a copy of the contract by Plaintiff when Plaintiff was served with Preliminary Objections. Moreover, Defendants have in their possession a copy of the contract, and make reference to specific provisions of the contract in paragraph 17 of Defendants' Preliminary Objections. Denied. Paragraph 6 contains conclusions of law to which no response is Denied. Paragraph 7 contains conclusions of law to which no response is required. By way of further answer, when Plaintiff filed the Complaint, a copy of the contract was attached as Exhibit "A". Presumably, Defendants were served with the Complaint with the contract attached. Furthermore, Defendants were faxed a copy of the contract by Plaintiff when Plaintiff was served with Preliminary Objections. Moreover, Defendants have in their possession a copy of the contract, and make reference to specific provisions of the contract in paragraph 17 of Defendants' Preliminary Objections. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter an Order overruling Defendants' Preliminary Objections. II. RESPONSE TO DEMURRER 8. Denied as stated. Plaintiffs Complaint is a document in writing which speaks for itself. Any and all characterization is hereby denied. 9. Denied as stated. Plaintiff's Complaint is a document in writing which speaks for itself. Any and all characterization is hereby denied. 10. Denied. The Complaint in a defamation action must generally allege: defamatory character of communication, publication of communication to third party, communication's referral to plaintiff, third party's understanding of communication's defamatory character, and injury. Petula v. Mellody, 588 A.2d 103 (Pa. Cmwlth. 1991). A communication which ascribes to another conduct, character, or a condition that would adversely affect his fitness for the proper conduct of his business, trade, or profession, is defamatory per se and plaintiff need not prove special damages. Pelagatti v. Cohen, 536 A.2d 1337, 370 Pa. Super. 422 (1987). Plaintiff has therefore sufficiently plead defamation per se by pleading that Defendants made slanderous statements concerning Plaintiff's business and that those listeners who heard Defendants make defamatory statements regarding Plaintiff understood the defamatory nature of the statements and Defendants' intent to slander Plaintiff. 11. Denied. The Complaint in a defamation action must generally allege: defamatory character of communication, publication of communication to third party, communication's referral to plaintiff, third party's understanding of communication's defamatory character, and injury. Petula v. Mellody, 588 A.2d 103 (Pa. Cmwlth. 1991). A communication which ascribes to another conduct, character, or a condition that would adversely affect his fitness for the proper conduct of his business, trade, or profession, is defamatory per se and plaintiff need not prove special damages. Pelagatti v. Cohen, 536 A.2d 1337, 370 Pa. Super. 422 (1987). Plaintiff has therefore sufficiently plead defamation per se by pleading that Defendants made slanderous statements concerning Plaintiff's business and that those listeners who heard Defendants make defamatory statements regarding Plaintiff understood the defamatory nature of the statements and Defendants' intent to slander Plaintiff. 12. Denied. The Complaint in a defamation action must generally allege: defamatory character of communication, publication of communication to third party, communication's referral to plaintiff, third party's understanding of communication's defamatory character, and injury. Petula v. Mellody, 588 A.2d 103 (Pa. Cmwlth. 1991). A communication which ascribes to another conduct, character, or a condition that would adversely affect his fitness for the proper conduct of his business, trade, or profession, is defamatory per se and plaintiff need not prove special damages. Pelagatti v. Cohen, 536 A.2d 1337, 370 Pa. Super. 422 (1987). Plaintiff has therefore sufficiently plead defamation per se by pleading that Defendants made slanderous statements concerning Plaintiff's business and that those listeners who heard Defendants make defamatory statements regarding Plaintiff understood the defamatory nature of the statements and Defendants' intent to slander Plaintiff. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter an Order overruling Defendants' Preliminary Objections. III. RESPONSE TO REQUEST FOR A MORE SPECIFIC PLEADING 13. Plaintiff incorporates herein the answers to paragraphs one through twelve as though fully set forth herein at length. 14. Denied. The Complaint in a defamation action must generally allege: defamatory character of communication, publication of communication to third party, communication's referral to plaintiff, third party's understanding of communication's defamatory character, and injury. Petula v. Mellod¥, 588 A.2d 103 (Pa. Cmwlth. 1991). A communication which ascribes to another conduct, character, or a condition that would adversely affect his fitness for the proper conduct of his business, trade, or profession, is defamatory per se and plaintiff need not prove special damages. Pelagatti v. Cohen, 536 A.2d 1337, 370 Pa. Super. 422 (1987). Plaintiff has therefore sufficiently plead defamation per se by pleading that Defendants made slanderous statements concerning Plaintiff's business and that those listeners who heard Defendants make defamatory statements regarding Plaintiff understood the defamatory nature of the statements and Defendants' intent to slander Plaintiff. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter an Order overruling Defendants' Preliminary Objections. IV. MOTION TO STRIKE 15. Denied as stated. Plaintiff's Complaint is a document in writing which speaks for itself. Any and ail characterization is hereby denied. 16. Denied as untrue. When Plaintiff filed the Complaint, a copy of the contract was attached as Exhibit "A". Presumably, Defendants were served with the Complaint with the contract attached. Furthem~ore, Defendants were faxed a copy of the contract by Plaintiff when Plaimiff was served with Preliminary Objections. Moreover, Defendants have in their possession a copy of the contract, and make reference to specific provisions of the contract in paragraph 17 of Defendants' Preliminary Objections. Admitted. Denied. Paragraph 18 contains conclusions of law to which no response is 17. 18. required. 19. Denied. Plaintiff has not brought an action for confession of judgment. Plaintiff has suffered damages including $14,864.00, plus interest in the amount of eighteen percent annually, costs of suit and attorneys' commission of twenty percent, and has brought claims for Breach of Contract, Unjust Enrichment, Promissory Estoppel and Slander Per Se to recover those damages. Defendants have cited no authority to support the proposition that any of these actions are improper or illegal. 20. Denied. Paragraph 20 contains conclusions of law to which no response is required. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter an Order overruling Defendants' Preliminary Objections and to Order Defendants to file an Answer to Plaintiff's Complaint or suffer sanctions. Respectfully submitted, Dated: ~-/,~/?/OQ FINEMAN & BACH, P.C. BY: ~ Emily L. Kaplan, Esquire 19th Floor 1608 Walnut Street Philadelphia, PA 19103 (215) 893-9300 Attorneys for Plaintiff Essis and Sons, Inc. Z:\ELK\Essis and Sons v. GoffiResponse to POs.doc FINEMAN & BACH, P.C. BY: JUNE J. ESSIS, ESQUIRE I.D. No. 54183 BY: EMILY L. KAPLAN, ESQUIRE I.D. NO. 87605 1608 Walnut Street, 19th Floor Philadelphia, PA 19103 (215) 893 -9300 Attorneys for the Plaintiff Essis and Sons, Inc. ESSIS AND SONS, INC. PLAINTIFF Ve STEVEN GOFF AND TINA GOFF, H/W DEFENDANTS COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 02-1582 Civil Tex~ MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S RESPONSE TO DEFENDANTS' PRELIMINARY OBJECTIONS I. INTRODUCTION Essis and Sons, Inc. (hereinafter referred to as "Plaintiff') brought this action against Steven Goff and Tina Goff (hereinafter referred to as "Defendants") to recover damages arising from Defendants' breach of contract, unjust enrichment and promissory estoppel. Defendants have filed Preliminary Objections to Plaintiff's Complaint. II. LEGAL ARGUMENT A. Because Plaintiff attached a copy of the contract at issue to the Complaint, Defendants' Motion to Strike must be overruled. Defendants claim that they were served a Complaint without any contract attached. However, when Plaintiff filed the Complaint, a copy of the contract was attached as Exhibit "A". Presumably, Defendants were served with the Complaint with the contract attached. Furthermore, Defendants were faxed a copy of the contract by Plaintiff when Plaintiff was served with Preliminary Objections. Moreover, Defendants have in their possession a copy of the contract, and make reference to specific provisions of the contract in paragraph 17 of Defendants' Preliminary Objections. Therefore, Pennsylvania Rule of Civil Procedure 10190), which states, "When any claim or defense is based upon a writing, the pleader shall attach a copy of the writing..." does not bar any cause of action in Plaintiff's Complaint. Plaintiff is in compliance with Rule 10190). Therefore Defendants' Motion to Strike must be overruled. B. Because Plaintiff adequately plead a cause of action for defamation, Defendants' Demurrer and Motion for More Specific Pleading should be overruled. The Complaint in a defamation action must generally allege: defamatory character of communication, publication of communication to third party, communication's referral to plaintiff, third party's understanding of communication's defamatory character, and injury. Petula v. Mellody, 588 A.2d 103 (Pa. Cmwlth. 1991). A communication which ascribes to another conduct, character, or a condition that would adversely affect his fitness for the proper conduct of his business, trade, or profession, is defamatory per se and plaintiff need not prove special damages. Pelagatti v. Cohen, 536 A.2d 1337, 370 Pa. Super. 