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HomeMy WebLinkAbout05-4943Carl S. Risch, Esquire Attorney I.D. No. 75901 Hillary A. Dean, Esquire Attorney I.D. No. 92878 MARTSON DEARDORFF WILLIAMS & OTTO 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs NED KERSTETTER and THE COMPUTER BARN, INC., Plaintiffs V. ROGER HOOPER and RANDY HOWARD, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA :NO. 05 - ? V3 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 Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCE FEE OR NO FEE: Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 F \FILES\DATAFILE\General\Current\I 1132. I.comp Created. 9/12/05 1 133 AM Revised: 9/21105 It :14AM Carl S. Risch, Esquire Attorney I.D. No. 75901 Hillary A. Dean, Esquire Attorney I.D. No. 92878 MARTSON DEARDORFF WILLIAMS & OTTO 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs NED KERSTETTER and : IN THE COURT OF COMMON PLEAS OF THE COMPUTER BARN, INC., : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. : NO. 05 - ?` y5E3 CIVIL TERM ROGER HOOPER and RANDY HOWARD, Defendants COMPLAINT 1. Plaintiff, The Computer Barn, Inc., is a Pennsylvania business with a registered address at 1460 Newville Road, Carlisle, Cumberland County, Pennsylvania, 17013. 2. Plaintiff Ned Kerstetter is an adult individual residing at 151 Mount Zion Road, Carlisle, Pennsylvania, 17013. Mr. Kerstetter is also the chief executive officer of The Computer Barn, Inc. 3. Defendant Roger Hooper is an adult individual residing at 1541 Thompson Lane, Mechanicsburg, Pennsylvania, 17055. 4. Defendant Randy Howard is an adult individual residing at 5 Jesse Lane #564, Halifax, Pennsylvania, 17032. 5. On or around the month of May, 2005, Mr. Kerstetter contracted with Defendant Hooper to sell Hooper's baseball cards, sports paraphernalia, and coins on Mr. Kerstetter's Ebay website, using Mr. Kerstetter's Ebay seller name and passcode. 6. Mr. Kerstetter and Hooper agreed that Kerstetter would receive payment for the listing and sale of each of Hooper's items. 7. The agreement provided that Kerstetter would allow an item to be listed on the Ebay website. When the Ebay "auction" ended, Hooper would package and send the purchaser the item or items they had ordered through the website auction. Kerstetter was to receive payment from the purchaser for the items at his business address, which he would then remit to Hooper, who would pay him for listing and selling the item. 8. Unknown to Plaintiffs at the time, Hooper placed The Computer Barn, Inc.'s address as the return address on the packaging of all items he sent to purchasers. 9. Hooper involved Howard in the selling of Hooper's items on Kerstetter's Ebay site. 10. Hooper and Howard acted as an enterprise associated with the listing, packaging, selling, and shipping of the baseball cards, sports paraphernalia, coins and other items. 11. Plaintiffs listed and sold over 70 items for Defendants on the Ebay auction site. 12. At the time Defendants contracted with Plaintiffs to sell the items, Defendants knew or had reason to know that many of the items were either counterfeit, intentionally mispackaged/repackaged, described incorrectly, less valuable than advertised or completely valueless. 13. On or around the beginning of July, 2005, items began to be returned to The Computer Barn, as purchasers realized that the items were either counterfeit, repackaged/resealed by Defendants, or otherwise misadvertised, unauthentic, or valueless. 14. Plaintiff contacted Defendants regarding the returned items and asked Defendants to refund the purchasers' monies. Defendants refused and re-shipped the items to the purchasers under Plaintiffs' names. 15. Plaintiff then began to send refunds to the purchasers of the items; to date, Plaintiff has refunded $58,233.64 to more than 37 purchasers. COUNTI Racketeer Influenced and Corrupt Organizations Act (RICO) 16. Pennsylvania state courts exercise concurrent jurisdiction over civil actions brought under the RICO Act. Tafflin v. Levitt, 493 U.S. 455 (1990). 17. Defendants Hooper and Howard have acted as an "enterprise," as defined in 18 U.S.C.A. § 1961(4). 18. Defendants have engaged in a pattern of racketeering activity, in violation of 18 U.S.C.A. §1962 including, but not limited to: a. Mail fraud; b. Trafficking in goods or services bearing counterfeit marks; C. Racketeering; d. Interference with commerce; e. Conspiracy. 19. Each of the Defendants have received income which is derived, both directly and indirectly, from the pattern of racketeering activity described in paragraph 18 of this Complaint and has used and/or invested, directly and indirectly, such income in the operations of the enterprise and in the maintenance, furtherance, and operation of its affairs in violation of 18 U.S.C. §1962(a). 20. Defendants' pattern of racketeering activity included the commission of over 37 predicate acts of racketeering, which took place over a five month period and have not been remedied by Defendants. 21. By reason of the above conduct, Plaintiffs have been injured, and are in danger of suffering additional injury in their business and property. 22. Plaintiffs have been directly injured in their business and property by the use and investment of Plaintiffs' interest in and control of Defendants' enterprise which affected interstate commerce; to wit: the use of Plaintiffs' Ebay account to sell Defendants' fraudulent and/or counterfeit items in an auction on the internet. WHEREFORE, Plaintiffs demand judgment be entered in their favor and against Defendants for damages in an amount triple of $58,233.64, plus attorney's fees, interest and costs. COUNT II Breach of Contract 23. Plaintiff incorporates by reference the allegations contained in paragraphs 1 through 16 above as though set forth at length. 24. Plaintiffs listed, sold, and shipped Defendants' items on its Ebay website. 25. Defendants misrepresented and/or counterfeited the items to be sold on Plaintiffs' website, and have failed to make any reimbursements for the misrepresented or counterfeit goods. 26. Defendants have breached their contractual duty to sell genuine items and to make good on items which were misrepresented and/or counterfeit. 27. As a direct and proximate result of Defendants' breach, Plaintiffs have suffered an economic loss of not less than $58,233.64. WHEREFORE, Plaintiffs demand judgment be entered in their favor and against Defendants for damages in an amount of $58,233.64, plus attorney's fees, interest and costs. COUNT III Fraud 28. Plaintiff incorporates by reference the allegations contained in paragraphs 1 through 16 above as though set forth at length. 29. At all times material hereto, Defendants intended to deceive and defraud Plaintiffs by falsely and fraudulently representing that the sports memorabilia and coins were authentic items to be sold on Plaintiffs' Ebay website. 30. Plaintiffs justifiably relied upon Defendants' representations which were intended to induce, and did induce, Plaintiffs to do business with Defendants and to sell Defendants' misrepresented items on the Ebay website. 31. At the time that Defendants tendered the aforesaid sports memorabilia, coins, and items to Plaintiffs, the items were either counterfeit, misrepresented, packaged incorrectly, or valueless. 32. Defendants knew, or had reasonable cause to know, that the sports memorabilia, coins, and items were either counterfeit, misrepresented, packaged incorrectly, or valueless. 33. Plaintiffs were induced to sell Defendants' items and to ship the items to each purchaser based upon Defendants' aforesaid misrepresentations. 34. Plaintiffs did not know, nor did they have reasonable cause to know that the items were either counterfeit, misrepresented, packaged incorrectly, or valueless. 35. As a result of Defendants' fraudulent conduct, Plaintiffs sustained substantial monetary losses including, but not limited to, the loss of $58,233.64. WHEREFORE, Plaintiffs demand judgment be entered in their favor and against Defendants for damages in an amount of $58,233.64, plus attorney's fees, interest and costs. MARTSON A ORFF WILLIAMS & OTTO By CQ-6 Carl C. Risch, Esquire Attorney I.D. No. 75901 Hillary A. Dean, Esquire Attorney I.D. No. 92878 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: C? -),\ -0j Attorneys for Plaintiffs VERIFICATION The foregoing Complaint is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of the document is that of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the document is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities, which provides that if I make knowingly false averments, I may be subject to criminal penalties. ?Q'2'Rx-- Ned Kerstetter c? V r'^ c_? cr+ '77 • F f ? - r ` -?-y 1-Z % JO , V +s a l?. ± rn " tv } REGEIVEC SEP 2 2 2005 MDPIr NED KERSTETTER and COMPUTER BARN, INC., Plaintiffs V, ROGER HOOPER and RANDY HOWARD, Defendants IN THE COURT OF COMMON PLEAS THE OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05 - 4943 ANSWER TO COMPLAINT AND NOW this 6th day of October, 2005 comes the defendants, Roger Hooper and Randy Howard, by and through their attorney Joseph J. Dixon Esq. who respectfully responds to the complaint as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. By way of further additional answer, Hooper agreed to pay all Ebay fees. 7. Admitted. 