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HomeMy WebLinkAbout06-5539 JOEL P. DINCHER, Plaintiff, V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. DLL - S.S l a4mi DAVID J. THOMAS, 1851 RESTAURANT COMPANY, LLC, : CIVIL ACTION - LAW and EQUITY and 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC Defendants. JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT, If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013-3308 (717) 249-3166 JOEL P. DINCHER, : IN THE COURT OF COMMON PLEAS Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA V. :No. O G - S93 Cus-! ??- DAVID J. THOMAS, 1851 RESTAURANT COMPANY, LLC, : CIVIL ACTION - LAW and EQUITY and 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC Defendants. JURY TRIAL DEMANDED COMPLAINT AND NOW, comes Plaintiff Joel P. Dincher, by and through his attorney, Mark K. Emery, Esquire, and files this Complaint as follows: Plaintiff Joel P. Dincher is an adult individual currently residing in New Jersey. 2. Defendant David J. Thomas, (hereinafter "Thomas")is an adult individual with a last known address of 1540 Waterford, Camp Hill, Pennsylvania 17011. 3. Defendant 1851 Restaurant Company, LLC (hereinafter "1851 ") is a Pennsylvania Foreign Limited Liability Company with a registered address of 1851 Arsenal Boulevard, Harrisburg, Pennsylvania 17103. 4. Defendant 6108 Carlisle Restaurant Company, LLC, (hereinafter "6108") is a Pennsylvania Limited Liability Company with a registered address of 212 Locust Street, Suite 500, Harrisburg, Pennsylvania 17101. 5. In or about April of 2003 Thomas approached Plaintiff and inquired if Plaintiff would be interested in forming a partnership to own and operate restaurants in the Harrisburg area. 6. Plaintiff and Thomas were acquainted as Plaintiff was the executive chef at the Maverick Steak House, a restaurant owned by1851. 7. Thomas offered to Plaintiff a twenty-five percent (25%) ownership interest in any restaurant entity the two formed and operated together. 8. Thomas was a Member of 1851, which owned and operated the Maverick Restaurant. 9. The offer by Thomas was made in his apparent and assumed capacity as the managing Member or otherwise authorized agent for 1851. 10. Thomas stated to Plaintiff that he would have to wait until after 1851's liquor license was transferred to a new restaurant prior to formally providing Plaintiff his ownership interest in the business. 11. Plaintiff accepted the offer from Thomas and commenced efforts to locate a suitable property for purchase or development as a restaurant. 12. Plaintiff justifiably relied upon the oral agreement reached between him and Thomas in commencing substantial work and preparation for the opening of a new restaurant. 13. Plaintiff commenced efforts and located a restaurant, formerly known as Salvatores, located on Eisenhower Boulevard as a potential site for the new restaurant. 14. Plaintiff commenced efforts to redesign the restaurant and develop a menu and business plan. 15. Thomas, acting individually and on behalf of 1851, held Plaintiff out as an owner of the restaurant. 16. Plaintiff, justifiably relying upon the representation that he had an ownership interest in the business entities, acted as a guarantor on the loan provided by Integrity Bank to 1851. 17. 1851 utilized Plaintiffs reputation as a chef to market the restaurant. 2 18, Thomas and 1851 was well aware that the restaurant's success would be based upon the reputation of its executive chef. 19. 1851 obtained substantial benefit due to the wide spread public belief that Plaintiff had an ownership interest in the restaurant. 20. In or about December 2003 the new restaurant, known as "Pesce", opened for business. 21. In or about the same time Plaintiff and Thomas made a decision to open a second restaurant on the West Shore. 22. Plaintiff expended considerable time and effort, without remuneration, to investigate and explore potential sites for such new restaurant. 23. Plaintiff and Thomas determined to lease property located at 6108 Carlisle Pike, Cumberland County, Pennsylvania. 24. Plaintiff then commenced to perform services in the nature of restaurant and menu design based upon the promises of the Defendants. 25. 6108 utilized plaintiffs work and services in opening a restaurant known as "Juliana's" at the 6108 Carlisle Pike address. 26. Based upon information and belief , from the time it opened for business to the present, Thomas has failed to perform his duties and has breached his fiduciary duty to 1851, 6108 and their other members. 27. Upon information and belief, Thomas has improperly removed business funds and assets for his personal use. 28. Upon information and belief, Thomas has consistently failed to properly handle the financial matters of the restaurants, including failing to pay vendors and engaging in 3 certain financial transactions, which have affected the restaurants ability to conduct business and otherwise negatively impacted the reputation of the restaurants. COUNTI BREACH OF CONTRACT PLAINTIFF vs. ALL DEFENDANTS 29. Paragraphs 1 through 28 are incorporated fully herein by reference. 30. Defendant offered and Plaintiff accepted a twenty-five percent (25%) interest in all restaurant entities formed and operated by the parties or their business entities. 31. Plaintiff performed all services in the nature of acting as executive chef and designing the physical layout of the restaurants and menus. 32. Thomas made repeated assertions that Plaintiff was a twenty-five percent (25%) owner in the businesses. 33. Defendants came to benefit through the use of Plaintiffs good name and reputation in the area. WHEREFORE, Plaintiff respectfully requests this Honorable Court enter judgement for him and against Defendants and further award specific performance of the oral contract making Plaintiff twenty-five percent (25%) owner in both 1851 and 6108, or alternatively, award a monetary judgment of 25% of the value of the business entities, plus pre and post judgment interest. COUNT H UNJUST ENRICHMENT PLAINTIFF vs. ALL DEFENDANTS 34. Paragraphs 1 through 33 are incorporated fully herein by reference. 35. Plaintiff provided and Defendants accepted services in the nature of executive chef and 4 representative of the restaurants. 36. Defendants accepted such services without additional remuneration that would be due for such services. WHEREFORE, Plaintiff respectfully requests this Honorable Court enter judgement for him and against Defendants and award a monetary judgment of 25% of the value of the business entities, plus pre and post judgment interest, or alternatively, an award of such amount as to the fair market value of Plaintiff s services. COUNT III ACCOUNTING PLAINTIFF vs. ALL DEFENDANTS 37. Paragraphs 1 through 36 are incorporated fully herein by reference. 38. It is believed and therefore averred that Defendant, Thomas, has mismanaged and misused the funds of the restaurants. 39. Based upon the above, Plaintiff requests an accounting be ordered. WHEREFORE, Plaintiff respectfully requests this Honorable Court order an accounting of 1851 and 6108 to determine the fair market value of such business entities. COUNT IV FRAUD PLAINTIFF vs. ALL DEFENDANTS 40. Paragraphs 1 through 39 are incorporated fully herein by reference. 41. Defendant Thomas, acting individually and on behalf of 1851 and 6108, made material representations regarding the issuance to Plaintiff of 25% ownership interest in any restaurant established by the parties. 42. Such representations were intentionally made in order to induce Plaintiff to work for such 5 entities and lend his name, reputation and expertise to the businesses. 43. Plaintiff justifiably relied upon such representations in providing services to the restaurants, at times without remuneration, lending his name and reputation to such entities, and guaranteeing loans made to the entities. 44. Plaintiff has been damaged as he was not paid for services rendered, and has not been provided an ownership interest in the businesses. WHEREFORE, Plaintiff respectfully requests this Honorable Court enter judgment for him and against Defendant in an amount equal to 25% of the fair market value of the businesses. Respectfully submitted, LAW OFFICES OF MARK K. EMERY By:j?. Mark K. Emery, Esquire Supreme Court I.D. No. 72787 410 North Second Street Harrisburg, PA 17101 (717) 238-9883 Attorney for Plaintiff DATE: September 22, 2006 6 VERIFICATION I, Joel P. Dincher, hereby verify that I have read the foregoing Complaint and that the information contained therein is true and correct to the best of my knowledge, information and belief. I understand that false statements herein are subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. Joel P. Dincher DATE: q// -I / 0 (?' I -----.-. 7 t7 - \ i t T'O tag y {, co w JOEL P. DINCHER, IN THE COURT OF COMMON PLEAS Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA V. :No. 06-5539 Civil DAVID J. THOMAS, 1851 RESTAURANT COMPANY, LLC, : CIVIL ACTION - LAW and EQUITY and 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC Defendants. JURY TRIAL DEMANDED ACCEPTANCE OF SERVICE I, Peter M. Good, Esquire, accept service of the Complaint on behalf of all Defendants, and certify that I am authorized to do so. DATE: I b BY: ZK 6&V, Peter M. Good, Esquire Smigel, Anderson & Sacks, LLP 4431 North Front Street Harrisburg, PA 17110-1778 (717) 234-2401 C^1 ^`) ?7 _ .,;: +F .. ?? .._...1 I : T i ?..7 r, -;? _. ?? _ =?? .a .. •? SMIGEL, ANDERSON & SACKS, LLP River Chase Office Center 4431 North Front Street, 3rd Floor Harrisburg, PA 17110-1778 (717) 234-2401 Peter M. Good, Esquire I.D. No. 64316 Darryl J. Liguori, Esquire I.D. No. 91715 Attorneys for Defendants JOEL P. DINCHER, IN THE COURT OF COMMON PLEAS Plaintiff, OF CUMBERLAND COUNTY, V. PENNSYLVANIA DAVID J. THOMAS, NO. 06-5539 CIVIL 1851 RESTAURANT COMPANY, LLC, and 6108 CARLISLE PIKE RESTAURANT COMPANY, INC., Defendants. JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Joel P. Dincher, Plaintiff c/o Mark K. Emery, Esquire 410 North Second Street Harrisburg, PA 17101 You are hereby advised to file a written response to the enclosed Preliminary Objections within twenty (20) days from service hereof, or judgment may be entered against you. SMIGEL, ANDERSON & SACKS, L.L.P. Date: October 30, 2006 By: 4c,q, bcNf Peter M. Good, Esquire - ID #64316 Darryl J. Liguori, Esquire - ID #91715 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys for Defendants SMIGEL, ANDERSON & SACKS, LLP Peter M. Good, Esquire River Chase Office Center I.D. No. 64316 4431 North Front Street, 3rd Floor Darryl J. Liguori, Esquire Harrisburg, PA 17110-1778 I.D. No. 91715 (717) 234-2401 Attorneys for Defendants JOEL P. DINCHER, IN THE COURT OF COMMON PLEAS Plaintiff, OF CUMBERLAND COUNTY, V. PENNSYLVANIA DAVID J. THOMAS, NO. 06-5539 CIVIL 1851 RESTAURANT COMPANY, LLC, and 6108 CARLISLE PIKE RESTAURANT COMPANY, INC., Defendants. JURY TRIAL DEMANDED DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW come Defendants David J. Thomas ("Thomas"), 1851 Restaurant Company, LLC, and 6108 Carlisle Pike Restaurant Company, Inc., by and through their attorneys, the law firm of Smigel, Anderson & Sacks, LLP, and makes these preliminary objections to the Complaint filed by Joel P. Dincher ("Dincher") 1. Preliminary Obiection in the Nature of a Demurrer: Counts II and IV 1. The counts against the Defendants include Breach of Contract (Count I), Unjust Enrichment (Count II), Accounting (Count III), and Fraud (Count IV). 2. Dincher alleges that the Defendants breached a contract between Dincher and Thomas to give Dincher a 25% ownership interest in a restaurant. Compl. at 17 and 130. 3. Dincher alleges that the Defendants were unjustly enriched because Dincher was never given a 25% ownership interest as called for by the alleged contract and asks for the 25% ownership interest as a remedy. Compl. at Count II. 4. Dincher also alleges that the failure of Defendants to comply with the terms of the contract amounts to fraud and again asks for a 25% ownership interest as a remedy. Compl. at Count IV. 5. It is well settled under the "gist of the action doctrine" in Pennsylvania that a claim should be limited to a contract claim when the parties' obligations are defined by the terms of the contract and not by the larger social policies embodied by the law of torts. See Yocca v. The Pittsburgh Steelers Sports, Inc., 806 A.2d 936 (Pa. Commw. Ct. 2002) (citing Sunquest Information Systems, Inc. v. Dean Witter Reynolds, Inc., 40 F. Supp. 2d 644, 651 (W.D. Pa. 1999)). 6. As summarized by the Commonwealth Court in Yocca, 806 A.2d at 944: When a plaintiff alleges that the defendant committed a tort in the course of carrying out a contractual agreement, Pennsylvania courts examine the claim and determine whether the "gist" or gravamen of it sounds in contract or tort; a tort claim is maintainable only if the contract is "collateral" to conduct that is primarily tortuous. 7. In the case at bar, Dincher's entire Complaint is based on the failure of the Defendants to comply with the terms of an alleged contract and provide him with a 25% ownership interest. 8. The alleged breach of contract is not collateral to the tortuous conduct; in fact, the breach of contract is the entire dispute that Dincher has with the Defendants. 9. Because the gravamen of the Complaint sounds in contract, not tort, the Defendants ask that the unjust enrichment and fraud counts be dismissed. WHEREFORE, Defendants respectfully requests that the Court strike Counts II and IV of the Complaint because Plaintiff's claims are legally insufficient pursuant to the gist of the action doctrine. II. Preliminary Objection in the Nature of a Demurrer: Count I 10. In Count I, Dincher asserts that an alleged contract has been breached because Thomas failed to provide Dincher a 25% interest in a restaurant entity. 11. To establish a breach of contract, a claimant must show "(1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract, and (3) resultant damages." CoreStates Bank, N.A. v. Cutillo, 723 A.2d 1053 (Pa. Super. 1999). 12. When an oral contract is alleged, it is particularly important to plead the elements of a contract with clarity. Snaith v. Snaith, 422 A.2d 1379, 1382 (Pa. Super. Ct. 1980). 13. Consideration is of course "an essential element of an enforceable contract." Stelmack v. Glen Alden Coal Co., 14 A.2d 127, 128 (Pa. 1940). 14. Dincher fails to plead the existence of the essential terms of the contract he is alleging was breached, including who out of the three Defendants were a party to the contract, what the contract terms were, and, most importantly, what consideration he provided at the time of the bargain. 15. Dincher merely pleads that he was promised a 25% ownership interest in a hypothetical restaurant "entity." 16. As a promise without consideration from both parties is not enforceable as a contract, and because Dincher fails to plead the existence of the essential terms of the alleged contract, the Defendants ask that this count be dismissed. WHEREFORE, Defendants respectfully requests that the Court strike Count I of the Complaint because Plaintiffs claim is legally insufficient. III. Preliminary Objection in the Nature of a Demurrer: Count III 17. In Count III ("Accounting"), Dincher alleges that Thomas has mismanaged restaurant funds and an accounting should be ordered as a remedy. 18. In a Complaint that is essentially a breach of contract action, Defendants assert that an "Accounting" is not a proper cause of action. 