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HomeMy WebLinkAbout04-1940COMMONWEALTH OF PENNSYLVANIA NOTICE OF APPEAL COURT OF COMMON PLEAS FROM JUDICIAL DISTRICT DISTRICT JUSTICE JUDGMENT Qfj? COMMON PLEAS Na ^ / '• ??V??l NOTICE OF APPEAL Notce 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 MAG. DIST. NO OR NAME OF 0.1 ?'r1EHP.ING/HICH PERFORMANCE IMPORTS $}?_YH4RLES CLEMENT ADDRESS OF AP ILAN UTY U J 3T E ZIP CODE a OF JUDGMENT HARTZDAEE DR., REAR TAMP HILL PA 17011 SrnTT MFHRTNtl) DATE CASE Of (Raftff) t S.MEHRING/HIGfe 1145.74 BRYAN BISHOP vs. PERFORMANCE IMPORTS CLAIM NO SIGNATURE OF APPELLANT OR HIS ATTORNEY OR AGENT CV 19 CV-71094 LT 19 This block will be signed ONLY when this notation is required under Pa. R.C.P.J.P. No If appellant was CLAIMANT (see Pa. R.C.P.J.P. No. 10088. This Notice of Appeal, when received by the District Justice, will operate as a 1001(6) in action before District Justice, he MUST SUPERSEDEAS to the judgment for possession in this case FILE A CO 'thin twent (20) days after ffl' his NO Q AL. Signature of Prothonotary or Deputy PRAECIPE TO ENTER RULE TO FILE COMPLAI L (This section of form to be used ONLY when appellant was DEFENDANT (see Pa. R.C.P.J.P. No. 100 ) in action before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee). PRAECIPE: To Prothonotary Enter rule upon BRYAN BISHOP /j Nof appellee(s) (Common Pleas Na n'y^ f 414 6 f 'rfjit iP1,Y7ithin twenty (20) d after ser ' of RULE: To RRVAN BISHOP appellees. Name of appellees) appellee(s), to file a complaint in this appeal of judgment of non pros of appellant or his attomey Or agent (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 rat file a complaint within this time, a JUDGMENT OF NON PROS WILL BE ENTERED AGAINST YOU. (,3) The date of service of this rule if service was by mail is the date of mailing Date: 11 11 26 , 19 0 y ... ?/! QMD -C 1 r 9nature of Prot o, AOPC 312-M COURT FILE TO BE FILED WITH PROTHONOTARY s 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) , 19 ? by personal service ? by (certified) (registered) mail, sender's receipt attached hereto, and upon the appellee, (name) , on 19-? by personal service ? by (certified) (registered) mail, sender's receipt attached hereto. ? and further that l served the Rule to File a Complaint accompanying the above Notice of Appeal upon the appellee(s) to whom the Rule was addressed on , 19-, ? by personal service ? by (certified) (registered) mail, sender's receipt attached hereto. SWORN (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS DAY OF . 19- Signature of al/iant Signature of official before whom affidavit was made Title of official My commission expires on 19- C) r Dr n 7`? ? C AC P APR-H-2014 FFI 01:17 F01 COMMONWEALTH OF PENNSYLVANIA COUNTY OF: CUMSERLAM Meg. Di.t. Na: 09-1-01 DJ Name; Hon. CHARLES A. CLEMENT, Ad ra ' 40.0 BRIDGE STREET OLDS°TOWNE COMMONS NEW CUMBERLAND, PA T<bPhane:1717i 774-5989 ATTORNEY DEF PRIVATE JOSEPH A.` CURCILLO, ESQ. 3964 LEXINGTON ST HARRISBURG, PA 17109 JR. SUITE 3. 17070 P. 001 NOTICE 0' JUDGMENT/TRANSCRIPT 3IVIL CASE PLAINTIFF: NAME,and ADDRESS BISHOP B Y , R AN 263 REDWOOD LANE CARLISLE, PA 17013 L J VS. DEFENDANT: NAME and ADQRE86 FS MEHRING/HIGH PERFORMANCE IMPORTS-1 3537 HARTZDALE DRIVE, REAR CAMP HILL, PA 17011 J DocketNo.: CV-0000071-04 Date Filed: 2/12/04 TM IS TO NOT YOU THAT: Judgment: FOR PT,ATNTIFF 0 Judgment was entered for, (Name) _,BTSTl BRYAN ?X Judgment was entered against: (Name) 9 MRHRTNG/RIGA PRRPO??MANCE._I RQRTS in the amount of $ 1,14r; 74 on: (Date of Judgment) 4/06/04 F Defendants are jointly and severally, liable (Date & Time) Damages will be assessed on; Amount of Judgment $, ,1, 074.74 71.00 Judgment Casts $ Interest on Judgment $ .00 prejudice. C This case dismissed without Attorney Fees $ .00 Total $ 1,145.74 Amount of Judgment Subject to ' Attachment/42 Pa.C 5 § 8127 $ Post Judgment Credits $ E Portion of Judgment for physical Post Judgment Costs $ damages arising out of residential lease $ Certified Judgment Total $T^? ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING 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 DISTRICT JUSTICES, 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 O FURTHER PROCESS MAY BE ISSUED BY THE DISTRICT JUSTICE UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE IN,T l1 S b Ir-,' E 4UDGMENT MAY FILE _A..REDUES-LFOR.ENTRY-OE.SATISEACTION..WITH THE-DISTRIC.T..JUST.ICE.IF.THE..JUDG??IENT8 Obi-RAYS IN fULL,.SETTLES,....-...._.. OR OTHERWISE COMPLIES WITH THE JUDOMENT y APR w 6 200# '' t ^ *, f Data .. Distnbt Justice 1 certify that this is a true and correct copy of the record of the proceedings' Cg' l Ling^th9 judgment.. Date ,,,District Justice My commission expires first Monday of January, 2008 . SEAL AOPC315-o3 DATE PRINTED: . 4/06/04 9:38:48 AM' COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS JUDICIAL DISTRICT NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT COMMON PLEAS Nw ? V I 1 l`16 (21(.),C`?. 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 Jhe date and in the case mentioned below. CLFPIFNT S.1.IEHRING/HI CV 12 C'V071094 LT 19 This block will be signed ONLY when thisrotation is required under Pa. R.C.P.J.P. No. 1008B. This Notice of Appeal, when received by the District Justice, will operate as a SUPERSEDEAS to the judgment for possession in this case Signature of Rothonotary or Deputy If appellant was CLAIMANT (see Pa. R.C.P.J.P. No. 1001(6) in action before District Justice, he MUST FILE A PIRAECIPE TO ENTER RULE TO FILE COMPLAIKy1?,AN1 (This section of form to be used ONLY when appellant was DEFENDANT (see Pa. R.C.P.JP. No. IF NOT USED, detach from copy of notice of appeal to be served upon appellee). PRAECIPE: To Prothonotary Enter rule upon F3K X Ail n I ti H' )i+ Nm of off appelleefs) (Common Pleas Na ? ---/ 7///yy4f?2 ("r i' iri?Y ithin twenty (20) days after in action before District Justice. oppellee(s), to file a complaint in this appeal of judgment of non pros. of appellant or his allomey a RULE: Ta?- BRYAN ameof appellees) L, (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. 11 (2) If you db"not file a complaint within this time, a JUDGMENT OF NON PROS WILL. BE ENTERED AGAINST YOU. (3) They date of service of this rule if service was by mail is the date of mailin^ Date:. T?Alf3.l?LL, 19--aUUtI fl P 312-8 COURT FILE 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 l AFFIDAVIT: I hereby swear or affirm that I served ( a copy of the Notice clf,F)p)peal, Cyommon Pleas No. v Luri jtte District Justice designated therein on (date of service) l-A 19 ? b ersonal service b (certiI..?) (registered) mail, sender's U)n recei t ched hereto, and upon the appellee, (nam) I 0 ( ?11_ J on , 19? by personal service by (certi ied) (registered) mail, sender's receipt attached hereto. ( and further that Iserved theRule to.'le o I int accompanying the above Notice of Appea on the appellee (s) to whom the Rule was addressed on , 19? ? by personal service (by (certified) (registered) mail, sender's receipt attached hereto. SWORN (AFFIRMED). AND SUBSCRIBED BEFORE ME?I THIS Y&DAY OF-MQ 9UZAA= Signat re of official before om affidavit was myde Sign ra of affiant Title of official / My commission expires on -? '19 NOTARIAL SEAL JOHN R. BEINHAUR Notary Public Lower Paxton Twp.. Dauphin County My Commission Expires March 13, 2007 C O O r 3 - ? nth t CJ7 ? ' tV to Ti .R a 0 - °as_a9e 8 ? ? O Certified Fee O C3 p Patu-n R3ciept F=e _ Postmark (E dorenent Rayuired) Hera I R rstr cte ] Eelivary Fa I--r - ) (Erdrremerr_ Required D IL- r9 Tctal Pcstzge & Fees rr1 - 1 ' Sir, -eta . orYC BOx NO_ 1r°?1xr-.J?t ¦ Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. ¦ Print your narne 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. A. Signature X B. Received by (Printed Name) C. D. Is delivery address different from item 1? If YES, enter delivery address below: 0 Agent 0 Addressee )ate of Delivery ? Yes 0 No 1. Article Addressed to N P- U vj r7 a_r 0 DO Cdr 1 dcg 3. Service Type 1 Certified Mail 0 Express Mail Registered etum Receipt for Merchandise 0 Insured Mal C.O.D. 14. Restricted Delivery? (Fxba Fee) 0 Yes 2. Article Numher (7ranster from sarvlce t 7003 1680 0005 0 011 6846 PS Form 3811, August 2001-? Domestic Return Receipt 10259s02-M-tsaa UNITED STATES POSTAL SERVICE Firit-Class Mail Paid USP d No. G10 • Sender: Please print your name, address, and ZIP+4 in this box I 9EINNAUR & CURCILLO 3964 LEXINGTON ST. f HAR {7187) 651x-9 00 7109 I I I' r I I un ?. . . I .n p Postage $ ul p Certified Fee C3 C3 Retum Reciept Fee Postmark (Endarsement Required) Here M Restricted Delivery Fee cO (Endorsement Required) D . Total Postage a Fees $ M ° sent r St r o.; -- r`- reet, r? ... ° or ox a. city, smre, zi Form 3900, stm?twno ¦ complete items 1, 2, and 3. Also compl?e Item 4 if ResNoted Delivery is desired. name and address on the reverse Ill print so that your ur can ratum the card to you. lard to the back of the Md"Plece, Attar {his or on the from 1 space permItS. 