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HomeMy WebLinkAbout06-2021SHAWN W. GILMORE Plaintiff V. KENNETH ABATE and EMMA V. ABATE, Husband and Wife, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. Dlo -2vzl l_ ! U r 1.??-? CIVIL ACTION - LAW JURY TRIAL DEMANDED 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 an 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 maybe entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 800-990-9108 NOTICIA Le ban demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en ]as paginas siguientes, usted tiene veinte (20) dias de plazo al partir de ]a fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las medidas y pueda entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE SI NO TIENE AGOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO VAYA EN PERSONA OR LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 800-990-9108 SHAWN W. GILMORE Plaintiff V. KENNETH ABATE and EMMA V. ABATE, Husband and Wife, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. O , CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT Plaintiff is an adult individual residing at 424 Burgners Road, Carlisle, Cumberland County, Pennsylvania. 2. Defendants are adult individuals, married to each other, residing at an unknown location at this point, but they are believed to live in the Enola, Cumberland County area in that Kenneth Abate works at Woody's, North Front Street, West Fairview, Cumberland County, Pennsylvania. On or about July 27, 2004, the parties entered into a written agreement whereby Defendants were to purchase a parcel of real estate that Plaintiff owned, colloquially known as 512 Third Street, West Fairview, Cumberland County, Pennsylvania 17025. 4. The agreement that is the subject of the previous paragraph was a written agreement and a true and correct copy thereof is attached hereto, marked Exhibit "A" and incorporated herein by reference. 5. The agreement provided that Defendants were to make monthly payments of $832.44 for one year, ending in July, 2005, at which time the Defendants were to pay the balance then due on the existing mortgage that Plaintiff held, plus $2,000.00. 6. As of July 1, 2005, the balance due on Plaintiff s mortgage was $72,575.69, which, pursuant to terms of the agreement, would make the total due from the Defendants, the following, $74,575.69. In addition to the sum described above, the Defendants were also, pursuant to agreement, obligated to pay $2,000.00 for appliances and other household items and $1,200.00 for municipal sewer and trash; Defendant did not make any payment described in this paragraph. 8. Despite repeated demands, Defendants never made the final payment. 9. In fact, the mortgagee eventually foreclosed on the property, and Plaintiff no longer owns, nor are Defendants living in the house that was situated on the property. COUNT - I BREACH OF CONTRACT 10. The facts set forth in paragraphs one through eight are incorporated herein by reference. 11. Defendants materially breached the contract that is the subject of this action by failing to make both the final payment and the payments for appliances and municipal charges as described above. 12. As a direct result of Defendants' breach of the agreement, Plaintiff has suffered economic damages of at least the sums due to him as described above, namely $77,775.69. WHEREFORE, Plaintiff requests this Honorable Court to enter judgment in his favor and against the Defendants, jointly and severally, for $77,775.69, together with interest, the costs of this action and any other relief the Court deems appropriate. COUNT - II QUANTUM MERUIT 13. The facts set forth in paragraphs one through eleven are incorporated herein by reference. 14. Regardless of whether there was a contract between the parties, the Defendants enjoyed full and quiet possession of the parcel of real estate known as 512 Third Street, West Fairview, Cumberland County, Pennsylvania for over a year without properly compensating Plaintiff for that possession. 15. It would be unjust and inequitable to allow the Defendants the benefits that were conferred upon them without compelling them to compensate Plaintiff for those benefits as described herein. 16. Defendants have refused and, upon information and belief, will continue to refuse to make any sort of payment to Plaintiff with respect to their use of the real estate parcel colloquially known as 512 Third Street, West Fairview, Cumberland County, Pennsylvania. 