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HomeMy WebLinkAbout03-1723BURTON NEIL & ASSOCIATES, P.C. By: Burton Neil Identification No. 11348 26 South Church Street West Chester, PA 19382 610-696-2120 Attorney for Plaintiff CITIBANK (SOUTH DAKOTA) N.A. 701 EAST 60TH STREET NORTH SIOUX FALLS, SD Plaintiff ROBERT HOWELL 216 7TH STREET NEW CUMBERLAND, PA Defendant · IN THE COURT OF COMMON PLEAS · CUMBERLAND COUNTY, PENNSYLVANIA · NO. 0:t - · CIVIL ACTION - LAW COMPLAINT 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 (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 claim 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 THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. LAWYER REFERENCE AND INFORMATION SERVICE Cumberland County Bar Association 2 Liberty Avenue, Carlisle, PA 17013 717-249-3166 10008.034.2869 BURTON NEIL & ASSOCIATES, P.C. By: Burton Neil Identification No. 11348 26 South Church Street West Chester, PA 19382 610-696-2120 Attorney for Plaintiff CITIBANK (SOUTH DAKOTA) N.A. 701 EAST 60TH STREET NORTH SIOUX FALLS, SD Plaintiff · IN THE COURT OF COMMON PLEAS · CUMBERLAND COUNTY, PENNSYLVANIA Vo ROBERT HOWELL 216 7TH STREET NEW CUMBERLAND, PA · NO. d)3-179,3 Defendant · CIVIL ACTION - LAW Complaint 1. The plaintiff is Citibank (South Dakota)N.A., with place of business located at 701 EAST 60TH STREET NORTH, SIOUX FALLS, SD. 2. The defendant is ROBERT HOWELL, who resides at 216 7TH STREET, NEW CUMBERLAND, CUMBERLAND County, Pennsylvania. 3. At the defendant's request, plaintiff issued the defendant a credit card with account number 4128002170471226 for the defendant's use in making credit purchases and securing cash advances subject to the terms and conditions governing the use of the credit card. Attached hereto, made a part hereof and marked Exhibit A is a true and correct copy of the terms and conditions. 4. The defendant accepted the credit card and the terms and conditions governing its use for the purchase of goods, merchandise and services and/or cash advances from vendors who accepted plaintiffs credit card. In using the credit card, the defendant agreed to comply with the terms and conditions governing its use which included the obligation to pay plaintiff for all the charges made in full upon receipt of the statement or in installments subject to monthly fmance charges. 5. The defendant utilized the credit card by making/obtaining purchases of goods, merchandise and services and/or cash advances from vendors who accepted the credit card. Monthly statements were sent to the defendant which detailed the charges made to the account including f'mance charges, late and/or over limit charges. The balance due for the charges made by the defendant including any finance charges, late or over limit charges is $7,739.78. 6. Defendant did not pay the balance due in full upon receipt of the billing statements and failed to make the required minimum monthly payment set forth in the the billing statement. As such, defendant is in default of the terms and conditions goveming the use of the credit card. 7. Although demand has been made by plaintiff upon defendant to pay the sum of $7,739.78, the defendant failed and refused to pay all or any part thereof. 8. Plaintiff alleges it is entitled to recovery of attomey's fees from defendant pursuant to the terms and conditions governing the account. Plaintiffs counsel is not a salaried employee of Citibank (South Dakota) N.A. Plaintiff seeks recovery of attorney fees in the sum of $1,470.56. WHEREFORE, plaintiff demands judgment against the defendant in the sum of $7,739.78, attomeys fees in the sum of $1,470.56 and the costs of this action. BURTO~ & ASSOCIATES, P.C. on Neil, E'~quire Attorney for Plaintiff In making this communication, we advise our firm is a debt collector. . - .... ~ ~ ~v ~ue ~a~ ~_e~t of your ~ i~_~a ~ -~=~=_bIe zo buy or le~ goo~ or ~ ~o~ mo~X ¢~ vo~ ~&~ ~e you m~ ~a~u~ ed ~ nk'Ch e~ Ye= ~a ~ay ~ ~ fca ~ ~ ~ adv~uc~ b~ ~ we dac~a ~o homo~ a o~ ~;<Wo~. or ~fa~: o~ ~y o~ C~o~ Card mud ]er~ ~y co h~p yo~ you or yo~- ~c~ s~ m you ~ ~e ~*~ or 52 ~ :~. 3~;2T. tf~ no~ffy us ~ y~ da r~ a~ept ~h~ n~sv 1~, you ~n con/inuo lo ~ee yo~ card(~) U~ycuF ~n~ ~it~ ~he e~d o{)~dc du~{ ~er~p ~m[ I~ey~r ~c~n~ ~w~ be ~d~ and ~ p~ off ~ur r~ih9 ~ai~n~ undo-your ~ pla~8 rm~r ~o y~c CJl~a~ C~rd Ag~ement ~ ~m~qded ~ve ~ ~ne d*v a~ ~ ~ ~t=mo~C~ino ~, _ a~mg }~ur C~be~ CaM .~ees~q{ Ihs cor~poaGao o~-~ h your ~n9 C)~ Gird y~ [o mad ~h~ nod~ ~d s~e R ~ari~ie ~nnu~ F~rcan~o~ ~a~e~ far ?urchins--ex ~--nd CasD I-Da ~"mu~! percen~a~ rare l'orpdr~ ~nd c~h' ad~n~ may ~ va~ i{ ~ deisu~( under a~¢ ~b~nk Ca~ Ag,~n~ be~ y~ ~ lo m~fi8 z o~men~ Io ~ne, ~you make a ~ym~( ~ ~ ~al ~ no[ 6~ed by ~ur ba~ In ~d~ c~r~msian~s, we ~y fncre~a {he AH~i~AL P~C~TA G ~ ~A~ (/~u~mg any Pr~onalrata) ~ ~A balings la a de/~bd~ mfs O/ua to 24.~%. ~clorx oo~derad in delerm~g tb~ de(~h may bc/ude Ih~/bag~ o( I~m~ ~e accent ~e~q open. bho e~len~ s~iou~, and ~n~ of C~fib~k Cazd Agr~m~l del~ ulls, end other indf~t~ons O[ 2cough( u~zge and peffor~nc~ ~e increase ~n lhe ~dabla ~nnua/ peri'ge ~le ~ d~ed in hhi~ p~ragr~h lakes elte~ ~ ~ ruler you ~ve mol Ibc [e~ ol ~ C~/~s~ ~rd beiznc~ ~71 eem~n ~bje~ (o Lhe ~taUf[ ~(e ~ ihe7 are p~M tn full Verification Jennifer Sisson is an attorney management specialist for Citibank (South Dakota), N.A. and Citicorp Credit Services, Inc., wholly owned subsidiaries of Citigroup, the within Plaintiff in this action. She verifies that the statements of fact made in the foregoing Complaint are tme and correct to the best of her knowledge and belief. The undersigned understands that the statements made herein are subject to the penalties of 18 Pa. C.S. Section 4904, relating to unswom falsification to authorities. Date: Account number: Defendant: /~ o SHERIFF'S RETURN - REGULAR