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HomeMy WebLinkAbout95-01975 09 - 3-04 Y'.11"'-l~,'d {'-"" COMMON PLEAS NOTIFICATION PlllNIUf REQ~:~!'~I~RM KESSLER, STEVE & LISA 4411A LOCUST LN. HARRISBURG, PA 17109 L COMMONWEALTH OF PENNSYLVANIA COUNTY OF: CUMBERLAND -,=C="-'=~C~'-~:==~' '-I.'ll I ),..1 ~." IlI'joI",.lkln A.tol.t"" Glenn R. FARNER 5002 LENKER STREET MECHANICSBURG, PA 17055-0000 DEfENDANT fJEFf ROSE/NORMAMttROS'E'" 3710 MARKET ST. CAMP HILL, PA 17011 L VS. '..pIUm. 1717) 761-8230 PHOTOGRAPHER: Glenn R. FARNER 5002 LENKER STREET MECHANICSBURG, PA 17055-0000 Docket No,: CV-0000125-95 Date Filed: 2/24/95 .' . '.' " ,\,,' , ' PloasQ bo advisod Ihot nn apponl hna boon llIod in Iho abovo coptionod etHiC. Kindlv U60 this 101m to IndicRle lho fOlulla .n lhlls cnao. nnd return 10 tho Issuing Authority (listod nbovo) RESULT OF APPEAL SUMMARY APPEAL APPEAL STr-lICKEN . appoal has boon disollowod. APPEAL DISCONTINUED. appaal hns boon disontinuod bV appellanl. DISTRICT JUSTICE DECISION UPHELD. court has fObchad sarno doc ill ion 06 original diMr!ct justleD docision. _ disuict justico oHico is to collocl remnining lines/coslS APPEAL SUCCESSFUL. CQurl hns ranched decision tnvolllule 10 delendant. lull ,elund to be isaued bV district Justice offico. pnrtial rotund to bo issued by district justice offico. ReVISED DISTRIBUTION OF FINES AND COSTS II distlict justico olfice is to issue a pnr1inI1elund. plenso indicate any now diahibution in tho nmounl(s) olllnoa nod coats (IS 0 IOSUIt ot tho court's decision. FINE COUNTY CRT COST STATE CRT COST STATE CST! HEARING COST EMS CAT JCP DVC CVC CCD OTHERlploo.o opocilyl CIVIL APPEAL APPEAL STRICKEN. appool ~a. boon di.oUowod, APPEAL DISCONTINUED. appool hoo boon dl.conhnuod by oppoUonl, DISTRICT JUSTICE DECISION UPHELD . cou~ ho. roachod Iho .omo docl,'on o.lho dl.trlct ju'llco judgmonl. DISTRICT JUSTICE DECISION DISMISSED - court h"s ronched a decision lhat does not conCur with the dialrict justice Judgment. WRIT OF CERTIORARI WRIT STRICKEN. oppool hA' boon di.Allowad WRIl DISCONTINUED. Will ha. boon dl.conhnuod bV oppeUanl. OlnrnlCT JUSTICE DECISION SET ADlDE -tho Coso will be IcluJ/ud duo to luogulolity.lnck at JUIIsdlction. 01 imp,oper venue. WRll DISMISSED. dlshict justico docision Was not found to be flowod, I"cklng jurisdiction. or hnving impfopor vonuo. STATEMENT OF OBJECTION (Pl.... glv.. g.n.llllumm.rv 01 Ih. ,.oul1o) OBJECTION DISCONTINUED. objoction hM boen discontinued by tho npPoU"IlI. OOJECnON DENtEO. objoction hna boon doniod by tho COUlt 01 Common PIons OOJECTlON UPHELD. nppellnnt"llo objoction hoa beon upheld bV tho Cow, 01 Com moll PlontS, AOPC 729001 FORM PRINTED: 4/24/95 10:42:22 COMIoIONW.ALTH 0' "HNSYLYANIA COU., 0' COOIIMON PUAS NOTICE Of APPEAL fROM JUDICIAL DI".ICI DISTRICT JUSTICE JUDGMENT ..-. '-..--.--.----- ..- '..- --'----'- ---.. . .----.".--- COMMONPL'ASN.. ')5-J.975 Civil 'J'orm -----..,--,-----..-- ._---._-_.~-_._-_..~_._._-- 4..________._.________._. NOTICE OF APPEAL Notice ii given that Ihe oppellont hen filed in the above COUf' of Common Pleas on appeal from the judgment rendered by the Dilhict Justice on lhe dole and in lhe co.. menlioned below. ~ AP'ulAm ..:::r-tf r ht' F Y AOOIISS 01 AfflUANT ---_..? '. .- :i:-r -.--------.-------T:;~I:~~NAMt:/J l .---------.----'iiv -- !TAlf /// 01/'/,-' jl II ;;'~Nt'"<' ,. COOl /701/ 37/0 /YII,'/rr-T 37,,',';-7 ~f! Of A.DGo\I.fNr---------lirfiiCAYC5I 11\,__.,,) --- ---- ..3/~() /Ji;J- -L k'E -".H to,,' 51/ t/.r QA&MNQ ~---------o.,I lo.""IcUlI! v L J /1 ~ .::.f..-t', PC,I.- / ,1.Ju"'~< ~NAILlltOtAjipi:II"'NI0I----mA116iiNiY~Nt .., i~.J,J~ .$7t1':IG ev 19 0000 /~--'-::. 