HomeMy WebLinkAbout98-03359
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BIERD'S WHOLESALE ENGINE
EXCH"
PLAINTIFF/RESPONDENT
V,
J.K. PRECISION,
DEFENDANT/PETITIONER
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
98-3359 CIVIL TERM
ORDER OF COURT
AND NOW, this 19th day of November, 1998, upon consideration of the
foregoing petition, IT IS ORDERED:
(1) A Rule is issued against respondent, Bierd's Wholesale Engine Exch" to
show cause why the petition of J.K Precision to vacate a judgment should not be
'. granted,
(2)
service,
(3)
(4)
(5)
Respondent shall file an answer to the petition within fifteen (15) days of
The petition shall be decided under Pa, Rule of Civil Procedure 206,7.
Any depositions shall be completed within forty (40) days of service,
Briefs shall be filed in chambers and argument shall be held on Monday,
January 11, 1998, at 11 :30 a,m" in Courtroom No. II of the Cumberland County
Courthouse,
(6) Notice of the entry of this order shall be provided to all parties by
petitioner.
(7) All proceedings shall stay pending further orderjf
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5, On or about June 16, 1998, pursuant to the Uniform
Enforcement of Foreign Judgments Act, 42 Pa.C,S,A, !l4306, the
judgment entered in the amount of $5,014,42 in the Circuit Court
of Sauk County, Wisconsin, was filed and indexed as a Foreign
Judgment in cumberland County.
6, Upon filing the Judgment in Cumberland County, plaintiff
failed to provide Defendant with notice of Entry of the Foreign
Judgment as required by 42 Pa,C,S,A, !l4306 (c) (2), and Plaintiff
still has not properly served Defendant with notice to this date.
7, Due to Plaintiff's failure to notify Defendant of the
Entry of the Foreign Judgment the Defendant's thirty (30) day
appeal period pursuant to 42 Pa,C.S,A, !l5505 has not commence,
which constitutes an extraordinary cause to justify Court
intervention to vacate the judgment more than thirty (30) days
after entry of the judgment,
8, On or about September 17, 1998, the Cumberland County
Prothonotary's Office issued a Writ of Execution for the Sheriff
of Cumberland County against the Defendant on any and all
personal or business property found upon the premises of Jerrold
S. Weiser, the owner of Defendant business, J,K, Precision,
.'
located at 14 South Cameron Street, Harrisburg, Dauphin County,
Pennsylvania,
9, Under the Pennsylvania Uniform Enforcement of Foreign
Judgments Act, 42 Pa,C,S,A, !!l4306, foreign judgments that are
properly filed in Pennsylvania will be accorded full faith and
credit unless there is a lack of personal jurisdiction by the
Court who originally awarded the judgment or a lack of due
process,
10, Wisconsin Courts have jurisdiction over a non-resident
Defendant when the Defendant has sufficient contacts with
Wisconsin and the exercise of jurisdiction under the Wisconsin
Long-arm Statute complies with the due process requirements.
11. The Circuit Court of Sauk County, Wisconsin, did not
have proper personal jurisdiction over Defendant pursuant to
Wisconsin Rules of Civil Procedure, Rule 801,05.
12, The Defendant, J,K, Precision, did not have sufficient
minimum contacts with the State of Wisconsin, The Defendant does
not regularly do business or advertise its business in Wisconsin,
in fact, Plaintiff initiated
the
contact wi th
Defendant to
request an engine manufactured by Defendant, This is the only
".". '"'
time Defendant has ever done business in Wisconsin and Defendant
only has a place of business in Pennsylvania,
13. Any contact that Defendant had with Plaintiff in the
State of Wisconsin was minimal and at the very least tenuous,
14. Plaintiff has wh~t it believes to be a valid defense on
the merits but was unable to enter a defense in Wisconsin due to
the hardship of having to defend in a jurisdiction far from its
place of business.
15, Unless the Defendant is allowed to vacate the Judgment,
a great injustice will result in as much as the Defendant did not
have an opportunity to respond on the merits of Plaintiff's
Complaint or the Foreign Judgment. Furthermore, it would have
been a great burden on Defendant and a violation of due process
if Defendant was required to go to Wisconsin to defend against
the Complaint,
WHEREFORE, your Petitioner/Defendant, J,K, Precision, prays
this Court to grant a rule upon the Plaintiff to show cause why
the Judgment entered the 23rd day of March, 1998 by the Circuit
Court of Sauk County, Wisconsin and filed on June 16, 1998 in
Cumberland County, Pennsylvania, should not be vacated,
,: .. ~ .
Respectfully submitted,
9--~~
Attorney for Defen .
Donald L. Jones, Esquire
I.D, #24415
4000 Vine Street
Middletown, PA 17057
(717) 944-1333
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BIERD'S WHOLESALE ENGINE EXCH,
Plaintiff
IN THE COURT OF COMMON PLEAS,
CUMBERLAND COUNTY, PENNSYLVANIA
v,
NO, 98.3359 CIVIL TERM
J, K, PRECISION,
Defendant
ANSWER AND NEW MATTER
TO PETITION TO V ACA TE .JUDGMENT
TO: DEFENDANT J.K. PRECISION AND ITS ATTORNEY, DONALD L. JONES,
ESQUffiE
YOU ARE HEREBY NOTIFIED TO PLEAD AND FILE A WRITTEN RESPONSE
TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE
HEREOF OR A JUDGMENT MAYBE ENTERED AGAINST YOU.
