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Home My WebLink About00-00809 " -~~ ,I' ...~ IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA William E. Boyer, Ir., Plaintiff No. 2000-809 Civil Term Civil Action - Law and Equity v. Appeal from District Justice Judgment Ronald E. Harbold, Defendant Jury Trial Demanded BRIEF OF PLAINTIFF IN SUPPORT OF PRELIMINARY OBJECTIONS TO COUNTERCLAIM I. STATEMENT OF FACTS: On June 9, 1997, William E. Boyer, Jr. needed a tow of his 1990 Ford F250 4x4 truck. Ronald E. Harbold of Ron Harbold's Towing agreed to tow the truck for $50.00. While towing the truck down a hilI, the tow truck started to brake, but could not stop, slid, and struck a telephone pole near the intersection of Deer Lane and Wertzsville Road in Mechanicsburg. The Ford F250 slid up on the boom-towing device and damaged the Ford F250. Costs to repair the Ford F250, tow it from the scene, and secure a rental amounted to the sum total of $4,077 .32 for which Ron Harbold refused to pay. II. ISSUE: DOES PLAINTIFF ON THE COUNTERCLAIM STATE A CAUSE OF ACTION FOR WHICH RELIEF CAN BE GRANTED? (Answered in the negative.) 1 ~ """'" ~~ " ~ -~ . ~ .,. - m. ARGUMENT: I. STANDARD OF REVIEW When a demurrer objects to a counterclaim, the court is free to address only whether the claim, on its face, fails to assert a cause of action as a matter of law. Mellon Bailie N.A. v. Fahinyi, 650 A.2d 895, 437 Pa. Super. 539 (1994). The scope of review is as follows: A demurrer can only be sustained where the complaint is clearly insufficient to establi~h the pleader's right to relief. Firing v. Kephart, 466 Pa. 560, 353 A.2d 833 (1976). For the purpose of testing the legal sufficiency of the challenged pleading a preliminary objection in the nature of a demurrer admits as true all well-pleaded, material, relevant facts, Savitz v. Weinstein, 395 Pa. 173, 149 A.2d 110 (1959); March v. Banus, 395 Pa. 629, 151 A.2d 612 (1959), and every inference fairly deducible from those facts, Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970); Troop v. Franklin Savings Trust, 291 Pa. 18, 139A 492 (1927). The pleader's conclusions or averments of law are not considered to be admitted as true by a demurrer. Savitz v. Weinstein, supra. Since the sustaining of a demurrer results in a denial of the pleader's claim or a dismissal of his suit, a preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without doubt fail to state a claim for which relief may be granted. Schott v. Westinghouse Electric Corp., 436 Pa. 279, 259 A.2d 443 (1969); Botwinick v. Credit Exchange, lnc" 419 Pa. 65, 213 A.2d 349 (1965); Savitz v. Weinstein, supra; London v. Kingsley, 368 Pa. 109,81 A.2d 870 (1951); Waldman v. Shoemaker, 367 Pa. 587, 80 A.2d 776 (1951). If the facts as pleaded state a claim for which relief may be granted under any theory of law then there is sufficient doubt to require the preliminary objection in the nature of a demurrer to be rejected. Packler v. State Employment Retirement Board, 470 Pa. 368, 371, 368 A.2d 673, 675 (1977); see also Schott v. Westinghouse Electric Corp., supra, 436 Pa. at 291,259 A.2d at 449. Coun1y of Allegheny v. Commonwealth of Pennsylvania, 507 Pa. 360, 372, 490 A.2d 402, 408 (1985). 2 , ' ~ '''-' ~M II. THE COUNTERCLAIM FAILS TO STATE A CLAIM FOR WHICH RELIEF MAY BE GRANTED UNDER A CONTRACT THEORY. If the counterclaim presented a cause of action seeking an award of damages for breach of contract, the following standard applies: "A cause of action ex contractu must be established by pleading the existence of a contract (including its essential terms), a breach of duty imposed by the contract and resultant damages." General State Authority, Commonwealth of Pennsylvania v. Coleman Cable & Wire Company, 27 Cmwlth. Ct. 385, 388-389, 365 A.2d 1347, 1349 (1976). The counterclaim does not plead the breach of duty imposed upon Plaintiff, William E. Boyer, If., by contract. The standard for pleading a cause of action in contract is as follows: It is true, as appellant argues, that not every term of a contract rhust always be stated in complete detail Portnoy v. Brown, 430 Pa. 401, 243 A.2d 444 (1963), and that a court will if possible construe a contract so as to carry into effect the reasonable intention of the parties, if that intention can be ascertained, Rossmassler v. Spielberger, 270 Pa. 30, 112 A. 876 (1921). However, it is also true that every element of a contract must be specifically pleaded, Franklin Sugar Refining Co. v. Eiseman, 290 Pa. 486, 139 A. 147 (1927), and that when an oral contract is pleaded, clarity is important, Frey v. McLaughlin, 10 Leb. Co. L.J. 235 (1964). Snaith v. Snaith, 282 Pa. Super. 450, 455, 422 A.2d 1379, 1382 (1980). The counterclaim does not allege that William E. Boyer, Ir. breached any duty imposed by any contract. Where a cognizable cause of action in assumpsit has not been asserted, the proper remedy is to sustain the preliminary objections in the nature of a demurrer. See, General State Authority v. Coleman Cable & Wire Company, supra. Accordingly, Plaintiff respectfully requests this Honorable Court to sustain the preliminary objections of the counterclaim. 3 ,~, ' , ,~ : III. THE COUNTERCLAIM FAILS TO STATE A CAUSE OF ACTION ON WHICH RELIEF CAN BE GRANTED IN TORT. The Supreme Court has articulated the elements of pleading a cause of action in tort as follows: 5. The necessary elements to maintain an action in negligence are: a duty or obligation recognized by the law, requiring the actor to conform to a certain standard of conduct; a failure to conform to the standard required; a causal connection between the conduct and the resulting injury and actual loss or damage resulting to the interests of another. Prosser, Law of Torts, ~30 at 143 (4th Ed. 1971). See Macina v. McAdams, 280 Pa. Super. 115, 120, 421 A.2d 432, 434 (1980). Morena v. South Hills Health System, 501 Pa. 634, 642, n. 5,462 A.2d 680 (1983). The Defendant, Counter-Plaintiff, Ronald E. Harbold, does not aver that Plaintiff, William E. Boyer, Jr., breached any duty to allow for an award of damages arising in tort. Accordingly, Plaintiff, William E. Boyer, Jr., respectfully requests this Honorable Court to sustain the Preliminary objections and dismiss the counterclaim IV. THE COUNTERCLAIM FAILS TO AVER A CAUSE OF ACTION ON WHICH TO GRANT THE AWARD OF ATTORNEY FEES. It has long been the rule in Pennsylvania that "there can be no recovery for counsel fees from the adverse party to a cause, in the absence of express statutory allowance of the same..., or clear agreement by the parties, ... or some other established exception,...." Chatham Communications, Inc. v. General Press Corporation, 463 Pa. 292, 300-301, 344 A.2d 837 (1975) (citations omitted). Defendant/Counter-Plaintiff, Ronald E. Harbold, does not aver any exception to the general rule to plead a cause of action for the award of counsel fees. 4 -~- - -"I _- -" . Accordingly, Plaintiff, William E. Boyer, Jr., respectfully requests this Honorable Court to dismiss the counterclaim with prejudice. Respectfully submitted, / n",,, It;tf!,diOd' ,/1 David Mills Attorney for Plaintif , . Ham E. Boyer, Jr. Attorney I.D. No. 37192 138 East Market Street PO Box 2588 York, PA 17405-2588 Tele: 717-854-9506 Fax: 717-845-4931 5 ~ "- ~I' ~h . IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYL VANIA William E. Boyer, Jr., Plaintiff No. 2000-809 Civil Term Civil Action - Law and Equity v. Appeal from District Justice Judgment Ronald E. Harbold, Defendant Jury Trial Demanded CERTIFICATE OF SERVICE I, David Mills, Esquire, hereby certify that I have served a true and correct copy of the foregoing BRIEF OF PLAINTIFF IN SUPPORT OF PRELIMINARY OBJECTIONS TO COUNTERCLAIM upon counsel for the Defendant, by depositing a copy of same in the United States Mail, regular delivery, postage prepaid as follows: Madelaine N. Baturin, Esquire Balurin & Balurin 717 North 2nd Street Harrisburg, P A 17102 Do"" ""0<1< ,9=, avid Mills, Esquire Supreme Court No.3 13 8 East Market Street PO Box 2588 York, PA 17405-2588 (717) 854-9506 Attorneys for Plaintiff, William E. Boyer, Jr. ,H" ;',.. -~, ."' ~'"' _, _,_' ~o". ';'" '.' , ,~<' :'__;;":'~~'" ~""i'o' ;i;jh:>:,~,~",:;:,:;,,', - - . "~"'", , ~ - IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYL VANIA William E. Boyer, Jr., Plaintiff No. 2000-809 Civil Term Civil Action - Law and Equity v. Ronald E. Harbold, Defendant Appeal from District Justice Judgment 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. Ii II II It II " Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 Tele: 800-990-9108 Ijl "",.'. .,' """ " ,._ 0 ,~,~" , ,,"" """ ','oJ',,~, __j .', "- ~,~"'~. ',;' ",', ","~">k';+~'::;;;"o.<.-,;i'"f,i'.; ,," '~"',' "'~C' -,""","'.c;I"""j;.i~i-oi,;"_s<-,;',,, .'"," '."-' _,j~ A VISa LE RAN DEMANDADO A USTED EN LA CORTE. Si usted qui ere defenderse de estas demandas expuestas en las paginas signuientes, usted tiene viente (20) dias de plaza al partir de la fecha de la demanda y la notificacion, Usted debe presentar una apariencia escrita 0 en persona 0 por abogado y archivar en la corte en forma escrita sus defensas 0 sus objeciones a las demandas en contra de su persona, Sea avisado que si usted no se defiende, la corte tomara medias y puede entrar lIna orden contra usted sin previo aviso 0 notificacion y por cualquier queja 0 alivio que es pedido en la peticion de demanda. Usted puede perder dinero 0 sus propiedades 0 otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VA Y A EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUY A DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 Tele: 800-990-9108 il) Ii I II II 2 it " -;1- ,"~ ," "N'! < ... _ '. ,', ,". ',~'" '. N ,~- '"'0- ,.':-,,,;,"'k_<d,:"";,"; "~ --',.-. .",:""':'.;.;;b!:;ji~".,,:;~,;,-: ~', '- ;,', I,~ IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYL VANIA William E, Boyer, Jr., Plaintiff No. 2000-809 Civil Term Civil Action - Law and Equity v. Appeal from District Justice Judgment Ronald E. Harbold, Defendant Jury Trial Demanded SECOND AMENDED COMPLAINT AND NOW, this 8th day of June 2000, comes the Plaintiff, William E. Boyer, Jr., by his attorneys, Stetler & Gribbin, who files this Second Amended Complaint against Defendant, Ronald E. Harbold, on the following grounds: 1. Plaintiff, William E. Boyer, Jf., is an adult individual, who resides at P. O. Box 175, Lewisberry, York County, Pennsylvania and has a mailing address at 7475 Spring Road, Shermansdale, Perry County, Pennsylvania. 2. Defendant, Ronald E. Harbold, is an adult individual, residing at 6820 Spring Road, Sherman's Dale, Perry County, Pennsylvania 17090. COUNT I - BAILMENT 3. The allegations of fact in Paragraphs 1 and 2 are incorporated herein by reference thereto. 3 ','0;..,'"," - ".'. , ,_;c- ,,,,;, ' ,;;, r. '~i"",,,"c!i" " '" h ;',,,,':d.~,,,,J,-"" -_ ~ 4. On June 9, 1997, the 1990 Ford F250 4x4 HD vehicle of Plaintiff, William E. Boyer, Jr., required towing from a location south of Dills burg, York County, Pennsylvania. 5. On June 9, 1997, Plaintiff, William E, Boyer, Jr., contacted Defendant, Ronald E. Harbold, of Ron Harbold's Towing, 6820 Spring Road, Shermans Dale, Pennsylvania 17090, who owned a tow truck, to transport the Plaintiff s vehicle. 6. Defendant, Ronald E, Harbold, agreed to tow the vehicle of Plaintiff, William E. Boyer, Jf., forthe sum offifty ($50,00) dollars. 7. Plaintiff, William E. Boyer, Jr., in reliance upon the offer of Defendant, Ronald E, Harbold, refrained from contacting another tow operator who would have the ability to tow his vehicle safely, 8. Defendant, Ronald E. Harbold, had sole possession and control of the vehicle of Plaintiff, William E, Boyer, Jf., at all times while towing the vehicle. 9. The contract of hiring contained an implied covenant that Defendant, Ronald E. Harbold, will take reasonable care of the property hired. 10, On or about June 9, 1997, while in the possession of Defendant, Ronald E. Harbold, the front of the vehicle of Plaintiff, William E. Boyer, Jr., was damaged on State Route 944, Wertzville Road at or near the intersection with Deer Lane in Cumberland County, Pennsylvania. 11, Defendant, Ronald E. Harbold, never offered to repair the damage to the vehicle of Plaintiff, in the amount of Thirty-One Hundred Twenty-Two ($3122.33) Dollars and Thirty- three Cents, the cost of Ken's Towing for towing in the amount of One Hundred Fifty ($150,00) Dollars, which was required as a result of Ron Harbold's tow truck's collision with the telephone pole, Family Ford Mercury for the cost of a rental vehicle between June 10, 1997 and June 13, 4 '<,,' "~-. .", ,'", ". .' e,,', ,. ~,', ".'".c ,~," ',~~'. '''~''~''''''"i~'i.'.. ,~,' >~ _~:, ;~'"A',Ii.>.;';~"8i"'.,, .~, =...~;", 1997 in the amount of One Hundred Fifty-one ($151.59) Dollars Fifty-nine cents, or Spirit Rent- A-Car for the cost of a rental vehicle between June 18, 1997 and July 2, 1997, Six Hundred Fifty-three ($653.40) Dollars Forty Cents, 12. On and after August 20, 1997, Defendant, Ronald E. Harbold, refused to pay damages in the amount of Four Thousand Seventy-seven ($4,077.32) Dollars and Thirty-two Cents. 13, The property was returned to Plaintiff, William E. Boyer, Jr., in a damaged condition due to the actions and omissions of Defendant, Ronald E. Harbold, 14. The damaged condition of the vehicle constitutes a breach of the implied covenant that the bailee, Defendant, Ronald Harbold of Harbold's Towing would take reasonable care of the property hired, WHEREFORE, Plaintiff, William E. Boyer, Jr., respectfully requests this Honorable Court to enter judgment in his favor and against Defendant, Ronald E. Harbold, in an amount that does not exceed the limits of Arbitration in Cumberland County, Pennsylvania, plus costs. COUNT II - BREACH OF CONTRACT 15. The allegations of fact in Paragraphs I through 14 are incorporated herein by reference thereto. 16. On or about June 9, 1997, Defendant, Ronald E. Harbold, held out himself and his towing services, Ron Harbold's Towing, as providing competent and safe transportation of motor vehicles from one location to another. 