HomeMy WebLinkAbout09-6197Our File No.: 220567
APOTHAKER & ASSOCIATES, P.C.
BY: David J. Apothaker, Esquire, Esq.
Attorney I.D.#38423
520 Fellowship Road C306
Mount Laurel, NJ 08054
(800) 672-0215
Attorneys for Plaintiff
ARROW FINANCIAL SERVICES LLC
c/o Apothaker & Associates, P.C.
520 Fellowship Road C306
Mount Laurel, NJ 08054
Plaintiff,
VS.
JODI A WITMER
611 MALLARD RD APT 6B
CAMP HILL, PA 17011-1217
Defendant.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
NO.: Dq- b(47 (-'CTIRI
NOTTCF
You have been sued in court. If you wish to defend against the claims set forth in the folp
you must take action within twenty (20) days after this complaint and notice are served, by ento
appearance personally or by attorney and filing in writing with the court your defenses or obj?
claims set forth against you. You are warned that if you fail to do so the case may proceed withM
judgment may be entered against you by the court without further notice for any money cl
complaint or for any other claim or relief requested by the plaintiff. You may lose money or prod
rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NI
LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORT14
FIND OUT WHERE YOU CAN GET LEGAL HELP.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE T
YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES 'P,
PERSONS AT A REDUCED FEE OR NO FEE.
CUMBERLAND COUNTY BAR ASSOCIATION
2 LIBERTY AVENUE
CARLISLE, PA 17013
717-249-3166
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Our File No.: 220567
APOTHAKER & ASSOCIATES, P.C.
BY: David J. Acpothaker, Esquire, Esq.
Attorney I.D.#38423
520 Fellowship Road C306
Mount Laurel, NJ 08054
(800) 672-0215
Attorneys for Plaintiff
ARROW FINANCIAL SERVICES LLC
c/o Apothaker & Associates, P.C.
520 Fellowship Road C306
Mount Laurel, NJ 08054
Plaintiff,
vs.
JODI A WITMER
611 MALLARD RD APT 6B
CAMP HILL, PA 17011-1217
Defendant.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
CIVIL ACTION COMPLAINT
FIRST COUNT
1. Plaintiff is ARROW FINANCIAL SERVICES LLC c/o Apothaker & Associates, I .(., 520
Fellowship Road C306, Mount Laurel, NJ 08054.
2. Defendant(s) is/are JODI A WITMER, an adult individual residing at 611 MALLARD RD APT
6B CAMP HILL, PA 17011-1217.
3. Plaintiff, ARROW FINANCIAL SERVICES LLC, is the Assignee and Successors n Interest of
Account #4361451900445271; and said account was issued to Defendant(s) by WASHINGT(T MUTUAL
BANK, the Original creditor.
4. Defendant received, accepted and used the account to its benefit.
5. This account is in default and Defendant(s) has an unpaid balance of $6,021.76. A true and correct
copy of the total due and owing is attached hereto, made a part hereof and marked as Exhibit "A".
6. All credits, if any, to which Defendant(s) is entitled, have been applied to the acfount and are
included in Exhibit "A".
i
7. Although demand has been made, Defendant(s) has failed to make payment of the amount due as
above.
WHEREFORE, Plaintiff demands judgment in favor of Plaintiff and against Defendant(s) f6r the sum of
$6,021.76 and requests this Court award costs to the extent permitted by applicable law.
APOTHAKER & AS IATES, P.C.
Attorney f r Pl tiff
A Law Firm Enl d in lebt Collection
BY:
David J. ApoV4k'e'r, Esquire
Dated: 9/9/2009
Our File No.: 220567
VERIFICATION
David J. Apothaker, Esquire hereby states that I am counsel for plaintiff in this action, and that I am authorized to
take this Verification, and that the statements made in the foregoing Civil Action Complaint are true] and correct to
the best of my knowledge, information, and belief. The undersigned understands that the statements therein are
made subject to the penalties of 18 Pa.C.S.A. 4904 rel ng t unworn falsification to authorities.
David Apothaker, Esquire
Attor'hqy for Plaintiff
DATE: 9/9/2009
JODI A WITMER
611 MALLARD RD APT 6B
CAMP HILL, PA 17011-1217
ARROW FINANCIAL SERVICES LLC
STATEMENT OF ACCOUNT
Debtor's Name: JODI A WITMER
Account Number: 4361451900445271
Original Creditor: WASHINGTON MUTUAL BANK
Balance Due: $6,021.76
Our File No.: 220567
EXHIBIT "A"
0
OF TNT PP. TARY
2004 SEP 1 l4 Pty 1: 4 9
?L1?a 1 <y' Ul?+? i I
M* awsgI
Sheriffs Office of Cumberland County
R Thomas Kline
Sheri
Ronny R Anderson 4,01Lr ?t u+rr6rCt ?? t?c T}
Chief Deputy
t ZC?g _
-[ s. Yl . ] Pjt
21 6
Jody S Smith' _T
Civil Process Sergeant 0MCP .;,F T'?E ?ERIFr r'' !n
J ??fa7?rEdward L Schorpp
Solicitor
Arrow Financial Services LLC
vs. Case Number
Jodi A. Witmer 2009-6197
SHERIFF'S RETURN OF SERVICE
09/15/2009 08:44 PM - William Cline, Deputy Sheriff, who being duly sworn according to law, states that on
September 15, 2009 at 2044 hours, he served a true copy of the within Complaint and Notice, upon the
within named defendant, to wit: Jodi A. Witmer, by making known unto herself personally, at 611 Mallard
Road Apt. 6B Camp Hill, Cumberland County, Pennsylvania 17011 its contents and at the same time
handing to her personally the said true and correct copy of the same.
SHERIFF COST: $41.50 SO ANSWERS,
September 16, 2009
R THOMAS KLINE, SHERIFF
U By
ty Sheriff
Joseph K. Goldberg, Esquire
2080 Linglestown Road, Suite 106
Harrisburg, PA 17110
(717) 703-3600
igoldberg@ssbc-law.com
PA ID #46782
IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA
ARROW FINANCIAL SERVICES LLC,
Plaintiff CIVIL TERM LAW
V.
JODI A. WITMER,
Defendant
NO. 09-6197
JURY TRIAL DEMANDED
NOTICE TO PLEAD
TO: ARROW FINANCIAL SERVICES, LLC
c% David J. Apothaker, Esquire
You are hereby notified to file a written response to the enclosed Preliminary
Objections within twenty (20) days from service hereof or a judgment may be entered
against you.
