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HomeMy WebLinkAbout09-8927 COwR7 WWfALTN Of PENNSYLVANIA COURT OF COMMON PLEAS JUDICIAL DISTRICT 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 mentioned below NOTICE OF APPEAL DISTRICT JUSTICE JUDGMENT COMMON PLEAS N. C)q - 99,2 7 0- ibr1 Terns Love' 2044 Gac. A-aI DIIo .dS S ,,v*, 4 L lei-Se :r vs t nQmSa L-ovq Cv2o IQa3lq-o4 ` IT 20 4, 4im)A Q? 1-p This block will be signed ONLY when this notation is required under Pa. RJCPJ.P. Na !f appe1W mrs CLAIMANT (see Pa. R.C.P.J.P. No. 10088. This Notice of Appeal, when received by the District Justice, will operate as a 1001(6) in action before District Justice, he MUST SLMSEDEAS to the judgment for possession in this case. FILE A COMPLAINT within twenty (20) days after Sourtwe Of P,orr?onorary or Deputy I 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 fra n copy of notice of appeal to be served upon ague/tee). PRAECIPE: To Prothonotary Enter rule upon , appease(s), to file a Complaint in this appeal (Corrnon Pleas No, DQ- a9 a7 0,41 Term ) within twenty (20) days after service of rule or s entrz of judgment of ran pros. Sipne d went or ft rxrorrby or ays?k RULE: To ? ?-v+c?y"i ,?,? Su.r?l.,ry ?-O-Se.V ? e(s? Name Of ) (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 marl. (2) K you do not file a complaint within this time, a JUDGMENT OF NON PROS WILL BE ENTERED AGAINST YOU. (3) The dale of service of this rule if service was by mall is the, date of mailing, elf Male: 1 , 20 2. aW4 sgn lim of Aoricnaenr or 0#V1* AOPC312-N COURT FILE TO BE FILED WITH PROTHONOTARY PROOF OF SERVICE OF NOTICE OF APPEAL. AND RULE TO FILE CHIT (This proof of service MUST BE FLED W;TH N TEN (10) VAYS AFTER filing the notice of appeal. Check applicable boxes) C01A1NOKWEALTH OF PENNSYLVANIA COUNTY OF AFFIDAVIT: I hereby swear of affirm that I served ? a copy of the Notice of Appeai, Common Pleas No upon the District Justice designated therein or? (date of service) © by personas service 0 by ;certified) (registered) mail, sender's receipt attached hereto, and upon the appelie, (narrie) 4 , or, 20 ? by personal service. 0 by•( ) (registered) mail, sender's reoteipt stWK.Aed hereto ? and further that I served the Rule to File a Complaint accompanying the above Notice of Appeal upon the appetlee(s) to whom the Rule was addressed on ?. 2Q ? by personal service G by (certified) (registered) mail, sender's receipt attached hereto SWORN (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS DAY OF 20 „ Signehrs of 'official before whom affidavit was made Tide of official t van sim wq"s on 20 so"ture of a ant > a vd GIU Ib COMMONWEALTH OF PENNSYLVANIA C(H 1NTY nP, CUMBERLAND 09-1-03 mn,i Name rio, RICHARD S- DGUCHRpFTX A""'e's 9$ S ENOLA DR STE 1 ENOLA, PA Trlr.phnnie (717) 728'2805 17025 NOTICE OF JUDGMENT/TRANSCRIPT CIVIL CASE PLAINT[FF NAML And AUUHt3J 7ORMDVIEW SURGERY & LASER 205 GRANDVIEW AVl: CAMP HILL, PA 17011 L J Vs. DEFENDANT NA VF And A00HFSS rLOVEJOY, THERESA 206 CAPITOL HILT, RD APT/STE 6 DILL3131MG, PA 17019 RICHARD S. DOUGHERTX L J 98 S 'LNOLA DR STE 1 Docket No.: CV- 0004319.09 E IOLA, PA 17025 late Filed: 9/29/09 THIS IS TO NOTIFY YOU THAT: Judgment DEFAULT JIIDamm PLTF (Date of Judurnent) 12/41/09 .Judmient war, entered for (Name) GRANMEPQ' SURGERY & LASER Judgment was entered against: (Name LOVEJOY, THERESA in the amount of $ 2. 052 . 66-^ Defendants are jointly and sevorally liable. Damages will be assessed on Date & Time_._.._ This case dismissed willrlc?ut prejudice. Amount of..itidgnzent Subject to Attachment/42 Pat.C.S. § 8127 F] Portion of Judgment for physical damages arising) orrt of ra ;idential lease $ Amount of Judgment $ 1,915-26 Judgment Costs $ 3. - Interest on Judgment $?? Attorney Fees Total $ 2,052.66 Post Judgment Credits $ r08t 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 PROTHONOTARYICLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH YOUR NOTICE Of APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL Di$TRIG'r JUDGES- IF THE JUDGMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE, COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THI: COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE UNLESS THE JUDGMENT 18 ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THI: JUDGMENT MAY FILE A REQUEST FOR ENTRY 01= $ATI$FAOTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL, SETTLES, 09 OTHERWISE COMPLIES WITH THE JUDGMENT. OL? 01 2009 i7ate , r. I certify that this is a true d cot yect c th of DEC 3 1 200bate `7 _,!f My commission expires first Monday of January, 2012 AOPC Y15-O7 , Magisterial District Judge containing) the judgmant. , Magisterial District Judge SEAL DATE PRINTED: 12/01/09 2:56:00 PM T/T'd 2ZS90b2ZTZ:nl 80828211TL .,ia3Hgnoa faW:W0JJ 00:VT 6002-T2-D30 PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT ([his a cx,f. ;service MUST EE FILE F v'6 fr-f;rd EN ( ! ; L14 YS AFTER filing the notice of appeal Check app;icab , boxes) COMMON WEALTH OF PENNSYLVANIA COUNTY ss AFFIDAVIT: i hereby swear of affirm that ( served a copy of the Notice of Appeal Comr;en Pleas No _0`1;' (Z7 upon the District justice designated therein on by personal service 9,by (certified) (reg+sleFed) mail, sender's - ? (cla.e Uf seiVice) :?_ ?..•-. ? .-_?_ ___. r - receipt attached hereto. and 1:pon the appelie, friame,! R t attached hereto. r's recei d l p e ; sen d mai ,? 26 1¢?_ by persona; eerycezby (cert,, i % t } Notice of Apoeal upon; the appellee(s) to whom b land further that l served the Rule to Fie a Complaint ove ac,-ompanying the a 20 10 ? by personal service by (certified) (.reg4Wed) the Rule was addressed on mail, sender's receipt attached heretc SWORN (AFFIRMED) AND SUBSCRIBED BEFORE. h4i-_ .-, THIS DAl' OF 'n ---- c?pC Sianatureofaffiant 'Signature of official befo a w!:iorn aff'da ?5 •' 'e COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL public nnettS. Rider, otary a 3 Title of official g Borough, York C13unty Lllsbur commission expires rebruary 12, 2013 on .My Commission expires I' ? i vJ 3' Co C) CD .5 'Co) c? p it bj E - - O CJ `- Z O N Q C Q LU a; C, Z> O CO Ca cA coo Uc > am c LU m? iOcg'c E fnUrmniu' C _- 2 m c: c plD O W3 m cr C. ?C 'a -"D of 50 E? m rrt -m mm CLU Z co OZ oL -am N Rat co 4 ¦ U U w x ... Y ? y CO j Z9? ?t 4t v ?, N m?v ?NUa. o U? ? 12 .o -10 cc CL, YO« VlCc CL yQ Emc ° Q Cc oai a`0 -m ? m h 41 4, U CD C d?a N •c: o C._ `T1 A C`. . . m V1 t r ? K IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA GRANDVIEW SURGERY & LASER CENTER, Plaintiff v. THERESA LOVEJOY, Defendant CIVIL ACTION -LAW N0.09-8927 CIVIL TERM ENRY OF APPEARANCE TO THE PROTHONOTARY: cn ;-- : n'~; `M ~.-- _ .. ~ ~.~.. r .~ Enter my appearance as Attorney of record for Defendant Theresa Lovejoy. Respectfully submitted, Stephen K. Portko, Esquire #34538 101 South U.S. Route 15 Dillsburg, PA 17019 (717)432-9706 Attorney for Defendant 0 ~'! N .~'- _, l ..,.._~~ ~ 7 f=== `~lfi rl ' ~(~~ 1 CERTIFICATE OF SERVICE HEREBY CERTIFY that a true and correct copy of the foregoing Entry of Appearance was furnished by U.S. Mail, first class, postage prepaid on this 17th day of November 2008, to: Leonard Tintner, Esquire Boswell, Tintner & Piccola 315 North Front Street Harrisburg, PA 17108-0741 Attorney for Plaintiff BRATIC & PORTKO _~ Dated: ~ t ,2c~ c ~ ~~ Stephen Portko, Esquire 101 U.S. Route 15 South Dillsburg, PA 17019 (717) 432-9706 Attorney for Defendant 2 F1LF~}-~,~~,-rf~ ~~tV !Jr i1 bi 1 4 .. .. _. ~ ZQI~ Ftg 19 F~~ 2~ ~a9 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANI~kL~~ : _- •-- ~~`~ 4 GRANDVIEW SURGERY & LASER CENTER, Plaintiff v. THERESA LOVEJOY, Defendant CIVIL ACTION -LAW N0.09-8927 CIVIL TERM DEFENDANTS' PRELIMINARY OBJECTIONS AND NOW, comes Defendant, Theresa Lovejoy, by her attorney, who files the within preliminarily objections to Plaintiffs Complaint, as follows: PRELIMINARY OBJECTION RAISING PLAINTIFF'S LACK OF CAPACITY TO SUE FOR FAILURE TO REGISTER FICTITIOUS NAME 1. Plaintiffs name, Grandview Surgery & Laser Center, is a fictitious name within the meaning of Section 302 of the Pennsylvania Fictitious Names Act ("Act"), 54 Pa. Cons. Stat. Ann. § 302. 2. Plaintiffs fictitious name is not now registered with the Commonwealth, and was not registered prior to the institution of the action as required under the Act, 54 Pa. Cons. Stat. Ann. § 331(a). 3. Under the Act, no action can be maintained by a party using a nonregistered fictitious name until registration and any other necessary compliance with the Act has occurred. 54 Pa. Cons. Stat. Ann. § 331. 