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HomeMy WebLinkAbout04-4053DICKINSON COLLEGE, Plaintiff V. HOWARD M. MILLER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW JURY TRIAL OF TWELVE DEMANDED 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 Plaintiffs. 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. 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 REDUCE FEE OR NO FEE: Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 Dated: o~ l lt~loq ~MAR~~LIAMS & OTTO By--quire I ID. Number 87326 ~ Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff DICKINSON COLLEGE, Plaintiff HOWARD M. MILLER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION-LAW JURY TRIAL OF TWELVE DEMANDED COMPLAINT AND NOW, comes Plaintiff Dickinson College by and through its attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and hereby avers as follows: 1. Plaintiff Dickinson College is a Pennsylvania educational institution and nonprofit corporation with its principal place of business at West Street, Post Office Box 1773, Carlisle, Cumberland County, Pennsylvania 17013. 2. Defendant Howard M. Miller is an adult individual with a last known address of 2 Iron Mill Garth, Cockeysville, Baltimore County, MD 21030-1386. 3. On or about August 26, 1987, Defendant entered into a Promissory Note with Plaintiff for the financing of $7,000.00, plus interest, for educational services and benefits to his daughter, Melissa Miller, at Plaintiff's institution. A copy of Note #1 is attached hereto as Exhibit "A." 4. The note grants Plaintiff reasonable collection and attorneys' fees which Plaintiff has calculated to be $1,050.00. 5. As of June 29, 2004, the principal and interest due and payable by Defendant to Plaintiff was $2,857.25, plus interest in the amount of $0.39 per day from June 29, 2004. 6. As of June 29,2004, the outstandingbalance of $2,857.25 represents the total and actual overdue value of the financing provided to Defendant under the note for which he has yet to pay. 7. Plaintiff fulfilled, performed and complied with all obligations and conditions of the note. 8. Defendant breached the expressed and implied obligations, conditions and terms of agreement of the note by failing to pay the amounts financed therein. WHEREFORE, Plaintiff demands judgment against Defendant, Howard M. Miller, in the amount of $2,857.25, plus interest in the amount of $0.39 per day from June 29, 2004, collection and attorneys' fees in the amount of $1,050.00 and costs of suit. Date: MARTSON DEAR~>~WILLIAMS & OTTO Davi~'~_'_Gall~ I.D. No. 87326 Ten East High Street Carlisle, PA 17013-3093 (717) 243-3341 Attorneys for Plaintiff DICKINSON COLLEGE FLEXIBLE FINANCING SYSTEM - 7000 PLAIN EDUCATIONAL GOODS AND SERVICES RETAIL INSTALLMENT CONTRACT Date Auqust 26, 1987 I. Seller: Dickinson College, Carlisle, Pennsylvania 17013 Buyer(s): Mr. Howard M. Miller 110 Judges Lane Baltimore, MD 21204 If there is more than ene Buyer, each of you will be obligated, jointly and severally, for all sums due and for the performance of all agreements as provided in this Contract. Under the terms of this Educational Goods and Services Retail Install- ment Contract, you have agreed to pay the expenses incurred for goods and services to be provided and rendered, as the case may be, to Melissa (hereinafter "Student") during his/her enrollment at Dickinson College during the 1987-88 academic year, including tuition, room and board, books and supplies as herein stated (hereinafter the "Goods and Services"). The Goods and Services shall include only the following: Tuition and room and board II. TERMS OF PAYMENT AND PAYMENT SCHEDULE Disclosures Required by Federal Law ANNUAL PERCENTAGE RATE:* Cost of credit as yearly rate 9.250 % FINANCE AMOUNT FINA~NCED: TOTAL OF TOTAL SALE CHARGE: Amount of credit PAYMENTS: PRICE: Dollar amount provided by Amou~t paid Total co~t of credit will Dickinson College by Buyer as purchase on cost Buyer total of all credit, in- scheduled cluding down payments payment of $ T, 650.00 $ 4907.