Public Notices, March 10, 2021

Volume 58, No. 32

 

PUBLIC NOTICES

DECEDENTS’ ESTATES

TERMINATION OF PARENTAL RIGHTS

CHANGE OF NAME

 

TABLE OF CONTENTS

Dmytro Garazha v. TD Ameritrade, Inc.

 

NOTICE IS HEREBY GIVEN that Letters Testamentary or of Administration have been granted in the following estates. All persons indebted to the said estate are required to make payment, and those having claims or demands to present the same without delay to the administrators or executors named.

 

FIRST PUBLICATION

 

ESTATE OF EMMA M. SPANGLER, late of Myerstown Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Madelyn L. Lynch, Executrix

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF NANCY K. HEMLER, late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

Kevin M. Richards, Administrator

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF NORMAN G. REAGAN, late of Union Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Kathy Wisner, Executrix

 

Caleb J. Zimmerman, Esquire

Zimmerman Law Office

466 Jonestown Road

Jonestown, PA 17038

 

ESTATE OF CAROL A. BONNER, late of the Borough of Jonestown, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Ryan B. Longenecker, Executor

 

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF RICHARD A. PURNELL, JR., late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executors.

 

Susanna W. Purnell, Executor

611 Mayflower Drive

Myerstown, PA 17067

 

Richard W. Purnell, Executor

2046 Stillwater Lane

McDonald, PA 15057

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF HAZEL V. SWISHER, late of North Annville Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Fallon D. Binner, Executrix

204 Ridge Road

Annville, PA 17003

 

David R. Warner Jr., Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF PATRICIA M. KEIGHTLY, late of the County of Lebanon, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Lynn A. Zimmerman, Executrix

259 S. 23rd Street

Lebanon, PA 17042

 

Paul W. Kilgore, Esquire

Spitler, Kilgore & Enck, PC

522 South 8th Street

Lebanon, PA 17042

Attorney

 

ESTATE OF THOM L. SHANK A/K/A THOMAS L. SHANK, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

Loren A. Schrum, Administrator

 

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF JANET M. ALBRIGHT, late of the Township of North Cornwall, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

William R. Albright, Jr., Executor

2008 Carlton Drive

Lebanon, PA 17042

 

John D. Enck, Esquire

Spitler, Kilgore & Enck, PC

522 South 8^th Street

Lebanon, PA 17042

Attorney

 

ESTATE OF NEVIN B. WOLFGANG, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executors.

 

Barry J. Wolfgang, Executor

Steven C. Wolfgang, Executor

 

Kevin D. Dolan, Esquire

Nikolaus & Hohenadel, LLP

222 S. Market Street, Suite 201

Elizabethtown, PA 17022

 

SECOND PUBLICATION

 

ESTATE OF LOUISE K. KOONS, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Mina K. Hankins, Executor

 

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF THERESA M. KUTZ, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

John B. Boyle, Executor

 

Anthony J. Fitzgibbons, Esquire

279 North Zinn’s Mill Road

Lebanon, PA 17042

717-279-8313

 

ESTATE OF LEROY C. KAPP, late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Mary Ann D. Kapp, Executor

 

Young and Young

44 S. Main Street

P.O. Box 126

Manheim, PA 17545

 

ESTATE OF ROBERT T. BOYD A/K/A ROBERT THOMAS BOYD, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executors.

 

Richard Boyd, Executor

Robert T. Boyd, Jr., Executor

 

Michael J. Rostolsky, Esquire

8 North Queen Street, Suite 301

Lancaster, PA 17603

 

ESTATE OF SHARON L. SOLIE A/K/A SHARON LYNN SOLIE, late of South Londonderry Township, Lebanon County Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Laurie Jean Repella, Executrix

1410 Parsons Lane

Ambler, PA 19002

 

Thomas S. Long, Esquire

Long Brightbill

315 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF KENNETH I. BUFFENMEYER, late of Annville, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Larry A. Buffenmeyer, Co-Executor

Debra J. Burkholder, Co-Executor

 

John M. Zimmerman, Esquire

Zimmerman Law Office

466 Jonestown Road

Jonestown, PA 17038

 

Peggy M. Morcom, Esquire

Morcom Law, LLC

226  W Chocolate Ave

Hershey, PA 17033

 

ESTATE OF TERRY L. SCHAUER, late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor/Executrix.