1, Article Addressed to: ?' pig ?Oa,_ Pa I-1013 p, Article Number 700 (Pander from seryk- ? 3811, August 2001 pS Form I ( UNITED STATES POSTAL SERVICE A. Signature ? Agent X e c. Data of Delivery B. Received by (Printed Nam) ? Yes D, Is delivery addresa different from Rem 17 No ;Z [3 It YES, ante, delivery address below: g, CwertRelled led Mall i-(Express Mail '!?? ? Registered Retum Receipt for Merchandise ? stril Matte Cltj - ; Fee) ? Yes 4. Restricted Delrvery7 (Fx 1680 0005 0011 102595-02-M-1540 Domestic Return Receipt Firs':-Class Mail Pose age & Fees Paid USPS Permit No. G10 • Sender. Please print your name, address, and ZIP+4 in this box I I I BEINHAUR & CURCILLO 3964 LEXINGTON ST. HARRISBURG, PA 17109 I (717) 651-9100 Bryan Bishop IN THE COURT OF Plaintiff COMMON PLEAS CUMBELAND COUNTY, PENNA. No. 04-1940 CIVIL CIVIL ACTION-LAW v. S. Mehring/High Performance Imports Defendant NOTICE TO DEFEND 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 objectives 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 my 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 2 Liberty Avenue Carlisle, PA 17013 800-990-9108 Bryan Bishop IN THE COURT OF Plaintiff COMMON PLEAS CUMBELAND COUNTY, PENNA. No. 04-1940 CIVIL CIVIL ACTION-LAW V. S. Mehring/High Performance Imports Defendant COMPLAINT 1. I paid HPI an amount of $6700 on the 270' of December. I was guaranteed everything would be done in 2 weeks. The deadline was January 12`a. We had arranged my car to be dropped off ahead of time because I needed it to be completed because my classes started the 15a' of January. 2. After the first week my car should have been stripped and the engine bay painted. It was not. My car had been sitting in the exact place I parked it. 3. After seeing that, I wanted my car and my money back because my car wasn't being worked on as scheduled and it should've been half way completed. 4. I was told I couldn't have my car and we had a contract that would be fmished as scheduled. 5. The engine was pulled and it sat in the shop untouched and no parts ordered for weeks. 6. I got excuse after excuse as to why my car hadn't been worked on. 7. After waiting 3 times as long as it should have taken. to finish my car, I decided to sue for all the wrong HPI has done. My car still sat as we waited for court and had not been finished. 8. I had called to see if they had made any progress on my car and I was told my car was not being worked on. I asked for it back since they weren't working on it but he would not let me have it. 9. 1 was able to retrieve my car from HPI only after a State Constable went to HPI to talk him into letting me have my car back. He also dried to get me to drop the lawsuit but I told him no. 10. When I picked up my car in pieces along with two guys from work, we went over the parts and found I didn't receive my cold air intake, my battery, and carpet. Not only were parts to my car missing, but also I was charged for parts I didn't receive and he would not go over the parts I was taking from his shop. I figured it was so he could do what he did and overcharge me. 11. When I did go back to pick up a reftmd check I did get the carpet to my car but the other parts I never received. On the new bill I got, I was charged for the new parts from Bobby Rahal Honda a total of $490 for the complete Pedal Assembly. I have included what you get from Bobby Rahal for $490 and I have a picture of what I got for $490. 1 got junkyard parts. 12. I was charged for shipping and an axle I never received. Another discrepancy on this new bill was the price of axles went up $20 a piece and I was charged a $10 environmental charge. We never talked about these charges he sprung on me. 13. On the very first bill he wrote all of the prices in the "actual amount" column and not the "estimated amount" column. Then he tries to say that the bill was just an estimate. 