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HomeMy WebLinkAbout07-0662 UUMMUNWtAL 1 h Ul`' 1'tNNSYLVANIA COURT OF COMMON PLEAS Judicial District, County Of FROM DISTRICT JUSTICE JUDGMENT I I COMMON PLEAS No. 072 - lri to a ina NOTICE OF APPEAL r;IfA : re,& Q. zz0o-77 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 referenced below. NAME OF APPELLANT I MAG. oqDIST. NO. - NAME OF D.J. 7"?t= sT?Rt,tNG a .-3-O? T'MbMAS A-PLolC6y _)M l''10HAMMAV RIJS r r?ST c - NOTICE OF APPEAL ADDRESS OF APPELLANT CITY S IATt fill Gvut 511 P4r--ASAIV BALL RV C'ARLx5Lr- RA 1`7d13 DATE OF JUDGMEN IN THE CASE OF (Plaintilt) d )' D M>/VVOHAMhAD T'2UgTrs? .?1FRllad vaj60epCF1?.1-if sC °rMr4RKUL1Z1?NrMGR ?.,?u?? ._ TPr.'t?9' car-uen noc nc eooai ? euT na erTrutucv nw snFnn• V- oOoo 535'- o6 q/08106 This block will be -signed ONLY when this notation is required under Pa. R.C.P.D.J. No. 1008B. This Notice of Appeal, when received by the District Justice, will operate as a SUPERSEDEAS to the judgment for possession in this case. signature of Pedhomtary or Deputy 1___L ?Z' X'211__? If appellant was Claimant (see I-a. K. before a District Justice, A COMPLAINT MUST BE FILED within twenty (20) days after filing the NOTICE of APPEAL. PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see Pa.R.C.P.D.J. No. 1001(7) in action before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary Enter rule upon Name of appellee(s) appellee(s), to file a complaint in this appeal (Common Pleas No. ) within twenty (20) days after service of rule or suffer entry of judgment of non pros. Signature of appellant or attorney or agent RULE: To appellee(s) Name of appellee(s) (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS MAYBE ENTERED AGAINST YOU. (3) The date of service of this rule if service was by mail is the date of the mailing. Date: 20 Signature of Prothonotary or Deputy YOU MUST INCLUDE A COPY OF THE NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH THIS NOTICE OF APPEAL. AOPC 312-02 WHITE -COURT FILE TO BE FILED WITH PROTHONOTARY GREEN - COURT FILE YELLOW - APPELLANT'S COPY PINK -COPY TO BE SERVED ON APPELLEE GOLD -COPY TO BE SERVED ON DISTRICT JUSTICE PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing of the notice of appeal. Check applicable boxes.) COMMONWEALTH OF PENNSYLVANIA COUNTY OF ; ss AFFIDAVIT: I hereby (swear) (affirm) that I served ? a copy of the Notice of Appeal, Common Pleas , upon the District Justice designated therein on (date of service) 20 , ? by personal service ? by (certified) (registered) mail, sender's receipt attached hereto, and upon the appellee, (name) , on ,20 ? by personal service ? by (certified) (registered) mail, sender's receipt attached hereto. (SWORN) (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS DAY OF , 20 Signature ofafFant Signature of official before whom affidavit was made Title of official My commission expires on 20 r C) C 17-3 =1, . 0 _ rT1 j "T I COMMONWEALTH OF PENNSYLVANIA r .ni INTV nF• CUMBERLAND Mag. Dist. No.: 09-3-04 MDJ Name: Hon. THOMAS A. PLACEY Address: 104 S SPORTING HILL RD MECHANICSBURG, PA Telephone: (717 ) 761-8230 17050 NOTICE OF JUDGMENT/TRANSCRIPT CIVIL CASE PLAINTIFF: NAME and ADDRESS IN MOHAMMAD TRSTEE STERLING TRUST Cd 511 PLEASANT HALL ROAD CARLISLE, PA 17013 L VS. I DEFENDANT: NAME and ADDRESS rTHE HOME DEPOT STORE 4120, ET AL. 6000 CARLISLE PIKE MARK ULRICH, MGR. LMECHANICSBURG, PA 17050 J M MOHAMMAD TRSTEE STERLING TRUST CO 511 PLEASANT HALL ROAD Docket No.: CV-0000535-06 CARLISLE, PA 17013 Date Filed: 9/08/06 THIS IS TO NOTIFY YOU THAT: Judgment: FOR DEFENDANT T Judgment was entered for: (Name) ® Judgment was entered against: (Name) in the amount of $ .0 . I F] Defendants are jointly and severally liable. ? Damages will be assessed on Date & Time This case dismissed without prejudice. ? Amount of Judgment Subject to Attachment/42 Pa.C.S. § 8127 Portion of Judgment for physical damages arising out of residential lease $ Amount of Judgment $ .00 Judgment Costs $ 6 00 Interest on Judgment $ . Attorney Fees $ .00 Total $ .00 Post Judgment Credits $ Post Judgment Costs $ Certified Judgment Total $ ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS'OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE JUDGEMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE JF THE JUDGMENT DEBTOR PAYS IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. 1,1 6 Date I certify that this is a true an correct c A d of the Date [A - My commission expires first Monday of January, 2010 AOPC 315-06 DATE PRINTED: 1/17/07 5:19:00 PM (Date of Judgment) 1/17/07 THE HOME DEPOT STORE 4120 M MOHA13LW TRSTEE STERLING TRU - Magisterial District Judge ings containing the judgment. , Magisterial District Judge SEAL Additional Defendants: 1) The Home Depot, Inc. CT Corporation System 1635 Market Street Philadelphia, PA 19103 2) Home Depot U.S.A., Inc. 1515 Market Street, Suite 1210 Philadelphia, PA 19102 a (Domestic Provided) For delivery information visit r our website at www.usps.corno Wwr6no PA? 19404 Postage $ $?i.39 tjtil3 • ` Certified Fee $2.40 ?)9 ??'r7? j ¢;,` 7-3 M Return Receipt Fee or s? Po ' ? Q (Endorsement Required) $1 • ?: HafQ? g c ?v p Restricted Delivery Fee _ r-1 (Endorsement Required) $0.0 0 c0 r C3 Total Postage & Fees $ ?. 64 Sent To C3 etc -------------- [?- Street Apt No.; or PO Box No. Ln tf17:1111¦110110¦ (Domestic Mail OnI For delivery informati = MECHANIJEURG 1?tj r , 0 I ca r1- Postage $ $CI.39 0013 0 C3 Certified Fee $?,4(I Ijq C3 0 Return Receipt Fee (Endorsement Required) ; $1. 85, °Pos ark C3 r.q Restricted Delivery Fee (Endorsement Required) 1 710 t 6 43 0 Total Postage & Fees $ $4.64 ?f?7/I1 y D C3 Sent To LAcg r? 3`treet, Apt. No.j °° j------------- ------------ ----------------------------- or PO Box No. PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing of the notice of appeal. Check applicable boxes.) COMMONWEALTH OF PENNSYLVANIA COUNTY OF ; ss AFFIDAVIT: I hereby (swear) (affirm) that I served ? a copy of the Notice of Appeal, Common Pleas 67-&&; , upon the District Justice designated therein on (date of service) , 20 , ? by personal service ? by (certified) (registered) mail, sender's receipt attached hereto, and upon the appellee, (name) , on ,20 ? by personal service ? by (certified) (registered) mail, sender's receipt attached hereto. (SWORN) AFFIRMED)AND S SCRIBED BEFORE-ME THIS !` r D\AY O Signature of official before whom affidavit was made /fin - -- f ?A J, k-- ! 1 Title of official My commission expires on -,20 Signature of affiant UUMMUNWEAL IM OF 1'ENNSYLV COURT OF COMMON PLEAS Judicial District, County Of I I COMMON PLEAS No. 07 ` 6 6 ':;? NOTICE OF APPEAL t e . ? , 0607 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 referenced below. YC? E ° ?v r"! M ?'f Q k? s ( s Tf 9, RDIAAG. DIST. cQ 01 - 011' NAMTA rtAS A•PlA C?Y ADDR SS OF PE ANT H A I, L R D C A R, 4 f ScI?'? IN j I CODE P ' 0 I 1 u DATE O ; J % TGt?Nlt IN THE CASE OF (P(ainC ?R V5 R , tN? I4daa ?,p t ?1.7 ¢-t r V7 0 ??t MC I? t 01 M•MOHAMh 1 T? O 1? DOCKET No`.' O SIGNATURE OF APPELLANT OR ATTORNEY OR AGENT k/..1 Y - This block will be signed ONLY when this notation is required under Pa. R.C.P.D.J. No. 1008B. This Notice of Appeal, when received by the District Justice, will operate as a SUPERSEDEAS to the judgment for possession in this case. If appellant was Claimant (see Pa. R.C.P.D.J. No. 1001(6) in action before a District Justice, A COMPLAINT MUST BE FILED within twenty (20) days after riling the NOTICE of APPEAL. Signature of Prothonotary or Deputy PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see Pa.R.C.P.D.J. No. 1001(7) in action b`o7`ore WMct stice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee. €°r PRAECIPE: To Prothonotary t Enter rule upon appellee(s), to file $:complai94n thisAlal Name of appeffee(s) tiD (Common Pleas No. ) within twenty (20) days after service of rule or suffer entry odgmht of I pros. Signature of appellant or attorney or agent RULE: To appellee(s) Name of appellee(s) (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU. (3) The date of service of this rule if service was by mail is the date of the mailing. NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT Date: ,20 Signature of Prothonotary or Deputy YOU MUST INCLUDE A COPY OF THE NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH THIS NOTICE OF APPEAL. AOPC 312-02 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MAHMOOD MOHAMMAD, in his capacity as trustee of the STERLING TRUST COMPANY, Inc. custodian, FBO Mahmood Mohammad, Account #064846 Appellant, V. No. 07 I. L 07-662-Civil THE HOME DEPOT STORE 4120; THE HOME DEPOT, INC.; and HOME DEPOT U.S.A., INC. Appellees. PROOF OF SERVICE AND NOW, this a day of January, 2007, at a?/p.m., I, Mahmood Mohammad, in my capacity as trustee of the Sterling Trust Company, custodian FBO Mahmood Mohammad Account # 064846, hereby verify that I this day served a true and correct copy of the NOTICE OF APPEAL FROM DISTRICT JUSTICE APPEAL by mailing the same (1) to Counsel for Appellees and (2) to the Magisterial District Judge in whose office the judgment was rendered, Thomas A. Placey. Both of these NOTICES OF APPEAL FROM DISTRICT JUSTICE APPEAL were served by mailing them via Certified United States Mail, Return Receipt Requested. The above statements are made subject to the penalties of 18 Pa.C.S.A. § 4904 relating to unsworn falsification to authorities. _ Mahmood Mohammad February 6, 2007 VIA HAND DELIVERY Curtis R. Long, Prothonotary Cumberland County Courthouse I Courthouse Square Carlisle, PA 17013 Re: Mahmood Mohammad, in his Capacity as Trustee of the Sterling Trust Company, Inc custodian. FBO Mahmood Mohammad, Account #064846 v The Home Depot Store 4120: The Home Depot, Inc.: and Home Depot U.S.A., Inc.; Docket No. 07-662-CiviL Dear Mr. Long: Pursuant to Rule 1005 concerning Appellate Proceedings with Respect to Judgments and other Decisions of Magisterial District Judges in Civil Matters, contained in the Pennsylvania Rules of Conduct, Office Standards and Civil Procedure for Magisterial District Judges, R.P.C.D.J. 1005, enclosed for filing is an original and four copies of the Proof of Service regarding the serving of the Notice of Appeal from District Justice Judgment upon counsel for Appellees and the magisterial district judge in the above-referenced matter. Kindly date-stamp the extra copy and return it to me. Your consideration of this matter is appreciated Very truly yours, Mahmood Mohammad, trustee MM:cmm cc: Eric B. Smith, Esq., counsel for Appellees The Honorable Thomas A. Placey eiI CD =? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MAHMOOD MOHAMMAD, in his capacity as trustee of the STERLING TRUST COMPANY, INC. Custodian, FBO Mahmood Mohammad, Account #064846 Appellant, V. No. 07-662-Civil THE HOME DEPOT STORE 4120; THE HOME DEPOT, INC.; and HOME DEPOT U.S.A., INC. Appellees. NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney, and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 1-800-990-9108 717-249-3166 AVISO USTED HA SIDO DEMANDO EN LA CORTE. Si usted desea defenderse de las quejas expuestas en las paginas siguentes, debe tomar acci6n dentro de veinte (20) dias a partir de la fecha en que recebi6 demanda y el aviso. Usted debe presentar comparecencia esrita en persona o por abogado y presentar en la Corte por escrito sus defenses o sus objeciones a las demandas en su contra. Se le avisa que si no se defiende, el caso puede proceder sin usted y las Corte puede decidir en su contra sin mas aviso o notificaci6n por cualquier dinero reclamado en la demanda o pro cualquier otra queja o compensaci6n reclamados por el Demandante. USTED PUEDE PERDER DINERO, O PROPIEDADES U OTROS DERECHOS IMPORTANTES PARA USTED. LLEVE ESTA DEMANDA A UN ABOGADO DWEDIATAMENTE. SI USTED NO TIENE O NO CONOCE UN ABOGADO, VAYA OR LLAME A LA OFICINA EN LAS DIRECCION ESCRITA ABAJO PARA AVERIGUAR DONDE PUEDE OBTENER ASISTENCIA LEGAL. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 1-800-990-9108 717-249-3166 2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MAHMOOD MOHAMMAD, in his capacity as trustee of the STERLING TRUST COMPANY, INC. Custodian, FBO Mahmood Mohammad, Account #064846 V. Appellant, No. 07-662-Civil THE HOME DEPOT STORE 4120; THE HOME DEPOT, INC.; and HOME DEPOT U.S.A., INC. Appellees. COMPLAINT Introduction 1. This is a civil action at law resulting from an appeal by Appellant, Mahmood Mohammad, in his capacity as trustee of the Sterling Trust Company, Inc. Custodian, FBO Mahmood Mohammad, Account #064846. The Appellant is appealing a judgment for Appellees, The Home Depot Store 4120; The Home Depot, Inc.; and Home Depot U.S.A., Inc. that was awarded on or about January 17, 2007 by Thomas A. Placey, a Magisterial District Judge seated in Mechanicsburg, Pennsylvania. The Parties 2. Appellant/Plaintiff, Mahmood Mohammad is the trustee of a Traditional Individual Retirement Custodial Account with the Sterling Trust Company, Inc. The number of the Traditional Individual Retirement Custodial Account is Account #064846. 3. While this lawsuit is brought by Mahmood Mahmood in his capacity as the trustee of Account #064846 at Sterling Trust Company, Inc. and not on behalf of Sterling 3 Trust Company, upon information and belief, Sterling Trust Company, Inc. is a non-bank trust company chartered under the laws of the state of Texas, regulated by the Texas Department of Banking, and is a wholly- owned subsidiary of United Western Bancorp, Inc., a Denver, Colorado-based financial services entity. 4. Plaintiff/Appellant, Mahmood Mohammad, resides in North Middleton Township, Pennsylvania. In his capacity of Trustee of Account #064846 at the Sterling Trust Company, Inc., Mahmood Mohammad develops and builds buildings in and around Carlisle, Pennsylvania. 6. All proceeds from the developments and buildings described in paragraph 5, above, are solely credited to Account #064846 at the Sterling Trust Company, Inc., and Mahmood Mohammad can not be compensated for time, efforts, use of vehicle, gas or any purchase of material that are used in conjunction with any project. He pays out of pocket for the aforementioned expenses. 7. Appellants, The Home Depot, Inc.; Home Depot U.S.A., Inc. and the Home Depot Store 4120 own and operate a Home Depot store which is located at 6000 Carlisle Pike, Mechanicsburg, Pennsylvania 17050. Upon information and belief, Mark Ulrich is the manager of the Home Depot Store 4120. Jurisdiction and Procedure 9. This Honorable Court has jurisdiction under this matter in accordance with Rule 1002(A) of the Pennsylvania Rules of Conduct, Office Standards and Civil Procedure for District Justices, R.P.C.D.J. 1002(A). 4 10. This Honorable Court also has jurisdiction under 42 Pa.C.S.A. §932 relating to appeals from the Minor Judiciary. 11. In accordance with Rule 1007(A) and (B) of the Pennsylvania Rules of Conduct, Office Standards and Civil Procedure for District Justices, R.P.C.D.J. 1007(A) and (B), the procedure on appeal before this Honorable Court is to be conducted de novo in accordance with the Rules of Civil Procedure that would be applicable if the action was initially commenced in this Honorable Court, and this action is not limited with respect to the amount in controversy, joinder of causes of action or parties, counterclaims, added or changed averments or otherwise because of the particulars of the action before the magisterial district judge. Facts 12. Upon information and belief, the Home Depot Store 4120, in 2004, did not have a policy of establishing commercial accounts. 13. Home Depot Store 4120, in 2004, did not allow for any material to leave the premises without prepayment. Instead, personnel at Home Depot Store 4120 suggested to Mahmood Mohammad that Appellant make purchases based on estimates only and pay in advance. This allowed for the construction materials Mahmood Mohammad needed for his buildings and developments to be delivered to the job site and debited from the original purchase. 14. Appellant, in 2004, purchased materials from Appellees totaling one hundred ninety-eight thousand two hundred eighty dollars and forty-six cents ($198,280.46), based Mahmood Mohammad's estimates of what he would need to finish the buildings and developments. 5 15. Throughout most of 2004 (and during the vast majority of the construction), materials were delivered from Appellees to Mahmood Mohammad free of charge, as he needed and required the materials. 16. Near the end of 2004, Appellees, The Home Depot, Inc. and Home Depot U.S.A., Inc., opened a Home Depot in Carlisle, Pennsylvania, and Appellant began purchasing most of the additional materials needed from the new Home Depot store in Carlisle, Pennsylvania. 17. However, Appellant continued to deal with Home Depot Store 4120 with respect to the one hundred ninety-eight thousand two hundred eighty dollars and forty-six cents ($198,280.46) in materials Appellant previously purchased from Home Depot Store 4120. 18. Near the end of 2004, Mahmood Mohammad met Ray Poe, who identified himself as Home Depot, District Pro Account Sales Manager. Ray Poe suggested that Appellant create a Debit Account with Appellees. 19. Ray Poe facilitated the setting up of a Debit Account for Appellant, Debit Account # 6035 3225 3252 4745, with Appellees near the end of 2004. 20. Since the end of 2004, Appellant has made numerous purchases, as well as numerous returns and credits to Debit Account # 6035 3225 3252 4745 with Appellees. 21. At the time Appellant made material purchases from Appellees using Debit Account # 6035 3225 3252 4745, Appellant was not provided with any written terms of the Debit Account Agreement between Appellees and Appellant. 22. Mike Loe was the employee of Appellees that Mahmood Mohammad always dealt with at Home Depot Store 4120. Mike Loe identified himself as the authorized person in charge of all commercial accounts, including Debit. Account # 6035 6 3225 3252 4745, and indicated to Mahmood Mohammad that he had authority and permission of Appellees to take any and all relevant actions of Home Depot Store 4120 with respect to Appellant's interactions with Home Depot Store 4120 as well as the Debit Account Agreement between Appellant and Appellees until Mike Loe left his employ with Appellees. 23. While Mike Loe was employed by Appellees, he verbally indicated to Mahmood Mohammad on several occasions that the terms of the Debit Account Agreement were: all unused, pre-purchased items, delivered or undelivered, would be credited back to Appellant's Debit Account without any additional charges for the items. 24. In reliance upon the representations of Mike Loe, Appellant purchased the aforementioned one hundred ninety-eight thousand two hundred eighty dollars and forty- six cents ($198,280.46) worth of materials from Home Depot Store 4120 from April 8, 2004 through October 29, 2004. 25. Upon information and belief, Mike Loe left his employment with Appellees sometime around the end of 2004. 26. Upon information and belief, Appellees hired Rex Blevins to take Mike Loe's former position with Appellees. 27. Until approximately May 2005, in accordance with what Mike Loe told Mahmood Mohammad concerning the terms of the Debit Account Agreement between the Appellees and Appellant, approximately fifteen thousand dollars ($15,000.00) worth of unused material was credited to Appellant's Debit Account # 6035 3225 3252 4745, and Appellant did not incur any pick-up charges for the delivered items. 28. Beginning in approximately November 2005, Mahmood Mohammad dealt with a different person at Home Depot Store 4120, Robert Bowes, for the first time. Robert 7 Bowes identified himself as the new person in charge of Appellant's Debit Account, replacing Rex Blevins. 29. Robert Bowes indicated that Appellees would no longer accept returns on the following items: a. 2 GE gas ranges, SKU #500-209, at $404.19, for a total of $808.38. b. 1 GE dishwasher, SKU #108-937, at $193.59. C. 6 hardware metro trim sets by Andersen Windows at $44.60 each, for a total of $267.60. d. 1 track light, SKU# 121-103, at $24.27. 30. Items 29(a) through 29(d) are unused, and, to the extent applicable, are still in their original packing, and were purchased in advance of their anticipated use in reliance upon the representations of Appellees' agent, Mike Loe, as well as the past practice of Appellees with Appellant, that returns would be accepted on all unused items and would be credited back to Appellant's Debit Account without any additional charges. 31. Further, on the items which Appellees did pick up and accept a return, Appellant incurred a total of $127.00 in delivery charges, beginning approximately late 2004, after Mike Loe left Home Depot Store 4120. 32. Additionally, of the items for which Appellees did accept a return, Appellant's Debit Account # 6035 3225 3252 4745 was no longer credited, as had been Appellees' prior practice. 33. Instead of crediting Appellant's Debit Account # 6035 3225 3252 4745, Appellees, beginning on or about June 6, 2006, started issuing Appellant Home Depot Debit Cards totaling four thousand five hundred ninety-seven dollars and sixty-one cents ($4,597.61), which were only good at Appellees' stores. 8 34. Appellant pre-purchased 6 garage doors from Appellees on May 5, 2004, SKU # 804-408 for a total of one thousand one hundred five dollars and fifty-six cents ($1,105.56). 35. Appellant pre-purchased an additional 6 garage doors from Appellees on May 11, 2004, SKU # 804-408 for a total of one thousand one hundred sixteen dollars and seventy-two cents ($1,116.72). 36. But, Appellees never gave Appellant any of the 12 garage doors and Appellees have not repaid or credited Appellant the two thousand two hundred twenty-two dollars and twenty-eight cents ($2,222.28) Appellant incurred in purchasing the 12 garage doors. 