AND NOW, comes the Plaintiff, Bierd Wholesale Engine Exchange, by and through its
attorneys, MARTS ON DEARDORFF WILLIAMS & OTIO, and avers as follows:
1. Admitted,
2, Denied in part, admitted in part. It is denied that the Defendant currently has a
business located at415 Bosler Avenue, Rear, Lemoyne, Cumberland County, Pennsylvania 17055.
It is admitted that Defendant was formerly located at that address, By way of further answer,
Defendant is now located at 14 South Cameron Street, Harrisburg, Pennsylvania.
3, Admitted,
4, Admitted.
5, Admitted,
6. Admitted in part, denied in part, It is admitted that service was not immediately given
to Defendant as required under 42 Pa.C.S. ~ 4306(c)(2). It is denied that Plaintiff has not properly
served Defendant as of today. By way of further answer, Plaintiff served Defendant by certified mail
on October 14, 1998, with a copy of said service sent to Peter Henninger, Esquire, counsel to
Defendant, per his instructions,
7, Denied, The allegations in Paragraph 7 constitute conclusions of law to which no
response is required, By way of further answer, Plaintiff denies that Defendant has not been given
sufficient notice of the entry of foreign judgment.
8, Admitted in part, denied in part. It is admitted that a writ of execution was issued
against the Defendant on September 17, 1998, The allegations in Paragraph 8 are denied to the
extent that there is a difference drawn between ],K, Precision and the alleged owner of property
located at Defendant's place of business at 14 South Cameron Street, Harrisburg, Pennsylvania,
9, Denied, The allegations in Paragraph 9 constitute conclusions of law to which no
response is required,
10, Denied, The allegations in Paragraph 10 constitute conclusions of law to which no
response is required,
II, Denied, The allegations in Paragraph II constitute conclusions of law to which no
response is required,
12, Denied. The allegations in Paragraph 12 partially constitute conclusions of law to
which no response is required. To the extent the allegations in Paragraph 12 constitute factual
allegations, Plaintiff lacks sufficient knowledge to either admit or deny the allegations and therefore
the allegations are denied,
13. Denied, The allegations in Paragraph 13 constitute conclusions of law to which no
response is required,
14, Denied, Plaintiff lacks sufficient knowledge to either admit or deny the allegations
in Paragraph 14 and therefore the allegations are denied.
15, Denied, Plaintiff lacks sufficient knowledge to either admit or deny the allegations
in Paragraph IS and therefore the allegations are denied.
WHEREFORE, Plaintiff requests that this Court deny the petition to vacate judgment.
NEW MA'nER
16, The allegations set forth above are incorporated herein as if fully set forth,
17, Upon transfering the foreign judgment to Cumberland County, Pennsylvania, Plaintiff
attempted to serve a writ of execution on Defendant at its last known address -- 415 Bosler Avenue,
Rear, Lemoyne, Cumberland County, Pennsylvania,
18, On or about September 9, 1998, the Sheriff of Cumberland County attempted to serve
the writ of execution on Defendant at 415 Bosler Avenue, Rear, Lemoyne, Cumberland County,
Pennsylvania, but the writ was returned nulla bona -- the Defendant had moved to Dauphin County,
19, Upon learning of Defendant's relocation, the Dauphin County Sheriff was directed to
serve a writ of execution on the property of the Defendant at its new location -. 14 South Cameron
Street, Harrisburg, Pennsylvania.
20. This writ was successfully served on Defendant on September 28, 1998, and said
sheriff levied upon property of Defendant at that time,
21. On October 12, 1998, counsel to the Plaintiff received a telephone call from Peter
Henninger, Esquire, counsel to the Defendant, regarding the writ of execution that had been served
on Defendant at 14 South Cameron Street, Harrisburg, Pennsylvania,
22. In that telephone call, Mr. Henninger expressed concern that his client had not
received proper notice of the entry of the foreign judgment in Cumberland County, Pennsylvania, and
that service of the writ served on September 28, 1998, by the Dauphin County Sheriff was the first
time the Defendant had learned of the judgment's transfer to Pennsylvania,
23. Upon verifying that notice had not been given by the Prothonotary of Cumberland
County under 42 Pa.C,S, ~ 4306(c)(2) when the foriegn judgment was initially indexed on June 16,
1998, Plaintiff gave notice of the foreign judgment in compliance with 42 Pa,C.S, ~ 4306(c)(2) to the
Defendant by certified mail, being received on October 14, 1998, and to Defendant's counsel,Mr,
Henninger, by first class mail, A copy of the return receipt is attached hereto as "Exhibit A,"
24. Given that both Defendant and its counsel were notified of the judgment in compliance
with 42 Pa,C,S, ~ 4306(c)(2) on October 14, 1998, the Petition to Vacate Judgment, filed 34 days
later, is untimely and is barred as a matter of law.
