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Home My WebLink About11-2498Our File No.: 298769' 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 PORTFOLIO RECOVERY ASSOCIATES, LLC 140 CORPORATE BOULEVARD NORFOLK, VA 23502 Plaintiff, VS. GLORIA J EDKIN 6405 GLENWOOD ST APT 6 MECHANICSBURG, PA 17050 Defendant. -ED -0FF11C .- P OTNONOTAR y 2011 FEB 2$ AM 11: 32 CUMBERLAND COUNTY PENNSYLVANIA COURT OF COMMON PLEAS CUMBERLAND COUNTY NO.: _ayg9, c(ri Tee 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 rt?1 n11.? a OwSaaLP T13 Cr*lBso$ Q--* 011-5 ft I Our File No.: 298769' 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 PORTFOLIO RECOVERY ASSOCIATES, LLC 140 CORPORATE BOULEVARD NORFOLK, VA 23502 Plaintiff, VS. GLORIA J EDKIN 6405 GLENWOOD ST APT 6 MECHANICSBURG, PA 17050 Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO.: CIVIL ACTION COMPLAINT FIRST COUNT 1. Plaintiff is PORTFOLIO RECOVERY ASSOCIATES, LLC, 140 CORPORATE BOULEVARD, NORFOLK, VA 23502. 2. Defendant(s) is/are GLORIA J EDKIN, an adult individual residing at 6405 GLENWOOD ST APT 6 MECHANICSBURG, PA 17050. 3. Plaintiff, PORTFOLIO RECOVERY ASSOCIATES, LLC, is the Assignee and Successor in Interest of Account # ending in 2783; and said account was issued to Defendant(s) by MBNABANK OF AMERICA, 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 $22,706.85. 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 $22,706.85 and requests this Court award costs to the extent permitted by applicable law. APOTHAKER & Attorney A Law Firm Eneai Dated: 2/23/2011 BY: IATES, P.C. $intiff Debt Collection David J. Apo' JJ aker, Esquire Our File No.: 298769 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 relating to yR!?worn falsification to authorities. David J. Apothaker, Esquire Attorney for Plaintiff DATE: 2/23/2011 PORTFOLIO RECOVERY ASSOCIATES, LLC GLORIA J EDKIN 6405 GLENWOOD ST APT 6 MECHANICSBURG, PA 17050 STATEMENT OF ACCOUNT Debtor's Name: GLORIA J EDKIN Account Number: ending in 2783 Original Creditor: MBNA/BANK OF AMERICA Balance Due: $22,706.85 Our File No.: 298769 EXHIBIT "A" PORTFOLIO RECOVERY ASSOCIATES, LLC 140 CORPORATE BOULEVARD NORFOLK, VA 23502 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL DIVISION Plaintiff V. NO.11- 2498 Civil Term Gloria J. Edkin 6405 Glenwood St., Apt 6 Mechanicsburg, PA 17050 Defendant CIVIL ACTION - LAW rq r rn yl.. ?? ? -urn ? ca r ro N O rZ <C-) = ? 5-n ZO 3 r c 4 --1 ;;0 NOTICE TO PLEAD You are hereby notified to file a written response to the enclosed Defendant's Preliminary Objections within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully submitted, By Gary L eyder, e Atto ey For Plaintiff Corporate Plaza, Suite 202 2040 Linglestown Road Harrisburg, PA 17110 (717) 439-3896 Dated: 3/22/2011 PORTFOLIO RECOVERY ASSOCIATES, LLC IN THE COURT OF COMMON PLEAS 140 CORPORATE BOULEVARD OF CUMBERLAND COUNTY, PA NORFOLK, VA 23502 CIVIL DIVISION Plaintiff V. NO. 11- 2498 Civil Term Gloria J. Edkin 6405 Glenwood St., Apt 6 Mechanicsburg, PA 17050 CIVIL ACTION - LAW Defendant DEFENDANT'S PRELIMINARY OBJECTIONS AND NOW comes the Defendant, Gloria J. Edkin, by her attorney, Gary L. Leyder, Esquire, and files the following preliminary objections and in support thereof avers the following: 1. Motion to Dismiss For Non-Compliance with Rule 1024 of the Pennsylvania Rules of Civil Procedure 1. Pennsylvania Rule of Civil Procedure 1024 requires that "[e]very pleading containing an averment of fact not appearing of record in the action or containing a denial of fact shall state that the averment or denial is true upon the signer's personal knowledge or information and belief and shall be verified." 2. The Plaintiff's Complaint contains a Verification signed by the attorney for the Plaintiff, but contains no signature of any person of authority with the plaintiff, Portfolio Recovery Associates, LLC, who would reasonably have personal knowledge, information, or belief regarding the specific averments contained in the complaint. 3. Rule 1024 (c) provides that "[t]he 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 can be obtained within the time allowed for filing the pleading." 4. Rule 1024(c) only provides an alternative for parties outside the jurisdiction where a signed Verification is not available "within the time allowed for filing the pleading 5. The action now before the court, was instituted with the filing and service of the Plaintiffs Complaint, and there appears to have been no time deadline which was controlling in this matter. 6. This action therefore could have been delayed until a proper Verification, by an appropriate party within the Plaintiff's organization, could be obtained. 7. Defendant believes, and therefore avers, that since there was no issue of time with the filing of this pleading by the Plaintiff, Pa.R.C.P. 1024(c) should not be applicable, and an actual Verification from an appropriate party should have been required with the original Complaint. WHEREFORE, Defendant respectfully requests that this action be dismissed for failure to comply with the requirements of Pa.R.C.P. 1024. II. Motion to Dismiss For Non-Compliance with Rules 1019(f), 1019(h), and 1019(1) of the Pennsylvania Rules of Civil Procedure 8. Paragraphs 1- 7 are incorporated herein by reference as though again set forth at length. 