 

Tammy Lick, Executrix

184 Airport Rd

Fredericksburg, PA 17026

 

Thomas Schauer, Executor

605 Progress Ave

Lebanon, PA 17042

 

Peggy M. Morcom, Esquire

Morcom Law, LLC

226  W Chocolate Ave

Hershey, PA 17033

 

ESTATE OF ROBERT W. ARNOLD, late of Union Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Margaret F. Arnold, Executrix

345 Awol Road

Jonestown, PA 17038

 

Peggy M. Morcom, Esquire

Morcom Law, LLC

226  W Chocolate Ave

Hershey, PA 17033

 

ESTATE OF ERIC J. WENG, late of Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Corine Elizabeth Koser, Executrix

1452 S White Oak St

Lebanon, PA 17042

 

Peggy M. Morcom, Esquire

Morcom Law, LLC

226  W Chocolate Ave

Hershey, PA 17033

 

ESTATE OF PAUL J. SHOWERS, late of Palmyra Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Dixie L. Showers, Executrix

179 Juniper Street

Palmyra, PA 17078

 

Peggy M. Morcom, Esquire

Morcom Law, LLC

226  W Chocolate Ave

Hershey, PA 17033

 

ESTATE OF NANCY RUTH HAMMERS, late of Palmyra Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Kathy L. Hammers, Executrix

1809 Wexford Road

Palmyra, PA 17078

 

Peggy M. Morcom, Esquire

Morcom Law, LLC

226  W Chocolate Ave

Hershey, PA 17033

 

ESTATE OF SHIRLEY A. FAUSNACHT A/K/A SHIRLEY ANN FAUSNACHT, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Kenneth B. Fausnacht, Executor

 

Anthony J. Fitzgibbons, Esquire

279 North Zinn’s Mill Road

Lebanon, PA 17042

717-279-8313

 

ESTATE OF LOIS S. WEAVER, late of Palmyra Borough, Lebanon County, Pennsylvania, died 01/13/2021. Letters Testamentary have been granted to the undersigned Executrix.

Debra K. Snyder, Executrix

 

George W. Porter, Esq.

909 E. Chocolate Ave.

Hershey, PA 17033

 

THIRD PUBLICATION

 

ESTATE OF MARGARET M. HERR, late of Palmyra Borough, Lebanon County, Pennsylvania, Deceased. Letters Testamentary have been granted to the undersigned Executrix.

Linda P. Chidester, Executrix

 

Gerald J. Brinser, Esquire

1. O. Box 323

Palmyra, PA 17078

 

ESTATE OF BARBARA A. HEISEY, late of North Lebanon Township, Lebanon County, Pennsylvania, Deceased. Letters Testamentary have been granted to the undersigned Executrix.

Linda A. Blouch, Executrix

 

Keith D. Wagner, Esquire

1. O. Box 323

Palmyra, PA 17078

 

ESTATE OF DORETTA LUCILLE ZEIDERS A/K/A LUCILLE ZEIDERS A/K/A D. LUCILLE ZEIDERS, late of Palmyra Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

William W. Zeiders, Executor

333 East Main Street

Palmyra, PA 17078

 

Edward J. Coyle, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF LUCILLE T. ANDERSON, late of Millcreek Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Judith Waldron, Executor

 

Young and Young

44 S. Main Street

P.O. Box 126

Manheim, PA 17545

 

ESTATE OF EDWARD W. LAUB, late of North Cornwall Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Robin Stryker, Executrix

 

John C. Stevens, Esquire

Gardner and Stevens, P.C.

109 West Main Street

Ephrata, PA 17522

 

ESTATE OF GERTRUDE M. TRAUTMAN, late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Gary L. Trautman, Executor

 

Eric Schelin Rothermel, Esquire

May, May and Zimmerman, LLP

49 North Duke Street

Lancaster, PA 17602

 

ESTATE OF CARLA M. WEAVER A/K/A CARLA M. PETERSON, died January 7, 2021, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Eric Allen Peterson, Executor

 

Jordan D. Cunningham, Esquire

Cunningham, Chernicoff & Warshawsky, P.C.

