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HomeMy WebLinkAbout03-0319 Jefferson J. Shipman. Esquire 1.D. #51785 GOLDBERG, KATZMAN & SHIPMAN, P.c. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Plaintiff ANGELA M. ZIMMERMAN, 7111 Chambers Hill Road Harrisburg, P A 17111 Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO.: O~ - .?ICf c,~~C-r~'-L vs. D. L. SPITLER LUMBER COMPANY d/b/a SOFA SELECTIONS 6435 Carlisle Pike Mechanicsburg, PA 17050 CIVIL ACTION - LAW ARBITRATION NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and ajudgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HA VB A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, P A 17103 (717) 249-3166 (800) 990-9108 NOTIClA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita 0 en persona 0 por abogado y archivar en la corte en forma escrita sus defensas 0 sus objectiones alas demandas en contra de su persona. Sea adisado que si usted no se defiende, la sin previo aviso 0 notificacion y par cualquier quja 0 puede perder dinero 0 sus propiedades 0 otros derechos importantes para u sted LLEVE ESTA DEMANDA A UN ABOGADO IMMEDlATAMENTE SI NO TlENE ABOGADO 0 SI NO TlENE EL DlNERO SUFICIENTE DE PAGAR TAL SERVICIO, V A Y A EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUY A DlRECCION SE ENCUENTRA ESCRITA ABAJO PARA A VERIGUAR DON DE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, P A 17103 (717) 249-3 166 (800) 990-9108 Jefferson 1. Shipman, Esquire I.D. #51785 GOLDBERG, KATZMAN & SIllPMAN, P.C. 320 Market Street P.O. Box 1268 Harrisburg, P A 17108-1268 (717) 234-4161 Attorneys for Plaintiff vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO.: 03 - 3J't G(.)~L L~ ANGELA M. ZIMMERMAN, 7111 Chambers Hill Road Harrisburg, P A 17111 Plaintiff D. L. SPITLER LUMBER COMPANY d/b/a SOFA SELECTIONS 6435 Carlisle Pike Mechanicsburg, P A 17050 CIVIL ACTION - LAW ARBITRATION COMPLAINT AND NOW, comes the Plaintiff, Angela M. Zimmerman, who files this Complaint, by stating the following: 1. Plaintiff, Angela M. Zimmerman, is an adult individual who currently resides at 7111 Chambers Hill Road, Harrisburg, Dauphin County, Pennsylvania 17111. 2. Defendant, D. L. Spitler Lumber Company d/b/a Sofa Selections, is a retail merchant of household goods with its principal place of business located at 6435 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania 17050. 3. On February 11, 2002, Plaintiff purchased on special order from Defendant a Fireworks sofa and one set of pillows in Lakeview Merlot fabric, in addition to a second set of pillows in Bengal Caravan Merlot fabric, for the purchase price 01'$623.28 and an earnest money deposit of$200.00. 4. On March 20, 2002, PlaintitTpaid the balance of $423.28 on said sofa and pillows after having been notified of their imminent delivery. 5. On March 22,2002, said sofa and pillows were delivered to Plaintiff. 6. Plaintiff, upon initial inspection of said sofa, noticed several defects and indications of the sofa's inferior quality, and immediately contacted a representative of Defendant who stated these were fixable problems and would have the reupholsterer contact the Plaintiff regarding the problems. 7. The reupholsterer sent by Defendant to examine said sofa stated that the defects and inferior quality problems noted by PlaintitT could be and would be repaired when the necessary parts were received. 8. Plaintiff, upon further inspection of the sofa and prior to the completion of the aforementioned remedial work, observed further structural problems including hollow sounding arms, movement in arms and back, squeaky springs, spring marked fabric and foam padding beginning to flatten; consequently, Plaintiff surmised that said sofa was inferior and defective in many more aspects than were set f0l1h in Plaintiffs original complaint. 9. On April 21, 2002, Plaintiff again contacted a representative of Defendant and explained all the ways in which the sofa was defective, and she further explained her expectations ofa refund based on Defendant's representations regarding the quality and standards to be expected in a new sofa. 2 10. Defendant rejected Plaintiff's request for a refund of said sofa, and rejected Plaintiff's alternative request to have a sofa floor model reupholstered to her specifications to compensate for the loss of said defective sofa. 11. Plaintiff contends the aforementioned sofa was inherently defective and of inferior quality, and it did not meet the standards of its intended use, or the standards represented by Defendant to be expected of a new sofa - even with the repairs proposed by the Defendant. 12. Defendant breached the implied warranty of merchantability with respect to the sofa and has refused compensation to the Plaintiff. WHEREFORE, Plaintiff demands Judgment against Defendant, D.L. Spitler Lumber Company d/b/a Sofa Selections, in the amount of $623 .28 together with interest, delay damages, and costs of suit, which is an amount requiring this matter to be submitted to compulsory arbitration. Respectfully submitted, GOLDBERG, KATZMAN & SHIPMAN, PC DATE (/ //./03 88426.3 Gy1(ff/~A^ Je ers n . Shipma , Esquire 1. D. # 51785 PO Box 1268 Harrisburg, PAl 71 08-1268 Telephone (717) 234-4161 Attorneys for Plaintifr ~ ,) VERIFICATION I, ANGELA M. ZIMMERMAN, hereby acknowledge that I am the PlaintitTin this action, and that I have read the foregoing document and that the facts therein are true to the best of my knowledge, information and belief. I understand that any false statement herein are made subject to penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. ~i~nC SHERIFF'S RETURN ~ REGULAR CASE NO: 2003-00319 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ZIMMERMAN ANGELA M VS D L SPITLER LUMBER COMPANY DBA RONALD HOOVER , Sheriff or Deputy Sheriff of cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon D L SPITLER LUMBER COMPANY DBA SOFA SELECTIONS the PLAINTIFF , at 1450:00 HOURS, on the 23rd day of January , 2003 at 6435 CARLISLE PIKE MECHANICSBURG, PA 17050 by handing to DON SPITLER, MANAGER ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 18.00 7.59 .00 10.00 .00 35.59 ~~~~.t:~ R. Thomas Kline 01/27/2003 GOLDBERG KATZMAN SHIPMAN Sworn and Subscribed to before By: ~z:-)~/? Deputy Sheriff !J 6-l~ day of <<.003 A.D. me this F:IFILESIDAT AFILElGendoc.curlI 0681 -2.answer Created: 02125/98 12:52:59 PM Revised: 03/06/0301:02:41 PM ANGELA M. ZIMMERMAN, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW D. L. SPITLER LUMBER COMPANY d/b/a SOFA SELECTIONS Defendant JURY TRIAL DEMANDED NO. 03-319 CIVIL TERM ANSWER AND NOW, comes the Defendant, D. L. Spitler Lumber Company, by and through its attorneys, Martson Deardorff Williams & Otto, and hereby answers as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Denied. Plaintiff, or Plaintiff's agent, accepted delivery of the sofa in good condition. 