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Home My WebLink About01-06895 ~ ., COMMONWEALTH OF PENNSYLVANIA ~ ----"----"-.- COURT OF COMMON PLEA'5 I NOTlC!: 0" AII"P!l:A!. FROM JUDICIAL DISTRICT DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. () 1- ("grS- it ~JI NOTICE OF APPEAL DK 5~ ~ool {! II/JJ.I1 z,R ifiIv D Notice is given that the appellant has filed in the obove Court of Common Pleas on oppeol from the judgment rendered by the District Justice on the date and in the case mentioned below. II WIM NO. 'tJ CVJ.$l tJ6t'J/T :175, IJ J , LT 19 This block will be signed ONLY when this notation is required unde, Po. R.C.PJP. No. 100811. This Notice of Appeal, when rec~ived by the District Justice, will operate os a SUPERSEDEAS to the judgment for possession in this case. ? Signature of ProthonotaIy or Deputy If appellant was CLAIMANT (see Pa. R.cP.JP. No. 1001 (6) in action before District Justice, he MUST FILE A COMPLAINT within twenty (20) days after filing his NOTICE of APPEAL. PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE IThis section of form to be used ONLY when appellant was DEFENDANT (see Pa. R.C.P.J.P. No. 1001(7) in action before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee). PRAECIPE: To Prothonotary Enh>rruleupon 'DIH//J) /I)t>/AJ /~C/2- Name of appeIJee(s) (Common Pleas No. 0 I - ~ 'jJ><fs c.: v; I ) within twenty (20) days after service of rule or suffer entry of judgment of non pro~ .-7- ~ Signature of appeHant Of his attorney Of agent ,appellee(s), to file a complaint in this oppeal RULE: Io Dfr[J J D WI' 4} J / c... l.I!!.- Name 01 appe//oe(s) , appellee(s). ('I) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service of this rule upon you by personal service or by certified or registered moil. (2) ~ you do not file a complaint within this time, a JUDGMENT OF NON PROS WILL BE ENTERED AGAINST YOU. (:1) The date of service of this rule if service was by moil is the date of moiling. ~ Date:~'-s.- :2a:J1 ,X-. ~ ,; . Pro~ Of Deputy N:JPC 312-84 COURT FILE TO BE FILED WITH PROTHONOTARY ""~l!;;,~. _ ,,, ,_~ . ".:.!. ~,_. -I ~".' -_.~ ~:~t_~- .-, " _,~- r'l-~"~ M~ ~~~T " .... PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FilE COMPLAINT (This prool of service MUST BE FILED WITHIN TEN (10) DA YS AFTER fifing the notice of appeal. Check applicabie boxes) COMMONWEALTH OF PENNSYLVANIA COUNTY OF ; S$ AFFIDAVIT: I hereby swear or affirm that I served o a copy of the Notice 01 Appeal, Common Pleas No. , upon the Dlstriot Justice designated therein on (date of service) ,__ 0 by personal service 0 by (certified) (registered) mail, sender's receipt attached hereto, and upon the appellee, (name) , on , 19_ 0 by personal service 0 by (certified) (registered) mail, sender's receipt attached hereto, o and further that I served Ihe Rule 10 File a Complaint accompanying the above Notice of Appeal upon the appeilee(s) to whom the Rule was addressed on , 19~ 0 by personal service 0 by (certified) (registered) mali, sender's receipt flttached hereto. SWORN (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS DAY OF , 19~ Signafure of affiant Signature of official before whom affidavit waS made Tille of official (') c: Z '''003 mrr. Z:.:c ZC;:;. ~~~ ""C PC) ZCl >. c: z :<! o ., My commission expires on ,19...