14. I tried to ask what he was trying to pull with this new bill but he would not talk, so I took the check and left. 15. I am asking for $7,300 for overcharged prices, court costs, stolen intake, stolen battery, missing parts, towing expense and hoist to move the engine, stereo install, and lost wages. 16. We had a contract with a deadline and it should have been fulfilled. I deserve every bit of the amount I'm asking. VERIFICATION I, Bryan Bishop, Plaintiff in the foregoing action, hereby affirm that the facts and matters set forth in the foregoing Complaint are true and correct to the best of my knowledge, information, and belief. The undersigned understands that the statements made therein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unworn falsification to authorities. t Ban Bishop May 10, 2004 N C 4?1 a O _r r .n ` 1 7 -r, r;.? c7c'S W -< IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION BRYAN BISHOP Plaintiff V. S. MEHRING and HIGH PERFORMANCE IMPORTS, INC., Defendants NOTICE TO PLEAD You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully submitted, BEINHAUB-*-C11RCI] CIVIL ACTION - LAW NO. 04-19410 CIVIL JURY TRIAL DEMANDED Type of Filing: ANSWER TO COMPLAINT Filed on Behalf Of: High Performance Imports, Inc. Counsel of Record: Joseph A. Cwrcillo, III, Esquire Supreme Court No. 44060 BEINHAUR & CURCILLO 3964 Lexington Street Harrisburg, PA 17109 (717) 651-9100 Fax: (717) 651-9200 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION BRYAN BISHOP CIVIL ACTION - LAW Plaintiff V. S. MEHRING and NO. 04-1940 CIVIL HIGH PERFORMANCE IMPORTS, INC., Defendants JURY TRIAL DEMANDED DEFENDANT HIGH PERFORMANCE IMPORTS. INC.'S ANSWER TO COMPLAINT AND NOW COMES, the Defendant High Performance Import, Inc., by and through its Attorney Joseph A. Curcillo, III, Esquire, of Beinhaur and Curcillo, and respectfully represents as follows in Answer to Plaintiff's Complaint: Admitted in part: denied in part. It is admitted that on December 27, $6,700 was paid to HPI (High Performance Imports, Inc.); Plaintiff s reference to a guarantee is specifically denied. All other allegations in paragraph 1 state a compound averment to which no response is required and on such basis denies, both generally and specifically each and every such allegation in the whole thereof, inclusive. -1- 2. Denied. The answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment, and on such basis denies, both generally and specifically each and every such allegation in the whole thereof, inclusive and proof thereof is demanded at time of trial. 3. Denied. The answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment, and on such basis denies, both generally and specifically each and every such allegation in the whole thereof, inclusive and proof thereof is demanded at time of trial. 4. Denied. The answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment, and on such basis denies, both generally and specifically each and every such allegation in the whole thereof, inclusive and proof thereof is demanded at time of trial. Admitted in part: denied in part. It is admitted that the engine was removed. As to the balance of the allegation, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or accuracy of these allegations, and therefore said allegations are denied. 6. Denied. The answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment, and on such basis denies, both generally and specifically each and every such allegation in the whole thereof, inclusive and proof thereof is demanded at time of trial. Admitted in part: denied in part. It is admitted that Plaintiff initiated Court Proceedings against Defendant on February 12, 2004 with District Justice Charles A. Clement, Docket Number CV-0000071-04. As to the balance of the allegation, answering Defendant is -2- without knowledge or information sufficient to form a belief as to the truth of the averment, and on such basis denies, both generally and specifically each and every such allegation in the whole thereof, inclusive and proof thereof is demanded at time of trial. 