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HomeMy WebLinkAbout10-4720SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor a~ptr AT ~ ~c~6,r~j~~~ i/ ~`~ ,'; ~ .; ?"c .:, 1,.. QFFICE C ~ -aE sr~RlFF ~(;.E_':' _~. L~IO v'vL G.t~. ~ ii ~?.. ~:, „.; Citibank (South Dakota) N.A. Case Number vs. Cathy L. Bartoo 2010-4720 SHERIFF'S RETURN OF SERVICE 07/20/2010 07:13 PM -Noah Cline, Deputy Sheriff, who being duly sworn according to law, states that on July 20, 2010 at 1913 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Cathy L. Bartoo, by making known unto herself personally, at 6025 Hummingbird Drive, Mechanicsburg, Cumberland County, Pennsylvania 17050 its contents and at the same time handing to her personally the said true and correct copy of the same. SHERIFF COST: $37.00 July 21, 2010 - ~~_-~~ NOAH CLINE, DEPUTY SO ANSWERS, RON R ANDERSON, SHERIFF (c) GountySuite ShenB, Teleosott. Inc. Douglas R. Roeder, Esq. Supreme Court No. 80016 Elder Law Clinic The Dickinson School of Law The Pennsylvania State University 45 North Pitt Street Carlisle, PA 17013-2899 (717) 240-5152 Attorney for Defendant `f ~ __ ~'i~t ,~ .~ __ ~ .. -IS n ! n E,, ~; R~v!> !o ~/Y1 a ~Sz/ 1.. 1.a't._ _ . c 1 ? r'w ~t _ IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CITIBANK (SOUTH DAKOTA), N.A. 701 East 60~' Street N Sioux Falls, SD 57117 Plaintiff v. CATHY L. BARTOO 6025 Hummingbird Drive Mechanicsburg, PA 17050-2048 Defendant No. 10-4720 CIVIL TERM NOTICE TO PLEAD You are hereby notified to file a response to the above-referenced matter within twenty (20) days from the service thereof or a judgment may be entered against you. annah R. Suhr Certified Legal Intern Respectfully submitted, ~~ ~ Douglas R. Roeder, Esq. Supreme Court No. 80016 Elder Law Clinic The Dickinson School of Law The Pennsylvania State University 45 North Pitt Street Cazlisle, PA 17013-2899 (717) 240-5152 Attorney for Defendant Douglas R. Roeder, Esq. Supreme Court No. 80016 Elder Law Clinic The Dickinson School of Law The Pennsylvania State University 45 North Pitt Street Carlisle, PA 17013-2899 (717) 240-5152 Attorney for Defendant ~-i~ ~:- T; . t l iJ..~ C : ,, ,-r,~ .3 ~ - 4~. IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CITIBANK (SOUTH DAKOTA), N.A. 701 East 60~' Street N Sioux Falls, SD 57117 Plaintiff No. 10-4720 v. CIVIL TERM CATHY L. BARTOO 6025 Hummingbird Drive Mechanicsburg, PA 17050-2048 Defendant PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT Defendant, Cathy L. Bartoo, by and through her attorney, Douglas R. Roeder, of the Elder Law and Consumer Protection Clinic of the Dickinson School of Law, objects to the Plaintiff s Complaint. In support of these Preliminary Objections, Defendant sets forth as follows: 1. The Plaintiff, CITBANK (SOUTH DAKOTA), N.A., is a company with its principal place of business located at 701 East 60~' Street N, Sioux Falls, SD 57117. 2. Plaintiff is represented by Yale D. Weinstein, located at 1060 Andrew Drive, Suite 170, West Chester, PA 19380. 3. The Defendant is Cathy L. Bartoo, an adult individual who resides at 6025 Hummingbird Drive, Mechanicsburg, PA 17050-2048. 4. Defendant is represented by the Elder Law Clinic of the Dickinson School of Law of the Pennsylvania State University, located at 45 North Pitt Street, Carlisle, PA 17013. 5. Plaintiff filed a Civil Action Complaint against Defendant on July 29, 2010, alleging Defendant owes $8,220.14 for amounts due on an account issued by CITIBANK (SOUTH DAKOTA), N. A. 6. Plaintiff s Complaint was served on the Defendant on or about July 20, 2010. PRELIMINARY OBJECTIONS PURSUANT TO Pa.R.C.P.1028(a)(2)- FAILURE OF A PLEADING TO CONFORM TO LAW OR RULE OF COURT 7. Pazagraphs 1 through 6 of Defendant's Preliminary Objections to Plaintiff's Civil Complaint aze hereby incorporated by reference as if set forth at length. A. PLAINTIFF'S COMPLAINT FAILS TO CONFORM TO A RULE OF LAW OR COURT IN THAT IT DOES NOT COMPLY WITH PA.R.C.P. 1019(1). 