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HomeMy WebLinkAbout08-0263Burton Neil & Associates, P.C. By: Yale D. Weinstein, Esquire ID. NO. 89678 1060 Andrew Drive, Suite 170 West Chester, PA 19380 (610) 696-2120 Attorney for Plaintiff CITIBANK (SOUTH DAKOTA), N.A. 701 East 60th Street N Sioux Falls, SD 57117 IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. DAVID S SHAFFER : NO. - a(p3 Civa-leroi 37 Nathan Drive, Enola PA 170252676 Defendant CIVIL ACTION -LAW Complaint - 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 (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 claim 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. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. LAWYER REFERENCE AND INFORMATION SERVICE Cumberland County Bar Assoc. 32 South Bedford Street Carlisle, PA 17013 Telephone No. 717-249-3166 or 800-990-9108 C-13327 Burton Neil & Associates, P.C. By: Yale D. Weinstein, Esquire ID. NO. 89678 1060 Andrew Drive, Suite 170 West Chester, PA 19380 (610) 696-2120 Attorney for Plaintiff CITIBANK (SOUTH DAKOTA), N.A. 701 East 60th Street N Sioux Falls, SD 57117 Plaintiff V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. OF- ?G 3 0. n- ?l DAVID S SHAFFER 37 Nathan Drive, Enola PA 170252676 Defendant CIVIL ACTION - LAW Complaint 1. Plaintiff is CITIBANK (SOUTH DAKOTA), N.A., with place of business located at 701 East 60th Street North, Sioux Falls, South Dakota. 2. Defendant is David S Shaffer, who resides at 37 Nathan Drive, Enola, Cumberland County, Pennsylvania. 3. Plaintiff is a national banking association, engaged in various types of banking business including consumer lending through the issuance of credit cards. 4. Plaintiff furnished consumer credit to the defendant by means of a credit card with account number 5424180589485405 hereinafter referred to as the credit card account. 5. Plaintiff kept accurate running records of all debits and credits to the account. 6. Plaintiff mailed to defendant monthly statements for the account including the billing statement attached hereto as Exhibit A. The monthly statements accurately stated the previous balance, the debits and credits to the account for the prior billing period. 7. Before plaintiff mailed Exhibit A, defendant had for many months made payments on account of the billing statement or retained the statement without payment. 8. Defendant's actions as set forth above constituted an account stated between parties for the sum of $6,933.66 which sum reflects the Exhibit A statement balance less credits, if any, which were applied subsequent to the date of Exhibit A. Wherefore, plaintiff demands judgment against defendant for the sum of $6,933.66, and the costs of this action. Burton Wil & AssbciatewP.C. By: . Yale for Plaintiff The law firm of Burton Neil & Associates, P.C. is a debt V V • a N ? 8 vi O J LCw ? 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Q E Y 7 n A O 1 - t ow U Oa1F N+'f ______- - anvinl pain a ----- _____ meted, rM OWI*w PeymrR Ywtruetleew en reverse mike etmea PePelle te:Cltl Cards /33Z / Total New Balance: Account Number. ?e9?1.66 54241805 8948 5405 Minimum Amount Due: Amount Enclosed- =956.65 Payment Due Date: =wad mutt be heelued u Sate PM 11/09/2607 bul IYM the yatmeM due e date. 000000 MC 36 A 0 DAVID 5 SHAFFER 37 NATHAN DR CITI CARDS ENOLA PA 17025-2676 P.O. BOX 182564 COLUMBUS, OH43218-2564 T ?XHIBI - -- ? I 38 ? OJ • a Q S hN COX _' X.3 ?xx S n V a! 0 k 0 at 0 SZ? z ll n n m ? to m M f K K O y< O O t1 o Q -c < V V v m of c O L ? ?f O Yt O Y N N tC P O O O O P aD O O c D D A S ? T e+ O ? V O O O r fV ? N n N u c0 o„ o. L ne ar w 00 L G K # O O V v V y +N An W ? EQ (/! Q yWU 9 0 7 