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HomeMy WebLinkAbout06-5145 . " MU CHING CHU, and HSIU LIN TSENG Plaintiff : IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 00 -;/~S- INEQUITY JIAN FEI XIAO Defendants : Corporate Dissolution /15 Pa.C.S. ~ 1981 : EQUITY ACTION NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by 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 ajudgrnent may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAYBE ABLE TO PROVIDE YOU WITH INFORAMTION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. . Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Phone: (717) 249-3166 (800) 990-9108 AMERICANS WITH DISABILITIES ACT OF 1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the Court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the Court. All arrangements must be made at leli\St 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. . " MU CHING CHU, and HSIU LIN TSENG Plaintiff : IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. lj (, -5'J'l5' IN EQUITY nAN FEI XIAO Defendants : Corporate Dissolution /15 PaC.S. ~ 1981 : EQUITY ACTION COMPLAINT IN EOUlTY AND NOW, comes Mu Ching Chu and Hsiu Lin Tseng, by and through their counsel, Karl E. Rominger, Esquire, in support of their Complaint in Equity seeking the winding down and dissolution of the Carlisle Super Buffet, Inc., pursuant to 15 Fa.C.S. ~ 1981 and other applicable statutory sections, avers as follows: THE PARTIES 1. Plaintiffs Mu Ching Chu and Hsiu Lin Tseng are adult individuals of Carlisle Pennsylvania, who each own, each separately, 25% of the shares in Carlisle Super Buffet, Inc., for a total interest of 50%. 2. Plaintiffs Mu Ching Chu and Hsiu Lin T$eng are also Directors, and Chu is the President of the Carlisle Super Buffet, Inc. 3. Defendant, Jian Fe Xiao, address unknown, is an owner of 50% of the shares of Carlisle Super Buffet, Inc. 4. Carlisle Super Buffet, Inc. is a corporation under the laws of Pennsylvania with its principle place of business in Carlisle, P A, where it operates an Asian themed buffet restaurant facility. JURISDICTION & VENUE 5. The Carlisle Super Buffet, Inc. (hereinafter BUFFET) is based in Cumberland County, operates in Cumberland County, and has a registered address of 318 Acre Drive, Carlisle, P A 17013. 6. This Court has power to hear this matter under Title 15 of the Consolidated Statutes as a matter in equity, and can issue preliminary injunctions and the like. See 15 PaC.s. ~ 1984. FACTS & HISTORY 7. The BUFFET has three primary shareholders and much of the corporate and actual work duties are divided between these three individuals. 8. Shareholders Xiao and Chu have provided most of the day to day labor, management and expertise, and have acted as the principals since the inception, with some help and participation by Tseng. 9. Essentially Chu and Xiao intended to create a corporate structure, in which they would provide the day to day management and expertise to make the BUFFET a successful business concern, as well as act as the principle employees. 10. Shortly after the business's inception and beginnings of operation, a conflict arose between Chu and Xiao, and the two have not been on agreeable terms since. 11. There have been several instances of excessive drinking by Xiao, as well as threatening behavior, some directed at Chu, and some at others, which have necessitated the intervention of the Carlisle Police. 12. Nonetheless, a working arrangement developed, which has been followed until recently. 13. Xiao took over the back of the house, providing all cooking, the creation of proprietary and secret sauces, and handling of all the purchasing of food, as well as being solely in charge of hiring the kitchen staff. 14. Chu took over the business books, the front of house management, the ringing of customers, the greeting of customers, and the hiring of the front of house wait staff. 15. This arrangement has lasted until recently. RECENT EVENTS 16. A series of recent events have occurred which necessitate this action. 17. Xiao has removed himself from the jurisdiction, without adequate explanation, and abandoned his duties at the restaurant, as of approximately August 21, 2006. 18. At the time Xiao left, he took over $30,000 of the restaurant proceeds with him, which were all part of the August sales, and which monies are needed to maintain the business. 