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HomeMy WebLinkAbout09-3898A 1 h Ur rtnNaTLVANtA COURT OF COMMON PLEAS Judicial District, County Of Cumberland NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date and in the case referenced below. Jonathan Kimmel NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. (71 - Harold E. Bender STATE Carlisle PA 17013 5/15/09 Ford K ler V8 Kimmel Jonathan DOCKET No. SIGNATURE OF APPELLANT OR ATTORNEY O GENT .? CVO-0000118-09 This block will be signed ONLY when this notation is required under Pa. If appellant was Claimant (see Pa. R.C.P.D.J. No. 1001(6) in action R.C.P.D.J. No. 1008B. This Notice of Appeal, when received by the District Justice, will operate as a before a District Justice, A COMPLAINT MUST BE FILED within twenty SUPERSEDEAS to the judgment for possession in this case. (20) days after filing the NOTICE of APPEAL. SWWW a of Prothonotary or Deputy PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see Pa.R.C.P.D.J. 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 Kyler Ford appellee(s), to file a complaint in this appeal Name of appellee(s) (Common Pleas No. A mv -/%p within twenty (20) days after service of rule or suffer entry of judgment of non pros. Signature of appellant or attorney to agent lop- RULE: To Kyler Ford , appellee(s) Name of appellee(s) (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) if you do not file a complaint within this time, a JUDGMENT OF NON PROS MAYBE ENTERED AGAINST YOU. (3) T?h/eydate of service of this rule if service was by mail is the date of the mailing. / Date: LL/u 20 i-/ r /. &?? Signature of P ry or Deputy YOU MUST INCLUDE A COPY OF THE NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH THI NOTICE OF APPEAL. AOPC 312-02 45 Ashton Street WHITE - COURT FILE TO BE FILED WITH PROTHONOTARY GREEN - COURT FILE YELLOW - APPELLANT'S COPY PINK -COPY TO BE SERVED ON APPELLEE GOLD -COPY TO BE SERVED ON DISTRICT JUSTICE PROOF OF SERVICE OF NOME OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (1'0) DAYS AFTER filing of the notice of appeal. Check applicable boxes.) COMMONWEALTH OF PENNSYLVANIA COUNTY OF ; ss AFFIDAVIT: I hereby (swear) (affirm) that I served ? a copy of the Notice of Appeal, Common Pleas upon the District Justice designated therein on (date of service) 20 ? by personal service ? by (certified) (registered) mail, sender's receipt attached hereto, and upon the appellee, (name) , on ,20 ? by personal service ? by (certified) (registered) mail, sender's receipt attached hereto. (SWORN) (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS DAY OF 20 Signature of affiant Signature of official before whom affidavit was made Title of official My commission expires on 120 w ? C ° o r?rtr c_ G 9 z ? 9 - .r COMMONWEALTH OF PENNSYLVANIA rni iNTY ni:• Cl=1lIIZRL'm r Mag. Dist. No.: 09-3-01 MW Name: Hon. HAROLD Z. HNlRDER Address: 35 N ORAWR ST BRIPPE!/ amm, PA Telephone: (717 ) 532-7676 17257-0361 JONATSAN =I11111111111111Xii 42 ABWMN ST CARLIBLE, PA 17013 CARLIBLZ, PA 17013 NOTICE OF JUDGM NT/TRANSCRIPT CIVIL CAE PLAINTIFF: NAME and ADDRESS rPORD, =YLER 295 PATIO RANCS BD BmPORD, PA 15522 L J VS. DEFENDANT: NAME and ADDRESS 5=I1?EL1 JONATRM -I 42 A922M ST L J Docket No.: CO-0000118-09 Date Filed: 4/15/09 THIS IS TO NOTIFY YOU THAT: Judgr"?rt: --1PORL PLAIM.1" (Date of Judgment) 5/15/09 © Judgment was entered for: (Name) POIRD, LYLER © Judgment was entered against: (Name) ZI111111111=s, JONATNAN in the amount of $ 2,902.91- F] Defendants are jointly and severally liable. Damages will be assessed on Date & Time This case dismissed without prejudice. Amount of Judgment Subject to Attachment/42 Pa.C.S. § 8127 Portion of Judgment for physical damages arising out of residential lease Amount of Judgment $ 2,706.42 Judgment Costs $ • Interest on Judgment $ • Attorney Fees $ Total $ 2, 802.91 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 MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENTITRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE JUDGMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. ZSe Date District Judge I certify that this is a true and correct copy of the record of the proceedings containing the judgment. Date , Magisterial District Judge My commission expires first Monday of January, 2012. SEAL AOPC 315-07 DATE PRINTED: 5/15/09 12:06:00 PU William H. Snyder, Jr., Esquire I.D. No. 22026 Attorney at Law 200 West Penn Street P. O. Box 656 Bedford, PA 15522 Attorney for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Kyler Ford, Civil Action Plaintiff No. 09-3898 Civil Term vs. Jonathan Kimmel, Defendant NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 S. Bedford St. Carlisle, Pennsylvania 17013 (717) 249-3166 (800) 990-9108 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Kyler Ford, Civil Action Plaintiff No. 09-3898 Civil Term vs. Jonathan Kimmel, ; Defendant COMPLAINT NOW COMES the Plaintiff in the above-captioned matter, Kyler Ford, by his attorney, William H. Snyder, Jr., and files this Complaint against the above-named defendant upon a cause of action whereof the following is a statement: 1. The Plaintiff is Kyler Ford, an adult, sui juris individual whose residence address is 295 Patio Ranch Road, Bedford, PA 15522. 2. The Defendant is Jonathan Kimmel, an adult, sui juris individual, whose residence address is 42 Ashton Street, Carlisle, PA 17013. 3. The Plaintiff is the owner of a certain 1994 Ford Ranger XLT pickup truck, and he was the owner of this vehicle on the date of the automobile collision on or about May 7, 2008. 4. On that date in the parking lot of the Bard Townhouses in Shippensburg, Cumberland County, Pennsylvania, Plaintiffs vehicle was lawfully parked. 5. The Defendant was operating a motorcycle in the parking lot, lost control of it and ran into Plaintiffs vehicle and another vehicle. 6. The defendant did not own the motorcycle but had the owner's permission to operate it. 7. The Defendant failed to use due care in the circumstances in that he accelerated when he should have either braked or not accelerated, and either did not know how to operate the motorcycle safely or mistakenly applied the throttle instead of the brakes, or both, causing the loss of control which led to the impact. 8. It was as the direct and proximate result of the Defendant's failure to use due care in the circumstances in this regard that he ran into two parked vehicles, one of which was Plaintiffs pickup truck. 9. The impact between the Defendant's moving motorcycle and Plaintiffs stationary pickup truck caused damage to the left side door and quarter panel of the pickup truck, which is estimated to cost $2,706.41 to repair, as set forth in an estimate of repairs by T.B.'s Body Shop, 2024 Orrstown Rd., Shippensburg, PA 17252, dated October 31, 2008, a true and copy of which is attached hereto (Exhibit A) and incorporated by reference herein, an amount less than the estimated fair market value of the vehicle, per Kelley Blue Book and NADA guidelines for the vehicle, true and correct copies of which are attached hereto (Exhibits B and Q and incorporated by reference herein. WHEREFORE, Plaintiff respectfully demands judgment against the Defendant in the amount of $2,706.41 and damages for delay in payment together, together with costs, which amount is within the compulsory arbitration limit for this jurisdiction. L?? William H. yder, Jr., Esquire ID No. 22026 200 West Penn Street P. O. Box 656 Bedford, PA 15522 Date: 10131/2008 01:W PM Estimate ID: 2400 Estimate Version: 0 PreNminary Profile ID: CUSTOMIZED T.B.'S Body Shop 2024 