HomeMy WebLinkAbout00-01280
BRENDA A. HAIR,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 2000 -1280 CIVIL TERM
PETER M. ZURPHY, t/d/b/a
SlllPPENSBURG TRUCK AND
AUTO SALES,
Defendant
: CIVIL ACTION - LAW
NOTICE
YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE
CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN
TWENTY DAYS AFTER TIllS 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 FAll-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
717-249-3166
DATE: May 15, 2000
.,-
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BRENDA A. HAIR,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 2000- 1280 CIVIL TERM
PETER M. ZURPHY, t/dlb/a
SHIPPENSBURG TRUCK AND
AUTO SALES,
Defendant
CIVIL ACTION - LAW
AMENDED COMPLAINT
I. The plaintiff, Brenda A. Hair, is an adult individual residing at 128 Springfield Road,
West Pennsboro Township, Cumberland County, Pennsylvania.
2. The defendant, Peter M. Zurphy (correct spelling: Peter M. Zerphy), is an adult
individual residing at 1755 Doubling Gap Road, Lower Mifflin Township, Cumberland County,
Pennsylvania.
3. Defendant Peter M. Zerphy trades and does business as Shippensburg Truck and Auto
Sales, a sole proprietorship located at 500 W. King Street, Shippensburg, Franklin County,
Pennsylvania, and regularly conducts business in Cumberland County, Pennsylvania.
4. Defendant is engaged in the business of selling used vehicles and performing
automobile repairs.
5. On or about September 14, 1999, Plaintiff purchased from Defendant a 1986 Dodge
Caravan, Vehicle Identification Number 2B4FK51G8GR865079, for a price of$I,526.75, plus
tax and fees, at a total cost of$I,732.36. A copy of the purchase order for said vehicle is
attached hereto, incorporated by reference and marked as Plaintiff's Exhibit "A."
6. Said vehicle was sold with an express warranty that covered 100% of the cost oflabor
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and parts necessary to repair all internally lubricated parts of the engine and transmission which
failed within 30 days or 1000 miles, whichever came first. A copy of said warranty is attached
hereto, incorporated by reference, and marked as Plaintiff's Exhibit "B."
7. In or about August 1999, prior to Plaintiff's purchase of the van, Jason, an employee
and agent of Defendant, promised Plaintiff that Defendant would install a new battery, correct an
idling problem, correct a bucking problem occurring when the vehicle was put in reverse, replace
the transmission mounts and motor mounts, and repair the carburetor in the vehicle before
Plaintiff picked it up.
8. Plaintiff relied upon this promise to repair the van in making her decision to
purchase it.
9. On or about September 14, 1999, when Plaintiff paid for the vehicle and completed
the paperwork necessary to purchase it, Jason informed Plaintiff that the vehicle was not fixed
yet, but that it would be ready the next day.
10. On or about September IS, 1999, Ben, another agent and employee of Defendant,
informed Plaintiff that the vehicle was "ready to go," and Plaintiff picked it up.
II. On or about September 15, 1999, on the same date that Plaintiff picked up the
vehicle, the vehicle was difficult to start, emitted gray smoke out of the exhaust, made a
clunking noise during turns and accelerated very sluggishly.
12. On that same date, after Plaintiff was unable to re-start the vehicle, which was parked
at her residence, she called Defendant and requested that he tow the vehicle to Defendant's car
lot to be repaired, which Defendant refused to do.
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13. On that same date, after making further efforts, an acquaintance of Plaintiff was able
to start the vehicle and Plaintiff drove it to Defendant's car lot.
14. Ben, an employee and agent of Defendant, informed Plaintiff that the vehicle
required a transmission mount, a carburetor and a new battery, and told Plaintiff that Defendant
would have to keep the vehicle in order to make these repairs.
15. On or about September 21, 1999, one of Defendant' s agents informed Plaintiff that
the van had been repaired, and she picked it up.
16. The same day that Plaintiff picked up the van it continued to spew gray smoke,
"buck" when put into reverse, drive sluggishly and make a clunking noise during turns.
17. Also, the same day that Plaintiff picked up the van, she observed that the brakes
squealed, which she learned was caused by two cracked brake shoes and two worn brake pads.
18. Plaintiff informed one of Defendant's agents of the problems with the van on that
same day and requested that Defendant repair them, but Defendant's agent refused.
19. The brakes were defective on the date that Plaintiff purchased the vehicle.
20. The vehicle has numerous other substantial defects, which existed at the time of
purchase, including but not limited to the following:
a. a defective engine, that was designed for a car rather than a van, which misses,
smokes and has grossly insufficient power
b. a defective carburetor that was not suitable for the vehicle's engine
c. a defective transmission and worn transmission mounts
d. wom engine mounts
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e. emission hoses and devices that were not connected or were missing pieces
f. air conditioning hoses that were cut off of the van
g. power steering hose that rubbed on the axle shaft
h. engine compartment wiring harness had been cut and spliced in several places
i. worn timing chain
j. worn steering and suspension parts
21. Defendant has failed or refused to repair said defects.
22. Defendant sold the vehicle to Plaintiff when Defendant knew or should have known
of said defects, and failed to disclose said defects to Plaintiff.
23. Plaintiff has operated said vehicle primarily in Cumberland County, Pennsylvania,
where she has experienced most of the difficulties with the vehicle described above.
24. Due to the above defects, Plaintiff is unable to safely operate said vehicle, it is not
roadworthy and it has no value to Plaintiff.
Count 1. Fraud
25. Plaintiff repeats and incorporates by reference her averments set forth above in
Paragraphs I through 24.