7f=-__ LT 19 Thi. block will b. signed ONLY when this notation i. required under P<1 R.cPJP, No. 10088. Thi. Notk. of App.ol, when received by lhe Di.trict Ju.tic.. will operate o. 0 SUPERSEDEAS to the judgment fo< po.....ion in this co... 7~V .4 cZ:J..Q... SIQnc1tlJfD of ProthoooMfY Of Deputy /I appellant was CLAIMANT (see Pa, R.G,P.J,P' No, 1001(6) In action before District Justice. he MUST FILE A COMPLAINT within lwenty (20) days after tiling his NOTICE of APPEAL. PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This secllon or form to be used ONLY when appellant was DEFENDANT (SL'U Po, HC.P.J.P, No, 1001(7 j in action before Dis/Jict JustiCL', IF NOT USED. detach from c~y of notice of appe.1/lo be sL'rwd upon .1ppeticcj, PRAEr.IPE, To Prothonotary Enl.r rul. upon K,':>~/.n"- , ~ If.// .... ~.5"'1 M'IIfJoIinJtl/It.'c){sl 'Ibnn , oppell..{.), to fil. 0 complaint in this appeal Ie""""",, Plea. No. 95-1975 Civil RULE, To r~s~/u;! .5-), Ul I' L"SrI , N.TnfJ 01 I.lIl>V/Ici>( s I ) within twenty (20) day. oft.r .ervic. of rule 0< .uffer .ntry of judgment of """ pro. ....., A ~.,-"- SIf]n.""fJ 01 iJil>C...." Of his attomor Of Bgont ./?";/i7 , opp.II..I.), (I) You ore notifl.d that 0 rule i. hereby enter.d upon you to fil. 0 complaint in Ihi. appeal within twenty (201 day. after the dole of *vice of this rule upon, you by personal service or by certified or registered moil (2) If you do not file 0 complaint within this lime, 0 JUDGMENT OF NON PROS WILL BE ENTERED AGAINST YOU, . (3) The dole of: ..rvic. of this rul. if ....vic. wa. by moil i. th. dot. of moiling, Dote: Anril 18, ,19 95, .. '/ /; ( A"--' '-' I ... . ,," / ) ,-.,1- ~ (/ . :I~ ~ /, 51/io')?' 01 Plot_My a ~Iy :'~~i~Pi%;]40'~~' ./~{j.,._._~_. ~f.'~ Pj'1AtWw.~~~!j r '\ 1 ;,I,t11.\I. frflt. 1."1. 'j ';, !,:. ~'II;[I. ih'::I}'PUblfl; " II il!' l;\.Jlll:J('t!.il}(j Lounty i 1..,- ~ "':': -I:, I>' ,'[,:', ..idIlP22, 1991.1 '-"""--'. -. ~ ----. AOf'eJI2.ft,4 COURT FILE STEVE KESSLER and LISA KESSLER, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v. NO. 95-1975 civil Term JEFFREY S. ROSE, t/d/b/a NORMAN ROSE STUDIO, Defendant CIVIL ACTION - LAW NOTICE TO DEFENDANT NAMED HEREIN: You have been sued in Court. If you wish to defend against the claims set forth in the fOllowing pages, you must take action within twenty (20) days after this complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you, and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the PlaintiffS. 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 Cumberland county court House 4th Floor 1 Courthouse square carlisle, PA 17013-3387 (717) 240-6200 Le han demandado a usted enla corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plaza al partie de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita 0 en persona 0 por abogado Y archivar en la corte en forma escrita sus defensas 0 sUS objeciones alas demandas en contra de au persona. Sea avisado que si usted no se defiende, la corte tomara medidas Y puede entrar una orden contra usted sin previo aviso 0 notificacion Y por cualquier queja 0 alivio que es pedido en la peticion de demanda. Usted puede perder dinero 0 sus propiedades 0 otros derechos importantes para usted. specifically was for the provision of services identified by the Defendant as "Memento C", which included professional five hour photography coverage and a bridal album to include thirty 10 x 10 photographs, sixteen 5 x 5 photographs, and one 4 x 5 black and white photograph from the wedding of the Plaintiffs. The contractual agreement also allowed for a pre-bridal photographY session with the bride and groom before the wedding at no charge. 5. The written contractual agreement between the parties required a payment on the part of the plaintiffs to the Defendant in the amount of $1,595.00, and in addition required a deposit of $300.00 upon the execution of the contractual agreement. 6. Upon execution of the contractual agreement, the Plaintiffs did make payment to Jeffrey S. Rose in the amount of $300.00. 