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HomeMy WebLinkAbout02-4877;oMMONWEALTH OF PENNSYLVANIA NOTICE OF APPEAL COURT OF COMMON PLEAS C,~erland County JUDICIAL DISTRICT FROM DISTRICT JUSTICE JUDGMENT - ----..--.---~..,~._ ! NOTICE OF APPEAL Notice is given that the appellant has tiled in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date and in the case mentioned below. NAME OF APPELLANT National ¥laz~anty Insurance Company MAG, DIST. NO, OR NAME OF O,J, 09-3-04 ADDRESS OF APPELLANT CITY STATE ZIP CODE 5201 R Street Lincoln I~ 68504 DATE OF JUDGMENT I IN THE CASE OF IPLAINTIFF) September 12, 2002] Hosnlk, Raymond P. CLAIM NO, CV YEAR LT YEAR C'V-0000304--O2 This block will be signed ONLY when this notation is required under PA. R.C.P.J.P. No. 1008B. This notice of Appeal, when received by the District Justice, will operate as A SUPERSEDEAS to the Judgment for possession in this case. (D FENDA T) Auto-ltax O~ ~e~ani~sburg. ~a~iona_l vs. N.a_~ra~..ty ~nsurance ~;o., mei~weist If appellant was Claimant (see PA R.C.P.~LP. No. 1001(6)) in action before district Justice, he MUST FILE A COMPLAINT within twenty (20) days after filing his NOTICE of APPEAL PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see PA R.C.P.J.P. No. 1001(7) in action before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAEClPE: To Prothonotary Enter rule upon Raymond P. t,f_osnlk .... appellee(s), to file a complaint in this appeal Name of appellee(s) (Common Pleas No.~;3-'~JoP'7"~(_,)10 t'b within twenty (20)days after service pJ..rule or suff~ entry of judgment of non.pros. Signature of appellant or his at~rney or agent-' RULE: To Raymond P. Mosnik , appellee(s) Name of appellee(s) (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty(20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS WILL BE ENTERED AGAINST YOU UPON PRAEClPE. (3) The date of service of this rule if service was by mail is the date of the mailing. Date: L~---'JtL '~ ,Year ~ Signature of Pro{bonotary or Deputy White - Prothonotary Copy Green - Court File Copy Yellow - Appelant's Copy Pink Appellee Copy Gold - D.J. Copy Proth. - 76 PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT {This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing the notice of appeal Check applicable boxes) COMMONWEALTH OF PENNSYLVANIA COUNTY Of AFFIDAVIT: I hereby swear or affirm that I served ~--]a copy of the Notice of Appeal, Common Pleas No. , upon the District Justice designated therein on (date of service) ., year _, [] by personal service [] by (certified) (registered) mail, sender's receipt attached hereto, and upon the appellee, (name _, year ., [] by personal service [] by (certified) (registered) mail, sender's receipt attached hereto. ]and further that I served the Rule to File a Complaint accompanying the above Notice of Appeal upon the appellee(s) to whom the Rule was addressed on mail, sender's receipt attached hereto. _, year _, by personal s~rvice [] by (certified) (registered) SWORN (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS DAY OF _, YEAR ~. My commission expires on $~nature of Affiant COMMONWEALTH OF PENNSv' VANIA COUNTY OF:___CUMBER__LAND 09-3 -04 Address 104 S. SPORTING HILL RD. MECHANICSBURG, PA (717) 761-8230 ATTORNEY DEF PRIVATE 17050 P. K. BROBSON, ESQ. 213 MARKET ST. 3RD FLOOR HARRISBURG, PA 17101 THIS IS TO NOTIFY YOU THAT: Judgment: , _' FOR pLATNTIFF ~ Judgment was entered for: (Name) ~n~'-r~, ~.fnNT) r~ C-~ Judgment was entered against: (Name) I~IA'PTI*I'N'AJ', WAR'RAi~-,i,Y. TN~TTRA~cR CC}. on: in the amount of $ 2:~77.00 ] Defendants are jointly and severally liable. ~ Damages will be assessed on: ID DOCket No.: C~- 0000304- 02 ate Filed: 6/17/02 NOTICE C UDGMENT/TRANSCRIPT PLAfNTIFF: cIVIL CASE NAME and ADDRESS FMOSNIK, RAYMOND p ~ 570 LAKE MEADE DR EAST BERLIN, PA 17316 DEFENDANT: VS. J NAME and ADDRESS FAUTO-MAX OF MECHANICSBIIRG, ET AL. -q 5270 E. TRINDLE RD. MECHANICSBURG, PA 17055 (Date of