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Home My WebLink About04-3892 BURTON NEIL & ASSOCIATES, P.e. By: Burton Neil, Esquire Identification No. 11348 1060 Andrew Drive, Suite 170 West Chester, PA 19380 610.696.2120 Attorney for Plaintiff CITIBANK (SOUTH DAKOTA) N.A. 701 East 60th Street North Sioux Falls, South Dakota Plaintiff : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 64- ~ ~q )-.. ~ ROBERT HOWELL 216 7th Street New Cumberland, PA 17070-1921 Defendant : CIVIL ACTION - LAW COMPLAINT 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 (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 claim 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 ALA WYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. 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. LAWYER REFERENCE AND INFORMATION SERVICE Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 800-990-9108 8.2869 BURTON NEIL & ASSOCIATES, P.C. By: Burton Neil, Esquire Identification No. 11348 1060 Andrew Drive, Suite 170 West Chester, PA 19380 610-696.2120 Attorney for Plaintiff cnmANK (SOUTH DAKOTA) N.A. 701 East 60th Street North Sioux Falls, South Dakota Plaintiff : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. ROBERT HOWELL 216 7th Street New Cumberland, PA 17070.1921 Defendant NO. : CIVIL ACTION. LAW Complaint 1. The plaintiff is Citibank (South Dakota) N.A., with place of business located at 701 East 60th Street North, Sioux Falls, South Dakota. 2. The defendant is ROBERT HOWELL, who resides at 216 7th Street, New Cumberland, CUMBERLAND County, Pennsylvania. 3. Plaintiff, a national banking association, engages in various types of banking business including consumer lending through the issuance of credit cards. 4. Plaintiff furnished consumer credit to the defendant by means of a credit card with account number 4128002170471226 hereinafter referred to as the credit card account. S. Plaintiff maintained an accurate and running record of all debits and credits to the credit card account in its books of account. 6. Plaintiff mailed defendant a written statement each month which accurately stated the debits and credits to the credit card account for the prior billing period. 7. Defendant received the monthly statements from plaintiff for the credit card account including the statement attached hereto as Exhibit A statement without protest, dispute or objection. 8. Defendant in not protesting, disputing or objecting to the statements including the Exhibit A statement thereby assented and agreed to the correctness of the balance due on the credit card account so as to constitute an account stated. 9. The amount due plaintiff on the account stated, less credits, if any issued subsequent to the Exhibit A statement, is $7,739.32. Wherefore, plaintiff demands judgment against defendant for the sum of $7,739.32, and the costs of this action. BURTON N;Y& ASSOCIATES, P.C. By: ~ _~.. '. -.... Burton Neil, squire Attorney for laintiff In making this communication, we advise our firm is a debt collector. 11{ZB{03 :MMo~::,,~:::m $7739.7B ~JlllIMli.1l_ $9999.99 Iliil:ljJijillilllll!! SITE:KC.CL TM: CL- 6300 lZ{02{03 ACID:KCB9Z90 19:02:59: RDBERT HOWELL ATTNY ACCOUNT.CODE=FN34 NEW CUMBERLAND 17070 -1921000 P.O. BOX BlOZ S HACKENSACK. NJ 07606-BI02 PA Cltl" Driver's EdQe" Card Charter Rebates Account NumlMr 4128 0021 1041 1226 'ay...t .Wlt De r.c:.tv" .y 1:00 ,. local ltc.ment/CIoIIOQ DMe ToteI C_1t LI.. 11{04{2003 $7940 For CUItomtt .tI'VIe.. ctI or writ. 1-800-92S'8871 IIIIt Date Po.t DIU ..,...._.......... t 1.. on l1/iIIIZOOJ Ani"" Credit Lilli CIMAdv8rceLlmlt $0 $310 ~~M.r.:r pal Due $0.08 $2879.00 Attlllty sa.. t..t 1tMII.,...t 'e ,...~........ .. .................. ..."'-.....,....... 80X 6500 SIOUX FALLS, SD 57U7 ,bdeble C.n LImit $0 J:I~^t.. $161. 