8. Pa.R.C.P. 1019(1) requires the Plaintiff to attach to the Complaint a copy of the writing or material part thereof upon which the Complaint is based. 9. The Plaintiff's Complaint alleges in pazagraph 6 that a true and correct copy of the total due and owing to the account was attached. 10. Plaintiff has failed to attach a true copy of the amount owing from the creditor, Citibank. 11. Plaintiff has provided only an August 2007 statement listing the total Plaintiff alleges is owed on the account. 12. The Plaintiff s Complaint alleges in paragraphs 5 and 6 that all credits to which the Defendant is entitled have been applied to the account. 13. Plaintiff has failed to attach a true copy of the account statement evidencing the application of the credits applied to Defendant's account. 14. Plaintiff should provide actual copies of each of the bills that total the alleged amount owed on the account WHEREFORE, Defendant Cathy L. Bartoo respectfully requests that this Honorable Court grant the Defendant's Preliminary Objections pursuant to 10919(1) and require the Plaintiff to produce true and correct copies of Defendant's account statement from CITIBANK (SOUTH DAKOTA), N.A., the Original Creditor. Alternatively, Defendant respectfully requests that this Honorable Court dismiss Plaintiff s complaint with prejudice for failure to conform to the Rules of the Court. B. PLAINTIFF'S COMPLAINT FAILS TO CONFORM TO A RULE OF LAW OR COURT IN THAT IT DOES NOT COMPLY WITH PA.R.C.P. 1019(1). 15. Pa.R.C.P. 1019(1) requires the Plaintiff to attach to the Complaint a copy of the writing or material part thereof upon which the Complaint is based. 16. The Plaintiff s Complaint alleges in Paragraph 4 that Plaintiff furnished consumer credit to the defendant by means of a credit card with account number ending in 8834. 17. Plaintiff has failed to attach a true and correct copy of the alleged contract agreement between plaintiff and defendant. 18. Plaintiff should provide an actual copy of the alleged contract agreement between the parties. WHEREFORE, Defendant Cathy L. Bartoo respectfully requests that this Honorable Court grant the Defendant's Preliminary Objections pursuant to 1019(1) and require the Plaintiff to produce a true and correct copy of the alleged contract agreement between plaintiff and defendant. Alternatively, Defendant respectfully requests that this Honorable Court dismiss Plaintiff's complaint with prejudice for failure to conform to the Rules of the Court. PRELIMINARY OBJECTIONS PURSUANT TO Pa.R C P 1028(a)(3) INSUFFICIENT SPECIFICITY IN A PLEADING 19. Paragraphs 1 through 18 of Defendant's Preliminary Objections to Plaintiff's Amended Complaint are hereby incorporated by reference as if set forth at length. 20. Plaintiff s Complaint lacks specificity in that it does not provide an accounting of the alleged debt owed. 21. Plaintiff s Complaint alleges in paragraph 8 that Plaintiff has suffered monetary damages in the amount of $8.220.14. 22. Plaintiff has failed to provide copies of the account and statements evidencing the charges made and interest accrued to reach the asserted amount of $8,220.14. 23. It appears that interest was charged, but Plaintiff has failed to indicate how Plaintiff has arrived at the total monetary damages asserted. 24. Plaintiff should provide a specific accounting of how its alleged damages total $8,220.14. WHEREFORE, Defendant Cathy L. Bartoo respectfully requests that this Honorable Court grant the Defendant's Preliminary Objections pursuant to 1028(a)(2) and 1028(a)(3) and require the Plaintiff to provide proper indication of how Plaintiff arrived at the amount of total damages asserted in pazagraph 8 and produce true and correct copies of Defendant's account statement from CITIBANK (SOUTH DAKOTA), N.A., the Original Creditor. Alternatively, Defendant respectfully requests that this Honorable Court dismiss Plaintiff's complaint with prejudice for failure to conform