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HomeMy WebLinkAbout03-3565DICKINSON COLLEGE, : Plaintiff : DANIEL M. DRAGON, : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. OOo CIVIL ACTION-LAW JURY TRLAL OF TWELVE DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and 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 Plaintiffs. 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 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 Dated: MARTSON DEARDORFF WiLLIAMS & OTTO Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff DICKINSON COLLEGE, Plaintiff DANIEL M. DRAGON, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. CiVIL ACTION-LAW JURY TRIAL OF TWELVE DEMANDED COMPLAINT AND NOW, comes Plaintiff, Dickinson College, by and through its attorneys, Martson Deardorff Williams & Otto, and hereby avers as follows: 1. Plaintiff Dickinson College, (hereinafter"Dickinson"), is a Pennsylvania educational institution with its principal offices located in Carlisle, Cumberland County, Pennsylvania 17013. 2. Defendant Daniel M. Dragon, (hereinafter "Student"), is an adult individual whose last known address is 150 Union Street, Nassau County, Mineola, New York 11501. below. 4. COUNT I DICKINSON COLLEGE v. DANIEL M. DRAGON BREACH OF CONTRACT Paragraphs 1 through 2 are incorporated herein by reference as if set forth in full Student opened a Student Receivables Account ("Account") with Dickinson to pay tuition, dining service fees and other educational expenses provided and rendered to Student by Dickinson. A tree and correct copy of that Account is incorporated by reference and attached as Exhibit "A." 5. Student, by opening the Account and using the goods and services provided by Dickinson, agreed to pay Dickinson for all charges made to the Account. 6. Student received and accepted all goods and services provided by Dickinson and thereby agreed to payment for said goods and services. 7. The terms of repayment required Student to pay all balances 14 (fourteen) days before the beginning of each semester. due. 9. default. 10. 11. Student defaulted on the repayment of the Account by not paying the balance when Notices were forwarded to Student informing him of his default and ri ~:~ht to cure such Student failed to cure such defaults. The total amount which is immediately due and payable to Dickinson by Student on the Account is Seventeen Thousand Four Hundred Seventy-Two Dollars and Thirty Cents ($17,472.30). WHEREFORE, Plaintiff Dickinson College demands judgment against Defendant Daniel M. Dragon in the sum of Seventeen Thousand Four Hundred Seventy-Two Dollars and Thirty Cents ($17,472.30), plus late fees, costs of suit, attorneys' fees and collection costs, and interest from date of judgment. COUNT II DICKINSON COLLEGE v. DANIEL M. DRAGON IN QUANTUM MER UIT In the alternative, if this Honorable Court should determine that an express contract between Dickinson and Daniel M. Dragon does not exist, which is denied, Dickinson pleads the following: 12. Paragraphs 1 through 11 are incorporated herein by reference as if set forth in full. 13. Because Dickinson loaned money to Student, to the benefit of Student, Student became liable to Dickinson for said money. 14. Student was unjustly enriched by accepting said money without paying Dickinson reasonable compensation therefor. 15. The total amount by which Student has become enriched is Seventeen Thousand Four Hundred Seventy-Two Dollars and Thirty Cents ($17,472.30). 16. Dickinson demanded payment of the above sums but Student failed and refused to do so. WHEREFORE, Plaintiff Dickinson College demands judgment against Defendant Daniel M. Dragon in the sum of Seventeen Thousand Four Hundred Seventy Two Dollars and Thirty Cents ($17,472.30), until Daniel M. Dragon's obligation is paid in full, plus late fees, costs of suit, attorneys' fees and collection costs, and interest from date of judgment. Date: 7//~5~/~ B By I. D. Number 87326 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff ~HHHHHHHHHHH ~OOOOOOOOOOO ~OOOOOOOOO 000000000©0 0~0~0~00~ ~HHHHHHHHHHH ~OOOOOOOOOOO ~OOO~ OOOO0000000 ~OPHHHP~O H ~OWO~O~O ~4~0000040 ~0000000 ~HHHMHHHHHHH ~00000000000 ~O00~M~ ~O00q~POW~H~ ~000~~ ~ O~OOOO~OOO o~ o O0000000NHN W~WMOOQ~OhO HPHOM~W~O~ 0. 0 U O H H 0 U 0 Z Z -4 0~ HWO~ ~O00 0 < H > H 0 0 C Z H o2 H~¢ > \ U > > 0 Z ~XHIBIT "A" H ~HHHHHQHHHHH 0 ~OOOOOHOOOOO I ~ ~l II P. ~o ~ o~. 0 ..8~ O ~OOOO OOOOO0 \ ~HHHHHHHHHHH ' ~HHHHHHHHHHH ~00OOOOOOOOO QCqo~oooo~oH UOOO~OM¢~OOO OOHHHHHHHHH ~OHH~ Z~ 'n~aaaa ~HHHHHHHHHHH ~O000OOOOOOO ~O~OOq~e~ ' ~000~O000 ,,OO ~HOQOOOOOOO ~HHHHHHOOHHH ~OOOOOOHHO00 ' O~O~OOOOa~H ~0~0~00 OOMP~HOOOOO OHO~OO~OO · aOOGO~HHBaH ~H~ OB H H ~ 0OOOOO~O~0 ~OGOOO~B~ ~ O00OOO~O0~ qOqOOOO~O~ ~ O~O000qO0~ HO~OOO~O~ OOO O~¢H q~OOOOO0~O~ ~&OOO0OO~O~ ~00000O~O~ OOOO GO000000~ O~H H ~ OB ~OO~Oqq~ ~O~O~O~H~ D¢OOOO¢~H~ hO~OGqO~O O~OOOOO~D~ ~O¢O~OG~OO qOOOOO0~ OOqOOOO~O00 0 O O OO HH ~O~O000~ MM~O~O~ HI-' O0 O0 ~,0 O0 H~ r~ ~HHHH HHHHHHH ~00000000000 ~HHHHHHHHHH~ ~O~HHHHHHHHH ~O000000000N ~HO000000000 ZP- 00OOOOOOO ~HHHHHHHHHOH ~HQHOHMHHHH ~OO00OOOOOHO ~O~OPOOOO00 ^~ ~g~ ^~0000~ ^qOOOOOOHN~H ^~HHH~M~ ~00000~000 ~000~000~0 ~O~O0000~gO0 ~O0~HO~HO~ ~00~0000000 ~ ~O~OH~ ' ~0~0~00 ' 0~0~0~0~ ' ~O~HdO0~O~ ' 00~00~0~ ,,0~ eOOO~e OOOO OOOQOOO O0 q~O~OqO~O0~ ~O~q~ OH ~O~O~qO~ ~0~ OOOOOOOOOO0 ~O000000HO H ~o~P~oeo ~0OOO0 ~H ~0 ~ O0~O OOOO~H~H OO00~H~ ~HHHHHHHHH~H ~OOOO00000~0 ~0~O~0~ Q~H~O~HO0~ ' ~H~O~O0~ 0 ~p.