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HomeMy WebLinkAbout08-7251L _4+ COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS FROM DISTRICT JUSTICE JUDGMENT Cumberl JUDICIAL DISTRICT COMMON PLEAS No. p 8 - 7_?5 aI VI I Term NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date and in the case mentioned below. NAME OF APPELLANT I MAG. DIST. NO. OR NAME OF D.J. ADDRESS OF APPELLANT CITY STATE ZIP CODE 185 Newberry Common (#175) Etters PA 17319 DATE OF JUDGMENT IN THE CASE OF (PLAINTIFF) H & M Mob(1 lie Affome 12/2/2008 Vivian Peters vs.Remodelers CLAIM NO. SIGNATURE OF APPELLANT OR HIS ATTOR OR AGENT CV YEAR _- LT YEAR This block will be signed ONLY when this notation is required under PA. If appellant was Claimant (see PA R.C.P.J.P. R.C.P.J.P. No. 1008B. No. 1001(6)) in action before district Justice, he This notice of Appeal, when received by the District Justice, will operate as A SUPERSEDEAS to the Judgment for possession in this case. MUST FILE A COMPLAINT within twenty (20) days after filing his NOTICE of APPEAL. Signature of Prothonotary or Deputy PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see PA R.C.P.J.P. No. 1001(7) inaction before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary Enter rule upon Vivian Peters appellee(s), to file a complaint in this appeal Name of appellee(s) (Common Pleas No. ) within twenty (20) days after service of rule or suffer entr dgm n pros. Term Sign ure o appellant or his attorney or agent Steven Howell, Esquire RULE: TO Vi cri a" n pet-Grs appellee(s) ID 62063 Name ofappeflee(s) 619 Bridge Street New Cumberland PA 17070 (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty(20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS WILL BE ENTERED AGAINST YOU UPON PRAECIPE. (3) The date of service of this rule if service was by mail is the date of the mailing. Date: fr hea-e ber -Year r wp Si r r honotary or Deputy White Prothonotary Copy Green - Court File Copy Yellow - Appelant's Copy Pink Appellee Copy Proth. - 76 Gold D. J. Copy NOTICE OF APPEAL PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing the notice of appeal. Check applicable boxes) COMMONWEALTH OF PENNSYLVANIA COUNTY OF ss AFFIDAVIT: I hereby swear or affirm that I served ? a copy of the Notice of Appeal, Common Pleas No. , upon the District Justice designated therein on (date of service) , year ? by personal service ? by (certified) (registered) mail, sender's receipt attached hereto, and upon the appellee, (name _ , on , year , ? by personal service ? by (certified) (registered) mail, sender's receipt attached hereto. ? and further that I served the Rule to File a Complaint accompanying the above Notice of Appeal upon the appellee(s) to whom the Rule was addressed on year ? by personal service ? by (certified) (registered) mail, sender's receipt attached hereto. SWORN (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS _ DAY OF , YEAR Signature of Affiant ? tom. C= '71 M Cl) ? ? C7 C v t -C % Signature of official before whom affidavit was made Title of official My commission expires on , year 12¢05/2008 10:05 17172665627 HM MOBILE HOME 715 PAGE 01 DE'--5-2000 11:00F FROM:.YAWS M Brx:,'H ATTORNE 71'77374220 TO: 1717266rt;E27 F.1 Oro 04 00 02137p The UPS Store 7170362352 p.1 COMMONWEALTH Of P>=frNl3YLYANIA NOTICE OFd VI L cot,ntr,r n?- emoES?stiEO I 02-S-01 ?aslaif?n s. pie sfs rr aaasaEfr; s? s=xao, srs re:, (717) 532-7676 17257-0391 PLA "FF: Nppp %=S , SEE s saairss nee E!A 3.1257 V& flEF"k?ANlrt: n?.e ?ooaE9s a & K us= sm ms 7 sss sow?aiie?r ? les IE01>i?tss c 0%75 ?s?rr, y1# 1731! a a x IKWU NKM TIt?OIOEQnfi J Iss : COW E7OM INo.: c0-00s0sss-00 'of xsmiNm ODI?IDN l3.7s 002 Fled: 11/00/99 a'r!r#RS. VAL 17919 0WILM THIS IS TO NOTIFY YOU THAT JUdwn*ft =WAEEW VIII ! .'