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HomeMy WebLinkAbout13-2279 Supreme Court off' Pennsylvania Court�of,Coinmo>a Pleas For Prothonotary Use Only: T Civ1 over� Sheet Docket No: f STtA C E . ,. ! ' County UI The information collected on this form is used solely for court administration purposes. This form does not supplement or replace the filing and service of pleadings or other papers as required by law or rules of court. Commencement of Action: S JA Complaint © Writ of Summons ® Petition Transfer from Another Jurisdiction -1 Declaration of Taking C Lead Plaintiff's Name: , - Lead Defendant's Name: T E 0 5ml* 'Id l Xnc. �esl t3t>l Dollar Amount Requested: thin arbi tion limits I Are money damages requested? II Yes No (check one) _outside arbitration limits O N Is this a Class Action Suit? [3 Yes %No Is this an MDJAppeal? Yes b( No A Name of Plaintiff /Appellant's Attorney: Check here if you have no attorney (are a Self - Represented (Pro Se] Litigant) Nature of the Case Place an "X" to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim, check the one that you consider most important. TORT (do not include Mass Tort) CONTRACT (do not include Judgments) CIVIL APPEALS Intentional Buyer Plaintiff Administrative Agencies Q Malicious Prosecution Debt Collection: Credit Card ❑ Board of Assessment [ Motor Vehicle [ Debt Collection: Other Board of Elections 0 Nuisance Dept. of Transportation E] Premises Liability J Statutory Appeal: Other S 0 Product Liability (does not include 0 Employment Dispute: mass tort) Discrimination 0 Slander/Libel/ Defamation 0 C � Other. Employment Dispute: Other iJ Zoning Board Othe . T t1�h��r yt 1�hGC i ces I 3 Other: aha a ►tee v O MASS TORT Asbestos N ❑ Tobacco Toxic Tort - DES Q Toxic Tort -Implant REAL PROPERTY MISCELLANEOUS Toxic Waste n Ejectment 0 Common Law /Statutory Arbitration [3 Other: Eminent Domain/Condemnation Ij Declaratory Judgment B Ground Rent � Mandamus Landlord/Tenant Dispute Non - Domestic Relations Mortgage Foreclosure: Residential Restraining Order PROFESSIONAL LIABLITY C Mortgage Foreclosure: Commercial E Quo Warranto 0 Dental Partition 0 Replevin 0 Legal Q Quiet Title ❑ Other: Q Medical Other: Q Other Professional: Updated 1/1/2011 Hr PROTHONr TA,- Cumberland County Court r 1 Courthouse Squared APR Z Carlisle, PA 17013 t� CUMBERLAND COUNTY Civil Complaint P f NkS YLVANIA Leon Smith (Plaintiff) Dell Inc. (Defendant) Best Buy (Co- Defendant) 480 Stonehedge Lane 2300 Greenlawn Boulevard 7601 Penn Avenue Mechanicsburg, PA 17055 Round Rock, TX 78664 S. Minneapolis, MN 55423 H: (717) 620 -8290 C: (617) 699 -0894 1 3 — .2), rlq - /e n 73 P.S. 201 -1- 201 -9.3 Pennsylvania Unfair Trade Practices and Consumer Protection Law Complaint for Money The legal basis for my claim is defective product, failure to honor warranty, and public policy /interest. On December 16, 20111 purchased a Dell Laptop from Best Buy Online. It shipped out a few days later, however, the delivery person left it on the snow and wet ground and the computer made a funny noise so I had to return it. Best Buy required that I purchase a new computer while they would send me a return label (so I wouldn't have to pay for the cost of returning it). Then on February 29, 2012 the motherboard on the computer was fried and needed to be replaced. Moving forward in time, something odd happened to my computer, the memory was completely used up. I searched for reasons why and had no answers. I called Dell Support and they had to walk me through resetting my computer to