4. Plaintiff is, accordingly, without capacity to sue or maintain this action and is barred from maintaining this action against defendant under the Act. 5. The contract upon which plaintiff here sues was entered into by the plaintiff using a nonregistered fictitious name. 1 6. Under the Act, 54 Pa. Cons. Stat. Ann. § 331(b), a plaintiff must pay a $500 civil penalty to the Commonwealth before he is allowed to institute suit on a transaction where a nonregistered fictitious name was used. 7. Plaintiff has not paid a $500 penalty to the Commonwealth in connection with the transaction upon which this action is based. 8. Plaintiff is, accordingly, for this reason also barred from instituting and maintaining this action in this Court. WHEREFORE, defendant respectfully requests that plaintiffs complaint be dismissed or, in the alternative, stayed, pending plaintiffs compliance with the Pennsylvania Fictitious Names Act. PRELIMINARY OBJECTION RAISING FAILURE TO CONFORM TO APPLICABLE RULES OR LAW 9. Defendant incorporates by reference herein paragraphs 1 through 8 above as if set forth at length hereto. 10. Pa. R.C.P. 1019(1) of the Pennsylvania Rules of Civil Procedure requires that where a claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof. 11.The writing attached to Plaintiffs Complaint as Exhibit "A" does not identify Plaintiff by actual name and address as the real party in interest, nor does the writing confirm what services were rendered, how much the services were worth and whether the charges were customary and reasonable. 12. In addition, the Complaint does not specifically describe the nature of default in violation of Pennsylvania Rule of Civil Procedure 1019(a) which requires that "the material facts on which a cause of action or defense is based shall be stated in a concise and summary form". 13. Plaintiffs Complaint is vague and contains inconsistencies that make it impossible for Defendant to respond or enter a defense. For instance, Plaintiff claims that it is owed a balance of $1,915.26, but arrives at such figure by 2 claiming that it submitted a bill for $6,708.00 and received payment in the amount of $2,849.99 from Defendant's insurer, a calculation that does not add up. 14. Further, Plaintiff alleges in paragraph 10 that the terms of Plaintiff's Financial Agreement, Exhibit A, allow collection fees totaling 30% of the unpaid balance; however, such term is missing because Exhibit A contains no language at all that specifies a "30% collection fee". 15. In addition to failing to name or identify the proper parties to the alleged contract, the Complaint contains other deficiencies that violate Pennsylvania Rule of Civil Procedure 1019(f), which states: "averments of time, place and items of special damages shall be specifically stated." 16. More particularly, the Complaint fails to explain the terms that Defendant breached or the payments Defendant allegedly failed to make by omitting (1) the specific contract entered into and services performed; (2) Plaintiff's customary and reasonable charges for such services; and (3) the charges for the services and cost of medical supplies sent to Defendant's insurance company. 17. The Complaint does not specifically describe the nature of default in violation of Pennsylvania Rule of Civil Procedure 1019(a) which requires that "the material facts on which a cause of action or defense is based shall be stated in a concise and summary form". 18. As a result of Plaintiff's vagueness in stating the grounds of its pleading, Defendant's ability to respond will be unduly impaired. WHEREFORE, Defendant respectfully requests that Plaintiffs Complaint against her be dismissed for lack of conformity to the Pennsylvania Rules of Civil Procedure. PRELIMINARY OBJECTION RAISING INSUFFICIENT SPECIFICITY OF A PLEADING 19. Defendant incorporates by reference herein paragraphs 1 through 18 above as if set forth at length hereto. 20. Paragraph 8 of Plaintiffs Complaint generally avers that Plaintiff submitted to Defendant's insurance company a bill for services rendered to Defendant. 3 21. Paragraph 13 of Plaintiffs Complaint generally avers that Defendant failed to make payment to Plaintiff for the balance due not paid by insurance. 