HomeMy WebLinkAbout00-00267
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HAROLD Z. SWIDLER
Plaintiff
IN THE COURT OF COMMON pLBAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
NO.OO - 267
Civil Tera
EARL WYAND,
Defendant
NOTICE
You have been sued in court. If you wish to defend aqainst
the claim set forth in the followinq paqes, you must take action
within twenty (20) days after this complaint and notice are
served, by enterinq a written appearance personally or by
attorney and filinq in writinq with the court your defenses or
objections to the elaims set forth aqainst you. You are warned
that if you fail to do so the case may proeeed without you and a
judgment may be entered aqainst you by the court without further
notiee 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 riqhts ilIIportant to you.
yOU SHOULD TAQ THIS p~ER TO YOUR LAWYER AT ONCE. IF YOU
DO NO'!' HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHClNE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Court Administrator
Fourth Floor
Cumberland County Courthouse
Carlisle, Pennsylvania 17013
Telephone (717) 240-6200
AMERICANS ~TH DISABILITIES ACT OF 1990
The Court of Common Pleas of Cumberland County is required
by law to eomply with the Americans with Disabilities Act of
1990. For Info~tion about aeeessible facilities and reasonable
accommodations available to d1sabled ind1viduals havinq business
before the Court, please eontact our office. All arranqem.ents
must be made at least 72 hours prior to any he~inq or business
before the Court. You must attend the sc edule conference or
hearinq.
ne G. 0 son, Esquire
3 South Second Street
Chambersburq, PA 17201
717-264-0445
HAROLl:l Z. SWIDLER
Plaintiff
IN Tn COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
NO.OO - 267 C;i.vil Term.
EARL wYAm>,
Defendant
PREL:tMINARY OBJECTIONS TO COMPtAINT
Am> NOW COMES, the Defendant, Earl Wyand, by his attorney,
Tyrone G. Johnson, Esquire, and file the following Preliminary
Objections to the Complaint in the above captioned matter,
pursuant to Pa.R.Civ.p. l028(a):
To TMPROPF.R RF.RVICE
Pa.R.Civ.P. l028 (a) (l)
1. Defendant is Earl Wyand of Box 169-J, Marlowe-Berkeley,
West Virginia, 25419.
2. Plaintiff has, by letter dated July 24, 2000, a copy of
which is attached hereto, made a part hereof and marked as
Exhibit ~A", acknowledged receipt of Defendant's letter dated
July 14, 2000, which letter requested a copy of the Affidavit of
Service relative to Plaintiff's counsel's allegation of having
had the Defendant served with a Writ Of Summons by a Private
Investigator. A copy of the above referenced Affidavit Of
Service is also attached hereto, made a part hereof and marked as
Exhibit ~B".
3. Despite these ascertains, Defendant asserts herein that
he was never served a copy of the Praecipe For Writ Of Summons on
May 26, 2000, nor at any other time by a Private Investigator or
anyone else.
4. Despite Plaintiff's Attorney's awareness of Defendant's
assertions in Paragraph No.2 above, and despite Plaintiff's
Attorney's awareness of Defendant's whereabouts being known,
Plaintiff's Attorney has not personally served Defendant with a
copy of the Praecipe For Writ Of Summons as original process
pursuant to Pa.R.C.P. 400, 401, 403, and 404, nor did Plaintiff's
Attorney send the Defendant a copy of said document as an
attachment to his July 24, 2000, letter.
WHEREFORE, Defendant respectfully requests this Honorable
Court to dismiss Plaintiff's Complaint for lack of proper service
of process on him, and to award him costs of suit, including
attorney's fees for defense of this action pursuant to Title
42 Pa.C.S.A. Section 2503 (9).
II. OF.MURRER
Pa.R.Civ.P. l028 (a) (4)
5. Plaintiff claims in Paragraph No. 7 of the Complaint
that the Defendant had knowledge of his personal property being
located at the premises at the time the lease was executed.
6. Plaintiff claims in Paragraph No. 8 of the Complaint
that his efforts to sell the aforementioned property to the
Defendant were unsuccessful.
7. By way of admission, Plaintiff has asserted that the
Defendant did not have dominion or control of said personal
property which the Plaintiff had for some time abandoned.
Plaintiff has therefore failed to demonstrate in his Complaint
the fundamental principal for Conversion by a showing that the
Defendant in some way interfered with his dominion or control of
said property, Cemnil v. u.S., 402 F.2d l.68 (CA3, 1968); and he
has failed to demonstrate in his Complaint that the Defendant
actually appropriated his property other than an unsupported self
serving statement in Paragraph No. lO that the property was taken
away by the Defendant and his accomplices, see Baker v. RilngoR,
229 Pa. Super 333, (1974).
8. The Plaintiff maintains that the Defendant refused to
surrender the subject property upon demand for it's return;
however, he had not asserted that the defendant was a bailee and
has not demonstrated how or when the Defendant was ever in
possession of property that he maintains was left by him in a
building never occupied by the Defendant; nor had he provided
proof of a proper demand.
9. The Plaintiff in Paragraph No. 9 of the Complaint by
admission states that he assumed repossession of the leased
premises on or before November 30, 1997, which repossession
according to Plaintiff's Complaint ih Paragraph No.4 would have
been before the expiration of the leased term. Plaintiff
attempts to plead or suggest that as a result of the lease
recission that the Defendant was required to return property to
him which the Defendant was neither in pQssession of or
contracted for. Should the Plaintiff be suggesting that the
Conversion rests upon the Defendant's failure to
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return goods to the Plaintiff after recission of the contract
then the Complaint does not state a claim and fails for want of a
contract for the sale of property between the parties.
lO. In an action for Conversion those persons who can be
held liable include a bailee, a person who sells property without
a right to do so, and a person who conveys imperfect title; and,
the defendant is neither a bailee nor has the Complaint
demonstrated that the Defendant sold or conveyed the property or
that he is presently in possession thereof; only an opinion that
the Defendant removed the property from the premises.
WBERBFORB, Defendant respectfully requests this Honorable
Court to grant this demurrer and to dismiss Plaintiff's Complaint
for failure to state a cause of action against him, together with
costs of suit, including attorney's fees for defense of this
action pursuant to 42 Pa.C.S.A. Section 2503 (9).
II. INSUFFICIRNT SPRCTFTCTTY OF PT~AnTNG
Pa.R.Civ.P. 1028 (a) (3)
ll. The general rule in the measure of damages is the value
of the goods at the time of conversion or the highest value at
any time between the conversion and the trial; therefore, the
Defendant is entitled to a more specific pleading of the
Complaint informing him of the alleged basis of Plaintiff's claim
as the complaint does not provide enough information to enable
Defendant to make a clear determination as to exactly what the
ascertained quantity and quality of each item of property is in
issue or the value and age of each item.
12. The Plaintiff is, pursuant to Pa.R.C.P. Rule 1019(h)
since the claim is based in part upon a writing, to have attached
to the pleading a copy of the writing or the material part
thereof. The Defendant does not have a copy of the Lease
referenced in the Complaint and he is entitled to one.
13. In Paragraph No. 10 of Plaintiff's Complaint, Plaintiff
claims that Defendant and his accomplices removed and carried
away his personal property. Plaintiff does not state with
specificity as to how or when he alleges this occurred, nor does
he identify the alleged accomplices or whether there was any
police involvement. Defendant is entitled to a more specific
pleading of the Complaint informing him of the alleged basis of
Plaintiff's averments to this claim.
14. In Paragraph No.9 of Plaintiff's Complaint, Plaintiff
claims that on or about November 30, 1997, that the lease was
null and void; however, he does not state whether this is the
same date that his building keys were returned to him or whether
he actually took repossession before that date. Defendant is
entitled to a more specific pleading of the Complaint informing
him of the alleged basis of Plaintiff's averments to this claim.
15. In Paragraph No.8 of Plaintiff's Complaint, Plaintiff
claims that numerous unsuccessful discussions took place between
the parties regarding the purchase of the property; however, he
does not state exactly what materials were the subject of the
discussions. Defendant is entitled to a more specific pleading
of the Complaint informing him of the alleged basis of
Plaintiff's averments to this claim.
WHEREFORE, The Defendant demand that the Complaint be
dismissed, and that he be awarded costs, including attorney's
fees for defense of this action pursuant to 42 Pa.C.S.A. Section
2503 (9).
d,
ne G. John , squire
orney for Defendant
30 South Second Street
Chambersburg, PA 17201
(717)264-0445
VERl:F:tCATl:ON
We verify that the statements made in this document are true
and correct in part according to my personal knowledge, and as to
the remainder, upon information and belief. I understand that
false statements herein are made subject to the penalties of Pa.
C.S.A. Section 4904, relating to unsworn falsifications to
authorities.