5 , '." - '- '., - '-'"-"'- >,,~ 0-; - - '" , ;-~,";',.:i",'-- ", "0 ,L:.~_;,',""^",, ~,c<.:"",_" ""!_,,'J/i>.~,",-,',,,~, !;"~,,,,,-,,~,,,,~,"'-,,I,",,,,,~g;, -'-(-'" -,' :,~; 17. On or about June 9, 1997, Plaintiff, William E. Boyer, Jr., called Defendant, Ronald E. Harbold, to enter into an oral contract, which Defendant accepted and agreed to perform services for Plaintiff, including: a. Attaching the Plaintiff's vehicle to Defendant's tow truck. b. Towing the Plaintiff's vehicle to a garage for repairs. c, Unhooking and leaving the Plaintiff's vehicle either at Plaintiff's home or at a garage for service, 18, Defendant, Ronald E. Harbold, asked for the sum of $50.00 for the labor and the towing service and transportation, which Plaintiff, William E. Boyer, Jr., agreed to pay. 19. Plaintiff, William E. Boyer, Jr., in reliance upon the offer of Defendant, Ronald E. Harbold, refrained from contacting a tow operator who had the ability to tow the vehicle safely. 20. At all times relevant to this lawsuit, Defendant, Ronald E. Harbold, maintained a contract with Plaintiff to provide towing services for Plaintiff's motor vehicle 21. Defendant, Ronald E. Harbold, breached the contract with Plaintiff by: a. Failing to provide and maintain a proper towing apparatus for Plaintiff's vehicle; , I, '" ii II .' I. b, Failing to do no damage to the Plaintiff's vehicle; c. Returning the Plaintiff's vehicle in a damaged condition, 22. Defendant, Ronald E. Harbold, refused to pay Plaintiff, William E. Boyer, Jr., for repairs of the damage to the vehicle, and consequential expenses, as aforesaid, in the amount of Four Thousand Seventy-seven Dollars and Thirty-two Cents ($4,077.32). WHEREFORE, Plaintiff, William E. Boyer, Jr., respectfully requests this Honorable Court to enter judgment in his favor and against Defendant, Ronald E. Harbold, in an amount 6 1'" , ''',,~o' c",,:;': ';:~ ',1, - j: '"--'::',',,, ;';,C"_ ,'~l>-.;, o~~,.,' ,_ ""' ",'~'o.',,:.J '~:""':;_'""'-.'<';llrS:';'';'':;'..;i'',;'- '-:"':~ji r that is less than the jurisdictional amount for compulsory arbitration in Cumberland County, Pennsylvania, plus costs. Dated: 60(') 13 8 East Market Street PO Box 2588 York, P A 17405-2588 (717) 854-9506 Attorneys for Plaintiff, William E. Boyer, Jr. 7 il it .-- ,1"<' ~1 VERIFICATION I, William E. Boyer, Jr., state upon personal knowledge or information that I believe to be true that the facts in the SECOND AMENDED COMPLAINT, are true. I understand that false statements herein are made subject to the criminal penalties of 18 Pa. C.S. Sec. 4904, relating to unsworn falsification to authorities. Dated: 5, 31- 06 ~JfAmt~ a. William E. Boyer, Jr. / 8 "., . .--', -O:;-~, .,.\ ,- -,- , ,_,.. . ."~ _ 'o,~' 'i;' ,,:': :, ",,<iCe, :",1'_: ",,,;,,~,;;; , ""~w i I ! CERTIFICATE OF SERVICE I, David Mills, Esquire, hereby certity that I have served a true and correct copy of the foregoing SECOND AMENDED COMPLAINT upon counsel for the Defendant, by depositing a copy of same in the United States Mail, regular delivery, postage prepaid as follows: Madelaine Baturin, Esquire Baturin & Baturin 717 North 2nd Street Harrisburg, P A 17102 Dated: avid Mi s, Esq I Supreme Court No. 37 138 East Market Street PO Box 2588 York, PA 17405-2588 (717) 854-9506 Attorneys for Plaintiff, William E. Boyer, Jr, tA';"->"-'""""""'^"';"^" 'ili- " , ~,- , .,..__,,,",,,,,,,,"',,"'" .'~'-"" <,0; " ','<'," ."'" ""~~,"5'c~,," "''''#''$'H'''','jj,~W''''''' I ,',<< "..". " ''''''<'''"~''',,,,...,,,,,,,,,:,''<' , ~.'~'k",,,,.,,, . . . . . Ul Z ~ :;;: (l H t>J 0 0 H C Z ("l . 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" 0 C) () c: CJ -~.1 S \-... -rJCO c:-: 1l1nl ~ 12 z:::u to :i~ I , \..0 .-;~~\? -<~,. ~~(f~ ~o :::1 ~C) ~ ~.)~~ ~(-" I:? >c c5i-n Z -4 ?''''' )> ~ ~ -< rv -3:,',;', ',"";"''''''-~<!ii~.tl;;'!'"'iI'~'''',''],'1'~""iti,''-4'~~'''.oL",,#,'''',''''''*,"J_~',f"'W'iI~Yjj)lw."""'~~~i""_""._~~g,i~Ill1ii*;;Whi~,\,,,,,",,'-'-'llP""!""'~I!il'.i~<',a",~%"~~'j'lt""1I~~''V "~' 'un?J_~;; coMMON~EALTH OF PENNSYLVANIA COURT OF COMMON PLEAS Cumberland County JUDICIAL DISTRICT NOTICE OF APPEAL FROM 09-3-03 DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. ~OOC> - cPO 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 mentionedbelaw. NAME OF APPELLANT MAG. DlSt NQ OR NAME OF OJ. William E. Bo er Jr. ADDRESS OF APPEU.ANT CITY Susan K. Day STATE ZIP CODE 7475 Spring Road DATE OF JUDGMENT IN THE CASE OF (Plaintiff) Shermansdale, PA 17090 (Defendant) 1-14-00 O.AIM NO. Boyer Harbold HEY OR ,AGENT CV 111 0000225 99 lT 19 This block will be signed ONLY when this notation is required under Po. R 1008!!. This Notice of Appeal, when ....ceived by ihe District Justice, will operate as a SUPERSEDEAS ta iii.. judgmentfof passession in .this case. ~<- Signature of Prothonotary or Deputy If appellant was CLAIMA , (see Pa. R.CP.JP. 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 foon to be used ONLY when appellant was DEFENDANT (see Pa. R.CP,JP. No. 1001 (7) in action before District Justice. IF NOT USED, detach from copy of notice of appeal to be seNed upon appellee). PRAECIPE: To Prothonotary (Cammon Pleas No. Name of appelfee(s) ) within twenty (20) days aflet service of rule or suffer entry of judgment of non pro~ . appellee(s), ta file a complaint in this oppeal Enter rule upon Signature of appellant or his attorney or agent RULE: To ;"t.- ,,;c. .~ppell~e(s). Name of appe/Ifre(s) ./ ..." ,/;' 1) ("": (1) You are notified that a rule is hereby en~';'Piri tou'" file 0 complaint in this appeal within twenty (20) days after,the date of service of this rule upon you by personal service or by c;,fti~~\OI"~istered mait" (2) If you do.not file a complaint within this tilne, '1,jH~G~NT d~NONPROS Will BE ENTERED AGAINST YOU. (3) The date of service of this rule if service was bY.-mciil is',the date of mailing. ,19_. _e' Date: Signature of f'rotJJot.-y or Deputy AOPC 312-84 (;Outli f~l...c ",.0 i;i '=~i..cu wn.~. ?i~O'n"wo~~OYA.'R'l :i,,"'kiiillol!kl~"'!~'ii'J\i" ,,' ,-'",,,~ '__'" '";d .".;'> :",'" ,~~'!j:\1;~I,,!i'.~1;i'Ii',;'''''' .'". '"c",j,-t"i:i',dI~t. 'll~l't,jjji;!";"",-,>lrl"', ':~;'j~,,,,;;Jt~I4'~#~~lRlfi!lI!tJ tt~"mi'0~}Ni'''''fi1-<,"',~''kjm,~'.- ~~; ."-<!o<. ~ ,~'~' ~ ,- ~ _.,.J,...-'" PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (10) DA YS AFTER filing the notice ot appeal. Check applicable boxes) COMMONWEALTH OF PENNSYLVANIA COUNTY OF ; 5S AFFIDAVIT: I hereby swear or affirm that I served r:la copy of t,he Notice, of Appeal, comm08 Pleas No, , upon the District Justice designated therein on (dare of service) , 19~ 0 by personal service .,0 by (certified) (registered), mall"sender's receipt attached hereto,and upon the appellee, (name) , : '., ,on , 19 n by personal service 0 by (certified) (registered) mail. sender's receipt aUached hereto, , " , ',', ':--"",' < -, " " o and further thatl served the Rule to File a Complaint accompanying the abq.ye,,NOtlce of Appeal~pon th,'; appeU"I"sjIO",hom' the Rule was addressed on , '19_ 0 by persona' service 0 by (certified) (registered) mall, sender's receipt aUached hereto, SWORN (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS DAY OF ,19_ Signatl.lre, of affiant Signature of official before whom affidavit was made Title of officiai My commission ~xpir.es on ,'9~. -bo -l'Q. 7[R ~~~ :It::. r~ () ~., 'D v, .\) c.-, iJ':::::- I 1 ) :j ~ ~ ~ 1.1" -Z. o C 7 ~~. vCD mrn 2"'J: zr=! CO"" ..-<E' ~<:, ::t;:.....-.., 7l~, :>:::=0 )>C; ~ -< o o -" 'f71- CD t") -;'} :no ::l~ S 1'0 CO ril'fJJ' ::F;C9 ~-:.~e) ~'i.~i':~J ,}5~~ :):;! ;J;) -< .Ii ._--~_._------------------~------------, ~_J - - 09-3-03 'Sf NOTICE OF JUDGMENTITRANSCRIPT CIVIL CASE PLAINTIFF: NAME and ADDRESS 'BOYER, JR., WILLIAM E I 7475 SPRING RD. SHERMANS DALE, PA 17090 L ~ VS. ,., . COMMONWEALTH OF PENNSYLVANIA COUNTY OF: CUMBERLAND Mag. Dlst. No.: OJ Nl1me: Hon. SUSAN K. DAY A""'''229 MILL STREET, BOX 167 MT. HOLLY SPRINGS, PA T"'","" (717) 486-7672 DEFENDANT: NAME and ADDRESS 'HARBOLD, RONALD E 6820 SPRING RD. RECEIVED N SHERMANS DALE, PA 17090 S'l'BTLER & GRlilBI L JAM 1 9 2000 Docket No.: CV-0000225-99 e Filed: 9/09/99 7405 ~ "~"'.'."- ~ 17065 I ATTORNEY DEF PRIVATE : WALTERA. TILLEY, III 138 E. MARKET ST. P.O. BOX 2588 YORK. PA 17405 M . RKET S 138 EAxS~58r;"ORK. PA 1'.O.BO 't THIS IS TO NOTIFY YOU THAT: Judgment: [i] Judgment was entered for: (Name) [i] Judgment was entered against: (Name) ...l"OR..DRFF:NDlINT . R'lU~'ROT.n, RONlt.T.n 'R ~OVRR, ,TR . WTT.T.TlI.M R in the amount of $ 00 on: (Date of JUdgment) 1/14/00 o Defendants are jointly and severally liable. o Damages will be assessed on: (Date & Time) O Amount of Judgment Subject to Attachment/Act 5 of 1996 $ Amount of Judgment $ .00 Judgment Costs $ , .00 Interest on Judgment $ .00 Attorney Fees $ .00 Total $ .00 Post Judgment Credits $ Post Judgment Costs $ ------------ ------------ Certified Judgment Total $ o This case dismissed without prejudice. o Levy is stayed for days or 0 generally stayed. o Objection to levy has been filed and hearing will be held: UatlO: m -".. " ,., ..'_. .. Place: Time: 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 PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. .' " Da.te , District Justice ".' ',' . ,.c ..... ", --:- "'.,, ,I certify that this is a true and correct copy of the record of. the proceedings containing the judgment. Date' . , District Justice My commission expires first Monday of January, 2004 Aope 315.99 SEAL COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS Cumberland County JUDICIAL DISTRICT NOTICE OF APPEAL fROM 09-3-03 DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. .2000 - cf( NOTICE OF APPEAL Notice is gi'len that the appellant has filed in the above Court 01 Common Pleas an appeal lrom the judgment rendered by the District Justice on the dale and in the case mentioned below. NAME OF APPELlANT MAG. DISr. NQ OR NAME OF D.J. WilliamE. Bo er Jr ADDRESS OF APPELlANT CITY Susan K. Da STATE ZIP CODE 7475 Spring Road DATE OF JUDGMENT IN THE CASE OF (Plaintiff) Shermansdale, PA 17090 (Defendartt'P 1-14-00 Q.AIM NO Boyer ~ Harbold SIGNATURE OF A ELLANT OR ~NEY OR AGENT 67 I CJw~ J UlAi '- . , :.),. No. ~ Ifappellant was CLAIMAN (see Pa. R.GP.JP. No. 1001(6) in action before District Justice, he MUST FILE A COMPLAINT within twenty (20) days after filing his NOTICE of APPEAL. CV 12 0000225-99 , LT 19 This block will be signed ONLY when thisJlali>tionisrequire<l under Po. R.c, 10088.' , This "Notice of ,Appeal, w~ received by' the' District Justic'e, will operate as a SUPERSEDEAS 10 the judgment for possessitin in this case. Signature of Prothonotary or Deputy PR~~CIP~ TOEII!TER,"OLE TO FILE CON\PL~I,.,.T AND RULE TO FILE -"., -- (This se<;tion of form to be used ONLY when appellant was DEFENDANT (see Pa. R.CP.JP.No. 1001(7 J, /n act/on before D/suict Justice. IF NOT USED, detach from copy of notice of appeal to be seNed upon appellee). PRAECIPE: To Prothonotary Name of appelfee(s J ,appellee(s), td'liie a complaint in this app,eal Enter rule upon (Cammon Pleas No. ) within twenty (20) days after service of rule or suffer entry 01 jUdgme<)\ 'of non pro~ ;i:::.;!,; :i-;r.L,'::;;.'i " ~,,;;~:;.'), W~~ot'~/kin{.'o(~'biS,~,~ey or agent Name<of appell(Je(s) , appellee(s), ,..,' . RULE: Ta (1) You are I1()tified tliat a rule is hereby enlered upon you 10 file a complaint in this appeal within twenty (20) days aller the date 01 service of this rule upon you by: personal service or by certified or registered maiL (2) II yau do not file a cQmplaint within this time, a JUDGMENT OF NON PROS WILL BE ENTERED AGAINST YOU. (3) The date af service 01 this rule il service was by mail is the dale 01 mailing. Date: ,19_. Signature 0/ Prolhonotary Of Deputy AOPC 312-84 COURY FiLE ...,= -..,.".~~, __~_d- -,~--"~,"_. ." ,",,",'. .-..--..-... .--- . ~I PROOF OF SERVICE OF NOTICE OF APP~AL AND RULE TOFILE COMPLAINT (This proal 01 service MUST BE FILED WITHIN TEN (10) DA YS AFTER filing the notice 01 appeal. Check applicable boxes) COMMONWEALTH OF PENNSVLVANIA COUNTY OF y~ ; 58 AFFIDAVIT: I hereby swear or affirm that I s"rved o a copy of the Notice of AEJl.eal, Common Pleas No,' dDO - '0 'c. , upon the District Justlcedeslg'naIed therein on (dateol service) , ~ l,. 1/ ,~o. ~ ., bypersol}aj service. ,0 by (certified):(registe,,,;d) mail, sender's receIpt llllached hereto, and upo9-the appellee, (name) l~o~C" A ' H c ~~IIJd. ,. .,'.' '" . ' ,on , ,."" ,re\;,p, ,:<l.ClUo Vl'bypersonal service 0 by (certified) (registered) mail,sender's receipt aUached hereto, o ~nd !urtherthat I served the Rule to File a:Complaint accompanying the above ,Notjce,of Appeal upon th.e,.appeUee:~,~) ~O.Whom! the Rule was addressed on , 19_ 0 by personal service 0 by (certified) (registered) mail, sende'r's receiptattached'hereto. SWORN (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS /</U DAYOF'-7~. ,19 ,2.....0" t fJJay' OIOA pgL S~gnat'!.r8 of affiant, My ~omm.ssion ,ex~.i,res on .19--,-. Notarial Seal . ".J)~na p, KOQ!)~, Notary Public , .'.' York, York County My Commission Expires July 21, 2003 () c:: ?' ~ ""OO:J rnp-: 2~~j (n o:::;."~ -<-'- r:::;:.C.':,: ~~~ Z --1 -< o .:;;::> '-'ry 'c f'i'" en 0" o 71 :-1 ' 2~i ;tl" ~.:Q$ ::~i~~ ,,-,:;;~,~~ t~) ,----' -i )> :0 --< ,~, ~'" Uj . "" "',~.. ~ j , ",. 1., .U, L 'ij ,j , ,~"",",,,' ,,-' . ' " ".' ,Y"",,;, ",0," <~"" c'" ,,',- ",,-'.'. '"^ ",' '''.:'I,~> ' IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY PENNSYLVANIA , , William E, Boyer, Jr., Plaintiff No. 2000-809 Civil Term v, Appeal from District Justice Judgment Ronald E. Harbold, 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. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 Tele: 800-990-9108 ..1 ~, ' Co" ^ -", " ,'~ ;.- '.".'"'- _ ~ _.-,_"",-"," "'_on.' ',', ., '_'"~, ,_ ,'..""