?'? ?, (Date of Judgment) ..42/02100 © Judgment was entered for (Name) OEiI= 1. VrVZ X Judgrndtnt was en*M apineC (U ne? 8 & SWUM >aCllx NOMMUM In the 1 • 1b3 amount 01 a Deiandarns era jointly artd SWAM W mole. DamMes will be sesesaed On Date & -nme _ This came dowlined! wllht#ut plajudice. Amount of Judgment 81010% to Attachment/42 Pa.C.5. i3 9127 Ej Portron of Judgment for phyglosl damages arising out of residentlAl base Arnount of Judgment $ 3.000.00 Jutf6rnent GJu+?stt; 0 .3 49.6 Interest on dgment $? Attorney Fees 0 Tool $ 3,113.50 Post Judgment Credits 6. ,.. Pra=t Judgment Coats 6 eR Card"Od judgment raw S Aw PARTr ms TILE mewrTo APPEAL iNfilett IR DAV6 AFM THE ENTRY OF JrJpGMW BY FILING A NO? ft dr APPEAL WNW TH! PROIMW FAWYCLERK OF THE COUNT OF Cf1MMOM RJAe, OML DIVNWk YOU M US i taY G UN A COPY OF TM6 NOTICE OF JUDWEN IPWANgpiPT FO1IM W(M YOUR NOTICE OF APPEAL, W=" AS OTHERtErEE PRO"NO IN THE NUL111 i OF CNIL PROCIPM P414 YMWMIML =VR1C I , IF TM JUDGEWT HOLOW t?umn To &a m Tm JudolilENr w Tw 00M Of CONK Mille, ALL PUMMM P116cm murr COME FROM THE COUNF OF COMMON PLEAS AM NO F!"IR PMCESI MAY ER RUED MY THE MAOIRTVIIAL 0W WT AM. UM JMO THE JUDOMIEXT>a MMlKD IN ThE CW" OF COMM N KIM. ARYOME IMTWMW $D IN TW JUOfItIENT MAY PILE A ITEO?ifT PQR EiHTi1Y OF BATIBPAC71laN WI'M'r11E MlArit6TiliAt dr"t!RICY JUbt IF 7Mt JUOfi1MFtNT DEBTIDN MAVf? IN FULL, surTLEII, OR DIWE M W C"Pun Vr M111te JUOgI gw, 69-t 0? Date District I certify that %No is a true and cored copy of the reowd of the proceedings {iiMi W nirag the judgement. Dane , MaGi0oftl District Judge My commission Wires flrsl Monday of January. 2012 UAL AQPC 315.07 inATZ PRZWMs 13/03/00 111149t00 JW 0000 T4 ' Lon 00 w c ?- b ? rag i PROOF OF SERVICE OF NOTICE OF APPEAL AN (This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER fili COMMONWEALTH OF PENNSYLVANIA COUNTY OF ej k^n 6 ; ss AFFIDAVIT: I hereby swear or affirm that I served ?a copy of the Notice of Appeal, Common Pleas No. b & - T as I (date of service) r>eet^%jLp( %G year ZOO , F] by receipt attached hereto, and upon the appellee, (name \ jI % V ' t?y Q C e ?A.\o ? k g -year Look , D by personal service XhN Oand further that I served the Rule to File a Complaint accompanying the above whom the Rule was addressed on t Q!IZ&AhI ?I';- year 200 mail, sender's receipt attached hereto. SWORN (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS DAY OF 0eCewt4.d4, YEAR Signature of official before whom affidavit was made Title of official My commission expires on , year COMMONWEALTH OF PENNSYLV lA Notarial Seal , Bent M Howell, Notary Public :. NewO+ftland Born; Cwnberland Cpprny W Corrrnission Expires May 1 o, 200th Member, Pennsylvania Associatior of Notaries RULE TO FILE COMPLAINT the notice of appeal. Check applicable boxes) upon the District Justice designated therein on service jab certifi4 (registered) mail, sender's on mail, sender's receipt attached hereto, e of Appeal upon the appellees to E] by personal service %(certifie) registered) 2/i.>70 Signature of Affiant tf L_S .0 Ai 6 ?r?Q?gP Skkee04- A-Ie?cu-"I-ellw d rA-4 7070 T r-7 -7?0 -17--7 7 __0 612-0 6 3 COMMONWEALTH OF PENNSYLVANIA NOTICE OF APPEAL 3 COURT OF COMMON PLEAS JUDICIAL DISTRICT rROM DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. err NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date and in the case mentioned below. NAME OF APPELLANT I MAG. DIST. NO, OR NAME OF D.J. I ? ADDRESS OF APPELLANT CITY STATE ZIP CODE z J , t.. a DATE OF JUDGMENT IN THE CASE OF (PLAINTIFF) (gE>rENDANT);' ., vs. CLAIM NO. SIGNATURE OF APPELLANT OR HIS