Judgment) _ (Date & Time) _' r'~,mount of Judgment Judgment Costs Interest on Judgment Attorney Fees Total $__2,300.0~ $ 77.0( $ .0( $_2,377.09 [~ This case dismissed without prejudice. Amount of Judgment Subject to [~] Attachment/Act 5 of 1996 $. L~ Levy is stayed for~.days or [~ generally stayed. ]Objection to levy has been filed and hearing will be held: Post Judgment Credits $ Post Judgment Costs $_ -- Certified Judgment Total $ ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY,Off;JUDG~IE~T/By FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMe~{)~EAS/CiVi~.D~i, Vi~[ON. YOU ~ ' Date ' ~ '":~ '~:' · ~'t~" ' ~ -~'~J ~;-- '. ,DsrcL~ust,ce I cemfy that this is a tr~ a~ ~rmct ~p~~ ~ ~ __Date "... ' '; ~- ' ', ~, District Justice My commission expires first Monday of January, 200~ SEAL AOPC 315-99 COMMONWEALTH OF PENNS.~.,VANIA COUNTY OF; CUt~EI~.~N-I~ ./ Mag Dist NO: 09-3-04 DJ Name: Hon. THOMAS A. PLACEY ~,~e~: 104 S. SPORTING HILL RD. MECHANICSBURG, PA Telephone: (717) 761-8230 17050 ATTORNEy DEF PRIVATE P. K. BROBSON, ESQ. 213 MARKET ST. 3RD FLOOR HARRISBURG, PA 17101 .% THIS IS TO NOTIFY YOU THAT: Judgment: [~ Judgment was entered for: (Name) ~'] Judgment was entered against: (Name) MOef~TR'. in the amount of $ .nn on: ] Defendants are jointly and severally liable. ] Damages will be assessed on: E~ This case dismissed without prejudice. Amount of Judgment Subject to [-~ Attachment/Act 5 of 1996 $ [] Levy is stayed for days or ~ generally stayed. [~] Objection to levy has been filed and hearing will be held: NOTICE C"- 'JUDGMENT/TRANSCRIPT PLAINTIFF: CIVIL CASE NAME and ADDRESS FMOSNIK, RAYMOND p ~ 570 LAKE MEADE DR EAST BERLIN, PA 17316 VS. DEFENDANT: NAME and ADDRESS I-AUTo-MJb{: 02' MECI'~,.~ICSBURG, ET ..a,.~. ~ 5270 E. TRINDLE RD. MECHANICSBURG, PA 17055 L l Docket No.: CV-0000304 -02 Date Filed: 6/17/02 FOR DRW~mANT (Date of Judgment) (Date & Time)_ Amount of Judgment $_ o 00 Judgment Costs $ o 00 Interest on Judgment $_ · 0 £ Attorney Fees $ · 0(~ Total $ · 0 O Post Judgment Credits $ Post Judgment Costs $. Certified Judgment Total $ ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON.pI'E'As, ClVt~. DIVISION. YOU ~ = ~~d~f, J~stice ~ J ~rtify t~ this ~ ~ a~ oorr~ ~ ~~ Date : ' ~['District'Justice~ My commission expires first Monday of January, 2004 SEAL AOPC 3~5-99 COMMONWEALTH OF PENN$"'%VANIA COUNTY OF:__~CUMBRRLANL.. j' 09-3-04 THOMAs A. PLACEY ~d,ess~ 104 S. SPORTING HILL RD. MECHANICSBURG, PA Telephone; (717) 761-8230 ATTORNEy DEF PRIVATE 17050 P. K. BROBSON, ESQ. L 213 MARKET ST. FDocketNo.: 3~D FLOOR F~RRISBURG, PA 17101 IDate Filed: NOTICE (' JUDGMENT/TRANSC PLAINTIFF:"-"CIVIL CASE RIPT NAME and ADDRESS ~MOSNIK, P~YMOND p 570 LAKE MEADE DR EAST BERLIN, PA 17316 DEFENDANT: VS. NAME and ADDRESS ~AUTO-MAX OF MECHANICSBURG, ET AL. 5270 E. TRINDLE RD. MECHANICSBURG, PA 17055 CV'0000304'02/~ 6/17/02 THIS IS TO NOTIFY YOU THAT: Judgment: ~ ' ' _' FOB 'DEFE~TDANT - ~-~ Judgment was entered for: (Name) _ ~T'~.TT. fm-RT.~m - Arrmc)~Ay ~'] Judgment was entered against: (Name) _ t~t~.~N'T~, (Date of Judgment) (Date & Time) _. r Amount of Judgment $ .0_0 Judgment Costs $ .00 Interest on Judgment $_ .00 Attorney Fees $- .00 Total $ .0 £ Post Judgment Credits $ Post Judgment Costs $_ -- Certified Judgment Total $_ in the amount of $ .0o on: ~] Defendants are jointly and severally liable. Damages will be assessed on: [~ This case dismissed without prejudice. Amount of Judgment Subject to ~ Attachment/Act 5 of 1996 $__ ~ Levy is stayed for days or ~] generally stayed. [~ Objection to levy has been flied and hearing will be held: Date: Place: Time: ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUD'~I~i~'.~/'.FiLiNG A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON p.I.-E'~,'biV,L D;Vi~/0N;;.~OU MUST INCLUDE A COPY OF ~E OF JUD~~RiP, FORM ~,~%;~U~.NoT,cE.~¢~EAL. I cedify that this is a tr~ a~ ~~~~ My commission expires first Monday of January. 