HomeMy WebLinkAbout02-3979
DAVID L. ALLYN, M.D.,
Defendant
DONALD L. DEMUTH ) IN THE COURT OF COMMON PLEAS
PROFESSIONAL MANAGEMENT) CUMBERLAND COUNTY, PENNSYLVANIA
CONSULTANTS, )
Plaintiff )
)
)
) NO. 0.2.. -.391(
)
v.
Ol'(.)~l~~
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
with the court your defenses or objections to the claims set forth against you. You are
warned that if you fail to do so the case may proceed without you and a judgment may be
entered against you by the court without further notice for any money claimed in the
complaint or for any other claim or relief requested by the plaintiff. You may lose money
or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE
THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL
HELP.
Court Administrator
Cumberland County Courthouse, Fourth Floor
Carlisle, P A 17013
(717) 240-6200
DONALD 1. DeMUTH
PROFESSIONAL MANAGEMENT
CONSULTANTS,
Plaintiff
vs.
)
)
)
)
)
)
)
)
)
)
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
DAVID 1. ALLYN, M.D.,
Defendant
NO. 0:<-
C2~u~l/~
COMPLAINT
AND NOW comes the above-named Plaintiff, by its attorney, William R.
Kaufman, and makes the following Complaint in this matter:
1. The Plaintiff is Donald 1. DeMuth Professional Management Consultants, a
partnership organized and conducting business under the laws of the Commonwealth of
Pennsylvania with its principal offices at Suite 106, 207 House Avenue in Camp Hill,
Pennsylvania, 17011.
2. The Defendant is David 1. Allyn, MD., a physician licensed to practice
medicine under the laws of the State of Florida with principal offices for the conduct of his
business at 349 North U.S. Highway 27, Clermont, Florida, 34711.
3 . Venue in this court is proper in that the causes of action plead in this Complaint
arose in Cumberland County, and the Plaintiff regularly conducts business in Cumberland
County.
4. Plaintiff, at all times relevant to this action, was engaged in the business of
providing professional management advice and services to medical, dental, and related
professionals.
Page I of 5
5. At all times relevant to this action, the Defendant was a physician, involved in
the practice of medicine.
6. In early 1996, Defendant was engaged in negotiations with Associates in
Dermatology, P.A., ("Associates in Dermatology") regarding Defendant's practicing
medicine as an employee of Associates in Dermatology's medical practice, with the intent
of the parties that Defendant ultimately become a co-owner of said practice at a later date.
7. In January of 1996, Defendant contacted Plaintiff and asked Plaintiff to provide
professional services, consultations, and advice to Defendant with regard to its negotiations
with Associates in Dermatology. That communication was directed to Plaintiff at its place
of business in Cumberland County, Pennsylvania and, during that communication,
Defendant agreed to compensate Plaintiff for its professional services at its normal rates of
payment for such services.
8. During the telephone discussion between Plaintiff and Defendant, Plaintiff
accepted Defendant's proposal and agreed to provide the services requested by Defendant
in exchange for payment pursuant to Plaintiffs normal rates of payment, as proposed by
Defendant.
9. In late 1998, Defendant became involved in litigation against Associates of
Dermatology, and asked Plaintiff to continue providing professional consulting advice and
other professional services to the Defendant with regard to the litigation, in exchange for
payment pursuant to Plaintiffs normal rates of payment.
Page 2 of 5
10. Defendant accepted Defendant's proposal and agreed to continue providing
the services in exchange for payment pursuant to Plaintiff s normal rates of payment for
such services.
11. Between April of 1996 and April of 1999, at the request of Defendant, Plaintiff
provided professional consulting, advice, and other professional services to Defendant with
regard to the Associates in Dermatology matters and negotiations. The professional
services, consultations, and advice provided by Plaintiff to Defendant, included, but were
not limited to, the following:
A. Plaintiff reviewed various proposed employment contracts and proposals
regarding the terms and conditions of co-ownership in Associates in Dermatology,
and other related entities, from Associates in Dermatology to Defendant and from
Defendant to Associates in Dermatology, including various items of
correspondence between representatives of and attorneys for Associates in
Dermatology; and
B. Plaintiff held extensive communications with Defendant regarding the
various proposals and the Defendant's response to those proposals; and
C. Plaintiff communicated with Associates in Dermatology and its
representatives regarding the proposed contracts and the details of the same; and
D. Plaintiff held extensive communications with Defendant and Defendant's
counsel regarding the various aspects of the litigation, including the history of
negotiations, and correspondence exchanged between the parties; and
Page 3 of5
E. Plaintiff researched various legal, accounting, management, and other
professional issues and rendered explanations and advice regarding those matters to
Defendant.
12. Attached hereto and marked Exhibits "A-I" and "A-2" are the billings for
work done by Plaintiff for Defendant pursuant to the agreement between the parties and the
time spent on those tasks.
13. As agreed between the parties, Plaintiff charged Defendant for its professional
services its normal fees and charges for such services, as those fees and charges were in
effect at the time the work was done. Plaintiff charged Defendant $14,228.75 between
June 1996 and December 1997, and such charges were paid in full by Defendant.
However, subsequent charges for professional services rendered in this matter are unpaid,
with the exception of reimbursement by Defendant of Plaintiff s travel expenses for a
March 5,1999 meeting with Plaintiff in the amount of$991.10. As a result, the total
amount due to Plaintifffor its services to Defendant is $20,530.00 as of July 1999.
14. Defendant, although accepting the benefit of all of Plaintiff s work and
retaining the same, has failed and refused to pay Plaintiff for all of its services performed
in this matter.
15. Defendant, by its conduct, is indebted to Plaintiff in the amount of$20,530.00
from and after 6 July 1999 and for interest after that date.
