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HomeMy WebLinkAbout07-4768ANDREA MATTER-MARTIN and MATTHEW MARTIN, husband and wife Plaintiffs V. JACK G. FRY, JR and E.P. SERVICE CENTER, INC., Defendants :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA :DOCKET NO. ~ ~ "" y ? ~ ~c:-~ ~ i -~u~„ :CIVIL ACTION -LAW & EQUITY 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 Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 ANDREA MATTER-MARTIN and MATTHEW MARTIN, husband and wife Plaintiffs V. JACK G. FRY, JR and E.P. SERVICE CENTER, INC., Defendants :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA :DOCKET NO. :CIVIL ACTION -LAW & EQUITY AVISO LISTED HA SIDO DEMANDADO EN LA CORTE. Si usted desea defenderse de las quejas expuestas en las paginas siguientes, debe tomar accion dentro de veinte (20) dies a partir de la fecha en que recibio la demanda y el aviso. Usted debe presenter comparecencia escrita en persona o por abogado y presenter en la Corte por escrito sus defenses o sus objeciones a las demandas en su contra. Se le avisa que si no se defiende, el caso puede proceder sin usted y la Corte puede decidir en su contra sin mas aviso o notificacion por cualquier dinero reclamado en la demanda o por cualquier otra queja o compensacion reclamados por el Demandante. LISTED PUEDE PERDER DINERO, O PROPIEDADES U OTROS DERECHOS IMPORTANTES PARR LISTED. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI LISTED NO TIENE O NO CONOCE UN ABOGADO, VAYA O LLAME A LA OFICINA EN LA DIRECCION ESCRITA ABAJO PARA AVERIGUAR DONDE PUEDE OBTENER ASISTENCIA LEGAL. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 ANDREA MATTER-MARTIN and :IN THE COURT OF COMMON PLEAS OF MATTHEW MARTIN, :CUMBERLAND COUNTY, PENNSYLVANIA husband and wife Plaintiffs V• :DOCKET NO. 27 - y7 ~ ~ ~~,~ p T-~G-. JACK G. FRY, JR and E.P. SERVICE CENTER, INC., Defendants :CIVIL ACTION -LAW & EQUITY COMPLAINT AND NOW comes the Plaintiffs, Andrea Martin and Matthew Martin, husband and wife, by and through his attorneys, KOLLAS AND KENNEDY, and avers the following in support of this complaint: BACKGROUND 1. Plaintiffs, Andrea Matter-Martin and Matthew Martin, are married, adult individuals currently residing at 806 Belle Vista Drive, Enola, Cumberland County, Pennsylvania 17025. 2. Defendant, Jack G. Fry, Jr., is an adult individual residing at 2 Wayne Street, Summerdale, Cumberland County, Pennsylvania 17093. 3. Defendant, E.P. Service Center, Inc., is a Pennsylvania corporation with a principal place of business located at 311 First Street, Summerdale, Cumberland County, Pennsylvania 17093. TRANSACTIONS IN QUESTION 4. On or about January 8, 2004, Matthew Martin and his friend Jason Fry, son of Defendant Jack G. Fry, Jr., were traveling together in a red 1999 Volkswagen GTI, owned and operated by Mr. Martin, on business-related trip in the state of Maryland. On or about January, 8, 2004, the 1999 Volkswagen GTI, license plate number DGK-2973 (hereinafter referred to as the "car"), broke down. 6. On or about January 9, 2004, Mr. Martin contracted with McAlister Towing to have the car towed to the location of Defendant E.P. Service Center, Inc. 7. On or about January 9, 2004, the car was towed to the location of Defendant E.P. Service Center, Inc., and placed in a storage area thereon. It was Mr. Martin's understanding that the car was to be stored at no charge to him by either Defendant Jack G. Fry, Jr., or Defendant E.P. Service Center, Inc.; rather, storage was to be provided to him for free as a friend of Jason Fry and as an acquaintance of Defendant Jack G. Fry, Jr. 9. On or about September 30, 2006, Mr. Martin married Andrea Matter, who then took the name Andrea Matter-Martin, and is a named Plaintiff herein. 10. In the summer of 2007, the friendly relationships between the Martins and Jason and Jack G. Fry, Jr., deteriorated over a dispute regarding a 2007 Rider engine. 11. In early July of 2007, the Martins made verbal demand upon Defendant Fry to return the car as well as the engine. 12. In a letter dated July 19, 2007, counsel for the Martins made formal written demand for the return of the car and the 2007 Rider engine. A true and correct copy of said letter is attached hereto as Exhibit "A." 13. By July 30, 2007, the 2007 Rider engine had been returned, but the car was not. 14. In a letter dated July 30, 2007, counsel for the Martins attempted to resolve the matter amicably. A true and correct copy of said letter is attached hereto as Exhibit "B." 15. In a telephonic conversation Matthew Martin had with Defendant Fry on August 10, 2007, Defendant Fry informed Mr. Martin that the car would be released upon payment of $3,000.00 in storage fees. 16. Until that discussion, Defendant Fry had not issued a specific demand for payment; moreover, Mr. Martin had not, and has not, received any monthly invoices for storage, nor had, or has he, received any yearly invoices for storage. COUNT I: REPLEVIN 17. Plaintiff incorporates herein by reference the allegations set forth in paragraphs 1 through 17 as though the same were fully set forth herein at length. 18. Plaintiff Martins believe and therefore aver that the car is located on the property of Defendant E.P. Service Center, Inc., namely: 311 First Street, Summerdale, Cumberland County, Pennsylvania 17093. 19. Despite written demand, Defendants have failed and otherwise refused to relinquish possession of Plaintiff's car. 20. The fair market value of the car is $9,000.00. 21. Plaintiffs have been and will continue to be damaged by Defendants' detention of Plaintiffs' car in an amount which cannot be fully computed until the removal of Plaintiffs' property from Defendants' possession is complete, including, but not limited to amounts expended in recovering Plaintiffs' car, the cost of obtaining a bond for writ of seizure, and the cost of manpower and equipment to remove Plaintiffs' car from Defendants' possession. 22. Defendants' wrongful detention of Plaintiffs' car has been outrageous, willful, wanton, and/or in reckless disregard of Plaintiffs' rights, and Plaintiffs therefore seek recovery of punitive damages and attorneys' fees. WHEREFORE, Plaintiffs, Andrea Matter-Martin and Matthew Martin, respectfully request that this Honorable Court grant judgment in their favor for possession of the car, for punitive damages, for attorneys' fees, and for additional costs, interest and such other damages as this Honorable Court sees fit. COUNT II: UNJUST ENRICHMENT 23. Plaintiffs incorporate herein by reference the allegations set forth in paragraphs 1 through 22 as though the same were fully set forth herein at length. 24. Defendants knowingly and without Plaintiffs' consent have retained possession and dominion over Plaintiffs' car. 25. Despite repeated requests for return of said car by Plaintiffs, Defendants have refused or otherwise failed to return said car. 26. Defendants have been unjustly enriched by retaining said car at the expense of Plaintiffs. 27. As a direct and proximate result of the actions of Defendants as aforesaid, Plaintiffs have suffered and continue to suffer serious injury, including but not limited to, loss of the use of said car, and other such damages as may be discovered. WHEREFORE, Plaintiffs, Andrea Matter-Martin and Matthew Martin, respectfully request that this Honorable Court grant judgment in their favor for possession of the car, for punitive damages, for attorneys' fees, and for additional costs, interest and such other damages as this Honorable Court sees fit. COUNT III: CONVERSION 28. Plaintiffs incorporate herein by reference the allegations set forth in paragraphs 1 through 27 as though the same were fully set forth herein at length. 