~,~_L .,iT,', ''-;:';0 r;;~'~-'"J':_" A VISO LE RAN DEMANDADO A USTED EN LA CORTE. Si usted quiere defenderse de estas demandas expuestas en las paginas signuientes, usted tiene viente (20) dias de plaza al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita 0 en persona 0 por abogado y archivar en la corte en forma escrita sus defensas 0 sus objeciones a 1as demandas en contra de su persona. Sea avisado que si usted no se defiende, 1a corte tomara medias y puede entrar una orden contra usted sin previo aviso 0 notificacion y por cualquier queja 0 alivio que es pedido en la peticion de demanda. Usted puede perder dinero 0 sus propiedades 0 otros derechos importantes para usted. LLEVE ESTA DEMAND A A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VA Y A EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUY A DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 Tele: 800-990-9108 il' "" ""_'~~1;_"..\"___", " :", ~', ,.: ":----.,,.. ,-,;,'"^--,;,~,, - -'. L__,::, ",' .<, "'. h.Li IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYL VANIA William E. Boyer, Jr., Plaintiff No. 2000-809 Civil Term v. Ronald E. Harbold, Defendant Appeal from District Justice Judgment Jury Trial Demanded COMPLAINT AND NOW, this 29th day of February 2000, comes the Plaintiff, William E. Boyer, Jr., by his attorneys, Stetler & Gribbin, who file this Complaint against Defendant, Ronald E. Harbold, on the following grounds: 1. Plaintiff, William E. Boyer, Jf., is an adult individual, residing at 7475 Spring Road, Sherman's Dale, Pennsylvania. 2. Defendant, Ronald E. Harbold, is an adult individual, residing at 6820 Spring Road, Sherman's Dale, Pennsylvania 17090. COUNT I - BAILMENT 3. On June 9, 1997, the vehicle of Plaintiff, William E. Boyer, Jr., required towing. 4. On June 9, 1997, Plaintiff, William E. Boyer, Jf., contacted Defendant, Ronald E. Harbold, of Ron Harbold's Towing, 6820 Spring Road, Sherman's Dale, Pennsylvania 17090, who owned a tow truck, to transport the Plaintiff's vehicle. 5. Defendant, Ronald E. Harbold, offered to tow the vehicle of Plaintiff, William E. :1 Boyer, Jf., for the sum of fifty ($50.00) dollars. 1 II ,I I' i'- 1 ii -< - .. ~ , ~ --,' c.._'- ."'~ ~' _ ~'n_ - -" '0. ~',';,.C. -^.~' ,,' ',2 I:, '~ '~ 6. Plaintiff, William E. Boyer, Jr., in reliance upon the offer of Defendant, Ronald E. Harbold, refrained from contacting another tow operator who would have the ability to tow his vehicle safely. 7. On or about June 9, 1997, Plaintiff and Defendant entered into an oral contract whereby Defendant agreed to perform certain services for Plaintiff: a. Defendant would attach the motor vehicle to his tow truck so that it could be moved. b. Defendant would then tow Plaintiff's vehicle to a garage for repairs. c. Defendant would unhook and leave motor vehicle at agreed upon garage for servicing. 8. The cost of the towing service was to be $50.00 for the labor and transportation which Plaintiff agreed to pay. 9. Defendant, Ronald E. Harbold, had sole possession of the vehicle of Plaintiff, William E. Boyer, Jf., at all times while towing the vehicle. 10. Plaintiff then and there left his motor vehicle in Defendant's care, custody, and control with the understanding that Defendant: a. Would attach the Plaintiff s vehicle to Defendant's tow truck; b. Would tow Plaintiff's vehicle to the agreed upon repair site; c. Would do no further damage to Plaintiff's vehicle. 11. The vehicle of Plaintiff, William E. Boyer, Jf., was damaged while in the possession of Defendant, Ronald E. Harbold. 12. Defendant, Ronald E. Harbold, refused to pay damages in the amount of four thousand seventy-seven dollars and thirty-two cents ($4,077.32). 2 \(; . , ,~ " . ., "';' .; ': ,,'"" .. ,","". ,~",; ,";~"--~_.' e' .--"-,,,,~ "0' , .",.1.: ^,' ."' 13. Defendant, Ronald E. Harbold, never offered to repair the vehicle of Plaintiff. 14. The damaged condition of the vehicle constitutes a breach of the implied covenant. 15. As a result of Defendant's failure to perform as originally agreed, Plaintiff was required to have repairs made and was required to pay the sum of $4,077.32 which was the fair and reasonable cost thereof. 16. Plaintiff made demand upon Defendant for the sum of $4,077.32, being the cost of repairs but the Defendant has refused to pay the sums demanded or any part thereof. WHEREFORE, Plaintiff, William E. Boyer, Jf., respectfully requests entry of judgment in his favor and against Defendant, Ronald E. Harbold, for the total sum of $4,077.32, plus costs for damage to Plaintiff s personal property while in the possession of the Defendant as bailee. COUNT n BREACH OF CONTRACT 17. Plaintiff incorporates the allegations and facts set forth in paragraphs 1 through 16 above, as if here set forth at length. 18. At all times relevant to this lawsuit, Defendant maintained a contract with Plaintiff to provide towing services for Plaintiff's motor vehicle. 19. As part of that contract, Defendant held himself and his towing services out as provident a competent and safe transporter of motor vehicles from one location to another. 20. Defendant breached the implied duties of the contract with Plaintiff by committing one or more of the following acts or omissions: a. Failing to provide and maintain proper towing apparatus for a vehicle such as that owned by the Plaintiff; 3 1 " ! ; , " ! l I , I , , I , " ~, ,;, - , . -~ ~', .', -- {--~" ,"I>", -i'_- ~[ b. Failing to take reasonable care of the property of Plaintiff; c. Returning the property of the Plaintiff in a damaged condition. 21. The damaged condition of the vehicle constitutes a breach of the implied covenant. WHEREFORE, Plaintiff, William E. Boyer, Jf., respectfully requests this Honorable Court to enter judgment in his favor and against Defendant, Ronald E. Harbold, for damage in the amount of $4,077.3 2 plus costs of suit as a result of damage to Plaintiff's personal property while in the possession of the Defendant for breach of contract and for breach of quasi contract, plus costs of suit. Respectfully submitted, STETLER & GRIBBIN Dated: 2~2..q-OO By: cn'~l-- ~ Glo 1 na Noreika aenner, Esqu re Sup e Court No. 55793 13 8 East Market Street PO Box 2588 York, PA 17405-2588 (717) 854-9506 Attorneys for Plaintiff 4 " "', --;', ...;;,' - :' ,--,', ";',' "",:";">,:--;,",,',j,",-;,',,,,,:",,~ ,~ - VERIFICA nON I, William E. Boyer, Jr., state upon personal knowledge or information that I believe to be true that the facts in the COMPLAINT, are true. I understand that false statements herein are made subject to the criminal penalties of 18 Pa. C.S. Sec. 4904, relating to unsworn falsification to authorities. Dated: '3./ J ~ - ()() 'Jf~ f~ a William E. Boyer, Jf. ' 1 ~ -'~~S<~k"""~i";;;'''''''''B''"""~_'''''''"~_;[~'''''~~~~~-~''''--tl.,>...,.--...,,,~_~ffi~~-.!L~,~!~~~!~I~iI{",,,,,,,,:,,-,,,;,;"";.'ili!,'f''''\'' . . '6 en '"' '" - t" l' :;: ~ '"' ." m t"' rn ;ll ~ 0 t" Z 0 '" ::<l li ~ ~ ~ ~ ~ ~ Vi &l ~ l)l "' )- 0 z: ~ -l ;; ;: ~ S; ::<l - i1 ~ ~ I:ll 0 I:ll '" - Z ~ D () 0 0 ~~ ~ ~ c 0 "h s:. :x .... ~-o "'OQJ ". ;L..~ mr"'i1 ;;0 ." ,,~ z:o I ']8 - &is; - O. ~ ;a,~ ~ ~ t; C'!:L ~ t:;/ ~ ~o ~o -0 ~c ~ ::P' ::s: is ., UI ::?~ --:P 6~ "" ~ ':",',~,R.: ". ,- . , IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA William E. Boyer, Jr., Plaintiff No. 2000-809 Civil Term v. Appeal from District Justice Judgment Ronald E. Harbold, Defendant Jury Trial Demanded PRAECIPE TO REINSTATE COMPLAINT TO THE PROTHONOTARY: Please reinstate the Complaint in the above-captioned action. Respectfully submitted, STETLER & GRIBBIN Dated: 2.~ YviMJ, I 2.000 BY: ''',',,,"-' w "' 'lllI/!.~~ "". ~:~t :S~ "'i ,^:% ,,', "r ~t. "Ie it \ l l r!- I g 0 C> 0 C C> '"j"t :s:: ::!:: "~ -QD ;:'''' ;~~::D rnn~ ;:0 . '-" Z:x; N ~~:~ t? SQ~~ \.0 ;~~ r:::C; -n ~,C) -~~ =0 r:? -;.::;;::;fl\ ):>C ~ ~ '" ):> :0 c:::> '-< ""= - ,--;~, ;I~~ SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2000-00809 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BOYER WILLIAM E JR VS HARBOLD RONALD E R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: HARBOLD RONALD E but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of PERRY County, Pennsylvania, to serve the within COMPLAINT & NOTICE On .March 31st , 2000 , this office was in receipt of the attached return from PERRY Sheriff's Costs: Docketing Out of County Surcharge Dep. Perry County 18.00 9.00 10.00 23.84 .00 60.84 03/31/2000 STETLER & GRIBBIN S.~o anfz, / ~-;/7 ~_'3P>.are ~/ R.Thomas Kline - Sheriff of Cumberland County Sworn and subscribed to before me this t, ~ day of ~ :<<rr>-o A.D. C)'r-"- Q.. fnJPj,"-'. A ~~~' Prothonotary ,.1 , '~\i' 'I, \ . . In The Court of Common Pleas of Cumberland County, Pennsylvania William E. Boyer, Jr. VS. Ronald E. Harbold No. 20-809 Civil Now, 3/6/00 ,2000, I, SHERIFF OF CUMBERLAND COUNTY, P A, do hereby deputize the Sheriff of Perry County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. ~~~'~~'9 Sh~rrfofCrun ~landCounry,PA Affidavit of Service Now, flkrvn 9.9 , 20~, at q:/fO o'clock II- M. served the upon /lJo17(e 'I- Cem.f/tt.n+ .frnA/Al.tJ . E. !J/Jt.8ot.() within at (gq,;).o 5pr'<nO~J~IllM1Sd...k, Po.. CAfL/!..oLL 77JwlJfJ f+.~f -PE#(j COttN'tfPA byhandingto HELEN }Jfi,/lJool-{J ~ DI2FI?/J[)fJ./J'/5 w;ff. a '("Ii.<< E v A Ttes re.p . copy ofthe original N~Ttc'" 'l- C6MfJLlJ.I^)'r and made !mown to /+E f< the contents thereof. So answers, $L~ ~(1 Sheriff of . 6 Counry, PA Sworn a.c'1d ~ubscribed before me this _d'JdJ dayof~(;:.fI , 20~ 17 . oJ Jll' II . II tt.~4;~'t -r' f-;.;(,d2.v.~ \., . 7bvp' ';'. r-rt-F - tl(lll\HlAl;;tJ\l '1lIlC IlARGAREl F. FL\CIlltlGER,NOTARV~ BlOOMFiElD BORG., PERRY COU MMISSION EXPIR FEB. 16 2004 COSTS SERVICE I'D. ob MILEAGE 3,q;1f AFFIDAVIT J,vOD $ d-3.'6~ $ . "" "'" a..... IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYL V ANlA William E. Boyer, Jr., Plaintiff No. 2000-809 Civil Term v. Appeal from District Justice Judgment Jury Trial Demanded Ronald E. Harbold, Defendant NOTTCE TO PLEAD TO: William E. Boyer, Jr. C/O Gloriana Noreika Maermer, Esquire 138 East Market Street P.O. Box 2588 York,PA 17405-2588 Attorney For Plaintiff YOU ARE HEREBY notified to file a written response to the enclosed Preliminary Objections within twenty (20) days from service hereof or a judgment may be entered against you. Date: 4/17/00 BATURIN & BATURIN By: ~r"\. ~ Madelaine N. Baturin, Esquire Attorney 1. D. No. 68971 717 North Second Street Harrisburg, P A 17102 (717) 234-2427 Attorney for Defendant - " lM1!'.: IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA William E. Boyer, Jr., Plaintiff No. 2000-809 Civil Term v. Appeal from District Justice Judgment Jury Trial Demanded Ronald E. Harbold, Defendant DRFRNDANT'S PRRUMTNARY OR.TRCTIONS TO PT.AINTTF'F'S COMPT.AINT TO THE HONORABLE, THE JUDGES OF SAID COURT: AND NOW, to wit, this 17th day of April, 2000, the Defendant, acting through his attorneys, the Law Offices ofBaturin & Baturin, without admitting or acknowledging any of the averments set forth in the said Complaint to be true, in such marmer and form as the same are alleged, and without answering thereto, reserving unto the said Defenda the right to file an answer in accordance with Pa.R.C.P. 1017, makes Preliminary Objections in the nature of: I. LACK OF TIJRTSDTCTTON PIJRSlJANT TO Pa R C P 1 028(a)(1) 1. Plaintiff s Complaint fails to aver how this Honorable Court has jurisdiction over the Defendant, Ronald E. Harbold or the Plaintiff; there is no indication in which county the Plaintiff or Defendant reside. 2. Plaintiffs Complaint fails to properly aver how this Honorable Court has jurisdiction over the subject matter ofthis complaint; the Complaint does not state the location or county where any of the alleged activities or damages took place or occurred or where the alleged oral - ~, '1r- __-~,~~- ~, ~ ~~ ~~ " J ~, contract was entered into. WHEREFORE, the Defendant respectfully requests that this Honorable Court dismiss the Plaintiffs Complaint with prejudice. II. FAILlTRE OF PLEADING TO CONFORM TO LA W OR RULE OF COTTRT P!TRSUANT TO Pa R C P 102R(a)(2) 3. Plaintiff failed to properly caption the Complaint pursuant Pa.R.C.P. 1018.1; there is no indication on the caption of the Complaint what form of action the Plaintiff filed. 4. Plaintiff failed to state whether the amount claimed for in the Complaint exceeds the jurisdictional amount requiring arbitration in Cumberland County in violation ofPa.R.C.P. 1021(c). WHEREFORE, the Defendant respectfully requests that this Honorable Court dismiss the Plaintiff's Complaint with prejudice. III. INS! JFFTCTRNT SPECIFICITY IN PI .EA DING PITRSUANT TO Pa R C P 1028(a)(3) 5. Averments 7(a) - (c) and lO(a)-(b) of Plaintiffs Complaint fail to specifically aver the time and place and location of when and where the alleged towing took place. 6. Averment 11 of Plaintiffs Complaint is vague and does not provide enough specific information for the Defendant to prepare an Answer to same. The Complaint failed to specifically aver the damages pursuant to P A.R.C.P 1019(t). ~ ~ '*", I ,< .....~"" 7. Averments 12, 14, 15, 16, and 20 of Plaintiffs Complaint are vague and do not provide enough specific information as to the damages for the Defendant to prepare an Answer to same WHEREFORE, Defendant respectfully request that this Honorable Court dismiss the Plaintiffs Complaint with prejudice. IV. LEGAL INSIJFFTCTENCY OF A PLEADING 8. Plaintiff has failed to allege the averments necessary to allege a cause of action against the Defendants for bailment. 9. Plaintiff has failed to allege the averments necessary to alIege a cause of action against the Defendants for a breach of contract. 10. Plaintiff has failed to aver any specifics of and of an agreement itself and between the Plaintiff and the Defendant to enter into a contract. WHEREFORE, the Defendant respectfully requests that this Honorable Court dismiss the Plaintiff s Complaint with prejudice. RespectfulIy submitted, BATURlN & BATURIN By: (fh..