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HomeMy WebLinkAbout09-0745IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA VICKI PIONTEK 951 ALLENTOWN ROAD Cq- 7q5 bva-7erfn LANSDALE, 19446 Plaintiff CIVIL ACTION LAW Vs. MESSERLI AND KRAMER, P.A. and WILLIAM F. MESSERLI and ROSS E. KRAMER Jury Trial Demanded Various Addresses Including But Not Limited to the following 1800 5TH STREET TOWERS 150 SOUTH 5TH STREET MINNEAPOLIS, MN 55402 alternate address 450 LEAGUE OF MINNESOTA CITIES BUILDING 145 UNIVERSITY AVENUE WEST SAINT PAUL, MN 55103 alternate address 3033 CAMPUS DRIVE, SUITE 250 PLYMOUTH, MN 55441 Defendants 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 THE 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 OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE DEFENDANT. 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. PA BAR ASSOCIATION P.O. BOX 186 HARRISBURG, PENNSYLVANIA 17018 717-238-6715 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA VICKI PIONTEK 951 ALLENTOWN ROAD LANSDALE, 19446 Vs. MESSERLI AND KRAMER, P.A. and WILLIAM F. MESSERLI and ROSS E. KRAMER Plaintiff CIVIL ACTION LAW n2v. o 1? - -7 YY &,?.( 7"c Jury Trial Demanded Various Addresses Including But Not Limited to the following 1800 5TH STREET TOWERS 150 SOUTH 5TH STREET MINNEAPOLIS, MN 55402 alternate address 450 LEAGUE OF MINNESOTA CITIES BUILDING 145 UNIVERSITY AVENUE WEST SAINT PAUL, MN 55103 alternate address 3033 CAMPUS DRIVE, SUITE 250 PLYMOUTH, MN 55441 Defendants COMPLAINT INTRODUCTION 1. This is an action for damages brought by an individual consumer for Defendant's violations of the Fair Debt Collection Practices Act, 15 U.S.C. 1692, et seq. (hereinafter "FDCPA") IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVANIA VICKI PIONTEK 951 ALLENTOWN ROAD LANSDALE, 19446 Plaintiff CIVIL ACTION LAW Vs. MESSERLI AND KRAMER, P.A. and WILLIAM F. MESSERLI and ROSS E. KRAMER Jury Trial Demanded Various Addresses Including But Not Limited to the following 18005 TH STREET TOWERS 150 SOUTH 5TH STREET MINNEAPOLIS, MN 55402 alternate address 450 LEAGUE OF MINNESOTA CITIES BUILDING 145 UNIVERSITY AVENUE WEST SAINT PAUL, MN 55103 alternate address 3033 CAMPUS DRIVE, SUITE 250 PLYMOUTH, MN 55441 Defendants 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 THE 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 OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE DEFENDANT. 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. PA BAR ASSOCIATION P.O. BOX 186 HARRISBURG, PENNSYLVANIA 17018 717-238-6715 IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVANIA VICKI PIONTEK 951 ALLENTOWN ROAD LANSDALE, 19446 Plaintiff CIVIL ACTION LAW Vs. MESSERLI AND KRAMER, P.A. : and WILLIAM F. MESSERLI and ROSS E. KRAMER Jury Trial Demanded Various Addresses Including But Not Limited to the following 1800 5TH STREET TOWERS 150 SOUTH 5TH STREET MINNEAPOLIS, MN 55402 alternate address 450 LEAGUE OF MINNESOTA CITIES BUILDING 145 UNIVERSITY AVENUE WEST SAINT PAUL, MN 55103 alternate address 3033 CAMPUS DRIVE, SUITE 250 PLYMOUTH, MN 55441 Defendants COMPLAINT INTRODUCTION 1. This is an action for damages brought by an individual consumer for Defendant's violations of the Fair Debt Collection Practices Act, 15 U. S. C. 1692, et seq. (hereinafter "FDCPA") JURISDICTION AND VENUE PARTIES 2. Plaintiff is Vicki Piontek, 951 Allentown Road, Lansdale, PA 19446. 3. Defendants are MESSERLI AND KRAMER, P.A. and WILLIAM F. MESSERLI and ROSS E. KR.AMER Various Addresses Including But Not Limited to the following 1800 5n' STREET TOWERS 150 SOUTH 5TH STREET MINNEAPOLIS, MN 55402 alternate address 450 LEAGUE OF MINNESOTA CITIES BUILDING 145 UNIVERSITY AVENUE WEST SAINT PAUL, MN 55103 alternate address 3033 CAMPUS DRIVE, SUITE 250 PLYMOUTH, MN 55441 4. At all times mentioned herein, Defendants were acting jointly and in concert. 5. Defendant are jointly and severally liable under the doctrines of joint and several liability as well as the doctrine of respondeat superior. COUNT ONE: Violation of Fair Debt Collection Practices Act, 15 USC 1692 et. seq. 6. Plaintiff is a consumer debtor as defined by the Fair Debt Collections Practices Act (FDCPA), 15 USC 1692 et. Seq. 7. Defendants are debt collectors as defined by the FDCPA, 15 USC 1692 et. seq. 8. At all times mentioned herein, Defendants were attempting to collect on an alleged consumer debt against Plaintiff. 9. Defendants purposely, knowing and intentionally violated the Fair Debt Collection Practices Act, 15 USC 1692, et. Seq, on or about May 27, 2008, in or around Dauphin County, Pennsylvania. Defendants contacted Plaintiff, Vicki Piontek, a consumer debtor after Defendants knew or should have known that Plaintiff was represented by an attorney. 10. Such illegal telephone contact is documented in a tape recorded phone conversation on 5- 27-08 that was made with Defendants' knowledge and consent. COUNT TWO: VIOLATION OF Pennsylvania's Fair Trade Extension Uniformity as Act, 73 PS 2270.1 et. seq. and Pennsylvania's Unfair Trade and Consumer Protection Law, 73 PS. 201 et. seq. 11. Plaintiff is a consumer as defined by Pennsylvania's Fair Trade Extension Uniformity as Act, 73 PS 2270.1 et. seq. and Pennsylvania's Unfair Trade and Consumer Protection Law, 73 PS. 201 et. seq.. 12. Defendants are debt collectors as defined by Pennsylvania's Fair Trade Extension Uniformity as Act, 73 PS 2270.1 et. seq. and Pennsylvania's Unfair Trade and Consumer Protection Law, 73 PS. 201 et. seq. 13. The aforementioned misconduct by Defendants on or about May 27, 2008, is also a violation of Pennsylvania's Fair Trade Extension Uniformity as Act, 73 PS 2270.1 et. seq. and Pennsylvania's Unfair Trade and Consumer Protection Law, 73 PS. 201 et. seq. because it was an unlawful attempt to collect a consumer debt. 14. Pennsylvania's Fair Trade Extension Uniformity as Act, 73 PS 2270.1 et. seq. and Pennsylvania's Unfair Trade and Consumer Protection Law, 73 PS. 201 et. seq. prohibit the contacting of a consumer by a debt collector when the debt collector knows that the consumer is represented by an attorney. 15. In the aforementioned instance, Defendants contacted Plaintiff and demanded a payment when Defendants knew or should have known that Plaintiff was represented by an attorney. DAMAGES 16. Plaintiff's actual damages are $1.00 more or less, including but not limited to postage, phone calls, etc. 17. $1,000.00 statutory damages under the FDCPA 15 USC 1692k. 18. $100.00 statutory damages under Pennsylvania's Fair Trade Extension Uniformity as Act, 73 PS 2270.1 et. seq. and Pennsylvania's Unfair Trade and Consumer Protection Law, 73 PS. 201 et. seq. 19. Attorney fees of $1,500.00 at a rate of $250.00 per hour. Services include but not limited to travel to meet with client (4 hours round trip), consultation with client, review of file, editing of complaint, document processing and service of process. Plaintiff's attorney fees continue to accrue as the case move forward. 