2320 North Second Street

Harrisburg, PA 17110

 

ESTATE OF ANNA M. DUSMAN A/K/A ANNA MARY DUSMAN, date of death December 3, 2020, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

The Bryn Mawr Trust Company, Executor

1 E. Chocolate Ave., Suite 200

Hershey, PA 17033

 

Kendra A. Mohr, Esq.

Pannebaker & Mohr, P.C.

4000 Vine St., Suite 101

Middletown, PA 17057

 

ESTATE OF DOROTHY K. BICKSLER, late of Palmyra Borough, Lebanon County, Pennsylvania, Deceased. Letters Testamentary have been granted to the undersigned Executrix.

Brynn McCurdy, Executrix

 

Keith D. Wagner, Esquire

1. O. Box 323

Palmyra, PA 17078

 

ESTATE OF MAYS G. KURTZ, JR., late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executors.

Steve Kurtz, Executor

PO Box 591

Clear Spring, MD 21722

 

Susan K. Pierce, Executrix

2284 Cornwall Road,

Lebanon, Pa 17042

 

Paul W. Kilgore, Esquire

Spitler, Kilgore & Enck, PC

522 South 8^th Street

Lebanon, PA 17042

Attorney

 

ESTATE OF THOMAS A. LONG, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executors.

Thomas J. Long, Executor

1812 Center Street

Lebanon, PA 17042

 

Michael D. Long, Executor

173 N. Fisher Street

Jonestown, PA 17038

 

Paul W. Kilgore, Esquire

Spitler, Kilgore & Enck, PC

522 South 8^th Street

Lebanon, PA 17042

Attorney

 

ESTATE OF GLENN E. WOLGEMUTH, late of the Township of Heidelberg, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Bonita J. Wolgemuth, Executor

505 Wedgewood Drive

Lebanon, PA 17042

 

John D. Enck, Esquire

Spitler, Kilgore & Enck, PC

522 South 8^th Street

Lebanon, PA 17042

Attorney

 

 

TERMINATION OF PARENTAL RIGHTS

 

IN THE COURT OF COMMON PLEAS

OF LANCASTER COUNTY, PENNSYLVANIA

ORPHANS’ COURT DIVISION

 

IN RE:                                                                      )

)

Baby Girl Dixon,                   )  No. 2021 – 0297

)

A Minor                                                  )

 

 

TERMINATION OF PARENTAL RIGHTS OF JACOB TRYYGMEISTER

 

 

TO:         JACOB TRYYGMEISTER

 

You are hereby notified that a Petition to Involuntary Termination of Parental Rights has been filed against you, asking the Court to terminate all rights you have to your child, Baby Girl Dixon (born September 25, 2020).  The Court has set a hearing to consider ending your rights to your child. That hearing will be held in a Court Room to be announced the day of the hearing at the Lancaster County Courthouse, situate at 50 North Duke Street, Lancaster, Pennsylvania, said hearing to be held on April 7, 2021, at 10:00 o’clock a.m.  If you do not appear at this hearing, the court may decide that you are not interested in retaining your rights to your child and your failure to appear may affect the Court’s decision on whether to end your rights to your child.  You are warned that even if you fail to appear at the scheduled hearing, the hearing will go on without you, and your rights to your child may be ended by the Court without your being present.

 

You are also notified that following the hearing to consider ending your rights to your child, an adoption hearing may be held, as a result of which the Court may decree that an adoption take place whereby your child shall be adopted by another and all parental rights with respect to the child shall be placed in another.

 

YOU HAVE THE RIGHT TO BE REPRESENTED AT THE HEARING BY A LAWYER.  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

Court Administrator’s Office

Lancaster County Court House

50 North Duke Street

Lancaster, PA 17602

Telephone No. (717) 299-8041

 

Ashley Glick, Esquire

Kling & Deibler, LLP

131 W. Main St.

New Holland, PA 17557

 

 

 

CHANGE OF NAME

 

Notice is hereby given that on the 18th day of February 2021, the Petition of Alani Kamila Homes-Hernandez was filed in the above Court requesting an Order to Change the Name of Petitioner from Alania Kamila Holmes- Hernandez to Alani Kamila Rodriguez- Hernandez.