17. Plaintiff believes and therefore avers that a proper figure to compensate him for the Defendants' extensive use of the parcel is the same amount that is due to him pursuant to the parties agreement: $77,775.69. WHEREFORE, Plaintiff requests this Honorable Court to enter judgment in his favor and against the Defendants, jointly and severally, for $77,775.69, together with interest, the costs of this action and any other relief the Court deems appropriate. Date Attorney for P ar tiff 407 North F4 t It., First Floor Harrisburg, PA 101 (717) 238-3686 Supreme Court I.D. # 53729 VERIFICATION 1, Shawn W. Gilmore, Plaintiff in the foregoing action, verify that the facts set forth in the attached document are true and correct to the best of my knowledge, information and belief. t so state subject to the penalties of 18 Pa. C. S. §4904 (relating to unsworn falsification to authorities). aRIL 7, 2006 Date Shawn W. Gilmore 4 6` KOPE & ASSOCIATES, LLC BY: SHANE B. KOPE, ESQUIRE ATTORNEY ID 92207 4660 TRINDLE ROAD, SUITE 201 CAMP HILL, PA 17011 (717) 761-7573 SHAWN W. GILMORE, Plaintiff, V. Attorney for Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2006-2021 CIVIL TERM KENNETH ABATE and : CIVIL ACTION-LAW EMMA V. ABATE, husband and wife, Defendants. : JURY TRIAL DEMANDED PRAECIPE TO ATTACH VERIFICATION TO THE PROTHONOTARY: Please attach the enclosed Verification signed by the Defendant to the Answer and New Matter that was filed in the above captioned matter. It was inadvertently not attached when the Answer and New Matter was filed. Respectfully Submitted, KOPE & ASSOCIATES, LLC B. Kope, Es uire dadle-Ro-aid,tuite 201 Camp Hill, PA 17011 (717) 761-7573 I.D. 92207 (Attorney for Defendants) VERIFICATION I, Emma Abate, Defendant in this matter, verify that the statements made in the foregoing Answer with New Matter to Plaintiffs' Complaint are true and correct to the best of my knowledge, information, and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsification to authorities. Date: 511 %? o \-P Emma Abate Ei co f'11 ? _n KOPE & ASSOCIATES, LLC BY: SHANE B. KOPE, ESQUIRE ATTORNEY ID 92207 4660 TRINDLE ROAD, SUITE 201 CAMP HILL, PA 17011 (717) 761-7573 SHAWN W. GILMORE, Plaintiff, V. Attorney for Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2006-2021 CIVIL TERM KENNETH ABATE and : CIVIL ACTION-LAW EMMA V. ABATE, husband and wife, Defendants. : JURY TRIAL DEMANDED NOTICE TO PLEAD To: Plaintiff: YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED ANSWER WITH NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGEMENT MAY BE ENTERED AGAISNT YOU. Respectfully Submitted, KOPE & ASSOCIATES, LLC. Date: Shane B. Kope, Esq. KOPE & ASSOCIATES, LLC BY: SHANE B. KOPE, ESQUIRE ATTORNEY ID 92207 4660 TRINDLE ROAD, SUITE 201 CAMP HILL, PA 17011 (717) 761-7573 SHAWN W. GILMORE, Plaintiff, V. Attorney for Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2006-2021 CIVIL TERM KENNETH ABATE and : CIVIL ACTION-LAW EMMA V. ABATE, husband and wife, Defendants. : JURY TRIAL DEMANDED ANSWER AND NEW MATTER NOW COME the Defendants, Kenneth Abate and Emma V. Abate, by and through their attorney, Shane B. Kope, Esquire, and file the following Answer and New Matter to Plaintiffs Complaint as follows: 1. Admitted. 2. Admitted. 3. Denied as stated. To the extent that this paragraph purports to summarize, interpret or characterize the written agreement, that document speaks for itself, and the averments of this paragraph are therefore denied. 4. Admitted. 5. Denied as stated. To the extent that this paragraph purports to summarize, interpret or characterize the written agreement, that document speaks for itself, and the averments of this paragraph are therefore denied. 6. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth or falsity of the averments of this paragraph and they are therefore denied. By way of further answer, Defendants aver that payoff of the mortgage was in excess of ninety-thousand dollars ($90,000). 7. Denied as stated. To the extent that this paragraph purports to summarize, interpret or characterize the written agreement, that document speaks for itself, and the averments of this paragraph are therefore denied. 8. Admitted. However, Defendants aver that Plaintiff had refused to extend the agreement six months as provided in said agreement and that the value of the mortgage was in excess of ninety-thousand dollars ($90,000). 9. Admitted. COUNT I-BREACH OF CONTRACT 10. Defendants incorporate herein there Answers to Paragraphs one (1) through nine (9) of this answer. 