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HomeMy WebLinkAbout13-7319 Supreme Court of Pennsylvania Court of Common Pleas For Prothonotary Use Only: Civil Cover Sheet Docket No: Cumberland County The information collected on this form is used solely for court administration purposes. This form does not supplement or replace the Wing and service of leadin s or other papers as required by law or rules of court. Commencement of Action: ® Complaint ❑ Writ of Summons ❑ Petition S El Transfer from Another Jurisdiction E] Declaration of Taking E Lead Plaintiff's Name: Lead Defendant's Name: DAVID WECKERLY C PORTFOLIO RECOVERY ASSOCIATES LLC Are money damages requested? X �s N❑ Dollar Amount Requested: ® within arbitration limits 0 (Check one) ❑ outside arbitration limits N Is this a Class Action Suit? El Yes ® No Is this an MDJ Appeal? YQ X N❑ A Name of Plaintiff /Appellant's Attorney: Morris Scott /SVretta Martin ❑ 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 ❑ $uyer Plaintiff Administrative Agencies ❑ Malicious Prosecution JZ Debt Collection: Credit Card B[alyd of Assessment ❑ Motor Vehicle ❑ Debt Collection: Other B®rd of Elections ❑ Nuisance Dpt. of Transportation S ❑ Premises Liability S amt rtory Appeal: Other E ❑ Product Liability (does not include mass tort) El Employment Dispute: C ❑ Slander /Libel /Defamation Discrimination T ❑ Other: ❑ Employment Dispute: Other Zing Board I OEbr: 0 N El Other: MASS TORT ❑ Asbestos ❑ Tobacco B ❑ Toxic Tort - DES ❑ Toxic Tort - Implant REAL, PROPERTY MISCELLANEOUS ❑ Toxic Waste ❑ Ejectment ❑ Common Law /Statutory Arbitration ❑ Other: ❑ Eminent Domain /Condemnation DBaratory Judgment ❑ Ground Rent ❑ Mandamus ❑ Landlord/Tenant Dispute ❑ Non - Domestic Relations ❑ Mortgage Foreclosure: Residential Restraining Order PROFESSIONAL LIABILITY ❑ Mortgage Foreclosure: Commercial ❑ Quo Warranto ❑ Dental ❑ Partion ❑ Replevin ❑ Legal ❑ Quiet Title ❑ Other: ❑ Medical ❑ Other: ❑ Other Professional: Updated 1 2805154 PPTXSCPI Blatt, Hasenmiller, Leibsker & Moore, LLC Attorney for Plaintiff, Morris Scott Attorney I.D. #83587 PORTFOLIO RECOVERY ASSOCIATES LLC Syretta Martin Attorney I.D. #309370 1835 Market Street, Suite 501 Philadelphia, PA 19103 800 - 850 -1079 PORTFOLIO RECOVERY ASSOCIATES LLC c/o Blatt, Hasenmiller, Leibsker & Moore, LLC IN THE COURT OF COMMON PLEAS 1835 Market Street, Suite 501 Philadelphia, PA 19103 CUMBERLAND COUNTY, PA Plaintiff, CIVIL ACTION vs. No. DAVID WECKERLY 507 HALDEMAN BLVD �' r a j -- 0 NEW CUMBERLAND PA 17070 �� 0 y; Defendant. t NOTICE TO DEFEND 4 d` 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. LAWYER REFERRAL SERVICE 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 a � 2805154 24 t9a '9 6 3 PPTCPADI AVISO Le han demandado a usted en la corte. Si usted quiere defen derse de estas demandas expuestas en las paginas siguientes, usted tiene veinte dias de p►azo al partir de la fecha de la demanda y la notificacion. Hase falta ascentar una comparencia escrita o en persona o con un aboga do y entregar a la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisa do que si usted no se de fiende la corte tomara medidas y puede continuar la demanda en contra suva sin previo aviso o notificacion. Ademas, la corte puede decidir a favor del demandante y requiere que usted cumpla con todas las provisioner de esta demanda. Usted puede perder dinero o sus propieda des u otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE, SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. SERVICIO DE REFERENC ►A LEGAL 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 (717) 267 -2032 Blatt, Hasenmiller, Leibsker & Moore, LLC Attorney for Plaintiff, Morris Scott Attorney I.D. #83587 Syretta Martin Attorney I.D. #309370 1835 Market Street, Suite 501 Philadelphia, PA 19103 800 - 850 -1079 PORTFOLIO RECOVERY ASSOCIATES LLC c/o Blatt, Hasenmiller, Leibsker & Moore, LLC IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiff, CIVIL ACTION vs. No. DAVID WECKERLY 507 HALDEMAN BLVD NEW CUMBERLAND PA 17070 Defendant(s). COMPLAINT Plaintiff PORTFOLIO RECOVERY ASSOCIATES LLC, claims as follows: 1 . The Defendant(s), DAVID WECKERLY , is a resident of Cumberland County, Pennsylvania. 