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Home My WebLink About97-05366 NOTICE 0' APPEAL COM""JNWI~.UH O. 'INNIYLVANIA coun o. COMMON mAl f~OM JUDICIAL DIITlICY DI$TRICT JUSTICE JUDGMENT COMMON 'LlAI No. 97 - 5 366 C i vi 1 Term NOTICE OF APPEAL Nolie. I. gl_ lhot tho appellant ho. fii<ld In lho obov. Court of CO,"IIIon P1eo. on oppool from the judgm.nt r.nd.r.d by tho Diltrict Ju.tle. on tho dolo and In tho co.. mcHltionod below. -mHI<ll~-~-~~'~---;~ E I ~~;';y _u --- _H' - ]"'~<)l>~13j~~?;'M!m\TKLA I~ - --- ----. ~'}).:n-'---"-'-- ..' (Iii .--,- ~'"H" ....----.---.--.....--- ...._.....,.,.-e~o....-- 614 APPLE DRIVE MECHANICSDURG PA 17055 ~~9;--_m_[1\H~~A~';~'~~- VIRTGAYM '" MIKE SHEIB~':~",,;i}-_n_-__------- -ro=------ ~~ 11:--;~'-O~~~-~~O - n~______ rN'l~~~~'~~f_ -- ----- -- - Thl. bIoek will b. >ignod ONLY wh.n thl. nototlon i. r.quir.d under Pn R.C.P.J,P. Nn 1/ appellant was CLAIMANT (see PR. R.c.P.JP. No. 10088. ThI. Notk. of App.ol, whon received by tho Di.lrict Ju.tie., will operat. a. 0 1001 (6) in action before District Justice, he MUST SUPERSEDEAS to the judgment fat po.....ion In thl. COle. FILE A COMPLAINT within twenty (20) days after liIing his NOTICE of APPEAL. ----'-Slflf1.1twU--;'ij"Piij'hoorJtii;y,x -oL.p.iIV PRAECIPE TO ENTER RUI.ETO FILE C:OMPI.AiNTAND-itUUTO FILE (This section 01 form to be used ONLY whon appollant was DEFENDANT (soo Pa. HCPJP No, 1001(7) In action boloro District JustiCo. IF NOT USED, dotnch Irom copy 01 notlco 01 appeal to bo SOlVed upon appel/Of))_ PRAECIPE, To ""'thonotory En,", rule upon ___---'!'. AT I~N 11,_ V I 1~_'1'2J\.X~~__ _ ______________u_ u _m_ ,oppell..(.), to Iii. a eomplolnlln thIt appoaI Nfl/IX' 01 a~l'kJl>( ~ I (Common PIeo. No. 97 -5366 C~~~lm_Term ____I within twenty (20) doy. oft.r ....vic. of ,ule or .uffwt t,y 01 ~ of nan~ . ,/:,,r "'.) Sl{11Otrre of ~.." Of hilt aNclmily 0I1Q1W1f RULEI To TATIANA VIRTGAYM , oppell..(.). NNoo 01 jJpp011oe( 8) (1) You oro notified thot 0 rule I. h.....by ""t...d upon you to ~I. 0 complaint in this oppeol within twenty (201 day. of tor tho clcft 01 ,",vice 01 thl. rule upon you by pOI""",1 ...vlc. or by certified or regl.t.....d moil. (2) ij you do not ~Ie a complaint within thl. tlmo, 0 JUDGMENT OF NON PROS WILL BE ENTERED AGAINST YOU. (3) Tho dale 01 ....vlc. 01 thl. rule il ...vle. wo. by mail I. tho dole 01 moil Dato: Sept. 30'.19 97. AOPC Jl:i!.64 r:~ If) t(~ ~ 7, \,', m hl~ , ~ .. ., 1. rr> ~,~~.i ,oJ . } :~', r- .... ~;!, (\, ,.I:,.!. ~ g il" -, ,. ~f. r"';;:l o,:'/'I '-- I.(") "', ~ ~~ tJ: I: r.'.. 11(,' I ~ ~ ,:' ~..1 , ! l~. ~ I'; "t. f- ::1 - CJ Cf'l U 1-6~' uo IIJldlfl uo,IIIWWOO AV'4 J"OWO jO '/IIJ IJ/"lU UlM 1I~"P"jll IUOI/M fllOloq ,1/01110 jO .mlIUe,S \ ! I I I -6~ ' ~O AVO SIHJ. 3~ 3\10~38 0381\10SanS aNY (03~\lI~~V) N\lOMS 0\OJ04 p040811S IdlOOOJ S,J9pUaS '1I8W (POJ9\s,60J) (POUIIJOO) Aq 0 OOIMOS ISUOSJod Aq 0 -6~ ' UO p08S0Jpp8 88M 0ln\l041 W04M 01 (1)98110dd8 041 uodn 180ddYI0 eolloN O^oq& 0418~'AusdwOOO.IU'&ldwOO S Oll~ 019\n\l041 P8^J8SIl841 J841JnI pu. 0 '018J04 PO'lOSllSldlOOOJ s,jopuos 'lIsW (poJo\6,80J) (POIllljoO) Aq 0 00!^J06 ISU06J9d Aq U 6~ ' UO' ---(OUJsu) 'OOlloddS 941 uodn pU8 '01.U84 p8401118IdIOO8J , .,JOpUOS '1!8W (POJOIS,80J) (po,mJOo) Aq 0 00lM061SUOSJod Aq 0 '-6~ . (80/M8'jO 8,.pI uo u'OJ.'I1 po\su8160P 001l6nr \OI"6!0 041 uodn' -____ON 8881d UOWWOO 'IS8d,hIIO 801l0N 84110 Adoo 8 0 p8nJ8S IIS41 WJIU8 JO J88MI Aq8J8,! I ';l 'UI1JlI'O 'JmIU~IS '\ " J' ..~ Y'N'I^UtNNI.UO IU''''. , . !"'~ (...oq o/QsOl/dds ~O~40 /s8dds /0 oal/ou "'II 81i1f11 !Ill ,V SA va (0\) N3l N/Hl/M 031/:1 39 .LSnI'/ 80/M81l0 IPpff "~"!":':i~} .1NIV1dWOO 311:1 0.1 31n~ ONV 1V3ddV :10 301.10N :10 30lMliI :10 :100114'7;/; ., (~ ,~. i!' r J' "",...V:',tl,Lt , .... RONALD E. KLAIR I. _... 507 N. YORK ST, I" , MECHANICSBURG, PA . """"" . ~',' "', " '. .' tl . ;, '. i' ,-, \ .' , ,\.~' ,',. t,r...,.;,.J (717,766.4575 ".' 17055-0000 .. ,,' _ :.~' I C"'" ,', . ." , , -'. '.~41~'..1 ':'r.'~'r."~',.t.. " .'1'. t,', 'f.'...,' /".'.....~'. ""',I , . . , I I it ~. ~ ' l' "'I 1,\ ! r i : I' . -COMMONWEALTH OF PENNSYLVANIA COUNTY OF: CUMBERLAND . ""'1,1 D. No 09 -3-05 NOTICE OF JUDGMEN:t/TRANSCRIPT PLAINTIFF CIVIL CASE. . /'U.Mf and~" rvIRTGA'iM, TA'rIANA. -, 54 E.M~IN STREET MECHANICSBURG, PA 17055 L ~ D.lNlmt .~ va. MIKE SHEIBLEY 614 APPLE DRIVE MECHANICSBURG, PA 17055 DEFENDANT: NA.... "'''DON'' rsHEIBLEY, MIKE , , 614 APPLE' DRIVE ,." MECHANICSBURG, PA 17055 L Docket No,: CV-0000150-97 Date Flied: 6/17/97 ~ -, THIS IS TO NOTIFY YOU THAT: Judgment: FOR' PLAINTIFF ~ Judgment was entered for: (Name) VTRTGAYM. TATTANA ~ Judgment was entered against: (Name) SHEIBI.EY. MIKE In the amount of $ 5 .R5R.00 on: (Dete of Judgment) 9/02/97 o Damages will be assessed on: (Date & Time) o This case dlsmlssad without prejudice. Amount of Judgment JUdgmeni Cosll Inlerest on Judgment Attorney Fees $ 5.750.00 $ 108.00 $ -:00 $ ,00 $ 5,858,00 TOTAL o Levy Is stayed for __ days or 0 generally stayed. o Objection to levy has been ftled and heerlng will be held: , , ... ..;..,;;....- .~...:::.' .: Date: Place: Time: ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF .JUDGMENT BY !'IUNO A NOTICI OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS,'OivIL DIVIIION. YOU "";"$7 . COPY OF ''IS NOn;' 0: ~oa"~N':R'" "'R~7-R N"cmcao.~".~ Date t.. cz:.. 3 . ; j' ,Dil.lriql '/UIlkle " '~,' \ '. I o'~797s Is a true and correct copy of the?r 5td ~ottheedlng~ COnlalnln~~"~Ud\'l";ent.' '. "./ D Ie ~ _.- -.. ' .... trlctJu ,,_.' a - . ~ I ..,.a I""W II.' '<.,":::,,' i, 'r~~' --::: '. "''"''OIt".~., My commission expires ftrst Monday of January, 2002 SEAL ..,...... AOPC31H7 I,',i if: Lf) t.' (T; -- , ;:!.: .. ~- , ~~; N "~.., -.( (,J"-" -- ::~:.:~ I.. .';.. ..., L..-'.. ~~~ <~ ,:;,_l;" r,. "':f - L;. ,...; .I... rE~!1 ej ihiJ , ~c 'J.) l..; VI >." , ~ 'r- a O'l , " ... " ", " " " " , i', ,'; I ,. , , " Ii " ., " , " , 'I , j !. ", " " , , " , ;,'1 COMMONWIALlH O. PlNNIYLYAHIA coun 0' CClMMON 'LlAI NOTlCI OF APPIAL 'WM JUDICIAL DI"IICf DISTRICT JUSTICI JUDGMINT COMMON 'LlAI No. 97 - 5:1 fi6 Ci viI Term NOTICE 0' APPEAL Natk. I. g1",," thot tho. appellant hot llled In the 000" Courl of Common PI.a. an app.al from 'h. judgm.n' r.ndor.d by th. OI.,rleI Ju.tlco on the doN and In the co.. mentionod bolo.... 1ro!rUAml1AI<I-....---- -.--- ..-----.-.---.-.-..-.-...----.--------- IHKE :iHIUfJLt,Y ~N"-~-"--'---"----'-'''- .-.--.-.------ 014 APPI.E lHllVG 1\m1jflJjilMINI-' oo-..-... -.. .. 09/02/'-)7 =m------ - Cil;' . MI';CIIJ\N H'::.; lJU ,w -. . ['"~?~']'~(~lfW,I(lfbT~ LA I t{ .----- -- ,- ~~_. "&lAnn.-.-_.--.- III' COOl ~A 170~~ -- [N rHi e.;.U""Nlr~liiif,ill (OnhIndIPJ 1:1\'l'II\NA Vlt{l'GAYn '" MII\e; :.iHEIlILJ:::Y -. ---- .---oo..- ]II6NAIOlfOf,iW'UANrOin.n'2.w<1---.----- ~: i:~~l=~ l~_~._:..-_ ________oo..l_ _ ~ f!t-~~ ~ ___ TI1I. block will be "gned ONLY when thi. notation i. roqulrod uoo.. Po. R.CP.JP. No. 1/ appellant was CLA/MANT (see Pa. R.C.P.J.P, No. 10088. ThI. Nark. 01 App.ol, whon rocoi,.d by lho Dhtrlct Ju.tie<, will oporat. a. a 1001 (6) In action before District Justice, he MUST SUPERSEDEAS to lhe judglTllll1t r", po.....IOI1 in Ihi. ca.o. F/LE A CaMPI. A/NT within twenty (20) days alter filmg hiS NOTICE 01 APPEAL. .- ---s,jji1i-llij;o - r]f7;'oth.-;'i"riliy --i),- DI~,)jJ;v PRAiCIPETO ENTEit-itULE TO FiLE COMPLAINT AND Ru'Li1'o FILE (This seetlon ollorm 10 be used ONLY when appelllll)l was DEFENDANT (see Pa. nCPJp No. 100117) In acllon beloro DISllicl Juslico, IF NOT USED, detach Irom c<VJY 01 1I0tico 01 Ilppoal to be sOlVod LJpon appellee). PRAECIPE. To Prothonotary Enter rul. upon _.___ '1' A'I' I 1l,:iQ..Y..Hl.:!:i!.81J'_Ln Mt/flI101 ,IW,//t'('f:>) n __ _ .__.__..m.._____ ,oppo.ll..(.), to fil. 0 complaint In thl. oppeoI (Common PIeo. No. 97 -5366__<::_~':'!1_!-=-::111_____) within twenty (20) day. aft., .",vico. of rule Of~UI'" try 01 judgment of non prelL 1ti ,/ 'Af '/1)1/ -__ ... _...1'-.. SIl1''latu/rJ 01 ~llant 01 hiS attumf?Y 01 ~ RULE. To TA'l'IANA VIK~UAYM Nmlf1 0' affJfJlhm(s) , opp.II..(.). (1) You ore notified thot a rule i. h...by "",.,.d upon you to fil. 0 complaint I" thi. app.al within lwenty (20) day. alt... the doN of _vic. 01 this rule upon you by p.n,,"ol..,vk. '" by co.,tlR.d Of rogl.ter.d mail. (2) ~ you do not file a complaint wilhin thl. timo., a JUDGMENT OF NON PROS WILL BE ENTERED AGAINST YOU. (3) The dotw of letvk. 01 thl. ,ule if ..,vico. was by mall i.,he dote 01 moil ,,41 )MA~~' / . . $Iptue 01 ~ 001.: Sept. 30'.19 97. N:>PC J I:,HM >: If) ',- l- l.l~, ,,,,; ~.~ l~~ .. '5 .oJ~ au ~.. ~ N , .:',:" (")'. ;.: .:''-1, 11'1 ll~ , I .' '~- , 9' {~~ ( , .;;;J . :! ( ~t,l. (.-; '(l.t . I, :,". [i'l' , n., 'li.t.I . , ~J,l :I:.D. r,.: VI d tJ r- <1' '--eL' UO IIUldxo UO,IIIIUWOO A:~ "HJ/1I0 JO -/IIJ .p"w "M IWlPII/IIIUOI/NlII/()laq /'/:]11/0 jO .Jnj.ulJIS IU"II' 10 'JnI'UtJ/S -6~ ' -~o ^\lo SIHl 3V'l ~~O~30'03el~osens oN\I (o3V'll:lI~~\I) N~OMS 'Ola;a4 pa4001l0 Idlaoa, G"apua. 'flOW (POJOIG,60J) (paIlIlJao) ~q 0 aOl"O. 10UOG,ad ~q Q -51 ' uo pa..a,ppo .OM o,n~ 041 W04MollI)aafladdua41 uodn ,uadd\llo aOlloN a^oqo 94ISu,'<u.dwoooe lUIO,dwoO e O,,~ 01 oln~ 041 pe^Jo. I 1041 J041JOj pu~ 0 'OlaJ04 pa400lle Id,aoaJ ..lapual '"OW (paJolsI6a'l (pallll,ao) ~q 0 OOI^,aG,ouo.Jad ~q U 61 . uo '- (~w.u) 'aafladdo a41 uodn pu~ 'OlaJ"4 P040ulluld'''o''J ..Jopuas 'I!OW lpaJalllSal) (pallluao) ~q O' "01"0. lOuosJad ~q 0 '--61 ' 1.01"al/o .'.P) uo u,a,a41 Palou6,sap oo"lnr 10lJISIO 041 uodn ' . ON G.ald u'OWWOO ',uadd\llo aOlloN a4110 ,1doo e 0 p"^JaG 11.41 WJIIIO JO JO.MG ,1qaJ04 I :.1I^Yal~~Y II , ~O AJ.NnOIl VIN't^'AINNid ~O HJ.1V./ANOIIWOIl (.aKOo ./oool/ado ~o.4:J '/O.dd% 901/0U 94/ 6IJ!fII H31i~ SA 110(01) N31 NIH11M 0311i 3E11SnW 60!"8' /0 /ooJd "41) .1NIY1dWOO 311:1 Ol 31nIJ aNY 1Y3ddY :10 30ll0N :10 30IM'3S:l0 :lOO"d "I, ; loW ~ ' . "QMMONWEALTH OF PENNSYLVANIA COUNTY OF: CUMBERLAND !MQD. NI) 09-3-05 NOTICE OF JUDGMENI!TRANSCRIPT CIVIL CASE. PLAINTIFF. NAMflrKlADOI.-:ftIJ fSHEIBLEY, MIKE. .., 614 APpLE DRIVE . MECHANICSBURG, PA 17055 L ~ OJNI,ne ttQn RONALD E, KLAIR _... 507 N, YORK ST, MECHANICSBURG, PA \ '. " . t' \ c~,':","::.,.'r~i (717J766-4575 17055-0000 ",. ',: 1 .~.\. " ',' " .., '!J ", .' .. 't I" l., . 'r '.~."" ',.:1\ ,", .' 1-,:-,: ".:(""" "ATTORNEY FOR" PLAINTIFF r. MICHAEL A, SCHERER, ESQUIRE 17 WEST SOUTH STREET CARLISLE, PA 17013 va. NAMI IIlllA0URI611 ~IRTGAYM, TATIANA 1411 ,BRADLEY, COURT PRINCETON, NJ 08540 L , , OEF~NOANT: , " "," ~ Docket No.: CV-OOOO 150-9 7 Date Flied: 7/23/97 CROSS COMPLAINT 001 THIS IS T9 NOTIFY YOU TI1AT: , FOR.I. PLAINTIFF . Jud\lment: ~. [i] ,.' Judgment was entered tor: (Name) SHF.TRY.F.Y. MIKF. [i] Judgment was entered against: (Name) VIRTGAYM. TATIANA 1 ~ 100,' J: t 'f: , In the amount 01 $ D Damages will be assessed on: 110.00 on: (Date 01 Judgment) 9/02/97 (Date & Time) D This case dismissed without prejUdice. Amount 01 Judgment $ 110.00 Judgment Costs $ .00 Interest on Judgment $ .00 Attorney Fees $ .00 TOTAL $ 110.00 '" D l.e~ II ltayed lor _ days or D generally stayed. . "'. .. I, D, Objection tple"Y has been ftle.,1 ~nd hllarln,g ~II ~e he.ld: ".,., ) ., ...,.' Date: Place: Time: ,~~ I,~ I~ ~ ';\ t ~' I i. ,.:', , ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 OAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS,,~IVIL DIVISION. YOU MUST INCLUOE A COPY OF THIS NOTICE OF JUDGMENTfTRANSCRIPT FORM WI1:~.YOUR NOTICE OF APPEAL. .' iI"~ ' (, "/ Date,c-' ,.- - .. "~ -.~ ) / , District JUltice II' I certi1y thet this ~a true and correct cop~, Olth~cord 01 the procoedlngs containing th~ judgme"rll. Date <- \ ./ <.... ') . _ . , , ,DIstrict JUltice , My commission expl,es ftllt Monday 01 January, 2002 SEAL' ""'" !lOPC 311l-Q7 .: '. I; t, ;, , , " ?;: I.f) -- -. \,,; I,~,; i..' ,~ It'.' 1-';- , I f1.1!:-" I- , .-,; j'J"! ., l~~': ,~ !;, I.~;I ';l::.i ( '. \ .'e'} f~J ; c) '1' (',; in .' f.l. I _, ~_ ,. " ',ILLI lJ.",1 ~~ I,'?n_ I "i 1.1, r-- Q C7l 0 , I . I, , I " I I '1 ,I' ~; '" l,:: ., r', .. CO",._/, I Llt~i t~ fLj (.) ':\. :-r..: '. J ~.r (, ....: J. '. l'l,. <->' I";, "" ,. -" "I"'" )r' " .. ~ fir N " . "', u:' ;:., , ..II, L...., ~:!'~ I "- - d .') ,- ,. C1' '" e ! ~ ; ~ i ~ ! ~ . ~ ~ ~ ~ ~ " ., ... . ... , . ,&,q" k;;i;':!I,:;,:~:,':;:;+I':\',:i :, "",\,'1, I;MAUTHOMM' )~;~~!,t':':i'\:')-r--<l--"';", ',' ~r~\c!"_l,,:,',_^~IYAT_LAW'i ,I, 'i'" '~WT~INSmE'r ':; ',"'~ICS8UII,IJ.PAI71II& l:c"',',.,,_:,;'. ." .' . . l . I ;;,ql7J,"'..-o, J'AX(1I7)..,.,.,. n::;r.,':: ' '.\ 11, . . 1-: ;" \ . " . ..' \ , .,..... , , "l " " l r( . , , I' , I \ I , .....t.. :..,...., ~.-":~.!':""- r""';' .~.....'7::.~ aqreement with the Defendant for the Defendant to make certain repairs to her cello, 7, The Defendant ~greed to make the requested repairs and quoted a price to the Plaintiff for the costs of repairs in the amount of $3,000,00, COUNT I BREACH OF CONTRACT 8. Paragraphs 1 through 7 are incorporated herein as if set forth at length. 9, In October 1995 the Plaintiff gave possession of her cello to the Defendant for the purpose of the Defendant making the repairs, 10. The Defendant had advised the Plaintiff that he would make the repairs in a prompt fashion, 11. On or about the same date that the Plaintiff delivered her cello to the Defendant for the purpose of making repairs the Defendant provided to Plaintiff a cello which the Defendant had made so that the Plaintiff could continue to provide music lessons to her students while the Defendant was making repairs, l2, Although there were some discussions as to whether Plaintiff was going to purchase the cello which had been made by the Defendant there was never a completed Agreement of Sale of this cello to the plaintiff, 13. Between October 1995 and January 1997 the Plaintiff paid to the Defendant a total of $3,750.00. 