The Court has fixed the 23^rd day of March 2021 at 9:30 a.m., before the Honorable Charles T. Jones, Jr. in Courtroom Number 4 of the Lebanon County Courthouse, 400 South Eighth Street, Lebanon, Pennsylvania, as the time and place the Hearing of said Petition, where any and all interested parties may appear and show cause, if any they have, why the request of Petitioner should not be granted.

 

Andrew J. Race, Esquire

REILLY WOLFSON

1601 Cornwall Road

Lebanon, PA 17042

(717) 273-3733

Counsel for Petitioner

 

 

JUDGES OPINION

 

Dmytro Garazha v. TD Ameritrade, Inc.,

 

Civil Action-Law-Motion to Compel Arbitration-Contract-Uniform Business Records as Evidence Act-Prohibition against Hearsay-Exceptions-Authentication of Business Records

 

Plaintiff filed a Complaint against Defendant for alleged dissemination of confidential information acquired by Defendant through Plaintiff’s status as an online account holder.  Defendant filed a Motion to Compel Arbitration on the basis that the action is subject to compulsory arbitration pursuant to the terms of the parties’ agreement.

 

1. Arbitration is a matter of contract.

 

2. Parties to a contract cannot be compelled to arbitrate a given issue absent an agreement between them for arbitration of disputes.

 

3. Where a party to a civil action seeks to compel arbitration, the court first must determine whether a valid agreement to arbitrate exists between the parties and, if so, if the dispute involved is within the scope of the arbitration provision.

 

4. The scope of the arbitration is determined by the intention of the parties as ascertained in accordance with the rules governing contracts generally.

 

5. The purpose of the Uniform Business Records as Evidence Act, 42 Pa.C.S. § 6108, is to create an additional exception to the hearsay rule in circumstances where a record of an act, condition or event was made in the regular course of business at or near the time of the act, condition or event and where the sources of information, method and time of preparation were such so as to justify its admission.

 

6. It is not essential to produce the person who made the entries or the custodian of the records at the time when the entries were made, nor does the law require that a witness qualifying business records have personal knowledge of the facts reported in the business record.

 

7. As long as the authenticating witness can provide sufficient information relating to the preparation and the maintenance of the records to justify a presumption of trustworthiness of the business records of the company, a sufficient basis is provided to offset the hearsay character of the evidence.

 

8. Pa.R.E. Rule 901(a) provides that to satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it to be.

 

9. The documents submitted by Defendant properly were authenticated and admitted as evidence where Defendant’s branch manager testified from personal knowledge and experience about the acquisition of the former company by Defendant and the notification procedures followed in the acquisition.

 

10. Plaintiff agreed to submission of disputes to arbitration where the record establishes that he signed the account application establishing an account in 1999 with a company subsequently acquired by Defendant so as to establish the existence of a valid agreement to arbitrate.

 

11. The dispute alleged in the Complaint is within the scope of the arbitration agreement where the claim pertains to the parties’ business relationship and Plaintiff’s use of the services provided by Defendant, which is encompassed by the language of the agreement for arbitration.

 

L.C.C.C.P. No. 2017-00486, Opinion by John C. Tylwalk, President Judge, May 20, 2020.

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CIVIL DIVISION

 

DMYTRO GARAZHA,                                  :           NO. 2017-00486

Plaintiff                                 :

:

1. :

:

TD AMERITRADE, INC.,                             :

Defendant

 

ORDER OF COURT

 

AND NOW, this 20th day of May, 2020, upon consideration of Defendant’s Motion to Compel Arbitration, the evidence adduced at the hearing conducted on August 29, 2019, and the Supplemental Memoranda of Law submitted by the parties, it is hereby Ordered that said Motion is GRANTED.  The parties are directed to proceed with Arbitration in accordance with the terms of their Agreement.

