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HomeMy WebLinkAbout10-2147CIF THE F' r v? . ti A?CTAR 1 2919 MAR 29 Am Ir: Z j PE^?? LV;? V A iVll IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION CAPITAL ONE BANK (USA), NA Plaintiff No. 10 - 611411 a-lvil I at m vs. COMPLAINT IN CIVIL ACTION ROBERT J. PHILBIN HERSHEY, PHILBIN & ASSOCIATES, INC. Defendants FILED ON BEHALF OF Plaintiff COUNSEL OF RECORD OF THIS PARTY: James C. Warmbrodt, Esquire PA I.D. #42524 WELTMAN, WEINBERG & REIS CO., L.P.A. 1400 Koppers Building 436 Seventh Avenue Pittsburgh, PA 15219 (412) 434-7955 WWR#7958090 0 +9a•oo Po AMY cr-y 4µa(Og(pa 0*d 3q 58S IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION CAPITAL ONE BANK (USA), NA Plaintiff VS. Civil Action No. ROBERT J. PHILBIN HERSHEY, PHILBIN & ASSOCIATES, INC. Defendants COMPLAINT IN CIVIL ACTION AND NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by an 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 Lawyer Referral Service Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 . A COMPLAINT 1. Plaintiff is a corporation with offices at 15000 Capital One Drive, Richmond, VA 23238. 2. Defendant, Hershey, Philbin and Associates, Inc., is a Pennsylvania Corporation with a last known address of 2101 Orchard Road, Suite 3, Camp Hill, Pa 17011. 3. Defendant is an adult individual residing at 4905 Colonial Drive, Mechanicsburg, PA 17055. 4. Defendants applied for and received a credit card issued by Capital One bearing the account number xxxxxxxxxxxx2776. 4. Defendants made use of said credit card and has currently a balance due and owing to Plaintiff, as of March 3, 2010, in the amount of $6,763.90. A true and correct copy of Plaintiff's Statement of Account is attached hereto, marked as Exhibit "1" and made a part hereof. 5. Defendants are in default of the terms of the cardholder Agreement having not made monthly payments to Plaintiff thereby rendering the entire balance immediately due and payable. 6. Plaintiff is entitled to the addition of interest at the rate of 23.100% per annum on the unpaid balance. 7. Although repeatedly requested to do so by Plaintiff, Defendants have willfully failed and/or refused to pay the principal balance, finance charges or any part thereof to Plaintiff. WHEREFORE, Plaintiff demands Judgment in its favor and against Defendants, Robert J. Philbin and Heshey, Philbin and Associates, Inc. jointly and severally, in the amount of $6,763.90 with continuing finance charges thereon at the rate of 23.100% per annum from March 3, 2010 plus costs. THIS IS AN ATTEMPT TO COLLECT A DEBT AND ANY INFORMATION OBTAINED SHALL BE USED FOR THAT PURPOSE. WELTMAN, WEINBERG & REIS, CO., L.P.A. James C. PA I.D. WELT 1400 436 ', (4 Esquire WEINBERG & REIS CO., L.P.A. Building filth Avenue ;h, PA 15219 4-7955 W)WR#:7958090 Previous Balance FINANCE Payments & ?s& Credits CHARGE Transactions New Balance Minimum Payment Due Date -I $O•00D + $104.92 + $39.00 = $5,600.00 $1,206.10 Jun. 03, 2009 Apr. 10, 2009 - May. 09, 2009 Page 1 of 1 Pisa Business Card Account 1802-1371-0T69.27TE Your Account Infomnadon TOTAL CREDIT LINE $5,000 00 TOTALAVAILABLE CREDIT $0,00 CREDIT LINE FOR CASH $2,500.00 AVAILABLE CREDIT FOR CASH $0 00 Finance Charges (Please see reverse for important information) Balance ate Perioc CamespondEg FWINCE applied to rate APR CHARGE Purchases 55,514.36 006342%[) 2315% S10492 Cash 5000 005342%D 2315% 5000 ANNUAL PERCENTAGE