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HomeMy WebLinkAbout01-3431 COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS NOTICE OF APPEAL FROM JUDICIAL DISTRICT DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. Oi -.] If,) I (!,'U ~L ~ \. 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 mentioned below. aTY NLc.\l E NAME OF APPELLANT TLk \\J 0411: OF ADGMENT ~.N\ ~T UDRM.u8<S ~uR(5- ZIP CODE IllY-\ 3 IN THE CASE OF (Plaintiff) PowELL f"rJ vs. N A.GL fC SIGNATURE OF APPelLANT OR HIS ATTORNEY (Defendant) o ALE AGENT a.AIM NO. CV 12 LT 19 This block will be signed ONLY when this notation is required under Po. R.CP.J.P. No. 1oo8B. This Notice of Appeal, when received by the District Justice, will operate as a SUPERSEDEAS to the judgment for possession in this case \~-o\ ('" ~ )C-J Signature of Prothonotary or Deputy If 71ant was CLAIMANT (see Pa. R.GP.JP. No. 1001 (6) in action before District Justice, he MUST FILE A COMPLAINT within twenty (20) days after filing his NOTICE of APPEAL. PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see Pa. HCP.JP. 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 P D.........ClL \.. \,(1'\ (2... ~ ~ , appellee(s), to file a complaint in this appeal fVame of appellee( s) Ie""""", Plea, No- rJ I -.~ '-(.iN Ci <>;1 "7-~) wi,h;" ,.....y (20) day. of1e< _~,. of ru~ ~ , ~udgment of ~ """ RULE: To U'tl 00..L aJe \/ AR.f~ . Name of llee( s) of appellant or his attorney or agent , appellee(s). (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 WILL BE ENTERED AGAINST YOU. (3) The date of service of this rule if service was by mail is the date of mailing. Date,.JL<AJ~ ~ .~~OI '------ aG/>J. p ~~~ Si{1'latlle 01 N:If'C 312-84 COURT FILE TO BE FILED WITH PROTHONOTARY SERVICE OF NOTICE OF APPEAL AND RULE TO FilE COMPLAINT (This of service MUST BE FILED WITHIN TEN DA YS AFTER filing the notice of Check applicable boxes) COMMONWEALTH OF PENNSYLVANIA COUNTY OF ~,~~__,~__~~_ ; lIlI affirm that served 01 Common Pleas No, upon the District Justice therein on by personal service by (certified) (registered) sender's ; on by (certified) (registered) mail, sender's receipt attached hereto, the above Notice of Appeal upon the appellee(s) to whom ,19~ service attached hereto, and upon the __~_,~__~~ , 19~_ by personal service and further that I served the Rule to File a was addressed on attached 11ereto, BEFORE ME DAY ,19__ Signature of affiant Tille My commission _~~_~_,~.~. 1B~ " ~ 2 0 ~ ~ ..4 7Y ~ t- ~r.: '"'\-; h -0 OJ ~ I C5 rQp-\ n'lr ~ ~ . Z:D , -")11'1 8 ~ zc (_n ~lJt ''') .'cp~,~ "... ':::> ......... ~\ 2-- ._-T!.-ri I <::c: ~ .. -;1 " I (~)-- ~o ->>- --.~ V ~ ~ - L.. %0 - S ,(: ::J;>-c: ~ 1- ~ 0 ~ 0 -.. 0 ~i, ~ C (:"" t ~ ,-. .. ... COMMONWEALTH OF PENNSYLVANIA COUNTY OF: CUMBERLAND Mag. DIS: No 09-1-02 OJ Nanle. hon ROBERT V. MANLOVE Address 1901 STATE STREET CAMP HILL, PA Telephone (717) 761- 0583 17011- 0000 DALE NAGLE 100 S FRONT ST WORMLEYSBURG, PA 17043 THIS IS TO NOTIFY YOU THAi": Judgment: [iJ Judgment was entered for: (Name) [iJ Judgment was entered against: (Name) NOTICE OF JUDGMENT/TRANSCRIPT CIVIL CASE PLAINTIFF: NAME ano ADDRESS !POWELL, KAREN 173 SCHOOLHOUSE RD PALMYRA, PA 17078 I L -! VS. DEFENDANT: NAME and ADDRESS fNAGLE, DALE 100 S FRONT ST WORMLEYSBURG, PA 17043 L Docket No.: CV - 0000106 - 01 Date Filed: 4/02/01 I _I FOR PLAINTIFF POWRTo To 10\ R RN' . in the amount of $ 1.,OR1 RR on: NAGT.F.. nAr.F. (Date of Judgment) l) /07 /01 . . o Defendants are jointly and severally liable. o Damages will be assessed on: o This case dismissed without prejudice. o o D Amount of Judgment Subject to Attachment/Act 5 of 1996 $ Levy is stayed for days or 0 generally stayed. Objection to levy has been filed and hearing will be held: Date: Place: Time: (Date & Time) Amount of Judgment $ 2,000.00 Judgment Costs $ 81.88 Interest on Judgment $ .00 Attorney Fees $ .00 Total $ 2,081.88 Post Judgment Credits $ Post Judgment Costs $ ------------ ------------ Certified Judgment Total $ ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COpy OF T~E JUD I C T F M WITH YOUR ~OTICE OF APPEAL ,5 - 7 - u (Date 11.. ~ . , District Justice I certify that this is a true 5~ - 7 - () , Date My commission expires first Monday of January, Aope 315-99 2006 , '/.~ """.,. SE.J.\L'" " ..~ ' \ 1 " ~ ;:;;..-- ~~..'" ,,~l"'''',;~'''cl~P-.i ,T:'.'~r?r"')~~'-!">',"F'i'<"~''"~';:'''',-..~:r:.r~'""..' __~.._""""""~, ~''''''''''lf_''''~:r'~'''''''--'' .~ -.. . . ~.,""""" ". ,_......""'~,_...- ",,,,,,,,;,,,,:---,..,.~ "--~" ~ --,....'~'~'_'T COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS NOTICE OF APPEAL FROM JUDICIAL DISTRICT DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. 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 elate and in the case mentioned below. NAME Of APPELlANT ADDRESS Of APPELlANT aTY I MAG. D1ST. NO. OR NAME Of ~.J. STATE ZI' COOf DATE Of .J\JDGMENT IIN THE CASE OF (Plaintiff ) (Defendant) ClAIM NO. vs. SIGNATURE Of APPELLANT OR HIS ATTORNEY OR AGENT CV 12 ." lT 19 This block will be signed ONLY when this notation is required under Po. R.c.P.J.P. No. 1008B. This Notice of Appeal. when received by the District Justice. will operate as a SUPERSEDEAS to the judgment for possession in this case. Signature of Prothonotary or Deputy "- If appellant was CLAIMANT (see Pa. R.CP.J.P. No. 1001 (6) in action before District Justice, he MUST FILE A COMPLAINT within twenty (20) days after filing his NOTICE of APPEAL. PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see Pa. HC.P.J.P. 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 . appellee(s). to file a complaint in this appeal Name of appellee{ s) (Common Pleas No. ) within twenty (20) days after service of rule or sl,lffer entry of judgment of non pros. Signature of appellant or his attomey or agent RULE: To " .... . appellee(s). Name of appel/f3e{ s) (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 fife a complaint within this time. a JUDGMENT OF NON PROS Will BE ENTERED AGAINST YOU. (3) The cIate of ~vice of this rule if service was by mail is the date of mailing. Date: -.19_.'" , ";,~ # , ! _... 'r:") ,'L t~,L",i~:~.:, l i Signature of ProthonotBry ci Deputy " - OF APPEAL AND RULE TO FILE COMPLAINT of MUST BE FILED WITHIN TEN DA YS AFTER the notice of ChACk applicable boxes) COMMONWE.ALTH Of PENNSYLVANIA L J Mr,~ltc...At,JO COUNTY OF ~-~ ; 55 affirm that i served ..- it1 copy of of p"pp~a!,t:.ommon Pleas No, ~ 15 I ' and Llpon the ,4fk_<:L~~ -.OJ.:. ~3~, upon the District Justice ".- . /Zf by service therein on sender's _,on SWOF1N (AFFifiMED) 611 ,. ^'~,.o_~~~~~~~"^'~,~o~._ ME 'OF~s:r~~.~~-,._, lR~29C> \ - --- , 'L:----- "".-- ,~ (certified) (registered) mail, sender's receipt attached hereto. the above Notice of upon the to whom ,'l(JO.-L..., personal service p.