BY THE COURT:

 

                                                                                    _________________________, P.J.

                                                                                    JOHN C. TYLWALK

 

JCT/jah

 

Cc:  Dennis M. Moskal, Esquire/500 Grant Street, Suite 2900/Pittsburgh, PA 

            15219

       Kimberly S. Ingersoll, Esquire/325 Sentry Parkway/Building 5W, Suite

            200/Blue Bell, PA  19422

        Judith Huber, Esquire/Law Clerk

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CIVIL DIVISION

 

DMYTRO GARAZHA,                                  :           NO. 2017-00486

Plaintiff                                 :

:

1. :

:

TD AMERITRADE, INC.,                             :

Defendant

 

APPEARANCES:

 

DENNIS M. MOSKAL, ESQUIRE                          FOR DMYTRO GARAZHA

 

KIMBERLY S. INGERSOLL, ESQUIRE                  FOR TD AMERITRADE, INC.

 

OPINION, TYLWALK, P.J., MAY 20, 2020.

 

Plaintiff’s Complaint alleges various causes of action against Defendant for the dissemination of confidential information acquired by Defendant through Plaintiff’s status as an online account holder.  Defendant has filed a Motion to Compel Arbitration asserting that this matter is subject to compulsory arbitration as per the terms of the parties’ agreement.   The Motion was previously listed by the parties for Argument; however, after reviewing the record we found it necessary to conduct a hearing due to the existence of various issues of fact and questions regarding the authentication of various documents which could impact our decision.  We conducted the hearing on August 29, 2019, the transcript has been lodged, and the parties have filed post-hearing Memoranda of Law in support of their positions.

Arbitration is a matter of contract, and parties to a contract cannot be compelled to arbitrate a given issue absent an agreement between them to arbitrate that issue.  Elwyn v. DeLuca, 48 A.3d 457 (Pa. Super. 2012).  Arbitration agreements are to be strictly construed and not extended by implication; when parties have agreed to arbitrate in a clear and unmistakable manner, every reasonable effort should be made to favor the agreement unless it may be said with positive assurance that the arbitration clause involved is not susceptible to an interpretation that covers the asserted dispute.  Highmark, Inc. v. Hospital Service Association of Northeastern Pennsylvania, 785 A.2d 93 (Pa. Super. 2001).

Where a party to a civil action seeks to compel arbitration of that action, a two-part test is employed to determine if arbitration is required. First, the trial court must determine a valid agreement to arbitrate exists between the parties. Second, if the trial court determines that such an agreement does exist, it must then determine if the dispute involved is within the scope of the arbitration provision. The scope of arbitration is determined by the intention of the parties as ascertained in accordance with the rules governing contracts generally.

 

Keystone Technology Group, Inc. v. Kerr Group, Inc., 824 A.2d 1223, 1227 (Pa. Super. 2003).

At the hearing, Defendant presented the testimony of Jason Weyforth, a Branch Manager of TD Ameritrade, Inc. (“Ameritrade”).  Weyforth testified that he has been a Branch Manager for Ameritrade since February 2018.   Prior to that time, he had been a Branch Manager with Scottrade since 2006.  Scottrade was acquired by Ameritrade in February 2018.  Weyforth explained that Ameritrade offers online trading accountS to clients for investing stocks, bonds and mutual funds.  His duties with both employers included supervision of employees and client accounts, aiding clients with their investments, and compliance matters.

Weyforth explained that in setting up an online brokerage account with Ameritrade, clients have the option of opening an account on the Ameritrade website or in person at the branch office.  In order to establish an account on the website, the client is required to enter their information (name, mailing address, social security number, and the type of account they desire to open) and review Ameritrade’s terms, conditions and agreements.  The online application requires that the client sign the application electronically.  An account cannot be established without the client’s signature.