}-. frI. ~ Madelaine N. Baturin, Esquire Attorney LD. No. 68971 717 North Second Street Harrisburg, P A 17102 (717) 234-2427 Attorney for Defendant Date: April 17, 2000 j~' " ~, " .......... "___.ri" VERTFTCATTON I VERIFY THAT THE STATEMENTS MADE IN THE FOREGOING PRELIMINARY OBJECTIONS ARE TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE, BELIEF AND INFORMATION. I UNDERSTAND THAT FALSE STATEMENTS HEREIN ARE MADE SUBJECT TO THE PENALTIES OF 18 PA.C.S. SEC. 4904 RELATING TO UNSWORN FALSIFICATION TO AUTHORITIES. "", '." u< -" - L ~" ~i IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA William E. Boyer, Jr., Plaintiff No. 2000-809 Civil Term v. Appeal from District Justice Judgment Jury Trial Demanded Ronald E. Harbold, Defendant CRRTIFICATR OF SRRVICR I, Madelaine N. Baturin, Esquire, of the law firm of Baturin & Baturin, hereby certify that I served a true and correct copy of the Preliminary Objections of Defendants Ronald Harbold, by depositing same in the United States Mail, Harrisburg, Permsylvania, by Certified Mail-Return Receipt Requested, postage prepaid, addressed as folIows: TO: William E. Boyer, Jr. C/O Gloriana Noreika Maermer, Esquire 138 East Market Street P.O. Box 2588 York, PA 17405-2588 Attorney For Plaintiff Date: 4/17/00 Respectfully submitted, BATURIN & BATURIN By: ~,,~/. Madelaine N. Baturin, Esquire Attorney l.D. No. 68971 717 N. Second Street Harrisburg, P A 171 02 (717) 234-2427 Attorney for Defendant , 'I' ,,' ", '~" ," "'.', , ~', ' ","""~"""":'",,,',,r ',C', """"",,,~"I';,o'_~,o;,-";'__,: ''.-' ,', "I ,~ ~ IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA William E. Boyer, Jr., Plaintiff No. 2000-809 Civil Term Civil Action - Law and Equity v. Appeal from District Justice Judgment Ronald E. Harbold, Defendant Jury Trial Demanded PRAECIPE FOR THE ENTRY OF APPEARANCE TO THE PROTHONOTARY, Curtis R. Long: Please enter the appearance of David Mills, Esquire of the law firm of Stetler & Gribbin as attorney for Plaintiff. Respectfully submitted, Dated: cXf avi ills, Esq re Supreme Court No. 7192 138 East Market Street PO Box 2588 York, PA 17405-2588 (717) 854-9506 Attorneys for Plaintiff I II II 'i. ,,--~''''''; ----, ,.'",'. " "','","' ,,~C', ~L':~ _'"' <:'0", L::<;,;~~"~ "-i~; CERTIFICATE OF SERVICE I, David Mills, Esquire, hereby certify that I served a true and correct copy of the foregoing PRAECIPE FOR THE ENTRY OF APPEARANCE by first-class mail, postage prepaid on the following: Madelaine N. Baturin, Esquire Baturin & Baturin 717 North Second Street Harrisburg, PA 17102 Dated: avid Mils, Esqu Supreme Court No. 192 13 8 East Market Street PO Box 2588 York, PA 17405-2588 (717) 854-9506 Attorneys for Plaintiff 1 Ii II I ,I " I , , :! II Ii Ii 2 , J.I :L ~["'''~O::~~::;;;;:~~t~~''''J''~~''~''"''*-''~F'''''''~;~'~~~':':''~''~'''' "'-' , 1i'l'~"'il'"'- ~~"~~~'-- -I ',;hq""-1"",,,"',"^,-...,:;,"_...."''''"'''''''.'''M;i-'''''''''''.''H.'''''''_'''''''''~1!l - ~i. J.';a!iflj; ~.." . . ~ , . '" 'd ..., t<l ,. W ~ ..., l' 00 ." m t'" "' " ~ 0 t<l z P ~ :<l z ~ ~ ~ ii "' ~ !< ~ ~ N ~ ~ 0 ~ ~ ;: ~ ~ :<l - j;! m tll ~ tll 0 - "' Z ~,;; o C;; ""--'. -0 C\. 1 q) ~;,~ 7T (f) ".':,: ~C:, ~~~ ?:l -<C c....~ C) ..",. ;;",..:.1 ::;::-'J i:-} :'1': ~..) "0 ')I~~} . ~ l ,"' ~:;J'. r:'2 -_::,(-'-1 ?:~~ :i~ -"- (;:) "r.',< '. , ,,~,' J; .',.' "",.'.' .',-' ~''"' :',~ -",;. ~', ".0.',,: ; :, ,';' ,.- ,':' '~ '~''''.f'''' "{J""~'~"';~~ j;;:,,:;ll;: .,~; '.. ' ~- IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA William E. Boyer, Jf., Plaintiff No. 2000-809 Civil Term Civil Action - Law and Equity v. Ronald E. Harbold, Defendant Appeal from District Justice Judgment Jury Trial Demanded AMENDED COMPLAINT AND NOW, this 5th day of May 2000, comes the Plaintiff, William E. Boyer, Jr., by his attorneys, Stetler & Gribbin, who file this Amended Complaint against Defendant, Ronald E. Harbold, on the following grounds: 1. Plaintiff, William E. Boyer, Jr., is an adult individual, now residing at 13 Grandview Drive, Duncannon, Dauphin County, Pennsylvania. 2. Defendant, Ronald E. Harbold, is an adult individual, residing at 6820 Spring Road, Sherman's Dale, Perry County, Pennsylvania 17090. COUNT I - BAILMENT 3. The allegations of fact in Paragraphs 1 and 2 are incorporated herein by reference thereto. 1 ", q' - -",'~,'''''i,,,-<, ".'\ .,,_ D::';:~,,,, ",.{",..;..;;,~,'" ," ,,; -''-""'~,I--.,,,:_,,'.>:,:"', "~j 4. On June 9, 1997, the vehicle of Plaintiff, William E. Boyer, Jr., required towing <It its location at Deer Lane and Wertzville Road in Mechanicsburg, Cumberland County, Pennsylvania. 5. On June 9, 1997, Plaintiff, William E. Boyer, Jr., contacted Defendant, Ronald E. Harbold, of Ron Harbold's Towing, 6820 Spring Road, Sherman's Dale, Pennsylvania 17090, who owned a tow truck, to transport the Plaintiff's vehicle. 6. Defendant, Ronald E. Harbold, agreed to tow the vehicle of Plaintiff, William E. Boyer, Jr., for the sum of fifty ($50.00) dollars. 7. Plaintiff, William E. Boyer, Jr., in reliance upon the offer of Defendant, Ronald E. Harbold, refrained from contacting another tow operator who would have the ability to tow his vehicle safely. 8. Defendant, Ronald E. Harbold, had sole possession of the vehicle of Plaintiff, William E. Boyer, Jr., at all times while towing the vehicle. 9. The contract of hiring contained an implied covenant that Defendant, Ronald E. Harbold, will take reasonable care of the property hired. 10. The vehicle of Plaintiff, William E. Boyer, Jr., was damaged on State Route 944, Wertzville Road, Cumberland County, Pennsylvania, while in the possession of Defendant, Ronald E. Harbold. 11. Defendant, Ronald E. Harbold, never offered to repair the vehicle of Plaintiff. 12. Defendant, Ronald E. Harbold, refused to pay damages in the amount of four thousand seventy-seven dollars and thirty-two cents ($4,077.32). 13. The property was returned to Plaintiff, William E. Boyer, Jr., in a damaged condition due to the actions and omissions of Defendant, Ronald E. Harbold. 2 ,il -'", ,."'. "'. , ,',~" _' ~"".,",'^"' '--" ;"'" . nc ,,'"--Co: :;""':,;,,.0 '_',..<,~__. ,"';:" "-',. ~:'. ~': 14. The damaged condition of the vehicle constitutes a breach of the implied covenant. WHEREFORE, Plaintiff, William E. Boyer, Jf., respectfully requests this Honorable Court to enter judgment in his favor and against Defendant, Ronald E. Harbold, in an amount that does not exceed the limits of Arbitration in Cumberland County, Pennsylvania, plus costs. COUNT n - BREACH OF CONTRACT 15. The allegations of fact in Paragraphs 1 through 14 are incorporated herein by reference thereto. 16. Defendant, Ronald E. Harbold, held out himself and his towing services, Ron Harbold's Towing, as providing competent and safe transportation of motor vehicles from one location to anothef. 17. On or about June 9, 1997, Plaintiff, William E.Boyer, Jf., and Defendant, Ronald E. Harbold, entered into an oral contract in which Defendant agreed to perform services for Plaintiff, including: a. Attach the Plaintiff's vehicle to Defendant's tow truck.. b. Tow the Plaintiff s vehicle to a garage for repairs. c. Unhook and leave the Plaintiffs vehicle at a garage for service. 18. The cost of the towing service was $50.00 for the labor and transportation, which Plaintiff, William E. Boyer, Jr., agreed to pay. 19. Plaintiff, William E. Boyer, Jr., in reliance upon the offer of Defendant, Ronald E. Harbold, refrained from contacting a tow operator who had the ability to tow the vehicle safely. 3 ,-,,"< cCC '.~"~ _ _', ~'._ c',. "" c",~'"'~,,,;,;,~,", ':",. ~'''; ,-' '",-",",'~';",,"'" -' --'I~'\i:'" 'I ~ 20. At all times relevant to this lawsuit, Defendant, Ronald E. Harbold, maintained a contract with Plaintiff to provide towing services for Plaintiff's motor vehicle 21. Defendant, Ronald E. Harbold, breached the contract with Plaintiffby: a. Failing to provide and maintain a proper towing apparatus for Plaintiffs vehicle; b. Failing to do no damage to the Plaintiff's vehicle; c. Returning the Plaintiffs vehicle in a damaged condition. 22. Defendant, Ronald E. Harbold, refused to pay Plaintiff, William E. Boyer, Jf., for repairs of the damage to the vehicle in the amount of Four Thousand Seventy-seven Dollars and Thirty-two Cents ($4,077.32). WHEREFORE, Plaintiff, William E. Boyer, Jf., respectfully requests this Honorable Court to enter judgment in his favor and against Defendant, Ronald E. Harbold, in an amount that is less than the jurisdictional amount for compulsory arbitration in Cumberland County, Pennsylvania, plus costs. Respectfully submitted, Dated: DaVid Mills, Esquire Supreme Court No. 371 13 8 East Market Street PO Box 2588 York,PA 17405-2588 (717) 854-9506 Attorneys for Plaintiff, William E. Boyer, Jr. 4 i. _. ~ , ," .' '.,'. ,,', ;. ',<, 'C,'.___ .'C" ,~'..' ~ .n ,'"-.,', c.,j ;., '~c" ;'" ;.:\:~; ,,: ~,,,,,' l, ,';;' >, ,', . ,'. '0 ,;' ;""r ~:,:I~ ' ," ".:' ',_, ~ VERIFICA nON I, David Mills, verify that William E. Boyer, Jr., is believed to be outside the jurisdiction ofthe Court and the verification of him cannot be obtained within the time allowed for the filing of the AMENDED COMPLAINT. This verification is made upon information that was contained in the previous Complaint and notes in the file that prior counsel, Gloriana Noreika Maenner, Esquire made before her absence due to maternity leave. I understand that false statements herein are made subject to the criminal penalties of 18 Pa, C.S. Sec. 4904, relating to unsworn falsification to aut orities. Dated: ~ I ~" ,~, '^""";,"'C:'h'~ ,'.." v"'"" '" - > ',i'C "', ',' : ,,'--J ,_.~,' ~'~.'''.''''~ . CERTIFICATE OF SERVICE I, David Mills, Esquire, hereby certiJy that I have served a true and correct copy of the foregoing AMENDED COMPLAINT upon counsel for the Defendant, by depositing a copy of same in the United States Mail, regular delivery, postage prepaid as follows: Madelaine Baturin, Esquire Baturin & Baturin 717 North 2nd Street Harrisburg, PA 17102 Dated: <6- By: DaVid Mil , Esquir Supreme Court No. 138 East Market Street PO Box 2588 York, PA 17405-2588 (717) 854-9506 Attorneys for Plaintiff, William E. Boyer, Jr. ~ """:':~'"'~'-"""~'~"'''''~ij~'"",\l!!IlI*IM,,~!*jllnt~~~:ue:,',',t.' ~~l~,':"-':'~~~!~'''Kt,<>-(, "w,~"""",,.,,,,, - " . , " . '" 6 ..., t>l " W ~ ..., ?' ~ t'" ." m '" ~ ~ 0 t>l z 9 ~ :>:l z ~ ~ ~ '" S? !< ~ ;j " ~ 2i 0 ~ ~ :;; ~ ~ :>:l - ii m to ~ to 0 - '" z i I I '0 ::.c r::- ., ~ .---\ ?~~ 00 '1-1-i-l ,<\1 g(') /.'~"rn S ".. ~ 2 :&-:: -,,,,,., u~ J.~ f\1f'''1 -7-0 ~f.: U1 ,.. :<'2'- rC ~O ,&." -) <;;;t, , r c:: ~ <.? o ::$ ? ....<: \ 0:> :::> \D ii .. .c'k, , .~,- "., ,~".--, . , ,,X,'" ."-"- .. .. , >="-,.." ~--N", " :~ .'_,,:,,1'1 i1ii<it:J~~ IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYL VANIA William E. Boyer, Jr., Plaintiff No. 2000-809 Civil Term Civil Action - Law and Equity v. Appeal from District Justice Judgment Ronald E. Harbold, Defendant Jury Trial Demanded PRAECIPE TO SUBSTITUTE VERIFICATION TO THE PROTHONOTARY, Curtis R. Long: Please substitute the attached Verification of William E. Boyer, Jr. to the Amended Complaint. Dated: Respectfully submitted, ~LE & GRIBBIN By: David Mi s, Esquire Supreme Court NO.3 13 8 East Market Street PO Box 2588 York, PA 17405-2588 (717) 854-9506 Attorneys for Plaintiff, William E. Boyer, Jf. >.-," -'-.'', <' <', ,,;,' r', ,,--',' '"" ~,,' , ;,;." :.,,,-.,..;,1;;';: ::.;..- '~~, VERIFICATION I, William IE. Boyer, Jr., state upon personal knowledge or information that I believe to be true that the facts in the AMENDED COMPLAINT, are true. I understand that false statements herein are made subject to the criminal penalties of 18 Pa. C.S. Sec. 4904, relating to unsworn falsification to authorities. Dated: II II 5 - 5 - 91 ~. 'f j '.t!:m fY~.P( {{, William E. Boyer, Jf. / 5 ~ "'~"""~,"""_og~><_~,, 'o~'''''"''''''J''"''>i'_~'~J~''''J,,,,__:,,,i;lftfd.'~'1ii#W'!I~'*_~'~I'W~~~.~'_'''~","''"'," . en 0' --l t>l ,. ~ ~ --l 1" t'" ." m " ~ 0 t>l z P .; ,. i"l z = ~ Z ~ ~ m 6iI :< ~ ~ ~ m '" Q ~ '" .; ill ~ i"l ;; ,. ~ - m tl:l i1 m .; tl:l 0 - '" Z ''>!ir~,.,-..~~. , ...."'~ c: "'" -0-- 1Tl rz1 -::;. [, I ~-'-:1 zF- Wi> -( :~": ~O ~C) "'"'0 5>C' Z :::2 '"'-~,..".........,,,,, ""'"". o <::> :x :l:lo -< :C~b ~'fl :)'1 6ilJ -om :DQ (:::6 -'r---' 9~ om. ?E. .. ""'" o -0 :x .t:"' I'V <:;) - . ~~" '--"~-~!ailm I~~ "~"<ill<-,~: IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA William E. Boyer, Jf., Plaintiff No. 2000-809 Civil Term v. Appeal from District Justice Judgment Jury Trial Demanded Ronald E. Harbold, Defendant NOTICE TO PLEAD TO: William E. Boyer, Jr. C/O David Mills, Esquire 13 8 East Market Street P.O. Box 2588 York, PA 17405-2588 Attorney For Plaintiff YOU ARE HEREBY notified to file a written response to the enclosed Preliminary Objections within twenty (20) days from service hereof or a judgment may be entered against you. Date: May 22, 2000 ::1lXAn ur- Madelaine N. Baturin, Esquire Attorney I. D. No. 68971 717 North Second Street Harrisburg, P A 17102 (717) 234-2427 Attorney for Defendant "~~",,4:J~f IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA William E. Boyer, Jr., Plaintiff No. 2000-809 Civil Term v. Appeal from District Justice Judgment Jury Trial Demanded Ronald E. Harbold, Defendant DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT TO THE HONORABLE, THE JUDGES OF SAID COURT: AND NOW, to wit, this 22nd day of May, 2000, the Defendant, acting through his attorneys, the Law Offices ofBaturin & Baturin, without admitting or acknowledging any ofthe averments set forth in the said Complaint to be true, in such marmer and form as the same are alleged, and without answering thereto, reserving unto the said Defendant the right to file an answer in accordance with Pa.R.C.P. 1017, makes Preliminary Objections in the nature of: into. I. FAILURE OF PLEADING TO CONFORM TO LAW OR RULE OF COURT PURSUANT TO Pa.R.C.P. 1028(a)(2) 1. Plaintiff failed to properly caption the Complaint pursuant Pa.R.c.P. 1018.1; there is no indication on the caption of the Complaint what form of action the Plaintiff filed. 2. Plaintiff did not sign a verification pursuant to Pa.R.C.P. 1024 and the verification -~ J' - ''"11 :J,iwUt; submitted is not acceptable pursuant to said rule. WHEREFORE, the Defendant respectfully requests that this Honorable Court dismiss the Plaintiff s Complaint with prejudice. II. INSUFFICIENT SPECIFICITY IN PLEADING PURSUANT TO Pa.R.C.P. 1028(a)(3) 3. Averments 10 fail to state how the vehicle was damaged and the extent of the damages. 4. Averment 10 fails to state on what date the vehicle was damaged. 