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HomeMy WebLinkAbout03-2535CITIBANK (SOUTH DAKOTA) N.A., PLAINTIFF N THE COURT OF COMMON PLEAS OF : ~UMBERLAND COUNTY, PENNSYLVANIA .. V. ~ SUSANN C. KAUFFMAN, : : 03-2535 CIVIl- TERM DEFENDANT ~ OF PLAINTIFF FOR JUDGMENT ON THE PLEADINGS_ BEFORE BAYLE¥, J- AND H~ AND NOW, this for judgment on the pleadings, IS GRANTED'~ Judgment is entered in favor of plaintiff Citibank (South Dakota) N.A. and against Susann C. Kauffman in the amount of $7,403.55 (,$6,221.47 plus attorney fees of $1,182.08). ORDER OF COURT -~.~['~1_--. day of September, 2004, the motion of plaintiff ,/Burton Nell, Esquire For Plaintiff ,,~_ sann Kauffman, Pro se 936 River Road Marysville, PA 17053 :sa1 to the factual allegations in plaintiffs complaint , Defendant's general denials Procedure 1029(b). constitute admissions under Pa. Rule of Civil 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. 7920 NW 110th Street Kansas City, MO IN THE COURT OF COMMON PLEAS Vo Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA S C KAUFFMAN AKA SUSANN C KAUFFMAN 936 River Road Marysville, PA 17053-9634 Defendant · 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 D° 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 800-990-9108 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. 7920 NW 110th Street Kansas City, MO Plaintiff · IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA S C KAUFFMAN AKA SUSANN C KAUFFMAN 936 River Road Marysville, PA 17053-9634 Defendant · CIVIL ACTION - LAW Complaint 1. The plaintiff is Citibank South Dakota N.A., with place of business located at 7920 NW 110th Street, Kansas City, Missouri. 2. The defendant is S C Kauffman aka Susann C Kauffman, who resides at 936 River Road, Marysville, Cumberland County, Pennsylvania. 3. At the defendant's request, plaintiff issued the defendant a credit card with account number 5491130325200202 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 for cash advances from vendors who accepted plaintiff's 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 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 $6,221.47. 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 billing statement. As such, defendant is in default of the terms and conditions governing the use of the credit card. 7. Although demand has been made by plaintiff upon defendant to pay the sum of $6,221.47, the defendant failed and refused to pay all or any part thereof. 8. Plaintiff alleges it is entitled to recovery of its attorneys 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 attorneys fees in the sum of $1,182.08. WHEREFORE, plaintiff demands judgment against the defendant in the sum of $6,221.47, attorneys fees in the sum of $1,182.08 and the costs of this action. BURTON NEIL & ASSOCIATES, P.C. Burton Neil, Esquire Attorney for Plaintiff In making this communication, we advise our firm is a debt collector. 'lin! uI p!ed ,(aql I!lUn el.,~ ilnelep aql Ol IDa qns IJ!euJiij lllaa saoueleq !lneleP ~ qo~ u~ popad Ou~q aql Io ~ep IS~U awl IO se aBesn I~ooe o s~ eo~pu mqlo Due 'Sllnelap 'uado uaaq s~ lu~oe aqi ~, Io ql~U~l cHI apnlou alei i ne ap stow Bu~m~elap ~ pemp.s~o szol~e~ Ol an lo etel Ilnelep e Ol saouereq lie uo (ele~ leUO~l~d Au. Output) ~U ~O~XN~OU~d 1V~NNV I~paJ~ J~ p~xa ~ 'anp uaq~ JoljpaJo JeqlO ~ue ~ sn queqm,0 Xue Jepun I nejap ~A II ~JEA OS~ X8~ seoueApe .qseo puc se~q~Jnd ~1 eleJ eOelueoJed lenuue t~eouenpy q~e0 pue ~emeqo~nd ebe~aua eM 'luamalels 8U~lUq I ~g Jaq~aldeS JnO~ UO Prod queq~ ~0 ~u~ S.xO J~ u. seuo bu~puodse~3 aql 'el~ IIn~lep aql ~p~esa~ suo~s~noJd ~U.~llOI ale a~ 'tua~al~lS ~UUl~q i~ lsn~nv J~ uo pale3~pu~ aleQ 5u~solO~ua~ale S~q ~alle ~ep aql uo aA,oall 3uemael6~ P~eO ~ u~ a~ueqo to ao~loN 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 true 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 unsworn falsification to authorities. Date: IN ame ~'H. Ol ll $ o ~-Z .