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HomeMy WebLinkAbout11-93152118418 THIS IS AN ARBITRATION MATTER. ASSESSMENT OF DAMAGES HEARING REQUIRED. GORDON & WEINBERG, P.C. BY: FREDERIC I. WEINBERG, ESQUIRE Identification No.. 41360 JOEL M. FLINK, ESQUIRE = Identification No.: 41200 ?i ?' y -' 1001 E. Hector Street, Ste 220 rr? rrz -=? r? -nom Conshohocken, PA 19428 ' 484/351-0500 '_- v {-, C) BARCLAYS BANK DELAWARE COURT OF COMMON PLEAS 125 S. West Street CUMBERLAND COUNTY Wilmington, DE 19801 1 VS. DOCKET NO. LEROY K STEHMAN 1526 W TRINDLE RD CARLISLE PA 17015-9759 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 JUDGEMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR 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. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. BEDFORD STREET CARLISLE, PA 17013 (717) 249-3166 a 00 wk %q o ' P, 1? . COMPLAINT IN CIVIL-ACTION 1. At all times relevant hereto, the defendant(s) was the holder of a credit card, which at the request of the defendant (s) was issued to the defendant(s) by the plaintiff under the terms of which the plaintiff agreed to extend to defendant(s)the use of plaintiff's credit facilities. 2. Defendant(s) accepted and used the aforesaid credit card so issued and by so doing agreed to perform the terms and conditions prescribed by the plaintiff for the use of said credit card. 3. The defendant (s) received and accepted goods and merchandise and/or accepted services or cash advances through the use of the credit card issued by the Plaintiff. A true and correct copy of the Statement of Account or Affidavit of Account, if available, is attached hereto as Exhibit "A". 4. All the credits to which the defendant(s)is entitled have been applied and there remains a balance due as of December 5, 2011 in the amount of $6,892.62. 5. Plaintiff has made demand upon the defendant (s) for payment of the balance due but the defendant(s)has failed and refused and still refuses to pay the same or any part thereof. 6. Defendant's last payment on account was made on 9/3/2010. WHEREFORE, plaintiff claims of the defendant(s) the sum of $6,892.62 plus applicable costs, interest and attorney's fees. GORDON & WEINBERG, P.C. BY: FREDERIC I. W NB RG, ESQUIRE JOEL M. FLINK, ES UIRE Attorney for P ntiff 2118418 BARCLAYS BANK DELAWARE LEROY K STEHMAN 5140218025812616 VERIFICATION I hereby state that I am the agent for the plaintiff herein, and that the facts set forth in the attached Affidavit which is incorporated by reference in the foregoing Complaint in Civil Action are true and correct to the best of my knowledge, information and belief and is based upon information which plaintiff has furnished to counsel. The language in the Complaint is that of counsel and not of plaintiff. To the extent that the contents of the Complaint are that of counsel, plaintiff has relied upon counsel in making this verification. This verification is made subject to 18 Pa.C.S. 54904 which provides for certain penalties for making false statements. NAIM 2118418 BARCLAYS BANK DELAWARE LEROY K STEHMAN 5140218025812676 State of Delaware § County of New Castle § AFFIDAVIT I, knC)L ), being duly served sworn according to law, depose and say tha 1. I am the authorized representative of the Plaintiff herein and I have custody and control of the files relating to this account; 2. Plaintiff's files are maintained in the usual and ordinary course of business; 3. This action is based on a claim for breach of contract and that damages are sought as a direct result of said breach; 4. There is now due and owing from defendant to plaintiff, the amount of $6,892.62 plus interest of $.00 at the rate of 0% less credits in the amount of $.00 totaling $6,892.62 as of 10/14/11. 5. If called upon, affiant can testify at trial as to the facts pertaining to this matter. The above facts are true and correct to the best of my knowledge, information and belief. AFFIANT``???111 i I 1 ! ll!