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COMMONWEALTH OF PENNSYLVANIA
COURT OF COMMON PLEAS
Judicial District, County Of
C V M P3 g V- f, L_ P, to 1c>
NOTICE OF APPEAL
Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on
the date and in the case referenced below.
NAME OF APPELLANT MAU, UIS I. NV. NAM'- OF U.J.
GI:00RGE: 1)'0v-T IR??4t 61- 1-- 02. RaGER? M ANLoVE7
ADDRESS OF APPELLANT CITY STATE ZIP CODE
4 Lt ( MT-ADoW DA 1 V E7
DATE 0 JUDGMENT IN THE CASE OF (Plaintiff) + (Defendant)' j
1e3 , to ! o?D C0rn maALU&jL46 ?tNhNcIAL\,s Gear-g? OcAj flick
DOCKET No. SIGNATURE OF APPELLANT OR A 0RNEY OR AGENT
CV ? 3 --•Oc"
This block will be signed ONLY when this notation is required under Pa.
R.C.P.D.J. No. 1008B.
This Notice of Appeal, when received by the District Justice, will operate as a
SUPERSEDEAS to the judgment for possession in this case.
NOTICE OF APPEAL
FROM
DISTRICT JUSTICE JUDGMENT
COMMON PLEAS No.04 , "I/ C1 '
IL
V I I ui TICS
If appellant was Claimant (see Pa. R
J. No. 1001(6) in action
before a District Justice, A COMPLAINT MUST BE FILED within twenty
(20) days after filing the NOTICE of APPEAL.
Signature of Prothonotary or Deputy
PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE
(This section of form to be used ONLY when appellant was DEFENDANT (see Pa.R.C.P.D.J. No. 1001(7) in action before District Justice. IF
NOT USED, detach from copy of notice of appeal to be served upon appellee.
PRAECIPE: To Prothonotary
Enter rule upon CQ m Mo tl W e C, + ? i l?/.InC i ? SyS-- S appellee(s), to file a complaint in this appeal
Name of appellee(s)
(Common Pleas No. ) within twenty (20) days after service of rule or suffer entry of judgment of non pros.
ignature of appellant or attorney or agent
RULE: To CoMMa, r\WC.C.j ?? *in',tnC.iA l SyS4., appellee(s)
Name of appellee(s)
(1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service
of this rule upon you by personal service or by certified or registered mail.
(2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU.
(3) The date of service of this rule if service was by mail is the date of the mailing.
Date: / 20 Q
Signature o ro on ary a tfi
YOU MUST INCLUDE A COPY OF THE NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH THIS NOTICE OF APPEAL.
AOPC 312-02
COURT FILE TO BE FILED WITH PROTHONOTARY
PROOF OF SERVICE OF NOTLCE OF APPEAL AND RULE TO FILE COMPLAINT
Ii L? 4 1TN1lV 7 N ` . ,?"3 AFT' R '
COMI'oCNYvLALTH'-"'F PENN SYLVANIA
COUNTY OF
AFFIDAVIT; hat 1 served
€ Notice cs n "D. I
20
3
El by,
se re'' lpt attached hereto, and upon the appellee, (name)
by personal service
s_.
(SWORN) (AFFIRMED) AND SUBSCRIBED BEFORE ME
THIS CLAY OF .20
&gnaluie of official before whom affidavit was ma(M,,
t i
My commission expires on 20
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=,COMMONWEALTH OF PENNSYLVANIA
CnIJNTY OF• CUMBERLAND
Mag. Dist. No.:
09-1-02
MDJ Name: Hon.
ROBERT V. MANLOVE
Address: 1901 STATE ST
CAMP HILL, PA
Telephone: (717 ) 761-0583 17011-0000
ATTORNEY DEF PRIVATE :
VICKI A. PIONTEK
24 N GOVERNOR RD
HERSHEY, PA 17033
THIS IS TO NOTIFY YOU THAT:
Judgment: FOR PLAINTIFF
NOTICE OF JUDGMENT/TRANSCRIPT
CIVIL CASE
>PkAINTIFF: NAME and ADDRESS
rCOIIIDMONNEALTH FINANCIAL SYSTEMS,
IN-d
120 N KEYSER AVE
SCRANTON, PA 18504
L J
VS.
DEFENDANT: NAME and ADDRESS
rDOUTRICH
GEORGE
,
441 MEADOW DR
CAMP HILL, PA 17011
L J
Docket No.: CV-0000073-06
Date Filed: 3/13/06
(Date of Judgment)
10/16/06
® Judgment was entered for: (Name) COMMONWEALTH FINANCIAL SYSTEMS
® Judgment was entered against: (Name) DOUTRICH, GEORGE
in the amount of $ 5,661.75--
Defendants are jointly and severally liable.
? Damages will be assessed on Date & Time
This case dismissed without prejudice.
? Amount of Judgment Subject to Attachment/42 Pa.C.S. § 8127
Portion of Judgment for physical damages arising out of
residential lease $
Amount of Judgment
Judgment Costs
Interest on Judgment
Attorney Fees
Total
$ 5,538.75
$ 123.00.
$ 5,661.751
Post Judgment Credits $
Post Judgment Costs $
Certified Judgment Total $
ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE
OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU
MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL.
EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE
JUDGEMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST
COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE.
UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE
A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL,
SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT.
Date I4a isteriaJ District Judge
ceA 4y y this is a or ct co or the proceedings cor>ainitlg the judgment.
a' Date 'e'kaal District Judge
My commission expires first Monday of January, 2012
AOPC 315-06
DATE PRINTED: 10116106 11:51:00 AN
?L
COMMONWEALTH OF PENNSYLVANIA
COURT OF COMMON PLEAS
Judicial District, County Of
NOTICE OF APPEAL
FROM
DISTRICT JUSTICE JUDGMENT
COMMON PLEAS No. ()(,A -
NOTICE OF APPEAL
Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on
the date and in the case referenced below.
NAME OF APPELLANT MAG. DIST. NO. p NAMMt IX- IJ,J. ?
G) j? ?f ]Lw V/y' `
1J t ' ` Ai 11 Y E
C C-) R 6. F 'J - ! l., -T I - p?
ADDRESS OF APPELLANT r^? CITY STATE ZIP CODE
DATE OF JUDGMENT IN THE CASE OF (Plaintiff) FINANCIAL- (Defendant)' t
1 i 4? C? Coy,('rY1c7Y1 Lfi'?Jf fg71`!C
DOCKET No. SIGNATURE OF APPELLANT OR T ORNEY OR AGENT
1 'r
This block will be signed ONLY when this notation is required under Pa. If appellant was Claimant (see Pa. R.C. .J. No. 1001(6) In action
R.C.P.D.J. No. 1008B.
This Notice of Appeal, when received by the District Justice, will operate as a before a District Justice, A COMPLAINT MUST BE FILED within twenty
SUPERSEDEAS to the judgment for possession in this case.
(20) days after filing the NOTICE of APPEAL.
Signature of Prothonotary or Deputy
PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE
(This section of form to be used ONLY when appellant was DEFENDANT (see Pa.R.C.P.D.J. No. 1001(7) in action before District Justice. IF
NOT USED, detach from copy of notice of appeal to be served upon appellee.
PRAECIPE: To Prothonotary
Enter rule upon C a M r^ o 0,'W t (J 4 ?) T` t At" r\( r j S Y,5+p_ MS appellee(s), to file a complaint in this appeal
Name of appellee(s)
(Common Pleas No. Y t'L ) within twenty (20) days after service of rule or suffer entry of judgment of non pros.
ignature of appellant or attorney or agent
RULE: To C Q to M4 n W t.,pI {. *j n k VN C:, j.A ( 5 yS4 appellee(s)
Name of appellee(s)
(1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service
of this rule upon you 4y petStil o! 6QQ vice or by certified or registered mail.
(2) If you do'not file a complaint within this time, a JUDGMENT OF NON PROS MAYBE ENTERED AGAINST YOU.
(3) The date of service of this rule if service was by mail is the date of the mailing. P
i
Date: 1 i 20 j J,','
, Signature o on0ta eputfr
YOU MUST INCLUDE A COPY OF,1fHE NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH THIS NOTICE OF APPEAL.
AOPC 312-02
COURT FILE
PROOF OF SERVICE OF NOTICE OF APPEAL. AND RULE TO PILE COMPLAINT
(this proot of service MUST" BE F1LEO WITHIN TEN (10) GAYS AFTER filing of the notice of appeal. Check applicable boxes.)
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF D A () F ? 1 11,_ ; ss
AFFIDAVIT: I hereby (swear) (affirm) that I served
a copy of the Notice of Appeal, Common Pleas No, d6' 6 3 6tpon the District Justice designated therein on
(date of service) I ( ?6 , 20 <)6., C] by personal service by (certified) (registered) nail,
sender's receipt attached hereto, and upon the appellee, (name)04 mrrN ov% We,, t_ ??'n?.io?I' oys"?Q ??
20 O fo ? by personal service V by (certified) (registered) mail,
sender's receipt attached hereto.
(SWORN) AFFIRMED) AND SUBSCRIBED BEFORE ME
THIS DAY OF Q(?ti! Q? , 20 0(p
Signatur al betore whom alf avit was made
TiVe of offival
My commission expires on
// -/)1 20 0
Signature ofa€€rant
Notarial Seal
Debra C. Houck, Notary Public
Derry TwP,, Dauphin County
My Commission Expires Nov. 13, 2006
AOPC 312A - 02
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COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH FINANCIAL
SYSTEMS, INC.
Plaintiff No.64o-1.34.tj, Civil Term
VS.
GEORGE DOUTRICH,
Defendant
: CIVIL ACTION
NOTICE
YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE
CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN
TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED BY
ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEYS AND
FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE
CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO
SO, THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE
ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY
MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF
REQUESTED NY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR
OTHER RIGHTS IMPORTANT TO YOU.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
CUMBERLAND COUNTY BAR ASSOCIATION
2 LIBERTY AVENUE
CARLISLE, PA 17013
TELEPHONE (717) 249-3166
N
h?Vn- R. M6ge, Es .
Attorney ID 81288
Attorney for laintiff
Law Offices of Alan R. M6ge, Esq.
P.O. Box 1426
Bethlehem, PA 18016-1426
(610) 954-5393
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH FINANCIAL
SYSTEMS, INC.
Plaintiff No. Civil Term
VS.
CIVIL ACTION
GEORGE DOUTRICH,
Defendant
COMPLAINT
1. The Plaintiff is Commonwealth Financial Systems, Inc. ("CFSI"), a corporation
with an address of 120 North Keyser Avenue, Scranton, PA 18504.
2. The Defendant is George Doutrich ("Doutrielf ), an individual with an address of
441 Meadow Dr., Camp Hill, PA 17011.
Count I - Breach of Contract
3. Defendant applied for and received a Direct Merchants Bank credit card, account
number 5458-0040-5606-3421.
4. Use of the Direct Merchants Bank credit card was subject to the terms of the
Cardholder Agreement ("Agreement"), a copy of which was sent to the Defendant along with the
credit card. A true and correct copy of the Agreement is attached hereto, made a part hereof and
marked as Exhibit "A".
5. Defendant used the Direct Merchants Bank credit card account number 5458-
0040-5606-3421 for purchases, cash advances, and/or balance transfers.
6. Defendant was mailed account statements relative to Defendant's use of the Direct
Merchants Bank credit card. A true and correct copy of Account Statements are attached hereto,
made a part hereof and marked collectively as Exhibit "B".
7. The Defendant has defaulted under the terms of the Agreement by failing to make
monthly payments as they became due and owing.
8. The within account was sold by Metris Companies Inc., parent corporation of
Direct Merchants Bank, to Jefferson Capital Systems, LLC ("Jefferson") for valuable consideration
and all rights under said account were assigned to Jefferson, whereupon Jefferson sold the within
account to Collins Financial Services, Inc. ("Collins") for valuable consideration and all rights under
said account were assigned to Collins, whereupon Collins sold the within account for valuable
consideration to Plaintiff CFSI and all rights under said account were assigned to CFSI. A true and
correct copy ofthe Assignment And Bill Of Sale, Purchase Agreement, Assignment And Bill Of Sale
and Affidavit Of Correctness are attached hereto, made a part hereof and marked collectively as
Exhibit "C".
9. Pursuant to the terms of the Agreement, Plaintiff, upon default in payment, may
declare the entire unpaid balance immediately due and payable without notice or demand.
10. Pursuant to the terms of the Agreement, Defendant, is liable for interest on the
unpaid balance.
11. Pursuant to the terms of the Agreement, Defendant, is liable for Plaintiff s court
costs and reasonable attorneys fees.
12. As of August 31, 2006, the balance due and owing to Plaintiff from Defendant
was $6,570.65.
WHEREFORE, Plaintiff, requests judgment in its favor and against the Defendant,
in the amount of $6,570.65 plus costs and interest from August 31, 2006 as well as reasonable
2
attorneys fees of $1,642.67 and such other and further relief as the Court may deem just and
appropriate.
Count II - Account Stated
13. Plaintiff incorporates the allegations of every paragraph enumerated above of
this Complaint as if said paragraphs were fully set forth here at length.
14. The within account was an account in writing and expressly or impliedly accepted
by both parties.
15. The amounts due and owing to Plaintiff by Defendant are based on a subsisting
debt and arise from a preexisting account or course of dealing between the parties.
16. This account is an Account Stated, thereby operating to foreclose any dispute
over the amounts due.
WHEREFORE, Plaintiff, requests judgment in its favor and against the Defendant,
in the amount of $6,570.65 plus costs and interest from August 31, 2006 as well as reasonable
attorneys fees of $1,642.67 and such other and further relief as the Court may deem just and
appropriate.
Count III - Quantum Meruit
17. Plaintiff incorporates the allegations of every paragraph enumerated above of
this Complaint as if said paragraphs were fully set forth here at length.
18. The services provided by Plaintiff, described above, were received by the
Defendant, and the Defendant received and accepted the benefit of said services provided by
Plaintiff.
19. At all times material hereto, Defendant was aware that Plaintiff was
3
providing the aforesaid services to Defendant and expected to be paid for such.
20. At all times material hereto, Defendant, with the aforesaid knowledge,
permitted Plaintiff to provide the aforementioned services and incur damages.
21. At all time material hereto, the Defendant was unjustly enriched by
retaining the benefit of receiving said services without paying Plaintiff fair and reasonable
compensation.
22. By reason of the aforesaid unjust enrichment of Defendant at Plaintiff's
expense, an implied contract exists between the Plaintiff and the Defendant, and the Defendant is
obligated to pay Plaintiff the value of the services described above and in the exhibits attached
hereto, in the amount of $6,570.65 plus costs and interest from August 31, 2006.
WHEREFORE, Plaintiff, requests judgment in its favor and against the Defendant,
in the amount of $6,570.65 plus costs and interest from August 31, 2006 as well as reasonable
attorneys fees of $1,642.67 and such other and further relief as the Court may deem just and
appropriate.
Count IV - Breach of Contract
23. Defendant applied for and received a Household Bank credit card, account
number 5408-0100-0474-2785.
24. Use of the Household Bank credit card was subject to the terms of the
Cardmember Agreement ("Agreement"), a copy of which was sent to the Defendant along with the
credit card. A true and correct copy of the Agreement is attached hereto, made a part hereof and
marked as Exhibit "D".
4
25. Defendant used the Household Bank credit card account number 5408-0100-
0474-2785 for purchases, cash advances, and/or balance transfers.
26. Defendant was mailed account statements relative to Defendant's use of the
Household Bank credit card.
27. The Defendant has defaulted under the terms ofthe Agreement by failing to make
monthly payments as they became due and owing.
28. The within account was sold by Household Bank (Nevada) N.A., to CACV, Inc.
("CACV ") for valuable consideration and all rights under said account were assigned to CACV,
whereupon CACV sold the within account for valuable consideration to Unifund CCR Partners
("Unifund") for valuable consideration and all rights under said account were assigned to Unifund,
whereupon Unifund sold the within account Plaintiff CFSI and all rights under said account were
assigned to CFSI. A true and correct copy of the Assignment And Bill Of Sale, Affidavit Of Debt
and Affidavit Of Indebtedness are attached hereto, made a part hereof and marked collecively as
Exhibit "E".
29. Pursuant to the terms of the Agreement, Plaintiff, upon default in payment, may
declare the entire unpaid balance immediately due and payable without notice or demand.
30. Pursuant to the terms of the Agreement, Defendant, is liable for interest on the
unpaid balance.
31. Pursuant to the terms of the Agreement, Defendant, is liable for Plaintiff s court
costs and reasonable attorneys fees.
32. As of August 31, 2006, the balance due and owing to Plaintiff from Defendant
was $2,729.73.
5
WHEREFORE, Plaintiff, requests judgment in its favor and against the Defendant,
in the amount of $2,729.73 plus costs and interest at the rate of 18% per annum from August 31,
2006 as well as reasonable attorneys fees of $682.44 and such other and further relief as the Court
may deem just and appropriate.
Count V - Account Stated
33. Plaintiff incorporates the allegations of every paragraph enumerated above of
this Complaint as if said paragraphs were fully set forth here at length.
34. The within account was an account in writing and expressly or impliedly accepted
by both parties.
35. The amounts due and owing to Plaintiff by Defendant are based on a subsisting
debt and arise from a preexisting account or course of dealing between the parties.
36. This account is an Account Stated, thereby operating to foreclose any dispute
over the amounts due.
WHEREFORE, Plaintiff, requests judgment in its favor and against the Defendant,
in the amount of $2,729.73 plus costs and interest at the rate of 18% per annum from August 31,
2006 as well as reasonable attorneys fees of $682.44 and such other and further relief as the Court
may deem just and appropriate.
Count VI - Quantum Meruit
37. Plaintiff incorporates the allegations of every paragraph enumerated above of
this Complaint as if said paragraphs were fully set forth here at length.
6
38. The services provided by Plaintiff, described above, were received by the
Defendant, and the Defendant received and accepted the benefit of said services provided by Plaintiff.
39. At all times material hereto, Defendant was aware that Plaintiff was
providing the aforesaid services to Defendant and expected to be paid for such.
40. At all times material hereto, Defendant, with the aforesaid knowledge,
permitted Plaintiff to provide the aforementioned services and incur damages.
41. At all time material hereto, the Defendant was unjustly enriched by
retaining the benefit of receiving said services without paying Plaintiff fair and reasonable
compensation.