20. Plaintiff suffered anger, humiliation and emotional distress which Plaintiff believes and avers is worth at least $1,500.00. 21. Punitive damages are also warranted, because it is believed and averred that Defendants' conduct was willful, wanton, intentional and reckless. JURY TRIAL 22. Plaintiff also seeks an injunction against further unlawful collection activity. OTHER RELIEF 23. Plaintiff specifically demands and requests a jury trial in this matter. 24. Plaintiff seeks declaratory relief barring Defendants from contacting her directly when Defendants know that Plaintiff is represented by an attorney. 25. Plaintiff seeks such other relief as this Honorable Court may deem just and proper. Wherefore, plaintiff demands judgment against defendant in the amount of $4,101.00 (actual damages, statutory damages, attorney fees). Plaintiff also seeks punitive damages. Plaintiff also seeks declaratory and injunctive relief, and such other relief as this Honorable Court may deem appropriate. /761-'Ar Frank J. Mc aug ton, Jr., Esq ire Date 1926-1 Apple Ntfecl' Williamsport. PA 17701 570-323-3566 Fax: 866-347-6773 fmcnaughtonjr@hotmaii.com '71 ? ? ? Q s - . ? rr1 "? D C-R ?u A IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA VICKI PIONTEK 951 ALLENTOWN ROAD LANSDALE, 19446 Plaintiff CIVIL ACTION LAW Vs. MESSERLI AND KRAMER, P.A. and 09-745 WILLIAM F. MESSERLI and ROSS E. KRAMER Jury Trial Demanded Various Addresses Including But Not Limited to the following 18005 TH STREET TOWERS 150 SOUTH 5TH STREET MINNEAPOLIS, MN 55402 alternate address 450 LEAGUE OF MINNESOTA CITIES BUILDING 145 UNIVERSITY AVENUE WEST SAINT PAUL, MN 55103 alternate address 3033 CAMPUS DRIVE, SUITE 250 PLYMOUTH, MN 55441 Defendants 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 THE 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 OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE DEFENDANT. 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. PA BAR ASSOCIATION P.O. BOX 186 HARRISBURG, PENNSYLVANIA 17018 717-238-6715 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA VICKI PIONTEK 951 ALLENTOWN ROAD LANSDALE, 19446 Plaintiff CIVIL ACTION LAW Vs. MESSERLI AND KRAMER, P.A. and WILLIAM F. MESSERLI and ROSS E. KRAMER Various Addresses Including But Not Limited to the following 18005 TH STREET TOWERS 150 SOUTH 5TH STREET MINNEAPOLIS, MN 55402 alternate address 450 LEAGUE OF MINNESOTA CITIES BUILDING 145 UNIVERSITY AVENUE WEST SAINT PAUL, MN 55103 alternate address 3033 CAMPUS DRIVE, SUITE 250 PLYMOUTH, MN 55441 Defendants 09-745 Jury Trial Demanded PLAINTIFF'S FIRST AMENDED COMPLAINT INTRODUCTION 1. This is an action for damages brought by an individual consumer for Defendant's violations of the Fair Debt Collection Practices Act, 15 U.S.C. 1692, et seq. (hereinafter "FDCPA"). JURISDICTION AND VENUE PARTIES 2. Plaintiff is Vicki Piontek, 951 Allentown Road, Lansdale, PA 19446. 3. Defendants are MESSERLI AND KRAMER, P.A. and WILLIAM F. MESSERLI and ROSS E. KRAMER Various Addresses Including But Not Limited to the following 18005 TI STREET TOWERS 150 SOUTH 5TH STREET MINNEAPOLIS, MN 55402 alternate address 450 LEAGUE OF MINNESOTA CITIES BUILDING 145 UNIVERSITY AVENUE WEST SAINT PAUL, MN 55103 alternate address 3033 CAMPUS DRIVE, SUITE 250 PLYMOUTH, MN 55441 4. At all times mentioned herein, Defendants were acting jointly and in concert. 5. Defendant are jointly and severally liable under the doctrines of joint and several liability as well as the doctrine of respondeat superior. COUNT ONE: Violation of Fair Debt Collection Practices Act, 15 USC 1692 et. seq. 6. Plaintiff is a consumer debtor as defined by the Fair Debt Collections Practices Act (FDCPA), 15 USC 1692 et. Seq. 7. Defendants are debt collectors as defined by the FDCPA, 15 USC 1692 et. seq. 8. At all times mentioned herein, Defendants were attempting to collect on an alleged consumer debt against Plaintiff. 9. Defendants purposely, knowing and intentionally violated the Fair Debt Collection Practices Act, 15 USC 1692, et. Seq, on or about May 27, 2008, in or around Cumberland County, Pennsylvania by contacting Plaintiff, Vicki Piontek, a consumer debtor, after Defendants knew or should have known that Plaintiff was represented by an attorney. 10. Such illegal telephone contact is documented in a tape recorded phone conversation on 5- 27-08 that was made with Defendants' knowledge and consent. COUNT TWO: VIOLATION OF Pennsylvania's Fair Trade Extension Uniformity as Act, 73 PS 2270.1 et. seq. and Pennsylvania's Unfair Trade and Consumer Protection Law, 73 PS. 201 et. seq. 11. Plaintiff is a consumer as defined by Pennsylvania's Fair Trade Extension Uniformity as Act, 73 PS 2270.1 et. seq. and Pennsylvania's Unfair Trade and Consumer Protection Law, 73 PS. 201 et. seq.. 12. Defendants are debt collectors as defined by Pennsylvania's Fair Trade Extension Uniformity as Act, 73 PS 2270.1 et. seq. and Pennsylvania's Unfair Trade and Consumer Protection Law, 73 PS. 201 et. seq. 13. The aforementioned misconduct by Defendants on or about May 27, 2008, is also a violation of Pennsylvania's Fair Trade Extension Uniformity as Act, 73 PS 2270.1 et. seq. and Pennsylvania's Unfair Trade and Consumer Protection Law, 73 PS. 201 et. seq. because it was an unlawful attempt to collect a consumer debt. 14. Pennsylvania's Fair Trade Extension Uniformity as Act, 73 PS 2270.1 et. seq. and Pennsylvania's Unfair Trade and Consumer Protection Law, 73 PS. 201 et. seq. prohibit the contacting of a consumer by a debt collector when the debt collector knows that the consumer is represented by an attorney. 15. In the aforementioned instance, Defendants contacted Plaintiff and demanded a payment when Defendants knew or should have known that Plaintiff was represented by an attorney. DAMAGES 16. Plaintiff's actual damages are $1.00 more or less, including but not limited to postage, phone calls, etc. 17. $1,000.00 statutory damages under the FDCPA 15 USC 1692k. 18. $100.00 statutory damages under Pennsylvania's Fair Trade Extension Uniformity as Act, 73 PS 2270.1 et. seq. and Pennsylvania's Unfair Trade and Consumer Protection Law, 73 PS. 201 et. seq. 19. Attorney fees of $875.00 at a rate of $350.00 per hour. Services include but not limited to the following. a. Travel and consultation with client travel to meet with client 1 hour. b. Review and editing of complaint 1 hour c. Service of process 5 hour 2.5 hours x $350.00 = $875.00 20. Plaintiff s attorney fees continue to accrue as the case move forward. 