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HomeMy WebLinkAbout11-6546COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS NOTICE OF APPEAL Judicial District, County Of FROM DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. Lo S4 10 Yl, NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date and in the case referenced below. G M rt f,/ 7,6- N C, - 0?- / /L H irjoL' C oG 74 Z DATE OF JUDGMENT IN THE CASE OF (Plaintiff) (Delendant)' r l I7 R 17- ©y /_-_ ALL .,sae k GAA* 77o4 o4 4m, - l ark .1 J_o nl P G This block will be signed ONLY when this notation is required under Pa. R.C.P.D.J. No. 10088. This Notice of Appeal, when received by the District Justice, will operate as a SUPERSEDEAS to the judgment for possession in this case. was Claimany' (see (6) in action before a District Justice, A COMPLAINT MUST BE FILED within twenty (20) days after riling the NOTICE of APPEAL. Signature of Prothonotary or Deputy PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see Pa.R.C.P.D.J. No. 1001(7) in action before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary Enter rule upon A ?L t ?14wC?4?ii-R /tit'14NR ?t'it/PrJ ? appellee(s), to file a complaint in this appeal Name of appellee(s) (Common Pleas No. within twenty (20) days after service of rule or suffer entry of judgment of non pros. Signature o/appellant or attorney or agent RULE: To A LL j;4rj C f ('t4f i //QL N9?i?i"A t appellee(s) Name of appellee(s) T (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU. (3) The date of service of this rule if service was by mail is the date of the mailing. Date: 20 ' 71? Sign-sure of Prothonotary YOU MUST INCLUDE A COPY OF THE NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH THIS NOTICE OF APPEAL. AOPC 312-02 i? WHITE -COURT FILE TO BE FILED WITH PROTHONOTARY GREEN - COURT FILE YELLOW - APPELLANT'S COPY PINK -COPY TO BE SERVED ON APPELLEE GOLD -COPY TO BE SERVED ON DISTRICT JUSTICE FUpEDFFNOTARY Of T? Zell M16? oil-.14 TY CU W AN? 10mok 0, Bl1.'IS`QA '04 c0? ?y3?1 PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER riling of the notice of appeal. Check applicable boxes.) COMMONWEALTH OF PENNSYLVANIA COUNTY OF ; ss AFFIDAVIT: I hereby (swear) (affirm) that I served ? a copy of the Notice of Appeal, Common Pleas , upon the District Justice designated therein on (date of service) 20 , ? by personal service ? by (certified) (registered) mail, sender's receipt attached hereto, and upon the appellee, (name) , on 20 ? by personal service ? by (certified) (registered) mail, sender's receipt attached hereto. (SWORN) (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS DAY OF 20 Signature of affiant Signature of official before whom affidavit was made Title of official My commission expires on 20 COMMONWEALTH OF PENNSYLVANIA Notice of Judgment/Transcript Civil COUNTY OF CUMBERLAND Case Mag. Dist. No: MDJ-09-1-03 MDJ Name: Honorable Richard S. Dougherty Address: 98 South Enola Drive, Suite 1 Enola, PA 17025 Telephone: 717-728-2805 Gary Jones 8 N. Enola Drive Enola, PA 17025 Disposition Summary Alliance Capital Management V. Gary Jones Docket No: MJ-09103-CV-0000213-2011 Case Filed: 4/27/2011 Docket No Plaintiff Defendant Disposition Disposition Date MJ-09103-CV-0000213-2011 Alliance Capital Management Gary Jones Default Judgment for Plaintiff 07/28/2011 Judgment Summary Joint/Several Liability Individual Liability Amount Participant Gary Jones $0.00 $2,356.42 $2,356.42 Judgment Detail (*Post Judgment) In the matter of Alliance Capital Management vs. Gary Jones on 7/28/2011 the disposition is Default Judgment for Plaintiff and judgment was awarded as follows: Judgment Component Joint/Several Liability Individual Liability Deposit Applied Amount Civil Judgment $0.00 $2,244.42 $2,244.42 Filing Fees $0.00 $112.00 $112.00 Grand Total: $2,356.42 ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE JUDGMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. JUL 28 2011 Date !d 'h Magisterial District Judge Richard S. Dougherty certify that this is a true an correct copy o the record o the proceedings containing the judgment. 4TH Date Magisterial District Judge Richard S. Dougherty MDJS 315 Page 1 of 2 Printed: 07/28/2011 2:23:31 PM Alliance Capital Management Docket No.: MJ-09103-CV-0000213-2011 V. Gary Jones Participant List Plaintiff(s) Alliance Capital Management c/o Craig Barrett 1597 Washington Pike Suite B14-178 Bridgeville, PA 15017 Defendant(s) Gary Jones 8 N. Enola Drive Enola, PA 17025 MDJS 315 Page 2 of 2 Printed: 07/28/2011 2:23:31 PM Postal CERTIFIED MAIL RECEIPT cO (Domestic Only; No Insurance Coverage Provided) E? i - - Ln postage $ ----- ?,. CertifiedF.e ? ?21°`` r3 Posfl/fa 1> ED Return Receipt Fee ¢? ;4! Her ED (Endorsement Required) ( - Reslricted Delivery Fee} (Endorsement Required) Cr- p Total Postage & Fees $ ` rentTo tQ ------------- C3 A Lt. A4 _41" ------------ C3 No.; --....... ZIP+4 15 y /OAS 14-745 /•'ycve?I u m (Domestic -0 For delivery information visit our website at www.usips.comu PT) v / Ln Postage $ ," Certdied Fee + - O Return Rec ?ipt Fee C 1??a' li O (Endorsement R squired) Restricted Delivery Fee - (Endorsement R,tquired)I? `II} p Total Postage & Fees # = • -' }?( 4 r 1. rn - -- Sent To - ?(©,.to2.fifr. (t ?/FAs1lJ fFc'17? Street, Apt.1Vo.; or PO Box No. - ----------- - r` T Q2.? / ?d-------------------------------- City, State, ZIP+4 7 PRWF Qf SERMICE OF NOTICE OFAPPEAL AND RULE TO FILE COWILA#111T (This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing of the notice of appeal. Check applicable boxes.) COMMONWEALTH OF PENNSYLVANIA COUNTY OF t?u ... / ? C-, .4 ; ss AFFIDAVIT: I hereby (swear) (affirm) that I served ? a copy of the Notice of Appeal, Common Pleas //- G 5jl1?upon the District Justice designated therein on (date of service) p ?9 Z?rf , 20 (( ? by personal service cerV", jjreggistered) mail, sender's receipt atta?to, and upon the appellee, name 1°fG ` ! ( ) , on U z? 9 20_L( ? by personal service by (certified) (regrs Bred) mail, senders receipt attached hereto. (SWORN) (AFFIRMED) AND S BSCRIB D BEFORE ME THIS 36`It DAY OF c r 20_L_. Signat o]7?'a! before omm affidavit %as made Title of official / My commission expires on ?eM&I X120 Iq / Signature of affiant W C `Cn O 4C ZIC . a _1X n D O yr C -?`e ea n -c as ? COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS Judicial District, County Of NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date and in the case referenced below. 'PhLLAN1 IF In 7 V -, 2 . rrJ I ALL ?'gat..,tA4&k 4- *4 i O?- f t, vs This block will be signed ONLY when this notation is required under Pa. R.C.P.D.J. No. 10088. This Notice of Appeal, when received by the District Justice, will operate as a SUPERSEDEAS to the judgment for possession in this case. Sonstum of Prdhonotwy or Deputy If appellant was Claimant- (see Pa. R.C.P.D.J. No. 1001(6) in action before a District Justice, A COMPLAINT MUST BE FILED within twenty (20) days after filing the NOTICE of APPEAL. PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND M) LE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see Pa.R.C.P.D.J. No. 1001(7) in action before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary Enter rule upon { LI'tgr.C E' appel{ee(s), to file a complaint in this appeal Name of appeNee(s) i (Common Pleas No. ( ?... f ) within twenty (20) days after service of rule or suffer entry of judgment of non pros. , Signature of appsilant or attorney or agent RULE: To?A) 1 r i,jc W , appellee(s) Name of appellee(s) (1) You are notifiieddthet a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service of this rule upon yq"y' P'0 prral w0do or by certified or registered mail. ., Y 4 . (2) If yAu dcrpoi {e ,?al?irli legit * injhis time, a JUDGMENT OF NON PROS MAY BE ENTEREI tMS !y, (3) T*40 iris n letif-4er?rice was by mail is the date of the mailing. Date: b Stg?s rothonota ? YOU MUST INCLU6'A,66I Y OF THE NOTICE OF JUDGMENT/TRANSCRIPT FORM! WITH THIS NOTICE OF APPEAL. AOPC 312-02 WHITE - COURT FILE TO BE FILED WITH PROTHONOTARY GREEN - COURT FILE YELLOW - APPELLANT'S COPY PINK -COPY TO BE SERVED ON APPELLEE GOLD -COPY TO BE SERVED ON DISTRICT JUSTICE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ALLIANCE CAPITAL MANAGEMENT Plaintiff NO. 11-6546 VS. CIVIL ACTION-LAW GARY JONES PRAECIPE TO THE PROTHONOTARY: Please enter my appearance on behalf of the Plaintiff '_1 Z ' DATE: 9/12/11 Eugene R. Campbell Supr. Ct. I.D. #07447 2205 E. Market St. York, PA 17402 717 755-5978 Counsel for Defendants r6M M c., r;rIF? -?A ra C:) , n Mr -,j ®- a . ),NOT t! !! rr?? t E `1 r7p 1 a i s ttiJ' J J C,UNHI5ERL.AN0 COUNTY I' - A..) I LVANIA Alliance Capital Management : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA Gary Jones NO. 11-6546 20 Defendant : Civil Term NOTICE TO DEFEND 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 AN ATTORNEY AND FILLING 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 JUDGEMENT 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 PEOPERTY 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 THE TELEPHONE OR THE OFFICE SET FORTH BELOW TO FIND WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ALLIANCE CAPITAL MANAGEMENT Plaintiff NO. 11-6546 VS. GARY JONES Defendant COMPLAINT CIVIL ACTION-LAW 1. Plaintiff is a business located at 1597 Washington Pike, Suite B14-178, Bridgeville, PA 15017. 