"
25, Plaintiff did not intentionally fail to give notice to Defendant on June Hi, 1998 .. the
judgment was indexed with the understanding that the Prothonotary of Cumberland County would
give notice to the Defendant as required by 42 Pa,C,S, ~ 4306(c)(2). Plaintiffs counsel was not
aware that the Prothonotary would not give said notice unless supplied with prepared envelopes for
service,
26, This judgment results from a transaction between the parties within the boundaries of
the State of Wisconsin.
27, On or about July 3, 1997, the Plaintiff purchased from Defendant an automotive
engine, This engine was shipped from Pennsylvania to Plaintiff in Wisconsin,
28, After PIaintiffreceived the engine in Wisconsin, the engine was sold to a customer in
Wisconsin who installed it in another customer's vehicle, also a resident of Wisconsin. The engine
was then used exclusively in Wisconsin.
29, After the engine was discovered to be defective while being used in Wisconsin,
Defendant shipped yet another engine to Wisconsin for installation and use in Wisconsin,
30, After this second engine was discovered to be defective while being used in Wisconsin,
a lawsuit was brought against Defendant in Wisconsin for damages resulting from the failure of
Defendant's products after being shipped, installed, sold, and used exclusively in the State of
Wisconsin,
31. All transactions and occurrences associated with the alleged wrongdoing by the
Defendant occurred entirely within the boundaries of the State of Wisconsin,
32, All witnesses associated with the alleged wrongdoing, with the exception of
Defendant, are located within the boundaries of the State of Wisconsin,
33, The above actions constitute the conducting of business in the State of Wisconsin.
34, Defendant's actions in the State of Wisconsin were not random, fortuitous, or
attenuated; to the contrary, Defendant's actions constituted the intentional and calculated conduct of
. business in the State of Wisconsin,
35, Defendant purposely directed its activities at residents of the State of Wisconsin within
the boundaries of the State of Wisconsin and availed itself of the privileges of conducting activities
within the State of Wisconsin, thus invoking the benefits and protection of its laws,
.. .
.JI .Cornpt.. ttime 1 InQ'Of 2 for addItIonII ttMoil.
1 .CompfeC.1ttnw 3,41. and 4b.
I .Pritt yap' narnlll'ld edd..... on the fWV'Il'M oflNl tonn 10 t1It WI can f1Cumltlll
card 10 you.
oAltacl1Ihlt _10 tho IIonI 01 tho moIIpIoco, Ot onlllo bad: K _ _ not
oe::;:.iJtfUm Rtof/pI IlIquooIod' on tho moIpIoco _lho 0I1ld0.......
l o"!l1o RoIum R...,pC wl' oItow I. """'" tho 0I1ld0 WIO _ oneS tho_
S doI_.
I 3.~, ~!18d 10:
j, 1'). K€e;SIC1l r. 1-
I Lj. &:-t.8h cameron ~1f(l(.1i'\"
. r-!arnSWt5) A4 II 10 I
I also wish 10 ,ecelve 1ht
loIIowIng Hrv(cel (for on
1m IH):
1, Cl Add,.....'. Addr_
2. Cl RIIlrIctod DellYlry
ConIuIt pos1maItar for IH,
48, cll Numbe,
3lD'7 516t (oO~
4b, Service Type
Cl RogIstered )6 Certl"-lf '
Cl Expr811 Mol Cl IneuredI
[J RetIIn 10, Men:fland. Cl COD
7, Del of e1lY1ry
5. Received By: (Prinl NBm6)
8, Add, 'I Addreaa (Only If rtqlHllJlad
lUId fHl8 psJd)
6. Slgnatu
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PS FORn 3811, Decembe'l994
102595-97-8-0179
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P 367512' 633
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:l: TOTAL POS\89Q.1e
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to the truth of the averment as the information is solely within
the possession of the Plaintiff. Proof is demanded.
24. Denied.
The averment constitutes a conclusion of law
to which no answer is required, To the extent that an answer is
required, notification sent to counsel who had not filed an
appearance on behalf of the Defendant, was not in compliance
with the rule and as set forth in answer to paragraph 23 above,
the Defendant did not receive the actual notice nor was he aware
of same until filing of the Plaintiff's Answer and New Matter on
December 3, 1998, Therefore, Defendant submits that his
Petition to Vacate should not be considered untimely,
demanded.
25, Denied. After reasonable investigation, the Defendant
is without knowledge or information sufficient to form a belief
Proof is
as to the truth of the averment.
Defendant further avers that
it is of no relevance whether the Plaintiff intentionally failed
to give Notice or whether Plaintiff's counsel was aware of the
Prothonotary's practice regarding service, Proof is demanded.