37. In Mahmood Mohammad's capacity as Trustee of Sterling Trust Company, Inc. Account #064846, FBO Mahmood Mohammad, Mahmood Mohammad did all contracting work for which he bought the materials from Appellees for the benefit of and to earn money for the trust account. This means that all proceeds from the building and contracting for which Appellant purchased all items from Appellees went toward the benefit of the trust fund. 38. This building and contracting work was a limited undertaking and not an ongoing project. Mahmood Mohammad finished the contracting/building project he was working on for the benefit of the trust fund, and is not planning on undertaking any additional contracting or building work, either for the trust fund, personally, or for any other entity. 39. Thus, store credit is not only in breach of the terms of the Agreement between Appellant and Appellees, it is not usable by the trust account as it is not something that can be deposited into the trust account. 9 40. On September 8, 2006, Appellant commenced an action in Magisterial District Number 09-3-04. 41. A hearing on this matter was held on January 9, 2007, in Magisterial District Number 09-3-04. 42. Magisterial District Judge Thomas A. Placey ruled in favor of Appellees on or about January 17, 2007. 43. On February 2, 2007, Appellant entered into this action via a Notice of Appeal From District Justice Judgment. 44. On February 6, 2007, Appellant served the Notice of Appeal From District Justice Judgment on Appellees and on Magisterial District Judge Thomas A. Placey, and filed the Proof of Service with this Honorable Court. COUNTI Breach of Contract 45. Paragraphs 1-44 are incorporated by reference as if fully set forth herein. 46. In order to show breach of contract, a party must demonstrate (a) the existence of an agreement (b) breach of a duty imposed by the agreement, and (c) damages. Penny Supply, Inc. v. American Ash Recycling Corp., 895 A.2d 595, 600 (Pa. Super. 2006). 47. An Agreement existed between Appellant and Appellees. 48. Based on the representations of Appellees' agent to the Agreement and Agreement representative, the terms of the Agreement imposed a duty upon Appellant to pre-purchase the items he needed. 49. Based on the representations of Appellees' agent to the Agreement and Agreement representative, the terms of the Agreement imposed a duty upon Appellees to 10 credit all unused pre-purchased items for any reason, delivered or undelivered, back to Appellant's Debit Account # 6035 3225 3252 4745 without any additional pick-up charges for the delivered items. 50. Appellees' breached their duty to Appellant beginning on or about June 6, 2006, by: (a) failing to properly credit Appellant's Debit Account according to the Agreement terms, (b) improperly charging for delivery of some items (c) refusing to accept returns on many items, and (d) failing to give Appellant possession of several purchased items and/or by failing to pay Appellant for the value of these items when Appellees charged Appellant and Appellant paid for goods which Appellees never delivered. 51. Appellees' breach of contract has damaged Appellant, in that: (a) Appellant's Debit Account has not been properly credited, (b) Appellant has been improperly charged for services, and (c) Appellant has been charged for some items which Appellant has never received. In addition, Appellant has amassed substantial costs and fees trying to resolve this matter with Appellees. WHEREFORE, Appellant prays this Honorable Court find for the Appellant and against the Appellees and award damages to the Appellant of at least eight thousand two hundred forty dollars and seventy-three cents ($8,240.73), in addition to court costs, attorney fees, interest and other damages that this Honorable Court deems appropriate. COUNT II Doctrine of Necessary Implication 52. Paragraphs 1-51 are incorporated by reference as if fully set forth herein. 53. The Doctrine of Necessary Implication states that: 11 In the absence of an express provision, the law will imply an agreement by the parties to a contract to do and perform those things that according to reason and justice they should do in order to carry out the purpose for which the contract was made and to refrain from doing anything that would destroy or injure the other party's right to receive the fruits of the contract. Slater v. Pearle Vision Center, 376 Pa.Super. 580, 586, 546 A.2d 676, 679 (1988) (quoting Frickert v. Deiter Bros., Fuel Co. Inc., 464 Pa. 596, 347 A.2d 701 (1975) (Pomeroy, J., concurring)). See also Agrecycle, Inc. v. City of Pittsburgh, 783 A.2d 863, 868 (Pa. Commw. Ct. 2001), cert. denied, 568 Pa. 687, 796 A.2d 319 (2002). 54. The Doctrine of Necessary Implication "may be applied only in limited circumstances to prevent injustice where it is abundantly clear that the parties intended to be bound by the terms sought to be implied." Agrecycle, Inc. v. City of Pittsburgh, 783 A.2d 863, 868 (Pa. Commw. Ct. 2001), cert. denied, 568 Pa. 687, 796 A.2d 319 (2002). 55. In this case, Appellant pre-purchased the supplies Appellant needed exclusively from Appellees. 56. In exchange for the benefit that Appellees receive by having Appellant pre- purchase all the building supplies Appellant needed exclusively from Appellees, Appellant conferred a benefit upon Appellees. 57. Appellees, in return, were obligated to the performance of certain duties, including: (a) allowing the return of all items and properly crediting Appellant's Account for the return of these items, (b) not charging for pick-up of unused items, and (c) repaying Appellant for items Appellant purchased but that Appellees never delivered to Appellant. 12 58. According to the Doctrine of Necessary Implication, Appellees are obligated to allow Appellant to receive the fruits of the contract between Appellant and Appellees. 59. Applying the Doctrine of Necessary Implication is necessary in this limited circumstance to prevent injustice. 60. It is abundantly clear that the parties intended to be bound by the terms of the agreement between the parties because, in exchange for Appellant pre-purchasing all of Appellant's building supplies exclusively from Appellees, Appellees (a) allowed the return of all items and properly crediting Appellant's Account for the return of these items, (b) did not charge for pick-up of unused items, and (c) repaid Appellant for items Appellant purchased but that Appellees never delivered until approximately November 2005. 61. Beginning approximately November 2005, Appellees began breaching the Agreement by (a) not allowing the return of all items and not properly crediting Appellant's Account for the return of these items, (b) charging for delivery and/or pick-up of items, and (c) failing to repay Appellant for items Appellant purchased but that Appellees never delivered. WHEREFORE, Appellant prays that this Honorable Court declare that Appellees violated the Doctrine of Necessary Implication, and that Appellees, according to reason and justice, are responsible for compensating Appellant for Appellant's damages of at least eight thousand two hundred forty dollars and seventy-three cents ($8,240.73), in addition to court costs, attorney fees, interest and other damages that this Honorable Court deems appropriate. COUNT III Unjust Enrichment 62. Paragraphs 1-61 are incorporated by reference as if fully set forth herein. 13 63. Unjust enrichment occurs when benefits are conferred on an individual or entity by another individual or entity and the individual or entity receiving the benefits enjoys the benefits without payment of value. Burgettstown-Smith Township Joint Sewage Authority v. Langeloth Townsite Company. 403 Pa. Super. 84, 588 A.2d 43 (1990). 64. Here, Appellant pre-purchased all of Appellant's building and construction supplies exclusively from Appellees in reliance on the fact that Appellant would be able to (a) return all unused items and Appellant's Debit Account with Appellees would be properly credited for the return of these items, (b) arrange for Appellees to deliver and/or pick-up all items free of charge, and (c) get repaid for items Appellant purchased but that Appellees never delivered to Appellant. 65. Appellant has paid at least two thousand two hundred twenty-two dollars and twenty-eight cents ($2,222.28) for items Appellant did not receive. 66. Appellant paid Appellees at least two hundred eight thousand two hundred eighty-eight dollars and twenty-three cents ($208,288.23) from April 8, 2004 until January 14, 2005 in exclusively purchasing building supplies from Appellees, in reliance on the fact that Appellant was to not incur pick-up fees and was to have Appellant's Debit Account credited for all unused returns. 67. The sole reason Appellant agreed to exclusively purchase all of Appellant's building supplies from Appellees was because, under the terms of the Agreement, Appellant was to be able to (a) return all unused items and Appellant's Account with Appellees would be properly credited for the return of these items, (b) arrange for Appellees to deliver all Appellant's unused items free of charge, and (c) get repaid for items Appellant purchased but that Appellees never delivered to Appellant. 14 68. Appellees have been unjustly enriched by receiving money for items which were not delivered, by charging for items for which they were not supposed to charge, and by failing to properly credit Appellant's Account for the unused returns without payment of value. WHEREFORE, Appellant prays that this Honorable Court declare that Appellees were unjustly enriched when they received the exclusive purchases of Appellant's supplies without providing Appellant the value of his purchases, and that Appellees, according to reason and justice, are responsible for compensating Appellant for Appellant damages of at least eight thousand two hundred forty dollars and seventy-three cents ($8,240.73), in addition to court costs, attorney fees, interest and other damages that this Honorable Court deems appropriate. Respectfully Submitted, C1ul4? M Christina M. Mellott, Esquire PA Atty. I.D. No. 81369 Page, Wolfberg & Wirth, LLC 5010 East Trindle Road, Suite 202 Mechanicsburg, PA 17050 Dated: 20?2?0 (717) 691-0100 (717) 691-1226 facsimile COUNSEL FOR APPELLANT, MAHMOOD MOHAMMAD, in his capacity as trustee of the STERLING TRUST COMPANY, INC. Custodian, FBO Mahmood Mohammad, Account #064846 15 VERIFICATION Mahmood Mohammad hereby verifies that the facts set forth in the foregoing Complaint are true and correct to the best of his knowledge or information and belief and that this verification is made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. 