26. Defendant, personally and/or through his agents, willfully, intentionally and
maliciously misrepresented to Plaintiff the vehicle's condition and Defendant's intentions with
respect to repairing the vehicle, in order to induce Plaintiff to purchase it.
27. Plaintiff reasonably relied on said representations, to her detriment, in deciding to
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purchase the vehicle, in that she incurred significant expense to purchase the vehicle, and
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suffered substantial annoyance and in convenience due to its defects.
28. Defendant's actions as set forth herein constitute fraud.
WHEREFORE, Plaintiff requests that she be awarded a judgment in her favor and against
Defendant in the amount of$I,732.36 to compensate her for her expenditures to purchase the
vehicle, and such other and further relief as this Court may deem reasonable and just.
Count II. Breach of Exoress Warranties
29. Plaintiff repeats and incorporates by reference her averments set forth above in
Paragraphs 1 through 28.
30. Defendant's failure to repair defects in the engine and transmission constitutes a
breach of the express written warranty which came with the vehicle, which is set forth above in
Exhibit "B."
31. Defendant's failure to install a new battery, correct the idling problem, correct the
bucking problem, replace the transmission mounts and engine mounts, and repair the carburetor
constitutes a breach of an express verbal warranty to make these repairs.
WHEREFORE, Plaintiff respectfully requests that judgment be entered in her favor and
against Defendant in the amount of$I,732.36.
Count III. Breach of Imolied Warranty of Merchantabilitv
32. Plaintiff repeats and incorporates by reference her averments set forth above in
Paragraphs I through 31.
33. Defendant's sale to Plaintiff of this defective vehicle, and Defendant's failure to
make repairs which would render the vehicle operational, safe and roadworthy, constitute a
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breach of the implied warranty of merchantability, as set forth in 13 P.S. Section 2314.
WHEREFORE, Plaintiff respectfully requests that she be awarded ajudgment in her
favor and against Defendant in the amount of$I,732.36.
Count IV. Violation of the Unfair Trade Practices and Consumer Protection Law
34. Plaintiff repeats and incorporates by reference her avennents set forth above in
Paragraphs I through 33.
35. At all times relevant hereto, Defendant was engaged in trade or commerce, as defined
in the Unfair Trade Practices and Consumer Protection Law, 73 P.S. Section 201-2(3).
36. Defendant's acts, personally and/or through his agents, constituted unfair methods of
competition or unfair or deceptive acts or practices as defined by 73 P.S. Section 201-2(4) and 73
P.S. Section 201-3, in that the Defendant, personally and/or through his agents:
a. represented that the vehicle had characteristics, uses or benefits that it did not
have;
b. represented that the vehicle was of a particular standard, quality or grade, when
it was of another;
c. made repairs to the vehicle of a nature or quality inferior to or below the
standard of that agreed to in writing;
d. engaged in other fraudulent or deceptive conduct which created a likelihood of
confusion or of misunderstanding.
37. Defendant's acts described above, personally and/or through his agents, are also
unfair methods of competition or unfair or deceptive acts or practices as defined by regulations
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promulgated under 73 P.S. Section 201-3.1, in that the vehicle was not roadworthy at the time of
sale, and Defendant knew or should have known that it was unable to pass state inspection and
that the transmission was damaged, defective or so deteriorated as to require replacement, yet did
not disclose these defects to Plaintiff, contrary to 37 Pa. Code 30 1.2( 5).
38. As a result of Defendant's unfair methods of competition and unfair or deceptive acts
or practices, Plaintiff has suffered an ascertainable loss of$I,732.36.
WHEREFORE, Plaintiff prays for the following relief:
A. Judgment against Defendant in the amount of $1,732.36;
B. Judgment against Defendant in the amount of$5,197.08 representing three times the
actual damages Plaintiff has sustained, pursuant to 73 P.S. Section 201-9.2(a);
C. Any other relief that this Court deems proper.
Count V. Punitive Damages
39. Plaintiffrepeats and incorporates by reference her averments set forth above in
Paragraphs I through 38.
40. Defendant's actions as set forth above, personally and/or through his agents, were
willful, wanton, reckless, and outrageous, and perpetrated with complete disregard of Plaintiffs
rights under Pennsylvania law.
WHEREFORE, Plaintiff requests that judgment for punitive damages be entered in her
favor and against Defendant in the amount of $5,000.00.
THE AMOUNT IN CONTROVERSY IN THIS ACTION IS LESS THAN $25,000.00 AND
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WITHIN THE SUM REQUIRING COMPULSORY ARBITRATION.
Respectfully submitted,
PhIlip C. B ganti
Attorney for Plaintiff
LEGAL SERVICES, INC.
8 Irvine Row
Carlisle, PA 17013
(717) 243-9400
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VERIFICATION
The above-named plaintiff, Brenda A. Hair, verifies that the statements set forth in the
foregoing Amended Complaint are true and correct. Plaintiff understands that false statements
herein are made subject to the penalties of 18 P.S. ~4904, relating to unsworn falsification to
authorities.
Date: ~c:o
~l100d~_(l.~~
Brenda A. Hair
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CERTIFICATE OF SERVICE
I, Philip C. Briganti, hereby certify that I am this 15th day of May, 2000, serving the
foregoing Notice and Amended Complaint upon the defendant by mailing a true copy of said
documents to the defendant's attorney of record, Sally 1. Winder, Esquire, 701 East King Street,
Shippensburg, PA 17257, by first-class U.S. mail, postage prepaid.
ilip C. riganti
Attomey for Plaintiff
LEGAL SERVICES, lNe.
