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HomeMy WebLinkAbout06-4289IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MBNA AMERICA BANK, N.A. No. 01. - y.v? 6.vc Tezrn 655 PAPER MILL ROAD MAIL STOP 1411 WILMINGTON DE 19884-1411 Plaintiff VS FRED BRILLHART 152 LANCASTER BLVD MECHANICSBURG PA 17055-3550 Defendant(s) CIVIL ACTION - LAW Filed on behalf of: Plaintiff, MBNA AMERICA BANK, N.A. Counsel of record for this party: Date: lax, Amy F. Doy a 7062 /Daniel F. olfson #20617 Philip C. Warholic #86341 drew C. Spears #8773 David R. Galloway #87326 / om yn ippi Sarah E. Ehasz #86469 / Robert N. Polas, Jr. #201259 Bruce H. Cherkis #18837 / Ronald S. Canter #94000 Ronald M. Abramson #94266 WOLPOFF & ABRAMSON, L.L.P. Attorneys in the Practice of Debt Collection 4660 Trindle Road, 3rd Floor Camp Hill, PA 17011 Telephone: (717) 303-6700 Counsel for Plaintiff W&A File No. 135831858 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MBNA AMERICA BANK, N.A. Plaintiff VS FRED BRILLHART Defendant(s) :No. :CIVIL ACTION - LAW 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 may be entered against you by the Court without further notice for any money claimed or any other claim or relief requested by the Plaintiff. You may lose money or property 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 HELP. 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 REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013- 717-249-3166 CCP Notice to Defend W&A File No. 135831858 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MBNA AMERICA BANK, N.A. Plaintiff :No. VS FRED BRILLHART Defendant(s) :CIVIL ACTION - LAW USTED HA SIDO DEMANDADO/A EN LA CORTE. Si usted desea defender conta la demanda puestas en las siguientes paginas, usted tienen que tomar acci6n dentro veinte (20) dies despuds que esta Demanda y Aviso es servido, con entrando por escrito una aparencia personalmente o por un abogado y archivando por escrito con la Corte sus defensas o objeciones a las demandas puestas en esta contra usted. Usted es advertido que si falla de hacerlo el caso puede proceder sin usted y un juzgamiento puede ser entrado conta usted por la Corte sin mas aviso por cualquier dinero reclamado en la Demanda o por cualquier otro reclamo o alivio solicitado por Demandante. Usted puede perder dinero o propiedad o otros derechos importante para usted. USTED DEBE LLEVAR ESTE PAPEL A SU ABOGADO ENSEGUIDA. SI USTED NO TIENE UN ABOGADO, VAYA O LLAME POR TELEFONO LA OFICINA FIJADA AQUI ABAJO. ESTA OFICINA PUEDE PROVEERE CON INFORMACION DE COMO CONSEGUIIt UN ABOGADO. SI USTED NO PUEDE PAGARLE A UN ABOGADO, ESTA OFICINA PUEDE PROVEERE INFORMACION ACERCA AGENCIAS. QUE PUEDAN OFRECER SERVICIOS LEGAL A PERSONAS ELIGIBLE AQ UN HONORARIO REDUCIDO O GRATIS. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013- 717-249-3166 CCP Notice to Defend W &A File No. 135831858 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MBNA AMERICA BANK, N.A. /?7- Plaintiff : No. D` - 4WT C'/va(,! ?,4l;1I VS. FRED BRILLHART CIVIL ACTION - LAW Defendant(s) AND NOW, this 06 day of July, 2006, comes the Plaintiff, MBNA America Bank, N.A., by and through its attorneys, the law firm of Wolpoff & Abramson, L.L.P., and files the within Complaint and in support avers as follows: Plaintiff, MBNA AMERICA BANK, N.A. , is a National Banking Association organized under the National Banking Act with principal place of business situated at P.O. BOX 15718, WILMINGTON, DELAWARE 19850. 2. Defendant, FRED BRILLHART, is an adult individual with a last known address of 152 LANCASTER BLVD, MECHANICSBURG, CUMBERLAND COUNTY, PA 17055-3550. It is averred that Defendant was issued an open-end credit card account by Plaintiff. This account was created through a written contract between Plaintiff and Defendant, accepted by Defendant when he signed and utilized the credit card account. A true and correct copy of the Credit Card Agreement governing this account is attached hereto as Exhibit "A." 4. The Credit Card Agreement contains a binding Arbitration provision providing that any claim or dispute between Defendant and Plaintiff would be subject to binding arbitration before the National Arbitration Forum (NAF). This Credit Card Agreement also recites that since the agreement involved an instrumentality of interstate commerce, that the Federal Arbitration Act, 9 U.S.C. §§1-16 CCP Cmplt - MENA W & A File No. 135831858 (FAA) governed the Agreement and that following disposition through the NAF, judgment may be entered in any state court having jurisdiction. 5. At all relevant times material hereto, Defendant has been regular user of said charge card for the purchase of products, goods and/or for obtaining services and/or funds. 6. By virtue of Defendant's use and maintenance of this credit card in connection with his purchases of goods, and services, he became bound to all of its contractual terms, which clearly included an arbitration agreement. Therefore, there is a valid agreement to arbitrate and Defendant consented to the NAF having jurisdiction over this claim. 7. Defendant received monthly statements which accurately state all purchases and payments made during the month, interest charges imposed on the unpaid balance, and the amount due. A summary of the account showing the balance due and owing is incorporated herein and marked as Exhibit "B". 8. Defendant did not object to the above-mentioned Statements of Account submitted by Plaintiff to Defendant. 9. Defendant has made sporadic and irregular payments, if any, which have been applied to the outstanding balance of this account. 10. As of the date of the within Complaint, the remaining balance due, owing and unpaid on Defendant's credit account, as a result of charges made by said Defendant and/or any authorized users is the sum of $5,947.44. 11. Pursuant to the Credit Agreement and/or applicable Pennsylvania law, any unpaid and/or delinquent balances on said account shall continue to bear interest at the rate of %. 12. The amount of interest which has accrued on the aforementioned account is the sum of $1,536.88. CCP Cmplt - MBNA W & A File No. 135831858 13. Plaintiff has retained the services of the law firm of Wolpoff & Abramson, L.L.P. in the collection of the amount due from Defendant. 14. As of the filing of this Complaint, Plaintiff has incurred reasonable attorney's fees from the law office of Wolpoff & Abramson, L.L.P. in the collection of the collection of the amounts due from Defendant incident to the within action, the Plaintiff shall continue to incur such attorney's fees throughout the conclusion of the proceedings. 15. The amount of attorney's fees incurred in this matter is the sum of $892.11. 16. Despite reasonable and repeated demands for payment, Defendant has failed, refused and continues to refuse to pay all sums due and owing on the aforementioned account balance, all to the damage and detriment of the Plaintiff. 17. Any and all conditions precedent to the bringing of this action have been performed by Plaintiff. 18. The amount in controversy is within the jurisdictional amount requiring compulsory arbitration. CCP Cmplt - MBNA W & A File No. 135831858 WHEREFORE, Plaintiff, MBNA America Bank, N.A., respectfully requests this Honorable Court enter judgment in favor of Plaintiff and against Defendants, in the amount of $5,947.44, plus interest in the amount of $1,536.88, plus attorney's fees in the amount of $892.11, plus costs of this action and any other relief as this Court deems proper and just. Respectfully submitted, Date: Amy F. oyle #87062 / Daniel F. Wolfson #20617 Philip C. Warholic #86341 / Andrew C. Spears #87737 David R. Galloway #87326 / Tonilyn M. Chippie #87852 Sarah E. Ehasz #86469 / Robert N. Polas, Jr. #201259 Bruce H. Cherkis #18837 /Ronald S. Canter #94000 Ronald M. Abramson #94266 WOLPOFF & ABRAMSON, L.L.P. Attorneys in the Practice of Debt Collection 4660 Trindle Road, 3rd Floor Camp Hill, PA 17011 Telephone: (717) 303-6700 Counsel for Plaintiff CCP Cmplt - M 3NA W & A File No. 135831858 VERIFICATION The undersigned hereby states that he/she is the attorney for the Plaintiff, MBNA America Bank, N.A., who is located outside of this jurisdiction and in order to file the within document in an expedient and timely manner, he/she is authorized to take this verification on behalf of said Plaintiff in the within action and verifies that the statements made in the foregoing Complaint are true and correct to the best of his/her knowledge, information, and belief, based upon information provided by the Plaintiff. The undersigned understands that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unworn falsification to authorities. Date: 7114 (SL - , Amy F. Doyle #87062 / Daniel F. Wolfson #20617 Philip C. Warholic #86341 / Andrew C. Spears #87737 David R. Galloway #87326 / Tonilyn M. Chippie #87852 Sarah E. Ehasz #86469 / Robert N. Polas, Jr. #201259 Bruce H. Cherkis #18837 / Ronald S. Canter #94000 Ronald M. Abramson #94266 WOLPOFF & ABRAMSON, L.L.P. Attorneys in the Practice of Debt Collection 4660 Trindle Road, 3rd Floor Camp Hill, PA 17011 Telephone: (717) 303-6700 Counsel for Plaintiff CCP Cmplt - MBNA W & A File No. 135831858 Exhibit "A" 1(. rC .Y S . ' i• LAP yC p Y ? `? .] 6 r w n 111111I Q. its . . I'_ts till lkti RH 5' I ?.? Itl ' I ?tiis, tj ? 11112, 4r fla H g$ is a r i r titer • i• to five t s y r ? D as 3 2 lit r? k a 1M, MS M 11. p fills Ht!I III 1111*11W 2 s - fill .913, t ISM g r? s at Is I 11 _ Ens 3I 3$ 111 A alit g'. 'qsj. .x III I sN= lit 13 $ JI x s¢ I? _ Q -1 A V* i FIL -? ° is ? ?? all I it o H It, gg$g ee iy a_pp g.g• a spi cif g -g'o t lit lit R 1IFS-Ifivi S4 It's i7?A -41 6?lt ¢ 4; 8¢ $g IL ir ffc $ ? .?? a¢ ;rte $?• ? ?? fit H ss or ffe ail i off I It SSt I all$ s; Has Sad E?$tlf _a a?aitg it] 11M, ill R I at q3 1 $ ¢Ql I 1160 J1 411111 I 0 a 11 11 ` 3 ? Ito 3 ?.? ?q a [fit. FS sit tim i it; let lit I lit a s $a $1211 ? ml ; i 9# a _ ill l$ a a is s ! r, tit t 11136 or 'ILI H 11 t. f ifgi= _ i well ?i y4 !< 3 a.• ?.. :fit ?3N till l till ILt lit a L q? a .S Mx L $ lit « s ssa a[ i as; 4 S q 3 a SO &1 11 x s s 3 g ? ?p ° $ $ pA 40 ?" 3 fS p Fit, ILI got Sri I H. 1;11 tit lit, Exhibit "B" CLIENT NO 001730 MBNA ACCT#4284280978005180 BALANCE --5,947.44 ***** PRIMARY DEBTOR ***** C/O DATE 01/01/69 LSTPY DT 08/04/04 M-ACCT-NO *M-REC-TYPE*M-CUST-TYPE*M-LAST-NAME 4 264280978005180 A I BRILLHART M-FIRST-NAME *M-ADDR-1 *M-ADDR-2 F RED 152 LANCASTER BLVD M-CITY *M-COUNTY *M-STATE*M-ZIP *M-HOME-PH M ECHANICSBURG PA 170553550 7177661332 M-WORK-PH *M-DOB *M-POE-NAME 7 177661332 03/06/52 M-POE-ADDR *M-LOAN-TYPE*M-LENDING-OFFICER LV01 OV0001 M-BANK-CODE*M-BRANCH-CODE*M-CALL-CODE*M-RECOVERER-CODE*M-DEALER-CODE LMGR 978 M-CO-RSN*M-ACCT-STATUS*M-INT-RATE*M-RECEIPT-DATE*M-CONTACT-DATE*M-CO-DATE PAA 0000 01125/05 02/24/03 01/01/69 M-LAST-PYMT-DATE*M-CO-AMT *M-ASSOC-COST*M-ACCRUED-INT*M-CUR-BAL 0 8/04/04 5,947.44 .00 .00 5,947.44 *M-NE T-PRIN *M-NET-COST *M-NET-INT *M-COMMENT-1 5,947 .44 .00 .00 MMMMIAMM12345 *M-COMME NT-2 001 2005 0125 0000050 *M-COMME NT-3 *M-COMMENT-DATE 01/25/05 *M-2ND-N AME *M-MONTHLY-INCOME*M-OTHER-INCOME 41.66 .00 *M-MONTHLY -PYMT*M-OTHER-PYMT*M-OWN-RENT-CODE*M-RECOVERY-SCORE*M-NEXT-PAY-DATE .00 .00 R 0694 *M-LAST-INT- DATE*M-LAST-CONTACT-DATE*M-COMM-RATE*M-HOME-PH-FLAG*M-WORK-PH-FLAG 0000 *M-ADDR-FLAG *M-SSN *M-MIO*M-AG VI ry ri d ? 't'? y ? chi IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION MBNA AMERICA BANK, N.A. 655 PAPER MH L ROAD MAIL STOP 1411 WILMINGTON, DE. 19884-1411 Plaintiff, VS. FRED BRILLHART 152 LANCASTER BLVD. MECHANICSBURG, PA. 17055-3550 Defendant. COMPLAINT C-71-7 -7C, G-- 13 3 ?2_ NOTICE TO PLEAD To: MBNA AMERICA BANK, N.A. in care of WOLPOFF & ABRAMSON, LX-P, Counsel of Record You are hereby notified to file a written response to the enclosed Preliminary Objections within twenty (20) days from service hereof or a judgment may be entered against you. ?-? X-, Fred Brillhart - Defendant pro se 152 Lancaster Blvd. Mechanicsburg, Pa. 17055 Civil Action No.: 06-4289 PRELIMINARY OBJECTIONS TO PLAINTIFF'S IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION MBNA AMERICA BANK, N.A. ) 655 PAPER MULL ROAD ) MAIL STOP 1411 ) WILMINGTON, DE. 19884-1411 ) Plaintiff, ) VS. ) FRED BRILLHART ) 152 LANCASTER BLVD. ) MECHANICSBURG, PA. 17055-3550 ) Defendant. ) Civil Action No.: 06-4289 PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT (717) 7«-- 1332, PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT COMES NOW, Fred Brillhart hereinafter "Brillhart" not an attorney or learned in the law, on his own behalf by special visitation to submit the following Preliminary Objections to Plaintiff's Complaint. Please take note the Petitioner in this matter is a pro se litigant. Accordingly, Said pro se litigant respectfully requests the court's help in framing the issues and re-characterizing any pleadings pursuant to Haines v. Kerner 404 US 519 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972) (per curiam); Hughes v. Rowe, 449 U. S. 5, 10, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980) (per curiam); and Andrews v. United States, 373 U.S. 334, 10 L. Ed. 2d 383, 83 S. Ct. 1236 (1963) in the light most favorable to Petitioner. "Brillhart" now says: 1. That Brillhart makes special visitation to this court to timely object in the form of Defendant's Preliminary Objects to Plaintiff's Complaint. 2. That Brillhart does not waive any claims or rights by this special visitation and reserves all rights throughout this process. 3. Plaintiff alleges/avers in paragraph 3 of their complaint, "Defendant was issued an open-end credit card account by Plaintiff'. Plaintiff fails to provide as evidenced herein Brillhart was issued anything. 4. Plaintiff further alleges/avers per paragraph 3 of their complaint, "This account was created through a written contract between Plaintiff and Defendant, accepted by Defendant when he signed and utilized the credit card agreement." Plaintiff fails to provide any evidence of a signed contract, that in fact, Brillhart actually utilized the purported agreement now in question, or that the alleged agreement (if any) was in the form of a credit card. 5. Pursuant to Pa. R.C.P. 1028 (a)(1), The alleged Plaintiff lacks "jurisdiction over the subject matter of the action or the person of the defendant" as the alleged Plaintiff is not the real party of interest. Said Plaintiff, by their own submitted documentation, and/or the blatant lack thereof, has failed to show they have any right to bring this action (or any action) against Brillhart. 6. Plaintiff completes paragraph 3 of their complaint by stating, "A true and correct copy of the Credit Card Agreement governing this account is attached hereto as Exhibit "A". Said " Exhibit A" is an illegible copy of extremely poor quality and content. Said "exhibit" is presumably a "template" which, regardless of Plaintiff's contention(s), fails to establish any specific applicability towards Brillhart. 7. The alleged Plaintiff has violated Pa. R.C.P. 1019(h) and (i) by not stating whether the Contract was oral or written and did not attach the original contract to the Complaint as required. 8. Pursuant to paragraph 4 of Plaintiff's complaint, " The Credit Card Agreement contains binding Arbitration provision providing that any claim or dispute between Defendant and Plaintiff would be subject to binding arbitration before the National Arbitration Forum (NAF)." Plaintiff's have failed to establish through their pleading, any "Agreement" or "Contract" obligating Brillhart to anything. As to the "Arbitration Clause", per Exhibit "A" of Plaintiff's attachment(s), said exhibit is illegible; portions relative to what may be a generic arbitration agreement are missing and/or cut out of this poorly conceived Exhibit. If Plaintiff actually thought they possess an actual "Contract" and/or "Agreement" between themselves and Brillhart, and said agreement calls for binding "Arbitration", how is it Brillhart finds himself now before this Court? 9. Pursuant to paragraph 5 of Plaintiff's complaint, Plaintiff fails to provide any evidence whatsoever as otherwise alleged therein. The alleged Plaintiff has violated Pa. R.C.P 1019(f) which states in pertinent part, "averments of time, place and items of special damage shall be specifically stated." by filing this Complaint, and fails to set forth any specific averment of time, place, date, liability for payment, nonpayment of and/or refusal to make payment of any alleged account 10. Pursuant to paragraph 6 of Plaintiff's complaint, Plaintiff makes assumptions not in evidence. Plaintiff has failed to show there is a signed contract or agreement specifically between the respective parties, or any evidence that Brillhart made use thereof as otherwise alleged. 11. Pursuant to paragraph 7 of Plaintiff's complaint, Plaintiff provides no evidence of the alleged monthly statements, or in fact, that Brillhart had received them. 12. Concerning "Exhibit B" of Plaintiff s complaint as referenced in paragraph 7, said exhibit is a purely computer generated document, unattested, and thus refuted as hearsay. 13. Per paragraph 8 of plaintiffs complaint, what statements? 14. Per paragraph 9 of Plaintiff's complaint, Plaintiff has failed to provide any evidence of what was paid, by whom, for what purpose, or anything else. 15. Per paragraph 10 of Plaintiffs complaint, Plaintiff fails to provide any proper and/or legitimate accounting, which demonstrates Brillhart owes anything. 16. Pursuant to paragraphs 11 and 12 of Plaintiffs complaint, Plaintiff fails to establish that there is any agreement, therefore, what interest? Plaintiff alludes to no actual interest rate applied, yet summarily projects an interest amount as if due. 17. Plaintiff alleges in paragraph 13, there is an agreement between counsel who is proffering this complaint and the Plantiff, yet no such agreement is in evidence. Brillhart contends that Counsel may have "purchased " this alleged debt, based solely on their woefully inadequate exhibits, or, in the alternative, are pursuing said action, again, based on exhibits that fail to support their contention(s) in furtherance of a champertous relationship. 18. Per paragraphs 14 and 15 of Plaintiff's complaint, there is no evidence before this court that Plaintiff's counsel, aside from filing this poorly conceived frivolous suit, has incurred any expense as they now represent. 19. Pursuant to paragraph 16 of Plaintiff's complaint, there is no evidence before this Court that Plaintiff's made any attempts, demands, or otherwise upon Brillhart, or that Brillhart subsequently failed, refused, and/or continues to refuse to pay all sums, as otherwise alleged. Plaintiff has failed to demonstrate, by virtue of their own pleading that they are entitled to any relief from anybody, certainly not Brillhart as they now feign this Court to believe. 20. Per paragraph 17 of Plaintiff's complaint, there exists no evidence herein, that Plaintiff's have performed anything. 21. Despite the fact that Plaintiff repeatedly asserts the right to arbitrate; that such right is binding by the alleged agreement; that Plaintiff has failed to produce any contract/agreement signed by Brillhart; Brillhart unequivocally asserts all of his rights, including but not limited to his right to trial by jury as provided for under the United States Constitution and the Pennsylvania Constitution, inviolate. 22. Plaintiff in their "verification" of the Complaint is signed by an attorney in violation of Pa. R.C.P. 1002, which states in pertinent part, "Any act other than verification required or authorized by this chapter to be done by a party may be done by the party's attorney" 23. In the alternative, the alleged Plaintiff's attorney having signed the "verification" is no less in violation of Pa.R.C.P. 1024(b) in that said complaint contains "averments which are inconsistent with fact" to which, verification requires "the signer has knowledge or information sufficient to form a belief that one of them is true", and 24. Pursuant to Pa. R.C.P 1024(c), which reads in pertinent part, "In such cases, the verification may be made by any person having sufficient knowledge or information and belief and shall set forth the source of the person's information as to matters not stated upon his own knowledge and reason why the verification is not made by a party Recoupment of Fees and Costs This court lacks jurisdiction to consider Plaintiff's complaint and Plaintiff lacks standing to sustain its action against Brillhart. Plaintiff's actions have forced Brillhart to expend time taken away from gainful employment, costs for legal research, travel and related expenditures, in order to avoid threat of judgment; based on a Complaint that fails to substantiate any claim. Brillhart has actually incurred the expenses in excess of approximately 50 man-hours in lost wages, costs in defending himself against vexatious litigation to date, and is entitled to recover this amount, and any additional that may be incurred prior to the conclusion of any related proceedings. PRAYER FOR RELIEF WHEREFORE, Brilhart prays this Court fulfill its magisterial duty and: Summarily dismiss Plaintiff's complaint; 2. Grant Brillhart recoupment of fees and costs; and 3. Grant any relief this Court deems just and appropriate. Respectfully Submitted, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION MBNA AMERICA BANK, N.A. 655 PAPER MILL ROAD MAIL STOP 1411 WILMINGTON, DE. 19884-1411 Plaintiff, VS. FRED BRILLHART Civil Action No.: 06-4289 PRELIMINARY OBJECTIONS TO PLAINTIFF'S 152 LANCASTER BLVD. MECHANICSBURG, PA. 17055-3550 Defendant COMPLAINT -7 1 -7`Z ('y G - 13 3 2, CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of Defendant's Preliminary Objections to Plaintiff's Complaint was served on Plaintiff's attorney, Andrew C. Spears of Wolpoff & Abramson, L.L.P., at 4660 Trindle Road, 3rd Floor, Camp Hill, Pa. 17011 via U.S. POSTAL SERVICE CERTIFIED MAIL NUMBER 7004 2510 0001 6424 3924 mail on this -7 Way of September 2006. Fred Brillhart, pro se 152 Lancaster Blvd. Mechanicsburg, Pa. 17055 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION MBNA AMERICA BANK, N.A. 655 PAPER MILL ROAD ) MAIL. STOP 1411 ) WILMINGTON, DE. 19884-1411 ) Plaintiff, ) VS. ) FRED BRILLHART ) 152 LANCASTER BLVD. ) MECHANICSBURG, PA. 17055-3550 ) Defendant. ) Civil Action No.: 06-4289 PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT VERIFICATION The undersigned hereby verifies that the averments contained in the foregoing pro se Defendant Fred Brillhart Preliminary Objections to Plaintiff's Complaint are true and correct to the best of his knowledge, information and belief. The undersigned understands that false statements hereunder are subject to the penalties for unsworn falsification pursuant to 18 PA C.S. §4904 Fred Brillhart, pro se 152 Lancaster Blvd. Mechanicsburg, Pa. 17055 7 d Da IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MBNA AMERICA BANK, N.A., No. 06-4289 CIVIL TERM Plaintiff vs. FRED BRILLHART, CIVIL ACTION - LAW Defendant PLAINTIFF'S RESPONSE TO DEFENDANT'S PRELIMINARY OBJECTIONS AND NOW, this jj_??day of , 2006, comes the Plaintiff, MBNA America Bank, N.A., by and through its attorneys, the law firm of Wolpoff & Abramson, L.L.P., and files the following Response to Preliminary Objections and in support avers as follows: 1. Conclusion of a law, no response required. If a response is required, defendant's statement in paragraph 1 makes no sense and MBNA America Bank, N.A. (hereafter "MBNA") does not know what Defendant is referring to by "special visitation." 