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Home My WebLink About94-01099 (.~, .'~ . v R l/) ~ .j) - / ~- " \ - COURT FILE TO BE FILED WITH PROTHONOTARY COMMONWEAltH 0' PENNSYLVANIA COUll 0' COMMON PUAS NOTICE OF APPEAL 3-7-CJLf- '<. fROM JUDICIAL DISTlICT DISTRICT JUSTICE JUDGMENT COMMONPUASN.. /OCl9 ~ /99tf NOTICE OF APPEAL Notice i. giYllll lhal lhe appellant hell filed in lhe above Courl 01 Common Plea. on appeal Irom the judgment rendered by the District Mtke on the dole and in the co>e _,tiolled beta.. ::'~~u.!ichelle Morris 205 W. Springville Rd. Nt"" ory l......llISr~OONAMlOlIU Suean K. Day S All z. CODl Boiling Springs PA 17007 2/4/94 Richelle ~Iorris I Cal's Cars Inc. . N CV 19.93CV-0000268-93 C. COOl anti, LEGAL SERVICES, INC. lT 19 8 Irvine Row, Carlisle, PA 17013 TN. block wiD be Iigned ONLY when thi. notation i. required under Po. RCPJP, No. If appellant was CLAIMANT (see Pa, R.C,P.J.P, No, 1008B. TN. Nolie. 01 Appeal, when receiW!d by the Di.triet Ju.tiee, will opetal. o. 0 1001(6} In action before District Justice, he MUST SUPERSEDEAS to the judgment fat po.....'"'" in thi. co... FfLE A COMPLAINT within twenty (20) days af/er filing his NOTICE of APPEAL, SigIaIuu 01 ProIhonoIaty 01 Deputy PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This seetion ollonn to be used ONLY when appellant was DEFENDANT (sco Pa. R.C,P.J,P, No, 1001(7) in action belOle Districl Justice. IF NOT USED, detach lrom ctyly 01 notice 01 appeal to be setVed upon appel/co), PRAECIPE. To Ptothonoloty Enter rule upon _ ",_s} ,oppellee{s), to file 0 complaint in thi. appeal (Common Plea. No. ) within twenty (20) day. olt... ..,.iee 01 rule 01 .ulfer enlty 01 judgment 01 non pIDS. SogIallAt '" __ or I1iS .......,. or __ RULE. To _oI_s, . oppeIIee(.). (1) You ore notified that 0 rule is hereby entered upon you to file 0 complaint in this appeol within twenty (20) day. ollet the dole 01 ..,.ie. 01 thi. rule upon you by penonol .....ie. 01 by cellified 01 regi.tered moil (2) H you do not file 0 compIoint within thi. Hme, 0 JUDGMENT OF NON PROS Will BE ENTERED AGAINST YOU, (3) The dote of lelVic:e 01 this rule il ....vice was by moil i. the dote of moiling. Dote: ,,19_, SII/'lIlIA 01 A......""", or Deputy AOPc 3IN~" 1'/31110/0."'1 v J -:r I~ en >-,.. - "!,." ~ ~ ::c e- ,,- "".' <-, .:7 '" , ~: u'. " 0 ",., -;r ~ ~ r Ll:. ,~ r- ~ .T.'~ \i ca:: '" '" ;:<~ '-61 UO 18JldX8 UOIIIIWWO:J .<~ sp'w "AlIIIA'P'II' WOIJM 8101'Q ,113/110 10 .JnlIUtJIS WBlllr 10 8JnlrUtJ,s -61 ' ~O AVO SIHl 3V'l 3klO~3a 03alkl::lSanS ONV (03V'lkll~~V) NklOMS 'OlUJU4 PU4~01l0 ldIU~UJ S,JUpUUS 'flOW (paJaIS!6aJ) (pU!I!lJU~) ^q 0 U~!AJUS 10uosJad ^q 0 -61 ' uo pOSSOJppO SOM olnkl 041 W04M 01 (s)OOlloddo 041 uodn 100ddV '0 0~1I0N OAOqO 04ISU!^uodWO~~OIU!Oldwo::l0 ofl~ 01 Olnkl 041 pOAJOS 11041 J04Unl pu~ 0 010JU4 P04~01l0Id!0~oJ S,JUpUOS '"OW (pOJOIS!SOJ) (pOII!lJ9~) ^q 0 OOlAJOS IOUOSJod ^q 0-61 . Uo' (owou) 'OOlloddo 041 uodn pu~ 'OlOJ04 P04~o1l0 IdIO~OJ s,Japuos 'flOW (PUJOIS!SOJ) (pO!lIlJO~) ^q 0 O~!AJOS 10UOSJod ^q 0 '-61 . (OO/MOS)O %p) uo U!UJ041 POlOUSISOP o~lIsnr 1~!JISIO 041 uodn ' <ON soald uowwo::l 'looddV 10 o~lIoN 04110 ^do~ 0 0 pOAJOS 11041 WJIIIO JO JOOMS ^QOJ04 I :.1IA "01:1:1" II : ~o .uNnoo VINV^USNN3d ~o H11V3MNOl'll'lOO (soxoq o/qe~!lddo ~~04::l </eedde 10 DOI/OU 041 6wf/J 1J31:Jtt SAttO (01) N31 N/H1IM 031/:J 381snw O~(MOS 10 JOOJd S141) .1NI"1dWOO 311:1 0.1 31ml ON" 1"3dd" :10 301.10N :10 30lMl3S :10 :lOOUd c. ._.~.... " RICHELLE MORRIS, Plaintiff IN THE COURT OF COMMON PLEAS OF v. CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. IOQ1 CIVIL 1994 CAL'S CARS, INC. Defendant PRAECIPE TO PROCEED IN FORMA PAUPERIS To the Prothonotary: Kindly allow, Richelle Morris, Plaintiff, to proceed in forma oauoeris. I, Philip C. Briganti, attorney for the party proceeding in forma oauoeris, certify that I believe the party is unable to pay the costs and that I am providing free legal services to the party. The party's affidavit showing inability to pay the costs of litigation is attached hereto. Pnllip C. Briganti Attorney for Plaint ff LEGAL SERVICES, INC. a Irvine Row Carlisle, PA 17013 (717) 243-9400 t' RICHELLE MORRIS, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW v. CAL'S CARS, INC. Defendant CIVIL 1994 NO. AFFIDAVIT IN SUPPORT OF PETITION FOR LEAVE TO PROCEED IN FORMA PAUPERIS 1. I am the plaintiff in the above matter and because of my financial condition am unable to pay the fees and costs of prosecuting, defending, or appealing the action or proceeding. 2. I am unable to obtain funds from anyone, including my family and associates, to pay the costs of litigation. 3. I represent that the information below relating to my ability to pay the fees and costs is true and correct. (a) Name: Address: Richelle Morris 205 W. SorinRville Rd. BoilinR SorinRs. PA 17007 Social Security Number: 179-68-3923 (b) If you are presently employed, state Employer: Eric Surette Address: 262 W. Pomfret st. Carlisle. PA 17013 Salary or wages per month: $540.00 Type of work: Babysit If you are presently unemployed, state Date of last employment: N/A Salary or wages per month: Type of work: , (c) Other income within the past twelve months Business or profession: $270/mo. for 3 mos. Ward's Other self-employment: $400/mo, for 7 mos.-babysitting Interest: 0 Dividends: 0 Pension and annuities: 0 Social Security benefits: 0 Support payments: 0 Disability payments: 0 Unemployment compensation and supplemental benefits: 0 Workman's compensation: 0 Public Assistance: 0 Other: 0 (d) Other contributions to household support (Wife)(Husband) Name: N/A If your (husband) (wife) is employed, state Employer: Salary or wages per month: Type of work: Contributions from children: (e) Property owned Cash: $10.00 $0,00 $0.00 Checking Account: Savings Account: Certificates of Deposit: N/A Real Estate (including home): N/A Motor vehicle: Make Ford Year 1984 Cost $1200.00 Amount owed $800.00 Stocksj bonds: N/A Other: N/A (f) Debts and obligations Mortgage: N/A Rent: $0.00 Loans: Automobile $140.00/month Monthly Expenses:Car Insurance $107.00: Gas for car $40.00: Maintenance for car $26.00: Misc. household exoenses $60.00: Lunches $80.00: Contributions toward rent and food $76.00 (g) Persons dependent upon you for support (Wife) (Husband) Name: N/A Children, if any: Name: N/A Age: 4. I understand that I have a continuing obligation to inform the court of improvement in my financial circumstances which would permit me to pay the costs incurred herein. 5. I verify that the statements made in this affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unsworn falsification to authorities. Date':fy")r\ .l. C \--... 1 J \ q Ct~ ''-i~..L-el-\ g LG IY1n! I Richelle Morris, Plaintiff L~ r.... __,:;...r,,~.- ":I" CT> - >-~ :r~ ;._ ~,~ ~. . . 'Or , . : ;':l ~ - .~ :or:: "- ::I' <:> -:r .1(' ",:: ........ " Q: 0.' = " , {, r~ '.,. ,i ~~:..~ '~ -- '. , :~ . P 011 408 1'65 ~' Receipt for Certified Mall .. No Insurance Coverage Providod m;; Do not use for Intornational Mall 1500 Revollo) Senllo DJ Susnn K. Dn ShM"nd No 229 Mill St. Box 167 r 0 . Slate aM liP COIle Nt. Holl PA 17065 $ ",1 I I I l ro.t-oe en R,turn Rf'oI;ll(ll Show1'llQ en 10 Whom 6 (HIe OtItlWl'td ~ " C ~ .., g 1Il ~. ... Ie &v l: i ",'.', ~ ,J i if: , ~ .). I C.,!.I'l"dFH SP<<"!~'V9'.,F.... ".,lrICIN Olt~'Ally Fee J ! / fl.' '-- .....-. ~ r' r " 't. . -- ., ,.. .;.-,'"', ; ~, ~i -. "',,, ,V':>':"t~:'!~ ;~I!';~':~I -~,.. ,.,", 'Co- '." - r;,~:~ ; '- ~Pl .r , , " .' .". l' 011 408 c164 ~ Receipt for Certified Mail '. No Insurance Coverage Provided ~ 00 not ule for International Mall 1500 Reversot S'nlllJ,. Lal's Cars Inc, S"~'t~i'~ Trindle Rd, 'I' J r r 0 ~..11[; "nil Ill' Cndo 'Larlisle PA 17013 ro'I;Jg~ $ f C"''''ot'llh,.., " Sp~n.I[}eI,ytJiy I,... ~ ' { I flt""l(IPdOlt>,....'fr~ R.W," flt'f."opl Sho"",,~ IQ 't.'horn & UIlto Dei,.e<"I! /J'iJ .i 'if '\ I $ " f: l' i I f , - -- , COMMONWEALTH Of PENNSYLVANIA COUll 0' COMMON 'LIAS NOTICE OF APPEAL 3-7-'1'f JUDICIAL DIS1RICl ~--~--1 ~J fROM DISTRICT JUSTICE JUDGMENT COMMON PLlAS No. lf219 ~ /99<1- NOTICE OF APPEAL Notic. i. given lhot ,h. appellant ho. filed in the oba.. Court of Common Plea. on opp.ol from the judgment r.nder.d by ,he Di.trict Ju.tice on the dot. and in the co.e mentioned belaY< NAME Of Af'PtUAN'I M .... Richelle Morris AOOIlUS Of Al'f'llLAU Oy Susan K. Day .. . 205 W. Springvillc lid. o;;rn)f~tTT~- N I ."" Holling S(,rings PA 17007 2/4/94 Richelle Horris Cal's Cars Inc. Y N a.... NO ~""". CV 19. 93l:V-U000268-93 C cool l'hilip C. lid U 19 8 Irvine Row, Carlisle, PA 17013 Thi. block will b. oigned ONLY when thi. notation i. r.quired und.. Po. R.cPJP, Na If appellant was CLAIMANT (see Pa, R.C.P.J.P, No, 100BB. Thi. Notice 'of App.ol, when received by ,he Di.trict Ju.'ic.. will opetot. o. 0 1001 (6) In action belore District Justice, he MUST SUPERS'EDEAS to the judgment tOl po....sion in Ihi. co... FILE A COMPLAINT within twenty (20) days alter filing his NOTICE of APPEAL. INC. $;gn.,luIC 01 Prothooolary CJ( Deputy PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This seetion 01 lorm to bo used ONLY when appellant was DEFENDANT (see Pa. RCP~J.P. No, 1001(7) in action bofore District Justice. IF NOT USED, detach from copy of notice 01 appeal to bo scf1lcd upon appellee}, PRAECIPE: To Prothonotary Enter rule upon NJnool~s} , oppellee(.). ta me 0 complaint in thi. appeal (Common Plea. Na ) within twenty (20) day. oft.. ...vice 01 rule 01 .ulf.. entry 01 Judgment 01 non pro~ Sq1tJMo 01 ~ 01 hiS attol'ncy Of agMt RULE: To N.Yno 01 i!Wf-'IJcc(S} . oppelle.(.~ 11) You ore notified thol 0 rule i. hereby enl..ed upon you to role 0 complaint in thi. appeal within twenty (20) day. 011.. the dote 01 ,ervice of 'hi, rule upon you by personal servke or by certifted or registered mail (2) II you do not file 0 complaint wilhin this time. 0 JUDGMENT OF NON PROS WILL BE ENTERED AGAINST YOU, (3) The dot. 01 service of this rule if ...vice woo by moil i. the dote 01 moiling. - r\", Dot.: .19_, Sig10Ilre 01 ProIhonotirt '" _ AOf'eJI1-ft,4 PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (Th,s prool 01 serv"e MUST BE FILED WITHIN TEN (IOJ DA YS AFTER IIImg the nol,ce olappeal~ Check applicable boxes) COMMONWEALTH OF PENNSYLVANIA COUNTY OF (~/n tk-.jq"l ;11 AFFI DAVIT: I hereby swear or affirm thai I served f1{a copy ollhe Nohce 01 APP'li'I, Common Pleas No, /oP7(,,,.l177'1 ,upon the District Jushce designated therem on (date 01 service) /J')",'i, IS , 19.2!:L, 0 by personal service 8'1iY (certilled) (reg:.lered) mall, sender's receipt a"ached herelo, and upon the appellee, (name) C ,,/,,$ ('4'-SJ I..(~ ,on /'J1qah<< ,19 "1'1 n by personal service D-tlY(certlfled) (r.~,.I...d) mail, sender's receipt enac~ed herelo. o and lurther that I served the Rule to File a Complaint accompanymg the above Nohce of Appeal upon Iheappellee(~) to whom the Rule wes addressed on , 19_ 0 by personal service 0 by (cerhlled) (registered) mail. sender's receipt attached hereto SWORN (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS DAY OF ,19_ Pi' ~ 4-<M,"" "."". S,pnature of Off'Cldf befote whom alfid.'llt was milde TllIo of olflClal My commiSSion expires on 19_, .7 v.mly /htri M< (ortnl-, 7. 4o'l./,tJl",.,,( fcJ fhe pmo/li.-; ,.(. 1<;. f" if" j..J.,ql'''/;~) , SltI.....,,,,.,u ""qlr"l~ lilt! qJ4.t;~;'1/I'< 11'".... "../ J.hf<1- !a/j~ Shf..",.."/J' I)",,.,;, eVe r>7l(eR f(.~J~r- I~, (, S. f't1c'f, (('/((/'I1,J .;.,. CUI! "'''''''' Iolr,.f,c"I,'M jr/f'7 (,~ -:r en ,- ~ ::or.:: .'t , -, (Y-l J:) c-> a: - . RICHELLE MORRIS, plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW v. CAL'S CARS, INC. Defendant NO. 1099 CIVIL 1994 COMPLAINT COMES NOW the plaintiff, Richelle Morris, by and through counsel, Philip C. Briganti, Esquire, Legal services, Inc., and as her Complaint, states as follows: 1. The plaintiff, Richelle Morris, is an adult individual residing at 205 W. springville Road, Boiling springs, Cumberland county, Pennsylvania 17007. 2. The defendant, Cal's Cars, Inc., is a Pennsylvania for- profit corporation located and doing business at 1419 Trindle Road, Carlisle, cumberland county, Pennsylvania 17013. 3. On or about July 8, 1993, pursuant to a "Used Vehicle order", Plaintiff purchased from Defendant a 1983 Ford EXP (Serial No. 2FABP0142DX179211). A copy of the "Used Vehicle Order" is attached hereto, incorporated by reference and marked as plaintiff's Exhibit "A". 4. The sales price of said vehicle was $2,450.00, and after taxes, filing fees, license plate fees and notary charges, the total purchase price was $2,641.00. 5. Prior to taking possession of the vehicle, Plaintiff traded in a 1983 Dodge omni for which she received a used car allowance of $300.00, and paid Defendant a cash downpayment of ~', $641.00. 6. Pursuant to a "Contract- statement of Understanding" executed by the parties, Plaintiff subsequently remitted to Defendant payments totalling $460.00 toward the $1,700.00 balance owed on the car, as well as late charges totalling $20.00. A copy of the "Contract- statement of Understanding" is attached hereto, incorporated by reference and marked as Plaintiff's Exhibit "B". COUNT I BREACH OF THE IMPLIED WARRANTY OF MERCHANTABILITY 7. Plaintiff repeats and incorporates by reference all preceding averments in this Complaint. 8. Defendant is a merchant of used cars, within the meaning of 13 P.S. 52104. 9. Within three months following Plaintiff's purchase of the said 1983 Ford EXP from Defendant on July 8, 1993, the car exhibited numerous defects, including but not limited to the following: a. On or about July 26, 1993, the alternator had to be replaced at a cost to Plaintiff of $68.67. b. On or about August 9, 1993, after seriously malfunctioning since on or about August 1, 1993, the transmission had to be replaced at a cost to Plaintiff of $235.32. c. On or about August 21, 1993, the car's fuel pump had to be replaced at a cost to Plaintiff of $24.78. d. On or about September 18, 1993, the car's solenoid had to be replaced at a cost to Plaintiff of $13.95. e. On or about September 18, 1993, the car's starter had to be replaced at a cost to Plaintiff of $74.70. f. On or about September 22, 1993, the car broke down on an interstate highway, apparently with a "blown engine", costing Plaintiff $239.60 in towing and storage charges. 10. Defendant failed to repair any of the aforementioned defects, except at significant cost to Plaintiff. 11. Pursuant to 13 P.S. 52314, Defendant was bound by an implied warranty that the vehicle would be "merchantable", in that it would be fit for the ordinary purposes for which such a vehicle would be used. 12. Defendant's sale to Plaintiff of this defective vehicle, and Defendant's failure to repair the vehicle except at significant cost to Plaintiff, constitutes a breach of the implied warranty of merchantability in violation of 13 P.S. 52314. 13. As a result of the car's nonconformity with this warranty, Plaintiff has been damaged in the amount of all sums paid and claimed due in excess of the vehicle's actual value. COUNT II BREACH OF IMPLIED WARRANTY OF FITNESS FOR PARTICULAR PURPOSE 14. Plaintiff repeats and incorporates by reference all preceding averments in this Complaint. 15. Prior to purchasing this vehicle, Plaintiff, through her mother, informed Defendant's salesman and agent, Anthony Gross, that they were looking for a "dependable car". 16. Mr. Gross informed Plaintiff's mother that the 1983 Ford EXP she purchased was the "best car on the lot". 17. plaintiff relied on the skill and judgment of Mr. Gross in making her decision to purchase this vehicle. 18. Pursuant to 13 P.S. 52315, an implied warranty that the vehicle would be a dependable car to drive was created. 19. By selling Plaintiff this defective vehicle, Defendant breached the implied warranty that the car would be fit for a particular purpose, in violation of 13 P.S. 52315. 