5. Averments 12 and 13 of Plaintiffs Complaint are vague and do not provide enough specific information for the Defendant to prepare an Answer to same. The Complaint fails to specifically aver the damages pursuant to PA.R.C.P 1019(f). 6. Averment 14 of Plaintiffs Complaint is vague and does not provide enough specific information for the Defendant to prepare an Answer to same. The Complaint fails to indicate what the actions and omissions of the Defendant are. WHEREFORE, Defendant respectfulIy request that this Honorable Court dismiss the Plaintiffs Complaint with prejudice. III. LEGAL INSUFFICIENCY OF A PLEADING 7. Plaintiff has failed to allege the averments necessary to allege a cause of action , .,1 "-- ~''''''', against the Defendants for bailment. 8. Plaintiff has failed to allege the averments necessary to allege a cause of action against the Defendants for a breach of oral contract. WHEREFORE, the Defendant respectfully requests that this Honorable Court dismiss the Plaintiffs Complaint with prejudice. Respectfully submitted, BATURIN & BA~ --,t---" By: 10- Yf j(/ \ Madelaine N. Baturin, Esquire Attorney LD. No. 68971 717 North Second Street Harrisburg, PA 17102 (717) 234-2427 Attorney for Defendant Date: MaY22i 2000 .^~ " j , . I ~"",~j/ VERIFICATION I VERIFY THAT THE STATEMENTS MADE IN THE FOREGOING PRELIMINARY OBJECTIONS ARE TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE, BELIEF AND INFORMATION. I UNDERSTAND THAT FALSE STATEMENTS HEREIN ARE MADE SUBJECT TO THE PENALTIES OF 18 Pa.C.S. 94904 RELATING TO UNSWORN FALSIFICATION TO AUTHORITIES. g~~~ (SEAL) Dated: May 22, 2000 ... " ~--'"J~~k, IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA WilIiam E. Boyer, Jr., Plaintiff No. 2000-809 Civil Term v. Appeal from District Justice Judgment Jury Trial Demanded Ronald E. Harbold, Defendant CRRTIFICATR OF SRRVTCR I, Madelaine N. Baturin, Esquire, of the law firm of Baturin & Baturin, hereby certify that I served a true and correct copy of the Preliminary Objections of Defendants Ronald Harbold, by depositing same in the United States Mail, Harrisburg, Pennsylvania, by Certified Mail-Return Receipt Requested, postage prepaid, addressed as follows: TO: William E. Boyer, Jr. C/O David Mills, Esquire 138 East Market Street P.O. Box 2588 York, PA 17405"2588 Attorney For Plaintiff Respectfully subrnitted, Date: May 22, 2000 BAIV(AT~ By: 11- Madelaine N. Baturin, Esquire Attorney I.D. No. 68971 717 N. Second Street Harrisburg, PA 17102 (717) 234-2427 Attorney for Defendant ;Vt -1-.1 ,~ ~ . , , ~ _I . .""-~~' L" ,,' . ~ ~ IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA WilIiam E. Boyer, Jf., Plaintiff No. 2000-809 Civil Term v. Appeal from District Justice Judgment Jury Trial Demanded Ronald E. Harbold, Defendant DEFENDANT'S PREI ,IMIN ARY OR.TRCTIONS TO PLAINTIFF'S SECOND AMENDED COMPI,AINT TO THE HONORABLE, THE JUDGES OF SAID COURT: AND NOW, to wit, this day of June, 2000, the Defendant, acting through his attorneys, the Law Offices of Baturin & Baturin, without admitting or acknowledging any of the averments set forth in the said Complaint to be true, in such marmer and form as the same are alleged, and without answering thereto, reserving unto the said Defendant the right to file an answer in accordance with Pa.R.C.P. 1017, makes Preliminary Objections in the nature of: into. III. LEGAL TNSIJFFTCTRNCY OF A PLEADTNG 1. Plaintiff has failed to aIlege the averments necessary to allege a cause of action against the Defendants for baihnent. 2. Plaintiff has failed to aIlege the averments necessary to allege a cause of action ~. " ~ .1 ~"~""'l~ 1../ . ~ against the Defendants for a breach of oral contract. WHEREFORE, the Defendant respectfully requests that this Honorable Court dismiss the Plaintiffs Complaint with prejudice. Respectfully submitted, BATURIN & BATURIN ~/ By: Madelaine N. Baturin, Esquire Attorney I.D. No. 68971 717 North Second Street Harrisburg, PA 17102 (717) 234-2427 Attorney for Defendant Date: June , 2000 <I~~ ..dW ~~'"". ~, ,~ .-- _~W"@"""~"'" ~ IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYL VANIA WiIliam E. Boyer, Jf., Plaintiff No. 2000-809 Civil Term v. Appeal from District Justice Judgment Jury Trial Demanded Ronald E. Harbold, Defendant NOTTCR TO PLRAD TO: William E. Boyer, Jf. C/O David Mills, Esquire 13 8 East Market Street P.O. Box 2588 York, PA 17405-2588 Attorney For Plaintiff YOU ARE HEREBY notified to file a written response to the enclosed Preliminary Objections within twenty (20) days from service hereof or a judgment may be entered against you. BATURIN & BATURIN fV'vvvv1-. .' _.'"~ Date: June , 2000 By: Madelaine N. Baturin, Esquire Attorney I. D. No. 68971 717 North Second Street Harrisburg, P A 17102 (717) 234-2427 Attorney for Defendant " '~IOlI~ --. ~ ~ " ... _,~ ~.., ~, " , ~ ~~~' . -~.."" .-~I _..t~~~t-" - ' . '.. . IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA William E. Boyer, Jr., Plaintiff No. 2000-809 Civil Term v. Appeal from District Justice Judgment Jury Trial Demanded Ronald E. Harbold, Defendant CERTIFICATE OF SERVICE I, Madelaine N. Baturin, Esquire, of the law firm ofBaturin & Baturin, hereby certify that 1 served a true and correct copy of the Preliminary Objections of Defendants Ronald Harbold, by depositing same in the United States Mail, Harrisburg, Pennsylvania, by Certified Mail-Return Receipt Requested, postage prepaid, addressed as follows: TO: William E. Boyer, Jf. C/O David Mills, Esquire 13 8 East Market Street P.O. Box 2588 York, PA 17405-2588 Attorney For Plaintiff Respectfully submitted, BATURIN & BATURIN /\" _ ~_/JJ _ j/ I v vV v V L---'" ,..... Date: June , 2000 By: Madelaine N. Baturin, Esquire Attorney LD. No. 68971 717 N. Second Street Harrisburg, P A 17102 (717) 234-2427 Attorney for Defendant ,~-" ~"' , ", " ".';"'" " '0 "',;- "'~,,,, J.'" 1""-:,,. ~:"', ,',:_':,':' '" =,' IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYL VANIA William E. Boyer, Jr., Plaintiff No. 2000-809 Civil Term Civil Action - Law and Equity v. Ronald E. Harbold, Defendant Appeal from District Justice Judgment Jury Trial Demanded ANSWER OF PLAINTIFF TO DEFENDANT'S PRELIMINARY OBJECTIONS AND NOW, this ~ ~ay of July 2000, comes Plaintiff, WilIiam E. Boyer, Jf., by his attorneys, Stetler & Gribbin, who answers the Defendant's Preliminary Objections as follows: 1. The allegation is a conclusion of law to which no answer is required. :2. The allegation is a conclusion of law to which no answer is required. WHEREFORE, Plaintiff, William E. Boyer, Jr., respectfully requests this Honorable Court to overrule the objections of Defendant, Ronald E. Harbold, to the Second Amended Complaint. Respectfully submitted, David Mills, squire Supreme Court No. 371 138 East Market Street PO Box 2588 York, PA 17405-2588 (717) 854-9506 Attorneys for Plaintiff, William E. Boyer, Jr. . " ,"';:_"'k:' ",~, ic.;l,~q,,,,,j__",L .L '0,"_" _~ ' CERTIFICATE OF SERVICE I, David Mills, Esquire, hereby certifY that I have served a true and correct copy of the foregoing ANSWER OF PLAINTIFF TO DEFENDANT'S PRELIMINARY OBJECTIONS upon counsel for the Defendant, by depositing a copy of same in the United States Mail, regular delivery, postage prepaid as follows: Madelaine Baturin, Esquire Baturin & Baturin 717 North 2nd Street Harrisburg, PA 17102 Dated: 6?ooCJ By: h'""",~,-,,-, """"f.l'U' '- ~.""",",'~"""""'" ~......""~-~~ " "."~.,","~"",~~;,.""~".,-,~",-",-",,,-,,,)l-""""'~ 'C ~,. 1 " h'Ii~liiI- '1. --1l-,~~,~L-?&\o;;~~",,,,,,,,,,,,,..;,l;iM'l\~'! CIl 0: --l '" ,. W ~ --l l' ~ t'" ." ~ '" " 0 '" Z 9 ~ ~ z ~ ~ ~ '" &I ~ k N ~ ~ (;) ~ ~ ~ ill ~ ~ :; ~ - j;i '" t>:l ~ t>:l 0 - '" Z (:) C~ I' .~ C C) f': 5: (- -vee C:: 1111'< !"'- ---/-r'l ~i~i (....> r;c; .'\') <: ~C) -'~ ~=C; t;:) ::::-,j ;t>c: ~ -:,.) 5J .r. -< ~ IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYL VANIA William E. Boyer, If., Plaintiff No. 2000-809 Civil Term Civil Action - Law and Equity v. Appeal from District Justice Judgment Ronald E. Harbold, Defendant Jury Trial Demanded CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, David Mills, Esquire certifies that: (I) a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty (20) days prior to the date on which the subpoena is sought to be served; (2) a copy of the notice of intent, including the proposed subpoena, is attached to this certificate; (3) no objection to the subpoenas has been received; and (4) the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the sub oena. n,." -' rf!y d-l fr9a.. David lis, EsqUl e Attorney for Plainti , I', ;i , 1',1 II Ii " ji i: Ii j: " - . I"" "---~-; r: ::l IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA William E. Boyer, Jr., Plaintiff No. 2000-809 Civil Term Civil Action - Law and Equity v. Appeal from District Justice Judgment Ronald E. Harbold, Defendant Jury Trial Demanded NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Plaintiff, William E. Boyer, Jf., intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made, the subpoena may be served. Dated: ,/11 61"00 {/ / ' ;'''' =. "~ ~ " IIIIiI .d '~'~-~\ , COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND William E. Boyer, Jr., Plaintiff v. Ronald E. Harbold, Defendant File No. 2000-809 SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANTTO RULE 4009.22 TO: Shull's Auto Body Shop, 507 Sleeov Hollow Rn~n. ~h",rm~n~n~l", pa . . (Name of Person or Entity) 17flQf'\ Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documenls or things: Invoice, bill, records of payment and receipt of money from or on behalf of Ronald F. Harbold, Jr. for repairs to a 1990 Forn ::1<;0 4><4 Ill) ,,"'hi....1 '" nn ;;>nd "ftor ]'In,,, P, 1 P9? at 1313 East Market street, York, PA 17401 (Address) You may deliver or maillegibie copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: Name David Mills, Esquire Address: 138 East Market Street York, PA 17401 Telephone: (717) 854-9506 Supreme Court 10 # 37192 Attorney For: Plaintiff, William E. Boyer, Jr. BY THE COURT: Prothonotary/Clerk, Civil Division Date: Seal of the Court Deputy (Elf. 7/97) "'__~ ~'""..." '_~'"'''u_ "'i~~lIilllo;"li~W~Uiffil'" .~ --~ -~ .', ".~ .. . (') <.::> () c <:;:) ~ ~n :bo ril~ c: ';-- Z:u G') H1:JJ r- 6j5.;: I -,-,.(7"1 .r:- :66 ~z q(~ 0 ~O -0 ':C11 :x {~..", :;;;0 /.0 ~ r:-? 15m =< w ~ .;:- -< ,"- .... " ., j j ! I PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter far the next Argunent Court. CAPTION OF CASE (entire caption must be stated in full) William E. Boyer, Jr., ( Plaintiff) vs. Ronald E. Harbold, ( Defendant) No. 809 Civil $9X 2000 1. State matter to be argued (Le., plaintiff's rrotion for new trial. defendant's demurrer to canplaint. etc.): Defendant's Preliminary Objections to Plaintiff's Second Amended Complaint. 2. Identify counsel who will argue case: (b) far defendant: Address: David Mills, Esquire Stetler & Gribbin 138 East Market street, PO Box 2588 York, PA 17405 Madelaine N. Baturin, Esquire 717 North' 2nd street Harrisburg, PA 17102 (a) for plaintiff: Address: 3. I will notify all parties in writing within bio days that this case has been listed for argunent. 4. Argunent Court Date: Dated::>5 &2C2'2.;uL3g~6{O()O ~i ~-_IIi!IU~~""'~" .. '~"JI!tiIl!1l~o;.H~~";b"",,@l'!.i~""~H~ '- ...... '. Jj'~IMlIl""""""""",~'_1IIIiliIIi ~:, ~ , r 1"1 \i !i II I 0 C> c> c: 0 ,'1 <".... Cl -oeD rrI :::1 mIT: n ;-'Tl?"D. Z:3: :z:r- ~~j8 (f) I>' N -<:;~:~: ';~(~ CO )> ;p. ~~,~ zO ::x pO Cf? qrn c: Z C- 5" ~ :rJ W -< . , "," ~,,'.'" .'v^,,' ,^' ",:;:',,;;,'.-l.;,~,~.':~,';~, ,"'" ',"I 'I , ' ",' ~,', IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYL VANIA William E. Boyer, Jr., Plaintiff No. 2000-809 Civil Term Civil Action - Law and Equity v. Ronald E. Harbold, Defendant Appeal from District Justice Judgment Jury Trial Demanded BRIEF OF PLAINTIFF IN OPPOSITION TO DEFENDANT'S PRELIMINARY OBJECTIONS I. STATEMENT OF FACTS: On June 9, 1997, William E. Boyer, Jr. needed a tow of his 1990 Ford F250 4x4 truck. He called Ronald E. Harbold of Ron Harbold's Towing, who agreed to tow the truck for $50.00. While towing the truck down a hill, the tow truck started to brake, but could not stop, slid, and struck a telephone pole near the intersection of Deer Lane and Wertzsville Road in Mechanicsburg. The Ford F250 slid up on the boom towing device and damaged the Ford F250. Costs to repair the Ford F250, tow it from the scene, and secure a rental amounted to the sum total of $4,077.32 for which Ron Harbold refused to pay. II. ISSUES: I. DOES PLAINTIFF STATE A CAUSE OF ACTION FOR BAILMENT? :1 'I !i I , Answered in the affirmative. II. DOES PLAINTIFF STATE A CAUSE OF ACTION FOR BREACH OF CONTRACT? Answered in the affirmative. 1 "-" "" >' ,__",'~O,/"", ''''''''~ .;:,::;~::"':'I~,~<.~:~"",,':" 'J\I',----".'fl _J," " "^"', 1lI. ARGUMENT I. STANDARD OF REVIEW When preliminary objections are raised to a complaint by a demurrer, the court is free to address only whether the complaint, on its face, fails to assert a cause of action as a matter of law. Mellon Bank. N.A. v. Fabinyi, 650 A.2d 895, 437 Pa. Super. 539 (1994). The scope of review is as follows: A demurrer can only be sustained where the complaint is clearly insufficient to establish the pleader's right to relief. Firing v. Kephart, 466 Pa. 560,353 A.2d 833 (1976). For the purpose of testing the legal sufficiency of the challenged pleading a preliminary objection in the nature of a demurrer admits as true all well-pleaded, material, relevant facts, Savitz v. Weinstein, 395 Pa. 173, 149 A.2d 110 (1959); March v. Banus, 395 Pa. 629, 151 A.2d 612 (1959), and every inference fairly deducible from those facts, Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970); Troop v. Franklin Savings Trust, 291 Pa. 18, 139A 492 (1927). The pleader's conclusions or averments of law are not considered to be admitted as true by a demurref. Savitz v. Weinstein, supra. I' II I[ \1 I. Ii II Since the sustaining of a demurrer results in a denial of the pleader's claim or a dismissal of his suit, a preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without doubt fail to state a claim for which relief may be granted. Schott v. Westinghouse Electric Corp., 436 Pa. 279, 259 A.2d 443 (1969); Botwinick v. Credit Exchange, Inc., 419 Pa. 65,213 A.2d 349 (1965); Savitz v. Weinstein, supra; London v. Kingsley, 368 Pa. 109, 81 A.2d 870 (1951); Waldman v. Shoemaker, 367 Pa. 587, 80 A.2d 776 (1951). If the facts as pleaded state a claim for which relief may be granted under any theory of law then there is sufficient doubt to require the preliminary objection in the nature of a demurrer to be rejected. Packler v. State Employment Retirement Board, 470 Pa. 368,371,368 A.2d 673,675 (1977); see also Schott v. Westinghouse Electric Corp., supra, 436 Pa. at 291, 259 A.2d at 449. County of Allegheny v. Commonwealth of Pennsylvania, 507 Pa. 360, 372, 490 A.2d 402,408 (1985). 