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HomeMy WebLinkAbout11-7507 f = Hubert X. Gilroy, Esquire r - a F Attorney I.D. No. 29943 ?t ca i Katie J. Maxwell, Esquire :- Attorney I.D. No. 206018 T - = `- MARTSON DEARDORFF WILLIAMS OTT O GILROY & FALLER MARTSON LAW OFFICES - 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff LIBERATOR PERFORMANCE SALES & : IN THE COURT OF COMMON PLEAS OF SERVICE, INC., CUMBERLAND COUNTY, PENNSYLVANI A Plaintiff V. EDWARD ANDRESCAVAGE, Defendant NO. 11 - 7,56 -)CIVIL TERM 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 00 dy Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 ???? \\Mdwo02\sys\FILES\Clients\12591 Liberator Perfomance\Edward Andrescavage\12591.3.com\mam Hubert X. Gilroy, Esquire Attorney I.D. No. 29943 Katie J. Maxwell, Esquire Attorney I.D. No. 206018 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff LIBERATOR PERFORMANCE SALES & : IN THE COURT OF COMMON PLEAS OF SERVICE, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. EDWARD ANDRESCAVAGE, Defendant : NO. 11 - CIVIL TERM COMPLAINT AND NOW, comes the Plaintiff, Liberator Performance Sales and Service, Inc., by and through its attorneys, MARTSON LAW OFFICES, and in support of its Complaint, avers as follows: Plaintiff, Liberator Performance Sales and Service, Inc., a is Pennsylvania corporation with a principal place of business at 1521 Commerce Avenue, Carlisle, Cumberland County, Pennsylvania. 2. Defendant, Edward Andrescavage, is an adult individual with an address of 93 Howard Avenue, Franklinville, New Jersey 08322. 3. Defendant is the owner of a 2004 Ford Excursion ("Vehicle"). 4. Defendant brought the Vehicle to Plaintiff for servicing in August 2010. 5. Plaintiff repaired Defendant's vehicle and issued an invoice in the amount of $10,882.74 for the work performed on the Vehicle. A copy of the invoice is attached hereto as Exhibit "A". 6. Plaintiff has demanded and Defendant has refused to pay the amount due. 7. Plaintiff has fulfilled, performed, and complied with all obligations and conditions for service of the Vehicle. COUNT I - BREACH OF CONTRACT 8. Plaintiff hereby incorporates by reference the averments contained in Paragraphs 1 through 7 of this Complaint. 9. Defendant has breached the expressed and implied obligations, conditions, and terms of the contract by failing to pay the amount due to Plaintiff. WHEREFORE, Plaintiff demands judgment against Defendant Edward Andrescavage in the amount of $10,882.74, plus interest, attorney's fees, and costs of suit. COUNT II - UNJUST ENRICHMENT 10. Plaintiff hereby incorporates by reference the averments contained in Paragraphs 1 through 9 of this Complaint. 11. Having requested Plaintiff to perform service on the Vehicle, and the Plaintiff doing so to the benefit of Defendant, Defendant became liable to Plaintiff for said service. 12. Defendant has been unjustly enriched by accepting said service without paying Plaintiff reasonable compensation. 13. The total amount by which Defendant has become enriched is $10,882.74. WHEREFORE, Plaintiff demands judgment against Defendant Edward Andrescavage in the amount of $10,882.74, plus interest, attorney's fees, and costs of suit. MARTSON LAW OFFICES By: Hubert Troy, Es' I.D. No. 29943 Katie J. Maxwell, Esquire I.D. No. 206018 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: / /3/11 Attorneys for Plaintiff EXHIBIT "A" LIBERATOR PERFORMANCE SALES & SERVICE INC 1521 Commerce Ave Carlisle, Pennsylvania 17015 Phone # 717-2494001 Fax# 717-249-2042 EIN# 25-1873415 Bill To: ANDRESCAVAGE EDWARD 93 HOWARD AVENUE FRANKLINVILLE NJ 08322 Invoice Invoice #: 18373 Invoice Date: 8/18/2010 Due Date: 8/18/2010 Case: P.O. Number: Description Hours/Oty Rate Amount 4C3Z-6054 HEAD GASKET 2 166.00 332.OOT 250-4202 ARP STUDS (CUSTOMER PAYING FOR THIS ITEM) 0.00 O.OOT 3C3Z-9P456-AE EGR COOLER 1 541.80 541.80T 3C3Z-9E527 INJECTOR 1 286.74 286.74T 6C3Z-9433-BE IN-TAKE GASKET 1 121.68 121.68T 6C3Z-9448A EXHAUST GASKET 1 28.10 28.1OT 4C3Z-6K682 FORD TURBO 1 1,332.44 1,332.44T 3C3Z-6A642-CA OIL COOLER 1 300.00 300.OOT 1 FL-201601L FILTER 1 29.00 29.OOT OIL 35.00 35.OOT 1 FD-4616 FUEL FILTER 1 99.98 99.98T TRANSMISSION FLUID 30.00 30.OOT POWER STEERING FLUID 10.00 10.OOT R134/AC 60.00 60.OOT 3C3Z9C407AA FUEL PUMP 1 305.00 305.OOT 3C3Z9E527INJECTOR 7 286.00 2,002.OOT 3C3Z126599AARM FICM 1 708.00 708.OOT CHANGE OIL FILTER CART AN OIL 35.00 35.OOT CHECK HEADS/DECK & GUIDES NEED REPLACED 1,400.00 1,400.OOT R&R TURBO, HEAD GASKET, 1 INJECTOR, AN OIL COOLER. 1,610.00 1,610.OOT CHARGE A/C R&R FICM AND TEST 250.00 250.OOT R&R FUEL PUMP 250.00 250.OOT R&R 7 INJECTORS 500.00 500.OOT MILEAGE-.91504 VIN#1 FMSU43P44EB50629 2004 FORD EXCURSION LABOR RATE IS $70.00 P/H Pa. Sales Tax 6.00% 616.00 It's been a pleasure working with you! Total $10,882.74 Payments/Credits $0.00 Balance Due $10,882.74 CERTIFICATE OF SERVICE I, Shelly R. Brooks, an authorized agent for Manson Law Offices, hereby certify that a copy of the foregoing Complaint was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Mr. Edward Anderscavage 93 Howard Avenue Franklinville, New Jersey 08322 MARTSON LAW OFFICES f B U' Shell A. Brooks Ten st High Street Carlisle, PA 17013 (717) 243-3341 Dated: ? 9/ 90 /? G/ VERIFICATION The foregoing Complaint is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of the document is that of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the document 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. Section 4904 relating to unsworn falsification to authorities, which provides that if I make knowingly false averments, I may be subject to criminal penalties. LIBERATOR PERFORMANCE SALES & SERVICE B Shawn Liberator LIBERATOR PERFORMANCE SALES : IN THE COURT OF COMMON PLEAS OF & SERVICE, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. CIVIL ACTION -LAW C-) No. 2011- 7507 CIVIL TERM m? EDWARD ANDRESCAVAGE Defendant JURY TRIAL DEMANDED om A 1 7 f e a ? t - w - e c:) z r-, >C-) -? NOTICE TO PLEAD You are hereby notified to file a written response to the enclosed Answer with New Matter and Counterclaim within twenty (20) days from service hereof or a judgment may be entered against you. IRWIN & McKNIGHT, P.C. Douglas G#Miller, Esquire Supreme Court I.D. No. 83776 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for Defendant Date: January 3, 2012 LIBERATOR PERFORMANCE SALES & SERVICE, INC., Plaintiff V. EDWARD ANDRESCAVAGE, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 2011- 7507 CIVIL TERM JURY TRIAL DEMANDED ANSWER WITH NEW MATTER AND COUNTERCLAIM TO PLAINTIFF'S COMPLAINT AND NOW this 3'd dday of January, 2012, comes the named Defendant, EDWARD ANDRESCAVAGE, by and through his attorneys, Irwin & McKnight, P.C., and respectfully files this Answer with New Matter and Counterclaim to the Complaint of the Plaintiff, LIBERATOR PERFORMANCE SALIFS & SERVICE, INC., and in support thereof avers as follows: 1. After reasonable investigation, the Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph one (1) of the Plaintiff's Complaint so they are therefore specifically denied and strict proof thereof is demanded at trial. 2. The averments of fact in paragraph two (2) are denied as stated. It is admitted that the address of the named Defendant is 93 Howard Avenue, Franklinville, New Jersey. The remaining averments in paragraph two (2) are specifically denied. 3. The averments of fact in paragraph three (3) are denied as stated. It is admitted that the Defendant is an owner of a 2004 Ford Excursion vehicle. The remaining averments in paragraph three (3) are specifically denied. 4. The averments of fact in paragraph four (4) are denied as stated. It is admitted that at all times relevant hereto, Plaintiff held itself out as a qualified garage competent and authorized to perform motor vehicle repairs in a good and workmanlike manner pursuant to a used vehicle warranty contract. It is further admitted that based upon the Plaintiff's representations to the used vehicle warranty company, Defendant's vehicle was left at Plaintiff's garage located on Spring Road in North Middleton Township. The remaining averments in paragraph four (4), including all inferences that Plaintiff had any contract with the named Defendant, are specifically denied and strict proof thereof is demanded at trial. 