CASE NO: 2003-01723 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CITIBANK SOUTH DAKOTA NA VS HOWELL ROBERT SHANNON SUNDAY , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon HOWELL ROBERT the DEFENDANT , at 0824:00 HOURS, on the 23rd day of April at CUMBERLAND CO SHERIFF'S OFFICE ONE COURTHOUSE SQ CARLISLE, PA 17013 by handing to STEVEN HOWELL ATTORNEY FOR DEFENDANT a true and attested copy of COMPLAINT & NOTICE , 2003 together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18 00 12 42 00 10 00 00 40 42 Sworn and Subscribed to before me this '] ~ day of  .B A.D. ~P~othonot ary So Answers: R. Thomas Kline 04/23/2003 Deputy Sheriff' CITIBANK (SOUTH DAKOTA) N.A., PLAINTIFF V. ROBERT HOWELL, DEFENDANT IN THE C, OURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03 - 1723 CIVIL TERM CIVIL AC, TION - LAW JURY TRIAL DEMANDED DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT TO: Citibank (South Dakota) N.A. c/o Burton Neil, Esquire Burton Neil & Associates, P.C. 26 South Church Street West Chester, PA 19382 NOTICE TO PLEAD YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED PRELIMINARY OBJECTIONS WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. MOTION TO STRIKE PARAGRAPH 8 OF THE COMPLAINT 1. Plaintiff's Complaint seeks attorneys' fees of $1,470.56 in ¶8. 2. The Contract attached to the Complaint does not bear Defendant's signature nor does it permit the imposition of a fiat fee commission of approximately 20% as set forth in ¶8 of the Complaint. 3. Under the terms of the Contract attached as Exhibit "A" attorneys fees are to be calculated at the conclusion of the case and do not permit the imposition ora flat commission rate of approximately 20%. WHEREFORE, pursuant to Pa. R.C.P. 1028(a)(2) (a)(4) Plaintiffs ¶8 of the Complaint should be stricken for pleading an amount of legal fees when the contract requires this to be calculated at the conclusion of the matter; or in the alternative, pleading an amount of attorneys fees based upon a 20% flat commission. Respectfully submitted, /~S-t~en Howell, q ' 619 Bridge Street New Cumberland, PA 17070 (717) 770-'1277 Supreme Court I.D. 62063 Attorney for Defendant Certificate of Service I hereby certify that on the date set forth below a tree and correct copy of the foregoing document was served upon all counsel of record via postage prepaid, first class United States Mail addressed as follows: Burton Neil, Esquire Burton Neil & Associates, P.C. 26 South Church Street West Chester, PA 19382 619 Bridge Street New Cumberland, PA 17070 (717) 770-1277 Supreme Court I.D. 62063 Attorney for Defendant BURTON NEIL & ASSOCIATES, P.C. By: Burton Neil, Esquire Identification No. 11348 26 South Chumh Street West Chester, PA 19380 (610) 696-2120 Attorney for Plaintiff CITiBANK (SOUTH DAKOTA)N.A. 701 EAST 60TM STREET NORTH SIOUX FALLS, SD Plaintiff ROBERT HOWELL 216 7t~ Street New Cumberland, PA Defendant 1N THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03- 1723 CIVIL ACTION - LAW AMENDED COMPLAINT 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 (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 claim 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 THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. LAWYER REFERENCE AND INFORMATION SERVICE Cumberland County Bar Assoc. 2 Liberty Avenue Carlisle, PA 17013 Telephone No. 717-249-3166 or 800-990-9108 53682 BURTON NEIL & ASSOCIATES, P.C. Burton Nell, Esquire, Id. no. 11348 26 S. Church Street, West Chester, PA 19382 610-692-2120 Attorney for Plaintiff CITIBANK (SOUTH DAKOTA) N.A. Plaintiff : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-1723 ROBERT HOWELL Defendant C1VIL ACTION - LAW Amended Complaint 1. The plaintiff is Citibank (South Dakota) N.A., with place of business located at 701 East 60th Street, North Sioux Falls, South Dakota.. 2. The defendant is Robert Howell, who resides at 216 7t~ Street, New Cumberland, Cumberland County, Pennsylvania. 3. At the defendant's request, plaintiff issued the defendant a credit card with account number 4128002170471226 for the defendant's use in making credit purchases and securing cash advances subject to the terms and conditions governing the use of the credit card. Attached hereto, made a part hereof and marked Exhibit A is a tree and correct copy of the terms and conditions. 4. The defendant accepted the credit card and the terms and conditions governing its use for the purchase of goods, merchandise and services and/or for cash advances from vendors who accepted plaintiffs credit card. In using the credit card, the defendant agreed to comply with the terms and conditions governing its use which included the obligation to pay plaintiff for all charges made in full upon receipt of the statement or in installments subject to monthly finance charges. 5. The aforesaid terms and conditions did not require the signature of the defendant. By the language of the terms and conditions, a contract was formed fi.om the defendant's use of the credit card or by his failure to reject the card within 30 days. The defendant did accept and use the card. 6. The defendant utilized the credit card by making/obtaining purchases of goods, merchandise and services and/or cash advances from vendors who accepted the credit card. Monthly statements were sent to the defendant which detailed the charges made to the account including finance charges, late and/or, over limit charges. The balance due for the charges made by the defendant including any finance charges, late or over limit charges is $7,739.78. 7. Defendant did not pay the balance due in full upon receipt of the billing statements and failed to make the required minimum monthly payment set forth in the billing statement. As such, defendant is in default of the terms and conditions governing the use of the credit card. 8. Although demand has been made by plaintiffupon defendant to pay the sum of $7,739.78, the defendant failed and refused to pay all or any part thereof. 