8. Admitted in part and denied in part. Is admitted that Hooper placed Computer Bam, Inc.'s address as the return address on the packaging of all items. This was done because that was also the address where payment was to be tendered. By way of further additional answer Plaintiff was aware of this at the time. 9. Admitted in part and denied in part. Is admitted that Randy Howard became involved in the transaction. By way of further additional answer however, all Randy Howard did was type the Ebay listings on to Ebay. In addition Mr. Howard would answer any emails that could not be answered by Mr. Kerstetter. 10. Denied. There was no enterpri se between the defendants, Hooper and Howard. The defendant Howard was a typist on behalf of Mr. Hooper. By way of further additional answer none of the items sold were owned by Mr. Howard. 11. Denied. To the contrary the Plaintiff listed more then 500 items for the Defendant on the Ebay auction site. 12. Denied. To the contrary the Defendant always accurately represented the items to be sold on the Ebay account. 13. Denied. Said facts, after reasonable investigation the Defendants are unable to ascertain the truthfulness of these averments. This information is within the exclusive control of the Plaintiffs and proof of same is demanded at trial. 14. Admitted in part and denied in part. It is admitted that Plaintiff contacted defendant Hooper concerning the returned items. More then $15,000 of refunds were issued. These refunds were issued for business reasons and not because the items were mis-advertised, unauthenticated, or valueless. There after the defendant Hooper refused any additional refunds because the requests were beyond a reasonable deadline of 30 days. 15. Denied. After reasonable investigation the Defendants are unable to ascertain the truthfulness of this averment. These facts are within the exclusive knowledge and control of the Plaintiffs and proof of the same is demanded at trial. COUNTI 16. Denied. Said averment is a conclusion of law which requires no response. 17. Denied. Said averment is a conclusion of law which requires no response. To the extent however that a response is required the Defendants never acted as an enterprise. 18. Denied. Said averment is a conclusion of law which requires no response. To the extent however that a response is required the Defendants were never involved in mail fraud, trafficking in goods or services bearing counterfeit marks, racketeering, interference with commerce, or conspiracy. 19. Denied. Said averment is a conclusion of law which requires no response. 20. Denied. Said averment is a conclusion of law which requires no response. To the extent however that a response is required the Defendants never committed any acts of racketeering. 21. Denied. After reasonable investigation the Defendants are unable to ascertain the truthfulness of this averment and proof of the same is demanded at trial. 22. Denied. Said averment is a conclusion of law which requires no response. To the extent however that a response is required said facts are within the exclusive knowledge and control of the Plaintiff and proof of the same is demanded at trial. WHEREFORE, Defendants pray this Honorable Court to dismiss the complaint. COUNT II 23. No response required. 24. Admitted. 25. Denied. Said averment is a conclusion of law which requires no response. To the extent however that a response is required the Defendants always accurately represented the items that were sold through the Ebay website. 26. Denied. Said averment is a conclusion of law which requires no response. To the extent however that a response is required the Defendants always accurately represented the quality of the items that were sold through the Ebay website. 27. Denied. Said averment is exclusively within the knowledge and control of the Plaintiffs and proof of the same is demanded at trial. WHEREFORE, Defendants pray this Honorable Court to dismiss the complaint. COUNT III 28. No response required. 29. Denied. Said averment is a conclusion of law which requires no response. To the extent however that a response is required the Defendants always accurately represented the items to be sold and the Plaintiff made significant money on other transactions with the defendant Hooper. 30. Denied. Said averment is a conclusion of law which requires no response. To the extent however that a response is required the acts and conduct of the Defendants were honest and reasonable under the circumstances. 31. Denied. To the contrary all items the defendant Hooper gave to the Plaintiff were honestly represented, not counterfeit, packaged correctly, and had value. 32. Denied. To the contrary the Defendants thought all items were properly represented under the circumstances. 33. Denied. Said facts are within the exclusive knowledge and control of the Plaintiffs and proof of the same is demanded at trial. 34. Denied. Said facts are within the exclusive knowledge and control of the Plaintiffs and proof of the same is demanded at trial. 35. Denied. Said facts are within the exclusive knowledge and control of the Plaintiffs and proof of the same is demanded at trial. WHEREFORE, Defendants pray this Honorable Court to dismiss this complaint. Respectfully submitted, By: Joseph J. Dixon, Esquire 126 State Street Harrisburg, PA 17101 VERIFICATION I verify that the statements made in this An ctJC? , are true and correct. I understand that false statements herein are made subject to the penalty of 18 Pa. C.S. §4904, relating to unworn falsification to authorities. Dated: ! 0 6' a:i VERIFICATION I verify that the statements made in this l k .5 ttQ are true and correct. I understand that false statements herein are made subject to the penalty of 18 Pa. C.S. §4904, relating to unswom falsification to authorities. Dated: G` IG CERTIFICATE OF SERVICE AND NOW, this 6`h day of October, 2005, I, Joseph J. Dixon, Esquire, hereby certify that I have served a true and correct copy of the foregoing document this day by depositing the same in the United States Mail, first class, postage prepaid, in the Post Office at Harrisburg, Pennsylvania, addressed to: CARL S. RISCH, ESQ. HILLARY A. DEAN, ESQ. MARTSON DEARDORFF WILLIAMS AND OTTO 10 EAST HIGH STREET CARLISLE, PA 17013 ATTORNEYS FOR THE PLAINTIFF The Law Office of Joseph J. Dixon, Esquire By: oseph J. Attorney ID No. 28290 126 State Street Harrisburg, PA 17101 (717) 236-8515 Attorney for Defendant i ,(n C., a r.. _ SHERIFF'S RETURN - REGULAR CASE NO: 2005-04943 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KERSTETTER NED ET AL VS HOOPER ROGER ET AL VALERIE WEARY , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon HOOPER ROGER the DEFENDANT , at 1904:00 HOURS, on the 27th day of September, 2005 at 1541 THOMPSON LANE MECHANICSBURG, PA 17055 by handing to ROGER HOOPER 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: So Answers: Docketing 18.00 Service 11.20 --„?? Affidavit .00` Surcharge 10.00 R. Thomas Kline .00 39.20 10/06/2005 MDW&O Sworn and Subscribed to before By: me this day of Deputy Sheriff f SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2005-04943 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KERSTETTER NED ET AL VS HOOPER ROGER ET AL R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT HOWARD RANDY but was unable to locate Him deputized the sheriff of DAUPHIN to wit: in his bailiwick. He therefore County,. Pennsylvania, to serve the within COMPLAINT & NOTICE On October 6th , 2005 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: So a rs: Docketing 6.00 Out of County 9.00 Surcharge 10.00 R. s Kline Dep Dauphin Co 43.25 S er' f of Cumberland County Postage .74 V V . % J 10/06/2005 MDW&O Sworn and subscribed to before me this day of rtt??. ,1-,& G A.D. Pr of ry J In The Court of Common Pleas of Cumberland County, Pennsylvaiila Ned Kerstetter et al vs. Roger Hooper et al SERVE: Randy Howard No. 05-4943 civil Now, September 23, 2005 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, within upon at by handing to a and made known to copy of the original So answers, the contents thereof. Sheriff of Sworn and subscribed before me this day of , 20 COSTS SERVICE _ MILEAGE _ AFFIDAVIT 20 , at o'clock M. served the County, PA (j)fftCE of t4P S4Prif{ Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 780-6590 fax: (717) 255-2889 Jack Lotwick Sheriff Commonwealth of Pennsylvania County of Dauphin KERSTETTER NED ET AL vs HOWARD RANDY Sheriff's Return No. 1681-T - - -2005 OTHER COUNTY NO. 05-4943 CIVIL Charles E. Sheaffer Chief Deputy Michael W. Rinehart Assistant Chief Deputy AND NOW: September 29, 2005 at 2:50PM served the within NOTICE & COMPLAINT HOWARD RANDY upon by personally handing to RANDY HOWARD, DEFT 1 true attested copy(ies) of the original NOTICE & COMPLAINT and making known to him/her the contents thereof at 5 JESSE LANE #564 HALIFAX, PA 17032-0000 Sworn and subscribed to before me this 4TH day of OCTOBER, 2005 s 11 A----I NOTARIAL SEAL MARY JANE SNYDER, Notary Public Highspire, Dauphin County My Commission Expires Sept. 1, 2006 So Answers, ? ?