HomeMy WebLinkAbout97-05676
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COM>>LAINT
Appellee Theresa A. Santorella complains of Appellant
Gregory A. Filak D/B/A Tech Support Unlimited as followst
1. Jurisdiction in this case is based upon 42 Pa.C.S~
a 931 (1997), which states that the courts of common pleas
shall have unlimited original jurisdiction of all actions
and proceedings, including all actions and proceedings
heretofore cognizable by law or usage in the courts of
common pleas.
2. On approximately February 16, 1997, the Appellee
hired Gregory A. Filak, D/B/A Tech Support Unlimited to
install a new hard drive into her computer.
3. On approximately February 16, 1997, the Appellee
hired Gregory A. Filak, D/B/A Tech Support Unlimited to
install more memory chips into her computer.
4. On approximately February 16, 1997, the Appellee
hired Gregory A. Filak, D/B/A Tech Support Unlimited to
transfer all of her computer files from the old hard drive
into the new hard drive she had just purchased.
5. On approximately February 16, 1997 the Appellee
entered into an oral agreement with the Appellant to perform
the acts listed in paragraphs 2-4 of this complaint which
together constitute what is known as a standard computer
"upgrade".
6. On approximately February 16, 1997, the Appellant
was expressly told by the Appellee that a computer "upgrade"
was desired by her because her computer had substantially
used up almost all its then existing memory space and
Appellee simply wished to have her system run faster and
thereby process information more efficiently.
7. On approximately February 16, 1997, in the
presence of Mr. David Romano, the Appellant discussed the
options that were available to Appellee in order to "upgrade
a computer" such as installing a new motherboard, or
installing a new computer processor, or installing a new
hard drive and adding memory chips.
8. On approximately February 16, 1997, the Appellant
expressed his opinion that it would be most cost efficient
for Appellee to "simply install a new hard drive and add
more memory to the computer".
2
9. On approximately February 16, 1997, it was agreed
to by the parties that the acts in paragraph 8 would be done
in order to upgrade the computer.
10. On approximately February 16, 1997, the Appellant
examined the computer and agreed to perform all of the
computer-related services stated in this complaint.
11. On approximately February 16, 1997, in the
presence of Mr. David Romano, the Appellant was expressly
told that Appellee was a law student at the Dickinson School
Of Law who was substantially depend~nt on her computer in
order to complete law school assignments, online research,
and her legal work as a student attorney at the York County
District Attorney's Office.
12. On approximately February 16, 1997, in the
presence of Mr. David Romano, the Appellee expressly asked
the Appellant if there was any risk inherent in the transfer
of her files from the old hard drive to the new hard drive.
13. On approximately February 16, 1997, the Appellee
was told in response to her question in paragraph 12 of this
complaint, that she need not worry because the Appellant
engaged in computer upgrading services "all the time".
14. On approximately February 16, 1997, the Appellant
told the Appellee that that the costs of the above-mentioned
services would be five-hundred and fifty-eight dollars and
sixty-one cents ($558.61).
15. On apprOXimately February 16, 1997, the Appellant
told the Appellee that her computer would have the above-
mentioned services completed "in a week" and that payment
would be expected when the computer was picked up.
16. On February 24, 1997, the Appellee telephoned Tech
Support Unlimited and was told by the Appellant's business
associate that the "computer was not ready yet" but that
Tech Support Unlimited expected the computer to "be ready
later in the day" and that Tech Support would call Appellee
when the computer was ready to take home.
17.
hours for
from Tech
On February 24, 1997, the Appellee waited a few
the phone call, but to her surprise no return call
Support Unlimited was forthcoming.
18. On February 24, 1997, the Appellee became
concerned as to why she had not received a call back from
Tech Support Unlimited so she telephoned the company again.
3
.
19. On February 24, 1997, the second phone call to
Tech Support Unlimited was answered by Appellant's business
associate who informed the Appellee that there was "an
impending fami!.y emergency" and that the Appellant "had to
run out for awhlle".
20. On February 24, 1997, the business associate then
told the Appellee to "please call back later in the evening"
to pick up her computer.
21. On February 24, 1997, the Appellee told the
business associate that she understood "that emergencies can
happen" and agreed to call the company back later that
evening as requested.
22. On February 24, 1997, the Appellee again waited a
few hours and then attempted to call Tech Support Unlimited
a third time.
23. On February 24, 1997, the Appellee was told by the
business associate that the computer "was almost done" and
that she should "come to the store to pick the computer up".
24. On the evening of February 24, 1997, the Appellee
arrived at Tech Support Unlimited and saw her computer lying
on a table and transferring files from her old hard drive to
her new hard drive.
25. On the evening of February 24, 1997, in the
presence of Mr. David Romano, the Appellant was forced to
inform the Appellee that her computer files did not transfer
correctly because the Appellant "forget to use the Windows
Start-Up disk" when he initially started the file transfer.
26.
personal
system.
The Appellee asserts that substantially all
computers in the industry run the Windows operating
27. The Appellee asserts that it is basic knowledge in
the industry that the proper way to transfer files is with
the aid of the Windows Start-Up disk.
28. On the evening of F~bruary 24, 1997, the Appellant
after realizing that the computer file transfer had failed
asked the Appellee to "go home and retrieve the Windows 95
Start-Up Disk" and immediately return to his store.
4
.
29. On the evening of february 24, 1997, the Appellee
and Mr. David Romano returned to Appellant's store and gave
the Appellant the Windows 95 Start-Up disk as he had
requested.
30. On the evening of rebruary 24, 1997, the Appellee,
and Mr. David Romano, spent a minimum of two hours waiting
for the computer files to ra-transfer from the old hard
drive and into new hard drive with the benefit of the
Windows 95 Start-Up disk.
31. On the evening of February 24, 1997, the Appellant
completed the transfer of the computer files from the old
hard drive to the new hard drive.
32. On the evening of February 24, 1997, after the
Appellant had finished the file re-transfer, he turned the
computer on and then assured the Appellee that the system
"was now working" and that she should pay him for his
services.
33. On the evening of February 24, 1997, the Appellant
personally wrote out a bill to Appellee in the amount of
five-hundred fifty-eight dollars and sixty-one cents
($558.61) the amount of his services.
34. On the eveninq of February 24, 1997, the Appellee
paid Appellant five-hundred fifty-eight dollars and sixty-
one cents (S558.6l) which was the full amount demanded by
the Appellant in his bill.
35.
took the
home.
On the evening of February 24, 1997, the Appellee
computer from Appellant's store and brought it
36. On the morning of rebruary 25, 1997, the Appellee
turned on her computer only to discover that literally all
the computer was able to do was turn on.
37. On the morning on rebruary 25, 1997, the Appellee
discovered that her law school files (including but not
limited to course outlines written up by Appellee over three
years), which had all previously run without difficulty,
would no longer work on her computer.
38. On the morning of February 25, 1997, the Appellee
discovered that her applications (including but not limited
to LEXIS), which had all previously worked without
difficulty, would no longer work on her computer.
~
39. On the morning of February 25, 1997, the Appellee
discovered that her briefs and other papers written on
behalf of the York County District Attorney's Office, which
had all previously worked without difficulty, would no
longer work on her computer.
40. On the morning of February 25, 1997, the Appellee
asserts that she was expected to report into work at the
York County District Attorney's Office.
41. The Appellee asserts that on February 25, 1997,
she was prevented from giving the Commonwealth the completed
brief they were expecting, which had previously worked
without difficulty, due specifically to the actions of
Appellant.
42. The Appellee asserts that on February 25, 1997,
she was prevented from being able to do any LEXIS online
legal research which was then due on behalf of the
Commonwealth, which all previously worked without
difficulty, due specifically to the actions of Appellant.
43. The Appellee asserts that on February 25, 1997,
she was prevented from accessing any of her law school work
that had been completed and was due at the Dickinson School
of Law, which all had previously worked without difficulty,
due specifically to the actions of Appellant.
44.
promptly
him that
On the morning of February 25, 1997, the Appellee
telephoned the Appellant at his store and informed
"the computer was not working properly".
45. On the morning on February 25, 1997, the Appellee
told the Appellant that she was not able to perform "either
her law school work nor her work duties" because her
computer was not running properly.
46.
requested
residence
On the morning of February 25, 1997, the Appellee
that the Appellant come to the Appellee's
"in order to look at the computer system".
47. On the morning of February 25, 1997, the Appellant
came over to the Appellee's residence and personally
observed that the computer was not working properly.
48. On the morning of February 25, 1997, after
observing that the computer was not working properly, the
Appellant told the Appellee that he would not fix her
computer because he "had other customers" to attend to.
6
49. On the morning of February 25, 1997, the Appellee
reemphasized to the Appellant that he was prev~nting her
"from doing any work at all" and that she "had already lost
a day of work".
50. On the morning of February 25, 1997, the Appellee
told the Appellant that under the exigent circumstances, she
thought Appellant should attend to her present needs before
he attended to the services of other customers who had not
even paid him yet.