- <::> ::::l rrI n , t,.n ":~g 1'..) <,~;.~:) -'~--= --'.-~ :~',~~~, ::")' . ::-; ~ -~,. ~ -i='. ;.~~_"jJL",_ ~ .'1 _~_~ .. I JIli J~:rlJlJ~J~)f.'f.,,,,-. ',J~' mW_q!~IiWM~~~~p;-"1:~iift't'ffi~,!!i'!1jj!:Yi ;'1'-':, ;~'''," ,"- ,,", "-"""""-;'of-'V.('i-j-" 09-3-03 , , NOTICE OF JUDGMEtNTITRANSCRIPT CIVIL CASE PLAINTIFF: NAME and ADDRESS lwEINIGER, DAVID I 31 CASALE DRIVE SOUTH WARREN, NJ 07059 - . -COMMONWEALTH OF PENNSYLVANIA COUNTY OF: CUMBERLAND Mag, Disl. No.: DJ Name: Hon. SUSAN K. DAY Add"" 229 MILL STREET, BOX 167 MT. HOLLY SPRINGS, PA L -.J VS. Tel.""""" (717) 486-7672 17065 DEFENDANT: NAME and ADDRESS 'KOCH, CHRISTOPHER 305 SANDBANK ROAD MT. HOLLY SPRINGS, PA 17065 L Docket No.: CV- 0000275 - 01 Date Filed: 9/12/01 I l~TTORNEY DEF PRIVATE : -.J ~...;:.....-- ~ !KARL ROMINGER 50 E. HIGH ST. CARLISLE, PA 17013 THIS IS TO NOTIFY YOU THAT: Judgment: FOR PT,ATNTIFF [i] Judgment was entered for: (Name) WRTNTr.1>.>> nll.VTn [iJ Judgment was entered against: (Name) KO~H, ~HRnlTOPH1>.>> in the amount of $ 3, 'HI? 23 on: (Date of Judgment) '11 /Oq /01 . . o Defendants are jointly and severally Iiabie. o Damages will be assessed on: (Date & Time) O Amount of Judgment Subject to Attachment'Act 5 of 1996 $ Amount of Judgment $ 3,300.00 Judgment Costs $ 82.23 Interest on Judgment $ .00 Attorney Fees $ .00 Total $ 3.382.23 Post Judgment Credits $ Post Judgment Costs $ ------------ ------------ Certified Judgment Total $ o This case dismissed without prejudice. o o Levy is stayed for days or 0 generally stayed. Objection to levy has been filed and hearing will be held: Date: Place: Time: ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS E OF JUDGMENT/ ANSC T FORM WITH YOUR NOTICE OF APPEAL. / f- 9--0 J Date , District Justice I certify that this is a true Date proceedings containing the judgment. , District Justice My commission expires first Monday of January, AOPC 315-99 2004 SEAL '''\$t~~~ ,"'!'II_J~J._ .. "'I .-' - ~"~~,,~ ~< . ~ ~ ~ ~ It::::: '--. --- ~ ~ -C: ~ --4 -N "-~~~._" -. ?t: If, 01 ~ ~~"~ ,,~ >~-, ~",- . ~ ~ 4~"I ~ ~ $ ~I ~\ Q, '" ~ . ..... ... (') C=l c: _-;;c, -ofi;, , (~ QJf7; i'l ~f'~ C) , ~t~~ en ~8 '.J ::g i'>J :~ -, -< ~ ~v<<. ~~iJll'r[jjn';J,('1 - . .,.., ~.-~' -1W"fIil$'fJ df ., ,~ 1,-'Tl1 J,~:~~t_~_",_~~i{.~_ '" - d _' ','''" _~~M~",lj:,,!,"'"W_;!j'_'n!f,"'1j'~1"''"''~Y0'''1!~''''' ?"':,::;;,,"";,,",iJ;1l"'ffiJ(;-1~;@'\'"-*'N,'i<h7'" '1f-'r'0~;";"1,~j~)<~~:W,1l'i.~fi;%I~r::- '-_+~_"'!!'l'_ COMMONWltALTH OF PEtfNSYLVANIA COURT OF COMMON PLEAS NOTICE OFAFiPEAL FROM DISTRICT JUSTICE JUDGMElIIT COM~N PLE~S No. c') 1-. Ii. ~f5'" it ; A 1II0TICE.OF APPEAL r:x,(, ~;: ~ oed Notice is given that the a~llant has filed in the above Court. of Common Pleas ariappeol from the judgment rendered by the District Justice on the dare ond in the case merotioned bel<>w; JUDICIAL D,ST_,CT l~;' 61 :E,I? ./../J-IIl D / 'Ill I/L 'E CV-J.9. tJl5()(J :275- tJ J . LT 19 This bloc:k will be signed ONLY when this notation. is required under'Pa. R.CPJP. No. 10088. .,;; . This Notice of Appeol, when . received by. the District Justice, will operote as a 5UPERSIEOEAS ta the judgment for possession in this case. E,t2.. '" C SIGNATURE OF APPELlANT OR .ktJ (I If .":7-'---.