HomeMy WebLinkAbout05-13272012442
THIS IS AN ARBITRATION MATTER.
ASSESSMENT OF DAMAGES HEARING REQUIRED.
GORDON & WEINBERG, P.C.
BY: FREDERIC I. WEINBERG, ESQUIRE
Identification No.: 41360
PAUL M. SCHOFIELD, JR., ESQUIRE
Identification No.: 81894
21 SOUTH 21ST STREET
PHILADELPHIA, PA 19103
215/988-9600
UNIFUND CCR PARTNERS ASSIGNEE
OF CITIBANK UNIVERSAL CARD
SVGS
10625 Techwoods Circle
Cincinnati, OH 45242
VS.
PATRICIA A DUBS
277 SAMPLE BRIDGE RD
MECHANICSBURG PA 17050
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
DOCKET NO
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
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 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 in the amount
of $11,733.38.
5. Plaintiff has made demand upon the defendant(s)for
payment of the balance due of $11,733.38 but the defendant(s)has
failed and refused and still refuses to pay the same or any part
thereof.
WHEREF0:2E, plaintiff claims of the defendant(s) the sum of
$11,733.38 at the rate of 23.9% from the date of September 2,
2002, together with costs and attorney fees.
GORDON & WEINBERG, P.C.
l?
BY: r
FREDERIC I. WEI ERG, ESQUIRE
PAUL M. SCHOFIELD, JR., ESQUIRE
Attorney for Plaintiff
P01h
FREDERIC I. WEINBERG, ESQUIRE, hereby states that he is the
attorney for the Plaintiff(s) in this action and verifies that
the statements made in the foregoing pleading are true and
correct to the best of his knowledge, information and belief.
The undersigned understands that the statements herein are
made subject to the penalties of 18 Pa.C.S.A. Section 4904
relating to unsworn falsification to authorities.
J
FREDERIC I. WEINBIRG, ESQUIRE
EXHIBIT "A"
AFFIDAVIT OF INDEBTEDNESS
State of Ohio )
County of Hamilton ) ss.
Jessica Bergholz being sworn, deposes and says that she is Media Supervisor of Unifund CCR Partners
herein called assignee, which is doing business at 10625 Techwoods Circle, Cincinnati, Ohio 45242 and that
she is authorized to make the statements and representations herein.
The defendant is not in any branch of the military.
There is due and payable from Patricia A Dubs, Account Number 5396809002025646, the amount of
$21500.58 (principal balance in the amount of $11733.38 plus interest up through 07/27/2004 in the
amount of $9767.20). By the terms of the agreement between the defendant and the original creditor,
interest is accruing from the aforesaid date at the rate of 23.90 percent per annum. This balance reflects any
payments, credits or offsets made since the account was charged off.
This account was originated with Citibank Universal Card Svcs. Unifund CCR Partners purchased this
account from Citibank Universal Card Svcs. Said account has been assigned, transferred and set over unto,
Gordon & Weinberg P.C. with full power and authority to do and perform all acts necessary for the
collection, settlement, adjustment, compromise or satisfaction of said claim, on behalf of Umfund CCR
Partners.
DATED this July 27, 2004
UNI? PARTNERS
By: Jessica Bergholz
Media Supervisor
10625 Techwoods Circle Cincinnati, OH 45242
Address
Subscribed and sworn to before me pliis 27 day of Jam, 2004
Year
My commission Expires
Client # 829
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UNIFUND CCR PARTNERS ASSIGNEE IN THE COURT OF COMMO N PLEAS
OF CITIBANK UNIVERSAL CARD SVS CUMBERLAND COUNTY, ENNSYLVANIA
10625 Techwoods Circle
Cincinnati, OH 45242
Plaintiffs
vs. NO. 2005 1327 Civil Term
PATRICIA A. DUBS
277 Sample Bridge Road
Mechanicsburg, PA 17050
Defendants CIVIL ACTION - LAW
NOTICE TO PLEAD
TO: Unifund CCR Partners Assignee
Of Citibank Universal Card Services
c/o Frederic I. Weinberg, Esquire
Paul M. Schofield, Jr., Esquire
21 South 21" Street
Philadelphia, PA 19103
You are hereby notified to plead to the within Prelimi ry Objections and
any alleged facts therein within twenty (20) days after date of se Lice hereof.
Respectfully submitted,
BY: C ti
Arthur K. Di
1017 North I
Harrisburg, 1
(717) 232-9-)
I.D. No. 070
s, Esquire
rout Street
A 17102
Date: March 31, 2005
UNIFUND CCR PARTNERS ASSIGNEE IN THE COURT OF COMM(
OF CITIBANK UNIVERSAL CARD SVS CUMBERLAND COUNTY,]
10625 Techwoods Circle
Cincinnati, OH 45242
Plaintiffs
vs.
PATRICIA A. DUBS
277 Sample Bridge Road
Mechanicsburg, PA 17050
Defendants
NO. 2005 1327 Civil Term
CIVIL ACTION - LAW
PLEAS
dNSYLVANIA
Pursuant to Pennsylvania Rules of Civil
1028(a)(4), Defendant, Patricia A. Dubs, hereby preliminarily
Complaint as follows:
1. Paragraph one of the Complaint fails to specify exact
violation of Pennsylvania Rules of Civil Procedure 101
2. Paragraph one of the Plaintiffs Complaint refers to
Agreement. The Complaint does not specify a
alleged terms.
3. Paragraph one of Plaintiff's Complaint refers to an
indicate whether the Agreement was oral or
1028(a)(3), and
ects to Plaintiff's
accurate times to
terms of an
scenario of these
but fails to
in violation of
Pennsylvania Rules of Civil Procedure 1019(h).
4. By the nature of the averments contained in Plaintiff's Complaint, it is
inferred that there must have been allegedly a written A reement signed by
the Defendant and the Plaintiff's Complaint fails to set forth its claim based
upon a writing in violation of Pennsylvania Rules of Civil Procedure
1019(i).
5. Paragraph three of Plaintiff's Complaint refers to a Sta ement of Account
marked Exhibit "A" and there is no Statement of Acco nt attached to the
Complaint as an Exhibit.
6. Attached to the Plaintiff's Complaint is an alleged Affidavit of
Indebtedness. The Affidavit is not referred to in the body of the Complaint
and is not included in the Complaint as an exhibit o incorporation by
reference thereto. This Affidavit cannot be considered a Statement of
Account as it contains no account information other th alleged balances
and does not specify the important dates of use of the all ged credit card.
7. The Complaint fails to specify the dates of the alleged contract and the
dates of when the cause of action allegedly arose. T is omission most
likely is predicated upon the fact that the action has been brought beyond
the Statute of Limitations of four years. It is acknowledged that the
defense of Statute of Limitations is not to be included in Preliminary
Objections; however, for judicial economy, the defen e is raised at this
time. See Lewis vs. City ofPhiladelphia, 5: A.2d 874 (1987).