2 Ii .11. ,,~'-'.." .' '--..0' .., , ,,;.,;; .",,, _"'.O~~", _ '.-:" ',,;:-'.-,,_,,~;,[ '_:'c'"" <k:,~u~> "';;'" I........; II. THE FACTS AS PLEADED STATE A CLAIM FOR WHICH RELIEF MAY BE GRANTED UNDER THE THEORY OF BAILMENT. The Superior Court of Pennsylvania defined bailment as follows: A "bailment" in its ordinary legal signification, imports the delivery of personal property by one person to another in trust for a specific purpose, with a contract, express or implied, that the trust shall be faithfully executed, and the property returned or duly accounted for when the special purpose is accomplished, or kept until the bailor reclaims it. 8 AmJur. 2d ~2, Bailments. Beechwoods Flying Sendce Inc. v. Al Hamilton Contracting COl;poration, 317 Pa. Super. 513, 519,464 A.2d 440 (1983). In Ferrick Excavating and Grading Company v. Senger Trucking Company, 506 Pa. 181, 484 A.2d 744 (1984) damage was done to a 1974 Fiat - Allis Chalmers High Lift while it was being transported on a truck owned and operated by Senger Trucking. The Court held that a bailment existed even though the bailor rode as a passenger in the transport truck. Here, Boyer's F250 was being transported by Ron Harbold's tow truck while Boyer was a passenger. The relationship between plaintiff and defendant was that of bailorlbailee. The Supreme Court of Perm sylvania has stated: "A bailment is a delivery of personalty for the accomplishment of some purpose upon a contract, express or implied, that after the purpose has been fulfilled, it shall be redelivered to the person who delivered it, otherwise dealt with according to his directions or kept until he reclaims it." Smalich v. Westfall, 440 Pa. 409, 269 A.2d 476, 480 (1970) (citation omitted). Therefore, a cause of action for breach of bailment agreement arises if the bailor can establish that personalty has been delivered to the bailee, a demand for return that the bailed goods has been made, and the bailee has failed to return the personalty. Price v. Brown, 545 Pa. 216, 221, 680 A.2d 1149, 1151-52 (1996). William E. Boyer, Jr. pleaded that he delivered his Ford F250 to Ronald E. Harbold who "had sole possession and control of the vehicle" "at all times while towing the vehicle. 3 " ";'",""". ,"" , ,,~', '. ~'_., ~,' ~' " , "'~ "". ,'.'''_','-__"~- . ,>C~, :.:--' " "A'"",;^ :~' :,~:bi '";;",,,,,~, , "," (Paragraph 8). William E. Boyer, Jr. pleaded that, while the truck was in the possession of the bailee, it was damaged. (Paragraph 10). Ron Harbold's Towing never offered to repair the damage to return the truck to Boyer in the condition in which the bailee had received it (Paragraph 11) and refused to pay the bailor damages when demand was made (Paragraph 12). Where one can never receive, upon demand, the exact item he entrusted to the bailee, a claim for damages serves as a demand for the return of the item's value prior to the damage. Lear v. Eddy, 749 A.2d 975 (Pa. Super. 2000). Accordingly, the allegations of bailment are proper and the demurrer's objection should be overruled. III. THE CLAIM FOR RELIEF FOR BREACH OF A CONTRACT IS PROPERLY AVERRED. The parties' obligations are defined by the terms of a contract, not by larger social policies embodied in the law of torts. The Superior Court of Pennsylvania has stated: Although they derive from a common origin, distinct differences between civil actions for tort and contract breach have developed at common law. Tort actions lie for breaches of duties imposed by law as a matter of social policy, while contract actions lie only for breaches of duties imposed by mutual consensus agreements between particular individuals . . . . To permit a promisee to sue his promissor in tort for breaches of contract inter se would erode the usual rules of contractual recovery and inject confusion into our well-settled forms of actions. Bash v. The Bell Telephone Company of Pennsylvania, 411 Pa. Super. 347, 356,601 A.2d 825 (1992) quoting Iron Mountain Security Storage COl:poration v. American Specialty Foods. Inc., 457 F. Supp. 1158 (E.D. Pa. 1978). Generally, when breach of a contractual relationship is expressed in terms of tortious conduct, the cause of action is properly brought in assumpit and not in trespass. See, Sadtler v. 4 ,. .''','~ " ,.-' ,.". '",;' --.' <=, 'Y~' > ,~ "',>,,J. ,,', "./' "',;',~",,=,,,,, ',c, '~' ,~ '",''',';',' "''';>--':'''.' ,..,,-' '.';,,'",-',",'- '~ ,~T' ',,'~':'; -T'" '"I~e;""': . ,_",",~ , ~~' "d'j I' ,I ,II 1: ~i Jackson-Cross Company, 402 Pa. Super. 492, 587 A.2d 727 (1991). The cause of action in Count I is in assumpsit for breach of contract. A cause of action premised on a bailment relationship may be brought in assumpit. The Superior Court of Perm sylvania has held: Because bailments are contractual relationships, the amount of damages owed, if any, depends, as we have seen, upon the terms of the bailment. 5 [1]n the absence of an express provision of the contrary, every contract of hiring contains an implied covenant that the bailee will take reasonable care of the property hired, and, in the event that the property is injured due to the bailee's negligence, an action will lie for the breach of such implied covenant, and, regardless of whether such action is an assumpit or trespass, it is still founded in contract." 5 P.L.E. ~28 Bailment. Beechwoods Flying Service. Inc. v. Al Hamilton Contracting COl:poration, Id. at 523. Pleaded in Count II are the offer, acceptance and consideration in the form of detrimental reliance. "Detrimental reliance is another name for promissory estoppel." Travers v. Cameron County School District, 544 A.2d 547, 550 (Pa. Cmwlth. 1988). "Permsylvania has long recognized promissory estoppel as a vehicle by which a promise may be enforced in order to remedy an injustice." Id. Pennsylvania adopted the Restatement (Second) of Contract 990, which provides as follows: Promise Reasonably Inducing Action or Forbearance (1) A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires. 5 I ~, " " ';c ";'."J c,.~""~,' ~, ,.'", "',,,_ " -,-,~,~'- ",,,"-' ,;"~,,,.;, ):,'~-""~"O'__';P;; , '.~k~; ,>;~~\~I:;~;,;"~~>, ""~ __, ~'~d "c,;,:,'~ Travers v. Cameron County School District, ill. at 550-551. "In effect, the detrimental reliance of the promisee creates the consideration necessary for the formation of a contract, the breach of which is actionable." Id. William E. Boyer, Jf. pleaded the offer and acceptance of the contract for hire in towing in the Ford F250 truck to a garage for repair (Paragraph 17). William E. Boyer, Jr. agreed to pay the $50.00 charge to "Ron Harbold's Towing" and in reliance thereon, refrained from contracting another tow operator who had the ability to tow his Ford F250 truck safely (Paragraphs 18 and 19). When Ronald E. Harbold breached the contract and caused damage to the Ford F250 and consequential expenses, the breach of the contract is actionable. Accordingly, the demurrer's objection to Count II should be overruled. Respectfully submitted, Dated:rX~ S1eC&MNLd' ooe By' David N1ills, Esqurre Supreme Court No. 37 13 8 East Market Street PO Box 2588 York, PA 17405-2588 (717) 854-9506 Attorneys for Plaintiff, William E. Boyer, Jf. 6 . 'i ,..;., ," ',~, .~", .' " ' " ~.' .., ",'" , ,,; " , ,~"," ;. ,~", <' "f'. ;",\~:J., ", "~'.' ",,-,J!<"',<2?; CERTIFICATE OF SERVICE I, David MilIs, Esquire, hereby certify that I have served a true and correct copy of the foregoing BRIEF OF PLAINTIFF IN OPPOSITION TO DEFENDANT'S PRELIMINARY OBJECTIONS upon counsel for the Defendant, by depositing a copy of same in the United States Mail, regular delivery, postage prepaid as follows: Madelaine Baturin, Esquire Baturin & Baturin 717 North 2nd Street Harrisburg, PA 17102 Dated~ (()(,~OCdooo By: avid ills, Esq ire Supreme Court No. 192 138 East Market Street PO Box 2588 York, PA 17405-2588 (717) 854-9506 Attorneys for Plaintiff, WilIiam E. Boyer, Jr. , ~ ~ 'fl _;j:;" IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA William E. Boyer, Jr., Planntiff No. 2000-809 Civil Term v. Appeal from District Justice Judgment Jury Trial Demanded Ronald E. Harbold, Defendant DEFENDANT'S BRIEF IN SUPPORT OF DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, to wit, this 2.3.rd day of December, comes the Defendant, Ronald E. Harbold, by and through his counsel, the Law Offices of Baturin & Baturin, and hereby files this Brief in support of his Preliminary Objections to the allegations set forth in Plaintiff's Complaint and respectfully states as follows: 1 ~~~ ~I.~~ ,~,,~ ,- L'~ J. STATEMENT OF PROCEDURAL HISTORY AND SUBSTANTIVE FACTS A. Procedural History: 1. On March 1, 2000, the Plaintiff filed a Complaint against the Defendant for "Bailment" and "Breach of Contract." 2. After the Defendant was served with the aforementioned Complaint, the Defendant timely filed Defendant's Preliminary Objections to Plaintiff's Complaint on April 18, 2000. 3. On May 8, 2000, the Plaintiff filed an Amended Complaint against ...,~=-" theDefendant for Bailment and Breach of Contract. 4. After the Defendant was served with the aforementioned Amended Complaint, the Defendant timely filed Defendant's Preliminary Objections to Plaintiff's Second Amended Complaint on May 23, 2000. 5. On June 9, 2000, the Plaintiff filed a Second Amended Complaint against theDefendant for Bailment and Breach of Contract. 6. After the Defendant was served with the aforementioned Amended Complaint, the Defendant timely filed Defendant's Preliminary Objections to Plaintiff's Second Amended Complaint on July 3, 2000. 2 ,,.'~'> ~ 7. Defendant filed Defendant's Brief in Support of Defendant's Preliminary Objections to Plaintiff's Second Amended Complaint. B. Substantive History: The Defendant is Ronald E. Harbold. The Plaintiff is William E. Boyer, Jr. On June 9,1997, the Plaintiff's vehicle malfunctioned and the Plaintiff contacted his friend the Defendant to do the Plaintiff a favor and tow the Plaintiff's vehicle. The Defendant decided to do his friend the Plaintiff a favor and tow the Plaintiff's vehicle to a repair site. The Defendant never requested payment from the Plaintiff for doing this favor nor was any payment contemplated or discussed. No fees or charges were assessed as the nature of the situation was that of friend helping out friend. The Defendant then went to the Plaintiff's vehicle, attached Plaintiff's vehicle, and towed Plaintiff's vehicle to a repair site. During, the aforementioned towing, Defendant's tow truck locked it up and a minor collision occurred causing damage to Defendant's tow truck. 3 _~H fl ~~'~ ~.='. -- l~ ~~~i<:.:, II. STATEMENT OF THE ISSUES A. WHETHER THE PLEADINGS OF THE COMPLAINT ARE INSUFFICIENT? (Suggested Answer: YES) Pursuant to Pa. R.C.P. 1028(a)(4), the Defendant objects to the Plaintiffs Complaint, Counts I and II, for the Plaintiff has failed to state a cause of action in his Complaint against the Defendant, Ronald E. Harbold. Under Count I, the Plaintiff has failed to allege the averments necessary to state a cause of action of" Bailment". The law of bailments in Pennsylvania is well established. In Ferrick Excavating & Grading CO. V. Senger Trucking Co , 506 Pa. 181, the Pennsylvania Supreme Court articulated the long established law of bailments. Ferrick Excavating & Grading CO V Senger Trucking Co , The Court stated that: The law of bailments is well established, both as to the general nature of bailments and as to the duty of care owed in different types of bailment. As early as 1875 this Court stated that as to gratuitous bailments: [t]he law . . . has been settled since the decision of Coggs v. Bernard, 2 Ld.Raym. 909, in the year 1703. "Where a man takes goods into his custody to keep for the use of the bailor," it was said by Holdt, C.J., in that case, "he is not answerable if they are stole without any fault in him, neither will a common neglect make him chargeable, but he must be guilty of some gross neglect." The principles which govern the relations between bailors and bailees are succinctly stated in Story on Bailments, sect. 23. "When the bailment is for the sole benefit of the bailor, the law requires only slight diligence on the part of the bailee, and of 4 ,'= "I , ."';". COllrse makes him answerable only for gross neglect. 