~o~ ~ 0 ~ 0 O0000OO0000 O~O~O00~H~ M~0HHHHHHHHH ~O~OOOOOOO00 ~H~OOOO00 O~OHH~O000 ~00 ~ 0d0~ LZJHHHHHHHHHHH ~oooo0000000 ~'~¢H~O00~O0~ ~ U~ 0 ~ H C8 CD O~ (0 ¢, 0 L,q ON'q~OOOOOO~Ok~ · 00 ~. ~ 0 ~. C~ FO P 0 FO '~(~ I P'~] ~ ~]d'P'Nf~ ~J~ [~O I I0~¢ ~ 0 P.k'rt H H-~ ~ O H LOOf91919000 k~ ~HHHHHHHHQ ~00000000~ ~HHHHHHHO ~OOOOHHqO 02~0~ ~¢e0~¢~ 0 ,.QD~DO HHH~HOOOO 0~ O~OOO OOO O000O~O~ 000 000000~00~ 000 000000~00~ OOOOO~H~ ~HOOO000~ ~0000000 ~O ~ DOOO~HH ~ ~ ~O00~&~ MOOO~O~Op~ ~OOO~HO~O~d QQQQ H~O~O~OO ~OO~OHOOOO HH H H H O..4~ ~U~HU10~ U~ OO~lb~qOO0~ ~HHH~HH ~000000 O000~H ^~00 ~P.~o 000000 ~O000H ZO000000C ~qOqO0000 ~000~ ~000~ ~O000HNO0 ~0 0~ N~N ~ 00~ 0~0~ o0~00 O00qMO~ 0000o0 O00~¢O~M O0000O O000OO~ 00~000 000~00~0 000000 000~00~ 000000 000000~ VERIFICATION The foregoing Complaint is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of the document is that of counsel and not my own. I have read the 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 content of the document is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unswom falsification to authorities, which provides that if I make knowingly false averments, I may be subject to criminal penalties. Dated: '?/'~'~/'~ Thomas B. Meyer .'~ECEIVEL JUL 2, .3 2009 ~4DWr' DICKINSON COLLEGE, : Plaintiff : 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-3565 CIVIL ACTION-LAW DANIEL M. DRAGON, Defendant JURY TRIAL OF TWELVE DEMANDED PRAECIPE TO DOCUMENT SERVICE PURSUANT TO THE PENNSYLVANIA LONG ARM STATUTE I hereby certify that a copy of the Complaint was personally served on Steve Proscott, father, of Daniel M. Dragon at 150 Union Street, Mineola, New York 11501 on August 8, 2003. Attached is the Affidavit of Service indicating same. M~ARTSON DEARD RFF W1LLIAMS & David R. Galli~ I.D. No. 87326 Ten East High Street Carlisle, PA 17013-3093 (717) 243-3341 OTTO Date: August 12, 2003 Attorneys for Plaintiff AFFIDAVIT OF SERVICE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DICKINSON COLLEGE, INDEX #: 03-3565 CIVIL Plaintiff(s) Petitioner(s) - against DANIEL M. DRAGON, Defendant(s) Respondent(s) STATE OF NEW YORK: COUNTY OF NASSAU: ss: ATTORNEY FILES 7619C.128 JEFFREY M. CAR:BONE, BEING DULY SWORN DEPOSES AND SAYS DEPONENT IS NOT A PARTY TO THIS ACTION AND IS OVER THE AGE OF EIGHTEEN YEARS AND RESIDES IN THE STATE OF NEW YORK That on 08/04/2003, 07:31AM at 150 UNION STREET,MtNEOLA NY 11501, deponent serced the within COMPLAINT WITH NOTICE on DANIEL M. DRAGON, a defendant in the above action By delivering a true copy thereof to and leaving with STEVE PROSCO'I-r/FATHER, a person of suitable age and discretion at the above address, the said premises being the defendant's dwelling place/usual place of abode within the State of NEW YORK. Deponent completed service by depositing a copy of the above described papers in a post paid, properly addressed envelope in an official depository under the exclusive care and custody of the United States Post Office in the State of NEW YORK, on 08/05/2003 addressed to defendant DANIEL M DRAGON at 150 UNION STREET, MINEOLA NY 11501 with the envelope bearing the legend PERSONAL AND CONFIDENTIAL and did not indicate on the outside thereof that the communication was from an attorney or concerned an action against the defendant. DEPONENT DESCRIBES THE INDIVIDUAL SERVED AS FOLLOWS: Sex M Approximate age 50 Approximate height 5'09" Approximate weight 180 Color of skin WHITE Color of hair BLONDE STEVE PROSCOTT told the deponent that DANIEL M. DRAGON was not presently in the military sei~4ce of the United States Government or on active duty in the military service in the State of NEW YORK or a dependent of anybody in the military. MARTSON DEARDORFF WILLIAMS & OTTO TEN EAST HIGH STREET CARLISLE, PA 17013 (717)243-3341 Sw~m to before me on 0~05/2003 MAUREEN MCCAFFREY NO.01MCS018583 NOTARY PUBLIC, STATE OF NEW YORK QUALIFIED IN NASSAU COUNTY COMMISSION EXPIRES OCTOBF~R 4, 2005 CERTIFICATE OF SERVICE~ I, Christina N. Yost, an authorized agent for Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Mr. Daniel M. Dragon 150 Union Street Mineola, NY 11501 MARTSON DEARDORFF WILLIAMS & OTTO Christina N. Yost Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: August 12, 2003 DICKINSON COLLEGE, PLAINTIFF : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA DAINEL DRAGON, DEFENDANT v. : NO. 03-3565 CIVIL TERM : : CIVIL ACTION-LAW : NOTICE TO PLEAD TO: Dickinson College You are hereby notified to file a written response to the enclosed Answer and New Matter within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully Submitted TURO LAW OFFICES Date Daniel D. Wodey, Esquire 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorney for Daniel Dragon DICKINSON COLLEGE, PLAINTIFF DAINEL DRAGON, DEFENDANT : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 03-3565 : : CIVIL ACTION -LAW CIVIL TERM 2. 