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HomeMy WebLinkAbout11-8793 David J. Lanza I.D. No. 55782 2132 Market Street Camp Hill, Pennsylvania 17011 (717) 730-3775 OF THE PROTHONOTARY 1011 DEC 27 Pik 3- G? Attorney for PlaintiMSERLAND COUNTY PENNSYLVANIA ALISON MARTINEK, Plaintiff V. KEITH EISENSTEIN, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 11-8793 NOTICE TO DEFEND To the Defendant: 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 defense or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Dauphin County Lawyer Referral Service 213 North Front Street Harrisburg, Pennsylvania 17101 Telephone: (717) 232-7536 David J. Lanza I.D. No. 55782 2132 Market Street Attorney for Plaintiff Camp Hill, Pennsylvania 17011 (717) 730-3775 ALISON MARTINEK, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 11-8793 V. KEITH EISENSTEIN, Defendant COMPLAINT 1. Plaintiff, Alison Martinek, is an adult individual with an address at 306 Keith Road, Mechanicsburg, PA 17050. 2. Defendant, Keith Eisenstein, is an adult individual with an address at 312 East Main Street, Apt. B, Second Floor, Mechanicsburg, PA 17055. 3. Defendant has represented himself as one who has practiced as a jeweler and offered retail jewelry services and products to the public at various times and locations over the past thirty years. 4. Plaintiff and Defendant have engaged in various jewelry transactions since 1995, in which transactions Defendant sold jewelry to Plaintiff and engaged in jewelry repair, design and production work. 5. In August 2008, Plaintiff delivered to Defendant various items of jewelry, a list of which is attached hereto as Exhibit "A." 6. Plaintiff and Defendant agreed that Defendant would provide design and repair work and jewelry products related to the jewelry on Exhibit "A.". 7. Defendant was aware that Plaintiff intended to use the aforesaid jewelry for her own personal consumption and use. 8. Defendant never performed the aforesaid services or provided any related products. 9. At various and numerous times since 2008, Plaintiff inquired with Defendant as to the status of her jewelry. 10. In response to these inquiries, Defendant would respond, in front of witnesses, either that he was working on the aforesaid projects or that he would return all of Plaintiff's jewelry. 11. At various times, Defendant represented that he had placed Plaintiff's jewelry into storage due to his period of incarceration. 12. Plaintiff demanded the return of her jewelry when it became apparent that Defendant was making no progress on the design/repair projects. 13. Defendant has failed to return the aforesaid jewelry. 14. Defendant, despite written demand, did not purport to provide an explanation for the whereabouts of the jewelry and his failure to return said jewelry until the parties had appeared at two hearings at the offices of the Magisterial District Justice. 15. Defendant responded to the written demand with a written threat to seek criminal sanctions against Plaintiff on the pretext of a harassment/stalking charge. 16. The aforesaid response provided no explanation as to the whereabouts of the jewelry or any other attempt to address the jewelry issue. 17. Defendant attempted to use threats of criminal prosecution in order to intimidate Plaintiff into silence regarding her claim to her jewelry. 18. Only upon providing testimony at a subsequent civil hearing before the Magisterial District Justice did Defendant claim to have mailed some of the jewelry to a specific address. 19. The address to which Defendant claims to have mailed some of the jewelry does not, in fact, exist. 20. To the extent to which Defendant claims to have mailed the jewelry, such jewelry has been lost due to Defendant's mailing such jewelry to a nonexistent address. 21. It is believed, and therefore, averred, that Defendant converted the aforesaid jewelry to his personal use or sold the aforesaid jewelry and retained the proceeds. 22. Defendant misrepresented his conduct in converting and disposing unlawfully of Plaintiff's jewelry. 23. The aforesaid jewelry bears a replacement value in excess of $12,000.00, plus applicable sales tax and related expenses. 24. Defendant misrepresented the nature, quality and characteristics of his services and products. 25. Defendant's misrepresentation of the nature, quality and characteristics of his products and services, together with his conversion of Plaintiff's personalty and misrepresentation of such conversion constitutes multiple violations of Pennsylvania's Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1 et seq., thus entitling Plaintiff to treble damages and attorney fees pursuant to 73 P.S. § 201-9.2. 26. It is expected that Plaintiff shall incur attorney fees in the amount of $5,000.00 as a result of Defendant's conduct. 27. Plaintiff was forced to incur filing fees with the Magisterial District Justice in the amount of $151.25 for the purpose of obtaining judgment against Defendant. 28. Plaintiff was forced to incur stenographic service fees resulting from Defendant's conduct in this case. 29. Plaintiff has been forced to incur expenses for expert witness fees for the purpose of pursuing her claim against Defendant. 30. Defendant's conduct in disposing of and/or converting the jewelry at issue violated the terms of a bailment between the parties, thus entitling Plaintiff to damages for the replacement of said jewelry. 31. Defendant's conduct in disposing or converting the jewelry at issue violated the express agreement between the parties, whereby Defendant had agreed to return the aforesaid jewelry .n 303-1 after performing jewelry related services and providing jewelry related products, thus entitling Plaintiff to damages for the replacement of said jewelry. Wherefore, Plaintiff demands judgment in an amount in excess of $50,000, plus and including all attorney fees, witness fees and stenographic fees incurred through trial. Respectfully submitted, David J. Lanza Attorney I.D. No. 55782 2132 Market Street Camp Hill, PA 17011 Telephone (717) 730-3775 Attorney for Appellant CERTIFICATE OF SERVICE AND NOW, this 27th day of December 2011, the undersigned does hereby certify that he did this date serve a copy of the foregoing document upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: Keith Eisenstein 312 East Main Street Apt. B, Second Floor Mechanicsburg, PA 17055 i ??Z/ avid J. a a V ERWIC.ATK)N L Alison Martinek verify that the statements made in the foregoing Complaint are true and correct to the best of • knowledge. information and belief. I understand that false statements herein are trade subject to the penalties of 1'&Pa. C:;S..