~ 8 oo '2 0-Z SHERIFF' S RETURN - REGULAR CASE NO: 2003-02535 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CITIBANK SOUTH DAKOTA NA VS KAUFFMAN S C AKA SUSANN C KAUF BRYAIq WARD Cumberland County, Pennsylvania, says, the within COMPLAINT & NOTICE was served upon KAUFFMAN S C AKA SUSAN-N C KAUFFMAN DEFENDANT , at 1854:00 HOURS, on the 12th day of June at 936 RIVER ROAD MARYSVILLE, PA 17053-9634 by handing to SUSANN KAUFFMAN a true and attested copy of COMPLAINT & NOTICE Sheriff or Deputy Sheriff of who being duly sworn according to the together with law, , 2003 and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 11.73 Affidavit .00 Surcharge 10.00 .00 39.73 Sworn and Subscribed to before me this ~ day of  ~03 A.D. Prothonotary ' So Answers: R. Thomas Kline 06/13/2003 BURTON NEIL By: eriff IN THE COURT OF COMMON PLEASE FOR THE STATE OF PENNSYLVANIA 1N AND FOR CUMBERLAND COUNTY CITIBANK SOUTH DAKOTA N.A. SUSANN KAUFFMAN Case Number: 03-2535 ANSWER OF DEFENDANT Susann Kaufman answers the Complaint of Citibank South Dakota N.A. as follows: 1. The Defendant has insufficient information to either admit or deny the allegations presented in Paragraph 1 ofPlalntiWs Complalnt, 2. The Defendant admits the allegation presented in Paragraph 2 of Plaintifl~ s Complaint. 3. The Defendant admits in part and denies in part the allegation presented in Paragraph 3 of PlaintiWs Complaint as Defendant can nol be sure that these terms and conditions are identical to those she received when the card was issued. 4. The Defendant denies the allegation presented in Paragraph 4 of Plaimiff's Complaint. 5. The Defendant admits in part and denies in part the allegation presented in Paragraph 5 of Plaintiff's Complaint in that he does not agree with the mount of charges as stated. 6. Complaint. 7. Complaint. The Defendant denies the allegation presented in Paragraph 6 of Plaintiff's The Defendant denies the allegation presented in Paragraph 7 of Plaintiff's Complaint. The Defendant denies the allegation presented in Paragraph 8 of Plaintiff's 936 River Road Marysville, Pennsylvania 17053 717-728-1856 VERIFICATION The Defendant verifies that the statements made herein are true and correct based upon his knowledge, information and belief The statements are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unswom falsification to authorities. CERTIFICATE OF SERVICE The Defendant(s) HEREBY CERTIFY that on this ~) day of ~YCJt~l-~ , 20o__~ a copy of the foregoing pleading was mailed, first-class, postage pre-paid to: Burton Neil, Esquire 26 South Church Street Westchester, Pennsylvarda 19382 610-696-2120 Attorney for Plaintiff This document was prepared by or wilh the assistance of an attorney employed by Legal Advice Line, LLC, 888-367-5252. 89/81/2882 86:25 661-702-0317 THE DEBT 5~ILUTIDN PA6E 17 Special Power of Attorney (Person~) I, .. Su~no l~mff:msn __, Born 5/26/1950 , $o~ial Seet~ity No. 191-42-7925 do hereby appoint THE DBBT SOLUTION, INC. ("THE DI~T SOLUTION") Ioeated az P.O. Z/x 801090, Cl~i~, Cslifor~ia 91380-1090, as my hue and lawful attom~ ill f~t for me and ill nW n~me ~ for my use and benefit fol' the following purpose and with th= following powers and none other: An), and all transaetions rclatin~ to negotlagon and settlement wittl the creditors included in the servi~ agreement for the= propose of seltlin8 their claims against me. THE DEBT SOLUTION is also authorized to do all things reasonabb, nec~sa~ and appropriate to exercise thc authority 8rant*:d te it under this Power of Attorney. In additlen, I hereby appoint and authorize THE DEBT SOLUTION to request, review, and receive any luformafio~ verbal or writt~, r~gardi~ the ~oonu~ts li~d in the at~cbment ~o ~ document, via Interact, f~x and/or Unil~l $~at~ Mail I also autho~iz~ The Bank