the manufacturer settings. It took hours to complete this but I was happy that the memory on my computer was restored. Another problem came up around the end of November or the beginning of December 2012. My monitor started flickering. I thought there might be an issue with the battery so on December 20, 2012 I bought a new battery. Finally, my computer died at the end of December (2012). I then took it in to Best Buy to be looked at and they told me that it was probably the motherboard again. The Geek Squad Technician (inside Best Buy) explained to me that there is a switch on the motherboard that isn't normally replaced when replacing the motherboard. Apparently, the switch is removed off of the damaged motherboard and placed on the new motherboard. My point is, what if it wasn't just the motherboard that was bad, and what if it was the switch too. Then Dell did not fix the original problem. On January 29, 2013 I called Dell Support again to have the problem with my computer resolved and I was told by their representative that they would not do anything. They escalated the matter and one of the managers called me to confirm nothing would be done. I'm requesting to be compensated fully for the loss and damages that have occurred in the amount of $10,836.35. This amount covers the computer itself, tuition, books, and insurance. Respectfully, Leon E. Smith II 4 f d 7 1prr� 1�4- 6 1-77- V A-8 X66 3 a� V\A-,)b �Wo hO)O)S L V\A-nc)� Cn CD .J- Orr cz >" <;SQU �AY)of 1w p-��M SENDER: COMPLETE THIS SECTION + ■ Complete items 1,2,and 3.Also complete A. Sig t r item 4 If Restricted Delivery is desired. ❑Age ■ Print your name and address on the reverse X _ ___ ___ ❑Add so that we can return the card to you. B. v Y( Tinted Name) c�Dt o c rMeic�ni csburg Main Post Office ■ Attach this card to the back of the maitpiece, [ j MECHANICSBURG, Pennsylvania or on the front if space permits. -- 170559998 D. Is delivery d ress ci ferent from item 1? ❑Yes 4134870055 -0096 1. Article Addressed to: ,,,,,f...•' If YES,enter delivery address below: ❑No 04/29/2013 (800)275-8777 05:57:47 PM Sales Receipt Product Sale Unit Final ;22 Description Qty Price Price - /� - --_ ROUND ROCK TX 78664 $0.46 �r ,y � n ^� 1 3. S rvfceType Zone-6 First-Class , ` V tl'`V / Certified Mali ❑Express Mail Letter Registered [3 Return Receipt for March ❑ 0.60 oz. Insured Mail 13 C.O.D. - - Expected Delivery: Fri 05/03/13 4. Restricted Delivery?(Extra Fee) ❑Yes Return Rcpt (Green Card) $2.55 @@ Certified $3.10 2. Article Number 7012 3460 0002 2891 4069 Label #: 70123460000228914069 (Iisnsfer from service labeq Issue PVI: $6.11 PS Form 3811,February 2004 —Domestic Return Receipt 102595.0= MINNEAPOLIS MN 55423 $0.46 Zone-5 First-Class t .ER: COMPLETE THIS SECTION WW: Letter 0.60 oz. ■ Complete items 1,2,and 3.Also complete f A. Signature Expected Delivery: Fri 05/03/13 , item 4 if Restricted Delivery is desired. I X Return Rcpt (Green Card) $2.55 ■ Print your name and address on the reverse �y-- @@ Certified $3.10 ! so that we can return the card to you. B. Received by(Printed Name) C. Label #: 70123460000228914076 ■ Attach this card to the back of the maitpiece, or on the front If space permits. Issue PVI: $6.11 D. Is d ' ery address different from ft� 1. Article Addressed to: If S,enter�IIVe address below: Total : $12.22 ���� �u Paid by: $12.22 tli1,�1�,� Debit Card - - - - -- Account #: XXXXXXXXXXXX3387 = - -- - Approval #: 637624 3.ERegistered--rvice'Type 111 r. ,` ���� � Certified Mail ❑Express Mall Transaction #: 681' ��� ,23 903110112 ❑Return Receipt t Receipt#: . - 000737 ❑Insured Mail ❑C.O.D. l�@ For tracking or inquiries go to 4• Restricted Delivery?