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Home My WebLink About01-0656 FX ELWOOD J, YOHE, II, Plaintiff vs, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO, 2001- tP5iP CIVIL TERM CIVIL ACTION - LAW BRYAN L. SWARTZ, 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 an 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, Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 (717) 249-3166 Ii ELWOOD J, YOHE, II, Plaintiff vs, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO, 2001- t:.5(.. CIVIL TERM BRYAN L. SWARTZ, Defendant CIVIL ACTION. LAW COMPLAINT 1, Plaintiff is Elwood J, Yohe, II, an adult individual who resides at 83 Lebo Road, Carlisle, Pennsylvania 17013, 2, Defendant is Bryan L. Swartz, an adult individual with a mailing address of P,O. Box 77, 102 East Main Street, Plainfield, Pennsylvania 17081, 3, Plaintiff sold Defendant a 1996 International Truck, VIN 4, Under the terms and conditions of the sale, the Defendant was to pay the 2HSFHASR1TC051 029 on or about April 1 ,2000, monthly payments owed to Orix Credit Alliance, Incorporated, which financed the motor vehicle, The monthly payments were in the amount of $1 ,568,00 per month, 5, The Defendant has failed to make the monthly payments for the months of July through December of 2000, A copy of the agreement between the parties is attached hereto as Exhibit A and is incorporated herein by reference, 6, Pursuant to the parties agreement, the Defendant was responsible for any damage done to the vehicle, During the time that the Defendant operated the vehicle, I he caused damage to the engine, The truck had to be towed back and the towing , I expense, as well as the cost of repairs to the engine, is in excess of $20,000.00, Ii ".1._."-. 7. As a result of the Defendant's failure to pay the installment payments, Orix Credit Alliance, Incorporated, has stated that it intends to repossess the truck. It is anticipated that this repossession and resale of the truck will result in a substantial deficiency being assessed against the Defendant. 8. Plaintiff avers that the Defendant be held responsible for the future obligation to Orix Credit Alliance, Incorporated, due to its breach of the parties contract. WHEREFORE, the Plaintiff respectfully requests judgment against the Defendant in the sum of $9,408.00 for past due payments through December of 2000 owed to Orix Credit Alliance, Inc., the obligation Orix will assess against the Plaintiff after the repossession and the sum of $20,000.00 for the towing and necessary repairs to return the truck to the condition it was in when the Defendant received it. Respectfully submitted, O'BRIEN, BARIC & SCHERER By: , ~()CSf\.'~- Robert L. O'Brien, Esquire Attorney for Plaintiff I.D. # 28351 17 West South Street Carlisle, Pennsylvania 17013 robrien@obslaw.com rlo.dir/cl ients/yohe/yohe. com II VERI FICA TION I verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements made herein are made subject to the penalties of 18 Pa. C.S. ~ 4904, relating to unsworn falsification to authorities. ~~ ? EI 0 . Yohe, II Date: J - i' - C) I i' II '"' - "i'> 'd SECTION ONE MOTOR VEIDCLE PURCHASE Motor vehicle purchase, effective as of April!. 2000. is between Bryan L. Swartz. P.O. Box 77, 103 E- Main Street. Plainfield, Pennsylvania. referred to as the buyer, and Elwood J. Yohe II. of135 South Side Drive Newville. Pa l7241reffered to as seller. Buyer is purchasing the motor vehi~le descnbed as 1996 International Truck, VIN #2HSFHASR 1 TeOSl 029, referred to as the vehicle. on the following terms and conditions. SECTION TWO PURCHASE PAYMENTS 'Buyer shall resume payments for vehicle April 1 , 2000, or whenever said payment is due on vehicle beginning on April 2000 and ending when all payments to Orix Credit A lIiAn<".e are Iinished. fhe buyer shall not be held responsible for prior outstanding payments or any debts rela1;ng to this vehicle before the purchase on April 2000. After all payments to Orix Credit Allian~ are finished and the loan is paid in full, the vehicle title will be transferred to the buyer Bryan I. Swam at that time. Any ownership rights to the vehicle by the seller will be terminated at the time ~ loan is paid in fun. SECTION THREE USE OF VEffiCLE Seller shall not use or permit the use of the vehicle on a negligent or improper manner or in violation of any law, or so as to avoid any insurance covering the vehicle, or permit the 'Vehicle to become subject to any lein. charge, or emcumbrance. SECTION FOUR LICEN<:;ING AND REGISTRATION The vehicle shall bear license plates and the title shall be registered in the IIllInl: afthe buyer BrYan 1. Swartz The annual registration or license fees shall be paid by the buyer, IkY.aD I. Swartz. All license fees and highway taxes shall be paid by the buyer. SECTION FIVE