2. Conclusion of a law, no response required. If a response is required, defendant's statement in paragraph 1 makes no sense and MBNA does not know what Defendant is referring to by "special visitation." 3. Without admission, no response required as Plaintiff's Complaint speaks for itself. 4. Without admission, no response required as Plaintiff's Complaint LAW OFFICES WOLPOFF & ABRAMSON, L.L.P. ATTORNEYS IN THE PRACTICE OF DEBT COLLECTION 4660 TRINDLE ROAD THIRD FLOOR CAMP HILL, PA 17011 717-303-6700 speaks for itself. 5. Conclusion of law, no response required. If a response is required, Pa.R.C.P. 1028(a)(1) speaks for itself. By way of further response, Plaintiff's Complaint clearly specifies that MBNA America Bank, N.A. is the Plaintiff in this cause of action. Further, Defendant is fully aware that he opened a credit card account with MBNA. 6. Without admission, no response required as Plaintiff's Complaint and its Exhibits speak for themselves. 7. Conclusion of law, no response required. If a response is required, Pa.R.C.P. 1019(h) and 1019(i) speak for themselves. By way of further response, MBNA properly attached the concomitant credit card agreement setting forth the terms and conditions of the account. Defendant agreed to theses terms by activating the account and then by using the account to purchase goods and services. In addition, Defendant made payments upon the account, further evidencing an intent to be bound by the terms of the credit card agreement. 8. Conclusion of law, no response required. If a response is required, LAW OFFICES WOLPOFF & ABRAMSON, L.L.P. ATTORNEYS IN THE PRACTICE OF DEBT COLLECTION 4660 TRINDLE ROAD THIRD FLOOR CAMP HILL, PA 17011 717-303-6700 Plaintiff's Complaint and its Exhibits speak for themselves. By way of further response, Conclusion of law, no response required. If a response is required, Defendant was issued an open-end credit card account by Plaintiff. The account was accompanied by a concomitant credit card agreement. The Agreement explicitly provides that any claim or dispute will be subject to binding arbitration before the National Arbitration Forum (NAF) for disposition on the merits of the dispute through arbitration where each side will have an opportunity to present its case. This agreement also clearly provided that since the agreement involved an instrumentality of interstate commerce, that the Federal Arbitration Act, 9 U.S.C. §§1-16 (FAA) governed the Agreement and that following disposition through the NAF, judgment could be entered in any state court having jurisdiction. Further, the Federal Arbitration Act, which is the relevant statutory law governing the NAF arbitration of the instant matter, does not require that an agreement to arbitrate be signed. See 9 U.S.C. § 2; see also, Bouriez v. Carnegie Mellon, 359 F.3d 292. Any arbitration provision in a written agreement between the parties is valid, enforceable and irrevocable in Pennsylvania, as long as it is not invalid upon grounds relating to the validity, enforceability, or revocation of any contract generally. 9. Conclusion of law, no response required. If a response is required, Pa.R.C.P. 1019(f) speaks for itself. 10. Conclusion of law, no response required. If a response is required, any and all allegations or insinuations of wrongdoing on the part of Plaintiff are hereby denied. By way of further response, MBNA properly attached the concomitant credit card agreement setting forth the terms and conditions of the account. Defendant agreed to theses terms by activating the account and then by using the account to purchase goods and services. In addition, Defendant made payments upon the account, further evidencing an intent to be bound by the terms of the credit card agreement. 11. Without admission, no response required as Plaintiff's Complaint aim (D UCH% WOLRC"-& A.LLL.& W MEM OMpIlQ.HfZ'Ed13C THHMfl)ffUQ M OMWHHUL,M tVA M 7ATfl,a%S4VAU1 and its Exhibits speak for themselves. 12. Without admission, no response required as Plaintiff's Complaint and its Exhibits speak for themselves. 13. Without admission, no response required as Plaintiff's Complaint and its Exhibits speak for themselves. 14. Without admission, no response required as Plaintiff's Complaint and its Exhibits speak for themselves. 15. Without admission, no response required as Plaintiff's Complaint and its Exhibits speak for themselves. 16. Without admission, no response required as Plaintiff's Complaint and its Exhibits speak for themselves. 17. Without admission, no response required as Plaintiff's Complaint and its Exhibits speak for themselves. If a response is required, Plaintiff's Complaint clearly specifies that MBNA America Bank, N.A. is the Plaintiff in this cause of action. Further, Defendant is fully aware that he opened a credit card account with MBNA. 18. Without admission, no response required as Plaintiff's Complaint and its Exhibits speak for themselves. 19. Without admission, no response required as Plaintiffs Complaint and its Exhibits speak for themselves. 20. Without admission, no response required as Plaintiff's Complaint LAW OFFICES WOLROFF &. ARRtAN@ OK L.L.P. ATTORNEYS IN THE PRACTICE OF DEW CGLLECTTON 46M TRIWLE ROAO THM FLOOR CAMP FHUL PA 17011 717.309.670 and its Exhibits speak for themselves. 21. Conclusion of law, no response required. If a response is required, Plaintiff's Complaint and its Exhibits speak for themselves. By way of further response, Conclusion of law, no response required. If a response is required, Defendant was issued an open-end credit card account by Plaintiff. The account was accompanied by a concomitant credit card agreement. The Agreement explicitly provides that any claim or dispute will be subject to binding arbitration before the National Arbitration Forum (NAF) for disposition on the merits of the dispute through arbitration where each side will have an opportunity to present its case. 22. Conclusion of law, no response required. If a response is required, Pa.R.C.P. 1002 speaks for itself. 23. Conclusion of law, no response required. To the extent that LAW OFFICES WOLPOFF & ABRAMSON, L.L.P. ATTORNEYS IN THE PRACTICE OFOERT COLLECTION 4660 TRINDLE ROAD THIRD FLOOR CAMP HILL, PA 17011 717-303.6700 Plaintiff is required to answer, Plaintiff specifically denies the allegations contained in this paragraph and demands strict proof thereof. By way of further response, any and all allegations or insinuations by the Defendant of any wrongdoing on the part of the Plaintiff are hereby specifically denied and strict proof is demanded at Trial. By way of further response, Pa.R.C.P. 1024(c) states that, "The verification shall be made by one or more of the parties filing the pleading unless all the parties ... (2) are outside of the jurisdiction of the Court and the verification of none of them can be obtained within the time allowed for the filing of the pleading." Further, in that regard, Plaintiff's Verification states that the signator is the attorney for the Plaintiff, who is located outside of this jurisdiction and in order to file the within document in an expedient and timely manner, he/she is authorized to take this verification on behalf of said Plaintiff in the within action and verifies that the statements made in the foregoing Complaint are true and correct to the best of his/her knowledge, information, and belief, based upon information provided by the Plaintiff. For purposes of Rule 1024, verification of a pleading may be made by any person having sufficient knowledge or information and belief, and that phrase encompasses attorneys. Monroe Contract Cora., 405 A.2d 954, 958 (Pa. Super. 1979). Further, an attorney has the power to verify a pleading in suitable circumstances, where the conditions enumerated in Rule 1024 are met. Id. Plaintiff s attorneys properly signed and submitted a Verification along with Plaintiffs Complaint. Plaintiffs counsel very clearly specifies in the verification that MBNA is a banking institution located outside of the Commonwealth of Pennsylvania As a result, MBNA could not sign the verification in a timely manner in order that the Complaint was filed within a reasonable time period form the date the Notice of Intent to Sue was sent to Defendant. 24. Conclusion of law, no response required. To the extent that LAW OFFICES WOLFOFF & ABRAMSON, L.L.P. ATTORNEYS IN THE PRACTICE OF DEBT COLLECTION 4660 TRINDLE ROAD THIRD FLOOR Plaintiff is required to answer, Plaintiff specifically denies the allegations contained in this paragraph and demands strict proof thereof. By way of further response, any and all allegations or insinuations by the Defendant of any wrongdoing on the part of the Plaintiff are hereby specifically denied and strict proof is demanded at Trial. By way of further response, Pa.R.C.P. 1024(c) states that, "The verification shall be made by one or more of the parties filing the pleading unless all the parties ... (2) are outside of the jurisdiction of the Court and the verification of none of them can be obtained within the time allowed for the filing of the pleading." Further, in that regard, Plaintiffs Verification states CAMP HILL, PA 17011 717-3036700 that the signator is the attorney for the Plaintiff, who is located outside of this jurisdiction and in order to file the within document in an expedient and timely manner, he/she is authorized to take this verification on behalf of said Plaintiff in the within action and verifies that the statements made in the foregoing Complaint are true and correct to the best of his/her knowledge, information, and belief, based upon information provided by the Plaintiff. For purposes of Rule 1024, verification of a pleading may be made by any person having sufficient knowledge or information and belief, and that phrase encompasses attorneys. Monroe Contract Corp., 405 A.2d 954, 958 (Pa. Super. 1979). Further, an attorney has the power to verify a pleading in suitable circumstances, where the conditions enumerated in Rule 1024 are met. Id. Plaintiff's attorneys properly signed and submitted a Verification along with Plaintiff's Complaint. Plaintiff's counsel very clearly specifies in the verification that MBNA is a banking institution located outside of the Commonwealth of Pennsylvania As a result, MBNA could not sign the verification in a timely manner in order that the Complaint was filed within a reasonable time period form the date the Notice of Intent to Sue was sent to Defendant. LAW OFFICES WOLPOFF & ABRAMSON, L.L.P. ATTORNEYS IN THE PRACTICE OF DEBT COLLECTION 4660 TRINDLE ROAD THIRD FLOOR CAMP HILL, PA 17011 717-303-6700 WHEREFORE, Plaintiff, MBNA America Bank, N.A., respectfully requests that this Honorable Court dismiss Defendant's Preliminary Objections with prejudice and enter judgment in favor of Plaintiff and against Defendant, along with the allowable costs of this action, and such further relief as the Court deems just and appropriate. Respectfully Submitted, (?VLO,6 Jh- Andrew C. Spears, Esquire ID No. 87737 Wolpoff & Abramson, LLP Attorneys in the Practice of Debt Collection 4660 Trindle Road, Suite 300 Camp Hill, PA 17011 (717) 303-6752 Counsel for Plaintiff LAW OFFICES LPOFF & ABRAMSON, L.L.P. rORNEYS IN THE PRACTICE OF DEBT COLLECTION 46W TRINDLE ROAD THIRD FLOOR CAMP HILL, PA 17011 717-303-6700 VERIFICATION The undersigned hereby states that he/she is the attorney for the Plaintiff, MBNA America Bank, N.A., who is located outside of this jurisdiction and in order to file the within document in an expedient and timely manner, he/she is authorized to take this verification on behalf of said Plaintiff in the within action and verifies that the statements made in the foregoing Response to Preliminary Objections are true and correct to the best of his/her knowledge, information, and belief, based upon information provided by the Plaintiff. The undersigned understands that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Andrew C. Spears, Eshuire ID No. 87737 Wolpoff & Abramson, LLP Attorneys in the Practice of Debt Collection 4660 Trindle Road, Suite 300 Camp Hill, PA 17011 (717) 303-6752 Counsel for Plaintiff LAW OFFICES WOLPOFF & ABRAMSON, L.L.P. ATTORNEYS IN THE PRACTICE OF DEBT COLLECTION 4660 TRINDLE ROAD THIRD FLOOR CAMP HILL, PA 17011 717-303-6700 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MBNA AMERICA BANK, N.A., No. 06-4289 CIVIL TERM Plaintiff vs. FRED BRILLHART, CIVIL ACTION - LAW Defendant CERTIFICATE OF SERVICE The undersigned does hereby certify that a copy of the foregoing Response to Preliminary Objections has been served upon the pro se Defendants, . 1#4 by First Class Mail, Postage Pre-Paid, a copy thereof on this hday of September, 2006, to: Fred Brillhart 152 Lancaster Blvd. Mechanicsburg, PA 17055 Andrew C. Spears, Es ire ID No. 87737 Wolpoff & Abramson, LLP Attorneys in the Practice of Debt Collection 4660 Trindle Road, Suite 300 Camp Hill, PA 17011 (717) 303-6752 Counsel for Plaintiff LAW OFFICES XPOFF & ABRAMSON, L.L.P. !TORNEYSIN THE PRACTICE OF DEBT COLLECTION 4660 TRINDLE ROAD THIRD FLOOR CAMP HILL, PA 17011 717-303-6700 _, ` r'?, -:z .?, .+ } _. SHERIFF'S RETURN - REGULAR CASE NO: 2006-04289 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MBNA AMERICA BANK N A VS BRILLHART FRED 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 BRILLHART FRED the DEFENDANT , at 1157:00 HOURS, on the 31st day of July , 2006 at 152 LANCASTER BLVD MECHANICSBURG, PA 17055 FRED BRILLHART by handing to 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 18.0 Service 8.880 Postage .39 Surcharge 10.00 R. Thomas Kline .00 37.19/ 08/02/2006 9?d h1U G WOLPOFF & ABRAMSON Sworn and Subscibed to By: before me this day Deputy eriff of A. D. V.. , , % ORIGINAL PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. - - -------- - - ------ - -------- CAPTION OF CASE (entire caption must be stated in full) MBNA America Bank, N.A. (Plaintiff) VS. Fred Brillhart (Defendant) No. 4289 P 2006 Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary Objections 2. Identify counsel who will argue cases: (a) for plaintiff: David R. Galloway, Esquire Wolpoff &.Abramson, LLP u;j0. 300 (Name and Address) 4660 Trindle Road Camp Hill, PA 17011 (b) for defendant: Fred Brillhart Pro-Se (Nam and Address) 152 Lancaster Blvd. Mechanicsburg, PA 17055 3. I will notify all parties in writing within two days that this case has been listed for argument. Certificate of Service attached 4. Argument Court Date: Signature David R. Gall ay Print your name Plaintiff - MBNA Date: March 30, 2007 Attorney for f IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MBNA AMERICA BANK, N.A.. NO. 4289 - 2006 TERM Plaintiff CIVIL ACTION - LAW V. FRED BRILLHART, Defendant CERTIFICATE OF SERVICE I, David R. Galloway, Esquire, do hereby certify that I served a copy of Plaintiff s Praecipe to List for Argument, upon the Pro-Se Defendant, by First Class Mail, Postage Pre- .4 Paid, a copy thereof on this 3D - day of March, 2007, to: Fred Brillhart 152 Lancaster Blvd. Mechanicsburg, PA 17055 David R. Galloway ID O. 87326 WOLPOFF & AB SON, LLP Attorneys in the Practi e of Debt Collection 4660 Trindle Rd., Suite 300 Camp Hill, PA 17011 (717) 303-6751 ^C` CO MBNA AMERICA BANK, N.A., IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. FRED BRILLHART, DEFENDANT NO. 06-4289 CIVIL IN RE: PRELIMINARY OBJECTIONS BEFORE OLER, J., GUIDO, J. AND EBERT, J. ORDER OF COURT AND NOW, this 18th day of May, 2007, upon consideration of the Defendant's Preliminary Objections to Plaintiff's Complaint, the Plaintiff's Response thereto and after argument, IT IS HEREBY ORDERED AND DIRECTED that the Court finds that the verification to the Complaint is defective in that the attorney for the Plaintiff should not have signed the verification in that there was time within the statute of limitations to allow a party other than the Plaintiff's attorney to sign the verification and that mere expediency does not satisfy the requirement of Pa.R.C.P. 1024(c)(2). However, the Defendant's request to have the Plaintiff's complaint dismissed on this ground is DENIED and the Plaintiff shall be given 30 days from the date of this order to amend the defective verification. Monroe Contract Corporation v. Harrison Square, Inc. 405 A.2d 954 (Pa. Super. 1979). IT IS FURTHER ORDERED AND DIRECTED that all of the Defendant's other preliminary objections are DISMISSED and Defendant's request for recoupment of fees and costs is DENIED. By the Court, M. L. Ebert, Jr., y 14 L David R. Galloway, Esquire Attorney for Plaintiff Fred Brillhart, Pro Se Defendant bas K r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MBNA AMERICA BANK, N.A. Plaintiff VS. FRED BRILLHART Defendant NO. 06-4289-CIVIL TERM CIVIL ACTION - LAW PRAECIPE TO SUBSTITUTE VERIFICATION To the Prothonotary: Please substitute the attached Verification signed by Robert Winzinger for the Attorney Verification attached to the Complaint. Respectfully Submitted, Date: s o By: David R. Gallowa #87326 WOLPOFF & AB MSON, LLP 4660 Trindle Rd., Suite 300 Camp Hill, PA 17011 Attorney for Plaintiff W&A File No. 135831858 VERIFICATION acknowledge that I have the authority to execute this Verification on behalf of MBNA America Bank, N.A., and certify that the foregoing Complaint is based upon information which has been gathered by my counsel in the preparation of this document. The language of this document is that of counsel and not my own. I have read the document and to the extent that this Complaint is based upon information which I have given to counsel, it is true and correct and to the best of my knowledge, information and belief. To the extent that the content of this Complaint 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. § 4904 relating to unsworn falsification to authorities, which provides that if I knowingly make false averments, I may be subject to criminal penalties. MBNA America Bank, N.A. Ae-?El (J' I -- (Signature) A y vo (Title) Dated: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MBNA AMERICA BANK, N.A. Plaintiff NO. 06-4289-CIVIL TERM VS. FRED BRILLHART Defendant CIVIL ACTION - LAW CERTIFICATE OF SERVICE The undersigned does hereby certify that a true and correct copy of Praecipe To Substitute Verification was served upon the individual listed below by Regular Mail, Postage Pre-Paid on this 'Vqay of May, 2007. Mr. Fred Brillhart 152 Lancaster Boulevard Mechanicsburg, PA 17055 David R. Gallow y #87326 WOLPOFF & A RAMSON, LLP 4660 Trindle Rd., Suite 300 Camp Hill, PA 17011 (717) 303-6751 u IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY OF PENNSYLVANIA MBNA AMERICA BANK, N.A. ) Case # 06-4289 Plaintiff ) ) V ) ANSWER TO COMPLAINT, AND FRED BRILLHART ) NEW MATTER Defendant ) AND NOW, comes the Defendants Fred Brillhart (hereinafter referred to as Defendant Brillhart) and files this Answer, and New Matter, to the Plaintiffs Civil Complaint. 1 The Defendant is without sufficient knowledge or information, after reasonable investigation, to form a belief as to the truth of the allegations contained in Paragraph one (1) of the Plaintiffs Complaint; those allegations are therefore denied, and strict proof thereof is demanded at the time of trial. 2. Admitted 3. Exhibit A is unreadable and contains no signatures. Therefore the allegation contained in Paragraph three (3) of Plaintiffs Complaint constitute conclusions of law to which no response is required. In the event a response may be required, those allegations are denied, and strict proof thereof is demanded at the time of trial. 4. The allegation contained in Paragraph four (4) of Plaintiffs Complaint constitute conclusions of law to which no response is required. In the event a response may be required, those allegations are denied, and strict proof thereof is demanded at the time of trial. 5. The Defendant is without sufficient knowledge or information, after reasonable investigation, to form a belief as to the truth of the allegations contained in Paragraph five (5) of the Plaintiffs Complaint; those allegations are therefore denied, and strict proof thereof is demanded at the time of trial. 6. The allegation contained in Paragraph six (6) of Plaintiffs Complaint constitute conclusions of law to which no response is required. In the event a response may be required, those allegations are denied, and strict proof thereof is demanded at the time of trial. 7. The Defendant is without sufficient knowledge or information and after reasonable investigation Defendant lacks any verifiable accounting records to support Plaintiff's allegations. If an answer is indeed required then Defendant hereby denies the allegations in paragraph seven of Plaintiffs Complaint and hereby demands Plaintiff produce the certified accounting ledgers to support his accounting in Paragraph seven at trial. 8. The Defendant hereby states that the alleged debt has been disputed several times directly with the alleged creditor. Defendant also by disputing the entire validity of the entire alleged debt has placed the alleged debt into the Doctrine of Contested Liability and this alleged debt is un- liquid thus under the Rules of Evidence destroying the alleged Plaintiff's only form of evidence. Defendant hereby demands strict proof at the time of trial. 9. The Defendant is without sufficient knowledge or information, after reasonable investigation, to form a belief as to the truth of the allegations contained in Paragraph nine (9) of the Plaintiffs Complaint; those allegations are therefore denied, and strict proof thereof is demanded at the time of trial. 10. The Defendant is without sufficient knowledge or information and after reasonable investigation Defendant lacks any verifiable accounting records to support Plaintiff's allegations. If an answer is indeed required then Defendant hereby denies the allegations in paragraph ten of Plaintiff's Complaint and hereby demands Plaintiff produce the certified accounting ledgers to support his accounting in Paragraph ten at trial. 11. The Defendant is without sufficient knowledge or information, after reasonable investigation, to form a belief as to the truth of the allegations contained in Paragraph eleven (11) of the Plaintiffs Complaint; those allegations are therefore denied, and strict proof thereof is demanded at the time of trial. 12. The Defendant is without sufficient knowledge or information, after reasonable investigation, to form a belief as to the truth of the allegations contained in Paragraph twelve (12) of the Plaintiffs Complaint; those allegations are therefore denied, and strict proof thereof is demanded at the time of trial. 13. The Defendant is without sufficient knowledge or information, after reasonable investigation, to form a belief as to the truth of the allegations contained in Paragraph thirteen (13) of the Plaintiffs Complaint; those allegations are therefore denied, and strict proof thereof is demanded at the time of trial. 14. The allegation contained in Paragraph fourteen (14) of Plaintiffs Complaint constitute conclusions of law to which no response is required. In the event a response may be required, those allegations are denied, and strict proof thereof is demanded at the time of trial. 