29. Defendants knowingly and without Plaintiffs' consent have retained possession and dominion over Plaintiffs' car. 30. Despite repeated requests for return of said car by Plaintiffs, Defendants have refused or otherwise failed to return said car. 31. Defendants' retention of said car constitutes serious interference with Plaintiffs' rights in said car. 32. As a direct and proximate result of the actions of Defendants as aforesaid, Plaintiffs have suffered and continue to suffer serious injury, including but not limited to, loss of the use of said car, and other such damages as may be discovered. WHEREFORE, Plaintiffs, Andrea Matter-Martin and Matthew Martin, respectfully request that this Honorable Court grant judgment in their favor for possession of the car, for punitive damages, for attorneys' fees, and for additional costs, interest and such other damages as this Honorable Court sees fit. RESPECTFULLY SUBMITTED: ~ ~~%% James W. Kollas, Esquire Supreme Court I.D. No. 81959 KOLLAS AND KENNEDY 1104 Fernwood Avenue, Suite 104 Camp Hill, PA 17011 (717) 731-1600 ATTORNEY FOR PLAINTIFF Dated: ~` /s~ :~ LAW OFFICES OF KOLLAS AND KENNED~C' 1104 FERNWOOD AVENUE CAMP HILL, PENNSYLVANIA 17011 WILLIAM C. KOLLAS JAMES W. KOLLAS OF COUNSEL MARY KOLLAS KENNEDY July 19, 2007 TEL F4xON0 707)(731, 4601600 Mr. Jack G. Fry, Jr. Mr. Jason Fry E.P. Service Center, Inc. 311 First Street Summerdale, PA 17093 RE: 2007 Rider Engine; 1999 Volkswagen GTI Andrea and Matthew Martin Deaz Sirs: Please be advised that this law firm, Kollas and Kennedy, has been retained by Andrea and Matthew Martin in regard to a 2007 Rider Engine and a 1999 Volkswagen GTI. Any communications regazding these items should henceforth be directed to this office and not the Martins. The Martins demand immediate return of both the 2007 Rider Engine and the 1999 Volkswagen GTI. Furthermore, the Martins demand that you cease and desist from any and all use of either item. If you fail to return the items and/or continue to use the items, the Martins are prepared to file suits against you in the Court of Common Pleas of Cumberland County. Said suits may involve civil and criminal actions. You may contact this office to make arrangements for the return of these items. If you fail to respond to this letter within the next five (5) days, the Martins shall take all steps necessary to protect their rights to their property. Very truly yours, KOL/LAS & KENNEDY ~ames W. Kollas cc. Martin EXHI®IT 11 ~ ~~ LAW OFFICES OF KOLLASAND KENNEDY 1104 FERNWOOD AVENUE CAMP HILL, PENNSYLVANIA 17011 WILLIAM C. KOLLAS JAMES W. KOLLAS OF COUNSEL MARY KOLLAS KENNEDY Jul 30 2007 TELEPHONE NO. (717) 731-1600 y ~ FAX NO. (717) 731-1460 Mr. Jack G. Fry, Jr. Mr. Jason Fry E.P. Service Center, Inc. 311 First Street Summerdale, PA 17093 RE: 2007 Rider Engine; 1999 Volkswagen GTI Andrea and Matthew Martin Dear Sirs: It is my clients' understanding that you have agreed to release unto them the 1999 Volkswagen GTI upon written confirmation of their receipt of the 2007 Rider engine, including all parts associated therewith. It is presumed that if such a writing is given, that this matter will be considered amicably resolved or otherwise settled. Kindly, let me know at your earliest opportunity if this arrangement is correct. If this is not correct, kindly let me know. Thank you for your attention to this matter. Very truly yours, KOI~LAS & KENNEDY v- James W. Kollas cc. Martin EXHIBIT 11 ~ ANDREA MATTER-MARTIN and :IN THE COURT OF COMMON PLEAS OF MATTHEW MARTIN, :CUMBERLAND COUNTY, PENNSYLVANIA husband and wife : Plaintiffs V. :DOCKET NO. JACK G. FRY, JR and E.P. SERVICE CENTER, INC., Defendants :CIVIL ACTION -LAW & EQUITY VERIFICATION I, ANDREA MATTER-MARTIN, verify that the statements made in the foregoing COMPLAINT are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. 4904, relating to unsworn falsification to authorities. By: ~~ ~~~~ ~ ~~ . Andrea Matter-Martin DATE: ~ ~ ~ 3 - a'1 ~`l ~ D C. c: ~ 'T! `~( `-~. ~ ~ C ~L nt r~--- y ,w ~ r - r` ~~ P1 4 -~ ~+ N :{ ~ ~~ \v~ SHERIFF'S RETURN - REGULAR ~ ,~ CASE NO: 2007-04768 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MATTER-MARTIN ANDREA ET AL VS FRY JACK G JR ET AL RICHARD SMITH Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - EQUITY was served upon FRY JACK G JR the DEFENDANT at 1400:00 HOURS, on the 15th day of August 2007 at 311 FIRST STREET SUMMERDALE, PA 17093 by handing to a true and attested copy of COMPLAINT - EQUITY together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 15.36 Postage .58 Surcharge 10.00 00 gl 2 4"' b 7 ~ 4 Sworn and Subscibed to before me this day So Answers: R. Thomas Kline 08/20/2007 KOLLAS & KENNEDY By: ty Sher of A.D. SHERIFF'S RETURN - REGULAR. l .w CASE NO: 2007-04768 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MATTER-MARTIN ANDREA ET AL VS FRY JACK G JR ET AL RICHARD SMITH Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - EQUITY was served upon E P SERVICE CENTER INC the DEFENDANT at 1700:00 HOURS, on the 15th day of August 2007 at 311 FIRST STREET SUMMERDALE, PA 17093 by handing to JACK FRY JR, OWNER a true and attested copy of COMPLAINT - EQUITY together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 B' fig' ~ ~n/ 00 1 Sworn and Subscibed to before me this day So Answers: ~~~C i~~ -~ R. Thomas Kline 08/20/2007 KOLLAS & By: of A.D. ANDREA MATTER-MARTIN and MATTHEW MARTIN, HUSBI~ND, husband and wife, Plaintiffs vs. JACK G. FRY, JR. and E.P. SERVICE CENTER, INC., Delfendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.: 07-4768 CIVIL TERM NOTICE TO PLEAD You are hereby notified tp file a written response to the enclosed Preliminary Objections of Defendant, Jack R. Fry, Jr., within twenty (20) days from service hereof or a judgment maybe entered against you. KEEFER WOOD ALLEN & RAHAL, LLP By: t ANDREA MATTER MARTII~T and MATTHEW MARTIN, HUSBIAND, husband and wife, Plaintiffs vs. JACK G. FRY, JR and E.P. SERVICE CENTER, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.: 07-4768 CIVIL TERM DEFENDi~NTS' PRELIMINARY OBJECTIONS PU$tSUANT TO PA. R CIV. P. 1028 AND NOW, come Defendants, Jack G. Fry, Jr. and E.P. Service Center, Inc., by and through their counsel, Keefer Wood Allen & Rahal, LLP, and file the following Preliminary Objections pursuant to Pa. R. Civ. P. 1028, averring as follows: 1. Plaintiffs, Andreas Matter-Martin and Matthew Martin, are adult individuals residing in Enola, Cumberland 4~ounty, Pennsylvania. 2. Defendant, Jack ~. Fry, Jr., is an adult individual residing in Summerdale, Cumberland County, Pennsylvania. 3. Plaintiffs commenced this action by filing a Complaint on or about August 13, 2007, against the Defendants. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURER PURS!~[TANT TO PA. R CIV. P.1028(a)(4) 4. Paragraphs 1 throiugh 3 above are incorporated here by reference as if set forth in full. 5. Nowhere in the Complaint does the Plaintiff allege that Andrea Matter-Martin possesses an ownership interest in the 1999 Volkswagen GTI, license plate number DGK-2973 (hereafter "Car"). 6. To the contrary, P;~aintiffs plead that the Car is owned by Matthew Martin. 7. The Complaint fi1!ed by Plaintiffs is brought by Andrea Matter-Martin, as evidenced by the Verification of the Complaint. 