Date:
Earl Wyand
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CE~T:II'ICATE 01' SE~VICE
I , Tyrone G. Johnson, Esquire, certify that I served a true
and correct copy of Defendant's Preliminary Objections to
Complaint by first class mail, postage prepaid on August 25,
2000, to:
Bruce J. Warshawsky, Esquire
Law Office of Berstein & Warshawsky
1820 Linglestown Road
Harrisburg, PA l7l10
(Attorney For Plaintiff)
Ty ne G. Johnso , Esquire
Attorney for Defendant
30 S. Second Street
Chambersburg, PA l7201
(717) 264-0445
VE~II'ICATION
I, Tyrone G. Johnson, Esquire, hereby state that I am the
attorney for the Defendant in this action, and that the
statements made in the foregoing Complaint are true and correct
to the best of my personal knowledge, and as to the remainder,
upon information and belief and that the Defendant is presently
unavailable to sign this verification and that I am authorized to
do so. The undersigned understands that false statements herein
are made subject to the penalties of Pa. C.S.A. Section 4904,
relating to unsworn falsifications to authorities.
Date: t!!!> - ~ - 00
Tone G. Johnson, Esquire
..
THE ~W OFFICE OF
JBlERNSTlE][N & W ARSlHIA WSKY
MILTON BERNSTEIN, ESQUIRE E.maiJ: mill b@prodigy.net
BRUC~ J. WARSHAWSKY, ESQUIRE E-mail:-bruce_w@prodigy.net
DIANE K. McKAY, PARALEGAULAW CLERK E-mail: dianernckay@pradigy.net
1820 linglestown Road
Harrisburg, Pennsylvania 17110
Phone (7171232-8500
Fax (717 232.8035
July 24, 2000
Mr. Earl Wyand
t/o Funeral Transport Services
Rt 1, Box 169]R
Marlowe, WV 25419
Re: Swidler v. Wyand
Dear Mr. Wyand:
Thank you for your letter dated July 14, 2000. I enclose herewith a copy of the Affidavit of Service you
requested. Although unimportant to the underlying substance of the lawsuit, you certainly have the
right to assert that you were never properly served. I will again strongly suggest that you engage counsel
to represent you.
We are proceeding with the lawsuit and I am also enclosing herewith a copy of the Complaint which
has been filed against you in the Court of Common Pleas of Cumberland County, Pennsylvania. You
have twenty (20) days to respond.
Very truly yours,
>
BERNSTEIN & WARSHAWSKY
BJW:dlz
Enclosure
cc: Mr. tIarold Swidler
EXIllBIT "A"
Legal ad";'"" to prof"sio""" '''''' the Imsinei' community; aad to iadividuals for estat" and finandal p14nni"D
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COMMON WEALTH OF PENNSYLVANIA
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AFFIDAVIT OF SERVICE
COUNTY OF ALLEGHENY
IN RE: ,J,UIO,{CI! ". (J./y"'AAltJ
/JO. O<CJoo - J?tf 7 (('11./1/)
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Before me, the undersigned authority, a Notary Public, in and for said Commonwealth and
County, personally appeared Robert E. Bendig Private Detective, County of Allegheny Commonwealth of
Pennsylvania, Lie. # 346, according to law, deposes and says that on the..:? G?j day of /-1/1 y
. Wl!lr of Su,<.t;-to,v!
doo('> at S": 3 Cl o'c1ock.a.mJp.m., true and correct copies of the Pcl;l;v" <<"d Noti"" of I killing
filed on the above -- named case were served upon H,<'. C /1,< t. Go Y /f "-'0 at the
/':VNc;j/tf( rt'!I'I-NI/-ldrtr ,f'e-eu,C6'J t<'c. I Au);
address of: /If. 9 .::n<'. M/ltf~(llue. to lI'. ';?s--!/9'
Service was effected by the following:
H~ct personally served.
[] Adult fam ily member with whom Subject resides.
Name and Relationship
[] Adult in charge of Subject's residence who refused to give name or relationship.
[] Manager/clerk of place of lodging in which Subject resides. Name
[] Agent or person in charge of Subject's office or usual place of business. Name
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[] Other:
Sworn to and subscribed before me this
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IN THE COURT OF COJ'vlMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
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HAROLD Z. SWIDLER,
Plaintiff
NO. 2000-267 Civil Term
EARL WYAND,
Defendant
JURY TRIAL DEMANDED
1. Motion to Strike pursuant to PaRCiv.P. 1028(a) (2) for failure to
conform to PaRCiv.P. 1026.
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PRELIMINARY OBJECTIONS TO PRELIMINARY OBJECTIONS
AND NOW COMES, Harold Swidler by and through his attorneys Bernstein &
Warshawsky to file the following Preliminary Objections:
1. The Writ of Summons in the instant matter was filed on January 13, 2000, which
Plaintiff attempted to serve by certified mail twice but which went unclaimed by
Defendant (see attached Exhibit "A" and "B", the certified mail envelopes).
2. Plaintiff reissued the Writ of Summons on March 16, 2000 and arranged for
personal service on Defendant. The reissued Writ was served on Defendant on
May 26, 2000, and the certificate of service was filed of record on June 22, 2000.
3. The Complaint was filed and served upon Defendant on July 25, 2000, by first
class mail at the address where personal service was effected.
4. A Ten Day Notice, filed contemporaneously herewith and a copy of which is
attached hereto as Exhibit "C", was mailed to Defendant by first class mail on
August 18, 2000.
5. Preliminary Objections were filed in this matter on August 25, 2000, thirty one
(31) days after the filing and serving of the Complaint and seven (7) days after the
Ten Day Notice was served.
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6. Defendant has not identified any justifiable reasons for the delay in filing his
Preliminary Objections.
7. Although Plaintiff is not required to demonstrate prejudice, absent Defendant's
lack of justification for delay, Plaintiff has been prejudiced to the following
manner:
A. Defendant admits receiving Plaintiff's letter dated July 24, 2000
accompanying the Complaint (see Paragraph 2 of the Defendant's
Preliminary Objections).
B. Defendant's Preliminary Objections lack merit in that the facts of record
evidence proper service in accordance with the applicable Pennsylvania
Rules of Civil Procedure; (2) the facts of record do not support
Defendant's objection in the nature of demurrer, as the Complaint clearly
establishes a cause of action in conversion; and (3) Defendant seeks to
require Plaintiff to plead facts in the form of a more specific pleading
which facts are properly developed during discovery.
C. Determination of Defendant's Preliminary Objections will serve to delay
this matter unnecessarily, as the cause of action arose on January 17, 1998
when Plaintiff discovered the items missing. Due to Defendant's
obfuscation in this lawsuit thus far, more than 9 months have elapsed since
the Writ of Summons was filed.
D. Plaintiff had prepared and was ready to file a Default Judgment in this case
on August 29, 2000. Only the diligence of Plaintiff's counsel in checking
the docket prior to the filing of the Default Judgment (Plaintiff's counsel
had not, as of August 28, 2000, received the Preliminary Objections filed
August 25,2000) prevented the improper filing of the Default Judgment.
8. Pennsylvania Rules of Civil Procedure, specifically Pa R.Civ. P. 1026 and
Pa.R.Civ.P. 237.2 support Plaintiff's request that this Honorable Court strike the
Defendant's Preliminary Objections.
WHEREFORE, the Plaintiff respectfully requests that the Court strike the
Defendant's Preliminary Objections in their entirety due to their untimely filing and Plaintiff in
costs, attorneys fees and other just and appropriate relief
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II. Motion to Strike vursuant to Pa.R.Civ.P. 1028(a) (2) for failure to
conform to Pa.R.Civ.P. 1024.
9. Defendant's Preliminary Objection claiming improper service raises an issue of
fact.
10. Defendant's Preliminary Objections were verified by Defendant's counsel and not
by Defendant.
II. No facts are of record to suggest that Defendant's counsel properly executed the
Verification pursuant to Pa.R.Civ.P. 1024(c). Given the serious nature of
Defendant's allegations (that he was not served with the Writ of Summons),
notwithstanding his acknowledgment of receipt ofthe Complaint (by the letter
accompanying it dated July 24, 2000), it is proper for this Honorable Court to
strike the Preliminary Objection alleging improper service.
12. Furthermore, because Pa.R.Civ.P. 1024 requires that the Verification be signed by
a party and may only be signed by a non-party if". .. The Verification of none [of
the parties] can be obtained within the time allowed for filing the Pleading. . .",
the Court may conclude that no such justification exists and that further no
justification for the delay in filing the Preliminary Objections exist and that
striking them in their entirely is proper.
WHEREFORE, the Plaintiff respectfully requests this Honorable Court strike the
Defendant's Preliminary Objections, in whole or in part, and award Plaintiff his costs, attorneys
fees and other just and appropriate relief
D&, qfy~ 0
Law Office of Bernstein & Warshawsky
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Supreme Court Id No. 58799
1820 Linglestown Road
Harrisburg, P A 1711 0
(717) 232-8500
Attorney for Plaintiff
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
HAROLD Z. SWIDLER,
Plaintiff
v.
EARL WYAND,
Defendant
To: Mr. Earl W. Wyand
c/o Funeral Transport Service
Route I, Box 169JR
Marlowe, WV 25419
Date of Notice: August 18,2000
No. 2000-267 Civil Term
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
IMPORTANT NOTICE
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YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN
APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE
COURT YOUR DEFENSES OR OBJECTIONS TO TI-IE CLAIMS SET FORTI-] AGAINST YOU.
