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Home My WebLink About08-0101Our File No.: 126732 APOTHAKEI? & ASSOCIATES, P.C. BY: David J. Apothaker, Esq. Attorney I.D.#38423 2417 Welsh Road, Suite 21 #520 Philadelphia, PA 19114 (215) 634-8920 Attorneys for Plaintiff FIA CARD SERVICES A/K/A BANK OF AMERICA c/o Apothaker & Associates, P.C. 2417 Welsh Road, Suite 21 #520 Philadelphia, PA 19114 Plaintiff, VS. ANDREW J KREIDER 3 PHEASANT CT MECHANICSBURG, PA 17055-4337 Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO.: N- (0l elvi I T?erM 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 Lawyer Referral and Information Service 800-990-9108 AVISO Le han demandado a usted en la corte. Si usted quiere defenderse do estas demandas expuestas en las paginas siguientes, usted tiene veinte (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Hace falta asentar una comparencia escrita o con un abogado v entregar a la corte en forma escrita sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede continuar la demanda en contra suya sin previo aviso o notificacion. Ademas, la corte puede decidir a favor del edemandante y requiere que usted compla con todas las provisions de esta demanda. Usted puede perder dinero o sus propiedades u otros derechos importantes pare usted. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO. VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION Lawyer Referral and Information Service 800-990-9108 APOTHAKER & ASSOCIATES, P.C. BY: David J. Npothaker, Esq. Attorney I.D.#38423 2417 Welsh Road, Suite 21 #520 Philadelphia, PA 19114 (215) 634-8920 Attorneys for Plaintiff FIA CARD SERVICES A/K/A BANK OF AMERICA c/o Apothaker & Associates, P.C. 2417 Welsh Road, Suite 21 #520 Philadelphia, PA 19114 Plaintiff, VS. ANDREW J KREIDER 3 PHEASANT CT MECHANICSBURG, PA 17055-4337 Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO.: 0 F- J6 / 6" 7u,µ. CIVIL ACTION COMPLAINT FIRST COUNT 1. Plaintiff, FIA CARD SERVICES A/K/A BANK OF AMERICA, is a company with its principal place of business located at c/o Apothaker & Associates, P.C., 2417 Welsh Road, Suite 21 #520, Philadelphia, PA 19114. 2. Defendant is ANDREW J KREIDER, an adult individual residing at 3 PHEASANT CT MECHANICSBURG, PA 17055-4337. 3. At the special instance and request of Defendant, Plaintiff sold and delivered to Defendant goods and/or services at the times, of the kinds, in the quantities, and for the prices set forth in Plaintiffs records. A true and correct copy of which is attached hereto, incorporated herein by reference and designated Exhibit "A". 4. Defendant received and accepted the goods and/or services described in Exhibit "A". 5. The prices set forth in Exhibit "A" are the fair, reasonable and market prices for said goods and/or services, and the prices which Defendant agreed to pay. 6. All credits, if any, to which Defendant is entitled, are set forth in Exhibit "A". 7. In addition, Plaintiff avers that Defendant has failed and continues to fail to make any payments, leaving a balance due and owing of $10,274.10. 8. Although demand has been made, Defendant has failed to make payment of the amount due as above. WHEREFORE, Plaintiff demands judgment in favor of Plaintiff and against Defendant(s) for the sum of $10,274.10 and requests this Court award Plaintiff attorney's fees and costs to the extent permitted by applicable law APOTHAKER & ASSOCIATES, P.C. Attorney or Plaintiff A Law Firm En d in Debt Collection BY: Dated: 12/21/2007 . Apothaker Our File No.: 126732 VERIFICATION David J. Apothaker, Esq. hereby states that I am counsel for plaintiff in this action, and that I am authorized to take