HomeMy WebLinkAbout01-6895COMMONWEALTH OF PENNSYLVANIA
COURT OF COMMON PLEAS
JUDICIAL DISTRICT
NOTICE OF APPEAL
DISTRICT JUSTICE JUDGMENT
NOTICE OF APPEAL ~ ~, ~OOJ
Notice is given that the appellant has filed in the above Court of Common Pleas afl appeal from the judgment rendered by the District Justice on the
date and in the case mentioned below
CLAIM NO
This block will be sigfled ONLY when this notation is required under Pa. R.C.RJ.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 Prothonotary or Deputy
ff appellant was CLAIMANT (see Pa. R.C.P.J.P. No.
1001 (6) in action before District Justice, he MUST
FILE A COMPLAINT within twenty (20) days after
filing his NOTICE of APPEAL.
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) 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 '.~6r~J//~..~ /,~il'~'~t/ //'~ 4x'_v~ , appellee(s), to file a complaint in this appeal
.... iveme 'o~
(Common Pleas Na. (~)'"' ~19~'''C';V~) ) within twenty (20) days ~fl~ service of rule or suffer entry of judgrnent of non pras.
S~9nature of appe#ant or his at~'ney or a~e
RULE: To ~,~I/ I Z~ /,~fJ/,~ / l & ~ .appellee(s).
(1) You am 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.
(3) The date of service of this rule if service was by mail is the date of mailing.
COURT FILE TO BE FILED WITH PROTHONOTARY
PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT
(This proof of service MUST BE FILED W/THIN TEN (10) DA YS AFTER fi/lng t'h~ notice of appeal. Check applicable boxes)
COMMONWEALTH OF PENNSYLVANIA ,~,,
COUNTY OF ; st
AFFIDAVIT: I hereby swear or affirm that I served ,
[] a copy of the Notice of Appeal, Common Pleas NO.
(date of service)
receipt attached hereto, and upon the appellee, (name)
, upon the District Justice designated therein on
[] by personal service [] by (certified) (registered) mail. sender's
, OR
, 19. [] 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 .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 affiant
Signature of official before whom affidavit was mede
Title of official
My commission expires on
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF: COM~ERLAND
Mag. Dist. NO.:
09 -3-03
DJ Name: Hon.
SUSAN K. DAY
Address; 229 MILL STREET, BOX 167
MT. HOLLY SPRINGS, PA
(717) 486-7672 17065
ATTOP/TEY DEF PRIVATE :
KARL ROMINGER
50 E. HIGH ST.
CARLISLE, PA 17013
NOTICE OF JUDGMENT/TRANSCRIPT
CIVIL CASE
PLAINTIFF: NAME and ADDRESS
~WEINIGER, DAVID
31 CASALE DRI~-E SOUTH
WARREN, NJ 07059
VS.
DEFENDANT: NAME and ADDRESS
~KOCH, CHRISTOPHER
305 SANDBANK ROAD
MT. HOLLY SPRINGS, PA 17065
Docket No.: CV-0000275-01 / ~
Date F ed: 9/12/01
THIS IS TO NOTIFY YOU THAT:
Judgment:
~-~ Judgment was entered for: (Name)
~-~ Judgment was entered against: (Name)
inthe amountof$ 3:'~R~--~-"4 on:
r~ Defendants are jointly and severally liable.
FOR pLATNTTFF
(Da~e of Judgment)
(Date & Time)
-'--[Damages will be assessed on:
[~ This case dismissed without prejudice.
~ Amount of Judgment Subject to
Attachment/Act 5 of 1996 $
~ Levy is stayed for days or ~--[ generally stayed.
~-'-~ Objection to levy has been filed and hearing will be held:
Date:
Time:
Place:
11~hq~n1
Amount of Judgment $ 3,300°00
Judgment Costs $ 82 o 23
Interest on Judgment $ .00
Attorney Fees $ o 00
Total $ 3,382.23
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 FILING A NOTICE
OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU
~ Da~ ~~~~~~.. ~, District Justice
~ojd of th~ proceedings ~
I_ Date ., Distdct JusticeJ
My commission expires first Monday of January,
AOPC 315-99
2004
SEAL
PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT
(This proof of service MUST BE FILED WITHtN TEN (?0) DAYS AFTER filing the notice of appeal Check applicable boxes
COMMONWEALTH OF PENNSYLVANIA
cou. OF
AFFIDAVIT: i hereby swear or affirm that I served
receipt attachad heretol and upon the appellee, (name) ~//~ ~/~/~/~ , , on
~/~ ,~ ~/ ~ by personal se~ice ~ by.registered) mail, sender s receipt attached hereto.