51. The Appellee asserts that on the morning of
February 25, 1997, the Appellant thereby refused the
opportunity to mitigate damages by leaving the Appellee's
residence without even attempting to remedy the damage
Appellant had already caused to her computer.
52. On the morning of February 25, 1997, the Appellee,
out of desperation, called a Windows 95 technican to assess
the damage done to her computer and to alleviate that
damage, if possible.
53. On the morning of F~bruary 25, 1997, the Appellee
was told by the Windows 95 technican that because the files
"had been transferred improperly into her new hard drive
that all her files would have to be checked one-by-one" on
her computer in order to assess the full damage.
54. On the morning of February 25, 1997, the Appellee
spent at least four hours on the phone with the Windows 95
technician.
55. On the morning of February 25, 1997, the Windows
95 technican was able to identify the problems with the
computer that were caused by the Appellant but was ullable to
correct those problems over the phone.
56. The Appellee asserts that the call to the Windows
95 technican on February 25, 1997, cost her forty dollars
($40.00) .
57. On approximately March 3, 1997, the Appellee
received a telephone call from Tech Support Unlimited.
58. On approximately March 3, 1997, the Appellee
believed that the phone call received by Tech Support
Unlimited "would be an apology for all the problems that had
previously occurred".
7
59. To the Appellee's surprise, Tech Support Unlimited
did not apologize but in~tead informed the Appellee "that a
computation error" had been made on her bill and that she
now owed the store even more money.
60. During the phone conversation referred to in
paragraph 59 of this complaint, the Appellee explained in
detail to the store that her "computer was not working
properly and that she was extremely dissatisfied with the
Appellant's services as well as with the way Appellant had
treated her when he had come over to her residence".
61. During the phone conversation referred to in
paragraph 59 of this complaint, the Appellee then told the
store that she "believed the amount written on her bill to
be the full amount owed by her for Appellant's services
because that amount had constituted the basis of. their
bargainN.
62. During the phone conversation referred to in
paragraph 59 of this complaint, the Appellee, finding the
store to be most unresponsive, eventually told the person on
the phone that she "would be forced to seek legal action" if
the store did not act to remedy the situation by at a
complete minimum, paying for the Windows 95 call.
63.
from Tech
liability
hardware.
On March 5, 1997, the Appellee received a letter
Support Unlimited which attempted to avoid
by offering a thirty (30) day "warranty" on
64. The Appellee asserts that she never saw a warranty
agreement of any sort posted in the Appellant's store at the
time of sale.
65. The Appellee asserts that the Appellant never
mentioned the existence of any warranty agreement at the
time of sale.
66. The Appellee asserts that she did not read any
warranty agreement at the time of sale.
67. The Appellee asserts that she did not sign any
warranty agreement at the time of sale.
68. The Appellee asserts that she did not receive a
warranty agreement after the time of sale.
69.
warranty
The Appellee asserts that she did
agreement after the time of sale.
S
not sign a
70. The Appellee asserts that federal consumer
protection law requires that some sort of manufacturer's
warranty be given along with the purchase of new computer
hardware.
71. The Appellee asserts that she was never given a
manufacturer's warranty along with the purchase of her new
hard drive.
72. On February 25, 1997, and some appreciable time
thereafter, the Appellee asserts that she was trying to re-
write four theses, each over twenty pages in length, which
were due for law school and which were to later be her sole
grades in the courses, by using the computer lab at night at
the law school.
73. On February 25, 1997, and some appreciable time
thereafter, the Appellee asserts that she had to rewrite the
brief needed by the Commonwealth due specifically to the
actions of the Appellant.
74. On February 25, 1997, and 30me appreciable time
thereafter, the Appellee asserts that she had to manually do
legal research because she was cut off from LEXIS due
specifically to the actions of the Appellant.
75. On February 25, 1997, and some appreciable time
thereafter, the Appellee asserts that she became physically
exhausted due to the demands of an hour's travel time from
CarliSle, PA to York, PA in order to get to work, coupled
with the stress of rewriting all of her prior theses, having
to re-write her brief for the Commonwealth, and having to do
her legal research manually.
76. The Appellee asserts that further stress resulted
from the acts referred to in paragraph 75 of this complaint,
because all of her written work products had to also be done
within the time-frame of the limited operating hours of the
computer lab at the law school.
77. The Appellee asserts that she also experienced
compounded stress because she fell behind in homework due to
the demands of the acts referred to in paragraphs 75 and 76
of this complaint.
78.
referred
occurred
The Appellee asserts that the unnecessary stress
to in paragraphs 75 through 77 of this complaint,
as a direct result of the actions of the Appellant.
9
.
79. The Appell~e asserts that due to all the
circumstances referred to in paragraphs 75 through 78 of
this complaint, she was left with no other option that would
place her in the position she was before the Appellant
upgraded her computer, except to come up with the money to
enable her to purchase d brand new computer system.
80. On April 24, 1997, the Appellee purchased a new
computer system which cost her nine hundred dollars ($900)
so that she could complete her work with a computer system
which was adequate to her needs and time constraints.
81. On approximately March 1, 1997 the Appellee, in
the presence of Mr. Clayton Wheatley, attempted to speak to
the Appellant at his store in order to try to negotiate an
amicable settlement with him.
82. On approximately March 1, 1997, the Appellee
requested a refund of her money, again reiterating the fact
that the computer "never worked properly" after the
Appellant had transferred the files.
83. On approximately March 1, 1997, the Appellee also
requested that the Appellant "pay for the Windows 95
technician call".
84. On approximately March 1, 1997, the Appellant told
the Appellee that his warranty "had expired" and that he
would not refund her money.
85. On approximately March 1, 1997, the Appellant told
the Appellee that he would not pay for the Windows 95
technician call.
86. On approximately March 1, 1997, after the events
referred to in paragraphs 81 through 85 of this complaint
had occurred, the Appellee told the Appellant that she did
not think he was acting like a reasonable businessman due to
the Appellant's "previous failures to remedy the computer
problems she had experienced" and that she therefore felt
that the Appellant's "actions were highly inequitable".
87. On Approximately March 1, 1997, after the events
referred to in paragraphs 81 through 86 of this complaint
had occurred, the Appellant then immed.iately replied, "Well,
you may think so, but my warranty has expired."
88.
referred
Wheatley
The Appellee asserts that after the events
to in paragraph 87 occured, she and Mr. Clayton
then promptly left the }\,ppellant's store.
10
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Jlmes K. Jones, Esquire
I 71rY1DO Row
Carll$le. PA 17013-3019
(717):l40~291S
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.
ANUlDaD COIG'LAINT
Plaintiff Theresa A. SBntorella complains of Defendant
Gregory A. Filak D/B/A Tech Support Unlimited as fol10wst
1. Jurisdiction in this case is based IJpon 42 Pa.c.S.
a 931 (1997), which states that the courts of common pleas
shall have unlimited original jurisdiction of all actions
and proceedings, including all actions and proceedings
heretofore cognizable by law or usage in the courts of
common pleas.
2. On approximately February 16, 1997, the Plaintiff
hired Gregory A. Filak, D/B/A Tech Support Unlimited to
install a new hard drive into her computer.
3. On approximately February 16, 1997, the Plaintiff
hired Gregory A. Filak, D/B/A Tech Support Unlimited to
install more memory chips into her computer.
4. On approximately February 16, 1997, the Plaintiff
hired Gregory A. Filak, D/B/A Tech Support Unlimited to
transfer all of her computer files from the old hard drive
into the new hard drive she had just purchased.
5. On approximately February 16, 1997 the Plaintiff
entered into an oral agreement with the Defendant to perform
the acts listed in paragraphs 2-4 of this complaint which
together constitute what is known as a standard computer
"upgrade".
6. On approximately February 16, 1997, the Defendant
was expressly told by the Plaintiff that a computer
"upgrade" was desired by her because her computer had
SUbstantially used up almost all its then existing memory
space and Plaintiff simply wished to have her system r~n
faster and thereby process information more efficiently.
7. On approximately February 16, 1997, in the
presence of Mr. David Romano, the Defendant discussed the
options that were available to Plaintiff in order to
"upgrade a computer." such as installing a new motherboard,
or J.nstalling a new computer processor, or installing a new
hard drive and adding memory chips.
8. On approximately February 16, 1997, the Defendant
expressed his opinion that it would be most cost efficient
for Plaintiff to "simply install a new hard drive and add
more memory to the computer".
2
9. On approximately February 16, 1997, it wss agreed
to by the parties that the acts in paragraph 8 would be done
in order to upgrade the computer.
10. On approximately February 16, 1997, the Defendant
examined the computer and agreed to perform all of the
computer-related services stated in this complaint.
11. On approximately February 16, 1997, in the
presence of Mr. David Romano, the Defendant was expressly
told that Plaintiff was a law student at the Dickinson
School Of Law who was substantially dependent on her
computer in order to complete law school assignments, online
research, and her legal work as a student attorney at the
York County District Attorney'~ Office.
