HomeMy WebLinkAbout00-05733
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DICKlNSON COLLEGE,
Plaintiff
: IN TIlE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
CML ACTION - LAW
TIMOTIIY E. KELLY and
KILLIAN S. KELLY,
Defendants
: NO: ClC - .t~ J..3
Cu;lY~
NOTICE TO DEFEND
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 objec-
tions to the claims set forth against you. You are warned that if you fail to do so, the case may proceed
without you and a judgment may be entered against you by the Court without further notice for any money
claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money
or property or other rights important to you.
YOU SHOULD TAKE TIllS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE
A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE TIlE OFFICE SET FORTIl
BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
Telephone: (717) 249-3166
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AVISO
USTED HA smo DEMANDADO/ A en corte. Si usted desea defenderse de las demandas que se
presentan mas adelante en las siguientes paginas, debe tamar accion dentro de 10s proximos veinte (20) dias
despues de 1a notificacion de esta Demanda y A viso radicando personalmente 0 por medio de un abogado
una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, 1as demandas
presentadas aqui en contra suya. Se Ie advierte de que si usted falla de tomar accion como se describe
anteriormente, el caso puede proceder sin usted y un fallo por cua1quier suma de dinero rec1amada en la
demanda 0 cua1quier otra reclamacion 0 remedio solicitado por el demandante puede ser dictado en contra
suya por la Corte sin mas aviso adicional. Usted puede perder dinero 0 propiedad u otros derechos
importantes para usted.
USTED DEBE LLEV AR ESTE DOCUMENTO A SU ABODAGO IMMEDIATAMENTE. SI
USTED NO TIENE UN ABOGADO 0 NO PUEDE PAGARLE A UNO, LLAME 0 VAYA A LA
SIGUlENTE OFICINA PARA A VERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
Telephone: (717) 249-3166
McNEES, WALLACE & NURICK
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Charles T. Young, Jr. Esquire
Attorney J.D. No.80 0
100 Pine Street
P. O. Box 1166
Harrisburg, PA 17108-1166
(717) 232-8000
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By
Attorneys for Plaintiff
Dickinson College
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DICKINSON COLLEGE,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
CML ACTION - LAW
TIMOTHY E. KELLY and
KILLIAN S. KELLY,
Defendants
: NO.
COMPLAINT
I. Plaintiff Dickinson College ("Dickinson") is a Pennsylvania educational institution with its
principal offices located in Carlisle, Cumberland County, Pennsylvania 17013.
2. Defendant Timothy E. Kelly ("Parent") is an adult individual whose last known address is
South Rural Route 118, Box 112 # 6340, Tempe, Arizona 85283.
3. Defendant Killian S. Kelly ("Student") is an adult individual whose last known
address is 2302 Sonoma Street, Honolulu, Hawaii 96822.
COUNT I
DICKINSON COLLEGE V. TIMOTHY E. KELLY
BREACH OF CONTRACT
4. Paragraphs I through 3 are incorporated herein by reference as if set forth in full below.
5. On or about August 14, 1990, Parent entered into an Educational Goods and Services
Retail Installment Contract ("Contract I ") for expenses incurred for goods and services to be provided
and rendered to his daughter Killian Kelly, by Dickinson during the 1990-91 academic year. A true and
correct copy of the contract is incorporated by reference and attached as Exhibit /lA. "
6. Under the terms of Contract I, Parent as "Buyer" agreed to pay Dickinson Seven
Thousand Dollars ($7,000.00) with a variable interest rate, in one hundred fifty-three (153) equal
monthly installments of Eighty Eight Dollars and Sixty-Four Cents ($88.64) commencing on September
28, 1990.
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7. On or about October 9, 1991, Parent entered into an Educational Goods and Services
Retail Installment Contract ("Contract 2") for expenses incurred for goods and services to be provided
and rendered to his daughter Killian Kelly, by Dickinson during the 1991-92 academic year. A true and
correct copy of the contract is incorporated by reference and attached as Exhibit "B."
8. Under the terms of Contract 2, Parent as "Buyer" agreed to pay Dickinson Seven
Thousand Dollars ($7,000.00) with a variable interest rate, in one hundred forty (140) equal monthly
installments of Eighty Six Dollars and Ninety One Cents ($86.91) commencing on October 28, 1991.
9. Section II of the Contracts provides that, "If a payment is more than 15 days late, a sum
equivalent to 5% of the late payment (but no more than $2.50 and not less than $1.00) may be charged."
10. Section VI, Paragraph 3(a) of the Contracts provides that, "Buyer shall be deemed to have
committed an 'Event of Default' of the Contract upon the occurrence of any of the following: (a) failure
to make any payment on or before the date it is due,..."
11. Section VI, Paragraph 4 of the Contracts provides that if an Event of Default of the Contract
occurs, and is not cured by the Buyer pursuant to the Notice of Default, Dickinson has "the right to
declare all sums due on the Contract to be immediately due and payable."