2. The Defendant(s) obtained extensions of credit with CITIBANK,N.A. SEARS, (Original Credit Grantor) agreeing to make monthly payments as required by the terms of the account, for purchases charged to the account. 3. The Defendant(s) did make purchases and charged same to the account but failed to make the monthly payments called for on the account. There is a balance due and owing of $2389.77. 4. Plaintiff is the successor in interest of said account having purchased the account in the regular course of business in good faith and value. 5. Plaintiff declared Defendant(s) to be in default and demands payment of the balance. 2805154 PPTCDBCI WHEREFORE, the Plaintiff, PORTFOLIO RECOVERY ASSOCIATES LLC, prays for judgment in its favor and against Defendant(s), DAVID WECKERLY in the amount of $2389.77, plus costs. Respectfully submitted, PORTFOLIO RECOVERY ASSOCIATES LLC On o its Att ys Morris cott Attorney I.D. #83587 Syretta Martin Attorney I.D. #309370 Blatt, Hasenmiller, Leibsker & Moore, LLC 1835 Market Street, Suite 501 Philadelphia, PA 19103 (800) 850 -1079 Dated: October 29, 2013 Blatt, Hasenmiller, Leibsker & Moore, LLC Attorney for Plaintiff, Morris Scott Attorney I.D. #83587 PORTFOLIO RECOVERY ASSOCIATES LLC Syretta Martin Attorney I.D. #309370 1835 Market Street, Suite 501 Philadelphia, PA 19103 800 - 850 -1079 PORTFOLIO RECOVERY ASSOCIATES LLC c/o Blatt, Hasenmiller, Leibsker & Moore, LLC IN THE COURT OF COMMON PLEAS 1835 Market Street, Suite 501 Philadelphia, PA 19103 CUMBERLAND COUNTY, PA Plaintiff, CIVIL ACTION vs. No. DAVID WECKERLY 507 HALDEMAN BLVD NEW CUMBERLAND PA 17070 Defendant(s). AFFIDAVIT OF NON - MILITARY SERVICE COMMONWEALTH OF PENNSYLVANIA: County of Cumberland: I, Morris Scott /Syretta Martin, being duly sworn according to law, depose and say I am the attorney for Plaintiff and I am authorized to make this affidavit on Plaintiff's behalf. I hereby certify that the Defendant(s) is at least 18 years of age and not in the Military Service of the United States, nor any State or Territory thereof or its allies as defined in the Servicemembers' Civil Relief Act of 2004 and any amendments thereto. See Defendant(s) Military Status Report pursuant to 50 U.S.C. App. Section 521, 525 which was obtained from the Department of Defense Manpower Data Center ( https: / /www.dmdc.osd.mil /appj /scra /). I also herby certify that the statements made in the foregoing Affidavit of Non - Military Service are true and correct to the best of my information, knowledge, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. Section 4904 relating to unsworn falsification to authorities. BLATT, HASENMILLER, LEIBSKER & MOORE C Dated: October 29, 2013 By: Morns Cott Syretta Martin 2805154 PPTJCAMI (06/28/2013) ` I IIIIIII VIII IIIIII IIII III IIIIII VIII VIII VIII IIII' VIII VIII IIII I II II IIII Verification 1 Cynthia Clarke , am an authorized agent and /or employee of Plaintiff. I am authorized to make this verification on behalf of Plaintiff. The statements of facts set forth in the complaint are true and correct based upon my information and belief and are made subject to the penalities of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. 0, AA� S� C CO Q CE C 4; 6 2013 Signature Cynthia Clark Custodian of Records 2805154 PPTXVR1 I 11111 1111111 III 111111 I1I1I 1111111111 VIII 11111111111111111 IN Exhibit "A" PPTXEXAI Account Statement Send Notice of Billing Errors and Customer Service Inquiries to: Customer Service: SEARS CREDIT CARDS searseard.com PO Box 6283, Sioux Falls, SD 57117 -6283 sears Sears Card © Account Inquiries: AecciiintNuriibec X747 1 -800- 917 -7700 Summary of Account Activity Payment Information Previous Balance $2,304.73 New Balance $2 Payments -$0,00 Minimum Payment Due $757.99 Other Credits -$0.00 Payment Due Date January 4, 2012 Purchases 0.00 Cash Advances +$0.00 Late Payment Warning: 