to the Rules of the Court. Date: ~ `E~ ~ ~~ Respectfully Submitted, ~~~ ,~-,. Douglas R. Roeder, Esq. Supreme Court No. 80016 Elder Law Clinic The Dickinson School of Law The Pennsylvania State University 45 North Pitt Street Cazlisle, PA 17013-2899 (717) 240-5152 Attorney for Defendant IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CITIBANK (SOUTH DAKOTA), N.A. 701 East 60`~ Street N Sioux Falls, SD 57117 Plaintiff No. 10-4720 v. CIVIL TERM CATHY L. BARTOO 6025 Hummingbird Drive Mechanicsburg, PA 17050-2048 Defendant CERTIFICATE OF SERVICE I, Hannah R. Suhr, Certified Legal Intern, certify that on August 6, 2010, I served the foregoing Preliminary Objections to Plaintiff's Complaint by placing a true and correct copy of the same in the United States first class mail, postage prepaid, addressed as follows: Yale D. Weinstein, Esq. 1060 Andrew Drive, Suite 170 West Chester, PA 19380 C_b~l Date: 4 o By: annah R. Suhr Certified Legal Intern Elder Law and Consumer Protection Clinic The Dickinson School of Law The Pennsylvania State University 45 North Pitt Street Carlisle, PA 17013 Todd J. Shill, Esquire Attorney LD. No. 69225 Stephanie E. DiVittore, Esquire Attorney I.D. No. 85906 BROADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717)233-5731 Attorneys for Mark Nelson DAWN NELSON, v. MARK NELSON, Plaintiff ~" ~ ,_ ~~F`. 2V{~ Ii~v~.7 1~ ~'3f}~ ~d~ ~J r ~~ ~ ~, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 10-4892 Civil Term Defendant PRAECIPE FOR ENTRY OF APPEARANCE TO: Cumberland County Prothonotary Kindly enter the appearance of Todd J. Shill, Stephanie E. DiVittore and Rhoads & Sinon LLP as counsel on behalf of Defendant Mark Nelson in this action. Respectfully submitted, BROADS & SINON LLP By: ~~ ~ ~ ~-f-fz.~~--. Todd J. Shill, Esquire Stephanie E. DiVittore, Esquire One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Mark Nelson 788485.1 •~ Y DAWN NELSON, v. MARK NELSON, Plaintiff Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 10-4892 Civil Term ~ ~-' r-- -, . - o NOTICE TO PLEAD To: Plaintiff Dawn Nelson c/o Edmund J. Berger, Esquire Berger Law Firm, P.C. 2104 Market Street Camp Hill, PA 17011 c cy -~ -n G 4 "- _ to `::-, ~-~ ~ ~rY YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER AND COUNTERCLAIM WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. Respectfully submitted, BROADS & SINON LLP By: Todd J. Shill Stephanie E. DiVittore One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Mark Nelson Todd J. Shill, Esquire Attorney I.D. No. 69225 Stephanie E. DiVittore, Esquire Attorney I.D. No. 85906 BROADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717)233-5731 Attorneys for Mark Nelson DAWN NELSON, v. MARK NELSON, Plaintiff Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 10-4892 Civil Term ANSWER. NEW MATTER & COUNTERCLAIM OF MARK NELSON NOW COMES Defendant Mark Nelson, through his attorneys, Rhoads & Sinon LLP, and files the following Answer, New Matter and Counterclaim stating as follows: 1. Admitted based on information and belief. 2. Admitted. 3. Admitted. 4. Denied as stated. It is admitted that Plaintiff and her three children moved into Defendant's home on November 23, 2009, and it is admitted property was placed in Defendant's home and in a storage unit at Capital Self Storage. It is also admitted that the storage unit was registered in Defendant's -name. Defendant is without knowledge as to the specific property placed in his home and the storage unit and proof thereof is demanded at the time of trial. By way of further response, Defendant has been forced to incur all fees associated with paying for the storage unit from November, 2009 through the present. 788268. I 5. Denied as stated. It is admitted that Plaintiff and her children moved out of Defendant's home on March 23, 2010. It is specifically denied that most of their personal possessions were left in Defendant's home and the storage unit, and specific proof of this allegation is demanded at the time of trial. 