9. Pursuant to the aforesaid terms and conditions, the defendant is obligated to pay plaintiff's attorney's fees if his account was referred to an attorney for collection. 10. Plaintiff referred the defendant's account to an attorney for collection. 11. Plaintiffs counsel is not a salaried employee of Citibank (South Dakota) N.A. 12. Plaintiff seeks recovery of attorney's fees in the sum of $1,470.56 which sum is equal to 19% of the principal balance of $7,739.78. The rate of 19% is the agreed contingent fee to be paid by plaintiff to its counsel. Wherefore, plaintiff demands judgment against the defendant in the stun of $7,739.78, attorneys fees in the sum of $1,470.56 and the costs of this action. BURTg~NEIL & ASSOCIATES, P.C. ~'~-~--'-"~'~urton Neil, Esquire Attorney for Plaintiff In making this communication, we advise our firm is a debt collector. Verification 1, Tara Cross, verify that I am an attorney management specialist for Citibank (South Dakota), N.A. and Citicorp Credit Services, Inc., wholly owned :subsidiaries of Citigroup, the within Plaintiff and am authorized to make this verification on its behalf. The facts in the foregoing amended complaint are true and correct to the best of my knowledge, information and belief. I understand that the statements made herein are subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to the authorities. Robert Howell 4128002170471226 Notice of Change in Terms to Your Citibank Card Agreement oo BURTON NEIL & ASSOCIATES, P.C. By: Burton Neil, Esquire Identification No. 11348 26 South Church Street West Chester, PA 19382 610-696-2120 Attorney for Plaintiff CITIBANK (SOUTH DAKOTA) N.A. Plaintiff ROBERT HOWELL Defendant : IN THE COURT OF COMMON PLE~;~ : CUMBERLAND COUNTY, PENN~q~LVAiNtA : NO. 03-1723 -~:~ CERTIFICATE OF SERVICE I, Burton Neil hereby certify that a tree and correct copy of the Amended Complaint was sent via First Class U.S. Mail postage pre-paid on December 17, 2003 to the counsel for the Defendant, Steven Howell at his address of record, to wit: 619 Bridge Street, New Cumberland, PA 17070. BURTON NE~ ASSOCIATES, P.C. Burt6n Neil, Esquire Attorneys for Plaintiff CITIBANK (SOUTH DAKOTA) N.A., PLAINTIFF ROBERT HOWELL, DEFENDANT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03 - 1723 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT TO: Citibank (South Dakota) N.A. c/o Burton Neil, Esquire Burton Neil 8,: Associates, P.C. 26 South Church Street West Chester, PA 19382 NOTICE TO PLEAD YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED PRELIMINARY OBJECTIONS WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. MOTION TO STRIKE AMENDED COMPLAINT AS UNTIMELY 1. On Tuesday, May 13, 2003 Defendant filed Preliminary Objections to Plaintiffs Complaint with the Prothonotary. 2. On Friday, May 9, 2003 Defendant served the Preliminary Objections by postage prepaid, first class United States Mail addressed to Plaintiffs counsel of record as shown on U.S. Postal Service Form 3817 as shown on Exhibit "A". 3. Plaintiffdid not respond to the Preliminary Objections until serving an Amended Complaint on December 17, 2003. 4. Defendant's Prehminary Objections were endorsed w~th a Not, ce to Plead as required by Pa. R.C.P. 1026. 5. Rule 1026 (a) requires "everypleadingsubsequenttothecomplaintshalibe filed within twenty days after service of the preceding pleading... , 6. Plaintiffs Amended Complaint is untimely and should be stricken. 7. Plaintiff has no reasonable basis for the extended delay of seven (7) months in serving its Amended Complaint. 8. Plaintiffs Amended Complaint should be stricken in accordance with the Pennsylvania Supreme Court's holding in Peters Creek Sanitary Authority v. Welch, 545 Pa. 309, 681 A.2d 167 (1996). WHEREFORE, pursuant to Pa. R.C.P. 1028(a)(2) Plaintiffs Amended Complaint should be stricken for failing to be filed in a timely manner as required by Rule 1026 (a). MOTION TO STRIKE PARAGRAPH 12 OF THE AMENDED COMPLAINT 9. Plaintiffs Complaint seeks attorneys' fees of $1,470.56 in 712. 10. The Contract attached to the Complaint does not permit the imposition of a flat fee commission of approximately 19% as set forth in 712 of the Complaint. 11. Under the terms of the Contract attached as Exhibit "A" attorneys fees are to be calculated at the conclusion of the case and do not permit the imposition ora fiat commission rate of approximately 19% at this stage of the proceeding. WHEREFORE, pursuant to Pa. R.C.P. 1028(a)(2) (a)(4) Plaintiffs 712 of the Complaint should be stricken for pleading an amount of legal fees when the contract requires this to be calculated at the conclusion of the matter; or in the alternative, pleading an amount of attorneys fees based upon a 19% flat commission. Respectfully submitted, BY: ~ (717) 770-1277 Supreme Court I.D. 62063 Attorney for Defendant Certificate of Service I hereby certify that on the date set forth below a true and correct copy of the foregoing document was served upon all counsel of record via postage prepaid, first class United States Mail addressed as follows: Burton Neil, Esquire Burton Nei! & Associates, P.C. 26 South Church Street West Chester, PA 19382 Date: January 5, 2004 BY: Steve~FHo{ell~'Esqui~e ~" 6,~B~fidg.e Street - //'New Cumberland, PA 17070 J (717) 770-1277 Supreme Court I.D. 62063 Attorney for Defendant WHEREFORE, pursuant to Pa. R.C.P. 1028(a)(2) (a)(4) Plaintiff's ¶8 of the Complaint should be stricken for pleading an amount of legal fees when the contract requires this to be calculated at the conclusion of the matter; or in the alternative, pleading an amount of attorneys fees based upon a 20% flat commission. Respectfully