00 New ...nee $7739.78 Mlntmum A"*Id O&ae $7739.78 _nt Help is availablel Plea,e call the toll-free number shown above to learn about our ,pectal poy..nt options. Call Manday - Frld.Y. 7 .. to 9 p.. ar Slturday, 8 .m to 5 p., Central Ti~. Please 91ye us tfte appartunlty to .sslst yau. Our records sho. hOMe phone 717-774-8391 and buslneSt phene 717-233-8461. Please update abeye coupon , incorrect. A..,....t SUm....., PURCHASES ADYANCES TOTAL ~revloUl 8elance $7.719.78 0.00 $1.7 9.78 (+) Purch... , Advances S.OO 0.00 .00 (-) Payments , Crodlts fo.OO 0.00 0.00 (+1 FINANCE CHARGE fO.oo 0.00 0.00 (.) NtW Blltnet $7.719.78 0.00 $1.79.78 Rat. Summery PlJRCHASE5 Standard Purch ADVANCES Standard Adv e.l.net Subject to FlnlnCI ChlrOI PerIodic Rlt, Din Thl. BllllnQ ~,Jod: 29 Nominel ANNUAL APR PERCENTAGE RATE $0.00 $0.00 0.OS42S''(0) 0.OS~2S"(0) 19.800" 19.800" 19.800" 19.800" SEID P'Y'[ITS TO: '3' ~L[Ast RE'ER TO TNE REYEIIE Slot or Tit ORIGINAL STATEMEIT rOI ,.,IlIT .ltol.ATIOI. Met. ch<<lror PMftI'f' 0",... ~"1" U.S. dollars ona U.s..llanlrtoCIII C.rd.. Inc"'. account numwon check or IftOMV ordtr. NO WIlli ,Ie.... EXHIBIT A Jun,29, 2004 8:52AM 610-696-4111 Olin Neil Haltrecnt No.129: P,4 Veriticadon I, Susan Carey verify that I am an attorney management specialist for Citibank (South Dakota). N.A. and Citicorp Credit Services, Inc., wholly owned subsidiaries ofCitigroup, the within Plaintiff and am authorized to make this verification on its behalf. The facts in the foregoing pleading are true and correct to the best of my knowledge, information and belief. I understand that the statements made herein are subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to the authorities. Date: (.12 I ;;>ctlO I ~~ Susan Carey Robert Howell 4128002170471226 ~q: ---.., ~ ~ o (' z; OQ ~ ~0 p=:;:. cJ~ V'-, " <---5" ~ <?'J/ '-^' c- ,~ -". "., .r>p). r.~l (.......... ~2 --1'-~ ._~ -~-n I Cl ...L-. C:) c.~:'; CITIBANK (SOUTH DAKOTA) NA, PLAINTIFF IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. ROBERT HOWELL, DEFENDANT NO. 04 - 3892 CIVIL TERM CIVIL ACTION - LAW WRY TRIAL DEMANDED DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT TO: Citibank (South Dakota) NA c/o Burton Neil, Esquire Burton Neil & Associates, P.C. Suite 170 1060 Andrew Drive West Chester, PA 19380 NOTICE TO PLEAD YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED PRELIMINARY OBJECTIONS WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A WDGMENT MAY BE ENTERED AGAINST YOU. MOTION TO STRIKE COMPLAINT DUE TO PENDENCY OF PRIOR ACTION IN ACCORDANCE WITH PA. R.C.P. 1028 (a)(6) I. On April 15, 2003 Plaintiff commenced a civil action to 03 - 1723 against the same Defendant in Cumberland County. 2. On April 23, 2003 Defendant's counsel accepted servi,:;e of the civil action at the Cumberland County Sheriffs Office. 3. On May 13,2003 Defendant filed Preliminary Objections (attached hereto as Exhibit "A") endorsed with a Notice to Plead and those objections w'~re served upon Plaintiff's counsel on May 9, 2003 by postage prepaid, first class United States Mail as shown on a U.S.P.S. Form 3817 attached to the last page of Exhibit "A". 4. Approximately 7'12 months after filing ofthe Preliminary Objections Plaintiff filed an Amended Complaint on December 22, 2003 with the Prothonotary - a delay of 223 days. 5. On January 6, 2004 Defendant filed Preliminary Objections to Plaintiff's Amended Complaint citing Pa. R.C.P. 1026 (a) which requires "everypleading subsequent to the complaint shall be filed within twenty days after service of the preceding pleading... " 6. On January 21, 2004 Plaintiff served an Answer to Preliminary Objections raising disputed facts. In this Answer Plaintiff admitted that it learned of the original Preliminary Objections on June 12,2003 but took no action to file an Amended Complaint or answer to the original preliminary objections until December 22, 2003 - a period in excess of 192 days (6'12 months). 7. On February 11,2004 Defendant filed a Motion to Strike Plaintiff's Answer to Preliminary Objections. A true and correct copy is attached hereto as Exhibit "B" . 8. On February 10, 2004 Plaintiff's counsel was mailed a letter attached as Exhibit "C-I" which indicated that depositions on disputed facts would need to be scheduled on the Preliminary Objections regarding the 223 day delay in filing the Ammded Complaint. See Exhibit "C-2" which is U.S.P.S. Form 3817 showing service on February 10,2004. 9. Instead of scheduling depositions Plaintiff filed a Praecipe to Discontinue the civil action on April 14, 2004. 