Weyforth explained that when Ameritrade acquired Scottrade, clients were notified of the conversion and acquisition by multiple means.  Letters were mailed out and multiple notices were posted on the website.  When a client would log into their account, they were presented with several notifications.  If a client did not access their account online, letters were mailed out as well.  New applications were not sent out.  He did not know how Ameritrade confirmed the existence of the online accounts and did not know if a search for a signed application from Scottrade clients had been undertaken during the conversion.  However, he knew that was not a requirement of the conversion.  During the Scottrade conversion process in 2018, no new applications were sent to Scottrade online brokerage account holders.  Once he became a Branch Manager for Ameritrade, he understood that this was the standard protocol for all such conversions.

As Branch Manager, one of Weyforth’s duties is to check a client file if there is any question as to the existence of a signed application.  He confirmed that he checked Plaintiff’s file for his online brokerage account and found that it contained a signed application dated September 10, 1999.  (Exhibit “1”)  Weyforth noted that in Plaintiff’s signed application, he had agreed to be “bound by the terms and conditions as currently set forth in Datek Online’s Customer Agreement as amended from time to time.”  (Exhibit “1”)  The application further provided that “[t]his agreement contains a predispute arbitration clause.  This clause can be found on paragraph 35 and 36 of the agreement.”  (Exhibit “1”)

The Datek Online Brokerage Services Customer Agreement, referred to in the application, contains an agreement to arbitrate at Paragraph 36:

36. Agreement to Arbitrate Controversies

You agree that any and all controversies which may arise between you and Datek Online or any of our officers, directors, employees, agents, subsidiaries or affiliates including but not limited to those involving transactions of any kind made on your behalf by, through or with Datek Online, our officers, directors, employees, agents, subsidiaries or affiliates and the construction, performance or breach of this or any other agreement between you and Datek Online shall be determined by arbitration conducted before the NASD in accordance with its arbitration rules then in force.  You specifically agree, however, as permitted by statute and/or regulation, to arbitrate all such controversies before the NASD in New York, New York.  Judgment upon any award of the arbitrators may be entered in any court, state or federal, having jurisdiction thereof.

 

(Exhibit “2”)

During Weyforth’s testimony, Plaintiff’s counsel noted that the effective date set forth on Exhibit “1” was December 1999, while Plaintiff is alleged to have signed the application in September 1999, meaning that Plaintiff could not have been given that document when he signed the application.  Weyforth explained that Paragraph 45 of Exhibit “2” provides:

Amendments:  Entire Agreement.

DOBS may at any time amend this agreement by modifying or rescinding any of our existing provisions or conditions or by adding any new provision or condition by conspicuously posting notice of such amendment on the website or by providing written notice to you.  Continued use of Datek Online after such notice will constitute acknowledgement and acceptance of such amendment.  This agreement represents the entire agreement. …

 

(Exhibit “2”, Para. 45)

 

Weyforth further pointed out the language of Paragraph 42, Line 7 of Exhibit “2”: “This agreement will inure to the benefit of Datek Online and our successors, assigns, and agents.”  (Exhibit “2”, Para. 42, Line 7)  In addition, Exhibit “1” includes the following language:  “By executing this agreement, subscriber agrees (A) that it has read and agrees to be bound to the NASDAQ Consolidated Subscriber Agreement, a copy of which is attached hereto.”  (Exhibit “1”, Line 3)[1]  Weyforth further confirmed that Exhibit “2” did not contain a signature line for the Ameritrade client.  Weyforth next referred to the Ameritrade Client Agreement (Exhibit “4”) which is provided to clients when they open new accounts.  That Agreement provides, in part:

This agreement contains a predispute arbitration clause.  By signing an arbitration clause, the party agrees – the parties agree as follows:

 

All parties to this agreement are giving up their right to sue each other in court, including the right to jury trial except as provided by the rules of the arbitration forum in which a claim is filed.

 

…

 

I agree that any controversy between you and your affiliates, any of their respective officers, directors, employees, or agents and me, including any of my officers, directors, employees, or agents, arising out of or relating to this agreement, our relationship, any services provided by you, or the use of the services, and whether arising before or after the date of this agreement, shall be arbitrated and conducted under the provisions of the Code of Arbitration of the FINRA.