12. On approximately February 16, 1997, in the
presence of Mr. David Romano, the Plaintiff expressly asked
the Defendant if there was any risk inherent in the transfer
of her files from the old hard drive to the new hard drive.
13. On approximately February 16, 1997, the Plaintiff
was told in response to her question in paragraph 12 of this
complaint, that she need not worry because the Defendant
engaged in computer upgrading services "all the time".
14. On approximately February 16, 1997, the Defendant
told the Plaintiff that that the costs of the above-
mentioned services would be five-hundred and fifty-eight
dollars and sixty-one cents ($558.61).
15.
told the
services
expected
On approximately February 16, 1997, the Defendant
Plaintiff that he would have the above-mentioned
completed "in a week" and that payment would be
when the computer was picked up.
16. On February 24, 19~7, the Plaintiff telephoned
Tech Support Unlimited and was told by the Defendant's
business associate that the "computer was not ready yet" but
that Tech Support Unlimited expected the computer to "be
ready later in the day" and that Tech Support would call
Plaintiff when the computer was ready to take home.
17.
hours for
from Tech
On February 24, 1997, the Plaintiff
the phone call, but to her surprise
Support Unlimited was forthcoming.
waited a few
no return call
18. On February 24, 1997, the Plaintiff became
concerned as to why she had not received a call back from
Tech Support Unlimited so she telephoned the company again.
3
19. On February 24, 1997, the second phone call to
Tech support Unlimited was answered by Defendant's business
associate who informed the Plaintiff that there was "an
impending fAmily emergency" and that the Defendant "had to
run out for awhile".
20.
told the
nvening"
On February 24, 1997, the business associate then
Plaintiff to "please call back later in the
to pick up her computer.
21. On February 24, 1997, the Plaintiff told the
business associate that she understood "that emergencies can
happen" and agreed to call the company back later that
evening as requested.
22. On February 24, 1997, the Plaintiff. again waited a
few hours and then attempted to call Tech Support Unlimited
a third time.
23. On February 24, 1997, the Plaintiff was told by the
business associate that the computer "was almost done" and
that she should "come to the store to pick the computer Upfl.
24. On the evening of February 24, 1991, the Plaintiff
arrived at Tech Support Unlimited and saw her computer lying
on a table and transfp.rring files from her old hard drive to
her new hard drive.
25. On the evening of February 24, 1997, in the
presence of Mr. David Romano, the Defendant was forced to
inform the Plaintiff that her computer files did not
transfer correctly because the Defendant "forget to use the
Windows Start-Up disk" when he initially started the file
transfer.
26.
personal
system.
The Plaintiff asserts that substantially all
computers in the industry run the Windows operating
27. The Plaintiff asserts that it is basic knowledge
in the industry that the proper way to transfer files is
with the aid of the Windows Start-Up disk.
28. On the evening of February 24, 1997, the Defendant
after realizing that the computer file transfer had failed
asked the Plaintiff to "go home and retrieve the Windows 95
Start-Up Disk" and immediately return to his store.
4
29. On the evening of February 24, 1997, the Plaintiff
and Mr. David Romano returned to Defendant's store and gave
the Defendant the Windows 95 Start-Up disk as he had
requested.
30. On the evening of February 24, 1997, the Plaintiff
and Mr. David Romano spent a minimum of two hours waiting
for the computer files to re-transfer from the old hard
drive and into new hard drive with the benefit of the
Windows 95 Start-Up disk.
31. On the evening of February 24, 1997, the Defendant
completed the transfer of the computer files from the old
hard drive to the n~w hard drive.
32. On the evening of February 24, 1997, after the
Defendant had finished the file re-transfer, he turned the
computer on and then assured the Plaintiff that the system
"was now working" and that she should pay him for his
services.
33. On the evening cf February 24, 1997, the Defendant
personally wrote out ~ bill to Plaintiff in the amount of
five-hundred fifty-eight dollars and sixty-one cents
($558.61) the amount of his services.
34. On the evening of February 24, 1997, the Plaintiff
paid Defendant five-hundred fifty-eight dollars and sixty-
one cents (S558.6l) which was the full amount demanded by
the Defendant in his bill.
35.
took the
home.
On the evening of February 24, 1997, the Plaintiff
computer from Defendant's store and brought it
36. On the morning of February 25, 1997, the Plaintiff
turned on her computer only to discover that literally all
the computer was able to do was turn on.
37. On the morning on February 25, 1997, the Plaintiff
discovered that her law school files (inCluding but not
limited to course outlines written up by Plaintiff over
three years), which had all previously run without
difficulty, would no longer work on her computer.
38. On the morning of February 25, 1997, the Plaintiff
discovered that her applicatlons (including but not limited
to LEXIS), which had all previously worked without
difficulty, would no longer work on her computer.
s
39. On the morning of February 25, 1997, the Plaintiff
discovered that her briefs and other papers written on
behalf of the York County District Attorney's Office, which
had all previously worked without difficulty, would no
longer work on her computer.
40. On the mot"ning of February 25, 1997, the Plaintiff
asserts that she was expected to report into work at the
York County District Attorney's Office.
41. The Plaintiff asserts that on February 25, 1997,
she was prevented from giving the Commonwealth the completed
brief they were expecting, which had previously worked
without difficulty, due specifically to the actions of
Defendant.
42. The Plaintiff asserts that on February 25, 1997,
she was prevented from being able to do any LEXIS online
legal research which was then due on behalf of the
Commonwealth, which all previously worked without
difficulty, due specifically to the actions of Defendant.
43. The Plaintiff asserts that on February 25, 1997,
she was prevented from accessing any of her law school work
that had been completed and was due at the Dickinson School
of Law, which all had previously worked without difficulty,
due specifically to the actions of Defendant.
44.
promptly
him that
On the morning of February 25, 1997, the Plaintiff
telephoned the Defendant at his store and informed
"the computer was not working properly".
45. On the morning on February 25, 1997, the Plaintiff
told the Defendant that she was not able to perform "either
her law school work or her work duties" because her computer
was not running properly.
46.
requested
residence
On the morning of February 25, 1997, the Plaintiff
that the Defendant come to the Plaintiff's
"in order to look at the computer system".
47. On the morning of February 25, 1997, the Defendant
came over to the Plaintiff's residence and personally
observed that the computer was not working properly.
48. On the morning of February 25, 1997, after
observing that the computer was not working properly, the
Defendant told the Plaintiff that he would not fix her
computer because he "had other customers to attend to."
6
49. On the morning of February 25, 1997, the Plaintiff
reemphasized to the Defendant that he was preventing her
"from doing any work at all" and that she "had already lost
a day of work".
50. On the morning of February 25, 1997, the Plaintiff
told the Defendant that under the exigent circumstances, she
thought Defendant should attend to her present needs before
he attended to the services of other customers who had not
even paid him yet.
51. The Plaintiff asserts that on the morning of
February 25, 1997, the Defendant thereby refused the
opportunity to mitigate damages by leaving the Plaintiff's
residence without even attempting to remedy the damage he
had already caused to her computer.
52. On the morning of February 25, 1997, the
Plaintiff, out of desperation, called a Windows 95 technican
to assess the damage done to her computer and to alleviate
that damage, if possible.
53. On the morning of February 25, 1997, the Plaintiff
was told by the Windows 95 technican that because the files
"had been transferred improperly into her new hard drive
that all her files would have to be checked one-by-one" on
her computer in order to assess the full damage.
54. On the morning of February 25, 1997, the Plaintiff
spent at least four hours on the phone with the Windows 95
technician.
55. On the morning of February 25, 1997, the Windows
95 technican was able to identify the problems with the
computer that were caused by the Defendant but was unable to
correct those problems over the phone.
56. The Plaintiff asserts that the call to the Windows
95 technican on February 25, 1997, cost her thirty-five
dollars ($35.00).
57. On approximately March 3, 1997, the Plaintiff
received a telephone call from Tech Support Unlimited.
58. On approximately March 3, 1997, the Plaintiff
believed that the phone call received by Tech Support
Unlimited "would be an apology for all the problems that had
previously occurred".
7
59. To the Plaintiff's surprise, Tech Support Unlimited
did not apologize but instead informed the Plaintiff that a
"computation error" had been made on her bill and that she
now owed the store even more money.
60. During the phone conversation referred to in
paragraph 59 of this complaint, the Plaintiff explained in
detail to the store that her computer was not working
properly and that she was extremely dissatisfied with the
Defendant's servlces as well as with the way Defendant had
treated her when he had come over to her residence.
61. During the phone conversation referred to in
paragraph 59 of this complaint, the Plaintiff then told the
store that she believed the amount written on her bill to be
the full amount owed by her for Defendant's services because
that amount had constituted the basis of their bargain.