ATTORW OR AGENT CV YEAR. v -- -m. LT YEAR This block will be signed ONLY when this notation is required under PA. fAlf appellant was Claimant (see PA R.C.P.J.P. R.C.P.J.P. No. 10086. No. 1001(6)) in action before district Justice, he This notice of Appeal, when received by the District Justice, will operate as A SUPERSEDERS to the Judgment for possession in this case. MUST FILE A COMPLAINT within twenty (20) days after filing his NOTICE of APPEAL. Signature of Prothonotary or Deputy PRAEGIPE TO ENTER MULE TO FILE COIi>I;PLAWT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see PA R.C.P.J.P. No. 1001(7) in ac,?tion before' District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary Enter rule upon Name of appellees) appellee(s), to file a complaint in this appeal (Common Pleas No. I)A- `1 51 = ?i vl ¢ ) within twenty (20) days after service of rule or suffer entry of udgmentrtf noh pros. Signaftiire o appellant or his attorney or agent RULE: To r # appellee(s) Na t me,V Up flee(s) (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal w4hin twenty(20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS WILL BE ENTERED AGAINST YOU UPON PRAECtPE. (3) The date of service of this rule if service was by mail is the date of the mailing. Date: I&IVI LIP'S.. Year s -- _- Sigrratur or aepLltY White - Prothonotary Copy Green - Court File Copy Yellow Appelant's Copy Pink Appellee Copy Gold D. J. Copy Proth. - 76 Postal CERTIFIED M AIL,,, RECEIPT co co (Domestic Mail Only; No insurance Coverage Provided) Ln co °,NIFPFF?GI! a77 "?Ei `rl Postage $ x'11.4;? } 1 ??,?R 'qb ru Certified Fee V-, -11J J J .? r uWklstma M p E3 Return Receipt Fee (Endorsement Required) 70 ' j A ere C3 O Restricted Delivery Fee (Endorsement Required) 1i IJi i LyY CA r-q ( Total Postage & Fees $ $55. '2 O r? . j, f?A2060 - 4eNO-e/ ---- O Street, Apt. No.; . . -....''---- or PO Box No. W Q - V ?Jd'?GQ Ln . • or Ln P ?_"r -0 f` Ln $ ru Certified Fee M C3 R m Receipt Fee p (Endors ment Required) C3 Restric ad Delivery Fee O (Endors( ment Required) r--1 N Total ostage & Fees $ O Sent o e -- ; ,e N , v C3 POB r? - or --------- No. ---------- +:1,4? $2-0 {' `f s v. .? ,_:g y lk- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY VIVIAN PETERS 5 Robin Drive Shippensburg, PA 17257 Plaintiff V. CIVIL ACTION - LAW HOWARD J. WELKER DB/A H&M MOBILE HOME REMODELERS 185 Newberry Commons #175 Etters, PA 17315 Defendant NO. 2008-CV-7251 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 of 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 (717) 249-3166 NOTICIA USTED HA SIDO DEMANDADA EN CORTE. Si usted quiere defenderse de a stas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificaci6n. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificaci6n y por cualquier queja o alivio que es pedido en la petici6n de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODGADO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELFFONO A LA OFICINA CUY A DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 ouglas R. Roeder Supreme Court No. 80016 Elder Law Clinic The Dickinson School of Law The Pennsylvania State University 150 South College Street Carlisle, Pennsylvania 17013-2899 Phone: (717) 240-5152 2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY VIVIAN PETERS 5 Robin Drive Shippensburg, PA 17257 Plaintiff V. HOWARD J. WELKER D/B/A H&M MOBILE HOME REMODELERS 185 Newberry Commons #175 Etters, PA 17315 Defendant CIVIL ACTION - LAW NO. 2008-CV-7251 COMPLAINT Plaintiff, Vivian Peters, by and through her attorneys, Douglas R. Roeder, Esq. and The Elder Law and Consumer Protection Clinic of The Pennsylvania State University Dickinson states the following in support of this Complaint: STATEMENT OF FACTS 1. This complaint arises from the appeal of a default judgment in Cumberland County Magistrate District Court, Mag. Dist. No. 09-3-011, Docket No. CV-283- 08, before Magistrate District Judge Harold E. Bender. The Notice of Judgment is attached as Exhibit "A." 2. Plaintiff Vivian Peters ("Peters") is a resident of Cumberland County, residing at 5 Robin Drive, Shippensburg, Pennsylvania, 17257. 