19. Furthermore, the only persons that should be permitted an accounting are shareholders, directors, or owners of a corporation. 20. It is clear from the Complaint Dincher is not a shareholder, owner, or director of either of the Defendant limited liability corporations and therefore he should not be entitled to an accounting. WHEREFORE, Defendants respectfully requests that the Court strike Count III of the Complaint because Plaintiff's claim is legally insufficient. IV. Preliminary Objection in the Nature of a Demurrer: All Counts as to Defendant 6108 Carlisle Pike Restaurant Company, LLC 21. Dincher asserts all four counts in the Complaint against all three of the Defendants, including Defendant 6108 Carlisle Pike Restaurant Company, LLC ("6108 Carlisle Pike"). 22. Throughout Dincher's Complaint, he alleges no act or omission to have taken place by 6108 Carlisle Pike which support any of the four counts. 23. Dincher's Complaint is based upon alleged promises made by Thomas when he was a member or agent of Defendant 1851 Restaurant Company, LLC. Compl. at. 117-9. 24. As asserted in Dincher's Complaint, 6108 Carlisle Pike was not even in existence when the alleged promises were made. Compl. at ¶¶ 23-26. 25. Because neither 6108 Carlisle Pike nor any of its agents made any promises or committed any acts or omissions against Dincher, Dincher has failed to plead a cause of action against 6108 Carlisle Pike and it should be dismissed from the Complaint. WHEREFORE, Defendants respectfully requests that the Court dismiss 6108 Carlisle Pike Restaurant Company, LLC as a Defendant in this Complaint because Plaintiff fails to state any cause of action against it. Respectfully submitted, SMIGEL, ANDERSON & SACKS, L.L.P. ??M ?? Date: October 30, 2006 By: Pete r M. Good, Esquire - ID #64316 Darryl J. Liguori, Esquire - ID #91715 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys for Defendants SMIGEL, ANDERSON & SACKS, LLP River Chase Office Center 4431 North Front Street, 3rd Floor Harrisburg, PA 17110-1778 (717) 234-2401 Peter M. Good, Esquire I.D. No. 64316 Darryl J. Liguori, Esquire I.D. No. 91715 Attorneys for Defendants JOEL P. DINCHER, IN THE COURT OF COMMON PLEAS Plaintiff, OF CUMBERLAND COUNTY, V. PENNSYLVANIA DAVID J. THOMAS, NO. 06-5539 CIVIL 1851 RESTAURANT COMPANY, LLC, and 6108 CARLISLE PIKE RESTAURANT COMPANY, INC., Defendants. JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Peter M. Good, Esquire, attorney for the Defendants in the above-captioned matter, certify that I this day served a copy of the foregoing Defendants' Preliminary Objections to Plaintiff's Complaint upon the person(s) indicated below by depositing a copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, and addressed as follows: Mark K. Emery, Esquire 410 North Second Street Harrisburg, PA 17101 Attorney for Plaintiff SMIGEL, ANDERSON & SACKS, L.L.P. Date: October 30, 2006 By: ft,lq Peter M. Good, Esquire - ID #64316 Darryl J. Liguori, Esquire - ID #91715 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys for Defendants r'"? ??1 n <:=? tf ~k:. . t ?? .:? ?,-3 PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. ------------------------------------------------------------------------------------------------------------------- JOEL P. DINCHER, IN THE COURT OF COMMON PLEAS Plaintiff, OF CUMBERLAND COUNTY, V. PENNSYLVANIA DAVID J. THOMAS, NO. 06-5539 CIVIL 1851 RESTAURANT COMPANY, LLC, and 6108 CARLISLE PIKE RESTAURANT COMPANY, INC., Defendants. JURY TRIAL DEMANDED 1. State matter to be argued: Defendants' Preliminary Objections to Plaintiff's Complaint. 2. Identify counsel who will argue cases: (a) For Plaintiff: Mark K. Emery, Esquire 410 North Second Street Harrisburg, PA 17101 (b) For Defendants: Peter M. Good, Esquire Smigel, Anderson & Sacks, LLP 4431 North Front Street Harrisburg, PA 17110 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: ?G t Date: December 8 2006 BY: Peter M. Good, Esquire - ID #64316 Attorney for Defendants SMIGEL, ANDERSON & SACKS, LLP Peter M. Good, Esquire River Chase Office Center I.D. No. 64316 4431 North Front Street, 3rd Floor Darryl J. Liguori, Esquire Harrisburg, PA 17110-1778 I.D. No. 91715 (717) 234-2401 Attorneys for Defendants JOEL P. DINCHER, IN THE COURT OF COMMON PLEAS Plaintiff, OF CUMBERLAND COUNTY, V. PENNSYLVANIA DAVID J. THOMAS, NO. 06-5539 CIVIL 1851 RESTAURANT COMPANY, LLC, and 6108 CARLISLE PIKE RESTAURANT COMPANY, INC., Defendants. JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Peter M. Good, Esquire, attorney for the Defendants in the above-captioned matter, certify that I this day served a copy of the foregoing Defendants' Praecipe for Listing Case for Argument upon the person(s) indicated below by depositing a copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, and addressed as follows: Mark K. Emery, Esquire 410 North Second Street Harrisburg, PA 17101 Attorney for Plaintiff SMIGEL, ANDERSON 4 SACKS, L.L.P. Date: December 8 2006 By 16- Peter M. Good, Esquire - ID #64316 Darryl J. Liguori, Esquire - ID #91715 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys for Defendants ?1 p -73 } ? r .? Gl'# -17 ,., CA: JOEL P. DINCHER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 06-5539 CIVIL DAVID J. THOMAS, 1851 RESTAURANT COMPANY, LLC, and 6108 CARLISLE PIKE RESTAURANT COMPANY, INC., Defendants JURY TRIAL DEMANDED IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS BEFORE BAYLEY, P.J., AND HESS, J. ORDER AND NOW, this day of March, 2007, following argument thereon, the preliminary objections of the defendants to the plaintiff's complaint are OVERRULED. Xark K. Emery, Esquire For the Plaintiff ?er M. Good, Esquire Darryl J. Liguori, Esquire For the Defendants :rlm BY THE COURT, VINVAIASNN3d oklNfr- :.: ? #N zo ?z Nd 91 NVW LODZ AXI(I%'WUdd 341 :0 SMIGEL, ANDERSON & SACKS, LLP River Chase Office Center 4431 North Front Street, 3rd Floor Harrisburg, PA 17110-1778 (717) 234-2401 Peter M. Good, Esquire I.D. No. 64316 Darryl J. Liguori, Esquire I.D. No. 91715 Attorneys for Defendants JOEL P. DINCHER, IN THE COURT OF COMMON PLEAS Plaintiff, OF CUMBERLAND COUNTY, V. PENNSYLVANIA DAVID J. THOMAS, NO. 06-5539 CIVIL 1851 RESTAURANT COMPANY, LLC, and 6108 CARLISLE PIKE RESTAURANT COMPANY, INC., Defendants. JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Joel P. Dincher, Plaintiff c/o Mark K. Emery, Esquire 410 North Second Street Harrisburg, PA 17101 You are hereby advised to file a written response to the enclosed Answer and New Matter within twenty (20) days from service hereof, or judgment may be entered against you. SMIGEL, ANDERSON & SACKS, L.L.P. Date: April 5, 2007 By: t? Peter M. Good, squire - ID #64316 Darryl J. Liguori, Esquire - ID #91715 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys for Defendants SMIGEL, ANDERSON & SACKS, LLP River Chase Office Center 4431 North Front Street, 3rd Floor Harrisburg, PA 17110-1778 (717) 234-2401 JOEL P. DINCHER, Plaintiff, V. DAVID J. THOMAS, 1851 RESTAURANT COMPANY, LLC, and 6108 CARLISLE PIKE RESTAURANT COMPANY, INC., Defendants. Peter M. Good, Esquire I.D. No. 64316 Darryl J. Liguori, Esquire I.D. No. 91715 Attorn eys for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-5539 CIVIL JURY TRIAL DEMANDED DEFENDANTS' ANSWER WITH NEW MATTER TO PLAINTIFF'S COMPLAINT AND NOW come Defendants David J. Thomas ("Thomas"), 1851 Restaurant Company, LLC, and 6108 Carlisle Pike Restaurant Company, Inc., by and through their attorneys, the law firm of Smigel, Anderson & Sacks, LLP, to file this Answer with New Matter to the Complaint filed by Joel P. Dincher ("Dincher"). 1. Admitted upon information and belief. 2. Denied. Defendant, David Thomas (hereinafter "Thomas") resides at 110 Walnut Street, Lemoyne, Pennsylvania. 3. Admitted. 4. Admitted. 5. Denied. To the contrary, Thomas inquired if the Plaintiff would be interested in working as a chef in a restaurant that Defendant 1851 Restaurant Company (hereinafter "1851 ") was opening. That restaurant was Pesce, located on Eisenhower Boulevard in Harrisburg. 6. Admitted. 7. Denied. To the contrary, Plaintiff was hired as an at-will employee by Thomas to serve as the executive chef at Pesce. 8. Admitted. 9. Denied. To the contrary, there was never an offer of ownership interest in 1851's restaurant(s). 10. Denied. To the contrary, there was never a promise of 25% ownership to the Plaintiff by Thomas. 11. Denied. To the contrary, Thomas informed Plaintiff that he would be the executive chef of the new restaurant once it opened. 12. Denied. The allegations of this paragraph constitute a conclusion of law to which no response is required. To the extent that a response may be required, 1851 paid Plaintiff for any work performed involved with the opening of the new restaurant. 13. Denied. To the contrary, Thomas identified Salvatore's as a potential site for the new restaurant. 14. Denied. To the contrary, Thomas took the lead in the efforts to develop and open the restaurant. By way of further answer, Plaintiff was paid for any and all of his efforts involved in the opening of the restaurant. 15. Denied. To the contrary, Thomas never represented that Plaintiff had any ownership interest in Pesce or 1851. 16. Admitted in part. Denied in part. It is admitted that Plaintiff provided a guarantee to Integrity Bank for a loan to 1851. It is denied that Thomas ever represented that Plaintiff had any ownership interest in Pesce or 1851. 2 17. Denied. To the contrary, Plaintiff did not have a reputation and therefore Plaintiff's name was not part of the marketing efforts. 18. Denied. To the contrary, 1851 and Thomas knew that there were many factors that would impact on the success of the new restaurant. 19. Denied. To the contrary, 1851 and Thomas never represented that Plaintiff had ownership in the restaurant. 20. Admitted. 21. Denied. Plaintiff was not involved in any decision by Thomas to open an additional restaurant. 22. Denied. To the contrary, at all times relevant, Plaintiff was on the payroll of Pesce and was compensated for all time worked. 23. Denied. To the contrary, Plaintiff had no ownership or involvement with 6108 Carlisle Pike Restaurant Company (hereinafter "6108") or its efforts to locate and open a restaurant on the West Shore. 24. Denied. To the contrary, Plaintiff had no involvement in the menu design or the naming of the restaurant on the West Shore. 25. Denied. To the contrary, Plaintiff provided no work or services to the restaurant known as Juliana's. 26. Denied. The allegations of this paragraph constitute a conclusion of law to which no response is required. To the extent that a response may be required, the allegations of this paragraph are denied. 27. Denied. Thomas denies any allegations of impropriety and strict proof thereof is demanded at the time of trial. 3 28. Denied. Thomas denies any allegations of impropriety and strict proof thereof is demanded at the time of trial. COUNTI BREACH OF CONTRACT PLAINTIFF vs. ALL DEFENDANTS 29. This is an incorporation paragraph to which no responsive pleading is required. 30. Denied. The averments of this paragraph contain conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 31. Admitted in part. Denied in part. It is admitted that Plaintiff served as the Executive Chef of Pesce form the time that it opened until the time he resigned. It is denied that Plaintiff had any role in the opening or operation of Juliana's and it is further denied that Plaintiff had any ownership interest in either 1851 or 6108. 32. Denied. To the contrary, Thomas never represented that Plaintiff had ownership in either 1851 or 6108. 33. Denied. The averments of this paragraph contain conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. WHEREFORE, Defendants respectfully request this Honorable Court to dismiss Plaintiff's Count and enter judgment in their favor and against the Plaintiff together with any costs associated therewith. COUNT II UNJUST ENRICHMENT PLAINTIFF vs. ALL DEFENDANTS 34. This is an incorporation paragraph to which no responsive pleading is required. 4 35. Denied. The averments of this paragraph contain conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 36. Denied. The averments of this paragraph contain conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. WHEREFORE, Defendants respectfully request this Honorable Court to dismiss Plaintiff's Count and enter judgment in their favor and against the Plaintiff together with any costs associated therewith. COUNT III ACCOUNTING PLAINTIFF vs. ALL DEFENDANTS 37. This is an incorporation paragraph to which no responsive pleading is required. 38. Denied. To the contrary, Thomas denies any misuse or mismanagement of funds of either 1851 or 6108. 39. Denied. The averments of this paragraph contain conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. WHEREFORE, Defendants respectfully request this Honorable Court to dismiss Plaintiff's Count and enter judgment in their favor and against the Plaintiff together with any costs associated therewith. COUNT IV FRAUD PLAINTIFF vs. ALL DEFENDANTS 40. This is an incorporation paragraph to which no responsive pleading is required. 5 41. Denied. The averments of this paragraph contain conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 42. Denied. The averments of this paragraph contain conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 43. Denied. The averments of this paragraph contain conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 44. Denied. The averments of this paragraph contain conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. WHEREFORE, Defendants respectfully request this Honorable Court to dismiss Plaintiffs Count and enter judgment in their favor and against the Plaintiff together with any costs associated therewith. NEW MATTER 45. Paragraphs 1 through 44 of Plaintiffs Complaint are hereby incorporated by reference as if fully set forth herein. 46. Plaintiffs Complaint fails to state a claim for Breach of Contract against Defendants for which relief can be granted. 47. Plaintiffs Complaint fails to state a claim for Unjust Enrichment against the Defendants for which relief can be granted. 6 48. Plaintiffs Complaint fails to state a claim for an Accounting for which relief can be granted. 49. Plaintiff's Complaint fails to state a claim for Fraud for which relief can be granted. 50. Plaintiffs claims may be barred, in whole or in part, by the Doctrine of Laches. 51. Plaintiffs claims are barred in whole or in part by the Doctrine of Unclean Hands. 52. Plaintiffs claims are barred in whole or in part for his failure to mitigate any damages sustained (all of which are denied). 53. Pesce restaurant was opened by 1851 in November of 2003. 54. In January of 2004, Plaintiff was hired and compensated as an at-will employee to be the executive chef at Pesce. 55. When Plaintiff was hired as Executive Chef at Pesce he was given a raise from what he was earning at his previous place of employment. 56. Plaintiff had no employment contract, written or otherwise, with any of the Defendants. 57. In late December of 2004, Plaintiff voluntarily resigned from employment as Executive Chef at Pesce. 58. Plaintiff's name does not appear on any of the corporate records of 1851 or 6108. 59. Plaintiff is not, and never was, a shareholder, an officer, or a director of either 1851 or 6108. 60. Plaintiff had no involvement in any of the activities related to the development or opening of a restaurant for 6108. 