/?/ Sworn to and Subscribed \\\ aON / before me this '?' &Mj o r 1k f? ?•?? t'•• Z ?io? • • •jTP??I?•sv` otary Public a7 AT-6 ?'\r P120 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor 1NLEU-0FF1`c O THE PROTHONO AR r 2011 DEC 29 AM 8: 32 CU PENN YLVANIA TY Barclays Bank Delaware Case Number vs. Leroy K Stehman 2011-9315 SHERIFF'S RETURN OF SERVICE 12/20/2011 05:21 PM - Ryan Burgett, Deputy Sheriff, who being duly sworn according to law, states that on December 20, 2011 at 1721 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Leroy K. Stehman, by making known unto Stacey Powell, adult in charge at 1526 W. Trindle Road, Carlisle, Cumberland County, Pennsylvania 17015 its contents and at the same time handing to her personally the said true and correct copy of the same. SHERIFF COST: $34.00 December 21, 2011 RYAN BURGETT, DEPU SO ANSWERS, RON R ANDERSON, SHERIFF ;c Gount,Suite She-iTt, ieieo.=.ott. 6-.,,; BARCLAY'S BANK DELAWARE, : COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. No: 11-9315- CIVIL TERM LEROY K STEHMAN, Civil Action - Law Defendant : NOTICE TO PLEAD i - rn To: Barclay's Bank Delaware o c/o Frederic I. Weinberg, Esquire ,moo Gordon & Weinberg, P.C. xa 1001 E. Hector Street, Ste 220 --= 77 -- ?' Conshohocken, PA 19428 You are hereby notified to plead to the enclosed Preliminary Objections within twenty (20) days from the date of service hereof or a default judgment may be entered against you. Date: C-?-1Z R ctf I Su itted, i.t M hael J. P sh, Esquire I. D. # 58851 2132 Market Street Camp Hill, Pennsylvania 17011 (717) 975-9446 Attorney for Defendant Michael J. Pykosh, Esquire ID # 58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone - (717) 975-9446 Fax - (717) 975-2309 movkosh(ZDdylctlaw com Attorney for Defendant BARCLAY'S BANK DELAWARE, : COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. No: 11-9315- CIVIL TERM LEROY K STEHMAN, Civil Action - Law Defendant DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes the Defendant, Leroy K Stehman, by and through his attorneys Dethlefs-Pykosh Law Group, LLC, by Michael J. Pykosh, Esquire, who files his Preliminary Objections to the Plaintiff's Complaint, and avers as follows: Plaintiff filed suit against Defendant alleging that Defendant owes money to Plaintiff arising out of an account issued by Barclay's Bank Delaware of which Plaintiff Claims to be the Original Creditor. Comp. ¶ 1 and 3. 2. The Complaint was filed on December 19, 2011. First Preliminary Objection- Pa. R.C.P. 1028(a)(2)- Failure to conform to rule of court (failure to state whether agreements is oral or written, state its terms, and/or attach written contract upon which the claim is based) 3. The Complaint avers the existence of some type of contract between the parties, referred to as the "account." 4. Pursuant to Pa. R.C.P. 1019(h), where a claim asserted is based upon an agreement, the pleading must state whether the agreement is oral or written. 5. The Complaint does not indicate whether the agreement is oral or written. 6. Pursuant to Pa. R.C.P. 1019(i), if the agreement is written, it must be attached to the pleading or, if not, the pleader must explain its absence and set forth the substance of the agreement. More specifically, Plaintiff has failed to attach the original Loan/Credit Agreement signed and dated, including both original and amended terms and conditions applicable to the credit card agreement. Asset Acceptance, LLC v Margaret Madden Order dated March 18, 2009, No. 2912 of 2008 GD (Fayette County 2009) citing Atlantic Credit & Finance, Inc. v Guiliana, 829 A.2d 340 (Pa. Super. 