3 Defendant Howard J. Welker ("Welker") operates the business of H&M Mobile Home Remodelers with an office at 185 Newberry Commons #175, Etters, Pennsylvania 17319. 4. On August 14, 2008, Plaintiff signed a contract with defendant to build an eight foot by twelve foot screen and glass enclosed patio cover. Plaintiff signed the contract in her home. The contract is attached as Exhibit "B." 5. In exchange for the patio cover, Plaintiff would pay $6000.00 in two installments. The first installment was paid at the signing of the contract. The other installment would be paid at the completion of the patio cover. 6. Plaintiff paid the first $3000.00 installment when she signed the contract. Defendant endorsed and cashed the check. A copy of the check payable to H. Welker and endorsed by Welker is attached as Exhibit "C." 7. Defendant requested approval to build the patio cover from Country Side Mobile Home Park where Plaintiff lives. 8. Country Side denied Defendant's application to build the patio cover. 9. Defendant never did any work on the construction of the patio cover. 10. Plaintiff sent Defendant a letter on October 7, 2008, requesting in writing that defendant return the deposit Plaintiff paid for the construction of the patio cover. A copy of this letter is attached as Exhibit "D." 11. Defendant refused to refund the $3000.00 deposit to Plaintiff. 12. In an attempt to recover the deposit, on November 3, 2008, Plaintiff brought suit against H&M Mobile Home Remodelers in Cumberland County Magisterial District Court. That case was listed as Docket No. CV-0000283-08. 4 13. The Magisterial District Court awarded Plaintiff a default judgment against defendant for $3000.00, plus costs of $93.50, and interest of $60.00. 14. Defendant appealed this matter to the Cumberland County Court of Common Pleas and ruled the Plaintiff to file a Complaint.. COUNT I-BREACH OF CONTRACT 15. Paragraphs 1 through 14 of Plaintiff s complaint are hereby incorporated by reference as if set forth at length. 16. Defendant promised to build a patio cover for Plaintiff as consideration for Plaintiff conveying $3000.00 to the defendants. 17. Defendant failed to fulfill his obligation under the agreement with the Plaintiff and he retained the $3000.00 deposit. WHEREFORE, Plaintiff prays that: (a) a judgment be entered against the Defendant in favor of Plaintiff in the amount of $3000.00, plus legal fees, court costs, and interest; (b) this Court grant such other relief as the Court may deem to be proper and necessary. COUNT II- UNJUST ENRICHMENT 18. Paragraphs 1 through 17 of Plaintiffs complaint are hereby incorporated by reference as if set forth at length. 19. Defendant took Plaintiffs $3000.00 for entering into the contract and failed to return the money when he could not perform the contract. 20. According to Pennsylvania law: "The elements of unjust enrichment are benefits conferred on defendant by Plaintiff, appreciation of such benefits by defendant, 5 and acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value." Stoeckinger v. Presidential Fin. Corp. of Del. Valley, 948 A.2d 828, 833 (Pa. Super. 2008). 21. Defendant accepted and deposited a check for $3,000.00 from the Plaintiff, for services defendant failed to perform, and defendant refuses to return the money. 