* e,;? Sheriff of Dauphin County, Pa. r By Deputy Sheriff Sheriff's Costs:$43.25 PD 09/27/2005 RCPT NO 210879 MSE Curtis R. Long Prothonotary office of the i9rotbonotarp ?utrt?erranb ?Coictttp Renee K. Simpson Deputy Prothonotary John E. Slike Solicitor -CIS, - 'q 9%3 CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 29TH DAY OF OCTOBER 2008 AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R C P 230.2 BY THE COURT, CURTIS R. LONG PROTHONOTARY One Courthouse Square - Carlisle, Pennsylvania 17013 - (717) 240-6195 - Fax (717) 240-6573 F \FILES\Clients\I 1132 The Computer Barn, Inc\11132.I.petition David A. Fitzsimons, Esquire 1 ~g. "a r Attorney I.D. No. 41722 1 . f f Katie J. Maxwell, Esquire Attorney I.D. No. 206018 MARTSON DEARDORFF WILLIAMS OTTO GILROY & 8Ab MARTSON LAW OFFICES E 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs NED KERSTETTER and THE COMPUTER BARN, INC., Plaintiffs V. ROGER HOOPER and RANDY HOWARD, Defendants rI`.F,) FF1i,LE U.„ f r 1 .. c, 2 1 3 ?`xl` t'1 'fix k \ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05 - 4943 CIVIL TERM PETITION TO REINSTATE AN INACTIVE CASE AND NOW, comes the Plaintiff, The Computer Barn, by and through its attorneys, MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, and in support of its Petition to Reinstate an Inactive Case, avers as follows: 1. Plaintiffs are The Computer Barn Inc., a Pennsylvania business, and Ned Kerstetter, an adult individual with a place of business at 1460 Newville Road, Carlisle, Cumberland County, Pennsylvania, 17013. 2. Defendant Roger Hooper is an adult individuation residing at 1541 Thompson Lane, Mechanicsburg, Pennsylvania, 17055. 3. Defendant Randy Howard is an adult individual with a last known address of 5 Jesse Lane #564, Halifax, Pennsylvania, 17032. 4. This case was initiated on September 27, 2005, by service of Complaint on Defendant. A copy of the Complaint is attached as Exhibit "A." 5. Defendant filed an Answer on October 6, 2005. A copy of Defendant's Answer is attached as Exhibit "B." 6. On or about January 2008, Plaintiffs put pursuit of the civil action on hold pending prosecution of Defendant Hooper in a criminal action actively investigated commencing in and charges being filed in May 2008. 7. The facts and circumstances surrounding the allegations in Plaintiff's Complaint are similar to those that formed the basis for the Criminal action filed against Mr. Hooper in 2008 and upon which he was recently convicted. 8. Sentencing includes payment of restitution and partial damage. Mr. Hooper's criminal case is currently scheduled for a Motion for Reconsideration before the Honorable J. Wesley Oler, Jr., on April 20, 2011. 9. As part of the sentence against Mr. Hooper in the above-referenced criminal case, Mr. Hooper is ordered to pay Ned Kerstetter, the sole proprietor of The Computer Barn, restitution in the amount of $63,000.00 and to another victim of Hooper's actions, $6,500.00. 10. Mr. Kerstetter has costs, expenses, and potential punitive damages which are not recoverable under a criminal restitution order and which he hopes to recover through this civil action. 11. Plaintiff was initially represented by Carl C. Risch, Esquire, formerly of Martson Law Offices. Attorney Risch filed the Complaint on behalf of Plaintiff in 2005. 12. Due to the ongoing criminal investigation against Mr. Hooper, the civil action became inactive awaiting the outcome of the criminal case. 13. Undersigned counsel became aware on Thursday, January 24, 2011, that this case had been terminated due to inactivity by Order dated October 29, 2008 (Copy attached as Exhibit "C.") 14. After investigation and review of files and office procedures, undersigned counsel are not aware of any notices to terminate received by Attorney Risch or Martson Law Offices prior to the Order of Termination being entered. 15. Counsel for Plaintiffs would have immediately replied to the Prothonotary's office with a Statement of Intention to Proceed with this case, had the office become aware that this case was on the Purge List. 16. Plaintiff's counsel only became aware of the Order upon a review of the docket conducted as part of his preparation to counsel client on close of the criminal trial. No actual copies of notices or the Order were identified in a search of the offices of counsel; and review of the Prothonotary case file revealed no letters or Notices, other than the Order itself which, upon investigation, was not received in counsel's offices. 17. Moreover, the Prothonotary's office noted that Defendant is unrepresented and presumably received a notice, when in fact the record reflects that Defendant is represented by Joseph Dixon, Esquire 18. Under Pa. R.C.P. 230.2(b)(1), counsel of record shall be notified 60 days prior to the proposed termination date. 19. Neither the online docket nor the paper file in the Prothonotary's office contain any copies of notices sent to Attorney Risch or Martson Law Offices generally, regarding termination of this case. 20. The Prothonotary office's only note (and there are no copies of archived notices) in its internal file notes that final publication of Notice to Terminate would have been on September 16, 2008, which is not within the sixty day period prior to termination as required by the Rules. 21. Due to the fact that Plaintiffs' counsel were both unaware of this case's lisiting on the Purge List and the fact that the case was ultimately terminated in October 2008, counsel were unable to petition the Court to reinstate this action within 30 days of the entry of the Order of Termination. WHEREFORE, Plaintiff respectfuly requests this Honorable Court to reinstate this action pursuant to Pa. R.C.P. 230.2(d)(3). MARTSON LA O ES By: David A. Fitzsimons, Esquire Attorney I.D. Nod \YA'Z-Q - Katie J. Maxwell, Esquire Attorney I.D. No. 206018 10 East High Street Carlisle, PA 17013 (717) 243-3341 Dates c?? Attorneys for Plaintiffs EXHIBIT "A" A Carl S. Risch, Esquire , Attorney I.D. No. 75901 Hillary A. Dean, Esquire Attorney I.D. No. 92878 MARTSON DEARDORFF, WILLIAMS & OTTO 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs NED KERSTETTER and : IN THE COURT OF COMMON PLEAS OF THE COMPUTER BARN, INC., : CUMBERLAND COUNTY, PENNSYLV ANIA; Plaintiffs ='u 7u, ? -+ -r, , V. :NO. 05 - CIVIL TERM N C' ROGER HOOPER and RANDY HOWARD , Defendants r ; 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 Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO. OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCE FEE OR NO FEE: Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 F \FILES\DATAFILE\General\Current\11132. I.comp Created: 9/12/05 11 33 AM Revised 9/21/05 11:14AM Carl S. Risch, Esquire Attorney I.D. No. 75901 Hillary A. Dean, Esquire Attorney I.D. No. 92878 MARTSON DEARDORFF WILLIAMS & OTTO 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs NED KERSTETTER and THE COMPUTER BARN, INC., Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ROGER HOOPER and RANDY HOWARD, Defendants :NO.05- COMPLAINT CIVIL TERM 1. Plaintiff, The Computer Barn, Inc., is a Pennsylvania business with a registered address at 1460 Newville Road, Carlisle, Cumberland County, Pennsylvania, 17013. 2. Plaintiff Ned Kerstetter is an adult individual residing at 151 Mount Zion Road, Carlisle, Pennsylvania, 17013. Mr. Kerstetter is also the chief executive officer of The Computer Barn, Inc. 3. Defendant Roger Hooper is an adult individual residing at 1541 Thompson Lane, Mechanicsburg, Pennsylvania, 17055. 4. Defendant Randy Howard is an adult individual residing at 5 Jesse Lane #564, Halifax, Pennsylvania, 17032. 5. On or around the month of May, 2005, Mr. Kerstetter contracted with Defendant Hooper to sell Hooper's baseball cards, sports paraphernalia, and coins on Mr. Kerstetter's Ebay website, using Mr. Kerstetter's Ebay seller name and passcode. 6. Mr. Kerstetter and Hooper agreed that Kerstetter would receive payment for the listing and sale of each of Hooper's items. 7. The agreement provided that Kerstetter would allow an item to be listed on the Ebay website. When the Ebay "auction" ended, Hooper would package and send the purchaser the item or items they had ordered through the website auction. Kerstetter was to receive payment from the purchaser for the items at his business address, which he would then remit to Hooper, who would pay him for listing and selling the item. 8. Unknown to Plaintiffs at the time, Hooper placed The Computer Barn, Inc.'s address as the return address on the packaging of all items he sent to purchasers. 9. Hooper involved Howard in the selling of Hooper's items on Kerstetter's Ebay site. 10. Hooper and Howard acted as an enterprise associated with the listing, packaging, selling, and shipping of the baseball cards, sports paraphernalia, coins and other items. 11. Plaintiffs listed and sold over 70 items for Defendants on the Ebay auction site. 12. At the time Defendants contracted with Plaintiffs to sell the items, Defendants knew or had reason to know that many of the items were either counterfeit, intentionally mispackaged/repackaged, described incorrectly, less valuable than advertised or completely valueless. 