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HomeMy WebLinkAbout03-1742ROBERT PHAM IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PLAINTIFF V. NO. 03 WILLIAM KEVIN KELLY, dba HOMELYNX CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days,after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and 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 REFERRAL SERVICE CUMBERLAND COUNTY BAR ASSOCIATION 32 Bedford Street Carlisle, PA 17013 717-249-3166 NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notifcacion. Usted debe presentar una apariencia escrita o en persona o por abodago y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una Orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o ostros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENT ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. LAWYER REFERRAL SERVICE CUMBERLAND COUNTY BAR ASSOCIATION 32 Bedford Street Carlisle, PA 17013 717-249-3166 ROBERT PHAM IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PLAINTIFF N. NO. 03 , 174/;L- WILLIAM KEVIN KELLY, dba HOMELYNX CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT COMPLAINT AND NOW, comes the Plaintiff, Robert Pham, by and through his attorney and files this Complaint, as follows: 1 2 3 4 5. Plaintiff, Robert Pham, is an adult individual who resides at 210 West Locust Street, Enola, Pennsylvania. Defendant, William Kevin Kelly, is an adult individual who conducts business under the fictitious name of "HOMELYNX" with an address of 565 Greenfield Road, Suite 149, Lancaster, PA 17601, and over the Internet at the web site WWW.HOMELYNX.NET In the summer of 2002, Plaintiff and Defendant entered into an agreement whereby Defendant would provide real estate services to Plaintiff in the sale of Plaintiffs residence at 1106 Wansford Road, Mechanicsburg, PA 17055. Plaintiff learned of Defendant's services through a magazine placed in supermarkets in Cumberland County advertising Defendant's services. It is believed and therefore averred that defendant advertises in various mediums throughout Cumberland County. 6. Plaintiff, with the assistance of Defendant's real estate services, sold his residence on our about September 9, 2002, with such closing occuring in Cumberland County. 7. At the time of Closing on Plaintiffs sale of his residence, Defendant proposed, in connection with the return of title insurance proceeds to Plaintiff, that Plaintiff invest the sum of $8,500 into Defendant's business, pursuant to a written agreement (hereinafter referred to as the "Agreement"). A copy of the Agreement is attached and incorporated fully herein as Exhibit "A". 8. Pursuant to the Agreement, Defendant was to return $10,000 to Plaintiff on or before September 19, 2002. 9. On September 19, 2002, Defendant passed a check in the amount of $10,000 to Plaintiff. The check was drawn on the First Union National Bank account of W. Kevin Kelly, 565 Greenfield Road, Suite 149, Lancaster, PA. 10. On October 11, 2002, Commerce Bank returned the check to Plaintiff for the reason that payment was "STOPPED" by the Defendant. Commerce Bank charged Plaintiff a $7.00 fee. 11. Plaintiff advised Defendant on numerous occasion that the check payment was "STOPPED." 12. In December, 2002, Defendant paid Plaintiff $500.00 in partial payment of his obligation, stating that financial constraints prevents meeting the full obligation. 13. In January, 2003, upon Plaintiffs further demand for payment, Defendant promised an additional $1,000 return on investment if Plaintiff would be patient and provide some additional time for Defendant to meet his obligation. 14. Defendant has since failed to correct these breaches of payment obligation. COUNTI BREACH OF CONTRACT 15. Paragraphs 1 through 14 are incorporated herein by reference. 