11 we do not receive your minimum payment by the Fees Charged +$35.00 date listed above, you may have to pay a late fee up to $35. Interest Charged +$50.04 Minimum Payment Warning: If you make only the minimum payment each New Balance $2,389.77 period, you will pay more In interest and it will take you longer to pay off your balance. For example: Past Due Amount 648.95 -1f QEI~Waii':ri'00 tiar7ati ;; ; �iu;wilt p y sff.;#ha; r; Apd youv✓llt Y cfiarges using tF is barlf .; baiarice shot' on this l' efidtip pa . an1� each month you pay sta tePhtiht in ibolxt t3stlrttated total Qf,: Credit Limit 0.00 Only the minimum payment 10 years $4,695 '` Available Credit 0.00 $95 3 years i (savings Amount Over Credit Limit 459.77 _�_ _ ____ _. 8 188. 3) Statement Closing Date 12/08/2011 it you would like information about credit counseling services, cats 1- 877 -337 -8188. Next Statement Closing Date 01/08/2012 Days in Billing Cycle 31 Your account is seriously past due. Amount past due is shown above. Arrangements for future payments should be made immediately. TRANSACTIONS Trans Date Description Reference Amount FEES 12/04 LATE FEE $ 35,00 TOTAL FEES FOR THIS PERIOD $ 35.00 rNTEREST CHARGED 12!08 INTEREST CHARGE ON PURCHASES $ 50.04 TOTAL INTEREST FOR THIS PERIOD $ 50.04 8SE3 NOTICE: SEE REVERSE SIDE FOR IMPORTANT INFORMATION Page 1 of 4 This Account is Issued by Citibank, N.A. ------------------ - - - - -- ------------------------------------------------------------------------------------ + Please detach this portion and return with your payment to insure proper credit Retain upper portion for your records. + Sea Card Make Checks Payable to: SEARS CREDIT CARDS t Past Due Amount is included in the Minimum Payment Due, 1`AiiY:Acgurtt Nymtiet . Payment Due Date New Balance P Minimum Payment Due Am ast Due Amountt ount Enclosed 37 #Y= JANUARY 4, 2012 $2,389.77 $648.95 $757.99 $ SAVE STAMPS TIME... AND TREES! V'sit A ccount Online and registe natfr for Online BIN ?'ay, , Paperless Statements anci More. 3747 SEARS CREDIT CARDS PO BOX 183081 DAVID WECKERLY COLUMBUS, OH 43218 -3081 507 HALDEMAN BLVD NEW CUMBERLAND, PA 17070 -1235 Print address changes above in blue or black ink. Information About Your Account. What Will Happen After We Receive Your Letter How to Avoid Paying Interest on Purchases. Your payment due date is at least When we receive your letter, we must do Im, things. 25 days after the close of each billing cycle. We will not charge you any interest on 1. Within 30 days of receiving your letter; we must fell you that we received purchases if you pay your New Balance by the payment due date each month. This your letter. 'Ale will also tell you if we have already corrected the error. is called a grace period on purchases. If you do not pay the New Balance in full by 2. Within 90 days of receiving your letter, we must either correct the error or the payment due date, you will not get a grace period on purchases until you pay explain to you why we believe the bill is correct. the New Balance in full for two billing cycles in a row. We will begin charging interest on cash advances and balance transfers (if available on your account) on While we investigate whether or riot there has been an error: the transaction date. We cannot try to collect the amount in question, or report you as delinquent on If you have a balance subject to a deferred interest promotion and that promotion that amount. does not expire before the payment due date, that balance (tile "excluded The charge in question may remain on your statement, and we may promotional balance ") is excluded from the amount you must pay in full to get a continue to charge you interest on that amount. grace period. However, you must still pay any separately required payment on the While you do not have to pay the amount in question, you are responsible excluded promotion. In billing cycles in which payments are allocated to deferred for the remainder of your balance. interest balances first, the deferred interest balance will be