2. Defendant is an adult individual residing at 98 S. Enola Dr., Apt. 1, Enola, PA, Cumberland County, Pennsylvania 17025. 3. Defendant had on open credit card account with Columbus B&T Aspire, on which he made various charges. This account was assigned to Plaintiff, by assignments, copies of which are attached hereto, made a part hereof and marked Exhibit "A". The balance due on the open credit card account at the time of the assignment was $2,244.42. 4. Despite requests for payment, Defendant has not made any payments or made any efforts to reduce the balance due. 5. Defendant accepted the terms of the card by using the card to make purchases and/or cash advances. He further accepted the balance on the card by not making any protest of the bills he received. 6. A statement of the history of the account, crediting Defendant will all payments, is attached hereto as Exhibit "B". According to this account stated, there is currently due and owing to Plaintiff the sum of $2,244.42. 7. Plaintiff expended the sum of $112.00 in filing this matter before the District Magistrate, which it is entitled to recover. WHEREFORE, Plaintiff requests this Honorable court to enter judgment in favor of Plaintiff and against Defendant in the amount of $2,356.42, together with interest and costs of suit. Respectfully submitted, EUGENE R. CAMPBELL, ESQUIRE Attorney ID: 07447 2205 East Market Street York, PA 17402 (717) 755-5978 ATTORNEY FOR PLAINTIFF AFFIDAVIT OF SALE OF ACCOUNT BY ORIGINAL CREDITOR State of Georgia, County of Fulton. Greg Ryan being duly sworn, deposes and says: I am over 18 and not a party to this action. I am the custodian of records (title) of CompuCredit Corporation, prior owner of certain Aspire Visa credit card receivables (the "Accounts") originated pursuant to an Affinity Agreement between CompuCredit Corporation and Columbus Bank and Trust Company, dated January 6, 1997. Aspire Visa is a licensed trademark of CompuCredit Corporation. In my position I am a custodian of the creditor's books and records, and am aware of the process of the sale and assignment of electronically stored business records. On or about July 29, 2010 (date) CompuCredit Corporation sold a pool of charged-off Accounts by a Purchase and Sale Agreement and a Bill of Sale to Jefferson Capital Systems, LLC (debt buyer). As part of the sale of the Accounts, electronic records and other records were transferred on individual Accounts to Jefferson Capital Systems, LLC. These records were kept in the ordinary course of business of CompuCredit Corporation. I am not aware of any errors in these accounts. The above statements are true to the best of my knowledge. 144- Signed this day of J-Z t Greg yanSworn before me this day of (Notary Stamp) CLAAESM DUMM Notary Public Cobb ??bd My Commi ssion =ft k BILL OF SALE CompuCredit Corporation a Georgia corporation ("Seller"), for value received and pursuant to the terms and conditions of the Financial Asset Sale Agreement, dated March 11th, 2004 ("Agreement°) between Seller and JEFFERSON CAPITAL SYSTEMS, LLC ("Buyer"), as amended, does hereby sell, assign and convey to Buyer, its successor and assigns, all right, title and interest of Seller in and to those certain Receivables listed on the attached Schedule 1 (which Schedule 1 may be delivered in the form of a diskette or other electronically formatted medium), without recourse and without representation of, or warranty of, collectibility, or otherwise, except to the extent provided for within the Agreement. EXECUTED this 29th day of JULY, 2010. CompuClediiyC¢rp§r;#ion, a Georgia corporation By:- V&K)y V GLOBAL ACCEPTANCE CREDIT COMPANY, LP 5850 W I-20, SUITE 100 ARLINGTON, TEXAS 76017 ASSIGNMENT AND BILL OF SALE Global Acceptance Credit Company, LP ("Seller") has entered into a Loan Sale Agreement, dated March 10, 2011 ("Agreement") for the sale of Accounts described in Schedule A thereof to Alliance Capital Management, Inc ("Buyer"), upon the terms and conditions set forth in that agreement. NOW THEREFORE, for good and valuable consideration, Seller hereby sells, assigns and transfers to Buyer all of Seller's rights, title and interest in each and every one of the Accounts described in the Agreement, provided however such transfer is made without any representations, warranties or recourse, except as provided in the Agreement. Buyer and Seller agree that the Purchase Price shall be stated in Schedule A, attached to the Agreement. IN WITNESS WHEREOF, Seller has signed and delivered this instrument on the l Otn Day of March, 2011. Global Acceptance Credit Company, LP By: -04? Mike Varrichio President/CEO BILL OF SALE Jefferson Capital Systems, LLC, ("Seller"), for value received and pursuant to the terms and conditions of the Financial Asset Sale Agreement, dated May 13, 2010 ("Agreement") between Seller and Global Acceptance Credit Company, LP ('Buyer") does hereby sell, assign and convey to Buyer, its successor and assigns, all right, title and interest of Seller in and to those certain Accounts listed on the attached Schedule 1 (which Schedule 1 may be delivered in the form of a diskette or other electronically formatted medium), without recourse and without representation of, or warranty of, collectability, or otherwise, except to the extent provided for within the Agreement. EXECUTED this day of -dC'Ba24Ctc°L 20_(O . Jefferson Capital Systems, LLC By: 1 AFFIDAVIT OF SALE OF ACCOUNT BY DEBT SELLER State of Minnesota, County of Stearns. Andrew Carlson being duly sworn, deposes and says: I am over 18 and not a party to this action. I am the Director of Portfolio Management (title) of Jefferson Capital Systems, LLC (debt seller). In that position I am the custodian of the debt seller's books and records, and am aware of the procedures used for the sale and assignment of electronically stored business records. On December 29, 2010, Jefferson Capital Systems, LLC sold a pool of charged-off Aspire Visa credit card receivables (the "Accounts") by a Financial Asset Sale Agreement and a Bill of Sale to Global Acceptance Credit Company, LP (debt buyer). Jefferson Capital Systems, LLC (debt seller) had previously bought the Accounts from CompuCredit Corporation on July 29, 2010. CompuCredit Corporation was the prior owner of the Accounts originated pursuant to an Affinity Agreement between CompuCredit Corporation and Columbus Bank and Trust Company, dated January 6, 1997. Aspire Visa is a licensed trademark of CompuCredit Corporation. All records received by Jefferson Capital Systems, LLC were received as part of the purchase transaction from CompuCredit Corporation and have been incorporated into Jefferson Capital Systems, LLC's records and are kept in the regular course of business. I believe that there are no errors in these accounts. The above statements are true to the best of my knowledge. Signed this ? day of Z_ ?s4z, , Andrew Carlson Sworn before me this 2 day of e i (Not ry tp' D J ENNIFER S. GAUWITZ • S NOTARY PURL -MINNESOTA ?i MY Commission Expires Jan. 91, 2012 r six ? /B/ T - fi ,,/,a nn L 972738 DEBBIE 967449 ARNETTA 968427 RICHARD 972965 JAMES 970949 RONALD 964828 HARRIET 969479 CARL 974207 RITA 967594 ROWN.F /3 -31 3173H 973609 JAMES 3173H 970715 PATRICIA 3173H 971051 OSCAR 3173H 975283 MALINDA 3173H 973509 DAVID 3173H 971888 GEORGE 3173H 969642 ROGER 3173H 975234 CHRISTINA 3173H 971344 ABIGAIL 3173H 971309 JESSICA 3173H 972939 HAROLD 3173H 970660 ERIC 3173H 971342 CHARLES 3173H 968557 HELEN 3173H 970246 ALBERT 3173H 968072 VALERIE 3173H 968248 JOANNE 3173H 970314 SUSAN 3173H 973874 TOBY 3173H 972050 ROBERT 3173H 971585 SHARON 3173H 968941 SHIRLEY 3173H 969163 KWANG 3173H 970448 JAMES 3173H 974546 GUY 3173H 974334 ROSA 3173H 969839 RONALD 3173H 969527 LEONOR 3173H 971841 SHERRIE 3173H 970800 SUSAN 3173H 968474 MARIANNA 3173H 967306 LESLIE 3173H 970991 MAUREEN 3173H 970019 REGINALD 3173H 971494 DONALD 3173H 967572 DANIEL 3173F 954846 RAYMOND /0 6,6 k'_t ss r ,2 POINT MARION PA 15474 1ST NAT BK OMAHA EMERGE PHILADELPHIA PA 19140 1st BK DELAWARE TRIBUTE PITTSBURGH PA 15235 1st BK DELAWARE TRIBUTE PHILADELPHIA PA 19114 1ST N AM NAT BK EMERGE PHILADELPHIA PA 19141 1st BK DELAWARE TRIBUTE YORK PA 17406 1st BK DELAWARE TRIBUTE JOHNSTOWN PA 15907 COLUMBUS B&T ASPIRE CARD ALLENTOWN PA 18106 COLUMBUS B&T ASPIRE CARD PHILADELPHIA PA 19118 COLUMBUS B&T ASPIRE CARD PHILADELPHIA PA 19154 1st BK DELAWARE TRIBUTE PHILADELPHIA PA 19141 1 IRRAn1 'roi 10'r 0 A i 11r- --- - /? " ENOLA PA 17025 COLUMBUS B&T ASPIRE CARD SELINSGROVE PA 17870 1st BK DELAWARE TRIBUTE Phoenixville PA 19460 URBAN TRUST SALUTE GOLD PHILADELPHIA PA 19138 URBAN TRUST SALUTE GOLD HARRISBURG PA 17110 URBAN TRUST SALUTE GOLD SCRANTON PA 18505-1017 COLUMBUS B&T ASPIRE CARD PHILADELPHIA PA 19116 1st BK DELAWARE TRIBUTE RUFFS DALE PA 15679 URBAN TRUST SALUTE GOLD RUFFS DALE PA 15679 URBAN TRUST SALUTE GOLD FLOURTOWN PA 19031 FIRST B&T ASPEN CARD KUTZTOWN PA 19530 1st BK DELAWARE TRIBUTE WHITE MILLS PA 18473 URBAN TRUST SALUTE GOLD FEASTERVILLE TREVOSE PA 19053 URBAN TRUST SALUTE GOLD LANSDALE PA 19446 FIRST B&T ASPEN CARD UNIONTOWN PA 15401 URBAN TRUST SALUTE GOLD GREENSBURG PA 15650 1st BK DELAWARE TRIBUTE NANTICOKE PA 18634 1st BK DELAWARE TRIBUTE TOWANDA PA 18848 1st BK DELAWARE TRIBUTE MONROEVILLE PA 15146-3722 1st BK DELAWARE TRIBUTE BERWICK PA 18603 COLUMBUS B&T ASPIRE CARD SCRANTON PA 18508 1st BK DELAWARE