7 DATE NAME CERTIFICATE OF SERVICE I, Mahmood Mohammad, hereby certify that I have served a true and correct copy of the foregoing Complaint, upon the counsel for Appellees listed below via first class mail: Eric B. Smith, Esq. High, Swartz, Roberts & Seidel, LLP 40 East Airy Street Norristown, PA 19404 Counsel for Appellees, The Home Depot Store 4120; The Home Depot, Inc.; and Home Depot U.S.A., Inc. Dated: 2/2O/2wl M Christina M. Mellott, Esquire PA Atty. I.D. No. 81369 Page, Wolfberg & Wirth, LLC 5010 East Trindle Road, Suite 202 Mechanicsburg, PA 17050 (717) 691-0100 (717) 691-1226 facsimile COUNSEL FOR APPELLANT, MAHMOOD MOHAMMAD, in his capacity as trustee of the STERLING TRUST COMPANY, INC. Custodian, FBO Mahmood Mohammad, Account #064846 70 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MAHMOOD MOHAMMAD, in his capacity as trustee of the STERLING TRUST COMPANY, INC. Custodian, FBO Mahmood Mohammad, Account #064846 Appellant, V. THE HOME DEPOT STORE 4120; THE HOME DEPOT, INC.; and HOME DEPOT U.S.A., INC. Appellees. No. 07-662-Civil NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney, and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 1-800-990-9108 717-249-3166 AVISO USTED HA SIDO DEMANDO EN LA CORTE. Si usted desea defenderse de las quejas expuestas en las paginas siguentes, debe tomar acci6n dentro de veinte (20) dias a partir de la fecha en que recebi6 demanda y el aviso. Usted debe presentar comparecencia esrita en persona o por abogado y presentar en la Corte por escrito sus defenses o sus objeciones a las demandas en su contra. Se le avisa que si no se defiende, el caso puede proceder sin usted y las Corte puede decidir en su contra sin mas aviso o notificaci6n por cualquier dinero reclamado en la demanda o pro cualquier otra queja o compensaci6n reclamados por el Demandante. USTED PUEDE PERDER DINERO, 0 PROPIEDADES U OTROS DERECHOS IMPORTANTES PARA USTED. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI USTED NO TIENE 0 NO CONOCE UN ABOGADO, VAYA OR LLAME A LA OFICINA EN LAS DIRECCION ESCRITA ABAJO PARA AVERIGUAR DONDE PUEDE OBTENER ASISTENCIA LEGAL. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 1-800-990-9108 717-249-3166 2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MAHMOOD MOHAMMAD, in his capacity as trustee of the STERLING TRUST COMPANY, INC. Custodian, FBO Mahmood Mohammad, Account #064846 Appellant, V. No. 07-662-Civil THE HOME DEPOT STORE 4120; THE HOME DEPOT, INC.; and HOME DEPOT U.S.A., INC. Appellees. COMPLAINT Introduction 1. This is a civil action at law resulting from an appeal by Appellant, Mahmood Mohammad, in his capacity as trustee of the Sterling Trust Company, Inc. Custodian, FBO Mahmood Mohammad, Account #064846. The Appellant is appealing a judgment for Appellees, The Home Depot Store 4120; The Home Depot, Inc.; and Home Depot U.S.A., Inc. that was awarded on or about January 17, 2007 by Thomas A. Placey, a Magisterial District Judge seated in Mechanicsburg, Pennsylvania. The Parties 2. Appellant/Plaintiff, Mahmood Mohammad is the trustee of a Traditional Individual Retirement Custodial Account with the Sterling Trust Company, Inc. The number of the Traditional Individual Retirement Custodial Account is Account #064846. 3. While this lawsuit is brought by Mahmood Mahmood in his capacity as the trustee of Account 4064846 at Sterling Trust Company, Inc. and not on behalf of Sterling 3 Trust Company, upon information and belief, Sterling Trust Company, Inc. is a non-bank trust company chartered under the laws of the state of Texas, regulated by the Texas Department of Banking, and is a wholly- owned subsidiary of United Western Bancorp, Inc., a Denver, Colorado-based financial services entity. 4. Plaintiff/Appellant, Mahmood Mohammad, resides in North Middleton Township, Pennsylvania. 5. In his capacity of Trustee of Account #064846 at the Sterling Trust Company, Inc., Mahmood Mohammad develops and builds buildings in and around Carlisle, Pennsylvania. 6. All proceeds from the developments and buildings described in paragraph 5, above, are solely credited to Account #064846 at the Sterling Trust Company, Inc., and Mahmood Mohammad can not be compensated for time, efforts, use of vehicle, gas or any purchase of material that are used in conjunction with any project. He pays out of pocket for the aforementioned expenses. 7. Appellants, The Home Depot, Inc.; Home Depot U.S.A., Inc. and the Home Depot Store 4120 own and operate a Home Depot store which is located at 6000 Carlisle Pike, Mechanicsburg, Pennsylvania 17050. 8. Upon information and belief, Mark Ulrich is the manager of the Home Depot Store 4120. Jurisdiction and Procedure 9. This Honorable Court has jurisdiction under this matter in accordance with Rule 1002(A) of the Pennsylvania Rules of Conduct, Office Standards and Civil Procedure for District Justices, R.P.C.D.J. 1002(A). 4 10. This Honorable Court also has jurisdiction under 42 Pa.C.S.A. §932 relating to appeals from the Minor Judiciary. 11. In accordance with Rule 1007(A) and (B) of the Pennsylvania Rules of Conduct, Office Standards and Civil Procedure for District Justices, R.P.C.D.J. 1007(A) and (B), the procedure on appeal before this Honorable Court is to be conducted de novo in accordance with the Rules of Civil Procedure that would be applicable if the action was initially commenced in this Honorable Court, and this action is not limited with respect to the amount in controversy, joinder of causes of action or parties, counterclaims, added or changed averments or otherwise because of the particulars of the action before the magisterial district judge. Facts 12. Upon information and belief, the Home Depot Store 4120, in 2004, did not have a policy of establishing commercial accounts. 13. Home Depot Store 4120, in 2004, did not allow for any material to leave the premises without prepayment. Instead, personnel at Home Depot Store 4120 suggested to Mahmood Mohammad that Appellant make purchases based on estimates only and pay in advance. This allowed for the construction materials Mahmood Mohammad needed for his buildings and developments to be delivered to the job site and debited from the original purchase. 14. Appellant, in 2004, purchased materials from Appellees totaling one hundred ninety-eight thousand two hundred eighty dollars and forty-six cents ($198,280.46), based Mahmood Mohammad's estimates of what he would need to finish the buildings and developments. 5 15. Throughout most of 2004 (and during the vast majority of the construction), materials were delivered from Appellees to Mahmood Mohammad free of charge, as he needed and required the materials. 16. Near the end of 2004, Appellees, The Home Depot, Inc. and Home Depot U.S.A., Inc., opened a Home Depot in Carlisle, Pennsylvania, and Appellant began purchasing most of the additional materials needed from the new Home Depot store in Carlisle, Pennsylvania. 17. However, Appellant continued to deal with Home Depot Store 4120 with respect to the one hundred ninety-eight thousand two hundred eighty dollars and forty-six cents ($198,280.46) in materials Appellant previously purchased from Home Depot Store 4120. 18. Near the end of 2004, Mahmood Mohammad met Ray Poe, who identified himself as Home Depot, District Pro Account Sales Manager. Ray Poe suggested that Appellant create a Debit Account with Appellees. 19. Ray Poe facilitated the setting up of a Debit Account for Appellant, Debit Account # 6035 3225 3252 4745, with Appellees near the end of 2004. 20. Since the end of 2004, Appellant has made numerous purchases, as well as numerous returns and credits to Debit Account # 6035 3225 3252 4745 with Appellees. 21. At the time Appellant made material purchases from Appellees using Debit Account # 6035 3225 3252 4745, Appellant was not provided with any written terms of the Debit Account Agreement between Appellees and Appellant. 22. Mike Loe was the employee of Appellees that Mahmood Mohammad always dealt with at Home Depot Store 4120. Mike Loe identified himself as the authorized person in charge of all commercial accounts, including Debit Account # 6035 6 3225 3252 4745, and indicated to Mahmood Mohammad that he had authority and permission of Appellees to take any and all relevant actions of Home Depot Store 4120 with respect to Appellant's interactions with Home Depot Store 4120 as well as the Debit Account Agreement between Appellant and Appellees until Mike Loe left his employ with Appellees. 23. While Mike Loe was employed by Appellees, he verbally indicated to Mahmood Mohammad on several occasions that the terms of the Debit Account Agreement were: all unused, pre-purchased items, delivered or undelivered, would be credited back to Appellant's Debit Account without any additional charges for the items. 24. In reliance upon the representations of Mike Loe, Appellant purchased the aforementioned one hundred ninety-eight thousand two hundred eighty dollars and forty- six cents ($198,280.46) worth of materials from Home Depot Store 4120 from April 8, 2004 through October 29, 2004. 25. Upon information and belief, Mike Loe left his employment with Appellees sometime around the end of 2004. 26. Upon information and belief, Appellees hired Rex Blevins to take Mike Loe's former position with Appellees. 27. Until approximately May 2005, in accordance with what Mike Loe told Mahmood Mohammad concerning the terms of the Debit Account Agreement between the Appellees and Appellant, approximately fifteen thousand dollars ($15,000.00) worth of unused material was credited to Appellant's Debit Account # 6035 3225 3252 4745, and Appellant did not incur any pick-up charges for the delivered items. 28. Beginning in approximately November 2005, Mahmood Mohammad dealt with a different person at Home Depot Store 4120, Robert Bowes, for the first time. Robert 7 Bowes identified himself as the new person in charge of Appellant's Debit Account, replacing Rex Blevins. 29. Robert Bowes indicated that Appellees would no longer accept returns on the following items: a. 2 GE gas ranges, SKU #500-209, at $404.19, for a total of $808.38. b. 1 GE dishwasher, SKU # 108-937, at $193.59. C. 6 hardware metro trim sets by Andersen Windows at $44.60 each, for a total of $267.60. d. 1 track light, SKU# 121-103, at $24.27. 30. Items 29(a) through 29(d) are unused, and, to the extent applicable, are still in their original packing, and were purchased in advance of their anticipated use in reliance upon the representations of Appellees' agent, Mike Loe, as well as the past practice of Appellees with Appellant, that returns would be accepted on all unused items and would be credited back to Appellant's Debit Account without any additional charges. 31. Further, on the items which Appellees did pick up and accept a return, Appellant incurred a total of $127.00 in delivery charges, beginning approximately late 2004, after Mike Loe left Home Depot Store 4120. 32. Additionally, of the items for which Appellees did accept a return, Appellant's Debit Account # 6035 3225 3252 4745 was no longer credited, as had been Appellees' prior practice. 