1d.. As such, in light of the relationships of the parties and the fact that the Defendant was merely helping the Plaintiff out by towing his car (any transfer of funds was nominal, was merely reimbursement for gasoline and clearly does not establish any further legal relationship than that of friend to friend), the Plaintiff cannot establish the elements of Bailments. In short, the Plaintiff and Defendant were friends and the only benefit derived by the Defendant in towing the Plaintiff's vehicle was that of a personal benefit and not any financial benefit. This was clearly a gratuitous Bailment, if any. Thus, the Defendant would not be liable for any action but gross negligence. No gross negligence was alleged and thus, no cause of action for Bailments is present. The Court further articulated the law of Bailments stating: In Thompkins v. Saltmarsh, 14 S. & R. 275, Duncan, J., [our Court stated] "Where one undertakes to perform a gratuitous act, from which he is to receive no benefit, and the benefit is to accrue solely to the bailor, the bailee is liable only for gross negligence. . . . It is that omission of care which even the most inattentive and thoughtless men take of their own concerns. . . . The bailee without reward is not bound to ordinary diligence, is not responsible for that care which every attentive and diligent person takes of his own goods, but only for that care which the most inattentive take." This is also directly applicable to the present case. The Defendant as shown by the facts alleged in Plaintiff's complaint was merely undertaking a gratuitous act from 5 ~ ~~,-- , ~ . .1 ~ ~ " which he received no benefit (fifty dollard covers only gasoline in a scenarios such as that which the Plaintiff alleged in his complaint), and the benefit accrued only to the Bailor. Thus, short of gross negligence or an omission of care which even the most inattentive and thoughtless men take of their own concerns, the Bailee without reward cannot be held liable for any other. Additionally, the Defendant never entered into a Bailee-Bailor relationship from the outset as the Defendant was never in exclusive control of Plaintiffs vehicle and Plaintiff controlled where the vehicle was being towed to and for what purpose the vehicle was being towed. As such, in light both of the above-referenced cases and the well established law of Bailments as articulated by the Pennsylvania Supreme Court, the Plaintiff cannot sustain a cause of action for Bailments. Moreover, the Plaintiff has failed to state a cause of action of Breach of Oral Contract against Defendants under Count II. In order to state a cause of action of Breach of Oral Contract, a Plaintiff must show, among the standard elements of a contract (consideration, bargained for exchange and certainty of terms), both offer and acceptance. Specifically, there must be offer and acceptance of a sufficient nature to make a contract. Indeed, a contract must arise from the acceptance of the stated terms, and the acceptance thereof must be identical, in order to bring the minds of the parties together. Frick & Lindsay Co V Johnstown & S Ry Co, 271 Pa. 536, at 537. 6 ,~~ , - ' " ~'..:., ",c In the present case, the Plaintiff has failed to show a "meeting of the minds of the parties." The Plaintiff does not show where there was an offer nor an acceptance of a stated offer with established terms and thus, no oral contract existed. The events that underlie the alleged transaction were akin to a favor by one friend for another and not a contract whatsoever. The Plaintiff merely did a favor for the Plaintiff as the two parties were friends and no legal relationShip was ever established. Additionally, there was no consideration and this factor in and of itself renders the Plaintiffs cause of action meritless. The facts dictate that this was merely a gratuitous transaction and thus no consideration is present. In Grippen b. Backert, 15 Phila. 269, at 275, the court restated the Adequacy of Consideration doctrine stati ng: There is no doubt that most enforceable promises are made by the promisor for purposes of obtaining, in return, something regarded as beneficial. 8 P.L.E. Contracts, 9 61 (1971). Moreover, under 9 79 Restatement (Second) of Contracts, entitled Adequacy of Consideration; Mutuality of Obligation: In the present case there was no consideration nor was there any bargained for exchange. Thus, no contract existed. Once again, the Plaintiff merely did a favor for the Plaintiff as the two parties were friends and no legal relationship was ever established. 7 ,,',,] "- - Date: December 23, 2000 Respectfully submitted, By: Madelaine N. Baturin 717 North Second Street Harrisburg, PA 17102 (717) 234-2427 Attorney ID# 68971 8 / I. ~'- " ..,;r.'~""""",,",,M .~ ..~ '~ ~'" o=k" ~J~ T'~<<, IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA William E. Boyer, Jr., Plaintiff No. 2000-809 Civil Term v. Appeal from District Justice Judgment Jury Trial Demanded Ronald E. Harbold, Defendant CERTIFICATE OF SERVICE I, Madelaine N. Baturin, Esquire, of the Law Offices of Baturin & Baturin, hereby certify that I served a true and correct copy of the Brief in Support of Defendants' Preliminary Objections to Plaintiff's Second Amended Complaint by depositing same in the United States Mail, Harrisburg, Pennsylvania, by regular first class mail, postage prepaid, addressed as follows: David Mills, Esquire 138 East Market Street PO Box 2588 York, PA 17405-2588 Attorney for Plaintiff, William E. Boyer, Jr. ~ ' ,~' I ' ~ t- . Respectfully submitted, BATURIN & BATURIN DATE: December 23,2000 By: Madelaine N. Baturin, Esquire Attorney I.D. No. 68971 717 N. Second Street Harrisburg, PA 17102 (717) 234-2427 Attorney for Defendants 10 i' ~, ~ I ' ''''''-~ h.~ . VERIFICATION I verify that the statements made in the foregoing document are true and correct to the best of my knowledge, belief and information. I understand that false statements herein are made subject to the penalties of 18 PA C.S. Section 4904 relating to unsworn falsification to authorities. Date: December 23, 2000 ~/P.~ 11 ~..--, ,~, ''".,, ,_, ] '~" l~"~;"'. '-1,',;, :.! WILLIAM E. BOYER, JR., PLAINTIFF : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. RONALD E. HARBOLD, DEFENDANT 00-0809 CIVIL TERM ORDER OF COURT AND NOW, this ~ day of January, 2001, the preliminary objections of defendant to plaintiff's second amended complaint, ARE DISMISSED. ~ Court'l- I t David Mills, Esquire 138 East Market Street PO Box 2588 York, Pa 17405-2588 For Plaintiff Madelaine N. Baturin, Esquire 717 North Second Street Harrisburg, PA 17102 For Defendant ~~ L~ a-Ol 01- 0 ~"i~ :saa ~~ -! ':"!;",j-:)TlJ1Y r1 ' j I .J?)~ -. 8 fL' 2' <;n I J I ~. u"" ....1'1.,-... ..... ,v'UfIT' GUIV[,;r..::'i~,hi<U (j,j 'IJ 1 PENNSYL\f.,\NI.A ~<, i, ,IQ ~rn~Ii\\!"~~_~~,,"._..,... ~, W" - ) n ~.~,,~ ~'..... ^I" ^'fS' WILLIAM E. BOYER, JR., Plaintiff vs. ) ) ) ) IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENN. NO. 2000-809 Civil Term RONALD E. HARBOLD, Defendant CIVIL ACTION - LAW AND EQUITY JURY TRIAL DEMANDED NOTICE TO PLEAD To: WILLIAM E. BOYER, JR. cIa David Mills, Esquire 138 East Market Street York, PA 17405 You are hereby notified to plead to the enclosed Answer With New Matter And Counterclaim within twenty (20) days from service hereof or a default judgment may be entered against you. Respectfully submitted, ~. BAT~RIN & BATURIN J \ By:11-J\. )1. MADELAINE N. BATURIN, ESQUIRE Attorney J.D. No. 68971 717 North Second Street Harrisburg, P A 171 02 (717) 234-2427 Attorney for Defendant/Counter Plaintiff Dated: January 22, 2001 I.. . . """,;';, WilLIAM E. BOYER, JR., Plaintiff vs. ) ) ) ) IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENN. NO. 2000-809 Civil Term RONALD E. HARBOLD, Defendant CIVil ACTION - lAW AND EQUITY JURY TRIAL DEMANDED ANSWER WITH NEW MATTER AND COUNTERCLAIM AND NOW, this 22nd day of January, 2001, comes the Defendant, RONALD E. HARBOLD, by and through his attorneys, the Law Firm of Baturin & Baturin, and files this Answer with New Matter and Counterclaim, and avers as follows: 1. Neither Admitted nor Denied. After reasonable investigation, the Defendant is without knowledge or information sufficient to form a belief as to the truth of this averment. 2. Admitted. COUNT 1 - BAILMENT 3. Defendant's Answers to averments in Paragraphs 1 and 2 are incorporated herein by reference thereto. 4. Neither Admitted nor Denied. After reasonable investigation, the Defendant is without knowledge or information sufficient to form a belief as to the truth of this averment. 5. Denied. It is denied that Plaintiff contacted Defendant and requested transport of Plaintiffs vehicle. However, by way of further answer, a friend of the Plaintiff by the name of JR, called the Defendant and asked him to help out their 1 .- __ I" ~h mutual friend, the Plaintiff. 6. Denied. It is denied that Defendant agreed to tow the vehicle of Plaintiff for the sum of Fifty ($50.00) Dollars. By way of further answer, the Defendant was asked to help out the Plaintiff as a favor and the Defendant never asked for, or agreed to, accept any monies whatsoever. 7. Denied. It is denied that Plaintiff relied upon the offer of Defendant and refrained from contacting another tow operator who would have the ability to tow his vehicle safely. 8. Denied. Plaintiff was situate in the front seat of Defendant's truck during the entire incident and Plaintiff saw first hand the problem they faced with the stopped school bus. 9. Denied. It is denied that there was a contract of hire between Plaintiff and Defendant and further denied that an implied covenant existed. 10. Admitted in part. Denied in part. It is admitted that the vehicle of the Plaintiff was damaged on or about June 9,1997, however, it is denied that the Defendant had sole possession of the vehicle when it was damaged. 11. Admitted in part. Denied in part. It is admitted that Defendant never offered to repair the damages to the vehicle or pay any of the other costs. By way of further answer, the Plaintiff never informed the Defendant of any of the costs prior to a lawsuit being filed. It is denied that any of these damages or costs were required as a result of Ron Harbold's tow truck's collision with a telephone pole. 2 "'rot ~, ~- " I. . .......~'.o 12. Denied. By way offurther answer, it is denied that on and after August 20, 1997, Defendant refused to pay damages in the amount of $4.077.32. 13. Denied. By way of further answer, it is denied that the property was returned to Plaintiff in a damaged condition due to the actions and omissions of Defendant. 14. Denied. By way of further answer, it is denied that the damaged condition of the vehicle constitutes a breach of the implied covenant that the Defendant would take reasonable care of the property hired. COUNT II - BREACH OF CONTRACT 15. Defendant's Answers to averments in Paragraphs 1 through 14 are incorporated herein by reference thereto. 16. Denied. It is denied that on or about June 9,1997, Defendant held himself and his towing services, Ron Harbold's Towing, as providing competent and safe transportation of motor vehicles from one location to another. By way of further answer, the Defendant never held himself out as a towing service providing any type of transportation of motor vehicles for other individuals from one location to another. In addition, on the sides of the Defendant's vehicle, the following words appeared: "not for hire". 17. Denied. It is denied that on or about June 9,1997, Plaintiff called Defendant to enter into an oral contract, which Defendant accepted and agreed to perform 3 "-~, . 'vlillti! " ''''''''''''''"''--)Pj~> services for the Plaintiff. 18. Denied. It is denied that the Defendant asked for the sum of Fifty ($50.00) Dollars for the labor and towing service and transportation, which Plaintiff agreed to pay. By way of further answer, Plaintiff never paid any monies to Defendant as this was strictly performed as a favor. 19. Denied. It is denied that Plaintiff, in reliance upon the offer of Defendant, refrained from contacting a tow operator who had the ability to tow the vehicle safely. 20. Denied. It is denied that at all times relevant to this lawsuit Defendant maintained a contract with Plaintiff to provide towing services for Plaintiff's motor vehicle. 21. Denied. It is denied that Defendant breached the contract with Plaintiff by failing to provide and maintain a proper towing apparatus, by failing to do no damage to Plaintiff's vehicle, and by returning the Plaintiff's vehicle in damaged condition. By way of further answer, there was no contract between the Plaintiff and Defendant. 22. Admitted in part. Denied in part. It is admitted that Defendant never offered to repair the damages to the vehicle or pay any of the other costs. By way of further answer, the Plaintiff never informed the Defendant of any of the costs prior to a lawsuit being filed, it is denied that any of these damages or costs were required as a result of Ron Harbold's tow truck's collision with a telephone pole. WHEREFORE, Defendant respectfully requests this Honorable Court to deny the requests of the Plaintiff in this matter and enter judgment in favor of the Defendant and 4 ""~ ,"'-"~ I -'IllW!l ~~-~' "", 1b...M:,j,----", dismiss said Complaint and to award to the Defendant any costs, expenses, and attorney fees as the Court may deem fit. NEW MATTER 23. Defendant's Answers to averments in Paragraphs 1 through 22 are incorporated herein by reference thereto. 24. The Defendant is not, and was not, in business for providing a towing service to the public. Labeled on the sides of his truck was the wording "Not for Hire". He had to put the name "Ron Harbold's Towing" on his truck for purposes to allow him to go into junk yards and tow various things for his personal use. The Defendant performed a favor for the Plaintiff. 25. The Statue of Limitations in this case has run. 26. There was never a contract, either oral or written, entered into between the Plaintiff and Defendant. 27. There has been no cause of action established in this case. WHEREFORE, Defendant respectfully requests this Honorable Court to deny the requests of the Plaintiff in this matter and enter judgment in favor of the Defendant and dismiss said Complaint and to award to the Defendant any costs, expenses, and attorney fees as the Court may deem fit. 5 COUNTERCLAIM AND NOW, comes the Defendant/Counter Plaintiff, RONALD E. HARBOLD, by and through his attorneys, the Law Firm of Baturin & Baturin, and files this Counterclaim and, in support thereof, respectfully avers as follows: 28. Paragraphs 1 through 27 are incorporated herein by reference as though textually set forth. 