10. Under the contract between the parties, Citibank agre.:d: "If we {Citibankj sue to collect and you win, we will pay your reasonable legal fees and court costs." See Exhibit "D". 2 II. On August 6, 2004 Plaintiff commenced a second civil action against the same Defendant to Docket Number 04 - 3892 raising similar claims in the civil action docketed to 03 - 1723. 12. Plaintiff discontinued the 2003 action in an attempt to evade a judgment which would result in their payment of Defendant's reasonable legal fees and court costs because its untimely Amended Complaint was filed 223 days after service of Preliminary Objections. 13. Defendant has incurred legal fees and court costs in de:fending against the 2003 civil action. 14. Plaintiff has no reasonable basis for the extended delay of approximately seven and a half (7V,) months in serving its Amended Complaint and Defendant will be prejudiced in defending against the same lawsuit filed four months after the Plaintiff discontinued the 2003 lawsuit. 15. Plaintiffs excuse that it did not know of either the filing of the Preliminary Objections on May 13,2003 or Defendant's counsel's acceptance of service on April 23, 2003 is unsupported in the record since the Sheriff's Return in the 2003 case will clearly identify the date Defendant's counsel accepted service of the Complaint. The docket will clearly show the filing of Preliminary Objections on May 13,2004. By Plaintiff's own admission it knew these two facts by June 12,2003 - almost 6V, months before it filed its Amended Complaint on December 22,2003. 3 Legal Authority Supporting Defendant's Preliminary Objections 16. Plaintiff's Amended Complaint in the 2003 case should be stricken in accordance with the Pennsylvania Supreme Court's holding in Peters Creek Sanitary Authority v. Welch, 545 Pa. 309,681 A.2d 167 (1996) which states that a party who files Ii late pleading must show just cause for the delay. Merely filing a new lawsuit in 2004 to avoid dismissal ofthe 2003 civil action is prejudicial to the Defendant. 17. Pennsylvania Rule of Civil Procedure 229 (c) provides: "The court, upon petition and after notice, may strike off a discontinuance in order to protest the rights of any party from unreasonable inconvenience, vexation, harassment, expense, or prejudice. " 18. In this case, the Plaintiff's original action in 2003 should be dismissed because its Amended Complaint was filed 7V, months after the filing and service: of Preliminary Objections. 19. In this case, Defendant is entitled to an award of his reasonable legal fees and court costs incurred in defending against the 2003 civil action under the express terms of the parties' written agreement attached as Exhibit "D" . 20. Aside from avoiding a dismissal of the 2003 civil action the Praecipe to Discontinue filed April 12, 2004 serves no other purpose. 21. A Petition to Strike the discontinuance will be filed within the next few days once Plaintiff has the opportunity to concur with the Petition under the Local Rules. 4 Respectfully submitted, BY: f S en Howell, Esq 19 Bridge Street New Cumberland, P A 17070 (717) 770-1277 Supreme Court I.D. 62063 Attorney for Defendant Certificate of Service I hereby certify that on the date set forth below a true and con:ect copy of the foregoing document was served upon all counsel of record via postage prepaid, first class United States Mail addressed as follows: Burton Neil, Esquire Burton Neil & Associates, P.C. Suite 170, 1060 Andrew Drive West Chester, PA 19380 Date: August 31, 2004 5 f,xn,bJ A I ~ .~ ~~ .-- CITIBANK (SOUTH DAKOTA) N.A., PLAINTIFF IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. ROBERT HOWELL, DEFENDANT NO. 03 - 1723 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT TO: Citibank (South Dakota) N.A. c/o Burton Neil, Esquire Burton Neil & Associates, P.C. 26 South Church Street West Chester, PA 19382 NOTICE TO PLEAD YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED PRELIMINARY OBJECTIONS WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. MOTION TO STRIKE PARAGRAPH 8 OF THE COMPLAINT I. Plaintiff's Complaint seeks attorneys' fees of$1,470.56 in ~8. 2. The Contract attached to the Complaint does not bear Defendant's signature nor does it permit the imposition of a flat fee commission of approximate:ly 20% as set forth in ~8 of the Complaint. 