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HomeMy WebLinkAbout04-4811J TIMOTHY J. BLACK 7502 Moyer Rd. Harrisburg, Pennsylvania 17112 and MOBILITY INDEPENDENT TRANSPORTATION SERVICES, INC. 11448 North Main Street Glen Rock, Pennsylvania 17327, Plaintiffs V. DAVID A. CLOUSER, t/a, d/b/a WEST SHORE PRE-OWNED 4701 Fritchey Street Harrisburg, Pennsylvania 17109, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 0 V -`18 /1 Cl aut.l CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the 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, 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 REDUCED FEE OR NO FEE. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (800) 990-9108 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes p4ginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despu6s de la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin m6s aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (800) 990-9108 SHUMAKER WILLIAMS, P.C. Dated: C1 By ( cjWN,4 n _ W, Laurence W. Dague, I.D. #1715 Melissa A. Swauger, I.D. #82382 P.O. Box 88 Harrisburg, PA 17108 (717) 763-1121 Attorneys for Plaintiff TIMOTHY J. BLACK: 7502 Moyer Rd. Harrisburg, Pennsylvania 17112 and MOBILITY INDEPENDENT TRANSPORTATION SERVICES, INC. 11448 North Main Street Glen Rock, Pennsylvania 17327, Plaintiffs V. DAVID A. CLOUSER, t/a, d/b/a WEST SHORE PRE-OWNED 4701 Fritchey Street Harrisburg, Pennsylvania 17109, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. U y. y Sll ?cP ?.t CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT NOW COME Plaintiffs, Timothy J. Black and Mobility Independent Transportation Services, Inc. ("MITS"), through their attorneys Shumaker Williams, P.C. to state the following: Plaintiff Timothy J. Black is an adult individual who resides at 7502 Moyer Road, Harrisburg, Dauphin County, Pennsylvania. 2. MITS is a Pennsylvania business corporation which maintains its registered office at 11448 N. Main Street, Glen Rock, York County, Pennsylvania, and Plaintiff Black is President of MITS. 3. Defendant David A. Clouser is an adult individual who, based upon information and belief, resides in Dauphin County, Pennsylvania, but who has attempted to hide his place of residence; however, his usual place of business is his place of employment at Cantone's Restaurant, 4701 Fritchey Street, Harrisburg, Pennsylvania 17109. 4. The fictitious name "West Shore Pre-Owned" is formally registered to Defendant, who has traded and done business as West Shore Pre-Owned at all times relevant to this matter and has represented to Plaintiffs that both he and his brother, Gregory T. Clouser, were entitled to do so. In or about October of 2002, both Plaintiffs entered into separate agreements with Defendant and his brother Gregory T. Clouser who were both trading under the fictitious name of West Shore Pre-Owned, those agreements not being written. 6. MITS agreed to provide vehicles to Defendant on consignment, and Defendant agreed to sell those vehicles and pay the assigned value of each to MITS. Plaintiff Black agreed to provide vehicles and capital investments in Defendant's business, and, in return, Defendant agreed that half of the proceeds of every car sale made by Defendant (including any profit made upon the sale of vehicles assigned by MITS) would be paid to Plaintiff Black. 8. As part of their agreement, Defendant also promised to add Plaintiff Black's name to the title of every vehicle purchased by the business for resale in order to assure the promised payments to him. 9. Pursuant to its agreement with Defendant, MITS did supply Defendant with six vehicles on consignment which had a total, assigned value of $39,148.59. 10. Pursuant to his agreement with Defendant, Plaintiff Black supplied Defendant with two vehicles (pick-up trucks) for resale which had a total value of sixteen thousand four hundred dollars ($16,400). 2 11. Pursuant to his agreement with Defendant, Plaintiff Black paid a total amount of ninety-two thousand, one hundred and ninety-eight dollars ($92,198) to Defendant as his investment in the business. 12. Defendant did, in fact, sell the six vehicles supplied on consignment by MITS. 13. Defendant failed to pay any portion of the proceeds of the sale of those six vehicles to MITS or Plaintiff Black and refused repeated requests for those proceeds. 14. Defendant made many sales of other vehicles, including the two supplied by Plaintiff Black, subsequent to the agreement between them. 15. Defendant has failed to pay any portion of the proceeds of the sale of those vehicles to Plaintiff Black and has refused repeated requests for those proceeds. 16. Defendant also failed and refused to add Plaintiff Black's name to the title of vehicles purchased or otherwise obtained by Defendant for resale by the business. 