submitted, /~,effen Howell, Esquire New Cmnberland, PA 17070 (717) 770-1277 Supreme Court I.D. 62063 Attorney for Defendant Certificate of Service I hereby certify that on the date set forth below a tree and correct copy of the foregoing document was served upon all counsel of record via postage prepaid, first class United States Mail addressed as follows: Burton Nell, Esquire Burton Neil & Associates, P.C. 26 South Church Street West Chester, PA 19382 US~ POSTAL SERVICE CERTIFICATE OF MAILING MAY BE USED FOR DOMESTIC AND INTERNATIONAL MAIL, DOES NOT PROVIDE FOR INSURANCE-POSTMASTER Attorney At Law 619 Bridge Skeet New Cumberland, PA 17070 PS Form 3817, Mar, 1989 BURTON NEIL & ASSOCIATES, P.C. Burton Nell, Esquire, Id. no. 11348 26 S. Church Street, West Chester, PA 19382 610-692-2120 Attorney for Plaintiff CITIBANK (SOUTH DAKOTA) N.A. : Plaintiff V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ROBERT HOWELL : NO. 03-1723 Defendant: CiVIL ACTION - LAW Answer to Preliminary Objections 1. Admitted. 2. Denied. It is denied that defendant was served with the preliminary objections. Although defendant attached Exhibit A "Certificate of Mailing" as evidence he mailed service of the preliminary objections, plaintiff avers that the preliminary objections were not in fact received by its counsel. Plaintiff's complaint was filed on April 15, 2003 and it was served on the defendant on or about April 23, 2003. A notice of intention to enter judgment by default was sent to the defendant on May 16, 2003. Subsequently, plaintiff filed for default judgment. On June 12, 2003, plaintiff's counsel received the default judgment which was returned by the prothonotary with a note indicating that preliminary objections were filed by the defendant. This was plaintiff's first notice of the objections. On July 23, 2003, defendant contacted the office of plaintiff's counsel to advise that he was represented by his brother and would arrange for his brother to contact the office of plaintiff's counsel. The name of his brother was not stated. There was no subsequent contact fi.om the brother who is assumed to be attorney Howell. On November 7, 2003, after receiving no contact and still having not been served with the preliminary objections, plaintiff's counsel sent a request to the prothonotary for a copy of the preliminary objections which said request was accompanied by a $1.00 fee in payment of the same. On November 25, 2003, the preliminary objections were., received from the prothonotary. On or about December 9, 2003, the amended complaint was filed and it was served on December 17, 2003. 3. Denied as stated. Plaintiffwas under no obligation to respond to the preliminary objections because the same had never been served on its counsel. It is admitted, that plaintiffdid file an amended complaint with the filing taking place within 20 days after plaintiff's counsel received the copy of the preliminary objections from the prothonotary. 4. Admitted in part. Denied in part. It is admitted that the objections were endorsed with a notice to plead. It is denied, as aforesaid, that said objections were ever served on plaintiff. 5. Admitted that defendant's recitation of Rule 1026(a) is correct. 6. Denied. The allegation contains no facts to which a responsive pleading is required. Rather, it is a conclusion of law. 7. Denied. To the contrary, there is an extremely reasonable explanation, that is, plaintiff was never served with the preliminary objections. 8. Denied. The allegation contains no facts to which a responsive pleading is required. Rather, it is a conclusion of law. 9. Admitted. 10. Admitted. 1 I. Denied in part. Admitted in part. The obligation under the contract (terms and conditions) is to pay plaintiff's attorney's fees. Plaintiffaverred its fees were computed on a contingent basis of 19%. Plaintiff admits that its claim for fees as well as it claim for the principal balance owed by defendant for his use of the credit card will and should be determined at the conclusion of the case. Wherefore, plaintiff prays your Honorable Court will dismiss the preliminary objections. Burt¢ll & A~q~iates, P.C. Attorney fi>r Plaintiff In making this communication, we advise our firm is a debt collector. Verification I, Burton Neil, Esquire, verify that I am the attorney for plaintiffCitibank (South Dakota), N.A. and am authorized to make this verification on its behalf. I am personally familiar within the allegations of fact in the foregoing answer to preliminary objections while Citibank (South Dakota) N.A. is not and that the facts in the foregoing pleading are true and correct to the best of my knowledge, information and belief. I understand that the statements made herein are subject to the penalties of 18 Pa. C.S. Section 4904, relati~~i~falsification to the authorities. CITIBANK (SOUTH DAKOTA) N.A., : PLAINTIFF : ,' V. ROBERT HOWELL, : DEFENDANT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03 - 1723 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT'S PRELIMINARY OBJECTION TO PLAINTIFF'S ANSWER TO PRELIMINARY OBJECTIONS TO: Citibank (South Dakota) N.A. c/o Burton Neil, Esquire Burton Neil & Associates, P.C. 26 South Church Street West Chester, PA 19382 NOTICE TO PLEAD YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED PRELIMINARY OBJECTIONS WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. MOTION TO STR/KE ANSWER TO PRELIMINARY OBJECTIONS 1. Plaintiff claims the Complaint was "served on the defendant on or about April 23, 2003" and that it did not know the Defendant was represented by counsel until July 23, 2003. 2. In troth, the Complaint was served upon Steven Howell, Esquire, who appeared at the Cumberland County Sheriffs Office on April 23, 2003 to accept service on behaifofthe Defendant. This information Would be disclosed upon the Sheriffs Return of Service provided to Plaintiffs counsel. 