21. Plaintiff suffered anger, humiliation, worry, anxiety and emotional distress which Plaintiff believes and avers is worth at least $1,500.00. JURY TRIAL 22. Plaintiff also seeks an injunction against further unlawful collection activity. OTHER RELIEF 23. Plaintiff specifically demands and requests a jury trial in this matter. 24. Plaintiff seeks declaratory relief barring Defendants from contacting her directly when Defendants know that Plaintiff is represented by an attorney. 25. Plaintiff seeks such other relief as this Honorable Court may deem just and proper. Wherefore, plaintiff demands judgment against defendant in the amount of $6,478.00 enumerated below. $1.00 actual damages $1,500.00 actual damages for emotional distress, anger, anxiety, humiliation and worry. $3,002.00 trebling of actual damages $100.00 statutory damages under Pennsylvania Unfair trade and Consumer Protection Law $1,000.00 statutory damages under the FDCPA $875.00 attorney fees $6,478.00 Plaintiff also seeks declaratory and injunctive relief, and such other relief as this Honorable Court may deem appropriate. j?2Z Frank c aughton, J , squire Date 1926-1 Apple Street Williamsport, PA 17701 570-323-3566 570-220-8044 Fax: 866-347-6773 fincnaughtonjr@hotmail.com to K hJ r i IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA COURT FILE NO.: 09-745 VICKI PIONTEK 951 ALLENTOWN ROAD LANSDALE, 19446 Plaintiff, VS. MESSERLI & KRAMER, P.A., and WILLIAM F. MESSERLI, and ROSS E. KRAMER, 1800 5TH STREET TOWERS 150 SOUTH 5TH STREET MINNEAPOLI, MN 55402 alternate address 450 LEAGUE OF MINNESOTA CITIES BUILDING 145 UNIVERSITY AVENUE WEST SAINT PAUL, MN 55103 alternate address 3033 CAMPUS DRIVE, SUITE 250 PLYMOUTH, MN 55441 Defendants. MOTION FOR ADMISSION PRO HAC VICE MOTION Pursuant to Rule 1012.1 of the Pennsylvania Rules of Civil Procedure and the attached documents, counsel moves the admission pro hac vice of Derrick N. Weber to represent Defendants in this matter. 1 of 2 539778.1 Dated this: 4th day of May, 2009. ERIC M. BE , P.C. Robert M. Kline, Esq., #56479 500 North Gulph Road, Suite 350 King of Prussia, PA 19406 Telephone: (484) 690-3900 Facsimile: (484) 690-3997 AVERMENT OF PAYMENT Pursuant to instructions promulgated by the Pennsylvarip Interest onLa t.? ers Trust Account Board, Derrick N. Weber, the attorney who is the subj 11ofr y avers payment of the required fee. 1wt, N. We ber 2 of 2 539778.1 lmay 11 09 01:58p Connie Leeds 7172382031 SUPREME COURT OF PENNSYLVANIA PENNSYLVANIA INTEREST ON LAWYERS TRUST ACCOUNT BOARD 115 STATE STREET • P. O. BOX 1025 HARRISBURG, PENNSYLVANIA 17108-1025 717/238-2001 • 888-PA-IOLTA(724-6582) • 717/238-2003FAX paioltaC-pacourts.us www.paiolta.org May 11, 2009 Chair MAUREEN P. KELLY, Esquire Two Gateway Center Sent by fax to 763-548-7922 603 Stanwix Street, 8th Floor Pittsburgh, PA 15222-5412 Derrick Neal Weber. Esq. vice-Chair WILLIAM P. CARLUCCI, Esquire MESSERLI & KRAMER.. P.A. Williamsport, PA 3033 Campus Drive Suite 250 Board Members Plymouth, MN 55441 HUBERT X. GILROY, Esquire Carlisle. PA WILLIAM T. HANGLEY, Esquire Dear Attorney Weber: Philadelphia, PA p.2 This letter serves as the fee payment certification referenced in 204 Pa Code PENINA KESSLER LIEBER. Esquire §81.503 and acknowledges receipt of the $100 fee paid by Check, no. 100787, Pittsburgh, PA on this date related to your pursuit for admission pro hac vice in the case MICHAEL H. REED, Esquire identified as Piontek v Messerli & Kramer, P.A., et al., no. 09-745, filed in the Philadelphia, PA court of Common Pleas of Cumberland County. JAMES C. SCHWARTZMAN, Esquire You should refer to Pa Rule of Civil Procedure 1012.1, local court rules. and Philadelphia, PA other regulations of 204 Pa Code §81.501 et. seq. concerning additional ANDREW F. SUSKO, Esquire requirements related to seeking pro hac vice admission. Philadelphia, PA The Honorable Sincerely, MARGHERITA PATTI WORTHINGTON Stroudsburg, PA { y F? y !? r try i ??-` Executive Diredor r ' ALFRED J. AZEN Alfred J. Azen Executive Director cc: Eric M. Berman, Esq. 631-486-4997 G:CL/DOC/PHV/2009/May/May 11 2009 Administering Pennsylvania's Interest On Lawyers Trust Account (IOLTA) Program OF T` 2901, !1`,, :' 2 1 t{ 1 E = L IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA COURT FILE NO.: 09-745 VICKI PI NTEK 951 ALLE TOWN ROAD LANSDA E, 19446 Civil Action Law Plaintiff, vs. MESSE I & KRAMER, P.A., and F. MESSERLI, and ROSS E. KRAMER, 1800 5TH S TREET TOWERS 150 SOUT H 5TH STREET MINNEAP LI, MN 55402 alternate ad dress 450 LEAG E OF MINNESOTA CITIES BUILDING 145 UNIV RSITY AVENUE WEST SAINT PA L, MN 55103 alternate ad dress 3033 CAM US DRIVE, SUITE 250 PLYMOU H, MN 55441 Defendants. ANSWER AND COUNTERCLAIM TO: PLAINTIFF VICKI PIONTEK, THROUGH HER ATTORNEY FRANK J. McNAUG TON, JR., 1926-1 APPLE STREET, WILLIAMSPORT, PA, 17701. DEFEND TS MESSERLI & KRAMER, P.A., WILLIAM F. MESSERLI, AND ROSS E. KRAMER, FOR THEIR ANSWER TO PLAINTIFF'S COMPLAINT, STATE AND ALLEGE S FOLLOWS: 1 of 5 539833.1 1. Defendants deny each and every matter, thing and allegation set forth in Plaintiffs Complaint xcept as hereinafter specifically admitted, qualified or alleged. i 2. As to paragraph 1, Defendants admit that such allegations are the basis for the action, and deny any and all violations alleged. 3. I As to paragraph 2, Defendants admit, upon information and belief. 4. As to paragraph 3, Defendants admit. 5. As to paragraphs 4-9, Defendants deny. 6. As to paragraph 10, Defendants deny that any telephone conversation any Defendant or employee of any Defendant had with Plaintiff included any illegal contact. With regard to a aped record, Defendants are without knowledge or information sufficient to form a belief as to he truth thereof, and therefore deny. 7. As to paragraphs 11-21, Defendants deny. 8. Paragraphs 22-25 do not call for a response. NEW MATTER AFFIRMATIVE DEFENSES 9. The Court lacks personal jurisdiction over Defendants. 10. The Court lacks personal jurisdiction due to improper service of the summons and complaint. 11. I Venue is improper. 12. Forum non conveniens. 13. Plaintiff has failed to state a claim upon which relief may be granted. 