14. The Defendant failed to make repairs to the Plaintiff's cello as he had agreed to do in October 1995, 15. In January 1997 the Plaintiff contacted the Defendant and requested that he return her cello to her along with the $3,750,00 since he had failed to make the repairs that he had previously agreed to make. l6, In addition, Plaintiff had returned the cello which the Defendant had built and had given to her back in October 1995 and the Defendant accepted the return of that cello, l7, Finally, in April 1997, the Defendant provided to Plaintiff an invoice for repairs to her cello which was the first invoice that the Plaintiff had received since providing Defendant her celio in October 1995, 18, The invoice provided to the Plaintiff by the Defendant was for repairs and tax in the amount of $7,409,40. 19. The amount set forth in the Defendant's invoice of April ll, 1997 far exceeds the agreed-upon cost of repairs and in fact may exceed the value of the instrument itself. 20. Plaintiff has made numerous demands for the return of her cello and the return of the $3,750.00 which she paid to the Defendant, but to date Defendant has refused to return either the cello or her funds to her. WH~REFORE, Plaintiff prays that this Honorable Court will rule in plaintiff's favor and direct the Defendant to return the Plaintiff's cello and the $3,750.00 which Plaintiff has previously paid to Defendant, plus costs and attorney's fees as the law may allow, COUNT II BREACH OF AGREEMENT 21. Paragraphs 1 through 20 are incorporated herein as if set forth at length. 22. In 1996 the Plaintiff and the Defendant entered into a separate agreement whereby the Plaintiff would market Defendant's cellos to her students, 23. The Defendant agreed that for each cello the Plaintiff was able to sell for the Defendant the Defendant would give her a commission of $2,000.00, 24. On August 3, 1996, one of the Plaintiff's students, at Plaintiff's recommendat,ion, purchased a cello and bow from the Defendant. 25. On August 25, 1996, again at the recommendation of the Plaintiff, another of her students purchased a cello and bow from the Defendant. 26. Under the terms of the agreement the Defendant was to pay Plaintiff $2,000.00 for each of the cellos which her students purchased. 27, To date, the Defendant has not paid any commissions to the plaintiff for these two sales. WHEREFORE, Plaintiff prays this Honorable Court will enter judgment in favor of the Plaintiff and against the Defendant in the amount of $4,000.00 plus costs and interest as the law may allow. COUNT III REpLEVIN 28. Paragraphs 1 through 27 are incorporated herein as if set forth at length, 29. The Defendant obtained possession of the Plaintiff's cello in July 1995 for the purpose of making repairs to the cello, 30. The Defendant did not make the repairs as of January 1997 and the Plaintiff requested the return of her cello at that time. 31, The Defendant remains in possession of the cello and refuses to return same to the Plaintiff, 32. The continued retention of the Plaintiff's cello is unlawful and the Plaintiff is entitled to the return of her cello. WHEREFORE, Plaintiff prays this Honorable Court will enter an Order directing the Defendant to return the cello to Plaintiff 6. The cello Shelbley agreed to sell Vlrtgaym was made by Shelbley In 1994 and was modeled after Matteo Goffrlller on Venice 1700. 7. The cello Shelbley sold Vlrtgaym was part of a quartet which received the highest award for tone at the 1994 Violin Society of America International Violin making Competition, Oaklend, California In November, 1994. 8. The sale price for the cello was $17,500.00. 9. The terms of the sale were that Virtgaym would put $2,000,00 down and Shelbley would finance $15,500.00. Virtgaym was to pay the balance by making $250.00 per month for 62 months. 10. Vlrtgaym payed only a portion of the money owed towards the cello, despite repeated efforts by Sheibley to collect the balance owed. 11. Sheibley was eventually forced to repossess the cello in January, 1997, 12. Vlrtgaym had use of Sheibley's cello from September, 1995 until January, 1997, and he Is entitled to fair rental value during that lime period. 13. Fair rental value of Shelbley's cello is $250.00 per month. 14. Upon Shelbley's repossession of the cello, Sheibley was forced to make repairs to the cello totaling $1,540.00, WHEREFORE, Sheibley demands judgment against Virtgaym in the amount of $3,790.00 plus interest and costs. COUNT II SHEIBLEY'S REPAIR OF VIRTGAY~'$ ~1iIJ.Q 15. Paragraphs four through fourteen are incorporated herein by reference. ~ I verify that the statements made In the foregoing Complaint are true and , correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. ~ 4904, relallng to unsworn falsification to authorllles. DATED: -1 0 I ~ II q1 I ,. , " " , " Ii' " " I' I' ' q %) l;: f' I' t.JJ.. I I" II: ; c,j {'I:: I.," ..it iJ,. i 10. U I' I '>,. l<, i (j ; " 'I' "l , , i I. "'J , \ ~'~- 'C..) . t.. ) t::' i.) en 0< l>l ...:l p. . i>< . :;.:E-< ::E: ~ ~..: . i>< i>< 0< OH l>l.... C!l +l e- O tJ ~ ...:I.... e- l': Z UQ ~ l>: III H ::- H'" H'O ..: "" ~...:I f>l+l . :> l': H :J:: l': > QI P. o ...:Ii>< Cf)'" 0<.... ::c Cf) Eo< l>:~ III :;.: QI 0 f>l ... O<Q tJ ~ ~f>l c.: P. H o P. H E-< UtJ ::E: 0< E-< l>l "" I%: E- O :;.: ... ::E: l>: l>l E-<3: ..: ...:1...:1 HI >Z HO tJH e- 'lJtJ 'IJ< C"l lIl...:l IH 1'> O>H tJ o Z '" ~ ~ ~ ~ ~ ~ I ~ ~ ~ ~ 5' ~ S ~ ::: tJJ o ~ " ;',.. I, I,', .. . .. 1".'1 , . .'~\ . " " " " ~ l- E:;; - 1-" .. ';g,.." 'J.l~.," - , p' _.11 n. ,,~ 0'-'" ..-.f ~4 (..J:'r.. :'~~ :! ' "'- ~)8 '~i , . -.,. '~J bj" N 1~- ., t~ll.1 ~- :.il~ 1" .'"; 1-;"10- ~. - '7;; I.f. en i3 u '" , , I. ,,' .,' " , ' ., , ' r IN TIlE COURT OF CO~~ON PLiAS OF MICHAEL SHEIBLEY, I CmlBERLAND COUNTY, PENNSYLVANIA Plaintiff I ,I NO, 97-5366 CIVIL 1997 1 v. 1 r TATIANA VIRTGAYM, 1 Defendant 1 1 RULE 1312-1, The Petitilln for Appointment of Arbitrators shall be .ubllt3nt~all)l in the following form: PETt':'ION FOR APPOINTHENT OF ARBITRATORS TO THE KONORABLE, THE JUDGES OF SAID COURT: R. Mark Thomas , counsel for ~he lI>XK~/defendant in the above action (or actions), respectfully represents that: 1, The above-captioned accion (or actions) is (are) ~t issue. 2. The claim of the plaintiff in the Action is.C.25.000.00 . TIle counterclaim of the defendant in the actic.n i+ 25, 000. 00 . The following attorneys are interested in the case(s) as counselor ore other- wise disqualified to sit as arbicrators: R. Mark Thomas, Esq. and Michael A. Scher~~,Esq. WHEREFORE, your pecicioner prays your Honorable Court to appoint three (3) arbitrators to whom the cnse shall be submitted. ( , . ~C;;llY .Jil:'2.IDJt:ed, . ~r~ttlAR .' 11_ .0 ;RD: OF COURT V' AND NOW,~ 2--- , 19~, in considemtion of the I foregoing patition, (,ltl Ll~'\l' ~o_, Esq..'<~ 1l tl !/cc.a4...J~(('~ If ~-, Q - ltaq., and f .-f1t1.' ;{:'eL.).:lll ,Esq., are appointed arbitrators in tha I above-captioned action (or actions) as prayed for. By tlte OF 11 ~IUi"~ :?J.TICr: i' ~('d')T/nY 98 wn~:J i\:i S' :~4 cur,." , ' .,..,...lji I"I',NI.': ,. (' J ""'V ~\, \ /' , '" .' I ~ j r .11_"'1',,;/\ " i , -,., ~, ~ ..0 ... '~ ~ Lf'; 1:;. 7; Ie:: .. ~-'') 8 ,- 'tIC - ......."'1", ~:.. ~!.- \;-~.~ ~~~ ~' .~ ;?' u... ,,-' ~:, In, t.'~; :;j :J ' cL. <. "l,~j1 I ' t' - I." I .'.i.... \11 :.-! ~~' rr 2 u:. LI.' .- "hD 'v P",' dl~ k ocr. ;~ '6 cJ:) CI' I , " " I " '( , , . I, ! 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"11,',1'_1,' -, J.~""~h~"';"~."j _'", ,'f:,li\tl,\i k~:'hJt;!;;\\~_~,J"~;:"-~.IIl,,\1~ >;.~ii~-;}' - 'J! ,;~\;;:I::~~'rJ~~:':;; i;i.fll\~,~~,_;; ~;~, ' 1;~;} "I ,,~t;';''-iH\_'-~~{~1\:, ~- ,. ,-, -,' - - - ..~,T,\I . .w . . " , 1'>1 , - " I , ~I., .. , " .1\' , \ , !~ ,', ',' .' " 1':'-' I, i \ \ .' ,;'~-"~"~~'It\-' purpose of having Plaintiff make repairs to her cello and Plaintiff had given Defendant a cello to use while hers was un~er repair. 6. Denied. Defendant is without sufficient information or belief following reasonable investigation to either affirm or deny this allegation and therefore same is denied and strict proof thereof demanded at time of trial. 7. Denied. It is denied that Plaintiff ever sold the Defendant a cello, or that there was an Agreement to purchase the cello, or in the alternative, if there was an Agreement to purchase the cello that Agreement was mutually rescinded by the parties. With regard to the rest of the alle~ation in Paragraph 7 Defendant is without sufficient information or belief following reasonable investigation to either affirm or deny that allegation and therefore same is denied. 8. Denied. Defendant is without sufficient information following reasonable investigation to either affirm or deny this allegation and therefore same is denied and strict proof therefore demanded at time of trial. 9. Denied. It is denied that there were terms of the sale agreed upon between the parties. By way of further Answer, Defendant gave Plaintiff $2,000.00 down toward the repair of her cello and agreed to make payments as the cost of repairs would exceed $2,000.00. 10. Denied. It is denied that Defendant owes any money for the cello referred to by the Plaintiff. 11. Denied. The cello was not repossessed by the Plaintiff, but rather there was a mutual recision following a misunderstanding as to whether Defendant intended to purchase Plaintiff's cello. By way of further Answer, Defendant returned the cello to Plaintiff. 12. Denied. This allegation is a conclusion of law to which no responsive pleading is required. To the extent t.hat this allegation is not a conclusion of law the Defendant denies that Plaintiff is entitled to any rental value during the time that the cello was in her possession. 13. Denied. Defendant is without sufficient information or belief following reasonable investigation to either affirm or deny this allegation and therefore same is denied and strict proof thereof demanded at time of trial. 14. Denied. There was nothing wrong with the cello that Defendant returned to Plaintiff and any repairs to the cello claimed by the Plaintiff were unnecessary. By way of further Answer, Defendant is without sufficient information or belief to affirm this allegation and therefore same is denied and strict proof thereof demanded at time of trial. COUNTERCIAIM COUNT I - BREACH OF CONTRACT 28. Paragraphs 1 through 27 are incorporated herein as if set forth at length. 29. In October 1995 the Defendant gave possession of her cello to the Plaintiff for the purpose of the Plaintiff making the repairs. 30. The Plaintiff had advised the Defendant that he would make the repairs in a prompt fashion. 31. On or about the same date that the Defendant delivered her cello to the Plaintiff for the purpose of making repairs the Plaintiff provided to the Defendant a cello which the Plaintiff had made 50 that the Defendant could continue to provide music lessons to her students while the Plaintiff was making repairs to her cello. 32. Although there was some discussions as to whether Defendant was going to purchase the cello which had been made by the Plaintiff and which had been given to Defendant there was never a completed Agreement of Sale of this cello between the parties. 33. Between October 1995 and January 1997 the Defendant paid to the Plaintiff a total of $3,750.00. 34. The Plaintiff failed to make repairs to the Defendant's cello as he had agreed to do in October 1995. 35. In January 1997 the Defendant contacted the Plaintiff and requested that he return her cello to her along with the $3,750.00 since he had failed to make the repairs that he had previously agreed to make. 36. The Defendant also returned to the Plaintiff his cello which the Plainti f f had buil t and had given to her back in October 1995 and the Plaintiff accepted the return of that cello. 37. In April 1997, the Plaintiff provided to Defendant an invoice for repairs to Defendant's cello which was the first invoice that the Defendant had received since providing Plaintiff with her cello in October 1995. 38. The invoice provided to the Defendant by the Plaintiff was for repairs and tax in the amount of $7,409.40. 39. The amount set forth in the Plainti f f' 5 invoice of April 11, 1997 far exceeds the agreed-upon cost of repairs and in fact may exceed the value of the instrument itself. 40. Defendant has made numerous demands for the return of her cello and the return of the $3,750.00 which she paid to Plaintiff for repairs to be made to her cello, but to date Plaintiff has refused to return either the cello or her funds to her. WHEREFORE, Defendant prays that this Honorable Court will rule in Defendant's favor on this Counterclaim and direct the Plaintiff to return the Defendant's cello and the $3,750.00 which ( Defendant has previously paid to Plaintiff, plus costs and attorney's fees as the law may allow. COUNTERCLAIM COUNT II - BREACH OF AGREEMENT 41. Paragraphs 1 through 40 are incorporated herein as if set forth at length. 