29. Defendant/Counter Plaintiff was only reimbursed $5,000.00 for his truck which was valued at $9,000.00, which included the boom and hoist. Mr. Harbold also lost wages for three days in the amount of $420.00. Defendant/Counter Plaintiff has suffered damages totaling $4,420.00 due to this incident. WHEREFORE, the Defendant/Counter Plaintiff, RONALD E. HARBOLD, respectfully requests that this Honorable Court grant the relief requested and order the Plaintiff/Counter Defendant, WILLIAM E. BOYER, JR., to pay the amount of $4,420.00 plus costs, fees, expenses and any other relief this Honorable Court deems justified. Respectfully Submitted, BATURIN & BATURIN By: IlJl 11 ~/ ,h-r-(o l MADELAINE N. BATURIN, Esquire Attorney 10 No. 68971 Attorney for Defendant/Counter Plaintiff 717 North Second Street Harrisburg, PA 17102 (717) 234-2427 6 - '.. , ~ 'I , ''''w"",; VERIFICATION I hereby verify that the statements made in this Answer With New Matter and Counterclaim are true and correct to the best of my knowledge, belief and information. I understand that false statements herein are made subject to the penalties of 18 PA C.S. Section 4904 relating to unsworn falsification to authorities. Dated:~C'1l ~/~~ RONALD E. HARBOLD (SEAL) ~- WILLIAM E. BOYER, JR., Plaintiff vs. ) ) ) ) IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENN. NO. 2000-809 Civil Term RONALD E. HARBOLD, Defendant CIVIL ACTION - LAW AND EQUITY JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Madelaine N. Baturin, Esquire, of the law firm of Baturin & Baturin, hereby certify that I have served a true and correct copy of the within Answer With New Matter And Counterclaim by depositing same, at the United States Post Office, Harrisburg, Pennsylvania, certified mail, return receipt requested, postage prepaid, addressed as follows: David Mills, Esquire 128 East Market Street York, PA 17405-2588 Respectfully submitted, BATU~URIN . By: r~ MADELAINE N. BATURI , ESQUIRE Attorney I.D. No. 68971 717 North Second Street Harrisburg, PA 17102 (717) 234-2427 Attorney for Defendant Dated: January 22, 2001 """;--';"""';"",'"- ",;,~~':,':'Y','.i';: '.0,' , ,,>',~ IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA William E. Boyer, Jf., Plaintiff No. 2000-809 Civil Term Civil Action - Law and Equity v. Appeal from District Justice Judgment Ronald E. Harbold, Defendant Jury Trial Demanded PRE. ,1MINARY OBJECTIONS TO COUNTERCLAIM AND NOW, this qcl day of February 2001, comes William E. Boyer, Jr., Defendant on the Counterclaim, by his attorneys, Stetler & Gribbin, who respectfully requests this Honorable Court to sustain preliminary objections to the legal insufficiency of the Counterclaim on the following grounds: 1. Plaintiff on the Counterclaim, Ronald E. Harbold, avers "a friend of the Plaintiff by the name of JR, caIled the Defendant and asked him to help out their mutual friend, the Plaintiff." See Answer paragraph 5. 2. Plaintiff on the Counterclaim contends he "was asked to help out the Plaintiff as a favor and the Defendant never asked for, or agreed to, accept any monies whatsoever." See Answer paragraph 6. 3. Plaintiff on the Counterclaim contends William E. Boyer, Jr., "was situate in the front seat of Defendant's truck during the entire incident and. . . saw firsthand the problem they faced with the stopped school bus." See Answer paragraph 8. 1 '" ---""". I ,~" ';; "-'.. '," . ......,1 , 0' ",~," ~O<,'~ ~"; ,". '_, '_'' C'~ CO,;" ~' .. 4. Plaintiff on the Counterclaim admits "the vehicle of the Plaintiff [William E. . Boyer, Jr.] was damaged on or about June 9, 1997." See paragraph 10 of the Answer. 6. Plaintiff on the Counterclaim admits he "never offered to repair the damages to the vehicle or pay any of the other costs" to William E. Boyer, Jr." See paragraph 11 of the Answer. 7. Plaintiff on the Counterclaim avers he "never held himself out as a towing service providing any type of transportation of motor vehicles for other individuals for other individuals from one location to another. In addition, on the sides of the Defendant's vehicle, the following words appeared: 'Not for hire.''' See paragraph 16 of the Answef. 8. Plaintiff on the Counterclaim contends William E. Boyer, Jf. "never paid any monies to Defendant as this was strictly performed as a favor." See paragraph 18 of the Answef. 9. Plaintiff on the Counterclaim contends "there was no contract between Plaintiff and Defendant." See paragraph 21 of the Answef. 10. Plaintiff on the Counterclaim admits he "never offered to repair the damages to the vehicle or pay any of the other costs." See paragraph 22 ofthe Answer. 11. Plaintiff on the Counterclaim contends he "is not and was not in business for providing a towing service to the public. Labeled on the sides of his truck was the wording 'Not for hire.' He had to put the name 'Ron Harbold's Towing' on his truck for purposes to allow him to go into junkyards and tow various things for his personal use. The Defendant performed a favor for the Plaintiff." See paragraph 24 of New Mattef. 2 Ii Ii I " 12. Plaintiff on the Counterclaim contends he was "only reimbursed $5,000.00 for his' truck which was valued at $9,000.00, which included the boom and hoist. Mr. Harbold also lost wages for three days in the amount of $420.00." See paragraph 29 of the Counterclaim. 13. The aforesaid allegations do not give rise to a claim upon which relief in the amount of $4,420.00 can be granted. WHEREFORE, Defendant on the Counterclaim, William E. Boyer, Jr., respectfully requests this Honorable Court to sustain the preliminary objection to the Counterclaim on the grounds oflegal insufficiency and to dismiss it from the action with prejudice. Respectfully submitted, STETL Dated: r:;( By:- avid ills, Esq . e Supreme Court No. 13 8 East Market Street PO Box 2588 York, PA 17405-2588 (717) 854-9506 Attorneys for Defendant on the Counterclaim, WiIliam E. Boyer, Jf. 3 'I I, II r"- I I I " ",.,~.. <, ,-"~,,, 'd'--,", ","~, ,';';"__ C__Co>, ,~ :':>'~,;jl '" ,'-2 ",' ';~;d; CERTIFICATE OF SERVICE I, David Mills, Esquire, hereby certifY that I have served a true and correct copy of the foregoing PRELIMINARY OBJECTIONS TO COUNTERCLAIM upon counsel for the Defendant, by depositing a copy of same in the United States Mail, regular delivery, postage prepaid as follows: Madelaine Baturin, Esquire Baturin & Baturin 717 North 2nd Street Harrisburg, PA 17102 Dated: i:\ ( avid Mills, Esquire Supreme Court No" 37192 138 East Market Street PO Box 2588 York, PA 17405-2588 (717) 854-9506 Attorneys for Plaintiff, William E. Boyer, Jr. . ',low 'c' WJltI IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYL VANIA William E. Boyer, Jr., Plaintiff No. 2000-809 Civil Term Civil Action - Law and Equity v. Appeal from District Justice Judgment Ronald E. Harbold, Defendant Jury Trial Demanded PRELIMINARY OBJECTIONS TO COUNTERCLAIM AND NOW, this qt!J^ day of February 2001, comes William E. Boyer, Jf., Defendant on the Counterclaim, by his attorneys, Stetler & Gribbin, who respectfully requests this Honorable Court to sustain preliminary objections to the legal insufficiency of the Counterclaim on the following grounds: 1. Plaintiff on the Counterclaim, Ronald E. Harbold, avers "a friend of the Plaintiff by the name of JR, called the Defendant and asked him to help out their mutual friend, the Plaintiff." See Answer paragraph 5. 2. Plaintiff on the Counterclaim contends he "was asked to help out the Plaintiff as a favor and the Defendant never asked for, or agre^ed to, accept any monies whatsoevef." See Answer paragraph 6. 3. Plaintiff on the Counterclaim contends William E. Boyer, Jr., "was situate in the front seat of Defendant's truck during the entire incident and . . . saw firsthand the problem they faced with the stopped school bus." See Answer paragraph 8. 1 <;' I ';"I,""""~,,""Il.,,..k;-"""'H'>' '0"""""""+"'-~;~'---.;:"",~"""''''~M;;',''f~'f'~"!"",,,,,,~i" ,'.. ,--;,e,'" ,"~,. -"'''''''''F'" ""~,"";,"",~,,,,,,",,'iJc"'" ';""'r'l\~~W*"*~-'~--'" - - . - . C/O d .., t" ,. W ~ .., l' ~ ." ~ t'" '" " 0 t" z P ~ ::<l z ~ ~ .. ~ '" &l ~ N " ~ m ~ 0 ~ .. -i g: ~ ::<l :; ~ - ji '" t:ll '" -i t:ll 0 - '" Z 0 0 0 C -1'1 s: ..,., .:j -0 ['"; r" " , ;1 :JJ no fi-; 0'.:1 Z I,' -r'] hl ZC C.,) .. ;~,; (:::! (/) .:(> ,'') \ ..:<.:.:<' '," ~{~~,~ r::: r-"" '--' ~'::: ~~~ ?~ ~ z () ~., ,- :> '-' \.0 c: .::~ 2' ..,. ~ en ~ . "<' ' , '-' (.;"~"-{ ~ , ;~ I,., .-'; ~, I;: !!i IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYL VANIA William E. Boyer, Jf., Plaintiff No. 2000-809 Civil Term Civil Action - Law and Equity v. Appeal from District Justice Judgment Ronald E. Harbold, Defendant Jury Trial Demanded REPLY TO NEW MATTER AND NOW, this 9th day of February 2001, comes the Plaintiff, William E. Boyer, Jr., by his attorneys, Stetler & Gribbin, who files this Reply to New Matter on the following grounds: 23. Denied. After reasonable investigation, Plaintiff, William E. Boyer, Jf., is without knowledge or information sufficient to form a belief as to the truth of the averments of fact set forth in paragraphs 1 through 22 of the Defendant's Answer to the Second Amended Complaint. 24. Denied. Defendant, Ronald E. Harbold, represented that he was in business. After reasonable investigation, Plaintiff, William E. Boyer, Jr., is without knowledge or information sufficient to form a belief as to the truth of the remainder of the averments contained in this paragraph. 25. Denied. The allegation is a conclusion oflaw to which no reply is required. 26. Denied. The allegation is a conclusion of law to which no reply is required. To the extent the allegation avers facts, the averments offact in the Second Amended Complaint are incorporated herein by reference thereto. 1 ~" , ~,' " ." " ,I~':""i ,': :;" ~ 27. Denied. The allegation is a conclusion oflaw to which no reply is required. WHEREFORE, Plaintiff, William E. Boyer, Jr., respectfully requests this Honorable Court to enter judgment in his favor and against Defendant, Ronald E. Harbold, in an amount that does not exceed the limits of arbitration in Cumberland County, Pennsylvania, plus costs. Respectfully submitted, Dated: Oc!ll R & GRIBBIN I ! I avid ills, Esq 're Supreme Court No. 7192 138 East Market Street PO Box 2588 York, PA 17405-2588 (717) 854-9506 Attorneys for Plaintiff, William E. Boyer, Jf. 2 . " '." ,'" ; -' '- --'~ "'.,: ',- " , , ~ ,', :0: ,~I', '^" , ~': ~I ! I :~ I I i ! VERIFICATION I, William E. Boyer, Jf., state upon personal knowledge or information that I believe to be true that the facts in the REPLY TO NEW MATTER, are true. I understand that false statements herein are made subject to the criminal penalties of 18 Pa. C.S. Sec. 4904, relating to unsworn falsification to authorities. Dated: .;1.,~.tJ/ 1'4A~~/ William E. Boyer, Jr. - ~ ~ ,,,' '--"" "- ":;,.' , > ,.", ~.":' J::~" -"~~': CERTIFICATE OF SERVICE I, David Mills, Esquire, hereby certify that I have served a true and correct copy of the foregoing REPLY TO NEW MATTER upon counsel for the Defendant, by depositing a copy of same in the United States Mail, regular delivery, postage prepaid as follows: Madelaine Baturin, Esquire Baturin & Baturin 717 North 2nd Street Harrisburg, P A 17102 ",tOO !f'ca:'(J ,Q~, By: ,/" avid Mil , Esquire Supreme Court No. 3719 13 8 East Market Street PO Box 2588 York, PA 17405-2588 (717) 854-9506 Attorneys for Plaintiff, William E. Boyer, Jr. ".- ' . ' '",,;, PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and sul::mitted in duplicate) TO THE PROTHONOTARY OF CUMBtRLAND COUNTY: Please list the Within matter far the next Argt:ment Court. --------------------------------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) William E. Boyer, Jr. ( Plaint:i:Ef) vs. Ronald E. Harbold ( Defendant) No. 2000-809 Civil Term 19 1. State matter to be argued (i.e., plaintiff's motion for new trial. defendant's d~ to canplaint. etc.): Preliminary Obj ections to Counterclaim 2. Identify counsel who will argue case: (a) for plaint:i:Ef: I\ddress: David Mills, Esquire (717)854-9506 Stetler & Gribbin 138 East Market Street, PO Box. 2588 York, PA 17405-2588 Madelaine Baturin, Esquire (717) 234-2427 Baturin & Baturin 717 North Second street Harrisburg, PA 17102 3. I will notiLy all parties in writing within two days that this case has been listed for ~t. (b) for defendant: I\ddress: 4. Argurent Court Date: Dated: July 2, 2001 , ,,~ --'', '0'" " , .'.1 "'i . . CERTIFICATE OF SERVICE I, David Mills, Esquire, hereby certify that I have served a true and correct copy of the foregoing PRAECIPE FOR LISTING CASE FOR ARGUMENT upon counsel for the Defendant, by depositing a copy of same in the United States Mail, regular delivery, postage prepaid as follows: Madelaine Baturin, Esquire Baturin & Baturin 717 North 2nd Street Harrisburg, P A 17102 O.red rI it ~oo, a id ills, ESqUl Supreme Court No. 37192 13 8 East Market Street PO Box 2588 York, PA 17405-2588 (717) 854-9506 Attorneys for Plaintiff, William E. Boyer, Jr. ~k~:'~ IF.' ,~ , :~~i.t' ~ ' '" ,';~:,J.,;:,:' ":);"",;' "'" "o~ 0 0 ocioo',o,~"'o",v ~", cd". 0 ,~"', o o \J~ r-~:!:_, ~. G~-,~ ;:::;C> ~r~ ~=i -< . o,.~ 000,0 ~~ , ~ C"} r- \ C,:" ~.'-J 1',) c~ :1 :::> f'0 .-0> :"''8 -< ." 'h"b'!',W''''''''''b~:.",r_'__''''''''''.'''''''''''''.c;,~'''i',,~'",1;<;t''''''i''.''''''O"\II'><''''''''1''',;-~''''~t-,., "',-,'".,'''''Ii'_!'1' ,,_'tl'- ':r~''''''~ ,., , , '"l""'<''''''''''''''~\'-V''c'l'' ,,,,H<" . C . CA cJ .; m '" ~ ~ .; 1" ." t"' '" :0 ~ 0 m z o ~ '" ~ z .. ~ ~ ~ ~ ~ ~ 6!1 ~ ~ ~ ~ ~ (;) ;;; ~ s: ~ - ~ :;: ~ I>:l ~ I>:l 0 - "' Z .(') 0 .() c: >'fj ~ -t'1 \.-1 elf fTl :.1J fllj'"1l OJ I"" Z:"JJ . ;-;-1 lli~ w ',}'':? '"+':'~ (') ~c..) ;p. ~~~1 ~~ ~o ~,: -.-c; ....9 )--=-c '-~~ ~; z :0 :;t en -< .\ ~">,;,,.;,:,,"".'" IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYL VANIA William E. Boyer, Jr., Plaintiff No. 2000-809 Civil Term v. Appeal from District Justice Judgment Ronald E. Harbold, Defendant Jury Trial Demanded PRAECIPE TO SETTLE AND SATISFY TO THE PROTHONOTARY: Please mark the above-captioned Docket and all matters concerning the said Docket "SETTLED, SATISFIED and DISCONTINUED." Respectfully submitted, Dated:o<l~ c2,ol By: Da 1 ills, sq ire Supreme Court . 37192 13 8 East Market Street PO Box 2588 York, PA 17405-2588 (717) 854-9506 Attorneys for Plaintiff, William E. Bo Dated: ~ ) {d, VIOl By: Madelaine Buturin, ESQJlire 613971 Supreme Court No. 717 North 2nd Street Harrisburg, P A 17102 Attorneys for Defendant, Ronald E. Harbold '~"" '~ ~ " 0 0 C) C ., I $, c::> -0 ri"' CO) nl .~ "-- :-T I Z l",~ (r) r'~_) c< "- -0 );,:0: F' - ~ " C: ry F C= ...~.., .- =< (.:> I"~ i: 'I!: , , Iii ", 1111, !! i; , !ii i: II Iii i:! 1~ I" ii II II 'I !, II ,I ~ 'II !il I' " Ii " I! I