3. 4. 10. 11. 12. ANSWER TO PLAINTIFF'S COMPLAINT AND NEW MATTEF~ Admitted. Admitted. No responsive pleading required. Neither admitted nor denied. Defendant is without sufficient information to answer this allegation and proof of the same ~s demanded at trial. Neither admitted nor denied. Defendant is without sufficient information to answer this allegation and proof of the same ~s demanded at trial. Neither admitted nor denied. Defendant is without sufficient information to answer this allegation and proof of the same is demanded at trial. Neither admitted nor denied. Defendant is without sufficient information to answer this allegation and proof of the same is demanded at trial. Neither admitted nor denied. Defendant is without sufficient information to answer this allegation and proof of the same ~s demanded at trial. Neither admitted nor denied. Defendant is without sufficient information to answer this allegation and proof of the same is demanded at trial. Neither admitted nor denied. Defendant is without sufficient information to answer this allegation and proof of the same is demanded at trial. Neither admitted nor denied. The allegations in this paragraph are legal conclusions to which no responsive pleading is required. If a responsive pleading is required it is denied that the total amount due to Dickinson College is $17,472.30. No responsive pleading required. 13. Neither admitted nor denied. The allegations in this paragraph are legal conclusions to which no responsive pleading is required. If a responsive pleading is required it is denied that Daniel Dragon is liable to Dickinson for any sum of money. 14. Neither admitted nor denied. The allegations in this paragraph are legal conclusions to which no responsive pleading is required. If a responsive pleading is required it is denied that the student is liable to Dickinson for money. 15. Neither admitted nor denied. The allegations in this paragraph are legal conclusions to which no responsive pleading is required. If a responsive pleading is required it is denied that the student is liable to Dickinson for money. 16. Neither admitted nor denied. Defendant is without sufficient information to answer this allegation and proof of the same is demanded at trial. WHEREFORE, defendant Daniel M. Dragon respectfully requests that this Court enter Judgment in his favor and against the Plaintiff Dickinson College NEW MATTER 17. Plaintiff's Complaint fails to show an express contract between Dickinson College and Daniel Dragon. 18. If there is an express written contract, which is denied, between Dickinson College and Daniel M. Dragon, the alleged charges made pursuant to said contract ended Mamh 31, 1998. (see Plaintiff's Exhibit A) 19. If the alleged express contract between Daniel M. Dragon and Dickinson College did exist, any claims thereunder are barred the four year Statute of Limitation, 42 Pa.C.S.A. § 5525. 20. Plaintiff's claims in Quantum Meruit are barred by the four year Statute of Limitation, 42 Pa.C.S.A. § 5525 (4). See Fowkes v. Shoemaker, 443 Pa. Super. 343 at 350. 21. Plaintiff has failed to bring an complaint until after five years from the last alleged charge to the book store for miscellaneous purchases by the defendant dated March 31, 1998. 22. During the elapsed time defendants father, who was financing defendants College education has passed away. 23. Due to the passage of time defendant no longer has any records, if they existed, to prove or disapprove Plaintiff's claims. 24. Defendant was lead to believe that Dickinson College was no longer pursuing its alleged claims. 25. Plaintiff's unreasonable delay and lack of diligence in failing to institute an action prejudiced Defendant. 26. The doctrine of Laches bars any portion of Plaintiff's complaint sounding in Equity. WHEREFORE, for all the above reasons, defendant requests this Honorable Court enter judgment in his favor and against the plaintiff Dickinson College. Respectfully Submitted TURO LAW OFFICES Date Daniel D. Worley, Es~luire 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorney for Defendant VERIFICATION I, Daniel D. Worley, Esquire, attorney for the Defendant herein, have sufficient knowledge of the facts contained in this Answer and New Matter and verify that the statements made in the foregoing Answer and New Matter are true and correct to the best of my knowledge, based upon information received from the Defendant. understand that false statements herein made are subject to the penalties of 18 Pa C.S.A. {}4904 relating to unsworn falsification to authorities. A verification executed by the Defendant will be filed of record as soon as it becomes available. Date Daniel D. Worley, Esquire CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the Answer and New Matter upon David R. Galloway, Esquire, by depositing same in the United States Mail class, postage pre-paid on the 9---~*~ day of /4~,.