20. As a result of the car's nonconformity with this warranty, plaintiff has been damaged in the amount of all sums paid and claimed due in excess of the vehicle's actual value. COUNT III BREACH OF EXPRESS WARRANTY 21. Plaintiff repeats and incorporates by reference all preceding averments in this Complaint. 22. Defendant's statements regarding the reliability and condition of the car created an express warranty. 23. As a result of the car's nonconformity with this warranty, plaintiff has been damaged in the amount of all sums paid and claimed due in excess of the vehicle's actual value. COUNT IV VIOLATIONS OF THE MOTOR VEHICLE SALES FINANCE ACT 24. The "Used Vehicle Order" (plaintiff's Exhibit "A") and "contract- statement of Understanding" (Plaintiff's Exhibit "B") executed by the parties constitute motor vehicle installment sale contracts as defined by 69 P.S. 5603, and are governed by the Motor Vehicle Sales Finance Act (hereinafter referred to as MVSFA), 69 P.S. 5601 ~ ug".. 25. The "Used Vehicle Order" for this vehicle fails to conform to the MVSFA's requirements for every installment sale contract, as set forth under 69 P.S. 5614, in that it lacks the following disclosures: a. The seller's address. b. The unpaid cash balance. c. The principal amount financed. d. The finance charge. e. The time balance. f. A payment schedule. g. A summary notice of the buyer's principal legal rights respecting prepayment of the contract, rebate of finance charges and reinstatement of the contract in the event of repossession. h. Specific provisions as to the buyer's liability respecting default charges, repossession and sale of the motor vehicle, in case of default or other breach of contract. 1 26. The "Contract- statement of Understanding" fails to conform to the MVSFA's requirements for every installment sale contract as set forth under 69 P.S. 5614, in that it lacks the following disclosures: a. The buyer's address. b. The cash price of the motor vehicle. c. Any down payment made, and whether the down payment was cash or the agreed value of a "trade- in" motor vehicle, or both. d. A description of the "trade-in" vehicle. e. The unpaid cash balance. f. The principal amount financed. g. The finance charge. h. A summary notice of the buyer's principal legal rights respecting prepayment of the contract, rebate of finance charges, and reinstatement of the contract in the event of repossession. i. Specific provisions as to the buyer's liability respecting sale of the motor vehicle following repossession in case of default or other breach of the contract. COUNT V VIOLATIONS OF THE TRUTH IN LENDING ACT 27. The "Contract- Statement of Understanding" (Plaintiff's Exhibit "B") required the plaintiff to make more than four installment payments, rendering this transaction a consumer credit transaction subject to the Truth in Lending Act (hereinafter TILA), 15 U.S.C. 51601 gt ~, and Regulation Z, 12 CFR 5226.1 ~ ~. 28. The defendant failed to provide the disclosures required by TILA and Regulation Z. COUNT VI UNLAWFUL REPOSSESSION 29. Plaintiff repeats and incorporates by reference all preceding averments in this Complaint. 30. On or about November 6, 1993, Defendant's agent came to Plaintiff's residence in order to repossess the vehicle she purchased from Defendant. 31. On said occasion, Defendant's agent refused the demand of Plaintiff's mother that he leave the premises, and he did not leave until directed to do so by the police. 32. On or about November 8, 1993, Defendant's agent again came to Plaintiff's residence to repossess the vehicle. 33. Plaintiff and her mother again asked Defendant's agent to leave the premises, but he refused, at one point jumping onto the hood of the car and stating, "Now I am on Calvin's property". 34. It was again necessary to call the police, who again directed Defendant's agent to leave Plaintiff's residence. 35. Prior to leaving, Defendant's agent asked the police if he could break into a truck owned by a friend of Plaintiff's mother so that he could move the truck and tow away plaintiff's car, but was directed not to do so by the police. 36. Upon leaving, Defendant's agent promised Plaintiff that he would not again attempt to repossess the car for 21 days, so she could attempt to reach a settlement with Defendant. 37. However, on or about November 10, 1993, at approximately 12:30 a.m., Defendant's agent again came to Plaintiff's residence to repossess the car. 38. Plaintiff demanded that he leave, but Defendant's agent refused to do so, and towed away the car over Plaintiff's vehement objections. 39. The refusal of Defendant's agent to leave Plaintiff's property after being requested to do so constituted unlawful trespass. 40. Defendant's agent was acting under Defendant's authority in undertaking the above-described actions. 41. Defendant, through these actions, unlawfully breached the peace in the course of repossessing Plaintiff's vehicle, in violation of 13 P.S. 59503. COUNT VII UNLAWFUL LATE CHARGES 42. Plaintiff repeats and incorporates by reference all preceding averments in this Complaint. 43. In accordance with language in the "Contract- Statement of Understanding" (Plaintiff's Exhibit "B") which Defendant required Plaintiff to sign in order to purchase the vehicle, Defendant charged Plaintiff a $10.00 per day late charge for payments made after the due date. 44. Pursuant to this provision, Defendant collected from Plaintiff $10.00 in late fees on or about August 10, 1993, and on or about September 7, 1993, occasions when her payments were one day late. 45. The late charge provision in the "Contract- Statement of Understanding" is an unlawful liquidated damage provision and/or penalty clause, and is unenforceable. 46. Said late charge provision violates 69 P.S. 5621, which limits a late charge of 2% per month of the payment or payments in arrears in a motor vehicle installment sale contract. COUNT VIII FRAUD 47. Plaintiff repeats and incorporates by reference all preceding-averments in this Complaint. 48. Prior to Plaintiff's purchase of this vehicle, Defendant, through its agent, misrepresented to Plaintiff and her agents that the car was reliable and in good condition. 49. Defendant made these statements knowing they were false, and intending that Plaintiff rely on them to her detriment. 50. Plaintiff reasonably relied upon Defendant's false representations in deciding to purchase the vehicle. 51. As a consequence of Plaintiff's reliance on Defendant's false representations, she has been damaged in the amount of all sums expended toward the purchase of this car and as a r.... -'-",n L".,._;_._.,_....'._"e._.._.._..'.,.,,_~ . -..... consequence of its defects. 52. Defendant's acts in misrepresenting the condition of the car were outrageous because of Defendant's evil motive or reckless indifference to the rights of Plaintiff. COUNT IX REVOCATION OF ACCEPTANCE 53. Plaintiff repeats and incorporates by reference all preceding averments in this Complaint. 54. On or about November 19, 1993, due to the numerous serious defects in the vehicle, and Defendant's breach of the implied warranty of merchantability, the implied warranty of fitness for particular purpose and the express warranty, Plaintiff communicated to Defendant, through counsel, that she revoked acceptance of the car, pursuant to 13 P.S. 52608. 55. Plaintiff has been damaged in the amount of all sums paid and claimed due as a result of the car's nonconformity with these warranties. COUNT X VIOLATIONS OF THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 56. Plaintiff repeats and incorporates by reference all preceding averments in this Complaint. 57. Defendant is engaged in "trade or commerce" as defined by the Unfair Trade Practices and Consumer protection Law, 73 P.S. 5201-1 gt ~ 58. Defendant is a motor vehicle dealer as defined in the " t I I regulations governing Automotive Industry Trade Practices, 37 Pa. Code 5301.1 ~~, and is subject to those regulations. 59. Defendant is a creditor as defined in the regulations governing Debt Collection Trade Practices, 37 Pa. Code 5303.1 gt ~, and is subject to these regulations. 60. Defendant has violated the Unfair Trade Practices and Consumer Protection Law, and the regulations promulgated pursuant thereto, by engaging in unfair methods of competition, and unfair or deceptive acts or practices in the conduct of trade or commerce, as follows: a. Prior to Plaintiff's purchase of the 1983 Ford EXP from Defendant, Defendant's salesman falsely represented that the vehicle was a dependable car when he knew or should have known that it was not roadworthy, in violation of 37 Pa. Code 5301.2(5) and (6). b. The "Used Vehicle Order" form (Plaintiff's Exhibit "A") used by Defendant in connection with the sale of this motor vehicle failed to contain the address of the dealer as required by 37 Pa. Code 5301.4(a)(2) (i), or a statement of the purchaser's right to cancel the contract before it is signed by an authorized dealer representative, as required by 37 Pa. Code 5301.4(a) (2) (v). (Plaintiff's Exhibit "B"). c. The "Contract-statement of Understanding" (Plaintiff'S Exhibit "B") used in connection with the sale of this vehicle failed to contain the address of the purchaser, the make, model, year and vehicle identification number of the trade-in vehicle, a description of the purchased vehicle as either "new" or "used", the total contract price, or a brief statement of the express warranty and the place where a full copy of the written warranty may be obtained, in violation of 37 Pa. Code 5301.4(a)(2). See plaintiff's Exhibit "B". d. In the course of repossessing this vehicle, Defendant, through its agent, used a false representation or deceptive means to collect a debt, used an unlawful action to coerce payment of a debt, and harassed plaintiff in connection with the collection of a debt, in violation of 37 Pa. Code 5303.3. 61. Defendant's conduct, as set forth in Counts I, II, III, IV, V, VI, VII, VIII and IX of this Complaint, constitutes unfair or deceptive acts or practices in the conduct of trade or commerce within the meaning of the Unfair Trade practices and Consumer Protection Law (73 P.S. 5201-1 et sea.). 62. Plaintiff has suffered actual damages in the amount of all sums paid and claimed due as a result of the Defendant's violation of the Unfair Trade Practices and Consumer Protection Law, including but not limited to sums expended toward the purchase and repair of this vehicle. DAMAGES WHEREFORE, Plaintiff requests the following relief: 1. On Count I, damages in the amount of $2,078.02. 2. On Count II, damages in the amount of $2,078.02. 3. On Count III, damages in the amount of $2,078.02. 4. On Count IV, as a result of Defendant's contract violations under the Motor Vehicle Sales Finance Act, a determination that there was no valid contract for the installment sale of this motor vehicle, and damages in the amount of $1,421.00 to compensate Plaintiff for sums expended toward its purchase. 5. On Count V, for violations of the federal Truth In Lending Act, statutory damages pursuant to 15 U.S.C. 51640 in the amount of $100.00 and reasonable attorney's fees. 6. On Count VI, arising from Defendant's unlawful repossession of the vehicle, damages of $245.00, pursuant to 13 P.S. 59507. 7. On Count VII, damages in the amount of $20.00 as compensation for unlawful late charges collected from Plaintiff. 8. On Count VIII, damages in the amount of $2,078.02, plus exemplary or punitive damages. 9. On Count IX, damages in the amount of $2,078.02. 10. On Count X, as a result of Defendant's violation of the Unfair Trade Practices and Consumer Protection Law, actual damages of $2,078.02 and/or treble damages totalling $6,234.06, pursuant to 73 P.S. 5201-9.2. 11. Such other and further relief as this Court may deem reasonable and just. Respectfully submitted, Iif#~L~ Philip . Brigan~ Counsel for plaintiff LEGAL SERVICES, INC. a Irvine Row Carlisle, pa 17013 (717) 243-9400 The above-named Plaintiff, Richelle Morris, verifies that the statements made in the above Complaint are true and correct. Plaintiff understands that false statements herein are made subject to the penalties of 18 Pa. C.5. 64904, relating to unsworn falsification to authorities. Date: 3 . ~~. 9y Ml(lhJl,,~,,-)..~ Ri elle Morris, Plai iff CAL'S CARS, INC. Defendant NO. 1099 CIVIL 1994 RICHELLE MORRIS, Plaintiff v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Complaint is this ~f!Jdt- day of March, 1994, being served upon the fOllowing, by hand-delivery, at the address below: Cal's Cars, Inc. c/o Samuel Milkes, Esquire Jacobsen & Milkes 38 South Pitt Street Carlisle, PA 17013 pii~::.~ Attorney for Plaintiff LEGAL SERVICES, INC. 8 Irvine Row Carlisle, Pa 17013 (717) 243-9400 ..~.' USED VEHICLE ORDER . {' a .-OAlf.. ! - :~~. .--. . .... 19 xl DEALER ~~I S ((.S.-1..f\J:'.......__._.. m____._ PURCHASER \ n~ ~gJ ~ -~P ONE. ADDRE~ ~!)'2l ~ '- ')pr2.\ n~V llle CITY: n....... \ \ nQ, .0:'-0"\12. \ f'c...C} STATE _'A ZIP/'7fYJ 7 c~r- ~ ENTER MV ORDER FOR ONE AR AS FOLLOWS: MAKf Lie HP ~DRD CAR SALES PRICE DELlVERV & HANDLING TAX FILING L1C. PLATES \\J TOTAL PURCHASE PRICE DEPOSIT USED CAR AlLOWANCE S LESS LIEN S HELD BY EOUITY CASH ON DELIVERY TOTAL PURCHASE PRICE sa The Inlormation you aee in the Window form lor Ihis vehicle IS pan of Ihls conlract lntormabOn on the WindOW form overrides any contrary provisions 10 the contrac1 01 sale. 19 uc HP 1 D50LD AS IS. menlllue R~ou C5 STOCK ,.0 I tMtIIlbV~' thll pu.dW.". lIIl)O'IrtIOQI}' ,*,lhOu! iAlly UUoll.ntlNl. ..presMd OIlInplMld, by lhr, duaktr 01 ho!lo ~ C~I" 5q\.lIUIt-' ~ WtJlhvIM!.lkfl,*lIll.r.ntvlno!lvtt~iltb~ ..1I'ldeIo".,y_l~ I ,i:o Ivt.I"b.iI$l.uI~b SOLD WITH ..,11.1 1,\buI' u'WIl '0"'.' lldY10 _ '1~. .',..,11I ..lei Pol.,. ..~"'* -- (Ii lUCilll" rOW III pw1S W'ARRANTY .nl I,lb,1I \,1M"" An '1fP.1"~lIlu..lbe mAl'" 00."., ....,~I{..."h(lpOl ..hoPS4IuItloIllLocI11111tl..1t.rt l'leI.....n.arflhd '" . 'Nt, du lol>l.....'I.J,IiI, I,/O:!:. baft"'f \ll<I~ 1kX." h"",l.. Of foktlO " . o..';wf~Sq1otluh' p_' :.~~.:_. -~'~. -~_.. -.-- I""MI._...t....,dtl.a..llltt~vr..... ....II.aa4.IM'.......JoIl'" """"'.-ad(.....,..,."."....puI'(~(or1I.II.tl" ...,..'u.IlJI"".......,and ACIthOWl[OOEFllc;lIttIOt Al.OW1l11 UIf'Ult T",~OltOlHON11'ftlA'f ~ftotlNAbOVrl""l4.ll"'"'''''u'''''' ..........._h4UI~u..... oIlMoU1'"'..,.,.....""""'t.-lftl.....I'.~........."I..llIlt~lItl1(kod ",m;Al.A .,........ A'IIl....,...._U'"' "'."'.t..l:'l,...rl',.........t"....."l......,.. iI&4""'. ~cJn,LJ .."........"'YUl'l '.II......UlIWi 'ot' ,.,....,.lI\oP.ftr() ."'''''W ul 't1_UW"U4"'" .hkotfWIIW.'....tlWW 114..... ...f...'. .....~!'1o...f"n"JUI a...n :;.~::.~,"%~,,; \ \'Qr;.~'~ ~. ,,--;;.::..=~-;;..;;., -... THI. ORD.R .. NOT VAL.ID UNL.... .10NaD AND ,,"CCaPTaD ." QaAL.." . "','" --: ~~ t', fl!!.._...__.. Acce"'A<4bo.t .' .- -- .-1"'" r .'.-.~ ~._. _____.______ ---, , ,DlAllH$5KiHATUMl AUTOLINE fORM I4JOO PLAINTU'F'S EXIIlBIT "A" ...--- - ...-- .. -...... t' .. 1419 1I'1alll. Bd ,". . ,carU.le. 'a 17013 " ,. . '. .'... : . .#~,'" . # it ;"'~~~" ' .,:..: 717-288-8182. .... '-' . ~ ..,., . ':.' CaDtract- State.eDt 01' VDderstaDdiDf .,:;..' 1~~~k.~~i:;._haviDf ..archa.ed a t9~ .' ..: C.ake)_~~~________C~od.n__E...Yi2___~.~'. " VIN- ~S:..1l~Q~~~~J~la.U______aD.:1.:J(.:~. '.. '" Herebv understADd thAt I .. ablifated to C..19s C..rs Cor the tat.l a.ount 01' ._L~Q.Q. .. .j'fji. . This ablifatioD is due and pAvabla iD the a.aaDt .__t.lQ~_Car _;;._i{~____.eek... '1 4i (urther uDderstADd that it I should becom. i 'it i "~ dAV iD de(Ault at .V IIAv.ent I a. subJect to ,.>li!~ hAViDf this vehicl. repossessed. ADd I a. .'e". ., resPoDsible (or A '100.00 rapo charfe,And 'All ~ resaDable AttorDev (ees resultiDf iD collect- . -'t;t~ iOD. There is '10.00 a dav late charfe .rter ;, ....' pav.eDt date, aDtill Judfe.ent ia entered. . ... tArat ..av.ent da~_.2..