Jos9p4h K. Gold quire
Att6 rney for D en
Joseph K. Goldberg, Esquire
2080 Linglestown Road, Suite 106
Harrisburg, PA 17110
(717) 703-3600
jgoldberg@ssbc-law.com
PA ID #46782
IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA
ARROW FINANCIAL SERVICES LLC,
Plaintiff CIVIL TERM (LAW)
V. NO. 09-6197
JODI A. WITMER, JURY TRIAL DEMANDED
Defendant
PRELIMINARY OBJECTIONS TO COMPLAINT
AND NOW COMES the Defendant, Jodi A. Witmer, who files her Preliminary
Objections to the Plaintiffs Complaint, as follows:
1. Plaintiff filed suit against Defendant alleging that Defendant owes money
to Plaintiff arising out of an account issued by a predecessor of the Plaintiff. Comp. 13.
2. The Defendant was served with the Complaint on September 15, 2009.
First Preliminary Objection - Pa. R.C.P. No. 1028(a)(2) - Failure to conform
to rule of court (improper Verification)
3. Pa. R.C.P. No. 1024 requires that every Complaint be verified by a party,
unless the party is without sufficient knowledge or information with which to verify, or,
alternatively, that the party is outside the jurisdiction of the court and its verification
cannot be obtained within the time allowed for pleading. Pa. R.C.P. No. 1024(c)(1) and
(2).
4. The Complaint is verified by counsel of record for the Plaintiff, and not an
employee or other agent of the Plaintiff.
5. The Verification does not state that the party was unable to sign it "within
the time allowed for pleading," nor the reason why the Verification is not made by a
party, as required by Pa. R.C.P. No. 1024(c).
Second Preliminary Objection - Pa. R.C.P. No. 1028(a)(2) - Failure to conform to
rule of court (failure to attach written assignments of debt)
6. The Plaintiff is not the original creditor, but rather an assignee of at least
one predecessor. Comp. 13. Since the Plaintiffs right to maintain an action as an
assignor is predicated upon a written assignment, that writing must be attached to the
Complaint, pursuant to Pa. R.C.P. No. 1019(i).
7. By failing to attach a copy of the assignment of the debt to the Plaintiff,
the Complaint does not comply with an express rule of court, in violation of Pa. R.C.P.
No. 1028(a)(2).
Third Preliminary Objection - Pa. R.C.P. No. 1028(a)(2), (3) - Failure to conform
to rule of court, as Plaintiff is not the real party in interest
8. Pa. R.C.P. 2002(a) requires that an action be brought by the real party in
interest.
9. By failing to attach a copy of the necessary writing by which the Plaintiff
would become the assignee of the account - and this the real party in interest - the
Plaintiff has failed to conform with the requirements of the aforesaid rule.
10. Since this matter was not brought by the real party in interest, it must be
dismissed.
Fourth Preliminary Objection - Pa. R.C.P. No. 1028(a)(2), (3) - Failure to conform
to rule of court, and insufficient specificity
11. The Complaint contains only a bald assertion of the amount the Plaintiff
2
claims is owed by the Defendant. It provides no detail as to the date(s) on which the
debts were incurred, the amounts incurred on each date, the dates or amounts of
payments, nor dates of accrual and amounts of interest charges and other fees.
12. Pa. R.C.P. No. 1019 and Pa. R.C.P. 1028(a)(3) require that the above
detail be included in a Complaint of this type.
13. By not including the requisite detail of the account, the Complaint fails to
conform to an express rule of Court.
Fifth Preliminary Objection - Pa. R.C.P. No. 1028(a)(2) - Failure to
conform to rule of court (failure to state whether agreement is oral
or written, state its terms, and/or attach written contract upon which
the claim is based)
14. The Complaint alleges the existence of some type of contract between the
parties, referred to as the "account."
15. Pursuant to Pa. R.C.P. No. 1019(h), where a claim asserted is based
upon an agreement, the pleading must state whether the agreement is oral or written.
16. The Complaint does not state whether the agreement is oral or written.
17. Pursuant to Pa. R.C.P. No. 1019(i), if the agreement is written, it must be
attached to the pleading or, if not, the pleader must explain its absence and set forth
the substance of the agreement.
18. The Plaintiff has failed to describe the terms of the agreement, nor has it
attached a copy of a written agreement or explained its absence.
3
WHEREFORE, the Defendant demands that her Preliminary Objections be
sustained, and the Plaintiff's Complaint be dismissed.
Respectfully submitted,
oldb rg, Esquire
:A'0 ney ID No 6782
Linglest n Road, Suite 106
Harrisburg, 17110
(717)703-3600
Attorney for Defendant
4
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that on theZlay of , 2009, 1
served a copy of the foregoing Preliminary Objections to Complaint, by first-class mail,
postage prepaid, upon the following:
David J. Apothaker, Esquire
Apothaker & Associates, P.C.
520 Fellowship Road, C306
Mount Laurel, NJ 08054
Attorney for Plaintiff
FILED
OF THC
2109 SE P 28 FiI, 12:
PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and submitted in triplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next
Argument Court.)
----------------------------------------------------------------------------------
CAPTION OF CASE
(entire caption must be stated in full)
Arrow Financial Services, LLC
vs.
Jodi A. Witmer
No. 09-6197 Civil Term
1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to
complaint, etc.): 04 6 WA1Aaky 011k 70 aAj44h7
2. Identify all counsel who will argue cases:
(a) for plaintiffs:
David J. Apothaker, Esq., 520 Fellowship Road, C306
(Name and Address)
Mt. Laurel, NJ 08054
(b) for defendants:
Joseph K. Goldberg, Esq., 2080 Linglestown Road
(Name and Address)
Harrisburg, PA 17110
3. 1 will notify all parties in writing within two days that this case has been listed for
argument.
4. Argument Court Date: November 25, 2009
Defendant
October 19, 2009 Attorney for
Date:
INSTRUCTIONS:
1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR
(not the Prothonotary) before argument.
2. The moving party shall file and serve their brief 12 days prior to argument.
3. The responding party shall file their brief 5 days prior to argument.
4. If argument is continued new briefs must be filed with the COURT
ADMINISTRATOR (not the Prothonotary) after the case is rellsted.
.0-
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that on the 84day of ?cc 1y" 2009, 1
served a copy of the foregoing Praecipe for Listing Case for Argument, by first-class
mail, postage prepaid, upon the following:
David J. Apothaker, Esquire
Apothaker & Associates, P.C.
520 Fellowship Road, C306
Mount Laurel, NJ 08054
Attorney for Plaintiff
CA /AC
^?c FP,?)Tl T,- A l ITARY
2009 OCT 20 FIN 1: 5
CM :. j 1} { 7
M
Our File No.: 220567
APOTHAKER & ASSOCIATES, P.C.
By: Kimberly F. Scian, Esquire
Attorney I.D. #55140
520 Fellowship Road C306
Mount Laurel, NJ 08054
(800) 672-0215
Attorneys for Plaintiff
ARROW FINANCIAL SERVICES LLC
c/o Apothaker & Associates, P.C.
520 Fellowship Road C306
Mount Laurel, NJ 08054
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
NO.: 09-6197
Plaintiff,
VS.
JODI A WITMER
611 MALLARD RD APT 6B
CAMP HILL, PA 17011-1217
Defendant.
