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HomeMy WebLinkAbout06-7194David F. O'Leary, Esquire Attorney I.D. No. 34946 David C. Sirolly, Esquire Attorney I.D. No. 200646 BROADS & SINON LLP One South Market Sq., 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717)233-5731 Attorneys for Plaintiff THE HARRISBURG ACADEMY, IN THE COURT OF COMMON PLEAS Plaintiff, :CUMBERLAND COUNTY, PENNSYLVANIA v. GUS KOKOS and :Docket No. ~ - ~'~ Qy _ t v a -~ CONNIE KOKOS, ~~~ Defendants. NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this 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 maybe 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 HIItING 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 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 631153.1 David F. O'Leary, Esquire Attorney I.D. No. 34946 David C. Sirolly, Esquire Attorney I.D. No. 200646 BROADS & SINON LLP One South Market Sq., 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717)233-5731 Attorneys for Plaintiff THE HARRISBURG ACADEMY, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. GUS KOKOS and :Docket No. 0Ca - '1 / 9 } ~ ~ ~ L CONNIE KOKOS, ~~ Defendants. COMPLAINT The Harrisburg Academy (the "Academy"), by its attorneys, Rhoads & Sinon LLP, files this Complaint against Gus and Connie Kokos (collectively hereafter, the "Defendants"). In support of this Complaint, the Academy avers as follows: 1. The Academy is an independent school, which educates students from the pre- school level through twelfth grade and is located at 10 Erford Road, Wormleysburg, Pennsylvania. 2. Gus and Connie Kokos are adult individuals with a last known address of 3 Saratoga Place, Camp Hill, Pennsylvania 17011. 3. This action arises under the laws of the Commonwealth of Pennsylvania and is within the subject matter jurisdiction of this Court. Venue is proper pursuant to Rule 1006(a)(1) of the Pennsylvania Rules of Civil Procedure. Pa. R. Civ. P. 1006(a)(1). 1 COUNTI Breach of Contract (2006-2007 Enrollment Agreement) 4. The Academy incorporates the Paragraphs set forth above as if fully set forth herein. 5. On or about March 10, 2006, Defendants entered into a valid and enforceable enrollment contract with the Academy by which Defendants secured a place for their Son in the seventh grade class at the Academy for the 2006-2007 academic year (hereafter, the "2006-2007 Enrollment Agreement," attached hereto as Exhibit A). 6. In relevant part, the 2006-2007 Enrollment Agreement states as follows: We understand that by signing and returning this Enrollment Agreement we have unconditionally obligated ourselves to pay the full year's tuition and fees ... for the applicable grade, and are reserving a place for the above-listed child for the entire academic year. We understand that the Academv makes important decisions regarding the hiring and retention of teachers and staff and the admission and recruitment of students based on the number of Enrollment Agreements received. We understand that the Academv relies on the promises made in these Enrollment Agreements and expects that these promises will be kept. We understand and agree that except as described in Paragraph 2 below, our obligation for the full year's tuition and fees will not be reduced or excused by our cancellation of this Enrollment Agreement or by the withdrawal of the above-named child from the Academv, dismissal from the Academy, illness, disability, death or any other absence for any cause at any time since we recognize and acknowledge that such cancellation, withdrawal, dismissal or absence will not materially reduce the Academy's costs, or permit the Academy to recoup lost income, and that therefore payment of the full year's tuition and fees is [a] fair and reasonable measure of the damages which the Academy will suffer in such event. We understand the fact that the Academy allows tuition or fees to be paid in installments does not affect our liability for the full year's tuition. If any balance due on the applicable payment plan remains unpaid for thirty (30) days after written demand for payment, the account maybe referred to the Academ ~'s attorneys for collection. All attorneys' fees and collection fees plus interest and costs, shall be added to the outstanding balance. The default rate of interest shall be 12% per annum. 2 [2006-2007 Enrollment Agreement, ¶ 1 (emphasis in original)]. The above-quoted provision is hereafter referred to as the "Damages Provision." 