UNLESS YOU ACT WITHIN TEN DAYS FROM TI-IE DATE OF TI-lIS NOTICE, A
JUDGMENT MA Y BE ENTERED AGAINST YOU WITHOUT A l-IEARING AND YOU MAY
LOSE YOUR RIGHT TO SUE THE DEFENDANT AND THEREBY LOSE PROPERTY OR
OTlIER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT
ONCE. IF YOU DO NOT I-lAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR
TELEPHONE TIlE FOLLOWING OfFICE TO FIND OUT WHERE YOU CAN GET LEGAL
HELP:
Cumberland County Lawyer Referral Service
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
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BERNSTEIN & W ARSHA WSKY
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1820 Linglestown Road
Harrisburg, P A 17110
(717) 232-8500
Attorney for Plaintiff
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
HAROLD Z. SWIDLER,
Plaintiff
No. 2000-267 Civil Term
v.
CIVIL ACTION - LAW
EARL WYAND,
Defendant
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I, Bruce J. Warshawsky do hereby certify that I served a true and correct copy of the
foregoing Imnortant 10 Day Notice upon the following below-named individual(s) by depositing
the same in the U.S. Mail, postage pre-paid, this 18th day of August, 2000.
Mr. Earl W. Wyand
c/o Funeral Transport Services
Route I, Box I69JR
Marlowe, WV 25419
DEFENDANT
BERNSTEIN & WARSHAWSKY:
ruce J. arshawsky
1820 Linglestown Road
Harrisburg,PA 17110
(717) 232-8500
Attorney for Plaintiff
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
HAROLD Z. SWIDLER,
Plaintiff
NO. 2000-267 Civil Term
v.
CIVIL ACTION - LAW
EARL WYAND,
Defendant
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I, Bruce J. Warshawsky, Esquire, do hereby certify that I served a true and correct copy of
the foregoing Preliminary Objections to Preliminary Objections upon the following below-named
individual(s) by depositing the same in the U.S. Mail, postage pre-paid, this (~T'Jday of
.Iefl~ 2000.
Tyrone G. Johnson, Esquire
30 South Second Street
Chambersburg, P A 17201
COUNSEL FOR DEFENDANT
~ce J. arshaws squire
Law Office of Bemstein & Warshawsky
1820 Linglestown Road
Harrisburg, P A 17110
(717) 232-8500
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
HAROLD Z. SWIDLER,
Plaintiff
No. 2000-267 Civil Term
v.
CIVIL ACTION - LAW
EARL WYAND,
Defendant
JURY TRIAL DEMANDED
NOTICE TO DEFEND
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.
Office of the Court Administrator
4thFloor, Cumberland County Courthouse
1 Courthouse Square
Carlisle, Pennsylvania 17103
(717) 240-6200
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IN THE COURT OF CO:MMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
HAROLD Z. SWIDLER,
Plaintiff
NO. 2000-267 Civil Term
v.
CIVIL ACTION - LAW
EARL WYAND,
Defendant
JURY TRIAL DEMANDED
AVISO
USTED HA smo DEMANDADO / A EN CORTE. Si usted desea defenderse de las demandas
que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos
veinte (20) clias despues de la notificacion de esta Demanda y Aviso radicando personalmente 0 por
medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de,
y objecciones a, las demandas presentadas aqui en contra suya. Se Ie advierte de que si usted falla de
tomar accion .como se describe anteriormente, el caso puede pro ceder sin usted y un fallo por
cualquier suma de dinero reclamada en la demanda 0 cualquier otra reclamacion 0 remedio
solicitado par el demandante puede ser clictado en contra suya por la Corte sin mas aviso adicional.
Usted puede perder dinero 0 propiedad u otros derechos importantes para usted.
USTED DEBE LLEV AR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI
USTED NO TIENE UN ABOGADO 0 NO PUEDE P AGARLE A UNO, LLAME 0 VA Y A A
LA SIG UlENTE OF1ClAN PARA A VERlG UAR DONDE PUEDE ENCONTRAR
AS1STENC1A LEGAL.
Office of the Court Administrator
4thFloor, Cumberland County Courthouse
1 Courthouse Square
Carlisle, Pennsylvania 17103
(717) 240-6200
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
HAROLD Z. SWIDLER,
Plaintiff
NO. 2000-267 Civil Term
v.
CIVIL ACTION - LAW
EARL WYAND,
Defendant
JURY TRIAL DEMANDED
COMPLAINT
Now, the Plaintiff, Harold Z. Swidler ("Swidler"), by and through his attorneys, the Law
Office of Bernstein & Warshawsky, files the following action against the Defendant, Earl Wyand
("Wyand") and in support thereof avers:
I. Swidler is an individual residing at 315 Washington Lane, Carlisle, Pennsylvania.
2. Wyand is an adult individual with a business address of c/o Funeral Transport
Services, Rt I, Box 169 JR Marlowe, West Virginia 25419.
3. At all times relevant hereto, Swidler was an owner of the premises located at 710
E. King Street, Shippensburg, Cumberland County, Pennsylvania, with a 12,550
sq. ft. commercial building erected thereon (the "Premises").
4. On or about October II, 1997, Swidler and Wyand entered into a Lease
Agreement ("Lease"), whereby Wyand would lease from Swidler the Premises for
a period often (10) years.
5. Prior to executing the Lease, Swidler had stored at the Premises various items
used for the maintenance and to be used for improvements to the Premises
including the following items: air conditioners, aluminum glass double doors,
riding lawnmower, plywood, rubber roofing pads, drywall sheets, building
lumber, a ten unit electrical system service, all of which had a collective value of
$44,700.00 ("Swidler's Personal Property").
6. In accordance with the Lease, Wyand was required to perform all repairs and
improvements for his use and occupancy of the Premises.
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7. Wyand had knowledge that Swidler's Personal Property was located at the
Premises at the time the Lease was executed.
8. Swidler and Wyand had numerous discussions about Wyand's purchase of all or
some of Swidler' s Personal Property for use at the Premises, but no agreement
was reached with regard to such purchase.
9. Because Wyand could not secure governmental approval for his intended use of
the Premises, Swidler and Wyand agreed, on or about November 30, 1997, that
the Lease would be considered null and void.
10. On or about January 17, 1998, Swidler discovered that Swidler's Personal
Property was removed from the Prenllses. Swidler's Personal Property was
removed and carried away by Wyand and/or his accomplices, which items were
the property of Swidler, and who is entitled to possession thereof.
11. Swidler has demanded from Wyand the return of Swidler' s Personal Property
and/or their value, but Wyand has failed and refused to do so.
12. Wyand, by his actions, has converted Swidler's Personal Property to his own use
for the detriment ofSwidler in the amount of $44,700.00.
WHEREFORE, Plaintiff, Harold Z. Swidler respectively requests that this Honorable
Court grant him damages in the amount of $44,700.00, costs, other expenses and attorneys fees
as the Court deems just and appropriate.
Date: /1J-1 /00
Respectfully Submitted:
Law Office of Bernstein & Warshawsky
~
Supreme Court Id No. 58799
1820 Linglestown Road
Harrisburg, P A 1711 0
(717) 232-8500
Attorney for Plaintiff
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
HAROLD Z. SWIDLER,
Plaintiff
NO. 2000-267 Civil Term
v.
CIVIL ACTION - LAW
EARL WYAND,
Defendant
JURY TRIAL DEMANDED
VERIFICA TION
I, Harold Z. Swidler, verify that the statements made in the foregoing Complaint are true and correct
to the best of my knowledge, information and belief. I understand that false statements are made
subject to the penalties of 18 Pa.C.S.g 4904 relating to unsworn falsification to authorities.
Date: 7/Jl.(f'UJoo
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
HAROLD Z. SWIDLER,
Plaintiff
NO. 2000-267 Civil Term
v.
CIVIL ACTION - LAW
EARL WYAND,
Defendant
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I, Bruce J. Warshawsky, Esquire, do hereby certify that I served a true and correct copy of
the foregoing Comolaint upon the following below-named indivicral(s) by depositing the
same in the U.S. Mail, postage pre-paid, tbi~~ of V~2000.
Mr. Earl Wyand
c/o Funeral Transport Services
Rt 1, Box 169JR
Marlowe, WV 25419
DEFENDANT
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Bruce 1. War wsky, Esquire
Law Office of Bernstein & Warshawsky
1820 Linglestown Road
Harrisburg, P A 17110
(717) 232-8500
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COMMON WEALTH OF PENNSYLVANIA )
)SS:
COUNTY OF ALLEGHENY )
IN RE: gt.U'/..JAcl! 1/. WYIf/AN.(J
,ua, 0/.(10 0 'C .i!u 7 (("I(/;/.)
Before me, the undersigned authority, a Notary Public, in and for said Commonwealth and
County, personally appeared RobertE. Bendig Private Detective, County of Allegheny Commonwealth of
Pennsylvania, Lie. # 346, according to law, deposes and says that on the ~ G -?f day of 1-1 A y'
Wl!lr 0.# Sw",,,",o,,,s.
&-(J&O at 5": 3 0 o'clock-a.mJp.m., true and correct copies of the P"t;t;Vll g..ud :tJ6ti...,.., vfII"a.l~5
filed on the above-named case were served upon H/ C:At!t. WYApU~ at the
r-VNc."'''''{ 7"l"tWJ'/-'t112r J'au/ceJ A'c. / At7X
address of: /1ft9 ::r~. M/llfto<ue. tUIl'.. ,;?~""I'/9'
servp.-was effected by the following:
[..(Su~ect personally served.