3
8. Paragraph four of the Plaintiff's Complaint alleges use f a credit card and
alleges that the Plaintiff has given credit to the Defe dant but there is
neither factual basis nor itemization of the credits and merely boldly
concludes a balance of $11,733.38.
9. In the wherefore clause of the Plaintiff's Complaint, there is a date
referenced. There is no factual basis setting forth the rel vancy of this date
of September 2, 2002. The Complaint fails to specify he significance of
this date and the justification for the use of this date.
10. The body of the Complaint fails to specify the relief so ght in violation of
Pennsylvania Rules of Civil Procedure 1021(a).
11. The Complaint fails to set forth the exact dates as to when the credit card
allegedly was obtained, when the balance became due, and whether the
proper dates were utilized for the calculation in the determination of the
interest claimed.
12. In the wherefore clause of the Complaint, there is a stat ment that the rate
of interest is 23.9% from the date of September 2, 2002 and the Affidavit
claims interest through July 27, 2004.
4
WHEREFORE, Defendant, Patricia A. Dubs,
Court dismiss the Plaintiff's Complaint for failure to contain
facts in the Complaint and to dismiss the Complaint as it is
Respectfully submitted,
BY:
requests that the
and specific
insufficient.
Arthur K. Dils, E;
1017 North Front
Harrisburg, PA 1
(717) 232-9724
I.D. No. 07056
Date: March 31, 2005
V02
5
CERTIFICATE OF SERVICE
I, Arthur K. Dils, Esquire, hereby certify that a true and
within Preliminary Objections has been served upon the
first class, United States mail, postage prepaid, by depositi
office in Harrisburg, Pennsylvania, on the 31" day of March
follows:
Frederic I. Weinberg, Esquire
Paul M. Schofield, Jr., Esquire
21 South 21 s` Street
Philadelphia, PA 19103
Respectfully submitted,
BY:
copy of the
individual by
same at the post
, addressed as
Arthur K. Dils, Esq in
1017 North Front S :re(
Harrisburg, PA 17102
(717) 232-9724
I.D. No. 07056
Date: March 31, 2005
6
UNIFUND CCR PARTNERS ASSIGNEE IN THE COURT OF COMM ON PLEAS
OF CITIBANK UNIVERSAL CARD SVS CUMBERLAND COUNTY, PENNSYLVANIA
10625 Techwoods Circle
Cincinnati, OH 45242
Plaintiffs
VS. NO. 2005 1327 Civil Term
PATRICIA A. DUBS
277 Sample Bridge Road
Mechanicsburg, PA 17050
Defendants CIVIL ACTION - LAW
NOTICE TO PLEAD
TO: Unifund CCR Partners Assignee
Of Citibank Universal Card Services
c/o Frederic I. Weinberg, Esquire
Paul M. Schofield, Jr., Esquire
21 South 21" Street
Philadelphia, PA 19103
You are hereby notified to plead to the within Prelimi ary Objections and
any alleged facts therein within twenty (20) days after date of se ice hereof.
Respectfully submitted,
BY: ?1,
Arthur K Di s, Esquire
1017 North rout Street
Harrisburg, A 17102
(717) 232-9 24
I.D. No. 070 6
Date: March 31, 2005
UNIFUND CCR PARTNERS ASSIGNEE IN THE COURT OF COMMON PLEAS
OF CITIBANK UNIVERSAL CARD SVS CUMBERLAND COUNTY, PENNSYLVANIA
10625 Techwoods Circle
Cincinnati, OH 45242
Plaintiffs
VS.
PATRICIA A. DUBS
277 Sample Bridge Road
Mechanicsburg, PA 17050
Defendants
NO. 2005 1327 Civil Term
CIVIL ACTION - LAW
7
Pursuant to Pennsylvania Rules of Civil Procedure 1028(a)(3), and
1028(a)(4), Defendant, Patricia A. Dubs, hereby preliminarily o jects to Plaintiff's
Complaint as follows:
1. Paragraph one of the Complaint fails to specify exact an accurate times in
violation of Pennsylvania Rules of Civil Procedure 1019 f).
2. Paragraph one of the Plaintiff's Complaint refers to
Agreement. The Complaint does not specify a
alleged terms.
3. Paragraph one of Plaintiff's Complaint refers to an
indicate whether the Agreement was oral or
Pennsylvania Rules of Civil Procedure 1019(h).
terms of an
scenario of these
but fails to
in violation of
4. By the nature of the averments contained in Plaintiff Complaint, it is
inferred that there must have been allegedly a written Ag cement signed by
the Defendant and the Plaintiff's Complaint fails to set f rth its claim based
upon a writing in violation of Pennsylvania Rules o Civil Procedure
1019(1).
5. Paragraph three of Plaintiff's Complaint refers to a Sta ment of Account
marked Exhibit "A" and there is no Statement of Acco nt attached to the
Complaint as an Exhibit.
6. Attached to the Plaintiff's Complaint is an alleged Affidavit of
Indebtedness. The Affidavit is not referred to in the body of the Complaint
and is not included in the Complaint as an exhibit o incorporation by
reference thereto. This Affidavit cannot be considered a Statement of
Account as it contains no account information other tha alleged balances
and does not specify the important dates of use of the all ged credit card.
7. The Complaint fails to specify the dates of the alleged contract and the
dates of when the cause of action allegedly arose. T is omission most
likely is predicated upon the fact that the action has been brought beyond
the Statute of Limitations of four years. It is acknowledged that the
defense of Statute of Limitations is not to be included in Preliminary
Objections; however, for judicial economy, the defens is raised at this
time. See Lewis vs. City ofPhiladelphia, 52( A.2d 874 ( 987).
3
8. Paragraph four of the Plaintiff's Complaint alleges use o? a credit card and
alleges that the Plaintiff has given credit to the Defe dant but there is
neither factual basis nor itemization of the credits a d merely boldly
concludes a balance of $11,733.38.
9. In the wherefore clause of the Plaintiff's Complain, there is a date
referenced. There is no factual basis setting forth the rel vancy of this date
of September 2, 2002. The Complaint fails to specify he significance of
this date and the justification for the use of this date.
10. The body of the Complaint fails to specify the relief soIght in violation of
Pennsylvania Rules of Civil Procedure 1021(a).
1. The Complaint fails to set forth the exact dates as to when the credit card
allegedly was obtained, when the balance became du , and whether the
proper dates were utilized for the calculation in the d termination of the
interest claimed.
12. In the wherefore clause of the Complaint, there is a stat ment that the rate
of interest is 23.9% from the date of September 2, 200 , and the Affidavit
claims interest through July 27, 2004.