12. Parent defaulted on the Contract by failing to make the required monthly payments on the
Contract when due.
13. Dickinson notified Timothy Kelly of his default under the loan and demanded payment
thereunder, but Defendant Timothy Kelly has failed and refused to make such payment.
14. Parent has failed to cure such defaults.
15. Therefore Dickinson has exercised its right to declare all sums due on the Contracts to be
immediately due and payable.
16. The total amount which has become immediately due and payable to Dickinson by Parent
pursuant to the Contracts is Twenty Four Thousand Nine Hundred Eight Dollars and Thirty-two Cents
($24,908.32), which includes principal in the amount of Sixteen Thousand Five Hundred Seventy Two
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Dollars and Ten Cents ($16,572.10), interest in the amount of Seven Thousand Seven Hundred Thirteen
Dollars and Twenty-two Cents ($7,713.22), late fees in the amount of Six Hundred Twenty Three Dollars
($623.00), plus reasonable attorney's fees and collection costs.
WHEREFORE, Plaintiff Dickinson College demands judgment against Parent Timothy Kelly in
the sum of Twenty Four Thousand Nine Hundred Eight Dollars and Thirty-two Cents ($24,908.32), plus
interest from August 10, 2000, at the rate of$2.39 per day, late fees, costs of suit, attorneys' fees and
collection costs.
COUNT IT
DICKINSON COLLEGE V. KILLIAN S. KELLY
BREACH OF CONTRACT
17. Paragraphs 1 through 16 are incorporated herein by reference as if set forth in full.
18. Killian Kelly, by signing as a co-signor of Contract 1 and Contract 2, agreed to repay
all amounts due on the loans if Timothy Kelly failed to do so in accordance with the terms of the
respective notes.
19. Because Parent has failed to make payments due causing the Contract to be in
default, Student is obligated to repay all amounts due under the Contract.
20. Dickinson notified Killian Kelly of Parent's default under the loan and demanded payment
thereunder, but Defendant Killian Kelly has failed and refused to make such payment.
21. The total amount which has become immediately due and payable to Dickinson by Student
pursuant to the Contracts is Twenty Four Thousand Nine Hundred Eight Dollars and Thirty-two Cents
($24,908.32), which includes principal in the amount of Sixteen Thousand Five Hundred Seventy Two
Dollars and Ten Cents ($16,572.10), interest in the amount of Seven Thousand Seven Hundred Thirteen
Dollars and Twenty-two Cents ($7,713.22), late fees in the amount of Six Hundred Twenty Three Dollars
($623.00), plus reasonable attorney's fees and collection costs.
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WHEREFORE, Plaintiff Dickinson College demands judgment against Student Killian Kelly in
the sum of Twenty Four Thousand Nine Hundred Eight Dollars and Thirty-two Cents ($24,908.32), plus
interest from August 10,2000, at the rate of $2.39 per day, late fees, costs of suit, attorneys' fees and
collection costs. costs of suit, attorneys' fees and collection costs.
COUNT ill
DICKINSON COLLEGE V. KILLIAN S. KELLY
IN QUANTUM MERUIT
In the alternative, if this Honorable Court should determine that an express contract between
Dickinson and Killian S. Kelly does not exist, which is denied, Dickinson pleads the following Count In
Quantum Meruit.
22. Paragraphs 1 through 21 are incorporated herein by reference as if set forth in full.
23. Having requested Dickinson to loan money, and doing so to the benefit of Killian S.
Kelly, Student became liable to Dickinson for said money.
24. Killian S. Kelly has been unjustly enriched by accepting said money without paying
Dickinson reasonable compensation therefor.
25. The total amount by which Killian S. Kelly has become enriched on account of the
money loaned is Twenty Four Thousand Nine Hundred Eight Dollars and Thirty-two Cents ($24,908.32).
26. Dickinson has demanded payment of the above sums but Killian S. Kelly has failed
and refused to do so.
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WHEREFORE, Plaintiff Dickinson College demands judgment against Student Killian Kelly in
the sum of Twenty Four Thousand Nine Hundred Eight Dollars and Thirty-two Cents ($24,908.32), plus
interest from August 10, 2000, at the rate of $2.39 per day, late fees, costs of suit, attorneys' fees and
collection costs. costs of suit, attorneys' fees and collection costs.
McNEES, WALLACE & NURlCK
By
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Charles T. Young, Jr. squire
Attorney LD. No.80 0
100 Pine Street
P. O. Box 1166
Harrisburg, P A 171 08-1166
(717) 232-8000
Attorneys for Plaintiff
Dickinson College
Dated: AIJGUS T" 17, 2000
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DICKINSON COI..LB3E FLEXIBLE FINANCING SYSIDI - 7000 PLAN
EDUCATIONAL GOODS AND SERVICES RETAIL INSTAILMENT CONrRACT
Date August 14, 1990
1.
