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HomeMy WebLinkAbout99-066373 h s L? L M J ? G J ?I I ' I, No. Dater---, pOT y TO fnAr? For 4W Amt. of Acct Amt. Paid .? p0 Bat. Due Mclm 9649 J,,1 No. Date 3 'l `l T NL /l /ate- TX RECEIVED OF 0 A5 p ?CIO DOLLARS $ / 7 - ---?:- A Aml. of Account Amt. Paid (-- Ralance Due BY I J j l •,N A." i i No. .2 1 Mdm Amt. of Acct Amt. Paid OQ i?0 Bal. Due c l i I i No. ;z DateT J'4C7 RECEIVED OF `- 455 ,/J / ?'IIMA'f DOLLARS $96Amt. of Account Amt. Paid Balance Due gy -?'t'? /-f I 1?Y 1 t .?1 w tY No. J Date /P ?? 70? JJ To ?1 72£k For Qlm Amt. of Acc't Amt. Pald DO ';QO Bal. Due 6Adm 96 47 Fo. DalaGG0 /? F ?i L -4f--3 AUIPlaf' DOLLARS $ ?. nwuwn Amt. Paid ® -- _ A I• i' No. 41 For Q,,+R Amt. of Acct PaiA GYJ i?C1 Bal. Due ;Y No. 7 Dateq,4'1 7J 7a V4/./ t RECEIVED OF ?fS AWAY DOLLARS $?Ga o0 Amt. of Account Amt. Paid Balance Due BY --ljl?n I ? f i i I '1 , r. -1FRECEIV s- ED OFD No. J Date / 8 T To ? ? l Fnr CAR Amt. of Acct Amt. Paid Bal. Due ao II DOLLARS $ a?C7 ,-- Amt. of Account /? Can p Amt. Paid Balance Due BY t t ?s /5?? /ASS No. Date 99 RECEIVED OF //i' F ? DOLLARS Amt. of Account ) ? g /n4 II Amt. Paid `/7 No. N' =Date ? ! _ x- ?7I D ° I REQEIVc_; ? s. T? I _ ' l LF? DD1ARS For AM- 0- I 4m: •. ?/ . nD.. pax 4m: n' 4ccnum / Am: ?ait i I ?j!! [/ -- ? _ eemn. sea .' 3amn-e Duc: 31' • I I ? II n I? li i i I i I t f ? 1 ' r ? t %W l ?L •0 y ;n1 For C/)R Amt. of Acct Amt. Paid Cb i?D Bal. Due ?S No. Date RECEIVED OFC• 405 DOLLARS $ Ila? i Amt. of Account Amt. Paid f I t . 11 No. r Date To? ?T f For CPr? Amt. of Acct Amt. Paid L'X !Qd Bal. Due GMIa"s get _. i r 1 '.. A ?s i D Date Forte- Amt. of Acct Paid 0 !GO Bat. Due f._ 1 I , No. 1(9 ?' Date `' h•? S ?' ss'It¢ (?? 14 S RECEIVED OFC/ 6Ap G? ? DOLLARS $ Amt. of Account %f o" lQ n Amt. Paid r/^ Balance Due BY I I "I i. i '; To l jjyj For Ckk Amt. al Acct Paid C) !c)(9 Bal. Due i i? No. 'I Dated o JF•YI't"' M II I RECEIVED OF DOLLARS $ • 6 d I- I I t f ,r +1 J No- fif I Date Q ? ? For Cap Amt. of Acct Amt. D0 Paid Bal. Due 3 ` iG N(? No.?L- / Date Oct S f ?G QG? I' ?/ f RECEIVED OF ?? ?? Z? X/I;yE DOLLARS $.?SL i ;.r ?y. " /74 f-?' mar= .`. T. , Ii aC q r i i t W? For C t? Amt. of Acc't Paid ` b b Bal. Due No. ' RECEIVED Amt. of Account /? II Amt. Paid DOLLARS $ ad. do II No. 1 .7 For CAP, Amt. of Acct Amt. Paid l C(] Bal. I No. 17 Date ?/fGf RECEIVED OF DOLLARS $ BY i i ?Lr l,t> j: I i t I No. Date (9c? :2)1 ?SSS /d /640 RECEIVED OFt L' od DOLLARS $ ?Gd Amt. of Account y? Amt. Paid / ole alp J_ ri. Balance Due BY ,j No. 1--7 RECEIVED DOLLARS $ '.?-- Account aid n Date 7o- Aw), L? ZEU i .r.,.. ?:... I, J ;: ;::' I -s> ?; ;.r? RC ,l .. ? ... v?? ?J ?'i __ Vim,, .?. ...._.. ..aq. ,. -?? 4: - ?- 4, - 1.; yS ?C 1 Jo. I;z ( o(i?/l Na?.yt? =or Cwl? r 1 r 1 ` YL j lo.?l o :or C_ k Qo No.---?- //- RECEIVED OF_?+' DOLLARS $ A - `II f :?r i i 4o._-- :or CAj_ No. ;3 RECEIVED OF DOLLARS $ 6d r J i DOLLARS $ GHQ , cp t f r r r i 1 i *or . ch, No. ;_.r Date // /?F7 ?d (Jfo.// f f i RECEIVED OF f c INX E --r BY Op DOLLARS $ ??? i I i 1y 3r G+ No. a6 RECEIVED OF?22 v JAN. (. 2ooc? DOLLARS $ Qd 11 i i o. 92 or CNN D No. -) ` RECEIVED OF ?I .r l DOLLARS $V V x Cm i i r II? No. _9 RECEIVED 'or CAk i DOLLARS $ ?? V i ,, .: . i?? ?, ?? 1?r '. ?> :+ ?a? ?r f t I -.---__..r...-. _.. .? No. RECEIVED OF Co 2o. ?Ood BY. DOLLARS $ 00 '0' 11 i 1 CU No. 3a RECEIVED OF DOLLARS $ aOd 1 1 ' l ' 1 , r r 1 { i t, No. RECEIVED OF 69. trio DOLLARS S©? l r i CA,e i aL I I nt. [ %C4:'[ VIII. a ?? paid Amt. of Account Amt. Paid 3a1. Due Balance Due By?& 444 lma 9641 ?, ' I ?C V "/ /` 11 it i i YL . I i vvYb 1 I No. RECEIVED OF r' DOLLARS $ co II Amt. of Account /qe I Amt. Paid C." Date S?, ? i r _l Cps= No. RECEIVED of Duo r i ?'XJ /FIB DOLLARS $ / C sv D?Q4 64 ?? F 1. _. No.( Date ?? % ??OC? RECEIVEDOF -DOLLARS d C? me 9641 `?-- - -- - i I ,i ?. -: `? -??". a ?. r ,, _?? :.?? ,? .. __ - .. ___ __.,.r,_.._._., .- I (I 1 ? ?t yr' 1 1. 3 oU Y3 No. RECEIVED OF DOLLARS $ 60 `X ? II Aml. of Account /?? p 4 ,?/•1 Amt. Paid Balance Due gy --t L/1-n ???, X i t j i a^ i i i h" No.-L--6L RECEIVED Amt. of Account T D ?Q ' Amt. Paid Ralance Due BYE 1 DOLLARS $ aoo IIt 41? r Ii i No. RECEIVED OF 9 ?BY ' DOLLARS D 6?- CA I 1 f \ { ?f ?C i I? r GRAYDON L. MARPOE, : IN TI IL' COURT OF C ONINION PLEAS OF a/k/a Lester Marpoe CUMBERLAND COUN'T'Y. PENNSYLVANIA 95 Parsonage Street Ne\vvllle PA 17241 APPEAL PROM DISTRICT COURT vs. : 09-2-01 MARSFTALL POWELL. No. 99-6637 at/k/a Frnic Powell : CIVIL ACTION - LAW d/b/a Lrnie's Mustang Drive 191 Craines Gap Road Carlisle PA 17013 ANSWER COMES NOW. Marshall Powell, d/b/a I rnie's Nfusta ng Drive, by and through his Attorney. James J. Kayer, Esquire, and who does hereby respond to Plaintiff's Complaint as follows: Count 1 FRAUD 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted 6. Denied. It is denied that the Dcfcndant at any time indicated that the engine blocks that he utilized in providing re-built engines were new engine blocks by Ford Engine Distribution plant in Texas. By way of further answer. the Dcfcndant admits communicating to the Plaintiff that certain parts that he utilized came from Texas. 7. Denied. It is specifically denied that the Defendant testified that he received his engine blocks from ajunk yard in Nlagdand. By way of further answer, the Defendant admits that he obtains some of'his engine blocks frontjunkyards. as well as other sources of supply, -111 including returned cores. S. Denial. It is denied that the plaintiffs first opportunity to have the terms ol'the twarranty explaincct to him were \yhen he picked up his vehicle. 13y %Nay of further ansycr. the terms of the warranty were discussed with the Plaintiff by the Dcfend:ult when the work was first commissioned and a copy of the warranty is posted at the Defendant's shop and \\as available for plaintiffs rcvic\\' on each and every occasion he was al the shop. NI IERBPORE. the Delcridant requests this Court to dismiss Count I of the Ilaintilrr's complaint. Count II 13RGACI I Ol' \VARRANTY 9. Paragraph 1-8 are incorporated herein by references if fully stated. 10. After reasonable investigation the Defendant is without knowledge or information sulricicnt to form a befief as to the truth of the Plaintiffs averment and therefore denies same. 11. After reasonable investigation the Defendant is without knowledge or information sufficient to form a belief as to the truth of the Plaintiff's averment and therefore denies same. 13. After reasonable investigation the Defendant is without knowledge or information sufficient to form a belief as to the truth of the Plaintiffs averment and therefore denies same. 13. Denied. It is specifically denied that the "only answer' that the Plaintiff got from the defendant is that it would cost him 5500,00 to have the en,inc removed and $59.00 per hour for lintie•s \-lustang Drive to examine and fix the motor. 13y w•ay of further answer. IDcferidant suggested specific courses of action to be taken to determine w'Iicther oil was leaking or being burned. 14. Denied. It is denied that the Plaintiff was informed that there tyould b,: a rtvo week delay before any work could be done. R}' way of further answer. the plaintiff attempted to r? ..?_.a-..era...?_wy?;n+y'.m.sF"v.'fF'.=i•RL':c?^_'^?=•'??•_^'Y' _ ? ft?? contact the Defendant while he was on vacation and over the course ol'checking messages, the Defendant received the numerous messages lelf by Plaintiff; contacted the Plaintifl', and advised him that the at the end ol'the week when his vacation ended he would be able to look at the Plaintiff's car. The Defendant did complain to the Plaintiff that the number of telephone messages and attempts to contact the Defendant by Plaintiftlwere excessive, including linu• recorded messages and twelve rills recorded by the Defendant's caller I.D. unit, and on the occasion when the Plaintiffand Defendant spoke. I'laintifl'bcrane quite belligerent on the telephone. Defendant at that time of'f'ered $250.00 to the plaintifl'to have the engine removed and brought into his shop or to have the vehicle brought into the shop. Plaintil'I'declined tile offer 15. Denied. It is specifically denied that the Plaintilfwas advised by the Defendant that it' he drove his vehicle at all that the Defendant would not honor its warranty. By way of farther answer, the Defendant advised the Plaintiff that if the engine had a knock or load noise, that driving the vehicle further could cause damage to the vehicle and Plaintiff was strongly advised against it. Plaintiffconfirmed the engine eas running tine but for alleged oil loss. 16. Admitted. 17. Denied. It is dcnicd that the Defendant has not "fixed" the Plaintiffs engine nor offered to do the same prior to the District IustiCC hearing. 13y way of further answer, the Defendant was never provided with an opportunity to honor his warranty nor provide all opportunity to examine the engine once it had been installed in the Plaimit'fs vehicle. Atlcmpls to mediate the dispute through the Consumer Protection Office and through tile Defcndan('s counsel also resulted in an inability to convince the I'laintiff ol'the need to allow Dclcndant access to the engine in order to assess its condition and lu uphold his warranty Obligations. IS. Denied. It is denied that the Defendant's work in installing the motor was done in anything other than a good and workmanlike fashion. It is specific,,] ly denied that the intake and the exhaust manifolds were bolted correctly, that the defendant put too much oil into the engine or ruptured the rear main engine seals. By way of further answer, Plaintiff in his testimony presented at District Justice hearing confirms that mechanics other than the Defendant worked on the engine subsequent to its installation in Plaintiffs vehicle. 19. Admitted in part, denied in part. It is admitted that an alternator which is not fastened properly could cause additional damage to and engine compartment. It is denied that the alternator in the subject engine was fastened improperly. therefore the conclusion set forth in the Plaintiffs averment is irrelevant. 