33. Instead of crediting Appellant's Debit Account # 6035 3225 3252 4745, Appellees, beginning on or about June 6, 2006, started issuing Appellant Home Depot Debit Cards totaling four thousand five hundred ninety-seven dollars and sixty-one cents ($4,597.61), which were only good at Appellees' stores. 8 34. Appellant pre-purchased 6 garage doors from Appellees on May 5, 2004, SKU # 804-408 for a total of one thousand one hundred five dollars and fifty-six cents ($1,105.56). 35. Appellant pre-purchased an additional 6 garage doors from Appellees on May 11, 2004, SKU # 804-408 for a total of one thousand one hundred sixteen dollars and seventy-two cents ($1,116.72). 36. But, Appellees never gave Appellant any of the 12 garage doors and Appellees have not repaid or credited Appellant the two thousand two hundred twenty-two dollars and twenty-eight cents ($2,222.28) Appellant incurred in purchasing the 12 garage doors. 37. In Mahmood Mohammad's capacity as Trustee of Sterling Trust Company, Inc. Account #064846, FBO Mahmood Mohammad, Mahmood Mohammad did all contracting work for which he bought the materials from Appellees for the benefit of and to earn money for the trust account. This means that all proceeds from the building and contracting for which Appellant purchased all items from Appellees went toward the benefit of the trust fund. 38. This building and contracting work was a limited undertaking and not an ongoing project. Mahmood Mohammad finished the contracting/building project he was working on for the benefit of the trust fund, and is not planning on undertaking any additional contracting or building work, either for the trust fund, personally, or for any other entity. 39. Thus, store credit is not only in breach of the terms of the Agreement between Appellant and Appellees, it is not usable by the trust account as it is not something that can be deposited into the trust account. 9 40. On September 8, 2006, Appellant commenced an action in Magisterial District Number 09-3-04. 41. A hearing on this matter was held on January 9, 2007, in Magisterial District Number 09-3-04. 42. Magisterial District Judge Thomas A. Placey ruled in favor of Appellees on or about January 17, 2007. 43. On February 2, 2007, Appellant entered into this action via a Notice of Appeal From District Justice Judgment. 44. On February 6, 2007, Appellant served the Notice of Appeal From District Justice Judgment on Appellees and on Magisterial District Judge Thomas A. Placey, and filed the Proof of Service with this Honorable Court. COUNTI Breach of Contract 45. Paragraphs 1-44 are incorporated by reference as if fully set forth herein. 46. In order to show breach of contract, a party must demonstrate (a) the existence of an agreement (b) breach of a duty imposed by the agreement, and (c) damages. Pennsy Supply, Inc. v. American Ash Recycling Corp., 895 A.2d 595, 600 (Pa. Super. 2006). 47. An Agreement existed between Appellant and Appellees. 48. Based on the representations of Appellees' agent to the Agreement and Agreement representative, the terms of the Agreement imposed a duty upon Appellant to pre-purchase the items he needed. 49. Based on the representations of Appellees' agent to the Agreement and Agreement representative, the terms of the Agreement imposed a duty upon Appellees to 10 credit all unused pre-purchased items for any reason, delivered or undelivered, back to Appellant's Debit Account # 6035 3225 3252 4745 without any additional pick-up charges for the delivered items. 50. Appellees' breached their duty to Appellant beginning on or about June 6, 2006, by: (a) failing to properly credit Appellant's Debit Account according to the Agreement terms, (b) improperly charging for delivery of some items (c) refusing to accept returns on many items, and (d) failing to give Appellant possession of several purchased items and/or by failing to pay Appellant for the value of these items when Appellees charged Appellant and Appellant paid for goods which Appellees never delivered. 51. Appellees' breach of contract has damaged Appellant, in that: (a) Appellant's Debit Account has not been properly credited, (b) Appellant has been improperly charged for services, and (c) Appellant has been charged for some items which Appellant has never received. In addition, Appellant has amassed substantial costs and fees trying to resolve this matter with Appellees. WHEREFORE, Appellant prays this Honorable Court find for the Appellant and against the Appellees and award damages to the Appellant of at least eight thousand two hundred forty dollars and seventy-three cents ($8,240.73), in addition to court costs, attorney fees, interest and other damages that this Honorable Court deems appropriate. COUNT II Doctrine of Necessary Implication 52. Paragraphs 1-51 are incorporated by reference as if fully set :forth herein. 53. The Doctrine of Necessary Implication states that: 11 In the absence of an express provision, the law will imply an agreement by the parties to a contract to do and perform those things that according to reason and justice they should do in order to carry out the purpose for which the contract was made and to refrain from doing anything that would destroy or injure the other party's right to receive the fruits of the contract. Slater v. Pearle Vision Center, 376 Pa.Super. 580, 586, 546 A.2d 676, 679 (1988) (quoting Frickert v. Deiter Bros., Fuel Co. Inc., 464 Pa. 596, 347 A.2d 701 (1975) (Pomeroy, J., concurring)). See also Agrecycle, Inc. v. City of Pittsburgh, 783 A.2d 863, 868 (Pa. Commw. Ct. 2001), cert. denied, 568 Pa. 687, 796 A.2d 319 (2002). 54. The Doctrine of Necessary Implication "may be applied only in limited circumstances to prevent injustice where it is abundantly clear that the parties intended to be bound by the terms sought to be implied." Agrecycle, Inc. v. City of Pittsburgh, 783 A.2d 863, 868 (Pa. Commw. Ct. 2001), cert. denied, 568 Pa. 687, 796 A.2d 319 (2002). 55. In this case, Appellant pre-purchased the supplies Appellant needed exclusively from Appellees. 56. In exchange for the benefit that Appellees receive by having Appellant pre- purchase all the building supplies Appellant needed exclusively from Appellees, Appellant conferred a benefit upon Appellees. 57. Appellees, in return, were obligated to the performance of certain duties, including: (a) allowing the return of all items and properly crediting Appellant's Account for the return of these items, (b) not charging for pick-up of unused items, and (c) repaying Appellant for items Appellant purchased but that Appellees never delivered to Appellant. 12 58. According to the Doctrine of Necessary Implication, Appellees are obligated to allow Appellant to receive the fruits of the contract between Appellant and Appellees. 59. Applying the Doctrine of Necessary Implication is necessary in this limited circumstance to prevent injustice. 60. It is abundantly clear that the parties intended to be bound by the terms of the agreement between the parties because, in exchange for Appellant pre-purchasing all of Appellant's building supplies exclusively from Appellees, Appellees (a) allowed the return of all items and properly crediting Appellant's Account for the return of these items, (b) did not charge for pick-up of unused items, and (c) repaid Appellant for items Appellant purchased but that Appellees never delivered until approximately November 2005. 61. Beginning approximately November 2005, Appellees began breaching the Agreement by (a) not allowing the return of all items and not properly crediting Appellant's Account for the return of these items, (b) charging for delivery and/or pick-up of items, and (c) failing to repay Appellant for items Appellant purchased but that Appellees never delivered. WHEREFORE, Appellant prays that this Honorable Court declare that Appellees violated the Doctrine of Necessary Implication, and that Appellees, according to reason and justice, are responsible for compensating Appellant for Appellant's damages of at least eight thousand two hundred forty dollars and seventy-three cents ($8,240.73), in addition to court costs, attorney fees, interest and other damages that this Honorable Court deems appropriate. COUNT III Unjust Enrichment 62. Paragraphs 1-61 are incorporated by reference as if fully set forth herein. 13 63. Unjust enrichment occurs when benefits are conferred on an individual or entity by another individual or entity and the individual or entity receiving the benefits enjoys the benefits without payment of value. Burgettstown-Smith Township Joint Sewage Authority v. Langeloth Townsite Company. 403 Pa. Super. 84, 588 A.2d 43 (1990). 64. Here, Appellant pre-purchased all of Appellant's building and construction supplies exclusively from Appellees in reliance on the fact that Appellant would be able to (a) return all unused items and Appellant's Debit Account with Appellees would be properly credited for the return of these items, (b) arrange for Appellees to deliver and/or pick-up all items free of charge, and (c) get repaid for items Appellant purchased but that Appellees never delivered to Appellant. 65. Appellant has paid at least two thousand two hundred twenty-two dollars and twenty-eight cents ($2,222.28) for items Appellant did not receive. 66. Appellant paid Appellees at least two hundred eight thousand two hundred eighty-eight dollars and twenty-three cents ($208,288.23) from April 8, 2004 until January 14, 2005 in exclusively purchasing building supplies from Appellees, in reliance on the fact that Appellant was to not incur pick-up fees and was to have Appellant's Debit Account credited for all unused returns. 67. The sole reason Appellant agreed to exclusively purchase all of Appellant's building supplies from Appellees was because, under the terms of the Agreement, Appellant was to be able to (a) return all unused items and Appellant's Account with Appellees would be properly credited for the return of these items, (b) arrange for Appellees to deliver all Appellant's unused items free of charge, and (c) get repaid for items Appellant purchased but that Appellees never delivered to Appellant. 