Page 4 of 5
WHEREFORE, Plaintiff demands judgment against Defendant in the amount of
$20,530.00 as of 6 July 1999, plus interest at the legal rate thereafter, plus costs of suit.
William R. Kaufman
Attorney for Plaintiff
Supreme Court ID #78627
207 House Avenue - Suite 106
Camp Hill, PA 17011
(717) 763-9002
--
Page 5 of 5
COMMONWEALTH OF PENNSYLVANIA )
) SS.:
COUNTY OF CUMBERLAND )
Donald L. DeMuth, being duly sworn according to law, deposes and says that the
facts set forth in the foregoing document are true and correct to the best of his knowledge,
information, and belief.
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Donald L. DeMu
Sworn to and subscribed
before me this I q
of QU(r~
day
,2002
V o:tk't"' ~ . - 1lKf\<SY\
Notary Pub 'c
Kathryn L ~Iarial Seal '.. .. -
{Jast PennsborO J:::,on, Notary Public
y CommisSion Ecp~~:berland County
4!ember. Pennsylvan Nov. 17, 2003
la ASSOCiation of NotaHes
Exhibit "A-I"
DONALD L. DEMUTH PROFESSIONAL MANAGEMENT CONSULTANTS
SUITE 106 - PROFESSIONAL CENTER WEST
207 HOUSE AVENUE
CAMP HILL/HARRISBURG, PA 17011-2305
(717) 763-4580
FAX: (717) 730-9447
DONALD L. DEMUTH, C.H.B.C., M.B.A., C.P.A.lP.F.S.I A.B.V.
WILLIAM R. KAUFMAN, C.P.A.. J.D.
January 6, 1999
David Allyn, M.D.
13883 Osprey Links Road
Apartment #133
Orlando, FL 32837
Fee for consultation regarding Associates in Dermatology
and related entities employment, buy-in, and agreement
termination (95\1. hours):
$ 17.620
David, feel free to pay this as you are more comfortable doing so.
E::hibit "A-2"
DONALD L. DEMUTH PROFESSIONAL MANAGEMENT CONSULTANTS
SUITE 106 - PROFESSIONAL CENTER WEST
207 HOUSE AVENUE
CAMP HILL/HARRISBURG, PA 17011-2!05
(717) 763-4580
FAX: (717) 730-9447
DONALD L. DEMUTH, C.B.B.C., M.B.A., C.P.A./P,F.S./ A.B.V.
WILLIAM R. KAUFMAN, C.P.A., J.D.
July 6, 1999
David 1. Allyn, M.D.
Aesthetic Dermatology
349 N. U.S. Highway 27
Clermont, FL 34711
Fee for consultation regarding Associates in Dermatology
law suit including March 5th meeting in Orlando (ISo/. hours):
$ 2,910
Previously billed balance:
17.620
$20.530
David,
Give me a call so we can discuss the outcome of the lawsuit. I hope your practice
is going well.
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DONALD L. DEMUTH ) IN THE COURT OF COMMON PLEAS
PROFESSIONAL MANAGEMENT) CUMBERLAND COUNTY, PENNSYLVANIA
CONSULTANTS, )
)
)
)
) NO. 02-3979
)
Plaintiff
v.
DAVID L. ALLYN, M.D.,
Defendant
CERTIFICATION OF SERVICE
This is to certify that in this case, complete copies of all papers contained in the
Complaint have been served upon the following persons, by the following mean~, and on
the date stated: .
Name:
Means of Service: Date of Service:
Glenn Allyn, Esq.
Via Certified Mail, Return August 23, 2002
Receipt Requested
David Allyn, M.D.
Via Certified Mail, Return August 23, 2002
Receipt Requested
Address
I.D. Number 78627
Telephone (717) 763-9002
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DONALD L. DEMUTH ) IN THE COURT OF COMMON PLEAS
PROFESSIONAL MANAGEMENT) CUMBERLAND COUNTY, PENNSYLVANIA
CONSULTANTS, )
)
)
)
)
)
Plaintiff
CNIL ACTION - LAW
v.
DAVID L. ALLYN, M.D.,
Defendant
NO.:02-3979 Civil Term
AFFIRMATION OF SERVICE
I, Glenn B. Allyn, Esquire, hereby affirms that I
caused to be served on September 20, 2002, a copy of pro ~
defendant's Notice to plead, with preliminary objections to
jurisdiction, by depositing same with Airborne Express, prepaid,
over night courier to the individual below:
Donald L. DeMuth, Professional Management Consultants
C/O William R. Kaufman, Esquire
207 Horse Avenue
Suite 106
Camp Hill, PA 17011
~
Glenn B. Allyn, Esquire
ALLYN. HAUSNER & MONTANILE, LLP.
THE LAW BUILDING
210 ROUTE 303
VALLEY COTTAGE, NEW YORK 10989
(845) 268-5900
Date:
September 20, 2002
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09/1.8/2002 09: 20 FAX
ALLYN & HAUSNER.LLP
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DONALD L. DEMUTH ) IN THE COURT OF COMMON PLEAS
PROFESSIONAL MANAGEMENT) CUMBERLAND COUNTY, PENNSYL V ANlA
CONSULTANTS, )
Plaintiff )
v. ) CIVIL ACTION - LAW
)
DAVID L. ALLYN, M.D., ) NO.:02-3979 Civil Tenn
Defendant )
NOTICE TO PLEAD
TO: Donald L. DeMuth,
Professional Management Consultants (Plaintiff)
By: its attorney
William R. Kaufman
207 Horse A venue
Suite 106
Camp Hill, PA 17011
(717) 763-9002
You are hereby notified to file a written response to the enclosed PRELllv1INARY
OBJECTION RULE 1028 (a) (1), LACK OF JURISDICTION within twenty (20) days from
service hereof or a judgment may be entered against you.
