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HomeMy WebLinkAbout03-3722DICKINSON COLLEGE, Plaintiff ROBERT M. and BARBARA W. WERNER and HENRY LEWANDOWSKI, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION-LAW JURY TRIAL 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 LIAMS & OTTO I.D. No. 87326 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff Date: August 1, 2003 DICKINSON COLLEGE, Plaintiff ROBERT M. and BARBARA A. WERNER and HENRY LEWANDOWSKI, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNT , P rNSVLVAN A NO. 03- 37.~1 ~-~-~'Y~-~ CIVIL ACTION-LAW JURY TRIAL OF TWELVE DEMANDED COMPLAINT AND NOW, comes Plaintiff Dickinson College by and through its attomeys, MARTSON DEARDORFF WILLIAMS & OTTO, and hereby avers as follows: 1. Plaintiff Dickinson College, (hereinafter "Dickinson"), is a Pennsylvania educational institution and nonprofit corporation with its principle place of business at West Street, Post Office Box 1773, Carlisle, Cumberland County, Pennsylvania 17013. 2. Defendants, Robert M. and Barbara A. W .e[ner, (hereinafter "Parents"), are adult individuals residing as husband and wife with a last known address of 146 Dunfor Street, Philadelphia, Philadelphia County, Pennsylvania 19148-4008. 3. Defendant, Henry Lewandowski, (hereinafter "Student"), is an adult individual with a last known address of 335 Wolf Street, Philadelphia, Philadelphia County, Pennsylvania 19148. 4. On or about February 16, 1993, Parents and Student entered into a PromissoryNote (Note # 1 ) with Dickinson for the financing of $2,000.00, plus interest and costs by Parents on their own behalf, for educational services and benefits to Student at Dickinson. A copy of Note #1 is attached hereto as Exhibit "A." 5. On or about August 30, 1993, Parents and Student entered into a Promissory Note (Note #2) with Dickinson for the financing of $2,500.00, plus interest and costs by Parents on their own behalf, for educational services and benefits to Student at Dickinson. A copy of Note #2 is attached hereto as Exhibit "B." 6. 7. The total collective principle balance for Note #1 and Note #2 is $4,500.00. Note #1 and Note #2 grant Dickinson reasonable collection and attorneys' fees which Dickinson has calculated to be $675.00. 8. As of July 16, 2003, the principal and interest due and payable by Parents and Student to Dickinson was $3,865.10, plus interest accruing per day from July 16, 2003 in the amount of $.46. 9. The outstanding balance of $3,865.10 represents the total and actual overdue value of the financing provided to Parents and Student under Note # 1 and Note #2 for which Parents and Student have yet to pay. COUNT I BREACH OF CONTRACT 10. Dickinson hereby incorporates by reference the averments contained in Pamgraphs 1 through 9 of this Complaint. 11. Dickinson has fulfilled, performed and complied with all obligations and conditions of Note #1 and Note #2. 12. Parents and Student breached the expressed and implied obligations, conditions and terms of agreement of Note #1 and Note #2 by failing to pay the amounts financed therein. WHEREFORE, Dickinson demands judgment against Parents and Student in the amount of $3,865.10, plus interest in the amount of $.46 per day, collection and attorneys' fees in the amount of $675.00 and costs of suit. COUNT II IN QUANTUM MER UIT 13. Dickinson hereby incorporates by reference the averments contained in Paragraphs 1 through 12 of this Complaint. 14. Having requested Dickinson to loan money, and doing so to the benefit of Student, Student became liable to Dickinson for said money. 15. Student has been unjustly enriched by accepting said money without paying Dickinson reasonable compensation therefor. 