reduced before any We can apply any unpaid amount against your credit limit, other balance on the account. However. you will continue to get a grace period on After we finish our investigation, one of two things will happen: purchases so long as you pay the New Balance less any excluded promotional balances in full by the payment due date each billing cycle. If we made a mistake: You will not have to pay the amount in question or any interest or other fees related to that amount. In addition, certain promotional offers may take away the grace period on if we do not believe there was a mistake: You will have to pay the amount purchases. Other promotional offers not described above may also allow you to in question, along with applicable interest and fees. We will send you a have a grace period on purchases without having to pay all or a portion of the statement of the amount you owe and the date payment is due. We may then promotional balance by the payment due date. If either is the case, the report you as delinquent if you do riot pay the amount we think you owe_ promotional offer will describe what happens. How We Calculate Your Balance Su If you receive our explanation but still believe your bill is wrong, you must write to Subject to Interest Rate. We use a daily us within Ill days telling us that you still refuse to pay. It you do so, we cannot balance method (including current transactions) to calculate interest charges. To report you as delinquent without also reporting that you are questioning your bill. find out more information about the balance computation method and how the We must tell you the name of anyone to whom we reported you as delinquent, and resulting interest charges were determined, contact us at the Account Inquiries number on the front. we must let those organizations know when the matter has been settled between us. Balance Transfers. Balance transfer amounts are included in the 'Purchases" line If we do not follow all of the rules above, you do not have to pay the first $50 of in the Summary of Account Activity (if balance transfers are available on your accoun ). the amount you question even if your bill is correct. t Transaction Date. The Transaction Date shown on the statement is also the Sale Your Rights It You Are Dissatisfied With Your Credit Card Purchases Date. If you are dissatisfied with the goods or services that you have purchased with Credit Reporting Disputes. If you think we reported inaccurate information to a your credit card, and you have tried in good faith to correct the problem with the credit bureau write us at the Customer Service address shown on the Front. merchant, you may have the right riot to pay the remaining amount due un the Report a Lost or Stolen Card Immediately. Call the Account Inquiries number purchase. shown on the front. To use this right, all of the following must be true: What Tb Do If You Find A Mistake On Your Statement 1. The purchase must have been made in your home state or within 100 miles cf your current mailing address, and the purchase price must have If you think there is an error on your statement, write to us at the address for been more than $50. (Note: Neither of these are necessary if your billing inquiries and correspondence shown on the front of your statement. purchase was based on an advertisement we mailed to you, or if we own In your letter, give us the following information: the company that sold you the goods or services.) • Account Information: Your name and account number. 2. You must have used your credit card for (tie purchase. Purchases made with cash advances from an ATM or with a check that accesses your credit card Dodar amount: The dollar aniount of the suspected erroc account do not qualify. Description of problem: If you think there is an error on your bill, 3. You must not yet have fully paid for the purchase. describe what you believe is wrong and why you believe it is a mistake. 