~.=_ct.~______~____~... . .ifDatare__ :U:'l.~~~~~___ .; Date..:_'l:.&_2~~______ ..,~ X~ '. ..,..... ....~I;. '... ~; t!~ ~. . . .... .' f . - ". L. . ~.IlC? ~~,~ ..,: NCYr)' d~ . , " .~. i &; . ::c: a- m LIl N ~~ ;!;r.:.., w~gi: ~~o:t ~~~9:::' o,-..~ .o-.tln I,'~~~~~ UI. ,_, :J :,u~Lu) t... .::~:n.. j-- ::l a.u :.> <X> ...... ... .... = CAL'S CARS, INC. Defendant NO. 1099 CIVIL 1994 v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW RICHELLE MORRIS, plaintiff AMENDED CERTIFICATE OF SERVICE I, Philip C, Briganti, hereby certify that a true and correct copy of the complaint and Notice to Defend filed in the above-captioned matter was on the 28th day of March, 1994, served upon the following, by hand-delivery, at the address below: Cal's Cars, Inc. c/o Samuel Milkes, Esquire Jacobsen & Milkes 36 South Pitt street Carlisle, PA 17013 Phi ip ,Brigant Attorney for Plai tiff LEGAL SERVICES, INC, 8 Irvine Row Carlisle, Pa 17013 (717) 243-9400 RICHELLE MORRIS, : IN THE COURT OF COMMON PLEAS OF 1>laintiff . . . CUMBERLAND COUNTY, PENNSYLVANIA . . . v . CIVIL ACTION - LAW . . . CAL'S CARS, INC. . NO. 1099 CIVIL 1994 . Defendant. . . 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 Counter-Claim and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Counter-Claim or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. COURT ADMINISTRATOR, FOURTH FLOOR CUMBERLAND COUNTY COURTHOUSE CARLISLE, PA 17013 TELEPHONE: 717-240-6200 NOTICE RICHELLE MORRIS, Plaintiff IN THE COURT OF COMMON PLEAS OF . v CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW CAL'S CARS, INC. Defendant. NO. 1099 CIVIL 1994 . . . ANSWER AND COUNTER-CLAIM TO PLAINTIFF'S COMPLAINT COMES NOW, the Defendant, Cal's Cars, Inc., through its President, Julie Stough, and by its counsel, Samuel W. Milkes, JACOBSEN & MILKES, and hereby responds to Plaintiff's Complaint and raises a Counter-Complaint as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. No further response required. 8. Admitted. 9. It is generally denied that the automobile purchased by Plaintiff exhibited numerous defects. More specifically, Defendant responds as follows: a. Admitted. b. Admitted that the transmission developed defects after the sale of the vehicle. Defendant is without knowledge as to the specific date the malfunctioning developed. By way of further response, Defendant notes that due to the 50-50 warranty which was in place, Defendant also assumed a cost of $235.32 for -"~....- this repair. c. Denied. Defendant is without knowledge as to whether it was necessary to replace the fuel pump on this vehicle. Strict proof is demanded in trial. d. Denied. Defendant is without knowledge as to whether the solenoid had to be replaced on this vehicle. Strict proof is demanded in trial. e. Denied. Defendant is without knowledge as to whether the starter had to be replaced on this vehicle. Strict proof is demanded in trial. f. Admitted in part. It is admitted that the vehicle in question broke down on September 22, 1993. Denied that Plaintiff reasonably incurred the costs described in that an excessive amount of towing and storage was caused by Plaintiff's actions. In both of these matters, Cal's Cars, Inc. would have been available to tow and store the vehicle at a much lessor cost. Defendant also asserts that the damage was a direct result of Plaintiff's misuse of the vehicle. 10. Denied. with regard to all the aforementioned defects, the repairs were either made at a greatly reduced cost to the Plaintiff, pursuant to the 50-50 warranty between the parties or the Plaintiff made repairs without Defendant's knowledge and did not give the Defendant any opportunity to repair the problem. 11. Denied. It is denied that any warranty exists beyond the expressed written warranty given to Plaintiff at the time of her purchase. 12. Denied. It is denied that such an implied warranty exists. It is further denied that even if such a warranty existed, Defendant's actions in any way constituted a breach of the warranty, given that the Defendant on several occasions made repairs to the vehicle at cost to the Defendant. 13. Denied. For the above stated reasons, Defendant is in conformity with any warranties in place on this vehicle and Plaintiff owes to Defendant the remainder of the purchase price, plus costs. Additionally, Plaintiff had use of the vehicle and travelled approximately 2,700 miles during the 2~ months she drove the vehicle. Therefore, Plaintiff would not have been damaged to the extent she alleges since her allegations fail to factor in her sue of the vehicle. 14. No further response required. 15. Denied. Defendant denies any recollection of the specific language quoted in this paragraph, but generally admits that as with any buyer, Plaintiff was seeking a reliable car. 16. Denied. It is denied that Mr. Gross made this statement or that he would have made this statement with regard to a vehicle having nearly 100,000 miles. 17. Denied. It is denied that Plaintiff relied on the skill and judgment of Mr. Gross. She relied upon the skill and judgment of her mother and her mother's boyfriend. Plainti.ff had opportunity to discuss the purchase over at least two days between the time she initially looked at the vehicle and the time she decided to buy the vehicle. 18. Denied. It is denied that any warranties exist beyond the express warranty provided at the time of purchase. "r 19. Denied. It is denied that any such warranty exists. For the reasons described within this Answer and the Counter-claims, Defendant further denies that any breach of any warranties took place. 20. Denied. For the above stated reasons, Defendant is in conformity with any warranties in place on this vehicle. Additionally, Plaintiff had use of the vehicle and travelled approximately 2,700 miles during the 2ls months she drove the vehicle. Therefore, the vehicllJ would not have been damaged to the extent that Plaintiff alleges. 21. No further response required. 22. Denied. It is denied that Defendant made any statements which would have created any express or implied warranty beyond that created within Exhibit A to this Answer and Counter-Claim, indicating that a 50-50, 30-day, bumper-to-bumper, warranty was expressly provided. 23. Denied. For the above stated reasons, Defendant is in conformity with any warranties in place on this vehicle. Additionally, Plaintiff had use of the vehicle and travelled approximately 2,700 miles during the 2ls months she drove the vehicle. Therefore, Plaintiff would not even have been damaged to the extent that she alleges. 24. Admitted. , ,. 25. Denied. Defendant asserts that all the information required under the Motor Vehicle Sales Finance Act was provided to Plaintiff through the combined documents provided to Plaintiff, including Exhibits A and B to Plaintiff's Complaint and the Buyer's Guide Warranty document attached as Exhibit A to this Answer. 26. Denied. Defendant asserts that all the information required under the Motor Vehicle Sales Finance Act was provided to Plaintiff through the combined documents provided to Plaintiff, including Exhibits A and B to Plaintiff's Complaint and the Buyer's Guide Warranty document attached as Exhibit A to this Answer. 27. Admitted. 28. Denied. Defendant asserts that all the information required under the Truth In Lending Act was provided to Plaintiff through the combined documents provided to Plaintiff, including Exhibits A and B to Plaintiff's Complaint and the Buyer's Guide Warranty document attached as Exhibit A to this Answer. 29. No further response required. 30. Admitted. It is admitted that the Defendant's employee came to Plaintiff's residence in order to repossess the vehicle she purchased from Defendant. 31. Admitted. It is admitted that Defendant's employee remained at the premises where he was attempting to lawfully repossess the vehicle until such time as the matter was discussed with a police officer. Defendant denies that its agent was directed by the police to leave the premises. To the contrary, it was only because of Plaintiff's misrepresentations to the police that the police had any reason to question Defendant' s repossession. 32. Admitted. It is admitted that Defendant's employee returned to the residence for this lawful purpose. 33. Admitted. It is admitted that Defendant's employee was at the premises. It is denied that he was told to leave the premises or that he jumped on to the hood of the car and made the statement alleged. 34. Denied. It is denied that the police directed the Defendant's employee to leave Plaintiff's residence, or that it was necessary to have called the police on this occasion. Plaintiff's misrepresentations to the police caused unnecessary confusion at the time of this lawful repossession attempt. 35. Admitted. It is admitted that a conversation to this effect may have taken place. 36. Denied. It is denied that the Defendant's employee made any such promises to Plaintiff. Plaintiff had made no efforts to reach a settlement of this matter and there was no reason to believe that any future settlement could be reached. 37. Admitted. It is admitted that Defendant's employee came to the residence for the lawful purpose of repossession. 38. Admitted. It is admitted that the vehicle was repossessed over Plaintiff's objections. 39. Denied. It is denied that the Defendant's employee in any way committed unlawful trespass in that he had a limited ability to approach the vehicle for the lawful purpose of repossession and he did so. 40. Admitted that Defendant's employee was authorized by Defendant to repossess the vehicle in question. 41. Denied. It is denied that Defendant in any way breached the peace, as stated above. It is further asserted that Plaintiff's unreasonable misleading of the police and other actions caused unnecessary burden upon Defendant in repossessing this vehicle. 42. No further response required. 43. Admitted. 44. Admitted. It is further asserted that because the financing of this vehicle was without interest, it was reasonable for Defendant to charge late charges. 45. Denied. It is denied that this amount is an unlawful liquidated damage or penalty clause. Because this contract was a no interest contract, the late charges to be assessed are deemed reasonable. However, Defendant is in agreement with assessing a two percent per month late charge instead. 46. Admitted. It is admitted that late charges should be limited to two percent per month. 47. No further response required. 48. Denied. It is denied that any misrepresentation took place, as discussed above. While Defendant believed the vehicle to be in generally good condition, his representations as to the condition of the vehicle were limited to the warranty documents, attached as Exhibit A to this Answer. 49. Denied. It is denied that any statements of misrepresentation were made and it is further denied that any statements were made which were known by the Defendant to be false or that Defendant intended to cause Plaintiff to rely on any such statements to her detriment. 50. Defendant is unable to admit or deny allegations as to Plaintiff's state of mind. 51. Defendant is unable to admit or deny allegations as to Plaintiff's state of mind. As to allegations of damages, Defendant denies that Plaintiff was damaged at all, given especially that she was able to use the vehicle for approximately 2700 miles and that some of the automobile malfunctions were caused by the Plaintiff's own misuse of the vehicle. 52. Denied. It is denied that there were any acts of misrepresentation and that Defendant acted with any evil motive or reckless indifference to the rights of the Plaintiff, in simply selling a used vehicle to Plaintiff. 53. No further response required. 54. Denied. It is denied that the Plaintiff revoked acceptance in a timely manner. To the contrary, Plaintiff continually asserted that she did not want the automobile in question repossessed and therefore continually asserted that she did not wish to revoke acceptance. Such revocation was only communicated as a litigation strategy after repossession had occurred. 55. Defendant denies that Plaintiff was damaged at all. Plaintiff also benefitted from use of the vehicle for approximately 2700 miles. Some of the automobile malfunctions were caused by the Plaintiff's own misuse of the vehicle. 56. No further response required. 57. Admitted. 58. Admitted. 59. Admitted. 60. Denied. a. Denied. The Defendant had no reason to believe the automobile in any way not to be roadworthy. b. Denied. The documents provided to Plaintiff surrounding the sale of this vehicle contained all required information. c. Denied Documents provided Plaintiff surrounding the sale contained all required information. d. Denied. It is denied that the Defendant, through its employee, used any false representation. It is further denied that Plaintiff has even specifically alleged any false representation or deceptive means to collect this debt. It is denied that the lawful act of repossession of this vehicle in any way constituted harassment of the Plaintiff. 61. Denied. To the extent this paragraph draws legal conclusions, no response is required. To the extent that it summarizes allegations contained above, no further response is required. 62. Defendant denies that Plaintiff was damaged. Plaintiff purchased a vehicle with a limited warranty and was able to use the vehicle for approximately 2700 miles. Some of the automobile malfunctions were cause by the Plaintiff I s own misuse of the vehicle and others are an inherent risk in buying a vehiole with nearly 100,000 miles. COUNTER-CLAIM Contract 63. Defendant incorporates its allegations made above, specifically including the allegations that Plaintiff agreed to purchase from Defendant a 1983 Ford EXP at a total purchase price, plus taxes and fees, of $2,641.00 on or about July 8, 1993, that Plaintiff was credited with payments, leaving a balance due of $1,700.00, and that Plaintiff has failed to make payments, as agreed upon. 64. Despite repeated demando, Plaintiff has refused to pay any further amounts on this vehicle, beyond the payments totalling $460.00, leaving a balance due of $1,240.00. 65. As a consequence of Plaintiff's failure to pay any amounts on this vehicle since October 5, 1993, Defendant has suffered harm from loss of use of the money due and owing from Plaintiff. 66. During her use of the vehicle, Plaintiff failed to use the vehicle for its intended purpose in that she drove it at excessive speeds and she failed to properly maintain the vehicle. 67. Following repossession of this vehicle, Defendant placed the vehicle at auction and received a net of $45.00 for the vehicle at auction. 68. Defendant incurred a cost of $100.00 for repossession of this vehicle. WHEREFORE, Defendant requests of this Honorable Court that it award Defendant damages in the amount of $1,200.00, plus $100.00 repossession fee, plus costs and interest since last payment from Plaintiff in October, 1993. Fraud 69. Defendant incorporates its allegations made above. 70. Despite repeated requests from employees of Defendant, Plaintiff continually refused to make payments after October, 1993 on the vehicle in question. 71. Despite repeated requests from employees of Defendant, Plaintiff refused to return the vehicle in question to Defendant, causing a repossession to become necessary. 72. Subsequent to the lawful repossession of this vehicle, and after repeated refusals to return the vehicle to Defendant, Plaintiff asserted that she was revoking acceptance of the vehicle. 73. During Defendant's attempts to repossess the vehicle, Plaintiff falsely informed police that an agreement between Plaintiff and Defendant was being worked out so that repossession was not to take place, knowing that no such agreement was being discussed. These statements were made for the purpose of obtaining police assistance in stopping the lawful repossession. 