42. In 1996 the Defendant and the Plaintiff entered into a separate Agreement whereby the Defendant would market Plaintiff's cellos to her students. 43. The Plaintiff agreed that for each cello the Defendant was able to sell for the Plaintiff the Plaintiff would give her a commission of $1,000.00. 44. On August 3, 1996, one of the Defendant's students, at Defendant's recommendation, purchased a cello and bow from the Plaintiff. 45. On August 25, 1996, again at the recommendation of the Defendant, another of her students purchased a cello and bow from the Plaintiff. 46. Under the terms, of the Agreement the Plaintiff was to pay Defendant $1,000.00 for each of the cellos which her students purchased. 47. Despite Defendant's demands for her commissions for the sales the Plaintiff refused and continues to refuse to pay the agreed-upon commission to Defendant. .... -' t t,- l"" ...:-' , I .. ~. ! . - " C: Ill' , , () . .. " r.1 I.,., ~ I" \ ()~ r':~' ,[ , r' ...-..~ " ,.r (, ." " I " .0- , r I' t'-:' l' , .-;.11 , .' oi I 1-, " ., " , , , , ,lI I., r ! " (1 " ,'I r .. " , II' ,', , , BEfL Y. TO COUNTERCl,.~IM COUNT I.BREACH OF CONTRACT 28. No reply Is necessary. 29. Admitted. 30. Denied. Since the Defendant was purchasing the Plaintiff's new cello, Plaintiff indicated he would make the repairs In his spare lime and in a causal fashion. 31. Denied. Plaintiff sold Defendant a cello he had made a set forth in Count I of the Complaint. 32. Denied. Defendant agreed to purchase the cello the Plaintiff had made as set forth in Count I of the Complaint. 33. Admitted. 34. Denied. The Plaintiff has made substantial repairs to the Defendant's cello, however the Defendant has refused to pay the fair value of those repairs. 35. Admitted in part and denied in part. It is admitted that the Defendant requested the Plaintiff to return her cello and $3,750.00. Denied that Plaintiff failed to make the repairs that he agreed to make to Defendant's cello. 36. Denied. Plaintiff had to repossess the cello Defendant was purchasing from him. 37. Admitted. Plaintiff had not provided Defendant with an invoice prior to April, 1997, because he had not completed the repairs to the Defendant's cello. 38. Admitted. 39. Denied. The Plaintiff never quoted the Defendant an actual price for the repairs and the repair bill of April 11 , 1 ~97 exceeds the previously estimated repair amount because Plaintiff had given the Defendant a special price on the repairs because she was purchasing Plaintiffs cello. 40. Admitted. Plaintiff will not return Defendant's cello until she pays the repair bill of Plaintiff and reimburses Plaintiff for her use of Plaintiffs calla during the time she was to be purchasing it. WHEREFORE, Plaintiff respectfully requests that the Defendant's counterclaim be dismissed and Judgment be entered in Plaintiffs favor. REPLY TO COlJNTERCLAIM COUNT II-BREACH OF AGREEMENT 41. No reply is necessary. 42. Denied. Defendant attempted to negotiate a better price for the cello she was purchasing from Plaintiff, so she suggested she send her students to purchase instruments from the Plaintiff. Plaintiff agreed to reduce the sale price of the cello he sold to Defendant by $1,000,00 for each sale Plaintiff made to the students Defendant referred to him. 43. Denied. Plaintiff agreed that he would reduce the sale price of the cello he sold to Defendant by $1,000,00 for each sale Plaintiff made to the students Defendant referred to him, 44, Admitted, 45, At:lmitted. , , 46. Denied. Under the terms of the agreement, Plaintiff was to cradlt Defendant's account by $1,000.00 for the balance she owed Plaintiff for the purchase of the cello from Plaintiff. 47. Denied. Plaintiff credited Defendant's account for the sale of one cello to Defendant's student, but when Oefendant failed to pay on the cello she purchased as required, Plaintiff refused to continue to reduce her balance for students Defendant referred to Plaintiff. WHEREFORE, Plaintiff respectfully requests that the Defendant's counterclaim be dismissed and judgment be entered in Plaintiffs favor. REPLY TO COUNTERCLAIM COUNT III-REPLEVIN 46. No reply is necessary. 49. Admitted. 50. Denied. Plaintiff has made substantial repairs to Defendant's cello. 51. Admitted. Plaintiff refuses to return Defendant's cello to her until Defendant pays for the repairs Plaintiff made to the cello. 52. Denied. The Plaintiff has the right to maintain possession of the cello until the Defendant pays his repair bill. WHEREFORE, Plaintiff respectfully requests that the Defendant's counterclaim be dismissed and judgment be entered in Plaintiffs favor. cr: FI: for) GfHCr: I "" 1"I"(1'/rlY , - .1"11 (, f\ - I' ~ '/ '1 ,11 ,,: ..,:., Fh :1: I 9 ('l'" . "" Y .... ."j", " ','., (.,(o.-",it'Jl i-\":';\~,/,'(.\:'\n,lA ,L LAWOfflC1.5 O'BRIEN. BARIC. SCHERER 17 W~..,. ~~AH Sm;:er ~..,. ITLt tU \1" 3fkd C."RlI5lf, PENNIYl V^N1^ 1701,1 . . (ll(c! Illl I 11111' . , .. . ' . " .. ," ., f") 0 ~ _ i ~ ~ !;! ~ 9 I:lI \: 3 ~ i!i · is i! C'l Sl < VI ... e I m i ~ ~ ~ p '" t \,0 (-) ." II ~rri t" ";' 1]. '-. _ ~. j" \ ' "1"1 "0 , ',. ~ ~~:: ",'f! ,::> .Ie;; , '.;'~) 6'" ~ ' :r:.' .,-H sr8 :x ).. ..( ') ~ ,., .~, tlj (-"j 111 "' .. ... ~ - i - 't. x..~ '.0 :q -< ..... :'t' , ' ... MIClIAEL \V SIlEIDLEY \I I () I IN MAl( f R Sold to: Mrs. Ta..na Vlrtglym 1411 Bradley Court Princeton, NJ 08540 (808) 883- OeM REPAIR OF eEL 0 De on REPAIR RIB (upper, treble) 3 CRACKS 1) creck 0 corner (24mm) 2) crack from corner block 1000rd neck (55mm) 3) crack 0 upper portion near neck (45mm) REPAIR RIB (c-boul, Irebla) 2 CRACKS 1) crack Glower comar (53mm) 2) crack 0 upper corner (32mm) REPAIR RIB (lower,ITebla) 3 CRACKS 1) crack G corner (40mm) 2) crack from corner 10 endpln (68mm) 3) crick from corner to endpln (70mm) REPAIR RIB (upper, bees) 2 creek. 1)crlck from neck rool (114mm) 2)crack from upper corner elong lining CD back (103mm) REPAIR RIB (lower, ballS) 5 cracks CONTINUED ON PAGE 2 P.1 fllIIII. YtHoI For ftHolr /hum...1 A:l:s 61 ~ Applt On.. . Michanlcsburg, PA 170" , (717) 766.096~ Invoice Data: Invoice No: 04/111ll7 V871104 Unit PrIc Amount $80.00 $80.00 $80.00 $80.00 $80.00 $80.00 $80.00 $80.00 $80.00 $80.00 $80.00 $80.00 $80.00 $80.00 $100.00 $100.00 $150.00 $150.00 $150.00 $150.00 Subtotal Till Total ~ICHAEL W. SHEIBI,EY VIOLIN MAKER lold to: TlliIInl Vlrtglym Involcl Dllte: Invoice No: 11 t28I88 V81S21111 DlIC Jon Unit Prlc Amount 1 Cello beg, 041. $110.00 $110.00 "dellv.rtd by J. Butters 1112'''' To dill M hlVl recelvlcl no rorm or peymenl ror this Invoice. PLEASE REMIT IMMEDIATELY FINAL NOTlCEI .......1 To Totel $110.00 $1.10 $111.10 TIuJ,,1r YOM For YOIIr B",IIIa,' PLAINTIFF'S EXHIBIT 6HApplt Dr1vt. Mt"l<mIClbl<l&. PA 170"" (717) 766.0964 qIJ/q:f3 ;;(6 , . . .. ., " .1' ,,' ~ ~ <0 (, ~ <:! v:> '1"' "." ;:"1!: .-1 ~ ~ :/' r -I' '"'!', \~n (.? l:l},I,' ....::: ,:,;,~ il \ <,Ii-t I ',1 , \it) ~/,! :,. C~) ':'-{C) ~' \;;' l--'~ \, ..,., ;'i:t~ ~ .". ':C ..~ .~ . ~ '.'cl'.l - ~. '~'f..: .. ~ ..~; ,...,- :'l OJ , , ~ ~, '~ ;,'. I, Not..: II real property. supply six copies or description Including Improvements and an original and copy of effldavlt of ownership (PeR.C.P, No. 3129). If lengthy per,Spnally list, supply four copies of list, To Index writ, file separate praecipe with writ. .~ " o. . n ,,(1 " ~ -" ~. ~~ ~' 1'_; - '''I I III ~ , ,~ ',' II:?!! I ~ ..,..".'1, f-:-.J ..:J.: ' I . (,ii' '7 \; '0 l\S V\ "'~ f: I /))I~ ., ...., ('\ ~ ~ ~ lJ!. " '.'. ~ - . ,''''1;1 I.. I' f,:\ ~.r. ':,~~ ~ fJ , t r \ ,l-',C', ,0 . I ",',; ;(') - -'I , '~,-" 4-.~. .. ~ .... N -:::, ..0.'. .- , , ~ . t \ \'I , , " \ ,~ Jfo. ltJt ~ t ~' ~, ..-, INDEX 're WITNESSES FOR THE PLAINTIE'~ DIHECT CROSS REDIRECT ~OSS 1. Michael Sheibley 5 27 39 :2 . Johna BeWall 40 48 49 FOR THE DEFENDANT 1. Tatiana Virtgaym 50 65 ----------------------------------------- INDEX TO EXHIBITS FOR THE PLAINTIF~ IDENTIFIED ADMITTED 1. Copies of checks from 18 50 Tatiana Virtgaym 2. Invoice for repair to cello 25 50 3 . Invoice for cello bag 26 50 4 . Worksheet detailing claim 27 50 5. Letter written by W. Scott Stoner 74 78 ,FOR THE DEFENDANT 1. Invoice and statement for 30 79 purchase of cello ~ ,. .,.., 1 September 2, 1999 2 Carlisle, Pennsylvania 3 MR. SCHF;RER: This is the time and place for 4 the nonjury trial of Sheibley versus Virtgaym. We are 5 ready to call our first witness. 6 THE COURT: Are you ready? 7 MR. THOMAS: Ready, Your Honor. 8 THE COURT: Either party wish to make an 9 opening? 10 MR. SCHERER: If you believe it would be 11 helpful, Your Honor, I can tell you that essentially there 12 are two cellos involved in this case, one which Mr. 13 Sheibley manufactured in his shop in Mechanicsburg which he 14 is alleging he sold to the defendant, Miss Virtgaym, and 15 subsequently had to repossess. His case involves charges 16 for fair rental value and for fix up of that cello, when he 17 got it back. 18 There is a seconr:1 cello involved which Miss 19 Virtgaym had owned in which Mr. Sheibley asserts he was 20 fixing for her to sell to offset the sale price of the 21 cello which he manufa~tured. There's also a cello bag 22 involved, and essentially I believe that's -- Mr. Thomas 23 has a different version of that, but essentially that's 24 what's involved. 25 MR. THOMAS: Your Honor, my client is a 3 1- 1 Whereupon, 2 MICHAEL SHELBLEY, 3 having been duly ~worn, testified as followSI 4 DIRECT EXAMINATION AS ON QUALIFICATIONS 5 BY MR. SCHERER: 6 Q Will ypu state your name, please. 7 A Michael Sheibley. 8 Q And your address? 9 A 614 Apple Drive, Mechanicsburg, 10 Pennsylvania, 17055. 11 Q How are you employed? 12 A I'm self-employed. 13 Q What do you do? 14 A I make musical instruments, violins, violas, 15 cellos, some basses. I sell those .in a retail shop that ill 16 located at that address. 17 Q Do you also repair instruments? 18 A That's correct. 19 Q How large of a shop do you have in your 20 location on Apple Drive? 21 A The shop with the showroom and everything is 22 about 1,500 square feet. 23 Q How long have you been in business there? 24 A Since I returned to this country in -- well, 25 actually at that address in 1994, August of '94. 5 1 Q How did you learn your trade? 2 A I started when r was very young here in the 3 United States learning basically on my own. In 1989, I 4 moved to Germany and married into a family. My 5 father-in-law has won more international violin making 6 competitions than anyone in history, and I worked there for 7 between five and six years. 8 Q Which town or city in Germany did you reside 9 in? 10 A The town's called Bubenreuth 11 Q What's that near. 12 A Near Nuremberg. 13 Q Who are your clients? 14 A I deal with orchestral musicians, also 15 students, people looking for virtuoso and solo careers, and 16 I subsequently do a little bit of business with student 17 instruments also. 18 Q When you say students, what age are your 19 students that you work with? 20 A Between three and, I would say, college age. 21 Actually adult students also. You can't really say. 22 Q Where do your clients reside? 23 A Everywhere. The entire United States. I 24 pull a large amount of clients from the Philadelphia and 25 Washington -- Philadelphia and Washington. New York is 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 also a pretty big area for me. A large part of Florida seems to be quite lucrative for me. But anywhere from California to -- and also other parts of the world. I send my instruments to violin shops in the United States and also mostly Germany and Asia. Q Do you advertise in musical magazines that are circulated throughout the world? A Yes. Q Do you have a couple examples of your advertisements there A Yes. Q -- under that black book? Can you just tell the Court which magazines they are and show the Court your ad? A The first magazine I have here is The Strings Resource Guide. This one actually just came out this week. I take a full page color ad in that particular magazine with my awards listed and contact address. Q You can lay that next to you. What's the other magazine you have there? A It's The Strad magazine. This is the oldest publication for our trade. It goes back to 1897. This one happens to be June of 1999. It's the same ad. The magazine's a little bit larger, but it's basically the same ad. This magazine is printed and distributed from London, 7 1 briefly explain? 2 A Yeah, I start wi t.h the raw piece of wood. 3 It's cut by what we call the wood cutters or the wood 4 dealers in Germany who specialize in cutting musical 5 instruments particularly for the violin family, stringed 6 instruments. I go to Germany. This piece I just recently 7 brought back at the end of June, and there are two pieces 8 here actually. 9 Q Do you want to hold them up. 10 A A cello is drawn on here just roughly to 11 make sure that it's wide enough to get a cello on there, 12 but this is the way it would start. It would be joined in 13 the center, and then the arching is .ctually carved into 14 that shape, and then it's hollowed out afterwards, sort of 15 like you would make a bowl but not with machines. It's a 16 hand work. A bowl would be turned on a lathe and that's 17 this piece would be then the back of the cello, the side 18 that goes toward the player's body. 19 Q You can go ahead and put those down. Is it 20 a time consuming process? 