42. By reason of the aforesaid unjust enrichment of Defendant at Plaintiff's
expense, an implied contract exists between the Plaintiff and the Defendant, and the Defendant is
obligated to pay Plaintiff the value of the services described above and in the exhibits attached
hereto, in the amount of $2,729.73 plus costs and interest from August 31, 2006.
WHEREFORE, Plaintiff, requests judgment in its favor and against the Defendant,
in the amount of $2,729.73 plus costs and interest at the rate of 18% per annum from August 31,
2006 as well as reasonable attorneys fees of $682.44 and such other and further relief as the Court
may deem just and appropriate.
By:
atty. I.D. #812
Attorney for -Plaintiff
P.O. Box 1426
Bethlehem, PA 18016-1426
(610) 954-5393
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DIRECT MERCHANTS BANK°
CAROMEMBER SERVICES
PO BOX 21550
TULSA OK 74121-1550
MAKE PAYMENTS PAYABLE TO: DIRECT MERCHANTS BANK
YOUR PAYMENT COUPON ACCOUNT NUMBER 5458 0040 ISM 3421
STATEMENT NEW MINIMUM AMOUNT PAST PAYMENT MUST AMOUNT
DATE BALANCE PAYMENT DUE DUE BE RECEIVED BY ENCLOSED
MAY 20, 2002 4,798.73 579.00 455.00 NOW DUE
FOR ADDRESS AND/OR PHONE NUMBER
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THEA ES, ON CaIrEBB DE
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SEND PAYMENTS TO: 2033023
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DIRECT MERCHANTS BANKO
A VIEW OF YOUR RECENT CHARGES AND CREDITS Online account access: www.direetmarchantsbonk.com
TRANS POST REFERENCE
DATE DATE NUMBER DESCRIPTION CREDITS F}?1HGES
'
PURCHASES, CASH ADVANCES & FEES
llz?
04/19 04119
0520 05120 OVERLIMIT FEE 34.00
LATE FEE 34.00
'FINANCE CHARGE' PURCHASES $8.17 CASH ADVANCE $11727 'w 123.44
YUUH AL:VUUr4 I AUMMAM T - MA ¦ 4W4
ACCOUNT AND PAYMENT INFORMATION CREDIT LINE INFORMATION
ACCOUNT NUMBER 54560040$6063421 TOTAL CREDIT LINE $4400
NEW BALANCE 4796.73 TOTAL AVAILABLE CREDIT P Re14pES +
MINIMUM PAYMENT DUE $79.00 CASH ADVANCE CREDIT LIMIT' 2200
«
CQWDVANCES
AMOUNT PAST DUE 455M CASH ADVANCE AVAILABLE CREDIT TS -
PAYMENT MUST BE OVERUMIT AMOUNT YMENTS
RECEIVED BY NOW DUE 'CASH ADVANCE CREOR LIMIT OTHER +
PORTION OF YOUR TOTAL CRE L FINANCE CHARGE +
CARDMEMSER SERVICE CENTER:
FROM OUTSIDE THE U.S. CALL COLUECT480-375-41
SEND PAYMENTS TO: PAYMENT
MAIL INQUIRIES TO: CARDMEMBE
NOTICE: SEE REVERS
Online accou 1
NEW BALANCE V s
899 24 HOURS, 7 DAYS A WEEK
N IMPAIRED-TDD CUSTOMERS CALL: 877.902-0987
Bd 17036, BALTIMORE MD 21297-0446
, PO BOX 21550, TULSA, OK 74121-1550
IMPORTANT INFORMATION,
AVERAGE
DAILY
BALAN 'a *
,,aed Y
P I C`
4 RA`TE?? NOMINAL
ANNUAL
PERCENTAGE
RATE
FINANCE
CHARGE
ANNUAL
PERCENTAGE
RATE NUMBER
OF DAYS
IN BILLING
CYCLE
STATEMENT
CLOSING
DATE
CE
PURCHASES 21
7
X010 %
29.24%
6.17
29.24 %
CASH ADVANCES 4460. .06213% 29.99% 117.27 29.99 % 32 MAY 20, 2002
$994 0000 XPO 2 7 14 020520 E X Page 1 of 1 8800 4000 196P 01AX5994 203393
BE SUR -T N YOUR;Ct
NORTION ZF,OUR STATEMEN
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DIRECT MERCHANTS BANK°
CARDMEMBER SERVICES
PO BOX 21550
TULSA OK 74121-1550
• MAKE PAYMENTS PAYABLE TO: DIRECT MERCHANTS BANK
L STATEMENT NEW MINIMUM AMOUNT PAST PAYMENT MUST AMOUNT
DATE BALANCE PAYMENT DUE DUE BE RECEIVED BY ENCLOSED
JUN 20, 2002 4,992.15 704.00 579.00 NOW DUE
FOR ADDRESS AND I OR PHONE NUMBER '
a CHANGES, CHECK THIS BOX AND COMPLETE
THE FORM ON REVERSE SIDE.
SEND PAYMENTS TO: L 189340
pp p 023
PAYMENT CENTERMGINwPA 17611 1166
PO BOX 17036
BALTIMORE MD 21297-0448
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DIRECT MERCHANTS BANK!
A VIEW OF YOUR RECENT CHARGES AND CREDITS Online account access: www.directmorcharttabartk.com
TRANS POST REFERENCE
DATE DATE NUMBER DESCRIPTION CREDITS UJARGES
PURCHASES, CASH ADVANCES 6 FEES
05121 05/21 OVERLIMIT FEE 34.00 11C? 0620 0620 LATE FEE 34.00
'FINANCE CHARGE' PURCHASES $7.64 CASH ADVANCE $116.58 >im 124.42
- JUNE 2002
A 11
ACCOUNT AND PAYMENT INFORMATION CREDIT LINE INFORMATION ACC41iT
UMMARY
ACCOUNT NUMBER S484 0040 580 9421 TOTAL CREDIT LINE $4400 7acLANCE $4709.73
NEW BALANCE 4802.16 TOTAL AVAILABLE CREDIT 0 W. + 0100
MINIMUM PAYMENT DUE 704.00 CASH ADVANCE CREDIT LIMIT' 2200 VANCES + 0.00
AMOUNT PAST DUE 870.00 CASH ADVANCE AVAILABLE CREDIT ITS - 0100
PAYMENT MUST BE OVERUMIT AMOUNT ,1 AVMENTS - 0100
RECEIVED BY NOW DUE 'CASH ADVANCE CREDIT LIMIT OTHER + 68.00
PORTION OF YOUR TOTAL CRE L FINANCE CHARGE + 124.42
NEW BALANCE 4902.18
CAROMEMBER SERVICE CENTER: 800 9 24 HOURS, 7 DAYS A WEEK
FROM OUTSIDE THE U.S. CALL COLLECT: 904-997.4 - IMPAIRED-TDO CUSTOMERS CALL; 877-902.0987
SEND PAYMENTS TO: PAYMENT C£ 0 17036, BALTIMORE MO 21297-0448
MAIL INQUIRIES TO:CARDMEMBE , PO BOX 21550, TULSA, OK 74121-1550
NOTICE: SEE
R IMPORTANT INFORMATION.
.
Online eccOUn Alrectmerchontsbankcom
MP'W 7 NOMINAL
AVERAGE ANNUAL
DAILY OW_ PERCENTAGE MNA14CE
PURCHASES 3 '.66010 % 29.24% 7.84
CASH ADVANCES 45 .08215 % 29.99% 116.56
5994 0000 XPD 2 7 14 020620 E X Page I of 1
NUMBER
ANNUAL OF DAYS STATEMENT
PERCENTAGE IN BILLING CLOSING
29.24 %
29.99 % 31 JUN 20, 2002
8000 4000 196P OIAK5994 189340
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DIRECT MERCHANTS BANK®
CARDMEMBER SERVICES
PO BOX 21550
TULSA OK 74121-1550
MAKE PAYMENTS PAYABLE TO: DIRECT MERCHANTS BANK
YOUR PAYMENT COUPON ACCOUNT NUMBER 5456 0040 5606 3421
STATEMENT NEW MINIMUM AMOUNT PAST PAYMENT MUST AMOUNT
DATE BALANCE PAYMENT DUE DUE BE RECEIVED BY ENCLOSED
JUL 22, 2002 5,183.71 638.00 704.00 NOW DUE '
D Now address or email? Check box. See reverse side.
SEND PAYMENTS TO: 7874023
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545800405606342100083800005143717
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_
DIRECT MERCHANTS BANK®
A VIEW OF YOUR RECENT CHARGES AND CREDITS Online account access: www.diroctnwchentsbank.com
TRANS POST REFERENCE
DATE DATE NUMBER DESCRIPTION CREDITS ARGES
PURCHASES, CASH ADVANCES 5 FEES
08@1 08121
07/22 07122 OVERLIMIT FEE
LATE FEE 34.00
34.00
'FINANCE CHARGE' PURCHASES $10.07 CASH ADVANCE $123.49 133.58
O
AS
1 VUr.^1. Vlirer .-- I - .., I
ACCOUNT AND PAYMENT INFORMATION
ACCOUNT NUMBER S4S6 0040 SWS 3421
NEW BALANCE 5193.71
MINIMUM PAYMENT DUE a3a.00
AMOUNT PAST DUE 704.00
PAYMENTMUST BE
RECEIVED BY NOW DUE
CREDIT LINE INFORMATION A Oi011NUMMARY
TOTAL CREDIT LINE S 4400 s ALANCE
& L8
+ $4092.15
TOTAL AVAILABLE CREDIT 0 +
i# 0.00
CASH ADVANCE CREDIT LIMIT' 2200 VANCES + 0.00
CASH ADVANCE AVAILABLE CREDIT ITS - 0.00
OVERLIMIT AMOUNT YMENTS - 0.00
'CASH ADVANCE CREDIT LIMIT 1 - OTHER • 58.00
PORTION OF YOUR TOTAL CRE _ L FINANCE CHARGE a 133.55
CARDMEMBER SERVICE CENTER:
FROM OUTSIDE THE U.S. CALL COLLECT: 904-997-
SEND PAYMENTS TO: PAYMENT C
MAIL INQUIRIES TO: CARDMEMBE
NOTICE: SEE REVERS
Online accounkAW1
NEW BALANCE 5193.71
V7999 24 HOURS, 7 DAYS A WEEK
ya IMPAIREO-TDO CUSTOMERS CALL: 877-902-0967
B 17036, BALTIMORE MO 21297-0448
, PO BOX 21550, TULSA, OK T4121-1550
IMPORTANT INFORMATION.
A SUMMARY OF YOUR FINANCE CHARGE '0b
NOMINAL NUMBER
AVERAGE O ANNUAL ANNUAL OF DAYS STATEMENT
DAILY PERCENTAGE FINANCE PERCENTAGE IN BILLING CLOSING
BALANC - E RATE CHARGE RATE CYCLE DATE
PURCHASES 10 % 29.24% 10.07 29.24%
CASH ADVANCES 46971k .06215 % 29.99% 123.49 29.99 % 32 JUL 22.2002
5994 0000 XPD 2 1 14 020722 E X Page 1 of 1 8800 4000 196P OIAKS994 187405
i
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YOUR, "i
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DIRECT MERCHANTS BANK!
CARDMEMBER SERVICES
PO BOX 21550
TULSA OK 74121-1550
MAKE PAYMENTS PAYABLE T0; DIRECT MERCHANTS BANK
STATEMENT NEW MINIMUM AMOUNT PAST PAYMENT MUST AMOUNT
DATE BALANCE PAYMENT DUE DUE BE RECEIVED BY ENCLOSED
JUL 31, 2002 0.00 0.00 0.00 NOW DUE :;;•; ;.
0 New address or email? Check box. See reverse side. -'
SEND PAYMENTS TO: E L pppp r pp 023
POYBOXT17036ENTER TPGHILNWPAD17011-1166 D
BALTIMORE MD 21297-0448
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Detach and i~ this top Portion in the onclosed envelop. Be sun the Payment Canter addreas shows in the envelope window.
DIRECT MERCHANTS BANK!
A VIEW OF YOUR RECENT CHARGES AND CREDITS Online account access: www.direelmwchantsbank.COM
TRANS POST REFERENCE
DATE DATE NUMBER DESCRIPTION CREDITS GES
PAYMENTS AND CREDITS
07131 07/31 F88MK409990990 CHARGE OFF ACCOUNT-PRINCIPALS 4
07/31 07/31 F88000OK400999990 CHARGE OFF ACCOUNT *FINANCE CHARGES'
PURCHASES, CASH ADVANCES III FEES
0723 07/23 OVERLIMIT FEE 34.00
ACCOUNT AND PAYMENT INFORMATION CREDIT LINE INFORMATION .T $ MMARY
ACCOUNT NUMBER 5456 0040 5606 3421 TOTAL CREDIT LINE $ 4400 Aff '9ALANC£ 45193.71
NEW BALANCE 0.00 TOTAL AVAILABLE CREDIT 0 ASES • 0.00
MINIMUM PAYMENT DUE 0.00 CASH ADVANCE CREDIT UMIT' ADVANCES r 0.00
AMOUNT PAST DUE 0.00 CASH ADVANCE AVAILABLE CREDIT
# EDITS - 5227.71
PAYMENT MUST BE OVERLIMIT AMOUNT
40
PAYMENTS -
0.00
RECEIVED BY NOW CUE 'CASH ADVANCE CREDIT LIMIT OTHER 34.00
PORTION OF YOUR TOTAL CRE FINANCE CHARGE . OAO
NEW BALANCE . 0.00
CARDMEMBER SERVICE CENTE 88 24 HOURS, 7 DAYS A WEEK
FROM OUTSIDE THE U.S. CALL COLLECT: 904-997-
V
G IMPAIRED-TOO CUSTOMERS CALL: 877-902-0967
SEND PAYMENTS T0: PAYMENT C 17038, BALTIMORE MD 21297-0648
MAIL INQUIRIES TO: CAROMEMBE
W .0121a$0, TULSA, OK 74121-1550
NOTICE: SEE REV, C R IMPORTANT INFORMATION.
Online ,diroetmerchantsbanitzom
OF
NOMINAL NUMBER
AVERAGE I ANNUAL ANNUAL OF DAYS STATEMENT
DAILY.?E,. o DIC PERCENTAGE FINANCE PERCENTAGE IN BILLING CLOSING
PURCHASES 0-646, N .08010% 29.24% 0.00
CASH ADVANCES 0.00 .06215% 29.99% 0.00
5994 0000 %PD 2 5 14 020731 Z % Page 1 of Z
29.24%
29.99% 30 JUL 31.2002
8800 4000 196P OIAK5994 0
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01/24/05 08:22 F.U 7702088181
CompuCredit Corporation
ti.'?LL] IT UCIP
ASSIGNIVMNTT AND BILL OF S.AU
'I004
Jefferson Capital Systems, LLC ("Seller") has entered into a Purchase Agreement ("Agreement")
dated, November 19th, 2004 for the sale of Accounts, described in Exhibit "A" thereof, to
Collins Financial Services, Inc., ("Buyer") upon the terms and conditions sat forth in that
Agreement.
NOW, THEREFORE, for good and valuable consideration,'Seller hereby sells, assigns and
transfers to Buyer all of the Seller's rights, title and interest in each and evcry one ,of the
Accou is described m_thc_A ==L
Phis BILL OF SALE is executed without recourse or w== ies except as stared and prov'idod
for within tho purchase and sale agreement.
Buyer and Sell= agree that the Purchase Price shall be as stated in Exhibit "B" (Term
Agreement), attached to the agreement.
IN WrIivESS WHEREOF, Seller has signed*.and delivered this instrument on the"I9ti.4a of
January, 2005.
3
1k e-I P
05-03
PMZC}3 ASE AGP.EENM1 NIT
This Purchase Ao Bement ("Agreement") is entered into this 30°i day of November, 2004, by and
between, Jefferson Capital Systems, LLC, 245 Perimeter Center Parkway, 5tb Floor, Atlanta, GA 30346,
a Georgia limited liability company ("Seller"), and Collins Financial Services, Inc., 2101 W. Ben'Alhite
Blvd., Suite 103, Austin, TX 75704, a Texas corporation ("Buyer").
' I-MREAS, Seller desires to sell to Buyer from time to time (i) certain charged off receivables
outstanding in Defaulted Accounts as of the Initial Cut-Off Date (as defined in Exhibit A attached hereto)
and as identified in the electronic file that has been provided by Seller to Buyer and as listed on Schedule
1 to the Bill of Sale consisting of (a) certain charged off receivables having an aggregate charge-off
balance of approximately that have not been placed with more than three collection
agencies since charge-off (collectively the "Initial Post Tertian Receivables" or "Initial Receivables")
and (ii) future charged-off receivables having an aggregate charge-off balance of at least
that have not been placed with more than three collection agencies since charge off to be identified and
sold in a electronic file (s) delivered by Buyer on or before March 31, 2005 (the "Additional
Receivables", and together with the Initial Receivables, the "Receivables");
A.oseement. Seller hereby agrees to sell and Buyer hereby agrees to buy currently existing charged-
off receivables (the "Receivables") identified in Exhibit A attached hereto with an aggregate balance
of approximately Seller also agrees to sell an additional volume of accounts with
an aggregate charge off balance of at least such transaction to close on or before
March 31, 2005. The Closing Date(s) for the Additional Receivables shall be scheduled at a date
mu=lly agreeable to both parties.. The Cut Off Date(s) for the Additional Receivables shall be.. .
within ten (10) days of each scheduled Closing Date. As of each Closing Date for and in.
consideration of the amount specified in Ebhtbit B, attached hereto and incorporated herein for aJ1; ..
purposes (the "Purchase Price"), and the covenants contained herein, Seller will agree to sell to
Buyer and Buyer will agree to purchase from Seller the Receivables listed on Exhibit A, attached
hereto and incorporated herein for all purposes (the "Accounts"). The transfer of the Accounts shall
take place on each Closing Date defined and specified in each Exlubit B, said date to be determined
by Seller. On or before each Closing Date the Buyer shall cause to be delivered to Seller the-
Purchase Price in funds delivered by wire, pursuant to the instructions set forth in Exhibit B. Upon
receipt of wire of the Purchase Price, Seller will execute and cause to be delivered to Buyer a Bill of
Sale for the Accounts, in substantially the same form as Exhibit C, attached hereto and incorporated
herein for all purposes.