8 Irvine Row
Carlisle, PA 17013
(717) 243-9400
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SHERIFF'S RETURN - REGULAR
CASE NO: 2000-01280 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
HAIR BRENDA
VS
ZURPHY PETER M ET AL
BRIAN BARRICK
, Sheriff or Deputy Sheriff of
Cumberland County, Pensylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE
was served upon
ZURPHY PETER M T/D/B/A SHIPPENSBURG BIG TRUCK AUTO SL
the
DEFENDANT
at 0010:39 HOURS, on the 15th day of March
2000
at 1755 DOUBLING GAP ROAD
NEWVILLE, PA 17241
by handing to
PETER M. ZURPHY
a true and attested copy of COMPLAINT & NOTICE
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
18.00
8.68
.00
10.00
.00
36.68
S;;;;Z4t~~~~
R. Thomas Kline
me this t. ~
day of
03/15/2000
By, ~m.&Jj
Deputy Sneriff
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Sworn and Subscribed to before
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C)r' 0 rrn,If,.J ~
rothonotary .
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BRENDA HAIR,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
v.
: CUMBERLAND COUNTY, PENNSYL VANIA
: NO. 2000 -1.2-SO CIVIL TERM
PETER M. ZURPHY, tJd/b/a
SIllPPENSBURG BIG TRUCK AND
AUTO SALES,
Defendant
: CIVll.. ACTION - LAW
NOTICE
YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE
CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN
TWENTY 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
717-249-3166
(:
DATE: March 7, 2000
,
BRENDA A. HAIR,
Plaintiff
v.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2000-102 .f<1CIVIL TERM
PETER M. ZURPHY, t/d/b/a
SHIPPENSBURG TRUCK AND
AUTO SALES,
Defendant
CIVIL ACTION - LAW
COMPLAINT
I. The plaintiff, Brenda A Hair, is an adult individual residing at 128 Springfield Road,
West Pennsboro Township, Cumberland County, Pennsylvania.
2. The defendant, Peter M. Zurphy, is an adult individual residing at 1755 Doubling Gap
Road, Lower Mifflin Township, Cumberland County, Pennsylvania.
3. Defendant Peter M. Zurphy trades and does business as Shippensburg Truck and Auto
Sales, a sole proprietorship located at 500 W. King Street, Shippensburg, Cumberland County,
Pennsylvania.
4. Defendant is engaged in the business of selling used vehicles, as well as automobile
repaIr.
5. On or about September 14, 1999, Plaintiff purchased from Defendant a 1986 Dodge
Caravan, Vehicle Identification Number 2B4FK5IG8GR865079, for a price of$1,526.75, plus
tax and fees, at a total cost of$I,732.36. A copy of the purchase order for said vehicle is
attached hereto, incorporated by reference and marked as Plaintiff's Exhibit "A."
6. Said vehicle was sold with an express warranty that covered 100% of the cost oflabor
and parts necessary to repair all internally lubricated parts of the engine and transmission which
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failed within 30 days or 1000 miles, whichever came first. A copy of said warranty is attached
hereto, incorporated by reference, and marked as Plaintiffs Exhibit "B."
7. In or about August 1999, prior to Plaintiffs purchase of the van, Jason, an employee
and agent of Defendant, promised Plaintiff that Defendant would install a new battery, correct an
idling problem, correct a bucking problem occurring when the vehicle was put in reverse, replace
the transmission mounts and motor mounts, and repair the carburetor in the vehicle before
Plaintiff picked it up.
8. Plaintiff relied upon this promise to repair the van in making her decision to
purchase it.
9. On or about September 14, 1999, when Plaintiff paid for the vehicle and completed
the paperwork necessary to purchase it, Jason informed Plaintiff that the vehicle was not fixed
yet, but that it would be ready the next day.
10. On or about September IS, 1999, Ben, another agent and employee of Defendant,
informed Plaintiff that the vehicle was "ready to go," and Plaintiff picked it up.
11. On or about September 15, 1999, the same date that Plaintiff picked up the vehicle, it
was difficult to start, emitted gray smoke out of the exhaust, made a clunking noise during turns
and accelerated very sluggishly.
12. On that same date, after Plaintiff was unable to re-start the vehicle after repeated
efforts, she called Defendant and requested that he tow the vehicle to Defendant's car lot to be
repaired, which Defendant refused to do.
13. On that same date, after making further efforts, an acquaintance of Plaintiff was able
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to start the vehicle and Plaintiff drove it to Defendant's car lot.
14. Ben, an employee and agent of Defendant, informed Plaintiff that the vehicle
required a transmission mount, a carburetor and a new battery, and told Plaintiff that Defendant
would have to keep the vehicle in order to make these repairs.
IS. On or about September 21, 1999, one of Defendant' s agents informed Plaintiff that
the van had been repaired, and she picked it up.
16. The same day that Plaintiff picked up the van it continued to spew gray smoke,
"buck" when put into reverse, drive sluggishly and make a clunking noise during turns.
17. Also, the same day that Plaintiff picked up the van, she observed that the brakes
squealed, which she learned was caused by two cracked brake shoes and two wom brake pads.
18. Plaintiff informed one of Defendant' s agents of the problems with the van on that
same day and requested that Defendant repair them, but Defendant's agent refused.