2of5 539833.1 14. Plaintiff has failed to state a claim upon which relief may be granted because Plaintiffs counsel in the underlying case failed to respond within a reasonable period of time to a communic tion from the debt collector. 15 U.S.C. § 1692c(a)(2). 15. Plaintiffs claims are subject to the defense of consent. 16. Plaintiffs claims are subject to the defense of license. 17. Defendant reserves the right to assert any and all other defenses as set forth in the Federal R es of Civil Procedure which discovery reveals to be applicable. COUNTERCLAIM 1. That Defendants incorporates Paragraphs 1 through 17 of their Answer as though fully stated herein. 2. I That Plaintiff has filed an action in the United States District Court for the District of Minnesota containing claims arising from the same set of facts as this case. 3. I That the action in United States District Court for the District of Minnesota was dismissed ecause Plaintiff refused to pay her filing fee. 4. That Plaintiff has filed an action in the United States District Court for the Middle District of ennsylvania containing claims arising from the same set of facts as this case. 5. That the action in United States District Court for the Middle District of 6. 7. 8. the laws go 9. 539833.1 a was dismissed because Plaintiff refused to pay her filing fee. That Defendants were never served with the original Complaint in this action. That Plaintiff is an attorney, and is familiar with court rules. That Plaintiff is a self-described "consumer rights activist," and is familiar with ,erring collection of debt. That Plaintiff has made improper use of civil process to harass Defendants. 3 of 5 10, 11. herein. 12. 13. actual dam, 14. herein. 15. 16. damages. That Defendants suffered damages by being compelled to defend in this action. CAUSES OF ACTION COUNT I - ABUSE OF PROCESS That Defendant incorporates Paragraphs 1 through 11 as though fully stated The foregoing acts of Plaintiff constitute an abuse of process. That as a result of such abuse of process, Defendant is entitled to $1,000.00 in COUNT II - BARRATRY That Defendant incorporates Paragraphs 1 through 11 as though fully stated The foregoing acts of Plaintiff constitute barratry. That as a result of such barratry, Defendant is entitled to $1,000.00 in actual RE, Defendant prays that the Court enter the following judgment in 1. 2. 3. 4. favor: Dismissing Plaintiffs Complaint; An award of $1,000.00 for Defendant herein, for abuse of process and barratry, against Plaintiff herein; An award of Defendants' attorneys' fees pursuant to 15 U.S.C. § 1692k. An amount equal to Defendants' attorneys' fees, costs and disbursements herein, and such other and further relief as the Court deems just and equitable. 4of5 539833.1 A. Dated: May 18, 2009. Derrick N. Weber, #241623 MN 3033 Campus Drive, Suite 250 Plymouth, MN 55441 Telephone: (763) 548-7900 Facsimile: (763) 548-7922 ATTORNEYS FOR DEFENDANTS ADMISSION PRO HAC VICE PENDING 5 of 5 539833.1 INDEX OF EXHIBITS Plaintifs Complaint in the United States District Court for the Middle District of Pennsylvania ................................................................ Ex. 1 Plaintiffs Complaint in the United States District Court for the District of Minnesota .................................................................................. Ex. 2 Judgment of Dismissal of Plaintiffs Complaint in the Middle District of Pennsylvania ........................................................................................... Ex. 3 Judgme?t of Dismissal of Plaintiffs Complaint in the District of Minnes a .................................................................................................... Ex.4 Front Page of the Website for Plaintiffs Law Office, ........................................................................ Ex. 5 Plaintiffs Youtube Channel, Showing Videos Uploaded by Plaintiff Criticizi g Numerous Debt Collection Agencies and Law Firms.......... Ex. 6 Case 1:08-cv-01156-YK Document 1 Filed 06/17/2008 Page 1 of 6 HARRISg?D G, pA I KITED STATES DISTRICT COURT JlJ?J 1Q0? FOR THE MII DID DISTRICT OF PENNSYLVANIA MARY ?. VICKI PI NTF,K Per DFREA CLERK 24 WEST GOVERNOR ROAD epuly !er HERSHEY, PA 17033 Plaintiff Va. MESSER I AND KRAMER, P.A. and WILLIAM F. MESSERLI and ROSS E. ] KRAMER Various ddresses Including But Not Limited to the foll wing 1$00 5ni 'TREET TOWERS 150 SOU - H 5n' STREET MINNEA POLIS, MN 55402 alternate dress 450 LEA UE OF MINNESOTA CITIES BUILDING 145 UNI ERSITY AVENUE WEST SAINT P UL, MN 55103 alternate dress 3033 CAM PUS DRIVE, SUITE 250 PLYMOU TH, MN 55441 Defendants COMPLAINT INTRODUCTION 1. his is an action for damages brought by an individual consumer for Defendant's v'olations of the Fair Debt Collection Practices Act, 15 U.S.G. 1692, et seq. (hereinafter " DCPA" { Exhibit 1, Page 1 of 6 Case 1:08-cv-01156-YK Document 1 Filed 06/17/2008 Page 2 of 6 JURISDICTION AND VENUF. 2. Jurisdiction of this Court arises under 15 U.S.C. 1692k(d), 28 U.S.C. 1337. Declaratory clief is available pursuant to 28 U.S.C 2201 and 2202. Venue in this District is proper in that the defendants transact business here and the conduct complained of occurred here. PARTIES 3. j Iaintiff is Vicki Piontek, 24 West Governor Road, Hershey, PA 17033. 4. 0cfendants are SSERL1 AND KKAMLR, P.A_ ad WILLIAM F. MESSERLI and ROSS E. KRAMER arious Addresses Including But Not Limited tine following 1 00 5"I STREET TOWERS 1 0 SOUTH 5n ' STREET INNEAPOLIS, MN 55402 a ternate address 4 U LEAGUE OP MINNESOTA CITIES BUILDING 15 UNIVERSITY AVEN M WEST S INT PAUL, MN 55103 a temate addnsss 3033 CAMPUS DRIVE, SUITE 250 P YMOUTH, MN 55441 Exhibit 1, Page 2 of 6 Case 1:08-cv-01156-YK Document 1 Filed 06/17/2008 Page 3 of 6 5. Defendant are debt collectors as defined by the FTDCPA. 6. ,fit all times mentioned herein, Defendants wcrc attempting to collect on an alleged debt against Plaintiff. 7. Pefendants are debt collectors as defined by the as defined by the Pennsylvania Unfair and Consume Protection Law, 73 PS 201 et. Seq, and theFiar Credit. Extension nifonnity Act, 73 PS 2270, et. Seq. Exhibit 1, Page 3 of 6 ` Case 1:08-cv-01156-YK Document 1 Filed 06/17/2008 Page 4 of 6 COUNT ONE: Violation of Fair Debt Collection Practices Act 8. laintiff is a consumer debtor as defined by the Fair Debt Collections Practices Act ?FDCPA), 15 USC 1692 el. Seq. 9. Pefendant is a debt collector as defined by the FDCPA, 15 USC 1692 ct. scq. 10. tall times mentioned herein, Defendant was attempting to collect on an alleged onsumer debt against Plaintiff. 