21 A Yes, it takes a long time. It takes three 22 to four times longer to build a cello than a violin. 23 Violins it's by professional makers. The estimated rate is 24 about 240 to 280 hours for a violin. So three times that 25 would be 6 to 800 hours. 9 ,- 1 Q And you also repair these types of 2 instruments, correct? 3 A That's correct. 4 Q Cellos, violins, violas? 5 A That's right and basses. 6 Q ~s there any type of repair that you cannot 7 make to these instruments? 8 A No. I mean, some instruments don't warrant 9 being repaired, but anything can be done given the proper lO conditions. 11 MR. SCHERER: Your Honor, I would offer Mr. 12 Sheibley as an expert in the area of the manufacture and 13 repair of stringed instruments. 14 THE COURT: He may testify. 15 DIRECT EXAMINATION 16 BY MR. SCHERER: 17 Q Can you tell the Court how you became 18 acquainted with Miss Virtgaym? 19 A I met her at the Central Pennsylvania Suzuki 20 Institute at a summer institute at Elizabethtown College in 21 1995, the last week of July, the first week of August. 22 Q And what were you doing there? 23 A I'm invited each year as the resident by the 24 maker. I repair anything that may be damaged due to an 25 accident that occurs there or people who are just looking 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to make their instruments sound better. An instrument's not just an instrument. There are a lot of it's the sum of all of the parts that makes the sound of an instrument. So I do tonal improvements, just general maintenance, and I move practically my entire workshop. Q A lot of ybung students there with instruments? A They range, I would say, between 3 and 17, 18 years old. Q Some of the students A About 160 of them. Q Are the students sometimes looking to upgrade their instruments there? A Normally. Q And sometimes the students break each other's instruments and whatnot? A That occurred this year, yes. Q So it's kind of i marketing opportunity for you? A Yes, yes. Q What were your discussions with Miss Vi~tgaym in the summer of 1995 at the Suzuki Institute? A Well, she had brought a cello to me to look at and explained that she wasn't able to play the cello without having secondary sounds occur like buzzes and the 11 ~ 1 such, which are normalLy not associated with a properly 2 playing instrument. 3 Q That's her cello? 4 A She said it WIlS hers. 5 Q And tha t was an older cello? 6 A Well, relatively speaklng. I mean, older in 7 our field is 16th, 17th, 18th century. This.was a modern 8 cello from approxlmate1y the 1920's I would say. 9 Q So did you suggest anything 'to her regarding 10 her problems? 11 A Well, I certainly counseled her on what she 12 could do wi th that cello, but the prognosis wasn't really 13 good without getting involved quite substantially both 14 financially, well, time and material wise. 15 Q So what transpired between you and her? 16 A Well, when I go to Elizabethtown to the 17 institute, I also I have my workshop and all my parts and 18 things that I need to repair instruments, and then I have a 19 display of instruments which would be available for 20 purchase. 21 It's an excellent time because this is 22 really a higher caliber -- these are people that are there 23 because they like to play the violin and they are 24 ambitious -- it's their ambition for the most part. So I 25 had a cello there, and she played on it and she liked it 12 ,-" 1 very, very much. And then we started discussing the future 2 of her cello and that cello and -- 3 Q What was the origin of your cello'! 4 A 'rhe cello that I'm speaking of now? 5 Q There's the old cello which was her cello, 6 and let's call the other one a new cello which was the 7 cello that you had in your display there. 8 A This was the cello from the quartet from 9 Oakland in 1994 that won the tone prize. 10 Q It was a cello that you manufactured? 11 A That's correct. It's based on Matteo 12 Goffriller who lived and worked ill Venice around the turn 13 of the century into the beginning of the 18th century. 14 It's a small model famous cello such as YoYo Ma. Stephen 15 Kates, Janos Starker have all played on this type of cello. 16 The cello that I copied this actually was 17 the world record auction price for a stringed instrument in 18 1978 when our customer in Germany, Dr. Delp, had purchased 19 it from Sotheby's. This was the original. I make 20 forgeries, I should say, or counterfeits, exact replicas, 21 if you prefer, of orig.inal instruments. So that's -- 22 Q What it was. 23 A -- the reason for the explanation. 24 Q What was the agreement with Miss Virtgaym 25 that you reached on that occasion? 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A There really wasn't nn agreement that was reached on that occasion. She flimply showed interest in the cello. She didn't know what to do. She didn't -- she had the information as to -- a rough idua as to tha repair of the cello, and we discussed my career, my work, and she was interested in the cello that I had built. a Did you eventually reach an agreement with her? A Yes. a And when was that agreement reached? A The last week of September or first week of October the same year, 1995. a And where was it reached? A At my shop. a What was the agreement? A She had agreed to purchase the cello. I had agreed to excuse me, finance the cello at zero percent interest with $2,000.00 down, and then I wanted to actually finance it for $500.00 a month. But we negotiated a fee of $250.00 a month because she wasn't sure about her teaching career and how things were. a What was the sale price for the new cello? A The Suzuki students and teachers received a 30 percent discount from me. The regular price of the cello is $25,000.00. I sold the cello under the agreement 14 1 2 J 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ,.. of 30 percent less, which was $17,500.00. Q This meeting that you had with her at the end of September or beginning of October of '95 occurred where? A This was in my shop. Q Was anybody else present during any part of that meeting? A There were several meetings and -- Q I'm talking about that particular meeting. A The meeting where the decision was made to purchase the cello? Q Right. A Yes, Johna BeWall was present, and I can't remember whether it was -- I believe Q That's fine. Did you reduce the agreement to writing? A Excuse me? Q Was it a written agreement? A Well, it was a written agreement. I had written it on a piece of regular copying machine paper or typewriting paper in order to explain and to figure out myself exactly how long this financial obligation would incur. So basically the paper was used as a visual aid to understand the purchase, yes. Q You two didn't both sign that? 15 L 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ,.-., A o A signed it. We did, we di.d. Do you have that paper here today? Or she signed it. r'm not sure that I o Where is that paper now? A I have no idea. I didn't have a computer at that time, and my records were rather I just returned to the country from Europe, and I really wasn't organized or set up to do business. o Why were you willing to finance 50 much of this, the sale price, to Miss Virtgaym? A Well, because I had just recently returned, and she had explained that she had a large clientele which she taught in New Jersey, and strategically this was a very good area for me to have a cello. So I gave her the discount and financed it, which I normally don't do both, but it was important for. me to get another cello out there for people to see and I always have -- my thinking is that one sells two within a year. Q Did she also leave with you her old cello at that September '95 meeting? A That she did, yes. o And what was the plan regarding that cello? A She wanted to sell that cello, but it was 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 un saleable in the condition that it was. So Lt needed to be repaired. I explained to her that due to the nouveau of my business I don't sell instruments that are what I call in a train wreck type of condition. In order to make it a sellable cello, the minimum work required would be this, this, this, and this, and I gave her examples of the work and explained to her roughly what the cost would be. The work was so extensive that it's impossible to say exactly what it would have cost, but I then halfed the price. And our agreement was when the cello was repaired, and I could take as much time as I possibly needed to do it and apprentices were also permitted to work on the cello, when it was sold I would from the proceeds of the sale, I would receive my repair at this half price and I would also -- the profit, any profit obtained from the sale of that cello would go toward paying off the principal amount owed on the loan that I was financing for her. o For the new cello? A That's correct. o What was the half figure that you gave her? A It was 3 or 3,500 to 4,000. o Did Miss Virtgayrn take the new cello away from your shop? l7 1-, Q Of wh lch year? A 1996. Q What does the memo say? A It has the date 12/94 and 1/95. Q The second page of the exhibit? A It contains two other checks, and it looks Q amount? A February. Q A Q A 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 --- A Yes. a Do you agree that the total of all the checks that you've just testified to and the money orders were $3,750.007 A I do. Q And do you recall when approximately you last received any sort of payment from Miss Virtgaym on the new cell07 A I think one payment had come in late in the springtime, March or something, and then the next one wasn't until su~~er. There was a lapse between payments. So the last payment may have been June of '96. Q Please tell the Court what began to happen after June of '96. A I had contacted her as to the tardiness of the payments. Q And did she make arrangements to catch up7 A She said that she would get caught up. She had explained to me that there was a personal injury case or something like this which she had pending, and that she was about to receive a settlement where she was going to payoff the balance soon. Q Did that ever happen7 A Well, she didn't payoff the balance, and I don't know about the personal injury case. 20 1 Q Did :she begin to suggest ways that she could 2 become current on her obligation to you? 3 A She said, Mikey, I can send you students. 4 My students listen to me and can we work something out 5 there. I said we could work something out. I needed to 6 receive the payments timely and monthly as we agreed, but 7 that I would credit her $1,000.00 for each student that she 8 sent that resulted in a successful sale of a cello. 9 Q And 10 A Actually, i'm sorry, that's incorrect. I 11 told her that I would make it 250, then she negotiated to 12 $500.00, and after not getting a check and what have you, 13 she said can't you give me a thousand and I did. 14 Q At some point you were forced to repossess 15 this cello, the new cello, is that right? 16 A I made a conscious decision to repossess the 17 cello. Nobody forced me. 18 Q When did that occur? 19 A It was a long time after that. I can't say 20 exactly. 21 Q How did that come about? How did you make 22 arrangements to take back your new cello? 23 A Well, I was alone at home one day. I was 24 living with my girlfriend at the time and her son, and they 25 were visiting friends of theirs in the Poconos, and I 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 2: 23 24 25 c_, called Miss Virtgaym to find out dbout the payments. She said I just can't do it. My lease came to an end on my car and I had to pay -- I had to take a loan to pay for that, and there was one other thing that she mentioned. Oh, she had started teaching full-tima and lost her medical insurance at the bank that she was working at. So she was working part-time at the bank ilnd had had to start paying for her own medical insurance 50 she could no longer afford it. So I told her in that case, I mean, this has been long enough, I really need to get that cello back. Q So you sent an agent to get the cello? A Well, at first we had made -- we had had conversations that she was supposed to come, then she couldn't come and she couldn't come, and then she just didn't show up one time. Then I called her again on this weekend when Audrey was in the Poconos. The conversations that I'm talking about, actually what I remember now, transpired before the weekend of the repossession if that's what you want to call it and -- THE COURT: Let me ask you something. Did you get your cello back? Did you get your cello back? THE WITNESS: 'fes, sir. THE COURT: Do you know about when? 22 ,,-., 1 THE WITNESS: r f I can look through my 2 paperwork, I would have a record of it, but r can't say 3 exactly when it was. r can't even think of the season. 4 THE COURT: Did she voluntarily relinquish 5 it to you? 6 THE WITNESS: Yes. 7 THE COURT: Next question. 8 BY MR. SCHERER: 9 Q Did you arrange to send her another cello? 10 A Yeah. This was part of the in order to 11 get my cello back, I had to supply her with a cello because 12 she had nothing to teach on. We 11, I didn I t have to but I 13 agreed to. So the cheapest cello I had had in stock was 14 about 6,800, $7,000.00. 