6. Denied. It is specifically denied that when Plaintiff and her children moved out of Defendant's home, Defendant changed the locks to Defendant's home. It is further denied that Defendant was required to permit Plaintiff to enter his property. 7. The allegation of Paragraph 7 is a legal conclusion to which no response is required. To the extent a response is required, the same is specifically denied. 8. Denied. It is specifically denied that Defendant acted wrongfully or improperly in any way with respect to Plaintiff, her children or otherwise, and specific proof of these allegations is demanded at the time of trial. 9. Denied. Defendant is without knowledge regarding the specific description, source of ownership, value or location of the property set forth in Paragraph 9 and the same is therefore denied with specific proof demanded at the time of trial. Byway of further response, it is expressly denied that the property described as "Plaintiff's other property in personal possession of Defendant (unsure of location)" items (a) through (g) constitute property of Plaintiff s or gifts from Defendant. 10. Denied. It is specifically denied that Defendant has possession of Plaintiff's property totaling $29,350, and specific proof of this allegation is demanded at the time of trial. 11. Denied as stated. It is admitted that, as set forth more fully below, Plaintiff owes Defendant money pursuant to an express agreement between the parties. The remaining -2- allegations of this paragraph are specifically denied, and specific proof of these allegations is demanded at the time of trial. 12. Denied. Defendant is without knowledge regarding the allegations of Paragraph 12 and the same are thus specifically denied. 13. The allegations of paragraph 13 are legal conclusions to which no response is required. To the extent a response is deemed appropriate, the same are specifically denied. By way of further response, Defendant has acted, at all times, in accordance with his rights and Pennsylvania law. 14. The allegations of paragraph 14 are legal conclusions to which no response is required. To the extent a response is deemed appropriate, the same are specifically denied. By way of further response, Defendant has acted, at all times, in accordance with his rights and Pennsylvania law. 15. Denied as stated. The document attached as Exhibit "A" to the Complaint is a writing that speaks for itself, and any attempt to characterize the same is specifically denied. By way of further response, it is specifically denied that Defendant has acted improperly with regard to Plaintiff or the allegations set forth in the Complaint. 16. The allegations of paragraph 16 are legal conclusions to which no response is required. To the extent a response is deemed appropriate, the same are specifically denied. By way of further response, Defendant has acted, at all times, in accordance with his rights and Pennsylvania law. -3- WHEREFORE Defendant Mark Nelson respectfully requests that this Court enter judgment in his favor and against Plaintiff and further request that this Court award any other relief allowed by law. NEW MATTER 17. Any damages sustained by the Plaintiff were as a direct result of Plaintiffs own acts or omissions and/or as a result of the acts or omissions of third parties, including Plaintiff s agent(s) or conditions which were beyond the control of Defendant. 18. There is no causal connection between the damages sought by Plaintiff and any conduct or omission by Defendant. 19. Plaintiffs Complaint fails to state a cause of action upon which any relief may be granted. 20. Plaintiff s claims are barred by waiver. 21. Plaintiff s claims are barred by estoppel. 22. Plaintiffs claims are barred by payment or offset. 23. Plaintiffs claims are barred by the statute of frauds. 24. Plaintiffs claims are barred by laches. 25. Plaintiffs claims are barred by the statute of limitations. 