5. The averments in paragraph five (5) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. By way of further answer, Plaintiff did not have a contract with the named Defendant, did not repair the vehicle in a good and workmanlike manner, and did not comply with the rules and policies of the applicable used vehicle warranty contract in order to be paid for any authorized repair work. 6. The averments in paragraph six (6) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 7. The averments in paragraph seven (7) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demapded at trial. By way of further answer, Plaintiff did not have a contract with the named Defendant, did not repair the vehicle in a good and workmanlike manner, and did not comply with the rules and policies of the applicable used vehicle warranty contract in order to be paid for any authorized repair work. 2 COUNTI 8. The averments contained in the Answers to paragraphs one (1) through seven (7) of the Plaintiff's Complaint are hereby incorporated by reference. 9. The averments in paragraph nine (9) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. By way of further answer, Plaintiff did not have a contract with the named Defendant, did not repair the vehicle in a good and workmanlike manner, and did not comply with the rules and policies of the applicable used vehicle warranty contract in order to be paid for any authorized repair work. WHEREFORE, the named Defendant respectfully requests that this Honorable Court enter a judgment in his favor and against Plaintiff in this matter, together with attorney fees, costs, and such other and further relief as this Court deems just. COUNT II 10. The averments contained in the Answers to paragraphs one (1) through nine (9) of the Plaintiff s Complaint are hereby incorporated by reference. 11. The averments in paragraph eleven (11) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. By way of further answer, Plaintiff did not have a contract with the named Defendant, did not repair the vehicle in a good and workmanlike manner, and did not comply with the rules and policies of the applicable used vehicle warranty contract in order to be paid for any authorized repair work. 3 12. The averments in paragraph twelve (12) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. By way of further answer, Plaintiff did not have a contract with the named Defendant, did not repair the vehicle in a good and workmanlike manner, and did not comply with the rules and policies of the applicable used vehicle warranty contract in order to be paid for any authorized repair work. 13. The averments in paragraph thirteen (13) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. WHEREFORE, the named Defendant respectfully requests that this Honorable Court enter a judgment in his favor and against Plaintiff in this matter, together with attorney fees, costs, and such other and further relief as this Court deems just. NEW MATTER 14. The averments contained in the Answers to the Complaint are hereby incorporated by reference and are made part of this New Matter to the Complaint of the Plaintiff. 15. At all times relevant hereto, Plaintiff held itself out as a qualified garage competent and authorized to perform motor vehicle repairs in a good and workmanlike manner pursuant to a used vehicle warranty contract. 16. At all times relevant hereto, the 2004 Ford Excursion referenced in the Plaintiff's Complaint was covered by a used vehicle warranty policy. 4 17. Upon information and belief, Plaintiff represented to the used vehicle warranty company that it was competent and able to perform motor vehicle repairs in a good and workmanlike manner pursuant to the terms and conditions of the policy. 18. In fact, Plaintiff did not follow the terms and conditions of the warranty policy and therefore no funds were authorized to be paid to Plaintiff under the policy. 19. Plaintiff's failure to follow the terms and conditions of the warranty policy, include but are not limited to failure to obtain advance authorization for all repair work to be performed, failure to allow inspectors to verify work to be performed, failure to completely itemize the work proposed to be done, failure to provide inspectors with documentation of all parts to be used in any repair work, and failure to allow inspectors to confirm that all repair work was necessary and complete. 20. As a direct result of Plaintiff's failure to follow the terms and conditions of the used vehicle warranty policy, the warranty company refused to issue any partial or full payment to Plaintiff. 21. Plaintiff did not have a written or verbal contract with the named Defendant. 22. Plaintiff's failure to obtain any payment from the used vehicle warranty company was a direct result of Plaintiff's refusal to comply the requirements provided the warranty company. 23. The named Defendant and other members of his family made numerous attempts to contact the Plaintiff's representatives regarding insurance coverage and payment for the subject vehicle. 5 24. The named Defendant and other members of his family also made several return trips to Pennsylvania in order to see the vehicle and speak with Plaintiff's owner or representatives. 25. During those trips, the subject vehicle was not located at the Plaintiffs place of business. 26. The named Defendant subsequently determined that the vehicle had been driven nearly 1,000 miles while in the custody and control of the Plaintiff. 27. Upon information and belief, the subject vehicle was used by the Plaintiff s owner and/or representatives for personal use, and Plaintiff had its promotional materials and advertisements placed all over the vehicle. 28. Upon information and belief, while the vehicle was in the exclusive possession of Plaintiff and being used for personal reasons, significant additional damage was caused by the owner and/or representatives of Plaintiff. 29. Upon information and belief, Plaintiff sought to have criminal charges filed against the named Defendant without disclosing Plaintiffs use of the vehicle and failure to follow the terms and conditions of the used vehicle warranty contract. 30. Plaintiffs Complaint fails to state claims or causes of action upon which relief can be granted. 31. Plaintiff was negligent in its failure to follow the terms and conditions provided by used vehicle warranty company and in its failure to remedy its deficiencies and thereby obtain payment for work that was purportedly performed. 6 32. Plaintiff violated the terms and conditions of any reasonable bailment contract. 33. Plaintiff is further barred from recovery in this matter by the doctrines of unclean hands, unconscionability, illegality, fraud, and estoppel. WHEREFORE, the named Defendant respectfully requests that this Honorable Court respectfully request enter a judgment in his favor and against Plaintiff in this matter, together with attorney fees, costs, and such other and further relief as this Court deems just. COUNTERCLAIM 34. The averments contained in the Answers and New Matter to the Complaint are hereby incorporated by reference and are made part of this Counterclaim to the Complaint of the Plaintiff. 35. At all times relevant hereto, the named Defendant relied upon the promises, assertions, and representations of Plaintiff as to its qualifications as a garage competent and authorized to perform motor vehicle repairs in a good and workmanlike manner pursuant to a used vehicle warranty contract, as an inducement to leave the subject vehicle at Plaintiff's business. 36. In fact, Plaintiff did not follow the terms and conditions of the used vehicle warranty contract or cooperate with the inspectors that came to Plaintiff's business. 37. Plaintiff therefore was denied any payment or coverage by the used vehicle warranty company. 7 38. Plaintiff did not obtain advance authorization for repair work to be performed, did not document the parts to be used, used the vehicle as its own, and caused additional damage to the vehicle that was not present at the commencement of any bailment. 39. The actions and misrepresentations by Plaintiff as identified herein are in direct violation of §§ 201-2(4)(iii), 201-2(4)(v), 201-2(4)(vii), 201-2(4)(xv), 201-2(4)(xvi), and 201- 2(4)(xxi) of the Pennsylvania Unfair Trade Practices and Consumer Protection Law. 40. Under § 201-9.2(a) of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, "[t]he court may, in its discretion, award up to three times the actual damages sustained [...]." 41. Furthermore, the court "may provide such additional relief as it deems just and proper." § 201-9.2(a). 