(Extra Fee) USPS.com or call 1-800-222-1811. 2. Article Number 7012 3460. 0002 2891 4076 xxxxxxxxxxxxxxxxxxxxxxxxxxxxrcxxxxxxxxxxx (rransfer from service labeq PS Form 3811,February 2004 Domestic Return Re:.elpt�� Y t Cumberland County Court 1 Courthouse Square Carlisle,PA 17013 Civil Complaint Leon Smith(Plaintiff) Dell Inc. (Defendant) Best Buy (Co-Defendant) 480 Stonehedge Lane 2300 Greenlawn Boulevard 7601 Penn Avenue Mechanicsburg,PA 17055 Round Rock, TX 78664 S. Minneapolis,MN 55423 H: (717) 620-8290 C: (617)699-0894 Docket Number: 13-2279 Civil Motion for Default Judgment As of today, Tuesday, July 16,2013,neither defendant has responded to my complaint. In addition,they were served over seventy days ago via certified mail. Therefore, I ask for a Default Judgment which I have laid out in my proposed order(see attached sheets). Thank you for your time, help, and cooperation in this matter. C)r 'I. -�1 Cr• t-f nr -- C_ N.) Respectfully, 4,051(\?.i Leon E. Smith II LEON SMITH, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA • v. : CIVIL ACTION—LAW • DELL, INC., and BEST BUY, : Defendants : NO. 13-2279 CIVIL TERM IN RE: PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT ORDER OF COURT AND NOW, this 4th day of October, 2013, upon consideration of Plaintiff's Motion for Default Judgment, it is hereby ordered and directed that the motion is DENIED. See Pa. R.C.P. 424. BY THE COURT, - 7414 Chris ee L. Peck, J. Leon Smith 480 Stonehedge Lane Mechanicsburg, PA Plaintiff,pro Se Dell, Inc. 2300 Greenlawn Blvd. Round Rock, TX 78664 Defendant rn� x~ est Buy 7601 Penn Avenue 4n S. Minneapolis, MN 55423 �Q - C, Defendant w ? :rc 0 ,� P Idf��13 r Cumberland County Court 1 Courthouse Square Carlisle,PA 17013 Civil Complaint Leon Smith(Plaintiff) Dell Inc. (Defendant) Best Buy (Co-Defendant) 480 Stonehedge Lane 2300 Greenlawn Boulevard 7601 Penn Avenue Mechanicsburg, PA 17055 Round Rock, TX 78664 S. Minneapolis,MN 55423 H: (717)620-8290 C: (617) 699-0894 Docket Number: 13-2279 Civil Petition for a Hearing As of today, Friday,November 8, 2013,neither defendant has responded to my complaint. They were served on October 15, 2013 by a process server(as you can see with the attached documents). Therefore, I petition for a hearing to resolve this matter as soon as possible. Thank you for your time, help,and cooperation in this matter. r-1 4 r.. W M rir a 1i.f1• ti y,• ceD < � S lT1 FC) G7 C W ---i VIA Nh Respectfully, [ If1 ) Leon E. Smith II Date: • , CAUSE NUMBER 13-2279 LEON SMITH § IN THE COUNTY COURT VS. § DELL,INC.AND BEST BUY § CUMBERLAND COUNTY,PENNSYLVANIA AFFIDAVIT OF DELIVERY Came to my hand on: 10/ 15/2013 at 12:00 o'clock P. M. CIVIL COMPLAINT Executed by me on: 10/ 15/2013 at 2:10 o'clock P. M. Executed at 211 EAST 7TH STREET,SUITE 620,AUSTIN,TEXAS,within the county of TRAVIS,by delivering to DELL,INC.by delivery to its registered agent,CORPORATION SERVICE COMPANY,by delivery to SUE VERTREES,in person,a true copy of the above-specified civil process with the date of delivery endorsed thereon. I am a person not less than eighteen(18)years of age,have never been convicted of a felony or a crime of moral turpitude, and no charge of a felony or a crime of moral turpitude is pending against me. I am not a party to or interested in the outcome of this case,am authorized by law,by the Supreme Court of Texas,or by written order of the Court to deliver citations