14 68. Appellees have been unjustly enriched by receiving money for items which were not delivered, by charging for items for which they were not supposed to charge, and by failing to properly credit Appellant's Account for the unused returns without payment of value. WHEREFORE, Appellant prays that this Honorable Court declare that Appellees were unjustly enriched when they received the exclusive purchases of Appellant's supplies without providing Appellant the value of his purchases, and that Appellees, according to reason and justice, are responsible for compensating Appellant for Appellant damages of at least eight thousand two hundred forty dollars and seventy-three cents ($8,240.73), in addition to court costs, attorney fees, interest and other damages that this Honorable Court deems appropriate. Respectfully Submitted, 016? M. A&O1 Christina M. Mellott, Esquire PA Atty. I.D. No. 81369 Page, Wolfberg & Wirth, LLC 5010 East Trindle Road, Suite 202 Mechanicsburg, PA 17050 Dated: (717) 691-0100 (717) 691-1226 facsimile COUNSEL FOR APPELLANT, MAHMOOD MOHAMMAD, in his capacity as trustee of the STERLING TRUST COMPANY, INC. Custodian, FBO Mahmood Mohammad, Account #064846 15 VERIFICATION Mahmood Mohammad hereby verifies that the facts set forth in the foregoing Complaint are true and correct to the best of his knowledge or information and belief and that this verification is made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. z1/6la 7 DATE NAME CERTIFICATE OF SERVICE I, Mahmood Mohammad, hereby certify that I have served a true and correct copy of the foregoing Complaint, upon the counsel for Appellees listed below via first class mail: Eric B. Smith, Esq. High, Swartz, Roberts & Seidel, LLP 40 East Airy Street Norristown, PA 19404 Counsel for Appellees, The Home Depot Store 4120; The Home Depot, Inc.; and Home Depot U.S.A., Inc. Dated:2? 2-04 M Christina M. Mellott, Esquire PA Atty. I.D. No. 81369 Page, Wolfberg & Wirth, LLC 5010 East Trindle Road, Suite 202 Mechanicsburg, PA 17050 (717) 691-0100 (717) 691-1226 facsimile COUNSEL FOR APPELLANT, MAHMOOD MOHAMMAD, in his capacity as trustee of the STERLING TRUST COMPANY, INC. Custodian, FBO Mahmood Mohammad, Account #064846 -' ?? rah R1 w f?, lb , HIGH, SWARTZ, ROBERTS & SEIDEL LLP By: Eric B. Smith, Esquire Attorney I.D. No. 81023 40 East Airy Street Norristown, PA 19404 (610) 275-0700 Attorneys for Defendants The Home Depot Store #4120, The Home Depot, Inc., and Home Depot U.S.A., Inc. TO: PLAINTIFF, YOU ARE HEREBY NOTIFIED TO PLEAD TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE OR A DEFAULT JUDGMENT MAY BE ENTERED AGAINST YOU. High, Swartz, Roberts & Seidel LLP Eric B. Smith, Esquire Counsel for Defendants The Home Depot Store #4120, The Home Depot, Inc. and Home Depot U.S.A., Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MAHMOOD MOHAMMAD, in his capacity as Trustee of the STERLING TRUST COMPANY, INC. Custodian, FBO Mahmood Mohammad, Account # 064846 V. No. 07-662-Civil THE HOME DEPOT STORE #4120, THE HOME DEPOT, INC., and HOME DEPOT U.S.A., INC. ANSWER TO COMPLAINT WITH NEW MATTER Defendants, as captioned above, (collectively "Home Depot") by and through their counsel, High, Swartz, Roberts & Seidel LLP, respectfully file this answer with new matter to the complaint of Plaintiff, Mahmood Mohammad, in his capacity as trustee of the Sterling Trust Company, Inc., Custodian, FBO Mahmood Mohammad, Account #064846 ("Plaintiff') and in support thereof, answers as follows: 1. Denied as a conclusion of law. 2. Denied as a conclusion of law. 3. Denied as a conclusion of law. 4. Admitted only upon information and belief. 5. Denied as a conclusion of law. 6. Denied as a conclusion of law. 7. Denied as stated. It is admitted only that Home Depot U.S.A., Inc. owns and operates that certain Home Depot store located at 6000 Carlisle Pike, Mechanicsburg, PA. 8. Admitted. 9. Admitted. 10. Admitted. 11. Admitted. 12. Denied as a conclusion of law to which no response is required. 13. It is admitted only that in 2004 Home Depot Store #4120 did not allow for any material to leave the premises without prepayment. The remainder of this paragraph is denied as a conclusion of law. 14. Denied as a conclusion of law to which no response is required. 15. It is admitted that most materials were delivered to Plaintiff free of charge. The balance of this paragraph is denied as a conclusion of law. 16. It is admitted that near the end of 2004 a Carlisle Home Depot store opened. The remainder of this paragraph is denied in as much as it is unknown to Home Depot where Plaintiff purchased most of his materials. However, it is admitted that Plaintiff did purchase materials at the Carlisle Home Depot. 17. Admitted. 18. It is admitted that near the end of 2004 Plaintiff met Ray Poe, the District Pro Account Sales Manager. The remainder of the paragraph is denied as stated. It is admitted only that Ray Poe suggested that Appellant open a Home Depot credit account. 2 19. Denied as stated. It is admitted only that Ray Poe provided Plaintiff with an application to open a Home Depot credit card account, credit card # 6035 3225 3252 4745. The remainder of the paragraph is denied in as much as Home Depot does not have any knowledge, information or belief as to when Ray Poe provided Plaintiff with an application to open a credit card account. 20. Denied as stated. It is admitted only that since the end of 2004 Plaintiff has made numerous purchases, as well as numerous returns and credits to credit card # 6035 3225 3252 4745. 21. Denied as stated. It is admitted only that the credit card application that Plaintiff signed provided all of the written terms of the credit card agreement. 22. It is admitted that Mike Loe was the employee of Home Depot that Plaintiff often dealt with at Home Depot Store 4120, regarding purchases made through the Pro Desk, until September 2004. The remainder of the paragraph is denied in as much as Home Depot does not have any knowledge, information or belief as to the allegations of the remainder of the paragraph. However, it is specifically denied that Mike Lowe was the authorized person in charge of all commercial accounts, including Plaintiff's account, and it is further specifically denied that Mike Lowe had the authority and permission of Home Depot to act on behalf of, or bind, Home Depot beyond or contrary to Home Depot's policies and procedures. 23. Denied as a conclusion of law to which no response is required. 24. Denied as a conclusion of law to which no response is required. 25. It is admitted only that Mike Loe was no longer employed by Home Depot beginning September 2004. 26. Denied as stated. It is admitted only that Rex Blevins was hired after Mike Loe left Home Depot. 3 27. Denied as a conclusion of law to which no response is required. It is admitted only that until approximately May, 2005, Plaintiff did not incur any pick-up charges for the delivered items. 28. It is admitted only that beginning in approximately November 2005, Plaintiff dealt with a different person at Home Depot Store 4120, Robert Bowes, for the first time. The remainder of the paragraph is denied as stated. It is admitted only that Robert Bowes was the primary contact for Plaintiff's will-call account. 29. Admitted. 30. Denied as a conclusion of law to which no response is required. 31. Denied as a conclusion of law to which no response is required. 32. Denied as a conclusion of law to which no response is required. 33. It is admitted only that Home Depot began issuing Home Depot "store credit" cards to Plaintiff for certain of his returns. The remainder of this paragraph is denied as a conclusion of law to which no response is required. 34. Denied as a conclusion of law to which no response is required. 35. It is admitted only that Plaintiff purchased the alleged garage doors. 36. Denied. To the contrary, Plaintiff (1) received the garage doors alleged and/or (2) failed, himself, to keep track of his own purchases and returns, and/or (3) failed to timely notify Home Depot of his desire to return the garage doors. By way of further answer, any demand or right or desire to return the garage doors at this time, for credit to Plaintiff's account, or for store credit, or for credit of any kind, is barred by Home Depot's return policy and/or Article 2 of the Uniform Commercial Code. 37. Denied in as much as Home Depot does not have any knowledge, information or belief as to the allegations of this paragraph. This paragraph is further denied as a conclusion of law to which no response is required. 4 38. Denied in as much as Home Depot does not have any knowledge, information or belief as to the allegations of this paragraph. This paragraph is further denied as a conclusion of law to which no response is required. 39. Denied in as much as Home Depot does not have any knowledge, information or belief as to the allegations of this paragraph. This paragraph is further denied as a conclusion of law to which no response is required. 40. Admitted. 41. Admitted. 42. Admitted. 43. Admitted. 44. Admitted. COUNTI BREACH OF CONTRACT 45. Home Depot incorporates its answer to paragraphs 1 through 44 as thought set forth at length. 46. Denied as a conclusion of law to which no response is required. 47. Denied as a conclusion of law to which no response is required. 48. Denied as a conclusion of law to which no response is required. 49. Denied as a conclusion of law to which no response is required. 50. Denied as a conclusion of law to which no response is required. 51. Denied as a conclusion of law to which no response is required. WHEREFORE, Defendants respectfully request that Your Honorable Court enter judgment in their favor and against Plaintiff and grant such other relief for Defendants as the Court deems just. 5 COUNT H DOCTRINE OF NECESSARY IMPLICATION 52. Home Depot incorporates its answer to paragraphs 1 through 51 as thought set forth at length. 53. Denied as a conclusion of law to which no response is required. By way of further answer, as a matter of law, the doctrine of necessary implication is not a cause of action, but rather a rule of construction or interpretation. 54. Denied as a conclusion of law to which no response is required. By way of further answer, as a matter of law, the doctrine of necessary implication is not a cause of action, but rather a rule of construction or interpretation. 55. Denied as a conclusion of law to which no response is required. 56. Denied as a conclusion of law to which no response is required. 57. Denied as a conclusion of law to which no response is required. 58. Denied as a conclusion of law to which no response is required. By way of further answer, as a matter of law, the doctrine of necessary implication is not a cause of action, but rather a rule of construction or interpretation. 59. Denied as a conclusion of law to which no response is required. By way of further answer, as a matter of law, the doctrine of necessary implication is not a cause of action, but rather a rule of construction or interpretation. 60. Denied as a conclusion of law to which no response is required. 61. Denied as a conclusion of law to which no response is required. WHEREFORE, Defendants respectfully request that Your Honorable Court enter judgment in their favor and against Plaintiff and grant such other relief for Defendants as the Court deems just. 6 COUNT III UNJUST ENRICHMENT 62. Home Depot incorporates its answer to paragraphs 1 through 61 as thought set forth at length. 