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HomeMy WebLinkAbout02-1696K & H FORD, INC. Plaintiff V. MIKE'S AUTO SALES Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Civil Action - Law : : PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please issue a Writ of Summons in the above-captioned action on behalf of K & H Ford, Inc, Mechanicsburg, Pennsylvania and against MIKE'S AUTO SALES, INC., 5100 Buchanan Trail East, Waynesboro, PA. X Writ of Summons shall be issued and forwarded to ( ) Attorney (XX) Sheriff Dated: I.D. No. 77419 LAWRENCE R. WIEDER, ESQUIRE I.D. NO. 16701 100 PINE STREET, P.O. Box 1166 Harrisburg, PA 17108 (717)237-5381 Attorneys for Plaintiff WRIT OF SUMMONS TO THE ABOVE NAMED DEFENDANT: YOU ARE NOTIFIED THAT THE ABOVE-NAMED/ ACTION AGAINST YOU. ~~ ~0~ Pr~ Date:J _~ / by ( ) Check~ here if reverse is issued for LAINTIFF HAS GOMMENCED AN '' %X,..,/ " -D~p~t Y additional information A145330: SHERIFF'S RETURN CASE NO: 2002'-01696 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND K & H FORD INC VS MIKE'S AUTO SALES - OUT OF COUNTY R. Thomas Kline duly sworn according to law, and inquiry for the within named DEFENDANT , to wit: MIKE'S AUTO SALES but was unable to locate Them in his bailiwick. deputized the sheriff of FRANKLIN County, serve the within WRIT OF SUMMONS , Sheriff or Deputy Sheriff who being says, that he made a diligent search and He therefore Pennsylvania, to On May 3rd , 2002 , this office was in receipt of the attached return from FRANKLIN Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep Franklin Co 43.86 .00 80.86 0s/03/2002 So answers: j~- / .- ~ R/.' Thomas Klin~ ~ Sheriff of Cumberland County MCNEES WALLACE NURICK Sworn and subscribed to before me this / 7 ~ day of ~ ; ~op_ A.D. ' ' Prothonot~r~ SHERIFF'S RETURN - CASE NO: 2002-00050 T COMMONWEALTH OF PENNSYLVANIA: COUNTY OF FP~kNKLIN K AND H FORD INC VS MIKES AUTO SALES INC PRESTON L STRAYER REGULAR County, Pennsylvania, who being duly says, the within PRAE WRIT SUMMONS MIKES AUTO SALES INC Deputy Sheriff of FRANKLIN sworn according to law, was served upon the DEFENDANT , at 1134:00 Hour, at 5100 BUCHANAN TR3tIL EAST WAYNESBORO, PA 17268 WILLIAM SHIVES- MAI~AGER on the 12th day of April by handing to , 2002 a true and attested copy of PRAE WRIT SUMMONS together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 9.00 Service 9.00 Affidavit 6.00 Surcharge 10.00 Mileage 9.86 43.86 Sworn and Subscribed to before me this ~ day of ~ ~ ~F- A. D. ~tary By Deputy Sheriff 04/29/2002 CUMBERLAND COUNTY SHERIFF Notadal Seal Patdcia A Stdne, Notary Public .C, hambersb~r9 r~,~, Franklin County i%rlY Com~;~s}on Ex~,,,~es NOV. 4. 2004 K & H FORD, INC., Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY VS. NO. 2002-1696 MIKE'S AUTO SALES, INC. Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU 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 Lawyer Referral Service 2 Liberty Avenue Carlisle, PA 17103 Telephone (717) 249-3166 McNEES, WALLACE & NU~:~ICK I~rbara A. Darkes Attorney I.D. No. 77419 Pamela L. Purdy Attorney I.D. No. 85783 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 (717) 237-5381 Date: July 23, 2002 Attorneys for K & H Ford, Inc. K & H FORD, INC., Plaintiff VS. MIKE'S AUTO SALES, INC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 2002-1696 CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT AND NOW, comes K & H Ford, Inc., by and through its counsel, McNees Wallace and Nurick LLC, and files this Complaint against Mike's Auto Sales, Inc. and avers the following in support thereof: 1. K & H Ford, Inc. ("K & H") is a Pennsylvania corporation with a mailing address of P.O. Box 1177, Mechanicsburg, PA 17055. 