26. Plaintiff has not suffered any damages in this matter and to the extent that Plaintiff can prove that she has suffered damages, it is solely as a result of her own actions or in- actions or the actions or in-actions of third parties. -4- 27. To the extent Plaintiff is entitled to recover from Defendant, which Defendant expressly denies, Plaintiff is not entitled to damages or costs as set forth in Plaintiff's Complaint. WHEREFORE Defendant Mark Nelson respectfully requests that this Court enter judgment in his favor and against Plaintiff and further request that this Court award any other relief allowed by law. COUNTERCLAIM 28. In February, 2010, Ms. Nelson requested that Mr. Nelson provide her with a credit card for her to use. 29. Ms. Nelson expressly agreed that if Mr. Nelson provided such card, Ms. Nelson would be completely and fully responsible for all charges made on such card and would pay for the same each month. 30. Based on Ms. Nelson's express agreement and representations, Mr. Nelson authorized Ms. Nelson to use a credit card, a Slate card from Chase, in his name. Ms. Nelson, however, was expressly obligated by the parties' agreement to forward payment in full each month for the charges made on the card. 31. From February, 2010, through March 23, 2010, Ms. Nelson used the credit card, incurring charges totaling $8,211.33, exclusive of interest. 32. All charges incurred on the card were charges by Ms. Nelson and charges which Ms. Nelson expressly agreed to pay pursuant to the contract between the parties. 33. Ms. Nelson made a payment to the credit card company in March, 2010 in the amount of $458.60, the balance of the first credit card bill. -5- 34. Since March, 2010, Ms. Nelson has failed to make further payment to the credit card company. 35. Acknowledging her obligation to pay for the credit card charges, Ms. Nelson did provide a check to Mr. Nelson in the amount of $1,000.00, a portion of the outstanding balance, to Mr. Nelson. These funds were not actually received, however, as there were insufficient funds in Ms. Nelson's account. COUNT I -BREACH OF CONTRACT 36. Defendant incorporates Paragraphs 1 through 36 above. 37. Pursuant to the parties' agreement, Ms. Nelson was responsible for payment of all charges incurred on the credit card utilized by her. 38. Ms. Nelson has acknowledged that she incurred the charges and was responsible for the same based on her payment of the initial monthly bill and provision of another check to Mr. Nelson, although that check has not been honored. 39. Despite her express contractual duties based on the agreement between the parties, however, Ms. Nelson has failed to pay the remaining outs due and owing for the charges on the card. 40. Therefore, Ms. Nelson is liable for all charges on the card, as well as any and all damages caused by Ms. Nelson's breach of the parties' agreement. 41. As a result of the breach of the parties' agreement, Mr. Nelson has suffered damages in excess of $8,000.00, as Ms. Nelson failed to make payment in the amount of $7,752.73 for the outstanding charges she made on the card, and Mr. Nelson has incurred interest charges in excess of $290.00, charges which continue to accrue. -6- WHEREFORE Defendant Mark Nelson demands judgment in his favor and against Plaintiff Dawn Nelson in an amount in excess of $8,000.00, together with interest, costs and such other relief as allowed by Pennsylvania law. COUNT II -PROMISSORY ESTOPPEL 42. Defendant incorporates herein by reference Paragraphs 1 through 42 above. 43. Throughout the discussions between the parties, Ms. Nelson represented and warranted that if permitted to utilize the credit card, Ms. Nelson would comply with her obligations and make payment for all charges incurred on the card and interest or fees charged as a result of her purchases. 44. These representations and warranties were false and materially misleading, however, as Ms. Nelson did not intend to comply with her obligations. 