7. Denied. These allegations are specifically denied as untrue. 8. Denied. After reasonable investigation, Defendant is unable to admit or deny the allegations in paragraph 8 and, therefore, those allegations are denied. 9. Denied in part, admitted in part. It is denied that Defendant made any representations concerning the quality of the sofa. It is admitted that Plaintiff contacted the store. By way of further answer, Plaintiff's behavior while visiting the store was so outrageous that it was necessary to call the police. 10. Denied. The sofa was not defective and was entirely suitable for consumer use. 11. Denied as a conclusion of law. WHEREFORE, Defendant requests that this Court enter judgment in favor of Defendant. MARTSON DEARDORFF WILLIAMS & OTTO By C0ffi Carl C. Risch, EsqUIre PA Attorney J.D. No. 75901 Ten East High Street Carlisle, PAl 70 13 (717) 243-3341 Attorneys for Plaintiff Date: March 6, 2003 VERIFICATION I, Carl C. Risch, have prepared the foregoing Complaint. The factual statements contained therein are true and correct to the best of my knowledge and belief I am authorized to make this verification on behalf of my client who is currently unavailable to sign this verification. The facts set forth are based upon my review of the documents and information furnished by my client. This verification is made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsifications to authorities, which provides at i win ly e false averments, I may be subject to criminal penalties. Dated: March 6, 2003 CERTIFICA TE OF SERVICE I, Carl C. Risch, certifY that a copy of the foregoing was served by First Class Mail as follows: Jeffeson 1. Shipman, Esq. Goldberg, Katzman & Shipman, P. C. 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1258 Date: March 6, 2003 a c <" -0 t~r~ (lJ fl! z~,_ Z\~ (;=; )c ::'<~-/ r::::. C' i?; c --: $2i: ~ C.:; (...:1 ::r.: "'I_-~'-. :-0 o -rl .-4 --~ :r ("" J ' ~I; . '( .. ) ~i-'l -1) (.) (n ...-.."... '.' :..J ;:::) (]1 F:\FILESIDA T AFILElGenerallDocumentsI10681-2.answer Created: 02125/98 12:52:59 PM Revised: 0311110301:44:23 PM ANGELA M. ZIMMERMAN, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW v. JURY TRIAL DEMANDED D. L. SPITLER LUMBER COMPANY d/b/a SOFA SELECTIONS Defendant NO. 03-319 CIVIL TERM AMENDED ANSWER AND NOW, comes the Defendant, D. L. Spitler Lumber Company, by and through its attorneys, Martson Deardorff Williams & Otto, and hereby answers as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Denied. Plaintiff, or Plaintiff's agent, accepted delivery of the sofa in good condition. 7. Denied. These allegations are specifically denied as untrue. 8. Denied. After reasonable investigation, Defendant is unable to admit or deny the allegations in paragraph 8 and, therefore, those allegations are denied. 9. Denied in part, admitted in part. It is denied that Defendant made any representations concerning the quality of the sofa. It is admitted that Plaintiff contacted the store. By way of further answer, Plaintiff's behavior while visiting the store was so outrageous that it was necessary to call the police. 10. Admitted. 11. Denied. The sofa was not defective and was entirely suitable for consumer use. 12. Denied as a conclusion oflaw. WHEREFORE, Defendant requests that this Court enter judgment in favor of Defendant. MARTSON DEARDORFF WILLIAMS & OTTO By Carl C. Risch, Esquire PA Attorney ID. No. 75901 Ten East High Street Carlisle, P A 17013 (717) 243-3341 Attorneys for Plaintiff Date: March 11, 2003 VERIFICATION I, Carl C. Risch, have prepared the foregoing Complaint. The factual statements contained therein are true and correct to the best of my knowledge and belief. I am authorized to make this verification on behalf of my client who is currently unavailable to sign this verification. The facts set forth are based upon my review of the documents and information furnished by my client. This verification is made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsifications to authorities, which provides that. I knowingly make false averments, I may be subject to criminal penalties. Dated: March 11, 2003 CERTIFICATE OF SERVICE I, Carl C. Risch, certify that a copy of the foregoing was served by First Class Mail as follows: Jeffeson 1. Shipman, Esq. Goldberg, Katzman & Shipman, P.C. 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1258 Date: March 11,2003 ;:g f;h ;-~ ~"i ZC C/] c;."' ~L 2>- )> CO ~ o ~:= o (...J o -'1 _,;';:100 ~.;.i1\ll ;:";;J -u .- -,e) I. ~;::- ""'11 ~ c5 ;"',i'11 '~ ~; :!:; ...... -< w ::> (,..:> Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 19 / NO'2003-o0319-P CNIL ANGELA K. ZIKMERKAN, vs. D.L. SPITLER LUMBER COMPANY d/b/a SOFA SELECTIONS, Defendant RULE 1312-1. The Petition for Appointment of Arbitrators shall be substantially in the following fonn: PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Jefferson J. Shipman, Esquire, , counsel for the plaintiff/~t in the above action (or actions), respectfully represents that: 1. The above-captioned action (or actions) is (are) at issue. 2. The claim of the plaintiff in the action is $ 623.28 The counterclaim of the defendant in the action is The following attorneys are interested in the case(s) as counselor are otherwise disqualified to sit as arbitrators: Carl C. Risch. Es~ire. Hartson. Deardorff. Wi~liams & Otto. attorneys for Defendant WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully submitted ~ ORDER OF COURT . AND NOW, ~.;:z 7 ,~in consideration ~f the . fOregOingp~ti'on, ~ UJ~ Esq., rJ}/JAtqI<A..