16. Defendant has breached the Agreement by: a. failing to pay the obligation when due; and b. failing to act in good faith and with fair dealing. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment for him and against Defendant in the amount of $10,507, and further award interest, costs of suit, and all other relief allowed by law. COUNT If FRAUD 17. Paragraphs 1 through 16 are incorporated fully herein by reference. 18. Defendant knowingly and/or recklessly made materially false representations to Plaintiff regarding its ability to perform his payment obligation on September 19, 2002 and ability and intention to make his payment obligation. 19. Plaintiff justifiably relied on these material misrepresentations in entering into the Agreement, and further providing defendant additional time to meet his obligations under the Agreement. 20. Due to such reliance, Plaintiff has suffered damages, and continues to suffer such damages. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment for him and against Defendant in the amount of $10,507, and further award interest, costs of suit, punitive damages and all other relief allowed by law. COUNT III UNFAIR TRADE PRACTICES ACT 21. Paragraphs 1 through 20 are incorporated fully herein by reference. 22. Defendant's conduct, as more fully sated above, constitutes unfair and/or deceptive acts or practices in that Defendant: a. offered an investment opportunity to Plaintiff in the nature of a "Pyramid Scheme" or other deceptive investment opportunity in connection with the sale of Plaintiffs residence and settlement thereon; or b. engaged in other fraudulent and/or deceptive conduct which created a likelihood of confusion and misunderstanding. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment for him and against Defendant in the amount of $10,507, and further award interest, costs of suit, attorney's fee treble damages and all other relief allowed by law. RESPECTUFLLY SUBMITTED, ROBERT C. MAY, ATTORNEY FOR PLAINTIFF By: Robert C. May Attorney I. D. # 65602 The Law Firm of May & May, P.C. 3438 Trindle Road, Suite 201 Camp Hill, PA 17011 717-612-0102 EXHIBIT A AGREEMENT Iyilx LINKING BUYERS r0 SELLERS wirN CONrLErE REAL ESrArE SOLOr/ONB September 9, 2002 Robert Pham 1106 Wansford Road Mechanicsburg, PA 17050 Dear Robert: INIX For the rove tm nt of $ cs . G? OrD you will receive a return of before on or Within seven (7) business days, you will also receive an additional $250.00 from title insurance proceeds. Thank you for your business. Sincerely yours, f W. Kevin Kelly"yy 565 Greenfioad Suite 149 Lancaster, PA 17601 Www.homelynx.NET a aaaauss URNEN ratty..., +?a4+eon wwb full iENNICE NEMONN www.hbaneawwk.?am :m:•, w:rr °anrriwm W un n7.ais.assi 7n..24.82M VERIFICATION The undersigned, ROBERT PHAM, hereby verifies and states that: 1. The facts set forth in the foregoing Complaint are true and correct to the best of his knowledge, information and belief; and 2. He is aware that false statements herein are made subject to the penalties of 18 Pa. C. S. § 4904, relating to u hnri47n.. t Dated: APRIL /0 '2003 -- .. . 1 lr-%Ivl f? N? i?n V3 (Jr SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2003-01742 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND PHAM ROBERT VS KELLY WILLIAM KEV:IN'DBA HOMELY R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: KELLY WILLIAM KEVIN DBA HOMELYNX but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of LANCASTER County, Pennsylvania, to serve the within COMPLAINT & NOTICE On May 27th , 2003 , this office was in receipt of the attached return from LANCASTER Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep Lancaster Cc 43.30 .00 80.30 05/27/2003 MAY & MAY Sworn and subscribed to before me this a W day of spy A/. ?D . 