7 61. Plaintiffs employment with Pesce ceased prior to the opening of Juliana's restaurant by 6108. WHEREFORE, Defendants request Judgment in their favor and against Plaintiff Joel Dincher, together with costs and any other relief that this Court deems just. Respectfully submitted, SMIGEL, ANDERSON & SACKS, L.L.P. Date: April 5, 2007 By: _IoA??,j Peter M. Good, Es uire - ID #64316 Darryl J. Liguori, Esquire - ID #91715 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys for Defendants APR-05-2007 12:02 MANAGING PARTNERS P.01i01 VERIFICATION I, David J. Thomas, verify that the statements contained in the foregoing Answer are true and correct to the best of my knowledge, information and belief. I understand that false statements therein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unworn falsification to authorities. Date: Davi J. Th as TOTAL P.01 SMIGEL, ANDERSON & SACKS, LLP River Chase Office Center 4431 North Front Street, 3rd Floor Harrisburg, PA 17110-1778 (717) 234-2401 Peter M. Good, Esquire I.D. No. 64316 Darryl J. Liguori, Esquire I.D. No. 91715 Attorneys for Defendants JOEL P. DINCHER, IN THE COURT OF COMMON PLEAS Plaintiff, OF CUMBERLAND COUNTY, V. PENNSYLVANIA DAVID J. THOMAS, NO. 06-5539 CIVIL 1851 RESTAURANT COMPANY, LLC, and 6108 CARLISLE PIKE RESTAURANT COMPANY, INC., Defendants. JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Peter M. Good, Esquire, attorney for the Defendants in the above-captioned matter, certify that I this day served a copy of the foregoing Defendants' Answer with New Matter to Plaintiff's Complaint upon the person(s) indicated below by depositing a copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, and addressed as follows: Date: April 5, 2007 Mark K. Emery, Esquire 410 North Second Street Harrisburg, PA 17101 Attorney for Plaintiff By: SMIGEL, ANDERSON & SACKS, L.L.P. II" V Peter M. Good, Esquire - ID #64316 Darryl J. Liguori, Esquire - ID #91715 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys for Defendants 7_ C n - i - v JOEL P. DINCHER, : IN THE COURT OF COMMON PLEAS Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA V. : No. 06-5539 Civil DAVID J. THOMAS, 1851 RESTAURANT COMPANY, LLC, : CIVIL ACTION - LAW and EQUITY and 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC Defendants. JURY TRIAL DEMANDED ANSWER TO DEFENDANTS' NEW MATTER AND NOW, cones the Plaintiff, Joel P. Dincher, by and through his attorney, Mark K. Emery, Esquire, and files this Answer to New Matter, as follows: 45. No response required. 46. Denied as a conclusion of law. 47. Denied as a conclusion of law. 48. Denied as a conclusion of law. 49. Denied as a conclusion of law. 50. Denied as a conclusion of law. 51. Denied as a conclusion of law. 52. Denied as a conclusion of law. 53. Admitted. 54. Denied. It is specifically denied that Plaintiff was not hired until January 2004. 1 9 5 5 . Admitted. It is admitted that Plaintiffs salary as executive chef of Pesce was an increase from his rate of pay at his previous place of employment. 56. Denied as a conclusion of law. Waiving none of the foregoing, by way of further response, it is specifically denied that Plaintiff and Defendants did not have an oral agreement for employment, in addition to the oral agreement to provide ownership interest in the subject restaurants. 57. Denied. It is specifically denied that Plaintiff voluntarily resigned from employment at Pesce. 58. After reasonable investigation, Plaintiff can neither admit or deny the allegations contained in paragraph 58 and therefore such allegations are denied. 59. Denied. It is specifically denied that Plaintiff was not a member of 1851 or 6108. On the contrary, based upon the oral agreement between the parties, Plaintiff had an ownership interest in such entities. 60. Denied. It is specifically denied that Plaintiff had no involvement in any of the activities related to the development or opening of a restaurant for 6108. 61. Denied as stated. It is denied that Plaintiffs employment with Pesce ceased prior to the creation of Juliana's Restaurant. It is admitted that Plaintiff s employment with Pesce ceased prior to Juliana's first day of operations as a restaurant. 2 WHEREFORE, Plaintiff respectfully requests this Honorable Court enter judgment for him and against Defendants. Respectfully submitted, LAW OFFICES OF MARK K. EMERY By: ark K. Emery`, Esquire Supreme Court I.D. No. 72787 410 North Second Street Harrisburg, PA 17101 (717) 238-9883 Attorney for Plaintiff DATE: April 25, 2007 3 VERIFICATION I, Joel Dincher, hereby verify that I have read the foregoing Answer to New Matter and that the information contained therein is true and correct to the best of my knowledge, information and belief. I understand that false statements herein are subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. Iq (1 [6 DATE: tIe"V I,; j : ". K - Jae1 Dint er i' CERTIFICATE OF SERVICE AND NOW, this 25th day of April, 2007, I, Mark K. Emery, Esquire do hereby certify that I have served the foregoing Answer to Defendants' New Matter by mailing a true and correct copy via United States first class mail, addressed as follows: . Peter M. Good, Esquire Smigel, Anderson & Sacks, LLP 4431 North Front Street Harrisburg, PA 17110-1778 LAW OFFICES OF MARK K. EMERY r By: Mark K. Emery t,. ..-s # ? ti + ? _? t.r.. - ? ? -==-, t ? - CSC ? -'? , ? r r, -?Y ;. ? ? , ? ? ,-? ?.. ? ?s ? '. ?C .? ti.fa a, JOEL P. DINCHER, : IN THE COURT OF COMMON PLEAS Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA V. :No. 06-5539 Civil DAVID J. THOMAS, 1851 RESTAURANT COMPANY, LLC, : CIVIL ACTION - LAW and EQUITY and 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC Defendants. JURY TRIAL DEMANDED PLAINTIFF'S OBJECTIONS TO SUBPOENA PURSUANT TO RULE 4009.21 AND NOW, comes Plaintiff Joel P. Dincher, and files these Objections to Subpoena Pursuant to Rule 4009.2 1, as follows: 2 3 4 5 Defendants have provided notice of their intention to serve a subpoena upon Monkfish Grill, a business entity located in Cape May, New Jersey. A copy of the intended subpoena is attached hereto as Exhibit "A". The information requested is not relevant to the issue of this litigation, that being whether Defendants offered to Plaintiff an ownership interest in the Defendant restaurant business entities. The Monkfish Grill is a restaurant partially owned by Plaintiff, which opened approximately 4 years after the last relevant fact to the litigation occurred. The corporate records of a business entity entirely unrelated to the litigation are not relevant, nor would they likely lead to any relevant or admissible evidence. The subpoena is not intended for a proper purpose, but is rather merely to harass and annoy. 1 6. A subpoena issued by the Court of Common Pleas of Cumberland County is not enforceable against an out of state business entity, and therefore the subpoena, even if issued, has no legal effect. WHEREFORE, Plaintiff respectfully requests this Honorable Court quash the subpoena identified herein. Respectfully submitted, LAW OFFICES OF MARK K. EMERY By: Mark K. Emery, Esquire Supreme Court I.D. No. 72787 410 North Second Street Harrisburg, PA 17101 (717) 238-9883 DATE: May 23, 2008 Attorney for Plaintiff 2 JOEL P. DINCHER, IN THE COURT OF COMMON PLEAS Plaintiff, OF CUMBERLAND COUNTY, V. PENNSYLVANIA DAVID J. THOMAS, NO. 06-5539 CIVIL 1851 RESTAURANT COMPANY, LLC, and 6108 CARLISLE PIKE RESTAURANT COMPANY, INC., Defendants. JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Moonfish Grill 416 Broadway Street Cape May, NY 08240 Within twenty (20) days after service of this Subpoena, you are ordered by the Court to produce the following documents or things: ALL CORPORATE RECORDS, BOOKS, MINUTES, AND RESOLUTIONS FROM JANUARY 1, 2007 TO PRESENT at the offices of SMIGEL, ANDERSON & SACKS, LLP, 4431 North Front Street, 3rd Floor, Harrisburg, Pennsylvania 17110-1709. You may deliver or mail legible copies of the documents or produce things requested by this Subpoena, together with the Certificate of Compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this Subpoena within twenty (20) days after its service, the party serving this Subpoena may seek a Court Order compelling you to comply with it. This Subpoena was issued at the request of the following person: SMIGEL, ANDERSON & SACKS Date: May 6, 2008 Peter M. Good, Esquire - ID #64316 Darryl J. Liguori, Esquire - ID #91715 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys for Defendants BY THE COURT: Date: SEAL OF THE COURT (Prothonotary) -PLAINTIFF'S EXHIBIT CERTIFICATE OF SERVICE AND NOW, this 23`d day of May, 2008, I, Mark K. Emery, Esquire do hereby certify that I have served the foregoing Objections to Subpoena Pursuant to Rule 4009.21, by mailing a true and correct copy via United States first class mail, addressed as follows: Peter M. Good, Esquire Smigel, Anderson & Sacks, LLP 4431 North Front Street Harrisburg, PA 17110-1778 LAW OFFICES OF MARK K. EMERY By: ?l - Mark K. Emery ? '' ?: ?_ * r? = : ? ?"? =ii r.; ,? _, "_? .? c..-, ??? c:: :{ .1 SMIGEL, ANDERSON & SACKS, LLP River Chase Office Center 4431 North Front Street, 3rd Floor Harrisburg, PA 17110-1778 (717) 234-2401 Peter M. Good, Esquire I.D. No. 64316 Darryl J. Liguori, Esquire J.D. No. 91715 Attorneys for Defendants JOEL P. DINCHER, IN THE COURT OF COMMON PLEAS Plaintiff, OF CUMBERLAND COUNTY, V. PENNSYLVANIA DAVID J. THOMAS, NO. 06-5539 CIVIL 1851 RESTAURANT COMPANY, LLC, and 6108 CARLISLE PIKE RESTAURANT COMPANY, INC., Defendants. JURY TRIAL DEMANDED DEFENDANTS' ANSWER TO PLAINTIFF'S OBJECTIONS TO SUBPOENA PURSUANT TO RULE 4009.21 AND NOW come Defendants David J. Thomas ("Thomas"), 1851 Restaurant Company, LLC, and 6108 Carlisle Pike Restaurant Company, Inc., by and through their attorneys, the law firm of Smigel, Anderson & Sacks, LLP, to file this Answer to Plaintiffs Objections Subpoena Pursuant to Rule 4009.21: 1. Admitted. 2. Denied. The requested records from the Moonfish Grill are relevant on the issues of Plaintiff mitigating his damages and Plaintiffs credibility. 3. Denied. Defendants have no knowledge or information sufficient to form a belief as to whether Plaintiff is a partial owner of the Moonfish Grill or when it opened, hence the necessity of Defendants requesting the records from the Moonfish Grill. 4. Denied. The records from the Moonfish Grill are relevant on the issues of Plaintiff mitigating his damages and Plaintiffs credibility. r• 5. Denied. Defendants requested the records from the Moonfish Grill because Defendants believe they are relevant on the issues of Plaintiff mitigating his damages and Plaintiff s credibility. 6. Denied. The subpoena could be issued on Plaintiff, who is a part owner of the Moonfish Grill, and who has availed himself to jurisdiction in Cumberland County by filing the Complaint in Cumberland County. Furthermore, Defendants are free to utilize the procedures in the Pennsylvania Rules of Civil Procedure to serve an out-of-state subpoena. Peter M. Good, Esquire - ID #64316 Darryl J. Liguori, Esquire - ID 491715 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys for Defendants Date: ?j' l ?, • Q By: SMIGEL, ANDERSON & SACKS, L.L.P. Dj?t-,)- SMIGEL, ANDERSON & SACKS, LLP Peter M. Good, Esquire River Chase Office Center I. D. No. 64316 4431 North Front Street, 3rd Floor Darryl J. Liguori, Esquire Harrisburg, PA 17110-1778 I.D. No. 91715 (717) 234-2401 Attorneys for Defendants JOEL P. DINCHER, : IN THE COURT OF COMMON PLEAS Plaintiff, OF CUMBERLAND COUNTY, V. PENNSYLVANIA DAVID J. THOMAS, NO. 06-5539 CIVIL 1851 RESTAURANT COMPANY, LLC, and 6108 CARLISLE PIKE RESTAURANT COMPANY, INC., Defendants. JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Peter M. Good, Esquire, attorney for the Defendants in the above-captioned matter, certify that I this day served a copy of the foregoing Defendants' Answer to Plaintiffs Objections to Subpoena upon the person(s) indicated below by depositing a copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, and addressed as follows: Mark K. Emery, Esquire 410 North Second Street Harrisburg, PA 17101 Attorney.for Plaintiff SMIGEL, ANDERSON & SACKS, L.L.P. Date: - - D B j " I ?? - ------ Peter M. Good, Esquire - ID #64316 Darryl J. Liguori, Esquire - ID #91715 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys for Defendants zm ?. r 4 00 PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: ® for JURY trial at the next term of civil court. ? for trial without a jury. -- - - -------- - ------------------- - ---- - --- ----------------- - -------------- - ------------------------------- CAPTION OF CASE (entire caption must be stated in full) (check one) Joel P. Dincher, ®Civil Action -Law ? Appeal from arbitration (other) (Plaintiff) VS. David J, Thomas, 1851 Restaurant Company, LLC and 6108 Carlisle Pike Restaurant Company, LLC VS. (Defendant) The trial list will be called on 12 / 3 0 / 2 0 0 8 and Trials commence on7anuary 26, 2009 Pretrials will be held on January 7, 2009 (Briefs are due S days before pretrials No. 5539 , 2006 Term Indicate the attorney who will try case for the party who files this praecipe: Mark K. Emery, Esquire, 410 North 2nd Street, Harrisburg, PA 17101 Indicate trial counsel for other parties if known: Peter M. Good, Esquire, 4431 North Front St. This case is ready for trial. Harr. Signed: ,_P 3rd Floor 7110-1778 Print Name: Mark K. Emery, Date: 1, t T O D 1 Attorney for: Plaintiff 4 4 ire 13 A C7 a0 1 r.. t7 Ul ? JOEL P. DINCHER, Plaintiff v DAVID J. THOMAS, 1851 RESTAURANT COMPANY, LLC and 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 06-5539 CIVIL TERM IN RE: CASE STRICKEN FROM LIST ORDER OF COURT AND NOW, this 30th day of December, 2008, upon consideration of the call of the civil trial list, and no person having called the above-captioned case for trial, and the Court having received a letter from counsel requesting that it be removed from the trial list, the above-captioned case is stricken from the trial list. By the Court, Mark K. Emery, Esquire 410 North Second Street Harrisburg, PA 17101 For Plaintiff /'Peter M. Good, Esquire River Chase Office Center 4431 North Front Street Floor 3 P llslo q Harrisburg, PA 17110- 1709 Court Administrator - (2D 7 :mae L r-; C" i C JOEL P. DINCHER, : IN THE COURT OF COMMON PLEAS Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA V. :No. 06-5539 Civil DAVID J. THOMAS, 1851 RESTAURANT COMPANY, LLC, : CIVIL ACTION - LAW and EQUITY and 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC Defendants. JURY TRIAL DEMANDED PLAINTIFFS' MOTION TO COMPEL ANSWERS TO DISCOVERY AND NOW, comes the Plaintiff, by and through its counsel, the Law Offices of Mark K. Emery, and files this Motion to Compel Answers to Discovery, as follows: 1. Plaintiff served his Second Request for Production of Documents upon Defendants on August 4, 2009. A copy of such Request is attached and incorporated herein as Exhibit "A". 2. Defendants have failed to respond to the discovery requests in the time set by the Pennsylvania Rules of Civil Procedure. 3. Defendants have not served objections to the discovery. 4. The only matter previously ruled upon by the Court was Judge Kevin A. Hess' ruling on Defendants' preliminary Objection by Order dated march 16, 2007. 5. Pursuant to C.C.R.P. 208.2(d), Defendants' counsel was requested to consent to the relief requested herein, and such consent was not given. 