15. The Defendant is without sufficient knowledge or information, after reasonable investigation, to form a belief as to the truth of the allegations contained in Paragraph fifteen (15) of the Plaintiffs Complaint; those allegations are therefore denied, and strict proof thereof is demanded at the time of trial. 16. The Defendant is without sufficient knowledge or information, after reasonable investigation, to form a belief as to the truth of the allegations contained in Paragraph sixteen (16) of the Plaintiffs Complaint; those allegations are therefore denied, and strict proof thereof is demanded at the time of trial. 17. The allegation contained in Paragraph seventeen (17) of Plaintiffs Complaint constitute conclusions of law to which no response is required. In the event a response may be required, those allegations are denied, and strict proof thereof is demanded at the time of trial. 18. The allegation contained in Paragraph eighteen (18) of Plaintiffs Complaint constitute conclusions of law to which no response is required. In the event a response may be required, those allegations are denied, and strict proof thereof is demanded at the time of trial. WHEREFORE, the Defendant Fred Brillhart respectfully requests that this Honorable Court enter an Order denying the Plaintiffs request for Judgement NEW MATTER 19. The Defendant, incorporates by reference Paragraphs one (1) through nine (18) of his Answer as if each were set forth fully hereunder. 20. The Plaintiff's Complaint fails to establish Lack of jurisdiction over the subject matter and should be dismissed 21. The Plaintiff lacks standing to sue as it appears that it has sold, assigned or otherwise relinquished ownership of the instrument upon which the action is based and/or has charged off the alleged debt and/or sold or assigned to, or entered into a novation of the alleged account with, a debt collector. . 22. The claims of the Plaintiff are barred by the Doctrine of Accord and Satisfaction The Defendant Fred Brillhart had previously disputed the amounts claimed to be due and owing by the Plaintiff. 23 Each alleged contract is null and void and/or void ab initio as the Plaintiff or its assignor is not legally competent to enter into the contract, which is the basis of the action. 24. The Alleged implied contract is invalid and/or unenforceable as there are no executed signed agreement(s) specifically outlining all the terms and conditions. 25. The alleged implied contract is invalid and/or unenforceable as there was no meeting of the minds. 26. Plaintiff's Complaint is precluded based on the theories of payment and set-off. 27. Plaintiff is estopped from pursuing the action because Plaintiff failed to respond, verify and validate the disputed account. 28. Plaintiff Complaint based upon a disputed implied contract is invalid and unenforceable for there are no attached exhibits and the Complain is inadmissible for there are no supporting documents to prove the very existence of any contract. 29. Plaintiff's Complaint fails to provide a signed, executed agreement showing the amount claimed by Plaintiff in the Complaint was agreed upon by the defendant to legally constitute a valid statement of account. 30. The Plaintiff has acted maliciously towards the Defendant. 31. The Plaintiff has, through its malicious, reckless and negligent conduct, caused emotional distress on the Defendant. WHEREFORE, the Defendant prays that the Plaintiff's Complaint be dismissed in its entirety with prejudice and prays for costs lost time preparing this document and for such other relief as the Court may deem just and proper. n Fred Brillhart date I verify that the statements made in this Answer and New Matter are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. CSA $ 4904 relating to unsworn falsification to authorities Da e Fred Brillhart Defendant CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Defendant's Answer, and Affirmative Defense, to Plaintiffs Complaint was mailed by U.S. Certified Mail on the 291" day of June 2007. This process was served upon; Wolpoff & Abramson, LLP 4660 Trindle Rd. 3rd floor Camp Hill Pa. 17011 Fred Brillhart C ° `1 - r rnr_ ?ic?s IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY OF PENNSYLVANIA MBNA AMERICA BANK, N.A. ) Case # 06-4289 Plaintiff ) V ) FIRST AMENDED ANSWER TO COMPLAINT, AND FRED BRILLHART ) NEW MATTER Defendant ) NOTICE TO PLEAD To: MBNA AMERICA BANK, N. A. in care of WOLPOFF & ABRAMSON, L. L. P. Andrew C. Spears council of record. You are hereby notified to file a written response to the enclosed First Amended Answers and New Matter within twenty (20) days from service hereof or a judgment may be entered against you. Fred Brillhart IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY OF PENNSYLVANIA MBNA AMERICA BANK, N.A. ) Case # 06-4289 Plaintiff ) V ) FIRST AMENDED ANSWER TO COMPLAINT, AND FRED BRILLHART ) NEW MATTER Defendant ) AND NOW, comes the Defendants Fred Brillhart (hereinafter referred to as Defendant Brillhart) and files this First Amended Answer, and New Matter, to the Plaintiffs Civil Complaint. 1 The Defendant is without sufficient knowledge or information, after reasonable investigation, to form a belief as to the truth of the allegations contained in Paragraph one (1) of the Plaintiffs Complaint; those allegations are therefore denied, and strict proof thereof is demanded at the time of trial. 2. Admitted 3. Exhibit A is unreadable and contains no signatures. Therefore the allegation contained in Paragraph three (3) of Plaintiffs Complaint constitute conclusions of law to which no response is required. In the event a response may be required, those allegations are denied, and strict proof thereof is demanded at the time of trial. 4. The allegation contained in Paragraph four (4) of Plaintiffs Complaint constitute conclusions of law to which no response is required. In the event a response may be required, those allegations are denied, and strict proof thereof is demanded at the time of trial. 5. The Defendant is without sufficient knowledge or information, after reasonable investigation, to form a belief as to the truth of the allegations contained in Paragraph five (5) of the Plaintiffs Complaint; those allegations are therefore denied, and strict proof thereof is demanded at the time of trial. 6. The allegation contained in Paragraph six (6) of Plaintiffs Complaint constitute conclusions of law to which no response is required. In the event a response may be required, those allegations are denied, and strict proof thereof is demanded at the time of trial. 7. The Defendant is without sufficient knowledge or information and after reasonable investigation Defendant lacks any verifiable accounting records to support Plaintiff's allegations. If and answer Is indeed required then Defendant hereby denies the allegations in paragraph seven of Plaintiff's Complaint and hereby demands Plaintiff produce the certified accounting ledgers to support his Accounting in Paragraph seven at trial. 8. The Defendant hereby states that the alleged debt has been disputed several times directly With the alleged creditor. Defendant also by disputing the entire validity of the entire alleged debt has placed the alleged debt into the Doctrine of Contested Liability and this alleged debt is un- Liquid thus under the Rules of Evidence destroying the alleged Plaintiffs only form of evidence. Defendant hereby demands strict proof at the time of trial. 9. The Defendant is without sufficient knowledge or information, after reasonable investigation, to Form a belief as to the truth of the allegations contained in Paragraph nine (9) of the Plaintiffs Complaint; those allegations are therefore denied, and strict proof thereof is demanded at the time Of trial. 10. The Defendant is without sufficient knowledge or information and after reasonable Investigation Defendant lacks any verifiable accounting records to support Plaintiff's Allegations. If an answer is indeed required then Defendant hereby denies the allegations in Paragraph ten of Plaintiff's Complaint and hereby demands Plaintiff produce the certified Accounting ledgers to support his accounting in Paragraph ten at trial. 11. The Defendant is without sufficient knowledge or information, after reasonable investigation, To form a belief as to the truth of the allegations contained in Paragraph eleven (11) of the Plaintiffs Complaint; those allegations are therefore denied, and strict proof thereof is demanded at The time of trial. 12. The Defendant is without sufficient knowledge or information, after reasonable investigation, To form a belief as to the truth of the allegations contained in Paragraph twelve (12) of the Plaintiffs Complaint; those allegations are therefore denied, and strict proof thereof is demanded at The time of trial. 13. The Defendant is without sufficient knowledge or information, after reasonable investigation, To form a belief as to the truth of the allegations contained in Paragraph thirteen (13) of the Plaintiffs Complaint; those allegations are therefore denied, and strict proof thereof is demanded at The time of trial. 14. The allegation contained in Paragraph fourteen (14) of Plaintiffs Complaint constitute conclusions of law to which no response is required. In the event a response may be required, those allegations are denied, and strict proof thereof is demanded at the time of trial. 15. The Defendant is without sufficient knowledge or information, after reasonable investigation, To form a belief as to the truth of the allegations contained in Paragraph fifteen (15) of the Plaintiffs Complaint; those allegations are therefore denied, and strict proof thereof is demanded at the time of trial. 16. The Defendant is without sufficient knowledge or information, after reasonable investigation, To form a belief as to the truth of the allegations contained in Paragraph sixteen (16) of the Plaintiffs Complaint; those allegations are therefore denied, and strict proof thereof is demanded at The time of trial. 17. The allegation contained in Paragraph seventeen (17) of Plaintiff s Complaint constitute conclusions of law to which no response is required. In the event a response may be required, those allegations are denied, and strict proof thereof is demanded at the time of trial. 18. The allegation contained in Paragraph eighteen (18) of Plaintiffs Complaint constitute conclusions of law to which no response is required. In the event a response may be required, those allegations are denied, and strict proof thereof is demanded at the time of trial. WHEREFORE, the Defendant Fred Brillhart respectfully requests that this Honorable Court enter an Order denying the Plaintiffs request for Judgment NEW MATTER 19. The Defendant, incorporates by reference Paragraphs one (1) through nine (18) of his Answer as if each were set forth fully hereunder. 20. The Plaintiffs Complaint fails to establish Lack of jurisdiction over the subject matter and should be dismissed 21. The Plaintiff lacks standing to sue as it appears that it has sold, assigned or otherwise relinquished ownership of the instrument upon which the action is based and/or has charged off the alleged debt and/or sold or assigned to, or entered into a novation of the alleged account with, a debt collector. . 22. The claims of the Plaintiff are barred by the Doctrine of Accord and Satisfaction The Defendant Fred Brillhart had previously disputed the amounts claimed to be due and owing by the Plaintiff. 23 Each alleged contract is null and void and/or void ab initio as the Plaintiff or its assignor is not Legally competent to enter into the contract, which is the basis of the action. 24. The Alleged implied contract is invalid and/or unenforceable as there are no executed Signed agreement(s) specifically outlining all the terms and conditions. 25. The alleged implied contract is invalid and/or unenforceable as there was no meeting of The minds. 26. Plaintiff's Complaint is precluded based on the theories of payment and set-off. 27. Plaintiff is estopped from pursuing the action because Plaintiff failed to respond, verify and Validate the disputed account. 28. Plaintiff Complaint based upon a disputed implied contract is invalid and unenforceable for There are no attached exhibits and the Complain is inadmissible for there is no supporting Documents to prove the very existence of any contract. 29. Plaintiff's Complaint fails to provide a signed, executed agreement showing the amount Claimed by Plaintiff in the Complaint was agreed upon by the defendant to legally constitute a Valid statement of account. 30. The Plaintiff has acted maliciously towards the Defendant. 31. The Plaintiff has, through its malicious, reckless and negligent conduct, caused emotional distress on the Defendant. WHEREFORE, the Defendant prays that the Plaintiffs Complaint be dismissed in Its entirety with prejudice and prays for costs lost time preparing this document and for such other Relief as the Court may deem just and proper. ?ZdW Fred Brillhart CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Defendant's First Amended Answer, and New Matter to Plaintiffs Complaint was mailed by U.S. Certified Mail on the day of July 2007. This process was served pon; Wolpoff & Abramson, LLP 4660 Trindle Rd. 3rd floor Camp Hill Pa.17011? ? o o?' Fred Willhart VERIFICATION I verify that the statements made in this Answer and New Matter are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. CSA $ 4904 relating to unworn falsification to authorities. 1: 1-e 7 Dat Fred Brill efendant Q r -- `??"- -z-? ?;? t 7 ? ?• 4 __ "'? :.` N ,_;i ? _r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MBNA AMERICA BANK, N.A. Plaintiff V. FRED BRILLHART Defendant No. 06-4289 CIVIL ACTION - LAW PLAINTIFFS REPLY TO DEFENDANT'S NEW MATTER AND NOW, comes Plaintiff MBNA AMERICA BANK, N.A., by and through its attorneys, WOLPOFF & ABRAMSON, LLP, files its Reply To Defendant's New Matter as stated herein: 19. Paragraphs 1-18 contained in Plaintiff's Complaint are incorporated herein as if set forth in full. 20 -29. The allegations contained in these paragraphs are conclusions of law to which no response is necessary. 30. Denied. To the contrary, Plaintiff has not acted maliciously towards Defendant. 31. Denied pursuant to Pa.R.C.P. 1029(e). LAW OFFICES WOLPOFF & ABRAMSON, L.L.P. ATTORNEYS IN THE PRACTICE OF DEBT COLLECTION 4660 TRINDLE ROAD THIRD FLOOR CAMP HILL, PA 17011 717-303-6700 WHEREFORE, Plaintiff respectfully requests this Honorable Court dismiss Defendant's New Matter with prejudice and enter a Judgment in favor of Plaintiff plus costs of suit. Respectfully Submitted, WOLPOFF & ABRAMSON, LLP By T i yn M. Chi ie Attorney I.D. 87852 David R. Galloway Attorney I.D. 87326 4660 Trindle Rd., Ste. 300 Camp Hill, PA 17011 W&A File No. 158091657 Counsel for Plaintiff LAW OFFICES WOLPOFF & ABRAMSON, L.L.P. ATTORNEYS IN THE PRACTICE OF DEBT COLLECTION 4660 TRINDLE ROAD THIRD FLOOR CAMP HILL, PA 17011 717-303-6700 VERIFICATION The undersigned hereby states that he is the attorney for the Plaintiff MBNA America Bank, N.A., who is located outside of this jurisdiction and in order to file the within document in an expedient and timely manner, he is authorized to take this verification on behalf of said Plaintiff in the within action and verifies that the statements made in the foregoing Preliminary Objections are true and correct to the best of his knowledge, information, and belief, based upon information provided by Plaintiff. The undersigned understands that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities. WOLPOFF & ABRAMSON, LLP I-T6nilyn M. Uippie Attorney I.D. 87852 David R. Galloway Attorney ID No. 87326 4660 Trindle Road, Suite 300 Camp Hill, PA 17011 (717) 303-6751 Counsel for Plaintiff LAW OFFICES WOLPOFF & ABRAMSON, L.L.P. ATTORNEYS IN THE PRACTICE OF DEBT COLLECTION 4660 TRINDLE ROAD THIRD FLOOR CAMP HILL, PA 17011 717-30&6700 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FKA MBNA AMERICA BANK, N.A., No. 06-4289 Plaintiff vs. FRED BRILLHART, CIVIL ACTION - LAW Defendant CERTIFICATE OF SERVICE The undersigned does hereby certify that I served a copy of the foregoing Preliminary Objections on the pro se Defendant, by First Class Mail, Postage Pre- Paid, a copy thereof on this V day of u , 2007, to: Fred Brillhart 152 Lancaster Blvd. Mechanicsburg, PA 17055 WOLPOFF & ABRAMSON, LLP nilyn M. ippie Attorney I.D. 87852 David R. Galloway Attorney ID No. 87326 4660 Trindle Road, Suite 300 Camp Hill, PA 17011 (717) 303-6751 Counsel for Plaintiff LAW OFFICES WOLPOFF & ABRAMSON, L.L.P. ATTORNEYS IN THE PRACTICE OF DEBT COLLECTION 4660 TRINDLE ROAD THIRD FLOOR CAMP HILL, PA 17011 717-303-6700 C ° -V Fn ? c tv A .at : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-4289 CIVIL TERM MBNA, AMERICA BANK, N.A. V. FRANK BRILLHART PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: David R. Galloway, Esq. , counsel for the PLANTIFF/defendant in the above action (or actions), represents that: 1. The above-captioned action (or actions) is (are) at issue. 2. The claim of plaintiff in the action is $_7,484.32 The counterclaim of the defendant in the action is $ The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully submitted, David R. Gallowa , Esq. ORDER OF COURT AND NOW, , 200 , in consideration of the foregoing petition, Esq., and Esq., and Esq., are appointed arbitrators in the above captioned action (or actions) as prayed for. By the Court, EDGAR B BAYLEY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MBNA AMERICA BANK, N.A. Plaintiff : No. 06-4289 civil term VS FRED BRILLHART : CIVIL ACTION - LAW Defendant(s) CERTIFICATE OF SERVICE The undersigned does hereby certify that a true and correct copy of the Petition For Appointment of Arbitrators was served upon the individual(s) listed below by Regular Mail, Postage Pre-Paid on this ??dN_ay of November, 2007. FRED BRILLHART 152 LANCASTER BLVD MECHANICSBURG, PA 170553550 Amy F. Doyle #8F.62 / Danie fso 1 Philip C. Warholi #86 / David R. Tonilyn M. Chippi #8 arah E. Ehasz #86469 Robert N. Polas, Jr. #201259 / Ronald S. Canter #94000 WOLPOFF & ABRAMSON, L.L.P. Attorneys in the Practice of Debt Collection 4660 Trindle Road, Suite 300 Camp Hill, PA 17011 Telephone: (717) 303-6700 Counsel for Plaintiff W&A File No. 135831858 l Pz 0 71 f 0 MBNA, AMERICA BANK, N.A. V. FRANK BRILLHART IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-4289 CIVIL TERM PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: David R. Galloway, Esq. , counsel for the PLANTIFF/defendant in the above action (or actions), represents that: 1. The above-captioned action (or actions) is (are) at issue. 2. The claim of plaintiff in the action is $_7,484.32 The counterclaim of the defendant in the action is The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully submitted, David R. Gallowa , Esq. ORDER OF COURT AND NOW, 200 7 , inconsideration of the fforegoi/n . petition, A& 7& Esq., and_?(? Esq., and Esq., are appointed arbitrators in the above captioned action (or actions) as prayed for. y eW?Oot'?? EDGAR B BAYLEY ?tt1 W i.Y! ?i?S c`? v COP to ?L IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MBNA AMERICA BANK, N.A. ) C/O WOLPOFF & ABRAMSON, L.L.P. ) DAVID R. GALLOWAY, ESQUIRE ) 4660 TRINDLE ROAD, 3rd FLOOR ) CAMP HILL, PA 17011 ) PLAINTIFF ) Case No. 06-4289 V. CIVIAL ACTION - LAW FRED BRILLHART 152 LANCASTER BLVD MECHANICSBURG, PA 17055 DEFENDANT PRAECIPE FOR JUDGMENT OF NON PROS TO THE PROTHONOTARY: Enter Judgment against MBNA AMERICA BANK, N.A., for failure to comply with Judge Ebert's "ORDER OF COURT" dated May 18th 2007 (Exhibit D-1). The "ORDER" specifically states and I quote, "It is hereby ordered and directed that the Court finds that the verification to the Complaint is defective in that the attorney should not have signed the verification in that there was time within the statute of limitations to allow a party other than the Plaintiffs attorney to sign the verification and that mere expediency does not satisfy the requirements of PA. R.C.P.1024(c)(2)". Further reading from the "Order" the Judge states, "and the Plaintiff shall be given 30 days from the date of this order to amend the defective verification." This "Order" was signed by Judge M.L. Ebert, Jr. and Judge Ebert, Jr., referenced "Monroe Contract Corporation v. Harrison Square, Inc. 405 A.2d 954 (Pa. Super. 1979). Plaintiff substituted one defective verification with another defective verification on/or about`May 30, 2007. The order from the court at least implied that the Plaintiff's counsel has to file a proper verification (Exhibit D-2) in compliance with the proper established Rules for Verification. On March 1, 2008, Defendant Brillhart served upon Plaintiff a 10-Day Notice (Exhibit D-3) by U.S. Postal Service Certified Mail, Receipt Number 7007-2680-0000-2364-0289 (Exhibit D-4) and received on/or about March 3, 2008 (Tracking and Confirmation, March 3, 2008 at 1:01 P.M. Exhibit D-5) Wolpoff & Aramson, LLP acknowledging receipt of Certified Mail (Exhibit D-6). One can only conclude that the "Order" from the Court to mean literally for Plaintiff to properly comply with all the Rules of Verification. For anyone to challenge that the Judge did not mean that a proper verification is required to be in compliance with Pa. Rules of Civil Procedure would be preposterous. The Judge's Order specifically stated that Plaintiffs Attorney should not have signed the verification. This order should be interpreted to disallow any participation in the preparing, writing, and/or any involvement in the creation of the verification by Plaintiffs Counsel. a. the Affiant states, "I have the authority to execute this Verification on behalf of MBNA America Bank, N.A., and certify that the forgoing Complaint is based upon information which has been gathered by my counsel in the preparation of this document." b. the Affiant states, "The language of this document is that of Counsel and not my own." C. the Affiant states, "I have read the document and to the extent that this Complaint is based upon information which I have given to Counsel, it is true and correct and to the best of my knowledge, information and belief." d. the Affiants states, "To the extent that the content of this Complaint is that of counsel, I have relied upon counsel in making this Verification." The contents of this faulty "Verification" is a degradation upon this Court, for the statements are contradictive, incongruent and a willful non-compliance with a direct order from this Court. It is quite clear that if the Plaintiff had any questions concerning the intentions of the "Order" the Plaintiff should have examined the referenced case specifically mentioned by Judge Ebert. At paragraph 31 of the referenced case reads, "A judge of any court of record shall not, in any matter, case, hearing, or proceeding before him, receive or consider any petition, or paper in the nature of a petition, alleging any matter of fact, unless the petition or paper is duly verified as to such allegations." The deficiencies of this improper Verification are as follows: 1. Plaintiffs Counsel actually wrote the verification; 2. Verification did not state the source or indicate what information or what business records were in the possession of the Affiant; 3. Affiant admits that verification was actually prepared and written by Plaintiffs counsel "based upon information gathered by my Counsel." 