74. During Defendant's attempts to repossess the vehicle, Plaintiff falsely informed police that a Court Order was being sought, or existed, so that repossession was not to take place, knowing that no such Order existed or was being requested. This statements was made for the purpose of obtaining police assistance in stopping the lawful repossession. WHEREFORE, Defendant requests of this Honorable Court that it award Defendant damages in the amount of $1,200.00, plus $100.00 repossession fee, plus costs and interest since last payment from Plaintiff in October, 1993 and further that Plaintiff be directed to pay to Defendant damages resulting from Plaintiff's fraudulent activity surrounding the purchase, repossession, and revocation of acceptance of this vehicle. Date: Respectfully submitted, -Bq~ JACOBSEN & MILKES 36 South Pitt Street Carlisle, PA 17013 (717) 249-6427 Attorney No. 33130 I hereby verify that the statements made in the foregoing are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Dated: 01//11/94 c?StF STOUGH, for ,I -.... t.-/ .f I BUYERS GUIDE IMPORTANT: Spoken promises sre difficult to enforce. As.k the dealer to put all promlaealn writing, Keep this form. v8~-m I D I q ;;FA PPrJ \1.r;jtJX/7 9a 1/ DEALER STOCK NUMBER 10pll0nll1 ~ NUMBER r;xp YOOEL \Q83 y.... WARRANTIES FOR THIS VEHICLE: D AS IS - NO WARRANTY YOU WILL PAY ALL COSTS FOR ANY REPAIRS. THE DEALER ASSUMES NO RESPONSIBILITY FOR ANY REPAIRS REGARDLESS OF ANY ORAL STATEMENTS ABOUT THE VEHICLE. WAR R A NTY X 1J\^- \ \\J.\c ("V:: '-\Ap - - o FULL '''1\ LIMITED WARRANTY. The dealer will pay \ 0 %ofthelaborand !f{) % of the parts for the covered systems that fall during the warranty period, Ask the dealer for a CDPy of the warranty document for a full explanation of warranty coverage. exclusions, and the dealer's repair obligations. Under state law, "Implied warranties" may give you even more rights. DU~: i~~~PX- 2 I SYSTEMS COVEREI} /l.... (-\l)(Y)0e f?.. ..1b-L1' V"v.... pe J(. ~ YJ' ~~.~~~ ~ :.... ~~..~ .,'4.L.t. :~: C~ . ~\~. j tl'\... Cf ~ .:s '";'1\ o SERVICE CONTRACT, A service contract Is available at an extra charge on this vehicle, Ask for details as to coverage. deductible, price, and exclusions. If you buy a service contract within 90 days of the time 01 sale, state law "Implied warranties" may give you additional rights, PRE PURCHAS BY YOUR MECHANIC EI THE DEALER f. YOU MAY HAVE THIS VEHICLE INSPECTED FORM for Important ad SEE THE BACK OF THIS r In used motor vehIcles.. malor defects that may occu a list of some -~ ~\.~'>.l\" ~ ,..,'..--- ".,~. ..'..._~ RICBELLE MORRIS, Plaintiff IN THE COURT OF COMMON PLEAS OF v CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 1099 CIVIL 1994 CAL'S CARS, INC. Defendant. AFFIDAVIT OF SERVICE I, Roberta A. Hockenberry, hereby certify that a true and correct copy of the Answer and Counter-Claim to Plaintiff's Complaint, in the above-captioned matter was duly served upon Philip C. Briganti, Esq., by first-class mail, on April 11, 1994, addressed as follows: Philip C. Briganti LEGAL SERVICES, INC. 8 Irvine Row Carlisle, PA 17013 I hereby verify that the statements made in the foregoing are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Dated: April 11, 1994 ~d . R BERTA . CKENBERRY . IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA PENNSYLVANIA DIRECTORS' ASSOCIATION FOR COMMUNITY ACTION (PDACA), by itB Executive Director, John WilBon, Plaintiff, CML ACTION NO, 1:CV-93-1578 CHIEF JUDGE RAMBO DATE FILED: 10/13/93 v. DONNA E. SHALALA, or her BucceBsor, Secretary, United StateB Department of Health and Human ServiceB, in her individual and official capacitieB, and KAREN A. MILLER, or her succeBsor, Secretary, Commonwealth of PennBylvania, Department of Community Affairs, in her individual and official capacitieB, DefendantB. BRIEF IN SUPPORT OF PLAINTIFF'S APPLICATION FOR A'ITORNEY'S FEES AND COSTS UNDER THE EQUAL ACCESS TO JUSTICE ACT, P.L. 99.80, 28 U.S.C. fi 2412 ~ ~ .... ~ ........ 9't. ",;:r,'" f\i, .c:f,~')',.,.:'r., ..... ,..-.o.i;':,. . ~~Q~ ~'"::"l:)~r "'(,-?..~2 It:.'J .Jt,!.~ _""'l.I""': ...--_~C--:'I ....: ~J ~<.> ~ ~ "<i' RICHELLE MORRIS, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v, NO, 94-1099 CIVIL TERM CAL'S CARS, INC, Defendant NOTICE TO PLEAD TO CAL'S CARS, INC., c/o Samuel W, Milkes, Esquire: You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you, Date: f7..< / 9' .If i~ Ph' lip ,Brigant' Counsel for Plain ,ff LEGAL SERVICES, INC, 8 Irvine Row Carlisle, Pa 17013 (717) 243-9400 RICHELLE MORRIS, plaintiff : IN THE COURT OF COMMON PLEAS OF . . CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 94-1099 CIVIL TERM CAL'S CARS, INC. Defendant PLAINTIFF'S ANSWER TO DEFENDANT'S COUNTERCLAIM COMES NOW the plaintiff, Richelle Morris, by counsel, Philip C. Briganti, Esquire, Legal Services, Inc., and as her Answer to Defendant's Counterclaim, states as follows: 63. Admitted in part and denied in part. plaintiff admits that she agreed to purchase from Defendant a 1983 Ford EXP at a total purchase price, includina (not plus) taxes and fees, of $2,641.00, on or about July a, 1993. plaintiff also admits that she was credited with certain payments, and that she did not make certain other payments. However, Plaintiff denies that there is or was a balance due of $1,700.00, because of Defendant's breach of the implied warranty of merchantability, breach of the implied warranty of fitness for particular purpose, breach of express warranty, fraud, violations of the Motor Vehicle sales Finance Act and Unfair Trade Practice and Consumer Protection Law, and plaintiff's revocation of acceptance of the vehicle. plaintiff affirms, repeats and incorporates by reference the averments set forth in her complaint. 64, Denied. plaintiff denies that she has made payments totalling $460.00 on this vehicle, but rather avers that said payments total $4ao.00. Plaintiff further denies that there is a balance due of $1,240.00, 65. Denied. Plaintiff denies that as a consequence of Plaintiff's failure to pay any amounts on this vehicle since October 5, 1993, Defendant has suffered harm from loss of use of the money Defendant alleges is due and owing from Plaintiff. Plaintiff further denies that she owes any additional money to Defendant. 66. Denied, Plaintiff denies that during her use of the vehicle, she failed to use the vehicle for its intended purpose, and denies that she drove it at excessive speeds or failed to properly maintain the vehicle. 67. Denied. Plaintiff denies that following repossession of the vehicle, Defendant placed the vehicle at auction and received a net of $45.00 for the vehicle. 68. Denied. Plaintiff denies that Defendant incurred a cost of $100.00 for repossession of this vehicle and demands strict proof thereof. 69. Plaintiff repeats and incorporates by reference her averments set forth herein and in her Complaint. 70. Admitted. 71. Admitted in part and denied in part. Plaintiff admits that despite repeated requests from employees of Defendant, she refused to return the vehicle in question to Defendant. However, she denies that a repossession became necessary. 72. Admitted in part and denied in part. Plaintiff admits that after the repossession of this vehicle, and after repeated refusals to return the vehicle to Defendant, Plaintiff asserted that she was revoking acceptance of the vehicle, However, Plaintiff denies that repossession was lawful. 73, Denied, Plaintiff denies that during Defendant's attempts to repossess the vehicle, she falsely informed police that an agreement between Plaintiff and Defendant was being worked out so that repossession was not to take place, knowing that no such agreement was being discussed. Plaintiff also denies that these statements were made for the purpose of obtaining police assistance in stopping the repossession, However, Plaintiff asserts that she did want the pOlice to prevent Defendant's unlawful repossession of the vehicle. 74. Denied, Plaintiff denies that during Defendant's attempts to repossess the vehicle, she falsely informed police that a Court Order was being sought, or existed, so that repossession was not to take place, knowing that no such Order existed or was being requested. Plaintiff also denies that these statements were made for the purpose of obtaining police assistance in stopping the repossession, However, Plaintiff asserts that she did want the police to prevent Defendant's unlawful repossession of the vehicle, NEW MATTER RES JUDICATA 75, On November 16, 1993, Defendant filed a Civil Complaint with District Justice Susan K, Day, to-wit: Cal's Cars, Inc. v, Richelle Morris, Docket No. CV-268-93, A copy of this Civil t,,,.,,,,,,.--..q" Complaint is attached hereto, incorporated by reference and marked as Plaintiff's Exhibit "A", 76, In said district justice proceedings. Defendant sought damages of $1,240,00, which Defendant claimed Plaintiff owed pursuant to the contract for the purchase of the 1983 Ford EXP which is the subject of the instant case. 77, In said district justice proceedings, Plaintiff filed a Cross-Complaint against Defendant, alleging breach of warranties and other claims. 78, Following a hearing on February 4, 1994, District Justice Day rendered a judgment on the merits of Defendant's Civil Complaint in favor of Defendant and against Plaintiff in the amount of $146.50, and awarded no jUdgment on Plaintiff's Cross-Complaint. A copy of said jUdgment is attached hereto, incorporated by reference and marked as Plaintiff's Exhibit "B". 79. On March 7, 1994, Defendant filed a timely appeal to this Court of District Justice Day's judgment on her Cross- Complaint, but did not appeal the judgment on Defendant's Civil Complaint, ao, On March 8, 1994, Plaintiff served by certified mail, return receipt requested, a copy of the Notice of Appeal to Cal's Cars, Inc" which Notice was received by Defendant on March 9, 1994, A copy of the Domestic Return Receipt for this mailing is attached hereto, incorporated by reference and marked as Plaintiff's Exhibit "CO, 81. Pursuant to Pa. R.C.P.D,J. 1004(C), Defendant had thirty (30) days after the date on which Plaintiff served a copy of her Notice of Appeal upon Defendant to appeal District Justice Day's jUdgment on Defendant's Civil Complaint, 82, Defendant has failed to file a Notice of Appeal of District Justice Day's judgment on Defendant's Civil Complaint within thirty (30) days after service of Plaintiff's Notice of Appeal upon Defendant, rendering District Justice Day's jUdgment on Plaintiff's Civil Complaint final and non-appealable. 83, Defendant's cause of action in said district justice proceedings, as well as the sUbject matter and the parties in those proceedings, were the same as in the pending action, 84, Defendant's Counterclaim against Plaintiff for damages arising from Plaintiff's alleged breach of the parties' contract regarding the sale of the said 1983 Ford EXP, is barred under the doctrine of res judicata, WHEREFORE, Plaintiff respectfully requests that judgment be entered in her favor and the relief requested by Oefendant be denied, Respectfully submitted, . Brigan Counsel for Plai iff LEGAL SERVICES, INC, 8 Irvine Row Carlisle, Pa 17013 (717) 243-9400 The above-named Plaintiff, Richelle Morris, verifies that the statements made in the above Plaintiff's Answer to Defendant's Counterclaim and New Matter are true and correct to the best of her knowledge, information and belief, Plaintiff understands that false statements herein are made subject to the penalties of 18 Pa, C,S, 64904, relating to unsworn falsification to authorities. Date: 5- d- 9'1 J~\c\r\l \)u.~o~ Richelle Morris, Pain iff RICHELLE MORRIS, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 94-1099 CIVIL TERM CAL'S CARS, INC, Defendant CERTIFICATE OF SERVICE I, Philip C, Briganti, hereby certify that a copy of the foregoing Notice to Plead, and Plaintiff's Answer to Defendant's Counterclaim and New Matter, is this 2nd day of May, 1994, being served upon Samuel W, Milkes, Esquire, 36 S, Pitt St" Carlisle, Pennsylvania, 17013, by hand-delivery at said address, Phili C, Briga i Counsel for Plalntiff LEGAL SERVICES, INC. 8 Irvine Row Carlisle, PA 17013 (717) 243-9400 ~ , .JMMUNWloN.lH VI' pel,. . JYl.VANIA ,.COUNTY OF: CUMBERLAND ...lIlIl...., CIVIL COMPLAINT PlAINTIFF _..._ r CAL'S CARS INC. 1419 TRINDLE ROAD CARLISLE. PA '17013 L , 1lEF!NtIoWf: VI. r -...- RICIIELLE NORRIS 205 W, SPRINGVILLE DOLLING SPRINGS, PA 17007 L ' DocIe.. No.:CV-268-93 0IIa FIIId:f1.-16-93 011-3-03 ., 01__ IIl1BAH K. DA!' - 2211 "ILL STRE!:'l', BOX 167 HT. HOLL!' SPRINGS, PA '--17171411-7n2 170'5 .J ., ou-.___....... RICIIELLE MORRIS . 205 W, SPRINGVILLE DOLLING SPRINGS, PA 17007 .J PlLHI CCIT'I I IIIMNlI CCIT'II TOTAL I MIOUHT 41.50 ).uu 4b.:JO lMTEPAIO 11/16/93 I1/1tJ/~.J LJ/lb/~j TO THE DEFENDANT: The lIbove named plaimlll(s) ukljudgmem agalll8l you lor $ 1240,00 tOlJllher wtlh COllI upon the 10010wlng claim (CIvH 11..- IT1U8llnclude cII8llon 01 the _* Gl' ordlIwlce YIoIIIed): BALANCE OF CONTRACT $1240,00 ~i~':t,.lo . . I. JOLIE STOUGH . YlIrIyt'*lhel.ct....fonhlnU.~_llUelf1d correct 10 lhe best 01 my kllDWledge, Information, and belief. This 8l8Iement I8I118de IUbject to the pill...... aI 8ectJon 4llO4 Ollhe CrImM COde (18 PA. S.C.A. 54904) rel8led 10 urwwom laI8H~1on to lIUlhorlUlIa. , ~ 7~ t~".J...---jil1:.~ :7..... -- /- ,..,.,. A- 1.. MM.: 1:'.' _, IF YOU INTEND TO ENTER A DEFENSE TO THIS COMPLAINT, NOTIFY THIS OFFICE IMMEDIATELY AT THE ABOVE TELEPHONE NUMaER. YOU MUST APPEAR AT THE HEARING AND PRESENT YOUR DEFENSE. UNLESS YOU 00, JUDGMENT WILL BE ENTERED AGAlN~T YOU BY DEFAULT, 1/ you have a cl8lm agalnsllhe plalmlll which Is w~hln district justice jurisdiction and which you Intend 10 lIII98f1 at lhe hearing, you musllile rt on a camplalm form BlltllS office at IeBllllve (5) days before the date Nt lor lhe hearlng. " you have B cluJrn ngsin81lhe plalmlll which Is not wtlhln dIalrtct ju8tlce jurlIdlctlon, you may r&qlHllllnlormatlon lrom IIIIs oIIIce 88 to the procedur8ll you may 1oIIow. EXIIIIIIT "A" ~ .......~.,...._...._-..~-.. .... .-.... .,'-... i~-'_'~r'''''~ k.;:......-.,.,....~ .:.:.~.....::;::;:..~..' ~.. ( (' ~ SUSAN K. DAY DISTRICT JUSTICE coon TOWN"'" DlCklNION TOWNSHIP MIDDWU TOWNIHIP MY. HOUY II'IUNOIIOIIOUOH IOUTH MIDDLITON TOWNINlP DISTRICT 08-3.03 OFFICI ....,In ...... mMILL ITRIIT. p.o. lOlli' MOUNT HOLLY l"UNal, PA 170n Reserved Judgment Determinetion Plaintiff: Ca1's Cers, Inc. Defendant: Richelle Horris Complaint No: CV-26B-93 Date of Hearing: 2-4-94 I hereby render judgment to the plaintiff for $100.00 together with costs of $46.50. Total judgment $146.50. -0- rendered on cross complaint. Comment: The above reflects the repossession fee and costs. Ca1's is still in possession of the vehicle therefore will be able to resale the car, No judgment is givan on the counter suit. The car was purchased "as is" with a 50-50 warranty, ALL PARTIES ARE HEREBY NOTIFIED THAT THEY HAVE THIRTY (30) DAYS FROH THIS DATE WITH WHICH TO FILE AN APPEAL WITH THE COURT OF COMMON PLEAS, OFFICE OF THE PROTHONOTARY, CUMBERLAND COUNTY COURT HOUSE, CARLISLE, PA 17013 Susan K. District 09-3-03 SKD/ldk EXHIBIT "a" ....".. .,.. .......... .... ...................,......-.... .......'...... ....,........................'.... . .. . ......-......... '-- r . f' flt'.... . PCB/Korria UNITED STATES POSTAL SERVICE .-, II g ~-:~~\~.. '. .' .. ,'.~ ...... 0IfIcIIl Bu.Ine.. .~ \ PENALlY FOIl PRIVATE USE TO AIIOID PAYMENT OF POSTAGE. S30Il ~ .' '. Print your name, addreas and ZIP Coda here . . '.' , .. , .,. . , .,' . . . ..... SIIVIcIIr lno. . llivIIII RaW . -:..~'. - 'CadWe,PA 17013 .. . .. '. .- .....---.......