Civil Action
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.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE
YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE
PERSONS AT A REDUCED FEE OR NO FEE.
CUMBERLAND COUNTY BAR ASSOCIATION
2 LIBERTY AVENUE
CARLISLE, PA 17013
717-249-3166
Our File No.: 220567
APOTHAKER & ASSOCIATES, P.C.
By: Kimberly F. Scian, Esquire
Attorney I.D. #55140
520 Fellowship Road C306
Mount Laurel, NJ 08054
(800) 672-0215
Attorneys for Plaintiff
ARROW FINANCIAL SERVICES LLC
c/o Apothaker & Associates, P.C.
520 Fellowship Road C306
Mount Laurel, NJ 08054
Plaintiff,
VS.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
NO.: 09-6197
Civil Action
JODI A WITMER
611 MALLARD RD APT 6B
CAMP HILL, PA 17011-1217
Defendant.
AMENDED COMPLAINT
FIRST COUNT
1. Plaintiff is ARROW FINANCIAL SERVICES LLC c/o Apothaker & Associates, P.C., 520
Fellowship Road C306, Mount Laurel, NJ 08054.
2. Defendant is JODI A WITMER, an adult individual residing at 611 MALLARD RD APT 6E
CAMP HILL, PA 17011-1217.
3. Defendant applied for and received a credit card from WASHINGTON MUTUAL BANK
account number 4361451900445271.
4. Defendant used the credit card, account number 4361451900445271, and as of September 23, 2009
there was an outstanding balance due and owing in the amount of $6,021.76.
5. Plaintiff purchased this account and presently owns and holds this account.
6. When Plaintiff purchased this account there was an outstanding balance due and owing of
$6,021.76. Attached hereto as Exhibit "A" are the Assignment and Statements.
WHEREFORE, Plaintiff demands judgment in favor of Plaintiff and against Defendant(s) for the sum
of $6,021.76 and requests this Court award costs to the extent permitted by applicable law.
APOTHAKER & ASSOCIATES, P.C.
Attorney for Plaintiff
A Law Firm EnizaaedAn Debt Collection
Kimb'erly/'. Scian, Esquire
Dated: November 6, 2009
VERIFICATION
Kimberly F. Scian, Esquire hereby states that I am counsel for plaintiff in this action, and that I am authorized to
take this Verification, and that the statements made in the foregoing Civil Action Complaint are true and correct to
the best of my knowledge, information, and belief. The undersigned understands that the statements therein are
made subject to the penalties of 18 Pa.C.S.A. 4904 relating to unswom falsification to authorities.
APOTHAKER & ASSOCIATES, P.C.
Attorney for Plaintiff
A Law Firm Engaged ill Debt Collection
y V. Scian, Esquire
Dated: November 6, 2009
Defendant's Name: JODI A WITMER
Account Number: 4361451900445271
Our File No.: 220567
APOTHAKER & ASSOCIATES, P.C.
By: Kimberly F. Scian, Esquire
Attorney I.D. #55140
520 Fellowship Road C306
Mount Laurel, NJ 08054
(800) 672-0215
Attorneys for Plaintiff
ARROW FINANCIAL SERVICES LLC
c/o Apothaker & Associates, P.C.
520 Fellowship Road C306
Mount Laurel, NJ 08054
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
NO.: 09-6197
Plaintiff,
VS.
JODI A WITMER
611 MALLARD RD APT 6B
CAMP HILL, PA 17011-1217
Defendant.
Civil Action
CERTIFICATION OF SERVICE
I, Kimberly F. Scian, Esquire, attorney for Plaintiff, certify that on November 6, 2009, I mailed a copy
of Plaintiff's Amended Complaint by Regular mail to:
JOSEPH GOLDBERG, Esquire
2080 LINGLESTOWN RD STE 106
HARRISBURG, PA 17110
APOTHAKER & ASSOCIATES, P.C.
Attorney for Plaintiff
A Law Firm Engaged ' Pg.WCollection
r`?
BY•
Ki er F. Scian, Esquire
Dated: November 6, 2009
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?Indioate change of address on back
Payment Minimum Balance as of Account
Due Date Payment BM18120M Number
05115p8 51,529.80 =5,666.95 4361.4519.0044.5271
AMOUNT ENCLOSED (uas blue or black Ink)
N
000 Make Checks Payable to Washington Mutual
1,11. ilillllrrllr1r1 fLrlirlrtlllslLd1i11.11dt1 irtii11 6ll..
WASHINGTON MUTUAL CARD SERVICES
P.O. BOX 660487
DALLAS TX 75266-0487
UttdtlJtiiL616t,il,iil1tttit,il,rLlt,tllriltpoll i6tti
377069
JODI A WITMER
611 MALLARD RD # 6B
CAMP HILL PA 17011-1220
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4361451900445271 0152980 0566695 0015000 18
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DETACH HERE
GIAU092 377069
Messages
YOUR ACCOUNT IS PAST DUE AND OVER ITS CREDIT LINE Please pay the minimum payment fated above along
with the ovedimit amount immediately. You may also call us at 1-800-280-9441 or visit us at www.womucanhelp.comfor
payment options.
Your account is closed Any balance you have will continue to accrue finance charges and fees and you will continue to
receive billing statements until your balance is paid in full. Please destroy any checks and credit cards relating to this account.
You will also need to cancel all automatic charges that are billed to this acoount. Closing your account does not stop these
charges from being submitted by the merchant.
Account Summary
Statement Closing Date 04/18/08 Credits & Payments $0.00
Credit IJna $4,831.00 Cash Advances + $0.00
Available Credit for Cash Advances as of 04118/06 $0.00 NEW BALANCE = $5,666.95
Transactions
Data Description Amount
No Activity This Month
FOR BILLING ERRORS AND IMPORTANT INFORMATION, SEE REVERSE OF PAGE 1
Balance Category
Average Daily Periodic Corresponding Finance Grace
Daily Balance Rate APR Charges Terms
Purchase - Current Cycle $2,000.62 .0794%' 28.99X• $47.65 Term A
Cash - Current Cycle $3,597.18 .0794%' 28.991V $85.68 Term B
Etfectlve ANNUAL PERCENTAGE RATE (APR): 28.58% 'These rates may vary.
The Corresponding APR is the rate of interest you pay when you carry a balance on purchases or cash advances. The Effective APR represents
your Intel anence charges - including transaction fees such as cash advance and balance trmnfer fees • e>Ipresscd ea a percentage.
For 24-hour Automated Account Information, please call 1-M64192-W/WU(Mil) or visit us at www.wamucards.com
Your account Is Issued by Washington Mutual Banc, Henderson, NV.
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a
ARROW FINANCIAL SERVICES LLC,
Plaintiff
v.
IN THE COURT OF (:OMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
JODI A. WITMER,
Defendant
CNIL ACTION - LA'JV
No. 09-6197 Civil Term
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED
COMPLAINT
BEFORE OLER, J., AND EBERT J.