2. Disqualified Accounts.;
REDACTED
b. Buyer Representations. Buyer agrees and aclcnowled_=es that this sale of Accounts is made `=as-is"
without recourse or representation as to the character, accuracy or sufficiency of information or
,rees to comply, and to require any assignee to comply,
coIlectabiIity, expressed or implied. Buyer ag
with all debt collection regulations and laws. Buyer further agrees that neither they, nor their
employees, agents, or representative of' any type, will contact the originators or original seller,
without the written consent of the Seller.
Rover Indemnification. Buyer agrees to indemnify, defend and hold harmless Seller, the previous
owner of the Accounts, and their respective parents, subsidiaries, affiliates, officers, directors,
employees, shareholders, agents, partners and principals (collectively "Seller Indemnified Parties"),
from any and all claims, actions suits or other proceedings, and aD losses, judgments, damages
egenses or other costs (including all' fees and costs of legal counsel) incurred or suffered by Seller
Iadernnified Parties by reason of any of Buyer's, or its agents, wrongful acts or inaction, including
without limitation negligent or willful misconduct or violation of any applicable law, rule or
regulation in connection with the Accounts or otherwise.
Seller Representations. Seller represents and warrants a) that all Account information and data
famished to Buyer in connection with this Agreement is true and accurate to its best belief and
knowledge in accordance with the information that was provided to Seller by the prior owner of the
Accounts; b) that it is the owner of the Accounts and that it has the power and authority to sell,
transfer and assign the Accounts and the proceeds thereof to Buyer; c) that it has all of the rights,
title and interests of the original seller in the Accounts; and d) that Seller is duly and legally
authorized to enter into this Agreem=t and has complied with all laws, rules, regulations, and
bylaws to which it may be subject and that the undersigned representative is authorized to act on
b-_?alf of and bind Seller to the terms of this Agreement; e) Seller has not placed the Accounts with
mare than three collection agencies since charge-off.
9. Seller Indemnification. Seller agrees to indemnify, defend and hold harmless Buyer, the previous
owners of the Accounts, and their respective officers, directors, employees, shareholders, agents,
partners and principals (collectively `Buyer Indemnified Parties"), from any and all claims, actions
suits or other proceedings, and all losses, judgments, damages, ea-penses or other costs (including all.
fers and costs of legal- counsel) incurred or suffered by Buyer Indemnified Parties by reason of. (a) . .
any of Seller's, or its agents, acts or inaction, including without limitation negligent or willful
misconduct or violation of any applicable law, rule or regulation, in connection with the Accounts or
otherwise; or (b) as a result of, or arising out of or attributable to any act or omission by an
originating creditor or its agents including, without limitation, a servicing agent hired by the -
originating creditor; provided, however, such indemnification shall only exist or be provided to the
extent Seller actually receives indemnification from an originating creditor pursuant to the original
purchase agreement.
10. Use of Names. Buyer shall not use the name of Seller, it subsidiaries, the original creditor(s), or any
similar name or successor corporation in any way in the operation of its collection of the Accounts,
including but not limited to letters or forms, except that Buyer may refer to an Account in the body of
a collection letter, body of a lawsuit (not in the caption) or in telephone commuriication with the
Account debtor(s) that the account was owned by Seller or original creditor(s) and sold to Buyer.
Buyer will not represent in any way that Buyer is an agent, affiliate or acting on behalf of Seller or
shall be binding upon the parties. If either party does not respond or comply with these rules, or
does not attend any unexcused hearings in connection therewith, a default judgment or a default
award against them shall be made.
15. UCC Filing. Immediately following each Closing Date and the written consent from all Original
Creditors, each Receivable sold by Seller to Buyer hereunder will be made free and clear of any
Ems or encumbrances. Seller has acquired a1I right, title and interest, sufficient to make the
conveyances contemplated in this Agreement Seller aclmowledges that Buyer may Me a UCC :fling
in connection with the sale of the Receivables under this Agreement. Seller hereby agrees to
cooperate reasonably with any request by Buyer, at no out-of-pocket expense to Seller, in connection
with any such Ming by Buyer.
IN WITNESS VdbIF,I.EOF, the parties hereto, have executed this Agreement, or have caused this
Agreement to be executed by their dub, authorized officer as of the date first set forth above.
Seller: Jefferson Capital Systems, LLC
245 Perimeter Center Parkway,
By
Title:
Buyer: Collins Financial Services, Inc.
2101 W. Ben White Blvd., Suite 103
Austin, TX 75704
By:
Title:
5
EXHIBIT A
ASSIGNMENT AND BILL OF SALE
COLLINS FINANCIAL SERVICES, INC., A Texas corporation ("Seller") has entered into an Accounts
Sale Agreement, dated November 29, 2004 C Agreement") for the sale of Accounts described on Annex I
thereof to Commonwealth Financial Systems, Inc. ("Buyer"), upon the terms and conditions set forth in
that Agreement. .
NOW, THEREFORE, for good and valuable consideration, Seller hereby sells, assigns, and transfers to
Buyer all of Seller's rights, title and interest in each and every one of the Accounts described in the
Agreement, provided however such transfer is made without any representations, warranties or recourse,
except as provided in the Agreement.
Buyer and Seller agree that the Purchase Price shall be as stated on Annex U, attached to the Agreement.
IN WIT SS YeMREOF, Seller has signed and delivered this instrument on the '/;5e day of
TV ?LM NY 2004.
Collins Financial Services, Inc.
Name: Tony
Title: Vice
-20-
AFFIDAVIT OF CORRECTNESS
STATE OF TEXAS COUNTY OF TRAVIS
BEFORE ME, on the day and date set forth below, the undersigned Notary, being qualified and
commissioned in and for the county and state aforesaid, personally came and appeared Gary
Wood, who being duly sworn, did depose and say:
Affiant is the President at Collins Financial Services, Inc., and in that capacity, Affiant
is personally familiar with the debt (the "Account") made by George Doutrich, (the "Debtor")
made payable to Metris.
That Affiant was responsible for the books and records of the Seller, reflecting payments
made on the Accounts; and, that Affiant knows of his own personal knowledge which payments
have been received by Seller on the Accounts; that a complete and accurate list of the Accounts,
sold to Commonwealth Financial Systems, Inc., was provided at the time of sale; and, that the
balances of said Accounts indicated thereon are accurate to the best of Affiant's knowledge and
belief, based on the balances represented to Seller at the time of Seller's acquisition of the
Accounts and any payments received by Seller;
That the account has fully matured and on information and belief based upon business
records from Worldwide Asset Management the balance due under the credit card remains
unpaid;
That the correct amount currently owed by the Debtor on Account Number
5458004056063421, as reported by the creditor who sold the account, which was purchased by
Collins Financial Services, Inc, and as reflected in all records of the account of which Collins
Financial Services, Inc. has knowledge, is the principal sum of $5,227.71.
To the best of Affiant's knowledge, information and belief, the debtor does not qualify
for the exemption pursuant to the Soldier and Sailor's Civil Relief Act of 1940.
I declare under Penalty of Perjury, pursuant to the laws of the State of Texas, that the
foregoing is true and correct and would so testify if called as a witness in the within matter.
Executed this 28`i' day of April 200. at Travis County, Texas.
8y: a oo ,
President, at Collins Financial Services, Inc.,
Sworn to and Subscribed Before me
this 28"' day of April 2006.
-2
Notary Public ?._
NOTARY STAMP:
?.?? ??;? •,
1* ? Rachael Pumo
Notary Public
* State of Texas
My Commb1lal Expires
FESHUASY 07, 2008
Household Bank
CARDMEMBER AGREEMENT
AND DISCLOSURE STATEMENT
GENERIC AG1119F
Pieaae taeap ttv: with your impoAtrat paphxs.
AORBR311IDNf TO TSRNSi1SBOP ACCOl1Nf-0BPll MON OP PARM
In this Cardmember Agreement and Disclosure Statement and the
enclosed sheet entitled 'Important Information Regarding Your
Account" (collectively, the 'Agreement') and in your monthly
statements, the words you' and'youe refer to all persons named on
the credit card application, Account, credit card or acceptance
certificate, the word "Card" means a single credit end or two or more
credit cards we have issued to you under this Agreement, the wards
'we', 'tits", and 'our refer to Household &mk (Nandi), N.A., W
Vegas, Nevada and the vrord 'Account' man ' the open and line of
credit we have eswb&*W for you and which can be accessed by your
Card or other means approved by u: You may not use your credit card
thetta to make°psyri?e I to us or any bf our affil'uutis.
This Agreement (and any amendments) corers your Account with us,
and you and we will be bound by it from the time you receive your Cud
or Agreement. You agree to use this Account only for pertid 4 ramify,
household or charitable purposes. You nay cancel this Account before
using It without paying any fees. If your Account is aeount, you
and your joint Accountholder each promise to pay anct are Jointly and
individually responsible for all amounts due under this Agreement
regardless of up divorce or other legal proceedings or any "meat
that may affect liability between you. If any of you gives us notice
disclaiaft liability for amounts owed under this Agreement, we may
close the Account. In that event, you may continue to pay the
outstanding e
How"", you
wns not be able to make say now charges on the Account.
PIOMTOPAY
Yom ptambe to pay according to the terms that we require or request for
(a) credit erdanded by as to you or to anyone whom you permit to ass
this Account; (b) Finance Charges, late charge:, and other
adminiskadre charges (ag, reWtnad check elatge, overYmlt in and
research cherp) previded In this Agreement; (e) collection comb, and
atorti* few vas permuted by applic"' hvr, and (d) credit in vox, of
your credit lkttit final we may extend to you. We can accept late or partial
payments or checks or money orders marked 'Payment In NIP or
otherwise rtlhictiyely endowed without waiving our right to fmmo&4
pgmwA In lids or losing upof ourtlghts under this Agreement.
Nan" CiBOfI' LOUT
You will not exceed the credit ftmit that we act for you. You may obtain
credit by alp meam approved by us until the total unpaid balance of
your Account reatim your credit limit At our discretion, we may lhnu
the amount of any type of transaction on your Account, Including Cah
Advnnoes. You agree that any transaction limitations may chugs at
any time without notice to you as lung as the limit Is applied to III or a
substantial portion of our accounts. You agree not to allow your total
unpaid balance, including Finance Charges and other charges, to
exceed your credit limit eats Whed by us from time to time. We are not
required to make Cash Advances (including accepting credit card
checks or Automated Teller Machine ('ATM') transactions), or extend
: credit for purchases at your request if you ham exceeded your credit
',o`'
.
I t- VATEMEN-rS
%Ya will send you a statement covering each billing cycle in which you
have a balance in excess of $I showing (as'of the billing cycle):
(a) payments, credits, purchases, Cash Advances, Finance Charges,
and all other charges made to your Account; (b) the mLdmum payment
you must make called the Iblinimum Payment") and the date it !r
requested; and (c) your available credit.
PAM M
-•' *; •• Each monthyou must pay us at least the Minimum Payment reflected on
your statement. We must receive the Wnimunt Payment within 25 days
. after the close of the baling cycle (called the 'Pa)ment Due Date'). U
i
h
You w
s
, you may pay more than the Minimum Payment and at any time
you may pay the entire amount owed (called 'New Balance').
For billing cycles beginning on or after May 1, 1999, the blinimum
Payment each month will be equal to the gttsur of:
(a) (I) M of the New Balance or S 15, whichever is greater (or the
amount of the New Balance it less than S15), plus
M SAY pad due amounts appearing on your statement, or
the amine bywhich the New Balance exceeds yourcredit HWL
All payments by mail must be made by check or money order. You
agree that any payment you make may be returned to you without
appb* it to your Account and without presentment or protest, for any
reason, Lrcluding U the check or money order Is (1) not drawn on the
U.S. Post Office or a financial institution located In the United Stater
(2) missing a signature, (3) drawn with different numeric aced written
amounts; (4) restrictively endorsed; (5) postdated; (6) not payable to
Household Credit Services, Inc. or Household Bank (Nevada), NA;
(7) not drawn. In U.S. dollars on funds on deposit In the US; (B) tat
paid upon presentment; or (9) drawn on a credit card access or outer
check Issued by Household Bank or its affiliates. You agree to pay any
bank or financial institution collection fces we Incur tot any Cheek
payments made In U.S. dollars drawer on a financial Institution not
located In the United States. All payments under this Agreement must
be received at the address specified on.ypur billing statement.
Disputed payments, Including those marked 'Paymcnt In Fall''Or
otherwise restrictively endorsed must be mailed to the Customer
` Service address shown on your monthly statement.
MME CIL41GES
Finance Charges are the total of (a) periodic Finance Charges and
(b) Cash Advance Fee Finance Charges.
lay renodvc Frwance charges. These are computed by multiplying
the •Daily Periodic Rate" by the Avenge Daily Balance of your
Account and then multiplying the result by the number of days In
the billing cycle. For billing cycles beginning on or after June 1,
1999, to get the 'Daily Balances, we take the beginning debit
balance of )our Account each day, add any new purchases and/or
It Advances (whether In cash, by credit cud cheek, byATM or
otherwise), any previous day's periodic Finance Charges, the
Annual Fee (Ir applicable), Cash Advance fees, any late ehhss??es,
arty ortrlimit fees and other administrative charges (l111121ng
credit life insurance) on your Account, and subtract any payments
and/or credits applied to your Account. It a debit transaction
posts after the beginning of your billing cycle but the transaction
occurred prior to the beginning of )our billing cycle, the daily
balance will be adiusted to include the transaction amount lead
any previous day's periodic Finance Charges, for each day the
transaction was outstanding prior to the beginning of the turmt
billing cycle. Then we add all the Daily Balances for the billing
cycle together and dhide the total by the number of days Ins On
billing cycle. ?his this us the Average Daily Balance.
The Daly Periodic Rate used to determine your periodic Finance
Chugs will be avariabie rate which may change.
The a.y : ?fi n mlalmam rite Annual Finance Chati hDai e Customar Rate and
r ga fo wary APR are
shown in the enclosed sheet entitled 'important information
Regarding Your Account."
The Dairy Periodic Rate for the Customary APR w40 be based on
1AMh of the sum of the highest Prime Rate published in 77u Wall
Street Journal on the fourth Thursday of tt,c month preceding t
month in wfiich the billing period begins ('Index'). plus the Spr-,
117hie Mall Street Journal or the Prime Rate is not publbhird on
fourth Thursday,` he rate will be determined en the ne; day L
Prime Rate Is publshed in Thor 111411 Street Journal.'ilte.new I'r?
Periodic Rate is applicable to the billing cycle that beg'uu on or 2=i
the first day of the next succeeding month.
If your Minimum Payment is made after the Payment' Due Data.
U your payment Is returned unsatis&d for any reason, you WZ =
longer be eligible for any special reduced promotional AZ-=.
Percentage Rate you may have and your entire balance wzl
changed to the Customary APR.
You qualify for the Customary APR as brag as your Minimum Paynie=
raceh,ed ud pasted to your Account within 53 days of the Payment r•
Date. U your 0nimum Payment Is 58 or mart days late, your Acs
will no longer be eligible for the Customary.APR and your e_
balance ut change to the Default APR. If at any time the Custer.:.,
APR exceeds the Default APR, then the Customary APRw•01 app; •
the balance of lour Account. Your Account may be reconsidered .
lower rate after you te-establish and maintain your Account In r -
standing fwstxconsecutht months:
For billing cycles be&AI ng on or after May 1, IM, the Daily Perz
Rate far the DeWitt APR will be based on 1ld65th of the sum cC
Index plus 2024 % ("Spread') and B applicable to the billing cycle
begins on or after the first day of the next succeeding month_
e Iff r the he octet suit APR rtrring December have been & a Dally tneg??
for urouk y Periodic F_
of OTM% (corresponding to a 11TAK ANN fAL P •R •ff
$r+ ).The mhdaaum rate of MANC U for
PR wi the Dom`
Ail be a Daily Periodic Rate of .07668% (corresponding
27.99% A\'stTfA! PERCBhTA(-FTE). An Increase In the F=
Rate will increase your applicable Daily Periodic Rate ton
Customary and DetaWt APRs, which may increase the Finance Cis
and the lludmum Payment due on your Account.
For billing cycles beginning ork or after May 1, 1999 pet'_•-
Finance Charges o.. uieWdes begin to accrue on-the date e!
purchase transaction (including administrathe hes and bMed
unpaid Finance Charges) except that no periodic Finance CI' _ •
will be Incurred on new credit card Furci ues if the New Bala:-.
even statement Is paid in full within 25 days after the close c
billing gale (called your 'Grace Period"). It the New Balance
paid In full for any cycle aAer hating been paid in full or havirt;
a zero balance for the previonu cycfe, periodic Finance Clur> =
be Incurred on new credit card purchases comprising'tha_
Balance from the transaction date. For any .billing cycle kgme:'-
folloaing one for which then was a New Balance that was ncz
in full within 25 days following the close of the previous billing c
periodic Finance Charges will be Incurred on credit card pa._'
from the date of the trasmction and on previously billed but
purchases from the beginning of the current cycle.
'Cash Advances' include all advances made by cash advance-:
the coaster, through an ATM, by check or other `Cas`.
transactions which will be determined by tat. Periodic F',=
Charges on Cash Advances, including advances And pure'
made by credit card check wilt Accrue from the date of the
Advance transaction until the Cash Advance is paid In full. Pe.
Finance Charges on Cash Advances which accrue Me:
statement date will appear on the next statement.
If periodic Finance Charges are to be assessed, all tram
posted will have periodic Finance Charges initially calculated
the Daily Periodic Rate Ins effect on the posting date. •
A change in )rout maRing address may result in a change t;
billing Cycle.
.(b) Cash Advance Fee FManee Cha_*hes. A Finance Charge
computed on the amount of each Cash Advance as of the ,'
trarsutkn.'f he Cash Advance Fee pjN&M CHARGE for i
Advances, Including Cash Advances made by credit card c' -
4% of the Cash Advance, vrith a minimum FINAN(,E CKAS
$5. Any Cash Adana Fte ranee Chute may Inttcase t1:s
Annual Percentage Rate.
itaK r 'I .
There will be a Minimum Fii+MGR C M• - of S2 r3ch billing
1 jycle in svhich.a periodic Finance Charge is payable. Any M!,t.raAum
finance Charge may increase the actual Annual Percentage Rate.
