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Home My WebLink About05-1771l IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FORD MOTOR CREDIT COMPANY, Plaintiff, CIVIL DIVISION NO. C)5" - J JAJI ?l v 1 -7 TYPE OF PLEADING: COMPLAINT vs. DAVID L. KIRBY, Defendant. CODE - 011 - ASSUMPSIT FILED ON BEHALF OF: Plaintiff, Ford Motor Credit Company COUNSEL OF RECORD FOR THIS PARTY: DONALD S. MAZZOTTA, ESQUIRE Pa. I.D. #11461 METZ LEWIS, LLC 11 Stanwix Street, 18t" Floor Pittsburgh, PA 15222 (412) 918-1186 (412) 918-1199 NOTICE TO DEFEND 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 SHOULD 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. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ON AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Lawyer Referral Service Court Administrator 4th Floor, Cumberland County Courthouse S. Hanover Street Carlisle, Pennsylvania 17013 (717) 240-6200 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FORD MOTOR CREDIT COMPANY, CIVIL DIVISION Plaintiff, vs NO. 05 DAVID L. KIRBY, Defendant. COMPLAINT - CIVIL ACTION AND NOW, COMES the Plaintiff, Ford Motor Credit Company, by its attorneys, Metz Lewis, LLC, and respectfully presents its complaint in civil action against the Defendants above-named upon a cause of action whereof the following is a statement: 1. Ford Motor Credit Company is a corporation doing business at PO Box 6508, Mesa, Arizona 85216, and is hereinafter referred to as "Plaintiff." 2. David L. Kirby is an individual residing at 1326 Ritner Highway, Shippensburg, Cumberland County, Pennsylvania 17257, and is hereinafter referred to as "Defendant." 3. Defendant entered into a written Lease agreement (hereinafter "Lease") for personal property. Defendant agreed to pay Plaintiff under the terms of Lease. A copy of Lease is marked Exhibit "A", attached hereto and made a part hereof. 4. Plaintiff is the holder of Lease and is entitled to payment under the terms thereof. 5. Defendant defaulted by failing to make payment when due and Plaintiff took possession of its collateral. Plaintiff mailed notice of the repossession to the Defendant. 6. Plaintiff sold the motor vehicle at auction. 7. After the sale of Plaintiff's collateral, Plaintiff applied the expenses of retaking and sale of the collateral, and also the proceeds of sale previously to the Defendant's account and Plaintiff incurred a Deficiency Amount of $8,154.22. 8. Plaintiff is entitled to interest from August 27, 2004 to March 22, 2005 at 6.000% per annum, totaling $277.33. 9. Demand for payment has been made upon Defendant, but Defendant has failed or refused to pay. 10. Under the terms of Agreement, Plaintiff is entitled to reasonable attorney's fees of 20.00° of the outstanding balance due, in the sum of $1,630.8492.36. WHEREFORE, Plaintiff seeks judgment against David L. Kirby in the amount of $10,062.39, plus interest from March 23, 2005 to date of judgment and costs of suit. METZ LEWIS, LLC BY: /nt YlUiIl ooxra ci s zzotta, Esquire Attorneys', r Plaintiff Rnnnaulunnio ' 1-800-727-7000 Motor Vehicle Lease Agreement La-Dals, 07/13/20 '-1 Cp{gzs?e) -Name aM Addrms Ilnclurfing County): ?d el U l I3 6 RITN R HWY a f HIPPENSBURG PA 17 JUL 18 20 ® I 268 01 m S PA NE. HIPPENSBURGURG, PA SHIPPENSBURG, PA 17257 ua50 ! ?? `Fofd Cndn" s Fom Mot' eremt compar,y Tne -Nalaer a !LING TRUST am 'is ass-S, Ry aigldnp "YW' (Lessee and CO-Leaded) agree a lease INS Vehkls accorang to Ina firms on me nom and neck 0l Inie lease. A>onAl,udOa?ro Mtaaaa el D.a+rc a MabM.M oV W XTrwp Irosq - W- la r V.beu Ure NEW 170 2001 FORD F1SO IFTRXI7L91NA38064 PERSONAL s. Amount Dua Ac f, atoolm, Pav- ]. IXlbr Chwg'es a. Total OI Prymena We. Si"o « l 499 90 Y mot Pan CYO. -w paymenp (Tne -,YOU will nave -,y Da Plamaee nalowl' . our not momma a S a ass on 07713 ?(? 35 dspddfion Fsp ld Yiw do ha a Ina Vad k ALA Plod toy Me 1W a s,s case) M _ Paymems of-= d39_Uon ma 12TH K los n p ) _-. NLA 3188.40 der pf data -a Ti,. PNN a van mammy 1 J996 90 _ _ Z LA- S . Paylrem. a E TOIM s li/ Ii-_ s?46Bq„9b_ • usmludon a Amount Du. Al Lee.. Sipnbp «DexarY S Amounts, DYa m Lease Bigntn9 w DNHary: S. M me A t Dua at Lew SlpnMg w Dellvary ww bs paid: DApiwzadcwtleDADOn S.2Lm.0L_._ 0. Fiat -1* Paymam 449.9(1 R-dabia e. u BY dePden J" -`_ N e tads Ibw S-15D0-OJD_ d T.. lees .OLA_._ b. R.W., and no-sn,alas _1000 no _ e, Req.mdn fee. A-- m be paid in Caen GaN en _ p.R4r FEE___ __ 54.?OT ---- N1A Taal s318aJO Taal f_3188 40- 7. Ydw malnniy payment le detarsnNretl e< Mown below. e. Orou WplWlaad wst. Tne agreed upon Willa of ae Venicb (S 74554 ?? t and Any Gems You PAY over me ease fens (&;m as bent[. COMra.s. in and., a ut any of awding Prior aatlG Or lane Mlencal....„._ ............ .. 3 }6D-,?? (Iamlmd bMw)" 0. C.PIWIead alias isduction. The amowA a any m1 bedo-M Wl asaws, rebaa. ndncash treat. w teen Mm Yu YMalreeuo&S.Ma oast OaPlWiZed tael ............................ _.. ............................ ....... Adjosa-dephMbeO eM Tne emounl uAad M da .a g blur Mee rnonany it st nd ................. ...... .............. .... _ d, R-W-1 nW. Tne veWa a fu Venlda in Ina and of me bees Lead In cak,, I.*g N bane monihy paymam.... ..0"'iniMan Mdany am.nWd--ft. The arnama 0-90 br giro WHa.'i decline in value ttro nolmMuseendbr aner i-1Md owr us, casearm ..... ......... ..... __-...................... ............ ............ .. _ -12323-00 f. Rent ehAfga, TM Arrqunl dhsrgsd in add&, to db depaciaOM and any em,dodd ............... ......... + 4187,. 32-- p. TOW «MM nPOntlfh' PaYM""- The dapncalim Ard any a-slized-nis Plus 'In. mnl chalg. ............. ... i2'- _ ?5'10 : n. Leila Monswas. The number of Payments in Your lease ................. .. .... .. .... .... i36 ._ 1. BW montnly ttaYment ...... 49 82 -_ .- ). zAnntnty eMes /ur l.s ...... ... ... .................._.. .............. + .41-..28--- ........ + M. 1 . _. ...... ..... ......... + N{A--- m.TOtflmeamtyPaymen. ,......... ...... _.._.. $49"0-- n. L.ea wm M,nbmm :......... ...._.......... _................ ...___. ............._. ............ 36 - y- EMry TemNndtm. beaMNl.inya N Y'aY bed mb bate early. T111-f21fDaIDeY la Nd ro eevNZf Mouesrd MIMe. $ -= . TM ecabl chYge Mil n wMn MCWpaMmWIN. TIa YdMNVou vM IM WY. Me peptM yla ldurgaa Nkely to be. a. Es- WaN and U.e. Wu may ba aia19aa to, noecarva wear bead m wr NeMeMe br mrmM LSO. M Ina soneaxed,ed a eta lease, ura.es g g p Yell pu 11ese me venue. Yw mar IssY w Lessor ,-15__ wrae per mad br dam rNla b -of _45170. nee .rmyn on Ina ummxe.. sod isms Ia as zz on bear ax edlflpnal ..tees wear andLea awm- f. Satre YIINge Option Creek. Al fIe sMedubd eM d ma leave, Ybu oral recent a credit a _ cane per uusee .Ale br Ina mmx,er a -anted ilea toss,- N /A and N /A nixes, ode a y enw m Wu Owe MN p ? sas.. ou will na ererva any neon x the V.111 A tl,..,ad. G You I.rminaa W , Wu ad'. -,j" Arc) p-n- n,-, are M.1, Or d,s cndn k less than fl.dp 0, ft--owl..nEndwLeeseT.- f_ .113279f Wue«N.slfauentlaaealeyO i""and P4MhWPPVM dsa d o ne i b h n . . P y k opl n aceSaVenklal on Lasso sW 1 ^°°^for"P-hoops s.-.A- d. n, I. e.almdVbuennot An dd.aL. otMr Ilnpwl- Team Sea blur Iease dOCUmanb ror aeauonal Imor - do eery I.-.,,n, -s. d[+aOn end melMen.NCa rafpontihiZ. v,aMnlies, lea end.. -t.s, -- and Ny aedurily s,..L, f .Par as,.. tt. WARRANTY The Vani.f d covered by --Y- ..ad -Y w It. Cons.. ndlcaad lbbw: E] Slardald now Vahda -y wovided by ma ulpcNr aaMbubr a me Vehicle. C 36 MONTHS --- 35400 MILES __ R aa+WxaraaetYOS nanwy wee ar iaN.v+d uw aMtlbfaeo,w I? ed I In,Yd.d..m.amt,...a.„eaa °'°y"°N'"'w•"""` w..+Iq w vwae sepia fg.mye n fame adxeleeea,`/au gas So pa Carpet nseed w.r.nu.. a msaMroblRlr ror fulen a e IstkaeN PePefa slosatgfbashide. 00-1 ao-si wedd"llwaabau-Nano e audsanT/W warrarW eyaptea ofklwee IeaMedp Cab bw JIJG\.4s s OFFICIAL FEES AND TA%ESf Th Tne eeamated bW enlOwll Y. wxl pay la oai.ar and ndwda less, , mpar.fbn, ale argil ease over tlw farm a Yarr base, -der it - wim Yble mpndxy paym.na or -saw ahereve. T. acMal tool a e by sad saes may ba laver tlep.Iltluq do 41a Mil raas M saect a dN value OI me l d! aeW Dm ",wrh M die Nme a Iro a W a asaeeeee. m ullSOR SERVICES A/_6 _ < n S e em l8 an bacM) JI(y? __ I , ? , , ? ?` x 11. LATE PAYMENTS WY w?N p: a late cMrpe .1 ? ? ' ? / / A , ` dam DayrtbM mAt is na recebee wnhn td days she. l q ) ? '1 a a due. The Marge is 1,8% d m. Nd am.uM a elk ? / / scnadaad payment Pr now wnkhewr is la- Non a 0- caRNkeU Aglbd Upon Vewe f p991 TNe Fees L-8 ReDSbApon A lessor Savicas Agyulsieul Fee AP ame b b ?? on-.- Fee ilia Iwn OisaCNry In ma S? Pre s _N7n • f--N/A-.- pmmum • s. N/A---- .f_ N>A . s 1! -_ , x?NEAe @E_ Taal Gme. Cepnea-QW .:-%1s80- AND IMPORT 1 ANT NOTICES M d"k-don: Tns kale tea ban N O1 fM .waemaas s,1 Lassdr rd Ybu b IM lease a Ins VeNCle. Then a nil pnbr g .Any Merge in Inls so I ng.ane Bred M"MY and Fard c L en _ NY ?... _-_ Tlk I C lessee: R __ Tl? ?, NoTrCE: (I)D. na MOn tMe Wmb.mn YOU maenw NN hae.nYw.M epaea toawlW ln.(aI YOU new tM APMapN afilaWn eepyatMa kw. You Waa 1141 You nwa bw gNen • diledan copy of RIa Ibse W me tlrrti YOY alpn n gird mica a en NdgnmMl a sMa base by ssiprw ro nnlermepary-, .s 1*nn,. m IM Rad came Leoe Aasgvnenl, GS ngmc lob rol rte aapatiONl wm respect b In. pu-.. a ina v.NCb end m. sale OI IN. VMica at aaas nn-a Lnedr A-A. ass IoW end aeai9nc G lo, Nader under IM arms a the Rae / IWR egm MI CPS F n e Deawn Lesaol end Hader Lapse Wkrwise indica-,- EV GUARA" -i INTERSTATE FORD. [NC. O-t) ...T7 Goatee Fora oral S -Two w xy tard-d-now, FC - Iddd. F NW od NOTICE: SEE OTHER SIDE FOR IMPORTANT INFORMATION ORIGINAL previous editions may Nor bs used. .i. P i VEHICLE MAINTE ANC E, SURANCE AND USE 16, VEHICLE USE AND SUBLEASING You to rat use, Or Permit One. Id 19. VEHICLE INSURANCE 1bu Most insure the Vehicle donna this lsaw. This uM Ma Ven'IGe (.) m vblaldn of any Irw,,Ib).paNrery Iq tit Previsions of Mewanaw fowl be ateepOMs to Fold Credit and prdleat You and Holder any kou.wa polldee clearing yb Vehlck;-(ci dunitle IN stela wNre fires wtM (a) comisho anava are oNUert I.-- with a fI D.CI INe l dr NgisNNd f. mad Men 30 day. weldrit Ford Chase. wham con- amoum el $1,004; end (b) caendar and upset Insurance with a SaUdio01 ' sent. (a) stands to L ywal Sobs, aacepa lot Win than 30 as" in Canada dalogile at S1,000; said (b) ouldm ,Vw I.W y inaumnce with 1g101mu(g a (a) as a Prwale or pudic canbr. mu will keep this lease fond Womo a tree far aaaiA' Injury Ix seem d $15,000 for any line Peon and d all liens all encumotaneas. You wlll not assign astoll" erry .ear- $30,000 kn a,ry orle acddOm, all 55,000 b, property damage. if ". - .at I. IM Vehicle. ben wID10Vl Ford C.dll's wff. cunee n, stela In which You Miawegiet. all Vehicle asledish ur v changes to in. m eUfamoll. Moody iw nee limits areal. than in.. listed al lot 17. VEHICLE MAINTENANCE AND OPERATING COSTS Proper Vemd. boaliy iryory or aasM and pmpery damage imunr e, Vou mush muse IN meimeneze ib Yoe responsibility You most maintain antl senile the Vehicle antl the Houser at Me highw m l m limits uabldhad by Iha Vehicle atYoUr own ..pence, .",a maleddls that meet the marutaclu ida stale. Theas amounts may hat be sufXclent to cover all your liabilities. shoWificah.a. This in tudaa meowing tit n manualno ers- Wu may, wleh No eoMYX Your lnsuranc. adv.....ostaining addF roe schedule, adecumearm; malnNnance perlarmed. and making as ?aon.t coverage. Ibu"1'.1 W loss payee and avo.O.rel insured as headed reveira, You are aa. responsible for ell scanting Costa I.h as requested by Lusio,ya, mush give F ire Geed evidence M th, loatance. gas antl oil. Lou., still pranida one service(s). II any, Williford In Me Leaao, Services u(NM una. Mere corms d a ..parer..,,-all The YOU -11horim F- Credit on you, behalf. I-— and ima.ee cbecaa mer.laclwer wilt Invalidate womanly coverage ah part shamed by A last. or draft, end wale or release any claim undo, the msu.ral felatda to r.1. -.tell ft Vehicle as required by the manulacWrer, Hobeya ownership of the Vehdla. YHU also assign to Hoar, arty Mher (Sae Lesaor Sarvicea on Me 1— m kase) -.