1 WHEREFORE, Plaintiffs respectfully request this Honorable Court Order Defendant to fully respond to Plaintiff's Second Request for Production of Documents within ten (10) days, or suffer the appropriate sanctions. Respectfully submitted, LAW OFFICES OF MARK K. EMERY By: ark K. Emery, Esquire Supreme Court I.D. No. 72787 410 North Second Street Harrisburg, PA 17101 (717) 238-9883 Attorney for Plaintiff DATE: October 1, 2009 2 JOEL P. DINCHER, Plaintiff, V. DAVID J. THOMAS, 1851 RESTAURANT COMPANY, LLC, and 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA :No. 06-5539 Civil : CIVIL ACTION - LAW and EQUITY : JURY TRIAL DEMANDED PLAINTIFF'S SECOND REQUEST FOR PRODUCTION OF DOCUMENTS PROPOUNDED UPON ALL DEFENDANTS TO: Peter M. Good, Esquire Smigel, Anderson & Sacks, LLP 4431 North Front Street Harrisburg, PA 17110-1778 Counsel for all Defendants YOU ARE HEREBY REQUESTED, pursuant to Pa. R.C.P. 4009, to produce the following documents and other physical objects for inspection and copying, within no more than thirty (30) days after service hereof, or as otherwise set by law, at the offices of Plaintiffs counsel, The Law Offices of Mark K. Emery, or alternatively, by delivering copies of the same to the Plaintiffs counsel at the aforesaid address. This Request for Production of Documents is deemed continuing so as to require a supplemental answer if Defendant, or Defendants' agents or representatives obtain other information between the time the answers are served and the time of trial. . Documents for which a proper claim of privilege can be substantiated are expressly excluded from this request, except that Plaintiff requests that Defendants identify all documents for which privilege is claimed, and specify the exact grounds upon which the claim for privilege is based. DEFINITIONS AND DIRECTIVES The following request to produce is governed by the following definitions and directives: 1. "You" and "Your" shall mean Defendant, jointly or singularly, its officers, agents and employees. 2. "Document" shall mean all forms of recorded data or information, including writings of any kind, including the originals and all non-identical copies, whether different from the originals by reason of any notation made on such copies or otherwise (including, without limitation, correspondence memoranda, notes, work sheets, diaries, statistics, letters, telegrams, telex, telefax, minutes, contracts, reports, studies, checks, statements, receipts, returns, summaries, pamphlets, books); notations of any sort of conversations, telephone calls, meetings or other communications; bulletins or printed matter of any type, and all forms of drafts, notations, workings, alterations, modifications, changes or amendments of any of the foregoing; graphical or oral records or representations of any kind (including, without limitation, photographs, films, charts, graphs, videotapes, recordings, and motion pictures); and electrical records or representations of any kind (including, without limitation, tapes, cassettes, disks and recordings). 3. "Pertain to" shall be interpreted to include relating to, referring to, reflecting, regarding, constituting, concerning or having as its subject matter, in any manner whatsoever, directly or indirectly, expressly or implied, the subject matter of the specific request. 4. "Communication" includes, but is not limited to, all written or oral discussions, statements, conversations, memoranda, notations, letters, notices or any document. 5. If any request for documents is deemed to call for production of privileged or work product materials and such privilege or work product is asserted, identify in writing each document so withheld. If only a portion of a document is privileged or work product, then redact and identify such portion thereof that is withheld. With regard to all documents or all portions of documents withheld, provide the following information: (a) The reason for withholding the documents; (b) The statement for the basis of the claim of privilege, work product or other ground of non-disclosure; (c) A brief description of the document, including: (i) the date of the document; (ii) number of pages, attachments and appendices; (iii) the names of its author, authors or preparers and an identification by employment and title of each such person; (iv) the name of each person who was sent, or shown blind copies or carbon copies or has had access to or custody of the document together with an identification of each such person; (v) the present custodian; and (vi) the subject matter of the document and in the case of any document relating to or referring to a meeting or conversation, identification of such meeting or conversation. 6. "Pesce", when used herein, shall refer to the restaurant establishment owned and operated by 1851 Restaurant Company, LLC located at 955 Eisenhower Blvd., Harrisburg, Pennsylvania. 7. "Juliana's", when used herein, shall refer to the restaurant establishment owned and operated by 6108 Carlisle Pike Restaurant Company, LLC, located at 6108 Carlisle Pike, Camp Hill, Pennsylvania. REQUESTED DOCUMENTS 1. All Federal Tax Returns, with schedules, for each Defendant from 2002 to the present. 2. Update of all responses, now applicable to any successor of Pesce or Juliana's, to Plaintiff's First Request for Production of Documents. Respectfully submitted, LAW OFFICES OF MARK K. EMERY By: Mark K. Emery, Esquire Supreme Court I.D. No. 72787 410 North Second Street Harrisburg, PA 17101 (717) 238-9883 Attorney for Plaintiff DATE: August 4, 2009 CERTIFICATE OF SERVICE AND NOW, this 41h day of August, 2009, I, Mark K. Emery, Esquire do hereby certify that I have served the foregoing Second Request for Production of Documents by mailing a true and correct copy via United States first class mail, addressed as follows: Peter M. Good, Esquire Smigel, Anderson & Sacks, LLP 4431 North Front Street Harrisburg, PA 17110-1778 LAW OFFICES OF MARK K. EMERY By: _ v- Mark K. Emery CERTIFICATE OF SERVICE AND NOW, this 1St day of October, 2009, I, Mark K. Emery, Esquire do hereby certify that I have served the foregoing Motion to Compel Answers to Discovery by mailing a true and correct copy via United States first class mail, addressed as follows: Peter M. Good, Esquire Smigel, Anderson & Sacks, LLP 4431 North Front Street Harrisburg, PA 17110-1778 LAW OFFICES OF MARK K. EMERY By:_ 39;?? Mark K. ery FTiCEE OF TK pporrr, NOTARY 2009 OCT -2 PM I : 18 CUP?t?+4... `'' UN3Y PE-?,INa`r`11`, . IA OCT o s zoos 4 1( JOEL P. DINCHER, : IN THE COURT OF COMMON PLEAS Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA V. :No. 06-5539 Civil DAVID J. THOMAS, 1851 RESTAURANT COMPANY, LLC, : CIVIL ACTION - LAW and EQUITY and 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC Defendants. JURY TRIAL DEMANDED ORDER AND NOW, this 9 0 day of October, 2009, upon consideration of Plaintiff's Motion to Compel Answers to Discovery, it is hereby ORDERED that Defendants shall llejeebvk o Plaintiff's Second Request for Production of Documents within t4-(4$) days of the date offtthis Order, or suffer the appropriate sanctions. BY THE COURT Pi4tribution: k K. Emery, Esquire, 410 North Second Street, Ha/rrisburg, PA _ eter J. Good, Esquire, 4431 North Front Street, Harrisburg, PA 17110 (2-r t es rn? t ? FILED- LED-Of `F-1, CAE OF THr W)Tl HONOTARY 2009 OCT -8 Ply 2: 32 ?, CUM-,;... JOEL P. DINCHER, : IN THE COURT OF COMMON PLEAS Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA V. :No. 06-5539 Civil DAVID J. THOMAS, 1851 RESTAURANT COMPANY, LLC, : CIVIL ACTION - LAW and EQUITY and 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC Defendants. JURY TRIAL DEMANDED PLAINTIFF'S MOTION FOR SANCTIONS AND FINDING OF CONTEMPT AND NOW, comes the Plaintiff, Joel P. Dincher, by and through his counsel, The Law Offices of Mark K. Emery, and files this Motion for Sanctions and Finding of Contempt, as follows: 1 2 3 Plaintiff served his Second Request for Production of Documents upon all Defendants on August 4, 2009. A copy of such discovery requests was filed and incorporated fully with Plaintiff's Motion to Compel Answers to Discovery previously filed. As part of the Second Request for Production of Documents, Plaintiff requested updates on all responses to Plaintiff's First Request for Production of Documents as allowed under Pa. R.C.P. 4007.4(3). Since Defendants failed to respond to the discovery requests in the time set by the Pennsylvania Rules of Civil Procedure, and after attempting to resolve the matter with Defendants' counsel, Plaintiff had to incur the cost of filing a Motion to Compel Answers to Discovery, filed on October 2, 2009. 1 • 4. In disposition of the Motion to Compel, the Court, through the Honorable Kevin A. Hess, issued its Order of October 8, 2009, ordering Defendant to provide "full and complete responses to Plaintiff's First Set of Written Interrogatories and First Request for Production of Documents within twenty (20) days of the date this Order is docketed, or suffer appropriate sanctions upon further application to this Court." A copy of this Order is attached and incorporated fully herein as Exhibit «A„ 5. Defendant has not provided any response to the outstanding discovery as of the date of this Motion. 6. Pursuant to Pa. R.C.P. 4019 (c)(1) and (2), the Court may enter an order deeming all matters inquired into through discovery be taken as established, and/or prohibiting Defendant from entering into evidence any claim or defense addressed in the discovery, or documents request. 7. This Court may find Defendant, and its controlling officers and/or directors, in contempt, pursuant to PA. R.C.P. 4019(c)(4). 8. In addition, this Court should order Defendant to pay attorney's fees incurred by Plaintiff in having to prepare and file its Motion to Compel Answers to Discovery and this Motion for Sanctions and Finding of Contempt, that amount being $750.00, said amount to increase upon any future hearings or action required by the Court. 9. Counsel for Defendant has been contacted and advised of the filing of this Motion. 2 I WHEREFORE, Plaintiffs respectfully request this Honorable Court enter sanctions against Defendant, and, pursuant to Pa. R.C.P 4019 prohibit Defendant from testifying to or entering into evidence at time of trial any fact or document responsive to Plaintiffs' discovery requests, and any such matters inquired into through the discovery requests should be deemed established at time of trial. It is further requested that Defendants be found in contempt, and ordered to pay attorney's fees in the amount of $750.00. Respectfully submitted, LAW OFFICES OF MARK K. EMERY By: Mark K. Emery, Esquire Supreme Court I.D. .72787 410 North Second Street Harrisburg, PA 17101 (717) 238-9883 Attorney for Plaintiff DATE: November 6, 2009 3 OCT os2oos? JOEL P. DINCHER, : IN THE COURT OF COMMON PLEAS Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA V. :No. 06-5539 Civil DAVID J. THOMAS, 1851 RESTAURANT COMPANY, LLC, : CIVIL ACTION - LAW and EQUITY and 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC Defendants. . JURY TRIAL DEMANDED ORDER AND NOW, this 94L."day of October, 2009, upon consideration of Plaintiff's Motion to Compel Answers to Discovery, it is hereby ORDERED that Defendants shall RES? to Plaintiffs Second Request for Production of SE?e.vJcc Documents within tea•(•1<8j`days of the date of this Order, or suffer the appropriate A sanctions. BY THE COURT ?Vjpl !Sall Distribution: J. Mark K. Emery, Esquire, 410 North Second Street, Harrisburg, PA 17101 Peter J. Good, Esquire, 4431 North Front Street, Harrisburg, PA 17110 In E EXHIBIT and Ei l 5w.i c ;, dra.? hand This ... ......... da of..? A ,.. Prothonotary CERTIFICATE OF SERVICE AND NOW, this 6th day of November, 2009, I, Mark K. Emery, Esquire do hereby certify that I have served the foregoing Motion for Sanctions and Finding of Contempt by mailing a true and correct copy via United States first class mail, addressed as follows: Peter M. Good, Esquire Smigel, Anderson & Sacks, LLP 4431 North Front Street Harrisburg, PA 17110-1778 LAW OFFICES OF MARK K. EMERY Mark K. Emery F??E ..?-, ? 1-_ ???" RY .. ?? 2G?? ?'? -g F ?. 2' ? j ,.-?? .? CL?r ,, JOEL P. DINCHER, : IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 06-5539 CIVIL DAVID J. THOMAS, 1851 RESTAURANT COMPANY, LLC, and 6108 CARLISLE PIKE RESTAURANT COMPANY, INC., Defendants JURY TRIAL DEMANDED IN RE: MOTION FOR SANCTIONS AND FINDING OF CONTEMPT ORDER AND NOW, this 17 - day of November, 2009, a brief argument on the plaintiff's motion for sanctions and finding of contempt is set for Thursday, January 14, 2010, at 9:30 a.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, ? Mark K. Emery, Esquire For the Plaintiff Peter M. Good, Esquire For the Defendants :rlm L.p 6£s rY1ZCI!EGL Kevin Hess, J. R E-WHOE OF THE PROTHONOTARY 2601 NOV I$ AM 8= 3 7 CUMBEH ?C?jNTY 1KSYLVAt+ A FILED-OF CE OF THE PP0T -'N'OTARY 1010 JAN -7 PM 3: 34 JOEL P. DINCHER, : IN THE COMPjV &1&MW,EAS Plaintiff, : CUMBERLAND4EWR?*ENNSYLVANIA V. :No. 06-5539 Civil DAVID J. THOMAS, 1851 RESTAURANT COMPANY, LLC, : CIVIL ACTION - LAW and EQUITY and 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC Defendants. JURY TRIAL DEMANDED PLAINTIFF'S MOTION TO COMPEL ANSWERS TO DISCOVERY AND MOTION FOR SANCTIONS AND ATTORNEY'S FEES AND NOW, comes the Plaintiff, Joel P. Dincher, by and through his counsel, The Law Offices of Mark K. Emery, and files this Motion to Compel Answers to Discovery and Motion for Sanctions and Attorney's Fees, as follows: 1. Plaintiff served his Third Request for Production of Documents upon all Defendants on December 4, 2009. A copy of such discovery request is attached hereto as Exhibit "A". 2. The relevant discovery addressed, inter alia, the recent, undisclosed, sale of all of the assets of Defendant 6108 Carlisle Pike Restaurant Company, Inc. 3. Currently before this Court, with argument scheduled before the Honorable Judge Kevin Hess on January 14, 2010, is Plaintiff's Motion for Sanctions and Finding of Contempt, based upon Defendants' current, ongoing and continued failure to respond to prior discovery requests. No other judge has been assigned matters in this case. 1 4. Defendants' conduct has been calculated to delay trial, and therefore provide Defendants the opportunity to sell off assets prior to being subject to judgment. Due to Defendants current contempt of court, and ongoing violation of the Rules of Civil Procedure, this Court should order Defendants to pay attorney's fees incurred by Plaintiff in having to prepare and file this Motion. 