o£the Wes~ Ia communioate with and p:~vido im~r~in~ ~o THE DEBT SOLUTION regarding my accost ~ that be~k. Sueh tnfom~ation that mal, be pro~id~:l ~o£1m~es, but is not Iimi~d ~o, eleo~onie thlld ~sf~rs to nad fi'om the aoenm~ and acconnt balances. Thi~ anthoriz~gon is intended ~o be zffeotive purst~lc ~o f~l~al Regulaiion E, found ai 12 C.I:.R. 250, ~d all similar f~l~'~l and s~am stamps and regulations. This Po~r of A~rn~y revokes all e~rller pow~n of attomwy ldven by, or un behalf of me relating to the n¢'gotiation and ~element of oreditor$' clainl~ (~xo~p~ ~r powers, ifa~ly, given to Attorneys ~ Law); and shall be effecti',,e, and bindiog on me uo~ll r~vok~d by an instrument in writ~ exec u~d by Bxeeutednndefi"ectivethi. ~-~ dayof ~T~,~ State of Punosyly~onia Wig:zes* ' ' ' 'f *The witoessea sh.~l be adidas; the aeom~'-in-~.ct may not ~ ~ a ~s; ~d ~ w~ ~g ~e'~w~ of a~m~ s~ ~m~s ~e ~ing of~e Spe~ P~ of A~ by ~e P~nci~l. VOI~: (661) 362- I~ / (g00) ~T The Debt 8olution P.O. Box 801090 Santa Clarita, CA 91380-1090 Burton Nell & Associates 26 South Church St Westchester,, PA 19381-4111 Dear Sir or Madam: 12/13/2002 iR~: Susann Kauffman Acer: 10020.034.3399 Hello. I'd like to let you know that we have taken over handling the account ofSusann Kanffman to help her get out of debt. I'd like to explain what we do so we can work together to get this account handled. Our client wants to pay offher debts and try and make good on the original loans. Our client does NOT wish to file for bankruptcy. So we are helping her do this, by negotiating and settling her debt. What we are, is a debt management program. We negotiate and settle our client's debts. We do not make monthly payments, we negotiate and settle. You see, our client has recently mn into some serious financial hardship. She is simply unable to make payments to the various creditors to which she is in debt. The CCCS program is unable to help, as our Client is not able to make those payments, either. We are not a CCCS program. Many lenders we deal with confuse us with such a program, and are expecting us to do certain things that a CCCS program would At present, the client does not have enough money to settle their debt. But soon will. You will be contacted by our settlement department, who will work out a mutually agreeable settlement to close the account and handle the debt. Please contact The Debt Solution at 661-257-9755 if you have any questions. If you would like to fax us an offer, our fax # is 661-702-0317 We look forward to sorting out our client's situation with you. Thank you very much. Sincerely, Creditor Service Department The Debt Solution BURTON NEIL & ASSOCIATES, P.C. Burton Neil, Esquire, Id. no. 11348 1060 Andrew Drive, Suite 170 West Chester, PA 19380 610-696-2120 Attorney for Plaintiff CITIBANK (SOUTH DAKOTA) N.A. Plaintiff SUSANN C. KAUFFMAN Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-2535 CIVIL ACTION - LAW Motion of Plaintiff for Judgment on the Pleadings Now comes plaintiff by its undersigned attorneys, and[ moves this Honorable Court pursuant to Rule 1034 of the Pennsylvania Rules of Civil Procedure, for judgment on the pleadings and in support thereof states: 1. Plaintiff filed a complaint against defendant for the credit card account balance due it by the defendant. 2. Defendant filed apro se answer to the complaint. 3. The pleadings are closed. 4. There are neither factual nor legal issues before the Court creating a need for trial. Therefore, plaintiff is entitled to judgment as a matter of law. Wherefore, plaintiff moves this Honorable Court for judgment on the pleadings on behalf of plaintiff and against defendant in the sum of $6,221.47 plus attorney's fees of $1,182.08 for a total judgment of $7,403.55 and the costs of this action. Attorne .qJ?