7 Prot honotafy' ' So answ s: ;?Thomas Kline Sheriff of Cumberland County SHERIFF-'S OFFICE: 60 Ni DUKE STREET, P.O. BOX 63480, LANCASTER, PENNSYLVANIA 17608-3480 a (717) 299-8200 SHERIFF SERVICE _ PLEASE TYPE OR PRINT LEGIBLY. PROCESS RECEIPT, and AFFIDAVIT OF RETURN DO NOT DETACH .ANY COPIES. I PLAINTIFF/S/ 2 COURT NUMBER Robert Pham 03-1742 civil 3 DEFENDANT/S/ 4 TYPE OF WRIT OR COMPLAINT William Kevin Kelly, dba HOMELYNX Civil Notice & Complaint SERVE 5 NAME OF INDIVIDUAL. COMPANY CORPORATION, ETC. TO BE SERVED 0 William Kevin Kelly 6. ADDRESS (Street or RFD, Apartment No_ City, Boro. Twip State and ZIP Code) AT 565 Greenfield Road, Suite 149, Lancaster, PA 17601 7. INDICATE UNUSUAL SERVICE: D DEPUTIZE D OTHER „„???? Now, April 17 20 03 I, SHERIFF OF??yy?B4Lt? COUNTY, PA., do here y?d?P utize the S1?e ' 1 Lancaster County to execute this Writ .3 urn thereo l4 to law. This deputation being made at the request and risk of the plaintiff.. ////....???""''""""___e.-r?'?''°"="""".dy SHERIFF F OF 400M? COUNF, S. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE: Cumberland Please mail return of service to Cumberland County Sheriff NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN -Any deputy sheriff levying upon or attaching soy property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of Such deputy or the sheriff to any plaintiff he n for any loss. destruction or removal of any such property before sheriff's sale thereof 16 . ]hereby CERTIFY and RETURN that I D have personally served, O have legal evidence of service as shown in "RemarksD have executed as shown in "Remarks'. the writ or complaint described on the individual, company, corporation, etc., at the address shown above or on the individual, company, cor- T ionetcat the address inserted below by handing a TRUE and ATTESTED COPY thereof7 ereby certify and return a NOT FOUND because I am unable to locate the individual. company, corporation, etc named above. (See remarks below) 18 a and title of individual served (if not shown above) (Relationship to Defendant) 119 LNo Service Sae Remarks aelow (NO 30) 20. Address of where sewed (complete only if different than shown above) (Street or RFD, Apartmill City,Boro. Two 21 Date of Service) 22 Time State and Zip Code) PM EDST 23. ATTEMPTS Miles Dep Int. DeIt Miles Dep. Int. Dote Miles Dep. Int. Date Miles Dep. InL Date Miles Dep. Int. s? Sam/ ' ,1 -? C 24. Advance Costs 25. Service Clasts 26 Notary Cert. 27. Mileage/Postage/N.F. 28 Total Costs 29. COST DUE OR REFUND o.o0 3c.so I I ?v ISM `U&0 30.IREMARKS l . .00 3G.50 . '3 O /LfU VgV , l/h _??? ?/G9?/•?a`'?/ Lu ?L???y,P ST Al 31. AFFIRMED a Vds;ur e d to before e This 32S33 Date Z Q 34d??C? aY[ vkn/ WAIKZ? 20 Dep e 35 S36 Date 3T Pmt0-N,r SHERI F OF LANCASTER COUNTY MY COMMISSION EXPIRES 1. WHITE - Issuing Authority 2. PINK - Attorney 3. CANARY - Sheriff's Office 4. BLUE - Sheriff's Office 9. SIGNATURE of ATTORNEY or othr ORIGIN R 10 . TELEPHONE NUMBER t t GATE . ?,.? C. 717-612-0102 4/16/2003 _ 12. SEN NOTICE OF SERVICE COPY TON E AND ADDRESS BELOW: (This area moat be completed if notice is to be mailed) Robert C. May, Esquire The Law Firm of May & May, P.C. 3438 Trindle Road, Suite 201, Camp Hill, PA 17011 SPACE BELOW FOR USE OF SHERIFF ONLY - DO NOT WRITE BELOW THIS LINE 13. I acknowledge receipt of the writ ( NAME of Authorized LCSO Deputy or Clerk 14. Dale Received 15 . Expiration/Hearing date or complaint as indicated above ( ANNETTE WALTON (717) 295-3609 l 4/21/03 5/16/03 TE?fl 1F'S OFFICE ? ., F 50 NORTH OUKF STREET, N.O. BOX 83480, LANCASTER,. PENNSYLVANIA 17608-3480 • (717) 299.8200 - - --?