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Home My WebLink About10-7530r Our File No.: 295682 ' APOTHAKER & ASSOCIATES, P.C. BY: David J. Apothaker, Esquire Attorney I.D. #38423 520 Fellowship Road C306 Mount Laurel, NJ 08054 (800)672-0215 Attorneys for Plaintiff DISCOVER BANK 6500 NEW ALBANY ROAD NEW ALBANY, OH 43054 Plaintiff, vs. JENNIFER A KIMMEL 421 GEARY AVE NEW CUMBERLAND, PA 17070-1841 Defendant. F1LE0-OFFICE ,, OF ~~{E Pf20TNONOTAR 2010 ~~~ -~ P~3 3~ UO rU~~OEi;Lt~~~D COQ.!"r~TY COURT OF COMMON PLEAS CUMBERLAND COUNTY NO.. l 0 - 'rS~d 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 34 S. BEDFORD ST. CARLISLE PA 17013 717-249-3166 `~ ~~.~~~ u~t~f eK~ 9s~5 ~~--a.r~aos~ Y I ~ Our File No.: 295682 ' APOTHAKER & ASSOCIATES, P.C. BY: David J. Apothaker, Esquire Attorney I.D. #38423 520 Fellowship Road C306 Mount Laurel, NJ 08054 (800)672-0215 Attorneys for Plaintiff DISCOVER BANK 6500 NEW ALBANY ROAD NEW ALBANY, OH 43054 Plaintiff, vs. JENNIFER A KIMMEL 421 GEARY AVE NEW CUMBERLAND, PA 17070-1841 Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO.. ~Q ~ 7S3d C~/+ I ~~~+~. CIVIL ACTION COMPLAINT FIRST COUNT 1. Plaintiff is DISCOVER BANK, 6500 NEW ALBANY ROAD, NEW ALBANY, OH 43054. 2. Defendant(s) is/are JENNIFER A KIMMEL, an adult individual residing at 421 GEARY AVE NEW CUMBERLAND, PA 17070-1841. 3. At the special instance and request of Defendant, Plaintiff, DISCOVER BANK, issued to Defendant(s), Account # ending in 7193. 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 $8,220.97. 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 account and are included in Exhibit "A". 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) for the sum of $8,220.97 and requests this Court award costs to the extent permitted by applicable law. APOTHAKER & A IATES, P.C. Attorney or Pl tiff A Law Firm Ens ed in ebt Collectioi BY: David J. A~ioter, Esquire Dated: 11 /30/2010 Our File No.: 295682 VERIFICATION David J. Apothaker, EsQUire, Esq, 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 therein are made subject to the penalties of 18 Pa.C.S.A. The undersigned understands that the statements relating to unsworn falsification to authorities. David J. Apothaker~sq~ Attorney for Plaintiff DATE: 11/30/2010 DISCOVER BANK JENNIFER A KIMMEL 421 GEARY AVE NEW CUMBERLAND, PA 17070-1841 STATEMENT OF ACCOUNT Debtor's Name: JENNIFER A KIMMEL Account Number: ending in 7193 Balance Due: $8,220.97 Our File No.: 295682 EXHIBIT "A" 295682 - Request for Service • R. Thomas Kline Sheriff Cumberland County Office of the Sheriff One Courthouse Square Carlisle, PA 17013 Ph: 717.240.6390 Fx: 717-240-6397 Plaintiff/s: Court Number: DISCOVER BANK Expiration Date: Type of Action: Civil Action Defendants: JENNIFER A KIMMEL Serve Upon: JENNIFER A KIMMEL Address for Service: 421 GEARY AVE NEW CUMBERLAND, PA 17070-1841 Alternate Address for Service: Type of Service: OPersonal (X) Adult in Charge ODeputize OCertified Mail OPosting Special Service Instructions: * * If service is to be made by deputized service to another county please specify which county Filing Attorney Information: Name: Apothaker & Associates, P.C. Address: 520 Fellowship Road C306 Mount Laurel, NJ 08054 Tele hone: 215-634-8920 DISCOVER BANK, Plaintiff V. JENNIFER A. KIMMEL, Defendant : COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA No: 10-7530- CIVIL TERM Civil Action - Law NOTICE TO PLEAD To: Discover Bank c c3 c/o David J. Apothaker, Esquire M CD ?+ Apothaker and Associates, P.C. -a 520 Fellowship Road C306 ?°I Mount Laurel, NJ 08054 C a r? C-) - n c zC D om D ? N You are hereby notified to plead to the enclosed Preliminary Objections within twenty (20) days from the date of service hereof or a default judgment may be entered against you. Respectfully Submitted,/) Date: 1d --aq -- /p Michael J. PykUh, squire I.D. # 58851 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendant, Jennifer A. Kimmel Michael J. Pykosh, Esquire ID # 58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone - (717) 975-9446 Fax - (717) 975-2309 mpykosh&dplglaw,c Attorney for Defendant DISCOVER BANK, : COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. No: 10-7530- CIVIL TERM JENNIFER A. KIMMEL, Civil Action - Law Defendant DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes the Defendant, Jennifer A. Kimmel, by and through her attorneys Dethlefs-Pykosh Law Group, LLC, by Michael J. Pykosh, Esquire, who files her Preliminary Objections to the Plaintiffs Complaint, and avers as follows: 1. Plaintiff filed suit against Defendant alleging that Defendant owes money to Plaintiff arising out of an account issued by Discover Bank. Comp. ¶ 1 and 3. 2. The Complaint was filed on December 6, 2010. First Preliminary Objection- Pa. R.C.P. 1028(a)(2)- Failure to conform to rule of court (failure to state whether agreements is oral or written, state its terms, and/or attach written contract upon which the claim is based) 3. The Complaint avers the existence of some type of contract between the parties, referred to as the "account." 