- p,uceade related to his lease or Halals Interest In M. Vehicle. to. DAMAGE REPAIR You arc oaundnokl..r reports dl All Damages If You or Ford Claim Noriin a refund far amounts pad to third paniee mr am, h an a. a -.1 of normal weer and use TN. .Pena - IWe, insurance, service canbacta, or am/ other .moum Pala m a third parry but are not tm led to. those dodeseary to return Ina Vehicle m is pre imWded b the Gras. Capal¢ad Coal of Mks does. You must pay tome accident candinom, including repairs to Eelerla Susan, Metal and Holder Me shifts uncurl of me refund and You authorise the holder to Plastic Componenle. and to Vehicle Safety Systems, Inclulloo I, suboacl to AIUN nom IM amoum you owe under INS kase. bag. Seat bell and bumper system components. Raplacamenl of SNet Metal must N means with Orignal Equipment Manulacturer _ LESSOR IS NOT PROVIDING VEHICLE Shawl M.el. All other reps;. most be made with Onginel Equipment INSURANCE OR LIABILITY INSURANCE Manufacturer palls or those at equal quality. Obcuea this raquill hit with Your ina nine company prb, fo signing a collision .pair watt- If YoV,IBNrohrun the Vehicle in, . change he garage Wdo Wn of IN male or belura eutho,ding any collision repair work. ' Vahicla I. a aisle what Ford Credit has esAbgsad miners, aubmders - ';.'airy aawands, IIm. groat. than Inoue hated aba ,far badly wool a II You have hat had the raps. -do before IN Vehicle is returned el Me N.01 and Prdpery damage insumrrm, Y -1 insure the Vehicle and achreased end of this Wall. Mu we pay led eNlmated toss, ol.such repairs, Me harder al IN higher mrl.um limns eelabInned by Ford C,ed)l. wsen0 Me repairs Me rot nude poor b FMlder. re)e of in. Yelocle. ENOING YO UR LEASE 20. TERMINATION This base will terminate (and) upon (a) Me end of the 24. VOLUNTARY EARLY TERMINATION AND RETURN THE VEHICLE You brn rat Ins kase, (h) W return or M. Val to Lessor, and Ic) the pay- may ter- IM. base ..M. a You are net in aalault by ra,umirg IN marl pry You 01 ay amoum. owed under Ms lease. Fall Creail may, can. Venitle to Leloo, and paying ft folbvnnp: (a) an any loners ik t We of cM Via kase N YOU Nuoll. 92(10, Plus (b) IN diserehce. a .1,, betwoen Is Unpaid Adlusled Captained Coll and IN Vahde's Fair Market Wrasull Value, plus (c) 21, RETURN OF VEHICLE If You do ,IM dry IN Vehicle.. base end mu all abler amounts than sue winter MW lease. You war newer pay morn Iran must relurn X to Lessor .mess Fad Calaii specifies en.ner place. II You W sum of tit remaining Mere d Jesse payments, on. any excess wear tau to relurn W vshtc e, You mnl whbmu, Id pay line Monday payments and use and mileage charges, and all 0", amounts than due anon, cob plus Mher MWNgee to Fad C.ail, solving amounts payable undi vase. default. Pay!Nnl of allies a.oursa will not lbw You to kaop ft vehicle, VOLUNTARY EARLY TERMINATION AND PURCHASE THE VEHICLE 22, STANDARDS FOR EXCESS WEAR AND USE You ere tesponsi so b, all YOU May pU.hMe the Vehicle from Leseer at any are for the a= XI the rep.. to IN Vialed that an Nt ft wall of name wee and use. nomMern, payments, boa only unnamed Rent Che,gps, PNs ft punohase These hapal.'-.de, but ere MI em h. W, tare necessary to raps, or option Now"all amp, amounts than do, under this base. ,epla,w: I., Tuas well are Amlaltl.d, -.%or - W. tan IIS Inch dremaining onto M airy Nout(b) Ebctlksl of LsaehentcM detect., Unpaid Admstaa Capdafised Cass a rldVrd on a all payment due dale. maMUnptiors; (d) Glees, Parted, Body Panels, TH. and GRII Walk In. N la wiculald e by reducing the AdI.I. CapiAeaad Coat each month by n brtlun, hooluocnwd, chipped, aaebned, peed .racaeM, . it appik IN d,.Mmca aenvsen the Bea Monthly Payment and Me pan & Me Rant able. tla . rurna ; (d) Imeaft, nps, stains. burns o, - areas; rural Charges had in Mal motion an an eausdM beats. Rat l chalyas r (.) Ap Do.." which would bas covered by -I- or tamp. umlae earned whom der. L....1 or Ford Credit .11 p-de You with a wild., whata, or ml a- i annually in farce. ,ill.- dl Ina wouaris me- upon you,reaueal. R.Pl vment of Shoal Metal must be made will Original Equipment Menubel.se Slain Morel. All other, repairs ms made with Fair Melkef ithma to W- or Your option, will be: (at an mount Original EgWpmahl Ma-Wdh,rer pane or male of equal q ry agreed tor by you rand the Lessor, or (b) to , which could on ,,,.,ad Your use or repair of the vehldle must nut mvatd3l, any -ally, sl me wholesab sad of the Vehicle, se erermine0 try . mole..mnal appmisel obtained by You at Your expeae endin to days n e You nave nor has the repair. med. melon, Imo Velir Je is nnumeo to Ma on 'mm an l,demnaenl Mod parry eg.W.1 . to For. Cra al, ., m scledulea ono of Mis lease, You wm pay the estimated costs . such (.) no, t"nouMd by agreement a apolitical, the rot amount nsc n,co replan, seen N Me mpsrs are nor mad. prior 1. HalNrS sale Of oy Fora Credit upon Ile sale of to Vehicle el wh.asalB. Me VemGa ,Too ,e contact -1 Last at 1-8(0.12]-TXDX or www.mmcradN..ttn it 23. ODOMETER STATEMENT Federal law requires You ro aortrFlale a able- You nave any quesfwns rey.nan. mrminabg Your Red Carpel Lees.. msM of the Vehicles m+bege al all orb d Nis Inane. DEFAULT AND L OSS OF VEHICLE 2E. DEFAULT You wA be in deMull it (a) You tail W make any Pay-' when deHUX, from an inaepandent Mull Parry agrosi m Fad CloNLY.u most Oue, or fbi a N-rdicy, peefien Ili triad by or against You, a ill any gav- flat, prof au ea,_, Including mucam so anornays ben, payable