26, The averment constitutes a conclusion of law to which
no answer is required, To the extent that an answer is
required, Plaintiff denies that the Judgement results from a
3
reasonable investigation Defendant is without knowledge or
information sufficient to form a belief as to the truth of the
averment. Proof is demanded,
30. Denied. It is denied that the second engine shipped
to the Plaintiff was defective and, in fact, based upon
information received from the Plaintiff about the ultimate
installation, it is believed that. the failure of the engine in
both cases was due to running the engine without sufficient oil,
causing the engine to lock up, Based upon information received,
it is admitted that Defendant filed a law suit in Wisconsin,
however,
after reasonable investigation,
the Defendant is
without sufficient knowledge or information to form a belief as
to the tr.uth regarding the shipping, installation, sale or use
of the engine in Wisconsin. Proof is demanded.
31. Denied, After reasonable investigation, Defendant is
without sufficient knowledge or information to form a belief or
information to form a belief as to truth of the averment, Proof
is demanded.
32, Denied, After reasonable investigation, Defendant is
without sufficient knowledge or information to form a belief or
5
information to form a belief as to truth of the averment. Proof
is demanded.
33. The averment constitutes a conclusion of law to which
no answer is required.
34, Denied, The averment constitutes a conclusion of law
and fact to which no answer is required, To the extent that an
answer is required as set forth in Defendant's Petition to
Vacate, contact was initiated by the Plaintiff, the Defendant
does not regularly do business or advertise its business in
Wisconsin, the request by the Plaintiff and the shipping of said
engine constitutes the only time Defendant has ever done any
business in Wisconsin, the Defendant has no place of business in
the state of Wisconsin, and had the engine been properly
installed, it is the Defendant's belief that it would not have
been necessary to replace either the initial engine or its
replacement or have any further contact with the state of
Wisconsin. Proof is demanded.
35. Denied. The averment constitutes a conclusion of law
and fact to which no answer is required, To the extent that an
answer is required the Defendant denies having directed its
activities at the residents of the state of Wisconsin and as set
6
AFFIDAVIT
AND NOW, this ZZ.u day of IJee,-t./J.u.4-<.,\..../
, 1998, Steven
Schaffer, deposes and says that he is an employee of J,K,
Precision at 14 South Cameron Street, HarriSburg, Pennsylvania
17101 and that on or about, October 14, 1998, he signed for a
certified letter addressed to J.K. Precision knowing that he was
not authorized to do so.
He further deposes and says that he
did not deliver the certified letter to his employer, nor did he
advise the employer that he received such a letter and
completely forgot having received same until it was brought to
his attention as a result of Plaintiff's Answer and New Matter
to Petition to Vacate filed on December 3, 1998,
IN WITNESS WHEREOF, I have set my hand and seal the day and
year first above written,
SWORN and subscribed to
befoj\e me, this Z2rJ day
of k).((!.1.-n~ , 1998,
(?UA.AA(dA A -r: ~~{d-t<...U~
Notary Pu lic
sti!!::i/!:- 4
NOTARIAL SEAL
CASSANDRA 1. ROSENBAUM, Notary Public
Mlddlelown, Dauphin County
My Ooml1llU!oh ElIlllrn Omll1b;f 4, ~ggg
DLJ:ctr
Weiser 15858:WeisAffi
EXHIBIT "A"
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STATE' OF WISCONSIN
CIRCUIT COURT
SAUK COUNTY
Plalntl" (Names and Addresses):
Phona No.: (60l:l-722-4:;44
Diord'~ ~holooRle ~n~ine Ex.
55614 F:I;kos l'oak Rd.~,
North b'rl:!cd.om, ':Ii.53951
.ys.
Delendent (Nemes end Addresses)
J' .K. :i'rocision
Rear 415 230:3ler Avenue
Lemoyne,Pa. 176,55
SUMMONS AND COMPLAINT
SMALL CLAIMS
1'3 s e .:;.40
Case No.
TO:
F'lrD 0 Claim Unde, Oolla, L1mil
I; 0 Replevin
o Eviction
FEB 1 0 19980 Re: A,blt,atlon Award
Sauk Co" WI Cln:uit Court
Donna Mus/Ie
SUMMONS
31001
31003
31004
31006
To the Defendant:
You are being sued as described below. If you wish to dispute this mailer:
1. You must appear at the time and place stated. (and/or) .
2. You may file a written answer to the Clerk of Courts office on or before
the date and at least two hours before the time statell, on this form.
(A duplicate copy must be provided to the plalntifflattbrrwy.) .
If you do no.t appeal or answer, a judgment may be granted to the' plaintiff.
When to A
Dale
.3 ,';fjJff
Place to A
ear
Time
11 :30 a,m,
ear
.-....<<..u.~
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Dale Summons Issued Data Summons Mailed
SAUK COUNTY COURTHOUSE
515 OAK STREET
BARABOO, WI 53913
t
COMPLAINT
Intlff's Demand:
e plaintiff states the following claim against the defendant:
1. Plaintiff demands Judgment for: (Check as appropriate.)
Xl Money $ ~925.00 0
.
Eviction 0 Return of property (Describe in 2. below.)
(Not to Include !j425.205. Stets. ectlons to "",over cOlloto,al.)
o Confirmation, vacation, modification or correction of arbitration award.
s attorney fees $ ; costs of this suit $ r;9, 0 C
a such other relief as the Court deems roper.