45. Ms. Nelson knew, or should have known, that the representations and warranties were false and materially when they were made. Additionally, Ms. Nelson should reasonably have expected that the representations and warranties would induce Mr. Nelson to enter into the agreement and permit her use of the card. 46. Mr. Nelson reasonably relied on Ms. Nelson's false and materially misleading representations and warranties. 47. Injustice in this case can only be avoided by enforcing the promises, representations and warranties made by Ms. Nelson. 48. Mr. Nelson has been damaged as a result of the Ms. Nelson's false and materially misleading representations and warranties. -7- WHEREFORE Defendant Mark Nelson demands judgment in his favor and against Plaintiff Dawn Nelson in an amount in excess of $8,000.00, together with interest, costs and such other relief as allowed by Pennsylvania law. COUNT III -UNJUST ENRICHMENT 49. Defendant incorporates herein by reference Paragraphs 1 through 49 above. 50. Ms. Nelson has benefited by Mr. Nelson's actions as set forth above, while Ms. Nelson failed to perform as required by the terms of the parties' agreement. 51. As a direct and proximate cause of such unjust enrichment, Mr. Nelson has sustained damages in an amount in excess of $8,000.00. 52. Injustice will result if recovery is denied. WHEREFORE Defendant Mark Nelson demands judgment in his favor and against Plaintiff Dawn Nelson in an amount in excess of $8,000.00, together with interest, costs and such other relief as allowed by Pennsylvania law. By: Respectfully submitted, BROADS & SINON LLP Todd J. Shill Stephanie E. DiVittore One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Mark Nelson -8- VERIFICATION I, Mark Nelson, hereby verify that the facts set forth in the foregoing "Answer, New Matter and Counterclaim" are true and correct to the best of my knowledge, information, and belief. This verification is made subject to the penalties of 18 Pa. Cons. Stat. Ann. § 4904 relating to unsworn falsification to authorities. Date ~~ a Mark Nelson CERTIFICATE OF SERVICE I hereby certify that on this ~ day of August, 2010, a true and correct copy of the foregoing Answer, New Matter and Counterclaim of Mark Nelson was served by means of electronic and United States mail, first class, postage prepaid, upon the following: Edmund J. Berger, Esquire Berger Law Firm, P.C. 2104 Market Street Camp Hill, PA 17011 e Dara Whistler FlLEt} (CErr?? rr r TL ".'..' , i A4111 : 3 0 CUMBE i _ r; t rJUNTY PEMSYL.VAN A BURTON NEIL & ASSOCIATES, P.C. Trenton A. Farmer, Esquire Id. No. 209422 1060 Andrew Drive, Suite 170 West Chester, PA 19380 610-696-2120 Attorney for Plaintiff CITIBANK (SOUTH DAKOTA), N.A. IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v CATHY L BARTOO : NO. 10-4720 CIVIL TERM Defendant : CIVIL ACTION - LAW PLAINTIFF'S ANSWER TO DEFENDANT'S PRELIMINARY OBJECTIONS 1. Admitted. 2. Denied. Plaintiff is represented by the attorneys of Burton Neil & Associates, P.C. 3. Admitted. 4. Admitted. 5. Admitted in part. Denied in part. It is denied plaintiff served defendant on July 29, 2010. To the contrary, plaintiff filed a Civil Action Complaint against defendant on July 19, 2010. The balance of the averment is admitted. 6. Admitted. PRELMINARY OBJECTIONS PURSUANT TO Pa.R.C.P. 1028(a)(2) - FAILURE OF A PLEADING TO CONFORM TO LAW OR RULE OF COURT 7. This is an incorporation paragraph to which no response is necessary. A. PLAINTIFF'S COMPLAINT FAILS TO CONFORM TO A RULE OF LAW OR COURT IN THAT IT DOES NOT COMPLY WITH PA.R.C.P. 1019(1). 8. Denied. Pa.R.C.P. 1019(i) is a writing that speaks for itself and any interpretation by defendant of the Rule that is contrary to the express language of the Rule is specifically denied. 9. Denied. Plaintiff's complaint is a writing that speaks for itself and any interpretation by defendant of the complaint that is contrary to the express language of the complaint is specifically denied. 