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HomeMy WebLinkAbout99-04601 9i V ,.. 1 COMMONWILATN OF PENNSYLVANIA NOTICE OF APPEAL COURT OF COMMON PLEAS FROM JUDICIAL DISTRICT DISTRICT JUSTICE JUDGMENT COMMON PLEAS Ne. Q 9 Y ?Ybl JC L NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice an the dale and in the case mentioned below >L .7- SS CV 19_tsou0 137 _ 119 IT 19 ae" This block will be signed ONLY when this notation is required under Pa R.C.PJP. No. //appellant was CLAIMANT (See Pa. R.C.PJP, N0. This Notice of Appeal, when received by the District Justice, will operate as a 1001(6) in action before District justice, he MUST SUPERSEDEAS to the judgment for possession in this case FILE A COMPLAINT within twenty (20) days after Signature o Prothonotary a Deputy I tiling his NOTICE of APPEAL. PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of tam 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, delach from copy of notice of appeal to be served upon appellee). PRAECIPEt To Prothonotary Enter rule upon or appellee(s), to file a complaint in this appeal (Comm Pleas No 99, 11601 C7 . T, ) within twenty (20) days after service of rule or suffer entry of judgment of non pros, //y Sp?ef '01 t RULE: To _/+ / /) f)ldQ a lus 'non" or eDerE appellee(s). rfeve a eppe/ke(s) (1) 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 a by certified or registered nail. (2) IF you do not file a complaint within this time, a JUDGMENT OF NON PROS WILL BE ENTERED AGAINST YOU. (3) The date of service of this rule if service was by mail is the date of mailing. Dale.. 191th ,X- 'WWurs or noncom-u COURT FILE TO BE FILED WITH PROTHONOTARY - .. -; N_ L o? U /o em,euelS '-'a1 IxWglo 10 0U!1 npmu 9P.x ilnb0i/le• w0y.e n;p10911'??rNO lO OIrVBUbls J6l -- d0 AVO S'IH-L Sol 3HO33e 03HIHOSens ONV (03WHId3V) NHOMS i10 S lltd?o U111SIulu100 RW (Palalsi6al' olaJa4 GaUarllr ldlaoa, s,,apuas 'prw 1 (paljllla0) Aq ? aDIAJOS leu OSJad Aq [1 61 UO POSSGJPPU Sum DIOH 041 ' wogmol(s)aalladdeagl uodnleaddVloaDll0N eAogeagl 6ulAuedwoojeluieldwoo eap3 olalnH 041 PaAlasl le4LlaUUnl pup. ? 'o,alaq pegaelle ldlaaal s,lapuas'pew (palals16al) (papglao) Aq aaw s euoslad A UD' C] I q?--61' (aweu) aapadde aql undn pue 'Dlalaq paqoelle ldlna, s lapuas 'pew (PGJOIS1691) (PappJaa) Aq ? 001AJes leuoslad Aq ? • - uo Ulalagl poleubsep sollsnp loplsi0 aql undn e -'oN seDld uowiuDp }caddy )o aanoN aul41 Js n Jo clap) Adoa e ? Panlas I legl uuq)e Jo Je.ams Aga,eq I UlAVQIddV 9e : 30 A1NN00 VINVAIASNN3d AID HllV3MN0WW00 (saxoq a/gaggdde yosgo 7eadde /o apgou eql 6w)i/ H313V SA VO 1011 N31 NIH11M 0371-1 39 1SNW aalAJes Jo JooJd s1411 1NIV'IMOO Slid 01 31nu 0NV -IV3ddV 10 30110N d0 301MOS d0 AOOUd .14 COMMONWEALTH OF PENNSYLVANIA COUNTY OF: CUMBERLAND May. Onit No.: 09-3-05 DJNA.0 Han. GAYLE A. ELDER AWmss: 507 N. YORK ST. MECHANICSBURG, PA ToiopHona: (717) 766-4575 17055 A & J POODLES 899 EMILY- DRIVE MECHANICSBURG, PA 17055-5706 NOTICE OF JUDGMENT/TRANSCRIPT CIVIL CASE PLAINTIFF: NAME and ADDRESS rMALONE CHR , ISTA 211 HALL DRIVE SALISBURY, MD,-21804 L J VS. DEFENDANT: NAME and ADDRESS rA & J POODLES -1 899 EMILY DRIVE MECHANICSBURG, PA 17055-5706 L J DocketNo.: CV-0000137-99 Date Filed: 6/01/99 THIS IS TO NOTIFY YOU THAT: Judgment: FOR PLATNTTFF ® Judgment was entered for: (Name) mAT nmR rrmramA ® Judgment was entered against: (Name)__A rc T POODT.RS in the amount of $ 921 . sn on: ? Defendants are jointly and severally liable. (Date of Judgment) 7/ni /go (Date & Time) M Damages will be assessed on: ? This case dismissed without prejudice. Amount of Judgment Subject to AttachmenVAct 5 of 1996 $- F1 Levy is stayed for days or Q generally stayed. IJ 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 NOTICE OF JUDGMENT/TRAN IPT FORM WITH YOUR gOTICE Of APPEAL. ? r .? J Date 'District-JUs(i6g I certify that this is a true and correct co f th/eJ/?ord of th Foceedings containing the judgment. t.' rl Date // j ; District Justice e My commission expires first Monday of January, 2002 SEAL AOPC 31599 Amount of Judgment Judgment Costs Interest on Judgment Attorney Fees Total Post Judgment Credits $ Post Judgment Costs $ Judgment Total PYS510 Cunberland County Inquiry tary's 'ULiice guys Civil 1999-04601 MALONE Reference No..: CHRISTA (vs) A & J TOY POODLES Filed....... Time. .. ..: Execution Date Jury Trial.... Disposed Date. Higher Crt 1.: 7/30/1999 10:52 0/00/0000 Case Type.....: APPEAL - DJ Judgmentt.-.......: 5498.18 Judge Assigned: GUIDO EDWARD E Disposed Desc.: ------------ Case Comments ------------- Higher Crt 2.: 0/00/0000 General Index Attorney Info MALONE CHRISTA PLAINTIFF 221 HALL DRIVE SALISBURY MD 21804 A & J TOY POODLES DEFENDANT 899 EMILY DRIVE MECHANICSBURG PA 17055 SUNDERLAND JACK A DEFENDANT 115 SOUTH HANOVER ST DILLSBURG PA 17019 MOUNTZ ALICE R DEFENDANT 115 NORTH HANOVER ST DILLSBURG PA 01701 0009 Judgment Index Amount Date Desc SUNDERLAND JACK A 51498.118 8 10/01/1999 FAILURE TO ANSWER TO ANSWER MOUNTZ ALICE R * Date Entries - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - 7/30/1999 APPEAL FROM DISTRICT JUSTICE JUDGMENT - --------------- ------------------------ ----------- PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO-FILE---------- 7/30/1999 - 8/09/1999 PROOF-OF SERVICE OF-NOTICE.-OF-APPEAL-AND-RULE.-TO FILE COMPLAINT _ 8/20/1999 COMPLAINT - ___-_- ---------------------------------------- 8/20/1999 CERTIFICATE OF SERVICE --- ---------- -------------- --------------- ------------- PRAECIPE FOR DEFAULT JUDGMENT AND DEFAULT JUDGMENT ENTERED 10/01/1999 -- AGAINST JACK A SUNDERLAND AND ALICE R MOUNTZ -- -------------- - ----------------------------------------- 10/01/1999 NOTICE MAILED TO DEFENDANTS ---- --------------- --------------------------.--------------------- 10/01/1999 IMPORTANT NOTICE FILED ________________ - --- ------------------------------- 1.0/01/1999 CERTIFICATION --------------------------- - - --------- ----- ---------- ----___-__-__- --------------------------- 10/04/1999 ANSWER NEW MATTER AND COUNTERCLAIM ------------ - --------------------------------------- ------------- 10/18/1999 PRAECIPE-TO FILE-THE-ENCLOSED VERIFICATION BY PAUL TANEFF-ESQ -- -- ----------------------------------- ------------- ---- --- 10/20/1999 MOTION TO VACATE DEFAULT JUDGMENT -------------- ------------------------- 10/27/0099 RULE TO SHOW CAUSE - DATED 10/26/99 - IN RE MOTION TO VACATE DEFAULT JUDGMENT - RULE IS ISSUED UPON PLAINTIFF RETURNABLE 15 DAYS AFTER SERVICE - BY EDWARD E GUIDO J - NOTICE MAILED 10/27/99 -------------- _- 10/28/0099 PLAINTIFF'S ANSWER IN OPPOSITION TO DEFENDANTS' MOTION TO VACATE DEFAULT JUDGMENT (PETITION FOR RELIEF FROM DEFAULT JUDGMENT) - _- - 11/03/1999 ORDER OF COURT - DATED 11/2/99 - IN RE DEFENDANTS' MOTION TO BACATE DEFAULT JUDGMENT AND PLAINTIFF'S RESPONSE - HEARING 12/13/99 8:45 A14 CR 5 - BY EDWARD E GUIDO J -------------- ------------------------------------ 12/06/1999 ORDER OF COURT - DATED 12/6/99 - HEARING 12/13/99 IS RESCHEDULED TO PYS510 Cumberland County Prothonotary's Office Page 2 Civil Case Inquiry 1999-04601 MALONE CHRISTA (vs) A & J TOY POODLES Reference No..: Filed........: 7/30/1999 Case Type.....: APPEAL - DJ Time.........: 10:52 Judgment. .. 5498.18 Execution Date 0/00/0000 Judge Assigned: GUIDO EDWARD F. Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 --------- Case Comments -------------- Higher Crt 1.: 1/5/00 1:30 PM CR 5 - BY EDWARD E GUIDO JH- COPIEStMAILED 12/7/99 --'--- ------------------------------------------------------------ 1/06/2000 ORDER OF COURT - DATED 1/4/00 - PARTIES ARE TO SUBMIT BRIEFS BY LOSEpOF BUSINESS 1/25/00 - BY EDWARD E GUIDO J - COPIES MAILED 1/6/ -------------------------- 2/04/1999 TRANSCRIPT FILED - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - * Escrow Information * Fees & Debits Bed*Bal PYmts/Adj End Bal ******************************** ******* ****** ******************************* APPEAL D.J. 35.00 35.00 .00 TAX ON APPEAL .25 .25 .00 SETTLEMENT 5.00 5.00 .00 JCP FEE 5.00 5.00 .00 JDMT/DEFAULT 9.00 9.00 .00 ------------------------ ------------ 54.25 54.25 .00 * End of Case Information CHRISTA MALONE, Plaintiff, Va. JACK A. SUNDERLAND AND ALICE R. MOUNTZ, t/a A&J TOY POODLES, Defendants. AN 2 72000I k IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-4601 CIVIL TERM CIVIL ACTION-LAW ORDER AND NOW, this day of 2000, this cause coming to be heard on the written sti ulation of the parties filed herein, a copy of which is attached hereto as Exhibit-"A" and made a part of this Court Order, and the Court being fully advised in the premises, it is hereby: ORDERED, ADJUDGED AND DECREED, that: 1. Defendant shall pay the Plaintiff the sum of $1,700.00, which sum shall be paid to the Plaintiff's attorney, Kathleen K. Shaulis, Esq., to be held in escrow until this Order has been entered for record. 2. Prothonotary is directed to enter a judgment in favor of the Plaintiff against the Defendant in the above titled action in the sum of $1,700.00 without costs, interest, expenses or attorneys fees; and (ii) a further entry shall be made judgment satisfied. 3. The respective Plaintiff and Defendant shall be pay its own court costs, attorneys fees and any other expenses that may have been or will be incurred in the future in connection with or related in any way with the above titled action. 4. The parties' Stipulation Agreement shall constitute a full and complete settlement of all of the differences and controversies between the parties arising out of or connected in any way with the above titl action. BY Edward E. Guido, J. 3ef:c:\mount\alice\doc014.wpd CA a$ .o L 4q,5 ,'? ; TICF 7AAY 00 JU'd 28 AM 8t 30 CUMPENNSYL COUNTY CHRISTA MALONE, Plaintiff, s Va. s JACK A. SUNDERLAND AND ALICE R. MOUNTZ, t/a A&J TOY POODLES, s Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY,PENNSYLVANIA NO. 99-4601 CIVIL TERM CIVIL ACTION-LAW STIPULATION AGREEMENT THIS STIPULATION AGREEMENT (hereinafter "Agreement") is made this 6th day of June, 2000 by and between Christa Malone (hereinafter "Plaintiff") and A&J Toy Poodles, a general partnership of Alice R. Mountz and Jack Sunderland (hereinafter collectively referred to as "Defendant"). WITNESSETH: WHEREAS, on August 20, 1999 the above titled action was commenced by the Complaint of the Plaintiff against the Defendant; and WHEREAS, on October 1, 1999 a default judgment was entered in the above titled action in favor of the Plaintiff against the Defendant; and WHEREAS, on January 5, 2000 a hearing was held before the Honorable Edward E. Guido on the Defendant's "Motion To Vacate Default Judgment" (i.e., Petition To Open Default Judgment); and WHEREAS, on April 9, 2000 an Order was issued by the Cumberland County Court of Common Pleas (oer Guido, J.) denying the Defendant's petition to open the default judgment and scheduling a hearing limited to the issue of damages; and WHEREAS, the parties desire to settle and compromise the issue of damages and have reached a settlement agreement with respect thereto; NOW, THEREFORE, in consideration of these premises, the mutual promises contained herein and other good and valuable consideration, the parties, intending to be legally bound hereby, agree as follows: 1. The Defendant does not agree with and, therefore does not admit any of the allegations contained in the Plaintiff's Complaint including, but not limited to, the basis for or the amount of damages sought in the Plaintiff's Complaint. 2. However, since the parties desire to settle the issue of damages pending before the above Court, the Defendant has agreed to pay the Plaintiff the sum of $1,700.00, which sum shall be paid to the Plaintiff's attorney, Kathleen K. Shaulis, Esq., to be held in escrow until this Agreement has been executed by the parties and an Order of Court has been issued thereon. 3. In consideration of the aforesaid payment, the Plaintiff agrees with the Defendant that: (i) an entry shall be made in the above titled case entering a judgment for the Plaintiff in the sum of $1,700.00 without costs, interest, expenses or attorneys fees; and (ii) a further entry shall be made judgment satisfied. 4. The respective Plaintiff and Defendant shall be pay its own court costs, attorneys fees and any other expenses that may have been or will be incurred in the future in connection with or related in any way with the above titled action. 5. The parties agree that this settlement shall constitute a full and complete settlement of all of the differences and controversies between the parties arising out of or connected in any way with the above titled action. 6. The parties to this Agreement release each other from any demand, cause of action, suit, or claim of any kind, known or unknown, including claim for attorneys fees, which either ever had or now has against the other, arising out of or connected in any way to the above titled action, except for the express obligations created, imposed or assumed under this Agreement. 7. The parties agree that this Agreement shall be binding upon and inure to the benefit of each party's respective heirs, executors, administrators, legal representatives, agents, employees, partners, successors and/or assigns. 8. The parties agree that this Agreement shall be entered as an Order of the above Court. 9. The parties have reviewed this Agreement with their respective attorneys, for Plaintiff, Kathleen K. Shaulis, Esq. and for Defendant, Paul Taneff, Esq., and have had it explained to them to their satisfaction. 10. Alice R. Mountz warrants and represents that she is authorized to execute this Agreement on behalf of the partnership, A&J Toy Poodles. IN WITNESS WHEREOF, the parties, intending to be legally bound hereby, have affixed their hands and seals on the 2 date and year first above written. PARTIES: chA w,tz. -). mC&T. Unrista Malone AW TOY POODLES By: ./ Alice R. Mo tz rtner WITNESSES: U114anae-f , Es v ,: ?:- ^ •6 :?, _ v ? - O ?, ??? ? o- ? r . _ ? yU? CHRISTA MALONE, Plaintiff V. JACK A. SUNDERLAND and ALICE R. MOUNTZ t/a A & J TOY POODLES, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-4601 CIVIL TERM ORDER OF LOUR AND NOW, this y? day of APRIL, 2000, for the reasons stated in the attached opinion, defendants' petition to open the default judgment is denied. A trial limited to the issue of damages is scheduled before this Court on Wednesday, June 14, 2000, at 9:30 a.m. in Courtroom # 5 of the Cumberland County Courthouse. By the Court, Edward E. Guido, J. Kathleen K. Shaulis, Esquire For the Plaintiff Paul Taneff, Esquire For the Defendants :sld _ - -, ?- ?:: ?:, ;` ._ ?,??'? : `;' ?? ` ?;; . : - ?:? ? __ <.., CHRISTA MALONE, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. JACK A. SUNDERLAND and ALICE R. MOUNTZ t/a A & J TOY POODLES, Defendants NO. 99-4601 CIVIL TERM Currently before us is defendants' "Motion to Vacate Default Judgment." A hearing on said motion was held on January 5, 2000. The parties were given the opportunity to file briefs in support of their respective positions, which they have done. The matter is ready for disposition. On July 30, 1999, defendants commenced this action by filing a pro se appeal from a judgment entered against them at the district justice level. On August 20, 1999, plaintiff filed a complaint in response to a rule issued upon her by defendants. Although the complaint was promptly served upon the defendants, I they did not meet with an attorney to discuss the matter until September 13, 1999.2 Notes of Testimony, pp. 6-7. ' Notes of Testimony, pp. 6-7. 99-4601 CIVIL TERM On September 13, 1999, defendants' counsel mailed a letter to plaintiffs counsel requesting an extension of time to October 14 to file an answer.3 Plaintiffs counsel indicated that she never received the letter.a We believe her. On September 14, 1999, plaintiffs counsel mailed a copy of the notice of default required by Pa. R.C.P. 237.1 to each defendant.5 Defendant Mountz testified that neither she nor her codefendant received the notice.6 We do not believe her. On October I, 1999, a judgment by default was entered against the defendants for failure to respond to the complaint.7 On that same date the prothonotary sent notice of the default judgment to each defendant as required by Pa. R.C.P. 236.8 Defendants filed an Answer with New Matter and counterclaim on October 4, 1999.9 On October 20, 2000, they filed the "Motion to Vacate Default Judgment" which is currently before us. 10 At the commencement of the hearing on defendants' motion it was agreed that they were seeking to have the default judgment opened rather than vacated.' 1 Pa. R.C.P. 237.3 provides as follows: RELIEF FROM JUDGMENT OF NON PROS OR BY DEFAULT (a) A petition for relief from a judgment of non pros or of default entered pursuant to Rule 237.1 shall have attached thereto a verified copy of the complaint or answer which the petitioner seeks leave to file. Defendants' counsel did not enter his appearance of record at that time. ° Notes of Testimony, p. 20. 5 Notes of Testimony of January 5, 2000, proceeding, Respondent's Exhibit 1. 6 Notes of Testimony, pp. 10-11. 7 Refer to docket entries. 5= aLm paragraph 4 of defendants' Motion to Vacate Judgment and Plaintiffs Response Thereto. e Refer to docket entries. v Refer to docket entries. 0 Refer to docket entries. January 5, 2000, Notes of Testimony, p. 3. 99-4601 CIVIL TERM (b) If the petition is filed within ten days after the entry of thejudgment on the docket, the court shall open the judgment if the proposed complaint or answer states a meritorious cause of action or defense. In the instant case, the motion was not filed within ten days after entry of the default judgment. 12 Therefore, Rule 237.3 is not applicable. However, our inquiry does not end there. A petition to open a defaultjudgment is an appeal to the equitable powers of the court. Alba v. Urology Acsoec of Kingston, 409 Pa.Super. 406, 598 A.2d 57 (1991). Default judgments are not favored. Kraynicv Hert3 h_ , 443 Pa. 105, 277 A.2d 144 (1971). In order to be entitled to relief "the moving party must (1) promptly file a petition to open the default judgment, (2) show a meritorious defense, and (3) provide a reasonable excuse or explanation for its failure to file a responsive pleading." Allegheny Hydro No. I v. American Line Builders- Inc., 722 A.2d 189, 191 (Pa.Super. 1998). In the instant case, the defendants have failed to meet any of those requirements. Prompt Filing Of Petition To Open. There is no "bright line test" to determine whether a petition to open a default judgment has been timely filed. Id, at 193. Rather, we must focus "on two factors: (l) the length of the delay between discovery of the entry of the default judgment and filing the petition to open judgment, and (2) the reason for the delay." Id. (quoting Quatrochi v. Gaiters, 251 Pa.Super. 115, 380 A.2d 404, 407 (Pa.Super. 1977)). '' As noted below, we are also of the opinion that it did not state a meritorious defense. 99-4601 CIVIL TERM In the instant case, the defendant received notification of the default judgment no later than October 3, 1999.13 Their petition to open was not filed until seventeen days later on October 20, 1999. The defendants did not offer any reason for the delay. Under the circumstances, we are not prepared to say that the petition to open was promptly filed. Meritorious Defense. Attached to the petition was a copy of the answer which the defendants had filed three days after entry of the default judgment. Upon reviewing the complaint and answer, we are satisfied that defendants have not set forth a sufficient defense to justify opening the judgment.14 The undisputed facts may be summarized as follows. On February 1, 1999, plaintiff paid defendants $400 as a deposit on a puppy. 15 On March 20, 1999, plaintiff paid the balance of the purchase price and took possession of the PUPPY. 16 At that time Defendant Mountz signed the following document: On this day March 20, 1999, I Alice K. Mountz of A&T Toy Poodles, have sold one 7-week old black female teacup poodle to Christa Malone for the amount of $800.00 paid in full. Buyer reserves the right to have the puppy examined by her veterinarian within 96 hours. If in fact any infectious disease and/or any congenital disorder is discovered the puppy may be retumed for a full refund. 17 " Defendant Mountz testified that she dropped the notice in the mail to her attorney the day after she received it. He called and discussed the significance of it with her on October 5, 1999. (January 5, 2000, Notes of Testimony, p. 10). Assuming that her lawyer called her immediately upon receipt of the notice, and assuming that it took only one day to reach him after she mailed it, defendants would have received the notice of default judgment on October 3, 1999. 14 Not only must the defense be meritorious, but it must also be set forth in "precise, specific, clear and unmistaken terms." Shainline Y. Alberti Builders. Inc., 266 Pa.Super. 129, 135, 403 A.2d 577, 579 (1979). 15 Complaint and Answer, paragraph 8. 16 Complaint and Answer, paragraph 11. 17 Complaint and Answer, paragraph 12 and Complaint Exhibit 1. 99-4601 CIVIL TERM Although she signed the above written guarantee, Defendant Mountz advised plaintiff that it was unnecessary since all of her dogs were guaranteed for one year.ls Plaintiff s husband advised defendants by phone that their vet told them to return the puppy. Defendants said that this would not be a problem. 19 The puppy was returned on March 25, 1999.20 Defendants refused to refund plaintiffs money until the dog was examined by their own veterinarian. 21 On March 27, 1999, defendant called plaintiff to advise her that the dog had been examined by their own vet and that she would be receiving a refund check within a week.22 Defendants have never refunded the purchase price to plaintiff.23 The only defense proffered by defendants in their answer is set forth in paragraph 45 of the new matter as follows: Any problems which the puppy may have experienced, was proximately caused by the Plaintiff's own neglect, fault or careless conduct in caring for a seven week old puppy including, but not limited to, contributory negligence and assumption of risk by the Plaintiff, and without any negligence, fault, want of care or other culpable conduct on the part of the answering Defendants 24 The above language inartfully and improperly attempts to set forth a negligence defense to a contract action. More importantly, the defendants have admitted, either expressly or by operation of law, all of the elements necessary for plaintiff to obtain her judgment. Furthermore, " Complaint and Answer, paragraph 13. Defendants answer contained a general denial of paragraph 13. However, it is well settled that a general denial of an allegation in a complaint operates as an admission of that allegation. Swift v. Milner, 371 Pu.Super. 302, 538 A.2d 28 (1988); Pa. R.C.P. 1029(6). 19 Complaint and Answer, paragraph 16. (Answer contains a general denial). 20 Plaintiff claims the return date was March 25, 1999. Defendants admit that the dog was returned, but allege that it was on March 27, 1999. (Complaint and Answer, paragraph 17). " Complaint and Answer, paragraph 18. 22 Complaint and Answer, paragraph 21. (Answer contains a general denial). 23 Complaint and Answer, paragraph 2l. 14 New Matter, paragraph 45. 99-4601 CIVIL TERM the defendants have not attempted to explain under what possible theory they can keep the dog and not return the purchase price. Reasonable Explanation For Failing To File Answer. Neither the defendants nor their counsel have offered a credible explanation for their failure to file an answer before the default judgment was entered. Defendants' counsel contends that he mailed a letter to plaintiff s counsel on September 13, 1999, in which he requested an extension until October 15 to file an answer. The letter states in relevant part as follows: This letter will acknowledge that we met with our client to day [sic] to review the Complaint and we will be preparing an Answer for filing. However, in view of my current calendar, I would respectfully request a reasonable extension of time to file an Answer. Unless I hear from you to the contrary, I will assume that if we are filed no later than October 15, 1999, you will not have a problem. Otherwise, we will file a Motion with the Court requesting an enlargement of time necessary to complete our initial investigation and prepare a responsive pleading. 25 Plaintiff s counsel said that she did not receive the letter and we believe her. However, even if the letter had been received by plaintiffs counsel, her action in mailing the notice of default to each of the individual defendants on September 14, 1999, was sufficient to put them on notice that the requested extension was not agreeable. 26 Although Defendant Mountz testified that they never received the notices, we simply did not believe her testimony. She was confused, evasive, and not at all credible. Furthermore, it is simply too much of a coincidence for us to believe that the letter 25 January 5, 2000, proceedings, Petitioner's Exhibit 1. 26 January 5, 2000, proceedings, Respondent's Exhibit 1. At the time the notices of default were mailed, plaintiff s counsel was still working under the impression that defendants were proceeding pro se. 99-4601 CIVIL TERM requesting an extension, and two separate notices of default were all lost in the mail. We are satisfied that defendants received the notices and chose to ignore them. While we recognize that default judgments are not favored under the law, we are satisfied that the equities of the current case dictate against allowing defendants to open the judgment. The cavalier treatment of plaintiffs claim cannot be excused. This is especially true in light of the fact that a meritorious defense to that claim does not appear to exist. Therefore, we are constrained to deny their request to open the default judgment. However, the amount of the judgment is another matter. Pa. R.C.P. 1037(b) provides, in relevant part, as follows: The prothonotary, on praecipe of the plaintiff, shall enter judgment against the defendant for failure to file within the required time a pleading to a complaint which contains a notice to defend or for any relief admitted to be due by the defendant's pleadings. (1) The prothonotary shall assess damages for the amount to which the plaintiff is entitled if it is a sum certain or which can be made certain by computation, but if it is not, the damages shall be assessed at a trial at which the issues shall be limited to the amount of the damages. In the instant case, the plaintiff requests a return of the purchase price plus prejudgment interest. Certainly, these items are, or can be computed to be, a sum certain. However, plaintiff also claims numerous ancillary damages, as well as treble damages and counsel fees under the Uniform Trade Practices and Consumer Protection law 73 P.S. § 201-1 et seq. Whether plaintiff is entitled to treble damages and attorney fees under the UTCPL is a question that must be decided by this Court. 