7. Additionally, the 2006-2007 Enrollment Agreement states as follows: Notwithstanding our promise in~aragraph 1 above to pay full tuition and fees for the above-named child upon signin this Agreement we understand and agree that if we provide the business office of the Academv with written notice of our decision to cancel this Enrollment Agreement prior to June 16 2006 the Academv will reduce the amount we owe to the Academy to the sum noted below. Written notice for purposes of this Agreement is any mode of delivery with a signed acknowledgement by the Business Office staff including Certified Mail, Federal Express or personal delivery to the Business Office. Date Written Notice of Cancellation Is Received by Business Office Amount Owed Is Reduced To: Prior to May 15, 2006 $750 (non-refundable deposit will be retained by the Academy) May 15, 2006 -June 15, 2005 $3250 (this amount includes the $750 non-refundable deposit) Full tuition and fees are owed for any cancellation of this Enrollment Agreement or the withdrawal or dismissal of the above-named child that occurs on or after June 16, 2006 as stated in paragraph (1) above. [2006-2007 Enrollment Agreement, ¶ 2 (emphasis in original)). The above-quoted provision is hereafter referred to as the "Cancellation Provision." 8. In further relevant part, the 2006-2007 Enrollment Agreement contains the following provision: We understand and agree that if the above-named child is dismissed from or leaves the Academy for any reason, the full amount of tuition and fees becomes due immediately, and if any payment for tuition or fees owing to the Academy is past due in whole or in part, the Academy reserves the right to remove the child from school, and such action by the Academy shall not affect its rights to full payment of tuition or fees as set forth above. 3 [2006-2007 Enrollment Agreement, ¶ 6]. The above-quoted provision is hereafter referred to as the "Reservation of Rights Provision." 9. For the academic year for 2006-2007, the total amount for tuition and fees for a seventh grade student is $ 13,180.00. [2006-2007 Enrollment Agreement, p. 2]. 10. Upon information and belief, on or before June 15, 2006, Defendants failed to provide the Academy with any notice, no less written notice as contemplated by the Cancellation Provision of the 2006-2007 Enrollment Agreement, that their Son would not be attending the Academy for the 2006-2007 academic year. 11. Upon information and belief, not until on or about August 14, 2006, did Defendants inform the Academy that their Son would be attending a different school for the 2006-2007 academic year. 12. Through the 2006-2007 Enrollment Agreement, Defendants entered into a valid and enforceable contract with the Academy by which the Academy committed to reserve a place for the Defendants' Son in the seventh grade class for the 2006-2007 academic year. 13. Through the Damages Provision, the Cancellation Provision and the Reservation of Rights Provision, among other provisions, within the 2006-2007 Enrollment Agreement, the Defendants became obligated to pay to the Academy the full tuition and fees for the 2006-2007 academic year for their Son if withdrawn from the Academy after June 15, 2006. 14. Upon information and belief, the Defendants withdrew their Son from the Academy after June 15, 2006 having provided no notice of such withdrawal to the Academy until on or about August 14, 2006, only about two weeks before the start of the school year. 4 15. Upon information and belief, despite a demand having been made, the Defendants have not paid the Academy the full tuition and fees for the 2006-2007 academic year for their Son who was withdrawn from the Academy after June 15, 2006, and, as such, the Defendants are in breach of the 2006-2007 Enrollment Agreement. 16. The Academy has been damaged by such breach and is entitled, as a result, to the damages agreed to by the Defendants in the 2006-2007 Enrollment Agreement including the unpaid tuition and fees, all attorneys' fees and collection fees plus interest at 12% per annum and costs, which shall be added to the outstanding balance. WHEREFORE Plaintiff, the Academy, requests that it be awarded damages with respect to Count I in the amount of $12,430.00, constituting the unpaid tuition and fees for the 2006- 2007 academic year for the Defendants' Son, together with interest at 12% per annum beginning from an initial payment due date of August 1, 2006, the Academy's costs and expenses of suit, including attorneys' fees and collection fees, and any other damages that this Court deems appropriate. COUNT II Promissory Estoupel 17. The Academy incorporates the Paragraphs set forth above as if fully set forth herein. 