Seller:
Dickinson College, Carlisle, Pennsylvania 17013
Timothy E. Kelly
9501 S. Stanley Place
Tempe, Arizona 85284
Buyer (s) :
If there is more than one Buyer. each of you will be obligated, jointly and severally.
for all 5'Ul1lS due and for the performance of all agreements as provided in this Contract.
Under the terms of this ,lliucational Goods and Services Retail Installment Contract,
you have agreed to pay the expenses incurred for goods and services to be provided and
rendered. as the case may be, to Killian S. Kelly
(hereinafter "Student") during his/her enrollment at Dickinson College during the 1990-91
academic year. including tuition. room and board. books and supplies as herein stated
(hereinafter the "Goods and Services").
The Goods and Services shall include only tuition. room and board.
II. TERMS OF PAYMENT AND PAYMENT SCHEDULE
Disclosures Required by Federal Law
J.\NNUAL PERCENTAGE FINANCE CHARGE: AMOUNT FINANCED: TOTAL OF PAYMENTS: TOTAL SALE
RATE: * Dollar amount Amount of credi t Amount paid by PRICE:
Cost of credi t as credit will provided by Buyer as total. of Total cost of
yearly rate cost Buyer Dickinson College all scheduled purchase on
payments credit. in-
cluding down
, payment of
$11,630.00
10.815 % $ 5,928.50 $ 7,000.00 $ 12,928.50 $18,630.00
Rev 9/89
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Buyer's payment schedul.e will be as follows:
Number of Payments Amount of Payments
153
'Variable Rate:
Late Charge:
Prep.3.yment:
When Payments are Due
$84.50
Monthly commencing
until 5/28/03
9/28/90
The ANNUAL PERCElITAGE RATE disclosed above is a variable rate and may
change. The ANNUAL PERCENTAGE RATE may increase during the term of
this transaction if the prime rate of interest announced in the Wall
Street Ja~al as of the close of business on June 30 of each calendar
year increases, and. will be incre,3.Sed to the prime rate plus 1%. 1he
ANNUAL PERCElITAGE RATE wi 11 not increase more than once a year, and
the new interest rate will become effective on July 1 following the
increase, if any, in the prime rate of interest. Any increase wi 11 be
in the form of higher payment amounts. If your cost of the Goods and
Services sold hereunder were $ 7,000.00 at 11.00 % per annUlll for
~ months, and the prime rate plus 1% were increased. to 12.00 %.
your regular monthly payments would increase to $ 88.64 F\.l.rt.her,
the ANNUAL PERCElITAGE RATE wi 11 not increase to more than 18% or such
other rate as may be permi tted under the Pennsylvania Goods and
Services Installment Sales Act.
!f a payment is more than 15 days late, a SUlll equivalent to.5% of the
1 ate payment (but no more than $2.50 and not less than $1. 00) may be
charged.
Buyer may prepay the unpaid balance of the Amount Financed and any
FINANCE CHARGE due through the date of early payment, in full or in
part, without penalty.
SEE SEcrION VI OF THE CONTRACT BELOW FOR ANY ADDITIONAL INFORMATION AroUT NON-PAYMENT..
DEfAULT AND REQUIRED REPAYMENT BEFORE THE SCHEDULED DATE FOR REPAYMENT OF THE AMOUNT
fINANCED .
l- Cash price of Goods and Services: $ 18,630.00
.., Total down payment: 11,630.00
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3. Unpaid balance of cash price (1 - 2): 7,000.00
4. Amount pa id to others on Buyer's behalf: 0
5. Amount Financed (3 + 4): :$ 7,000.00
III. ITEMIZATION OF AMOUNT FINANCED
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IV. CREDIT INSURANCE
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Credit life insl~ance for the term of this Contract is not required.
V. NO WARRANTIES
THERE ARE NO WARRANTIES, EI1HER EXPRESSED OR IMPLIED, GIVEN BY SELLER IN CONNECTION
WITH SALE OF THE GCODS AND'SERVICES COVERED BY 1HIS CONTRACT UNLESS BUYER HAS BEEN GIVEN A
SEPARATE WRITTEN WARRANTY.
VI . ADDITIONAL PROVISIONS
1. Buyer agrees to pay Seller the Total Sale Brice by making the total down payment and
paying Seller the Total of Payments in the number and amount of monthly payments shown
in the Payment Schedule. Payments are due on or before the same date of each month as
the first payment date. Payments must be made to First Wachovia, Inc. at the
following address:
First Wachovia, Inc.
P.O. Pox 70095
Charlotte, NC 28272-0095
2. Buyer's legal rights include the right to pay all or part of the amounts due on this
Contract in advance of their due dates, toobtain a refund or credit of unearned
Finance Charge whenever the amount is paid in full in advance, and (with Seller's
consent) to reinstate the Contract if Buyer timely C1_~es any default.
