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HomeMy WebLinkAbout08-5345IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW MARK AINSLEY Plaintiff vs. FERNANDO A. AMARAL and MECUM AUCTIONS, INC. Defendants CASE NO. 09 - 5345 civi t -car" NOTICE TO DEFEND AND CLAIM RIGHTS 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, PA 17013 Telephone: 1-800-990-910 717-249-3166 BY O Original ( ) Certified I hereby certify that the within is a true and correct copy of the original Complaint filed in this case. SERVE ALL PAPERS ON: Deborah L. Smith Guarnieri & Secrest, P.L.L. 151 East Market St., P.O. Box 4270 Warren, Ohio 44482 (330) 393-1584 Deborah L. Smith Attorney for Plaintiff Deborah L. Smith Pa. I. D. #77702 IN THE COURT OF COMMONPLEAS OF CUMBERLAND COUNTY, PENNSYLVANL4 CIVIL ACTION - LA W MARK AINSLEY Plaintiff vs. FERNANDO A. AMARAL and MECUM AUCTIONS, INC. Defendants COMPLAINT No. AND NOW, comes the Plaintiff, Mark Ainsley, by and through his legal counsel, Deborah L. Smith, and Guarnieri & Secrest, P.L.L., and for his Complaint, sets forth the following: 1. The Plaintiff, Mark Ainsley, is an adult individual presently residing at 3148 Sodom Hutchings Road, Fowler, Ohio 44418. 2. The Defendant, Fernando A. Amaral, is an adult individual presently residing at 6 Cadman Court, Etobicoke, Ontario M9A457. 3. The Defendant, Mecum Auctions, Inc., is a corporation generally engaged in the business of auctioning located in Carlisle, Pennsylvania. First Claim (Breach of Warranty - Damages) 4. Paragraphs 1-3 are herein incorporated by reference. 5. In 8/05, at Defendant, Mecum Auctions, Inc.'s auction in Carlisle, Pennsylvania, Plaintiff purchased Defendant, Fernando A. Amaral's ("Amaral") 1967 Chevrolet Corvette GUARNIERI AND SECREST, P.L.L. ATTORNEYS AT LAW 151 E. MARKET STREET P.O. BOX 4270 WARREN, OHIO 44482 automobile for the sum of $68,000. 6. At the time of sale, Defendants impliedly warranted that the automobile's frame conformed to state law. 7. In fact, the frame's vehicle identification number was "removed, defaced, covered, altered or destroyed" within the meaning of R.C. §4549.62(D) and, as such, has been seized by the Ohio State Highway Patrol for forfeiture to the State of Ohio. 8. As a direct and consequential result of Defendants' stated breach of warranty, Plaintiff has been damaged in the sum of $24,085.69. WHEREFORE, on his First Claim, Plaintiff demands judgment against the Defendants, jointly and severally, in the sum of $24,085.69. Plaintiff further demands interest as provided by law, together with recovery of the costs of this action. Second Claim (Breach of Contract - Rescission) 9. Paragraphs 1-7 are incorporated by reference. 10. The automobile's conformity with state law was a material term of the parties' sale transaction. 11. As such, Plaintiff hereby rescinds the transaction; tenders the automobile back to Amaral; and seeks return to the staus quoante, i.e., recovery of the $68,000 purchase price. WHEREFORE, on his Second Claim, Plaintiff demands judgment against Defendant Amaral for rescission of the parties' sale transaction, and the return of his $68,000 purchase price. Plaintiff further demands interest as provided by law, together with recovery of the costs of this action. Respectfully submitted, GUARNIERI & SECREST, P.L.L. r Deborah L. Smith 151 E. Market St. P.O. Box 4270 Warren, OH 44482 Tel: (330)393-1584 Fax: (330)395-3831 Attorney for Plaintiff IN THE COURT OF COMMONPLEAS OF CUMBERLAND COUNTY, PENNSYLVANL4 CIVIL ACTION - LA W MARK AINSLEY Plaintiff VS. FERNANDO A. AMARAL and MECUM AUCTIONS, INC. Defendants No. VERIFICATION I, MARK AINSLEY, verify that the statements made in this Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. DATE: August , 