and other notices,and am able to perform this service of process correctly pursuant to TRCP 103, 106, 107 and 536a. I swear that the statements and facts contained in this affidavit are true and correct and within my personal knowledge and experience. Service Fee: $ KEVIN BLANDFORD w SCH000000214(EXP.07/31/14) m m rfri KAB PROCESS, INC. cn r-- = rW+ P.O. BOX 937,AUSTIN,TEXAS 78767 -'<�' _ Po -4 (512)476-5707 o-� STATE OF TEXAS T� VERIFICATION - Before me,a Notary Public,on this day personally appeared KEVIN BLANDFORD,known to me to be the person whose name is subscribed to the foregoing document and,being by me first duly sworn,declared that the statements and facts therein contained are true and correct.Given under my hand and seal of office on this the Lt day of ,2013. ¢N _tgs Notary Publi ,State of Texas 26,12._CI15 • , AFFIDAVIT OF SERVICE STATE OF PENNSYLVANIA COUNTY OF CUMBERLAND Re: Pennsylvania Unfair Trade Practices and Consumer Protection Law 7 . Court File No.: 13-2279 STATE OF MINNESOTA ) )ss. COUNTY OF HENNEPIN ) James Basa, an agent of Platinum Courier,being duly sworn,depose and say that at 3:47 p.m. on the 15th day of October, 2013 I served the following: 1. Civil Complaint. Upon: Best buy(Co-Defendant) 7601 Penn Avenue S. Minneapolis, MN 55423 By handing to and leaving a copy with Todd Hartman, Vice President. A a cant: / AIL. 104 Signed and sworn to before me 1 thiP %Arnim-. .20 Mary P , �>>;✓Jhl tlt4'tf•s y T i VJ: fl• Ji•. \A \I, R V,'`,OI,J'\ `ANY 4 'YYV LEON SMITH, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION – LAW DELL, INC., and BEST BUY, Defendants : NO. 13-2279 CIVIL TERM IN RE: PLAINTIFF'S MOTION FOR A HEARING ORDER OF COURT AND NOW, this 7th day of July, 2014, upon consideration of Plaintiff's Motion for a Hearing, a Rule is hereby issued upon Defendant to show cause why the relief requested should not be granted. The Defendants are hereby ordered to include in their answer to the Rule To Show Cause why they have not yet filed an answer to the Complaint at issue. RULE RETURNABLE within 30 days of service. BY THE COURT, Zon Smith 480 Stonehedge Lane Mechanicsburg, PA 17055 Plaintiff, pro Se Zell, Inc. 2300 Greenlawn Blvd. Round Rock, TX 78664 Defendant .AEfst Buy 7601 Penn Avenue S. Minneapolis, MN 55423 Defendant — Lczu Christyiee L. Peck, J. D DUANE MORRIS LLP By: Anthony L. Gallia (PA ID No. 86029) By: James G. Welch (PA ID No. 312414) 30 South 17th Street Philadelphia, PA 19103-4196 Tel: (215) 979-1000 Fax: (215) 979-1020 ALGallia@duanemorris.com JGWelch@duanemorris.com LEON SMITH, Plaintiff vs. DELL, INC., and BEST BUY, Attorneys for Defendants Dell, Inc. and Best Buy Stores, L.P. CD G) 1 c3 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION — LAW NO. 13-2279 CIVIL TERM Defendants. : ENTRY OF APPEARANCE H -. in -4CD CD -71 C TO THE PROTHONOTARY: Kindly enter our appearance as attorneys for Defendants Dell Inc.' and Best Buy Stores, L.P.2 in the above -captioned matter. Papers may be served at the address set forth below. DUANE MORRIS LLP Dated: August 8, 2014 By: Ant o 'y L. Gala PA ID No. 8.1 • ) J es G. Welch (PA ID No. 312414) 30 South 17th Street Philadelphia, PA 19103-4196 Tel: (215) 979-1000 Fax: (215) 979-1020 ALGallia@duanemorris.com JGWelch@duanemorris.com Attorneys for Defendants Dell Inc. and Best Buy Stores, L.P. 1 Dell Inc. is incorrectly identified in the Complaint and case caption as "Dell, Inc." 2 Best Buy Stores, L.P. is incorrectly identified in the Complaint and case caption as "Best Buy." DMI\4950004.1 CERTIFICATE