20. After reasonable investigation the Defendant is without knowledge or information sufficient to form a beliefas to the truth of the Plaintiffs averment and therefore denies same. WHEREFORE, the Defendant respectfully requests this Honorable Court to dismiss Count II of Plaintiffs complaint. Count III VIOLATION 01 rl-IL'- PENNSYLVANIA UNFAIR TRADE PRACTICES ACT 73 P. S. 201 I r SEQ. 21. Paragraphs 1-20 are incorporated herein by references if fully stated. 22. Denied. It is specifically denied that the Defendant violated the Unfair Trade Practices Act by causing a likelihood of confusion or misunderstanding as to the source of the products that lie utilized in the installing the rebuilt engine into the Plaintiffs vehicle. By way of further answer, neither in his initial advertisement designated Exhibit A in Plaintiffs complaint, nor in his invoice designated Exhibit t.3 within the Plaintiffs complaint. nor at any otheu time did the Defendant make any reference or promise to the deliver to the Plaintiff a factory rebuilt engine. Strict proof is therefore demanded ofPlaintiffat trial. 23. Denied. It is denied that the Dcfendattt represented at any little that the engine he would install was "Ford Factory Rebuilt". The remaining portions ol'the Plainliffs averment are conclusions of law and therefore require no response. 24. Dcniccl. It is denied that the Dclcndant at any time represented that the engine block was a Iactory rebuilt block. 25. Denied. It is specifically denied that the Defendant hailed to comply with the terms of his warranty. 13y way of bather answer. the warranty has very specific terms incli dinlt no warranty on labor after 30 clays. Plaintiff by his own admission confirms that his f list Contact with Dclcndant regarding problems with losing oil occurred between July 6. and Jufv 12, 1999, in excess of thirty days from the time the engine was installed. 26. Denied. Defendant specifically denies that he ever identified any engine block in his shop that was one to be used in the Plaintiffs vehicle and that such block originated lion, a factory located in Texas. WHEREFORE. the Dcfcnclant respectfully requests this Honorable Court to dismiss Count III of the Plaintiffs Complaint. DANIAGFS 27. Paragraph 1-26 arc incorporated herein by rclcre nces if fully stated. 28. Admitted. 29. After reasonable investigation the Delcndant is without kii(mledre or informalion sufficient to florin a beliefas to the truth ol'the Plaintifl-s averment and Iherelinr denies 13), way of further answer. the average cost on the market as described b}' Plaintif f in his averment is irrelevant to this dispute. M. After reasonable investigation the Defendant is without knotclcdi !e or vdin minion sufficient to florin a belief as to the troth of the Plaintiff's averment and thcref ore denies sane. By way of further answer, Plaintiff testified at the District Justice hearing that the rental car arrangement was made privately with a family member. "file amount allegedly charged by that family member is clearly excessive and unreasonable. Plaintifi'has it duty to numntize any alleged damages that he is claiming occurred as a result of harm caused to him by the Defendant. 31. Admitted 32. After reasonable investigation the Defendant is without knowledge or information sufficient to forma belief as to the truth of the Plaintiffs averment and therefore denies same. 33. Plaintiffs averment is a conclusion of law and therefore requires no reply. 34. After reasonable investigation the Del'cndant is without knowledge or information sufficient to form a belief as to the truth of the Plaintiff's averment and therefore denies same. 35. Denied. plaintiff provides no base for his calculations of 520.162.14. Portions of his prayer 1'or damages are based on speculation and are inappropriate. An award in the amount requested by plaintiff would unjustly enrich him. WHEREFORE the Defendant respectfully requests this Honorable Court to dismiss the complaint filed by Plaintiff in the above captioned matter. Respectfully submitted. G I'I Janes .1. Kayer, Esqui Attorney for Plaintiff Kayer & I3r6111 4 G. Liberty?Avenue Carlisle. PA 17013 (717) 243-7922 Supreme Court I.D. #50838 VERIFICATION OF PLEADINGS The foregoing document is based upon information which has been gathered by my counsel and myself in the preparation of this action. The language of the document may, in part, be the language of my counsel and not my own. I have read the statements made in this document and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the contents of the statements are that of counsel, I have relied upon counsel in making this Verification. I understand that false statements herein are made subject to the penalties of 18 PA. C.S. § 4904, relating to unsworn falsification to authorities. Date: 1999 i i r 5 i .. .. tSt , Sa ?r r r ri r ? t ? t t t r, r. F r t > r ?. p r iy. 1 ? t .- a' i Ton j, 3 pN O o ? - l r t t L Bows- an r 4 a A? a a °' COOT i _ + ? S t a f ' >r , F i ' L U r t [? 7 - t-i "G La v r ( PAYPOll 1.. NARPOF.' a/k/a Lecl.er Marpce 05 Y.arr.onage St.rEin 1, Newvillc, Ps. 17241 V. JUN 0 2 200DW ? , IN T[?E COORT 01' COMMO?1 PLEAS FOR C'iM PisKAND COUNTv APPEAL FROM DISTRICT COURT 09-2- Ol __ _ -_- ... , .. _ . ... ?,., .. ?, ,.. .•1? .... .... .. .... .... :rl` ?.. 1 _: GRA711ON MARPOG ------ --- JUN 0 2 2000 a/k; a Lc ter .^!Urg<,r• IN Ti?B 70MT OF COMMON PLEA 95 Parsonage "truer FOR CUID-ERTLAND COUNTY Newville, P:i. 7291 ti i, I L: , ,? SHERIFF'S RETURN - REGULAR CASE NO: 1999-06637 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MARPOE GRAYDON L JR vs. ERNIE'S MUSTANG DRIVE ET AL DAWN KELL , Sheriff or Deputy Sheriff of CUMBERLAND County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT was served upon POWELL MARSHALL E A/K/A POWELL ERNIE D/B/A ERNIES MUSTANG the defendant, at 15:30 HOURS, on the 29th day of November 1999 at 191 CRAINES GAP ROAD CARLISLE, PA 17013 ,CUMBERLAND County, Pennsylvania, by handing to ANNA POWELL (WIFE) a true and attested copy of the COMPLAINT together with NOTICE and at the same time directing Her attention to the contents thereof. Sheriff's Costs: So answers: Docketing 18.00 Service 3.10 Affidavit .00 Surcharge 8.00 somas ine, eri $Z9i0-D DANIEL POLLOCK by S) ? ?Y ?n l IIepu erif1 - Sworn and subscribed to before me this /i V_ day ofkoezz,., ,, 19 0, A. D. -?roEnono a?y. GRAYDON L. Iv1ARPOE, Plaintiff vs. IN TI IF COURT OP COMMON PLEAS 01' CUM131?RI.AND COUNTY, PENNSYLVANIA APPEAL PROM DISTRICT COURT 09-2-01 MARSHALL POWIiLL. No. 99-6637 a/IJa Ernie Powell CIVIL ACTION - LAW d/b/a Ernie's Mustang Drive. Defendant PRE'nuAL PYIEMORANDUM To: The Honorable J. Wesley Oler. Jr. Cumberland County Courthouse Date of Pre-Trial: June 5, 2000 at 1:30 p.m. Submitted by: James J. Kayer. Esquire Kayer and Brown Attorney ID#: 50835 4 East Liberty Street Carlisle PA 17013 (717) 243-7922 c/Ov.. s , GRAYDON L. MARPOE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA APPEAL FROM DISTRICT COURT VS. 09-2-01 MARSHALL POWELL• : No. 99-6637 a/k/a Ernie Powell : CIVIL ACTION - LAW d/b/a Emie's Mustang Drive, Defendant PRETRIAL MEMORANDUM Pursuant to local rule 212-4, this Pretrial Memorandum is being submitted to the court in the above captioned matter. 1. FACTS AS TO LIBABILITY The parties entered into a contract for the Defendant to put a rebuilt engine into the Plaintiff's Ford Bronco. The Defendant completed the task and returned the vehicle to the Plaintiff. The Plaintiff subsequently had concerns regarding leaking oil. The Plaintiff voiced these concerns to the Defendant over the telephone but at no time has allowed the Defendant to have access to the vehicle to effect repairs or otherwise satisfy his warranty obligations. The Defendant at no time has notified the Plaintiff as to the fact that the engine was "factory rebuilt". 'rile Defendant has never refused to do work to the vehicle pursuant to the terms to the warranty that were clearly established and communicated to the Plaintiffprior to the work commencing. II. FACTS AS TO DAMAGES Plaintiff has claimed a variety of damages stupefying in their scope. At latest calculation, the Defendant was seeking nearly $40,000.00 for a transaction that cost only slightly above $2,000.00. III. PRINCIPLE; ISSUES OF LIABILITY OF DAMAGES A. Is the Plaintiffeligible to proceed on a theory of f3reach of Contract, Breach of Warranty. Fraud and Violations of the Pennsylvania Unlair Trade Practices and Consumer Protection Act if he fails to allow the Defendant the opportunity to effectuate repairs on the subject vehicle and uphold his warranty obligations? D. Is the Plaintiffallowed to unjustly enrich hinnselfrcgarding damages claimed by his failure to mitigate those damages, particularly with regard to the close family transaction that has occurred regarding the Plaintiffs rental of a vehicle? IV. LEGAL ISSUES There are no complex issues of law involved in this matter. V. WITNESSES 1. Marshall E. Powell 2. Plaintiff as on cross-examination. The Defendant reserves the right to call witnesses on the Plaintiffs pretrial memorandum and reserves the right to supplement this list. VI. EXHIBITS AND PHOTOGRAPHS The Defendant intends to utilize the bill of sale fix the engine in question which includes specific language of the warranty. The Defendant may also utilize telephone records to confirm contacts made between the parties prior to the institution of the suit. VII. SETTLEMENT Throughout the course of this dispute the Defendant has offered to investigate any problem that may allegedly exist with the engine and correct that problem pursuant to tile ternis of the warranty. Ile has been refused access to the vehicle at all times relevant. The Plaintiff seems far more concerned in attempting to enrich himself from this dispute than actually enjoying the use of the subject vehicle. Respectfully submitted, Date: v < S?GU (717) 243-7922 CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing PRETRIAL MEMORANDUM was served on the following persons by First-class mail, postage prepaid, by forwarding a true and correct copy unto: Daniel Pollock, Esq. 3105 Old Gettysburg Road Camp Hill PA 17011 and hand delivered to: The Honorable,l. Wesley Oler, Jr. 1 Courthouse Square Carlisle PA 17013 Date G 6 UU James J. Ka r; 24 4 East Libe A?Gei Liberty Lot Carlisle, PA 17013 (717)243-7922 MLOZ (W EIOLI yd a1sG?ep-: anuany ljagil•3q . 