8. Denied. After reasonable investigation, Defendant specifically denies the truth or accuracy of these allegations, and therefore said allegations are denied and proof thereof is demanded at time of trial. 9. Admitted in part: denied in part. It is admitted that Plaintiff secured the services of a State Constable to retrieve the car from HPI, but it is denied that such action was necessary. As to the balance of the allegation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment, and on such basis denies, both generally and specifically each and every such allegation in the whole thereof, inclusive and proof thereof is demanded at time of trial. 10. Denied. After reasonable investigation, Defendant specifically denies the truth or accuracy of these allegations, and therefore said allegations are denied and proof thereof is demanded at time of trial. 11. Denied. After reasonable investigation, Defendant specifically denies the truth or accuracy of these allegations, and therefore said allegations are denied and proof thereof is demanded at time of trial. 12. Admitted in part: denied in part. It is admitted that Plaintiff was charged $95.00 per axle on the second bill ($20.00 more than on the first bill); yet, Plaintiff fails to reference specific language on the first bill that unequivocally provides, "Possibly $200.00 More" - That statement evidences that Notice was given to Plaintiff by Defendant for any and all allowances not known to either part at the time the first bill was drafted. Hence, the $40.00 additional costs is an amount less than the $200.00 allowance. As to the balance of the allegation, answering -3- Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment, and on such basis denies, both generally and specifically each and every such allegation in the whole thereof, inclusive and proof thereof is demanded at time of trial. 13. Denied. After reasonable investigation, Defendant specifically denies the truth or accuracy of these allegations, and therefore said allegations are denied and proof thereof is demanded at time of trial. No response by answering Defendants is required to the extent that the allegations contained in this Paragraph constitute allegations of wrongdoing or fraud against answering Defendant, however, said allegations are specifically and unequivocally denied. 14. Denied. After reasonable investigation, Defendant specifically denies the truth or accuracy of these allegations, and therefore said allegations are denied and proof thereof is demanded at time of trial. 15. Denied. Plaintiff is asserting a demand by law (a "Wherefore clause") to which no response is deemed required. To the extent a response is deemed necessary, the allegation is denied. 16. Admitted in part: denied in part. To the extent Plaintiff is implying that HPI agreed to perform modifications to Plaintiff s automobile in exchange for payment, that is a contract, the paragraph is admitted. To the contrary, in so far as Plaintiff avers breach, Defendant specifically denies the truth or accuracy of these allegations, and therefore said allegations are denied and proof thereof is demanded at time of trial. Further, Plaintiff is asserting a demand by law (a "Wherefore clause") to which no response is deemed required. To the extent a response is deemed necessary, the allegation is denied. WHEREFORE, the defendants, collectively and respectfully requests that this Court enter judgement in their favor and against Plaintiffs and award them costs and attorneys' fees and any other relief this court deems just and proper. -4- NEW MATTER 17. The responses to the Plaintiff s Complaint contained. in Paragraphs 1 through 16 are incorporated herein by reference as if set forth in their entirety. 18. That S. Mehring is an adult individual. 19. High Performance Imports, Inc. is a Pennsylvania corporation incorporated on December 21. 2000. 20. It is further averred that S. Mehring was at all times relevant hereto acting as an employee, agent and or officer of High Performance Imports, Inc. 21. The alleged acts or omissions of answering Defendant were not the proximate cause of the alleged injuries to the Defendant. WHEREFORE, the defendant, respectfully requests that this Court enter judgement in their favor and against Plaintiffs and award them costs and attorneys' fees and any other relief this court deems just and proper. AFFIRMATIVE DEFENSES 22. Answering Defendants hereby incorporate by reference herein Paragraph 1 through 21 above as if fully set forth herein. 