-....... ~ 1\ .... ... J! 1\ 1. I: tad): I I I , . ......-..... ,.. .lEER: . iI . Comptetl hi"" 1 lind/or 2 fo' addiUonaI iIIMcII. . I' CampIotoh_3.oIld...... . . . PrInt your nIIM MCIIdd,... on \hi tevIf'II of thiI fann 10 met we un ,,,,,m thl. card to you. . AnKh thI. fann to the front of the maMlMKt. Of on the beck II IplC' doH not permh. I . Wrfll'lIlturnRlClfptRequaltlCt'onthemelp6lclbllowlhlenldlnumblf 2 D Reltricted Delivery ti . TN Return RICI6pt w. ahow to whom the arUde WII dlllYlrecI and the dill' .. Ii _. C.nlUlt .tm..tar f., r... I 3. Artlel. Add....ad t.: 48. Artlel. Numbl, ill Cal's Cars Inc. P 01 e l419 Trindle Rd. 4b. S.rvlce Type II Carlisle PA 17013 0 RII1lI.tarad Oln.urad iI C.rtlflad 0 COD o Exp.... M.n Ii] R.Mn R.eolpt f., 7. D. I .... wl.h t. ,ocolvo tho roll.wlng ..rvlce. II.' an oxt.. fOIl: 1, 0 Add......'. Add.... . . . .. 6. Slgnot 2 ,; PS F.rm , Oecember 1991 EXHIBIT "c" ..."'. .....~ ,~~..,.- ",.....'-- '. .. , Counterclaim for damages arising from Plaintiff's alleged breach of contract is barred under the doctrine of res judicata, WHEREFORE, Plaintiff prays that jUdgment be entered in favor of Plaintiff and against Defendant on Defendant's Counterclaim. Respectfully submitted, I/,~ ( ~I,~. Philip ,Brigan Counsel for Plaintiff LEGAL SERVICES, INC. 8 Irvine Row Carlisle, Pa 17013 (717) 243-9400 '. , - RICHELLE MORRIS, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v, NO, 94-1099 CIVIL TERM CAL'S CARS, INC. Defendant CERTIFICATE OF SERVICE I, Philip C, Briganti, hereby certify that I am this ~~ day of July, 1994, serving the foregoing Motion for Judgment on the Pleadings upon Samuel W, Milkes, Attorney at Law, 52 East High Street, Carlisle, Pennsylvania, 17013, by first-class mail, postage prepaid, Philip C, Briganti Attorney for Plain ff LEGAL SERVICES, INC. 8 Irvine Row Carlisle, PA 17013 (717) 243-9400 - c:= ..... .-.. - a. w N -' => -, - . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUN1Y, PENNSYLVANIA RICHEUE MORRIS, Plaintiff NO, 94-1099 Civil v. CIVIL AcrJON lAW OO'S CARS, INC" Defendant DEFENDANT'S ANSWER TO NEW MATIER COMES NOW, the Defendant in the abovc<aptioned action, and by way of response to Defendant's new matter, responds as follows: 75. Admitted, 76. Admitted. 77. Admitted. 78. Admitted. 79. Denied. The appeal was generally 'from the judgment rendered by the District Justice on the date and in the case mentioned below,. without segregation of the claims of the Plaintiff and Defendant, Both matters before the District Justice were docketed at the same number below and were heard as one case. Further, pursuant to Rule 1004(C) of the Rules of Civil Procedure Governing Actions and Proceedings before District Justices, Cal's Cars may properly assert its claim by way of a Counter-claim, .. 80, Admitted. 81. Denied for the reasons stated in 1179, 82. Denied that Defendant failed to respond. Defendant filed a Counter-claim to Plaintill's Complaint, thus preserving and raising beFore this Court the matters presented in DeFendant's Counter-Claim. 83, Admitted. as stated in 1179 of DeFendant's Answer to New Matter. 84. Denied. for the reasons state above. especially in 1179 of this Answer. WHEREFORE, for the reasons stated above, DeFendant respectfully requests that the relief requested pursuant to Plaintill's New Matter be denied and that the respective claims of both parties be heard. ?(5(cn Respectfully submitted. .r:7~ 'BY: Samuel W. Milkes, Esq. JACOBSEN & MllKES 52 East High Street Carlisle. PA 17013 (717) 249-6427 Attorney No, 33130 I hereby verifY that the statements made in the foregoing are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa,C,S. Section 4904. relating to unsworn falsification to authorities. Dated: 7{)~ ".' IN TIiE COURT OF COMMON PLEAS OF CUMBERLAND COUNlY, PENNSYLVANIA RICHELLE MORRIS, Plaintiff NO, 94-1099 Civil v. CIVIL ACflON lAW CAL'S CARS, INC" Defendant CERTIFICATE OF SERVICE I, Roberta A, Hockenberry, hereby certify that a true and correct copy of Defendant's Answer to New Matter, in the above-captioned matter was duly selVed upon Philip C. Briganti, Esq., by first-class mail, on July 6, 1994, addressed as follows: Philip C, Briganti LEGAL SERVICES, INC. B IlVine Row Carlisle, PA 17013 I hereby verify that the statements made in the foregoing are true and correct, understand that false statements herein are made subject to the penalties of 18 Pa,C,S, Section 4904, relating to unsworn falsification to authorities. Dated: July 6, 1994 ~ P~~Jur:t R BERTA A. HOCKENBER f';", ,>;;T.~;;.. ~ ~ ~ ~.", ~ .:<:::..... :! - , ,-:',':-"- ~ "! 0") "., ~ . " " proceedings, as well as the subject matter and the parties in those proceedings, were the same as in the case at bar, WHEREFORE, based on the records, papers, pleadings and file of this action, Plaintiff moves that jUdgment be entered in her favor and against Defendant on Defendant's Counterclaim. Respectfully submitted, Ph&'C~ Attorney for Plalntiff LEGAL SERVICES, INC. 8 Irvine Row Carlisle, PA 17013 (717) 243-9400 -,' v, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW RICHELLE MORRIS, Plaintiff CAL'S CARS, INC, Defendant NO, 1099 CIVIL 1994 CERTIFICATE OF SERVICE . d I, Philip C. Briganti, hereby certify that I am thlS ~;( day of JUly. 1994, serving the foregoing Amended Motion for Judgment on the Pleadings upon Samuel W, Milkes, Attorney at Law, 52 East High street, Carlisle, Pennsylvania, 17013, by first- class mail, postage prepaid. ~(~ Phllip ,Brigan Attorney for Pla tiff LEGAL SERVICES, INC. 8 Irvine Row Carlisle, PA 17013 (717) 243-9400 ........ ........ ::: --. ~e ~!J-I u.l~c'i:- ~;.t,C:~..i \4i.~"..~ ...., :~I-X;:' c..-rt J'I ,~ ':_J....- ,>.~:.:. ~ .~'.~~;2 I..:;, Q'';' --- en - :c- e.- N .... -. RICHELLE MORRIS, Plaintiff :IN THE COURT OF COMMON PLEAS OF : :CUMBERLAND COUNTY, PENNSYLVANIA . . v :CIVIL ACTION - LAW CAL'S CARS, INC. Defendant. . . :NO. 1099 CIVIL 1994 . . ORDER OF COURT AND NOW, this , 1994, upon day of presentation and consideration of Plaintiff's Motion for Judgment on the Pleadings, and Defendant's Answer and New Matter in response thereto, leave of Court is hereby granted to allow Defendant nunc pro tunc, to appeal from the District Justice decision below, to the extent of the claims previously presented by Defendant in its previously filed Counterclaim. Upon the filing of an appeal within twenty days of the date of this Order, Plaintiff's Motion for Judgment on the Pleadings is hereby DENIED. By the Court, J. RICHELLE MORRIS, Plaintiff IN THE COURT OF COMMON PLEAS OF v CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 1099 CIVIL 1994 CAL'S CARS, INC. Defendant. DEFENDANT'S ANSWER TO AMENDED MOTION FOR JUDGMENT ON THE PLEADINGS The Defendant, Cal's Cars, Inc., by its counsel, Samuel W. Milkes, Jacobsen & Milkes, responds as follows to Plaintiff's Amended Motion for Judgment on the Pleadings: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted that Plaintiff raised this issue in Plaintiff's New Matter. Denied that there is a legal basis for Plaintiff's position. To the contrary, Defendant asserts that they are entitled to raise their claims as a counterclaim to the Complaint filed by Plaintiff. 5. Admitted. The Court is further informed that by stipulation of the parties, it was agreed that the Answer to New Matter filed by Cal's Cars, Inc. on July 6, 1994, constituted a valid Answer to the pleadings and Plaintiff withdrew her request that all averments in her New Matter be deemed admitted for failure to file an Answer. NEW MATTER 6. The District Justice docket number appealed from by Plaintiff included a resolution of both Plaintiff's and Defendant's claims which had been presented to the District Justice. 7. The Plaintiff's appeal from the District Justice decision was not clear in indicating that the Plaintiff intended only to appeal that portion of the judgment below adverse to Plaintiff. B. The judgment entered by District Justice Day below was a single determination and did not involve separate determinations in , separately docketed cases. 9. The Pennsylvania Rules of Procedure are to be liberally construed to effect their intended purposes. These rules, at Rule 1004 of the Rules of Civil Procedure Governing Actions and Proceedings before District Justices, allow for the Defendant's filing of a Counterclaim in this matter. 10. It is not be equitable, foreseeable, or intended under the rules of civil procedure to dismiss a Counterclaim, where an appeal from a District Justice judgment has been filed, a counterclaim has been timely filed, and where the Plaintiff now claims that the Defendant should have asserted its claims as an appeal rather than as a counterclaim. WHEREFORE, for the above-stated reasons, Plaintiff's Motion should be denied. Alternatively, Defendant respectfully asks leave of court for the opportunity to have its counterclaim be considered an appeal from the judgment nunc pro tunc. Re;;'~ .Efy: Samuel W. MJ.lkes JACOBSEN & MILKES 52 East High Street Carlisle, PA 17013 (717) 249-6427 Attorney No. 33130 RICHELLE MORRIS, Plaintiff IN THE COURT OF COMMON PLEAS OF v CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW CAL'S CARS, INC. Defendant. NO. 1099 CIVIL 1994 CERTIFICATE OF SERVICE I, Samuel W. Milkes, hereby certify that a true and correct copy of Answer to Amended Motion for Judgment of the Pleadings, in the above-captioned matter was duly served upon Philip C. Briganti, Esquire, by first-class mail, on JUly:Z.a:: 1994, addressed as follows: Philip C. Briganti LEGAL SERVICES, INC. 8 Irvine Row Carlisle, PA 17013 I hereby verify that the statements made in the foregoing are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn f.l.ifie.ti.. ~~ Dated: ...., ~~ flLC(;-OffJCE Of be fiil1THOHOTA~Y CUHaERL"'~O COUHTY I'EHHSYlVAHl4 JUt 28 I 47 PH '9~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA RlCHELLE MORRIS, Plaintiff v. NO, 94-1099 CML TERM CML ACTION LAW CAL'S CARS, INC" Defendant PRAECIPE To the Prothonotary: Please note my change of addreBB effective immediately. ReBpectfully Bubmitted, 8.€. JACOBSEN & MILKES 52 East High Street CarliBle, PA 17013 (717) 249-6427 Attorney No, 33130 Counael for Defendant Cal'B CarB, Inc. ~ -- en - 0"> ~~ ~... "'z "'~.c..'"):! U:z% ~oc.>~ :~ ;:~=-, . .;~~ - ~l:.r. .1.4 U)u.' ,':%Q.. ';;> 1.."-,, C' :E: 0- ~ CJ M .." :::t ~ that Rule 1004 of the Rules of Civil Procedure Governing Actions and proceedings before District Justices allows Defendant's filing of a counterclaim in this matter. The Notes following Rule 1004 state in relevant part: subsection C permits the appellee, when there were cross-complaints in the action before the district justice and the appellant appeals from the judgment on his complaint or on both complaints, to assert his claim by way of a counterclaim in the court of common pleas if the claim is cognizable as a counterclaim in that court. However. even when this Drocedure is ~ermissiibile: the aDDellee must. if he desires to use !t~ ~ti__ a!ve a notice of aDDeal under Rule 1002. with the time extension allowed bv subdivision C (see the Judicial Code, 5 5571(f), 42 Pa.C.S. 5 5571(f), if he intends to aDDeal from the iudament on his comDlaint and the aDDellant has not aDDealed from that iudament.,. Pa.R.C.P.D,J. 1004, Note (Emphasis added). Thus, the intent of the Rule is to allow a counterclaim in the circumstances presented here only if the appellee has filed a Notice of Appeal within 30 days of receiving the appellant's Notice of Appeal. Defendant/Appellee in the present case did not file the required Notice of Appeal and therefore may not appeal the judgment on his claim by way of a counterclaim now. 10. Denied. The Notice of Appeal requirement is imposed as a prerequisite to the filing of a counterclaim in these circumstances by Rule 1004(f) of the Pennsylvania Rules of civil Procedure Governing Actions and Proceedings before District Justices. It is equitable, foreseeable and intended that Defendant's counterclaim be dismissed where Defendant did not :;;;'a ~.. I.t...\...Q. A :.^ Ja MUller-peterson Philip C. Briganti Attorneys for plaintiff LEGAL SERVICES, INC. a Irvine Row carlisle, PA 17013 (717) 243-9400 file a timely Notice of Appeal in accordance with the pennsylvania Rules of civil Procedure, Respectfully submitted, f~,:':"~:W';:f)"~~ -c ~ (If SUSAN K. DAY DISTRICT JUSTICE COOK'TOWN'HIP IlIC1lIllOH_ ,,",DUlDTO_Hll' lIT, HOU.Y _&IOIIOUOH IOUfH MIDDLITON TOWNIHt, DISTRICT CJ8.3-G3 omca ....lIlI - mMILL 1TRUT.,.o. lOX "' MOUNT HOLLY ....IN.... PA ,,... Reserved Judgment Determination Plaintiff: C&l's Cars, Inc. Defendant: Riche11e Harris Complaint No: CV-26a-93 Date of Hearing: 2-4-94 I hereby render judgment to the plaintiff for $100.00 together with costs of $46.50. Total judgment $146.50. -0- rendered on cross complaint. Comment: The above reflects the repossession fee and costs. Cal's is still in possession of the vehicle therefore will be able to resale the cer. No judgment is given on the counter suit. The car was purchased "as is" with a 50-50 warranty. ALL PARTIES ARE HEREBY NOTIFIED THAT THEY HAVE THIRTY (30) DAYS PROM THIS DATE WITH WHICH TO PILE AN APPEAL WITH THE COURT OF COHHON PLEAS, OFFICE OF THE PROTHONOTARY, CUMBERLAND COUNTY COURT HOUSE, CARLISLE, PA 17013 Susan K. District 09-3-03 SKD/ldk '. "Exhibit A" The above-named plaintiff, Richelle Morris, verifies that the statements made in the above Answer are true and correct. The plaintiff understands that false statements herein are made subject to the penalties of 1a Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Date: M- \ 6. q <--\ ~ A r n Q ~ f ~ ~O -<..;...)0-- R chelle Morra, Pl ntiff .< I il I) ., RICHELLE MORRIS, plaintiff IN THE COURT OF COMMON PLEAS OF . . CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW v. CAL'S CARS, INC., Defendant : NO. 1099 CIVIL 1994 CERTIFICATE OF SERVICE I, Monica L. Lahr, hereby certify that a true and correct copy of Plaintiff's Answer to Defendant's New Matter in the above-captioned matter was duly served upon Samuel W. Milkes, Esquire, by first-class mail, on August 10, 1994, addressed as follows: Samuel W. Milkes JACOBSEN & MILKES 52 East High Street carlisle, PA 17013-30a5 I hereby verify that the statements made in the foregoing are true and correct. I understand that false statements herein are made subject to the penalties of 1a Pa.C.S. 54904, relating to unsworn falsification to authorities. Date: p~/()-11 4!~ /-LL Monica L. Lahr 6!; - iE CD In C"') ~::: ~:,";..! I,i ~l f'1 :~. gxU:< y.,t.," , .... .... ':~ t~ ,..1 ~~ ,-~ ',< .~ ,- ...:i::.~: ,: ~~~ ~ ::~ 'l'~~ <c C) ~. :> """" PRAECIPE FOR LISTING CASE FOR ARGUMENT (tblt be typewritten and subnitted in mlpli,....te) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argunent Court. --------------------------------------------------------------------------------------- CAPTION OF CASE (entire capticn lIUIt be stated in full) RICHELLE HORRIS = c:> .. (")0 <: "'tJXT ._ m'" or"'lrll- ~~~ ,~; :~, ,_-;.e ..(-.t 11:..,:::..... ;:oo~ ..r.,,,,>zn ";c.:.:~rY'l ;z:~ ....'" ..,'" .., (Plaintiff) .." VB. C5 N W ..... ::II: . CD .z=... CAL'S CARS, INC, (Defendant) No. 1099 Civil 1994 l. state matter to be argued (i.e.. plaintiff's IlDticn for new trial. defendant's derun:er to CXJ1tllaint, etc.): Plaintiff's Motion for Judgment on the Pleadings 2. Identify counsel who will argue case: (a) for plaintiff: Address : Philip C, Briganti, Esq, Legal Services, Inc., 8 Irvine Row, Carlisle PA 17013 (b) for defendant: Address : Samuel W, Milkes, Esq, Jacobsen & Milkes, 52 E High St., Carlisle PA 17013 3. I will notify all parties in writing within t1IIO days that this case hils been listed for argIm!Ilt. 4. Arg\m!nt Court Date: December 7, 1994 Dated: 1!