72 P.S. § 201-9.2(a). Since we cannot state with certainty that the amount of damages computed by plaintiff are appropriate, we will schedule a trial limited solely to the issue of damages in accordance 7 99-4601 CIVIL TERM with Pa. R.C.P. 1037(b)(1). SSA alu Baraonfski v. Malone, 371 Pa. 479,91 A.2d 908 (1952). AND NOW, this AIH day of APRIL, 2000, for the reasons stated in the attached opinion, defendants' petition to open the default judgment is denied. A trial limited to the issue of damages is scheduled before this Court on Wednesday, June 14, 2000, at 9:30 a.m. in Courtroom # 5 of the Cumberland County Courthouse. By the Court, /s/ Edward E. Guido Edward E. Guido, J. Kathleen K. Shaulis, Esquire For the Plaintiff Paul Taneff, Esquire For the Defendants Ad 8 /I f- JAN 8 8 2000 CHRISTA MALONE, Plaintiff, VS. JACK A. SUNDERLAND and ALICE R. MOUNTZ, t/a A&J TOY POODLES Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-4601 CIVIL TERM CIVIL ACTION-LAW DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTION TO VACATE DEFAULT JUDGMENT (PETITION TO OPEN DEFAULT JUDGMENT) NOW COME, the Defendants, JACK A. SUNDERLAND and ALICE R. MOUNTZ, t/a A&J TOY POODLES, by and through their attorneys, Ricci & Taneff, and submit this memorandum in support of their motion seeking to open the default judgment entered in the above titled cause. In support of their memorandum, the Defendants state as follows: PROCEDURAL HISTORY This matter comes before the Court on the Plaintiff's Complaint. And, is one of two cases filed by opposing counsel on behalf of two out of state residents against the Defendants brought under the Unfair Trade Practices and Consumer Protection Law. The procedural history of this case is set forth below in outline form for ease of reference. 1. On August 20, 1999, the Plaintiff filed a Complaint against the Defendants for allegedly selling them a "defective dog" 2. On September 13, 1999, Defendant's counsel wrote to (Plaintiff's counsel requesting additional time to respond to the Complaint. 3. On September 14, 1999, Plaintiff's counsel sent a ten day notice to the Defendants by first class mail. 4. On October 1, 1999, Defendants' counsel mailed to the Prothonotary of this Court the Defendants' Answer With New Matter for filing. 5. Coincidentally, on October 1, 1999 the Plaintiff's counsel filed a Default Judgment against the Defendants. 6. On October 4, 1999, the Defendants' Answer With New Matter was filed for record by the Prothonotary. 7. The Notice of Intention to file for a default judgment required under Rule 237.1 was never received by the Defendants. 8. On or about October 4, 1999, Defendants received Court's notice that a default judgment had been entered against them. Not aware of the significance of the notice, it was forwarr?d to Defendants' counsel with a note asking "what does this mean". 9. On or about October 5, 1999, Defendants' counsel advised Defendants' counsel of the meaning and significance of the default judgment. 10. On October 15, 1999, Defendants' counsel mailed to the Prothonotary of this Court the Defendants' Motion to Vacate Default Judgment (Petition To Open Default Judgment). 11. On October 20, 1999, the Defendants' Motion To 2 Vacate Default Judgment was filed for record by the Prothonotary. 12. On January 5, 2000, a testimonial hearing was held on the Defendants' Motion. At that hearing, the Defendant Alice Mountz testified that she did not receive the ten day notice. Now pending before this Court for disposition is the Defendants' Motion seeking to open the default judgment. QUESTION PRESENTED Should the Defendants' Motion To Vacate Default Judgment (Petition To Open Judgment) be granted if they have demonstrated that the default judgment was excusable, have a meritorious defense to the underlying action and have acted with reasonable promptitude in seeking to have the default judgment vacated? Answer: Yes. ARGUMENT A default judgment is draconian in nature and should not be allowed to stand if it appears that the Defendants have not been dilatory, have a meritorious defense to the underlying action and there is a reasonable explanation for their not having responded to the notice of default in the first instance. ueen City Elec. Su 1 Co. Inc. v. Soltis Elec. Co. Inc., 421 A.2d 174, 491 Pa. 354 (1980). The determination of whether to open a default judgment is equitable in nature and must be made in light of what is reasonable under the circumstances. Id. And, in this determination, it is critical that the Court consider giving the 3 Defendants the opportunity to have their day in court and to have their case decided on the merits. Kravnick v. Hertz, 277 A.2d 144, 443 Pa. 105 (1971). A. Motion To Wen Was Timely Filed By long practice and common understanding, the rule to open a judgment and let a defendant into a defense has long applied to default judgements and was invented as a substitute for a bill in equity. Rome S. & S. Station v. Finch, 120 Pa. Super. 402, 404 (Pa. Super. 1936). There is no time limit as to the time at which a default judgment may be opened. Id. at 404. Because of the equitable nature of the proceedings, a petition to open a default judgment should be filed in a timely fashion. Funds For Business Growth. Inc. v. Maraldo, 443 Pa. 281, 278 A. 2d 922 (1971). The equitable doctrine of laches will bar a petition to open a default judgment only if under the circumstances of a particular case a party fails to exercise due diligence in proceedings to assert his or her rights. Standard Furnace Co.. Inc. v. Lorinez, 106 Pa. Super. 116, 161 A.2d 573 (1932). In the instant case, the default judgment was entered for record on October 1, 1999, but not received by the Defendants until October 4, 1999. Moreover, its significance was not made known to the Defendants until October 5, 1999 in a telephone call between the Defendants and their counsel. A defendant cannot be charged with laches until he has been put on notice that a judgment has been entered against him. 4 Cronauer v Bayer, 140 Pa. Super. 91, 13 A.2d 75 (1940). Within ten (10) days of being notified of the default judgment, the Defendants' motion to open default judgment was prepared and mailed to the Court for filing. The motion was subsequently filed for record by the Court on October 20, 1999. The Plaintiff would have this Court conclude that a delay of two and one half weeks is dilatory. Yet, there are numerous cases holding to the contrary. E.a., Bowman v. Berke 259 Pa. 327, 103 A. 49 (1918) (holding that a period of two years indicated no laches on the part of the defendant); Johnston & Somerset Ry. Co v Hoffman, 278 Pa. 314, 123 A. 302 (1924) (holding that a delay of three months was not unreasonable). Further, the Plaintiff failed to properly raise the defense of laches in their Answer to the Defendants' motion. If not raised as a defense under the heading of New Matter to a petition to open a default judgment, the defense of laches is waived. Sanctis v Laaerbusch, 213 Pa. Super. 483, 249 A.2d 919 (1968). See also Kiveller v. Becker, 338 Pa. 169, 12 A.2d 567 (1940) (refusing to consider the question of laches since it had not been properly raised in the answer to the petition to open). B. Default Can Be Reasonably Explained Rule 237.1 of the Pa. R. Civ. P. mandates that a plaintiff may not proceed to judgment unless a. defendant is provided with at least ten days notice before the judgment is taken. Admittedly, the rule does not require the use of certified mail, although that is the better and preferred 5 practice since it avoids any question about whether the notice was properly served upon the defendant. Snap judgments taken without notice are strongly disfavored by the courts. Safeguard Inv. Co v Energv Service Associates. Inc., 258 Pa. Super. 512, 393 A.2d 976 (1978). Thus, a default judgment taken without proof of actual receipt of the ten day notice required under Rule 237.1 is an important factor in determining whether a default judgment should be opened. Ruggiero v. Phillips, 250 Pa. Super. 399, 378 A. 2d 971 (1977). In the instant case, the Defendant Alice Mountz testified that the only notice she received from the Court was the notice that a default judgment had been entered against her. She further testified that she had no understanding of the default notice until it was explained to her in a telephone conversation with her counsel on or about October 5, 1999. The Defendant's testimony went unchallenged by the Plaintiff. While many courts continue to apply the "reasonable excuse" standard in determining whether a default judgment should be opened, more modern decisions require only that the petitioner merely show that he or she acted promptly and allege a meritorious defense. Chettenham Nat. Bank v Snelling, 230 Pa. Super. 998, 326 A.2d 557 (1979); Triangle Blda. Suoo. & Lumber Co. v. Zerman, 292 Pa. Super. 315, 363 A.2d 1287 (1976); Gitt v. Myers, 273 Pa. Super. 310, 917 A.2d 669 (1979). Admittedly, these cases deal with the application of Rule 2959(e) of the Pa. R. Civ. P. dealing with confessed 6 judgments. However, they illustrate that the standard of evidence necessary to open a judgment has been substantially lessened in favor of a defendant. In short, in exercising its equitable powers in opening a judgment, a Court need not be persuaded by the credibility, weight or justice of a defendant's defense. Rather, the standard of evidence to be employed is that employed on consideration of a directed verdict and the facts must be viewed in a light most favorable to the defendant; accepting as true all evidence and inferences therefrom supporting the defendant's defense and rejecting the adverse allegations of the plaintiff. Taub v. Cedarbrook Joint Venture, 251 Pa. Super. 572, 404 A.2d 403 (1978). Admittedly, the better practice of securing an extension to file a pleading should be by agreement, Defendants' counsel, however, had no reason to believe that the letter of September 13, 1999 would not be received by Plaintiff's counsel. In fact, by her own admission, Plaintiff's counsel at the hearing of January 5, 2000 admitted that she would have agreed to an extension had she known of the request. Assuming arguendo that Plaintiff's counsel had agreed to the extension of time to file an Answer to the Plaintiff's Complaint, it can hardly be argued that the Plaintiff would be prejudiced by opening this default judgment. For, in such a case the Plaintiff would be required to prove the allegations contained in her Complaint like any other claim had a default judgment not been entered. 7 C. Defendants Have A Meritorious Defense The Court may take notice of the Defendants' Answer to the Plaintiff's Complaint in its determination of whether they have a meritorious defense to the Plaintiff's underlying action. In short, the Plaintiff's Complaint alleges that the Defendants sold the Plaintiff a "defective dog". The Defendants' Answer unequivocally denies this and other allegations contained in the Plaintiff's Complaint. The very nature of the Plaintiff's claim goes to whether the dog at the time of purchase suffered from a hereditary and/or congenital defect. By the Plaintiff's own admission in her Complaint, such a defect could not be diagnosed without testing. And, therefore, her claim, without sufficient scientific proof, cannot be sustained. Plaintiff's brief makes much ado about the New Matters asserted in the Defendants' Answer; namely, contributory negligence and assumption of risk. As the Superior Court stated as long ago as 1898, the rights of the defendant depend not on the technical character of the defense, as legal or equitable, but on its sufficiency as exhibited to the Court. Koch v. Biesecker, 7 Pa. Super. 37 (1898). Moreover, in considering whether to open a default judgment, the Court is not required to try the case on the merits. Shainline v. Alberti Builders. Inc., 266 Pa. Super. 129, 903 A. 2d 577 (1979). The Defendants' Answer denies the allegations of the Plaintiff's Complaint. These denials, coupled with the 8 Defendants' New Matters, are sufficient to demonstrate a meritorious defense in the instant case. In sum, the Defendants have a meritorious defense to the Plaintiff's unsupported allegations that the dog suffered from a hereditary and/or congenital defect. Further, the Defendants acted with reasonable promptitude in seeking to have the default judgement opened. And, the Defendants had a reasonable explanation for having failed to respond to the notice of intention to file a default judgment. CONCLUSION For all of the foregoing reasons, the Defendants' Motion To Vacate Default Judgment (Petition To Open Default Judgment) should be granted. RICCI & TANEFF Dated: January 25, 2000 Ref:c:\x\c\mountz\doc012. wpd Paul Taneff, Esq. Sup. Ct. No. 63777 9219 Derry Street Harrisburg, PA 17111 (717) 569-5833 Attorneys for Plaintiff 9 I. CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Defendants' Memorandum In Support of Motion To Vacate Default Judgment (Petition To Open Default Judgment) was sent via first class, U.S. Mail, postage prepaid, this 25th day of January, 2000 to the following person(s) at the address(es) set forth below their respective names: (1) Kathleen K. Shaulis, Esq. 44 South Hanover Street Carlisle, PA 17013 RICCI & TANEFF By: Ual ?azz FariT Taneff, Esq. Sup. Ct. No. 63777 4219 Derry Street Harrisburg, PA 17111 (717) 564-5833 Attorneys for Defendants Ref:c::\x\c\mount\a lice\csl-wpd RICCI & TANEFF ATTORNEYS AND COUNSELLORS AT LAW Gregory J. Ricci Paul Tanoll• January 25, 2000 CURT LONG PROTHONOTARY CUMBERLAND COUNTY COURTHOUSE 1 COURTHOUSE SQUARE CARLISLE PA 17013-3387 RE: MALONE V. SUNDERLAND ET AL.. NO. 99-4601 CIVIL Dear Mr. Long: 4219 Derry Street Harrisburg, PA 17111 Tel: (717) S64.5933 Fax: (717) 564-9693 Please file the enclosed Memorandum In Support Of Defendants' Motion To Vacate Default Judgment in the above referenced matter. Also, please return a "clocked" copy of this cover letter to the undersigned's attention. Towards this end, I have enclosed a self-stamped, addressed envelope for your use. Thank you for your kind assistance in this matter. V ruly yours, CLQ Pa jul Taneff PT/pt Enclosures: (As referenced above.) cc: Alice R. Mountz 899 Emily Drive Mechanicsburg, PA 17055 ab0 a0mIUM In Illinois 11,6 0 PIN F A X T R A N S M I T T A L RICCI & TANEFF ATTORNEYS AND COUNSELLORS AT LAW 4219 Derry Street, Harrisburg, PA 17111 Telephone: (717) 564-5833 Fax (only): (717) 564-8683 Date: N u m b e r / / 2000 Time: o f p a g e s (including this sheet) T o . At Fax N: ( v ) x 6 Ctlt/ C o m p a n y ) R e g a r d i n g : - - . /? AX 0/46 v ?L,un ? A'L/I,an it W 11d/ JU06(' m /)n1S At /)P/Pr 9, (10 'r/ /P ez' L '('c. 1z(9r:e, r 7-/y,45 /rCL?i /tt . EO ?iO ? • i rl CIOLL /?ti ' ?w?? / i S' `UL Noce: ii any of these fax copies are illegible,.or you do not receive the same number of pages as stated above, please contact me immediately at: (717) 564-5833 uvNYIDENTIALITY NOTE Information/documents accompanying this transmission contain information from the Law firm of RICCI & TANEFF, which is confidential and/or legally privileged. This information is intended solely for the use of the individual or entity named on this transmission sheet. If you are not the designated recipient, you are hereby notified that any disclosure, copying, distribution or taking of any action of reliance on the contents of this information is prohibited. If you have received this transmission in error, please notify us by telephone immediately so that we can arrange for the return of the original documents to us at no cost to you and with reimbursement for costs you may have incurred in responding to this notification. RICCI & TANEFF ATTORNEYS AND COUNSELLORS AT LAW Gregory J. Ricci Paul Tane6• January 25, 2000 VIA FAX TRANSMISSION TO (717) 240-6462 AND FIRST CLASS MAIL HONORABLE EDWARD E GUIDO, JR CUMBERLAND COUNTY COURT OF CP 1 COURTHOUSE SQUARE CARLISLE PA 17013-3387 RE: MALONE V. SUNDERLAND ET AL., NO. 99-4601 CIVIL Dear Judge Guido: 4219 Deity Street Harrisburg, PA 17111 Tel: (717) 564.5833 Fax: (717) 6646683 Pursuant to your Order of January 4, 2000, our brief was due to be filed by the close of business today. I personally called your Chambers this morning and advised your law clerk that because of today's snow storm, I would be unable to make it out to Carlisle to file the brief. Instead, I was instructed to send a copy of the brief to your Chambers by facsimile transmission and to arrange to file the brief with the Prothonotary's Office at a later time. Towards that end, we mailed our brief to the Prothonotary's Office today by U.S. mail, first class, postage prepaid with our filing instructions. Thanking you and your law clerk for your courtesy and accommodation in this matter, I remain, Very truly yours, Paul Taneff QtiL PT/pt Enclosure: (As referenced above.) aho adminad in Illinois Letter to Hon. E.E. Guido, Jr. Re: Malone v. Sunderland et al. January 25, 2000 Page 2 cc: Alice R. Mountz (w/o enc.) 899 Emily Drive Mechanicsburg, PA 17055 Kathleen K. Shaulis, Esq. (w/enc.) 99 South Hanover Street Carlisle, PA 17013 0 JAN 10 2000e CHRISTA MALONE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - LAW JACK A. SUNDERLAND AND NO. 99-9601 CIVIL TERM ALICE R. MOUNTZ t/a A & J TOY POODLES, Defendants BRIEF OF PLAINTIFF IN OPPOSITION TO OPENING DEFAULT JUDGMENT AGAINST DEFENDANTS Issue Whether the Defendants Jack A. Sunderland and Alice R. Mountz have met their burden of proof to permit the court to open the default judgment filed against them by Plaintiff Christa Malone. Statement of the Procedural Case Pursuant to Pa.R.C.P.D.J. 1005, on August 20, 1999, Plaintiff served on both Defendants individually by first class mail at 899 Emily Drive, Mechanicsburg, Pennsylvania 17055, a copy of the complaint that Plaintiff filed in Cumberland County Court on that day. Defendants did not file an answer to this complaint in the time limit specified in Pa.R.C.P. 1026. On September 19, 1999, a Notice of Praecipe for Entry of Default Judgment, also known as a ten-day notice, was filed with the Prothonotary and mailed to both Defendants individually by first class mail at 899 Emily Drive, 1 Mechanicsburg, Pennsylvania 17055. A certificate of mailing (Form 3817) for each individual mailing was obtained. On October 1, 1999, eighteen days after the ten-day notice was sent, Plaintiff filed the Default Judgments against both Defendants individually. On October 20, 1999, Defendants' Motion to Vacate Default Judgment was filed with the court. A copy of the Defendants' proposed Answer to be filed was appended to the Motion. On October 28, 1999, Plaintiff filed an Answer in Opposition to Defendants' Motion. On Wednesday, January 5, 2000, a hearing was held so that the Defendants could present testimony/ evidence as to the allegations made in their Motion to Vacate. Argument I. Opening Default Judgment In a proceeding to open a default judgment, the petition and the answer thereto comprise the pleadings, and relief is granted only on the grounds embraced therein. P. L. E. Judgment §82, citing Brown & Bigelow v. Borish, 165 Pa. Super. 308, 67 A.2d 823 (1949). A court should only open a default judgment when three conditions have been met, to wit, the petition must have been promptly filed, the default that led to the judgment 2 must be satisfactorily explained and the existence of a meritorious defense to the cause of action must be shown. vision service Plan of Pennsylvania v. Pennsylvania AFSCME Health and Welfare Fund, 331 Pa. Super. 217, 480 A.2d 322 (1984). The requisite elements to open a default judgment must be the same regardless of whether the substantive claim lies in contract or tort since any procedural differences between actions in assumpsit and trespass have been abolished. Wolfskill v. Ems, 350 Pa. Super. 223, 504 A.2d 326 (1986). A trial court cannot open a default judgment based on the "equities" of a case when a defendant has failed to establish all three of the criteria. Castings Condominium Association v. Klein, 444 Pa. Super. 68, 77, 663 A.2d 220, 225 (1995) A court in opening a default judgment has the power to prescribe the terms or conditions upon which it shall be opened. Thus, in order to protect the plaintiff, the court may impose as a condition the requirement that the defendant pay the costs incurred at the trial, or that portion of the plaintiff's claim admittedly due; or that security shall be entered in such amount and with such surety as the lower court may direct. P. L. E. Judgment 3 X82, citing Horning v. David, 137 Pa. Super. 252, 8 A.2d 729 (1939); Michigan Ammonia Works v. Elk, 47 Pa. Super. 294 (1911); and Britton v. Continental Mineral and Smelting Corporation, 366 Pa. 82, 76 A.2d 625 (1950). A. Petition to Reopen Was Not Promptly Filed The timeliness of the Petition to Open a Default Judgment is measured from the date of the entry of the default judgment. Alba v. Urology Associates of Kingston, 409 Pa. Super. 406, 598 A.2d 57 (1991). In this case, the default judgment was taken on Friday, October 1, 1999. The Petition to Open was not filed with the court until Wednesday, October 20, 1999, more than nineteen days after default judgment was taken. In McCoy v. Public Acceptance Corporation, 451 Pa. 495, 305 A.2d 698 (1973), the Supreme Court found that a period of two and one half weeks was not prompt. B. Default Cannot Be Reasonably Explained or Excused. 1. Rule 237.1 Ten Day Notice Properly Served. The Plaintiff followed Pa. R. C. P. 237.1 explicitly in giving Notice of a Praecipe to enter default judgment more than ten days before the default judgment was taken. The rule does not require the use of certified or 4 registered mail to serve the notice. The 1994 explanatory Comment to the Rule states: The ten-day notice may be mailed or delivered. Registered or certified mail is not required. The ten-day grace period for compliance runs from the date of delivery, if the notice is delivered. If the notice is mailed, the ten day notice period runs from the date of mailing and not from the date of receipt. If proof of the mailing date is important, it may be obtained from the post office by requesting present Post Office Form 3817, Certificate of Mailing, which will show the date, the name of the sender, and the addressee. In fact, Plaintiff's attorney provided the court with copies and even the original of the certificate of mailing so there is no doubt that the notice was mailed. Finally, actual receipt of the notice of praecipe for entry of default judgment is not necessary and mailing of notice to defendant's principal residence is sufficient. Central Penn National Bank v. Williams, 362 Pa. Superior 243, 523 A.2d 1166 (1987). 2. No Written Agreement for the Extension of Time to File Defendant's Answer Even if Plaintiff's counsel did receive the September 13, 1999 letter from Defendant's counsel, Defendant's counsel cannot argue that this letter constituted an 5 "agreement." Plaintiff's counsel never received such a request and could hardly be said to have agreed to it. Next, even if Plaintiff's counsel did receive the letter, her silence cannot be viewed as acceptance of the Defendants' counsel's request for an extension. See Reilly Associates v. Duryrea Borough Sewer Authority, 428 Pa. Super. 460, 463-463, 631 A.2d 621, 623-24 (1994) (letter from defendant's counsel to plaintiff's counsel requesting an extension of thirty days to file an answer does not constitute a enforceable agreement for extension when Plaintiff's counsel did not respond to the letter). See also Castings Condominium Association v. Klein, 444 Pa. Super. 68, 663 A.2d 220 (1995) (appellant's counsel sent a letter to appellee's attorney expressing his assumption that appellee's attorney would not seek a default judgment) and McEvilly v. Tucci, 239 Pa. Super. 474, 362 A.2d 259 (1976) (counsel for the defendants sent a letter to plaintiffs expressing his assumption that plaintiffs would not seek a default judgment). Furthermore, Pa. R.C.P 237.2 provides that after the ten-day notice is given, the agreement to extend must be in writing in substantially the same form as prescribed by Pa. R.C.P. 237.6. Since Plaintiff's counsel filed the Notice with the Prothonotary on September 14, 1999, the day after 6 Defendant's counsel allegedly mailed the letter to Plaintiff's counsel, the issue of whether Defendant's counsel mailed the letter is moot. Finally, in the context of the Rules of Civil Procedure, agreements to extend the time in which to plead are unnecessary prior to the giving of the ten-day notice. Since a default judgment cannot be entered until after the notice is given, there is no event to postpone prior to the notice and no definite time to extend. See Pa. R.C.P. 237.2, Explanatory Comment. C. A Meritorious Defense Has Not Been Raised by the Defendants to This Action Involving a Sale of a Puppy. A "meritorious defense" supporting a decision to reopen a default judgment is one that is sufficient to justify relief if proven. Southeastern Pennsylvania Transit Authority v. DiAntonio, 618 A.2d 1182 (Pa. Cmwlth. 1991). Defendants do not have to prove every element of their defense, however, they must set forth the defense in precise, specific and clear terms. Miller Block Company v. United States National Bank in Johnstown, 389 Pa. Super. 