u U ? Z ` ? ? N ! O s v 'n w ° o " '^ 5d O n K a Q O a N N 4 Verification NIP?9SF I?RO I, 1EN am an employee of Citicorp Credit Services, Inc., (USA) which is by contract the service provider for plaintiff CITIBANK (SOUTH DAKOTA), N.A. retained to perform services on its behalf. I am authorized to make this verification as attorney-in-fact for plaintiff under powers of attorney from plaintiff to Citicorp Credit Services, Inc. (USA) and to me. The foregoing averments of fact in the within pleading are true and correct to the best of my knowledge, information and belief. I understand that the statements made herein are subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to the authorities. ig e David S Shaffer 5424180589485405 iq* 141H., A I #!vtm( Cli ' r O ?A (r 1 _ C Court of Common Pleas Cumberland County, Pennsylvania CITIBANK (SOUTH DAKOTA), N.A. 701 East 601h Street Sioux Falls, SD 57117 Plaintiff Vs. Case Number 08-263 David S. Shaffer 37 Nathan Drive, Enola PA 170252676 Defendant Response to Summons I GENERALLY DENY THE AMOUNT OF DEBT. (Date t 11Z 1 0e) David S. Shaffer 1 r 37 Nathan Drive, Enola PA 170252676 I certify that a copy of this document has been delivered to the following recipient via U.S. Mail. Burton Neil & Associates, P.C. By: Yale D. Weinstein, Esquire ID. NO. 89678 1060 Andrew Drive, Suite 170 West Chester, PA 19380 (610) 696-2120 Attorney for Plaintiff D??- (Signature) V4eLl)avid S. Shaffer C"° ?"?' r;a _?7 ?. ?? ?w,} SHERIFF'S RETURN - REGULAR CASE NO: 2008-00263 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CITIBANK SOUTH DAKOTA NA VS SHAFFER DAVID S WILLIAM CLINE , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon the DEFENDANT , at 1613:00 HOURS, on the 18th day of January , 2008 at 37 NATHAN DRIVE ENOLA, PA 17025 by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 14.40 Affidavit .00 Surcharge 10.00 n 00 42.40 Sworn and Subscibed to before me this day of So Answers: R. Thomas Kline 01/22/2008 BURTON NEIL By. _ 2Z?4A?? Depu y "Sheri ff A. D. BURTON NEIL & ASSOCIATES, P.C. Yale D. Weinstein, Esquire Id. no. 89678 1060 Andrew Drive, Suite 170 West Chester, PA 19380 610-696-2120 Attorney for Plaintiff CITIBANK (SOUTH DAKOTA) N.A. Plaintiff V. DAVID S. SHAFFER IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 08-263 Civil Term Defendant : CIVIL ACTION - LAW Motion of Plaintiff for Judgment on the Pleadings Now comes plaintiff by its undersigned attorneys, and moves this Honorable Court pursuant to Pa R.C.P. 1034 for judgment on the pleadings against defendant in the sum of $6,933.66 and in support thereof states: 1. The pleadings consisting of complaint and answer are closed. 2. There is no genuine issue of material fact which will require a trial. Wherefore, plaintiff moves for judgment on the pleadings. Yale D In making this communication, we advise this firm is a de Associates, P.C. st ' , Esquire collector. t. BURTON NEIL & ASSOCIATES, P.C. Yale D. Weinstein, Esquire Id. no. 89678 1060 Andrew Drive, Suite 170 West Chester, PA 19380 610-696-2120 Attorney for Plaintiff CITIBANK (SOUTH DAKOTA) N.A. Plaintiff V. DAVID S. SHAFFER : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 08-263 Civil Term Defendant : CIVIL ACTION - LAW Plaintiffs Brief in Support of Motion for Judgment on the Pleadings 1. Facts and Procedural History Plaintiff filed a complaint against defendant to recover the balance past due on a credit card account in the sum of $6,933.66. Defendant filed an answer in which he generally denied the amount of the debt. The answer being a general denial had the effect of admitting the complaint's averments leaving no genuine issue of material fact which