ORDER OF COURT
AND NOW, this 13`h day of May, 2010, upon consideration of the Defendant's
Preliminary Objections to Plaintiff's Amended Complaint, and the briefs filed by the parties and
after argument,
IT IS HEREBY ORDERED AND DIRECTED that Defendant's Preliminary
Objections to Plaintiff's Amended Complaint are SUSTAINED. This Court grants Plaintiff
leave to file a legally sufficient amended Complaint within 30 days of the date of this Order.
By the Court,
~/ Kimberly F. Scian, Esq.
Attorney for Plaintiff
oseph K. Goldberg, Esq.
Attorney for Defendant
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M. L. Ebert, Jr., J.
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ARROW FINANCIAL SERVICES LLC,
Plaintiff
1N THE COURT OF (:OMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
v.
JODI A. WITMER,
Defendant
CIVIL ACTION - LA`JV
No. 09-6197 Civil Term
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAII~TTIFF'S AMENDED
COMPLAINT
BEFORE OLER. J., AND EBERT J.
OPINION AND ORDER OF COURT
Ebert, J., May 13, 2010 -
On December 12, 2009, Jodi A. Witmer (hereinafter Defendant) filed Preliminary
Objections to Arrow Financial Services, LLC's (hereinafter Plaintiff) Amended Complaint.
Plaintiff's one count Amended Complaint against Defendant seeks damages based on
Defendant's default on a credit card account. Defendant's Preliminary Objections raised five
issues regarding Plaintiff's Amended Complaint. They include: (1) failure to conform to rule of
court (improper Verification); (2) failure to conform to rule of court (failure to attach written
assignments of debt); (3) failure to conform to rule of court (claiming Plaintiff is not the real
party of interest); (4) failure to provide sufficient specificity in a pleading; and (5) failure to
conform to rule of court (failure to state whether agreement is oral or written, state its terms,
and/or attach a written contract upon which the claim is based). Defendant's Preliminary
Objections will be SUSTAINED.
2
STATEMENT OF FACTS
Plaintiff asserts it is an assignee and successor in interest to the original creditor on a
certain credit card account issued to Defendant.' Plaintiff alleges Defendant used the credit card,
resulting in an outstanding balance.2 Plaintiff alleges Defendant has not paid amounts owing
under the account and seeks a judgment for $6,021.76, plus costs.3
PROCEDURAL HISTORY
On September 14, 2009, Plaintiff instituted this action against Defendant in the Court of
Common Pleas of Cumberland County, Pennsylvania. On September 28, 2009, Defendant filed
Preliminary Objections to Plaintiff's Complaint. On November 17, 2009, Plaintiff filed an
Amended Complaint. On December 11, 2009, Defendant filed Preliminary Objections to
Plaintiff's Amended Complaint. Defendant's Preliminary Objections to the Amended Complaint
are now before this Court.
DISCUSSION
A. Standard of Review
The Defendant in this case has filed preliminary objections that claim Plaintiff has failed
to plead in conformance with law or rule, Pa.R.C.P. 1028(a)(2), and that Plaintiff s pleadings are
insufficiently specific, Pa.R.C.P. 1028(a)(3). Based on these preliminary objections, the
Defendant has asked the Court to dismiss the complaint. The Defendant bears the burden of
proof with regard to preliminary objections, and any doubt should be resolved against the
objecting party. Koken v. Steinberg, 825 A.2d 723 (Pa. Cmwlth. 2003). liven where a trial court
sustains preliminary objections on their merits, it is generally an abuse of discretion to dismiss
the complaint without leave to amend. Harley Davidson Motor Company. Inc. v. Hartman, 442
~ Pl.'s Compl., Sept. 14, 2009, ¶ 3.
z Pl.'s Compl., Sept. 14, 2009, ¶ 4.
s Pl.'s Compl., Sept. 14, 2009, ¶ 5; Pl.'s Am, Compl., Nov. 17, 2009.
3
A.2d 284 (Pa.Super. 1982). Atrial court's decision regarding preliminary objections will be
reversed only where there has been an error of law or abuse of discretion. Cooper v. Frankford
Health Care System, Inc., 960 A.2d 134 (Pa.Super. 2008).
B. Background
"A breach of contract claim in Pennsylvania requires three elements: (1) the existence of
a contract (2) a breach of a duty imposed by the contract and (3) resulting damages." J_F.
Walker Co., Inc. v. Excalibur Oil Group Inc., 792 A.2d 1269, 1272 (Pa. Super. 2002), citing
Williams v. Nationwide Mut. Ins. Co., 750 A.2d 881, 884 (Pa. Super. 2000). Turning to the
contents of Plaintiff's Amended Complaint, it is clear that it has pleaded sufficient facts to set
forth a facially valid breach of contract action. Starting with the existencc; of a contract, Plaintiff
asserts it is an assignee and successor in interest to the original creditor on a certain account
issued to Defendant. Plaintiff has also pleaded sufficient facts to set forth a breach of a
contractually imposed duty and resulting damages. Plaintiff alleges Defendant used the credit
card, resulting in an outstanding balance totaling $6,021.76 and that Defendant has not paid these
amounts owing under the account. Despite the sufficiency of the pleaded facts, Plaintiff's
Amended Complaint is found to be lacking several necessary requirements identified by
Defendant's preliminary objections.
C. Analysis of Defendant's Preliminary Objections
1. Failure to conform to rule of court (improper Verification)
Defendant's first preliminary objection goes to Plaintiff's failure to properly verify the
Amended Complaint. In accordance with Pa.R.C.P. No. 1024(c), "verification shall be made by
one or more of the parties filing the pleading unless all the parties (1) lack sufficient knowledge
or information, or (2) are outside the jurisdiction of the court and the verification of none of them
4
can be obtained within the time allowed for filing the pleading. In such cases, the verification
maybe made by any person having sufficient knowledge or information and belief and shall set
forth the source of the person's information as to matters not stated upon :his or her own
knowledge and the reason why the verification is not made by a party." Plaintiff's Amended
Complaint was not verified by a party filing the pleading. Instead it was verified by Plaintiff's
counsel. Plaintiff made no averment that either of the two exceptions, provided under Pa.R.C.P.
No. 1024(c), applied in this case.
Furthermore, no reason was provided in the Amended Complaint as to why the
Verification was not made by a party. At oral argument counsel indicated that there was perhaps
some connection between Arrow Financial Services, LLC and the law fine of Apothaker and
Associates, P.C. which identifies itself as a law firm engaging in debt collection. Be that as it
may, Plaintiff must explain why none of the parties filing the pleading have sufficient knowledge
or information and/or are otherwise outside of the jurisdiction of the Court and that none of them
can provide verification within the time allowed for by the pleading. The verification supplied
by Kimberly F. Scian, Esquire, is simply devoid of any of these required averments.
