HomeMy WebLinkAbout97-1305 civilCHARLES W. CARELOCK and ·
ERIC C. CARELOCK, '
Plaintiffs, '
V~
FAMILY FORD, :
MARK DANOWITZ, MODEL :
MOTORS, PETE MILLER, :
MARK SITES, RICHARD :
A. LEBO, STEVE FILES, :
and BRENNER NISSAN, :
Defendants :
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No. 97-1305 CIVIL TERM
CIVIL ACTION - LAW
AND NOW, this
ORDER OF COURT
day of JULY, 1998, after argument, Defendant's
Preliminary Objection in the nature of a Demurrer is SUSTAINED and this action, as
against Family Ford and Mark Danowitz, is DISMISSED. The Motion to Strike for
improper service as to the remaining Defendants is GRANTED.
By the Court.
E. Guido, J.
Charles W. Carelock, Pro Se
4075 Rawleigh Street
Harrisburg, PA 17109-4136
Eric C. Carelock, Pro Se
1535 South Thirteenth Street
Harrisburg, PA 17104
John F. Lyons, Esquire
For the Defendants
Family Ford and Mark Danowitz
CHARLF~ W. CARELOCK and
ERIC C. CARELOCK,
Plaintiffs,
Ve
FAMILY FORD,
MARK DANOWITZ, MODEL
MOTORS, PETER MILLER,
MARK SITES, RICHARD
A. LEBO, STEVE FILES,
and BRENNER NISSAN,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No. 97-1305 CIVIL TERM
CIVIL AcrION - LAW
IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS
BEFORE BAYLEY, J., GUIDO, J.
OPINION AND ORDER OF COURT
The Carelocks initiated this suit for damages resulting from an automobile
purchase they purport to have rescinded. The claim stems from a contract entered into
March 13, 1996 by both Charles Carelock and his son Eric Carelock for the purchase of
a Nissan Pathfinder from Defendant Model Motors. The Carelocks allege that they
rescinded the contract because the monthly payment for the vehicle was higher than what
they were led to believe it would be. In addition there was a significant amount of
damage to the vehicle's paint at the time of delivery. Defendants Family Ford and Mark
Danowitz have filed preliminary objections in the nature of a demurrer. The remaining
Defendants filed a motion to strike based upon improper service of the complaint.
PROCEDURAL HISTORY
On March 13, 1997, the Plaintiffs filed a claim of "fraud in vehicle sale" against
Family Ford (a car dealership) and Mark Danowitz (alleged owner of Family Ford and
NO. 97-1305 CIVIL TERM
alleged former owner of Model Motors). Original process was properly served upon the
Defendants pursuant to Pa. Rule of Civil Procedure 401. Subsequently the Plaintiff~
filed what appear to be three amended complaints which joined the additional
Defendants.~ All Defendants filed Preliminary Objections on April 28, 1997. Argument
was held before this Court on May 27, 1998. This matter is now ready for disposition.
DISCUSSION
FAMILY FORD'S AND DANOWITZ'S PRELIMINARY OBJECTION IN THE
NATURE OF A DEMURRER
The test in reviewing preliminary objections in the nature of a demurrer is
whether it is dear and free from doubt that the pleader will be unable to prove facts
legally sufficient to establish his fight to relief. Firing v. Kephart, 466 Pa. 560, 563, 353
A.2d 833, 835 (1976). In determining whether to sustain preliminary objections, this
Court must consider as tree all of the well-pleaded material facts set forth in the
Plaintiffs' complaint. Feingold v. Bell of Pa., 477 Pa. 1, 4, 383 A.2d 791, 792 (1977).
Nothing in the complaint even remotely links Family Ford or Danowitz to the
transaction which was between the Plaintiffs and Defendant Model Motors. Therefore,
their demurrer must be sustained.
B. MOTION TO STRIKE FOR IMPROPER FORM OF SERVICE
Original process must be served personally upon an additional Defendant as if he
XThe amended complaints were filed in violation of Pa. Rule of Civil Procedure
1033 in that the Carelocks never requested leave to amend. See Spain v. Vicente, 315
Pa. Super. 135, 142, 461 A.2d 833, 837 (1983).
NO. 97-1305 CIVIL TERM
were an original Defendant. Pa.R.Civ. P. 425. The record indicates that the Plaintiffs
attempted to serve the additional Defendants by marling a copy of the amended
pleadings to John Lyons, Esq., attorney for the original Defendants. To effectively join
the additional parties the Plaintiffs must have the sheriff serve original process on those
additional parties. Pa.R.Civ. P. 400, 402. As Defendants Brenner Nissan, Model Motors,
Pete Miller, Mark Sites, Richard A. Lebo, and Steve Files were never properly joined to
·
this litigation, their motion to strike for improper service must be granted.
AND NOW, this
ORDER OF COURT
day of JULY, 1998, after argument, Defendant's
Preliminary Objection in the nature of a Demurrer is SUSTAINED and this action, as
against Family Ford and Mark Danowitz, is DISMISSED. The Motion to Strike for
improper service as to the remaining Defendants is GRANTED.
By the Court,
Charles W. Carelock, Pro Se
4075 Rawleigh Street
Harrisburg, PA 17109-4136
/s/Edward E. Guido
Edward E. Guido, J.
Eric C. Carelock, Pro Se
1535 South Thirteenth Street
Harrisburg, PA 17104
John F. Lyons, Esquire
For the Defendants
Family Ford and Mark Danowitz