~ Esq., and W .~ ,Esq., are appointed arbitrators in the above captioned action (or actions) as yed for. PJ. V1NVA'ASNN3d AlNn01 C\v"1q:jm^'lnO 28 :6 ~~V L2 83.:1 SO :10 ,: A8VLOi\K:, 3:Jl+3(}. (1:.1 H:::! CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document has been duly served upon the following counsel of record by depositing a copy of the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania, on ;?J IL{ /03 ( ( Carl C. Risch, Esquire Martson, Deardorff, Williams Ten East High Street . . Carlisle, PA 17013 Attorneys for Defendant & Otto GOLDBERG, KATZMAN & SHIPMAN, P.C. ~~pman, Esquire LD. #: 51785 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Attorneys for Plaintiff ~"' ~ . ~, M",,~('\ 'Il,s IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA t NO. <0 3- ~ '\'i .~ \ IQ~".._ TERM )).l.. ~~ L.\)1V\~ ~9~Y J.Jb~ ~ ~\~*-~ OATH We do solemnly swear (or affirm) that we will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that we will discharge the duties of our office with fidelity. v A We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following award: ote: If damages for delay are awarded, they shall be separatel . , '^ ~ ~ O\~ ~~ bQ,'3.. ~ ~\~, C-o~ Arbitrator, dissents. Date of Hearing: 5 ..~- 03. Date of Award: 5-~-03 NOTICE OF ENTRY OF A WARD Now, the .l3"uCday of ~ ' 20 03 ,at ~:~, lL.M., the above award was entered upon the docket and notice thereof given by mail to the parties or their attorneys. ~ibitrators'compensation to be (111...7-,"':' R. R ~. r'" PaId upon appeal: Prothonotary $ 290.00 By: q'r'-'-- 0. ~ D uty CD @ CD ~,,?(M( ~ k ( J>"'1~ ~~IY1c.Iwt,4-+ t /1v)t..t'l" ~..J) 1>~,:1,,,,,~ h, J'JooBpt1-! Cr-eek 75 jvcl ft1e-L--tC:Wtlc>~AA) ~ '/::>.,4 /?o s-~o " .~- ~ ~~>if:~).. Wi=- ~ ~ e.,., s: .lHY C") 0 ~ '} 0 - - .-. ," ""0 s.. -- m l.;D ~ -~> . ['i"i ~~_:y --r:' __ z-:-, --< ,~t ~ zC' ,N ~;;:; ~2 I:...,) -;~o kC :~;~) ~-. > z<. ,;:x . '1 > C' ,-"j i~ '~ .~ !~,rn -< "". . . ',"'. ~ Jefferson J. Shipman, Esquire 1.D. #51785 GOLDBERG, KATZMI\N " SHIPMIIN, P. C. P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Plaintiff ANGELA M. ZIMMERMAN, 7111 Chambers Hill Road Harrisburg, PA 17111 Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO.: 03-319 CIVIL TERM vs. D. L. SPITLER LUMBER COMPANY d/b/a SOFA SELECTIONS 6435 Carlisle Pike Mechanicsburg, PA 17050 Defendant CIVIL ACTION - LAW ARBITRATION PRAECIPE TO ENTER JUDGMENT TO THE PROTHONOTARY: PLEASE enter judgment against the Defendant, D. L. Spitler Lumber Company d/b/a Sofa Selections, in the amount of $623.28 plus costs of suit, pursuant to the Arbitrator's Award in the above-captioned matter. DATE: (..1.2~ / e'$ 97619.1 ~GOL])BERG' KATZ~~ &, SHIPMAN, P.C. " '. , . .Iu-1.~ . . e erson J. S pman, Esquire I.D. #: 51785 P.O. Box 1268 Harrisburg, PA 17108 Attorneys for Plaintiff Telephone: (717) 234-4161 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document has been duly served upon the following counsel of record by depositing a copy of the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania, on tPpU:>/~3 Carl C. Risch, Esquire Martson, Deardorff, Williams & otto Ten East High Street Carlisle, PA 17013 Attorneys for Defendant GOLDBERG, KATZMAN & SHIPMAN, P.C. ~.._~~~~-1~/ f mon cY. Sh'pm.., "qui" .D. #: 51785 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Attorneys for Plaintiff ~ olq - ~ N ~ ti:- C) n co c C C....1 -n 0 ~ ""'Dr;:., -- mr'", ...;.- C f'- ~ Z:-! ,.) ih' (:=J -.{) .c:: -< r f-';i.. ~ ~ ~;C'. ~ ~ ~E; N L ,- -" --t:- -.< (....) " Johnson, Duffie, Stewart & Weidner By: Jefferson J. Shipman, Esquire I.D. No.5 I 785 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717)761-4540 ANGELA M. ZIMMERMAN, Plaintiffs v. Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-319 CIVIL CIVIL ACTION - LAW D.L. SPITLER LUMBER COMPANY d/a/a SOFA SELECTIONS, Defendant TO THE PROTHONOTARY: JURY TRIAL DEMANDED PRAECIPE PLEASE reduce the attached Award of Arbitrators in the amount of $623.28, plus costs, to Judgment in the above-captioned matter. DATE: ? //2. f1 :232053.1 227503-1 J N, DUFFIE, STEWART & WEIDNER fMY 27REC1 ~o.... ~. --C, 1'V\{Y)~("\ ....s IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA , . .\ NO.SO'!..,. ~\'1 _,Q,.... TERM \).L. -9,~L\)<V\~ ~~(\N,/ d./b~ ~~\~~ OATH We do solemnly swear (or affirm) that we will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that we will discharge the duties of our office with fidelity. ~ ~, A We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following award: (!Vote: If damages for delay are awarded, they shall be separ~e~ ~ated.) . ~ ~~~~ ~-"~ ~ ~C( ~ l~ "'~~ ~~..Q. " . \..H.. Q~ \'", ~v~r .R: ~ ~~~ ~ ~ C>\~ b.Q,'3.. ~ C?\.J" c..D~ ~ ""~~. ~~~ . Arbitrator, dissents. Date of Hearing: ~-~-O~ Date of Award: 5-~-~. (insert name \3Plicable.) ~. \::JL rman -\ ~ ~ (.e:?': ~~~ NOTICE OF ENTRY OF AWARD Now, the .23MLday of ~ ,2003 ,at &..:~, A.M., the above award was entered upon the docket and notice thereof given by mail to the parties or their attorneys. Artibitrators'cornpensation to be rJ.,...7'A K. ;f;.~J' r-" Paid upon appeal: Prothonotary $ 290.00 By: ( .l, '('-<- 0. ~ ~lty ". CERTIFICATE OF SERVICE Gl..'b . AND NOW, this;;' day , 2004, the undersigned does hereby certify that he did this date serve a copy of the fo goin document upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Carl C. Risch, Esquire Martson, Deardorff, Williams & Otto 10 East High Street Carlisle, PA 17013 Attorneys for Defendant N, DUFFIE, STEWART & WEIDNER rson J. Ship an, Esquire 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Attorneys for Plaintiff :232060.1 227710-1 F:\FILES\DA T AFILE\General\Current\ 1 0681-6, pet, vacate, wpdlemm Created: 7/13/04 5:35PM Revised: 7/16104 2,17PM 1122921emm ANGELA M. ZIMMERMAN, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. D.L. SPITLER LUMBER COMPANY dlala SOFA SELECTIONS, Defendant NO. 03-319 CNIL ACTION - LAW JURY TRIAL DEMANDED PETITION TO STRIKE JUDGMENT AND NOW, comes the Defendant, D.L. Spitler Lumber Company dlala Sofa Selections, by and through its attorneys, MARTS ON, DEARDORFF, WILLJAMS, & OTTO, and respectfully represents as follows: 1. The Plaintiff, Angela M. Zimmerman, is an individual, with an address of 71 II Chambers Hill Road, Harrisburg, Pennsylvania 17 I I I. 2. The Defendant, D.L. Spitler Lumber Comp,my dlala Sofa Selections, is a Pennsylvania corporation, with a business address of 6435 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania 17050. 