by mmeNS auproly so ass W Vahkta and does hM promptly and V - Ford Crsat to obowl. hold end .ell the Vehiob, weaa amounts due and Mibrdepy release Me Vahde od You. or (dl Vau havs, p..1dea false or Mis. enforce Hdldnr'a rgvu under cols base. You authorise Ford Credal to wn- be0ingmumnaliNrm.eon wan."yng b, ...mass, a, is) You fail m car Yourinothance and apply will, proceaas m Your W,geach. keep my star ag.emem in this base. 26. LOSS OR DESTRUCTION OF VEHICLE If IN V.ucb a stolen or It You ale in dolit Ford Cheat may tercel 'his mesa. Ake Ntk ire dereb yed, Ydu wNl pull b Ford C,ealt. (a) out Unpaid Adjusted Capiloasd VaMCb and sea N at a Pudic o1 pmatn Bare . lid. also glue Para Credit tit Call, plus ID) ell her amounts Ines aua under Iris base, mlnus (ct any rig. W, go m your popery la peauddly retake tN Vehrcla Evan N Fob nce proceeds carolled by Ford Galt. Geo Vyeiuer: h You had in G.dn reake, IN tknidp. You most sWI pay al once: (a) the pNrence, it epee Me insurance roomed amen This base orb Fatl Geer receives Ina erry, ron-in Ire Unpad ".I- Caplalrs,d Cos, old the Value wrill, Proceed. you wire pay id Fund Creaid: An any, pear due -My lees. could. W.Wed.I Me sal.. the Vemcle. plug( o) at on. inwunla than payments. also, M). ft amoum of the BpPl'ICade isurarce dWmnWu, due I- lme lease. The value which rould IN -(dad It IN sake It the Plus (C) all war amouMS than may .ter this lease. Filed M Ire Vehicle Va.". m mar nNol a' (a) me ism amount received by Fad Cradl m n Ford Credm rlwnee IN aepropriale ammm aNio You upon Me rose or the y.hmb el wndir. W. a (b) as natereum.a by A pm- ere ralcom0the tot the scnadolaa monthly paymeMe. Wani.0 ao.alsal obtained by mu or mar c.,W- warm 10 days from ACDRIONAL I NFORMATION 27. ASSIGNMENT AND ADMINISTRATION W Ion You that Lessor sign Mrs to insuraae. If Mule Is no Co-lasaee. Fool Cnadn will ...ol a .aacn. less, Leaser will esaigm a to Ho10.. Ford Crept or subarm,le will able repdpamMa asigNuid by your .slate who agrees in wdV, to Pled. swlivil Ar mid Ieaae. You must than pay all a-- sue ..or Mira Ines. farm Va., ride gelbns n. covens. by Me m io nw. w Fad Clear. 31. INDEMNITY You win indennay all rod he mlese Lenaot Ford Grace am 11 Ford Credt b of the Haber of this lees,, Holder has adecomwo Fam Howe, And mob assigns from any mss or damage ro ill vehicle all its Credit as is pmt. As ageml ATM Holder. Ford Credal he, IN power as all nd sod from, au claims, lasses, Injuries, expense. and wan ,wiled pis Hostels behell Id admiNeter, ammme, and emend Ind Wass, N LAasa to IN I. hoult once, d, oldium W the Vehicle. You will promptly pay has agreea 1.1" or -.b IN Venice, oath arty inAn at per- r all erne antl tkketa Impoawy an IN Vahicla or its dn- Itlbu cb not pay, Will arty dolar Mrvica you wit cook wry 1. no Tessa Ini these aerviius You well refmbw,e Fwd Chaalt ratio pay a 320 edminumn ion He, unless chained" by law. far every sun fine, nodal, or p...m, that must N paid a, TAXES You will pmnptly pay lip Here, charges, antl bxea miumg to IN m Your cut Hale dry Valbb (Ad.pe Ili I-.., w NWdeln income ...), you all pay Wee amount, even a may are aaulul as., Naas and. 32 SECURITY DEPOSIT mu, -My unworn, may N used by coin Credit Id bay are amount. W1Yw forro pay under this L.Are, mU will rot receive 29. TITLING The Vela.-le will N lined to the name or Nobel ilvnM regis. any .areal, prolog or In. ewrkny. on your s.wrify deppaal,). el in, WhM l an d od.d by Ford tta k, You wel pry nit ncwse, alts and re9lslration costa. 33. GENERAL Escepr are c,.-. crowned by M. new of 1N slat. were You restart. IN law Mat mM aPPIV In Pvr lase is me law of the state where 30. LIFE INSURANCE Il Fatl D.111 receives the benefits old under airy loo Ina Lessor's pace of Nsmass Is, its sr, bon dm In aom of con lees,. l Ilu'll" 11cnbed on Ire 1-1. lice. Ins lease w,ll continue ll m- s son bw aces not allow any or the agreements or ma mdse. Ma ones .... I Co-Lease.. Any Co-Lesaee will pay wren due all undome rot pea my era rm, allowed will fan tad. TN hard of IMS lase wa all be goal. ?t'W4 FC - I9X06-P .01 ad NOTICE: SEE OTHER SIDE FOR IMPORTANT INFORMATION Prarlws aamons may NOT N on- V E R I F I C A T I O N I, Donald S. Mazzotta, Esquire, state that I am not a party to the action but that at the request of the Plaintiff, and based upon knowledge, information, records, and documents supplied to me by the Plaintiff, the averments set forth in the Civil Action Complaint are true. A Verification executed by the Plaintiff can be supplied at time of trial or upon request. I understand that false statements,herei.n are made subject to the penalties of 18 Pa. C.S. §4904 relating/ to unsworn falsification to authorities. r ' ?` ?, Date: { :77 t \J -4 i IN IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FORD MOTOR CREDIT COMPANY : Civil Action - Law No: 05-1771 Civil Term Plaintiff VS. DAVID L. KIRBY Defendant ANSWER TO COMPLAINT NOW comes the Defendant, David L. Kirby, by and through his attorney, H. Anthony Adams and sets forth the following: 1. Admitted 2. Admitted 3. Admitted, it is noted however that Interstate Ford, Inc. of Shippensburg, Pennsylvania is the lessor. 4. Denied, the lease was entered into on the assurance that the vehicle was of sufficient strength, size and rating to pull a race car that was being sponsored by Interstate Ford. The vehicle did not meet the stated specification. 5. Denied, Plaintiff did not notify the Defendant as required. 6. Denied, Defendant is without information or knowledge sufficient to form a belief as to the truth of the matter averred. By way of further answer no notice of auction or accounting after auction was given to Defendant. 7. Denied, Plaintiff is without information or knowledge sufficient to form a belief as to the truth of the matter averred. By way of further answer no notice of auction or accounting after auction was given to Defendant. 