3. Upon receipt of the Sheriffs Return of Service the Plaintiff knew Defendant was represented by counsel. 4. Plaintiff claims to have served a Notice of Intention to Enter Judgment by Default on May 16, 2003 on the Defendant. Plaintiff does not dispute that its cotmsel did not serve this Notice upon the Defendant's counsel of record who accepted service of the Complaim on April 23, 2003. Plaintiff claims to have attempted to enter a default judgment on or about June 12, 2003. Once again, Plaintiff does not serve the Defendant's counsel with this Praecipe. 6. Plaintiffclaims its failure to respond for seven (7) months to the Preliminary Objections filed of record on Tuesday, May 13, 2003 and mailed on Friday, May 9, 2003 with a U.S. Postal Service Certificate of Mailing (see Exhibit "A") was because it never knew: (a) Defendant had counsel until July 23, 2003; and (b) never received the Preliminary Objections which the United States Postal Service certifies were mailed on May 9, 2003. 7. Plaintiffs Answer to Preliminary Objections falls to conform to the Rules of Court in that it does not correctly identify the person who accepted service of the Complaint on April 23, 2003. Defendant's counsel accepted service before the Sheriffof Cumberland County and any assertions from Plaintiffthat the Defendant was personally served are false. Any assertions by Plaintiff that it did not know of the existence of Steven Howell, Esquire and his representation of the Defendant until July 23, 2003 are similarly false since his identity would have been disclosed on the Return of Service. 8. In accordance with Pa. R.C.P. 1023.1 and 1023.2 the Plaintiff is required to amend its Answer to Preliminary Objections to correctly reflect: (a) the information set forth on the Return of Service; and (b) that Plaintiff chose not to serve Defendant's counsel with the Notice of Intention to Enter Judgment by Default on May 16, 2003 or the Praecipe to Enter Default Judgment on June 12, 2003 despite Plaintiffs counsel's receipt of the Return of Service. WHEREFORE, pursuant to Pa. R.C.P. 1028(a)(2) Plaintiffs Answer to Preliminary Objections should be stricken. Respectfully submitted, BY: ,~.~ )5~ven Iffov~ell, Egquire J 619 Bridge Street New Cumberland, PA 17070 (717) 770-1277 Supreme Court I.D. 62063 Attorney for Defendant Certificate of Service I hereby certify that on the date set forth below a tree and correct copy of the foregoing document was served upon all counsel of record via postage prepaid, first class United States Mail addressed as follows: Burton Neil, Esquire Burton Neil & Associates, P.C. 26 South Church Street West Chester, PA 19382 Date: February 10, 2004 S/te%n Howell, Esquire //619 Bridge Street New Cumberland, PA 17070 (s7ulpTr e 7) m7e0~lo27u~71. D. 62063 Attorney for Defendant Certificate of Service I h~reby certify that on the date set forth below a true and correct copy of the foregoing document was served upon all counsel of record via postage prepaid, first class United States Mail addressed as follows: Burton Neil, Esquire Burton Neil & Associates, P.C. 26 South Church Street West Chester, PA 19382 Date: U,S. POSTAL SERV[CE CERTIFICATE OF MAILING MAY BE USED FOR DOMESTIC AND INTERNATIONAL MAIL. DOES NOT P.OVIDI[~FOR ,NSURANCE--POSTMASTER ~1~ ~ll~ Auom*y At Law New Cmberl~d, PA 17070 PS Form 3817, Mar. 1989 BURTON NEIL & ASSOCIATES, P.C. BY: BurtonNeil, Esquire Identification No. 11348 1060 Andrew Drive, Suite 170 West Chester, PA 19380 610-696-2120 ATTORNEY FOR: Plaintiff CrI1BANK (SOUTH DAKOTA), N.A. Plaintiff VS. ROBERT HOWELL Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-~723 : CIVfL ACTION - LAW PRAEC1PE TO DISCONTINI rE_ TO THE PROTHONOTARY: Kindly discontinue the above-captioned action without prejudice. BURTONS; & ASSOCIATES, P.C. Burton Neff, Es~e Attorney for Plaintit¥~ CITIBANK (SOUTH DAKOTA) N.A., PLAINTIFF V. ROBERT HOWELL, DEFENDANT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03 - 1723 CIVIL TERM CIVIL ACTION - LAW JURY TPd[AL DEMANDED DEFENDANT'S PETITION TO, STRIKE PLAINTIFF'S PRAECIPE TO DISCONTINUE TO: Citibank (South Dakota) N.A. c/o Edward J. O'Brien, Esquire Burton Neil & Associates, P.C. Suite 170, 1060 Andrew Drive West Chester, PA 19380 Factual Background 1. On April 15, 2003 Plaintiff commenced a civil action to 03-1723 against the Defendant in Cumberland County. The 2003 civil action was discontinued April 14, 2004 only to have a new action filed August 6, 2004 to 04-3892 (Cumberland County Docket Number). 2. On April 23, 2003 Defendant's counsel accepted service of the civil action at the Cumberland County Sheriffs Office as a professional courtesy to Plaintiffs counsel and this fact would appear on the Sheriffs Return. 3. On May 13, 2003 Defendant filed Preliminary Objections (attached hereto as Exhibit "A") endorsed with a Notice to Plead and those objections were served upon Plaintiffs counsel on May 9, 2003 by postage prepaid, first class United States Mail as shown on a U.S.P.S. Form 3817 attached to the last page of Exhibit "A". 4. Approximately 7½ months after filing of the Preliminary Objections Plaintiff filed an Amended Complaint on December 22, 2003 with the Prothonotary - which is a delay of 223 days. 5. On January 6, 2004 Defendant filed Preliminax3, Objections to Plaintiffs Amended Complaint citing Pa. R.C.P. 1026 (a) which requires "every pleading subsequent to the complaint shall be filed within twenty days after service of the preceding pleading..." 6. On January 21, 2004 Plaintiff served an Answer to Preliminary Objections raising disputed facts. 7. In this Answer Plaintiff admitted that it learned of the original Preliminary Objections on June 12, 2003 but took no action to file an Amended Complaint or answer to the original preliminary objections until December 22, 2003 - a period in excess of 192 days (6½ months). 