23. Without vouching for its accuracy, and denying all allegations of liability against answering Defendants contained herein, answering Defendant, High Performance Imports, Inc., hereby incorporate by reference the allegations contained in the complaint against it as if fully set forth herein. -5- First Affirmative Defense 24. As and for a separate and distinct affirmative defense, this answering Defendant alleges that the injuries and damages, if any, sustained by Plaintiff, are the direct result of a risk knowingly and voluntarily assumed by Plaintiff as a result of his actions. Second Affirmative Defense 25. As and for a separate and distinct affirmative defense, this answering Defendant alleges that the injuries and damages, if any, sustained by Plaintiff, were the direct result of the fault and negligence of Plaintiff. Third Affirmative Defense 26. As and for a separate and distinct affirmative defense, Plaintiff's claims against the Defendants are barred in whole or in part because any damages that have allegedly been suffered by Plaintiff were not caused by any of the alleged actions of the Answering Defendant, but by Plaintiffs own actions. Fourth Affirmative Defense 27. As and for a separate and distinct affirmative defense, this answering Defendant alleges that the injuries and damages, if any, sustained by Plaintiff, are the direct result of justifiable actions taken by the defendant corporation. -6- WHEREFORE, the defendants, collectively and respectfully requests that this Court enter judgments in their favor and against Plaintiff and award them costs and attorneys' fees and any other relief this court deems just and proper. Respectfully submitted, Xurcillo, III, Esquire Court No. 44060 39 Lexington Street H isb g, PA 17109 (717) 651-9100 Date: / U Q [y 7- AFFIDAVIT OF SERVICE I, Joseph A. Curcillo, 111, hereby certify that a true and correct copy of the forgoing motion was served upon the Following Parties by the method stated as follows: BY U.S. MAIL FIRST CLASS Bryan Bishop 263 Redwood Lane Carlisle, PA 17013 Date: l Q Weph A. urcillo, III creme rt No. 44060 64 ington Street u' rsburg, PA 17109 17) 651-9100 -8- CffJ f? I' ?l 1 1, `) ?l7 _,I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION BRYAN BISHOP CIVIL ACTION - LAW Plaintiff V. S. MEHRING and HIGH PERFORMANCE IMPORTS, INC., NO. 04-19440 CIVIL Defendants JURY TRIAL DEMANDED Type of Filing: Preliminary Objections to Complaint NOTICE TO PLEAD You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. Filed on Behalf Of: S. MEHRING Counsel of Record: Joseph A. Curcillo, III, Esquire Supreme Court No. 44060 BEINHAUR & CURCILLO 3964 Lexington Street Harrisburg, PA 17109 (717) 651-9100 Fax: (717) 651-9200 Respectfully submitted, BEINHAUR & CURCILLO IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION BRYAN BISHOP CIVIL ACTION - LAW Plaintiff V. S. MEHRING and NO. 04-1940 CIVIL HIGH PERFORMANCE IMPORTS, INC., Defendants JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF DEFENDANT S. MEHRING AND NOW COMES S. MEHRING by and through his Attorney, Beinhaur and Curcillo, and pursuant to Pa R.Civ.P 1028, preliminarily object to the Plaintiff's Complaint as follows: 1. This action at law was filed against the Defendant at the above term and number on or about May 14, 2004, and received by counsel thereafter by regular mail. The Complaint also names High Performance Imports, Inc., a Pennsylvania Corporation. INSUFFICIENT SPECIFICITY IN A PLEADING, Pa.R.C.P. 1028(a)(3) A. Generally 2. Pa R.Civ.P 1028(a)(3) authorizes Preliminary Objections for "insufficient specificity in a pleading". -2- 3. Pa R.Civ.P 1019(a) requires "the material facts on which a cause of action or defense is based shall be stated in a precise or summary form". Furthermore, Pa R.Civ.P 1019(f) requires that averments of time, place and items of special damage shall be specifically stated. 