-tly (certified) C) 011 Signature of affiant 6 ~ifP,ef.;Notar;v P.ubliClda ower City Boro, Schuylkill Coo My eorn!Ril;slon E~pire~ Fe~ oiMtn'll)~r. Pt;jnnsylvanill /sse;eiation of Notaries 19__. () C ~ ....,~, VI'. cP L(\ zr OJ ;':' ""'..'-- r:r- ~:;:: '--' ;ZC --0 Pc Z =<! f') (.=J o r--. ~ -j""f c.... SENDER: COMPLETE THIS SECTION . Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. . Print your name and address on the reverse so that we can return the card to you. . Attach this card to the back of the mailpiece, or on the front jf space permits. 1, Article Addressed to: ;::rl:l :...., \0 D, Is delivery address diff rent from item 1? If YES, enter delivery address below: KARf'N PawaL 11 ~ <) C:KcoLHcSUSE (<a. PAL.(Y\,/AA, ~ ilo7 ~ 3, Service Type f'tJl Certified Mail "0 'Registered o Insured Mail o Express Mail o Return Receipt for Merchandise o C,O.D. 4. Restricted Delivery? (Extra Fee) 0 Yes 2. Article Number (Copy from service label) ~O IS-so DOOr /Brtr PS Form 3811, July 1999 Domestic Return Receipt /9kj; 102595-00-M-0952 ---.'-- ----- _._.,-_._--_.---~---~-_._'---_......_-_._,._- l>9-~ \ € ':>dOl 311:1 .LlIno:) Karen Powell, Plaintiff, vs. Dale Nagle d/b/a Alliance Computers, Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-3431 CIVIL TERM 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 2 Liberty Avenue Carlisle, Pa 17013 Telephone: 717-249-3166 800-990-9108 - Karen Powell, Plaintiff, vs. Dale Nagle d/b/a Alliance Computers, Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-3431 CIVIL TERM COMPLAINT NEGLIGENCE AND NOW, comes Karen Powell (hereinafter "Plaintiff"), and makes the following complaint: 1. Plaintiff is an adult woman now residing at 173 School House Road, Palmyra, Pa 17078. 2. Defendant is (Dale Nagle d/b/a Alliance Computers) operating a computer business with its primary office at 100 S. Front St., Wormleysburg, Pa 17043. 3. Defendant delivered and hooked up a computer at the Plaintiffs house June 8, 2000 primarily for the plaintiffs businesses which are manufacturing baby slings and selling wood boilers. 4. Plaintiff purchased the computer from the defendant and relied on the defendants expertise to install and set up the computer for her business use. 5. When the Plaintiff received the computer, it had loaded on it Microsoft Office 2000, Windows, Quick Books Pro and lots of other software. 6. When the Plaintiff tried to get back online with Paonline, they said she needed to reload Windows because something was wrong. 7. The plaintiff contacted the defendant because the defendant hadn't provided copies of the software. 8. The defendant mailed a copy of the software to the plaintiff so it could be reinstalled. 9. The plaintiff was then able to reinstall Windows and get back online. 10. The plaintiff had trouble with Microsoft Office and contacted the defendant. 11. The defendant mailed a copy of Microsoft Office to reinstall. 12. The plaintiff continued having more and more problems with the system and tried to get help from the defendant. 13. As the system got to the point where it would hardly operate, the defendant said the plaintiff would have to take it in to their store. 14. The plaintiff tried to get them to come out but they would not. 15. The plaintiff did a backup of the system and took it in to the store. 16. The plaintiff asked several times how to save email addresses and messages as much of their business is done this way. 17. The defendant's personnel did not know how to save this data. 18. The plaintiff asked the defendant's shop to please do a backup before doing anything to the system as she did not trust that her's took. 19. The defendant said they could do it one oftwo ways, on another hard drive for $50 or on floppies for $25. 20. The plaintiff said to use the floppies. 21 February 15, 2000 the defendants business calls the plaintiff to say the computer is fixed however, they lost EVERYTHING. 22. When the plaintiff got the computer home and hooked back up, it only had Windows and Microsoft Office on it. 23. When the Plaintiff questioned the missing software she was told she never paid for it and it was just put on as a generous gesture. 24. 25. 26. 27. 28. for $2,081.88. 29. The plaintiff tried to restore from her backups but they would not work. The plaintiff is still having trouble with the system. The plaintiff tried to resolve things unsuccessfully with the defendant. The plaintiff took the situation with no resolution to the Better Business Bureau. The plaintiff then took the case to the District Justice where they ruled in her favor The defendant negligence lost four years worth of the plaintiffs work for her business which included address lists, mailings, mail merge files, brochures, invoices, business cards, etc. etc.. 30. This has cause hours of rebuilding data for the plaintiff. 31. Some of this data is not retrievable. WHEREFORE, Plaintiff respectfully requests that the Court enter a judgment in her favor and against Defendant for damages in an amount not exceeding the threshold for compulsory arbitration under local rules, together with costs of suit, attorney fees and such other relief as the Court deems appropriate. Respectfully Submitted, ;(~j ~ DATE: Ii 3 Karen L. Powell 173 School House Road Palmyra, Pa 17078 (717) 838-9270 (Plaintift) J CXJI VERIFICATION The undersigned hereby verifies that the facts averred in the foregoing Complaint are true and correct to the best of her knowledge, information and belief. This verification is made subject to the penalties of 18 Pa.C.S. S4904 relating to unsworn falsification to authorities. Date: ~."J ~OQ ( (/ I ( j{tvPl j /0 cJj )<cdell L. g,,~11 (Name) CERTIFICATE OF SERVICE I, Karen Powell, hereby certifY that I served the foregoing Complaint on this date by first-class U.S. mail to the following: Dale Nagle d/b/a Alliance Computers 100 S. Front St. Wormleysburg, Pa 17043 (Defendant) /(~j W Karen{}>owell 173 School House Road Palmyra, Pa 17078 (717) 838-9270 (Plaintift) DATE: I(/~ ~ 20()/ 0 (-', r-' .' [s }1 - ---< [0 Lrt 70 ;s .' 0 " N . , .' , L~ (jJ '. 0 KAREN POWELL, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA Plaintiff vs. NO. 01-3431 CNIL TERM DALE NAGLE d/b/a ALLIANCE COMPUTERS, CNILACTlON -ATLAW Defendant ORDER AND NOW, this day of , 2001, upon consideration of Defendant's Preliminary Objection to Plaintiffs Complaint by way of demurrer, and Plaintiffs response thereto, it is hereby ORDERED that said objection is sustained and Paragraphs 7 to 30 of the Plaintiffs Complaint are dismissed. Defendant shall have the right to answer the balance of the Complaint within days of the entry of this Order. BY THE COURT, J. KAREN POWELL, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs. NO. 01-3431 CIVIL TERM DALE NAGLE d/b/a ALLIANCE COMPUTERS, CIVIL ACTION - AT LA W Defendant ORDER AND NOW, this day of ,2001, upon consideration of Defendant's Preliminary Objection raising insufficient specificity of pleading of Plaintiffs Complaint, it is hereby ORDERED that Plaintiff file a more specific complaint, in particular Paragraphs 7 through 30 thereof, within twenty (20) days after notice of this Order. BY THE COURT, J. KAREN POWELL, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs. NO. 01-3431 CIVIL TERM DALE NAGLE d/b/a ALLIANCE COMPUTERS, CIVIL ACTION - AT LA W Defendant DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes the Defendant, Dale Nagle, d/b/a Alliance Computers, by and through his attorney, Kirstin M. Sweigard, Esquire, and hereby submits the following preliminary objections to Plaintiffs Complaint pursuant to Pa. R.C.P. 1028(a) and in support thereof avers the following: 1. Plaintiff commenced this action by filing a Complaint on July 3, 2001. A copy of the Complaint is attached hereto as Exhibit "A". 