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HomeMy WebLinkAbout96-02930 I ~ I 1 I I I . I I I ';I"l; '-," "',I"", Hi .,;' ~ ., \,. \,. 11 I I)' ,/ L I I' '" , , l 1-' ~ I, " , ! I I ~ 1 \ I s:: "I " .~ ~ ,I' I, ~ ", i.1 \ i ~ ,- I ,,/ , I ,/ " ,I "I , 'Ii , I:' 'i 'I, " I " ,) .\ , \ I , j I '" I t I ! , I 1 I I ( I , , ) I \,; i ~ " \ , I " ! ~ ,I .... I ,\ C I II It' '" fl ~ Ii'; ~ 'l ! " , i/ , , ,I " I' " , , , r', ",', 'I , ,I '" , " II ,I CERTIFICATE OF SERVICE .(1 AND NOW, this L!t3Iay of , 1997, I hereby certify that I have served II copy of the within document on the following by depositing a true and correct copy of the same In the U,S, Mails at Harrisburg, Pennsylvania, postage prepaid, addressed to: M.J, Cohen, Esquire Thor-Kourt 1967 Flint Hili Road Coopersburg, PA 18036-9210 CALDWELL & KEARNS - t1f'~ L 96.262 91313.1 KIMBERLY D. KUNTZ I Plaintiff IN THE COURT OF COMMON PLEAS . CUMBERLAND COUNTY, PENNSYLVANIA l I I, '" I. , , va. NO. qb'- ;'Uf30 ~ T~ :1 I WILLIAM FERRARA, Detendant CIVIL ACTION - AT LAW AND IN EQUITY NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment 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. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE Court Administrator CUmberland County Courthouse Carlisle, PA 17013 (717) 240-6200 KIMBERLY O. KUNTZ, Plaintit! IN THE COURT OF C9MMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v.. NO. '/(, )'71,) ~ /,},-" t CIVIL ACTION - LAW WILLIAM FERRARA, Oefendant. CnMPLA.IHT AND NOW, comes Kimberly D. Kuntz, Plaintiff, by and through her attorneys, Caldwell & Kearns, and respectfully states as follows: 1. Plaintiff, Kimberly D. Kuntz, is an adult individual who resides at 3925 Ridgeland Boulevard, Mechanicsburg, CumLerland County, Pennsylvania 17055. 2. Defendant, William Ferrara, is an adult individual who resides at 6244 Sweetwood Drive, Macungie, Lehigh County, Pennsylvania 18062. 3. Defendant is in the business of breeding, showing and selling 10gs that are of show quality. 4. The facts and circumstances hereafter relate to a champion show female dog named Ch. Biljonblues Bristol and a litter to which Bristol gave birth on January 28, 1996. 5. In January of 1992, Plaintiff purchased Bristol from the Defendant at a price of $700,00. 6. The Defendant agreed to sel.l to Plaintiff a show bitch (Bristol) on two verbal conditions: (a) that Plaintiff show and finish the dog, and (b) that the Defendant choose the sire at the first breeding. 7. Plaintiff agreed to both of Defendant's conditions and picked up Bristol on February 14, 1992. 8. Bristol was subsequently registered with the AKC with Plaintiff as the owner. 9. In June of 1992, Plaintiff asked the Defendant if he would help Plaintiff get Bristol started in the show ring. 10. Defendant told Plaintiff that because he was an AKC judge, he could not groom or handle any dog that he did not co-own. He went on to state that if he did groom or handle a dog that he did not co-own, he would be suspended a~ a judge from the AKC. He went on further that he would therefore have to be a co-owner of Bristol. 11. Defendant agreed that once Bristol was finished, he would take his name off of her as co-owner. 12. Bristol was finished and achieved champion status on September 30, 1994. 13. Defendant did not actually show Bristol at any time prior to her achieving champion status. 14. After Bristol finished, Defendant was asked to take his name off of Bristol, and he rejected, stating that he wanted to wait until after Bristol whelped so that he could show a puppy in bred-by class. 15. Defendant assured Plaintiff that the day Bristol whelped, 4 he would take his name off as co-owner of Bristol. 16. In March of 1995, Plai.ntiff met with the Defendant in an attempt to breed Bristol with one of the Defendant's studs. 17. The parties agreed that the stud fee agreement would allow for compensation in the form of the Defendant being able to choose second picK. of the litter. See attached Stud Service Contract for March, 1995, attached IlS Exhibit "A', 18. This March, 1995 attempt at breeding resulted in a miss, 19. In Novemher of 1995, the parties met a second ti,me in an attempt at breeding. Plaintiff contacted the Defendant around the first week of Novemher and explained that she did not want to give up a puppy in lieu of the stud fee and instead wanted to pay the stud fee in full. The Defendant agreed on a stud fee of $300, payable after the litter was born. 20. On Novemher 20/ 1995, Plaintiff went to the Defendant to breed Bristol with Bagpiper. The oral stud fee agreement then called for a $450 cash fee only, 21. The stud fee was paid in full on Novemher 22/ 1995. The Defendant cashed a $450 check from the Plaintiff that included, in the memo portion of that check, "11/22/95 Stud fee in full'. See Exhibit "B' attached hereto. 22. The breeding resulted in a pregnancy which then resulted in the birth of four (4) puppies on January 28, 1995. 23. After Bristol whelped, resulting in the birth of the 5 puppies, Plaintiff's sons took Bristol's paper and the litter registration to the Defendant for him to sign. The Defendant refused to sign Bristol's papers and the litter registration. The Defendant said he would not sign unless he received second pick of the litter. 