18. The Defendants promised to pay to the Academy the full tuition and fees for their Son for the 2006-2007 academic year for which the Defendants reserved a place for him in the seventh grade at the Academy if, as occurred, the Son was withdrawn from the Academy after June 15, 2006. Additionally, if applicable, the Defendants committed to pay to the Academy interest on any unpaid balances, attorneys' fees and collection fees. 5 19. Upon information and belief, Defendants have failed to honor their promise to pay to the Academy the full tuition and fees for their Son for the 2006-2007 academic year. 20. The Academy substantially performed all of its obligations owed to the Defendants through the respective enrollment agreement by reserving a place in the seventh grade class at the Academy for Defendants' Son for the 2006-2007 academic year and was further prepared to follow through on the Academy's commitment to provide an education to the Son for the 2006-2007 academic year. 21. The Academy reasonably and justifiably relied upon the Defendants' promises to pay for the Academy's services and the Academy was prepared to fully perform. 22. As a direct and proximate cause of the Academy's reliance on the Defendants' promises to pay, the Defendants benefited, at the Academy's expense, by having a place reserved in the seventh grade class at the Academy for their Son for the 2006-2007 academic year. 23. Upon information and belief, after the Son was withdrawn only two weeks before the start of the 2006-2007 academic year, despite reasonable efforts, the Academy was unable to fill the seventh grade class in which the Defendants' Son had reserved a place and, as a result, the Academy lost income in the amount of the full tuition and fees, less a $750 deposit paid by Defendants on or about March 10, 2006, that the Academy was entitled to receive after June 15, 2006, for having held a place in the seventh grade class at the Academy for the Defendants' Son. 24. Injustice has resulted and will continue to result if the Defendants' promises to pay the Academy are not enforced. 6 25. Injustice in this case can only be avoided by enforcing the promises made by Defendants to pay, if the Defendants withdrew their Son after June 15, 2006, to pay the full tuition and fees for the Son for the 2006-2007 academic year. WHEREFORE Plaintiff, the Academy, requests that it be awarded damages in the amount of $12,430.00, constituting the unpaid tuition and fees for the 2006-2007 academic year for the Defendants' Son, together with interest at 12% per annum, the Academy's costs and expenses of suit, including attorneys' fees and collection fees, and any other damages that this Court deems appropriate. Respectfully submitted, BROADS & SINON LLP .~.J p~,~-i~ 1... , , By: David F. O'Leary, Esquire David C. Sirolly, Esquire One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff 7 VERIFICATION David C. Zett, deposes and says, subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities, that he is the Business Manager of the Harrisburg Academy, and that he makes this verification through his authority and that the facts set forth in the foregoing document are true and correct to the best of his knowledge, information and belief. Date David C. Zett EXHIBIT A "2006-2007 Enrollment Agreement" ~. 6' 31>~l~b ^ ~ HARRISBURG ACAbE1VIY ~ ~ S~O l0 Erford Road ~P Wormleysbwg, PA 17043 ` Harrisbwg Academy is pleased to welcome yow family to ow educational community for the 2006-07 academic year. We are happy .; to know that your'child will experience the many benefits of the liberal arts education which Harrisburg Academy offers our student§. Below is the Enrollment Agreement for yow child. Please read it carefully. ..2006.--p7. ENROLLMENT AGREEMENT (1) Harrisburg Academy ("the Academy") having offered enrollment to iiaaai 1Cokoa for the ; academic year 2006-07 as a student in grade 7 , we herewith forward as anon-refundable advance deposit on account of tuition for that academic year in the amount of 57so.oo. We understand that by signing and returning this Enrollment Agreement we have unconditionally obligated ourselves to pay the full year's tuition and foes, as shown on the reverse side of this page, for the applicable grade, and are reserving a place for the above-listed child for the entire academic year. We understand that the Academv makes important decisions re¢ardin¢ the hirin¢ and retention of t~echers and staff and the admission and recruitment of students based on the number of Enrollment Agreemems received. We understand that the Academv relies on the promises made in these Enrollment Agreements and expects that these promises will be kept. We understand and agree that extit es described in para¢ravh 2 below, ow obligation for the full year's tuition and fees will not be redutxd or excused by ow cancellation of-this Errrolhnent A¢rcement or by the withdrawal of the above-named child from the Academv. dismissal from the Academy, illness, disability; death or any other absence for any cause at anv time