13. On or around the beginning of July, 2005, items began to be returned to The Computer Barn, as purchasers realized that the items were either counterfeit, repackaged/resealed by Defendants, or otherwise misadvertised, unauthentic, or valueless. 14. Plaintiff contacted Defendants regarding the returned items and asked Defendants to refund the purchasers' monies. Defendants refused and re-shipped the items to the purchasers under Plaintiffs' names. 15. Plaintiff then began to send refunds to the purchasers of the items; to date, Plaintiff has refunded $58,233.64 to more than 37 purchasers. COUNTI Racketeer Influenced and Corrupt Organizations Act (RICO) 16. Pennsylvania state courts exercise concurrent jurisdiction over civil actions brought under the RICO Act. Tafflin v. Levitt, 493 U.S. 455 (1990). 17. Defendants Hooper and Howard have acted as an "enterprise," as defined in 18 U.S.C.A. § 1961(4). 18. Defendants have engaged in a pattern of racketeering activity, in violation of 18 U.S.C.A. § 1962 including, but not limited to: a. Mail fraud; b. Trafficking in goods or services bearing counterfeit marks; C. Racketeering; d. Interference with commerce; e. Conspiracy. 19. Each of the Defendants have received income which is derived, both directly and indirectly, from the pattern of racketeering activity described in paragraph 18 of this Complaint and has used and/or invested, directly and indirectly, such income in the operations of the enterprise and in the maintenance, furtherance, and operation of its affairs in violation of 18 U.S.C. § 1962(a). 20. Defendants' pattern of racketeering activity included the commission of over 37 predicate acts of racketeering, which took place over a five month period and have not been remedied by Defendants. 21. By reason of the above conduct, Plaintiffs have been injured, and are in danger of suffering additional injury in their business and property. 22. Plaintiffs have been directly injured in their business and property by the use and investment of Plaintiffs' interest in and control of Defendants' enterprise which affected interstate commerce; to wit: the use of Plaintiffs' Ebay account to sell Defendants' fraudulent and/or counterfeit items in an auction on the internet. WHEREFORE, Plaintiffs demand j udgment be entered in their favor and against Defendants for damages in an amount triple of $58,233.64, plus attorney's fees, interest and costs. COUNT II Breach of Contract 23. Plaintiff incorporates by reference the allegations contained in paragraphs 1 through 16 above as though set forth at length. 24. Plaintiffs listed, sold, and shipped Defendants' items on its Ebay website. 25. Defendants misrepresented and/or counterfeited the items to be sold on Plaintiffs' website, and have failed to make any reimbursements for the misrepresented or counterfeit goods. 26, Defendants have breached their contractual duty to sell genuine items and to make good on items which were misrepresented and/or counterfeit. 27. As a direct and proximate result of Defendants' breach, Plaintiffs have suffered an economic loss of not less than $58,233.64. WHEREFORE, Plaintiffs demand judgment be entered in their favor and against Defendants for damages in an amount of $58,233.64, plus attorney's fees, interest and costs. COUNT III Fraud 28. Plaintiff incorporates by reference the allegations contained in paragraphs 1 through 16 above as though set forth at length. 29. At all times material hereto, Defendants intended to deceive and defraud Plaintiffs by falsely and fraudulently representing that the sports memorabilia and coins were authentic items to be sold on Plaintiffs' Ebay website. 30. Plaintiffs justifiably relied upon Defendants' representations which were intended to induce, and did induce, Plaintiffs to do business with Defendants and to sell Defendants' misrepresented items on the Ebay website. 31. At the time that Defendants tendered the aforesaid sports memorabilia, coins, and items to Plaintiffs, the items were either counterfeit, misrepresented, packaged incorrectly, or valueless. 32. Defendants knew, or had reasonable cause to know, that the sports memorabilia, coins, and items were either counterfeit, misrepresented, packaged incorrectly, or valueless. 33. Plaintiffs were induced to sell Defendants' items and to ship the items to each purchaser based upon Defendants' aforesaid misrepresentations. 34. Plaintiffs did not know, nor did they have reasonable cause to know that the items were either counterfeit, misrepresented, packaged incorrectly, or valueless. 35. As a result of Defendants' fraudulent conduct, Plaintiffs sustained substantial monetary losses including, but not limited to, the loss of $58,233.64. WHEREFORE, Plaintiffs demand judgment be entered in their favor and against Defendants for damages in an amount of $58,233.64, plus attorney's fees, interest and costs. MARTSON A ORFF WILLIAMS & OTTO By Carl C. Risch, Esquire Attorney I.D. No. 75901 Hillary A. Dean, Esquire Attorney I.D. No. 92878 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: C? _? -i Attorneys for Plaintiffs VERIFICATION The foregoing Complaint is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of the document is that of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the document is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities, which provides that if I make knowingly false averments, I may be subject to criminal penalties. xv-2'R?- -- - Ned Kerstetter EXHIBIT "B" NED KERSTETTER and COMPUTER BARN, INC., Plaintiffs V. ROGER HOOPER and RANDY HOWARD, Defendants IN THE COURT OF COMMON PLEAS THE OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05 - 4943 ANSWER TO COMPLAINT AND NOW this 6th day of October, 2005 comes the defendants, Roger Hooper and Randy Howard, by and through their attorney Joseph J. Dixon Esq. who respectfully responds to the complaint as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. By way of further additional answer, Hooper agreed to pay all Ebay fees. 7. Admitted. 8. Admitted in part and denied in part. Is admitted that Hooper placed Computer Barn, Inc.'s address as the return address on the packaging of all items. This was done because that was also the address where payment was to be tendered. By way of further additional answer Plaintiff was aware of this at the time. 9. Admitted in part and denied in part. Is admitted than Randy Howard became involved in the transaction. By way of further additional answer however, all Randy Howard did was type the Ebay listings on to Ebay. In addition Mr. Howard would answer any emails that could not be answered by Mr. Kerstetter. 10. Denied. There was no enterprise between the defendants, Hooper and Howard. The defendant Howard was a typist on behalf of Mr. Hooper. By way of further additional answer none of the items sold were owned by Mr. Howard. 11. Denied. To the contrary the Plaintiff listed more then 500 items for the Defendant on the Ebay auction site. 12. Denied. To the contrary the Defendant always accurately represented the items to be sold on the Ebay account. 13. Denied. Said facts, after reasonable investigation the Defendants are unable to ascertain the truthfulness of these averments. This information is within the exclusive control of the Plaintiffs and proof of same is demanded at trial. 14. Admitted in part and denied in part. It is admitted that Plaintiff contacted defendant Hooper concerning the returned items. More then $15,000 of refunds were issued. These refunds were issued for business reasons and not because the items were mis-advertised, unauthenticated, or valueless. There after the defendant Hooper refused any additional refunds because the requests were beyond a reasonable deadline of 30 days. 15. Denied. After reasonable investigation the Defendants are unable to ascertain the truthfulness of this averment. These facts are within the exclusive knowledge and control of the Plaintiffs and proof of the same is demanded at trial. COUNTI 16. Denied. Said averment is a conclusion of law which requires no response. 17. Denied. Said averment is a conclusion of law which requires no response. To the extent however that a response is required the Defendants never acted as an enterprise. 18. Denied. Said averment is a conclusion of law which requires no response. To the extent however that a response is required the Defendants were never involved in mail fraud, trafficking in goods or services bearing counterfeit marks, racketeering, interference with commerce, or conspiracy. 19. Denied. Said averment is a conclusion of law which requires no response. 20. Denied. Said averment is a conclusion of law which requires no response. To the extent however that a response is required the Defendants never committed any acts of racketeering. 21. Denied. After reasonable investigation the Defendants are unable to ascertain the truthfulness of this averment and proof of the same is demanded at trial. 