/1.r17'1 A~(~ RICHELLE MORRIS, . IN THE COURT OF COMMON PLEAS OF . Plaintiff . . . CUMBERLAND COUNTY, PENNSYLVANIA . . . v . CIVIL ACTION - LAW . . . CAL'S CARS, INC. . NO. 1099 CIVIL 1994 . Defendant. . . DEFENDANT'S PETITION FOR ALLOWANCE OF APPEAL NUNC PRO TUNC Defendant, having previously raised the assertion of entitlement to appeal nunc pro tunc in its Answer to Plaintiff's Amended Motion for Judgment on the Pleadings, formally requests of this Court that, should the Court determine a portion of the judgment entered by the District Justice below is res judicata against the Defendant, Defendant be allowed to appeal that portion of the judgment nunc pro tunc. In support of this Petition, Defendant incorporates those arguments made in its Brief in Opposition to Motion for Judgment on the Pleadings. In further support of this Petition, Defendant relies upon the filings of record, which are attached as exhibits to its Brief, and further asserts that Defendant's failure to file an appeal in this matter from the District Justice Judgment was based upon counsel's reasonable understanding that the appeal which Plaintiff perfected constituted an appeal from the entire, single judgment entered in this matter. This belief was based partly upon the single nature of the judgment, combined with the fact that the decision below was adverse to Plaintiff on her claims and her defenses, as set forth . ~~~,~,.~ , ": further in Defendant's Brief. Wherefore, for the reasons set forth above, Defendant requests of this Honorable Court that it allow her appeal nunc pro tunc. Respectfully submitted, B&.~Lf JACOBSEN & MILKES 52 E. High Street Carlisle, PA 17013 (717) 249-6427 Attorney No. 30130 I hereby verify that the statements made in the foregoing are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. section 4904, relating to unsworn falsification to authorities. ~~ Samuel W. Mikes Dated: \~~~ ":" . . - RICHELLB MORRIS, . IN THE COURT OF COMMON PLEAS OF . Plaintiff . . . CUMBERLAND COUNTY, PENNSYLVANIA . . . v . CIVIL ACTION - LAW . . . CAL'S CARS, INC. . NO. 1099 CIVIL 1994 . Defendant. . . CERTIFICATE OF SERVICE I, Samuel w. Milkes, hereby certify that a true and correct copy of the Brief in Opposition to Judgment on the Pleadings and the Petition for Allowance of Appeal Nunc Pro Tunc, in the above-captioned matter was duly served upon Philip C. Briganti, Esquire, by personal delivery, on December 2, 1994, addressed as follows: Philip C. Briganti LEGAL SERVICES, INC. a Irvine Row Carlisle, PA 17013 I hereby verify that the statements made in the foregoing are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Dated: \.z-I'?-\9tf ~~ rSamuel w. M~lkes -11- -.:r- <:,., ~... ~. ... ""~' :"'c ~, , c_ o-< . .. -. ('J ......, w '" .. ~ .. . COMMONWIALTH Of PINNSYLVANIA COURT Of COMMON PLlAS NOTICE OF APPEAL fROM ~. .}e" /qq{ DISTRICT JUSTICE JUDGMENT JUDICIAL DISTRICT COMMON PLIAS No. 1099 Civil 1994 l'\} NOTICE OF APPEAL Noliee i. given that the appellant ha. filed in lhe above Caurl of Cammon Plea. an appeal fram lho judgment rendered by the Di.trict Justiee an lhe dalo and in the case mentioned be'- ~I~rs. Inc, L1ANl 1207 Trindle Road 1.....""r~"'NMIlOfOJ susan.!. Day PA ZPCODt 17013 an Carlisle I , Richelle Morris N 2/4/94 / " Cal's Cars, Inc, CV 19. 93CV0000268-93 . UI9 52 E. HI h Thi. black win be signed ONLY when lhi. notation i. required under Po. R.cPJP. No. 10088. Thi. Notiee of Appeal, when received by lhe Di.lriel Ju.lice, will aporale a. a SUPERSEDEAS ta lhe judgment far pasmlian in lhi. ca... i es, Jacobsen & Milkes, Street Carlisle PA 17013 If appellant was CLAIMANT (see Pa. R.C.P.J.P. No. 1001 (6) in action be/ore District Justice, he MUST F/LE A COMPLAINT within twenty (20) days after filing his NOTICE 0/ APPEAL. SifTlalulO at Pral_Y Of Depuly PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section 01 10fITI 10 be used ONLY when appellanl was DEFENDANT (soo Pa. R.C.P.J.P. No_ 100 I( 7) in acllon belom Dislticl Justice. IF NOT USED. detach from copy 01 notice 01 appeal to be served upon appellee). PRAECIPE, To Prothonataty Enter rule upon . appolloo(.). to file a camplaint in this appoaI NIm> 01 ~s) (Cammon Plea. No. ) wilhin twonly (20) day. oller service of rule at .uflor entry of Judgment of non pIO~ SqlatllU 01 __ Of his .,/llmoy Of __ RULE, To , appeIlee(.}. NIm> 01 ...-<<s) (I) You are notified that a rule is hereby enlered upon you to file a complaint in this appeal within twonly (20) day. oller lhe dolo of serviee of Ihi. rule upon you by porsanal .ervice at by certified at registered maiL (2)11 you do not file a camplaint wilhin this time. a JUDGMENT OF NON PROS WlU 8E ENTERED AGAINST YOU. (3) Tho dote 01 service 01 this rule if .ervice was by mail i. lhe date 01 mailing. Date: ,19_. S9lOflJtU 01 ~ Of Dopufy K)PC31HW SWORN (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS DAY OF .19_ Slgn.,ur8 of .mant (,- ( .1_ 1" ;.c :.e ""'\ f"-,,) ..:' ~ j r-..> f.... L" L.~ -\J = .' fJ1 ..L.il -'" ..:JI: :'.. :~. .....j' - - .~' c...c c..o CJ1 CJ1 PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (ThiS p,ool 01 service MUST BE FILED WITHIN TEN (IO) DA YS AFTER /iling the notIce 01 appeo/. Chock oppllcoble boxes) COMMONWEALTH OF PENNSYLVANIA COUNTY OF ; II AFFIDAVIT: I hereby swoor or alflrm lhat I sarved o a copy 01 tho Notlca 01 Appeal, Common Pleas No. . upon the District Justice deslgneted therein on (dete 01 se,vice) .19_, 0 by personel service 0 by (certified) (registered) moll, sendar's receipt atlached hereto. end upon the appellee. {name} , on , 19--0 by personal service 0 by (certilied) (registered) mall, sender's receipt atlached hereto. o and turlherthat I sarved the Rule to File e Complaint eccompanying the above Notice of Appeal upon Iheappellee(s) 10 whom the Rule was addressed on ,19_ 0 by personal service 0 by (certified) (registered) moil. sender's receipt atlached herelo. Slgnatur. 01 oU.cl,I befor. whom "',davII ...s mllde rill. 01 offlcl,l My commission expires on 19-. ....". RICHELLE MORRIS, Plaintiff vs. CAL'S CARS, INC., Defendant IN TIiE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 94.1099 CIVIL TERM IN RE: PLAINTIFF'S MOTION FOR JUDGMENT ON TIiE PLEADINGS BEFORE BAYLEY AND HESS, JJ. AND NOW, this ORDER I:J . day of January, 1995, the plaintifrs motion for judgment on the pleadings is DENIED. The defendant is given thirty (30) days within which to file an BY TIiE COURT, K~:ss,1 ;L e~"O'~....~..:...... P;;;AD/'lS, / ..&.f, appcal !l!!.!!.!< Ilro !!!n!;. Philip Briganti, Esquire For the Plaintiff Samuel W. Milkes, Esquire For the Defendant :rlm r~ \J i' . : ~, ',!1' 1 . i . J~t1 Zo 2 1\0 rlI '95 I.i . ::' ';\:;'1" i ~ t ,,' 1 I I ; I I t I ,I I \ i ; ! i I ; I I I , ~. I;" RICHELLE MORRIS, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLY ANIA vs. CAL'S CARS, INC., Defendant CIYIL ACTION - LAW 94-1099 CIYIL TERM IN RE: PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE BAYLEY AND HESS. JJ. OPINION AND ORDER Before the court is the motion of plaintiff, Richelle Morris (hercinafter "Morris"), for judgment on the pleadings. The pertinent fael~ with regard to the motion arc as follows. Cal's Cars, Inc. (hereinafter "Cal's Cars"), defendant in the instant action, filed a civil complaint, against Morris, with District Justicc Susan Day on November 16, 1993 (Docket No. CY-0000268-93), sceking tbe balance due on a contract to purchase a used car. Morris filed a cross-complaint before the District Justice on December 17, 1993 (Docket No. CY-0000268-93- 00001). The District Justice held a hearing on both complaints on February 4,1994. Thereafter, the District Justice awarded $146.50 to Cal's Cars on its claim and nothing to Morris on her cross-complaint. Following the decision of the District Justice, Morris, on March 7, 1994, filed a notice of appeal of the judgment of thc District Justice on her cross-complaint (Docket No. CY-0000268- 93-00001). She then filed a timely complaint on March 28, 1994. Cal's Cars rcspondcd on April II, 1994, with an answer and countcrclaim, giving risc to thc instant dispute. A motion for judgmcnt on the pleadings is subject to the following standard of review, A motion for judgment on the pleadings is in the nature of a demurrer in which all of the \ 94-1099 CIVIL TERM nonmovant's well-pleaded allegations arc viewed as true, but only those facts specifically admitted by the nonmovant may be considered against him. Such a motion may only be granted in enses where no matcrial fncts are at issue and the law is so clear that a trial would be a fruitless exercise. (citations omittcd.) Kerr v. Boroul!h of Union City. 150 Pa.Commw. 21,24,614 A.2d 338, 339 (1992). Morris contends, in support of her motion, that Cal's Cars should be estopped from asserting its counterclaim because it failed to file a nolice of nppeal from the judgment of the District Justice on its original claim (Docket No. CV-0000268-93). Cal's Cars responds either that it was not required to file such a notice, or that its failure to do so was caused by an error at the District Justice level, justifying allowance of an appeal !!!!!l-" pro tunc. Morris relics on Pa.R.C.P.D.J. 1004(C), and its explanatory note, to support her argument. Rule I004(C) states: C. When judgments have been rendered on complaints of both the appellant and the appellee and the appellant appeals from the judgment on his complaint or on both complaints, the appellee may assert his claim in the court of common pleas by pleading it as a counterclaim if it enn be properly so plended in that court. If the appellant appeals only from the judgment on his complaint, the appellee may nppenl from the judgment on his complnint nt any time within thirty (30) days after the date on which the nppellant selVed a copy of his notice of nppeal upon the appellee. The note following Rule 1004(C) states, in pertinent part: Subdivision C permits appellee, when there were cross complnints in the nction before the District Justice and the appellant nppenls from the judgment on his complaint or on both complaints, to assert his claim by way of n counterclaim in the court of 2 r:"'.':-:--;~:'-:-'!':;.:ore>1J -- . , 94-1099 CIVIL TERM common pleas if the claim is cognizable as a counterclaim in that court. However, even when this procedure is permissible, the appellee must, if he desires to use it, still give a notice of appeal under Rule 1002...if he intends to appeal from the judgmcnt on his complaint and the appellant has not appealed from that judgment. In the instant case, for the purposes of Rule 1004(C), Morris is the appellant and Cal's Cars is the appellcc. Morris has appealed the adverse judgment on her cross-complaint only (Docket No. CV.0000268.93.00001). According to the rule, the appellee must file a notice of appeal if it intends to asscrt a counterclaim in the court of common pleas. Since Cal's Cars has not filed such a notice, it has violated the rule. Both parties, in their briefs, discuss the case of Burr v. Callwood. 374 Pa.Super. 502, 543 A.2d 583 (1988). In Burr, a District Justice issued adverse judgments on a complaint and cross. complaint. One party appealed the adverse judgment, and the other sought, without appealing, to assert a counterclaim at the common pleas level. Because the lalter party failed to file a notice of appeal, it was estopped, by the trial court, from pleading a counterclaim. The Superior Court affirmed, stating: The rule requires any party who wishes to challenge an adverse judgment to appeal that judgment. The rule makes no mention of any circumstances where a separate notice of appeal is not required. A party who wishes to challenge the findings made in reaching the adverse judgment must file a notice of appeal from that judgment. (footnote omilted) Burr at 509, 543 A.2d at 586-587. Cal's Cars contends that it should be relieved from filing a notice of appeal in this matter, despite the provisions of rule 1004(C). The main thrust of its argument is that no notice of appeal was required, because the District Justice issued a singlc judgment, not separate 3 judgments on eaeh claim. Cal's Cars relies on this argument to distinguish Burr, stating that while there werc separate judgments in Burr, there was only one judgment in the instant case. The faet remains, however, that there were two complaints pending before the District Justice bolh of which were resolved by Ihe judgment order. Thus, we agree with Morris Ihat Cal's Cars has violated Rule 1004(C). We also, however, agrec with Cat's Cars that the judgment issued herein by the District Justice was confusing. In the memorandum by which she issued judgment, the District Justice included only one docket number rathcr than two. Furthermore, she indicated that while she was awarding S146.50 to Cal's Cars on its claim, shc was awarding "no judgment" on Morris' cross-claim, though another statement in the judgment was to the effect that the award was "SO." Therefore it is unclear on the face of the document whether the District Justice rendered one judgment or two. Bccause of the confusion caused by the ruling below, we will deny Morris' motion for judgment on the pleadings and allow Cal's Cars to appeal Ihe decision of the Dislrict Justice nunc pro tunc. A nunc pro tunc appeal is properly granted if Ihere is, "a showing of fraud or its equivalent, or a breakdown in official operation." In Re General Election. Nov. 8. 1988, 126 Pa.Commw. 450, 456, 560 A.2d 260, 263 (1989). We arc satisfied that the form of the District Justice's judgment has engendered sufficient confusion to rise 10 the level of creating a "brcakdown." Therefore we will allow defendant to appeal nunc pro tunc. ORDER 94-1099 CIVIL TERM AND NOW, this 11' day of January, 1995, the plaintiffs motion for judgment 4 BY THE COURT. . 94-1099 CIVIL TERM on the pleadings is DENIED. Thc defendant is givcn thirty (30) days within which to file an appeal nunc pro tunc. 5 B. Add........ Ad .nd f.e I. peld) .1 \'1 j! Ii 5! !: Ii !I: ~: l: ~d1' i' ~; f' - \;. . ....- .-.,-.. . . .. ... , .a SE R: ].11:' CompIetl Mlms l.nd/o, 2 'or Idditlonll Hrvk... 1'>1 :,1 Corn....lttm. 3.ancf 4.. b. I.: .. PrInt your name and Iiddf... on the 'ne,., of thi. 'orm 10 thet WI cln :. ,',' filum thit cerd to you. !-. Attach tN, 'Ofm to the Irant 01 the mallplecl, Of on the bKk I' lpeC' doe, not Hfmft. .s . Writ, "R'turn Atc*pl Requel'_. on IhI rMitpIece below the arddt numbI, 2. 0 R..trfcted C"UV8ry c '. ThtReturn Recfipt wlllllf10w to wvhom the.,*" WI. dthettd and the dl" o dllivered. ' Conlult Itm.lt.r for fe.~ I. 3. Anlcl. Addr....d to: 4e. Anlcl. Number p 011 408 065 ~ DJ Sussn K. Dsy 4b. S.rvlce Typ. , 229 Mill St Box 167 0 R.gllter.d 0 I I '!!2 Mt. Holly PA 17065 ](8 Cenllled llU 0 Expr... M.II I C 7. Det. of D.II.. I I I I I I j I I .'.0 wl.h to r.c.l.e . the following ..rvlc.. Ifar en eictr. f..1: 1. 0 Addr....... Addr... r , 714 DOMESTIC RETURN RECEIPT I I , . I ." I 1 I :;~' I ;../ 1 ;:. ':- I '. . '.}; .1 ,- ., .,f," :: f. Ii . I: I .. J 'ER~CE ... 11111 \-\BG. PA 170 19' 06 llHf~ 03/09/94 Official Bu.In... \"'-- ~- _..-~ ~ .. , . PENALTY FOR PRIVATE USE TO A\'OlD PAYMENT OF POSTAGE. S300 " ! Print your nsme, eddress snd ZIP Code here .. . , ; I I I ) I ~s.m-Inoo 81Mn1IaW ..-. Cad*' ItA lIV" ,. , I - I '..:., i (j ~V J i ,~\. ~.. ' { :' -'S;;:j ,..'-, ~ -Vr I ......:> ~\ ",'.',"1 'C., '1 .., ./, I' .. I, i-- I' ,. I I ' , COMMONWEALTH Of PENNSYLVANIA CO~T 0' COMMON PlIAS , . . " " JUOICIAL OISTIICT NOTICE OF APPEAL fROM ~. ;J.t., ,tfQ5 DISTRICT JUSTICE JUDGMENT COMMON PLlAS N.. 10<)9 Civil 1994 NOTICE OF APPEAL Notice i. given that the appellant has filed in the above CaUft of Common Plea. on appeal from lhe judgment rendered by the Di.trict Justice on lhe date and in the case mentioned belcrM NAMl Of '" UANT CuI's Cars, Inc. AOOfIlS Of APf'llLANt 12U7 Trindlc Haad " OR NAoMI: Susan K. Day A" l'A 17013 Carlisle DAtE Of Jl..OGMfN I '" IUchelle Norris 5lGN~/..