3. Under the terms of the Contract attached as Exhibit "A" attorneys fees are to be calculated at the conclusion of the case and do not permit the imposition of a flat commission rate of approximately 20%. ,. '--..,..r "--" WHEREFORE, pursuant to Pa. R.C.P. 1028(a)(2) (a)(4) Plaintiff's ~8 of the Complaint should be stricken for pleading an amount of legal fees when the contract requires this to be calculated at the conclusion of the matter; or in the alternative, pleading an amount of attorneys fees based upon a 20% flat commission. Respectfully submitted, BY: .~// even Howell, Esquire 619 Bridge Street New Cumberland, P A 17070 (717) 770-1277 Supreme Court I.D. 62063 Attorney for Defendant Certificate of Service I hereby certify that on the date set forth below a true and correct copy of the foregoing document was served upon all counsel of record via postage prepaid, first class United States Mail addressed as follows: Burton Neil, Esquire Burton Neil & Associates, P.C. 26 South Church Street West Chester, PA 19382 ---------....--.-.- Date: J I~!o 3 U S POSTAL SERVICE CERTIFICATE OF MAILING MAY BE US.ED. FOR DOMESTIC AND INTERNATIONAL MAIL, DOES NOT.. ....... ~ <I PROVIDE F9-B INSURANCE _POSTMASTER -- ~ ~ S H 11 /'~' - 0 Receive< A~:;:Y :X~:aw ~~;'~~~T~ :':: ~\ 619 Bridge Street :s:( \',\\ \~' New Cumberland, PA 17070 ~. ';'i"j )'t) ~;'''l''''''''1'',1..".,,~ z .. ~":: ~::i' .. "'..~. <ri<& ~ ~~ .l... tfic..c -I ~or- (/) ~" "> b....~ C-\'\u./e\" S~~I !iO:;; ~ ~ \.M=>'i of- C.I.._-HI- ~ ~ I G~8' ~ jS / PS Form 3817. Mar. 1989 f),,1,J B ~jj, CITlBANK (SOUTH DAKOTA) N.A., PLAINTIFF IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ROBERT HOWELL, DEFENDANT NO. 03 - 1723 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED V. DEFENDANT'S PRELIMINARY OBJE,CTION TO PLAINTIFF'S ANSWER TO PRELIMINARY OBJECTIONS TO: () ~i ~c i~;::J Sgl~-: >':~ l ~9.,L:' si ~;:: -u ,::'=c) ~ NOTICE TO PLEAD )> C: N ~ C:;, YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED' PRELIMINARY OBJECTIONS WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. Citibank (South Dakota) N.A. c/o Burton Neil, Esquire Burton Neil & Associates, P.C. 26 South Church Street West Chester, P A 19382 ..., = = ... .." rl"'l crJ o -n .-{ :C-rl (lli';":;:; -ot-n :uo aL :~~ ( ,~,,_. ..~C) 1~O',rn '-~ -< '1;~' ~\) -< MOTION TO STRIKE ANSWER TO PRELIMINARY OBJECTIONS 1. Plaintiff claims the Complaint was "served on the d(:fendant on or about April 23, 2003" and that it did not know the Defendant was represented by counsel until July 23, 2003. 2. In truth, the Complaint was served upon Steven Howell, Esquire, who appeared at the Cumberland County Sheriffs Office on Apri123, 2003 to accept service on behalf of the Defendant. This information would be disclosed upon the Sheriffs Return of Service provided to Plaintiffs counsel. 3. Upon receipt of the Sheriffs Return of Service the Plaintiff knew Defendant was represented by counsel. 4. Plaintiff claims to have served a Notice ofIntentioll to Enter Judgment by Default on May 16, 2003 on the Defendant. Plaintiff does not dispute that its counsel did not serve this Notice upon the Defendant's counsel of record who accepted service of the Complaint on A'pril 23,2003. 5. Plaintiff claims to have attempted to enter a default judgment on or about June 12, 2003. Once again, Plaintiff does not serve the Defendant's counsd with this Praecipe. - j 6. Plaintiff claims its failure to respond for seven (7) months to the Preliminary Objections filed of record on Tuesday, May 13,2003 and mailed on ]r'riday, May 9, 2003 with a U.S. Postal Service Certificate of Mailing (see Exhibit "A") was because it never knew: (a) Defendant had counsel until July 23, 2003; and (b) never received the Preliminary Objections which the United States Postal Service certifies were mailed on May 9, 2003. 7. Plaintiff's Answer to Preliminary Objections fails to c:onform to the Rules of Court in that it does not correctly identify the person who accepted service of the Complaint on April 23, 2003. Defendant's counsel accepted service before the Sheriff of Cumberland County and any assertions from Plaintiff that the Defendant was personally served are false. Any assertions by Plaintiff that it did not know of the existence of Steven Howell, Esquire and his representation of the Defendant until July 23, 2003 are similarly false since his identity would have been disclosed on the Return of Service. 