-' Signature of Prothonotary or Deputy If awel/an/Was CLAIMANT (see Pa. R.C.P.J.P. No. 1001 (6) in action before- .District Jr:jstice, 'he'MUST . 1, I, FILE A COMPLAINT w.i1/1in twenty (20) days after fiiing his NOTICE of APflEAL. ...... '1*RA-ECIPE TO EN1ER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of loon to be used ONLY when appellant was DEFENDANT (see Pa. R.C.P.J.P. No. 1001(7) in actioA before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee). PRAECIIPE: To Prothonotary EnlE. rule uponJJjJ II J D U) eh.J J I};. Cfl.- J ' . I Name 01 appe/lee(sJ (Common Pleas No. 0 - (p 'J>9;'5'" C. v I ) within twenty (20) days after service of rule or suffer entry o.f judgment of non pro~ / ~-. , appellee(s), to file a complaint in this appeal RULE: 10 --- J)/l-V 11) tv g I JJ / C;; E/!-. Name 01 appeIlee(sJ ~ . ",. . Signature of appelhint 01' his ~ ,@(' agent , appellee(s). l . (1) X",!;~re~\~ea''\i<\(,~ rule isheiet'Y entered upon you tdfile a complaint in this appeal ,!"ithin twenty (20) days after the date of . servoce O!c\fl1S ryleuponYOllJ5y,;~al ser~orby cerlifi~"or regisreredmaiL ... ,. .. ." . ' ~-~~~,<,. ' ~"d ,(;.~... ' ; (2) If you do not file a caOiplalht within. this time, a JUDGMENT OF NON PROS WILL BE ENTEREO AGAINST YOU. .' . - ::'~:',"'.'. - .. \ ' , '",-,' " ., . ~'~..~ . /.i~.~I);.':I~fserv:OfthiSJ~ejfServicewasbYmailisthedareOfmailing. /J "~. -. . / ,cy."1-~_. Date:~c..,)t oI.{JJ . ,~__; . ~(fi //fI /j,6.4.Atrl_if---({ '. '. ..... "S; Prolhono/ary or DepuIy AOPC312-84 . c:puu'Fb' PROOF Of: SERVICE OF NOTICE OF APPEAL AND RULE TO FilE COMPLAINT (This proal of service MUST BE FILED WITHIN TEN (0) DA YS AFTER filing the notice of appeal, Checi< applicable boxes) COMMONWEALTH Of PENNSYLVANIA //1 / COUNTY Of C /J ~ ,t) F ,R .J-~) D ;.. AFFIDAVIT: I hereby sweilr or affirm that I served P a copy of the Notice of Ap?"al);;OmmOn Pleas No. (7/- ty ~ _ , upon th,e District Justice designated therein o,n (dateofservice), /~/'''f/~/ , eX: personalserv:ce [] by(certlfled)(reglStered)mall,senders receipt atta,2 he~to, and upon the appellee, (name) 'JE- , on /,;1 ,>>.Ji.L 0 by personal serviceKLby~ertified) registered) mail, sender's receipt attached hereto. %and further that I served the Rule to File a CO}l1plail)t accompanYlngffie above Notice of Appeai upon the appe ee(s) to whom the Ruie was addressed on ! R/,.6- r Il11 ,~~ 0 by personal servic~y ertified} (registered) mail, senders receipt attached hereto. ~-.. SWORN (AFFIRMED) AND SUBSCRIBED BEFORE ME e:--__~ _ ~ THiS 5'~ DAY OF ~ ,~.2tlO) C- ~~------ ---~ ,1 Signature of affiant . lJ....--- -'----.--,-- m affids\rit was mede Title ofoffi()iai My commission expires on ,19__ I. Notarial Seal . Lisa M. Greason, Notary Public Carlisle Boro, Cumberland County My Commission ~~~~.:'ept. 9, 2002 .. '., C! 2 ~ -Otf" g2,~' zt;:'. ~<2:~ '.2c> ),'0 bCi :vC :2: -{ Q, - .-.~ ~l~, ~ ~~~ f.,) :~ ,,- '1;:>' en '?t C! Cl \'"<l '" I C0 . . I. '''l.''L,,__'_~~'''''''''"''____~_''"'"'"~''!,",!;'ffi'''''''''''''''l'''''"V''"""p,""!'.'. ..,;<,.-- ';':;'c."""'-<""/" ><--",'i-" ,.,)",- l"".