 

(Exhibit “4”, Para. 12)

 

Weyforth acknowledged that this document has an effective date of December 1, 2016 and is the arbitration provision which currently governs Ameritrade’s online client brokerage accounts.  He further acknowledged that the events which are the basis for this litigation occurred in July of 2016.  He explained that this provision is applicable to Plaintiff’s claim in this action because Plaintiff had agreed to be bound by all subsequent amendments to the original agreement.  Weyforth confirmed the existence of an Ameritrade agreement which predated December 1, 2016, but did not have one with him at the hearing.

On cross-examination, Weyforth admitted that he did not take part in the conversion process between Ameritrade and Datek and could not specifically say whether Ameritrade had sent a notification letter to Plaintiff.  However, he confirmed that it was standard in the industry for the acquiring firm to notify its clients in the event of an acquisition.  Although he could not say for certain how Plaintiff was notified, he reiterated that typically a letter is mailed out and online notifications are posted.  On redirect, Weyforth testified that, in his experience, Ameritrade routinely updated its website with amendments to its policies, terms, and conditions.

In his Complaint, Plaintiff acknowledged that he has been a customer of Ameritrade since September 1999.  However, in his response to the Motion to Compel Arbitration, he claimed that he “does not remember” signing the Datek online Account Application, but admits that it does appear to be his signature on the document proffered by Ameritrade.  He further claimed that he had no knowledge of Ameritrade’s acquisition of Datek and did not recall receiving a conversion letter which enclosed a copy of the account guide booklet which contained the account terms and conditions.  He also denied having any knowledge that his online trading account with Ameritrade was governed by any written agreement which included an arbitration agreement.

Plaintiff did not personally appear and presented no testimony at the hearing.  However, Plaintiff’s counsel consistently objected to Weyforth’s testimony based on his lack of actual knowledge of the Datek/Ameritrade conversion and the specific details of the conversion notifications allegedly provided to Plaintiff.

We first accept Ameritrade’s contention that Plaintiff did sign the Datek Account Application when he established his account in 1999.  Although Plaintiff alleged that the signature on the Account Application proffered by Ameritrade was suspect, we note the language of Pa.R.C.P. No. 1029, which provides, in part:

Rule 1029. Denials. Effect of Failure to Deny

(a) A responsive pleading shall admit or deny each averment of fact in the preceding pleading or any part thereof to which it is responsive. A party denying only a part of an averment shall specify so much of it as is admitted and shall deny the remainder. Admissions and denials in a responsive pleading shall refer specifically to the paragraph in which the averment admitted or denied is set forth.

(b) Averments in a pleading to which a responsive pleading is required are admitted when not denied specifically or by necessary implication. A general denial or a demand for proof, except as provided by subdivisions (c) and (e) of this rule, shall have the effect of an admission.

(c) A statement by a party that after reasonable investigation the party is without knowledge or information sufficient to form a belief as to the truth of an averment shall have the effect of a denial.

Pa.R.C.P. No. 1029(a)-(c).

Here, Plaintiff has failed to specifically deny that the signature which appears on the Account Application provided by Ameritrade is his and simply asserts that he lacks knowledge of the truth or falsity of this allegation.  This response lacks the specific denial required by Rule 1029 and therefore has the effect of an admission.  Moreover, although Rule 1029 permits a party to deny an averment by stating that after reasonable investigation, he is without knowledge or information sufficient to form a belief as to the truth of the averment, a party cannot use the rule to deny allegations whose truth or falsity he must know.  Cercone v. Cercone, 386 A.2d 1, 4 (Pa. Super. 1978).   Plaintiff is in the position to know whether or not he signed the Account Application which established his online brokerage account.  In addition, he admits that the signature appears to be his and he did not appear at the hearing to offer any testimony or evidence in support of his general denial.  For these reasons, we believe that Ameritrade has established that Plaintiff signed the original Account Application and was subject to the terms and conditions included therein, including his agreement to arbitrate and to be bound by all future amendments.

With regard to Weyforth’s testimony, we note the language of the Uniform Business Records as Evidence Act:

• 6108. Business records

 (a) Short title of section.–This section shall be known and may be cited as the “Uniform Business Records as Evidence Act.”