~c,'+' , 2003, from first Carlisle, Pennsylvania, addressed as follows: David R. Galloway Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 TURO LAW OFFICES Daniel D. Worley, Es~luire 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorney for Daniel Dragon FIFILES~DATAFILE\Dickin$onColicg¢ 7619/DicklnsonColleg~Collections7619C~Documen~s/125 repl/m~i Crgate~ 9/12/03 10:09AM Revised: 9/17/03 239PM 7619cl28 DICKINSON COLLEGE, Plaintiff DANIEL M. DRAGON, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-3565 CIVIL ACTION-LAW JURY TRIAL, OF TWELVE DEMANDED PLAINTIFF'S REPLY TO DEFENDANT'S ANSWER WITH NEW MATTER TO: DANIEL M. DRAGON, Defendant, and his attorney, DANIEL D. WORLEY, ESQUIRE The averments of Defendant Dragon's Answer with New Matter are hereby incorporated by reference. 17. This allegation is a conclusion of law to which no responsive pleading is required. If a responsive pleading is required, it is admitted that Plaintiffs Complaint does not show an express contract between Plaintiff and Defendant. 18. Admitted. 19-20. This allegation is a conclusion of law to which no responsive pleading is required. Ifa responsive pleading is required, it is denied that Plaintiffs claim is barred by Pennsylvania's Statute of Limitations. Because Defendant resides outside this Commonwealth and because Plaintiff used due diligence in its attempts to locate Defendant, Pennsylwmia's statute of limitations does not bar this action. 21. Admitted. It is admitted Plaintiff did not file this Complaint until after five (5) years from the last charge on the student account. 22-25. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to Defendant's allegation. As a result, all allegations in this paragraph are denied. 26. This allegation is a conclusion of law to which no responsive pleading is required. Ifa responsive pleading is required, it is denied the doctrine of laches bars any portion of Plaintiff's Complaint. MARTSON DEARD~ WILLIAMS & OTTO David R. Galloway ' Attorney I.D. No. 87326 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Date: September 17, 2003 Attorneys for Plaintiff CERTIFICATE OF SERVICE I, Marti/ben, an authorized agent ofMartson DeardorffWilliams & Otto, hereby certify that a copy of the foregoing Plaintiff's Reply to Defendant's Answer With New Matter was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Daniel D. Wofley, Esquire: TURO LAW OFFICES 28 South Pitt Street Carlisle, PA 17013 Attorney for Defendant MARTSON DEAd~DORFF WILLIAMS & OTTO Marti Iben Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: September 17, 2003 DICKINSON COLLEGE, Plaintiff DANIEL M. DRAGON, IN THE COURT OF CO~'~ON PLEAS OF CL~B£RLAND COUNTY, PENNSYLVANIA' NO. 03-3565 CIVIL ACTION 2003 Defendant : RULE 1312-1, The Petition for Appointment of Arbitrators shall be substantially in the following form: PETITION FOR APPOINTMENT OF ARBITRATORS TO TEE HONORABLE. THE JUDGES OF SAID COURT: Davis R. Galloway , counsel for the plaintiff/defendant in the above action (or actions), respectfully represents that: 1. The above-captioned action (or actions) is (are) at issue. 2. The claim of the plaintiff in the actio~ is $17,472.30 plus fees~ costs The counterclaim of the defendant in the, action is The following attorneys are interested in the case(s) as counsel or are other- wise disqualified to sit as arbitrators: Rom Turo~ Esquire~ TURO LAW OFFICES and all associates thereof, and, David R. Galloway, Esquire, MDW&o, and all as::ociates thereof. WMEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted· .Respectfully_~ubm~e.d, NOW, Esq., and ~. ~ ,Esq., are appointed arbitrators in tha above-captioned action (or actions) as prayed for. By the ~ DICKINSON COLLEGE DANIEL M. DRAGON iN RE: ARBITRATION PANEL : IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANia : CIVIL ACTION - LAW · NO. 03-3565 CIVIL TERM ORDER OF COURT AND NOW, March 8, 2004, the Court having been informed that David Breschi, Esquire, is unavailable for the above-captioned arbitration hearing, Michael Scherer, Esquire, is appointed in his stead. By the Court, Geol~P.J. V~Nilliam Addams, Esquire Chairman ~,'~4ichael Scherer, Esquire Court Administrator OATH Ia l~he Court of Co.men Pleas of Cu~erland County, Pennsylvania O.j. ., 33-60'-- We do sol-.-~ly swear (or affirm) that we will support, obey and defend The Constitution of ~he United States and The ConsTitution of This Co.on- wealth amd ~hat we will discharge the dut ie~~t~,h f.~ideli~y. We, the undersigned arbi:rators, having been duly appointed and sworn (or affirmed), make ~he folio%ring award: (Note: If d~ges for dele? are awarded, They shall be separately stated.) applicable.) Date of Hearing: Date of Award: . Arbitrator, dissents. (Insert name if Chairman Now, the /~ day of ~ award was entered upon Thedock~ and parties or ~hetr attorneys. Arbitrators' compe~atio~ =o be paid upon appeal: , ~9~m~ at ~2~, ~.~L, the above notice Thereof given by mail to ~he ~re%nonotary _~ · DICKINSON COLLEGE, Plaintiff Ve DANIEL M. DRAGON¥ Defendant ~o. 03 - 3565 CIVIL NOTICE OF AFI:~kL ?ROM A~¢ARD OF BOARD OF TO T>~ PROTHONOTARY: ~,ot~.