Glenn B. Allyn
Attorney for Defendant
Supreme Court ill #78627
Law Offices of Glenn B. Allyn
The Law Building ,
210 Route 303
Valley Cottage, New York 10989
(845) 268-5900
Permsylvania Office:
Brown Mayhart Martin & Schindler
112 West Courthouse Alley
West Chester, PA 19380
Attn: 0' Hampton Brown
III 002
DAVID L. ALLYN, M.D.,
Defendant
DONALD L. DEMUTH ) IN THE COURT OF COMMON PLEAS
PROFESSIONAL MANAGEMENT) CUMBERLAND COUNTY, PENNSYLVANIA
CONSULTANTS, )
)
)
)
)
)
Plaintiff
v.
CIVIL ACTION - LAW
NO.:02-3979 Civil Term
PRELIMINARY OBJECTION RULE 1028 (a) (I)
LACK OF JURISDICTION
AND NOW comes defendant and provides the following preliminary objection in this
matter:
PRELIMINARY STATEMENT
This is an action which seeks monetary damages for a breach of an oral contract by a
Pennsylvania/plaintiff entity against an individual/defendant who resides in the state of Florida,
which defendant has not set foot in Pennsylvania, nor conducts business of any way shape or
form in Pennsylvania. The only basis upon which the plaintiff can evoke jurisdiction of a
Commonwealth court here is under 42 Pa. C.S.A. ~5322, the "long arm statute."
ALLEGATIONSIF ACTS
1. The defendant never met with plaintiff in Pennsylvania
2. The defendant does not conduct business in Pennsylvania.
3. There was no written contract signed, delivered or negotiated in Pennsylvania.
4. There was no written memorialization of any alleged oral contract. Nor in such alleged
oral contract reference made to Pennsylvania law controlling same, and/or jurisdiction being
placed in Pennsylvania.
5. No issues concerning Pennsylvania law, and/or contacts with Pennsylvania were
contemplated in the alleged oral agreement.
6. All services under the alleged oral contract were to be performed in Florida, and/or all
negotiations thereunder conducted with Florida residents, or business's.
2
7. Plaintiff conducted services regarding a Florida employment agreement, with Florida
companies and/or other entities and Florida residents -- in Florida, with no Pennsylvania
company and/or residents subject of such employment agreement.
8. The pleading in the complaint proves that at least 14% of all time expended by
plaintiff for his alleged services were conducted in Florida. See attachments to the complaint,
exhibit A-I and A-2.
9. All negotiations alleged to have been conducted by plaintiff took place in Florida, with
Florida residents or professionals.
10. Plaintiff is not a licensed Florida or Pennsylvania attorney.
11. Plaintiff admits he researched legal issues.
12. With respect to defendants contacts in Pennsylvania, plaintiff alleges only that
defendant made two calls to him, from Florida to Pennsylvania over a two year period. One call
in January 1996, the other in late 1998. No specific time, date or length of call is provided by
plaintiff.
13. Associates in Dermatology, P .A., is not an agent, employee or servant of defendant.
14. Agents servants and employees of Associates in Dermatology, P.A., are not agents,
employees or servants of defendants.
15. Any correspondence by Associates in Dermatology, P .A., and/or its agents,
employees and servants to Pennsylvania and with plaintiff, is not a communication by defendant
to Pennsylvania.
16. The end result of any services conducted by plaintiff for defendant contemplated
under the alleged oral contract i.e, but not inclusive of, an employment agreement, or other
contract, would be in Florida, not Pennsylvania.
17. Any "benefit" of all work allegedly performed by defendant as set forth in paragraph
14. of the complaint is situated in Florida, not Pennsylvania.
18. There has been no services by plaintiff for defendant since July 6,1999.
3
MEMORANDUM OF LAW
IN SUPPORT OF PRELIMINARY OBJECTIONS
i. Pennsylvania's long ann statute provides for jurisdiction for persons outside of the
Commonwealth. See 42 Pa. C.S.A. S5322.
ii. In order for a "Pennsylvania court to exercise jurisdiction over a non resident
defendant: (1) the Commonwealths's long ann statute. . . must authorize jurisdiction, and (2)
the exercise of jurisdiction must satisfy constitutional principles of due process." See Rain's
Deli Corporation v. C&L Foods, Inc., 2002 WL 31053837.
iii. Likewise "for a court to exercise specific jurisdiction: (1) the non-resident defendant
must have significant minimum contacts with the forum state, and (2) the assertion of in
personam jurisdiction must comport with fair play and substantial justice. Id. (Emphasis in
original).
iv. "The minimum contacts requirement is not satisfied by contacts 'that are
'random,' 'fortuitous' or 'attenuated" or by 'unilateral activity in the forum by others who claim
some relationship with the defendant.'" Id.
v. Here, the plaintiff has failed to provide in its pleading, contacts and/or acts sufficient
to have this Court exercise specific personal jurisdiction over the individual defendant, a Florida
resident.
vi. The plaintiff avers that defendant contacted plaintiff in January 1996 and asked
plaintiff to provide services. Such communication was made from Florida to plaintiff in
Pennsylvania. As a result of this one communication, plaintiff avers that it would provide
services to defendant at plaintiffs "normal rates of payment." See paragraph 7 ofplaintiffs
complaint.
vii. Plaintiff further avers that in late 1998, defendant once again contacted plaintiff by
phone, from Florida to Pennsylvania, and during such call asked plaintiff to continue to provide
services at plaintiffs "normal rates of payment." See paragraph 9 ofplaintiffs complaint.
viii. The substance ofplaintiffs alleged services for defendant is set forth in paragraph
11 of the complaint. Allegation B. through D., set forth services which plaintiff conducted, but
which were by way of communications to Florida. None of these services appear from the
pleading to have been conducted in Pennsylvania.
ix. The services alleged in paragraph 11, A., were allegedly documents reviewed by
plaintiff in Pennsylvania, but which had no connection to Pennsylvania, but instead concerned
employment agreements in Florida, and ones which were governed by Florida law.