Ml'UAL FEE
Tat 'Important Information Regarding Your Account' sheet Indicates
whether or not your Account is subject to an Annual Fee. It Your
Account has an Annual fee, you agree to pay a non-refundable Annual
Membership Fee for eachyear your Account is open in as amount to be
set by us from time to time. You agree that the Annual Fee, u atq, Will
De charged to your Account
It we do not receive the Minimum payment within 25 days after the
close of the billing cycle, you agree to pay a $29 charge.
RE'fUR.\'ED CgECKCELiRGE
You agree to pay $29 each time your payment on your Account Is
returned unsatisfied by your bank of other financial Institution. You
agree that this tee may be added to your Account
You agree to pay $29 each time a credit card check Is returned
unsatisfied by us for any reason. This fee will be added to your Cash
Advwxe balance.
OYERL1311r FEE
You agree to pay a 329 fee for each billing cycle you exceed your
credit Iimkt
RFSEARCH CILUCE
You agree to pay37 for each sales slip copyyou request and $5 for each
statement copyyou request.
AYPUCATIO.NOP PAY3ly.\M
Your payments will be allocated In a manner we determine in
accordance with appUcable law, and may charge from time to time.
CHANGE Of TERMS (tacladiog Fiaaace Clarits): SUBJECT 70
APPUWLE I AW, W9 MJAT CKA1%E OR.TE TE Ah t TLR31 OF TBIS
AG REE)IE.?T OR ADD NEW I PJt)fS AT AiYTr 'WeLUD6Y0 WITSOut
LDiITATIOY ADDING 01 VCREASW FEES, VXREASLNO YOUR WON=
MINIMUM PADIENT AND INCREASING THE RATE O1 AMOUNT OF
FINA.I"CE CILi1GE, 01 CILViGING THE METHOD OF COMP ING TUE
BALANCE UPON IIVICR FR NCE CHARGES ARE ASSESSED. PRIOR
WRITTEN NOTICE IF1LL BE PROYIDED TO YOU ITKEK REQUIRED ET
APPLICABLE LAW. CHANGES NAY APPLY TO BOTH NEW AM
OCTSTANDING B.> VNCES. tie MAY ASSIGN YOUR ACCOUNT TO OUR
AFFiLLACTES OR TO SO)M OTHER FL•NANCLU. L%TITIiTION AT APfTMM
DEFAULT AND TEXMD;AnO.1 OF AGIMEhT
You writ be in default under this Agreement upon: (a) your taflure to
make at least the Min4aum Payment wizen due; (b) your violation of
any other provision of this Agreement; (e) your death; (d) your
becoming the subject of bankruptcy or Laohency proceedings; (e) your
becoming the subject of attachment, foreclosure, repossession, lien,
judgment or pralshrgeat luooeediags, (t) your failure to suppb us with
_any information we•reasonably deem necessary; (g) your to
With misleading, false, Incomplete at incorrect information;' oar
receipt of iatormatlon that you are umdlWtg or unable to rform the
terms or conditions of this Agreement; (1) our receipt of futomuttlon
from third-parties, Including credit repotting agencies, W" hW ates
a serious deiinquencyor ehugeoff with other credits ; 0) your default
under any other lean or agreement you have with us or any'of our
aNlates; (It) your movitrg out of the US, or providlagi us with a aon•U.S.
malling address; your becoming tnce speten m) yore etocecdlag
your credit Mdt; n your payment Is returned unsatisfied by your bank
or flutau?cial Inset NUfor any resserq -of (o) arq credit std check h
returned unpaid by ux After your defaelt, your Account balam will
continue to aeetue Flnattce Charges at the coatraeirate. default,
we have the right to terminate or suaptttd your credit egos ender
this Agreement, to change the terms of your Account and this
Agreement, to require you to pay.your entire Account balance htdadkng
all accrued but aapald charges Immediately, and to sue you for what
you owe. You wilt pay our court costs, reasonable attorneys' fees and
other collection costs related to the default to the extent permitted by
the taw In the'stale In which you reside. Upon default, we Mill apply
your payments fust tu attorneys' fees and then to principal and unpaid
Finance Charges.
CREDTGALTHORI7ATIONS .
Some yiurchases will require our prior authodzatior and you may be
asked by the merchant to provide idediflation. If our authorization
system is not working, we may not be able to imthorize a trarssactioq
even if you have sufficient available credit We will not be liable to you
if ate/ of these events happen. We are not responsible for the refusal or
any merchant to accept or honor ywCard.
CARD RE.NEP/AL
Cards are Issued with an expiration date, We have the tight not t6
renewyour Cud for any reason.
CARD CAINGEL1AT10.Y
We can terminate or reduce your credit limit at any Cunt and for any
reason, subject to the requirements of applicable lass. Balances
outstanding under this Agreement when your credit limit Is reduced or
terminated will continue to accrue Mutrice Charges until paid in &L.
and an subject to all the terms and conditions of this Agreement You
agree to return to us or destroy your Cards}and any unused credi-
card checks, and we will not honor a.Ty credit card check irtten or
yaw40count Irw•e receive the check after your Account is cancelled.
CLOSINGYOUR ACCOM'T
You can cancel or -close your Account by writing to us at P.O. Bo
81622, Satfnas, CA 93912-162L Your notice becomes e[fectire with;
five days after we recelve It. It you cancel the Account, you ma;
immdiately pay everything you owe us, Including any amounts over
but not yet billed to you. If you do not pay us Immediately, outstaadis
balances will continue to accrue finance and other charges and I
subject to the terms and conditions of this Agreement. You also agn
to return your Card(s) and any unused credit card checks to us. T
will not boner any credit std check written on your Account If
v
receive the check afteryourAccount is closed.
LIABUJ(T FOR WAiITBORIZEO USE
You should retain eoplei of all charge slips until you recelv'e y.-
statement, at which time you should verify that the charges are t
and the amounts unaltered. You may be liable for the unauthorized
of your credit card. You WIN not be liable for unauthorized use t
occurs after you notty us of the loss, theft or possible unauthorized,
Notification must be given by writing as immediately upon lewtir
the lass, theft cc possible unauthotized use at P.O. Box 81622, SaL
CA 93912.1622 or by calling us at the phone number listed on
billing statement. In any case, your liability lot unauthorized t_
your credit card will not eased 330, Hotrever, unauthorized use
not include use by a person to whom you have given the credit m
authority to use the Accouat, and you will be IbUc for all use by a
user. To terminate this authority, you aunt retrieve the credit
from the previously authorized user and return it to us at the ad
mentioned above along with a letter explaining why)- are doing
SECURITY
I% are extending you an unsecured Mae of credit. We therefore
Say security interest that ln%ht arise under this Agreement i
language In other loan agreements you may have with us.
IW OR STOLIz CREDfrCARDCHECKS
You agree to not* us iramedfately if any credit card checks are
stolen. You may notiby us* alling 1-"645M.
CV&VGE Of MiK ADDRFSS,YEI.EPHO:YE NWEI OR E)iPi.OW-
You agree to give us prompt notice of say change in your name,
address, telephone number or place of employment
STOP PAh3IEh?
We wilt add a 329 fee to the Cash Advance balance eac
payment of a credit cud check is stopped at your request 1
stop payment on a credit cud cheek by notifying us In w:
P.O. Box 81622, Salinas, CA 93912.1622 or by calling u
telephone number listed on the billing statement. When y<
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EXHIBIT "C"
ASSIGNMENT AND BILL OF SALE
CACV, Inc. ("Seller") has entered into a Purchase Agreement ("Agreement") dated, October 7,
2002 for the sale of Accounts, described in Exhibit E thereof, to Unifund CCR Partners,
01'("Buyer") upon the terms and conditions set forth in that Agreement.
NOW, THEREFORE, for good and valuable consideration, Seller hereby sells, assigns and
transfers to Buyer all of the Seller's rights, title and interest in each and every one of the
Accounts described in the Agreement.
THIS BILL OF SALE IS EXECUTED WITHOUT RECOURSE OR WARRANTIES EXCEPT
AS STA'L'ED AND PROVIDED FOR WITHIN THE PURCHASE AND SALE AGREEMENT.
Buyer and Seller agree that the Purchase Price shall be as stated in Exhibit B (Term Agreement),
attached to the agreement.
IN WITNESS WHEREOF, Seller has signed and delivered this instrument on the 7th day of
October 2002.
CAC V, Inc.
i ..
By:
Mklaz?f Sexton
President
PURCHASE AGREEMENT - Page 6
V 45 [e
10/02/2006 16:26 5709631644 NCC PAGE 02/02
' y 1
AFFIDAVIT OF DEBT
I am the Sr. Vice President of Sales for Collect America, LTD (the "Seller') and
the servieer for CACV of Colorado, LLC, which owncd the account of the customer
named below under the account number specified. The statements in this affidavit are
based on the computerized and hard copy books and records of.the Seller, maintained in
the ordinary course of business the entries having been made by a regularly operated
business. The aff ian.t is authorized to make the statements and representations herein.
Customer Name: George T. Doutrich
Account #: 5408010004742785
A computerized open date, ending balance and last payment date were maintained on the
Seller's database. The balance purchased from Atlantic Credit St Finance, Inc. was
$1,557.93. The ending balance on our books and records on 3/12/2003, the date that all
right, title and interest was transferred to Un.ifinad CCR Partners, LP under the terms of a
Purchase Agreement was $1,557.93. To the best of the of iant's knowledge, information
and belief, there were no un-credited payments, just counterclaims or offsets against such
debt at that time.
of,, U Yr l 121-, 2006
9L44 ae6
Notary Public
this-day of -?? I r 06
My commission expires:
- Duly sworn to before me
61 O"Wresim Exp(ros OMM10
l ?x. J
State of Ohio )
County of Hamilton) ss.
Jessica Bergholz being sworn, deposes and says that she is Media Supervisor of Unifund CCR
Partners herein called assignee, which is doing business at 10625 Techwoods Circle, Cincinnati,
Ohio 45242 and that she is authorized to make the statements and representations herein.
The defendant is not in any branch of the armed services.
There is due and payable from GEORGE DOUTRICH, Account Number 5408010004742785,
the amount of $1557.93 in principal balance plus interest at the contract rate. By the terms of the
agreement between the defendant and the original creditor, interest is accruing at the contract
rate.
AFFIDAVIT OF INDEBTEDNESS
This account was originated with Household Bank. Unifund CCR Partners purchased this
account from Household Bank. Said account has been assigned, transferred and set over unto ,
COMMONWEALTH FINANCIAL SYSTEMS with full power and authority to do and perform
all acts necessary for the collection, settlement, adjustment, compromise or satisfaction of said
claim.
DATED this 08 October 2003.
UNIFUN C ARTNERS
By: Jessica Berg-holz Media Supervisor
Title
10625 Techwoods Circle Cincinnati OH 45242
Address
Subscribed and sworn to before me this 8 day of October,2003
J\ ? Year
° , . .U..
Client4og.
i.. 4? IV
.k
Notary Public
y commission expires
G`i to i.'r
,n
a? mr
J
Ido 9j,'9
4 !? •
VERIFICATION
I, Patricia Cobb, Esquire, of Commonwealth Financial Systems, Inc.,
Plaintiff herein, do hereby verify that I am the keeper of records of the
Plaintiff in the foregoing civil action and that I am fully authorized to make
this verification and that the facts set forth in the Complaint are true and
correct to the best of my knowledge, information and belief.
Verifier understand that false statements herein are made subject to the
penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to
authorities.
Z,2? A L-P
Date: PATRICIA COBB
CFSI File No.1ta/;q 3,3 W, I OQ q 15 9
t h.
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH FINANCIAL
SYSTEMS, INC.
Plaintiff
VS.
GEORGE DOUTRICH,
Defendant
: No.
CIVIL ACTION
CERTIFICATE OF SERVICE
Civil Term
I, Alan R. Mege, Esquire, hereby certify that on November 20, 2006, a true and correct copy
of Plaintiffs Complaint was sent to the Defendant via regular mail, postage prepaid to: Vicki
Piontek, Esq., C/O George Doutrich, 24 West Governor Rd., Hershey, PA 17033.
By: -
;M&ge, uire
Atty. I.D. 081 8
Attorney for Plaintiff
P.O. Box 1426
Bethlehem, PA 18016-1426
(610) 954-5395
C`
- -Ti
--G
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH FINANCIAL
SYSTEMS, INC.
Plaintiff
VS.
GEORGE DOUTRICH,
Defendant
No. 06-6364-Civil Term
CIVIL ACTION
CERTIFICATE OF SERVICE
I, Alan R. M6ge, Esquire, hereby certify that on November 20, 2006, I propounded
upon Defendant, Plaintiff's Interrogatories, Request for Production of Documents, and Request for
Admissions by mailing same, first class, postage prepaid mail, to: Vicki Piontek, Esq., C/O George
Doutrich, 24 West Governor Rd., Hershey, PA 17033.
By:
lan R. M6ge, Esquire
Atty. I.D. #81288
Attorney for Plaintiff
P.O. Box 1426
Bethlehem, PA 18016
(610) 954-5393
_ h..3
C;7
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
COMMONWEALTH FINANCIAL SYSTEMS,
Plaintiff CV 2006-6364
Vs.
GEORGE DOUTRICH,
Defendant
DEFENDANT'S PRELIMINARY OBJECTIONS
It is believed and averred that THE CLAIM IS OUTSIDE OF THE STATUTE OF
LIMITATIONS.
2. All of the payment invoices indicate that the debt is over 4 years old for purposes of the statute of
limitations.
WHEREFORE, Defendant requests this Honorable Court to dismiss Plaintiff s Complaint.
-A ? 1 I- L2. O LO(,
Vicki Piontek, Esquire Date
Attorney for Debtors
24 West Governor Road
Hershey, PA 17033
717-533-7472
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
COMMONWEALTH FINANCIAL SYSTEMS,
Plaintiff CV 2006-6364
Vs.
GEORGE DOUTRICH,
Defendant
ORDER
And now, this day of
20 , upon
consideration of Defendants' Preliminary Objections, the same shall be granted.
Plaintiff's complaint shall be stricken.
The Court
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
COMMONWEALTH FINANCIAL SYSTEMS,
Plaintiff CV 2006-6364
Vs.
GEORGE DOUTRICH,
Defendant
CERTIFICATE OF SERVICE
Attorney Vicki Piontek affirms that she is the attorney for the Defendant, and that on the 20th day of
December, 2006, she sent by First Class U.S. Mail, postage prepaid, a true and correct copy of the attached
PRELIMINARY OBJECTIONS on Plaintiff's attorney at the following address:
Alan R. Mege, Esquire
P.O. Box 1426
70 East Broad Street
Bethlehem, PA 18016
?-'j J.'Crtk -
Vicki Piontek, Esquire
Attorney for Defendant
24 West Governor Road
Hershey, PA 17033
717-533-7472
J-2-, 20166
Date
C .. :a -Tj
f:. t
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH FINANCIAL
SYSTEMS, INC.
Plaintiff
No. 06-6364
vs.
GEORGE DOUTRICH,
Defendant
TO THE CLERK OF SAID COURT:
CIVIL ACTION
PRAECIPE
Please enter judgment in favor of Plaintiff Commonwealth Financial Systems, Inc. and
against Defendant George Doutrich in the amount of $11,632.54 plus costs and interest from
August 31, 2006, for want of filing an Answer. I certify that a 10-day notice, a copy of which is
attached hereto, was served on Defendant via first class mail on December 11, 2006.
ege, Esq.
Attorney ID No. 8126
Attorney for Plaintiff
P.O. Box 1426
Bethlehem, PA 18016
(610) 954-5.93
R'
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH FINANCIAL
SYSTEMS, INC.
Plaintiff : No. 06-6364
vs.
GEORGE DOUTRICH, CIVIL ACTION
Defendant
TEN DAY NOTICE
TO: Vicki Piontek, Esq., C/O George Doutrich, 24 West Governor Rd., Hershey, PA 17033.
DATE OF NOTICE: December 11, 2006
YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO TAKE ACTION
REQUIRED OF YOU IN THIS CASE. UNLESS YOU ACT WITHIN TEN DAYS FROM THE
DATE OF THIS NOTICE, A JUDGEMENT MAY BE ENTERED AGAINST YOU WITHOUT
A HEARING AND YOU MAY LOSE YOUR MONEY OR OTHER IMPORTANT RIGHTS.
YOU SHOULD TAKE THIS NOTICE TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER OR CANNOT AFFORD ONE,
FOLLOWING OFFICE TO FIND OUT WHERE YOU GO TO OR CAN GET LEGAL HELP.
CUMBERLAND COUNTY BAR ASSOCIATION
2 LIBERTY AVENUE
CARLISLE, PA 17013
TELEPHONE (717) 249-3166
etto!?y' , Esq.
ID No. 81288
Attorney for Plaintiff
Law Offices of Alan R. Mege, Esq.
P.O. Box 1426
Bethlehem, PA 18016-1426
(610) 954-5393
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
Commonwealth Financial Systems, Inc.
Plainiff
vs. NO. 06-6364
George Doutrich
Defendant
AFFIDAVIT OF NON-MILITARY SERVICE
The undersigned, being duly sworn, according to law, deposes and says that the Defendant(s)
is/are not in the Military or Naval Service of the United States or its Allies, or otherwise within the
provisions of the Soldiers' and Sailors' Civil Relief Act of Congress of 1940 as amended;
That George Doutrich is over 18
years of age, resides at 441 MEadow Dr., Camp Hill, PA 17011
and is employed
That Defendant
is
years of age, resides at -
and is employed
That Defendant
is
years of age, resides at
and is employed
That Defendant
is
years of age, resides at ...
and is employed
I, Alan R. M6ge, Esquire, do hereby verify that I am the attorney for Plaintiff, that I
am fully authorized to make this Verification on their behalf, that the Defendants are unavailable to
make this verification, that the facts contained in the foregoing pleading are true and correct to the best
of my knowledge, information and belief, and the source of my information are interviews with my
client and the Plaintiff's filed documents.
The verifier understands that false statements herein are made subject to the penalties
of 18 Pa. C.S. Section 4904 r nsworn falsification to authorities.
Signed: Dated: 12/22/06
-F
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C?,.
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COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH FINANCIAL
SYSTEMS, INC.
Plaintiff No. 06-6364
vs.