422 (1987). Plaintiff has therefore sufficiently plead defamation per se by pleading that Defendants made slanderous statements concerning Plaintiff's business and that those listeners who heard Defendants make defamatory statements regarding Plaintiff understood the defamatory nature of the statements and Defendants' intent to slander Plaintiff. Moreover, the District Court for the Eastern District of Pennsylvania has held that a defamation plaintiff does not have to plead precise defamatory statements, nor must she specifically name the person to who made the statements, and so long as the count provides sufficient notice to defendants, it is sufficient. Tuman v. Genesis Associates, 935 F.Supp. 1375 (E.D.Pa. 1996). Application of the rule of Tuman to the instant case means that Plaintiff has sufficiently plead a cause of action for defamation by pleading that Defendants made slanderous statements concerning PlaintiWs business and that those listeners who heard Defendants make defamatory statements regarding Plaintiff understood the defamatory nature of the statements and Defendants' intent to slander Plaintiff. For the aforementioned reasons, Defendants' Demurrer and Motion for More Specific Pleading should be overruled. C. Because PlalntiWs demand for attorneys' commission does not violate the Pennsylvania Unfair Trade Practices and Consumer Protection Law, Defendants' Motion to Strike Should be overruled. Plaintiff has suffered damages including $14,864.00, plus interest in the amount of eighteen percent annually, costs of suit and attorneys' commission of twenty percent. Plaintiff has therefore brought claims for Breach of Contract, Unjust Enrichment, Promissory Estoppel and Slander Per Se to recover those damages. Defendants have cited no authority to support the proposition that any of these actions are improper or illegal. Plaintiff has not brought a claim for confession of judgment, and no law prohibiting confession of judgment has any application to this matter. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter an Order overruling Defendants' Preliminary Objections and to Order Defendants to file an Answer to Plaintiff's Complaint or suffer sanctions. Respectfully submitted, Dated:--~/,-~/o Q BY: FINEMAN & BACH, P.C. June J. l~sis, ]~squire Emily L. Kaplan, Esquire 19th Floor 1608 Walnut Street Philadelphia, PA 19103 (215) 893-9300 Attorneys for Plaintiff Essis and Sons, Inc. Z:\ELK\Essis and Sons v. GoffXMemo in support of Response to PO.doc VERIFICATION I, Emily L. Kaplan, an authorized representative of Plaintiff, Essis and Sons, Inc., verify that the facts stated in the foregoing Plaintiff's Response to Defendant's Preliminary Objections are true and correct to the best of my knowledge, information and belief. I understand that the statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unswom falsification to authorities. DATE: May 31, 2002 Z:~ELK~Essis and Sons v. Goff~Vcrifieation ELK.doe FINEMAN & BACH, P.C. BY: JUNE J. ESSIS, ESQUIRE I.D. No. 54183 BY: EMILY L. KAPLAN, ESQUIRE I.D. No. 87605 1608 Walnut Street, 19t" Floor Philadelphia, PA 19103 (215) 893-9300 ESSIS AND SONS, INC. PLAINTIFF STEVEN GOFF AND TINA GOFF, H/W DEFENDANTS Attorneys for the Plaintiff Essis and Sons, Inc. COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA : : NO. 02-1582 Civil Term CERTIFICATE OF SERVICF I, Emily L. Kaplan, Esquire, attorney for the defendant Essis and Sons, Inc., do hereby certify that on this 31'* day of May 2002, I served, via First Class Mail, a copy of the attached: Plaintiff's Response to Defendants' Preliminary Objections Upon: Thomas O. Williams, Esquire Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011 Emily L. Kallan Z:~LK~ssis and Sons v. Gofl~cos. doc ESSIS & SONS, INC., Plaintiff STEVEN GOFF and TINA GOFF, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : NO.: 02-1582 Civil Term : : Jury Trial Demanded : DEFENDANTS' MOTION TO COMPEL ANSWERS TO INTERROGATORIES AND REOUESTS FOR PRODUCTION DIRECTED TO PLAINTIFF AND NOW, come Defendants, Steven Goff and Tina Goff, by and through their attorneys, Reager & Adler, P.C., who file this Motion to Compel Answer to Interrogatories and Requests for Production of Documents Directed to Plaintiff and in support thereof aver the following: 1. This case was commenced by Plaintiff, Essis & Sons, Inc. (hereinafter "Plaimiffs") by the filing of a Complaint against Defendants Steven Goff and Tina Goff (hereinafter "Defendants") on or about April 29, 2002. 2. The Defendants commenced discovery by serving Plaintiff with Requests for Production of Documents and Interrogatories on or about May 14, 2002. 3. The discovery requests were served upon Plaintiff's attorney, June J. Essis, Esquire, by fu:st class mail under a cover letter dated May 14, 2002. A tree and correct copy of the cover letter and the Defendants' Request for Production of Documents and Interrogatories are attached hereto as Exhibit "A". 4. More than thirty (30) days have passed since the Plaintiff was served with Defendants' Request for Production of Documents and Interrogatories. 5. To date, the Plaintiff has failed and refused to provide documents responsive to the Request for Production of Documents and answers to the Interrogatories. 6. No objections have been filed by the Plaintiffwith respect to the Defendants' Request for Production of Documents and Interrogatories. 7. By way of a letter from the undersigned counsel to Plaintiff's counsel dated June 18, 2002, the undersigned counsel requested that answers and documents responsive to the Defendants' discovery requests be provided within seven (7) days of the letter so that a motion to compel could be avoided. A true and correct copy of the aforementioned letter is attached hereto as Exhibit "B". 8. Plaintiff's failure and refusal to provide documents responsive to Defendants' Request for Production of Documents and answers to Interrogatories constitutes a violation of the Pennsylvania Rules of Civil Procedure. WHEREFORE, Defendants, Steven Goff and Tina Golf, respectfully request this Honorable Court to compel Plaintiff, Essis & Sons, Inc. to provide answers and documents responsive to the outstanding discovery requests, to further award the Defendants attorneys' fees and costs in filing and pursuing this motion, and to further enter an Order precluding Plaintiff from offering or presenting evidence of any kind that is the subject of the outstanding discovery requests. Date: Respectfully submjI[ed, ,,~ Thom~XO(. Wi~ams, Esquire Attorney I.D. No. 67987 2331 Market Street Camp Hill, PA 17011-464 Telephone: (717) 763-1383 Attorneys for Defendants REAGER & ADLER, PC ATTORNEYS AND COUNSELORS AT LAW THEODORE A. ADLER + DAVID W. REAGER CHARLES E. ZALESKI LINUS E. FENICLE DEBRA DENISON CANTOR Wdter's E-Mail Address: tomwi[l~ep~net Sune J. Essis, Esquire Emily L. Kaplan, Esquire 19~ Floor 1608 Walnut Street Philadelphia, PA 19103 2331 MARKET STREET CAMP HILL, PENNSYLVANIA 17011-4642 717-763-1383 TELEFAX 7'~ 7-730-7366 WEBSITE: ReagerAdlerPC.com May14,2002 THOMAS O. WILLIAMS SUSAN H. CONFAIR JOANNE HARRISON CLOUGH CHRISTINE SCHWAMBERGER DOUGLAS P. LEHMAN + Certified Civil Trial Specialist Re: Essis and Sons, Inc. v. Steven Goffand Tina Goff Docket No.: 02-1582 (Cumberland Co. C.C.P.) Our File No.: 91-121.005 De~r Ms. Essis and Ms. Kaplan: Enclosed for service upon you please find an o~al and one (1) copy of Defendants' Interrogatories and Request for Production of Documents directed to Plaintiff, Essis & Sons, Inc. We look forward to your client's answers withlu, thirty (30) days in accordance with the Pennsylvania Rules of Civil Procedure. If you have any questions, please do not hesitate to call me. TOW/cmc Enclosure Cc: Steven & Tina Goff(w/encl.) ESSIS & SONS, INC., Plaintiff STEVEN GOFF and TINA GOFF, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : NO.: 02-1582 Civil Term : : Jury Trial Demanded DEFENDANTS' REOUEST FOR PRODUCTION OF DOCUMENT~ PROPOUNDED UPON PLAINTIFF Pursuant to Pa. R.C.P. 4003.3 and 4009, please furnish, at my expense, to my office within thirty (30) days, a photostatic copy or like reproduction of the following materials concerning this action or its subject matter which are in your possession, custody or control and which are not protected by the attorney/client privilege; or, in the alternative, produce the said matter at said time to permit inspection and copying thereof. I. Definitions and Instructions. As used herein: 1. The term "you" and "your" shall mean and refer to Plaintiff, Essis & Sons, Inc. "Document" means and includes any kind of written, typewritten or printed material whatsoever, including but not limited to papers, agreements, contracts, notes, memoranda, comments, correspondence, letters, telegrams, statements, invoices, record books, reports, studies, minutes, records, accounting books, transcriptions and recordings of which you have any knowledge or information, whether in your possession or under your control, relating to or pertaining in .any way to the subject matters in connection with which it is used, and includes, without limitation, originals, all file copies, all other copies, no matter how or by whom prepared, and all drafts prepared in connection with such writings, whether or not used. "Person" means and includes natural persons, corporations, pazinerships, associations and any other kind of business or legal entity. "Identify" or "identity," when used with respect to a person or persons, means to state the full name of each such person, his or her present or last known address, and his or her present or last known business affiliation. "Identify" or "identity," when used with respect to a document or documents, means to: ao Identify each person or persons who wrote, signed, initialed, dictated, or otherwise participated in the creation thereof; b. State the date of preparation; c. Identify the addressee of all persons 'receiving copies thereof; d. Describe the type of document; e. State its present location; f. Identify each person who has custody or control thereof; and go If the document was, but is no longer, in your possession or control or that of your agent or representative, state what disposition was made of the document. "Identify" or "identity," when used with respect to oral communication or oral communications means to: a. Identify each person who participated in the making thereof; "b. State the date of making; c. State the place of making; Identify each person who was present when such oral communication was made; eo Identify any document or other foim of record made regarding the content of the oral communication; f. Describe the type of document; g. State the record's present location; and h. Identify each person who has custody or control of such record. "Refers to" means any document that relates