200~ SEAL AOPC 315-99 R~CEIVEID SEP 1 6 2602 RAYMOND P. MOSNIK, Plaintiff NATIONAL WARRANTY INSURANCE COMPANY, AUTO-MAX OF MECHANICSBURG, NEIL WIEST, Defendants DISTRICT COURT 09-3-04 CV-0304-02 FACTS FROM TRIAL Defendant Auto-Max's salesperson, Defendant Wiest, sold Plaintiff a 1996 GMC K1500 pick up truck on 6 February 2002. The truck was sold with a Smart Choice 2000 limited warranty provided by Defendant National. The warranty specifically provides that: "Ec]ommercial or business use is excluded and will void coverage under this extended service agreement." The title and registration is in the name of Plaintiff. Plaintiff is an outside sales person with nineteen (19) plus years in the auto industry. Armed with this industry knowledge Plaintiff bought the truck and immediately afterward noticed tell tale signs of problems. The truck was taken to a customer of Plaintiff who inspected it in obviously better detail than Plaintiff and possibly Defendant Auto-Max. The end result was a series of warranty covered repairs and exclusions from coverage. The latest inspection revealed some form of engine contamination with a recommendation for a new engine ($3537.50) or alternatively a crankshaft and bearings ($2300.00). Plaintiff also provided an estimate for engine replacement costing $2683.43. Defendant National has notified Plaintiff it is excluding this vehicle from warranty coverage based on its commercial or business use clause. This notice was received in May 2002 after other claims had been covered but not the repairs dealing with contamination. Plaintiff's arrangement with his employer is that they will pay for normal wear and tear maintenance items for his personal vehicle used for work.~ Defendant Wiest was aware of the warranty exclusion but not aware of Plaintiff's intended use and assumed it was personal use. ~ This has subsequently changed in that Plaintiff now has a company provided vehicle to use at work in his outside sales calls. DISCUSSION The issue presented deals with the warranty between Plaintiff and Defendant National. The claims by Plaintiff against the dealer and its salesperson are meritless and the judgments will be in their favor? Defendant National asserts that the cancellation of warranty is effective because Plaintiff utilized the vehicle for "commercial or business" purposes. Applying a liberal interpretation to this clause anyone who utilizes a warrantied vehicle for work is potentially excluded at the discretion of Defendant. No case law was referenced or found indicating such a broad standard for commercial or business use. Is this standard the accounting basis used by the IRS or the reimbursement between Plaintiff and employer? The warranty is not clear and this ambiguity is held against the drafter, Defendant National. In applying these facts to contract law it will be found that Plaintiff's use was not commercial or business use and the warranty coverage in the lesser estimated repair amount will be applied. This is based on the finding that Plaintiff used the truck to go to and from the workplace, which happens to be at various locations. The vehicle was not converted to a specific business use. It was chosen for subjective personal reasons, as it is not a practical business vehicle in Plaintiff's line of work. It was not shown to be subjected to commercial uses such as hauling or towing of business goods. In absence of contract terms or a specific showing that the truck was used to make money solely by its use, simply utilizing it to go to and from workplaces is not excluded from coverage. .Judgment is in favor of Plaintiff against Defendant National in the amount of $2300.00 together with the costs of this action. Judgment in the remaining Defendants is in their favor. The parties have previously been advised of their appeal rights and the original exhibits have been returned to the presenting party. 12 SEP 02 Date By the Court, Thomas A ey D.]. 