4
WHEREFORE, Defendant, Patricia A. Dubs,
Court dismiss the Plaintiff's Complaint for failure to contain
facts in the Complaint and to dismiss the Complaint as it is
Respectfully submitted,
BY:
Date: March 31, 2005
requests that the
and specific
insufficient.
Arthur K. Dils, Esq
1017 North Front S1
Harrisburg, PA 171
(717) 232-9724
I.D. No. 07056
02
5
CERTIFICATE OF SERVICE
I, Arthur K. Dils, Esquire, hereby certify that a true and
within Preliminary Objections has been served upon the
first class, United States mail, postage prepaid, by depositi
office in Harrisburg, Pennsylvania, on the 31s' day of March
follows:
Frederic I. Weinberg, Esquire
Paul M. Schofield, Jr., Esquire
21 South 21st Street
Philadelphia, PA 19103
Respectfully submitted,
BY: d
copy of the
individual by
same at the post
addressed as
Arthur K. Dils, Esq in
1017 North Front S re(
Harrisburg, PA 17 02
(717) 232-9724
I.D. No. 07056
Date: March 31, 2005
6
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SHERIFF'S RETURN - REGULAR
CASE NO: 2005-01327 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
FUND CCR PARTNERS
VS
DUBS PATRICIA A
GERALD WORTHINGTON , Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according
says, the within COMPLAINT & NOTICE was served upon
DUBS PATRICIA A
the
law,
DEFENDANT , at 2100:00 HOURS, on the 17th day of March '12005
at 277 SAMPLE BRIDGE ROAD
MECHANICSBURG, PA 17050 by handing to
PATRICIA A DUBS
a true and attested copy of COMPLAINT & NOTICE together +ith
and at the same time directing Her attention to the contents thkreof.
Sheriff's Costs: So Answers:
Docketing 18.00
Service 7.40
'C ';•
Affidavit .00
Surcharge 10,00 R. Thomas Kline
.00
35,40 03/18/2005
GORDON & WEINBERG
Sworn and Subscribed to before
me this j-?-4L day of
By:
2012442
Unifuud CCR Partners assignee of
Citibank Universal Card Services
VS.
Patricia A. Dubs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2005 7 Civj 1 Term 20
RULE 1312-1 The Petition for Appointment of Arbitrators shall be substantially in the
Following form:
PETITION FOR APPOINTMENT OF ARBITRATORS
TO THE HONORABLE, THE JUDGES OF SAID COURT:
FREDERIC I. WEINBERG, ESQUIRE and
JOEL M. FLINK, ESQUIRE , counsel for the plainti ff/ in the above
action (or actions), respectfully represents that:
1. The above-captioned action (or actions) is (are) at issue.
2. The claim of plaintiff in the action is $ 11, 733.38
The counterclaim of the defendant in the action is
The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit
as arbitrators:
WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to
whom the case shall be submitted.
Respectfully submitted,
GORDON 71-Wi?ttBERG, P.C.
By: FREDERIESQUIRE
ORDER OF COURT
AND NOW,
petition,
Esq., and
captioned action (or actions) as prayed for.
200--------, in consideration of the foregoing
Esq., and
. Esq., are appointed arbitrators in the above
By the Court,
EDGAR B. BAYLEY
Slu
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FL)
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rgi
2012442
DEC 0 3 2007 1,0?
Unifund CCR Partners assignee of
Citibank Universal Card Services
VS.
Patricia A. Dubs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2005 123 7 C; yi j Term 20.
RULE 1312-1 The Petition for Appointment of Arbitrators shall be substantially in the
Following form:
PETITION FOR APPOINTMENT OF ARBITRATORS
TO THE HONORABLE, THE JUDGES OF SAID COURT:
FREDERIC I. WEINBERG, ESQUIRE and
JOEL M. FLINK, ESQUIRE counsel for the plaintiff/ t in the above
action (or actions), respectfully represents that:
1. The above-captioned action (or actions) is (are) at issue.
2. The claim of plaintiff in the action is $ 11, 733.38
The counterclaim of the defendant in the action is
The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit
as arbitrators:
WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to
whom the case shall be submitted.
Respectfully submitted,
GORDON P. C.
By: FREDERIC I WE ERG, ESQUIRE
ORDER OF COURT
AND NOW, 200 , i consideration of the foregoing
I --77A
petition, Esq., and
Esq., and Esq., are appolged arbitrators in the above
captioned action (or actions) as prayed for.
B e Court,
DGAR B. BAYLEY
iIS- CJ ti
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UNIFUND CCR PARTNERS, IN THE COURT OF COMMON PLEAS
ASSIGNEE OF CITIBANK CUMBERLAND COUNTY
UNIVERSAL CARD SERVICES PENNSYLVANIA
Plaintiffs
Vs. NO. 2005 1327 Civil Term
PATRICIA A. DUBS, CIVIL ACTION - LAW
Defendant
PETITION TO REVOKE APPOINTMENT
OF ARBITRATORS
AND NOW, this l C ?6day of December, 2007, comes Arthur K. Dils,
Esquire, the Attorney of record for the Defendant, Patricia A. Dubs, and
respectfully avers the following:
1. Your Petitioner is Arthur K. Dils, Esquire, the Attorney of Record for the
Defendant, Patricia A. Dubs, whose office is located at 1400 N. Second
Street, Harrisburg, Pa. 17102.
2. The Respondent is the Unifund CCR Partners assignee of Citibank
Universal Card Services, 10625 Techwoods Circle, Cincinnati, Ohio,
represented by Attorney Frederick I. Weinberg, Esquire, whose office is
located at 1001 E. Hector Street, Suite 220, Conshohocken, PA., 19420.
1
3. The Respondent is the Plaintiff in the above captioned action. A Complaint
was filed on March 14, 2005.
4. Preliminary Objections to the Complaint were filed on April 1, 2005. The
Preliminary Objections contained a Notice to Plead attached thereto.
5. The Respondent, Plaintiff, through counsel, Frederick I. Weinberg, Esquire,
failed to respond in any fashion to the Preliminary Objections with Notice
to Plead containing additional facts requiring a response.
6. The Respondent/Plaintiff filed a Petition for Appointment of Arbitrators on
November 29, 2007.
7. There was a delay in receipt of said Petition for Appointment of Arbitrators
by Counsel for Patricia A. Dubs in that the document was sent to a former
address of counsel's office.
8. Counsel Weinberg dated his transmittal letter November 9, 2007, which
was received by Counsel for Petitioner on November 26, 2007. Said
transmittal letter contained a copy of the Petition for Appointment of
Arbitrators.