RATE applied this period: 2115% Q At Your Service - Co to wmvaoitalxr can to manage your amt, a 0A b IM-8tVaN w repot a List or A*n cad or speak to Custainer Rehears ® Pay O0lne at wff2gMslxracon or mail yrrpeymert to. CPU One Bate (USA), NA - P O Bad 71053. Charlotte, NC 28272-1063 Sand k9uhies to: Daplal Ores P D Bad 30285 • Set Lake sty, Ur 841M M Q For More Intonation on your Small Business account Vast: ® Hm a question stout a dirge on your ddenerrl? Please refer to the Bdlmg Rights Summary on the beck of your statement or visit HFASE PAY AT LEAST TIES AMUN'r You're behnd try sic paymsrts If we charge off you sic ourlt cW to late or MWsd paymetlls, fi charges wll continue to accrue Aci raw to prevent Ihs from h)ppemng Plearse pay the minimum Wrrient amount on your statement or give us at call at 1 88 955 6601) We're here to help rake control of your credit with Cal One -Importmt Notice" Un lar the terms we previously dosed to you, your account is now ekgtie fa an Increase in Annual Percentage Rates (APRs) eAecM mmedistey Fbwever, Capital One has elected not to raise you APRs at he time Please be adored that f you fat to keep your account n good standing, Capital One reserves the right to raise your APRs in the We loam nits. Credits & Adiustlments Transactions 1 04 MAY PAST DUE -=EE S3900 You account has gone over is credit knit To avoid addhonal overlent fees, you should pay more than the Minimum Payment Please pay enough to brag you account oahnce below your treat tmi mmediatey, and make sue you account belarae remains below your credit limit Please be sue U1e amount you pay accounts for any fubre pucteses, fees, and firtance charges You were assessed a past due fee because you mrrimurn payrrneri was rat received by the due cdte To avoid this fee in the Rtue, we wornmerrd that you Wow at bast 7 business days for you minimum payment to reach Gandal One PLEASE RETURN PORTION BELOW WrTH PAYMENT OR LOG ON TO WWW CANTALONE COM TO MAKE YOUR PAYMENT ONLINE 7958090 ?,,,?,,?,_ 1 4802137107692776 09 5600000207901206103 cw ft .Te' Account Number: 4802.1371-0769-2776 Due Date New Balance Minimum Payment Amount Enclosed Jun. 03, 2009 $5,600.00 $1,206.10 i'IEASE PAY AT LEAST THIS AMOUNT #9013005762477789# ROBERT J PHILBIN HERSHEY PHILBIN ASSOCIATES, INC. 2103, ORCHARD RD STE 3 CAMP HILL, PA 17011-7439 Ihl'I'I?IIbIr'rnrlrlhuplllrOhllHrdllll'Illl'lPlllger Lend a hand. Save the land. Manage your account online today- it's fast, easy and secure. Pay crime "tortme-no more check,, stamps or clutter Q Moving) Change your address online or on the hack e Help save the planet Go paperless © Sign up at www capttalone corn Capital One Bank (USA), N.A. P.O. Box 71083 Charlotte, NC 26272-1063 Illllilrlllrrllhlrllrlllllllrrlllllrrllrlrllirlirrlllllldrlul Please make checks payable to Capital One Bank (USN, NA and mail with this coupon in the enclosed envelope. EXHIBIT PROTHONOTARY CUMBERLAND CO CAPITAL ONE BANK (USA), N.A., Plaintiff, V. ROBERT J PHILBIN Defendant(s). VERIFICATION The undersigned does hereby verify subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities, that he/she is an authorized agent of CAPITAL ONE BANK (USA), N.A., Plaintiff herein, and that he/she is duly authorized to make this Verification, and that the facts set forth in the foregoing Complaint in Civil Action are true and correct to the best of his/her knowledge, information an Dated: Davina John on A049 WELTMAN, WEINBERG & REIS CO., L.P.A. ?qcw)qc) IN THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY, PENNSYLVANIA CIVIL DIVISION COVER SHEET PLAINTIFF(S): CAPITAL ONE BANK **File at the Washington County Prothonotary** Case No. C-63-CV- (Leave Case Number blank if this is a new filing) TYPE OF PLEADING: SELECT PLEADING TYPE BELOW U L MPLAINT IN CIVIL ACTION (ASSUMPSIT) vs. r t f QF ?k'~ F~`~ ~~^~TARY ~~ n~~ ...z P~ ~: !b s-~ ~}~ai C~MpE~~NSYLVANtA ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION CAPITAL ONE BANK (USA),NA Plaintiff vs. ROBERT J PHILBIN and PHILBIN ASSOCIATES HERSHEY Defendant(s) No. 10-2147 CIVIL TERM PRAECIPE TO REINSTATE COMPLAINT FILED ON BEHALF OF Plaintiff COUNSEL OF RECORD OF THIS PARTY: Lyndsay E Rowland, Esquire PA ID #205520 WELTMAN, WEINBERG & REIS CO., L.P.A. 1400 Koppers Buidling 436 Seventh Avenue Pittsburgh, PA 15219 (412)434-7955 WWR#7958090 NPE $10.00 P ID A-rr/ e~ ~^118'fy3 ~ ay ~ c~~a e ~ IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION CAPITAL ONE BANK (USA),NA Plaintiff vs. Civil Action No. 10-2147 CIVIL TERM ROBERT J PHILBIN and PHILBIN ASSOCIATES HERSHEY Defendant(s) PRAECIPE TO REINSTATE COMPLAINT Kindly reinstate the Complaint in the above captioned matter. WELTMA]~1,1~VEINBERG & REIS CO., L.P.A. By: Lyndsay E Ro an , PA ID #2055 0 WELTMAN, EINBE 1400 Koppers Buidling 436 Seventh Avenue Pittsburgh, PA 15219 (412)434-7955 WWR #7958090 uire & REIS CO., L.P.A. SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor Capital One Bank (U.S.A.) N.A. Case Number vs. Hershey Philbin & Associates, Inc. (et al.) 2010-2147 SHERIFF'S RETURN OF SERVICE 09/14/2010 07:30 PM - Michael Barrick, Deputy Sheriff, who being duly sworn according to law, states that on September 14, 2010 at 1930 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Robert J. Philbin, by making known unto himself personally, at 4905 Colonial Drive, Mechanicsburg, Cumberland County, Pennsylvania 17055 its contents and at the same time handing to him personally the said true and correct copy of the sam /,? ??• -J MICHAEL BARRICK, DEPUTY SHERIFF COST: $37.00 September 15, 2010 SO ANSWERS, 7 ,V RON ' R ANDERSON, SHERIFF C- CZ) 7 - ET? r yp n TI ?_1 fr y CM =? rn ?' Cy°! GU ? '? ] IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION .- w N) CAPITAL ONE BANK (USA), NA, Plaintiff, V. ROBERT J. PHILBIN HERSHEY, PHILBIN & ASSOCIATES, INC Defendants. NO: 10-2147 Civil Term PRELIMINARY OBJECTIONS TO THE COMPLAINT FILED ON BEHALF OF Defendants COUNSEL OF RECORD OF THIS PARTY Kenneth W. Lee PA I. D. No. 50016 TUCKER ARENSBERG, P.C. 2 Lemoyne Drive Suite 200 Lemoyne, PA 17043 Telephone: (717) 234-4121 Facsimile: (717) 232-6802 Email: klee@tuckerlaw.com IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION CAPITAL ONE BANK (USA), NA, Plaintiff, V. NO: 10-2147 Civil Term ROBERT J. PHILBIN HERSHEY, PHILBIN & ASSOCIATES, INC Defendants. PRELIMINARY OBJECTIONS TO THE COMPLAINT And Now, come Defendants, Robert J. Philbin and Hershey, Philbin & Associates, Inc., by and through their attorneys, Tucker Arensberg, P.C., who file these Preliminary Objections To The Complaint and in support thereof state: 1. Preliminary Objections to a Complaint are permitted by Pa.R.C.P. 1028. 2. Plaintiff's Complaint is defective in that it refers to an "Agreement" but no agreement or other writing obligating either or both Defendants to Plaintiff is attached to the Complaint. 