42. Also under § 201-9.2(a), "[t]he court may award to the plaintiff, in addition to other relief provided in this section, costs and reasonable attorney fees." 43. While the vehicle was in the exclusive possession of Plaintiff, its owner, agents, and/or representatives, additional damage was caused to the vehicle, including but not limited to broken seat tracks, broken cowls, and low freon. 44. While the vehicle was in the exclusive possession of the Plaintiff, its owner, agents, and/or representatives drove the vehicle nearly 1,000 miles and placed its own promotional materials over the vehicle. 45. As a direct result of the negligence of the Plaintiff, the named Defendant has incurred out-of-pocket expenses of $966.96 to pay another garage for repairs, and has obtained an estimate for $600.00 to perform additional repairs. 8 46. In addition, the named Defendant has incurred substantial attorney fees to obtain possession of the vehicle and defend Plaintiff's frivolous litigation. 47. Plaintiffs actions in filing this matter and as detailed above are arbitrary, obdurate, vexatious, serving no legitimate purpose, and/or undertaken in bad faith under Pennsylvania law. WHEREFORE, the named Defendant respectfully requests that this Court award damages against the Plaintiff in an amount less than the arbitration amount of Fifty Thousand and no/100 ($50,000.00) Dollars, together with attorney fees, costs and interest as permitted by law and such other and further relief as this Court shall deem fair, just, and proper. Respectfully Submitted, IRWIN & McKNIGHT, P.C. By: 44??z , Vxi?-- Douglas G Miller, Esquire Supreme Court ID No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for Defendant Dated: January 3, 2012 9 VERIFICATION The foregoing document on behalf of the Defendant is based upon information which has been gathered by counsel for the Defendant in the preparation of this document. The statements made in this document are true and correct to the best of the counsel's knowledge, information and belief. The Defendant's verification cannot be obtained within the time allowed for filing the pleading. The undersigned is therefore verifying on behalf of the Defendant according to 42 Pa.C.S.A. § 1024(c)(2). The undersigned understands that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. "A A A J ? I t, Douglas . Miller, Esquire Date: January 3, 2012 CERTIFICATE OF SERVICE I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document upon the persons indicated below by first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: KATIE J. MAXWELL, ESQUIRE 10 EAST HIGH STREET CARLISLE, PA 17013 Date: January 3, 2012 IRWIN & McKNIGHT, P.C. Do as . Miller, Esquire Supreme Court I.D. No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 \Ndwo02\sys\FILES\Ciients\12591 Liberator Perfomance\Edward Andrescmge\12591 1 ans. nm?mam Hubert X. Gilroy, Esquire Attorney I.D. No. 29943 Katie J. Maxwell, Esquire Attorney I.D. No. 206018 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High. Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff rv ? t - rr r'. ) :6. f LIBERATOR PERFORMANCE SALES & : IN THE COURT OF COMMON PLEAS OF SERVICE, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. EDWARD ANDRESCAVAGE, Defendant NO. 11 - 7507 CIVIL TERM PLAINTIFF'S RESPONSE TO NEW MATTER AND COUNTERCLAIM AND NOW, comes the Plaintiff, Liberator Performance Sales and Service, Inc., by and through its attorneys, MARTSON LAW OFFICES, and in support of its Answer to New Matter and Counterclaim, avers as follows: 1-13 . The averments of Paragraphs 1-13 are incorporated by reference. RESPONSE TO NEW MATTER 14. The averments contained in Paragraph 14 of Defendant's New Matter are hereby incorporated by reference. 15. Admitted. 16. Plaintiff is without knowledge to affirm or deny the averments of Paragraph 16. By way of further response, Plaintiff was told by the Defendant that the vehicle was covered under a used vehicle warranty policy. 17. Admitted. 18. Denied. The warranty company offered to pay Plaintiff $3,231 for the work Plaintiff performed on Defendant's vehicle. Defendant was then responsible to pay the remainder of the amount owed, and the warranty company would not pay the $3,231 until the Defendant paid the remaining amount owed on the vehicle. Since the Defendant has failed to pay any amount towards the work performed by Liberator Performance, the warranty company has also refused to pay any amount. 19, Denied. Plaintiff repeatedly contacted the warranty company regarding authorization for work to be performed, allowed the one inspector who came to Plaintiff's shop to fully inspect the vehicle, and at all times provided the warranty company with a list of part numbers and invoices regarding the work to be performed. 20. Denied. The warranty company offered to pay $3,231 towards the work that Plaintiff performed. The warranty company acknowledged that not all of the work performed by the Plaintiff would be covered under the warranty, and that the Defendant would be responsible for the remaining balance. 21. Denied. Plaintiff had a verbal contract with Defendant. The terms of the contract were that Plaintiff would work with the warranty company to seek payment for work performed, but that any amount that the warranty company refused to pay would be covered by Defendant. 22. Denied. By way of further response, the warranty company refused to make any payment to Plaintiff because Defendant would not pay the remaining balance which was required to take possession of the vehicle. 23. Denied. Plaintiff only had contact with Mrs. Andrescavage, and no other member of the Andrescavage family. Plaintiff made repeated efforts to contact Mr. Andrescavage, but only spoke with him on one occasion. Plaintiff was never contacted by any member of the Andrescavage family regarding payment for the vehicle. 24. Plaintiff is without information or belief to confirm or deny the averments of Paragraph 24. By way of further response, Plaintiff never had any face-to-face contact with any member of the Andrescavage family, and upon information and belief, avers that no member of the Andrescavage family visited his shop. 25. Upon information and belief, Plaintiff is without knowledge sufficient to confirm or deny the averments of Paragraph 25. 26. Denied. By way of further response, Plaintiff admits that he did drive the vehicle, but did not drive it 1,000 miles. Plaintiff told Defendant that while the vehicle was in Plaintiffs possession, he would need to drive it to make sure that the vehicle was functioning properly and to diagnose any other potential mechanical problems. 27. Admitted in part and denied in part. It is admitted that Plaintiff placed promotional materials on the vehicle. It is Plaintiff's common practice to have his business's logo placed on vehicles on his property. It is denied to the extent that Plaintiff and/or his representative used the vehicle for personal use. 28. Denied. Plaintiff never used the vehicle for personal use; moreover, Plaintiff did not cause any additional damage to the vehicle. 29. Admitted in part and denied in part. It is admitted to the extent that Plaintiff contacted the Pennsylvania State Police regarding the vehicle as it went suddenly missing from his property and because he was not compensated for the work he had performed on the vehicle before it was removed from the property without his permission. The averments of Paragraph 29 are denied to the extent that the averments suggest that the Plaintiff used the vehicle for personal reasons, and that he failed to contact the warranty company. 30. Denied as a conclusion of law to which no response is required. 31. Denied as a conclusion of law to which no response is required. 32. Denied as a conclusion of law to which no response is required. 33. Denied as a conclusion of law to which no response is required. PLAINTIFF'S RESPONSE TO COUNTERCLAIM 34. The averments of Paragraphs 1-33 are incorporated herein by reference. 35. Upon information and belief, the Plaintiff is without information sufficient to admit or deny the averments of Paragraph 35. 36. Denied. Plaintiff did follow the terms and conditions of the warranty by contacting the warranty company several times to get authorization for work to be performed, and provided the warranty company with a list of parts that Plaintiff was going to use on Defendant's vehicle. Plaintiff further cooperated with the one inspector who came to his business on one occasion. Plaintiff went over the vehicle with the inspector, and discussed the ongoing repairs on Defendant's vehicle with the inspector. 