4. The affiant admits, "The language of this document is that of counsel and not my own;" 5. Affiant contradicts earlier statements under Oath (criminal penalties of perjury), the Affiant now states, "I have read the document and to the extent that this Complaint is based upon information which I have given to counsel, it is true and correct and to the best of my knowledge, information and belief," 6. it did not state that the affiant had first hand knowledge; 7. it did not confer by what authority the Affiant signed this verification on behalf of MBNA America Bank, N.A.; 8. it does not state with specificity that the Affiant had first hand knowledge; 9. Affiant fails to identify the Defendant's alleged account number, fails to specifically identify Defendant as the subject to the improper verification and failed to state a fixed amount that allegedly is owned by Defendant in the filing on May 30, 2007. 10. Affiant does not established or references any admissible evidence to establish the cause of action; 11. Affiant's conclusory verification by a person who has no personal knowledge of the facts, cannot establish a prima facie case; 12. Affiant's mere conclusory assertions of facts, without any evidentially basis, are insufficient to prove any set of facts; 13. Affiant has failed to attach any documents or even referenced any documents that permitted him to signed this verification; 14. Affiant's verification does not even state any mention about a contract and the only evidence referenced in the Complaint does not established an adequate evidentiary basis an alleged unsigned, generic, undated and could relate to anyone; 15. Affiant has not met the evidentiary Rules of Evidence. Especially authentication under Pa. R.E. 901, 902(11), 803, 803(6), 601, 602; 16. Affiant has not established under Pa. R.E. 401 and relevant evidence (Evidence is relevant if it has probative value); 17. Affiant has never substantiated the alleged documents filed in this case and without any identification or authentication is inadequate; 18. Affiant has not substantiated any documentations through Pa. R.E. 902(11) and 902(12) by authentication of business records to met the necessary evidentiary requirements; 19. Affiant or other corporate officer did not swear to the authenticity and genuineness of the Plaintiffs documents; 20. Affiant has never properly identified himself as to what function he performs for MBNA; 21. Affiant never establishes any indebtedness to Brillhart or vise-versa; 22. Affiant stated that affiant has relied upon the information in Plaintiff's attorneys possession; 23. Affiant has not proven that these out of state documents can be established as admissible evidence and should be excluded under the hearsay rule; 24. Affiant has not even stated that he is familiar or ever was in possession of the business records and avoids acknowledges any first hand knowledge thus denying admissibility of Exhibit A and B and any all other documents in this case; 25. In order to establish a business records foundation, Affiant must be familiar with the complete record keeping practices to claim business records; 26. Affiant has not referenced any documents in his possession of the necessary business so therefore this verification is insufficient to survive a challenge of "Offer of Proof"; 27. Affiant stated that the information contained within the new verification was actually prepared by Mr. Galloway but only signed by the Affiant; 28. Affiant's contradicted himself another paragraph of the new verification when the Affiant claims that he supplied the records to Mr. Galloway; 29. Affiant should have known that Defendant has placed this alleged debt under the "Doctrine of Contested Liability" so therefore this alleged debt becomes un-liquid; 30. Affiant and Plaintiffs Counsel has never acted under good faith and fair dealing and this court must first determine if sanctions are in order; 31. Affiant has not stated that he knows for a fact that Defendant was ever mailed statement of accounts, the alleged contract and its amendments, and never claimed first hand knowledge over any of these departments; 32. Affiant has not dated the verification submitted on May 30th 2008 and 33. Affiant did not get the verification that was submitted on May 30th, 2008 notarized. Pursuit to Pa. R.C.P. 23 7.11, I certify that written notice of the intention to file this praecipe was mailed or delivered to the attorney for the party against whom judgment is to be entered, after the default occurred and at least (10) days prior to the date of the filing of this praecipe and copy of the notice is attached. OWED= Fred Bril h efendant r, D This 13 day of M044 , 2008, Judgment of Non Pros is entered in favor of Fred Brillhart and against MBNA AMERICA BANK, N.A., Plaintiff, by default for failure to file a proper Verification pursuit to the Order of the Court, dated May 18, 2008. t -7g2 Curtis- rtis R. Lo Prothonot ry Cu erland County MBNA AMERICA BANK, N.A., IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. FRED BRILLHART, DEFENDANT NO. 06-4289 CIVIL IN RE: PRELIMINARY OBJECTIONS BEFORE OLER, J., GUIDO, J. AND EBERT, J. ORDER OF COURT AND NOW, this 18th day of May, 2007, upon consideration of the Defendant's Preliminary Objections to Plaintiff's Complaint, the Plaintiff's Response thereto and after argument, IT IS HEREBY ORDERED AND DIRECTED that the Court finds that the verification to the Complaint is defective in that the attorney for the Plaintiff should not have signed the verification in that there was time within the statute of limitations to allow a party other than the Plaintiff's attorney to sign the verification and that mere expediency does not satisfy the requirement of Pa.R.C.P. 1024(c)(2). However, the Defendant's request to have the Plaintiff's complaint dismissed on this ground is DENIED and the Plaintiff shall be given 30 days from the date of this order to amend the defective verification. Monroe Contract Corporation v. Harrison Square Inc 405 A.2d 954 (Pa. Super. 1979). IT IS FURTHER ORDERED AND DIRECTED that all of the Defendant's other preliminary objections are DISMISSED and Defendant's request for recoupment of fees and costs is DENIED. By the Court, M. L. Ebert, Jr., J. VERIFICATION I, 'goLJ- LIJ 1 , acknowledge that I have the authority to execute this Verification on behalf of MBNA America Bank, N.A., and certify that the foregoing Complaint is based upon information which has been gathered by my counsel in the preparation of this document. The language of this document is that of counsel and not my own. I have read the document and to the extent that this Complaint is based upon information which I have given to counsel, it is true and correct and to the best of my knowledge, information dnd belief. To the extent that the content of this Complaint 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. § 4904 relating to unworn falsification to authorities which provides that if I knowingly make false averments, I may be subject to criminal penalties. MBNA America Bank, N.A. --- %' (Signature) - /6?;- L A y (Title) Dated: p-2 FRED BRILLHART 152 LANCASTER BLVD. MECNANICSBURG, PA 17055 717 766 1332 March 1, 2008 David R. Galloway 4660 Trindle Road, 3`d Floor W&A File No. 126157731 Camp Hill, PA 17011 Re: MBNA/MASTERCARD Vs. FRED BRILLHART Docket No. 2006-1316 Dear David R. Galloway Enclosed herein please find a 10-Day Notice pursuant to Rule 237.1 of the Pennsylvania Rules of Civil Procedure. Fred Brillhart 152 Lancaster Blvd. Mechanicsburg, PA 17055 Enclosure CC: David R. Galloway Fxti r?, r P "4'7'V 1113 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MBNA AMERICA BANK, NA. ) Plaintiff ) V. ) ) FRED BRILLHART ) Defendants S No. 06-4289-CIVIL TERM IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU FAILED TO TAKE THE ACTION REQUIRED OF YOU IN THIS CASE. UNLESS YOU ACT WITHIN 10 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/ PA LAWYER REFERREL SERVICE PENNSYLVANIA BAR ASSN. P.O. BOX 186 HARRISBURG, PA 17108 Sincerely, 3 -1-og Fred Brillhart Date IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MBNA AMERICA BANK, NA. ) Plaintiff ) V. ) FRED BRILLHART ) Defendants S No. 06-4289-CIVIL TERM CERTIFICATE OF SERVICE The undersigned does hereby certify that a true and correct copy of 10-Day Notice pursuant to Rule 237.1 of the Pennsylvania Rules of Civil Procedure has been sent to the following address: Wolpoff & Abramson, LLP David R. Galloway, Esquire 4660 Trindle Road, 3`d Floor Camp Hill, Pa. 17011 Sincerely, 3 I-?8 Fred Brillhart Date Mechanicsburg Main Post Office MECHANICSBURG, Pennsylvania 170553459 4134870055 -0098 03/01/2008 (800)275-8777 01:50:46 PM Sales Receipt Product Sale Unit Final Description Qty Price Price CAMP HILL PA 17011 $0.41 Zone-1 First-Class Letter 0.10 oz. Certified $2.65 Label 70072680000023640289 Issue PVI: $3.06 Total: $3.06 Paid by: MasterCard $3.06 Account #: XXXXXXXXXXXX1715 Approval 00120Z Transaction #: 791 23 903110112 Order stamps at USPS.com/shop or call 1-800-Stamp24. Go to USPS.com/clicknship to print shipping labels with postage. For other information call 1-800-ASK-USPS. Bill#: 1000203123475 Clerk: 16 All sales final on stamps and postage. Refunds for guaranteed services only. Thank you for your business. tx?,r?x??rrr?crrxr?,rrrxrrrc?rcrrrxr?rr?c?r*,r?rrrrr,t?r?r*trr HELP US SERVE YOU BETTER Go to: http://gx.gallup.com/pos TELL US ABOUT YOUR RECENT POSTAL EXPERIENCE YOUR OPINION COUNTS rx>rxxx?rzr?r?r>r*?r*?r?r?r?r>rx*??rr?r?r?r?r?rxx*:?,??r?,? Customer Copy Er • • nJ ° M Postage $ ti 1 Certified Fee ° Postmark ° Retum Receipt Fee W" , I U Here O (Endorsement Required) ° Restricted Delivery Fee ° (Endorsement Required) cc) .D Total Postage & Fees ru C3 .. ....... 'Rant . .. . ..----..`....... C3 pt or PO No. C?C71»?11C Jl?..._.7?Y??I?mT city, State, Z1P+4Z l Y j I N)?+ )? T1 5 0 1 1 Fx? ,3? Page 1 of 1 Subj: USPS Shipment Info for 7007 2680 0000 2364 0289 Date: 3/7/2008 12:22:43 P.M. Eastern Standard Time From: U.S. Postal Service us s com To: Fredrico7777@aol.com This is a post-only message. Please do not respond. Fred Brillhart has requested that you receive the current Track & Confirm information, as shown below. Current Track & Confirm e-mail information provided by the U.S. Postal Service. Label Number. 7007 2680 0000 2364 0289 Service Type: Certified Shipment Activity Location Date & Time Delivered CAMP HILL PA 17011 03/03/08 1:01pm Acceptance MECHANICSBURG PA 17055 03/01/08 1:50pm USPS has not verified the validity of any email addresses submitted via its online Track & Confirm tool. For more information, or if you have additional questions on Track & Confirm services and features, please visit the Frequently Asked Questions (FAQs) section of our Track & Confirm site at hftp:/hvww.usps.com/shipping/trackandconfirmfaqs.htm 41 Friday, March 07, 2008 AOL: Fredrico7777 MAIN OFFICE TWO I? RON CENTRE 702 KINS FARM BLVD., ROCKVILLE, MD 20850 REGIONAL OFFICES 10605 JUDICIAL DR., BLDG. A-5, FAIRFAX, VA 22030 17 WEST CARY STREET, RICHMOND, VA 23220 5122 GREENWICH RD., VIRGINIA BEACH, VA 23462 919 N. MARKET ST., STE. 1300, WILMINGTON, DE 19899 1 VALLEY BANK BLDG., BOX 1226, CLARKSBURG, WV 26302 4660 TRINDLE ROAD, STE. 300, CAMP HILL, PA 17011 301 GRANT ST., STE. 4300, PITTSBURGH, PA 15219 28632 ROADSIDE DR., STE. 265, AGOURA HILLS, CA 91301 39500 HIGH POINTE BLVD., STE. 250, NOVI, MI 48375 300 CANAL VIEW BLVD., ROCHESTER, NY 14623 5215 N. O'CONNOR BLVD., STE. 1060, LAS COLINAS, TX 75039 3200 SOUTHWEST FREEWAY, STE. 3300, HOUSTON, TX 77027 111 SOLEDAD ST., STE. 300, SAN ANTONIO, TX 78205 1201 PEACHTREE STREET, STE. 1717, ATLANTA, GA 30361 301 CARLSON PKWY., STE. 303, MINNETONKA, MN 55305 4643 S. ULSTER ST., STE. 920, DENVER, CO 80237 5355 TOWN CENTER ROAD, STE. 1002, BOCA RATON, FL 33486 Mr. Fred Brillhart 152 Lancaster Blvd Mechanicsburg, Pa 17055 LAW OFFICES WOLPOFF & ABRAMSON, L.L.P Attorneys in the Practice of Debt Collection (A National Collection Attorney Network Firm) 4660 TRINDLE ROAD SUITE 300 CAMP HILL, PA 17011 717-303-6700 OUTSIDE THE CAMP HILL LOCAL AREA (TOLL FREE) 1-800-758-0675 FACSIMILE 717-737-9051 PLEASE DIRECT ALL INQUIRIES TO THE CAMP HILL OFFICE March 5, 2008 RE: MBNA AMERICA BANK, N.A. FRED BRILLHART DOCKET #: 06-4289 - Cumberland County C.C.P. W&A #: 135831858 Dear Mr. Brillhart: NATIONAL COLLECTION ATTORNEY NETWORK AFFILIATED FIRM LOCATIONS rNOT REGIONAL OFFICES OF WOLPOFF & ABRAMSON. L.L.P.1' BIRMINGHAM, ALABAMA FARGO, NORTH DAKOTA ANCHORAGE, ALASKA CLEVELAND, OHIO PHOENIX, ARIZONA OKLAHOMA CITY, OKLAHOMA LITTLE ROCK, ARKANSAS EUGENE, OREGON EAST HARFORD, CONNECTICUT PROVIDENCE, RHODE ISLAND HONOLULU, HAWAII COLUMBIA, SOUTH CAROLINA BOISE, IDAHO KNOXVILLE, TENNESSEE CHICAGO, ILLINOIS SANDY, UTAH MERRILLVILLE, INDIANA MILWAUKEE, WISCONSIN KANSAS CITY, KANSAS RAWLINS, WYOMING LEXINGTON, KENTUCKY SEATTLE, WASHINGTON METAIRIE, LOUISIANA WORCESTER, MASSACHUSETTS ST. LOUIS, MISSOURI GREAT FALLS, MONTANA OMAHA, NEBRASKA • The National Collection LAS VEGAS, NEVADA Attorney Network is an MANCHESTER, NEW HAMPSHIRE affiliation of separate law firms CEDAR KNOLLS, NEW JERSEY RALEIGH, NORTH CAROLINA W&A Hours of Operation 8 a.m.-6 p.m. ET M-F DAVID R. GALLOWAY, ESQUIRE As you know, the undersigned represents Plaintiff in the above matter. We write to respond to the 237.1 Notice you served on our client on our about March 1, 2008. In the event you no longer have a copy of our Reply to New Matter previously filed with the Court, we enclose an additional copy for your review. If you believe the 237.1 notice applies to something other than your New Matter, please immediately contact us. 1 can be reached at (717) 303-6751. Additionally, if you are interested in resolving this matter without further litigation, please feel free to contact me at 717-303-6751. Very truly yours, .W_OLPOFF & ABRAMSON, LLP David DRG/czf THIS IS AN ATTEMPT BY A DEBT COLLECTOR TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. n lltl? 0 O cL w Fa !?n '-G dik IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW MBNA AMERICA BANK, N.A. Plaintiff, Vs. FRED BRILLHART 152 LANCASTER BLVD. MECHANICSBURG,PA. 17055-3550 No. 06-4289-CIVIL TERM PRAECIPE FOR DEFAULT JUDGMENT Pa.R.C.P.237 PRAECIPE FOR ENTRY OF JUDGMENT FOR FAILURE TO PLEAD TO THE PROTHONOTARY: Enter Judgment against Plaintiff MBNA AMERICA BANK, N.A., for failure to plead to Defendant Brillhart's New Matter; Failure to adhere to previous Court Order, Dated May 18, 2006 regarding "defective verification"; Failure to provide verification or certificate of service thereto. A copy of the Judges order is attached hereto. Pursuant to Pa. R.C.P. 237.11, I certify that a written notice of the intention to file this praecipe was mailed or delivered to the attorney for the party against whom judgment is to be entered, after the default occurred and at least ten (10) days prior to the date of the filing of this praecipe and a copy of that notice is attached. v Fred Brillhardpro se 152 Lancaster Blvvd. Mechanicsburg, Pa. 17055-3550 This 13 day of 1444e? , 2008, Default Judgment is entered in favor of Fred Brillhart, Defendant, and against MBNA America Bank, N.A., Plaintiff, by default, for failure to plead. Alzal Proth no of Cumberland County FRED BRILLHART 152 LANCASTER BLVD. MECNANICSBURG, PA 17055 717 7661332 March 1, 2008 David R. Galloway 4660 Trindle Road, 3rd Floor Camp Hill, PA 17011 Re: MBNA/MASTERCARD Vs. FRED BRILLHART Docket No. 2006-1316 W&A File No. 126157731 4 Dear David R. Galloway Enclosed herein please find a 10-Day Notice pursuant to Rule 237.1 of the Pennsylvania Rules of Civil Procedure. Enclosure CC: David R. Galloway 0-3 i? Fred Brilihart 152 Lancaster Blvd. Mechanicsburg, PA 17055 P9s? / df 3 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MBNA AMERICA BANK, NA. ) ) Plaintiff ) V. ) FRED BRILLHART ) } Defendants S IMPORTANT NOTICE No. 06-4289-CIVIL TERM YOU ARE IN DEFAULT BECAUSE YOU FAILED TO TAKE THE ACTION REQUIRED OF YOU IN THIS CASE. UNLESS YOU ACT WITHIN 10 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/ PA LAWYER REFERREL SERVICE PENNSYLVANIA BAR ASSN. P.O. BOX 186 HARRISBURG, PA 17108 Sincerely, r " -- " ?0?' " ,? 3 - l - dg Fred Brillhart Date IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MBNA AMERICA BANK, NA. ) Plaintiff ) V. ) FRED BRILLHART ) Defendants S No. 06-4289-CIVIL TERM CERTIFICATE OF SERVICE The undersigned does hereby certify that a true and correct copy of 10-Day Notice pursuant to Rule 237.1 of the Pennsylvania Rules of Civil Procedure has been sent to the following address: Wolpoff & Abramson, LLP David R. Galloway, Esquire 4660 Trindle Road, 3?d Floor Camp Hill, Pa. 17011 Sincerely, r 3 ^ I - 012 Fred Brillhart Date Mechanicsburg Main Post Office MECHANICSBURG, Pennsylvania 170553459 4134870055 -0098 03101/2008 (800)275-8777 01:50:46 PM Sales Receipt Product Sale Unit Final Description Qty Price Price CAMP HILL PA 17011 $0.41 Zone-1 First-Class Letter 0.10 oz. Certified $2.65 Label 0: 70072680000023640289 ==__==== Issue PVI: $3.06 Total : $3.06s Paid by: MasterCard $3.06 Account #: XXXXXXXXXXXX1715 Approval 00120Z Transaction 791 23 903110112 Order stamps at USPS.com/shop or call 1-800-Stamp24. Go to USPS.com/clicknship to print shipping labels with postage. For other information call 1-800-ASK-USPS. Bill#: 1000203123475 Clerk: 16 All sales final on stamps and postage. Refunds for guaranteed services only. Thank you for your business. 1C 7kIC7t 7P717t7t X7K7C7K 7C 7C7K7K 7Cl?1C iC1t%X'7C7YW K7C1CX'1C A'A IC 1Y 7rIC7Y 7k Yt ItYCYtYt 7Y7k 1t7Kyl7k7r 7C 7t7K7C7f 7C7r 1K7Y 7K7KIC 7t7C 7K7K It A' k %' X7? K7C 7t X%X HELP US SERVE YOU BETTER Go to: http://gx.gal)up.com/pos TELL US ABOUT YOUR RECENT POSTAL EXPERIENCE ?7; X10 m 01 m m n ? .0 LL•_ U. y LL c m M ZQ 0. c g r IS Q a l U ¢m Om N a j '140 F••. m/ S1 0 :U 6920 h9E2 0000 0992 x.002. Page 1 of 1 Subj: USPS Shipment Info for 7007 2680 0000 2364 0289 Date: 3/7/2008 12:22:43 P.M. Eastern Standard Time From: U.S. Postal Servic?Quasps.com To: Fredrico7777@aol.com This is a post-only message. Please do not respond. Fred Brillhart has requested that you receive the current Track & Confirm information, as shown below. Current Track & Confirm e-mail information provided by the U.S. Postal Service. Label Number. 7007 2680 0000 2364 0289 Service Type: Certified Shipment Activity Location Date & Time Delivered CAMP HILL PA 17011 03/03/08 1:01pm Acceptance MECHANICSBURG PA 17055 03/01/08 1:50pm USPS has not verified the validity of any email addresses submitted via its online Track & Confirm tool. For more information, or if you have additional questions on Track & Confirm services and features, please visit the Frequently Asked Questions (FAQs) section of our Track & Confirm site at hftp://www.usps.com/shipping/trackandconfirmfaqs.htm Friday, March 07, 2008 AOL: Fredrico7777 MAIN OFFICE TWO IRVINGTON CENTRE 1'02 KING FARIA41LVD., ROCKVILLE, MD 20850 REGIONAL OFFICES 10605 JUDICIAL DR., BLDG. A-5, FAIRFAX, VA 22030 17 WEST CARY STREET, RICHMOND, VA 23220 5122 GREENWICH RD., VIRGINIA BEACH, VA 23462 919 N. MARKET ST., STE. 1300, WILMINGTON, DE 19899 1 VALLEY BANK BLDG., BOX 1225, CIARKSBl1RG, WV 26302 4WD TRINDLE ROAD, STE. 300, CAMP HILL, PA 17011 301 GRANT ST., STE. 4300, PITTSBURGH, PA 15219 28632 ROADSIDE DR., STE. 265, AGOURA HILLS, CA 91301 39500 HIGH POINTE BLVD., STE. 250, NOVI, MI 48375 300 CANAL VIEW BLVD., ROCHESTER, NY 14623 5215 N. O'CONNOR BLVD., STE. 1060, LAS COLINAS, TX 75039 3200 SOUTHWEST FREEWAY, STE. 3300, HOUSTON, TX 77027 111 SOLEDAD ST., STE. 300, SAN ANTONIO, TX 78205 1201 PEACHTREE STREET, STE. 1717, ATLANTA, GA 30361 301 CARLSON PKWY., STE. 303, MINNETONKA, MN 55305 4843 S. ULSTER ST., STE. 920, DENVER, CO 80237 5355 TOWN CENTER ROAD, STE. 1002, BOCA RATON, FL 33486 LAW OFFICES WOLPOFF & ABRAMSON, L.L.P. Attorneys in the Practice of Debt Collection (A National Collection Attorney Network Firm) 4660 TRINDLE ROAD SUITE 300 CAMP HILL, PA 17011 717-303-6700 OUTSIDE THE CAMP HILL LOCAL AREA (TOLL FREE) 1-800-758-0675 FACSIMILE 717-737-9051 PLEASE DIRECT ALL INQUIRIES TO THE CAMP HILL OFFICE March 5, 2008 Mr. Fred Brillhart 152 Lancaster Blvd Mechanicsburg, Pa 17055 RE: MBNA AMERICA BANK, N.A. FRED BRILLHART DOCKET #: 06-4289 - Cumberland County C.C.P. W&A #: 135831858 Dear Mr. Brillhart: NATIONAL COLLECTION ATTORNEY NETWORK AFFILIATED FIRM LOCATIONS rNOT REGIONAL OFFICES OF WOLPOFF & ABRAMSON, L.L.P.1- BIRMINGHAM, ALABAMA FARGO, NORTH DAKOTA ANCHORAGE, ALASKA CLEVELAND, OHIO PHOENIX, ARIZONA OKLAHOMA CITY, OKLAHOMA LITTLE ROCK, ARKANSAS EUGENE, OREGON EAST HARFORD, CONNECTICUT PROVIDENCE, RHODE ISLAND HONOLULU, HAWAII COLUMBIA, SOUTH CAROLINA BOISE, IDAHO KNOXVILLE, TENNESSEE CHICAGO, ILLINOIS SANDY, UTAH MERRILLVILLE, INDIANA MILWAUKEE, WISCONSIN KANSAS CITY, KANSAS RAWLINS, WYOMING LEXINGTON, KENTUCKY SEATTLE, WASHINGTON METAIRIE, LOUISIANA WORCESTER, MASSACHUSETTS ST. LOUIS, MISSOURI GREAT FALLS, MONTANA OMAHA, NEBRASKA • The National Collection LAS VEGAS, NEVADA Attorney Network is an MANCHESTER, NEW HAMPSHIRE affiliation of separate law firms CEDAR KNOLLS, NEW JERSEY RALEIGH, NORTH CAROLINA W&A Hours of Operation 8 am -6 p.m. ET M-F DAVID R. GALLOWAY, ESQUIRE As you know, the undersigned represents Plaintiff in the above matter. We write to respond to the 237.1 Notice you served on our client on our about March 1, 2008. In the event you no longer have a copy of our Reply to New Matter previously filed with the Court, we enclose an additional copy for your review. If you believe the 237.1 notice applies to something other than your New Matter, please immediately contact us. 1 can be reached at (717) 303-6751. Additionally, if you are interested in resolving this matter without further litigation, please feel free to contact me at 717-303-6751. Very truly yours, NOLPOFF & ABRAMSON, LLP David DRG/czf THIS IS AN ATTEMPT BY A DEBT COLLECTOR TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. i y?, b Q ? C) ? p c C=_ -n C71.3 -r ; ?._ tv ?Ti Tonilyn M. Chippie, Esquire ID. 87852 Wolpoff & Abramson, LLP. Attorneys for Plaintiff Attorneys in the Practice of Debt Collection 4660 Trindle Rd. Suite 300 Camp Hill, PA 17011 (717) 303-6700 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MBNA AMERICA BANK, N.A., No. 06-4289 CIVIL TERM Plaintiff vs. FRED BRILLHART, CIVIL ACTION - LAW Defendant PETITION TO OPEN DEFAULT JUDGMENT AND JUDGMENT OF NON PROS AND NOW, TO WIT, this 19`"day of March, 2008, comes the Plaintiff, MBNA America Bank, N.A., by and through its attorneys, and the law firm of Wolpoff & Abramson, L.L.P., and files the following Petition to Open Judgment Default Judgment and Judgment of Non Pros in support avers as follows: 1. Petitioner, MBNA America Bank, N.A., is a National Banking Association organized under the National Banking Act, 12 U.S.C. § 24, authorizing it to sue as a natural person, with a principal place of business situated at 655 Paper Mill Road, Wilmington, DE 19884. 2. Respondent, Frederick Brillhart is an adult individual with a last known mailing address of152 Lancaster Blvd, Mechanicsburg, Cumberland County, Pennsylvania 17055. 