~end further that I served the R~te to File a Co~ p~a~t accompany~ above Notice of Appeal upon the appe~ee(s) to whom
the Ru~e was addressed o, /~/~ ,/~/ , ~ D by personal servic~y ~(registered)
maiD, sendeCs receipt attached hereto,
SWORN (AFF!..RMED) AND SUBSCRIBED BEFORE ME ~
Signature ofaffiant
'" Notadal Se~
~ Lisa M. Greas~, No~ Public
/ Carlisle ~ro, Cum~rland Coun~
My Commission Expires Sept, 9, 2002
Postage
DAVID WEINIGER,
Plaintiff
CHRISTOPHER KOCH,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
No. 01-6895 Civil Term
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 objections to the claims set forth against you. You are warned that if you
fail to do so the case may proceed without you and a judgment may be entered against you by the
court without further notice for any money claimed in the complaint or for any other claim or
relief requested by the plaintiff. You may lose money or property or other fights 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, Pennsylvania
Telephone No. 717-249-3166
DAVID WE1NIGER, :
Plaintiff :
CHRISTOPHER KOCH,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
No. 01-6895 Civil Term
COMPLAINT
AND NOW, comes Plaintiff, David Weiniger, pro se, who files the following Complaint
against Defendant, Christopher Koch, and states as follows:
1. The Plaintiff, David Weiniger, is an adult individual who resides at 31 Casalc
Drive South, Warren, New Jersey 07059.
2. The Defendant, Christopher Koch, is an adult individual who resides at 305
Sandbank Road, Mount Holly Springs, Pennsylvania 17065.
3. On or about September 12, 2001, Plaintiff filed a civil complaint against
Defendant with District Justice Susan K. Day, Magisterial District No. 09-3-03, and having a
docket number of CV-0000275-01.
4. A heating on the matter was held on or about November 9, 2001.
5. Although Defendant's counsel was present at the hearing, Defendant failed to
appear, and a default judgment in the amount of $3,382.23 was entered against Defendant.
6. On or about December 5, 2001, Defendant filed a Notice of Appeal of the District
Justice judgment.
7. On December 11, 2001, a Notice of Appeal and Rule Upon Appellee (Plaintiff
herein) was served to Plaintiffto file a Complaint with the Court. This Complaint is timely filed
in response to the Rule.
forth herein.
COUNT I
BREACH OF CONTRACT
The averments of paragraphs 1-7 are incorporated by reference as though fully set
9. In February 2001, Defendant solicited offers for the purchase and sale of three
collector magazines (the "Merchandise") by posting a solicitation on the E'bay® auction
website.
10. Defendant's solicitation indicated that he would be responsible and pay for ail
shipping costs related to the sale of the Merchandise.
11. On February 7, 2001, Plaintiff offered to purchase the Merchandise at the price of
$3,300.00.
12.
13.
On February 7, 2001, Defendant accepted Plaintiff's offer.
On February 8, 2001, Plaintiffpaid Defendant $3,300.00 for the Merchandise and
an additional $20.00 for shipping the Merchandise by registered and insured mail. Plaintiffpaid
by check number 5020, a copy of which is attached hereto as Exhibit A.
14. Defendant has failed and/or refused to make delivery of the Merchandise.
15. Plaintiff has never received the Merchandise.
16. Defendant cashed Plaintiff's check for $3,320.00. A copy of the cashed check is
attached hereto as Exhibit B.
17. Defendant breached the contract.
18. Defendant is without an excuse or justification.
19. Defendant's actions are without privilege.
20. As a direct and proximate result of Defendant's breach, Plaintiffhas been
damaged.
WHEREFORE, Plaintiff, David Weiniger, demands judgment against Defendant,
Christopher Koch, in the amount of $3,382.23, plus all reasonable costs and expenses incurred in
bringing this action against Defendant, and any other relief the Court may deem appropriate.
COUNT II
BREACH OF WARRANTY
21. The averments of paragraphs 1-20 are incorporated by reference as though fully
set forth herein.
27.
insured mail.
28.
29.
30.
31.
32.
damaged.
22. On February 8, 2001, Plaintiff demanded a modification of the terms regarding
shipping in that Defendant should ship the Merchandise via registered and insured mail.