CIVIL ACTION
GEORGE DOUTRICH,
Defendant
( ) Notice is hereby given that a Judgment in the above captioned matter has been
entered against you in the amount of $11,632.54 plus costs and fees on
I-Ec- 22 2006.
( ) A copy of all documents filed with the Prothonotary in support of the within
judgment is/are enclosed.
Prothonotary
By:
If you have questions regarding this Notice, please contact the filing party:
NAME: Alan R. Mege, Esq.
ADDRESS: P.O. Box 1426
Bethlehem, PA 18016
TELEPHONE NO. 610-954-5393
(This Notice is given in accordance with Pa.R.C.P.§236.)
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
COMMONWEALTH FINANCIAL SYSTEMS,
Plaintiff CV 2006-6364
Vs.
GEORGE DOUTRICH,
Defendant
MOTION TO OPEN JUDGMENT AND VACATE JUDGMENT
1. On or about 12/27/2006, preliminary objections were filed in the above captioned matter by the
Defendant.
2. Said preliminary objections were mailed by Defendant's lawyer on 12-20-06.
3. On or about 12/27/2006, a precipe for default judgment was filed in the above captioned matter by
the Plaintiff.
4. The Defendant's preliminary objections were clocked in first by the Prothonotary before the
Plaintiffs precipe for default judgment.
S. A default judgment was entered by the prothonotary on 12-27-07.
6. Said judgment was therefore entered in error.
7. There is good cause to open the judgment and vacate the default judgment entered on 12-27-06.
8. Plaintiff should be required to Defendant's Preliminary Objections.
Wherefore, Defendant prays that this Honorable Court will open the judgment entered on or about 12-27-
06, and vacate the judgment entered. Defendant should be required to file an answer to Defendant's
preliminary objections.
Y LL. 9i GY1 V-+ a 1&7
'Vicki Piontek, Esquire- Date
Attorney for Defendant
24 West Governor Road
Hershey, PA 17033
717-533-7472
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
COMMONWEALTH FINANCIAL SYSTEMS, :
Plaintiff CV 2006-6364
Vs.
GEORGE DOUTRICH,
Defendant
CERTIFICATE OF SERVICE
Attorney Vicki Piontek affirms that she is the attorney for the Defendant, and that on the 1st day of
February, 2007, she sent by First Class U.S. Mail, postage prepaid, a true and correct copy of the attached
MOTION TO OPEN JUDGMENT AND VACATE JUDGMENT on Plaintiff's attorney at the following
address:
Alan R. Mege, Esquire
P.O. Box 1426
70 East Broad Street
Bethlehem, PA 18016
Vicki Piontek, Esquire Date
Attorney for Defendant
24 West Governor Road
Hershey, PA 17033
717-533-7472
E. f ?'A
94 ?y r ? "nr'1Yy s ? "Y
.T.v:
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH FINANCIAL
SYSTEMS, INC.
Plaintiff No. 06-6364
VS.
: CIVIL ACTION
GEORGE DOUTRICH,
Defendant
PLAINTIFF'S REPLY TO DEFENDANT'S PETITION TO OPEN
1. Denied. Defendant has failed to serve a time-stamped copy of his Preliminary
Objections on Plaintiff.
2. Admitted only that an unsigned, unfiled copy of Defendant's Preliminary
Objections were received by Plaintiff.
3. Admitted. By way of further answer, the Judgment and Docket are written
documents which speak for themselves.
4. Denied. Defendant has failed to serve a time-stamped copy of his Preliminary
Objections on Plaintiff. By way of further answer, it is believed and therefore averred that the
Prothonotary received Plaintiff's Default Judgment prior to Defendant's Preliminary Objections.
Receipt of a document, and not "clocking in" is considered filing.
5. Admitted. By way of further answer, the Praecipe for Judgment, 236 Notice and
Docket are written documents which speak for themselves.
6. Denied. Plaintiff's Default Judgment was timely and properly received and filed
by the Prothonotary.
7. Denied. Defendant has no reasonable excuse for the delay in filing this petition,
has failed to prove a defense, and has failed to offer an explanation of why his petition is in violation
of Pa.R.C.P.237.3 by being untimely and failing to attach a proposed Answer as required by
Pa.R.C.P. 237.3 for a Petition for relief from a default judgment.
8. Denied. Defendant's Preliminary Objections are clearly improper as they merely
raise the affirmative defense of the Statute of Limitations. Note, under paragraph 4 to Pa.R.C.P.
Rule 1028 clearly states "The defense of the bar of a statute of frauds or statute of limitations can
be asserted only in a responsive pleading as new matter under Rule 1030." Additionally, the
Preliminary Objections would be untimely as they were filed more than 20 days after service of the
prior pleading, in violation of Pa.R.C.P. 1026.
WHEREFORE, Plaintiff, requests that Defendant's Motion be denied.
By:
Aof Mege, Esq
Atty. I.D. #8128
Attorney for Plaintiff
P.O. Box 1426
Bethlehem, PA 18016
(610) 954-5393
2
i
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH FINANCIAL
SYSTEMS, INC.
Plaintiff No. 06-6364
VS.
CIVIL ACTION
GEORGE DOUTRICH,
Defendant
CERTIFICATE OF SERVICE
I, Alan R. Mege, Esquire, hereby certify that on February 5, 2007, a true and correct copy of
Plaintiff's Reply to Defendant's Motion was sent to the Defendant via regular mail, postage prepaid
to: Vicki Piontek, Esq., C/O George Doutrich, 24 West Governor Rd., Hershey, PA 17033.
By:
A . Mege, Esq ' e
Atty. I.D. #81288
Attorney for Plaintiff
P.O. Box 1426
Bethlehem, PA 18016-1426
(610) 954-5395
n
d '}
COMMONWEALTH FINANCIAL IN THE COURT OF COMMON PLEAS OF
SYSTEMS, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
CIVIL ACTION - LAW
vs. : NO. 06-6364
GEORGE DOUTRICH,
Defendant
IN RE: DEFENDANT'S MOTION TO OPEN JUDGMENT AND VACATE JUDGMENT
ORDER
AND NOW, this Z Z "' day of February, 2007, upon consideration of the foregoing
petition, it is ordered that:
1. A rule is issued upon the plaintiff to show cause why the defendant is not entitled to
the relief requested;
2. The plaintiff shall file an answer to the petition within twenty (20) days of service
upon him;
3. The petition shall be decided under Pa.R.Civ.P. 2006.7;
4. Depositions, if necessary, shall be completed within thirty (30) days of this date;
5. Argument shall be held on the 5th day of April, 2007, at 2:00 o'clock p.m. in
Courtroom Number 4 of the Cumberland County Courthouse, Carlisle, PA.
6. Notice of entry of this order shall be provided to all parties by defendant's attorney;
and
7. All matters in this matter are stayed pending resolution of this rule.
BY THE COURT,
C
I
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fir.
f.} 1 r n"•.tt
14,
Z I : I #ld ZZ 83.E LQOZ
3A- JO
a f° ! l14
Alan R. Mege, Esquire
For the Plaintiff
Vicki Piontek, Esquire
For the Defendant
:rlm
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH FINANCIAL
SYSTEMS, INC.
Plaintiff
No. 06-6364-Civil Term
VS.
GEORGE DOUTRICH,
Defendant
CIVIL ACTION
PLAINTIFF'S MOTION TO COMPEL
And now comes Plaintiff and submits the instant Motion to Compel, and in support
thereof avers as follows:
1. Judgment for Plaintiff and against Defendant in the sum of $11,632.54 plus costs was
entered in Cumberland County on December 27, 2006.
2. Plaintiff served Interrogatories in Aid of Execution upon Defendant, via first class
mail on February 6, 2007.
3. Pursuant to Pa.R.C.P. 4006 (a) (2), Defendant's responses to the Interrogatories were
due within thirty days after they had been served, but none has been received as of the date of
giving notice herein.
4. Counsel for Plaintiff has made a good faith effort to confer with counsel for the
Defendant, but Defendant's counsel has still failed to reply.
5. As of March 19, 2007, Plaintiff has not received answers to the Interrogatories.
6. A copy of this Motion and proposed Order were mailed to Defendant's counsel, via
first class mail on March 19, 2007. A certificate of Service is attached hereto as Exhibit "A".
7. Plaintiff' requires an Order pursuant to Pa.R.C.P. 4019 (a) (1) (I), compelling the
Defendants to answer the Interrogatories.
WHEREFORE, Plaintiff, requests that this Honorable Court grant its motion and
enter an Order directing the Defendant to answer Plaintiff s Interrogatories within twenty (20)
days or risk sanctions, pay fees in the amount of $100.00, as well as such other and further relief
as the Court may deem just and appropriate.
,?.- lege, Esq.
Attorney ID No. 81
Attorney for PI ' tiff
PO Box 142
70 East Broad Street
Bethlehem, PA 18016-1426
3610-954-5395
-2-
t
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH FINANCIAL
SYSTEMS, INC.
Plaintiff
VS.
GEORGE DOUTRICH,
Defendant
No. 06-6364-Civil Term
CIVIL ACTION
CERTIFICATE OF SERVICE
I, Alan R. Mege, Esquire, hereby certify that on March 19, 2007, I served a true
correct copy of Plaintiffs Motion to Compel Defendant's Answers to Interrogatories in Aid of
Execution and proposed Order by mailing same, first class, postage prepaid to: Vicki Piontek, Esq.,
C/O George Doutrich, 24 West Governor Rd., Hershey, PA 17033.
By: -
. Mege, Esquir
tty. I.D. #81288
Attorney for Pla ntiff
P.O. Box 1426
70 East Broad St.
Bethlehem, PA 18016-1426
k%X
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-
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rv Fri
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH FINANCIAL
SYSTEMS, INC.
Plaintiff No. 06-6364-Civil Term
VS.
: CIVIL ACTION
GEORGE DOUTRICH,
Defendant
PLAINTIFF'S AMENDED MOTION TO COMPEL
And now comes Plaintiff and submits the instant Motion to Compel, and in support
thereof avers as foilows:
1. Judgment for Plaintiff and against Defendant in the sum of $11,632.54 plus costs was
entered in Cumberland County on December 27, 2006.
2. Plaintiff served Interrogatories in Aid of Execution upon Defendant, via first class
mail on February 6, 2007.
3. Pursuant to Pa.R.C.P. 4006 (a) (2), Defendant's responses to the Interrogatories were
due within thirty days after they had been served, but none has been received as of the date of
giving notice herein.
4. Counsel for Plaintiff has made a good faith effort to confer with counsel for the
Defendant, but Defendant's counsel has still failed to reply.
5. As of March 19, 2007, Plaintiff has not received answers to the Interrogatories.
6. A copy of this Motion and proposed Order were mailed to Defendant's counsel, via
first class mail on March 19, 2007. A certificate of Service is attached hereto as Exhibit "A".
7. Plaintiff requires an Order pursuant to Pa.R.C.P. 4019 (a) (1) (I), compelling the
Defendants to answer the Interrogatories.
1
8. A Rule to Show Cause was issued on February 22, 2007 by the Honorable Judge
Kevin A. Hess, with regard to Defendant's Petition to Open Judgment.
9. Counsel for Defendant is in opposition of this Motion.
WHEREFORE, Plaintiff, requests that this Honorable Court grant its motion and
enter an Order directing the Defendant to answer Plaintiff s Interrogatories within twenty (20)
days or risk sanctions, pay fees in the amount of $100.00, as well as such other and further relief
as the Court may deem just and appropriate.
.
Attorney ID 288
Me?Plaintiff
Attorney fo PO Box 1426
70 East Broad Street
Bethlehem, PA 18016-1426
3610-954-5395
-2-
C= -Ti
rnrr, ?" ni?
f'Tl
co
r
MAR 2 2 2007 4
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH FINANCIAL
SYSTEMS, INC.
Plaintiff
vs.
GEORGE DOUTRICH,
Defendant
No. 06-6364-Civil Term
CIVIL ACTION
ORDER
AND NOW, this .70 " day of tx,-. , 2007, upon consideration of Plaintiff's
Motion to Compel, and Defendant's response thereto, if any, it is hereby
ORDERED that Plaintiff's Motion is GRANTED; and
IT IS FURTHER ORDERED that Defendant must make full and complete answers to the
-^ wJ- <?•7
interrogatories, without objection or motion for protective order, within ty&-nty-(M) days of the it-ev,
idafe "of this Order or appropriate sanctions will be imposed upon Defendant following application
to this Court.
A' o y
pria i
Distribution:
VA-flan R. Mege, Esc;., 70 E Broad St., Bethlehem, PA 18016
Xki Piontek, Esq., C/O George Doutrich, 24 West Goven
f
0 : { I d 0C d' !4 LODZ
62M404VAA -FMkCa(
SIfS ItitS? ?NC. ? ?(a?c??t T[
vs.
In the Court of Common Pleas of
Cumberland County, Pennsylvania
No. x006 - of O Civil.-Ff?
G= gq v i re rp? 1113 Vt d tr a w OP _ 49D/n , 1 hC ?- c P(cm ,
Rd, &N
?ew
UM
o? _ UPI ?OaG
To
Prothonotary
Attor ey for Plaintiff
RLa.D--t `i=r'C, No.
2001 APR - AN 10: 34
r ?
Filed
Term, 19 -
vs.
PRAECIPE
19
Atty.
COMMONWEALTH FINANCIAL
SYSTEMS, INC.,
Plaintiff
V.
GEORGE DOUTRICH,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 06-6364 CIVIL TERM
IN RE: MOTION TO OPEN JUDGMENT AND VACATE JUDGMENT
ORDER OF COURT
AND NOW, this 5th day of April, 2007, the Motion
of the Defendant to Open/Strike Judgment is denied.
By the Court,
--? '?Az
Kevin Hess, J.
,,?Kn R. Mege, Esquire /
For the Plaintiff
Xatthew J. Eshelman, Esquire
For the Defendant
lfh
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?:? \?-
??)
COMMONWEALTH FINANCIAL
SYSTEMS, INC.,
Plaintiff
GEORGE DOUTRICH
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - AT LAW
DOCKET No. 06 - 6364
PREVIOUSLY ASSIGNED TO: J. HESS
NOTICE OF APPEAL
Notice is hereby given that George Doutrich, defendant above named, hereby appeals to
the Superior Court of Pennsylvania from the ordered entered in this matter on the 5th day of April
2007 (the 5th day of May being a Saturday). This order has been entered in the docket as
evidenced by the attached copy of the docket entry.
Date: May 7, 2007
Matthew J. Eshelman, Esquire, Pa Id. 72655
P.O. Box 1080, Camp Hill, PA 17001-1080
(7t7) 395-8503 M.Eshelman@hotmail.com
Attorneys for Appellant George Doutrich
C a ? c?
co
PYS5'-=_ Cumberland County Prothonotary's Office Page 1
Civil Case Print
2006-06364 COMMONWEALTH FINANCIAL SYSTEMS (vs) DOUTRICH GEORGE
Reference No... Filed......... 10/31/2006
Case Type...... APPEAL - DJ
d Time..... 3.32
Ju
gment..... 11632.54 Execution Date 0/00/0000
Judge Assigned: HESS KEVIN A Jury Trial....
Disposed Desc.: Disposed Date. 0/00/0000
------------ Case Comments ------------- Higher Crt 1.:
Higher Crt 2.:
********************************************************************************
General Index Attorney Info
COMMONWEALTH FINANCIAL PLAINTIFF
SYSTEMS INC
120 N KEYSER AVENUE
SCRANTON PA 18504
DOUTRICH GEORGE DEFENDANT ESHELMAN MATTHEW J
441 MEADOW DRIVE
CAMP HILL PA 17011
********************************************************************************
Judgment Index Amount Date Desc
POUTRICH GEORGE 11,632.54 12/27/2006 FAILURE TO ANSWER
********************************************************************************
* Date Entries
FIRST ENTRY - - - - - - - - - - - - - -
10/31/2006 APPEAL FROM DISTRICT JUSTICE JUDGMENT
-------------------------------------------------------------------
10/31/2006 PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE
-------------------------------------------------------------------
11!/07/2006 PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT
-------------------------------------------------------------------
1-?/27/2006 COMPLAINT - BY ALAN R MEGE ATTY AFOR PLFF
-------------------------------------------------------------------
11,/27/2006 CERTIFICATE OF SERVICE - PLFF'S INTERROGATORIES - REQUEST FOR
PRODUCTION OF DOCUMENTS & REQUEST FOR ADMISSIONS - BY ALAN R MEGE
ATTY FOR PLFF
-------------------------------------------------------------------
12/27/2006 DEFT'S PRELIMINARY OBJECTIONS - BY VICKI PIONTEK ATTY FOR DEBTORS
-------------------------------------------------------------------
12/27/2006 PRAECIPE FOR DEFAULT JUDGMENT AND DEFAULT JUDGMENT ENTERED
IN THE AMOUNT OF $11632.54 BY ALAN R MEGE ESQ
-------------------------------------------------------------------
12./27/2006 NOTICE MAILED TO DEFENDANT
-------------------------------------------------------------------
12/27/2006 IMPORTANT NOTICE FILED (DEFAULT JUDGMENT) BY ALAN R MEGE ESQ
-------------------------------------------------------------------
12/27/2006 AFFIDAVIT OF NON MILITARY SERVICE BY ALAN R MEGE ESQ
-------------------------------------------------------------------
2/06/2007 MOTION TO OPEN JUDGMENT AND VACATE JUDGMENT - BY VICKI PIONTEK
ATTY FOR DEFT
-------------------------------------------------------------------
2/08/2007 PLAINTIFF'S REPLY TO DEFT'S PEITION TO OPEN - BY ALAN R MEGE ATTY
FOR PLFF
-------------------------------------------------------------------
2/22/2007 ORDER - 02-22-07 - IN RE: DEFT'S MOTION TO OPEN JUDGMENT AND
VACATE JUDGMENT - ORDERED:
1-RULE ISSUED UPON PLFF TO SHOW CAUSE WHY THE DEFT IS NOT
ENTITLED TO THE RELIEF REQUESTED
2-PLFF SHALL FILE AN ANSWER TO THE PETITION WITHIN 20 DAYS OF
SVC UPON HIM
3-PETITION SHALL BE DECIDED UNDER PA RCP 2006.7
4-DEPOSITIONS IF NECESSARY SHALL BE COMPLETED WITHIN 30 DAYS-OF
THIS DATE -
5-ARGUMENT SHALL BE HELD 04-05-07 AT 2 PM IN CR 4 CUMB CO
COURTHOUSE
6-NOTICE OF ENTRY OF THIS ORDER SHALL BE PROVIDED TO ALL
PARTIES BY DEFT'S ATTY
7-ALL MATTERS IN THIS MATTER ARE STAYED PENDING RESOLUTION OF
THIS RULE - BY KEVIN A HESS J - COPIES MAILED 02-22-07
PYS511 Cumberland County Prothonotary's Off4_ce Page 2
Civil Case Print
2006-06364 COMMONWEALTH FINANCIAL SYSTEMS (vs) DOUTRICH GEORGE
Reference No..: Filed......... 10/31/2006
Case Tyyppe..... : APPEAL - DJ Time...... . 3:32
Judgment......: 11632.54 Execution Date 0/00/0000
Judge Assigned: HESS KEVIN A Jury Trial....
