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HomeMy WebLinkAbout03-65343094L~ In the Court of Common Pleas of CUMBERLAND County, Pennsylvania UGI utilities Inc. Plaintiff vs Black Dog Motorcycle LLC. Defendant Civil Action - In Law t ARBITRATION 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 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 EARNED T~LAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED EITHOLrF you and a judgment may be entered against you by 5he 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 ~LAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND O~£ WHERE YOU CA~ GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013-3387 (717) 249-3166/(800) 990-9108 In the Court of Common Pleas of Cumberland County, Pennsylvania UGI Utilities Inc. Plaintiff vs. Black Dog Motorcycle, Defendants LLC. Civil Action - In Law No. O3- &~.~¥ ~ T~-_ COMPLAINT 1. This is an action by plaintiff, UGI Utilities Inc., to recover damages from defendant arising out of a debt defendant owes to plaintiff by virtue of appliance service. 2. UGI Utilities Inc. is a Pennsylvania corporation duly organized and existing and licensed to do business as a public utility under the laws of the Commonwealth of Pennsylvania with a principal place of business at 225 Morgantown Road, Reading, PA 19612. 3. Defendant, Black Dog Motorcycle, LLC., is a Pennsylvania Corporation doing business at 401 South Front Street, Wormleysburg, PA 17043. COUNT 1 UGI Utilities Inco vs. Black Dog Motorcycle, LLC. 4. At all times relevant hereto, plaintiff was engaged in the business of producing, furnishing, supplying and distributing utility service and selling appliances to persons and businesses who requested utility service and appliances in accordance with the Rate Schedules and General Rules and Regulations of Plaintiff's Tariff presently on file with the Public Utility Commission. 5, On or about November 19,2002, plaintiff sold a air conditioner to Black Dog Motorcycle, LLC. The cost of the appliance was $2,457.00. 6. Attached as Exhibit A are copies of the purchase contracts. 7. The appliances provided by the plaintiff to the defendants aforesaid, were received, accepted, and utilized for the benefit of said defendant. 8. Defendant is in default of her obligation, having failed to make the payments as they became due. 9. Plaintiff made demand on defendant to repay the sums then due and owing to plaintiff, but defendant has refused and continues to refuse to pay plaintiff. 10. Despite demands upon defendant for payment by the plaintiff, defendant has failed and refused to pay plaintiff balance due and owing on said account(s). the 11. Defendant has been unjustly enriched by accepting and using the appliances without full payment. WHEREFORE, there is now due and owing from the defendant to the plaintiff the following sums for which plaintiff demands judgment against the defendant: Amount Past Due: $3,153.90 TOTAL $3,153.90 DATED: December 16, 2003 Respectfully submitted, Krzywicki and Associates By: ~/~ywicki '--~15-862-4390 Attorney for Plaintiff Attorney I.D. 23754 VERIFICATION I, Marge Kline, an employee of UGI Utilities, Inc., being authorized to do so, verify that the statements made in the foregoing pleadings are true and correct to the best of my knowledge, information and belief. To the extent any averments therein are inconsistent in fact, I have been unable, after reasonable investigation, to ascertain which are true, but I have knowledge or information sufficient to form a belief that one of them is true. This statement is made subject to the