8. A complaint can tie brought only by an aggrieved party. Inasmuch as Andrea Matter-Martin does not possess a-n ownership interest in the Car, she is not an aggrieved party. 9. Accordingly, Defendant cannot be responsible to Andrea Matter-Martin in tort on the underlying claims. WHEREFORE, Defendants respectfully request that this Honorable Court dismiss the Complaint with prejudice and grant other such relief as the Court deems fair and just. PRELIMINARY O1~JECTION FOR LACK OF CAPACITY TO SUE PURS~JANT TO PA. R CIV. P.1028(a)(5) 10. Paragraphs 1 through 9 above are incorporated here by reference as if set forth in full. 11. Nowhere in the Complaint does the Plaintiff allege that Andrea Matter-Martin possesses an ownership interest in'. the 1999 Volkswagen GTI, license plate number DGK-2973. 12. To the contrary, l~l~.intiffs plead that the Car is owned by Matthew Martin. 2 13. The Complaint filled by Plaintiffs is brought by Andrea Matter-Martin, as evidenced by the Verification of the Complaint. 14. A complaint can l~e brought only by an aggrieved party. Inasmuch as Andrea Matter-Martin does not possess aln ownership interest in the Car, she is not an aggrieved party. WHEREFORE, Defendatnts respectfully request that this Honorable Court dismiss the Plaintiffs' claims against them iris their entirety as Andrea Matter-Martin lacks the capacity to sue Defendants. PRELIMINARY OBJECTION FOR LEGAL INSUFFICIENCY OF COUNTS I, II and III Ul'KDER PA. R CIV. P. 1028(a)(4) 15. Paragraphs 1 through 14 above are incorporated here by reference as if set forth in full. 16. Counts I, II and III all allege punitive damages (see paragraphs 22, 23 and 28 of Plaintiffs' Complaint) for "outrageous, willful, wanton, and/or in reckless disregard of Plaintiffs' rights, and Plaintiffs therefore seek recovery of punitive damages and attorneys' fees." 17. Plaintiffs' averments are merely boilerplate language and fail to allege facts showing Defendants engaged in conduct which would give rise to a claim for punitive damages. WHEREFORE, Defendants respectfully request Counts I, II and III be stricken from the Complaint pursuant to Pa. R.C.P. No. 1028(a)(4). PRELIMINARY OBJECTION PURSUANT TO PA. R CIV. P. 1028(3)and/or(4) 18. Paragraphs 1 through 17 above are incorporated here by reference as if set forth in full. 3 19. Count I of the Complaint purports to set forth a claim for special damages. However, the count is legally insufficient since a claim for special damages must be pled with specificity delineating the costs/damages incurred. 20. Count I of the Complaint contains none of the above information and therefore, is legally insufficient to set forth a claim for special damages and does not allow the Defendants to properly respond or defend against such claim. 21. Finally, if the Court should determine that Count I is legally sufficient, it contains insufficient specificity to allow the Defendants to respond to the same. WHEREFORE, the Defendants request that this Honorable Court dismiss Count I, or in the alternative, direct the Plaintiffs to file a more specific pleading with regard to Count I, indicating what was said to whom, by whom and when and further confirming that no privilege existed to the same. Dated: August 28, 2007 Respectfully submitted, KEEFER WOOD ALLEN & RAHAL, LLP By Attorney I.D~#78277 635 N. 12~' St., Suite 400 Lemoyne, PA 17043 (717) 612-5803 Attorneys for Defendants 4 CERTIFICATE OF SERVICE I, Eric R. Augustine, Esquire, one of the attorneys for Defendants, Jack G. Fry, Jr. and E.P. Service Center, Inc., hereby certify that I have served the foregoing PRELIMINARY OBJECTIONS upon counsel of record tlus date by depositing a true and correct copy of the same in the United States mail, first-class postage prepaid, addressed as follows: James W. Kollas, Esquire Kollas and Kennedy 1104 Fernwood Avenue Camp Hill, PA 17011 KEEFER WOOD ALLEN & RAHAL, LLP B ~~ Y Eric R. Augusti Dated: August 28, 2007 C? ~ ^' c--., ~ p ¢ _.~ ~ .~~ ~ ~ ~ ~~ ~ ~- trt vA~ ~_ ..4 C_3 ., { ~_`' ;i C~ ,~ rn ~~ c1't ~t MATTHEW MARTIN, Plaintiff V. JACK G. FRY, JR and E.P. SERVICE CENTER, INC., Defendants :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA :DOCKET N0.07-4768 CIVIL TERM :CIVIL ACTION -LAW & EQUITY 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 aze warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Baz Association 32 South Bedford Street Cazlisle, Pennsylvania 17013 (717) 249-3166 MATTHEW MARTIN, Plaintiff V. JACK G. FRY, JR and E.P. SERVICE CENTER, INC., Defendants :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA :DOCKET N0.07-4768 CIVIL TERM :CIVIL ACTION -LAW & EQUITY AVISO LISTED HA SIDO DEMANDADO EN LA CORTE. Si usted desea defenderse de las quejas expuestas en las paginas siguientes, debe tomar accion dentro de veinte (20) dias a partir de la fecha en que recibio la demanda y el aviso. Usted debe presentar comparecencia escrita en persona o por abogado y presenter en la Corte por escrito sus defensas o sus objeciones a las demandas en su contra. Se le avisa que si no se defiende, el caso puede proceder sin usted y la Corte puede decidir en su contra sin mas aviso o notificacion por cualquier dinero reclamado en la demanda o por cualquier otra queja o compensacion reclamados por el Demandante. LISTED PUEDE PERDER DINERO, O PROPIEDADES U OTROS DERECHOS IMPORTANTES PARA LISTED. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI LISTED NO TIENE O NO CONOCE UN ABOGADO, VAYA O LLAME A LA OFICINA EN LA DIRECCION ESCRITA ABAJO PARA AVERIGUAR DONDE PUEDE OBTENER ASISTENCIA LEGAL. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 MATTHEW MARTIN, Plaintiff V. JACK G. FRY, JR and E.P. SERVICE CENTER, INC., Defendants :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA DOCKET N0.07-4768 CIVIL TERM :CIVIL ACTION -LAW & EQUITY FIRST AMENDED COMPLAINT AND NOW comes the Plaintiff, Matthew Martin, by and through his attorneys, KOLLAS AND KENNEDY, and avers the following in support of this complaint: BACKGROUND Plaintiff, Matthew Martin, is an adult individual with a residence at 806 Belle Vista Drive, Enola, Cumberland County, Pennsylvania 17025. 2. Defendant, Jack G. Fry, Jr., is an adult individual residing at 2 Wayne Street, Summerdale, Cumberland County, Pennsylvania 17093. 3. Defendant, E.P. Service Center, Inc., is a Pennsylvania corporation with a principal place of business located at 311 First Street, Summerdale, Cumberland County, Pennsylvania 17093. 4. Plaintiff, Matthew Martin, is currently on active military status with the United States Army and is stationed in South Korea. TRANSACTIONS IN QUESTION 5. On or about January 8, 2004, Matthew Martin and his friend Jason Fry, son of Defendant Jack G. Fry, Jr., were traveling together in a 1999 Volkswagen GTI, owned and operated by Mr. Martin, on a trip in the state of Maryland. 6. On or about January, 8, 2004, the 1999 Volkswagen GTI, license plate number DGK-2973 (hereinafter referred to as the "car"), broke down. 7. On or about January 9, 2004, Mr. Martin contracted with McAlister Towing to have the car towed to the location of Defendant E.P. Service Center, Inc. 8. On or about January 9, 2004, the caz was towed to the location of Defendant E.P. Service Center, Inc., and placed in a storage area thereon. 