-,-",,,,,",,'F- '" "",- "~'",'--_. , -~ ~ r'I ru =r r'I ..II ..II r'I IT' Postage $ Certified Fee c::J r'I c::J c::J Return Receipt Fee (Endorsement Required) Restricted Delivery Fee (Endorsement Required) c::J l'- ..II r'I c::J c::J c::J l'- Total Postage & Fees Postmark Here $3.9 ,. ~^ ,,--- , 'r DAVID WEINIGER, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW CHRISTOPHER KOCH, Defendant No. 01-6895 Civil Term NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or 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 Telephone No. 717-249-3166 "!<,T~:;~,..rJY:~~ ,~'_<_" --f' ~. - "<" m, DAVID WEINIGER, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION - LAW CHRISTOPHER KOCH, Defendant No. 01-6895 Civil Term COMPLAINT AND NOW, comes Plaintiff, David Weiniger, pro se, who files the following Complaint against Defendant, Christopher Koch, and states as follows: 1. The Plaintiff, David Weiniger, is an adult individual who resides at 31 Casale Drive South, Warren, New Jersey 07059. 2. The Defendant, Christopher Koch, is an adult individual who resides at 305 Sandbank Road, Mount Holly Springs, Pennsylvania 17065. 3. On or about September 12, 2001,Plaintifffiled a civil complaint against Defendant with District Justice Susan K. Day, Magisterial District No. 09-3-03, and having a docket number of CV -0000275-01. 4. A hearing on the matter was held on or about November 9, 2001. 5. Although Defendant's counsel was present at the hearing, Defendant failed to appear, and a default judgment in the amount of$3,382.23 was entered against Defendant. 6. On or about December 5, 2001, Defendant filed a Notice of Appeal of the District Justice judgment. 7. On December 11, 2001, a Notice of Appeal and Rule Upon Appellee (plaintiff herein) was served to Plaintiffto file a Complaint with the Court. This Complaint is timely filed in response to the Rule. COUNT I BREACH OF CONTRACT 8. The averments of paragraphs 1-7 are incorporated by reference as though fully set forth herein. "N~~" ^ - r ^ '~I"-_'_' ."._,__ -"n: 9. In February 2001, Defendant solicited offers for the purchase and sale of three collector magazines (the "Merchandise") by posting a solicitation on the E*bay@ auction website. 10. Defendant's solicitation indicated that he would be responsible and pay for all shipping costs related to the sale of the Merchandise. II. On February 7, 2001, Plaintiff offered to purchase the Merchandise at the price of $3,300.00. 12. On February 7, 2001, Defendant accepted Plaintiffs offer. 13. On February 8, 2001, Plaintiff paid Defendant $3,300.00 for the Merchandise and an additional $20.00 for shipping the Merchandise by registered and insured mail. Plaintiff paid by check number 5020 , a copy of which is attached hereto as Exhibit A. 14. Defendant has failed and/or refused to make delivery of the Merchandise. 15. Plaintiff has never received the Merchandise. 16. Defendant cashed Plaintiffs check for $3,320.00. A copy ofthe cashed check is attached hereto as Exhibit B. 17. Defendant breached the contract. 18. Defendant is without an excuse or justification. 19. Defendant's actions are without privilege. 20. As a direct and proximate result of Defendant's breach, Plaintiff has been damaged. WHEREFORE, Plaintiff, David Weiniger, demands judgment against Defendant, Christopher Koch, in the amount of $3,382.23, plus all reasonable costs and expenses incurred in bringing this action against Defendant, and any other relief the Court may deem appropriate. COUNT II BREACH OF WARRANTY 21. The averments of paragraphs 1-20 are incorporated by reference as though fully set forth herein. ':P~:W,lf_,,,-_,_.