4
x. Similarly, the allegations made in paragraph 11, E., concern research, etc concerning
Florida employment agreements, Florida law, and accounting, all of which did not, nor do not
concern the laws of Pennsylvania.
xi. There was no formal contract ever signed, negotiated, sent to Pennsylvania or signed
in Pennsylvania. Instead there was an alleged agreement entered into with defendant situated in
Florida whereby plaintiff would conduct services at its normal rates. No such rates were ever set
forth in a writing, nor memorialized by any other correspondence.
xii. Authority supports the proposition that the "mere existence of agreement with an out
-of-state party does not automatically establish personal jurisdiction over that party." See Aircraft
Guar. Corp. v. Strato-Lift, Inc., 974 F. Supp 468 (E.D.Pa. 1997). See also Violanti v. Emery
Worldwide A-CF Co., 847 F. Supp. (M.D.Pa. 1994)(Negotiating continued employment with age
discrimination plaintiff was not minimum contact needed to establish personal jurisdiction);
Freedom Forge Corp. v. Jersey Forging Works, Inc., 549 F. Supp. (M.D. Pa. 1982)(Breach of
contract action, no personal jurisdiction over non resident even though non resident sent purchase
orders into Pennsylvania); Bucks County Playhouse v. Bradshaw, 577 F. Supp. (E.D. Pa.
1983)(breach of oral contract, non resident did not conduct business in Pennsylvania, cause of
action did not arise from activities within Pennsylvania).
xiii. Here, the plaintiff took at least one trip to Orlando Florida to conduct services for
defendant regarding a pending Florida lawsuit, of which consisted of 153/4 hours. See exhibit
A-2 annexed to the complaint.
xiv. With respect to the other 95 1/4 hours of alleged services, See exhibit A-I annexed
to the complaint, the Court will take notice of the fact that the invoice does no specifically
identify what services were conducted and amount oftime expended for a specific activity. Nor
what day, time and place that such services were conducted, and/or to whom communications
were made.
xv. The complaint is devoid of any reference to services and/or work conducted by
plaintiff in Pennsylvania and/or contact by defendant to Pennsylvania except for two alleged calls
over a two year period, to wit the January 1996 and late 1998 calls, were plaintiff was situated in
Pennsylvania, and defendant in Florida during these calls.
xvi. Fundamental fairness and fair play requires that this Court dismiss plaintiff s
complaint for lack of personal jurisdiction over the defendant. As the plaintiff has failed to plead
any minimum contacts and/or acts sufficient in this action to confer personal jurisdiction over the
defendant, a Florida resident, in Pennsylvania. Additionally, a Florida action can be commenced
at the end of this action outside of any counter claim here, i.e. professional malpractice, or the
unlicenced practice of law in Florida, thus judicial economy demands that one court, a Florida
court hear this matter and decide all issues.
5
xvii, Likewise, plaintiff is not precluded from litigating his claim, as there is jurisdiction
over defendant in Florida.
xviii. Moreover, a Florida court is better suited to determine work allegedly done
regarding a Florida employment agreement.
xix. Another consideration this Court should note is that defendant will assert a counter
claim against plaintiff if plaintiff's oral contract is accepted, and likewise that plaintiff is
somehow entitled to compensation. Said counter claim will allege that if plaintiff indeed did
furnish services as alleged, then plaintiff failed to provide services of that quality reasonably
expected of an individual negotiating a Florida employment agreement, and that any services
provided were in fact defective. Moreover, that as plaintiff alleges, he gave legal advice to
defendant, without being a licensed attorney in Florida, and/or Pennsylvania.
xx. Bain 's Deli Corporation v. C&L Foods, Inc., 2002 WL 31053837 is a case directly
on point with the issue in this matter. There the court found no minimum contacts and personal
jurisdiction to exist against a Florida company whose contacts with Pennsylvania were greater
then any ofthose that could be ascertained by the Court here.
xxi. The Court should be able to decide this application by the evidence produced by the
complaint, the instant objection to jurisdiction, and any responsive pleading submitted as
requested by the accompanying notice to plead.
xxii. However, should this Court find that there is insufficient evidence to decide this
application, then under the authority of Delaware Valley Underwriting Agency v. Williams &
Sapp, Inc. 359 Pa. Super. 368 (September 10, 1986), the defendant respectfully requests that the
Court on its own application take evidence through interrogatories, depositions, plenary hearing or
other evidentiary hearing to decide the instant application.
WHEREFORE, defendant demands judgment dismissing plaintiff's complaint, plus costs of
suit, and any and all other relief this Court deems just.
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6
._~_.._--'"_._-_._---~_."-"._._---
Glenn B. Allyn
Attorney for Defendant
Supreme Court ill #78627
Law Offices of Glenn B. Allyn
The Law Building
210 Route 303
Valley Cottage, New York 10989
(845) 268-5900
Pennsylvania Office:
Brown Mayhart Martin & Schindler
112 West Courthouse Alley
West Chester, PA 19380
Attn: 0' Hampton Brown
7
09/1~/2002 10:49 FAX
ALLYN & HAUSNER.LLP
~009
5TMC ~f ~Il (//#
COUNTY OF ~O-k e
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David L. Allyn, M.D., being duly sworn according to law, deposes and says that the facts set forth
in the foregoing document are tme and correct to the best of his knowledge, information. and
belief.