9. It was Mr. Martin's understanding that the caz was to be stored at no chazge to him by either Defendant Jack G. Fry, Jr., or Defendant E.P. Service Center, Inc.; rather, storage was to be provided to him for free as a friend of Jason Fry and as an acquaintance of Defendant Jack G. Fry, Jr. 10. In the summer of 2007, the friendly relationship between Mr. Martin and Jason and Jack G. Fry, Jr., deteriorated over a dispute regarding a 2007 Rider engine. 11. In early July of 2007, Mr. Martin made verbal and/or written a-mail demand upon Defendant Fry to return the car as well as the engine. 12. In a letter dated July 19, 2007, counsel for Mr. Martin made formal written demand for the return of the caz and the 2007 Rider engine. A true and correct copy of said letter is attached hereto as Exhibit "A." 13. By July 30, 2007, the 2007 Rider engine had been returned, but the caz was not. 14. In a letter dated July 30, 2007, counsel for Mr. Martin attempted to resolve the matter amicably. A true and correct copy of said letter is attached hereto as Exhibit "B." 15. In a telephonic conversation Matthew Martin had with Defendant Fry on August 10, 2007, Defendant Fry informed Mr. Martin that the car would be released upon payment of $3,000.00 in storage fees. 16. Until that discussion, Defendant Fry had not issued a specific demand for payment; moreover, Mr. Martin had not, and has not, received any monthly invoices for storage, nor had, or has he, received any yeazly invoices for storage. COUNT I: REPLEVIN 17. Plaintiff incorporates herein by reference the allegations set forth in pazagraphs 1 through 16 as though the same were fully set forth herein at length. 18. Plaintiff Martin believes and therefore avers that the car is located on the property of Defendant E.P. Service Center, Inc., namely: 311 First Street, Summerdale, Cumberland County, Pennsylvania 17093. 19. Despite written demand, Defendants have failed and otherwise refused to relinquish possession of Plaintiff s car. 20. The fair mazket value of the caz is $9,000.00. 21. Plaintiff Martin has been and will continue to be damaged by Defendants' detention of Plaintiff s caz in an amount which cannot be fully computed until the removal of Plaintiff's property from Defendants' possession is complete; however, Plaintiff Martin has received an estimate of $100.00 for the cost of manpower and equipment to remove Plaintiff s car from Defendants' possession. WHEREFORE, Plaintiff, Matthew Martin, respectfully requests that this Honorable Court grant judgment in his favor for possession of the caz and for additional costs, interest, and such other damages as this Honorable Court sees fit. COUNT II: UNJUST ENRICHMENT 22. Plaintiff incorporates herein by reference the allegations set forth in paragraphs 1 through 21 as though the same were fully set forth herein at length. 23. Defendants knowingly and without Plaintiff's consent have retained possession and dominion over Plaintiff s caz. 24. Despite repeated requests for return of said car by Plaintiff, Defendants have refused or otherwise failed to return said caz. 25. Defendants have been unjustly enriched by retaining said caz at the expense of Plaintiff. 26. As a direct and proximate result of the actions of Defendants as aforesaid, Plaintiff has suffered and continues to suffer serious injury, including but not limited to, loss of the use of said car, and other such damages as may be discovered. WHEREFORE, Plaintiff, Matthew Martin, respectfully requests that this Honorable Court grant judgment in his favor for possession of the caz and for additional costs, interest, and such other damages as this Honorable Court sees fit. COUNT III: CONVERSION 27. Plaintiff incorporates herein by reference the allegations set forth in paragraphs 1 through 26 as though the same were fully set forth herein at length. 28. Defendants knowingly and without Plaintiff's consent have retained possession and dominion over Plaintiff's car. 29. Despite repeated requests for return of said car by Plaintiff, Defendants have refused or otherwise failed to return said caz. 30. Defendants' retention of said car constitutes serious interference with Plaintiff's rights in said car. 31. As a direct and proximate result of the actions of Defendants as aforesaid, Plaintiff has suffered and continues to suffer serious injury, including but not limited to, loss of the use of said caz, and other such damages as may be discovered. WHEREFORE, Plaintiff, Matthew Martin, respectfully requests that this Honorable Court grant judgment in his favor for possession of the caz and for additional costs, interest, and such other damages as this Honorable Court sees fit. RESPECTFULLY SUBMITTED: dames W. Kolla"s, Esquire Supreme Court I.D. No. 81959 KOLLAS AND KENNEDY 1104 Fernwood Avenue Suite 104 Camp Hill, PA 17011 (717) 731-1600 ATTORNEY FOR PLAINTIFF Dated: ~~,~ ~ `d~ LAW OFFICES OF KOLLAS AND KENNEDY 1 l04 FERNWOOD AVENUE CAMP HILL, PENNSYLVANIA 17011 WILLIAM C. KOLL/1S JAMES W. KOLLAS OF COUNSEL MARY I~LLAS KENNEDY TELEPHONE NO. (717) 731-ta00 July 19, 2007 FAX No. (717) 731.1~eo Mr. Jack G. Fry, Jr. Mr. Jason Fry E.P. Service Center, Inc. 311 First Street Summerdale, PA 17093 RE: 2007 Rider Engine; 1999 Volkswagen GTI Andrea and Matthew Martin Dear Sirs: Please be advised that this law firm, Kollas and Kennedy, has been retained by Andrea and Matthew Martin in regard to a 2007 Rider Engine and a 1999 Volkswagen GTI. Any communications regarding these items should henceforth be directed to this office and not the Martins. The Martins demand immediate return of both the 2007 Rider Engine and the 1999 Volkswagen GTI. Furthermore, the Martins demand that you cease and desist from any and all use of either item. If you fail to return the items and/or continue to use the items, the Martins are prepared to file suits against you in the Court of Common Pleas of Cumberland County. Said suits may involve civil and criminal actions. You may contact this office to make arrangements for the return of these items. If you fail to respond to this letter within the next five (5) days, the Martins shall take all steps necessary to protect their rights to their property. Very truly yours, KOIfLAS & KENNEDY ~~ ,- ~; James W. Kollas cc. Martin 'T ~~ ~ ti LAW OFFICES OF KOLLAS AND KENNEDY 1104 FERNWOOD AVENUE CAMP HILL, PENNSYLVANIA 17011 W1LLiAM C. KOLLAS JAMES W. KOLLAS July 30, 2007 Mr. Jack G. Fry, Jr. Mr. Jason Fry E.P. Service Center, Inc. 311 First Street Summerdale, PA 17093 RE: 2007 Rider Engine; 1999 Volkswagee GTI Andrea and Matthew Martin Dear Sirs: OF COUNSEL MARY KOLLAS KENNEDY TELEPHONE NO. (717) 731-1600 FAX NO. (717) 731.1480 It is my clients' understanding that you have agreed to release unto them the 1999 Volkswagen GTI upon written confirmation of their receipt of the 2007 Rider engine, including all parts associated therewith. It is presumed that if such a writing is given, that this matter will be considered amicably resolved or otherwise settled. Kindly, let me know at your earliest opportunity if this arrangement is correct. If this is not correct, kindly let me know. Thank you for your attention to this matter. Very truly yours, KOI,~LAS &,KENNEDY .. ~~ _. ~:~ ~_... i ° r `i , ~~-~ James W. Kollas cc. Martin 1, ~~ MATTHEW MARTIN, :IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA V. :DOCKET N0.07-4768 CIVIL TERM JACK G. FRY, JR and E.P. SERVICE CENTER, INC., Defendants :CIVIL ACTION -LAW & EQUITY VERIFICATION I, James W. Kollas, verify that I am the attorney for the Plaintiff in this action and that the foregoing First Amended Complaint is true and correct to the best of my knowledge, information and belief. I make this verification in lieu of the Plaintiff, because the Plaintiff is outside the jurisdiction of the court and his verification could not be obtained within the time allowed for filing this pleading. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. § 4904 relating to unsworn falsification to authorities. By: James W. Kollas, Esquire Date: "~ ~ ~~ N_ ~ t- « y y4 CI) t~..a. max,; ., +~ ~ f ''p ~i ~ .a3 ~~ ~_ 7 ~ ! ' A ~ ~ y _ ( ) y ,~ C._ ~~ ANDREA MATTER-MARTIN and MATTHEW MARTIN, HUSBAND, husband and wife, Plaintiffs vs. JACK G. FRY, JR. and E.P. SERVICE CENTER, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.: 07-4768 CIVIL TERM ANSWER TO FIRST AMENDED COMPLAINT WITH NEW MATTER AND COUNTERCLAIMS AND NOW, comes Defendants, Jack G. Fry, Jr. and E.P. Service Center, Inc., by and through their attorneys Keefer Wood Allen & Rahal, LLP, and files the within Answer to First Amended Complaint with New Matter and Counterclaims averring as follows: 1. Admitted upon information and belief. 2. Admitted. 3. Denied as stated. E.P. Service Center, Inc. is a Pennsylvania corporation which has a listed address of 311 First Street, Summerdale, Cumberland County, Pennsylvania. However, E.P. Service Center, Inc. is not an operating Pennsylvania corporation. 4. Admitted upon information and belief. 1 5. Denied as stated. On or about January 8, 2004, Jason Fry was required to travel in the state of Maryland for business reasons. Matthew Martin, deciding to pass time, offered to drive Jason Fry in Martin's automobile. 6. Admitted. 7. Admitted upon information and belief. 8. Denied as stated. On or about January 9, 2004, the car was towed to 311 First Street, Summerdale, Cumberland County, Pennsylvania. 9. Denied. Defendant Fry is in business which in fact charges individuals storage fees for space used at the Defendants' business. 10. Denied as stated. The source of deterioration of the relationship between Plaintiff and Defendant Fry included, but was not limited to, a 2007 Rider engine. 11. Denied as stated. Plaintiff entered into discussions with Defendant Fry regarding retrieving his vehicle and paying Defendant Fry for having stored his vehicle at Defendant Fay's business for a period of almost four (4) years. It is denied that Plaintiff made any verbal statements which could be construed as a demand. Further, Defendant Fry does not have an e- mail address. Accordingly, it is denied that Plaintiff issued any written e-mail demand of any sort upon Defendant Fry. 12. Admitted. 13. Admitted. 2 14. Denied as stated. It is admitted that counsel for Mr. Martin wrote a letter to Defendant Fry dated July 30, 2007. It is denied that this was an attempt at an "amicable" resolution. 15. Denied as stated. Defendant Fry informed Plaintiff that Plaintiff would have to pay storage fees. Defendant and Plaintiff engaged in negotiations regarding anagreed-upon price. In the course of that and subsequent telephone conversations, Plaintiff agreed that he would in fact pay Defendant Fry a sum of money (amount not agreed upon) for storage fees that had accrued. 16. Denied. Defendant Fry had previously advised Plaintiff he would have to pay storage fees. COUNT I -REPLEVIN 17. Paragraphs 1 through 16 above are incorporated herein by reference as if set forth in full. 18. Denied as stated. The car in question is located on the property of 311 First Street, Summerdale, Cumberland County, Pennsylvania. 19. Denied. Strict proof is demanded at the time of trial. 20. Denied. The average wholesale price for this model automobile is $4,750 which presumes that the car is in a drivable condition. The car in question is not in a drivable condition. Additionally, Plaintiff has e-mailed Defendants' son and advised that the maximum value of the automobile in its present condition is $1,500. 3 21. After reasonable investigation, Defendant is without sufficient knowledge or information to form a belief as to the truth of the matter asserted. Accordingly, it is denied and strict proof is demanded at the time of trial. WHEREFORE, Defendant respectfully requests judgment in his favor and against Matthew Martin, that the Complaint be dismissed, and that the Court grant such other relief as it deems fair and just. COUNT II -UNJUST ENRICHMENT 22. Paragraphs 1 through 21 are incorporated herein by reference as if set forth in full. 23. Denied. Strict proof is demanded at the time of trial. 24. Denied. Strict proof is demanded at the time of trial. 25. Denied. To the contrary, Defendants continue to suffer economic damages because of the Defendants' action and inaction regarding the automobile in question. 26. After reasonable investigation, Defendant is without sufficient knowledge or information to form a belief as to the truth of the matter asserted. Accordingly, it is denied and strict proof is demanded at the time of trial. WHEREFORE, Defendant respectfully requests judgment in his favor and against Matthew Martin, that the Complaint be dismissed, and that the Court grant such other relief as it deems fair and just. COUNT III -CONVERSION 27. Paragraphs 1 through 26 are incorporated herein by reference as if set forth in full. 28. Denied. Strict proof is demanded at the time of trial. 4 29. Denied. Strict proof is demanded at the time of trial. 30. Denied. Strict proof is demanded at the time of trial. 31. After reasonable investigation, Defendant is without sufficient knowledge or information to forma belief as to the truth of the matter asserted. Accordingly, it is denied and strict proof is demanded at the time of trial. WHEREFORE, Defendant respectfully requests judgment in his favor and against Matthew Martin, that the Complaint be dismissed, and that the Court grant such other relief as it deems fair and just. NEW MATTER 32. Plaintiffs' Complaint fails to state a claim upon which relief can be granted. 33. Defendant Fry informed Plaintiff several times over the course of approximately three and one-half (3-1/2) years that Plaintiff would need to remove his automobile from Defendant Fry's business location. 34. Defendant Fry informed Plaintiff that Plaintiff would be responsible for paying storage fees to the Defendant. 35. In the course of telephone conversations, Plaintiff agreed to pay Defendant Fry storage fees and attempted to negotiate a price. 36. Eventually Plaintiff offered the specific sum of $1,500 to Defendant Fry to cover the cost of storage from the time his car was towed to Defendant Fry's business location. 5 37. Defendant Fry informed Plaintiff that $1,500 was not enough to cover the cost of storage fees for the time period that the car had and has been at Defendant Fry's place of business. 38. Defendant Fry charges $ 25.00 per day for the storage of an automobile. 39. A sign hangs within the public perview of the Defendants' business which clearly and specifically states the costs of storing an automobile at Defendants' business. At no time did the Defendant ever advise Plaintiff that Plaintiff could store his automobile at the Defendants' business free of charge. 40. Any injuries or damages sustained by Plaintiff were caused by Plaintiffs' actions or failures to act and not by actions or failures to act of Defendant. 41. No actions or failures to act by Defendant were wrongful or the cause, in law or in fact, of Plaintiffs' alleged damages. 42. Plaintiffs' claims are barred, in whole or in part, by his failure to mitigate damages. 