11016y8011' uogeiodiop leuoissalad y unnoag pue W e , r r { l J 4 \ .S 1.. ll. -- t p. d r f ? S. N ? -r ? C .' 12 r o. ' m J r : U ? uJ ?' IO ' C rC :N r: Co o_ rl " a.. L FN ? , y A \o m J 'i I•?, ? Y i f fr 1 OFFICE OF THE COURT ADMINISTRATOR CUM©ERLAND COUNTY COURT OF COMMON PLEAS 1 Courthouse Square • Carlisle. PA 17013 Richard J. Pierce Court Administrator TO: FROM DATE: IN RE: GRAYDON L. MARPOE V. MARSHALL POWELL The above case is assigned to you for a non jury trial. Please provide nie with copies of your scheduling orders and final disposition date so that I can monitor the case for statistical purposes. Phone (717)240.6200 (717) 697-0371 (717) 532-7266 (717) 240.6462 FAX . L 110RANDUn1 Taryn N. Dixon Assistant Court Administrator The Honorable J. Wesley Oler, Jr. ? Taryn N. Dixon, Assistant Court Administrator 7=,- 77 March 24, 2000 6637 Civil 1999 Attachment OR 2 4 2000,, PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: (Check one) ( ) for JURY trial at the next term of civil court. (x) for trial without a jury. CAPTION OF CASE (entire caption must be stated in full) (check one) Grp/dam,, L. Mar('o.e_ X) Civil Action -Law O??IC/a I-e?i?'ef Nn4r?o e, N J,a PSG ?4S?? ( ) Appeal from Arbitration Ne-v/v•?Ie, Lt I ( ) (other) (Plaintiff) VS. P6 1l) c) VIOL I%f?lie-- 4WZNI d/b/a. Vf9 e;splus f?"s Or?c-- I C ra •03 qar )lob Cor['5)e, ja, IW;efendant) VS. The trial list will be called on and Trials commence on Pretrials will be held on (Briefs are due 5 days before pretrials.) (The party listing this case for trial shal provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214.1.) No. qq ' Civil Indicate the attorney who will try case for the party who files this praecipe: I/, LI I?Ifccff Indicate trial counsel for other parties if known: l _ This case is ready for trial. Signed:?_ ^r) o? wr - Print Name: ' /o,t c 1 )2I?/A0(- I/I Date: 3/7 -L1cu Attorney for: C t r yd rl I Ittlcr ? 0 Fl v o v COMMONWEALTH Of PENNSYLVANIA COURT OF COMMON PLEAS JUDICIAL DISTRICT CUMBERLAND COUNTY NOTICE OF APPEAL FROM / f/0 //y DISTRICT JUSTICE JUDGMENT COMMON PLEAS N. C? TL41-- NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pleas on appeal from the judgment rendered by the District Justice on the date and in the case mentioned below. MARSHALL E. POWELL 191 CRAINES GAP ROAD 10/7/99 (GRAY CV t999-0000340 IT 19 hn sinned ONLY when this notation is requ red under Pa. 10088. This Notice of Appeal, when received by the District Justice, will operate as a SUPERSEDEAS to the judgment for possession in this case Signature of Prothonotary or Deputy 1001(6,14 action/before District Justice, he MUST FILE A 66MPLAINT 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 ft. R.C.P.J.P. No. 1001(7) in action before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee). PRAECIPE: To Prothonotary Enter rule upon GRAYDON L. MARPOE JR. appellee(s), to file a complaint in this appeal Name of appolkWS) (Common Pleas Na 99- 61, 3 ? C! ci.f 'T,oo...- ) within twenty (20) days after Brice of rule or suffer entry of judgment of non pros /,. 4i or na allomey or RULE: To GRAYDON L. MARPOE,JR. appellee(s). Nampa of appM#e(s) (1) You are ratified 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. Date: , 19 r f E C.u A QQCc a DerwN (see Pa. R.C.P.J.P. 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Dnl. No.'. 09-2-01 DJ Nam.: Hon. PAULA P. CORREAL Aem.::. EAST WING - COURTHOUSE 1 COURTHOUSE SQUARE CARLISLE, PA T.mo..n.:(717) 240-6564 17013-0000 ATTORNEY DEF PRIVATE : JAMES BAYER 4 LIBERTY AVE. CARLISLE, PA 17013 NOTICE OF JUDGMENT/TRANSCRIPT PLAINTIFF: CIVIL CASE NAME and ADDRESS -I FMARPOE JR, GRAYDON L 95 PARSONAGE ST. EXT. LNEWVILLE, PA 17241 J VS. DEFENDANT: NAME a,A ADLPESS rERNIE'S MUSTANG DRIVE 191 CRAINES GAP RD CARLISLE, PA 17013 L J DocketNo.: CV-0000340-99 Date Filed: 7/14/99 THIS IS TO NOTIFY YOU THAT: :Judgment:- rx] Judgment was entered for: (Name) MARrnu TR, r.RAvnnm T. FxJ Judgment was entered against: (Name) RRNTF-' S MTTC PAN - nRTVR in the amount of $ 5 1 57 _ -A R on: ? Defendants are jointly and severally liable. R Damages will be assessed on: ? This case dismissed without prejudice. Amount of Judgment Subject to ? Attachment/Act 5 of 1996 ? Levy is stayed for days or II generally stayed. ? Objection to levy has been filed and hearing will be held: (Date of Judgment) •t 01107/99 (Date & Time) of Judgment nt Costs on Judgment f Fees Judgment Credits $ Judgment Costs $ ------------ fied Judgment Total $ 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/TRA ?SCFIWT FORIA WITH YOUR NOTICE OF APPEAL. Date District Justice I certify that this is a true and correct copy of the record of the proceedings containing the judgment. i Date '<'<- - , District Justice My commission expires first Monday of January, 2000 SEAL AOP0 315-99 GRAYDON L. MARPOE a/k/a Lester Marpoe IN THE COURT OF COMMON PLEAS 95 Parsonage Street FOR CUMBERLAND COUNTY Newville, Pa. 17241 V. APPEAL FROM DISTRICT COURT 09-2-01 MARSHALL POWELL a/k/a/ Ernie Powell d/b/a Ernie's Mustang Drive No. 99-6637 191 Grains Gap Road CIVIL ACTION-LAW Carlisle, Pa. 17013 ANSWERS TO: PLAINTIFF'S FIRST SET OF INTERROGATORIES TO THE DEFENDANT MARSHALL POWELL Pursuant to Rule 4005 of the Pennsylvania Rules of Civil Procedure, you are directed to answer fully and completely the interrogatories listed in the following pages. Please heed, use and follow the directions and de£ination listed in the following pages. These interrogatories are to be completed and mailed to the Attorney for the Plaintiff, Daniel Pollock, Esq. at 3105 Old Gettysburg Road, Camp Hill, Pa. 17011 within 30 days of the date at the bottom of this notice. Failure to answer these interrogatories fully and completely according to the directions and definitions listed in the. following pages within the 30 day proscribed period may lead to sanctions being levied against you as provided by Rules 234.5 and 4019 Of the Pennsylvania Rules of Civil Procedure. Date: January 14, 2000 DIRECTIONS AND•DEFINATIONS Please type or print your answers in the space below the particular interogatory that you are answering, Answer each interrogatory fully and completely on the page below the interogatory adding additional sheets for the answer if necesssary. Mail the original and two,(2),copies to the Attorney for the plaintiff at ther address mentioned on page 1 of the packet upon completion. When giving addresses and phone numbers, please include both street and mailing addresses, and all phone numbers including area code. When asked about parts dealers include manufacturers, after market wholesale and retail companies, reconditioners, auto part stores, salvage yards, and junk yards, as well as any other place where you receive parts to rebuild or remanufacture engines. When asked about Education, include the names and addresses of all of the schools, colleges, speciality training courses, correspondence courses and any on the job training you received. These interogatories are continuing, which me gain new information about any subject any interrogatories cover, you are directed to notii for the Plaintiff in writing as soon as possible noted on the front page of this packet. s I, INTRODUCTORY INFORMATION 4 f a). Name Plarshall E. Powell i b). Aliases, if any. None (Ernies' Mustang Drive) 191 Cranes Gap Road 17013 c).Home address Carlisle PA Of work involved i--1- Plilitary Retired 1958-1978x? d). Employment(S) Line(S) (Navy Depot, Mechanicsburg, PA) 1980 89 - F Fork Lift operator, Road 191 e), Employment and/or business address(es) Carlisle ePAG177013 Ernie's Mustang Drive £), Name(s) of business(es) employed at. g), extent of education High School/GED, Carlisle PA esel All Military, Wheel/Track/Di hooll & Gas Mech, plus welding Germany Ml1L F'lJt ???NNJ if, a), How long have you been working rebuilding or remanufacturing engines?. Since 1989 b), What type of engines do you work on? Include model.Pord rear wheel drive engines only. c). Since 1980, list the name of all businesses and their addresses that you owned or worked for where you worked on engines, Navy Depot fork-lift operator, Mechanicsburg, PA d). Since 1990, list all Mechanics and their addresses who have either worked for you, worked with you, or you worked for repairing, rebuilding, or remanufacturing engines. Wilmount Jumper, address unknown; Roger. Dupert, Newville PA e). List all names and addresses of businesses that youave run, or owned, which were involved with either repairing, rebuilding, or remanufacturing automobile engines. State the dates of operation of each business and reason for its demise, if any. Ernie's Mustang Drive, 191 Cranes Gap Road,Carlisle PA 17013 1989 to date III, BUSINESS CONTACTS a), List all parts dealers, their addresses and phone numbers, that provide(d) you and your busippss w th engipp plocks, and /or cores, Carlisle Auto Salvage, Casoliine A?ley,Car is e Big A - Car Quest - 249-2616, Carlisle PA Haurtluabs, 637-1990, Engine Blocks, Cores, - Hanover PA b), List all parts dealers, Their addresses and phone numbers, that provide(d) you and your business with engine parts. specify part, business, and address. Car Quest; 249-2616, Carlisle, PA Nationwide Engine Sales, Houston, Texas, 800-334-2427 Actm: 2430465 c). Which of the parts dealers listed in III a and III b supplied the parts used to remanufacture, rebuild, replace, and /or repair Graydon Marpoe's Ford Bronco? List name and part. All of the above. VERIFICATION I, Marshall Powell, Make the statements in these interrogatories fully, completely, and truthfully to the best of my knowledge. I Understand that these statements are made under oath, and that false statements made herein may subject