HomeMy WebLinkAbout05-3151
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COMMONWEALTH OF PENNSYLVANIA
COURT OF COMMON PLEAS
Judicial District. County Of tu.vnloerl~
NOTICE OF APPEAL
FROM
DISTRICT JUSTICE JUDGMENT
COMMON PLEAS No. ~ -j/$'r (JlU~/1Ffl.tv')
NOTICE OF APPEAL
Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on
the date and in the case referenced below.
ZIP CODE
K<;:..
This block will be signed QNL Y when this notation is required under Pa.
RCP,D,J, No, 10088,
This Notice of Appeal, when received by the District Justice, will operate as a before a District Justice, A COMPLAINT MUST BE FILED within twenty
SUPERSEDEAS to the judgment for possession in this case.
(20) days after filing the NOTICE of APPEAL.
Sgtlafu~ of Proll1onolary or Depuly
PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE
(This section of form to be used ONL Y when appellant was DEFENDANT (see Pa.R.CPD,J, No, 1001(7) in action before District Justice, IF
NOT USED, detach from copy of notice of appeal to be served upon appellee,
PRAECIPE: To Prothonotary
Enter rule upon
Cro;o
A, De.: k\, f~. appellee(s), to file a complaint In this appeal
Na(~of a"pa!a.(s)
{1; f J ~L lfg..."Y*\ithln twenty (20) days after service of rule or suffer entry of Judgment of non pros,
(Common Pleas No, (J ~ _ -::? I !;/
RULE: To
, appellee(s)
Signature of appellant attorn r agent
&.1' 0"'- L, 1\l.~ /Ilc. S-t (I"'S
Gc..f",>, I-/ulbr.....er &- l-hh:k) PC
C(al~' Dei'kl, f~_
sma of appel/ea(s) I
(1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service
of this rule upon you by personal service or by certified or registered mail.
(2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU,
(3) The date of service of this rule if service was by mail is the date of the mailing.
Date:JLWf:.. 17 ,20~
olaty or Deputy
YOU MUST INCLUDE A COPY OF THE NOTICE OF JUDGMENTfTRANSCRIPT FORM WITH THIS NOTICE OF APPEAL.
AOPC 312.02
COUR' FILE TO BE FILED WITH PROTHO~OTARY
~
PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT
(This proof of service MUST BE FILED WITHIN TEN (10) DA YS AFTER filing of the notice of appeal, Check applicable boxes)
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF
; ss
AFFIDAVIT:
I hereby (swear) (affirm) that I served
o
a copy of the Notice of Appeal, Common Pleas No,
, upon the District Justice designated the rem on
(date of selVice)
,20
o by personal service 0 by (certified) (Ieglstmed) mail,
sender's receipt attached hereto, and upon the appellee, (name) , on
, 20 0 by personal service 0 by (certified) (registered) mail,
sender's receipt attached hereto,
(SWORN) (AFFIRMED) AND SUBSCRIBED BEFORE ME
THIS DAY OF 20
SignMure of affiant
Signature of off.icilJ! before whom affidavit was made
Tille of official
My commission expires on
,20
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AOPC 312A. 02
'- ...rrv10NWEAL TH OF PENNS'
d""'~'C~UNTY OF: CUMBERLAND
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ANIA
NOTiCE O. JUDGMENTITRANSCRIPT
CIVIL CASE
PLAINTIFF: NAME ond ADDRESS
IrlEIHL, ESQ., CRAIG A -,
3464 TRINDLE ROAD
CAMP HILL, PA 17011-4436
09-3-04
MDJ N;:;m€: Hon
Addl€SS
THOMAS A. PLACEX
104 S SPORTING HILL
MECHANICSBURG, PA
RD
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VS,
T"<ohoo..(717) 761-8230
17050
DEFENDANT: NAME and ADDRESS
IBOINSKE, ,DONALD J, ETAL.