§4904 rclating to unsworn falsification to atithorities. Date: : , By: Alison Martinek I lon't ;st_rwtcs to Replace.imelry Items ?. lvldrtinek 201 i Monk d!amond gal buiy's r?t,9; yelh,"x gold, 14k., "I 8k large frea forru. Angel exesigm Had tk" custom trade, approx. 21rvun length x :3.tirnm h&., solid thi-od t+iat shastk and design. 3,.xitsm sharik of rin cn--s-: rogsod. Umque design, rton r:e*retwed. Niml. weight. 4b dwt. Rcpiacement Value $ 3A00-00 i.z.cly s riutg, do ntd shrirrio stele; ! 8k yellow gold. 8,Otr rn width x 4.0mrn prof.,le lrelght ticrni-solid. Custom. matte, rion refetenc.ed. Metal weight 3.0 dwt. Rephwetnent Value S 61OJXl w geoid, 19rnm uridtil. Lief to 3. Dolpltir, porn rust; cioubke dolphin desist-,, i die yell 10 Qi)aIir t;0ld 442493. Metal weight 1,9 dwt. No chain. Replacerm-11t Value S 323.00 4. Heart design d wnocid pendant, 18k yellow gold, t-W,W, satin fluisI4 18 mot width (74)round diamonds on Perin a tr .01 ct. eracly` S ? c:ttw. Metal weight 1.5 dwt. Mun is ref. OM-00649. Replacement Val'-oc S 520.0 S. Hcvp. tityle ew- ng; f "Tie pi i?cxly; 14k reltow gold, 5msii width, tzx'tured, . 9mr.: dia:znrt.er hitje f pos,icaAdie hruc_ket, M,eW weight l .'? dwt, lte}alucewt:nt 'Value S165.!UO 6. Lady's ring mounting (only); 14k yellow gold, had rc.und opal in at ont time. Metal Hi:;ght 3.2 dwt. Sttisler rel. #7063? Replncetne w Valix S 450,01b, 2. Earring, lever back, gold 1ocad, (one pc. anli) 14k yellow gold, dar:glc style 6tturr bead with satire fIrj,.-b, ciold weight .g d-M, Stuller #2274 and 02263. Jteplacemmt Value S 96.00 i3. M -en's Signot atyle ring; l 4k yellow gold, Solid desigsn, os,a top Ref, Wefferling-ben- #SSA605 Replacement Value $ 2,820.00 Pv. ':• •1 r . 11 ton `t. Est n+.WCt 10 RaPI C 3t ?s<clr? 1tGr a A, NUrtinek Oct. •1, 2011 MUNN,' d i A m o n d galle;r l+'t.t{?dDliz CtrsTrt't );oTl%s, ' air) I'k yrll(Iw• 901d. level' bw;k- dwngie, rfoupd shape burg,u*-red s otize, Mmzn diarnctt:r each stone., mew wriOt 1.8 dvvt. Stulle'r r*-f42a?4 131 c To1rw-, and diw"ond ring; Pear sh4pc blue tgw major stone. 12 x 8n%t1UsIo ct. SWiss blue, !2 )round sham diamond minor stoncs; SII Clarltv!'GH C ofor,..2i ct, ftch stjuel.50 ct*,,., tai; ycliow gold mounting trong=set. M mm stones me set in ,t sKirI dash, unigtw. sett.inp :Ayle; schJ shatak w-cl settiag, Ref p/a. Meud wgt y wt. 'Replacen'tat ?.tt e + t,] SL• t?(} ' :. i 0usr c ilered srrnstone.Oxal purple-burgudy star sapphire (natural) e x Farm, tt: s11ed lure tlecuierxun; jcwwrler v< ca ;;0 1d stone to, A. NUttinek to veri.*, 2004.' ?cnls,:.a?x?rpt '?ta?UG $ 9G.t?{1 . Silver atIle bwe.srt, 925 Sterling silver, rope link, 1,75mtn, witli. sailor's knot desig,,, r:fssp %4w broken 9.5 inch length. Ref Quftlity Gold QG1 229 Repfru:smnit `clue $ 25:60 C4nstrtlas girt; Silver, d pewwr, wreath design, all Wit, no ct i-cl or gerrktanes. i Dimension; 2"4", diamvtei x 7/8" (large) W. 6%-2 78 Ric Onzin& 484-et Sto* t: lactnteni t-alu, Lernoynr., PA 1704 { Ruby 4N d4vt and ri ag; 14k y0low goid peaz shw :rub? r...ojor gwnv. WRP.m/.31 k:t. Aid grBete-. red-lt.red, {24r.quIl l shape diamonds .fl2ct. each S M14-1. free.-form design (77; Kef, rda Metal we ght 1.5 dr>,t. xePlacetnem valate S 51:3,00 x ,17. A1nethYll Eutntlg% !ever back Uigle style 14 yellow gold, F.me?m 4' nwi m.14 stone, A grade/parple-dklpurple. Fef, Stuller #2274 m r{ -plac ement Value $ 260-04) j14 4 ROp;zu:x cw•eL* Items MUNN' diar"6nd bafl'¢ 4,20 11 Rl: KII.khte Ctarw king'. 'Rf"d ahalpe g unit .(3Mtm/ n ct. Krei'or,1 uwn color. I41s set ei 7- o' :lc?;.k velio .god wits loge (24mn)) open !-quart. drs n, grin,-a is oil' pcssitior,. 41nsr, width shin k. Wal weight! 4.5 dwt, ket: n1a Rrplace?tast!t VHiue: ? ?7?.Ot1 %. Wrodctlit? (?T'trrwt,F-Ar tngs.. One pair hoop swat 24tmtz 4k ycliow g td holtow, 2mm diametez eofltiiauot ., t.irele design, each $t?t with free-floating round shape Rhosulac Gwrtiet b.imm diameter hurptma y red 1.00 r t ewh, fo ptong %c inn. ? cul NveighZ I I dwx. Ref, Stt ller #625 xepkv':vTlftw Value S'2N.),00 -Mar*et 5 '2w Lem(ia na, PA I I t i i t i t r t f'r: 4,4 r-air r!t? r .,, AWP5 ALISON MARTINEK, : IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY, PENNSYLVANIA r-> C.7 S V. : No. 11-8793 - X --' Co Mm z - _ KEITH EISENSTEIN, :CIVIL ACTION- LAW ?? VM Defendant ° rQ ?y .. ^e DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes Keith Eisenstein, by and through his attorney, Michael D. Rentschler, Esquire, who files the within Preliminary Objections to Plaintiffs Complaint pursuant to Pennsylvania Civil Procedure Rule 1028. PRELIMINARY OBJECTIONS IN THE NATURE OF A MOTION TO STRIKE PURSUANT TO RULE 1028 (a) (2) - Failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter. 1. The Plaintiff filed a Complaint against Defendant in the above captioned matter. 