~ is given t_hat Defendant- Daniel M. Dragon the award of the board of arbitrators entered ~_n this case May 18, 2004. appeals from on jury trial is dem~mded /~, . (ChesJ~ box if a deeded. Other~-ise Jury trial is waltzed.) hereby certify tb~at j~y t ~ za= ~_s (!) the compensation of the arbitrators b~s been paid~ or (2) application ~has been made for permission to proceed ir_ forma pauperis. (Strike out the ~app!icable c~use.) [~e~fi. ,Gault, Esq. ~p~el~ or ~tto~ey for APPellant N~: ~ de~d for jury trial on appe~ from co~so~ ~bitration y ~le _00~.! (b). (b) ~[o affidavit or '~erification is r~ired. C) c_ : C PRAECIPE FOR LISTING CASE FOR TRIAL (Must 13e 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. ( 7. ) for trial without a jun/. CAPTION OF CASE (entire caption must be stated in full) DICKINSON COLLEGE VS. DA~NIEL M. DRAGON (Plaintiffl (DefenOant) VS. (check one) (x) Assumpsit ( ) Trespass ( ) Trespass (Motor Vehicle) ( ) (other) The trial list will be called on ~0041 and October 25, 2004 Trials commence on October 6, 2004 Pretrials ,/,,iii be held on (Briefs are due 5 days Defore pretnals.) (The party listing this case for trial sl~all prowde forthwith a copy of the praectpe to all counsel. pursuant '[o local Rule 214-1.) No. 03-3565 Civil Action-Law 19 __. indicate tJ~e attorney who will tn/case for tr~e party who files this praempe: David R. Galloway, Esquire James G. Gault, Esquire Indicate trial counsel for other Dames ~f known: Signed: ~ '~ ~' re Pr,n, Name' ~avid R'~Gall°~aY' Esqui DICKINSON COLLEGE, PLAINTIFF : IN THE cOUP, T OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA DANIEL M. DRAGON, DEFENDANT : 03-3565 CIVIL TERM ORDER OF COURT _day of August, 2004, a non-jury trial shall AND NOW, this _ ~ commence at 1:30 p.m., Monday, October 4, 2004, in ,Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylva~,ia. By th~,~;ourt, ~/'~ ~_avid R. Galloway, Esquire For Plaintiff ~FF~mes G. Gault, Esquire r Defendant Court Administrator :sal DICKINSON COLLEGE, PLAINTIFF · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA DANIEL M. DRAGON, DEFENDANT · 03-3565 CIVIL TERM IN RE: OPINION AND VERDICT VERDICT AND NOW, this "'X~%'-- day of October, 2004, I find in favor of plaintiff and against defendant and award plaintiff damages in the amount of $~17,472.30, with legal interest from August14,1998. ~avid R. Galloway, Esquire For Plaintiff i/Fames Gault, Esquire For Defendant Edgar ~'~. Ba~'lby~ O. DICKINSON COLLEGE, PLAINTIFF : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA DANIEL M. DRAGON, DEFENDANT : 03-3565 CIVIL TERM IN RE: OPINION AND VERDICT Bayley, J., October 21, 2004:-- On July 25, 2003, plaintiff, Dickinson College, instituted this suit by complaint against defendant, Daniel M. Dragon. Plaintiff sought $17,472.30, on counts for breach of contract and quantum meruit, for unpaid tuition and services it provided to defendant when he was an undergraduate at its campus in Carlisle, Cumberland County. A bench trial was conducted on October 4, 2004. Defendant does not contest the amount owed plaintiff. His sole defense is the statute of limitations. Defendant applied for admission to Dickinson College for the fall semester of 1994. His application set forth that he lived with his mother, Patrice Grosskopf, at 150 Union Street, Mineola, New York. Defendant was admitted to Dickinson. On January 16, 1996, Grosskopf notified the college that her new address was P.O. Box 1651,415 First Street, Mineola, New York. After the fall semester of 1996, defendant withdrew from the college for academic deficiencies. On December 17, 1997, by letter, with an address of P.O. Box 1651, Mineola, New York, defendant requested readmission to the college. He was readmitted and completed the spring semester of 1998. He again withdrew for academic deficiencies. He 03-3565 CIVIL TERM went home to live at 150 Union Street, Mineola. He has not returned to Pennsylvania. On May 28, 1998, plaintiff notified Grosskopf of the balance due on her son's account. The notice was sent to 415 First Street, P.O. Box 1651, Mineola, New York. On June 1, 1998, plaintiff notified defendant by letter sent to 415 First Street, Mineola, New York, that he was "dismissed from the College without the privilege of readmission at any time." On December 18, 1998, plaintiff notified defendant of the amount due on his account by a letter sent to him at 415 First Street, P.O. Box 1651, Mineola, New York. On February 4, 1999, Dickinson's counsel in Pennsylvania sent defendant a notice by certified mail at 150 Union Street, Mineola, New York. It set forth that if defendant did not m-'~ke the payment of $17,472.30 within thirty days, legal proceedings would be instituted against him. The letter was received on February 8, 1999, at 150 Union Street, Mineola. The signature on the receipt is not identifiable. Dickinson obtained counsel in New York in May, 19!)9. Counsel contacted defendant's mother at 150 Union Street, Mineola, New York. She advised counsel that her son had moved out of the premises approximately