[] Adult family member with whom Subject resides.
Name and Relationship
[] Adult in charge of Subject's residence who refused to give name or relationship.
[] Manager/clerk of place oflodging in which Subject resides. Name
[] Agent or person in charge of Subject's office or usual place of business. Name
[] Other:
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Robert E. Bendi, .. #311
Sworn to and subscribed before me this
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IN THE COURT OF COMMON PLEAS
CUJ\1BERLAND COUNTY, PENNSYL VANIA
HAROLD Z. SWIDLER,
Plaintiff
No. 2000-267 Civil Term
v.
CIVIL ACTION - LAW
EARL WYAND,
Defendant
JURY TRIAL DEMANDED
To: Mr. Earl W. Wyand
c/o Funeral Transport Service
Route 1, Box 169JR
Marlowe, WV 25419
Date of Notice: August 18, 2000
IMPORTANT NOTICE
YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN
APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE
COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOu.
UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A
JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY
LOSE YOUR RIGHT TO SUE THE DEFENDANT AND THEREBY LOSE PROPERTY OR
OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT
ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR
TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL
HELP:
Cumberland County Lawyer Referral Service
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
STEIN & WARSHAWSKY
I
Bruce J. ar awsky
1820 Linglestown Ro
Harrisburg, P A 17110
(717) 232-8500
Attorney for Plaintiff
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
HAROLD Z. SWIDLER,
Plaintiff
No. 2000-267 Civil Term
v.
CIVIL ACTION - LAW
EARL WYAND,
Defendant
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I, Bruce J. Warshawsky do hereby certifY that I served a true and correct copy of the
foregoing Important 10 Dav Notice upon the following below-named individual(s) by depositing
the same in the U.S. Mail, postage pre-paid, this 18th day of August, 2000.
Mr. Earl W. Wyand
c/o Funeral Transport Services
Route I, Box 169JR
Marlowe, WV 25419
DEFENDANT
BERNSTEIN & WARSHAWSKY:
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
HAROLD Z. SWIDLER,
Plaintiff
NO. 2000-267 Civil Term
v.
CIVIL ACTION - LAW
EARL WYAND,
Defendant
JURY TRIAL DEMANDED
PRAECIPE TO REISSUE WRIT OF SUMMONS
To the Prothonotary:
. Kindly reissue the original writ of summons in the above-captioned action.
Law Office of Bernstein & Warshawsky
Date: March 13, 2000
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Bruce J. War awsky
Supreme Court Id No. 58799
1820 Linglestown Road
Harrisburg, P A 17110
(717) 232-8500
Attorney for Plaintiff
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
HAROLD Z. SWIDLER,
Plaintiff
NO. .1 tJVV. ;Lt.. 7 ~ /.4---
v.
CIVIL ACTION - LAW
EARL WYAND,
Defendant
JURY TRIAL DEMANDED
PRAECIPE FOR WRIT OF SUMMONS
To the Prothonotary:
Kindly issue a writ of summons in the above-captioned action.
Date: January 13, 2000
ruce 1. shaws
Supreme Court Id
2854 N. 2nd Street
Harrisburg,PA 17110-1206
(717) 232-8500
Attorney for Plaintiff
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County of Cumberland
Harold Z. Swidler
Court of Common Pleas
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No. ~Q99_:.~~J_h_~J.'!:H_.:r.~!l.!1m_____hn 19m_
Earl Wyand
In -'~!y}..! _~~.:t..:!:<2!.l.:-Jo~___ __ _ _ ____m_______m_
To ~~!_~~~_________________________________
You are hereby notified that
.___F_~QlfL_~._p~idl~________________________.________________________________________________
the Plaintiff has commenced an action in ______C,iyi-.,L!.J;lYLn__n__nn_______n____n__n__n___
against you which you are required to defend or a default judgment may be entered against you.
(SEAL)
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. Prothonotary
Date1' <m!.'~_'::Y-11..._?QitQ____________ 19____
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Deputy
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and subnitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next Argunent Court.
---~-----------------------------------------------------------------------------------
CAPTION OF CASE
(entire caption must be stated in full)
HAROLD Z. SWIDLER,
( Plaintiff)
vs.
EARL WX1'iND
( Deferxlant)
No. 26:7
Civil Term
Xle< 2000
L State matter to be argued (Le., plaintiff's rrotion for new trial, deferxlant's
demurrer to ctmplaint, etc.J:
Plaintiff I S 'Prelimina:vyr)b~j ections to Defendant I s Preliminary Obj-ections
2. Identify counsel who will argue case:
(a) for plaintiff: Bruce J. Warshawsky
Address: 1820 Linglestown Road
Harrisburg, PA 17110
(b) for defendant:
Address:
Tyrone G. Johnson
30. South Second Street
Chambersburg, PA 17201
3. . I will notify all parties in writing within b<<:> days that this case has
been listed forargunent.
4. Argunent Court Date: 11 October 2000
Dated: 13 September 2000
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUN'l'Y, PENNSYLVANIA
HAROLD Z. SWJ:DLER
No. 2000-267 Civil Term
Plaintiff
vs.
Civil Action-Law
EARL WYAND,
Defendant
Ju~y T~ial Demanded
VERIFICATION
I, Earl Wyand, hereby verify that the statements made in a
Preliminary Objection filed on my behalf on August 25, 2000, in
the above captioned matter, are true and correct in part
according to my personal knowledge, and as to the remainder, upon
information and belief. I understand that false statements
herein are made subject to the penalties of Pa. C.S.A. Section
4904, relating to unsworn falsifications to authorities. At the
time of filing I was unavailable to be in the state of
Pennsylvania.
Date: October (p
, 2000
E~Ll~X~c/'
CERTIli'J:CAH OF SERVICE
I , Tyrone G. Johnson, Esquire, certify that I served a true
and correct copy of Defendant's Verification in ~ stated above
by first class mail, postage prepaid on October , 2000, to:
Bruce J. Warshawsky, Esquire
Law Office of Berstein & Warshawsky
l820 Linglestown Road
Harrisburg, PA 17110
(Attorney For Plaintiff)
T ne . Jon on, Esquire
A orney for Defendant
30 S. Second Street
Chambersburg, PA 17201
(717) 264-0445
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HAROLD Z. SWIDLER,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
vs.
00-0267 CIVIL
EARL WYAND,
Defendant
CIVIL ACTION - LAW
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS AND PLAINTIFF'S
PRELIMINARY OBJECTIONS THERETO
BEFORE HOFFER. PJ.. HESS AND GUIDO. J.J.
ORDER
AND NOW, this Z-tl day of January, 2001, the preliminary objections of the
defendant for a more specific pleading and in the nature of a demurrer are DENIED. A hearing
on an allegation of improper service is herewith set for Thursday, February 8, 2001, at 11:00
a.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, P A.
BY THE COURT,
Bruce Warshawsky, Esquire
For the Plaintiff
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Tyrone G. Johnson, Esquire
For the Defendant
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Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
00-0267 CIVIL
vs.
EARL WYAND,
Defendant
CIVIL ACTION - LAW
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS AND PLAINTIFF'S
PRELIMINARY OBJECTIONS THERETO
BEFORE HOFFER. P.l.. HESS AND GUIDO, J.J.
OPINION AND ORDER
This is a case in which the defendant challenges the service of original process. The
plaintiff, Harold Z. Swidler, filed a praecipe for writ of summons on January 13, 2000. The
defendant, Earl A. Wyand, is a resident of West Virginia. The plaintiff attempted to serve
Wyand by certified mail, twice, in accordance with PaRC.P. 403 and 404, but was unsuccessful.
Following the two unsuccessful attempts at service of the writ of summons by mail, the plaintiff,
on March 16, 2000, had the writ of summons reissued. The plaintiff maintains that the defendant
was served personally with a copy of the reissued writ of summons by private investigator,
Robert E. Bendig, on May 26, 2000, at Funeral Transport Services, Route 1, Box 169 JR,
Marlowe, WV 25419. An affidavit of service, provided by Bendig, was filed of record on June
22,2000. The defendant asserts that he was not personally served or otherwise served with a
copy of the writ.
The plaintiff then filed a complaint in this case. It was served upon the defendant by
first-class mail on July 25, 2000. The complaint alleges that on or about October 11, 1997,
Swidler and Wyand entered into a lease agreement whereby Wyand would lease the premises
from Swidler for ten years. Swidler had stored at the premises various items used for the
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00-0267 CIVIL
maintenance and improvement of the premises, including air conditioners, aluminum glass
double doors, a riding lawn mower, plywood, rubber roofing pads, drywall sheets, building
lumber, and an electrical system service, all of which had a collective value of $44,700.00.
Swidler and Wyand had several discussions about Wyand purchasing some or all of the
property from Swidler, but they purportedly never reached an agreement. On November 30,
1997, Swidler and Wyand agreed that the lease would be cancelled because Wyand was unable
to secure governmental approval for his intended use of the property. On or about January 17,
1998, Swidler discovered that the property stored at the premises had been removed. A
complaint alleges that it was Wyand who removed and carried away the property from the
premises.
When there was no answer to the complaint, the plaintiff served a ten-day notice of
default on the defendant. This was done by first class mail on August 18,2000. On August 25,
2000, the defendant filed preliminary objections claiming improper service pursuant to Pa.R.C.P.