2. Failure to conform to rule of court (failure to attach written assignments of debt;
Plaintiff not real party in interest)
Defendant's second and third preliminary objections go to Plaintiff's failure to attach
necessary writings to the Amended Complaint. In accordance with Pa.R.(C.P. No. 1019(1),
"[w]hen any claim or defense is based upon a writing, the pleader shall attach a copy of the
writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it
is sufficient so to state, together with the reason, and to set forth the substance in writing." If any
claim or defense set forth within the pleadings is based upon a contract, then either a copy of the
5
contract must be attached or if unavailable then the substance of the contract must be set forth in
writing.
In Atlantic Credit and Finance, Inc. v. Giuliana, 829 A.2d 340 (Pa. Super. 2003), the
Court found that a complaint in debt collection action filed against credit card debtors by
creditor's alleged assignee did not satisfy the requirement set forth in Pa.R.C.P. No. 1019(1),
where the alleged assignee did not attach to the complaint: (1) a cardholder agreement; (2) a
statement of account; and (3) evidence of assignment from credit card issuer to alleged assignee.
Likewise in the case sub judice: (1) Plaintiff failed to identify the terms of the parties'
agreement within the Amended Complaint, or attach a copy of the document upon which its
claim is based to the Amended Complaint; (2) Plaintiff failed to provide a detailed statement of
any cash advances, items purchased, dates of purchase and prices paid in 'the Amended
Complaint; and (3) Plaintiff failed to attach a writing to the Amended Corplaint that evidences
the assignment of predecessor's account to the Plaintiff. Even if the writing or a copy is not
accessible to Plaintiff, it failed to provide any reason for the writings absence and also failed to
set forth the substance of the contract in writing.
The document attached to Plaintiff's brief titled "Appendix B, Bill of Sale" is purported
to evidence the sale and assignment of Defendant's account from the original creditor to
Plaintiff. This Appendix B, Bill of Sale, is not attached to the complaint. Briefs are not part of
the record, and thus this appendix cannot be considered by this Court. Secondly, even if it could
be considered, this document reflects a transfer of some unspecified accounts. The individual
accounts that were transferred by the original creditor to Plaintiff are not specified in this
document. Nowhere does it reflect that Defendant's account was among tike accounts that were
transferred to Plaintiff by the original creditor. "An assignee may sue as tl~e real party in
6
interest, but it must first `trace in [its] pleading the derivation of [its] cause of action from [its]
assignor. "' Remit Corp. v. Miller, 5 Pa. D. & C. 5th 43, 47 (Pa. Com. Pl. 2008) (quoting Brown
v. Esposito, 42 A.2d 93, 94 (1945)). Pa.R.C.P. No. 1019 (h) states that "[w]hen any claim or
defense is based upon an agreement, the pleading shall state specifically if the agreement is oral
or written." Plaintiff must indicate whether this alleged agreement with the original creditor was
oral or written. If it was a written agreement, Plaintiff must attach to the ,Amended Complaint a
writing evidencing the assignment of Defendant's account to Plaintiff by the original creditor.
Therefore, Plaintiff has failed to attach the necessary writing to the Amended Complaint
evidencing the assignment of debt.
3. Fourth Preliminary Objection, Pa.R.C.P. No. 1028(a)(2)(3) -Failure to conform
to rule of court, and insufficient specificity
Next is the question of whether the Court should grant Defendant's Motion for More
Specific Pleading. Pa.R.C.P. No. 1019(f) states that "[a]verments of time., place and items of
special damage shall be specifically stated. Generally, when evaluating a motion for more
specific pleading under Rule 1028(a) (3), the issue is "whether the complaint is sufficiently clear
to enable the Defendant to prepare his defense, or whether the Plaintiffls c;omplaint informs the
Defendant with accuracy and completeness of the specific basis on which recovery is sought so
that he may know without question upon what grounds to make his defense." Rambo v. Green,
906 A.2d 1232, 1236 (Pa.Super. 2003). In debt collection actions filed by credit card companies
against their customers, the plaintiff must include with the complaint a copy of the credit card
agreement and a statement of account. Atlantic Credit and Finance. Inc. v. Giuliana, 829 A.2d
340, 344-45 (Pa.Super. 2003). In Capital One Bank (USA) N.A. v. Clevenstine, 7 Pa. D & C
5th 153 (Centre County 2009), the Court held that the Plaintiff satisfied Rule 1019 (i) by
7
including with the complaint "several Capital One monthly billing staterrients bearing the
Defendant's name, dating from the opening of the account to the present and reflecting
individual charges and fees" sufficient to illustrate how the Plaintiff amved at the amount it
sought from the Defendant. In Plaintiff's complaint, the only statement of amounts related to the
account is exhibit "A" which appears to be 2 copies of the same monthly,statement from May 15,
2008. This one statement does not reflect any individual charges. It does show that as of the
statements closing date of April 18, 2008, $133.33 of finance charges had. been assessed as a
result of an annual percentage interest rate of 28.99 percent.
While we decline to hold that the Plaintiff in this case must attach each and every
monthly billing statement related to this account, the fact remains that Plaintiff obviously has
access to the account statements of Washington Mutual Card Services (the original creditor) and
should attach statements reflecting the opening of the account and statements which show the
individual charges and fees. We are satisfied that in this case, plaintiff's amended complaint
falls short of the requisite specificity required by Rule 1019.
4. Fifth Preliminary Objection, Pa.R.C.P. No. 1028(a) (2) -Failure to conform to
rule of court (failure to state whether agreement is oral or written, state its terms, and/or
attach a written contract upon which the claim is based)
Plaintiff alleges that Defendant had a credit card account with the original creditor,
Washington Mutual Card Services. A credit card account is an agreement between the issuer and
the cardholder. Pa.R.C.P. No. 1019 (h) states that "[w]hen any claim or df;fense is based upon an
agreement, the pleading shall state specifically if the agreement is oral or written." Plaintiff must
indicate whether this alleged agreement between Defendant and the original creditor was oral or
written. If it was a written agreement, Plaintiff must attach to the Amended Complaint the
8
cardholder agreement between Defendant and the original creditor. The Amended Complaint
simply does not address the requirements of Rule 1019 (h) or (i).
CONCLUSION
There is no question that this Court is a valid forum in which a business who is owed
money pursuant to an agreement with another may seek redress. Clearly, debtors who have
incurred legitimate debt are required to pay their obligations. This having been said, this Court
has noted over the past two years given the economic turmoil present in this country, that the
practice of assigning bad debts to businesses dedicated to debt collection have proliferated.
Again, such businesses are entitled to collect the assigned debts legitimately owed them.