6. Counsel for Defendant has been contacted and advised of the filing of this Motion. WHEREFORE, Plaintiffs respectfully request this Honorable Order Defendants to fully respond to Plaintiff's Third Request for Production of Documents upon all Defendants within 10 days, or be subject to a default judgment. It is further requested that Defendants, and their counsel, be sanctioned for their continued violation of the Rules of Civil Procedure and ordered to pay additional attorney's fees in the amount of $500.00. Respectfully submitted, LAW OFFICES OF MARK K. EMERY By:?? Z----- ark K. Emery, Esquire Supreme Court I.D. No. 72787 410 North Second Street Harrisburg, PA 17101 (717) 238-9883 Attorney for Plaintiff DATE: January 7, 2010 2 JOEL P. DINCHER, : IN THE COURT OF COMMON PLEAS Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA V. :No. 06-5539 Civil DAVID J. THOMAS, 1851 RESTAURANT COMPANY, LLC, : CIVIL ACTION - LAW and EQUITY and 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC Defendants. : JURY TRIAL DEMANDED PLAINTIFF'S THIRD REQUEST FOR PRODUCTION OF DOCUMENTS PROPOUNDED UPON ALL DEFENDANTS TO: Peter M. Good, Esquire Smigel, Anderson & Sacks, LLP 4431 North Front Street Harrisburg, PA 17110-1778 Counsel for all Defendants YOU ARE HEREBY REQUESTED, pursuant to Pa. R.C.P. 4009, to produce the following documents and other physical objects for inspection and copying, within no more than thirty (30) days after service hereof, or as otherwise set by law, at the offices of Plaintiffs counsel, The Law Offices of Mark K. Emery, or alternatively, by delivering copies of the same to the Plaintiffs counsel at the aforesaid address. This Request for Production of Documents is deemed continuing so as to require a supplemental answer if Defendant, or Defendants' agents or representatives obtain other information between the time the answers are served and the time of trial. Documents for which a proper claim of privilege can be substantiated are expressly excluded from this request, except that Plaintiff requests that Defendants identify all documents for which privilege is claimed, and specify the exact grounds upon which the claim for privilege is based. EXHIBIT A :1 DEFINITIONS AND DIRECTIVES The following request to produce is governed by the following definitions and directives: 1. "You" and "Your" shall mean Defendant, jointly or singularly, its officers, agents and employees. 2. "Document" shall mean all forms of recorded data or information, including writings of any kind, including the originals and all non-identical copies, whether different from the originals by reason of any notation made on such copies or otherwise (including, without limitation, correspondence memoranda, notes, work sheets, diaries, statistics, letters, telegrams, telex, telefax, minutes, contracts, reports, studies, checks, statements, receipts, returns, summaries, pamphlets, books); notations of any sort of conversations, telephone calls, meetings or other communications; bulletins or printed matter of any type, and all forms of drafts, notations, workings, alterations, modifications, changes or amendments of any of the foregoing; graphical or oral records or representations of any kind (including, without limitation, photographs, films, charts, graphs, videotapes, recordings, and motion pictures); and electrical records or representations of any kind (including, without limitation, tapes, cassettes, disks and recordings). 3. "Pertain to" shall be interpreted to include relating to, referring to, reflecting, regarding, constituting, concerning or having as its subject matter, in any manner whatsoever, directly or indirectly, expressly or implied, the subject matter of the specific request. 4. "Communication" includes, but is not limited to, all written or oral discussions, statements, conversations, memoranda, notations, letters, notices or any document. 5. If any request for documents is deemed to call for production of privileged or work product materials and such privilege or work product is asserted, identify in writing each document so withheld. If only a portion of a document is privileged or work product, then redact and identify such portion thereof that is withheld. With regard to all documents or all portions of documents withheld, provide the following information: (a) The reason for withholding the documents; (b) The statement for the basis of the claim of privilege, work product or other ground of non-disclosure; (c) A brief description of the document, including: REQUESTED DOCUMENTS 1. All agreements of sale for 6108 Carlisle Pike Restaurant Company, LLC, also known as Juliana's, its ownership interest or assets. 2. All correspondence between 6108 Carlisle Pike Restaurant Company, LLC, its agents or attorneys, and the purchaser of 6108 Carlisle Pike Restaurant Company, LLC, its ownership interest or, assets. 3. All listing agreements or business broker agreements for 6108 Carlisle Pike Restaurant Company, LLC. 4. All documents evidencing the sale of any asset of 6108 Carlisle Pike Restaurant Company, LLC valued at over $100 from the date of its incorporation to the present. 5. All settlement sheets or other documents incident to the closing of the sale of 6108 Carlisle Pike Restaurant Company, LLC. 6. All documents evidencing the disposition of all funds generated by 6108 Carlisle Pike Restaurant Company, LLC out of the sale of its ownership interest or assets. 7. All applications or other documents submitted to the Pennsylvania Liquor Control Board for the sale and/or transfer of the liquor license owned by 6108 Carlisle Pike Restaurant Company, LLC. 8. All bank account records, including account statements, for 6108 Carlisle Pike Restaurant Company, LLC, or 1851 Restaurant Company, LLC from January 1, 2004 to the present. 9. All bank records for Defendant Thomas, including account statements or other documents evidencing the receipt of funds from 6108 Carlisle Pike Restaurant Company, LLC, or 1851 Restaurant Company, LLC from January 1, 2004 to the present. Respectfully submitted, LAW OFFICES OF MARK K. EMERY By: Mark K. Emery, Esquire Supreme Court I.D. No. 72787 410 North Second Street Harrisburg, PA 17101 (717) 238-9883 Attorney for Plaintiff DATE: December 4, 2009 CERTIFICATE OF SERVICE AND NOW, this 4th day of December, 2009, I, Mark K. Emery, Esquire do hereby certify that I have served the foregoing Third Request for Production of Documents by mailing a true and correct copy via United States first class mail, addressed as follows: Peter M. Good, Esquire Smigel, Anderson & Sacks, LLP 4431 North Front Street Harrisburg, PA 17110-1778 LAW OFFICES OF MARK K. EMERY By: Mark K. Emery CERTIFICATE OF SERVICE AND NOW, this 7`h day of January, 2010, I, Mark K. Emery, Esquire do hereby certify that I have served the foregoing Motion to Compel Answers to Discovery and Motion for Sanctions and Attorney's Fees by mailing a true and correct copy via United States first class mail, addressed as follows: Peter M. Good, Esquire Smigel, Anderson & Sacks, LLP 4431 North Front Street Harrisburg, PA 17110-1778 LAW OFFICES OF MARK K. EMERY By: / ?. Mark K. Emery JOEL P. DINCHER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - LAW NO. 06-5539 CIVIL DAVID J. THOMAS, 1851 RESTAURANT COMPANY, LLC, and 6108 CARLISLE PIKE RESTAURANT COMPANY, INC., Defendants JURY TRIAL DEMANDED IN RE: PLAINTIFF'S MOTION TO COMPEL ANSWERS AND MOTION FOR SANCTIONS ORDER AND NOW, this day of January, 2010, a brief argument on the plaintiffs motion to compel answers and motion for sanctions is set for Thursday, January 14, 2010, at 9:30 a.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, Mark K. Emery, Esquire For the Plaintiff --' Peter M. Good, Esquire For the Defendants :rlm r"a-19?L 6.4j'. Hess, J. C-3 ?rv Ls'? C- Gam` N 3 o JOEL P. DINCHER, Plaintiff V DAVID J. THOMAS, 1,851 RESTAURANT COMPANY: LLC, and 6108 CARLISLE : PIKE RESTAURANT COMPANY: LLC, Defendants IN RE IN THE COURT 3F COMMON PLEAS CF CUMBERLAND COJNTY, PENNSYLVANIA CIVIL ACTION - LAW and EQUITY NO. 2006-5539 CIVIL TERM JURY TRIAL DE14ANDED MOTION FOR SANCTIONS ORDER OF COURT AND NOW, this 14th day of Janua-.-y, 2010, the C-) U, de:Eendant having been unresponsive to prior orders of court, and the court being satisfied that said unresponsiveness is willful on his part, he is adjudged in contempt of our p_--ior court orders. We award counsel fees in a total amount of $1;000.00, and direct: as a further sanction that judgment be ent=ered on the question of liability anc., therefore, the on=_y issue to be adjudicated at the time of trial is the amount. of damages. By the Court, 4 Kevin I.. Hess, J. Mark K. Emery, Esquire _ For Plaintiff //c3n,?C c}l Peter M. Good, Esquire _ [1.a For Defendants I'Y : bg 1AVI')?v JOEL P. DINCHER, Plaintiff, v. DAVID J. THOMAS, 1851 RESTAURANT COMPANY, LLC, and 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA C? ~ ~> W = ~ c :; No. 06-5539 Civil ~ - ~ o __ ~~ .. -. cz, CIVIL ACTION -LAW and EQI~~TY _,~aD ~ - ~,=' • ~ o :: :JURY TRIAL DEMANDED PLAINTIFF'S MOTION FOR CONTEMPT AND NOW, comes the Plaintiff, Joel P. Dincher, by and through his counsel, The Law Offices of Mark K. Emery, and files this Motion for Contempt, as follows: On January 14, 2010 this Court, by the Honorable Kevin A. Hess, entered judgment for Plaintiff and against all Defendants as a result of Defendants continued, willful failure to respond to prior court orders. As part of such ruling Defendants were found to be in contempt of court, and further ordered to pay counsel fees in the amount of $1000.00. A copy of said Order is attached hereto as Exhibit "A". 2. As of this date, despite the passage of eight months, Defendants have not made payment of the attorney's fees, as ordered. 3. Although the prior Order set no time limit on when payment of the attorney's fees need be made, clearly eight months is a sufficient and reasonable period of time. 4. Based on Defendants' prior contempt and willful refusal to abide by this Court's orders, Defendants failure to make payment as ordered constitutes an ongoing contempt. ., 5. Counsel for Defendant has been contacted and advised of the filing of this Motion, and has not provided his consent. WHEREFORE, Plaintiffs respectfully request this Honorable Court enter an order requiring Defendants to comply with the Order of January 14, 2010 and make payment of attorney's fees, in the amount of $1000.00, within 10 days, or be found in further contempt, subject to additional penalties and sanctions. It is further requested that Defendants be ordered to pay additional attorney's fees in the amount of $200.00. Respectfully submitted, LAW OFFICES OF MARK K. EMERY ~~ l By: Mark K. Emery, squire Supreme Court I.D. No. 72787 410 North Second Street Harrisburg, PA 17101 (717) 238-9883 Attorney for Plaintiff DATE: August 17, 2010 2 JOEL P. DINCHER, Plaintiff V. DAVID J. THOMAS, 1851 RESTAURANT COMPANY: LLC, and 6108 CARLISLE PIKE RESTAURANT COMPANY: LLC, Defendants IN~THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW and EQUITY. NO. 2006-5539 CIVIL TERM JURY TRIAL DEMANDED IN RE: MOTION FOR SANCTIONS ORDER OF COURT AND NOW, this 14th day of January, 2010, the defendant having been unresponsive to prior orders of court, and the court being satisfied that said unresponsiveness is willful on his part, he is adjudged in contempt of our prior court orders. We award counsel fees in a total amount of $1,000.00, and direct as a further sanction that judgment be entered on the question of liability and, therefore, the only issue to be adjudicated at the time of trial is the amount of damages. By the Court, Kevin Hess, J. Mark K. Emery, Esquire For Plaintiff Peter M. Good, Esquire For Defendants - ,.i ,~' , ;e^ s i { Rn T~St~~t ~,, - . t r: , f , .- ; ~ Qt 9~~. ~_=; my hated t ~h~ sa~1 gF ~~ wa ~. z tF $ ~j ~ar•i;s6L, Pa. ,- -.~ . `" ,. CERTIFICATE OF SERVICE AND NOW, this 17~' day of August, 2010, I, Mark K. Emery, Esquire do hereby certify that I have served the foregoing Motion for Contempt by mailing a true and correct copy via United States first class mail, addressed as follows: Peter M. Good, Esquire Smigel, Anderson & Sacks, LLP 4431 North Front Street Harrisburg, PA 17110-1778 LAW OFFICES OF MARK K. EMERY Mark K. Emery JOEL P. DINCHER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 06-5539 CIVIL .-r ci DAVID J. THOMAS, 1851 RESTAURANT COMPANY, LLC, mac. a and 6108 CARLISLE PIKE s RESTAURANT COMPANY, INC., : co Defendants : JURY TRIAL DEMANDED c-n IN RE: PLAINTIFF'S MOTION FOR CONTEMPT RULE TO SHOW CAUSE AND NOW, this 2 '/' day of August, 2010, upon consideration of the foregoing petition, it is hereby ordered and decreed as follows: 1. A rule is issued upon the defendant to show cause why the petitioner is not entitled to the relief requested; 2. the respondent shall file an answer to the petition within twenty (20) days of service; 3. the petition shall be decided under Pa. R.C.P. No. 206.7; 4. argument is set for October 7, 2010, at 4:00 p.m. in Courtroom Number 4; and 5. notice of the entry of this order shall be provided to all parties by the petitioners. BY THE COURT, Ores t'na :rL R44-'f tv. Pr'4 01-1f, . Oc,,L 10 %-?j 1 -? Kevin A. Hess, P. J. f` ?,r JOEL P. DINCHER, : IN THE COURT OF COMMON PLEAS Plaintiff, :CUMBERLAND COUNTY, PENNSYLVANIA v. : No. 06-5539 Civil DAVID J. THOMAS, 1851 RESTAURANT COMPANY, LLC, :CIVIL ACTION -LAW and EQUITY and 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC Defendants. JURY TRIAL DEMANDED AFFIDAVIT OF SERVICE AND NOW, I, Mark K. Emery, Esquire do hereby certify that the Cow Show Cause dated August 24, 2010 was served upon all Defendants on Augus by mailing a true and correct copy via United States first class mail, addressed Peter M. Good, Esquire Smigel, Anderson & Sacks, LLP 4431 North Front Street Harrisburg, PA 17110-1778 Counsel for all Defendants DATE: August 30, 2010 Respectfully submitted, ~. •- o a' IVY ~ >ws: -:~ s~ o _- r ~:,~ LAW OFFICES OF MARK K. EMERY By: ~~~~ Mark K. Emery, Esquire Supreme Court I.D. No 87 410 North Second Street Harrisburg, PA 17101 (717) 238-9883 Attorney for Plaintiff JOEL P. DINCHER, Plaintiff, v. DAVID J. THOMAS, 1851 RESTAURANT COMPANY, LLC, and 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 06-5539 Civil CIVIL ACTION -LAW and EQUITY JURY TRIAL DEMANDED ORDER ~~,~.~' AND NOW, this ~~ day of A~g~tst, 2010, upon consideration of Plaintiff s Motion for Contempt it is hereby ORDERED that Defendants shall fully comply with this Court's Order of January 14, 2010, and make payment of attorney's fees of $1000.00 within ten (10) days of the date of this Order. Further, Defendants shall make payment of an additional $200.00 in attorney's fees as incurred by Plaintiff in filing this Motion for Contempt, likewise within ten (10) days of the date of this Order. Failure to make payment as required herein shall be deemed a contempt of court and subject Defendants to additional sanctions and penalties. BY THE COURT Kevin ess, J. Distribution: c~a .-~ ~ -~, Mazk K. Emery, Esquire, 410 North Second Street, Harrisburg, PA 17101 / Peter J. Good, Esquire, 4431 North Front Street, Harrisburg, PA 17110 ~ °~ ~,~-'--~ ~~ ~ ~~ ~~ ~~ ~ ~ ° ~. ~~ ~~ o~ ~, ~ ° --i rn ~ y,. -+ ~. ~ ~a ~~~OOCT 27 P~4 ~~ JOEL P. DINCHER, ~-JP98~Ri.A~ ~~~~~.~~T THE COURT OF COMMON PLEAS Plaintiff, ~ ~ P1 ~~ $ ~~ 1-3~~~q ~ ~ : ;~ERLAND COUNTY, PENNSYLVANIA v. DAVID J. THOMAS, 1851 RESTAURANT COMPANY, LLC, and 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC Defendants. No. 06-5539 Civil CIVIL ACTION -LAW and EQUITY JURY TRIAL DEMANDED PLAINTIFF'S MOTION TO ENFORCE CONTEMPT PROCEEDINGS AND NOW, comes the Plaintiff, Joel P. Dincher, by and through his counsel, The Law Offices of Mark K. Emery, and files this Motion to Enforce Contempt Proceedings, as follows: 1. On January 14, 2010 this Court, by the Honorable Kevin A. Hess, entered judgment for Plaintiff and against all Defendants as a result of Defendants continued, willful failure to respond to prior court orders. As part of such ruling Defendants were found to be in contempt of court, and further ordered to pay counsel fees in the amount of $1000.00. A copy of said Order is attached hereto as Exhibit "A". 2. As Defendants ignored the requirement to make payment of counsel fees as ordered, Plaintiff was forced to file a Motion for Contempt on August 18, 2010. 3. The Court issued a Rule to Show cause upon Defendants on August 24, 2010, with a Rule Returnable 20 days thereafter and argument scheduled on such matter for October 7, 2010. 