MAINTENANCE AND REPAIR All service, materials, and repairs in connection with the use and operation of the vehicle shall be at buyers expense. Buyer agrees to ma;ntllin the vehicle in accordance with all service intervals recommended by the manufacturer of the vehicle. Seller sba1I not be liable for the r~ nor sba1IlIIlY such reapirs be charged to seller. SECTION SIX RISK OR LOSS OR DAMAGE Buyer shall bear all risks or damage or loss of the vehicle, or any ponion of the vehicle, ' not covered by insUrance, All replacements. repairs, or substitutions of parts or equipment ~ " acc-.inQS to the vehicle. EXHIBIT "A" SECTION SEVEN TERMINATION OF SALES AGREEMENT The owner will terminate the sales agreement ifno payments are being made to ~ Credit Alliance; a. Default by buyer in payment or performance of any of sellers obligations. b. Expiration or cancellation of any policy of insurance agreed to be paid by buyer. SECTION EIGHT PROOF OF PAYMENT A copy of each monthly payment to Orix Credit Alliance will be photo copied and sent to Elwood J. Y ohe II for proof of payment. SECTION NINE RETURN OF VEHICLE On expiration oftbe sales agreement, or earlier termination of the sales agreement. as herein provided, buyer shall retUrn the vehicle to the seller in the same condition as when received, less reasonable wear and tear, at sellers address herein, or any other location specified by seller. ' In wimess whereof; the parties have executed this sales agreement at (J<{,/O 3/ t)t) the day and year first written above. ~ ~. ~~ UcY. Bey . Swartz WItness -~flgLlt2/1r WJtness .' I I .~ ~~." ""'. SHERIFF'S RETURN - REGULAR CASE NO: 2001-00656 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND YOHE ELWOOD J II VS SWARTZ BRYAN L DAWN KELL , Sheriff or Deputy Sheriff of Cumberland county,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon SWARTZ BRYAN L the DEFENDANT , at 0013:24 HOURS, on the 15th day of February, 2001 at 103 E MAIN ST PLAINTFIELD, PA 17081 GERALDINE WALLACE (MOTHER IN by handing to LAW) a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18.00 3.72 .00 10.00 ..00 31.72 So Answers: tr~JA~<~~ R. Thomas Kline 02/16/2001 O'BRI~N, BARIC & SCHERER Sworn and Subscribed to before By: ~QWY\~. W Deputy Sheriff me this "" .)(" ~. "1 day of i J~ "7~/ A.D. elI!:' " . fhd),.o. ~ othonotary 'J _> ~ 0 '" ' ,- ,,~. _ ,'{ .- '~'"".' . ", ....~ ',' . -'~:,:,~:,~}"~,:-,-;,~"":.-~;:' , --,' ;/:,~; ELWOODJ. YOHE,II, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : CNIL ACTION - LAW : NO. 2001-656 CNIL TERM BRYAN L. SWARTZ, Defendant NOTICE TO PLEAD TO: ELWOOD J. YOHE, II c/o his attorney, Robert L. O'Brien, Esquire 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. LAW OFFICE OF MICHAEL J. HANFT By. /L. (~ Richard L. Webber, Jr., Esquire Attorney J.D. No. 49634 19 Brookwood Avenue, Suite 106 Carlisle, P A 17013 (717) 249-5373 Attorney for Defendant , , - ;.,J , ~_ ,,__,,-'_.' - ~I ' - '.; ,.,-- ":;"Fe'" . " ;,;::.;-~ ELWOOD J. YORE, IT, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION - LAW : NO. 2001-656 CIVIL TERM BRYAN 1. SWARTZ, Defendant PRELIMINARY OBJECTIONS AND NOW comes the Defendant, Bryan 1. Swartz, by and through his attorneys, Richard 1. Webber, Jr. and The Law Office of Michael J. Hanft, and files these Preliminary Objections pursuant to Pa. R.C.P. No. 1028(a)(3) and (4), as follows: BACKGROUND 1. On or about January 31, 2001, Plaintiff filed a Complaint. 2. In the Complaint, Plaintiff alleges that Defendant breached a written agreement between the parties relating to the purchase of Plaint iff s motor vehicle by Defendant. A copy of the agreement is attached to the Complaint and labeled as Exhibit A. I. - INSUFFICIENT SPECIFICITY 3. Paragraph 1 through 2 above are incorporated by reference herein. 4. Paragraph 6 of Plaintiff s Complaint alleges that Defendant is responsible for damage to Plaintiff s vehicle and that Plaintiff incurred towing expenses and costs of repair to the engine in excess of $20,000.00. 5. The Complaint fails to specifically state and itemize the towing expenses and costs to repair the vehicle incurred by Plaintiff, including amounts, dates, and payees. " ~ " . I",' ^__ ~ "'b k . ~:. - C-,,-, "--.~,, :;>, .---~"~ -, . '~ ,- '- ,-.;'-tJi 6. Pennsylvania Rule of Civil Procedure No.1019(f) requires that averments oftime, place and items of special damage be specifically stated. WHEREFORE, Defendant respectfully requests that this Honorable Court grant its Preliminary Objections and dismiss Plaintiffs Complaint. II. - LEGAL INSUFFICIENCY 7. Paragraphs I through 6 above are incorporated by reference herein. 8. Paragraph 7 of the Complaint states that Plaintiffs creditor, Orix Credit Alliance Incorporated, intends to repossess the vehicle (truck) and that the anticipated repossession of the vehicle will result in a substantial deficiency being assessed against the Plaintiff. 