2008 RK A SL Y L)i CD -, E_e IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW MARK AINSLEY CASE NO. 2008-05345 Plaintiff vs. FERNANDO A. AMARAL, et al Defendants PLAINTIFF'S MOTION FOR PARTIAL DISCONTINUATION OF ACTION AGAINST A DEFENDANT And now comes the Plaintiff, MARK AINSLEY, by and through his legal counsel, and pursuant to Pa. R.C.P. No. 229(b)(1) hereby requests leave of this Court to discontinue the action against the Defendant, MECUM AUCTIONS, INC., only. For cause, Plaintiff states that he is now aware of the existence of certain contract documents that substantially impair his claim against Defendant, MECUM AUCTIONS, INC. Plaintiff requests that the action be discontinued against Defendant, MECUM AUCTIONS, INC., without prejudice. Plaintiff submits that no Judge has ruled upon any other issue in the within matter. Plaintiff further submits, as shown by the attached Certificate of Service, the copy of the within Motion and proposed Order has been served upon the Defendant, FERNANDO A. AMARAL and also upon the Defendant, MECUM AUCTIONS, INC., through its legal counsel, Jack D. Franks, and that Attorney Jack D. Franks, concurs in said discontinuance of the claim against, MECUM AUCTIONS, INC. Respectfully submitted, GUARNIERI A SECREST P.L.L. DEBORAH L. SMITH (#77702) 151 E. Market Street P.O. Box 4270 Warren, OH 44482 Tel: (330) 393-1584 FAX: (330) 395-3831 Attorney for Plaintiff CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing Motion & Order were mailed by U.S. Ordinary mail to the Defendant, FERNANDO A. AMARAL, 6 Cadman Court, Etobicoke, Ontario M9A457 and to Jack D. Franks of Franks, Derkin & McKenna, 1933 E. Grant Highway, P.O. Box 5, Marengo, IL 60162, Attorney for MECUM AUCTIONS, INC., on this day of December, 2008. DEBORAH L. SMITH (#77702) Attorney for Plaintiff C7 r-.w ?t r?irr ? 1 - IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW MARK AINSLEY ) CASE NO. 08-5345 Plaintiff ) vs. ) FERNANDO A. AMARAL, ET AL. ) Defendants ) AFFIDAVIT OF PERSONAL SERVICE rR.GVtNc:G STATE OF btiTA21O ) C IT Y j SS: 4QW1JW+ f OF Tv2- ©1j -,<) THE UNDERSIGNED 45; e or. 6,>` HA L L / , BEING SWORN ACCORDING TO LAW STATE THAT: (1) 1 AM AN ADULT INDIVIDUAL OVER THE AGE OF EIGHTEEN YEARS, AND I AM NEITHER A PARTY TO THE ABOVE ACTION NOR AN EMPLOYEE OR A RELATIVE OF A PARTY TO THE ABOVE ACTION. (2) ON THE T 7 " DAY OF N J 2. ` 43 '4T 6. O'CLOCK P.M., I SERVED THE COMPLAINT AND NOTICE TO DEFEND IN THIS ACTION ON THE DEFENDANT FERNANDO A. AMARAL , IN THE FOLLOWING MANNER: (SELECT ONE) (X) BY HANDING IT TO THE DEFENDANT/Pb4WtTtPF PERSONALLY; ( ) BY HANDING IT TO (Name, Relation) PERSON RESIDING AT THE DEFENDANT'S RESIDENCE; ( ) BY HANDING IT TO THE (Person Served at Business) AN ADULT (Title) AT THE OFFICE OR USUAL PLACE OF BUSINESS OF THE DEFENDANT. ..?? 2 Sworn to before me and subscribed in my presence this -L day of /1??J??' ??'?, 2008. ?LL NOTARY PUBLIC C ? (Af O 019 0 8 21DO36i IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW MARK AINSLEY Plaintiff VS. FERNANDO A. AMARAL and MECUM AUCTIONS, INC. Defendants ORDER No. 2008-05345 AND NOW, this day of hf 200 , this matter having come before the Court upon the Motion of the Plaintiff for a discontinuance as against the Defendant, MECUM AUCTIONS, INC., and the Plaintiff having served a copy of said Motion upon both Defendants, Plaintiff's request is hereby granted. The Prothonotary shall mark this matter as discontinued with respect to the Defendant, MECUM AUCTIONS, INC. Said discontinuance to be without prejudice. BY THE COURT: Date: J J G E r" vf e u ' ?'u--,fs -g -el i r+ 9 , ltd 6 3?Q jgDZ A6VI IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW MARK AINSLEY Plaintiff VS. FERNANDO A. AMARAL Defendant CASE NO. 2008-05345 