11. Denied. This paragraph contains no averments of fact but only a conclusion of law, to which no response is required. To the extent that a response is deemed necessary, the averments of this paragraph are denied. 12. Denied. This paragraph contains no averments of fact but only a conclusion of law, to which no response is required. To the extent that a response is deemed necessary, the averments of this paragraph are denied. By way of further answer, after reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth or falsity of the averments of this paragraph and they are therefore denied. COUNT II-QUANTUM MERUIT 13. Defendants incorporate herein there Answers to Paragraphs one (1) through twelve (12) of this answer. 14. Denied. This paragraph contains no averments of fact but only a conclusion of law, to which no response is required. To the extent that a response is deemed necessary, the averments of this paragraph are denied. 15. Denied. This paragraph contains no averments of fact but only a conclusion of law, to which no response is required. To the extent that a response is deemed necessary, the averments of this paragraph are denied. 16. Denied. This paragraph contains no averments of fact but only a conclusion of law, to which no response is required. To the extent that a response is deemed necessary, the averments of this paragraph are denied. 17. Denied. This paragraph contains no averments of fact but only a conclusion of law, to which no response is required. To the extent that a response is deemed necessary, the averments of this paragraph are denied. NEW MATTER By way of further answer and defense, Defendants aver New Matter as follows: FIRST DEFENSE-FRAUD 18. Plaintiff represented himself to Defendants as the seller of the property located at 512 Third Street, West Fairview, Cumberland County, Pennsylvania. 19. Plaintiff solicited Defendants for the purpose of inducing them to purchase said property. 20. In connection with his solicitation and in response to inquiry by the Defendants, Plaintiff represented that the mortgage was $72,575.69. 21. The representations hereinabove were made by Plaintiff with the intention and purpose that Defendants would rely thereon and would be induced thereby to enter into an agreement with Plaintiff. 22. In further reliance upon the representations hereinabove, Defendants entered into an agreement with Plaintiff. 23. Defendants believe and therefore aver that the mortgage payoff was not $72,575.69 as represented, but was, in fact, in excess of $90,000. 24. The representations set forth hereinabove were erroneous, materially false, fraudulent, and misleading. 25. At the time Plaintiff made the fraudulent misrepresentations as more fully set forth above, Plaintiff knew or should have known of its falsity and was recklessly and/or negligently indifferent to its falsity and to the fact that Defendants were being misled and deceived thereby. 26. As a result of Plaintiffs fraudulent, wrongful and unlawful conduct, and the reliance of Defendants upon Plaintiffs misrepresentations, Defendants have sustained losses with respect to the actual amount of the mortgage together with costs and expenses of having been evicted from their home. SECOND DEFENSE-ESTOPPEL 27. A primary inducement to Defendants to enter into the agreement with Plaintiff, and upon which Defendants relied, was the representation by Plaintiff that the mortgage was valued at $72,575.69. 28. Another primary inducement to Defendants to enter into the agreement with Plaintiff, and upon which Defendants relied, was the representation by Plaintiff that he would extend the initial installment payments by six (6) months. 29. Plaintiff is estopped from enforcing the agreements or obtaining recovery from Defendants thereunder for the reason that Plaintiffs representations were false. THIRD DEFENSE-FAILURE OF CONSIDERATION 30. Defendants entered into the agreement solely in consideration of the performance by Plaintiff of the promises made therein by Plaintiff. 31. Defendants have performed all of the promises and conditions required on their part by the agreement, but Plaintiff has failed to perform as provided in the agreement, in that Plaintiff has failed to disclose the actual value of the mortgage and refused to extend the initial installment payments by six (6) months. FOURTH DEFENSE-ILLEGALITY 32. The purported agreement between Plaintiff and Defendants was based entirely on false statements and misrepresentations. 