~,, "ft,., "'_'~_~_'___~ _~_"<_,_~ _ ' p ,- - t' ~ . ~-- . I 22. On February 8, 2001, Plaintiff demanded a modification of the terms regarding shipping in that Defendant should ship the Merchandise via registered and insured mail. 23. Plaintiff stated that he would pay for the additional shipping costs. 24. On February 8, 2001, Plaintiff paid Defendant $3,300.00 for the Merchandise and $20.00 for the shipping. 25. On February 13,2001, Defendant accepted Plaintiffs modification by cashing Plaintiffs check in the amount of$3,320.00. 26. Defendant's acceptance and cashing of Plaintiffs check constitutes: a. express acceptance of the modification of the terms of the contract regarding shipping, such that shipping would be via registered insured mail; b. an express warranty that shipping would occUr via registered and insured mail; and c. an implied warranty that shipping would occur via registered and insured mail. 27. Defendant has failed and/or refused to deliver the Merchandise via registered and insured mail. 28. Plaintiff has never received the Merchandise. 29. Defendant breached the express and/or implied warranties. 30. Defendant is without an excuse or justification. 31. Defendant's actions are without privilege. 32. As a direct and proximate result of Defendant's breach, Plaintiff has been damaged. WHEREFORE, Plaintiff, David Weiniger, demands judgment against Defendant, Christopher Koch, in the amount of$3382.23, plus all reasonable costs and expenses incurred in bringing this action against Defendant, and any other relief the Court may deem appropriate. "",Wi,~__ - }.. ""- - --JI , _~~"'__~ ,- I~ "' ." , "'fj\j!'~5~"-_ J__~ _. . \ COUNT III DETRIMENTAL RELIANCE/PROMISSORY ESTOPPEL 33. The averments of paragraphs 1-26 are incorporated by reference as though fully set forth herein. 34. In the alternative, Defendant is liable to Plaintiff under the theory of Detrimental Reliance or Promissory Estoppel. 35. Defendant represented that he would be responsible for and would pay for shipping the Merchandise. 36. Plaintiff relied on Defendant's representations in tendering payment of$3,300.00 to Defendant. 37. 38. Plaintiff's reliance was reasonable and justified. Defendant's representations were false, in that Defendant did not ship the Merchandise. 39. As a direct and proximate result of Plaintiffs reasonable reliance on Defendant's false representations, Plaintiff has been damaged. 40. By accepting Plaintiff's additional payment of $20.00, Defendant represented to Plaintiff that Defendant accepted Plaintiffs demand and would ship the Merchandise via registered and insured mail. 41. Plaintiff relied on Defendant's representations. 42. Plaintiff's reliance was reasonable and justified. 43. Defendant's representations were false in that Defendant did not ship the Merchandise via registered and certified mail. 44. Defendant breached his duty to Plaintiff to ship the Merchandise via registered and certified mail. 45. As a direct and proximate result of Defendant's breach, Plaintiff has been damaged. < - ^. ,~-~C;, "' ,-co, ,1,'1:-' ,.. - '" I.'.' !