OF SERVICE This is to certify that in this case, assigned to the Honorable Christylee L. Peck, the foregoing Entry of Appearance has been served upon the following persons, by the following means, and on the date stated: Name: Means of Service: Date of Service: Leon Smith U.S. Mail August 8, 2014 480 Stonehenge Lane Mechanicsburg, PA 17055 Plaintiff, pro se Dated: August 8, 2014 B DM1\4950004.1 474i -ed ony L. Gallia (PA ID No. 86029) times G. Welch (PA ID No. 312414) DUANE MORRIS LLP 30 South 17th Street Philadelphia, PA 19103-4196 Tel: (215) 979-1000 Fax: (215) 979-1020 ALGallia@duanemorris.com JGWelch@duanemorris.com Attorneys for Defendants Dell Inc. and Best Buy Stores, L.P. DUANE MORRIS LLP By: Anthony L. Gallia (PA ID No. 86029) By: James G. Welch (PA ID No. 312414) 30 South 17th Street Philadelphia, PA 19103-4196 Tel: (215) 979-1000 Fax: (215) 979-1020 ALGallia@duanemorris.com JGWelch@duanemorris.com LEON SMITH, Plaintiff vs. DELL, INC., and BEST BUY, 0 Attorneys for Defendants Dell, Inc. and Best Buy Stores, L.P. . <: J -o c� • IN THE COURT OF COMMON PLEA L-• CUMBERLAND COUNTY, PENNSYLWJIA." . CIVIL ACTION — LAW NO. 13-2279 CIVIL TERM Defendants. : DEFENDANTS' RESPONSE TO RULE TO SHOW CAUSE Defendants Dell Inc.' ("Dell") and Best Buy Stores, L.P.2 ("Best Buy") (collectively, "Defendants"), by and through their undersigned attorneys, hereby respond to the Order and Rule to Show Cause entered by the Court on July 7, 2014, as follows: 1. An Order and Rule To Show Cause was issued by the Court on July 7, 2014 (the "Order"), for Defendants to show cause with regard to the motion of Plaintiff, Leon Smith ("Plaintiff'), for a hearing. See Dkt. No. 13-2279, Order of July 7, 2014, In Re: Plaintiffs Motion For A Hearing. 2 Dell Inc. is incorrectly identified in the Complaint and case caption as "Dell, Inc." Best Buy Stores, L.P. is incorrectly identified in the Complaint and case caption as "Best Buy." DM1\4946076.1 • 2. The Court's Order required Defendants to show cause why the relief requested by Plaintiff's Motion for a Hearing should not be granted, and to include in the response why Defendants have not yet filed an answer to the Complaint filed by Plaintiff Id. 3. Plaintiff requested relief in the form of a hearing because "neither defendant has responded to [his] complaint." See Dkt. No. 13-2279, Plaintiff's Motion3 for a Hearing filed November 12, 2013. 4. The reason Defendants did not answer or otherwise plead in response is because Defendants were not obligated to respond to Plaintiff's Complaint because it did not contain a "notice to defend" as required by Pennsylvania law. See Dkt. No. 13-2279, Plaintiff's Civil Complaint, filed Apr. 25, 2013. 5. Because Defendants were not obligated to respond to Plaintiff's Complaint, Plaintiff's request for relief in the form of a hearing should be denied. 6. Under Pennsylvania law, "every pleading subsequent to the complaint shall be filed within twenty days after service of the preceding pleading, but no pleading need be filed unless the preceding pleading contains a notice to defend or is endorsed with a notice to plead." Pa.R.C.P. 1026 (emphasis added); see also Pa.R.C.P. 1018.1(a) ("Every complaint filed by a plaintiff and every complaint filed by a defendant against an additional defendant shall begin with a notice to defend in substantially the form set forth in [Rule 1018.1] subdivision (b)."); Pa.R.C.P. 1361 ("Note: A responsive pleading is not required to be filed unless a notice to plead has been endorsed on the prior pleading other than a complaint. The notice to defend prescribed by Rule 1018.1 shall appear on all complaints."). 