2. Brief statement of dates and facls: On. or about 7/3/97 vie purchased from. ~,.K.Precesio
all engine for a 1988 Toyota Truck(TY2958CP). Upon. installation the engine
would not turn over I;l;U first, but later' on. i'~ did, al thov.gh now it a.idn't
have sny: oil pressure. We called J .K.Precision. andinformed them of' our
problem. Ij~hcy 2.uthorized us to purchase s. new oil pump rmd installi:lt, v/hi.ch
me(m.t pulling the engine back out again. After doing this we found out two
).lroblems. leTho origin2,l oil pump Vias installed wron~;:, which c:;"used the
problem in the first .plD.ce.2.Now the beD,rings werc b8.d.. 'de he.d to send this
engine bacle to J .E./'recifJion 8nd they sent us another which I,Jr'.Klitzke inst.".
cd and that one wv,s also bad. All during trd time Jerry' Weiser owner of
~ Mark box if aCfdilional information is attached.
-f-
; /XJ sheriff's fees;
Law Firm and Address
Attorney's Stale Bor Number
Subscribed and sworn to belora me
O?' ,&ti'v ('/~1 (..:A/Vol.' l/ ~/, IF)!?
l ,".",.:.(-'... C/;'fi"'J' 'f.",' .L(
NOI~' PiJbHc, Slale of Wisconsin or Deputy Clerk
My commission expires:
FORM NO. 5COo-121493
Verification: Under oalh, I slate Ihal the above complalnllslrue, except as those mailers
stated...!!P05f' etlon and bellel, and as to thosa matters, I. believe lh .em. 10be.l.rue
I am: U p'lalnll 0 attorney for Ihe plalnlltr. .
... /} v
i TJ'21'J.1l.1r.'t 't5.-1 p/L.OL
SIgnature of Plalnllff/Allorney " ,
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04905
PI2~CI::5ro-
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PURCHASE ORDER
KI.I'TZKE METAL ,AS.
E10210A HWY. 138
BARABOO, WI 53913
PH. (608) 356-5292
ADDRESS
DATE
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DATE REOUIRED
/ /
TERMS
CAS/!.
CIT_V, }lTATE..z% - /l
vV. reC6../<!5
HOW SHIPPED REO. NO. OR DEPT.
FOR
CITY, STATE, ZIP
QUANTITY
DESCRIPTION
lOt>,
Fi f"::I- /';}J,; r- 0"" ~(R~O;/ 11........ F;;. '"
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1fltr":2t:1fLme>~R.. r;j):rc.0!C~ [),IkNtOZ5 <;t. 7b..w
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ep-''''<..r~~ID..c.N()1 .'oJ "..:,~k..d t..S'-:' l1.bJ.w../6t2b-c~ '.
:tb6_~~okc=-c:,cM7 .w1~c-&-._I.9-=1.
IMPORTANT
. PURCHASE ORDER NUMBER MUST APPEAR
ON ALL INVOICES - PACKAGING, ETC.
PLEASE NOTIFY US IMMEDIATELY IF YOU ARE
UNABLE TO COMPLETE ORDER BY DATE
SPECIFIED
PLEASE SEND COPIES OF YOUR.d.
INVOICE WITH ORIGINAL Bill OF LADING. .
?URCHASING AGENT
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DC 8'3'
ORIGINAL
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In hC'.:1L,.J.O:!.~1~ our "):~'Q~,leu. :~.1":.1c~r ',-!oulo. not return pl10no "{;'l;.tls or
. .'o:~r; O~1."~ '::~:'Gn '.:8 co.lled.
i-[OY! e.:fter ti!/J :"~ccon<.:. :t:',iJ:",'.rc 0:;:' I'r .I'~.':3 811e:ine, our cur.tomnr
Klit~!::G: i,~otr.l :...i'-:.~'J. ;.; ':;hcir cU3tor,lcr ju~t r::'.'nt '~heir money bFl.clc.
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BIE~D'S ~.".~.!OLr::3.,''..!..~ E~:G~~E E:':(:II:'.-I':fGE
P,O. 80x 228
~~R!'-BOO, WI 53913
(~,:I.:;' 3~:~.l'; 3...1 (,:100) ,14'~.1 '.i3 3
CUSTOMER'S ORDER NO.
PHONE
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STATE OF WISCONSIN
Bierd's Wholesale Engine' Ex, vs J, K,
Precision
CIRCUIT COURT
SAUK COUNTY
SMALL CLAIMS JUDGMENT
Case No, 98SC000240
A Judgment for money was entered EIlED98 as follows:
In favor of lc,edltor):
Blerd's Wholesale Engine Ex.
55614 Pikes Peak Road
North Freedom, WI 53951
MAR 2 3 1998 C,edlto,'. allorney:
SaUK Co., WI Circuit Court
Donna Mueller. Clerll
Against ldebto,):
J, K, P,eclslon
Rear 415 Bosle, Avenue
Lemoyne, PA 17055
Debtor's allorney:
Judgment emount
Service
Small claims filing f..