~,,,Associates, P.C. eil, Esquire for Plaintiff In making this communication, we advise our firm is a debt collector. BURTON NElL & ASSOCIATES, P.C. Burton Neil, Esquire, Id. no. 11348 1060 Andrew Drive, Suite 170 West Chester, PA 19380 610-696-2120 Attorney for Plaintiff CITIBANK (SOUTH DAKOTA) N.A. Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLA251D COUNTY, PENNSYLVANIA SUSANN C. KAUFFMAN : NO. 03-2535 Defendant: CIVIL ACTION - LAW Plaintiff's Memorandum of Law in Support of Judgment on the Pleadings Against Defendant I. Facts and Procedural History Plaintiff filed a complaint against defendant to recover the balance past duc on a credit card account. Defendant filed apro se answer to thc complaint. As will be seen from the discussion below thc form of pleading taken by defendant in an attempt to deny the averments of thc complaint resulted in their being admitted under Pa R.C.P. 1029(b) so that as a whole there are no facts to be litigated. The pleadings in this action are closed. The matter is before the Court on plaintiff's motion for judgment on the pleadings under Pa. R.C.P. I034(a). II. Question Presented Whether plaintiffis entitled to judgment on the pleadings under Pa.R.C.P. 1034 (a) where defendant's answer effectively admitted all the facts needed to support plaintiff's recovery and trial of this matter would otherwise be a fruitless exercise? Argument Pa. R.C.P. 1034 provides: (a) After the relevant pleadings are closed, but within such time as not to unreasonably delay the trial, any party may move for judgment on the pleadings. Note: Only the pleadings between the parties to the motion for judgment on the pleadings must be closed prior to filing the motion. (b) The court shall enter such judgment or order as shall be proper on the pleadings. "The motion for judgment on the pleadings should be granted only in clear cases, which are free from doubt, and where there are no issues of fact. The deciding court should grant judgment only where the case is so clear that a trial would clearly be a fruitless exercise." 6 Standard Pennsylvania Practice 2d Section 31:39 and the cases cited therein. Even under this stringent standard, plaintiffis entitled to judgment since the defendant'spro se answer~ effectively admitted plaintiff's case. Proceeding to trial despite those admissions would indeed be a fruitless exercise. Defendant's pleading is entirely non-factual. It consists of general denials which are admissions under Pa.R.C.P. 1029(b) which provides: Averments in a pleading to which a responsive pleading is required are admitted when not denied specifically or by necessary implication. A general denial or a demand /'or proof, except as provided by subdivisions (c) and (e) of this rule, shall have the effect of an admission. To paragraph 4 of the complaint the response was "The Defendant denies the allegation presented in paragraph 4 of Plaintiff's complaint." This same response was made to the allegations in paragraphs 6 through 8 of the complaint. In Swift v. Milner 538 A2d 28 (Pa. Super 1988), the court addressed the propriety of entering judgment on the pleadings where the defendant had responded to several allegations of the complaint with the single word "denied." In citing Rule 1029, the court noted that a general denial has the effect of an admission: We agree with the trial court's conclusion that these general denials effectively manifested Appellant's admission to the facts averred in paragraphs three through ten of Appellee's Complaint. We note that in determining the propriety of the trial court's award of a judgment on the pleadings, we must accept as tree all well-lpleaded statements of fact of the party against whom the motion is granted and consider against that party only those facts that are specifically admitted. The grant of a motion for judgment on the pleadings will be affirmed by an appellate court only when the moving party's right to succeed is certain and the case is so free from doubt that a trial would clearly be IThat defendant ispro se does not entitle him to more lenient application of court rules, absolve him of adherence to them or free him from the risk of adverse consequences for failure to do so. Peters Creek Sanitary v. Welch, 545 Pa. 309, 681 A.2d 167, 170 (1996); Jones v. Rudenstein, 401 Pa. Super. 