(b) General rule.–A record of an act, condition or event shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the tribunal, the sources of information, method and time of preparation were such as to justify its admission.

(c) Definition.–As used in this section “business” includes every kind of business, profession, occupation, calling, or operation of institutions whether carried on for profit or not.

42 Pa.C.S.A. §6108.  As stated in Boyle v. Steinman, 631 A.2d 1025 (Pa. Super. 1993):

The purpose of Uniform Business Records as Evidence Act is to create an additional exception to the hearsay rule in circumstances where a record of an act, a condition or an event was made in the regular course of business, at or near the time of the act, condition or event and where the sources of information, method and time of preparation were such as to justify its admission. … The question of whether documents should be admitted under the “business records” exception to the hearsay rule is within the discretionary power of the trial court provided such discretion is exercised within the Uniform Business Records as Evidence Act.  …  It is not essential under the Uniform Business Records as Evidence Act to produce either the person who made the entries or the custodian of records at the time the entries were made. …  Moreover, the law does not require that a witness qualifying business records even have a personal knowledge of the facts reported in the business record.  …  As long as the authenticating witness can provide sufficient information relating to the preparation and maintenance of the records to justify a presumption of trustworthiness for the business records of a company, a sufficient basis is provided to offset the hearsay character of the evidence.

Id., 631 A.2d at 1032-33 (Pa. Super. 1993) allocatur denied, 538 Pa. 663, 649 A 2d 666 (1994) (internal citations omitted).

Pa. R.  E. 901 sets forth the requirement of authentication or identification and provides, in part:

 

Rule 901. Authenticating or Identifying Evidence

 (a) In General. Unless stipulated, to satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

(b) Examples. The following are examples only–not a complete list–of evidence that satisfies the requirement:

(1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be.

(9) Evidence About a Process or System. Evidence describing a process or system and showing that it produces an accurate result.

Pa.R.E. 901(a), (b)(1), (9).

We believe the documents produced by Ameritrade at the hearing were properly authenticated and admitted as evidence under these rules.  Weyforth testified from his personal knowledge and experience about the conversion of Scottrade and Ameritrade and the notification procedures followed in that acquisition.  He further testified that these procedures were standard in the industry and were those typically undertaken in all such conversions by the acquiring entity.  Under these rules, Weyforth was not required to have personal knowledge of the specific details of the letters sent to Plaintiff or the specific notices which were posted online.  Weyforth provided sufficient information relating to the steps taken to notify existing clients of the entity being acquired in a conversion to justify a presumption of trustworthiness for Ameritrade’s business records.  For these reasons, we believe Ameritrade has succeeded in establishing that a valid agreement to arbitrate existed between itself and Plaintiff.

Having determined the existence of a valid agreement to arbitrate, we must also determine whether the present dispute between the parties is within the scope of the arbitration agreement.  We again note the language of the current Ameritrade Client Agreement:

I agree that any controversy between you and your affiliates, any of their respective officers, directors, employees, or agents and me — arising out of or relating to this Agreement, our relationship, any Services provided by you, or the use of the Services, and whether arising before or after the date of this Agreement, shall be arbitrated and conducted under the provisions of the Code of Arbitration of the FINRA.[2]

 

(Exhibit “4”, Para. 12)

 

In this litigation, Plaintiff complains that confidential, personal, and trading information he provided to Ameritrade for the use of his online brokerage account was disseminated to third parties without his knowledge or consent.  We believe this claim pertains to the parties’ business relationship and Plaintiff’s use of the services provided by Ameritrade and is, therefore, encompassed by the language of Paragraph 12 of the Ameritrade Client Agreement.  Despite the fact that this claim may have arisen prior to the effective date, the above language specifically refers to any controversy, regardless of whether it had arisen prior to the date of the Agreement.

For these reasons, we will grant Ameritrade’s Motion to Compel Arbitration and will enter an appropriate Order.

[1] Weyforth further acknowledged that the NASDAQ Subscriber Agreement did not contain an arbitration provision and was not relied on by Ameritrade in this proceeding.  See, Exhibit “3.”

[2] FINRA is the successor entity to the NASDAQ.