- SHE IFF+RVIE PLEASE TYPE OR PRINT } " j PROCESS RECEIPT and FID VIT OF RETURN DO NOT DETACH ANY COPIES 3 L PLAINTIFF/S/ 2 COURT _. "oJert ",ia1:l 03-1742 civil 3 DEFENDANTfSf 4 TYPE OF WRIT OR COMPLAINT Qi`1 'LYiQR CiviAt Notice & Co nplaint 'illia,, Nevin c y, '. SERVE 5. NAME OF INDIVIDUAL C61.1PANY CORPORATION, ETC., TO BE SERVED 4lillia a t?'(Iv 6 ADDRESS (Street or RFD Apartmept No., City. BBoth, Twp., State and ZIP Code) - AT 555 r ?d?1? Ict aEd, S11iL-e 149, f,an aster, Pa. 17601 7. INDICATE UNUSUAL SERVICE 11 DEPUTIZE {7 DTHER. Lt 1 17 Aprz " ? . Now, I, SHERIFF OF ?AfEfi COUNTY, PA., do here dapuhze the Sh rig j 20 Lancaster County to execute this Writ aro?ff a yi to law: This deputation b(:ing made t}? 1e re?,tl?st and risk of the plain iff coa?ex t t V.a,. S. SPECIAL INSTRUCTIONS OR OTHER INFO?ilAT10N THAT WILL ASSIST IN EXPEDITING SERVICE: (1.Tnber) and Please IT,,,11 reti3 n of service Lo Clanber7and Colmty Sheriff A NOTE ONLY APPLICABLE ON WRIT OF EXECUT ION. N.B. WAIVER OF WATCHMAN -Any deputy sheriff levying upon or attaching any property under . within writ may leave same without a watchman, m custody of whomever is found m possession, after notifying person of levy or attachment, witho U6aability on i the part of such deputy or the sheriff to any amh0h am for any loss. destruction or removal of any such property before sheriff's sate thereof. N 9. SIGNA URE of ATTORNEY or oth RI ffi 9 10. TELEPHONE NyfijWR 11 DATE [ C 17170612-0102 , 4/1 /2003 N NOTICE OF SERVICE COPY TO N EE AN b ADDRESS BELOW: (This area must be corfipletad if notice is to be mailed) it ,?,12. SE Rf,bert C. hlay, Fsau,.;r_' 'rile Law Fir,n of May ? 'I?y, •",C• is, 3435 Trindle Rosa, Saits 201, Cainp Rill, PN 17011 SPACE BELOVJ FOh IUSE OF SHERIFF ONLY - DO NOT WRITE BELOW THIS LINE 13. 1 acknowledge receipt of the wof NAME of Authorized LCSO Deputy or Clerk 14. Data Received 15. Expiration/Hearing date orcomplaintas indicated above i?.PINBT'J'E WALTON (717) 295-3609 4i'21J03 1 5I16J03 v 16. 1 hereby CERTIFY and RETURN that I ? have personally serwed.0 have legal evidence of service as shown in "Remarks", 7 have executed as shown in. Remarks". the writ or complaint tlescribed nth@fndwidualproperty, corporation etc, at the addres%shown above or on theindividuel, company.,cer „, --? pGp ration, etc . at the address inserted below by andvtg a TRUE Ind ATTESTED COPY thereof: 17. [yl hereby certify and return a NOT FOUND because I am Unable to Iota the individual. Company, corporation, etc named above. (See remarks below) ' YB a and title of individual served (it npj'e ow'r'abevel (FlAaflonship,to Defendanlµ + + '! 'I8T9' UNO `iArwce;' I k See Remarks Below (No. 30) 20. Address of where served (complete only if different than shown above) (Street or RFD,Apahment No. City, Onto. Twp 21 Date of Servu.e 22 Time Slate and Zip Codet Put EST T 23. ATTEMPTS L.D I Miles Dep. Int. Oat} I Miles! Dep.-/Int, Date Miles IDep. Int. Dote Miles I Dap. Int. ` Date I Miles Dep. Int. Sam/ I} r 7I` 24, Advance Costs 25. Service CX71 osts 26. Notary Cert. 27. Mileage/Postage/N. F. 28 Total C sts 29. COST DUE OR REFUND r?yyy 11 7! ?f(? 150.00 3b:5 1 ?v C7 % 3U ??? LF D7K EMARK6: i 17 4???+ f(4-r ?LjUjqLj 6 TA. .??? l?l !i"?:.-'h4.?'X? f`'' ? /<%c ?c.. ? A?zr?? _Cr ? i ?/c, ?Z.?l fir,-o7,GCji-.?(o SO ANSWER. 3T AFFIRMED ands dHWbCbre me !{I L^ 32 2 Si al if of 37 Date y ?* OeP if 4 20 34day or rte`? IM 2 35 s gnamryl ?Ir,",, ? 3e pale 1 l o-3 / 414, 7 ?y? V:oTq?? -SIfE71IFF OF LANCASTERCBUNTV ... MMISSION EXPIRE S •?