\:~ WHEREFORE, Plaintiff, David Weiniger, demands judgment against Defendant, Christopher Koch, in the amount of$3382.23, plus all reasonable costs and expenses incurred in btinging this action against Defendant, and any other relief the Court may deem appropriate. Respectfully submitted, David I verify that the statements made in the foregoing 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 penalties of 18 Pa.C.S.A. S 4904 relating to unsworn falsification to authorities. Dated: December 21, 2001 /' ''''~"''ffl!i . _"~",-"",, " .".0" . '.""",, t"1 ;.. .'i,'il; "-'"~Cl;,...,,,,,,,~ ,'"1_. . <--'., ,I - d___ ,,'^ ..' ~~ , :!+-.. if o Oi u~.. .~ o In '.. -' % \ ~-. -". ~ ---~ .- I - ~ ,] I' 00 , ~ :,1 '] :,1 w ,i ~ 0 ~ \ a- :'1 .... il , '~~I ,~i -' o (.) Ul W ~ a:, , . - '. oJ' , (.) Woo> Cf)cn:g a: .... IX: 0 WO.., ""WZ '. ""'-I- -<Z Z",W _<IX: WOIX: ==;;;~ ~..' .ll.'~ I ~, ','.-';J.ta:;;.:-:-(.,:' r r'-, .----. ~-~._, r"n-, , ! ~! i! ~i Hi ,-~~1!3 1() ,. (j) " IX: l'-..( :5'" "^ ...J i' i" \ 0 \0 .lV\ 0... ( l. , . 0 0 Ou n.J "' rM 0 0 0 0 - {f7 ... 0(1) ~o " ..... '\) ~:): ~~~ 0'1 E:l:I ... ..r i' c- o o ..r ..r t.ll o 19 n - ...J .::> o ~ "I - i .1 "- ~ - - L~ ;~, ..1 )i:;l 4 ~ e'" ~)O ' ~ i~ ~~4-! ~ "z'~ 0 "~4o~~~ '0 ~1 . CZl ~ ' 0::1 (l"O\.IIsON\fII:IWHO. ] ~] > .. ""~ - ~~ ..,.,..~~ :.~;...:)<' ~ . ~." " ~ -,,', ; " '.::i', ... , -.;. '.J~..;~< ,-: .,,:'. ,- , - -~ 'j"" .. . ). '^ ~.;I , ,';~i , -".' . " .~. - ___-a. v' .,~~~~- e. 't...,- '{ .'" f! ..':'"".- . ,<5) t " , " I ""j' i~~ ~ '~'~~'f 1.'1_ 'l END9R~E HERE: \ .; i.. ,,;. ~ ,. :: .. J : ,. ~TO'THeACCaUNT a:,..e ~YEE NAMED H~REIN MY HOLLY SPRINGS OF-FlCe ~ endTrad9lS Trust COllll*l'l DD N~~ ,~;9,~;\ ,,'fn~~7E " _ "S': -~::.-~,:;1? 2SL:~, -',I .- ';:: ~(','" 4417 87278 '3 U;-i:: ,1..1::1 ,....,. _~,IJfl::1 CO 1:'1'11 ~t;S...::""1 ::::::t ......1 O!' ;: 1"1"1 <:> ~iiil"'''':' ,..... ::::: '"::i> NasN1"J"1 O~<l2> .:::::, ,...' "6!30i " ' \ L_____--C-_ ~t:&t') ..:..' . ......, ~ li) - If.'I" , ,Mrl' . 0. """r.-,I") ;oCll~t":1 ;q,'Il' >< ' ~<~::!l< '1Il ~, '!: ,Ii;! N * ''il N >I<'I:iilI 0>1<0", J,f':I .;,t::......1 >I<(I")(\J '1:00 1: c:o _=>i! ~$ '~::r;~ II~' ... ' ;g 1:'I~r ",;'1':1':.. 1""'1' 1:1":) I::;::" 1./":1 <~::f I:,::~,~ ..;....." 'I::j... 'FEOE~ E a RVE BOARD OF GOVERNORS REG. CC L!J. i-l "",l!owlng secunty I Security ~ .._. 'l(Jlltsted) exceed IRdeUa:t~ry",(and others ~M1 s andards' ~~"",,"*,I'- ~:~::"::' 'pp"","" If ",;,.., leroprlnt tllQG Line + OQ<::umenr~ ~~:~l~c&t'lln of "0"911'0&\ II' :::ml"I~1l1'~ . mii:7~:~,,~~:t~::;~~bi,':,':t,'::I':' I lock I~O 0 . Ab"mle~l altara~~~POI'" appear with . (!Ipad!oc~ de I senee <.If pad I ..,..-___ _-,-:,..,--,s9n-I_'8,c~rlltlc.II"'n'" ~ !lC,k icon _ . J - . 00 "^OO~'O_ .~ ,,,,~,~...,,,,.;,,,,,..~~.,.,,;,."-.... J " ~', " \..-, ,;''1.< ....~;: . :;>X "'-~~ ,~ .. .. f 5:') .,:"'- .~+ ..' >"-'~~~-:. >. ,C , f~ . ~ ) f .< ,; r/ _ ):_ ;.~~tJaJ.f;'-~_ ,f~' T ~ "=,. . .-',,-, ~ .' ,.,~ C' C:J ;""1 (-~) N Cf:J . C' nr"! ~p :,;: '!? 'i,:3 ::l~~ ~~r ~~ '< n c ::::~' -off; 1111'1 ~~; ~C) ~O .<:.-n ~C Z :2. 