2. The paragraphs, or specific portions of the paragraphs, of the Complaint which give rise to these Preliminary Objections and which are requested to be stricken, are as follows: a. Strike "due to his period of incarceration" from paragraph 11 of Plaintiffs Complaint. b. Strike Paragraph 14 of Plaintiffs Complaint in its entirety which states: "Defendant, despite written demand, did not purport to provide an explanation for the whereabouts of the jewelry until the parties had appeared at two hearings at the offices of the Magisterial District Justice." c. Strike Paragraph 15 of Plaintiffs Complaint in its entirety which states: "Defendant responded to the written demand with a written threat to seek criminal sanctions against Plaintiff on the pretext of a harassment/stalking charge." d. Strike Paragraph 16 of Plaintiff's Complaint in it entirety which states: "The aforesaid response provided no explanation as to the whereabouts of the jewelry or any attempt to address the jewelry issue." e. Strike Paragraph 17 of Plaintiff's Complaint in its entirety which states: "Defendant attempted to use threats of criminal prosecution in order to intimidate Plaintiff into silence regarding her claim to her jewelry." f. Strike Paragraph 18 of Plaintiffs Complaint in its entirety which states: "Only upon providing testimony at a subsequent civil hearing before the Magisterial District Justice did Defendant claim to have mailed some of the jewelry to a specific address." g. Strike the language "... and related expenses." from Paragraph 23 of Plaintiff's Complaint. h. Strike Paragraph 26 of Plaintiff's Complaint in its entirety which states: "It is expected that Plaintiff shall incur attorney fees in the amount of $5,000.00 as a result of Defendant's conduct." i. Strike Paragraph 27 of Plaintiffs Complaint in its entirety which states: "Plaintiff was forced to incur filing fees with the Magisterial District Justice in the amount of $151.25 for the purpose of obtaining judgment against Defendant." j. Strike Paragraph 28 of Plaintiff's Complaint in its entirety which states: "Plaintiff was forced to incur stenographic service fees resulting from Defendant's conduct in this case." k. Strike Paragraph 29 of Plaintiff's Complaint in its entirety which states: "Plaintiff has been forced to incur expenses for expert witness fees for the purpose of pursuing her claim against Defendant." 3. Paragraphs 14, 15, 16, 17, 18, 26, 27, 28, and 29 of Plaintiffs Complaint should be stricken from the Complaint because these allegations are scandalous and impertinent in that the Defendant is entitled to a trial "de novo" in the Court of Common Pleas; a Defendant is not compelled to respond to Plaintiff with an explanation or identification of a defense prior to trial; the result, reference, or the filing of a disputed matter before a District Court for consideration before that District Court is irrelevant; the allegation that Defendant attempted to use "criminal prosecution" to intimidate Plaintiff is likewise, scandalous and impertinent to Plaintiff's purported claim against Defendant; and/or the allegations are irrelevant to the Plaintiffs attempt to prove her case against Defendant. 4. The reference to Defendant having been incarcerated as is alleged in Paragraph 11 or Plaintiffs Complaint is prejudicial, scandalous, inflammatory, and not otherwise relevant to Plaintiffs claim against Defendant. 5. The language ".... and related expenses." is irrelevant and immaterial to Plaintiff's claim and is overly broad. WHEREFORE, it is respectfully requested that this Honorable Court grant Defendant's Preliminary Objection and, therefore, strike Paragraphs 14, 15, 16, 17, 18, 26, 27, 28, and 29 from Plaintiff's Complaint in its entirety; strike "... due to his period of incarceration." from Paragraph 11 of Plaintiffs Complaint; and strike "...and related expenses." from Paragraph 23 of Plaintiffs Complaint. Respectfully submitted, MICHAEL D. RENTSCHLER, ESQUIRE 2201 N. 2" d Street Harrisburg, PA 17110 (717) 975-9129 Supreme Court ID# 45836 Attorney for Defendant 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) Alison Martinek vs. Keith Eisenstein Lust ine wanin matter Tor the next C) c c ---------------------------------- rVJ no cn < ° rJ ?• C) s C__ cts No. 11-8793 2011 Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary Objections 2. Identify all counsel who will argue cases: (a) for plaintiffs: David Lanza, 2132 Market Street, Camp Hill, PA 17011 (Name and Address) (b) for defendants: Michael Rentschler, 2201 North Second Street, Harrisburg, PA 17110 (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: June 1, 2012 Z::? Signature Print your name David Lanza Date: May 14, 2012 Attorney for ill C,-- t 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. Y ,. -Orn C5q a:: ©- A- L ??? 17 David J. Lanza LDS No. 55782 2132 Market Street Attorney for Plaintiff Camp Hill, Pennsylvania 17011 (717) 730-3775 ALISON MARTINEK, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 11-8792 v. - -, - - =M • ? KEITH EISENSTEIN, N ' Defendant u PLAINTIFF'S ANSWER TO PRELIMINARY OBJECTION W Introduction Plaintiff has set forth numerous causes of action in Plaintiff's Complaint, none of which are or could be demurred by Defendant. Instead, Defendant seems to object to Plaintiff's reference to certain evidence, all of which objections are premature for this stage of the proceedings. Plaintiff's causes of action rely on the testimony of Plaintiff and her witnesses as well as admissions by Defendant. These admissions are both express and implied. These admissions were made explicitly (in some cases under oath and recorded stenographically) as well as by silence and by conduct. Specifically, Defendant has admitted to having possession of at least some of Plaintiff's jewelry and to having disposed of said jewelry by sending it to a nonexistent address. The remainder of the allegations establish that Defendant knew Plaintiff's proper address and attempted to conceal his improper disposition of the jewelry in question. Defendant thus seeks to strike allegations that establish specific elements of Plaintiff's causes of action without actually having to demur those causes of action. 1. Admitted. 