3. On or about, July 26, 2006, Petitioner instituted a Civil Action through the filing of a Complaint against Respondent for monies due Petitioner pursuant to an account balance incurred by Respondent, as a result of Respondent being a regular user of a charge card, provided to Respondent by Petitioner, for the purchase of products, goods and/or for obtaining services or funds. 4. That on or about September 7, 2006, Respondent filed Preliminary Objections. 5. Petitioner responded and Argument was heard, the Court ruled that Petitioner was to amend Verification in this matter as signed by a representative of the Petitioner and not signed by Petitioner's counsel. As a result, Petitioner's representative, Robert Winzinger, signed the Verification and a Praecipe to Substitute Verification with the Verification was filed with the Court on or about May 31, 2007. A true and Correct copy of the Praecipe to Substitute Verification and the Verification is attached hereto as Exhibit "A". 6. Respondent eventually filed an "Amended Answer and New Matter. 7. Petitioner responded to the New Matter which was filed with the Court on July 31, 2007. A true and correct copy of the Reply to New Matter is attached hereto as Exhibit "B." 8. Despite the Praecipe to Substitute Verification and the verification being filed, see Exhibit "A" and the Reply to New Matter being filed, see Exhibit "B", Respondent, in an attempt to circumvent the upcoming arbitration, sent a notice pursuant to Pa.R.C.P 237.1 to Counsel for the Petitioner on or about March 1, 2008. . 9. Counsel for the Petitioner responded, by forwarding Respondent an additional copy of the Reply to New Matter and by informing respondent if he believed that the 237.1 notice applied to anything else to contact Petitioner's Counsel immediately. A true and correct copy of the letter is attached hereto as Exhibit "C." 10. Due to the fact that Petitioner had complied with the Court Order of May 18, 2007 by filing a Praecipe to Substitute Verification, and the Verification signed by Petitioner's representative, and given the fact that Petitioner filed a Reply to New Matter, and Petitioner's Counsel notified Respondent of the same, Petitioner was shocked that Respondent filed a Praecipe for Entry of Judgment for Failure to Plead and the Praecipe to enter a Judgment of Non Pros. 11. The Praecipe for Entry of Judgment for failure to Plead was filed on or about March 13, 2008. 12. The Praecipe for Entry of Non Pros, apparently filed for the failure to not comply with the Court's Order of May 18, 2007, was filed on or about March 13, 2008. 13. Petitioner's counsel, immediately contacted the Prothonotary as there was clearly a mistake, but was informed that given Respondent's Pro-Se status they had to docket the Praecipes regardless of what the docket indicates. 14. As a result, and given the fact that Petitioner filed both a Reply to New Matter and the verification required by the Court, Petitioner brings the instant Petition. 13. Due to the fact that a Reply to New Matter was filed along with a Praecipe to substitute Verification and the Verification itself, Petitioner clearly possesses a meritorious cause of action against Respondent, and therefore the Default Judgment and the Judgment of Non Pros, should be opened and Petitioner and Respondent should proceed to Arbitration as scheduled on April 3, 2008. WHEREFORE, Petitioner/Plaintiff, MBNA America Bank, N.A., respectfully requests that this Honorable Court Open the Default Judgment and Judgment of Non Pros entered of record in the above captioned matter on March 13, 2008 and allow Petitioner/Plaintiff to pursue its cause of action against Respondent/Defendant. Respectfully submitted, Tonilyn M.Chippie, Esquire Attorney ID 87852 Wolpoff & Abramson, LLP Attorneys in the Practice of Debt Collection 4660 Trindle Road, Suite 300 Camp Hill, PA 17011 (717) 303-6700 Counsel for Plaintiff Exhibit "A" IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MBNA AMERICA BANK, N.A. Plaintiff VS. FRED BRILLHART Defendant NO. 06-4289-CIVIL TERM CIVIL ACTION - LAW PRAECIPE TO SUBSTITUTE VERMCATIONN To the Prothonotary: Please substitute the attached Verification signed by Robert Winzinger for the Attorney Verification attached to the Complaint. Respectfully Submitted, Date: s By: David R. Gallowa #87326 WOLPOFF & AB SON, LLP 4660 Trindle Rd., Suite 300 Camp Hill, PA 17011 Attorney for Plaintiff W&A File No. 135831858 VERIFICATION I, L i" . , acknowledge that I have the llee- authority to execute this Verification on behalf of MBNA America Bank, N.A., and certify that the foregoing Complaint is based upon information which has been gathered by my counsel in the preparation of this document. The language of this document is that of counsel and not my own. I have read the document and to the extent that this Complaint is based upon information which I have given to counsel, it is true and correct and to the best of my knowledge, information and belief. To the extent that the content of this Complaint 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. § 4904 relating to unsworn falsification to authorities, which provides that if I knowingly make false averments, I may be subject to criminal penalties. MBNA America Bank, N.A. (Signature) L/ VO (Title) Dated: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MBNA AMERICA BANK, N.A. Plaintiff NO. 06-4289-CIVIL TERM VS. FRED BRILLHART Defendant CIVIL ACTION - LAW CERTIFICATE OF SERVICE The undersigned does hereby certify that a true and correct copy of Praecipe To Substitute Verification was served upon the individual listed below by Regular Mail, Postage Pre-Paid on this .Ly of May, 2007. Mr. Fred Brillhart 152 Lancaster Boulevard Mechanicsburg, PA 17055 David R. Gallow y #87326 WOLPOFF & RAMSON, LLP 4660 Trindle Rd., Suite 300 Camp Hill, PA 17011 (717) 303-6751 N C9 ^ t^. ) T 1 Z `-:~ +t u-s Exhibit "B" IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MBNA AMERICA BANK, N.A. Plaintiff V. FRED BRILLHART Defendant No. 06-4289 CIVIL ACTION - LAW PLAINTIFF" S REPLY TO DEFENDANT'S NEW MATTER AND NOW, comes Plaintiff MBNA AMERICA BANK, N.A., by and through its attorneys, WOLPOFF & ABRAMSON, LLP, files its Reply To Defendant's New Matter as stated herein: 19. Paragraphs 1-18 contained in Plaintiffs Complaint are incorporated herein as if set forth in full. 20 -29. The allegations contained in these paragraphs are conclusions of law to which no response is necessary. 30. Denied. To the contrary, Plaintiff has not acted maliciously towards Defendant. 31. Denied pursuant to Pa.R.C.P. 1029(e). LAW OFFICES WOLYOIP ! A> M=ON. LI.a AMANM IN T88 PRAC77C8 OPDW C0ZJJV ON 4000 TIWIDLE ROAD THM FLOOR CAMP HILL, PA 17011 717.90&6700 WHEREFORE, Plaintiff respectfully requests this Honorable Court dismiss Defendant's New Matter with prejudice and enter a Judgment in favor of Plaintiff plus costs of suit. Respectfully Submitted, WOLPOFF & ABRAMSON, LLP By AA)9VYLa---` T yn M. Chi ie Attorney I.D. 87852 David R. Galloway Attorney I.D. 87326 4660 Trindle Rd., Ste. 300 Camp Hill, PA 17011 W&A File No. 158091657 Counsel for Plaintiff LAW OFFKM WCLPOPP A AWAMM, LLP. ATl7JAWn a 788 MUCl7G8 OP A8W C0ZJXCTM 4M TFW4M E ROAD 11-M FLOOR CAMP HIL PA 17011 7171038700 VERIFICATION The undersigned hereby states that he is the attorney for the Plaintiff MBNA America Bank, N.A., who is located outside of this jurisdiction and in order to file the within document in an expedient and timely manner, he is authorized to take this verification on behalf of said Plaintiff in the within action and verifies that the statements made in the foregoing Preliminary Objections are true and correct to the best of his knowledge, information, and belief, based upon information provided by Plaintiff. The undersigned understands that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unworn falsification to authorities. WOLPOFF & ABRAMSON, LLP '46nilyn M. Chippie Attorney I.D. 87852 David R. Galloway Attorney ID No. 87326 4660 Trindle Road, Suite 300 Camp Hill, PA 17011 (717) 303-6751 Counsel for Plaintiff LAW OFFKM VYOUPOFF! AMMMOK L.I.P. A771DR1V M Ali T=MCT= OP aW COLLEMON 1090 TAINDLE ROAD THIRD FLOOR CAMP HILL, PA 17011 717.3034700 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FKA MBNA AMERICA BANK, N.A., No. 06-4289 Plaintiff VS. FRED BRILLHART, CIVIL ACTION - LAW Defendant CERTIFICATE OF SERVICE The undersigned does hereby certify that I served a copy of the foregoing Preliminary Objections on the pro se Defend`a-nit, by First Class Mail, Postage Pre- Paid, a copy thereof on this Al day of aJ u , 2007, to: Fred Brillhart 152 Lancaster Blvd. Mechanicsburg, PA 17055 WOLPOFF & ABRAMSON, LLP 1;6nilyn M. hippie " Attorney I.D. 87852 David R. Galloway Attorney ID No. 87326 4660 Trindle Road, Suite 300 Camp Hill, PA 17011 (717) 303-6751 Counsel for Plaintiff LAW OFFJ= WOLIWF A ADRAYSM. i t D A77T MYS LIz IN PIUMCB OFDW COLLEMON 4M TRNDLE ROAD THIRD FLOOR CAMP HILL, FA 17011 717-3036700 e-? ? ..+ y ? ? ?`? : ?- ? ???? r ?.? N Exhibit "C" MAIN OFFICE TWO IRVh4GTON CENTRE 02 KING FARM BLVD., ROCKVILLE, MD 20850 REGIONAL OFFICES 10605 JUDICIAL DR., BLDG. M5, FAIRFAX, VA 22030 17 WEST CARY STREET, RICHMOND, VA 23220 5122 GREENWICH RD., VIRGINIA BEACH, VA 23462 919 N. MARKET ST., STE. 1300, WILMINGTON, DE 19899 1 VIWFY13AWaDG..BOK I=ClARKSM WV 28302 4660 TRINDLE ROAD, STE- 300. CAMP HILL, PA 17011 301 GRANT ST., STE. 4300, PITTSBURGH, PA 15219 266 ROADSIDE DR.. STE. 255, AGOURA HILLS. CA 91301 39500 HIGH POINTE BLVD., STE. 250, NOVI, MI 48375 300 CANAL VIEW BLVD.. ROCHESTER, NY 14823 5215 N. O'CONNOR BLVD., STE. 1080, LAS COLINAS. TX 75039 3200 SOUTHWEST FREEWAY, STE. 3300, HOUSTON, TX 77027 111 SOLEDAD ST., STE. 300, SAN ANTONIO, TX 78205 1201 PEACHTREE STREET, STE. 1717, ATLANTA, GA 30361 301 CARLSON PKWY., STE. 303, MINNETONKA, MN 55305 4843 S. ULSTER ST., STE. 920. DENVER, CO 80237 5355 TOWN CENTER ROAD, STE. 1002, BOCA RATON, FL 33486 LAW OFFICES WOLPOFF 8t ABRAMSON, L.L.P. Attomeys in the Practice of Debt Collection (A National Collection Attomey Network Finn) 4660 TRINDLE ROAD SUITE 300 CAMP HILL, PA 17011 717-303-6700 OUTSIDE THE CAMP HILL LOCAL AREA (TOLL FREE) 1-800-758-0675 FACSIMILE 717-737-9051 PLEASE DIRECT ALL INOUIRIES TO THE CAMP HILL OFFICE March 5, 2008 Mr. Fred Brillhart 152 Lancaster Blvd Mechanicsburg, Pa 17055 RE: MBNA AMERICA BANK, N.A. FRED BRILLHART DOCKET #: 06-4289 - Cumberland County C.C.P. W&A #: 135831858 Dear Mr. Brillhart: NATI NA COLL C r' )N ATTORNEY NETWORK A I AT D RM L, NOT REGIONAL OFFICES F W LPi) F 3 ABRAMSON. LL.P.1' BIRMINGHAM, ALASAMI FARGO, NORTH DAKOTA ANCHORAGE. ALASKA CLEVELAND, OHIO PHOENIX, ARIZONA CKLAHOMA CITY, OKLAHOMA LITTLE ROCK. ARKANSA'i EUGENE, OREGON EAST HARFORD, CONN' CTICUT PROVIDENCE, RHODE ISLAND HONOLULU, HAWAII C 3LUMBIA, SOUTH CAROLINA BOISE, IDAHO ftOXMLLE, TENNESSEE CHICAGO, ILLINOIS SA NOY, UTAH MERRILLVILLE, INDIAW 1,11'2NAUKEE, WISCONSIN KANSAS CITY. KANSAS RA 'NUNS, WYOMING LEXINGTON. KENTUCKY : FATTLE, WASHINGTON METAIRIE, LOUISIANA WORCESTER, MASSACHUSETTS ST. LOUIS, MISSOURI GREAT FALLS, MONTANA OMAHA, NEBRASKA ' T ,e National Collection LAS VEGAS, NEVADA ;.t+; rney Network N an MANCHESTER, NEW HAMPSHIRE a I istion of separate law firms CEDAR KNOLLS, NEW JERSEY RALEIGH, NORTH CAROLINA -.z.A Hours of Operubon a a m.•6 p.m. ET M-F DAVID R. GALLOWAY, ESQUIRE As you know, the undersigned represents Plaintiff in the above matter. We write to respond to the 237.1 Notice you served on our client on our about March 1, 2008. In the event you no longer have a copy of our Reply to New Matter previously filed with the Court, we enclose an additional copy for your review. If you believe the 237.1 notice applies to something other than your New Matter, please immediately contact us. I can be reached at (717) 303-6751. Additionally, if you are interested in resolving this matter without further litigation, please feel free to contact me at 717-303-6751. Very truly yours, OLPOFF & Al David DRG/czf MSON, LLP THIS IS AN ATTEMPT BY A DEBT COLLECTOR TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MBNA AMERICA BANK, N.A., No. 06-4289 CIVIL TERM Plaintiff vs. FRED BRILLHART, CIVIL ACTION - LAW Defendant CERTIFICATE OF SERVICE The undersigned does hereby certify that I served a copy of the foregoing Petition to Open the Default Judgment and the Judgment of Non Pros upon Pro se Defendant, by First Class Mail, Postage Pre-Paid, a copy thereof on this 20th day of March, 2008, to: Fred Brillhart 152 Lancaster Blvd Mechanicsburg, PA 17055 Tonilyn ippie, Esquire Attorney 87852 Wolpoff & Abramson, LLP Attorneys in the Practice of Debt Collection 4660 Trindle Road, Suite 300 Camp Hill, PA 17011 (717) 303-6700 Counsel for Plaintiff ? r .n r ._+ ` _ ?' _,-, • .,? t i'` _z' N " t 3 .. C.:.r % Tonilyn M. Chippie, Esquire ID. 87852 Wolpoff & Abramson, LLP. Attorneys for Plaintiff Attorneys in the Practice of Debt Collection 4660 Trindle Rd. Suite 300 Camp Hill, PA 17011 (717) 303-6700 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA VS. MBNA AMERICA BANK, N.A., Plaintiff : No. 06-4289 CIVIL TERM CIVIL ACTION - LAW FRED BRILLHART, Defendant PETITION TO OPEN DEFAULT JUDGMENT AND JUDGMENT OF NON PROS AND NOW, TO WIT, this 19''day of March, 2008, comes the Plaintiff, MBNA America Bank, N.A., by and through its attorneys, and the law firm of Wolpoff & Abramson, L.L.P., and files the following Petition to Open Judgment Default Judgment and Judgment of Non Pros in support avers as follows: 1. Petitioner, MBNA America Bank, N.A., is a National Banking Association organized under the National Banking Act, 12 U.S.C. § 24, authorizing it to sue as a natural person, with a principal place of business situated at 655 Paper Mill Road, Wilmington, DE 19884. 2. Respondent, Frederick Brillhart is an adult individual with a last known mailing address of152 Lancaster Blvd, Mechanicsburg, Cumberland County, Pennsylvania 17055. 3. On or about, July 26, 2006, Petitioner instituted a Civil Action through the filing of a Complaint against Respondent for monies due Petitioner pursuant to an account balance incurred by Respondent, as a result of Respondent being a regular user of a charge card, provided to Respondent by Petitioner, for the purchase of products, goods and/or for obtaining services or funds. 4. That on or about September 7, 2006, Respondent filed Preliminary Objections. 5. Petitioner responded and Argument was heard, the Court ruled that Petitioner was to amend Verification in this matter as signed by a representative of the Petitioner and not signed by Petitioner's counsel. As a result, Petitioner's representative, Robert Winzinger, signed the Verification and a Praecipe to Substitute Verification with the Verification was filed with the Court on or about May 31, 2007. A true and Correct copy of the Praecipe to Substitute Verification and the Verification is attached hereto as Exhibit "A". 6. Respondent eventually filed an "Amended Answer and New Matter. 7. Petitioner responded to the New Matter which was filed with the Court on July 31, 2007. A true and correct copy of the Reply to New Matter is attached hereto as Exhibit `B." 8. Despite the Praecipe to Substitute Verification and the verification being filed, see Exhibit "A" and the Reply to New Matter being filed, see Exhibit "B", Respondent, in an attempt to circumvent the upcoming arbitration, sent a notice pursuant to Pa.R.C.P 237.1 to Counsel for the Petitioner on or about March 1, 2008.. 9. Counsel for the Petitioner responded, by forwarding Respondent an additional copy of the Reply to New Matter and by informing respondent if he believed that the 237.1 notice applied to anything else to contact Petitioner's Counsel immediately. A true and correct copy of the letter is attached hereto as Exhibit "C." 10. Due to the fact that Petitioner had complied with the Court Order of May 18, 2007 by filing a Praecipe to Substitute Verification, and the Verification signed by Petitioner's representative, and given the fact that Petitioner filed a Reply to New Matter, and Petitioner's Counsel notified Respondent of the same, Petitioner was shocked that Respondent filed a Praecipe for Entry of Judgment for Failure to Plead and the Praecipe to enter a Judgment of Non-Pros. 11. The Praecipe for Entry of Judgment for failure to Plead was filed on or about March 13, 2008. 12. The Praecipe for Entry of Non Pros, apparently filed for the failure to not comply with the Court's Order of May 18, 2007, was filed on or about March 13, 2008. 13. Petitioner's counsel, immediately contacted the Prothonotary as there was clearly a mistake, but was informed that given Respondent's Pro-Se status they had to docket the Praecipes regardless of what the docket indicates. 14. As a result, and given the fact that Petitioner filed both a Reply to New. Matter and the verification required by the Court, Petitioner brings the instant Petition. 13. Due to the fact that a Reply to New Matter was filed along with a Praecipe to substitute Verification and the Verification itself, Petitioner clearly possesses a meritorious cause of action against Respondent, and therefore the Default Judgment and the Judgment of Non Pros, should be opened and Petitioner and Respondent should proceed to Arbitration as scheduled on April 3, 2008. WHEREFORE, Petitioner/Plaintiff, MBNA America Bank, N.A., respectfiAl requests that this Honorable Court Open the Default Judgment and Judgment of Non Pros entered of record in the above captioned matter on March 13, 2008 and allow Petitioner/Plaintiff to pursue its cause of action against Respondent/Defendant. Respectfully submitted, 4r--- Ton4m M. hippie, Esquire Attorney ID 87852 Wolpoff & Abramson, LLP Attorneys in the Practice of Debt Collection 4660 Trindle Road, Suite 300 Camp Hill, PA 17011 (717) 303-6700 Counsel for Plaintiff dW, ' I?3U0 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MBNA AMERICA BANK, N.A., No. 06-4289 CIVIL TERM Plaintiff VS. FRED BRILLHART, CIVIL ACTION - LAW Defendant CERTIFICATE OF SERVICE The undersigned does hereby certify that I served a copy of the foregoing Petition to Open the Default Judgment and the Judgment of Non Pros upon Pro se Defendant, by First Class Mail, Postage Pre-Paid, a copy thereof on this 20d' day of March, 2008, to: Fred Brillhart 152 Lancaster Blvd Mechanicsburg, PA 17055 4 - Tonilyn M.Chippie, Esquire Attorney ID 87852 Wolpoff & Abramson, LLP Attorneys in the Practice of Debt Collection 4660 Trindle Road, Suite 300 Camp Hill, PA 17011 (717) 303-6700 Counsel for Plaintiff Exhibit "A" I- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MBNA AMERICA BANK, N.A. P102tiff Vs. FRED BREL LHART Defendant NO. 06-4289-CIVIL TERM CIVIL ACTION - LAW PRAECIM TO SUBSTITUTE VERIFICATION To the Prothonotary: Please substitute the attached Verification signed by Robert Winzinger for the Attorney Verification attached to the Complaint.. Respectfully Submitted, Date: 'e'l, JL?: By: David R. Gallowa #87326 WOLPOFF & AB SON, LLP 4660 Trindle Rd., Suite 300 Camp Hill, PA 17011 Attorney for Plaintiff W&A File No. 135831858 VERIFICATION acknowledge that I have the authority to execute this Verification on behalf of MBNA America Bank, N.A., and certify that the foregoing Complaint is based upon information which has been gathered by my counsel in the preparation of this document. The language of this document is that of counsel and not my own. I have read the document and to the extent that this Complaint is based upon information which I have givan to counsel, it is Uue and corroct and to the best of my knowledge, information and belief. To the extent that the content of this Complaint 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. § 4904 relating to unsworn falsification to authorities, which provides that if I knowingly make false averments, I may be subject to criminal penalties. MBNA America Bank, N.A. (J-- , (Signature) L/ (Title) Dated: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MBNA AMERICA BANK, N.A. Plaintiff NG. 06-4289-CIVEL TERM VS. FRED BRILLHART CIVIL ACTION - LAW Defendant CERTIFICATE OF SERVICE The undersigned does hereby certify that a true and correct copy of Pmecipe To Substitute Verification was served upon the individual listed below by Regular Mail, Postage Pre-Paid on this 3y of May, 2007. Mr. Fred Brillhart 152 Lancaster Boulevard Mechanicsburg, PA 17055 David R. Gallo4,,RAMSON, y #87326 WOLPOFF & LLP 4660 Trindle R., Suite 300 Camp Hill, PA 17011 (717) 303-6751 o S? ` f - ? c Exhibit `B" IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MBNA AMERICA BANK, N.A. Plaintiff V. FRED BRILLHART Defendant No. 06-4289 CIVIL ACTION - LAW PLAINTIF "S REPLY TO DEFENDANT'S NEW MATTER AND NOW, comes Plaintiff MBNA AMERICA BANK, N.A., by and through its attorneys, WOLPOFF & ABRAMSON, LLP, files its Reply To Defendant's New Matter as stated herein: 19. Paragraphs 1-18 contained in Plaintiffs Complaint are incorporated herein as if set forth in full. 20 -29. The allegations contained in these paragraphs are conclusions of law to which no response is necessary. 30. Denied. To the contrary, Plaintiff has not acted maliciously towards Defendant. 