me to penalities provided by Law. Other than being compelled to answer these interrogatories as stated in the pages of this Document, I am under no coersion or duress to answer these interrogatories in any particular manner or fashion, or to make false or misleading statements. Marshall Powell On JANUARY 14, 2000, a true and accurate copy of this Document was hand delivered to the following Interested Party: James J. Kayer, Esq. Law Firm Of Kayer And Brown 4 East Liberty Avenue Liberty Loft Carlisle, Pa. 17013 Res fully S b fitted, Daniel Pollock, Esq. Daniel Pollock, Esq, 3105 Old Gettysburg Road Camp Hill, Pa. 17011 Super. Ct. Id. 70315 (717) 737-7566 i jl „ - a i rS. v, o s +r C CJ C o >o ' O OS ... .. ?N • ? m v O 4 - % ` .y tr ? ? r < rte. n Jrn• Kayer and Brown A Professional Corporation Liberty Loft 4 E. Liberty Avenue • Carlisle, PA 17013:. (717) 243.7922 - GRAYDON L. MARPOE, : IN TI IE COURT O1 COMMON PLEAS OF a/Wa Lester Matpoe CUMBERLAND COUNTY, PENNSYLVANIA „• '.': 95 Parsonage Street Newvillc PA 17241 VS. MARSHALL POWELL, a/k/a Ernie Powell d/b/a Ernie's Mustang Drive 191 Craines Gap Road Carlisle PA 17013 APPEAL FROM DIS'T'RICT COURT 09-2-01 No. 99-6637 CIVIL ACTION - LAW NOTICE TO PRODUCE DOCUMENTS AND THINGS TO GRAYDON MARPOE: You are directed to produce the following: 1997 and 1998 Federal Income Tax Returns including all W-2 forms and 1099's that were submitted with those tax returns to the office of East Liberty Avenue, Carlisle, Pennsylvania, 17013, on January 14, 2000, at 12:00 p.m. If you fail to produce the documents or things required by this Notice to Produce Documents and Things, you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure. DATE Jam ssJ. K Kaver and 4 Est Liberty/Avei Carl sle PA 17013 (717) 243-7922 ID9 50838 R r rl nlc r r ! f _ T ?i ? y x'f e' 1 i. { er m 7 C M C 7. CD t" . '>'a, C O O i a a.m.. m 0 m U., > ! r W y 10. c- ; GN% O:i C 0 CD ?,J y :.Y 1 f„v a fF" . kO r:?t .. ' •' . n 2 ICJ - k 4i N1. GRAYDON L. MARPOL'• IN THE COURT' Oh COMMON PLEAS OI" a/k/a Lester Marpoe CUMBERLAND COUNTY. PENNSYLVANIA 95 Parsonage Street Newville. PA 17241 V. CIVIL AC'T'ION - LAW MARSHALL POWELL a/k/a Ernie Powell d/b/a Ernie Mustang Drive 191 Crains Gap Road Carlisle. PA 17013 NO. 99-6637 CIVIL TERM ORDER OF COURT AND NOW, this z6t"Iay of January. 2000, upon consideration of Plaintiff"s Motion for Protective Order, a Rule is hereby issued upon Defendant to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days ofservice. BY TI IE COURT', Daniel Pollock, Esq. 3105 Old Gettysburg Road Camp Hill. PA 17011 Attorney for Plaintiff Jnmes.l. Kayer, Esq. 4 East Liberty Avenue Liberty Loft Carlisle. PFD 17013 Attorney for Delendant R K5 :rC - ;ll-UO III I I 1f ,: GRAYDON L MARPOE a/k/a Lester Marpoe 95 Parsonage Street Newville, Pa. 17241 V. MARSHALL POWELL a/k/a/ Ernie Powell d/b/a Ernie's Mustang Drive 191 Crains Gap Road Carlisle, Pa. 17013 JAN 7 N IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY APPEAL FROM DISTRICT COURT 09-2-01 No. 99-6637 CIVIL ACTION-LAW ORDER OF THE COURT AND NOW THE DAY OF 2000, It is Ordered and decreed that the Defendant's request for Production of Documents and Things is hereby quashed. BY THE COURT DATE J. ._.. ®`. On JANUARY 14, 2000, Document was hand delivered a `rue and accurate copy of this to the following Interested Party: James J. Kayer, Esq. Law Firm of Kayer And Brown 4 East Liberty Liberty Loft Carlisle, Pa. 17013 lly S bb iI'"?'"' 27z"d u Daniel Pollock, Esq. Daniel Pollock, Esq, 3105 Old Gettysburg Road Camp Hill, Pa. 17011 Super. Ct. Id. 70315 (717) 737-7566 GRAYDON L. MARPOE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW MARSHALL POWELL, Defendant NO. 99-6637 CIVIL TERM IN RE: DISCOVERY CONFERENCE ORDER OF COURT AND NOW, this 28th day of February, 2000, upon consideration of Plaintiff's Motion for Protective Order and of Defendant's Response to Motion for Protective Order, and following a discovery conference held in the chambers of the undersigned judge in which the Plaintiff was represented by Daniel Pollock, Esquire, and the Defendant was represented by James J. Kayer, Esquire, the Plaintiff's Motion for Protective Order is granted, and the Plaintiff shall not be required to supply copies of income tax returns to the Defendant at this time. By the Court, Daniel Pollock, Esquire 3105 Old Gettysburg Road Camp Hill, PA 17011 Attorney for Plaintiff James J. Kayer, Esquire Liberty Loft 4 East Liberty Avenue Carlisle, PA 17013 Attorney for Defendant :srs J Wesley Oldr, Jr.', -J. If ?? % T to , .b0 3 ?' ?S 3 tt: I ISI? C'S " :' •- ; n- psi 1 414 Z 5 CO r - 7 U o i?J GRAYDON L. MARPOE, Plaintiff V. MARSHALL POWELL, Defendant IN THE COURTOP COMMON PLEAS 01' CUMBERLAND COUN'T'Y, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-6637 CIVIL TERM ORDER OP COUR"1' AND NOW, Ihis6 day of March, 2000.a pretrial conference in the above matter is SCHEDULED for Monday, June 5, 2000, at 1:30 p.m., in Chambers of the undersigned judge, Cumberland County Courthouse, Carlisle, Pennsylvania. Pretrial memoranda shall be submitted by counsel in accordance with C.C.R.P. 212-4, at least five days prior to the pretrial conference. A NONJURY TRIAL in the above matter is SCHEDULED for Thursday, June 15, 2000, at 9:30 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, Daniel Pollock, Esq. 3105 Old Gettysburg Road Camp Hill, PA 17011 Attorney for Plaintiff' James J. Kayer, Esq. Liberty Loft 4 E. Liberty Avenue Carlisle, PA 17013 Attorney for Defendant eslcy Oler, ..J. O _.. \? ? PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) To TIC PROI'NONDTARY OF CUMBERLAND COUNfY Please list the following case: (Check one) ( ) for JURY trial at the next term of civil court. (:;?, ) for trial without a jury. ------------- _____ CAPTION OF CASE ---------- (entire caption must be stated i f n ull) G rc< L . (y kUr 0-A4 1. e,- r mar Pc N? W v,llz, u, (Plaintiff) VS. M4vs iC' I I l 4/I(/c, Crnre- ?nw?il 44/a ran E'S ))l"To. ?? •?e HI cr4,ns ?a? n? L' ?.( t.51 t x. 1?J Defendant ) VS. (check one) Civil Action - Law ( ) APpeal from Arbitration ( ) (other) The trial list will be called on and Trials comnence on Pretrials will be held on (Briefs are due 5 days before pretials.) (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214.1.) No- Ci4-6G 51 Civil Indicate the attorney who will try case for the party who files this I / praecipe: 'h1 1 I-GI IGC- I1 Indicate trial counsel for other parties if known: This case is ready for trial. Signed: Print Name: _ ?? c•, I -d I(o c ?? Date: 3L y cc; Attorney for: c :_; O -J o ZJ GRAYDON L. MARPOE IN TI II COURT' OP COMNION PLEAS OP Plaullilf CUM13f'.RI-AND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW MARSHALL POWELL Defendant NO. 99-6637 CIVIL TERM ORDER OF COURT AND NOW, this `A day of Pcbruary. 2000, upon consideration of Plaintiffs' Motion l'or Protective Order rind of Defendant's Response to Motion for Protective Order, a discovery conference is SCHEDULED in chambers ofthe undersigned judge for Monday, February 28, 2000, at 9:00,1,111. BY THE COURT. Daniel Pollock, Esq. 3105 Old Gettysburg Road Camp Hill, PA 17011 Attorney for Plaintifl' James J. Kayer, Esq. Liberty Loft 4 E. Liberty Avenue Carlisle, PA 17013 Attorney for Defendant :rc J/ Veslev Oler,)r., .I. ? Coen-r;5 m ?? (tcL ??9?oc) FE8 0 4 2000r;'? GRAYDON L. MARPOE, a/k/a Lester Marpoe 95 Parsonage Street Newville PA 17241 vs. MARSHALL POWELL, a/k/a Ernie Powell d/b/a Ernie's Mustang Drive 191 Craines Gap Road Carlisle PA 17013 IN "rI-IE COURT OI: COMMON PLEAS OI' CUMBERLAND COUNTY, PENNSYLVANIA APPEAL PROM DISTRICT COURT 09-2-01 No. 99-6637 CIVIL ACTION - LAW ORDER OF COURT AND NOW, this day of 2000 it is Ordered and Decreed that the Plaintiff's Motion for Protection Order is denied and that he must comply with the terms of Defendant's request for Production of Documents and Things within 20 days from the date of this order. By the Court, J. cc: Daniel Pollock, Esq. Attorney for Plaintiff James J. Kayer, Esq. Attorney for Defendant GRAYDON L. NIARPOE, a/k/a Lester Marpoe 95 Parsonage Street Newville PA 17241 \'S. MARSHALL POWELL. a/k/a Ernie Powell d/b/a Ernic's Mustang Drive 191 Craines Gap Road Carlisle PA 17013 IN Tlil? COURT OP COi\I\ION PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA APPI?AI. FROM DISTRICTCOURT 09-2-01 No. 99-6637 CIVIL ACTION - LAW RESPONSE TO MOTION FOR mzumc'rIVE ORDER COMES NOW, Defendant, Marshall F. Powell, by and through his Attorney, James J. Kayer. Esquire, who does hereby respond to Plaintiffs Motion i'or Protective Order as follows: 1. In Plaintiffs complaint, specifically, paragraph 20. the Plaintiffclaints as damages rent on a vehicle that he needs to utilize in his line of work as a Newspaper carrier and claims to pay $200.00 per week on this vehicle since July 3, 1999. 2. Plaintiff. in his \4otton For Protective Orclel' paragraph 4, eonlirnus that he is renting his son-in-law's vehicle at the rate of $200.00 per week for the delivery of newspapers. 3. Defendant has legitimate concerns that the amount of the lease transaction between Plaintiff and his son-in-law is fraudulently high given the close funily relationship and given the fact that the amount far exceeds what the fair market value of a y vehicle capable of carrying tlue Plaintiff and his newspapers for his route would normally cost. 4. Defendant intends to prove through the use of PlaintilTs tttx records that his earnings are less than the amount that he pays weekly for car rent or is an amount that exceeds the amount of the car rent by so little, that it would be a relevant factor in assessing the credibility of Plaintiffand his witness' credibility when cacti testifies as to the contractual arrangement. 