'n (." ~~ t .,-, J~l\!l:~~"',_ ,--;-",-,t--,~; ,_.,'l'~! '0 ~_ ~~1l~1I>\j$iiM!;",i'i;;;'N5':'ff''''''j!r''''"W''.ii'(;''''~:''''':<l'1~'I'---j,e'F$;<~"1:1W!:Ji~~~~~F'it\~~Mr:l~~~~~1 DAVID WEINIGER, Plaintiff :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYL VANIA v. :CIVIL ACTION - LAW CHRISTOPHER KOCH :NO. 01- 6895 CIVIL TERM Defendants NOTICE TO PLEAD TO: David Weiniger You are hereby notified to file a written response to the enclosed Prelimilllary Objection within twenty (20) days from service hereof or a judgment may be entered against you. ~.:-,~ L(-J-OL 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Defendant {~ "" ,,'~ 'i,\:","i,,,,~ ~~ ,..",:=">,"'-'1!! -'1. ,',-~,'rf;~>:",~",- ,_'", "-'_ _ ,."',.>'c~' ""'3~-<'~__~".-'; ..~_""'. ''''.'".'' ,~. _ _ ," .~_> < .,~ _ _ o~, -._ DAVID WElNlGER, Plaintiff :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA v. :CIVIL ACTION - LAW CHRISTOPHER KOCH, Defendant :NO. 01-6895 CIVIL TERM PRELIMINARY OBJECTION AND NOW, comes Christopher Koch by and through his privately retained counsel, Karl E. RoIninger, Esquire, and pursuant to PaR.C.P.1028 (4) files the following preliminary objection: 1. Count II of Plaintiff's complaint is entitled Breach of Warranty. 2. In Count I Defendant pleads that there was a contract between the parties for a shipment of some magazines. 3. That count states that there was a contract to pay thirty three hundred ($3,300.00) dollars for the magazines and an additional twenty ($20.00) dollars for shipping. 4. In Count II, the Plaintiff alleges that he demanded a modification to the contract. 5. Plaintiff asserts that the cashing of the check he sent with the additional twenty dollars, .iJlas an l\Cceptance to modi1Jing the original contract, said modifications being as to certain modes or methods of shipping. 6. Plaintiff states that said methods were not employed or used. 7. Plaintiff goes on to allege this created a Breach of Warranty. ,,/ 8. However, Plaintiffhas already more properly plead in Count I a Breach of Contract. Count II is essentially a restatement of that Breach of Contract an not true Warranty action. 9. In paragraph 26, Plaintiff says the, contract was modified, and that the express and ""~~>f!I l, ^ , " "~:;::;,.: '~'R'L.",;o''!e,~''1-',-~,-s- "~',h_ _ ,""",?='(~-", --IP',-~^,,,-,, ' " ' " .N ,_" "J", "'i'_- _""_"_''''_~_j,:", ".,0 ~ _:'I'< _~,' _ _ ,~= . . implied warranties thus created were breached. 10. Defendant demurs to Count II, Breach of Warranty, insomuchas the claim for warranty is really a restatement ofthe earlier contract action. II. Defendant demurs to the claim in Warranty, as no express warranty is plead, such as would be cognizable under law. 12. Defendant demurs to any claim for implied warranty insomuch as Defendant has not plead implied warranty as to the product's fitness, quality, nor fitness for a particular purpose. WHEREFORE, Defendant demurs to Count II of the Plaintiff's complaint, and asks the same be struck as it lacks legal sufficiency, or in the alternative, that the Court strike those portions of the relief sought which are not plead sufficiently. Respectfully Submitted, ROMINGER & BAYLEY ~--3 -- 0 2- ~ Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Defendatnt '\''*''_'l!-~~",_.',.,._", -'~'f,'i-':_'_-:_"_,"e~,~~,,,,, __'~ ,! ~H_' ,_, ~', =" ". ,_ .- CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, attorney for Christopher Koch, do hereby certify that I this day served a copy of the Complaint upon the following by depositing same in the United States mail, postage prepaid, at Carlisle, Pennsylvania, addressed as follows: ----- ~ / --- Karl E. Rominger, Esquire Attorney for Defendant Dated: r-- 5 ..