Orrstown Rd, ShOpensbury, PA 17257 (717)0-loss Fare (717)530-7657 Damage Assessed By: Tim Burkholder Deductible; UNKNOWN Owner: KYLER FORD Telephone: Home Phone: (814) 285-7242 Mitch Service: 912621 Line Item 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Description: 1994 Ford Ranger XLT Body Style: 2D Pkup T Bed 114' WB VIN: 1 F TCR 11 X 1 RTA03716 Options: 4WD OR AWD Drive Train: 4.01. inj 6 Cyl 4WD Entry Labor Line Item Number Type Operation Description Part Type/ Dollar Labor 205340 REF BLEND L FENDER OUTSIDE Part Number Amount Emits 205790 BDY REMOVE/INSTALL L FENDER ADHESNE NAMEPLATE Exle C 1.0 R&R Time Used to R&I Operation ft . 0.2 221440 AUTO BDY REF REMOVE/REPLACE REFINISH L CAB CORNER PALL 13uaI Recycled Part 100 00' 8.5 # L ADD FOR PILLAR . AUTO REF REFINISH L CAB CORNER PANEL C 0.5 900500 BDY ' REMOVE/REPLACE DECALS C 2.0. 219530 BDY REMOVEIREPLACE L FRf DOOR SHELL ?1. REPL PART 50.00 ' 0.2' AUTO REF REFINISH L FRT DOOR OUTSIDE Q uaf Rem Part 125.00' 4.3 # 4UT0 REF REFINISH L FRT ADD FOR JAMBS & INTERIOR C . 220160 BDY REMOVEANSTALL L FRT DOOR HANDLE & LOCK CYL 1 C 1.0 2248W BOY REMOVE/REPLACE L PICKUP BED SIDE PANEL INC # kUTO REF REFINISH L BED SIDE PANEL OUTSIDE t?ual Rimed Part 200.00. 1 # 1UTO REF ADD'L OPR CLEAR COAT 3.2 C 3.2 ?UTO ADD'L COST PAINT/MATERIALS 2.5- ?UTO ADD'L COST SHOP MATERIALS 21 .30 ' ?UTO ADD'L COST HAZARDOUS WASTE DISPOSAL 6 16.06 ' 8.00 ' " - Judgment item # - Labor Note Applies C - Included in Clear Coat Calc ESTIMATE RECALL NUMBER: 10/31/200813:08:18 2400 Mitchell Data Version: OEM: AUG 0$ V UftMsb is a Turk of fi (mil UfttaMate Version: 6.5.020 Copyright (C) 19N - 2108 Mitchell tnlemational AN Rights Reserved Exhibit A - page 1 Date: 10131/2006 01:08 PM Estimate ID: 2400 Estimate Version: 0 Preliminary Profile ID: CUSTOMIZED Estimate Totals Add I 1. Labor Subtotals Units Rate Law Sublet Amount Amount Totals It. Para Replacement Summary q; Body Refinish 26.1 44.00 12.3 44.00 0.00 0.00 0 00 0 00 1,148:40 T 5 Taxable Parts 475.01 . . 41.20 T Parts Adjustments 1 Taxable Labor 1,689.60 Sales Tax a 6.000% 34-a Labor Tax C 6.000% 101.38 Total Replacement Parts Amount 616-13 Labor Summary 38.4 1,790.98 111. Additional Costs Amount IV. Adjustments Taxable Costs Customer R ty Sales Tax 6.000% 16.94 esponsibiii Total Additional Costs 29930 1. Total Labor. If. Total III. ti Total Additional Costs: Gross Total: IV. ESTIMATE RECALL NUMBER: loni 00813.08:18 2400 Mitchell Data Version: OEM: AUG_08_V UltaMate Is a Trademark of Mitchell International UltraMate Version: 6.6.020 Copyrrght (C)A1994 - 2008 Mtd*N ll ROW Reserved rational Exhibit A - page 2 2 71B.An Total Adjustments: a co N*Tota Z7" r the actual _repak ' 1994 Ford Ranger - Suggested Retail Value - Official Kelley Blue Book Site Page 1 of 2 Kelley Blue Book __ - r THE TRUSTED RESOURCE L _-? advertisement x Don"t Buy a Used Car carfax.com Without CARFAXe 4 Home New Cars Used Cars Research & Explore News & Reviews Ready To Buy Classifieds Loans ikInsurance K80' Green Used Car Prices I Search Used Car Listings I Certified Pre-owned I Compare Vehicles Perlect Car Finder Most Researched vehicles I CARFAX vehicle History welcome Back I Sign In I Create Ar; ount I My KBE ZIP Code: 155Z2 Trade-In Value '- Private Party Value BLUE BOOK' 5 WS3ELL:8ET tl VW an semen Suggested Retail Laurel -Value Photo Gallery Condition . 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Lower your Insurance Payment Finance & Insurance Center Note: Vehicles with low il m eage that are in exceptionally good condition andror include a manufacturer certification can be worth a si if Premium gn icantly higher value than the Retail price shown. = Disclosure statement Trusted Partners Find a Dealer Donate Your Vehicle Sell Your Car mm.?:.pu rN Sell Free Dealer Price Quote Ne_w Car Dealer Quote Auto Resources Articles Appraising Ycur_Car Exhibit C We found 200 1994 Ford listings of this model within 25 miles of your ZIP code Click here to see there http://www.nadaguides-com/usedcars.aspx?LI=1-21-1-5013-0-0-0&1=1 &w=21 &p=1 &f=5... 