1028(a)(1), a demurrer pursuant to PaRC.P. 1028(a)(4), and a claim oflack of specificity
pursuant to Pa.R.C.P. 1028(a)(3). The preliminary objections of the defendant demurring to the
plaintiff s complaint and seeking greater specificity are clearly without merit. They will be
denied without further discussion. The preliminary objection raising a claim of improper service
will, however, remain as an issue at least insofar as the defendant shall be granted a hearing on
the matter.
Proper service is a prerequisite to the court's jurisdiction over the person of a defendant.
Frvcklund v. Wav. 410 Pa. Super. 347, 599 A.2d 1332, 1334 (1991). In determining whether
proper service has been made, we require strict adherence to the rules. Collins v. Park, 423 Pa.
Super. 601,621 A.2d 996,997 (1993). Improper service is not merely a procedural defect that
2
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00-0267 CIVIL
can be ignored when the defendant, by whatever means, becomes aware that an action has been
commenced against him.l Frvcklund, 410 Pa. Super. at 351-52, 599 A.2d at 1334. The rule
applicable to service outside the Commonwealth is Pa.C.R.P. 404 and provides that service may
be made by a competent adult.
The Pennsylvania Supreme Court has held in the absence of fraud, the return of service
of a sheriff, which is full and complete on its face, is conclusive and immune from attack by
extrinsic evidence. Hollinger v. Hollinger, 416 Pa. 473, 206 A.2d 1 (1965). The Court
explained:
The rule of conclusiveness of a return of service of
process is based upon the presumption that a
sheriff, acting in the course of his official duties,
acts with propriety and, therefore, when a sheriff in
the course of such duties makes a statement, by
way of an official return, such statement is given
conclusive effect. However, both logic and
common sense restrict the conclusive nature of a
sheriff s return only to facts stated in the return of
which the sheriff presumptively has personal
knowledge, such as when and where the writ was
served. . .
Id. at 477,206 A.2d at 3.
Some courts have expanded the rule of conclusiveness to include constables. See
Anzalone v. Vormack, 718 A.2d 1246, 1249 (Pa. Super. 1998). In Vormack, the court reasoned
that because of the judicial nature and role of a constable and sheriff in the effectuation of
service of process before the minor judiciary, we see no reason to reserve the conclusiveness and
immunity from extrinsic attack of a return of service to a sheriff only. Id.
1 Because improper service goes to the jurisdiction of the court, it can be raised at any time. For this reason, clearly,
the preliminary objections of the plaintiff to the defendant's preliminary objections, alleging that the defendant's
objections are untimely, must be denied. Objections to improper service can be raised eyen after judgment. See
Dubrey Y. Izaguirre, 454 Pa.Super. 504, 685 A.2d 1391 (1996).
3
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00.0267 CIVIL
Here, however, the defendant is attacking the return of service by a private detective
hired by the plaintiff. In this regard, we know of no authority to the effect that a private
detective's return of service is conclusive and immune from a defendant's attack. Unlike a
sheriff or constable, a private detective is not working in an official capacity for the
Commonwealth but rather as a person hired by one of the parties. Thus, we cannot deem the
return conclusive on the basis that the detective has acted in a judicial role.
The defendant has filed a verification (albeit belatedly) confmning, under oath, his
assertion that he was not the person served by Detective Bendig. An issue of fact is thus raised
by this preliminary objection. As noted in Pa.R.C.P. 1028(c)(2), it now becomes incumbent
upon us to consider evidence "by depositions or otherwise." In an effort to avoid additional
delay in this case, we will set a brief hearing before the court, itself, on this matter.
ORDER
AND NOW, this 3" day of January, 2001, the preliminary objections of the
defendant for a more specific pleading and in the nature of a demurrer are DENIED. A hearing
on an allegation of improper service is herewith set for Thursday, February 8, 2001, at 11:00
a.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, P A.
BY THE COURT,
0111.1--
4
00-0267 CIVIL
Bruce Warshawsky, Esquire
F or the Plaintiff
Tyrone G. Johnson, Esquire
For the Defendant
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HAROLD Z. SWIDLER,
Plaintiff
vs.
EARL WYAND,
Defendant
AND NOW, this
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
BY THE COURT,
-I'
T day of February, 2001, at the request of counsel for the
parties, hearing in this matter set for February 8, 2001, is continued to Wednesday, March 28,
00-0267 CIVIL
CIVIL ACTION - LAW
ORDER
2001, at 3:00 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA.
Bruce Warshawsky, Esquire
For the Plaintiff
Tyrone Johnson, Esquire
For the Defendant
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IN THE COURT OF COMMON PLEAS OF
v
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
EARL WYAND,
Defendant
NO. 00-0267 CIVIL TERM
IN RE: HEARING CONTINUED
ORDER OF COURT
AND NOW, this 28th day of March, 2001, further
reinstated complaint.
hearing in this matter is continued pending service of the
By the Court,
Bruce Warshawsky, Esquire
For Plaintiff
Tyrone Johnson, Esquire
For Defendant
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Plaintiff
:tN THE COURT OF COM4ON PLEAS OF
CUMBElU.AND COUNTY, PENNSYLVANrA
vs.
NO.OO - 0267
Civil Tez:m
EARL WYAND,
Defendant
~OTICE
You have been sued in court. If you wish to defend against
the claim set forth in the following pages, you IIlUst take action
within twenty (20) days after this c~laint 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 c~laint or for any other
claim or relief requested by the plaintiff. You may lose money
or property or other rights important to you.
YOU SHOux.D TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU
DO NOT HAVE A ~R OR CANNOT AFFOlID ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT wmmE YOU CAN GET LEGAL HELP.
Court Administrator
Fourth Floor
Cu.berland County Courthouse
Carlisle, Pennsylvania 17013
Telephone (717) 240-6200
AMERICANS W!TH DISABILITIES ACT OF 1990
The Court of Common Pleas of Cumberland County is required
by law to c~ly with the Americans with Disabilities Act of
1990. For Info:r:mation about accessible facilities and reasonable
accommodations available to disabled individuals having bUsiness
before the Court, please contact our office. All arrangements
must be made at least 12 hours prior to any hearing or business
before the Court. You must attend the schedule conference or
hearing.
Ty, , Esquire
30 South Second Street
Cha:mbersburg, PA 17201
717-264-0445
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HAROLD Z. SWIDLER,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANXA
VB.
NO.OO - 0267 Civil Term
EAllL WYAND,
Defenc:l.ant
ANSWER WITH NEW MATTER OJ!' DEFENDANT
AND NOW comes Defendant, Earl Wyand, by and through his
Attorney, Tyrone G. Johnson, Esquire, and submits the following
Answer With New Matter Of Defendant and states in support thereof
as follows:
l. Denied. Defendant, is without information or knowledge
sufficient to form a belief as to the truth of averments of
paragraph 1 and proof thereof is demanded.
2. Admitted.
3. Denied. Defendant, after reasonable investigation, is
without information or knowledge sufficient to form a belief as
to the truth of the averments of paragraph 3, and finds that this
averment may be inaccurate in that the Plaintiff may be the agent
or co-owner of the subject building. Written proof of
Plaintiff's alleged sole ownership therefore is demanded. As to
the remaining averments, Defendant, after reasonable
investigation, is without information or knowledge sufficient to
form a belief as to the truth of the averments and proof
therefore is demanded.
4. Admitted in part and denied in part. It is admitted
that the Defendant conditionally entered into lease negotiations
with the Plaintiff, wherein the Plaintiff was to, upon condition
precedent to a lease, provide the Defendant with a written lease
which was never provided. As to the remaining averments,
Plaintiff has failed to attach proof of the alleged lease
agreement and they are denied therefore. Defendant, after
reasonable investigation, is without information or knowledge
sufficient to form a belief as to the truth of these remaining
averments and strict proof therefore is demanded.
5. Denied. Plaintiff may have left some junk in the
subject warehouse building which neither had installed windows
nor installed doors and was therefore totally unsecured and open
to anyone to walk into from off the street. Defendant therefore,
after reasonable investigation, is without information or
knowledge sufficient to form a belief as to the truth of these
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remaining averments and strict proof is demanded.
6. Denied. Defendant, after reasonable investigation, is
without information or knowledge sufficient to form a belief as
to the truth of the averments and proof therefore is demanded.
By way of further answer, Plaintiff has failed to attach proof of
the alleged lease agreement which would contain such terms in
support of this assertion. Defendant would not assume
responsibility for an unsecured building, with no windows or
doors and located in an out of the way area in which the
Plaintiff maintains he stored, without any security, $44,700.00
in ~Swidler's Personal Property".
7. Denied. Defendant, after reasonable investigation, is
without information or knowledge sufficient to form a belief as
to the truth of the averments and proof therefore is demanded.
By way of further answer, Defendant avers that the Plaintiff may
have left abandoned junk in the unsecured structure, but not
$44,700.00 worth of ~Swidler's Personal Property", nor would
Defendant have assumed such responsibility .
8. Denied. Defendant, after reasonable investigation, is
without information or knowledge sufficient to form a belief as
to the truth of the averments and proof therefore is demanded.