2. The Complaint alleges, in summary, that the Plaintiff purchased a computer from the Defendant and thereafter experienced some difficulties with the computer. 3. The Complaint also alleges that the Defendant was negligent, thereby causing the Plaintiff to sustain injuries. PRELIMINARY OBJECTION RAISING LEGAL INSUFFICIENCY OF PLAINTIFF'S COMPLAINT 4. Objecting Defendant incorporates by reference the averments of Paragraphs 1 through 3 above as if set forth herein in full. 5. Defendant preliminarily objects to Plaintiffs Complaint on the grounds that it improperly states a claim against the Defendant under the Pennsylvania Negligence Law, which is inapplicable to the factual basis presented in this case. 6. The Pennsylvania Negligence Law requires that the Plaintiff must allege a duty or obligation of the Defendant that is recognized by law, a breach of that duty, a causal connection between the Defendant's conduct and the resulting injury, and actual damages. Morena v. South Hills Health System, 501 Pa. 634,462 A.2d 680 (1983). 7. In the instant case, Plaintiff has stated a claim against Defendant in connection with warranties on a contract for the sale of goods. 8. Plaintiffs Complaint fails to allege a duty or obligation recognized by law on the Defendant. 9. Plaintiffs Complaint fails to allege any breach of that duty. 10. Plaintiffs Complaint fails to allege a causal connection between the Defendant's conduct and her alleged resulting injury. 11. Plaintiffs Complaint fails to allege any actual damages sustained by Plaintiff. 12. Therefore, the Defendant preliminarily objects to the Complaint on the grounds that it is legally insufficient against the Defendant for negligence. WHEREFORE, Defendant respectfully requests this Court to grant his preliminary objection by way of demurrer and dismiss all counts of Plaintiffs Complaint. PRELIMINARY OBJECTION RAISING INSUFFICIENT SPECIFICITY OF PLAINTIFF'S COMPLAINT 13. Objecting Defendant incorporates by reference the averments of Paragraphs 1 through 12 above as if set forth herein in full. 14. Paragraphs 7 through 18 of Plaintiffs Complaint allege various contacts with the Defendant regarding the sale ofthe computer. 15. Pa.R.C.P. 1019(f) requires that "averments oftime, place and items of special damage shall be specifically stated." 16. The aforementioned paragraphs fail to state in any respect the time of the alleged contacts. 17. Paragraphs 29 and 30 of Plaintiffs Complaint allege loss of four years worth of Plaintiffs work for her business which includes address lists, mailings, mail merge files, brochures, invoices, business cards, etc., etc., as well as hours of rebuilding data for the Plaintiff. 18. The aforementioned paragraphs 29 and 30 fail to specifically state special damages allegedly suffered by the Plaintiff. 19. Pennsylvania Rule of Civil Procedure 1 028( a )(3) provides that a Defendant may object to a pleading because of insufficient specificity. 20. Paragraph 29 of Plaintiffs Complaint does not plead specific material facts sufficient to allow Defendant to answer or prepare a defense and Plaintiff should be required to file a more specific pleading. 21. Plaintiffs Complaint lacks sufficient specificity to apprise the Defendant of the issues to be litigated and to allow him to adequately prepare and assert defenses to Plaintiffs allegations. WHEREFORE, Defendant respectfully requests that this Court order Plaintiff to more specifically plead the averments of paragraphs 7 through 30 of her Complaint. Respectfully submitted, fj/q/()/ Date I ' '-/1'-fIl fh~ 4--1. kF Kirstin M. Sweigard, Esquire KLINE LAW OFFICE 714 Bridge Street Post Office Box 461 New Cumberland, PA 17070-0461 (717) 770-2540 Attorney for Defendant CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the Amended Complaint upon Plaintiff by depositing same in the United States Mail, first class, postage pre-paid on the day of August, 2001, from New Cumberland, Pennsylvania, addressed as follows: Karen L. Powell 173 Schoolhouse Road Palmyra, PA 17078 01C}<AdiA/~' ~v~ Kirstin M. Sweigard, Esquire ( KLINE LAW OFFICE 714 Bridge Street Post Office Box 461 New Cumberland, P A 17070-0461 (717) 770-2540 Attorney for Plaintiff Defendant Karen Powell, Plaintiff, vs. Dale Nagle d/b/a Alliance Computers, Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-3431 CIVIL TERM COMPLAINT NEGLIGENCE AND NOW, comes Karen Powell (hereinafter "Plaintiff"), and makes the following complaint: 1. Plaintiff is an adult woman now residing at 173 School House Road, Palmyra, Pa 17078. 2. Defendant is (Dale Nagle d/b/a Alliance Computers) operating a computer business with its primary office at 100 S. Front St., Wormleysburg, Pa 17043. 3. Defendant delivered and hooked up a computer at the Plaintiffs house June 8, 2000 primarily for the plaintiffs businesses which are manufacturing baby slings and selling wood boilers. 4. Plaintiff purchased the computer from the defendant and relied on the defendants expertise to install and set up the computer for her business use. 5. When the Plaintiff received the computer, it had loaded on it Microsoft Office 2000, Windows, Quick Books Pro and lots of other software. 6. When the Plaintiff tried to get back online with Paonline, they said she needed to reload Windows because something was wrong. 7. The plaintiff contacted the defendant because the defendant hadn't EXillBIT "A" provided copies of the software. 8. The defendant mailed a copy of the software to the plaintiff so it could be reinstalled. 9. The plaintiff was then able to reinstall Windows and get back online. 10. The plaintiffhad trouble with Microsoft Office and contacted the defendant. 11. The defendant mailed a copy of Microsoft Office to reinstall. 12. The plaintiff continued having more and more problems with the system and tried to get help from the defendant. 13. As the system got to the point where it would hardly operate, the defendant said the plaintiff would have to take it in to their store. 