37. Denied. The warranty company offered to pay Plaintiff $3,231 towards the work he performed on Defendant's vehicle. The warranty company would not issue payment until Defendant paid the remaining balance, and until Defendant accepted Plaintiffs invoice for work performed. 38. Denied. Plaintiff repeatedly contacted the warranty company regarding work to be performed, provided them with a full list of parts to be used as well as the serial numbers. Plaintiff further denies causing any additional damage to the vehicle. 39. Denied as a conclusion of law to which no response is required. 40. Denied as a conclusion of law to which no response is required. 41. Denied as a conclusion of law to which no response is required. 42. Denied as a conclusion of law to which no response is required. 43. Denied. Plaintiff denies causing any additional damage to the vehicle. 44. Admitted in part and denied in part. It is admitted that Plaintiff placed promotional materials on the vehicle as it does to all vehicles on its lot. It is denied to the extent that Defendant alleges that Plaintiff drove the vehicle nearly 1,000 miles. 45. Plaintiff is without information and belief sufficient to admit or deny the allegations of Paragraph 45. 46. Plaintiff is without information and belief sufficient to admit or deny the allegations of Paragraph 46. 47. Denied as a conclusion of law to which no response is required. MARTSON LAW OFFICES By: Hubert . ilroy, Esquire I.D. N 9943 Katie J. Maxwell, Esquire I.D. No. 206018 10 East High Street Carlisle, PA 17013 (717) 243-3341 i Date: / '-'// Attorneys for Plaintiff VERIFICATION The foregoing Answer to New Matter and Counterclaim is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of the document is that of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the document 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. CS. Section 4904 relating to unsworn falsification to authorities, which provides that if I make knowingly false averments, 11 may be subject to criminal penalties. LIBERATOR PERFORMANCE SALES & SERVICE B: Shawn ,iberator CERTIFICATE OF SERVICE I, Katie J. Maxwell, an authorized agent for Martson Law Offices, hereby certify that a copy of the foregoing Complaint was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Douglas Miller, Esq. Irwin & McKnight 60 W. Pomfret Street Carlisle, PA 17013 MARTSON LAW OFFICES By GLCt c Katie J. axwell Tenast High Street Carlisle, PA 17013 (717) 243-3341 Dated: (/ Z ??/ Z- 'I " '?t2 APR TO COURT OF COMMON PLEAS OF Cw )?XOUNTY, PENNSYLVANIA Liberator Performance Sales & Service, Irk. YLO IN Plaintiff : NO.7507 2011 VS. Edward Andrescavage Defendant RULE 1312-1 The Petition for Appointment of Arbitrators shall be substantially in the Following form: PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Katie J. Maxwell, Esquire , counsel for the plaintiff/defendant in the above action (or actions), respectfully represents that: 1. The above-captioned action (or actions) is (are) at issue. 2. The claim of plaintiff in the action is $ 10,882.74 The counterclaim of the defendant in the action is $4,698.00 The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: Manson Law Offices, 10 East High Street, Carlisle, PA 17013 Irwin & McKnight, 60 West Pomfret Street, Carlisle, PA 17013 WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully submitted, ORDER OF COURT w? V$-S,6 Pd (I Ck 44 aS(fss AND NOW, l , 209foZ , in cgnsideration of the foregoing vetiti? Esq., and } cat jd. 7P e &Ai* ? Esq., are appointed arbitrators in the above M C..) C:) -:z Wticl03 ction ((or actions) as prayed for. E 0- . Cn By the Court, e or am W [-- N CO X CL ?J Kevin ess, P.J. t N E3 6l 41_41 ll^ 1G?Iejtl ell Z- 7 f' Lta /4" In the Court of Common Pleas of Cumberland Plaintitt G 1 ?t County, Pennsylvania No.'7S 7 - 6 Defendant Civil Action - Law. We I" LZI Name (Chairman) Oath n) that we will support, obey and defend the Constitution of the United nmonwealth and that we will ' charge the duties of our office with / Si Signature Name Name rLaw Firffi Law Firm MoC Teti-+ Mwakku Law Firm v t 1,? 3 n , ,r , ?, 39Utz Address Address Address City, zip city, Zip City, Award We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the ft award: (Note: If damages for delay are awarded, they shall be separately stated.) ' J \ Arhitratnr_ dissents-Ansert name if Date of Hearing: (? Z,p j Z Date of Award: Notice of Entry of Award M., the Now, the le day of 520/--), , at award was entered upon the docket and notice thereof given by mail to the parties or their attorneys. to be paid upon appeal: $ '116 ..,SZ Prothonotary By: Deputy AE PrC`t1 2912 JUL I P#? t 19 CUMiERLAN' t/ , e Liberator Performance Sales & Service, Inc. vs Edward Andrescavage IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.2011-7507 _. ~ w Z~ ~~ ~~ p~-1 . NOTICE OF APPEAL .~ FROM AWARD OF BOARD OF ARBITRATORS -~` TO THE. PROTHONOTARY: w 7s C w ,c-- Notice ~ given that Defendant, Edward AndreSCavage ,,~ from the award of the board of arbitrators entered in this case on July 16, 2012 A jury trial is demanded ~ (Check boz if s jnry trial is demanded. Otherwise jnry trial is waived.) I hereby certify that ®1. the compensation of the arbitrators has been paid, or ~2. application bas been made for permission to proceed in forma panperis. (Strike out the inapplicable clause.) V Apps or ornrey for Appei~ant NOTE: The demand for jnry trial on appeal from compulsory arbitration is governed by Rale 1007.1 (b). No affidavit or verification is required ,~U/6~ ~ F c#~i~s9 ,et'K Z7f386 ~--, =d~t ~ _ _' F"!' ~~~ ~,~- w _~~* ~~ LIBERATOR PERFORMANCE SALES IN THE COURT OF COMMON PLEAS OF & SERVICE, INC. , CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. CIVIL ACTION - LAW EDWARD ANDRESCAVAGE, Defendant 11-7507 CIVIL TERM IN RE: CIVIL TRIAL LIST ORDER OF COURT AND NOW, this 23rd day of April, 2013, the Defendant having requested a continuance of this matter, and Plaintiff having not appeared at this time for the call of the list, and it being this Court ' s understanding that it is the first time for a continuance, this matter is hereby continued until the next civil trial list when the Plaintiff may relist it . By the Court, Christ lee L. Peck, J. Hubert X. Gilroy, Esquire For the Plaintiff N Douglas G. Miller, Esquire For the Defendant pcb C= c_ �Cc rn Mr's N M, > ch PRAECIPE FOR LISTING CASE FOR NON JURY TRIAL (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case for a TRIAL WITHOUT A JURY. ------------------------------------------------------------------------------------------------------------------------------- CAPTION OF CASE ,(entire caption must be stated in fulll (check one) ❑■ Civil Action —Law ❑ Appeal from arbitration LIBERATOR PERFOMANCE SALES (other) AND SERVICE, INC. (Plaintiff) No. 2011-7507 Civil Term Vs. C-) T c EDWARD ANDRESCAVAGE M -- r..a Vic.. (Defendant) maC-') =C tea-r �C 3> VS. 9' Indicate the attorney who will try case for the party who files this praecipe: Hubert X. Gilroy, Esquire/Martson Law Offices Indicate trial counsel for other parties if known: Douglas G. Miller, Esquire This case is ready for trial. Signed: Print Name: HubeA, X. Gilroy, Esquire Date: July�5 , 2013 Attorney for: Plaintiff — I LIBERATOR PERFORMANCE SALES IN THE COURT OF COMMON PLEAS OF AND SERVICE, INC., CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF V. EDWARD ANDRESCAVAGE, DEFENDANT 11-7507 CIVIL TERM ORDER OF COURT AND NOW, this �1 day of July, 2013, IT IS ORDERED AND DIRECTED that a non-jury trial shall commence at 1:30 p.m., Monday, September 30, 2013, in Courtroom Number 1. Counsel for the parties shall appear for a pre- trial/settlement conference at 8:30 a.m., Friday, September 20, 2013, in chambers. By the Court, Albert FY Masland, J. ,,/Hubert X. Gilroy, Esquire For Plaintiff ,/Douglas G. Miller, Esquire For Defendant .