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Sworn to and subscribed
before me this ?'/)day
of September, 2002
~",'l~"~.,..
l~r..."if%, Ivane" G. Montague
i*t't!i.':~ MY COMMISSION' CC185m EXJIIQES
~'6tf January 24, 2003
if.1/f..ll\" BONDED THRU TIlOY FAIN INSUIlANC:i INC
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DAVID L. ALL YN, M.D.,
Defendant
DONALD L. DEMUTH ) IN THE COURT OF COMMON PLEAS
PROFESSIONAL MANAGEMENT) CUMBERLAND COUNTY, PENNSYL VANIA
CONSULTANTS, )
)
)
)
) NO.: 02-3979 Civil Term
)
Plaintiff
v.
ANSWER
AND NOW comes the above-named Plaintiff, by its attorney, William R.
Kaufman, hereby submits the following Answer, whereof the following is a statement:
1. Denied as stated. Although it is admitted that Plaintiff never met with
Defendant in Pennsylvania, of the 190.33 hours of consulting services that Plaintiff
performed for Defendant between January 1996 and July 1999, all but 15.75 hours,
8.25% of total time spent, was performed by Plaintiff at his place of business in
Pennsylvania. Plaintiff traveled to Florida in March 1999, more than three years after
Plaintiff began performing services for Defendant, at the request of the Defendant, to
brief Defendant's new attorney, the third such attorney retained by Defendant for matters
related to Associated in Dermatology, P.A.
2. Denied as stated. It is only admitted the Defendant does not practice medicine
in Pennsylvania. It is denied that Defendant, through his course of dealing with Plaintiff,
has not availed himself of privilege of conducting activities in Pennsylvania.
3. Admitted.
4. Denied as stated. Although it is admitted that there was no written
memorialization of an oral contract, the parties formed an actual, not an alleged, oral
contract through a prior course of dealing. Plaintiff first performed services for
Defendant from January through June 1996. Plaintiff billed Defendant on June 27, 1996
at Plaintiff's normal rates of payment. Defendant paid this invoice in full, with the last
payment made in February 1997. See attached invoice (Exhibit A-I), and a copy of
Defendant's letter to Plaintiff thanking Plaintiff for being permitted to pay over time
(Exhibit A-2). Plaintiff continued to perform services at the request of Defendant under
this oral contract throughout 1997. Plaintiff billed Defendant for such services at
Plaintiffs normal rates of payment, on December 15,1997 (Exhibit B). Defendant paid
for such services in January 1998. These prior billings and related payments are
referenced in paragraph 13 of the Complaint. Plaintiff continued to perform services at
the request of Defendant under the terms of this oral contract throughout 1998, through
July 1999, and billed the Defendant at Plaintiffs normal rate of payment in July 1999, as
he had done previously. It is Defendant's unwillingness to pay for the amounts billed in
July 1999 that deviates from the prior course of dealing between the parties and breaches
the oral contract between the parties. Further, the oral contract was silent as to
controlling state law and/or jurisdiction. However, the Defendant utilized the services of
the Plaintiff, of which 91.75% of such services were performed in Pennsylvania by
Plaintiff, and did contemplate, or should have contemplated, that he was making contacts
and conducting activities in Pennsylvania.
5. Denied as stated. Plaintiff contemplated that as a citizen of Pennsylvania, and
conducting business from his principal place of business within Pennsylvania, he would
be protected by its laws. Further, Defendant utilized the services of the Plaintiff, of
which 91.75% of such services were performed in Pennsylvania by Plaintiff, and did
contemplate, or should have contemplated, that he was making contacts and conducting
activities in Pennsylvania.
6. Denied as stated. Although it is admitted that all negotiations were conducted
with Florida residents or businesses, Plaintiff performed 91.75% of his services while he
was located in his principal place of business in Pennsylvania, and only traveled to
Florida at the request of Defendant, after three years of performing services for
Defendant, to brief Defendant's new attorney.
7. Denied as stated. Although it is admitted that Plaintiff conducted services
relating to a Florida employment agreement, Plaintiff performed 91.75% of his services
while located at his principal place of business in Pennsylvania, and only traveled to
Florida at the request of Defendant, after three years of performing services for
Defendant, to brief Defendant's new attorney.
8. Denied as stated. As stated in 1. above, Plaintiff performed 91.75% of his
services while located at his principal place of business in Pennsylvania, and only
traveled to Florida at the request of Defendant, after three years of performing services
for Defendant, to brief Defendant' s new attorney.
9. Denied as stated. Although it is admitted that all negotiations were conducted
with Florida residents or businesses, Plaintiff performed 91.75% of his services while he
was located in his principal place of business in Pennsylvania, and only traveled to
Florida at the request of Defendant, after three years of performing services for
Defendant, to brief Defendant's new attorney.
10. and 11. Denied as stated. Although it is admitted that Plaintiff is not a
licensed Florida or Pennsylvania attorney, Plaintiff consulted extensively with Defendant,
and Defendant's counsel, regarding the financial and income tax implications of
Defendant's contemplated transactions with Associates in Dermatology, P.A. Also,
Defendant's counsel asked Plaintiff to review numerous proposed legal documents
between Defendant and Associates in Dermatology, P.A., and Plaintiff provided his input
to Defendant's counsel. Further, Defendant asked Plaintiff to comment on issues of
Florida law, and Plaintiff did so, with the proviso that Defendant also review the matter
with counsel.