2. Denied. None of the specified paragraphs should be stricken. a. Denied. There is no basis to strike this phrase, as it constitutes part of a larger admission by Defendant. Specifically, Defendant admitted having possession of the jewelry in question and set forth the reason for his placing the jewelry in storage. b. Denied. The statement set forth therein constitutes an admission, as Defendant has engaged in an alternating pattern where he has failed to provide an explanation for the •i whereabouts of the jewelry followed by his representation as to the jewelry's ultimate disposition. Defendant cannot now deny having had possession of the jewelry. c. Denied. Defendant's conduct in threatening Plaintiff with criminal charges (instead of addressing the jewelry issue) supports Plaintiff's claim that Defendant improperly disposed of Plaintiff's jewelry. That Defendant delivered these threats to Plaintiff via the U.S. Mail proves that Defendant was aware of Plaintiff's mailing address, despite Defendant's later claims that he contemporaneously mailed some of the jewelry to an incorrect address. d. Denied. Defendant's failure to provide an explanation (or at least a denial) regarding Plaintiff's claims constitutes an admission. e. Denied. Defendant's attempt to silence Plaintiff (rather than address the jewelry issue) constitutes an admission and is, by itself, actionable. f. Denied. Defendant's testimony regarding his disposition of the jewelry constitutes an admission. Defendant's failure to provide this explanation prior to that time also constitutes an admission. g. Denied. There is no basis to strike this language, as Defendant is responsible for all expenses that Plaintiff would incur to replace the jewelry. All such expenses were foreseeable to Defendant at the time of the conversion. h. Denied. There is no basis to strike this language, as Defendant is responsible for all expenses that Plaintiff would incur to replace the jewelry. All such expenses were foreseeable to Defendant at the time of the conversion. The attorney fees are particularly foreseeable in light of Defendant's conduct since Plaintiff began demanding the return of the jewelry. i. Denied. There is no basis to strike this language, as Defendant is responsible for all expenses that Plaintiff would incur to replace the jewelry. All such expenses were foreseeable to Defendant at the time of the conversion. j. Denied. There is no basis to strike this language, as Defendant is responsible for all expenses that Plaintiff would incur to replace the jewelry. All such expenses were foreseeable to Defendant at the time of the conversion. Stenographic services are particularly foreseeable in light of Defendant's alternating patterns of silence and express admissions regarding the disposition of the jewelry. k. Denied. There is no basis to strike this language, as Defendant is responsible for all expenses that Plaintiff would incur to replace the jewelry. All such expenses were foreseeable to Defendant at the time of the conversion. 3. Denied. The bases on which Defendant seeks to strike certain allegations is incoherent. Plaintiff's allegations establish admissions that Defendant has made. Plaintiff's allegations do not deprive Defendant of a de novo trial. Defendant made numerous admissions regarding his possession of the jewelry in question and his disposition of the jewelry. Some of these admissions were made under oath while represented by counsel and were recorded by a stenographer. Defendant cannot be permitted to change his story now by excluding the evidence of his prior admissions. That Defendant attempted to intimidate Plaintiff into silence instead of responding to her demands for the return of the jewelry constitutes an admission and is, itself, actionable. Defendant's objections are interposed at this point for the purpose of delay. 4. Denied. Defendant stated to Plaintiff that he had placed her jewelry into storage for the duration of his incarceration. Such statement constitutes an admission. 5. Denied. All expenses, including stenographic services, attorney fees and expert witness fees are the natural consequences of Defendant's tortious conduct and were foreseeable at the time he converted and disposed of Plaintiff's jewelry. Wherefore, Plaintiff demands that Defendant's Preliminary Objections be dismissed and that Defendant be required to answer the Complaint. Respectfully su itt d, David J. Lanza Attorney I.D. No. 55782 2132 Market Street Camp Hill, PA 17011 Telephone (717) 730-3775 Attorney for Plaintiff 303-2 CERTIFICATE OF SERVICE AND NOW, this 21St day of May 2012, the undersigned does hereby certify that he did this date serve a copy of the foregoing document upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: Michael Rentschler, Esquire 2201 N. 2nd Street Harrisburg, PA 17110 David J. Lanza ALISON MARTINEK, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - LAW NO. 2011-8793 CIVIL KEITH EISENSTEIN, Defendant IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS BEFORE HESS, P.J. AND PECK, J. ORDER AND NOW, this fday of June, 2012, following argument thereon, the preliminary objections of the defendant are OVERRULED. BY THE COURT, Hess, P. J. ? David Lanza, Esquire For the Plaintiff ? Michael Rentschler, Esquire For the Defendant 4V-C-. ti"} rte.? - 7 1 c,a 61 "David J. Lanza I.D. No. 55782 2132 Market Street Attorney for Plaintiff Camp Hill, Pennsylvania 17011 (717) 730-3775 ALISON MARTINEK, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 11-8793 V. CIVIL ACTION - LAW KEITH EISENSTEIN, a-q ,_,, Defendant r J PRAECIPE FOR DEFAULT JUDGMENT TO:PROTHONOTARY - T, Pursuant to Pa.R.Civ.P. 237.1(b)(2) enter judgment by default in favor of the Plaintiff, and against the Defendant, KEITH EISENSTEIN, for damages in the amount of $50,000.00, plus costs and interest, by reason of the failure of the Defendant to file an Answer within 20 days of the date of service of the Complaint endorsed with a notice to defend. Enter this judgment for failure of Defendant to file an Answer or other pleading within twenty days of the Court Order (attached) dated June 1, 2012. Respectfully submitted, By: David J. Lanza Attorney I.D. No. 55782 2132 Market Street Camp Hill, PA 17011 Telephone (717) 730-3775 Attorney for Plaintiff 6 Pd wl Aid- ? -77 0 Np/{c< 1-&114 CERTIFICATE OF SERVICE AND NOW, this 22nd day of June 2012, the undersigned does hereby certify that he did this date serve a copy of the foregoing document upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: Michael Rentschler, Esquire 2201 N. 2nd Street Harrisburg, PA 17110 By: David Lanza ALISON MARTINEK, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - LAW NO. 2011-8793 CIVIL KEITH EISENSTEIN, Defendant IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS BEFORE HESS, P.J. AND PECK, J. ORDER AND NOW, this rday of June, 2012, following argument thereon, the preliminary objections of the defendant are OVERRULED. BY THE COURT, ew Hess, P. J. ? David Lanza, Esquire For the Plaintiff v Michael Rentschler, Esquire For the Defendant :rim 4' es iua . led Gh //;;L C= G? N rn c- ?ryr? - cn r- ?Z .