� [[ m c=Court Administrator :sal FAFILES\Clients\12591 Liberator Perfomance\12591.3 Edward Mdrescavage\12591.3.Motion.wpd\mam Hubert X. Gilroy, Esquire Attorney I.D. No. 29943 Katie J. Maxwell, Esquire Z; CD Attorney I.D. No. 206018 rnM MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER ,- MARTSON LAW OFFICES 10 East High Street CD Carlisle, PA 17013 ' (717) 243-3341 - Attorneys for Plaintiff LIBERATOR PERFORMANCE SALES & IN THE COURT OF COMMON PLEAS OF SERVICE, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 11 - 7507 CIVIL TERM EDWARD ANDRESCAVAGE, Defendant MOTION TO REMOVE CASE FROM NON-JURY TRIAL LIST AND SET A SPECIAL PRE-TRIAL CONFERENCE AND NOW, comes the Plaintiff, Liberator Performance Sales and Service, Inc., by and through its attorneys, MARTSON LAW OFFICES, sets froth the following: 1. Plaintiff's counsel listed the above matter for a non jury trial and The Honorable Albert H. Masland has scheduled a non jury trial for Monday, September 30, 2013, at 1:30 p.m. and a pre-trial conference for Friday, September 20, 2013, at 8:30 a.m. 2. Douglas G. Miller, Esquire, counsel for Defendant, Edward Andrescavage, has indicated he does not agree to the matter being set for a non jury trial as the appeal from arbitration which Defendant filed requested a jury trial. 3. Plaintiff has now filed a praecipe to list this case for a jury trial the week of October 7, 2013, a copy of which is attached hereto and marked Exhibit `A.' 4. Pre-trials are scheduled for September 25,2013, and the undersigned is out of town that week on vacation. Although another attorney in the Martson Law Firm could handle the pre-trials, it is understood that the Court prefers the attorney trying the case to attend the pre-trial conference. 5. Plaintiff is requesting a pre-trial conference be specially set for a time other than September 25, 2013, and that the case be removed from the non jury trial list. 6. Attorney Miller, on behalf of the Defendant, has indicated that he concurs in the request to have the case removed from the non jury trial list and he concurs to the request that the pre-trial conference in this case be specially set. WHEREFORE,Plaintiff requests Your Honorable Court to take this matter off the non jury trial list and to specially set a pre-trial conference. MARTSON LAW OFFICES By Hubert X. bilroy, Esquire I.D. No. 29943 Katie J. Maxwell, Esquire I.D. No. 206018 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: August , 2013 Attorneys for Plaintiff LIrT PRAECIPE FOR LISTING CASE FOR JURY TRIAL {•S (Must be typewritten and submitted in triplicate) Mca ; TO THE PROTHONOTARY OF CUMBERLAND COUNTY cnt t ? Please list the following case for a Jury Trial Ln �? -------------------------------------------------------------------------------------------------------------- ---- " CAPTION OF CASE jentire caption must be stated in fulll (check one) : n 0 Civil Action —Law ❑ Appeal from arbitration LIBERATOR PERFORMANCE SALES & (other) SERVICE, INC. v (Plaintiff) No. 2011-7507 Civil Term VS. The trial list will be called on September 10,2013 EDWARD ANDRESCAVAGE and _ (Defendant) Pretrials will be held on September 25, 2013 (Briefs are due 5 days before pretrials) vs. Trials commence on October 7, 2013 Indicate the attorney who will try case for the party who files this praecipe: Hubert X. Gilroy, Esquire Indicate trial counsel for other parties if known: aa, 7SFd Douglas G. Miller, Esquire /2 03 9Y� 117, .4 This case is ready for trial. Signed: Print Name: Hubert . Gilroy, Esquire Date: August 2013 Attorney for: Plai iff r LIBERATOR PERFORMANCE SALES & IN THE COURT OF COMMON PLEAS OF SERVICE, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 11 - 7507 CIVIL TERM EDWARD ANDRESCAVAGE, Defendant COURT ORDER AND NOW,this 07 day of August,2013,upon consideration of the attached Motion, it is ordered and directed as follows: 1. This case is removed from the non jury trial list. The non jury trial scheduled for Monday, September 30, 2013, at 1:30 p.m. is cancelled and the pre-trial conference scheduled for Friday, September 20, 2013, at 8:30 a .m., is cancelled. 2. Recognizing that this case is set for a jury trial the week of October 7, 2013, and Plaintiff's attorney is not available the week of the pre-trial conference, a pre-trial conference is scheduled in this matter on the ff day of , 2013, at m. in Courtroom No. -1-of the Cumberland County Courthouse. BY THE COURT, / Albert H. Maslan , Judge cc: ubert X. Gilroy, Esquire Douglas Miller, Esquire r t ;� es Mf rn - CD wW 4' F:\FILES\Clients\12591 Liberator Perfomance\12591.3 Edward Andrescavage\12591.3.Motion In Limine.wpd\mam I P ,, P!i J i H O N v Hubert X. Gilroy, Esquire 2013 SEP 18 PM G: Attorney I.D. No. 29943 Katie J. Maxwell, Esquire CUMBERLAND COO PENNSYLVANIA Attorney I.D. No. 206018 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff LIBERATOR PERFORMANCE SALES & : IN THE COURT OF COMMON PLEAS OF SERVICE, INC., : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff • • v. : NO. 11 - 7507 CIVIL TERM EDWARD ANDRESCAVAGE, • Defendant MOTION IN LIMINE Plaintiff, Liberator Performance Sales and Service, Inc., by and through its attorneys, MARTSON LAW OFFICES, sets forth the following: 1. The above case is scheduled for a jury trial currently listed to start on Monday, October 7, 2013. 2. A Pre-Trial Conference was held in this matter before the Honorable Albert H. Masland on Wednesday, September 18, 2013. 3. At said Pre-Trial Conference,Judge Masland indicated that the parties were directed to file any Pre-Trial Motions on or before September 25, 2013. 4. Plaintiff has a number of Motions In Limine with respect to evidentiary issues raised by the Defendant in the Defendant's Pre-Trial Memorandum and at the Pre-Trial Conference. A • y MOTION TO EXCLUDE EVIDENCE/TESTIMONY ON WARRANTY INSURANCE 5. Paragraphs 1-4 are incorporated herein by reference hereto. 6. Defendant has suggested that he had a repair warranty on the vehicle in question and that the warranty company has not honored any payment with respect to the warranty because of Plaintiff's alleged failure to cooperate with the warranty company during the repairs. 7. Plaintiff vigorously denies Defendant's allegations, and suggests that he fully cooperated with the warranty company. Regardless, Plaintiff suggests evidence of insurance and a determination of liability or fault by the Plaintiff in cooperating with the insurance company should not be admitted in this proceeding for the following reasons: A. The Defendant has not joined the insurance company as a party and the insurance company would be an indispensable party to such a determination. Any determination by this Court, either by the Court itself or by the jury, as to the insurance company's liability would not be binding on the insurance company. B. Allowing the Defendant to make such allegations would, in essence, create a trial within a trial. The Defendant would first have to assert that he has an enforceable insurance policy with an entity(it is noted that Defendant has not even listed an insurance policy as a potential exhibit). Defendant would then have to prove that the insurance company had an obligation to pay for the repairs under the policy pursuant to the terms of the policy. Defendant would then have to try to prove that some action by the Plaintiff caused the insurance company not to honor their obligation. Such a mechanism would be extremely confusing for a jury. 8. The appropriate method to litigate this issue would have been for the Defendant to name the insurance company as an additional defendant to bring them in as a party, after which the entire issue could have been litigated. Absent the insurance company being a named defendant, this Court should not allow the Defendant to cloud the issue at a trial in this case. 9. It is noted that Count II of the Complaint is a claim for Unjust Enrichment. There is no dispute that the Plaintiff did do the repairs and that the Defendant has been using the vehicle for the past two years. The issue of insurance does not apply to the unjust enrichment claim. 1 WHEREFORE, Plaintiff respectfully requests your Honorable Court to issue an Order determining that Defendant is prohibited from submitting any evidence or making any argument relative to an insurance warranty repair contract relating to the vehicle. MOTION TO EXCLUDE REPAIR BILL AND ESTIMATE 10. Paragraphs 1-9 are incorporated herein by reference hereto. 11. Defendant has listed in his Pre-Trial Memorandum an Exhibit"Lilliston Ford Repair Bill and Estimate". It is understood that Defendant will attempt to testify that after he obtained possession of the vehicle he took the vehicle to a garage for repairs and Defendant will suggest these repairs were necessary as a result of faulty work or otherwise negligent work by the Plaintiff. 