2. Mike's Auto Sales, Inc. ("Mike's") is a Pennsylvania corporation and a licensed Pennsylvania used automobile dealer with its principal place of business at 5100 Buchanan Trail, East Waynesboro, PA 17268. 3. On or about September 20, 2000, while in Cumberland County, K &H agreed to sell a 1993 Ford Aerostar, Vehicle Identification Number 1FMDA31X4PZB25323 ("the Aerostar"), to Mike's in exchange for $2,500.00. 4. On or about September 20, 2000, while in Cumberland County, K & H agreed to sell a 1991 Dodge Dakota, Vehicle Identification Number 1B7FL26XOMS218208 ("the Dakota"), to Mike's in exchange for $2,000.00. 5. On or about September 20, 2000, while in Cumberland County, K & H agreed to sell a 1996 Dodge Neon, Vehicle Identification Number 1B3ES22C3TD587876 ("the Neon") to Mike's in exchange for $3,800.00. 6. Mike's agreed to pay K & H the $8,300.00 for the Aerostar, the Dakota and the Neon (collectively "the Vehicles") upon receipt of the assigned certificates of K & H assigned and delivered the certificates of title for the Vehicles to service. 7. Mike's. 8. 9. Mike's has not paid K & H the $8,300.00 for the Vehicles. On May 31,2001, K & H sent a letter to Mike's requesting payment for the Vehicles in the amount of $8,300.00, or, in the alternative, proof of prior payment. A true and correct copy of the letter dated May 31, 2001, is attached hereto as Exhibit "A." 10. Mike's failed to respond to K & H's letter of May 31, 2001. 11. On March 12, 2002, K & H, through counsel, sent a letter to Mike's requesting payment for the Vehicles in the amount of $8,300.00. A true and correct copy of the letter dated March 12, 2002, is attached hereto as Exhibit "B." 12. Mike's failed to respond to K & H's letter of March 12, 2002. 13. To this day, K & H has not received payment for the Vehicles from Mike's. COUNT I BREACH OF CONTRACT 14. The paragraphs numbered 1 through 13 are incorporated herein as though set forth at length. -2- 15. On or about September 20, 2000, the parties entered into contracts in which Mike's agreed to pay K & H a total of $8,300.00 for the Vehicles and K & H agreed to transfer the certificates of title for the Vehicles to Mike's. 16. K & H fulfilled its promises by transferring the certificates of title for the Vehicles to Mike's. 17. Mike's has not paid K & H $8,300.00 for the Vehicles and, therefore, has failed to fulfill its promise under the contracts. 18. Mike's failure to pay K & H $8,300.00 for the Vehicles is a breach of the contract. WHEREFORE, K & H requests judgment for all damages that it has sustained, including, without limitation, liquidated damages in the amount of $8,300.00, attorney fees, and unliquidated damages. COUNT II UNJUST ENRICHMENT 19. The paragraphs numbered 1 through 18 are incorporated herein as though set forth at length. 20. Mike's agreed to pay K & H $8,300.00 for the Vehicles. Mike's took possession of the Vehicles and sold the Vehicles to third 21. parties. 22. 23. Mike's has not paid K & H for the Vehicles. Mike's has received the benefit of the bargain in the contract it entered into with K & H in that K & H, based upon Mike's representations, transferred the certificates -3- of title for the Vehicles to Mike's and allowed Mike's to sell the Vehicles to third parties, but Mike's has not paid K & H the $8,300.00 for the Vehicles. 24. If Mike's is not required to pay K & H $8,300.00, the agreed purchase price for the Vehicles, Mike's will be unjustly enriched at K & H's expense. WHEREFORE, K & H requests judgment for all damages that it has sustained, including, without limitation, liquidated damages in the amount of $8,300.00, attorney fees, and unliquidated damages. COUNT III FRAUDULENT MISREPRESENTATION 25. The paragraphs numbered 1 through 24 are incorporated herein as though set forth at length. 