Disposed Desc.: Disposed Date. 0/00/0000
------------ Case Comments ------------- Higher Crt 1.:
Higher Crt 2.:
-------------------------------------------------------------------
3/21/2007 PLAINTIFF'S MOTION TO COMPEL - BY ALAN R MEGE ATTY FOR PLFF
-------------------------------------------------------------------
3/28/2007 PLAINTIFF'S AMENDED MOTION TO COMPEL BY ALAN R MEGE ATTY
-------------------------------------------------------------------
3/30/2007 ORDER - 03-30-07 - IN RE: PLFF'S MOTION TO COMPEL IS GRANTED -
FURTHER ORDERED THAT DEFT MUST MAKE FULL AND COMPLETE ANSWERS TO
THE INTERROGATORIES WITHOUT OBJECTION OR MOTION FOR PROTECTIVE
ORDER WITHIN 30 DAYS OF THE SVC OF THIS ORDER OR APPROPRIATE
SANCTIONS WILL BE IMPOSED UPON DEFT FOLLOWING APPLICATION TO THIS
COURT - BY KEVIN A HESS J - COPIES MAILED 04-02-07
--------
4/04/2007 PRAECIPE -----------------------------------------------------------
FOR WITHDRAWAL OF APPEARANCE - BY VICKI PIONTEK ATTY FOR
DEFT
--------
4/04/2007 PRAECIPE --------------------
TO ENTER APPEARANCE --------------
- BY MATTHEW -------------------------
J ESHELMAN ATTY FOR DEFT
--------
4,'/12/2007 ORDER OF --------------------
COURT - 04-05-07 - --------------
IN RE: MOTION -------------------------
OF DEFT TO OPEN/STRIKE
JUDGMENT IS DENIED - BY KEVI N A HESS J - COPIES MAILED 04-12-07
- - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - -
**************************************** ****************************************
* Escrow Information
* Fees & Debits Beq
Bal P
ymts/Ad? End Bal
******************************** ***
*
*** *
* ****** ***** **************************
APPEAL D.J. 35.00 35.00 .00
TAX ON APPEAL .25 .25 .00
,SETTLEMENT 5.00 5.00 .00
AUTOMATION FEE 5.00 5.00 .00
JCP FEE 10.00 10.00 .00
JDMT 9.00
------- 9.00 .00
--------
64.25 --------- ----
64.25 --------
.00
********************************************************************************
* End of Case Information
********************************************************************************
'RUE (;0PY?k0 '7F'?
set my twu
T nony?+6 ?_
'd ft of ;?7:.: ,artiste, Pa.
T 6i Wa A1007
COMMONWEALTH FINANCIAL IN THE COURT OF COMMON PLEAS OF
SYSTEMS, INC., CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
CIVIL ACTION - AT LAW
GEORGE DOUTRICH DOCKET No. 06 - 6364
Defendant PREVIOUSLY ASSIGNED TO: J. HESS
REQUEST FOR TRANSCRIPT
A Notice of Appeal having been filed in the above-captioned matter, the official court
reporter is hereby ordered to produce, certify and file the transcript in this matter, with particular
reference being made to the hearing before the Court of April 5, 2007, in conformity with Rule
1922 of the Pennsylvania Rules of Appellate Procedure, and if so directed by the Court pursuant
to Rule 1925(b) of those Rules.
Date: May 7, 2007
Matthew J. Eshelman, Esquire, Pa Id. 72655
P.O. Box 1080, Camp Hill, PA 17001-1080
(717) 395-8503 M.Eshelmanr@hotmail.com
Attorneys for Appellant George Doutrich
{ , .
COMMONWEALTH FINANCIAL
SYSTEMS, INC.,
Plaintiff
GEORGE DOUTRICH
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - AT LAW
DOCKET No. 06 - 6364
PREVIOUSLY ASSIGNED TO: J. HESS
PROOF OF SERVICE
I hereby certify that I am this day serving the foregoing document upon the persons and
in the manner indicated below, which service satisfies the requirements of Pennsylvania Rule of
Appellate Procedure, Rule 121.
Service by first class mail addressed as follows:
Alan R. Mege, Esq.
70 East Broad Street
Bethlehem, PA 18016-1426
(Attorney for Plaintiff)
Service in person as follows:
Hon. Kevin A. Hess, J.
4th Floor, Cumberland County Courthouse
Carlisle, PA 17013
(Trial Judge)
Barb Graham
4th Floor, Cumberland County Courthouse
Carlisle, PA 17013
(Court Stenographer)
Date: May 7, 2007
Matthew J. Eshelman, Esquire, Pa Id. 72655
P.O. Box 1080, Camp Hill, PA 17001-1080
(717) 395-8503 M.Eshelman@hotmail.com
Attorneys for Appellant George Doutrich
C 5
-
-g-
o
w ?t
COMMONWEALTH OF PENNSYLVANIA
Karen Reid Brambiett, Esq.
Prothonotary
James D. McCullough, Esq.
Deputy Prothonotary
Superior Court of Pennsylvania
Middle District
May 10, 2007
100 Pine Street. Suite 400
Harrisbure. PA 17101
717-772-1294
www.superior. court. state.pa.us
Mr. Curtis R. Long
Prothonotary
Cumberland County Courthouse
1 Courthouse Square
Carlisle, PA 17013
Re: 794 MDA 2007
Commonwealth Financial Systems, Inc.
V.
George Doutrich, Appellant
Dear Mr. Long:
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.
Very truly yours,
Karen Reid Bramblett
Prothonotary
AAW
2:23 P.M.
Appeal Docket Sheet
Docket Number:
Page 1 of 2
May 10, 2007
794 MDA 2007
.si`r,.p sic.
Commonwealth Financial Systems, Inc.
V.
George Doutrich, Appellant
Initiating Document: Notice of Appeal
Case Status: Active
Case Processing Status: May 9, 2007
Journal Number:
Case Category: Civil
Awaiting Original Record
CaseType: Civil Action Law
Consolidated Docket Nos.: Related Docket Nos.:
SCHEDULED EVENT
Next Event Type: Receive Docketing Statement Next Event Due Date: May 24, 2007
Next Event Type: Original Record Received Next Event Due Date: June 18, 2007
COUNSEL INFORMATION
Appellant Doutrich, George
Pro Se: Appoint Counsel Status:
IFP Status: No
Appellant Attorney Information:
Attorney: Eshelman, Matthew J.
Bar No.: 72655 Law Firm:
Address: P.O. Box 1080
Camp Hill, PA 17001-1080
Phone No.: Fax No.:
Receive Mail: Yes
E-Mail Address:
Receive E-Mail: No
Appellee Commonwealth Financial Systems, Inc.
Pro Se: Appoint Counsel Status:
IFP Status:
Appellee Attorney Information:
Attorney: Mege, Alan R.
Bar No.: 81288 Law Firm:
Address: 70 E Broad Street
Bethlehem, PA 18016-1426
Phone No.: (610)954-5393 Fax No.: (610)954-5395
Receive Mail: Yes
E-Mail Address: alanm_esq@juno.com
Receive E-Mail: No
Superior Court of Pennsylvania
5/10/2007
3023
2:23 P.M.
Appeal Docket Sheet
Docket Number: 794 MDA 2007
Page 2 of 2
May 10, 2007
Superior Court of Pennsylvania
FEE INFORMATION
Paid
Fee Date Fee Name Fee Amt Amount Receipt Number
5/7/07 Notice of Appeal 60.00 60.00 2007SPRMD000406
TRIAL COURT/AGENCY INFORMATION
Court Below: Cumberland County Court of Common Pleas
County: Cumberland Division: Civil
Date of Order Appealed From: April 5, 2007 Judicial District: 9
Date Documents Received: May 9, 2007 Date Notice of Appeal Filed: May 7, 2007
Order Type: Order Entered OTN:
Judge: Hess, Kevin A.
Judge
Lower Court Docket No.: 06-6364
ORIGINAL RECORD CONTENTS
Original Record Item Filed Date Content/Description
Date of Remand of Record:
BRIEFS
DOCKET ENTRIES
Filed Date Docket Entry/Document Name Party Type Filed By
May 9, 2007 Notice of Appeal Filed
Appellant Doutrich, George
May 10, 2007 Docketing Statement Exited (Civil)
Middle District Filing Office
5/10/2007 3023
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COMMONWEALTH FINANCIAL : IN THE COURT OF COMMON PLEAS OF
SYSTEMS, INC. CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
VS.
GEORGE DOUTRICH,
Defendant
: CIVIL ACTION - LAW
NO. 06-6364 CIVIL
IN RE: APPEAL OF DEFENDANT
ORDER
AND NOW, May 11, 2007, in accordance with Rule 1925 of the Rules of Appellate
Procedure, the Defendant having filed a notice of appeal, the appellant is directed to file of
record, within fourteen (14) days hereof, and serve upon the undersigned a concise statement of
the matters complained of on the appeal.
BY THE COURT,
01
Hess, J.
Alan R. Mege, Esquire
For the Plaintiff
Matthew J. Eshelman, Esquire
For the Defendant
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COMMONWEALTH FINANCIAL
SYSTEMS, INC.,
Plaintiff
GEORGE DOUTRICH
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - AT LAW
DOCKET No. 06 - 6364
PREVIOUSLY ASSIGNED TO: J. HESS
CONCISE STATEMENT OF
MATTERS COMPLAINED OF ON APPEAL
The above-captioned matter having been appealed to the Superior Court of Pennsylvania,
and docketed therein at 794 MDA 2007, from the ordered entered in this matter on the 5th day of
April 2007, and the trial court having requested the appellant to file a Concise Statement of
Matters Complained of on Appeal, Appellant George Doutrich submits the following proposed
findings of fact, procedural history and questions of law:
1. Defendant George Doutrich ("Doutrich") was initially represented in the above-
captioned matter by Vicki Piontek ("Prior Counsel").
2. On October 31, 2006, Prior Counsel filed an appeal from a Magisterial District
Judgment entered in Plaintiff's favor and against Doutrich.
3. On November 27, 2006, Plaintiff Commonwealth Financial Systems, Inc.,
("CFSI"), in response to the Rule to File Complaint, filed a Complain sounding in assumpsit to
collect outstanding amounts due under various consumer credit card accounts. See CFSI's
Complaint.
4. CFSI's Complaint included a notice to defend requiring a written response by
Doutrich within twenty days from the date of service.
5. The Certificate of Service attached to the Complaint indicates it was placed in the
U.S. mail on November 20, 2006. (See Pa. R. Civ. P., Rule 440 - service of legal papers other
than original process may be made by U.S. mail to a parties' attorney of record and is complete
upon mailing.)
6. The original of the Complaint was received by the Prothonotary and docketed on
November 27, 2006.
7. On December 11, 2006, CFSI sent via U.S. mail a ten-day notice required by Rule
237.1 prior to entry of judgment by default.
8. On December 20, 2006, Prior Counsel deposited in the U.S. mail a two-sentence,
written response captioned "Defendant's Preliminary Objections" which asserted that CFSI's
Complaint is time-barred by the applicable statute of limitations (as assertion which CFSI
denies).
9. On or about December 22, 2006, CFSI deposited a Praecipe to Enter Judgment by
Default per Rule 1037(b) in the U.S. mail.
10. On December 27, 2006, the Defendant's Preliminary Objections were received in
the Office of the Prothonotary and time-stamped at 10:49 o'clock a.m.
11. Ostensibly in the same mail-delivery, on December 27, 2006, the Praecipe to
Enter Judgment by Default was received in the Office of the Prothonotary and time-stamped at
10:53 o'clock a.m.
12. Judgment was entered by default against Doutrich and in favor of CFSI in the
amount of $11,632.54 on December 27, 2006.
13. On February 1, 2007, Prior Counsel executed and deposited in the U.S. mail a
"Motion to Open and Vacate Judgment."
14. The Motion was received and docketed by the Prothonotary on February 6, 2007.
15. Doutrich has asserted and maintains that he has a meritorious affirmative defense
to the matters complained of in CFSI's Complaint.
16. The written response to Plaintiff's Complaint was time-stamped four minutes
before the Praecipe to Enter Judgment, and therefore received either prior to or simultaneously
with the Praecipe.
17. Preliminary Objections must be filed within twenty days of service of the
Complaint; however, if the written response is deemed an inartfully pled Answer, then
Doutrich's argument regarding the statute of limitations still has merit, even if all of the factual
allegations raised in Plaintiff's Complaint are deemed to be true for Prior Counsel's failure to
deny them.
Date: May 25, 2007
Matthew J. Esheln4an, Esquire, Pa Id. 72655
P.O. Box 1080, Camp Hill, PA 17001-1080
(717) 395-8503 M.Eshelman@hotmail.com
Attorneys for Appellant George Doutrich
COMMONWEALTH FINANCIAL IN THE COURT OF COMMON PLEAS OF
SYSTEMS, INC., CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
CIVIL ACTION - AT LAW
GEORGE DOUTRICH DOCKET No. 06 - 6364
Defendant PREVIOUSLY ASSIGNED TO: J. HESS
PROOF OF SERVICE
I hereby certify that I am this day serving the foregoing document upon the persons and
in the manner indicated below, which service satisfies the requirements of Pennsylvania Rule of
Appellate Procedure, Rule 121.
Service by first class mail addressed as follows:
Alan R. Mege, Esq.
70 East Broad Street
Bethlehem, PA 18016-1426
(Attorney for Plaintiff)
Respectfully bm'tted
Date: May 25, 2007
Matthew J. Eshelman, Esquire, Pa Id. 72655
P.O. Box 1080, Camp Hill, PA 17001-1080
(717) 395-8503 M.Eshelman@hotmail.com
Attorneys for Appellant George Doutrich
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COMMONWEALTH FINANCIAL : IN THE COURT OF COMMON PLEAS OF
SYSTEMS, INC. CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
: CIVIL ACTION - LAW
VS.
NO. 06-6364 CIVIL
GEORGE DOUTRICH,
Defendant
IN RE: OPINION PURSUANT TO RULE 1925
In this case, the defendant has appealed from our order denying his motion to open or, in
the alternative, to "vacate" a judgment. The underlying facts as set forth in the plaintiff's
complaint are as follows.
Defendant received a Direct Merchants Bank and a Household Bank credit card. (Compl.
¶ 3, 23.) Metris Companies, Inc., the parent corporation of Direct Merchants Bank, sold the
Direct Merchants Bank account to Jefferson Capitol Systems, who sold it to Collins Financial
Services, Inc., who sold it to the plaintiff. (Compl. ¶ 8.) Household Bank sold the Household
Bank account to CACV, Inc., who sold it to Unifund CCR Partners, who sold it to the plaintiff.
(Compl. ¶ 28.) As of August 31, 2006, the defendant owed the plaintiff $6,570.65 for the Direct
Merchants card and $2,729.73 for the Household Bank card. (Compl. ¶ 12, 32.)
On November 27, 2006, the plaintiff filed a complaint alleging breach of contract and
unjust enrichment, seeking to recover the outstanding balance of each credit card plus attorney's
fees. (Compl. ¶ 3-12, 17-19, 23-32). On December 11, 2006, the plaintiff sent a notice to the
defendant's counsel of intent to take a default judgment. Having had no indication that an
answer was filed, the plaintiff forwarded a praecipe for the entry of judgment by default which
was clocked in by the Prothonotary on December 27, 2006, at 10:53 a.m. In the meantime, the
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defendant had forwarded preliminary objections which were clocked in by the Prothonotary on
December 27, 2006, at 10:49 a.m. The defendant's preliminary objections contained a single
averment to the effect that the plaintiff s suit was barred by the statute of limitations. Because,
under the circumstances, we are satisfied that the exact timing of the clocking in of the
documents was happenstance, we have dealt with this matter as if the taking of default judgment
and the filing of preliminary objections occurred simultaneously.
We will treat the defendant's motion to "vacate" the judgment as a motion to strike.
Under Pennsylvania law, "a petition to strike a judgment is a common law proceeding which
operates as a demurrer to the record." Resolution Trust Corp. v. Copley Qu-Wayne Associate,
546 Pa. 98, 106, 683 A.2d 269, 273 (1996). Courts may only grant a motion to strike a judgment
where a fatal defect or irregularity appears on the face of the record. See id. In this case, default
judgment was entered at the same time preliminary objections were filed. The preliminary
objections, however, raised the statute of limitations. Under Rule 1030 of the Pennsylvania
Rules of Civil Procedure, an affirmative defense that a claim is barred by the statute of
limitations "shall be pleaded in a responsive pleading under the heading `New Matter."'
Pa.R.C.P. 1030. It is well established that the statute of limitations is not properly raised by
preliminary objection. See Devine v. Hutt, 863 A.2d 1160, 1167 (Pa.Super. 2004). Normally
speaking, when the statute of limitations is improperly raised by preliminary objections, the
proper challenge is to seek to strike the defendant's preliminary objections for failure to conform
to rule of court. Id. In this case, however, the defective preliminary objections were filed at the
same time that default judgment was entered. Given the unique facts of this case, we cannot
conclude that there is a fatal defect or irregularity on the face of the record.
•
In addition to his motion seeking to "vacate" the judgment, the defendant has filed a
motion to open same. A decision to open a default judgment is within the sound discretion of the
trial court. See Shufesky v. City of Erie, 624 A.2d 715, 716 (Pa.Cmwlth. 1993). In order to grant
a petition to open a default judgment, three criteria must be met: (1) the petition to open must be
promptly filed; (2) there must a reasonable excuse for failure to respond; and (3) a meritorious
defense must be set forth. Id.