9. Admitted in part and denied in part. It is admitted
that the Defendant could not use or lease the building for the
intended purposes. As it is noted above, leasing of the subject
premises was based on certain conditions precedent; however, it
is denied that the negotiations were terminated on or about
November 30, 1997, but that they were terminated during the first
part of the last quarter of 1997. As to a lease agreement, the
Defendant seeks specific proof thereof. The remaining averments
are denied, as Defendant, after reasonable investigation, is
without information or knowledge sufficient to form a belief as
to the truth of the remaining averments and proof therefore is
demanded.
lO. Denied. Defendant, is without information or knowledge
sufficient to form a belief as to the truth of averments of
Paragraph 10 and proof thereof is demanded.
11. Denied. Defendant, is without information or knowledge
sufficient to form a belief as to the truth of averments of
Paragraph 11 and proof thereof is demanded.
12. Denied. Defendant, is without information or knowledge
sufficient to form a belief as to the truth of averments of
Paragraph 12 and proof thereof is demanded.
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WHEREFORE, Defendant prays your Honorable Court to dismiss
the Complaint of Plaintiff, and enter judgment in favor of
Defendant.
NEW MATTER
13. The foregoing responses, Paragraphs 1 through 12 to the
averments of the Complaint, are incorporated by reference and re-
alleged as affirmative defenses.
14. The alleged cause of action did not accrue within the
period of the applicable Statute of Limitations and is,
therefore, barred.
l5. The cause of action averred in the Plaintiff's Complaint
arose, according to the date of November 30, 1997, as set out in
the Complaint, more than two (2) years prior to the institution
of this suit and is barred by the provisions of 42 Pa.C.S.A.
Sections 5524(3), et alii, which provide for a two (2) year
Statute Of Limitations period for actions for taking, detaining
or injuring personal property, including actions for specific
recovery thereof, for the following reasons:
a. The Plaintiff refers to a lease agreement in his
Complaint as having been entered into on or about October ll,
1997, Paragraph 4 of Plaintiff's Complaint.
b. The Plaintiff asserts in his Complaint at Paragraph 9,
that this lease agreement became null and void on or about
November 30, 1997.
c. The ~laintiff filed his Praecipe For Writ Of Summons on
January 13, 2000, or approximately 43 days after the Statute Of
Limitations tolled, or from December 1, 1999, which reflects two
(2) years and 43 days from November 30, 1997.
d. The Plaintiff, in order to comply with the requirements
of 42 Pa.C.S.A. Sections 5524(3), et alii, must have initiated
and filed his action with the Prothonotary by December 1, 1999.
e. The right of the Plaintiff's action accrued simultaneous
with the termination of the Plaintiff's asserted lease agreement
which was contemporaneous with his duty to inspect the premises
after he maintains that he had gained re-possession which was on
or about November 30, 1997, Paragraph 9 of Plaintiff's Complaint.
16. The Defendant has requested proof of the alleged lease
agreement, more specifically a copy thereof from Plaintiff, and
has not received said document; and Defendant maintains that said
document does not exist therefore.
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l7. Plaintiff maintains that he had stored enumerated items
at the subject property and alleges that the Defendant and/or his
accomplishes removed them or carried them away; however, the
Plaintiff does not assert that he had reported the alleged
missing property to the local police as being stolen, that the
police conducted an investigation, that the police apprehended
persons at the premises who were in possession of his property,
and that the police have made a report of the incident naming
these persons, along with the date that the Plaintiff reported
the property stolen, thereby also establishing another date as to
when the Plaintiff discovered that the subject property was
allegedly removed from the premises.
18. Plaintiff has not named these additional parties, who
should be named as a part of the suit, nor does he state whether
he has recovered from his building insurance carrier, or from any
other carrier for the alleged loss.
19. The Defendant has requested a copy of the police theft
investigative report and has not received a copy from Plaintiff.
20. The Plaintiff has caused the Defendant irreparable harm
as a result of having initiated his action over 2 years after
accrual of the action.
21. The Plaintiff has caused the Defendant not only
irreparable harm as a result of Paragraph 20 supra, but has
exacerbated this irreparable harm by lack of due diligence in
that he did not facilitate service of process upon the Defendant
timely and reasonably, but in fact served the Defendant on March
28, 200l, or approximately some three (3) years and four (4)
months after the action actually accrued, Paragraph~9 of
Plaintiff's Complaint.
WHEREFORE, Defendant
Plaintiff's Complaint and
Plaintiff.
prays your Honorable Court to dismiss
enter judgment in his favor and against
Date: 4/l2/01
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1.0. # 48780
Attorney for Defendant
30 S. Second Street
Chambersburg, PA 1720l
(717) 264-0445
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VERIFICATION
I, Earl Wyand, have read the foregoing document and to the
extent it is based upon information that I have given to counsel,
it is true and correct to the best of my knowledge, information
and belief. I understand that any false statements made herein
are subject to the penalties of 18 Pa. C.S.A. Section 4904,
relating to unsworn falsification to authorities.
c5JCfOI
DATE: April;l~' ,2001
E~W~~
CERTIFICATE OF SERVICE
I , Tyrone G. Johnson, Esquire, certify that I served a true
and correct copy of Defendant's ANSWER WITH NEW ~TTER OF
DEFENDANT by first class mail, postage prepaid on April 12, 2001,
to:
Bruce J. Warshawsky, Esquire
Law Office of Berstein & Warshawsky
1820 Linglestown Road
Harrisburg, PA 17110
(Attorney For Plai tiff)
Ty ne Jo son, Esquire
At orney for Defendant
30 S. Second Street
Chambersburg, PA 17201
(717) 264-0445
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYL VANIA
HAROLD Z. SWIDLER,
Plaintiff
NO. 2000-267 Civil Term
v.
CIVIL ACTION - LAW
EARL WYAND,
Defendant
JURY TRIAL DEMANDED
REPLY TO NEW MATTER
Now, the Plaintiff, Harold Z. Swidler ("Swidler"), by and through his attorneys, the Law
Office of Bernstein & Warshawsky, files a Reply to New Matter led by the Defendant, Earl
Wyand ("Wyand") as follows:
13. No response is required as affirmative defenses must be specifically pled in New
Matter and not incorporated by reference from Defendant's answer.
14.
required.
The averments of this Paragraph are legal conclusions to which no response is
15. The averments of this Paragraph are specifically denied to the extent that the
averments are not legal conclusions, to which no response would be required. By way of further
answer, Paragraph 10 of Swidler's Complaint identifies January 17, 1998 as the date on which
the cause of action averred in Plaintiff s Complaint accrued.
(a) Admitted in part and denied in part. Plaintiffs cause of action is not
predicated on the Lease Agreement referred to in Paragraph 4 of Plaintiffs Complaint. To the
extent that New Matter Paragraph l5(a) repeats Swidler's Complaint of Paragraph 4, the same is
admitted, otherwise it is denied.
(b) Admitted in part and denied in part. Plaintiffs cause of action is not
predicated on the Lease Agreement re.ferred to in Paragraph 9 of Plaintiffs Complaint. To the
extent that New Matter Paragraph l5(a) repeats Swidler's Complaint of Paragraph 9, the same is
admitted, otherwise it is denied.
(c) Admitted in part and denied in part. It is admitted that Plaintiff filed this
Praecipe for Writ of Summons on January 13,2000. It is denied that filing of the Writ was after
the statute of limitations tolled, which was a legal conclusion to which no response is required.
~
(d) The averments of this Paragraph are legal conclusions to which no
response is required.
(e) Denied as stated. Plaintiff s cause of action is based in conversion, not
on the Lease Agreement. Plaintiff maintains that he regularly inspected the premises and did not
discover that the items alleged converted by the Defendant were discovered missing until
January 17, 1998.
16. Admitted in part and denied in part. It is admitted that the Defendant has
requested proof of the Lease Agreement and that Plaintiff has not provided a copy of said
agreement. Discovery in this case has not yet commenced. It is denied that the Lease
Agreement does not exist and can be provided to Defendant in response to a proper discovery
request.
17. Admitted in part and denied in part. It is admitted that Plaintiff has pled in
Paragraph 10 of the Complaint that Defendant and his accomplices removed and converted
Plaintiffs personal property and it is further admitted that Plaintiff has not averred in the
Complaint that the local police were notified or any of the other averments contained in
Paragraph 17 of Defendant's New Matter. By way of further answer, none of the averments
contained in Paragraph 17 of Defendant' s New Matter were essential to establishing a proper
claim of conversion and the information Defendant seeks can be obtained through the
appropriate discovery process.
18. Admitted. It is admitted that Plaintiff has not named any other parties to this
lawsuit. Defendants may add additional Defendants in accordance with the Rules of Civil
Procedure. It is further admitted that Plaintiff does not state whether he has recovered from his
building insurance carrier, or from any other carrier for the loss Plaintiff alleges, as such
information is not germaine to the cause of action for conversion and the information Defendant
seeks will be provided during discovery.
19. Admitted in part and denied in part. It is admitted that the Defendant has
requested proof of the Lease Agreement and that Plaintiff has not provided a copy of said
agreement. Discovery in this case has not yet commenced. It is denied that the Lease
Agreement does not exist and can be provided to Defendant in response to a proper discovery
request.