16. The total amount by which Student has become enriched is $3,865.10, plus interest in the amount of $.46 per day from July 16, 2003. WHEREFORE, Dickinson demands judgment against Student in the amount of $3,865.10 plus interest in the mount of $.46 per day from July 16, 2003, collection and attorneys' fees in the amount of $675.00 and costs of suit. Date: August 1, 2003 MARTSON DEARDORFF WILLIAMS & OTTO I.D. No. 87326 Ten East High Street Carlisle, PA 17013-3093 ~ (717) 243-3341 Attorneys for Plaintiff DICKINEON COLLEGE FLEXIBLE FINANCING SYSTEM - PLAN B. EDUCATIONAL GOODS AND SERVICES RETAIL INSTALLMENT CONTP. ACT Date February 16, 1993 Seller: Buyer(s): Dickinson College, Carlisle, Pennsylvania 17013-2896 Robert M. a.d Barbara A. Werner 316 Oaly Street Philadelphia, PA 19148 If there is more than one Buyer, each of you will be obligated, jointly and severally, for all sums due and for the performance of all agreements as provided in this Contract. Under the terms of this Educational Goods and Services Retail Installment Contract, you have agreed to pay the expenses incurred for aoods and s~rv~c~s to be provided and rendered, as the case may be, to Fe.ry Lewandowskl (hereinafter "Student") during hie/her enrollment at Dickinson College during the lqq?-g~ academic year, including tuition, room and board, books and supplies as herein stated (hereinafter the "Goods and Services"). The Goods and Services shall include only tuition, room and board. II. TERMS OF PAYMENT AND PAYMENT SCHEDULE Disclosures Required by Federal Law ANNUAL PERCENTAGE RATE:* Cost of credit as yearly rate FINANCE C~GE: Dollar amount credit will cost Buyer AMOUNT FINANCED: Amount of credit provided by Dickinson College 7.50 ~ $ 1,071.00 $ 2,000.00 TOTAL OF PAYMENTS: Amount paid by Buyer as total of all scheduled payments $ 3,071.00 TOTAL S~J~E PRICE: Total cost of purchase on credit, in- cluding down pa~ent of $ 19,360.00 $ 21,360.00 Rev 2/92 EXHIBIT "A" Buyer's payment schedule will be as follows: Number of Payments 148 Amount of Payments $20.75 When Payments are Due Monthly commencing 2/28/93 until $/28/05 *Variable Rate: The ANNUAL PERCENTAGE RATE disclosed above is a variable rate and may change. The ANNUAL PERCENTAGE RATE may increase during the term of this transaction if the prime rate of interest announced in the Wall Street Journal as of the close of business on June 30 of each calendar year increases, and will be increased to the prime rate plus 1%. The ANNUAL PERCENTAGE RATE will not increase more than once a year, and the new interest rate will become effective on July 1 following the increase, if any, in the prime rate of interest. Any increase will be in the form of higher payment amounts. If your cost of the Goods and Services sold hereunder were $ 2.000.00 at 7.50 % per annum for 148 months, and the prime rate plus 1% were increased to R.~N %, Further, your regular monthly payments would increase to $ Zl ~6n-~ 1~% the ANNUAL PERCENTAGE RATE will not increase to more or such other rate as may be permitted under the Pennsylvania Goods and Services Installment Sales Act. Late Charge: If a payment is more than 15 days late, a sum equivalent to 5% of the late payment (but no more than $2.50 and not less than $1.00) may be charged. Prepayment: Buyer may prepay the unpaid balance of the Amount Financed and any FINANCE CHARGE due through the date of early payment, in full or in part, without penalty. SEE SECTION VI OF THE CONTRACT BELOW FOR ANY ADDITIONAL INFORMATION ABOUT NON-PAYMENT, DEFAULT AND REQUIRED REPAYMENT BEFORE THE SCHEDULED DATE FOR REPAYMENT OF THE AMOUNT FINANCED. III. ITEMIZATION OF AMOUNT FINANCED 1. cash price of Goods and Services: $ 21,360.00 2. Total down payment: 19,360.00 3. Unpaid balance of cash price (1 - 2): 2.000°00 4. Amount paid to others on Buyer's behalf: 0 5. Amount Financed (3 + 4): $ 2,000.00 IV. ~REDIT. INSURANCE Credit life insurance for the term of this Contract is not required. V. NO WARRANTIES THERE ARE NO WARRANTIES, EITHER