TRIBUTE LOYSVILLE PA 17047 1st BK DELAWARE TRIBUTE KOPPEL PA 16136 1st BK DELAWARE TRIBUTE PHILADELPHIA PA 19115 COLUMBUS B&T ASPIRE CARD LEVITTOWN PA 19055 FIRST B&T ASPEN CARD EAST STROUDSBURG PA 18302 COLUMBUS B&T ASPIRE CARD EASTON PA 18042 1st BK DELAWARE TRIBUTE MANCHESTER PA 17345 COLUMBUS B&T ASPIRE CARD PHILADELPHIA PA 19124 1st BK DELAWARE TRIBUTE EAST NORRITON PA 19401 1st BK DELAWARE TRIBUTE WALLINGFORD PA 19086 PROVIDIAN BANK ASPIRE BLAKESLEE PA 18610 1st NAT BK OMAHA EMERGE PHILADELPHIA PA 21216 COLUMBUS B&T ASPIRE CARD PHILADELPHIA PA 19134 1st BK DELAWARE TRIBUTE PHILADELPHIA PA 19139 COLUMBUS B&T ASPIRE CARD MONTOURSVILLE PA 17754-7723 COLUMBUS B&T ASPIRE CARD EAGLEVILLE PA 19408 PROVIDIAN BANK ASPIRE ALIQUIPPA PA 15001 URBAN TRUST SALUTE GOLD 7726740100258192 /3 (f, 14 11,10 it ,5,5 -t -77 Z/vz- L/v O&A) $594.59 6/21/2010 6/22/2000 $386.40 6/4/2010 5/23/2007 $662,19 6/7/2010 9/24/2007 $5,849.06 6/21/2010 10/7/1998 $29&.99 6/15/2010 7/7/2008 $2,862.38 5/18/2010 8/17/2007 $98195 6/10/2010 5/10/2001 $1.725.19 6/25/2010 4/22/2005 $913.35 6/7/2010 1/19/2006 $1,145:93 6/11/2010 6/11/2007 S- - k56 /14/2010 9/6/2007 Card Transaction History GARY L JONES COLUMBUS BANK AND TRUST 8 N ENOLA DR ASPIRE CARD45 64 1 90 1 0025 8 1 92 ENOLA, PA 17025 7726740100258192 POST TRANS TRANSACTION DATE DATE CODE AMOUNT DESCRIPTION $0.00 *** PREVIOUS BALANCE *** 03/23/2006 20060322 1001 $23.12 WAL-MART #2368 EAST STROUDS PA, PA 03/27/2006 20060323 1001 $30.54 THEO'S BAR & GRILLE CAMP HILL PA, PA 03/27/2006 20060326 1001 $37.10 WAL-MART #1886 MECHANICSBUR PA, PA 04119/2006 20060419 422 $0.81 CARDSAFE 800-442-0752 05/04/2006 20060504 108 ($91.57) PAYMENT RECEIVED -- THANK YOU 05/11/2006 20060510 1001 $146.25 BEST BUY 00005470 HARRISBURG PA, PA 05/15/2006 20060511 1001 $4.00 BWI GARAGE LOT WASHINGTON DC, DC 05/17/2006 20060516 1001 $362.00 ST. PAUL TRAVELERS 800-841-3005 CT, CT 05/19/2006 20060519 422 $1.39 CARDSAFE 800-442-0752 06/16/2006 20060616 402 $35.00 LATE PAYMENT CHARGE 06/19/2006 20060619 422 $5.07 CARDSAFE 800442-0752 06/19/2006 20060619 403 $12.80 PURCHASE *FINANCE CHARGE* 07/03/2006 20060703 108 ($50.00) PAYMENT RECEIVED -- THANK YOU 07/03/2006 20060703 108 ($80.00) PAYMENT RECEIVED --THANK YOU 07/19/2006 20060719 422 $4.70 CARDSAFE 800442-0752 07/19/2006 20060719 403 $11.86 PURCHASE *FINANCE CHARGE* 08/04/2006 20060804 108 ($75.00) PAYMENT RECEIVED -- THANK YOU 08/21/2006 20060821 422 $4.06 CARDSAFE 800-442-0752 08/21/2006 20060821 403 $10.24 PURCHASE *FINANCE CHARGE* 09/04/2006 20060904 108 ($40.00) PAYMENT RECEIVED -- THANK YOU 09/19/2006 20060919 422 $3.65 CARDSAFE 800442-0752 09/19/2006 20060919 403 $9.20 PURCHASE *FINANCE CHARGE* 09/28/2006 20060927 1001 $6.65 222 TRAVEL PLAZA Q39 EPHRATA PA, PA 09/29/2006 20060927 1001 $3.75 WAWA #263 PARKESBURG PA, PA 09/29/2006 20060928 1001 $4.11 SUNOCO SVC STATION MIDDLETOWN PA, PA 10/02/2006 20060928 1001 $4.80 COVENTRY HESS MART POTTSTOWN PA, PA 10/17/2006 20061017 402 $35.00 LATE PAYMENT CHARGE 10/19/2006 20061019 422 $3.72 CARDSAFE 800-442-0752 10/19/2006 20061019 403 $9.39 PURCHASE *FINANCE CHARGE* 10/30/2006 20061030 108 ($50.00) PAYMENT RECEIVED -- THANK YOU 10/31/2006 20061031 108 ($200.00) PAYMENT RECEIVED -- THANK YOU 11/20/2006 20061 120 422 $2.51 CARDSAFE 800442-0752 11/20/2006 20061120 403 $6.33 PURCHASE *FINANCE CHARGE* 12/01/2006 20061201 138 $4.95 WEB PAYMENT FEE 12/01/2006 20061201 108 ($75.00) WEB PAYMENT RECEIVED THANK YOU 12/19/2006 20061219 422 $1.43 CARDSAFE 800442-0752 12/19/2006 20061219 403 $3.61 PURCHASE *FINANCE CHARGE* 01/15/2007 20070115 108 ($65.00) WEB PAYMENT RECEIVED THANK YOU 01/15/2007 20070115 138 $4.95 WEB PAYMENT FEE Monday, January 10, 2011 ?, Page 1 of 5 GARY L JONES 8 N ENOLA DR ENOLA, PA 17025 COLUMBUS BANK AND TRUST ASPIRE CARD-4564190100258192 7726740100258192 POST DATE TRANS DATE CODE AMOUNT TRANSACTION DESCRIPTION 01/19/2007 20070119 422 $1.14 CARDSAFE 800-442-0752 01/19/2007 20070119 403 $2.88 PURCHASE *FINANCE CHARGE* 02/16/2007 20070216 402 $35.00 LATE PAYMENT CHARGE 02/20/2007 20070220 422 $0.69 CARDSAFE 800442-0752 02/20/2007 20070220 403 $1.73 PURCHASE *FINANCE CHARGE* 03/02/2007 20070302 108 ($45.00) PAYMENT RECEIVED -- T14ANK YOU 03/19/2007 20070319 422 $0.65 CARDSAFE 800-442-0752 03/19/2007 20070319 403 $1.63 PURCHASE *FINANCE CHARGE* 03/22/2007 20070322 108 ($50.00) PAYMENT RECEIVED -- THANK YOU 04113/2007 20070413 108 ($15.14) WEB PAYMENT RECEIVED THANK YOU 04/13/2007 20070413 138 $4.95 WEB PAYMENT FEE 04/19/2007 20070419 422 $0.16 CARDSAFE 800-442-0752 05/21/2007 20070521 422 $0.05 CARDSAFE 800442-0752 05/28/2007 20070528 108 ($5.11) PAYMENT RECEIVED -- THANK YOU 06/19/2007 20070619 422 $0.01 CARDSAFE 800442-0752 07/16/2007 20070713 168 ($0.06) CARDSAFE 800442-0752 11/15/2007 20071113 1001 $600.00 FMCSA OP1 COLLECTIONS 2024930242 DC, DC 11/16/2007 20071114 1001 $600.00 FMCSA OP1 COLLECTIONS 2024930242 DC, DC 11/16/2007 20071114 1001 $4.69 RUTTER'S FARM STRE #53 ETTERS PA, PA 11/19/2007 20071115 1006 ($600.00) FMCSA OPI COLLECTIONS WASHINGTON DC, DC 11/19/2007 20071 116 1001 $87.59 PET VALU 45133 ENOLA PA, PA 11/19/2007 20071119 422 $2.42 CARDSAFE 1-800442-0752 11/21/2007 20071120 1001 $7.31 HARDEE'S #150215029267 DAUPHIN PA, PA 12/13/2007 20071213 108 ($35.00) PAYMENT RECEIVED -- THANK YOU 12/13/2007 20071213 138 $14.95 PHONE PAYMENT FEE 12/19/2007 20071219 422 $6.89 CARDSAFE 1-800442-0752 12/19/2007 20071219 403 $17.38 PURCHASE *FINANCE CHARGE* 01/08/2008 20080108 108 ($21.00) PAYMENT RECEIVED -- THANK YOU 01/22/2008 20080122 422 $6.85 CARDSAFE 1-800442-0752 01/22/2008 20080122 403 $17.28 PURCHASE *FINANCE CHARGE* 02/18/2008 20080218 108 ($21.00) PHONE PAYMENT RECEIVED THANK YOU 02/18/2008 20080218 138 $14.95 PHONE PAYMENT FEE 02/19/2008 20080219 422 $6.91 CARDSAFE 1-800442-0752 02/19/2008 20080219 403 $17.44 PURCHASE *FINANCE CHARGE* 03/13/2008 200803 t 3 108 ($25.00) PAYMENT RECEIVED -- THANK YOU 03/19/2008 20080319 422 $6.88 CARDSAFE 1-800442-0752 03/19/2008 20080319 403 $17.37 PURCHASE *FINANCE CHARGE* 03/31/2008 20080328 1001 $4.00 WM SUPERCENTER HARRISBURG (E PA, PA 04/08/2008 20080406 1001 $48.74 THE PEPBOYS 00000216 MECHANICSBURG PA, PA 04/11/2008 20080411 108 ($22.00) PAYMENT RECEIVED -- THANK YOU 04/21/2008 20080421 422 $7.13 CARDSAFE 1-800-442-0752 04/21/2008 20080421 403 $17.99 PURCHASE *FINANCE CHARGE* Monday, January 10, 2011 Page 2 of 5 GARY L JONES 8 N ENOLA DR ENOLA, PA 17025 COLUMBUS BANK AND TRUST ASPIRE CARD45 64 1 90 1 0025 8 19 2 7726740100258192 POST TRANS TRANSACTION DATE DATE CODE AMOUNT DESCRIPTION U4/24/lUUB 20080422 1001 $76.48 TURNER BUICK CO. HARRISBURG PA, PA 04/28/2008 20080424 1001 $200.91 ADVANCE AUTO PARTS # 1238 ENOLA PA, PA 04/28/2008 20080425 1001 $141.84 ADVANCE AUTO PARTS #1246 HARRISBURG PA, PA 05/02/2008 20080501 1001 $2.95 SHEETZ 00003749 HARRISBURG PA, PA 05/05/2008 20080501 1001 $2.05 EXXONMOBIL 42004812 HARRISBURG PA, PA 05/05/2008 20080502 1001 $2.86 SHEETZ 00003749 HARRISBURG PA, PA 05/07/2008 20080505 1001 $6.03 SHEETZ 00003749 HARRISBURG PA, PA 05/07/2008 20080506 1001 $7.32 SHEETZ 00003749 HARRISBURG PA, PA 05/12/2008 20080509 1001 $10.55 RICK'S HOG WILD CATERI EAST BERLIN PA, PA 05/20/2008 20080518 1001 $18.09 MCDONALD'S F1965 ENOLA PA, PA 05/19/2008 20080519 422 $11.46 CARDSAFE 1-800442-0752 05/19/2008 20080519 108 ($23.00) PAYMENT RECEIVED -- THANK YOU 05/19/2008 20080519 403 $28.93 PURCHASE *FINANCE CHARGE* 05/21/2008 200805t9 1001 $6.56 BURGER KING #4774 Q07 HARRISBURG PA, PA 05/26/2008 20080522 1001 $6.57 MCDONALD'S M4941 OF PA HARRISBURG PA, PA 05/2612008 20080522 1001 $17.90 PAYPAL *RINGSTHINGS 402-935-7733 CA, CA 05/26/2008 20080523 1001 $11.74 BURGER KING 44774 Q07 HARRISBURG PA, PA 05/29/2008 20080528 1001 $79.97 WC *JC WHITNEY CATALOG 800469-3894 IL, 11. 06/02/2008 20080530 1001 $4.65 SHEETZ 00003749 HARRISBURG PA, PA 06/02/2008 20080530 1001 $2.58 EXXONMOBIL 45689601 PINE GROVE PA, PA 06/02/2008 20080531 1001 $5.35 GO MART #62 DUNBAR WV, WV 06/02/2008 20080531 1001 $18.36 ADVANCE AUTO PARTS # 1238 ENOLA PA, PA 06/02/2008 20080601 1001 $5.09 SUPER QUIK 10 WEST PORTSMOU OH, OH 06/03/2008 20080601 1001 $63.00 SUNOCO SVC STATION WHEELERSBURG OH, OH 06/03/2008 20080602 1001 $61.50 AMOCO OIL 06902027 HANCOCK MD, MD 06/12/2008 20080611 1001 $4.13 SHEETZ 00001503 STATE COLLEGE PA, PA 06/13/2008 20080613 108 ($38.00) PAYMENT RECEIVED -- THANK YOU 06/16/2008 20080614 1001 $2.48 EXXONMOBIL 42004812 HARRISBURG PA, PA 06/20/2008 20080618 1001 $3.29 EXXONMOBIL 42004812 HARRISBURG PA, PA 06/20/2008 20080618 1001 $6.34 TB #15293 00152934 BALTIMORE MD, MD 06/19/2008 20080619 422 $14.11 CARDSAFE 1-800442-0752 06/19/2008 20080619 403 $35.60 PURCHASE *FINANCE CHARGE* 06/20/2008 20080619 1001 $2.30 SHEETZ 00001503 STATE COLLEGE PA, PA 06/23/2008 20080620 1001 $3.29 EXXONMOBIL 42004812 HARRISBURG PA, PA 06/26/2008 20080625 1001 $34.50 HUB CAP'S WHEEL'S TIRES ENOLA PA, PA 06/27/2008 20080626 1001 $9.09 SHEETZ 00003749 HARRISBURG PA, PA 06/27/2008 20080626 1001 $2.79 SHEETZ 00003749 HARRISBURG PA, PA 07/02/2008 20080701 1001 $4.76 AUTOZONE # 1953 MCHANICSBURG PA, PA 07/04/2008 20080702 1001 $7.08 MCDONALD'S F10256 HARRISBURG PA, PA 07/09/2008 20080707 1001 $130.76 THE PEPBOYS 00000216 MECHANICSBURG PA, PA 07/10/2008 20080709 1001 $3.84 SHEETZ 00003749 HARRISBURG PA, PA 07/14/2008 20080711 1001 $3.84 SHEETZ 00003749 HARRISBURG PA, PA Monday, January 10, 2011 Page 3 of 5 GARY