11. efendant purposely, knowing and intentionally violated the Fair Dcbt Collection Practices Act, 15 USC 1692, et. Seq, on May 27, 2008. Defendants contacted Plaintiff, icki Piontek, a consumer debtor after Defendants knew or should have known that laintiff was represented by an attorney. 12. Stich illegal telephone contact is documented in a tape recorded phone conversation that as made with Defendants' knowledge and consent. Exhibit 1, Page 4 of 6 Case 1:08-cv-01156-YK Document 1 Filed 06/17/2008 Page 5 of 6 DAMAGES 13. laintitf's actual damages are $1.00 more or less, including but not limited to postage, hone calls, cte. 14. 1,000.00 statutory damages under the FDC:PA 15 USC 1692k. 15. ?ttomey fees of $250,00 at. a rate of $250.00 per hour. Services include but not limited to Itation with client, legal research, evidence compilation, dralling of complaint. 16. > Jaintifrs attorney fees continue to accrue as the case move forward. 17. P?laintili(s) demand(s) punitive damages against Defendant in the amount of $10,000.00 anxiety, harassment and intimidation because the acts committed by Dclcndant were wanton and intentional. Exhibit 1, Page 5 of 6 Case 1:08-cv-01156-YK Document 1 Filed 06/17/2008 Page 6 of 6 II OTHER RELIEF 18. plaintiff also seeks an injunction against further unlawful collection activity. 19. < IaintifTseeks declaratory relief barring Defendants from contacting her directly when know that Plaintiff is represented by an attorney. 20. plaintiff seeks such other relief as this honorable Court may deem just and proper. Plaintiff demands judgment against defendant in the amount of $11,25 1.00. (act aI damages, statutory damages, attorney fees and punitive damages). Plaintifl'also seeks declaratory and injunctive relief, and such other relief as this Honorable Court may deem ate. V) ? -- ? " r- I I K - A) IA' Vicki Pi ntek, Esquire Date Pro Se 24 West Governor Road Hershey PA 17033 717-533-7472 Exhibit 1, Page 6 of 6 VICKI 951 AT Vs. MESSEI and WILLIA and ROSS E. Various , to the fol 1800 5'H 150 SOU MINNE) alternate 450 LEA 145 UNP SAINT P alternate 3033 CA: PLYMOI )WN ROAD 19446 I AND KRAMER, P.A. F. MESSERLI UNITED STATES DISTRICT COURT. `" FOR DISTRICT OF MINNESOTA MAIL OCT 08 2008 CLERK, U.S. DISTRICT CC, AT Plaintiff ST. PAUL, MN [dresses Including But Not Limited wing TREET TOWERS H 5TH STREET OLIS, MN 55402 dress UE OF MINNESOTA CITIES BUILDING 'RSITY AVENUE WEST UL, MN 55103 dress PUS DRIVE, SUITE 250 H, MN 55441 Defendants Jury Trial Demanded ab cv s y I V /,7,7 G- COMPLAINT INTRODUCTION I. is is an action for damages brought by an individual consumer for Defendant's violations of the Fair Debt Collection Practices Act, 15 U.S.C. 1692, et seq. (hereinafter A' ?SCAN I ? Exhibit 2, Page 1 of 8 OCT 0 8 2008 Q-8.0- rcouArsr. PAUL JURISDICTION AND VENUE 2. Jurisdiction of this Court arises under 15 U.S.C. 1692k(d), 28 U.S.C. 1337. Declaratory is available pursuant to 28 U.S.C 2201 and 2202. Venue in this District is proper in the defendants transact business here and because a substantial portion of the conduct of occurred here. PARTIES 3. Plaintiff is Vicki Piontek, 951 Allentown Road, Lansdale, PA 19446. 4. Defendants are AND KRAMER, P.A. F. MESSERLI E. KRAMER V ious Addresses Including But Not Limited to a following 18 5"' STREET TOWERS 15 SOUTH 5TH STREET MINNEAPOLIS, MN 55402 alt address 45 LEAGUE OF MINNESOTA CITIES BUILDING 14 UNIVERSITY AVENUE WEST S T PAUL, MN 55103 al to address 30 3 CAMPUS DRIVE, SUITE 250 PL OUTH, MN 55441 Exhibit 2, Page 2 of 8 5. Defendant are debt collectors as defined by the FDCPA. 6. A t all times mentioned herein, Defendants were attempting to collect on an alleged debt against Plaintiff. 7. Defendants are debt collectors as defined by the as defined by the Pennsylvania Unfair and Consume Protection Law, 73 PS 201 et. Seq, and theFiar Credit Extension Act, 73 PS 2270, et. Seq. Exhibit 2, Page 3 of 8 ONE: Violation of Fair Debt Collection Practices Act, 15 USC 1692 et. seq. 8. Plaintiff is a consumer debtor as defined by the Fair Debt Collections Practices Act A), 15 USC 1692 et. Seq. 9. Defendant is a debt collector as defined by the FDCPA,15 USC 1692 et. seq. 10. A? all times mentioned herein, Defendant was attempting to collect on an alleged debt against Plaintiff. 11. Defendant purposely, knowing and intentionally violated the Fair Debt Collection Act, 15 USC 1692, et. Seq, on May 27, 2008. Defendants contacted Plaintiff, Piontek, a consumer debtor after Defendants knew or should have known that was represented by an attorney. 12. Such illegal telephone contact is documented in a tape recorded phone conversation on 5- that was made with Defendants' knowledge and consent. Exhibit 2, Page 4 of.8 Two: VIOLATION OF Pennsylvania's Fair Trade Extension Uniformity as Act, 73 PS 2276.1 et. seq. and Pennsylvania's Unfair Trade and Consumer Protection Law, 73 PS. 201 et. seq. 13. Plaintiff is a consumer as defined by Pennsylvania's Fair Trade Extension Uniformity as 73 PS 2270.1 et. seq. and Pennsylvania's Unfair Trade and Consumer Protection , 73 PS. 201 et. seq.. 14. Defendant is a debt collector as defined by Pennsylvania's Fair Trade Extension as Act, 73 PS 2270.1 et, seq. and Pennsylvania's Unfair Trade and Consumer Law, 73 PS. 201 et. seq. 15. Tl a aforementioned misconduct by Defendant is also a violation of Pennsylvania's Fair Extension Uniformity as Act, 73 PS 2270.1 et. seq. and Pennsylvania's Unfair and Consumer Protection Law, 73 PS. 201 et. seq. because it was an unlawful to collect a consumer debt. 16. Pennsylvania's Fair Trade Extension Uniformity as Act, 73 PS 2270.1 et. seq. and vania's Unfair Trade and Consumer Protection Law, 73 PS. 201 et, seq. prohibit contacting of a consumer by a debt collector when the debt collector knows that the is represented by an attorney. Exhibit 2, Page 5 of 8 17. - the aforementioned instance, Defendant contacted Plaintiff and demanded a payment Defendant knew or should have known that Plaintiff was represented by an DAMAGES 18. Plaintiff's actual damages are $1.00 more or less, including but not limited to postage, calls, etc. 19.$] ,000.00 statutory damages under the FDCPA 15 USC 1692k. 20. $100.00 statutory damages under Pennsylvania's Fair Trade Extension Uniformity as 73 PS 2270.1 et. seq. and Pennsylvania's Unfair Trade and Consumer Protection , 73 PS. 201 et. seq. 21. Attorney fees of $250.00 at a rate of $250.00 per hour. Services include but not limited to with client, legal research, evidence compilation, drafting of complaint. 22. Plaintiff's attorney fees continue to accrue as the case move forward. 