will require a trial. The pleadings in this action are closed. The matter is before the Court on plaintiff's motion for judgment on the pleadings under Pa. R.C.P. 1034(a). II. Question Presented Whether there exists a genuine issue of material fact which will require a trial? III. Argument Defendant's answer was not responsive to any of the averments of the complaint. Rather, it consisted of a single sentence in which defendant averred "I generally deny the amount of the debt." Pa.R.C.P. 1029(b) provides that "Averments in a pleading to which a responsive pleading is required are admitted when not denied specifically or by necessary implication. A general denial or a demand for proof, except as provided by subdivisions (c) and (e) of this rule, shall have the effect of an admission." (Emphasis added). Clearly, none of the complaint's allegations were denied specifically nor reading the answer as a whole was anything denied by necessary implication. Therefore, defendant admitted each allegation. It may have been defendant's intention' to respond only to the allegation which set forth the amount of the debt and admit all the other allegations. Whatever the intention, this was certainly the effect of the answer he filed. The denial as to the amount was not specific as required by Rule 1029(b). "Although no fixed rule can be stated for determining whether a denial is specific, generally for a denial to be specific, it must deny what is averred and then must affirmatively aver what did occur in place of the facts as averred." 5 Standard Pennsylvania Practice 2d Section 26:40 and the cases cited therein. Defendant failed to do so. Acme Cotton Products Co. v. Michael McDonough, Inc., 61 Pa. D. & C.2d 608 (1972); affirmed, per curiam, 225 Pa. Super. 701, 306 A.2d 351 (1973), the Court directed a verdict finding the answer was actually admissions under Pa. R.C. P. 1029(b): Nowhere in defendant's answer does he allege that the goods received did not 'Proceeding pro se does not entitle defendant to a more lenient application of the Rules of Civil Procedure nor free defendant from the risk of adverse consequences for failure to follow the rules. See Peters Creek Sanitary v. Welch, 545 Pa. 309, 681 A.2d 167, 170 (1996) ; Jones v. Rudenstein, 401 Pa. Super. 400, 585 A.2d 520 (1991) appeal denied, 529 Pa. 634, 600 A. 2d 954 (1991); Faretta v. California, 422 US 806, 834 n. 46, 955 S.Ct. 2525, 2540 n.46, 45 L.Ed.2d 562, 581 n 46 (1975) 4 ? e conform to the terms of the agreement. Neither does he even attempt to articulate any specific defect in the goods received; his answer amounts to bald statements that the goods were in a defective condition and unsaleable. As a consequence of this admitted `badly drafted Answer,' the allegations in the complaint are deemed admitted. See Pa. R. C. P. 1029(b). IV. Conclusion Defendant's admissions are binding. As stated in Packel & Poulin, Pennsylvania Evidence, 2d Ed., Section 127, p. 30: Evidentiary admissions are to be distinguished from judicial admissions. Judicial admissions are not evidence at all. Rather, they are formal concessions in the pleadings in the case or stipulations by a party or its counsel that have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact. Thus the judicial admission, unless allowed by the court to be withdrawn is conclusive in the case, whereas the evidentiary admission is not conclusive but is always subject to contradiction or explanation. (Emphasis added.) The defendant having effectively admitted all the allegations of the complaint, there is no genuine issue of material fact which will require a trial. Judgment on the pleadings should be entered under