to, mentions, concerns, reflects, discusses, analyzes, records, reports, or studies a particular subject or some aspect of the subject, or transmits, accompanies, forwards or is attached to documents relating to a particular subject; or which describes a particular subject regardless of whether the proper name, designation or title of the subject is specifically mentioned. Nonverbal documents relate to a subject if they depict or represent in any fashion the indicated subject. o The following general instructions shall govern the interpretation of responses made to these requests: eo Objections. If you contend that a response to a request for production calls, in whole or in part, for privileged documents, or if you otherwise object to any part of a request, or contend that any identified document would be excludible from production and discovery, please specify: i. the reason for each such objection or ground for exclusion; ii. the identity of each person having knowledge of the factual basis, if any, on which the privilege or other ground is asserted; . iii. the individual documents alleged to be privileged, the author ' thereof, the addressee, the date, and all copy recipients. Scope of Documents. Documents called for in these requests encompass all variety or character of materials in Plaintiffs custody and under his control. These requests admit no exception because documents are classified as "private," "personal," "sensitive," "proprietary," or the like. Lost or Destroyed Documents. Where documents responsive to these requests have been lost or destroyed, state: the date, last known location of the document, the last person in control or custody of the document and the reason for the document's loss or destruction. Revised, Amended and Superseded Documents. Documents called for herein include all documents relating to the indicated subject regardless of whether a particular document has been superseded, amended, revised, rewritten, redrafted, rejected or rendered obsolete. Marginalia, Notations, Etc. Documents, or copies of documents, otherwise identical, should be each individually produced if individual documents contained any communication, notation or recording that does not appear in another copy or that does not appear in the original. General Not Qualified by a Specific. In these requests, a general and categorical request is no way limited to or qualified by specific items that are provided as examples of the general category. The enumeration of specific items is for illustrative purposes only and is not considered as a limitation. 10. 11. 12. 13. DOCUMENTS TO BE PRODUCED Each and every document which you claim constitutes any written agreement between you and Defendants. Any and all documents relating to express and/or implied warranties of your work and/or the materials installed by you in the Defendants' home. Any and all work orders or purchase orders regarding the work which you performed at the Defendants' .home. Any and all documents relating to your work at the Defendants' home and/or relating to the Defendants including any notes, messages, reports, telephone messages, mails or correspondence. Any and all documents relating to your ordering of the Etema flooring product for the Defendants' home. Any and all documents between you and any and all credit companies regarding payment by the Defendants. Any and all notes, messages, reports, emails or documents of any kind relating to or referring to the Defendants and/or the Defendants credit card company concerning your work and/or payment for your work at the Defendants' home. Any and all.notes, messages, telephone messages, emails, reports or documents of any kind exchanged between you and Mr. Tom Dux regarding the installation requirements and/or the installation of the flooring at the Defendants' home. Any and all reports of inspections and/or expert reports undertaken by and/or prepared by anyone on your behalf regarding your work at the Defendants' home. Any and all documents constituting or referring to instructions and/or requirements for the installation of the flooring you installed in the Defendants' home. Any and all photographs or' videotapes depicting your work at the Defendants' home. Any and all notes, reports or other documents prepared by your installers and/or your estimator regarding the work performed or to be performed by you on the Defendants' home. Any and all documents of any kind relating to the manufacturers specifications, requirements and/or installation instructions for the wood flooring product installed by you in the Defendants' home. ' 4 14. 15. 16. 17. Any and all documents of any kind relating to the damages you allege you incurred under any and all counts of your Complaint. Any and all documents which you claim constitute or relate to any and all alleged slanderous statements made by the Defendants, Any and documents evidencing or relating to testing or checking by you of the humidity in the Defendants' home. Any and all documents evidencing or relating to your determination, testing or checking of the job site environment and the subsurfaces involved prior to your installation of the hardwood flooring in the Defendants' home. Date: May14,2002 Respectfully submitted, Thomas O. Williams, Esquire Attorney I.D. No. 67987 2331 Market Street Camp Hill, PA 17011-464 Telephone: (717) 763-1383 Attorneys for Defendants CERTIFICATE OF SERVICE AND NOW, this 14~ day of May, 2002, I hereby verify that I have caused a true and correct copy of the foregoing Request for Production of Documents to be placed in the U.S. mail, first class, postage prepaid and addressed as follows: June J. Essis, Esquire Emily L. Kaplan, Esquire 19th Floor 1608 Walnut Street Philadelphia, PA 19103 ESSIS & SONS, INC., Plaintiff STEVEN GOFF and TINA GOFF, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.: 02-1582 Civil Term Jury Trial' Demanded DEFENDANTS' INTERROGATORIES PROPOUNDED UPON PLAINTIFF .(First Set] You are directed to submit written answers under oath to each of the following questions. You must make reasonable efforts to obtain answers to any question as to which information may be available to you. If you gain information at some later time which causes you to know that your answers were incorrect when made, or have become incorrect, you must supplement the answers you give in response to these questions, as provided in the Pennsylvania Rules of Civil Procedure. If you gain information at some later time regarding the identity of persons about whom a question is asked, you must supplement the answers you give in response to these questions, as provided in Within thirty (30) days, you must remm the signed original of these interrogatories to Defendants' counsel. In answering these questions, assume that all words used have their ordinary meanings in normal English usage, except as provided below or where content requires other interpretation. "Identify", when used in respect of a person, means to state that person's name, address, telephone number, job classification and such other information as would enable Defendants to locate the personi interview him/her, or serve a subpoena upon him/her. "Identify", when used in respect of a document, means the date of its making or execution, the identity of the person or persons who made or executed it,. and the particular part, paragraph, or other subdivision thereof which is particularly relevant to the question; also state the place where it is kept and identify the person in whose custody it may be found, with such specificity as will enable Defendants to obtain the document through the use ora subpoena. "Identify", when used in respect of a communication, means to identify the parties to the communication, the means of communication, and the date and time thereof. "Person" means any natural or juridical person, group of persons, or association. "Communication" means any transmission or exchange of in¢ormation or meaning between two or more persons in any form. "Document" means any writing, recording or other material substance having on it a representation of some information, whether in the form of magnetic impulses, printing, or any other medium in which information may be preserved. "You" and "Your" shall mean and refer to Plaintiff, Essis & Sons, Inc. IH. SPECIAL INSTRUCTIONS 1. If you do not answer an interrogatory, in whole or in part, because of a claim or privilege, set forth the privilege claimed, identify the facts upon which you rely to support the claim of privilege; and identify all documents for which such privilege is claimed. In particular, if you refuse to identify a communication because of a claim of the attorney/client privilege, identify the speaker or author of the communication; the capacity in which the speaker or author was acting when he made the communication; the recipient of the communication; any persons present when the communication was made; and the subject or topics discussed in the communication. 2. Unless otherwise specified, each interrogatory requires a continuing answer. Each separate part of each interrogatory shall be separately answered. 3. Along with the answer to each numbered interrogatory, identify each person who participated in or supplied information with respect to the preparation of the response to such interrogatory, specifying whether each of such persons supplied relevant in¢ormafion, participated in the preparation of the response, or both. If the response to any interrogatory contains information supplied by more than one person, specify the particular information supplied by each such person. State whether he/she had first-hand information as to the matters contained in your answers, and if so, the manner in which he/she acquired such information; if not, the basis for his participation or involvement. 