22. Under these circumstances, it is inequitable for defendant to retain the money without rendering services. WHEREFORE, Plaintiff prays that: (a) a judgment be entered against the Defendant in favor of Plaintiff in the amount of $3000.00, plus legal fees, court costs, and interest; (b) this Court grant such other relief as the Court may deem to be proper and necessary. COUNT III- CONVERSION 23. Paragraphs 1 through 22 of Plaintiff s complaint are hereby incorporated by reference as if set forth at length. 24. Defendant took Plaintiff s $3000.00 for entering into the contract and failed to return the money when they could not perform the contract. 25. Conversion is defined under Pennsylvania law as: "the deprivation of another's right of property in, or use or possession of, a chattel, or other interference therewith, without the owner's consent and without lawful justification." McKeeman v. Corestates Bank N.A., 751 A.2d 655, 659 (Pa. Super. 2000). 6 26. Defendant took $3,000.00 from the Plaintiff and has deprived her from that property without the owner's consent and without lawful justification. WHEREFORE, Plaintiff prays that: (c) a judgment be entered against the Defendant in favor of Plaintiff in the amount of $3000.00, plus legal fees, court costs, and interest; (d) this Court grant such other relief as the Court may deem to be proper and necessary. Respectfully Submitted, Dated: /-9-? t„ V Douglas R. Roeder, Esq. Supreme Court Number 80016 Elder Law and Consumer Protection Clinic The Dickinson School of Law The Pennsylvania State University 45 North Pitt Street Carlisle, Pennsylvania 17013-2899 Phone: (717) 240-5152 7 EXHIBIT A COMMONWEALTH OF PENN; VANIA COUNTY OR C1=ZRL71= " Meg. Dist. No.: 09-3-01 MW Name: Hon. HAROLD 8. B1=ZR Address: 35 N ORNM ST SHIPPMODU tA, PA Telephone: (717) 532-7676 17257-0361 ATTORIIMY FOR PJAMIFF : DOUGMeAS R. ROZDZR 45 N. PITT ST LAIN OTC OF DOVIZI ?S R ROZD CARLISLE, P71 17013 NOTICE C11"JUDGMENTIFTRANSCRIPT `IVIL CASE PLAINTIFF: NAME and ADDRESS rPZTZRB, V'IVXAN 5 ROBIN DR SHIPPZIRSBVRa, PA 17257 L VS. J DEFENDANT. NAME and ADDRESS rH R H 1IOBILZ HOI[Z RMODZLZRS 185 YZMBZRRY COIIIZ 185 309MBIMY C MUM #175 ?ZTTZRS, PL 17319 J Docket No.: CV-0000283-08 Date Filed: 11/03/08 THIS IS TO NOTIFY YOU THAT: Judgment: DZl10LT JUDfBET PLTF (Date of Judgment) 12/02/08 © Judgment was entered for: (Name) PZTZRS, VIVI= © Judgment was entered against: (Name) H & X MOBILZ HOIIIIZ RZKODZLMS in the amount of $ 3,153.5 Defendants are jointly and severally liable. Damages will be assessed on Date & Time This case dismissed without prejudice. Amount of Judgment Subject to Attachment142 Pa.C.S. § 8127 $ -Portion of Judgment for physical damages arising out of residential lease $ Amount of Judgment $ 3,000.00 Judgment Costs $-93.35 Interest on Judgment $ 60- Attorney Fees $ .00 Total $ 3,153.50 Post Judgment Credits $ Post Judgment Costs $ Certified Judgment Total $ ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY RUNG A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENTITRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE JUDGMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. Date , Magisterial District I certify that this is a true and correct copy of the record of the proceedings containing the judgment. Date , Magisterial District Judge My commission expires first Monday of January, 2012. SEAL AOPC 315-07 DATZ PRI]ITED: 12/03/08 8:39:00 AM EXHIBIT B Ay r MOBILE Name (A,6 l ?`Z« HOME Street: _ t'_ R u , .? REMODELERS City/StateMp: SINCE 1971 INSURANCE CWMS FAST SERVICE 185 NEWBERRY COMMONS, ,#175, ETTERS, PA 17319 ? r Phone: ??