penalties of 18 P.A.C.S. Section 4904, relating to answorn falsification to authorities. UGI Utilities, Inc. Dated: Marge Klin~/ UTiLiTIES, INC. HOME IMPROVEMENT INSTALLMENT CONTRACT DEL ONLY ~ PICK-UP ~EOITOR (called Selle~ or NAME AND ADDRESS: UGI UTILITIES, INC. DISCLOSURE OF YOUR CREDIT COSTS , SALES . O.OE, 019 G BUYER refers to all persons signing this Contract as 9uye~ (called You, Your ANNUAL FINANCE Amount PERCENTAGE CHARGE Finan~:e~ RATE The do;lar The arcaunt of crcda The cost of amoun! the )rovided iii you or % $. Total of Payments Total Sale Pri=e SECURITY: You are giving a security inlerest in t'~e g~x:)ds you are purchaemg I.AT~ CHARGE: It we receive your payment 10 (lays ~r more atter ihe date it is due, we will charge you the lesser of 5% of the P3yment or $5.O~, PREPAYMENT: ff you [>ay elf eady, you ritzy be ,~nli:led to :~ relund of par( of the finance charge See the olher provisions of your Retail Installment Contract far additiona~ information abou~ non-payrnenl, default, any required repayments in full before the schedJled date, and prepayment refunds· ITEMIZATION OF AMOUNT FINANCED OF (A) $ '~'~ 'TAppl Price Receipt Amount $ fl) Less Allow Date $/~77- ¢,' Add D & ~ (B) $~ '~'{3'~ Net Cash Price Rec'd by $ --Less: (2) Cash Down Payment (3) Trade-In (C) $ Tolal Down Payment (2 + 3) (D) $ -- -~U~paid Balance of Cash Price lB miRUS C) Other Charges: (E)$ Bales Tax (F) $ ¢ Permit Fees (G)$ Amount Paid to Insurance Co (H) $ - Unpaid Balance (amount financed) E means an estimate We estimate fhe paym.~nt due dales as your first payment will be due 30 days after delivery or installatioe of the goods and you must make all other paymenls on the same day of each month thereafter CONTRACT COVERAG~4 We sell and you buy the following MFQ ~// /~' ¢ ~ I (K) $ -- PROMISE TO PAY: You promise to eay lhe Tolal ,)f Pa5 lents according to your payment schedule show~ above (D+E ~-F ~G) Finance Charge · Time Balance (Total et Payments) (H+~ Time Sale Price(Total Sale Price) ADDITmONAL TERMS AND CONDITIONS OF THIS HOME IMPROVEMENT CONTRACT ARE ON THE BACK. ¢~f'J'~-C,'~¢~ ..~,~ / ~20~'~ ~,)c., ~ NOTICE TO BUYER: (1) DO NOT SIGN ~IS CONTRACT BEFORE YOU READ IT, {2) YOU ARE EN~T~O TO A COMP~LY FIL~O-IN COPY OF ~lS CON~ACT. (3) UNDER ~E LAW YOU HAVE THE ~IGHT TO PAY OFF IN ADVANCE ~E FULL AMOUNT DUE AND UNDER CERT~N CoNDmoNs TO O~AIN A PAn,AL REFUND OF ~E FINANCE CHARGE. (4} YOU MAY RESCIND ~IS CON~ACT SUBJECT TO LIA~IUTY FOR ANY LIQUIDA~D DAMAGE PROVISION ~EREOF AU~ORIZED BY LAW NOT LATER ~AN FIVE P.M ON ~E BUSINESS DAY FOLLOWING ~E DA~ THEREOF BY GIVING WRI~EN NO,CE OF RESCISSION TO ~E CON~A~OR AT HIS pLACE OF BUSINESS GIVEN IN ~E CON~ACT BUT. IF YOU RESCIND AFaR FIVE P.M. ON ~E BUSINESS DAY FO~OWING. YOU ARE S~LL EN~ED TO OFFER DEFENSES iN MeGAtON OF DAMAGES AND TO PURSUE ANY RIGHTS OF Ad,ON OR DEFENSES ~AT ARISE OUT OF ~E ~ANSAC~ON. YOU CONRRM RECEIVING A COMPLE~D COPY OF THIS CONTRACT WI~ DISCLOSURES OF YOUR CREDIT COSTS. rF THIS 80X IS CHECKED, ~EN YOU, ~E BUYER, MAY CANCEL ~IS ~ANSACTION AT ANY 3ME PRIOR TO MIDNIGHT OF ~E ~IRO BUSINESS DAY AFaR ~E DA~ OF ~IS ~ANSAC~ON.