26. When agreeing to purchase the Vehicles, Mike's misrepresented that it would pay $8,300.00 for the Vehicles. 27. Mike's knew that the facts it provided to K & H regarding its willingness to pay for the Vehicles were not representative of the truth or Mike's acted with recklessness as to the truth or falsity of these facts. 28. The misrepresentations made to K & H by Mike's relative to Mike's willingness to pay for the Vehicles were material and misleading to the transaction. 29. K & H justifiably relied upon the misrepresentations made by Mike's to its detriment. 30. In reliance upon Mike's misrepresentations, K & H transferred the certificates of title for the Vehicles to Mike's prior to receiving payment. 31. In reality, Mike's never intended to pay K & H for the Vehicles. -4- 32. K & H did not know and could not have known that Mike's was not going to pay for the Vehicles. 33. As a direct and proximate result of Mike's fraudulent misrepresentations, Faulkner sustained liquidated damages in the amount of $8,300.00 and unliquidated damages, including attorney fees and interest, in an amount to be determined. WHEREFORE, K & H requests judgment for all damages that it has sustained, including, without limitation, liquidated damages in the amount of $8,300.00, attorney fees, and unliquidated damages. COUNT IV NEGLIGENT MISREPRESENTATION 34. The paragraphs numbered 1 through 33 are incorporated herein as though set forth at length. 35. When agreeing to purchase the Vehicles from K & H, Mike's misrepresented to K & H that it was going to pay $8,300.00 to K & H for the Vehicles. 36. These facts misrepresented by Mike's to K & H were material facts. 37. Mike's made these misrepresentations of material facts when it ought to have known of the falsity of these facts. 38. Mike's made these misrepresentations of material facts to induce K & H to transfer the certificates of title for the Vehicles to Mike's. 39. As a direct and proximate result of Mike's material misrepresentations, K & H has suffered liquidated damages in the amount of $8,300.00 and unliquidated damages, including attorney fees, in an amount to be determined. -5- WHEREFORE, K & H requests judgment for all damages that it has sustained, including, without limitation, liquidated damages in the amount of $8,300.00, attorney fees, and unliquidated damages. Respectfully Submitted, McNEES WALLACE & NURICK LLC By ~arbara A. Darkes Attorney I.D. No. 77419 Pamela L. Purdy ^ttorney I.D. No. 85783 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 (717) 237-5381 Attorneys for K & H Ford, Inc. Date: July 23, 2002 -6- May 31, 2001 Mike's Auto Sales 5100 Buchanan Trail East Waynesboro, PA 17268 Reft Money Due on Vehicle Purchases To Whom It May Concern: Duri~g an audit of the final accounting records for K & H Ford, Inc., I have discovered that these records indicate that you owe a balance of Eight Thousand, Three Hundred Dollars ($8,300.00). Within ten (10) days of receipt of this letter, plea.se forward this alllOUllt: K & H Ford, Inc. Box 1177 Meehanicsburg, PA 17055 If funds, or a response and evidence indicating that you do not owe this amount (will need proof of payment for all vehicles purehas~ between July 1, 2000 and December 8, 2000), are not received by the above date, I will suggest to K & H Ford, Inc. that they contact counsel and follow any and all legal avenues available to thew Thank-Yo~ KarenD~bler AudRor McNees Wallace & Nurick,Lc attorneys at law VIA CERTIFIED MAIL Mike's Auto Sales 5100 Buchanan Trail East