9. Immediately upon receipt of notification of intent by Attorney Frederick I.
Weinberg to obtain appointment of a Board of Arbitration, said receipt
2
obtained on November 26, 2007, a letter was sent to Attorney Weinberg
indicating that his Petition for Appointment of Arbitrators was incorrect in
that the matter was not at issue. See copy of said letter dated November 26,
2007 attached hereto and marked Exhibit "A".
10. As of this date, Attorney Weinberg has not responded to the letter, nor has
he responded to the fact that the above captioned matter is not at issue and
has pennitted your Honorable Court to appoint a three member panel of
Arbitrators.
11. Notice was received this date that your Honorable Court has appointed
three members of the Cumberland County Bar to sit as arbitrators of a
panel, said members being: William C. Costopoulos, Esquire, Douglas G.
Miller, Esquire and Steven P. Miner, Esquire.
12. In the interest of judicial economy and to preserve the time of Counsel who
have been appointed Arbitrators in this matter, it is respectfully requested
that the appointment of said Arbitrators be revoked. This request is in
accordance with the Pennsylvania Rules of Civil Procedure and the local
Rules of Cumberland County, Pennsylvania.
WHEREFORE, your Petitioner, Arthur K. Dils, Esquire, Attorney of record
for the Defendant, Patricia A. Dubs, respectfully prays your Honorable
Court to revoke the appointment as Arbitrators in the above captioned matter
3
and that the Attorney of Record for the Plaintiff be required to follow the
Pennsylvania Rules of Civil Procedure and local Rules of Cumberland
County, Pennsylvania concerning the issues raised in Preliminary Objections
to the Complaint.
Respectfully submitted,
r'
Arthur K. Dils, Esquire
1400 N. Second Street
Harrisburg, Pa. 17102
(717) 232-9724
I.D. No. 07056
Attorney for Petitioner/Defendant,
Patricia A. Dubs
4
November 26, 2007
Frederic I. Weinberg, Esquire
1001 E. Hector Street
Suite 220
Conshohocken, PA. 19428
RE: Unifund CCR Partners Assignee of Citibank
Universal Card SVCS vs. Patricia A. Dubs
No. 2005 1327 Civil Term
Your File No. 2012442
Dear Attorney Weinberg:
This will acknowledge receipt of your letter concerning the above captioned action
dated November 9, 2007, which was received in my office this date, November 26,
2007. You sent your letter to an old address. I have been at 1400 N. Second
Street, Harrisburg, Pa. 17102 for the past twenty months.
In your letter you enclosed a Petition for Appointment of Arbitrators. In Paragraph
one (1) of your Petition, you allege that the above action is at issue. Attorney
Weinberg, this is not the case, as there are outstanding Preliminary Objections filed
on April 1, 2005.
Very truly yours,
Arthur K. Dils
AKD
Cc: Patricia A. Dubs
EXHIBIT "A"
VERIFICATION
The undersigned, Arthur K. Dils, Esquire, hereby verifies and states that:
1. He is the attorney for Patricia A. Dubs.
2. He is authorized to make this verification on her behalf.
3. This verification is made by counsel pursuant to Pa.R.C.P., Rule 1024(c).
4. The statements set forth in the foregoing Petition to Revoke Appointment of
Arbitrators are true and correct to the best of his knowledge, information,
and belief.
5. He is aware that false statements herein are made subject to the penalties of
18 Pa. C.S. Section 4904, relating to. unsworn falsification to authorities.
L
ZI z-/-
-Ibijr K. Dils, Esquire
Date: December 10, 2007
CERTIFICATE OF SERVICE
I, Arthur K. Dils, Esquire, hereby certify that a true and correct copy of the
within Petition to Revoke Appointment of Arbitrators has been served upon the
following individuals by first class, United States mail, postage prepaid, by
depositing a copy of the same at the Post Office at Harrisburg, Pennsylvania, on
the 10th day of December, 2007, addressed as follows:
Frederick I. Weinberg, Esquire William C. Costopoulos, Esquire
1001 E. Hector Street, Ste. 220 831 Market Street
Conshohocken, PA. 19420 Lemoyne, Pa. 17043
Douglas G. Miller, Esquire
630 W. Pomfret Street
Carlisle, Pa. 17013
Steven P. Miner, Esquire
3211 N. Front Street
Harrisburg, Pa. 17110
Respectfully submitted,
BY:
Arthur K. Dils, Esquire
1400 North Second Street
First Floor, Front
Harrisburg, PA 17102
(717) 232-9724
I.D. No. 07056
Date: December 10, 2007
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UNIFUND CCR PARTNERS,
ASSIGNEE OF CITIBANK
UNIVERSAL CARD SERVICES,
PLAINTIFFS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
PATRICIA A. DUBS,
DEFENDANT
05-1327 CIVIL TERM
ORDER OF COURT
AND NOW, this i I day of December, 2007, the order appointing
arbitrators, IS VACATED as improvidently granted.'
By the. rt,
Edgar . 9713ayley, J.
?Frederic 1. Weinberg, Esquire
For Plaintiffs
Arthur K. Dils, Esquire ecejo,?
For Defendant JX1,1/orb
:sal
' Defendant's preliminary objections to plaintiffs' complaint are outstanding.
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next
Argument Court.)
CAPTION OF CASE
(entire caption must be stated in full)
UNIFUND CCR PARTNERS ASSIGNEE
OF CITIBANK UNIVERSAL CARD SERVICES
VS.
PATRICIA A. DUBS
No. 1327 CIVIL 2005 Term
1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to
complaint, etc.):
PRELIMINARY OBJECTIONS
2. Identify all counsel who will argue cases:
(a) for plaintiffs:
JOEL M. FLINK, 1001 E. HECTOR ST., STE. 220, CONSHOHOCKEN. PA 19428
(Name and Address)
(b) for defendants:
ARTHUR K. DILS, 1400 N. 2ND ST., 1ST FL., HARRISBURG, PA 17102
(Name and Address)
3. 1 will notify all parties in writing within two days that this case has been listed for
argument.
4. Argument Court Date:
JULY 22, 2009
-'JOEL M. FLINK
Print your name
PLAINTIFF
Attorney for
Date: J 'off ? ' D 9
INSTRUCTIONS:
1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR
(not the Prothonotary) before argument.
2. The moving party shall file and serve their brief 12 days prior to argument.
3. The responding party shall file their brief 5 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.
CAIAI-
R t-I r_;
"Ai I
Arthur K. Dils, Esquire
DILS & DILS
1400 N. Second Street
Harrisburg, Pa. 17102
(717) 232-9724
I.D. No. 07056
Attorney for Defendant, Patricia A. Dubs
UNIFUND CCR PARTNERS ASSIGNEE
OF CITIBANK UNIVERSAL CARD SVS
10625 Techwoods Circle
Cincinnati, OH 45242,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
PENNSYLVANIA
Vs.