22.The Complaint fails to attach a copy of the bill submitted to the insurance company and it fails to include any allegation that describe the "USUAL AND CUSTOMARY CHARGE OF THE FACILITY" or explain what was denied by Defendant's insurance company. 23. The Complaint fails to indicate whether the transaction between the plaintiff and the defendant was a negotiated transaction and whether the bill submitted to Defendant's insurance company includes only reasonable and necessary services to defendant or requires payment for unnecessary services that will be an issue in this case. 24. Defendant cannot be expected to know whether the bill submitted to her insurance company included only those reasonable and necessary services that are based on Defendant's medical condition and actual treatment. 25.The Complaint does not comply with Pa. R.C.P. 1019(a), which requires that "the material facts on which a cause of action or defense is based shall be stated in a concise and summary form". 26. This Court should require Plaintiff to specify with particularity the contract and amounts that apply to Defendant. WHEREFORE, Defendant respectfully requests this Court to require that Plaintiff plead more specifically the averments of its complaint relating to damages, the specific services and treatment and the nature of the default. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER 27. Plaintiffs Complaint contains two counts, one for breach of contracf and one for unjust enrichment. 28. Plaintiffs Complaint alleges that the relationship between the parties is founded on a written agreement [Plaintiffs Financial Agreement, Assignment of Benefits and Release of Records] or express contract. 29. The doctrine of unjust enrichment is inapplicable when a relationship 4 t , exists between the parties founded on a written agreement or express contract. Roman Mosaic & Tile Co., Inc. v. Vollrath, 266 Pa.Super. 215, 313 A.2d 305 (1973). 30. Even though Plaintiff pleads this count in the alternative, Plaintiff fails to specifically allege that the benefit allegedly received was unjust, and the reasons supporting the claim. EFCO Importers v. Halsobrunn, 500 F.Supp. (E.D.Pa. 1980); Visor Builders, Inc, vs. Devon E. Trantor, Inc. 470 F.Supp. 911 (M.D.Pa. 1978). 31. Plaintiff's Complaint contains no allegations to indicate that the charges made were the usual and customary charges of Plaintiff based on reasonable and necessary services to defendant. On the contrary, Plaintiff seeks to be unjustly enriched by requiring payment for the unnecessary services that will be at issue in this case. 32. Where Plaintiff fails to state the manner in which the Defendant has obtained the unjust benefit, but merely states its own loss in the value of the goods and/or services [see ¶16 of Plaintiffs Complaint], the complaint does not properly plead that defendant has been benefited. Belmont Industries, Inc. v. Bechtel Corp., 425 F.Supp. 524 (E.D.Pa. 1976). WHEREFORE, it is respectfully requested that this Honorable Court strike the second Count of Plaintiffs Complaint for failure to state a cause of action upon which relief may be granted. Respectfully submitted, Step en K. Portko, Esquire #3 38 101 South U.S. Route 15 Dillsburg, PA 17019 (717)432-9706 Attorney for Defendant 5 CERTIFICATE OF SERVICE HEREBY CERTIFY that a true and correct copy of the foregoing Preliminary Objections was furnished by U.S. Mail, first class, postage prepaid on this 19th day of February, 2010, to: Leonard Tintner, Esquire Boswell, Tintner & Piccola 315 North Front Street Harrisburg, PA 17108-0741 Attorney for Plaintiff BRATIC & PORTKO Dated: ~ 1 °~ 2-at v Stephen K. Portko, Esquire `~`~ 101 U.S. Route 15 South Dillsburg, PA 17019 (717) 432-9706 Attorney for Defendant 6 �F CO41 1�avid 1n. �ueCC e Renee X Simpson Prothonota 1s` De p ut y crothonota '� o _ z V � � �!•l ° Irene E. Jvlorrow �irkS. Sohonage, ESQ Solicitor 7750 2nc Deputy Prothonotary Office of the Prothonotary CumberfanciCounty, Pennsylvania O9-a927 CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 29TH DAY OF OCTOBER, 2013,AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE—THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R.C.P.230.2. BY THE COURT, DAVID D. BUELL PROTHONOTARY One Courthouse Square • Suite 100 • Carlisle, PA 17013 • (717)240-6195 • 'Fax(717)240-6573