19. The brakes were defective on the date that Plaintiff purchased the vehicle.
20. The vehicle has numerous other substantial defects, which existed at the time of
purchase, including but not limited to the following:
a. a defective engine, that was designed for a car rather than a van, which misses,
smokes and has grossly insufficient power
b. a defective carburetor that was not suitable for the vehicle's engine
c. a defective transmission and wom transmission mounts
d. worn engine mounts
e. emission hoses and devices that were not connected or were missing pieces
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f. air conditioning hoses that were cut off of the van
g. power steering hose that rubbed on the axle shaft
h. engine compartment wiring harness had been cut and spliced in several places
1. worn timing chain
J. worn steering and suspension parts
21. Defendant has failed or refused to repair said defects.
22. Defendant sold the vehicle to Plaintiff when Defendant knew or should have known
of said defects, and failed to disclose said defects to Plaintiff.
23. Due to the above defects, Plaintiff is unable to safely operate said vehicle, it is not
roadworthy and it has no value to Plaintiff.
Count 1. Fraud
24. Plaintiff repeats and incorporates by reference her averments set forth above in
Paragraphs 1 through 23.
25. Defendant, personally and/or through his agents, willfully, intentionally and
maliciously misrepresented to Plaintiff the vehicle's condition and Defendant's intentions with
respect to repairing the vehicle, in order to induce Plaintiff to purchase it.
26. Plaintiff reasonably relied on said representations, to her detriment, in deciding to
purchase the vehicle, in that she incurred significant expense to purchase the vehicle, and
suffered substantial annoyance and in convenience due to its defects.
27. Defendant's actions as set forth herein constitute fraud.
WHEREFORE, Plaintiff requests that she be awarded a judgment in her favor and against
Defendant in the amount of $l, 732.36 to compensate her for her expenditures to purchase the
vehicle, and such other and further relief as this Court may deem reasonable and just.
Count II. Breach of Exnress Warranties
28. Plaintiff repeats and incorporates by reference her averments set forth above in
Paragraphs I through 27.
29. Defendant's failure to repair defects in the engine and transmission constitutes a
breach ofthe express written warranty which came with the vehicle, which is set forth above in
Exhibit "B."
30. Defendant's failure to install a new battery, correct the idling problem, correct the
bucking problem, replace the transmission mounts and engine mounts, and repair the carburetor
constitutes a breach of an express verbal warranty to make these repairs.
WHEREFORE, Plaintiff respectfully requests that judgment be entered in her favor and
against Defendant in the amount of $1,732.36.
Count III. Breach ofImplied Warranty of Merchantabilitv
31. Plaintiff repeats and incorporates by reference her averments set forth above in
Paragraphs I through 30.
32. Defendant's sale to Plaintiff of this defective vehicle, and Defendant's failure to
make repairs which would render the vehicle operational, safe and roadworthy, constitute a
breach of the implied warranty of merchantability, as set forth in 13 P.S. Section 2314.
WHEREFORE, Plaintiff respectfully requests that she be awarded a judgment in her
favor and against Defendant in the amount of$I,732.36.
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Count IV. Violation of the Unfair Trade Practices and Consumer Protection Law
33. Plaintiff repeats and incorporates by reference her averments set forth above in
Paragraphs I through 32.
34. At all times relevant hereto, Defendant was engaged in trade or commerce, as defined
in the Unfair Trade Practices and Consumer Protection Law, 73 P.S. Section 201-2(3).
35. Defendant's acts, personally and/or through his agents, constituted unfair methods of
competition or unfair or deceptive acts or practices as defmed by 73 P.S. Section 201-2(4) and 73
P.S. Section 201-3, in that the Defendant, personally and/or through his agents:
a. represented that the vehicle had characteristics, uses or benefits that it did not
have;
b. represented that the vehicle was of a particular standard, quality or grade, when
it was of another;
c. made repairs to the vehicle of a nature or quality inferior to or below the
standard of that agreed to in writing;
d. engaged in other fraudulent or deceptive conduct which created a likelihood of
confusion or of misunderstanding.
36. Defendant's acts described above, personally and/or through his agents, are also
unfair methods of competition or unfair or deceptive acts or practices as defined by regulations
promulgated under 73 P.S. Section 201-3.l, in that the vehicle was not roadworthy at the time of
sale, and Defendant knew or should have known that it was unable to pass state inspection and
that the transmission was damaged, defective or so deteriorated as to require replacement, yet did
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not disclose these defects to Plaintiff, contrary to 37 Pa. Code 301.2(5).
37. As a result of Defendant's unfair methods of competition and unfair or deceptive acts
or practices, Plaintiff has suffered an ascertainable loss of$I,732.36.
WHEREFORE, Plaintiff prays for the following relief:
A. Judgment against Defendant in the amount of $1,732.36;
B. Judgment against Defendant in the amount of$5,197.08 representing three times the
actual damages Plaintiff has sustained, pursuant to 73 P.S. Section 201-9.2(a);
C. Any other relief that this Court deems proper.
Count V. Punitive Damages
38. Plaintiff repeats and incorporates by reference her averments set forth above in
Paragraphs I through 37.
39. Defendant's actions as set forth above, personally and/or through his agents, were
willful, wanton, reckless, and outrageous, and perpetrated with complete disregard of Plaintiff's
rights under Pennsylvania law.
WHEREFORE, Plaintiff requests that judgment for punitive damages be entered in her
favor and against Defendant in the amount of $5,000.00.
THE AMOUNT IN CONTROVERSY IN THIS ACTION IS LESS THAN $25,000.00 AND
WITHIN THE SUM REQUIRING COMPULSORY ARBITRATION.
Respectfully submitted,
Philip C. riganti
Attorney for Plaintiff
LEGAL SERVICES, INC.