••. ,... F ,„ WHITE - Issuing Authority 2. PINK " Attorney 3. C.INARY - Sheriff's Office 4. BLUE - Sheriffs Office ROBERT PHAM, Plaintiff V. WILLIAM KEVIN KELLY, d/b/a HOMELYNX, Defendant :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA :No. 2003 - 1742 Civil Term :CIVIL - AT LAW :JURY TRIAL DEMANDED MOTION FOR LEAVE TO SERVE COMPLAINT VIA PRIVATE PROCESS SERVER AND NOW, comes the Plaintiff, Robert Pham, by and through his attorneys, Rominger, Bayley & Whare, and files this Motion for Leave to Serve Complaint via Private Process Server, and in support thereof avers as follows: Plaintiff filed his Complaint in the above-captioned matter on or about April 10, 2003, and pursuant to Pa.R.C.P. 400, the attendant attempt to serve process was initiated by the Cumberland County Sheriffs Office. 2. As the Defendant's address was located in Lancaster County, the Cumberland County Sheriff s Office deputized its Lancaster County counterpart to effectuate service of said complaint. 3. The Lancaster County Sheriffs Office was unable to serve Defendant at the address identified in Plaintiffs Complaint; to wit Lancaster County Sheriffs Office Lt. James Montanez remarked on the applicable Process Receipt that Defendant "no longer lives" at the address provided, and that the "rental office verified def moved out more than 6 months ago, and left no forwarding address ... post office also verified as moved and left no forwarding address." A copy of said Process Receipt is attached hereto as Exln`bit A and incorporated by reference as if fully incorporated herein. 4. Defendant has engaged in a pattern of behavior intended to obscure his physical whereabouts, thereby furthering his ability to engage in questionable business activities; as a result, and despite his best efforts, Plaintiff has been unsuccessful in ascertaining Defendant's present whereabouts or whether Homelynx maintains a physical office presence. 5. Defendant continues to maintain a website at "www.homelynx.net." 6. Several telephone numbers are provided on the website referenced above; however, the numbers are assigned to cellphones and, further, the numbers are not registered in Defendant's name. 7. Plaintiff has called the telephone numbers on several occasions with Defendant himself sometimes answering the calls. 8. Defendant's continues to hold himself out as a facilitator of real estate transactions. 9. Plaintiff believes that Defendant would personally respond to a solicitation by a potential client seeking assistance in the sale of real estate. 10. Plaintiff proposes to serve Defendant with original process by hiring a professional private process server to contact Defendant under the pretense of being a potential customer seeking assistance in the sale of real estate; if and when Defendant arrived to examine the property, the process server would serve the Complaint on Defendant. WHEREFORE, Plaintiff moves this Honorable Court to sign the attached proposed Order, thereby enabling Plaintiff to serve his Complaint upon Defendant. Very truly yours, BAYLEY & WHARE es' Nelson, Esquire Attom .D. No. 91144 Karl E. Rominger, Esquire Attorney I.D. No. 81924 155 South Hanover Street Carlisle, PA 17013 Tel: (717)241-6070 Fax: (717)241-6878 Attorneys for Plaintiff SHERIFF'S OFFICE 50 NORTH DUKE STREET, P.O. BOX 83480, LANCASTER, PENNSYLVANIA 17608 3400 • (717) 299.8200 SHERIFF SERVICE PLEASE TYPE OR PRINT LEGIBLY. PROCESS RECEIPT, and AFFIDAVIT OF RETURN DO NOT DETACH ANY COPIES. I P1-AINTIFF15/ 2 COURT NUMHLH Robert Pham 03-1742 civil 7 DEFENDANT/S/ n TYPE Of WRIT OR COMPLAINT William Kevin Kelly, dba HOMELYNX Civil Notice & Complaint SERVE 5 NAME OF INDIVIDUAL. COMPANY, CORPORATION ETC, TO BE SERVED 0 William Kevin Kelly 6 ADDRESS (Street or RFD, Apartment No., City, Born, Two , State and ZIP Code) AT 565 Greenfield Road, Suite 149, Lancaster, PA 17601 7. INDICATE UNUSUAL SERVICE: ? DEPUTIZE O OTHER Now, Apra 20 , I, SHERIFF O COUNTY, PA., do here}y deputize the Shefiff-of Lancaster County to execute this Writ andTflake; return thereof acco.r, Ing. to law. This deputation being made at the request and risk of the plaintiff. oo Please mail return of service to Cumberland County Sheriff NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: N.S. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman. in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff h in for any loss, destruction or removal of any such property before sheriff's sale thereof 9. SIGNATURE of ATTORNEY or other ORIGIN R 10. TELEPHONE NUMBER I I. DATE L. I I I r- V 1 c- area must be completed if rl Robert C. May, Esquire The Law Firm of May & May, P.C. 3438 Trindle Road, Suite 201, Camp Hill, PA 17011 SPACE BELOW FOR USE OF SHERIFF ONLY - DO NOT WRITE BELOW THIS LINE _ 13. 1 acknowledge receipt of the writ t NAME of Authorized LCSO Deputy or Clerk 14. Dale Received I S Expuallonmeanng dat or complaint as indicated above ( ANNETTE WALTON (717) 295-3609 4/21/03 5/16/03 16 1 hereby CERTIFY and RETURN That I n have personally se"ed,0 have legal evidence of service as shown in "Remarks".!-1 have osecuted as shown in "Remarks". the writ or complaint described on the individual. company, corporation, etc at the address shown shove or on the individual, company. 001 . p ration, etc.. at the address inserted below by handing a TRUE and ATTESTED COPY thereof 17 hereby certify and return a NOT POUND because I am unable to locate the indioidual, Company, corporation, etc named above. ISee rerna0s below) 18 r e and title of individual served Of not shown above) (Relationship to Defendant) 19 f: No Service Sen Remarks Betty. (No 30) 20 Atltlre55 of where serve0(COmpICIF. only it different than shown anovel (Street OrRFD.Apanmenl lJC Cny.NprO.Twp ?1 Dale of Semce 22 Tlme State and Zip Code) AM -----?_- EDST Date s ; Dap. In;. 24. Advance Costs, 25 Service Cbsts 26 Notary Can 27. Mileage/Postage/N. F. 28 Total Costs. 29. COST DUE OR REFUN 11.7! `Ii iif-, (--% IS ??,3? iC?G 7u 30. E MARKS. fi50-9 Cr.-50 /l!D fill {?? ?`(o .?aLiG? S T.A. 3:. AFFIRMED P. 'd U)/,f/?a/beedd to before me this 34 day or !"Z-e1?.9 Ll_ ..?. nmmo?al..v 3 7 ???? - -- i J-- V-SNEFIIFF OF LANCASTER COUNTY f I'? ]6 pain i. MY COMMISSION EXPIRES _ I. WHITE Issuing Aulhonly 2. PINK - Allolney 3. CANARY - Sheriff's Olficr; 4. FLUE - Sheriff:: Office c, c' ? ? o -n r; `: , cn ? '` ? m v\.a. N ?7 t7 t'> ? .? Yr '` ? ??rl -F (' 'S ROBERT PRAM, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. No. 2003 - 1742 Civil Term WILLIAM KEVIN KELLY, CIVIL - AT LAW d/b/a HOMELYNX, Defendant JURY TRIAL DEMANDED PRAFCIPE TO REINSTATE COMPLAINT To The Prothonotary: Pursuant to Pa.R.C.P. No. 401(b)(1), please reinstate the Complaint in the above- captioned matter. Respectfully submitted, BAYLEY & WHARE qlq-a0'?' I, lson, Esquire ev I. D. No. 91144 Karl E. Rominger, Esquire Attorney I.D. No. 81924 155 South Hanover Street Carlisle, PA 17013 Tel: (717)241-6070 Fax: (717)241-6878 Attorneys for Plaintiff cn j Cl1 ROBERT PHAM IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. WILLIAM K. KELLY NO. 2003 - 1742 CIVIL TERM d/b/a HOMELYNX ORDER OF COURT AND NOW, this 4T" day of OCTOBER, 2005, it appearing that Plaintiff s Motion for Alternative Service does not comply with Pa. Rule of Civil Procedure 430, it is DENIED without prejudice. Court, E. Guido, J. /dames Nelson, Esquire 155 South Hanover Street Carlisle, Pa. 17013 :sld O? . +t '? CLi ;J ZS DUI':" ''- KJO SON ht `v'1G1v US:',ici Hl ;0 ROBERT PHAM, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. No. 2003 -1742 Civil Term WILLIAM KEVIN KELLY, CIVIL - AT LAW d/b/a HOMELYNX, Defendant JURY TRIAL DEMANDED PRAECIPE TO REINSTATE COMPLAINT To The Prothonotary: Pursuant to Pa.R.C.P. No. 