2003). Plaintiff has also failed to attach "other periodic mailings detailing changes to the terms of the contract Remit Corporation v Miller, 5 Pa. D&C 5th 43, 45 (Centre Cty., 2008) 7. Plaintiff has failed to describe the terms of the agreement nor has attached a copy of a written agreement or explained its absence. Second Preliminary Objection- Pa. R.C.P. No. 1028(a)(4)- Demurrer 8. Plaintiff has failed to allege facts sufficient to maintain a cause of action for Breach of Contract. Third Preliminary Objection- Pa. R.C.P. No. 1028(a)(3) 9. The Complaint contains only a general assertion of the amount the Plaintiff claims is owed by the Defendant. It provided no detail as to the date(s) on which the debts were incurred, the amounts incurred on each date, the dates or amounts of payments, nor dates of accrual and amounts of interest charges and other fees. 10. Pa. R.C.P. No. 1019 and Pa. R.C.P. 1028(a)(3) require that the above detail be included in a Complaint of this type. 11. By not including the requisite detail of the account, the Complaint fails to conform to an express rule of Court. Fourth Preliminary Objection- Pa. R.C.P. 1028(a)(2) Failure to Conform to Law or Rule of Court 12. Pursuant to Pa. R.C.P. 1028(a)(2), a party may file a Preliminary Objection based upon the failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter. 13. Plaintiff's Complaint is based upon a contract. 14. Plaintiff asserts a cause of action based upon an account stated theory of recovery. 15. An account stated theory of recovery is not applicable in credit card cases. Capital One Bank (USA) NA v Cleverstine 7 Pa. D&C 5th (Ct. Com. PI. Centre Ctv 2009). JMMM PC Company v Patricia Stillwagon 2011 Pa. D&C Dec. Lexis 24 (Luzerne CD. 16. Plaintiff in pleading account stated cause of action is not permitted to escape pleading requirements otherwise applicable. CitiBank (South Dakota, N.A.) v Xenofon Skaboulos 2009 No. 09-8676 (Cumberland Cty). WHEREFORE, the Defendant respectfully requests that her Preliminary Objections be sustained, and that Plaintiff's Complaint be dismissed with prejudice. Respectf Submitted, Date: I- t -L 0 Mi a J. Pykosh, Esquire I. D. # 58851 2132 Market Street Camp Hill, Pennsylvania 17011 (717) 975-9446 Attorney for Defendant BARCLAY'S BANK DELAWARE, : COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. No: 11-9315- CIVIL TERM LEROY K STEHMAN, Civil Action - Law Defendant CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Defendant, Leroy K Stehman's, Preliminary Objections to Plaintiffs Complaint, was hereby served by depositing the same within the custody of the United States Postal Service, First Class, postage prepaid, addressed as follows: Barclay's Bank Delaware c/o Frederic I. Weinberg, Esquire Gordon & Weinberg, P.C. 1001 E. Hector Street, Ste 220 Conshohocken, PA 19428 Respectfujly Submitted, Date: Michael J. Rykosh, Esquire I.D. # 58851 2132 Market Street Camp Hill, Pennsylvania 17011 (717) 975-9446 Attorney for Defendant VERIFICATION I, Leroy K Stehman, hereby verify that the statements of fact made in the foregoing documents are true and correct to the best of my personal knowledge, information and belief. I understand that any false statements therein are subject to the criminal penalties contained in 18 Pa C. S. Section 4904, relating to unsworn falsification to authorities. Date: C- - (- Leroy K Stehman N/A' PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for theextczz, Argument Court.) -E7 a .r- rn m rrt CAPTION OF CASE z %D 7o (entire caption must be stated in full) u",� .<.. tom) r— BARCLAYS BANK DELAWARE <, c VS. ?Y .. --{ -- LEROY K. STEHMAN No. 9315 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: JOEL M. FLINK, ESQ. 1001 E. HECTOR ST., STE. 220, CONSHOHOCKEN, PA 19428 (Name and Address) MICHAEL J. PYKOSH, ESQ., 2132 MARKET ST., CAMP HILL, PA 17011 (b) for defendants: (Name and Address) 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Date: l/L INSTRUCTIONS: Si gnat e Print your name PLAINTIFF Attorney for 4/9,75e0/ /11-'� 1. Original and two copies of all briefs must be filed with the COURT e 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. 