62. During the phone conversation referred to in
paragraph 59 of this complaint, the Plaintiff, finding the
store to be most unresponsive, eventually told the person on
the phone that she "would be forced to seek legal action" if
the store did not act to remedy the situation.
63.
from Tech
liability
hardware.
On March 5, 1997, the Plaintiff received a letter
Support Unlimited which attempted to avoid
by offering a thirty (30) day "warranty" on
64.
warranty
store at
The Plaintiff asserts that she
agreement of any sort posted in
the time of sale.
never saw a
the Defendant's
65. The Plaintiff asserts that the Defendant never
mentioned thp. existence of any warranty agreement at the
time of sale.
66. The Plaintiff asserts that she did not read any
warranty agreement at the time of sale.
67. The Plaintiff asserts that she did not sign any
warranty agreement at the time of sale.
68. The Plaintiff asserts that she did not receive a
warranty agreement after the time of sale.
69. The Plaintiff asserts that she did not sign a
warranty agreement after the time of sale.
8
70. The Plaintiff asserts that federal consumer
protection law requires that some sort of manufacturer's
warranty be given along with the purchase of new computer
hardware.
71. The Plaintiff asserts that she was never given a
manufacturer's warranty along with the purchase of her new
hard drive.
72. On February 25, 1997, and some appreciable time
thereafter, the Plaintiff asserts that she was trying to
rewrite four theses, each over twenty pages in length, which
were due for law school and which were to later be her sole
grades in the courses, by using the computer lab at night at
the law school.
73. On February 25, 1997, and some appreciable time
thereafter, the Plaintiff asserts that she had to rewrite
the brief needed by the Commonwealth due specifically to the
actions of the Defendant.
74. On February 25, 1997, and some appreciable time
thereafter, the Plaintiff asserts that she had to manually
do legal research because she was cut off from LEXIS due
specifically to the actions of the Defendant.
75. On February 25, 1997, and some appreciable time
thereafter, the Plaintiff asserts that she became physically
exhausted due to the demands of an hour's travel time from
Carlisle, PA to York, PA in order to get to work, coupled
with the stress of rewriting all of her prior theses, having
to re-write her brief for the Commonwealth, and having to do
her legal research manually.
76. The Plaintiff asserts that further stress resulted
from the acts referred to in paragraph 75 of this complaint,
because all of her written work products had to also be done
within the time-frame of the limited operating hours of the
computer lab at the law school.
77. The ?laintiff asserts that she also experienced
compounded stress because she fell behind in homework due to
the demands of the acts referred to in paragraphs 75 and 76
of this complaint.
78.
referred
occurred
The Plaintiff asserts that the unnecessary stress
to in paragraphs 75 through 77 of this complaint,
as a direct result of the actions of the Defendant.
9
79. The Plaintiff asserts that due to all the
circumstances referred to in paragraphs 75 through 78 of
this complaint, she was left with no other option that would
place her in the position she was before the Defendant
upgraded her computer, except to come up with the money to
enable her to purchase a brand new computer system.
80. On April 24, 1997, the Plaintiff purchased a new
computer system which cost her nine hundred dollars ($900)
so that she could complete her work with a computer system
which was adequate to her needs and time constraints.
81. On approximately March 1, 1997 the Plaintiff, in
the presence of Mr. Clayton Wheatley, attempted to speak to
the Defendant at his store in order to try to negotiate an
amicable settlement with him.
82. On approximately March 1, 1997, the Plaintiff
requested a refund of her money, again reiterating the fact
that the computer "never worked properly" after the
Defendant had transferred the files.
83. On approximately March 1, 1997, the Plaintiff also
requested that the Defendant pay for the Windows 95
technician call.
84. On approximately March 1, 1997, the Defendant told
the Plaintiff that his warranty "had expired" and that he
would not refund her money.
85. On approximately March 1, 1997, the Defendant told
the Plaintiff that he would not pay for the Windows 95
technician call.
86. On approximately March 1, 1997, after the events
referred to in paragraphs 81 through 85 of this complaint
had occurred, the Plaintiff told the Defendant that she did
not think he was acting like a reasonable businessman due to
the Defendant's "previous failures to remedy the computer
problems she had experienced" and that she therefore felt
that the Defendant's "actions were highly inequitable".
87. On Approximately March 1, 1997, after the events
zeferred to in paragraphS 81 through 86 of this complaint
had occurred, the Defendant then immediately replied, "Well,
you may think so, but my warranty has expired."
88.
referred
Wheatley
The Plaintiff asserts that after the events
to in paragraph 87 occured, she and Mr. Clayton
then promptly left the Defendant's store.
10
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Jlmes K. Jones. Esquire
7 Irvine Row
Carlisle. PA 17013.3019
(717) 240~296
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THERESA A. SANTORELLA,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97-5676 CIVIL TERM
v.
CIVIL ACTION--LAW
GREGORY A. FILAK,
D/B/A TECH SUPPORT UNLIMITED,
Defendant
JURY TRIAL DEMANDED
DEFENDANT'S ANSWER AND COUNTERCLAIM
TO PLAINTI FF' S AMENDED COMPLAINT
1. Admitted.
2. Admitted in part and denied in part. On February 22,
1997, Plaintiff brought in her computer for the installation of
additional RAM. After it was determined that the computer needed
additional hard disk space, a new hard disk was installed.
3. Admitted. See Paragraph 2.
4. Denied. Defendant offered this service as a courtesy to
Plaintiff without charge.
5. Admitted in part and denied in part.
It is admitted
that several agreements wer~ reached to perform these services.
It is denied that they constitute a standard computer upgrade.
6. Denied. Plaintiff told Defendant that she was receiving
"out of memory" errors. These were to be remedied by the addi-
tional RAt<1, and larger hard drive. Defendant told Plaintiff that
she would have to upgrade her motherboard and processor to make
her computer run faster, which she declined due to cost.
7. Admitted. See Paragraph 2.
8. Denied. Plaintiff was financially unwilling to purchase
i"1
,
a new motherboard.
9. Denied. See Paragraph 2.
10. Denied. Defendant agreed to install additional RAM and
a new hard drive with more memory and attempt to transfer the
data from the old hard drive as a courtesy as Plaintiff had not
previously backed-up the data.
11. Admitted in part and denied in part. It is admitted
that Plaintiff said she is a law student. It is denied that she
said she was dependent upon her computer.
12. Denied. It is denied that Plaintiff asked Defendant
about risks in tI'ansferring files.
13. Admitted in part and denied in part. It is denied that
~laintiff was told that there was no need to worry about the
transfer of the files. It is admitted that Defendant has per-
formed these services.
14. Denied. The original invoice was miscalculated. The
corrected invoice was forwarded in March, 1997.
15. Denied. Plaintiff was told the hard drive would be
installed the next day, February 23, 1997.
16. Admitted, with the exception that the telephone call was
made on February 23, 1997.
17. Admitted. See Paragraph 16.
lB. After reasonable investigation, Defendant is without
knowledge or information sufficient to form a belief as to the
truth of this averment. See Paragraph 16.
19. Admitted. See Paragraph 16.
20. Denied. Plaintiff was told to call back the next
evening, February 24, 1997.
21. Denied. Plaintiff agreed to call back the next evening.
22. After reasonable investigation, Defendant is without
knowledge or information sufficient to form a belief as to the
truth of this averment.
23. Admitted.
24. Denied. Plaintiff picked up her computer after the file
transfer was completed.
2S. Denied. It is denied that the files did not transfer
properly due to any error on Defendant's part. Plaintiff could
not produce original software needed to properly transfer the
files which caused some files to not transfer properly.
26. Denied. It is denied that all substantially all personal
computers run the Windows operating system in light of Macintosh
and other operating systems.
27. Denied. It is denied that the start-up disk is required.
The Windows installation disks are needed for this task if the
original transfer does not properly transfer all of the data.
28. Denied. It is denied that Defendant asked for the neces-
sary software after attempting to transfer files. It is denied
that the file transfer failed. Defendant requested the installa-
tion disks prior to attempting the file transfer but Plaintiff
was unable to produce any disks.
29. Denied. It is denied that Plaintiff was at Defendant' B
place of business more than once on February 24, 1997. It is
denied that anyone accompanied Plaintiff at any time on that
date. Defendant did not request a start up disk.
30. Admitted in part and denied in part. It is admitted
that a file transfer was attempted but not in Plaintiff's
presence. It is denied that it was attempted with a start-up
disk. See Paragraph 29.
31. Admitted.
32. Denied. Defendant never turned on the computer in
Plaintiff's presence. Defendant advised Plaintiff that to the
best of his knowledge the system was working.
33. Denied. In error, Defendant billed Plaintiff $448.20.
34. Denied. Plaintiff paid $350.00 in cash and charged
$155.61 on a credit card to cover the balance of the amount
charged and credit card surcharges.
35. Admitted.
36. After reasonable investigation, Defendant is without
knowledge or information sufficient to form a belief as to the
truth of this averment.