23. Plaintiff(s) demand(s) punitive damages against Defendant in the amount of $10,000.00 anxiety, harassment and intimidation because the acts committed by Defendant were willful, wanton and intentional. Exhibit 2, Page 6 of 8 24. Plaintiff suffered anger, humiliation and emotional distress which Plaintiff believes and is worth at least $1,500.00. OTHER RELIEF 25. P?aintiffalso seeks an injunction against further unlawful collection activity. 26. Plaintiff seeks declaratory relief barring Defendants from contacting her directly when know that Plaintiff is represented by an attorney. 27. Plaintiff seeks such other relief as this honorable Court may deem just and proper. plaintiff demands judgment against defendant in the amount of $12,751.00. damages, statutory damages, attorney fees and punitive damages). Plaintiff also seeks and injunctive relief, and such other relief as this Honorable Court may deem ?v JL Io.3•oI3 Vicki Pio tek, Esquire Date Pro Se 951 Allentown Road Lansdale, A 19446 717-533-7472 Exhibit 2, Page 7 of 8 O r ?a -41 W .r o C . ?r O ? 7 V, l J • 4- + r C7 VJ 0 i cs -3- n Exhibit 2, Page 8 of 8 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA VICKI V. Civil Action No. 1:08-cv-01156 (Chief Judge Kane) MESS RLI AND KRAMER, P.A., WILL M F. MESSERLI, and ROSS E. KRAMER ORDER NOW, on this 9th day of October 2008, having given due consideration to the report d recommendation of Magistrate Judge Andrew Smyser (Doc. No. 8) and Plaintiff Vicki Piontek' objections thereto (Doc. No. 10), and finding that Plaintiff has failed to timely remit the required filing fee as directed by the Court in an order issued July 10, 2008 (Doc. No. 7), IT IS HEREBY ORDERED THAT: 1. The report and recommendation (Doc. No. 8) is ADOPTED; 2. Plaintiff's objections (Doc. No. 10) to the report and recommendation are OVERRULED; 3. Plaintiff's complaint (Doc. No. 1) and amended complaint (Doc. No. 11) are DISMISSED without prejudice. See Gibbs v. Ryan, 160 F.3d 160, 162 n.2 (3d Cir. 1998) (explaining that, after denying a litigant in forma pauperis status, a district court should "direct[] payment of the fulfilling [sic] fee within a specified period and dismiss[] the complaint only if the litigant fails to pay the filing fee"); 4. The Clerk of Court is directed to CLOSE the file. s/ Yvette Kane Yvette Kane, Chief Judge United States District Court Middle District of Pennsylvania Exhibit 3, Page 1 of 1 %A0450 (Rev. 51M iJudmnent in a Civil Case UNITED STATES DISTRICT COURT District of Minnesota VICKI PIO Plaintiff, V. MESSERLI & WILLIAM F. ] E. KRAMER. KRAMER, P.A., VIESSERLI, AND ROSS Case Number: 08-5401 (JRT/JJG) Defendants. Jury V has reni QX Decision by heard and a IT IS t. This action came before the Court for a trial by jury. The issues have been tried and the jury its verdict. This action came to trial or hearing before the Court. The issues have been tried or has been rendered. AND ADJUDGED THAT: this action is DISMISSED WITHOUT PREJUDICE. D ate February 23, 2009 RICHARD D. SLETTEN, CLERK s/J.Z. (By) J.Z., Deputy Clerk JUDGMENT IN A CIVIL CASE Exhibit 4, Page 1 of 1 Form Modified: 09/16/04 Piontek Lave Office We Sue Bill Collectors! Attomne Vicki Piontek is a graduate of Regent University School of Law in Virginia Beach, Virginia, 1996. Admitt to to Practice in Wisconsin and Pennsylvania. Former Attorney with the Judge Advocate General (JAG) United States Army. Attorney Piontek is a consumer rights activist fighting for the rights of the 'little y." Piontek Law Office sues bill collators under the Fair Debt Collection Practices Act and the Fair credit porting Act, and also under state laws. Piontek w Office is a Debt Relief Agency. Services include but are not limited to credit counseling, debt relief; it repair, litigation tinder the Fair Debt Collection Practices Act, Fair Credit Reporting Act and Don't be a slave to the credit, lending and taxation industries. Call Attorney Vicki Piontek today! Foreclsoure -Sto Repossessions -Stop Wage Garnishments -Stop Harassing Phone Calls and Letters -Sto Lawsuits -Discharge IRS Taxes in Certain Cases -Discharge Student Loans in Certain Cases -Student Loan Rehabilitation &Fly &Y. #W Him mirk '"M" W offle, Piontek Law Office 951 Allentown Road Page 1 of 2 Exhibit 5, Page 1 of 2 Piontek Law Office Page 2 of 2 Lansdale PA 19446 Phone: 877-737-8617 Fax: 866-408-6735 attornevasuebillcollectors com 24 our Cella 717-533-7472 Hours: C?mi 7 Days a Week. Sunday Through Sauntay, 7 A.M. to 11 P.M We make house in some Questions or comments? Get in touch with us at: vick' uebillcoftaorss com Sits. na by.IKsb com.. _ Search i_,' This site ;? The Web Exhibit 5, Page 2 of 2 YoVTube - ViddPiontek's Channel English v 1Adew I Shows I Channels I Communhy I UpkrW Videos I Favorites I Playlists I Groups I Friends I Subscribws I Subscriptions Vickipiontakls C annei I cklftntsk >katmratar 2e, 7q d Sign trr 4 ip awW:he 1,47 ew: a anal VWVwx 70 age F Country. United Rob as Report Image vidation Connectar)th Vi iPiorrtek i Send M onage j Add Conmert Share Chanrwd U-CAj AM to Qpode htlp*www.y utuba.comNickPlortek Embed This Chann e : r mana, RAN Recent Acthrity i WWOMIoNsicu adad • nawMdao R vweks ago) Sto IC Syaternel Sts IC systemat WNPloslsku ahd ¦ nwevld s a mom ago) Na Enterprise Do ¦ to National at p8y aryttdnp to nat Ent riseSystemswthout to g to a... owns MdlPkwlrcu aded8newvidao (1 mardh ago) Cre Iwo Interchange Y should not pay anything b Cre ors Interchange without to g to ... mor. YIdIIWsntaku nded ¦newvGbo d mathrgo) Ca at Management Services You shard not pay anything to Ca at MermgenmrdServices ure foutat.. mar. 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[Minas • W .aadn 1 ynrago 2yeareago 1 yaarago 4,'JS1 vbm 279,557 Nees 55.9x9 vbva 1 SAW" yongbdsr? aakbemyr i Vi.a.?aalm Vasessm Vwn= see al I Channel Comments There are no comments for this user. Add Comment Exhibit 6, Page 1 of 1 FILPF.i CAF THE 1;- 7 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA COURT FILE NO.: 09-745 VICKI PI 951 ALL] LANSDA DWN ROAD 19446 Plaintiff, VS. and & KRAMER, P.A., WILLIAMIF. MESSERLI, and ROSS E. 18005 TH TREET TOWERS 150 SOU' 5TH STREET MINNEA OLI, MN 55402 alternate a dress 450 LEA UE OF MINNESOTA CITIES BUILDING 145 UNIV RSITY AVENUE WEST SAINT P UL, MN 55103 alternate a dress 3033 CA PUS DRIVE, SUITE 250 PLYMOU H, MN 55441 Defendants. CERTIFICATE OF SERVICE I, Jenifer hambour, of the City of Plymouth, County of Hennepin, in the State of Minnesota, hereby certify that I served a true and correct copy of Defendants' Answer and Counterclaim, Defends s' Motion for Admission Pro Hac Vice, Proposed Order, on Vicki Piontek, through her attorney F?rank J. McNaughton, Jr., by