8. In accordance with Pa. R.C.P. 1023.1 and 1023.2 thl: Plaintiff is required to amend its Answer to Preliminary Objections to correctly reflect: (a) the information set forth on the Return of Service; and (b) that Plaintiff chose not to serve Defl:ndant's counsel with the , Notice ofIntention to Enter Jud~ent by Default on May 16,2003 or the Praecipe to Enter Default Judgment on June 12,2003 despite Plaintiff's counsel's receipt of the Return of Service. WHEREFORE, pursuant to Pa. R.C.P. 1028(a)(2) Plaintiff's Answer to Preliminary Objections s~?uld be stricken. Certificate of Service I hereby certify that on the date set forth below a true and COITi~ct copy of the foregoing document was served upon all counsel of record via postage prepaid, first class United States Mail addressed as follows: Burton Neil, Esquire Burton Neil & Associates, P.C. 26 South Church Street West Chester, PA 19382 BY: S en Howell, Esquire 19 Bridge Strel~t New Cumberland, P A 17070 (717) 770-1277 Supreme Court l.D. 62063 Attorney for Defendant Date: February 10,2004 C xhd)/'f C i C"l dl ~ clteven :HoWelt Attorney at Law 619 Bridge Street. New cumberland, pennsylvania 17070. Telephone 717-nO-1277 . Fax 717.nO.1278 February 10,2004 Burton Neil, Esquire Burton Neil & Associates, P.C. 26 South Church Street West Chester, PA 19382 RE: Citibank v. Robert Howell, No. 03 - 1723 (Cumberland County - Pennsylvania) Dear Burton: Enclosed is a Preliminary Objection to your Answer to Preliminary Objections. It seems to me that your office is compounding its errors. We know the following to be true: I. My office filed of record Preliminary Objections on May 13,2003. 2. My office mailed to your office the Preliminary O~jections on May 9, 2003 as set forth on the U.S. Postal Service's Certificate of Mailing. 3. I - not the Defendant - accepted service as his counsel from the Sheriff of Cumberland County on April 23, 2003. 4. Your office chose to ignore the Preliminary Objections for seven (7) months. 5. Your office chose to ignore the Sheriffs Return of Service which would clearly identify myself as the Defendant's counsel of record when allegedly mailing to the Defendant the Ten Day Notice or Praecipe to Take a Default Judgment. If these facts are not acceptable to you then we will need to schedule Depositions on facts in dispute. SH/bth - ---_____n___________ _____ - ---- ---- U.S. POSTAL SERVICE MAy BE U.<> PROVIDE CERTIFICATI: OF MAILING ~ ~ Recelv Steven Howell Attorn(T At Law 619 Bridge Street New Cumberland, PA 17070 PS Form 3817. 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"':;~C' <i=.o ~-=?'= of= ~~ ""- =. '!~ "'~~ ",,'~ C.~.'B=fi "'. .. ; ~_' ~~__, ;Z;:C~~~~""""'~-=--"'-:!.;:;::~~_-:T:_=~ ..~ ~M!~~~viC:~_-:'::'~.:TI..-=---=~~i5E:~. .&:;::= ::-=:-".....'--=~==-~--==-_~_...;;_.:....__..::. Telephone A-IorrimIUg Fittt rime to riri::>.e = ~r iUO~ eJ~~e c:tils ~~"rciill.g !GUT ~Ol.:!l[ ~dl. !!S ra ~~ ril~q""j;'Fofon;:-se.....-i/2. SHERIFF'S RETURN - REGULAR CASE NO: 2004-03892 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CITIBANK SOUTH DAKOTA NA VS HOWELL ROBERT CPL. MICHAEL BARRICK , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within NOTICE was served upon HOWELL ROBERT the DEFENDANT , at 0009:33 HOURS, on the 13th day of August , 2004 at 619 BRIDGE ST NEW CUMBERLAND, FA 17070 STEVEN HOWELL (ATTORNEY) by handing to a true and attested copy of NOTICE together with COMPLAINT and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18.00 15.54 .00 10.00 .00 43.54 So Answers: r''''X,C: _IK ~~ R. Thomas Kline ? 