43. The negligence, carelessness, recklessness and/or willful behavior of Plaintiff constituted an intervening and superseding cause of Plaintiffs' alleged damages. 44. Defendant intends to rely upon such other defenses as may become reasonably available hereafter or become apparent during discovery in this case and hereby reserves his right to amend his answer to assert any such defense. 6 WHEREFORE, Defendant Fry respectfully requests judgment in his favor and against Matthew Martin, that the Complaint be dismissed, and that the Court grant such other relief as it deems fair and just. COUNTERCLAIMS COUNT I -BREACH OF CONTRACT 45. Paragraphs 1 through 44 are incorporated herein by reference as if set forth in full 46. Defendant Fry is in business which charges persons storage fees for the retention of automobiles on his property. 47. Plaintiff, knowing the Defendant is in business which charges storage fees for individuals to store their automobiles, arranged to have his automobile towed to Defendant Fry's business location. 48. Plaintiff expressed that he would in fact pay Defendant Fry a sum of money for the storage of Plaintiffs' automobile at Defendant Fry's business location. 49. Plaintiff has never paid Defendant Fry any amount of money for the storage of his automobile. 50. As the Plaintiffs' automobile has taken valuable space on the property of Defendants' business, Defendant Fry has been unable to lease that space used by Plaintiffs' automobile to Defendant Fry's detriment. 51. Plaintiffs' automobile has been stored at the Defendants' place of business continuously from January 9, 2004 through present. From January 9, 2004 through the date of the filing of the Complaint at this docket, 1,340 days have elapsed. 7 52. Defendant Fry has suffered financial damages in the amount of $33,500 due to the presses of the Plaintiffs' automobile. WHEREFORE, Defendant Fry respectfully requests this Honorable Court enter judgment in his favor and against Plaintiff Martin in the amount of $33,500, plus interest, costs of suit and such other relief as the Court deems fair and just. COURT II - QUANTUM MERUITS/UNJUST ENRICHMENT 53. Paragraphs 1 through 52 are incorporated herein by reference as if set forth in full. 54. Defendant Fry allowed Plaintiff Martin to store his automobile at his business location. 55. The Defendant recognized he was receiving the value from Defendant Fry and indicated his appreciation of such benefit by indicating that he would pay a sum of money for the storage of his automobile. 56. Plaintiff Martin has never paid Defendant Fry any money for the storage of his automobile. 57. It is inequitable for Plaintiff Martin to not pay Defendant Fry any money for the use of Defendant Fry's space at his business. WHEREFORE, Defendant Fry respectfully requests this Honorable Court enter judgment in his favor and against Plaintiff Martin in the amount of $33,500, plus interest, costs of suit and such other relief as the Court deems fair and just. 8 Respectfully submitted, Dated: September 28, 2007 KEEFER WOOD ALLEN & RAHAL, LLP . ~/ B 1 ~ Y RIC R. AUGUS" Attorney I.D. #7 77 635 North 12''' treet, Suite 400 Lemoyne, PA 17043 (717) 612-5803 (717) 612-5805 (fax) Attorneys for Defendants 9 VERIFICATION I, JACK G. FRY, JR., the undersigned, acknowledge that: I am an adult individual and one of the witnesses herein; 2. The averments/responses set forth in the foregoing ANSWER TO FIRST AMENDED COMPLAINT WITH NEW MATTER AND COUNTERCLAIMS are true and correct to the best of my knowledge, information, and belief; and 3. I am aware that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. JACK G. FR , JR. CERTIFICATE OF SERVICE I, Eric R. Augustine, Esquire, one of the attorneys for Defendants, Jack G. Fry, Jr. and E.P. Service Center, Inc. hereby certify that I have served the foregoing ANSWER TO FIRST AMENDED COMPLAINT WITH NEW MATTER AND COUNTERCLAIMS this date by depositing a true and correct copy of the same in the United States mail, first-class postage prepaid, addressed as follows: James W. Kollas, Esquire Kollas & Kennedy 1104 Fernwood Avenue, Suite 104 Camp Hill, PA 17011 KEEFER WOOD ALLEN & ~%7 By Eric R. Augustine Dated: September 28, 2007 r.'rt ~ r• . ANDREA MATTER-MARTIN and MATTHEW MARTIN, HUSBAND, husband and wife, Plaintiffs vs. JACK G. FRY, JR. and E.P. SERVICE CENTER, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.: 07-4768 CIVIL TERM PRAECIPE TO ATTACH NOTICE TO PLEAD TO DEFENDANTS' ANSWER TO FIRST AMENDED COMPLAINT WITH NEW MATTER AND COUNTERCLAIMS TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Kindly attach the original Notice to Plead to Defendants' Answer to First Amended Complaint with New Matter and Counterclaims filed in the matter above. Respectfully Submitted, KEEFER WOOD ALLEN & RAHAL, LLP DATED: October L , 2007 BY: Eric R. gustine, Esquire Identi ation No. 78277 635 N. 12`'' Street, Suite 400 Lemoyne, PA 17043 Attorneys for Defendant ~,"~ .. , , Y-- , CERTIFICATE OF SERVICE I, Eric R. Augustine, Esquire, one of the attorneys for Defendants, Jack G. Fry, Jr. and E.P. Service Center, Inc. hereby certify that I have served the foregoing PRAECIPE TO ATTACH DEFENDANTS' ANSWER TO FIRST AMENDED COMPLAINT WITH NEW MATTER AND COUNTERCLAIMS this date by depositing a true and correct copy of the same in the United States mail, first-class postage prepaid, addressed as follows: James W. Kollas, Esquire Kollas & Kennedy 1104 Fernwood Avenue, Suite 104 Camp Hill, PA 17011 KEEFER WOOD ALLEN & RAHAL, LLP By Dated: October 2 , 2007 ~ i ~- <<~ ' -l :, .1 r C v7 _.- ~' ~~ r ~~ _.__ ~ _. , +,i, f ~ = - ~•~- :13 ANDREA MATTER-MARTIN and MATTHEW MARTIN, HUSBAND, husband and wife, Plaintiffs vs. JACK G. FRY, JR. and E.P. SERVICE CENTER, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.: 07-4768 CIVIL TERM NOTICE TO PLEAD You are hereby notified to file a written response to the enclosed Answer to First Amended Complaint with New Matter and Counterclaims of Defendant, Jack R. Fry, Jr., within twenty (20) days from service hereof or a judgment maybe entered against you. KEEFER WOOD ALLEN & RAHAL, LLP By: ~' ' c' ~~ - _.~ -, --, --a " i'ri ;~ .. ~ c,J ._.,. l~ __., „3 =~' ...! ~ ~ < MATTHEW MARTIN, :IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA V. :DOCKET NO. 07-4768 CIVIL TERM JACK G. FRY, JR and E.P. SERVICE CENTER, INC., Defendants :CIVIL ACTION -LAW & EQUITY NOTICE TO PLEAD You are hereby notified to file a written response to the following Reply to New Matter and Counterclaims with Plaintiff's New Matter within twenty (20) days from service hereof or judgment may be entered against you. KOLLAS AND KENNEDY /f _ B `'''/ y: i James W. Kollas Supreme Court I.D. No. 81959 KOLLAS AND KENNEDY 1104 Fernwood Avenue Suite 104 Camp Hill, PA 17011 (717) 731-1600 ATTORNEY FOR PLAINTIFF MATTHEW MARTIN, Plaintiff V. JACK G. FRY, JR and E.P. SERVICE CENTER, INC., Defendants :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA :DOCKET NO. 07-4768 CIVIL TERM :CIVIL ACTION -LAW & EQUITY REPLY TO NEW MATTER AND COUNTERCLAIMS WITH PLAINTIFF'S NEW MATTER AND NOW comes the Plaintiff, Matthew Martin, by and through his attorneys, KOLLAS AND KENNEDY, and files this Reply to New Matter and Counterclaims with Plaintiff s New Matter, averring as follows: REPLY TO NEW MATTER 32. Denied as constituting conclusions of law to which a responsive pleading is not required under the Rules of Civil Procedure. To the extent a response is required, same is denied. 