7 961, 567 A. 2d 695 (1989), allot. den., 525 Pa. 658, 582 A.2d 329 (1990). Based on their Petition to Open and their proposed Answer attached thereto, Defendants appear to be claiming contributory negligence and assumption of risk as defenses against the Plaintiff's contract/fraud action. Neither defense, however, is "meritorious" in this case. Plaintiff was not negligent and did not assume any risk in her dealings with the Defendants, relying on their promise that she would receive a refund. Defendants stated to the Plaintiff that they guaranteed the puppy for one year (Plaintiff's Complaint 113) and Defendant Alice Mountz executed a receipt stating that Plaintiff could return the poodle for a full refund within 96 hours after a veterinarian found an infectious or any congenital disorder with the puppy (Plaintiff's Complaint, Exhibit i). Furthermore, no negligent conduct on the part of Plaintiff or her husband could have caused the "congenital" problems diagnosed by their veterinarian, Michael McAllister, VMD, i.e. "poor muscle mass in front and rear legs" or a hairless patch on the left rear thigh "that would need a skin biopsy and culture to diagnose the problem" or "an undulating patella (kneecap) on the left rear leg"(Plaintiff's Complaint, Exhibit D). 8 Moreover, Defendants have not alleged that Plaintiff's checks to pay for the dog bounced which would have constituted a valid defense in a civil action sounding in assumpsit. Claiming that any problems that the Plaintiff and her husband had with the puppy were caused by them does not justify the Defendants' retaining the $848.00 paid to them by the Plaintiff as well as the puppy. Finally, this is a civil action on a "contract" -- the sale of a puppy and the fraudulent conduct of the Defendants involving that sale: assumption of risk and contributory negligence are not proper defenses in such a matter. Extent of Damages The nature of a default judgment is to impose responsibility upon a defendant who had an opportunity to defend the claim on its merits but has failed to do so. Kroynick v. Hertz, 443 Pa. 105, 277 A.2d 144, 147 (1971). Alleged "excessiveness" of damages of the amount of the default judgment was irrelevant to, and unsupported of, petition to strike the judgment, which petition would not be granted unless a fatal defect in the judgment appeared on the face of the record. Johnson v. Earl Schreib, Inc., 352 Pa. Super. 278, 507 A.2d 1228 (1986). Also, see Allegheny Hydro No. 1 v. American Line Builders, Inc., 722 9 A.2d 189 (Pa. Super. 1998), the court refused to open a $1,000,000 default judgment based on even though the Court felt that the defendant set forth a meritorious defense. Unfair Trade Practices and the Consumer Protection Law Plaintiff can meet her burden of proof that the Defendants violated provisions of the Unfair Trade Practices and Consumer Protection Law in their denial to issue a refund to her under the circumstances. Defendants are in the business of selling puppies. They admit in their proposed Answer that the Pennsylvania Department of Revenue licenses them for the collection of sales tax. Defendants' Answer, 437). They also admit that they are not licensed by the Department of Agriculture as a kennel. (Defendants' Answer, 438). Because they are not licensed as a kennel, Defendants' liability is not limited to those provided in 73 P.S. § 201-9.3 relating to dog purchaser protection. Defendant Alice Mountz admits signing the written guarantee prepared by Plaintiff and her husband pursuant to which they sought a refund of their purchase price of $848 after they returned the puppy. (Defendants' Proposed Answer 4 12.) Because Defendant Mountz failed to comply with the terms of this writing guarantee/warranty, 10 Defendant Mountz engaged in an "unfair or deceptive act or practice" as defined in 73 P.S. §201-2(4) (xiv), justifying the Plaintiff's claim for damages. Moreover, the Defendants have engaged in fraudulent conduct falling under the catchall provision of the Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201- 2(4)(xxi). This provision was designed to cover generally all unfair and deceptive acts or practices in the conduct of a trade or commerce. Hammer v. Nikol, 659 A.2d 617 Pa. Cwlth. 1995). At the time Plaintiff and her husband returned the puppy to the Defendants, they returned all of the paperwork that they had in their possession to Defendants in good faith, relying on the Defendant Mountz's representation that they would receive a full refund of the money paid for the puppy. Because of Defendants' outrageous conduct in retaining the puppy and not issuing the promised refund to the Plaintiff, Defendants engaged in an unfair and deceptive act in the conduct of their business as defined in 73 P.S. §201-2 (xiv) and (xxi). CONCLUSION Defendants have not even come close to meeting the requirements set forth in case law for this Honorable Court 11 to strike the default judgment entered against them: (1) the petition to open must have been promptly filed; (2) the default that led to the judgment must be satisfactorily explained; and (3) the existence of a meritorious defense to the cause of action must be shown. Moreover, Defendants engaged in deceptive and fraudulent behavior in this case, i.e. promising the Plaintiff orally and in writing that she would receive a refund of the purchase price of the teacup poodle puppy, then keeping the money, the puppy and all of the documentation - bill of sale, guarantee, the puppy's health record, etc. - making it extremely difficult for the Plaintiff to present her case. Moreover, the Plaintiff, a Maryland resident, has suffered substantial monetary damage from this drawn-out affair to recover the purchase price of a teacup poodle and deserves to be compensated. True justice would not be served by prolonging the litigation of this case. Respectfully submitted, Ka h n K. shaulis, Esquire counsel for the Plaintiff Date: January 19, 1999 cc: Paul Taneff, Esq. 12 CHRISTA MALONE, Plaintiff Vs. JACK A. SUNDERLAND AND ALICE R. MOUNTZ t/a A & J TOY POODLES, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-4601 CIVIL TERM CERTIFICATE OF SERVICE I hereby certify that I am serving on this day a copy of the foregoing document upon the person and in the manner indicated below, which services satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by personal serving a copy on: By first class mail prepaid: Paul Taneff, Esq. Taneff and Ricci 4219 Derry Street Harrisburg, PA 17111 (717) 564-5833 Dated: January 19, 2000 Ka hleen K. shaulis, Esq. Pa. Bar TD. No. 37445 44 South Hanover Street Carlisle, PA. 17013 (717) 243-6655 13 CHRISTA MALONE, Plaintiff V. JACK A. SUNDERLAND & ALICE R. MOUNTZ t/a A & J POODLES, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 99-4601 CIVIL TERM IN RE: TRANSCRIPT OF PROCEEDINGS Proceedings were held before the HONORABLE EDWARD E. GUIDO, J., Cumberland County Courthouse, Carlisle, Pennsylvania, Courtroom Number Five, January 5, 2000. APPEARANCES: KATHLEEN K. SHAULIS, ESQUIRE For - the Plaintiff PAUL TANEFF, ESQUIRE For - the Defendants a I N D E X E S WI PETITIONERS': ALICE MOUNTZ Direct Examination by Mr. Taneff 4 Cross-Examination by Ms. Shaulis 11 Redirect Examination by Mr. Taneff 13 Examination by the Court 19 Redirect Examination by Mr. Taneff 15 IDENTIFIED PETITIONERS': 1 - Letter Dated September 13, 1999 12 20 RESPONDENT'S: 1 - Certificate of Mailing 17 20 t 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 29 25 January 5, 2000 Carlisle, Pennsylvania (Whereupon, the following proceedings were held.) THE COURT: Good afternoon. We are here on the motion of the defendants to -- actually to vacate a default judgment. MR. TANEFF: That's correct, Your Honor. THE COURT: I would imagine the appropriate remedy you are asking for is to open the default. MR. TANEFF: To open. THE COURT: I mean -- am I being correct? MR. TANEFF: I believe you are right, Your Honor. THE COURT: You are not asking that it be stricken in that the judgment on its face is appropriate; is that correct? MR. TANEFF: That's correct. THE COURT: Okay. So this is a petition addressed to the equitable side of the court to open the default judgment. And having read the petition and read the answers, we have certain questions of fact that need to be addressed here today. So if you are prepared to proceed, Mr. Taneff, you may call your first witness. MR. TANEFF: I call Alice Mountz. Can she give 3 A 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 testimony right from here? THE COURT: Does she have a physical problem? MR. TANEFF: No, she does not. THE COURT: That's what we have the witness stand for. Now, as far as the merits for the defense, that's laid out in your answer. MR. TANEFF: I believe that it is, Your Honor. THE COURT: What I am interested in is the question of whether you received notice. You know, something in this case. She didn't get your request for an extension. They didn't get her notice so let's explore that. Whereupon, ALICE R. MOUNTZ, having been duly sworn, testified as follows: DIRECT EXAMINATION BY MR. TANEFF: Q Alice, for the record, would you tell the Court your full name, please. A Alice Renee Mountz. Q And do you own a business known as A & J Toy Poodles? A Yes, I do. Q Do you recall a complaint being filed against you on or about August 20 of 1999? A Yes, I do. 4 1 2 3 9 5 6 7 8 9 10 11 12 13 19 15 16 17 18 19 20 21 22 23 29 25 Q And do you recall who filed that complaint? A These people. 0 You are pointing to the plaintiffs? A Right. Q Do you recall their names? A Christine -- I am not sure how she pronounces her last name. Q Crystal Malone? A Yes. Q And do you recall when you received that complaint, and how it was served on you? A Are you talking about the package that was sent by their attorney? Q The original; that's correct. A There was -- I think a gray envelope -- Q Okay. A -- from their attorney. Q Okay. And do you remember when you might have received that? A Around the 1st of October. Q Let me go back. Do you recall that the complaint was filed on August 20? A Okay. Yes. Q Do you recall that? A Yes. 5 1 Q And that complaint would have been filed here at 2 the Cumbe rland County Courthouse? 3 A Right. 4 Q And opposing counsel, when that complaint was 5 filed, wo uld be required to serve it upon you. 6 A Right. 7 Q And according to the pleadings, it was filed by 8 first class mail. Do you recall when you might have received 9 that origi nal complaint? 10 A I don't really recall the date, so I am not 11 gonna -- 12 Q Okay. After -- but you do recall receiving the 13 complaint? 14 A Yes. 15 Q After you received that complaint, do you remember 16 calling my office? 17 A The same day. 18 Q Okay. And we arranged to meet -- 19 A Yes. 1 20 Q -- to discuss the complaint? 21 A Right. 22 Q Okay. And do you recall when that meeting was) 23 A Within a day or two from when the papers were in 24 the mail to me from her. 25 Q Okay. Do you recall that we met on September 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 13th? A Yes. Q So -- A At your office. Q So it was more than a few days after the complaint was served? A Right. Q Okay. And at that meeting, what did we discuss? A We discussed all of the questions that were there, and you were going to write and ask for a continuance so that we could sit down and spend more time going through them, because there were a lot of questions. Q Okay. And when you say questions, you mean the various paragraphs in the complaint? A Right. Q And do you recall -- I will retract the question. Do you know whether or not my office did send a letter to opposing counsel asking for some time, additional time, to file a full answer or response to that complaint? A Yes, you did. Q Okay. MS. SHAULIS: Objection. THE COURT: Overruled. MR. TANEFF: And do you recall on or about what date that letter may have been sent to opposing counsel? 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE WITNESS: No, I don't. I am terrible with dates. MR. TANEFF: All right. If I showed you a document, might it refresh your memory? THE WITNESS: It could. MR. TANEFF: May I approach the witness, Your Honor? THE COURT: Certainly. MR. TANEFF: I would like to show you a letter dated September 13 from my office to Miss Shualis. Would you take a moment and just read through it quickly, and when your memory is refreshed, let me know. MS. SHAULIS: Can I renew my objection? THE COURT: On what basis? MS. SHAULIS: On the basis that how would the witness know that that letter was mailed? She knows that the letter is there but not mailed. So how could she testify it was mailed? THE COURT: You can handle that in your cross-examination of her. Ask her if she knew that. MS. SHAULIS: Thank you. THE COURT: She answered that she did. BY MR. TANEFF: Q Is your memory refreshed now? A Yes. 8 1 2 3 9 5 6 7 8 9 10 11 12 13 19 15 16 17 18 19 20 21 22 23 29 25 Q Do you recall whether or not a letter was sent to opposing counsel asking for a continuance? A Yes. Q And the date of that letter? A October 15th. Q I will show you the letter again. A I am really bad with dates, period. It was sent the 13th of September. Q Thank you. THE COURT: So we have a record in this case, would you want to mark that as Petitioner's Exhibit Number 1? MR. TANEFF: I don't have additional copies of these. THE COURT: Well, we can make a copy. (Whereupon, Petitioner's Exhibit No. 1 was marked for identification.) BY MR. TANEFF: Q Now, after September 13, did you have occasion to communicate with my office? A Yes. Q And do you recall when that might have been? A Early October. Q Okay. And what was the purpose of that communication? 9 1 jy 7 v, yc over the pacieage of information and answers that they wanted answered to be sent back to their attorney. Q Do you also recall sending to my office a little 9 notification that you received from the Cumberland County 5 Prothunotary's office? 6 A Yeah, it was like, a post card, and I didn't 7 understand it. 8 Q And what did you do with that when you received 9 it? 10 A 1 -- my mail comes late in the afternoon. So the 11 very next morning 1 took it to the post office, and mailed it 12 to you, and asked you what it meant. 13 Q Okay. And do you recall my calling you on or 19 about October 5th? 15 A Yes, you did. 16 Q And in that telephone conversation, do you recall 17 my explaining to you that opposing counsel had taken a default 18 judgment against you? 19 A Right. 20 Q And that it was necessary for us to take some 21 i.mmedi.ite measures? 22 A Yes, you dial. 23 Q okay. And do you recall my asking you, when you 29 received LhaL [lOLitiCaLion of default, whether you had 25 received any prior notices of their intention to take a 10 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 default judgment? 2 A You asked me but I hadn't received any. Q So you had received no notification -- A No never. Q -- from anyone relative to that default judgment, until you received the notice of default judgment; is that correct? A Right. Right. Q Did we file a formal answer to the plaintiff's complaint in this particular matter? A Yes, we did. Q And do you recall when that was filed? A In October. Q And do you remember whether that was filed before or after we received the default judgment? A It was filed, I believe, before. Q Do you remember the number of allegations that was contained in the original complaint? Was it voluminous? A I have never seen anything like it. MR. TANEFF: I have no further questions. THE COURT: You may cross examine. CROSS-EXAMINATION BY MS. SHAULIS: Q Mrs. Mounts -- A Yes. 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q -- do you receive your mail at 899 Emily Drive, Mechanicsburg, Pennsylvania? A Yes, ma'am, I do. Q And that is where you reside? A Yes, I do. Q Okay. And you received the complaint that I filed on behalf of the Malones -- A If you are talking about the package. Q -- in August 20th -- A Yes. Q -- it was mailed. A Yes, I did. Q You received that at 899 Emily Drive? A Yes, I did. Q Okay. And you haven't moved -- A No, I have not. Q -- between now and August and right now? A No, I have been there for 11 years. Q Okay. Let me get back to this letter that was allegedly sent to me by counsel on September 14th -- A Right. Q -- requesting an extension of time. A Right. Q Did you see the letter? A No. 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Did you sign -- did you mail the letter yourself? A Did I mail the letter? Q Yes. A No, I did not. Q So you really don't know if it was mailed or not, do you? A No. MS. SHAULIS: No further questions. THE COURT: Cross -- redirect. I'm sorry. REDIRECT EXAMINATION BY MR. TANEFF: Q Do you recall in our conversations as we were preparing to address that 44-count complaint for the sale of a bad puppy, an alleged bad puppy, our discussing the timing on or about September 13th and the necessity of my having to contact opposing counsel to get a continuance because of the time it would take to prepare a proper response to that complaint? A Right. I came to your office for that. MR. TANEFF: I have no further questions. MS. SHAULIS: Nothing further on that issue. THE COURT: I have a couple. THE WITNESS: Okay. 13 1 2 3 9 5 6 7 8 9 10 11 12 13 19 15 16 17 18 19 20 21 22 23 24 25 EXAMINATION BY THE COURT: Q Petitioner's Exhibit Number 1, which is the letter from Mr. Taneff to Miss Shaulis requesting additional time to file the answer -- A Right. Q -- have you ever seen that letter before today's date? A I don't think I have, no. Q Okay. Now, when you were in Mr. Taneff's office on the 13th of -- or the 3rd -- A Uh-huh. Q -- on the 13th of September? A Right. Q The discussion was that Mr. Taneff was going to request more time to file the answer because you had to meet again? A There was a big package of papers. Q Um-hum. A And we needed to sit down and go through one by one and answer them. And the time wasn't -- there wasn't enough time to do that. And he had to schedule, like, two hours to do that, and he did it as soon as possible. Q When was that? When did you sit down with him again and go through that? 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I don't remember the date. I am terrible with names and dates so I don't want to -- Q Well, can you give me a guesstimate? Was it a week later? Was it tw o weeks later? Was it a month later? A No, it was within a few days. Q Okay. And you are sayin g that the answer was actually filed before you got notice that judgment had been entered? A Right. I didn't understand what the post card meant, because I had already gone over all of the questions and answered it. So I took it over to the post office and sent it to him. Q But you didn't -- either you or Mr. Sunderland signed the answer whenever it was filed; is that correct? A I think we did sign it. THE COURT: That's all I have. Any follow-ups with regard to those questions, Mr. Taneff? REDIRECT EXAMINATION BY MR. TANEFF: Q On the answer that was filed, and I know it sounds like you were just a bit confused, let's go back to September 13th, the questions that you keep referring to -- A Uh-huh. Q -- do you recall our going over both the complaint) and other matters related to a similar case that was filed 15 1( 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 against you by opposing counsel with a different plaintiff? 2 A Yes, we did. 3 Q But on September 13th, we reviewed in detail each 4 and every allegation of the Malone complaint. 5 A Right. Q And I asked you specifically whether or not those -- each allegation was accurate or not? A Right. Q And you then provided me with appropriate responses to each of those allegations? A Right. Q Do you remember on the answer that we filed, if you don't remember, just tell me so -- on the answer that we filed on October 1st or mailed from my office on October 1st -- A Right. Q -- do you remember whether I signed a verification on your behalf? A Yes, you did. Q And then did I subsequently obtain your verifications from you and Mr. Sunderland at a later date? A Right. Q And filed those with the Court? A Right. Q And the reason I signed the verification was 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 because we were having difficulty getting together -- A Right. Q -- for those verifications? A Right. MR. TANEFF: I have no further questions, Your Honor. MS. SHAULIS: Nothing further. THE COURT: You may step down. MR. TANEFF: Your Honor, I have Mr. Sunderland here, but I believe that his testimony will, for all practical purposes, be identical to Miss Mountz. THE COURT: It's your case, Mr. Taneff. You put on what you feel is relevant. MR. TANEFF: I think we are going to rest on this I motion. THE COURT: Okay. Do you wish to present I evidence? MS. SHAULIS: Well, Your Honor, I would just like to point out that included in the answer to the motion, that I did provide the original mailing, certificates of mailing, that were sent to -- or accompanied or -- I guess -- well, evidence the mailing was made to Jack Sunderland and Alice Mountz at 899 Emily Drive of the 10-day notice that's required pursuant to the rules. THE COURT: Do you want to mark that as 17 1 2 3 4 5 6 7 8 9 10 11 12 13 19 15 16 17 18 19 20 21 22 23 29 25 Respondent's Exhibit 1? MS. SHAULIS: I would, Your Honor. I only have one copy and as I said -- THE COURT: We can make copies. MS. SHAULIS: -- as I said, the original is with the answer that was filed with the Court, so you probably have it in the file. THE COURT: What troubles me, from a factual standpoint, and I am in a position where counsel may need to be witnesses, unless Mr. Taneff's prepared to stipulate that you mailed the notice of default judgment, then I will need you to testify that you did so. And unless you are prepared to stipulate that he mailed the letter requesting the extension, I am going to need him to testify that lie did so. MS. SHAULIS: But wouldn't the certificate of mailing demonstrate that? It's evidence that I mailed the certificates or the notices. THE COURT: It's only evidence that you mailed them, if you testify that that's what they represent. Or if you bring in your secretary to testify that that's what they represent. MS. SHAULIS: Right. THE COURT: Likewise, Mr. Taneff, the letter to Miss Shaulis is evidence if you testified that you mailed that 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 or you bring in your secretary to testified you mailed it. MR. TANEFF: Your Honor, I understand that. I guess the question here is, we are dealing with a pretty severe sanction, that puts someone out of Court. If we had been -- if we had simply sat here and attempted to vacate, if you will, or open a judgment that was entered by default and had taken no measures -- THE COURT: We will talk about the argument after we get the record complete. MR. TANEFF: I understand. THE COURT: Do you understand where I am coming from? MS. SHAULIS: Yes, I do. MR. TANEFF: Yes, I do. THE COURT: On the record right now. So I either need testimony or stipulations. MS. SHAULIS: Well, I could testify that I mailed it because I have no secretary. THE COURT: Well, then who is going to examine you? MS. SHAULIS: I am not quite sure, Your Honor. MR. TANEFF: Your Honor, we accomplish the same thing by stipulating both ways. THE COURT: I agree. You are prepared to stipulate? 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. TANEFF: I am prepared to stipulate -- MS. SHAULIS: I am not. MR. TANEFF: -- that she did the mailing, as long as she is willing to stipulate to the fact that I placed -- my office placed this letter in the mail on the 13th. THE COURT: Okay. MS. SHAULIS: I am prepared to do that, Your Honor. THE COURT: You say you are not? MS. SHAULIS: I am. I will right now. THE COURT: All right. Then let's mark exhibit 1 for the defendant being the letter addressed to Miss Shaulis, and exhibit number 1 for the Respondent/Plaintiff as being the certificates of mailing of default judgment. MS. SHAULIS: Right. And the notice. (Whereupon, Respondent's Exhibit No. 1 was marked for identification.) THE COURT: And they are both admitted. MS. SHAULIS: Right. (Whereupon, Respondent's and Petitioners' Exhibit Nos. 1 were both admitted.) THE COURT: Are you prepared to stipulate, Mr. Taneff, that she would testify that she didn't get your letter or do you want to her to testify to that? 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. TANEFF: I will stipulate to that, Your Honor. THE COURT: Now, any other evidence before we close the record? MS. SHAULIS: Meritorious defense, Your Honor? THE COURT: Well, the answer speaks for itself in that regard, it either is or it isn't. MS. SHAULIS: Okay. THE COURT: Okay. MS. SHAULIS: Nothing further. THE COURT: Anything further? MS. SHAULIS: Nothing further, Your Honor. THE COURT: Okay. Argument. Do you want argument on the record or off the record? MR. TANEFF: We will do it off the record. MS. SHAULIS: Off the record. (Whereupon, argument was held off the record.) THE COURT: How much time do you need to submit briefs? MR. TANEFF: 30 days. MS. SHAULIS: I was thinking 10, 15 days. I am not as busy as Mr. Taneff. THE COURT: I won't get to look at this until the end of the month anyhow. Why don't we submit briefs -- I will give you 20 days. Today is the 5th. Enter the following order: 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 AND NOW, today's date, parties are directed to submit briefs in support of their respective positions by close of business on January 25, 2000. (Whereupon, the hearing concluded.) 22 r? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFICATE I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause and that this is a correct transcript of the same. tl1hAA1.c, orraine K. T utman, RPR The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. OlliN Date Edward E. Guido, J. Ninth Judicial District 23 w September 13, 1999 KATHLEEN K SHAULIS ESQ 44 SOUTH HANOVER STREET CARLISLE PA 17013 RE: MALONE V. SUNDERLAND ET AL. NO 999-4601 CUMBERLAND COUNTY Dear Ms. Shaulis: When you called me to determine whether we would accept service of this suit on behalf of our client, A&J Toy Poodles, I was not authorized to do so at that time, had no knowledge of the District Justice proceeding and that is why I asked you to serve the Complaint directly upon the Defendants. This letter will acknowledge that we met with our client to day to .review the Complaint and we will be preparing an Answer for filing. However, in view of my current calendar, I would respectfully request a reasonable extension of time to file an Answer. Unless I hear from you to the contrary, I will assume that if we are filed no later than October 15, 1999, you will not have a problem, otherwise, we will file a Motion with the Court requesting an enlargement of time necessary to complete our initial investigation and prepare a responsive pleading. In the meantime, should you have any questions concerning this matter, please don't hesitate to call me. Very truly yours, Paul Taneff PT/lmp PETITIONER'S EXHIBIT I 1.5.00 KILT AI Oro of a,ni m/m It1J .a JW.1 t1 9}7 • >? ''vi -?