15 r had told her she would have to pay the COD 16 on the shipping. She needed to have it on Tuesday. This 17 had transpired on a weekend 50 I couldn't contact Federal 18 Express until Monday which meant that it required next day 19 service. The shipping with insurance was $160.00 COD, 20 which I had explained to her on the telephone on a third 21 party -- on a three party call with Audrey, Chris on the 22 other line. 23 Actually I was very furious at this time, 24 and Audrey was mediating the entire situation from a 25 telephone in the Poconos where she then agreed -- Audrey 23 ,,-., 1 agreed to drive an hour toward New Jersey, and Miss 2 Virtgaym drove 45 minuteR the other way, and they met and 3 exchanged the cello. The next day r sent the cello COD, 4 and delivery was refused. 5 Q This is a third cello you sent COD to Miss 6 Virtgaym and it was refused? 7 A That's correct. 8 MR. SCHERER: 'four lIonor, may I .1lpproach the 9 witness and show him the pleadings that he ver.ified in 10 order to refresh his memory -- II THE COURT: Sure. 12 MR. SCHERER: -- on the return of his cello? 13 BY MR. SCHERER: 14 Q See if that refreshes your recollection. 15 A It seems to be accurate, but the cello would 16 have been repossessed in January or February. 17 Q Of which year? 18 A That was 1997. 19 Q What would the fair rental value of your new 20 cello be in Miss Virtgaym's possession month by month? 21 A Normally it's -- at that time we don't call 22 it a rental, we call it a lease, and normally the 23 instrument should pay for itself within three years. So it 24 would be the undiscounted purchase price of the instrument 25 divided by 36. 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~. o Are you agreeing for purposes of this case that it's 250 per month? A That's a normally it would be more, but I would agree to that for these purposes. (Whereupon, Plaintiff's Exhibit No.2 was marked for identification.) BY MR. SCHERER: o I want to show you what's been marked as Plaintiff's Exhibit No.2 which is a three page document. Could you identify that, please. A This is an invoic~ for the repair up to the point in which this cello had been repaired, the one that Miss Virtgaym brought to me as her original possession. This is an itemized repair. Normally I don't get quite this involved, but she had requested this. o And what is the total for that invoice? A $7,409.40 U.S. o What is the condition of her cello now, the old cello? A It's 90 percent repaired and quite dusty. THE COURT: You still have it? THE WITNESS: Yes, sir, Your Honor, and it -- I'm sorry. I replaced the top on it which is also on this bill. The original top is laying on the table there, and so whether you are talking about the instrument itself 25 1 2 3 4 5 6 ., 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 or the instrument and its old parts, I mean, the old parts are in their same condition. BY MR. SCHERER: Q This is the old table to the cello? A That's correct. Q Did you sell her cello back at one point as well ? A Yes, I agreed to sell her cello back. One of her students delivered it to her. It wasn't a personal purchase where she was in front of me purchasing it, but she asked if I would please send her that with a bill with a customer of hers and mine. (Whereupon, Plaintiff's Exhibit No.3 was marked for identification.) BY MR. SCHERER: Q I want to show you what's been marked as Plaintiff's Exhibi: No.3. Can you identify that for the Court, please? A This is the invoice for the cello bag at my cost. Q Has she paid you for the cello bag? A No, unless I received a check today that I'm not aware of. THE COURT: How much? THE WITNESS: It's $116.60 WiLh the tax. 26 - - 1 The invoice also states that J. Buttars was the one who had 2 delivered it. This is one of the students and customers of 3 Miss Virtgaym and myself. 4 BY MR. SCHERER: 5 Q Finally I'm gOing to show you Plaintiff's 6 Exhibit No.4. 7 (Whereupon, Plaintiff's Exhibit No.4 8 was marked for identification.) 9 BY MR. SCHERER: 10 Q And I'm going to tell you that it is a 11 worksheet that you and I prepared detailing your claim in 12 this case. Will you look at that, please. 13 A Yes. 14 Q Is that accurate? 15 A It's accurate. 16 MR. SCHERER: Thank you. That's all I have. 17 THE COURT: Mr. Thomas. 18 MR. THOMAS: Thank you, Your Honor. 19 CROSS EXAMINATION 20 BY MR. THOMAS: 21 Q Mr. Sheibley, I believe when you first 22 started testifying that you had returned to the United 23 States from Germany in what year? 24 A 1993. 25 Q And you started this business at this 27 ----....-"..- ,- I" 1 2 3 4 5 6 ., 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ,- location in Mechanicsburg in 1994? A That's correct. I'm sorry -- yeah, at that location, yes. o And then in 1995 you appeared at the Suzuki Music Conference at Elizabethtown College? A Yes, the Central Pennsylvania Stringed Institute. o And that is the first time that you met Tatiana Virtgaym, is that right? A Yes, sir. o The testimony that JOU gave indicated that she had told you she had sound problems with her cello. A Not only sound problems but playing problems also. o Were you aware that she had, in fact, played that cello at the music conference at that time? A I was aware that she had it with her, and she did mention to me that she was using that cello currently. o Now -- A I don't believe she was playing it though because her leg was in a cast. o Her leg was in a cast? A It makes it very difficult to play the cello. 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~. Q All right. Now, at that time there was no agreement entered between you and her with respect to either your repair of her cello or her purchase of a new cello from you, is that correct? A I believe that is correct. Q Now, you say that you met with her again several months later? A Yes. Q And at that time you entered into this agreement with her to purchase a new cello from you? A There was a meeting where that did transpire, yes. Q And that meeting was in late September or early October of 1995? A That meeting -~ there were several meetings whether they be personal or per telephone. Actually the first meetings could have occurred in August or early September. This was a slightly longer process. Q Anyway, you had never known Tatiana Virtgaym prior to seeing her at Elizabethtown College? A Not that I'm aware of. Q And you entered into this agreement with her, and, in fact, you gave her possession of what you have characterized as a $25,000.00 cello? A Yes. 29 1 Q And did she give you any money at the time 2 that you gave her possession of the cello? 3 A No. 4 Q And you didn't prepare a written agreement 5 that sets fOloth the terms that; she was going to pay you for 6 this cello at that time, did you? 7 A Yes, I did. 8 Q You did. What happened to that written 9 agreement? 10 A I can't personally say what happened to that 11 agreement. As I explained earlier, I was very disorganized 12 and just new in the business, had just moved into that 13 location in August, had no computer, and my record keeping 14 is much better today than it was at that point. 15 Q Well, do you recall an earlier exhibit that 16 you presented at a previous hearing dated October 1, 19957 17 A I recall presenting exhibits at that, yes. 18 (Whereupon, Defendant's Exhibit No. 1 19 was marked for identification.) 20 BY MR. THOMAS: 21 Q Mr. Sheibley, I want to show you what I've 22 just had marked as Defendant's Exhibit No.1. Can you 23 identify that document? 24 A Yes. This is basically an invoice and 25 statement for the purchase of that -- of the c~llo that I , 30 '; I' 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 made. Q And that's dated October 1, 1995, is it not? A That's correct. Q And you would have prepared that about October 1, 1995, is that correct? A With this computer program, yes, or as late -- we used this program I know until 1996. Q Now, you also have -- on that document dated October 1, 1995, you have some entries dated for 1997. How did the 1997 entries get on that document? A I believe you're mistaken, counsel. I don't see anything for 1997. If it's there, forgive me. Q Well, take a look here. It says, cello repossessed in February 1997, does it not? A Yes, it does say that. Maybe I'm not understanding your question or the statement. Q All right. When you were going to do the repair on Miss Virtgaym's cello, part of that repair required the purchase of a new table, did it not? A Well, it required the making of a new table which requires the purchase of the materials, yes. Q And on your exhibit you put a price for the furnishing, purchasing, and making of that new table at $3,200.00? A And everything surrounding the making of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A That's the first invoice that I prepared, yes. Q And you had had possession of her cello since September or October of '95; is that true? A Roughly. Q And I believe part of your agreement with her was that you would repair her cello, sell her cello, and then you would credit her with the excess proceeds toward the purchase of ~our new cello? A That's correct. Q Yet as of April 1997 you hadn't made the repairs to her cello as yet, is that correct? A The repairs were over 90 percent finished, and I was receiving -- after the period of time when the cello was repossessed, she had called me several times and said, well, if you are going to fix that cello for me to play please then do this, this, and this which was not what we had talked about originally; and then when I explained to her the price she asked me to furnish her an invoice. Q Well, in fact, you had demanded the return of the cello you had given to her back in January of '97, is that correct? A No, sir, I had demanded the return or asked her to return the cello that I had sold to her in 1995. I didn't give it to her. 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q In your word'l tholt you hold r.l<Jld her.. You had demanded her to roturtl tholt/ In (ilct, you got It back in January of '97? A Or February. Q And when you got that back, she started making a lot of noise with you about getting he~ cello repaired because she noeded a cello, did she not? A That's correct, she did mention needing a cello. Q And tho fLrst time you ever gave her any statement concerning tho EopaiEs that you made to that cello was in Aprii of '91, correct? A Yeah, tho first written statement that I had given her, yes. Q And she demanded of you to return that cello to her at that time? A After the -- after I had written this statement? Q Urn-hum. A She had asked to have the cello back, yes. o And you refused to return her cello unless she paid the amount on that statement, is that correct? A Yes. THE COURT: Is that Exhibit 2? THE WITNESS: This is Exhibit 2, Your Honor, 34 1 yes. 2 THE COURT: Okay. 3 BY MR. THOMAS: 4 Q And how much is the bill on Exhibit 2? 5 A Including the Pennsylvania sales tax, it's 6 $7,409.40 U.S. 7 Q Now, you didn't give her credit on that bill 8 for the two strike that. You testified that you entered 9 into an agreement with her that if she sold your cellos to 10 her students through you that she would get S1,000.00 11 commission, right? 12 A That she would lecoive $1,000.00 credit 13 toward the purchase of the cello that she was -- had 14 entered into the agreement on, yes, sir, and this is an 15 invoice for the repair which is a separate thing. 16 Q I previously showed you Defendant's Exhibit 17 No.1.. Do you have any other invoices for the sale of that 18 cello other than that defendant's exhibit? 19 A Could you reask me again, please? 20 Q That appears to be an invoice for the sale 21 of the cello to Ms. Virtgaym. 22 A Yes. 23 Q Do you have any other invoices other than 24 that one right there? 25 A No. This was the invoice and the statement 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ,....., which I had obviously prepared GO that she would realize the tardiness of her payments. Q And that includes a statement that you repossess that cello in February of '97? A That was added to the invoice later. Q Nowhere in that invoice do you give her credit for the $2,000.00 for the sales of your cellos to her students, is that correct? A I don't see credit for that, no, I don't. Q So you didn't give her credit on the invoice and you didn't give her credit on the'repair bill, you didn't give her any credit for that $2,000.00, is that right? A There may have been a time where I actually did credit it. We may have available an invoice where it is credited, but as far as what we'ge seen, yes, sir, you're absolutely correct in your statement. Q Now THE COURT: You did sell, what, two cellos to her students? THE WITNESS: Yes. THE COURT: Okay. THE WITNESS: Two cellos. BY MR. THOMAS: Q Now, also at the time that you demanded that 36 -- 1 Tatiana return your cello to you, you had a buyer for that 2 cello in Massachusetts, did you not? 3 A I had a proposed buyer. A cello is not 4 something you just ordel: in the nlail, but, yeR, and I sel1t 5 the .instrument late>J: the>n to Boston, yes. 6 Q And how much did you Rell it for? 7 A That instrument I returned and -- there was 8 some things that had transpired. That was a competition 9 winning instrument. I had two of the four instruments 10 remaining. The cello and one violin were gone. 11 A very good customer of mine in Lancaster 12 traded the violin back in which gave me the possibility to 13 keep the entire quartet which I sold it due to my new and 14 financial circumstances at the time and now I have the 15 option. 