12. Defendant has not listed any witness who will testify with respect to the alleged repair bill or estimate bill. 13. Admission of the repair bill and estimate without a foundation witness concerning the items would be hearsay. 14. Defendant's testimony with respect to the repair work that was done for the repair bill and the proposed work for the estimate would also be hearsay. 15. This Court should exclude any admission of the repair bill and estimate. WHEREFORE,Plaintiff requests your Honorable Court to issue an Order indicating that the Defendant shall be precluded from submitting any repair bill or estimate at trial in this case or making any reference during testimony or argument about said repair bill and estimate bill. MOTION TO EXCLUDE TESTIMONY CONCERNING THE UTPCPL 16. Paragraphs 1-15 are incorporated herein by reference hereto. 17. Defendant has asserted a counterclaim in this matter suggesting that there have been certain violations of the UTPCPL on the part of Plaintiff. ' 'Pennsylvania Unfair Trade Practice and Consumer Protection Law, 73 P.S. Section 201.1 et seq. 18. Based upon the obvious circumstances of this case, Defendant is making such assertions merely to try to intimidate the Plaintiff and there is no basis on the record to allow any award under the UTPCPL. 19. Plaintiff requests the Court direct that the Defendant make no reference to the UTPCPL in his opening or throughout any testimony in the case until such time as the Court determines that the Defendant has made a threshold presentation that there are any credible allegations of violations of the UTPCPL in this matter. WHEREFORE, Plaintiff requests your Honorable Court to enter an Order directing that the Defendant and his counsel not make any reference to the UTPCL during opening statements or during any testimony at trial until such time as the Court rules that said act is relevant in the case. Respectfully submitted, MARTSON LAW OFFICES By: 9)1 Hubert X. G. roy, Esquire I.D. No. 29943 Katie J. Maxwell, Esquire I.D. No. 206018 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: ?11/6/C Attorneys for Plaintiff LIBERATOR PERFORMANCE SALES IN THE COURT OF COMMON PLEAS OF AND SERVICE, INC., CUMBERLAND COUNTY, PENNSYLVANIA r-0 PLAINTIFF CS -7 V. EDWARD ANDRESCAVAGE, DEFENDANT 11-7507 CIVIL TERM 5;c:: X- IN RE: PRETRIAL CONFERENCE A pretrial conference was held on September 18, 2013. In attendance were Plaintiffs counsel Hubert X. Gilroy, Esquire and defense counsel Douglas G. Miller, Esquire. This is a breach of contract and unjust enrichment case that arises out of repairs performed by the Plaintiff on Defendant's 2004 Ford Excursion. Defendant filed an Answer with New Matter and Counterclaim, which alleges Plaintiff failed to properly perform the service repairs, failed to follow the terms and conditions of the used vehicle warranty, improperly used Defendant's vehicle and violated the terms of the Pennsylvania Unfair Trade Practices and Consumer Protection Law. Plaintiff has identified three legal issues to be decided before trial. First, Plaintiff claims that Defendant's allegations regarding the used vehicle warranty will require a "case within a case." Defendant counters that the ability of Plaintiff to comply with the warranty was an integral part of the repair process. Regardless, the court suggested that the matter be raised in a motion in limine to determine what, if any, aspect of the warranty is relevant or admissible. The second issue raised by Plaintiff concerns repairs that Defendant claims were performed after Defendant retrieved the vehicle from Plaintiff. In short, Plaintiff submits 11-7507 CIVIL TERM that foundational testimony will be necessary for these repair bills or estimates to be admitted at trial. Finally, Plaintiff suggests that Defendant's insertion of the UTPCPL will confuse as opposed to clarify the issues. With respect to these issues and/or any other matters, we DIRECT the parties to file motions in limine no later than September 25, 2013. Responses to any motions shall be filed no later than September 30, 2013. With respect to other pretrial matters we DIRECT counsel as follows: 1. Each side will be granted four (4) peremptory challenges. 2. The jurors will not be permitted to take notes because the evidentiary phase of the trial will not last for more than two (2) days. 3. Plaintiff will not be required to file a supplemental pretrial memorandum regarding a potential rebuttal witness — a local adjustor who allegedly visited Plaintiffs shop and discussed the repair work to be done. 4. The parties will mark and exchange all exhibits prior to trial and provide copies to the court in advance. 5. Suggested points for charge shall be submitted to the court prior to the start of trial on October 7, 2013. Those charges may be amended to reflect issues that arise during the course of trial. With respect to settlement, it does not appear that the horses have even made it into the starting gate, let alone proceeded down the track. Although the arbitration hearing and the prospect of a jury trial have no doubt muddied the track, the court believes a bona fide effort to resolve this is necessary. Therefore, pursuant to Pa.R.C.P. 212.5 the parties and counsel are DIRECTED to appear for a settlement -2- 11-7507 CIVIL TERM conference on Wednesday, October 2, 2013, at 2:30 p.m. in the chambers of Courtroom Number 1. Also in attendance at that time will be a representative of Mercury Insurance and/or Warranty Inspection Services unless leave is requested for said representative to appear telephonically. By the Court, A ?RA-11-4 s I Hubert X. Gilroy, Esquire For Plaintiff �uglas G. Miller, Esquire For Defendant Court Administrator :sal eo I'es f7z�ajLQCL 4/i4/i3 -3- 1 P LE0-0F, 'i C__. Hubert X. Gilroy, Esquire HE FROTHONL; 1A, Attorney I.D. No. 29943 70H3 S ' 24 AM + j Katie J. Maxwell, Esquire Attorney I.D.No. 206018 CUMBERLAND COUNT Y MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER PENNSYLVANIA MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff LIBERATOR PERFORMANCE SALES & IN THE COURT OF COMMON PLEAS OF SERVICE, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 11 - 7507 CIVIL TERM EDWARD ANDRESCAVAGE, Defendant ORDER OF COURT AND NOW,this �� day of September,2013,upon consideration of the attached Motion In Limine,Defendant is directed to file a response to said Motion on or before September 30,2013, in accordance with the discussions held at the Pre-Trial Conference in the above matter. BY THE COURT: Albert H. Masland, Judge cc: ✓ bert X. Gilroy, Esquire Douglas G. Miller, Esquire (26 i cs � 4 y��a LIBERATOR PERFORMANCE SALES : IN THE COURT OF COMMON PLEAS OF & SERVICE, INC., : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. : CIVIL ACTION - LAW r-n n -te p 1 €n : No 2011 – 7507 CIVIL TERM cm EDWARD ANDRESCAVAGE, rr Defendant : JURY TRIAL DEMANDED c- ANSWER TO PLAINTIFF'S MOTION IN LIMINE AND NOW this 30TH day of September, 2013, comes the Defendant, Edward Andrescavage, by and through his attorneys, Irwin & McKnight, P.C. and respectfully files this Answer to Plaintiff's Motion In Limine, and in support thereof aver as follows: 1. The averments of fact in paragraph one (1) of the Plaintiff's Motion in Limine is admitted. 2. The averments of fact contained in paragraph two (2) are admitted. 3. The averments of fact contained in paragraph three (3) are admitted. 4. The averments of fact contained in paragraph four (4) are denied as stated. EVIDENCE/TESTIMONY ON WARRANTY INSURANCE 5. The averments contained in the Defendant's Answers in paragraphs one (1) through four (4) above are hereby incorporated by reference as if fully set forth below. 6. The averments contained in paragraph six (6) are admitted in part and denied in part. It is admitted that Defendant has consistently alleged, in his answers, new matter, counterclaim, and in the prior arbitrations proceedings, that the reason the subject truck was left at the Plaintiff's repair facility was because of the representations that Plaintiff was aware that Defendant had a used vehicle repair warranty, that Plaintiff had worked with and was experienced in working with such warranties, and that Plaintiff in fact would coordinate the repair of Defendant's truck with the insurance company. Defendant never saw any repair estimate, nor signed any repair contract precisely because Plaintiff represented that he would coordinate the repairs with insurance company. It is further admitted that Plaintiff failed to cooperate with the insurance company both prior to completing work on the vehicle and subsequently thereto. The remaining averments in paragraph six (6) are specifically denied. 