3. On or about January 10, 2003, the Plaintiff filed a Complaint against Defendant in the Cumberland County Court of Common Pleas. 4. On or about May 23, 2003, the Plaintiff and Def(mdant appeared before a Board of Arbitrators to litigate the matter raised in the Complaint. 5. On or about May 23,2003, the Board of Arbitrators entered an award that stated "[t]he transaction between the parties is hereby rescinded." The award is attached hereto as Exhibit "A." 6. By stating that the transaction is rescinded, the Board of Arbitrators entered an equitable decree implying that the Defendant was entitled to the return ofthe couch in its original condition and the Plaintiff was entitled to a refund ofthe purchase price. 7. Under Pa. R.C.P. I 307( d), an award may only be: modified to correct an obvious and unambiguous error in language if an application to modify the language is filed within thirty-days. The Plaintiff failed to appeal the decision or to file an application to modify the language of the award within the thirty-day period allowed for under the rule. Therefore, the award must stand as entered by the Board of Arbitrators on May 23,2003. 8. Because the Board of Arbitrators' award is an equitable decree, and not a monetary award, the award cannot be reduced to judgment as requested by the Plaintiff in the Praecipe filed on or about July 12,2004. 9. A Board of Arbitrators lacks the power to enter ,m equitable decree. Therefore, the decree is unenforceable and cannot be indexed by the Prothonotary. WHEREFORE, the Defendant, D.L. Spitler Lumber Company dJaJa Sofa Selections, prays this Court to grant a rule upon the Plaintiff to show cause why the A ward of Arbitrators reduced to Judgment on or about the 12th day ofJuIy, 2004, by the Cumberland County Court of Common Pleas, should not be stricken. MARTSON DEARDORFF WILLIAMS & OTTO By:~JO Carl C. Risch Attorney ill No. 75901 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Date: July 16, 2004 Attorneys for Defendant ~o..... ~. --2:, 1'V\N'\~", "$ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA .'\ ,Q. ,,'" " . NO.C:::>:!. - ~ 1'1 TERM 1). L. "'5J( I~ L\:l<V\~ ~~~y c1Jbf..- ~~\~~~ OATH We do solemnly swear (or affirm) that we will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and tha.t we will discharge the duties of our office with fidelity. A We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following award: Note: If dam ge: for delay are awarded, they ~~e se~.) " 'i h~t'lc- ~~.....Q." I...H.. Q.....\ \.~ ~~v"'r ~ ~ \ 0 ~:~;~ ~ ~ o.~ ~...- b~~. ~ <?\l' c..D~ ~ s--:-:\:. Arbitrator, dissents. q~< ~ l ~ r ,~~~~~ Date of Hearing: ~-~-o~ 5-~~-03 (m=' .,= ihppH,oblo.) ~ . \:J+. rman ~(~.:; ~~ Date of Award: NOTICE OF ENTRY OF A W ARI) Now, the .23....Ldayof ~ ,2003 , at ~:-,~, LL.M., the above award was entered upon the docket and notice thereof given by mail to the parties or their attorneys. Artibitrators'compensation to be 01,"7,;, ~? R "'1' 1->--' Paid upon appeal: Prothonotary I $ 290.00 By: ~ ..2, ,/'-'-- o. ~^~ De uly CERTIFICATE OF SERVICE I, Carl C. Risch, an authorized agent for Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Petition to Strike Judgment was selved this date by depositing same in the Post Office at Carlisle, P A, first class mail, postage prepaid, addressed as follows: Jefferson J. Shipman, Esquire JOHNSON, DUFFIE, STEWART & WEIDNER 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 ~TS~ WlLUAMS &OITO Carl C. Risch Attorney ill No. 75901 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: July 16, 2004 -..:> 'c.;) j~:!. c'_ I.,: I --:: cr' -1:' l';:' (.,) 0'" ANGELA M. ZIMMERMAN, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW 03-319 CIVIL D.1. SPITLER LUMBER COMPANY d/b/a SOFA SELECTIONS, Defendant JURY TRIAL DEMANDED IN RE: DEFENDANT'S PETITION TO STRIKE JUDGMENT ORDER AND NOW, this z. (,' day of July, 2004, it is ordered and directed that the Prothonotary list this case for the next available argument court scheduled for September 22, 2004. The parties shall file briefs in accordance with local rule. BY THE COURT, "fe'fferson J. Shipman, Esquire For the Plaintiff -4J :rlm vC'arl C. Risch, Esquire For the Defendant Prothonotary Court Administrator 8" oil "0, ~. ;'J) 92 lllf ",DDZ AHVJLJ\C"i"!.lOdd 3H1 .:!O :::::;: HC"O,ilH ANGELA M. ZIMMERMAN, PLAINTIFF : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, : PENNSYLVANIA V. D.L. SPITLER LUMBER COMPANY d/b/a SOFA SELECTIONS, DEFENDANT : 03-0319 CIVIL TERM IN RE: PETITION OF DEFENDANT TO STRIKE JUDGMENT BEFORE BAYLEY, J. AND HESS, J. ORDER OF COURT AND NOW, this ~ day of October, 2004, the petition of defendant to strike the judgment in favor of plaintiff and against defendant, IS DISMISSED. .....dElfferson J. Shipman, Esquire For Plaintiff :sal ?* ~ J(J.J2.-0V ,/Carl C. Risch, Esquire For Defendant -:! 1'-\ .c"" "10 :'1 \\d II 1.:10 ~[j[jZ FH\jl.ChG:~lJjdd 3'rll ::lO 3~}I~;:~.C)~Cl:'J\\:~ ANGELA M. ZIMMERMAN, PLAINTIFF : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. D.L. SPITLER LUMBER COMPANY d/b/a SOFA SELECTIONS, DEFENDANT 03-0319 CIVIL TERM IN RE: PETITION OF DEFENDANT TO STRIKE JUDGMENT BEFORE BAYLEY, J. AND HESS. J. OPINION AND ORDER OF COURT Bayley, J., October 11, 2004:-- On January 21,2003, plaintiff, Angela M. Zimmerman, filed a complaint against defendant, D.L. Spitler Lumber Company d/b/a Sofa Selections. Plaintiff averred that on February 11, 2002, she purchased a sofa and set of pillows on a special order from defendant for $623.28. She alleged the breach of an implied warranty of merchant- ability. She pled and sought damages of $623.28. She further averred, "Defendant rejected Plaintiffs request for a refund of said sofa, and rejected Plaintiff's alternative request to have a sofa floor model reupholstered to hEir specifications to compensate for the loss of said defective sofa." Defendant filed an amended answer denying plaintiff's claim and averring that, "The sofa was not dE~fective and was entirely suitable for consumer use." The case was referred to compulsory arbitration under 03-0319 CIVIL TERM Cumberland County Rule of Court 1301.1.' On May 2:1, 2003, three arbitrators entered the following award: The transaction between the parties is he,reby rescinded. We find in favor of the plaintiff in the amount of $623.28 plus costs of suit. The award was docketed by the prothonotary on May 23, 2003. No appeal was taken. Section 7361 (d) of the Judicial Code provides: Appeal for trial de novo.