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HomeMy WebLinkAbout03-3681SAMUEL W. DH.I., JR., .Appellant V. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA evidentiary hearing on the matter. 17025. 2. ~PPEAI, OF I,I(~E,N.~E ~IIflPEN.~ION AND NOW comes the Appellant, Samuel W. Dill, Jr., by and through his attorneys, the Law Offices of Patrick F. Lauer, Jr., LLC, and respectfully avers the following: Appellant resides at 106 Center Street, Apt. 4, Enola, Cumberland County, Pennsylvania The Appellant received a notice dated July 2, 2003, that as a result of his conviction on April 22, 2003 of Pennsylvania Vehicle Code Section 3731, driving under the influence, his driving privileges were being suspended for a period of one year, effective suspension date June 10, 2003, at 12:01 a.m. A tree and correct copy of the Notice is attached as Exhibit "A." 3. The license suspension notice indicates that the Defendant must have the ignition interlock system installed on his car in order to have his driving privileges restored. 4. The Commonwealth' s actions are in violation of Defendant's State and Fedmal Constitutional Rights. 5. The Defendant never received notice fi.om the Sentencing Court that any ignition intextock system would be required to be installed on his car. See Exhibit "B." 6. The Commonwealth's actions are illegal. See .qe. hneid~r v P~nnDot WI-~.REFORE, your Appellant respectfully requests your Honorable Court to schedule an 2108 Market Street, Aztec Building Camp I-fill, Pennsylvania 170114706 ID#46430 Tel. (717) 763-1800 :NO.: C:~..~'~'~'/ COMMONWEALTH OF PENNSYLVANIA: DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, : Appeal of Operator's License Suspension Appellee : SAMUEL W. DILL, JR., Appellant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO.: COMMONWEALTH OF PENNSYLVANIA: DEPARTMENT OF TRANSPORTATION, : BUREAU OF DRIVER LICENSING, : Appeal of Operator's License Suspe~ion ppenee A'~ '~ 'ORNEY VERlleI~A TION I, Patrick K Lauer, Jr., Esquire, und~igned counsel for Appellant, Samuel W. Dill, Jr., hereby verifies and states that: 1. 2. 3. 4. Date' I am the attorney for Appellant, Samuel W. Dill, Jr.; I am authorized to make this verification on my client's behalf, The facts set forth in the foregoing Appeal are known to me and not necessarily to my client; The facts set forth in the foregoing Appeal are tree and correct to the best of my knowledge, information and belief} and I am aware that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unswom falsification to authorities. Respectfully submitted, Camp t'rall, Pennsylvania 17011-4706 II~ 46430 Tel. (717) 763-1800 SAMUEL W. DII.L, Appellant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO.: COMMONWEALTH OF PENNSYLVANIA: DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, : Appeal of Operator's License Suspension Appellee CERT~ ~'ICATE OF ,~ERVICE I hereby eertifij that I am this day s~ing a copy of the foregoing Appeal upon opposing counsel by depositing a copy of the same in the United States Mail. Camp Hill, Pennsylvania, through first class mail. certified, return receipt requested, postage paid and addressed as follows: Pennsylvania Depa~hnent of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104 Date' Respectfully submitted, Camp I-rdl, Pennsylvania 17011-4706 ID#46430 Tel. (717) 763-1800 COMHONNEALTN OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION ~ureau of Driver Licensing Mail Date: JULY 02, 2005 SAMIIEL W DILL JR 106 CENTER STREET APT 4 EN(.A PA 17025 .WID e D31766117031~99 001 PRO~ESSING DATE 06/25/2003 DRIVER LICENSE e 12550627 DATE OF BIRTH 04/28/1945 LICENSE IN BUREAU gear MR, DILL= this is an Offtclal Notlce of the Suspension of your Driving =rivilege as authorized by Section 15528 of the Pennsylvania Vehicle Code. As a result of your 0q/22/2005 conviction of violating Section 575I of the Vehicle Code DRIVING UNDER INFLUENCE an 08/04/2002: Your driving privilege is SUSPENDED fop a ~ertod of 1 YEAR(S) effective 06/10/2003 at 12:01 a.m. NARNING: If you are convicted of driving while your license is suspended/revoked the penalties will be a MINIMUM of 90 days imprisonment AND a 91,000 fine AND your driving privilege will be suspended/revoked for Before PennDOT can restore your driving privilege, you must follow the instructions in this letter for COMPLYING WITH THIS SUSPENSION, PAYING THE RESTORATION FEE and PROVIDING PROOF OF INSURANCE. You ehould foiloN ALL tnatPucttong vePY capefu11¥. Even if you have aepved a11 the time on the pptvi~ege until alI the pequiPements ape s~tiafted. 