14. The plaintiff tried to get them to come out but they would not. 15. The plaintiff did a backup ofthe system and took it in to the store. 16. The plaintiff asked several times how to save email addresses and messages as much of their business is done this way. 17. The defendant's personnel did not know how to save this data. 18. The plaintiff asked the defendant's shop to please do a backup before doing anything to the system as she did not trust that her's took. 19. The defendant said they could do it one oftwo ways, on another hard drive for $50 or on floppies for ,$25. 20. The plaintiff said to use the floppies. 21 February 15, 2000 the defendants business calls the plaintiff to say the computer is fixed however, they lost EVERYTHING. 22. When the plaintiff got the computer home and hooked back up, it only had Windows and Microsoft Office on it. 23. When the Plaintiff questioned the missing software she was told she never paid for it and it was just put on as a generous gesture. 24. The plaintiff tried to restore from her backups but they would not work. 25. The plaintiff is still having trouble with the system. 26. The plaintiff tried to resolve things unsuccessfully with the defendant. 27. The plaintiff took the situation with no resolution to the Better Business Bureau. 28. The plaintiff then took the case to the District Justice where they ruled in her favor for $2,081.88. 29. The defendant ne~ lost four years worth of the plaintiffs work for her business which included address lists, mailings, mail merge files, brochures, invoices, 'business cards, etc. etc.. 30. This has cause hours of rebuilding data for the plaintiff. 31. Some of this data is not retrievable. WHEREFORE, Plaintiff respectfully requests that the Court enter a judgment in her favor and against Defendant for damages in an amount not exceeding the threshold for compulsory arbitration under local rules, together with costs of suit, attorney fees and such other relief as the Court deems appropriate. Respectfully Submitted, DATE: JJ, 3 ~\XJ( ;/ )FJ "/ /1cJ'/~ '7~l Karen L. Powell 173 School House Road Palmyra, Pa 17078 (717) 838-9270 (Plaintiff) VERIFICATION The undersigned hereby verifies that the facts averred in the foregoing Complaint are true and correct to the best of her knowledge, information and belief. This verification is made subject to the penalties of 18 Pa.C.S. S4904 relating to unsworn falsification to authorities. Date: [~-1 ?, / i9!'!C! ( J/ /1 tf/ hCl/.M !- fQ~A !<,,/e-r L. g~"<.-// (Name) CERTIFICATE OF SERVICE I, Karen Powell, hereby certify that I served the foregoing Complaint on this date by first-class U.S. mail to the following: Dale Nagle d/b/a Alliance Computers 100 S. Front St. Wormleysburg, Pa 17043 (Defendant) /(~lW Karen(Powell 173 School House Road Palmyra, Pa 17078 (717) 838-9270 (Plaintift) DATE: ~f; ~ :JOC/ \/ r-'- r.l( /""f G -c' ~( c c ~ ) I -2 . ) I ;~' PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and sutrnitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argunent Court. --------------------------------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) K.hREN POVJELL ( Plaintiff) vs. DALE NAGLE d/b/a Alliance Computers ( Defendant) No. 01 - 3,lt 31 Civil ~~ 2001 1. State matter to be argued (i.e., plaintiff's rrotion for new trial, defendant's demurrer to canplaint, etc.): Defendant's preliminary objections to Plaintiff's Complaint 2. Identify counsel who will argue case: (a) for plaintiff: Karen Powell Address: 173 Schoolhou 8e Road Palmyra, PA 17078 (b) for defendant: Kirstin IVl. Sweigard, Esquj re Address: KLINE IJAW OFFICE 714 Bridge Street Post Office Box 461 New Cumberland, PA 17070-0461 3. I will notify all parties in writing wi thin two days that this case has been listed for argurent. 4. Argunent Court rEte: October 24, 2001 [Xlted: -1/7 pi //{!2Shl0 -1~ j;uLXalJ.) Attorney for / ~ f/Ld.CL& e C) () ~-I -. s: en -0 Q:} rt'I rnrn -0 z::o , zc ~5~ --' ~CJ -0 ~, :J.; 5>g ~ ~_J ~ N :r;! ....J ~ KAREN POWELL, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA VB. CIVIL ACTION - LAW DALE NAGLE d/b/a ALLIANCE COMPUTERS, Defendant. NO. 01-3431 CIVIL TERM PRAECIPE TO ENTER APPEARANCE TO THE PROTHONOTARY: Please enter our appearance as counsel for Karen Powell, the Plaintiff in the above-captioned action. GATES & ASSOCIATES, P.C. BY: Mark H bruner, Esquire Attorne ID No. 66737 Cory J. Snook, Esquire Attorney ID No. 85734 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 (717) 731-9600 Date: '5:er/ / I c/o-fJ I I CERTIFICATE OF SERVICE I, Mark E. Halbruner, of the law firm of Gates & Associates, P.C., hereby certify that I served a copy of the foregoing document by first-class u.s. mail to the following: Kirsten M. Sweigard, Esquire KLINE LAW OFFICE 714 Bridge Street P.O. Box 461 New Cumberland, PA 17070-0461 (Attorneys for Defendant) GATES & BY: Cory 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 (717) 731- 9600 (Attorneys for Plaintiff) ASSOCIATES, P.C. Sh"g DATE: ~pl. , /7 .Jo-o1 , ,- .......- ::-::: __.1 -< r-'", --'t 'J :") C) ::.> (,) ":l_~ -<, KAREN POWELL, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW DALE NAGLE d/b/a ALLIANCE COMPUTERS, Defendant. NO. 01-3431 CIVIL TERM AMENDED COMPLAINT AND NOW, comes the Plaintiff, Karen Powell, (hereinafter known as "Plaintiff') by and through her counsel, Gates & Associates, P.c., and respectfully submits the following Amended Complaint: 1. Plaintiff is an adult individual currently residing at 1 73 School House Road, Palmyra, P A 17078. 2. Defendant, Dale Nagle d/b/a Alliance Computers, (hereinafter referred to as "Defendant") has a primary business address of 100 South Front Street, Wormleysburg, PA 17043. 3. Defendant delivered and installed a computer at the Plaintiff s residence on or about June 8, 2000. 4. At that time, Defendant knew that Plaintiff planned to use the computer primarily for her businesses, which are manufacturing baby slings and selling wood boilers. 5. Plaintiff purchased the computer from Defendant and relied on the Defendant's expertise and knowledge to install and set up the computer for her business uses. 6. When Plaintiff initially received the computer, various programs were already loaded on it, including, but not limited to, Microsoft Office 2000, Windows, Quick Books Pro, and many other programs. 7. When Plaintiff attempted to re-connect with the internet through PaOnline, she was informed by that company that she needed to re-Ioad Windows because something was wrong. 8. Plaintiff contacted the Defendant, because she had not been provided with the disks that contained the software which would enable her to re-Ioad it. 9. Defendant mailed a copy of the software to Plaintiff so that it could be re-installed. 10. Plaintiff then re-installed Windows and was able to re-connect to the internet. 11. Plaintiff then experienced problems with the Microsoft Office software, and again contacted Defendant. 