16 I actually own that cello again, and people 17 have wanted to buy that cello numerous times in just the 18 last couple of weeks, and I explained that it is no longer 19 for sale. 20 THE COURT: You lost me a little bit. Did 21 you sell it and then get it back again? 22 THE WITNESS: I Bent it to a shop in Boston, 23 and I got that cello back and traded it for -- it was there 24 on consignment. It didn't sell. I sent another one and 25 sold another one. :n 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ,.-... THE COURT: So it actually never sold even though you sent it on consignment? THE WITNESS: At that time it didn't sell, yes. THE COURT: You still have me confused. THE WITNESS: I'm sorry. I did not sell the cello. THE COURT: Then I understand what you are saying then. You actually never sold the cello,you got back from the defendant? ~HE WITNESS: That is correct. THE COURT: Okay. BY MR. THOMAS: Q You attempted to sell it, is that correct? A I had it for 30 days in Boston with the attempt to sell it, yes. Q And now you have possession of it and it's not for sale? A That's correct. Q We've looked ~t an invoice with regard to the sale of this cello. We've looked at an invoice with regard to repairs to the cello. Do you have any invoices showing that you leased this cello to Tatiana Virtgaym? A Of course not. ! never leased the cello to her' . 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ,- , MI'. SCI'!lSHE:R: Thank YOll. That's all I have. TfIE COURT: Any rect'oss " MR. THOMIIS: No, Your Honor. TilE COURT: The q roup of instruments that is now the part of and YOll oci9inil11y made how lIIany instrum~nts? THE WITNESS: Four. THE COURT: Two violins7 THE WITNESS: Two violins, a viola, and the cello. THE COURT: I understand. Yo~ may step down. I will take a ten minute break. Reconvene a t ten after. (Whereupon, a brief recess was taken.) MR. SCHERER: My next witness is Johna BeWall, Your Honor. Whereupon, JO,YNA BEWALL, having been duly sworn, testified as follows: DIRECT EXAMINATION BY MR. SCHERER: Q Will you state your name, please. A My name is Johna BeWall. Q Will you spell your last name for the record, please. 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 '-, - A B-e-capita1-W-a-l-l. Q And how old are you, Johna? A I'm 22. Q And what is your address? A My address is 536 West College Avenue, Apartment 17, State College, PA. Q Are you employed? A Yes, I have a teaching assistantship at Penn State University in the physics department. Q Are you also a student the~e? A Yes. Q Undergraduate or graduate? A Graduate student. Q And what program are you enrolled in? A Physics for my Ph.D. from there. Q Do you play the cello? A Yes. Q How long have you been playing it? A, I've been playing since I was three or four years old. Q Are you acquainted with Michael Sheibley? A Yes. Q And how are you acquainted with him? A Through -- I was int~rested in the cellos he was making when he came back from Germany. My mother is a 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 violin teacher. She knew -- I'm not exactly sure what extent 'lIhell shtl met him, but I met Mike through my mother and was interested in his cellos. Q Are you acquainted with Tatiana Virtgaym? A 'fes. Q Can you tell the Court how you are acquainted with her? A I met her -- my mother, let me say, runs the Central Pennsylvania Suzuki Institute, and I met Tatiana in 1995 at the institute. That particular year I was working for Mike but -- so I saw -- I met Tatiana through Mike when she was interested in the cello. Q Were you ever in Mike and Tatiana's company at the Suzuki Institute in the summer of '95? A 'fes, I was. Q And can you just relate to the Court what it was that you observed or heard? A I think just pretty much observed her interest in the cello. Q Which cello, do you know? A That's the brown Goffriller cello, the first cello Mike made when he came back from Germany, the first, like, top class cello that he made. And I was also interested in this cello 50 that's why, I mean, I was -- I knew that Tatiana was also interested. 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ Q You were interested in the same cello she was interested in? A That's right, yes. Q Were there actually two cellos that Mr. Sheibley had at that time that he would have offered for sale? A When I met Mike, he wanted people to play this cello that he made because a cello only begins to sound sweet after it's played. That's why the old cellos sound so nice. He lent it to me and I played it. This was January of '95 or so through the spring. Then I told Mike I would like to own one of his instruments. So we set up a deal where I would work in his shop over the summer to help payoff on an instrument. And he agreed to make another -- he only had this one cello in stock so he said he was going to start making another cello that summer also. So the second cello was completed in maybe August or so of '95. Q And was there another occasion when you were in the company of Miss Virtgaym and Mr. Sheibley after the Suzuki Institute? A Yes. We arranged a meeting between the three of us to decide on who gets which cello to try to come. up with a mutual agreement on which cello belongs to 43 1 Q And your purpose was to decide which cello 2 you would purchase, is that right? 3 A That's right. 4 Q And what was your understanding of what Miss 5 Virtgaym was doing that ddY? 6 A There was no question in my mind that she 7 was also purchasing one of the cellos. I say this because 8 if I was the only purchaser I would have made the decision 9 on my own, which cello I wanted, and so the fact that it 10 was a meeting between the two of us to decide made me think 11 that she was also buying one of the cellos. 12 Q Was it determined in your presence who would 13 get which cello? 14 A Yes. I was playing -- I played both cellos 15 for her while she listened to the tone with her eyes closed 16 so she didn't know which cello by looks, she just knew by 17 the tone, and then I played the cello I owned, the second 18 cello, I played that one. Then I played the first cello, 19 and she said that sounds better, that's the one I want. 20 Q Do you know whether she, in fact, carried 21 that cello away that day? 22 A No, I don't because I was -- I had to go to 23 my father's wedding, and I had to actually play my cello in 24 the wedding so I was kind of running out the door. I left 25 with my cello that day. 45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .~, Q Did you sign a long detailed agreement with Mr. Sheib1ey about the payment terms of your cello? A No. No, I never signed anything from Mike for any pUl'chase that I made from him or from working for him for two summers. Q Do you have any idea what the arrangements or the agreement was between Miss Virtgaym and Mr. Sheibley through firsthand knowledge? A Can you repeat that? Q Did you hear them reach an agreement in your presence regarding her purchase of the cello? A No, although MR. THOMAS: Well, I'm going to object to anythi~g further than that. MR. SCHERER: That's all I wanted to know, Your Honor. THE COURT: You answered no. THE WITNESS: Okay. BY MR. SCHERER: Q Did you have an opportunity to be in Miss Virtgaym's presence at the Suzuki Institute the fOllowing year in the summer of 1996? A Yes. Q Can you explain what happened there? A Well, when we decided on the -- which cello 46 ~ 1 REDIRECT EXAMINATION 2 BY MR. SCHERER: 3 Q Let me just ask you, these cellos that you 4 are talking about that you were deciding between with Miss 5 Virtgaym, can you characterize the quality of these cellos? 6 A They are exceptional instruments. I was 7 playing on a student cello, which is not a carved cello. 8 It's made by bending the wood, bending plywood instead of 9 carving the wood. There's no comparison between these 10 cellos and the cello I was playing on. 11 This was the cello -- the first cello 12 that Mike let me borrow to play was by far the best 13 instl'ument I've ever played. Let me just say that the two 14 cellos are the same instrument. They are made from the 15 same tree. They are the same model, and that they are 16 pretty much equal in terms of quality. 17 Q They all have a different tone though, is 18 that right? 19 A Yeah, they have very distinctive tones. 20 They are very different sounding but similar in appearance. 21 MR. SCHERER: Thank you. That's all I have. 22 MR. THOMAS: No recross. 23 THE COURT: You may step down. You are 24 excused. 25 MR. 3CHER8R: We would move for the 49 1 teller, and thon I teach privately cello. 2 Q You teach c(~llo'l 3 A I teach cello at home, and then I teach ,1t 4 the summers at Rutger's prep school in New Jersey. 5 Q How long hav<1 you bei!n playing the cello? 6 A About 38 -- 32 years. 7 Q How many cellos have you owned during that 8 32 year period? 9 A Well, I had the little cellos which it was 10 given by school when I was in school, and then when I was 11 fifteen years old my father gave it to me this cello. And 12 since then lawn the cello for a very long time until the 13 time I give it to Mr. Sheibley to repair. 14 Q So the cello that you gave to him to repair 15 was a gift to you from your father when you were l5? 16 A Yes. 17 Q And was that the main cello or the only 18 cello that you played from age 15 up until the time you 19 gave it to Mr. Sheibley? 20 A Yes. 21 Q What was the condition of your cello in 1995 22 when you first met Mr. Sheibley? 23 A My cello was in very it was a fair 24 condition. It was really -- the cello needed to have 25 repairs, but I was still playing on the cello. At the time 51 1 I was playing and in the Westminster Conservatory Orchestra 2 at Princeton. I was teaching my students. I perform on 3 the cello. 4 Yes, it was a little bit scary to play on it 5 because the top table needed really needed repair, but 6 the cello was in good condition to be played, and it 7 sounded really good at the time. So I was using to the 8 last day until I give it to Mr. Sheibley to repair. 9 Q In fact, did you play in 1995 at this 10 institute at Elizabethtown College? 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes, of course I was. Q What instrument did you play there? A I played my instrument. Q Your cello? A My cello. Q Did you have a cast on your leg? A Yes, I had the cast on my leg until my knee, the lower part, and I could play. Q You were still able to play your cello even with a cast on? A Yeah, um-hum. Q How is it that you came to meet Mr. Sheibley? A Well, this was my first time I was at the Suzuki Institute, and I really enjoyed it a lot. And r was 52 I always lntere:lttld to qo lllto till!';" ,qhops dnd just to see 2 and look at the music, look i.lt, you know, the strings and 3 some other things. 4 So Mr. Sheibley was very friendly person, 5 and he was very kind and nice and I start talking to him, 6 so we met. We start talk.Lng about the instruments, and I 7 said that I had a very old instrument and it's very dear to 8 me. I really would like -- it needs to have repairs. 9 So I ask him if he does this kind of work. 10 Actually, before I never thought about it to repair my 11 cello. I don't know how that it just come up to my mind 12 because he was there and he had so many different 13 instruments there. 14 Q When you went there, you are saying you were l~ not in the market to have your cello repaired? 16 A Not at the time. It just happened when I 17 met Mr. Sheibley. It just -- 18 Q Well, did you have discussions with him 19 regarding him repairing your cello? 20 A Yes. And actually he said that how can you 21 play on this cello because it's really in a very bad 22 condi tion. So I said, I know, but I wasn't thinking until 23 now. I mean, well, I wasn't really thinking to repair the 24 cello. 25 Then he just said, well, it needs to be 53 1 repaired, this cello, so we start talking about it. And 2 then I said, Do you do this kind of work? He says, Yes, I 3 can do it. So I got very excited about it that finally the 4 person that I can trust, you know, it kind of -- I trusted 5 him very much. He was the first person in this country 6 that I met and I could talk about the instrument. 7 It was a little bit funny my colleagues in 8 Princeton they said why did you have to leave a cello in 9 Mechanicsburg when we would have you meet somebody here in 10 Princeton and, you know, you could have r~paired the cello 11 there. But I trusted him so much and I just, you know -- 12 Q Did you enter into an agreement with him 13 while you were at the college with regard to repairing your 14 cello? 15 A Well, I was asking him about, well, how much 16 it would cost me. So he said that it would be in between 17 2,500 and 3,000. So I said, okay, well, let me think about 18 it and we'll talk about it, and I'll go home and I'll call 19 you. 20 Q And after this -- how long did this 21 institute thing last? 22 A Just for the week. 23 Q When you had left to go home from that 24 institute, at that time had you and Mr. Sheibley entered 25 into an agreement for repairs of your cello? 54 1 A Not right away. 2 Q Did you l~ter have conversations with him? 3 A Yes, we werc talking on the phone, and 4 actually I was talking the most the first thing what I was 5 talking about him. I was talking about him because he was 6 asking me if I have anybody to purchase the cellos, that 7 somebody would be interested from my students. 