one year before. Counsel was unable to confirm defendant's address, so the file was closed. Plaintiff requested counsel to reopen the file in May, 2000. Counsel conducted a skip trace which came up with two possible addresses for defendant: 150 Union Street, Mineola and 41 Washington Avenue, Mineola. Counsel interviewed people at both residences who contended that defendant was not at either address. An interview with neighbors, a credit bureau report and a search of the Department of Motor Vehicles did not turn up a new address for defendant. On December 19, 2000, -2- 03-3565 CIVIL TERM counsel reported that defendant's mother and her neighbors at 150 Union Street, Mineola confirmed that defendant had removed himself from her residence and was residing somewhere in New York City. Another credit bureau search did not produce a new address. The New York Department of Motor Vehicles listed defendant's address as 150 Union Street, Mineola, with an expiration date on his license of March 17, 2001. On February 21,2001, counsel replicated the earlier efforts to find defendant. The only addresses that came up were the two in Mineola which could not be verified. In November, 2001, counsel again renewed efforts to locate defendant. Counsel sent letters to defend;ant at both Mineola addresses. Both were returned indicating defendant had moved and left no forwarding address. Counsel made another attempt in June, 2002 to obtain defendant's address, and was unsuccessful. In June, 2003, Dickinson, through new counsel in Pennsylvania, ordered a skip trace which indicated that defendant's address was 150 Union Street, Mineola, New York. A complaint was filed on July 25, 2003. On August 4, 2003, a process server served a copy of the complaint filed on July 25, 2003, on "Steve Proscott/Father" at 150 Union Street, Mineola, New York. A return of service pursuant to the Pennsylvaniia Long Arm Statute was filed with the Prothonotary on August 13, 2003. Steve Proscott is defendant's step-father who lived with defendant at 150 Union Street, Mineola, on August 13, 2003. On August 29, 2003, defendant, through counsel, filed an answer with new matter to plaintiff's complaint. Defendant, age 28, who is now an electrician, testified that he lives at 150 Union Street, Mineola, New York. It is the home of his mother and step-father. He has a driver's license with that address. Before he went to college he had lived 'there since he was five years old. -3- 03-3565 CIVIL TERM After completing the spring semester 1998, he returned to his mother's home at that address. He was there for about one year, which would be until about May, 1999. He then moved to 41 Washington Avenue, Mineola, for about six months. That was his deceased father's home which he repaired before it was sold. His parents were divorced and he had never lived in that home before. He then moved back to 150 Union Street, which would be about November, 1999. Later he moved for about a year to an apartment he leased in Williston Park, New York, which is next to Mineola. He does not remember the street address. During that period, for which he did not provide the dates, he had his mail forwarded to 150 Union Street, Mineola. He then moved back to 150 Union Street where he continues to live. He never lived at 415 First Street, Mineola. That was the home of a friend of his mother where she lived for a period of time when she separated from his step-father. DISCUSSION Payments on all past student accounts at Dickinson are due fourteen days before registration the next semester. The parties agree that after plaintiff withdrew following the spring semester of 1998, his account became due in full on August 14, 1998. They agree that the statute of limitations is four years. 42 Pa.C.S. § 5{525. Unless the period of limitation was extended, the last day for filing suit was August 13, 2002, almost a year before the complaint was filed on July 25, 2003. The Judicial Code at Section 5532 provides in pertinent part: (a) General rule.--If, when a cause of action accrues against a person, he is without this Commonwealth, the time within which the action or proceeding must be commenced shall be computed from the time he comes into or returns to this Commonwealth. If, after a cause of action has -4- 03-3565 CIVIL TERM accrued against a person, he departs from this Commonwealth and remains continuously absent therefrom for four months or more, or he resides within this Commonwealth under a false name which is unknown to the person entitled to commence the action or proceeding, the time of his absence or residence within this Commonwealth under such a false name is not a part of the time within which the action or proceeding must be comrnenced. (Emphasis added.) {b) Exception.--Subsection (1)does not apply in any of the following cases: (3) While jurisdiction over the person of the defendant can be obtained without personal delivery of process to him within this Commonwealth. (Emphasis added.) In Johnson v. Stuenzi, 696 A.2d 237 (Pa. Super. 