24. Each of the four puppies has a fair market value of one thousand dollars ($1000.00) for a total litter value of four thousand dollars ($4,000.00). 25. Plaintiff justifiably relied on Defendants representations that he would remove his name from Bristol after Bristol achieved show status and/or after Bristol whelped. 26. Defendant has refused to sign off as co-owner of Bristol. 27. Defendant refuses to sign the litter registration even though he has been paid in full for the stud service provided by Bagpiper in November of 1995. 28. Defendants failure to sign the regist.ration papers of the litter renders the litter worthless. COUNT I FRAUD 29. Paragraphs 1 through 28 are incorporated herein by reference. 30. Defendant represented to Plaintiff that he needed to be a co-owner of Bristol if he is going to be able to groom or handle Br~.stol. 6 n. Plaintiff BriBtol. 32. Defendant I s fraudulent misrepresentation was intended solely to induce the Plaintiff into allowing Defendant to become a co-owner of Bristol. 33. Plaintiff justifiably relied on defendants representations that he would remove his name from Bristol after Bristol achieved show status and/or after Bristol whelped. 34. The plaintiff has no adequate remedy at law for Count I. WHEREFORE, Plaintiff respectfully requests that this Honorable Court pursuant to its equitable powers require the Defendant to sign off as co. owner of Bristol due to his fraudulent misrepresentation. 'l'his was a fraudulent misrepresentation that induced into allowing the Defendant to become co. owner of 35. Paragraphs reference. 36. Defendant agI'eed to accept a $450 stud fee amount for the breeding of Bristol. 37. Defendant accepted a $450 check from the Plaintiff and cashed the same. 38. Defendant has refused to sign the 1 itter registration even though he has been paid in full for the stud service of COUNT II BREACH OF CONT~ 1 through 34 are incorporated herein by 7 Bagpiper. 39. Defendants failure to sign the registration papers of the litter renders the litter worthless. 40. As a result of Defendant's breach, Plaintiff has suffered damages in the amount of four thousand dollars ($4,000.00) which is the fair market value of the litter if Defendant were to sign the litter registration papers. WHEREFORE, Plaintiff demands judgment against Defendant in the amount of four thousand dollars ($4,000.00) plus interest, costs and attorney fees, or in the alternati.ve Plaintiff demands that Defendant be directed to sign the registration papers plus costs and attorney fees. COUNT II I BREACH OF UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 41. Paragraphs 1 through 40 are incorporated herein by reference. 42. Defendant's failure to sign the litters registration and fraudulent representations constitutes "fraudulent conduct that creates a likelihood of confusion or misunderstanding" such that Plaintiff is entitled to protection under the Unfair Practices and Consumer Protection Law, including treble damages. WHEREFORE, Plaintiff requests judgment be entered in her favor and against Defendant in the amount of $12,000.00. Respectfully submitted, 8 " I '\1 ~.'l, ",! J/ ",j it i II Ii ~ ,<,1 ;,\ ,\ ~;, ~N I i' ili ~:,J , .",' 'I;r j',' i ,I' , " i .~~ '1\ '1'1," i,l{' 1"1 11 ;,'1 -til " " \, /, ,"'I' "I' It, " \ \':1 '11 \.\'\ " ,I 'I , , r ,', " i , , " .,...., IX...... A ; ) IT-'" j ~"',' II"".',' ,,' . ~>-'l"'" ~...,.. , ..,-_..........., --~. "" ""~' , 1 J II: I' ' ,!, ,I' '\I' . I, ;\\ I 11\'>1 ! 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KIMBERL Y D, KUNTZ, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs, WILLIAM FERRARA, 'If. ,)<13 () No, ~-iIM' Defendant CIVIL ACTION - AT LAW AND IN EQU (TY DEff,NDANT'S PRELIMINARY OBJECTION TO PLAINTIFF'S COMPLAIIST Defendant, William Ferrara, by and through his attorneys, Brown, Brown, Solt & Ferrelli, preliminarily objects to plaintiff's complaint on the grounds of improper venue and in support thereot alleges the following: I, Plaintiff's complaint in the instant action alleges causes of action for fraud, breach of contract, and unfair trade practices arising out of an alleged agreement by defendant to sell to plaintiff a show dog, and defendant's alleged subsequent refusal to remove his name from the dog's registration papers, 2, At all times material to the complaint. the defendant resided and still resides in Lehigh County, Pennsylvania, ), The defendant was not personally served in Cumberland County, Pennsylvania, Defendant was served with the complaint by the Sheriff of Lehigh County, Pennsylvania, who was deputized by the Sheriff of Cumberland County, 4, The causes of action alleged in the complaint arose in Lehigh County, 5. All transactions and occurrences out of which the causes of action arose took place in Lehigh County, MOWN, MOWN. 100T. "'''''ITT! . ,',I [, II<.';! ',', ,l! \ ^". . 1.1.'1, HAMil !IJN ~, Tilt ~ t, AIIJNfUWN, PA lH101 ~ 10 ..... .' -, ' . ~~ . .. '.l~ C'': )',) ~~' .t-' , )..~ h: 'l::'i to) ....' . '" :r .1 tI) '" ,', 1'. ~ I ; i'~ ~:' 1.'ll ( ','.~o... .- ::.~ "., v> !.~:i <oJ 0' l,) , , , i I ~ f!:1 ~ ~ ~~ ~ ~i g ~ ~ ~- ... !~ ... .i ~ ~=~II ~ ~ . 'r! ~ ,~ !( ~~ ~;UI ... ~ ~ H ~ ~~ . Q f!:1 B . N . 3 Ul ..... <D F- Ii ;(1 ~ ~ N ~ , ~ ~ <D '" 0-1 ~ ~ Q U . , " , I "