-: 2 C ; ^.,' f ALISON MARTINEK, Plaintiff V. KEITH EISENSTEIN, Defendant z• ter. • i1v V NOTICE TO PLEAD IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 11-8793 - 3^J CIVIL ACTION- LAW TO: Alison Martinek, Plaintiff c/o her Attorney, David J. Lanza, Esquire 2132 Market Street Camp Hill, PA 17011 You are hereby ordered to plead to Defendant's New Matter within twenty (20) days of the date of service or a judgment may be entered against you. Respectfully submitted, MICHAEL D. RE CHLER, ESQUIRE 2201 N. 2' Street Harrisburg, PA 17110 (717) 975-9129 Supreme Court ID# 45836 Attorney for Defendant ALISON MARTINEK, Plaintiff V. KEITH EISENSTEIN, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 11-8793 CIVIL ACTION- LAW DEFENDANT'S ANSWER AND NEW MATTER TO PLAINTIFF'S COMPLAINT AND NOW, comes Keith Eisenstein, by and through his attorney, Michael D. Rentschler, Esquire, who files the within Answer and New Matter to Plaintiff's Complaint. 1. Admitted upon information and belief. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted in part. Denied in part. It is admitted that Plaintiff provided Defendant with some articles of jewelry. Defendant is without knowledge as to the date in which items of jewelry were delivered to him by Plaintiff, so the same is hereby denied and proof thereof is demanded. It is denied that the items that are identified in Exhibit A accurately describe the jewelry items that were left with Defendant, both in number and the respective values. By way of further answer, Defendant mailed the items that had been left with Defendant back to Plaintiff by utilizing the United States Postal Service. 6. Denied. To the contrary, Plaintiff asked Defendant to melt down the items that she provided to him and to create one large pendant for her. It is further denied that the Plaintiff left the items identified in Exhibit A with the Defendant. 7. Denied. At the time that Plaintiff left some items with Defendant, Defendant was not aware that Plaintiff was going to use the pendant that he was to make for her for her own personal consumption or use. 8. Admitted. 9. Denied. Strict proof thereof is demanded at trial. 10. Admitted in part. Denied in part. It is denied as to this paragraph's reference back to the allegations made in paragraph 9, which were denied. It is denied that there was more than one item to be produced by Defendant. It is further denied that those items that are identified in Exhibit A is accurate both as it pertains to items left with Defendant and the value of the items. It is admitted that Defendant said something to the effect that he was working on a project or that he would return the items that were given to him. 11. Admitted in part. Denied in part. It is admitted that Defendant placed the items that he received from Plaintiff into storage. It is denied that Defendant told Plaintiff that he had to place the items into storage because of incarceration. 12. Denied. To the contrary, Plaintiff only asked for return of jewelry after Defendant gave her notice that he was leaving a property that he rented from her. 13. The Defendant is without knowledge as to the truth or falsity of this allegation, so the same is hereby denied and strict proof thereof is demanded. Defendant mailed items to Plaintiff. Furthermore, it is denied that the items that are described in Exhibit A are the items that were left with Defendant. 14. Admitted in part. Denied in part. It is admitted that Defendant gave no explanation to Plaintiff as to the whereabouts of the jewelry that Plaintiff had given to Defendant. The jewelry that was given to him was not the jewelry that is listed in Exhibit A. It is denied that Plaintiff gave Defendant the items that she claims to have given to him. To the contrary, the items that were given to Defendant were costume jewelry that was of low value, not the respective values that Plaintiff as placed on Exhibit A. 15. Denied. The letter that was directed to Plaintiff was not a response to any question pertaining to this case. This letter was a legitimate cease and desist letter directed to Plaintiff due to Plaintiffs harassing behavior toward Defendant. 16. Admitted in part. Denied in part. It is admitted that the "cease and desist" letter that Defendant directed to Plaintiff did not address any issue regarding this case. It is denied that there is any relationship between the cease and desist letter and this case. The "cease and desist" letter was directed to Plaintiff as a result of the harassment of Defendant by Plaintiff in an unrelated matter. The "cease and desist" letter was not in response to, nor did it have anything to do with this case. 17. Denied. To the contrary, the letter was a document that requested that the Plaintiff stop her harassing behavior toward Defendant and involved matters not related to this jewelry case. It is denied that the "cease and desist" letter threatened Plaintiff with criminal prosecution for any interaction that Plaintiff had with Defendant before the date of the letter. To the contrary, the letter requested that the Plaintiff refrain from harassing him and indicated legitimate means for redress open to Defendant should her harassing behavior occur after the date of the letter. 