Totel
4925.00
30.42
59.00
$5,014.42
Comments:
BVTHECO~ 4 ~
Circuit Court Judge/Commissione'/Cle'k
03-23,1998
Date
SlIl8 of WIIconIIn } SS
0lM1Iy 01 Sat!
1lIIlI doc:lJnent, ~ b3en compared by me, III ~
custodian, wI1I1 tho origlnil 00 file and of ,ecoid In my ofllCe.
Is a true orlgInal.
o.-!--b'n lQ~
By
SC.510101. 9/94 Small Claims Judgmanl
I 799,24 Wisconsin 51atutllS
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Notes I If real property, supply six copies of description including improvE!lrents and an
original and copy of affidavit of ownership (PaR.C.P. No. 3129).
If lengthy personalty list, supply four copies of list.
To index writ, file separate praecipe with writ.
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WRIT OF EXECUTION and/or ATTACHMENT
COMMONWEALTH OF PENNSYLVANIA)
COU~JTY OF CUMBERLAND)
NO. 98-3359 CIVIL lroc--.1'erm
CIVIL ACTION. LAW
TO THE SHERIFF OF
Cumberland
COUNTY:
To sallsfy tho dobt, Into rest and costs due Bierd I s Wholesale Engine Exchange
from J K Precision, Rear 415 Bosler Avenue, LellOvne, PA 17055
PLAINTIFF(S)
DEFENDANT(S)
(1) You are direcfed to levy upon the property of the defendant(s) and to sell any and all personal
or business property found upOn Defendant's premises located at Rear 415 Bosler
Avenue, Lenoyne, PA 17055
(2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of
GARNISHEE(S) as follows:
and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is'are enjoined from paying any
debt to or for the account of the defendant(s) and from delivering any property of the defendant(s) or otherwise disposing
thereof;
(3) II property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other
than a named garnishee. you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above
stated.
Amount Due $5,014.42
Interest $121.17
Ally's Comm %
Atty Paid $1::> so
Plainlill Paid
L.L.
Due Prothy
Other Costs
$.50
$1. 00
Date:
All9'1'Rt ] 7. ] 998
Curtis R. IDnq
Prothonotary, Civil Division
8K Ao-v. 0 ~ 0. ~ C"YJ/klL< r-
Deputy
REQUESTING PARTY:
Name Carl C. Risch, Esq.
Address: Ten East Hiqh Street
Carlisle, PA 17013
AlIorney for: Plaintiff
Telephone: 717-243-3341
Supreme Court 10 No. 75901
R. Thonas Kline, Sheriff, who being duly sworn according to law,
states this writ is returned NULLA In'lA. Defendant moved to Dauphin County.
Sheriff's Costs:
lXlcketing
Poundage
Law Library
Prothonotary
Service
Surcharge
$18.00
.71
.50
1.00
9.92
6.00
$36. 13
Sworn and Subscribed to Before Me
This ~ Day of If>-;;:'''L. ,
,
1998, A.D.g'r ' a.. ~~
I
Advance Costs:
Sheriff's Costs:
$150.00
36.13
$113.87
REfund to atty on 9-18-98
So An~._
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R. Thomas Kline, S~e~
BY~()C~ ~K
puty Sheriff
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BIERD'S WHOLESALE ENGINE
EXCHANGE,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
plaintiff
V.
NO. 98-3359-CIVIL TERM
J.K. PRECISION,
Defendant
PRAECIPE TO SUBSTITUTE VERIFICATION
Please substitute the attached verification signed by Jerrold
S. Weiser, owner of J.K. Precision, Defendant, in the Petition to
Vacate Judgment.
Respectfully submitted,
pannebaker and Jones, P.C.
By: jf
Donald L.
ID #24415
4000 Vine Street
Middletown, PA 17057
(717) 9-14-1333
ctr:Weiser:15858:Praell17
BIER D'S WHOLESALE ENGINE
EXCH.,
PLAINTIFF/RESPONDENT
V.
J.K. PRECISION,
DEFENDANT/PETITIONER
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
98-3359 CIVIL TERM
IN RE: PETITION TO VACATE FOREIGN JUDGMENT
ORDER OF COURT
AND NOW, this ~day of February, 1999, IT IS ORDERED that the Rule
issued against plaintiff/respondent to show cause why the petition of
defendant/petitioner to vacate the foreign judgment should not be granted, IS
DISMISSED. The petition to vacate the foreign judgment, IS DENIED.
By the cou~1:l
~
Edgar B. Bayley, J.
Carl C. Risch, Esquire
For Plaintiff/Respondent
Donald L. Jones, Esquire
For Defendant/Petitioner
~4 e..;UU d.jl'/.t;9
i;"
:saa
98-3359 CIVIL TERM
Promptly upon the filing of the foreign judgment and the
affidavit, the clerk shall mall notice of the filing of the foreign
judgment to the judgment debtor at the address given and shall
make a note of the mailing in the docket. The notice shall include the
name and post office address of the judgment creditor and the attorney
for the judgment creditor, if any, in this Commonwealth. In addition,
the judgment creditor may mall a notice of the filing of the judgment
to the judgment debtor and may file proof of mailing with the clerk.