23. Plaintiff stated that he would pay for the additional shipping costs.
24. On February 8, 2001, Plaintiff paid Defendant $3,300.00 for the Merchandise and
$20.00 for the shipping.
25. On February 13, 2001, Defendant accepted Plaintiffs modification by cashing
Plaintiffs check in the amount of $3,320.00.
26. Defendant's acceptance and cashing of Plaintiff's check constitutes:
a. express acceptance of the modification of the terms of the contract
regarding shipping, such that shipping would be via registered insured
mail;
b. an express warranty that shipping would occur via registered and insured
mail; and
c. an implied warranty that shipping would occur via registered and insured
mail.
Defendant has failed and/or refused to deliver the Merchandise via registered and
Plaintiff has never received the Merchandise.
Defendant breached the express and/or implied warranties.
Defendant is without an excuse or justification.
Defendant's actions are without privilege.
As a direct and proximate result of Defendant's breach, Plaintiff has been
WHEREFORE, Plaintiff, David Weihiger, demands judgment against Defendant,
Christopher Koch, in the amount of $3382.23, plus all reasonable costs and expenses incurred in
bringing this action against Defendant, and any other relief the Court may deem appropriate.
COUNT III
DETRIMENTAL RELIANCE/PROMISSORY ESTOPPEL
33. The averments of paragraphs 1-26 are incorporated by reference as though fully
set forth herein.
34. In the alternative, Defendant is liable to Plaintiff under the theory of Detrimental
Reliance or Promissory Estoppel.
35. Defendant represented that he would be responsible for and would pay for
shipping the Merchandise.
36. Plaintiff relied on Defendant's representations in tendering payment of $3,300.00
to Defendant.
37.
38.
Merchandise.
39.
Plaintiff's reliance was reasonable and justified.
Defendant's representations were false, in that Defendant did not ship the
As a direct and proximate result of Plaintiff's reasonable reliance on Defendant's
false representations, Plaintiff has been damaged.
40. By accepting Plaintiff's additional payment of $20.00, Defendant represented to
Plaintiff that Defendant accepted PlalntiWs demand and would ship the Merchandise via
registered and insured mail.
41. Plalntiffrelied on Defendant's representations.
42. PlaintiWs reliance was reasonable and justified.
43. Defendant's representations were false in that Defendant did not ship the
Merchandise via registered and certified mail.
44. Defendant breached his duty to Plaintiff to ship the Merchandise via registered
and certified mail.
45. As a direct and proximate result of Defendant's breach, Plaintiffhas been
damaged.
WHEREFORE, Plaintiff, David Weiniger, demands judgment against Defendant,
Christopher Koch, in the mount of $3382.23, plus all reasonable costs and expenses incurred in
bringing this action against Defendant, and any other relief the Court may deem appropriate.
Respectfully submitted,
David '~elmger, l~aln~ff
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.A. § 4904 relating to unswom falsification to
authorities. ~/~~...-
Dated: December 21,2001 ~f f
I~vid '~(einiger°'t/ ~
NAMED HEREIN
44 t7 8, 7 Z 7 8
: /
DAVID WEINIGER,
plaintiff
V.
CHRISTOPHER KOCH
Defendants
:IN THE COURT OF COMMON PLEAS OF
:CUMBERLAND COUNTY, PENNSYLVANIA
:
:CIVIL ACTION - LAW
:
:NO. 01- 6895 CIVIL TERM
.-
.-
NOTICE TO PLEAD
TO: David Weiniger
You are hereby notified to file a written response to the enclosed Preliminary Objeetion
within twenty (20) days from service hereof or a judgment may be entered against you.
155 South Hanover Street
Carlisle, PA 17013
(717) 241-6070
Supreme Court ID # 81924
Attorney for Defendant
DAVID WEINIGER.
Plaintiff
CHRISTOPHER KOCH,
Defendant
:IN THE COURT OF COMMON PLEAS OF
:CUMBERLAND COUNTY, PENNSYLVANIA
:
:CIVIL ACTION - LAW
:
:NO. 01-6895 CIVIL TERM
PRELIMINARY OBJECTION
AND NOW, comes Christopher Koch by and through his privately retained counsel, Karl
E. Rominger, Esquire, and pursuant to Pa R.C.P.1028 (4) files the following preliminary
objection:
1. Count II of Plaintiff's complaint is entitled Breach of Warranty.
2. In Count I Defendant pleads that there was a contract between the parties for a
shipment of some magazines.
