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Home My WebLink About99-040901 1 }? 5 J ?' SEARS, ROEBUCK AND CO., PLAINTIFF VS. THEODORE ESHELMAN, DEFENDANT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. ?1U90 Ccv? Ida,. 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 ajudgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claims 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. C ourt Admini trato r 4t h FI Cumb erland Cou nty C ourthouse Ca rlisl e. Penn sylva a ni 1 701 3 Te leph one' 71 7-240 -62 00 SEARS, ROEBUCK AND CO., IN THE COURT OF COMMON PLEAS PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW VS. NO. 99- yeew dLv7-- THEODOREESHELMAN, DEFENDANT COMPLAINT IN REPLEVIN I . Plaintiff is Sears, Roebuck and Co. ("Sears"), a corporation organized under the laws of New York with a place of business located at 45 Congress Street, Salem, Massachusetts, 01970. 2. Defendant is Theodore Eshelman, an adult individual residing at 313 Nealy Road, Newville, Cumberland County, Pennsylvania, 17241 ("Defendant"). 3. Defendant opened account no. 05-54633-24428-6 (the "Account") and charged various purchases of merchandise to the account. 4. Sales invoices executed by the Defendant at the times when purchases charged to this Account occurred, granted to "Sears" a security interest in the merchandise purchased until fully paid. Copies of the sales invoices signed by the Defendant are attached hereto, marked as Exhibit "A" and are incorporated herein by reference. 5. Sears' security interest in the merchandise purchased pursuant to the Account is perfected without filing a UCC-I Financing Statement pursuant to UCC 9-302(a)(4). Sears is a secured creditor of the Defendant and holds a perfected purchase money security interest in the consumer goods identified in Exhibit "B" which is attached hereto and incorporated herein by reference. 6. All payments made by the Defendant on the Account are applied first to any unpaid insurance or finance charges and then to pay for the earliest charges on the Account. 7. The total balance owed by the Defendant as of June 25, 1998 was One Thousand Five Hundred Fifty-one Dollars and Eighty-four Cents ($1,551.84). 8. On June 25, 1998 the Defendant filed a Petition under Chapter 7 of the Bankruptcy Code with the U.S. Bankruptcy Court, Middle District of Pennsylvania to no. 98-03158RJW. 9. On October 14, 1998 the Defendant received a discharge extinguishing his legal liability to pay certain debts including the debt owed to Sears. 10. Sears avers, however, that the discharge of the underlying indebtedness has no legal effect on the validity of its security interest in the merchandise identified in Exhibit "B". See Estate of Lellock vs Prudential Insurance Co of America, 811 F.2d 186 (3rd Cir. 1987). 11. Pursuant to Sears' purchase money security interest in the merchandise identified in Exhibit "B", Sears is entitled to possession of such merchandise. 12. Upon information and belief, Defendant is in possession of the merchandise identified in Exhibit "B". 13. The fair market value of the merchandise identified in Exhibit "B" totals Four Hundred Forty-five Dollars and Forty-nine Cents ($445.49). 