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Home My WebLink About04-1601IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Julie M. Smith 707B Evergreen Road New Cumberland, PA 17070 Versus : THOMAS JAY POTTER 1874 Piedmont Road, NE Suite 365C Atlanta, GA 30324 Plaintiff(s) & Addresses Defendant(s) & Addresses PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF SAID COURT: Please issue writ of summons in the above-captioned action. Writ of Summons shall be issued and forwarded to ( XX ) Attorney Deanna Lynn Saracco 76 Greenmont Drive Enola, Pennsylvania 17025 Phone 717-732-3750 Fax 717-728~9498 Saraccolaw(~aol.com 0 Sheriff. Signature of Attorney Supreme Court ID~77414 Dated: WRIT OF SUMMONS TO THE ABOVE NAMED DEFENDANT(S): YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF(S) HAS/HAVE COMMENCED AN ACTION'AGAINST YOU. Prothonotary Dated: ( ) Check here if reverse is issued tbr additiona~ information. FINEMAN KREKSTEIN & HARRIS, P.C. BY RICHARD J. PERR, ESQUIRE Attorney I.D. No. 72883 United Plaza, Suite 1800 30 South 17th Street Philadelphia, PA 19103 PHONE 215-893-9300 FAX 215-893-8739 e-mail: rperr~finemanlawfinn.com JULIE M. SMITH, Plaintiff THOMAS JAY POTTER and BCS, INC., Defendants Attorneys for Defendants Thomas Jay Potter and BCS, Inc. COURT OF COMMON PLEAS COUNTY OF CUMBERLAND, PA. CIVIL ACTION NO. 04-1601 PRAECIPE OF NOTICE OF REMOVAL You are directed to take notice that the above action has been removed to the United States District Court for the Middle District of Pennsylvania at Civil Action No. 1 :CV-04o 1324, pursuant to the attached Notice of Removal filed with the Clerk of the United States District Court for the Middle District of Pennsylvania on June 21, 2004. A copy of the Notice of Removal is attached hereto as Exhibit 1. Dated: July 1, 2004 By FINEMAN KREKSTEIN & HARRIS, P.C. RICHA~I6,D J. PERR, ESQUIRE Attorneys for Defendants ~p(0761)17667 CERTIFICATE OF SERVICE I, RICHARD J. PEP, R, ESQUIRE, hereby certify that on this date I served a true and correct copy of the £oregoing pRAECIPE OF NOTICE OF REMOVAL by first class mail, postage prepaid, on the following: Deanna Lynn Saracco, Esquire 76 Greenmont Drive Enola, PA 17025 Attorney for Plaintiff RICHARD J. PERR, ESQUIRE Dated: July 1, 2004 ~p(0761)17667 EXHIBIT I JS 44 (Re~;. 07/89)" CIVIL COVER SHEET The JS-44 civil cover sheet and the Information contained herein neither replace nor supplement the filing end service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, Is required for the use of the Cterk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THIS FORM.) I (a) PLAINTIFFS JULIE M. SMITH (b) COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIFF Cumberland Co. (EXCEPT IN U.S. PLAINTIFF CASES) (C) ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER) Deanna Lynn Saracco, Esquire 76 Greenmont Drive Enola, PA 17025 PHONE 717-732-3750 e-mail: saraccolaw@aol.com II. BASIS OF JURISDICTION (PLACE AN X IN ONE BOX ONLY) III. DEFENDANTS THOMAS ,J. POTTER and BCS, INC. COUNTY OF RESIDENCE OF FIRST LISTED DEFENDANT (IN U,S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES. USE THE LOCATION OF THE TRACT OF LAND INVOLVED A3'FORNEYS (IF KNOWN) Richard J. Perr, Esquire Fineman Krekstein & Harris, P.C., United Plaza, Suite 1800 30 S. 17th St., Philadelphia, PA 19103 PHONE 215-893-8724 e-mail: rperr@finemanlawfirm.com ITIZENSHIP OF PRINCIPAL PARTIES (PLACE AN x IN ONE BOX (For Diversity Cases Only) FOR PLAINTIFF AND ONE BOX FOR DEFENDANT) PTF DEF PTF DEF IV. CAUSE OF ACTION (CITETHEU.S. ClVILSTATUTEUNDERWHICHYOUAREFILINGANOWRITEABRIEFSTATEMENTOFCAUSE. DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY.) Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq. V. NATURE OF SUIT (PLACE AN X IN ONE BOX ONLY) CONTI~t. CT TORTS FORFEITURE~P~M.lr~ BANKRUPTCY OTHER STATUTES VI, ORIGIN (PLACE AND X IN ONE BOX ONLY) [] 10dginel [] 2 Removed from [] 3 Remanded from [] 4 Reinstated or [] 5 Transforrsd from [] 6 Mulfldistflct [] 7 Appeal lo District Proceeding State Cou~ Appellate Court Reopened another district Litigation Judge from (specify) Magistrate Judgment VII. REQUESTED IN CHECK IF THIS IS A CEA. SS ACTION DEMAND $ Check YES only if demanded In complaint: COMPLAINT: [] UNDER F.R.C.P. 23 JURY DEMAND: []YES [] NO VIII. RELATED CASES(S) (See instructions): IF ANY NONE JUDGE DOCKET NUMBER SIGNATURE N F RE DATE June 17, 2004 UNITED STATES DISTRICT COURT IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA JULIE M. SMITH FI L~1-~, : CIVIL ACTION v. C go, 0 4 - 13 2 4 THOMAS JAY POTTER and : BCS, INC. ,~ :'~ ~wuv', . .- JURY TRIAL DEMANDED N O TI Cj~ ~Ol~'~l~tJl~ M~VAL Defendants Thomas Jay Potter ("Potter") and BCS, Inc.("BCS"), by their undersigned counsel, hereby petitions this Court as follows, pursuant to 28 U.S.C. § 1441(b): 1. Potter and BCS are defendants in an action pending in the Pennsylvania Court of Common Pleas for Cumberland County, No. 04-1601 ("the State Court Action"). A true and correct copy of the Complaint in the State Court Action is attached h~reto as Exhibit "A'. 2. Plaintiff in the State Court Action is lulie M. Smith. S¢¢ Exhibit "A". 3. Plaintiff's State Court Action alleges violations of thc Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq. 4. The State Court Action involves a question of i~deral law. Pursuant to 28 U.S.C. § 1441 (b), "Any civil action of which the district court shall have original jurisdiction founded on a claim or right arising under.., the laws of the United States shall be removable." 5. Since this case arises out of an alleged violation of the Fair Debt Collection Practices Act, 15 U.S.C. § § 1692, et seq., this Court may properly remove the State Court Action based on 28 U.S.C. § 1441Co). 6. This Notice has been filed with the Court within thirty (30) days after purported service of the Complaint on Potter and BCS. WHEREFORE, defendants Potter and BCS pray that the State Court Action be removed from the Pennsylvania Cou~t of Common Pleas for Cumberland County to this Court for proper and just determination. Richard J. p;~,~ United Pl~g'~a, S~I s 1800 30 South '17th Street Philadelphia, PA 19103 215-893-8724 FAX 215-893-8739 e-mail: rperr~finemanlawfirm.com Attorneys for Defendants Thomas Jay Potter and BCS, Inc. Dated: June 17, 2004 2 CERTIFICATE OF SERVICE I, RICHARD J. PERR, ESQUIRE, hereby certify that on this date I served a true and correct copy of the foregoing Notice of Removal by first class mail, postage prepaid, on the following: Deanna Lynn Saracco, Esquire 76 Greenmont Drive Enola, PA 17025 Attorneys for Plaintiff ESQUIRE Dated: June 17, 2004 EXHIBIT "A" 781-$96-8619 Jnfle M. Smith Plaintiff, ¥. :IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, :PENNSYLVANIA : :Civil Action No.: 04-1601 TO T~E DEF~NT N~.~ HEH~.r~: 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 twent 20 s after this Complaint is 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 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. XOU SHOULD TAKE T~IS PAPER TO YOUR LAWYKRAT ONCE. IF YOU DO NOT HAVE ALAWYER OR CANNOTAFFORD ONE, CO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEC, AL HELP. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 1-800-990-9108 717-249-3166 ~OTIOIA Le han demandado a usted en la corte. Si usted quire defenderse de estas demandas ~xpuetas en las paginas siquientes, usted tiene viente (20) dias de plazo al partir de la fecha de la excrita o en persona o por abogado y archivar en la corte en forma excrita sus defensas o sus objectiones a las demande, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y pot cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADOO SI NO TIENE EL DINERO SUFICIENTE DE PAGA~ TAL SERVICION, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE PUEDECONSEGUIRASiSTENCiA LEGAL. Oun' 1~ O'4 1~:2~p 9CS, Inc. 781-59S-8619 p.3 Jnlie M. Smith Plaintiff, V. Thomas Jay Potter and BCS, Inc., Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : : Civil Action No.: 04-1601 : ., And now comes Plaintiff, by and through her counsel, and files this Complaint and in support thereof, avers the following: COUNT I Jurisdiction for this Action is asserted under the Penn:;ylvania Fair Credit Extension Uniformity Act, 73 P.S. §2270 ct seq. Defendant Thomas J. Potter is an attorney and business entity engaged in the business of collecting consumer debts in this Commonwealth with a mailing address 1874 Piedmont Road, NE, Suite 365C, Atlanta, GA 30324. Defendant BCS, Inc., is a business entity engaged in the business of collecting consumer debts in this Commonwealth with a mailing address of 1874 Piedmont Road, NE, Suite 365C, Atlanta, GA 30324. Violating provisions of the Fair Debt Collection Practi,ees Act also violate the Pennsylvania FCEU, 73 P.S. §2270.4(a). That defendant engaged in tuffair methods of competition and unfair or deceptive acts or practices, as defined by FCEU and the regulations, including but not limited to, violations of 37 Pa. Code §§303.3(3), 303.3(14), 303.3(18), 303.6 and 73 P.S. §201-2(4), Defendant's acts as described herein were done with malicious, intentional, willful, reckless, negligent and wanton disregard for Plaintiff's fights with the purpose of ~un ~ 0'~ ZZ:ZZp 9CS~Inc. 781-598-8619 p.~ coercing Plaintiff to pay the alleged debt. 7. As a result of the above violations, Plaintiff is entitl~l to statutory, actual, treble &nd punitive damages and attorney's fees and costs. WHEREFORE, plaintiffrequests that this Honorable Court issue judgment on his behalf and against defendants for a statutory penalty, treble damages, punitive damages, attorney fees and costs pursuant to 73 P.S. §2270.5. COUNT II 8. Jurisdiction for this action is asscrtcd pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. §1692, et seq. ("FDCPA"), particularly 15 U.S.C. § 1692k(d) and 28 U.S.C. §1337. 9. Venue lies in this District pursuant to 28 U.S.C. 1391(b). 10. Plaintiff is an individual and consumer pursuant to 15 U~S.C. §1692a(6). 1 I. Defendant Potter is an attorney engaged in the business: of collecting debts in this · Commonwealth and is a debt collector as defined by 15; U.S.C. 11692a(3). 12. Defendant BCS, Inc., is a business entity engaged in th{," business of collecting debts in this Commonwealth and is a debt collector as defined by 15 U.S.C. 11692a(3). 13. Defendant's letters to Plaintiff are "communications" relating to a "debt" as defined by 15 U.S.C. 11692a(2) and 1692a(5). 14. At all pertinent times hereto, the defendant was hired to collect a debt relating to a consumer transaction. (Hereinaiter the "alleged debt.") 15. Defendant communicated with plaintiff on or after one ),ear before the date of this action, tn connection with collection efforts, by letters, telephone contact or other documonts, with regard to plaintiff's alleged debt. ~un 14 O~ l~:2~p BCS, Ine. ~81-59G-SG19 p.5 16. On or about March 16, and April 16, 2004, defendanl drafted and mailed, to the Plaintiff, via U.S. mail, collection or "dunning" letters, which attempt to coerce Plaintiff into paying the alleged debt. 17. Plaintiff believes and therefore avers that Potter did not review Plaintiff's account. 18. Plaintiff believes and therefore avers that attorneys use their letterheads and status in a way collection agencies cannot and that a letter from attorney adds a heightened Urgency to the claim. 19. Plaintiff believes and therefore avers that most attorney debt collector rarely, if ever, file mt against consumers 20. Courts have held that the threat of litigation is present simply because the letter comes from an attorney; the letter need not explicitly threaten suit...Cmsslcv v. Licbcrman, 868 F.2d 566 (3d Cir. 1989). United States v. Cenlxal Adiustment Burea,, 667 F. Supp. 370, 397 (N.D. Tex. 1986). 