8. On February 11, 2004 Defendant filed a Motion to Strike Plaintiffs Answer to Preliminary Objections. A tree and correct copy is attached hereto as Exhibit "B". 9. On February 10, 2004 Plaintiffs counsel was mfdled a letter attached as Exhibit "C-1" which indicated that depositions on disputed facts would need to be scheduled on the Preliminary Objections regarding the 223 delay in filing the Amended Complaint. See Exhibit "C-2" which is U.S.P.S Form 3817 showing service on February 10, 2004. 10. Instead of scheduling depositions Plaintiff filed a Praecipe to Discontinue the civil action on April 14, 2004. 11. Under the contract between the parties, Citibank agreed: "If we [Citibank] sue to collect and you win, we will pay your reasonable legal fees and court costs." See Exhibit "D". 12. On August 6, 2004 Plaintiff commenced a second civil action against the same Defendant to Docket Number 04 - 3892 raising the same claims in the civil action docketed to 03 - 1723. 2 13. Plaintiff discontinued the 2003 action in an attempt to evade a judgment which would result in its payment of Defendant's reasonable legal fees and court costs because its untimely Amended Complaint was filed 223 days after service of Preliminary Objections. Defendant has incurred legal fees and court costs in defending against the 2003 14. civil action. 15. Plaintiff has no reasonable basis for the extended delay of approximately seven and a half (7½) months in serving its Amended Complaint and Defendant will be prejudiced in defending against the same lawsuit filed four months after the Plaintiff discontinued the 2003 lawsuit. 16. Plaintiff has no reasonable basis for the extended delay from June 12, 2003 (date it admits it knew Preliminary Objections had been filed) to December 22, 2003 (date Amended Complaint is filed) before responding under the Rules of Civil Procedure. 17. Plaintiffs excuse that it did not know of either the filing of the Preliminary Objections on May 13, 2003 or Defendant's counsel's acceptance of service on April 23, 2003 is unsupported in the record since the Sheriffs Return in the 2003 case will clearly identify the date Defendant's counsel accepted service of the Complaint. The docket will clearly show the filing of Preliminary Objections on May 13, 2004. By Plaintiffs own admission it knew these two facts by June 12, 2003 - almost 6½ months before it filed its Amended Complaint on December 22, 2003. 18. Plaintiffs counsel made absolutely no effort to telephone, fax, mail or engage in any contact with Defendant's counsel from April 23, 2003 (date Defendant's counsel accepted service) until mailing a cover letter and Amended Complaint on December 17, 2003. 19. Plaintiff either approved of the Praecipe to Discontinue filed in the 2003 case or was not informed prior to its filing. In either case, under the doctrine of "apparent authority" set forth in Hannington v. Trustees of the University of Pennsylvania, 2002 Pa. Super. 314, 809 A. 2d. 406 (2002), appeal granted 573 Pa. 659, 820 A.2d 162 (2003) and Manzitti v. Amsler, 379 Pa. Super. 454, 550 A.2d 537 at 544 (1998) affirmed without opinion, 524 Pa. 587, 574 A.2d 601(1990) Citibank is bound by its counsel's actions to discontinue the 2003 action to avoid dismissal and payment of counsel fees owed to Defendant. Legal Authority Snpporting Defendant's Petition to Strike Discontinnance 20. Plaintiffs Amended Complaint in the 2003 case should be stricken in accordance with the Pennsylvania Supreme Court's holding in Peters Creek Sanitary Authority v. Welch, 545 Pa. 309, 681 A.2d 167 (1996) which states that a party who files a late pleading must show just cause for the delay. 21. Pennsylvania Rule of Civil Procedure 229 (c) provides: "The court, upon petition and after notice, may strike off a discontinuance in order to protest the rights of any party froth unreasonable inconvenience, vexation, harasstnent, expense, or prejudice. " 22. In this case, the Plaintiffs original action in 20013 should be dismissed because its Amended Complaint was filed 7½ months after the filing and service of Preliminary Objections. 23. In this case, Defendant is entitled to an award of' his reasonable legal fees and court costs incurred in defending against the 2003 civil action under the express terms of the parties' written agreement attached as Exhibit "D". 24. Aside from avoiding a dismissal of the 2003 civil action and an award of counsel fees incurred to defend the action, the Praecipe to Discontinue filed April 12, 2004 serves no other purpose. 25. A draft of this Petition was faxed to opposing counsel in accordance with Local Respectfully submitted, ~qfe/ven Ho~vell,' EsqUire ~J 619 Bridge Street J New Cumberland, PA 17070 (717) 770-1277 Supreme Court I.D. 62063 Certificate of Service I hereby certify that on the date set forth below a true and correct copy of the foregoing document was served upon all counsel of record via postage prepaid, first class United States Mail addressed as follows: Edward J. O'Brien Esquire Burton Neil & Associates, P.C. Suite 170 1060 Andrew Drive West Chester, PA 19380 Date: September 24, 2004 //~en Ho,~,ell, Esquire Rule 208.3 and Plaintiff does not concur with Defendant's request to strike its Praecipe to Discontinue filed April 12, 2004. VqItEREFORE, pursuant to Pa. R.C.P. 229 (c) Plaintiffs Praecipe to Discontinue in Case Number 03-1723 should be stricken. VERIFICATION I hereby verify that the statements made in the foregointg document are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the relating to unsworn falsification to By:~auth°rities' Date: CITIBANK (SOUTH DAKOTA) N.A., PLAINTIFF V. ROBERT HOWELL, DEFENDANT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03 - 15'23 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT TO: Citibank (South Dakota) N.A. c/o Burton Neil, Esquire Burton Nell & Associates, P.C. 26 South Church Street West Chester, PA 19382 NOTICE TO PLEAD YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED PRELIMINARY OBJECTIONS WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. MOTION TO STRIKE PARAGRAPH 8 OF THE COMPLAINT 1. Plaintiffs Complaint seeks attorneys' fees of $1,470.56 in ¶8. 