EXPRESSED OR IMPLIED, GIVEN BY SELLER IN CONNECTION WITH SALE OF THE GOODS AND SERVICES COVERED BY THIS CONTRACT UNLESS BUYER HAS BEEN GIVEN A SEPARATE WRITTEN WARRANTY. VI. ADDITIONAL PROVISIONS Buyer agrees to pay Seller the Total Sale Price by making the total down payment and paying Seller the Total of Payments in the number and amount of monthly pay~ents shown in the Payment schedule. Payments are due on or before the same date of each month as the first payment date. Payments must be made to First Wachovia, Inc. at the following address: First Wachovia, Inc. P.O. Box 70095 Charlotte, NC 28272-0095 Buyer's legal rights include the right to pay all or part of the amounts due on this Contract in advance of their due dates, to obtain a refund or credit of unearned Finance Charge whenever the amount is paid in full in advance, and (with Seller's consent) to reinstate the contract if Buyer timely cures any default. 3o 5o Buyer shall be deemed to have committed an "Event of Default" of the Contract upon the occurrence of any of the following: (a) failure to make any payment on or before the date it is due, (b) failure to make a payment on any other Contract outstanding with Seller, (c) failure to perform any other provision of the Contract, (d) providing Seller with false information or signatures, (e) death, incompetence, or conviction of any Buyer of crime involving fraud or dishonesty, (f) insolvency or bankruptcy of any Buyer. Upon or after the occurrence of any Event of Default, Seller will provide Buyer with notice, by certified mail as required by law, addressed to Suyer's last known address as shown on Seller's records, advising Buyer of the default and of Buyer's right to cure the default. The notice will provide the time, amount and performance necessary to cure the default. If Buyer does not cure the default ae provided in the notice, Seller's rights shall include the right to declare all sums due on the Contract to be immediately due and payable. The Buyer agrees to pay all attorney's fees and other reasonable collection costs and charges necessary for the collection of any amount not paid when due. Waiver by Seller of any Event of Default shall not be binding upon Seller if Seller should thereafter choose to exercise that or any other right or a similar Event of Default occurs later. Ail Seller's rights and remedies shall be cumulative. Seller's exercise of one or more rights shall not cause Seller to lose any other rights. This Contract is freely assignable by Seller. Buyer agrees that upon receiving notice of the assignment Suyer shall be obligated to the Assignee of this Contract, which Assignee shall have all of Seller's right and remedies. If any part of this Contract is held to be illegal, void or unenforceable, that provision shall be deemed not to have been a part of this Contract, which shall otherwise remain fully effective. APPLICABLE LAW: This Agreement, whenever called upon to be construed, shall be governed by the domestic internal laws of the Commonwealth of Pennsylvania except to the extent supplemented, superseded or preempted by federal law. CONSENT TO JURISDICTION, VENUE AND SERVICE: The parties to this Agreement 6onsent and agree that all legal proceedings relating to the subject matter~ hereof shall be maintained in the Court of Common Pleas of Cumberland County, Pennsylvania, or, if applicable, the United States District Court of the Middle District of Pennsylvania, and all parties hereto consent and agree that jurisdiction and venue for such proceedings shall lie exclusively within said court. Service of process in any such proceeding may be made by certified mail, return receipt requested, directed to the respective party at the address set forth above. 10. This Contract shall be binding upon the parties hereto, their heirs, successors, assigns and legal representatives. 