- Any party to a matter shall have the right to appeal for trial de novo in the court. . .. In the absence of appel31 the judgment entered on the award of the arbitrators shall be enforced as any other judgment of the court. On July 14, 2004, plaintiff filed with the prothonotary the following praecipe: PLEASE reduce the attached Award of Arbitrators in the amount of $623.28, plus costs, to Judgment in the above-captioned matter. (Emphasis added.) "Judgment was entered" on the docket that day pursuant to Pa. Rule of Civil Procedure 1307(c), which governs Compulsory Arbitration, and provides: If no appeal is taken within thirty days after the entry of the award on the docket, the prothonotary on praecipe shall enter judgment on the award. On July 16, 2004, defendant filed a petition to strike the judgment. Defendant maintains that the Board of Arbitrators lacked authority to enter an equitable decree. It argues that the award is unenforceable, therefore, the judgment must be stricken. The issue was briefed and argued on September 22, 2004. , This Rule was adopted pursuant to the Judicial Code at 42 Pa.C.S. Section 7361 which sets the criteria for judicial compulsory arbitrations. -2- 03-0319 CIVIL TERM Pa. Rule of Civil Procedure 1301 provides: [t]hese rules [1301-1314] apply to actions which are submitted to compulsory arbitration pursuant to local rule under Section 7361 of the Judicial Code, 42 Pa.C.S. S 7361. The Explanatory Comment to the Rule states: In determining which actions to incllJde or exclude, the nature of the action and the relief requested should 90vern. Obviously, actions which require equitable and declaratory relief are not to be referred. The grant of such relief is beyond the powElr of arbitrators. . . [t]here would seem to be no reason why replevin actions involving the right to possession of personal property would not be referred to arbitration. (Emphasis added.) Plaintiff argues that in Dickler v. Shearson Lehman Hutton, Inc., 408 Pa. Super. 286 (1991), which involved an arbitration award of equitable relief, the Superior Court of Pennsylvania held that Section 7361 of the Judicial Code "empowers the trial court to enforce the ruling of an arbitrator, by entering either a jUdgment or decree in conformity with the Arbitrator's [equitable] holding." Dickler, however, involved a common law arbitration pursuant to an arbitration clause in an agreement, not a judicial arbitration. Section 7361 of the Judicial Code now covers "judicial arbitration." The clause cited by defendant that was in Section 7361 when Dickler was decided is now in Section 7342(b). That Section governs confirmation and judgment in common law arbitrations under Sections 7341-7342. Dickler, thereforE!, is not authority for judicial arbitrators to award equitable relief. Notwithstanding, we conclude that the judgment in the present case, in accordance with the praecipe for its entry, is solely for the $623.28 in monetary -3- 03-0319 CIVIL TERM damages awarded by the arbitrators. The words in the award, "The transaction between the parties is hereby rescinded," are superfluoLls. Neither party filed any pleadings seeking an equitable remedy. The award did not order the parties to do anything. Defendant could have but did not file an appeal from the award within thirty days of May 23, 2003. It did not seek within the same thirty days, pursuant to Pa. Rule of Civil Procedure 1037(d), to have the award molded to strike the superfluous language.2 The money jUdgment entered on the monetalY award is final. Accordingly, the following order is entered. ~~L ORDER OF COURT AND NOW, this day of October, 2004, the petition of defendant to strike the judgment in favor of plaintiff and against defendant, IS DISMISSED. By the G6llrt, / ~,y 2 Pa. Rule of Civil Procedure 1037(d) provides: Where the record and the award dis(:lose an obvious and unambiguous error in the award in mathematics or language, the court, on application of a party within the thirty-day period allowed for appeal, may mold the award to the same extent and with the same effect as the court may mold the verdict of a jury. The filing of such an application shall stay all proceedings including the running of the thirty-day period for appeal until disposition of the application by the court. Any party may file a notice of appeal within the thirtY-day appeal period prescribed in subdivision (a) or within ten days after disposition of the application, which ever is later. (Emphasis adcled.) -4- 03-0319 CIVIL TERM Jefferson J. Shipman. Esquire For Plaintiff Carl C. Risch, Esquire For Defendant :sal -5- F,IFILESIDA T AFILE\GenerallCurrent\ 1 068 J -6. appnot. wpd\had Created: 10/27/044:24PM . Revised: 10/28/04 9:59AM IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY ANGELA M. ZIMMERMAN, Plaintiff v. No. 03-319 CNIL TERM- LAW D.L. SPITLER LUMBER COMPANY d/b/a SOFA SELECTIONS, Defendant NOTICE OF APPEAL Notice is hereby given that D.L. Spitler Lumber Company d/b/a Sofa Selections, the Defendant in the above matter, hereby appeals to the Superior Court of Pennsylvania from the Order entered in this matter on the I I th day of October, 2004, attached as Exhibit A. This Order has been entered in the docket as evidenced by the docket entry, attached as Exhibit B. Respectfully submitted, M DORFF WILLIAMS & OTTO ~O By Carl C. Risch, Esquire LD. No. 75901 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Sofa Selections Dated: October 28, 2004 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY ANGELA M. ZIMMERMAN, Plaintiff v. No. 03-319 CIVIL TERM- LAW D.L. SPITLER LUMBER COMPANY d/b/a SOFA SELECTIONS, Defendant