22. Denied. Said averment is a conclusion of law which requires no response. To the extent however that a response is required said facts are within the exclusive knowledge and control of the Plaintiff and proof of the same is demanded at trial. WHEREFORE, Defendants pray this Honorable Court to dismiss the complaint. COUNT II 23. No response required. 24. Admitted. 25. Denied. Said averment is a conclusion of law which requires no response. To the extent however that a response is required the Defendants always accurately represented the items that were sold through the Ebay website. 26. Denied. Said averment is a conclusion of law which requires no response. To the extent however that a response is required the Defendants always accurately represented the quality of the items that were sold through the Ebay website. 27. Denied. Said averment is exclusively within the knowledge and control of the Plaintiffs and proof of the same is demanded at trial. WHEREFORE, Defendants pray this Honorable Court to dismiss the complaint. COUNT III 28. No response required. 29. Denied. Said averment is a conclusion of law which requires no response. To the extent however that a response is required the Defendants always accurately represented the items to be sold and the Plaintiff made significant money on other transactions with the defendant Hooper. 30. Denied. Said averment is a conclusion of law which requires no response. To the extent however that a response is required the acts and conduct of the Defendants were honest and reasonable under the circumstances. 31. Denied. To the contrary all items the defendant Hooper gave to the Plaintiff were honestly represented, not counterfeit, packaged correctly, and had value. 32. Denied. To the contrary the Defendants thought all items were properly represented under the circumstances. 33. Denied. Said facts are within the exclusive knowledge and control of the Plaintiffs and proof of the same is demanded at trial. 34. Denied. Said facts are within the exclusive knowledge and control of the Plaintiffs and proof of the same is demanded at trial. 35. Denied. Said facts are within the exclusive knowledge and control of the Plaintiffs and proof of the same is demanded at trial. WHEREFORE, Defendants pray this Honorable Court to dismiss this complaint. Respectfully submitted, By: Joseph J. Dixon, Esquire 126 State Street Harrisburg, PA 17101 VERIFICATION I verify that the statements made in this Aw ctx? , are true and _ come,} .that,false_.statemeatsherem are.made.subect to the penalty of 18 Pa. C .S. o imp ."? WiiW?w-K MCI r f Y .?. . WN -M i." ? t0$ZVI3V1/0111 'OII t0?8UthOIltlCS •, , t , '? ? - ? Z S al - e A VERIFICATION I verify that the statements made in this YIW-W 4 i f , are true and correct. I understand that false statements herein are made subject to the penalty of 18 Pa. C.S. §4904, relating to unworn.. falsification to; authorities. Dated.__? U ?i / ( i A CERTIFICATE OF SERVICE AND NOW; this-6 `-day of October, 2005; I,-Joseph J _D' '' ,Esquire; hereby certify that I have served a true and.correct copy-Qf the foregoing. document this -Aay by.depositing the same in the United States Mail, first class, postage prepaid in the Post Office at Harrisburg, Pennsylvania, addressed to: CARL S. RISCH, ESQ. HILLARY A. DEAN, ESQ. MARTSON DEARDORFF WILLIAMS AND OTTO 10 EAST HIGH STREET CARLISLE, PA 17013 . ATTORNEYS FOR THE PLAINTIFF The Law Office of Joseph J. Dixon, Esquire By: Joseph J.11?? Attorney ID No. 28290 126 State Street Harrisburg, PA 17101 (717) 236-8515 Attorney for Defendant EXHIBIT "C" Curtis IL Long Prothonotary Offire of the i9rotbonotarp Cumberfanb Countp Renee IL Simpson Deputy Prothonotary John E. Slake Solicitor CS- 49%3 CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 29T" DAY OF OCTOBER 2008 AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WrrH PA RCP230.2 BY THE COURT, CURTIS R. LONG PROTHONOTARY One Courthouse Square • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6573 CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Petition to Reinstate an Inactive Case was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Joseph Dixon, Esquire 126 State Street Harrisburg, PA 17101 Mr. Randy Howard 5 Jesse Lane #564 Halifax, PA 17032 MARTSON LAW OFFICES By M. Price T n East High Street Carlisle, PA 17013 (717) 243-3341 Dated: S/// • - I F:\FILES\Clients\I 1132 The Computer Barn, Inc\t 1132, Lpra David A. Fitzsimons, Esquire Attorney I.D. No. 41722 Katie J. Maxwell, Esquire Attorney I.D. No. 206018 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs ' I FPI' 28 PM 2: 49, ! IMBBL.ttivU .f _P H S YInfA N' I NED KERSTETTER and THE COMPUTER BARN, INC., Plaintiffs V. ROGER HOOPER and RANDY HOWARD, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05 - 4943 CIVIL TERM PRAECIPE TO ATTACH AMENDMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: You are directed to attach the Amended Petition to the Petition to Reinstate Inactive Case filed on February 25, 2011. MARTSON LAW OFFICES By: David A i imons, Esquire Katie J. Maxwell, Esquire 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: February 28, 2011 Attorneys for Plaintiffs CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Praecipe served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Joseph Dixon, Esquire 126 State Street Harrisburg, PA 17101 Mr. Randy Howard 5 Jesse Lane #564 Halifax, PA 17032 MARTSON LAW OFFICES Y Tricl, D. c enroad Ten East Hig Street Carlisle, PA 17013 (717) 243-3341 Dated: February 28, 2011 t w F.\FILES\Clients\I 1132 The Computer Barn, Inc\l l 132.1.amended petition David A. Fitzsimons, Esquire FIL ? Attorney I.D. No. 41722 =?P VF f gµ Katie J. Maxwell, Esquire Attorney I.D. No. 206018 f lit f FE 28 P 2: 4 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES ~JM9E R LA `C '--f { P N $}l IS Y L Vl ik 1114!, 10 East High Street PA 17013 (717) 243-3341 Attorneys for Plaintiffs NED KERSTETTER and : IN THE COURT OF COMMON PLEAS OF THE COMPUTER BARN, INC., : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. : NO. 05 - 4943 CIVIL TERM ROGER HOOPER and RANDY HOWARD, Defendants AMENDED PETITION AND NOW, comes the Plaintiffs, Ned Kerstetter and The Computer Barn, by and through its attorneys, MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, files this Amended Petition to correct an error on Paragraph 13 of Petition to Reinstate Inactive Case filed on February 25, 2011: 1-12. Paragraphs 1 through 12 of said Petition are reincorporated by reference and reasserted as if fully set forth. 13. Undersigned counsel became aware on Thursday, February 24, 2011, that this case had been terminated due to inactivity by Order dated October 29, 2008. (Copy attached as Exhibit "C"). (Corrected language from error in original underlined). 14-35. Paragraphs 14-35 are reincorporated by reference and reasserted as if fully set forth WHEREFORE, Plaintiff respectfully requests this Honorable Court to reinstate this action pursuant to Pa. R.C.P. 230.2(d)(3). RT LA ICES By: David A. Fitzsimons, Esquire Katie J. Maxwell, Esquire 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: February 28, 2011 Attorneys for Plaintiffs f A? CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Petition served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Joseph Dixon, Esquire 126 State Street Harrisburg, PA 17101 Mr. Randy Howard 5 Jesse Lane #564 Halifax, PA 17032 MARTSON LAW OFFICES B Y, '4 lr? Tricia D. c nroad Ten East High treet Carlisle, PA 17013 (717) 243-3341 Dated: February 28, 2011 NED KERSTETTER and THE COMPUTER BARN, INC., Plaintiffs V. ROGER HOOPER and RANDY HOWARD, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05 - 4943 CIVIL TERM RULE TO SHOW CAUSE J 16- AND NOW, this day of March, 2011, upon consideration of Plaintiffs Petition to Reinstate a Terminated Case, a Rule is issued on Defendant to show cause why the case of Ned Kerstetter and The Computer Barn v. Roger Hooper and should not be reinstated. RULE returnable within days of service. By the Court, J. Distribution: `David A. Fitzsimons, Esquire Joseph Dixon, Esquire ? Mr. Randy Howard (?p? P? ru ? d 3`a?i i :Y _6 •- rv , F.\FILES\Clients\I 113, _ The Computer Barn, Inc\11132 ]petition rule absolute 'David A. Fitzsimons, Esquire Attorney I.D. No. 41722 c Katie J. Maxwell, Esquire Mm Z ` Attorney I.D. No. 206018 z? " -vim :;0 MARTSON DEARDORFF WILLIAMS O TTO GILROY & FALLER F .3 w a) MARTSON LAW OFFICES <? zQ 10 East High Street 20 zzi Carlisle, PA 17013 Corn (717) 243-3341 C;0 Attorneys for Plaintiffs ` NED KERSTETTER and : IN THE COURT OF COMMON PLEAS OF THE COMPUTER BARN, INC., : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 05 - 4943 CIVIL TERM ROGER HOOPER and RANDY HOWARD, Defendants PETITION TO MAKE RULE ABSOLUTE AND NOW, comes the Petitioners, Ned Kerstetter and The Computer Barn, by and through their attorneys, MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, files this Petition to Make Rule Absolute and in support states as follows: 1. Petitioner filed a Petition to reinstate an inactive case on February 25, 2011, and an Amended Petition on February 28, 2011. The Honorable Albert H. Masland entered a Rule to Show Cause on March 1, 2011, with the Rule returnable in 20 days of service. 