08/16/2004 BURTON NEIL & ASSOCIATES Sworn and Subscribed to before By: _-#~ Deputy Sh riff me this /# day of _1ll(1""f.J~~ dlJJrj'i A.D. r] ~ Q. ~ ILPpi '-- ~otlionotary ; BURTON NEIL & ASSOCIATES, P.C. By: Edward J. O'Brien, Esquire Identification No. 32985 1060 Andrew Drive Suite 170 West Chester, P A 19380 610-696-2120 Attornev for Plaintiff CITIBANK (SOUTH DAKOTA) N.A. : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYL VANIA v. ROBERT HOWELL : NO. 04-3892 Civil Defendant : CIVIL ACTION - LAW ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of plaintiff, CITIBANK (SOUTH DAKOTA) N.A., in connection with the above matter. BURTON NEIL & ASSOCIATES, P.C. f:n, /J f\ BY: ~ U Edward J. O'B n, Esquire Attorney for Plaintiff The law firm of Burton Neil & Associates is a debt collector. o c-: ,....~., = ~ (/) roo., -u () -n N o C N C'" BURTON NEIL & ASSOCIATES, P.C. By: Edward J. O'Brien, Esquire Identification No. 32985 1060 Andrew Drive Suite 170 West Chester, PA 19380 610-696-2120 Attornev for Plaintiff CITIBANK (SOUTH DAKOTA) N.A. IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 04-3892 Civil ROBERT HOWELL Defendant CIVIL ACTION - LAW Plaintiffs Answer to Defendant's Preliminary Obiections Plaintiff, Citibank (South Dakota) N.A., by its counsel Burton Neil & Associates, P.C., hereby answers Defendant's Preliminary Objections, or so much then~of as is relevant, as follows: 1. Admitted. 2. Admitted. 3. Denied as stated. Defendant's Exhibit A is a docum,ent that speaks for itself. 4. Denied as stated. Attached hereto as Exhibit 1 and incorporated herein by reference a copy of Plaintiffs answer to Defendant's January S, 2004 preliminary objections. Paragraphs 2 through 4 of Exhibit 1 are incorporated herein by reference. Plaintiff s counsel never received the defendant's Exhibit A objections until he had them cJpied from the Court file. 5. Denied. Defendant's January 6, 2004 preliminary objection is a document which speaks for itself. 6. Denied as stated for the reascns set forth in Exhibit 1. 7. and 8. Denied as stated. Defendant's Exhibits B and C-1 are documents which speak for themselves. , 9. Admitted in part and denied in part. Plaintiff had no obligation to schedule depositions. It is admitted that the 2003 action was discontinued, is therefore no longer pending, therefore there are not , two actions against which defendant must defend, therefore no basis to object regarding the pendency of a prior action. 10. Denied as stated. Exhibit D is a document that speaks for itself. 11. Denied. Plaintiffs complaint in this action, the only one pending against defendant, is a document that speaks for itself. By way of further response the: complaint in this action asserts rights against defendant on the basis of an account stated; the 2003 action asserted rights against defendant based on breach of contract. 12. Denied as a conclusion of law to which no further r1esponse is required. 13. Denied. After reasonable investigation plaintiff is without knowledge or information sufficient to form a belief as to the truth of these allegations and the same are deemed denied. 14. through 20. Denied as conclusions oflaw to which no further response is required. 21. Denied. After reasonable investigation plaintiff is without knowledge or information sufficient to form a belief as to the truth of these allegations and the same are deemed denied. WHEREFORE plaintiff moves the Court deny and dismiss defendant's preliminary objections. BURTON NEIL & ASSOCIATES, P.C. BY~~ 6/~ Edward J. O'Brien, squire Attorney for Plaintiff NOTICE: Burton Neil & Associates, P.C. is a debt collector. ~ )~li\ BURTON NEIL & ASSOCIATES, P.C. Burton Neil, Esquire, Id. no. 11348 26 S. Church Street, West Chester, P A 19382 610-692-2120 Attornev for Plaintiff crrmANK (SOUTH DAKOTA) N.A. IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLV ANlA v. NO. 03-1723 ROBERT HOWELL Defendant: CIVIL ACTION - LAW Answer to Preliminary Objections 1. Admitted. 