this Verification, and that the statements made in the foregoing Civil Action Complaint are true and correct to the best of my knowledge, information, and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa.C.S.A. 4904 relating to unsworn falsification to authorities. DATE: 12/21/2007 Attorney for Plaintiff FIA CARD SERVICES A/K/A BANK OF AMERICA c/o Apothaker & Associates, P.C. 2417 Welsh Road, Suite 21 #520 Philadelphia, PA 19114 ANDREW J KREIDER 3 PHEASANT CT MECHANICSBURG, PA 17055-4337 STATEMENT OF ACCOUNT Debtor's Name: ANDREW J KREIDER Account Number: 4888937995332386 Balance Due: $10,274.10 Our File No.: 126732 EXHIBIT "A" t -O d .9a a 1 ` t 7 C7=) per"' Ca3 d CD +.s SHERIFF'S RETURN - REGULAR CASE NO: 2008-00101 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND FIA CARD SERVICES ET AL VS KREIDER ANDREW J SHARON LANTZ , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon i7VWTT11.7R AT\TnT? T/J .7 the DEFENDANT , at 1302:00 HOURS, on the 10th day of January , 2008 at 3 PHEASANT CT MECHANICSBURG, PA 17055-4337 by handing to ANITA KREIDER, WIFE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 111416P C?- So Answers: 18.00 15.36 t,.. ..rr_.:vrr +-? .- . 00 10.00 R. Thomas Kline .00 43.36 01/10/2008 APOTHAKER & ASSOCIATES A Sworn and Subscibed to By: before me this day --1 of A.D. Deputy Sherif Feb 107 Z060 1423:03 14109706635 -> U 717 761 8894 Mark Cauchon Page 8BZ FIA CARD SERVICES A/K/A BANK OF AMERICA, N.A. Plaintiff' V. ANDREW J KREIDER Defendant 1'N TIME COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DEFENDAN'T'S ANSWER TO FfihCOMPLAINT Defendant, Andrew J. Kreider, Pro Se, hereby responds to Plaintiffs Complaint as follows: After reasonable investigation, Defendant is without sufficient information to form an opinion as to the truth or falsity of the corresponding averment of Plaintiffs Complaint and it is therefore deemed denied. 2. Admitted, 3. :Denied. By way of further response, Defendant admits that Plaintiff furnished Defendant with Credit. Plaintiff never provided Defendant with any good or services. 4. Denied. By way of further response, there are no goods or services described in Exhibit "A". S. Denied. By way of further response, there are no goods or services described in :Exhibit "A" 6. Denied. By way of further response, there are no credits described in Exhibit "A''. 7. It is denied that Defendant has failed to make any payments on the credit account with Plaintiff. It is admitted that Defendant has been unable to make some payments to Pla.intitTon the account. By way of further response, the corresponding averment of Plaintiffs Complaint seems to suggest. the breach of a contract, but the operative document is not attached to Plaintiffs Complaint in direct contravention to the Pennsylvania. Rules of Civil Procedure. Feb'87 Z888 14:Z3:16 14189786635 -> 717 761 8894 Mark Cauchan Page 883 8. it is admitted that Plaintiff has made demand for payment and that Defendant has been unable to make some of the scheduled payments. WHEREFORE, Defendant demands a. testimonial accounting of all charges and fees alleged due with supporting reference to controlling contractual documentation and a Judicial determination of what amount, if any, is due and owing to Plaintiff. Respectfully subtir ltte&,~ ' rew J, Kreider, 11W) Sle, r? Ilor Feb,87 ZQHB 14:2328 14189786635 -> 717 761 8894 Mark Cauchon Page 884 V:b".RIF1CKT"TON 1 verify that the statements made herein are true and correct to the best of my knowledge, information and belief I understand that these statements are made subject to tile; penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Andrew J. Kreider 