17. In or about October of 2003, the parties discussed Plaintiff's desire to obtain a vehicle for usage by his son. 18. Defendant entered into another agreement ("secondary agreement") with Plaintiff Black to obtain a suitable vehicle for him at an auto auction providing that Plaintiff Black supply the funds necessary for that purchase. 19. In or about October of 2003, Defendant did purchase a 1999 Jeep Cherokee for the amount of four thousand five hundred dollars ($4,500), which had been supplied by Plaintiff Black for that purpose. 20. Contrary to the parties' agreement, that vehicle was not, in fact, suitable because it had a number of mechanical problems, including but not limited to, a bad transmission. 21, As a result of that breach of the parties' agreement, Plaintiff was forced to expend the sum of six hundred dollars in an attempt to repair the Jeep Cherokee so that it would conform to the parties' agreement. 22. Those repairs were, however, unsuccessful because the vehicle could not be properly prepared. 23. As a result, the parties agreed that Defendant would resell the vehicle at auction and would pay the entire proceeds of that sale to Plaintiff Black. 24. Based upon information and belief, Plaintiff avers that Defendant did, in fact, resell the 1999 Jeep Cherokee at auction or otherwise. 25. Defendant has failed and refused to pay any portion of the proceeds from the resale of the Jeep Cherokee to Plaintiff. Count I - Plaintiff Black vs. Defendant 26. The averments of paragraphs 1 through 25 above are incorporated herein by reference. 27. Defendant breached his agreement with Plaintiff Black by failing to pay one half of the proceeds of each sale by him of a vehicle other than vehicles consigned by MITS and by failing to pay one half of the profit made on the vehicles consigned by MITS. 28. Defendant breached his agreement with Plaintiff Black by failing and refusing to put Plaintiff Black's name on the title of every vehicle purchased by Defendant for resale or supplied by Plaintiff Black. 4 29. Defendant also breached his secondary agreements with Plaintiff to provide Plaintiff with a suitable vehicle for his son and his agreement to resell the purchased vehicle and pay the proceeds to Plaintiff. 30. As a direct result to Defendant's breaches of his agreement with Plaintiff Black, Plaintiff Black has lost his entire investment, the value of the two vehicles he supplied to Defendant, and the money expended by him in relation to the Jeep vehicle which amounts to a total loss of $115,698. WHEREFORE, Plaintiff Timothy J. Black respectfully requests that judgment be entered in his favor and against Defendant David A. Clouser in the amount of one hundred and eight thousand five hundred and ninety-eight dollars ($115,698) plus interest and costs. Count II - MITS vs. Defendant 31. The averments of paragraphs 1 through 30 above are incorporated herein by reference. 32. Defendant breached his agreement with MITS by failing to pay the assigned value of each of the six vehicles consigned by MITS to him. 33. As a direct result of Defendant's breach of his agreement with MITS, MITS has suffered damages in the amount of $39, 148.59. WHEREFORE, MITS respectfully requests that judgment be entered in its favor and against Defendant David A. Clouser an amount in excess of thirty-five thousand dollars plus interest and costs. Count III - Plaintiffs Black and MITS vs. Defendant 34. The averments of paragraphs 1 through 33 above are incorporated herein by reference. 35. Plaintiffs relied on the representations made by Defendant set forth above. 36. At all relevant times, Defendant intended to induce Plaintiffs to rely upon his representations. 37. At the time Defendant made representations, he knew those representations to be false, and he made those false representations knowingly and willfully for the purpose of defrauding the Plaintiffs. 38. Based upon information and belief, Plaintiffs aver that Defendant and his brother have, in fact, practiced fraud upon others by inducing others to invest in "West Shore Pre- Owned" and/or to entrust them with vehicles for re-sale and adopted such defrauding of others as a standard way of conducting business. 39. The aforesaid practices of fraud against Plaintiffs was not only intentional but was also willful, wanton, and outrageous. 40. In addition to the damages set forth above, Defendant should pay punitive damages to Plaintiffs. WHEREFORE, Plaintiffs respectfully request that judgment be entered in their favor and against Defendant David A. Clouser an amount in excess of twenty-five thousand dollars plus punitive damages, interest, and costs. SHUMAKER WILLIAMS, P.C. Dated: 9/a qo By U/v(2?G? ?nJ. 1?G1?JGy 1 ?3 Laurence W. Dague, I.D. #197A5 Melissa A. Swauger, I.D. #82382 P.O. Box 88 Harrisburg, PA 17108 (717) 763-1121 Attorneys for Plaintiffs :170284 3':0 FROM- T-W P 002/002 F-017 VERTFICA,TION The undersigned, Timothy J. Black, hereby verifies and states that: 1. He is the President of Mobility Independent Transportation Systems, Inc.; 21 The facts set forth