~8 $ 7000.00 $ 11,907.68 $14,650.00 Exhibit "A" Buyer's payment schedule will be as follows: Number of Payments Amount of Payments $78.34 When Payments Are Due Monthly commencing 9/30/87 until 5/30/00 *Variable Rate: Late Charge: Prepayment: The ANNUAL PERCENTAGE RATE disclosed above is a variable rate and may change. The A~NNUAL PERCENTAGE RATE may increase during the term of this transaction if the prime rate of interest announced in the Wall Street Journal as of the close of business on June 30 of each calendar year increases, and will be increased to the prime rate plus 1%. The ANNUAL PERCENTAGE RATE will not increase more than once a year, and the new interest rate will become effective on July i following the increase, if any, in the prime rate of interest. Any increase will be in the form of higher payment amounts. If your cost of the Goods and Services sold hereunder were $ 7000.00 at 9.25% per annum for 152 months, and the prime rate plus 1% were iocreased to l0.g5 %, your regular monthly payments would increase to $ 82--~-~ Further, the ANNUAL PER- CENTAGE RATE will not increase to more than 18% or such other rate as may be permitted under the Pennsylvania Goods and Services Installment Sales Act. If a payment is more than 15 days late, a sum equivalent to 5% of the late payment (but no more than $2.50 and not less than $i.00) may be charged. Buyer may prepay the unpaid balance of the Amount Financed and any FLNANCE CHARGE due through the date of early payment, in full or in part, without penalty. SEE SECTION VI OF THE CONTRACT BELOW FOR ANY ADDITIONAL INFORMATION ABOUT NON- PAYMENT, DEFAULT AND REQUIRED REPAYMENT BEFORE THE SCHEDULED DATE FOR REPAYMENT OF THE AMOUNT FINANCED. -2- III. ITEMIZATION OF AMOUNT FINANCED i. Cash price of Goods and Services: $ 14,650.00 2. Total down payment: 7,650.00 3. Unpaid balance of cash price (1 - 2): 7,000.00 4. Amount paid to others on Buyer's behalf: 0 5. Amount Financed (3 + 4): $ 7,000.00 IV. CREDIT INSURANCE Credit life insurance for the term of this Contract is not required. V. NO WARRANTIES THERE ARE NO WARRANTIES, EITHER EXPRESSED OR IMPLIED, GIVEN BY SELLER IN CONNECTION WITH SALE OF TH~ GOODS AND SERVICES COVERED BY THIS CONTRACT UNLESS BUYER HAS BEEN GIVEN A SEPARATE WRITTEN WARRANTY. VI. ADDITIONAL PROVISIONS 1. Buyer agrees to pay Seller the Total Sale Price by making the total down payment and paying Seller the Total of Payments in the number and amount of monthly payments shown in the Payment Schedule. Payments are due on or before the same date of each month as the first payment date. Payments must be made to Industrial Valley Bank at the following address: Industrial Valley Bank P.O. Box 433 Upper Darby, Pennsylvania 19082 2. Buyer's legal rights include the right to pay all or part of the amounts due on this Contract in advance of their due dates, to obtain a refund or credit of unearned Finance Charge whenever the amount is paid in full in advance, and (with Seller's consent) to reinstate the Contract if Buyer timely cures any default. 3. Buyer shall be deemed to have committed an "Event of Default" of the Contract upon the occurrence of any of the following: (a) failure to make any payment on or before the date it is due, (b) failure to make a payment on any other contract outstanding with Seller, -3- (c) failure to perform any other provision of the Contract, (d) providing Seller with false information or signatures, (e) death, incompetence, or conviction of any Buyer of crime in- volving fraud or dishonesty, (f) insolvency or bankruptcy of any Buyer. 