19. Chu reported this to the Carlisle Police as a possible theft. 20. Xiao's wife has spoken with Chu, and she claimed Xiao was in the hospital, but no medical documentation has been produced. 21. Later when Xiao spoke directly with Chu, he claimed he would not be returning to the area, as he was afraid because he had no green card, and Chu had involved the police. 22. Xiao has also given Chu's cell phone number to various suppliers who are now calling Chu telling him that Xiao has said that Chu is now the one to deal with. 23. Historically the restaurant has operated without a loss, but most of the monthly proceeds are necessary to cover food costs, labor, and overhead, including a lease of approximately $9,000.00 per month. 24. Xiao had hired kitchen employees who speak a dialect unknown to Chu, and Chu has had trouble communicating with the kitchen staff. 25. Further, the flavorings and sauces now in use are known only to Xiao, as he would make them in secret, in the cooler, and as such, none of the kitchen staff, nor Chu can duplicate the exact flavors which the customers have come to like and expect. 26. Since August 21, 2006 the restaurant kitchen has been without the daily labor and oversight of Xiao, Xiao's purchasing knowledge, as well as the labor Xiao's wife provided, which was substantial. 27. Chu attempted to run the restaurant in Xiao's absence, and was able to maintain operation only until Sunday September 3, 2006. 28. As of September 4, 2006 a sign on the door advises customers that kitchen renovations are being undertaken, and this will prevent harm to the goodwill of the business for only a week at most. 29. Chu can no longer keep the restaurant open, without Xaio, or a replacement for him, as the work load is too great for one principal, and it has been difficult for Chu to discover all that Xiao did, and for Chu to take over the kitchen. 30. Chu had to put some of his own money into paying the employees for August, because of the monies missing and unaccounted for. 31. The kitchen staff, without Xiao, and realizing that money was short, has returned to New York City, where Xiao apparently recruited them from. 32. The restaurant can still be viable, but it must be reopened quickly, or sold, and it now appears unlikely that Xiao will ever return, or provide the monies taken back to the corporation. 33. If the restaurant cannot pay its lease bill for the space for 30 days, all of the shares of the corporation revert to the personal guarantor, which is Chu, and Xiao will loose all of his rights and interest in the company. 34. Xiao has a lawyer in Philadelphia, one Eleanor Chen, who claims to be in communication with him, but all attempts to broker his return, or a sale of either party's equity to the other has failed, and a resolution between the parties seems unlikely. RELIEF REOUESTED 35. Granting appointment of a receiver to sell the business intact, or in parts, is in the best interest of all the parties, as the value of the restaurant will continue to decline as long as it stays closed. 36. The desertion and malfeasance of Xiao make continuing this employee shareholder corporation impossible, and dissolution of the corporation and the sale of its assets will prevent waste to the shareholders as well as creditors. 37. This Court has the power to appoint Chu as a permanent receiver, after hearing, and to empower him to sell the business. 38. If the Court prefers not to appoint Chu, but another, it is requested that a professional CPA be appointed receiver, and Plaintiffs suggest Steve Kaufman of Smith, Elliot, and Kearns. 39. A public auction is the best means of ensuring fair market value for the business and lor it's assets. WHEREFORE Plaintiffs request this Honorable Court grant their request, appoint a receiver, in the person of Mr. Chu, or in the alternative a CPA, and enter an order allowing for the scheduling of a public auction and sale of the business in whole if possible, or that the Corporation be liquidated if necessary, upon further request of the receiver. Respectfully submitted, ROMINGER & WHARE DateJ;./ I r L 006 , . ? Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, P A 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Plaintiff " MU CHING CHU, and HSIU LIN TSENG Plaintiff : IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA v. :NO. IN EQUITY RAN FEI XIAO Defendants : Corporate Dissolution 115 Pa.C.S. ~ 1981 : EQUITY ACTION VERIFICATION Karl E. Rorninger, Esquire, states that he is the attorney for Mu Ching Chu and Hsiu Lin Tseng, Plaintiffs in this action; that he makes this affidavit as attorney because he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa. C.S. Pa.C.S. ~4904, relating to unsworn falsification to authorities. Date: ~;/r .J , 2-00/ ? Karl E. Rominger, Esquire Attorney for Plaintiffs / MU CHING CHU, and HSIU LIN TSENG Plaintiff : IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYL VANIA v. : NO. IN EQUITY JIAN FEI XIAO Defendants : Corporate Dissolution 115 Pa.C.S. ~ 1981 : EQUITY ACTION CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, attorney for Plaintiff's do hereby certify that I this day served a copy of the Complaint in Equity upon the following by facsimile and depositing the same in the United States mail postage prepaid, first class, addressed as follows: Eleanor H. Chen, Esquire 1004 Arch Street, 2nd Floor Philadelphia, Pennsylvania 19107 (215) 829-060 I Respectfully Submitted, Rominger & Wbare Date: S e;rf. ~ L O?lt" :7 Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Plaintiff ..,..,. ~ &- ~ w ~ -....I ~ a. ~ , \ ~ """Q," ?-....T.,....^ :7 ,:,.;, G:r. .>' ~;r :P~-; ::-=1 -< ...... ?- ~ -<; ~ <> ~ - .,; ~ 4- 't:: ~ l' o C --:','" "" = = 0" (/) p'l. -0 1 (./1 ~ :r:n n1f-~ -nlTi ur-,CJ S~; (~_l ",-""1"', 0.;:' ~;1 (,) t~) .':m r::) -{ ;:; ,< ~?: >.f) N CO MU CHING CHU, and HSIU LIN TSENG Plaintiff : IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 0(,- SI'" IN EQUITY JIAN FEI XIAO Defendants : Corporate Dissolution 115 Pa.C.s. ~ 1981 : EQUITY ACTION MOTION FOR E,MERGENCY INJVNCTIQN I APPOINTMENT OF RECEtyER AND NOW, comes Mu Ching Chu -and Hsiu Lin Tseng, by and through their counsel, Karl E. Rominger, Esquire, in support of their MOTION FOR EMERGENCY INJUNCTION I APPOINTMENT OF RECEIVER avers as follows: THE PARTIES 1. Plaintiffs Mu Ching Chu and Hsiu Lin Tseng are adult individnals of Carlisle Pennsylvania, who each own, each separately, 25% of the shares in Carlisle Super Buffet, Inc., for a total interest of 50%. 2. Plaintiffs Mu Ching Chu and Hsiu Lin Tseng are also Directors, and Chu is the President of the Carlisle Super Buffet, Inc. 3. Defendant, ]ian Fe Xiao, address unknown, is an owner of 5OUlo of the shares of Carlisle Super Buffet, Inc. 4. Carlisle Super Buffet, Inc. is a corporation under the laws of Pennsylvania with its principle place of business in Carlisle, PA, where it operates an Asian themed buffet restaurant facility. JURISDICTION & VENUE 5. The Carlisle Super Buffet, Inc. (hereinafter BUFFET) is based in Cumberland County, operates in Cumberland County, and has a registered address of 318 Acre Drive, Carlisle, PA 17013. 6. This Court has power to hear this matter under Title 15 of the Consolidated Statutes as a matter in equity, and can issue preliminary injunctions and the like. See 15 Pa.C.S. ~ 1984. 7. A Complaint has been filed simultaneous hereto in Equity, at this docket, and is incorporated by reference as if fully setout herein. EMERGENCY RELIEF REOl,JlRED 8. A series of recent events have occurred which necessitate this action. 9. Xiao has removed himself from the jurisdiction, without adequate explanation, and abandoned his duties at the restaurant, as of approximately August 21, 2006. 10. At the time Xiao left, he took over $30,000 of the restaurant proceeds with him, which were all part of the August sales, and which monies are needed to maintain the business. 11. Historically the restaurant haS operated without a loss, but most of the monthly proceeds are necessary to cover food costs, labor, and overhead, including a lease of approximately $9,000.00 per month. 12. Further, the flavorings and sauces now in use are known only to Xiao, as he would make them in secret, in the cooler, and as such, none of the kitchen staff, nor Chu can duplicate the exact flavors which the customers have come to like and expect. 13. Since August 21, 2006 the restaurant kitchen has been without the daily labor and oversight of Xiao, Xiao's purchasing knowledge, as well as the labor Xiao's wife provided, which was substantial. RELIEF REOVESTED 23. Grant an emergency hearing on the appointment of a temporary of permanent receiver. 24. Appoint Chu as a permanent receiver, after hearing, and empower him to sell the business. 