8 Irvine Row
Carlisle, P A 17013
(717) 243-9400
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VERIFICATION
The above-named plaintiff, Brenda A. Hair, verifies that the statements set forth in the
foregoing Complaint are true and correct. Plaintiff understands that false statements herein are
made subject to the penalties of IS P.S. 94904, relating to unswom falsification to authorities.
Date:;:J - 'J ,1:) -()()
(F\rLQ n6o~ 0-.. ~ GJ
Brenda A. Hair
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BRENDA A. HAIR
Plaintiff
IN THE COURT OF COMMON PLEAS OF
v.
CUMBERLAND COUNTY , PENNSYLVANIA
"lS'V
NO. 2000 J CIVIL TERM
PETER M. ZURPHY, t/d/b/a
SHIPPENSBURG TRUCK AND
AUTO SALES,
Defendant
PRAECIPE TO PROCEED IN FORMA PAUPERIS
To the Prothonotary:
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Kindly allow, Brenda A. Hair, Plaintiff, to proceed in forma pauperis.
I, Philip C. Briganti, attorney for the party proceeding in forma pauperis, certify that I believe the
party is unable to pay the costs and that I am providing free legal services to the party. The party's affidavit
showing inability to pay the costs of litigation is attached hereto.
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Attorney for Plaintiff
LEGAL SERVICES, INC.
8 Irvine Row
Carlisle, PA 17013
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BRENDA A. HAIR
Plaintiff
IN THE COURT OF COMMON PLEAS OF
v.
CUMBERLAND COUNTY, PENNSYLVANIA
J.fD
NO. 2000 -I CIVIL TERM
PETER M. ZURPHY, tld/b/a
SHIPPENSBURG TRUCK AND
AUTO SALES,
Defendant
AFFIDAVIT IN SUPPORT OF PETITION
FOR LEA VB TO PROCEED IN FORMA PAUPERIS
1. I am the plaintiff in the above matter and because of my [mancial condition am unable to pay the
fees and costs of prosecuting, defending, or appealing the action or proceeding.
2. I am unable to obtain funds from anyone, including my family and associates, to pay the costs of
litigation.
3. I represent that the information below relating to my ability to pay the fees and costs is true and
correct.
(a) Name:
Brenda Hair
Address:
128 Springfield Road
Newville. PA 17241
(b) Social Security Number: 173-68-8953
If you are presently employed, state
Employer:
Agway
Address:
530 E. North Street
CarliSle P A 17013
Salary or wages per month:
$429/!!ross
Type of work:
Customer service rt;p
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If you are presently unemployed, state
Date of last employment:
Salary or wages per month:
Type of work:
(c) Other income within the past twelve months
Business or profession: NI A
Other self-employment: Babysitting: 5199-8/99 $350/month
Interest: NI A
Dividends: NI A
Pension and annuities: NI A
Social Security benefits: NI A
Support payments: NI A
Disability payments: NI A
Unemployment compensation and
supplemental benefits: NI A
Workman's compensation: N/A
Public Assistance: NI A
Other: Wic monthly voucher $112.00
(d) Other contributions to household support
(Wife)(Husband) Name:
N/A
If your (husband) (wife) is employed, state
Employer:
N/A
Salary or wages per month:
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Type of work:
Contributions from children:
(e) Property owned
Cash: $11.00
Checking Account: $55.00
Savings Account: $25.00
Certificates of Deposit: NI A
Real Estate (including home): N/A
Motor vehicle: Make Dodge Caravan
Year 1986
Cost $1700
Amount owed $0
Stocks; bonds:
N/A
Other:
N/A
(f) Debts and obligations
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Mortgage:
N/A
Rent:
N/A
Loans:
N/A
Monthly Expenses:
Groceries $140.00: Telephone $56: Auto insurance $40
Gas for vehicle $80: Miscellanous expenses $100:
(g) Persons dependent upon you for support
(Wife) (Husband) Name: Matthew Robinson - boyfriend
Children, if any:
Name: Anthony Robinson
Age:
2 years
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4. I understand that I have a continuing obligation to inform the court of improvement in my
financial circumstances which would permit me to pay the costs incurred herein.
5. I verify that the statements made in this affidavit are true and correct. I understand that false
statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unsworn falsification to
authorities.
Dated -- ') S - 00
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BRENDA HAIR,
Plaintiff
:IN THE COURT OF COMMON PLEAS OF
:CUMBERLAND COUNTY, PENNSYLVANIA
v.
: No. 2000-1280 CIVIL TERM
PETER ZURPHY, t/dlb/a
SHIPPENSBURG BIG TRUCK : CIVIL ACTION - LAW
AND AUTO SALES,
Defendant
PRELIMINARY OBJECTIONS
Comes now the Defendant, Peter Zerphy, tJdlb/a Shippensburg Big Truck and
Auto Sales, by and through his counsel and does file the following preliminary objections
to Plaintiff's Complaint:
1. Pa. RC.P. No. 1006 provides that an action against an individual may be
brought only in a county where that person may be served or the cause ofactioil arose or
where the transaction took place.
2. As to all business entities such as partnerships, associations, corporations,
or similar entities, actions may only be brought in the county where the transaction
occurred or where the entity regularly conducts business.
3. In the instant action, the Defendant, Peter Zerphy's business, Shippensburg
Truck and Auto Sales, has a principal place of business at 500 West King Street,
Shippensburg, Franklin County, Pennsylvania. The transaction which is the basis of the
Complaint occurred in Franklin County; all business records are located in Franklin
County, as are the employee witnesses to this transaction.