14. Although demanded, Defendant refused and continues to refuse to turn over possession of the merchandise to Sears. WHEREFORE, Sears respectfully requests this Court for a judgment for possession with respect to the merchandise identified in Exhibit "B". Dated: Respectfully submitted, BASKIN, LEISAWITZ, HELLER & ABRAMOWITCH By:_ 2 ?) ??L / -- 'Ghartes J. Phillips, Esquire 2201 Ridgewood Road Suite 400 Wyomissing, PA 19610 (610) 372-8427 Attorney for Sears, Roebuck and Co. VERIFICATION I, Debra DeGrenier, state and aver that I am the Manager of Special Accounts of Sears, Roebuck and Co., state and aver that I am authorized by the Company to sign this Verification and that the facts set forth in the Complaint in Replevin are based on information furnished to counsel, which information has been gathered by counsel in the course of this lawsuit. The language of the Complaint in Replevin is that of counsel and not of the undersigned. The undersigned verify that she has read the attached Complaint in Replevin and that it is true and correct to the best of his information and belief. To the extent that the language of the Complaint in Replevin is that of counsel, the undersigned has relied upon counsel in making this verification. This verification is made subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsification to authorities. Dated: Lp 1a11 VI q SEARS, ROEBUCK AND CO. By: Tyr et ?O U??t Debra DeGrenier is n: EXHIBIT "A" TIME: 05:23PM SEARS CHAMBERSBURG, PA 22244 RETAIN FOR COMPARISON WITH MONTHLY STATEMENT OR FOR RETURN OR EXCHANGE DELIVER TO: STORE 02224 CUSTOMER: THEODORE L. ESHELMAN PICK UP DATE: DELIV INSTR 12/15/97 CALL WHEN IN TRAN# PG/STORE REG# ASSOC# 4459 10 02224 020 1578 MERCHANDISE ORDERED CUSTOMER PICKUP 22 15958 DISHWASHER SAL 549.99T ORDERED LEAVE IN CARTON SUBTOTAL 549.99 TAX 06.000% 33.00 CARD TYPE: SEARS ACCOUNT ACCT #: W0554633244286/000/000 12/11/97 SEARS ACCOUNT TOTAL 582.99 THANK YOU FOR BEING A SEARS BEST CUSTOMER AND FOR USING YOUR SEARS CARD PURCHASED UNDER MY SEARS ACCOUNT AND SECURITY AGREEMENT, INCORPORATED BY REFERENCE. I GRANT SEARS A SECURITY INTEREST IN THIS MERCHANDISE UNTIL PAID, UNLESS PROHIBITED BY LAW. $582.99 ! i ! ! ! Co /.0 1 ----------=----------------------------- PURCHASED'BY CALIJOR-INFORMATION: c THEODORE ESHELMAN 03-34633-2442E-6 FEBRUARY 23. 1999 DELIVERY (888)732-7703 PARTS (800)366-7278 INSTALLATION (717)261-2186 SERVICE (800)473-7247 S A L E S C H E C K 0 2 2 2 4 0 2 0 4 4 5 9 SATISFACTION GUARANTEED OR YOUR MONEY BACK EXHIBIT "B" ILQM Purchase Date Purchase Price Kenmore Dishwasher, Model #66515958790 12/11/97 $549.99 $445.49 r SHERIFF'S RETURN - REGULAR CASE NO: 1999-04090 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SEARS ROEBUCK AND CO VS. ESHELMAN THEODORE DAVID MCKINNEY , Sheriff or Deputy Sheriff of CUMBERLAND County, Pennsylvania, who being duly sworn according to law, says, the within NOTICE AND COMPLAINT IN was served upon ESHELMAN THEODORE the defendant, at 17,46 HOURS, on the 15th day of July 1999 at 313 NEALY ROAD NEWVILLE, PA 17241 CUMBERLAND County, Pennsylvania, by handing to THEODORE ESHELMAN a true and attested copy of the NOTICE AND COMPLAINT IN together with REPLEVIN and at the same time directing His attention to the contents thereof. Sheriff's Costs: So answers`? Docketing 18.00 Service 8.68 Affidavit .00 Surcharge 8.00 x BASKI I? omas ine, eri _07/16/19LEISAWITZ, HELLER 99 ??jj U U 00 1 1? L L L Sworn and subscribed to before me this /6 4- day of 19 A.D. cl,. G _ otnonoter SEARS, ROEBUCK AND CO., PLAINTIFF vs. THEODORE ESHELMAN, DEFENDANT IN THE COURT OF COMMON PLEA CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-4090-CIVIL PRAECIPE TO END. DISCONTINUE AND SETTLE TO THE CLERK: Please mark the docket in the above-captioned matter as ended, discontinued and settled. Dated: September 2,1999 LEISAWITZ HELLER ABRAMOWITCH PHILLIPS P.C. By: 0 ti? ??- ?haPles J. Phillips, Esquire 2201 Ridgewood Road, Suite 400 Wyomissing, PA 19610 Attorney for Plaintiff 03 i? v O-- -i L !j cr, ' U. l C i M . C71 C)