HomeMy WebLinkAbout08-6405ADAM LOCKE, IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
Plaintiffs,
NO: 08 - tP 05 C ivi ( erm
vs.
QUYEN PHI,
Defendant. : CIVIL ACTION
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, 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
Phone: 800-990-9108 or 717-249-3166
AVISO
USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de
las demandas que se presentan mas adelante en las siguientes paginas, debe tomar
accion dentro de los proximos veinte (20) dfas despues de la notificacion de esta
Demanda y Aviso radicando personalmente o por medio de un abogado una
comparecencia escrita y radicando en la Corte por escrito sus defensas de, y
objecciones a, las demandas presentadas aquf en contra suya. Se le advierte de que
si usted falla de tomar accion como se describe anteriormente, el caso puede proceder
sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier
otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra
suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u
otros derechos importantes para usted.
USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE.
SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA.
ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO
CONSEGUIR UN ABOGADO.
SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES
POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE
AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO
A PERSONAS QUE CUALIFICAN.
CUMBERLAND COUNTY BAR ASSOCIATION
32 South Bedford Street
Carlisle, PA 17013
Phone: 800-990-9108 or 717-249-3166
2
ADAM LOCKE,
vs.
QUYEN PHI,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
Plaintiffs,
NO: 0f ° L 405 0-4,?Jl ?.-
Defendant. : CIVIL ACTION
COMPLAINT
AND NOW, comes Plaintiff, Adam Locke, by and through his attorneys, IRA H.
WEINSTOCK, P.C., and avers the following:
1. Plaintiff, Adam Locke, is an adult individual with a place of residence at 2635
Roxbury Road, Shippensburg, Pennsylvania 17257.
2. Defendant, Quyen Phi, is an adult individual with a place of residence at
2158 N. Panni Circle, Orange, California 92867.
3. This Honorable Court has jurisdiction over this matter pursuant to 42
Pa.C.S.A. § 931.
4. Venue is proper in this Honorable Court pursuant to Pa. R.C.P. 1006 as
the events giving rise to this cause of action took place in Cumberland County.
5. On or about June 18, 2008, Plaintiff, Adam Locke, entered into a written
contract through his agent, Randy Thickey, with Defendant whereby Plaintiff agreed to sell
and Defendant agreed to buy a 2007 MacComb County Chopper motorcycle, VIN Number
8EA051114LR. A true and correct copy of the contract entitled "Bill of Sale of Motor
Vehicle" is attached hereto as Exhibit "A" and incorporated herein by reference.
6. Defendant made an offer to Plaintiff's agent, Randy Thickey, consisting of a
sale of the motorcycle to Defendant in exchange for $3,500.00 plus a trade of a 2007
Chevy Avalanche, which Plaintiff accepted in Cumberland County, Pennsylvania via his
agent, Randy Thickey.
7. The Agreement expressly provides that Plaintiff agreed to seH Defendant the
motorcycle in consideration of the sum of $3,500.00 plus a trade of a 2007 Chevy
Avalanche.
8. The Agreement also provides that "[t]he Seller expressly disclaims all
warranties, whether express or implied, including but not limited to, any implied warranty of
merchantability or fitness for a particular purpose. The Seller does not assume or
authorize any other person to assume on the behalf of the Seller, any liability in connection
with the sale of the Motor Vehicle. The Seller's above disclaimer of warranties does not, in
any way, affect the terms of any applicable warranties from the manufacturer of the Motor
Vehicle."
9. The Agreement further provides that "[t]he Purchaser has been given the
opportunity to inspect the Motor Vehicle or to have it inspected and the Purchaser has
accepted the Motor Vehicle in its existing condition. Further, the Seller disclaims any
warranty as to the condition of the Motor Vehicle."
10. The Agreement also states that the "[v]ehicle was purchased sight unseen
and sellers (sic) views or opinions may not always match buyers (sic). There are no
implied exchanges or refunds. Vehicle was delivered to DAS shipping drop yard at this
time seller relinquishes all rights and responsibilities for said vehicle."
2
11. The Agreement also lists Cumberland County, Pennsylvania as the location
for the contract.
12. Prior to entering the written Agreement, Plaintiff posted the motorcycle on
the intemet site called ebay for reserve auction.
13. Pursuant to the reserve auction on ebay, Defendant posted a bid for
$12,000.00 for the motorcycle and won the auction.