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4. Defendant has neither a place of business nor registered office in
Cumberland County.
5. Defendant objects to the jurisdiction of this Court because venue is
improper, in that the action was not brought in accordance with the Pennsylvania Rules of
Civil Procedure.
WHEREFORE, Defendant requests this Complaint be dismissed, or in the
alternative, that the action be transferred to Franklin County.
Respectfully submitted,
~JjJ~
Sally J. der
Attorney for Defendant
701 East King Street
Shippensburg, PA 17257
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VERIFICATION
I verifY that the statements made in these preliminary objections are true and correct to the
best of my personal knowledge and belief. I understand that false statements herein are made
subject to the penalties of IS Pa. C.S. Section 4904, relating to unsworn falsification to
authorities.
Date: t.-) 1-;;.-400
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Attorney at Law
701 E, King Street
Shipqensburg, fA 17257
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BRENDA A. HAIR,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 2000- 1280 CIVIL TERM
PETER M. ZURPHY, t/d/b/a
SHIPPENSBURG TRUCK AND
AUTO SALES,
Defendant
CIVIL ACTION - LAW
PRAEC~ETOCORRECTCAPTION
To the Prothonotary:
Please correct the spelling of the defendant's last name in the caption of the above-
captioned case, which should be "Zerphy".
Date: '/9/ PO
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P 'lip C. B . ganti
Counsel for Plaintiff
LEGAL SERVICES, INC.
8 Irvine Row
Carlisle, P A 17013
(717) 243-9400
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CERTIFICATE OF SERVICE
I, Philip C. Briganti, hereby certify that I am this 9th day of June, 2000, serving the
foregoing Praecipe to Correct Caption upon the defendant by mailing a true copy of the same to
the defendant's attorney of record, Sally J. Winder, Esquire, 701 East King Street, Shippensburg,
P A 172S7, by first-class U.S. mail, postage prepaid.
'lip C. riganti
Attorney for Plainti
LEGAL SERVICES, INC.
8 Irvine Row
Carlisle, PA 17013
(717) 243-9400
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BRENDA HAIR,
Plaintiff
:IN THE COURT OF COMMON PLEAS OF
:CUMBERLAND COUNTY, PENNSYLVANIA
v.
: No. 2000-1280 CIVIL TERM
PETER ZURPHY, t/d/b/a
SHlPPENSBURG BIG TRUCK : CIVIL ACTION - LAW
AND AUTO SALES,
Defendant
PRELIMINARY OBJECTIONS TO
AMENDED COMPLAINT
Comes now the Defendant, Peter Zerphy, tldlb/a Shippensburg Truck and
Auto Sales, by and through his counsel and does file the following preliminary objections
to Plaintiff's Complaint:
1. Pa, RC.P, No, 1006 provides that an action against an individual may be
brought only in a county where that person may be served or the cause of action arose or
where the transaction took place.
2, As to all business entities such as partnerships, associations, corporations,
or similar entities, actions may only be brought in the county where the transaction
occurred or where the entity regularly conducts business.
3. In the instant action, the Defendant, Peter Zerphy's business, Shippensburg
Truck and Auto Sales, has a principal place of business at 500 West King Street,
Shippensburg, Franklin County, Pennsylvania. The transaction which is the basis of the
Complaint occurred in Franklin County; all business records are located in Franklin
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County, as are the employee witnesses to this transaction.
4. Defendant has neither a place of business nor registered office in
Cumberland County. Defendant does not regularly conduct business in Cumberland
County and none of the alleged misrepresentations or business dealings complained of
in this matter occurred in Cumberland County. On the contrary all matters of business
dealings and repair or failure to repair as well as all of the negotiation and consumation of
the subject transaction occurred in Franklin County.
5. Defendant objects to the jurisdiction of this Court because venue is
improper, in that the action was not brought in accordance with the Pennsylvania Rules of
Civil Procedure.
WHEREFORE, Defendant requests this Complaint be dismissed, or in the
alternative, that the action be transferred to Franklin County.
Respectfully submitted,
U-c
Sally J. i der
Attorney r Defendant
701 East King Street
Shippensburg, P A 17257
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BRENDA A. HAIR,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 2000- 1280 CIVIL TERM
PETER M. ZERPHY, t/dlbla
SHIPPENSBURG TRUCK AND
AUTO SALES,
Defendant
CIVIL ACTION - LAW
PLAINTIFF'S RESPONSE TO DEFENDANT'S PRELIMINARY
OBJECTIONS TO AMENDED COMPLAINT
COMES NOW the plaintiff, Brenda A. Hair, by counsel, and responds to Defendant's
Preliminary Objections to Amended Complaint as follows:
1. Denied. Pa. RC.P. No. 1006(a) provides, in relevant part, that "an action against an
individual may be brought in and only in a county in which the individual may be served or in
which the cause of action arose or where a transaction or occurrence took place out of which the
cause of action arose or in any other county authorized by law."
2. Denied. The Note to Pa. RC.P. No. 2176 defines the term "corporation or similar
entity" to include "all associations and business entities which are regarded as separate and
distinct from their members." According to Pa. RC.P. No. 2179(a), an action against an
organization falling within this definition must be brought in the county where its registered
office or principal place of business is located; a county where it regularly conducts business; the
county where the cause of action arose; or a county where a transaction or occurrence took place
out of which the cause of action arose.