2 You must contact us: If all o� the criteria above are met and you are still dissatisfied with the purchase, contact us in writing at the address for billing inquiries and correspondence shown Within 60 days after the error appeared on your statement. on the front of your statement. • At leas[ 3 business days before an automated payment is scheduled, if you want While we investigate, the same rules apply to the disputed amount as discussed to stop payment on the amount you think is wrong. above. After we finish our investigation, we will tell you our decision. At that point, You must notify us of any potential errors in wriiing. You may call us, but if you do if we think you owe an amount and you do not pay, we may report you as delinquent. we are not required to investigate any potential errors and you may have to pay the amount in question. EM SMGTGI l2i'll T01679 -9351- 5000 -0090- 9- E -39 -X- -09;01182- 01-- P- e -0 - -7. 402- 0 -0 ---- 09 /01;11 -PKKB- November 7.2011-0-V N... Important Payment Instructions. Payment Options Other Than Regular Mail. Right to Prepay Your Account. You may pay all or part of your account balance In -Store Payments (Where Available). Any payment in proper form at any time. However, you must pay, by the payment due date, at least the accepted in -store will be credited as of that day. However; credit minimum payment due. availability may be subject to verification of funds. Not all stores accept Crediting Payments. If we receive your payment in proper form at our processing payments. Contact your local store to see if in -store payments are facility by 5 p.m. local time there, it will be credited as of that day. A payment accepted at that location. received there in proper form after that time will be credited as of the next day. Online Payments. Visit the web address on the front and sign up for Allow 5 to 7 days for payments by regular mail to reach us. There may be a delay online payments. Enrollment may take a few days. If we receive your of up to 5 days in crediting a payment we receive that is not in proper form or is request to make an online payment by 5 p.m. Eastern time, we will credit not sent to the correct address. The correct address for regular mail is the address your payment as of that day. If we receive your request to make an online on the front of the payment coupon. The correct address for courier or express payment after that time, we will credit your payment as of the next day. mail is the Express Payments Address shown below, For security reasons, you may be unable to pay your entire New Balance with your first online payment. Proper Form. For a payment sent by mail or courier to be in proper form, you must: Pay by Phone Service. You may use this service any time to make a Enclose a valid check or money order. No cash, gift cards, or foreign payment by phone. You will be charged $1 -1.95 if a representative of ours currency p lease. helps expedite your payment. Call by 5 p.m. Eastern time to have your a Include your name and account number on the front o f your check or money payment credited as of that day. If you call after that time, your payment ender, will be credited as of the next day. We may process your payment If you send an eligible check with this payment coupon, you authorize us to electronically after we verify your identity. complete your payment by electronic debit. If we do, the checking account will Express Payments. You can send payment by courier or express mail to be debited in the amount on the check. We may do this as soon as the day we the Express Payments Address. This address is: Payments Department, receive the check. Also, the check will be destroyed. 1500 Boltonfield Street, Columbus, OH 43228. Payment must be received in proper form at the proper address by 5 p.m. Eastern time to be cr edited Copy Fee. Vie charge $3 for each copy of a billing statement that dates back 3 as of that day. All payments received in proper form at the proper address months or more. We add the fee to the regular purchase balance. We waive the fee after that tirne will be credited as of the next day. if your request for the copy relates to a billing error or disputed purchase. Page 2 of 4 Account: 3747 -2Q'F1 Totals Year�to —Date Total Fees Charged in 2011 $235.00 Total Interest Charged in 2011 $596.44 INTEREST CHARGE CALCULATION Your Annual Percentage Rate (APR) is the annual interest rate on your account. Type tSf;RalerSCe' r `; ; AAr1y8t Pct Bht�g .Rath (APR) ".