`? `v` ?1 v o )1 mc= c.e v - i ?O Io i V I .. J 17 SS" S Form 3817. Mar. 1989 "J?lA_L?IJIVIUE ltHIIPICATE OF MAI MAV RE USEII P(1(I 110fdf5fl t ArIU IrifE Hlin110111.i -LiA,i" 1a ' PRO ?IDE r.)R INSURANCE _ . "OSTMAS1EN AK.. l rrvw[ 1 L / ro R NVWh ctH 111' KATE OF MAILING _ EROVIuDtE DOIAE TIC A ND INII UJAnONAL MAII. ES OH INSURANCE-POSIb1A51 LII on?V?a'l? 1 U M8 jq :. - -- HIno'iey - , >s Lit _ ? ? 1 GJI LlC t. ? Y1 V ?'. mQ7 i wmo? ? ': PS Form 381), MRr. 1989 I, / . , CHRISTA bIALONE, Plaintiff Vs. JACK A. SUNDERLAND AND ALICE R. MOUNTZ t/a A i J TOY POODLES, Defendants IN THE COURT OF COMMON PLEAS OF C@49ERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAN NO. 99-4601 CIVIL TERM 14DTIC11 OF PUSCIM rOa Xww or JUD4M1rP BY Dsr=T To: JACK A. 5IAR1RIILRRD IMPORTANT NoTICR YOU ARE IN DEFAULT BECAUSE YOU FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TARE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL. HELPS CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 TELEPHONES (717( 249-3166 ki een K. Shaulis, Esq. Atto ey for Plaintiff 44 South Hanover Street Carlisle, PA 17013 (717( 243-6655 I.D. No. 37445 Date of Notice: SsPtN&§s 14, 1099 CHRISTA MALONE, Plaintiff Vs. JACK A. SUNDERLAND AND ALICE R. MOUNTZ t/a A t J TOY POODLES, Defendants IN THE COURT OF C *10N PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-4601 CIVIL TERM x0mcs OF PAA=CiPi Pea BMW OF .7t GWW BY DEIAU= To: ALICt R. WOONTs Date of Notice: Sop' 1- - 14, 1999 Ilmna491NT UOTICL YOU ARE IN DEFAULT BECAUSE YOU FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE,, -GO.-TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP: CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 TELEPHONE: (717) 249-3166 Ka aen H. Shaulis, Eaq. Att raey for Plaintiff 44 South Hanover Street Carlisle, PA 17013 (717) 243-6655 I.D. No. 37445 1 CHRISTA MALONE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. a JACK A. SUNDERLAND & ALICE R. MOUNTZ t/a A & J POODLES, Defendants 99-4601 CIVIL TERM IN RE: TRANSCRIPT OF PROCEEDINGS Proceedings were held before the ONORABLE EDWARD E. GUIDO, Cumberland County Courthouse, Carlisle, Pennsylvania, Courtroom Number Five, January 5, 2000. s APPEARANCES: KATHLEEN K. SHAULIS, ESQUIRE For - the Plaintiff PAUL TANEFF, ESQUIRE For - the Defendants I N D E X E S SES PETITIONERS': ALICE MOUNTZ Direct Examination by Mr. Taneff q Cross-Examination by Ms. Shaulis 11 Redirect Examination by Mr. Taneff 13 Examination by the Court 14 Redirect Examination by Mr. Taneff 15 TO EXHIBITS IDENTIFIED ADMIT PETITIONERS': 1 - Letter Dated September 13, 1999 12 20 RESPONDENT'S: 1 - Certificate of Mailing 17 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 January 5, 2000 Carlisle, Pennsylvania (Whereupon, the following proceedings were held.) THE COURT: Good afternoon. We are here on the motion of the defendants to -- actually to vacate a default judgment. MR. TANEFF: That's correct, Your Honor. THE COURT: I would imagine the appropriate remedy you are asking for is to open the default. MR. TANEFF: To open. THE COURT: I mean -- am I being correct? MR. TANEFF: I believe you are right, Your Honor. THE COURT: You are not asking that it be stricken in that the judgment on its face is appropriate; is that correct? MR. TANEFF: That's correct. THE COURT: Okay. So this is a petition addressed to the equitable side of the court to open the default judgment. And having read the petition and read the answers, we have certain questions of fact that need to be addressed here today. So if you are prepared to proceed, Mr. Taneff, you may call your first witness. MR. TANEFF: I call Alice Mountz. Can she give 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 testimony right from here? THE COURT: Does she have a physical problem? MR. TANEFF: No, she does not. THE COURT: That's what we have the witness stand for. Now, as far as the merits for the defense, that's laid out in your answer. MR. TANEFF: I believe that it is, Your Honor. THE COURT: What I am interested in is the question of whether you received notice. You know, something in this case. She didn't get your request for an extension. They didn't get her notice so let's explore that. Whereupon, ALICE R. MOUNTZ, having been duly sworn, testified as follows: DIRECT EXAMINATION Q Alice, for the record, would you tell the Court your full name, please. I A Alice Renee Mountz. Q And do you own a business known as A & J Toy Poodles? A Yes, I do. Q Do you recall a complaint being filed against you on or about August 20 of 1999? A Yes, I do. 4 1 Q And do you recall who filed that complaint? 2 A These people. 3 Q You are pointing to the plaintiffs? 4 A Right. 5 Q Do you recall their names? 6 A Christine -- I am not sure how she pronounces her 7 last name. 8 Q Crystal Malone? 9 A Yes. 10 Q And do you recall when you received that 11 complaint, and how it was served on you? 12 A Are you talking about the package that was sent by 13 their atto rney? 14 Q The original; that's correct. 15 A There was -- I think a gray envelope -- 16 Q Okay. 17 A -- from their attorney. 18 Q Okay. And do you remember when you might have 19 received t hat? 20 A Around the 1st of October. 21 Q Let me go back. Do you recall that the complaint 22 was filed on August 20? 23 A Okay. Yes. 24 Q Do you recall that? 25 A Yes. 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And that complaint would have been filed here at the Cumberland County Courthouse? A Right. Q And opposing counsel, when that complaint was filed, would be required to serve it upon you. A Right. Q And according to the pleadings, it was filed by first class mail. Do you recall when you might have received that original complaint? A I don't really recall the date, so I am not gonna -- Q Okay. After -- but you do recall receiving the complaint? A Yes. Q After you received that complaint, do you remember calling my office? A The same day. Q Okay. And we arranged to meet -- A Yes. Q -- to discuss the complaint? A Right. Q Okay. And do you recall when that meeting was? A Within a day or two from when the papers were in the mail to me from her. Q Okay. Do you recall that we met on September 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 13th? A Yes. Q So -- A At your office. Q So it was more than a few days after the complaint was served? A Right. Q Okay. And at that meeting, what did we discuss? A We discussed all of the questions that were there, and you were going to write and ask for a continuance so that we could sit down and spend more time going through them, because there were a lot of questions. Q Okay. And when you say questions, you mean the various paragraphs in the complaint? A Right. Q And do you recall -- I will retract the question. Do you know whether or not my office did send a letter to opposing counsel asking for some time, additional time, to file a full answer or response to that complaint? A Yes, you did. Q Okay. MS. SHAULIS: Objection. THE COURT: Overruled. MR. TANEFF: And do you recall on or about what date that letter may have been sent to opposing counsel? 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE WITNESS: No, I don't. I am terrible with dates. MR. TANEFF: All right. If I showed you a document, might it refresh your memory? THE WITNESS: It could. MR. TANEFF: May I approach the witness, Your Honor? THE COURT: Certainly. MR. TANEFF: I would like to show you a letter dated September 13 from my office to Miss Shualis. Would you take a moment and just read through it quickly, and when your memory is refreshed, let me know. MS. SHAULIS: Can I renew my objection? THE COURT: On what basis? MS. SHAULIS: On the basis that how would the witness know that that letter was mailed? She knows that the letter is there but not mailed. So how could she testify it was mailed? THE COURT: You can handle that in your cross-examination of her. Ask her if she knew that. MS. SHAULIS: Thank you. THE COURT: She answered that she did. BY MR. TANEFF: Q Is your memory refreshed now? A Yes. 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Do you recall whether or not a letter was sent to opposing counsel asking for a continuance? A Yes. Q And the date of that letter? A October 15th. Q I will show you the letter again. A I am really bad with dates, period. It was sent the 13th of September. Q Thank you. THE COURT: So we have a record in this case, would you want to mark that as Petitioner's Exhibit Number 1? MR. TANEFF: I don't have additional copies of these. THE COURT: Well, we can make a copy. (Whereupon, Petitioner's Exhibit No. 1 was marked for identification.) Q Now, after September 13, did you have occasion to communicate with my office? A Yes. Q And do you recall when that might have been? A Early October. Q Okay. And what was the purpose of that communication? 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A To go over the package of information and answers that they wanted answered to be sent back to their attorney. Q Do you also recall sending to my office a little notification that you received from the Cumberland County Prothonotary's Office? A Yeah, it was, like, a post card, and I didn't understand it. Q And what did you do with that when you received it? A I -- my mail comes late in the afternoon. So the very next morning I took it to the post office, and mailed it to you, and asked you what it meant. Q Okay. And do you recall my calling you on or about October 5th? A Yes, you did. Q And in that telephone conversation, do you recall my explaining to you that opposing counsel had taken a default judgment against you? A Right. Q And that it was necessary for us to take some immediate measures? A Yes, you did. Q Okay. And do you recall my asking you, when you received that notification of default, whether you had received any prior notices of their intention to take a 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 default judgment? A You asked me but I hadn't received any. Q So you had received no notification -- A No never. Q -- from anyone relative to that default judgment, until you received the notice of default judgment; is that correct? A Right. Right. Q Did we file a formal answer to the plaintiff's complaint in this particular matter? A Yes, we did. Q And do you recall when that was filed? A In October. Q And do you remember whether that was filed before or after we received the default judgment? A It was filed, I believe, before. Q Do you remember the number of allegations that was contained in the original complaint? Was it voluminous? A I have never seen anything like it. MR. TANEFF: I have no further questions. THE COURT: You may cross examine. CROSS-EXAMINATION BY MS. SHAULIS: Q Mrs. Mounts -- A Yes. 11 1 4 -- do you receive Your mail at 899 Emily Drive 2 , Mechanicsburg, Pennsylvania? 3 A Yes, ma'am, I do. 9 4 And that is where you reside? S A Yes, I do. 6 4 Okay. And you received the complaint that I filed 7 on behalf of the Malones -- 8 A If you are talking about the package. 9 4 -- in August 20th -- 10 A Yes. 11 Q -- it was mailed. 12 A Yes, I did. 13 Q You received that at 899 Emily Drive? 19 A Yes, I did. 15 Q Okay. And you haven't moved -- 16 A No, I have not. 17 Q -- between now and August and right now? 18 A No, I have been there for 11 years. 19 4 Okay. Let me get back to this letter that w 20 as allegedly sent to me by counsel on September 19th -- 21 A Right. 22 Q -- requesting an extension of time. 23 A Right. 29 4 Did you see the letter? 25 A No. 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Did you sign -- did you mail the letter yourself? A Did I mail the letter? Q Yes. A No, I did not. Q So you really don't know if it was mailed or not, do you? A No. MS. SHAULIS: No further questions. THE COURT: Cross -- redirect. I'm sorry. REDIRECT EXAMINATION BY MR. TANEFF: Q Do you recall in our conversations as we were preparing to address that 44-count complaint for the sale of a bad puppy, an alleged bad puppy, our discussing the timing on or about September 13th and the necessity of my having to contact opposing counsel to get a continuance because of the time it would take to prepare a proper response to that complaint? A Right. I came to your office for that. MR. TANEFF: I have no further questions. MS. SHAULIS: Nothing further on that issue. THE COURT: I have a couple. THE WITNESS: Okay. 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 EXAMINATION BY THE COURT: Q Petitioner's Exhibit Number 1, which is the letter from Mr. Taneff to Miss Shaulis requesting additional time to file the answer -- A Right. Q -- have you ever seen that letter before today's date? A I don't think I have, no. Q Okay. Now, when you were in Mr. Taneff's Office on the 13th of -- or the 3rd -- A Uh-huh. Q -- on the 13th of September? A Right. Q The discussion was that Mr. Taneff was going to request more time to file the answer because you had to meet again? A There was a big package of papers. Q Um-hum. A And we needed to sit down and go through one by one and answer them. And the time wasn't -- there wasn't enough time to do that. And he had to schedule, like, two hours to do that, and he did it as soon as possible. Q When was that? When did you sit down with him again and go through that? E 14 ¦ 1 2 3 9 5 6 7 8 9 10 11 12 13 19 15 16 17 18 19 20 21 22 23 29 25 A I don't remember the date. I am terrible with names and dates so I don't want to -- Q Well, can you give me a guesstimate? Was it a week later? Was it two weeks later? Was it a month later? A No, it was within a few days. Q Okay. And you are saying that the answer was actually filed before you got notice that judgment had been entered? A Right. I didn't understand what the post card meant, because I had already gone over all of the questions and answered it. So I took it over to the post office and sent it to him. Q But you didn't -- either you or Mr. Sunderland signed the answer whenever it was filed; is that correct? A I think we did sign it. THE COURT: That's all I have. Any follow-ups with regard to those questions, Mr. Taneff? REDIRECT EXAMINATION BY MR. TANEFF: Q On the answer that was filed, and I know it sounds like you were just a bit confused, let's go back to September 13th, the questions that you keep referring to -- A Uh-huh. Q -- do you recall our going over both the complaint and other matters related to a similar case that was filed 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 against you by opposing counsel with a different plaintiff? A Yes, we did. Q But on September 13th, we reviewed in detail each and every allegation of the Malone complaint. A Right. Q And I asked you specifically whether or not those -- each allegation was accurate or not? A Right. Q And you then provided me with appropriate responses to each of those allegations? A Right. Q Do you remember on the answer that we filed, if you don't remember, just tell me so -- on the answer that we filed on October 1st or mailed from my office on October 1st -- A Right. Q -- do you remember whether I signed a verification on your behalf? A Yes, you did. Q And then did I subsequently obtain your verifications from you and Mr. Sunderland at a later date? A Right. Q And filed those with the Court? A Right. Q And the reason I signed the verification was 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 because we were having difficulty getting together -- A Right. Q -- for those verifications? A Right. MR. TANEFF: I have no further questions, Your Honor. MS. SHAULIS: Nothing further. THE COURT: You may step down. MR. TANEFF: Your Honor, I have Mr. Sunderland here, but I believe that his testimony will, for all practical purposes, be identical to Miss Mountz. THE COURT: It's your case, Mr. Taneff. You put on what you feel is relevant. MR. TANEFF: I think we are going to rest on this I motion. THE COURT: Okay. Do you wish to present I evidence? MS. SHAULIS: Well, Your Honor, I would just like to point out that included in the answer to the motion, that I did provide the original mailing, certificates of mailing, that were sent to -- or accompanied or -- I guess -- well, evidence the mailing was made to Jack Sunderland and Alice Mountz at 899 Emily Drive of the 10-day notice that's required pursuant to the rules. THE COURT: Do you want to mark that as 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Respondent's Exhibit 1? MS. SHAULIS: I would, Your Honor. I only have one copy and as I said -- THE COURT: We can make copies. MS. SHAULIS: -- as I said, the original is with the answer that was filed with the Court, so you probably have it in the file. THE COURT: What troubles me, from a factual standpoint, and I am in a position where counsel may need to be witnesses, unless Mr. Taneff's prepared to stipulate that you mailed the notice of default judgment, then I will need you to testify that you did so. And unless you are prepared to stipulate that he mailed the letter requesting the extension, I am going to need him to testify that he did so. MS. SHAULIS: But wouldn't the certificate of mailing demonstrate that? It's evidence that I mailed the certificates or the notices. THE COURT: It's only evidence that you mailed them, if you testify that that's what they represent. Or if you bring in your secretary to testify that that's what they represent. MS. SHAULIS: Right. THE COURT: Likewise, Mr. Taneff, the letter to Miss Shaulis is evidence if you testified that you mailed that 18 1 2 3 9 5 6 7 8 9 10 11 12 13 19 15 16 17 18 19 20 21 22 23 29 25 or you bring in your secretary to testified you mailed it. MR. TANEFF: Your Honor, I understand that. I guess the question here is, we are dealing with a pretty severe sanction, that puts someone out of Court. If we had been -- if we had simply sat here and attempted to vacate, if you will, or open a judgment that was entered by default and had taken no measures -- THE COURT: We will talk about the argument after we get the record complete. MR. TANEFF: I understand. THE COURT: Do you understand where I am coming from? MS. SHAULIS: Yes, I do. MR. TANEFF: Yes, I do. THE COURT: On the record right now. So I either need testimony or stipulations. MS. SHAULIS: Well, I could testify that I mailed it because I have no secretary. THE COURT: Well, then who is going to examine you? MS. SHAULIS: I am not quite sure, Your Honor. MR. TANEFF: Your Honor, we accomplish the same thing by stipulating both ways. THE COURT: I agree. You are prepared to stipulate? 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. TANEFF: I am prepared to stipulate -- MS. SHAULIS: I am not. MR. TANEFF: -- that she did the mailing, as long as she is willing to stipulate to the fact that I placed -- my office placed this letter in the mail on the 13th. THE COURT: Okay. MS. SHAULIS: I am prepared to do that, THE COURT: You say you are not? MS. SHAULIS: I am. I will right now. THE COURT: All right. Then let's mark exhibit 1 for the defendant being the letter addressed to Miss Shaulis, and exhibit number 1 for the Respondent/Plaintiff as being the certificates of mailing of default judgment. MS. SHAULIS: Right. And the notice. (Whereupon, Respondent's Exhibit No. 1 was marked for identification.) THE COURT: And they are both admitted. MS. SHAULIS: Right. (Whereupon, Respondent's and Petitioners' Exhibit Nos. 1 were both admitted.) THE COURT: Are you prepared to stipulate, Mr. Taneff, that she would testify that she didn't get your letter or do you want to her to testify to that? 20 1 2 3 4 c 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. TANEFF: I will stipulate to that, Your Honor. THE COURT: Now, any other evidence before we close the record? MS. SHAULIS: Meritorious defense, Your Honor? THE COURT: Well, the answer speaks for itself in that regard, it either is or it isn't. MS. SHAULIS: Okay. THE COURT: Okay. MS. SHAULIS: Nothing further. THE COURT: Anything further? MS. SHAULIS: Nothing further, Your Honor. THE COURT: Okay. Argument. Do you want argument on the record or off the record? MR. TANEFF: We will do it off the record. MS. SHAULIS: Off the record. (Whereupon, argument was held off the record.) THE COURT: How much time do you need to submit briefs? MR. TANEFF: 30 days. MS. SHAULIS: I was thinking 10, 15 days. I am not as busy as Mr. Taneff. THE COURT: I won't get to look at this until the end of the month anyhow. Why don't we submit briefs -- I will give you 20 days. Today is the 5th. Enter the following order: 21 1 2 3 9 5 6 7 8 9 10 11 12 13 19 15 16 17 18 19 20 21 22 23 29 25 AND NOW, today's date, parties are directed to submit briefs in support of their respective positions by close of business on January 25, 2000. (Whereupon, the hearing concluded.) 22 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 16 19 20 21 22 23 24 25 CERTIFICATE I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause and that this is a correct transcript of the same. r oMau.4. orraine K. T utman, RPR The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. Ali Date Edward E. Guido, J. Ninth Judicial District 23 CHRISTA MALONE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. JACK A. SUNDERLAND NO. 99-4601 CIVIL TERM & ALICE R. MOUNTZ T/A/ A& J TOY POODLES CIVIL ACTION -LAW AND NOW, this (; day of DECEMBER, 1999, the hearing scheduled for December 13, 1999, has been rescheduled for Wednesday, January 5, 2000, at 1:30 p.m. in Courtroom # 5. By the Court, Edward E. Guido, J. Kathleen K. Shaulis, Esquire For the Plaintiff _ Paul Taneff, Esquire For the Defendant ?I99- A-6' Ad Gr: . HEMNs' L,-AN'AA Gregory J. Ricci Paul TaneB' November 11, 1999 VIA FAX TRANSMISSION TO (717) 240-6462 AND FIRST CLASS MAIL HONORABLE EDWARD E GUIDO JR CUMBERLAND COUNTY COURT OF COMMON PLEAS 1 COURTHOUSE SQUARE CARLISLE PA 17013-3387 RE: MALONE V. SUNDERLAND ET AL NO. 99-4601 CUMBERLAND COUNTY Dear Judge Guido: 4219 Derry Sheet Harrisburg, PA 17111 Tel: (717) 564-5833 Fax: (717) 5644l683 The referenced matter is scheduled to be heard before you on. December copy of your Order & is enclosed for your Vacate lDefault Judgme is A.M. reference. The week of December 13 is Dauphin County's Arbitration week. We have a case which is scheduled for arbitration on December 13, 1999. This case was listed for arbitration some time ago, and because of this conflict we are requesting that the matter scheduled before you be continued. I have spoken this day with opposing counsel and she is agreeable to continuing the hearing and agrees to a rather generous continuance of this matter to permit the parties some opportunity to settle without litigation. Thus, we would respectfully request that you generally continue this matter without a date certain or reschedule this hearing for a date certain into February of next year. This will permit the parties ample time to attempt to resolve their dispute without litigation. Further, I am advised by opposing counsel that her client operates A retail store in Maryland and would prefer to avoid having to attend any hearings during and shortly after the upcoming Holidays since Christmas is an important selling season for her. ot ankingyofor ruly rs,aneff PT/lmp RICCI & TANEFF ATTORNEYS AND COUNSELLORS AT LAW your consideration of this matter, I remain, . aka adminod In Wr om • 1 Letter to Hon. E.E. Guido, Jr. Re: Malone v. A&T Toy Poodles November 11, 1999 Page 2 Enclosure: (As referenced above.) cc: Kathleen K. Shaulis, Esq. (w/enc.) 44 South Hanover Street Carlisle, PA 17013 Alice R. Mountz (w/enc.) A&J Toy Poodles 899 Emily Drive Mechanicsburg, PA 17055 CHRISTA MALONE V. JACK A. SUNDERLAND & ALICE R. MOUNTZ T/A/ A & J TOY POODLES IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-4601 CIVIL TERM CIVIL ACTION - LAW AND NOW, this 2nd day of NOVEMBER, 1999, the Court being in receipt of the Defendants' Motion to Vacate Default Judgment and Plaintiff's response thereto, a hearing on this matter is scheduled for ,Monday;:; December, .45-a.m.,,, in Courtroom # 5 of the Cumberland County Courthouse. At said hearing the Defendants as well as Defendants' counsel shall be prepared to present evidence to prove the allegations in their motion. By the Court, Edward E. Guido, J. Kathleen K. Shaulis, Esquire For the Plaintiff Paul Taneff, Esquire For the Defendants :sld THE LAW OFFICES OF KATHLEEN K. SHAULIS, ESQ. 44 SOUTH HANOVER STREET CARLISLE, PA 17013 PHONE (717) 243.6655 FAX (717) 243-6618 November 14, 1999 VIA FAX TRANSMISSION TO (717) 240-6462 AND FIRST CLASS MAIL HONORABLE EDWARD E. GUIDO, JR CUMBERLAND COUNTY COURT OF COMMON PLEAS 1 COURTHOUSE SQUARE CARLISLE, PA 17013-3387 RE: Malone v. Mountz and Sunderland No. 99-4601 Dear Judge Guido: This is to confirm that Defendants' counsel Paul Taneff in the above-referenced matter and I have spoken about moving the hearing date from Monday, December 13, 1999 at 8:45 a.m. Although I am agreeable to moving the hearing because of a scheduling conflict, neither I nor my client Christa Malone have any desire to continue this matter generally. Thus, I suggest a January hearing date be scheduled if at all possible. Sincerely, Kathleen K. Shaulis, Esq. cc.: Paul Taneff Sent by SKAth loon K. Shou l is Nou-I5-99 08150sn from 7172436618+2406462 Ps9e 1 THE LAW OFMCEN OF KATHLEEN K. SHAuus, Esq. 44 SOUTH HAmoven srREHT C ANUSLK, PA 17013 PHOHE (717) 74346698 FAX (717) PA3461 a November 14, 1999 VIA FAX TRANSMISSION TO' (717) 240-6462 AND FIRST CLASS MAIL HONORABLE EDWARD E. GUIDO, JR CUMBERLAND COUNTY COURT OF COMMON PLEAS 1 COURTHOUSE SQUARE CARLISLE, PA 17013-3387 RE: Malone v. Mountz and Sunderland No. 99-4601 Dear Judge Guido: This is to confirm that. Defendants' counsel Paul Taneff in the above-referenced matter and I have spoken about moving the hearing date from Monday, December 13, 7.999 at 8:45 a.m. Although I am agreeable to moving the hearing because of a scheduling conflict, neither I nor my client Christa Malone have any desire to continue this matter generally. Thus, I suggest a January hearing date be scheduled if at all possible. Sincerely, Kathleen K. Shaullis, Esq. cc: Paul. Tane£f 01/16/1994 21:53 7175648683 RICCI & TANEFF PAGE 01/04 FAX TRANSMITTAL RICCI fit TANEFF ATTORNEYS AND COUNSELLORS AT LAW 4219 Derry Street, Harrisburg, PA 17111 Telephone; (717) 564.5833 Fat (mly): (717) 564.8683 Date: 1999 Time. 30 ?a..? N u m b e r o f p a g e s (including this sheet) T o : ycw-OF e ul/ At Fax II: ( ?7) ?.C . ?u/eo Jam- _ C o m p a n y R e g a r d( i 11 g r Jee I-D,-A J d&& U)IeA)O- f eu. r•r' /ua n ?s MF inreA>iatJ T IAW, s ?F Note: If any of these fax copies are /illegible; or you do not receive the same number of pages as stated above, please contact me immediately at: (717) 564-5833 CONFIDENTIALITY NOTE Infonnailon/documents accompanying this transmission contain Information from the Law firm of RICCI ar TANEFF, which Is confidential and/or legally privileged. This Information Is Intended solely for the use of the Individual or entity named on this transmission sheet. If you are not the designated recipient, you are hereby notined that any disclosure, copying, distribution or taking of any action of reliance on the contents of this Information Is prohibited. If yuu hdve tecelved this n'ansmisslon In error, please nodiy us by telephone Immedlatcly so that we can arrange for the return of the original documents to us at no cost to you and with reimbursement for costs you may have Incurred In responding to this notification 01/16/1994 21:53 7175648683 RICCI & TANEFF PAGE 02/04 RICCI & TANEFF ATTORNEYS AND COUNSELLORS AT LAW Gregory J. Ricci A219 DBRy Simi Paul Tana M' Nanieourg. PA 17111 Tal (717) 561.5811 Far (717) 564.8681 November 11, 1999 VIA FAX TRANSMISSION TO (717) 240-6462 AND FIRST CLASS MAIL HONORABLE EDWARD E GUIDO JR c:UMbERLAND COUNTY =TRT OF COMMON PLFAS 1 COURTHOUSE SQUARE CARLISLE PA 17013-3387 RE:,MALONE V.. SUNDERLAND ET AL. NO. 99-4601 CUMBERLAND COUNTY Dear Judge Guido: The referenced matter is scheduled to be heard before you on December 13, 1999, at 8:45 A.M. on our client A&J Toy Poodles Motion To Vacate Default Judgment. A copy of your order is enclosed for your reference. 