3 Plaintiff's Motion for a Hearing was styled as a Petition for a Hearing. However, Defendants use the term Motion for a Hearing to be consistent with the Court's Order. DM1\4946076.1 2 7. This rule has been specifically addressed by the Pennsylvania Superior Court. If a complaint does not include a notice to defend, a defendant has no obligation to file a responsive pleading. Mother's Rest., Inc. v. Krystkiewicz, 861 A.2d 327, 338 (Pa. Super. 2004) (overturning denial of defendant's petition for relief from default judgment because plaintiff's amended complaint did not contain a notice to defend). "Every complaint, including amended complaints, must include Notice to Defend ... [and defendant] had no obligation to file a responsive pleading since the preceding pleading ... did not contain a notice to defend." Id. 8. In this case, Plaintiff s Complaint did not include either a notice to defend or a notice to plead. See Dkt. No. 13-2279, Plaintiff's Civil Complaint, filed April 25, 2013. 9. Because Plaintiff's Complaint was legally defective in that it did not a include a notice to defend or notice to plead, Defendants were not obligated to—and did not—file a responsive pleading. 10. As the issues raised in Plaintiffs Motion for a Hearing are purely issues of law based solely on the submissions of the parties, this matter can and should be decided without an evidentiary hearing. 11. Accordingly, Plaintiff's Motion for a Hearing should be denied. WHEREFORE, for the reasons set forth above, Defendants respectfully request that Plaintiff's Motion for a Hearing be denied. Dated: August 8, 2014 3 DM 1 \4946076.1 Respectfully Submitted, DUANE MORRIS LLP By: ony . Gallia, Esquire ames G. Welch, Esquire Attorneys for Defendants Dell Inc. and Best Buy Stores, L.P. y � L CERTIFICATE OF SERVICE This is to certify that in this case, assigned to the Honorable Christylee L. Peck, the foregoing Defendants' Response to Rule to Show Cause, along with all related papers, have been served upon the following persons, by the following means, and on the date stated: Name: Leon Smith 480 Stonehenge Lane Mechanicsburg, PA 17055 Plaintiff, pro se Means of Service: Date of Service: U.S. Mail August 8, 2014 Dated: August 8, 2014 By: DM1\4946076.1 A' ' Y (PA86029) James G. Welch (PA ID No. 312414) DUANE MORRIS LLP 30 South 17th Street Philadelphia, PA 19103-4196 Tel: (215) 979-1000 Fax: (215) 979-1020 ALGallia@duanemorris.com JGWelch@duanemorris.com n L. allia ID No. Attorneys for Defendants Dell Inc. and Best Buy Stores, L.P. LEON SMITH, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION — LAW DELL, INC., and BEST BUY, : Defendants : NO. 13-2279 CIVIL TERM IN RE: PLAINTIFF'S MOTION FOR A HEARING ORDER OF COURT AND NOW, this 13th day of August, 2014, upon consideration of Plaintiff's Motion for a Hearing, and Defendants' Response to the Rule To Show Cause, it is hereby ordered that Plaintiff's Motion for a Hearing is denied. Plaintiffs complaint is hereby dismissed, for failure to include a notice to defend, without prejudice for Plaintiff to refile the Complaint, in accordance with the Pennsylvania Rules of Civil Procedure, within 20 days of the date of this Order. Aeon Smith 480 Stonehedge Lane Mechanicsburg, PA 17055 Plaintiff, pro Se 4 Anthony L. Gallia, Esq. James G. Welch, Esq. 30 South 17th Street Philadelphia, PA 19103-4196 Attorneys for Defendants :rc BY THE COURT, Christylei L. Peck, J. nIC w