3. Buyer shall be deemed to have committed an "Event of Default" of the Contract upon the
occurrence of any of the following:
(a) failure to make any payment on or before the date it is due,
(b) failure to make a payment on any other Contract outstanding with Seller.
(c) failure to perform any other provision of the Contract,
(d) providing Seller with false information or signatures,
(e) death. incompetence. or conviction of any Buyer of crime involving fraud or
dishonesty,
(f) insolvency or b3.nkruptcy of any Buyer.
4. Upon or after the occurrence of any Event of Default, Seller will provide Buyer with
notice, by certified mail as required by law. addressed to Buyer's last known address
as shown on Seller's records, advising Buyer of the default and of Buyer's right to
cure the default. The notice will prOVide the time. amount and performance necessary
to cure the default. If Buyer does not cure the default, as provided in the notice,
Seller's rights shall include the right to declare all sums due on the Contract to be
immediately due and payable. The Buyer agrees to pay all attorney's. fees and other
reasonable collection costs and charges necessary for the collection of any amount not
paid when due.
5. Waiver by Seller of any Event of Default shall not be binding upon Seller if Seller
should thereafter choose to exercise that or any other right or a similar Event of
Default occurs later. All Seller's rights and remedies shall be cumulative. Seller's
exercise of one' or more rights shall not cause Seller to lose any other rights.
6. This Contract is freely assignable by Seller. Buyer agrees that upon receiVing notice
of the assignment Buyer shall be obligated to the Assignee of this Contract.. which
Assignee shall have all of Seller's right and remedies.
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7. If 'any part of this Contra~ . is held to be illegal. void 01 ..nenforceabie. that
provision shall be deemed not to have been a part of this Contract, which shall
otherwise remain fully effective.
8. APPLICABLE LAW: This Agreement, whenever called upon to be construed, shall be
governed by the domestic internal laws of the Commonwealth of Pennsylvania except to
the extent supplemented, superseded or preempted by federal law.
9. CONSENT TO JURISDICTION.. VENUE AND SERVICE: The parties to this Agreement consent and
agree that all legal proceedings relating to t.!).e subject matter hereof shall be
maintained in the Court of Common Pleas of CUmberland County, Pennsylvania, or, if
applic.ible, the United States District Court of the Middle District of Pennsylvania,
and all parties hereto consent and agree that jurisdiction and venue for such
proceedings shall lie exclusively within said court. Service of process in any ~.~h
proceeding may be made by certified mail, return receipt requested. directed to the
respective party at the address set forth above.
10. This Contract shall be binding upon the parties hereto, their heirs, successors,
assigns and legal representatives.
11. TIME IS OF THE ESSENCE OF '!HIS CONTRACT.
NanCE: ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO AlL CLAIMS AND DEFENSES
WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GroDS OR SERVICES OBTAINED PURSUANT
HERErO OR WIlli THE PROCEEDS HEREDF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED
AMOUNTS PAID BY THE DEBTOR HEREUNDER.
NOTICE TO BUYER: (1) ro NOT SIGN TIlIS AGREEMENT BEFORE YOU READ IT OR IF IT CONTAINS ANY
BLANK SPACE. (2) YOU ARE ENTITIED TO A COMPLETELY FlUID-IN COpy OF '!HIS AGREEMENT.
(3) UNDER '!HE LAW. YOU HAVE THE RIGHT TO PAY OFF IN ADVANCE THE FULL AMOUNT DUE AND UNDER
CERTAIN CONDITIONS TO OBTAIN A PARTIAL REfUND OF THE FINANCE CHARGE..
BUYER(S) AClOOWLEroE(S) RECEIVING A COMPLETED COPY OF THIS CONTRACT AND INTEND(S) TO
BE LroALLY roUND BY ITS TERMS.
BUYER(S): ~~ 7~~
I A(,'REE TO REPAY ALL AMOUNTS DUE ON TI-lIS WAN IF THE roRROWER(S)(BUYER(S) FAILS TO
ro so IN ACCORDANCE WI'!H THE TERMS OF THE NOTE:
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STUDENT COSIGNFIifY-tV.o #1 ./ _"Pf...f (f -
DATE:
DICl<INSON COILEGE
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DICKINSON COUB3E FLEXIBLE FINANCING SYSTEM - 7000 PLAN
EDUCATIONAL GCOI:S AND SERVICES RErAIL IN5TAUMENT CONTRACT
Date
October 9, 1991
1.
Seller:
Dickinson College, Carlisle, Pennsylvania 17013
Buyer(s) :
TimothY E. Kelly
1702 E. Greentree Drive
Tempe, AZ 85284
If there is more than one Buyer. each of you will be obligated, jointly and severally.
for all sums due and for the performance of all agreements as provided in this Contr.:tct.