5. Plaintiffs reliance upon PA. R.C.P. 4011 (a)(b) is inappropriate as the information and documentation sought is not being sought in bad Ihith, nor xcould it cause unreasonable annoyance embarrassment, oppression, burden or expense to the Defendant. Wl IERBPORE, Del'endant requests this I lonortble Court to deny the Plaintiff's Nlotion for a Protective Order pertaining to the Delendant's rcqucsl for the Production of' Documents and Things. CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing RESPONSrs'?'O MOTION FOR PROTECTIVE ORDER was served on the following persons by first-class nmiL postage prepaid, by forwarding a true and correct copy unto: Daniel Pollock, Esq. 3105 Old Gettysburg road Camp liill PA 17011 Date L i„ James J. Kayer, Csquire 4 Gast Liberty Avenue Liberty Loll] Carlisle. PA 17013 (717) 243-7922 If I GRAYDON L. MARPOE, Plaintiff V. MARSHALL POWELL, a/k/a Ernie Powell D/b/a Ernie's Mustang Drive, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW INTO. 99-6637 CIVIL TERN] IN RE: PRETRIAL CONFERENCE A pretrial conference was held in the chambers of Judge Oler in the above-captioned case on Monday, June 5, 2000. Present on behalf of the Plaintiff was Daniel Pollock, Esquire. Present on behalf of the Defendant was James J. Kayer, Esquire. This is an action for fraud, breach of warranty, and violation of Pennsylvania's Unfair Trade Practices and Consumer Protection Law, arising out of Defendant's sale and installation of an allegedly non-conforming and defective engine for Plaintiff's truck. ?iDef-enses include an absence of liability on the merits and a failure of Plaintiff to mitigate damages. This will be a nonjury trial of an estimated ?dura Gaon of three hours. Pursuant to an agreement of c:coiinsel reached at the pretrial conference, Plaintiff will be afforded two hours for presentation of his case, including cross examination and rebuttal testimony, and Defendant will be afforded one hour for oresentation of its case, including cross examination and surrebuttal testimony. Counsel for the Plaintiff has agreed that he would not object to evidence from the Defendant in the form of statements from one or more automobile rental agencies on the appropriate letterheads, indicating the fees charged by the agency for rental of vehicles for commercial use, including any insurance fees. By separate order of Court, this case has been scheduled for trial on Thursday, June 15, 2000, at 9:30 a.m. One-half day has been allotted for the trial. With respect to settlement negotiations, neither counsel feels that the case will be settled. Daniel Pollock, Esquire For the Plaintiff James J. Kayer, Esquire For the Defendant wcy ? K3 By the Court, Gr CD61L?'I: Ff.C/1: i'i?F' ??1:7((??QNp (.?';N1y !^!!?^!'?^' _._..__•':^,.i(:..eWWxae?ees9*aII^n-Cn•'T.'i?S;R°T?4'.h:'iY<..-:...1_... 1 Trucks FORD Motors, Truck, Van, Cl and Mustang. Rebuilt 460, 351, 302, 289, 2.9. Warren. ty/Installation. 243.0465 Fi Great work truck. $700 or bostotrer. 241.6405.Laave „ F a message. FORD 1984 Bronco, 4 wheal drive, 5 speed. Make oiler. , 1967 Volkswagen, $1200. Call 243-4572. i i •.i i ? 1 A Q h c a 1. 3 L. {r o 2 J . ?' •t : _- p u Z a a m N \ w n F- Q' Q N ¢ 7 m Q O 00 Q f C J O. J N N \. O f. Q J I J J O p. m N w ¢ u Vl O to 0 w a N N r v 0 O f ` , W U N 1 N W a Z 0 t' f> C Z w C, ? T n o ,? c a- o° i Z Z c \L i w ? IL ? a o E 9 a ro \ h ? > P a a 3 `m °c c °c m n 0 3 O r t O u .? N y ` i ° d 20 a > T U O _ .. e E a d y QI X c ?\ ` v o d Ou :5 p c d o d* m m O , o u 'v o 1 . `- .o is E v> y d w m V d ° mw ?' . v a °-' O b A ?+ s ? . W>I Z03 :? N L 0, 0 3 P a ° 3 O C a E J ' \ j O O T°' O S 5 a a° d a iii w V l l T (p O p .0. N N y c ¢ .> V , ! c o a E? m 3 c 8 A ? \l fx a s °? E v. o N A ° w ¢ a '° E c p c u10i a d d ..? _T P ? ° K 3 ? r s 3 m N ? n - o n \ 8 r V ui eN ° > ? _. m o m o HyQ m - m va c ,e o 0 a ? N a R ao '' V A N md _ N m C I ® Z c ` ^ E Q V L tU Ip O y F m6 U . YI O = 7 N LLI N m n . c N .Iln- (L m l° m o 0 x l` Va nm L a .°1 n rr S. W co 0 ; O CF ° NP s I.n J ?LL a ? O o` S e LL O ? m q O E a } Z U zlz I' lc w 1n? a 4 M Lfl } F F I O 1 y , d = ? 1 J Z ¢ ? E m m N W O T O C S WO o -i o E O U / _ v UI ? L a u I P z ¢ 3 I /?qz,4? r l u, ff. 1' ?(_ ... ?•i ( __ ?i- . L .'' I- ii. r 1. a GRAYDON L. MARPOE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. MARSHALL POWELL, a/k/a ERNIE POWELL, d/b/a ERNIE'S MUSTANG DRIVE, Defendant 99-6637 CIVIL TERM IN RE: VERDICT ORDER OF COURT AND NOW, this 15th day of June, 2000, upon consideration of Plaintiff's complaint in the above-captioned matter, and following a non-jury trial, the Court finds in favor of the Plaintiff and against Defendant in the amount of $7,500.00 with interest at the legal rate from March 6, 1999, plus costs of suit. Daniel Pollock, Esquire For the Plaintiff James J. Kayer, Esquire/ J For the Defendant It By the Court, PRO GRAYDON L. MARPOE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. MARSHALL POWELL, a/k/a: ERNIE POWELL, d/b/a ERNIE'S MUSTANG DRIVE,: Defendant 99-6637 CIVIL TERM IN RE: NON-JURY TRIAL TRANSCRIPT Proceedings were held before the HONORABLE J. WESLEY OLER, JR., J., Cumberland County Courthouse, Carlisle, Pennsylvania, Courtroom Number One, June 15, 2000. APPEARANCES: DANIEL POLLOCK, ESQUIRE For - the Plaintiff JAMES J. KAYER, ESQUIRE For - the Defendant 0 .' :; 0-4 GRAYDON MARPO Direct Examination by Mr. Pollock 4 Examination by the Court 18 Cross-Examination by Mr. Kayer 19 Redirect Examination by Mr. Pollock 20 TIMOTHY L. BAT . Direct Examination by Mr. Pollock 22 FO 1 R THE PLAINTIFF - Photograph IDENTIFIED 8 ADMITTED 9 2 - Photograph 8 9 3 - Photograph 8 9 4 - Payment Coupon Book 10 11 5 - Auto Repair order 13 13 6 - Repair Invoice 13 13 2 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 June 15, 2000 Carlisle, Pennsylvania (Whereupon, the proceedings were held at 10:15 a.m.) THE COURT: This is the time and place for a non-jury trial in the case of Graydon L. Marpoe, Plaintiff, versus Marshall Powell, also known as Ernie Powell, doing business as Ernie's Mustang Drive, at number 00-6627 Civil Term. We will let the record indicate that the Plaintiff is present in court with his counsel, Daniel Pollock, Esquire, the Defendant is not present in court, but his counsel, James J. Kayer, Esquire, is present. Mr. Pollock. MR. POLLOCK: Yes, Your Honor. Um -- opening, Your Honor, or do you just wart to proceed? THE COURT: Mr. Kayer, do you want to make an opening statement or do you just wish to proceed with the evidence? MR. KAYER: We can waive openings. THE COURT: Okav. MR. POLLOCK: Okay. At this time I would like to call Mr. Marpoe to the stand. THE COURT: Okay. 3 1 ,:..4 1 2 3 4 5 6 7 8 9 10 li 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Whereupon, GRAYDON L. MARPOE, having been duly sworn, testified as follows: DIRECT EXAMINATION BY MR. POLLOCK• Q Mr. Marpoe, would you please state your name and spell your last name for the record. A My name is Graydon L. Marpoe, M - A-R-P-O-E. Q Okay. And do you have any aliases? A The only thing I go by is Les. Q Okay. Mr. Marpoe, how did you come to do business with Ernie's Mustang Drive? A Towards the end of 1998, beginning of 1999, I was checking around to get a new rebuilt engine for my Bronco. I called different places, and his basically was the same engine, but it was a couple hundred dollars cheaper. So that's how I got -- Q Okay. And what happened -- when -- so you contracted to do the work with Ernie's Mustang Drive. Correct? A Right. What he basically guaranteed was the same thing as the other places did, but as I said, it was a couple hundred dollars cheaper, supposedly. Q Okay. And what happened when you got to -- when you picked up your engine? What happened when you picked up 4 1 your vehicle? A well I picked it up there. I asked him this 2 3 before that, if there was any kind of special maintenance. I 4 asked him if there was any special kind of maintenance to do 5 to the vehicle, since it was a brand new, rebuilt engine. He said, No, the only thing I had to do was change 6 7 the oil at 300 miles, 500 miles, and 3,000 miles, and this was 8 done. 9 Q Okay. What did you believe a warranty on the 10 vehicle was going to be? 11 A What he told me to begin with. It was a brand new 12 factory block out of Houston, Texas or out of Texas, and the 13 rest of it was all my parts redone and put back in like new, I 14 guess, is what you would want to say. 15 Q Okay. 16 A But it was supposed to be a factory block. 17 Q Okay. What have yoi discovered the block to be? 18 A The block comes out the other side of Hanover, 19 it's out of a junk yard, a junk pile, that's what the block. 20 is. 21 Q Okay. 22 A Well, let's put it like this: It either came out 23 of a junk yard in Hanover or it is also believed this might be 24 my own engine, sand blasted, painted, and put back in again. 25 Q Mr. Marpoe -- I i k1 1l. 5 y .Jr MR. POLLOCK: Permission to approach, your Honor. 1 2 THE COURT: Certainly- 3 By MR. POLLOCK: is a copy of the complaint. What is the date 4 Q That 5 that was filed on the stamp? 6 A Date it was filed? 7 Q Yeah. There is a big red stamp on it. s A Oh, November the 19th, 199• Q Okay. Vlill you please just read to yourself the 9 10 allegations of the complaint, it starts on the next page. 11 A (COMPLIED) 12 Q Mr. Marpoe, is that complaint true and correct to 13 the best of your knowledge? 14 A Yes, it is. 15 Q Okay. 16 MR. POLLOCK: Your Honor. for expediency sake, I 17 would like to move the complaint into the record. 18 THE COURT: Mr. Kayer. MR. KAYER: No objection. 19 20 THE COURT: The complaint and -- the complaint 21 will be made part of the record in the case for purposes of 22 the trial. MR. POLLOCK: Mr. Marpoe -- what I am presenting, 23 24 Your Honor, are the answers to the interrogatories against -- 25 for Mr. Powell. 