12. Defendant mailed a copy of the software to Plaintiff so that it could be re-installed. 13. Plaintiff continued to experience increasing problems with the computer system and repeatedly contacted Defendant for help. 14. The computer system eventually reached a point where it would barely operate as planned. 15. Defendant informed Plaintiff that he would have to take it into his store to fix it. 16. Defendant refused to come to Plaintiff's residence to view and/or fix the system. 17. Plaintiff made a back-up copy of the system and took it into the Defendant's store. 18. Plaintiff asked Defendant and his employees, agents, and representatives several times how to save email addresses and messages, because much of Plaintiff's business is conducted in this manner. 19. Defendant and/or his personnel did not know how to save this data. 2 20. Plaintiff requested Defendant to make a back-up of the system before performing any work on the system, because Plaintiff was not convinced that her own back-up had been complete and accurate. 21. Defendant informed Plaintiff that this could be done in one of two ways: on another hard drive for Fifty and 00/]00 ($50.00) Dollars, or on floppy disks for Twenty-five and 00/1 00 ($25.00) Dollars. 22. Plaintiff told Defendant to use the floppy disk method. 23. On or about February ]5,200], the Defendant informed Plaintiff that the computer was fixed, but that all the information and data had been lost. 24. Plaintiff returned the computer to her residence and hooked it up, only to find that it only contained Windows and Microsoft Office. 25. When Plaintiff questioned Defendant regarding the missing software, she was told that she never paid for it, and it was only provided the first time as a "generous gesture. " 26. Plaintiff tried to restore her system from her back-up files, but they would not work. 27. Plaintiff is still having trouble with the system. 28. Plaintiff has tried unsuccessfully to resolve her complaints with the Defendant. COUNT) BREACH OF CONTRACT 29. Paragraphs 1 through 28 are hereby incorporated by reference as though more fully set forth herein. 3 30. Defendant is in the business of selling and servicing computers. 31. Defendant agreed to sell to Plaintiff, and Plaintiff agreed to buy from Defendant, a working computer for approximately Five Hundred Twenty-four and 70/100 ($524.70) Dollars. 32. In addition, for the above-referenced sum, Defendant agreed to provide software programs on the computer and set-up and install the computer system at Plaintiff's residence. 33. Defendant knew the uses for which Plaintiff planned to use the computer system. 34. Defendant breached the sales contract in that the computer system that Defendant sold to Plaintiff did not work properly and did not perform the functions required by Plaintiff 35. Defendant breached the sales contract in that when Defendant returned the computer to Plaintiff after attempting to service it, the computer was devoid of many of the software programs that had originally been included with the system. 36. Plaintiff agreed to pay Defendant Twenty-five and 00/100 ($25.00) Dollars to ensure that a back-up system was made in order to maintain Plaintiff's records and data. 37. Defendant breached this contract by failing to maintain Plaintiff's records and data thereby damaging Plaintiff's business operations. WHEREFORE, Plaintiff respectfully requests this honorable Court to enter judgment in her favor and against Defendant for damages in an amount not exceeding the threshold for compulsory arbitration under local rules, together with costs of suit, attorneys' fees, and such other relief as the Court deems appropriate. 4 COUNT II NEGLIGENCE 38. Paragraphs 1 through 37 are hereby incorporated by reference as though more fully set forth herein. 39. Defendant was aware of the nature ofPlaintitT's businesses, and intended uses for the computer system. 40. Defendant was informed of the importance of the records, data, and information contained on the system when it was brought in for repairs and/or servicing. 41. Defendant was informed of the importance of making a back-up copy of the system to ensure the maintenance and safety of the records, data, and information contained on the system. 42. Defendant had a duty, being duly informed, to ensure the safety and to maintain the records, data, and information on the computer system. 43. Defendant breached that duty by failing to maintain the records, data, and information on the computer system. 44. Defendant's breach of this duty caused the loss of approximately four (4) years' worth of information for Plaintiff's businesses, including, but not limited to address lists, mailings, mail merge files, brochures, invoices, and business cards. 45. Much of this information cannot be recovered, retrieved, or accurately re-created by Plaintiff. 46. Plaintiff has spent countless hours attempting to rebuild and re-create the records, 5 data, and information lost by the Defendant. WHEREFORE, Plaintiff respectfully requests this honorable Court to enter judgment in her favor and against Defendant for damages in an amount not exceeding the threshold for compulsory arbitration under local rules, together with costs of suit, attorneys' fees, and such other relief as the Court deems appropriate. Respectfully submitted, GA TES & ASSOCIATES, P.e. p BY: Cory J. ook, E uire Attorney J.D. # 5734 1Ol3 Mumma Road, Suite 100 Lemoyne, P A 17043 (717) 73 1-9600 (Attorneys for Plaintiff) Date: f) c-/ob&y fI, d-o-D ( I 6 VERIFICA TION Due to time and distance constraints, Plaintiff's verification of the facts set forth in the foregoing pleading cannot be obtained within the time allowed for filing the pleading. Pa.R.C.P. 1024(c). The foregoing pleading is based upon information which I have gathered as counsel for Plaintiff, and it is true and correct to the best of my knowledge, information and belief This statement and verification are made subject to the penalties of 18 Pa.C.S. ~4904 relating to unsworn falsification to authorities, which provides that ifI make knowingly false averments, I may be subject to criminal penalties. Dated: Dc/otef L/ ~7 ~ r;Z' ~~'~ CORY 1. NO? ,2001 S? '-, & " 0 ,-I cO 0 -+- (, VI ""'0 3: ,.., , N lP KAREN POWELL, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA vs. CIVIL ACTION - LAW DALE NAGLE d/b/a ALLIANCE COMPUTERS, NO. 01-3431 CIVIL TERM Defendant PRAECIPE TO WITHDRAW t'~~\>M. \ t...11\-t.v: c ~~c..\\~~ TO THE PROTHONOTARY: Kindly withdraw Preliminary Objections filed in the above-referenced case, as well as the listing for argument court on October 24, 2001. Respectfully submitted, DATE /o/c;/o I I l i;(<?