1997), the Superior Court of Pennsylvania stated: The statute of limitations question revolves around the provisions regarding absentee defendants. 42 Pa.C.S.~,. § 5532(a), in relevant part, provides: "[Jif, after a cause of action has accrued against a person, he departs from this Commonwealth and remains continuously absent therefrom for four months or more, ... the time of his absence ... is not part of the time within which the action or proceeding must be commenced." Pursuant to this provision, if all alleged tortfeasor leaves the Commonwealth after the commission of the tort the period spent outside the Commonwealth is excluded from the limitations period. However, under subsection (b)(3), the time is not excluded "[w]hile jurisdiction over the person of the defendant can be obtained without personal delivery of process to him within this Commonwealth." Since, under the Pennsylvania Long-Arm Statute, jurisdiction over a non-resident defendant can be obtained through service by certified mail it is contended that any period of time which a plaintiff knows of, or should have known of, the non-resident defendant's mailing address should not be excluded from the limitations period. In light of the above provision it seems clear that the time during which appellants actually knew of appellee's whereabouts cannot be excluded, since service of process could have been easily effected. However, dealing with the interim period is rnore difficult and further complicated by the virtual nonexistence of case law dealing with this particular issue. Generally speaking, a litigant has an obligation to serve a defendant within the statutorily prescribed period. Further, it is entirely foreseeable that potential defendants may move after a cause of action accrues but before a -5- 03,-3565 CIVIL TERM plaintiff endeavors to serve them. Thus it is reasonable to impose a duty upon a litigant to locate and serve a defendant within the period of limitations. However, it is just as foreseeable that there will be times when a defendant will be very difficult to locate after a cause of action has accrued due to the defendant's moving from the Commonwealth and there being a lack of available information for finding his present location. Although it is reasonable to impose a duty upon a plaintiff to diligently attempt to locate a defendant, it would be unfair to punish a plaintiff who has failed to locate a defendant despite the exercise of due diligence by extinguishing his right to sue. Commonsense and general fairness suggests that the period of time that a defendant is outside the Commonwealth and has escaped location, or is not Iocatable, despite the exercise of due ,diligence should be excluded from the limitations period. (Emphasis added.) In a concurring opinion, Judge Ford EIliott stated: I join in the holding and rationale as set forth by the the [sic] majority. I write separately only to note that, while the majority does not set forth the respective burdens of proof applicable under its analysis, I assume the majority is adopting the "shifting burden" approach articulated by the federal district court in Bywaters v. Bywaters, 721 F.Supp. 84 (E.D.Pa. 1989), affirmed, 902 F.2d 155;9 (3d Cir. 1990). Under the Bywaters analysis, a plaintiff must establish, by a preponderance of the evidence, that the defendant is no longer a resident of Pennsylvania for purposes of § 5532(a). Once plaintiff meets its burden, the burden shifts to defendant, who usually bears the burden of proving an affirmative defense. The defendant must show it falls within the exception to the general 'tolling rule found in § 5532(a). Defendant does so by proving by a preponderance of the evidence that, through the exercise of due dilligence, plaintiff could have located defendant outside the Commonwealth and served defendant there by certified mail, as permitted by § 5532(b)(3). (Emphasis added.) In summary in the case sub judice: (1) After plaintiffs cause of action accrued on Aug~,st 14, 1998, Pennsylvania counsel sent defendant a demand for payment by certified mail on February 4, 1999, at 150 Union Street, Mineola, New York. The notice was received although the signature on the receipt is -6- 03-3565 CIVIL TERM not identifiable. Payment was not made. (2) In May, 1999, plaintiff retained counsel in New York who attempted to locate defendant. Defendant's mother, at 150 Union Street, Mineola, advised counsel that defendant had moved out of the premises approximately one year before. Thus, it was not reasonable to believe that defendant was still living at that address. Defendant testified that he lived at 150 Union Street for about a year after he left school at the end of the spring semester of 1998. Someone is not truthful. (3) In May, 2000, counsel interviewed people at 150 Union Street, Mineola, and 41 Washington Avenue, Mineola, who said that defendant did not live at that address. We cannot tell from defendant's testimony where he lived in May, 2000. According to him, if he was not living at 150 Union Street, Mineola, he was in Williston Park. (4) On December 19, 2000, defendant's