31. Denied pursuant to Pa.R.C.P. 1029(e). uw ass TN012'OW & ABNAUBW * I o Ar1VAM M W'NWPV-4CJXE AFDWCDLLvC"W 4 0=T11?1DLE ROAD TINS noon CAMP Ill, M 17011 717-1040700 WHEREFORE, Plaintiff respectfully requests this Honorable Court dismiss Defendant's New Matter with prejudice and enter a Judgment in favor of Plaintiff plus costs of suit. Respectfully Submitted. WOLPOFF & ABRAMSON, LLP B. A T _ yn M. Ch' ie Attorney I.D. 87852 David R. Galloway Attorney I.D. 87326 4660 Trindle Rd., Ste. 300 Camp Hill, PA 17011 W&A File No. 158091657 Counsel for Plaintiff LAM q1 IM Mater a AsKAN . ur. A77QRNM JN 7S M CI= 4M 7R E" ROAD M*W FUM MWMLLM17011 VERIFICATION le undersigned hereby states that he is the attorney for the Plaintiff MBNA America Bank, N.A., who is located outside of this jurisdiction and in order to file the within document in an expedient and timely manner, he is authorized to take this verification on behalf of said Plaintiff in the within action and verifies that the statements made in the foregoing Preliminary Objections are true and correct to the best of his knowledge, information, and belief, based upon information provided by Plaintiff. The undersigned understands that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unswom falsification to authorities. WOLPOFF 8t. ABRAMSON, LLP 46nilyn M. hippie Attorney I.D. 87852 David R. Galloway Attorney ID No. 87326 4660 Trindle Road, Suite 300 Camp Hill, PA 17011 (717) 303-6751 Counsel for Plaintiff uwoF"= iY0IP W & AIRAN9M i t R ATIVAM la VI nN ?RACY= ornwcorlamm T}M moon CAW tKL F% I M I 7174K64 M IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FKA MBNA AMERICA BANK, N.A., No. 06-4289 Plaintiff VS. FRED BRILLHART, CIVIL ACTION - LAW Defendant CERTIFICATE OF SERVICE The undersigned does hereby certify that I served a copy of the foregoing Preliminary Objections on the pro se Defendant, by First Class Mail, Postage Pre- Paid, a copy thereof on this --JJ} day of u' , 2007, to: Fred Brillhart 152 Lancaster Blvd. Mechanicsburg, PA 17055 WOLPOFF & ABRAMSON, LLP Unilyn M. Ukippie - Attorney I.D. 87852 David R. Galloway Attorney ID No. 87326 4660 Trindle Road, Suite 300 Camp Hill, PA 17011 (717) 303-6751 Counsel for Plaintiff LAW OR%= WIDUMW&ANRM= r.I.LF. A74OWMQII7!1RMUCT :8 o rDmcalizer N rM TrAd P ROAD rrm FLOW CAMP N" M 17071 717?90b7S70D t--Z q; F-I - pz ? s Tr• N ? tJ ? W Exhibit "C" MAIN OFFICE TWO IRVtWGTON CEPORE '02 KING FARM BLVD., ROCKVILLE, MD 20850 1EGIONAL OFFICES 10805 JUDICIAL DR., BLDG. A-5, FAIRFAX, VA 22030 17 WEST CARY STREET, RICHMOND, VA 23220 i122 GREENWICH RD., VIRGINIA BEACH, VA 23462 )19 N. MARKET ST., STE. 1300, WILMINGTON, DE 19899 IVMIEYBANKIX G.BM1224CLANG RG,VW28302 1880 TRINDLE ROAD, STE. 300, CAMP HILL, PA 17011 101 GRANT ST., STE. 4300, PITTSBURGH, PA 15219 18812 ROADSIDE DR., STE 285, AGOURA HILLS, CA 91301 ;9500 HIGH POINTE BLVD., STE. 250, NOVI, MI 48375 M CANAL VIEW BLVD., ROCHESTER, NY 14823 06 N. =014NOR BLVD.. STE, 1080 I AS COLINAS, TX 75039 1200 SOUTHWEST FREEWAY, STE. 3300, HOUSTON, TX 77027 111 SOLEDAD ST., STE. 300, SAN ANTONIO, TX 78205 1201 PEACHTREE STREET, STE. 1717, ATLANTA, GA 30381 101 CARLSON PKWY., STE. 303, MINNETONKA. MN 55305 1843 S. ULSTER ST., STE. 920, DENVER, CO 80237 +355 TOWN CENTER ROAD, STE. 1002, BOCA RATON, FL 33486 LAW OFFICES WOLPOFF & ABRAMSON, L.L.P. Attomeys in the Practice of Debt Collection (A National Collection Attorney Network Firm) 4660 TRINDLE ROAD SUITE 300 CAMP HILL, PA 17011 717-303-6700 OUTSIDE THE CAMP HILL LOCAL AREA (TOLL FREE) 1-800-758-0675 FACSIMILE 717-737-9051 PLEASE DIRECT ALL INQUIRIES TO THE CAMP HILL OFFICE March 5, 2008 Mr. Fred Brillhart 152 Lancaster Blvd MechP,nlcsburg, Pa 17055 RE: MBNA AMERICA BANK, N.A. FRED BRILLHART DOCKET #: 06-4289 Cumberland County C.C.P. W&A #: 135831858 Dear Mr. Brillhart: _NAT_I_O? C ACTION ATTORNEY NETWORK AFFIDA RM LO1 NHSbf 1t?IG Nel OFFICES F WOLPOFF & ABRAM N LL P 1 ` BIRMINGHAM, ALABAMA FARGO, NORTH DAKOTA ANCHORAGE, ALASKA CLEVELAND, OHIO PHOENIX, ARIZONA OKLAHOMA CITY, OKLAHOMA LITTLE ROCK, ARKANSAS EUGENE, OREGON EAST HARFORD, CONNECTICUT PROVIDENCE, RHODE ISLAND HONOLULU, HAWAII COLUMBIA, SOUTH CAROLINA BOISE, IDAHO KNOXVILLE, TENNESSEE CHICAGO, ILLINOIS SANDY, UTAH MERRILLVILLE, INDIANA MILWAUKEE, WISCONSIN KANSAS CITY, KANSAS RAWLINS, WYOMING LEXINGTON, KENTUCKY SEATTLE, WASHINGTON METAIRIE, LOUISIANA WORCESTER, MAssACHUSEITS ST. LOUIS, MISSOURI GREAT FALLS, MONTANA OMAHA, NEBRASKA • The National Collection LAS VEGAS, NEVADA Attorney Network Is an MANCHESTER, NEW HAMPSHIRE affiliation of separate law firms CEDAR KNOLLS, NEW JERSEY RALEIGH. NORTH CAROLINA WBA Hours or Operatfan B &.M.-a P.M. ET M-F DAVID R. GALLOWAY, ESQUIRE As you know, the undersigned represents Plaintiff in the above matter. We write to respond to the 237.1 Notice you served on our client on our about March 1, 2008. In the event you no longer have a copy of our Reply to New Matter previously filed with the Court, we enclose an additional copy for your review. If you believe the 237.1 notice applies to something other than your New Matter, please immediately contact us. I can be reached at (717) 303-6751. Additionally, if you are interested in resolving this matter without further litigation, please feel free to contact me at 717-303-6751. Very truly yours, WOLPOFF & Al David DRG/czf RAMSON, LLP THIS IS AN ATTEMPT BY A DEBT COLLECTOR TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. ? "? ?.? .?. p i'z'ti ?.7 , 7, # _- .:., .. ,? ? i t? - ?? .w..- ` ? VAR 16 2008 r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MBNA AMERICA BANK, N.A., No. 06-4289 CIVIL TERM Plaintiff VS. FRED BRILLHART, CIVIL ACTION - LAW Defendant ORDER ?? ll AND NOW, this 1% day of h Q.X C,1A , 2008, upon consideration of the within Petition to Open Default Judgment and Judgment of Non Pros, it is hereby ORDERED that the both the Default Judgment and the Judgment of Non Prosentered against Plaintiff/Petitioner in this matter on March 13, 2008, be opened, and Plaintiff/Petitioner is allowed to pursue its cause of action against Defendant/Respondent at the April 3, 2008 Arbitration. BY THE COURT: ?rd?? • r c? 1? wy; --no /_ z . I I 141V I £ NVW RON IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW MBNA AMERICA BANK, N.A. Plaintiff, No. 06-4289-CIVIL TERM VS. FRED BRILLHART 152 LANCASTER BLVD. MECHANICSBURG,PA. 17055-3550 Defendant APPLICATION FOR STAY Pa.R.C.P. 3138 EMERGENCY PETITION FOR APPLICATION FOR STAY. PURSUANT TO: Pa. R.C.P. 3183 And Now comes, Defendant Fred Brillhart, who, having petitioned this Honorable Court with Rule to Show Cause, pursuant to Pa.R.C.P. 206.6 as to why defendant should not be granted relief; now Petitions this Court for an Emergency Application for Stay of Arbitration proceedings until such time it may be justly and properly determined whether petitioner is entitled to the relief as requested. Defendant Petitions this Court by Emergency, as Defendant now believes his substantive and procedural due process rights will irrevocably erode, by this Court not complying Pa. Rules of Civil Procedure 208.3(b), Defendant was denied his twenty days in order to file Defendant's responds and should this Court in the instant matter, fail to revisit the issues in their entirety, coupled to the meritorious issues anew, now afore this Court. Defendant, who is unskilled in law, and must proceed for the time being, without counsel, humbly prays upon the Court to properly frame the issues for Defendant Brillhart as determined in Haines v Kerner 404 US 519 520, 30 L. ED. 2d 652, 92 S. Ct. 594 in rendering decision on Defendants petition(s). In furtherance of Defendant Fred Brillhart's Emergency Petition for Application for Stay, pursuant to Pa. R.C.P 1019(g), and/or by any other rule this Court may deem otherwise applicable, Defendant Fred Brillhart, hereby incorporates, all pleadings heretofore in the above-captioned matter in their entirety, in addition to: Petition for Rule to Show Cause; as if all were set forth, at length, herein. Defendant Brillhart now says: 1. On or about July 19, 2006 Plaintiff filed a Complaint in Civil Action against Defendant. ( 1) 2. In paragraph 3 of Plaintiff's Complaint, it states in pertinent part, that: " It is averred that Defendant was issued an open-end credit card account by Plaintiff. This account was created through a written contract between Plaintiff and Defendant, accepted by Defendant when he signed and utilized the credit card account. A true and correct copy of the Credit Card Agreement governing this account is attached as Exhibit "A ". Pursuant to Title 13 P.C.S. §3401(a) which reads in pertinent part, "A person is not liable on an instrument unless: (1) the person signed the instrument; or (2) the person is represented by an agent or representative who signed the instrument and the signature is binding on the represented person under section 3402 (relating to signature of a representative). " 3. Plaintiff has continually failed to produce any written and signed agreement, between Plaintiff and Defendant Brillhart, that would allow Plaintiff to state a claim for which relief can be granted. 4. Insomuch as Plaintiff is wanton to bind a generic agreement to anyone, no one can be bound. Without a signed contract bearing the Defendant's signature, there is no contract, contract does specifically reference any account number and lacks sufficient space for any signature to be affixed or dated so therefore this alleged agreement does not comply with the Pa. Rules of Evidence 902(11) nor 12 and should be considered as hearsay evidence and Plaintiff lacks standing and this Court lacks subject matter jurisdiction to hear this case. 5. On or about September 7, 2006 Defendant Brillhart filed Preliminary Objections thereto. 6. On or about September 11, 2006 Plaintiff filed response to Defendant's Preliminary Objections. Attached thereto, is a verification almost identical in nature as that which is attached to Plaintiff s original complaint. This new verification does not comply with proper verification as referenced in Defendants Motion. 7. On or about May 18, 2007 This Court ruled that Plaintiff's "verification to the complaint is defective"; and ordered Plaintiff, "shall be given 30 days from the date of this order to amend defective verif cation". I -- iiii?¦itj 8. In so ruling, this Court overlooked Plaintiff having blatantly filed with disregard for this Court's Order, virtually the same defective verification as attached to Plaintiff's Response to Defendant's Preliminary Objections. 9. At a minimum, this Court in retrospect, should have given no weight and/or consideration to Plaintiff's Response, until such time Plaintiff was forced to amend yet another defective verification. 10. On or about May 30, 2007 Plaintiff by Praecipe entered a Substitute Verification. 11. Despite the Order of this Court, Plaintiff's counsel submitted yet another defective verification. Mr. Winzerger, an alleged employee of MBNA America Bank, merely signed said verification, admitting to & relying upon Mr. Galloway, Plaintiff's counsel, as the actual preparer of the document Mr. Winzerger signed. 12. This Verification is defective in that: a. It does not state the source or indicate what information (other than what counsel gave to affiant) Mr. Winzerger was in actual possession to review. b. It does not state that the affiant has any first hand knowledge. c. It does not confer upon counsel the authority to write the verification. d. The verification by the affiant, fails to establish an adequate evidentiary basis for an alleged statement of accounts as well as the alleged, unsigned, generic, undated agreement that would otherwise support the purported account,. e. Affiant does not properly or adequately identify himself as to what, if any function he performs at, or for MBNA America Bank, nor to what, if any documents he relies upon outside of what counsel gave him. f. Affiant never claims that the alleged defendant has ever entered into any agreement with Plaintiff; never establishes or claims any indebtedness by defendant; relying upon Plaintiff's counsel for unsubstantiated or authenticated documentation. g. Under the guise of a purported employee of Plaintiff, counsel has once again filed a verification that counsel itself fully prepared, and executed in virtually all asp"ts except for counsels signature. 13. On or about June 29, 2007 Defendant filed answer to Plaintiff's Complaint with New Matter. 14. On or about July 9, 2007 Defendant filed First Amended Answer, and New Matter, with Notice to plead. 15. On or about July 30, 2007 Plaintiff filed a non-response to Defendant's First Amended Answer and New Matter. 16. In filing Plaintiffs Reply to Defendant's First Amended Answer to Complaint, and New Matter, Plaintiff fails to respond in their pleading as required by Pa. R.C.P. 1029, and as such, Plaintiff's Response must be deemed admitted. 17. Despite having been previously advised by this Court's order, dated May 18, 2006, Plaintiff once more attaches a defective verification almost identical in content to that which this Court chastised Plaintiff for doing. 18. Moreover, said verification does not attest to Plaintiff's Reply, but rather, refers to "Preliminary Objections" (Ar?B!I??i? 19. The certificate of service attached with this defective verification is equally defective, as it does not refer to any Plaintiff Reply to Defendants New Matter, but rather, refers specifically to "Preliminary Objections". ,-- 2 0. Defendant Brillhart is now being forced into compulsory arbitration based upon an unsigned contract that fails to bind Defendant to anything. 2 1. The Judge signed Plaintiff's Petition to "Open Default Judgment and Judgment of Non Pros", on March 31 ", 2008 thus violating Defendant's Equal Protection and Due Process Clauses of the Fourteenth Amendment by denying Defendant's right to respond as required under Pa. R.C.P. 208.3(b). 22. The forced arbitration is in violation of Defendants 5'', 7 h, and 10 amendment constitutional rights. 23. Whereas, a state may provide more protection to its citizens, regardless of statute or law promulgated by that state to the contrary, under the Supremacy clause, it cannot provide less protection than what is guaranteed by the U.S. Constitution. Wherefore, Defendant now prays upon this Court to grant this Petition to Stay arbitration proceedings until such time as these matters may be fully and properly determined. Respectfully submitted, Fred Brillhartlpro se 152 Lancaster Blvd. Mechanicaburg, Pa. 17055-3550 (717) 766-1332 4 - -3 -oe o-, '?. --1 ,?? E ?, ' '... ?f ? __. ? ... r ...t..,1 .- ,. APR 0 3 ffik^ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MBNA AMERICA BANK, N.A. ) C/O WOLPOFF & ABRAMSON, L.L.P. ) DAVID R. GALLOW^ ESQUIRE 4660 TRINDLE ROAD, 3rd FLOOR ) CAMP HILL, PA 17011 ) PLAINTIFF ) v. FRED BRILLHART 152 LANCASTER BLVD MECHANICSBURG, PA 117055 Case No. 06-4289 CIVIAL ACTION - LAW Rule to Show Cause DEFENDANT ORDER AND NOW, this day of lot;* L.,2008,upoi-icoiisideratic)iioftiieforegc)iiig petition, it is hereby ordered and decreed that ri-1. C. ??? t s f N 4 the relief requested; (c7.) the Msponden.t shall file an ' yr to the petition withili ent? k-n? uµy v vi r upon the respondent- (3) the pets ' n shall be decided under Pa.R.C.P. 206.7; epositions shall be completed within days of this date; (5) a hearing shall be held on , 2008 in Courtroom of the Cumberland County Courthouse at a.m./p.m.; BY THE COURT: a. I . ? ? ..t ? ,_ tom. ?=?i°i ? ?,^, ? ,-? ,.? t ? .w? .i F \ _ / q 1? < U„nr ?` { ?..,. 7:3 --c:' fir., ?: f\ a ?? ? ?. k? h I YA Plaintiff K UL 1-( 4KT Defendant Law Firm We do solemnly swear (or affirm) that we will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that we will discharge the duties of our office with fidelity. FY"- Signature?' Si. ature Q Signature J0 oiu /Y ` Name (Chairman) Name Name Law Firm ' M?RI?E i sQ ?i w Address C5(Vje4- City, Zip 3900 Address ('loss, Ivy ( 1701( City, zip In The Court of Common Pleas of Cumberland County, Pennsylvania No. W - LJo1 Civil Action - Law. Oath Law Firm ?? S? V 4v-1 Address CAL'v'L #k 110) 3 City, zip 1b8?? ' 1T7i9 Ir7s3 Award We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following award: (Note: If damaggs for delay are awarded, they shall be separately stated.) . Arbitrator, dissents. (Insert name if applicable.) Date of Hearing:?? Q C? Date of Award: od (Chairman) Notice of Entry of Award Now, the " day of r'i 1 20 0$_, at 3:11 , _.M., the above award was entered upon the docket and notice thereof given by mail to the parties or their attorneys. Arbitrators' compensation to be paid upon appeal: $ WO DO By: Prothonotary Deputy 00,6 7onilyn M• y ? ried ,?rq?o8 f. " Icy m r 89 1 V- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA A A A ?r,?,? N.A- Plaintiff Vs File No. 06 - 4 ZV' Civil Term Defendant NOTICE OF APPEAL FROM AWARD OF BOARD OF ARBITRATORS TO THE PROTHONOTARY: Notice pis given that PL-AtAtnF4"' appeals from the award of the board of arbitrators entered in this case on /pry, 3 ZL??g A jury trial is demanded (Check the line if a jury trial is demanded. Otherwise jury trial is waived.) I hereby certify that (1) the compensation of the arbitrators has been paid, or (2) application has been made for permission to proceed in forma pauperi s. (Strike out the inapplicable clause.) Appellant or Attornky of Appellant Note: The demand for jury trial on appeal from compulsory arbitration is governed by Rule 1007.1(b). (b) No affidavit or verification is required. Adopted March 16, 1981, effective May 15, 1981. f IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MBNA AMERICA BANK, N.A. Plaintiff : No. 06-4289 civil term VS FRED BRILLHART : CIVIL ACTION - LAW Defendant(s) CERTIFICATE OF SERVICE The undersigned does hereby certify that a true and correct copy of the Notice to Appeal was served upon the individual(s) listed below by Regular Mail, Postage Pre- Paid on this of April, 2008. FRED BRILLHART 152 LANCASTER BLVD UANICSBURG, PA 170553550 Amy F. Doyle #87062 / aniel F. Wolfson #20617_ Philip C. Warholic #863 avid R. lloway #87326_ Tonilyn M. Chippie #8785 Sarah E. Ehasz #86469 Robert N. Polas, Jr. #201259 WOLPOFF & ABRAMSON, L.L.P. Attorneys in the Practice of Debt Collection 4660 Trindle Road, Suite 300 Camp Hill, PA 17011 Telephone: (717) 303-6700 Counsel for Plaintiff W&A File No. 135831858 00 w 00 D D PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: ? for JURY trial at the next term of civil court. [for trial without a jury. CAPTION OF CASE (entire caption must be stated in full) ?60 0 0 r? vt o c,ck- Picu-" L , ti? . ,k . (other) VS. F ,to br 11 Ka(4- vs. (Plaintiff) (Defendant) The trial list will be called on and r? c Trials commence on Pretrials will be held on f?\UkLVt , (Briefs are due 5 days before pretrials No. Term Indicate the attorney who will try case for the party who files this praecipe: Indicate trial counsel for other parties if known: This case is ready for trial. Signed: (check one) E]?evil Action - Law [v?Appeal from arbitration D Date: ?" 01 / Print Name: 11(l,?) '? I? ?1 :`1 a-, Attorney for: ?? i U IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MBNA AMERICA BANK, N.A., No. 06-4289 CIVIL TERM Plaintiff VS CIVIL ACTION - LAW FRED BRILLHART, Defendants(s), CERTIFICATE OF SERVICE The undersigned does hereby certify that a copy of the foregoing praecipe was served this date by Regular Mail, Postage Pre-Paid on this l? day of ?l tin , 2006. FRED BRILLHART 152 LANCASTER BLVD ;CHANI?:4URG, PA 17055 C. Warholic #86341 / ?=aid R. Gall arah E. Ehasz #86469 rt N. Polas,, Jr. #201259 Mann Bracken LLC The Successor by Merger to Wolpoff & Abramson, L.L.P. and Eskanos & Adler, P.C. 4660 Trindle Road, Suite 300, Camp Hill, PA 17011 Telephone: (717) 303-6700 Counsel for Plaintiff rv ??? ? .`? - ? ? C?.. G:.? rt r-t --d ? S " .b .? cG= 1. or ? ??qq ? i L/ ? ?; . .1 ... _?, ?H? (:,i .. MBNA AMERICA BANK, N.A., IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. FRED BRILLHART, DEFENDANT 06-4289 CIVIL TERM ORDER OF COURT AND NOW, this -70 day of March, 2009, IT IS 011DERED that a non jury trial shall commence at 8:45 a.m., Thursday, April 30, 2009, in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania. By the ZDavid R. Galloway, Esquire For Plaintiff ?Fred Brillhart, Pro se 152 Lancaster Blvd. Mechanicsburg, PA 17055 :sal co f I es /nzi.tl4cl? 3?so?d? Edgar B. 9 :01 l4v aC 8vw 69oz ' 3HLL :1 IN THE COURT OF COMMON PLEAS OFCUMBERLAND COUNTY, PENNSYLVANIA MBNA AMERICA BANK, N.A. ) PLAINTIFF ) V. ) FRED BRILLHART ) DEFENDANT ) Case No. 2006-4289 CIVIL ACTION - LAW DEFENDANT'S OBJECTION TO SCHEDULED TRIAL DATE Comes Now, Fred Brillhart and files Defendant's Objection to Scheduled Trial Date and further states as follows: 1. Defendant states that on/or about April 9, 2008, Defendant won his case against MBNA, Mann Bracken, LLP formerly known as (Wolpoff & Abramson) based upon no Plaintiff and lack of sufficient admissible evidence. 2. Defendant hereby states that this present case has been idle for over one years and based upon the amount of time lapsed, Defendant needs additional time to seek discovery and/or to obtain a more precise understanding of the allegations. 3. Defendant further states that Defendant has not scheduled any discovery, deposition, nor has Defendant been supplied with any Disclosure 3 Statement informing Defendant of any expert and/or lay witnesses and a certified statement of their testimony thus denying Defendant to properly prepare his case. Defendant hereby demands that the Plaintiff provide to the Defendant; a. the original executed contract; b. the original executed application; C. the list of their expert witnesses and their business address; d. the list of their lay witnesses and their business address; e. a statement from each and every witness expected to testify in this matter; f. a certified copy of each and every exhibit that the Plaintiff is planning on using in Court; g. the Plaintiff is expected to only use admissible evidence in strict compliance with the Pa. Rules of Evidence. 4. Defendant request that this Court strike this case from the trial list. 5. Plaintiff is deceptive in their filing their "Certificate of Readiness" and/or requesting a trial date when they are intentionally denying due process to the Defendant in order too properly defend against charges that Defendant does not understand and the pertinent information is being deceptively being withheld. 6. If this Court denies Defendant's request, the Defendant will suffer irreparable damages, including due process violations and will be 4 detrimental to Defendant when the Plaintiff have had over have suffered nothing, after-all they delayed this case for over 12 months. 7. Defendant will serve the Plaintiff within the next several days' discovery and "Motion to Compel Plaintiff to Identify Expert witness pursuant to Pa. R.C.P. 4003.5(a)(1). WHEREFORE, Defendant demands that Plaintiff identifies any admissible evidence pursuant to PA. Rules of Evidence §901, §902, § 1002, §803(6), Title 42 §6108 and sets forth any facts and evidence that supports their allegations and supply Defendant with all business address that identify any witnesses, including both lay and expert witness, whom he intends to call at trial in support of their allegations at trial. If this case were to proceed with Trial Defendant would be unable to prepare a defense and would be denied his due process rights and this would be a real travesty upon this court and Defendant's rights and this court must postpone this event in the name of justice and the law and force Plaintiff to comply with discovery. Defendant hereby states that it is abundantly clear that this case is not ready for trail. Fred Brillhart 5 • .. IN THE COURT OF COMMON PLEAS OFCUMBERLAND COUNTY, PENNSYLVANIA MBNA AMERICA BANK, N.A. ) PLAINTIFF ) V. ) FRED BRILLHART ) DEFENDANT ) Case No. 2006-4289 CIVIL ACTION - LAW DEFENDANT'S OBJECTION TO SCHEDULED TRIAL DATE CERITIFICATE OF SERVICE Now Comes the Defendant, Fred Brillhart and states that the above referenced document has been mailed to the address listed below my U.S. Certified Mail Receipt Number 7005-1820-0000-5957-4915 on/or about April 14, 2009. Mann Bracken LLP 4669 Trindle Road, Suite 300 Camp Hill, Pa. 17011 Fred Brillhart 6 RLEG-OFF{CI: OF THE PF)OTH"C'NOTAN 2009 APP 14 PH 4: 12 MBNA AMERICA BANK, N.A., IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. FRED BRILLHART, DEFENDANT 06-4289 CIVIL TERM ORDER OF COURT AND NOW, this LI day of April, 2009, the motion of defendant to continue the scheduled trial date on April 30, 2009, IS DENIED. avid R. Galloway, Esquire For P intiff red Brillhart, Pro se 152 Lancaster Blvd. Mechanicsburg, PA 17055 :sal The case was just litigated before a Board of Arbitrators. There is no basis to continue a de novo trial which was scheduled following an appeal by plaintiff. t ^/F lL rrt^d... j __ cr% t 4 MBNA AMERICA BANK, N.A., PLAINTIFF V. FRED BRILLHART, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 06-4289 CIVIL TERM GENERAL FINDINGS AND VERDICT Following a bench trial conducted this date these general findings and verdict are entered pursuant to Pa. Rule of Civil Procedure 1038 (1) Defendant, Fred Brillhart, opened a credit card account with plaintiff, MBNA America Bank, N.A. for which he received his first billing statement with a closing date on March 11, 2003. (2) Defendant continued to use the account which was closed as of January 11, 2005. (3) On January 11, 2005, the balance due and owing was $5,947.44. (4) Defendant has not made any further payments on the account. (5) Plaintiff is entitled to recover $5,947.44 plus legal interest from January 11, 2005. VERDICT AND NOW, this day of April, 2009, plaintiff, MBNA America Bank, N.A., is awarded $5,947.44 plus pre judgment interest at six percent per annum from January 11, 2005 to date totaling $1,534.22, against defendant, Fred Brillhart. By Edgar B. Bailey, tIJ Y, . O 23 C7 3 C . David R. Galloway, Esquire For Plaintiff red Brillhart, Pro se 152 Lancaster Blvd. Mechanicsburg, PA 17055-3550 :sal cop , 'SS ,-n V! y?3%? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MBNA AMERICA BANK, N.A. ) C/O WOLPOFF & ABRAMSON, L.L.P. ) DAVID R. GALLOWAY, ESQUIRE ) 4660 TRINDLE ROAD, 3'd FLOOR ) CAMP HILL, PA 17011 ) PLAINTIFF ) Case No. 064289 V. FRED BRILLHART 152 LANCASTER BLVD MECHANICSBURG, PA 17055 CIVI L ACTION -LAW Reconsideration DEFENDANT Defendant Fred Brillhart comes now and files his Motion for Reconsideration in the above captioned matter for this Court has violated his due-process by denying him a continuance thus denying Defendant sufficient time to properly prepare for a fair and honest trial. The Plaintiff gave Defendant no disclosure statement. 1. This case was assigned to Wolpoff & Abramson on January 27, 2005. 2. The alleged credit card account was 4264280999439129. 3. On or about July of 2006 Wolpoff & Abramson file a complaint against the Defendant. 4. Defendant files PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT alleging improper verification. (signed by Plaintiff s Counsel) 5. On May 15.2007 defendant files a brief in support of defendant's preliminary objections to plaintiff's complaint. 6. A hearing on the preliminary objections takes place before judges Oler, Guido and Ebert and Ebert signs a court order giving plaintiff 30 days to amend the defective verification. 7. May 30,2007 plaintiff files a PRAECIPE TO SUBSTITUTE VERIFICATION attempting to use another defective verification signed by Robert Winzinger, but Winzinger clearly stated in the new substituted verification that the new verification was written by Plaintiff's Counsel. 8. In the Plaintiffs Complaint they allege that a copy of the contract is attached but upon a closer examination of the Complaint the contract is not attached. 9. The Plaintiff claims the application was attached but upon a closer examination of the Complaint the application is missing. 10. On/or about March 13, 2008, Defendant files Praecipe for Judgment on non-Pros and Praecipe for entry of Judgment for Failure to Plead which were granted by Curtis Long, Prothonotary of Cumberland County. 11. On/or about March 19, 2008 plaintiff files a PETION TO OPEN DEFAULT JUDGMENT AND JUDGMENT OF NON PROS. 2 12. Defendant is denied a formal hearing by the court when Judge Ebert rules on/or about March 31, 2008 that the judgments be opened without allowing the Defendant to submit or even given a chance for response. 13. Defendant is hereby denied his Due Process Rights for the first time. 14. March 31, 2008 Judge Ebert rules that both judgments be opened, and plaintiff/petitioner is allowed to pursue its cause of action against defendant/respondent at the April 3, 2008 (Arbitration Hearing ). 15. On/or about April 3, 2008 Arbitrators, Eakin, Papoutis & Otto rule unanimously in favor of defendant. 16. Plaintiff appeals the Arbitrator's ruling within the thirty days as required by law. 17. Plaintiff schedules trial on/or about December 18, 2008 a PRAECIPE FOR LISTING CASE FOR TRIAL, sighed by one, David R. Galloway. 18. On/or about March 309 2008, Judge Bayley schedules trial on April 30, 2009. 19. April 14, 2009 Defendant files objection to scheduled trial date & asks for a continuance based upon the Plaintiff never sent Plaintiff s disclosure statement thus denying Defendant proper preparation for the trial. 3 20. Defendant raised in his Objection to Readiness that he has not had sufficient time in order to prepare discovery and that the Plaintiff has refused to submit any list of exhibits, expert witnesses, lay witnesses and a list of exhibits to allow sufficient preparation for Defendant's case. 21. On/or about April 17, 2009 Judge Bayley denies defendant's motion and states, "This case was just litigated before a Board of Arbitrators. There is no basis to continue a de novo trial which was scheduled following an appeal by plaintiff." 22. Defendant was misled by Judge Bayley because the Defendant understood Judge Bayley's words to mean that this would not be a de novo trial. The Plaintiff never did supply the Defendant with any disclosure statement concerning the new trial, dated April 30, 2009 thus denying the Defendant his due process rights, for the Defendant had no ideal of the evidence that the Plaintiff was planning on using at this de novo trial. 23. The Plaintiff s Counsel called Mr. Pyle, an employee of Bank of America ( FIA Card Services ), with one year experience with which he called the legal recovery team to the stand to give testimony in the case. Mr. Pyle would then state that he had worked in the fraud department before that. Mr. Pyle was never an overseer of the 4 accounting department therefore his claim as a custodian of the records is a total fabrication. 24. From line 22 page 15 of the transcript, The Court: It is not for him to explain anything. He is here as a fact witness. You are asking him a legal question. Next question. 25. If Mr. Pyle was in the court room only as a fact witness as Judge Bayley states then there was no plaintiff in the court room and the hearing should have been stopped and the court should have ruled in favor of the Defendant because plaintiffs couns;l had no standing in the court room without a plaintiff present. 26. The Defendant Mr. Brillhart asked (whom the Judge earlier called "the fact witness"), "Have we ever met before", Mr. Pyle answered, "No, I have not." 27. Mr. Brillhart's due process rights were once again violated by the Court in the next exchange, "And were you there when this alleged contract was supposedly signed?", Mr. Pyle, "When your account was opened?, Mr. Brillhart, "When the alleged contract --, the Court: "Of course he wasn't. Come on. Ask a reasonable question. The man is a follow-up guy. Next question." The President Judge should know better than to answer questions 5 for the Plaintiff s fact witness thus protecting the fact witness by intimidating the pro-se litigate, Mr. Brillhart. 28. Mr. Brillhart asks another question to Mr. Pyle, "And you did not have firsthand knowledge of my application? Mr. Pyle, "I did not have firsthand knowledge of your application'. 29. Mr. Brillhart asks another question of Mr. Pyle, "Have you brought any documentation here that proves that any of the statement accounts were mailed to me?" Mr. Pyle states, "Other that the statements we have here as far as? Mr. Brillhart asks, But the statements themselves in your opinion does not prove---interrupted by the Judge once again. 30. The Court: Wait. You are asking him a legal question. They don't send mail credit card statements out by certified mail. Next question. The Court once again limited the Defendant rights to a proper cross-examination and therefore ruined the defense from obtaining pertinent information that would have proven that the so-called fact witness could not prove a person, place, thing and/or event for Mr. Pyle had no admissible evidence that complied with the Pa. Rules of Evidence 901, 902, 1002, 1003, 803(6) and Title 42 §6108. 31. Mr. Brillhart, "Have you brought the original contracts to this Court? Mr. Pyle, The original terms and conditions for this account? 6 Mr. Brillhart, The original contracts. My original contract where my signature would be on there, anything that is of the original contract? Mr. Pyle, We brought a photocopy of the original terms and conditions that were mailed to you. Mr. Brillhart, And did you bring the original signed application to this Court? Mr. Pyle, There is no signed application on this account. It was done either over the phone or via the internet, and we did bring a photocopy of the application. This proves that the judge erred when the Court allowed Mr. Pyle to continue as a material fact witness without any verifiable evidence. 32. Defendant's rights were once again violated by Judge Bayley by allowing inadmissible evidence into evidence that Defendant properly objected to using the Pa. Rules of Evidence 901, 902, 1002, 103 (mistaken for 1003) for the Judge allowed copies of statement of accounts to be admitted that were clearly a forgery for the preparer of the statement of accounts was 618 Inc., A NYC research group that researches the hard-to-find, yet essential data to fine tune your campaign according to their web site. The Judge completely ignored Defendant's objection and steamed rolled over the objection as if it was never given. 7 Please read the Court Transcript on page 7 and 8 from line 1 through line 8 on page 8. 33. Mr. Brillhart hereby states that the Defendant was intimidated because of the unfair nature of the Judge and it was very apart that he not only decided this case but he greatly assisted the Plaintiff by answering questions for the fact witness, Mr. Pyle and limited the line of questioning allowed by Mr. Brillhart giving the plaintiff an unfair advantage. 34. Mr. Brillhart was denied his disclosure statement thus denying Brillhart his due process rights by the Judge denying Defendant's Motion for an Enlargement of Time before Trial. 35. Mr. Pyle had no real requisite knowledge, admitted that the Plaintiff did not sign contract or application. Statement of accounts with the Name of 618 Inc., instead of MBNA Bank were admitted into evidence. WHEREFORE, Defendant hereby demands that this Court admit it had erred and grant the Defendant's Motion of Reconsideration and that Judge Bayley Rescues himself and allows another Judge to properly try this case in the name of justice and law. Fred Brillhart, Defendant S_12. zvoR CERTIFICATE OF SERVICE The Defendant hereby states that on May 12, 2009 that a copy of the above referenced document was mailed by U.S. Postal Service pre-paid mail to the following address listed below. Mann Bracken, LLP 4660 Trindle Road Suite 300 Camp Hill, Pa. 17011 Fred Brillhart Date 9 FILE "."'ll: OF THE 2 069 MAY 12 F? °, E2'. MBNA FRED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BANK, N.A. Plaintiff No. 06-4289 CIVIL ACTION - LAW T, Defendant PLAINTIFF'S REPLY TO DEFENDANT'S MOTION FOR RECONSIDERATION its at V to which rights AND NOW, comes Defendant MBNA AMERICA BANK, N.A., by and through eys MANN BRACKEN, L.L.P., and replies to Defendant's Motion for i eration as follows: 1. Denied. To the contrary, Wolpoff & Abramson, LLP, was a law firm that n s Plaintiff. At no time was this debt ever assigned or transferred to Wolpoff & 36n, LLP. Plaintiff admits that this is the account number it assigned to the Account off. Prior to chargeoff, the Account number was XXXX XXXX XXXX 5180. Admitted. It is admitted that Wolpoff & Abramson, LLP, filed a tint in July, 2006, on behalf of Plaintiff against Defendant. -6. Admitted. It is admitted that Counsel for Plaintiff filed a Praceipe to Substitute i ion on or about May 30, 2007. All remaining allegations are conclusions of law no response is necessary. -9. The allegations contained in these Paragraphs refer to a written document eaks for itself. 10- 11. Admitted. 12-13. The allegations contained herein are conclusions of law to which no e is necessary. To the extent a response is necessary, Defendant's constitutional I te not violated. 1 -21. Admitted. 135831858 22. The allegation contained herein is a conclusion of law to which no respons is necessary. To the extent a response is necessary, Defendant's constitutional rights were not violated. -26. The allegations contained in these Paragraphs refer to transcribed which speaks for itself. 7. The allegation contained herein is a conclusion of law to which no response is necessary. To the extent a response is necessary, Defendant's constitutional rights ere not violated. 8-31. The allegations contained in these Paragraphs refer to transcribed y which speaks for itself. 2-34. The allegations contained herein are conclusions of law to which no response is necessary. To the extent a response is necessary, Defendant's constitutional rights were not violated. 5. The allegation contained in this Paragraph refers to transcribed testimony which sbeaks for itself. 3EREFORE, Plaintiff respectfully requests that this Honorable Court deny 's Motion for Reconsideration. Respectfully Submitted, MANN BRACKEN, LLP By K David R. Gall way Attorney I.D. 87326 4660 Trindle d., Ste. 300 Camp Hill, PA 17011 Direct Dial: 800-365-9054 Direct Fax: 240-238-4738 Attorney for Plaintiff 135831858 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MBNA AMERICA BANK, N.A. Plaintiff No. 06-4289 CIVIL ACTION - LAW FRED JRILLHART, Defendant Postag CERTIFICATE OF SERVICE he undersigned does hereby certify that he served a copy of the foregoing s Reply to Defendant's Motion for Reconsideration this date by Regular Mail, 're-Paid, on this 2; , day of 'rn 2"1 , 2009, addressed as follows. MR. FRED BRILLHART 152 LANCASTER BLVD MECHANICSBURG PA 17055 David R. alloway Attorney D No. #87326 Mann Bra ken, LLP Attorneys in the Practice of Debt Collection 4660 Trindle Road, Suite 300 Camp Hill, PA 17011 800-365-9054 Counsel for Plaintiff 135831858 JF THE 2 009 VIAL 2 ? F ! : 3 a IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENN-SYLVANIA MBNA AMERICA BANK, N.A., Plaintiff NO. 06-4289 CIVIL TERM vs. FRED BRILLHART Defendant CIVIL ACTION - LAW PRAECIPE TO CONVERT VERDICT TO JUDGMENT TO THE PROTHONOTARY: Please convert the attached verdict entered for Plaintiff MBNA America Bank, N.A., and against Defendant Fred Brillhart to a Judgment in the amount of $5,947.44, with legal interest from January 11, 2005, plus costs. Respectfully Submitted, MANN BRACKEN, LLP By. - v David R. alloway Attorney D. #87326 4660 Trindle Rd., Suite 300 Camp Hill, PA 17011 (800) 365-9054 135831858 r MBNA AMERICA BANK, N.A., PLAINTIFF V. FRED BRILLHART, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 064289 CIVIL TERM Following a bench trial conducted this date these general findings and verdict are entered pursuant to Pa. Rule of Civil Procedure 1038 (1) Defendant, Fred Brillhart, opened a credit card account with plaint ff, MBNA America Bank, N.A. for which he received his first billing statement with a closing date on March 11, 2003. (2) Defendant continued to use the account which was closed as of January 11, 2005. (3) On January 11, 2005, the balance due and owing was $5,947.44. (4) Defendant has not made any further payments on the account. (5) Plaintiff is entitled to mover $5,947.44 plus legal interest from January 11, 2005. VERDICT AND NOW, this -*90' day of April, 2009, plaintiff, MBNA America Bank, N.A., is awarded $5,947.44 plus pre-judgment interest at six percent per annum from January 11, 2005 to date totaling $1,534.22, against defendant, Fred Brillhart. By . C*l rl ?L_ , ^ y?l Y ^ I ^ - ti. C- cr% G} ? ...7 U .I David R. Galloway, Esquire For Plaintiff ,4red INMart, Pro se 152 Lancaster Blvd. Mechanicsburg, PA 17055-3550 :sal (240? 1'es 4/390/09 X&I . I . ti IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MBNA AMERICA BANK, N.A., Plaintiff VS. FRED BRILLHART Defendant NO. 06-4289 CIVIL TERM CIVIL ACTION - LAW CERTIFICATE OF SERVICE The undersigned does hereby certify that a copy of the foregoing Praecipe to was served this date by Regular Mail, Postage Pre-Paid on this 20 Qq. MR. FRED BRILLHART 152 LANCASTER BLVD MECHANICSBURG, PA 17055 By: 135831858 Respectfully Submitted, MANN BRACKEN, LLP David R. Galloway Attorne I.D. #87326 4660 Tri le Rd., Suite 300 Camp Hill, PA 17011 (800) 365-9054 ?'?? day of OF THE PRO TH TARY 2009 AUG 21 Ply 1: 04 "MM PENNSYLVXJIA 4 W oo Pty Ayw GG' 3(ol a al Ui+? NuuuaoQ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MBNA AMERICA BANK, N. A., Plaintiff vs. FRED BRILLHART, Defendant To the Prothonotary: No. 06-4289 CIVIL TERM CIVIL ACTION - LAW NOTICE OF APPEAL Please be advised that I, Fred Brillhart, Defendant, am planning to file an Appeal to The Superior Court of Pennsylvania, d Q ? r4 ©V\ f 1T' i ) ) 30J ? 009 Date O Zap Fred Brillhart, Defendant 152 Lancaster Blvd. Mechanicsburg, PA 17055 MBNA AMERICA BANK, N.A., PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. FRED BRILLHART, DEFENDANT 06-4289 CIVIL TERM GENERAL FINDINGS AND VERDICT Following a bench trial conducted this date these general findings and verdict are entered pursuant to Pa. Rule of Civil Procedure 1038 (1) Defendant, Fred Brillhart, opened a credit card account with plaintiff, MBNA America Bank, N.A. for which he received his first billing statement with a closing date on March 11, 2003. (2) Defendant continued to use the account which was closed as of January 11, 2005. (3) On January 11, 2005, the balance due and owing was $5,947.44. (4) Defendant has not made any further payments on the account. (5) Plaintiff is entitled to recover $5,947.44 plus legal interest from January 11, 2005. AND NOW, this -20 VERDICT day of April, 2009, plaintiff, MBNA America Bank, N.A., is awarded $5,947.44 plus pre judgment interest at six percent per annum from January 11, 2005 to date totaling $1,534.22, against defendant, Fred Brillhart. By the-C urt, TFRJE COPY FROM RECORIJ f k> ?;t i 4maf,1 S t +,Y N Edgar B. Ba 11262510092009 Cumberland County Prothonotary's Office PYS510 Page 1 Civil Case Print 2006'04289 MBNA AMERICA BANK N A (vs) BRILLHART FRED Reference No..: Case Type.....: COMPLAINT Filed........: 7/27/2006 Time.........: 3:03 Judgment...... 5947.44 Judge Assigned: OLER J WESLEY JR Execution Date 0/00/0000 Disposed Desc : Jury Trial.... . ------------ Case Comments ------------- Disposed Date. Higher Crt 1.: 0/00/0000 Higher Crt 2.: ********************************************************************** General Index ********** Attorney Info MBNA AMERICA BANK N A PLAINTIFF 655 PAPER MILL ROAD SPEARS ANDREW C MAIL STOP 1411 WILMINGTON DE 19884 1411 BRILLHART FRED DEFENDANT 152 LANCASTER BLVD MECHANICSBURG PA 17055 3550 Judgment Index Amount Date Desc MBNA AMERICA BANK N A 3/13/2008 JUDGMENT OF NON PROS MBNA AMERICA BANK N A 3/13/2008 FAILURE TO PLEAD BRILLHART FRED 5,947.44 4/30/2009 VERDICT BRILLHART FRED 5,947.44 8/21/2009 JUDGMENT ON VERDICT ******************************************************************************** * Date Entries ******************************************************************************** 7/27/2006 COMPLAINT - CIVIL ACTION FIRST ENTRY _ _ _ _ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - - -------------- _______________________________ 8/02/2006 SHERIFF'S FILE RETURNED FILED. Case Type: COMPLAINT & NOTICE Ret Type.: Regular Litigant.: BRILLHART FRED Address..: 152 LANCASTER BLVD Ctyy/St/Z • MECHANICSBURG, PA 17055 Hncd To: FRED BRILLHART Shf/Dpty.: VALERIE WEARY Date/ Time: 07/31/2006 1157:00 Costs .... _-$37.19 Pd By: WOLPOFF & ABRAMSON 08/02/2006 ----------------------------------- 9/07/2006 PRELIMINARY OBJECTIONS TO PLFF'S COMPLAINT - BY DEFT PRO-SE ----------------------------------- ---------------- 9/13/2006 PLFF'S RESPONSE TO DEFT'S PRELIMINARY OBJECTIONS - BY ANDREW C SPEARS ATTY FOR PLFF ------------------ ________ ------------------------------------- 4 02/2007 PRAECIPE FOR LISTING CASE FOR ARGUMENT - DEFT'S PRELIMINARY OBJECTIONS - BY DAVID R GALLOWAY ATTY FOR PLFF -------------------------------- ___ 5/21/2007 ORDER OF COURT - 05-18-07 - IN RE: PRELIMINARY OBJECTIONS - BY M L EBERT JR J - COPIES MAILED 05-22-07 ------------------------- _ 5/31/2007 PRAECIPE TO SUBSTITUTE VERIFICATION - COMPLAINT - BY DAVID R GALLOWAY ATTY FOR PLFF ------ _ _ _ _ ______ 6/29/2007 ANSWER TO COMPLAINT AND NEW MATTER - BY DEFT -------------- _ _ _ _ _ _ ----------------- _ _________ 7 09/2007 FIRST AMENDED ANSWER TO COMPLAINT AND NEW MATTER - BY FED BRILLHART DEFT ------------------ _ _ _ _ _ ---------------- 7 31/2007 PLAINTIFF'S REPLY TO DEFENDANTS NEW MATTER - BY TONILYN M CHIPPIE ATTY FOR PLFF ----------------------------------------- 11/19/2007 PETITION FOR APPOINTMENT OF ARBITRATORS - THE CLAIM OF PLFF IN THE ACTION IS $ 7484.32 - BY DAVID R GALLOWAY ATTY FOR PLFF ------------------------------------------------------------------- 12/19/2007 ORDER OF COURT - 12/19/07 - IN RE: APPT OF ARBITRATORS: JOHN M EAKIN ESQ/CHAIRMAN - IVO V OTTO III ESQ & JOHN N PAPOUTSIS ESQ ALSO APPT - COPIES MAILED 12/27/07 -------------------------------------- 11252510092009 Cumberland County Prothonotary's Office Page 2 PYS510 Civil Case Print 2006,-04289 MBNA AMERICA BANK N A (vs) BRILLHART FRED Reference No..: Filed........: 7/27/2006 Case Type.....: COMPLAINT Time.........: 3:03 Judgment...... 