9. Averments contained in the Plaintiff's Complaint state that "Plaintiff, Portfolio Recovery Associates, LLC, is the Assignee and Successor in Interest of Account # ending in 2783; and said account was issued to Defendant(s) by MBNABANK OF AMERICA, the Original creditor." 10. The Plaintiff's Complaint therefore implies that an agreement or contract was reached between the Defendant and the Plaintiff, but the Plaintiff fails to state exactly when any such agreement was entered into, and fails to state whether any such agreement to accept the alleged account was oral or written. 11. Pennsylvania Rule of Civil Procedure 1019 (f) requires that "averments of time, place and items of special damage shall be specifically stated." 12. The Plaintiff's Complaint fails to give any reference of time with regard to any of the allegations contained in this complaint, and therefore the complaint fails to comply with rule 1019 (f). 13. Pennsylvania Rule of Civil Procedure 1019 (h) requires that "When any claim or defense is based upon an agreement, the pleading shall state specifically if the agreement is oral or written. 14. The Plaintiff's Complaint fails to give any indication of whether the said agreement was oral or written, and therefore fails to comply with rule 1019 (h). 15. Pennsylvania Rule of Civil Procedure 1019 (i) requires that "When any claim or defense is based upon a writing, the pleader shall attach a copy of the writing ..." 16. Although it is unclear from the Plaintiffs Complaint whether or not any said agreement was a written one; if the agreement was a written one, then the Plaintiff's failure to attach said agreement to the complaint was in noncompliance with rule 1019 (i). WHEREFORE, Defendant respectfully requests that this action be dismissed for failure to comply with the requirements of Rules 1019 (f), 1019(h), and 1019 (i) of the Pennsylvania Rules of Civil Procedure. III. Demurrer to Plaintiffs claims for lack of specificity, or in the alternative Motion for a More Specific Pleading 17. Paragraphs 1- 16 are incorporated herein by reference as though again set forth at length. 18. Plaintiff's Complaint states that the Plaintiff issued an account number to the Defendant, but fails to state how and when this alleged account was requested by Defendant, whether the defendant ever accepted and used the account, specifically what charges were made on this account, what the alleged balance consists of, and numerous other important facts. 19. The Plaintiff's Complaint fails to state facts constituting a cause of action against the Defendant, in that the facts so alleged do not demonstrate with any requisite degree of specificity the basis for any claim against the Defendant, nor does it provide enough information to determine if any appropriate defense such as statute of limitations may apply. 20. The Plaintiff's Complaint should be dismissed, but if this Honorable Court fails to do so, then in the alternative Defendant submits that the Plaintiff should be ordered to file a more specific pleading including specific dates of any agreement, specific dates, payee and amounts of any and all charges which are referred to as making up the alleged balance, attach a copy of all written documentation for any said agreement and any modification thereof if applicable, as well as any other specific information which would generally be required for a party to make an appropriate response. WHEREFORE, Plaintiff respectfully requests this Honorable Court to dismiss Plaintiff's Complaint for failure to state a cause of action with sufficient specificity upon which relief may be granted, or in the alternative, that this Honorable Court direct the Plaintiff to file a more specific pleading. Date: March 22, 2011 Gary L eyder, Ee uire Attorney I.D. No. 41680 Corporate Plaza, Suite 202 2040 Linglestown Road Harrisburg, PA 17110 (717)439-3896 VERIFICATION I, Gloria J. Edkin, do hereby swear or affirm that the facts set forth in the foregoing Plaintiffs Preliminary Objections to Plaintiff's Complaint are true and correct to the best of my knowledge, information, and belief. I understand that this verification is made subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. Witness: - 960, Glori. Edkin PORTFOLIO RECOVERY ASSOCIATES, LLC 140 CORPORATE BOULEVARD NORFOLK, VA 23502 Plaintiff V. Gloria J. Edkin 6405 Glenwood St., Apt 6 Mechanicsburg, PA 17050 Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL DIVISION NO.11- 2498 Civil Term CIVIL ACTION - LAW CERTIFICATE OF SERVICE AND NOW, this 22nd day of March, 2011, the undersigned, Gary L. Leyder, Esquire, Counsel for the Defendant, Gloria J. Edkin, hereby certifies that, service of a true and correct copy of the Defendant's Preliminary Objections was made upon the following person, the attorney for the Plaintiff, at the address indicated below by depositing the same in the United States Mail, by First Class Mail, postage prepaid: David J. Apothaker, Esquire Apothaker and Associates, PC 520 Fellowship Rd. C 306 Mount Laurel, NJ 08054 Dated: March 22, 2011 Respectfully submitted, 4omeyy eyd , squire forPlaintiff Corporate Plaza, Suite 202 2040 Linglestown Road Harrisburg, PA 17110