[ FREE ESTIMATES • CALL 1-800-927-5014 ?2 Date: PAGE 1 OF- S'.0 VO Cw v17?t ?t'etii /f Z' P V1 I/We the undersigne hereinafter referred to as the "Owner" hereby employ H & M Remodelers, hereinafter referred to as the "Contractor," to furnish labor or materials or both, necessary to perform the work hereinafter set forth on the premises of the Owner located at Avenue or Street in the City of , County of and State of Pennsylvania. clev 4:7 1)- 46 a Customer is responsible for all park and building permits. In consider of the said work to be furnished by the Contractor, the Owner agrees to pay th ontractothe cash price of Dollars ( ?7J as follows: PAYl F $ BALANCE OF $? DUE UPON COMPLETION OF SAID WORK I.1 I is the r sponsibility of the customer to examine the job upon completion and before full payment is issued and to have any correcti s fixed, ,6r written out to be fixed and signed by the salesman. Any problems with the material or products sold will be the responsibility of the manufacturer. A thirty-day warranty after work is completed applies to workmanship, at the discretion of H&M Mobile Home Remodelers. This Contract shall not be binding upon the Contractor until accepted by the Contractor in writing. Any work not specified in the Contract shall be paid for by the Owner on a labor plus materials basis in accordance with accepted pricing policies of the Contractor. The Contractor is not responsible for the contents of the home. It is agreed that if the Owner cancels this Contract before the commencement of the work and after any periods of rescission have expired according to applicable Federal, State or local laws, and regulations, the Owner agrees to reimburse the Contractor for all costs and expenses incurred by Contractor incidental to Contractor's performance of this Contract, as well as Contractor's loss of profits as a result of Owners breach of this Contract. It is agreed that Contractor shall have the right at any time to sell, transfer or assign this Contract and the monies to be paid under the Contract. The Owner hereby certifies that the Owner has read this entire Agreement, that the terms and conditions and the meaning thereof have been explained to the Owner and that the Owner fully understands them; that there is no understanding between the parties hereto, verbal or otherwise, than that contained in this Agreement, and that no statements, promises, commitments or representations not contained in this Agreement have been made by the Contractor, or by any of its agents to induce the Owner to execute this Agreement, and the Owner agrees that the said Contractor is not responsible nor bound by any representations or commitments not contained in this Agreement, made by any of its agents, unless the same be reduced to writing and signed by the Contractor. ANY CONTROVERSY OR CLAIM ARISING OUT OF, OR RELATING TO THIS CONTRACT, OR ANY BREACH THEREOF, SHALL BE DETERMINED BY THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA AND THE PARTIES AGREE THAT THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA SHALL HAVE EXCLUSIVE JURISDICTION WITH RESPECT TO ANY SUCH CLAIMS. CUSTOMER IS RESPONSIBLE FOR ALL ATTORNEY FEES. If there be more than one Owner, they shall be jointly and severally liable hereon. This Contract shall bind the heirs, executors, administrators, successors and assigns of the parties hereto. THE OWNER MAY CANCEL THIS TRANSACTION AT ANY TIME PRIOR TO MIDNIGHT OF THE THIRD BUSINESS DAY AFTER THE DATE OF THIS TRANSACTION. IN WITNESS WHER to i be legally bound, the caner has hereunto set the hand and seal of this Owner this day of IT J_f 2 and the Owner hereby acknowledges receipt of a copy of this Contract. ACCEPTED AND APPROVED: o (SEAL) H & M Mobile elers (SEAL) By o.?. (SEAL) (TI'T'LE) (SEAL) 0- SPECIFICATIONS OF JOB-NO ADDITIONAL WORKWILL BE CONSIDERED UNLESS HEREINSPECIFIED. EXHIBIT C vivtnH peas - W-2 6 3 61 313 5 ROBIN DRIVE - SHIPPENSBURG, PA 17257 DATE PAY ORDM of $ j 0 pw -?. -lb,- DOLLARS FMM&TBank Irmo r 1:0313029551: - 97448087n'636 Z r?.p gg? ? ? 