37. Denied in part. It is den~ed that the files no longer
worked as it was the operating system associated with the files
that would not work. After reasonable investigation, Defendant
is without knowledge or information sufficient to form a belief
as to whether the files and/or applications worked at the time
Plaintiff brought her computer to Defendant with the "out of
memory" error messages.
38. After reasonable investigation, Defendant is without
knowledge or information sufficient to form a belief as to the
truth of this averment. However, Defendant is aware that Plain-
tiff was receiving "out of memory" error messages from some
applications.
39. After reasonable investigation, Defendant is without
knowledge or information sufficient to form a belief as to the
truth of this averment.
40. After reasonable investigation, Defendant is without
knowledge or information sufficient to form a belief as to the
truth of this averment.
41. Denied. Plaintiff could have copied the brief file onto
another disk and submitted the brief.
42. Denied. It is denied that Defendant's actions prevented
Plaintiff from performing this task.
43. Denied. It is denied that Defendant's actions prevented
Plaintiff from performing this task.
44. Denied. Plaintiff informed Defendant that nothing worked
on her computer.
45. Denied. Plaintiff informed Defendant that nothing
worked on her computer.
46. Admitted.
47. Denied. The computer was working properly, but some of
the applications were not able to be accessed as original disks
to reinstall the operating system could not be provided by Plain-
tiff.
48. Admitted. After attempting to remedy the situation for
two hours caused by a lack of original disks and missing two
other appointments, Defendant was required to leave and arrange-
ments were made to continue working around the problem at anothe~
time after he provided access to the word processing and other
applications.
49. Admitted.
50. Admitted.
51. Denied. Defendant spent hours attempting to remedy a
situation caused by Plaintiff being unable to produce original
application disks and went further in making arrangements to
.
bring the unit back to his shop to attempt further procedures.
52. Admitted. However, there was no damage to Plaintiff's
computer.
53. After reasonable investigation, Defendant is without
knowledge or information sufficient to form a belief as to the
truth of this averment.
54. After reasonable investigation, Defendant is without
knowledge or information sufficient to form a belief as to the
truth of this averment.
55. After reasonable investigation, Defendant is without
knowledge or information sufficient to form a belief as to the
truth of this avetment.
56. After reasonable investigation, Defendant is without
knowledge or information sufficient to form a belief as to the
truth of this averment.
57. Admitted.
58. After reasonable investigation, Defendant is without
knowledge or information sufficient to form a belief as to the
truth of this averment.
59. Admitted.
60. Denied. Plaintiff never had any previous complaints
regarding the way Defendant treated her.
61. After reasonable investigation, Defendant is without
knowledge or information sufficient to form a belief as to the
truth of this averment.
62. After reasonable investigation, Defendant is without
knowledge or information sufficient to form a belief as to the
truth of this averment.
63. Admitted in part and denied in part. As with other .'
customers. Defendant extended a thirty day warranty on the hard-
ware by letter dated March 6, 1997. It is denied that this was
done to avoid liability,
64. After reasonable investigation, Defendant ill without
knowledge or information sufficient to form a belief as to the
truth of this averment.
65. Denied. Plaintiff was informed that Defendant offers a
customer satisfaction guarantee. Plaintiff was also informed
that the manufacturers may provide additional warranties.
66. Admitted.
67. Admitted.
68. Denied. Paragraph 63 alleges that Plaintiff received a
thirty day warranty.
69. Admitted.
70. This paragraph is a conclusion of law to which no
response is necessary. To the extent that a response is re-
quired, the allegations of this paragraph are denied.
71. Denied. Defendant received a warranty for the hard
drive and RAM through the manufacturers.
72. After reasonable investigation, Defendant is without
knowledge or information sufficient to form a belief as to the
truth of this averment. However, Plaintiff was shown how to
access her word processing files.
73. Denied. Any efforts on Plaintiff's part were not
caused by Defendant's actions. See Paragraph 72.
74. Denied. Any efforts on Plaintiff's part were not
caused by Defendant's actions.
75. After reasonable investigation, Defendant is without
knowledge or information sufficient to form a belief as to the
truth of this averment.
76. After reasonable investigation, Defendant is without
knowledge or information sufficient to form a belief as to the
truth of this averment.
77. After reasonable investigation, Defendant is without
knowledge or information sufficient to form a belief as to the
truth of this averment.
78. Denied. Any stress caused by these efforts was caused
by Plaintiff not possessing the original operating system disks
and failing to back-up her data, and were not the result of
Defendant's actions.
79. Denied. Any new purchase was caused by Plaintiff not
possessing the original application disks and failing to back-up
her data, and were not the result of Defendant's actions.
80. After reasonable investigation, Defendant is without
knowledge or information sufficient to form a belief as to the
truth of this averment.
81. Admitted in part and denied in part. It is admitted
that a conversation took place. It is denied that the conversa-
tion took place on March 1. 1997, as it took place in May, 1997.
82. Admitted in part and denied in part. It is admitted
that the conversation took place. It is denied that the conver-
sation took place in March, 1997, as it took place on May, 1997.
83. Denied. It is denied that such a request was made in
March, 1997.
84. Denied. It is denied that such a statement was made in
March, 1997. It is further denied that Defendant said he could
not refund her money, but rather he could not reinstall her
original hard drive as the warranty had expired.
85. Denied. It is denied that such a statement was made in
March, 1997.
86. Denied. It is denied that such statements were made in
March, 1997.
87. Denied. It is denied that such statements were made in
March, 1997.
88. Admitted.
89. After r.easonable investigation, Defendant is without
knowledge or information sufficient to form a belief as to the
truth of this averment.
90. After reasonable investigation, Defendant is without
knowledge or information sufficient to form a belief as to the
truth of this averment.
91. Admitted.
WHEREFORE, Defendant requests this CoUrt to enter judgment
"
in favor of Defendant and against Plaintiff.
DEFENDA}fT'S COUNTERCLAIM
92. The proper charge for servic~s rendered by Defendant i.
$558.61.
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18. Identify all services performed by Filak and/or TSU for
Ms. Santorella, whether gratuitously or otherwise, on the
premises of 118 W. North St.
Evaluated oomputer's overall condition, examinlng for obvious
problems such as disconnected wiring, smoke damage, etc.
Ran a diagnostic utility (QA+) to search for non-operational
cicuits, burned out components, etc.
Ran ScanDisk and Disk De-Fragmenter to attempt to determine any
problems with the data on the drive and improve disk access
times.
Install 16 MB RAM
Ran QA+ to check new RAM.
Attempted to unstall Amerian Online from a dskette provided by
Plaintiff.
Temporarily connected new 3.1 GB hard drive.
Initialized and formatted new drive.
Transferred data from old hard drive to new drive using a disk
copy utility.
Removed the old hard drive and permanently installed th~ew drive.
Ran QA+ to check the new hard drive.
Installed America Online using Plaintiff's diskette.
Corrected some configuration settings for Windows 95 and the
system bios to improve performance w~the new drive.
At Plaintiff's insistance, called Windows 95 technician to verify
the Plaintiff had misrepresented the problem she experienced
to the technician. Obtained recommendatlons for another
18
,
additional RAM without Plaintiff having to purchase a new
motherboard.
7. In error. See paragraph 2.
8. In error. See paragraph 6.
9. In error. See paragraph 2.
10. In error on the basis of Plaintiff's reply contained in
paragraph 2. In addition, it was the Defendant's sole
responsibility to make a back-up copy of Plaintiff's data
before he attempted the data transfer.
14. In error. The Defendant's bill written on February 22,
1997, was not miscalculated. Rather, the Defendant sent
Plaintiff a letter stating he had made a "mathematical
error" on his bill on March 5, 1997 in retaliation for
Plaintiff's prior phone conversation in which Plaintiff told
the store that she would take legal action against Tech
Support Unlimited if they did not take measures remedy the
damage caused by them to her computer.
15. In error. See paragraph 2.
16. In error. The correct date was February 22, 1997, the
date listed on Defendant's bill.
24. In error. The Plaintiff did not pick up the computer
after the data transfer was completed. On the contrary,
the Defendant twice performed the data transfer in the
presence of both Mr. David Romano and the Plaintiff on the
same day.
25. In error. Plaintiff's computer was fully operational
and came pre-installed with the operating system as did all
computers of Plaintiff's model, manufacturer, and production
year in the industry, to the best of Plaintiff's
recollection. In addition, the Plaintiff did produce all
operation booklets that Defendant requested. This manual
also states that the computer does not even come with
installation disks.
27. In error on the basis of paragraph 25. In addition,
the Window's 95 Start-Up disk contains information which was
required to be programmed into Plaintiff's computer so that
files would transfer successfully.
28. In error. The Defendant did ask for the Windows 95
start-up disk after his first attempt to transfer the data
2
on Plaintiff's computer without the aid of the disk had
failed. In addition, the Defendant never asked the
Plaintiff for any "installation disks" at any time.