401(b)(1), please reinstate the Complaint in the above-captioned matter. Respectfully submitted, Rominger & Associates Date: October 31, 2008 Kad E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court W# 81924 Attorney for Plaintiff ROBERT PHAM IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PLAINTIFF V. : NO. 03 - OV A% Cat A( WILLIAM KEVIN KELLY, dba HOMELYNX CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and 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 REFERRAL SERVICE CUMBERLAND COUNTY BAR ASSOCIATION 32 Bedford Street Carlisle, PA 17013 717-249-3166 NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notifcacion. Usted debe presenter una apariencia escrita o en persona o por abodago y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una omen contra usted sin previo aviso o notiflcacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o ostros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENT ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. LAWYER REFERRAL SERVICE CUMBERLAND COUNTY BAR ASSOCIATION 32 Bedford Street Carlisle, PA 17013 717-249-3166 ROBERT PHAM IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PLAINTIFF V. NO. 0-3- /740, WILLIAM KEVIN KELLY, dba HOMELYNX CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT COMPLAINT AND NOW, comes the Plaintiff, Robert Pham, by and through his attomey and files this Complaint, as follows: 1. Plaintiff, Robert Pham, is an adult individual who resides at 210 West Locust Street, Enola, Pennsylvania. 2. Defendant, William Kevin Kelly, is an adult individual who conducts business under the fictitious name of "HOMELYNX" with an address of 565 Greenfield Road, Suite 149, Lancaster, PA 17601, and over the Intemet at the web site - WWW.HOMELYNX.NET 3. In the summer of 2002, Plaintiff and Defendant entered into an agreement whereby Defendant would provide real estate services to Plaintiff in the sale of Plaintiff's residence at 1106 Wansford Road, Mechanicsburg, PA 17055. 4. Plaintiff learned of Defendant's services through a magazine placed in supermarkets in Cumberland County advertising Defendant's services. 5. It is believed and therefore averred that defendant advertises in various mediums throughout Cumberland County. 6. Plaintiff, with the assistance of Defendant's real estate services, sold his residence on our about September 9, 2002, with such closing occuring in Cumberland County. 7. At the time of Closing on Plaintiffs sale of his residence, Defendant proposed, in connection with the return of title insurance proceeds to Plaintiff, that Plaintiff invest the sum of $8,500 into Defendant's business, pursuant to a written agreement (hereinafter referred to as the "Agreement"). A copy of the Agreement is attached and incorporated fully herein as Exhibit "A". 8. Pursuant to the Agreement, Defendant was to return $10,000 to Plaintiff on or before September 19, 2002. 9. On September 19, 2002, Defendant passed a check in the amount of $10,000 to Plaintiff. The check was drawn on the First Union National Bank account of W. Kevin Kelly, 565 Greenfield Road, Suite 149, Lancaster, PA. 10. On October 11, 2002, Commerce Bank returned the check to Plaintiff for the reason that payment was "STOPPED" by the Defendant. Commerce Bank charged Plaintiff a $7.00 fee. 11. Plaintiff advised Defendant on numerous occasion that the check payment was "STOPPED." 12. In December, 2002, Defendant paid Plaintiff $500.00 in partial payment of his obligation, stating that financial constraints prevents meeting the full obligation. 13. In January, 2003, upon Plaintiffs further demand for payment, Defendant promised an additional $1,000 return on investment if Plaintiff would be patient and provide some additional time for Defendant to meet his obligation. 