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 THE COURT: Do you want them marked as an lexhibit -- MR. POLLOCK: Well, I am going to move them. THE COURT: -- or did you just want to have part of them made part of the record? MR. POLLOCK: Just part of the record. MR. KAYER: Your Honor, if I may, for sake of expediency, if -- as Mr. Powell is not here to present a defense, if Mr. Pollock wants to establish the damages that he is claiming in this case in his direct examination, I don't have any objection. I don't have authority to stipulate to those once they are established. I don't believe there is much more business before the Court for you to make a judgment -- MR. POLLOCK: Your Honor, under the same circumstances we are claiming an unfair trade practice, and I do believe that I need to establish that, and that is part of what I am doing with the interrogatories. THE COURT: All right. MR. POLLOCK: And also with Mr. Marpoe's testimony. MR. KAYER: Very well. THE COURT: Go ahead. MR. POLLOCK: Will you please read the caption and 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 response for letter A. THE COURT: In other words you want him to read the question and then the response that Mr. Powell made to the questions? MR. POLLOCK: Yes. BY MR. POLLOCK• Q That would all be there. A loud, please A You just want number A, here? Q It's headed Business Contacts. A It says, List all parts, dealers or addresses or phone numbers that provide you and your business with engine blocks and/or cores. Q All right. And the answer? A Carlisle Auto Salvage, Gasoline Alley, Carlisle, Big A, Car Quest, Carlisle, Hartlaub's -- THE COURT: What was that one? THE WITNESS: H-A-R-T-L-A-U-B, Engine Blocks, Cores of Hanover. MR. POLLOCK: These I will mark. We can mark them 1 and then A, B, C. (Whereupon, Plaintiff's Exhibit Nos. 1, 2 and 3 were marked for identification.) BY MR. POLLOCK• Q I am going to give you what's been marked 8 1 Defendant's exhibits 1, 2 and 3. Mr. Marpoe, do you want what 2 Hartlaub's is? 3 A It's a junk yard. 4 Q Okay. And I am going to show you what's been 5 marked as Plaintiff's Exhibits 1, 2 and 3. What are those 6 pictures of? 7 A That's the junk yard we went to see where 8 Mr. Powell gets his blocks. 9 Q Okay. 10 MR. POLLOCK: I'd like to move Plaintiff's 1, 2 11 and 3 into evidence. 12 THE COURT: Mr. Kayer? 13 MR. POLLOCK: Your Honor, I am going to object to 14 relevancy because it has not been established that the actual 15 block that Mr. Marpoe received in his engine that came from 16 this particular location. What has been established is that 17 Mr. Powell has answered under oath that he receives parts from 18 four different suppliers. 19 THE COURT: Plaintiff's Exhibits 1, 2 and 3 are 20 admitted. 21 (Whereupon, Plaintiff's Exhibit Nos. 1, 2 and 3 22 were admitted.) 23 MR. POLLOCK: Mr. Marpoe, what efforts have you 24 made to mitigate your damages due to the loss of your vehicle? 25 THE WITNESS: I rent a vehicle for $200.00 a week 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 le 15 2( 2: 2: 2. 2 2 from my son-in-law. MR. POLI.OCK: Okay. (Whereupon, Plaintiff's Exhibit No. 4 was marked for identification.) MR. POLLOCK: Mr. Marpoe, what is in that receipt book? THE WITNESS: This here -- THE COURT: Is this -- has something been marked as an exhibit? MR. POLLOCK: Yes, Number 4. THE COURT: Plaintiff's Exhibit 4? MR. POLLOCK: Yes. THE COURT: And what is that, Mr. Marpoe? THE WITNESS: It's the receipt book of what I pay my son-in-law every week. THE COURT: Okay. THE WITNESS: $200.00 from Sunday to Saturday. MR. POLLOCK: Okay. What is the first date in that? THE WITNESS: Here it's July the 3rd to July the lOta. s MR. POLLOCK: All right. Now -- L THE COURT: Of what year? 5 THE WITNESS: Of 1999. 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 BY MR. POLLOCK• Q And is that continuing to present-? A It's all but one week short of being up to date -- no, it's two weeks behind. Q Okay. And what's the last number of the receipt there? A The number itself or the date? Q The number of the receipt? A 48. Q Okay. So it's your testimony that you've made 48 payments for which you have receipts for, and two that you don't. A Right. Q Okay. MR. POLLOCK: I'd like to move exhibit number 4 into evidence. THE COURT: Mr. Kayer? MR. KAYER: No objection. THE COURT: All right. Plaintiff's Exhibit Number 4 is admitted. (Whereupon, Plaintiff's Exhibit No. 4 was admitted.) MR. POLLOCK: Now, Mr. Marpoe, did you make another attempt to limit damages as to weighing out the 200 a week for your vehicle? 11 1 THE WITNESS: How am I Supposed to say that? 2 Sometime back I took the Jeep over and got it repaired with 3 the damage slip that I had gotten from the other mechanic. I 4 went and took money out of my own pocket for the rear seal, 5 and the other difficulties that we found externally on the 6 engine, and it wasn't the rear seal. Now, instead of it using 7 a quart of oil every three days, it is every two days, which 8 is for me roughly 240 miles. 9 I might add, I regret getting the rear seal done 10 because the mechanic said that might be the cause of me losing 11 oil. I did get that repaired, and that is not the cause, it's 12 just a worthless engine. 13 (Whereupon, 14 Plaintiff's Exhibit Nos. 5 and 6 15 were marked for identification.) 16 BY MR. POLLOCK: 17 4 I am going to show you what's been marked as 18 Plaintiff's Exhibit 5 and 6. Will you please tell the Court 19 what they are? 20 A When the mechanic came to my house, here, he is 21 the one that checked the external part of the engine because 22 Mr. Powell said that he wasn't going to look at it unless I 23 paid money out. 24 So I had a mechanic core to the house and check it 25 out, and this here is all of the defaults they found on the 12 -1 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 external part of the engine Q Okay. THE COURT: Plaintiff's Exhibit 5 is what? MR. POLLOCK: It is -- THE COURT: No, I need the witness to say what the exhibit is. THE WITNESS: The mechanic can came to my house because I wasn't allowed to move the Bronco, and he came to the house and checked the external part of the house, and this here is all of the faults that he found that was wrong with the engine. THE COURT: And what's Plaintiff's Exhibit 6? THE WITNESS: And this here is when I took it to the gas station and I got all of the repairs done that's on the mechanic's list. This is what I -- I said I got the rear seal done and everything, giving Mr. Powell the benefit of the doubt because the mechanic said I might be losing the oil through that, but it is not that. MR. POLLOCK: I'd like to move Plaintiff's Exhibits 5 and 6 into evidence. THE COURT: Mr. Kayer? MR. KAYER: No objection. THE COURT: Okay. Plaintiff's Exhibits 5 and 6 are admitted. 13 d ,..M F. 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 (Whereupon, Plaintiff's Exhibit Nos. 5 and 6 were admitted.) BY MR POLLOCK• Q Mr. Marpoe, how do you know that the repairs that were made at Newville Auto Service was not the problem? A You mean when Roger did it? Q Yes. A Oh, because now instead -- as I said, instead of using a quart of oil every three days, it's using a quart of oil every two days. I took it out and used it for awhile and kept track -- an eye on the oil itself. Now I have used a quart every two days. Q Okay. A Which is basically an oil change, what, every week and a half? Q I don't know. MR. KAYER: I will stipulate to make part of the record -- I know it is included in the complaint -- but the check that was signed by Mr. Marpoe for the $2,208.88 for the purchase. I believe the number is included in the complaint. THE COURT: So you want that marked as Plaintiff's Exhibit 7? MR. POLLOCK: Okay. MR. KAYER: I believe, Your Honor, what Mr. Pollock was saying that we can stipulate to the amount 14 1 that was paid as consideration to Mr. Powell. 2 THE COURT: okay- 3 MR. KAYER: $2,208 -- q MR. POLLOCK; And 88 cents. 5 MR KAYER: -- and 88 cents. 6 THE COURT: okay- 7 BY MR. POLLOCK: 8 Q Mr. Marpoe, since the complaint was filed, other g than the car -- other than the rental expenses and the repairs 10 to your vehicle, has there been any other expenses that you 11 incurred due to not having your Bronco? 12 A Yes. This past winter I was -- I had to call a 13 tow truck out twice because I got stuck. 14 Q Um, why would that be an expense that you wouldn't 15 have normally had? 16 A 'Cause usually I have the Bronco, which is 17 four-wheel drive. Usually, when I go out early in the morning 18 over the winter months the roads are still unplowed yet, the 19 car is not made for the roads in that area. 20 Q Okay. You mention in your compliant that you are 21 a newspaper carrier? 22 A Right. 23 Q And what is your area? Where do you deliver 24 papers? A I travel from Ne,dville to Colonel Denning State 25 -1 i1 "I 15 r-. i . . 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 Park, just about up to Branch Orchard at Whiskey Run and Big Springs Roads, which is roughly 120 miles every day. Q 120 miles every day, times 7. A Yes. Q Okay. You had made -- before you contracted through your son-in-law to rent his vehicle, you had made several phone calls? A Yes. Yes, I did. Q And why did you offer your son-in-law 200 a week? A Because every place that I had checked was costing me more money than what I was making. MR. POLLOCK: Permission to approach. THE COURT: Certainly. MR. POLLOCK: Mr. Marpoe, are those the places that you contacted? THE COURT: We will let the record indicate that Mr. Pollock has shown Mr. Marpoe some sort of little book. THE WITNESS: These are the phone calls that I made, and the cheapest one is Rent-a-Wreck, and that runs $1,319.00 a month, and it's 20 cents a mile for gas. BY MR. POLLOCK: Q All right. A So that's basically more than what I make a month. Q All right, so 13 1 9. How did you figure 1319 a I month? 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 2.1 25 A That there is the base rate -- flow do I say it, monthly rate? Q Just read the numbers. A It is a monthly rate, and that was the cheapest. And I even went to Rufe Chevrolet, which is Cumberland Auto Park, another dealership, and they are all, like, Rufe Chevrolet is 13 something, Cumberland Auto Park is 13 something, one is 12 cents a mile, the other is 20 cents a mile. So that is way -- Q Now, those numbers that:. you speak of, the $1300.00, is that including what you figure the mileage charge would be? A No, that is flat rate for the month, and 20 cents a mile besides that there. I'm sorry. And mileage. I'm sorry. Q A Q A Q A Park is 539. It did include the mileage. I am sorry. What were the flat rates? You mean just the months? Yeah. Rent-a-Wreck is 519, Rufe is 840, Cumberland Auto Q And when you called, you -- did you have to pay from mile 1 '::hen you called? A Yes. 