12. Denied as stated. The first telephone call merely marks the beginning of the
relationship between the parties, and initiated a course of dealing, discussed extensively
in paragraph 4, above, that lasted over three years. The second telephone call merely
marks when the nature of the consulting services changed from those assisting with the
establishment of a long-term relationship between Defendant and Associates in
Dermatology, P.A., to those of providing litigation support for Defendant, in legal action
against Associates in Dermatology, P.A. It is denied that Plaintiff had only two
telephone conversations with Defendant.
13. Admitted.
14. Admitted.
15. Denied as stated. Correspondence was provided to Pennsylvania and to
Plaintiff, by Associates in Dermatology, P.A., and such correspondence was provided at
the request of either Defendant or Plaintiff, or both, as a part of, and as a direct result of,
the consulting services Plaintiff performed for Defendant.
16. and 17. Denied as stated. It is admitted that the end result of the services
performed by Plaintiff, and the benefit received by Defendant, is situated in Florida.
However, the means of producing said end result and benefit by Plaintiff occurred
substantially (91.75% of total time spent) occurred in Pennsylvania.
18. Admitted.
Respectfully submitted,
WILLIAM R. KAUFMAN
By:
207 House Avenue, Suite 106
Camp Hill, PA 17011
(717) 763-9002
EXHIBIT A-I
DONALD L. DEMUTH PROFESSIONAL MANAGEMENT CONSULTANTS
SUITE 106 - PROFESSIONAL CENTER WEST
207 HOUSE AVENUE
CAMP HILL/HARRISBURG, PA 17011.2305
(717) 7611-4580
_ FAX: (717) 7110-9447
DONALD L. DEMUTH, C.H.B.C., M.B.A.. C.P.A.lP.F.S.lA.B.V.
WILUAM R. KAUFMAN. C.P.A., J.D.
June 27, 1996
David L. Allyn, M.D.
6197 Lakeshire Drive
Dublin, CH 43017
FEE FOR CXNSUL'IM'ICN REXWIDIN3 PRACl'ICE EMPIDYMENI'
AND BUY-IN NEIDI'IATICNS (43-1/4 Hours) : $ 7,568.75
David, I'm glad you were able 'to reach an agreement with Associates
of Denratology in Orlando. It looks like it ought to be a good
professional opportunity for you. I appreciate your referral and look
forward to working with you !lOre in the future.
As 1t.le discussed today, feel free to pay me as you are canfortable
ooing so.
.....
EXHIBIT A-2
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94301lukey LIke Rd. ~
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931 W. Oak SL. Suite 103
10..-, PL 34741
(407) 846-7546
(407) 933-1001 (Pu)
1600 BudiDJCI' Ave.
SL Cloud. PL 34769
(407) 892..042S
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EXHIBIT B
DONALD L. DEMUTH PRoFEssiONAL MANAGEMENT CONSULTANTS
. SUITE 106 - PROFESSIONAL CENTER WEST
207 HOUSE AVENUE
CAMP WLUHARRISBURG, PA 17011-2505.
(717) 7611-4580
. FAX: (717) 7110-9447
DONALD L. DEMUTH, C.H.B.C., M.B.A., C.P.A.lP.F.S.lA.B.V.
WILLIAM R. KAUFMAN, C.P.A., J.D.
December 15,1997
Associates in Dermatology, P.A.
9430 Turkey Lake Road
Suite 212
~lando,FL 32819
AT1N: David L. Allyn, M.D.
Fee for Consultation Regarding Buy~In to Associates
in Dermatology, PA and Related Agreements: $ 6.660
February 19 V. hours August 21 Y2 September 29 Y2
May 30 V. 25 V. October 14 Y2
June 2 Y2 30 % 16 %
5 1 31 1 November 19 Y2
17 V. September 1 Y2 December 2 %
18 . V. 2 2Y2 4 Y2
27 1 3 Y2 5 Y2
July 1 1 4 2V. 7 21/3
13 IV. 8 % 8 V.
14 V. 9 1 9 Y2
17 1% 10 V. 10 Y.
31 % 22 % 11 1
August 6 1% 24 1 12 2/3
19 V. 25 3V. 14 11/"
Total
36.08 hours
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and subnitted in dvpl ; ("ate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter f= the next Argunent Court.
---------------------------------------------------------------------------------------
CAPTION OF CASE
(entire caption must be stated in full)
DONALD L. DeHOTH
PROFESSIONAL HANAGEKENT CONSULTAllTS
(Plaintiff)
vs.
DAVID L. ALLYN. M.D.
(Defendant)
No. 02-3979
Civil TERM:
III 2004
1. State matter to be argued (Le.. plaintiff's lIDtion for new trial. defendant's
daTUrrer to canplaint. etc.): DEFENDANT'S PRELIMINARY OBJECTION. LACK OF
JURISDICTION
2. Identify counsel who will argue case:
(a) f= plaintiff:
Address: WILLIAM R. KAUFMAN. ESQ.
940 CENTURY DRIVE
MECllANICSBURG. PA 17055
(b) f= defendant:
Address: GLENN B. ALLYN, ESQ.
304 PARK AVENUE SOUTH
11TH FJ.QOR
NEW YORK, NY 10010
3. I will notify all parties in writing within bio days that this case has
been listed for argunent.
4. Arg\.Inent Court Date:
NOvmmER 10, 2004
Dated: SEPTEMBER 28, 2004
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DONALD L. DEMUTH
PROFESSIONAL MANAGEMENT:
CONSULTANTS,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
vs.
NO. 02-3979 CIVIL
DAVID L. ALLYN, M.D.,
Defendant
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS
BEFORE BAYLEY AND HESS. J.J.