TRANSCRIPT STATEMENT PURSUANT TO PA.R.A.P. 904(c) While Pa.R.A.P. requires a "Request for Transcript" to accompany a Notice of Appeal, no such transcript exists in this case. This case was decided on Oral Argument in Argument Court. Respectfully submitted, MARTSON DEARDORFF WILLIAMS & OTTO By ~C(1O Carl C. Risch, Esquire J.D. No. 75901 Ten East High Street Carlisle, P A 170 I3 (717) 243-3341 Attorneys for Soja Selections Dated: October 28, 2004 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY ANGELA M. ZIMMERMAN, Plaintiff v. No. 03-319 CIVIL TERM- LAW D.L. SPITLER LUMBER COMPANY d/b/a SOFA SELECTIONS, Defendant CERTIFICATE OF SERVICE I hereby certify that, pursuant to Pa.R.A.P. 906, a copy ofthe foregoing was served this date either by depositing same in the Post Office at Carlisle, Pennsylvania, first class mail, postage prepaid, addressed as follows: Jefferson J. Shipman, Esq. JOHNSON, DUFFIE, STEWART & WEIDNER 301 Market Street P.O. Box 109 Lemoyne, PAl 7043-0 109 The Honorable Edgar B. Bayley Cumberland County Courthouse 1 Courthouse Square Carlisle, PAl 70 13 Official Court Reporter Cumberland County Courthouse I Courthouse Square Carlisle, P A 17013 Court Administrator Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Dated: October 28, 2004 .A .,nowp "'.EC'CLA,,,APf' fxh:b\~ 4 ANGELA M. ZIMMERMAN, PLAINTIFF : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. D.L. SPITLER LUMBER COMPANY d/b/a SOFA SELECTIONS, DEFENDANT 03-0319 CIVIL. TERM IN RE: PETITION OF DEFENDANT TO STRIKE JUDGMENT BEFORE BAYLEY, J. AND HESS. J. ORDER OF COURT AND NOW, this U4-- day of October, 2004, the petition of defendant to strike the judgment in favor of plaintiff and against defendant, IS DISMISSED. Jefferson J. Shipman, Esquire For Plaintiff Carl C. Risch, Esquire For Defendant :sal ANGELA M. ZIMMERMAN, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. D.L. SPITLER LUMBER COMPANY d/b/a SOFA SELECTIONS, DEFENDANT 03-0319 CIVIL TERM IN RE: PETITION OF DEFENDANT TO STRIKE JUDGMENT BEFORE BAYLEY, J. AND HESS, J. OPINION AND ORDER OF COURT Bayley, J., October 11,2004:-- On January 21,2003, plaintiff, Angela M. Zimmerman, filed a complaint against defendant, D.L. Spitler Lumber Company d/b/a Sofa Selections. Plaintiff averred that on February 11, 2002, she purchased a sofa and set of pillows on a special order from defendant for $623.28. She alleged the breach of an implied warranty of merchant- ability. She pled and sought damages of $623.28. She further averred, "Defendant rejected Plaintiff's request for a refund of said sofa, and rejected Plaintiff's alternative request to have a sofa floor model reupholstered to her specifications to compensate for the loss of said defective sofa." Defendant filed an amended answer denying plaintiff's claim and averring that, "The sofa was not defective and was entirely suitable for consumer use." The case was referred to compulsory arbitration under 03-0319 CIVIL TERM Cumberland County Rule of Court 1301.1.' On May 23, 2003, three arbitrators entered the following award: The transaction between the parties is hereby rescinded. We find in favor of the plaintiff in the amount of $623.28 plus costs of suit. The award was docketed by the prothonotary on May 23, 2003. No appeal was taken. Section 7361 (d) of the Judicial Code provides: Appeal for trial de novo.- Any party to a matter shall have the right to appeal for trial de novo in the court. . .. In the absence of appeal the judgment entered on the award of the arbitrators shall be enforced as any other judgment of the cou rt. On July 14, 2004, plaintiff filed with the prothonotary the following praecipe: PLEASE reduce the attached Award of Arbitrators in the amount of $623.28, plus costs, to Judgment in the above-captioned matter. (Emphasis added.) "Judgment was entered" on the docket that day pursuant to Pa. Rule of Civil Procedure 1307(c), which governs Compulsory Arbitration, and provides: If no appeal is taken within thirty days after the entry of the award on the docket, the prothonotary on praecipe shall enter judgment on the award. On July 16, 2004, defendant filed a petition to strike the judgment. Defendant maintains that the Board of Arbitrators lacked authority to enter an equitable decree. It argues that the award is unenforceable, therefore, the judgment must be stricken. The issue was briefed and argued on September 22, 2004. 1 This Rule was adopted pursuant to the Judicial Code at 42 Pa.C.S. Section 7361 which sets the criteria for judicial compulsory arbitrations. -2- 03-0319 CIVIL TERM Pa. Rule of Civil Procedure 1301 provides: [t]hese rules [1301-1314] apply to actions which are submitted to compulsory arbitration pursuant to local rule under Section 7361 of the Judicial Code, 42 Pa.C.S. ~ 7361. The Explanatory Comment to the Rule states: In determining which actions to include or exclude, the nature of the action and the relief requested should govern. Obviously, actions which require equitable and declaratory relief are not to be referred. The grant of such relief is beyond the power of arbitrators. . . [t]here would seem to be no reason why replevin actions involving the right to possession of personal property would not be referred to arbitration. (Emphasis added.) Plaintiff argues that in Dickler v. Shearson Lehman Hutton, Inc., 408 Pa. Super. 