30.2353 BARCLAYS BANK DELAWARE, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA VS. : CIVIL ACTION — LAW : NO. 11-9315 CIVIL LEROY K. STEHMAN, Defendant IN RE: PRELIMINARY OBJECTIONS OF THE DEFENDANT BEFORE HESS, P.J., AND MASLAND, J. ORDER AND NOW, this day of April, 2014, the Preliminary Objections of the defendant are SUSTAINED. The plaintiff is granted leave to file an Amended Complaint within thirty (30) days. /Joel M. Flink, Esquire 1001 E. Hector Street, Suite 220 Conshohocken, PA 19428 For the Plaintiff /Michael J. Pykosh, Esquire 2132 Market Street Camp Hill, PA 17011 For the Defendant :rlm BY THE COURT, Michael J. Pykosh, Esquire ID # 58851 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone — (717) 975-9446 Fax — (717) 975-2309 MPvkosh(a).d o to law. com BARCLAY'S BANK DELAWARE, Plaintiff v. LEROY K STEHMAN, Defendant il_EiJ C��t=ly. %•t= THE PROTHONJ ii,i,1 014 HAY 19 Phi 3: 5 CUMBERLAND COUNTY P E N N S Y LVA titiAney for Defendant : COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA • • • • No: 11-9315— CIVIL TERM Civil Action - Law MOTION FOR JUDGMENT AND NOW, comes the Defendant, Leroy K. Stehman, by and through his counsel the Dethlefs-Pykosh Law Group, LLC, by Michael J. Pykosh, Esquire, who avers the following in support of for Judgment pursuant to Pa. R.C.P. 1037(c): 1. On December 19, 2011, Plaintiff filed a Complaint alleging that Defendant owed Plaintiff money arising from a credit card account. 2. On January 10, 2012, Defendant filed Preliminary Objections to Plaintiff's Complaint. 3. On March 3, 2014, Plaintiff filed a Praecipe to List Case for Argument. Argument was scheduled for April 4, 2014. 4. On April 16, 2014, an Order of Court was executed by Kevin A. Hess, J (attached hereto as "Exhibit "A" and made apart hereof). Plaintiff was ordered to file an Amended Complaint within thirty (30) days from the date of said Order. 5. More than thirty (30) days from the date of said Order have lapsed and Plaintiff has failed to file an Amended Complaint. 6. Plaintiff has failed to comply with the aforesaid Order of Court. 7. Plaintiffs counsel, Joel M. Flink, indicated that he does not concur with this Motion. WHEREFORE, Defendant, Leroy K. Stehman, respectfully requests that this Honorable Court dismiss the Plaintiff's Complaint with Prejudice. Respec Ily Submitted, Date: 5-I li /I Michael J. Pykosh, Esquire I.D. # 58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 975-9446 Attorney for Defendant BARCLAYS BANK DELAWARE, : IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION — LAW : NO. 11-9315 CIVIL LEROY K. STEHMAN, Defendant IN RE: PRELIMINARY OBJECTIONS OF THE DEFENDANT BEFORE HESS, P.J., AND MASLAND, J. ORDER c.n c.r.1 AND NOW, this day of April, 2014, the Preliminary Objections of the defendant are SUSTAINED. The plaintiff is granted leave to file an Amended Complaint within thirty (30) days. Joel M. Flink, Esquire 1001 E. Hector Street, Suite 220 Conshohocken, PA 19428 For the Plaintiff Michael J. Pykosh, Esquire 2132 Market Street Camp Hill, PA 17011 For the Defendant :rlm BY THE COURT, EXHIBIT Michael J. Pykosh, Esquire ID # 58851 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone — (717) 975-9446 Fax — (717) 975-2309 MPykosh@dpIglaw.com Attorney for Defendant BARCLAY'S BANK DELAWARE, : COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. LEROY K STEHMAN, Defendant • No: 11-9315— CIVIL TERM Civil Action - Law CERTIFICATE OF SERVICE hereby certify that a copy of the foregoing Defendant's Motion for Judgment pursuant to Pa. R.C.P. 1037(c), was hereby served by depositing the same within the custody of the United States Postal Service, First Class, postage prepaid, addressed as follows: CACH, LLC c/o Joel M. Flink, Esquire Gordon & Weinberg, P.C. 1001 E. Hector Street, Suite 220 Conshohocken, PA 19428 Date:5/ /Vii-1 Res ectfuJy Submitted, Michael J. Pykosh, Esquire I.D. # 58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 975-9446 Attorney for Defendant 2118418 GORDON & WEINBERG, P.C. BY: FREDERIC I. WEINBERG, ESQUIRE Identification No.: 