3. The Complaint seeks compound interest at the rate of 23.100% per annum which is significantly above Pennsylvania's legal rate of interest. 4. Defendants cannot be held liable for a rate of interest in excess of Pennsylvania's legal rate without either (a) an agreement signed by them agreeing to the higher interest rate or (b) Plaintiff identifying a statute assessing a higher rate of interest upon Defendants. 5. The Complaint fails to comply with either of the mandates under Pennsylvania law identified in paragraph 4 of these Preliminary Objections. 6. The Complaint fails to identify the principal balance allegedly due and the interest thereon allegedly owed. 7. The Complaint fails to conform with Pa.R.C.P. 1019(a) because it does not set forth material facts on which the cause of action is based. 8. The Complaint fails to conform with Pa.R.C.P. 1019(f) because it does not set forth averments of time, place and items of special damages. 9. The Complaint fails to conform with Pa.R.C.P. 1019(h) because it fails to state whether the alleged Agreement is oral or written. 10. The Complaint fails to conform with Pa.R.C.P. 1019(1) because it fails to attach the alleged Agreement. 11. These Preliminary Objections should be sustained and the Complaint dismissed because there is no claim upon which relief can be granted. 12. These Preliminary Objections should be sustained and the Complaint dismissed because the Complaint fails to conform to law or rule of court. 13. The Preliminary Objections should be sustained and the Complaint dismissed because the Complaint lacks the requisite specificity required. 14. This Court is authorized to sustain these Preliminary Objections and dismiss the Complaint pursuant to Pa.R.C.P. 1028(a)(2), 1028(a)(3) and 1028(a)(4). 2 WHEREFORE, Defendants, Robert J. Philbin and Hershey, Philbin & Associates, Inc., request this Court to enter an Order sustaining these Preliminary Objections and dismissing the Complaint. Respectfully submitted, TUCKER ARENSBERG, P.C. /PA neth W. Lee I . D. No. 50016 2 Lemoyne Drive Suite 200 Lemoyne, PA 17043 Telephone: 717-234-4121 Facsimile: 717-232-6802 Email: klee@tuckerlaw.com Attorneys for Defendants H BGDB:125420-1 999999-999999 3 CERTIFICATE OF SERVICE AND NOW, this 9th day of March, 2012, I, Kenneth W. Lee, of the law firm, Tucker Arensberg, P.C., attorneys for Defendants, hereby certify that I have this day served the forgoing Preliminary Objections to the Complaint by depositing a true and correct copy of the same in the United States Mail, first class, postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: James C. Warmbrodt, Esquire Matthew D. Urban, Esquire Weltman, Weinberg & Reis Co., L.P.A. 1400 Koppers Building 436 Seventh Avenue Pittsburg, PA 15219 Kenneth W. Lee 4 WELTMAN, WEINBERG & REIS CO., L.P.A. BY: Ashley L. Sweeney, Esquire Attorney for Plate 19 AM H : It � I.D. No. 313667 436 Seventh Avenue 1400 Koppers Building `; riiCL �LJ lrl i Pittsburgh, PA 15219 +ai S�' '�; C t� Phone: (412) 434-7955 Fax: (412) 338-7130 File# 7958090 ASW/ABR CAPITAL ONE BANK (USA),NA CUMBERLAND County Court of Common Pleas vs. No.: 10-2147 CIVIL TERM ROBERT J PHILBIN HERSHEY, PHILBIN & ASSOCIATES, INC. PRAECIPE TO DISMISS WITH PREJUDICE TO THE PROTHONOTARY: Kindly dismiss the above matter with prejudice . WELTMAN, WEINBERG & REIS CO., L.P.A. 1 BY _ _ Ash R!l w � s• ire Attorney for ' aintiff 111111 1111111111 I I I 1 111111 11111 11111 11111 11111 1111111111 I I I I I I I I