'The week of December 1.3 is Dauphin County's Arbitration week. We have a case which is scheduled for arbitration on December 13, 1999. This case was listed for arbitration some time ago, and because of this conflict we are requesting that the matter scheduled before you be continued. 1 have spoken this day with apposing counsel and she is agreeable to continuing L.hr.. he.ari.n? and agrees to a rather grn1 rrnln continuance of this matter to permit the parties some opportunity to settle without litigation. 'T'hus, we would respectfully request that you generally continue this matter without a dal..e c-ertain or reschedule this hearing for .1 date certain into February of next year. This will permit the parties ample time to attempt to resolve their dispute without litigation. Further, I am advised by opposing counsel that her client operates a retail store in Maryland and would prefer to avoid having to attend any hearings during and ;J iortly after the upcoming Ilolidays alnr7r Christmas is an important selling season for her. OThanklrulne aff `(r PT/Imp your consideration of this matter, I remain, ilia"E WxJm 19M, 01/16/1994 21:53 7175648683 Letter to Hon. E.E. Guido, Jr. Re: Malone v, A&T Toy Poodles November 11, 1999 Page 2 RICCI & TANEFF Enclosure: (As referenced above.) cc: Kathleen K. Shaulis, Esq, (w/enc,) 44 South Hanover Street Carlisle, PA 17013 Alice R. Mountz (w/enc.) AW -roy Poodles 899 Emily Drive Mechanicsburg, PA 17055 PAGE 03/04 01/j 6/1994 21:53 7175648683 CHRISTA MALONE ti V. JACK A. SUNDERLAND & ALICE R. MOUNTZ .96 T/A/ A & J TOY POODLES RICCI & TANEFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-4601 CIVIL TERM CIVIL ACTION - LAW AND NOW, this 2'4 day of NOVEMBER, 1999, the Court being in receipt of the Defendants' Motion to Vacate Default Judgment and Plaintiff's response thereto, a hearing on this matter is scheduled for ,Kdziday; December. 1 in Courtroom # 5 of the Cumberland County Courthouse. At said hearing the. nefendanto as well as Defendants' counsel shall be prepared to present evidence to prove the allegations in their motion. Kathleen K. Shaulis, Esquire For the Plaintiff Paul Taneff, Esquire For the Defendants By the Court, oQi-? Edward E. Guido, J. PAGE 04/04 :old CHRISTA MALONE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. . A JACK A. SUNDERLAND NO. 99-4601 CIVIL TERM & ALICE R. MOUNTZ T/A/ A & J TOY POODLES CIVIL ACTION - LAW AND NOW, this 2nd day of NOVEMBER, 1999, the Court being in receipt of the Defendants' Motion to Vacate Default Judgment and Plaintiff's response thereto, a hearing on this matter is scheduled for Monday, December 13, 1999, at 8:45 a.m. in Courtroom # 5 of the Cumberland County Courthouse. At said hearing the Defendants as well as Defendants' counsel shall be prepared to present evidence to prove the allegations in their motion. By the Court, 4 Edward E. Guido, J. Kathleen K. Shaulis, Esquire For the Plaintiff Paul Taneff, Esquire For the Defendants :sld ? i r'f I' S_? ? .. -._ ,.?, s? nu ":.Y c: _ S 4 OCT 2 s 1999 1 CHRISTA MALONE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA Vs. CIVIL ACTION - LAW JACK A. SUNDERLAND AND NO. 99-9601 CIVIL TERM ALICE R. MOUNTZ t/a A & J TOY POODLES, Defendants ORDER AND NOW, this _ day of 1999, the Court being fully advised in the premises, it is hereby: ORDERED, ADJUDGED AND DECREED, that the Defendants' Motrion to Vacate Default Judgment is denied. BY THE COURT J. i= r- - i , ! rp c . .. , 1• . 1 CHRISTA MALONE, Plaintiff Vs. JACK A. SUNDERLAND AND ALICE R. MOUNTZ t/a A & J TOY POODLES, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-4601 CIVIL TERM a PLAINTIFF'S ANSWER IN OPPOSITION TO DEFENDANTS'MOTION TO VACATE DEFAULT JUDGMENT (PETITION FOR RELIEF FROM DEFAULT JUDGMENT) AND NOW, comes the Plaintiff, Christa Malone, by her attorney, Kathleen K. Shaulis, Esq. and respectfully answers the Motion (Petition for Relief) filed by the Defendants pursuant to Pa. R.C.P. 237.3 as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. It is denied that the default occurred without any lack of diligence, fault or negligence on the part of the Defendants or their attorneys. To the contrary, Defendants have been less than diligent in defending this suit. Plaintiff's complaint was served on both Defendants individually by first class mail on August 20, 1999. Pursuant to Pa.R.C.P. 1026, Defendants had until September 9, 1999 to respond to the complaint, four (4) days i prior to the time that Defendants met with their counsel and that Defendants' counsel allegedly mailed the September 13, 1999 letter to opposing counsel requesting more time to respond to Plaintiff's complaint. Plaintiff's Notice of Praecipe for Entry of Default Judgment was mailed to both Defendants individually on September 14, 1999, the day after the letter requesting more time was allegedly mailed to opposing counsel and more than seventeen (17) days before Plaintiff filed the Praecipe for Default Judgment in the Cumberland County Prothonotary's Office on October 1, 1999. Moreover, the Defendants did not attempt to file an Answer to the Plaintiff's Complaint with the Prothonotary until October 4, 1999, more than forty-five (45) days after service of the Complaint and three (3) days after Plaintiff filed the praecipe for default judgment with the Prothonotary. 7. It is denied that Defendants have a meritorious defense to the Plaintiff's cause of action as 2 %embraced in their Answer to the Complaint that was filed on October 4, 1999," three days after Plaintiff filed her Praecipe for default judgment with the Prothonotary. To the contrary, the "embraced" defense which is not set forth in "precise, specific, clear and unmistaken terms" appears to be that the Plaintiff was contributorily negligent and assumed the risk, (Defendant's New Matter, $45). This defense, however, is far from "meritorious." Plaintiff was not negligent and did not assume any risk in her dealings with the Defendants. Defendants stated to the Plaintiff that they guaranteed the puppy for one year (Plaintiff's Complaint 113) and Defendant Alice Mountz signed a receipt stating that Plaintiff could return the poodle for a full refund within 96 hours after it was received by her if her veterinarian found an infectious or any congenital disorder with the puppy, Plaintiff's Exhibit I. Furthermore, no negligent conduct on the part of Plaintiff or her husband could have caused the "congenital" problems diagnosed by their veterinarian, Michael McAllister, VMD, i.e. "poor muscle mass in front and rear legs" or a hairless patch on the left rear thigh "that would q -1 3 need a skin biopsy and culture to diagnose the problem" (Plaintiff's Exhibit D). Moreover, this is an action on a "contract" -- the sale of a puppy -- and assumption of risk and contributory negligence are riot proper defenses in such a matter. B. Admitted. 9. It is denied that Defendant's attorneys advised opposing counsel that they required additional time to file an answer to the complaint. To the contrary, opposing counsel never received the September 13, 1999 letter that is attached to Defendants' motion as Exhibit B and was allegedly mailed one (1) day before Plaintiff's counsel mailed the Notice of Praecipe to Entry of Default Judgment to the Defendants individually. 10. It is denied that the Notice of Default was "allegedly" mailed to the Defendants by opposing counsel. To the contrary, actual mailing of the Notice individually to both Defendants was made. Plaintiff's counsel included in her Praecipe for a default judgment copies of two certificates of mailing, one addressed to each Defendant, proving that the Notices required by Pa. R.C.P. 237.1 were given to both Defendants. So there is no mistake 4 about whether the Notices were mailed, the original certificates of mailing are attached to the original of this Answer and are incorporated herein as Plaintiff's Exhibit L. Each certificate dated September 14, 1999 clearly shows the same mailing address used by the Defendants in filing the appeal from the district justice's adverse decision and used by Plaintiff's counsel to serve the Defendants with the Plaintiff's Complaint. In fact, this is the same address that their counsel used to send them copies of this Motion. See Plaintiff's Exhibit M, attached hereto and incorporated herein. Finally, pursuant to Pa. R.C. P. 440(b), service by mail of legal papers other than by original process is complete upon mailing. It is denied that Plaintiff's counsel received the September 13, 1999 letter from Defendants' counsel requesting more time to file the Answer. It is denied that the Defendants were denied due process and an opportunity to present their defense to this action. 11. It is admitted that both the Crisp matter and the instant matter are involve the sale of a teacup poodle puppy to Plaintiffs represented by the same counsel and the Defendants' refusals to give Mr. 5 Crisp and Mrs. Malone the promised refunds. It is denied that other circumstances in the two cases are strikingly similar and that the defenses of assumption of risk and contributory negligence asserted by the Defendants have any merit with respect to either case, let alone in this case where there is no issue involving whether the puppy is still alive. It is denied that Defendants intended to vigorously defend against both actions since Defendants did not file an Answer to the instant Complaint until forty-five (45) days after service of the Complaint, twenty (20) days after Notice of a Praecipe for Default Judgment was filed, and three (3) days after default judgment was entered against them. 12. It is denied to the extent implied that the Defendants have not been dilatory, have been denied due process and have a meritorious defense to the underlying action. To the contrary, Defendants have been dilatory, have not been denied due process and do not have a meritorious defense to this action. To the extent that this Paragraph is a conclusion of law, no response is required. 6 13. It is denied that the Defendants will be seriously prejudiced and suffer irreparable injury and great loss and damage unless the default judgment is vacated and they are permitted to defend against the Plaintiff's action. To the contrary, Defendants will be made to pay the just damages due to Plaintiff because of their deceptive and fraudulent conduct in not refunding the price of the puppy to her when Plaintiff returned it to them within 96 hours of its delivery based on her veterinarian's recommendation. 14. It is denied that the Plaintiff will not be prejudiced in that she will simply be required to litigate her claim like any other claim had a default judgment not been entered. To the contrary, Plaintiff has been litigating this case diligently from the district justice level and now into county court, expending time and money to meet filing deadlines and other procedural requirements to obtain the default judgment against the Defendants. The Plaintiff should not be penalized because of the Defendants' lack of diligence, negligence and fault in not defending this action in a timely fashion. 7 WHEREFORE, Plaintiff prays this Honorable Court to deny Defendants' Motion in the form of a Petition for Relief to vacate the Default Judgment entered against them on October 1, 1999. Respectfully submitted, Kat Teen K. Shaulis, Esq. Attorney for Plaintiff 44 South Hanover Street Carlisle, PA 17013 (717) 243-6655 I.D. No. 37445 Dated: October 28, 1999 8 PROVIDE FOR INSURANCE - POSTMASTER ?'l?'-vl ? S 1'?PrV' 1 S ?? ?? .• C 1, Ore of ordinary oral aMIm5511010'. .Q ?' h w n m 1-7 o- 6 'Form 3817. Mar. 1989 U.S. POSTAL SERVICE CERTIFICATE OF MAILING MAY SE USED FOR DOMESTIC AND INTERNATIONAL MAIL. DOES NOT PROVIDE FOR INSURANCE - POSTMASTER Rso ,i From: 1 Y?Gt YAW e/Y S \_±r v 1S,2 4701 One Flare of Mfl nary mail aftn lo: A I I CZ M C) L), T? P , es PS Form 3817. Mar. 1989 e y. :e , CHRISTA mhLONE, IN THE COURT OF COMM PLEAS OF Plaintiff CUNBZRLAND COUNTY, PENNSYLVANIA vn. CIVIL ACTION - LAW JACK A. SUNDERLAND AND NO. 99-4601 CIVIL TERN ALICE R. NOWTZ t/a A t J TOY POODLES, Defendants xmca or PAAwrm YOR ZW= Of JUDaaaT BY DsrATJLT To: JAM A. SUNDZRLM Date of Notice: Yeptewbox 14, 1999 LOcwmm NOTICi YOU ARE IN DEFAULT BECAUSE YOU FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT NAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP: CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 TELEPHONE: (717) 249-3166 An en K. Shaulis, Esq. ey for Plaintiff 44 South Hanover Street Carlisle, PA 17013 (717) 243-6655 I.D. No. 37445 1 CHRI87A MWMZ, Plaintiff Vs. JACK A. SUNDERLAND AND ALICE R. MOUNTZ t/a A i J TOY POODLES, D41fendants IN THE COURT OF COMMON PLEAS OF CUMRLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-4601 CIVIL TEEM "Mcs or PPAWIPM T= aNWX Or JUDMO1T By NWAM To: ALICZ R. MOOIM Date of Notice: September 14, 1999 ppOaR w wrxcz YOU ARE IN DEFAULT BECAUSE YOU FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE,. GO.TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP: CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 TELEPHONE: (717) 249-3166 Ka Teen K. Shaulis Esq. Att rneY for Plaintiff 44 South Hanover Street Carlisle, PA 17013 (717) 243-6655 I.D. No. 37445 1 RICCI & TANEFF ATTORNEYS AND COUNSELLORS AT LAW Gregory J. Rleoi 4219 Derry Street Paul TaneH' Harrisburg, PA 17111 Tel: (717) 564.5933 Fax: (717) 564.9993 October 15, 1999 CURT LONG PROTHONOTARY OF CUMBERLAND COUNTY CUMBERLAND COUNTY COURTHOUSE 1 COURTHOUSE SQUARE,' CARLISLE PA 17013-3387 RE: MALONE V SUNDERLAND ET AL.. NO. 99-4601_ CIVIL TERM Dear Mr. Long: Please file the enclosed Motion To Vacate Default Judgment in the referenced matter and return a "clocked" copy to the undersigned's attention. Towards this end, I have enclosed a self-stamped, addressed envelope for your use. Thank you for your kind assistance in this matter. Very truly yours, Paul Taneff PT/lmp Enclosures: (As referenced above.) cc: Kathleen K. Shaulis, Esq. (w/enc.) 44 South Hanover Street Carlisle, PA 17013 Alice R. Mountz (w/enc.) A&J Toy Poodles 899 Emily Drive Mechanicsburg, PA 17055 ?x?+iQ?T M . aba aEmined In Whot, . .. . VERIFICATION I verify that the statements made in the within Plaintiff's Answer in Opposition to Defendant's Motion to Vacate Default Judgment (Petition for Relief From Default Judgment) are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Sec. 4904 relating to unsworn falsification to authorities. Dated: October 28, 1999 Kat een K. Shaulis, Esq. .. . CHRISTA MALONE, Plaintiff VS. JACK A. SUNDERLAND AND ALICE R. MOUNTZ t/a A & J TOY POODLES, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-4601 CIVIL TERM CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Plaintiff's Answer in Opposition to Defendant's Motion to Vacate Default Judgment (Petition From Relief From Default Judgment) upon the person and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure by depositing a copy of same in the United States mail, Carlisle, Pennsylvania, Pennsylvania, first class, postage prepaid as follows: Paul Taneff, Esq. 4219 Derry Street Harrisburg, PA 17111 Attorneys for the Defendants (717) 564-5833 Kat Teen K. Sha 1i-1s' Esq. Att rney ID No. 37445 44 South Hanover Street Carlisle, PA 17013 (717) 243-6655 Dated: October 28, 1999 F CHRISTA MALONE, Plaintiff, Vs. JACK A. SUNDERLAND AND ALICE R. MOUNTZ, t/a = A&J TOY POODLES, Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-4601 CIVIL TERM CIVIL ACTION-LAW RULE TO SHOW CAUSE /? AND NOW, this day of oe , 1999, a Rule is issued upon the Plaintiff to show cause why the Defendants' Motion To Vacate Default Judgment should not be granted. RULE IS RETURNABLE IS DAYS AFTER SERVICE. BY THE COURT: Ref:h:\x\c\moint\a lice\doc009.wpd Q: n 0 CHRISTA MALONE, I Plaintiff, VS. JACK A. SUNDERLAND AND ALICE R. MOUNTZ, t/a A&J TOY POODLES, Defendants. OCT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-4601 CIVIL TERM CIVIL ACTION-LAW ORDER AND NOW, this - day of 1999, the Court being fully advised in the premises, it is hereby: ORDERED, ADJUDGED AND DECREED, that the Defendants' Motion To Vacate Default Judgment is granted; and it is FURTHER ORDERED that default judgment is vacated, the above titled action shall be reinstated and the Defendants are granted leave to defend the above titled action as if the default judgment had never been entered. BY THE COURT: Ref:h:\x\c\mount\alice\doc010.wpd 14 CHRISTA MALONE, Plaintiff, Va. JACK A. SUNDERLAND AND ALICE R. MOUNTZ, t/a A&J TOY POODLES, Defendants. _ IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY,PENNSYLVANIA NO. 99-4601 CIVIL TERM CIVIL ACTION-LAW MOTION TO VACATE DEFAULT JUD MFNT NOW COME, the Defendants, JACK A. SUNDERLAND and ALICE R. MOUNTZ, t/a: A&J POODLES, by and through their attorneys, Ricci & Taneff, and respectfully move this Court to vacate the default judgment entered in the above titled cause. In support of their motion, the Defendants state as follows: 1. The Defendant, Jack A. Sunderland, is an adult individual, t/a: A&J Toy Poodles, conducting business at 899 Emily Drive, Mechanicsburg, Cumberland County, PA 17055. 2. The Defendant, Alice R. Mountz, is an adult individual, t/a: A&J Toy Poodles, conducting business at 899 Emily Drive, Mechanicsburg, Cumberland County, PA 17055. 3. The Plaintiff, Christa Malone, is an adult individual, residing at 211 Hall Drive, Salisbury, Maryland. 4. On October 1, 1999, a judgment was entered in favor of the Plaintiff against the Defendants in the above titled cause. 5. The judgment was entered by virtue of a default on the part of the Defendants, as appears on the face of the record. 6. The default was taken without any lack of diligence, fault or neglect on the part of the Defendants or their attorneys. 7. Defendants have a meritorious defense to the Plaintiff's alleged cause of action as embraced in their Answer which was filed in response to the Plaintiff's Complaint on October 4, 1999. (A copy of the Answer is attached hereto and made a part hereof as Exhibit-A.) I e. The Plaintiff filed the above titled action on August 20, 1999, following the Defendants' appeal from a District Justice judgment. 9. On September 13, 1999, Defendants' attorneys advised opposing counsel that they would require an additional period of time to prepare and file Defendants' Answer to the Plaintiff's Complaint. No objection to this request was received from opposing counsel. (A copy of the letter of September 13, 1999 is attached hereto and made a part hereof as Exhibit-B.) 10. Despite the request for additional time to prepare and file an Answer, on or about September 14, 1999 a Notice of Default was allegedly mailed to the Defendants. However, the Defendants never received the said Notice and, in consequence thereof, were unable to respond with an appropriate pleading and have been denied due process and an opportunity to present their defense to this action. (See Defendants' Affidavits attached hereto and made a part hereof as Exhibit-C.) 11. The above titled action is strikingly similar to another case filed by opposing counsel against the Defendants on or about July 13, 1999 which case is captioned and docketed as Crisp Defendants' Answer was mailed for filing on October 1, 1999 and clocked in by the Prothonotary's Office of this Court on October 4, 1999. 2 v. Sunderland al., 99-3842 Civil Term. The pleadings in this case are now closed and the parties are currently engaged in discovery. Except for the party Plaintiffs in this case (i.e., Crisp) and the above titled case (i.e., Malone), the defenses are also similar and at all relevant times, the Defendants intended to vigorously defend against both actions. 12. A default judgment is draconian in nature and should not be allowed to stand where it appears that Defendants' have not been dilatory, have been denied due process and have a meritorious defense to the underlying action. 13. The Defendants will be seriously prejudiced and suffer irreparable injury and great loss and damage unless the default judgment is vacated and they are permitted to defend against the Plaintiff's action. 14. The Plaintiff will not be prejudiced in that she will simply be required to litigate her claim like any other claim had a default judgment not been entered. WHEREFORE, the Defendants respectfully request this Honorable Court to vacate the Plaintiff's default judgment and to grant the Defendants' leave to defend against this action. Dated: October 15, 1999 Ref:h:\x\c\mount\alice\doc006.wpd Respectfully submitted, RICCI & TANEFF By: (Itiz Pa Tanef sq. Sup. Ct. No. 63777 4219 Derry Street Harrisburg, PA 17111 Attorneys for Defendants 3 EXHIBIT-A /Defendants' Answer To Plaintiff's Complaint Filed October 4, 19991 CHRISTA MALONE, Plaintiff, Vs. JACK A. SUNDERLAND AND ALICE R. MOUNTZ, t/a A&J TOY POODLES, Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-4601 CIVIL TERM 7 CIVIL ACTION-LAW C•r,. '? 1 .t ' 1., ?l NOTICE TO PLEAD TO THE PLAINTIFF: •n 1 t You are hereby notified to plead to the enclosed Answer With New Matter and Counterclaim within twenty (20) days from service hereof or a default judgment may be entered against you. Dated: October 1, 1999 RICCI & TANEFF By: aU2 Paul Taneff, Esq. Sup. Ct. No. 63777 4219 Derry Street Harrisburg, PA 17111 (717) 564-5833 Attorneys for Defendants Ref:It:\x\c'\mount\alice\doc005.wpd "RISTA MALONE, s Plaintiff, vs. s s JACK A. SUNDERLAND AND s ALICE R. MOUNTZ, t/a A&J TOY POODLES, : s Defendants. : s IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-4601 CIVIL TERM CIVIL ACTION-LAW ANSWER NOW COME, the Defendants, JACK A. SUNDERLAND and ALICE R. MOUNTZ, t/a A&J TOY POODLES, and file their Answer to the Plaintiff's Complaint. In support of their Answer, the Defendants state as follows: 1. ADMITTED. 2. ADMITTED. 3. ADMITTED. 4. ADMITTED. 5. ADMITTED IN PART; DENIED IN PART. The Defendants are without knowledge or information sufficient to form a belief as to what the Plaintiff and his wife saw in the Baltimore Sun or on the Internet or what their response may have been and, therefore the Defendants deny the same. Stating further, the Defendants admit that the Plaintiff and her husband and mother arrived at 899 Emily Drive, Mechanicsburg, PA and inquired about the purchase of a teacup poodle. 6. DENIED. Stating further, the Defendants showed the Plaintiff and her husband two (2), female, poodles; one (1) being a toy poodle and the other being a teacup poodle. 7. DENIED AS STATED. Stating further, the two poodles referred to above were born of the same mother who was on premises and was shown to the-Plaintiff. 8. ADMITTED. Stating further, the Defendants selected the black teacup poodle as opposed to the toy poodle referred to above. 9. DENIED AS STATED. The Defendants advised the Plaintiff and her husband that the puppy they decided to purchase could not be released to them under Commonwealth law until the puppy was at least seven weeks old. 10. ADMITTED. 11. ADMITTED. Stating further, on March 20, 1999, the Plaintiff and her husband took possession of the teacup poodle and returned home to Maryland 12. ADMITTED IN PART; DENIED IN PART. The Defendant Alice R. Mountz admits signing a paper presented to her by the Plaintiff's husband. However, the Defendant Alice R. Mountz denies that the paper guaranteed the Plaintiff the right to return the puppy as alleged. 13. DENIED. 19. DENIED. Stating further, the Defendants are without knowledge or information sufficient to form a belief as to when the Plaintiff took the teacup poodle to her veterinarian or what she was charged and, therefore deny the same. 15. DENIED. Stating further, the Defendants are without knowledge or information sufficient to form a belief as to what the Plaintiff was told by her veterinarian and, therefore deny the same. Stating further, the Defendants admit that their is a document attached to the Plaintiff's Complaint as Exhibit-D purporting to be a letter signed by Dr. McAllister and which 2 nt speaks for itself. 16. DENIED. 17. DENIED AS STATED. The Defendants admit that the Plaintiff and her husband returned the teacup poodle on March 27, 1999 instead of March 25, 1999 as alleged and demanded a refund. 18. a. DENIED. b, ADMITTED. c. ADMITTED. d. ADMITTED. 19. ADMITTED. 