63. Denied as a conclusion of law to which no response is required. By way of further answer, as a matter of law, unjust enrichment cannot exist where the plaintiff also alleges the existence of a contract. 64. Denied as a conclusion of law to which no response is required. 65. Denied as a conclusion of law to which no response is required. 66. Denied as a conclusion of law to which no response is required. 67. Denied as a conclusion of law to which no response is required. 68. Denied as a conclusion of law to which no response is required. By way of further answer, as a matter of law, unjust enrichment cannot exist where the plaintiff also alleges the existence of a contract. WHEREFORE, Defendants respectfully request that Your Honorable Court enter judgment in their favor and against Plaintiff and grant such other relief for Defendants as the Court deems just. NEW MATTER 69. Home Depot incorporates herein paragraphs 1 through 68 as though set forth at length. 70. Plaintiff's claims against Home Depot are barred by the doctrine of settlement and release. 71. Plaintiff's claims are barred by the doctrines of res judicata, collateral estoppel and/or claim preclusion. 72. Plaintiff's claims are barred by all applicable statutes of limitation. 73. Plaintiff's claims are barred by the doctrines of laches, estoppel and/or waiver. 7 74. If Plaintiff in fact sustained any damages, which damages are expressly denied, Home Depot denies that such damages were caused by any act or failure to act on the part of Defendant. 75. Plaintiff failed to mitigate his damages, which damages are expressly denied, and recovery by Plaintiff is accordingly barred or should be substantially reduced. 76. Plaintiff's alleged losses or damages, which damages are expressly denied, are a result of the liability-producing conduct of other persons or entities who are not now currently parties to this action and over whom Defendant had or has no control or right or duty to control and/or were caused by the conduct of Plaintiff. 77. Plaintiff s complaint fails to state any claim upon which relief may be granted against Home Depot. 78. Home Depot is entitled to enact and enforce it own policies respecting the return of merchandise purchased from its stores and any credit, if any, which may be refunded 79. Plaintiff's complaint alleges nothing more than a customer service dispute which is not a cognizable claim at law and for which the law does not afford a remedy. 80. Plaintiff failed to serve Defendant, or if service did occur, such service was improper. 81. All or part of Plaintiff's claims are barred, waived, or are unenforceable pursuant to Article 2 of the Uniform Commercial Code, as codified in Title 13 of Pennsylvania Consolidated Statutes. 82. Sterling Trust Company, Inc. ("Sterling"), is a necessary party. 83. Plaintiff lacks standing and/or is not the real party in interest with respect to the claims alleged in the complaint. 84. Plaintiff has no capacity to sue on the claims alleged. 8 85. The Home Depot, Inc., is not an owner or operator of any Home Depot store, including store 4120, and does not engage in retail sales through the home improvement chain known as "Home Depot" or "The Home Depot." 86. Your Honorable Court lacks subject matter jurisdiction over this suit and the claims alleged in the Complaint. 87. Plaintiff has been provided with store credit by Home Depot in an amount equal to some or all of Plaintiff's claim against Home Depot, therefore Plaintiff's claims should be substantially reduced or set off in its entirety. WHEREFORE, Defendants respectfully request that Your Honorable Court enter judgment in their favor and against Plaintiff and grant such other relief for Defendants as the Court deems just. HIGH, SWARTZ, ROBERTS & SEIDEL LLP By: Eric B. Smith, Esquire Counsel for Defendants The Home Depot Store #4120, The Home Depot, Inc., and . L Home Depot U.S.A., Inc. Date: 9 VERIFICATION I, Eric B. Smith, Esquire, hereby verify that I am the attorney for Defendants The Home Depot Store 44120, The Home Depot, Inc., and Home Depot U.S.A., Inc., in this action, that I am authorized and have sufficient knowledge, information and belief to make this verification, that the statements made in the foregoing Answer to Complaint with New Matter are true and correct to the best of my knowledge, information and belief and that any matter stated therein that is not within my knowledge, information or belief is based upon information received from Defendant. I understand that the statements made herein are subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities. -+"7 ,f , Eric B. Smith, Esquire Date: < /? 0? HIGH, SWARTZ, ROBERTS & SEIDEL LLP By: Eric B. Smith, Esquire Attorney I.D. No. 81023 40 East Airy Street Norristown, PA 19404 (610) 275-0700 Attorneys for Defendants The Home Depot Store #4120, The Home Depot, Inc., and Home Depot U.S.A., Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MAHMOOD MOHAMMAD, in his capacity as Trustee of the STERLING TRUST COMPANY, INC. Custodian, FBO Mahmood Mohammad, Account # 064846 V. No. 07-662-Civil THE HOME DEPOT STORE #4120, THE HOME DEPOT, INC., and HOME DEPOT U.S.A., INC. CERTIFICATE OF SERVICE I, Eric B. Smith, Esquire, attorney Defendants The Home Depot Store #4120, The Home Depot, Inc., and Home Depot U.S.A., Inc., hereby certify that on March 29, 2007,1 served a true and correct copy of the Answer to Complaint with New Matter, via U.S. Mail, to the following: Christina M. Mellott, Esquire Page, Wolfberg & Wirth, LLC 5010 East Trindle Road, Suite 202 Mechanicsburg, PA 17050 Date: ? - .-1, e HIGH, SWARTZ, ROBERTS & SEIDEL LLP By: Eric B. Smith, Esquire Counsel for Defendants The Home Depot Store #4120, The Home Depot, Inc., and Home Depot U.S.A., Inc. ;' 71 % -1% HIGH, SWARTZ, ROBERTS & SEIDEL LLP By: Eric B. Smith, Esquire Attorney I.D. No. 81023 40 East Airy Street Norristown, PA 19404 (610) 275-0700 Attorneys for Defendants The Home Depot Store #4120, The Home Depot, Inc., and Home Depot U.S.A., Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MAHMOOD MOHAMMAD, in his capacity as Trustee of the STERLING TRUST COMPANY, INC. Custodian, FBO Mahmood Mohammad, Account # 064846 V. No. 07-662-Civil THE HOME DEPOT STORE #4120, THE HOME DEPOT, INC., and HOME DEPOT U.S.A., INC. PRAECIPE TO ATTACH TO THE PROTHONOTARY: Kindly attach the document attached hereto as Verification to Defendant's Answer with New Matter to First Amended Complaint, filed on March 30, 2007. HIGH, SWARTZ, ROBERTS & SEIDEL LLP By: Eric B. Smith, Esquire Counsel for Defendants The Home Depot Store #4120, The Home Depot, Inc., and Home Depot U.S.A., Inc. Date: April 9, 2007 04/05/2007 12:15 FAX 610 275 5290 HIGH SWARTZ R&S R 002 l h VERIFICATION I, Mark Ulrich, Store Manager of Home Depot #41209 located at 6000 Carlisle Pike, Mechanicsburg, Pennsylvania, hereby verify that I am an employee of Home Depot U.S.A., Inc. and that I am authorized and have sufficient knowledge, information and belief to make this verification, that the statements made in the foregoing Answer to Complaint with New Matter are true and correct to the best of my knowledge, information and belief. I understand that the statements made herein are subject to the penalties of 18 Pa. C.S. § 4904 relating to unworn falsification to authorities. C Mark Ulrlc Date: S 2? ?z,s s?z Uri Y -TI ?Ti / ?? C:3 HIGH, SWARTZ, ROBERTS & SEIDEL LLP By: Eric B. Smith, Esquire Attorney I.D. No. 81023 40 East Airy Street Norristown, PA 19404 (610) 275-0700 Attorneys for Defendants The Home Depot Store #4120, The Home Depot, Inc., and Home Depot U.S.A., Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MAHMOOD MOHAMMAD, in his capacity as Trustee of the STERLING TRUST COMPANY, INC. Custodian, FBO Mahmood Mohammad, Account # 064846 V. No. 07-662-Civil THE HOME DEPOT STORE #4120, THE HOME DEPOT, INC., and HOME DEPOT U.S.A., INC. CERTIFICATE OF SERVICE I, Eric B. Smith, Esquire, attorney Defendants The Home Depot Store #4120, The Home Depot, Inc., and Home Depot U.S.A., Inc., hereby certify that on April 9, 2007, I served a true and correct copy of Praecipe to Attach via U.S. Mail to the following: Christina M. Mellott, Esquire Page, Wolfberg & Wirth, LLC 5010 East Trindle Road, Suite 202 Mechanicsburg, PA 17050 HIGH, SWARTZ, ROBERTS & SEIDEL LLP By: Eric B. Smith, Esquire Counsel for Defendants The Home Depot Store #4120, The Home Depot, Inc., and Home Depot U.S.A., Inc. Date: April 9, 2007 =' ? ?. .., -_, i ? ?F Y IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MAHMOOD MOHAMMAD, in his capacity as trustee of the STERLING TRUST COMPANY, INC. Custodian, FBO Mahmood Mohammad, Account #064846 Appellant, V. No. 07-662-Civil THE HOME DEPOT STORE 4120; THE HOME DEPOT, INC.; and HOME DEPOT U.S.A., INC. Appellees. REPLY TO NEW MATTER AND NOW, comes Plaintiff, Mahmood Mohammad in his capacity as trustee of the Sterling Trust Company, Inc. Custodian, FBO Mahmood Mohammad, Account #064846 by and through his counsel Page, Wolfberg & Wirth, LLC, and provides the following Reply to New Matter of Defendant, The Home Depot Store 4120; The Home Depot, Inc.; and Home Depot U.S.A., Inc. Each numbered paragraph below corresponds to the like-numbered paragraph of the New Matter. Unless specifically admitted herein, each and every factual averment of the New Matter is denied. 69. This is not an averment to which a response is required. The allegations in this Paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is required, Plaintiff denies the allegations. Strict proof is demanded. 70. Denied. The allegations in this Paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is required, Plaintiff denies the allegations. Strict proof is demanded. 71. Denied. The allegations in this Paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is required, Plaintiff denies the allegations. Strict proof is demanded. 72. Denied. The allegations in this Paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is required, Plaintiff denies the allegations. Strict proof is demanded. 73. Denied. The allegations in this Paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is required, Plaintiff denies the allegations. Strict proof is demanded. 74. Denied. The allegations in this Paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is required, Plaintiff denies the allegations. Strict proof is demanded. 75. Denied. The allegations in this Paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is required, Plaintiff denies the allegations. Strict proof is demanded. 76. Denied. The allegations in this Paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is required, Plaintiff denies the allegations. Strict proof is demanded. 77. Denied. The allegations in this Paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is required, Plaintiff denies the allegations. Strict proof is demanded. 2 78. Denied. The allegations in this Paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is required, Plaintiff denies the allegations. Strict proof is demanded. 