3. Admitted in part and denied in part. It is admitted that the defendant's business,
Shippensburg Truck and Auto Sales, has a principal place of business at 500 W. King Street,
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Shippensburg, Franklin County, Pennsylvania. Plaintiff is without knowledge or information
sufficient to ascertain whether all of Defendant's business records or the employee witnesses are
located within Franklin County, and therefore denies this averment. However, Peter M. Zerphy,
who is the named defendant in this matter and one of the primary witnesses to the transactions
and occurrences relevant hereto, resides in Cumberland County. It is denied that "the"
transaction which is the basis for this Complaint occurred in Franklin County. Rather, the
numerous transactions and occurrences out of which Plaintiffs claims arose occurred both in
Cumberland and Franklin Counties.
4. Admitted in part and denied in part. Plaintiff admits that Defendant has neither a
place of business nor registered office in Cumberland County. Plaintiff denies that Defendant
does not regularly conduct business in Cumberland County, and denies that none of the alleged
misrepresentations or business dealings complained of in this matter occurred in Cumberland
County. Plaintiff denies that all matters of business dealings and repair or failure to repair, as
well as all of the negotiation and consummation of the subject transaction, occurred in Franklin
County. Rather, Plaintiff avers that many such transactions and occurrences relevant in this
action occurred in Cumberland County.
5. Denied. Plaintiff denies that venue in this action is improper. The named defendant,
Peter M. Zerphy, the individual against whom Plaintiff seeks judgment, was served in
Cumberland County, where he resides. On this basis alone, venue is proper under Pa. R.C.P. No.
1006. Because judgment is sought against Mr. Zerphy personally, on account of his actions and
those of his agents in this matter, this is the venue rule relevant to this case. Pa. R.C.P. No. 2179
'1-:
is not the applicable rule, because Shippensburg Truck and Auto Sales is not a "corporation or
similar entity" which is "separate and distinct" from its members. This business is a sole
proprietorship and, as such, it is not distinct from Mr. Zerphy, against whom a personal judgment
is being sought and would be enforced. However, even if Rule 2179 were deemed applicable in
this matter, venue properly lies in Cumberland County because many of the transactions and
occurrences forming the foundation for Plaintiff s cause of action occurred here, and Defendant
regularly conducts business in Cumberland County.
WHEREFORE, Plaintiff requests that the relief requested by Defendant be denied, and
that venue remain in Cumberland County.
Respectfully submitted,
(
PIlip C. B ganti
Counsel for Plaintiff
LEGAL SERVICES, INC.
8 Irvine Row
Carlisle, P A 17013
(717) 243-9400
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VERIFICATION
The above-named plaintiff, Brenda A. Hair, verifies that the statements set forth in the
foregoing pleading are true and correct. Plaintiff understands that false statements herein are
made subject to the penalties of IS P .S. 94904, relating to unswom falsification to authorities.
Date:'!' ')l.J-r:o
(bl1OJ1Qb aai0i0
Brenda A. Hair, Plaintlf
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CERTIFICATE OF SERVICE
I, Philip C. Briganti, hereby certify that I am this 24'h day of July, 2000, serving the
foregoing Plaintiffs Response to Defendant's Preliminary Objections to Amended Complaint
upon the defendant by mailing a true copy of the same to the defendant's attorney ofrecord,
Sally J. Winder, Esquire, 701 East King Street, Shippensburg, PA 17257, by first-class U.S. mail,
postage prepaid.
Philip C. iganti
Attorney for Plaintiff
LEGAL SERVICES, INC.
8 Irvine Row
Carlisle, PA 17013
(717) 243-9400
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BRENDA A. HAIR,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 2000- 1280 CIVIL TERM
PETER M. ZERPHY, tld/b/a
SHIPPENSBURG TRUCK AND
AUTO SALES,
Defendant
CIVIL ACTION. LAW
PRAECIPE TO ATTACH EXHIBITS TO AMENDED COMPLAINT
TO THE PROTHONOTARY:
Kindly attach the following Exhibits "A" and "B" to the Amended Complaint in the
above-captioned case, which I inadvertently failed to attach to said pleading when it was filed on
May IS, 2000.
Date: $P1/ c;0
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Counsel for Plaintiff
LEGAL SERVICES, INC.
8 Irvine Row
Carlisle, P A 17013
(717) 243-9400
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BRENDA A. HAIR,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 2000- 1280 CIVIL TERM
PETER M. ZERPHY, t/dIb/a
SHIPPENSBURG TRUCK AND
AUTO SALES,
Defendant
CIVIL ACTION - LAW
CERTIFICATE OF SERVICE
I, Philip C. Briganti, hereby certify that I am this 24th day of August, 2000, serving the
foregoing Praecipe to Attach Exhibits to Amended Complaint upon the defendant by mailing a
true copy of the same to the defendant's counsel of record, Sally 1. Winder, Attomey-at-Law,
701 East King Street, Shippensburg, PA I 7257, by first-class U.S. mail, postage prepaid.
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Attorney for Plaintiff
LEGAL SERVICES, INC.
8 Irvine Row
Carlisle, PA 17013
(717) 243-9400
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BRENDA A. HAIR,
PLAINTIFF
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
PETER M. ZERPHY tJd/b/a
SHIPPENSBURG TRUCK AND
AND AUTO SALES,
DEFENDANT
: 00-1280 CIVIL TERM
IN RE: PRELIMINARY OBJECTION OF DEFENDANT TO PLAINTIFF'S
AMENDED COMPLAINT
BEFORE BAYLEY. J. AND GUIDO. J.
ORDER OF COURT
AND NOW, this '2 If- day of September, 2000, the preliminary objection of
defendant to plaintiff's complaint, IS DISMISSED.