33. Denied as stated. It is denied that Defendant informed Plaintiff Martin as alleged. 34. Admitted in part and denied in part. Although Defendant Fry did express such a belief to Plaintiff Martin, Defendant has failed to include a date for such demand. To the extent that a date is missing, the statement is denied. Plaintiff Martin admits that after the events involving the Rider engine, Defendant Fry voiced his belief in payment. Plaintiff Martin denies any other inference. 35. Denied as stated. Plaintiff Martin did not agree to pay Defendant Fry as alleged; rather, Plaintiff Martin attempted reasonable negotiation to avoid litigation. 36. Admitted in part and denied in part. It is admitted that Plaintiff offered $1,500.00 to settle this matter outside litigation. Any inference that said offer legitimizes Defendant Fry's claims for storage fees is denied. By way of further answer, Defendant Fry expressed acounter-offer for $3,500.00 to settle the matter. 37. Admitted in part and denied in part. It is admitted that Defendant Fry rejected the offer of $1,500.00 to settle this matter outside litigation. Any inference that said offer legitimizes Defendant Fry's claims for storage fees is denied. By way of further answer, Defendant Fry expressed acounter-offer for $3,500.00 to settle the matter. 38. Denied. After reasonable investigation, Plaintiff Martin is without information sufficient to admit or deny the averments contained in this paragraph as to what the Defendant charges. To the extent an answer is required, same is denied. By way of further answer, Plaintiff Martin has never received a written invoice from Defendant Fry expressing such fees. 39. Denied. As to the first allegation: after reasonable investigation, Plaintiff is without information sufficient to admit or deny the averments contained in this paragraph as to what signs are present at Defendant's place of business. To Plaintiff's best recollection, no sign as alleged was present when Plaintiff's car was placed on the site and the existence of such is denied. As to the second allegation, it was Plaintiff Martin's understanding that the car was to be stored at no charge to him by either Defendant Jack G. Fry, Jr., or Defendant E.P. Service Center, Inc.; rather, storage was to 2 be provided to him for free as a friend of Jason Fry and as an acquaintance of Defendant Jack G. Fry, Jr. 40. Denied as constituting conclusions of law to which a responsive pleading is not required under the Rules of Civil Procedure. To the extent a response is required, same is denied. 41. Denied as constituting conclusions of law to which a responsive pleading is not required under the Rules of Civil Procedure. To the extent a response is required, same is denied. 42. Denied as constituting conclusions of law to which a responsive pleading is not required under the Rules of Civil Procedure. To the extent a response is required, same is denied. 43. Denied as constituting conclusions of law to which a responsive pleading is not required under the Rules of Civil Procedure. To the extent a response is required, same is denied. 44. Denied. After reasonable investigation, Plaintiff Martin is without information sufficient to admit or deny the averments contained in this paragraph as to what the Defendant intends. To the extent an answer is required, same is denied. WHEREFORE, Plaintiff, Matthew Martin, respectfully reasserts his request that this Honorable Court grant judgment in his favor for possession of the car and for additional costs, interest, and such other damages as this Honorable Court sees fit. 3 REPLY TO COUNTERCLAIMS "COUNT I -BREACH OF CONTRACT" 45. This paragraph requires no response. To the extent a response is required, same is denied. 46. Admitted. 47. Denied. Although Plaintiff Martin was aware that Defendant Fry charged customers for storage, Plaintiff Martin was not a customer of Defendant Fry. As a friend of Jason Fry, son of Defendant Fry, Plaintiff Martin had his car towed as alleged. However, it was Plaintiff Martin's understanding that the caz was to be stored at no charge to him by either Defendant Jack G. Fry, Jr., or Defendant E.P. Service Center, Inc.; rather, storage was to be provided to him for free as a friend of Jason Fry and as an acquaintance of Defendant Jack G. Fry, Jr. 48. Denied. It is specifically denied that Plaintiff Martin made the statement alleged. 49. Admitted. By way of further answer, it was Plaintiff Martin's understanding that the car was to be stored at no chazge to him by either Defendant Jack G. Fry, Jr., or Defendant E.P. Service Center, Inc.; rather, storage was to be provided to him for free as a friend of Jason Fry and as an acquaintance of Defendant Jack G. Fry, Jr. 50. Admitted in part and denied in part. It is admitted that the space occupied by Plaintiff Martin's car was unavailable to lease. It is denied that Defendant Fry has suffered detriment. By way of further answer, it was Plaintiff Martin's understanding that the car was to be stored at no charge to him by either Defendant Jack G. Fry, Jr., or Defendant E.P. Service Center, Inc.; rather, storage was to be provided to him for free as a friend of Jason Fry and as an acquaintance of Defendant Jack G. Fry, Jr. 4 51. Admitted. 52. Denied. It is specifically denied that Defendant Fry has suffered damages alleged. By way of further answer, it was Plaintiff Martin's understanding that the car was to be stored at no charge to him by either Defendant Jack G. Fry, Jr., or Defendant E.P. Service Center, Inc.; rather, storage was to be provided to him for free as a friend of Jason Fry and as an acquaintance of Defendant Jack G. Fry, Jr. Additionally, Defendant Fry had previously asked for $3,500.00 and not $33,500.00, which is an unreasonable amount. WHEREFORE, Plaintiff, Matthew Martin, respectfully reasserts his request that this Honorable Court grant judgment in his favor for possession of the car and for additional costs, interest, and such other damages as this Honorable Court sees fit. REPLY TO COUNTERCLAIMS "COURT II -QUANTUM MERUITS/UNJUST ENRICHMENT"1 53. This paragraph requires no response. To the extent a response is required, same is denied. 54. Admitted. By way of further answer, it was Plaintiff Martin's understanding that the car was to be stored at no charge to him by either Defendant Jack G. Fry, Jr., or Defendant E.P. Service Center, Inc.; rather, storage was to be provided to him for free as a friend of Jason Fry and as an acquaintance of Defendant Jack G. Fry, Jr. 55. Denied. Plaintiff Martin denies making the alleged recognition. Plaintiff Martin denies stating any indication of payment. By way of further answer, it was ' Quoted directly from Defendants' Answer to First Amended Complaint with New Matter and Counterclaims 5 Plaintiff Martin's understanding that the car was to be stored at no charge to him by either Defendant Jack G. Fry, Jr., or Defendant E.P. Service Center, Inc.; rather, storage was to be provided to him for free as a friend of Jason Fry and as an acquaintance of Defendant Jack G. Fry, Jr. 56. Admitted. By way of further answer, it was Plaintiff Martin's understanding that the car was to be stored at no charge to him by either Defendant Jack G. Fry, Jr., or Defendant E.P. Service Center, Inc.; rather, storage was to be provided to him for free as a friend of Jason Fry and as an acquaintance of Defendant Jack G. Fry, Jr. 57. Denied as constituting conclusions of law to which a responsive pleading is not required under the Rules of Civil Procedure. To the extent a response is required, same is denied. WHEREFORE, Plaintiff, Matthew Martin, respectfully reasserts his request that this Honorable Court grant judgment in his favor for possession of the car and for additional costs, interest, and such other damages as this Honorable Court sees fit. PLAINTIFF'S NEW MATTER 58. Plaintiff incorporates herein by reference the allegations set forth in paragraphs 1 through 31, of the First Amended Complaint, and paragraphs 32 through 57, of this Reply to New Matter and Counterclaims with Plaintiff's New Matter, as though the same were fully set forth herein at length. 