8. Denied, Plaintiff is not entitled to any interest on account since Plaintiff is not entitled to recovery. 9. Denied, Defendant is without information or knowledge sufficient to form a belief as to the truth of the matter averred. By way of further answer no notice of auction or accounting after auction was given to Defendant. 10. Denied, the lease does not set forth a standard amount for attorney's fee and further Defendant does not have any obligation to Plaintiff and is not in default therefore no attorneys fees are owed. NEW MATTER 11. The Defendant entered into the lease having been assured that the 2001 F150 could tow his race car. 12. Defendant was, assured by the Lessor, Interstate Ford sales agent, Will Hudson that the F-150 was "more than enough" truck even though Defendant had asked to lease an F-250. 13. Defendant was informed that Lessor, Interstate Ford, would sponsor the Defendant's racing program. 14. The 2001 Ford F150 was not fit for the specific purpose expressed by Defendant. 15. The Lessor refused after frequent demand to make any payment toward the expenses or sponsorship of Defendant's racing program. 16. Defendant voluntarily returned the vehicle to the Lessor. 17. The Lessor did not fulfill the requirements of its contract with Defendant. 18. There was a failure by Lessor to give to Defendant all the required consideration. Wherefore, Defendants prays Your Honorable Court enter judgment in his favor and against the Plaintiff. Respectfully, H. Anthony Adams Attorney for Defendant 49 West Orange Street Shippensburg, Pa. 17257 Supreme Court ID # 25502 VERIFICATION I verify that the statements made in this answer are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. The Defendant was not available to sign this verification and a substitute verification will be filed. Date: 407 David L. Kirby +_ tl I? Y !R : iJ r- "J ?jC7 a ?-'t5) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FORD MOTOR CREDIT COMPANY, Plaintiff, vs DAVID L. KIRBY, Defendant. NO. 05-1771 CIVIL TERM ISSUE NUMBER: TYPE OF PLEADING: REPLY TO NEW MATTER CODE - 011 ASSUMPSIT FILED ON BEHALF OF: Plaintiff, FORD MOTOR CREDIT COMPANY COUNSEL OF RECORD FOR THIS PARTY: Donald S. Mazzotta, ESQUIRE Pa. I.D. 411461 METZ LEWIS, LLC 11 Stanwix Street, 18'' Floor Pittsburgh, PA 15222 (412) 918-1186 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FORD MOTOR CREDIT COMPANY, Plaintiff, vs DAVID L. KIRBY, Defendant. No. 05-1771 CIVIL TERM REPLY TO NEW MATTER AND NOW, COMES the Plaintiff, Ford Motor Credit Company, by its attorneys, Donald S. Mazzotta, Esquire and Metz Lewis, LLC, and files the Reply to Defendant's New Matter: 11. Denied. After reasonable investigation, the Plaintiff cannot ascertain the truth or falsity of this statement and the same is therefore denied and strict proof demanded at the time of trial. By way of further response, the Lease marked as Exhibit "A" attached to Plaintiff's complaint contains an integration/modification clause that states "this lease sets forth all of the agreements of Lessor and You for the lease of the vehicle. There is no other agreement. Any change in this lease must in writing and signed by You and Ford Credit." 12. Denied. After reasonable investigation, Plaintiff is unable to ascertain the truth, falsity or meaning of this statement, and the same is therefore denied. By way of further reply see reply in Paragraph 11. 13. Denied. After reasonable investigation, the Plaintiff cannot ascertain the truth or falsity of this statement and the same is therefore denied and strict proof demanded at the time of trial. By way of further reply see reply in Paragraph 11. 14. Denied. After reasonable investigation, the Plaintiff cannot ascertain the truth or falsity of this statement and the same is therefore denied and strict proof demanded at the time of trial. By way of further reply see reply in Paragraph 11. 15. Denied. After reasonable investigation, the Pla:n=iff cannot ascertain the truth or falsity of this statement and the same is therefore denied and strict proof demanded at the time of trial. By way of further reply see reply in Paragraph 11. 16. Admitted. 17. Denied. After reasonable investigation, the Plaintiff cannot ascertain the truth or falsity of this statement and the same is therefore denied and strict proof demanded at the time of trial. By way of further reply see reply in Paragraph 11. 18. Denied. After reasonable investigation, the Plaintiff cannot ascertain the truth or falsity of this statement and the same is therefore denied and strict proof demanded at the time of trial. By way of further reply see reply in Paragraph 11. I WHEREFORE, Plaintiff requests that Defendant's New Matter be dismissed and judgment entered in favor of Plaintiff on Plaintiff's Complaint and against the Defendant. MET4n, LEWIS, BY: Doal S.l?? Az ,ta, Esquire Attorneys aintiff CERTIFICATE OF SERVICE i hereby certify that a true and correct copy of the foregoing Reply to New Matter was served, upon the following, this r;ft'k day of May 2005, via United States Mail, first class, postage prepaid, addressed as follows: H. Anthony Adams 49 West Orange Street, Suite 3 Shippensburg, PA 17527 Qonald S. W4 tka, Esquire Attorneys for p ntiff _ ? II ..:Y ?_? . ? i .? rj 1 `r SHERIFF'S RETURN - REGULAR CASE NO: 2005-01771 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND FORD MOTOR CREDIT COMPANY VS KIRBY DAVID L RONALD HOOVER , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE KIRBY DA was served upon the DEFENDANT , at 1400:00 HOURS, on the 11th day of April , 2005 at 1326 RITNER HIGHWAY SHIPPENSBURG, PA 17257 DAVID L KIRBY by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs Docketing 18.00 Service 14.80 Affidavit .00 Surcharge 10.00 .00 42.80 Sworn and Subscribed to before w me this %i` day of J A.D. So Answers: R. Thomas Kline 04/12/2005 DONALD MAZZOTTA By: Deputy Sheriff rothonotary FORD MOTOR CREDIT COMPANY Plaintiff, VS. DAVID L. KIRBY Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-1771 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: Donald s. Mazzotta, Esq , counsel for the plaintiff/defendant 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$?