18. Admitted in part. Denied in part. It is admitted that Defendant provided testimony that he placed the jewelry items that he received from Plaintiff and that he mailed those items from the post office. It is further admitted that the explanation occurred in a subsequent civil hearing and that the exterior of the receptacle containing the jewelry denoted a particular destination. It is denied that Plaintiff mailed "some of the jewelry" that Plaintiff gave to Defendant. To the contrary, Defendant mailed back all of the jewelry that he received from Plaintiff. It is further denied that the jewelry that forms the basis of Plaintiff's complaint consisted of the items identified in Exhibit A. 19. After reasonable investigation, Defendant is without knowledge as to the truth or falsity of the allegation contained in Paragraph 19, so the same is hereby denied and strict proof thereof is demanded at trial. 20. Admitted in part. Denied in part. It is admitted that Defendant placed the jewelry that he received from Plaintiff into a receptacle approved for mailing and that he mailed that receptacle containing the jewelry from the post office. It is unknown as to whether the receptacle containing the jewelry is lost. To the contrary, said receptacle could be in the possession of the Plaintiff or the post office. 21. Denied. Contrary to Plaintiffs assertions, Defendant did not convert items to his own use, nor did he sell any of Plaintiffs jewelry. Strict proof of this allegation is demanded. 22. Denied. Plaintiff did not make any misrepresentations to Plaintiff regarding the jewelry that he received from Plaintiff. Strict proof of this allegation is demanded. 23. After reasonable investigation, Defendant is without knowledge as to the truth or falsity of the allegati0ons contained in this paragraph, so the same is hereby denied and proof thereof is demanded. 24. Denied. Defendant did not in any way misrepresent the nature, quality and I characteristics of his services or products. Defendant had provided services for Plaintiff on prior occasions and Plaintiff knew of Defendant's through prior dealings and the course of performance of Defendant in those prior dealings. 25. This allegation consists of a legal conclusion to which no response is necessary. To the extent that this allegation is deemed factual, Defendant denies that this case falls within the purview of the Pennsylvania Unfair Trade Practices and Consumer Protection Law. Strict proof thereof is demanded. It is further denied that Defendant misrepresented the nature, quality and characteristics of his services to Plaintiff. It is further denied that he converted the property of Plaintiff. Strict proof of the allegations is demanded. By way of further answer, it is denied that Defendant's alleged actions or inactions violated the Act and that Plaintiff is entitled to treble damages or any recovery of damages. The Act identifies the upper boundary for damages to the extent that it contains the reference to treble damages. However, although denied that Defendant is liable to Plaintiff and further, denying that Defendant should be liable to Plaintiff under the Act, the Court has discretion to order damages in any amount up to tripling damages, but can also order damages for less than that amount, assuming that Plaintiff has proven her damages and that Defendant is liable to her for any damages, 26. After reasonable investigation Defendant is without knowledge as to the truth or falsity of the allegations contained in this Paragraph so the same is hereby denied and proof thereof is demanded. 27. After reasonable investigation, Defendant is without knowledge as to the truth or falsity of the allegations contained in this Paragraph, so the same is hereby denied and strict proof thereof is demanded. 28. Upon reasonable investigation, Defendant is without knowledge as to the truth or falsity of the allegations contained in this Paragraph, so the same is hereby denied and strict proof thereof is hereby demanded. 29. After reasonable investigation, Defendant is without knowledge as to the truth or falsity of the allegations contained in this Paragraph so the same is hereby denied and strict proof thereof is demanded. 30. The allegations contained in this paragraph constitute a conclusion of law to which no response is necessary. To the extent that the allegations are deemed to be factual in nature, Defendant at all times relevant to this action, acted in a reasonable and non- negligent manner, so these allegations are denied. Although it is denied that Defendant acted or failed to act in any way that would render him liable to Plaintiff, Plaintiff cannot prove the value of her jewelry. By way of further response, see Defendant's New Matter. 31. The allegations contained in this paragraph constitute conclusions of law to which no response is necessary. To the extent that the allegations are deemed to be factual, Defendant denies that he acted or failed to act in any way that would permit Plaintiff to recover damages from him. Strict proof of these allegations is demanded. By way of further response, see Defendant's New Matter. WHEREFORE, it is respectfully requested that this Honorable Court enter judgment in favor of Defendant. DEFENDANT'S NEW MATTER 32. Defendant incorporates his responses to Paragraphs 1 through 31 Of Plaintiff's Complaint as if fully set forth at length. 33. Plaintiffs Complaint fails to plead with the proper particularity necessary to prove that Defendant committed fraud or misrepresentation against Plaintiff. 34. Over the course of approximately 20 years Defendant has performed services for Plaintiff similar, if not the same, as that requested by Plaintiff of Defendant to create jewelry for her in this case. 35. Defendant was requested by Plaintiff to perform the jewelry service herein requested based upon Defendant's prior course of conduct, course of performance, quality of performance, and prior dealings between Plaintiff and Defendant. 36. Defendant did not misrepresent the nature or quality and/or the characteristics of his services and/or his products to Plaintiff. 37. Defendant did not commit fraud in the alleged transactions that form the basis of Plaintiffs complaint. 