Pennsylvania courts have yet to establish a bright-line rule to be used in determining the
promptness of a petition to open. See generally Pappas v. Stefan, 451 Pa 354, 304 A.2d 143
(1973); Texas & Block H.F. & G. Club v. Bonnell Run H. & F Corp., 388 Pa. 198,130 A.2d 508
(1957); Schutte v. Vallen Bargain Center, Inc., 248 Pa. Super. 532, 375 A.2d 368 (1977);
Hatgimisios v. Daves's N.E. Mint, Inc., 251 Pa. Super. 275, 380 A.2d 485 (1977). The courts
have found petitions to open were properly denied where they were filed after twenty-seven
days, Texas & Block H.F & G Club, 388 Pa. at 203, 130 A.2d at 511; thirty-seven days,
Hatgimisios, 251 Pa. Super. at 276, 380 A.2d at 486; forty-seven days, Schutte, 248 Pa. Super. at
537, 375 A.2d at 371; and sixty-five days, Pappas, 451 Pa. at 358, 304 A.2d at 146, after notice
of default judgment was communicated to petitioner.
In the instant case, default judgment was granted for the plaintiff on December 27, 2006;
The defendant's motion to open was filed February 6, 2007. This is a delay of forty-one days
between the entering of the default judgment and the filing of the defendant's motion to open.
No explanation was given by the defense as to the circumstances surrounding the delay. While
the defendant is currently represented by a different attorney, this did not happen until after his
petition to open was filed. We are satisfied that the petition to open was not timely filed.
Y . •
Even assuming that the defendant's motion to open was prompt, the defendant failed to
provide any excuse for his failure to file a timely answer. As stated previously, Rule 1030 of the
Pennsylvania Rules of Civil Procedure provides that an affirmative defense of the statute of
limitations must be pleaded as a responsive pleading under the heading of "New Matter."
Pa.R.C.P. 1030. The application of this rule to this case is particularly apropos because no
answer was filed providing dates and timeframes material to this case. It is impossible,
therefore, to determine that the affirmative defense is meritorious. Thus, the defendant's petition
to open fails on all three of the requirements necessary to grant relief.
July 18, 2007
Kevin Hess, J.
/"Ian R. Mege, Esquire
For the Plaintiff
,Matthew J. Eshelman, Esquire
For the Defendant -?
:rlm
CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER
)
PENNSYLVANIA RULE OF APPELLATE PROCEDURE 19311C
To the Prothonotary of the Apellate Court to which the within matter has been appealed:
SUPERIOR COURT OF PENNSYLVANIA
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:
COMMONWEALTH FINANCIAL SYSTEMS, INC.
VS
GEORGE DOUTRICH
2006-6364 CIVIL TERM
794 MDA 2007
The documents comprising the record have been numbered from No.1 to 95, 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 07- d3 -2007
Curti R. Long, Prothonotary
Regina K. Lebo, Deputy
An additional co of this certificate is enclosed. Please sin and date copy, there b
acknowledEin2 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 Ctmrberland in the Commonwealth of Pennsylvania
794 NDA 2007
to No. 2006-6364 Civil Term Term, 19 is contained the following:
COPY OF Appearance DOCKET ENTRY
Commonwealth Financial Systems, Inc.
VS.
George Doutrich
** See certified copy of docket entries**
Commonwealth of Pennsylvania
County of Cumberland
ss:
I, Curtis R. Long , Prothonotary
of the Court of Common Pleas in and for said
County, do hereby certify that the foreg ing is a
full, true and correct copy of the whole reco> d of the
case therein stated, wherein
Ccmmnwealth Financial Svstgo
Inc.
Plaintiff, and George Doutrich
In TESTIMONY WHEREOF, I have hereunto
this C;) -l
Defendant , as the same remains of record
before the said Court at No. 2006-63641 f
Civil Term, A. D. 19{ ?.
set my hand and affixed the seal of said Court
da of 4UIV 'Q A. D.,2DIlZ.
Prothonotary
1, raga-17 Fi_ 139y 1p,Y President Judge of the Ni hth
Judicial District, composed of the County of Cumberland, do certify that
Dir+is R_ Tong by whom the annexed record, certificate and
attestation were made and given, and who, in his own proper handwriting, thereunto subscribed hid 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 Ctanberland in
the Commonwealth of Pennsylvania, duly commissioned and qua ' ' Il of whose acts as such full faith
and credit are and ought to be given as well in Courts of Judi ure as else t the said riecord,
certificate and attestation are in due form of law and mad bA the. oro rr{ off
v
Commonwealth of Pennsylvania
County of Cumberland ss:
1, Curtis R. Long Prothonotary bf the Court of Common Pleas in
and for the said County, do certify that the Honorable FAgar R. Bayley
by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at th 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, 1 have hereunto
set m and and affixed the seal of said Court this
?j day o Jul A. D. W2007
R
Prothonotary
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PYS511 Cumberland County Prothonotary's Office Page 1
Civil Case Print
2006-06364 COMMONWEALTH FINANCIAL SYSTEMS (vs) DOUTRICH GEORGE
Reference No..: Filed........: 10/31/2006
Case Type.....: APPEAL - DJ Time........ 3:32
Judgment..... : 11632.54 Execution Date 0/00/0000
Judge Assigned: HESS KEVIN A Jury Trial.'..
Disposed Desc.: Disposed Da?e. 0/00/0000
------------ Case Comments ------------- Higher Crt 794 MD 2007
Higher Crt ?.:
General Index Attorney Info
COMMONWEALTH FINANCIAL PLAINTIFF
SYSTEMS INC
120 N KEYSER AVENUE
SCRANTON PA 18504
,
DOUTRICH GEORGE DEFENDANT ESHELMAN MATTHEW J
441 MEADOW DRIVE
CAMP HILL PA 17011
Judgment Index Amount Date Desc
DOUTRICH GEORGE 11,632.54 12/27/2006 FAILURE TO ANSWER
* Date Entries
- - - - - - - - - - - - - FIRST ENTRY - - - - - - --- - - - - - -
r- a --
10/31/2006 APPEAL R DISTRICT JUSTICE 10/31/2006 PRAECIPE - - - - TO - - -ENTERRULE TOFILE UCOMPLAINT AND RULE TO V - -
ILE
------------------------------------------------------i-------------
j-j 11/07/2006 PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE (COMPLAINT
-------------------------------------------------------------------
(r-3 11/27/2006 COMPLAINT - BY ALAN R MEGE ATTY AFOR PLFF
-------------
311 PRODUCTION EOFFFDOCUMENTS SERVICE PLFFIS INTERROGATORIES REQUEST FOR
ATTY FOR PLFF
35-3'7 -----------------------------------------------
--------------
12/27/2006 DEFT'S PRELIMINARY OBJECTIONS - BY VICKI PIONTEK ATTY OR DEBTORS
- - - - - - - - - - - -
12/27/2006 PRAECIPE FOR DEFAULT JUDGMENT AND DEFAULT JUDGMENT ENT RED
IN THE AMOUNT OF $11632.54 BY ALAN R MEGE ESQ
-------------------------------------------------------------------
12/27/2006 NOTICE MAILED TO DEFENDANT
------------------------------------------------------I----
12/27/2006 IMPORTANT NOTICE FILE(DEFAULT JUDGMENT) BYALAN RMEGE - -ESQ -------
------------------------------------------------------ -------
ljj7-?l 12/27/2006 AFFIDAVIT OF NON MILITARY SERVICE BY ALAN R MEGE ESQ
------ ------ -------- --------- -------- ---
y1j-y 2/06/2007 MOTION-TO-OPEN-JUDGMENT-AND-VACATE-JUDGMENT- - -BY-VICKI ?IONTEK
ATTY FOR DEFT
------------------------------------------------------ ------
2/08/2007 PLAINTIFF'S REPLY TO DEFT'S PEITION TO OPEN - BY ALAN R'IMEGE ATTY
FOR PLFF
------------------------------------------------------- -----------
tl,:24/.? 2/22/2007 ORDER 02-22-07 IN RE: DEFT IS MOTION TO OPEN JUDGMENT AND
VACATE JUDGMENT - ORDERED: i
1-RULE ISSUED UPON PLFF TO SHOW CAUSE WHY THE DEFT IS NOT
ENTITLED TO THE RELIEF REQUESTED
2-PLFF SHALL FILE AN ANSWER TO THE PETITION WITHIN 20 DAYS OF
SVC UPON HIM
3-PETITION SHALL BE DECIDED UNDER PA RCP 2006.7
4-DEPOSITIONS IF NECESSARY SHALL BE COMPLETED WITHINI30 DAYS OF
THIS DATE
5-ARGUMENT SHALL BE HELD 04-05-07 AT 2 PM IN CR 4 CURB CO
CO TNOTI
6 CE OF ENTRY OF THIS ORDER SHALL BE PROVIDED TO 4LL
PARTIES BY DEFT'S ATTY
7-ALL MATTERS IN THIS MATTER ARE STAYED PENDING RESOLUTION OF
THIS RULE - BY KEVIN A HESS J - COPIES MAILED 02-22-07
I'
PYS511 Cumberland County Prothonotary's Office Page 2
Civil Case Print
2006-06364 COMMONWEALTH FINANCIAL SYSTEMS (Vs) DOUTRICH GEORGE
Reference No... Filed......... 10/31/2006
Case Type...... APPEAL - DJ Time. ... . : 3:32
Judgment......: 11632.54 Execution Date* 0/00/0000
Judge Assigned: HESS KEVIN A Jury Trial....
Disposed Desc.: Disposed Dade. 0/00/0000
------------ Case Comments ------------- Higher Crt 1.: 794 MD 2007
Higher Crt 7.:
--- --------------
-PLFF
v53-S-5 3/21/2007 PLAINTIFF'S MOTION TO COMPEL --BY- -ALAN- R - -MEGE ATTY FOR
-----------
---------- - - - - - - - - ------ - - - - ----- -
-------------------------------------------------- Sj,-57 3/28/2007 PLAINTIFF S-AMENDED-MOTION-TO-COMPEL-BY-ALAN - R - MEGE -- TTY
-----------------
?j 3/30/2007 FORDER - URTHER ORDERED 7THAT NDERE: PLFFS FT MUST1MAKETFULL TANDOCOMPLETEGANSWERS TO
THE INTERROGATORIES WITHOUT OBJECTION OR MOTION FOR P OTECTIVE
ORDER WITHIN 30 DAYS OF THE SVC OF THIS ORDER OR APPR PRIATE
SANCTIONS WILL BE IMPOSED UPON DEFT FOLLOWING APPLICA ION TO THIS
COURT - BY KEVIN A HESS J - COPIES MAILED 04-02-07
---------------t------------------------------------- ------ ------
4/04/2007 DPREAFTCIPE FOR WITHDRAWAL OF APPEARANCE - BY VICKI PIONEK ATTY FOR
----------------------------------------------------- -------------
4 /04/2007 PRAECIPE TO ENTER APPEARANCE - BY MATTHEW J ESHELMAN- TTY FOR DEFT
--------------------------------------------------- -------------
4/12/2007 ORDER OF COURT - 04-05-07 - IN RE: MOTION OF DEFT TO PEN/STRIKE
JUDGMENT IS DENIED - BY KEVIN A HESS J - COPIES MAILE 04-12-07
------ --------
(?D !v?{ 5/07/2007 NOTICE-OF-APPEAL-TO-SUPERIOR COURT - BY MATTHEW J ESH LMAN-ATTY ----
FOR DEFT
------------------------------------------------------I-------------
5/11/2007 SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO #79,4 MDA 2007
-------------------------------------------------------------------
jy 5/15/2007 ORDER - 05-11-07 - IN RE: APPEAL OF DEEFT - APPELLANT ',DIRECTED TO
FILE A RECORD WITHIN 14 DAYS AND SERVE UPON THE UNDERSIGNED A
CONCISE STATEMENT OF MATTERS COMPLAINT OF ON THE APPEAL - BY KEVIN
A HESS J - COPIES MAILED 05-15-07
-----------------------------------------------------
-7,-? 5/25/2007 CONCISE STATEMENT OF MATTERS COMPLAINED OF ON APPEAL -'BY MATTHEW
J ESHELMAN ATTY FOR APPELLANT GEORGE DOUTRICH
-------------------------------------------------------------------
-2 3-91 6/14/2007 TRANSCRIPT OF PROCEEDINGS - 04-05-07 - BY KEVIN A HESS J
------------------------------------------------------
7/09/2007 7/09/2007 HONORABLE TRANSCRIPT KEVIN FILED - IN HESSRJ:ONRAPRILI5T2007AT PROCEEDINGS :00 PM IN COURTROOM
NO 4 - BY KEVIN A HESS J - DATED JUNE 13 2007
------- ------------- ------- ------ ---- ------+---------
q`?U 7/18/2007 OPINION- - -IN-RE:-OPINION-PUSUANT-TO-FILE-1925- - -BY-KEVIN - A - HESS - J
- COPIES MAILED 07-18-07
-------------------------------------------------------+------------
7/23/2007 NOTICE OF DOCKET ENTRIES MAILED TO ALAN R MEGE ESQ
MATTHEW J ESHELMAN $SQ
- - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - -
* Escrow Information
* Fees & Debits Beq Bal Pmts/Ad' End Bal
APPEAL D.J. 35.00 35.00 .00
TAX ON APPEAL .25 .25 .00
SETTLEMENT 5.00 5.00 .00
AUTOMATION FEE 5.00 5.00 .00
JCP FEE 10.00 10.00 .00
JDMT 9.00 9.00 .00
APPEAL HIGH CT 48.00
------ 48.00
---------- --- .00
---------
--------
112.25 112.25 .00
* End of Case Information
********************************************************************************
TRUr
In Testimony whrr set my hand
and the seal of said c-Di) t at Carlisle, Pa.
This .................. day of.. ........
Prothonota
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH FINANCIAL
SYSTEMS, INC.
Plaintiff : No. 06-6364
VS.
GEORGE DOUTRICH,
Defendant
: CIVIL ACTION
PLAINTIFF'S MOTION FOR SANCTIONS
And now comes Plaintiff and submits the instant Motion for Sanctions, and in support
thereof avers as follows:
1. Judgment for Plaintiff and against Defendant in the sum of $11,632.54 plus costs was
entered in Cumberland County on December 27, 2006.
2. Plaintiff served Interrogatories in Aid of Execution upon Defendant, via first class
mail on February 6, 2007.
3. Pursuant to Pa.R.C.P. 4006 (a) (2), Defendant's responses to the Interrogatories were
due within thirty days after they had been served, but none has been received as of the date of
giving notice herein.
4. After notice, a Motion to Compel was filed and an Order entered on March 30, 2007
requiring Defendant, within twenty(20) days, to make full and complete answers to
Interrogatories. A true and correct copy of the March 30, 2007 Order is attached as Exhibit "A"
5. As of February 14, 2008, Plaintiff has not received Defendant's answers to
Interrogatories.
6. A copy of this Motion and proposed Order was sent to Defendant on February 14,
2008. A Certificate of Service is attached hereto.
7. Judge Hess has ruled upon Plaintiffs Motion to Compel.
8. Counsel for Defendant is in opposition of this Motion.
WHEREFORE, Plaintiff, requests that this Honorable Court grant its motion and
Order that the Defendant shall pay a daily fine of $25.00 to the use of Plaintiff until Defendant
complies with this Court's Order of March 30, 2007 and Defendant shall also pay $100.00
attorney's fees to Plaintiff within twenty (20) days of the date of this Order or appropriate
sanctions will be imposed upon Defendant following application to this Court,
an R. Mege,
Attorney ID o. 81288
Attorney for Plaintiff
PO Box 1426
Bethlehem, PA 18016-1426
(610) 954-5393
-2-
MAR 2 2 ?,,;el
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH FINANCIAL
SYSTEMS, INC.
Plaintiff
VS.
GEORGE DOUTRICH,
Defendant
: No. 06-6364-Civil Term
: CIVIL ACTION
ORDER
AND NOW, this o h day o " , 2007, upon consideration of Plaintiff s
Motion to Compel, and Defendant's response thereto, if any, it is hereby
ORDERED that Plaintiff s Motion is GRANTED; and
IT IS FURTHER ORDERED that Defendant must make full and complete answers to the
interrogatories, without objection or motion for protective order, within ays of the Sef ice.
.A-Amf this Order or appropriate sanctions will be imposed upon Defendant following application
to this Court.
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Distribution:
RECORD
-et my hand
Pa.
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Alan R. Mege, Esq., 70 E Broad St., Bethlehem, PA 18016
Vicki Piontek, Esq., C/O George Doutrich, 24 West Governor Rd., Hershey, PA 17033
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COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH FINANCIAL
SYSTEMS, INC.
Plaintiff : No. 06-6364
VS.
CIVIL ACTION
GEORGE DOUTRICH,
Defendant
CERTIFICATE OF SERVICE
I, Alan R. Mege, Esquire, hereby certify that on February 14, 2008, I served upon
Defendant, a true and correct copy of Plaintiffs Motion for Sanctions and proposed Order by mailing
same, first class, postage prepaid to: Matthew J. Eshelman, PO Box 1080, Camp Hill, PA 17001.
By:
Atty. I.D. #8128V
Attorney for Plaintiff
P.O. Box 1426
Bethlehem, PA 18016-1426
(610) 954-5393
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COMMONWEALTH FINANCIAL IN THE COURT OF COMMON PLEAS OF
SYSTEMS, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff :
Vs.
GEORGE DOUTRICH,
Defendant
CIVIL ACTION - LAW
NO. 06-6364
IN RE: PLAINTIFF'S MOTION FOR SANCTIONS
ORDER
AND NOW, this Z G ' day of February, 2008, a brief argument on the within
motion for sanctions is set for Thursday, April 17, 2008, at 1:30 p.m. in Courtroom Number 4,
Cumberland County Courthouse, Carlisle, PA.
BY THE COURT,
? Alan R. Mege, Esquire
For the Plaintiff
Matthew J. Eshelman, Esquire
For the Defendant
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Superior Court of Pennsylvania
Karen Reid Bramblett, Esq. Middle District
Prothonotary
James D. McCullough, Esq. February 14, 2008
Deputy Prothonotary
Certificate of Remittal/Remand of Record
TO: Mr. Curtis R. Long
Prothonotary
RE: Com. Financial Sys. v. Doutrich, G.