10. Denied as stated. To the contrary, plaintiff s complaint avers a cause of action based upon an account stated and properly attaches the document upon which it relies, a copy of the monthly billing statement originally sent to defendant (card holder) which appropriately lists the total balance due and owing. See Citibank (South Dakota), N.A. v. King, 2 Pa. D. & C.5th 60 (2007); Rush's Service Center, Inc. v. Genareo, 10 Pa. D. & CAth 445 (1991); Ryon v. Andershonis, 42 Pa. D. & C.2d 86 (1967). 11. Denied. Plaintiff s Exhibit A is a writing that speaks for itself and any interpretation by defendant of the Exhibit A that is contrary to the express language of the Exhibit A is specifically denied. By way of further response, plaintiff s complaint avers a cause of action based upon an account stated and attaches a copy of the last monthly billing statement. sent to defendant. This is the only document required to be attached when pleading an account stated cause of action. See King, supra.; Genareo, supra.; Andershonis, supra. 12. Denied. Plaintiff s complaint is a writing that speaks for itself and any interpretation by defendant of the complaint that is contrary to the express language of the complaint is specifically denied. 13. Denied as stated. To the contrary, plaintiff properly attaches the document upon which it relies, a copy of the monthly billing statement originally sent to defendant (card holder) which appropriately lists the total balance due and owing. By way of fixrther response, it is denied that plaintiff failed to provide an accounting of its claim. The statement of account attached to the complaint reflects all credits due for payments made on account and reflects all charges, fees and interest applied to the subject matter credit card account. If defendant seeks a complete breakdown, such breakdown would be evidence and will be available to defendant in discovery. As set forth above, Pennsylvania is a fact pleading State and complaint paragraph 5 and 6 was an averment of fact, not an averment based upon a writing. 14. Denied. There are no facts set forth in the averment to which a responsive pleading is required. The allegation is denied pursuant to Pa. R. C. P. 1029(d). B. PLAINTIFF'S COMPLAINT FAILS TO CONFORM TO A RULE OF LAW OR COURT IN THAT IT DOES NOT COMPLY WITH PA.R.C.P.(i). 15. Denied. Pa.R.C.P. 1019(1) is a writing that speaks for itself and any interpretation by defendant of the Rule that is contrary to the express language of the Rule is specifically denied. 16. Denied. Plaintiff's complaint is a writing that speaks for itself and any interpretation by defendant of the complaint that is contrary to the express language of the complaint is specifically denied. 17. Denied. There are no facts set forth in the averment to which a responsive pleading is required. The allegation is denied pursuant to Pa. R. C. P. 1029(d). By way of further response, it is denied that the complaint is based upon a breach of contract cause of action. It is denied that there is a single averment in the complaint that is based upon the terms of a written contract. It is further denied that plaintiff's account stated cause of action is based upon the terms of a written contract. Defendant's conduct after receipt of the statement of account attached to the complaint as Exhibit A constitutes an account stated between the parties. The Exhibit A statement of account is the sole writing upon which plaintiff's claim relief is based. 18. Denied. There are no facts set forth in the averment to which a responsive pleading is required. The allegation is denied pursuant to Pa. R. C. P. 1029(d). Denied also as a conclusion of law in which no further response is required. PRELIMINARY OBJECTIONS PURSUANT TO Pa R C P 1028(a)(3) INSUFFICIENT SPECIFICITY IN THE PLEADING 19. This is an incorporation paragraph to which no response is necessary. 