051766~1705~699 PRISON RELEASE REQUIREMENT (ACT151) The Court of CUMBERLAND CTY, Court Number 2590, Court Term 2002 has sentenced you to serve a prison term for this violation. Pursuant to Section [5~[(a.I) of the Vehicle Code, you will not receive credit for this suspension/revocation or any additional suspension/revocation until you complete your prison term. The Court must certify your completion to PennDOT. You may wish to contact your probation officer and/or the Court after your release to make sure that PennDOT is properly notified. PAYING THE RESTORATION FEE You must pay a restoration fee to PennDOT to be restored from a suspension/revocation of your driving privilege. To pay your restoration fee, complete the following steps: 1. Return the enclosed Application for Restoration. The amount due is listed on the application. 2. Write your driver's license number (listed on the first page) on the check or money order to ensure proper credit. $. Follow the payment and mailing instruct/ons on the back of the appl/cation. IGNITION INTERLOCK Before your dr/ving privilege can be restored you are requ/red by law to have all veh/cle(s) owned by you to be equ/pped w/th an Ign/t/on Interlock System. Th/s Ks a result of your conv/ct/on for Driv/ng Under the Influence. If you fail to comply w/th this req[;!rement; your drivin; privilcge will remain suspended for an additional Year. You will rece/ve more information regarding this requirement approx/mately $0 days before your eligibility date. PROVIDING PROOF OF INSURANCE W/thin the last $0 days of your suspension/revocation, we will send you a letter asking that you provide proof of insurance at that t/me. Th/s letter will list acceptable documents and what will be needed if you do not own a vehicle reg/stered in Pennsylvania. zm~ortant: Please make sure that PennDOT Ks not/f/ed /f you move from your current address. You may notify PennDOT of your address change by call/ng any of the phone numbers listed at the end of this letter. 031766117031699 APPEAL You have the right to appeal this action to the Court of Common Pleas (Civil Division) within 30 days of the mail date, JULY 02, 2005, of this lettero Z~ you ~tle an appeal tn the County Court, the court w111 glve you a time-stamped certt~ted copy of the appeal. In order for your appeal to be valid, you must send this time-stamped certified copy of the appeal by certified mail to: Pennsylvania Department of Transportation Office of Chief Counsel Th/rd Floor, Riverfront Office Center Harrisburg, PA 1710~-2516 Remember, this is an OFFZCZAL NOTZCE OF SUSPENSZON. Sincerely~ Rebecca L. Bickley, D/rector Bureau of Driver Licensing INFORNAT~ON 7:00 a.m. to 9=00 p.m. IN STATE 1-800-932-~600 TDD IN STATE OUT-OF-STATE 717-391-6190 TDD OUT-OF-STATE WEB SITE ADDRESS ww~.dot.state.pa.us 1-800-220-0676 717-391-6191 COMMONWEALTH V SAMUEL WESLEY DILL, JR. OTN: L129665-4 IN RE: 02-2590 CHARGE: : : AFFIANT: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CRIMINAL TERM DUI PTL. MICHAEL BINGHAM AND NOW, Samuel Wesley Dill, court and tendered a plea, and now appearing for together with private counsel, Patrick F. Lauer, the court being in receipt of a DUI report, SENTENCING, PAROLE & LICENSE SURRENDERED ORDER OF COURT this 10th day of June, 2003, the defendant, Jr., having previously appeared in open sentence Jr., Esquire, Sentence of costs of prosecution, assessment of $110.00, undergo imprisonment period of not less than forty-eight hours twenty-three months. The defendant and to be paroled at the the court is that the defendant pay the a fine of $300.00, together with an EMS and a CAT Fund surcharge of $50.00, and in the Cumberland County Prison for a nor more than to pay the costs expiration of his minimum term without of said incarceration further order of court on condition that he shall have behaved himself well at the Cumberland County Prison, and on further condition that be abide by the instructions and directions of his parole officer. Sentence herein imposed to commence on Friday, June 13, 2003, at 4:00 p.m. The defendant's driver's license is surrendered effective this date. COMMONWEALTH V. SAMUEL WESLEY DILL, JR. By the Court, Jonathan Birbeck, Esquire Assistant District Attorney Patrick F. Lauer, Jr., For the Defendant Probation Victim Services Sheriff CCP :bg Esquire Hess, J. JUL 31 003 SAMUEL W. DILL, JR., Appellant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO.: COMMONWEALTH OF PENNSYLVANIA: DEPARTMENT OF TRANSPORTATION, : BUREAU OF DRIVER LICENSING, ^ppence : Appeal of Operator's License Suspension ANDNOWthis ~l~j dayof ~~ 2003, upon ~miderafion of the ~ ~PE~ OF OP~TO~ LI~SE SUSP~SION, it is h~eby order~ t~t a h~g ~ be hdd r~g ~s m~g at on ~ ~ .~Y°f~ 2003 at ~; 30 ~p.m. ~ Co~oom No. ~' of ~e Cumb~d Coun~ Co~ou~, C~sle, Pennsylvania. A supersedeas is granted pursuant to Vehicle Code Section 1550(b)(1) until such time that this honorable court resolves this appeal. BY THE COURT: oa'v Dept. of Transportation, Office of Chief Counsel, Third Floor, River~ont Office Center, /4~ Harrisburg, PA 17104 ck F. Lauer, Jr., Esq., 2108 Market St., Camp I-rail, Pa 17011 FEDERMANAND PHELAN, LLP. by: Daniel G. Schmieg, Esquire Atty. I.D. No. 62205 One Penn Center Plaza, Suite 1400 Philadelphia, PA 19102-1799 (215) 563-7000 ATTORK'EY FOR PLAINTIFF The Bank Of New York, Acting Solely In Its Capacity As Trustee For EQCC Trust 2001-2 : CUMBERLAND COUNTY : COURT OF COMMON PLEAS vs. : CIVIL DIVISION Richard M. Wallace : NO. 03- 3861-CIVIL TERM PRAECIPE FOR RULE TO SHOW CAUSE TO THE PROTHONOTARY: Kindly enter a Rule upon Richard M. Wallace , Defendant(s) to show cause why the attached Order for Reassessment of Damages should not be entered. FEDERMAN AND PHELAN, L.L.P. Da~ie--1 G. ~Schmie _~Esqu~r~ Attorney for FEDERSgiN~/qD PHELAN, LLP. by: Daniel G. Schmieg, Esquire Atty. I.D. No. 62205 ATTORNEY FOR PLAINTIFF One Penn Center Plaza, Suite 1400 Philadelphia, PA 19102-1799 !215) 563-7000 The Bank Of New York, Acting Solely In Its Capacity As Trustee For EQCC Trust 2001-2 : CUMBERLAND COUNTY : COURT OF COMMON PLEAS vs. : CIVIL DIVISION Richard M. Wallace : NO. 03- 3861-CIVIL TERM AFFIDAVIT OF SERVICE Daniel G. Schmieg, Esquire, hereby certifies that a copy of Plaintiff's Petition for Reassessment of Damages have been sent to the individuals indicated below on January 15, 2004:. Richard M. Wa~.lace 112 North 34TH Street, Camphill, PA ].7011 DATE: January 15, 2004 FEDERMAN ~LND PHELAN, L.L.P. Daniel G. ~6~.g~squire Attorney for Plaintiff FEDERFLA-N~ND PHELAN, LLP. by: Daniel G. Schmieg, Esquire Atty. I.D. NOo 62205 One Penn Center Plaza, Suite 1400 Philadelphia, PA 19102-1799 (215) 563-7000 ATTORNEY FOR PLAINTIFF The Bank Of New York, Acting Solely In Its Capacity As Trustee For EQCC Trust 2001-2 : CUMBERLAND COUNTY : COURT OF COMMON PLEAS vs. Richard M. Wallace : CIVIL DIVISION : NO. 03- 3861-CIVIL TERM p~.~v~TIFF'S PETITION FOR REASSESSMENT OF DAMAGES by its Attorney, Federman and Phelan, LLP and Daniel moves the Court to direct the Prothonotary to reassess the 02-06651-JJT on December 6, 2002. dated March 30, 2003. 3. The mortgaged premises 2004. 4. are listed for Sheriff's Sale on March 6, Additional sums have been incurred or expended on Defendant(s)' behalf during the time the sale was postponed or stayed, and Defendant(s) have been given credit for any payments that have been made since the judgment, if any. As a result, the amount of damages should now read as follows: Plaintiff, Schmieg, EsquiIe, damages in this matter, and in support thereof avers the following: 1. This is an action in Mortgage Foreclosure in which Judgment was entered December 3, 2003 in the amount of 96,010.77. 