286 (1991), which involved an arbitration award of equitable relief, the Superior Court of Pennsylvania held that Section 7361 of the Judicial Code "empowers the trial court to enforce the ruling of an arbitrator, by entering either a judgment or decree in conformity with the Arbitrator's [equitable] holding." Dickler, however, involved a common law arbitration pursuant to an arbitration clause in an agreement, not a judicial arbitration. Section 7361 of the Judicial Code now covers "judicial arbitration." The clause cited by defendant that was in Section 7361 when Dickler was decided is now in Section 7342(b). That Section governs confirmation and judgment in common law arbitrations under Sections 7341-7342. Dickler, therefore, is not authority for judicial arbitrators to award equitable relief. Notwithstanding, we conclude that the judgment in the present case, in accordance with the praecipe for its entry, is solely for the $623.28 in monetary -3- 03-0319 CIVIL TERM damages awarded by the arbitrators. The words in the award, "The transaction between the parties is hereby rescinded," are superfluous. Neither party filed any pleadings seeking an equitable remedy. The award did not order the parties to do anything. Defendant could have but did not file an appeal from the award within thirty days of May 23, 2003. It did not seek within the same thirty days, pursuant to Pa. Rule of Civil Procedure 1037(d), to have the award molded to strike the superfluous language.' The money judgment entered on the monetary award is final. Accordingly, the following order is entered. ORDER OF COURT AND NOW, this ~~L day of October, 2004, the petition of defendant to strike the judgment in favor of plaintiff and against defendant, IS DISMISSED. 2 Pa. Rule of Civil Procedure 1037(d) provides: Where the record and the award disclose an obvious and unambiguous error in the award in mathematics or language, the court, on application of a party within the thirty-day period allowed for appeal, may mold the award to the same extent and with the same effect as the court may mold the verdict of a jury. The filing of such an application shall stay all proceedings including the running of the thirty-day period for appeal until disposition of the application by the court. Any party may file a notice of appeal within the thirty-day appeal period prescribed in subdivision (a) or within ten days after disposition of the application, which ever is later. (Emphasis added.) -4- 03-0319 CIVIL TERM Jefferson J. Shipman. Esquire For Plaintiff Carl C. Risch, Esquire For Defendant :sal -5- ... \,,, :::::':.:,':"" 6~~; b1P PYS510 135428.10282004 Cumberland County Prothonotary's Office Civil Case Print Page 1 2003-00319 ZIMMERMAN ANGELA M (vs) SPITLER D L LUMBER COMPANy'ET Reference No. . : Case Type.. ...: COMPLAINT Judgment.. .... 623.28 Judge Assigned: Disposed Desc. : ____________ Case Comments ------------- Filed. . . . . . . . : Time......... : Execution Date Jury Trial. . . . Disposed Date. Higher Crt 1.: Higher Crt 2.: 1/21/2003 3:33 0/00/0000 0/00/0000 ******************************************************************************** General Index Attorney Info ZIMMERMAN ANGELA M 7111 CHAMBERS HILL ROAD HARRISBURG PA 17111 SPITLER D L LUMBER COMPANY 6435 CARLISLE PIKE MECHANICSBURG PA 17050 SOFA SELECTIONS 6435 CARLISLE PIKE MECHANICSBURG PA 17050 PLAINTIFF SHIPMAN JEFFERSON J DEFENDANT DEFENDANT Judgment Index SPITLER D L LUMBER COMPANY SOFA SELECTIONS SPITLER D L LUMBER COMPANY SOFA SELECTIONS SPITLER D L LUMBER COMPANY SOFA SELECTIONS Amount Date Desc 623.28 :,/23/2003 AWARD OF ARBITRATORS 623.28 :;/23/2003 AWARD OF ARBITRATORS 623.28 6/30/2003 JUDGMENT ON AWARD 623.28 6/30/2003 JUDGMENT ON AWARD 623.28 7/14/2004 JUDGMENT ON AWARD 623.28 7/14/2004 JUDGMENT ON AWARD *************************************************~~****************************** * Date Entries * *************************************************~~****************************** 1/21/2003 1/27/2003 2/25/2003 3/06/2003 3/11/2003 3/19/2003 5/23/2003 6/30/2003 6/30/2003 7/14/2004 - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - COMPLAINT -------------------------------------~.----------------------------- SHERIFF'S FILE RETURNED FILED. Case Type: COMPLAINT & NOTICE Ret Type.: Regular Litigant.: D L SPITLER LUMBER COMPANY DBA SOFA SELECTIONS Address..: 6435 CARLISLE PIKE Cty/St/Zp: MECHANICSBURG, PA 17050 Hna To: DON SPITLER, MANAGER ADULT IN CHARGE Shf/Dpty.: RONALD HOOVER Date/Time: 01/23/2003 1450:00 Costs....: $35.59 Pd By: GOLDBERG KATZMAN SHIPMAN 01/27/2003 -------------------------------------------------------------------- PETITION FOR APPOINTMENT OF ARBITRATORS - BY JEFFESON J SHIPMAN ESQ -------------------------------------.-----------------~------------ ANSWER - BY CARL C RISCH ESQ FOR PLFF -------------------------------------.------------------------------ AMENDED ANSWER - BY CARL C RISH ESQ FOR PLFF -------------------------------------.------------------------------ ORDER OF COURT 2/27/03 APPOINTMENT OF ARBITRATORS BY THE COURT GEORGE E HOFFER P JUDGE ARBITRATORS ARE WILLIAM DOUGLAS ESQ - DANIEL DEARMENT ESQ AND JAMES HUGHES ESQ NOTICE MAILED 3/19/03 ------------------------------------------------------------------- AWARD OF ARBITRATORS - THE TRANSACTION BETWEEN THE PARTIES IS HEREBY RECINDED WE FIND IN FAVOR OF THE PLAINTIFF IN THE AMOUNT OF $623.28 PLUS COST OF SUIT COPIES MAILED BILLED COUNTY FOR ARBITRATORS 6/24/03 ---------------------------------------------------------------- PRAECIPE FOR ENTRY OF JUDGMENT ON THE AWARD OF ARBITRATORS AND JUDGMENT ENTERED ----------------------------------------------------- CERTIFICATE OF SERVICE ~------------------------------------------------------------------ PRAECIPE FOR ENTRY OF JUDGMENT ON THE AWARD OF ARBITRATORS AND JUDGMENT ENTERED PYS510 Cumberland County Prothonotary's Office 13542~10282004 Civil Case Print 2003-00319 ZIMMERMAN ANGELA M (vs) SPITLER D L LUMBER COMPANy'ET Page 2 7/14/2004 7/16/2004 7/26/2004 NOTICE MAILED TO DEFENDANTS ------------------------------------------------------------------- Filed........ : Time......... : Execution Date Jury Trial. . . . Disposed Date. Higher Crt 1.: Higher Crt 2.: 1/21/2003 3:33 0/00/0000 0/00/0000 Reference No. . : Case Type. ....: COMPLAINT Judgment...... 