11. TI~4E IS OF THE ESSENCE OF THIS CONTRACT. NOTICE: ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER. NOTICE TO BUYER: (1) DO NOT SIGN THIS AGREEMENT BEFORE YOU READ IT OR IF IT CONTAINS ANY BLANK SPACE. (2) YOU ARE ENTITLED TO A COMPLETELY FILLED-IN COPY OF THIS AGREEMENT. (3) UNDER THE LAW, YOU HAVE THE RIGHT TO PAY OFF IN ADVANCE THE FULL AMOUNT DUE AND UNDER CERTAIN CONDITIONS TO OBTAIN A PARTIAL REFUND OF THE FINANCE CHARGE. BUYER(S) ACKNOWLEDGE(S) RECEIVING A COMPLETED COPY OF THIS CONTHACT AND iNTEND(S} TO BE LEGALLY BOUND.~u~ ITS TERMS. I AGREE TO REPAY ALL AMOUNTS DUE ON THIS LOAN IF THE BORROWER(S)/BUYER(S) FAILS TO DO SO IN ACCORDANCE WITH THE TERMS OF THE NOTE: STUDENT COSIGNER U T OF A STUDENT'S RECORD WILL NOT BE IF LOAN PAYMENTS TO THE co'r.?.~*GE ~ IN ~S OR DEFAULT. DATE: DICKINSON COLLEGE 4 DICKINSON COLLEGE FLEXIBLE FINANCING SYSTEM - PLAN B. EDUCATIONAL GOODS AND SERVICES RETAIL INSTALLMENT CONTRACT Date August 30, 1993 Seller: Buyer(s): Dickinson College, Carlisle, Pennsylvania 17013-2896 Robert M. Werner 316 Dal¥ Street Philadelphia, PA 19148 If there is more than one Buyer, each of you will be obligated, jointly and severally, for all sums due and for the performance of all agreements as provided in this Contract. Under the terms of this Educational Goods and Services Retail Installment Contract, you have agreed to pay the expenses incurred for goods and services to be provided and rendered, as the case may be, to Henry tewanqowski (hereinafter "Student") during his/her enrollment at Dickinson College during the 1993-94 academic year, including tuition, room and board, books and supplies as herein staged (hereinafter the "Goods and Services"). The Goods and Services shall include only tuition, room and board. TERMS OF PAYMENT AND PAYMENT SCHEDULE Disclosures Required by Federal Law ANNUAL PERCENTAGE RATE:* Cost of credit as yearly rate FINANCE CHARGE: Dollar amount credit will cost Buyer AMOUNT FINANCED: Amount of credit provided by Dickinson College 7.00 ~ $ 1,165.20 $2,500.00 TOTAL OF PAYMENTS: Amount paid by Buyer as total of all scheduled payments $ 3,665.20 TOTAL SALE PRICE: Total cost of purchase on credit, in- cluding down payment of $ 20,090.00 $ 22.590.00 Rev 2/92 EXHIBIT "B" Buyer's payment schedule will be as follows: Number of Payments 140 Amount of Payments $26.18 When Payments are Due Monthly commencing 9/28/93 until 5/28/05 *Variable Rate: The ANNUAL PERCENTAGE RATE disclosed above is a variable rate and may change. The ANNUAL PERCENTAGE RATE may increase during the term of this transaction if the prime rate of interest announced in the Wall Street Journal as of the close of business on June 30 of each calendar year increases, and will be increased to the prime rate plus 1%. The ANNUAL PERCENTAGE RATE will not increase more than once a year, and the new interest rate will become effective on July 1 following the increase, if any, in the prime rate of interest. Any increase will be in the form of higher payment amounts. If your cost of the Goods and Services sold hereunder were $ ?,5~0.00 at 7.0~ % per annum for 140 months, and the prime rate plus 1% were increased to ~.00 %, your regular monthly payments would increase to $ 27.52 Further, the ANNUAL PERCENTAGE RATE will not increase to more than 1~% or such other rate as may be permitted under the Pennsylvania Goods and Services Installment Sales Act. Late Charge= If a payment is more than 15 days late, a sum equivalent to 5% of the late payment (but no more than $2.50 and not less than $1.00) may be charged. Prepayment: Buyer may prepay the unpaid balance of the Amount Financed and any FINANCE CHARGE due through the date of early payment, in full or in part, without penalty. SEE SECTION VI OF THE CONTRACT BELOW FOR ANY ADDITIONAL INFORMATION ABOUT NON-PAYMENT, DEFAULT AND REQUIRED REPAYMENT BEFORE THE SCHEDULED DATE FOR REPAYMENT OF THE AMOUNT FINANCED. III. ITEMIZATION OF AMOUNT FINANCED 1. Cash price of Goods and Services: $ 22,590.00 2. Total down payment: 20,090.00 3. Unpaid balance of cash price (1 - 2): 2,500.00 4. A~ount paid to others on Buyer's behalf: 0 5. A~ount Financed (3 + 4): $ 2,500.00 10. 