mailing to him copies thereof, enclosed in an envelope, addressed to Frank J. McNaughton, Jr., 1926-1 Apple Street, Williamsport, PA, 17701. Subscribe and sworn to before me _ this 1_a ay of - nos,_/--, 2009. Notary P Iic JAM L. DITIMER 540087.1 Notary Public Minnesota My Commission Expii- Jan. 31, 2013 , FILED-.'', OF THE 20991.1 Y 21 Ill'i i 1It -- 2 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA VICKI PIONTEK 951 ALLENTOWN ROAD LANSDALE, 19446 Plaintiff Vs. MESSERLI AND KRAMER, P.A. and WILLIAM F. MESSERLI and ROSS E. KRAMER Various Addresses Including But Not Limited to the following 18005 TH STREET TOWERS 150 SOUTH 5TH STREET MINNEAPOLIS, MN 55402 alternate address 450 LEAGUE OF MINNESOTA CITIES BUILDING 145 UNIVERSITY AVENUE WEST SAINT PAUL, MN 55103 alternate address 3033 CAMPUS DRIVE, SUITE 250 PLYMOUTH, MN 55441 Defendants CIVIL ACTION LAW 09-745 Jury Trial Demanded PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANT'S NEW MATTER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM Defendants' Allegations of "Improper Service of Summons and Complaint" 1. In paragraphs 9 and 10 of Defendants' "New Matter" and "Affirmative Defenses", Defendants claim that the Court lacks personal jurisdiction over Defendants due to improper service of the summons and complaint. However, a summons is not a part of the pleadings according to the rules of civil procedure in Pennsylvania. Furthermore, it is believed and averred that Plaintiff was only required to serve the amended complaint and not the original complaint in this matter, because the first complaint contained certain errors or omissions that were corrected in the amended complaint. If Plaintiff had served the original complaint on defendants, this would have confused the record. If the Court requires that the original complaint be served on defendants, then Plaintiff will be happy to do so. Defendants' Allegations of Improper Venue 2 In paragraph 11 of Defendants' "New Matter" and "Affirmative Defenses," Defendants claim that venue is improper, but fail to state the reason why venue would be improper. Such a claim is vague and non-specific. Plaintiff cannot prepare a response to such a contention because of the vagueness and ambiguity. Plaintiff believes and avers that venue is proper in Cumberland County because the phone conversation which took place that formed the basis of this cause of action took place in Plaintiff s vehicle while Plaintiff was driving in or near Cumberland County. Defendants' Allegations of "Forum Non-Convenien" 3. In paragraph 12 of Defendants' "New Matter" and "Affirmative Defenses," Defendants claim forum non convenien but fail to state the reason why they claim forum non convenien. Such a claim is vague and non-specific. Plaintiff cannot prepare a response to such a contention because of the vagueness and ambiguity. Defendants' Allegations that Plaintiff Has "Failed to State a Claim Upon Which Relief May Be Granted." 4. In paragraph 13 and 14 of Defendants "New Matter" and "Affirmative Defenses," Defendants make a general assertion that "Plaintiff has failed to state a claim upon which relief may be granted," but fail to state any reason for such a contention. Such and assertion is vague, overbroad, and Plaintiff is therefore unable to prepare a responsive pleading. Preliminary Objections to Defendants' Counterclaim 5. In paragraph 2 of Defendants' Counterclaim, Defendants that Plaintiff has filed an action in the United States District Court for the District of Minnesota containing claims arising from the same set of facts as this case, but fails to establish how this is relevant to the current proceeding. Any prior filings in other courts were dismissed without prejudice, and Defendants did not prepare any responsive pleadings or participate in the case in any way. Such prior cases have no bearing on the present case. Plaintiff moves to strike paragraph 2 of Defendant's Counterclaim because such paragraph contain scandalous and impertinent matter and improperly cast a derogatory light on Plaintiff. Pursuant to Pennsylvania Rule of Civil Procedure 1024 (a) (2), paragraph 2 of Defendants' Counterclaim should be stricken by way of demurer for failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter. Defendants' References to Other Filings Which Were Dismissed Without Prejudice 6. In paragraph 3 of Defendants' counterclaim, Defendants state that the action in United States District Court for the District of Minnesota was dismissed because Plaintiff refused to pay her filing fee. However, the record does not state that Plaintiff "refused" to pay the filing fee. The filing fee simply remained unpaid. Defendants fail to establish how this is relevant to the current proceeding. Any prior filings in other courts were dismissed without prejudice, and Defendants did not prepare any responsive pleadings or participate in the case in any way. Such prior cases have no bearing on the present case. Plaintiff moves to strike paragraph 3 of Defendant's Counterclaim because such paragraph contain scandalous and impertinent matter and improperly cast a derogatory light on Plaintiff. Pursuant to Pennsylvania Rule of Civil Procedure 1024 (a) (2), paragraph 3 of Defendants' Counterclaim should be stricken by way of demurer for failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter. 7. In paragraph 4 of Defendants' Counterclaim, Defendants state that Plaintiff has filed an action in the United States District Court for the Middle District of Pennsylvania containing claims arising from the same set of facts as this case. Defendants fail to establish how this is relevant to the current proceeding. Any prior filings in other courts were dismissed without prejudice, and Defendants did not prepare any responsive pleadings or participate in the case in any way. Such prior cases have no bearing on the present case 8. In paragraph 5 of Defendants' counterclaim, Defendants state that the action in United States District Court for the Middle District of Pennsylvania was dismissed because Plaintiff refused to pay her filing fee. However, the record does not state that Plaintiff "refused" to pay the filing fee. The filing fee simply remained unpaid. Defendants fail to establish how this is relevant to the current proceeding. Any prior filings in other courts were dismissed without prejudice, and Defendants did not prepare any responsive pleadings or participate in the case in any way. Such prior cases have no bearing on the present case. Defendants' Allegations of Improper Service 9. In paragraph 6 of