Waynesboro, PA 17268 March 12, 2002 BARBARA A. DARKES DIRECT DIAL: (717) 237-5381 E-MAIL ADDRESS: BDARKES(~MWN.COM 7160 3901 9844 7736 0946 RE: K & H Ford, Inc. Outstanding Debt Our File: 19482-0001 Dear Sir/Madam: In one last effort to resolve this matter prior to filing our Complaint, we remind you of the following: On September 20, 200/~,, Mike's Auto Sales purchased the following vehicles from K & H Ford, Inc.: $2,5OO.OO. 2. $2,OOO.OO. 3. $3,8OO.0O. 1993 Ford Aerostar - VIN: 1 FMDA31X4PZB25323 - Purchase Amount 1991 Dodge Dakota - VIN: 1B7FL26XOMS218208 - Purchase Amount 1996 Dodge Neon - VlN: 1B3ES22C3TD587876 - Purchase Amount To date, K & H Ford, Inc. has not received payment for the purchase of these vehicles. The total due is $8,300.00. If this account is not paid in full by the close of business on Friday, March 22, 2002, we will file our Complaint asserting claims including breach of contract, unjust enrichment and misrepresentation and will seek damages including liquidated damages in the amount of $8,300.00, interest from September 20, 2000, court costs and counsel fees. Your payment should be forwarded to our attention and should be made by certified funds or money order payable K & H Ford, Inc. Sincerely, McNEES WALLACE & NURICK LLC By Barb~ra ,~. Da~es PO Box 1166 · 100 PINE STREET · HARRISBURG, PA 17108-1166 · TEL: 717,232.8000 · FAX: 717.237.5300 · WWW.MWN.COM COLUMBUS, OH · HAZLETON, PA · WASHfNGTON, DC VERIFICATION Subject to the penalties of 18 Pa.C.S. {}4904 relating to unsworn falsification to authorities, I hereby certify that I am Lewis Appelbaum, President of K & H Ford, Inc., and I am authorized to vedfy this Complaint on its behalf, and further, that the facts set forth in the foregoing Complaint are true and correct to the best of my information and belief. ,~).~ ~~ / L~j~i~A~3pelbaum / / CERTIFICATE OF SERVlCI= The undersigned hereby certifies that on the 23rd day of July, 2002, a true and correct copy of the foregoing Complaint was served by first-class mail, postage prepaid, upon the following: Mike's Auto Sales 5100 Buchanan Trail East Waynesboro, PA 17268 Par~el~'L. Purdy Of Counsel for Plaintiff K & H Ford, Inc. Return this fonu to C~uberland County Sheriff's office. In The Court of Common Pleas of Cumberland County, Pennsylvania K&H Ford, Inc. VS. Mike' s Auto Sales SERVE: Mike's Auto Sales NO. 02 1696 civil Now, April 9, 2002 , I, SHERIFF OF CLrMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Franklin 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 a and made known to /9 M. served the copy of the original ~ 7 /~ the contents thereof. ~.~ela a3y Sh~riffof ],c-~a..~/, ~ County, PA Sworn and subscribed before me t]7~ ? day of ~, 20~9- MILEAGE / ~ ¢~ I .o,.,.,Soa,I ' ' / / Patdcia A Stfine, No~ Pub~ ] / ~m~mburg ~m Fran~in OounW I COSTS SERVICE K & H FORD, INC., Plaintiff VS. MIKE'S AUTO SALES, INC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 2002-1696 CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF JUDGMENT BY DEFAULT TO THE PROTHONOTARY: Pursuant to Pa. R. Civ. P. 1037(b), please enter judgment in the above-captioned action in favor of Plaintiff K & H Ford, Inc., and against Defendant Mike's Auto Sales, Inc. for failure to enter a written appearance personally or by attorney and file in writing with the Court its defenses or objections to the claims set forth against it. I hereby certify that a written Notice of intention to file this praecipe for entry of judgment by default was given in accordance with Pa. R. Civ. P. 237.1, a true and correct copy of which is attached hereto as Exhibit A. A copy of this Notice was served upon Defendant by United States mail, postage