2. The Contract attached to the Complaint does not bear Defendant's signature nor does it permit the imposition of a fiat fee commission of approximately 20% as set forth in ¶8 of the Complaint. 3. Under the terms of the Contract attached as Exhibit "A" attorneys fees are to be calculated at the conclusion of the case and do not permit the imposition of a flat commission rate of approximately 20%. WHEREFORE, pursuant to Pa. R.C.P. 1028(a)(2) (a)(4) PlaintiffS ¶8 of the Complaint be stricken for pleading an mount of legal fees when the contract requires this to be calculated at the conclusion of the matter; or in the alternative, pleading an amount of attorneys fees based upon a 20% flat commission. Respectfully submilled, Nleeg~en Howell, Esquire Bridge Street Cumberland, PA 17070 (717) 770-1277 Supreme Court I.D. 62063 Attorney for Defendant Certificate of Service I hereby certify that on the date set forth below a tree and correct copy of the foregoing document was served upon all counsel of record via postage prepaid, first class United States Mail addressed as follows: Burton Neil, Esquire Burton Neil & Associates, P.C. 26 South Church Street West Chester, PA 19382 ~,~ BE USED FOR DOMESTIC AND iN ~ ERNATIONAL MARL, DOES NOT PROVIDE FOR iNSURANCE--POSTMASTER Steven Howell Attorney At Law 619 Bridge Street New Cumberlemd, PA 17070 >S Form 3817, Mar. 1989 CITIBANK (SOUTH DAKOTA.) N.A., PLAINTIFF ROBERT HOWELL, DEFENDANT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03 - 1723 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT'S PRELIMINARY OBJECTION TO PLAINTIFF'S ANSWER TO PRELIMINARY OBJECTIONS TO: Citibank (South Dakota) N.A. c/o Burton Neil, Esquire Burton Neil & Associates, P.C. 26 South Church Street West Chester, PA 19382 NOTICE TO PLEAD YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSEIf PRELIMINARy OBJECTIONS WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED:AGAINST YOU.. MOTION TO STRIKE ANSWER TO PRELIMINARY OBJECTIONS I. Plaintiff claims the Complaint was "served on the defendant on or about April 23, 2003" and that it did not know the Defendant was represented by counsel until July 23, 2003. 2. In troth, the Complaint was served upon Steven ltowell, Esquire, who appeared at the Cumberland County Sheriffs Office on April 23, 2003 to a~eept service on behalf of the Defendant. This information would be disclosed upon the Sheriffs Remm of Service provided to Plaintiffs counsel. 3. Upon receipt of the Sheriffs Return of Service the Plaintiffknew Defendant was represented by counsel. 4. Plaintiff claims to have served a Notice of Intention to Enter Judgment by Default on May 16, 2003 on the Defendant, Plaintiffdoes not dispute that its counsel did not serve th/s Notice upon the Defendant's counsel of record who accepted service of the Complaint on April 23, 2003. : 5. Plaintiff claims to have attempted to enter a default judgment on or about June 12, 2003. Once again, Plaintiff does not serve the Defendant's eom.el with this Praecipe. 6. Plaintiff claims its failure to respond for seven (7) months to the Preliminary Objections filed of record on Tuesday, May 13, 2003 and mailed on Friday, May 9, 2003 with a U.S. Postal Service Certificate of Mailing (see Exhibit "A") ~m because it never knew: (a) Defendant had counsel until July 23, 2003; . . and Co) never received the Preliminary Objections · which the Umted States Postal Service certifies were mailed on May 9, 2003. 7. Plaintiffs Answer to Preliminary Objections fttils to conform to the Rules of Court in that it does not correctly identify the person who accepted service of the Complaint on April 23, 2003. Defendant's c°unsel accepted service before the Sheriff of Cumberland County and any assertions from ' ' Plamtaffthat the Defendant was personaily served are false. Any assertions by Plaintiffthat it did not know of the existence of Steven Howell, Esquire and his representation of the Defendant until July 23, 2003 are similarly false since his identity would have been disclosed on fl~e Return of Service. 8. In accordance with Pa. R.C.P. 1023.1 and 1023.2 the Plaintiffis required amend its Answer to Preliminary Objections to corro~*~- .A,, ......... to ~u.y I~JA~C[. a t~e ' the Return of Service' and (bi t Plalmq~,,,- .... [ ) h'uOrmatlon set forth on , , _. that ....... aos~ not to. serve ,~,~,,ao..,,~ ~. , ·. _ Notice of Intention to Enter Judg~nent by Default on May 16, 2003 or the Praecipe to Enter Default Judgment on June 12, 2003 despite Plaintiffs cotmsel's receipt of the Return of Service. WHEREFORE, pursuant to Pa. R.C.P. 1028(a)(2) Plaintift's Answer to Preliminary Objections should be stricken. Respectfully submitted, ~even anowell, Esquire ~ 619 Bridge Street New Cumbe:fland, PA 17070 (717) 770-12:77 Supreme Cmnt I.D. 62063 Attorney for Defendant Certificate of Service I hereby ~ertify that on the date set forth below a true and correct copy of the foregoing document was served upon all Mail addressed as follows: counsel of record via postage Prepaid, first class United States Burton Nell, Esquire Burton Nell & Associates, P.C. 26 South Church Street West Chester, PA 19382 Date: February 10, 2004 New Cumberland, PA 17070 (717) 770-1277 Supreme Court I.D. 62063 Attorney for Defendant Attorney at Law 619 Bridge street · New cumberland, Pennsylvania 17070 ° Telephone 7J7-770-1277 * Fax 717-770-~278 February 10, 2004 Burton Neil, Esquire Burton Neil & Associates, P.C. 26 South Church Street West Chester, PA 19382 RE: Citibank v. Robert Howell, No. 03 - 1723 (Cumberland County - Pennsylvania) Dear Burton: Enclosed is a Preliminary Objection to your Answer to Preliminary Objections. It seems to me that your office is compounding its errors. We know the following to be true: 1. My office filed of record Preliminary Objections on May 13, 2003. 