Defendants' counterclaim, Defendants state that Defendants were never served with the original Complaint in this action. But Defendants fail to establish how this is relevant to a counterclaim. The original complaint was not served because it contained certain errors and omissions. It is believed and averred that Plaintiff was only required to serve the amended complaint and not the original complaint in this matter, because the first complaint contained certain errors or omissions tht were corrected in the amended complaint. If Plaintiff had served the original complaint defendants, this would have confused the record. If the Court requires that the original complaint be served on defendants, then Plaintiff will be happy to do so. Defendant's References to Plaintiff Being An Attorney 10. In paragraph 7 of Defendants' Counterclaim, Defendants state that Plaintiff is an attorney, and is familiar with court rules in their counterclaim, but fail to establish how this is relevant to a counterclaim. Defendant's References to Plaintiffs Websites and You Tube Postings 11. In paragraph 8 of Defendants' Counterclaim, Defendants state that Plaintiff is a self- described" consumer rights activist," and is familiar with the laws governing collection of debt. However, Defendants fail to establish how this is relevant to a counterclaim. Defendant has attached copies of Plaintiff's website as well as references to videos Plaintiff has posted on You Tube. Defendants erroneously believe that Plaintiffs postings on her website and on You Tube are somehow relevant to Defendants' defense. On the contrary. See Memorandum and Order from the Honorable Judge Sylvia H. Rambo in the case of Piontek Vs. IC Systems, 08-CV-01207, Middle District of Pennsylvania (2009), attached as Exhibit A. The Honorable Judge Rambo ruled that Plaintiff's internet posting were only relevant if Plaintiff chose to pursue a claim for emotional distress. No claim for emotional distress will be presented in this case in lieu of Judge Rambo's Memorandum and Order. Defendant's Allegations of "Improper Use of Civil Process" 12. In paragraph 9 of Defendants' Counterclaim, Defendants state that Plaintiff has made improper use of civil process to harass Defendants. But Defendants fail to show how there was improper use of civil process. Defendants' claim of improper use of civil process is vague, ambiguous and overbroad. The claim of improper use of civil process is so vague and overbroad that Defendant cannot prepare a responsive pleading. Defendants' Claim for Damages 13. In paragraph 10 of Defendants' Counterclaim, Defendants state that Defendants suffered damages by being compelled to defend in this action. However, the mere filing of an answer and / or other responsive pleading does non constitute the basis for the award of damages, under Pennsylvania law which adheres to the American Rule, absent an agreement of the parties or some statutory authority. In Paragraph 13 of Defendants' Counterclaim, Defendants state "that as a result of such abuse of process, Defendant is entitled to $1,000.00 in actual damages." However, Defendants fail to state any grounds for why Plaintiff's actions constitute an abuse of process, or why Defendants are entitled to $1,000.00 in actual damages. Defendant's Allegations of "Abuse of Process" 14. In paragraph 12 of Defendants' Counterclaim, Defendants state that "the foregoing acts of Plaintiff constitute an abuse of process." However, Defendants fail to state any grounds for why Plaintiffs actions constitute an abuse of process. Defendants' Allegations of "Baratry" 15. In Paragraph 15 of Defendants' Counterclaim, Defendants state that "the foregoing acts of Plaintiff constitute barratry." Defendants fail to define "barratry." Defendants' assertion that Plaintiff is guilty of "barratry" is vague and over-broad, and thus fails to constitute a valid counterclaim. 16. In Paragraph 16 of Defendants' Counterclaim, Defendants state "that as a result of such barratry, Defendant is entitled to $1,000.00 in actual damages," but fails to assert any valid cognizable legal argument WHEREFORE, Plaintiff requests that Defendants New Matter, Affirmative Defenses and Counterclaim will be dismissed by this Honorable Court for failure to state valid defenses or counterclaims. In the alternative, Plaintiff requests that this Honorable Court order Defendant to amend its Affirmative Defenses, New Matter and Counterclaim. 6-Is=vy Frank J. McNaughton r., Esquire Date 1926 Apple Street Williamsport, PA 17701 fmcnauj?,h.tonjr(Li;;gmail.com 570-323-3566 570-220-8044 Fax: 866-347-6773 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA VICKI PIONTEK 951 ALLENTOWN ROAD LANSDALE, 19446 Plaintiff CIVIL ACTION Vs. LAW MESSERLI AND KRAMER, P.A. and 09-745 WILLIAM F. MESSERLI and ROSS E. KRAMER Jury Trial Demanded Various Addresses Including But Not Limited to the following 18005 TH STREET TOWERS 150 SOUTH 5TH STREET : MINNEAPOLIS, MN 55402 alternate address ; 450 LEAGUE OF MINNESOTA CITIES BUILDING 145 UNIVERSITY AVENUE WEST SAINT PAUL, MN 55103 alternate address ; 3033 CAMPUS DRIVE, SUITE 250 PLYMOUTH, MN 55441 Defendants CERTIFICATE OF SERVICE On the 15th day of June, 2009, a true and correct copy of the attached preliminary objections were sent by First Class U.S. Mail, postage pre-paid to the following parties a the following addresses. Derrick N. Weber, Esquire 3033 Campus Drive, Suite 250 Plymouth, MN 55441 Frank J. MCNaughton, Jr., Es9ui Date 1926 Apple Street Williamsport, PA 17701 fmcnaughtonj r'ii L,rnail. coiii 570-323-3566 570-220-8044 Fax: 866-347-6773 2099 „UIN 15 AN i I: 1 5 r~ TIIE cOt?K"r oh Col~~moN Pr_:E.as C'U1~113L1tLA~D C:f:)LT1TX, Pi/lti~?S~"L~-AN1A __v__ CC:>t1K`I~ FIL! P~Q.: 09-7~5 \~"1C'K 1 1'IUN"1 F;1~; 9~1 .f~1.,LE?N"IOtI"~ RC)AD j >_.:~NSD.~r.r_ 1944 ~ Civil .Action La~~ Plaintiff. VS. '~-1ESSEltI: c~'. K12_,AMII2., P.A., and l~'1L.LIf1:b1 F. 'vil•SSI/hl.l. and ROSS E. I~R.~'\~1TR, 1800 Sr'i` S"TREE"I' TC~Vv'F:F~S 1~0 SC)U"I'H Srr~ S"1'KFF"I` 3~4NNEAPOLI, tfi~' >j40? alternate address 450 I.EAC:TtiE ()F Iti~fF:'vTI~iE.SOTA CITIES BI:r1LD1'~iG 14~ L~IvTI1rERSi"I'Y t1VI;Nt1F~- VJES'I" S~IIN"1' PA17I:. 1~'IN S 51 f) alternate address 3c73, CA1~1Pt~S Dxrv1=_ sL~1T;/ 2so PI.,Y~IOLTH, MN 55441 rJefend<1nts, ENTRY OF APPEARANCE ANS1~'F;R AND +C"OGTNTERCL:AI~~ ~'/~ ~~/5 Kindly enter the appearance of Hynum Law for the Defendants in the above captioned case. ~~ ~- Shawn A. Bozarth, Esquire For Hynum Law 2308 North 3~d Street Harrisburg, PA 17110 717-774-1357 DATE: November 25, 2009 Fi_::. 26x91°}~~'~t a~7 ~'E~ i~ ~~ f~ ~ .t tr 'a l'~~~.