14. Defendant made numerous calls to Plaintiff and Randy Thickey asking for
the motorcycle after the close of the intemet auction.
15. Plaintiff and Defendant eventually agreed that Defendant would pay a
$2,000.00 deposit before Plaintiff shipped the motorcycle to California.
16. Plaintiff and Defendant agreed that Defendant would pay the remaining
balance upon receipt of the motorcycle.
17. Plaintiff and Defendant ultimately agreed that Defendant would pay
$3,500.00 plus the Chevy Avalanche in exchange for the motorcycle consistent with the
terms of the written Agreement set forth above.
18. Plaintiff and Defendant also agreed that once Defendant received the
motorcycle, he would ship the Chevy Avalanche to Pennsylvania.
19. Randy Thickey, acting on behalf of the Plaintiff, advised Defendant prior to
the signing of the Agreement that the motorcycle was making a noise and that the cause
of the noise was unknown.
20. Plaintiff also advised Defendant prior to the signing of the Agreement that
the motorcycle had no turn signals.
3
21. The parties signed the Agreement on June 18, 2008.
22. Plaintiff received a $2,000.00 deposit from the Defendant shortly thereafter.
23. On or about July 2, 2008, Randy Thickey, acting on behalf of the Plaintiff in
Cumberland County, Pennsylvania, shipped the motorcycle to Defendant in Califomia. A
true and correct copy of the shipping receipt entitled "Thomas Sunday Transportation" is
attached hereto as Exhibit "B" and incorporated herein by reference.
24. Plaintiff paid for the cost associated with shipping the motorcycle to
California.
25. Defendant received the motorcycle approximately several days later on or
about July 10, 2008.
26. On or about July 11, 2008, Defendant advised Plaintiff that he had sold the
Chevy Avalanche locally in California to another buyer.
27. Defendant subsequently telephoned and advised Plaintiff that the
motorcycle was making a noise and that he had taken it to a local bike shop, which
dismantled the motorcycle in order to determine the noise.
28. Defendant advised Plaintiff that he wanted $990.00 to cover the costs
associated with the bike shop's work, in addition to several thousand more dollars to repair
the motorcycle.
29. To date, Defendant has failed to pay any of the agreed upon sums of money
or the Chevy Avalanche in consideration for the motorcycle, as previously agreed.
30. Defendant has failed and refused, and still refuses, to cure the aforesaid
breach.
4
31. Defendant remains in possession of the motorcycle and refused to return it
to the Plaintiff, despite his failure to pay the previously agreed upon sum.
32. Plaintiffs claim does not exceed the amount requiring arbitration by local
rule.
Count 1
33. Plaintiffs incorporate by reference paragraphs 1 through 32 set forth above.
34. Defendant has breached his contract with Plaintiff by failing to pay the
$3,500.00 and trade of the Chevy Avalanche, as agreed.
35. As a result of Defendant's breach, Plaintiff has incurred a loss of $24,535.00
as that is the current Kelley Blue Book rating for the 2007 model of the Cherry Avalanche,
in addition to $3,500.00 in cash.
WHEREFORE, Plaintiff demands judgment in his favor and against Defendant,
Queyn Phi, in the amount of $28,035.00, plus interest and costs of suit.
Count 2
36. Plaintiffs incorporate by reference paragraphs 1 through 35 set forth above.
37. Defendant would be unjustly enriched if he were permitted to retain the
benefits conferred on him by Plaintiff without paying the fair and reasonable value
therefore. Plaintiff provided Defendant with possession of the vehicle, and Defendant has
retained possession of the vehicle without paying the agreed upon sum of money and
trading the agreed upon 2007 Chevy Avalanche in consideration therefor.
5
38. The amount of $28,035.00 remains due and owing from Defendant to
Plaintiff.
WHEREFORE, Plaintiff demand judgment in his favor and against Defendant,
Quyen Phi, in the amount of $28,035.00, plus interest and costs of suit.
Respectfully Submitted,
IRA H. WEINSTOCK, P.C.
800 North Second Street
Harrisburg, PA 17102
Phone (717) 238-1657
By:
By:
NEINSTOCK
I.D. No.: 69272
IN POZNIN?IS(/
mey I . D. ? ? 201073
6
COMMONWEALTH OF PENNSYLVANIA )
) ss.
COUNTY OF CUMBERLAND )
I verify that the statements made in the attached COMPLAINT are true
and correct. I understand that false statements herein are made subject to the penalties
set forth in 18 Pa. C. S. §4904 relating to unsworn falsification to authorities.