However, such businesses must also follow the Rules of Civil Procedure for filing
complaints to recover such debt. It has become clear to this Court that all too often these
corporate collection plaintiffs tend to file shoddy, incomplete pleadings without making the
necessary inquiries regarding the details of these debt transactions. It appears that this is done in
order to obtain quick default judgments against unrepresented debtors at minimal expense. This
case represents an example of such sub par pleading which unnecessarily increases the work of
the Court. For example, Plaintiff's brief clearly indicates that Arrow is in possession of
additional information which should have been pled in the complaint. In its brief, Arrow states
(1) that the account was open on August 21, 2000, (2) that the Defendant made its last payment
of $100.00 on July 17, 2008, and (3) that the outstanding balance that was charged off on April
20, 2008, was $5,566.95. There is no question that electronic data concerning this account does
exist and which could be properly produced and pled in the complaint. At one point in its brief,
on page 3 in paragraph 2, Plaintiff states "Defendant, when entering into a contract with Capital
One Bank agreed to make interest payments on unpaid balances on this account..." This credit
9
card was supposedly issued by Washington Mutual Card Services not Capital One Bank.
Furthermore, the Amended Complaint provides at Exhibit "A" one Washington Mutual Card
Services credit card statement from May 15, 2008, which it attached twice. Such inattention is
indicative of the shoddy legal work being presented to this Court.
If a legitimate outstanding debt is owed, this Court is obligated to see that justice is done
and debt is paid. However, the Rules of Civil Procedure are perfectly clear. Credit card debt
collection is not some type of cut rate fast track legal process. The Plaintiff must pay attention to
detail and submit a properly pleaded and complete complaint.
Here, the "failure to produce a cardholder agreement and statement of account, as well as
evidence of the assignment, establishes a meritorious defense" requiring preliminary objections
be sustained. Atlantic Credit and Finance, Inc. v. Giuliano, 829 A.2d 34CI, 345 (Pa. Super.
2003). Failure to attach these writings to the Amended Complaint is fatal. Plaintiff must provide
a proper verification and plead with more specificity. Defendant's Preliminary Objections are
sustained. This Court will grant Plaintiff leave to file a legally sufficient Amended Complaint
within 30 days of the date of this Order.
Accordingly the following order is entered:
ORDER OF COURT
AND NOW, this 13`h day of May, 2010, upon consideration of the Defendant's
Preliminary Objections to Plaintiff's Amended Complaint, and the briefs filed by the parties and
after argument,
10
' IT IS HEREBY ORDERED AND DIRECTED that Defendant's Preliminary
Objections to Plaintiffs Amended Complaint are SUSTAINED. This Court grants Plaintiff
leave to file a legally sufficient amended Complaint within 30 days of the date of this Order.
By the Court,
M. L. Ebert, Jr., J.
Kimberly F. Scian, Esq.
Attorney for Plaintiff
Joseph K. Goldberg, Esq.
Attorney for Defendant
11
Joseph K. Goldberg, Esquire
2080 Linglestown Road, Suite 106
Harrisburg, PA 17110
(717)703-3600
joldberg@ssbc-law.com
PA ID #46782
IL%~
,` J~ ~i ,\.,, l ,.: c. ~L
IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA
ARROW FINANCIAL SERVICES LLC,
Plaintiff
v.
JODI A. WITMER,
CIVIL TERM (LAW)
NO. 09-6197
JURY TRIAL DEMANDED
Defendant
PRELIMINARY OBJECTIONS TO SECOND AMENDED COMPLAINT
AND NOW COMES the Defendant, Jodi A. Witmer, who files her Preliminary
Objections to the Plaintiff's Second Amended Complaint,' as follows:
1. Plaintiff filed suit against Defendant alleging that Defendant owes money
to Plaintiff arising out of an account issued by a predecessor of the Plaintiff. Sec. Am.
Comp. ¶'¶ 1, 7, 12.
2. The Defendant was served with the Complaint on September 15, 2009.
3. After Defendant filed Preliminary Objections to the Complaint and listed
the matter for Argument, Plaintiff filed an Amended Complaint by mail on or about
November 6, 2009.
4. The Amended Complaint was not served on Defendant's attorney until
Plaintiff's counsel mailed it on November 24, 2009.
5. Defendant filed Preliminary Objections to the Amended Complaint.
'Although the current pleading is titled "Amended Complaint," it is actually the
Second Amended Complaint.
Following briefing and oral argument, the Court sustained all the Preliminary Objections
by Opinion and Order May 13, 2010.
6. Plaintiff filed the pending Second Amended Complaint by ordinary mail.
The cover letter to the Prothonotary and Certificate of Service are both dated May 27,
2010, but the envelope mailed to Defendant's counsel is postmarked June 1, 2010.
7. Plaintiff's Second Amended Complaint does not correct the deficiencies
for which the Court sustained three of the five previous Preliminary Objections.
First Preliminary Objection - Pa. R.C.P. No. 1028(a)(2) -Failure to conform to rule
of court (failure to attach written assignments of debt)
8. The Plaintiff is not the original creditor, but rather an assignee of at least
one predecessor. Sec. Am. Comp. ¶ 12. Since the Plaintiff's right to maintain an action
as an assignor is predicated upon a written assignment, that writing must be attached to
the Amended Complaint, pursuant to Pa. R.C.P. No. 1019(1).
9. Plaintiff has attached to the pleading a document titled "Appendix B, Bill of
Sale." By its terms, the Bill of Sale is not the document by which the account was
purportedly sold. The Bill of Sale references a "Forward Flow Purchase and Sale
Agreement," which is said to contain the terms of the transfer of some accounts from
Washington Mutual Bank to the Plaintiff. Not only are the terms and conditions of the
agreement not stated or described, but the Bill of Sale in no way references the account
supposedly opened by the Defendant and for which she is being sued.
10. By failing to attach a copy of the assignment of the debt to the Plaintiff,
the Second Amended Complaint does not comply with an express rule of court, in
violation of Pa. R.C.P. No. 1028(a)(2).
2
Second Preliminary Objection - Pa. R.C.P. No. 1028(a)(2), (3) -Failure to conform
to rule of court, as Plaintiff is not the real party in interest
11. Pa. R.C.P. 2002(a) requires that an action be brought by the real party in
interest.
12. By failing to attach a copy of the necessary writing by which the Plaintiff
would become the assignee of the account -and thus the real party in interest -the
Plaintiff has failed to conform with the requirements of the aforesaid rule.
13. Since this matter was not brought by the real party in interest, it must be
dismissed.
Third Preliminary Objection - Pa. R.C.P. No. 1028(a)(2) -Failure to
conform to rule of court (failure to state the terms of the written agreement and/or
attach written contract upon which the claim is based)
14. The Second Amended Complaint alleges the existence of a written credit
card account between the Defendant and the Plaintiff s predecessor, referred to as the
"account." Credit card accounts must be evidenced by certain written documents,
including an agreement.
15. Pursuant to Pa. R.C.P. No. 1019(1), if the agreement is written, it must be
attached to the pleading or, if not, the pleader must explain its absence and set forth
the substance of the agreement.