Edg8' B. Bay1oy, J. " ~
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Philip C. Briganti, Esquire
For Plaintiff
Sally Winder, Esquire
For Defendant
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CUM"'"'' .... " -OUNTY
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BRENDA A. HAIR,
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
PETER M. ZERPHY tld/b/a
SHIPPENSBURG TRUCK AND
AND AUTO SALES,
DEFENDANT
00-1280 CIVIL TERM
IN RE: PRELIMINARY OBJECTION OF DEFENDANT TO PLAINTIFF'S
AMENDED COMPLAINT
BEFORE BAYLEY. J. AND GUIDO. J.
OPINION AND ORDER OF COURT
Bayley, J., September 22, 2000:.-
On May 15, 2000, plaintiff, Brenda A. Hair, filed an amended complaint against
defendant, Peter M. Zerphy tld/b/a Shippensburg Truck and Auto Sales. Plaintiff seeks
damages against defendant on allegations of fraud, breach of express warranties,
breach of implied warranty of merchantability, and violation of the Unfair Trade
Practices and Consumer Protection Act. The claims arise out of defendant's sale of a
1986 Dodge Caravan on September 14, 1999, to plaintiff. Plaintiff avers that this sale
and all the negotiations leading up to it took place at defendant's place of business in
Franklin County, where he trades and does business as Shippensburg Truck and Auto
Sales.
In her amended complaint, plaintiff avers that defendant's residence is in Lower
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00-1280 CIVIL TERM
Mifflin Township, Cumberland County. The sheriffs return shows that the original
process was served on defendant at his Cumberland County residence on March 15,
2000. Pursuant to Pa. Rule of Civil Procedure 1 028(a)(1), defendant preliminary
objects to venue maintaining that venue is in Franklin County under Rule 2179. Rule
2179 applies to actions brought against a corporation or similar entity.
Pa. Rule of Civil Procedure 1006(a) provides:
Except as otherwise provided by Subdivisions (b) and (c) of this
rule, an action against an individual may be brought in and only in a
county in which the individual may be served or in which the cause of
action arose or where a transaction or occurrence took place out of which
the cause of action arose or in any other county authorized by law.
Subdivisions (b) and (c) of Rule 1006 are not applicable as (b) refers to the rules
regarding venue in actions against political subdivisions, partnerships, unincorporated
associations, corporations and similar entities, and (c) involves actions against two or
more defendants. Rule 2176 states that a corporation or similar entity:
[i]ncludes any public, quasi-public or private corporation, insurance
association or exchange, registered partnership, partnership association
limited, joint stock company or association, 'Massachusetts trust', or any
other association which is regarded as an entity distinct from the members
composing the association, but does not include the Commonwealth of
Pennsylvania, a county, city, borough, town, township, school district or
institution district, or a partnership as defined in Rule 2126, or an
unincorporated association as defined in Rule 2151;
Plaintiffs amended complaint is against Peter M. Zerphy, an individual. His
operating under the fictitious name of Shippensburg Truck and Auto Sales does not
make him a corporation or similar entity. Venue lies in Cumberland County under Rule
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00-1280 CIVIL TERM
1006(a) because defendant was served in this county.'
ORDER OF COURT
AND NOW, this '2-'1- day of September, 2000, the preliminary objection of
defendant to plaintiffs complaint, IS DISMISSED.
Edgar B. ayley, J.
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Philip C. Briganti, Esquire
For Plaintiff
Sally Winder, Esquire
For Defendant
:saa
, Plaintiff has not filed a petition under Rule 1 006(d) which provides, "For the
convenience of parties and witnesses, the court upon petition of any party may transfer
an action to the appropriate court of any other county where the action could originally
have been brought. See Setzler v. Clark Equipment Co. and Forklifts, Inc., 36
Cumberland LJ. 409 (1986).
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BRENDA A. HAIR,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 2000- 1280 CIVIL TERM
PETER M. ZERPHY, t/d/b/a
SHIPPENSBURG TRUCK AND
AUTO SALES,
Defendant
CIVIL ACTION - LAW
PRAECIPE TO DISCONTINUE CASE
Kindly mark the above-captioned case as settled and discontinued, with prejudice.
Date: /Ii/le/
8JIfr
Counsel for Plaintiff
MIDPENN LEGAL SERVICES
8 Irvine Row
Carlisle, P A 17013
(717) 243-9400
Date: lilt /4/
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Counsel for Defendant
701 East King Street
Shippensburg, P A 17257
(717) 532-9476
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and subnitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next Argtnent Court.
CAPTION OF CASE
(entire caption ITRJSt be stated in full)
BRENDA A. HAIR,
(Plaintiff)
VS.
PETER M. ZERPHY, t/d/b/a
SHIPPENSBURG TRUCK AND AUTO SALES,
(Defendant)
NO. 2000-1280 CIVIL TERM
No. Civil 19
rei
1. State matter to be argued (i.e.. plaintiff's rn::>tion for new trial, defendant's
danurrer to canplaint, etc.):
Defendant's Preliminary Objections tp Amended Complaint
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2. Identify counsel who will argue case:
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(a) for plaintiff:
Address:
Philip C. Briganti, Esq.
Legal Services, Inc.
8 Irvine Row
Carlisle, PA 17013
Sally J. Winder, Esq.
701 E. King Street
Shippensburg, PA 17257
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3. I will notify all parties in writing within two days that this case has
been listed for argunent.
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4. Argunent Court Date:
August 30, 2000
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Dated: July 18, 2000
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