�ublgct;fo int ri ti a#te ; interest Ohitrge PURCHASES REGULAR 25.24% (MV) $2334.44 $50.04 Variable Rate (D) Dai Page 3 of 4 Account: * * ** * * ** * * ** 3747 Page 4of4 Blatt, Hasenmiller, Leibsker & Moore, LLC Attorney for Plaintiff, Morris Scott Attorney I.D. #83587 PORTFOLIO RECOVERY ASSOCIATES LLC Syretta Martin Attorney I.D. #309370 1835 Market Street, Suite 501 Philadelphia, PA 19103 215- 564 -1567 PORTFOLIO RECOVERY ASSOCIATES LLC c/o Blatt, Hasenmiller, Leibsker & Moore, LLC IN THE COURT OF COMMON PLEAS 1835 Market Street, Suite 501 Philadelphia, PA 19103 CUMBERLAND COUNTY, PA Plaintiff, CIVIL ACTION vs. 0� U `= No. ' I DAVID WECKERLY 507 HALDEMAN BLVD NEW CUMBERLAND PA 17070 �' Defendant(s). Z G PRAECIPE TO ENTER APPEARANCE NtJ" TO THE PROTHONOTARY: Kindly ENTER my appearance in the above - captioned matter on behalf of PLAINTIFF PORTFOLIO RECOVERY ASSOCIATES LLC. Papers may be served at the address set forth below: Blatt, Hasenmiller, Leibsker & Moore, LLC 1835 Market Street, Suite 501 Philadelphia, PA 19103 Telephone Number: 1 -215- 564 -1567 BLATT, HASENMILLER, LEIBSKER & MOORE, LLC Dated: October 29, 2013 By: Morris Scott Attorney Syretta Martin Attorney 2805154 PPTXPEAI IIIIIIIIIIIIIIIIIIIIII SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff x' ; eta et c o mpty.. Jody S Smith ,o RN+7 '" ', Chief Deputy !3? 1 r�• Richard W Stewart Solicitor .. .:_ PENNSYLVANIA, Portfolio Recovery Associates, LLC Case Number vs. David P. Weckerly 2013-7319 SHERIFF'S RETURN OF SERVICE 12/26/2013 06:56 PM - Deputy Dennis Fry, being duly sworn according to law, served the requested Complaint& Notice by"personally" handing a true copy to a person representing themselves to be the Defendant, to wit: David P. Weckerly at 507 Haldeman Boulevard, New Cumberland Borough, New Cumberland, PA 17070. DEN FRY, D P "WM° SHERIFF COST: $47.21 SO ANSWERS, December 27, 2013 RONNYR ANDERSON, SHERIFF IL ED—UFFICE Michael J. Pykosh, Esquire (J THE PROTHONOTARY ID#58851 Dethlefs-Pykosh Law Group, LLC t01�r JAN 31 Phi 2: .33 2132 Market Street Camp Hill, Pennsylvania 17011 C1�M: ERLATdD COUNTY —(717)975-9446 Fax—(717)975-2309 PENNSYLVANIA mpvkosh(c�dplalaw,com Attorney for Defendant PORTFOLIO RECOVERY : COURT OF COMMON PLEAS ASSOCIATES, LLC, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff • v. No: 13-7319 — Civil Term DAVID WECKERLY, Defendant NOTICE TO PLEAD To: Portfolio Recovery Associates, LLC do Morris Scott, Esquire Syretta Martin, Esquire Blatt, Hasenmiller, Leibsker & Moore, LLC 1835 Market Street, Suite 501 Philadelphia, PA 19103 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. Respectfully Submi d, Date: 1-"31 ` 1 //,///(i Michael J. Py osh, Esquire I.D. # 58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 (717) 975-9446 Attorney for Defendant Michael J. Pykosh, Esquire '` ` 'lI 1'j=ic ID#58851 p f jtio TAR r Dethlefs-Pykosh Law Group, LLC 2°4y JAN ; 2132 Market Street 3 Camp Hill, Pennsylvania 17011 :Uj-4 2. 3 Fa Telephone(717) (717) 23095 9446 PEW D eats mpvkosh(a�dplglaw,com 4N*ornery for Defendant PORTFOLIO RECOVERY : COURT OF COMMON PLEAS ASSOCIATES, LLC, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff • v. • No: 13-7319 — Civil Term • DAVID WECKERLY, • Defendant DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes the Defendant, David Weckerly, by and through his Attorneys, Dethlefs-Pykosh Law Group, LLC, by Michael J. Pykosh, Esquire, who files his Preliminary Objections to the Plaintiffs Complaint, and avers as follows: 1. Plaintiff filed suit against Defendant alleging that Defendant owes money to Plaintiff arising out of an account issued by CITIBANK, N.A. SEARS. Comp. ¶ 2. 