Zamsky v. Dodge

43 Pa. D. & C.5th 128
CourtPennsylvania Court of Common Pleas, Delaware County
DecidedNovember 5, 2014
DocketNo. 2011-002637
StatusPublished

This text of 43 Pa. D. & C.5th 128 (Zamsky v. Dodge) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Delaware County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zamsky v. Dodge, 43 Pa. D. & C.5th 128 (Pa. Super. Ct. 2014).

Opinion

GREEN, J.,

— Barbara Zamsky, Dodge Premier, Inc., and Premier Platform Tennis, Inc. filed the instant appeal following a June 30, 2014 order granting Jeffrey Sherman’s motion for summary judgment.1 Appellants’ “statement of errors complained of pursuant to order the 28th day of July 2014” ostensibly parallels Jeffery Sherman’s motion for summary judgment and provides, in relevant part, as follows:

1. The court was in error. The aforesaid motion for summary judgment stated at 11, “Dodge and Anthony retained the services of Sherman, to act as their attorney and assist with the formation of Premier, LLC. Complaint ¶ 24.”
[131]*1312. The court was in error[.] The aforesaid motion for summary judgment omitted informing the court that discovery has not been completed.
3. The court was in error[.] The aforesaid motion for summary judgment omitted informing the court that the argument of defendant Jeffery Sherman, that his services were as a facilitator only, omits the information that defendant Jeffery Sherman was paid $1500 by check dated 1/13/09 with Dodge Corp. on the memo line.
4. The court was in error. The aforesaid motion for summary judgment omitted informing the court that despite defendant Sherman’s assertion that all electronic records were lost, one e-mail from defendant Sherman came into plaintiffs’ possession by reason of being transmitted on plaintiffs computer.
5. The court was in error. The aforesaid motion for summary judgment omitted informing the court that defendant Jeffrey Sherman was listed on the records of the Department of State of the Commonwealth of Pennsylvania, business entity filing history, as President of PPT LLC, on the date of the formation of the LLC, December 24, 2008 and continued being shown on the business entity filing history as President of PPT LLC, on the records of Department of State of the Commonwealth of Pennsylvania, until at least March 10, 2011.
6. The court was in error. The aforesaid motion for summary judgment admits at Paragraph 26. “Appellants can conceivably maintain a claim of conspiracy against Sherman only, if his alleged conduct was other than as a lawyer for his clients.”
[132]*1327. The court was in error. The aforesaid motion for summary judgment was granted as to Count I conspiracy. The facts in the various paragraphs of Count I specifically allege the defendants including defendant Sherman conspired to acquire the business of plaintiff Premier Platform Tennis Inc., took confidential and proprietary information as to customers, collected accounts receivable, withdrew funds from the bank account of plaintiff DPI, took equipment and other assets without permission or consent of any authorized party.
8. The court was in error. The aforesaid motion for summary judgment was granted as to Count I conspiracy as the movants counsel for defendant Sherman advised the court, because there was a release of two co-defendants; Dodge and Anthony, there could not be a conspiracy of one, that is defendant Sherman alone.
9. The court was in error. The aforesaid motion for summary judgment was granted as to Count II conversion by agent. The facts in the various paragraphs of Count II specifically allege Dodge while still an officer and an employee of plaintiff PPT Inc. and DPI with the assistance of Anthony and Sherman formed defendant PPT LLC; further acting, in concert with misappropriated assets of the plaintiffs herein.
10. The court was in error. The aforesaid motion for summary judgment was granted as to Count III unfair competition. The facts in the various paragraphs of Count III specifically allege all of the defendants including defendant Sherman, conspired to acquire the business of the plaintiffs PPT Inc. and DPI took and used business and proprietary information of plaintiffs PPT Inc. and DPI, engaged in deceptive selling [133]*133practices using the name of plaintiff Premier Platform Tennis Inc., and used forms, cards and other material similar to that used by PPT Inc.
11. The court was in error. The aforesaid motion for summary judgment was granted as to Count IV defendant david dodge violation of fiduciary duties. The facts in the various paragraphs of Count IV specifically allege that from and after May 1, 2008, defendant David Dodge — in concert with the other named defendants (Anthony and Sherman) converted took and misappropriated assets of the plaintiffs herein.
12. The court was in error. The aforesaid motion for summary judgment was granted as to Count VI defendants tortious interference plaintiffs business relations. The facts in the various paragraphs of Count IV specifically allege that the engagement/employment of defendant Dodge by Plaintiffs was never terminated and that he, in concert with the other defendants, including defendant Sherman, willfully solicited customers and suppliers of plaintiffs for his and their own purposes.
13. The court was in error. The aforesaid motion for summary judgment was granted as to Count VII unjust reinrichment. The facts in the various paragraphs of Count VII specifically allege that defendant Dodge in concert with the other named defendants including defendant Sherman took and misappropriated assets of the plaintiffs.
14. The court was in error. The aforesaid motion for summary judgment was granted as to Count VIII. The facts in the various paragraphs of Count VIII specifically allege that the paragraphs 1 through 58 [134]*134of the complaint were incorporated in Count VIII by reference and defendant Dodge, in concert with the other named defendants, including defendant Sherman took including [sic] and misappropriated assets of the plaintiffs.
15. The court was in error. The aforesaid motion for summary judgment was granted as to Count IX. The facts in the various paragraphs of Count IX specifically allege defendant Dodge in concert with the other named defendants including defendant Sherman took and misappropriated assets of the plaintiffs.

Appellants’ statement of errors complained of pursuant to order the 28th day of July 2014 further provides that the trial court “was in error as to not giving full impact to the following issues of fact”:

1. Defendant Jeffrey Sherman was President of PPT LLC for a period of almost three (3) years.
2. Defendant Jeffrey Sherman has not presented facts of proof that he is still not the President of PPT LLC.
3. Defendant Jeffrey Sherman was the responsible party in the docketing statement of the department of revenue.
4. Defendant Jeffrey Sherman has not presented facts of proof that he is still not the responsible party in the docketing statement of the department of revenue.
5. The release of defendants Dodge and Anthony has not been finalized by an agreement as required by the divorce court.
6. Such agreement prepared in accordance with the directions of the court is required to that [sic] provide [135]

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Bluebook (online)
43 Pa. D. & C.5th 128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zamsky-v-dodge-pactcompldelawa-2014.