PATRICIA A. DUBS
277 Sample Bridge Road
Mechanicsburg, PA. 17050
Defendant
NO. 2005 1327 Civil Term
CIVIL ACTION - LAW
MOTION FOR DISMISSAL FOR INACTIVITY
WITH SUPPORTING BRIEF
AND NOW, this ?DA day of July, 2009, comes Arthur K. Dils, Esquire
and respectfully requests the following:
1. Your Movant is Arthur K. Dils, Esquire, the Attorney of record for the
Defendant, Patricia A. Dubs, whose office is located at 1400 North Second
Street, Harrisburg, Dauphin County, Pennsylvania 17102.
2. The Plaintiff is represented by Gordon & Weinberg, P.C., Frederic I.
Weinberg, Esquire and also, Paul M. Schofield, Jr., Esquire 21 South 21 st
1
Street, Philadelphia, Pennsylvania 19103 and specifically, at this juncture of
the proceedings, Joel M. Flink, Esquire, whose office is located at 1001 East
Hector Street, Suite 220, Conshohocken, Pennsylvania 19428.
3. The Plaintiff filed a civil action complaint in the Court of Common Pleas of
Cumberland County on March 14, 2005.
4. Attached to the Complaint, which was neither verified to nor incorporated
by reference into the Complaint, is an Affidavit of Indebtedness indicating
that Unifund CCR Partners assigned and transferred the cause of action to
Gordon & Weinberg, P.C. on July 27, 2004.
5. It is believed and averred that the underlying transactions allegedly occurred
prior to July 27, 2004.
6. Within a timely fashion, the Defendant, Patricia A. Dubs, filed Preliminary
Objections to the civil Complaint along with a Notice to Plead on or about
April 1, 2005.
7. No response or correction has been received.
8. While the Preliminary Objections were still outstanding, the Plaintiff filed a
Petition for Appointment of a Board of Arbitration - knowing full well the
cause of action was not at issue, the request for appointment of a Board of
Arbitration was filed in November, 2007.
9. Counsel for Defendant wrote to Plaintiff's Counsel on November 26, 2007
indicating the request for Arbitration is premature. No response to this letter
was received.
10. It was then necessary for the Defendant to file a Petition for a Rule to Show
Cause to revoke the appointment of the previously selected members of the
2
Board of Arbitration and to stop the Arbitration hearing set in the month of
December, 2007.
I l.The Honorable Edgar B. Bayley entered an order on December 14, 2007
vacating the order of the appointment of the Board of Arbitration panel.
12. No further action was taken by the Plaintiff until the late Spring of 2009,
listing the matter of the Preliminary Objections for argument before Your
Honorable Court.
13.The Plaintiff, through the pleadings, has evidenced that it was entitled to
proceed from July 27, 2004 and did not meaningfully proceed to the matter
raised until Spring of 2009, a period of approximately five (5) years.
14.The civil action Complaint was filed in 2005 and no meaningful action has
been taken until the Spring of 2009, a period of four (4) years.
15.It is believed and therefore averred that the Plaintiff cannot show any valid
reason for the delay of proceedings in this case.
16.The Plaintiffs actions have evidenced a lack of due diligence in the
pursuance of its claim.
17.The Plaintiff's counsel, under the Rules of the Pennsylvania Rules of
Professional Conduct, Rule 13 was under an affirmative duty to act with
reasonable diligence and promptness in representing its client.
18.It is averred and believed that as a consequence of the Plaintiff's inactivity
and delay, that because of the unavailability of records and recall, the
Defendant has been prejudiced thereby.
3
WHEREFORE, Your Movant, Arthur K. Dils, Esquire, respectfully prays your
Honorable Court to enter an Order granting the Motion to Dismiss the above
captioned action.
BRIEF IN SUPPORT OF MOTION FOR DISMISSAL FOR INACTIVITY
The facts in this case have been previously submitted to Your Honorable
Court by the Defendant in her Brief requesting that her Preliminary Objections be
sustained.
The facts set forth in the foregoing Motion are hereby incorporated by
reference thereto. It is respectfully submitted that the facts speak for themselves
and it is imperative to note that the Plaintiff has not responded in a proper fashion
to bring its claim forward. Because of this lack of action, it is suggested that your
Honorable Court should be greatly concerned as to the delay by the Plaintiff on the
ramifications upon the Defendant.
The Court of Common Pleas in the Commonwealth of Pennsylvania have
routinely sua sponte entered purge motions as a result of inactivity for a period of
two years. It is axiomatic that the purge motions give ample opportunity to the
party to be affected by the purge to respond and give explanation or excuse for the
delay and the prosecution of its alleged claim.
4
By the aforesaid Motion to Dismiss, it is averred that the Plaintiff should be
given an opportunity to explain and that under the circumstances of this case, the
Plaintiff is chargeable with one of due diligence and in failing to institute and
prosecute its claim, that this laxity that the claim should be dismissed.
The Defendant relies upon Pennsylvania Rules of Professional Conduct,
Rule 13. It has been held as a general principle concerning delay that a claim can
well be barred for lack of activity. Fidelity and Casualty Company of New York
vs. Kizis, et ux, 70 A. 2nd 227, 363 Pa. 575, 578 (1950).
Respectfully submitted,
BY: /z7/J'25'z
4-
Arthur K. Dils, Esquire
1400 N. Second Street
Harrisburg, Pa. 17102
(717) 232-9724
I.D. No. 07056
5
CERTIFICATE OF SERVICE
I, Arthur K. Dils, Esquire, hereby certify that a true and correct copy of the
within Motion to Dismiss for Inactivity with Supporting Brief as been served upon
the following individuals by depositing a copy of the same at the Post Office at
Harrisburg, Pennsylvania, Postage Prepaid, First Class Mail, on this 30th date of
July, 2009, addressed as follows:
Joel M. Flink, Esquire
1001 East Hector Street
Suite 220
Conshohocken, PA. 19428
Rest submitted,
B'Z'
rthur K. Dils, Esquire
1400 North Second Street
Harrisburg, PA 17102
(717) 232-9724
I.D. No. 07056
July 30, 2009
J- 3
Cu. -
AUG 0 5 20094
Arthur K. Dils, Esquire
DILS & DILS
1400 N. Second Street
Harrisburg, Pa. 17102
(717) 232-9724
I.D. No. 07056
Attorney for Defendant, Patricia A. Dubs
UNIFUND CCR PARTNERS ASSIGNEE
OF CITIBANK UNIVERSAL CARD SVS
10625 Techwoods Circle
Cincinnati, OH 45242,
Plaintiffs
Vs.