Lack of mailing notice of filing by the clerk shall not affect the
enforcement proceedings If proof of mailing by judgment creditor
has been flied. (Emphasis added.)
Section 4306(b) of the Act provides:
Filing and status of foreign judgments.--A copy of any foreign
judgment including the docket entries incidental thereto authenticated in
accordance with act of Congress or this title may be filed in the office of
the clerk of any court of common pleas of this Commonwealth. The
clerk shall treat the foreign judgment in the same manner as a judgment
of any court of common pleas of this Commonwealth. A judgment so
filed shall be a lien as of the date of filing and shall have the same
effect and be subject to the same procedures, defenses and
proceedings for reopening, vacating, or staying as a judgment of any
court of common pleas of this Commonwealth and may be enforced
or satisfied in like manner. (Emphasis added.)
The Prothonotary did not mail defendant a notice of the filing of the foreign
judgment on June 16, 1998. Plaintiff issued a writ of execution on August 17, 1998,
without defendant having ever been notified of the entry of the judgment as required
by Section 4306(c)(2) of the Foreign Judgment Act. The Prothonotary has never
mailed notice of the filing of the judgment to defendant nor has plaintiff ever filed with
the Prothonotary proof of the mailing of a notice of the judgment to defendant as
authorized by Section 4306(c)(2) of the Act. Notwithstanding, plaintiff maintains in its
pleadings that an employee at defendant's place of business signed a certified mail
-2-
98.3359 CIVIL TERM
receipt on October 14, 1998, that contained a notice of the entry of the foreign
Judgment four months earlier. Based on that pleading which was answered by
defendant, plaintiff maintains that defendant's petition to vacate the judgment that was
filed on November 17,1998, was more than thirty days from October 14, 1998, and
violates the Judicial Code at 42 Pa.C.S. Section 5505, titled "Modification of orders,"
that provides:
Except as otherwise provided or prescribed by law, a court upon
notice to the parties may modify or rescind any order within 30 days
after its entry, notwithstanding the prior termination of any term of court,
if no appeal from such order has been taken or allowed. (Emphasis
added.)
Section 5505 of the Judicial Code applies to court orders. There was no court
order in this case; therefore, Section 5505 is not applicable.1 Jurisdictional challenges
can be made in the receiving state to a foreign judgment. Greate Bay Hotel and
Casino, Inc. v. Saltzman, 415 Pa. Super. 408 (1992). Under Section 4306(b) of the
Foreign Judgment Act, such judgments may be vacated in the same manner as any
judgment entered in the court of common pleas. Tandy Computer Leasing v.
DeMarco, 388 Pa. Super. 128 (1989). There is no set time limit to file a petition or
vacate a foreign judgment. Even if defendant filed its petition to vacate the judgment
thirty-four days after notice of the filing was received by its employee, and again we
note that proof of the mailing of any notice has not been filed with the prothonotary
1. If a judgment is stricken it becomes a final order under Section 5505 if there
is no appeal within thirty days. Hamm v. CRA Security Systems, 95-7095 Civil,
Bayley, J., opinion filed January 14, 1997.
-3-
98.3359 CIVIL TERM
as required by Section 4306(c)(2) of the Foreign Judgment Act, we still have authority
to decide a jurisdictional attack on the judgment.2
If personal jurisdiction over defendant did not exist In Wisconsin, then the
foreign Judgment will not be accorded full faith and credit in Pennsylvania. First
Fidelity Bank N.A. New Jersey v. Standard Machine & Equipment, 398 Pa. Super.
607 (1990). Whether to accord full faith and credit to a judgment of another state
where the judgment is challenged for lack of personal jurisdiction requires a
determination of the jurisdiction of the rendering court by reference to that state's law.
Tandy Computer Leasing v. DeMarco, supra. The United States Supreme Court in
International Shoe v. State of Washington, 326 U.S. 310 (1945), set forth a two-fold
test for formulating the minimum contacts necessary to assert personal jurisdiction:
(1) defendant has "certain minimum contacts with the foreign state" and (2) the
maintenance of the suit does not offend "traditional notions of fair play and substantial
justice." In Burger King Corp. v. Rudzewlcz, 471 U.S. 462 (1985), the Supreme
Court held that jurisdiction over a foreign defendant is proper where the contacts
"approximately result from actions by the defendant himself that create a 'substantial
2. As set forth in Tandy Computer Leasing v. DeMarco, supra, a petition to
vacate a foreign judgment pursuant to 42 Pa.C.S. Section 4306(b) is not the same as
a petition to open a judgment because a foreign judgment cannot be challenged on
the merits in the receiving state, The effect of vacating a foreign judgment is the
equivalent of striking a judgment, but unlike a petition to strike which is limited to a
fatal defect on the face of the record, U.K. LaSalle Inc. v. Lawless, 421 Pa. Super.
496 (1992), a petition to vacate a foreign judgment constitutes the means of
challenging the jurisdiction of the court in the rendering state.