33. Said agreement is an illegal and unenforceable contract of sale. FIFTH DEFENSE-LACHES 34. Plaintiff is not entitled to maintain this suit because of his laches. 35. Plaintiff had knowledge of all of the acts of the Defendants as set forth in the complaint, and all of the facts in connection therewith, and nevertheless Plaintiff refrained from commencing this action until April 10, 2006. SIXTH DEFENSE-STATUTE OF LIMITATIONS 36. Some or all of Plaintiffs claims are barred by the applicable statute of limitations. SEVENTH DEFENSE-STATUTE OF FRAUDS 37. The purported agreement between Plaintiff and Defendants violates the Statute of Frauds. EIGHTH DEFENSE - MITIGATION OF DAMAGES 38. The Plaintiffs Complaint fails to mitigate the damages alleged therein. WHEREFORE, Defendants demand judgment against Plaintiff and the costs of this action. Respectfully Submitted, TES, LLC Dated: May 18, 2006 B. Kope, KOPE & ASSOCIATES, LLC BY: SHANE B. KOPE, ESQUIRE ATTORNEY ID 92207 4660 TRINDLE ROAD, SUITE 201 CAMP HILL, PA 17011 (717) 761-7573 SHAWN W. GILMORE, Plaintiff, V. Attorney for Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2006-2021 CIVIL TERM KENNETH ABATE and : CIVIL ACTION-LAW EMMA V. ABATE, husband and wife, Defendants. : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Shane B. Kope, Esquire, hereby certify that on May 18, 2006, 1 served a copy of the foregoing Answer and New Matter by first class United States mail upon the following: Anthony T. McBeth, Esquire 407 North Front Street, First Floor Harrisburg, PA 17101 LLC B. Kope, 46601 dndle-Read, Suite 201 Camp Hill, PA 17011 (717) 761-7573 I.D. 92207 (Attorney for Defendants) ? , CO t CO KOP & ASSOCIATES, LLC BY: ANE PE, ESQUIRE ATTI NEY 1%.K0; 2207 4660 rindle Road, Suite 201 Camp Hill, PA 17011 (717) 61-7573 11 sbko comcast.net Attorney for Defendant SHA W. GILMORE, : IN THE COURT OF COMMON PLEAS Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2006-2021 CIVIL TERM KEN IN TH ABATE and : CIVIL ACTION-LAW EMMA V. ABATE, husband and wife, Defendants. : JURY TRIAL DEMANDED DATE iF SERVICE: June 23, 2006 IMPORTANT NOTICE :ZE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN ;ANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A LENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY OUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS TO A LAWYER AT ONCE, IF YOU DO NOT HAVE A LAWYER OR CANNNOT 1 ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE N GET LEGAL HELP: YOU LOSE YOU Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 KOPE & ASSOCIATES, LLC Date: 23, 2006 Shane B. Kopek Esq. r? CERTIFICATE OF SERVICE Shane B. Kope, of Kope & Associates, LLC, hereby certify that a true copy of the forgoing Ten Day Notice of Intent to Enter Default Judgment was served this date upon t le below-referenced individuals at the below listed address by way of first class mail, pre-paid: Anthony T. McBeth, Esquire 407 North Front Street, First Floor Harrisburg, PA 17101 Shane B. Kop , Esq. Trindle ROW , Suite 201 46Q ? Camp i, 17011 (717) 761-7573 I.D. 92207 Attorney for Defendant Date: June 23, 2006 ,, ..? ?° -?, ?:; _:? _. --? --? ?, ,;-?= ??. ' r; A CASE NO: 2006-02021 P KENNETH COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND GILMORE SHAWN W VS ABATE KENNETH ET AL JESSICA HERMANSEN Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon the DEFENDANT , at 1447:00 HOURS, on the 13th day of April , 2006 at 3 NORTH ENOLA DRIVE ENOLA, PA 17 EMMA ABATE, WIFE by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Postage Surcharge SHERIFF'S RETURN - REGULAR So Answers: 18.00 13.20 •/ .39 7 10.00 R. Thomas Kline .00 41.59 04/17/2006 (?- 5/a Sworn and Subscribed to befo me this day of A. D. ANTHONY MCBETH }} re By: e 1ty Sheriff Prothonotary SHERIFF'S RETURN - REGULAR CASE NO: 2006-02021 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ILMORE SHAWN W VS ABATE KENNETH ET AL JESSICA HERMANSEN Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE ABATE EMMA V DEFENDANT the at 1447:00 HOURS, on the 13th day of April , 2006 at 3 NORTH ENOLA DRIVE ENOLA, PA 17025 was served upon by handing to EMMA ABATE a true and attested copy of COMPLAINT & NOTI together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 J/O(. h Sworn and Subscribed to before to me this day of A.D. So Answers: R. Thomas Kline 04/17/2006 ANTHONY MCBETH By: De y Sherif Prothonotary SHAWN W. GILMORE : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2006-2021 CIVIL TERM KENNETH ABATE and EMMA V. ABATE, Husband and Wife, : CIVIL ACTION - LAW Defendants : JURY TRIAL DEMANDED PLAINTIFF'S REPLY TO DEFENDANTS' NEW MATTER 18. Admitted. 