3810 HEARTHSTONE RD.
CAMPHILL,PA 17011-1425
-,
DONALD J. BOINSKE
3810 HEARTHSTONE RD.
CAMP HILL, PA 17011-1425
L
Docket No,: CV-0000025-05
Date Filed: 1/12/05
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THIS is TO ,N,OTlFY YOI,J THAT:
Judgrnent: ' , '
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"FOR. ' PT.A''I'N'rIFF
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Judgment was entered for:
(Name)
nRT'A'T. R!'lQ. f'R:&TQ II
,
Judgment was entered against: (Name)
BOTlIlR'R:1l: nOllTlIT.n .1
in the amount of $
1 1Cl1 <;'Cl on:
(Date of Judgment)
<;11 R/n<;
. .
o Defendants are jointly and severally liable,
o Damag~? will be asse,ssed on:
o This case dismissed without prejudice,
(Date & Time)
Amount otJudgment
Judgment Costs
Interest on Judgment
Attorney Fees
Total
$ L118, 09
$73.50
$ " .00
$ .00
$ 1 ,191. 59
O Amount of Judgment Subject to
Attachment/42 Pa,C,S, S 8127 $
o Portion of Judgment for physical
damages arising out of residential
lease $
Post Judgment Credits $
Post Judgment Costs $
------------
------------
Certified Judgment Total $
. ANY PARTY HAS.THE RIGHT TOA,PPEALWITHIN 30 DAXS AFTER THE ENTRY OF JUDGMENT BY FILlNGANOTICE
. ,',' .. - " ,-' - " "-'.: """, .. .' . , .--.:,,',.-.: ':. .' -.. .~,.,.. .., ,'-'... .
OF APPEAL WITH THE PROTHONOTARY/CLERK'OF THEti:iUFlTOF'c'OMMON PLEAS, CIVIL DIVISION, YOU
MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENTITRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL.
EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES. IF THE
JUDGEMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST
COME FROM THE CO\!RT OF COMMON PLEAS AND NO FURTHER PROCESS MAYBE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE,
UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE
A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGME~:\.DE!3T,OR PAYS IN FULL,
.. .' -'. -., _ . :.-:--. .,.',.- ""'If',
SETILES, OR OTHERWISE COMPLIES WITH THE JUDGMENT, " , ""',,.j ,,<:..-
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Lcertify that this isa true a d co;:r~.ct.cG~y-of:th,net:of(f"i'jnh'~ ~eedings con'tainingth~ judgment,;';;
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My commission expires first Monday of January, 2010
AOPC 315,05 DATE PRINTED:
SEAL
5/1R/n<;
3 : 43: 13 PM
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA
LAW OFFICES OF CRAIG A. DIEHL,
Plaintiff
NO, 05-3151 Civil Term
vs,
DONALD J, BOINSKE and
SUSAN V, BOINSKE,
CIVIL ACTION - LAW
Defendants
NOTICE
YOU HAVE BEEN SUED IN COURT, If you wish to defend against the claims set forth in the following
pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written
appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set
forth against you, You are warned that if you fail to do so the case may proceed without you and a judgment may be
entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim
or relief requested by the Plaintiff, You may lose money or property or other rights important to you,
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE, IF YOU DO NOT HAVE A
LAWYER 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 South Bedford Street
Carlisle, P A 17013
(717) 249-3166
NOTICIA
USTED HA SIOO DEMANDADOI A EN CORTE, Si usted deseadefenderse de las demandas que se presentan
mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la
notificacion de esta Demanda y A viso radicando personalmente 0 por medio de un abogado una comparecencia escrita
y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya, Se
Ie advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un
fallo por cualquier suma de dinero reclamada en la demanda 0 cualquier otra reclamacion 0 remedio solicitado por el
demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero 0
propiedad u otros derechos importantes para usted,
USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE, SI USTED NO
TIENE UN ABOGADO 0 NO PUEDE P AGARLE A UNO, LLAME 0 VA Y A A LA SIGUIENTE OFICINA PARA
A VERlGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA 17013
(717) 249-3166
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
LAW OFFICES OF CRAIG A DIEHL,
Plaintiff
NO, 05-3151 Civil Term
vs,
DONALD J, BOINSKE and
SUSAN V, BOINSKE,
CIVIL ACTION - LAW
Defendants
COMPLAINT
NOW COMES Plaintiff, Law Offices of Craig A Diehl, tiling this Complaint and averring
as follows:
I, Plaintiff, Law Offices of Craig A Diehl, is a law firm with its principal office location at
3464 Trindle Road, Camp Hill, Pennsylvania, 17011-4436,
2, Defendants, Donald J, Boinske and Susan V, Boinske, husband and wife, reside at 3810
Hearthstone Road, Camp Hill, Pennsylvania, 17011-1425,
3, On May 12, 2003, Defendants refinanced their home using the professional services of
Plaintiff,
4, At the closing, Defendants executed an errors and omissions agreement in the event of
clerical or computational errors, (See Exhibit "A",)
5, Plaintiff inadvertently paid by separate check a broker credit to Defendants of $1 ,318,09
which was already included in the Defendants' proceeds from the refinance resulting in the
Defendants being paid double for said amount.
