PHILADELPHIA – General Foods has sued a group of its former attorneys and their firms, claiming their failure to assert proper and relevant defenses led to the company being evicted from its leased premises, located in the Frankford section of Philadelphia.
General Food Services, LLC (doing business as “General Foods, LLC”) of Elkins Park filed suit in the Philadelphia County Court of Common Pleas on Oct. 13 versus Louis I. Lipsky, Esq., Ashley H. Kazman, Esq. and Victor Lipsky (doing business as “Lipsky & Brandt”), Walter Weir Jr., Esq and Weir & Partners, LLP, all of Philadelphia.
On Sept. 27, 2013, North City Development, Co. filed a civil action against General Foods, alleging the latter had failed to pay rent, taxes, insurance and common area maintenance fees on a Frankford Avenue property in Philadelphia, pursuant to a lease between the two parties. However, General Foods says it complied with a 10-day notice provision provided by the lease and had substantially performed under its terms.
General Foods retained the services of all the defendants in the new case. On Oct. 25, 2013, Lipsky filed a petition to strike or open a confessed judgment – but supposedly failed to allege General Foods had complied with the notice provision and performed well under the lease terms, which would have been “a significant and persuasive basis for opening the confessed judgment.”
“Rather, Lipsky and/or Weir alleged in the petition that the Confession of Judgment was improper on the procedural theories that North City failed to aver in the complaint that it provided notice to General Foods of the default, that North City failed to attach to its complaint a signed verification, and that the amounts allegedly owed by General Foods to North City were grossly inaccurate and barred by the statute of limitations,” the suit states.
“Lipsky and/or Weir requested that the Court open the judgment in the alternative based upon the same procedural theories. However, these legal theories which, if proven, could have been bases for striking the confessed judgment but would not have been bases for opening the confessed judgment. Lipsky and/or Weir should have stated all of the Defenses in the Petition in order to have them considered by the trial court and ultimately by the Pennsylvania Superior Court."
Rather, the Lipsky and Weir defendants did not raise the aforementioned defenses until later, including them within a reply to North City’s response to the petition. Eventually, both the trial court and the Superior Court of Pennsylvania ruled against General Foods, in April 2014 and November 2015 respectively, both believing the company had waived the defenses in question by not raising them in the original October 2013 petition.
General Foods then filed an appeal of the Superior Court decision to the Supreme Court of Pennsylvania, an appeal which was later denied by that judicial body in August 2016. Subsequent to the final dismissal of General Foods’s appeal by the Supreme Court, the company was ultimately evicted from the Frankford Avenue property.
General Foods believes they would have been successful in opening the confessed judgment if the defenses had been properly raised in the original October 2013 petition, that the defendants failed to know or research the relevant case law in this matter, failed to assert all of the proper defenses in the initial petition and failed to amend that same initial petition with said defenses, among other charges.
For a count of negligence or alternatively, breach of contract, the plaintiff is seeking damages, jointly and severally, in excess of $50,000, plus interest and costs.
The plaintiff is represented by Mark C. Clemm and Katie M. Clemm of Clemm & Associates, in Plymouth Meeting.
Philadelphia County Court of Common Pleas case 171001738
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at firstname.lastname@example.org