2. To date, neither Defendant in this case has filed a response to the Court's Rule. WHEREFORE, Petitioner respectfully requests this Honorable Court to grant her Petition to make Rule Absolute to reinstate the case at the above-referenced docket number. MARTSON LAW OFFICES Date: 3 Z3 ( ( By: avid simons, Esgi Katie axwell, Esquire 10 E igh Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Petition served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Joseph Dixon, Esquire 126 State Street Harrisburg, PA 17101 Mr. Randy Howard 5 Jesse Lane #564 Halifax, PA 17032 MARTSON LAW OFFICES By l 91ht-V M . Price Ten Fast High Street Carlisle, PA 17013 (717) 243-3341 Dated: 302 3/// t 1 NED KERSTETTER and THE COMPUTER BARN, INC Plaintiffs ROGER HOOPER and RANDY HOWARD, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-4943 CIVIL TERM ANWSER TO RULE TO SHOW CAUSE AND NOW, this day of 2011, comes the Defendants, Roger Hooper and Randy Howard by and through their attorney, Joseph J. Dixon, Esquire who respectfully responds to Petition to Reinstate an inactive case as follows: 1. Denied. Said facts are within the exclusive knowledge and control of the Plaintiffs and proof of same is demanded at trial. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admittted. 6. Admitted. By way of further additional answer by these averments, the Defendants are admitting that they intentionally put the civil action on hold. 7. Admitted. ry C? .r... ?p 613 C ' CD S. Admitted. 9. Admitted. 10. Denied. Said averment is a conclusion of law, which requires no response. To the extent however that a response is required, the Defendants on their own, chose to put a civil action on hold and instead collect a civil debt through the criminal justice system. Under these circumstances, they are estopped from reopening the civil action which was dismissed because of their own strategy decision. H. Admitted. 12. Admitted. By way of further additional response, the Defendants by this averment are acknowledging that as part of a strategy, they let the civil action become inactive. For reasons unknown to the Defendants, they went to reinstate it and it has been legally purged by the Court. 13. Denied. Said facts are within the exclusive knowledge and control of the Plaintiffs and proof of same is demanded at trial. 14. Denied. After reasonable investigation, the Defendants did not respond to this averment. The facts and circumstances are withinin the exclusive knowledge and control of the Plaintiffs and proof of same is demanded at trial. 15. Denied. After reasonable investigation, the Defendants did not respond to this averment. The facts and circumstances are within the exclusive knowledge and control of the Plaintiffs and proof of same is demanded at trial. 16. Denied. After reasonable investigation, the Defendants did not respond to this averment. The facts and circumstances are within the exclusive knowledge and control of the Plaintiffs and proof of same is demanded at trial. By way of additional answer, there is no evidence of record that mistakes were made by the Prothonotary's Office of Cumberland County. By way of additional answer, both the Defendant, Roger i Hooper and the Defendant, Randy Howard did receive the Notices to Terminate and the final Order of Termination from the Court. 17. Denied. Said facts and averments are within the province of the Prothonotary's Office of Cumberland County. Proof is demanded at trial where the Court can take judicial notice of the records. 18. Denied. Said averment is a conclusion of law which requires no response. 19. Denied. Said facts are within the exclusive knowledge and control of the Prothonotary's Office. The Plaintiffs are unable to respond to this averment. 20. Denied. Said facts are within the exclusive knowledge and control of the Prothonotary's Office. The Plaintiffs are unable to respond to this averment. 21. Denied. Said facts are within the exclusive knowledge and control of the Plaintiffs and proof of same is demanded at trial. By way of further additional answer, the Defendants will be significantly prejudiced if this case is open because they understood it was closed. By way of further additional answer, many of the records of this business transaction are no longer available to the Defendants. WHEREFORE, the Defendants pray this Honorable Court reject the Petition for Reinstatement. Respectfully Submitted, OSEPH MIXON, ESQUIRE 126 STATE STREET HARRISBURG, PA 17101 717-236-8515 ATTORNEY FOR THE DEFENDANTS Date: ?' - ' /? VERIFICATION I verify that the statements made in this Al-.-sw4. , are true and correct. I understand that false statements herein are made subject to the penalty of 18 Pa. C.S. §4904, relating to unworn falsification to authorities. Dated: R j • 1 VERIFICATION I verify that the statements made in this A4 k- , are true and J correct. I understand that false statements herein are made subject to the penalty of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Dated: CERTIFICATE OF SERVICE AND NOW, this day of 2011 I, Joseph J. Dixon, Esquire, hereby certify that I have served a true and correct copy of the foregoing Answer to Rule to Show Cause this day by depositing the same in the United States Mail, first class, postage prepaid, in the Post Office at Harrisburg, Pennsylvania, addressed to: MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER DAVID A. FITZSIMONS, ESQ. 10 E. HIGH STREET CARLISLE, PA 17013 The Law Office of Joseph J. Dixon, Esquire By: JOS J. DIXON, ESQ r- AT?ORNEY ID #28290 126 STATE STREET HARRISBURG, PA 17101 (717) 233-8757 ATTORNEY FOR THE DEFENDANTS NED KERSTETTER and THE COMPUTER BARN, INC., Plaintiffs V. ROGER HOOPER and RANDY HOWARD, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORDER OF COURT ? CD L"3 N NO. 05 - 4943 CIVIL TERM z rn- Z r = -vm ? x-n X a• CD-n C o ° M V AND NOW, this day of March, 2011, upon consideration of Plaintiff s Petition to Reinstate a Terminated Case, it is hereby Ordered and Directed that the case of Ned Kerstetter and The Computer Barn v. Roger Hooper is reopened. By the Court, J. Distribution: r David A. Fitzsimons, Esquire M Li (ej Joseph Dixon, Esquire t opes Mr. Randy Howard ,U I( 3. 00 5 NED KERSTETTER and THE COMPUTER BARN, INC. Plaintiffs ROGER HOOPER and RANDY HOWARD, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-4943 CIVIL TERM --r w MOTION FOR RECONSIDERATION AND NOW, this day of l , 2011, comes the Movants, Roger Hooper and Randy Howard by and through their attorney, Joseph J. Dixon, Esquire, who respectfully aver as follows: The Movants for this Motion are Roger Hooper and Randy Howard, Defendants on the above-referenced case. 2. The Respondents to this Motion are Ned Kerstetter and The Computer Barn, Inc., Plaintiffs on the above-captioned case. 3. On or about September 22, 2005 the Plaintiffs filed the above-referenced Civil Action by filing a Complaint. 4. On or about October 11, 2005, the Defendants, through Counsel, filed an Answer to the Complaint. Nothing was done by the Plaintiffs to pursue the Civil Action and the Cumberland County Prothonotary, in accordance with purged procedures, ultimately terminated the Civil Action. This Order of Termination was issued by the Prothonotary of Cumberland County on October 29, 2008 (see copy attached hereto and marked Exhibit A). 6. Nothing was done on the case for several more years until Plaintiffs, through Counsel, on February 25, 2011, filed a Petition to Reinstate. At the time of filing that Petition there had been no action on this Civil Case by the Plaintiffs since the filing of the initial Complaint on September 22, 2005. After consideration of the Plaintiffs Reinstatement Petition, the Honorable Judge Albert H. Masland, on March 1, 2011, issued a Rule to Show Cause to be served upon the Defendants. It should be noted that the Rule itself indicates that it is returnable twenty (20) days after service (see copy of Court Order of March 1, 2011 attached hereto and marked Exhibit B). By cover of letter of March 7, 2011, Attorney David A. Fitzsimmons, on behalf of the Plaintiffs, served the Rule upon the Defendants and their counsel by regular mail. This service of the Rule by regular mail to counsel of record is in accordance with Pennsylvania Rule of Civil Procedure 440 (see copy of letter of March 7, 2011, attached hereto and marked Exhibit C). 9. On March 25, 2011, the Defendants, through Counsel, filed an Answer to the Rule to Show Cause issued by the Honorable Judge Albert H. Masland (see Stamped-In copy of the Answer to Rule to Show Cause attached hereto and marked Exhibit D). 10. The Defendants believe and therefore aver that this Answer is timely and within the twenty (20) days of service as set forth by the Honorable Judge Albert H. Masland. 11. On March 23, 2011, unknown to the Defendants, counsel for the Plaintiffs filed a Petition to Make the Rule Absolute. This filing which occurred on March 23, 2011 was prior to the expiration of the twenty (20) days service requirement set forth by the Honorable Judge Albert H. Masland. 12. Pursuant to the Plaintiffs Petition to Make Rule Absolute, the Honorable Judge Albert H. Masland, on March 26, 2011, entered a Court Order reopening the case (see copy of Court Order attached hereto and marked Exhibit E). 