in the foregoing Complaint are true and correct to the best of his knowledge, information and belief; and 3. He is aware that any false statements herein are made subject to the penalties of 18 Pa.C.S.A. §4904, relating to unsworn falsification to authorities. L'ated: Timot J. Black, President 170288 SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2004-04811 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BLACK TIMOTHY J ET AL VS CLOUSER DAVID A T/A/ D/B/A WES R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: CLOUSER DAVID A T/A D/B/A WEST SHORE PRE-OWNED but was unable to locate Him deputized the sheriff of DAUPHIN in his bailiwick. He therefore serve the within COMPLAINT & NOTICE County, Pennsylvania, to On October 21st , 2004 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep Dauphin County 31.25 Mileage 7.40 75.65 10/21/2004 SHUMAKER WILLIAMS J So answe R. 6m as Kline Sheriff of Cumberland County Sworn and subscribed to before me this d9 day of OC4-11 uv ( A.D. e1 r Prothonotary r Service was attempted by Cumberland County deputies at 40 Longview Drive Carlisle, PA 17013. Per neighbor, Harry Bickle has lived at given address for 5 years and neighbor has never heard of defendant. In The Court of Common Pleas of Cumberland County, Pennsylvania Timothy J. Black et al David A. CVVlosuser t/a d/b/a West Shore Pre-Owned No. 04-4811 civil Now, September 30, 2004 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, within 120 , at o'clock M. served the upon Y_ at by handing to a and made known to copy of the original the contents thereof. So answers, Sheriff of County, PA Sworn and subscribed before me this day of 20 COSTS SERVICE $ NULEAGE AFFIDAVIT offi'?C e Priff Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 255-2660 fax: (717) 255-2889 Jack Lotwick Sheriff Commonwealth of Pennsylvania . BLACK TIMOTHY J vs County of Dauphin CLOUSER DAVID A Sheriff's Return No. 6706-T - - -2004 OTHER COUNTY NO. 04 4811 J. Daniel Basile Chief Deputy Michael W. Rinehart Assistant Chief Deputy I, Jack Lotwick, Sheriff of the County of Dauphin, State of Pennsylvania, do hereby certify and return, that I made diligent search and inquiry for CLOUSER DAVID A D/B/A WEST SHORE PRE-OWNED the DEFENDANT named in the within COMPLAINT and that I am unable to find him/her in the County of Dauphin, and therefore return same NOT FOMM, October 11, 2004 NBA-PER KELLY DEAVLIN (MANAGER AT CANTONE'S RESTAURANT) DEFENDANT WAS EMPLOYED THER UNTIL ONE MONTH AGO. SHE PROVIDED HOME ADDRESS OF 40 LONGVIEW DRIVE, CARLISLE, PA Sworn and subscribed to before me this 11TH day of OCTOBER, 2004 11 Al? NOTARIAL SEAL MARY JANE SNYDER, Notary Public Highspire, Dauphin County My Commission Expires Sept 1, 2006 So Answers, Alc- r? Sheriff of Dauphin County, Pa. By Deputy Sheriff Sheriff's Costs:$31.25 PD 10/08/2004 RCPT NO 200336 TIMOTHY J. BLACK, et al. vs Case No. 04-4811 DAVID A. CLOUSER Statement of Intention to Proceed To the,Court: Plaintiffs intends to proceed with the above captioned matter. Print Name Laurence W. Dague, Esq. sign Name Date: November 1, 2007 Plaintiffs Attorney for xxplanatory Comment The Supreme Corot of Pennsylvania has promulgated new Rule of Civil Procedure 2302 governing the termination of inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the reearrnnea cation merit comment 1. Rule of dvil Procah" New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the scope of the Pennsylvania Rules of Civil Procedure. The tenninstion of these cases for inactivity was previously governed by Rule of Judicial Administration 1901 and local rules promulgated print to it New Rule 230.2 is tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting local rules. This rule was proaailgated in response to the decision of the Supreme Court in Shop v. Eagle, 551 Pa. 360,710 A.2d 1104 (1998) in which the court held list "prejudice to the defendant ass a result of delay in prosecution is required before a ease may be dismissed pursuant to local rules implerng Rule of Judicial Adminunatiori 1901." Rule of Judicial Administration 1901(b) has born amended to accommodate the new rule of civil procedure. The general policy of the prompt disposition of natters set forth in subdivision (a) of that rule continues to be applicable. 