14. Defendant has since failed to correct these breaches of payment obligation. COUNTI BREACH OF CONTRACT 15. Paragraphs 1 through 14 are incorporated herein by reference. 16. Defendant has breached the Agreement by: a. failing to pay the obligation when due; and b. failing to act in good faith and with fair dealing. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment for him and against Defendant in the amount of $10,507, and further award interest, costs of suit, and all other relief allowed by law. COUNT 11 FRAUD 17. Paragraphs 1 through 16 are incorporated fully herein by reference. 18. Defendant knowingly and/or recklessly made materially false representations to Plaintiff regarding its ability to perform his payment obligation on September 19, 2002 and ability and intention to make his payment obligation. 19. Plaintiff justifiably relied on these material misrepresentations in entering into the Agreement, and further providing defendant additional time to meet his obligations under the Agreement. 20. Due to such reliance, Plaintiff has suffered damages, and continues to suffer such damages. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment for him and against Defendant in the amount of $10,507, and further award interest, costs of suit, punitive damages and all other relief allowed by law. COUNT III UNFAIR TRADE PRACTICES ACT 21. Paragraphs 1 through 20 are incorporated fully herein by reference. 22. Defendant's conduct, as more fully sated above, constitutes unfair and/or deceptive acts or practices in that Defendant: a. offered an investment opportunity to Plaintiff in the nature of a "Pyramid Scheme" or other deceptive investment opportunity in connection with the sale of Plaintiffs residence and settlement thereon; or b. engaged in other fraudulent and/or deceptive conduct which created a likelihood of confusion and misunderstanding. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment for him and against Defendant in the amount of $10,507, and further award interest, costs of suit, attomey's fee treble damages and all other relief allowed by law. RESPECTUFLLY SUBMITTED, ROBERT C. MAY, ATTORNEY FOR PLAINTIFF By: Robert C. May Attorney I.D. # 65602 The Law Firm of May & May, P.C. 3438 Trindle Road, Suite 201 Camp Hill, PA 17011 717-612-0102 EXHIBIT A AGREEMENT h/ ?X L/MKIfI •rlrs TO sLLCL11i wirs C*VPLtrt :87: 98 TS 8OLYT/OMf September 9, 2002 Robert Pham 1106 Wansford Road Mechanicsburg, PA 17050 Dear Robert: • v? o? For the inv m t of S ANM • you will receive a return of 5117. tzwpp on or before Within seven (7) business days, you will also receive an additional $250.00 from title insurance proceeds. Thank you for your business. Sincerely yours, W. Kevin Kelly / 565 Greenf Load Suite 149 Lancaster, PA 17601 1 •r-wMw.rr. r r.>trr Imo. l.?ww trrf .w surlual i C.Ad lk y"r• 717.It4AM Y2M www.homelynx.NET 'MX VERIFICATION The undersigned, ROBERT PHAM, hereby verifies and states that: 1. The facts set forth in the foregoing Complaint are true and correct to the best of his knowledge, information and belief; and 2. He is aware that false statements herein are made subject to the penalties of 18 Pa. C. S. § 4904, relating to Dated: APRIL /0 , 2003 PHAM p N? IL W ?l lw v 11 V r: V3 ?. tJt G7 c ? J m C.0 0 Curtis R. Long Prothonotary office of the Vrotbonotarp 11 Renee K. Simpson Cumberlantl Countp Deputy Prothonotary John E. Slike Solicitor 03 -1792, CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 29TH DAY OF OCTOBER 2008 AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R C P 230.2 BY THE COURT, CURTIS R. LONG PROTHONOTARY One Courthouse Square • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6573