4. As specified by the Pennsylvania Rules of Civil Procedure, you are required to supplement or amend your responses to these interrogatories based upon any and all information obtained after filing such responses. IV. SPECIAL INSTRUCTION AS TO ORAL COMMUNICATIONS AND WRiTIEN COMMUNICATIONS 1. With respect to any interrogatory in which reference is made to this special instruction, set forth with regard to each oral communication the following: The name, company or other affiliation, title or other identifying feature of the individual who made the oral communication. Bo State the name(s) of each individual to whom such oral communication was made, including such description of those individuals as to enable Defendants to identify those individuals as to their afliafion, title or responsibility. State the date upon which such oral communication was made. State the place where such oral communication was made. State the n. ame and identification of each individual who heard the oral communication if different or in addition to those individuals to whom such oral communication was made. State in detail the nature of the words communicated during such oral communication repeating the actual words used to the extent possible and, when not possible, paraphrasing those words. State if any individual to whom such oral communication was made, made any statements in response to said communication, and if so, identify such responses in sufficient detail by quoting the precise words used or by otherwise phrasing those words. State if said oral communication(s) was/were ever memorialized in any document or set forth a copy of same. If response to any interrogatory refers to a written communication, set forth the following: (a) a copy of such written communication; or (b) a detailed identification of such written document, including at least the following: (i) the date of the document; (ii) the name of the party who wrote the document; (iii) the name of the party to whom such documents were sent and the date upon which such documents were sent; (iv) the date upon which such document was received by the recipient; if known; (v) a full description of the contents of the document; (vi) if any response to said document was received and, if so, identify said response in sufficient detail so as to include the same information indicated in the preceding subparts of this instruction. INTERROGATORIES 1. Identify the individuals taking part in the answering of these interrogatories. ANSWER: o Expert wimesses. Identify each expert you intend to call as a witness at the trial of this matter, and for each expert state: a. The subject matter about which the expert is expected to testify; and The substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (You may file as your answer to this interrogatory the report of the expert or have the interrogatory answered by your expert.) ANSWER: Trial witnesses. Identify each person you intend to call as a non-expert witness at the trial of this case, and for each person identified, state your relationship with the witness and the substance of the facts to which the witness is expected to testify. ANSWER: Trial exhibits. Identify all exhibits that you intend to use at the trial of this matter and state whether they will be used during the liability or damages portions of the trial. ANSWER: Identify each employee, agent or representative ofEssis & Sons, Inc. that took part in the preparation ora proposal and/or took part in preparing the estimate for the installation of the wood flooring in the Defendants' home. ANSWER: o Identify each employee, agent or representative ofEssis & Sons,/nc. who took part in the installation of the wood flooring in the Defendants' home. ANSWER: Please state the date on which you delivered the hardwood flooring to the Defendants' home. ANSWBR: 10 o State the date on which you commenced the installation of the hardwood flooring in the Defendants' home. ANSWER: 11 Identify the employee, representative, or agent ofEssis & Sons, Inc. who was responsible for supervising the installation of the hardwood flooring in the Defendants' home. Include in your answer the following: Co The date on which this individual was first employed by Essis & Sons,.Inc. The number of years of experience in the installation of the product which was installed in the Defendants' home by Essis & Sons, Inc. th/s individual had at the time of the installation of the hardwood flooring in the Defendant's home. The specific dates on which this individual was present in the Defendants' home. ANSWER: 12 10. Identify the specific product which you claim you installed in the Defendants home by product name. Include in your answer to this interrogatory the following: a. A manufacturer of the product; b. The specific business address of the headquarters of the manufacturer; ANSWER: The name of the distributer of the product from whom you purchased the prodUct; and Identify the individual sales representative with whom you dealt with in purchasing the product which was installed by you in the Defendants' home. 13 11. State whether you claim you in~talled the hardwood flooring product in the Defendants' home in accordance with all manufacturers instructions7 If your answer to this interrogatory is no, state the instructions/requirements with which you did not .comply with in installing the hardwood flooring product in the Defendants' home. IfY°ur answer to this interrogatory is yes, state the following: a. State whether you followed written instructions/requirements; ANSWER: Identify specifically who l~om Essis & Sons, Inc. confirmed or assured that the manufacturers instructions/requirements were being followed in the installation of the hardwood flooring product in the Defendants' home. 14 12. State with specificity the alleged slanderous statement made by the Defendants which you alleged at paragraphs 25 and 26 of your Complaint. 15 13. Identify who specifically made an alleged slanderous statement and identify to whom you cla/m the slanderous statement was made. ANSWER: 16 14. State the date on which you claim the slanderous statement was allegedly made and where the alleged slanderous statement was made. ANSWER: Date: May 14, 2002 Respectfully su~mitted~ Attorney I.D. No. 67987 ' 2331 Market Street Camp Hill, PA 17011-464 Telephone: (717) 763-1383 Attorneys for Defendants 17 CERTIFICATE OF SERVICE AND NOW, this 14t~ day of May, 2002, I hereby verify that I have caused a true and correct copy of the foregoing Interrogatories to be placed in the U.S. mail, first class, postage prepaid and addressed as follows: June J. Essis, Esquire Emily L. Kaplan, Esquire 19~ Floor 1608 Walnut Street Philadelphia, PA 19103 ~IOMAS O. WILLIAMS, ESQI.)tRE REAGER & ADLER, PC ATTORNEYS AND COUNSELORS AT LAW 2331 MARKET STREET CAMP HILL, PENNSYLVANIA 17011-4642 717-763-1383 TELEFAX 717-730-7366 WEBSITE: ReagerAdlerPC.com THEODORE A. ADLER + DAVID W. REAGER CHARLES E. ZALESKI LINUS E. FENICLE DEBRA DENISON CANTOR THOMAS O. WILLIAMS SUSAN H. CONFAIR JOANNE HARRISON CLOUGH CHRISTINE SCHWAMBERGER DOUGLAS P. LEHMAN W~ter's E-Mail Address: tomw~ll@epix.net + Cedified Civil Trial Specialist June 18, 2002 June J. Essis, Esquire 19th Floor 1608 Walnut Street Philadelphia, PA 19103 Re: Essis and Sons, Inc. v. Steven Goff and Tina Goff Docket No.: 02-1582 (Cumberland Co. C.C.P.) Our File No.: 91-121.005 Dear Ms. Essis: As you will recall, we served you with Interrogatories and Requests for Production of Documents under cover letter dated May 14, 2002. As you know, the Pennsylvania Rules of Civil Procedure require that the answers be provided within thirty (30) days. To date we have received no responses to our requests. Please provide answers and documents responsive to the requests within seven (7) days of the date of this letter so that a motion to compel can be avoided. TOW/cmc cc: Steve & Tina Goff CERTIFICATE OF SERVICE AND NOW, this 3a day of July, 2002, I hereby verify that I have caused a true and correct copy of the foregoing Motion to Compel to be placed in the U.S. mail, first class, postage prepaid and addressed as follows: June J. Essis, Esquire Emily L. Kaplan, Esquire 19~ Floor 1608 Walnut Street Philadelphia, PA 19103 THO1V~A~8/O WILLIAMS, ESQUIRE ESSIS & SONS, INC., Plaintiff STEVEN GOFF and TINA GOFF, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : NO.: 02-1582 Civil Term : : Jury Trial Demanded RULE AND NOW, this ~ *' day of O,~k ,2002, a Rule is issued upon Plaintiff, / ! Essis & Sons, Inc. to show cause why the relief requested in Defendants' Motion to Compel should not be granted. Rule returnable within4~t~ days of' the date o~this Order. By the Court, Jo ESSIS & SONS, INC., Plaintiff STEVEN GOFF and TINA GOFF, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : NO.: 02-1582 Civil Term : : Jury Trial Demanded CERTIFICATE OF SERVICE AND NOW, this 11~ day of July, 2002, I hereby verify that I have caused a true and correct copy of the attached Rule to be placed in the U.S. mail, first class, postage prepaid and addressed as follows: June J. Essis, Esquire Emily L. Kaplan, Esquire 19th Floor 1608 Walnut Street Philadelphia, PA 19103 Attomey I.D. No. 67987 2331 Market Street Camp Hill, PA 17011-464 Telephone: (717) 763-1383 Attorney for Defendants ~UL 0 B 2002 ESSIS & SONS, INC., plaintiff Vo STEVEN GOFF md TIBIA GOFF, Defendants : IN THE COURT OF CO1VfMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO.: 02-1582 Civil Term : Jury Trial Demanded RULE AND NOW, this ? ~day of ~ ,2002, a Rule is issued upon Plaintiff, Essis & Sons, Inc. to show cause why the relLefrequested_in Defendants' Motion to Compel should not be granted. Rule returnable within te~-~l~) days of the date o~this Order. By the Court, TRUE (.,OPY PROM REGORD ,~ '~'estlmo~Y whereof. ~ he,e unto set my han~ FINEMAN & BACH, P.C. BY: JUNE J. ESSIS, ESQUIRE I.D. No. 54183 BY: EMII,y L. KAPLAN, ESQLrIRE I.D. No. 87605 1608 Walnut Street, 19th Floor Philadelphia, PA 19103 (215) 893-9300 Attorneys for the PlaintiffEssis and Sons, Inc. ESSIS AND SONS, INC. PLAINTIFF STEVEN GOFF AND TINA C-OFF, H/W DEFENDANTS COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 02-1582 Civil Term PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO COMPEL ANSWERS TO INTERROGATORIES AND REQUESTS FOR PRODUCTION AND MOTION FOR PROTECTIVE ORDER Fineman & Bach, P.C., counsel for PlalntiffEssis & Sons, Inc., (hereinafter referred to as "Essis & Sons") hereby responds to Defendants Steven and Tina Goff's (hereinat~er referred to as "Defendants") Motion to Compel Answers to Interrogatories and Requests for Production as follows: RESPONSE TO DEFENDANTS' MOTION TO COMPEl, 1. Admitted. 2. Denied. Paragraph 2 contains conclusions of law to which it is not necessary to admit or deny. By way of further answer, to the extent this paragraph contains an averment of fact, Essis & Sons is without sufficient information to admit or deny the allegations contained in Paragraph 2. 