2. Denied. It is denied that defendant was served with the preliminary objections. Although defendant attached Exhibit A "Certificate of Mailing" as evidence he mailed service of the preliminary objections, plaintiff avers that the preliminary objcctions were not in fact received by its counsel. Plaintiffs complaint was filed on Aplri115, 2003 and it was served on the defendant on or about April 23, 2003. A notice of intention to enter judgment by default was sent to the defendant on May 16, 2003. Subsequently, plaintiff filed for default judgment. On June 12,2003, plaintiffs counsel received the default judgment which was returned by the prothonotary with a note indicating that preliminary objections were filed by the defendant. This was plaintiffs first notice of the objections. On July 23, 200:1, defendant contacted the office of plaintiff's counsel to advise that he was represented by his brother and would arrange for his brother to contact the office of plaintiff's counsel. The name of his brother was not stated. There was no subsequent contact from the brother who is assumed to be attorney Howell. On November 7, 2003, after receiving no contact and still having not been served with the EXHIBIT preliminary objections, plaintiffs counsel sent a request to the l~rothonotary for a copy of the preliminary objections which said request was accompanied by a $1.00 fee in payment of the same. On November 25, 2003, the preliminary objections were received from the prothonotary. On or about December 9, 2003, the amended complaint was filed and it was served on December 17,2003. 3. Denied as stated. Plaintiff was under no obligation tl) respond to the preliminary objections because the same had never been served on its counsel. It is admitted, that plaintiff did file an amended complaint with the filing taking place within 20 days after plaintiffs counsel received the copy of the preliminary objections from the prothl)notary. 4. Admitted in part. Denied in part. It is admitted that the objections were endorsed with a notice to plead. It is denied, as aforesaid, that said objections were ever served on plaintiff. 5. Admitted that defendant's recitation of Rule 1026(u) is correct. 6. Denied. The allegation contains no facts to which a responsive pleading is required. Rather, it is a conclusion of law. 7. Denied. To the contrary, there is an extremely reasonable explanation, that is, plaintiff was never served with the preliminary objections. 8. Denied. The allegation contains no facts to which !~ responsive pleading is required. Rather. it is a conclusion oflaw. 9. Admitted. 10. Admitted. 11. Denied in part. Admitted in part. The obligation tmder the contract (terms and conditions) is to pay plaintiffs attorney's fees. Plaintiff averred its fees were computed on a contingent basis of 19%. Plaintiff admits that its claim for fellS as well as it claim for the principal balance owed by defendant for his use of the credit caro will and should be determined at the conclusion ofthe case. Wherefore, plaintiff prays your Honorable Court will dismiss the preliminary objections. Burton Nl:il & Associates, P.C. Burton Nc:il Attorney for Plaintiff In making this communication, we advise our firm is a debt collector. VerlficatioD I, Burton Neil, Esquire, verify that I am the attorney fol' plaintiff Citibank (South Dakota), N.A. and am authorized to make this verification on its behalf. I am personally familiar within the allegations of fact in the foregoing answer to preliminary objections while Citibank (South Dakota) N.A. is not and that the facts in the foregoing pleading are true and correct to the best of my knowledge, information and belief. I understand that the statements made herein are subject to the penalties of 18 Pa. C.S. Section 4904, relating to unswom falsification to the authorities. Date: Burton Neil BURTON NEIL & ASSOCIATES, P.C. By: Edward J. O'Brien, Esquire Identification No. 32985 1060 Andrew Drive Suite 170 West Chester, PA 19380 610-696-2120 Attornev for Plaintiff CITffiANK (SOUTH DAKOTA) N.A. IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 04-3892 Civil ROBERT HOWELL Defendant : CIVIL ACTION - LAW Certificate of Servicl~ Edward J. O'Brien, Esquire, hereby certifies that he is attorney for plaintiff Citibank (South Dakota) N.A., that he served a true and correct copy of plaintiff s Answer to Defendant's Preliminary Objections on the defendant's attorney of record by first class U.S. Mail, postage prepaid on the date set forth below at his address of record. Dated: q I l'l/oi- I I ~~J Edward 1. O'Brie:n, ~ NOTICE: Burton Neil & Associates, P.C. is a debt collector. VERIFICATION Edward J. O'Brien, Esquire, attorney for plaintiff, makes this statement on its behalf as to the truthfulness of the facts set forth in the foregoing Answers to Defendant's