Under the terms of this lliucational Goods and Services Retai I Installment Contr,:tct.
YOU have agreed to pay the expenses incurred for gocds and services to be provided and
rendered, as the case may be, to Killian Kelly
(hereinafter "Student") during his/her enrollment at Dickinson College during the 1991-92
etcademic year, including tuition, room and board, books and supplies as herein stated
(hereinafter the "Goods and Services").
The Goods and Services shall include only tuition, room and board.
II. TERMS OF PAYMENT AND PAYMENT SCHEDULE
Disclosures Required by Federal Law
ANNUAL PERCENTAGE FINANCE CHARGE: AMOUNT FINANCED: TOTAL OF PAYMENTS: TOTAL SALE
RA1E;* Dollar amount Amount of credit Amount paid by PRICE:
Cost of credit as credit will provided by Buyer as total of Total cost of
yearly rate cost Buyer t ,Dickinson College all scheduled purchase on
payments credi t , irr-
cluding dO'lin
payment of
$ 12,980.00
9.499 % I. $ 4,606,00 $7,000.00 $ 11,606.00 $ 19,980.00
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Rev 9/89
Buyer's payment schedule will be as follows:
Number of Payments AmOUJ:lt of Payments
140
*Variable Rate:
Late Charge:
Prepayment:
When Payments are Due
$82.90
Monthly commencing 10/28/91
until 5/28/03
The ANNUAL PERCENTAGE RATE disclosed above is a variable rate and may
change. The ANNUAL PERCENTAGE RATE may increase during the tenn of
this transaction if the prime rate of interest announced in the Wall
street Journal as of the close of business on June 30 of each calendar
year increases, and will be increased. to the prime rate plus 1%. The
ANNUAL PERCENTAGE RATE wi 11 not increase more than once a year, and
the new interest rate will become effective on July 1 following the
increase, if any, in the prime rate of interest. Any increase wi 11 be
in the fonn of higher payment amounts. If your cost of the Goods and
Services sold hereunder were $ lnnn nn at 9.5n % per annum for
-1iill. months, and the prime rate plus 1% were increased to 10.500 %,
your regular monthly payments would increase to $ 116 91 Further,
the ANNUAL PERCENTAGE RATE wi 11 not increase to more than 18% or such
other rate as may be permitted under the Pennsylvania Goods and
Services Installment Sales Act.
If a payment is more than 15 days late, a sum equivalent to 5% of the
late payment (but no more than $2.50 and not less than $1.00) may be
charged.
Buyer may prepay the unpaid balance of the Amount Financed and any
FINANCE CHARGE due through the date of early payment, in full or in
part, without penalty.
SEE SECITON VI OF THE CONTRACT BELOW FOR ANY ADDITIONAL INFORMATION AroUT NON-PAYMENT,
DEFAULT AND REOUIRED REPAYMENT BEFORE THE SCHEDULED DATE FOR REPAYMENT OF THE AMOUNf
FINANCED.
1. Cash price of Goods and Services: $ 19.980.00
') Total down payment: 12,980.00
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3. Unpaid balance of cash price (1 - 2): T,OOn.no
4. Amount paid to others on Buyer's behalf: 0
5. Amount Financed ('3 + 4) : $ 7,000.00
III. ITEMIZATION OF AMOUNT FINANCED
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IV. CREDIT INSURANCE
Credit life insm^ance for the term of this Contract is not required.
V. NO WARf-tANTIES
TI-lERE ARE NO WARRANTIE3, EITHER EXPRESSED OR IMPLIED, GIVEN BY SELLER IN CONNECTION
WITH SALE OF TIiE GCODS AND SERVICES COVERED BY THIS CONTRACT lJNLE'3S BUYER HAS BEEN GIVEN A
SEPARATE WRITIEN WARRANTY.
VI . ADDITIONAL PROVISIONS
1. Buyer agrees to pay Seller the Total Sale Price by making the total down payment and
paying Seller the Total of Payments in the nwnber and amount of monthly payments shown
in the Payment Schedule. Payments are due on or before the same date of each month as
the first payment date. Payments must be made to First Wachovia, Inc. at the
following address:
First Wachovia, Inc.
P.O. Box 70095
Charlotte, NC 28272-0095
2. Buyer's legal rights include the right to pay all or part of the amounts due on this
Contract in advance of their due dates, to obtain a refund or credit of unearned
Finance Charge whenever the amount is paid in full in advance, and (with Seller's
consent) to reinstate the Contract if Buyer timely cures any default.
3. Buyer shall be deemed to have committed an "Event of Default" of the Contract upon the
occ=nce of any of the following:
(a) failure to make any payment on or before the date it is due.