25. If service cannot be obtained on Xiao, appoint a temporary receiver in the form of a CPA be appointed, and Plaintiffs suggest Steve Kaufman of Smith, Elliot, and Kearns in Carlisle, P A. 26. Further that the receiver or temporary receiver be empowered to sell the business at public auction WHEREFORE Plaintiffs request this Honorable Court grant their request, appoint a receiver, in the person of Mr. Chu, or in the alternative a CPA, and enter an order allowing for the scheduling of a public auction and sale of the business in whole if possible, or that it be liquidated if necessary, upon further request of the receiver. Respectfully submitted, ROMINGER & WHARE Date:.5etpl- Y; 2.00 (" ? Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Plaintiff MU CHING CHU, and HSIU LIN TSENG Plaintiff : IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYL VANIA v. : NO. IN EQUITY JIAN FEI XIAO Defendants : Corporate Dissolution 115 Pa.C.S. ~ 1981 : EQUITY ACTION VERIFICATION Karl E. Rominger, Esquire, states that he is the attorney for Mu Ching Chu and Hsiu Lin Tseng, Plaintiffs in this action; that he makes this affidavit as attorney becaUSe he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa. C.S. Pa.C.S. ~4904, relating to unsworn falsification to authorities. Date: ~,. r- --S- . 2- 00 (" ..J . Karl E. Rominger, Esquire Attorney for Plaintiffs . MU CHING CHU, and HSIU LIN TSENG Plaintiff : IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. IN EQUITY JIAN FE! XIAO Defendants : Corporate Dissolution 115 Pa.C.S. ~ 1981 : EQUITY ACTION CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, attorney for Plaintiff's do hereby certify that I this day served a copy of the Motion for Emergency Injucdon/Appointment of Receiver upon the following by facsimile and depositing the same in the United States mail postage prepaid, first class, addressed as follows: Eleanor H. Chen, Esquire 1004 Arch Street, 2nd Floor Philadelphia, Pennsylvania 19107 Facsimile (215) 829-0601 Respectfully Submitted, Rominger & Wbare Date: ~,.r">;2 Co.( ,/ ? Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Plaintiff 0 "" 0 <="" c = .." "" 5: (/) -::1 vl'Y :1_;:n ry-: (~' 1"1 ":;'>' -0 nl,.-- ~';:-~ I -O;T' :~J'( U1 C)( ) ~::: , , ::-j-T', ",. -J- "I , '\ ._."~ ~':'.:._ I ::1: ','0 <, Cjrll -;t"C: '-!? ---{ ;:-'" ~ -:3 L) ~ c:: '< RECEIVED SEP 0 5 2006 ~ MU CHING CHU, and HSIU LIN TSENG Plaintiff : IN THE COURT OF COM :CUMBERLAND COUNTY, PENNSYLVANIA v. 01.. 5/'1t :NO. IN EQUITY JIAN FEI XIAO Defendants : Corporate Dissolution 115 Pa.C.S. ~ 1981 : EQUITY ACTION ORDER OF COURT AND NOW, this ~ day of _~;m.L,A- ,2006, in consideration of the within Motion for Emergency InjuctionlAppointment of Receiver, it is hereby ordered that a hearing will be held on the /tti day of ~~~,/A..., ,2006, atl: 30 o'clock +.m. in Courtroom # 'I at the Cumbetland County Courthouse in Carlisle, Pennsylvania. Ai J. Distribution: Karl E. Rominger, Esquire 155 . South Hanover Street Carlisle, Pennsylvania 17013 q-~-o(, (],j!(,o ~ ,y4S Eleanor H. Chen, E~uire 1004 Arch Street, 2n Floor Philadelphia, Pennsylvania 191 7 V!N~m)8NNjd i "'no^. "', '~'""'^'n" 1"I..jJ"V" ) ,: ..'!.:C)'>a v SS :01 Wit s- d3S 900l IUV'O''''''''' 'd ::IHL;:/O 1\0 VJ.. j ','l.Jr!..iUU ~ ' 38I:UQ'G:lll::J MU CHING CHU, and HSIU LIN TSENG Plaintiff : IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 06-5145 IN EQUITY JIAN FEI XIAO Defendants : Corporate Dissolution/ 15 Pa.C.S. ~ 1981 : EQUITY ACTION ORDER OF COURT AND NOW, this I'IY day of September, 2006, in consideration of the agreement of the parties, as filed to this docket, all of the shares of Jian Fei Xiao in the Carlisle Super Buffet, Inc. are forever transferred to Mu Ching Chu. Further, Mu Ching Chu is Ordered to pay $120,000.00 in cash or certified funds within twenty (20) days of the date hereof, to Jian Fei Xiao as consideration for said transfer, as was agreed to by the parties. This matter is to be marked settled and discontinued once the consideration has been paid. . A)..., J. Distribution: Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 Eleanor H. Chen, Es~uire 1004 Arch Street, 2" Floor Philadelphia, Pennsylvania 19107 4>tf/-tk ~ ~ JTD Henry Lee F ong, Esquire 7-8- Chatham Square, Suite 503 New York, New York 10038 611 : I II 1-1'" IV)"'l r) ." -'U'U .....J.... J A i:J\11(.;.