~tl~wi:~~~ 714 Bridge Street Post Office Box 461 New Cumberland, P A 17070-0461 (717) 770-2540 Attorney for Defendant C> - o ~ J:) '.') I' -0 ~ N KAREN POWELL, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW DALE NAGLE d/b/a ALLIANCE COMPUTERS, Defendant. NO. 01-3431 CIVIL TERM PRAECIPE TO SUBSTITUTE VERIFICATION To the Prothonotary: Please substitute the attached verification of Karen Powell for the verification previously filed with the Amended Complaint in the above-captioned matter. Respectfully submitted, GATES & ASSOCIATES, P.c. BY: Cory J. Snoo , Esquire Supreme Court 1.0. #85734 1013 Mumma Road, Suite 100 Lemoyne, P A 17043 (717) 73 1-9600 (Attorneys for Plaintiff) DATED: {)c j,. b er /0,2001 VElllFJJ:~A lION The undersigned hereby '..erifie~ that the facts averred in the r()regoing document are true and torrect to the best of her knowled"e, information, and belief '-' Thi5 verificatIon is made subject to the penalties oflS Pa, C S A ~ 49t)4 rdating to UnsV,O;-i; falsification to authorities Date _Od_~__;ZQQI,_ -L~.~._ KARf:1\ POWELL CERTIFICA TE OF SERVICE I, Cory 1. Snook, of the law firm of Gates & Associates, P.c., hereby certifY that I served a true and correct copy of the foregoing Praecipe to Substitute Verification by first-class U.S. mail to the following: Kirstin M. Sweigard, Esquire Kline Law Office 714 Bridge Street P.O. Box 461 New Cumberland, P A 17070-0461 DATED: OClober IcJ ,2001 Respectfully submitted, GATES & ASSOCIATES, P.c. BY: Cory 1. noo, Esquire Supreme C urt 1.0. #85734 1013 Mumma Road, Suite 100 Lemoyne, P A 17043 (717) 73 1-9600 (Attorneys for Plaintiff) o --- \ . o ~ \. ~ -;:::: -0 ':> ~. \f'\ CO KAREN POWELL, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW DALE NAGLE d/b/a ALLIANCE COMPUTERS, Defendant. NO. 01-3431 CIVIL TERM CERTIFICA TE OF SERVICE I, Cory 1. Snook, of the law firm of Gates & Associates, P.c., hereby certifY that I served a true and correct copy of the Amended Complaint on October 4,2001 by First Class mail addressed to the following: Kirstin M. Sweigard, Esquire Kline Law Office 714 Bridge Street P.O. Box 461 New Cumberland, P A 17070-0461 Respectfully submitted, GATES & ASSOCIATES, P.e. BY: ory J, nook squire Supreme Court J.D. #85734 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 (717) 731-9600 (Attorneys for Plaintiff) DATED: tJc Iobe.,- 10,2001 0 -, 0 ,..., T - -:-0 ;$ N Lr\ Do KAREN POWELL, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs. NO. 01-3431 CIVIL TERM DALE NAGLE d/b/a ALLIANCE COMPUTERS, CIVIL ACTION - AT LAW Defendant NOTICE TO PLEAD To: Karen Powell You are hereby notified to file a written response to the enclosed Answer with New Matter Pursuant to Pa.R.C.P. 2252 against you within twenty (20) days from the service hereof or a judgment may be entered against you. Date: lol ''lie I BY: '1~I)~: ~ f1,u~ d Kirst' M. Sweigard, Esquire KLINE LA W OFFICE 714 Bridge Street Post Office Box 461 New Cumberland, PA 17070-0461 (717) 770-2540 Attorney for Defendant KAREN POWELL, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs. NO. 01-3431 CIVIL TERM DALE NAGLE d/b/a ALLIANCE COMPUTERS, CIVIL ACTION - AT LAW Defendant DEFENDANT'S ANSWER WITH NEW MATTER TO PLAINTIFF'S AMENDED COMPLAINT AND NOW, comes the Defendant, Dale Nagle, d/b/a Alliance Computers, by and through his attorney, Kirstin M. Sweigard, Esquire, and files the following Answer with New Matter to above-named Plaintiffs Amended Complaint: 1. Admitted. 2. Admitted in part, denied in part. Defendant admits that as of the date of this pleading his primary business address is Alliance Computers, 100 South Front Street, W ormleysburg, P A 17043. However, at the time of the sale subject of this complaint, Alliance Computers h,!d not yet been opened. 3. Admitted in part, denied in part. Defendant admits that he delivered and installed a central processing unit (CPU) at the Plaintiffs residence on or about June 8,2000, however denies delivering an entire computer system. 4. Denied. At the time of the purchase of the CPU, Defendant was unaware of the specificities of Plaintiffs alleged business, nor was he informed that the CPU was, in fact, installed for her business. 5. Denied. Defendant is without sufficient information, knowledge or belief to form an opinion as to the truthfulness of the allegation contained in this paragraph and, therefore, the allegation is denied and proof demanded. Therefore, said allegations are denied. By further answer, defendant avers that plaintiff did not rely on defendant to set up a CPU for her business uses. 6. Admitted in part, denied in part. Defendant admits that he loaded Microsoft Office and Windows as well as some other demonstrations programs for Plaintiffs trial use with the suggestion to purchase such software. However, Defendant denies Plaintiff purchasing any such software. 7. Denied. Defendant is without sufficient information, knowledge or belief to form an opinion as to the truthfulness of the allegation contained in this paragraph and, therefore, the allegation is denied and proof demanded. By further answer, Defendant has no knowledge of Plaintiffs communications with PaOnline. 8. Admitted in part, denied in part. Defendant admits that Plaintiff contacted him in regard to the software; however, to the contrary, Plaintiff had not been provided with the software because she did not purchase the software. 9. Admitted. 10. Denied. Defendant is without sufficient information, knowledge or belief to form an opinion as to the truthfulness of the allegation contained in this paragraph and, therefore, the allegation is denied and proof demanded. By further answer, Defendant has no knowledge of whether or not Plaintiff installed any software. 11. Admitted in part, Denied in part. Defendant admits that Plaintiff contacted him however, has no knowledge of whether or not Plaintiff experienced problems with any software. 12. Admitted. 13. Denied. Defendant is without sufficient information, knowledge or belief to form an opinion as to the truthfulness of the allegation contained in this paragraph and, therefore, the allegation is denied and proof demanded. 14. Denied. Defendant is without sufficient information, knowledge or belief to form an opinion as to the truthfulness of the allegation contained in this paragraph and, therefore, the allegation is denied and proof demanded. 15. Admitted in part, denied in part. Defendant informed Plaintiff that the central processing unit would have to be transported to his store in order for him to determine if any of the components in the central processing unit were the source of the problem. 16. Denied. Defendant indicated to Plaintiff that the central processing unit would need to be brought into the store in order for him to determine if any of the components were the source ofthe problem. 17. Denied. Defendant is without sufficient information, knowledge or belief to form an opinion as to the truthfulness of the allegation contained in this paragraph and, therefore, the allegation is denied and proof demanded. 