9. Paragraph 8 of the Complaint avers that the Defendant be held responsible for Plaintiff s future obligation to Orix Credit Alliance, Incorporated. 10. Plaintiff is barred from recovering from Defendant for events and damages that are speculative in nature. 11. The written agreement upon which Plaintiff bases this action does not impose an obligation upon Defendant to compensate Plaintiff for monies owed by Plaintiff to Qrix Credit Alliance, Incorporated. 12. For reasons stated above, Plaintiff has failed to state a cause of action relating to obligations to Orix Credit Alliance, Incorporated for which relief can be granted. , , , ,--'~j J :'- ~" ,'-";-"~'~ U,'; --~-- -, -,,,"....,.,,- '--:'.-. """~~^ , -k;'~(;~ WHEREFORE, Defendant respectfully requests that this Honorable Court grant its Preliminary Objections and dismiss Plaintiffs Complaint. LAW OFFICE OF MICHAEL J. HANFT By: -z-/ /2- v' /' /L 4 Richard L. Webber, Jr., &quire Attorney J.D. No. 49634 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013-9142 (717) 249-5373 Attorney for Defendant ~i ;":;"'" :".:" ',:'".{.:, I ~; -.- ,-';.~V;_ :-;-; ',-', ~ ';~."''-'' ,- ,~-,--' ;- <,,-h,,~t ";, ""' '''"'~;,," - ';<, -", 1':'- VERIFICATION I verifY that the statements made in this Preliminary Objections are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. Date: 5Jbo/O) ?"0 /lr~~ Richard L. Webber, Ir. Attorney for Defendant ,-,-j - _ ~ _~ L- _ .>~- -, ~" ,-,,, -;",'" " ,---,", ' ":!:; CERTIFICATE OF SERVICE / [' AND NOW, this ~ day of ""4('6-4 , 2001, I , Richard L. Webber, Jr., Esquire, hereby certify that I have this day served the following person with a copy ofthe foregoing document, by depositing same in the United States Mail, First Class, Postage Prepaid, addressed as follows: Robert L. O'Brien, Esquire O'BRIEN, BARIC & SCHERER 17 West South Street Carlisle, PA 17013 LAW OFFICE OF MICHAEL J. HANFT /}/'lj f1/A...J~ Richard L. Webber, Jr., Esquire Attorney J.D. No. 49634 19 Brookwood Avenue, Suite 106 Carlisle, P A 17013-9142 (717) 249-5373 Attorneys for Defendant F:\User Folder\Firm Docs\Qendocs200 1 \2051-1 preobject.l.wpd '""'" ~. " ELWOOD J. YOHE, II. Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 2001-656 CIVIL TERM BRYAN L. SWARTZ, Defendant CIVIL ACTION - LAW PLAINTIFF'S RESPONSE TO DEFENDANTS PRELIMINARY OBJECTIONS 1. Admitted. 2. Admitted. 3. Admitted. I. INSUFFICIENT SPECIFICITY 4. Admitted. 5. At the time the Complaint was filed, the truck tractor had been repossessed by Orix Credit Alliance. Despite repeated requests to John's Mobile Repair Service, where the vehicle was towed to, repaired and stored, that business has not responded. Plaintiff anticipates the information will have to be obtained by subpoena. John's Mobile Repair Service provided an oral estimate to Plaintiff to repair the engine of $18,000.00. 6. States a conclusion of law to which no response is necessary. II. LEGAL INSUFFICIENCY 7. The Plaintiff incorporated his responses in Paragraphs 1 through 6 , herein. ii '0'" ,-" <".,. ,.,.-,,-- ;- " '.,~ .- -; "'--'" 'lIIIi&ii, " , 8. Orix Credit Alliance has repossessed the vehicle and has not notified the Plaintiff of the disposition of the vehicle and any deficiency associated therewith. Plaintiff's counsel has called Orix on two occasions requesting it's claim and has received no response. 9. Admitted. 10. The damages are not speculative, but are subject to a determination once Orix Credit Alliance notifies the Plaintiff of the deficiency after the repossession and sale of the vehicle and John's Mobile Repair Service provides the requested information. The Plaintiff believes that John's was paid by Orix before they released the truck. 11. The contract that the parties entered into provided that the Defendant had the obligation to return the vehicle in the same condition as when received. The vehicle was damaged while in the possession of the Defendant and accordingly, the resulting damages including the towing, storage and deficiency are all resulting from the Defendant's breach of the contract between the parties. WHEREFORE, the Plaintiff respectfully requests that the Defendant's Preliminary Objections be dismissed. Respectfully submitted, O'BRIEN, BARIC & SCHERER By: ~~ Robert L. O'Brien, Esquire Attorney for Plaintiff I.D. # 28351 17 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 i i rlo.dir/clientsfyohe/yohe.res II '" . VERIFICATION I verify that the statements made in the foregoing Plaintiff's Response to Defendant's Preliminary Objections are true and correct. I understand that false statements made herein are made subject to the penalties of 18 Pa. C.S. ~ 4904, relating to unsworn falsification to authorities. /~ ~ Elwood . Y. e, II Date 5-10-0 i II