since we recognize and acknowledge that such cancellation. withdrawal, dismissal or absence will not materially reduce the Academ~+'s costs, or permit the Academy to recoup lost income, and that therefore payment of the full year's tuition acid fees is fair and reasonable measure of the damages which the Academy will suffer in such event. We understand the fact that the Academy allows tuition or fees to be paid in installments does not affect our liability for the full year's tuition: If any balance due on the applicable payment plats remains unpaid for. thirty (30) days after written demand for payment, the account may be referred to the Academy's attorneys for collection. All attorneys' fees and collection fees plus interest and costs, shall be added to the outstanding balance. The default rate of interest shall be 12% per annum. (2) prior to lone 16.2006. the Academv will reduce the amount we owe to the Academv to the sum noted below. Written notice for pnrpoies of tiiia Agreement i$ say mode of tlelivery with a signed acknowledgment by the Business Office staff including Certified Mail, Federal Expre§t or personiil'delivery to the $nsiaess Office. Date Written Notice of Cancellation Is<Rer~ by Business Office Amount Owed Is Reduced To: Prior to May 1 S, 2006 May l S, 2006 -June l5, 2006 $750 (non-refundable deposit will be retained by the Academy) 53250 (this amount includes the 5750 non-refundable deposit) Full tuition and fees are owed for any cancellation o! this Enrollment Agreement or the withdrawal or dismissal of the above-named child that occurs on or after June 16, 2006 as stated in paragraph (1) above. (3) We understand and agree that by signing this Enrollment Agreement for the coming academic year we accept the rules and regulations of the Academy as of this date and such rules and regulations as it may issue from time to time hereafter. (4) We understand and agree that unless otherwise directed in writing by both parents/legal guardians of the above-named child, it is the policy of the Academy to provide equal access to all information concerning the child to those parents or legal guardians who execute this l:nrollrnerit Agreement,. ("Signators„) (S) We understand the Academy will provide mailings and student information to the Signators at the ad9ress(es) provided. The At~einy administrative and teaching staff will make such information available to the Signators. By executing this Agreement, we certify that we, dive parental or legal guardianship rights with respect to the above-named child. We understand that the Academy will not provide such infoiination to any. other individual,, including non-custodial parents or step-parents, unless a written request, accompanied by appropriate and adequatt; ~'riiof iri writing of right-to-access to such information, is provided and signed by the parents legal guardians to the Academy. (6) We understand and agree that if the above-named child is dismissed from or leaves the Academy for any reason, the foil amount of htitlotl and fees becomes dtie immediately, and if any payment for tuition or fees owing to the Academy is past due in whole or in patt, tliiz Ac~del`ny reserves the right to remove the child from school, and such action by the Academy shall not affect its rights to full payment of tuition or fees es sal forth above. The decision of the Head of School to remove or to dismiss the child shall be final and legally binding in all circumstances. (7) We also understand that the Academy makes available to us the Tuition Refund Plan, an insurance program described in the er3c~b5ed leaflet. We understand and agree that if we have not paid the annual tuition and fees in full, by August 25, 2006, w~ must participate in the Tiiitibn Refund Plan or must present evidence satisfactory to the Academy that we have secured comparable coverage elsewhere. Participation is elective for those who pay the total annual tuition and foes by August 25, 2006. Acne-time annual premium for the Tuition Refund Plan will be billed when tuition is billed. This program will give us an opportunity to insure a portion of tuition, annual charges or fees (prepaid and due) in the evisiil of absence or separation of the above-named child, according to the terms of the policy. Additionally, we authorize and direct the Academy to lrollect any claim or payment to which we are entitled under the Tuition Refund Plan and to credit our account, paying any excess to us. We hereby appoint the Academy's Business Manager as our attorney-in-fact to sign any documents to collect any such claim or payment. Page 1 of 2 ,, Method of Tuition and Fee Payment (Check A or B in the appropriate space below) As part of this Agreement we are indicating below the tuition and