&~~'GlNI CV 19. Q1r.VOOflfl?r.fl-W, ~l -rC fffii<<iii'"; Jacobsen & Hilkes. LT 19 2 E. HI h Street Carlisle PA 17013 Thi. block will be signed ONLY when thi. notation i. required under Po. R.cPJP. No. /I appellant was CLAtMANT (see Pa. R.C.P.J.P. No. 100BB. Thi. Notice of Appeal. when rec.;ved by lhe Di.trict Ju.tice. will operote a. 0 1001(6J inaction befOfe District Justice, he MUST SUPERSEDEAS to the judgment lot posse.sion in Ihi. co.e FILE A COMPLAINT within twenty (20 J days after filing his NOTICE of APPEAL. I rlI, Cal's Cars, Inc. 2/4/9'1 ... , SigJ<Jturo 01 PrOlhOno/iVY Of Ocputy PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section ollorm to be used ONLY when appellant was DEFENDANT fsee Pa. RC.P.J.P. No. 1001(7) in action belore District Justice. IF NOT USED, detach I,om copy 01 notice 01 appeal to be SCfl/ed upon appelloo). PRAECIPE: To Prothonotary Enter rule upon N..YnfJ 01 /JWClJcc(sJ ,oppellee(.), to file 0 complaint in Ihi. appeal (Common Plea. No. ) within twenty (20) day. after service of rule or .uffer entry of judgment of non p'a~ SiglahIo 01 ~lfIt 01 his a,tomcy 01 agent RULE: Ta . appellee(.). 10oo oJ """,/lOC/5} (1) Yau are notified thot 0 rule i. hereby entered upon yau to file 0 complaint in this appeal within twenty (20) doy. alter the dote of service of this rule upon you by personallervice or by certified or registered moil (2) If you da not file 0 complainl wilhin Ihi. time. 0 JUDGMENT OF NON PROS WILL BE ENTERED AGAINST YOU. (3) The date af service of this rule if .ervice wa. by moil i. the dote of moiling. Dote: ,19_. ~oJ--""'Clc<>vty AOrC J 1].84 PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (ThIS proof 01 so,v;ce MUST BE FILED WITHIN TEN (10) DA YS AFTER '''lIIg Ihe nOl'ce 01 appeal Chock epplic.ble boxes) COMMONWEALTH OF PENNSYLVANIA COUNTY OF Cumberland ;.. AFFIDAVIT: I heroby swear or alllrm that I served XX a copy of the Nohce of Appeal, Common Pleas No 1099 Ci V i I 19~6pon the District Justice designated therein on (data 01 so,v;co) .J:J n. 11 , 19-9..5., 0 by personal service Q{ by (cerhlied) (registered) mail. sender's receipt allached hereto. and upon the appellee. (name) _.Ri (' hI> 1 1 I> Mn,.,.i " , on .1:Jnll"TY 1'i ,19 9')1) by personal servlceKJ by (certilled) (reglslered) mail. sender's receipt allached hereto. o and further that I sarved the Rule 10 Fllea Complainl accompanYing the above Notice 01 Appeal upon thoappeilee(s) towhom the Rule was addressed on , 19_ 0 by personal service 0 by (certilied) (registered) mall, sander's receipt BUnched herelo. SWORN (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS 10th DAYOF.J:Jnuary ,19-9.5- A. h---.:Vi.. G:~ tJt:t [;ite;' S,glldfu1ll of Oft,Clif' bctO'D whom dft,d.h',' was "'"Ulu AMUEL H. MILKES Slgnatuto 01 afliant Notary Public Td/(t olOf/IC'd! My commiSSion 91lplfCS on 19 NOlarial Seal L1n4a D. Walteriel<, Notary Public Carlisi. Born, Cumberland County My Commluion Explro' Oct, 2D. 1997 "'''''''''''. Pomtytvario_oI Nolartos ';'~ " \. '1.- ~_..-. ~. " .. ~--,,"<" ,. .II SE 0 R: "I ., Compltlt hi"" 1 andro' 2 'Of .ddlUon.1 tlrv,"" ,_ Complet. h."" 3. and .. . b. . Print 'IOU' name and add,", on the ftv.r.. of thl. fo,," 10 .h111 w. tin r.tUfn thl. 'lid 10 you. . . Attlch thl. form 'a the lront 01 lh1! mlllP'Ie., Of on the back II .pIC' dOl' not permit. I . Wrh. "A,tum ".CIlp. Requested" on.hI m.llp41ce below the.rtIde ~r ~' . TM A,turn A.cllpt wID ,hoW to whom thllftkle WI' deNYlled ,nd the d,t. S dtIlV'feet, Consult altmaater for fel. 1 3. Anl.l. Addr...ed to: 4.. Anl.l. Numbe' I cal's Cars Inc. P 11 E 11419 Trindle Rd. 4b. S.IVlc. TVPo 8 Carlisle PA 17013 0 Rogl.to,.d ItI c.nlflod o Exp'... M.II 7. D I .1.0 wl.h to ,.c.lv. tho 10110 wing IOIVlc.. lID' .n Ulr. IHl: 1. 0 Add'.....'. Add'.... 2. 0 R..trlct.d ~.lIv.rv 1. l' ai . a:: ii Ii' ...; &' ...1 t.dJ: I , I , ;., , Ducembaf 1991 .u...GPO:l~l'" I t L t f I ;;~ \~., . .1,......"'1: ; 'PCB/Korris ! U~mo.8TATE8 POSTAL 8ERVlCE (. t; k. I l' t" , .g;.}~.~/n;~:~;;;':.n"...:.<.'11 ,.-,'",'.-.-..'."--'..'" ','.-,,' .1 - .- f I I . I ," ,.,", I I II Offlclol 8ullne.. PENALTY FOR PRIVATE use TO AVOID PAYMENT OF POSTADE, S300 Print your nama. address and ZIP Code hara . . LIgIt s.rvaa.1nc. elivtnl Row Car".. PA 17013' . -, ~. _. - > i. i , i I \ \ ~ ; '. .J' ",-, . i , . , f';" ,. I' 7:J1f jJ'1.J bUU --.-- ~ Certified Mall Receipt No Insurance Covorage ProVided __ 00 nol usa tor Inlernaltonal Mall .:.m.-.1'::a (Seo Aovorso) ...... Susan K. Da D.J, 51,.., & Pia 229 Mill Street PO . SII.Ie " Zlf' Cude Mt. Holly Spgs. PA 17 65 ......... $ 13.~ C.rMoed r_ 1. 0 5petc1.IDof'~I.,r_ RM"1C1ffl:i Ottff\1tf}' fN! Rerum "<<"PI Sho.l.'rlQ ~ to Whom & Oatf! OctI_tloJ - R.IUIn n.nlpl Stto....lnqlo Whorrl ~ Dale. A Add..." 01 rma".('I)' ~ : TOTAl ",,' "-,\.. , P.., o 1ftit's ,-;;;J "'"1 ~ f\Kl"'", '" E & .n 'L 1.0 i';.;/.nj..,~,., ,'.f;.c~~";" I -2'..__.._.. ., " CompIet, hltnl 3. and 4. . b. J.'.",.Print Your Nme and Iddte.. on lhe flV.,... of thi. form 10 Ihlt WI can Ntum thIt CItd 10 you. , ,.." ARIch tbIa form 10 the front of the maiIpMce, or on the _Il. If .pace I ' don not penn/f, i:' Woh...ft.....ftoco/ptft_.......u..m..loIo..bolowlh..nlclollllmbo' 2. 0 R.ltrlcted D.I/very I , ,';, The A.tum RlCtIpt d thow 10 whom the .rtide WI. ~ and lhe hi, ' Ii _. ConlUII IlmUI" fo, f... : J 3. ArtJcle Addrelled 10: 41. Art'c'. Number :1 SUSAN K. DAY, DISTRICT P 734 293 600 j e . JUSTICE DISTRICT 09-3-03 4b. ServIce Typ. ;!l 129 MILL-STREET ~ ~:,'I" ~\..L I OUNT HOLLY SPRINGS, PA 0 EJop ~ 1;l1jJ I 7065 7. De ..11 0., I . ~ I I aM~ I .ndf. I 6. SIgn ure : ! PS Form ,.s'i -..'". ..--...--r-----.......~..._.....,._.~~_.""-.~ - .~t I I 1110 wllh. 10 . r_lve the fOllowIng lervlc.1 (for en .xtre foe): 1. 0 Addreu"'1 Addreu 1: Ii f r ! I ";'V If requelled J . D.c.mber 1991 .u.a. GPO: 1112 m lar DOMEsnc RETURN RECEIPT t:... '~~i'?,"~ ,. . On" p !_~,~'Jf L13 599 ~ Certified Mall Receipt No Insuranc C ....... Do nol use,O overage Provided ':'-:::::,1':n (Sea Revors~; lnrornilhonal Mail Seollll Richelle Morris 51'"., c\ No 205 lv, S ri f PO. 51arll A 111I Codfl n 'ield Bailin S rin s Po'~9'l Rd. PA 17 0; $ "...-)2- 1.~0 CfltMt'dFwo Spttcr.tICMI,w>,-, Flit) nl'!III\.IOlIDt"I,_t-,fpt. o ",,!UIO RlKD.p! "how> m to WhOm & D3!flv Ot'I'''::!PlI :;; HOlum Rec;f01P 5 Dalll, A Add .. .., TOTAL ci 0\ reM C> CD ~l,,"itu. '" E & ~ - -- --.---- .11I , I,;: . ",...-11 E ER: , 'I .. CornP'ttllttml 1 .nelfeM' 2 la, .ddltianll ..rviee.. . ~ .' Complttllt.ma 3. .net .. . b. ~ ^ C :. Print yaut Nnw tnd .ddr... on thl rev.'" or tN. farm 10 thlt w. c.n , .,' return this "rei to you. IiI ".. ,. ,.An.ch. thI. larm to thlltont of the m.llpfec.. eM' on thl blck II .pac. , dot. nqt ptrmh.~ J .J ,,'..' .~.. Writi.':ftetUm....c.1pt Requnted" an thl m.l/Ptee bt;low thl.rtIdt number j " .,' .ThI RIIUm Receipt wll shoW to wham \hI.rltes. WI' dll/veltd.nd the dlt. ;. g delivered. : 1 3. Artlcl. Addre...d 10: ii Richelle Harris Ie 205 w. Springfield Road is Boiling Springs, PA 17007 IIIl . ~._.,,'tlo i Ie \e I .1.0 wl.h 10 .1C.lv. the lallawlng ..,vlc.. 110. .n .xt.. 1111: 1. 0 Addre....'. Addr... i :9-. g II: i II: III .Si !I 2. 0 R..,dc,.d D.llv.ry Conlult Itm81ter for fll. 4.. Artlcl. Number P 734 293 599 4b. S.rvlc. Typ. o R.gl.,...d 0 In.urod ~ C:.rtlllod 0 COD o expr... M.n 0 R.,urn R.c.lp 10. 7. D.,a 01 D.llv.ry \ .~1''l5 & >- B. Addre....'. Add.... (Only 1I..qu..,ed t .nd I.. I. p.ld) ~ ~ o - 6. Slgn.,ur. (Ag.nt) .~ ; ,; PS Farm . Dec.mbe. 1991 *u.a. GPO; 1112 m 1. DOMESTIC RETURN RECEIPT ~~ ) . J "'"' """ - I: >- -,," M. '." m '" "" u..o ...... ~""\ '-. -- RlCHELLE MORRIS, Defendant NO. 1099 CIVIL 1994 CAL'S CARS, INC. PlalntilT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW COMPLAINT COMES NOW, the Plaintiff, Cal's Cars, Inc., by and through its counsel, Samuel W. Milkes, Esquire, Jacobsen & Milkes, and states as follows: 1. The Plaintiff Cal's Cars, Inc., is a Pennsylvania for-profit corporation located and doing business as 1207 Trindle Road, Carlisle, Cumberland County, Pennsylvania 17013. 2. The Defendant, Richelle Morris, is an adult individual, residing at 205 W. Springville Road, Boiling Springs, Cumberland County, Pennsylvania 17007. 3. On or about July 8, 1993, pursuant to a "Used Vehicle Order,", Defendant purchased from Plaintiff a 1983 Ford EXP (Serial No. 2FABPOI42DX179211)). A copy of the "Used Vehicle Order" is attached hereto, incorporated by referenced and marked as Plaintiffs Exhibit "A". 4. The sales price of said vehicle was $2,450.00, and after taxes, filing fees, license plate fees and notary charges, the total purchase price was $2,641.00. 5. Prior to taking possession of the vehicle, Defendant traded in a 1983 Dodge Omni for which she received a used car allowance of $300.00, and paid Plaintiffa cash down payment of $641.00. 6. Plaintiff and Defendant entered into a Contract-Statement of Understanding on July 8, 1993, with regard to the purchase of the aforementioned 1983 Ford EXP, wherein Defendant agreed to pay to Plaintiff the total amount of $1,700.00 by payment of the amount of $40.00 per week for a period of 43 weeks, with the first of such weekly payments being due July 26, 1993. Defendant further -1- agreed that, if a default in the payments occurred, Defendant would be responsible for a $100.00 "repo" (repossession) charge and all reasonable Attorney's Fees resulting from any collection proceedings filed against her, as well as a $10.00 per day late charge for sums due and not paid by the due date. A copy of the Contract-Statement of Understanding is attached hereto and made a part hereof as Plaintiffs Exhibit "B". 7. Plaintiff provided to Defendant, with the purchase of the aforementioned automobile, a Buyers Guide which contained a limited SO/SO warranty covering the systems on the vehicle for a period of 30 days, bumper to bumper, which warranty expired on August 7, 1993, pursuant to the Buyers Guide. The Buyers Guide is attached hereto and made a part hereof as Plaintiffs Exhibit "C". 8. On or about August 9, 1993, Plaintiff was made aware that the aforementioned automobile required repair. After making a determination of the specific cause of the malfunction of the automobile, Plaintiff replaced the transmission at a cost to Plaintiff of $235.32, representing one-half the repair cost. Defendant was required to pay the sum of $235.32 representing her co-payment resulting from the SO/50 warranty which was in place on the automobile at that time. 9. This repair was performed under the warranty, even though Plaintiff was made aware of the needed repairs after the expiration of the SO/50 warranty as referred to in Plaintiffs paragraph 7 herein. 10. Plaintiff also replaced the alternator in the automobile, which is a normal part of maintenance and up-keep of an automobile over the course of its life. COUNT I - CONTRACT 11. Plaintiff incorporates its allegations made above. 12. Defendant entered into a contract to purchase a 1983 Ford EXP, Serial No. -2- -+'-"- 2FABP0142DX179211, at a sales price of $2,450.00. Defendant incurred costs for taxes and license on this automobile for a total purchase price of $2,641.00. Defendant traded in a 1983 Dodge Omni and was provided with a used car allowance of $300.00. Defendant paid the additional sum of $641.00 toward the purchase of the automobile, leaving a balance due on the automobile of $1,700.00. 13. Defendant entered into a contract with Plaintiff requiring her to make payments of $40.00 per week toward the total purchase price due of $1,700.00, which payments were to begin on July 26, 1993. 14. Plaintiff received from Defendant weekly payments in the total amount of $460.00, leaving a balance due to Plaintiff on the purchase price of $1,240.00. 15. Despite repeated demands, Defendant has refused to pay any further amounts on this vehicle, beyond the payments totaling $460.00 and the sum of $1,240.00 remains due and owing to Plaintiff. 16. As a consequence of Defendant's failure to pay any amounts on this vehicle since October 5, 1993, Plaintiff has suffered harm from loss of use of the money due and owing from Defendant. 17. During her use of the vehicle, Defendant failed to use the vehicle for its intended purpose in that she drove it at excessive speeds and she failed to properly maintain the vehicle. 18. Following repossession of the vehicle, Plaintiff placed the vehicle at auction and received a net of $45.00 for the vehicle at said auction. 19. Plaintiff incurred a cost of $100.00 for repossession costs related to this vehicle. WHEREFORE, Plaintiff requests this Honorable Court to award Plaintiff damages in the amount of $1,195.00. plus a $100.00 repossession fee, attorney fees and costs, together with interest since -3- the last payment made by Defendant on October 9, 1993, and such other relief as this Honorable Court deems appropriate. COUNT II - FRAUD 20. Plaintiff incorporates its allegations made above. 21. Despite repeated requests from employees of the Plaintiff, Defendant continually refused to make payments after October 9, 1993 on the vehicle in question. 22. Despite repeated requests from employees of Plaintiff, Defendant refused to return the vehicle in question to Plaintiff, causing a repossession of the vehicle to become necessary. 23. Defendant's repeated refusals to return the vehicle in question were made because Defendant wished to retain possession, and thereby the acceptance of the vehicle. 24. Subsequent to the lawful repossession of the vehicle, and after repeated refusals of the Defendant to return the vehicle to Plaintiff, Defendant asserted that she was revoking acceptance of the vehicle. 25. During Plaintiffs attempts to repossess the vehicle, Defendant falsely informed law enforcement officials that an agreement between Plaintiff and Defendant was being worked out so that repossession would not take place, knowing that no such agreement was being discussed between the parties. These statements were made for the purpose of obtaining assistance of law enforcement officials to stop the lawful repossession of the vehicle. 26. During Plaintiffs attempts to repossess the vehicle, Defendant falsely informed law enforcement officials that a Court Order was being sought, or existed, so that repossession would not take place. This statement was made to law enforcement officials for the sole purpose of obtaining their assistance in stopping lawful repossession of the vehicle. -4- 27. Pursuant to the Contract-Statement of Understanding executed between Plaintiff and Defendant on July 8, 1993, Defendant is responsible for all reasonable attorney's fees incurred by the Plaintiff in its efforts to collect monies due form the Defendant. WHEREFORE, Plaintiff requests this Honorable Court to enter an Order awarding to Plaintiff the sum of $1,195.00, plus $100.00 in repossession fees, attorney fees and costs, together with interest since the last payment on October 9, 1993. Respectfully submitted, BY: Samuel W. Milkes, Esq. JACOBSEN & MILKES 52 E. High Street Carlisle, PA 17013 (717) 249-6427 Attorney No. 30130 -5- Dated: cPj'~/i.5 I hereby verify that the statements made in the foregoing are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. .. .~,,..~.~'N 1,',.:Ji,-";;t_ 'i': .. . ....om. I - ~ . CrN: ~~\~ ~:~ STATE 1Jr 7Jp/,ffii ENTER MY ORDER FOR ONE AR 0 TRUCK OR AS FOLLOWS: LJC.ttP. CAR SAlES PRICE OEUVERY & HANDLING TAX FlUNG L1C. PLATES TOTAL PURCHASE PRICE DEPOSIT USED CAR AlLOWANCl: S LESS LIEN S HELD BY EOUITY CASH ON DELIVERY - TOTAL PURCHASE PRICE Thelnlormation you .ee in Ihe WIndow lonm lorthil vehICle II pan ollhll contract. Inlormlllon on Ihe window lorm overrides any contrary prOViltonllO I - Ihe conulct 01 sale. sa Conuaca to De I(J In YAK' 19 UC HP STOCKftO 1 O SOLD I MtllOy make ""S pvrCh&se knOWIng" ",tnOuI .ny 1,I~'.l'lI", "PlIING 0I1InQIlId. by IhfIdlUf 01 his qtnl AS IS. C..