Pa. R.C.P. 1034(a) for plaintiff. Burton Neil & Associates, P.C. Yale D. Weinstein, Esquire In making this communication, we advise this firm is a deb/collector. Burton Neil & Associates, P.C. By: Yale D. Weinstein, Esquire ID. NO. 89678 1060 Andrew Drive, Suite 170 West Chester, PA 19380 610-696-2120 Attorney for Plaintiff CITIBANK (SOUTH DAKOTA), N.A. Plaintiff V. DAVID S SHAFFER Defendant IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 08-263 Civil Term : CIVIL ACTION -LAW Certificate of Service I, Yale D. Weinstein, Esquire do hereby certify that I served a true and correct copy of the within Motion for Judgment on the Pleadings, Praecipe for Listing Case for Argument, supporting Brief and proposed Order on pro se defendant, David S Shaffer at his/her address of record via first class mail, postage prepaid on the date set forth below. Burton Ne' & sociates, P.C. Date: By: Yale D. ein, Esquire Attome or Plaintiff The law firm of Burton Neil & Associates is a debt collector. C-13327 CITIBANK (SOUTH DAKOTA) N.A. IN THE COURT OF COMMON PLEAS Plaintiff V. DAVID S. SHAFFER CUMBERLAND COUNTY, PENNSYLVANIA : NO. 08-263 Civil Term Defendant : CIVIL ACTION - LAW ORDER AND NOW, this day of , 2008, plaintiff's motion for judgment on the pleadings is granted. It is hereby ORDERED that judgment be entered for plaintiff Citibank (South Dakota) N.A. and against defendant David S. Shaffer in the sum of $6,933.66 plus the costs of this action. By the Court: J. Yale D. Weinstein, Esquire Attorney for Plaintiff Burton Neil & Associates, P.C. 1060 Andrew Drive, Suite 170 West Chester, PA 19380 Davis S. Shaffer Pro Se Defendant 37 Nathan Drive Enola, PA 17025 n C? ? ? b -rt c ? '?' W f ' +w ? ? ` F ? -?, ? T _ .?.4. . . "'ri - 1 Praecipe for Listing Case for Argument (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CITIBANK (SOUTH DAKOTA), N.A. Plaintiff V. DAVID S SHAFFER Defendant NO. 08-263 Civil Term 1. State matter to be argued (i.e., plaintiff s motion for new trial, defendant's demurrer to complaint, etc.): Motion for Judgment on the Pleadings 2. Identify counsel who will argue case: (a) for plaintiff: Yale D. Weinstein, Esquire c/o Burton Neil & Associates, P.C. address: 1060 Andrew Drive, Suite 170, West Chester, PA 19380 b) for defendant: David S Shaffer, Pro Se address: 37 Nathan Drive Enola PA 17025-2676 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: April 16, 2008 4 Yale D. We t in, Vso Attorney fo h Plaintiff The law firm of Burton Neil & Associates is a debt collector. r, . 1 Praecipe for Listing Case for Argument (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CITIBANK (SOUTH DAKOTA), N.A. Plaintiff V. DAVID S SHAFFER Defendant NO. 08-263 Civil Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Motion for Judgment on the Pleadings 2. Identify counsel who will argue case: (a) for plaintiff: Yale D. Weinstein, Esquire c/o Burton Neil & Associates, P.C. address: 1060 Andrew Drive, Suite 170, West Chester, PA 19380 b) for defendant: David S Shaffer, Pro Se address: 37 Nathan Drive Enola PA 17025-2676 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: April 16, 2008 Yale D. We' ste , Es Attorney r the Plaintiff The law firm of Burton Neil & Associates is a debt collector. +?, r.' ?,°.. ?7- ,' ?' ' '*7 r?? .?.., r` .. -? ?z - rv `? m . ,.? ?? ? . CITIBANK (SOUTH DAKOTA), IN THE COURT OF COMMON PLEAS OF N.A., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW vs. NO. 08-263 CIVIL DAVID S. SHAFFER, Defendant IN RE: PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE HESS, OLER, AND GUIDO, J.J. ORDER AND NOW, this Z'' A day of April, 2008, for the reasons stated in the plaintiff's brief in