ORDER
AND NOW, this
7'
day of December, 2004, the court finding that there
were sufficient contacts with the Commonwealth of PennsyJlvania so as to warrant the
assumption of jurisdiction in this case, the preliminary obje<:tions ofthe defendant, citing
lack of jurisdiction, are DENIED.
BY THE COURT,
Ailiam R. Kaufman, Esquire
F or the Plaintiff
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For the Defendant
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DONALD L. DEMUTH ) IN THE COURT OF COMMON PLEAS
PROFESSIONAL MANAGEMENT) CUMBERLAND COUNTY, PENNSYLVANIA
CONSULTANTS, )
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)
)
) NO.: 02-3979 Civil T<erm
)
Plaintiff
v.
DAVID L. ALLYN, M.D.,
Defendant
PETITION FOR APPOINTMENT OF .ARBITRATORS
TO THE HONORABLE, THE JUDGES OF SAID COURT:
William R. Kaufman, counsel for the plantiff in the above action, respectfully represents that:
1_ The above-captioned action is at issue.
2. The claim of the plaintiff in the action is $20,5310. The defendant has not filed a
counterclaim in the action.
The following attorneys are interested in the case as counselor are otherwise disqualified to
sit as arbitrators: Samuel L. Andes, 525 North 12'h Street, Lemoyne, PA 17043.
WHEREFORE, your petitioner prays your Honorable Court to appoint three (3)
arbitrators to whom the case shall be submitted.
RespectfUllYSUbm.~
By: 1dfl
William R. Kaufman, quire
Attorney LD. #78627
940 Century Drive
Mechanicsburg, PA 17055
(717) 766-7702
Attorney for Petitioner
Date: )U,JG' 2.\ ,2005
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DONALD L DEMUTH ) IN THE COURT OF COMMON PLEAS
PROFESSIONAL MANAGEMENT) CUMBERLAND COuNTY, PENNSYLVANIA
CONSULTANTS, )
)
)
)
) NO.: 02-3979 Civil Term
)
Plaintiff
v,
DAVID L ALLYN, M,D"
Defendant
PETITION FOR REMOVAL AND REIPLACEMENT
OF COURT-APPOINTED ARBITRATOR
TO THE HONORABLE, THE JUDGES OF SAID COURT:
William R Kaufman, counsel for the plantiff in the above action, respectfully represents that:
I, A Petition for Appointment of Arbitrators was filed in your Honorable Court
2, An Order of Court was issued on June 29, 2005 appointing three Arbitrators in the
above-captioned action, one of whom was Attorney Wayne Shade,
3, Subsequent to the issuance of said Order, it was discovered that the plaintiff, Donald L
DeMuth, attends the same church as Attorney Shade_
WHEREFORE, your petitioner praised your Honorable Court to remove Attorney Shade and
replace him with another Arbitrator, in order to eliminate any conflict of interest, and/or appearance
thereof
Respectfully submitted,
By: 14 JJ1;
William R Kaufm
Attorney LD. #786
940 Century Drive
Mechanicsburg, P A 17055
(717) 766-7702
Attorney for Petitioner
Date: AuGubl {L,2005
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RECEIVED AUG 19 Z005
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DONALD L. DEMUTH ) IN THE COURT OF COMMON PLEAS
PROFESSIONAL MANAGEMENT) CUMBERLAND COUNTY, PENNSYLVANIA
CONSULTANTS, )
Plaintiff )
~ )
)
DAVID L. ALLYN, M.D., ) NO.: 02-3979 Civil Term
Defendant )
ORDER OF COURT
AND NOW,
,2005, in consideration of the foregoing petition, Wayne Shade,
Esq_, is removed, and
_, Esq. is appointed, as an
arbitrator in his place in the above-captioned action as prayed for.
By the Court,
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DONALD L. DEMUTH : IN THE COURT OF COMMON PLEAS OF
PROFESSIONAL : CUMBERLAND COUNTY, PENNSYLVANIA
MANAGEMENT CONSULTANTS
Plaintiff
V.
002-3979 CIVIL TERM
DAVID L. ALLYN, M.D.
Defendant
IN RE: APPOINTMENT OF ARBITRATORS
ORDER OF COURT
AND NOW, September 30, 2005, the appointment of Wayne F. Shade
Esquire, as chairman of the arbitration panel in the above-captioned matter is
vacated, and Gregory Abeln, Esquire, shall be appointed in his stead; Andrew
Shaw, Esquire, Esquire, and Jaclyn Smith, Esquire, shall remain as arbitrators.
By the Court,
Wayne F. Shade, Esquire
53 West Pomfret Street
Carlisle, PA 17013
P.J.
Gregory B. Abeln, Esquire
37 East Pomfret Street
Carlisle, PA 17013
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William R. Kaufman, Esquire
940 Century Drive
Mechanicsburg, PA 17055
Glenn B. Allyn, Esquire
304 Park Avenue South
11 th Floor
New York, NY 10010
Court Administrator
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DONALD L. DEMUTH
PROFESSIONAL
MANAGEMENT
CONSULTANTS
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
CIVIL ACTION - LAW
: NO. 002-3979 CIVIL TERM
DAVID L. ALLYN, M.D.
IN RE: ARBITRATION PANEL
ORDER OF COURT
AND NOW, November 4, 2005, the appointment of Jaclyn Smith,
Esquire, to the Arbitration Panel in the above matter is vacated, and Stacy
Wolf, Esquire, is appointed in her stead.
By the Court,
P.J.
~gory B. Abeln, Esquire
37 East Pomfret Street
Carlisle, PA 17013
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DONALD DEMUTH
PROFESSIONAL
MANAGEMENT
CONSULTANTS
v.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
02-3979 CIVIL TERM
CIVIL ACTION - LAW
DAVID L. ALLYN, M.D.