1? j? 216 Feb" 07 ZMH 1423:24 14189786635 -> 717 761 8894 Mark Eauchon Page 085 CERTIFICATE OF SERVICE I Hereby eert.ify that on this 7 day 20W a copy of DEFENDANT'S ANSWER TO 174i ""COMPLAINT was mailed, first-class, postage pre-paid to_ APOTHAKER & ASSOCIATES, P.C. David J. A.pothaher 2417 Welsh Road, Suite 21, #520 Philadelphia., PA 19114 Andrew J. Kreider ? ? Q -n ?.? iii; `*? ?' r*i +e? r-- -? rn ' +`- ???' ^' C? %??i ? . ? ? PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) r TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) FIA CARD SERVICES A/K/A BANK OFAMERICA ANDREW J KREIDER VS. No. 101 08 Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): MOTION FOR SUMMARY JUDGMENT 2. Identify all counsel who will argue cases: (a) for plaintiffs: KIMBERLY F. SCIAN, ESQUIRE 2417 WELSH RD., STE 21 #520 PHILA., PA 19114 (Name and Address) N/A (b) for defendants: (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: re I IMPARry F s c?Anl 4 Mul Print yo Or name PLA110T1 F 3 ILI / 200 r Attorney for Date: INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case Is relisted. ? C Tat ' i >Tr- ? a l `r n3 ,.? ` Our file No.: 126732 APOTHAKER & ASSOCIATES, P.C. 2417 Welsh Road, Suite 21 #520 Philadelphia, PA 19114 (215) 634-8920 Attorneys for Plaintiff Kimberly F. Scian, Esquire Attorney ID #55140 FIA CARD SERVICES A/K/A BANK OF AMERICA COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Plaintiff, VS. ANDREW J KREIDER NO.: 08-101 Civil Action Defendant. MOTION FOR SUMMARY JUDGMENT Plaintiff, FIA CARD SERVICES A/K/A BANK OF AMERICA, respectfully requests that the Court enter an Order granting Summary Judgment in its favor in the above captioned matter for the following reasons: 1. There are no genuine issues of material fact to be decided. 2. Defendant filed an answer on or about February 11, 2008, a copy of which is attached hereto as Exhibit A and incorporated by reference herein, wherein he admits failing to make payments on the account. 3. Plaintiff has provided an affidavit that defendant is in default and set forth the amount owed by the defendant. 4. Defendant has failed to sustain his burden of presenting facts which contradict the averments in Plaintiff's complaint, nor has he offered any legal defense to same. 5. Plaintiff has clearly demonstrated that there are no genuine issues of triable fact in this matter. WHEREFORE, Plaintiff respectfully requests that judgment be entered in its favor for the amount due with interest and costs as prayed for in the Complaint. Dated: 3/4/2008 Respectfully Submitted, Our file No.: 126732 APOTHAKER & ASSOCIATES, P.C. 2417 Welsh Road, Suite 21 #520 Philadelphia, PA 19114 (215) 634-8920 Attorneys for Plaintiff Kimberly F. Scian, Esquire Attorney ID #55140 COURT OF COMMON PLEAS OF FIA CARD SERVICES A/K/A BANK OF ) CUMBERLAND COUNTY AMERICA ) Plaintiff, ) VS. ) NO.: 08-101 ANDREW J KREIDER ) Civil Action Defendant. CERTIFICATION OF SERVICE I hereby certify that a true and correct copy of the foregoing Plaintiff's Motion for Summary Judgment, Brief in support thereof and Motion Court Cover Sheet was served by regular mail on defendant at the address listed below: ANDREW J KREIDER 3 PHEASANT CT MECHANICSBURG, PA 17055-4:37 Date: Dated: 3/4/2008 Our-'file No.: 126732 APOTHAKER & ASSOCIATES, P.C. 2417 Welsh Road, Suite 214520 Philadelphia, PA 19114 (215) 634-8920 Attorneys for Plaintiff Kimberly F. Scian, Esquire Attorney ID #55140 COURT OF COMMON PLEAS OF FIA CARD SERVICES A/K/A BANK OF ) CUMBERLAND COUNTY AMERICA ) Plaintiff, ) vs. ) NO.: 08-101 ANDREW J KREIDER ) Civil Action Defendant. PLAINTIFF'S BRIEF IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT Facts Plaintiff is a credit card company. Plaintiff extends credit for purchases made by customers who assent to a credit agreement. In the agreement, Plaintiff promises to extend a line of credit to the customer in consideration of the customer's promise to repay in full the outstanding balance due plus interest incurred. Defendant, ANDREW J KREIDER, entered into a credit agreement with the Plaintiff. Defendant purchased goods pursuant to the credit agreement. On January 04, 2007 the outstanding balance due and owing the Plaintiff was $9991.59 together with interest of $ 282.51. As Defendant has failed to make payments in accordance with the credit agreement on the outstanding balance, the Defendant has breached his contractual duty and is liable for the full amount due as well as reasonable attorney's fees as provided for in the credit agreement. Plaintiff filed a complaint on or about December 21, 2007. Defendant filed his answer on or about February 11, 2008 wherein he admits that he owes a debt to the plaintiff. As there exists no genuine issue of material fact to be decided, Plaintiff is entitled to a summary judgment. Argument Summary judgment for plaintiff is appropriate on the record before this court. Pennsylvania Rule of Civil Procedure 1035.2 states that a motion for summary judgment may only be granted when there is no genuine issue of material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report ........42 Pa. C.S.A. 1035.2(1). A material fact for motion on summary judgment, is one that directly effects the outcome of the case. Fortney v. Callenberger, 801 A. 2d 594, Super. 2002. Application of this rule has held that summary judgment may be granted only in those cases where the right to summary judgment is clear and free from doubt. Laich v. Bracey, 776 A. 2d 1022, Cmnwlth. 2001. A motion for summary judgment shall be granted if the documents of record show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035(b); Allen v. Merriweather, 413 Pa. Super. 410, 411, 605 A. 2d 424 (1992); Beasel v. New Blvd. Baking Co. Inc, 410 Pa. Super. 591, 593, 600 A.2d 610 (1991). Summary judgment may be entered prior to the completion of discovery in matters where additional discovery would not aid in the establishment of any material fact. Gatling v. EatonCorp., A. 2d, Super. 2002. The moving party bears the burden of demonstrating clearly that there is no genuine issue of triable fact. Driscoll v. Carpenters District Council of Western Pennsylvania, 370 Pa. Super. 295, 536 A. 2D 412 (1988); affirmed, 525 Pa. 205, 579 A. 2d 863 (1991); Allen, 413 Pa. Super. at 411; Beasel, 410 Pa. Super. at 594; Hower v. Whitmark Assoc, 371 Pa. Super 443, 381 A. 2d 524 (1988). In response, the nonmoving party may not rest upon the pleadings, but must set forth specific facts controverting the movant's case. Pa.R.C.P. 1035.3. Phaff v. Gerner, 451 Pa. 146, 303 A. 2d 826 (1973). A review of the pleadings as a whole in the instant case reveals that Defendant has failed to sustain their burden of presenting facts which contradict the elements of Plaintiff's claim. Conclusion The purpose of the summary judgment procedure is to prevent vexation and delay, improve the machinery of justice, promote the expeditious disposition of cases and avoid unnecessary trials when no genuine issue of material fact is raised. In making its determination, the Court must accept as true all properly pleaded facts, as well as all reasonable inferences which might be drawn therefrom. Thompson v Nason, 379 Pa. Super. 