5947.44 Execution Date 0/00/0000 Judge Assigned: OLER J WESLEY JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments Higher Crt 1.: Higher Crt 2.: 3/13/2008 PRAECIPE FOR ENTRY OF JUDGMENT OF NON PROS AND JUDGMENT ENTERED BY FRED BRILLHART PRO SE NOTICE MAILED ------------------ ------------------------------------------------- 3/13/2008 CERTIFICATE OF SERVICE BY FRED BRILLHART PRO SE ----------------------------------- -------------------------------- 3 13/2008 PRAECIPE FOR ENTRY OF JUDGMENT FOR FAILURE TO PLEAD AND JUDGMENT ENTERED BY FRED BRILLHART PRO SE ------------------------------------------------------------------- 3/13/2008 NOTICE MAILED ----------------------------------------------------- -------------- 3 24/2008 PETITION TO OPEN DEFAULT JUDGMENT AND JUDGEMENT OF NON PROS - BY TONILYN M CHIPPIE ATTY FOR PLFF -------------------------------- ____ 3/31/2008 ORDER - 3/31/08 IN RE: PETITION TO OPEN DEFAULT JUDGEMENT AND JUDGMENT OF NON PROS - ORDERED THAT THE BOTH THE DEFAULT JUDGEMENT AND JUDGEMENT OF NON PROSENTERD AGAINST PLFF/PETITIONER IN THIS MATTER ON 3/13/08 BE OPENED AND PLFF/PETITIONER IS ALLOWED TO PURSUE ITS CAUSE OF ACTION AGAINST DEFT/RESPONDENT AT THE 4/3/08 ARBITRATION - BY M L EBERT JR J - COPIES MAILED 3/31/08 ------------------------ ------------------------------------------- 4 03/2008 EMERGENCY PETITION FOR APPLICATION FOR STAY PURSUANT TO PA RCP 3183 - BY FRED BRILLHART DEFT ------------------------- _ _ __ 4/03/2008 ORDER - 4/3/08 IN RE: EMERGENCY PETITION FOR APPLICATION FOR STAY PURSUANT TO PA R C P 3183 - PETITION IS DENIED - BY J WESLEY OLER JR J - COPIES MAILED 4/3/08 ------------------------------------ ------------------------------- 4 09/2008 AWARD OF ARBITRATORS - WE FIND IN FAVOR OF DEFT AND AGAINST PLFF AS TO THE ENTIRE CLAIM COPIES MAILED 4/09/08 --------------------------- ____ ----------------------------- 4 23/2008 NOTICE OF APPEAL FROM AWARD OF ARBITRATORS - BY TONILYN CHIPPIE ATTY FOR APPELLANT ------------- _ _ ____ --------------------------------- 12/19/2008 PRAECIPE FOR LISTING CASE FOR TRIAL - DAVID R GALLOWAY ATTY FOR PLFF -------------------------------------------------- 3/30/2009 ORDER-OF-COURT --- - 3/30/09- - -A NONJURY TRIAL - SHALL - COMMENCE - ON - - - - - - - 4/30/09 AT 8:45 AM IN CR2 CUMBERLAND COUNTY COURTHOUSE - BY EDGAR B BAYLEY J - COPIES MAILED 3/30/09 ----------- -------------------------- 4 14/2009 DEFENDANT'S-OBJECTION TO-SCHEDULED-TRIAL DATE - - - BY - DEFT/PRO _ SE ----- ----- 4/17/2009 ORDER-OF-COURT - 4/17/09 IN RE: DEFTS OBJECTION TO SCHEDULED TRIAL DATE - MOTION IS DENIED - BY EDGAR B BAYLEY J - COPIES MAILED 4/17/09 ------------------------------------------------------------------- 4/30/2009 VERDICT - DATED APRIL 30, 2009 - GENERAL FINDINGS AND VERDICT - PLAINTIFF IS AWARDED $5947.44 PLUS PRE-JUDGMENT INTEREST AT SIX PERCENT PER ANNUM FROM JANUARY 11, 2005 TO DATE TOTALING $1534.22 AGAINST DEFENDANT COPIES MAILED BY THE COURT EDGAR B BAYLEY J --------- -- ---------5/11/2009 TRANSCRIPT-OF-PROCEEDINGS---BY-EDGAR-B- BAYLEY J -------------------- ------ -------------- ----------- 5 12/2009 MOTION-FOR-RECONSIDERATION---BY-DEFT - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ----------------------- 5/27/2009 PLAINTIFF'S REPLY TO DEFTS MOTION FOR RECONSIDERATION - BY _ DAVID _ R GALLOWAY ATTY FOR PLFF ------------------------------------------------------------------- 8/21/2009 PRAECIPE TO CONVERT VERDICT TO JUDGEMENT - CONVERT THE ATTACHED VERDICT ENTERED FOR PLFF MBNA AMERICAN BANK N A AND AGAINST DEFT FRED BRILLHART TO A JUDGMENT IN THE AMOUNT OF $5,947,44 WITH LEGAL INTEREST FROM JANUARY 11, 2005 PLUS COSTS DAVID R GALLOWAY ESQ FOR PLFF 1262510092009 PYS510 Cumberland County Prothonotary's Office Pa e 3 g Civil Case Print 200-04289 MBNA AMERICA BANK N A (vs) BRILLHART FRED ' Reference No : .. Case Type.....: COMPLAINT Filed........: 7/27/2006 Ti me.........: 3:03 Judgment...... Judge Assigned: 5947.44 OLER J WESLEY JR Execution Date 0/00/0000 Disposed Desc : Jury Trial.... . ------------ Cas e Comments ----------- -- Disposed Date. 0/00/0000 Hi her C t l _ - - g r .: Higher Crt 2.: - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ***************** * ********************** ***************************************** * Fees & Debits ***************** Escrow Beq Bal *************** ***** Information P ymts/Ad' End Bal * * ** ****** **** *************************** COMPLAINT TAX ON CMPLT 35.00 35.00 .00 SETTLEMENT AUTOMATION .50 5.00 .50 5.00 .00 .00 JCP FEE APPT OF ARBITRA 5.00 10.00 5.00 10.00 .00 .00 JDMT 24.00 24.00 .00 JDMT 14.00 14.00 .00 APPEAL AR13ITRAT PRAECIPE TRIAL 14.00 350.00 14.00 350.00 .00 .00 JDMT 25.00 25.00 .00 14.00 ------------- 14.00 -- .00 496.50 ------- --- 496.50 --------- .00 ***************************************************** * End of Case Information *************************** P. r . . A IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MBNA AMERICA BANK, N. A., Plaintiff vs. FRED BRILLHART, Defendant No. 06-4289 CIVIL TERM CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, Fred Brillhart, Defendant, do hereby certify that I served a copy of the foregoing NOTICE OF APPEAL, upon the Plaintiff, by First Class Mail, Postage Pre-Paid, a copy thereof on this O?+ day of October, 2009, to: Mann Bracken, LLP 4660 Trindie Road Suite 800 Camp Hill, PA 17011 Fred Brillhart, Defendant 152 Lancaster Blvd. Mechanicsburg, PA 17055 (?F FLED-? 1rFIC.E: TppY 2{09 OCT -9 Ph 3: 14' 7 Gt. /-t$ $ mil, a231-71Y Karen Reid Bramblett, Esq. 6uperior Court of 3pennoprbania Prothonotary Middle District Milan K. Mrkobrad, Esq. Deputy Prothonotary October 16, 2009 Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 RE: MBNA America Bank, N.A. V. Fred Brilhart Appellant 1772 MDA 2009 Trial Court Docket No: 06-4289 Dear Mr. Long: Pennsylvania Judicial Center P.O. Box 62435 601 Commonwealth Avenue, Suite 1600 Harrisburg, PA 17106-2435 (717) 772-1294 www.supenor.court.state,pa.us Enclosed please find a copy of the docket for the above appeal that was recently filed in the Superior Court. Kindly review the information on this docket and notify this office in writing if you believe any corrections are required. Appellant's counsel is also being sent a Docketing Statement, pursuant to Pa.R.A.P. 3517, for completion and filing. Please note that Superior Court Dockets are available on the Internet at the Web site address printed at the top of this page. Thank you. Respectfully, Milan K. Mrkobrad, Esq. Deputy Prothonotary /wjt Enclosure 3:29 P.M. Appeal Docket Sheet Docket Number: 1772 MDA 2009 Page 1 of 2 October 16, 2009 MBNA America Bank, N.A. v. Fred Brilhart Appellant Initiating Document: Notice of Appeal Case Status: Active Case Processing Status: October 9, 2009 Journal Number: Case Category: Civil Superior Court of Pennsylvania Secure CAPTION CAST: INFORMATION Awaiting Original Record Case Type(s): Civil Action Law CONSOLIDATED CASES RELATED CASES ` SCHEDULED EVENT Next Event Type: Receive Docketing Statement Next Event Due Date: October 30, 2009 Next Event Type: Original Record Received Next Event Due Date: December 8, 2009 COUNSEL INFORMATION Appellant Brilhart, Fred Pro Se: Yes Appoint Counsel Status: Not Represented IFP Status: No Address: 152 Lancaster Boulevard Mechanicsburg, PA 17055 Phone No: Fax No: Receive Mail: Yes Receive EMail: No EMail Address: Appellee MBNA America Bank, N.A. Pro Se: No Appoint Counsel Status: Represented IFP Status: Attorney: Galloway, David R. Bar No: 087326 Address: 4660 Trindle Rd Ste 300 Camp Hill, PA 17011 Phone No: (800) 365-9054 Fax No: (240) 238-4738 Receive Mail: Yes Receive EMail: No EMail Address: drg@mannbracken.com FEE INFORMATION Date Name Receipt Number Fee Amt Paid Amt 10/14/2009 Notice of Appeal 2009-SPR-M-000894 $ 60.00 $ 60.00 3:29 P.M. Appeal Docket Sheet Superior Court of Pennsylvania Docket Number: 1772 MDA 2009 Page 2 of 2 Secure October 16, 2009 AGENCYITRIAL COURT INFORMATION Court Below: Cumberland County Court of Common Pleas County: Cumberland Division: Cumberland County Civil Division Order Appealed From: April 30, 2009 Judicial District: 09 Documents Received: October 14, 2009 Notice of Appeal Filed: October 09, 2009 Order Type: Order Entered Judge, Title: Bayley, Edgar B., President Judge Lower Court Docket No OTN 06-4289 ORIGINAL RECORD CONTENT Original Record Item Filed Date Content Description Date of Remand of Record: BRIEFING SCHEDULE None None DOCKET ENTRY Filed Date Docket Entry Participant Type Filed By October 9, 2009 Notice of Appeal Docketed Appellant Brilhart, Fred October 16, 2009 Docketing Statement Exited (Civil) Middle District Filing Office f'` ?= rJ Ply 2009 OCT 20 id i 11: 26 CUA,F-.. I t . MBNA AMERICA BANK, N.A., IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. FRED BRILLHART, DEFENDANT 06-4289 CIVIL TERM MEMORANDUM OPINION Bayley, J. October 20, 2009:-- On April 30, 2009, the following general findings and verdict were entered: Following a bench trial conducted this date these general findings and verdict are entered pursuant to Pa. Rule of Civil Procedure 1038 (1) Defendant, Fred Brillhart, opened a credit card account with plaintiff, MBNA America Bank, N.A. for which he received his first billing statement with a closing date on March 11, 2003. (2) Defendant continued to use the account which was closed as of January 11, 2005. (3) On January 11, 2005, the balance due and owing was $5,947.44. (4) Defendant has not made any further payments on the account. (5) Plaintiff is entitled to recover $5,947.44 plus legal interest from January 11, 2005. VERDICT AND NOW, this 30 day of April, 2009, plaintiff, MBNA America Bank, N.A., is awarded $5,947.44 plus pre-judgment interest at six percent per annum from January 11, 2005 to date totaling $1,534.22, against defendant, Fred Brillhart. Defendant, Fred Brillhart, did not file a post-trial motion. Plaintiff, MBNA America Bank, N.A., entered judgment against Brillhart on August 21, 2009 in the amount of $5,947.44 with legal interest from January 11, 2005. On October 9, 2009, Brillhart filed the following "NOTICE OF APPEAL: Please be advised that I, Fred Brillhart, Defendant, am planning to file an Appeal to The Superior Court of Pennsylvania, from the verdict entered on April 30, 2009. Brillhart did not serve this trial judge with the notice. We learned of the appeal on October 20, 2009, upon receiving a Appeal Docket Sheet from the Superior Court of Pennsylvania. The appeal should be dismissed because it is procedurally defective and late. ) za? (Date) .,,David R. Galloway, Esquire 4660 Trindle Road, Suite 300 Camp Hill, PA 17011 For Plaintiff Fred Brillhart, Pro se 152 Lancaster Blvd. Mechanicsburg, PA 17055-3550 :sal i 2 0 9 9 0CT 21 Pill! it ; 31 1 CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: Superior Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: MBNA America Bank, N.A. VS. Fred Brillhart 2006-4289 Civil Term 1772 MDA 2009 The documents comprising the record have been numbered from No.l to 184, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 10/29/2009. Curtis R. Lon o otary Regina Lebo An additional cony of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Date Signature & Title Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county of CuTberland in the Commonwealth of Pennsylvania 1772 MDA 2009 to No. 2006-4989 r•i3r; Term, 19 is contained the following: COPY OF Appearance MBNA AMERICA BANK, N.A. VS. FRED BRILLHART **SEE CERTIFIED COPY OF THE DOCKET ENTRIES** DOCKET ENTRY .r Commonwealth of Pennsylvania County of Cumberland ss: In TESTIMONY WHEREOF, I have hereunto this _ 29th I, Curtis R. Loner Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therein stated, wherein MBNA Am?ri _a Wnk, N. A. Plaintiff, and Fred R-ri 11 hart Defendant , as the same remains of record before the said Court at No. 2006-4289 of civil Term, A.D. 19 . set my hand and affixed the seal of said Court day of October _ A. D.,XR20n- Prothonotary 1, Edgar R Bay1pV President Judge of the Ni nth Judicial District, composed of the County of Cumberland, do certify that nirtia R Long , by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is Prothonotary in and for said County of Cumberland in the Commonwealth of Pennsylvania, duly commissioned and ecli#ied to 11 of whose acts as such full faith and credit are and ought to be given as well in Courts of ju cVure as el her th the said record, certificate and attestation are in due form of law and ma fty thk proper off er. President Judge Commonwealth of Pennsylvania County of Cumberland ss: 1 013 tiss R Long Prothonotary of the Court of Common Pleas in and for the said County, do certify that the Honorable Edgar 8. Bvj"y by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court this 29th day of ober A. D. 392M Prothonotary ro 0 3 w ?e cv a. d -n c o ? 6 -c1 0 b r r d n d n 0 G z Z O O N ? O O O? 1 N a a 3 I PYS511 Cumberland County Prothonotary's Office Page 1 Civil Case Print 2006-04289 MBNA AMERICA BANK N A (vs) BRILLHART FRED Reference No..: Filed......... 7/27/2006 Case Type.....: COMPLAINT Time.........: 3:03 Judgment..... : 5 947.44 Execution Date 0/00/0000 Judge Assigned: OLER. J WEALEY JR Jury Trial.... Disposed Desc.: Disposed Date 0/00/0000 ----------- Case Comments -------- Higher Crt 1.: : 1772MDA2009 Higher Crt 2.: General Index Attorney Info MBNA AMERICA BANK N A PLAINTIFF SPEARS ANDREW C 655 PAPER MILL ROAD MAIL STOP 1411 WILMINGTON DE 19884 1411 BRILLHART FRED DEFENDANT 152 LANCASTER BLVD MECHANICSBURG PA 17055 3550 Judgment Index Amount Date Desc MBNA AMERICA BANK N A MBNA AMERICA BANK N A BRILLHART FRED BRILLHART FRED 3/13/2008 JUDGMENT OF NON PROS 3/13/2008 FAILURE TO PLEAD 5,947.44 8/201%2009 JUDGMENT ON VERDICT ******************************************************************************** * Date Entries ./fp 7/27/2006 `"? 8/02/2006 /?' cv2(,. 9/07/2006 9/13/2006 4/02/2007 5/21/2007 5/31/2007 ,t?lj- Sly 6/29/2007 jrf 7/09/2007 7/31/2007 l0?1- la? 11/19/2007 12/19/2007 - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - COMPLAINT - CIVIL ACTION ------------------------------------------------------------------- SHERIFF'S FILE RETURNED FILED. Case Type: COMPLAINT & NOTICE Ret Type.: Regular Litigant.: BRILLHART FRED Address..: 152 LANCASTER BLVD Cty/St/% MECHANICBURG, PA 17055 Hn To: F Shf/Dppty.: V ERE WEARY xx Costs.. $37.192Pd6By: WOLPOFFO& ABRAMSON 08/02/2006 ------------------------------------------------------------------- PRELIMINARY OBJECTIONS TO PLFF'S COMPLAINT - BY DEFT PRO-SE ------------------------------------------------------------------- PLFF'S RESPONSE TO DEFT'S PRELIMINARY OBJECTIONS - BY ANDREW C SPEARS ATTY FOR PLFF ------------------------------------------------------------------- PRAECIPE FOR LISTING CASE FOR ARGUMENT - DEFT'S PRELIMINARY OBJECTIONS - BY DAVID R GALLOWAY ATTY FOR PLFF ------------------------------------------------------------------- ORDER OF COURT - 05-18-07 - IN RE: PRELIMINARY OBJECTIONS - BY M L EBERT JR J - COPIES MAILED 05-22-07 ------------------------------------------------------------------- PRAECIPE TO SUBSTITUTE VERIFICATION - COMPLAINT - BY DAVID R GALLOWAY ATTY FOR PLFF -------------------------------------------------------------------- ANSWER TO COMPLAINT AND NEW MATTER - BY DEFT ------------------------------------------------------------------- FIRST AMENDED ANSWER TO COMPLAINT AND NEW MATTER - BY FED BRILLHART DEFT ------------------------------------------------------------------- PLAINTIFF'S REPLY TO DEFENDANTS NEW MATTER - BY TONILYN M CHIPPIE ATTY FOR PLFF ------------------------------------------------------------------- PETITION FOR APPOINTMENT OF ARBITRATORS - THE CLAIM OF PLFF IN THE ACTION IS $ 7484.32 - BY DAVID R GALLOWAY ATTY FOR PLFF ------------------------------------------------------------------- ORDER OF COURT - 12/19/07 - IN RE: APPT OF ARBITRATORS: JOHN M EAKIN ESQ/CHCOPIMES - MAILEDIVO ESQ & JOHN N PAPOUTSIS ESQ ------------------------------------------------------------------- PYS511 Cumberland County Prothonotary': Jff ice Civil Case Print 2006-04289 MBNA AMERICA BANK N A (vs) BRILLHART FRED Reference No..: Case Type.....: COMPLAINT Judgment..... 5 947.44 Judge Assigned: OLER J WESLEY JR Disposed Desc.: ------------ Case Comments ------------- ,P6 _ 75/ 3/13/2008 3/13/2008 3/13/2008 3/13/2008 99'/,06 3/24/2008 1 0 3/31/2008 /cry'./1-X4/03/2008 /Q7,-JOB 4/03/2008 4/09/2008 //7-//9?'4/23/2008 //9'-/2012/19/2008 3/30/20.09 1,-?3 -/28' 4/14/2009 / 4/17/2009 4/30/2009 5/11/2009 15?lf 113 5/12/2009 /'/_A0 5/27/2009 8/21/2009 Page Filed......... 7/27/2006 Time. 3.03 I,xecution Date 0/00/0000 Drury Trial.... Disposed Date. 0/00/0000 higher Crt 1.: 1772MDA2009 higher Crt 2.: PRAECIPE FOR ENTRY OF JUDGMENT OF NON PROS: AND JUDGMENT ENTERED BY FRED BRILLHART PRO SE NOTICE MAILED -------------------------------------------------------------------- CERTIFICATE OF SERVICE BY FRED BRILLHART FARO SE -------------------------------------------------------------------- PRAECIPE FOR ENTRY OF JUDGMENT FOR FAILURE TO PLEAD AND JUDGMENT ENTERED BY FRED BRILLHART PRO SE NOTICE MAILED ----------------------------------------------------------- ------------------------------------------------------------------- PETITION TO OPEN DEFAULT JUDGMENT AND JUDGEMENT OF NON PROS - BY TONILYN M CHIPPIE ATTY FOR PLFF ------------------------------------------------------------------- ORDER - 3/31/08 IN RE: PETITION TO OPEN DEFAULT JUDGEMENT AND JUDGMENT OF NON PROS - ORDERED THAT THE BOTH THE DEFAULT JUDGEMENT AND JUDGEMENT OF NON PROSENTERD AGAI?ST PLFF/PETITIONER IN THIS MATTER ON 3/13/08 BE OPENED AND PLFF PETITIONER IS ALLOWED TO PURSUE ITS CAUSE OF ACTION-AGAINST D FT/RESPONDRNT AT THE 4/3/08 ARBITRATION - BY M L EBERT JR J - COPIES MAILED 3/31/08 ------------------------------------------------------------------- EMERGENCY PETITION FOR APPLICATION FOR STAY PURSUANT TO PA RCP 3183 - BY FRED BRILLHART DEFT ------------------------------------------------------------------- ORDER 413/08 IN RE: EMERGENCY PETITION FOR APPLICATION FOR STAY PURSUANT TO PA R C P 3183 - PETITION IS DENIED - BY J WESLEY OLER JR J - COPIES MAILED 4/3/08 ------------------------------------------------------------------- AWARD OF ARBITRATORS - WE FIND IN FAVOR OF DEFT AND AGAINST PLFF AS TO THE ENTRR C IM COPIES MAILED 4 09 08 ------------------------------------------------------------------- NOTICE OF APPEAL FROM AWARD OF ARBITRATORS - BY TONILYN CHIPPIE ATTY FOR APPELLANT ------------------------------------------------------------------- PRAECIPE FOR LISTING CASE FOR TRIAL - DAVID R GALLOWAY ATTY FOR PLFF ------------------------------------------------------------------- O 011? OF COURT- 3'/30/09 - A NONJURY TRIAL SHALL COMMENCE ON 40P3 9 AT 8:45 AM IN CR2 CUMBERLAND COUNTY COURTHOUSE - BY EDGAR B BA LEY J - COPIES MAILED 3/30/09 ------------------------------------------------------------------- DEFENDANT'S OBJECTION TO SCHEDULED TRIAL DATE - BY DEFT/PRO SE -------=----------------------------------------------------------- ORDER OF COURT - 4/17/09 IN RE: DEFTS OBJECTION TO SCHEDULED TRIAL DATE - MOTION IS DENIED - BY EDGAR B BAYLEY J - COPIES MAILED 4/17/09 ------------------------------------------------------------------- VERDICT - DATED APRIL 30, 2009 - GENERAL FINDINGS AND VERDICT - PERCENT F PER S ANNUM FROM JANUARY PLUS 2005 TOGDATE TOTALING $1534X22 AGAINST DEFENDANT BY THE COURT EDGAR B BAYLEY J COPIES MAILED ., ------------------------------------------------------------------- TRANSCRIPT OF PROCEEDINGS - BY EDGAR B BAYLEY J ------------------------------------------------------------------- MOTION FOR RECONSIDERATION - BY DEFT ------------------------------------------------------------------- PLAINTIFF'S REPLY TO DEFTS MOTION FOR RECONSIDERATION - BY DAVID R GALLOWAY ATTY FOR PLFF ------------------------------------------------------------------- PRAECIPE TO CONVERT VERDICT TO JUDGEMENT - CONVERT THE ATTACHED VERDICT ENTERED FOR PLFF MBNA AMERICAN BANK N A AND AGAINST DEFT FRED BRILLHART TO A JUDGMENT IN THE AMOUNT OF 5,947 44 WITH LEGAL INTEREST FROM JANUARY 11, 2005 PLUS COSTS DAV D R GALLOWAY ESQ FOR PLFF ------------------------------------------------------------------- PYS511 Cumberland County Prothonotary's Office Page Civil Case Print 2006-04289 MBNA AMERICA BANK N A (vs) BRILLHART FRED Reference No... Filed......... 7/27/2006 Case Type.....: COMPLAINT Time.........: 3:03 Judgment..... 5 947.44 Execution Date 0/00/0000 Judge Assigned: OLER J WEHEY JR Jury Trial.... Disposed Desc.: Disposed Date. 0M0/0000 ------------ Case Comments ------------- Higher Crt 1.: 177DA2009 73- / 7g 10/09/2009 DEFENDANT'S APPEAL TO THE SUPERIOR COURT OFgPENNSYLVANIA BY DEFT ------------------------------------- 10/20/2009 SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO #1772 MDA 2009 -------------------------------------------------------- f?? 10/21/2009 MMEEMOERAANDIUM OPIINION - 10/20/09 - BY EDGAR B BAYLEY J - COPIES 09 ------------------------------------------------------------------- 10/29/2009 NOTICE OF DOCKET ENTRIES MAILED TO DAVID GALLOWAY ESQ AND FRED BRILLHART - - - - - - - - LAST ENTRY * Escrow Information * Fees & Debits Beg*Bal***Pymts/Adl End Bal ******************************** **** ****** ******************************* COMPLAINT 35.00 35.00 .00 TAX ON CMPLT .50 .50 .00 SETTLEMENT 5.00 5.00 .00 AUTOMATION 5.00 5.00 .00 JCP FEE 10,00 10.00 .00 APPT OF ARBITRA 24.00 24.00 .00 JDMT 14.00 14.00 .00 JDMT 14.00 14.00 .00 APPEAL ARBITRAT 350.00 350.00 .00 PRAECIPE TRIAL 25.00 25.00 .00 JDMT 14.00 14.00 .00 APPEAL HIGH CT 48.00 48.00 .00 ------------------------ ------------ 544.50 544.50 .00 ******************************************************************************** * End of Case Information TRUE 000P In Testimony wheroof, I i hand and the seal of said Court at Ca. isi a, Pa. This .....a.%'..... day of.....c 2 G . .c9 1*04 ..... 4z?( Prothonotary JCA VAL W Karen Reid Bramblett, Esq. 6uperior Court of Vennopibattia Pennsylvania Judicial Center Prothonotary Middle District P.O. Box 62435 Milan K. Mrkobrad, Esq. 601 Commonwealth Avenue, Suite 1600 Deputy Prothonotary Harrisburg, PA 17106-2435 (717) 772-1294 www. superior. court. state. pa. us CERTIFICATE OF REMITTAL/REMAND OF RECORD TO: Mr. Long Prothonotary RE: MBNA America Bank v. Brillhart, F. 1772 MDA 2009 Trial Court: Cumberland County Court of Common Pleas Trial Court Docket No: 06-4289 Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Original Record contents: Item Filed Date Description Part with envelope attached November 4, 2009 1 Remand/Remittal Date: 12/28/2009 ORIGINAL RECIPIENT ONLY - Please acknowledge receipt by signing, dating, and returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need not acknowledge receipt. Respectfully, Milan K. Mrkobrad, Esq. Deputy Prothonotary /gig Enclosure cc: The Honorable Edgar B. Bayley, President Judge Fred Brilhart David R. Galloway, Esq. MBNA America Bank v. Brillhart, F. 1772 MDA 2009 Letter to: Mr. Curtis R. Long Acknowledgement of Certificate of Remittal/Remand of Record (to be returned): Signature Date Printed Name nog C 29 5 e ? ?tl MBNA America Bank, N.A. V. Fred Brillhart IN THE SUPERIOR COURT OF PENNSYLVANIA (C.P. Cumberland County No. 06-4289) No. 1772 MDA 2009+k Filed: November IQ , 2009 ORDER Appellee, plaintiff below, has filed a motion to dismiss this appeal filed on October 9, 2009 from the nonjury verdict entered April 30, 2009. Appellee asserts that the appeal was filed untimely. Appellant has not filed an answer to the motion. A notice of appeal must be filed within 30 days after entry of the order from which the appeal is taken. Pa.R.A.P. 903(a). The date of entry of an order is the day that the clerk of the court mails or delivers copies of the order to the parties. See Pa.R.A.P. 108(a). In a matter subject to the Pennsylvania Rules of Civil Procedure, the date of entry is the day that the clerk makes the notation in the docket that notice of entry of the order has been given pursuant to Pa.R.C.P. 236(b). Pa.R.A.P. 108(b); Frazier v. City of Philadelphia, 735 A.2d 113 (Pa. 1999); see also Vertical Resources, Inc. v. Bramlett, 837 A.2d 1193 (Pa. Super. 2003) (appeal was not untimely where there was no indication on the docket that Rule 236 notice was sent). Although judgment was entered on the verdict on August 21, 2009, pursuant to praecipe filed by appellee, the trial court docket does not include a notation that notice of the judgment was given pursuant to Pa.R.C.P. 236(b). Pa.R.C.P. 227.1(c)(2) states: "Post-trial motions shall be filed within ten days after notice of nonsuit or the filing of the decision in the case of a trial without jury." Pa.R.A.P. 302(a) states: "Issues not raised in the lower court are waived and cannot be raised for the first time on appeal." To preserve issues for appeal, parties are required to file post- trial motions following a verdict entered after a trial in law or equity. Chalkey v. Roush, 805 A.2d 491 (Pa. 2002); Diamond Reo Truck Co. v. Mid-Pacific Industries, Inc., 806 A.2d 423 (Pa. Super. 2002). Page 1 of 2 No. 1772 MDA 2009 Page 2 of 2 The record indicates that appellant failed to file post-trial motions pursuant to Pa.R.C.P. 227.1. Accordingly, as appellant failed to preserve any issues for review, the motion to dismiss is hereby GRANTED. Per Curiam TRUE Adest DEC 8 2009 O? DgWy Pwd onout " 3npedw Covert of PA - Middle District 2009 D C 29 Fi 1 33 • CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: Superior Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: MBNA America Bank, N.A. vs. Fred Brillhart 2006-4289 Civil Term • 1772 MDA 2009 The documents comprising the record have been numbered from No.l to 184, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 10!29/2009 . urtis R. Lo ro onotary Regina Lebo An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Date Signature & Title OCT 3 0 2009 • MIDDLE