18. Admitted in part, denied in part. Defendant admits that Plaintiff inquired as to how to save e-mail messages from a program that Defendant did not install, however, denies any discussion regarding Plaintiffs business 19. Admitted. 20. Admitted in part, denied in part. Defendant admits that Plaintiff requested him to make a backup of the system, however, Defendant is without sufficient information, knowledge or belief to form an opinion as to the truthfulness of the allegation that Plaintiff was not convinced that her own backup had been complete and accurate. 21. Admitted in part, denied in part. Defendant admits that he informed Plaintiff of her choices regarding an attempted back-up, however Plaintiff was informed from the beginning that any data in her system was not warranted. 22. Admitted. 23. Admitted in part, denied in part. Defendant admits that he informed Plaintiff that the CPU was fixed, however, all information had been lost due to a defective hard drive. 24. Admitted. 25. Admitted in part, denied in part. Defendant admits that Plaintiff contacted him concerning software, however, Plaintiff was told that any further disks with software would have to be purchased. 26. Denied. Defendant is without sufficient information, knowledge or belief to form an opinion as to the truthfulness of the allegation contained in this paragraph and, therefore, the allegation is denied and proof demanded. 27. Denied. Defendant is without sufficient information, knowledge or belief to form an opinion as to the truthfulness of the allegation contained in this paragraph and, therefore, the allegation is denied and proof demanded. 28. Denied. Defendant is without sufficient information, knowledge or belief to form an opinion as to the truthfulness of the allegation contained in this paragraph and, therefore, the allegation is denied and proof demanded. WHEREFORE, answering defendant demands the entry of judgment in his favor dismissing plaintiffs complaint with prejudice and awarding costs and counsel fees. COUNT I BREACH OF CONTRACT 29. Answering Defendant incorporates herein by reference paragraphs 1 through 28, above as though the same were set forth herein at length. 30. Denied. Defendant is a wholesale distributor and engaged primarily in the business of hardware sales. 31. Admitted in part, denied in part. Defendant admits that Plaintiff purchased a central processing unit from him for the sum of $524.70. However, Defendant denies selling Plaintiff an entire computer and the existence of any agreement. 32. Denied. Defendant admits to agreeing to set up and install the central processing unit at Plaintiffs residence, however, denies agreeing to provide software programs that were not purchased. 33. Denied. Defendant is without sufficient information, knowledge or belief to form an opinion as to the truthfulness of the allegation contained in this paragraph and, therefore, the allegation is denied and proof demanded. By further answer, Defendant denies having any knowledge of Plaintiffs alleged business uses for the CPU. 34. The allegation of this paragraph is a conclusion oflaw to which no responsive pleading is required. To the extent that a response is required, the allegation is denied. By further answer, Plaintiffs CPU did not function properly due to a defective hard drive manufactured by Western Digital Corporation, Lake Forest, California, not the answering defendant. 35. The allegation of this paragraph is a conclusion of law to which no responsive pleading is required. To the extent that a response is required, the allegation is denied. 36. Denied. Defendant is without sufficient information, knowledge or belief to form an opinion as to the truthfulness of the allegation contained in this paragraph and, therefore, the allegation is denied and proof demanded. By further answer, Defendant informed Plaintiff that he could attempt to create a backup disk for the price of $25.00. 37. The allegation of this paragraph is a conclusion oflaw to which no responsive pleading is required. To the extent that a response is required, the allegation is denied. By further answer, Defendant denies damaging Plaintiffs business operations as the difficulties with Plaintiffs CPU were caused by a defective hard drive which was manufactured by Western Digital Corporation, in Lake Forest, California. WHEREFORE, answering defendant demands the entry of judgment in his favor dismissing plaintiffs complaint with prejudice and awarding costs and counsel fees. COUNT II NEGLIGENCE 38. Answering Defendant incorporates herein by reference paragraphs 1 through 28, above as though the same were set forth herein at length. 39. Denied. Defendant denies any inference that Plaintiff communicated to defendant her intentions as to the use of the central processing unit. 40. Denied. To the contrary, Defendant was informed of the importance of Plaintiffs records at the time the CPU was brought in for service, however, Plaintiff was informed that there was no warranty on any data at the time she purchased the CPU. 41. Denied. To the contrary, Defendant was informed of the importance of a backing up Plaintiffs records at the time the CPU was brought in for service, however, Plaintiff was informed that there was no warranty on any data at the time she purchased the CPU. 42. The allegation of this paragraph is a conclusion of law to which no responsive pleading is required. To the extent that a response is required, the allegation is denied. 43. The allegation of this paragraph is a conclusion of law to which no responsive pleading is required. To the extent that a response is required, the allegation is denied. 44. Denied. Defendant is without sufficient information, knowledge or belief to form an opinion as to the truthfulness of the allegation contained in this paragraph and, therefore, the allegation is denied and proof demanded. By further answer, Defendant avers there is no proof of a loss of four years of information. 45. Denied. Defendant is without sufficient information, knowledge or belief to form an opinion as to the truthfulness of the allegation contained in this paragraph and, therefore, the allegation is denied and proof demanded. 46. Denied. Defendant is without sufficient information, knowledge or be1iefto form an opinion as to the truthfulness of the allegation contained in this paragraph and, therefore, the allegation is denied and proof demanded. WHEREFORE, answering defendant demands the entry of judgment in his favor dismissing plaintiffs' complaint with prejudice and awarding costs and counsel fees. NEW MATTER - AFFIRMATIVE DEFENSE OF STATUTE OF FRAUDS 47. Defendant incorporates herein by reference paragraphs one through forty-six (46), above, as though the same were set forth herein at length. 