4. None of the Plaintiff's claims set forth the basis of action against S. MEHRING, individually, and there are no averments setting forth the specific time or place when the Plaintiff and S. MEHRING, individually entered into an agreement whereby S. MEHRING, individually, became obliged or liable to the Plaintiff. 5. While not admitting to the truth of any of the averments in the Complaint, the Defendants maintain that even were the averments true, they do not state a claim against S. MEHRING, individually, upon which relief can be granted. B. INSUFFICIENT SPECIFICITY AS TO CLAIMS AGAINST S. MEHRING 6. Paragraphs 1 through 5 are incorporated herein by reference as if fully set forth in their entirety and made a part hereof. 7. The Complaint does not allege any action, or inaction on the part of S. MEHRING, individually. 8. The Complaint lacks specific allegations as to the actions of S. MEHRING, individually. WHEREFORE the Defendant S. MEHRING respectfully requests that this Court dismiss the Complaint as it fails to plead the averments with sufficient specificity as required by Rule 1019(a) and Rule 1019(b) or in the alternative, dismiss the Complaint as against S. MEHRING, individually, as it fails to plead the averments with sufficient specificity as required by Rule 1019(a) and Rule 1019(b) against S. MEHRING, individually. -3- II. LEGAL INSUFFICIENCY OF PLEADING (DEMURRER) PA.R.C.P. 1028(aa)(4) A. Generally 9. Paragraphs 1 through 8 are incorporated herein by reference as if fully set forth in their entirety and made a part hereof. 10. Pa.R.Civ.P 1028(a)(4) authorizes Preliminary Objections for legal insufficiency of a Pleading. 11. Pa R.Civ.P 1019(a) requires that the "material facts on which a Cause of Action or Defense is based shall be stated in concise and summary form". 12. Furthermore, Pa.R.Civ.P 1019(f) requires that "averments of time and place and items of special damage be specifically stated". 13. None of the Plaintiffs claims set forth the basis of an action against S. MEHRING, individually, and there are no averments setting forth the specific; time or place when Plaintiff and S. MEHRING, individually entered into a contractual relationship whereby S. MEHRING, individually made representations to the Plaintiff in a capacity other than as agent for the defendant Corporation.. 14. While not admitting the truth of any averments in the Complaint, the Defendants maintain that even were the averments true, they do not state a claim upon which relief can be granted against S. MEHRING, individually. WHEREFORE the Defendants S. MEHRING respectfully request that this Court dismiss the Complaint against S. MEHRING for failure to state a claim upon which relief can be granted. -4- B. Legal Insufficiency of Pleading as to S. MEHRING, individually 15. Paragraphs 1 through 14 are incorporated herein by reference as if fully set forth in their entirety and made a part hereof. 16. The Complaint fails to provide a legal basis to support a claim of breach of contract by S. MEHRING, individually. WHEREFORE the Defendant S. MEHRING respectfully requests that this Court dismiss the Complaint against S. MEHRING for failure to state a claim upon which relief can be granted. Respectfully submitted, BEINHAUI34c-CURCI Date: VO 1 0 >i6p-h A<Curcillo, 111, Supreme Court No. 441 3964 Lexington Street' Harrisburg, PA 17169 (717) 651-9tW -5- AFFIDAVIT OF SERVICE I, Joseph A. Curcillo, III, Esquire, hereby certify that I am on this day serving a copy of the foregoing document upon the person (s) and in the manner indicated below. Service by First-Class Mail, Postage Prepaid, and Addressed as Follows: Bryan Bishop 263 Redwood Lane Carlisle, PA 17013 DATED: r,? c.? i._ co L. ?? l,.7 _? CJ 'Yl --{ -? T rill T l 1? `:.??.,1 I 1..- ?7 ?n I Curtis R. Long Prothonotary nice of tb, protbonotarr (CumrberCanb (fountp Renee K. Simpson Deputy Prothonotary John E. Slike Solicitor D ? 14CIVIL TERM ORDER OF TERMINATION OF COURT CASES Tx DAY OF NOVEMBER 2007 AFTER MAILING SE NOTICE OF AND NOW THIS 5 RECEIVING NO RESPON INTENTION TO PROCEED AND WITH PRENDICE IN ACCORDANCE WITH PA CASE IS HEREBY TERMINATED R C P 230.2. BY THE COURT, CURTIS R. LONG PROTHONOTARY Square Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6573 One Courthouse