1 4. As has been their conduct throughout this litigation, all Defendants ignored the Court's Order and filed no response to the Rule, and neither they, nor their counsel of record, appeared for the scheduled argument. 5. Based upon Defendants failure to abide by the Order of January 14, 2010, the Court, through the Honorable Kevin A. Hess, entered a subsequent Order of October 7, 2010, providing Defendants 10 days to make payment of counsel fees of $1000, plus an additional award of attorney's fees of $200.00. "Failure to make payment as required herein shall be deemed a contempt of court and subject Defendants to additional sanctions and penalties." A copy of such Order is attached hereto as Exhibit "B". 6. Only subsequent to the oral argument of October 7, 2010 has the undersigned been advised that Defendant 1851 Restaurant Company, LLC. filed for Chapter 11 bankruptcy protection in the United States Bankruptcy Court for the Middle District of Pennsylvania on February 26, 2010, at docket number 1:10-bk-01568- MDF. No notice has ever been provided to Plaintiff, nor is Plaintiff listed on any schedule of creditors of Plaintiff. 7. Based upon the bankruptcy filing, this Motion is directed solely to Defendants Thomas and 6108 Carlisle Pike Restaurant Company, LLC. 8. The corporate Defendants are, upon information and belief, owned wholly by Defendant David J. Thomas and Mark D. Thomas, Esquire, who are the sole and joint shareholders, officers and directors of the corporate Defendants. 2 9. The shareholders and officers maybe held in contempt for the actions and inactions of the corporate Defendant 6108 Carlisle Pike Restaurant Company, LLC. 10. As Defendants have not complied with the Court's order of October 7, 2010, the Defendants and their corporate shareholders and officers are in contempt of court, and are subject to sanctions and additional penalties, along with the imposition of attorney's fees. 11. Plaintiff has and will incur attorney's fees of at least an additional $750.00 due to the blatant disregard of this Court's orders and their acts of contempt. 12. Counsel for Defendants has been contacted and advised of the filing of this Motion, and has not provided his consent. WHEREFORE, Plaintiffs respectfully request this Honorable Court enter an order scheduling a hearing on this matter at which time Defendants shall either purge the contempt proceedings or suffer the appropriate sanctions and penalties, including being held in the Cumberland County Prison until such time as the contempt finding is purged. It is further requested that Defendants be ordered to pay additional attorney's fees in the amount of $750.00, payable at the time of the hearing. 3 JOEL P. DINCHER, IN•THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW and EQUITY. N0. 2006-5539 CIVIL TERM DAVID J. THOMAS, - 1851 RESTAURANT COMPANY: LLC, and 6108 CARLISLE PIKE RESTAURANT COMPANY: LLC, Defendants JURY TRIAL DEMANDED IN RE :. MOTION FOR SANCTIONS ORDER OF COURT AND NOW, this 14th day of January, 2010, the defendant having been unresponsive to prior orders of court, and the court being satisfied that said unresponsiveness is willful on his part, he is adjudged in contempt of our prior court orders. We award counsel fees in a total amount of $1,000.00, and direct as a further sanction that judgment be entered on the question of liability and, therefore, the only issue to be adjudicated at the time of trial is the amount of damages. By the Court, Kevin Hess,. J. - Mark K. Emery, Esquire For Plaintiff Peter M. Good, Esquire _~ For Defendants -. - - : ,•~ ,'-%:,, -. ~. T~~1~ ~°~~~ ~~~- • ~n T~S~'t'#4(31'~~ ,,.•1 r ~~r'~; i ~t~.~ ~' ~fl~j'r~'; S:?1' IT1y ~lt~nid - ~ar~f #h~,s~~~~~- z'~, ±:?c,rt ~p.r..ar3sie, Pa. EXHIBIT .~~ ;4~~~[ rr - J - - - ~,. _ _ rofhonotary JOEL P. DINCHER, Plaintiff, v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 06-5539 Civil DAVID J. THOMAS, 1851 RESTAURANT COMPANY, LLC, :CIVIL ACTION -LAW and EQUITY and 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC . Defendants JURY TRIAL DEMANDED ORDER pc/L,6~v AND NOW, this ~' day of Asst, 2010, upon consideration of Plaintiff's Motion for Contempt it is hereby ORDERED that Defendants shall fully comply with this Court's Order of January 14, 2010, and make payment of attorney's fees of $1000.00 within ten (10) days of the date of this Order. Further, Defendants shall make payment of an additional $200.00 in attorney's fees as incurred by Plaintiff in filing this Motion for Contempt, likewise within ten (10) days of the date of this Order. Failure to make payment as required herein shall be deemed a contempt of court and subject Defendants to additional sanctions and penalties. BY THE COURT Kevin ess, J. Distribution: Mark K. Emery, Esquire, 410 North Second Street, Harrisburg, PA 17101 Peter J. Good, Esquire, 4431 North Front Street, Harrisburg, PA 17110 EXHfBIT Respectfully submitted, LAW OFFICES OF MARK K. EMERY B /' Y~ Mark K. Emery, Esquire Supreme Court I.D. No. 72787 410 North Second Street Harrisburg, PA 17101 (717) 238-9883 Attorney for Plaintiff DATE: October 25, 2010 4 CERTIFICATE OF SERVICE AND NOW, this 25th day of October, 2010, I, Mark K. Emery, Esquire do hereby certify that I have served the foregoing Motion to Enforce Contempt Proceedins by mailing a true and correct copy via United States first class mail, addressed as follows: Peter M. Good, Esquire Smigel, Anderson & Sacks, LLP 4431 North Front Street Harrisburg, PA 17110-1778 LAW OFFICES OF MARK K. EMERY By: ~~~~~~ Mark K. Emery i ~ JOEL P. DINCHER, Plaintiff, v. DAVID J. THOMAS, 1851 RESTAURANT COMPANY, LLC, and 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC Defendants NOV 01 LUtU IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 06-5539 Civil CIVIL ACTION -LAW and EQUITY JURY TRIAL DEMANDED ORDER ~lrk~u~ AND NOW, this ~ day offer, 2010, upon consideration of Plaintiff's Motion for to Enforce Contempt Proceedings, it is hereby ORDERED that a hearing on such maters shall be held on /~,A~i~t~.[~it. 1, d0 <D Q,~ 3 % 3~ ,~ ~ ~yl In Courtroom Number 4 in the Court of Common Pleas of Cumberland County, Pennsylvania. It is further ORDERED that Defendant David J. Thomas and Mark D. Thomas, as an officer, director an shareholder of 6108 Carlisle Pike Restaurant Company, LLC, shall be present before this Court at such hearing, or shall be subject to additional sanctions and penalties. BY THE COURT r~i ~A. Hess, J tribution: / k K. Emery, Esquire, 410 North Second Street, Harrisburg, PA 17101 Peter J. Good, Esquire, 4431 North Front Street, Harrisburg, PA 17110 -~S rrtd,~ « 3 f ~v ~~ c -r, 3; !,°I ~ r~ ~-- -~~;~> ~~ ~~ 0 ~~ -< a 0 x~. w c~ ~-! Z ~ rn ~~ ~Q c:~ , --ad z~ o-,Y on ~~ a _...M>..,.,. F"iL~D-OFFiC~ DF THE FRiJTHONOTARY SMIGEL, ANDERSON & SACKS, LLP Peter M. Good, Esquire River Chase Office Center 2~ (~ ~Q!~ - 4 ~j (~ ~ : ~ ~ I.D. No. 64316 4431 North Front Street, 3rd Floor Attorney for Defendants Harrisburg, PA 17110-1778 (;l.~r~~~tZ~f'~~~D COUNTY (717) 234-2401 ~ ~ i ~ ~~ ~ ~'A ~.\'~ ~ i Q JOEL P. DINCHER, IN THE COURT OF COMMON PLEAS Plaintiff, OF CUMBERLAND COUNTY, v• PENNSYLVANIA DAVID J. THOMAS, NO. 06-5539 CIVIL 1851 RESTAURANT COMPANY, LLC, and 6108 CARLISLE PIKE : RESTAURANT COMPANY, INC., Defendants. JURY TRIAL DEMANDED PETITION FOR LEAVE OF COURT TO WITHDRAW APPEARANCE AND NOW comes Defendants' Counsel Peter M. Good, Esquire, and Smigel, Anderson & Sacks, LLP (hereinafter "Petitioner"), to file the following Petition for Leave of Court to Withdraw Appearance and avers in support as follows: 1. Plaintiff Joel P. Dincher commenced this breach of employment contract against Defendants David J. Thomas, 1851 Restaurant Company, LLC, and 6108 Carlisle Pike Restaurant Company, Inc., (collectively referred to as "Defendants") by filing a Complaint on September 22, 2006. 2. On or about October 10, 2006, Petitioner agreed to represent Defendants with the understanding that Defendants would pay $1,000.00 as a retainer to be credited against time incurred in this matter at the rate of $250.00 per hour. 3. The agreement between the Petitioner and Defendants further provided that fees for time and costs incurred in this case would be billed monthly and were payable by Defendant upon receipt. 4. Petitioner represented Defendants in this matter through the pleadings and discovery portions of this litigation. 5. To date, Petitioner has incurred outstanding fees and expenses and Defendants have failed to pay their outstanding invoices in accordance with their representation agreement. 6. Petitioner has been asked by Defendants to stop representing them as they can no longer afford Petitioner's services. 7. Defendants have also stated to Petitioner that they intend to file bankruptcy which would effectively stay any civil proceeding against them, including this instant lawsuit. 8. Defendant David J. Thomas has in fact filed bankruptcy, which is pending at Docket No. 1:10-bk-00261-RNO in the United States Bankruptcy Court for the Middle District of Pennsylvania. 9. In light of Defendants' request that Petitioner stop representing them and the bankruptcy filed by Defendant David J. Thomas, Petitioner advised Defendants that Petitioner would be petitioning this Court to withdraw as Defendants' counsel. 10. The address of Defendants is David J. Thomas, 110 Walnut Street, Lemoyne, Cumberland County, Pennsylvania 17043. 11. Petitioner has advised counsel for the Plaintiff Mark K. Emery, Esquire that neither Peter M. Good, Esquire nor Smigel, Anderson & Sacks, LLP no longer represents any of the Defendants and that Defendants have stated to Petitioner that they intended to file bankruptcy. 12. Unless this Petition is granted, Petitioner will incur hardship, as set forth more particularly above. WHEREFORE, Petitioner requests that this Court grant the Petition for leave to withdraw as counsel for Defendants. Respectfully submitted, SMIGEL, ANDERSON & SACKS, L.L.P. Date: ~~ ~ / d By: / ~~ Peter M. Good, Esqu re - ID #64316 4431 North Front Street, 3`d Floor Harrisburg, PA 17110 (717) 234-2401 Attorney for Defendants SMIGEL, ANDERSON & SACKS, LLP Peter M. Good, Esquire River Chase Office Center I.D. No. 64316 4431 North Front Street, 3rd Floor Darryl J. Liguori, Esquire Harrisburg, PA 17110-1778 I.D. No. 91715 (717) 234-2401 Attorneys for Defendants JOEL P. DINCHER, 1N THE COURT OF COMMON PLEAS Plaintiff, OF CUMBERLAND COUNTY, v. PENNSYLVANIA DAVID J. THOMAS, : NO. 06-5539 CIVIL 1851 RESTAURANT COMPANY, LLC, and 6108 CARLISLE PIKE RESTAURANT COMPANY, INC., Defendants. JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Peter M. Good, Esquire, attorney for the Defendants in the above-captioned matter, certify that I this day served a copy of the foregoing Petition for Leave of Court to Withdraw Appearance upon the person(s) indicated below by depositing a copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, and addressed as follows: Mark K. Emery, Esquire 410 North Second Street Harrisburg, PA 17101 Attorney for Plaintiff David J. Thomas 10 Walnut Street Lemoyne, PA 17043. Pro-Se Defendant SMIGEL, ANDERSON & SACKS, L.L.P. /~ A . 1~ Date: ~!~ ~~ (/ Peter M. Good, Esquire - ID #64316 Darryl J. Liguori, Esquire - ID #91715 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys for Defendants NOVp5 20111 .1 1 JOEL P. DINCHER, IN THE COURT O COMMON-PLEAS Plaintiff, OF CUMBERLAN COUNTY; V. PENNSYLVANIA DAVID J. THOMAS, NO. 06-5539 CIVI 1851 RESTAURANT COMPANY, LLC, and 6108 CARLISLE PIKE RESTAURANT COMPANY, INC., Defendants. JURY TRIAL DE ANDED ORDER AND NOW, this _ day of ,&' , 2010, upon consi eration of the Petition of Defendants, it is hereby ORDERED that: (1) a rule is issued upon the respondent to show cause why t e petitioner is not entitled to the relief requested. (2) The respondent shall file an answer to the petition withi twenty (20) days of services. (3) The petition shall be decided under Pa. R.C.P. 206.7. e (5) Argument shall be eld on rm 2010, at _ 3 ° in Courtroom of the Cumberland County ourt of Common Pleas; (6) Notice of the entry of this order shall be provided to al arties by the petitioner. BY THE COURT: D rjibution: Mark K. Emery, Esquire, 410 North Second Street, Harrisburg, PA 1 101 (Attorney for Plaintiff). Peter M. Good, Esquire, Smigel, Anderson & Sacks, LLP, River Ch se Office Center, 3rd Floor, 4431 North Front Street, Harrisburg, PA 17110 (Attorney for efendants). ,? .? David J. Thomas, 110 Walnut Street, Lemoyne, PA 17043 (D fendant). OF THE PROTHONOTARY 2010 DEC -2 PM 1:34 CUMBERLAND COUNTY PENNSYLVANIA Johnson, Duffie, Stewart & Weidner By: Kevin E. Osborne I.D. No. 34991 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 keo@jdsw.com JOEL P. DINCHER, Plaintiff, V. DAVID J. THOMAS, 1851 RESTAURANT COMPANY, LLC, and 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC, : Defendants. NO. 06-5539 CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Kindly enter my appearance on behalf of Defendants David J. Thomas and 6108 Carlisle Pike Restaurant Company, LLC, in the above-captioned action. Respectfully submitted, JOHNSON, DUFFIE, STEWA T & EIDNER By: e Kevin E. Osborne, Esquire Attorney I.D. No. 34991 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendants David J. Thomas and 6108 Carlisle Pike Restaurant Company, LLC Attorneys for Defendants David J. Thomas and 6108 Carlisle Pike Restaurant Company, LLC IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CERTIFICATE OF SERVICE AND NOW, this 1St day of December, 2010, the undersigned does hereby certify that she did this date serve a copy of the foregoing document upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Mark K. Emery, Esquire 410 North Second Street Harrisburg, PA 17101 Counsel for Plaintiff Peter M. Good, Esquire Smigel, Anderson & Sacks, LLP 4431 North Front Street Harrisburg, PA 17110-1709 JOHNSON, DUFFIE, STEWART & WEIDNER sy: r? C lissa A. Scholly :422870 JOEL P. DINCHER, V. Plaintiff, DAVID J. THOMAS, 1851 RESTAURANT COMPANY, LLC, and 6108 CARLISLE PIKE RESTAURANT COMPANY, INC., Defendants. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,:2 f PENNSYLVANIA NO. 06-5539 CIVIL, ° w JURY TRIAL DEMANDED, PRAECIPE TO WITHDRAW APPEARANCE TO THE PROTHONOTARY: Please withdraw our appearance on behalf of the Defendants. As of this date, Kevin E. Osborne, Esquire has entered his appearance on behalf of the Defendants. Respectfully submitted, Date: December 1, 2010 SMIGGEL, ANDERSON & SACKS, L.L.P. By: Pe er M. Good, Esquire ID #64316 Darryl J. Liguori, Esquire ID #91715 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys for Defendants SMIGEL, ANDERSON & SACKS, LLP River Chase Office Center 4431 North Front Street, 3rd Floor Harrisburg, PA 17110-1778 (717) 234-2401 Peter M. Good, Esquire I.D. No. 64316 Darryl J. Liguori, Esquire I.D. No. 91715 Attorneys for Defendants JOEL P. DINCHER, IN THE COURT OF COMMON PLEAS Plaintiff, OF CUMBERLAND COUNTY, V. PENNSYLVANIA DAVID J. THOMAS, NO. 06-5539 CIVIL 1851 RESTAURANT COMPANY, LLC, and 6108 CARLISLE PIKE RESTAURANT COMPANY, INC., Defendants. JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Peter M. Good, Esquire, attorney for the Defendants in the above-captioned matter, certify that I this day served a copy of the foregoing Praecipe to Withdraw Appearance upon the person(s) indicated below by depositing a copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, and addressed as follows: Mark K. Emery, Esquire Kevin E. Osborne, Esquire 410 North Second Street Johnson, Duffle, Stewart & Weidner Harrisburg, PA 17101 301 Market Street, PO Box 109 Attorney for Plaintiff Lemoyne, PA 170430109 Attorney for Defendants SMIGEL, ANDERSON & SACKS, L.L.P Date: December 1, 2010 B Y lvz / ?', Peter M. Good, Esq ire - ID #64316 Darryl J. Liguori, Esquire - ID #9171:5 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys for Defendants DF TH AR' E PR©THONOT 2010 DEC -6 PM 3: 4 4 JOEL P. DINCHER, CUMBERLAND CQi?E COURT OF COMMON PLEAS Plaintiff, PENNSYL.YAtd ERLAND COUNTY, PENNSYLVANIA V. :No. 06-5539 Civil DAVID J. THOMAS, 1851 RESTAURANT COMPANY, LLC, : CIVIL ACTION - LAW and EQUITY and 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC Defendants. : JURY TRIAL DEMANDED PRAECIPE TO WITHDRAW MOTION TO ENFORCE CONTEMPT PROCEEDINGS TO THE PROTHONOTARY: Please mark as withdrawn Plaintiff's Motion to Enforce Contempt Proceedings, filed October 27, 2010. Respectfully submitted, LAW OFFICES OF MARK K. EMERY By: '; ? ?? Mark K. Emery, Esquire Supreme Court I.D. No. 72787 410 North Second Street Harrisburg, PA 17101 (717) 238-9883 Attorney for Plaintiff DATE: December 1, 2010 r CERTIFICATE OF SERVICE AND NOW, this 1" day of December, 2010, I, Mark K. Emery, Esquire do hereby certify that I have served the foregoing Praecipe to Withdraw Motion to Enforce Contempt Proceedings by mailing a true and correct copy via United States first class mail, addressed as follows: Kevin E.Osbourne, Esquire JOHNSON DUFFIE 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 LAW OFFICES OF MARK K. EMERY By:? Mark K. Emery JOEL P. DINCHER, : IN THE COURT OF COMMON PLEAS Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA V. :No. 06-5539 Civil , DAVID J. THOMAS, 7, 1851 RESTAURANT COMPANY, LLC, : CIVIL ACTION - LAW and EQUI' . s = and 6108 CARLISLE PIKE ? x 4' RESTAURANT COMPANY, LLC { CD Defendants. , =? JURY TRIAL DEMANDED PLAINTIFF'S MOTION TO COMPEL ANSWERS TO DISCOVERIV AND FOR SANCTIONS AND ATTORNEY'S FEES AND NOW, comes the Plaintiff, Joel P. Dincher, by and through his counsel, The Law Offices of Mark K. Emery, and files this Motion to Compel Answers to Discovery and Motion for Sanctions and Attorney's Fees, as follows: On January 14, 2010 this Court, by the Honorable Kevin A. Hess, entered judgment, as to liability only, for Plaintiff and against all Defendants as a result of Defendants continued, willful failure to respond to prior court orders, including orders pertaining to Defendants' willful refusal to respond to discovery requests. As part of such ruling Defendants were found to be in contempt of court, and further ordered to pay counsel fees in the amount of $1000.00. A copy of said Order is attached hereto as Exhibit "A". Left unresolved is the issue as to damages, including the value of Plaintiff's ownership interest in the corporate entity. 2. As Defendants ignored the requirement to make payment of counsel fees as ordered, Plaintiff was forced to file a Motion for Contempt on August 18, 2010. 3. The Court issued a Rule to Show cause upon Defendants on August 24, 2010, with a Rule Returnable 20 days thereafter and argument scheduled on such matter for October 7, 2010. 4. As has been their conduct throughout this litigation, all Defendants ignored the Court's Order and filed no response to the Rule, and neither they, nor their counsel of record, appeared for the scheduled argument. 5. Based upon Defendants failure to abide by the Order of January 14, 2010, the Court, through the Honorable Kevin A. Hess, entered a subsequent Order of October 7, 2010, providing Defendants 10 days to make payment of counsel fees of $1000, plus an additional award of attorney's fees of $200.00. "Failure to make payment as required herein shall be deemed a contempt of court and subject Defendants to additional sanctions and penalties." A copy of such Order is attached hereto as Exhibit "B". 6. Only subsequent to the oral argument of October 7, 2010 was Plaintiff advised that Defendant 1851 Restaurant Company, LLC. filed for Chapter 11 bankruptcy protection in the United States Bankruptcy Court for the Middle District of Pennsylvania on February 26, 2010, at docket number 1:10-bk-01568-MDF. No notice has ever been provided to Plaintiff, nor is Plaintiff listed on any schedule of creditors of Defendant 1851 Restaurant Company. 7. Based upon the bankruptcy filing, this Motion is directed solely to Defendants David J. Thomas and 6108 Carlisle Pike Restaurant Company, LLC. (hereinafter "6108 Carlisle Pike") 2 8. The Defendant 6108 Carlisle Pike is, upon information and belief, owned wholly and/or controlled by Defendant David J. Thomas and Mark D. Thomas, Esquire. 9. As Defendants had not complied with the Court's order of October 7, 2010, a contempt hearing was scheduled before the Honorable Judge Hess for December 1, 2010. 10. On the day prior to such hearing, Defendants' new counsel, Kevin E. Osborne, Esquire, contacted the undersigned. At such time the parties negotiated a resolution of the contempt matter whereby Plaintiff accepted a lesser amount in reimbursement of attorney's fees in consideration for Defendants' promise to provide all requested corporate and personal documents necessary to make a valuation of the Defendant 6108 Carlisle Pike and bring the remaining issue of damages to trial. 11. During the pendency of this action, and without any notice to Plaintiff (and presumably without notice of the pending action to the buyer) Defendant 6108 Carlisle Pike sold all of its assets to a third party. 12. Despite the agreement of counsel, Defendants have failed and refused to provide the requested and necessary documents pertaining to Defendant Thomas' use of the assets of 6108 Carlisle Pike, the operations and valuation of Defendant 6108 Carlisle Pike, the sale of Defendant 6108 Carlisle Pike's assets, and the use of the proceeds of such sale. 13. As a result of Defendants' failure to abide by their agreement, Plaintiff was required to serve upon Defendants his Fourth Request for Production of Documents and Second Set of Written Interrogatories. These discovery requests, 3 sent February 11, 2011, are attached and incorporated fully herein as Exhibits "C" and "D", respectively. 14. As has been Defendants course and conduct throughout this litigation, they have simply ignored these discovery requests. 15. Absent Defendants providing the requested documents pertaining to the business operations, sale of the assets of 6108 Carlisle Pike and use of all sale proceeds, it is impossible for Plaintiff to determine the value of his damages or prepare for trial. 16. Defendants are the sole source of the information necessary for Plaintiff to assess and prove his damages, and it is clear that Defendants' actions are with the sole intent of inhibiting Plaintiff's rights and remedies. 17. Defendants past and current conduct, particularly their continued concealment of relevant documents and information, has necessitated Plaintiff incurring the cost of multiple efforts to obtain the information which is readily available to Defendants. 18. Defendants' historical and ongoing conduct throughout this litigation, the previous determinations that Defendants were in contempt of court, as well as their fraud upon both Plaintiff and the United States Bankruptcy Court as part of their knowing and purposeful failure to identify Plaintiff as a judgment creditor, requires this Court to limit the period of time for which Defendants must respond fully to the outstanding discovery requests to 10 days, and impose attorney's fees immediately. 4 19. Plaintiff continues to incur excessive and unnecessary counsel fees due to the obdurate and vexatious conduct of Defendants, including at least $750.00 in counsel fees as a result of Defendants actions as set forth within this Motion. Said fees shall increase upon the disposition of this Motion. 20. Counsel for Defendants has been contacted and advised of the filing of this Motion, and has not provided his consent. WHEREFORE, Plaintiffs respectfully request this Honorable Court enter an order requiring Defendants Thomas and 6108 Carlisle Pike to provide full and complete answers to Plaintiff's Fourth Request for Production of Documents and Second Set of Written Interrogatories, and further pay attorney's fees, within 10 days of the date of such order or suffer the appropriate sanctions and penalties, said penalties including a finding of contempt of court and all other penalties necessary to compel compliance with this Court's orders. Respectfully submitted, LAW OFFICES OF MARK K. EMERY By: Mark K. Emery, Esquire Supreme Court I.D. No. 72787 410 North Second Street Harrisburg, PA 17101 (717) 238-9883 Attorney for Plaintiff DATE: March 22, 2011 5 JOEL P. DINCHER, IN- THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW and EQUITY. NO. 2006-5539 CIVIL TERM DAVID J. THOMAS, 1851 RESTAURANT COMPANY: LLC, and 6108 CARLISLE : PIKE RESTAURANT COMPANY: LLC, Defendants JURY TRIAL DEMANDED IN RE:. MOTION FOR SANCTIONS ORDER OF COURT AND NOW, this 14th day of January, 2010, the defendant having been unresponsive to prior orders of court, and the court being satisfied that said unresponsiveness is willful on his part, he is adjudged in contempt of our prior court orders. We award counsel fees in a total amount of $1,000.00, and direct as a further sanction that judgment. be entered on the question of liability and, therefore, the only issue to be adjudicated at the time of trial is the amount of damages. By the Court, Mark K. Emery, Esquire For Plaintiff Peter M. Good, Esquire For Defendants bg EXHIBIT Kevin Hess,'J. In TcSt Ear t ,'f .s ftr " 0'1cl my hared ,and the Lea i;3fe Pa. 4 JOEL P. DINCHER, Plaintiff, V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 06-5539 Civil DAVID J. THOMAS, ; 1851 RESTAURANT COMPANY, LLC, : CIVIL ACTION - LAW and EQUITY and 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC. Defendants JURY TRIAL DEMANDED ORDER Opole by AND NOW, this day of Asst, 2010, upon consideration of Plaintiff's Motion for Contempt it is hereby ORDERED that Defendants shall fully comply with this Court's Order of January 14, 2010, and make payment of attorney's fees of $1000.00 within ten (10) days of the date of this Order. Further, Defendants shall make payment of an additional $200.00 in attorney's fees as incurred by Plaintiff in filing this Motion for Contempt, likewise within ten (10) days of the date of this Order. Failure to make payment as required herein shall be deemed a contempt of court and subject Defendants to additional sanctions and penalties. BY THE COURT ? r Kevin . ess, J. Distribution: Mark K. Emery, Esquire, 410 North Second Street, Harrisburg, PA 17101 Peter J. Good, Esquire, 4431 North Front Street, Harrisburg, PA 17110 EXHIBIT F P JOEL P. DINCHER, Plaintiff, V. DAVID J. THOMAS, 1851 RESTAURANT COMPANY, LLC, and 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : No. 06-5539 Civil : CIVIL ACTION - LAW and EQUITY : JURY TRIAL DEMANDED PLAINTIFF'S FOURTH REQUEST FOR PRODUCTION OF DOCUMENTS PROPOUNDED UPON DAVID J. THOMAS AND 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC TO: David J. Thomas and 6108 Carlisle Pike Restaurant Company, LLC c/o Kevin E. Osbourne, Esquire JOHNSON DUFFIE 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 YOU ARE HEREBY REQUESTED, pursuant to Pa. R.C.P. 4009, to produce the following documents and other physical objects for inspection and copying, within no more than thirty (30) days after service hereof, or as otherwise set by law, at the offices of Plaintiffs counsel, The Law Offices of Mark K. Emery, or alternatively, by delivering copies of the same to the Plaintiffs counsel at the aforesaid address. This Request for Production of Documents is deemed continuing so as to require a supplemental answer if Defendant, or Defendants' agents or representatives obtain other information between the time the answers are served and the time of trial. Documents for which a proper claim of privilege can be substantiated are expressly excluded from this request, except that Plaintiff requests that Defendants identify all documents for which privilege is claimed, and specify the exact grounds upon which the claim for privilege is based. EXHIBIT & x DEFINITIONS AND DIRECTIVES directives: The following request to produce is governed by the following definitions and 1. "You" and "Your" shall mean Defendant, jointly or singularly, its officers, agents and employees. 2. "Document" shall mean all forms of recorded data or information, including writings of any kind, including the originals and all non-identical copies, whether different from the originals by reason of any notation made on such copies or otherwise (including, without limitation, correspondence memoranda, notes, work sheets, diaries, statistics, letters, telegrams, telex, telefax, minutes, contracts, reports, studies, checks, statements, receipts, returns, summaries, pamphlets, books); notations of any sort of conversations, telephone calls, meetings or other communications; bulletins or printed matter of any type, and all forms of drafts, notations, workings, alterations, modifications, changes or amendments of any of the foregoing; graphical or oral records or representations of any kind (including, without limitation, photographs, films, charts, graphs, videotapes, recordings, and motion pictures); and electrical records or representations of any kind (including, without limitation, tapes, cassettes, disks and recordings). 3. "Pertain to" shall be interpreted to include relating to, referring to, reflecting, regarding, constituting, concerning or having as its subject matter, in any manner whatsoever, directly or indirectly, expressly or implied, the subject matter of the specific request. 4. "Communication" includes, but is not limited to, all written or oral discussions, statements, conversations, memoranda, notations, letters, notices or any document. 5. If any request for documents is deemed to call for production of privileged or work product materials and such privilege or work product is asserted, identify in writing each document so withheld. If only a portion of a document is privileged or work product, then redact and identify such portion thereof that is withheld. With regard to all documents or all portions of documents withheld, provide the following information: (a) The reason for withholding the documents; (b) The statement for the basis of the claim of privilege, work product or other ground of non-disclosure; (c) A brief description of the document, R including: (i) the date of the document; (ii) number of pages, attachments and appendices; (iii) the names of its author, authors or preparers and an identification by employment and title of each such person; (iv) the name of each person who was sent, or shown blind copies or carbon copies or has had access to or custody of the document together with an identification of each such person; (v) the present custodian; and (vi) the subject matter of the document and in the case of any document relating to or referring to a meeting or conversation, identification of such meeting or conversation. 1 REQUESTED DOCUMENTS 1. All documents identified in your Answers to Plaintiff's Second Set of Written Interrogatories. 2. All Federal Tax Returns, with schedules, for each Defendant from 2002 to the present. 