16. The Plaintiff has failed to describe the terms of the agreement, and it has
not attached a copy of a written agreement or explained its absence.
3
WHEREFORE, the Defendant demands that her Preliminary Objections be
sustained, and, in light of the Plaintiff's filing a third pleading with the same defects, the
Second Amended Complaint be dismissed with prejudice.
Re,~peettu I I y~,u b m fitted ,
~ep~i R. Goldb g, Esquire
Attorney ID . 46 2
2080 Lingl to Road, Suite 106
Harrisburg, PA 17110
(717)703-3600
Attorney for Defendant
4
CERTIFICATE OF SERVICE
/`~~ ~_
I, the undersigned, hereby certify that on the ! day of ~~~~ , 2010,
served a copy of the foregoing Defendant's Preliminary Objections to Second Amended
Complaint, by first-class mail, postage prepaid, upon the following:
Benjamin J. Cavallaro, Esquire
Apothaker & Associates, P.C.
520 Fellowship Road, C306
Mount Laurel, NJ 08054
Attorney for Plaintiff
PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and submitted in triplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next
Argument Court.) 4~
-----------------------------------------------------------------------------------------------------------------~ -s-<
CAPTION OF CASE ''~ ~::>
(entire caption must be stated in full) G c+ _j.~
Arrow Financial Services,LLC "~ ~ ~ ~ -n
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- -~r1.
1 _
Jodi A. Witmer ~ y~' `~ ~ ~"~'~
~ ;-r`,,
No. 09-6197 Civil '~ ~" ~ ~.- ~''
1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to
complaint, etc.):
Defendant's Preliminary Obiections to Second Amended Complaint
2. Identify all counsel who will argue cases:
(a) for plaintiffs:
Benjamin J. Cavallaro, 520 Fellowship Road, C302, Mt. Laurel, NJ 08054
(Name and Address)
(b) for defendants:
Joseph K. Goldberg, 2080 Linglestown Road, Harrisburg, PA 17110
(Name and Address)
3. I will notify all parties in writing within two days that this case has been listed for
argument.
4. Argument Court Date: August 18, 2010
u
Joseph K. Goldberg
Print your name
Defendant
July 2, 2010 Attorney for
Date:
INSTRUCTIONS:
1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR
(not the Prothonotary) before argument.
2. The moving party shall file and serve their brief 12 days prior to argument.
3. The responding party shall file their brief 5 days prior to argument.
4. If argument is continued new briefs must be filed with the COURT
ADMINISTRATOR (not the Prothonotary) after the case is relisted.
ARROW FINANCIAL IN THE COURT OF COMMON PLEAS OF
SERVICES, LLC, :CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFF
V.
JODI A. WITMER,
DEFENDANT 09-6197 CIVIL TERM
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS
BEFORE HESS. P.J. , OLER. J. AND MASLAND, J.
ORDER OF COURT
AND NOW, this ~ day of October, 2010, Defendant's preliminary
objections ARE SUSTAINED. We grant Plaintiff 30 days from the date of this
order and opinion to amend its second amended complaint. Plaintiff will receive
no further opportunities to plead a legally sufficient complaint.
By the Court,
~njamin J. Cavallaro, Esquire
For Plaintiff
~seph Goldberg, Esquire
For Defendant ~
saa
Albert . Masland, J.
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ARROW FINANCIAL IN THE COURT OF COMMON PLEAS OF
SERVICES, LLC, :CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFF
V.
JODI A. WITMER,
DEFENDANT 09-6197 CIVIL TERM
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS
BEFORE HESS. P.J. , OLER, J. AND MASLAND, J.
OPINION AND ORDER OF COURT
Masland, J., October 5, 2010:--
Before the court are the preliminary objections of Jodi A. Witmer,
Defendant, to the second amended complaint filed by Plaintiff, Arrow Financial
Services LLC. For the reasons stated below, Defendant's preliminary objections
are sustained.
Previously, our esteemed colleague, the Honorable M.L. Ebert, Jr., issued
an opinion and order sustaining Defendant's preliminary objections to Plaintiffs
first amended complaint in this matter. In response, Plaintiff filed the second
amended complaint and Defendant filed preliminary objections thereto. Now,
following briefing and argument we again sustain Defendant's preliminary
objections and dismiss the second amended complaint. In doing so, we grant
Plaintiff 30 days leave to file a third amended complaint. However, in light of the
repeated deficiencies of Plaintiffs pleadings up to this point, we will not grant
Plaintiff leave to file subsequent amended complaints.
This is a collections matter arising from an allegedly delinquent credit card
09-6197 CIVIL TERM
account. Defendant objects to the adequacy of Plaintiffs second amended
complaint on two grounds, first Plaintiff has not included written evidence of the
assignment of Defendant's debt from the original creditor to Plaintiff, and second,
the second amended complaint fails to identify the terms of the parties'
agreement, or attach a copy of the document upon which its claim is based.
I. Evidence of Assignment
Where, as here, a plaintiff is not the defendant's original creditor, the
complaint must include a writing evidencing the assignment of the defendant's
account from the original creditor to the plaintiff. Atlantic Credit and Finance, lnc.
v. Giuliana, 829 A.2d 340 (Pa. Super. 2003). Here, Plaintiffs second amended
complaint includes a document labeled "Bill of Sale" indicating the sale of various
accounts from Washington Mutual Bank to Plaintiff. This writing is wholly
inadequate to establish Plaintiff is a real party in interest in this matter.
First, we note this document is identical to the document already ruled
insufficient by Judge Ebert in his opinion and order granting the preliminary
objections to Plaintiffs amended complaint. He reasoned:
[T]his document reflects a transfer of some unspecified
accounts. The individual accounts that were
transferred by the original creditor to Plaintiff are not
specified in this document. Nowhere does it reflect that
Defendant's account was among the accounts that
were transferred to Plaintiff by the original creditor.
Arrow Financial Services LLC v. Witmer, No. 09-6197, slip op. at 6 (Cumb. Co.
May 13, 2010). Plaintiff has failed to include any supplementary documentation
in its second amended complaint. Accordingly, Plaintiff has again failed to
provide an adequate writing to demonstrate the chain of assignment whereby it
-2-
' ' 09-6197 CIVIL TERM
became the owner of Defendant's alleged debt. Defendant's preliminary
objection will be granted in this respect.
II. Absence of Cardholder Agreement
Next, we address Defendant's objection to the absence of the terms of her
original cardholder agreement. She argues the alleged debt is based upon a
written cardholder agreement, and accordingly, Plaintiff must attach a copy of the
document to the complaint. We agree.
We note with disapproval that this issue, like that raised by Defendant's
previous preliminary objection, was already addressed by Judge Ebert in his
opinion resolving the last round of preliminary objections. There he clearly stated
that "Plaintiff must attach to the Amended Complaint the cardholder agreement
between Defendant and the original creditor." Arrow Financial Services LLC v.