No.794 MDA 2007
Trial Court/Agency Dkt. Number: 06-6364
Trial Court/Agency Name: Cumberland County Court of Common Pleas
Intermediate Appellate Court Number:
100 Pine Street. Suite 400
Harrisburg, PA 17101
717-772-1294
www. superior. court. state.pa.us
Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572
is the entire record for the above matter.
Contents of Original Record:
Original Record Item
Part
Date of Remand of Record:
Filed Date Description
July 24, 2007 1
MAR 2 4 2008
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.
JamesAyMcCullough, Esq:
Deputy Prothonotary
Signature
Date
Printed Name
`Z' =rE
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J.SO4029/08
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH FINANCIAL SYSTEMS IN THE SUPERIOR COURT OF
INC., PENNSYLVANIA
Appellee
VS.
GEORGE DOUTRICH,
Appellant No. 794 MDA 2007
Appeal from the Order entered April 5, 2007
In the Court of Common Pleas of Cumberland County
Civil, No. 06-6364
BEFORE: LALLY-GREEN, GANTMAN, JJ., AND MCEWEN, P.J.E.
MEMORANDUM: FILED: February 14, 2008
Appellant, George Doutrich, appeals from the order of the Cumberland
County Court of Common Pleas, which denied Appellant's motion to vacate
and/or open a default judgment entered in favor of Appellee, Commonwealth
Financial Systems, Inc. ("CFS").1 We affirm.
The trial court opinion sets forth the relevant facts and procedural
history of this case as follows:
[Appellant] received a Direct Merchants Bank and a
Household Bank credit card. Metris Companies, Inc., the
parent corporation of Direct Merchants Bank, sold the
1 The trial court's order denied Appellant's motion to vacate and/or open the
default judgment in its entirety. Rule 311 provides for immediate review of
an order refusing to open a default judgment. See Pa.R.A.P. 311 (a)(1).
Thus, there is no jurisdictional impediment to our review of Appellant's
appeal.
J.SO4029/08
Direct Merchants Bank account to Jefferson Capitol
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J.S04029/08
Systems, who sold it to Collins Financial Services, Inc.,
who sold it to [CFS]. Household Bank sold the Household
Bank account to CACV, Inc., who sold it to Unifund CCR
Partners, who sold it to [CFS]. As of August 31, 2006,
[Appellant] owed [CFS] $6,570.65 for the Direct Merchants
card and $2,729.73 for the Household Bank card.
On November 27, 2006, [CFS] filed a complaint alleging
breach of contract and unjust enrichment, seeking to
recover the outstanding balance of each credit card plus
attorney's fees. On December 11, 2006, [CFS] sent a
notice to [Appellant's] counsel of intent to take a default
judgment. Having had no indication that an answer was
filed, [CFS] forwarded a praecipe for the entry of judgment
by default, which was clocked in by the Prothonotary on
December 27, 2006, at 10:53 a.m. In the meantime,
[Appellant] had forwarded preliminary objections, which
were clocked in by the Prothonotary on December 27,
2006, at 10:49 a.m. [Appellant's] preliminary objections
contained a single averment to the effect that [CFS'] suit
was barred by the statute of limitations.
(Trial Court Opinion, dated July 18, 2007, at 1-2). On February 6, 2007,
Appellant filed his motion to strike and/or open the default judgment. On
April 5, 2007, the court held a hearing after which the court denied
Appellant's request for relief, by order entered on the docket on April 12,
2007. Appellant filed this timely appeal on May 7, 2007. By order dated
May 11, 2007, but not entered and served until May 15, 2007, the court
directed Appellant to file a concise statement of matters complained of on
appeal pursuant to Rule 1925(b). Appellant timely filed his statement on
May 25, 2007.
Appellant raises the following issue for our review:
DID THE FILING OF A WRITTEN RESPONSE BY
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[APPELLANT'S] PRIOR COUNSEL SUFFICE TO FORESTALL
THE ENTRY OF JUDGMENT BY DEFAULT AGAINST
[APPELLANT] UNDER Pa.R.C.P. 237.1, ET SEQ.?
(Appellant's Brief at 2).
Appellant argues the timing of the filing of his preliminary objections
before CFS filed its praecipe for entry of the default judgment constitutes a
fatal defect on the face of the record; and the court should have granted his
motion to strike the default judgment. Although Appellant inappropriately
raised the affirmative defense of the statute of limitations in preliminary
objections, he claims the court abused its discretion by failing to review the
merits of his affirmative defense when it decided Appellant's motion to open
the default judgment. Appellant concludes the court should have granted
his motion to strike and/or open the default judgment. We disagree.
With respect to a motion to strike a default judgment, this Court has
said:
The rules of civil procedure authorize the prothonotary to
enter a judgment of default upon receipt of the plaintiff's
praecipe when the defendant has failed to file a pleading to
the complaint within the required time. Pa.R.C.P. 1037(b).
A petition to strike a default judgment is appropriately
granted in instances where there is a fatal defect or
irregularity that is apparent from the face of the record.
Stauffer v. Hevener, 881 A.2d 868, 870 (Pa.Super.
2005). In such instances a prothonotary will be held to
have lacked the authority to enter default judgment and
the default judgment will be considered void. See
Fountainville Historical Farm [Assn of Bucks County,
Inc.] v. [Bucks County], 490 A.2d 845, 848 ([Pa.Super.]
1985).
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J.S04029/08
State Farm Ins. Co. v. Barton, 905 A.2d 993, 994 (Pa.Super. 2006).
In State Farm, a motor vehicle accident occurred between the
defendant and the insured. Following the accident, State Farm, as subrogee
of the insured, filed and timely served a complaint against the defendant,
who timely filed preliminary objections in response. Thereafter, State Farm
filed and served the defendant with an amended complaint. Approximately
one year later, on September 12, 2005, State Farm served its notice of
intent to file a praecipe for entry of a default judgment against the
defendant. The defendant then filed preliminary objections to State Farm's
amended complaint on September 23, 2005. The court entered an order
scheduling argument on the defendant's preliminary objections for October
26, 2005. Before the court heard oral argument, however, State Farm filed
for a praecipe for entry of a default judgment on September 29, 2005. On
that same day, the prothonotary entered a default judgment against the
defendant. In response, on October 18, 2005, the defendant filed a motion
to strike the default judgment, but the court denied relief.
On appeal, this Court reversed and held the entry of a default
judgment in favor of State Farm was in error, because the defendant's
preliminary objections had already been filed of record. Id, at 995. The
entry of a default judgment five days after the filing of the preliminary
objections constituted a fatal defect on the face of the record. Id. Thus, the
trial court erred in denying the defendant's motion to strike the default
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J.SO4029/08
judgment. Id. Pursuant to State Farm, once a responsive pleading is filed
and recorded, even if it is untimely, a default judgment cannot be entered
because the responding party is no longer in default. Id. Entry of a default
judgment when a responding party is no longer in default represents a
defect on the face of the record. Id. In that event, the court should grant a
motion to strike the default judgment. Id.
With respect to a petition to open a default judgment, the decision to
grant or deny relief is a matter of judicial discretion. Schultz v. Erie Ins.
Exchange, 505 Pa. 90, 477 A.2d 471 (1984). A petition to open a default
judgment is an appeal to the court's equitable powers, and absent an error
of law or an abuse of discretion, this Court will not disturb that decision on
appeal. Reid v. Boohar, 856 A.2d 156 (Pa.Super. 2004).
Judicial discretion requires action in conformity with law on
facts and circumstances before the trial court after hearing
and consideration. Consequently, the court abuses its
discretion if, in resolving the issue for decision, it
misapplies the law or exercises its discretion in a manner
lacking reason.
Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super. 2000)
(internal citations omitted).
Where a petition to open a default judgment is not filed within ten (10)
days of entry of the default judgment,2 the movant must (1) promptly file a
2 Rule 237.3(b) of the Pennsylvania Rules of Civil Procedure provides: "If the
petition [challenging the default judgment] is filed within ten days after the
entry of the judgment on the docket, the court shall open the judgment if
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J.SO4029/08
petition to open, (2) offer a justifiable excuse for the delay that caused the
default, and (3) aver a meritorious defense that, if proved at trial, would
afford the defendant relief. Reid, supra at 160. To succeed, the petitioner
must meet all three requirements. Duckson v. Wee Wheelers Inc., 620
A.2d 1206 (Pa.Super. 1993). In other words, if the petitioner fails to meet
even one requirement for opening judgment, the court can deny relief
without even considering arguments made with regard to the two other
requirements. Id. at 1208.
If the petitioner has made some showing as to all three requirements
of the test, then the court is entitled to consider each part in light of all
"circumstances and equities of the case." Id. at 1209. Courts "must
determine whether there are equitable considerations which require that a
defendant, against whom a default judgment has been entered, receive an
opportunity to have the case decided on the merits." Id. at 1208. If "the
trial court's analysis was premised upon record evidence" and "its findings of
fact were deductions from other facts, a pure result of reasoning, and where
the trial court made no credibility determinations, this Court may draw its
own inferences and arrive at its own conclusions." Id. at 1209.
With respect to the first requirement that the petitioner promptly file a
petition to open, this Court does not "employ a bright line test"; courts focus
the proposed complaint or answer states a meritorious cause of action or
defense." Pa.R.C.P. 237.3(b).
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J.SO4029/08
"on two factors: (1) the length of the delay between discovery of the entry
of the default judgment and filing the petition to open judgment, and (2) the
reason for the delay." Flynn v. America West Airlines, 742 A.2d 695, 698
(Pa.Super. 1999). With respect to the second requirement of a justifiable
excuse, courts look to the specific circumstances of the case to determine
whether the petitioner offered a legitimate explanation for the delay that
caused entry of a default judgment. Id. In Flynn, for example, the
petitioner's unintentional failure to act due to a defective mail receipt system
was not considered a legitimate explanation for the delay that caused entry
of the default judgment. Id. at 699. Finally, as to asserting a meritorious
defense, the petitioner must aver facts that if proved at trial would justify
relief. See Duckson, supra.
Expiration of the statute of limitations constitutes an affirmative
defense. Blair v. Guthrie Development Corp., 451 A.2d 537, 539
(Pa.Super. 1982). All affirmative defenses, including a statute of limitations
defense, "shall be pleaded in a responsive pleading under the heading "New
Matter."' Pa.R.C.P. 1030(a). If a statute of limitations defense is not raised
in a new matter, it is waived. Croyle v. Dellape, 832 A.2d 466, 476
(Pa.Super. 2003). Generally, a statute of limitations defense cannot be
raised via preliminary objections. See Devine v. Hutt, 863 A.2d 1160,
1167 (Pa.Super. 2004).
In the instant case, the trial court reasoned as follows:
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Because, under the circumstances we are satisfied that the
exact timing of the clocking in of the documents was
happenstance, we have dealt with this matter as if the
taking of default judgment and the filing of preliminary
objections occurred simultaneously.
We will treat [Appellant's] motion to "vacate" the
judgment as a motion to strike.
In this case, default judgment was entered at the same
time preliminary objections were filed. The preliminary
objections, however, raised the statute of limitations.
Under Rule 1030 of the Pennsylvania Rules of Civil
Procedure, an affirmative defense that a claim is barred by
the statute of limitations "shall be pleaded in a responsive
pleading under the heading 'New Matter." Pa.R.C.P. 1030.
It is well established that the statute of limitations is not
properly raised by preliminary objection. ... Normally
speaking, when the statute of limitations is improperly
raised by preliminary objections, the proper challenge is to
seek to strike the defendant's preliminary objections for
failure to conform to rule of court. In this case, however,
the defective preliminary objections were filed at the
same time that default judgment was entered. Given the
unique facts of this case, we cannot conclude that there is
a fatal defect or irregularity on the face of the record.
In addition to his motion seeking to "vacate" the
judgment, [Appellant] has filed a motion to open same.
Pennsylvania courts have yet to establish a bright-line rule
to be used in determining the promptness of a petition to
open. See generally Pappas v. Stefan, 451 Pa. 354,
304 A.2d 143 (1973); Texas [and] Block [House Fish
and Game] Club v. Bonnell Run [Hunting & Fishing]
Corp., 388 Pa. 198, 130 A.2d 508 (1957); Schutte v.
Valley Bargain Center, Inc., 375 A.2d 368 ([Pa.Super.]
1977); Hatgimisios v. Dave[s] N.E. Mint, Inc., 380
A.2d 485 ([Pa.Super.] 1977). The courts have found
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petitions to open were properly denied where they were
filed after twenty-seven days, Texas [and] Block [House
Fish and Game] Club[, supra] at 511; thirty-seven days,
Hatgimisios[, supra] at 486; forty-seven days,
Schutte[, supra] at 371; and sixty-five days, Pappas[,
supra] at 146, after notice of default judgment was
communicated to petitioner.
In the instant case, default judgment was granted for
[CFS] on December 27, 2006; [Appellant's] motion to open
was filed February 6, 2007. This is a delay of forty-one
days between the entering of the default judgment and the
filing of [Appellant's] motion to open. No explanation was
given by [Appellant] as to the circumstances surrounding
the delay. While [Appellant] is currently represented by a
different attorney, this did not happen until after his
petition to open was filed. We are satisfied that the
petition to open was not timely filed.
Even assuming that [Appellant's] motion to open was
prompt, [Appellant] failed to provide any excuse for his
failure to file a timely answer. As stated previously, Rule
1030 of the Pennsylvania Rules of Civil Procedure provides
that an affirmative defense of the statute of limitations
must be pleaded as a responsive pleading under the
heading of "New Matter." Pa.R.C.P. 1030. The application
of this rule to this case is particularly apropos because no
answer was filed providing dates and timeframes material
to this case. It is impossible, therefore, to determine that
the affirmative defense is meritorious. Thus, [Appellant's]
petition to open fails on all three of the requirements
necessary to grant relief.
(Trial Court Opinion, dated July 18, 2007, at 2-4) (some internal citations
omitted) (emphasis added). We accept the court's reasoning. Unlike State
Farm, the unique fact of the simultaneous filing of the preliminary
objections and the default judgment is not dispositive of a fatal defect or
irregularity on the face of the record.
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Moreover, Appellant's failure to offer any explanation or excuse for the
delay in filing either the petition to strike and/or open the default judgment
or a responsive pleading was fatal to Appellant's prayer for relief.
Accordingly, we affirm.
Order affirmed.
*PRESIDENT JUDGE EMERITUS MCEWEN FILES A CONCURRING AND
DISSENTING STATEMENT.
Judgment Entered:
•? c
e uty Prothonotary
February 14, 2008
Date:
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J. SO4029/08
COMMONWEALTH FINANCIAL
SYSTEMS, INC.,
Appellee
V.
GEORGE DOUTRICH
Appellant
IN THE SUPERIOR COURT OF
PENNSYLVANIA
No. 794 MDA 2007
Appeal from the Order entered April 5, 2007,
In the Court of Common Pleas of Cumberland County,
Civil, No. 06-6364
BEFORE: LALLY-GREEN, GANTMAN, JJ., and McEWEN, P.J.E.
CONCURRING AND DISSENTING STATEMENT BY McEWEN, P.J.E.:
FILED: February 14, 2008
While the memorandum of the majority reflects a careful and
perceptive analysis, and while I join in that part of the decision that affirms
the denial of appellant's petition to open the default judgment, I am obliged
to differ with the majority on its decision to affirm the decision of the trial
court denying appellant's petition to strike the default judgment.
The general rule in Pennsylvania is that default judgments are not
favored. As this Court explained in Atlantic Credit and Finance Inc., v.
Giuliana, et al., 829 A.2d 340 (Pa.Super. 2003), appeal denied, 577 Pa.
676, 8943 A.2d 1236 (2004):
[T]he purpose of the rules in authorizing the entry of
default judgments is to prevent a dilatory defendant from
impeding the plaintiff in establishing his claim. The rules
are not primarily intended to provide the plaintiff with a
3. SO4029/08
means of gaining a judgment without the difficulties
which arise from litigation.
Id. at 343 (citations omitted).
In this case the record, as evidenced by the time stamp affixed by the
filing clerk, reveals that appellant's responsive pleading was received in the
filing office first, since appellant's responsive pleading was clocked in four
minutes before appellee's praecipe to enter a default judgment. In my view,
since there was no evidence of fraud or a breakdown in the operation of the
courts, the time sequence of the receipt of the filings should control. This
Court has previously held that "[o]nce a responsive pleading is filed, even if
untimely, a default judgment cannot thereafter be entered because the
responding party is no longer in default." State Farm Insurance
Company v. Barton, 905 A.2d 993, 995 (Pa-Super. 2006) (citations
omitted). Therefore, I am of the mind that the grant of a default judgment
upon a praecipe that was received after a responsive pleading constitutes a
defect on the face of the record,' and the judgment should be stricken.
' While I am mindful that the responsive pleading filed by appellant had
substantial defects, not the least of which is that it inappropriately pleaded
the affirmative defense of statute of limitations by way of a preliminary
objection, the remedy to cure those defects was for appellee to file
preliminary objections to appellant's defective pleading. See: Pa.R.C.P.
1028(a)(2).
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COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH FINANCIAL
SYSTEMS, INC.
Plaintiff
VS.
No. 06-6364
CIVIL ACTION
GEORGE DOUTRICH,
Defendant
PRAECIPE TO WITHDRAW PLAINTIFF'S MOTION FOR SANCTIONS
TO THE CLERK OF SAID COURT:
Please withdraw the Motion for Sanctions filed in the above-captioned matter.
Date: April 9, 2008
11-1
Attorney I941qo. 81288
Attorney/for Plaintiff
P.O. Box 1426
Bethlehem, PA 18016
(610) 954-5393
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• 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 PENNSYLVANIA
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:
COMMONWEALTH FINANCIAL SYSTEMS, INC.
VS
GEORGE DOUTRICH
2006-6364 CIVIL TERM
• 794 MDA 2007
The documents comprising the record have been numbered from No.l to 95, 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 07- ~3 -2007
`'~..~td /iyi ~ /~ ~.~i~ ~
Curt's R. Long, Prothonotary
Regina K. Lebo, Deputy
An additional copy of this certificate is enclosed. Please sign and date copy, thereby
acknowledging receipt of this record. RECORD FILED ~N g~PERiOP C~l1RT
n ~nn7
Date Signature & Title ~ -
• MIDDLE