400, 585 A.2d 520 (1991) anneal deg, 529 Pa. 634, 600 A. 2d 954 (1991); Faretta v. California, 422 US 806, 834 n. 46, 955 S.Ct. 2525, 2540 n.46, 45 L.Ed.2d 562, 581 n 46 (1975) " - a fruitless exercise. Jones v. Travelers Ins. Cch, 356 Pa. Super. 213, 514 A.2d 576, 578 (1986). In the case at bar, paragraphs three through ten of the Complaint encompassed alii of the allegations on which Appellee based his claim. By failing to comply with Rule 1029(b), the admission of ail allegations and aw,~rments resulted in the absence of material issues of fact on the issue of liability. While defendant's response consisted of more than the single word "denied," the effect is the same. As such, defendant fully admitted the allegations in paragraphs 4 and 6 through 8 of the complaint. To the first part of paragraph 3 of the complaint, defendant explicitly admits issuance of the credit card and receipt of terms and conditions. To the bal:mce of paragraph 3, defendant averred by way of denial with respect to the terms and conditions, "Defendant cannot be sure that these terms and conditions are identical to those she received when the card was issued." Defendant here is attempting to sail into safe harbor under Pa R.C.P. 1029(c) which provides: A statement by a party that after reasonable investigation the party is without knowledge or information sufficient to form a belief as to the truth of an averment shall have the effect ora denial. Note: Reliance on subdivision (c) does not excuse a failure to admit or deny a factual allegation when it is clear that the pleader must know whether a particular allegation is true or thlse. See Cercone v. Cercone, 254 Pa. Super.381,386 A.2d 1 (1978). As the note to Rule 1029(c) clearly indicates, a pleader may not avoid the pleading requirement of Rule 1029(b) when the circumstances clearly show that the pleader should know whether or not the pleading is true. Nevertheless, that is precisely what defendant is trying here. This answer fails under 1029(c) for two reasons. First absent is an averment that defendant made a reasonable investigation into the troth of the averment, which is fatal under the role. There is no requirement that a pleader state the nature and extent of the investigation but the rule is mandatory that an investigation be made. Defendant did not plead that an investigation was made. Therefore, failing to comply with Rule 1029(c) defendant is held to have admitted the allegations under Rule 1029(b). Defendant's attempted use of Rule I029(c) fails for another reason. As reflected in the Cercone note to the nde, if a pleader knows whether or not a f~:t is true or false, a specific response is required. Here defendant should know whether or not the facts are true or false. In Scales v. Sheffield Fabricating and Mach. Co., 238 Pa.. Super. 568, 393 A.2d 680 (1978) the court had to determine whether a Rule 1029(c) denial was an admission. The complaint alleged, among other things, that plaintiff's total compensation for an engineering project was to be $10,000 and that he had been paid $5,000. Defendant responded under Rule 1029(c). The court held that under the facts, the denial was an admission. When it is obvious as it is here, that the information necessary to formulate a specific denial is neither within the exclusive control of the adw~rse party nor unascertainable after reasonable investigation, the court ought to ignore the 1029(c) averment. Delaware Valley Carpeting v. Leicbt. 