20. Denied. There are no facts set forth in the averment to which a responsive pleading is required. The allegation is denied pursuant to Pa. R. Cl. P. 1029(d). Denied also as a conclusion of law in which no further response is required. 21. Denied. Plaintiff's complaint is a writing that speaks for itself and any interpretation by defendant of the complaint that is contrary to the express language of the complaint is specifically denied. 22. Denied. There are no facts set forth in the averment to which a responsive pleading is required. The allegation is denied pursuant to Pa. R. C. P. 1029(d). Denied also as a conclusion of law in which no further response is required. By way of further response, it is denied that plaintiff failed to provide an accounting of its claim. The statement of account attached to the complaint reflects all credits due for payments made on account and reflects all charges, fees and interest applied to the subject matter credit card account. If defendant seeks a complete breakdown, such breakdown would be evidence and will be available to defendant in discovery. As set forth above, Pennsylvania is a fact pleading State and complaint paragraph 8 was an averment of fact, not an averment based upon a writing, plaintiff is not required to plead evidence. 23. Denied. There are no facts set forth in the averment to which a responsive pleading is required. The allegation is denied pursuant to Pa. R. C. P. 1029(d). Denied also as a conclusion of law in which no further response is required. By way of further response, please refer to paragraph 22 in plaintiff's response to preliminary objections. 24. Denied. There are no facts set forth in the averment to which a responsive pleading is required. The allegation is denied pursuant to Pa. R. C. P. 1029(d). Denied also as a conclusion of law in which no further response is required. WHEREFORE plaintiff requests this Honorable Court to overrule defendant's objections. BURTON NEIL &; ASSOCIATES, P.C. By: y' f -- - Trenton` . Farmer, Esquire Attorney for Plaintiff In making this communication, we advise our firm is a debt collector. Burton Neil & Associates, P.C. By: Trenton A. Farmer, Esquire ID. NO. 209422 1060 Andrew Drive, Suite 170 West Chester, PA 19380 610-696-2120 Attorney for Plaintiff CITIBANK (SOUTH DAKOTA), N.A. IN THE COURT OF COMMON PLEAS Plaintiff V. : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 10-4720 CATHY L BARTOO Defendant : CIVIL ACTION - LAW Certificate of Service I, Trenton A. Farmer, Esquire do hereby certify that I served a true and correct copy of the within Answers to Preliminary Objections and proposed Order on defendant's counsel, Douglas R Roeder, Esquire at his/her address of record via first class mail, postage prepaid on the date set forth below. Date:: Burton Neil & Associates, P.C. By: Trenton A. Farmer, Esquire Attorney for Plaintiff The law firm of Burton Neil & Associates is a debt collector. C-34361 CITIBANK (SOUTH DAKOTA), N.A. Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. CATHY L BARTOO AND NOW, this NO. 10-4720 CIVIL TERM : CIVIL ACTION - LAW Defendant ORDER day of 20 , on consideration of Defendant's Preliminary Objections to Plaintiff s Complaint, and Plaintiffs Answer thereto, it is hereby ORDERED that Defendant's Preliminary Objections are OVERRULED. BY THE COURT: J. QF Tk~~ F'F~~ E ~~~OTA~.t'. ZQ~~ ~~~ ~~ ~3 ~~ ~ 7 ~~~~ ~>_ ~~~~ ~0lS~v~~~ o~~,!N~.~, e'N ~(~~,~_~~ Burton Neil & Associates, P.C. By: Trenton A. Farmer, Esquire ID. N0.209422 1060 Andrew Drive, Suite 170 West Chester, PA 19380 610-696-2120 Attorney for Plaintiff CITIBANK (SOUTH DAKOTA}, N.A. Plaintiff v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CATHY L BARTOO Defendant NO. 10-4720 CIVIL ACTION -LAW Praecipe to Discontinue To the Prothonotary: Kindly discontinue the above-captioned action without prejudice. Burton Neil As ci s, P.C. B. Trenton A. Farmer, Esquire Attorney for Plaintiff The law firm of Burton Neil & Associates is a debt collector. C-34361