19. Denied. Instead, it was a transaction of mutual interest. 20. Admitted in part and denied in part. It is admitted that the mortgage was discussed, although Plaintiff does not recall the precise figure he might have given to the Defendants at the negotiation stage. 21. Denied as stated. The representations were made in response to questions from the Defendants and were not made with any specific intention of the Defendants' reliance thereon. 22. Admitted in part and denied in part. It is admitted that the parties entered into an agreement. The remainder of the averment is a conclusion of law to which no response is required. 23. Denied. This averment is an expression of the Defendants' subjective beliefs, and is not susceptible of a reply. 24. Denied both factually and as a legal conclusion to which no response is required. 25. Denied. No fraudulent representations were made. The remainder of the averment is a conclusion of law to which no response is required. 26. Denied. There was no fraudulent conduct, and Defendants have not specified any damages. 27. Denied. This averment is a conclusion of law to which no response is required. 28. Denied. This averment is a conclusion of law to which no response is required. 29. Denied. This averment is a conclusion of law to which no response is required. 30. Denied. This averment is a conclusion of law to which no response is required. 31. Denied. This averment is a conclusion of law to which no response is required. Further, the averment is denied in that Defendants have materially failed to perform under the parties' agreement. 32. Denied. This averment is a conclusion of law to which no response is required, and the averment is denied factually because there were no false representations. 33. Denied. This averment is a conclusion of law to which no response is required. 34. Denied. This averment is a conclusion of law to which no response is required. 35. Denied as stated. Part of the timing of Plaintiffs suit was his efforts to find Defendants, after they vacated the property and did not disclose their whereabouts. Furthermore, the averment is irrelevant; it makes absolutely no difference when Plaintiff instituted the action as long as it is instituted within the statute of limitation, which it is. 36. Denied. This averment is a conclusion of law to which no response is required. 27. Denied. This averment is a conclusion of law to which no response is required. 38. Denied. This averment is a conclusion of law to which no response is required. WHEREFORE, Plaintiff requests this Honorable Court to dismiss Defendants' New Matter, enter judgment on Plaintiff's Complaint in favor of Plaintiff and jointly and severally a against the Defendants, tax the costs of this action against the Defendants and provide any other relief this Court deems appropriate. / dwb te 6 Attorney for P14intyf 407 North Fron , First Floor Harrisburg, PA 17101 (717) 238-3686 Supreme Court I.D. # 53729 3 VERIFICATION I, Shawn W. Gilmore, Plaintiff in the foregoing action, verify that the facts set forth in the attached document are true and correct to the best of my knowledge, information and belief. I so state subject to the penalties of 18 Pa. C. S. §4904 (relating to unworn falsification to authorities). JULY 13, 2006 '-^ey Date Shawn W. Gilmore SHAWN W. GILMORE vs Case No. 06-2021 CIVIL TERM KENNETH ABATE and EMMA V ABATE, Husband and Wife To the Court: Statement of Intention to Proceed SHAWN W. GILMORE, PLAINTIFF Print Name ANTHONY T. MCBETH Date: SEPTEMBER 2, 2009 Sign Attorney for Explanatory Comment matter. PLAINTIFF The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit comment. 1. Rule of civil Procedure New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting local rules. This rule was promulgated in response to the decision of the Supreme Court in Shop v. Eagle, 551 Pa. 360,710 A.2d 1104 (1998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901." Rule of Judicial Administration 1901(b) has been amended to accommodate the new rule of civil procedure. The general policy of the prompt disposition of matters set forth in subdivision (a) of that rule continues to be applicable. II Inactive Cases The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system The process is initiated by the court. After giving notice of intent to terminate an action for inactivity, the course of the