prepaid on August 29, 2002, at the following address: Mike's Auto Sales, Inc. 5100 Buchanan Trail East Waynesboro, PA 17268 The date of mailing of the Notice was more than ten (10) days prior to the filing of this Praecipe. Dated: September 13, 2002 McNEESAWALLACE & NURICK LLC Barbara A. Darkes (~ Attorney I.D. No. 77419 Pamela L. Purdy Attorney I.D. No. 85783 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 (717) 237-5381 Attorneys for K & H Ford, Inc. Exhibit A K & H FORD, INC., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY VS, NO. 2002-1696 MIKE'S AUTO SALES, INC. CIVIL ACTION - LAW Defendant JURY TRIAL DEMANDED IMPORTANT NOTICE To: MIKE'S AUTO SALES, INC., Defendant Date of Notice: August 29, 2002 YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT.YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING, AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association Lawyer Referral Service 2 Liberty Avenue Carlisle, PA 17103 Telephone (717) 249-3166 McNEE, S WALLACE & NUR/'~K LLC By Barbara A. Darkes /¥ Attorney I.D. No. 77419 ~ Pamela L. Purdy Attorney I.D. No. 85783 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 (717) 237-5381 Attorneys for K & H Ford, Inc. CERTIFICATE OF SERVICE I hereby certify that I have this day served a copy of the foregoing Praecipe for Entry of Judgment by Default upon the following: Mike's Auto Sales, Inc. 5100 Buchanan Trail East Waynesboro, PA 17268 Pamela L. Purd'y (~ Dated: September 13, 2002 K & H FORD, iNC., Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY VS. NO. 2002-1696 MIKE'S AUTO SALES, INC. Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR WRIT OF EXECUTION TO THEPROTHONOTARY: Issue writ of execution in the above matter, (1) directed to the Sheriff of Franklin County, Pennsylvania; (2) against MIKE'S AUTO SALES, INC., Defendant; (3) and index this writ against MIKE'S AUTO SALES, INC., Defendant; (4) and direct the Sheriff of Franklin County, Pennsylvania, to attach any or all property of the Defendant in order to satisfy the judgment, interest and costs against Defendant MIKE'S AUTO SALES, INC.; (5) Amount Due: $8,300.00 (Plus interest at 6% from September 18, 2002 or $1.36/day, and costs to be determined.) McNEES WALLACE & NURICK LLC AB~t ~na~ iA. ~rok.e~7419 ~, Pamela L. Purdy Attorney I.D. No. 85783 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5381 Attorneys forK & H Ford, Inc. Dated: September 25, 2002 WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) NO 02-1696 Civil COUNTY OF CUMBERLAND) CIVIL ACTION - LAW TO THE SHERIFF OF FRANKLIN COUNTY: To satisfy the debt, interest and costs due K & H FORD, INC., Plaintiff(s) From MIKE'S AUTO SALES, INC., 5100 BUCHANAN TRAIL EAST, WAYNESBORO, PA 17268 (1) You are directed to levy upon the property of the defendant (s)and to sell ATTACH ANY OR ALL PROPERTY OF THE DEFENDANT IN ORDER TO SATISFY THE JUDGMENT, INTEREST AND COSTS AGAINST DEFENDANT MIKE'S AUTO SALES, INC. (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of GARNISHEE(S) as follows: and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and fi.om delivering any property of the defendant (s) or otherwise disposing thereof; (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due $8,300.00 L.L. $.50 Interest AT 6% FROM SEPTEMBER 18, 2002 OR $1.36/DAY, AND COSTS TO BE DETERMINED Atty's Corem % Due Prothy $1.00 Arty Paid $152.86 Other Costs Plaintiff Paid Date: SEPTEMBER 30, 2002 (Seal) CURTIS R. LONG Prothono~ Deputy REQUESTING PARTY: Name PAMELA L. PURDY, ESQUIRE Address: MCNEES WALLACE & NURICK LLC 100 PINE STREET P.O.BOX 1166 HARRISBURG, PA 17108-1166 Attorney for: PLAINTIFF Telephone: 717-237-5381 Supreme Court ID No. 85783