21. An attorney's interstate collection letters must avoid misrepresenting the attorney's authority to sue where he or she is not admitted to practice. Cressley v. Lieberman 868 F 2d 566 (3d Cir. 1989). 22. Defendant's letterhead would easily confuse the least sophisticated consumer and canse the consumer to falsely believe that he/she could be sued in an out-of-state court. Rosa y. G~vnor, 704 F. Supp. I (D. Conn. 1989). 23. Plaintiff believes and therefore avers that defendant BCS, he., is liable for the actions of its agent, defendant Potter. 24. Plaintiff believes and therefore avers that defendants BCS, Inc.. and Pon~r ~,~,~ o~:-- :- concert in order to mislead, confilae and deceive her and the least sophisticated consumer. 3un 14 O~ l~:2~p BCS, In=. 781-59S-8619 25. 26. 27. 28. 29. 30. 32. Defendants BCS, Inc., and Potter are liable for ,,ach other's actions under principal/agent theories as well as the FDCPA. Defendant's letter does not clearly identify BCS, Inc. and its relationship with the original creditor, as such, Plaintiff believes and therefore aver. g that neither BCS, Inc, Nor Potter has the proper authority under Pennsylvania law to collect the alleged debt Plaintiff believes and therefore avers that defendant's legal letterhead was used apt~ in connection with thc practice of law, but rather as a debt collector for the sole purpose of intimidating the Plaintiff, as such, overshadowed the IrDCPA. §1692g. Thc FDCPA states, a debt collector may not use unfa/r or unconscionable means ~o collect or attempt to collect any debt. 15 U.S.C. §1692f. Defendant violated this section of thc FDCPA. Thc FDCPA states, a debt collector may not use false, deccpt/ve or misleading representation or means in connection with thc collection of any debt. 15 U.S.C. §1692e. Dcfendnnt violated th/s section of thc FDCPA. Thc FDCPA states, a debt collector may not engage in any conduct the natural consequence of which is to harass, oppress or abuse ~ay person in connection with the collection cfa debt. 15 U.S.C. §1692d. Defendant violated this section oft. he FDCPA. The FDCPA states, a debt collector may not con~municatc, in connection with thc collection of any debt, with any person other than thc consume. 15 U.S.C. § 1692c(b). Defendant violated this section of the FI)CPA. The FDCPA states, it is unlawful to design, compile ~ad furnish any form knowing that such form would be used to create the false believe in a cousumcr that a person other than the c~ditor of such consumer it participating in the collection of or in an attcnapt to Jun 33. 34. 35. 36. 37. 38. 39. collect a debt such consumer allegedly owes such creditor, when in fact such person is' not so participating. 15 U.S.C. §1692j. Defendant v:iolated this section of the FDCPA. The FDCPA states, it is unlawful to add interest, chm'ges, fees or other costs unless authorized by law or contract; Plaintiffdoes not have a contract with Defendant. 15 U.S.C. §1692fand §1692c(2)(A) and (B). Defendant violated this section of the FDCPA. The FDCPA provides certain rights to the consumer~egarding her right to dispute the alleged debt, 15 U.S.C. §1692g. Defendant violated this section of thc FDCPA. The FDCPA states, a debt collector may not communicate with a consumer at the consumer's place of employment if the debt collector knows or has reason to know that the consumer's employer prohibits the consumer from receiving such cormnunications. 