7. on December 3, 1993, Which was the day prior to the scheduled wedding of the Plaintiffs, Defendant did provide pre-bridal photography services as required by the contract between the parties, and at said pre-bridal photography session an additional oral contractual agreement was entered into between the parties whereby the Defendant agreed to provide a family portrait to the Plaintiffs for an additional charge of $613.11. 8. on December 4, 1993, the Defendant did provide photography services to the Plaintiffs at the wedding and reception of the Plaintiffs, and the Defendant did inform the PlaintiffS at that time that, due to extra time being taken by the Defendant at the rsception, there was a balance due and owing under the written contractual agreement of $1,500.00, which was agreed to by the Plaintiffs. 9. on December 4, 1993, dUl:~g the reception after the wedding of the Plaintiffs, the Plaintiff, Steve Kessler, did offer to make payment to the Defendant, Jeffrey S. Rose, the outstanding balance of $1,500.00, but was informed by the Defendant that the payment could be made by the Plaintiffs upon receipt of the bridal album as contracted for. 10. On or about March 3, 1994, payment was made by the Plaintiffs to the Defendant in the amount of $1,500.00, said payment being the outstanding balance on the written contractual agreement between the parties. 11. on or about July 14, 1994, payment was made on behalf of the Plaintiffs to the Defendant in the amount of $613.11, said payment representing payment in full on the oral contractual agreement for the family portrait as identified above. 12. The Defendant has wholly failed to keep and perform his part of the written and oral contractual agreements between the parties, in that thfl Defendant has failed and refused upon demand to provide to the Plaintiffs the wedding album and family portrait as contracted for between the parties. 13. The Plaintiffs have fully kept and performed their part of the written and oral contractual agreements between the parties, in that payment in full as required in the written and I )0 -, - , ~' ., . ". ~..... .... ~.l_.--.~ ,,,,,",,~.......J.n."'''; JJ ...oy -'*r ...-- G'thtl1i'.j-- A- ~~toPP'g 'y J,flr.g s. Jtps. 3710 c.r1III.l'lke, Camp HII~ I'A. 17011 By Appolntm.nl (717) 761~lOJ 1.lDrpOlII Reedved S . ~ 2nd Drpo.1I Received S 3rd Drpo.1I Rec.lved S IlaI. AII1;( li' 0. 0. , I SOC~.9lL 1"'l1t}{ CTION JitG~(E/E/:M'E/J.(rr - D.I.oIMI.lr 1>e~ 4- 'q~ W.ddlng On Mhzv.h 0.1 MlIzv.h Oth.r Nam.(.) II~ Addnlo 11suJ K s'/tW l.:.. ,I ',illrtD1 'VUCU' S.y" -t-lll.((I ~b~{(v tA /'/ /12- lit; 2. g~ Z~ I 4~ TK e. Not... N.w AddJfta New !'hon. Phon. (Ill Ad IFomJly) (Other) 1'1' Nam.<i (Work I'lac.) Phon. (Ill (IV) 1k'1n1'h010~ C=""oyA \'1 8ltl'" (I c 1lJt.-,1 ' R.~dooA / I 1. ~ ~?l ~~~~~~ ~ 'Imt 4:W (p'lJC; ~~k : Sdlodul. Ql I1IIDA)'J hIIIII I -"7fl " u..a' , '.rr~ricl,.."" IV/fl' lJt..(,: fJ" f"" ~. , ^~!q1~lti l.\fJ I, " . ", ., ~. (Jd.'~ "', '':'~~RTA~:O';A~~N~ I'I:EASE~ CA~mJLLY Mmn~~~~U~IILYI In ord.dor~. iii'81~, you Ihe cl...lc .nd compl'l. phologr'phlc cov.r.g" th.t w. proll'lol.,lt II ABSOLUTELY NECESSARY u..1 .v.ryon. b. r..dy It Ih.lr pre..rr.,;g.d 11m... 1'1.... nOllly your florid 10 hay. Ih. flow... Iv.lI.bl. for thl photolrophl whln n~~,~f,Y' r !,', '. "" COI'YRIGHTINFORMAnON All photographl Ihown Ind d.llv.red .re cofyrlghl.d by Nonnln D. Ro..l'holography Ind m.y nol bl copl.d or npraduud In any wlY wlthoul writt.n p.nnl..lon. - POliCY Jlf 1'.\ YMI'NT A $3DD dcpo'lIl, required 10 hold your dal. .nd tun.. A ...,ond d.po.lt .qu.llo on..h.lI of th. unp.ld b.lanc.l. dUI four w..ko prior 10,Ihe function. Thlt II 01 cou... .ppllld '10 the ord.r. Th. rem.lnlng bllance I. due Ilthl provllw Ihowlng. 0'1'01111 In non- rolund.bl........ . ".. . OTIfFlt CAMr1tAS W. w.lcom. gu..lllo I.k. plctur.. AT Tim IlECm'nON ONLY. No olh.rpldur.., pl...., durlnglh. 10nn.1 or group phololrlphy ....Ion.. 1'1.... notlly your Vld.ogroph.r. , ,. 