2 A cross claim between the Defendants as to why such a warranty was given considering the state of the truck and the eligibility of the buyer is not at issue and will not be addressed. PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (10)~ DAYS AFTER tiling the notice o! appeal. Check applicable boxes) COMMONWEALTH OF PENNSYLVANIA COUNTY OF ; ss AFFIDAVIT: I hereby swear or'affirm that I served [] a copy of the Notice of Appeal, Common Pleas No. 02--4877 , upon the District Justice designated therein on (date of service) October: 8 ' ., year 2002 , [] by p~'sonal service [] by ~c. mtifi~l} i(registered) mail, sender's " Raymond P. Mosn-lk ,'on receipt attached hereto, and upon the appellee, (name October 8 , year 2002 , [] by personal service [] by ~ (registered) mail, sender's receipt attached hereto. and further that I served the Rule to File a Complaint accompanying the above Notice o! Appeal upon the appell,ee(s) to whom the Rule was addressed on October' 8 , year ~)~.~, [] by personal s~rvice [] by {.certified) (registered) mail, sender's receipt attached hereto. SWORN (AFFIRMED) AND ~SCRIBED BEFORE ME T~tle of official Signature of Affiant My commission expires on .,year COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS Cmaberland County JUDICIAL DISTRICT NOTICE OFAPPEAL FROM DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. -~ NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date and in the case mentioned below. NAME OF APPELLANT I MAG. DIST. NO. OR NAME OF D.J. NaEtona[ ~arraa~y ~n~urance Company 09-3-04 ADDRESS OF APPELLANT CITY STATE ZIP COOL 5201 R Stree~ ~-~coln NE IN THE CASE OF (PLAINTIFF) DATE OF JUDGMENT September 12, 2002 68504 CV YEAR CV-000030~--02 __ SIGNATURE OF APPELLANT OR HIS A~,...~.~ORNEy OR AGENT This block will be signed ONLY when this notation is required under PA. R.C.P.J.P. No. 1008B. This notice of Appeal, when received by the District Justice, will operate as A SUPERSEDEAS to the Judgment for possession in this case. S~nature of Prothonotary If appellant was Claimant (see PA R.C.P.J.p. No. 1001(6)) in actiO~ befo~;EL~fict Justice, he MUST FILE A COMPLAINT within twenty (20) days after filing his NOTICE of APPEAL. PRAEClPE 'to ENTER RULE TO FIL~~.E--~)~iL[5' "-"--' (This section of form to be used ONLY when appell~t~t W~ bEFENI~A'Nt"-~'t~¢ pA R~n ~o'n'~'e'Tore District Justice. IF NOT USED, detach from copy of notice of appeal to be served ~pon appellee. ' ~' . ':,3.~ ~ PRAECIPE: To Prothonotary Enter rule upon Raymond P, Ymea:[k Name ofal~.~ee~- ,.--~' a@p¢llee(s), to file a complaint in this appeal (Common Pleas No. ~L) within twenty (20)days after service ¢.~e or surer entry of judgment of nonj)ros. ~ ature of appellant or his a~rney or agent RULE: To Ra]moad P. Hosn:lk Name of apcellee(s) , appellee(s) (1) (2) (3) Date: {~) ¢,...'~ ~ r i White - Prothonotary Copy Green - Court File Copy Yellow - Appelant's Copy Pink Appellee Copy Gold - D.J. Copy You are notifi.,ed fl.gat'a rule is hereby entered upon you to file a complaint in this appeal within twenty(20) days after the J.at~..~f ~,ervice of th s rule upon you by personal service or by cart f ed or rag stered mail. If you~l~ not file a complaint wi~iri this time, a JUDGMENT OF NON PROS WILL BE ENTERED AGAINST YOU The ~e oi servi~eOf ~is rule if:service was by ma~l is lhe date of fhe mailing. ' '--~' , Yea~'~ ~ _ - ~ ~'% . ~ Signature of Pr°{hon. otafy or Deputy Proth. - 76 r~. Postage ru Certified Fee I11 Return Receipt Fee ~'~ (Endorsement Required) Restricted D~ivei7 Fee (Endorsement Required) ~'ZR:-/~'~:~'"'"'-570 .................................................................. Lake Neade Dr-ire I ©FF SE Return Receipt Fee ! ~ Restricted Deflvery Fee; (Endomement R~u[~ ~ Sent TO . , District Justice ~8 Placey I ~ia~;'i'~F~ :~ ......................................................................... ~ [ or PO Box No. 104 S Sportt~ Hill Road [ ~~m ~'~7~-i~ ...................................................................