_10,062.39 plus interest The counterclaim of the defendant in the action is $0.00 The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: H.Anthony Adams, Es.a. WHEREFORE, your petitioner prays your whom the case shall be submitted. Court to appoint three (3) arbitrators to ORDER OF d" IT. /Fiazzotta, Esquire AND NOW, . 200 1 , in consideration of the foregoing petition, Esq., and Esq., and Esq., are appointed arbitrators in the above captioned action (or actions) as prayed for. By the Court, EDGAR B. BAYLEY x O d 0 1 „N FORD MOTOR CREDIT COMPANY vs. Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-1771 20 DAVID L. KIRBY Defendant. 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: Donald s. Mazzotta, Esq counsel for the plaintiff/defendant 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 $ 10,062.39 plus interest The counterclaim of the defendant in the action is $0.00 The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: H.Anthonv A WHEREFORE, your petitioner prays your whom the case shall be submitted. ORDER OF Court to appoint three (3) arbitrators to d` IT. /flazzotta, Esquire AND NOW, A011 13 , 200 , in consideration of the foregoing petition, Esq., and Esq., an;4(2:0-16i Esq., are appointed arbitrators in the a e captioned action ( ctions) as prayed for. By Court, AYL , a V `%4t Y _ Poe PA! fit. cop Wool in -jZ O d F f h Fovcl / Go Q)A Co. Plaintiff D;aJ L Krv?j Defendant In The Court of Common Pleas of Cumberland County, Pennsylvania No. Civil Action - Law. Oath We do solemnly swear (or affirm) that we will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that we will discharge the duties of our office with fi14 &&dRm Q "Sm e Signa i Name (Chairnm) 5cl Law 0 x(trao )- Address '? M Name Z -1 2 3(00 Jdhhsun z? Law Firm 3o c MaYr-4 S} . Address tW 110q:> ? e--eA 1-1643 city, zip city, zip X> I 2 Ic 0-, 3C-yu `/ Name 99'• 37779147 oyor t%,er' 3e"y Law Firm Yg s ,? s+. Address C *Ank M 17-013 city, zip Award We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following ward: (Note: If damages for delay are awarded, they shall be separately stated.) r_ 1wc 7 A ? v . Arbitrator, dissents. (Insert name if applicable.) Date of Hearing: ?-400 J7 2 _ (Chaim) Date of Award: Aoj 2Z-7 . Notice of Entry of A d Now, the _ day of NO . , 20_Ql_, at Ato , A .M., the above award was entered upon the docket and notice thereof given by mail to the parties or their attorneys. Arbitrators' mpensation t e paid upon appeal: $ 35b. 00 r' By: rothonotary Deputy i Plaintiff "Al Defendant In The Court of Common Pleas of Cumberland County, Pennsylvania No.`z- Civil Action - Law. Oath We do solemnly swear (or affirm) that we will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that we will discharge the duties of our office y?ith fidelity. -- , `Signature Name (Chairman) Law Firm Address Sign's/ Name J,) hhsul Law Firm a t N la.yK.4,s} . , 2 Address City, f zip city, Zip -- r 01 09 # 11431 Award Sign- e \D 12 t< 0 ? 3oier2 `/ Name _?g'- 377`?ee7 Oyrer Law Firm `l It S Address C.,,- (TI C- f Ac ! 7-0 13 City, zip # /baaa We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following ward: (Note: , If damages for delay are awarded, they shall be separately stated.) ?=u? tortedissents. (Insert name if applicable. Ar, rtra z 4[Z Date of Hearing:' i (Chairman) Date of Award: 2 Nov Notice of Entry of A d Now, the _ day of py. • 20_D7_, at • A4o , A M., the above award was entered upon the docket and notice thereof given by mail to the parties or their attorneys. Arbitrators' compensation tae paid upon appeal: $ 35b. 00 c _ By: rothonotary Deputy cooo M?,,afi{a? ? wol, 7.5;j proe IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Ford Motor Credit Co. Plaintiff vs David L. Kirby Defendant File No. 05-1771 Civil Term NOTICE OF APPEAL FROM AWARD OF BOARD OF ARBITRATORS TO THE PROTHONOTARY: Notice is given that David L. Kirby, Defendant appeals from board of arbitrators entered in this case on November 7, 2007. A jury trial IS NOT demanded. I hereby certify that the compensation of the arbitrators has been paid. 7H. ANTHONY ADAMS, ESQ 49 West Orange Street Suite 3 Shippensburg, PA 17257 (717) 532-3270 25502 cr) ti wy..9 6 PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: ? for JURY trial at the next term of civil court. Q for trial without a jury. ------------------------------------------------------------------------------------------------------------------ CAPTION OF CASE (entire caption must be stated in full) (check one) (other) Ford Motor Credit Co. (Plaintiff) VS. The trial list will be called on and Trials commence on David L. Kirby (Defendant) Pretrials will be held on vs. (Briefs are due S days before pretrials No. 05-1771 , Civil Term Indicate the attorney who will try case for the party who files this praecipe: Alan R. Mege, Esq. Indicate trial counsel for other parties if known: H. Anthony Adams, Esquire This case is ready for trial. Signed: 4 Print Name: Date: 1/10/08 Attorney for: ? Civil Action - Law Appeal from arbitration Esquire -44 P ? 