-1-
6, Upon discovery of the overpayment, Plaintiff contacted Defendants in writing requesting
return of the erroneously delivered monies, (See Exhibit "B",)
7, Subsequent thereto, Defendants made two (2) payments of $100,00 each toward the
outstanding amount along with a note evidencing what the payments were for. (See Exhibit
He".)
8, Defendants then ceased making any further payments causing Plaintiff to file suit to recover
the remaining $1,118,09,
9, Defendants have received a windfall due to an innocent mistake and despite demands for
payments, courtesies by Plaintiff to Defendants to accept monthly payments until the balance
is paid, and other offers to amicably resolve this matter, Defendants have refused to make
payment.
1 0, Plaintiff has incurred costs in the amount of $73,50 to commence this action,
WHEREFORE, Plaintiff requests judgment in its favor and against Defendants for the sum
of$I,118,09, court costs, and interest on the time period that Defendants have improperly retained
the monies,
Respectfully submitted,
LAW OFFICES OF CRAIG A. DIEHL
Dated:
1/1 /D~
I I
By: n~r1 {J.1L
C~Dlehl, EsqUire
Attorney ID No. 52801
3464 Trindle Road
Camp Hill, PA 17011-4436
(717) 763-7613
-2-
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA
LAW OFFICES OF CRAIG A. DIEHL,
Plaintiff
NO, 05-3151 Civil Term
vs,
DONALD J, BOINSKE and
SUSAN V, BOINSKE,
CIVIL ACTION - LAW
Defendants
VERIFICATION
1, CRAIG A, DIEHL, owner of LAW OFFICES OF CRAIG A, DIEHL, verify that the
statements set forth in the foregoing COMPLAINT are true and correct to the best of my knowledge,
information and belief. I understand that false statements herein are made subject to the penalties
of 18 Pa, 94904 relating to unsworn falsification to authorities,
LAW OFFICES OF CRAIG A, DIEHL
Dated:
111 105'
,
By:
n' tl.lJ;.Jf
Cra~iehl, Owner
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA
LAW OFFICES OF CRAIG A. DIEHL,
Plaintiff
NO, 05-3151 Civil Term
vs,
DONALD J, BOINSKE and
SUSAN V, BOINSKE,
CIVIL ACTION - LAW
Defendants
CERTIFICATE OF SERVICE,
AND NOW, this g-#- day of July, 2005, the undersigned hereby certifies that a true
and correct copy of the foregoing COMPLAINT was served upon the opposing party by way of
United States first class mail, postage prepaid, addressed as follows:
Byron L. McMasters, Esquire
GATES, HALBRUNER & HATCH, p,c.
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
LAW OFFICES OF CRAIG A. DIEHL
~?