-II Sogn.1''''. - -- - ~ Wethul)O.,_.."lOtYtrMsv'I'IIC~Iel. ..IIt'o'IN"y~4~ l:. ,tII.bUrluf~ SOLD WITH .wI"'DOIu~ tOwntlplyt .~ n'l_ .ana ,IlI'p.l,t ~0I1OUt11\llleosld5*1l "'ARRANTY ~wClOl\lWl.l1 AIl"pol",,""'~be INCl4ttOUI" ""...-.c:.,lhopnt \hOPI.utnOflllfdbyGealitr Nf'-'1WINd Q, . WtI do ntII _"IIi1I"" wn. bIU', gla" ()OCt. hlWl" ur 'OII.hU Oo.lIfsSc)nAllJI. " ",?, '.' .",.. "'.~' ~ . , 1"""'.14..tau..IdDoK..CII....."''''' olI'lit~""""'" ",",and~"'''''pulCftUlCOl*'''' tam 1.,..,sCllaQIOl')lOfrollld ACKNOWUDGI R(ClIPI 01 ACQMPLE IE CoPYQf" THlSOAD(AClN ttiE DAlE SHC/tIHABOVE tl'ltllOur,,"'N"''' ....prNt.-:tl,CUlICWlWU oIlf11&.1'..n"W1II1(1M1lO\11'1lulfW"-"W."lhIllOId."'rnalOt .,rwle A.."'~toMl""\UOaeCtIu~I"OIt'CWl'rh' DMllIClClfOl''' RrIQIrGIIUuI ...... fIPPNh"lQCWI..CldoInlIIlIf.......... fNk1nowllll/'lf" ,.,.~ Akl.... '1IiIINl!II'IIlhllU wn.._NoSDI.""'UWd01 "....." 1.".,accl1ll~ 19 _._ 55. No. auy.,..5_.. ~. (' \". \ \ q ('{"'co.. 1 1 lo....t) , -... Pl1anI ..___ __.._ - AUTcx...E FORM MXlO THI. ORDI!R I. HOT VAL.ID UNL.II.. SIGHI!D AND "'CCIIPTaD .V QaAL.aR . .... ---:. ( '. Acc.ptedb1 .~ ...,.'.Ii' ..'..,. .' -.-- . .OEALlRllKIHAfUAI PLAINTIFF'S EXHIBIT "A" ........ ... ..,__ _ .........~ . 4 '. . . t....: .. C 1419 Tl"illdl~ let ':' . . .... . ' .carU.a.,. ,. 17013 .. ,.. . . f~.J4 : . . ~J~ ..-~ 'il :~~~';",,: ,717-238-8182. .~.. Contract- State.ent of Vnd.r.t"lldill~' " .,:( 1~C.~~~~~i.~_havill~ Darch...d .. .O~. ' ".o' C...k.)_~~~________C~Od..)~_.E.~___~'~::' . " VIN- ~.fJl~2~~t~:~J.Sta.Ll______oll.:L~~. ",,- Hereby understand that I .a ablifated to ' .' "Y. e...s ears {or the tat..l aaaant of $_L~QQ.::' '-This obU"atian is due lInd Da"able ill the" ~tl ..01lIlt .__t.1.QJ~:Q_{or _;;._Li.~____...k... '1 .~ earthel" und.rstand thAt it I should beccDo 1 ..'" I .~~ d.." iD de(ault or .y pay.ent I ... sabJect to ..~ . '. ~ haviD~ this vehicle repassess.d. ADd I a. ....;,: .. responsible {or a $100.00 repa char"e,and 'all .it resoDAbl. Attorney lees resultiDf In call.ct- ..:iil iOD. There is $'0.00 a day l.te ch.r~e .fter :'M r., ::"J1&Vaallt d&te~ 1I11~111 JlIdlle~ell~ Is ellter::ed. ~ First J1&v.ellt dlle _.2_~__'i____________-:~ " .i~D..t1lre~~~<:l~~~'>-___ ~:i';' fl, 9. 9.~' '..:.' DAt. ":_l.::.~-;;'_~_______ .. i.:~~ .x ./J', ~ I~ -/' . . (~. ~fI . - ", .:~. . ~?~. '6:",,,,,,,, """" ",: Non' d~ .. , '. .~ .. \. ,\ ,I BUr~':RS GUIDE C . IMPQRTANT: Spoken promises are difficult to enlorce. Ask the dealer to put all promises In writing. ,. KHp this lorm. ' Elrm ~XP y.JQ83 I D /q dFAePrJil.J.8\::)X/7q~ I / D~R srOCK HuwBlR IC)pclOnIlI VIH HUMBlR WARRANTIES FOR THIS VEHICLE: D AS IS - NO WARRANTY YOU WILL PAY ALL COSTS FOR ANY REPAIRS, THE DEALER ASSUMES NO RESPONSIBILITY FOR ANY REPAIRS REGARDLESS OF ANY ORAL STATEMENTS ABOUT THE VEHICLE. WARRANTY X~.__~\\\_\.\c rf~l.,^p -- o FULL ~ LIMITED WARRANTY. Thedealerwlllpay \ "l) %olthelaborand !ftJ % 01 the parts lor the covered systems that fall during the warranty period. Ask the dealer for a copy of the warranty document lor a lull explanation of warranty coverage, exclusions, and the dealer's repair obligations. Under state law, "Implied warranties" may give you even more rights. SYSTEMS COVEREU ^' 'i...-S t:!~~ . .'. ..\:. J.I;<\.... -:1'. o SERVICE CONTRACT. A service contract Is available at an extra charge on this vehicle. Ask lor details as to coverage, deductible, price, and exclusions. II you buy a servIce contract within 90 days of the time 01 sale, state law "Implied warranties" may give you additional rights. . PRE PURCHAS BY YOUR MECHANIC E THE DEALER f. YOU MAY HAVE THIS VEHICLE INSPECTED S FORM IDr Important ad SEE THE BACK OF THI In used motor vehicles., major defects that may occur . a list of some -~ Plaintiff's Exhibit "e" , tR . :5 .-f o en ~:: ;:!~., W(.,,~X ~%u.z: """'oo~ lr.. ~'Z;: 0(,:'.'11) ",,":) n.: ~.J:.e '..J(;.., 0:'';.1: -' .....l-'UJ - ._;Do.. ~'t~~ ~<.> ...... lD .... '-- ~ CAL'S CARS, INC. , . IN THE COURT OF COMMON PLEAS OF . Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA . . V. . CIVIL ACTION - LAW . RICHELLE MORRIS, NO. 1099 CIVIL 1994 Defendant . . NOTICE TO PLEAD TO CAL'S CARS, INC., C/O SAMUEL W. MILKES, ESQUIRE: You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. Date: 30?/9~ , Phili C. Brigan i Attorney for Defendant LEGAL SERVICES, INC. a Irvine Row Carlisle, PA 17013 (717) 243-9400 CAL'S CARS, INC. , IN THE COURT OF COMMON PLEAS OF Plaintiff . . . CUMBERLAND COUNTY, PENNSYLVANIA . V. CIVIL ACTION - LAW . . RICHELLE MORRIS, . NO. 1099 CIVIL 1994 . Defendant . . ANSWER COMES NOW the defendant, Richelle Morris, by and through counsel, Philip C. Briganti, Esquire, Legal Services, Inc., and as her Answer to Plaintiff's Complaint, states as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted in part and denied in part. Defendant admits that the parties executed the "Contract - Statement of Understanding" attached to Plaintiff's Complaint as Plaintiff's Exhibit "B". However, for reasons set forth below in Defendant's New Matter, Defendant avers that this purported contract is not enforceable against her. Defendant specifically denies that she agreed, or that the purported contract provides, that she would be responsible for all reasonable attorney's fees resulting from any collection proceedings filed against her. 7. Admitted. 8. Denied. Defendant denies that Plaintiff was made aware that the automobile required repair on or about August 9, 1993. Rather, Defendant avers that Plaintiff was aware that the vehicle was defective and in need of repair at the time Plaintiff sold the vehicle to Defendant on July 8, 1993. Defendant further denies that Plaintiff replaced the transmission at a cost to Plaintiff of $235.32, or that this amount represents one-half the repair cost. Accordingly, Defendant also denies that she was required to pay $235.32 as her co-payment under the SO/50 warranty, although she did in fact pay this amount. 9. Denied. Defendant believes, and therefore avers, that Plaintiff was aware that the vehicle had a defective transmission at the time Defendant purchased the vehicle, and therefore before the 50/50 warranty expired. Moreover, Defendant avers that Plaintiff charged her in excess of one-half the actual or reasonable cost of repair, and therefore denies that Plaintiff repaired the vehicle under the 50/50 warranty. 10. Admitted in part and denied in part. Defendant admits that Plaintiff replaced the vehicle's alternator, at a cost to Defendant of $68.67. Defendant denies that replacement of an alternator is a normal part of maintenance and upkeep of an automobile over the course of its life. 11. Defendant repeats and incorporates by reference her averments set forth above. 12. Admitted in part and denied in part. Defendant admits all averments set forth in Paragraph 12 of Plaintiff's Complaint, except the assertion that there was a balance due on the automobile of $1,700.00. Plaintiff denies that there is or was a balance due of $1,700.00, because of plaintiff's breach of the implied warranty of merchantability, breach of the implied warranty of fitness for particular purpose, breach of express warranty, fraud, violations of the Motor Vehicle Sales Finance Act and Unfair Trade Practice and Consumer Protection Law, and Defendant's revocation of acceptance of the vehicle. 13. Admitted in part and denied in part. Defendant admits that the written contract signed by the parties indicates that Defendant was to make payments of $40.00 per week toward a total purchase price of $1,700.00, which payments were to begin on July 26, 1993. However, due to Plaintiff's breach of warranties and other unlawful practices, Defendant denies that she was required to make these payments, or that there was a total purchase price due of $1,700.00. Defendant repeats and incorporates by reference her averments set forth above in Paragraph 12. 14. Denied. Defendant denies that she has made payments totalling $460.00 on the vehicle, but rather avers that said payments total $480.00. Defendant further denies that there is a balance due of $1,240.00. 15. Denied. Defendant denies that she has made payments totalling $460.00 on this vehicle, but rather avers that said payments total $480.00. Defendant further denies that there is a balance due of $1,240.00. 16. Denied. Defendant denies that as a consequence of Defendant's failure to pay any amounts on this vehicle since October 5, 1993, Plaintiff has suffered harm from loss of use of ,-- the money Plaintiff alleges is due and owing from Defendant. Defendant further denies that she owes any additional money to Plaintiff. 17. Denied. Defendant denies that during her use of the vehicle, she failed to use the vehicle for its intended purpose, and denies that she drove it at excessive speeds or failed to properly maintain the vehicle. 18. Denied. Defendant denies that following repossession of the vehicle, Plaintiff placed the vehicle at auction and received a net of $45.00 for the vehicle. Defendant demands strict proof of these averments. 19. Denied. Defendant denies that Plaintiff incurred a cost of $100.00 for repossession costs related to this vehicle and demands strict proof thereof. 20. Defendant repeats and incorporates by reference her averments set forth above. 21. Admitted. 22. Admitted in part and denied in part. Defendant admits that despite repeated requests from employees of Plaintiff, she refused to return the vehicle in question to Plaintiff, prior to her revocation of acceptance of the vehicle. However, she denies that a repossession became necessary. 23. Admitted in part and denied in part. Defendant admits that prior to her revocation of acceptance of the vehicle, she refused to return it because she wished to retain possession of the car temporarily in order to give her leverage in negotiating with Plaintiff to obtain compensation for losses she incurred in connection with her purchase of this defective car. However, Defendant denies that she wished to retain acceptance of the vehicle. 24. Admitted in part and denied in part. Defendant admits that after the repossession of this vehicle, and after repeated refusals to return the vehicle to Plaintiff, Defendant asserted that she was revoking acceptance of the vehicle. However, Defendant denies that the repossession was lawful. 25. Denied. Defendant denies that during Plaintiff's attempts to repossess the vehicle, she falsely informed law enforcement officials that an agreement between Defendant and Plaintiff was being worked out so that repossession was not to take place, knowing that no such agreement was being discussed between the parties. Defendant also denies that she intentionally made any false statements for the purpose of obtaining assistance of law enforcement officials to stop the repossession. However, Defendant asserts that she did want the police to prevent Plaintiff's unlawful repossession of the vehicle. 26. Admitted in part and denied in part. Defendant admits that during Plaintiff's attempts to repossess the vehicle, she mistakenly informed law enforcement officials that a court order was being sought or existed. Defendant avers that she incorrectly believed that such an order was being sought or existed. Defendant denies that she intentionally made any false r__ 0.6. ......_.. statements to law enforcement officials for the purpose of obtaining their assistance in stopping the repossession, and denies that the repossession was lawful. 27. Denied. The "Contract-statement of Understanding" does not state that Defendant is responsible for all reasonable attorney's fees incurred by Plaintiff in its efforts to collect monies due from Defendant. Moreover, because Defendant does not owe the amounts Plaintiff is attempting to collect from her, she is not liable for any attorney's fees Plaintiff may incur in its collection efforts. NEW MATTER 28. Pursuant to Pa.R.C.P. 1019(g), Defendant repeats and incorporates by reference the averments set forth in her Complaint filed with this Court in Riche1le Morris v. Cal's Cars. In2L, No. 1099 civil 1994, as well as the Answer to Defendant's Counterclaim and New Matter filed in that action. 29. The "Contract-statement of Understanding" is an unconscionable and unenforceable adhesion contract, over the terms of which Defendant had no or grossly inferior bargaining power. WHEREFORE, Defendant respectfully requests that judgment be entered in her favor and against Plaintiff, and that she be granted such other and further relief as this Court may deem reasonable and just. ,.'''' ~/;4 ( LA- Philip.?C. BrigaMi Attorney for Defendant LEGAL SERVICES, INC. a Irvine Row Carlisle, PA 17013 (717) 243-9400 t......,..",,,.,._-,.. and correct to the best of her knowledge, information and belief. Defendant understands that false statements herein are made The above-named Defendant, Richelle Morris, verifies that the statements made in the above Answer and New Matter are true subject to the penalties of 18 Pa. C.S. 54904, relating to unsworn falsification to authorities. Date: 3-\c-Q5' ~ .'-..c.S,& ~ "--\'''\ 0 UJ"l""'\ Richelle Morris, Defendant CERTIFICATE OF SERVICE I, Philip C. Briganti, hereby certify that a copy of the foregoing Answer and New Matter is this /.?~day of March, 1995, being served upon Samuel W. Milkes, Attorney at Law, 52 E. High street, Carlisle, Pennsylvania, 17013, by regular mail, postage prepaid. . CAL'S CARS, INC. , . IN THE COURT OF COMMON PLEAS OF . Plaintiff . CUMBERLAND COUNTY, PENNSYLVANIA . . . V. CIVIL ACTION - LAW : RICHELLE MORRIS, NO. 1099 CIVIL 1994 Defendant : Phl.l P Br Attorney for fendant LEGAL SERVICES, INC. a Irvine Row Carlisle, PA 17013 (717) 243-9400 CAL'S CARS, INC. , . IN THE COURT OF COMMON PLEAS OF . Plaintiff . CUMBERLAND COUNTY, PENNSYLVANIA . v. . . . CIVIL ACTION - LAW . RICHELLE MORRIS, Defendant . NO. 1099 CIVIL 1994 . ANSWER TO DEFENDANT'S NEW MATTER 28. No further response is required since Plaintiff has already answered these various allegations in the companion case Docketed at No. 1099 Civil 1994. These prior responses are hereby incorporated by reference. 29. Denied that the Contract-Statement of Understanding is unconscionable or unenforceable as a contract of adhesion. It is further denied that the Defendant was in a grossly inferior bargaining power and it is further asserted that given the general availability of used automobiles for purchase on the open market, the principals of unconscionability or contract by adhesion do not apply to this type of circumstance. Further, these assertions are conclusions of law requiring no additional response. WHEREFORE, Plaintiff asserts that the New Matter of Defendant should be disregarded. :, (J'i(9S- Respectfully submitted, '8Y~~~ JACOBSEN & MILKES 52 E. High Street Carlisle, PA 17013 (717) 249-6427 Attorney No. 30130 .. ., I hereby verify that the statements made in the foregoing are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Dated: '3\~~ Cfs ',' /: '\' ~ ,/!t~ Ll lA- -. !fIB A. STOUGD =- . :::c, v IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 1099 CIVIL 1994 RICHELLE MORRIS, Plaintiff CAL'S CARS, INC. Defendant. CERTIFICATE OF SERVICE I, Samuel W. Milkes, hereby certify that a true and correct copy of the Answer to Defendant's New Matter, in the above- captioned matter was duly served upon Philip C. Briganti, Esquire, by first class mail on March 24, 1995, addressed as follows: Philip C. Briganti LEGAL SERVICES, INC. 8 Irvine Row Carlisle, PA 17013 I hereby verify that the statements made in the foregoing are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. 7(1-~!qS Respectfully submitted, ~,~ BY: Samuel W. Milkes, Esq. JACOBSEN & MILKES 52 E. High Street Carlisle, PA 17013 (717) 249-6427 Attorney No. 30130 _...~ [:'- ~,.J~.'~ h~-'-"I .. L ~.-.. ~ . U"> en ::s= 0_ o 0:;> "" :0-.. ~)-~ ..-f.... )... ~-j ~1 UIC"W::;" ~,~~t: .~ t~j -. ~ ..... !5 :;a.:::;. ^,