13. The actions of the Plaintiffs in filing to Make the Rule Absolute prior to the expiration of the service requirement is in violation of Pennsylvania Rule of Civil Procedure 440 . 14. The Defendants believe and therefore aver that that the Honorable Judge Albert H. Masland was not aware that the Defendants vigorously contested opening up a six-year old Civil Case for the reason set forth in their Answer to Rule to Show Cause. 15. Since the Order of March 26, 2011, the Plaintiff has asked Counsel to voluntarily withdraw their Petition to Make Rule Absolute. 16. Counsel has refused to do so. WHEREFORE, the Movants pray this Honorable Court to revoke the Order of March 26, 2011 and dismiss the Petition to Reinstate based upon the untimeliness of it. Respectfully Submitted, JOSEP .DIXON, ESQUIRE 126 STATE STREET HARRISBURG, PA 17101 717-236-8515 ATTORNEY FOR THE DEFENDANTS Date: jG VERIFICATION 9/ ° y I verify that the statements made in this ;are true and correct. I understand that false statements herein are made subject to the penalty of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Dated: ?( / VERIFICATION eo -7 I verify that the statements made in are true and correct. I understand that false statements herein are made subject to the penalty of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Dated: ?? CERTIFICATE OF SERVICE AND NOW, this day ow?,, 2011, I, Joseph J. Dixon, Esquire, hereby certify that I have served a true and correct copy of the foregoing Motion For Reconsideration this day by depositing the same in the United States Mail, first class, postage prepaid, in the Post Office at Harrisburg, Pennsylvania, addressed to: MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER ATTENTION: DAVID A. FITZSIMONS, ESQ. TEN EAST HIGH STREET CARLISLE, PA 17013 and MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER ATTENTION: KATIE J. MAXWELL, ESQ. TEN EAST HIGH STREET CARLISLE, PA 17013 The Law Office of Joseph J. Dixon, Esquire By. J E J. DIXON, ESQUIRE ATTORNEY ID #28290 126 STATE STREET HARRISBURG, PA 17101 (717) 233-8757 ATTORNEY FOR PLAINTIFF EXHIBIT A Curtis IL Long Prothonotary (Office of the i9rotbonotarp Cumberfab Coantp Renee X Simpson Deputy Prothonotary John E. Slike Solicitor C:s - .g9yt.,,?._ CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 29TM DAY OF OCTOBER 2008 AFTER MAII,ING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE CASE IS HEREBY 'IM MIlVATED WITH PREJUDICE IN ACCORDANCE WITH PA R. CP230.2 BY THE COURT, CURTIS R. LONG PROTHONOTARY One Courthouse Square - Carlisle, Pennsylvania 17013 • (717) 240-6195 - Fax (717) 240-6573 EXHIBIT B NED KERSTETTER and THE COMPUTER BARN, INC., Plaintiffs V. ROGER HOOPER and RANDY HOWARD, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05 - 4943 CIVIL TERM RULE TO SHOW CAUSE AND NOW, this / day of March, 2011, upon consideration of Plaintiff's Petition to Reinstate a Terminated Case, a Rule is issued on Defendant to show cause why the case of Ned Kerstetter and The Computer Barn v. Roger Hooper and should not be reinstated. RULE returnable within aC) days of service. By the Court, is/ & J. Distribution: David A. Fitzsimons, Esquire Joseph Dixon, Esquire Mr. Randy Howard G,- EXHIBIT C MARTSON DEARDORFF WILLIAMS MA"PTSON LAW OFFICES 10 EAST HIGH STREET CARLISLE, PENNSYLVANIA 17013 TELEPHONE (717) 243-3341 FACsIMiu (717) 243-1850 INTERNET www.martsorlaw.com • March 7, 2011 Joseph Dixon, Esquire 126 State Street Harrisburg, PA 17101 Mr. Randy Howard 5 Jesse Lane #564 Halifax, PA 17032 TTO k-jIL WILLIAM F. MARTSON JOHN B. FowLER III DANIEL K DEARDORFF THOMAS J. WILLIAMS* No V. OTTO III HuBERT X. GILROY GEORGE B. FALLER JR.* *BOARD CERnFu LL DAVID A. FrtzsIMONS CHRISTOPHER E. RiaF JENNIFER L. SPEARS SETH T. MOSEBEY KATIE J. MAXWELL R. C. VANLANDINGHAM M CIVIL TRIAL SrEcuusT RE: Ned Kerstetter and The Computer Barn, Inc. v. Roger Hooper and Randy Howard Our File No. 11132.1 Gentlemen: Enclosed for service upon you is a Rule to Show Cause. Very truly yours, MARTSON LAW OFFICES a vw. David A. Fitzsimons DAF/tde Enclosure F:TIUS\Clients\l 1132 The Computer Barn, Inc\] 1132, l.rhjd2 INFORMATION • ADVICE • ADVOCACY SM P 01 EXHIBIT D NED KERSTETTER and IN THE COURT OF COMMON PLEAS THE COMPUTER BARN, INC. CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs _ NO. 05-4943 CIVIL TERM ROGER HOOPER and RANDY HOWARD, Defendants ANWSER TO RULE TO SHOW CAUSE c? z:M ,=,;a :M. :;0 r -um AND NOW, this day of ?ft? , 2011, comes the Defendants, Roger Hooper and Randy Howard by and through their attorney, Joseph J. Dixon, Esquire who respectfully responds to Petition to Reinstate an inactive case as follows: 1. Denied. Said facts are within the exclusive knowledge and control of the Plaintiffs and proof of same is demanded at trial. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admittted. 6. Admitted. By way of further additional answer by these averments, the Defendants are admitting that they intentionally put the civil action on hold. 7. Admitted. 8. Admitted. 9. Admitted. 10. Denied. Said averment is a conclusion of law, which requires no response. To the extent however that a response is required, the Defendants on their own, chose to put a civil action on hold and instead collect a civil debt through the criminal justice system. Under these circumstances, they are estopped from reopening the civil action which was dismissed because of their own strategy decision. 11. Admitted. 12. Admitted. By way of further additional response, the Defendants by this averment are acknowledging that as part of a strategy, they let the civil action become inactive. For reasons unknown to the Defendants, they went to reinstate it and it has been legally purged by the Court. 13. Denied. Said facts are within the exclusive knowledge and control of the Plaintiffs and proof of same is demanded at trial. 14. Denied. After reasonable investigation, the Defendants did not respond to this averment. The'facts and circumstances are withinin the exclusive knowledge and control of the Plaintiffs and proof of same is demanded at trial. 15. Denied. After reasonable investigation, the Defendants did not :respond to this averment. The facts and circumstances are within the exclusive knowledge and control of the Plaintiffs and proof of same is demanded at trial. 16. Denied. After reasonable investigation, the Defendants did not respond to this averment. The facts and circumstances are within the exclusive knowledge and control of the Plaintiffs and proof of same is demanded at trial. By way of additional answer, there is no evidence of record that mistakes were made by the Prothonotary's Office of Cumberland County. By way of additional answer, both the Defendant, Roger Hooper and the Defendant, Randy Howard did receive the Notices to Terminate and the final Order of Termination from the Court. 17. Denied. Said facts and averments are within the province of the Prothonotary's Office of Cumberland County. Proof is demanded at trial where the Court can take judicial notice of the records. 18. Denied. Said averment is a conclusion of law which requires no response. 19. Denied. Said facts are within the exclusive knowledge and control of the Prothonotary's Office. The Plaintiffs are unable to respond to this averment. 20. Denied. Said facts are within the exclusive knowledge and control of the Prothonotary's Office. The Plaintiffs are unable to respond to this averment. 21. Denied. Said facts are within the exclusive knowledge and control of the Plaintiffs and proof of same is demanded at trial. By way of further additional answer, the Defendants will be significantly prejudiced if this case is open because they understood it was closed. By way of further additional answer, many of the records of this business transaction are no longer available to the Defendants. WHEREFORE, the Defendants pray this Honorable Court reject the Petition for Reinstatement. Respectfully Submitted, IOSEPH J.DIXON, ESQUIRE 126 STATE STREET HARRISBURG, PA 17101 717-236-8515 ATTORNEY FOR THE DEFENDANTS Date: i r' VERIFICATION VERIFICATION CERTIFICATE OF SERVICE AND NOW, this ;7 l day of 20111, Joseph J. Dixon, Esquire, hereby certify that I have served a true and correct copy of the foregoing Answer to Rule to Show Cause this day by depositing the same in the United States Mail, first class, postage prepaid, in the Post Office at Harrisburg, Pennsylvania, addressed to: MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER DAVID A. FITZSIMONS, ESQ. 10 E. HIGH STREET CARLISLE, PA 17013 The Law Office of Joseph J. Dixon, Esquire By: JOSEPH J. DIXON, ESQ - IRE'S ATTORNEY ID #28290 126 STATE STREET HARRISBURG, PA 17101 (717) 233-8757 ATTORNEY FOR THE DEFENDANTS EXHIBIT E NED KERSTETTER and THE COMPUTER BARN, INC., Plaintiffs V. ROGER HOOPER and RANDY HOWARD, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05 - 4943 CIVIL TERM ORDER OF COURT AND NOW, this day of March, 2011, upon consideration of Plaintiff's Petition to Reinstate a Terminated Case, it is hereby Ordered and Directed that the case of Ned Kerstetter and The Computer Barn v. Roger Hooper is reopened. By the Court, Isl A1?f ?, ?lh?,? J. Distribution: David A. Fitzsimons, Esquire Joseph Dixon, Esquire Mr. Randy Howard NED KERSTETTER and THE COMPUTER BARN, INC., PLAINTIFFS V. ROGER HOOPER AND RANDY HOWARD, DEFENDANTS AND NOW, this IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 05-4943 CIVIL TERM ORDER OF COURT /'e?? day of April, 2011, upon review of defendants' motion for reconsideration, plaintiffs' petition to reinstate inactive case, and defendants' answer to said petition, we direct that our order of March 26, 2011, which reinstated the terminated case, be and is hereby VACATED. A hearing shall be held on the petition for reinstatement on Friday, June 17, 2011, at 1:30 p.m., in Courtroom Number 5, Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court, Albert H. Masland, J. Joseph J. Dixon, Esquire For Plaintiffs c' David A. Fitzsimons, Esquire ?rn "O For Defendants h5ll? A Z rrj Ica ?. pleb Kta, ?. ?utAXtUP,II -< ry n a , :saa y° 3 ?