BY:~--""--
Helen E, Rasmussen, Legal Assistant
3464 Trindle Road
Camp Hill, PA 17011-4436
(717) 763-7613
File No. CAD03273_SAP
All computations set forth on the attached Disclosure/Settlement Sheet for the
salelrefinance of real estate located at 3810 HEARTHSTONE RD., CAMP HILL, P A, are believed
accurate and complete,
However, it is herehy agreed hetween all parties to said real estate transaction that,
should there subsequently prove to be errors of deletion, inclusion, exclusion, or computation
on said Disclosure/Settlement Sheet, upon reasonable proof of such, appropriate adjustments
shall be made and the parties hereto agree to bear their respective expenses as may be required
by such adjustment of closing cost, or to sign any documents as required.
..
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DONALD J. BOINS ,JR. \./
~~ V l>>,~~ i
SUSAN V. BOINSKE
Law Offices of
Craig A. Diehl
3464 Trindle Road
Camp Hill, Pennsylvania 17011-4436
~Q~rn @@~W
Telephone (717) 763-7613
Telecopier (717) 763-8293
September II, 2003
In Spring Grove, Pennsylvania
119 West Hanover Street
Spring Grove, PA 17362
Telephone: (717) 225-1929
Craig A, Diehl, Esquire, C.P,A,
Linda A, Clotfelter, Esquire
Mr. and Mrs, Donald J, Boinske
3810 Hearthstone Road
Camp Hill, P A 17011
Re: Your Refinance of381O Hearthstone Drive on May 12,2003
Dear Mr. and Mrs, Boinske:
On the above-referenced date you signed papers to refinance your home at 3810 Hearthstone
Drive, Four days after that date, on May 16, 2003, funds were dispersed and you were issued two
checks - one check was for $21,574,12, the other was for $1,318,09, It is my unfortunate duty to
inform you that the latter check for $1,318,09 was issued to you in error.
Please allow me to further explain how this error occurred, Your broker for this transaction
was Black Rock Mortgage, If my memory serves me correctly, you were not happy with their
services throughout the loan process and in the end they decreased their fees to ease the tensions that
had been building, In order to compensate for their exorbitant fees, they gave you what they term
a "broker credit", This credit was money that was to come from the fees originally designated to
them and go to the total amount you would receive on May 16th, Their total fee for this transaction
was $1,663,73, They gave you a broker credit of $1,318,09, Therefore, their total gain on this
transaction was $345,64,
My mistake was that I included the broker credit on your s(~tt1ement statement, meaning this
sum was already included in the funds to be returned to you once your loan disbursed, and then I
issued to you yet another check for $1,318,09, This is my mistake and I apologize for any
inconvenience this may cause you, but I must request that you remit the sum of $ I ,318,09 to our
office at your earliest convenience,
Mr, and Mrs, Donald J, Boinske
September 11, 2003
Page Two
It is never pleasurable to write letters of this nature and ewn less of a pleasure to remind you
that on the date of your closing you signed an errors and omissions form agreeing to
"bear,..respective expenses as may be required," Please be assured that mistakes of this nature do
not occur often, but we have borrowers sign the errors and omissions form for those unfortunate
instances when they do occur,
Should you have questions or concerns, please do not hesitate to call me, Again, I am truly
sony for any inconvenience this may cause,
Very truly yours,
-I
Ai~ 1"01"
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Stephanie A, Perez
Settlement Coordinator
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Gates. Halbruner & Hatch, P.C.
By: Byron L. McMasters, Esquire
PA 92410
1013 Mumma Road. Suite 100
Lemoyne. PA 17043
(717) 731-9600
(717) 731-9627 facsimile
b.mcmasters@gateslawfirm.com
Attorneys for Donald J. Boinske and Susan V. Boinske
IN THE COURT OF COMMON PLEAS
FOR CUMBERLAND COUNTY, PENNSYLVANIA
LAW OFFICES OF CRAIG A. DIEHL
Plaintiffs,
NO. 05.3151 Civil Term
vs.
DONALD J. BOINSKE and
SUSAN V. BOINSKE,
CIVIL ACTION. LAW
Defendants.
PETITION OF GATES, HALBRUNER & HATCH, P.C.