38. Plaintiff is not entitled to recover under the Consumer Protection Act as pled by Plaintiff. 39. Plaintiff's claims do not fall within are barred by the applicable statute of limitations. 40. Since Defendant is not liable to Plaintiff under the Pennsylvania Unfair Trade Practices and Consumer Protection Law, Plaintiff's claims against Defendant are barred by the applicable statute of limitations. 41. The items that Plaintiff gave to Defendant are not the items of jewelry identified in Exhibit A of Plaintiff's Complaint. 42. Without admitting that Defendant is responsible to Plaintiff for any damages, any perceived loss by Plaintiff is the result of an intervening and/or superceding cause that renders no liability against Defendant. 43. Plaintiff did not deliver the items that she alleges to have delivered to Defendant. 44. Defendant is not liable to Plaintiff for any damages. WHEREFORE, Defendant demands judgment in his favor and against Plaintiff. Respectfully submitted, MICHAEL D. R TSCHLER, ESQUIRE 2201 N. 2"d Street Harrisburg, PA 17110 (717) 975-9129 Supreme Court ID# 45836 Attorney for Defendant VERIFICATION I, Keith Eisenstein, do hereby swear and affirm that the statements contained in the foregoing document are true and correct. I understand that any false statement may be prosecuted under Pa CSA Section 4904, which relates to unsworn falsification to authorities. Date:.tatl e 2f 2 ©? L KeiVi- Eisenstein CERTIFICATE OF SERVICE I, Michael D. Rentschler, Esquire, do hereby certify that, on the date stated below, I served a copy of the foregoing Document upon the following by first class mail, postage prepaid and addressed to: David J. Lanza, Esquire 2132 Market Street Camp Hill, PA 17011 Date: -Z/ !- Michael D. Rentschler, Esquire 2201 N. 2°d Street Harrisburg, PA 17110 (717) 975-9129 Supreme Court ID # 45836 ALISON MARTINEK, Plaintiff V. KEITH EISENSTEIN, Defendant : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, PENNSYLVANIA : No. 11-8793 : CIVIL ACTION- LAW AMENDED CERTIFICATE OF SERVICE I, Michael D. Rentschler, Esquire, do hereby certify that on the date stated below, I served a copy of Defendants Answer and New Matter bearing a filing date of June 22, 2012 upon the following person by United States mail, postage prepaid and addressed to: David J. Lanza, Esquire 2132 Market Street Camp Hill, PA 17011 Date: Michael D. Rentsc ler, Esquire 2201 N. 2"d Street Harrisburg, PA 17110 (717) 975-9129 Supreme Court ID# 4 a - 4cn - c -p _ 0 ?o X- c> ?rn -4 d ALISON MARTINEK, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. KEITH EISENSTEIN, DEFENDANT 11-8793 CIVIL TERM ORDER OF COURT AND NOW, this ?day of July, 2012, upon consideration of Defendant's Petition to Open and/or Set Aside Default Judgment, a Rule is issued on Plaintiff to show cause why the requested relief should not be granted. Rule returnable twenty (20) days after service. By the Court, Albert H. Masland, J. Esquire Lanza /David J , . For Plaintiff C- CM Michael D. Rentschler, Esquire x r `Y'?-=- For Defendant ' :saa Cop,c°s "Jed (P c' F1 log .Ta David J. Lanza I.D. No. 55782 2132 Market Street Camp Hill, Pennsylvani417041 (717) 730-3775 2y1Z 331 23 Pht l2 2v CUIMgERLAS C pENNSYLVANIA, ALISON MARTINEK, Plaintiff V. KEITH EISENSTEIN, Defendant Attorney for Plaintiff IN THE COURT OF COMMON PL AS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 11-8793 PLAINTIFF'S ANSWER TO DEFENDANT'S PETITION TO OPEN 1. Admitted in Part. Denied in Part. This case began with Defendant steal jewelry as set forth in Plaintiff's Complaint. Plaintiff's 2. Admitted in Part. Denied in Part. This averment is irrelevant to the issues of t is Petition and the underlying case. 3. Admitted in Part. Denied in Part. This averment is irrelevant to the issues oft is Petition and the underlying case. Plaintiff filed a timely Complaint, in response to which Defendant has at empted to delay resolution of this Complaint. 4. Admitted in Part. Denied in Part. This averment is irrelevant to the issues oft is Petition and the underlying case. Plaintiff filed a timely Complaint, in response to which Defendant has attempted to delay resolution of this Complaint. 5. Admitted in Part. Denied in Part. This averment is irrelevant to the issues oft is Petition and the underlying case. Defendant's Preliminary Objections were denied and were completely u justified. 6. Admitted in Part. Denied in Part. This averment is irrelevant to the issues oft is Petition and the underlying case. Defendant's Preliminary Objections were denied and were completely unjustified. Defendant was attempting to strike allegations regarding evidence and Plaintiff's damages as "s andalous" and "impertinent," which objections were properly overruled by the Court. 7. Admitted. 8. Denied. Plaintiff's counsel received no such call. No extension was requested oar granted. To the extent that Defendant purported to file an Answer, such filing was untimely. 9. Denied. To the extent that Defendant purported to file an Answer, such untimely. Judgment had already been entered in this case by that time. 7 [sic]. Admitted in Part. Denied in Part. Plaintiff's filing speaks for itself. By way Answer, The Rule speaks for itself, which Rule Defendant violated in this case. 8 [sic]. Denied. The Praecipe for Default Judgment was proper under the Rul( Procedure, including Rule 237.1(b)(2). Defendant's Preliminary Objections had been denied b this Court more than twenty days prior to the entry of judgment. 9 [sic]. Denied. There is no requirement that the Order in question direct the entry of j was of further of Civil Order of ment. 10 [sic]. Denied. There is no requirement that the Order in question direct the entry of judgment. Defendant failed to Answer the Complaint after having his Preliminary Objections denied pursuant to Court Order. 11 [sic]. Denied. There is no requirement that the Order in question direct the entry of judgment. Defendant failed to Answer the Complaint after having his Preliminary Objections denied pursuant to Court Order. The Rule in question constitutes an exception to the requirement of a ten day notice. 