DATED: 4 Id a/C98 2&
ADAM LOCKE
06-18-2068 22c88 R 717'49439i
Ae1e0== m 91 Ala cy Lamig"Lddo
rthm"llM4 &-Sbmr- 4
liblor-FO Or6
'tjwrBe?r?per rdbaMior?w+nao :WhAwa?wd«im*4
r?biliq?arfamoleraim-0 -,
eMalNie,?m 6 r!?1? ?!u wmw n b mwna 40 *a bowa4lft memo"
wwb erwri. ofda ?tomcv bids km dk o do tYMmr
On mmem ?eot der rrr of +eq applicable Mull- lf
PAGE2
IL 44P & vs r
ivrdevM
wA?.
OL lout
'lktft lwerbm bom piremll?aappurloalp O iOpd ilpbt w vf"4rwm"k
b +?'
dmp -a -, rhmwue4p OdiIrvMo?orviiaM isib-"bbdooaOWL Ps"
loom* a10 dw OwAduamb 1? p* Vabida.
V vme phi w/M avwaeerddadlrn? viowsKOp in¦raq? mKahagor ?aM?M b `
? ?;wpYed art s. vw*wm, - - M o iAa iMl?i?s dmP 7wdM d& *w
?mdmwmdmmhrnw Vaal&
Sf(i}I?li?Ali>0.AND>l?EIYRII? /?/??
1?t'1'f?ieloesy
at
l-'
jvwlAvww .p1sp'tfoowtlS 9/2?1Z00'!
Exhibit
RA"
1N C"IMPA'iM OMB aria of 35 'x' ' nth woa.
pdd e*Ih, dr>roeipt etvrbYi+oaaldK+? s ?? ??.v-??' / ?I'i'?ipia?? (1i+e
10" A I
. the ibIi , jj maoccva "O&,=vv"r
nogoUable
?-anw BA she date of issue of this Original Bill of Lading
Thomas Sunday Transportation
Mailing Address: P.O. Box 217, New Kingstown, PA 17072
From 1-800-541-6601 ¦ Fax 1-717-697-0727 a?
Shipper and / or Agent 11 t ck Date / - , 206
v it. C 767
the property descrited below, in apparent good order, except as of (contents and condition of contents of packagesun o ), marked, consig , and destined as Indicated blow wh h said carrier
(the word carrier being understood throughout IN contract as inp any person or corporation in possession of the pr ry under the contract) aarevs to carry to it's usual place of denvsry of said
st, if on its route, otherwise to deliver to another carrier on the route to said destination. It is mutually agreed, as to each carrier of an or any o
de ination f said property over on or any portion of said route
to destination, and as to each party at any, time interest in all or arty of said property, that every service to be performed hereunder shall be suDled to all the terms and conditions of the Uniform Domestic
Straight Bill of Lading set forth (1) in Uniform freipln Classification In effect on the dale hereof, it this Is a fail or rail-water shipment, or (2) In the applicable motor carrier dassUkatten or term If this is a
molar carrier shipment.
Shipper hereby certifies that he is familiar with all the terms and conditions of the said bill of lading, including those on the back thereof, set forth in the classification of tariff which governs the
_-transportation of this shipment. and the said terms and conditions are hereby agreed to by the shipper and accepted for himself and his assigns.
(J6 a (A
Description of Vehicle and Exceptions: State &
Year, Make
& Model aLbl
- - ItI, S r}4 it, I.D. Licens
F-An L 4
N
Odometer
o. No.. U
LASTS DIGITS Reading
Yes No Yes N
? O Floor Mats front El rear I-1
? Tool Kit ?
?
_1 Tape Player 0 CD Chan er
g Yes No
? El Jack and Wrench Yes
O No
? Books/Records
01 ? Tonneau Cover
? El Air Compressor Phone
I Shot Glasses - Decantur
. ? 13 Spare Tire & Wheel
CJ ? Sty
led Wheels ?
? O Spare Keys
? Corn Top
Radar Detector ? O Wheel Covers -Wire
? Vehicle dirty [71 Inspected at night -J Inspected in rain ' May have hidden scratches, dents and/or paint chips. ? ?