support of its motion, the motion of the plaintiff for judgment on the pleadings is GRANTED. BY THE COURT, "o 1wel, Kev' A. Hess, J. ZYale D. Weinstein, Esquire For the Plaintiff David S. Shaffer 37 Nathan Drive Enola, PA 17025-2676 :rlm Ce> pt ES M-21 JE4 FILL), APR Burton Neil & Associates, P.C. By: Yale D. Weinstein, Esquire ID. NO. 89678 1060 Andrew Drive, Suite 170 West Chester, PA 19380 610-696-2120 Attorney for Plaintiff CITIBANK (SOUTH DAKOTA), N.A. Plaintiff v DAVID S SHAFFER Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-263 Civil Term CIVIL ACTION - LAW Praecipe for Entry of Judgment on Court Order To the Prothonotary: Enter judgment on behalfbf the plaintiff, CITIBANK (SOUTH DAKOTA), N.A., and against the defendant, DAVID S SHAFFER, as per the Court's Order dated April 21, 2008 and assess damages in the sum of $6,933.66. Neig&/Associates, P By. D. Weinstein, Esquire And now, this aq41- day of April I`, 2008 judgment is entered on behalf of the plaintiff, CITIBANK (SOUTH DAKOTA), N.A. and against the defendant, DAVID S SHAFFER, in the sum of $6,933.66. Prot onotary mberla County Deputy In making this communication, we advise that this office is a debt collector. CITIBANK (SOUTH DAKOTA), N.A., Plaintiff vs. DAVID S. SHAFFER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 08-263 CIVIL IN RE: PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE, HESS. OLER. AND GUIDO, J.J. ()R TIER AND NOW, this Zi day of April, 2008, for the reasons stated in the plaintiff's brief in support of its motion, the motion of the plaintiff for judgment on the pleadings is GRANTED. BY THE COURT, ?-- '4 144le, A. Hess, J. Yale D. Weinstein, Esquire For the Plaintiff David S. Shaffer 37 Nathan Drive Enola, PA 17025-2676 rlm U?ip . vY471 of said At ?` idol Burton Neil & Associates, P.C. By: Yale D. Weinstein, Esquire ID. NO. 89678 1060 Andrew Drive, Suite 170 West Chester, PA 19380 610-696-2120 Attorney for Plaintiff CITIBANK (SOUTH DAKOTA), N.A. 701 East 60th Street N Sioux Falls, SD 57117 Plaintiff V. DAVID S SHAF'FER 37 Nathan Drive Enola PA 17025-2676 Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-263 Civil Term CIVIL ACTION - LAW Certification of Address and Affidavit of Non-Military Understanding that false statements herein are subject to penalty under 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities, I verify that: 1. The above are the precise last-known addresses of the judgment creditor and debtor. 2. Pursuant to Section 201(b)(1)(A) of the Servicemembers Civil Relief Act of 2003 (SCRA) the defendant is not in the military service of the United States based on information received from the defendant and/or the Department of Defense website. Neil 4-, Wociates, P.C. By: Yale D. einstein, Esquire Attorn for Plaintiff In making this communication, we advise that this office is a debt collector. y? -69 C 9 0°` ? 'J p w d U 6 p p a Burton Neil & Associates, P.C. By: Yale D. Weinstein, Esquire ID. NO. 89678 1060 Andrew Drive, Suite 170 West Chester, PA 19380 610-696-2120 Attorney for Plaintiff CITIBANK (SOUTH DAKOTA), N.A. IN THE COURT OF COMMON PLEAS V. DAVID S SHAFFER Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-263 Civil Term Defendant : CIVIL ACTION - LAW Rule of Civil Procedure No. 236 (Revised) Notice is given that a JUDGMENT in the above captioned matter has been entered against you on_ a 0 Prothonotary o berla County Deputy If you have any questions concerning the above, please contact: Yale D. Weinstein, Esquire Attorney for Party Filing 1060 Andrew Drive, Suite 170 West Chester, PA 19380 Phone: 610-696-2120 In making this communication, we advise that this office is a debt collector.