4/14/2009 New Car Used Car Find Your Car I Reviews I Compare Cars Car Loans & Insurance I Dealer Quote Blog IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Kyler Ford, : Civil Action Plaintiff No. 09-3898 Civil Term vs. Jonathan Kimmel, Defendant VERIFICATION I, Kyler Ford, the Plaintiff in the foregoing Complaint verify that the statements made in this Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities. Date: July 1, 2009, Kyler Ford IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Kyler Ford, Civil Action Plaintiff No. 09-3898 Civil Term vs. Jonathan Kimmel, Defendant CERTIFICATE OF SERVICE I certify that I am this day serving the foregoing document upon the Defendant: Jonathan Kimmel 42 Ashton St. Carlisle, PA 17013 by first class mail, postage prepaid. Dated: July 1, 2009 W /? c) William H. Snyder, Jr., Esquire Attorney at Law 200 West Penn Street P. O. Box 656 Bedford, PA 15522 ?? r nF TN" .C P' v llt'1?Y 2004 JUL IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Kyler Ford, Civil Action Plaintiff No. 09-3898 Civil Term vs. Jonathan Kimmel, Defendant REPLY TO NEW MATTER NOW COMES the Plaintiff in the above-captioned matter, Kyler Ford, by his attorney, William H. Snyder, Jr., and files this Reply to the New Matter set forth in the Answer of the Defendant: 11. Denied. The allegation in this paragraph is a legal conclusion to which no answer is required. 12. It is denied that Plaintiff s claims are barred by the applicable statute of limitations. The cause of action arose on May 7, 2008. This action was commenced on or about April 15, 2009, with the filing of a complaint at Docket No. CV-118-09 in the office of District Justice Harold E. Bender, Magisterial District 09-3-01, in Shippensburg, Pennsylvania. The applicable statute of limitations is two years (42 Pa.C.S. §5524}. 13. It is denied that the damages to Plaintiff s vehicle were caused in whole or in part by negligent acts or omissions of individuals or entities other than the Defendant; on the contrary, the Defendant himself caused the damages as set forth in the Complaint. 14. It is denied that the damages to Plaintiff s vehicle were caused by the intervening or superseding negligence of persons or entities over whom the Defendant exercised no control or authority and for whose conduct Defendant has no responsibility; on the contrary, the Defendant himself caused the damages as set forth in the Complaint. 15. Denied; on the contrary, the damages set forth in the Complaint, as specificially detailed on the repair estimate attached as Exhibit A, are the damages caused by the Defendant. 16. Denied; on the contrary, Plaintiff parked his vehicle legally and properly in the parking lot, and it was just sitting there when the Defendant ran into it. Nothing in Plaintiffs conduct caused the damages set forth in the Complaint. 17. Denied. Plaintiff has taken proper care of the vehicle since the date of the incident. He promptly took the vehicle to a repair shop in Bedford (his home town) which issued a repair estimate on May 12, 2008, significantly higher than the repair estimate dated October 31, 2008, attached to the Complaint, which was not procured until after Defendant had been informed of and objected to the May 12, 2008 repair estimate. 18. Denied. The allegation in this paragraph is a legal conclusion to which no answer is required. Further the allegation is speculative. Plaintiff specifically denies that he has failed to maintain or preserve the pickup truck in its immediate post-accident condition. He further denies that he has any duty to do so, or that "spoliation" is available as a defense in an action for damages to personal property resulting from the Defendant's negligent conduct. 