Witmer, slip op. at 8-9. Plaintiff concedes it has failed to do so. Nonetheless,
Plaintiff asks us to overlook the absence of this essential document because it is
not accessible at this time.
It is well-settled that when a claim is based on a written agreement, that
writing must be attached to the pleadings. Pa. R.C.P. No. 1019. However, if the
writing is not accessible to the pleader, it is sufficient so to state, together with
the reason, and to set forth the substance in writing. Pa. R.C.P. No. 1019(1).
Here, Plaintiff avers, "[aj copy of the credit application and agreement are not
accessible to Plaintiff at this time." Am. Compl. at ¶4. No further detail is
provided to establish the reason the document is currently unavailable. Plaintiff's
bare assertion that the document is unavailable, absent further explanation, is
-3-
' ' 09-6197 CIVIL TERM
insufficient to satisfy Rule 1019's requirements.
For similar reasons, Plaintiffs summary of the substance of the cardholder
agreement is also inadequate. Plaintiff described the underlying cardholder
agreement in only vague and general terms: "Defendant was given the right to
make purchases in return for a promise to timely pay the principal balance
accumulated plus interest, fees and penalties where applicable." Am. Compl. at
¶6. This statement fails to set forth the material terms of the cardholder
agreement in any detail and therefore fails to set forth the substance of that
agreement as contemplated by Rule 1019.
Plaintiff has failed to comply with Judge Ebert's demand that it attach a
copy of the cardholder agreement to its second amended complaint. fn lieu of
including the agreement, Plaintiff has failed to offer a satisfactory explanation for
its absence and has failed to set forth the substance of the agreement in
sufficient detail. Accordingly, Defendant's preliminary objections are sustained in
this respect.
III. Conclusion
Defendant's preliminary objections are sustained. We grant Plaintiff 30
days leave to amend its second amended complaint. However, in tight of
Plaintiffs repeated failures to file a legally sufficient complaint, this will be
Plaintiffs final opportunity to do so.
ORDER OF COURT
AND NOW, this ~ day of October, 2010, Defendant's preliminary
objections ARE SUSTAINED. We grant Plaintiff 30 days from the date of this
-4-
' ~ 09-6197 CIVIL TERM
order and opinion to amend its second amended complaint. Plaintiff will receive
no further opportunities to plead a legally sufficient complaint.
By the Court,
Albert H. Masland, J.
Benjamin J. Cavallaro, Esquire
For Plaintiff
Joseph Goldberg, Esquire
For Defendant
:saa
-5-
f
Our File No.: 220567
APOTHAKER & ASSOCIATES, P.C
BY: David J. Apothaker, Esquire
Attorney I.D.# 38423
520 Fellowship Road C306
Mount Laurel, NJ 08054
(800) 672-0215
Attorney for Plaintiff
ARROW FINANCIAL SERVICES
LLC
Plaintiff,
VS.
JODI A WITMER
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
NO. 09-6197
Defendant.
PRAECIPE TO DISMISS WITHOUT PREJUDICE
TO THE PROTHONOTARY:
Kindly dismiss this action without prejudice.
APOTHAKER & ASIATES, P.C.
Attorneys tf 6r P , mtiff
A Law Firm Enga ed 2ebt Collection,.
By.
David J. Apothaker, Esquire
Joseph K. Goldberg, Esquire
2080 Linglestown Road, Suite 106
Harrisburg, PA 17110
(717) 703-3600
jgoldberg@ssbc-law.com
PA ID #46782
DF TNE%THO OTARY
2010 NOY 15 PM 2= 18
CUMBERLAND COUNTY
PENNSYLVANIA
IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA
ARROW FINANCIAL SERVICES LLC,
Plaintiff
V.
JODI A. WITMER,
Defendant
CIVIL TERM (LAW)
NO. 09-6197
JURY TRIAL DEMANDED
MOTION FOR DISMISSAL OF CASE WITH PREJUDICE
WITHOUT CONCURRENCE
AND NOW COMES Defendant, Jodi A. Witmer, by and through her attorney,
Joseph K. Goldberg, who moves the court to dismiss the above-captioned case, with
prejudice, as follows:
1. This Motion involves the October 6, 2010, Order of the Honorable Albert
H. Masland, Jr.
2. The aforesaid Order granted Defendant's Preliminary Objections to
Second Amended Complaint. The Order reads as follows:
AND NOW, this a day of October, 2010, Defendant's preliminary
objections ARE SUSTAINED. We grant Plaintiff 30 days from the date of this
order and opinion to amend its second amended complaint. Plaintiff will receive
no further opportunities to plead a legally sufficient complaint.
3. More than 30 days have elapsed from the date of the Order and Plaintiff
has failed to file an amended complaint.
4. Pursuant to Judge Masland's October 6, 2010, Order, this case should be
dismissed with prejudice.
5. Defendant sought the concurrence of Plaintiffs counsel by faxing a copy
of this Motion on November 9, 2010. Opposing counsel did not provide concurrence.
WHEREFORE, Defendant respectfully requests the court enter an Order
dismissing this case with prejudice.
Respectfully submitted,
Aft ney I D No. 467
2680 Linglestown ad, Suite 106
Harrisburg, PA 110
(717)703-360
Attorney for Defendant
2
CERTIFICATE OF SERVICE
? f
I, the undersigned, hereby certify that on the/1? day of , 2010,
served a copy of the foregoing Motion to Dismiss Case with Prejudice Without
Concurrence, by first-class mail, postage prepaid, upon the following:
Benjamin J. Cavallaro, Esquire
Apothaker & Associates, P.C.
520 Fellowship Road, C306
Mount Laurel, NJ 08054
Attorney for Plaintiff
. so
Joseph K. Goldberg, Esquire
2080 Linglestown Road, Suite 106
Harrisburg, PA 17110
(717) 703-3600
jgoldberg@ssbc-law.com
PA ID #46782
nF TH`M,
2010 NOY I f FK 3 Iq
^UMBERLk,"!D CO"'IY
PENNS`
Nuv q alu
IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA
ARROW FINANCIAL SERVICES LLC,
Plaintiff CIVIL TERM (LAW)
V. NO. 09-6197
JODI A. WITMER, JURY TRIAL DEMANDED
Defendant
ORDER
AND NOW, this day of 1y01Aek-'71,a- , 2010, upon
consideration of the Defendant's Motion for Dismissal with Prejudice, and because of
the failure of Plaintiff to file a legally sufficient complaint by the time prescribed by the
Court in its Order of October 6, 2010, it is Ordered, that Defendant's Motion be, and
hereby is, Granted, and this matter is hereby dismissed with prejudice
BY THE COURT,
J.
..Copies to: Joseph K. Goldberg, Esq., 2080 Linglestown Road, Harrisburg, PA 17110;
,,,Aenjamin J. Cavallaro, Esq., 520 Fellowship Road, C302, Mt. Laurel, NJ 08054
CIes Pv%:a% (QL
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