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 ..._,1 Q Okay. MR. POLLOCK: Nothing further from this witness. THE COURT: Mr. Kayer, do you mind if I ask a couple of questions before you d'art? MR. KAYER: By all means. EXAMINATION BY THE COURT: Q What was the date that you took the car er tr ck in to be worked on, approximately? A It was in February of 1999. Q Okay. And when did you get the truck back? MR. POLLOCK: Your Honor, I might be able to answer that. This is part of the complaint. THE WITNESS: It's on the check. I forget what it was there. The date of it was when we picked it up. He had it for two or three weeks, I believe. THE WITNESS: This is March the 6th of 1999. (Was handed a check by Mr. Pollock.) BY THE COURT: Q And you are saying that it didn't work properly from that date on? A No, it used oil. Well, see, I really didn't know about it because he said change the oil at 300 miles, change it again at 500 miles, and the third time was for 3,000 miles. That's when we started noticing that it was using oil. 18 - ? 1 THE COURT: Mr. Kayer. 1 ?i 2 CROSS-EXAMINATION 3 BYBY MR. YER: 4 Q You indicated that you observed the vehicle i 5 6 burning oil at a rate of a quart every three days, initially? A Yes, originally. 7 8 Q After it was serviced by Newville Auto Service it actually got worse? 9 1 10 11 A After he replaced the rear seal and done the other external jobs that the mechanic found on the engine itself, yes, it was worse. 12 13 Q And your testimony is that you paid $200.00 a week in rent to your son-in-law for the use of a vehicle? 14 ? A Yes. 15 Q Did you investigate I purchasing a vehicle instead 16 of spending $800.00 a month paying that to a relative? 17 18 19 A I can't afford it. we borrowed the money -- Q But you are paying $800.00 a month to a relative. A Right. 20 Q Surely you could have purchased a vehicle for less 21 than $800.00 a month -- 22 A Not unless I go into debt further -- 23 24 Q Did you investigate purchasing a vehicle at all? A Yes, we have. 25 Q I also believe that your testimony was that the i 15 Mna:j 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 Rent-a-Wreck charge would have been about $1,319.00 a month, and you commented that was more than what you make? A Right. Q How much do you make from your job? A Roughly -- I am going to say anywhere from $350.00 to $400.00 a week. Q So you were paying at least half of. what you earned each week on this rental car ErOM your son-in-law? A Right. MR. KAYER: I have nothing further. THE COURT: Mr. Pollock. MR. POLLOCK: Just one question. REDIRECT EXAMINATION BY MR. POLLOCK• Q You had testified as to a warranty that you had originally contracted with. was that warranty different when you picked up the vehicle? A Right. He didn't tell us anything about the warranty until the day we picked it up and paid for it. Q Okay. And what was the warranty on the vehicle? MR. KAYER: Your Honor, 1 object. These questions go beyond the scope of the cco:;: examination. MR. POL,LOCK: The:;e -- MP.. KAYER: Thin iH iitrct examination all over again. 2 0 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. POLLOCK: Your Honor, a little bit of leeway. This is basically in reference to the questions you had -asked. THE COURT: You may ask the questions. MR. POLLOCK: All right. What was the length of the warranty? THE WITNESS: It was supposed to be 30 days or 6,000 miles, I believe. MR. POLLOCK: Mr. Marpoe, what is that? THE COURT: We will let the record indicate that counsel is showing a piece of paper to the Plaintiff. THE WITNESS: This is the paper that Mr. Powell gave me the day that we picked the Bronco up. BY MR. POLLOCK: Q And what does it say the warranty is? A 6000 miles or 6 months, whichever comes first. Q Okay. All right, March to July is not six months. In that time did you drive 6000 miles? A No. Q Okay. You testified earlier that your route is about 120 miles a day. That would easily come over 6000 miles. Why didn't that vehicle go -- A Because I wasn't using it the whole time. Q Okay. Why weren't you using it? A I was getting a transmission put into it so I had a new engine and a new transmission. 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 is 16 17 18 19 20 21 22 23 2:} 25 Q Did you have a back-up v(h i c l c•? A At the time, yet. Q And why don't yuu n.,•• A It seems a d(.ner (;oP to my w.ty ,111(1 it':; c•,rrecked. Q Okay. MR. POLLOC'K: N(41 III 11.1 1 111 1 h(•1 THE COURT: r-11 I;•ty,•r, MR. KAYL•'R: No r, (1(r,1u THE COURT: PJh.It: h.1:1 h•Ipl,( n(•d Lo Ch(' truck? Where is it now? THE WI'1N SS: My Itr„ncn );; :It i l 1 :;,Acting at the house. THE COUR'T': Afnl y"11 In rn:,t driving it? THE PJl'I'IJI'.:;:;: F:v,•ry "Cl- „111 .1 whiac we drive it, yes. It's the only I:,IIin'1 w(• '!.111 d.,, THE C,)11R'1': C)hrry. Yu11 111•Iy :,tcp down. Thank you. TIIE you. MR. 110I11.OCK: 1 'd 1 ik(• to cztll -- just quickly call 'T'im Hatzel t.., th( ut nn 1. Till; ('UIIRT ol:.,y. Whereupon, TIMOTHY L. BATZEL, having been duly sworn, testified as follows: DIRECT EXAMINATION BY MR. POLLOCK: 22 u -4 E 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Mr. Batzel, will you please state your name and spell your last name for the record? A Timothy L. Batzel, B-A-T-Z-E-L. Q Okay. Mr. Batzel, how do you know Mr. Marpoe? A My father-in-law. Q Are you the son-in-law he rents a vehicle from? A Yes, I am. Q Okay. And is it accurate he is paying you 200 a week for the rental of the vehicle? A Yes, he is. Q Okay. Mr. Batzel, had you ever been into Ernie's Mustang Drive? A Yes, I was. Q Were you present when Mr. Marpoe or Mrs. Marpoe were negotiating about the vehicle or the engine? A Yes. Q Okay. Did Mr. Marpoe make any reference to you as to where the engine had come from or while you were present? A While -- we went up and dropped the Bronco off and walked around into his garage, and were talking about it. He was telling us where he gets his blocks of engines from. He had one there setting on the ground, and he said that one there came from Texas. He said all of his blocks come from Texas, straight from the manufacturer. Q Okay. Was Mr. Marpoe with you that day? i 23 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 Yes, he was. Q Okay. MR. POLLOCK: Nothing further. THE COURT: Mr. Kayer. MR. KAYER: No questions. THE COURT: You may step down. Thank you. MR. POLLOCK: Your Honor, at this time I am -- the Plaintiff rests. THE COURT: Mr. Kayer. MR. KAYER: The Defendant rests. THE COURT: Okay. Did counsel wish to make closing arguments? MR. POLLOCK: Yes, Your Honor. THE COURT: All right. We will let Mr. Kayer go first, and then hear from Mr. Pollock. MR. KAYER: Your Honor, it's our position that this was a transaction. Whether the Plaintiff knew or should have known what he was getting into, he testified that he comparison shopped. He found Mr. Powell's offer to be the best. He relied upon that offer. The offer is an exhibit within the complaint in terms of an advertisement. The transaction occurred. Mr. Marpoe expressed dissatisfaction with the work, but never allowed Mr. Powell to abide by the terms of the warranty. MR. POLLOCK: Objection, Your Honor, as facts not 24 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 in evidence. THE COURT: It's a non-jury trial. If they are not in evidence, I will disregard them. MR. KAYER: At no time did Mr. Marpoe allow Mr. Powell to approach the vehicle to get it fixed. Mr. Marpoe has not done his job of mitigating his damages. The $200.00 a week in rental, which is by far his largest portion of damages is an excessively high figure. It's readily apparent that a vehicle could be purchased for less than $800.00 per month, and this is a transaction Mr. Marpoe has continued presumably because it's money that is staying within the family. With regard to the unfair trade practices element of the complaint, it's our position that Mr. Marpoe knew what he bargained for, that there was no fraud or deception on the part of the Plaintiff. The Plaintiff advertised a rebuilt engine. He did not advertise a factory rebuilt engine. The sales invoice indicates a rebuilt engine, not a factory rebuilt engine. The sales invoice clearly states the terms of the warranty. Mr. Marpoe did not comply with the terms of that warranty. Mr. Marpoe, if he has a complaint, did not follow through on it as he should have. And for that reason, we believe that he has not sustained his burden of proof, and that a judgment in favor of the Defendant is appropriate. 