L JONES 8 N ENOLA DR ENOLA, PA 17025 COLUMBUS BANK AND TRUST ASPIRE CARD4564190100258192 7726740100258192 rkill) I DATE I HA1NS DATE CODE AMOUNT TRANSACTION DESCRIPTION 07/16/2008 20080716 108 ($47.00) PAYMENT RECEIVED -- THANK YOU 07/21/2008 20080718 1001 $5.82 MCDONALD'S F7045 LEBANON PA, PA 07/21/2008 20080718 1001 $4.25 SHEETZ 00003749 HARRISBURG PA, PA 07/21/2008 20080721 422 $16.33 CARDSAFE 1-800442-0752 07/21/2008 20080721 403 $41.22 PURCHASE *FINANCE CHARGE* 07/24/2008 20080722 1001 $11.85 BURGER KING #2041 Q07 LEBANON PA, PA 07/28/2008 20080724 1001 $6.56 MCDONALD'S F5050 HARRISBURG PA, PA 07/28/2008 20080724 1001 $4.35 EXXONMOBIL 47765300 LEWISBERRY PA, PA 07/28/2008 20080725 1001 $6.04 SHEETZ 00003749 HARRISBURG PA, PA 08/07/2008 20080806 1001 $5.73 SHEETZ 00003749 HARRISBURG PA, PA 08/08/2008 20080808 108 ($54.00) PAYMENT RECEIVED -- THANK YOU 08/15/2008 20080814 1001 $4.55 MCDONALD'S F1616 YORK PA, PA 08/15/2008 20080814 1001 $5.73 SHEETZ 00004127 HARRISBURG PA, PA 08/20/2008 20080818 1001 $2.10 ADVANCE AUTO PARTS # 1238 ENOLA PA, PA 08/19/2008 20080819 422 $17.54 CARDSAFE 1-800442-0752 08/19/2008 20080819 403 $43.93 PURCHASE *FINANCE CHARGE* 08/21/2008 20080820 1001 $5.43 MCDONALD'S M4852 OF VA LEESBURG VA, VA 08/22/2008 20080821 1001 $2.87 SHEETZ 00003749 HARRISBURG PA, PA 08/25/2008 20080822 1001 $5.00 EXXONMOBIL 42004812 HARRISBURG PA, PA 08/25/2008 20080822 1001 $16.50 USPS 4134870106 HARRISBURG PA, PA 08/26/2008 20080825 1001 $8.16 SHEETZ 00003749 HARRISBURG PA, PA 09/01/2008 20080829 1001 $4.90 SUNOCO SVC STATION HARRISBURG PA, PA 09/08/2008 20080908 108 ($56.00) PAYMENT RECEIVED -- THANK YOU 09/19/2008 20080919 422 $18.10 CARDSAFE 1-800-442-0752 09/19/2008 20080919 403 $45.31 PURCHASE *FINANCE CHARGE* 10/10/2008 20081010 108 ($57.00) PAYMENT RECEIVED -- THANK YOU 10/20/2008 20081020 422 $18.16 CARDSAFE 1-800442-0752 10/20/2008 20081020 403 $45.48 PURCHASE *FINANCE CHARGE* 11/10/2008 20081110 108 ($57.00) PAYMENT RECEIVED -- THANK YOU 11/19/2008 20081119 422 $18.17 CARDSAFE 1-800442-0752 11/1912008 20081119 403 $45.50 PURCHASE *FINANCE CHARGE* 12/08/2008 20081208 108 ($58.00) PAYMENT RECEIVED --THANK YOU 12/19/2008 20081219 422 $18.14 CARDSAFE 1-800-442-0752 12/19/2008 20081219 403 $45.43 PURCHASE *FINANCE CHARGE* 12/22/2008 20081222 108 ($8.99) PAYMENT PROMOTION CREDIT ATLANTA GA, GA 01/12/2009 20090112 108 ($58.00) PAYMENT RECEIVED -- THANK YOU 01/20/2009 20090120 422 $18.14 CARDSAFE 1-800442-0752 01/20/2009 20090120 403 $45.42 PURCHASE *FINANCE CHARGE* 02/09/2009 20090209 108 ($58.00) PAYMENT RECEIVED -- THANK YOU 02/20/2009 20090220 422 $18.15 CARDSAFE 1-800-442-0752 02/20/2009 20090220 403 $45.44 PURCHASE *FINANCE CHARGE* 03/16/2009 20090316 108 ($58.00) PAYMENT RECEIVED -- THANK YOU Monday, January 10, 2011 Page 4 of 5 GARY L JONES 8 N ENOLA DR ENOLA, PA 17025 COLUMBUS BANK AND TRUST ASPIRE CARD4564190100258192 7726740100258192 rub I TRANS TRANSACTION DATE DATE CODE AMOUNT DESCRIPTION .-LY/wvy zuuvwIv 422 $18.26 CARDSAFE 1-8001142-0752 03/19/2009 20090319 403 $45.71 PURCHASE *FINANCE CHARGE* 04/13/2009 20090413 108 ($58.00) PAYMENT RECEIVED -- THANK YOU 04/20/2009 20090420 422 $18.21 CARDSAFE 1-8001142-0752 04/20/2009 20090420 403 $45.60 PURCHASE *FINANCE CHARGE* 05/01/2009 20090501 108 ($58.00) PAYMENT RECEIVED -- THANK YOU 05/19/2009 20090519 422 $18.03 CARDSAFE 1-800-442-0752 05/19/2009 20090519 403 $45.14 PURCHASE *FINANCE CHARGE* 06/11/2009 20090611 108 ($58.00) PAYMENT RECEIVED -- THANK YOU 06/19/2009 20090619 422 $18.19 CARDSAFE 1-800-442-0752 06/19/2009 20090619 403 $45.55 PURCHASE *FINANCE CHARGE* 07/09/2009 20090709 108 ($59.00) PAYMENT RECEIVED -- THANK YOU 07/20/2009 20090720 422 $18.15 CARDSAFE 1-800-442-0752 07/20/2009 20090720 403 $45.44 PURCHASE *FINANCE CHARGE* 08/17/2009 20090817 402 $35.00 LATE PAYMENT CHARGE 08/19/2009 20090819 422 $18.32 CARDSAFE 1-8001342-0752 08/19/2009 20090819 403 $45.88 PURCHASE *FINANCE CHARGE* 09/07/2009 20090907 108 ($150.00) PAYMENT RECEIVED -- THAN* YOU 09/14/2009 20090914 108 ($45.00) PAYMENT RECEIVED -- THAN* YOU 09/21/2009 20090921 422 $18.37 CARDSAFE 1-800-442-0752 09/21/2009 20090921 403 $45.99 PURCHASE *FINANCE CHARGE* 10/19/2009 20091016 108 ($75.00) PAYMENT RECEIVED -- THANK YOU 10/20/2009 20091020 422 $18.25 CARDSAFE 1-800442-0752 10/20/2009 20091020 403 $45.70 PURCHASE *FINANCE CHARGE* 10/30/2009 20091030 108 ($100.00) PAYMENT RECEIVED -- THANK YOU 11/19/2009 20091119 422 $18.01 CARDSAFE 1-800-442-0752 11/19/2009 20091 119 403 $45.09 PURCHASE *FINANCE CHARGE* 12/17/2009 20091217 402 $35.00 LATE PAYMENT CHARGE 12/21/2009 20091221 422 $18.32 CARDSAFE 1-800-442-0752 12/21/2009 20091221 403 $45.87 PURCHASE *FINANCE CHARGE* 01/18/2010 20100118 402 $35.00 LATE PAYMENT CHARGE 01/19/2010 20100119 422 $18.77 CARDSAFE 1-800-442-0752 01/19/2010 20100119 403 $47.01 PURCHASE *FINANCE CHARGE* 02/16/2010 20100216 402 $35.00 LATE PAYMENT CHARGE 02/19/2010 20100219 403 $48.17 INTEREST CHARGE PURCHASE 03/19/2010 20100319 402 535.00 LATE PAYMENT CHARGE 03/19/2010 20100319 403 549.37 INTEREST CHARGE PURCHASE $2,244.42 Ending Balance Monday, January 10, 2011 Page 5 of 5 VERIFICATION I, EUGENE R. CAMPBELL, ESQUIRE, do hereby verify that I am the attorney for the pleading parties herein, and that the facts set forth in the foregoing pleading are true and correct to the best of my knowledge, information and belief. Some of the information is known to me personally, and other information has been supplied by the parties. The party is currently outside the jurisdiction of this Court and his signature could not be obtained within the time period required for filing this pleading I understand that false statements made herein are made subject to the penalties of 18 Pa. C. S. A. Section 4904 relating to unsworn falsification to authorities. Dated: 9/12/2011 t Eugene R. Campbell, Esquire IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ALLIANCE CAPITAL MANAGEMENT Plaintiff NO. 11-6546 VS. CIVIL ACTION-LAW GARY JONES CERTIFICATE OF SERVICE I hereby certify that on September 12, 2011, I sent a copy of the Complaint and Praecipe to Enter Appearance to the Defendant, by First Class U.S. Mail, postage prepaid: Gary Jones 98 S. Enola Dr., Apt 1 Enola, PA 17025 Xz??? DATE: September 12, 2011 Eugene R. Campbell, Esq. FILED-OFFICE OF THE PROTHONOTARY 2012 JAIL 17 AM 11: 45 CU PENH Y! VAN A COUNTY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION: Alliance Capital Management, Plaintiff, Vs. Gary Jones, Defendant(s), No. 2011-6546 TYPE OF PLEADING: PLAINTIFF'S RESPONSE TO DEFENDANTS PRELIMINARY OBJECTIONS FILED BY: Thomas Maher, Esq. Alliance Capital Management P.O. Box 751 Greensburg, PA 15601 1-888-236-9114 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA ALLIANCE CAPITAL MANAGEMENT NO. 2011-6546 PLAINTIFF V. CIVIL ACTION GARY JONES DEFENDANT PLAINTIFF'S RESPONSE TO DEFENDANTS PRELIMINARY OBJECTIONS AND NOW, TO WIT, this 13th day of January 2012, comes the Plaintiff, ALLIANCE CAPITAL MANAGEMENT, assignee of Columbus B&T Aspire by and through its attorney Thomas L Maher Esq., and files the following Response to Preliminary Objections First Preliminary Objection Paragraphs 4-7. Plaintiff is not in possession of the original agreement but does aver the defendant engaged in a open ended revolving credit agreement with B&T Aspire to which the Plaintiff is now assignee. Plaintiff has provided an account history of the various transaction the defendant had assented and authorized. Second Preliminary Objection Paragraphs 8-11. For the reasons set forth in the Plaintiff's brief an account stated theory is applicable in this case. Third and Forth Preliminary Objection Paragraphs 12-17: Said objections are not applicable in the instant case as Plaintiff has provided defendant with a complete chain of title and redacted spreadsheet enumerating the defendants account. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA ALLIANCE CAPITAL MANAGEMENT NO. 2011-6546 PLAINTIFF : V. CIVII, ACTION GARY JONES DEFENDANT PLAINTIFFS BREIF IN OPPOSITION TO DEFENDANTS PRELIMINARY OBJECTIONS AND NOW, TO WIT, this 13'h day of January 2012 comes the Plaintiff, Alliance Capital Management, assignee of B&T Aspire by and through its attorney, Thomas L Maher Esq., and files the following Brief in Opposition to Preliminary Objections as a statement herein: I. PROCEDUREAL HISTORY AND STATEMENT OF FACTS: Plaintiff initiated the above captioned action by filing a Complaint against the Defendant for a defaulted line of credit On or about December 9 h 2011 Defendant filed Preliminary Objections to said Complaint. Plaintiff is request that Defendants Preliminary Objections be dismissed and the case moved forward to discovery and arbitration, or alternatively, Plaintiff be allowed a reasonable period of time to cure any defects in its Complaint by preparing and filing an Amended Pleading. The facts of the present matter are that Defendant was issued an open ended credit line by B&T Aspire. Defendant has been, at all times relevant material hereto, a regular user of said charge card for the purchase of products, goods and/or for obtaining services or funds. Attached as exhibits in Plaintiffs Complaint Defendant was provided with Bills of Sale for said account, a redacted list of accounts sold to the Plaintiff, and a complete transaction history showing all debits and credits for transactions on