2. A Sheriff's Sale of the mortgaged premises was postponed or stayed for the following reasons: The Defendant(s) filed a Chapter 13 Bankruptcy 1 The Bankruptcy was Relief by order of court Principal Balance Interest Amount April 5, 2002 through March 3, Late Charges Legal fees Cost of Suit and Title Sheriff's Sale Costs Inspections/Other Appraisal Fees Escrow Credit Deficit TOTAL 2004 80,463.57 14,899.08 459.36 3,400.00 2,467.50 0.00 0.00 0.00 0.00 4,749.48 $106,438.99 5. Under Office of the Recorder of Deeds in Book (#1617), entitled to judgment in the amount as set forth against the Defendant(s). the terms of the mortgage, which mortgage is recorded in the Page (#895), Plaintiff is in paragraph four herein WHEREFORE, Plaintiff respectfully requests this Honorable Court issue an Order to the Prothonotary to reassess the damages as set forth above. FEDERgL~/~ AArD PHELA/q, L.L.P. Daniel G. Schmieg, Esquire Attorney ~iff -2- FEDERMANAND PHELA/q, LLP. by: Daniel G. Schmieg, Esquire Atty. I.D. No. 62205 One Penn Center Plaza, Suite 1400 Philadelphia, PA 19102-1799 (215) 563-7000 ATTO~JEY FOR PLAINTIFF The Bank Of New York, Acting Solely In Its Capacity As Trustee For EQCC Trust 2001-2 : CUMBERLAND COUNTY : COURT OF COMMON PLEAS : CIVIL DIVISION : NO. 03- 3861-CIVIL TERM vs. Richard M. Wallace BRIEF OF LAW IN SUPPORT OF PLAINTIFF'S MOTION TO REASSESS iDAMAGES I. BACKGROUND OF CASE Plaintiff and Defendant(s) Agreement, wherein Defendant(s) entered into a P~omissory Note and Mortgage agreed to pay Plaintiff principal, interest, late charges, real estate taxes, hazard insurance premiums and mortgage insurance premiums as said monies became due. In turn, Plaintiff's Note was secured by a mortgage on the subject premises. The Mortgage Agreement indicates that in the event Defendant(s) defaults, Plaintiff may pay any necessary obligations in order to protect its collateral, the subject premises. In the case sub judicia, Defendant(s) failed to abide by the Mortgage Agreement by failing to tender numerous, promised monthly mortgage payments. Accordingly, after Plaintiff determined that Defendant(s) were not going to cure the default and bring the loan current, Plaintiff commenced a Mortgage Foreclosure Action. Judgment was subsequently entered by the Court, and the subject property is scheduled for Sheriff's Sale. Because of the excessive period of time between the initiation of the Mortgage Foreclosure Action, the entry of Judgment and the Sheriff's Sale date, damages as previously assessed by the Court are outdated and must be increased to include current interest, real estate taxes, insurance premiums, and other expenses which Plaintiff has been obligated to pay under the Mortgage Agreement in order to protect its interest. II. ARGENT FOR REASSESS~ENT OF DAMAGES The Pennsylvania Rules of civil Procedure are silent with respect to the issue of Reassessment of Damages; however, Rule 1037 provides, "the Prothonotary shall assess damages for the amount which Plaintiff is entitled if it is a sum certain or which can be made certain by computation..." In the instant case, the amount to which Plaintiff is entitled is readily calculated by review of the Mortgage Agreement, which is of record, together with the Complaint which specifically lists the items chargeable. Clearly, if Rule 1037 gives the Prothonotary the right to assess damages for the amount to which Plaintiff is entitled as set forth in the Complaint, the Court has similar power to reassess damages at a later date. In addition, Rule 1037(a) provides that the Ccurt, on motion of a party, may enter an appropriate judgment against a party upon default or admission. If the Court has the power to enter judgment, it certainly has the power to do a lesser act, to wit, reassess damages. It is settled law in Pennsylvania that the Court may exercise its equitable powers to control the enforcement of a judgment and to grant any relief until that judgment is satisfied. 