4. Upon or after the occurrence of any Event of Default, Seller will provide Buyer with notice, by certified mail as required by law, addressed to Buyer's last known address as shown on Seller's records, advising Buyer of the default and of Buyer's right to cure the default. The notice will provide the time, amount and performance necessary to cure the default. If Buyer does not cure the default as provided in the notice, Seller's rights shall include the right to declare all sums due on the Contract to be immediately due and payable. 5. Waiver by Seller of any event of default shall not be binding upon Seller if Seller should thereafter choose to exercise that or any other right or a similar Event of Default occurs later. Ali Seller's rights and remedies shall be cumulative. Seller's exercise of one or more rights shall not cause Seller to lose any other rights. 6. This Contract is freely assignable by Seller. Buyer agrees that upon receiving notice of the assignment Buyer shall be obligated'to the Assignee' of this Contract, which Assignee shall have all of Seller's rights and remedies. 7. If any part of this Contrac~ is held to be illegal, void or unenforgeable, that provision shall be deemed not to have been a part of this Contract, which shall otherwise remain fully effective. 8. The laws of the Commonwealth of Pennsylvania shall apply to this Con- tract except to the extent supplemented, superseded or pre-empted by federal law. 9. This Contract shall be binding upon the parties hereto, their heirs, successors, assigns and legal representagives. i0. TIME IS OF THE ESSENCE OF THIS CONTRACT. NOTICE: ANY HOLDER OF THIS CONSUPiER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITM THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER. NOTICE TO BUYER: (I) DO NOT SIGN THIS AGREEMENT BEFORE YOU READ IT OR IF IT CONTAINS ANY BLANK SPACE. (2) YOU ARE ENTITLED TO A COMPLETELY FILLED-IN COPY OF THIS AGREEMENT, (3) UNDER THE LAW, YOU HAVE THE RIGHT TO PAY OFF IN ADVAMCR -4- THE FULL A~MOUNT DUE AND UNDER CERTAIN CONDITIONS TO OBTAIN A PARTIAL REFUND OF THE FINANCE CHARGE. BUYER(S) ACKNOWLEDGE(S) RECEIVING A COMPLETED COPY OF THIS DICKINSON COLLEGE By FOR DICKINSON COLLEGE USE ONLY For value received, Seller hereby sells, assigns, and ~ransfers to Fidelity Bank all of Seller's rights, title and interest In this Educational Goods and Services Retail Installment Contract, with full recourse to Seller. This /5'~' day of DICKINSON COLLEGE, BY: TITLE -5- VERIFICATION I, THOMAS MEYER, Bursar of Dickinson College, acknowledge that I have the authority to execute this Verification on behalf of Dickinson College and certify that the foregoing Complaint is based upon information which has been gathered by my counsel in the preparation of this lawsuit. The language of this Complaint is that of counsel and not my own. I have read the document and to the extent that this Complaint is based upon information which I have given to my counsel, it is true and correct and to the best of my knowledge, information and belief. To the extent that the content of this Complaint is that of counsel, I have relied upon counsel in making this Verification. This statement and Verification are made subject to the penalties of 18 Pa. C.S. ~ 4904 relating to unsworn falsification to authorities, which provides that if I knowingly make false averments, I may be subject to criminal penalties. Dickinson College Thom~ ~ Assistant Treasurer of Dickinson College Dated: IR E C:E IVE [ AUG ~- 0 200~, MDW¢' DICKINSON COLLEGE, Plaintiff HOWARD M. MILLER, Defendant 1N THE COURT OF .COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 04-4053 CIVIL ACTION-LAW JURY TRIAL OF TWELVE DEMANDED SERVICE AND COST OF SERVICE_ pRAECIPE TO DOCUMENT LONG ~RM STATUTE - p._URSUANT TO THE PENNSYLVANIA ! hereby certify that a copy of the Complaint was mailed to Howard M. Miller on August 16, 2004, at 2 Iron Mill Garth, Cockeysville, MD 