PATRICIA A. DUBS
277 Sample Bridge Road
Mechanicsburg, PA. 17050
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
PENNSYLVANIA
NO. 2005 1327 Civil Term
CIVIL ACTION - LAW
RULE TO SHOW CAUSE
AND NOW, this day of 2009, upon
presentation and consideration of the within Motion to Dismiss for Inactivity with
Supporting Brief, it is hereby Ordered that a Rule is entered upon the Plaintiffs,
Unifund CCR Partners Assignee of Citibank Universal Card SVS, to show cause,
why, if any, said Motion should not be granted.
2
Said rule is returnable ` 71.0 days after service.
All proceedings to stay in the meanwhile.
Distribution:
L,?rthur K. Dils, Esquire, 1400 N. Second Street, Hbg., Pa. 17102
_,-Toe] M. Flink, Esquire, 1001 East Hector Street, Suite 220, Conshohocken, Pa.
19428
??cp
.t
r- ..
rt``?fi'i7
UNIFUND CCR PARTNERS, IN THE COURT OF COMMON PLEAS
ASSIGNEE OF CITIBANK CUMBERLAND COUNTY
UNIVERSAL CARD SERVICES PENNSYLVANIA
Plaintiffs
Vs. NO. 2005 1327 Civil Term
PATRICIA A. DUBS, CIVIL, ACTION - LAW
Defendant
PRAECIPE
TO THE PROTHONOTARY:
Please withdraw the Motion to Dismiss for Inactivity with Supporting Brief
and Rule to Show Cause dated August 6, 2009 filed on behalf of the Defendant,
Patricia A. Dubs, in the above captioned matter. Counsel for the Plaintiff is aware
of this Praecipe and is in agreement.
Respectfully submitted,
B
Arthur K. Dils, Esquire
1400 N. Second Street
Harrisburg, PA. 17102
(717) 232-9724
I.D. No. 07056
DATE: August 26, 2009
CERTIFICATE OF SERVICE
I, Arthur K. Dils, Esquire, hereby certify that a true and correct copy of
the within Praecipe has been served upon the following individuals by depositing a
copy of the same at the Post Office at Harrisburg, Pennsylvania, First Class, United
States Mail, Postage Prepaid, on this 26th day of August, 2009, addressed as
follows:
The Honorable Edgar B. Bayley
President Judge
Cumberland County Court House
One Court House Square
Carlisle, PA. 17013
Court Administrator
Cumberland County Court House
One Court House Square
Carlisle, Pa. 17013
Joel M.Flink, Esquire
1001 E. Hector Street
Suite 220
Conshohocken, PA. 19428
pect lly submitte ,
BY.
Arthur K. Dil' Esquire
1400 N. Second Street
Harrisburg, PA. 17102
(717) 232-9724
I.D. No. 07056
Date: August 26, 2009
FLED--D"'FiCtE
OF Tit F^NARY
2009 AUG 27 F 3, 41
t .w
UNIFUND CCR PARTNERS
ASSIGNEE OF CITIBANK
UNIVERSAL CARD SVS,
Plaintiff
vs.
PATRICIA A. DUBS,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
: NO. 05-1327 CIVIL
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS
BEFORE HESS, OLER AND GUIDO, J.J.
nDF)ED
AND NOW, this J'' day of September, 2009, the preliminary objection of the
defendant in the nature of a demurrer is OVERRULED. The preliminary objection in the nature
of a motion for a more specific pleading is GRANTED and the plaintiff is directed to comply
with the requirements of specificity as set forth in Atlantic Credit and Finance, Inc. v. Giuliana,
829 A.2d 340, 344-45 (Pa.Super. 2003).
`Joel M. Flink, Esquire
For the Plaintiff
i
`Arthur K. Dills, Esquire
For the Defendant
Arn
1
C?141d?
BY THE COURT,
T ,_?
UNIFUND CCR PARTNERS
ASSIGNEE OF CITIBANK
UNIVERSAL CARD SVS,
Plaintiff
vs.
PATRICIA A. DUBS,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 05-1327 CIVIL
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS
BEFORE HESS, OLER AND GUIDO, J.J.
OPINION AND ORDER
This is a case involving a cpmplaint for amounts due representing the balance on a credit
card. The defendant has filed preliminary objections in the nature of a demurrer and also in the
nature of a motion for a more specific pleading. The issues are very similar to those raised in
Hudson & Keyse v. Patlatyuk., 08-5886 Civil Term, Cumberland County. The undersigned
recently filed an opinion in that case which we attach hereto and incorporate by reference.
Consistent with our holding in Hudson & Keyse, LLC, we will overrule the preliminary objection
in the nature of a demurrer. We will, however, sustain the preliminary objection in the nature of
a motion for a more specific pleading and specifically direct compliance with Atlantic Credit and
Finance, Inc. v. Giuliana, 829 A.2d 340, 344-45 (Pa.Super. 2003).
nRT)FR
AND NOW, this day of September, 2009, the preliminary objection of the
defendant in the nature of a demurrer is OVERRULED. The preliminary objection in the nature
of a motion for a more specific pleading is GRANTED and the plaintiff is directed to comply
VA s
NO. 05-1327 CIVIL
with the requirements of specificity as set forth in Atlantic Credit and Finance, Inc. v. Giuliana,
829 A.2d 340, 344-45 (Pa.Super. 2003).
BY THE COURT,
Kevin,K. Hess, J.
Joel M. Flink, Esquire
For the Plaintiff
Arthur K. Dills, Esquire
For the Defendant
rlm
2
HUDSON & KEYSE, LLC,
Plaintiff
vs.
SVETLANA PATLATYUK,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 08-5886 CIVIL
IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT TO AMENDED COMPLAINT
BEFORE HESS OLER AND GUIDO, J.J.
ORDER
AND NOW, this 3`J day of September, 2009, the preliminary objection of the
Defendant in the nature of a demurrer to the Plaintiff's claim for breach of contract is DENIED.
The preliminary objection of the Defendant in the nature of a demurrer to a count of
quantum meruil is GRANTED and said count is DISMISSED.
The Defendant's preliminary objection in the nature of a motion for a more specific
pleading is GRANTED and the Plaintiff is granted leave to amend the complaint consistent with
the accompanying opinion and, specifically, with the standards as set forth in Atlantic Credit and
Finance, Inc. v. Giuliana, 829 A.2d 340, 344-45 (Pa.Super. 2003).
BY THE COURT,
Ronald Amato, Esquire
Michael J. Kennedy, Esquire
Michael R. Lessa, Esquire
Justin N. Davis, Esquire
For the Plaintiff
John G. Milakovic, Esquire
Thomas S. Beckley, Esquire
For the Defendant
Am
HUDSON & KEYSE, LLC,
Plaintiff
vs.
SVETLANA PATLATYUK,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 08-5886 CIVIL
IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT TO AMENDED COMPLAINT
BEFORE HESS OLER AND GUIDO, J.J.