the aforementioned credit card. II. 1028(a)(3) - Insufficient Sppcificity in a Pleading in Pennsylvania, a preliminary objection may be filed on the ground of insufficient specificity in a pleading. Pa.R.Civ.P. 1028(a)(3). "[T]he pertinent question under Rule 1028(a)(3) is `whether the complaint is sufficiently clear to enable the defendant to prepare his defense', or, `whether the plaintiff's complaint informs the defendant with accuracy and completeness of the specific basis on which recovery is sought so that he may know without question upon what grounds to make his defense."' Rambo v. Greene, 906 A.2d 1232,1235 (PA.Super.2006). Essentially, the objection requires a court to consider whether the plaintiff has complied with Rule 1019, "Contents of Pleadings, General and Specific Averments." A. The Requirement of Rule 1019 Subdivisions (a), (h), and (I) Rule 1019 (a) prescribes that "the material facts on which a cause of action or defense is based shall be stated in a concise and summary form." Pa.R.Civ.P 1019(a). Recently, our Supreme Court stated, "We have construed this rule to mean that the complaint must not only apprise the defendant of the claim being asserted, but it must also summarize the essential facts to support the claim." Steiner v. Markel, 968 A.2d 1253, 1260 (Pa.2009)(citing Landau v W Pa Nat'l Bank 282 A.2d 335 (Pa.1971)). Specifically, the Landau Court stated that "the purpose of the rule is to require the pleader to disclose the `material facts, sufficient to enable the adverse party to prepare his case." 282 A.2d at 339 (citing Smith v Allegheny County, 155 A.2d 615 (Pa.1959)). At least since 1959, "it has not been necessary nor desirable that particularities of evidential fact be pleaded, so long as the essential facts to support a claim are." 155 A.2d 616. Accordingly, Pennsylvania law clearly establishes that there is a difference between "matters of evidence" and "essential facts to be pleaded in the complaint" Id. at 617. B. Rule 2002, Real Parties in Interest Rule 2002 provides, in pertinent part, that "all actions shall be prosecuted by and in the name of the real parry in interest." Pa.R.Civ.P. 2002. The Superior Court considered Rule 2002 application in Brown v. Esposito, 42 A.2d 93 (Pa. Super. 1945) In Brown, the Superior Court noted that the rule "[p]ermits an assignee to sue in his own name without joining the assignor as a nominal parry" if and only if it" traces in the pleading the derivation of the cause of action from its assignor." 42 A.2d 93. Specifically the Brown Court stated, "[T]he derivation of the title to the cause of action must be alleged affirmatively as a fact, so that the defendant may require proof of the assignment if her so desires." Id. at 94. "This protection must be afforded the defendant" the Brown Court held; "otherwise, the defendant might find himself subjected to the same liability to the original owner of the cause of action, in the event that there was no actual assignment." Id. In Brown, the plaintiff had averred that it was the real party in interest because the contract "had been lawfully and duly assigned to the plaintiff." Id. at 93-94. However, it had not done so in a pleading. Id. The Court noted that the plaintiff was "not required to set out the assignment verbatim or attach a copy of the assignment as an exhibit to the pleadings." Id. (emphasis added). However, it did need to make "an affirmative allegation of fact in a pleading, susceptible of proof' Id, at 94. Accordingly the court held that the averment "[was] insufficient upon which to base the plaintiffs claim against defendant" because it had "failed to allege the assignment in any pleading." Id at 94 The Superior Court case of Giuliana comports with the Supreme Court case of Brown. As the Allegheny County court in Worldwide Asset Purchasing LLC v Stern noted, the Guuliana Court stated that "the preliminary objections of [the plaintiff] based on failure to produce a cardholder agreement and statement account, as well as evidence of the assignment, establishes a meritorious defense." Stern, 153 P.L.J. at 111 (quoting 829 A.2d at 345 (emphasis added)). Concerning the real party in interest, the Giuliana Court did not hold that the complaint was insufficient solely because the assignment contracts had not been attached. The plaintiff's failure to provide any "evidence of the assignment" also considered the fact that the complaint had not been properly verified. Id at 344-45. Further, even if Rule 2002 were not controlling, Rule 1019 does not require the agreements establishing that the plaintiff is the real party in interest to be attached to the complaint. Rule 1019 subdivision (h), its not, and subdivision (I) provide: (h) When any claim or defense is based upon an agreement, the pleading shall state specifically if the agreement is oral or written Note: If the agreement is in writing, it must be attached to the pleading. See subdivision (i) of this rule. (i) When any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient to state, together with the reason, and to set forth the substance in writing. Pa.R.Civ.P. 1019(h)-(i). Accordingly, Rule 1019 requires the real party in interest (whether it be the initial credit card issuer or a subsequent assignee) to state specifically whether the agreement upon which the claim is based is oral or written. The rule is not concerned with the agreement upon which the "derivation of the title to the [claim] " is based. Brown, 42 A.2d at 94; see also Foster v. Peat Marwick Main & Co., 587 A.2d 383, 387 (Pa.Cmwlth.1991)(noting the distinction between "documents [that] may constitute important evidence in the litigation" and "documents which created the legal obligations [that the defendant] is said in the complaint to have breached" (emphasis in original)). To the extent that the agreement that subdivision (h) considers is written, it must be attached to the pleading, pursuant to subdivision (i). PaR.Civ.P. 1019(h)(note). Subdivision (i) simply provides that the real party in interest is to attach a copy of the agreement if it is accessible to it. Giuliana comports with this point: the Superior Court remanded for the trial court to sustain "the second preliminary objection" regarding the plaintiff s "failure to attach to the complaint any writing evidencing any contract between [the assignor] and [the defendant] as required by Pa.R.C.P. 1019" 839 A.2d at 343. Certainly, an assignee-creditor-plaintiff has the option of proving that it is the real party in interest by attaching to the complaint the documents that establish iits title to the cause of action. However, our state does not utilize a proof-pleading scheme; it is well established that "Pennsylvania utilizes a fact pleading scheme." Gates v. Gates, 9671 A.2d 1024, 1030-31 (Pa.Super.2009)(emphasis added). Cases in which a plaintiff seeks to recover credit card debt are no different in terms of pleading.. If the legislature wants more form the assignee-creditor than other plaintiffs, it is free to prescribe additional rules. A perusal of the table of Pennsylvania's Rules of Civil Procedure, however, displays that it has not yet done so. In the instant case, Plaintiff would respectfully request that this Court hold that the complaint is sufficiently clear to enable the Defendant to prepare a defense. II. ACCEPTANCE OF A CREDIT CARD AGREEMENT Beyond the evidence attached to Plaintiff's Complaint a court may look to the conduct of the parties to ascertain acceptance of an agreement when assessing its validity, and need not require a signature to establish its enforceability unless such signing is expressly required by law or intent of the parties. See Hartman v. Baker 722 A.2d 347 (Pa Super.2000); See also Accu-Weather, Inc. v Thomas Broadcasting, 627 A.2d 75, 78 (Pa.Super 1993). Further, when an individual is issued a credit card account, said individual is sent a copy of a cardholder agreement and/or term and conditions along with said credit card. In order to become bound by said credit card agreement, the individual need not physically sign said agreement, but instead, such as in the present matter, the individual can become bound to the terms of said credit card agreement by virtue of their maintenance and use of that card. In regards to the dates that must be pled, Rule 1019(f) provides, in pertinent part, that "averments of time .... shall be specifically stated." PA.R.Civ.P. 1019(f). In General State Authority v. Larie and Green, 356 A.2d 851 (Pa.Cmwlth.1976) the Commonwealth Court considered a preliminary objection testing the sufficiency of a complaint in regards to "the specificity of times averred" under Rule 1019(f). Id at 855-56. It set out, "In every instance the allegation of time when the cause of action accrued must be sufficiently specific to enable the defendant to plead the statute of limitations if applicable." Id. at 855 (quoting Baker v. Rangos, 324 A.2d 498, 509-10 (Pa.Super.1974)). In the Baker case; The Court was concerned with the pleading of the last acts taken pursuant of a conspiracy enabling the defendant to know if the statute of limitations barred the actions. Since the statute of limitations does not begin to run in a conspiracy case until the last act of conspiracy, the Court reasoned that sufficient facts relating to the time has been pleaded and strictures of