7. The averments of fact contained in paragraph seven (7) and its subparts are conclusions of law without supporting legal citation and are specifically denied as stated. By way of further answer, Plaintiff has not previously raised any objection as to failure to join an indispensable party, until the instant Motion In Limine on the eve of trial. Defendant further asserts that a jury is very capable of determining whether and on what basis a contract was created when the truck was left in the care of Plaintiff, and the terms of payment for that work. In the alternative, Defendant asserts that if the insurance company is deemed to be a necessary party, that an Order of Court be issued permitting Defendant to so join the insurance company and delay the scheduled trial until joinder has been completed. 8. The averments of fact contained in paragraph eight (8) are conclusions of law without supporting legal citation and are specifically denied as stated. By way of further answer, Plaintiff has not previously raised any objection as to failure to join an indispensable party, until the instant Motion In Limine on the eve of trial. Defendant further asserts that a jury is very capable of determining whether and on what basis a contract was created when the truck was left in the care of Plaintiff, and the terms of payment for that work. In the alternative, Defendant asserts that if the insurance company is deemed to be a necessary party, that an Order of Court be 2 issued permitting Defendant to so join the insurance company and delay the scheduled trial until joinder has been completed. Defendant is not trying to cloud the issues at trial, but to the contrary is attempting to establish exactly why the truck was left at the Plaintiff's repair facility and the understanding of the Defendant as to the actions Plaintiff was going to undertake to ensure payment for the work under the warranty policy. 9. The averments of fact contained in paragraph nine (9) are conclusions of law and are specifically denied. By way of further answer, there are multiple disputes as to the manner in which the repairs were performed, the failure of Plaintiff to provide the promised correspondence and cooperation to the warranty company to ensure payment, and the unauthorized use of the Defendant's vehicle, including as an advertising instrument for Plaintiff WHEREFORE, Defendant respectfully requests that this Honorable Court deny Plaintiff's Motion in Limine for the reasons identified above. REPAIR BILL AND ESTIMATE 10. The averments contained in the Defendant's Answers in paragraphs one (1) through nine (9) above are hereby incorporated by reference as if fully set forth below. 11. The averments of fact contained in paragraph eleven (11) are admitted. 12. The averments of fact contained in paragraph twelve (12) are admitted. 13. The averments contained in paragraph thirteen (13) are conclusions of law and are specifically denied. By way of further answer, under Pennsylvania Rule of Evidence 803(6), records of a regularly conducted activity are a recognized exception not excludable under the hearsay rule. The dealership in New Jersey was the regular repair shop of the Defendant, 3 prepared the report immediately after Defendant returned to New Jersey with the truck, and was referenced in the original pleadings filed in this matter in January 2012. 14. The averments contained in paragraph fourteen (14) are conclusions of law and are specifically denied. By way of further answer, under Pennsylvania Rule of Evidence 803(6), records of a regularly conducted activity are a recognized exception not excludable under the hearsay rule. 15. The averments contained in paragraph fifteen (15) are conclusions of law and are specifically denied. WHEREFORE, Defendant respectfully requests that this Honorable Court deny Plaintiff's Motion in Limine for the reasons identified above. TESTIMONY CONCERNING THE UTPCPL 16. The averments contained in the Defendant's Answers in paragraphs one (1) through fifteen (15) above are hereby incorporated by reference as if fully set forth below. 17. The averments contained in paragraph seventeen (17) are denied as stated. It is admitted that Defendant has properly raised and asserted a counterclaim based upon specific, cited provisions of the Pennsylvania Unfair Trade Practices and Consumer Protection Law. Defendant's assertions were set forth in detail in the original pleadings filed in this matter in January 2012, and no objections to those assertions have previously been filed by Plaintiff 18. The averments of fact contained in paragraph eighteen (18) are conclusions of law without supporting legal citation and are specifically denied as stated. By way of further answer, Defendant properly alleged sufficient facts in his pleading to support multiple violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, including failure to 4 communicate with Defendant as to the status of his vehicle, use of the truck by Plaintiff for purposes other than its repair, and causing additional damage to Defendant's truck while it was in Plaintiff's sole possession. 19. The averments of fact contained in paragraph nineteen (19) are conclusions of law without supporting legal citation and are specifically denied as stated. By way of further answer, Defendant properly alleged sufficient facts in his pleading to support multiple violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, including failure to communicate with Defendant as to the status of his vehicle, use of the truck by Plaintiff for purposes other than its repair, and causing additional damage to Defendant's truck while it was in Plaintiff's sole possession. WHEREFORE, Defendant respectfully requests that this Honorable Court deny Plaintiff's Motion in Limine for the reasons identified above. Respectfully Submitted, IRWIN & McKNIGHT, P.C. By: d .rfigilg `i 4�.._ 'A Douglas 6 Miller, s uire Supreme Court ID # 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for Defendant, Dated: September 30, 2013 Edward Andrescavage 5 CERTIFICATE OF SERVICE I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document upon the persons indicated below by first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: Hubert X. Gilroy, Esquire Katie J. Maxwell, Esquire 10 East High Street Carlisle, PA 17013 (Attorneys for Plaintiff) Date: September 30, 2013 IRWIN & McKNIGHT, P.C. Akt- 1 J� A ; � + vvv Douglas 1, Miller, Esquire Supreme Court ID No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 Attorney for Defendant LIBERATOR PERFORMANCE SALES : IN THE COURT OF COMMON PLEAS OF & SERVICE, INC., : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff t _ v. CIVIL ACTION - LAW No. 201.1-7507 CIVIL TERM EDWARD ANDRESCAVAGE, • („Dr-- r, Defendant _ JURY TRIAL DEMANDED �c -•o =<t ZQ N 0I v OBJECTIONS TO SUBPOENA PURSUANT TO RULE 4009.21 Paul Fincher and Mercury Insurance Group ("Mercury") object to the subpoena that is attached to these objections as Exhibit A for the following reasons: 1. The subpoena violates Pa. R.C.P. No. 234.2(b) which mandates that a subpoena is "...to be served upon any adult within the Commonwealth..." Emphasis added. The subpoena was delivered outside of the Commonwealth, that is, to Paul Fincher ("Mr. Fincher") who, at all times pertinent to this matter and controversy, has resided and worked (for Mercury), and continues to reside and work (for Mercury), solely in Oklahoma. Even assuming this particular subpoena could be used to reach someone like Mr. Fincher in Oklahoma, the subpoena was not accompanied by any requisite travel (air, rental car, hotel, etc.), or any other required, fees for the witness. Given Mr. Fincher's location in Oklahoma, the travel fees alone would be quite substantial. Simply for point of reference, Mercury does not have any employees in the Commonwealth of Pennsylvania. 2. The subpoena violates Pa. R.C.P. No. 234.2(b)(3) which requires that a subpoena served by ordinary mail "...contain two copies of the Notice of Acknowledgement prescribed by Rule 234.9 and a self-addressed stamped envelope." Attached hereto as Exhibit B is a true and correct copy of the complete subpoena sent by ordinary mail to Paul Fincher, c/o Mercury Insurance Group, in Oklahoma City, Oklahoma. As the Prothonotary and Court will note in Exhibit B, the subpoena was not accompanied by the mandated Notice of Acknowledgement and a self-addressed stamped envelope. The subpoena was only accompanied by a cover letter (see Exhibit B, p. 7) to Mr. Fincher. 