'I" " fLWEtlm (J) Each .flal, pholographed will hi conlldertd on, ordu. no mallu how may Indtvhtull partl" ar. 10 f'ctlv. phololr'ph.. Thll' will 1M n. "par.l' bUllnll. On. puty wlll be billed rurlhe cnllle onh:r, .nd no pIUI.1 ordtrt will bl slven OUI untU loul balance I, paid. tZI All "qUilled photo&",phl 01 sulltubl.. will bl conlld".d In Iddlllon 10 Ih. "'''lid pholoanphl. ..I..llon Ind will bl blllld Illhl ntllllll per print ch"ll. ' (3)"Al1a-rdcn will be picked up wlU,ln 'hLrl)' dly.or nolillcltlon or wl1l be .ucu.:d. Un.nct ,h"" ull.81,e,unl ptr month or ,)Urtlu" Ih'nCl'on tk. unpaid ballnc., J ' (I) III. a,urd Ihll riahlllo ..dullv. Ult 01 n."lIv. nll"r1aland upro ucllonl Ihmlrom ar. ,...rv.d 10 Nonnlo D, ROIII'holo"lphy. Wh.lhor (or dllplay, pUbllca,IOnt, or olherwhc. ~ ~ 151 Studio IIlblllly 111I..Il.d 10 10Y d'POIIlI slv.n Ihould ....hlol..111I1uu, Ihdl, ..eld.nt or ..llhlP b.yond ou' ,..,on.bl. ,onlrol D''''" whl,h prev.nlllulllll...nt 01 our """01'01, 11111 lhall b. ou, only U"blllly. (6) All credit cl,d chargu Irt charged In addlltonl12 percent. (7) Pie.., nole, to avoid In embarnulng -'tuition, II It the ruponllbllily of th, bride and IlOom to .lIur' a dinner pllu fur Ih. phOIOIf8ph.,lntl 1I.lltant' at the recepllon. If not, 'h, photographrr .nd usl,tanh wlllluve Ind covens, will rr'Umt.t .I,t,r Iim,. Th. tenn 01 this .gr..m.nl dal.d ItJ /I.,. 9J ...Icupled by -..I , -I,. Studio IIrpr...nl.UvI Wesu au call us about one week beforehand 10 conHnn all arran emenls 19. Following the wedding the Defendant Rose nolified the Plaintiff Scheetz that she was permitted to come to his studio and preview all of the photographs which he took. The total W.1S 126 photographs. 20. Plaintiff Scheetz went through the photographs one by one and selected the photographs that she wanted the Defendant Rose to finish and place in an album. 21. Plaintiff Scheetz selected $700 worth of additional photographs over and above the Memento C package and over and above the overtime charges. At that point in time Plaintiff Scheetz was to pay the remaining balance from the $1,595 outstanding bill plus overlime which she refused to do. Defendant Rose advised the Plaintiff Scheetz that because of her failure to pay the balance due on the contract that until she paid the balance due he could not produce the album. 22. A few days later Plaintiff Scheetz paid the remaining balance on the $1,595 contract. 23. Defendant Rose finished the project, placing all of the photographs in an album, and called Plaintiff Scheetz to come in an pick up the photographs. Plaintiff Scheetz ignored many telephone calls from Defendant Rose. Finally, when she did speak to the Defendant Rose on the telephone, she denied ordering any additional photographs. 18. It is admitted that the Defendant expended an additional two hours of overtime at the wedding of the Plaintiffs. It is specifically denied that Defendant Rose has performed his part of the contractual agreement between the parties, and proof thereof is therefore demanded at trial. All other averments contained in paragraph 18 of the Defendant's New Matter are denied, the contract being a written document, which speaks for itself and is not sUbject to interpretation by the Defendant, and proof thereof is therefore demanded at trial. By way of further reply, it is averred that the Defendant never made any requests of the Plaintiffs for additional payment prior to the wedding, nor was additional prior payment before the wedding ever made an issue between the parties. 19. It is admitted that Plaintiff, Lisa (Sheetz) Kessler, Was notified by the Defendant to come to his office to preview the photographs. After reasonable investigation, the Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the averred total nUmber of photographs, and the aVerment is therefore denied, and proof thereof is thsrefore demanded at trial. 