3. Denied. By way of further answer, to the extent this paragraph contains an averment of fact, Essis & Sons is without sufficient information to admit or deny the allegations contained in Paragraph 3. By way of further answer, Defendants' Exhibit "A" speaks for itself. 4. Denied. Paragraph 4 comains conclusions of law to which it is not necessary to admit or deny. 5. Denied. Paragraph 5 comains conclusions of law to which it is not necessary to admit or deny. 6. Denied. Essis and Sons' objections were served on Defendants on July 17, 2002 by First Class Mail, a copy of which is attached hereto. 7. Denied. Defendants' Exhibit "B" speaks for itself. 8. Denied. Paragraph 8 contains conclusions of law to which it is not necessary to admit or deny. Further~iiore, it is specifically denied that the Pennsylvania Rules of Civil Procedure require Essis & Sons to answer Defendants' Discovery because preliminary objections are unresolved and Defendants have not answered Essis & Sons' Complaint. On the contrary, the interests of justice are furthered by a court order barring discovery for the preparation and trial of the case until the plaintiffs complaint has been filed, the defendant's preliminary objections to the plaintiffs complaint have been resolved, and the defendant has filed an answer to the complaint. Ports v. Consolidated Rail Corp., 37 Pa. D. & C.4th 196 (CCP Allegheny County 1998). Furthermore, Defendants' request for attorneys' fees, and an Order precluding Essis & Sons from presenting evidence that is the subject of the outstanding discovery requests is outrageous and completely unsupported by any authority. WHEREFORE, Essis & Sons respectfully requests this Honorable Court to deny Defendants' Motion to Compel, to deny Defendants' request for attorneys' fees and costs, to deny Defendants' Motion for an Order precluding Essis & Sons from offering or presenting evidence that is the subject of the discovery requests, and/or entering an appropriate Protective Order. PLAINTIFF'S MOTION FOR PROTECTIVE ORI)EP_ 9. Essis & Sons incorporates herein its Answers to Paragraphs 1 through 8 as though fully set forth herein at length. 10. This action was commenced when Essis & Sons filed a Complaint against Defendants for failure to pay for services that Essis & Sons had provided. 11. Defendants have not answered Essis & Sons' Complaint. 12. Defendants filed preliminary objections to Essis & Sons' Complaint on May 16, 2002 and Essis & Sons responded to Defendants' Preliminary Objections on May 31, 2002. These preliminary objections remain unresolved. See a tree and correct copy of Defendants' Preliminary Objections and Essis & Sons' Response thereto, collectively attached as Exhibit "1". 13. Counsel for Essis & Sons received Defendants' Interrogatories and Requests for Production of Documents on May 16, 2002. 14. Defendants' Interrogatories and Requests for Production of Documents are general in nature and not relevant to Defendants' Preliminary Objections. See Exhibit "1". 15. Essis & Sons cannot effectively respond to Defendants' Discovery Requests because Defendants' Preliminary Objections are unresolved, and the issues have not been narrowed by fact pleading. 16. Responding to discovery before the pleadings are closed would be unduly burdensome for Essis & Sons. 17. Pennsylvania courts have held that requiring plaintiffs to respond to discovery before the pleadings are closed is contrary to public policy under Pennsylvania law, which requires fact pleading. See In Re: Condemnation by the Commonwealth of Pennsylvania Department of Transportation of Right of Way for Legislative Route 146, 547 A.2d 867 (Pa. Cmwlth. 1988); Potts v. Consolidated Rail Corp., 37 Pa. D. & C. 4th 196 (CCP Allegheny County 1998). See a true a correct copy of the case Potts v. Consolidated Rail Corp., attached hereto as Exhibit "2". 18. The interests of justice are furthered by a court order barring discovery for the preparation and trial of the case until the defendant's preliminary objections to the plaintiff's complaint have been resolved, and the defendant has filed an answer to the complaint. Potts v. Consolidated Rail Corp., 37 Pa. D. & C.4th 196 (CCP Allegheny County 1998). 19. Accordingly, this Honorable Court has the authority under Pa. R. Civ. Pro. 4012 (a) to grant a Protective Order, barring discovery pending the disposition of Defendants' Preliminary Objections, and Defendants Answering Essis & Sons' Complaint. WHEREFORE, Essis & Sons respectfully requests this Honorable Court enter a Protective Order attached hereto. Dated: ~'//~107.~ Respectfully submitted, FINEMAN & BACH, P.C. E~, .MIL~L.~KAPLAI~ Attorneys for Plainti] Essis & Sons, Inc. EXHIBIT "1" ESSIS & SONS, INC., Plaintiff Vo STEVEN GOFF and TINA GOFF, Defendants To: Essis & Sons, Inc. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO.: 02-1582 Civil Term : : Jury Trial Demanded NOTICE TO PI,EA1) YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO ENCLOSED PRELIMINARY OBJECTIONS WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. Date: l~lay 16, 2002 Attorney I.D. No. 67987 2331 Market Street Camp Hill, PA 17011-464 Telephone: (717) 763-1383 Attorneys for Defendants ESSIS & SONS, INC., Plaintiff Vo STEVEN GOFF and TINA GOFF, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : NO.: 02-1582 Civil Teim : : Jury Trial Demanded DEFENDANTS' PRELIMINARY OBJECTIONS AND NOW, come Defendants, Steven Goffand Tina Goff, by and through their attorneys, Reager & Adler, P.C., and make the following preliminary objections to Plaintiff's Complaint in the above captioned case: I. MOTION TO STRIKF, 1. Plaintiff commenced this action by the filing of a Complaint, which Complaint was served upon Defendants on April 29, 2002. 2. Plaintiff's Complaint contains four (4) coUnts entitled Breach of Contract, Unjust Enrichment, Promissory Estoppel and Slander Per Se. 3. Pennsylvania Rule of Civil Procedure 1019(i) states as follows: "When any claim or defense is based upon a writing, the pleader:shall attach a copy of the writing..." 4. In its Complaint the Plaintiff alleged that the Defendants have breached a contract and has further stated that the contract is attached to the Complaint. 5. When Defendants were served with the Complaint no contract was attached to the Complaint. 6. Pennsylvania Rule of Civil Procedure 1028(a)(2) authorizes the assertion of a preliminary objection for the failure ora pleading to conform to law or role of court. 7. Plaintiff's failure to attach the written contract upon which it has alleged it bases its claim is a violation of Pennsylvania Rule of Civil Procedure 1019(i) and, as such, the purported causes of action set forth in Plaintiff's Complaint, which are claimed to be based on a writing, must be stricken. WHEREFORE, Defendants, Steven and Tina Goff, respectfully request this Honorable Court to strike the Plaintiff's Complaint with prejudice. 8. At Count Four of the Plaintiffs Complaint, Plaintiffpurports to set forth a cause of action for slander per se. 9. In support of th/s purported cause of action against the Defendants the Plaintiff has made only the following two (2) allegations: "Defendants made slanderous statements concerning Pla/ntiffEssis's business." (Paragraph 25 of Complaint) and "Those listeners who heard Defendants make defamatory statements regarding Plaintiff Essis, understood the defamatory nature of the statements and Defendants' intent to slander PlaintiffEssis."(Paragraph 26 of Complaint) 10. A C°mplaint for defamation must on its face, specifically identify what allegedly . defamatory statements were made, by whom and to whom. Moses v. McWilliamq, et al., 549 A.2d 950 (pa. Super 1985), appeal denied, 558 A.2d 532 (pa. 1989). 11. The Plaintiff's purported pleading of slander per se fails to allege any relevant factual basis and further fails to inform the Defendants as to what alleged wrongful statements they must defend. 12. The Plaintiff's Complaint fails to allege the alleged defamatory statement, to whom the alleged defamatory statement was made, when the defamatory statement was made and who made the defamatory statement. WHEREFORE, Defendants, Steven and Tina Goff, respectfully request this Honorable Court to dismiss Count Four of Plaintiffs Complaint with prejudice. III. IN THE ALTERNATIVE MOTION FOR MORE SPECIFIC PLEADINC. 13. Defendants incorporate herein the averments of paragraphs one (1) through twelve (12) above as if set forth fully herein. 14. In the event this Court overrules the Defendant's demurrer to Count Four of the Plaintiffs Complaint, the Defendant's contend that the Plaintiffhas failed to sufficiently plead a cause of action for slander. WHEREFORE, Defendants, Steven and Tina Golf, respectfully request this Honorable Court to enter an Order requiring the Plaintifi°s to plead County Four of their Complaint with specificity. VI. MOTION TO STRIKi~, 15. The Plaintiff in its Complaint makes a demand for attorneys' fees as part of its prayer for relief. 16. Although as noted above, the Plaintiffhas failed to attach a copy of a written agreement under which it bases its claims in violation of Pennsylvania of Civil Procedure 1019(i), it is anticipated that the PlaintiffWill allege that a written document dated January 19, 2001, signed by Defendant Tina Goffconstitutes an agreement between the parties. 17. Without w~iving any other defenses or objections with respect to the contract between the patties the document dated January 19, 2001, which was prepared by Essis & Sons, Inc. and bears the identifying number M03376 contains on the reverse side a confession of judgment provision. 18. The Pennsylvania Unfair Trade Practices and Consumer Protection Law at 73 P.S. §201-2(4)(xviii) states in pertinent part that it is an 'hmfa/r method of competition and an unfair or deceptive act or practice.., to use a contract, form or any other document related to a consumer transaction which coma/ns a confessed judgment clause that waives the consumer's right to assert a legal defense to an action." 19. The provision purporting to entitle the Pla/ntiff to an attorneys' commission is part of an unlawful confession of judgment clause and should thus be stricken as illegal. 