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HomeMy WebLinkAbout99-04539 , `. u SEARS, ROEBUCK AND CO., IN THE COURT OF COMMON PLEAS PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW VS. o 1' ?1 NO. 9 ( - yiS?l l c? i? `L/1 ?? 7 MARK J. ZVORSKY, 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 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. )SQurt Administrator Ccc.h(). 6:?-, 112- &;-0C-(.-J( &J 4th Fl. ' erl lvani of 01 Courthouse a ?t ? y F- Carlisle, 1 - -620 ?2Lts?? ?? ! 2013 '7?7_ a?_at6 ie SEARS, ROEBUCK AND CO., IN HE COURT OF COMMON PLEAS PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW VS. NO. MARK J. ZVORSKY, DEFENDANT COMPLAINT IN REPt LV1N 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 Mark J. Zvorsky, an adult individual residing at 1801 Saint Clair Road, New Cumberland, Cumberland County, Pennsylvania, 17070 ("Defendant"). 3. Defendant opened account no. 05-54703-48248-5 (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. Sears' security interest in the merchandise purchased pursuant to the Account is perfected without filing a UCC-1 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 August 17, 1998 was One Thousand One Hundred Ninety-five Dollars and Six Cents ($1,195.06). 8. On August 17, 1998 the Defendant tiled a Petition under Chapter 7 of the Bankruptcy Code with the U.S. Bankruptcy Court, Middle District of Pennsylvania to no. 98- 04010RJW. 9. On November 18, 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 t ellock ys 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 Three Hundred Eighty-nine Dollars and Forty-nine Cents ($389.49). 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: 1 `,)3155 Respectfully submitted, BASI?IN, LEISAW(I?TZ, HELLER & ABRAMOWITCH By: A 1l YA - 'Charles J. Phillipts, Esquire Attorney I.D. 39260 2201 Ridgewood Road, Suite 400 Wyomissing, PA 19610 (610) 372-8427 Attorney for Sears, Roebuck and Co. VERIFICATION 1, Debra DeGrenier, state and aver that I am the Recovery Manager 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: -7I 15I Gq SEARS, ROEBUCK AND CO By: I b IIIJ ,tA .c o^v Deebira DeGrenier EXHIBIT "A" •TIME: 04:39PM SEARS CAMP HILL, PA. 002624 RETAIN FOR COMPARISON WITH MONTHLY STATEMENT OR FOR RETURN OR EXCHANGE CUSTOMER: MARK J. ZVORSKY PICK UP DATE: 09/06/97 TRAN# PG/STORE REG# ASSOC# 5156 99 02624 157 11577 MERCHANDISE HOLDING CUSTOMER PICKUP 2057 45076 TV KV32V26 MDS 949.99T 70 97312292 3YR SHOPMA MDS 169.99T EXPIRES: 09/06/00 SUBTOTAL 1119.98 TAX 06.000% 67.20 CARD TYPE: SEARS ACCOUNT ACCT #: W0554703482485/000/000 DELAYED DATE: 09/05/98 DELAY REASON: PROMOTIONAL 09/06/97 DELAYED TOTAL 1187.18 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. $1187.18 I ?V i ? I ? i I I ---------------------------------------- PURCHASED BY PICKUP NUMBER 5156 MARK J ZVORSKY 03-54703-482718-3 FEBRUARY 24, 1999 PARTS (800)366-7278 INSTALLATION (000)000-0000 SERVICE (800)473-7247 S A L E S C H E C K # 026241575156 SATISFACTION GUARANTEED OR YOUR MONEY BACK CALL FOR INFORMATION: DELIVERY (800)732-7747 EXHIBIT `B'• 119m Sony TV, Model No. 474KV32V26 09/06/97 $949.99 Fair Market Value $389.49 i 1 u C'. 1!. r ? V do SHERIFF'S RETURN - REGULAR CASE NO: 1999-04539 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SEARS ROEBUCK AND CO VS. ZVORSKY MARK J CPL. TIMOTHY REITZ , Sheriff or Deputy Sheriff of CUMBERLAND County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - REPLEVIN was served upon ZVORSKY MARK J the defendant, at 19:12 HOURS, on the 13th day of August 1999 at 420 MARKET STREET NEW CUMBERLAND, PA 17070 ,CUMBERLAND County, Pennsylvania, by handing to MARK J. ZVORSKY a true and attested copy of the COMPLAINT - REPLEVIN together with NOTICE and at the same time directing His attention to the contents thereof. Sheriff's Costs: So aDo cketing 18.00 Service 10.54 d Affidavit .00 Surcharge 8.00 mas ine, 5 rheifY-' $3b.b4'BASKII? LEISAWITZ, HELLER 08/16 1999 -? by Sworn and subscribed to before me this A ?!