OPINION AND ORDER
On October 2, 2008, Hudson & Keyse, LLC ("Plaintiff") filed a complaint against
Svetlana Patlatyuk ("Defendant"). Plaintiff is the ultimate assignee of Citibank (South Dakota),
N.A. ("Citibank").' Plaintiff asserts two causes of action against Defendant: breach of contract
and, in the alternative, quantum meruit. Plaintiff alleges that Defendant failed to make timely
payments on her credit card account with Citibank as required by the credit card agreement.
Alternatively, Plaintiff alleges that Defendant was unjustly enriched by obtaining a credit card
from Citibank, using it, and failing to pay for its use. Included as exhibits to Plaintiff's
Complaint are monthly statements showing assessments of periodic interest on Defendant's
account and three "Bill of Sale, Assignment and Assumption" agreements establishing a chain of
title between Citibank and Plaimiff.
Defendant filed Preliminary Objections to Plaintiff's Complaint, including a demurrer to
Plaintiffs breach of contract claim, a motion to strike the entire complaint for failure to conform
to rules of court, and in the alternative, a motion for a more specific pleading. Plaintiff then filed
1 Citibank first sold its rights pursuant to its account with Defendant to New Century Financial Services, Inc. Next,
New Century Financial Services conveyed its rights to Defendant's account to Resurgence Financial, LLC. Finally,
Resurgence Financial transferred its rights under Defendant's account to Plaintiff. (See Ex. B of Plaintiffs
Amended Complaint.)
NO. 08-5886 CIVIL
its Amended Complaint in which it noted that it was making progress toward obtaining the
cardholder agreement between Citibank and Defendant. Defendant has again filed Preliminary
Objections in the nature of demurrer to Plaintiff's breach of contract and quantum meruit claims,
and alternatively, a motion for a more specific pleading.
Defendant challenges Plaintiff's breach of contract claim in Preliminary Objections in the
nature of a demurrer. When ruling on a preliminary objection in the nature of a demurrer, the
court must accept as true every material and relevant fact well pleaded in the complaint and
every inference reasonably deducible therefrom. See, e.g., Yania v. Bigan, 397 Pa. 316, 318, 155
A.2d 343, 344 (1959). A demurrer does not admit conclusions of law or unjustified inferences.
See, e.g., Lerman v. Rudolph, 413 Pa. 555, 557-58, 198 A.2d 532, 533 (1964). The question
presented by a demurrer is whether, on the facts averred, the law says with certainty that no
recovery is possible. Hoffman v. Misericordia Hosp, of Philadelphia, 439 Pa. 501, 503, 267 A.2d
867, 868 (1970). If any doubt exists as to whether a demurrer should be sustained, the demurrer
should be overruled. Hoffman, 439 Pa. at 504, 267 A.2d at 868.
To establish a facially valid breach of contract action, the plaintiff must plead the
existence of a contract, including its essential terms, a breach of a contractually-imposed duty,
and resultant damages. See, e.g., CoreStates Bank, N.A. v. Cutillo, 723 A.2d 1053, 1058
(Pa,Super. 1999). While it is not necessary to state each term in exacting detail, every element
must be specifically pleaded. Id.
Turning to the contents of Plaintiff's Amended Complaint, it is clear that it has pleaded
sufficient facts to set forth a facially valid breach of contract action. Starting with the existence
of a contract, Plaintiff alleges Defendant obtained a credit card account with Citibank on or about
2
NO. 08-5886 CIVIL
July 1, 1998. (Amend. Compl. ¶ 1.) While Plaintiff acknowledges that it currently is not in
possession of the credit card agreement between Citibank and Defendant, it does allege that the
contractual interest rate is 20.74% per annum. (Amend. Compl. ¶ 12.)
Plaintiff has also pleaded sufficient facts to set forth a breach of a contractually-imposed
duty and resulting damages. This comes in the form of Defendant's alleged failure to make
timely payments as required under the cardholder agreement. (Amend. Compl. ¶ 6.) Defendant
allegedly owes Plaintiff $2,944.48 plus $2044.54 interest as of November 3, 2008, continually
accruing at the rate of 20.74% per annum. (Amend. Compl. T¶ 8, 13-14.) Because sufficient
facts to set forth a facially-valid breach of contract claim have been pled, Defendant's
preliminary objection in the form of a demurrer to Count I of Plaintiff's Amended Complaint
will be overruled.
Plaintiff includes in its Amended Complaint Count II, setting forth a quantum meruit
claim against Defendant. Quantum meruit is an equitable quasi-contract doctrine. Wiernik v.
PHH U.S. Mortg. Corp., 736 A.2d 616, 622 (Pa.Super. 1999). Elements of a quantum meruit
claim include, "benefits conferred on defendant by plaintiff, appreciation of such benefits by
defendant, and acceptance and retention of such benefits under such circumstances that it would
be inequitable for defendant to retain the benefit without payment of value." Id.. (quoting Styer v.
Hugo, 422 Pa.Super. 262, 267, (519 A.2d 347, 350 (1993)). The law does not always require an
election of remedies as between breach of contract and quantum meruit. To the contrary, in
proper cases, claims for breach of contract and quantum meruit are not inconsistent. See Larry
Pitt & Associates v. Long, 716 A.2d 695, 703 (Pa.Cmwlth. 1998) (Workers' Compensation
claimant's former attorney, who sought recovery of attorney fees, was not restricted to an
3
NO. 08-5886 CIVIL
election of either a remedy for breach of contract or a remedy by way of quantum meruit.) On
the other hand, it has been held that where the contract is written or expressed, the doctrine of
quasi-contract or quantum meruit, is inapplicable. Northeast Fence and Ironworks, Inc. v.
Murphy Quigley Co., Inc., 933 A.2d 664, 669 (Pa.Super. 2007) citing Lackner v. Glosser, 892
A.2d 21, 24 (Pa.Super. 2006).
The dispute in the case .rub judice arises from a written contractual agreement between
Defendant and Citibank. Plaintiff quotes Northeast Fence & Iron Works, Inc. v. Murphy Quigley
Co., Inc., 933 A.2d 664 (Pa.Super. 2007) and has apparently given the phrase "in spite of the
absence of an agreement" a far too literal reading. The absence of an agreement is not the same
as the inability of Plaintiff to obtain a copy of an existing agreement. As a result of the express,
written nature of the relationship at issue here, Defendant's Preliminary Objection in the nature
of a demurrer to Plaintiff's quantum meruit will be sustained,
Next is the question of whether the court should grant Defendant's motion for a more
specific pleading. Defendant argues that Plaintiff's Amended Complaint fails to conform to the
requirements of Rule 1019(f), which requires "averments of time, place and items of special
damage shall be specifically stated" in a complaint. Pa.R.C.P. 1019(f). As a result of these
omissions, Defendant argues that it is not possible to respond to Plaintiff's Amended Complaint
and moves for a more specific pleading pursuant to Rule 1028(a)(3).