19. Denied. The Defendant has no right to "reserve the right" to file additional defenses, counterclaims, or third-party amended complaints, such matters being generally covered under Rule 1033 relating to Amendment. 20. Denied. The question of proper venue is a matter under Rule 1028 (a) (1), and has been waived by failure to raise the same by Preliminary Objection pursuant to Rule 1032. 21. Denied. Plaintiff inherited the vehicle from his father. 22. Denied. Plaintiff has procured estimates of repair from two repair facilities, both of which to the best of his knowledge are competent and reliable, and is seeking recovery of damages exactly in the amount of the lesser of the two. 23. While it is admitted that the two estimates of repair differ, it is specifically denited that there is any overstatement of the damages. They have both been provided in good faith by competent and reliable repair facilities, and neither overstate the extent of the necessary repairs or the cost thereof. 24. Denied. On the contrary Plaintiff seeks recovery only of an amount sufficient to restore the vehicle to the condition it was in immediately before the incident. 25. Denied. On the contrary, there is no question of profiting from the alleged incident. The value of the pickup truck has been taken from reliable sources, the estimates of repairs have been procured from competent, reliable repair facilities, and there is nothing "inflated" about them. 26. Denied. On the contrary, the Defendant has not previously offered a reasonable settlement. The Defendant has not offered Plaintiff any sum of money to cover the fair and reasonable costs of repair; rather he has offered Plaintiff the sum of $2,500 in exchange for transfer of ownership of the pickup truck as is. That amount is lower than the lowest estimate of fair market value of the vehicle in its condition immediately prior to the incident. 27. Denied. On the contrary, the Defendant has offered to purchase the pickup truck for $2,500, which is less than the lowest estimate of fair market value of the vehicle in its condition immediately prior to the incident. 28. Denied. On the contrary, the fair market value of the pickup truck was at least $3,100. 29. Denied. Making the pickup truck available for inspection in Cumberland County is not something Plaintiff is legally obligated to do. It has been inspected and estimated by a Cumberland County repair facility as set forth in Exhibit A to the Complaint. WHEREFORE, Plaintiff respectfully demands judgment against the Defendant as requested in the Complaint. William H~nyder~Jr., Esquire ID No. 22026 200 West Penn Street P. O. Box 656 Bedford, PA 15522 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Kyler Ford, Civil Action Plaintiff No. 09-3898 Civil Term vs. Jonathan Kimmel, Defendant VERIFICATION I, William H. Snyder, Jr., counsel for Plaintiff in the above-captioned matter verify that the statements made in this Reply to New Matter are true and correct to the best of his knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities. Date: ~ ri , 2009 (~J,~~y~,,__ ,~ William H. Snyder, Jr. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Kyler Ford, Civil Action Plaintiff No. 09-3898 Civil Term vs. Jonathan Kimmel, Defendant CERTIFICATE OF SERVICE I certify that I am this day serving the foregoing document upon Counsel for the Defendant: Mark E. Kimmel 45 Ashton St. Carlisle, PA 17013 by first class mail, postage prepaid. Dated: _/~,,~ it , 2009 William H. Snyder, Jr., Esquire Attorney at Law 200 West Penn Street P. O. Box 656 Bedford, PA 15522 ~~ ~ ~~ 18Q9 AUK 1 ~ ~M ~~ 3 6 E.F,~? t~trtlY fSYLVANI~-