48. Plaintiffs complaint seeks to recover four years worth of information for Plaintiffs business from Defendant, alleging defendant failed to perform under terms of an oral contract whereby Plaintiff purchased a CPU from Defendant in exchange for five hundred twenty-four dollars and 70/100. 49. The alleged contract on which plaintiff sues was oral in nature. Defendant has not attached to his complaint a written memorandum of such alleged contract, and there is no such memorandum. 50. The alleged contract on which plaintiff sues is governed by 13 Pa.C.S.A. 92201 which requires a written memorandum for such contract to be enforceable. 51. Because there is no such written memorandum, the provisions of Section 2201 have not be complied with in respect to this alleged contract, such that plaintiffs cause of action on the alleged contract is barred by the defense of the statute of frauds. WHEREFORE, answering defendant demands the entry of judgment in his favor dismissing plaintiffs complaint with prejudice and awarding costs and counsel fees. NEW MATTER 52. Defendant incorporates herein by reference paragraphs one through 51 above, as though the same were set forth herein at length. 53. If Plaintiff suffered injuries as alleged, plaintiffs injuries were caused by persons or entities unrelated to and not under the control of answering defendant, specifically Western Digital Corporation, 20511 Lake Forest Drive, Lake Forest, California, 92630-7741. 54. West Digital Corporation manufactured the central processing unit including the hard disk drive which is the subject of these proceedings. o. 55. Answering defendant was not responsible for the failure of the hard disk drive within Plaintiffs central processing unit. WHEREFORE, answering defendant demands the entry of judgment in his favor dismissing plaintiffs complaint with prejudice and awarding costs and counsel fees. Respectfully submitted, 'O/?~/{)I Date I I '=/!d; - ~' )') d!A./-fIl-( " (/t" "- ~I{ ~ irs n M. Sweigard, Squir~ KLINE LAW OFFICE 714 Bridge Street Post Office Box 461 New Cumberland, P A 17070-0461 (717) 770-2540 Attorney for Defendant '. VERIFICATION I verify that the statements made In the foregoing Defendant's Answer to Plaintiffs Amended Complaint 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. lold~ \0 t 2~ Date "" ... CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the Defendant's Answer to Plaintiffs Amended Complaint upon Plaintiff by depositing same in the United States Mail, first class, postage pre-paid on the lifl- day of October, 2001, from New Cumberland, Pennsylvania, addressed as follows: Cory J. Snook, Esquire 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 Attorney for Plaintiff ~~~1g~i,a~ KLINE LAW OFFICE 714 Bridge Street Post Office Box 461 New Cumberland, P A 17070-0461 (717) 770-2540 Attorney for Defendant Q} 7 V] ~ ~~ ~~~ )~. ~~~ L~_ ---' -< C) (":' c ') ., ..~ :'0 - f"'"". .j;:"" , ) - .l.., .I ~_j r',~ ~; -< r " KAREN POWELL, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW DALE NAGLE d/b/a ALLIANCE COMPUTERS, Defendant. NO. 01-3431 CIVIL TERM PLAINTIFF'S REPLY TO NEW MATTER AND NOW, comes the Plaintiff, Karen Powell, (hereinafter known as "Plaintiff') by and through her counsel, Gates & Associates, P.e., and respectfully submits the following Reply to New Matter: NEW MATTER- AFFIRMATIVE DEFENSE OF STATUTE OF FRAUDS 47. Paragraphs 1 through 46 of Plaintiff's Amended Complaint are hereby incorporated by reference as though more fully set forth herein. 48. Denied as stated. Plaintiff's Amended Complaint speaks for itself. 49. The averments of Paragraph 49 are conclusions oflaw to which no responsive pleading is required. To the extent that a response is required, the averments of Paragraph 49 are denied. 50. The averments of Paragraph 50 are conclusions oflaw to which no responsive pleading is required. To the extent that a response is required, the averments of Paragraph 50 are denied. By way of further response, Defendant accepted payment for the goods sold, thereby invoking 13 Pa.e.S.A. ~ 2201 (c)(3) and rendering the contract completely enforceable. . - " 51. The averments of Paragraph 51 are conclusions oflaw to which no responsive pleading is required. To the extent that a response is required, the averments of Paragraph 51 are denied. By way of further response, Defendant accepted payment for the goods sold, thereby invoking 13 Pa.C.S.A. ~ 2201 (c)(3) and rendering the contract completely enforceable. WHEREFORE, Plaintiff respectfully requests this honorable Court to enter judgment in her favor and against Defendant for damages in an amount not exceeding the threshold for compulsory arbitration under local rules, together with costs of suit, attorneys' fees, and such other relief as the Court deems appropriate. NEW MATTER 52. Paragraphs 1 through 51 ofPlaintitT's Amended Complaint and Reply to New Matter are hereby incorporated by reference as though more fully set forth herein. 53. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments stated in paragraph 53 of the Defendant's New Matter, and proof thereof is demanded if relevant. 54. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments stated in paragraph 54 of the Defendant's New Matter, and proof thereof is demanded if relevant. 55. The averments of Paragraph 55 are conclusions oflaw to which no responsive pleading is required. To the extent that a response is required, the averments of Paragraph 55 are denied. WHEREFORE, Plaintiff respectfully requests this honorable Court to enter judgment in 2 " her favor and against Defendant for damages in an amount not exceeding the threshold for compulsory arbitration under local rules, together with costs of suit, attorneys' fees, and such other relief as the Court deems appropriate. Respectfully submitted, GA TES & ASSOCIATES, P.e. ) d BY: Cory J. noo, squire Attorney J.D. #85734 1013 Mumma Road, Suite 100 Lemoyne, P A 17043 (717) 73 1-9600 (Attorneys for Plaintiff) Date: J1/ov. (> d-oO I 3 ~ .. VERIFICATION The undersigned hereby verifies that the facts averred in the foregoing document are true and correct to the best of her knowledge, information, and belief This verification is made subject to the penalties of 18 Pa. C.S.A. 94904 relating to unsworn falsification to authorities. Date: -~-d n G / (~ J I i '/j eU/n ~'<-!-0t KAREN POWELL 4 JI!o ... CERTIFICATE OF SERVICE I, Cory 1. Snook, of the law firm of Gates & Associates, P.e., hereby certifY that I served a true and correct copy of the foregoing document by First Class mail addressed to the following: Kirstin M. Sweigard, Esquire Kline Law Office 714 Bridge Street P.O. Box 461 New Cumberland, PA 17070-0461 DATED: ~v. 8" , 2001 Respectfully submitted, GATES & ASSOCIATES, P.e. BY: 0~~~ Supreme Court J.D. #85734 1013 Mumma Road, Suite 100 Lemoyne, P A 17043 (717) 731-9600 (Attorneys for Plaintiff) 5 ~ ~ - <A ()'\ () ......... ~ <: -Q (-. ..J ~~. -. -.,..,,. r/: ' -~~ ..: ~.(,) . ..-, (J'.