3. That count states that there was a contract to pay thirty three hundred ($3,300.00)
dollars for the magaTines and an additional twenty ($20.00) dollars for shipping.
4. In Count II, the plalntiff alleges that he demanded a modification to the comract.
5. Plaintiffasserts that the cashing of the check he sent with the additional twenty dollars,
aras an acceptance to modifying the original contract, said modifications being as to certain modes
or methods of shipping.
6. Plaintiff states that said methods were not employed or used.
7. Plaintiffgoes on to allege this created a Breach of Warranty.
8. However, Plaintiffhas already more properly plead in Count I a Breach of Comract.
Count II is essentially a restatement of that Breach of Contract an not tree Warranty action.
9. In paragraph 26, Plaintiff says the contract was modified, and that the express and
implied warranties thus created were breached.
10. Defendant demurs to Count II, Breach of Warranty, insomuchas the claim for
warranty is really a restatement of the earlier contract action,
11. Defendant demurs to the claim in Warranty, as no express warranty is plead, such as
would be cognizable under law.
12. Defendant demurs to any claim for implied warranty insomuch as Defendant has not
plead implied warranty as to the product's fitness, qnali~', nor fitness for a particular purpose.
WHEREFORE, Defendant demurs to Count II &the Plaintiff's complaint, and asks the
same be struck as it lacks legal sullieiency, or in the alternative, that the Court strike those
portions of the relief sought which are not plead sufficiently.
Respectfully Submitted,
ROMINGER & BAYLEY
Karl E. Rominger, Esquire
155 South Hanover Street
Carlisle, PA 17013
(717) 241-6070
Supreme Court ID # 81924
Attorney for Defendatnt
CERTIFICATE OF SERVICE
I, Karl E. Rominger, Esquire, attorney for Christopher Koch, do hereby certify that I this
day served a copy of the Complaint upon the following by depositing same in the United States
mail, postage prepaid, at Carlisle, Pennsylvania, addressed as follows:
Karl E. Rominger, Esquire
Attorney for Defendant
DAVID WEINIGER,
Plaintiff
CHRISTOPHER KOCH,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
No. 01-6895 Civil Term
PLAINTIFF'S ANSWER TO DEFENDANT'S PRELIMINARY OBJECTION
AND NOW, Plaintiff, David Weiniger, files this Answer to the Defendant's Preliminary
Objection and states as follows:
1. Admitted.
2. Denied. Plaintiff's Complaint speaks for itself.
3. Denied. Plaintiff's Complaint speaks for itself.
4. Denied. Plaintiff's Complaint speaks for itself.
5. Denied. Plaintiff's Complaint speaks for itself.
6. Denied. Plaintiff's Complaint speaks for itself.
7. Denied. Plaintiff's Complaint speaks for itself.
Denied. Plaintiffdenies that Count II, Breach of Warranty, is a restatement of
Count I, Breach of Contract. To the contrary, the Breach of Contract action is
based on the contract created for the sale and purchase of the merchandise.
Defendant breached the contract by failing and/or refusing (1) to deliver the
merchandise in the agreed upon manner and method of delivery and (2) to deliver
the merchandise to Plaintiff. The Breach of Warranty action is based on the
Defendant's breach of an express warranty and an implied warranty to deliver the
merchandise via registered and insured mail.
9. Denied. Plaintiff's Complaint speaks for itself.
10.
Denied. Plaintiff denies that Count II, Breach of Warranty, is a restatement of
Count I, Breach of Contract. By way of further response, Plaintiff incorporates by
reference thereto his answer to paragraph 8 hereinabove.
11.
Denied. Plaintiff denies that no express warranty was plead. To the contrary,
Plaintiff's Complaint specifically alleges the creation of an express warranty with
regard to the manner and method of shipment of the merchandise.
12.
Denied. Plaintiff denies that no implied warranty was plead. To the contrary,
Plaintiff's Complaint specifically alleges the creation of an implied warranty with
regard to the manner and method of shipment of the merchandise.
WHEREFORE, Plaintiff requests that this Honorable Court deny Defendant's
Preliminary Objection and proceed with a determination of the case on its merits.
Respectfully submitted,
Dawcl Wem~ger, P~mnt~/t'
CERTIFICATE OF SERVICE
The undersigned hereby certifies that he has this day served a true and correct copy of the
foregoing document upon the following by depositing same in United States first class mail,
postage prepaid, and addressed as follows:
Karl E. Rominger, Esquire
155 South Hanover Street
Carlisle, PA 17013
(.5