- day of 19 9 A. D. SEARS, ROEBUCK AND CO., Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY : PENNSYLVANIA VS. MARK J. ZVORSKY, Defendant : NO. 99-4539 CIVIL TERM : REPLEVIN PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT IN REPLEVIN AND NOW, this 6ih day of September, 1999, comes Defendant, by and through his counsel, Dorothy L. Mott, Esquire, and files the following preliminary objections to Plaintiff's Complaint: 1. Plaintiffs Complaint is an action in replevin requesting the return of merchandise that Defendant allegedly purchased from Plaintiff company. 2. The basis for the Complaint is an alleged security agreement executed by Defendaw in connection with charge account number 05-54703-48248-5. 3. Plaintiffs Complaint has attached thereto an electronically generated sales invoice purportedly signed by the Defendant. 4. The original sales invoice is not attached as an exhibit. A copy of the relevant portions of the actual original sales invoice is attached to this pleading, labeled Exhibit A and incorporated herein by reference.. 5. The "true" invoice contains a bar code and other information and notations that do not appear on the sales invoice produced as an exhibit to Plaintiffs complaint. 6. The sales invoice attached to the Complaint incorporates by reference a SearsCharge Agreement. 7. Neither the original signed security/charge agreement nor a copy is attached to Plaintiffs complaint as required by Pa.R.Civ.Pr. 10109(h). 8. Plaintiff has presented no evidence that the Defendant signed the incorporated agreement and has not explained the absence of the document. 9. While Plaintiffs Complaint implies that the security agreement is created only by the signing of the sales slip, such allegation is inconsistent with the allegation contained in the Complaint, which specifically references terms and conditions that are not found on the sales slip and which would ordinarily be found in the underlying credit agreement, such as the method of allocation of payments and finance charges. 10. In the absence of a signed credit agreement, the Plaintiff has no basis upon which to charge interest or allocate payments in a manner that is inconsistent with the Goods and Services Installment Sales Act, 69 Pa. C.S.A. Sections 1101 et seq. Preliminary Objections 11. The above-referenced paragraphs are incorporated herein as if set out in full. 12. The replevin action filed by Plaintiff is based on a sales slip which specifically incorporates a charge account agreement. 13. The incorporation of the SearsCharge Agreement by the sales slips merges the two documents for the purpose of demonstrating the entire agreement between the parties. 14. Pursuant to Pa. Rule of Civil procedure 1019, a complaint based on a document must have attached thereto a copy of the document relied upon. The Plaintiffs Complaint does not have a copy of the SearsCharge Agreement attached and does not have the original sales slip or an exact replica of the original sales slip attached. 15. Defendant objects to Plaintiffs Complaint as not being in compliance with Pa.R.Civ. Pro. 1014(h). WHEREFORE, Defendant respectfully requests that the Preliminary Objections to Plaintiffs Complaint be granted by this Honorable Court and that Plaintiff's Complaint be dismissed with prejudice. Respectfully submitted, C i Mott, squire o. 43568 tr t 7Hbu , P 17101 (717)232-6650 r Certificate of Service 1, Marc A. Crum, assistant to Dorothy L. Mott, Esquire, hereby certify that on this day of September, 1999,1 served a copy of the foregoing document(s) by placing the same in the United States Mail, First Class, postage prepaid, addressed as follows: CHARLES J PHILLIPS ESQUIRE BERKSHIRE COMMONS SUITE 400 2201 RIDGEWOOD ROAD WYOMISSING PA 19610-1193 /?-" e, Marc . Crum, AssiL Don by L. Mott, Esquire 114 outh Street Harrisburg, PA 17101 (717)232-6650 i r, c<. v. SEARS, ROEBUCK AND CO., PLAINTIFF VS. MARK J. ZVORSKY, DEFENDANT IN THE COURT OF COMMON PLEA CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-4539-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: November 2, 1999 LEISAWITZ HELLER ABRAMO]VI-T-CH PHILLIPS P.C. By: Chars J i lips, Esquire 2201 Ridgewood Road, Suite 400 Wyomissing, PA 19610 Attorney for Plaintiff G? C: i i^ u.i- U?: G-'i -_ C?'; n ?' is - __ 4--,: ?_. .- O ?? ._