21030, by certified mail, restricted delivery, return receipt requested. Attached is the Post Office return receipt signed and dated Howard Miller and dated August 21, 2004, and a copy of the receipt showing the cost of service was $4.65. MARTSON DEARDORFF WILLIAMS & OTTO B David R. GalloX~tY -- I.D. No. 87326 Ten East High Street Carlisle, PA 17013-3093 (717) 243-3341 Date: August 31, 2004 Attorneys for Plaiintiff $ ~.65 7003 1010 0001 1188 9396 CERTIFICATE OF SERVICE_ I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams & Otto, hereby certif~ that a copy of the foregoing Proof of Service was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Mr. Howard M. Miller 2 Iron Mill Garth Cockeysville, MD 21030 MARTSON DEARDORFF WILLIAMS & OTTO ~ad "~ ~ ~Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: August 31, 2004 DICKINSON COLLEGE, Plaimiff HOWARD M. MILt,ER, Defendant 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-4053 CWIL ACTION - LAW JURY TRIAL OF TWELVE DEMANDED TO: HOWARD M. MILLER, Defendant NOTICE OF ENTARY OF DEFAULT JUDGMENT 2004, in the mount of $41.34, collection and attorneys' fees in the amount o£$1,050.00 for a total of $3,948.59, plus costs of suit and interest accruing from date of Judgment as per the terms of the Notes attached to the Complaint for Defendant's failure to file an answer to the Complaint. Date: I hereby certify that the name and address of the proper person to receive this notice under Pa. R. Civ. P. 236 is: Mr. Howard M. Miller 2 Iron Mill Garth Cockeyville, MD 21030- l 386 David R. Galloway, Esquire MARTSON DEARDORFF WILLIAMS & OTTO I.D. 87326 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff DICKINSON COLLEGE, Plaintiff V. HOWARD M. MILLER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-4053 CWIL ACTION - LAW JURY TRIAL OF TWELVE DEMANDED PRAECIPE TO THE PROTHONOTARY: Enter default judgment in the above-captioned action in favor of Plaintiff and against Defendant in the mount of $2,857.25, plus interest from June 29, 2004, in the amount of $41.34, collection and attorneys' fees in the amount of $1,050.00 for a total of $3,948.59, plus costs of suit and interest accruing from date of Judgment as per the terms of the Notes attached to the Complaint for Defendant's failt~re to file an answer to the Complaint. I do hereby certify that a written notice of intention to file this Praecipe (in the form attached hereto) was mailed to the Defendant at the address indicated thereon, on September 28, 2004, which date was subsequent to the date default occurred and at least ten (10) days prior to the date of the Praecipe. Dated: October 13, 2004 .~ ~F WILLIAMS I.D, Number 87326~ Ten East High Street Carlisle, PA 17013 (717) 243-3341 & OTTO Attorneys for Plaintiff David R. Galloway, Esquire I.D. 87326 Ten East High Street Carlisle, PA 17013-3093 (717) 243-3341 DICKINSON COLLEGE, Plaintiff HOWARD M. MILLER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. ~-3 ff l- q06 ~ ClVm ACTIONILAW JURY TRIAL OF TWELVE DEMANDED TO: HOWARD M. MILLER and his attorney, DAVID J. HIRSCH, ESQUIRE IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROV1DE YOU WITH iNFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIP, E 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. Dated: September 28, 2004 Cumberland County Lawyer Referral Service Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone:(717) 249-3166 MARTSON DEARDORFF[~IVILLIAMS & OTTO Ten East"IZligh Street ~ Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff CERTIFICATE OF SERVICE I, Nichole L. Myers, an authorized agent of MARTSON DEARDORFF WILLIAMS & OTTO, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Mr. Howard M. Miller 2 Iron Mill Garth Cockeyville, MD 21030-1386 MARTSON DEARDORFF WILLIAMS & OTTO Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: October 13, 2004