3. The Official Note to Pa. R.C.P. No. 234.2(b)(3) states the following: A subpoena served by ordinary mail is not enforceable unless the witness acknowledges having received it. As noted in the preceding paragraph, the subpoena sent by ordinary mail was not accompanied by the mandated Notice of Acknowledgement, and none has been executed. 4. The subpoena violates Pa. R.C.P. No. 4009.23(a) which requires that "[a] form of certificate .... shall be served with the subpoena." As the Prothonotary and Court will note in Exhibit B, the subpoena did not include the form of certificate of compliance mandated by Pa. R.C.P. No. 4009.23(a). Again, the subpoena was only accompanied by a cover letter to Mr. Fincher. 1 5. Pa. R.C.P. No. 4009.23(a) also affords the subpoenaed non-party "twenty days"to comply with the subpoena. The subpoena was received on September 23, 2013, as the date stamp (see Exhibit B, p. 6) confirms. The subpoena calls for performance on October 7, 2013, which is only fourteen days after it was received, meaning, even if the subpoena was properly prepared and served, which the foregoing objections indicate it was not, the recipient would have until October 13 to respond. The subpoena was not timely delivered. Paul Fincher and Mercury Insurance Group respectfully reserve all rights. Date: September 26, 2013 Attorney for Paul Fi her . d Mercury In rance Group A/ t Victor Poltrock, Esq. Mercury Insurance Services, LLC 1700 Greenbriar Lane Brea, CA 92821 714-671-4756 2 EXHIBIT A LIBERATOR PERFORMANCE SALES : IN THE COURT OF COMMON PLEAS OF & SERVICE, INC., : CUMBERLAND COUNTY,PENNSYLVANIA Plaintiff v. : CIVIL ACTION _ LAW : No. 2011 —7507 CIVIL TERM EDWARD ANDRESCAVAGE, Defendant : JURY TRIAL DEMANDED SUBPOENA To: Paul Fincher a/kla Paul G. Fincher,Jr. Mercury Insurance Group 7301 NW Expressway Suite 100 Oklahoma City,OK 73132 1. You are ordered by the Court to come to the Cumberland County Courthouse Carlisle,Cumberland County,Pennsylvania on: October 7,2013,at 9:30 a.m.to testify on behalf of: Defendant,Edward Andrescavage 2. And bring with the following: Any and all records involving a 2004 Ford Excursion owned by Edward Andrescavage,Vehicle Idenitification Number: 1FMSU43P44EB50629 If you fail to attend or to produce the documents or things required by this subpoena,you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, including but not limited to costs,attorney fees and imprisonment. ISSUED BY A PARTY/COUNSEL IN COMPLIANCE WITH Pa. R.C.P. No.345.2(a) Douglas G. Miller, Esquire Irwin& McKnight 60 West Pomfret Street Carlisle,PA 17013 717.249.2353 BY THE COURT: Prothonotary,Civil Division DATE: /� �ZO/� / .� eputy OFFICIAL NOTE: This form of subpoena shall be used whenever a subpoena is issuable, including hearings in connection with depositions and before arbitrators, masters, commissioners, etc. in compliance with Pa. R.C.P.No.234.1. If a subpoena for production of documents, records or things is desired,complete paragraph 2. EXHIBIT B rrl • C) -n rn rr! .-.177.—I r•■.4 11? 1.7t1 •-• - •—11 Li'I 0 cn o z - > >e, Cf) 7ri 7"J ><'■ Ci) 0 17_7- 0 N.) LAW OFFICES IRWIN & McKNIGHT, P.C. WEST POMFRET PROFESSIONAL BUILDING 60 WEST POMFRET STREET HAROLD S IRWIN (1925-19771 ROGER B.IRWIN CARLISLE,PENNSYLVANIA 17013-3222 HAROLD S IRWIN.JR. (1954-1986) MARCUS A.McKNIGHT,III IRWIN.IRWIN&IRWIN (1956-19861 DOUGLAS G.MILLER (717)249-2353 IRWIN.IRWIN&McKNIGHT(1986-1994) STEPHEN L.BLOOM FAX(717)249-6354 IRWIN.McKNIGHT&HUGHES (1994-20031 MATTHEW A.McKNIGHT WWW.IRWINMCKNIGHT COM IRWIN&NIcKNIGIFT (2003-2008) September 19, 2013 VIA CERTIFIED AND REGULAR U.S. MAIL PAUL FINCHER: MERCURY INSURANCE GROUP 7301 NW EXPRESSWAY SUITE 100 OKLAHOMA CITY, OK 73132 RE: LIBERATOR PERFORMANCE SALES & SERVICE, INC.v. EDWARD ANDRESCAVAGE DOCKET NO.: 2011-7507 Dear Mr. Fincher: Enclosed please find a subpoena requiring your attendance at a trial in the above- captioned matter scheduled for October 7, 2013 at 9:30 am at the Cumberland County Courthouse in Carlisle, Pennsylvania. If you have any questions or would like to discuss this further, please do not hesitate to contact me. Very truly yours. IRWIN & McKNIGHT; Y.C. Dougla G. Miller DGM:tds Enclosure cc: Edward Andrescavage (w/enc) Hubert Gilroy, Esquire (w/enc) 6 LIBERATOR PERFORMANCE SALES : IN THE COURT OF COMMON PLEAS OF & SERVICE, INC., : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. : CIVIL ACTION - LAW : No. 2011 —7507 CIVIL TERM EDWARD ANDRESCAVAGE, Defendant : JURY TRIAL DEMANDED SUBPOENA, To: Paul Fincher a/k/a Paul G. Fincher,Jr. Mercury Insurance Group 7301 NW Expressway Suite 100 Oklahoma City,OK 73132 1. You are ordered by the Court to come to the Cumberland County Courthouse Carlisle,Cumberland County,Pennsylvania on: October 7,2013,at 9:30 a.m.to testify on behalf of: Defendant,Edward Andrescavage 2. And bring with the following: Any and all records involving a 2004 Ford Excursion owned by Edward Andrescavage,Vehicle Idenitification Number: 1FMSU43P44EB50629 If you fail to attend or to produce the documents or things required by this subpoena,you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, including but not limited to costs,attorney fees and imprisonment. ISSUED BY A PARTY/COUNSEL IN COMPLIANCE WITH Pa.R.C.P.No.345.2(a) Douglas G. Miller, Esquire Irwin& McKnight 60 West Pomfret Street Carlisle,PA 17013 717.249.2353 BY THE COURT: . Prothonotary,Civil Division DATE: 4a,/i. /�. �64/3 • �- eputy OFFICIAL NOTE: This form of subpoena shall be used whenever a subpoena is issuable, including hearings in connection with depositions and before arbitrators, masters, commissioners, etc. in compliance with Pa. R.C.P.No.234.1. If a subpoena for production of documents, records or things is desired,complete paragraph 2. CERTIFICATE OF SERVICE I, Victor Poltrock, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document upon the persons indicated below by first class United States mail, postage prepaid, in Brea, California, 92821, on the date set forth below: Mr. Douglas G. Miller, Esq. Mr. Hubert Gilroy, Esq. Irwin & McKnight 10 East High St. 60 West Pomfret St. Carlisle, PA 17013 Carlisle, PA 17013 Date: September 27, 2012 Mercury Insuran • • p / /(/(4\ Victor Poltrock, Esq. CA Bar# 186387 1700 Greenbriar Lane Brea, CA 92821 LIBERATOR PERFORMANCE SALES : IN THE COURT OF COMMON PLEAS OF AND SERVICE, INC., : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF • • V. • • EDWARD ANDRESCAVAGE, DEFENDANT : 11-7507 CIVIL TERM IN RE: SETTLEMENT CONFERENCE ORDER OF COURT AND NOW, this 2"d day of October, 2013, following a settlement conference, the parties have agreed upon the terms of settlement, whereby Defendant shall pay Plaintiff the sum of $7,750.00 within thirty (30) days of this date. The parties shall execute mutual releases. This matter shall be removed from the trial list. By the Court, .r ` , OPP Albert H. Masland, J. ubert X. Gilroy, Esquire For Plaintiff /15-o-uglas G. Miller, Esquire For Defendant (� Court Administrator J}C tc, :sal CLYe 14-41 mou cam ` /OP,J1.3 —I =-/4/ _,4:3 µ'Vi Hubert X. Gilroy, Esquire ! HE P R O t H 0 6,y � , ,„ Attorney I.D. No. 29943 �� MARTSON DEARDORFF WILLIAMS OTTO GILROY& FR`L'ARY 21 3: 16 MARTSON LAW OFFICES 1111BERLAND COUNTY Y 10 East High Street PENNSYLVANIA Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff LIBERATOR PERFORMANCE SALES & IN THE COURT OF COMMON PLEAS OF SERVICE, INC., CUMBERLAND COUNTY , PENNSYLVANIA Plaintiff V. NO. 11 - 7507 CIVIL TERM EDWARD ANDRESCAVAGE, Defendant PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: On behalf of the Plaintiff, Liberator Performance Sales and Service, Inc., please mark Plaintiff s claim against Defendant as settled and discontinued. MARTSON 1,AW OF I By: Hubert X. Gilro , Esquire 10 East High treet Carlisle, PA 17013 (717) 243-3341 Date: November , 2013 Attorneys for Plaintiff On behalf of the Defendant,Edward Andrescavage,please mark Defendant's Counterclaim against the Plaintiff as settled and discontinued. IRW McKNIGHT, P.C. By: Dou as G. Miller, Esquire 60 West Pomfret Street Carlisle, PA 17013 (717) 249-2353 Date: November �� , 2013 Attorney for Defendant