~EE ~E ATONED NO,CE ~F CANCELLA~ON~AN EXPLANA~ON OF ~IS RIGHT, · SHERIFF'S RETURN CASE NO: 2003-06534 P COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND UGI UTILITIES INC VS BLACK DOG MOTORCYCLE LLC - REGULAR BRYAlq WARD Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to says, the within COMPLAINT & NOTICE was served upon BLACK DOG MOTORCYCLE LLC DEFENDANT , at 1217:00 HOURS, at 401 SOUTH FRONT STREET WORMLEYSBURG, PA 17043 MIKE BOWERS, OWNER, a the on the 26th day of December by handing ADULT IN CHARGE true and attested copy of COMPLAINT & NOTICE to together with law, 2003 and at the same time directing His attention to the contents thereof. Sheriff's Costs: So Answers: Docketing 18.00 Service 11.04 Affidavit .00 Surcharge 10.00 R. Thomas Kline .00 39.04 12/29/2003 KRZYWICKI & ASSOC Sworn and Subscribed to before By:,~_~ j> ~ J~_~ me this /~ day of DeWEy Sheriff hon~tary UGI UTILITIES, INC., Plaintiff BLACK DOG MOTORCYCLE LLC., Defendant 1N THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-6534 CIVIL TERM CIVIL ACTION - LAW : ARBITRATION ANSWER The Answer of Black Dog Motorcycle, LLC, by and through its counsel, Cunningham & Chemicoff, P.C., to the Complaint filed by UGI Utilities, Inc. is as follows: 1. Denied as stated. Defendant specifically denies .awing Plaintiff any debt for any purpose as alleged in Paragraph I and strict proof thereof is demanded, if relevant, at time of trial. Defendant further denies the implication contained in Paragraph 1 that Plaintiff is entitled to "recover damages from defendant" for any purpose whatsoever and strict proof thereof is demanded, if relevant, at time of trial. 2. Admitted. 3. Admitted. COUNT 1 UGI Utilities, Inc. vs. Black Dog Motorcycle, LLC. 4. After reasonable investigation, Defendant is without knowledge or information sufficient to admit or deny the averments contained in Paragraph 4 and strict proof thereof is demanded, if relevant, at time of trial. 5. Denied. Defendant specifically denies purchasing an air conditioner on November 19, 2002, from Plaintiff as alleged in Paragraph 5. To the contrary, Defendant has never purchased an air conditioner from Plaintiff as alleged in Paragraph 5. 6. Admitted in part; denied in part. Defendant acknowledges the existence of the document attached as Exhibit A to the Complaint. As to the legal effect of such document, such represents a conclusion of law to which no response is required and such averments are therefore denied. 7. Denied. Defendant denies receiving an air conditioner from the Plaintiff at any time as alleged in Paragraph 7 of the Complaint and strict proof thereof is demanded, if relevant, at time of trial. As further answer, Defendant specifically denies the assertion that Plaintiff 2 provided an air conditioner to Defendant or that Defendant received, accepted and utilized same for its benefit. Strict proof of these averments is demanded, if:relevant, at time of trial. 8. Denied. Defendant denies the assertion that it is obligated to Plaintiff in any amount regarding the purchase of an air conditioner as alleged throughout the Complaint and strict proof thereof is demanded, if relevant, at time of trial. As: set forth above, Defendant specifically denies purchasing or receiving an air conditioner from Plaintiff. 9. Denied as stated. Defendant specifically denies owing Plaintiffany sum in connection with the alleged sale and purchase of an air conditioner. As set forth above, Defendant specifically denies purchasing an air conditioner from Plaintiff or receiving an air conditioner from Plaintiff at any time. Strict proof thereof is demanded, if relevant, at time of trial. As further answer, Defendant has repeatedly advised Plaintiff that its attempt to collect any sum from Defendant regarding the alleged sale of an air conditioner is in error. Notwithstanding these numerous attempts to advise Plaintiff that it is in error, Plaintiff has refused to cease its wrongful attempt to collect in this matter. 10. Defendant specifically denies owing Plaintiff any sum in connection with the purchase and sale of an air conditioner. Strict proof thereof is demanded, if relevant, at time of trial. 