procedure is with the parties. If the parties do not wish to pursue the case, they will take no action and "the Prothonotary shall enter an order as of course terminating the matter with prejudice for failure to prosecute." If a party wishes to pursue the matter, he or she will file a notice of intention to proceed and the action shall continue. a. Where the action has been terminated If the action is terminated when a party believes that it should not have been terminated, that party may proceed under Ru1e230(d) for relief from the order of termination. An example of such an occurrence might be the termination of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file the notice of intention to proceed. The timing of the filing of the petition to reinstate the action is important. ff the petition is filed within thirty days of the entry of the order of termination on the docket, subdivision (d)(2) provides that the court must grant the petition and reinstate the action. If the petition is filed later than the thirty-day period, subdivision (d)(3) requires that the plaintiff must make a show in to the court that the petition was promptly filed and that there is a reasonable explanation or legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of termination on the docket and for the failure to file the petition within the thirty-day period under subdivision (d)(2). B. Where the action has not been terminated An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a common law non pros which exits independently of termination under Rule 230.2. RLEG-OFRCE QE THE cF, ;7. {i'WOTARY 2009 S EP -3 PM 2: 39 KOPE & ASSOCIATES, LLC Nathan Volpi Attorney ID 314604 3900 Market Street Camp Hill, PA 17011 (717) 761-7573 nvolpi@kopelaw.com Petitioner SHAWN W. GILMORE : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. KENNETH ABATE AND EMMA ABATE, Defendants : NO.: 2006-2021 : CIVIL ACTION - LAW : JURY TRIAL DEMANDED PETITION FOR LEAVE TO WITHDRAWAL AS COUNSEL NOW, this 19th of December, 2014 comes Kope & Associates, LLC as Petitioner, who represents Defendants, Kenneth and Emma Abate, in the above -captioned matter, and files this Petition to Withdrawal as Counsel and avers the following: 1. Petitioner, Shane B. Kope, Esq. and Kope & Associates, LLC, are presently counsel of record for Defendants Kenneth and Emma Abate, in the above - captioned matter. 2. Respondents are Kenneth and Emma Abate with an address of 3 North Enola Drive, Enola, PA 17025. 3. Petitioner began representing Respondents in the above docketed case in 2006. 2006: 4. Petitioner has not had any contact with Respondents at all since August, 5. At that time, Respondents had not made full payment to Petitioner and were not returning contact. 6. Petitioner avers that this requested withdrawal of appearance will not have a material adverse effect on the interests of the Respondents as Petitioner has not been assisting Respondents with this case for eight (8) years. 7. Respondents have thus failed to substantially fulfill an obligation to Petitioner regarding Petitioner's services and has been given a very reasonable amount of time to correct the issue. 8. Continued representation of the Respondents by the Petitioner would therefore result in an unreasonable financial burden on Petitioner. 9. Petitioner has supplied a copy of this Petition for Leave to Withdrawal as Counsel upon both Plaintiff and the Respondents. WHEREFORE, Petitioner respectfully requests This Honorable Court permit Shane B. Kope, Esquire and Kope & Associates, LLC to withdraw as counsel for Respondents. Respectfully submitted, athan Volpi, sq. PA I.D.: 314604 Shane B. Kope, Esq. PA I.D.: 92207 3900 Market Street Camp Hill, PA 17011 SHAWN W. GILMORE : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. KENNETH ABATE AND EMMA ABATE, Defendants : NO.: 2006-2021 : CIVIL ACTION - LAW : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Nathan Volpi, Esquire of Kope & Associates, LLC, hereby certify that a true and correct copy of the foregoing Petition to Withdraw as Counsel and Rule was served this date upon the below -referenced individuals at the below listed addresses by way of first class mail, postage pre -paid: Anthony McBeth, Esq. 407 N. Front Street, Cameron Mansion Harrisburg, PA 17101 Date: December / , 2014 Kenneth and Emma Abate 3 N. Enola Drive Enola, PA 17025 KOPE & SSOCIATES, LLC kir 1k at an Vol •f, E q. v '7 PA I.D.: 314604 Shane B. Kope, Esq. PA I.D.: 92207 3900 Market Street Camp Hill, PA 17011