4 y i A C, P- c j n:? 3 e fr C e`G ' Y x fr 4 •r' ' S d cs.;s n• - Posting Date Research Seq # Account # Check/Store # DB/CR Dollar Amount Bank # Branch # Deposit Acct # Record Type # 2008 Aug 19 5700587162 97448087 6361 DB $3,000.00 096 06822 1016825007 01 http://pc-ncrwebl.mandtbank.com/inquiry/servlet/inquiry Q G x? .T m C .9 T ? y N r z M F? M z C O s R S I 10/24/2008 EXHIBIT D PEN ]TATC The Dickinson 9W School of Law Elder Law and Consumer Protectdon Clinic A service to the community by students from The Dickinson School of Law of The Pennsylvania State University The Dale F. Shushan Community Law Center 45 North Pitt Street Carlisle, PA 17013 Office: 717-240-5152 or 717-240-5102 Fax: 717-241-3596 October 7, 2008 H&M Mobile Home Remodelers 185 Newberry Commons #175 Etters, PA 17319 Re: Vivian Peters To Whom It May Concern: Our client, Vivian Peters, has retained the Elder Law and Consumer Protection Clinic to represent her in this contractual dispute. Vivian Peters had contracted with your company to install a sun room in her mobile home, putting a down payment of $3,000.00 towards the installation. Unfortunately, the approval sought by your company to install the sun room on Ms. Peter's property was denied by Country Side (the mobile home community where Ms. Peters resides). There have been multiple attempts to collect the down payment of $3,000.00 by Ms. Peters and her family. We are writing you today in attempt to collect the $3,000.00 down payment made by Ms. Peters. In the event we cannot resolve this issue out of court, we intend to pursue a law suit against your company. Please contact me as we are interested in amicably resolving this matter. Sincerely, tTatyana higirins Douglas R Roeder, Esq. Certified Legal Intern Supervising Attorney cc: Vivian Peters An Equal Opportunity University VERIFICATION I verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unworn falsification to authorities. Date: Vivian Peters CERTIFICATE OF SERVICE I, Brian McMorrow Certified Legal Intern with the Elder Law Clinic, The Dickinson School of Law, The Pennsylvania State University, certify that on January 5th, 2009, I served the foregoing Complaint, by placing a true and correct copy of the same in the United States first class mail, postage prepaid, addressed as follows: Steven Howell, Esq. 619 Bridge Street New Cumberland, PA 17070 Date: Jew 5 ?(jd By: ??'?"-.? Brian McMorrow Certified Legal Intern The Elder Law Clinic The Dickinson School of Law The Pennsylvania State University 150 South College Street Carlisle, PA 17013 9 C".; +v ,? ? ?. °_:, ?d? by "-x ryTka .. i t ..'' ..,q ...?. ._` VIVIAN PETERS, IN THE COURT OF COMMON PLEAS PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA VS. HOWARD J. WELKER, D/B/A H & M MOBILE HOME REMODELERS DEFENDANT NO. 2008 - CV -7251 PRELIMINARY OBJECTIONS TO COMPLAINT To: Vivian Peters c/o Douglas R. Roeder, Esquire Community Law Center 45 North Pitt Street Carlisle, PA 17013-2899 Notice to Plead YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED PRELIMINARY OBJECTION WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. Motion to Strike Complaint Due to Improper Venue 1. Exhibit "B" of the Complaint, which is a true and correct copy of the written contract between the parties, contains the following language regarding venue: ANY CONTROVERSY OR CLAIM ARISING OUT OF, OR RELATING TO THIS CONTRACT, OR ANY BREACH THEREOF, SHALL BE DETERMINED BY THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA AND THE PARTIES AGREE THAT THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA SHALL HAVE EXCLUSIVE JURISDICTION WITH RESPECT TO SUCH CLAIMS. 