- p? r7 NED KERSTETTER and THE COMPUTER BARN, INC., PLAINTIFFS V. ROGER HOOPER AND RANDY HOWARD, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : 05-4943 CIVIL TERM ORDER OF COURT AND NOW, this day of July, 2011, upon consideration of Plaintiffs' petition to reinstate a terminated case, the Defendants' response thereto and the evidence presented at a hearing on this matter held on June 17, 2011, this case is REOPENED. By the Court, i Albert H. Masland, J. David A. Fitzsimons, Esquire For Plaintiffs Joseph J. Dixon, Esquire For Defendants r-l c- :saa ,PAL 7-' ?-i NED KERSTETTER and THE COMPUTER BARN, INC., PLAINTIFFS V. ROGER HOOPER AND RANDY HOWARD, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 05-4943 CIVIL TERM MEMORANDUM OPINION AND ORDER OF COURT Masland, J., July 13,2011:-- Before the court is Plaintiffs' petition to reinstate a terminated case that was filed on February 25, 2011. Although the court issued an order on March 26, 2011, reinstating that case, the order was vacated after receiving a motion for reconsideration from Defendants. A hearing was held on the petition on June 17, 2011. At that hearing, testimony was received from David B. Buell, the Prothonotary for Cumberland County, counsel for the Plaintiffs, the Plaintiffs and the Defendants. For the following reasons, we grant Plaintiffs' petition and reinstate this case. Initially, we note that the Rules of Civil Procedure in general and Pa.R.C.P No. 230.2 in particular disfavor termination of otherwise viable cases based on mere lack of docket activity. See Kane v. Vigunas, 967 A.2d 987, 990 (Pa. Super. Ct. 2009). The testimony adduced at the hearing clearly demonstrated that Plaintiffs have a viable case, which barring termination, should proceed. Secondly, Plaintiffs counsel testified to and argued convincingly that Plaintiffs did not proceed with the case after Defendants filed their answer on 05-4943 CIVIL TERM October 11, 2005 because they chose instead to allow a separate but related criminal proceeding to unfold. Such a course of action is eminently reasonable, especially in light of the Plaintiffs' loss of substantial funds, which resulted in the criminal charges against Defendant Hooper. In short, Plaintiffs were not in a financial position to proceed with the civil case. Thirdly, Rule 230.2(3) states: "[i]f the petition is filed more than thirty days after the entry of the order of termination on the docket, the court shall grant the petition and reinstate the action upon a showing that the petition was timely filed following the entry of the order for termination." Pa. R. C. P. 230.2(3)(1). Here, the petition was not filed within the thirty-day time period after the order of termination was entered. While both Mr. Hooper and Mr. Howard testified to receiving the intent to purge, there is no indication that any of the parties or their counsel received the order terminating the case. Although the petition to reinstate was not filed within the thirty-day time period, it was filed promptly after Plaintiffs and their counsel first became aware of the termination order. Rule 230.2(3) also allows reinstatement of a case where the petition was not timely filed where "there is a reasonable explanation or a legitimate excuse for the failure to file both (A) the statement of intention to proceed prior to the entry of the order of termination on the docket and, (B) the petition to reinstate the action within thirty days after the entry of the order of termination on the docket". Pa. R. C. P. 230.2(3)(ii). Here, the fact that neither the Plaintiff nor -2- 05-4943 CIVIL TERM counsel received the order terminating the case serves as a "legitimate excuse for the failure to file." Further, nothing exists on the record to indicate that the termination notice was ever served on Plaintiffs. Finally, the immediate action by Plaintiffs in petitioning to reinstate after receiving actual notice of the termination not only demonstrates the likelihood that neither he nor his counsel received the termination order, but also strengthens the fact that if they had received such notice they would have promptly filed the statement of intention to proceed. See Regrut v. Sheraton Inn-Shenango, 10 Pa. D. & C. 4th 58, 64 (1990). Although not raised by the Defendants, the court notes the decision of our sister county, Berks, in Panosian v. Hampton, 76 Pa.D.&C.4th 410 (2005). In Panosian, plaintiffs case was terminated after two years of non-activity. Id. at 412. Plaintiff petitioned to reinstate the case claiming that notice of intent to purge was never received. Id. at 413. Although the plaintiff claims to never have received notice, the Prothonotary presented evidence that notice was sent to all counsel and parties by ordinary mail. Id. The court denied plaintiffs petition to reinstate finding that proper service of the notice was documented. Id. at 414. Furthermore, the court denied reinstatement finding that to allow it would unfairly prejudice the defendant who would be ask to reconvene more than twenty-three months after the claim has been dismissed. Id. at 416. The court finds the present case to be distinguishable from our sister court's decision in Panosian. In Panosian there was evidence that both the -3- 05-4943 CIVIL TERM notice of intent to purge and the notice of actual termination was sent by ordinary mail and thus properly served on all parties. Here, the record indicates that notice of intent to purge was never sent to Defendants' counsel, raising the possibility that it was never sent to Plaintiffs or Plaintiffs' counsel either. Furthermore, there is no record in the Prothonotary's office of mailing the actual termination order to any of the parties or counsel involved. In addition, the main concern of denying plaintiff's petition to reinstate in Panosian was to prevent the unfairness to defendants of having to reconvene after the case was put to rest. Here, the case was never put to rest. After the Defendants' answer was filed, the District Attorney's Office began an investigation that culminated in criminal charges filed on May 22, 2008. As noted at the hearing, Defendant Hooper was sentenced on these charges on January 4, 2011. As such, the underlying matter was never truly closed and to allowed reinstatement of the instant case is clearly proper. Finally, although prejudice is not an element of Pa.R.C.P. No. 2302, our action reinstating this matter causes no prejudice to Defendants. In conclusion, we find that Plaintiffs filed his petition promptly upon discovery of the order terminating the case. Further, Plaintiffs provided a reasonable explanation for the failure to file a statement of intention to proceed and a petition to reinstate the action within 30 days of the order terminating the case. Accordingly, we enter the following order. -4- 05-4943 CIVIL TERM AND NOW, this ORDER OF COURT 2 1 /?,,3 day of July, 2011, upon consideration of Plaintiffs' petition to reinstate a terminated case, the Defendants' response thereto and the evidence presented at a hearing on this matter held on June 17, 2011, this case is REOPENED. By the Court, Albert H. Masland, J. David A. Fitzsimons, Esquire For Plaintiffs Joseph J. Dixon, Esquire For Defendants saa -5- Ned Kerstetter and the Computer Barn, Inc. vs Roger Hooper and Randy Howard Case No. 05-4 STATEMENT OF INTENTION TO PROCEED c-) -© 3 rel co To the Court: Plaintiffs intends to proceed with the above captioned matter. David A. Fitzsimons, Esquire Print Name Sign Name Date: October 20, 2014 Attorney for Plaintiffs IMPORTANT NOTE In the event that this is a second or subsequent filing of a Statement of Intention to Proceed, this matter will be referred to the President Judge for the purpose of conducting a status conference involving all counsel. The goal of the status conference will be to set the matter for trial or other final disposition within a time certain. Prior to the status conference, Counsel will be expected to submit to the court, in writing, a proposed schedule for the completion of discovery, the filing of dispositive motions and a report as to whether alternative dispute resolution has been used or discussed.