12 [sic]. Denied. Defendant failed to Answer the Complaint after having his Preliminary Objections denied pursuant to Court Order. The Rule in question constitutes an except on to the requirement of a ten day notice. The Complaint remained pending for almost six months without Defendant filing an Answer - even though Defendant's Preliminary Objections (which were denied) did n t seek the dismissal or striking of the majority of the Complaint. 13 [sic]. Denied. There is no requirement that the Order in question direct the entry o judgment. Defendant failed to Answer the Complaint after having his Preliminary Objections denied pursuant to Court Order. The Rule in question constitutes an exception to the requirement of a ten day notice. 14 [sic]. Admitted in Part. Denied in Part. The Defendant had failed to Answer the omplaint almost six months after service of the Complaint. By way of further denial, the Praecipe speaks for itself. 1 15 [sic]. Denied. There is no such requirement under Rule 237.1(b)(2). 16 [sic]. Denied. The Complaint speaks for itself. By way of further denial, Defe dant was represented by counsel since prior to the filing of the Complaint, as admitted by Defendant in IM and 3 of this Petition. Defendant's failure to Answer the Complaint results from Defendant pursuin frivolous Preliminary Objections and then ignoring an Order from this Court - not from any mistaken contact with any Lawyer Referral Service. 17 [sic]. Denied. The judgment in this case is for a sum certain based on the Comp aint. The Complaint sought damages in excess of $50,000. The Default Judgment is for damages in the exact amount of $50,000.00. 18 [sic]. Denied. This averment constitutes a conclusion of law that requires no responsive pleading. By way of further denial, all damages contained in the judgment were sought by Plaintiff in the Complaint. That a statutory basis exists to justify those damages provides no further basis o which to challenge the judgment in this case. 19 [sic]. Denied. The judgment is a sum certain. The method for calculating dam forth in the Complaint that Defendant did not answer. 20. [sic]. Denied. There is no requirement that the Order in question set forth Defendant's Answer was due twenty days from the date of the Order. 21 [sic]. Denied. All pleadings are required to be sent to the counsel of record. 22 [sic]. Denied. Rule 237.1(b) contradicts Defendant's legal conclusion. was set items. 23 [sic]. Denied. Defendant was served with a true and correct copy of all filings. By way of further denial, this Court sent to Defendant a copy of the Order at the time the Order was entered. 24 [sic]. Denied. It is denied that Defendant maintains a meritorious defense admitted possession of jewelry belonging to Plaintiff and the improper disposition thereof. 25 [sic]. Denied. The conduct at issue in this case clearly merits attorney fees damages as contained in the judgment. The conduct at issue is similar to conduct that has been other creditors of Defendant in prior lawsuits where Defendant accepted product only to cor product without payment. This case presents a more egregious scenario in that Plaintiff cor consumer - whereas Defendant's conduct in prior cases occurred in a commercial setting. 26 [sic]. Denied. The judgment complies with the Rules of Civil Procedure. 27 [sic]. Denied. The failure to act has not been explained. There is no meritorioL Defendant seeks delay. Plaintiff would suffer prejudice from the opening of the judgment, as D1 and has been the Defendant on numerous collection lawsuits in recent years and is likely to have dissipated by such litigation. Wherefore, Plaintiff demands that Defendant's Petition be denied. Respectfully submitted, David J. Lanza Attorney I.D. No. 55782 2132 Market Street Camp Hill, PA 17011 Telephone (717) 730-3775 Attorney for Plaintiff dant has nd treble Ileged by Pert such ,titutes a defense. is his assets 303-1 VERIFICATION I, David Lanza, verify that the statements made in the foregoing Answer are true and correct to the best of my knowledge, information and belief. The aforesaid statements constitute conclusions of law, matters of record and matters known exclusively to counsel. I understand that false statements herein are made subject to the penalties of 8 Pa. C.S. §4904 relating to unsworn falsification to authorities. Date: By: David Lanza CERTIFICATE OF SERVICE AND NOW, this 23d day of July 2012, the undersigned does hereby certify that he did this ate serve a copy of the foregoing document upon the other parties of record by causing same to be depo ited in the United States Mail, first class postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: Michael Rentschler, Esquire 2201 N. 2nd Street Harrisburg, PA 17110 id J. Lanza John M. Kerr, Esquire John Kerr Law, PC 5010 Ritter Road Suite 109 Mechanicsburg, PA 17050 Telephone: 717-766-4008 Facsimile: 717-766-4066 john@johnkerrlawpc. corn ALISON MARTINEK, Plaintiff vs. KEITH EISENSTEIN, - Defendant FILED -OFFICE OF THE P'ROTH0HOTAR ZO14 JUN -6 PM 2: 56 CUMBERLAND COUNTY : IN THE COURT OF COMMON : PLEAS, : CUMBERLAND COUNTY, : PENNSYLVANIA : No.: 2011-8793 : CIVIL DIVISION - LAW PRAECIPE FOR ENTRY OF APPEARANCE TO: David Buell, Prothontary Kindly enter the appearance of John M. Kerr, Esquire and John Kerr Law, P.C. as counsel for Plaintiff, Alison Martinek. Respectfully submitted, JOHN KERR LAW, P.C. June 6, 2014 Law of Qhn M. err 5010 RifCr Road Suite 109 Mechanicsburg, PA 17055 P1iore 717.766.4008 FAx 717.766.4066 Joh;' M. Kerr, Esquire PA D No. 26414 5010 Ritter Road Suite 109 Mechanicsburg, PA 17055 Telephone: 717-766-4008 Facsimile: 717-766-4066 iohn@johnkerrlawpc. corn CERTIFICATE OF SERVICE The undersigned hereby certifies that he has served a copy of the foregoing Praecipe for Appearance by U.S. First Class Mail, postage prepaid, as follows: Michael D. Rentschler, Esquire 2201 North 2nd Street Harrisburg, PA 17110 David J. Lanza, Esquire 2132 Market Street Camp Hill, PA 17011 June 6, 2014 )14 M. Kerr, Esquire