20. The Defendants are "consumers" as that term is defined in the Pennsylvania Unfair Trade Practice and 'Consumer Protection Law and the transaction between the parties, which is the subject of this lawsuit, is a consumer transaction. WHEREFORE, Defendants Steve Golf and Tina Golf respectfully request this Honorable Court to strike each and every reference and demand for attorney' fees contained in Plaintiff's Complaint. Date: }'lay 16, 2002 Respectfully submitte,_~d as O. Williams, Esquire AttomeyI. D. No. 67987 2331 Market Street Camp Hill, PA 17011-464 Telephone: (717) 763-1383 Attorneys for Defendants We, Steve Goff and Tina Goff, verify the averments of the foregoing document are true and correct to our personal knowledge, information and belief. We understand that false state- ments herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Date: Ray 14, 2002 By: St~vve Goff .... CERTIFICATE OF SERVICE AND NOW, this 16~ day of May, 2002, I hereby verify that I have caused a tree and correct copy of the foregOing Preliminary Objections to be placed in the U.S. mail, first class, postage prepaid and addressed as follows: June J. Essis, Esquire Emily L. Kaplan, Esquire 19~ Floor 1608 Walnut Street Philadelphia, PA 19103 ESSIS.AND SONS, INC. = 6220 Carlisle Pike Mechanicsburg, Pennsylvania 17050 : PLAINTIFF : STEVEN OOFFAND TINA ~OFF, H/W : 235 Fickes Road . Dillsburg, Pennsylvania 17019 : DEFENDANTS : ORDER COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 02-1582 Civil Te~-~ AND NOW this day of ,2002, it is hereby ORDERED and DECREED that Defendants' Preliminary Objections in the above captioned matter are hereby OVERRULED, and Defendants' Answer to Plaintiff's Complaint is due within 20 days of the date of this ORDER or Defendant~ will suffer sanctions. By the Court: FINEMAN & BAC~, P.C. BY: JUNE J. ESSIS, ESQUIRE I.D. NO. 54183 BY: EMILY L. KAPLAN, ESQUIRE I.D. NO. 87605 1608 Walnut Street, 19th Floor Philadelphia, PA 19103 (215) 893-9300 Attorneys for the Plaintiff Essis.and Sons, Inc. ESSIS AND SONS, INC. PLAINTIFF STEVEN ~OFF AND TINA C, OFF, H/W DEFENDANTS PLAINTIFF,S RESPONSE TO DEFENDANTS' PRELIMINARY OBJECTIONS I. RESPONSE TO MOTION TO STRIKE : COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PA : : .. : : NO. 02-1582 Civi~ T~ l. Admitted. 2. Admitted. required. Den/ed. Paragraph 3 contains conclusions of law to which no response is 4. Denied as stated. Plaintiff's Complaint is a document in writing which speaks for itself. Any and all characterization is hereby den/ed. 5. Denied as untrue. When Plaintiff filed the Complaint, a copy of the contract was attached as Exhibit "A". Presumably, Defendants were served with the Complaint with the contract attached. Furthermore, Defendants were fa. xed a copy of the contract by Plaintiff when Plaintiffwas served with Preliminary Objections. Moreover, Defendants have in their possession a copy of the contract, and make reference to specific provisions of the contract in paragraph 17 of Defendants' Preliminary Objections. 6. Denied. Paragraph 6 contains conclusions of law to which no response is required. 7. Denied. Paragraph 7 contains conclusions of law to which no response is required. By way of further ansWer, when Plaintiff filed the Complaint, a copy of the contract was attached as Exhibit "A". Presumably, Defendants were served with the Complaint with the contract attached. Furthermore, Defendants were faxed a copy of the contract by Plaintiff when Plaintiff was served with Preliminary Objections. Moreover, Defendants have in their possession a copy of the contract, and make reference to specific provisions of the contract in paragraph 17 of Defendants' Preliminary Objections. WHEREFORE, Plaintiffrespectfully requests this Honorable Court to enter an Order overruling Defendants' Preliminary Objections. II. RESPONSE TO DEMURRER g. Denied as stated. Plaintiff's Complaint is a document in writing which speaks for itself. Any and all characterization is hereby denied. 9. Denied as stated. Plaintiff's Complaint is a document in writing which speaks for itself. Any and ail characterization is hereby denied. 10. Denied. The Complaint in a defamation action must generally allege: defamatory character of communication, publication of communication to third party, communication's referral to plaintiff, third party's understanding of communication's defamatory character, and injury. Petula v. Mellody, 588 A.2d 103 (Pa. Cmwlth. 1991). A communication which ascribes to another conduct, character, or a condition that would adversely affect his fitness for the proper conduct of his business, trade, or profession, is defamatory per se and plaintiffneed not prove special damages. Pelagatti v. Cohen~ 536 A.2d 1337, 370 Pa. Super. 422 (1987). Plaintiffhas therefore sufficiently plead defamation per se by pleading that Defendants made slanderous statements concerning Plaintiffs business and that those listeners who heard Defendants make defamatory statements regarding Plaintiff understood the defamatory nature of the statements and Defendants' intent to slander Plaintiff. 11. Denied. The Complaint in a defamation action must generally allege: defamatory character of communication, publication of communication to third party, eommunication's referral to plaintiff, third party's understanding of communication's defamatory character, and injury. Petula v. Mellody~ 588 A.2d 103 (Pa. Cmwlth. 1991). A communication which ascribes to another conduct, character, or a condition that would adversely affect his fitness for the proper conduct of his business, trade, or profession, is defamatory per se and plaintiffneed not prove special damages. _Pelagatti v. Cohen, 536 A.2d 1337, 370 Pa. Super. 422 (1987). Plaintiffhas therefore sufficiently plead defamation per se by pleading that Defendants made slanderous statements concerning Plaintiffs business and that those listeners who heard Defendants make defamatory statements regarding Plaintiff understood the defamatory nature of the statements and Defendants' intent to slander Plaintiff. 12. Denied. The Complaint in a defamation action must generally allege: defamatory character of communication, publication of communication to third party, communication's referral to plaintiff, th/rd party's understanding of communication's defamatory character, and injury. Petula v. Mellody~ 588 A.2d 103 (Pa. Cmwlth. 1991). A communication which ascribes to another conduct, character, or a condition that would adversely affect his fitness for the proper conduct of his business, trade, or profession, is defamatory per se and plaintiffneed not prove special damages. Pelagatti v. Cohen, 536 A.2d 1337, 370 Pa. Super. 422 (1987). Plaintiffhas therefore sufficiently plead defamation per se by pleading that Defendants made slanderous statements concerning Plaintiff's business and that those listeners who heard Defendants make defamatory statements regarding Plaintiffunderstood the defamatory nature of the statements and Defendants' intent to slander Plaintiff. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter an Order overruling Defendants' Preliminary Objections. III. RESPONSE TO REQUEST FOR A MORE SPECIFIC PLEADING 13. Plaintiff incorporates herein the answers to paragraphs one through twelve as though fully set forth herein at length. 14. Denied. The Complaint in a defamation action must generally allege: defamatory character of communication, publication of communication to third party, communication's referral to plaintiff, third party's understanding of communication's defamatory character, and injury. Petula v. Mellody, 588 A.2d 103 (Pa. Cmwlth. 1991). A communication which ascribes to another conduct, character, or a condition that would adversely affect his fitness for the proper conduct of his business, trade, or profession, is defamatory per se and plainfiffneed not prove special damages. Pelagatti v. Cohen, 536 A.2d 1337, 370 Pa. Super. 422 (1987). Plaintiff has therefore sufficiently plead defamation per se by pleading that Defendants made slanderous statements concerning Plaintiff's business and that those listeners who heard Defendants make defamatory statements regarding Plaintiff understood the defamatory nature of the statements and Defendants' intent to slander Plaintiff. WHEREFORE, Plaintiffrespectfully requests this Honorable Court to enter an Order overruling Defendants' Preliminary Objections. IV. MOTION TO STRIKE 15. Denied as stated. Plaintiffs Complaint is a document in writing which speaks for itself. Any and all characterization is hereby denied. 16. Denied as untrue. When Plaintiff filed the Complaint, a copy of the contract was attached as Exhibit "A". Presumably, Defendants were served with the Complaint with the contract attached. Furthermore, Defendants were faxed a copy of the contract by Plaintiffwhen Plaintiff was served with Preliminary Objections. Moreover, Defendants have in their possession a copy of the contract, and make reference to specific provisions of the contract in paragraph 17 of Defendants' Preliminary Objections. 17. Admitted. Denied. Paragraph 18 contains conclusions of law to which no response is 18. required. 19. Denied. Plaintiffhas not brought an action for confession of judgment. Plaintiff has suffered damages including $14,864.00, plus interest in the amount of eighteen percent annually, costs of suit and attorneys' commission of twenty percent, and has brought claims for Breach of Contract, Unjust Enrichment, Promissory Estoppel and Slander Per Se to recover those damages. Defendants have cited no authority to support the proposition that any of these actions are improper or illegal. 