20. The aVerments contained in paragraph 20 of the Defendant's New Matter are denied, and proof thereof is therefore demanded at trial. By way of further reply, it is averred that Plaintiffs, steve and Lisa Kessler, the parents of Lisa (Sheetz) Kessler, Bill and Kathy Sheetz, and a sister of Lisa (Sheetz) Kessler, Karen Sheetz, went through the photographs and tentatively chose certain photographs not to be included. By way of further reply, it is averred that at no time during this, or any subsequent discussion with Defendant Rose, was any indication made by the Plaintiffs that Defendant Rose should finish and place any selected photographs in an album. 21. The averments contained in paragraph 21 of the Defendant's New Matter are denied, and proof thereof is ther~fore demanded at trial. By way of further reply, it is averred that after the Plaintiffs had tentatively made their initial exclusion of photographs, they were informed by the Defendant that there were too many photographs left remaining in relation to the package that thoy had purchased, and that the remaining photographs would cost approximately another $1,400.00 in order to finish and include in an album. The Defendant further offered to the Plaintiffs to complete an album with all the pictures which he had taken, for an additional payment of $700.00. By way of further reply, it is averred that when the PlaintiffS were unable to decide whether they wished to incur further expenses, especially after having recently undergone a wedding of over $20,000.00 in costs, they were informed by the Defendant that they could go home and think about it, and it was not something that had to be decided at that time. 22. Admitted. By way of further reply, it is averred that in addition to the Plaintiffs having paid the remaining balance on the $1,595.00 contract, they, in fact, paid a total of $1,800.00 to the Defendant, that being the $300.00 down payment and the $1,500.00 dubsequent payment. By way of further reply, it is averred that, in addition to the $1,800.00 paid, the Defendant has also recsived payment of $613.11 for a family portrait, which was orally contracted for between the parties, and which to date the Defendant has refused to turn over to the Plaintiffs. 23. It is admitted that the Plaintiffs have denied ordering any additional photographs. It is admitted that the Defendant Rose called Plaintiff, Lisa (Sheetz) Kessler's, parents to inform them that the family portrait was prepared, and to request that they inform the Plaintiffs to come in to the studio to look at an album. After reasonable investigation, the Plaintiffs are unable to determine the truth to the averment that Defendant Rose placed all the photographs in the album, and the averment is therefore denied, and proof thereof is therefore demanded at trial. It is denied that the Plaintiffs ignored telephone calls from Defendant Rose. By way of further reply, it is averred that when the Defendant informed the Plaintiffs that he had prepared an album, they expressed surprise since they had not agreed to expend any further monies as suggested by Mr. Rose at their meeting. REPLY TO COUNTERCLAIM 24. Paragraphs 1 through 15 of the plaintiffs' complaint, and paragraphs 16 through 23 of the Plaintiffs' Reply to New Matter, are incorporated herein by reference as though more fully set forth herein. 25. The averments contained in paragraph 25 of the Defendant's counterclaim are denied, and proof thereof is therefore demanded at trial. By way of further reply, any averment that there are any monies due and owing from the Plaintiffs to the Defendant are denied, and proof thereof is therefore demanded at trial. WHEREFORE, the PlaintiffS move this Honorable Court to dismiss the Defendant's Counterclaim and to enter judgment in their favor, together with costs of suit. In addition, the Plaintiffs pray that this Honorable court decree and direct as follows: A. That the Defendant, Jeffrey S. Rose, be ordered and directed to pay to the Plaintiffs the sum of $2,413.11, plus $79.50, plus costs and interest, and such other and further