20. DENIED AS STATED. Stating further, the Defendant Alice R. Mountz admits that she refused to issue a refund to the Plaintiff and, only after Plaintiff and her husband became threatening did she ask them to leave or she would be required to seek the assistance of local law enforcement to have them removed. 21. DENIED. 22. DENIED. The Defendants are without knowledge or information sufficient to form a belief as to what the Plaintiff's telephone number is and, therefore deny the same. 23. ADMITTED IN PART; DENIED IN PART. The Defendants admit that they were called several times by the Plaintiff. However, the Defendants are without knowledge or information sufficient to form a belief as why they were called or the exact number of times they were called and, therefore deny the same. Stating further, the Defendants admit that their is a document attached to the Plaintiff's Complaint as Exhibit-E purporting to 3 Fbe a copy of the Plaintiff's long distance telephone bill and which document speaks for itself. 24. DENIED. Stating further, the Defendants are without knowledge or information sufficient to form a belief as what the Plaintiff decided and, therefore denies the same. 25. DENIED. Stating further, the Defendants are without knowledge or information sufficient to form a belief as to whether the Plaintiff's grandmother ever called the Defendants and, therefore deny the same. Stating further, the Defendants admit that their is a document attached to the Plaintiff's Complaint as Exhibit-P purporting to be a copy of the Plaintiff's grandmother's long distance telephone bill and which document speaks for itself. 26. DENIED. 27. DENIED. 28. DENIED. Stating further, the Defendants are without knowledge or information sufficient to form a belief as to what the Plaintiff knows about the puppy's location or condition and, therefore deny the same. 29. ADMITTED. 30. DENIED. The Defendants are without knowledge or information sufficient to form a belief as to what paperwork the Plaintiff is referring to and, therefore deny the same. 31. ADMITTED. 32. ADMITTED. 33. DENIED. The Defendants are without knowledge or information sufficient to form a belief as to what paperwork and/or documentation Plaintiff is referring to and, therefore 4 deny the same. 34. ADMITTED IN PART; DENIED IN PART. The Defendants admit that the Plaintiff has attached to her Complaint the documents identified as Exhibits H, I, J and K. Stating further, the Defendants are without knowledge or information sufficient to form a belief as to the accuracy or veracity of the contents of the said Exhibits and, therefore deny the same. 35. DENIED AS STATED. Stating further, the Defendants admit that they periodically advertise puppies for sale in Pennsylvania, Maryland and on the Internet. 36. ADMITTED. Stating further, the Defendants state that they are not required to be, licensed as a kennel. 37. ADMITTED. 38. ADMITTED. 39. DENIED. This allegation constitutes a conclusion of law which requires no responsive pleading. To the extent a response is required, the Defendants deny the same. 40. DENIED. This allegation constitutes a conclusion of law which requires no responsive pleading. To the extent a response is required, the Defendants deny the same. 41. DENIED. This allegation constitutes a conclusion of law which requires no responsive pleading. To the extent a response is required, the Defendants deny the same. 42. DENIED. This allegation constitutes a conclusion of law which requires no responsive pleading. To the extent a response is required, the Defendants deny the same. 43. DENIED. This allegation constitutes a conclusion of law which requires no responsive pleading. To the extent a 5 response is required, the Defendants deny the same. 44. DENIED. Stating further, the Defendants, are without knowledge or information sufficient to form a belief as what the Plaintiff's fee agreement is with her attorney and, therefore deny the same. WHEREFORE, this paragraph is in the form of a prayer for relief to which a responsive pleading is not required. To the extent that a response may be required, the Defendants deny that the Plaintiff is entitled to any of the relief claimed. NEW MATTER For their affirmative defenses to the Plaintiff's Complaint, the Defendants, by and through their aforesaid attorneys, state as follows: 45. Any problems which the puppy may have experienced, was proximately caused by the Plaintiff's own neglect, fault or careless conduct in caring for a seven week old puppy including, but not limited to, contributory negligence and assumption of risk by the Plaintiff, and without any negligence, fault, want of care or other culpable conduct bn the part of the answering Defendants. WHEREFORE, the Defendants respectfully request this Honorable Court to enter judgment for Defendants, dismissing the Plaintiff fIs complaint and awarding the Defendants costs, expenses and attorneys fees for the defense of this action and such other relief as the Court deems just, proper and equitable. COUNTERCLAIM For a counterclaim, the Defendants, by and through their aforesaid attorneys, state as follows: 6 FF 46. Defendants incorporate paragraphs 1 through 45 of their Answer as if set forth herein full. 47. Plaintiff has failed to allege or attach to their Complaint any evidence that the puppy's condition was the result of a genetic and/or hereditary illness or any other illness. 48. Absent such allegations of proof that the puppy suffered other than through the Plaintiff's own neglect, renders their Complaint frivolous in that it is neither well grounded in fact or law. 49. In consequence thereof, the Defendants are entitled to recover their attorney fees under 42 P.S. § 2503(10) WHEREFORE, the Defendants respectfully request this Honorable Court to enter Judgment against the Plaintiff and award attorneys fees and costs for the defense of this action. RICCI & TANEFF Dated: October 1, 1999 By: Ref:h:\x\c\mount\alice\doc004.wpd 7 4219 Derry Street Harrisburg, PA 17111 (717) 564-5833 Attorneys for Defendants VERIFICATION The undersigned, hereby acknowledges that he is the attorney of record in this matter representing the Defendants, Alice R. Mountz and Jack A. Sunderland, t/a: A&J Toy Poodles; that the undersigned has read the foregoing Defendants' Answer to Plaintiff's Complaint; and that the facts stated therein are true to the best of the undersigned's knowledge based upon interviews with the Defendants in the course of the undersigned's investigation and preparation of this Reply. The undersigned supplies this verification because both Defendants were not available to sign the same in order to timely file this Reply. A verification signed by both Defendants will be forthcoming. The undersigned understands that any false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904 related to unsworn falsification to authorities. Dated: October 1, 1999 T EFF, E Q. Ref:h:\x\c\mount\a1ice\ver2.wpd W CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Defendants' Answer To Plaintiffs Complaint was sent via first class, U.S. Mail, postage prepaid, this 1st day of October, 1999 to the following person(s) at the address(es) set forth below their respective names: (1) Kathleen K. Shaulis, Esq. 44 South Hanover Street Carlisle, PA 17013 RICCI & TANEFF By: P Taneff, Esq. Sup. Ct. No. 6377 4219 Derry Street Harrisburg, PA 17111 (717) 564-5833 Attorneys for Defendants Ref:h:\x\c\mount\a1ice\cs1-wpd EXHIBIT-B /Letter from Ricci & Taneff to Kathleen Shaulis of September 13, 19991 September 13, 1999 KATHLEEN K SHAULIS ESQ 44 SOUTH HANOVER STREET CARLISLE PA 17013 RE: MALONE V. SUNDERLAND FT AL NO. 999-4601 CUMBERLAND COUNTY Dear Ms. Shaulis: ,.: COPY When you called me to determine whether we would accept service of this suit on behalf of our client, A&J Toy Poodles, I was not authorized to do so at that time, had no knowledge of the District Justice proceeding and that is why I asked you to serve the Complaint directly upon the Defendants. This letter will acknowledge that we met with our client to day to review the Complaint and we will be preparing an Answer for filing. However, in view of my current calendar, I would respectfully request a reasonable extension of time to file an Answer. Unless I hear from you to the contrary, I will assume that if we are filed no later than October 15, 1999, you will not have a problem. Otherwise, we will file a Motion with the Court requesting an enlargement of time necessary to complete our initial investigation and prepare a responsive pleading. In the meantime, should you have any questions concerning this matter, please don't hesitate to call me. Very truly yours, Paul Taneff PT/lmp EXHIBIT-C fAffidavits of Jack A. Sunderland & Alice R Mountz of October 14, 19991 The Affiant, JACK A. SUNDERLAND, being duly sworn, says of his own personal knowledge: 1. THAT he is an owner of A&J Toy Poodles, and conducts business at 899 Emily Drive, Mechanicsburg, PA 17055. 2. THAT he is over 18 years of age, of sound mind and has personal knowledge of every statement herein made and is fully competent to testify to the material stated. 3. THAT he is a party defendant to the lawsuit filed on or about August 20, 1999 in Cumberland County Court of Common Pleas which lawsuit is captioned and docketed as Malone v. Sunderland et a1., 99-4601 Civil Term. 4. THAT he first learned that the Plaintiff had caused a default judgment to be entered against him on or about October 4, 1999. 5. THAT he never received notice nor did he have any knowledge of the Plaintiff's intention to enter a default judgment against him. 6. THAT he believes that the Plaintiff's Complaint is frivolous, without basis in law or fact and that he has a meritorious defense to the Plaintiff's Complaint. The undersigned hereby declares under penalty of perjury that the foregoing affidavit is made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities. Dated: October 14, 1999 j G? /qACK A. SUNDERLAND AFFIDAVIT OF ALICE R MO NTT The Affiant, ALICE R. MOUNTZ, being duly sworn, says of her own personal knowledge: 1. THAT she is an owner of A&J Toy Poodles, and conducts business at 899 Emily Drive, Mechanicsburg, PA 17055. 2. THAT she is over 18 years of age, of sound mind and has personal knowledge of every statement herein made and is fully competent to testify to the material stated. 3. THAT she is a party defendant to the lawsuit filed on or about August 20, 1999 in Cumberland County Court of Common Pleas which lawsuit is captioned and docketed as Malone v. Sul2derland et - 99-4601 Civil Term. 4. THAT she first learned that the Plaintiff had caused a default judgment to be entered against her on or about October 4, 1999. 5. THAT she never received notice nor did she have any knowledge of the Plaintiff's intention to enter a default judgment against her. 6. THAT she believes that the Plaintiff is Complaint is frivolous, without basis in law or fact and that she has a meritorious defense to the Plaintiff's Complaint. The undersigned hereby declares under penalty of perjury that the foregoing affidavit is made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities. Dated: October 14, 1999 . C261 d& 2?h? AALIUi? R. O Z ef:h:\x\c\mount\alice\doco07.wpd CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Defendants, Motion To Vacate Default Judgment was sent via first class, U.S. Mail, postage prepaid, this 15th day of October, 1999 to the following person(s) at the address(es) set forth below their respective names: (1) Kathleen K. Shaulis, Esq. 44 South Hanover Street Carlisle, PA 17013 RICCI & TANEFF i By.' aul anef sq. Sup. Ct. No. 63777 4219 Derry Street Harrisburg, PA 17111 (717) 564-5833 Attorneys for Defendants Ref; h:\x\c\mount\alice\csI-wpd (- g u; 0 1- ILI 7. u. ,- N F Coo C m c, C y&4- CHRISTA MALONE, Plaintiff, VS. JACK A. SUNDERLAND AND ALICE R. MOUNTZ, t/a A&J TOY POODLES, Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-4601 CIVIL TERM CIVIL ACTION-LAW NOTICE TO PLEAD TO THE PLAINTIFF: You are hereby notified to plead to the enclosed Answer With New Matter and Counterclaim within twenty (20) days from service hereof or a default judgment may be entered against you. RICCI & TANEFF Dated: October 1, 1999 By: unlteA.Z? Paul Taneff, Esq. Sup. Ct. No. 63777 4219 Derry Street Harrisburg, PA 17111 (717) 564-5833 Attorneys for Defendants Ref:h:\x\c\mount\alice\doc005.wpd CHRISTA MALONE, Plaintiff, Vs. JACK A. SUNDERLAND AND ALICE R. MOUNTZ, t/a A&J TOY POODLES, Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY,PENNSYLVANIA NO. 99-4601 CIVIL TERM CIVIL ACTION-LAW ANSWER NOW COME, the Defendants, JACK A. SUNDERLAND and ALICE R. MOUNTZ, t/a A&J TOY POODLES, and file their Answer to the Plaintiff's Complaint. In support of their Answer, the Defendants state as follows: 1. ADMITTED. 2. ADMITTED. 3. ADMITTED. 4. ADMITTED. S. ADMITTED IN PART; DENIED IN PART. The Defendants are without knowledge or information sufficient to form a belief as to what the Plaintiff and his wife saw in the Baltimore Sun or on the Internet or what their response may have been and, therefore the Defendants deny the same. Stating further, the Defendants admit that the Plaintiff and her husband and mother arrived at 899 Emily Drive, Mechanicsburg, PA and inquired about the purchase of a teacup poodle. 6. DENIED. Stating further, the Defendants showed the Plaintiff and her husband two (2), female, poodles; one (1) being a toy poodle and the other being a teacup poodle. 7. DENIED AS STATED. Stating further, the two poodles referred to above were born of the same mother who was on the premises and was shown to the, Plaintiff. 8. ADMITTED. Stating further, the Defendants selected the black teacup poodle as opposed to the toy poodle referred to above. 9. DENIED AS STATED. The Defendants advised the Plaintiff and her husband that the puppy they decided to purchase could not be released to them under Commonwealth law until the puppy was at least seven weeks old. 10. ADMITTED. 11. ADMITTED. Stating further, on March 20, 1999, the Plaintiff and her husband took possession of the teacup poodle and returned home to Maryland 12. ADMITTED IN PART; DENIED IN PART. The Defendant Alice R. Mountz admits signing a paper presented to her by the Plaintiff's husband. However, the Defendant Alice R. Mountz denies that the paper guaranteed the Plaintiff the right to return the puppy as alleged. 13. DENIED. 14. DENIED. Stating further, the Defendants are without knowledge or information sufficient to form a belief as to when the Plaintiff took the teacup poodle to her veterinarian or what she was charged and, therefore deny the same. 15. DENIED. Stating further, the Defendants are without knowledge or information sufficient to form a belief as to what the Plaintiff was told by her veterinarian and, therefore' deny the same. Stating further, the Defendants admit that their is a document attached to the Plaintiff's Complaint as Exhibit-D purporting to be a letter signed by Dr. McAllister and which 2 (document speaks for itself. 16. DENIED. 17. DENIED AS STATED. The Defendants admit that the Plaintiff and her husband returned the teacup poodle on March 27, 1999 instead of March 25, 1999 as alleged and demanded a refund. 18. a. DENIED. b. ADMITTED. C. ADMITTED. d. ADMITTED. 19. ADMITTED. 20. DENIED AS STATED. Stating further, the Defendant Alice R. Mountz admits that she refused to issue a refund to the Plaintiff and, only after Plaintiff and her husband became threatening did she ask them to leave or she would be required to seek the assistance of local law enforcement to have them removed. 21. DENIED. 22. DENIED. The Defendants are without knowledge or information sufficient to form a belief as to what the Plaintiff's telephone number is and, therefore deny the same. 23. ADMITTED IN PART; DENIED IN PART. The Defendants admit that they were called several times by the Plaintiff. However, the Defendants are without knowledge or information sufficient to form a belief as why they were called or the exact number of times they were called and, therefore deny the same. Stating further, the Defendants admit that their is a document attached to the Plaintiff's Complaint as Exhibit-E purporting to 3 be a copy of the Plaintiff's long distance telephone bill and which document speaks for itself. 24. DENIED. Stating further, the Defendants are without knowledge or information sufficient to form a belief as what the Plaintiff decided and, therefore denies the same. 25. DENIED. Stating further, the Defendants are without knowledge or information sufficient to form a belief as to whether the Plaintiff's grandmother ever called the Defendants and, therefore deny the same. Stating further, the Defendants admit that their is a document attached to the Plaintiff's Complaint as Exhibit-F purporting to be a copy of the Plaintiff's grandmother's long distance telephone bill and which document speaks for itself. 26. DENIED. 27. DENIED. 28. DENIED. Stating further, the Defendants are without knowledge or information sufficient to form a belief as to what the Plaintiff knows about the puppy's location or condition and, therefore deny the same. 29. ADMITTED. 30. DENIED. The Defendants are without knowledge or information sufficient to form a belief as to what paperwork the Plaintiff is referring to and, therefore deny the same. 31. ADMITTED. 32. ADMITTED. 33. DENIED. The Defendants are without knowledge or information sufficient to form a belief as to what paperwork and/or documentation Plaintiff is referring to and, therefore 4 deny the same. 34. ADMITTED IN PART; DENIED IN PART. The Defendants admit that the Plaintiff has attached to her Complaint the documents identified as Exhibits H, I, J and K. Stating further, the Defendants are without knowledge or information sufficient to form a belief as to the accuracy or veracity of the contents of the said Exhibits and, therefore deny the same. 35. DENIED AS STATED. Stating further, the Defendants admit that they periodically advertise puppies for sale in Pennsylvania, Maryland and on the Internet. 36. ADMITTED. Stating further, the Defendants state that they are not required to be licensed as a kennel. 37. ADMITTED. 38. ADMITTED. 39. DENIED. This allegation constitutes a conclusion of law which requires no responsive pleading. To the extent a response is required, the Defendants deny the same. 40. DENIED. This allegation constitutes a conclusion of law which requires no responsive pleading. To the extent a response is required, the Defendants deny the same. 41. DENIED. This allegation constitutes a conclusion of law which requires no responsive pleading. To the extent a response is required, the Defendants deny the same. 42. DENIED. This allegation constitutes a conclusion of law which requires no responsive pleading. To the extent a response is required, the Defendants deny the same. 43. DENIED. This allegation constitutes a conclusion of law which requires no responsive pleading. To the extent a 5 response is required, the Defendants deny the same. 44. DENIED. Stating further, the Defendants are without knowledge or information sufficient to form a belief as what the Plaintiff's fee agreement is with her attorney and, therefore deny the same. WHEREFORE, this paragraph is in the form of a prayer for relief to which a responsive pleading is not required. To the extent that a response may be required, the Defendants deny that the Plaintiff is entitled to any of the relief claimed. NEW MATTER For their affirmative defenses to the Plaintiff's Complaint, the Defendants, by and through their aforesaid attorneys, state as follows: 45. Any problems which the puppy may have experienced, was proximately caused by the Plaintiff's own neglect, fault or careless conduct in caring for a seven week old puppy including, but not limited to, contributory negligence and assumption of risk by the Plaintiff, and without any negligence, fault, want of care or other culpable conduct on the part of the answering Defendants. WHEREFORE, the Defendants respectfully request this Honorable Court to enter judgment for Defendants, dismissing the Plaintiff's Complaint and awarding the Defendants costs, expenses and attorneys fees for the defense of this action and such other relief as the Court deems just, proper and equitable. COUNTERCLAIM For a counterclaim, the Defendants, by and through their aforesaid attorneys, state as follows: 6 46. Defendants incorporate paragraphs 1 through 45 of their Answer as if set forth herein full. 47. Plaintiff has failed to allege or attach to their Complaint any evidence that the puppy's condition was the result of a genetic and/or hereditary illness or any other illness. 48. Absent such allegations of proof that the puppy suffered other than through the Plaintiff's own neglect, renders their Complaint frivolous in that it is neither well grounded in fact or law. 49. In consequence thereof, the Defendants are entitled to recover their attorney fees under 42 P. S. § 2503(10) WHEREFORE, the Defendants respectfully request this Honorable Court to enter Judgment against the Plaintiff and award attorneys fees and costs for the defense of this action. RICCI & TANEFF Dated: October 1, 1999 By: ..may Sup. Ct. No. 637 . 4219 Derry Street Harrisburg, PA 17111 (717) 564-5833 Attorneys for Defendants Ref:h:\x\c\mount\alice\doc004.wpd 7 VERIFICATION The undersigned, hereby acknowledges that he is the attorney of record in this matter representing the Defendants, Alice R. Mountz and Jack A. Sunderland, t/a: A&J Toy Poodles; that the undersigned has read the foregoing Defendants' Answer to Plaintiffs Complaint; and that the facts stated therein are true to the best of the undersigned's knowledge based upon interviews with the Defendants in the course of the undersigned's investigation and preparation of this Reply. The undersigned supplies this verification because both Defendants were not available to sign the same in order to timely file this Reply. A verification signed by both Defendants will be forthcoming. The undersigned understands that any false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904 related to unsworn falsification to authorities. Dated: October 1, 1999 aT EFF, E Q. 2ef:h:\x\c\mount\alice\ver2.wpd CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Defendants' Answer To Plaintiff's Complaint was sent via first class, U.S. Mail, postage prepaid, this 1st day of October, 1999 to the following person(s) at the address(es) set forth below their respective names: (1) Kathleen K. Shaulis, Esq. 44 South Hanover Street Carlisle, PA 17013 RICCI & TANEFF By: UatLCLX- !?? Tanett, Esq. Sup. Ct. No. 6377 4219 Derry Street Harrisburg, PA 17111 (717) 564-5833 Attorneys for Defendants Ref: h:\x\c\mount\alice\cs1-wpd C_ ?, la, U r„ ? J ?? I -- n 1 CHRISTA MALONE, Plaintiff VS. JACK A. SUNDERLAND AND ALICE R. MOUNTZ t/a A S J TOY POODLES, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-4601 CIVIL TERM PRAECIPE FOR ENTRY OF JUDGMENT BY DEFAULT To the Prothonotary Kindly enter a judgment by default in the amount of $5498.18 (three times actual damages of $ 1666.18 plus $500.00 attorney's fees pursuant to 73 P.S. §201-9.2) against the above referenced Defendants Jack A. Sunderland and Alice R. Mountz for failing to respond to Plaintiff's Pleadings filed with this Court on August 20, 1999. Attached are copies of the Notices of Praecipe to Enter Judgment By Default mailed to the Defendants individually on September 14, 1999, a certification that the Notices were mailed and copies of the United States Post Office Certificates of Mailing evidencing services of the same on both Defendants. Neither Defendant has responded and the mailings have not been returned to me for an incorrect address. J i Ka hleen K. Shaulis, Esq. ;ryk Attorney for Plaintiff 44 South Hanover Street Carlisle, PA 17013 (717) 243-6655 I.U. No. 37445 Dated: October 1, 1999 :G , CHRI STA MALONE, Plaintiff vs. JACK A. SUNDERLAND AND ALICE R. MOUNTZ t/a A & J TOY POODLES, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-4601 CIVIL TERM NOTICE or PPARCIPE rOR ENTRY or JUDGUM BY DEFAULT To: ALICE R. NOUNTZ Date of Notice: September 14, 1999 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE. THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP: CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 TELEPHONE: (717) 249-3166 Ka leen K. Shaulis, Esq. Attorney for Plaintiff 44 South Hanover Street Carlisle, PA 17013 (717) 243-6655 I.D. No. 37445 CHRISTA MALONE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA Vs. CIVIL ACTION - LAW JACK A. SUNDERLAND AND NO. 99-4601 CIVIL TERM ALICE R. MOUNTZ t/a A S J TOY POODLES, Defendants NOTICE Or PAAECIPE FOR ENTRY or JUDGMENT BY DarAVLT To: JACK A. SUNDERLAND Date of Notice: September 14, 1999 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP: CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 TELEPHONE: (717) 249-3166 Kat leen K. Shaulis, Esq. Attorney for Plaintiff 44 South Hanover Street Carlisle, PA 17013 (717) 243-6655 I.D. No. 37445 CHRISTA MALONE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA Vs. CIVIL ACTION - LAW JACK A. SUNDERLAND AND NO. 99-4601 CIVIL TERM ALICE R. MOUNTZ t/a A S J TOY POODLES, Defendants CERTIFICATION I hereby certify that Notices of Praecipe for Entry of Judgment By Default for Civil. Action No. 99-9601 was mailed by first class mail to both Defendants Jack A. Sunderland and Alice R. Mountz, individually, on September 19, 1999 pursuant to Pa. R. C.P. 237.1. Both notices were mailed to the Defendants at 899 Emily Drive, Mechanicsburg, PA 17055. Attached as evidence of this mailing are copies of the U.S. Postal Service Certificate of Mailing issued by the United States Post Office in Carlisle, PA 17013. Kaghleen K. Shaulis, Esq. Pa. Bar ID. No. 37995 44 South Hanover Street Carlisle, PA. 17013 (717) 293-6655 Dated: October 1, 1999 n ; I Ie.ov anv1L1 ICATE OF MAILING tdA i III I I' I I I I ? ., I PULII ':I 191.. VII •.1 1 u11 YI'1h11A111.L II . A' 11 ? 11111 It JAl IUI IAI MAIL. UUI S FIDI F'c l':IMA511 11 Li I 99 X 11 „•.. C -?? /? 1701 w 1? , > I `i 1 00 c6v L P ; I orm'1811. rvlnl. 19111 u . rIC;IAI Sf MIA CERTIFICATE OF MAILING glAVWIJSfII1011UUP1 Iii.-AIN 1:11 i i irIAiiONAi t AI ub4laW0j-._ 110VI11 I0111N.dJNAN(1 I -1ta.. IIN •x ax j j 1161.Q-Ct . ? 1 ? `?D1 U 1 l S l`.ty< ? ? • ?lx L..L II III r- Ao ?? I C: 07%ZT I '? p i17? I"; h mm 3W rail, i!W9 --- -- Page 1 Citation/Title 722 A.2d 189, Allegheny Hydro No. 1 v. American Line Builders, Inc., (Pa.Super. 