(b) failure to make a payment on any other Contract outstanding with Seller,
(c) failure to perform any other provision of the Contract,
(d) providing Seller with false information or signatures,
(e) death, incompetence; or conviction of any myel' of crime involving fraud or
dishonesty,
(f) insolvency or bankruptcy of any Buyer.
4. Upon or after the occurrence of any Event of Default, Seller will provide Buyer with
notice, by certified mail as required by law, addressed to Buyer's last known address
as shown on Seller's records, advising Buyer of the default and of Buyer's right to
cure the default. The notice will provide the time, amount and performance necessary
to cure. the default. If Buyer does not cure the default as provided in the notice..
Seller's rights shall include the right to declare all sums due on the Contract to be
immediately due and payable. The Buyer agrees to pay all attorney's fees and other
reasonable collection costs and charges necessary for the collection of any amount not
paid when due.
5. Waiver by Seller of any Event of Default shall not be binding upon Seller if Seller
should thereafter choose to exercise that or any other right or a similar Event of
Default occurs. later. All Seller's rights and remedies shall be cumulative. Seller's
exercise of one or more rights shall not cause Seller to lose any other rights.
6. This Contract is freely assignable by Seller. Buyer agrees that upon receiving notice
of the assignment Buyer shall be Obligated to the Assignee of this Contract.. which
Assignee shall have all of Seller's right and remedies.
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7. If any part of this Contract is held to be illegal. void or unenforceable, that
provision shall be deemed not to have been a part of this Contract, which shall
otherwise remain fully effective.
8. APPLICAJ3LE LAW: This Agreement, whenever called upon to be construed, shall be
governed by the domestic internal laws of the Commonwealth of Pennsylvania except to
the extent supplemented, superseded or preempted by federal law.
9. CONSENT TO JURISDlcrION. VENUE AND SERVICE: The parties to this Agreement consent and
agree that all legal proceedings relating to the subject matter hereof shall be
maintained in the Court of Common Pleas of CUmberland County, Pennsylvania. or, if
applicable. the United states District Court of the Middle District of Pennsylvania.
and all parties hereto consent and agree that jurisdiction and venue for such
proceedings shall lie excLusively within said court. Service of process in any such
proceeding may be made by certified mail. return receipt requested. directed to the
respective party at the address set forth above.
10. This Contract shall be binding upon the parties hereto. their heirs. successors,.
assigns and. legal representatives,
11. TIME IS OF THE ESSENCE OF 111IS <XlNTRACT,
NOTICE: ANY HOLDm OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO AlL CLAIMS AND DEFENSES
WHICH THE DEBTOR COULD ASSERT AGAINST THE gF.rJ F.Q OF GOODS OR SERVICES OBTAINED PURSUANT
~w OR WITH THE PROCEEDS HEREOF. RECOVERY HElIDJNDm Fl illE DEBTOR SHALL NOT EXCEED
AMOUNTS PAID BX' THE DEBTOR HElIDJNDm.
NOTICE TO BUYER: (1) ro NOT SIGN THIS AGRIDlENTBEroRE YOU RFJ\D IT OR IF IT CONTAINS ANY
BLANK SPACE. (2) YOU ARE ENTITLED TO A COMPI..EI'EI..YFlIilD-IN COPY OF THIS AGRIDlENT.
(3) UNDER TIiE LAW. YOU HAVE THE RIGHrTO PAY OFF IN ADVANCE THE FULL AMOUNT DUE AND UNDm
CERTAIN CONDITIONS TO OBTAIN A PARTIAL ID1JND OF THE FINANCE CHARGE,
BUYER(S) ACKNOWLEOOE(S) RECEIVING A COMPLEI'ED COPY OF THIS CONTRACT AND INI'END(S) TO
BE LEJ3AILY roUND Fl ITS TERMS.
BUYER(S): ~4 6;if~
I AG'REE TO REPAY ALL AMOUNTS DUE ON THIS WAN IF THE IDRROWER(S)!BUYER(S) FAILS TO
rororn==~~~
SIUDENT COSI . ~~
DAlE:
DICKINSON COLLEl3E
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VERIFICATION
Subject to the penalties of 18 Pa. C.s. ~4904 relating to unsworn falsification to authorities, I hereby
certify that I am Thomas B. Meyer, Assistant Treasurer of Dickinson College, and I am authorized to verify
this Complaint on behalf of Dickinson College, and further, that the facts set forth in the foregoing
Complaint are true and correct to the best of my knowledge, information and belief.
Th~~
Dated: ~ I 17 I bD
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DICKINSON COLLEGE,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: CIVIL ACTION - LAW
TIMOTHY E. KELLY and
KILLIAN S. KELLY,
Defendants
: NO. 00-5733
PRAECIPE
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Cmlllsel moves the Court to reinstate the Complaint in the above-captioned matter which was
filed on August 21, 2000, to be able to obtain service of the Complaint upon Timothy E. Kelly and
Killian S. Kelly, Defendants.