PA.R.C.P. No. 1019(f) had been met. Id. The Lawrie and Green Court went on to hold that the plaintiff needed to include the dates that "would give [the] defendants some idea of whether a limitation of action defense were indeed available." Id; accord Stilp v Commonwealth, 910 A.2d 775, 787 (Pa.Cmwlth.2006). The typical credit card agreement requires a debtor to make minimum monthly payments. Due to the unique nature of such agreements, a debtor is typically able to remedy a default in January, for example, by paying the minimum balance due for February plus the late fee for January. In such cases, January's default (along with the creditor's breach of contract claim) is effectively rendered moot when the debtor remedies it by paying the minimum balance due for February. If the debtor does not remedy January's default in February, she usually will b e able to remedy the defaults of both in March. Accordingly, a debtor who consecutively fails to pay continually breaches the credit card agreement that requires monthly payments. Nonetheless, eash statement provides her with a new opportunity to remedy her breaches. That being said, the cause of actions accrues when the creditor no longer provides the debtor with this opportunity, e.g., when the creditor closes out the account and employs a third party to recovery the amount due. Plaintiff respectfully requests that this Court find that its complaint seeking damages for the breach of a credit card agreement satisfies Rule 1019 in regards to subdivision (f)'s requirement that tie be specifically averred so long as the "defendant [has] some idea of whether a limitation of action defense [is] indeed available." Id. In the instant case, Plaintiff has satisfied this rule. Plaintiffs pled the specific date on which the alleged breach occurred and further provided evidence that substantiates the allegation by attaching an account statement regarding account transactions. These statements display that Defendants account was in breach and this instant suit is within any applicable statute of limitations. All of the material facts on which Plaintiff's cause of action are based are stated in a concise and summary form pursuant to Pennsylvanian Rule of Civil Procedure 1019(I), as it should be clear to Defendant as to what causes of action Plaintiff is attempting to recover under, and it should also be clear to Defendant which evidence Plaintiff is relying on in support of said cause of action. Defendant should be more that able to draft a suitable answer or response to Plaintiff's Complaint. Therefore, Defendant has been specifically notified of the underlying basis of Plaintiffs cause of action, and Plaintiff's Complaint should not be dismissed for failure to set forth a sufficient claim upon which to base a claim for damages against Defendant. III. PROOF REQUIREMENTS IN BREACH OF CONTRACT To establish a cause of action for breach of contract in Pennsylvania, the plaintiff Must plead : "(1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages." CoreStates Bank N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa.Super 1999)(citing GenState Auth v Coleman Caple and Wire Co., 265 A.2d 1347, 49(Pa.Cmwlth.1976)) "While not every term of a contract must be stated in complete detail, every element must be specifically pleaded." Id. (citing Snaith v Snaith, 422 A..2d 1379, 82 (Pa. Super. 1980). In regards to the first element, "it is settled law that the offeror is master of his offer and his provision as to time, place and manner or mode of acceptance must be complied with." Van Schoiack v US Liability Ins. Co., 122 A.2d 509, 514 (Pa.1957). Although the passage of time has provided the offeror with new ways to master his offer, this traditional principle of contract law still applies. For example, in Feldman v Google, Inc., 512 F.Supp.2d 229 (E.D. Pa.2007) an advertiser on a n internet website sued the website operator for allegedly overbilling him. At issue was the enforceability of a forum selection clause in a contract into which the parties entered over the internet. Id at 231. Specifically, "the type of contract at issue... [was] commonly referred to as a `clickwrap' agreement.... [which] appears on an internet webpage and requires that a user consent to any terms and conditions by clicking on a dialog box on the screen in order to proceed with the internet transactions." Id. at 236 (citations omitted). The Feldman court stated: To determine whether a clickwrap agreement is enforceable, courts presented with the issue apply traditional principles of contract law and focus on whether the [offeree] had reasonable notice of and manifested assent to the clickwrap agreement. Absent a showing of fraud, failure to read an enforceable clickwrap agreement, as with any binding contract will not excuse compliance with its terms. Id. (emphasis added). Then, it considered Plaintiff's argument that "he did not have notice or knowledge of the forum selection clause, and therefore that there was no `meeting of the minds' required for contract formation." Id. at 236-38 The Feldman court rejected this argument stating: The [clickwrap] agreement gave reasonable notice of its terms. In order to activate an account, the user had to visit a webpage which displayed the agreement in a scrollable text box... [which] was immediately visible to the user, as was a prominent admonition in boldface to read the terms and conditions carefully and with instructions to indicate assent if the user agreed to the terms. Id. at 237. It concluded: A reasonably prudent internet user would have known of the existence of terms in the agreement. [The) plaintiff indicated assent to the terms. Therefore, the requirements of a n express contract for reasonable notice of terms and mutual assent are satisfied. Plaintiff's failure to read the agreement, if that were the case, does not excuse him from being bound by his express agreement. Id. at 238 In regards to credit card agreement, typically, an offeree receives a credit card issuer's offer in the mail, which consists of the nature of the agreement, i.e., the terms of the offer, and, perhaps, the credit card itself (the offeree may have invited the credit card issuer to make this offer by filling out a credit card application or the offeror may have made the offer of its own volition). Once the offeree is in possession of the credit card, he has the option of accepting the offer. Many times, using the credit card to make a purchase constitutes acceptance. SO long as the credit card user "had reasonable notice of and manifested assent" to the credit card agreement, he or she is bound by its terms because the credit card issuer's "provision as to time, place and manner or mode of acceptance must be complied with" Feldman, 513 F.Supp.2d 299,236; Van Schoiack 122 A.2d at 514. In the present case the Plaintiff has alleged that the Defendant was granted a revolving open ended credit card account. Further the Plaintiff avers that the Defendant accepted the terms and conditions of the revolving credit account by using the credit card to make purchases and/or to obtain cash advances. Plaintiff went a step further by providing evidence to substantiate this allegation by attaching account/history showing use of the card. Plaintiff would respectfully request that this court find that is has sufficiently complied with this first element of contract formation and, more specifically, sufficiently plead "the existence of a contract," and by attaching a copy of the entire written account agreement that Defendant allegedly received, Plaintiff has "included its essential terms" CoreStates Bank, 723 A.2d at 1058. Plaintiff would also respectfully request that this court find that the final two elements are also satisfied as Plaintiff, in its Complaint, has plead that the contract was breached by defendant not making payment when they became due which was a breach of defendant obligation under the contract. Finally, Plaintiff has also pled the "resultant damages" of the principle balance due plus the interest that it has accrued. 723 A.2d at 1058 (citing 365 A.2d at 1349); III. CONCLUSION: Considering the foregoing, it is clear that Plaintiffs Complaint alleges a valid cause of action against Defendant. Defendant Preliminary Objections are without merit and, therefore, should be denied. If Defendant" Preliminary Objections are sustained Plaintiff request 90 days to file an Amended Complaint. Respectfully Submitted, By Thomas L Maher Esq #207970 Attorney for Plaintiff Alliance Capital Management IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA ALLIANCE CAPITAL MANAGEMENT : NO. 2011-6546 PLAINTIFF V. CIVIL, ACTION GARY JONES DEFENDANT CERTIFICATE OF SERVICE The undersigned does hereby certify that I served a copy of the foregoing Brief in Opposition to Preliminary Objections upon Defendant's attorney Michael Pykosh 2132 Market St Camp Hill, PA 17011, by First Class Mail, Postage Pre-Paid, a copy thereof on this 13'' day of January 2012 Respectfully Submitted, By Thomas L M er Esq #207970 Attorney for Plaintiff Pro Credit Solutions CplAL PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Argument Court.) CAPTION OF CASE (entire caption must be stated in full) Alliance Capital Management vs. Gary Jones (List the within matter for the next --------------- - ; --------------------- - "C ;ZZ . r, - r < = {.? 