Condition of interior and Other comments:
cone IDENTIFICATION CHART
Or Broken Cr - Cracked FF - Foreign Fluid L - Loose
O - Dent T - Tom M - Miesini
FRONT
RIGHT SIDE
X - Paint Chip
S - Scratch
Subleot to section 7 of condkkm,
if this shipment Is to be denvend to
the consignee without recourse on the
cons nor, the consignor often sign the
folla no statement
The carrier shall not make delNery
of this shipment without fun pe/mot
of freight and all other lawful charges.
fee - 0- 40"
If charges are to be prepaid, or
C.D.D. wrioe a stamp hen. To be
n
prepaid or C.O.D., , t /
Received S
too
pply in prepayment of the drupes
on t Property described hereon.
O cheat rr
PAYMENT MUST
BE MONEY ORDER OR
CASHIERS CHECK
In the amount of:
VEHICLE(S) TRANSPORTED AND COVERED BY THIS BILL OF LADING SERVE AS COLLATERAL WITH A SECURITY INTEREST POSITION
IN FAVOR OF THOMAS SUNDAY TRANSPORTATION UNTIL ALL CHARGES ARE PAID AND ALL MONIES ARE CLEARED.
I have read both sides and I understand the conditions of the contract. I have revievgL
PERMISSIO VEN O D except a of
LE TO AND FROM TRUCK TRANSP
Shipper Date C7
Receiver
Driver's ignature _
(WHITE - BIER) (YELLOW - AVER) (PINK - RECEIVER)
acted my car, with no transportation damages,
1 and thereby release THOMAS SUNDAY
1 any further claims.
V
Date
Odometer Reading !L?!4kE.Khibit
DENROD - SHIPPER) °B"
BACK DRIVERS SIDE
00
93
W
C
oo
U1
r..a ?
.Q -7 7 ?S
?
r ? t
J
SHERIFF'S RETURN - U.S. CERTIFIED MAIL
CASE NO: 2008-06405 P
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
LOCKE ADAM
VS.
PHI QUYEN
R. Thomas Kline , Sheriff of Cumberland
County, Pennsylvania, who being duly sworn according to law served the
within named DEFENDANT PHI QUYEN
by United States Certified Mail postage
prepaid, on the 31st day of October ,2008 at 1000:00 HOURS, at
2158 N PAMI CIRCLE
ORANGE, CA 92867
and attested copy of the attached COMPLAINT & NOTICE
with
a true
. Together
The returned
receipt card was signed by SIGNATURE NOT LEGIBLE on
11/03/2008 .
Additional Comments:
Sheriff's Costs: So answer _
Docketing 18.00
Certified Mail 5.66 R. Tho, s Kline
Postage .59 Sheriff of Cumberland County
Surcharge 10.00
.00
34.25
Paid by IRA WEINSTOCK on 11/07/2008
Sworn and Subscribed to before me this
day of A.D.
¦ Complete items 1, 2, and 3. Also complete
item 4 if Restricted Delivery is desired.
¦ Print your name and address on the reverse
so that we can return the card to you.
¦ Attach this card to the back of the mailpiece,
or on the front if space permits.
1. Article Addressed to:
Quyen Phi
2158 N. Pdnni Circle
Ordnge, CA 92867
X ? ? Agent.
? Addressee
B. R eived by ( rinted Name) C. Date of Del Wgfy
D. Is delivery address different from Item 1?
If YES, enter delivery addpesg bel0, \ No
?- any. e
Z I Sf3 . rc
3. Service Type -
MOTA tifled Mail ET x Rs?'*d ,
? Registered ? Return Receipt for Merchandise
? Insured Mail ? C.O.D.
4. Restricted Delivery? (Extra Fee) ? Yes
7004 1350 0003 7145 7797 08-6405 civil
PS Form 3811, February 2004 Domestic Return Receipt 102595-02-M-1540
David D. Bueff
Prothonotary
KirkS. Sohonage, ESQ
Soricitor
office of the (Prothonotary
Cum6erfand County, Pennsylvania
Wsnee X Simpson
Ft Deputy Prothonotary
Irene E. Morrow
„S 2nd l
fl ' eputy 1?"roL. onotary
n8 - I. gOSJ CIVIL TERM
ORDER OF TERMINATION OF COURT CASES
AND NOW THIS 25T" DAY OF OCTOBER, 2011, AFTER MAILING NOTICE OF
INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE
CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA
R.C.P 230.2
BY THE COURT,
DAVID D. BUELL
PROTHONOTARY
One Courthou tie Square 9 Suite 100 9 Carlisle, PA 17013 9 (717 240-6195 0 Fa.X (717 240-6573