McNEES, W
LACE & NURICK
By
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Attorneys for Plaintiff
Dickinson College
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DATE: 01/26/01 TI~E: 03:31 PM TO: 115 Lola @ 61(4BO~ 632-5366
PAGE: 002-003
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800-538-5299
Dickinson College, et. al., Plaintiff(s)
v,.
Timothy E. Kelly and Killian S. Kelly, et. al., Defendant(s)
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Service of Process by
APS International, Ltd.
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7800 Glenroy Rd.
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AFFIDAVIT OF SERVICE -- Individual
Service of PI'OCffiS on:
McNEES, WALIACE & NURICK
--Timothy E. Kelly
Conrt Case No. 00-5733
Ms. Heather Jones
100 Pine St
Harri,bnrg, P A 171 08-1166
State of:
Arizona
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County of: Maricopa )
Name of Server: Wa yne Lamb , undersigned, being duly sworn, deposes and says
that at the time of service, slbe was over the age of twenty_one, was not a party to this action;
DatelTime of Service: that on the 29th day of January
Place of Service: at 1854 W. JUanita Ave.
Documents Served:
Service of Process on:
Pel'SOIl Served, and
Method of Service:
Description of Pe,'son
Receiving Documents:
Signature. of Server:
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4\)01 at 8: 23 ','o'clock P M
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, state of AZ
the undersigned served the documents described as:
Notice to Defend
Complaint
A true and correct copy of the aforesaid documen1:(s) was served on:
Timothy E. Kelly
~ By personally delivering them into the hands of the person to. be served.
o By delivering them into the hands of
suitable age and discretion residing at the Place of Service,
whose relationship to the person to be served is
, a person of
The person receiving documents is described as follows:
Sex~; Skin Color Cau ; Hair Color Brown ; Facial Hair
Approx. Age 52 ; Approx.Height ~ I q" ; Approx. Weight ?QQ l];o'i
Qg To the best of my knowledge and belief, said person was not engaged in the US Military at
the time of service.
Undersigned declares under peualty of perjury
that the foregoing is true and correct.
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APS International, Ltd.
APS File #: 043262-0001
Subscribed and sworn to before me this
30 day of ,~.;)Do I
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mission E"1)ires)
. OFFICIAL SEAL
. ZOE ZWiERZYNSKI
NOT MY PUBLIC. ARIZONA
- MARICOPA COUNTY
My C~mm. E"p/rll8 May 6, 2004
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DICKINSON COLLEGE
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
: NO. 00-5733 Civil Term
TIMOTHY E. KELLY and
KILLIAN S. KELLY
Defendants
AFElDA VIT OF SERVICE
JAMES S. KIM
I, , being duly sworn, do state that: I arn over
eighteen years of age, arn not a party to, or otherwise interested in the above-captioned
proceeding; and that on the 21 st day of February , 2001, at 3: 24 a .m., I
serJed the following documents:
NOTICE TO DEFEND; COMPLAINT; EXHIBITS "A" & "R"
on KILLIAN S. KELLY at the following address:
1908 Judd Hillside Road,
Honolulu. HBwBij q6A22
by Personal Service on Killian S. Kelly, Defendant
(name and title of person served)
Description: Sex ~ Race Caue Hair Brn
'2" Weight 150lbA e~
303
rehant Stre
ulu, Hawaii
(Address)
v.w.
(NOTA.RY'S SEAL)
(808) 524-4488
(Telephone number) ~
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Notary Public, If W-tU
Mem,,! ,A1. tJflV~ t/L' It
My Commission Expires: 1'1. '()t:__
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Subscribed and sworn before me this If ~t?! d
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DICKINSON COLLEGE,
Plaintiff
v.
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYL VANIA
: CIVIL ACTION - LAW
TIMOTHY E. KELLY and,
KILLIAN S. KELLY
Defendant
: NO. 00-5733
PRAECIPE FOR ENTRY OF DEFAULT JUDGMENT
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Pursuant to Pa. K Civ. P. No. 1037(b), enter judgment in favor of Dickinson College,
Plaintiff, in the above-captioned action, and against Timothy E. Kelly, Defendant, in the
above-captioned action, for failure to file an Answer to Plaintiffs Complaint within twenty (20)
days from the date of service of said Complaint, and assess Plaintiff s damages in the total sum
of $24,908.32 as principal, plus interest, late fees, collection costs and attorneys' fees, until
Defendant's obligation is paid in full. I hereby certify that a written Notice ofIntention to File
this Praecipe for Entry of Default Judgment was given in accordance with Pa. K Civ. P. No.