11. CONSENT TO JURISDICTION, VENUE AND SERVICE:. The parties to this Agreement consent and agree that all legal proceedings relating to the subject matter hereof shall be maintained in the Court of common Pleas of Cumberland County, Pennsylvania, or, if applicable, the United States District Court of the Middle District of Pennsylvania, and all parties hereto consent and agree that juriediction and venue for such proceedings shall lie exclusively within said court. Service of process in any such proceeding may be made by certified mail, return receipt requested, directed to the respective party at the address set forth above. This Contract shall be binding upon the parties hereto, their heirs, successors, assigns and legal representatives. TIME IS OF THE ESSENCE OF THIS CONTRACT. NOTICE: ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES ~ICH TEE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED pURSUANT ~/ERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER. NOTICE TO BUYER: (1) DO NOT SIGN THIS AGREEMENT BEFORE YOU READ IT OR IF IT CONTAINS ANY BLANK SPACE. (2) YOU ARE ENTITLED TO A COMPLETELY FILLED-IN COPY OF THIS AGREEMENT. (3) UNDER THE LAW, YOU HAVE THE RIGHT TO PAY OFF IN ADVANCE THE FULL AMOUNT DUE AND UNDER CERTAIN CONDITIONS TO OBTAIN A PARTIAL REFUND OF THE FINANCE C~L%RGE. BUYER(S) ACKNOWLEDGE (S) RECEIVING A COMPLETED COPY OF THIS CONTRACT AND INTEND (S) BUYER(S): I AGREE TO REPAY ALL AMOUNTS DUE ON THIS LOAM IF THE BOREOWER(S)/BUYER(S) FAILS TO DO SO IN ACCORDANCE WITH TEE TERMS OF THE NOTE: T~ANSCRIPT OF A S~/DENT *S RECORD WILL NOT BE RELEASED IF LOAN PAYMENTS TO THE COT.r.~GE ARE IN ARREANS OR DEFAULT. DATE: DICKINSON COLLEGE BY ~~ 4 VERIFICATION I, THOMAS MEYER, Assistant Treasurer of Dickinson College, acknowledge that I have the authority to execute this Verification on behalf of Dickinson College and certify that the foregoing Complaint is based upon information which has been gathered by my counsel in the preparation of this lawsuit. The language of this Complaint is that of counsel and not my own. I have read the document and to the extent that this Complaint is based upon information which I have given to my counsel, it is true and correct and to the best of my knowledge, information and belie£ To the extent that the content of this Complaint is that of counsel, I have relied upon com~sel in making this Verification. This statement and Verification are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unswom falsification to authorities, which provides that ifI knowingly make false averments, I may be subject to criminal penalties. Dickinson College Thom~ ~ Assistant Treasurer i~'lJickinson College Dated: .IECEIVEt JUL ;~ 1 200~, DICKINSON COLLEGE, : Plaintiff : V. : ROBERT M. and BARBARA W. : WERNER and HENRY LEWANDOWSKI,: Defendants : 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-3722 CiVIL ACTION-LAW JURY TRIAL OF TWELVE DEMANDED PRAECIPE TO DISCONTINUE Plaintiff requests the above-captioned matter be discontinued without prejudice. MARTSON DEARI)~RI~F WILLIAMS & OTTO David R. Gallo'ff~a~ EsquSre I. D. Number 8/.326. Ten East High Street Carlisle, PA 17013 (717) 243-3341 Date: October 9, 2003 Attorneys for Plaintiff CERTIFICATE OF SERVICE I, Nichole L. Myers, 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: Henry Lewandowski, Esquire 335 Wolf Street Philadelphia, PA 19148 MARTSON DEARDORFF WILLIAMS & OTTO By~/~{~ (7~ ~/~c~ Nichole L. Myers ~7 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: October 9, 2003