mother and her neighbors at 150 Union Street, Mineola, confirmed that defendant had removed himself from her residence and was residing somewhere in New York City. Defendant testified that he never lived in New York City. We do not know if he was living at the time in Williston Park. Someone is not truthful. (5) On February 21, 2001, defendant was not Ioca~led at 150 Union Street, Mineola. We cannot tell from his testimony if this period fell within the year that he says he lived in Williston Park. (6) In November, 2001, the letters sent to defendant at 150 Union Street, Mineola, were returned indicating defendant had moved and left no forwarding address. According to defendant's testimony, the only other place he could have been living was Wiliiston Park. -7- 03-3565 CIVIL TERM (7) In June, 2002, efforts to locate defendant at 150 Union Street, Mineola, were unsuccessful. We cannot tell from his testimony if this period fell within the year that he says he lived in Williston Park. This is a month before the four year statute of limitations ended on August 13, 2002. (8) A complaint was filed on July 25, 2003. On August 4, 2003, defendant was served by a process server when his step-father, a resident at 150 Union Street, Mineola, accepted service of the complaint at the residence where defendant was then living. After plaintiff retained counsel in May, 1999, attempts were made to learn where defendant was then living. All of those efforts, which included skip traces, visits to 150 Union Street, Mineola, and 41 Washington Avenue, Mineola, indicated that defendant was not living at either address. No one ever divulged to plaintiff's representatives that he ever lived in Williston Park. Defendant testified he was living there for a year, at an address he does not remember, but he did not testify to the dates. In November 2001, letters sent to 150 Union Street, Mineola, were returned indicating that defendant had moved and left no forwarding address. If at the time he was living in Williston Park it is riidiculous to think that those persons living at 150 Union Street did not know where he was living. Plaintiff has proven by a preponderance of the evidence that defendant did not reside in Pennsylvania for purposes of 42 Pa.C.S. Section 5532(a). Defendant has not proven by a preponderance of the evidence that through the exercise of due diligence, plaintiff could have located him outside of the Commonwealth, and served him by certified mail before August 13, 2003, when his step-father accepted service of the complaint at 150 Union Street, Mineola, -8- 03-3565 CIVIL TERM New York, because defendant was then living there. Despite due diligence, and based on erroneous information provided by defendant's mother and others, plaintiff had no reasonable basis to believe that defendant was living at 150 Union Street, Mineola. Thus, there was no reasonable basis for instituting suit and sending him the complaint by certified mail at that address. We conclude that after notice was sent to defendant on February 4, 1999, that litigation would be instituted if he did not make payment of his debt to Dickinson within thirty days, he and others set out to hide his whereabouts. Accordingly, defendant does not fall within the general tolling rule in Section 5532(a) of the Judicial Code. Plaintiff's suit is not barred by the statute of limitations. Plaintiff has proven by a preponderance of the evidence that it is entitled to a verdict in the amount of $17,472.30, with legal interest from August 14, 1998. Accordingly, the following verdict is entered. VERDICT AND NOW, this 2,-~¢~'~ day of October, 2004, I find in favor of plaintiff and against defendant and award plaintiff damages in the amount of $17,472.30, with legal interest from August14,1998. E d g a r B .-"B~yl;~/~' J ." (k 03-3565 CIVIL TERM David R. Galloway, Esquire For Plaintiff James Gault, Esquire For Defendant :sal -10- F:~FILES\DATAFILE~DickinsonColIege7619\Collections\Current\ 128 pra2 Created' 12/30/04 3:04PM Revised' 12/30t04 3:50PM 7619C. 128 David R. Galloway, Esquire MARTSON DEARDORFF WILLIAMS & OTTO Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff DICKINSON COLLEGE, · Plaintiff · DANIEL M. DRAGON, · Defendant · IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-3565 CIVIL ACTION-LAW JURY TRIAL OF TWELVE DEMANDED PRAECIPE TO REDUCE VERDICT TO JUDGMENT AND COURT COSTS TO THEPROTHONOTARY: Please reduce the Verdict in the above matter to a Judgment in the amount of $17,472.30, with legal interest from August 14, 1998, and costs of suit. M~IAMS & OTTO BYDaQ;id ~way,~~ire \ I. D. Number 87326 ' Ten East High Street Carlisle, PA 17013 (717) 243-3341 Date: December 30, 2004 Attorneys for Plaintiff CERTIFICATE OF SERVICE I, Jean Taylor, an authorized agent ofMartson DeardorffWilliams & Otto, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: James Gault, Esquire TURO LAW OFFICES 28 South Pitt Street Carlisle, PA 17013 MARTSON DEARDORF~IAMS & OTTO Jean/a~l°r- '(~L~d Ten~ast High Street Carlisle, PA 17013 (717) 243-3341 Dated: December 30, 2004