79. Denied. The allegations in this Paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is required, Plaintiff denies the allegations. Strict proof is demanded. 80. Denied. The allegations in this Paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is required, Plaintiff denies the allegations. Strict proof is demanded. 81. Denied. The allegations in this Paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is required, Plaintiff denies the allegations. Strict proof is demanded. 82. Denied. The allegations in this Paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is required, Plaintiff denies the allegations. Strict proof is demanded. 83. Denied. The allegations in this Paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is required, Plaintiff denies the allegations. Strict proof is demanded. 84. Denied. The allegations in this Paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is required, Plaintiff denies the allegations. Strict proof is demanded. 85. Plaintiff is without knowledge or information sufficient to form a belief as to the truth of this Paragraph, and therefore the allegations contained in this paragraph are denied. 3 86. Denied. The allegations in this Paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is required, Plaintiff denies the allegations. Strict proof is demanded. 87. Denied as stated. It is denied that Plaintiff has been provided with store credit in an amount equal to some or all of Plaintiff s claim against Home Depot. The remaining allegations in this Paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is required to the remaining allegations in this Paragraph, Plaintiff denies the allegations. Strict proof is demanded. WHEREFORE, Plaintiff respectfully requests that Your Honorable Court enter judgment against Defendants and in Plaintiff s favor, and not award any relief to the Defandants. Further, Plaintiff respectfully requests that Your Honorable Court hold Defendants jointly and severally liable for damages, as pleaded in Plaintiffs Complaint, in an amount of at least eight thousand two hundred forty dollars and seventy-three cents ($8,240.73), in addition to court costs, attorney fees, interest and other damages that this Honorable Court deems appropriate. Respectfully Submitted, Dated: 4 1°t /2obl CLJa3 v %? < - Christina M. Mellott, Esquire PA Atty. I.D. No. 81369 Page, Wolfberg & Wirth, LLC 5010 East Trindle Road, Suite 202 Mechanicsburg, PA 17050 (717) 691-0100; (717) 691-1226 facsimile COUNSEL FOR PLAINTIFF, MAHMOOD MOHAMMAD, in his capacity as trustee of the STERLING TRUST COMPANY, INC. Custodian, FBO Mahmood Mohammad, Account #064846 4 VIItIFI ATION Mahmood Mohammad hereby verifies that the facts set forth in the foregoing Reply to New Matter are true and correct to the best of his knowledge or information and belief and that this verification is made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. he? A ATE Mahmood Mohammad CERTIFICATE OF SERVICE I hereby certify that I have served a true and correct copy of the foregoing Reply to New Matter upon the counsel for Defendants listed below via first class mail: Eric B. Smith, Esq. High, Swartz, Roberts & Seidel, LLP 40 East Airy Street Norristown, PA 19404 Counsel for Defendants, The Home Depot Store 4120; The Home Depot, Inc.; and Home Depot U.S.A., Inc. Dated: 4 / is ? /2oo4 CK"Xa- Christina M. Mellott, Esquire PA Atty. I.D. No. 81369 Page, Wolfberg & Wirth, LLC 5010 East Trindle Road, Suite 202 Mechanicsburg, PA 17050 (717) 691-0100 (717) 691-1226 facsimile COUNSEL FOR PLAINTIFF, MAHMOOD MOHAMMAD, in his capacity as trustee of the STERLING TRUST COMPANY, INC. Custodian, FBO Mahmood Mohammad, Account #064846 N_ Q C 'n W HIGH, SWARTZ, ROBERTS & SEIDEL LLP By: Eric B. Smith, Esquire Attorney I.D. No. 81023 40 East Airy Street Norristown, PA 19404 (610) 275-0700 Attorneys for Defendants The Home Depot Store #4120, The Home Depot, Inc., and Home Depot U.S.A., Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MAHMOOD MOHAMMAD, in his capacity as Trustee of the STERLING TRUST COMPANY, INC. Custodian, FBO Mahmood Mohammad, Account # 064846 V. No. 07-662-Civil THE HOME DEPOT STORE #4120, THE HOME DEPOT, INC., and HOME DEPOT U.S.A., INC. CERTIFICATE OF SERVICE I, Eric B. Smith, Esquire, attorney Defendants The Home Depot Store #4120, The Home Depot, Inc., and Home Depot U.S.A., Inc., hereby certify that on April 23, 2007, I served a true and correct copy of Defendants' interrogatories, request for production of documents and expert interrogatories, via U.S. Mail, to the following: Christina M. Mellott, Esquire Page, Wolfberg & Wirth, LLC 5010 East Trindle Road, Suite 202 Mechanicsburg, PA 17050 A true and correct copy of the transmittal letter is attached hereto and made a part hereof, marked Exhibit "A." HIGH, SWARTZ, ROBERTS & SEIDEL LLP By: ?,z C Eric B. Smith, Esquire Counsel for Defendants The Home Depot Store #4120, The Home Depot, Inc., and Date: 7 Home Depot U.S.A., Inc. 4. . 7 HIGH, SWARTZ, ROBERTS & SEIDEL LLP STEPHEN G.YUSEM GILBERT P. HIGH, JR. PAUL BAKER BARTLE D. BARRY PRITCHARD, JR. THOMAS D. REES LOTS A. NAFZIGER MARY CUSHING DOHERTY J. KENNETH CRONEY ERIC B. SMITH JOEL D. ROSEN RICHARD C. SOKORAI RONALD W.FENSTERMACHER,JR. ALAN W. FLENNER, P.E. JAMES B. SHRIMP MELISSA M. BOYD STEPHANIE E. LITTLE JACQUELINE J.SHAFER KERI A. SCHANTZ ATTORNEYS AT LAW OF COUNSEL 40 EAST AIRY STREET MARLYN SMITH E RGE M. M. F. AMA N AN N III GEORG P. O. BOX 671 JOHN P. GREGG KENNETH R. MYERS NORRISTOWN, PENNSYLVANIA 19404 ESTABLISHED 1914 esmith@highswartz.com (610) 275-0700 FAX (610) 275-5290 main@highswartz.com www.highswartz.com April 23, 2007 Christina M. Mellott, Esquire Page, Wolfberg & Wirth, LLC 5010 East Trindle Road Suite 202 Mechanicsburg, PA 17050 Re: Mahmood Mohammad v. The Home Depot U.S.A., Inc. Cumberland County CCP No. 07-662-Civil Dear Christina: Enclosed please find Defendants' interrogatories, request for production of documents, and expert interrogatories directed to Plaintiff. Kindly respond to same within the time limitations set forth in the Pennsylvania Rules of Civil Procedure Very truly yours, Eric B. Smith EBS/lan Enclosures cc: Home Depot U.S.A., Inc. (via email w/encs.) EXHIBIT "A" n x'11 t ? ?? 1' = t -?S un y cr, C HIGH, SWARTZ, ROBERTS & SEIDEL LLP By: Eric B. Smith, Esquire Attorney I.D. No. 81023 40 East Airy Street Norristown, PA 19404 (610) 275-0700 Attorneys for Defendants The Home Depot Store #4120, The Home Depot, Inc., and Home Depot U.S.A., Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MAHMOOD MOHAMMAD, in his capacity as Trustee of the STERLING TRUST COMPANY, INC. Custodian, FBO Mahmood Mohammad, Account # 064846 V. No. 07-662-Civil THE HOME DEPOT STORE #4120, THE HOME DEPOT, INC., and HOME DEPOT U.S.A., INC. CERTIFICATE OF SERVICE I, Eric B. Smith, Esquire, attorney Defendants The Home Depot Store #4120, The Home Depot, Inc., and Home Depot U.S.A., Inc., hereby certify that on July 3, 2007, I served a true and correct copy of Defendants' answers and responses to Plaintiff's interrogatories and request for documents, via Federal Express, to the following: Christina M. Mellott, Esquire Page, Wolfberg & Wirth, LLC 5010 East Trindle Road, Suite 202 Mechanicsburg, PA 17050 A true and correct copy of the transmittal letter is attached hereto and made a part hereof, marked Exhibit "A." HIGH, SWARTZ, ROBER SEIDEL LLP By: Eric B. Smith, Esquire Counsel for Defendants The Home Depot Store #4120, The Home Depot, Inc., and Date: July 9, 2007 Home Depot U.S.A., Inc. HIGH, SWARTZ, ROBERTS & SEIDEL LLP GILBERT P. HIGH, JR. PAUL BAKER BARTLE 0. BARRY PRITCHARD, JR. THOMAS D. REES LOIS A. NAFZJGER MARY CUSHING DOHERTY J. KENNETH CRONEY ERIC B. SMITH JOEL D. ROSEN RICHARD C. SOKORAI RONALD W. FENSTERMACHER, JR. ALAN W. FLENNER P.E. JAMES B. SHRIMP MELISSA M. BOYD STEPHANIE E. LITTLE JACQUELINE J. SHAFER KERI A. SCHANTZ ATTORNEYS AT LAW 40 EAST AIRY STREET P. O. BOX 671 NORRISTOWN, PENNSYLVANIA 19404 ESTABLISHED 1914 (610) 275-0700 FAX (610) 275-5290 esmlth@highswartz.com www.highswartz.com July 3, 2007 Via Federal Express TrackinE No.: 8614 5513 1437 Christina M. Mellott, Esquire Page, Wolfberg & Wirth, LLC 5010 East Trindle Road, Suite 202 Mechanicsburg, PA 17050 Re: Mahmood Mohammad v. The Home Depot U.S.A., Inc. Cumberland County CCP No. 07-662-Civil Dear Ms. Mellott: OF COUNSEL MARLYN F. SMITH GEORGE M. AMAN M JOHN P. GREGG KENNETH R. MYERS Enclosed is Defendants' Answers and Responses to Plaintiff's Interrogatories and Request for Production of Documents to Defendants. Very truly yours, Eric B. Smith EBS/lay Enclosures cc: Home Depot U.S.A., Inc. (via email) EXHIBIT "A" _? co HIGH, SWARTZ, ROBERTS & SEIDEL LLP By: Eric B. Smith, Esquire Attorney I.D. No. 81023 40 East Airy Street Norristown, PA 19404 (610) 275-0700 Attorneys for Defendants The Home Depot Store #4120, The Home Depot, Inc., and Home Depot U.S.A., Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MAHMOOD MOHAMMAD, in his capacity as Trustee of the STERLING TRUST COMPANY, INC. Custodian, FBO Mahmood Mohammad, Account # 064846 V. No. 07-662-Civil THE HOME DEPOT STORE #4120, THE HOME DEPOT, INC., and HOME DEPOT U.S.A., INC. ORDER TO SETTLE, DISCONTINUE AND END TO THE PROTHONOTARY: Kindly mark the above matter settled, discontinued and ended, as to all claims against all Defendants, with prejudice. PAGE, WOLFBERG & WIRTH, LLC By: . Christina M. Mellott, Esquire Counsel for Plaintiff MAHMOOD MOHAMMAD, in his capacity as Trustee of the STERLING TRUST COMPANY, INC. Custodian, FBO Mahmood Mohammad, Account # 064846 Date: 9 /25/2061 C? ?.,7 _ ? y - C+.7 ?_ ? ? f. ji :: -?t tr`: .?,: HIGH, SWARTZ, ROBERTS & SEIDEL LLP By: Eric B. Smith, Esquire Attorney I.D. No. 81023 40 East Airy Street Norristown, PA 19404 (610) 275-0700 Attorneys for Defendants The Home Depot Store #4120, The Home Depot, Inc., and Home Depot U.S.A., Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MAHMOOD MOHAMMAD, in his capacity as Trustee of the STERLING TRUST COMPANY, INC. Custodian, FBO Mahmood Mohammad, Account # 064846 V. THE HOME DEPOT STORE #4120, THE HOME DEPOT, INC., and HOME DEPOT U.S.A., INC. • ? h7 C No. 07-662-Civil CERTIFICATE OF SERVICE I, Eric B. Smith, Esquire, attorney Defendants The Home Depot Store #4120, The Home Depot, Inc., and Home Depot U.S.A., Inc., hereby certify that on October 1, 2007, I served a true and correct copy of an Order to Settle, Discontinue and End, via U.S. Mail, to the following: Christina M. Mellott, Esquire Page, Wolfberg & Wirth, LLC 5010 East Trindle Road, Suite 202 Mechanicsburg, PA 17050 HIGH, SWARTZ, ROBERTS & SEIDEL LLP By: Eric B. Smith, Esquire Counsel for Defendants The Home Depot Store #4120 The Home Depot, Inc. Home Depot U.S.A., Inc. Date: October 1, 2007 ? £ 1 Cv ? _r ? f:) _ i .' a i {'.s% j _ r, y4, ... ? u f .? f `f?i ?: ? p