115, 535 A. 2d 1177 (1988), affirmed, 527 Pa. 330, 591 A. 2d 703 (1991). The Court must restrict its review to material filed in support of and in opposition to the motion for summary judgment, and to uncontroverted allegations in the pleadings. Pa.R.C.P.1035. Overly v. Kass, 382 Pa. Super. 108, 545 A 2d 970 (1989). Plaintiff submits that is has demonstrated sufficient facts to warrant summary judgment in its favor. Plaintiff has provided an affidavit that Defendant is in default and set forth the amount owed by defendant. Defendant admits in his answer that he has failed to make payments on the account. Therefore, plaintiff maintains that it has produced sufficient evidence to establish that there is no genuine issue of material fact to be decided. Once Plaintiff has satisfied its burden, Defendant has a responsibility to demonstrate facts which would create a genuine issue for trial. Phaff, supra. Defendant has failed to sustain his burden of presenting facts which would contradict the elements of Plaintiffs claim. WHEREFORE, Plaintiff respectfully requests that a judgment be entered in its favor for the amount due with interest and costs as prayed for in the Complaint. Dated: 3/4/2008 Respectfully submitted, Our File No.: 126732 APOTHAKER & ASSOCIATES, P.C. 2417 Welsh Road, Suite 214520 Philadelphia, PA 19114 (215) 634-8920 Attorneys for Plaintiff Kimberly F. Scian, Esquire Attorney ID #55140 FIA CARD SERVICES A/K/A BANK OF AMERICA Plaintiff, VS. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO.: 08-101 ANDREW J KREIDER Defendant. AND NOW, this day of 20 , upon consideration of Plaintiffs Motion for Summary Judgment and Brief in Support thereof, and upon consideration of the Response (if any) filed by Defendant, the Court determines that Plaintiff is entitled to Summary Judgment as a matter of law, and it is hereby: ORDERED and DECREED that judgment is entered in favor of Plaintiff and against Defendant, ANDREW J KREIDER, for $10,395.96. Civil Action ORDER BY THE COURT, J. N 0 C: C? { 17 f ? 7 , _ 3 =l :tit FIA CARD SERVICES A/K/A BANK OF AMERICA c/o Apothaker & Associates, P.C. 2417 Welsh Road, Suite 21 #520 Philadelphia, PA 19114 Plaintiff V. ANDREW J. KREIDER 3 Pheasant Court Mechanicsburg, PA 17055-4337 Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-101 CIVIL IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT BEFORE BAYLEY, J. AND EBERT, J. ORDER OF COURT AND NOW, this 14'h day of May, 2008, upon consideration of Plaintiff's Motion for Summary Judgment and after an examination of the Plaintiffs Complaint and the Defendant's Answer thereto, the Court finds that at this stage of the action a genuine issue of triable fact remains; Accordingly, IT IS HEREBY ORDERED AND DIRECTED that Plaintiff's Motion for Summary Judgment is DENIED. ZDavid J. Apothaker, Esquire Attorney for Plaintiff 2417 Welsh Road, Suite 21 #520 Philadelphia, PA 19114 ? Andrew J. Kreider, Defendant 3 Pheasant Court Mechanicsburg, PA 17055-4337 bas s;m Lrr L s/?y f o8 ?r??1 By the Court, 4I N r 117,, So :C Wd ? I Avw Baal A8VIQ Nudj. wd 3HI JO 90,1 4('i-031CJ Our File No.: 126732 c -1 APOTHAKER & ASSOCIATES, P.C. try '? ??? BY: Benjamin J. Cavallaro, Esquire -" Attorney I.D.# 307949 C"' _ 520 Fellowship Road C306 `'t" -c? ;.cam Mount Laurel, NJ 08054 2 5 4 1 (800) 672-0 Attorney for Plaintiff FIA CARD SERVICES A/K/A BANK OF AMERICA Plaintiff, vs. ANDREW J KREIDER Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 08-101 PRAECIPE TO DISMISS WITHOUT PREJUDICE TO THE PROTHONOTARY: Kindly dismiss this action without prejudice. APOTHAKER & ASSOCIATES, P.C. Attorneys for Plaintiff A Law Firm Engaged in Debt Collection By: Dated: September 8, 2010 enja i ?. Cavallaro, Esquire 111111111111111111111111111111111111111111111