20. Denied. Paragraph 20 contains conclusions of law to which no response is required. WHEREFORE, Plaintiffrespectfully requests this Honorable Court to enter an Order overruling Defendants' Preliminary Objections and to Order Defendants to file an Answer to Plaintiff's Complaint or suffer sanctions. Respectfully submitted, FINEMAN & BACH, P.C. BY: Emily L. Kaplan, Esquire 19~ Floor 1608 Walnut Street Philadelphia, PA 19103 (215) 893-9300 Attorneys for Plaintiff Essis and Sons, Inc. Z:kELK\Essis and Sons v. GoffkResponse to POs.doc FINEMAN & BACH, P.C. BY: JUNE J. ESSIS, ESQUIRE I.D. No. 54183 BY: EMILY L. KAPLAN, ESQUIRE I.D. No. 87605 1608 Walnut Street, 194 Floor Philadelphia, PA 19103 (215) 893-9300 Attorneys for the Plaintiff Essis and Sons, Inc. ESSIS AND SONS, INC. PLAINTIFF STEVEN GOFF AND TINA GOFF, H/W DEFENDANTS COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 02-1582 Civil Te~ MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S RESPONSE TO DEFENDANTS' PRELIMINARY OBJECTIONS I. INTRODUCTION Essis and Sons, Inc. (hereinafter referred to as "Plaintiff") brought this action against Steven Goff and Tina Golf (hereinafter referred to as "Defendants") to recover damages arising from Defendants' breach of contract, unjust enrichment and promissory estoppel. Defendants have filed Preliminary Objections to Plaintiffs Complaim. II. LEGAL AP~GUMENT A. Because Plaintiff attached a copy of the contract at issue to the Complaint, Defendants' Motion to Strike must be overruled. Defendants claim that they were served a Complaint without any contract attached. However, when Plaintiff filed the Complaint, a copy of the contract was attached as Exhibit "A". Presumably, Defendants were served with the Complaint with the contract attached. Furthermore, Defendants were faxed a copy of the contract by Plaintiff when Plaintiff was served with Preliminary Objections. Moreover, Defendants have in their possession a copy of the contract, and make reference to specific provisions of the contract in paragraph 17 of Defendants' Preliminary Objections. Therefore, Pennsylvania Kule of Civil Procedure 1019(i), which states, "When any claim or defense is based upon a writing, the pleader shall attach a copy of the writing..." does not bar any cause of action in Plaintiff s Complaint. Plaintiff is in compliance with Pule 1019(i). Therefore Defendants' Motion to Strike must be overruled. B. Because Plaintiff adequately plead a cause of action for defamation, Defendants' Demurrer and Motion for More Specific Pleadin~ should be overruled. The Complaint in a defamation action must generally allege: defamatory character of communication, publication of communication to third party, communication's referral to plaintiff, third party's understanding of communication's defamatory character, and injury. Petula v. Mellodv~ 588 A.2d 103 (Pa. Cmwlth. 1991). A communication which ascribes to another conduct, character, or a condition that would adversely affect his fitness for the proper conduct of his business, trade, or profession, is defamatory per se and plaintiff need not prove special damages. Pela~atti v. Cohen~ 536 A.2d 1337, 370 Pa. Super. 422 (1987). Plaintiffhas therefore sufficiently plead defamation per se by pleading that Defendants made slanderous statements concerning Plaintiff's business and that those listeners who heard Defendants make defamatory statements regarding Plaintiff understood the defamatory nature of the statements and Defendants' intent to slander Plaintiff. Moreover, the District Court for the Eastern District of Pennsylvania has held that a defamation plaintiff does not have to plead precise defamatory statements, nor must she specifically name the person to who made the statements, and so long as the count provides sufficient notice to defendants, it is sufficient. Tuman v. Genesis Associate.% 935 F.Supp. 1375 (E.D.Pa. 1996). Application of the rule of Tuman to the instant case means that Plaintiffhas sufficiently plead a cause of action for defamation by pleading that Defendants made slanderous statements concerning Plaintiffs business and that those listeners who heard Defendants make defamatory statements regarding Plaintiff understood the defamatory nature of the statements and Defendants' intent to slander Plaintiff. For the aforementioned reasons, Defendants' Demurrer and Motion for More Specific Pleading should be overruled. C. Because Plaintiff's demand for attomeys' commission does not violate the Pennsylvania Unfair Trade Practices and Consumer Protection Law, Defendants' Motion to Strike Should be overruled Plaintiffhas suffered damages including $14,864.00, plus interest in the amount of eighteen percent annually, costs of suit and attorneys' commission of twenty percent. Plaintiff has therefore brought claims for Breach of Contract, Unjust Enrichment, Promissory Estoppel and Slander Per Se to recover those damages. Defendants have cited no authority to support the proposition that any of these actions are improper or illegal. Plaintiff has not brought a claim for confession of judgment, and no law prohibiting confession of judgment has any application to this matter. WHEREFORE, Plaintiffrespectfully requests this Honorable Court to enter an Order overruling Defendants' Preliminary Objections and to Order Defendants to file an Answer to Plaintiff's Complaint or suffer sanctions. Respectfully submitted, Dated:~'-/,~/c> ~ BY: FINEMAN & BACH, P.C. June J. E~sis, ~sqUire Emily L. Kaplan, Esquire 19th Floor 1608 Walnut Street Philadelphia, PA 19103 (215) 893-9300 Attorneys for Plaintiff Essis and Sons, Inc. Z:\ELK\Essis and Sons v. GoffiMemo in support of Response to PO.doc VERIFICATION I, Emily L. Kaplan, an authorized representative of Plaintiff, Essis and Sons, Inc., verify that the facts stated in the foregoing Plaintiff's Response to Defendant's Preliminary Objections are true and correct to the best of my knowledge, information and belief. I understand that the statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. DATE: May 31, 2002 Z:kELI~Essis and Sons v. Goff~Verifieafion ELK.doe FINEMAN & BACH, P.C. BY: JUNE J. ESSIS, ESQUIRE I.D. No. 54183 BY: EMILY L. KAPLAN, ESQUIRE I.D. No. 87605 1608 Walnut Street, 19t~ Floor Philadelphia, PA 19103 (215) 893-9300 ESSIS AND SONS, INC. PLAINTIFF VJ STEVEN GOFF AND TINA GOFF, H/W DEFENDANTS Attorneys for the Plaintiff Essis and Sons, Inc. : COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PA : : : NO. 02-1582 Civil Term : : : CERTIFICATE OF SERVICF I, Emily L, Kaplan, Esquire, attorney for the defendant Essis and Sons, Inc., do hereby certify that on this 31"t day of May 2002, I served, via First Class Mail, a copy of the attached: Plaintiff's Response to Defendants' Preliminary Obiections Upon: Thomas O. Williams, Esquire Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011 Z:~.LK~ssisand Sons v. Goff~cos.doc EXHIBIT "2" LEXSEE 37 Pa. D. & C.4th 196 Potts v. Consolidated Rail Corp. no. GD98-4502 COMMON PLEAS COURT OF ALLEGHENY COUNTY, PENNSYLVANIA 37Pa. D. & C. 4th 196; 1998Pa. D. & C. LEXI$ $2 September 21, 1998, Decided COUNSEL: [**1] Allen N. Brunwasser, for plaintiff. Craig M. Lee, for defendants. JUDGES: WETTICK, J. OPINIONBY: WETTICK OPINION: Pa.R.C.P. 4001(c), 4007.3, 4011(b), and 4012 govern precomplaint discovery. Rule 4001(c) provides that "subject to the provisions of this chapter, any party may take the testimony of any person, including a party, by deposition upon oral examination or written interrogatories for ... preparation of pleadings ...." Rule 4007.3 peri, its the court upon motion to issue orders involving the sequence and timing of discovery "for the convenience of parties and witnesses and in the interests of justice." Rule 4011 (b) provides that no discovery shall be permitted which "would cause unreasonable annoyance, embarrassment, oppression, burden or expense to the deponent or any person or party." Rule 4012 provides that "upon motion by a party ... and for good cause shown, the court may make any order which justice requires to protect a party or ['199] [**3] person ~om unreasonable annoyance, embarrassment, oppression, burden or expense." I have never issued an opinion addressing the scope of precompiaint discovery. Within the past year on most Fridays, I have received at least one motion for a protective order seeking a court order staying discovery until the pleadings are closed. Usually, the motion is filed by a defendant who contends that a complaint should be filed before either party engages in discovery. The second most common situation involves discovery sought either by a plaintiff or a defendant while preliminary objections are pending. Upon presentation of these motions, I advise counsel that I ordinarily stay discovery until the pleadings are closed unless the party seeking the discovery can show a compelling reason. There are exceptions to this rule where the discovery request is narrow and the production of the information that is sought will not cause annoyance, embarrassment, oppression, burden or expense to the responding party. Consider, for example, a discovery request in which the plaintiff seeks a copy of the plaintiffs written employment agreement with the defendant or a plaintiffs request for his or her medical ]*'4] records to a medical provider. For several reasons, the interests of justice are furthered by a court order barring discovery for the preparation and trial of the case until the plaintiffs complaint has been filed, the defendant's preliminary objections to the plaintiffs complaint have been resolved, and the defendant has filed an answer to the complaint, nl nl This opinion addresses general docket cases filed in this court that will not be tried until at least nine months after the case is placed at issue. This opinion does not address discovery in arbitration proceedings that may be scheduled for trial within three to four months after the filing of the complaint, in landlord-tenant proceedings that may be scheduled for trial within one month of the filing of the complaint, in equity actions that will be promptly resolved, or in any other expedited proceedings. 