FOR WITHDRAWAL OF APPEARANCE
Gates. Halbruner & Hatch. P.C. ("GHH") and Byron L. McMasters, Esquire
("Attorney") petition this Court for leave to withdraw their appearance in this action
pursuant to Pa.R.C.P. No, 1012 and in support thereof aver as follows:
1. Pursuant to Pa.R.C.P. No. 1012(c), attorneys may withdraw their
appearance with leave of Court by filing a petition.
2. GHH entered its appearance on behalf of the Defendants, Donald J.
Boinske and Susan V. Boinske. in this matter by filing a Notice of Appeal from District
Justice Judgment on June 17, 2005.
3. The whereabouts of Defendants are known.
4. The current address of Defendants is 3810 Hearthstone Road, Camp Hill,
Cumberland County, Pennsylvania. 17011.
5. Defendants were served with notice of this petition in accordance with
PaR.C.P. No. 440.
6. After consultation between GHH and Defendants regarding possible
defenses to the action and the potential costs of litigation, Defendants have elected not
to have GHH continue representation of them in this matt'er.
7. Attomey and Albert N. Peterlin. Esquire. another attomey with GHH,
contacted Susan Boinske by telephone on July 20, 2005, and requested her
concurrence. which she gave. for GHH and Attorney to withdraw from representing
Defendants in this matter.
PRAYER FOR RELIEF
Gates. Halbruner & Hatch, P,C. and Byron L. McMasters, Esquire respectfully
request that this honorable court enter an order permitting GHH and Attorney to
withdraw from representation of Defendants in this matter.
Respectfully submitted.
GATES. HALBRUNER & HATCH, P.C.
~L-
-
Date: July 20, 2005
By:
. McMastem, Esquire
CERTIFICATE OF SERVICE
I. Byron l. McMasters, Esquire. hereby certify that a true and correct copy of the
foregoing Petition of Gates, Halbruner & Hatch. P.C. for Withdrawal of Appearance has
been served upon the following individuals by first class mail, postage prepaid.
addressed as follows:
Donald J. Boinske
Susan V. Boinske
3810 Hearthstone Road
Camp Hill, PA 17011
(Defendants)
Craig A. Diehl
3464 Trindle Road
Camp Hill, PA 17011
(Plaintiff)
GATES, H.ALBRUNER & HATCH, P.C.
~~
Byron L. McMasters, Esquire
DATED: '1- ':<0- OS'
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YRECEIVED JUL 212005
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IN THE COURT OF COMMON PL.EAS
FOR CUMBERLAND COUNTY, PENNSYLVANIA
LAW OFFICES OF CRAIG A. DIEHL
Plaintiffs,
NO. 05-3,151 Civil Term
vs.
DONALD J. BOINSKE and
SUSAN V. BOINSKE,
CIVIL ACTION - LAW
Defendants.
ORDER OF COURT
AND NOW, this z{' day of July, 2005, the Petition of Gates. Halbruner & Hatch.
P.C. for Withdrawal of Appearance is GRANTED. Gates. Halbruner & Hatch. P.C. and
attorney Byron 1.. McMasters. Esquire, are hereby permittl:ld to withdraw from
representation of Defendants Donald J. Boinske and Susan V. Boinske in this matter.
BY THE COURT,
.;1l
, Judge
FILlI;'C'.hCC:
OF THE r:.:"\ji'CYIJT.6HY
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA
LA W OFFICES OF CRAIG A. DIEHL,
Plaintiff
NO. 05-3151 Civil Term
vs.
DONALD J. BOINSKE and
SUSAN V. BOINSKE,
CIVIL ACTION - LAW
Defendants
PRAECIPE TO DISCONTINUE
TO THE PROTHONOTARY:
Kindly mark the above-captioned proceeding settled and discontinued with prejudice.
LA W OFFICES OF CRAIG A. DIEHL
Dated:
1hl/~t
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By: cr~~Jr1i
Attorney ID No. 52801
3464 Trindle Road
Camp Hill, PA 17011-4436
(717) 763-7613
Dated:
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~usan V. Boinske
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