25 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 COURT: All right. Thank you. Mr. Pollock. MR. POLLOCK: Yes. Your Honor, based on the complaint, Mr. Marpoe tried several times to have Mr. Powell fix the motor and whether he -- which finally ended when Mr. Powell threatened to have Mr. Marpoe arrested for harassment. After that point there is really no need for him to try to pursue getting his motor fixed pursuant to a warranty that Mr. Powell refuses to honor, and besides which risks legal action being taken against him. Number two, in spite of what the ad says, there was definite testimony as to questions as to, while they were in the shop, what type of rebuilt engine it was, and where the motor was coming from, and this was before the work had started. The testimony was that the engine block came -- was a factory job done from Texas, and in reality the engine block is a piece of -- comes from a -- pulled from a junk yard in Hanover, Pennsylvania. One implies that the factory has gone over it, and made certain that the engine was ready and able to be used properly. The second implies that, pull it out, looks good, throw it in, and hope it works. We have fraud and deception on that part. The testimony of Mr. Marpoe, although Mr. Powell 26 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 was the cheapest, he wasn't the cheapest by much. Basically within a couple hundred dollars. So we are talking within the range of what Mr. Marpoe would be expecting to pay for a factory rebuilt engine. Mr. Marpoe, as far as the amounts being excessive, Mr. Marpoe, before he contracted for his son for the use of his car, shopped around. The best deal he could find, figuring the mileage he has to drive, is $1,319.00 a month, which basically would eat up his monthly salary, his monthly earnings from newspaper delivery. Now, yes, if he were grandma, who barely used the car to go to church on Sunday, yes, he could have probably gotten away with 5 or $600.00 a month but he isn't. He uses his car. He uses his vehicle to work. Spending $200.00 a month is mitigating damages when the result would have -- when the result would have been having to give up a distribution job, which pays him between 350 and 450 a week. THE COURT: It was $200.00 a week rather than a Imonth. MR. POLLOCK: I'm sorry. Two hundred a week. It is definitely mitigated, plus -- besides which Mr. Marpoe even tried to mitigate further by trying to have the work done elsewhere, after Mr. Powell had refused to do it. Based on the refusal to honor a warranty, based on 27 .,__ _ ^ G:agA 1 2 3 4 5 G 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the switch in date, of what engine was put into Mr. Marpoe's vehicle, Mr. Marpoe is entitled to damages, and he is also entitled to the punitive damages as spelled out in the unfair trade practices and consumer protection which calls for triple damages plus attorney's fees. And the courts have gone as far Wherefore, we ask for a verdict in the amount of $39,000.00 for Mr. Marpoe's claim. The amounts being listed as the 10,000 for the vehicle rental, the 2200 for his -- for the engine, and the 350 for the repairs. He testified as to having to get pulled out of a ditch from a rented vehicle, and that came to $90.00. So right there we are up over $13,000.00, plus attorneys fees, plus the extra witness fee, at the summary level, who had a bill of $156.00. My fee at this point has come to $1,000.00. THE COURT: Okay. MR. POLLOCK: Therefore we ask for a judgment in the amount of $39,000.00. Thank you. THE COURT: All right. Thank you. THE COURT: We will enter this order, which will be labeled verdict: And now this 15th day of June, 2000, upon consideration of Plaintiff's complaint in the above-captioned matter, and following a non-jury trial, the Court finds in favor of the Plaintiff and against Defendant in the amount of $7,500.00 with interest at the legal rate from March 6, 1999, 28 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 I--? r-- plus costs of suit. Okay. Thank you. MR. POLLOCK: Thank you. THE COURT: Court is adjourned. MR. POLLOCK: Your Honor, only the 7500. Can we have a breakdown on same? THE COURT: That's the verdict. (Wheruepon, court adjourned at 11:00 a.m.) 29 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. 0 l ? AA n o raine K. Troutman, RPR The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. !Date Wesley olei? Jr.U J. nth Judicial District 30 -?.. i. ?, ., 4? Y,• n v i q 4 ?, _? ?' i ..: NEWVILLE AUTO SERVICE 103 FAIRFIELD ST. NEWVILLE, PA 17241 776-3507 Estimate PAARPOE, LES 1987 Ford Bronco II DESCRIPTION I SPAKKIIIJI(i WIRLS .. ROAR SIiAI. (ISH)TIRF. } ?lre 5 ee-pc6 r q"). TcY 1? LOWER TRANSNISSRIN 10 REPLACE REAR LN61NI_ sl:AI . CI1AN61' IIRI'k SIb1RKPLU(i U9RIiS' I I(H 11 FNUANIFOLD ROL I S Worksheel Discount i'ari S 5;4.94 0.00 Labor S 280.1111 0,1111 F) L?s,akee( (net_p) 45r()r-\+ brakQS ?•IS"•? a,lLT 1.00 14.75 14.75 Hun 15.00 15.00 280.00 Tax Total 3.54 62.48 16.80 296.80 6sti uate'rotal 5359.28 -hvfcLL 4q63. )s Date Printed: 10113/99 TIME PARTNO QTY PRICE EXT PARTS 1.00 27.17 29.19 8.75 Supplies Ilazaul 0.00 0.00 GF,o0 4J 36, 60 Page: 1 a J:N/1'Y•' AUTO REPAIR ORDER 11 i 1 (? \ 'y u NAME Y ADDRESS 2NN CITY, STATE Q A o A- Q\1 C? \ci C • • Mull : .!CUS*TOMER'S INFORMATION , , DATE CUSTOMER'S ORDER NO. WHEN PROR115FD PHONE C? ,IV r4 EA ..AK -1,( E SERIAL IN-No IN NO LICENSE NO. 000. 1E1 R W iN\ 'r FLUSH FLUlH ? ? LUBE RANS. ?DI F. ?WASH ?POLISH CHANGE ?T n IN C , ? ? VGA S V-T ? Val V? \S / • • - LABOR ONLY / GALS. GAS PARTS TOTAL PARTS OTS. OIL ACCESSORIES • . • k, k, I ISMOM LB S. GREASE GAS. OIL. & GREASE TOTAL GAS MISC. MERCHANDISE - GREASE SUBLET REPAIRS ? ?R AIN PART i ?D S RS ROY lorAE nCCESSORiES TAX ESTIMATE AMOUNT • PARTS & LAB O Aui RED ` ? 1 TOTAL ?I IlElaer.wnol.¢nE.mvE nErvn wonrzmxmEU HQSNMWIEM14.MOIEPFBYLR41tYWM0M1QR1 [Y surf rannEn(w.TSrawvE fICC}ET cnEnun ??.,.,??...,.... ..Yyyn'TM• nE [SfYI1E N1 WlYpln rind. iIAiEBI S ED 164b1 I06f1UIETE Wl M I YFIOCIE nE STYktS IYIM•YSW ELSEMEnE rOR n4 Cf T TE YpFI STN?IE WE llV1WJI[ E4'IU1 . 5D 1 w•up..n nn iron w W ntHnmN.gla.pu.•.uwtl IBO.4 LYlfN.GpIYFIK GAdans GT3870 Ids vo`riawliaivim"ESEmr,ESrcarnrtiuo w' 1:?..., .,..?,.,. to IS,5 L ?T AUTO REPAIR ORDER M 1 PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing the notice of appeal. Chock applicable boxes) COMMONWEALTH OF PENNSYLVANIA COUNTY OF Ctimhprl and -- AFFIDAVIT: I hereby swear or affirm that I served ? a copy of the Notice of APO,. Common Pleas No.99=6-63.] upon the District Justice designated therein on (date of service) November S .19 99 ? by personal service ? by (certified) (registered) mail, sender's &radon Marpoe receipt attached hereto, and Upon the appellee. (name) ' on November 4 . 713999 n by personal service LAP by (certified) (registered) mail, sender's receipt attached hereto f t&a.4- $j recgigts?x lit "All ? and further that l served the Rule to File a Complaint accompanying the above c r al upunt to ppeleo r whom the Rule was addressed on .19- "" ? by personal service El by (certified) (registered) mail, sender's receipt attached hereto. - SWORN (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS DAY O.F? .195_LKr>.?? r ?j ?r : ? n ?? \ Si nelu re of o iYYa bolo o whom A a(h vit wm- o ? i - My,commission expires on. 19 NOT DENISE PINPublic =N- _ ? M msst C ['i COMMONWEALTH OF PENNSYLVANIA NOTICE OF APPEAL COURT OF COMMON PLEAS FROM ,M JUDIVAL DISTRICT \i DISTRICT JUSTICE JUDGMENT CUMBERLAND COUNTY COMMON PLEAS Na 99 GG3', ?n,Q Jzµ. 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 on the date and in the case mentioned below: MARSHALL E. POWELL ?d`/V/a ERNIEI'S MUSTANG DRTVR 3-9 - - ~- •PPs 191 CRATNES GAP ROAD, CARLISLE PA 1 NiIE (NUVOeI /99 GRAYDON L. MARPOE, JR. CV 19 99-0000340 IT 19 Thu block will be signed ONLY when this notation is required under Pa R.C.P.J.P. Na c - . /appel s C IMANT (see Pa. R.C.P.J.P. No. 10088. - ?. This Notice of "Appeal, when received by the District Justice, will operate as a 1001(6aCtlo beforeDistrict Justice, he MUST I SUPERSEDERS to the judgment for possession in this case MPLAINT FILE A within twenty (20) days after filing his NOTICE of APPEAL. " ignature of Prothonotary or Depury PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE y .?? (ilrfs section of form to be used ONLY when appellant was DEFENDANT (see Pa. RC.PJ.P. No. 1001(7) in action before District Justice. "IF NOT USED, detach from copy of notice of appeal to be served upon appellee). PRAECIPE: To Prothonotary a . En?er rule upon GRAYDON L. f iARPOE. JR. appellee(,), to file a complaint in mis appeal . Name of appellee(s) ` (Common Pleas No 99- L L T,ce,.... )within twenty (20) days after se; ice of rule m suffer entry of judgment of nw prof, l ' l .. r I i INI rfM. ?. ) Pi . ? fh of t(goeU9nt or lus allumey or agent silInaturp i,. o~.` RULE: To GRAYDON L. MARPOE,JR. appellee(s). / - .. , Nana of epeelkWs) , ? y: (I) You are notified that a rule is hereby entered upon you to file a complaint in this a eat within twenty (20) days after the dale of service of. this rule upon you by personal service or by certified m registered mail (2) If you ado 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 Date: 7'tuvc.,-?r,.. , 19?` . - ??yr.? (.c • ?LIi,., rl.,r'?0.[c . `" of a Deputy . /.OPC 712-91 COURT FILE EXHIBIT "A" o SENDER: v ,Wmplate etims 7 and/or 2 far addlionaf eeMOes.? I also wish to receive the following services (for an q m :Complete name 3. 4a, and 4b. : ePdnd your name and address on the raw= of this farm w that we oen return this BXifB tae) E i o j card to you. Allwh Ws form to the from of the mdlpiooa, or on the beck 6 space does not 1. ? Addressee's Address fl03Mded Delivery t 2 9i 1 peM . .Wdteurn Receipt Requ Whom the pleM below Meerllclenate amre Return Recetpl will etww to lowhom the enldewae doevwedmld the date Consult postmaster for fee. delivered. 3. Article Addressed to: ? ?•-? 4a. Artlde Number ?K1 z 35S 9 (4S E ?, ? / ?(:G(Cll.,?l?? ??"?C-- 4b.SeMceType o. $ (? (y S•?' \S Pak -:-L 1Qc g stared El Certlfled d I U t 1? a 3 ? Fxpr Mali ? Insure alum Receipt for Me d endise ? COD o• """ i?eii?rey' to aGt?r?"3Ele one 7. Date of Delivery I Z n e. Addressee's Address (Only it requested 5. Race ed By. (P of Name) a ? nl M A! f>cc° G and lee is paid) ? ? n, g 6. Slgna re: (A ress rA nr) I T ecember1994SV'e-0179 DomesticRetumReceipt i .2 PS o 3811 , ' m SENDER: ?--.- I also wish to receive the I v eComplme Namel an/or 2 for eddl0onel UnIms. following services (for an m m eComplute home 3, 4a, end 4b. epdm your name and address on the remorse of this IoM M that we Mn ietum this extra lee): 3 ? card to you. .Mach this form 10 the from of the mailpleM, or on the beck if BOOM does not 1. 0 Addressee's Address . Z permit. Write -Return Receipt Requesled'on the maiiplow below the anlde number. 2.? Restricted Delivery 0 n The Return Receipt will Show to whom the slide was delivered and the data Consult postmaster for lee. delivered. (Y ?, ., cZi „Ott l ?k 3. ArtICIO Addressed to: W?cQot?Sh??onn?occ FC, ??slclcr Ceur} o?-?-oar. " ?O `t'ook 155 , a? W, f31?S'?t'Inc1 ?U-tr??? ? Nc?oulltC.. ?? tld?tt 1? 15? 5. Received BY: (Pdnt Name) g 6. Signature: (Addressee orAg q 9a Article Number VGa. 35S °tSc? e 4b. Service Type m ? Registered B-Carti6ed ? Express Mail ? Insured 5 m alum Receipt for Merchandise O COD 7. Date of Delivery 0 6. Addressee's Address (Only9 requesfetl c and !ee is paid) m I` • r X I PS Form 3811, December 1994 tgesas.ar 0-0Ira