30. In error. The Defendant did attempt a data transfer in
the presence of both the Plaintiff and Mr. David Romano. In
addition, the Defendant made two attempts at the transfer.
The first attempt was made without the aid of the Windows
Start-up Disk, and the second attempt was made with the aid
of the Windows Start-up disk.
31. In error. The correct date was February 22, 1997 the
same day Plaintiff paid the Defendant for his goods and
services.
32. In error. The Defendant did turn on the computer in
both the Plaintiff's and Mr. David Romano's presence. What
the Defendant did not do was to check to see if any
applications or data were running correctly.
33. In error. The Plaintiff was billed a total of fivp-
hundred and fifty-eight dollars and sixty-one cents.
($558.61.)
34. In error. See paragraph 92 of Plaintiff's New Matter.
35. In error. The correct date was February 22, 1997.
36. Partly in error. This event took place on the evening of
February 22, 1997.
37. In error on the basis of paragraphs 25, 27 and 28.
In addition, the Defendant inspected Plaintiff's computer
the day options for upgrading and transferring data was
discussed with the Plaintiff, and therefore had the
reasonable opportunity to discover that Plaintiff's files
and applications were working at that time.
38. In error. The Defendant cannot be "aware" of any out
of memory messages as the computer was brought into his shop
fully operational.
41. In error. The Plaintiff could not copy the data onto
another disk because the data had already been lost due to
the actions of Defendant.
42. In error. The LEXIS application could not be accessed
by Plaintiff because the computer was not working properly
due to the prior actions of the Defendant.
3
43. In error. See paragraph 42.
46. Partly in error. The correct date was late in the
evening on February 22, 1997 when Plaintiff left a message
on Defendant's answering machine. The Plaintiff also spoke
to the Defendant on the telephone on February 23, 1997, when
she again requested that Defendant come over to her
residence.
47. In error. The computer was not working properly and no
installation disks of any sort were ever requested by the
Defendant.
48. In error. The Defendant spent about fifteen minutes at
Plaintiff's residence and never requested any installation
disks. In addition, Defendant did not make any arrangements
to remedy the damage done to Plaintiffs computer, nor did
Defendant provide access to any word processing files.
Rather, the Defendant stated that he had "other customers"
and had to leave when he was forced to acknowledge that
Plaintiff's computer qid not work properly.
51. In error. The defendant did absolutely nothing to
mitigate damages nor did he ever request any installation
disks from the Plaintiff.
52. In error. Plaintiff's computer was rendered useless by
the actions of the Defendant and due to the Defendant's
unwillingness to mitigate damages Plaintiff called a Windows
95 technician on the telephone.
60. In error. The Plaintiff told the Defendant's agent how
dissatisfied she was Defendant's services and well as
demeanor. !n addition, the letter sent to Plaintiff by the
Defendant expressly acknowledges that the store was well
aware of Plaintiff's dissatisfaction.
62. In error. Tech Support Unlimited was well aware of
Plaintiff's dissatisfaction as is reflected by the letter
the Defendant sent to Plaintiff which reiterates same.
63. In error. The document Defendant characterizes as a
"warranty" letter is the very same letter which acknowledges
that Plaintiff was so dissatisfied with Tech Support
Unlimited's actions that she stated she would seek legal
redress if no help from the store was forthcoming.
64. In error. The Defendant is well aware that there was
no warranty sign in his store at the time.
4
65. In error. The Plaintiff was never informed that the
Defendant provided any customer satisfaction guarantees at
the time of sale. Nor was Plaintiff informed by Defendant
of manufacturer's warranties might exist. To the contrary,
Plaintiff obtained this information off the hard drive
manufacturer's website by using another computer.
68. In error. See par.agraph 63.
71. In error. Regardless of whether Defendant allegedly
received copies of manufacturer's warranties for the goods
he sold to Plaintiff, he neve~ gave Plaintiff any such
warranties as ~equired by federal law.
72. In error. The Plaintiff was nut shown how to access
her word processing files by the Defendant as the computer
was not working properly.
73. In error. See paragraphs 25, 27, and 28.
74. In error. See paragraphs 25, 27, and 28.
78. In error. See paragraphs 10, 25, 27, and 28.
79. In error. See paragraphs 10, 25, 27 and 28.
81. In error in part. This conversation took place between
April 5, 1997, when Defendant's alleged "warranty" expir~d,
and April 25, 1997, when Plaintiff bought her new computer,
82. In error in part. See paragraph 82.
83. In error in part. See paragraph 82.
84. In error. The Defendant stated to Plaintiff in the
presence of Clayton Wheatley that he would not refund her
money, nor would he give Plaintiff back the old hard drive'
that was in Defendant's possession, because Defendant '
believed a warranty existed which had expired.
85. In error in part. See paragraph 82.
86. In error in part. See paragraph 82.
87. In error in part. See paragraph 82.
s
,
96. Admitted in part and denied in part. The Plaintiff
admits that the Defendant has made repeated demands for
payment. The Plaintiff denies that any monies are properly
owed the Defendant.
tmr NAnU
The ~laintiff further asserts that paragraphs 93 and 94
of the Defendant's Count~rclaim contain fact~ of a
fraudulent natur.e.
97. Specifically, in regard to paragraph 93, the ~laintiff
asserts that her computer was in the Defendant's shop only
once in order to receive a computer upgrade. Yet the
Defendant refers to this event as the "first time" when in
fact it was the only time and the Defendant knows this.
Second, the Defendant states that this "does not include
services performed after the computer left the Defendant's
shop," when in fact the Defendant never performed any
services for Plaintiff after he upgraded her computer and
the Defendant is aware of this as well. Both of these
allegations are untrue and deceitful and these allegations
thereby contain facts of a fraudulent nature.
98. Specifically, in regard to paragraph 94, the Plaintiff
asserts that she has in her possession the bill written out
by the Defendant, as well as the customer copy portion of
her credit card receipt and an inVOice, which together show
that the allegations made in paragraph 94 are untrue and
deceitful and thereby contain facts of a fraudulent nature
concocted for the purpose of retaliation against Plaintiff
when she first threatened legal action.
WHEREFORE, the Plaintiff respectfully asks this Court
to enter judgment in favor of the Plaintiff and against the
Defendant on the Defendant's Counterclaim and also asks that
this Court impose punitive damages and/or sanctions against
the Defendant in an amount equal in value to Defendant's
Counterclaim ($50.00) or any greater sum as this Court deems
just under the circumstances.
Dated:
2!2!fJ8
1~lNlllO. 0.. ~
Theresa A. Santorella
527 South ~itt Street
Apartment 5
Carlisle, PA 17013
(71'/) -258-8232
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NlllQIUUlDUN IN SOl'l'OltT or I'LAXNTIrr'S NOTION rolt SAlfCTI0lf8
:r. SANCTIONS AGAINST D.rDlDU'1' QIUlGOltt rILAIt
A. Violation o~ l'a. It.C.I'. S 4019(a) (1) (i)
On March 3, defendant Gregory Filak received, through
his attorney, James K. Jones, Esq., a set of interrogatories
sent via certified mail by Plaintiff Theresa A. Santorella.
Under Pa. R. C.P. S 4006(a) (2)" a party must respond to
interrogatories within thirty (30) days. As of today, March
10, 1998, thirty-five (35) days after Defendant received the
interrogatories, Plaintiff has not received answers to any
of her interrogatories, nor has she received written
objections to any of her interrogatories. Even if Defendant
believes any of Plaintiff's interrogatories are
objectionable, Pa. R.C.P. S 40l9(a) (2) provides that this
does not excuse failure to respond unless Defendant files an
appropriate objection or applies for a protective order.
Since this Defendant has not done so, Plaintiff requests
under Rule S 4019(a) (1) (i) that the Court issue an order
compelling Defendant to answer the interrogatories fully,
completely and immediately.
3
.
.. Violation of 'a. a.c.'. 8 401'lh)
When Defendant Gregory Filak filed his Preliminary
Objections to Plaintiff's Reply, he did so for the purpose
of delaying the litigation and in bad faith, hoping to drag
out the litigation until Plaintiff graduates from the
Dickinson School of Law in June 1998, at which point neither
she nor her two witnesses will remain in the state of
Pennsylvania. (Plai~tiff and Mr. Clayton Wheatley will be in
Hoboken, New Jersey, w;'ile Mr. David Romano will be working
at a summer internship in ~lexandria, Virginia.) As detailed
fully in the attached Motion .0 Overrule Preliminary
Objections, Defendant's present set of objections are
frivolous and without merit. If the Court agrees that
Defendant's objections are frivolous, the Court can also
infer that they were filed in bad faith and/or for the
purpose of delay.
Filing a motion either for the purpose of delay or in
bad faith is forbidden by Pa. R.C.P. S 4019(h). Violations
of S 4019(h) are punishable by Defendant's being required to
pay costs actually incurred by Plaintiff as a result of the
violation. Therefore, Plaintiff requests that if the
arbitration hearing is unreasonably delayed as a result of
Defendant's actions, Defendant be required to compensate
Plaintiff for all reasonable travel, lodging and other
4
,
related expenses which will be incurred by her and her two
witnesses in returning to Pennsylvania for the hearing, as
these would all be costs actually incurred by Plaintiff as a
proximate cause of Defendant's motion.