2. The Complaint was filed on December 12, 2013. First Preliminary Objection - Pa. R.C.P. 1028(a)(2) Failure to Conform to Law or Rule of Court 3. 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. 4. Plaintiff's Complaint is based upon a contract. 5. Plaintiff asserts a cause of action based upon an account stated theory of recovery. 6. 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. Corn. PI. Centre County 2009). JMMM PC Company v Patricia Stillwagon 2011 Pa. D&C Dec. Lexis 24 (Luzerne County). 7. Plaintiff in pleading account stated cause of action is not permitted to escape pleading requirements otherwise applicable. CitiBank (South Dakota, N.A.) vXenofon SkaboUlos, No. 09-8676 (Cumberland County) and CitiBank (South Dakota), N.A. v Ross, 2010-5668 (Cumberland County, 2010) (Masland J). Second Preliminary Objection - Pa. R.C.P. No. 1028(a)(2) Failure to Conform to Law or Rule of Court 8. Plaintiff is not the original creditor, but rather assignee of the original creditor. Comp. 112. Since the Plaintiff's right to maintain an action as an assignee is predicted upon written assignment or agency agreement, that writing must be attached to the Complaint, pursuant to Pa. R.C.P. 1019(i). 9. By failing to attach a complete copy of the assignment and bill of sale of the debt to the Plaintiff, the Complaint does not comply with an express rule of court, in violation of Pa. R.G.P. 1028(a)(2). Remit Corporation v Miller 5 Pa. D&C 5th 43 and Capital One Bank v. Clevenstine, 7 Pa. D&C 5th 153. Third Preliminary Objection- Pa. R.C.P. 1028(a)(2) Failure to Conform to Law or Rule of Court 10.The Complaint avers the existence of some type of contract pertaining to a credit card between the parties. 11.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. 12.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, including both original and amended terms and conditions applicable to the credit card agreement. Asset Acceptance, LLC v Margaret Madden 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). Plaintiff has failed to explain the absence of the written agreement and has failed to set forth the substance of the agreement. Fourth Preliminary Objection - Pa. R.C.P. No. 1028(a)(3) Insufficient Specificity in a Pleading 13.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. 14.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. 15.By not including the requisite detail of the account, the Complaint fails to conform to an express rule of Court. Fifth Preliminary Objection - Pa. R.C.P. 1028(a)(5) Lack of Capacity to Sue 16.Pa. R.C.P. 2002(a) required that an action be brought by the real party in interest. 17.By failing to attach a copy of the necessary writing by which the Plaintiff would become the assignee of the account and thus the real party in interest or an agency agreement, the Plaintiff has failed to conform with the requirements of the aforesaid rule. 18.Plaintiff has not shown standing or capacity to sue Defendant. 19.Since this matter was not brought by the real party in interest it must be dismissed. WHEREFORE, the Defendant respectfully requests that his Preliminary Objections be sustained, and that Plaintiff's Complaint be dismissed with prejudice. Respec II Su^miffed, Date: I -31-4y Michael J. ' kosh, Esquire I.D. # 58851 Dethlefs-Pykosh Law Group, LLC 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 mpykosh(c�dplglaw,com Attorney for Defendant PORTFOLIO RECOVERY : COURT OF COMMON PLEAS ASSOCIATES, LLC, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. No: 13-7319 — Civil Term DAVID WECKERLY, • Defendant • CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Defendant'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: Portfolio Recovery Associates, LLC do Morris Scott, Esquire Syretta Martin, Esquire Blatt, Hasenmiller, Leibsker & Moore, LLC 1835 Market Street, Suite 501 Philadelphia, PA 19103 Respectfully Submitted, Date: 1 _ g l q _ Michael J. Pykosh, Esquire I.D. # 58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 (717) 975-9446 Attorney for Defendant