1998) *189 722 A.2d 189 ALLEGHENY HYDRO NO. 1 t/a Allegheny Hydro No. 8, L.P., Allegheny Hydro No. 1, t/a Allegheny Hydro No. 9, L.P., Appellees, V. AMERICAN LINE BUILDERS, INC., Chas. T. Main, Inc., CAI Enterprises, Inc., Lapp Insulator Company, and Scott & Scott Consultants, Appellees. Appeal of Chas. T. Main, Inc. Superior Court of Pennsylvania. Argued Oct. 8, 1998. Filed Dec. 14, 1998. Plaintiff filed complaint against corporation and others, alleging breach of contract and negligence. After entry of default judgment, the Court of Common Pleas, Armstrong County, Civil Division, No. 1997-0165, Valasek, J., denied corporation's petition to open judgment-. Corporation appealed. The Superior Court, No. 475 Pittsburgh 1998, Olszewski, J., held that: (1) trial court did not have to set forth its consideration of equities after analyzing case pursuant to three-part test; (2) defendant failed to demonstrate that it promptly filed its petition to open default judgment; and (3) defendant failed to demonstrate that it had a reasonable excuse for failing to file responsive pleading. Affirmed. 1. JUDGMENT <8=143 (2) 228 ---- 228IV By Default 2281V(B) Opening or Setting Aside Default 228k143 Excuses for Default 228kl43(2) Necessity for excuse. [See headnote text below) 1. JUDGMENT «153(1) 228 ---- 22BIV By Default 228IV(B) Opening or Setting Aside Default 228k153 Time for Application 228kl53(1) In general. Pa.Super. 1998. In general, a default judgment may be opened when three elements are Copyright (c) West Group 1999 No claim to original U.S. Govt. works Page 2 722 A.2d 189, Allegheny Hydro No. 1 v. American Line Builders, Inc., (Pa.Super. 1998) established: the moving party must (1) promptly file a petition to open the default judgment, (2) show a meritorious defense, and (3) provide a reasonable excuse or explanation for its failure to file a responsive pleading. 2. JUDGMENT (9=135 228 ---- 228IV By Default 228IV(B) Opening or Setting Aside Default 228k135 Nature and scope of remedy. Pa.Super. 1998. Petition to open a default judgment is an appeal to the equitable powers of the court. 3. APPEAL AND ERROR (°=982(1) 30 ---- 30XVI Review 30XVI(H) Discretion of Lower Court 30k982 Vacating Judgment or order 30k982(1) In general. [See headnote text below] 3. APPEAL AND ERROR 0982(2) 30 ---- 30XVI Review 30XVI(H) Discretion of Lower Court 30k982 Vacating Judgment or Order 30k982(2) Refusal to vacate. [See headnote text below] 3. JUDGMENT 0139 228 ---- 228IV By Default 2281V(B) Opening or Setting Aside Default 228k139 Discretion of court. Pa.Super. 1998. Decision to grant or deny a petition to open a default judgment is within the sound discretion of the trial court, and appellate court will not overturn that decision absent a manifest abuse of discretion or error of law. 4. APPEAL AND ERROR (9=982(2) 30 ---- 30XVI Review 30XVI(H) Discretion of Lower Court 30k982 Vacating Judgment or Order Copyright (c) West Group 1999 No claim to original U.S. Govt. works . 3 722 A.2d 189, Allegheny Hydro No. 1 v. American Line Builders, Inc., (Pa.Supe Page 1998) 30k982(2) Refusal to vacate. Pa-Super. 1998. Appellate court will not hesitate to find an abuse of discretion in a trial court's denial of a petition to open judgment when, upon appellate court's own review of the case, it has found that the equities clearly favored opening the judgment. 5. JUDGMENT 4&=163 228 ---- 228IV By Default 2282V(B) Opening or Setting Aside Default 228k163 Hearing and determination. Pa.Super. 1998. On motion to open default judgment, trial court did not have to set forth its consideration of equities and prejudices, where court analyzed case pursuant to standard three-part test and concluded that only factor that defendant satisfied was that it had a meritorious defense. 6. COURTS c8=26 106 ---- 106I Nature, Extent, and Exercise of Jurisdiction in General 106k26 Scope and extent of jurisdiction in general. Pa.Super. 1998. Abuse of discretion is not a mere error of judgment, but if in reaching a conclusion, the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by the evidence or the record, discretion is abused. 7. JUDGMENT (°=153(1) 228 ---- 228IV By Default 228IV(B) Opening or Setting Aside Default 228k153 Time for Application 228k153(1) In general. Pa.Super. 1998. Defendant failed to demonstrate that it promptly filed its petition to open default judgment, and thus it was not entitled to have judgment opened, where defendant did not file petition until 41 days after default judgment was entered, and delay was not excused by defense counsel's attempts to informally resolve matter by asking opposing counsel to voluntarily open judgment, in that petition was not filed until a month after defense counsel was aware that opposing counsel would not voluntarily open judgment. 8. JUDGMENT (9=153 (1) 228 ---- 228IV By Default Copyright (c) West Group 1999 No claim to original U.S. Govt. works 722 A.2d 189, Allegheny Hydro No. 1 v. American Line Builders, Inc., (Pa.Supe re 4 1998) 228IV(B) Opening or Setting Aside Default 228k153 Time for Application 228k153(1) In general. Pa-Super. 1998. In evaluating whether the petition to open default judgment has been promptly filed, court does not employ a bright line test, but focuses on two factors: (1) the length of the delay between discovery of the entry of a default judgment and filing the petition to open judgment, and (2) the reason for the delay. 9. JUDGMENT (&=143 (12) 228 ---- 228IV By Default 228IV(B) Opening or Setting Aside Default 228k143 Excuses for Default 228kl43(12) Negligent failure of counsel to plead. Pa.Super. 1998. Defendant failed to demonstrate that it had a reasonable excuse for failing to file responsive pleading, and thus it was not entitled to have default judgment opened, where for almost seven months after commencement of action defendant's in-house counsel failed to file a responsive pleading or act on notice of default, and defense counsel's assumption that opposing counsel would grant him extension of time to file response based on professional courtesy was unreasonable. 10. JUDGMENT <8 =92 228 ---- 228IV By Default 228IV(A) Requisites and Validity 228k92 Nature of judgment by default. Pa.Super. 1998. Nature of a default judgment is to impose responsibility upon a defendant who had the opportunity to defend the claim on the merits but has failed to do so. *190 Michael R. Libor, Philadelphia, for appellant. Robert L. Byer, Pittsburgh, for Allegheny Hydro, appellee. Before EAKIN, SCHILLER and OLSZEWSKI, JJ. OLSZEWSKI, J.: This is an appeal from a February 5, 1998 order denying Chas T. Main's ("Main") petition to open a default judgment. Main contends that the trial court erred as a matter of law and abused its discretion in denying the petition. We disagree and affirm the trial court's order. Copyright (c) West Group 1999 No claim to original U.S. Govt. works 722 A.2d 189, Allegheny Hydro No. 1 v. American Line Suilders, Inc., (Pa.SupePage r. 5 1998) *191 The relevant procedural history of this case is as follows. on February 7, 1997, Allegheny Hydro filed its original complaint against Main and four other defendants, alleging breach of contract and negligence. Allegheny Hydro filed its first amended complaint on March 7, 1997 and its second amended complaint on May 5, 1997. After Main failed to file an answer to the second amended complaint and to the prior complaints, Allegheny Hydro mailed a notice of default to main on July 11, 1997. On July 25, 1997, Allegheny Hydro filed its praecipe for default judgment. On September 4, 1997, Main filed its petition to open default judgment, which was denied by the court on February 5, 1998. This appeal followed. [1,1 [21 (31 [41 In general, a default judgment may be opened when three elements are established: the moving party must (1) promptly file a petition to open the default judgment, (2) show a meritorious defense, and (3) provide a reasonable excuse or explanation for its failure to file a responsive pleading. Alba v. Urology Assocs, of Kingston, 409 Pa.Super. 406, 598 A.2d 57, 58 (Pa.Super.1991). The standard of review for challenges to a decision concerning the opening of a default judgment is well-settled. A petition to open a default judgment is an appeal to the equitable powers of the court. The decision to grant or deny a petition to open a default judgment is within the sound discretion of the trial court, and we will not overturn that decision 'absent a manifest abuse of discretion or error of law.' Id. 598 A.2d at 58 (citing N.H. Weidner, Inc. v. Berman, 310 Pa.Super. 590, 456 A. 2d 1377, 1379 (Pa.Super. 1983)) (citations omitted). We will not hesitate to find an abuse of discretion in a lower court's denial of a petition to open judgment when, upon our own review of the case, we have found that the equities clearly favored opening the judgment. Provident Credit Corp. v. Young, 300 Pa.Super. 117, 446 A.2d 257, 261 (Pa.Super.1982). Upon our review of the three- part test and the equities in this case, we hold that the trial court properly denied Main's petition to open default judgment. [51 We first address Main's argument that the trial court erred as a matter of law because it strictly applied the three-part test for opening default judgment and did not explicitly set forth its consideration of the equities and prejudices. Relying upon our prior decisions, particularly Provident Credit Corp. v. Young, supra, Main argues that, instead of simply analyzing the case pursuant to the three-part test, a trial court must weigh the equities in deciding whether to open judgment. In the present case, the trial court concluded that Main satisfied only one of the three factors of the tripartite test. Although Main demonstrated that it has a meritorious defense, it failed to prove that it promptly filed the petition to open judgment and that it has a reasonable excuse for its failure to file a responsive pleading. In its written opinion, however, the court did not explicitly discuss its consideration of the Copyright (c) West Group 1999 No claim to original U.S. Govt. works Page 6 722 A.2d 189, Allegheny Hydro No. 1 v. American Line Builders, Inc., (Pa.Super. 1998) equities and balancing of the prejudices. Main argues that if a court fails to conduct such an analysis, it has committed an error of law. Appellant's interpretation of the law on this matter is unsupported. In Young 446 A.2d at 264, we recognized the following: Without question, in many cases where we have found that one of the three requirements for opening a judgment was not met we have stopped without considering the arguments made with regard to the other two. It is difficult, however, to reconcile this approach with the many other cases that emphasize the equitable nature of the decision whether to grant a petition to open, and the importance of balancing the prejudice to the two sides. The question is, Can a court make an "equitable determination" of what is "reasonable under the circumstances" without considering all of the circumstances of the particular case? we think not. Id. (citations omitted). Young involved an appeal from a trial court decision where the lower court, having decided that the default and delay were not excused, never considered appellant's argument that she had a meritorious defense. Id. We noted that [t]he merits of a defense may have some bearing on the question of whether a petition *192 to open was promptly enough filed. The more plainly meritorious the defense, the more heavily the equities will incline in the petitioner's favor, which is to say, the more appropriate it may be to excuse some delay. Id Contrary to Main's assertions, our statements in Young do not support the argument that when a trial court has applied the tripartite test and has fully considered all of the circumstances of the case, it has nonetheless committed an error of law because it did not specifically set forth its consideration of the prejudices and equities. In Young, we recognized the importance of the tripartite test: The test will often provide a ready determinatior >--'a navigator's "quick fix"-- of where the equities lie. For example, in a case where no attempt has been made to explain the default or delay, or where, in an assumpsit case, no defense has been pleaded, or only one clearly without merit, it is difficult to imagine that the equities would favor opening the judgment. But where some showing has been made with regard to each part of the test, a court should not blinder itself and examine each part as though it were a water-tight Copyright (c) West Group 1999 No claim to original U.S. Govt. works 722 A.2d 189, Allegheny Hydro No. 1 v. American Line Builders, Inc., (Pa.SupePage r. 7 1998) compartment, to be evaluated in isolation from other aspects of the case. Instead, the court should consider each part in light of all the circumstances and equities of the case. Only in that way can a chancellor act as a court of conscience. Id. (emphasis added). Similarly, in other cases, we emphasized the importance of the tripartite test in the court's analysis of the circumstances and equities. In Duckson v. Wee Wheelers, Inc., 423 Pa.Super. 251, 620 A.2d 1206, 1212 (Pa.Super.1993), we examined the circumstances of the case within the framework of the tripartite test and concluded that "[b]ased on the foregoing analysis, we hold that the overall equities in this case warrant opening the default judgment." In Castings Condominium Assn, Inc. v. Klein, 444 Pa.Super. 68, 663 A.2d 220, 225 (Pa. Super. 1995) , we refused to weigh the equities in the defendant's favor and reiterated that a court cannot open a default judgment based upon equities when the defendant has failed to establish all three factors of the test. This line of cases demonstrates that the three-factor test is a framework within which the trial court is to conduct its equitable analysis. In the present case, the trial court fully evaluated the three factors of the test and considered all of the relevant circumstances as they related to those factors. The court concluded that although Main has a meritorious defense, it failed to make an adequate showing that it promptly filed the petition and that it had a reasonable excuse for the default. The trial court did not err as a matter of law for failing to conduct a separate discussion of the equities when doing so would only reiterate the circumstances and facts considered by the court. [6) Main next argues that the trial court abused its discretion in denying its petition to open default judgment. " 'An abuse of discretion is not a mere error of judgment, but if in reaching a conclusion, the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by the evidence or the record, discretion is abused.' " St. Vladimir Ukrainian Orthodox Church v. Preferred Risk Mut. Ins. Co., 239 Pa.SUper. 492, 362 A.2d 1052, 1056 (Pa. Super. 1976) (quoting Mielcuszny v. Rosol, 317 Pa. 91, 176 A. 236 (Pa.1934)) In the present case, we find that main failed to demonstrate that it promptly filed its petition and that it has a reasonable excuse for not filing a responsive pleading. Furthermore, we find that the equities do not support the opening of the judgment. Thus, the trial court did not abuse its discretion. Allegheny Hydro filed its original complaint on February 7, 1997. According to Main, shortly after being served with the complaint, its in-house counsel informed counsel for Allegheny Hydro that it intended to retain the services of an outside law firm to file an answer to the second amended complaint, but it Copyright (c) West Group 1999 No claim to original U.S. Govt. works 722 A.2d 189, Allegheny Hydro No. 1 v. American Line Builders, Inc., (Pa.Super.e S 1998) first needed to resolve a conflict of interest issue with the firm. According to Main, counsel for Allegheny Hydro did not object to its counsel's proposed *193 schedule. The trial court found that no extension was granted or agreed to by Allegheny Hydro's counsel. Trial Court Opinion, 2/6/98, at 9. On April 17, 1997, the attorney assigned to Allegheny Hydro's case left the employment of the law firm representing Allegheny Hydro and another attorney was assigned to handle Allegheny Hydro's case. On May 5, 1997, Allegheny Hydro filed its second amended complaint, which is the complaint upon which the default judgment was entered. On July 11, 1997, Allegheny Hydro mailed a notice of default to Main, stating that unless Main acts within ten days from the date of the notice, by July 21, 1997, a default judgment will be entered. Main's counsel received the notice of default on July 15, 1997, the day on which he was leaving the country for a business meeting. That day, Main's counsel telephoned the attorney for Allegheny Hydro from the airport to discuss his misunderstanding as to when the answer was due. Main's counsel asked opposing counsel for an eleven-day extension of time to file an answer because he was leaving the country. The attorney for Allegheny Hydro informed Main's counsel that she had to check with her supervising attorneys and her client before approving any extension of time, and that she would leave a voice-mail message for him concerning the matter. The trial court found that Allegheny Hydro's counsel left Main's counsel voice-mail messages on July 16th and 17th and that Main's counsel knew as of July 17, at the latest, that Allegheny Hydro would not agree to an extension of time. Trial Court opinion, 2/6/98, at 6-7. Allegheny Hydro filed a praecipe for default judgment on July 25, 1997. After receiving the praecipe for default judgment, Main's counsel telephoned Allegheny Hydro's counsel on July 31, 1997, and again on August 1, 1997, requesting that Allegheny Hydro voluntarily open the default judgment. On August 4, 1998, Main's counsel sent Allegheny Hydro's counsel a letter requesting that the default judgment be voluntarily opened. On August 4, 1998, Allegheny Hydro's counsel telephoned Main's counsel and told him that there were no plans to voluntarily open the default judgment, but she would consult with her supervising attorney and would call him back if they changed their position. On August 8, 1997, Allegheny Hydro's counsel left Main's counsel a voice-mail message stating that Allegheny Hydro would not voluntarily open the judgment and faxed a letter setting forth the denial on August 14, 1997. Main retained the legal services of a law firm in late August of 1997. An attorney from that firm faxed a letter to Allegheny Hydro's counsel on August 29, 1997, requesting that she voluntarily open the default judgment. Once again, counsel for Allegheny Hydro denied the request. Main finally filed its petition to open default judgment on September 4, 1997. At that time, no other defendant had filed an answer to the second amended complaint, and no discovery had taken place. The only matters pending before the trial court were the co-defendants' preliminary objections. Copyright (c) West Group 1999 No claim to original U.S. Govt. works 722 A.2d 189, Allegheny Hydro No. 1 v. American Line Builders, Inc., (Pa.Supe re 9 1998) [7] [8] Based upon these facts, the trial court concluded that Main did not timely file the petition to open judgment. In evaluating whether the petition has been promptly filed, "[the] Court does not employ a bright line test.... [The Court focuses] on two factors: (1) the length of the delay between discovery of the entry of a default judgment and filing the petition to open judgment, and (2) the reason for the delay." Quatrochi v. Gaiters, 251 Pa.Super. 115, 380 A.2d 4.P4, 407 (Pa. Super. 1977) . Main did not file its petition to open judgment until forty-one days after the default judgment was entered. We have held in the past that delays of less than forty-one days have been untimely. See B.C.Y., Inc. Equipment Leasing Assocs, v. Bukovich, 257 Pa.Super. 121, 390 A.2d 276, 278 (Pa.Super.1978) (twenty-one day delay is not prompt); Xatgimisios v. Dave's N.E. Mint, Inc., 251 Pa.Super. 275, 380 A.2d 485, 485 (Pa.Super.1977) (thirty-seven day delay is not prompt). In cases where we have found there to be a prompt filing of the petition, the period of delay was generally less than one month. See Alba v. Urology Assocs. of Kingston, 409 Pa.Super. 406, 598 A.2d 57, 58 (Pa.Super.1991) (fourteen-day delay is timely) ; Fink v. General Accident ins. *194 Co., 406 Pa.Super. 294, 594 A.2d 345, 346 (Pa.Super.1991) (five-day delay is timely). The trial court properly considered the reasons for the delay and found them to be unreasonable. Attempts to informally resolve the matter by asking opposing counsel to voluntarily open judgment is not a reasonable excuse for the forty-one day delay. See Pappas v. Stefan, 451 Pa. 354, 304 A. 2d 143, 146 n. 3 (Pa. 1973) By August 8, 1997, Main's counsel was aware that opposing counsel would not voluntarily open judgment. Nevertheless, Main did not file its petition until almost a month later, on September 4, 1997. It was unreasonable for Main's counsel to not file a petition to open judgment for almost a month after receiving a denial from opposing counsel to his request to voluntarily open judgment. [9] Additionally, Main has failed to demonstrate that it has a reasonable excuse for failing to file a responsive pleading to the second amended complaint.; Main's failure to file a responsive pleading within the prescribed time period and to not take proper action after receiving the notice of default can only be ascribed to the carelessness of Main's in-house counsel. Almost seven months after Allegheny Hydro commenced the action, Main's in-house counsel failed to file a responsive pleading. Further, the default judgment was not entered until more than two months had passed after the filing of the second amended complaint. Main attempts to excuse its failure to file a responsive pleading and its failure to act on the notice of default by arguing that its in-house counsel was out of town and mistakenly believed that Allegheny Hydro's counsel had granted it an extension of time. The trial court found that at no time did Allegheny Hydro's counsel explicitly grant Main's counsel an extension. Instead, Main's counsel assumed that opposing counsel would grant him the extension based upon professional courtesy. Such an assumption was unreasonable given that Allegheny Copyright (c) West Group 1999 No claim to original U.S. Govt. works 722 A.2d 189, Allegheny Hydro No. 1 v. American Line Builders, Inc., (Pa.Super. 10 1998) Hydro's counsel did not agree to an extension. Allegheny Hydro's counsel had no legal obligation to grant an extension of time and, contrary to Main's assertions, we find that Allegheny Hydro is not at fault for Main's delay. Furthermore, while the Pennsylvania Rules of Civil Procedure require a written agreement to extend the time for fling a responsive pleading, 42 Pa.R.C.P. §§ 201 & 248, Main's counsel never obtained such a written agreement. In conclusion, Main's excuse is nothing more than the carelessness and unreasonable assumptions of its counsel. Our past decisions are instructive on this matter. In Castings Condominium Ass'n, Inc. v. Klein, 444 Pa.SUper. 68, 663 A.2d 220, 224 (Pa.Super. 1995), appellant's counsel sent a letter to appellee's attorney expressing his assumption that appellee's counsel would not seek a default judgment. Appellee's counsel did not respond to the letter. We held that counsel's assumption was unwarranted since opposing counsel never affirmatively responded to his request that a default judgment not be taken and there was thus no meeting of the minds. Id. Similarly, in McEvilly v. Tucci, 239 Pa.SUper. 474, 362 A.2d 259, 262-63 (Pa. Super. 1976) , counsel for defendants sent plaintiffs a letter expressing his assumption that plaintiffs would not require a responsive pleading. Plaintiffs did not respond to the letter and took a default judgment against defendants. We found that defendants' excuse for not filing a responsive pleading was unreasonable and held: [T]he evidence in the present case indicates that [defendants] . unjustifiably relied upon [plaintiffs'] ... lack of response to the letter and their mistaken belief that [plaintiffs] ... did not intend to pursue their rights by taking a default judgment. The lower court did not abuse its discretion in deciding that [defendants] ... did not satisfactorily explain their failure to file an answer to the complaint. Id. 362 A.2d at 263. Likewise, the trial court in this case did not abuse its discretion in deciding that appellant failed to make a showing on two elements of the tripartite test. Contrary to appellant's assertions, its counsel's failure to file responsive pleadings was not an error that indicates an oversight rather than a deliberate decision not to defend, and thus the failure to file is not excusable. Set, Johnson v. Yellow Cab Co., 226 *195. Pa.SUper. 270, 307 A.2d 423, 424 (Pa. Super. 1973) . We have held that an attorney's failure to file an answer because he mistakenly assumed opposing counsel granted an extension was not mere oversight. See McEvilly v. Tucci, 239 Pa.Super. 474, 362 A.2d 259, 262 (Pa.Super.1976). Thus, the trial court was correct in finding that appellant failed to prove two elements of the tripartite test. [10] Finally, Main argues that the equities favor opening the judgment. According to Main, at the time that the trial court was reviewing the petition, Copyright (c) West Group 1999 No claim to original U.S. Govt. works Page 11 722 A.2d 189, Allegheny Hydro No. 1 v. American Lane Builders, Inc., (Pa.Super. 1998) Allegheny Hydro would not have suffered prejudice if the Judgment was opened because no discovery had occurred and no answers were file. Main, however, will be prejudiced by the court's failure to open the default judgment because it will be responsible for a one-million-dollar judgment which, had they defended on the merits, they would likely have been found not liable. We find Main's argument unpersuasive. The nature of a default judgment is to impose responsibility upon a defendant who had the opportunity to defend the claim on the merits but has failed to do so. See Kraynick v. Hertz, 443 Pa. 105, 277 A.2d 144, 147 (Pa.1971) . Based upon the factors and circumstances as discussed above, we find that the equities do not dictate that we open the default judgment. Order is affirmed. Copyright (c) West Group 1999 No claim to original U.S. Govt. works COMMONWEALTH OF PENNSYLVANIA NOTICE OF APPEAL COURT OF COMMON PLEAS FROM JUDICIAL DISTRICT DISTRICT JUSTICE JUDGMENT COMMON PLEAS N. 9 9 _. 