11. Denied. Defendant specifically denies ever having received or accepted an air conditioner from Plaintiff and strict proof thereof is demanded, if relevant, at time of trial. As further answer, Defendant has repeatedly advised Plaintiff that its attempt to collect in this matter is in error and Plaintiff has refused to cease its wrongful collection activity. WHEREFORE, Defendant Black Dog Motomycle, LLC, respectfully requests that this Court enter an Order denying the relief requested in Plaintiff's Complaint and further awarding Defendant all such other relief as is proper and just. NEW MATTER 12. Defendant herein incorporates each and every averment above as if more fully set forth. 13. The contract attached as Exhibit "A" to Plaintiff's Complaint is unenforceable against the Defendant because the goods in question were never delivered by Plaintiff or received by Defendant. Accordingly, Defendant assets the defense of failure of consideration. 4 14. Plaintiff has been repeatedly advised that Defendant never received the air conditioner referenced in Plaintiff's Complaint. Despite numerous requests by the Defendant, Plaintiff has failed to cease its wrongful collection activity against the Defendant in this matter. 15. Defendant has incurred counsel fees and other costs in connection with defending this law suit which has no basis due to failure of consideration. 16. Accordingly, the Plaintiff knew, or should have 'known, that this law suit is without merit. Notwithstanding this knowledge, Plaintiff has improperly elected to proceed with the filing of its baseless claim. 17. For all of the foregoing reasons, the Defendant is entitled to reasonable attorney's fees and costs in connection with the preparation of this Answer and defense of this baseless claim. WHEREFORE, Defendant, Black Dog Motorcycle, LLC, respectfully requests that this Court enter an Order dismissing the Complaint flied by UGI Utilities, Inc. with prejudice; awarding the Defendant reasonable attorney's fees and costs in connection with this matter; and providing the Defendant with all such other relief as is proper and just. 1/22/04 Respectfully Submitted, CUNNINGHAM & CHERNICOFF, P.C. Henry WOVan Eck, Esquire 2320 North Second Street P.O. Box 60457 Harrisburg, PA 17110 (717) 238-6570 6 VERIFICA~TION I, T. Michael Bowers, President of Black Dog Motorcycle, LLC, verify that the statements made in the foregoing Answer are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein made are subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsification to authorities. Date: CERTIFICATE OF SERVICE I, Melanie L. Kirk, Legal Secretary with Cunningham & Chemicoff, P.C., do hereby certify that a true and correct copy of the Answer was placed in the United States Mail, first class delivery, postage prepaid in Harrisburg, Pennsylvania on this date on the following: Anthony p. Krzywicki, Esquire KRZYWICKI and ASSOCIATES 49 N. Sugan Road P.O. Box 505 New Hope, PA 18938 Respectfully submitted, CUNNINGHAM & CHERNICOFF, P.C. Date: MelanieL. Kirk KRZYWICKI & ASSOCIATES Anthony P. Krzywicki Identification #23754 P.O. Box 505 New Hope, PA 18938 (215) 862-4390 UGI Utilities Inc. Plaintiff VS. Black Dog Motorcycle LLC Defendant Court of Common Pleas Cumberland County Civil Action No. 03-6534 _PLAINTIFF'S ANSWER TO DEFENDANT'S NEW MATTER 12. Paragraphs 1 through 11 are incorporated as referenced as if fully set forth herein. 13. Denied as a conclusion of law to which no answer is deemed required. 