37 Pa. D. & C.4th 196, *; 1998 Pa. D. & C. LEXIS 52, ** Page 2 [*200] First, a defendant should have the opportunity to show that the claims raised in the complaint fail to state a cause of action before [**5] responding to discovery involving these claims. Second, a party should not be required to engage in discovery until the pleadings containing the averments of fact upon which a plaintiffs claims and a defendant's defenses are based have been filed. Pennsylvania has rejected notice pleading; the purpose of the requirement of the Rules of Civil Procedure that the parties plead material facts is to narrow the factual issues. Thus, the discovery rules should be applied in a manner consistent with these pleading rules that are based on the premise that discovery will be narrowed if the contours of the dispute are initially defined through fact pleading. Third, Pa.R.C.P. 4003.1 permits a party to obtain discovery of matters relevant to the subject matter involved in a pending action. Until a complaint has been filed that meets the specificity requirements of the Pennsylvania Rules of Civil Procedure, a defendant and a court may not be in a position to determine whether the discovery which the plaintiff seeks involves matters relevant to the subject matter involved in the pending action. Fourth, prior to the filing of the complaint, a plaintiffs counsel will have had the opportunity to [**6] discuss the case with the plaintiff and with witnesses favorable to the plaintiff, to review documents in the control of the plaintiff, and to consider the legal issues that will govern the litigation. Counsel for the defendant may ['201] not have any knowledge of the claim until after the lawsuit is commenced. Consequently, the rules governing discovery should be applied to give a defendant's counsel sufficient time to determine the nature of the dispute before responding to extensive discovery requests. In most oral arguments involving a defendant's motion to bar discovery until a complaint is filed, I advise the plaintiff's counsel that he or she is already in a position to file a comPlaint on the basis of the description of the lawsuit that the plaintiffs counsel offers at the oral argument. Frequently, I receive one of the following responses to my statement that the plaintiff should file a complaint. The plaintiffs counsel may state that he or she needs to engage in discovery because possibly the discovery will show that the defendant is not legally responsible for the plaintiffs harm n2 or the plaintiffs counsel may state that the defendant will file preliminary objections [**7] seeking greater specificity if the complaint is filed without additional discovery. n2 One attorney representing a defendant responded to this argument by stating that she "no longer believes in the tooth fairy." My response to the first argument is that it should be the defendant's call. My response to the second argument is that if preliminary objections raising insufficient specificity are sustained, I will permit the discovery that is necessary for the preparation of the amended complaint. In this case, plaintiffs counsel contends that the reslrictions which I impose on precomplaint discovery are inconsistent with rulings of the Pennsylvania appellate courts and opinions involving precomplaint discovery that I have issued. I disagree. [*202] The appellate courts have recognized that precomplaint discovery is permitted. Gallucci v. Phillips & Jacobs Inc., 418 Pa. Super. 306, 314, 614 A.2d 284, 288-89 (1992); Lombardo v. DeMarco, 350 Pa. Super. 490, 495-96, 504 A.2d 1256, 1258-59 (1985,); [**8] Spain v. Vicente, 315 Pa. Super. 135, 141 n. 2, 461 A.2d 833, 836 n.2 (1983); Gross v. United Engineers and Constructors Inc., 224 Pa. Super. 233, 237, 302 A.2d 370, 372 (1973,). However, the appellate courts have never discussed the limitations that may be placed on precomplaint discovery because they have never considered a ruling of a trial court that either permitted precomplaint discovery to which a defendant objected or denied a plaintiffs request for precomplaint discovery. I have considered discovery requests before the pleadings are closed in Cowell v. Borough of Penn Hills, 34 D.&C. 3d 539 (C.P. Allegheny 1982), and in Pennsylvania Manufacturers Association Insurance Co. v. Indyk, 7 D.&C. 3d 333 (C.P. Allegheny 1978,). In Cowell, I considered only two issues: whether the rules permit precomplaint discovery and whether the police depautment's internal investigative files of incidents involving a police officer's alleged improper use of force are protected from discovery under Rule 4011. In that case, the defendants never raised the argument that the discovery was unnecessary for the filing of a complaint. [**9] n3 Consequently, my ruling permitting discovery was based on my rejecting the defendants' position that the discovery [*203] rules require that a complaint be filed before a plaintiff may obtain any discovery and that Rule 4011 does not protect police department records from a discovery request made by the person injured in the incident. n3 In all likelihood, defendants did not raise the issue that the discovery was unnecessary for the preparation of the pleadings because police Page 3 37 Pa. D. & C.4th 196, *; 1998 Pa. D. & C. LEXIS 52, ** officers fi.om as many as six municipalities may have been present at the shopping center where the incident occurred and the plaintiffs counsel sought documents to discover which police officers and police depa~hnents were involved in the incident for purposes of preparing a complaint. In Pennsylvania Manufacturers Association Insurance Co. v. Indyk, supra, the issue that I addressed was whether a plaintiff may depose a defendant in order to gather facts to amend a complaint which is being challenged by the defendant [**10] through preliminary objections. In that case, the defendant, citing Gross v. United Engineers and Constructors Inc., supra, argued that the rules permit only discovery that will assist in the preparation of the initial complaint and discovery after the pleadings are completed; the rules do not permit discovery that will aid in the preparation of an amended complaint. I rejected this argument, stating that the rules permit a plaintiff whose complaint is being challenged for failure to plead with sufficient particularity facts upon which the cause of action is based to engage in discovery which will substantially aid in the preparation of an amended complaint. In this opinion, I stated: "Moreover, we believe that discovery prior to the filing of a complaint should be discouraged because a defendant who is served only with a writ of summons and a notice of deposition cannot effectively prepare for the deposition and has little basis for challenging the relevancy of any question. Thus, we should construe Pa.R.C.P. 4007 to require plaintiff, whenever possible, to file and serve prior to discovery a complaint which sets forth any facts presently known to plaintiff and permit [**11] discovery to aid in the preparation of an amended complaint which will include those missing facts for which discovery is necessary .... Obviously, we cannot protect defendants in this manner while protecting plaintiffs [*204] right to engage in discovery to aid in the preparation of the complaint if we accept defendants' construction of Pa.R.C.P. 4007." Id. at 337-38. (citation omitted) The restrictions that I impose on precomplaint discovery are similar to restrictions that trial courts have imposed on precomplaint discovery under the previous Rules of Civil Procedure governing depositions and discovery as well as under the existing rules, n4 Most common pleas court opinions addressing precomplaint discovery require the plaintiff to show that a complaint cannot be drafted without the discovery which the plaintiff seeks. See Anderson v. PennDOT, 47 D.&C. 3d 429, 431 (C.P. Cumberland 1987), and cases cited therein; 9 Goodrich-Amram 2d § 4001(c):4 at 123 (1993) ("In order to be entitled to take a deposition or to obtain discovery as an aid in the preparation of a pleading as authorized by Rule 4001(c), the party must show that the pleading cannot be prepared [*'12] absent such a deposition."). n4 According to the explanatory note--1978 to Rule 4001, the 1978 amendments were not intended to change the permissible purposes of discovery. In the present case, plaintiff has not met her burden of establishing that the discovery which she seeks is necessary in order to file a complaint setting forth any valid causes of action. For these reasons, I enter the following order of court: ORDER Upon consideration of defendants' motion for a protective order, it is hereby ordered that defendants need not respond to the precomplaint discovery submitted by plaintiff. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Plaintiff Essis and Sons, Inc.'s Response to Defendants' Motion to Compel Answers to Interrogatories and Requests for Production and Motion for Protective Order was served this date by U.S. mail, first class, postage prepaid, upon the following: DATE: Thomas O. Williams, Esquire Reager & Adler, P.C. 2331 Market Street Camp Hill, PA~1-4642 ESSIS AND SONS, INC., : Plaintiff : : vs. : 02-1582 CIVIL : STEVEN GOFF AND TINA GOFF, his wife, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW IN RE: DEFENDANTS' MOTION TO COMPEl, .ORDER AND NOW, this ~4"~ day of August, 2002, a brief argument on the within motion to compel is set for Thursday, October 3, 2002, at 1:30 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, June J. Essis, Esquire For the Plaintiff Thomas O. Williams, Esquire For the Defendants ess, J. :rim ESSIS AND SONS, INC., : Plaintiff : : vs. : 02-1582 CIVIL : STEVEN GOFF AND TINA : CIVIL ACTION - LAW GOFF, his wife, : Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IN RE: DEFENDANTS' MOTION TO COMPEL ORDER AND NOW, this /6' day of September, 2002, argument on the within motion to compel set for October 3, 2002, is continued to Wednesday, October 30, 2002, at 1:30 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, ,('June J. Essis, Esquire For the Plaintiff Hess, J. Thomas O. Williams, Esquire For the Defendants :rlm FINEMAN & BACH, P.C. BY: JUNE J. ESSIS, ESQUIRE I.D. No. 54183 1608 Walnut Street, 19th Floor Philadelphia, PA 1910;3 (215) 893-9300 Attorneys for the Plaintiff Essis and Sons, Inc. ESSIS AND SONS, INC. 6220 Carlisle Pike Mechanicsburg, Pennsylvania 17050 PLAINTIFF V. STEVEN GOFF AND TINA GOFF, H/W 235 Fickes Road Dillsburg, Pennsylvania 17019 DEFENDANTS COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 02-1582- Civil Term CERTIFICATE OF SERVICE I, June J. Essis, Esquire, attorney for Plaintiff, certify that a tree and correct copy of Plaintiff Essis and Sons, Inc.'s Answers and Objections to Defendants' Interrogatories and Plaintiff Essis and Sons, Inc.'s Answers and Objections to Defendants' Request for Production of Document was served on October 23, 2002 by U.S. mail, first class, postage prepaid, upon the following: Thomas O. Williams, Esquire Attorney for Defendants Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 1701 lf516~2 F ~" & BA . BY: ~'flUne J. Essis~/~sq~e b/ Attorney roll.tiff Date: October 25, 2002 FINEMAN & BACH, P.C. BY: JUNE J. ESSIS, ESQUIRE I.D. No. 54183 1608 Walnut Street, 19th Floor Philadelphia, PA 19103 (215) 893-9300 ORIGINAL Attorneys for the Plaintiff Essis and Sons, Inc. ESSIS AND SONS, INC. 6220 Carlisle Pike Mechanicsburg, Pennsylvania 17050 PLAINTIFF V. STEVEN GOFF AND TINA GOFF, H/W 235 Fickes Road Dillsburg, Pennsylvania 17019 DEFENDANTS COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO,, 02-1582 - Civil Term ORDER TO SETTLE~ DISCONTINUE AND END TO THE PROTHONOTARY: Kindly mark the above captioned matter settled, ended and discontinued upon payment of your costs only. FINEMAN & BACH, P.C. J~u~q J. Ess~s, Esquire ' Att6mey for Plaintiff