PRAECIPE TO ENTER JUDGMENT BY DEFAULT TO THE PROTHONOTARY: The Plaintiff, MARK AINSLEY, hereby requests the entry of judgment against the Defendant upon the Plaintiff's Complaint by default. More than twenty (20) days have elapsed since the filing and service of the Plaintiff's Complaint upon the Defendant which was filed September 8, 2008, and personally served upon the Defendant as shown by the attached Affidavit of Personal Service on November 17, 2008. Further, undersigned counsel hereby certifies that written notice of intent to file the within Praecipe was mailed by regular U.S. Mail on the 30th day of December, 2008, to the Defendant, Fernando A. Amaral, 6 Cadman Court, Etobicoke, Ontario M9A457. A copy of said notice and U.S. Postal Service Certificate of Mailing is attached hereto. WHEREFORE, Plaintiff requests the Prothonotary proceed to enter judgment against the Defendant by default and enter judgment against the Defendant in the sum $24,085.69 for damages as prayed for in the First Claim of the Plaintiff's Complaint plus interest from the date of judgment and court costs. Respectfully submitted, DEBORAH L. SMITH PA I.D. No. 77702 Guarnieri & Secrest, P.L.L. 151 E. Market Street, P.O. Box 4270 Warren, OH 44482 Phone: (330) 393-1584 FAX: (330) 395-3831 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW MARK AINSLEY ) CASE NO. 08-5345 Plaintiff ) Vs. ) FERNANDO A. AMARAL, ET AL. ) Defendants ) V AFFIDAVIT OF PERSONAL SERVICE ? FR,O V I N c' c i f ffEOF c> nlTAf2.1 0 = t SS: C 1 T40104 'tF OF -T-y2. ©N To ? a ; 1, THE UNDERSIGNED e=-e U2 CmG MALL 1 A , BEING SWOF94 3C ACCORDING TO LAW STATE THAT: (1) 1 AM AN ADULT INDIVIDUAL OVER THE AGE OF EIGHTEEN YEARS, AND I AM NEITHER A PARTY TO THE ABOVE ACTION NOR AN EMPLOYEE OR A RELATIVE OF A PARTY TO THE ABOVE ACTION. (2) ON THE I I - " DAY OF f? 0 VCMOXEZ 2-0??AT tv O'CLOCK -M., I SERVED THE COMPLAINT AND NOTICE TO DEFEND IN THIS ACTION ON THE DEFENDANT FERNANDO A. AMARAL , IN THE FOLLOWING MANNER: (SELECT ONE) (?C) BY HANDING IT TO THE DEFENDANT/PbWfrIFF PERSONALLY; ( ) BY HANDING IT TO - AN ADULT (Name, Relation) PERSON RESIDING AT THE DEFENDANT'S RESIDENCE; ( ) BY HANDING IT TO THE (Person Served at Business) (Title) AT THE OFFICE OR USUAL PLACE OF BUSINESS OF THE DEFENDANT. Sworn to before me and subscribed in my presence this da of A/0 2008. NOTARY PUBLIC GUARNwm & SECREST, P.L.L. ATTORNEYS AT LAW 151 EAST MARKET STREET • P.O. BOX 4270 WARREN, OHIO 44482 (330) 393-1584 FAX (330) 395-3831 ANTHONY G. ROSSI CO., L.P.A. gxnsbnv@netdotcom.com LEWIS L GUARNIERI RANDIL J. RUDLOFF CO., L.P.A. MICHAEL D. ROSSI ANTHONY G. ROSSI III DEBORAH L. SMITH (Also admitted to Practice in Pennsylvania) JOHN M. ROSSI December 30, 2008 Fernando A. Amaral 6 Cadman Court Etobicoke, Ontario M9A457 In re: Mark Ainsley v. Fernando Amaral and Mecum Auctions. Inc. Dear Mr. Amaral: (1896-1976) GEORGE W. SECREST (1894.1959) PAUL A. GUARNIERI (1912-1992) Enclosed please find a copy of Notice of Intention to File Praecipe to Enter Judgment By Default. Very trul yours, DEBO H L. SMIT DLS:sl Encl. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW MARK AINSLEY ) CASE NO. 2008-05345 vs. Plaintiff NOTICE OF INTENTION TO FILE PRAECIPE TO ENTER JUDGMENT BY DEFAULT FERNANDO A. AMARAL Defendant TO: FERNANDO A. AMARAL, 6 Cadman Court, Etobicoke, Ontario M9A457 DATE OF NOTICE: December 30, 2008 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. 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. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 Telephone: 1-800-990-9108 , 717-249-31616 BY: DEBORAH L. SMITH, PA I.D. No. 77702 Guarnieri & Secrest, P.L.L. 151 E. Market Street, P.O. Box 4270 Warren, OH 44482 Phone: (330) 393-1584 FAX: (330) 395-3831 r -`-` I c. W a