71 7k o P 'O 9A w r o FORD MOTOR CREDIT COMPANY, Plaintiff V. DAVID L. KIRBY, Defendant ORDER OF COURT AND NOW, this 4`h day of February, 2008, a pretrial conference in the above matter is scheduled for Thursday, March 20, 2008, at 1:30 p.m., in chambers of the undersigned judge, Cumberland County Courthouse, Carlisle, Pennsylvania. Pretrial memoranda shall be submitted by counsel in accordance with C.C.R.P. 212-4, at least five days prior to the pretrial conference. A NONJURY TRIAL in the above matter is scheduled for Monday, April 28, 2008, at 9:30 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. ? Donald S. Mazzotta, Esq. Metz Lewis, LLC 11 Stanwix Street, 18th Floor Pittsburgh, PA 15222 Attorney for Plaintiff ?H. Anthony Adams, Esq. 49 West Orange Street Suite 3 Shippensburg, PA 17257 Attorney for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-1771 CIVIL TERM BY THE COURT, 4 J,Wesley Oler Jr., J. o0P 02-g ma lck c2lrlos 9? :QI WV 5- 83A 8GOZ hi It 3c .:: WIII jo COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FORD MOTOR CREDIT COMPANY, Plaintiff No. 05-1771- CIVIL TERM VS. CIVIL ACTION DAVID L. KIRBY, Defendant PRAECIPE FOR ENTRY OF APPEARANCE TO THE CLERK OF SAID COURT: Kindly enter my appearance on behalf of the Plaintiff in the above captioned matter. By: ege, Es ire Atty. I.D. #8 8 Attorney for Plaintiff P.O. Box 1426 Bethlehem, PA 18016 (610) 954-5393 P t -? cc ( 7 FORD MOTOR CREDIT IN THE COURT OF COMMON PLEAS OF COMPANY, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. CIVIL ACTION - LAW DAVID L. KIRBY, Defendant NO. 05-1771 CIVIL TERM ORDER OF COURT AND NOW, this 20th day of March, 2008, upon agreement of counsel, the pretrial conference and nonjury trial previously scheduled in the above matter are hereby continued generally. Counsel is directed to notify the court if a hearing is required or a settlement is reached. ,""Alan R. Mege, Esq. P.O. Box 1426 70 East Broad Street Bethlehem, PA 18016 Attorney for Plaintiff ? H. Anthony Adams, Esq. 49 West Orange Street Suite 3 Shippensburg, PA 17257 Attorney for Defendant rc Pi-es mat LC 3[20/0$ BY THE COURT, A, / f ?{ t J. esley Oler, Jr., J. P I J oz NVH aul COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FORD MOTOR CREDIT COMPANY Plaintiff CODE 011 - ASSUMPSIT No. 05-1771- Civil Term VS. DAVID L. KIRBY, Defendant CIVIL ACTION PLAINTIFF'S MOTION TO ENFORCE SETTLEMENT AGREEMENT Plaintiff files the within motion to enforce settlement agreement, and in support thereof states the following: 1. On March 7, 2008, counsel for Defendant contacted counsel for Plaintiff through electronic mail with an offer of settlement. A true and correct copy of the e-mail is attached hereto as Exhibit "A". 2. On or about March 8, 2008 Plaintiff accepted the settlement offer via reply to counsel's original e-mail. 3. On March 11, 2008 Plaintiff sent a proposed Stipulation and proposed Order to counsel for Defendant via reply to counsel's original e-mail. 4. Plaintiff has tried numerous times to follow-up on the status of the Stipulation, and has not received any electronic mail or telephonic replies. 5. As of March 31, 2008, Plaintiff has not received any payment, reply, or executed Stipulation. 6. Judge Oler, Jr. has ruled upon other issues in this matter. 7. Concurrence of Defendant was sought, and no response was received. WHEREFORE, Plaintiff respectfully request that the Court enforce the terms of terms of the settlement agreement and Order Defendant to make a lump sum payment of $4,500.00 within thirty (30) days and to reimburse Plaintiff in the amount of $100.00 for preparation and presentation of the within motion to enforce. BY: - e, s re Atty. I.D. #8 8 Attorney for Plaintiff Juno Email on the Web Page 1 of 1 VAI J U N 0 &)&/ on the ftt) Prim M.ggSagS J Close From : "H Anthony Adams" <htadamslaw@embargmail.com> To : <AlanM Esq@juno.com> Subject : Ford vs. Kirby Cumberland Date : Fri, Mar 07, 2008 10:52 AM I am counsel for David Kirby. Although he doesn't have the money at the present time (will need' a loan) would your client accept $4,500.00 as settlement in this matter ? CONFIDENTIALITY NOTICE: The above communication is for the personal use ofthe intended recipient(s) only. This message may be an attorney-client communication and as such privileged and confidential. Ifyou are not an intended recipient, you may not review, preserve, copy or distribute this message. Unauthorized use, disclosure or distribution is prohibited and may be unlawful. Ifyou are not an intended recipient, or Ifyou believe that you have received it in error, please reply to the sender that you have received the message in error, and then delete it. Thank you. OA Iw http://webmaila.juno.com/webmail/new/8?block=l &msgList=00002CWO:0017oMIc00003... 3/7/2008 COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FORD MOTOR CREDIT COMPANY Plaintiff VS. DAVID L. KIRBY, Defendant CODE 011 - ASSUMPSIT No. 05-1771- Civil Term CIVIL ACTION CERTIFICATE OF SERVICE I, Alan R. Mege, Esquire, hereby certify that on March 31, 2008, I served a true correct copy of Plaintiffs Motion to Enforce Settlement Agreement, Brief in Support of and proposed Order, by mailing same, first class, postage prepaid to: H. Anthony Adams, Esquire, 49 West Orange Street, Suite 3, Shippensburg, PA 17257. By: A ege, Es e y. I.D. #81 Attorney for laintiff P.O. Box 1426 70 East Broad St. Bethlehem, PA 18016-1426 COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FORD MOTOR CREDIT COMPANY CODE 011 - ASSUMPSIT Plaintiff No. 05-1771- Civil Term VS. : CIVIL ACTION DAVID L. KIRBY, Defendant PLAINTIFF'S BRIEF IN SUPPORT OF PLAINTIFF'S MOTION TO ENFORCE SETTLEMENT AGREEMENT Plaintiff, by and through it's counsel, Alan R. Mege, Esq., files the within Brief in support of Plaintiff's Motion to Enforce Settlement Agreement, as follows: 1. STATEMENT OF FACTS/PROCEDURAL HISTORY On March 7, 2008, the counsel for Defendant contacted counsel for Plaintiff through electronic mail with an offer of settlement. A true and correct copy of the electronic mail is attached to Plaintiff's Motion as Exhibit "A". On or about March 8, 2008 Plaintiff accepted the settlement offer. On March 11, 2008 Plaintiff sent a Stipulation and proposed Order to counsel for Defendant. As of