3. The complete sales agreement, including and addendums or related documents, for the sale of assets from 6108 Carlisle Pike Restaurant Company, LLC to Brown Restaurant 3, LLC. 4. All correspondence or other documentation exchanged between you and Brown Restaurant 3, LLC. 5. The complete Application, including all forms, addendums and additional documents submitted to the Liquor Control Board, for transfer of the liquor license from 6108 Carlisle Pike Restaurant Company, LLC to Brown Restaurant 3, LLC. 6. Defendant 6108 Carlisle Pike Restaurant Company, LLC's bank statements from 2007 to the present. 7. All internal profit and loss statements, balance sheets or account registers, including all computer programs and electronic storage devices, for 6108 Carlisle Pike Restaurant Company, LLC from 2007 to the present. 8. All payroll records for Defendant 6108 Carlisle Pike Restaurant Company, LLC from 2007 to the present. 9. Defendant Thomas' bank statements from 2007 to the present. 10. All documents evidencing the taxes due the Pennsylvania's Department of Revenue and Department of Labor and Industry, and the Internal Revenue Service, and the payoffs made at the sale of Defendant 6108 Carlisle Pike Restaurant Company, LLC, including all notices or other correspondence from such entities. 11. All correspondence, notices or other documents exchanged between either Defendant and Pennsylvania's Department of Revenue and Department of Labor and Industry, and the Internal Revenue Service, for years 2006 to the present. 12. Each liquor license renewal application filed by Defendant 6108 Carlisle Pike Restaurant Company, LLC from 2005 to 2009. Respectfully submitted, LAW OFFICES OF MARK K. EMERY By: Mark K. Emery, Esquire Supreme Court I.D. No. 72787 410 North Second Street Harrisburg, PA 17101 (717) 238-9883 Attorney for Plaintiff DATE: February 11, 2011 CERTIFICATE OF SERVICE AND NOW, this 11"' day of February 2011, I, Mark K. Emery, Esquire do hereby certify that I have served the foregoing Fourth Request for Production of Documents Propounded Upon Defendants David J. Thomas and 6108 Carlisle Pike Restaurant Company, LLC by mailing a true and correct copy via United States first class mail, addressed as follows: Kevin E.Osborne, Esquire JOHNSON DUFFIE 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 LAW OFFICES OF MARK K. EMERY By: Mark K. Emery JOEL P. DINCHER, Plaintiff, V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA :No. 06-5539 Civil DAVID J. THOMAS, 1851 RESTAURANT COMPANY, LLC, : CIVIL ACTION - LAW and EQUITY and 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC Defendants. . JURY TRIAL DEMANDED PLAINTIFF'S SCOND SET OF WRITTEN INTERROGATORIES PROPOUNDED UPON DAVID J. THOMAS AND 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC TO: David J. Thomas and 6108 Carlisle Pike Restaurant Company, LLC Kevin E. Osbourne, Esquire JOHNSON DUFFIE 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 These Interrogatories are propounded pursuant to the Pennsylvania Rules of Civil Procedure and are to be answered by the Defendant in accordance therewith. Defendant is required to answer these Interrogatories in writing under oath, based upon all information available to it and to its attorneys, employees, and other agents, or representatives. Defendant is also required to serve answers to these Interrogatories within thirty (30) days, or as otherwise set by law, to the offices of Plaintiffs' counsel, The Law Offices of Mark K. Emery, 410 North Second Street, Harrisburg, PA 17101, and supplement its answers in accordance with the Pennsylvania Rules of Civil Procedure. EXHIBIT Instructions 1. The following Interrogatories are to be answered in writing, verified, and served upon the undersigned within thirty (30) days of service upon you. Objections must be signed by the attorney raising the objection. In answering, you must furnish any and all information available to you, your employees, representatives, agents and attorneys. Your answers must be supplemented and amended as required by the Pennsylvania Rules of Civil Procedure. 2. With respect to any claim of privilege or immunity from discovery, you must identify the privilege or immunity asserted and provides sufficient information to substantiate the claim. 3. In lieu of identifying documents in response to these Interrogatories, you may provide copies of such documents with appropriate references to the corresponding Interrogatories. 4. These Interrogatories shall be construed and interpreted in accordance with the Pennsylvania Rules of Civil Procedure. Definitions 1. "Document", when used herein, means any record, including any object which contains written, printed, typed or magnetically recorded information, a graphic or photographic representation or sound, however produced or reproduced. Document includes an original or any copy of any statement, report, letter, memorandum, book, article, note, blueprint, drawing, sketch, photograph, motion picture, videotape, phonograph, compact disc or any other sound recording. Document also includes any card, disc, magnetic tape, printout, data cell, drum and any other data compilations designed for the storage of information in conjunction with a computer or any other word/data processing system. 2. "Identify" or "Identity", when used herein with respect to: a. A natural person means to state: i. the person's full name; ii. the person's present or last known address; and iii. the person's employer and employer's address at the time of the events referred to in the Interrogatory. b. An entity other than an individual, including a corporation, partnership, limited liability company or partnership, unincorporated association, governmental agency, etc. or a subsidiary, division, or subdivision thereof, means to state: i. Its full corporate name; ii. the date and place of incorporation, if known; iii. the present or last known address of the entity; and iv. if applicable, the full names and present or last known address of the entity's subsidiary, division or subdivision. c. A document, as defined above, means to state: i. the nature of the document (i.e. whether it is a report, statement, letter, etc.); ii. the title of the document, or if no title, a description of the document sufficient to identify same; iii. the identity of the person(s) who prepared the document; iv. the identity of the person(s) for whom the document was prepared or to whom the document was directed; V. the date the document was prepared; and vi. the identity of the present custodian of the document or any copy of the document. d. An oral communication means to state: i. the date the communication occurred; ii. the place where the communication occurred; iii. the substance of the communication; iv. the identify of the person(s) who made the communication; V. the identity of each person to whom such communication was made; and vi. the identity of each person who was present when such communication was made. e. Any other context means to provide a description with sufficient particularity that the thing may thereafter be specified and recognized, including relevant dates and places, the identification of relevant people, entities, and documents. 3. "Person", when used herein refers to a natural person, association, partnership, corporation, or government agency. 4. "You" or "Your", when used herein, refers to David I Thomas and 6108 Carlisle Pike Restaurant Company, LLC , jointly or singularly, their agents, representatives, servants, and/or employees. 1. Identify each bank account, including account number, for each checking, savings, money market or other financial account held by each Defendant for years 2007 to the present. 2. Identify any individual or entity who performed legal services for Defendant 6108 Carlisle Pike Restaurant Company, LLC , or who was paid by such Defendant, for years 2007 to the present, in addition identify: a. the amount paid for each year; b. a specific breakdown of the purpose for such representation. I} 3. Identify any individual or entity who performed accounting, payroll and/or bookkeeping services for Defendant 6108 Carlisle Pike Restaurant Company, LLC , or who was paid by such Defendant, for years 2007 to the present 4. Identify each charge or lien paid to the Department of Revenue, Department of Labor and Industry and Internal Revenue Service as part of the closing on the sale of Defendant 6108 Carlisle Pike Restaurant Company, LLC, and in addition identify: a. the date each specific lien was incurred or years in which such lien was incurred; b. the specific entity which incurred such lien; C. all documents or correspondence exchanged between you and the Department of Revenue, Department of Labor and Industry and Internal Revenue Service which relates or pertains to such liens. ,i 5. Identify all income, whether it be by payroll, distributions, equity draws or otherwise received by Defendant Thomas from Defendant 6108 Carlisle Pike Restaurant Company, LLC, for each year from 2006 to the present. 6. Identify all benefits provided to Defendant Thomas from Defendant 6108 Carlisle Pike Restaurant Company, LLC, such as health, retirement or other, for each year from 2006 to the present, specifically identifying: a. each benefit by year; b. the yearly cost of each benefit. k1 7. Identify all other benefits, such as vehicle allowance, cell phone or other personal item provided to Defendant Thomas by Defendant 6108 Carlisle Pike Restaurant Company, LLC for each year from 2006 to the present, specifically identifying: a. each benefit by year; b. the yearly cost of each benefit. IF 8. Identify the sources of all personal income obtained by Defendant Thomas for years 2006 to 2010, stating the specific source and yearly amount obtained from such source. Respectfully submitted, LAW OFFICES OF MARK K. EMERY By: _ Mark K. Emery, Esquire Supreme Court I.D. No. 72787 410 North Second Street Harrisburg, PA 17101 (717) 238-9883 Attorney for Plaintiff DATE: February 11, 2011 .f r. CERTIFICATE OF SERVICE AND NOW, this 110' day of February 2011, I, Mark K. Emery, Esquire do hereby certify that I have served the foregoing Second Set of Written Interrogatories Propounded Upon Defendants David J. Thomas and 6108 Carlisle Pike Restaurant Company, LLC by mailing a true and correct copy via United States first class mail, addressed as follows: Kevin E.Osborne, Esquire JOHNSON DUFFIE 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 LAW OFFICES OF MARK K. EMERY By: Mark K. Emery { r CERTIFICATE OF SERVICE AND NOW, this 22nd day of March 2011, I, Mark K. Emery, Esquire do hereby certify that I have served the foregoing Motion to Compel Answers to Discovery and for Sanctions and Attorney's Fees by mailing a true and correct copy via United States first class mail, addressed as follows: Kevin E.Osborne, Esquire JOHNSON DUFFIE 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 LAW OFFICES OF MARK K. EMERY By: Mark K. Emery JOEL P. DINCHER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - LAW p NO. 06-5539 CIVIL o Z DAVID J. THOMAS, 1851 Z rx RESTAURANT COMPANY, LLC, rte'.. © rn and 6108 CARLISLE PIKE ca v {a RESTAURANT COMPANY, INC., : NDED Z Defendants JURY TRIAL DEMA X c.) 5:c:: N q IN RE: PLAINTIFF'S MOTION TO COMPEL ANSWERS ° c AND MOTION FOR SANCTIONS AND ATTORNEY'S FEES ORDER AND NOW, this Z y' day of March, 2011, a brief argument on the plaintiff's motion to compel answers and motion for sanctions and for attorney's fees is set for Friday, April 1, 2011, at 9:15 a.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, .4 Kevin . Hess, J. Mark K. Emery, Esquire For the Plaintiff Kevin E. Osborne, Esquire For the Defendants P 3?a3I ti bK8 :rlm JOEL P. DINCHER, Plaintiff, V. DAVID J. THOMAS, 1851 RESTAURANT COMPANY, LLC, and 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC Defendants. O IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 06-5539 Civil G i° CIVIL ACTION - LAW and EQU C5 JURY TRIAL DEMANDED vo ER rn RD A w..! AND NOW, this v day of Mtrch, 2011, upon consideration of Plaintiff's Motion to Compel Answers to Discovery and Motion for Sanctions and Attorney's Fees, as well as the prior motions and findings of contempt against Defendants, it is hereby ORDERED that Defendants shall serve full and complete responses to Plaintiff's Fourth Request for Production of Documents and Second Set of Written Interrogatories within f; Ft..,. C ,s') 4(-40) days of the date of this Order, or be found to be in contempt of court and suffer the appropriate sanctions. Defendants are further ordered to pay attorney's fees of $750.00 to Plaintiff /-S' within Ways of the date of this Order. BY THE COURT x., 1.4 J. Distribution: ?Mark K. Emery, Esquire, 410 North Second Street, Harrisburg, PA 17101 Kevin E. Osborne, Esquire, 301 Market Street, PO Box 109, Lemoyne, PA 17043-0109 C .l es ?! uc?? P c?sa%n I(l g "*t z-n C)'n =F v i2,- c 41111 1 Johnson, Duffle, Stewart & Weidner By: Kevin E. Osborne I.D. No. 34991 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 keo@jdsw.com JOEL P. DINCHER, Plaintiff, V. DAVID J. THOMAS, 1851 RESTAURANT COMPANY, LLC, and 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC, Defendants. NO. 06-5539 CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Kindly withdraw my appearance on behalf of Defendants David J. Thomas and 6108 Carlisle Pike Restaurant Company, LLC in the above-captioned action. Respectfully submitted, Y Kevin E. Osborne, Esquire Attorney I.D. No. 34991 301 Market Street P. O. Box 109 /S_ Lemoyne, PA 17043-0109 Date: Telephone (717) 761-4540 :443698 iSif Pt t. .fk i 'Zoi I JUN 16 PIA 2: CUMBERLAND rPEN dSYI-VA N IA Attorneys for Defendants David J. Thomas and 6108 Carlisle Pike Restaurant Company, LLC JOHNSON, DUFFIE,, STgWA T & WEIDNER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KEVIN E. OSBORNE, ESQUIRE Pa. Supreme Court I.D. No. 34991 MARGOLIS EDELSTEIN 3510 Trindle Road Camp Hill, Pennsylvania 17011 Telephone: 717-975-8114 Direct Dial: 717-760-7504 Fax: 717-975-8124 E-Mail: kosborne@margolisedelstein.com JOEL P. DINCHER, : IN THE COURT OF COMMON Plaintiff, : CUMBERLAND COUNTY, PET CIVIL ACTION - LAW V. NO. 06-5539 DAVID J. THOMAS, 1851 RESTAURANT COMPANY, LLC, and 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC, Defendants. : JURY TRIAL DEMANDED PRAECIPE TO ENTER APPEARANCE EAR TO THE PROTHONOTARY OF CUMBERLAND COUNTY, PENNSYLVANIA: Kindly enter my appearance on behalf of Defendants, David J. Thomas, and 6108 Carlisle Pike Restaurant Company, LLC, in the above-captioned matter. Respectfully submitted, MARGOLIS EDELSTEIN Date: By: KEVIN E. OSBORNE, ESQUIRE PA. Attorney I.D. No. 34991 Attorney for Defendants, DAVID J. THOMAS, and 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC 3510 Trindle Road Camp Hill, PA 17011 (717) 975-8114 Direct: (717) 760-7504 Fax: (717) 975-8124 Email: kosborne@margolisedelstein.com Attorneys for Defendants: DAVID J. THOMAS, and 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing PRAECIPE FOR WITHDRAWAL OF APPEARANCE and PRAECIPE TO ENTER APPEARANCE on all counsel of record by placing the same in the United States mail mp Hill, Pennsylvania, first-class postage prepaid, on the/- d of 2011, and addressed as follows: Mark K. Emery, Esquire Law Offices of Mark K. Emery 410 North Second Street Harrisburg, PA 17101 MARGOLIS EDELSTEIN Ann E. Nelson, Secret y David -D. Ouea- Prothonotoy Offic^th~/�*�+�~��tn�� e _ - - ' -/ ��� /����� - '. County, _--_/''_'-- --.-g` _-Q Solicitor 6/15 4.53 CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 28TR DAY OF OCTOBER, 2014, AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE —THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH BY THE COURT, DAVID D. BUELL PROTHONOTARY One Courthouse Square Suite200 e cart-7:de TA (Phone 717240-6195 717240-6573