20. The averments of this Paragraph oflegal conclusions to which no response is
required. To the extent that a response is deemed to be required, after reasonable investigation,
Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the
matters asserted herein, therefore they are denied. By way of further, Defendant is attempting, in
New Matter, to aver a positive counterclaim, when none has been advanced.
.--~~
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21. The averments of this Paragraph oflegal conclusions to which no response is
required. To the extent that a response is deemed to be required, after reasonable investigation,
Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the
matters asserted herein, therefore they are denied. By way of further, Defendant is attempting, in
New Matter, to aver a positive counterclaim, when none has been advanced.
D,w d2- ') /6!
Respectfully Submitted:
Law Office of Bernstein & Warshawsky
~
Supreme Court Id No. 58799
1820 Linglestown Road
Harrisburg, PA 17110
(717) 232-8500
Attorney for Plaintiff
-
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
HAROLD Z. SWIDLER,
Plaintiff
NO. 2000-267 Civil Term
v.
CNIL ACTION - LAW
EARL WYAND,
Defendant
JURY TRIAL DEMANDED
VERIFICA TION
I, Harold Z. Swidler, verify that the statements made in the foregoing Reply to New Matter are true
and correct to the best of my knowledge, information and belief. I understand that false statements
are made subject to the penalties of 18 Pa.C.S. S 4904 relating to unsworn falsification to authorities.
Date: ~ (~) {o\
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYL VANIA
HAROLD Z. SWIDLER,
Plaintiff
NO. 2000-267 Civil Term
v.
CIVIL ACTION - LAW
EARL WYAND,
Defendant
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I, Bruce J. Warshawsky, Esquire, do hereby certify that I served a true and correct copy
of the foregoing Reolv to New Matter upon the following below-named individual(s) by
depositing the same in the U.S. Mail, postage pre-paid, this ~day of fl-pr I I 200/.
Tyrone G. Johnson
30 South Second Street
Chambersburg, PA 17201
Attorney for Defendant
Bruce J. Warshawsky, Esq . e
Law Office of Bemstein & arshawsky
1820 Linglestown Road
Harrisburg, PA 17110
(717) 232-8500
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYL VANIA
HAROLD Z. SWIDLER,
Plaintiff
NO. 2000-267 Civil Term
v.
CIVIL ACTION - LAW
EARL WYAND,
Defendant
JURY TRIAL DEMANDED
RULE TO SHOW CAUSE
A Rule to show cause is hereby issued upon the Defendant, Earl Wyand, to show cause
why the Motion to Compel Settlement should not be granted.
Rule returnable in twenty (20) days from the service of the date of this Order.
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By the Court
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYL VANIA
HAROLD Z. SWIDLER,
Plaintiff
NO. 2000-267 Civil Term
v.
CIVIL ACTION - LAW
EARL WYAND,
Defendant
JURY TRIAL DEMANDED
MOTION TO COMPEL SETTLEMENT
AND NOW, the Plaintiff, Harold Z. Swidler ("Swidler"), by and through his attorneys,
the Law Office of Bernstein & Warshawsky, files this Motion to Compel Settlement and in
support thereof avers as follows:
I. On January 9, 2002, undersigned counsel sent the letter attached hereto as Exhibit
"A" dated January 9, 2002, to counsel for Defendant, Earl Wyand ("Wyand"), Tyrone Johnson
("Attorney Johnson").
2. By letter dated January 15,2002, Attorney Johnson, acting with the express
and/or apparent authority of Wyand, authored the letter attached hereto as Exhibit "B",
accepting undersigned counsel's proposal to settle this matter for Ten Thousand ($10,000.00)
Dollars.
3. Undersigned counsel sent a letter dated January 9, 2002 (dated in error, actually
faxed to Attorney Johnson on January 18,2002), attached hereto as Exhibit "C". The terms and
conditions contained in Exhibit "C" do not alter the essential terms of the Agreement set forth in
Attorney Johnson's letter dated January 15,2002.
4. Undersigned counsel sent the letter attached hereto as Exhibit "D" dated January
31, 2002, in an effort to resolve this matter without resort to filing the instant Motion, but to
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date, neither Attorney Johnson or Wyand has agreed to voluntarily comply with the Settlement
Agreement made by and between the parties on or about January 15, 2002. .
5. The concurrence of Attorney Johnson has been sought, who has refused to concur
in this Motion.
6. The Honorable Kevin A. Hess has previously ruled on Preliminary Objections in
this case.
7. Plaintiff Swidler requests that the Court enforce the terms and conditions of the
Settlement Agreement to wit:
A. Wyand shall pay Swidler the amount ofTen Thousand ($10,000.00)
Dollars on or before April 1, 2002;
B. The Parties are directed to execute full and inclusive Releases;
C. The Plaintiff shall be directed to file a Praecipe to Settle, Discontinue and
End this case upon the satisfaction of conditions A & B above.
WHEREFORE, the Plaintiff, Harold Z. Swidler, respectfully requests that this Honorable
Court require that the matter be settled in accordance with the terms and conditions of Attorney
Johnson's letter dated January 15,2002, to order Mr. Wyand to pay Mr. Swidler Ten Thousand
($10,000.00) Dollars, that the parties execute full and complete Releases and that Mr. Swidler
mark this case Settle, Discontinued and Ended.
Date:
d-/~{Od-
Respectfully Submitted:
Law Office of Bernstein & Warshawsky
0-n1~../'
Bruce J. Warshawsky
Supreme Court 1d No. 58799
1820 Linglestown Road
Harrisburg, P A 1711 0
(717) 232-8500
Attorney for Plaintiff
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
HAROLD Z. SWIDLER,
Plaintiff
NO. 2000-267 Civil Term
v.
CIVIL ACTION - LAW
EARL WYAND,
Defendant
JURY TRIAL DEMANDED
VERIFICA TION
I, Bruce J. Warshawsky, counsel to Plaintiff, have firsthand knowledge ofthe averments contained
herein and verify that the statements made in the foregoing Motion to Compel Settlement are true
and correct to the best of my knowledge, information and belief. I understand that false statements
are made subject to the penalties of 18 Pa.C.S.g 4904 relating to unsworn falsification to authorities.
Date: J(J-10&--
f/l) A/V7
Bruce J. Warshawsky
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
HAROLD Z. SWIDLER,
Plaintiff
NO. 2000-267 Civil Term
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CIVIL ACTION - LAW
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EARL WYAND,
Defendant
JURY TRIAL DEMANDED
Tyrone G. Johnson, Esquire
30 South Second Street
Chambersburg, P A 17201
Attorney for Defendant
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CERTIFICATE OF SERVICE
I, Bruce J. Warshawsky, Esquire, do hereby certify that I served a true and correct copy
ofthe foregoing Motion to Compel Settlement upon the following below-named individual(s) by
depositing the same in the U.S. Mail, postage pre-paid, this~).. day of ~~
2002.
-y
. B e J. arshawsky, Esquire
Law Office of Bernstein & Warshawsky
1820 Linglestown Road
Harrisburg, PA 17110
(717) 232-8500
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THE LAW OFFICE OF
BERNSTE][N & WARSHAWSKY
DIANE K. McKAY, PARALEGAL/LAW CLERK E-mail: dianemckay@prodigy.net
1820 linglestown Rood
Harrisburg, Pennsylvania 17110
Phone 17171232-8500
Fax 717 232-8035
MILTON BERNSTEIN, ESQUIRE E-mail: miltb@prodigy.net
BRUCE J. WARSHAWSKY, ESQUIRE E-mail: bruce_w@prodigy.net
www.lowbw.com
January 9,2002
Tyrone G. Johnson, Esquire
30 South Second Street
Chambersburg, PA 17201
Re: Swidler v. Wyand
Dear Tyrone:
Thank you for your letter dated December 27, 2001. As we discussed, the deposition of
Mr. Wyand is scheduled for January 29, 2002 at 1:00 p.m. at my office. A Notice of
Deposition is enclosed for you to forward to Mr. Wyand.
As I also explained to you, Mr. Swid.ler is out of town until April 15, 2002, and he will be
unavailable for a deposition on January 29, 2002, or any time before he returns.
Finally, your offer of $5,000 is hereby rejected, I am optimistic about resolving this matter,
however, and will recommend to my client a settlement in the amount of $10,000, if offered
by your client and paid no later than one week prior to the deposition, by January 22, 2002.
I look forward to hearing from you,
Very truly yours,
BERNSTEIN & WARSHAWSKY
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Enclosure
cc: Harold Z. Swidler
I.{frl~{ adIJi:,o,. to jlr4i:Jsilltll7.{J ami tht' Imsim.J-' (()II!t1lTmi~)': nnd to i1ldh'idum'sJiw f.ittltt'J tHuiJiwwdClI plmmill!7
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LAW OFFICES
Wl1rnnt Ci. ~n1tnsnn
30 SOUTH SECOND STREET
CHAMBERBURG, PA 17201
(717) 264-0445 FAX (717) 264-4703
January 15, 2002
Bruce J. Warshawsky, Esquire
Law Office of Bernstein & Warshawsky
l820 Linglestown Road
Harrisburg, PA l71l0
RE: Swidler v. Wyand. No. 00 -0267, Civil Term
Dear Mr. Warshawsky:
With regards to your notice to take the deposition of Earl Wyand on January 29,
2002, at 1 :00 p.rn., please be advised that Mr. Wyand informed me on 1/14/02 that he can not
participate in the schedule deposition due to a conflict. It appears that Mr. Wyand has an
important appointment with his physician on that date. Please reschedule the deposition
therefore.