March 31, 2008, Plaintiff has not received any payment, reply, or executed Stipulation. H. QUESTION PRESENTED A. Should the Court enforce the settlement agreement reached by the parties against the Defendant and require the Defendant to make the agreed upon monthly payments? Suggested Answer: YES III. ARGUMENT The Court should enforce the settlement agreement reached by the parties against the Defendant and require the Defendant to make the agreed upon lump sum payments. The proper way in which to enforce a settlement agreement is by motion to the court. Genviva v. Frisk, 725 A.2d 1209 (Pa. 1999). The parties in the above matter, negotiated a settlement. Pursuant to the settlement, Defendant was to pay Plaintiff a lump sum payment of $4,500.00. As of March 31, 2008 Defendant has failed to make payments or execute the Stipulation regarding same. As the parties had negotiated a settlement agreement, the court should enforce same. Where the essential terms of a settlement agreement have been negotiated, the fact that they have not formalized the agreement in writing does not prevent the enforcement of the agreement. Mazzella v. Koken, 739 A.2d 531 (Pa. 1999). Enforcement of settlement agreements further the public policy of entering into such agreements, expeditious termination of cases, lower the costs expended by parties, and act as releases for future liability issues. Kramer v. Schaeffer, 751 A.2d 241 (Pa. Super 2000). The same public policy concerns are present in this case. In order to effectuate the settlement of the parties, it is proper for the Court to Order the Prothonotary to enter judgment and Order the Defendant to make the lump IV. CONCLUSION WHEREFORE, Plaintiff respectfully request that the Court grant its' Motion, enforce the settlement agreement of the parties, and award counsel fees. By: iege, E ire Atty. I.D. #8 Attorney for Plaintiff PO Box 1426 Bethlehem, PA 18016-1426 (610) 954-5393 co FORD MOTOR CREDIT IN THE COURT OF COMMON PLEAS OF COMPANY, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. CIVIL ACTION - LAW DAVID L. KIRBY, Defendant NO. 05-1771 CIVIL TERM ORDER OF COURT AND NOW, this 10th day of April, 2008, upon consideration of Plaintiffs Motion To Enforce Settlement Agreement, a Rule is hereby issued upon Defendant to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. BY THE COURT, J.(Wesley Oler,Uf., J. ?Alan R. Mege, Esq. P.O. Box 1426 70 East Broad Street Bethlehem, PA 18016 Attorney for Plaintiff ,ZH. Anthony Adams, Esq. 49 West Orange Street Suite 3 Shippensburg, PA 17257 Attorney for Defendant re 1....G»I ES rn?( C i7A o v- `e4 r 1i ?0 COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FORD MOTOR CREDIT COMPANY CODE Ol l - ASSUMPSIT Plaintiff No. 05-1771- Civil Term VS. DAVID L. KIRBY, Defendant CIVIL ACTION STIPULATION AND NOW, this 17t' day of April, 2008, it is hereby stipulated and agreed by and between the parties: 1. The parties agree that Plaintiff will accept as settlement in full, the amount of $4,500.00 paid as set out below. 2. The parties agree that the Defendant shall make a lump sum payment of $3,000.00 to be paid to Plaintiff no later than April 30, 2008. 3. The parties agree that the Defendant shall make a lump sum payment of $1,500.00 to be paid to Plaintiff no later than May 31, 2008. 4. The parties agree that payments shall be made payable to "Donald Mazzotta, atty for Ford", and mailed, to Law Offices of Donald S. Mazzotta, 700 Fifth Avenue, 2°a Floor, Pittsburgh, PA 15219. 5. The Defendant stipulates to a judgment being entered in favor of Plaintiff and against Defendant in the amount of $10,062.39 plus costs and interest from March 23, 2005, minus any payments made, should Defendant default on the aforementioned monthly payments and not cure same within twenty (20) days after notice of said default to Defendant's Counsel. 6. Upon completion of the above-referenced payments, barring an uncured -0- default, Plaintiff shall forward to Defendant for filing, a fully executed Praecipe to Dismiss with Prejudice. IN WITNESS WHEREOF and intending to be legally bound, the parties hereto have set their hands and seals the day and year first above written. David L. Kirby H. nthony dams, Esq. Attorney for David Kirby IL Ford for re t ompa y Al . Mege, Esq. Attorney for For otor Credit 2 cam'... ? .--? t''. ~tttr ? -c? ?:,? ??? ?- r x ? ?? " ` ?- ;?? ?-, ?-, ::?? Y .,.? ? ?: ?. . ?i--? i. ? { ?? f `. C? MAY ] 620001V r COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FORD MOTOR CREDIT COMPANY CODE 011 - ASSUMPSIT Plaintiff No. 05-1771- Civil Term VS. CIVIL ACTION DAVID L. KIRBY, Defendant ORDER AND NOW, to wit, this 4 `1^ day of ti? , 2008, the Stipulation of the parties dated April 17, 2008 is hereby approved and made an Order of Court in the above-captioned matter. BY THE COURT: J. I --, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION FORD MOTOR CREDIT COMPANY Plaintiff, No. 05-1771 Type of Pleading: vs. DAVID L. KIRBY PRAECIPE TO DISMISS WITH PREJUDICE Filed on behalf of: Defendant. ) PLAINTIFF Counsel of Record for this Party: DONALD S. MAZZOTTA, ESQUIRE Pa. I.D. #11461 DONALD S. MAZZOTTA, ESQ. 24 Woodville Avenue Pittsburgh, PA 15220 Phdhe (412) 471-0300 Fax (412) 471-3476 Dmazzotta@mazzottalaw.com IN THE COURT OF COMMON PLEAS OF &MBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION FORD MOTOR CREDIT COMPANY Plaintiff, vs DAVID L. KIRBY Defendant. No. 05-1771 PRAECIPE TO DISMISS WITH PREJUDICE TO: PROTHONOTARY OF CUMBERLAND COUNTY SIR: Please dismiss the judgment with prejudice on this matter and mark the docket accordingly. By: llUNALIJ'S. ZZOTTA, Attorney for Plaintiff PA ID # 11461 24 Woodville Avenue Pittsburgh, PA 15220 Phone (412) 471-0300 Fax (412) 471-3467 Dmazzotta@mazzottalaw.com ? ? "?'? ? .. ? .sue.. 1 V^? ? ?...?c+ ??, , . U" ? ?5 ?- S ?? ? yam, K ?, ? ? ?. .. ?,? ?i