41360 JOEL M. FLINK, ESQUIRE Identification No.: 41200 1001 E. Hector Street, Ste 220 Conshohocken, PA 19428 484/351-0500 Copy 11)c� BARCLAYS BANK DELAWARE vs. LEROY K STEHMAN COURT OF COMMON PLEAS CUMBERLAND COUNTY DOCKET NO. : 11 -9315 -CIVIL PRAECIPE TO WITHDRAW COMPLAINT TO THE PROTHONOTARY: Kindly withdraw the above -captioned action, without prejudice. GORDON & WEINBERG, P.C. BY: P006 FREDERIC JOEL M. At torn 1 etINBERG, ESQUIRE I, ESQUIRE for Plaintiff CERTIFICATION OF SERVICE I, JOEL M. FLINK, ESQUIRE, hereby certify that I, on the date. below, served a copy of the Praecipe to Withdraw Complaint to Pa.R.C.P. 1028(c)(1), via First Class Mail, postage pre -paid, to all other parties or their counsel of Dated JOEL M. F�LI1k, ESQUIRE GORDON & WEINBERG, P.C. BY: JOEL M. FUNK, ESQUIRE BY: FREDERIC I. WEINBERG, ESQUIRE Attorney I.D. No. 41200/41360 1001 E. Hector Street, Suite 220 Conshohocken, PA 19428 (484) 351-0500 Fax (484) 351-0501 Barclays Bank Delaware Plaintiff 2L'tt, JUN_S CUMBERL PENNS AND COUNTY A Attorneys for Plaintiff CUMBERLAND COUNTY COURT OF COMMON PLEAS v. Leroy K. Stehman NO. 11-9315 - CIVIL Defendant ANSWER TO DEFENANT'S MOTION TO DISMISS WITH PREJUDICE Plaintiff, by and through its undersigned attorneys, does here by respond to Defendant's Motion to Dismiss With Prejudice as follows: 1. - 7. Admitted in part. Denied in part. Admitted except to the extent that the Plaintiff has filed a voluntary dismissal of the action. A true and correct copy of the discontinuance is attached hereto as Exhibit "A"., WHEREFORE, Plaintiff requests this Honorable Court deny the relief requested by the Defendant. GORDON & WEINBERG, P.C. Dated: C2 -3 - / `( BY: JOEL . INK, ESQUIRE F C I. WEINBERG, ESQUIRE EXHIBIT "A" VERIFICATION Understanding that false statements herein made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities, I verify that I am an authorized representative of plaintiff, and that the facts set forth above are true and correct to the best of my knowledge, information and belief. 2118418 GORDON & WEINBERG, P.C. BY: FREDERIC I. WEINBERG, ESQUIRE Identification No.: 41360 JOEL M. FLINK, ESQUIRE Identification No.: 41200 1001 E. Hector Street, Ste 220 Conshohocken, PA 19428 484/351-0500 BARCLAYS BANK DELAWARE vs. LEROY K STEHMAN COURT OF COMMON PLEAS CUMBERLAND COUNTY DOCKET NO. : 11 -9315 -CIVIL PRAHCIPE TO WITHDRAW cpMPLAINT TO THE PROTHONOTARY: Kindly Withdraw the above -captioned action, without prej'Udice. P006 GORDON & WEINBERG, P.C. BY: FREDERIC JOEL M. At torn E'INBERG, ESQUIRE K, ESQUIRE for Plaintiff 44 CERTIFICATION OF SERVICE I, JOEL M. PLINK, ESQUIRE, hereby certify that I, on the date below, served a copy of the Praecipe to Withdraw Complaint to Pa.R.C.P. 1028c)(1):, via First Class Mail, postage pre -paid, to all other parties or their counsel of record? Dated JOELM,/,F4J, ESQUIRE GORDON & WEINBERG, P.C. BY: JOEL M. FUNK, ESQUIRE BY: FREDERIC I. WEINBERG, ESQUIRE Attorney I.D. No. 41200/41360 1001 E. Hector Street, Suite 220 Conshohocken, PA 19428 (484) 351-0500 Fax (484) 351-0501 Barclays Bank Delaware Plaintiff v. Attorneys for Plaintiff CUMBERLAND COUNTY COURT OF COMMON PLEAS Leroy K. Stehman NO. 11-9315 - CIVIL Defendant . MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS WITH PREJUDICE This action has been voluntarily discontinued in a timely manner in accordance with Pa.R.C.P. 229(a). Sharp v. Zmiejko, 85 Pa. D. & C. 484, 1953 WL 4661 (C.P. 1953). The law with respect to the dismissal of a Complaint on the basis of preliminary objections was stated as follows in Framlau Corp. v. Delaware County, 223 Pa.Super. 272, 299 A.2d 335 (1972): In the event a demurrer is sustained because a complaint is defective in stating a cause of action, if it is evident that the pleading can be cured by amendment, a court may not enter final judgment, but must give the pleader an opportunity to file an amended complaint. Stevens v. Doylestown Bldg. and Loan Assoc., 321 Pa. 173, 183 A. 922 (1936). This is not a matter of discretion with the court but rather a positive duty. Winters v. Penna. R. Co., 304 Pa. 243, 155 A. 486 (1931), United Mercantile Agencies v. Slotsky, 107 Pa.Super. 