20 P.L.E., Judgments Sec. 191. See also, Stephenson v. Butts, 187 Pa.Super 55, 59, 142 A.2d 319, 321 (1958); Chase Home Mortgage CorDoration of the Southwest v. Good, 537 A.2d 22, 24 (Pa. Super 1988). In Chase Home Mortqage, the Court stated that where a judgment has been assessed following defendant's failure to file a responsive pleading in a mortgage foreclosure action, a mortgagee "...could properly move the court to amend the judgment to add additional sums due by virtue if the mortgage's failure to comply with the terms of the mortgage agreement..." Id. at 24. Because a judgment in mortgage foreclosure is strictly in rem, it is critical that the judgment reflect those amounts expended by the Plaintiff in protecting the property. 'See Meco Reality Company v. Burns, 414 Pa. 495, 200 A.2d 335 (1971) . Plaintiff submits that if Plaintiff went to sale without reassessing damages, and if there was competitive bidding for the subject premises, Plaintiff would suffer irreparable harm in that it would not be able to recoup monies it paid to protect its interest. Conversely, will not be detrimental whatsoever to Defendant(s) liability. a reassessment of damages as it imputes no personal The Supreme Court of Pennsylvania found in the Landau v. Western Pa. Nat. Bank case that the debt owed on a mortgage changes and can be expected to change from day to day, because Western Pennsylvania must pay expenses for the property in order to protect its collateral. 445 Pa. 117, 282 A.2d 335 (1971). Because a mortgage lien is not extinguished until the debt is paid, Plaintiff must protect its collateral up until the date of sale. See Beckman ¥. Altoona Trust Co., 332 Pa. 545, 2 A.2d 826 (1939). Therefore, Plaintiff respectfully submits that if the enforcement of its rights are delayed by legal proceedings and enforcement of its judgment, and such delays require the mortgagee to expend additional sums pursuant to the Mortgage, then said expenses become part of the mortgagee's lien and should be included in said judgment. As the Court indicate~ in FNMA v. Jefferson, an unreported case a copy of which is attached hereto, since the charges enumerated in Plaintiff's Motion for Reassessment of Damages were incurred pursuant to the Mortgage Agreement, and the mortgage had not yet been paid, said charges should be included in Plaintiff's jud~nent amount. May Term, 1986, No. 2359 (CCP PHILA. 1986). III. CONCLUSION Plaintiff respectfully requests this Honorable Court grant its Petition to Reassess Damages. Plaintiff respectfully submits that it has acted in good faith in maintaining the property in accordance with the Mortgage, and in reliance on said instrument with the understanding that it would recover the monies it expended to protect its collateral. WHEREFORE, Plaintiff respectfully requests this Honorable Court to reassess the damages as set forth in the Petition to Reassess Damages. FEDERMAN AND PHELAN, L.L.P. Daniel G. Schm~ieg, Esquire Attorney for~Rla~iff AS ..,GC _A_ _ON ~-~'~on of 9L~in:£ff A~socia~io~'s PetiTion fur Re=onsiderauion ~iuac Pre Tune cf this Court's Order of Noveml~er 7. L985 and the Answer :h~,r~to of Defehda~s, Jose.uk Jefferscn and Rosie Jeff-zrsoa, ~-t is !) Said 9~_oa is GRANTED: ' and ~-lain~if~.'~ Motio~9_for R-ea~assme.".~.of Oamaqes .~ '-- Becau~(: P:.~ia=iff was requited to ac--ep~ cucrunt mortgage payments upo~ the f~ting of.Defendant' bank=up~ p~ti~l~n and in fact did so, l~ is necessary ~o reassess ~-he a~-cunt ~f ~ama~gs that ini~ia!!y ~ere assessed ~f~er judgment by default was'entered Ln this action. Because Defa,~nts have not refutad ~%e specific amcun~ claimed -i VERIFICATION Daniel G. Schmieg, Esquire, hereby states that he is. the attorney for Plaintiff in this action, that he is authorized to take this affidavit, and that the statements made in the foregoing Petition for Reassessment of Damages are true and correct to the best of his knowledge, information and belief. The undersigned understands that this statement herein is made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. DATE: January 15, 2004 FEDERMAN AND PHELAN, L.L.P. Daniel G. Schmie~', ~squi-re Attorney for Plaintiff