8 So actually that's how it started that I 9 start calling him more often, and I had two people who was 10 interested to buy the cellos. And I said, well, then I 11 came to the point that, you know, I was going to come back 12 again to the Suzuki Institute the next year, the upcoming 13 year. So I said, well, I asked him if he can change the 14 table in my cello and repair, do the repair on my cello. 15 Q And did you meet with him to discuss repairs 16 of your cello? 17 A Well, in the meantime when I was in the 18 Suzuki training he show to me his cello, his other cello. 19 Q That's the cello that he's now saying that 20 you agreed to buy? 21 A Yes. 22 Q So you had seen that cello at the institute? 23 A I had seen that before, yes, and he started 24 giving me ideas that he can repair my cello. And, see, he 25 was in I don't know. Maybe this is going to sound a 55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 little bit crazy, but I felt thot somebody really wants me to buy the cello. The cello is wonderful. I loved it. It was r~ally a beautiful cello. Q Right now I'm just asking you about the repairs to your old cello. A Okay. Q Did you meet with him to discuss repairs of your old cello? A Yes, in September. Q Where did you m~et? A Or it was October. In his shop. Q And did he agree at that time or was there any agreement with regard to repairing your cello? A Well, we were just talking about it, and we talked about the price and that was it. Q Was there an agreement that he was going to do it, make the repairs? A Well, he said that he's going to do the repair on my cello, yes. Q Was there an agreement with regard to how much the repairs would cost? A He told me in between 2,500 and 3,000. Q And was there any understanding as to when you were to pay for these repairs? A Well, he didn't tell me exactly when I have 56 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to pay him, but he Baid that he nends money to purchase the -- he had to send it to Germany, and he had to get a table from Germany becau8e that's the cello -- that's the materials where is he qetting from. Q Well, he introduced some exhib!~s, and I believe the exhibit is up here. It's identified as Plaintiff's Exhibit No.1. Would you take a look at that exhibit, please. A Yes, Q Those checks, were they written by you? A Yes. Q Now, that shows payments over a period of time with the first payment being in October, and then almost monthly payments up through the next six months. A Yes. Q Why did you make payments to him in that fashion? A Well, he wanted $2,000.00 right away., That's what he said he needed to purchase the materials to repair my cello to get the table, and so I sent it to him the way I could send it because I had no money at the time. I was on disability with my leg so I lost a lot of students at that time. And then I just paid him -- I said that that's the way I can pay it. I can't afford to pay more. 57 ,,,...... 1 And when r reached to the point that I paid more than he 2 told me my repair -- the cost of the repair's going to cost 3 so I just stopped paying because I couldn't pay anymore. 4 Q All right. Now, in the meantime if you're a 5 cello teacher, how were you teaching cello lessons? Did 6 you have a cello? 7 A Well, I was teaching on my cello, and then 8 he give it to me his cello. 9 Q When you say he gave you his cello, which 10 cello are you talking about? 11 A The cello that he said that I said that I'm 12 going to buy, that I agreed to buy. 13 Q Did you agree to buy that cello? 14 A No, I never agreed to buy the cello. 15 Q Did you have any discussions with him 16 regarding your purchase of that cello? 17 A I told him -- he desperately needed to sell 18 the cello. He had so many things to do on his own. He 19 needed to buy materials and he needed money. And I told 20 him right away that I need just to repair my cello. That's 21 the only thing what I was asking him to do, but he saw that 22 I really like the cello and he give it to me to play. 23 Well, I understand he needs to continue his 24 business and he needs to show it to the people the 25 instruments. I would love to do that for him, but I told 58 r' 1 him right away I can't a fford to buy the cello. I told him 2 right away from the first, from the beginning, that I just 3 wanted to repair my cello, I wanted my cello back. That's 4 all what I want. 5 Q Did you ever sign any agreement with him 6 that you agreed to purchase this cello? 7 A No, I never sign anything. We didn't have 8 any agreements. 9 Q Well, how long did you hold onto his cello? 10 A Well, I had his cello until -- well, I 11 didn't know how long I'm going to have to have his cello. 12 1 mean, I had no idea. 13 Q Well, how long did you have it? 14 A A little bit over a year. 15 Q And why did you return his cello to him? 16 A Because at the same time I was calling -- I 17 kept calling him and asking him if he started to repair my 18 cello. He never started. He never did. And then I called 19 him and I said that I cannot pay you more money, and I had 20 to get my cello back, please return my cello back. 21 He got very mad, and he said, yes, I need to 22 get my cello back because I have somebody who wants to buy 23 the cello, which was the person in Massachusetts in Boston, 24 and that's why I had to return the cello. 25 Actually I was going to return the cello J9 1 anyway, and I didn't like it to keep the cello, 50mebody's 2 cello which is not mine. And I never felt that the cello 3 is mine because I never agreed, to buy it. I felt that I 4 just, you know, using and showing my students and in the 5 same time I was thinking I can get him business, more 6 students. 7 Q Well, in fact, did you obtain any business 8 for Mr. Sheibley as a result of using his cello? 9 A Yes, I sent him two students. In fact, I 10 even came up with one of my students. I was doing as much 11 as I could just to help him out. I had two more, actually, 12 but I was asking them not to go to buy the instruments from 13 him. 14 Q Was there ever any agreement between you and 15 Mr. Sheibley with regard to if any students or anybody 16 purchased one of his cellos as a result of your efforts? 17 A Well, it's interesting, you know, until he 18 told me I didn't even know that commission money exist. I 19 had no idea. He told me that there was a commission, and I 20 was really -- I never heard about it ever before. 21 Q What did he tell you? 22 A So he said if you are going to help me to 23 sell these two cellos because that was the first cellos 24 that he made, and then you are going to get the commission 25 money from me. And I ask him what is this so he explain it 60 1 to me, and he offered me hy himself a thousand dollars on 2 each instrument. That was his offer. I never ask anything 3 from him. 4 Q And did he ever pay you n thousand dollars 5 for each instrument? 6 A No. 7 Q How many of your students purchased 8 instruments from him? 9 A Two. 10 Q When you returned his cello to him, did he 11 return your cello to you? 12 A No. 13 Q Did you talk to him about getting back your 14 cello? 15 A Oh, yes. When we were talking -- when I was 16 talking to him and his girlfriend -- 17 THE COURT: Is this before or after you 18 returned his cello to him, this discussion? 19 THE WITNESS: It was when I had to return 20 his cello to him. 21 THE COURT: Go ahead. 22 THE WITNESS: That day he actually said he's 23 going to come up to Philadelphia and I don't have to drive, 24 that, well, we are going to meet someplace. So I said 25 okay. Then he called me. That was my birthday son. I 61 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 remember very well. It wns January 22nd. Sunday. It wall on He called me in the morning, and he said I can't -- I can't be there, my car broke down but -- I forgot her name, his girlfriend, she would be nearby so she can meet you. You can give it to her the cello. So I agreed to meet and give it to her the celio. So I give it to her the cello. BY MR. THOMAS: Q Did you have any discussion about your cello at that time? A At that time I told him that -- I was asking him in what condition is my cello. He said that he's repairing my cello, and I told him right away that please just don't do anything, just leave it the way it is, whatever it is, if it's apart or whatever it is just give it to me back the way it is. I don't want anything, just give me my back cello. I never ask hIm to finish the repairs. I just wanted to get my cello back. Q Now, prior to that day -- that's the day that you actually returned the cello to him. Prior to that day, had you had any conversations with him concerning the repairs of your cello? A Well, the only thing what I was talking to him, and that was only what I was asking him to do it, and 62 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 we talked about it and the price was tor thilt. It's to change the table on my cello. Q You gave him -- when did you give him your cello? A It was in September. I can't say exactly. It was the end of September or the beginning of October, the first week of October '95. Q So you gave him your cello about the same time that you took his cello back to your home? A It was the same day. Q Okay. Now, between that time and January 22nd, 1997, when you returned his cello, 'did you have any conversations with him with regard to the status of your cello, the state of repairs? A Oh, yeah. I called him every month just to, you know, to ask what's going on and when are you going to start, and he never had time. He always had some things to do, some trips to Europe, and he always been busy. So he never started my cello to repair it. He never did. I call him. I was in contact with him all the time. Q Did he ever offer to return your cello to you? A No. Q Did he send you an invoice charging you for the repair of your cello? 63 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A He send that invoico In -- that was in '97 in A?ril after I came up here and I wanted -- I came up here and I said, Just give me the cello the way it is. Tell me how much I have to pay you, and I'll pay you the differnnce, and give me my cello back. I'rn going to go home. So he refused to give me my cello back and he well, he closed the door, and then he call the p~lice and, of course, I had to call the police. Q This was prior to your receiving that? A Yes. Q My question to you is, did you ever receive any bill from him prior to that bill there? A Never, never any bill, no statements, nothing at all. It was no papers at all. I'm just what I'm saying that because that's the bill, or whatever it is, I got it after that when I wanted to get my cello by myself. He sended this after I saw him. Q Did you pay that amount on that bill? A No. Q Why not? A I paid whatever I paid him before because, well, because I'm here today and we ended up -- I never thought we going to ended up like that but -- Q So you never paid that? A No, and -- 64 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Did you pay him any money other than the monies that they showed which was approximately $3,750.00? A No, I didn't pay anymore. The thing is when he sent it he said that he did so many cracks, he repaired so many corners and cracks and this and that. I never ask him to do all of that. I W4S just asking to do my table on the cello. Q When we talk about a table, what is a table? A It's the top of the cello. It's that one piece of wood. Yes, it's the top of the cello. Q Where the strings would come down and cross the table? A Yes. o Do you have a cello now? A No, I don't. I rent a cello. Q You rent a cello? A Um-hum. MR. THOMAS: No further questions. THE COURT: Cross. CROSS EXAMINATION BY MR. SCHERER: Q How much do you rent your cello for that you have now? A Well, I have my colleague who is a business we have a buslness together. All my students 65 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 aru renting a cello from him. So hU'6 giving me one of the student cello which is very affordable for me. a And how much i5 it? A Well, I pay $32.00 a month. Well, actually it' 5 $76.00 per quarter, for three months, including taxes. a Do you have any appreciation for what it takes to fix a cello? A Excuse me? a Are you experienced in anyway in repairing cellos? A Well, I was changing the strings, trying to put back the bridge, yes. I do appreciate it. Q I'm sorry? A Well, I know how hard it is to fix the cello and how hard it is to work on the cello. And as I said before, I really appreciate Mr. Sheibley's work. He does a very wonderful work, and I was really looking forward to have a business with him and send students to him because I really like his work, but we just didn't work it out between us. Q What benefit would it have been for you to send students there if you weren't going to get some kind of credit towards the sale price of that new cello? A You know, I wasn't interested in getting any credit. I was interested for my students -- in fair of my 66 1 8tudents I wanted them to have a good cello, and that's 2 what -- their parents they were asking me because I'm the 3 teacher. They were asking me. And it just happened -- the 4 situation happened that he was right there, and I just met 5 him and I did like his work. So it just happened. I never 6 thought about any credits or something. I dtdn't even know 7 they exist. 