0(14 L / ! NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice an the date and in the case mentioned below: c r" CITY f, . ,._ .i 1-:-L 1 66 uASa STATE 1 N piei,Ytl 1 .}- l c i CV 19 <,c I -1 _ '1'I LT 19 ,MS voce will De sgnea UNLT when this notation is required under Pa R.C.P.J.P. No 10081L This Notice of Appeal, when received by the District Justice, will operate as a SUPERSEDEAS to the judgment for possession in this case a 'r If appellant was CLAIMANT (see ft. R.C.P.J.P. 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 (This section of form to be used ONLY when appellant was DEFENDANT (see Pa. R.C.P.JP. 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 Enter rule upon N oppolae(s), to file a complaint in this upped Name of appellants) (Common Pleas No ) within twenty (20) days after service of rule w suffer entry of judgment of non pros. RULEt TO %? l' I : L d 1 I /i spleture of apheant or his albeley a;oars Name of appelpeysl , appellee(s). (1) 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 mail. (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS WILL BE ENTERED AGAINST YOU. (3) The.date of service of this rule if service was by mail is the date of mailing. n C? Date: Lc..?? :?C) ,1 951. _ !'til//r.2•?.v..? V/? elpen.e of 5 AOPC 312.11 COURT FILE z PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT ( This proof of survlce MUST lit' FILED WITHIN TEN I10) DAYS AFTER f lmg rhu nonco of appoal Check applicable boxaS,1 COMMONWEALT OF VENSYLVANIA COUNTY OF _C.Cr-?f-?/ AFFIDAVIT- I hereby swear or affirm that I served 4y" ( ? L7 e copy of the Nohce e of Appeal. Common Ple:lS Na upon the Dy'trict Justice designated therein on (dale of serv;co) ? by personal ser<ice ?y (certified) (registered) mail, sender's receipt attached hereto. and upon the appelli:e. n,anml ;,?'-/f.-S--?t?????t free YNuU?? , on -?f- ?-- -- 19- ? by personal service, RXy (cirlitied) (registered) mall, sender's receipt attached hereto. ?; furth.rthatlsenvrd the Rule to Fdea Complain accompany, rig t he above Notice of Appeal upon the appellee(s)to whom the Rule was addressed en 19Q? ? by personal service []V,-l5'y-(certified) (registered) mail, sender's receipt attached hr.reto SWORN (AFFIRMED) AND SUBr'CRIBED BEFORE MME ( 11 0 ?i ) Sr nature of alliant $iy0 6v0 r Wh a; iX101o well offal"', rru<io TWO CI ollicin! My Commss;on ovp;r,; a- t_7 1 Noranal Seal -, Julie D. Shannon. Notary r nu:r i% Silver Spring Twp• Cumberlarrl r- .-• a My Commission Expire; Ji'n, ' < Z 322 229 185 US Poslal Service Receipt for Certified Mail No Insurance Coverage Provided. Do not use for International Mail /See reverse) `nl la T YY\ ;ltl e_ Slr 1 Num r I I-L Pose Office, State, 6 ZIP Cade L6 Md?1Ed Poslage $ .33 Cedilied Fee ` Lto Special Delivery Fee Restricted Detivary Fee Relum Re Whore rvem I. Z 7 7 Retire Dale, & 'S TOT11 o g s Postma PS =i r N rn rn g li a , 1 L i 1 t ICHRISTA MALONE, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY,PENNSYLVANIA Plaintiff, Va. NO. 99-4601 CIVIL TERM JACK A. SUNDERLAND AND ALICE R. MOUNTZ, t/a A&J TOY POODLES, CIVIL ACTION-LAW Defendants. PRAECIPE TO THE PROTHONOTARY OF ABOVE COURT: Please file the enclosed Verifications and attach them Ito the Defendants' Answer filed for record in the above titled cause on October 4, 1999. Kindly return a "clocked" copy of the Verification to the undersigned's attention. A self-stamped, addressed envelope is enclosed for your use. Date: October 15, 1999 RICCI & TANEFF By: Taneff, Esq Sup. Ct. No. 63777 4219 Derry Street Harrisburg, PA 17111 (717) 564-5833 Attorneys for Defendants >;J4 %4S Ref:h:\x\c\mount\alice\doc008.wpd rs i {rah VERIFICATION The undersigned, verify that the statements made in the Answer to Plaintiff's Complaint are true and correct to the best of my knowledge, information and belief. We understand that any false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904 related to unsworn falsification to authorities. IDated: October -(Z -, 1999 ?? P 7?.. D DEEF15 PENDANT ALICE R. MOUNT , JAL( A. SUNDERLAND, DEFENDANT Ref:h:\x\c\mount\alice\veri.wpd CERTIFICATE OF UJM I hereby certify that a copy of the foregoing Defendants- Praecipe was sent via first class, U.S. Mail, postage prepaid, this 15th day of October, 1999 to the following person(s) at the address(es) set forth below their respective names: (1) Kathleen K. Shaulis, Esq. 44 South Hanover Street Carlisle, PA 17013 RICCI & TANEFF By: Paul aneff, Esq.! Sup. Ct. No. 63777 4219 Derry Street Harrisburg, PA 17111 (717) 564-5833 Attorneys for Defendants Ref:h:\x\c\mount\alice\csl-wpd EE M -7 H cv, O? FL H ? ?J ?Ltl H !?1? rn U ?- _,• Z ??- ?.: ; ? 1:? ?- I L -? ?. _ ??_? 1 ?''( •?l ??) 1 ? (_li \L •? ('?' ? ' '`IIl rv _ ai ?? <.? u? U 4+ ?? 1 I ??? .. •• CHRISTA MALONE, Plaintiff Vs. JACK A. SUNDERLAND AND ALICE R. MOUNTZ t/a A 6 J TOY POODLES, Defendants . IN THE COURT OF COMMON PLEAS OF . CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-4601 CIVIL TERM NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following papers, 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, PA 17013 TELEPHONE: (717) 249-3166 e CHRISTA MALONE, Plaintiff VS. JACK A. SUNDERLAND AND ALICE R. MOUNTZ t/a A & J TOY POODLES, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-4601 CIVIL TERM COMPLAINT AND NOW, comes the Plaintiff, Christa Malone, by her attorney, Kathleen K. Shaulis, Esq. and respectfully represents as follows: 1. Plaintiff, Christa Malone, is an adult individual who resides at 211 Hall Drive, Salisbury, Maryland 21804. 2. Defendant is Jack A. Sunderland is an adult individual and is the Owner/Manager of A & J Toy Poodles. 3. Defendant Alice R. Mountz is an adult and is the Owner/ Proprietor of A & J Toy Poodles. 4. A and J Toy Poodles is a fictitious name registered with the Pennsylvania Department of State. Both Defendants are listed on the fictitious name registration as owners and the address on this Certificate is 115 South Hanover Street, Dillsburg, Pennsylvania 17019. Other addresses used by A & J Toy Poodles are: A and J's Toy Poodles Rt. 15 and Range End Road Dillsburg, PA 17019 and A and J's Toy Poodles Owner- Jack A. Sunderland P.O. Box 367 Mechanicsburg, PA 17055 and A and J's Toy Poodles 899 Emily Drive Mechanicsburg, PA 17055 It is noted that the latter address was the one used by the Defendants in filing the appeal from the decision of the district justice. 5. In response to an advertisement that appeared in the Baltimore Sun on the internet, on or about February 22, 1999, Plaintiff, her husband Brent Malone and her mother Mary E. Mannel drove to 899 Emily Drive, Mechanicsburg, Pennsylvania 17055 to purchase a teacup poodle from Defendants. 2 6. Plaintiff and her husband were shown six (6) puppies, one of which was a female, black teacup poodle. 7. Plaintiff and her husband were shown the mother of the puppy but not the father of the puppy. B. Plaintiff and her husband selected a black puppy born on February 1, 1999 and gave Defendant Mountz a personal check #468 on February 22, 1999 in the amount of $400 as a deposit for the puppy that they named Bug. A copy of the cancelled check is attached hereto and incorporated herein as Exhibit A. 9. Plaintiff and her husband did not take delivery of the puppy at that time because Defendant Mountz told them that the puppy was too young and had to gain more weight before it could leave. 10. From February 20, 1999 through March 20, 1999, Plaintiff made three 8 hour round trips from her home in Maryland to visit the poodle to ensure "bonding" with the dog and captured these visits on videotape. 11. On or about March 20, 1999 Plaintiff and her husband gave Defendant Mountz a personal check #0384 in the amount of $448, $400 of which was the remaining purchase price and $48 of which was the 3 Pennsylvania state sales tax. A copy of the cancelled check is attached hereto and incorporated herein as Exhibit B. 12. Before leaving Defendant's Mechanicsburg location with the puppy, Plaintiff's husband had Defendant sign a paper guaranteeing the right to return the puppy if their veterinarian gave the puppy an unsatisfactory bill of health. 13. Plaintiff stated that the paper was unnecessary because A & J Poodles guaranteed their dogs for one year, but she signed it anyway. 14. On March 24, 1999, Christa took the teacup poodle to her veterinarian, Dr. Michael McAllister, VMD, McAllister's Veterinary Service, Salisbury, Maryland for an examination to ensure a good bill of health. Plaintiff was charged $20.00 for this visit. A copy of the cancelled check is attached hereto and incorporated herein as Exhibit C. 15. Dr. McAllister told Plaintiff that the puppy's exact health problem involving a bald spot on its hip could not be determined without expensive tests and, therefore, based on the poodle's poor muscle tone in her rear legs and the abnormal skin located on her hip, recommended that Plaintiff return the puppy to Defendants. Attached hereto 4 and incorporated herein as Exhibit D is a copy of Dr. McAllister's April 5, 1999 letter detailing his findings and recommendation. 16. Based on the advice of Dr. McAllister, Plaintiff's husband called Defendants and told them they were returning the poodle. Defendants told Plaintiff's husband over the telephone that this would not be a problem. 17. on March 25, 1999, Plaintiff and her husband returned the poodle to Defendants and asked for a full refund. 18. Defendants refused to give Plaintiff a refund for the following reasons: a. Defendants said that the second check for $998.00 had not cleared the bank and they did not know if the check was good. b. Even though the Plaintiff brought a bill from their veterinarian, Plaintiff had not brought a letter from their veterinarian indicating an unsatisfactory bill of health and Defendants would not call the veterinarian. C. Defendants accused the Plaintiff and her husband of abusing the poodle while under their care and insisted that the poodle be seen by their veterinarian. 5 their care and insisted that the poodle be seen by their veterinarian. d. Defendants only wanted to exchange the teacup poodle puppy for a toy poodle puppy which is a larger dog. 19. After a 45 minute debate, Plaintiff's husband requested a refund of the $400 down payment check that had cleared the bank. 20. Again, Defendants refused and threw Plaintiff and her husband out of the house stating that they would call the police. 21. On March 27, 1999, Plaintiff received a phone call from Defendant to let her know that the teacup poodle was fine and told her that she would be receiving a check in the mail by the end of the week. 22. Plaintiff's telephone number is (410)742-9507. 23. From April 2, 1999 until April 6, 1999 Plaintiff telephoned the Defendants at (717) 796-0781 concerning the refund at least nine times and was only able to reach Defendants' answering machine. A copy of Plaintiff's long distance telephone bill is attached hereto and incorporated herein as Exhibit E. 6 24. Because of her repeated failed attempts to reach the Defendants, Plaintiff decided Defendants were screening their calls by a call identification device or by way of the answering machine. 25. Finally, Plaintiff had her grandmother Larrian Lowe a/k/a Larrian W. Kilborne whose address is P.O. Box 493, Reistertown, Maryland 21136, telephone the Defendants at 5:42 p.m. on April 11, 1999 and immediately the telephone call was picked up by the Defendant Mountz. A copy of Plaintiff's grandmother's long distance telephone calls is attached hereto and incorporated nerein as Exhibit F. 26. Defendant Mountz told Plaintiff's grandmother that they had several poodles for sale including a three month old, female black tea cup poodle for sale for $800.00. 27. The dog that was offered for sale by the Defendant Mountz to Plaintiff's grandmother is the very same poodle that was returned by Plaintiff and her husband and for which they had not received a refund. 28. The whereabouts and/or the condition of the puppy purchased by the Plaintiff and returned for a full refund are unknown to Plaintiff and her husband. 7 29. To date, Plaintiff has not received a refund of the purchase price of $898.00 for the puppy from the Defendants. 30. At the time Plaintiff and her husband returned the puppy to the Defendants, they returned all of the paperwork that they had in their possession to Defendants in good faith, relying on the Defendant Mountz's representation that they would receive a full refund of the money paid for the puppy. 31. On June 1, 1999, Plaintiff filed a civil complaint against both Defendants in the Office of the District Justice, Mag. Dist. No. 09-3-05. 32. On July 1, 1999, judgment was entered for Plaintiff in the amount of $848.00 plus costs of $73.50 against both Defendants at Docket No. CV- 0000137-99 by the Honorable Gayle A. Elder, District Justice. A copy of the judgment is attached hereto and incorporated herein as Exhibit G. 33. Because Plaintiff and her husband returned all of the paperwork to Defendants, supporting documentation had to be obtained from the district justice's file for purposes of filing this complaint. 8 34. This documentation is attached hereto and incorporated herein as follows: (a) Exhibit H - Copy of the Purchase order dated March 20, 1999 for the puppy. (b) Exhibit I - Copy of the receipt dated March 20, 1999 signed by Defendant Mountz promising a full refund if the vet found any congenital disorder or infection disease was discovered. (c) Exhibit J - Copy of the puppy's health and immunization history given by Defendants to Plaintiff and her husband when they took delivery of the puppy on March 20, 1999. (d) Exhibit K - Copy of Dr. MacAllister's billing invoice dated March 24, 1999 for his examination of the puppy named "Bug." 35. Defendants advertise their puppies for sale through Maryland and Pennsylvania newspapers and also advertise on the Internet. 36. Defendants' business is not licensed by the Pennsylvania Department of Agriculture or the United States Department of Agriculture as a kennel. 37. Defendants are licensed by the Pennsylvania Department of Revenue for the collection of the 6'Y, state sales tax. 9 38. A business that engages in the sale of puppies is required to collect the 6',', state sales tax on each sale of a puppy. 39. Whether or not Defendants' business is licensed as a kennel, Defendants did not comply with the provisions of 73 P.S. § 201-9.3 relating to dog purchaser protection so that its limits of liability would not be applicable to this cause of action. 40. Because of Defendants' outrageous conduct in retaining the puppy and not issuing a refund to Plaintiff, Plaintiff engaged in an unfair and deceptive act in the conduct of their business as defined in 73 P.S. §201-2 (xxi). 41. Because of Defendants' outrageous conduct in retaining the puppy and not issuing a refund, Plaintiff incurred the following damages: (a) $848.00 purchase price of the puppy; (b) $20.00 in veterinary fees; (c) $73.50 in costs at the district justice level; (d) $13.18 for telephone calls; (e) $58.30 for a motel room for the hearing at the district justice level; 18 (f) $15.00 in toll charges for six round trips between Salisbury, Maryland and Mechanicsburg, Pennsylvania; (g) $358.20 in gas/automobile expenses for six round trips; (h) $96.00 in food expense for 2 people / 2 meals for six round trips; and (i) $140.00 Plaintiff's lost wages for the time spent at the district justice hearing. 42. Because of Defendants' outrageous conduct in retaining the puppy and not issuing a refund to Plaintiff, Plaintiff is entitled to recover up to three times his actual damages pursuant to 73 P.S. §201-9.2 along with court costs and reasonable attorneys fees. 43. Moreover, because Defendant's appeal is frivolous and without basis in law or fact, Plaintiff is entitled to reasonable attorneys fees pursuant to 42 P.S. §2503. 44. Plaintiff has agreed to pay Kathleen K. Shaulis, Esquire $100 per hour up to a maximum of $500.00 to pursue this claim. WHEREFORE, Plaintiff prays this Honorable Court to enter judgment in her favor and against Defendants for three times the actual damages as specified in paragraph 41; attorney's fees; interest; and court costs. In the alternative, Plaintiff prays this Honorable Court to enter judgment in her favor and against Defendants for actual damages as specified in paragraph 41; attorney's fees; interest; and court costs. Respectfully submitted, Kathleen K. Sha'ulis, Esq. Attorney for Plaintiff 44 South Hanover Street Carlisle, PA 17013 (717) 243-6655 I.D. No. 37445 Dated: August 20, 1999 12 6 tNOe 1911 BRENT W. MALONE 211 HALL DRIVE SALISBURY, MD 21804 ITEM COPY REQUEST r? ?D 81_ixae21 488 r 0iago " C?v a A R' • ?r? .?awEa ar?;E?r7rraa?,rt lYi1Q_ a?'?' ^ Je 1:0 5 2 0 i 5284048 o i n 30 5606M r•00000?0000?' BRENT W. CHRIBTA L 0079 CAM?OIK EDEN, MG pm. 74g. Ii !'AY t0>»! 1 a.; ( 17 ' dooa io 6 28 0536?> w v os c' '• w ~ 0 a. 16457 2 Q2? g - 02 f .2,2412 7r? n:%?.•: lx + A e w 1' i ? - w a4-i7 I.ur a Ext+ii3 iT- E Zd WdPT:ZO 96ST ST 'dn : 'ON Y,ti.J woae Z abed silneyS .N uaalyleH ? CD 11IDa woji uieSC:60 66-81-BnV paAlaoaa 1? IN ,I 8RlNT W. MALDNE 911 NALL DRIVE SALISBURY, MO 91804 i ITEM COPY REQUEST 1071 ?? va Y.. \ v / f i s ' IT9YV .I?y M' .••..? v .r. r1u ....? ..r r ..V Vr?r.'...YV....`r`- \ w?W..w./ r i BRENT W. MALDNE E? CNRIBTA L MALONE Y r ?oei Isa» 384 Soto CAMPrROUNC RCA0 ? N, ?t WEN, mo alga aarrorHl ne aa ,i I s ' as pp t)pg a 3s?aizt • '.i?Lff i'S Ta'B`'?•81:WLY'CAlI4ri 1:05 1 88x0384 Oi 263 O56O61? r•OOOO04 4BOO? 984 449.00 ! y ',+DO44OO00 E + (2l 0354994 y 2!0354994 c c; £ .?:rt t. I A - ca >v o is RCpC ba 1 a . ?. F • -. ?: 0520-• W 7 -g,• .: - ^? - _ . • , , i L ' . • 4 d CXI{1 g?T Id WdbI:ZO 866T ST %IDS : 'ON XC'd : WO&A I abed silneyS H uaajyleN « C0 11103 woj,; weSC:60 66-81-6ny p8AI030H LuLZ FBR ENT W. MALONE ACCOUNT NO. 128306808 PAGE: / a. mu ? 1 .r91OOr?1?Y161RP6a = Fw, ?f 1 noauaffem] mao r wwi r ? ?Y?T]\aFi.?U? qM nb?s gsba,? *ly, w]C? Mr°1257'^^'u"w ' w3.fl?L?L.O.. r•_ y+..?• ? : e06l30 N0a6. f0if Of?ls01a0iw /00000!0000/, 5 1113199 1 0,00 E) t4191T Q. e-. 9Ta 91 O6ed 'ON TGU sIIneys 'N U08 yleN ? CO 11130 woa{ : WONJ weLZ:60 66-8L-6ny PBAIG09H McAllistei's Veterinary Service MICHAEL McALLISTER, VMD 742-3935 o ?? iPrr.?,' M6-4?otC en ??3?/4Q, Jae. / ??" -4 af 124f A-rI7??w S/cre A, e ?r%7 r?0od9,a gyl< <?-r - - EW I B 1 235 DYKES ROAD, SALISBURY, MARYLAND 21801 Sid wd80:ZO B66I SS 'day : 'ON XFJd woad 91 abed silneyS .N uaalyleN , 60 11100 woj1 weLZ:60 66-81-6nV paniaoaa Received Aug-19-99 10:35am FROM from CCITT G3 ? Kathleen K. Shaulis Pa9Q 1 FAX N0. Sep. 16 1998 03:11PM P1 M m L e C" Of OI « C OC CO G C r O_ Da 0- ? a. - C H ?N 1l1 C b ? NI O0 MM IA A ? CV) Cn M N7 ?' { N yy NN N N ^ at O e i N O M S? N h r r? m ?? om 071 a [! i Y '. co o 0 0 O L 9 0 40 A l yn M 1?+1 1?N Fq Ye o I-`Q ? ',w ? N N hO t O Z'M U A p Md ? w? wN c ?U LGQ G m !IIi r. a K O d A ?n K¢ u ? e e W • CM F pp µ{{1? 0 p 7 N V u F 0 • NK?. G. o a N 6 ? a %e TO . IP Sp ? p/? M I?Nj A C 7 e ¦ N a s ExttoblT E 0. M .- Received Aug-19-99 10:35am FROM : Ql OI r d L o? IA r O 117 O? N ?O 4 r v mt F i Y r w S w A 1(I f 0 N U V O Y !D w ? w w o s Y m a a : . ., i 00 4 { ? r S . o,,- u a v ? ? h `? i. ww rN W N c M1 i . M1 ' r ` r •? N 'P{ Y. 1 > Y P M1h tenp; GN V C7 c 7 C7 - ?y ~ • a35 ? ? ? 8 ,, . .? yid .rJ?uLL_ 7tL -r=. d a aa w NN? ' N N 4 from CCITT G3 , Kathleen K. Shaul is page .2 FAX 140. Sep. 16 1998 03:11PM P2 la r a C" O1 Ol r L s° CI 1" WOf &N 4n IC i? M e d Received Aug-19-99 10:35am FROM CD w m 0 CL i Qi La n r A O ww 109 a^ ?,w me P. 03.12PM P3 m 1O from CCITT G3 Kathleen K. Shaul is page '3 FRX NO. Se 16 1998 a e 'a i e. a, 0) rn r qT i LL! h. {xyOS ON N IDC3 F? a qp e r • «e e N m (.rI V 9 D N g ??NNm:-NW?L'J r N N M Received Aug-19-99 01:llpm from 4105267687 4 Kathleen K. Shaulis page 1 08/19/1999 13:17 4105267697 PARCEL+CHERRY VALLEY PAGE 01' Cherry Valley Plaza, Reisterstown, MD 21136 Phone (410) 526-6600 Fax (410) 526-7687 Fag Transmittal ?'P. w V k'F'l a4- Cn5-F TO: ?Grai-h l Eef, Ksl,? ul.? FAX #: 717-2 f3-66/ .FROM: C K R? gk A YYl n n n e L m A Lo n e- -DATE: (:?Uq . 19 - t 9 9 9 NUMBER OF PAGES: I (Including Cover Page) COMMENTS: M tOCOM. Aoot1410w83Jt84b4N961 44 May 14 1999 Ca t rom ones, continued.- Amount Place 9466 Number Data Time Rate Min $ .05 .05 .45 .05 .30 .20 1.30 .30 15 0 'X x.4 .45 .06 .15 .60 Pogo 9 MtoLone- EXRJBI-F 1P COMMONWEALTH OF PENNSYLVANIA OP-3-05 GAYLE A. ELDZR S07 N. YORK BT. AIECBANIC88URG, PA T.;Q~..t717) 766-4575 17055 CFD318TA NALONB 211 HALL DRIVE SIX1,28817RY, RD 21604 y M NOTICE OF JUDGMENTITRANSCRIPT PLAINTIFF: CIVIL CASE HANIsMACCAN57 rNALONB. CXRISTA 1 211 BALL DRIVE SALISBURY, MD 21604 DEFENDANT; VS. J IIAMl Im AppeC99 rA 4 J POODLES 1 899 XMILY DRIVE KSCHABIC61BURG, PA 17055.5706 L J T =000013779-9? THIS IS TO NOTIFY YOU THAT: ....._ ?... Jutlgment, --' - FOR -1;LATNT <an - 0 Judgment was entered for: (Name) -&T^u n.mTa,r,i ® Judgment was entered against: (Name) A a ,T 286nr tan In the amount of $ ,,L on; Defendants are jointly and severally liable. 0 Damages will be assessed on: (Date of Judgment) _ 7/n,/'o (Date & Time) "'.0°This Casa dismissed without prejudice. Amount Of Judgment Subject to AttachmenVAct 5 of 1996 $ Levy is stayed for days or ? generally stayed. U Objection to levy has been filed and hearing will be held: Data: Place: Time: Amount of Judgment Judgment Costs Interest on Judgment Attorney Fees Post Judgment Credits Post Judgment Costs Certified Judgment Total ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JU DGMENT 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 NOTICE OF JUDO NTITRAN$CTJIIPTTTFrO-?RMM WITH YOUR NOTICE OF APPEAL. Date . ?a StlvJ'K? District Justice MF! Is a true and correct /c?ohe,rt3tord of the.6TOceoedings containing the judgment. Date -?-' / 2 /? --? ,. , District Justice My commission expires first Monday of January, 2002 AOPC 315.69 TTd Wd90:ZO 866T S1 'd?S 'DIJ Xtjd Lt e6ed sllneyg .N uaalyteH . co 1.1133 wOal SEAL EX+? IB17' G- woad weL3:60 66-81-6nV p8Alaaa8 t0 "' n I 1? ?, -. i -i_ - - - j--- -- ------ --- --- -- --- -- LW IN u iqj! c E 0 Z,< 09 Mp IT PT- On this day March aD , 1999, I /_ / J 'At 0A , have sold one 7-week old black female teacup poodle to Christa Malone for the amount of $800.00 paid in full. Buyer reserves the right to have the puppy examined by her veterinarian within 96 hours. If in fact any infectious disease and / or any congenital disorder is discovered the puppy may be returned for a full refund. 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N a n q u L Wpm y C w o Y _W Q 4 G C C C a J ?'C Lp Trn-=?c °W. I Wae28_.-gfEtao Ndxm N O w d a E c c w w c o o m m d c C N ?Ow M0m E W 8J t m Ec0O6 = y C y W vim=C0. N J D '5; N M Z m O W 0 ..2 w N M m E « U s ?- o E 0 ? ? E Zmon_ov Z - U E'um W o w a .0 F Y=`OEOm La J m mUa w zm'??Cw=LL m ulyEiiE.- Z N Z C Q w y Z C U W C L O J W 0 W U C U m« J O J m t `l .u 8 gSS 2\ } 3 0 6 ? 6 ? ? ? t7 l Z W O M M M M ?OONMtOEE M66MMW88 MmMO?? Nn?n'n'?y8 )n cO ?Omm ? m(O <o ?O ?Omp3 o^N^n uN^?0 0 e. wat NN N NN v v 7 W 0 i i O x a i J L d c « U% HEwEwc in i U2-=tE ?v i U wz'p d o.?3 y u --O wnaa F o c,Em Eg< 0 n._ Z a c c` n c x a m 22av)aum.3w u• Pt` i M 1 1 MO w r u Z J °n Ug A - w rk: Z J w3 Y J o ax Zm o Z pa z O U c 3 ml 10 0 V d o a z& VLo C O ?o d 2 *????????? °IIIIII II SOW p ?' ??El? C?? •? y? N Q?1 I I I I +s' N ?•O y:yy C O 73 A C Q E K W d D 0 v ? 6 1 a A atl ?6 AMU A l 84 ttl m ?'. ? 4 N a? }Gpq Q c w ay yy ? trtlf C 7] ? ? 1 8 p ? OOa wN N? ?,O q L e ?tlA pv, ?,? ?? ?n3 n ? /i ?E tlp 'y''? .pO . p> ppp 8a0 1y qA .o 55 .G .C i \ ? ? ? ? ? ? ? ? ? 1000000000 ? ? ? ? ? ? ? ? ? 000000000 do *N-Mi???????? o NX" LM0??????? N??0?0????? a 00000000 E Nb???????? Q\ `I I I I I .N M Y 0000000000000000 0000000000000000 0000000000000000 0000000000000000 0000000000000000 0000000000000000 0000000000000000 0000000000000000 N tD la0 T O .y .ry n .y+ .Nr .?-?i ti .qi G McAllister Veterinary Service 235 Dykes Road Salisbury, MD 21804 410-742-3935 24-1999 4:50 PM STA MALONE HALL DRIVE sbury, MD 21804 CLIENT NO. 3308 INVOICE NO. 35985 PHONE (410) 742-9507 M CODE PATIENT SERVICE QTY TAX TOTAL •-------------------------------------------------------------------------- •24-99 OV-BAB BUG YOUNG ANIMAL 1 20.00 NEW CHARGES 20.00 PAYMENT - CHECK -20.00 BALANCE 0.00 Congratulations to "Sasha'l Gruber February's Pet of the Month ??C 113 I K., VZIMUCATION I verify that the statements mode in the within Complaint are true acid co.rect. I understand that Ealae statements hereln are made subject to the penalties of 18 Pa. C.S. Sea. 54904 relating to unaworn talaification to authorities. Chri&omab? g, Dated: Auqust2O 1999 01 •6e. '" 992OUld ua+! "26160 66-L:-6nd 6il1045 '4 u?s140?NIFq 1??5 CHRISTA MALONE, Plaintiff VS. JACK A. SUNDERLAND AND ALICE R. MOUNTZ t/a A & J TOY POODLES, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-4601 CIVIL TERM CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Complaint upon the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, specifically, Pa.R.C.P.D.J. No. 1005, by depositing a copy of same in the United States mail, Carlisle, Pennsylvania, Pennsylvania, first class, postage prepaid as follows: Alice R. Mountz 899 Emily Drive Mechanicsburg, PA 17055 Jack A. Sunderland 899 Emily Drive Mechanicsburg, PA 170,55 Ka hleen K. Shaulis, Esq. Attorney ID No. 37445 44 South Hanover Street Carlisle, PA 17013 (717) 243-6655 August 20, 1999 CHRISTA MALONE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. JACK A. SUNDERLAND AND ALICE R. MOUNT7, t/a A & J POODLES, Defendants 99-9601 CIVIL TERM ORDER OF COURT AND NOW, this 9th day of Vie e- eIWA2000 Y , parties are directed to submit briefs in support of their respective positions by close of business on January 25, 2000. By the Court, Kathleen K. Shaulis, Esquire 99 South Hanover Street Carlisle, PA 17013 For the Plaintiff Edward E. Guido, J. i-?-acs R ?s Paul Taneff., Esquire 9219 Derry Street Harrisburg, PA 17111 For the Defendants f . riprR`f ("? . '.° -6 Ail Si: c? CU ``UN 1Y