15 U.S.C. §1692e(a)(3). Defcndant violated this section of the FDCPA. Defendant's collection communications were intentionally con_fusing, misleading and otherwise deceptive to the Plaintiffs, in violation of 15 U.S.C. §1692e(5) and (10), §1692f(8) and § 1692j, see also, Inre Belile, 208 B.R. 658 (E.D. Pa 1977). Defendant's communications created a false sense of urgency on the past of Piaintiffin violation of the FDCPA. Tolen~ino v. Friedman, 833 F. Supp. 697 (N.D. Ill. 1993); ~, 831 F. Supp. 321 (S.D.N.Y. t993); and~ 784 F. Supp 1 (D. Conn. 1989). Any threat of litigation is false if the defendant rarely, sues consumer debtors or if the defendant did not imend to sue the Plaintiff. Bentlv v. Great Lakes Collection Bure.,- 6 F.3d 62 (2d Cir. 1998). See also, t5 U.S.C. §1692e(5), 15 U.S.C. §1692e(10). At all time pertinent hereto, the defendant was acting by and through its agents, servants ~un ~4 ~4 ~2=Z3p ~CS, Zn=, 78]-59G-8S~9 and/or employees, who were acth~g within the scope and course of their employment, and under the direct supervision and conl~ol of the defendants herein. 40. At all times pertinent hereto, the conduct of defendant as well as their agents, servants, and/or employees, was malicious, intentional, willful, reckless, negligent and in wanton disregard for federal and state law and the rights of the Plaintiff herein. 41. Plaintiff believes and therefore avers that the Defenchmt's agents made false threats of litigation. 42. Defendants threat of litigation was false bemuse defendant does not routinely file suit against consumer debtors, in violation of 15 U.S.C. §1692e(5) and (10). 43. Defendants letters were intentionally confusing and deceptive, in violation of 15 U.S.C. §1692e(5) and (10), §1692ff8) and §1692j. 44. Plaintiffwas confused, deceived and believed that litigation was imminent if settlement was not made. 45. The above mentioned acts with supporting eases demonstrates that the conduct of defendants rises to the level needed for punitive dmnages. 46. Defendant, in its collection efforts, violated the FDCPA, inter alia, Sections 1692, b, c, d, e, f, g, h, and/or n. 47. Defendant, in its collection efforts, used false or deceptive acts and intended to oppress and harass plaintiff. 48. That, as a result of the wrongt~ul tactics of defendants as aforementioned, plainfiffhas been subjected to anxiety, harassment, intimidation and annoyance for which compensation is sought. 49. Defendant was served with a Writ by certified mail on April 24, 2004. ~un' 14' ~ l~:~3p ~CS, Ino. ?81-59G-SG19 p,9 WHEREFORE, Plaintiff respectfully requests that his Honorable Court enter judgment on her behalf and against defendants and issue an Order: (A) Award Plaintiff statutory damages in the mount of One Thousand Dollars ($1,000.00) for each violation of the FI)CPA or each separate and discrete incident in which defendants have violated the FDCPA and for which Plaintiff could have filed a separate action but consolidated her claims for judicial economy. (B) Award Plaintiffgeneml damages and punitive damages for anxiety, harassment, and intimidation directed at lfim in an amount not less th~m Ten Thousand Dollars ($10,000.00), as well as the repetitive nature of defendants form letters. Award Plaintiff costs of this litigation, including a reu~sonable attorney's fcc at a rate of $300.00/hour for hours reasonably expended by his attorney in vindicating his rights under the FDCPA, permitted by 15 U.S.C. §1692k(a)(3). Award declaratory and injunctive relief, and such other relief as this Honorable Court deems necessary and proper or law or equity may pro,Ade. By: /s/Deanna Lynn Sara¢£~ Deanna Lynn Saracco, Attorney for Plaintiff 76 Oreenmont Drive Enola, Pennsylvania 17025 Telephone 717q732-3750, Fax 717-728-9498 Email: SaraccoLaw~aol.com (D) Dated: 5/25/04 Certificate of Service: I hereby certify that a true and correct copy of the foregoing on the defendants as follows: Thomas J. Potter, Esquire tbr himself and BCS, Inc., 1874 Piedmont Road, NE Suite 365C, Atlanta, GA 30324. Dated: 5/25/04 By:/s/Deanna Lynn Samcco