73 D. & C.2d 51, 53 (C. P. Bucks 1975), Affd per curiam, 234 Pa. Super. 754, 342 A.2d 419...We agree with the lower court that it is 'incredible that (appellant) as a party to said docanaents (contract and proposal) and the party responsible for carrying out the building of the prototype should be so c.ompletely ignorant of what transpired.., as to be unable to answer the clear and sunple allegations of the Complaint.'...An answer which states, using the Rule 1029(c) formulation, that appellant and its corporate president were unable after reasonable investigation to determine whether appellee had been paid only $5,000 or the $10,000 due him by appellant under the contract is classically and inherently incredible. All appellant and its president had to do was scrutinize~the contract and the corporate records....(Emphasis added.) In the present case, defendant failed to plead any facts :stating why she was not sure as to the correctness of the terms and conditions she received as per Exhibit A, yet she explicitly admitted in paragraph 3 that she did receive a set. Therefore, it is classically and inherently incredible that she was unsure that Exhibit A was correct. As in Scales, all she had to do was scrutinize her set of terms and conditions and compare them to Exhibit A. As to paragraph 5, defendant admitted use of the credit card and receipt of the monthly statements by failing even to acknowledge this portion of the averment. To the balance of paragraph 5 of the complaint defendant averred, "he [sic] does not agree with the amount of charges as stated." Rule 1029(b) requires that defendant plead specifically in response to the amount plaintiff claimed was due. This was not done. "Although no fixed rule can be stated for determining whether a denial is specific, generally for a denial to be specific, it must deny what is averred and then must affirmatively aver what did occur in place of the facts as averred." 5 Standard Pennsylvania Practice 2d Section 26:40 and the cases cited therein. In Acme Cotton Products Co. v. Michael McDonough Lc., 61 Pa. D. & C.2d 608 (1972); affirmed,per curiarn, 225 Pa. Super. 701,306 A.2d 351 (1973), the Court directed a verdict finding the answer was ac~ally an admission under Pa.R.C. P. 1029(b): Nowhere in defendant's answer does he allege that the goods received did not conform to the terms of the agreement. Neither does he even attempt to articulate any specific defect in the goods received; his answer mounts to bald statements that the goods were in a defective condition and unsaleable. As a consequence of this admitted 'badly drafted Answer,' the allegations in the complaint are deemed admitted. See Pa. R. C. P. 1029(b). So we see in paragraph 5 of the answer, defendant's allegation that "he [sic] does not agree with the amount of charges as stated" is an admission under Pa R.C.P 1029(b) which placed an affirmative duty on defendant to plead more. If defendant did not agree with the amount of plaintiff's claim, where were the facts stating what the balance due is according to defendant's records? Defendant admitted receiving statements which were sent monthly which set forth the balance. To the extent, therefore, defendant disagreed she had information available to plead why. Pa R.C.P. 1019(a) requires that facts in support of defenses be stated in a concise and summary form. As in the Acme case cited above, defendant's pleading is merely a bald allegation that the balance was not correct. Clearly, defendant's failure to plead in accordance with Rule 1029(b) resulted in the complete admission of all of paragraph 5 of the complaint. Under the rules and the cases cited above, defendant's pleading should be deemed to have admitted all the averments ofplalntiWs complaint. As such, tl:te defendant's answer constituted admissions of the allegations of the complaint and