237.1; a true and correct copy of the aforesaid Notice is attached hereto as Exhibit "A." I hereby
certify that the last known address of the Defendant is
Timothy E. Kelly
1854 W. Juanita Avenue
Mesa, AZ 85202
::NEEOO~:: & L
Charles T. Young, r., Es
Attorney LD. No. 0680
100 Pine Street
P. O. Box 1166
Harrisburg, P A 17108-1166
(717) 232-8000
Attorneys for Plaintiff
Dickinson College
Dated: March 14,2001
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DICKINSON COLLEGE,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v,
CIVIL ACTION - LAW
TIMOTHY E. KELLY and,
KILLIAN S, KELLY,
Defendants
NO, 00-5733
NOTICE OF INTENTION TO
ENTER JUDGMENT BY DEFAULT
TO: TIMOTHY E. KELLY
DATE OF NOTICE: March 1, 2001
IMPORTANT NOTICE
YOU ARE IN DEFAULT BECAUSE YOU HA VEFAILED TO TAIZE ACTION REQUIRED OF YOU IN THIS
CASE. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A mDGMENT MAY BE
ENTERED AGAINST YOU ON PLAINTIFF'S COMPLAINT WITHOUT A HEARING, AS A RESULT, YOU MAY
LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS, YOU SHOULD TAI(E THIS NOTICE TO A
LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE
THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP:
Cumberland CliantyBar Assodatioll
2 Liberty Avellue
Carlisle, Pellllsylvallia 17013-3387
Telepholle: (717) 249-3166
McNEES,W ALLACE & NURICK .
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Charles T. Young, k; Esqll;i~ei
Attorney J.D. No. 1lf)680 '
100 Pine Street
P.O. Box 1166
Harrisburg, P A 171 08-1166
(717) 232-8000
Attorneys for Plaintiff
Dickinson College
Dated: March 1, 2001
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CERTIFICATE OF SERVICE
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I hereby certify that on this date a tme and correct copy of the foregoing Notice of
Intention to Enter Judgment by Default was served by first class mail, postage prepaid, upon the
following:
Timothy E. Kelly
1854 W. Juanita Avenue
Mesa, AZ 85202
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Charles T. Young,.Esquire
Attorney for Plaintiff
Dated: March I, 2001
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DICKINSON COLLE<:;E,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: CIVIL ACTION - LAW
TIMOTHY E. KELLY and,
KILLIAN S. KELLY
Defendant
: NO. 00-5733
NOTICE OF ENTRY OF JUDGMENT
TO: TIMOTHY E. KELLY
You are hereby notified that on fYl~ruJ....:LQ ,2001, the followin Judgment was
entered against you in the above-captioned case.
DATE: .?/.;r~/()1
I I
A: TIMOTHY E. KELLY
Por este medio se Ie esta notificando que el de del 2001,
el/la siguiente (Orden), (Decreto), (Fallo) ha sido anotado en contra suya en el caso mencionado
en el epigrafe.
FECHA:
Protonotario
Certifico que la siguiente direccion es la del defendido/a segun indicada en el certificado
de residencia:
Timothy E. Kelly
1854 W. Juanita Avenue
Mesa, AZ 85202
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I hereby certify that the name and address of the proper person(s) to receive this notice
under Pa. R. Civ. P. 236 is:
Timothy E. Kelly
1854 W. Juanita Avenue
Mesa, AZ 85202
McNEES, WALLACE & NURICK
By ce~~J
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Attorneys for Plaintiff
Dickinson College
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DICKINSON COLLEGE,
Plaintiff
: IN THE COURT OF COMMON PLEAS
- : CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
TIMOTHY E. KELLY and
KILLIAN S. KELLY,
Defendants
: NO. 00-5733
PRAECIPE TO DISCONTINUE
TO THE PROTHONOTARY:
The Plaintiff, Dickinson College, requests that the above-captioned matter be
discontinued as to Killian S. Kelly without prejudice. (Judgment was entered against Timothy E.
Kelly on March 20,2001).
Respectfully submitted,
McNEES, WALLACE & NURICK
@11
Charles T. Young, J, ., Es
Attorney LD. No. 0680
100 Pine Street
P. O. Box 1166
Harrisburg, P A 171 08-1166
(717) 237-5397
By
Attorneys for Plaintiff Dickinson College
Dated: May l, 2001
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CERTIFICATE OF SERVICE
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The undersigned hereby certifies that on this date a true and correct copy of the foregoing
document was served by U.S. first-class mail, postage prepaid, upon the following:
Kathryn A. Neuheise1, Esq.
Neuheise1 Law Firm, P.C.
Wells Fargo Bank Plaza
64 East Broadway Road, Suite 245
Tempe, AZ 85282-1355
Killian S. Kelly
Marine Corps Base Hawaii
2554 A Manning Street
Kailua, HI 96734
Timothy E. Kelly
1854 W. Juanita Avenue
Mesa, AZ 85202
Of Counsel for the Plaintiff
Dated: May L 2001
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