14. Denied. Plaintiff is without sufficient information to form a belief as to the troth of the averment and strict proof at trial is demanded. 15. Denied. Plaintiff is without sufficient information to form a belief as to the truth of the averment and strict proof at trial is demanded. 16. Denied as a conclusion of law to which no answer is deemed required. 17. Denied as a conclusion of law to which no answer is deemed required. WHEREFORE, Plaintiff prays that this Honorable Court enter judgment against Defendant and in favor of Plaintiff with costs. Dated: January 30, 2004 BY: ~~cki, Esq. yy for Plain[i,,~,~_ VERIFICATION I, Jeff Graeff, an employee of UGI Utilities, Inc., being authorized to do so, verify that the statements made in the foregoing pleadings are true and correct to the best of my knowledge, information and belief. To the extent any averments therein are inconsistent in fact, I have been unable, after reasonable investigation, to ascertain which are true, but I have knowledge or information sufficient to form a belief that one of them is true. This statement is made subject to the penalties of 18 P.A.C.S. Section 4904, relating to unsworn falsification to authorities. Dated: [/~>//Or IN THE COURT OF COMMON PLEAS OF CL~[BE~LAND COUNTY, PENNSYLVANIA NO. 0-"~6534 CIVIL 19 RUL~ 1312~1, The Pe:!:iou for Agpoincmen= of Arbitra:ors shall in =he foilowinE form: PETT-T!OM FOR A~PO[N~I~MT OF ARBITRATOR;i TO THE HONORABLE, THE JUDGES OF SAID COURT: :he above action (or aczlous), resoeccfullv represents :hat: 1. l~e above-capCioued acc~ou (Or aczions) [s (are} a= ~ssue. 2. The claim of :he plaln~iff in ~he action is $ 3,153.90 ~le coun~erclaw._u- of ~he defendan~ in :he ac:ion is $00.00 The followinE acrorue.vs ara iaterescad in :he case(s) as counsel or are ocher- wise disqualified co si~ as arbitracors: ~qthcny p. Krz~icki (Plair~f) Kelly ~L Knight (Def~lJnt) ~d~RJ~FOR~, your Pec!:ioner prays your Honorable Cour= co appoint :brae arbi=ra:ors to whom ~he case shall be submitted. Respeozfully submit:ad, .qRDER OF COURT NOW, /M~ , ~9 ir,~ co~idara:io~ of ,Esq., are appoia~ed arbic:a:~rs By the C~~ Plaintiff Defendant In The Court of Common Pleas of Cumberland County, Pennsylvania No. ~_~- ~"~-~ Civil Action - Law. Oath We do solemnly swear (or affirm) that we will support, obey and defend the Constitution of the Un/ted States and the Constitution oft/tis Commonwealth and that we w/ll discharge the duties of our office Name (ChaEnmn) Law Firm Address City, Zip Signature Name Name Law Firm Address Address CiW, Zip Zip Date of Hearing: Date of Award: Award We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following award: / ~'~,ote:/f damages f~r delay are award~e.d, they~3~ll be sgpgrgtely stated.) · Arbitrator, dissents. (Insert name~ apl~c_ ab~) o Award Notice of Entry Now, the b ~ day of ~ , 20~9 zff , at c;~.'05' , 7° .M., the above award was entered upon the docket and notice thereof given by mail to the parties or their attorneys. Arbitrators' compensation to be paid upon appeal: 8~/~~othonotary By: Deputy KRZYWICKI & ASSOCIATES Anthony P. Krzywicki, Esquire John L. Shearburn, Esquire P.O. Box 505 New Hope, PA 18938 (215)862-4390 Attorney for Plaintiff Attorney I.D. 23754/26852 UGI Utilities Inc. Plaintiff VS. Black Dog Motorcycle LLC Defendant Court of Common Pleas Cumberland County Civil Action No. 03-6534 PRAECIPE TO SETTLE, DISCONTINUE AND END TO THE PROTHONOTARY: Kindly mark this matter settled, discontinued, and ended, for the defendants upon payment of your costs only. DATED: December 17, 2004 BY: KRZYWI CK~ ASSOCIATES An ho/~y/p ._/rz/~ ~cki A~t orney~or Plaintiff