IN RE: ARBITRATION
ORDER OF COURT
AND NOW, December 15, 2005, the Court having been informed that the
above case has been settled prior to hearing, the Board of Arbitrators previously
appointed is hereby vacated, and Gregory B. Abeln, Esquire, Chairman, shall be
paid the sum of $50.00.
P.J.
Gregory B. Abeln, Esquire
37 East Pomfret Street _\ __ ., ~
Carlisle, Pa 17013-3313 f'\c"kil\ IJ () (.J~
Court Administrator
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Plaintiff
In The Court of Common Pleas of Cumberland
County, Pennsylvania No. e:o-e: - '3'1' 7"4
_DAZH0 L.. 1\L-L-~rJ \ q'V\. \:)
Defendant
Civil Action - Law.
Oath
We do solemnly swear (or affirm) that we will support, obey and defend the Constitution oithe United
States and the Constitution of this Commonwealth and that we will discharge the duties of our office
with fidelity.
'3~C)(M-
'-Signature - Signature Signature
c-; . \5. !\.BB-N
Name (Chairman) Name Name
Law Firm Law Finn Law Firm
--.
Address Address Address
City, Zip City, Zip City, Zip
Award
We, the undersigned arbitrators, having been du1y appointed and sworn (or affirmed), make the
following award: (Note: If damages for delay are awarded, they shall be separately stated.)
!-;~:~~~!S'~~t~"b~I~~
. Arbitrator, diss ts. (Insert name if applicable.)
Date of Hearing; ~.Z-{t f{6~
Date of Award:
~
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(Chairman) ".____''''_ ~__._. .
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Notice of Entry of Award
Now, the day of , 20 , at , ___M., the above award was
entered upon the docket and notice thereof given by mail to the parties or their attorneys,
Arbitrators' compensation to be paid upon appeal: $
By:
Prothonotary
Deputy
14-1Z-2005 ',:55
P<OM-W F KAJFMAN ESQ
7'71909031
1-415 P OO'/JOl P-SZS
William R. Kaufman
~,.(,....?' ..~ $...
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94Q Century Drive
MechaI).icsburg, PA 17055
(717) 766-7702
fAX1: (717) 790-9031
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EmaiJ: wrldntman.wrkJaw@comcast.n)1
,
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FACSIMILEJ TllANSMIT'rAl- SI-IEE1'
i
Gregory Banon Abeln, EsquiJ;c
COMT-,\'N\';
.">bcln Law Offic~"
?ROk.
Willi2m R. Kaufll",n
'I'D:
D:\TF,:
12.14-05
f'i\XN1J:r-.WliK
245-9622
"rO'CJ\L :..l<), or P.I\C;:.S :NCU:DlNG .:'OV8fu
1
PHONl: Nl1i.\1BER:
245.2851
:::iE.Nl:;E;r$ F,f:,rr.lu~:-,jCI2 N:..IMFS;,
YO:"'lt F.f:Er~r:NCU N~.'-"\lBBjt
J'Ui,
Donald L Dclvlu:h l'rofes,"onoJ ManagemeOl:
ConsultmI:< 'T_ Dav:td L Allyn, MD.
.~bi~no[l~o.002.3979
NQTES/CO!\LMENTS:
Dear Anomey Abeln: ,
PI"",e be advised that the p-"rtie, exeC\ltc~ a S.ttlemellt Agreement and Mutual Rdca,e dated Dcc=ber
12,2005, which was received by my office yesi:crday, December 13, 2005, Therefore, it", necessary to cancel the
arbitrntlon hearing scheduled for December 1 ji, 2005 at 1 :30 p_rn. [ undctswtd that yom office ,vill notify the
ad,n- arbir:rat:O!'S and r.he Cow," ~dn1inisrrator_'
i
If you h..we any ql:-estion>, at wish that I '1oufy any Oth<Or parties, plea,e do no, hesitate to comact me.
Very trllly yOU!S,
/)~
Wi1!i:un R. Kaufman
WRl<'; pab
FAX COVER N<i)TlCli OF CONFIDENTIAUTV
I
The infonnation contained in till'S facsimile rnl:ssage is InTendea only for the personal and contidential use ofthe
designaled recipients named above, This message ma~ be an artomey~cllcnt commt:nication, and as such is pr:vileged and.
confidential, [fthe reader oftllis me".ge is nOllh. ir.jended recipient or an agenl responsible for del1_cring illo the imended
recipient, you are hereby notified that )i)1I. have receiY~d this document in error, and (hat Any review, di~s<:mj.natio."
distribution or cl,lpying of this. messag~ is strictly prohihilec.. If you have received this C'ornmu.nication in error, please notify us
immediulely by ,eJephone and return lh. origmal m.ss~lg. to us by mail at our expense, TIlank you.
If you do no. receive all pages ofthis fax, plea.. call us aI717-766-7702.
i
DONALD L. DEMUTH PROFESSIONAL : COURT OF COMMON PLEAS
MANAGEMENT CONSULT ANTS, : CUMBERLAND COUNTY
PENNSYLVANIA
Plaintiff
v.
DAVID L. ALLYN, M.D.
Defendant
: NO. 02-3979 Civil Term
PRECIPAE TO DISCONTINUE~
TO: THE PROTHONOTARY
The parties in this action have reached a settlement. Therefore, please
discontinue the above-captioned matter.
Respectfully submitted,
WILLIAM R. KAUFMAN
By: 1~~1a
William R. Kaufm
I. D, No_ 78627
DATE:
940 Century Drive
Mechanicsburg, P A 17055
(717)766-7702
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