- c:-L ..~ ~'" :::i.." "'-~'""""'='.',' '-, T- _ ."- ~- ~_'~~~~'~"__~'~~~C. I'__"_~'"","_ ".-' "~~,-_" _~. IJlJJlj~1 .. ,H, ~ ,,,_. ~~~.' ". 0 0 0 C N ;;;;: -" ::> -.,j wOJ -u Tn ::u .~J':i.:!J ",-:r ~~ I -'ChI W :::Q-O C\J. CJ -='1 ,:; < " ~~:a ~o ~x :>() ~ ~\.) C OITl Z (,..) ~ =<! (,.) -< 't":'" , ~p~!i'm';W"~'H(~,>:')i~8ii'~"'f-^""~)J^WW~~~-:w"~~f{i,*~~ DAVID WEINIGER, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW CHRISTOPHER KOCH, Defendant No. 01-6895 Civil Term PLAINTIFF'S ANSWER TO DEFENDANT'S PRELIMINARY OBJECTION AND NOW, Plaintiff, David Weiniger, files this Answer to the Defendant's Preliminary Objection and states as follows: 1. Admitted, 2. Denied. Plaintiff s Complaint speaks for itself. 3, Denied. Plaintiffs Complaint speaks for itself. 4. Denied. Plaintiffs Complaint speaks for itself. 5. Denied. Plaintiffs Complaint speaks for itself. 6. Denied. Plaintiffs Complaint speaks for itself. 7. Denied. Plaintiffs Complaint speaks for itself. 8. Denied. Plaintiff denies that COWlt II, Breach of Warranty, is a restatement of COWlt I, Breach of Contract. To the contrary, the Breach of Contract action is based on the contract created for the sale and purchase of the merchandise. Defendant breached the contract by failing and/or refusing (1) to deliver the merchandise in the agreed upon manner and method of delivery and (2) to deliver the merchandise to Plaintiff. The Breach of Warranty action is based on the Defendant's breach of an express warranty and an implied warranty to deliver the merchandise via registered and insured mail. 9. Denied. Plaintiffs Complaint speaks for itself. 10. Denied. Plaintiff denies that COWlt II, Breach of Warranty, is a restatement of COWlt I, Breach of Contract. By way of further response, Plaintiff incorporates by reference thereto his answer to paragraph 8 hereinabove. "",\~~~j!Jll;l~,_'1 ~~r~,. '_~_ '. .-r. .,- " -..,. - . ~~ - ,-, "' ." , J~~"' . '_ " --~- ,,-~--' . 0 ~ ~~,,~" ._-. ~~ ,- ~-~ -, '" ff\-\ jJ: ~ f\\J (2)" &f\!Z~(ULO ~( oJ#'- v~J,"L \;J~ '- f' 'j v- ~j~1{~Jf"',,~'"l"t!JI!~j> ,~'" '" ,<',~, ",di'~""""\~""""" ,,"' ~",,~Wf',"-";~M'~~! , ~"~L%lj(~;;;-;,'...r,;~~ -,~ l" ,', [~:!ffi!!ll' ,,~.~~~,_c 11. Denied. Plaintiff denies that no express warranty was plead. To the contrary, Plaintiff's Complaint specifically alleges the creation of an express warranty with regard to the manner and method of shipment of the merchandise. 12. Denied. Plaintiff denies that no implied warranty was plead. To the contrary, Plaintiff s Complaint specifically alleges the creation of an implied warranty with regard to the manner and method of shipment of the merchandise. WHEREFORE, Plaintiff requests that this Honorable Court deny Defendant's Preliminary Objection and proceed with a determination of the case on its merits. Respectfully submitted, "j:k,-; --."","", '."'_!I!'!II Iq r . ",- , ...... .. CERTIFICATE OF SERVICE The undersigned hereby certifies that he has this day served a true and correct copy of the foregoing document upon the following by depositing same in United States first class mail, postage prepaid, and addressed as follows: Karl E. 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