2. Plaintiff's civil action has been filed in a county other than the forum selected in the written contract which is the York County Court of Common Pleas. 3. Our appellate court has held that a forum selection clause is enforceable if it is freely agreed to even if a party fails to read the clause before signing the contract. Churchill Corp. v. Third Century Inc., 396 Pa. Super. 314, 321-22, 578 A.2d 532, 536 (1990). 4. In 2008 our Superior Court in Stivason v. Timberline Post and Beam Structures Company, 2008 Pa. Super. 88, 947 A.2d 1279 affirmed a trial court's decision to dismiss a complaint filed in Armstrong County when the parties' written contract clearly indicated that "any lawsuit filed in regard to this Agreement shall be venued in Ohio." Id. at 1280. 5. Pursuant to Pa. R.C.P. 1028 (a) (1) and 1006 (e) the Complaint filed in Cumberland County must be dismissed with the case transferred to the York County Court of Common Pleas with the Plaintiff paying all costs and fees for the transfer and removal of the record. Respectfully submitted, By: W o -9 -. -I---- well Law Firm 619 Bridge Street New Cumberland, PA 17070 Supreme Court ID 62063 (717) 770-1277 Attorney for Defendant CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a true and correct copy of the foregoing document was served upon the persons and in the manner indicated below which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure. Douglas R. Roeder, Esquire Community Law Center 45 North Pitt Street Carlisle, PA 17013-2899 BY: Date: January 23, 2009 ?^?, r'a ? .?? ?_y ?7 ? ?? f_w ' .-? i,! ? ! tv" l ?l yf ' ?? -l ` ^ t --•+i.? p may lII IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA VIVIAN PETERS 5 Robin Drive Shippensburg, PA 17257 Plaintiff V. HOWARD J. WELKER D/B/A H&M MOBILE HOME REMODELERS 185 Newberry Commons 4175 Etters, PA 17315 Defendant 0 o a • M l•r? '77 c,n CIVIL ACTION - LAW NO. 2008-CV-7251 PRAECIPE TO MARK SETTLED AND DISCONTINUED To The Prothonotary: lease mark the above-captioned matter settled and discontinued. ?. By: 6_??L Z z Matthew J. Noumoff Douglas R. Roeder, Esquire Certified Legal Intern Attorney I.D. #80016 Elder Law Clinic The Dickinson School of Law The Pennsylvania State University 45 North Pitt Street Carlisle, PA 17013-2899 (717) 240-5152 Attorney for Plaintiff By: Steven Howel , Esq re Atk6rney I.D. #62063 Howell Law Firm 619 Bridge Street New Cumberland, PA 17010 (717) 770-1277 Attorney for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA VIVIAN PETERS 5 Robin Drive Shippensburg, PA 17257 Plaintiff V. HOWARD J. WELKER D/B/A n o c - -n -, err M r ' ' - ' ILI c i : CIVIL ACTION - LAW H&M MOBILE HOME REMODELERS NO. 2008-CV-7251 185 Newberry Commons #175 Etters, PA 17315 Defendant CERTIFICATE OF SERVICE I hereby certify that on February 12010, I served the Plaintiff s Praecipe to Mark Settled and Discontinued by placing true and correct copies of the same in the United States first class mail, postage prepaid, addressed as follows: Steven Howell, Esquire Howell Law Firm 619 Bridge Street New Cumberland, PA 17070 Matthew J. Noumo Certified Legal Intern ?- By:(!?Mx?: k - Douglas R. Roeder, Esquire Attorney I.D. #80016 Elder Law Clinic The Dickinson School of Law The Pennsylvania State University 45 North Pitt Street Carlisle, PA 17013-2899 (717) 240-5152 Attorney for Plaintiff