the defendant cannot now be heard to contradict the complaint's averments. This result flows from the nature of an admission. As stated in Packel & Poulin, Penns lvania Evidence, 2d Ed., Section 127, p. 30 (hereafter Packel & Poulin): Evidentiary admissions are to be distinguished from judicial admissions. Judicial admissions are not evidence at all. Rather, they areforrnal concessions in thepleadings in the case or stipulations by aparty or its counsel that have the effect of withdrawing a fact from issue and dispensing wholly with the needfor proof of thefact. Thus the judicial admission, unless allowed by the court to be withdrawn is conclusive in the case, whereas the evidentiary admission is not conclusive but is always subject to contradiction or explanation. (Emphasis added) In Jewelcor Jewelers & Distributors v. Corr, 373 Pa. Super 536, 542 A.2d 72 (1988), the Superior Court addressed the effect of a judicial admission, as fbllows: A judicial admission is an express waiver made in court or preparatory to trial by a party or his attorney, conceding for the purposes of the trial, the truth of the admission. It has the effect ora confessory pleading, in that the fact is thereafter to be taken for granted, so that the opposing party need offer no evidence to prove it and the party by whom the statement was made is not allowed to disprove it. See 9 Wigmore, Evidence Section 2588 (Chadbourne Rev. 1981). It is axiomatic that a judicial admission cannot be contradicted by the party that made it. See Tops Apparel Mfg. Co. v. Rothman~ 430 Pa. 583,244 A. 2d 436 (1968). To the extent there may be any fact at issue it might bc that pertaining to plaintiff's entitlement to attorney's fees under the terms and conditions, that is, Exhibit A, to the complaint. While plaintiff contends the Exhibit was admitted by defenda~at's ineffective denial, if the Court finds the terms are at issue, it may under Pa R.C.P. 1034(b) enter judgment for the principal balance claimed to which there certainly is no fact at issue which would require a thai. IV. Conclusion Plaintiff submits judgment on the pleadings should be entered under Pa.R.C.P. 1034 (a) on its behalf and against defendant in the stun orS11,236.97 together with attorney's fees of $2,135.18 for a total judgment of $13,372.15 plus the costs of this action. BURTON ]SELL & ASSOCIATES, P.C. ~-NEVI, Esquire Attorney for Plaintiff In making this communication, we advise our firm is a debt collector. BURTON NEIL & ASSOCIATES, P.C. Burton Neil, Esquire, Id. no. 11348 1060 Andrew Drive, Suite 170 West Chester, PA 19380 610-696-2120 Attorney for Plaintiff CITIBANK (SOUTH DAKOTA) N.A. Plaintiff 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-2535 SUSANN C. KAUFFMAN Defendant CIVIL ACTION - LAW Certificate of Service Burton Nell, Esquire, being duly sworn according to law, deposes and says that he is attomey for plaintiff Citibank (South Dakota) N.A., that he served a true and correct copy of plaintiff's Motion for Judgment on the Pleadings, supporting Memorandum of Law, request to Submit on Briefs and proposed Order on defendant by first class U.S. Mail, postage prepaid on the date set forth below. Burton Neil, Esquire In making this communication, we advise our firm is a debt cc,llector. PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the w/thin matter for the next Argument Court. CITIBANK (SOUTH DAKOTA) N.A. Plaintiff SUSANN C. KAUFFMAN Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-2535 CIViL ACTION - LAW 1. Matter to be argued: Plaintiff's Motion for Judgment on the Pleadings 2. Identify counsel who will argue case: (a) Plaintiff's counsel: BURTON NEIL & ASSOCIATES, P.C. Burton Neil, Esquire ID# 11348 1060 Andrew Drive, Suite 170 West Chester, PA 19380 (b) Defendant's counsel: Susa.tm C. Kauffxnan,pro se 936 River Road Marysville, PA 17053-9634 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: September 22, 2004 In making this communication, we advise our firm is a debt collector. BURTON NELL & ASSOCIATES, P.C. Burton Neil, Esquire, Id. no. 11348 i060 Andrew Drive, Suite 170 West Chester, PA 19380 610-696-2120 Attorney for Plaintiff CITIBANK (SOUTH DAKOTA) N.A. Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SUSANN C. KAUFFMAN NO. 03-2535 Defendant: CIVIL ACTION - LAW Certificate of Service Burton Nell, Esquire, being duly sworn according to law, deposes and says that he is attorney for plaintiff Citibank (South Dakota) N.A., that he served a true and correct copy of plaintiff's Praecipe for Listing Case for Argument on defendant by first class U.S. Mail, postage prepaid on the date set forth below. Burton Neil, Esquire In making th/s communication, we advise our f'mu is a debt collector. CITIBANK (SOUTH DAKOTA) N.A., : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA SUSANN C. KAUFFMAN, DEFENDANT : 03-2535 CIVIL TERM IN RE: MOTION OF PLAINTIFF FOR JUDGMENT ON THE PLEADINGS BEFORE BAYLEY, J. AND HESS, J. ORDER OF COURT AND NOW, this -~.r-('~l._.. day of September, 2004, the motion of plaintiff for judgment on the pleadings, IS GRANTED.~ Judgment is entered in favor of plaintiff Citibank (South Dakota) N.A. and against Susann C. Kauffman in the amount of $7,403.55 ($6,221.47 plus attorney fees of $1,182.08). Edgar B,. Bayley, J. .. Burton Nell, Esquire For Plaintiff EDGAR B. BAYLEY JUDGE I COURTHOUSE SQUARE CARLISLE, PENNSYLVANIA ! 7013-3387 KAUF 936 FORWARD TIME EXP RTN TO SEND KAUFFMAN' SuSANN C 928 MILL RD MECHANICSB/J~G PA 17050-2124 K~.TUK~ TO sENDE~ IIh,lhhllll,,,lll,,,llllll.lh,h,lll,,~lh,llh,lll-Illl Susann Kauffman 936 River Road Mn~vill~ PA tTn~q 170533032 1903 05 09/29/04 BURTON NEIL & .ASSOCIATES, P.C. BY: Yale D. Weinstein, Esquire Identification No. 89678 1060 Andrew Drive, Suite 170 West Chester, PA 19380 610-696-2120 ATTORNEY FOR: Plaintiff CITIBANK (SOUTH DAKOTA) N.A. Plaintiff VS. SUSANN C. KAUFFMAN Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 03-2535 : CIVIL ACTION - LAW Praecipe for Entry of Judgment on Order of Court To the Prothonotary: Enter judgment on order of court, dated September 27, 2004 on behalf of the plaintiff, Citibank South Dakota N.A., and against the defendant, Susann C. Kanffman, and assess damages in the sum of $7,403.55 plus costs. Yale Attor S, P.C. ~ei~stein, Esquire for Plaintiff And now, th~s' ]5~"*- day of 0~-~-,"'--- 2004j/gment' ss' entered on behalf of the plaintiff, Citibank South Dakota N.A. and against the defendant, Susann C. Kauffman, and assess damages in the sum of $7,403.55 plus costs. Prothonotary of Cumberland County In making this commun/cation, we advise that this office is a debt collector. BURTON NEIL & ASSOCIATES, P.C. BY: Yale D. Weinstein, Esquire Identification No. 89678 1060 Andrew Drive, Suite 170 West Chester, PA 19380 610-696-2120 ATTORNEY FOR: Plaintiff CITIBANK SOUTH DAKOTA N.A. 701 E 60~ Street N Sioux Falls, SD Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA VS. SUSANN C. KAUFFMAN 936 River Road Marysville, PA 17053-9634 Defendant : NO. 03-2535 : CiVIL ACTION - LAW Certification of Address and Affidavit of Non-Military Understanding that fals~ statements herein are subject to penalty under 18 Pa. C.S. Section 4904 relating to unswom falsification to authorities, I verify that: 1. The above are the precise last-known addresses of the judgment creditor and debtor. 2. Pursuant to Section 201(b)(1)(A) of the Service members Civil Relief Act of 2003 (SCRA) the defendant is not in the military service of the United States based on information received from the defendant and/or the Department of Defense website. IATES, P.C. By: ] ]/ Yale D//~Oqeinstein, Esquire AttTy for Plaintiff In making this communication, we advise that this office is a debt collector.