623.28 Judge Assigned: Disposed Desc. : _~___~______ Case Comments ------------- ------------------------------------------------------------------- 10/11/2004 PETITION TO STRIKE JUDGMENT - BY CARL C RISCH ESQ FOR DEFT ------------------------------------------------------------------- ORDER _ DATED 7/26/04 - IN RE DEFT'S PETITION TO STRIKE JUDGMENT - IT IS ORDERED AND DIRECTED THAT THE PROTHONOTARY LIST CASE FOR THE NEXT AVAILABLE AGREEMENT COURT SCHEDUI,ED FOR 9/22/04 THE PARTIES SHALL FILE BRIEFS IN ACCORDANCE WITH LOCAL RULE - BY THE COURT KEVIN A HESS J COPIES MAILED ------------------------------------------------------------------- ORDER OF COURT - DATED 10/11/04 - IN RE PETITION OF DEFT TO STRIKE JUDGMENT - THE PETITION OF DEFT TO STRIKE THE JUDGMENT IN FAVOR OF PLFF AND AGAINST DEFT IS DISMISSED - BY THE COURT EDGAR B BAYLEY J COPIES MAILED 10/12/04 _ _ _ _ _ _ _ _ _ - - - - - LAST ENTRY - - - - - - - - - - - - - - *************************************************~t****************************** * Escrow Information * * Fees & Debits Beo Bal Pvmts/Adl End Bal * ********************************~****************~r****************************** COMPLAINT 35.00 35.00 .00 TAX ON CMPLT .50 .50 .00 SETTLEMENT 5.00 5.00 .00 AUTOMATION 5.00 5.00 .00 JCP FEE 10.00 10.00 .00 APPT OF ARBITRA 15.00 15.00 .00 JDMT 9.00 9.00 .00 JDMT 9.00 9.00 .00 ------------------------ ------------ 88.50 88.50 .00 *************************************************~~****************************** * End of Case Information * ******************************************************************************** (";:) ~ n ....., ~ i (:..-:';) c: = 'l -"'"' :2-n () C) " rnp= - --; :8~ "- ~ ~ !'.) ~ co ~.~c " :',r:'::;', ~:(") ....0 -... ~ ::;;: ;':,;n, ,,.) _...-J ....... -'-i '-..() .:.- ;15 '< ~ (.11 J.A20031/05 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 ANGELA M. ZIMMERMAN, Appellee IN THE SUPERIOR COURT OF PENNSYLVANIA vs. JJ 63'~ 3fq ~ D.L. SPITLER LUMBER COMPANY D/B/A/ SOFA SELECTIONS, Appellant No. 1692 MDA 2004 Appeal from the Order entered October 11, 2004 In the Court of Common Pleas of Cumberland County Civil, No. 03-319 BEFORE: STEVENS, GANTMAN, and KELLY, JJ. MEMORANDUM: FILED: August 19, 2005 Appellant, D.L. Spitler Lumber Company, appeals from the order entered in the Cumberland County Court of Common Pleas dismissing its petition to strike a judgment. We affirm. The relevant facts and procedural history of this case are as follows. Appellee, Angela M. Zimmerman, purchased a sofa and set of pillows from Appellant on February 11, 2002. Appellee averred the sofa was defective and sought a refund based on an implied warranty of merchantability. Appellant denied the claim and refused to issue a refund to Appellee. On January 21, 2003, Appellee filed a complaint against Appellant. Appellee claimed damages in the amount of $623.28 plus interest, delay damages, and costs of suit. Neither party requested rescission of the transaction or J.A20031jOS other equitable relief. The case proceeded to compulsory arbitration pursuant to Cumberland County Rules of Civil Procedure Rule 1301.1. An arbitrator entered an award on May 23, 2003, stating: "The transaction between the parties is hereby rescinded. We find in favor of [Appellee] in the amount of $623.28 plus costs of suit." (Award of Arbitrators, dated May 23, 2003, at 1; R.R. 20). Thus, the arbitrators granted both equitable relief, by rescinding the transaction, and monetary relief, through damages. On May 23, 2003, the prothonotary docketed the award. No appeal was taken. On July 14, 2004, Appellee filed a praecipe with the prothonotary to reduce the arbitration award to judgment. Judgment was entered that day. On July 16, 2004, Appellant filed a petition to strike the judgment. The parties argued before the trial court on September 22, 2004 and October 11, 2004. The trial court dismissed Appellant's petition, found the equitable relief language in the arbitration award superfluous, and entered judgment on the monetary award. Appellant timely appealed. Appellant raises the following issues for our review: WHETHER A MONEY JUDGMENT CAN BE INDEXED WHEN THE ARBITRATORS' DECISION WAS IN RESCISSION? WHETHER ARBITRATORS IN A COMPULSORY ARBITRATION HAVE POWER TO ISSUE AN EQUITABLE DECREE UNDER PA.R.C.P. 1301? (Appellant's Brief at 4). Appellant argues the language granting rescission of the transaction was not superfluous. Appellant also avers the trial court erroneously - 2 - J.A20031j05 dismissed its petition to strike judgment because an arbitration board lacks the authority to issue equitable relief. Appellant contends the arbitration award was ambiguous and the trial court does not have the power to mold ambiguous awards. Appellant concludes the trial court erred in dismissing the petition and indexing the award. We disagree. "The standard of review from the denial of a petition to strike a judgment is limited to whether the trial court manifestly abused its discretion or committed an error of law." Reco Equipment, Inc. v. John T. Subrick Contracting, Inc., 780 A.2d 684, 686 (Pa.Super. 2001), appeal denied, 567 Pa. 763, 790 A.2d 1018 (2001). With respect to arbitration awards, the nature of the claim and the relief sought should govern. See generally Pa.R.C.P. 1301, Explanatory Comment - 1981. Furthermore, a trial court may modify obvious and unambiguous errors in an arbitration award to the same extent it may modify jury verdicts. See Pa.R.C.P. 1307(d); Pa.R.C.P. 1307, Explanatory Comment - 1981. Instantly, Appellee requested only monetary relief of $623.38. Neither party sought rescission of the transaction. After judgment was entered on the award, Appellant filed the petition to strike judgment.1 The trial court considered the relief requested by the parties and properly found the arbitrator's reference to rescission of contract to be superfluous. Because 1 The trial court appears to have treated portions of Appellant's petition to strike judgment as an application to modify the arbitration award. See Pa.R.C.P. 1307(d) (allowing trial court, on application of party, to mold arbitration award). We therefore treat the issue accordingly. - 3 - J.A20031jOS neither party sought equitable relief, that provision of the award constituted an obvious and unambiguous error. Accordingly, the trial court properly modified the arbitration award in finding the equitable relief provision to be superfluous. See Pa.R.C.P. 1307(d). Since the trial court properly removed the equitable language from the arbitration award, we need not address Appellant's issue regarding an arbitrator's authority to provide equitable relief. The judgment entered on the monetary award was proper and final. Accordingly, the order of the trial court dismissing Appellant's petition is affirmed. Order affirmed. Date: - 4 - '2; c;;'~ (..;1 u> '(\'\ <, t;:;(, .-\ -;r:-T'I r\1.r: .-v t'-' :~,)q 0,(''') -," ,~'"J~ ~::z~'rA '--' :r; 2 r0 ...p -"'"' ....~.. r:-? o 0:>