11 Inactive Cases The purpose of Rule 2302 is to eliminate inactive cam from the judicial system. Thee prooeas is initiated by the court After giving notice of intent to arminate an action for inactivity, the coum of the procedure is with the parties. If the parties do not with to pu rwe the case, they will take no action and "the Fmthanotary? shall ceder an order as of course taming the matter with prejudice for failure to prosecute." If a party wishes to pursue the matter, he or she will file a notice of intention to proceed and the action shan continue. a. Where the aedm has been towixato d If the action is terminated when a party believes that it should not have beer terminated, that party may. proceed under Rule230(d) for relief from the order of tam. An example of such an occurrence might be the termination of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file the notice of intention to proceed. The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of the envy of the order of termination on the dodoes, subdivision (d)(2) provides that the court neat great the petition and remstste the action. If the petition is filed low than the dirty=day period, subdivision (d)(3) requires that the plaintiff waist make a show in to the court that the petition was promptly filed and that there is a reasonable explanstiori or legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of termination on the docket and for the failure to file the petition within the dusty-day period under subdivision (d)(2). B. Where the action has not beam terminwed An mom which has not bum terminated but which continues upon the filing of a notice of intention to proceed may have been the subject of inordinate delay. In such an ithslaace, the aggrieved party may pursue the randy of a common law non pros which exits independently of termination under Rule 230.2. r, ?,.., _ ?.ya j i .y>? f ???F ,: l '"?r, , - ? ? . -,... ' '• ? ? ? .r .c-" C? ?..? `?? irJ' :;? FIL~O-OF~fC~ TIMOTHY J . BLAC)~L and ~ f= ~ ~ ° R ~ ~' ~ O F~ ~1 TA, R MOBILITY INDEPENDENT TRANSPORTAION SERVICES , ENC . _ _ ____ r'~.O I O DC ~ ~ P~! 2~ ~ (J vs ~(~P~BE~L~~j~'~`$11 Civil Term ~~P,'~1S'r`I~.e~~~ ~~6 DAVID A. CLOUSER, t/a, d/b/a WEST SHORE PRE-OWNED Statement of Intention to Proceed To the Court: Plaintiffs intends to proceed with the above captioned matter. Print Name Laurence W . Da$ue _~ Sign Name . ~'~ Date: ~ o~ d Attorney for Plaintiffs Ezplanatory Continent The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of inactive cases and armnded Rule of Judicial Administration 1901. Two aspects of the recommendation merit comment. I. Rule of civil Procedure New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting local rules. This rule was promulgated in response to the decision of the Supreme Court in Shop v. Eagle, 551 Pa. 360,710 A.2d 1104 (1998} in which the court held that "prejudice to the defendant as a result of delay in prosecution is required before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901." Rule of Judicial Administration 1901(b) has been arrunded to accotttrrtodate the new rule of civil procedure. The general policy of the prompt disposition of matters set forth in subdivision (a) of that rule continues to be applicable. II Inactive Cases The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system The process is initiated by the court. After giving notice of intent to temrinate an action for inactivity, the course of the procedure is with the parties. If the parties do not wish to pursue the case, they will take no action and "the Prothonotary shall enter an order as of course terminating the matter with prejudice for failure zo prosecute." If a party wishes to pursue the matter, he or she will file a notice of intention to ptoce~ and the action shall continue. a. Where the action has been terminated If the action is terminated when a party believes that it should not have been terminated, that party may proceed under Ru1e230(d) for relief from the order of termination. An example of such an occurrence might be the termination of a viable action when the aggrieved parry did not receive the notice of intent to terminate and thus did not timely file the notice of intention to proceed. The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of the entry of the order of ternination on the docket, subdivision (dX2) provides that the court must grant the petition and reinstate the action. If the petition is filed later than the thirty-day period, subdivision (d)(3) r~uires that the plaintiff must make a showing to the court that the petition was promptly filed and that there is a reasonable explanation or legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of termination on the docket and for the failure to file the petition within the thirty-day period under subdivision (d)(2). B. Where the action has not been terminated An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a common law non pros which exits independently of termination under Rule 230.2. o SUM David D. Buell r'1 e p Renee X Simpson Prothonotary ' J 1S` Deputy Prothonotary - L d Z v �a\� �e a.r o Kirk S. Sohonage, ESQ 'zJ�%-�� Irene E. Morrow Solicitor 7750 2n' Deputy Prothonotary Office of the Prothonotary Cumberland County, cPennsyCvania 0 Y " h g'I CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 29TH DAY OF OCTOBER, 2013,AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE-THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R.C.P.230.2. BY THE COURT, DAVID D. BUELL PROTHONOTARY One Courthouse Square • Suite 100 • Carlisle, PA 17013 • (717)240-6195 • Fax(717)240-6573