73 2011 6546 Term - No. 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): ARBITRATION - CREDIT CARD DEFAULT 2. Identify all counsel who will argue cases: (a) for plaintiffs: Thomas L. Maher (Name and Address) PO;Box 751 Greensburg, PA 15601 (b) for defendants: Michael J. Pykosh (Name and Address) 2132 Market Street Camp Hill, PA 17011 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Date:.1.5/30/12 Signature / 0"OT rlo--Lr- s? . Print your name Alliance Capital Management Attorney for INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 14 days prior to argument. 3. The responding party shall file their brief 7 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. 41q.15 pA Arn/ cit gdlfq Q+1a74PO78 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY:, (List the within matter for the next , Argument Court.) - t? -------------------------------------------------------------------------------------------------------------------- CAPTION OF CASE rv - `' -: (entire caption must be stated in full) cf ? s _.ti F=T' Alliance Capital Management _ ; vs. wC: - r Gary Jones --. Cn No. 2011 6546 Term ' 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): ? ?Or- ARBITRATION -CREDIT CARD DEFAULT rt" 171 i,? er p J 2. Identify all counsel who will argue cases: (a) for plaintiffs: Thomas L. Maher (Name and Address) PO;Box 751 Greensburg, PA 15601 (b) for defendants: Michael J. Pykosh (Name and Address) 2132 Market Street Camp Hill, PA 17011 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: nil Date:'-.5/30/12 Signature'' Print your name Alliance Capital Management Attorney for 41) - 583. 3?)3 INSTRUCTIONS: " 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. _-.2.__T_he-moving party shall file and serve their brief 14 days prior to argument. 3,_ The responding party shall file their brief 7 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ___._._. ADMINISTRATOR (not the Prothonotary) after the case is relisted. IN THE COURT OF COMMON PLEAS OF CUMBERLAND (?OU b-bi PENNSYLVANIA ` IF 711E PR04 7012 JUL 12 1 CUMBERLAND CIVIL DIVISION: PENNSYLY ALLIANCE CAPITAL MANAGEMENT, Plaintiff, Vs. TYPE OF PLEADING: RESPONSE GARY JONES, Defendant(s), CASE NO.: 2011-6546 Filed on behalf of: ALLIANCE CAPITAL MANAGEMENT Counsel of record: Thomas L. Maher, Esq. P.O. Box 582 Greensburg, PA 15601 (888)-793-3238 PA ID # 207970 OTARY 1. 11 UANTY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ALLIANCE CAPITAL MANAGEMENT, Plaintiff, ) vs. ) CASE NO.: 2011-6546 GARY JONES ) Defendant(s), ) PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANTS PRELIMINARY OBJECTIONS AND NOW, TO WIT, this 5t' day of July 2012 comes the Plaintiff, ALLIANCE CAPITAL MANAGEMENT, by and through its attorney, Thomas L Maher Esq., and files the following Brief in Opposition to Preliminary Objections as a statement herein: I. Addressing Defendants Objection to Standing: Defendant's objections relating to standing are unfounded. Plaintiff has attached to his complaint several documents including a bill of sale and an enumeration of accounts sold showing the Defendant's specific account as being purchased by the Plaintiff. 2. Addressing Defendant's Objection to Essential Elements of an Action The plaintiff in its original complaint avers breach of contract and attaches documents showing said breach in the form of the defendants credit card statements, these documents reiterate the terms of the contract repeatedly thus defendnat's objection is unfounded. 3. Addressing Defendant's objection regarding failure to conform to a rule of law / to attach and failure to plead with specificity: Plaintiff has attached every pertinent document to its complaint that shows the issuance of a line of credit to the defendants, his later default, and the accounts sale to the Plaintiff. PLAINTIFFS BREIF IN OPPOSITION TO DEFENDANTS PRELIMINARY OBJECTIONS 1. PROCEDUREAL HISTORY AND STATEMENT OF FACTS: Plaintiff initiated the above captioned action by filing a Complaint against the Defendant for a defaulted line of credit. Defendant then filed Preliminary Objections to said Complaint. Plaintiff is request that Defendants Preliminary Objections be dismissed and the case moved forward to discovery and arbitration, or alternatively, Plaintiff be allowed a reasonable period of time to cure any defects in its Complaint by preparing and filing an Amended Pleading. Attached as exhibits in Plaintiffs Complaint, Defendant was provided with Bills of Sale for said account tracing the sale of this account to the Plaintiff, credit card statements, and 'various other documents relaying the essential terms to this contract. II. 1028(a)(3) - Insufficient Specificity in a Pleading - Real Parties in Interest - Lack of Capacity In Pennsylvania, a preliminary objection may be filed on the ground of insufficient specificity in a pleading. Pa.R.Civ.P. 1028(a)(3). "[T]he pertinent question under Rule 1028(a)(3) is `whether the complaint is sufficiently clear to enable the defendant to prepare his defense', or, `whether the plaintiff's complaint informs the defendant with accuracy and completeness of the specific basis on which recovery is sought so that he may know without question upon what grounds to make his defense."' Rambo v. Greene, 906 A.2d 1232,1235 (PA.Super.2006). Essentially, the objection requires a court to consider whether the plaintiff has complied with Rule 1019, "Contents of Pleadings, General and Specific Averments." A. The Requirement of Rule 1019 Subdivisions (a), (h), and (I) Rule 1019 (a) prescribes that "the material facts on which a cause of action or defense is based shall be stated in a concise and summary form." Pa.R.Civ.P 1019(a). Recently, our Supreme Court stated, "We have construed this rule to mean that the complaint must not only apprise the defendant of the claim being asserted, but it must also summarize the essential facts to support the claim." Steiner v. Markel, 968 A.2d 1253, 1260 (Pa.2009)(citing Landau v W.Pa Nat'l Bank, 282 A.2d 335 (Pa.1971)). Specifically, the Landau Court stated that "the purpose of the rule is to require the pleader to disclose the `material facts' sufficient to enable the adverse parry to prepare his case." 282 A.2d at 339 (citing Smith v Allegheny County, 155 A.2d 615 (Pa.1959)). At least since 1959, "it has not been necessary nor desirable that particularities of evidential fact be pleaded, so long as the essential facts to support a claim are." 155 A.2d 616. Accordingly, Pennsylvania law clearly establishes that there is a difference between "matters of evidence" and "essential facts to be pleaded in the complaint" Id. at 617. B. Rule 2002, Real Parties in Interest Rule 2002 provides, in pertinent part, that "all actions shall be prosecuted by and in the name of the real party in interest." Pa.R.Civ.P. 2002. The Superior Court considered Rule 2002 application in Brown v. Esposito, 42 A.2d 93 (Pa. Super. 1945) In Brown, the Superior Court noted that the rule "[p]ermits an assignee to sue in his own name without joining the assignor as a nominal party" if and only if it" traces in the pleading the derivation of the cause of action from its assignor." 42 A.2d 93. Specifically the Brown Court stated, "[T]he derivation of the title to the cause of action must be alleged affirmatively as a fact, so that the defendant may require proof of the assignment if her so desires." Id. at 94. "This protection must be afforded the defendant" the Brown Court held; "otherwise, the defendant might find himself subjected to the same liability to the original owner of the cause of action, in the event that there was no actual assignment." Id. In Brown, the plaintiff had averred that it was the real party in interest because the contract "had been lawfully and duly assigned to the plaintiff." Id. at 93-94. However, it had not done so in a pleading. Id. The Court noted that the plaintiff was "not required to set out the assignment verbatim or attach a copy of the assignment as an exhibit to the pleadings. " Id.