II. SANCTIONS AGAINST ATTOaNmY J~8 K. JONS8
James K. Jones, Esq. has engaged in a pattern of
ethical and procedural violations directed against Plaintiff
ever since first taking this case on behalf of Defendant
Gregory Filak. The first such ethical violation occurred as
soon as Attorney Jones filed Defendant's answer without a
good-faith belief in thp. truth of his client's testimony as
required by 42 Pa.C.S. S 9579(A) (3). One significant example
of Attorney Jones' failure to properly verify his client's
answer is that Paragraph 60 of Defendant's Answer states
that "Plaintiff never had any previous complaints regarding
the way Defendant treated her." However, a letter sent by
Defendant to Plaintiff on Defendant's own letterhead four
months before litigation ever commenced explicitly admits
Defendant was aware Plaintiff had threatened legal action,
and implies that this threat motivated him to extend
Plaintiff an alleged "warranty."
A second and more egregious example of Attorney Jones'
failure to verify his client's word occurs in Paragraph 27
s
of Def~ndant's Answer, which states that "[i]t is denied
that the [Windows 95] start-up disk is required. The Windows
installation disks are needed for this task [transferring
computer data files) if the original transfer does not
properly transfer all the data." However, the user's manual
as well as the relevant techinal notes which are put out by
MicrOSOft, the manufacturer of the Windows 95 system at
issue in this case, clearly states that only the Windows 95
start-up disk or CD-ROM is required for the operating system
to run (and hence the successful transfer of files) and that
installation disks are merely an optional way to do the same
thing. In fact, the "installation disks" themselves are an
archaic concept, because Mircosoft only offered these disks
as a supplemental resource when a person chose to pay an
extra fee for them. Most significant, however, is the fact
that Microsoft stopped selling such installation disks as of
March 31, 1994 according to the owner's manual for the
computer that is the subject of this litigation. Attorney
Jones' failure to verify his clients competence and/or
honesty on this issue is a serious violation of 42 Pa.C.S. S
9579 (A) (3) .
Attorney Jones' next ethical violation occurred in
December 1998, when he allowed the twenty (20) day statute
of limitations to lapse on the filing of Defendant's answer
6
to Plaintiff's amended complaint despite having assured
Plaintiff that he did intend to file an answer within the
statutory period. As Attorney Jones has never provided a
single word of explanation for why he chose to let the
statute lapse and forced Plaintiff to file a praecipe for
default judgment with the Prothonotary under P.a. R.C.P.
S 1037(b) before finally filing the answer during the ten
(10) day statutory window allotted by the default judgment
rule, Plaintiff must conclude that his failure to do so was
intentional, with the purpose of delaying litigation and the
misplaced hope that Plaintiff might just forget about the
whole thing. However, whether Attorney Jones' failure to
follow the statute of limitations was intentional or merely
grossly negligent, it is still a violation of Pennsylvania
Rule of Professional Conduct 3.2, requiring an attorney to
expedite litigation in a fair and timely manner whenever
possible.
When Attorney Jones finally did get around to filing
the answer, it contained a counterclai~ as well as
substantial amounts of New Matter not properly captioned as
such. After Plaintiff replied to Defendant's answer,
Attorney Jones filed Preliminary Objections attempting to
strike the reply as not in conformity with Pa. R.C.P.
S 1017(a). However, the plain text of S l017(a), which
Attorney Jones himself cites in his Objections, states on
7
its face that a reply is permitted if the answer contains a
counterclaim or new matter, and Defendant's answer contains
both. Therefore, the Preliminary Objection is frivolous on
its face and violates 42 Pa.C.S. S 9579(A) (2), requiring an
attorney to have a good-faith basis when arguing a question
of law, as well as Pa. Rule of Professional Conduct 3.1,
generally prohibiting frivolous claims, motions or
pleadings. Plaintiff wrote a letter to Attorney Jones
pointing out these facts, and he wrote a letter back
reiterating his original position and refusing to remedy the
situation in any way.
The morning after the last day on which Attorney JoneB
could have filed Preliminary Objections to Plaintiff's
Reply, Plaintiff called the Prothonotary's office and found
that he h~d indeed filed such objections. After waiting two
more days and not receiving any objections in the mail,
Plaintiff drove down to Attorney Jones' office to ask if he
had mailed the objections to her. There, she discovered he
had not in fact mailed the objections to her. As Attorney
Jones did not express any intent to mail the objections to
Plaintiff anytime in the near future, she was forced to ask
him to personally hand her a copy of the objections, which
he did. Again, whether Attorney Jones' failure to mail the
objections to Plaintiff was an intentional act to delay
litigation and trick Plaintiff into waiting for the
8
objections to arrive while the twenty (20) day response
period ticked by, or whether it was simply another act of
gross negligence, his conduct in this matter nonetheless
violates the letter of Pa. Rule of Professional Conduct 3.2,
as well as the spirit of rule 3.4, requiring fairness toward
opposing party and counsel.
Finally, as noted earlier in this Motion, Plaintiff has
not received any response to her interrogatories evcn though
the thirty (30) day deadline has already elasped five days
ago.
Moreover, Plaintiff has no evidence to indicate that
either Defendant or Attorney Jones has taken any action with
regard to answering these interrogatories at all, let alone
promptly. Therefore, at least for Attorney Jones, this is
yet another violation of Pa. Rule of Professional Conduct
3.2, requiring an attorney to expedite litigation whenever
reasonably possible.
CONCLUSION AND PRADR I'OR SANCTIONS
First, the Court should note that all documentary
evidence mentioned in this motion has been attached for the
Court's convenience.
Defendant Gregory Filak has failed to answer
interrogatories in a timely manner, and has also filed
9
.
Informalion In this doculllenl is subject to chunge wilholltnullce. ('oIllJlllnies. nallles. IInd dala used In
e~lIll1ples herein arc l1ellllolls unless olherwise 1I0ted. No Jl"rlof this doclIllIcnllllny be reprodllced or
transmilled In any form or by an) means. electronic or llIedlUnlcnl. for any purpose, wilhoutlhe
cxpress wrlllen pennisslon of MlcrllSoft Corporal ion,
01993 Microsoft Corpurutlon. All righls reserved.
Microsoft [)erruglllenler I) 19l!l!-199.l Symanlec Corporulion
Microsoft Backup" 1991-1993 SYlllantec Corporallon and Quest Development Corporation
Microsoft Undelete 0 19l!l!.199.' Cenlral Polnl Software. Inc.
MSA V 01992-1993 Central Point Software. Inc.
Microsoft, Microsoft Press. MS. lInd MS-DOS arc registered trudelllarks. and Windows is a trademark
of Microsoft Corpuralionlnlhe United Slates of Alllerlca nnd other countries.
U.S. Palent NUlllbers 4955066 and 5109433
Adaplec is a trademurk of Adaptec. Inc.
AddStor is a registered Irademark and SupcrStor is Illrademllrk of AddStor. Inc.
AT&T is a registered trademark of American Telephone and Telegraph Company.
CompuAdd is a registered lrademark of CompuAdd Corporation.
CompuServe is a regiMered lrademark of COlllpuServe. Inc.
Everex is a trademark or Everex Systems, Inc.
GEnie is a trademark of General Eleclric Corporation.
Vfeature Is a trademark or Golden Bow Systems.
Hewlell-Packurd, UP, and Vectra arc registered lrademarks of Hewlell-Packard Company.
Hitachi is a registered trademark of Uilachi, Ltd.
AT. IBM. Proprinter. PSII, PS/2. and Quietwriter arc registered trademarks of International Business
Machines Corporation.
Bernoulli Is a registered lrademark or Iomega Corporalion.
Logilech is a trademark of Logitech. Inc.
Novell is a registered trademark of Novell. Inc.
Disk Manager is a registered trademark of On track Computer Systems, Inc.
Philips is a regislered trademark or Philips Internalional B.V.
Priam is a registered trademark or Priam Corporalion.
SpcedStor is a registered lrademark or Storage Dimensions.
Symantec and Norton Backup arc trademarks of Symanlec Corporation.
Syquest is a registered trademark of Syquest Technology.
UNIX is a registered trademark of UNIX Systems laboratories.
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(X)K.A()7~~.EN OM/MAl'
Printed in Taiwan R.O.C.
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7 Irvine Row
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Theresa A. Santorella
Plain'tiff
v.
IIN THE COURT OF COMMON PLEAS OF
ICUMBERLAND COUNTY, PENNSYLVANIA
I
I No. 97-5676 CIVIL TERM
I
I CIVIL ACTION--LAW
Unlimited:
: JURY TRIAL DEMANDED
Gregory A. Filak,
D/B/A Tech SUpport
Defendant
TO: Gregory A. Filak
You are hereby notified to give a written response to
the attached Interrogatories and return same to the
Plaintiff within twenty (30) days from service hereof as
required under Rule 4006 of the Pennsylvania Rules Of Civil
Procedure.