As noted above, Rule 1019(0 requires specific averments of time, place and items of
special damages. Subdivisions (h) and (i) of Rule 1019 are also relevant in this context. Rule
z The allegation that the defendant enjoyed the benefit of obtaining goods and services by using her credit card
merely underscores the importance of'written documentation of the credit card transactions. In the meantime, the
assessment of late fees and arguable usurious interest can hardly be said to be "benefits" which were "appreciated"
by the defendant and inequitable for the defendant to "retain."
4
NO. 08-5886 CIVIL
10 19 (h) requires that "when any claim or defense is based upon an agreement, the pleading shall
state specifically if the agreement is oral or written." Pa.R.C.P. 1019(h). Directly related to Rule
1019(h) is subdivision(i), which states:
When any claim or defense is based upon a
writing, the pleader shall attach a copy of the
writing, or the material part thereof, but if the
writing or copy is not accessible to the pleader, it is
sufficient so to state, together with the reason, and
to set forth the substance in writing.
Pa.R.C.P. 1019(1). Thus, there is substantial overlap between subsections (f), (h), and (i) of Rule
10 19 in the context of a civil action to recover an outstanding credit card balance.
Generally, when evaluating a motion for a more specific pleading under Rule 1028(a)(3),
the issue is "whether the complaint is sufficiently clear to enable the defendant to prepare his
defense, or whether the plaintiffs complaint informs the defendant with accuracy and
completeness of the specific basis on which recovery is sought so that he may know without
question upon what grounds to make his defense." Rambo v. Greene, 906 A.2d 1232, 1236
(Pa.Super. 2003) (quoting Amlung v. City of Chester, 224 Pa.Super. 47, 302 A.2d 491, 498 n. 36
(1973)) (internal quotation marks omitted). In debt collection actions filed by credit card
companies against their customers, the plaintiff must include with the complaint a copy of the
credit card agreement and a statement of account. Atlantic Credit and Finance, Inc. v. Giuliana,
829 A.2d 340, 344-45 (Pa.Super. 2003). In addressing the question of whether preliminary
objections asserted a meritorious defense for the purpose of opening a judgment, the court said:
We find that the failure to attach the writings
which assertedly establish appellee's right to a
judgment against appellants in the amount of
$17,496.27, based on an alleged debt it allegedly
purchased for substantially less than $9,644.66, is
5
11 . NO. 08-5886 CIVIL
fatal to the claims set forth in appellee's complaint.
Thus, the preliminary objection of appellants based
on failure to produce a cardholder agreement and
statement of account, as well as evidence of the
assignment:, establishes a meritorious defense.
Id. at 345. Additionally, "an assignee may sue as the real party in interest, but it must first `trace
in [its] pleading the derivation of [its] cause of action from [its] assignor."' Remit Corp. v.
Miller, 5 Pa. D. & C.5th 43, 47 (Centre Co. 2008) (quoting Brown v. Esposito, 157 Pa. Super,
147, 149, 42 A.2d 93, 94 (1945)). In addition, in Remit Corp., the court held that the plaintiff
had not complied with the requirements of Rule 1019(i) by including with its complaint an
unsigned credit card agreement dated two years after the defendant allegedly opened her account.
Remit Corp., 5 Pa. D. & C.5th at 45.
In Capital One Bank (US,4) NA v. Clevenstein, 7 Pa. D.& C. 5`h 153 (Centre County
2009), the court held that the plaintiff satisfied Rule 1019(1) by including with its complaint
"several Capital One monthly billing statements bearing defendant's name, dating from the
opening of the account to the present, and reflecting individual charges and fees," sufficient to
illustrate how the plaintiff arrived at the amount it sought from the defendant. Capital One Bank,
7 Pa. D. & C.5th at 156. We decline to hold that the Plaintiff in this case must attach each and
every monthly billing statement. It is possible, in fact, that the contract between the parties
precludes a challenge to a credit card transaction after a certain period of time. Nonetheless, we
are satisfied that, in this case, Plaintiffs Amended Complaint falls short of the requisite
specificity required by Rule 1019.
In this case, while Plaintiff acknowledges that it is not currently in possession of the
credit card agreement between Citibank and Defendant, it has failed to set forth the substance of
6
NO. 08-5886 CIVIL
the contract, as required by Rule 1019(i). These terms are essential, as they would presumably
explain the imposition of interest, fees, and other charges that led to the sum to which Plaintiff
claims entitlement. Instead, attached to the complaint are several monthly statements supporting
Plaintiff's conclusory claim of entitlement to judgment in the amount of $5,055.94 plus
continually accruing interest at the rate of 20.74% per annum from November 3, 2008. These
statements come after Defendant ceased using the card for purchases and/or cash advances, as
they show that the only charges incurred by Defendant are periodic interest charges. As a result,
they do very little - if anything at all - to illustrate how Plaintiff arrived at the amount it now
seeks from Defendant.
ORDER
AND NOW, this 3'4 day of September, 2009, the preliminary objection of the
Defendant in the nature of a demurrer to the Plaintiff's claim for breach of contract is DENIED.
The preliminary objection of the Defendant in the nature of a demurrer to a count of
quantum meruit is GRANTED and said count is DISMISSED.
The Defendant's preliminary objection in the nature of a motion for a more specific
pleading is GRANTED and the Plaintiff is granted leave to amend the complaint consistent with
the accompanying opinion and, specifically, with the standards as set forth in Atlantic Credit and
Finance, Inc. v. Giuliana, 829 A.2d 340, 344-45 (Pa.Super. 2003).
BY THE COURT,
7
NO. 08-5886 CIVIL
Ronald Amato, Esquire
Michael J. Kennedy, Esquire
Michael R. Lessa, Esquire
Justin N. Davis, Esquire
For the Plaintiff
John G. Milakovic, Esquire
Thomas S. Beckley, Esquire
For the Defendant
Am
8
FiLF-4-OF f `F
20z14 SEP - 9 f li 1: '13 1
L v • ?,??1Y
2012442
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
UNIFUND CCR PARTNERS ASSIGNEE
OF CITIBANK UNIVERSAL CARD
SVGS
VS.
PATRICIA A DUBS
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
DOCKET NO. : 05-1327 CIVIL
ORDER TO SETTLE, DISCONTINUE AND END
TO THE PROTHONOTARY:
Kindly mark the above-captioned matter settled, discontinued
and ended upon payment of your costs only.
GORDON & WEINBERG, P.C.
BY:
FREDERIC \L..--l?OEINBERG, ESQUIRE
JOEL M. FLINK, ESQUIRE
Attorney for Plaintiff
P003
?CE
{ l?
2009 OCT -2 PM t : 05
c pEN ZVk A