2. My office mailed to your office the Preliminar.~' Objections on May 9, 2003 as set forth on the U.S. Postal Service's Certificate of Mailing. 3. I - not the Defendant - accepted service as his counsel from the Sheriff of Cumberland County on April 23, 2003. 4. Your office chose to ignore the Preliminary Objections for seven (7) months. 5. Your office chose to ignore the Sheriffs Rettma of Service which would clearly identify myself as the Defendant's counsel of record when allegedly mailing to the Defendant the Ten Day Notice or Praecipe to Take a Default Judgment. If these facts are not acceptable to you then we will need to schedule Depositions on facts in dispute. 'Very truly yours, SI-I/bth U.S, POSTAL SERVICE CERTIFICATE OF MAILING Steve~ Howell "~~ Attorney At L~ 619 Bridge Stve,~t N~w c~, P* ~o~o PS Form 3817, January 2001 CITIBANK (SOUTH DAKOTA) N.A., PLAINTIFF ROBERT HOWELL, DEFENDANT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03 - 1723 CIVIL TERM CIVIL ACTION - LAW JURY T}UAL DEMANDED ORDER OF COURT f°reg°m~NpDet~oO3~tihsi~e~'~ day °f~-' 2004 upon consideration of the · " ' ' ."~eby o~dered that~ ~ ~'m 'O~ ~ (23 the re~r/ondant ehall gl ............. .~ .... ....................... .u. widmx ~ clays ot tills dire; . _ aays oI mi~ oaTe; , .~ ~ ~ ~ of~e C~berl~d Co~ty Co~hous~ ~ ~ _, m Co~oom notice of the entry of this Order shall be provided to all parties by the party. moving Certified Copies To: ~even Howell, Esquire (619 Bridge Street, New Cumberland, PA 17070) v/E~ward J. O'Brien, Esquire (Suite 170, 1060 Andrew Drive, West Chester, PA 19380) \0 pRAECIPE FOR LisTING cASE FOR AJlGUMENT_ (Must be tlnpewritten and suk~itted in ~plicate) TO THE PROTHONOTARY OF cuMBERLAND couNTY: please lJ~t the with_in matter for the next Ar~t CouP- cAPTION OF CASE (e~tir~ caption must be stated in full) RLPProperties, LLC, ( plaintiff Township of Monroe, cumberland County, Pennsylxrania (Defendant) 1816 Civil 2003 state matter to be argued (i.e., plaintiff's motion for new t3r{al, defendant's de~ to cc~l~t, etC.): Plaintiff s Motion for S~m~nary jud~t Identify counsel who will argue case: (a) for plainti~_~fj^SL~i~%lTe~t~ownPPaRS~d,EsS~% 201, Harrisburg, PA 17110 Address ' shiremanstown PA 17011 (b) for defendant: jennifer Hipp, Esquire, 1 West Main St., ~klress: Hubert Gilroy, Esquire, 4 N. Hanover street, Carlisle, PA 17013 I will notify all parties in writing with~ two days that tbJ~ case has been listed for ~t. Ar~t CouZ-tDete: November 10, 2004 CERTIFICATE OF SERVICE I, Spero T. Lappas , Esquire, hereby certify that on this ~'~''~ day,_~xO-'',-~ /(7 2004, I am serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rule of Civil Procedure, by depositing a copy of same in the United States mail, first-class postage prepaid, as follows: Jennifer B. Hipp, Esq. One West Main Street Shiremanstown, PA 17011 Hubert X. Gilroy, Esquire 4 N. Hanover St. Carlisle, PA 17013 2HIFFMAN, BY: Sp~n&~as, Esquire St~te~l, 2080 Linglestown Road H~burg, PA 17110 (717) 540-9170 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA iDefendant: No. 03-1723 CIVIL, TERM CIVIL ACTION - LAW ORDER NOW, this of ~t0¢ 2004, the continum~ce request by Plaintiff ',~Xi::.~!~lSouth D~o a) N.A, requesting ~e Or~ Ar~m~nt on Defender's Petition to S~ik~ Praecipe to Discontinue scheduled on Monday, October 18, 2004 is O~NTED, ~d it be,reseh~uled on Monday, December 6, 2004 at ~ ~ Edward E, Guido, J. ' ~ ': ':' Irt ~ ~:' 24' ' - ::~-.::.:'~:~mg ~s comm~ieation, we advise o~ tim is a debt collector. ~-'. ':', :P,:.':iL 'I Dec. l, 2004 3'22PM 610-696-4111 Burton Neil& Assoc No.9594 P. 3 CITIBANK (SOUTH DAKOTA) N,A., ROBERT HOWBLL D~fcndan!: · IN THE COURT OF COMMON PI_~AS ; CUMBERLAND CO~, P]/lqNSYLVANIA No. 03-1723 CIVIL TERM CIVIL ACTION - LAW ORDER AND NOW, this0~ day of/~g'~,~004, based on thc Stipulation of Counsel to Continue the Hearing on Defendant's Petition to Strike Plaintiff's Praccipc to Discontinue Scheduled for Dec~bet,~. 2004, thj con?uance ~.~ GRANTED. A hearing on the rr,erit~ will b~ re,c,~hedt~l,cl on Edward E. Guido, $. In making this communication, w© advise our firm is a debt collector. "= ..... ~ec, 1, 2004' 3'22PM .... 6]0-696-4111 Burton Nell cTr~A~,~ (sol~l'H DAEOT^) ; ]~ ~ COU~,t,I' OF COMM:~ PLAAS AO~LItT HOW~ Phtm ~ CUlVlBlUtLAND CO~TY, ~SYLV~ ;NO, 04~8~ Deamdant : CIVIL ACTION · LAW Pls/ntifl', Citibeak (8outh Dako~) N.A, by 1~ ~, B~ N~ & ~d~& P.C. ~ the merits." Further, a oondition wes addod ~at Plaintiff would ~2or~cl to De~t'a dbcov~ 3, A revbe~ Ord~ was m2bsequcl2tly scut m the ~ M re, flout ~o cb,uSes, Howovef, the 4. The p~ee mqvelt two ho~ t,u ];,~m~ ~r po~ttiom on the matter. ~. It wes asreed tbf, t ,J~ mailer' b= continued to a flllle suitable to both oouflseh and the Court to allow a hurinS for ti.et len~ of time, BY A~ for Defendant · D. In making tltb comm-~,!~tlon, we advise Burt~ Neil& Associates, P.C. b & dobt collecMl'. CITIBANK (SOUTH DAKOTA) N.A. Plaintiff VS ROBERT HOWELL, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLanD COUNTY, PENNSYLVANIA NO. 03 - 1723 CIVIL TERM CIVIL ACTION - LAW IN RE: PETITION TO STRIKE PRAECIPE ORDER OF COURT AND NOW, this 3rd day of January, 2005, after hearing, the petition to strike Plaintiff's praecipe to discontinue is denied. Edward E. Guido, J. Burton Neil, Esquire Attorney for Plaintiff Steven Howell, Esquire Attorney for Defendant :mlc