8 Q And you're indicating that when you first 9 talked to Mr. Sheibley about the repair of your cello that 10 he indicated that the estimate to fix it would be around 11 2,500 or 3,000? 12 A Yes, that's correct. 13 Q And then you went ahead and made payments to 14 him in October of '95 for a thousand dollars? 15 A Um-hum. 16 Q And then you paid the very next month in 17 November of '95 for a thousand dollars? 18 A Um-hum. 19 Q And then in January of '96 you paid $500.00? 20 A Um-hum. 21 Q So there you had paid $2,500.00, right? 22 A Yes. By that time he start telling me that ii ~' l 23 the repair is going to cost more. So when I ask him how 24 much it's going to be more, he said in between 35 and 25 4,000. So then I said I can pay you 4,000 thdt's it. 67 ,....., 1 That's going to be my top. That's all the money what I 2 have. And that was the verbal agreement between us that I 3 said you repair the table and that's how much money I can 4 pay, not more. 5 Q Isn't it true that you would call Mr. 6 Sheibley from time to time and talk about the repair of 7 your cello and ask that additional work be done? 8 A Never. That's not true. 9 Q Didn't Mr. Sheibley tell you that when he 10 gave you the estimate that he really wouldn't know the full 11 extent of the repairs necessary until he removed the top? 12 A Well, that's why he said it's going to cost 13 between 35 and 4,000, and then I never ask him even if you 14 open the cello I just needed a top. I wasn't asking him to 15 do the cracks or the other addition work because I knew 16 it's going to cost me money. I never asked him to do that. 17 He told me that it needs to be done. I said 18 I do understand that, but if you oFened it he said, I'm 19 opening the cello then, why not we should do that already. 20 But he didn't ask me, and he didn't tell me that eventually 21 he was going to ask me almost $10,000.00 for the repairs. 22 So I knew that and I was asking only to fix the table. 23 The rest of the cello was not in bad 24 condition. The rest of the cello was in good condition. I 25 could have survived with that cello for another ten years. 68 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I just needed to change -- well, I'm not a professional. I'm just a cello teacher. And as much as I play on my cello, it would be enough for me for another ten years if you would change only the table. Q How was it that you decided to pay $250.00 a month after those two initial $1,000.00 payments? A Well, because those were money I had saved. I didn't have anymore money, but he needed me to pay him. He wanted me to pay him. Q So you just picked that amount? A No, he told me that he needs $250.00 a month. Q He's got your cello that he's repairing for a period of several months and you are not seeing any bills? A Yes, that's correct. Q And are you calling him and telling him, where are the bilis,wtat's going on? A Well, I didn't know. This is the first time I ever had something to do with the people like to fix the cello. I never even fixed my car at that time so I didn't know how it goes. Q Were things getting difficult for you financially in the spring of 1996 that you had to begin to use money orders? 69 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ,~ A Well, sometimes -- I don't remember what was the situation, why did I have to use the money order or the checks. I don't remember. I can't recall. But the thing is from time to time it was, yes, I had difficulties, financial difficulties which he knew about it. I told him from right from the beginning, and he tried to convince me to buy his cello. I said, I can't afford it, I have my cello, and I want my cello back. That's all I want. That cello is very important to me. That's the only thing what I have left from my father. Q Now, into the late year of 1996, you hadn't made any payments on the cello that was in your possession that was Mr. Sheibley's, right? A Well, I wasn't considering those payments making towards the purchasing. I was thinking I was making payments towards the repair. Q 6ut your last payment was, say, somewhere around June of '96, do you agree with that? A I don't know. All these payments that I paid it's right here. I don't remember when I paid the last time. Q Well, the money orders are rather dark so it's hard to tell. But when Mr. Sheibley made contact with you in an effort to retrieve the cello that you had carried away in September or October of '95, didn't you insist to 70 1 him that he provide you with something else to play 2 immediately if that was ju~t a loaner cello that you had 3 taken from him? 4 A I don't understand. 5 Q Why didn't you insist when he wanted to take 6 back that expensive cello that he provide you with a cello 7 right away so that you could keep playing and teaching? 8 A Well, because he had a person -- somebody 9 who wanted to buy the cello. 10 Q But that left you without a cello. 11 A Well, yes, I knew that. That's why I called 12 him before many, many times, and I told him, don't do 13 anything on my cello, just give me back my cello. I wanted 14 to finish the repairs by myself in New Jersey. I called 15 him every, every month. I was begging him to do already, 16 start doing something. He never even thought about it. 17 Q Did he want you to pay the repair bill for 18 your cello before he would give you your cello back? 19 A Yes. 20 Q And-- 21 A He needed to purchase the table from 22 Germany. He needed to have some money for the materials. 23 Q That's why you explained that you began 24 making payments to Mr. Sheibley? 25 .1\ Well, he needed money. I gave it to him the 71 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 money. What I'm giving for I was not sure exactly. I just gave it to him the money. I wanted him to repair my cello. That's all what I wanted him to do. Q After he took back the cello that he sold you -- A He never sold it to me. I never bought it. Q Okay. The one you took possession of, he wanted you to pay for the repairs that he had done to your cello before he would release it to you, right? A Yeah, he called me one day and he said, Tatiana, I have bad news for you. Your costs for your repairs is going to be over $10,000.00. That was a week after I give back to him his cello, and I was really shocked. I didn't understand what kind of repairs because I never seen any bill. I didn't see anything written. At that time I said stop doing everything, don't do anything anymore, just leave it the way it is, and give it to me back my cello. I don't want you to do anything on it, don't touch it. But he said it's, I don't know, too late or I don't know what -- I don't remember what he said. It just started to -- the frustration became very rough, and he was very rude to me. He called me names and -- THE COURT: Hold on. You answered the question. Next question. 72 1 BY MR. SCHERERt 2 Q Do you remember a meeting with you and Mr. 3 Sheibley and Johna BeWall in Mr. Sheibley's shop? 4 A Yes, I do remember that meeting. 5 Q And do you remember playing two different 6 cellos that Mr. Sheibley had made for several hours? 7 A I don't remember how many hours it was, one 8 hour or 45 minutes or more. I remember we had a fun time, 9 you know. We played around. We listened to both cellos. 10 It was kind of like a professional thing to go through and 11 enjoy, you know, the sound of both instruments. Both 12 instruments they were nlce, you know. 13 Well, I know at that time that Mr. Sheibley 14 really wanted me to buy my cello -- I mean, his cello, and 15 he tried it really hard to make believe that I need to buy 16 a new cello. So when we got together I knew the Joshua, 17 no -- I forgot the name. 18 Q ,Johna. 19 A Johna, I'm sorry, that he had to go to 20 college, and he really needed the cello or he had his 21 father's wedding and he needed to leave. So he just 22 said -- well, I said if I would -- if I would prefer the 23 cello which one ever I want I would go with this, 24 definitely with this because that's what I liked. 25 Q If you were going to buy it? 73 1 A It's a letter from my -- 2 MR. THOMAS: Your Honor, I'm going to object 3 on the basis of hearsay with regard to this exhibit. 4 THE COURT: What is it? 5 MR. THOMAS: It's a letter from her attorney 6 to Mr. Sheibley. The let tar is not signed by her. She 7 does receive a -- well, no, it doesn't even say on here 8 that she received a copy of this letter that was sent. 9 MR. SCHERER: Your Honor, I think if I could 10 lay some foundation. 11 THE COURT: I will let you try to lay a 12 foundation. It is not laid yet. 13 MR. SCHERER: Okay. 14 BY MR. SCHERER: 15 Q Miss Virtgaym, did you employ the services 16 of an attorney in New Jersey named W. Scott Stoner for some 17 reason or another in early 1997? 18 A Well, this is the man that I knew him a 19 little bit, and it was the only man that I could get some 20 kind of information or some help. This ha~ happened when I 21 was in with Mr. Sheibley. We couldn't find the agreement 22 between us. We couldn't work it out, and after he told me 23 my repairs to my cello is going to cost me so much money 24 and well t.he things went -- 25 THE COURT: I'm going to stop you a minute. 75 Did you hire a.n attorney in Now ,Jl1t"Bf.'!YI1 THE WITNESS: No, I didn't. THE COURT ~ You didn't? THE WI'rNI;;SS: No, r just talk to him on the phone. THE COURT: Nel(t queB tion. THE WITNESS: I allked him -- THE; COURT: Hold on. Next question. THE WITNESS: I'm sorry. 1 2 3 4 5 6 7 8 9 10 BY MR. SCHERER: 11 Q Did you ask that attorney to Bend a letter 12 to Mr. Sheibley? 13 A No, I didn't. 14 Q Did you discuss with that attorney the 15 problem that you were having with Mr. Sheibley? 16 A Yes, I explain it to him what happened. I 17 was very nervous at that time, and I try to explain it to 18 him what Mr. Sheibley wanted me to do and I never agreed to 19 it. So I never seen this letter before. I never get -- I 20 never got a copy of it. 21 Q But you agree that this attorney was 22 supposed to contact Mr. Sheibley in some way in an effort 23 to -- 24 A No, I didn't knIJw that. I didn't know that 25 he will contact him. I dldn' t know he will send a letter. 76 1 I never ask him to do it. t dldn't ask him to do it. I 2 just needed him just to help me figure it out what can I 3 do. So I explain him the situation and that's it. 4 When he send him the lettor, tha t' s all 5 information what I was telling him except one thing that he 6 misunderstand me that I never said I will buy, purchase the 7 instrument from Mr. Sheibley. 8 I just wanted my cello to be repaired. Mr. 9 Sheibley wanted me to buy his cello. He offered me other 10 things that will be good for him. He wanted me to sell my 11 cello for whatever money, for whatever reason, and then put 12 those money towards -- 13 THE COURT: You are telling me you never 14 authorized this letter to be sent? 15 THE WITNESS: No, I didn't. 16 THE COURT: Okay. 17 BY MR. SCHERER: 18 Q But you did consult with this attorney for 19 advice on this matter? 20 A Yes, I spoke to him. I needed to talk to 21 someone else. 22 MR. SCHERER: Your Honor, Pennsylvania Rule 23 of Evidence 803.25 deals with the hearsay exceptions, and 24 there is an exception that if a statement is made by a 25 party's agent or servant concerning a matter within the 77 1 scope of the agency or employment made during the existence 2 of a relationship that it is a hearsay exception and takes 3 it out of inadmissible document. 4 MR. THOMAS: In response to that, Your 5 Honor, her testimony is that she never authorized him to 6 send the letter. She merely went to him for advice. If he 7 took it upon himself to send a letter, he was not acting 8 within the scope of his agency or employment. 9 THE COURT: The objection is overruled. Th. 10 letter is admitted. 11 BY MR. SCHERER: 12 Q Would you read paragraph two of the letter? 13 A Ms. Virtgaym also had initiated a purchase 14 of a new cello from you, for which she has paid to date 15 $3,750.00. However, she determined that she would be 16 unable to afford the instrument, and returned it to you 17 with your permission and acceptance. Well, as I said -- 18 Q That's all r wanted to ask you. 19 A He misunderstand me. I needed to talk to 20 him just to get advice, but he misunderstand me. I was 21 trying to explain it to him that Mr. Sheibley wants me to 22 buy, but I never agreed to it. 23 MR. SCHERER: Thank you. That's all the 24 questions I have. 25 THE COURT: Any redirect? 78 1 MR. THOMAS: No, Your Honor. 2 THE COURTt You may step down. 3 MR. THOMAS: Your Honor, we would move for 4 the admission of Defense Exhibit 1 which was identified by 5 Mr. Sheibley as an October 1, 1995, invoice. 6 THE COURT: Admitted. Do you rest? 7 MR. THOMAS: Yes, Your Honor. 8 THE COURT: Any rebuttal? 9 MR. SCHERER: Just to ask that the last 10 exhibit, No.5, Plaintiff's 5 be admitted. 11 THE COURT: It is admitted. 12 MR. SCHERERt Okay. Then no rebuttal. 13 THE COURT: The record is closed. Argument, 14 off the record. 15 (Whereupon, argument was held off 16 the record.) 17 THE COURT: I will get at it. I will have 18 something down shortly, and I will notify the parties. 19 Well presented, both lawyers. I understand the. case 20 completely. 21 (Whereupon, the trial was concluded 22 at 11:18 a.m.) 23 24 25 79