---11Nrw IIt\ a. ~
Theresa A. Santorella
527 South Pitt Street
Apartment 5
Carlisle, PA 17013
(717) -258-8232
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3. 'State the job function, scope of responsibility, and
len1th of employment of any employees who worked for Tech
support Unlimited in the year of 1997.
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Identify any liens sqainst the real or personal
property of Filak, TSU and/or TAE.
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State the cost to F1lak and/or TSU of all computer
parts sold to Ms. Santorella.
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Does
the Defendant believe that
it is a customer's
26.
responsibility to back up data
him to upgrade a computer?
in a
hard drive aft.r hir1nq
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Did Filak at any time warn Ms. Santorella that she
should back up any of her data before he was hired to
install parts and transfer data on the Plaintiff' IS computer?
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33. State the percentage of personal computers (i.e.
desktop models and laptop models) in the industry for the'
years of 1996 and 1997 which used the Windows 95 operatinq
system.
, '
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state the percentage of computers in the Defendant's
located at
118 W.
North Street 1n the years of 1996
;tore
,nd 1997 used the Windows 95 operat1nQ system.
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40. State the written text of any warranty and/or customer
satisfaction quarantee siqn that ws~ located on the premises
of Tech Support Unlimited in the month of February 1997.
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TABLa or AUTBORITIIS
STATY.,.S
Pa. R.C.P. S 1017(a) """""""""""" t,f """"""""" .6, 7, 8, 12, 13. .
Pa. R.C.P. S 1029(a) ".""""",,,,,,,,,,,,, ..,,,,,....,,...,, ......." .. . .12
Pa. R.C.P. S 1029(b) , , , , , . , , , , , , , , , ",~ , , , , , , , , , . . . , , . , , ,,8, 12
Pa. R.C.P. S 1030(a) "..""" ..."".."""""""..t"""""" .,f"""" .10, 13
Pa. R.C.P. I> 1032. """"..""""""""""""."""""""."..""" , . . ".. , " .8
Pa. R.C.P. S 1037. "".""""""""""""."""""""""""""""" . . . ".. , .11
ROLIIS or CONSTRUCTION
Pa.
S 127(b)
"""""""".""""." .,.'''''..''""".."""."."""""""
R.C.P.
Pa.
S 128 (a)
.""""."""""".... ...."...""" ," ....""" ....
R.C.P.
CUI'
Gotwalt
395 Pa.
v. De11inqer Insurance Aqency.
super. 439, 444; 577 A.2d 623
.."""""""" ...."."."
.11
(Pa. Super. 1990)
Harmer v. Hulsey..
321 Pa. Super. 11,
""."..""......"".."".".""..... ,
""" .6
15; 467 A.2d 867 (pa. Super. 1983)
Kline v. Forman,.
404 Pa. 301, 306;
".."..""" .
.".."..."" ,
"".. .10
172 A.2d 164
(Pa. 1961)
Paulish
442 Pa.
v. Bakaitis,."".. ......
434, 439; 275 A.2d 318
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(Pa.
1971)
Ruhe v.
425 Pa.
Kroger Company, ........
213, 216; 228 A.2d 750
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(pa. 1967)
3
.7
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II, .1
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By failing to properly caption as "NEW MATTER" the
additional facts concealed within his answer, Defendant
attempted to prevent Plaintiff from replying to those facts.
Had Plaintiff failed to respond, the New Matter would have
been deemed admitted under Pa. R.C.P. S 1029(b) and
Defendant could have moved for default judgment.
In addition, Plaintiff is permitted under Pa. R.C.P.
S 1017(a) to reply to New Matter even if that New Matter
does not contain an affirmative defense. Because all of the
provisions of Defendant's answer listed above contain
"material facts which are not merely denials...of the
previous pleading," Pa. R.C.P. S 1029(a), Plaintiff is
permitted to reply to all such provisions. Failing to allow
Plaintiff to do so would essentially allow Defendant free
rein to throw all sorts of new facts into his answer without
fear of being contradicted.
12
.,
"
CONCLUSION AND PRAYIR
Pa. R.C. P. S 1017 (a) allows a reply "if the anskler
contains New Matter or a counterclaim." (emphasis added)
Defendant's answer contains a counterclaim ~learly labeled
"COUNTERCLAIM." Defendant's answer also contains New Matter
which is not clearly labeled "NEW MATTER." If the Supreme
Court had meant to limit the reply only to the counterclaim
and New Matter, the rule would state that it allows a reply
"only to new matter or a counterclaim." Therefore, by the
plain text of the rule, Plaintiff should be permitted to
reply to Defendant's entire answer since his answer contains
both New Matter and a Counterclaim.
A reply to New Matter is allowed by Pa. R.C.P. S 1017.
If the New Matter contains an affirmative defense, Plaintiff
must reply or possibly suffer a default judgment. Since the
Court on a motion for default judgment determines whether
New Matter requires a response, Plaintiff exercised
reasonable caution in responding to all New Matter in
Defendant's answer, even when not labeled as "NEW MATTER."
Pa. R.C.P. 1030(a) also defines New Matter as any new
facts which do not merely deny the prior pleading. The bulk
of Defendant's answer is comprised of facts which do more
than deny Plaintiff's complaint. Since S 1017(a) allows a
reply to any New Matter, not just to affirmative defenses,
13
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PAGE 11
4TH DOCUMENT ot Level 1 pnnt.d 1n FULL tormat.
PENNSYLVANIA RULES OF COURT
... THIS DOCUMENT REFLECTS CHANGES RECEIVED THROUGH 12/01/97 ...
PENNSYLVANIA RULES OF CIVIL PROCEDURE
ACTIONS AT I.AW
CIVIL ACTION
JUDGMENT UPON DEFAULT OR ADMISSION
PA ST RCP Rule 1037 (1997)
<-I> Review Court Orde. which may amend this Rule
Rule 1037. Judgment Upon Detault or Admission. As.essment of Damages
(a) It an action i. not commenced by a complaint, the prothonotary, upon
praecipe of the defendant, shsll enter a rule upon the plaintitf to file a
complaint. It a complaint is not filed within twenty (20) day. after service of
the rule, the prothonotary, upon praecipe ot the defendant, .hall enter a
judgment of non pro..
Note: See Rule 237.I(a) (2) which require. the praec1pe tor judgment
ot non pro. to contain a certification ot written notice of intent to
file the praecipe.
(bl The prothonotary, on praecipe of the plaintiff, .hall enter judgment
again.t the defendant for failure to file within the required time a pleading to
a complaint which contain. a notice to defend or for any relief admitted to be
due by the defendant'. pleading..
Note: See Rule 237.1 which require. the praecipe for detault jUdgment
to contain a certification ot written notice of intent to file the
praecipe.
(11 The prothonotary .hall a..e.. damage. for the amount to which the
plaintiff i. entitled if it i. a .um certain or which can be made
certain by computation, but if it i. not, the damages .hall be a..e..ed
at a trial at which the i..ue. .hall be limited to the amount of the
damage..
(2) In all action. in which the only damage. to be a..e.sed are the
co.t of repairs made to property
(il the prothonotary on praecipe of the plaintiff, waiving any other
damage. under the judgment, and the filing of the affidavit. provided
by .ubparagr.ph. (ii) and (iiil .hall a..... damage. for the co.t. of
the repair.;
(iil the praecipe .hall b. accompani.d by an affidavit of the
r.pairman; the affidavit of the repairman .hall contain an itemized
r.pair bill .etting forth the charge. for labor and material u.ed in
the repair of the property; it .hall also .tate the qualification.
of the per.on who made or .upervi.ed the repairs, that the repairs
were necessary, and that the price. for labor and material were fsir
and rea.onable and those customarily charg.d;
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In The Court of COr.llllon Plolas of
CumbllrlancJ County, ?ennsyl'fania
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We do sol~ly swear (or affirm)
the Conatitution of the United States
~ealth and that we will discharge the
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that we will support, ObolY and defend
and the CvnlSt1tu~ioft or this Co~on-
duties of/_OU~'Q"~7 .~rh :idelity.
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AWARD
We, the undersigned arbitrators, having been duly appointed and sworn
(or affirmed), make the following award:
(Note: If damagea for delay are awarded, they shall be
separatal stated.)
t,
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. Arbitrator,
dissents/
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applicable. )
Dan " B..,~" ~f(;:~.f
Date of Award: t' (....L
Em; F AWARD
, 19~, at [S,L, ~.:I.,
notice thereof given
NOTICS OF
Now, the /014.. day of /2 )C~)
award w.a entered upon the docket and
partiea or their attorneys.
Arbitrators' compenaation to be
paid lJpOn appeal:
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