` (emphasis added). However, it did need to make "an affirmative allegation of fact in a pleading, susceptible of proof' Id, at 94. Accordingly the court held that the averment "[was] insufficient upon which to base the plaintiffs claim against defendant" because it had "failed to allege the assignment in any pleading." Id at 94 The Superior Court case of Giuliana comports with the Supreme Court case of Brown. As the Allegheny County court in Worldwide Asset Purchasing LLC v Stern noted, the Guiliana Court stated that "the preliminary objections of [the plaintiff] based on failure to produce a cardholder agreement and statement account, as well as evidence of the assignment, establishes a meritorious defense." Stern, 153 P.L.J. at 111 (quoting 829 A.2d at 345 (emphasis added)). Concerning the real party in interest, the Giuliana Court did not hold that the complaint was insufficient solely because the assignment contracts had not been attached. The plaintiff's failure to provide any "evidence of the assignment" also considered the fact that the complaint had not been properly verified. Id. at 344-45. Further, even if Rule 2002 were not controlling, Rule 1019 does not require the agreements establishing that the plaintiff is the real party in interest to be attached to the complaint. Rule 1019 subdivision (h), its not, and subdivision (I) provide: (h) When any claim or defense is based upon an agreement, the pleading shall state specifically if the agreement is oral or written Note: If the agreement is in writing, it must be attached to the pleading. See subdivision (i) of this rule. (i) When any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient to state, together with the reason, and to set forth the substance in writing. Pa.R.Civ.P. 1419(h)-(i). Accordingly, Rule 1019 requires the real party in interest (whether it be the initial credit card issuer or a subsequent assignee) to state specifically whether the agreement upon which the claim is based is oral or written. The rule is not concerned with the agreement upon which the "derivation of the title to the [claim j " is based. Brown; 42 A.2d at 94; see also Foster v. Peat Marwick Main & Co., 587 A.2d 383, 387 (Pa.Cmwlth.1991)(noting the distinction between "documents [that] may constitute important evidence in the litigation" and "documents which created the legal obligations [that the defendant] is said in the complaint to have breached" (emphasis in original)). To the extent that the agreement that subdivision (h) considers is written, it must be attached to the pleading, pursuant to subdivision (i). PaR.Civ.P. 1019(h)(note). Subdivision (i) simply provides that the real party in interest is to attach a copy of the agreement if it ? is accessible to it. Giuliana comports with this point: the Superior Court remanded for the trial court to sustain "the second preliminary objection" regarding the plaintiff's "failure to attach to the complaint any writing evidencing any contract between [the assignor] and [the defendant] as required by Pa.R.C.P. 1019" 839 A.2d at 343. Certainly, an assignee-creditor-plaintiff has the option of proving that it is the real party in interest by attaching to the complaint the documents that establish fits title to the cause of action. However, our state does not utilize a proof-pleading scheme; it is well established that "Pennsylvania utilizes a fact pleading scheme." Gates v. Gates, 9671 A.2d 1024, 1030-31 (Pa.Super.2009)(emphasis added). Cases in which a plaintiff seeks to recover credit card debt are no different in terms of pleading.. If the legislature wants more form the assignee-creditor than other plaintiffs, it is free to prescribe additional rules. A perusal of the table of Pennsylvania's Rules of Civil Procedure, however, displays that it has not yet done so. In the instant case, Plaintiff would respectfully request that this Court hold that the complaint is sufficiently clear to enable the Defendant to prepare a defense. III. CONCLUSION: Considering the foregoing, it is clear that Plaintiff's Complaint alleges a valid cause of action against Defendant. Defendant Preliminary Objections are without merit and, therefore, should be denied. If Defendant" Preliminary Objections are sustained Plaintiff request 90 days to file an Amended Complaint. Respectfully Submitted, ft" " t., By Thomas L Maher Esq #207970 Attorney for Plaintiff ALLIANCE CAPITAL MANAGEMENT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ALLIANCE CAPITAL MANAGEMENT, ) Plaintiff, ) Vs. ) CASE NO.: 2011-6546 GARY JONES ) Defendant(s), ) CERTIFICATE OF SERVICE The undersigned does hereby certify that I served a copy of the foregoing Brief in Opposition to Preliminary Objections upon Defendants attorney at the below address this the 9t' day of July 2012 Michael Pykosh Esq 2132 Market St Camp Hill PA 17011 Respectfully Submitted, By Thomas L Maher Esq #207970 Attorney for Plaintiff ALLIANCE CAPITAL MANAGEMENT ALLIANCE CAPITAL IN THE COURT OF COMMON PLEAS OF MANAGEMENT, CUMBERLAND COUNTY, PENNSYLVAf IA PLAINTIFF V. GARY JONES, DEFENDANT 11-6546 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTION BEFORE HESS, P .J., MASLAND, J. AND PECK, J. ORDER OF COURT AND NOW, this day of July, 2012, upon consideration of the preliminary objection filed by Defendant, Gary Jones, briefing by the parties, and argument en banc, the preliminary objections are SUSTAINED. Plaintiff failed to attach a purported cardholder agreement to the Complaint preferring to sue on an account stated theory. The averments in Plaintiffs Complaint are insufficient to establish such a claim, and therefore the absence of a cardholder agreement is fatal. Atlantic Credit and Finance, Inc. v. Giuliana, 829 A.2d 340 (Pa. Super. 2003). Plaintiffs Complaint is DISMISSED without prejudice to its right to file an Amended Complaint within twenty (20) days of the entry of this order. By the Court, Thomas L. Maher, Esquire For Plaintiff Michael J. Pykosh, Esquire For Defendant Albert H. Masland, J :saa f?'1 )> N Q N C- t"-' Fri ., CD 7117//d ,4ell? m co Michael J. Pykosh, Esquire ID # 58851 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone - (717) 975-9446 Fax - (717) 975-2309 MPykosh(adplglaw.com Attorney for Defendant ALLIANCE CAPITAL MANAGEMENT, : COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVA" Plaintiff C ° -v3 V. C_- No: 2011-6546 GARY JONES, Civil Action - Laws „ Defendant c-- ? w MOTION FOR JUDGMENT PURSUANT TO Pa. R.C.P. 1037(c) AND NOW, comes the Defendant, Gary Jones, by and through its counsel the Dethlefs-Pykosh Law Group, LLC, by Michael J. Pykosh, Esquire, who avers the following in support of for Judgment pursuant to Pa. R.C.P. 1037(c): 1. On September 13, 2011, Plaintiff filed a Complaint at Docket Number 11-6546 alleging that Defendant owed Plaintiff two thousand two hundred forty-four and 42/100 ($2,244.42) dollars. 2. On December 12, 2011, Defendant filed Preliminary Objections to Plaintiff's Complaint. Plaintiff, in response thereto, filed a Response on or about January 13, 2012. 3. On July 16, 2012, this Honorable Court decided said Preliminary Objections on Briefs with Oral Argument. Plaintiff was ordered to file an Amended Complaint within twenty (20) days (see Order of Court dated July 16, 2012, attached as Exhibit "A" and made apart hereof). Q -2- 4. More than twenty (20) days from said Order of Court have lapsed and Plaintiff has failed to file the Amended Complaint. WHEREFORE, Defendant, Gary Jones, respectfully requests that this Honorable Court dismiss the Plaintiff's Complaint with Prejudice. Date: Respectful Submitted, , A/ ? Michael J. Pykosh, Esquire I. D. # 58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 975-9446 Attorney for Defendant - 3 - ALLIANCE CAPITAL MANAGEMENT, PLAINTIFF V. GARY JONES, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANI 11-6546 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTION BEFORE HESS, P.J., MASLAND, J. AND PECK. J. ORDER OF COURT Zi AND NOW, this Oday of July, 2012, upon consideration of the preliminary objection filed by Defendant, Gary Jones, briefing by the parties, and argument en banc, the preliminary objections are SUSTAINED. Plaintiff failed to attach a purported cardholder agreement to the Complaint preferring to sue on an account stated theory. The averments in Plaintiff's Complaint are insufficient to establish such a claim, and therefore the absence of a cardholder agreement is fatal. Atlantic Credit and Finance, Inc. v. Giuliana, 829 A.2d 340 (Pa. Super. 2003). Plaintiff's Complaint is DISMISSED without prejudice to its right to file an Amended Complaint within twenty (20) days of the entry of this order. By the Court, Thomas L. Maher, Esquire For Plaintiff Michael J. Pykosh, Esquire For Defendant Albert H. Masland, J. saa - ? C7J EX MR T Michael J. Pykosh, Esquire ID # 58851 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone - (717) 975-9446 Fax - (717) 975-2309 MPvkoshCu?dplglaw co_m Attorney for Defendant ALLIANCE CAPITAL MANAGEMENT, COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. GARY JONES, No: 2011-6546 Civil Action - Law Defendant CERTIFICATE OF SERVICE hereby certify that a copy of the foregoing Defendant's Motion for Judgment pursuant to Pa. R.C.P. 1037(c), was hereby served by depositing the same within the custody of the United States Postal Service, First Class, postage prepaid, addressed as follows: Alliance Capital Management c/o Thomas L. Maher, Esquire P.O. Box 582 Greensburg, PA 15601 Date: Z Respectfully Submitted, Michael J. Pykosh, Esquire I.D. # 58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 975-9446 Attorney for Defendant 4 :~, P-~uP-rvct cA~iTAt_ MANAGEMENT, :COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v• No: 2011-6546 GARY JONES, Civil Action -Law =~~', ~~~-, • ~r- Defendant ~~ ~` • ,-- ~" C^.• 3 ORDER ~~' a? AND NOW, this ~~ day of ~ ocr~ , 2012, it is hereby ORDERED and DECREED that the Prothonotary enter Judgment in favor of Defendant and against Plaintiff and that Plaintiff s Complaint hereby be DISMISSED with Prejudice. Pursuant to the requirements of Pa. R.C.P. 236(a)(2), (b), (d), the Prothonotary shall immediately give written notices of entry of the Order, including a copy of this Order, to each party's attorney of record, or if unrepresented, to each party; and shall note in the docket the giving of such notices and time and manner thereof. BY COUR J. Distribution Legend: m~cnaei J. Pykosh, Esquire Thomas L. Maher, Esquire 2132 Market Street P.O. Box 751 Camp Hill, Pennsylvania 17011 Greensburg, PA 15601 nn(717)975-9446 (888)793-3238 1:.0 1'f.~S /'Yl.S.L ~ . -1- $ l~[ ~~~ ~' M r ._ --~ x -~- ~~, r:~ -~, ~. ~ ~~ T-r; C~ "'"t 3 ~~ -.