4. Pursuant to Pa. R.C.P. 1019(h), where a claim asserted is based upon an agreement, the pleading must state whether the agreement is oral or written. 5. The Complaint does not indicate whether the agreement is oral or written. 6. Pursuant to Pa. R.C.P. 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. More specifically, Plaintiff has failed to attach the original Loan/Credit Agreement signed and dated, including both original and amended terms and conditions applicable to the credit card agreement. Asset Acceptance, LLC v Margaret Madden Order dated March 18, 2009, No. 2912 of 2008 GD (Fayette County 2009) citing Atlantic Credit & Finance, Inc. v Guiliana, 829 A.2d 340 (Pa. Super. 2003). Plaintiff has also failed to attach "other periodic mailings detailing changes to the terms of the contract Remit Corporation v Miller, 5 Pa. D&C 5th 43, 45 (Centre Cty., 2008) 7. 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. Second Preliminary Objection- Pa. R.C.P. 1028(a)(2)- Failure to conform to rule of court (Improper Verification) 8. Pa. R.C.P. 1024 required 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. 1024(c)(1) and (2). 9. The Complaint is verified by counsel of record for the Plaintiff, and not an employee or other agent of the Plaintiff. 10. 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. 1024(c). Third Preliminary Objection- Pa. R.C.P. No. 1028(a)(4)- Demurrer 11. The Plaintiff has failed to allege facts sufficient to maintain a cause of action for Breach of Contract. Fourth Preliminary Objection- Pa. R.C.P. No. 1028(a)(3) 12. The Complaint contains only a general assertion of the amount the Plaintiff claims is owed by the Defendant. It provided 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. 13. 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. 14. By not including the requisite detail of the account, the Complaint fails to conform to an express rule of Court. WHEREFORE, the Defendant respectfully requests that her Preliminary Objections be sustained, and that Plaintiff's Complaint be dismissed with prejudice. Respectfully Submitt , Date: 12.- 2-1-10 Michael J. cosh Es e I.D. # 58851 2132 Market Street Camp Hill, Pennsylvania 17011 (717)975-9446 DISCOVER BANK, : COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. No: 10-7530- CIVIL TERM JENNIFER A. KIMMEL, Civil Action - Law Defendant CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Defendant, Jennifer A. Kimmel's, Preliminary Objections to Plaintiffs Complaint, was hereby served by depositing the same within the custody of the United States Postal Service, First Class, postage prepaid, addressed as follows: Discover Bank c/o David J. Apothaker, Esquire Apothaker and Associates, P.C. 520 Fellowship Road C306 Mount Laurel, NJ 08054 Date Respectfu4Submitte Michael J. squire I.D. # 58851 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendant VERIFICATION I, Jennifer A. Kimmel, hereby verify that the statements of fact made in the foregoing documents are true and correct to the best of my personal knowledge, information and belief. I understand that any false statements therein are subject to the criminal penalties contained in 18 Pa C. S. Section 4904, relating to unsworn falsification to authorities. Date: Id2 -?2,9_Lc, Je 4ififer A. Kimmel SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson FILE _0 F rIC`P Sheriff -1E 0 Ti Jody S Smith w Chief Deputy 2f46I JAN -7 PM 12: 41 Richard W Stewart F.,oUl , ; Solicitor JMSERL t _ ,,; i PEN0SY1 VANH % Discover Bank vs. Case Number Jennifer A. Kimmel 2010-7530 SHERIFF'S RETURN OF SERVICE 12/29/2010 11:57 AM - Sheldon Marshall, Deputy Sheriff, who being duly sworn according to law, states that on December 29, 2010 at 1157 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Jennifer A. Kimmel, by making known unto herself personally, at 1107 Bridge Street, New Cumberland, Pennsylvania, Cumberland County, Pennsylvania 17070 its contents and at the same time handing to her personally the said true and correct copy o the a e. SHELDON MARS ALL, DEPUTY SHERIFF COST: $73.90 January 04, 2011 SO ANSWERS, RONNY R ANDERSON, SHERIFF Our File No.: 295682 APOTHAKER & ASSOCIATES, P.C. jp3Y: David J. Apothaker, Esquire Attorney I.D.# 38423 520 Fellowship Road C306 Mount Laurel, NJ 08054 (800) 672-0215 Attorney for Plaintiff DISCOVER BANK COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaint?iff, VS. JENNIFER A KIMMEL NO. 2010-7530 D TO THE PROTHONOTARY: Kindly dismiss this ac?ion without prejudice. UT APOTHAKER & ASSOCIATES, P.C. Attorneys for Plaintiff A Low Firm Engaged in Debt Collection By Dated: 3/3/2011 David J. )?pothaker, Esquire rn M = r :;a ? =? -o C:)?ra =CD co