-4-
98.3359 CIVIL TERM
apparently transacts business by mail. . . defendant's gross
sales to this single customer averaged less than $2,000 annually
prior to 1969; in 1969 the gross sales were approximately
$4,500 . . . defendant's contacts with Wisconsin have been
almost exclusively with a single customer. . . [and] have
been conducted by a mail order arrangement, with defendant
sending catalogs to its customer, and the customer ordering
defendant's materials by mail.
Petitioner, in the case sub iUdice, argues that it did not have sufficient minimum
contacts in the state of Wisconsin for the court in Sauk County to have Jurisdiction to
enter the default Judgment in favor of respondent on March 23, 1998, because:
[t]he Defendant does not regularly do business or advertise its business
in Wisconsin, in fact, this was the first and only time he has ever done
business in Wisconsin; Plaintiff initiated the contact with Defendant to
request an engine manufactured by Defendant; Defendant's only place
of business is in Pennsylvania; the engine was manufactured in
Pennsylvania; Defendant owner did not travel to Wisconsin for the
purpose of transacting business and the Defendant did not anticipate or
promote any future activity in Wisconsin.
If these facts were established in this record, we would, based on the foregoing
authorities, agree with petitioner that the foreign judgment from Wisconsin would have
to be vacated because there was no personal jurisdiction over it in that state.
However, Rule of Civil Procedure 206.7(c) provides:
If an answer is filed raising disputed issues of material fact, the petitioner
may take depositions on those issues, or such other discovery as the
court allows, within the time set forth in the order of the court. If the
petitioner does not do so, the petition shall be decided on petition
and answer and all averments of fact responsive to the petition and
properly pleaded In the answer shall be deemed admitted for the
purpose of this subdivision. (Emphasis added,)
Because petitioner did not take depositions as authorized by the Rule to show
-6-
98-3359 CIVIL TERM
cause that was issued against respondent pursuant to Pa. Rule of Civil Procedure
206.6, we must decide its petition to vacate the foreign Judgment on the petition and
answer, and averments of fact responsive to the petition and properly pleaded in the
answer are deemed admitted. Petitioner averred in paragraph 12 of its petition to
vacate the judgment:
The Defendant, J.K. Precision, did not have sufficient minimum
contacts with the State of Wisconsin. The Defendant does not regularly
do business or advertise its business in Wisconsin, in fact, Plaintiff
Initiated the contact with Defendant to request an engine
manufactured by Defendant. This Is the only time Defendant has
ever done business In Wisconsin and Defendant only has a place of
business In Pennsylvania. (Emphasis added.)
Respondent answered Paragraph 12 as follows:
Denied. The allegations in Paragraph 12 partially constitute .
conclusions of law to which no response is required. To the extent the
allegations in Paragraph 12 constitute factual allegations, Plaintiff lacks
sufficient knowledge to either admit or deny the allegations and
therefore the allegations are denied. (Emphasis added.)
The first sentence of the averment in paragraph 12 is a conclusion of law, not a
fact; therefore, no response was required. Pa. Rule of Civil Procedure 1029(a). The
first part of the second sentence is properly denied under Pa. Rule of Civil Procedure
1 029 (c) , that provides, "A statement by a party that after reasonable investigation the
party is without knowledge or information sufficient to form a belief as to the truth of
an averment shall have the effect of a denial." That part of the second sentence that
states "[i]n fact, Plaintiff initiated the contact with Defendant to request an engine
manufactured by Defendant," is not denied because respondent knows whether it
-7.
98.3359 CIVIL TERM
initiated contact with petitioner to buy the engine. Reliance on Rule 1029(c) does not
excuse the failure to admit or deny a factual allegation when it is clear that the
pleader must know whether a particular allegation is true or false. Cercone v.
Cercone, 254 Pa. Super. 381 (1978). The third sentence of paragraph 12 is properly
denied because respondent would not know if petitioner had ever done business in
Wisconsin or that petitioner only has a place of business in Pennsylvania. In
summary, as to the petition and answer, respondent, who is in Wisconsin, has
admitted only that it initiated the contact with petitioner, who is in Pennsylvania, to
request an engine manufactured by petitioner.
Respondent filed new matter to the petition to vacate the foreign judgment,
averring:
26. This judgment results from a transaction between the parties
within the boundaries of the State of Wisconsin.
27. On or about July 3, 1997, the Plaintiff purchased from
Defendant an automotive engine. This engine was shipped from
Pennsylvania to Plaintiff in Wisconsin.
28. After Plaintiff received the engine in Wisconsin, the engine
was sold to a customer in Wisconsin who installed it in another
customer's vehicle, also a resident of Wisconsin. The engine was then
used exclusively in Wisconsin.
29. After the engine was discovered to be defective while being
used in Wisconsin, Defendant shipped yet another engine to Wisconsin
for installation and use in Wisconsin.
30. After this second engine was discovered to be defective while
being used in Wisconsin, a lawsuit was brought against Defendant in
Wisconsin for damages resulting from the failure of Defendant's
products after being shipped, installed, sold, and used exclusively in the
State of Wisconsin.
All of these facts are deemed admitted by petitioner pursuant Pa. Rule of Civil
-8-