467, 164 A. 349 (1933). In this action on a credit card filed by the issuer there is no basis of the court to conclude that the cannot cure that objections set forth by Defendant which are directed to the specificity of the pleading and failure to attach documentation. The striking of the Complaint is an extreme remedy not warranted under the circumstances. If a pleading can be cured by amendment following court's sustaining of preliminary objections, the court must give the pleader an opportunity to file an amended complaint; this is not a matter of discretion with the court but rather a positive duty. Jones v. City of Philadelphia, 893 A.2d 837 Pa.Cmwlth,.2006), reargument denied, appeal denied 909 A.2d 306, 589 Pa. 733. The Superior Court has held that absent a showing of prejudice a late filed Complaint should be permitted. Slaybaugh v. Newman, 441 A.2d 429 (Pa.Super. 1982). Burdumy v. Ohio Cas. Ins. Co., 24 Pa. D. & C.2d 623, 1961 WL 6427 (C.P. 1961)(holding that if the Plaintiff had the option to withdraw and re -file the late filing should be permitted). In a subsequent case, Muth v. Ridgeway Tp. Mun. Authority, 8 A.3d 1022 (Pa.Cmwlth. 2011), the Commonwealth Court found that the lower court properly struck a late filed Amended Complaint distinguishing Slaybaugh, supra., by the length of the delay (69 days versus 2 days in Slaybaugh) and the fact that no excuse for the late filing was provided by Muth. The Commonwealth Court reaches its conclusion despite no mention of time or reason by the Superior Court in the Slaybaugh, supra. In addition, the Commonwealth Court in Muth completely fails to reckon the holding in Newman. The Commonwealth Court in Muth determined that the lower court had the authority to, in effect, sanction the plaintiff. While Plaintiff believes Muth is wrongly decided, should this Court consider it authoritative, Muth the Plaintiff would still have had an opportunity to request the court permit a late filing had Plaintiff chosen to file the amended compliant. It is important to note that the statute of limitations has yet to run on this action. The Complaint alleged that the last payment made by Defendant was on September 3, 2010, still within the applicable four year statue of limitations. GORDON & WEINBERG, P.C. By: JOEL M . f K,'ESQUIRE FRED C I. WEINBERG, ESQUIRE GORDON & WEINBERG, P.C. BY: JOEL M. FLINK, ESQUIRE BY: FREDERIC I. WEINBERG, ESQUIRE Attorney I.D. No. 41200/41360 1001 E. Hector Street, Suite 220 Conshohocken, PA 19428 (484) 351-0500 Fax (484) 351-0501 Barclays Bank Delaware v. Leroy K. Stehman Plaintiff Defendant . Attorneys for Plaintiff CUMBERLAND COUNTY COURT OF COMMON PLEAS NO. 11-9315 - CIVIL CERTIFICATE OF SERVICE Pursuant to penalties of 18 Pa. C.S.A. Section 4904, the undersigned verifies that the Answer and Memorandum of Law in Opposition to Defendant's Motion to Dismiss for Failure to Respond was served upon the below designated, this date, in the manner noted: Michael J. Pykosh, Esquire Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, PA 17011 by first class mail. By: Date: 6-3-/`( JOEL / FLINK, ESQUIRE F' " ' RIC I. WEINBERG, ESQ. eys for Plaintiff BARCLAYS BANK DELAWARE, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION — LAW : NO. 11-9315 CIVIL LEROY K. STEHMAN, Defendant IN RE: MOTION FOR JUDGMENT ORDER AND NOW, this £ ' day of June, 2014, the within Motion for Judgment is DENIED without prejudice to the defendant to proceed pursuant to Pa.R.C.P. 1037. BY THE COURT, ✓Joel M. Flink, Esquire 1001 E. Hector Street, Suite 220 Conshohocken, PA 19428 For the Plaintiff ✓Michael J. Pykosh, Esquire 2132 Market Street Camp Hill, PA 17011 For the Defendant :rim i•ESPatc.L.J � LIL,,fIV Kevin ; Hess, P.J. cY ..I C..)