Preliminary Objection, subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Counsel, rather than an officer or other represenllative of plaintiff is verifying the foregoing Answer because plaintiff's officers and/or representatives are outside the jurisdiction of the court and the verification of none of them could be obtaiined within the time allowed for the filing of this pleading. Plaintiffs counsel is verifying plaintiffs Answer based upon his review of the documents in his file and the previously filed verifications of Burton Neil, Esquire, plaintiff's counsel of record who was unavailable verify this pleading. Dot, r; 7/ of Edward 1. O'Bri , Esquire r--.' ,.;~? c:..:',;o -'-- en C";j . ,) C) -T1 ,,~ C) ::~"'~ q f'''' ell BURTON NEIL & ASSOCIATES, P .C. Burton Neil, Esquire, Id. no. 11348 1060 Andrew Drive, Suite 170 West Chester, PA 19380 610-696-2120 Attornev for Plaintiff CITIBANK (SOUTH DAKOTA) N.A. Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. No. 04-3892 ROBERT HOWELL Defendant CIVIL ACTION - LAW PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. 1. Matter to be argued: Defendant's Preliminary Obiections and Plaintiff s Answer thereto 2. Identify counsel who will argue case: (a) for plaintiff: BURTON NEIL & ASSOCIATES, P.C. Burton Neil, Esquire ID# 11348 1060 Andrew Drive, Suite 170 West Chester, PA 19380 (b) for defendant: Steven Howell, Esquire 619 Bridge Street New Cumberland, P A 17070 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: August 24. 2005 ---"'" Burton Neil, Esquire Attorney for Plaintiff BURTON NEIL & ASSOCIATES, P.C. Burton Neil, Esquire, Id. no. 11348 1060 Andrew Drive, Suite 170 West Chester, PA 19380 610-696-2120 Attornev for Plaintiff CITIBANK (SOUTH DAKOTA) N.A. Plaintiff v. STEVEN HOWELL Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 04-3892 CIVIL ACTION - LAW Certificate of Servicll Burton Neil, Esquire, being duly sworn according to law, dl~poses and says that he is attorney for plaintiffCitibank (South Dakota) N.A., that he served a tru,e and correct copy of plaintiff's Praecipe for Listing Case for Argument on the attorney for the defendant by first class U.S. Mail, postage prepaid on the date set forth below. Dated: 1/~/~~ _._~ ---...",Ie:: - .' - /? \..- Burton Neil, Esquire (') f; vC-: 0;1': .,..-- t.) (n._ "7 ":' -< ...> = = en <-- c: (- ~ ~~ -om "JCJ ;.') 1-, ;:-l(:r ~c::'d C?<.") :;:";fT1 ::::., c- ~ N ~~ ::::.,,,, ...:I',. <? <-.) Cl CITIBANK (SOUTH DAKOTA) N.A., PLAINTIFF IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA VS. NO. 04-3892 CIVIL ROBERT HOWELL, DEFENDANT CIVIL ACTION - LAW NOTICE OF BANKRUPTCY FILING TO THE PROTHONOTARY AND INTERESTED PARTIES: Please take notice that on August 12, 2005 a Petition in Bankruptcy pursuant to Chapter 7 was filed in the Middle District of Pennsylvania to Case Number 1-05-05323. Any additional actions are a violation of the Automatic Stay provisions of the United States Bankruptcy Code. This matter is currently scheduled for oral argument on August 24, 2005. Respectfully submitted, By: Certificate of Service I hereby certify that on the date set forth below a true and correct copy of the foregoing documents was served by postage prepaid, first class United States Mail on all interested parties or counsel of record at the addresses set forth below. Burton Neil, Esquire Burton Neil & Associates, P.e. Suite 170 1060 Andrew Drive West Chester, PA 19380 Date: August 12,2005 a ~ ~.;..~, -'t.\\~>\ ,...\ ',--",F .c ~?-\..' tn<'~.~'- :L_, , c''-.... ~i:.(:.:'., ~'c:- ~ ~ Q. ~ 1.:Q ?-: i""~ ~ ~' ~ q,~ ...0 q~ -;:(.. .~ ~ ~ '? BURTON NEIL & ASSOCIATES, P.C. BY: Burton Neil, Esquire Identification No. 11348 1060 Andrew Drive, Suite 170 West Chester, PA 19380 610-696-2120 ATTORNEY FOR: Plaintiff CITIBANK SOUTH DAKOTA N.A. Plaintiff VS. ROBERT HOWELL Defendant TO THE PROTHONOTARY: : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 04-3892 civil : CIVIL ACTION - LAW PRAECIPE TO DISCONTINUE Kindly discontinue the above-captioned action without prejudice. BURTO~~ ASSOCIATES, P.C. ,~. Burton Neil, sqUlr Attorney for P1ainti f The law firm of Burton Neil & Associates is a debt collector. 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