59. Defendants' Counterclaims fail to state a claim upon which relief may be granted. 60. Any injuries or damages sustained by Defendants were caused by Defendants' actions or failures to act and not by actions or failures to act of Plaintiff. 6 61. Defendants' claims are barred, in whole or in part, by Defendants' failure to mitigate damages. Plaintiff has made repeated demand upon Defendants to return Plaintiff s car, and Defendants have refused to do so. 62. Defendants' claims are barred, in whole or in part, for failure of consideration in that: a. No consideration was given, or b. Alternatively, if consideration was given, such consideration was either past consideration or executed consideration. c. Mutual promises were not exchanged, or d. Alternatively, if promises were exchanged, such were illusory promises. It was Plaintiff Martin's understanding that the car was to be stored at no charge to him by either Defendant Jack G. Fry, Jr., or Defendant E.P. Service Center, Inc.; rather, storage was to be provided to him for free as a friend of Jason Fry and as an acquaintance of Defendant Jack G. Fry, Jr. 63. Defendants' claims are barred, in whole or in part, for waiver in that Defendants failed to send invoices or otherwise bill Plaintiff for the alleged services rendered. 64. Defendants' claims are barred, in whole or in part, as following within the statute of frauds. 65. Plaintiff intends to rely upon such other defenses as may become reasonably available hereafter or become apparent during discovery in this case and hereby reserves the right to amend his reply to assert such defense or defenses. 7 WHEREFORE, Plaintiff, Matthew Martin, respectfully reasserts his request that this Honorable Court grant judgment in his favor for possession of the car and for additional costs, interest, and such other damages as this Honorable Court sees fit. RESPECTFULLY SUBMITTED: ~ /~~--~_ ~~~ ~~ ames W. Kollas, Esquire Supreme Court I.D. No. 81959 KOLLAS AND KENNEDY 1104 Fernwood Avenue Suite 104 Camp Hill, PA 17011 (717) 731-1600 ATTORNEY FOR PLAINTIFF Dated: ~,o ~G//~ 8 MATTHEW MARTIN, :IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA V. :DOCKET NO. 07-4768 CIVIL TERM JACK G. FRY, JR and E.P. SERVICE CENTER, INC., Defendants :CIVIL ACTION -LAW & EQUITY VERIFICATION I, Matthew Martin, verify that the statements made in the foregoing Reply to New Matter and Counterclaims with Plaintiff's New Matter are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. 4904, relating to unsworn falsification to authorities. Matthew Martin Dated: / :: y MATTHEW MARTIN, :IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA V. :DOCKET NO. 07-4768 CIVIL TERM JACK G. FRY, JR and E.P. SERVICE CENTER, INC., Defendants :CIVIL ACTION -LAW & EQUITY CERTIFICATE OF SERVICE I, James W. Kollas, Esquire, one of the attorneys for Plaintiff Matthew Martin, hereby certify that I have served the foregoing Reply to New Matter and Counterclaims with Plaintiff s New Matter this date by depositing a true and correct copy of same in the United States mail, first-class postage prepaid, addressed as follows: Eric R. Augustine, Esquire Keefer, Wood, Allen & Rahal 635 North 12~' Street, Suite 400 Lemoyne, PA 17043 KOLLAS AND KENNEDY ,,~ f~ :/. ~,~,-~ ~ By: ,~/" James W. Kollas Dated: ~ /~ v~ rv ~ caw ~ -n -r E ;=: ~ ---t ,.,..} - ~ 4v -r~ i?l . ~ ~-, t"~' .' ~_ --k 1...-5 ~t___ .. r~ [`i'~ .- F .. c`=i T~ ' at .F;" s~ ~,~ _{ f ~ MATTHEW MARTIN, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA vs. NO.: 07-4768 CIVIL, TERM JACK G. FRY, JR. and E.P. SERVICE CENTER, INC., Defendants DEFENDANTS' RESPONSE TO PLAINTIFF'S NEW MATTER AND NOW, comes Defendants, Jack G. Fry, Jr. and E.P. Service Center, Inc., by and through their attorneys Keefer Wood Allen & Rahal, LLP, and files the within Defendants' Response to Plaintiff's New Matter averring as follows: 58. Paragraphs 1 through 57 of Defendants' Answer with New Matter and Counterclaims previously filed in this matter are incorporated here by reference as if set forth in full. 59.-64. Paragraphs 59 through 64 contain conclusions of law to which no response is required. To the extent a response is deemed necessary, they are denied and strict proof thereof demanded at the time of trial. 65. After reasonable investigation, Defendant is without sufficient knowledge or information to form a belief as to the truth of the matter asserted. Therefore, it is denied and strict proof thereof is demanded at the time of trial. 1 Respectfully submitted, KEEFER WOOD ALLEN & RAHAL, LLP Dated: October 3l , 2007 By /C ERIC R. AUGU~;~E Attorney I.D. #7 ~~77 635 North 12~' Street, Suite 400 Lemoyne, PA 17043 (717) 612-5803 (717) 612-5805 (fax) Attorneys for Defendants 2 CERTIFICATE OF SERVICE I, Eric R. Augustine, Esquire, one of the attorneys for Defendants, Jack G. Fry, Jr. and E.P. Service Center, Inc. hereby certify that I have served the foregoing DEFENDANTS' RESPONSE TO PLAINTIFF'S NEW MATTER this date by depositing a true and correct copy of the same in the United States mail, first-class postage prepaid, addressed as follows: James W. Kollas, Esquire Kollas & Kennedy 1104 Fernwood Avenue, Suite 104 Camp Hill, PA 17011 KEEFER WOOD ALLEN & RAHAL, LLP By Eric R. Augustin Dated: October _~, 2007 r-} ,.~, ~-- r_ ~ <°--> ~7 !ri-. _'!7 ' ; ,- ~. .. ~ _;. j`;J ~3^tt' ;' C~3 '~'' ^' MATTHEW MARTIN, Plaintiff V. :IN THE COURT OF COMMON PLEAS :OF CUMBERLAND COUNTY, :PENNSYLVANIA :DOCKET NO. 07-4768 CIVIL TERM JACK G. FRY, JR and E.P. SERVICE CENTER, INC., Defendants :CIVIL ACTION -LAW & EQUITY PRAECIPE TO DISCONTINUE To the Prothonotary: Because the parties to the above-captioned matter have reached settlement, in regard to the all claims of the Plaintiff in his Complaint and all claims of the Defendants in their Counterclaims, and in regard to all possible claims regarding the above-captioned matter, kindly DISCONTINUE this matter with prejudice. Respectfully submitted by: James W. Kollar Attorney for Plaintiff Dated: Z. ~~ ' ~2 Eric R. Augur ' e Attorney for efendants Dated: Z At,~++-, 200 8 * i MATTHEW MARTIN, :IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA V. :DOCKET NO. 07-4768 CIVIL TERM JACK G. FRY, JR and E.P. SERVICE CENTER, INC., Defendants :CIVIL ACTION -LAW & EQUITY CERTIFICATE OF SERVICE I, James W. Kollas, Esquire, one of the attorneys for Plaintiff Matthew Martin, hereby certify that I have served the foregoing Praecipe to Discontinue this date by depositing a true and correct copy of same in the United States mail, first-class postage prepaid, addressed as follows: Eric R. Augustine, Esquire Keefer, Wood, Allen & Rahal 635 North 12~' Street, Suite 400 Lemoyne, PA 17043 KOLLAS AND KENNEDY B ~~ Y~ James W. Kollas Dated: l- Z~f~ ~--~ ~` ~~~ ~~ I ',~, ~; ~; t c..~ -T~! ~~ - ~' ,_ _ r;. c:'s .'' ~.,~~