fees payment method that we would like to use: A. Payment in full by August 25, 2006. (The coupon monthly payment plan must be used after this date.) We Want Tuition Refund Insurance: YES NO B. Coupon Monthly Payment Plan -Eleven (11) or less, monthly payments commencing August 1, 2006, due tliecal the first day of each month. (There is a service charge for using this plan.) Tuition Refund Insurance is tedilii~. We understand that by indicating payment Plan B above, that we authorize the Academy to conduct a credit checiC before agreeing to the payment terms requested. We agree to pay a X25.00 fee for any check returned to the Academy for non-payment. A $750.00... enrollment deposit for the 2006-07 school year must be included with this s~~daz8 Agreement for the Asreement to be valid. We understand and agree that this Enrollment Agreement is a binding legal contract We are signng this Enrollment Agreement with the mtentlon of being legally bound. Date '3 - ~ (~ 20 0 6 Name of Parent or Guardian Signature of Parent or Guardi~rr Date '?, ' [ ~ 20~[z _ 6'-1`~ K Kd S off _ R ,~~ Name of Parent or Guardian Signature of Parent or Guardian Date 20 RETURN TWO SIGNED COPIES TO ABOVE ADDRESS Schedule of Tuition and Fees Junior Kindergarten, Kindergarten, snd Grades l through I2 2006-07 Academic Year GRADE LEVEL Jr K K 1-4 5-8 g_I~* TUITION 8c FEES S 10,310 S 11,365 S 11,955 S , 13,180 S 13,590 TUITION REFUND INSURANCE . (opuona~'if paying in full; required if paying monthly) $ 186 S 205 ~ 215 $ 237 TOTAL S 10,496 ~ 11,570 S 12,170 ~ 13,417 S 13,835 PAYMENT PLAN SERVICE CHARGE uit~cd if in monthl ~ 422 S 469 S 495 S 548 S 565 Monthly payments will be calculated according to when payments start, financial aid received, deposit provided, and other factors. Monthly payments are to be made the first business day of each month, August 1, 2006 through June 1, 2007. Hours: Full Day: 8:00 A.M. to 3:00 P.M. Page 2 of 2 (~ V 1 ~ ~. ;'~ d ~~ c`") C_ ra _o c°~ F`? t...? L~ -rt Y rr~ ~' ~, l~~ ~~ ~: `. _ 1-n `A -< ,, David F. O'Leary, Esquire Attorney LD. No. 34946 David C. Sirolly, Esquire Attorney I.D. No. 200646 BROADS & SINON LLP One South Market Sq., 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717)233-5731 Attorneys for Plaintiff THE HARRISBURG ACADEMY, Plaintiff, v. GUS KOKOS and CONNIE KOKOS, Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Docket No. 2006-07194 PRAECIPE FOR DISCONTINUANCE TO THE PROTHONOTARY: Pursuant to Rule 229 of the Pennsylvania Rules of Civil Procedure, Plaintiff, the Harrisburg Academy, by and through its attorneys, Rhoads & Sinon LLP, respectfully requests that the docket in this matter be marked settled, discontinued and ended. Respectfully submitted, BROADS & SINON LLP t B ~Y By: David F. O'Leary, Esquire David C. Sirolly, Esquire One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff Dated: February 20, 2007 640869.1 CERTIFICATE OF SERVICE I hereby certify that on February 20, 2007, a true and correct copy of the foregoing document was served by means of United States mail, first class, postage prepaid, upon the following: Gus and Connie Kokos 3 Saratoga Place Camp Hill, Pennsylvania 17011 Steve C. Nicholas, Esquire Nicholas Law Offices, PC Northwood Office Center 2215 Forest Hills Drive, Suite 37 Harrisburg, PA 17112-1099 Kelly G yer c .~ ~ a . `' :z c ,i: ~ -~ ~ ~ --r i ; tTi C~7 ~ ~ T'" ' tT a N C, FV <".~ tJ ~,.- ~. T_ -ter ,~. {_. e°t't J =_} W tf3 SHERIFF'S RETURN - REGULAR CASE NO: 2006-07194 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HARRISBURG ACADEMY THE VS KOKOS GUS ET AL GERALD WORTHINGTON Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE KOKOS GUS DEFENDANT was served upon the at 1835:00 HOURS, on the 3rd day of January 2007 at 3 SARATOGA PLACE CAMP HILL, PA 17011 by handing to CONNIE KOKOS, WIFE a true and attested copy of COMPLAINT & NOTICE______ together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: So Answers: Docketing 18.00 Service 12.32 ~,~!j7 Postage .39 ;~~'_"o-~r~~ ~~.,.:«~-..~' Surcharge 10.00 R. Thomas Kline ~I~,yJo7 (~.,, .00 ~/ 40.71 01/05/2007 RHOADS & SINON Sworn and Subscibed to By: before me this day Depu y Sh iff of A.D. SHERIFF'S RETURN - REGULAR ., ,. CASE NO: 2006-07194 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HARRISBURG ACADEMY THE VS KOKOS GUS ET AL GERALD WORTHINGTON Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon r7/"1 il/1f'~ rr1ATATT ti, the DEFENDANT at 1835:00 HOURS, on the 3rd day of January 2007 at 3 SARATOGA PLACE CAMP HILL, PA 17011 by handing to CONNIE KOKOS a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 ~)a ~ ~o'- ~ 00 16.0 0 Sworn and Subscibed to before me this day of , So Answers: :~~~~ R. Thomas Kline 01/05/2007 RHOADS & SINON By: Deputy Sh iff A.D.