With regards to your letter dated 1/9/02 please be advised that I am authorized to accept
your offer of$1O,OOO.OO in full settlement of your claim. In making this offer, my wishes to
inform you that he is not admitting to any wrong doing or liability and that his acceptance will
require two (2) payments. The first payment of $5,000.00 will be paid now, and the second
payment of $5,000.00 is to be paid on or before April 1, 2002. Full and inclusive releases will be
required. It is possible that a Settlement Stipulation may be executed.
Please advise as soon as possible in order that we may get you the first payment
immediately.
v cry tru!9
A/
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T. J on,
cc:
Earl Wyand
Box 169-JR
Marlowe, West Virginia 25419
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THE LAW OFFICE OF
JBEIRNSTEJIN & WARSHAWSKY
DIANE K. McKAY, PAR.A..LEGAL/LAW CLERK E-mail: dianemckoy@prodigy.net
1820 Unglestown Road
Harrisburg, Pennsylvania 17110
Phone 1717l232-8500
FQ' 717 232.8035
MilTON BERNSTEIN, ESQUIRE E-mail: milt_b@prodigy.net
BRUCE J. WARSHAWSKY, ESQUIRE E-mail: bruc6_W@prodigy.net
www.lawbw.com
January 9, 2002
VIA FACSIMJLE ONLY 264-'- 04"\\
Tyrone G. Johnson, Esquire
30 South Second Street
Chambersburg, P A 17201
Re: Swidler v. Wyand
Dear Tyrone:
Thank you for your letter dated January 15, 2002. Your offer is accepted, provided we
receive the first $5,000.00 payment by no later than February 1, 2002 and the second
$5,000.00 payment by no later than April 1, 2002. Upon receipt of the second payment we
will execute a full, all encompassing, mutual release (which I shall draft) and we will, at our
expense, file a Praecipe to Settle Discontinue and End the litigation. In the event your client
fails to make either payment timely, we will proceed with the litigation and depose him in
ApriL I ask that you provide me with a few dates for the deposition and I will send a revised
Notice.
Many thanks for your attention to this matter. Please kindly counterexecute this letter
below, signifying your assent to the terms contained herein.
Very truly yours,
~~fNST~IN~ W~SHA ~5Y ..
J;. .' -'/l 'J 'J
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BJW/mkz
Enclosure
cc: Harold Z. Swidler
Tyrone Johnson, Esq., Attorney for Earl Wyand
LC811J advisor to pf(~fcssi(mIlJJ lmd the IntJiuess cO/unnmity; 1'U7d to iNdividuals fin- estates ami fi1tancial planning
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THE lAW OFFICE OF
BERNSTEIN & W AJRSHA WSJIIT
DIANE K. McKAY, PARALEGAl/LAW CLERK E~moil: dianemckay@prodigy.net
1820 linglestown Rood
Harrisburg, Pennsylvania 17110
Phone {717J 232.8500
Fax (71 7 232-8035
MILTON BERNSTEIN, ESQUIRE E-mail: miltb@prodigy.nef
BRUCE J. WARSHAWSKY, ESQUIRE E-mail: bruce_W@prodigy.net
www.lawbw.com
January 31,2002
VIA F ACSIMILE ONLY 264-0445
Tyrone G. Johnson, Esquire
30 South Second Street
Chambersburg, P A 17201
Re: Swidler v. Wyand
Dear Tyrone:
I am greatly dismayed that your client has chosen to breach our agreement to settle this case,
which you communicated to me yesterday by telephone. We are preparing a Petition to
Enforce Settlement to present to the Court, as an agreement (not merely an offer made) to
settle was formed in my January 9, 2002 (sic, actually faxed on January 18, 2002)
correspondence.
For now, I would also like to select a date for your client's deposition on any day after
February 18, 2002. Your client chose to ignore my first Notice of Deposition and then, after
agreeing to a deposition date of January 29, 2002, engaged in negotiations (which smack of
bad faith) to settle(culminating in the agreement which he has now breached), taking us past
that date (you also stated that he conveniently "forgot" about a doctor's appointment and
would not be able to aitend in any event).
;,
We also intend to seek sanctions and attorneys fees for your client's obdurate, vexatious and
bad faith conduct in connection with this breach.
However, we will reconsider taking this tack if he honors the agreement under even more
agreeable terms. He can pay the entire $10,000.00 on April 1, 2002, at which time we will
execute a mutual and sweeping release and file a Praecipe to Settle Discontinue and End the
litigation. If your client wishes to avoid protracted and expensive (and unnecessary) litigation
over the Petition, I encourage you to persuade him to settle on these terms. If he wishes to
settle on these terms, we should select a deposition date in April, in the vent he should again
breach.
Please kindly counterexecute this letter below, signifying your client's assent to the terms
contained herein.
Ltgaf advisar to P17'Jfi:ssiolUds and the bUJiness [o;;mumity,; (wd to individualr fill' c.rtatCJ mid financial plmming
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LAW OFFICE OF BERNSTEIN & W ARSHA WSKY
January 31, 2002
Page 2
Please kindly counterexecute this letter below, signifying your client's assent to the terms
contained herein.
Very truly yours,
~STEIN & WARS
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BJW
cc: Harold Z. Swidler
Tyrone Johnson, Esq., Attorney for Earl Wyand
LC;Jal adl'isor to frrqfi:ssionaLI' and the business cOlmnulli~ll; rmd to indil'idualsfm' cst-aCts andjincmcial plrtJ/l1in.q
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
HAROLD Z. SWIDLER,
Plaintiff
NO. 2000-267 Civil
v.
CIVIL ACTION - LAW
EARL WYAND,
Defendant,
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I, Bruce Warshawsky, Esquire, do hereby certify that I served a true and correct copy of
the foregoing Rule to Show Cause upon the following below-named individua/(s) by depositing the
same in the U.S. Mail, postage pre-paid, this 27th day of February 2002.
Tyrone G. Johnson, Esquire
30 South Second Street
Chambersburg, PA 17201
ATTORNEY FOR DEFENDANT
BERNSTEIN & WARSHAWSKY:
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LAW OFFICE OF
BERNSTEIN & WARSHAWSKY
1820 L~WN ROAD
HARRISeURG, PA 17110
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYL VANIA
HAROLD Z. SWIDLER,
Plaintiff
NO. 2000-267 Civil Term
v.
CIVIL ACTION - LAW
EARL WYAND,
Defendant
JURY TRIAL DEMANDED
RULE TO SHOW CAUSE
A Rule to show cause is hereby issued upon the Defendant, Earl Wyand, to show cause
why the Motion to Compel Settlement should not be granted.
Rule returnable in twenty (20) days from the service of the date of this Order.
rebru.o..rj 26. tOO:<
By the Court
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
HAROLD Z. SWIDLER,
Plaintiff
NO. 2000-267 Civil Term
v.
CIVIL ACTION - LAW
EARL WYAND,
Defendant
JURY TRIAL DEMANDED
PRAECIPE TO SETTLE. DISCONTINUE AND END
TO THE PROTHONOTARY:
Please mark the above-referenced matter settled, discontinued and ended.
ce. arshawsky
Law Office of Bernstein &
1820 Linglestown Road
Harrisburg, P A 1711 0
(717) 232-8500
Attorney for Plaintiff
Date: May 30, 2002
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
HAROLD Z. SWIDLER,
Plaintiff
NO. 2000-267 Civil Term
v.
CIVIL ACTION - LAW
EARL WYAND,
Defendant
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I, Bruce J. Warshawsky, Esquire, do hereby certifY that I served a true and correct
copy of the foregoing Praecipe to Settle. Discontinue and End upon the below-named
individual(s) by depositing the same in the U. S. Mail, first-class postage prepaid, this 30th day of
May, 2002.
Tyrone G. Johnson, Esquire
30 South Second Street
Chambersburg, Pa 17201
ATTORNEY FOR DEFENDANT
~
Law Office of Bernstein & Warshawsky
1820 Linglestown Road
Harrisburg, P A 1711 0
(717) 232.8500
ATTORNEY FOR PLAINTIFF
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SHERIFF'S RETURN - REGULAR
CASE NO: 2000-00267 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
SWIDLER HAROLD Z
VS
WYAND EARL
CPL. TIMOTHY REITZ
, Sheriff or Deputy Sheriff of
Cumberland County,pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE
was served upon
WYAND EARL
the
DEFENDANT
, at 0015:47 HOURS, on the 28th day of March
, 2001
at CUMBERLAND COUNTY COURTHOUSE
1 COURTHOUSE SQUARE
CARLISLE, PA 17013
by handing to
EARL WYAND
a true and attested copy of COMPLAINT & NOTICE
together with
REINSTATED
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
18.00
.00
.00
10.00
.00
28.00
So Answers:
~~..i~C~
R. Thomas Kline
me this It} ~
day of
03/28/2001
BRUCE WARSHAWSKY ~r---
By: T:4?
De ty Sheriff
Sworn and Subscribed to before
(]jJ,.-f A-ol A.D.
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B thonotary I