Preview
efile_07-26-2022_D A4_21-74 219-0_5liencopy _KLO
21-74219-0/21-74220-0/DA4/KLO
PORTNOFF LAW ASSOCIATES, LTD. ATTORNEY FOR PLAINTIFF
BY: JASON J. LEININGER, ESQUIRE ATTORNEY ID 87525
P.O. BOX 391
NORRISTOWN, PA 19404
(866) 211-9466
Upper Darby Township : IN THE COURT OF COMMON PLEAS
100 Garrett Road
Upper Darby, PA 19082 : DELAWARE COUNTY, PA
Plaintiff
vs. : NO.
Marvin Postell
Lynda H. Postell : IN REM
Defendants
MUNICIPAL CLAIM
Upper Darby Township hereby files a lien for non-payment of sewer fees for the period
2020 and trash fees for the period 2020, duly assessed against the following owners and
described property in accordance with an Ordinance of Upper Darby Township, pursuant to the
fee schedule which is attached hereto.
I certify that this filing complies with the provisions of the Case Records Public Access
Policy of the Unified Judicial System of Pennsylvania that require filing confidential information
and documents differently than non-confidential information and documents.
OWNER NAMES AND
LAST KNOWN MAILING ADDRESS PROPERTY AMOUNT
Marvin Postell 125 Hilldale Avenue $1,035.09
Lynda H. Postell Upper Darby, Pennsylvania 19082
125 Hilldale Road Tax Parcel No. 16-02-01181-02
Lansdowne, PA 19050
Respectfully submitted,
PORTNOFF LAW ASSOCIATES, LTD.
Date: July 26, 2022 BY: /s/ Jason J. Leininger
JASON J. LEININGER, ESQUIRE
Attorney for Plaintiff
Fee Schedule
ACTION COLLECTION FEES
Prepare and provide notice pursuant to 53 P.S. §7106 $40.00 plus postage charges
Handling fee for returned check Bank charge (if any)
Bookkeeping fee for payment plan of three (3) months or less $25.00
Bookkeeping fee for payment plan of more than three months $50.00
Guaranteed payoff fee $25.00
ACTION ATTORNEY FEES
Initial review and sending first demand letter $160.00
File lien and prepare satisfaction $250.00
Prepare writ of scire facias $250.00
Obtain reissued writ of scire facias $30.00
Prepare and mail letter notice to Pa.R.C.P. § 237.1 $30.00
Prepare motion for alternate service $250.00
Obtain vehicle identification number (VIN) for mobile home $35.00
Prepare discovery in preparation for trial $100.00
Prepare pretrial memorandum $150.00
Prepare motion for judgment for want of sufficient affidavit of $150.00
defense pursuant to 53 P.S. § 7271
Prepare default judgment $175.00
Prepare writ of execution $800.00
Attendance at sale; review schedule of distribution and resolve $400.00
distribution issues
Continue sheriff sale $50.00
Petition to assess damages $50.00
Petition for free and clear sale $400.00
Services not covered above At an hourly rate between
$60.00 - $275.00 per hour
There may also be added to a delinquent account the costs, expenses, and fees incurred in collection such
as, but not limited to, postage, title searches, filing fees, and sheriff fees. Additionally, should a lien be
filed, interest in accordance with 53 P.S. § 7143 of the Municipal Claims and Tax Liens Act will begin to
accrue on the date of the filing of the lien and will continue to accrue on a daily basis, increasing the
amount of the balance due.
The collection and attorney fees listed above will be assessed only if the corresponding action is
performed. If legal proceedings had begun prior to the mailing of this letter, one or more of the actions
listed above may have been performed and the corresponding fee(s) may have been assessed prior to the
date of this letter.
Upper Darby Township
21-74219-0/21-74220-0/DA4/KLO
PORTNOFF LAW ASSOCIATES, LTD. ATTORNEY FOR PLAINTIFF
BY: JASON J. LEININGER, ESQUIRE ATTORNEY ID 87525
P.O. BOX 391
NORRISTOWN, PA 19404
(866) 211-9466
Upper Darby Township : IN THE COURT OF COMMON PLEAS
Plaintiff
vs. : DELAWARE COUNTY, PA
Marvin Postell
Lynda H. Postell : NO.
Defendants
: IN REM
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the Municipal Claim and
fee schedule in this matter was served upon:
Marvin Postell
Lynda H. Postell
125 Hilldale Road
Lansdowne, PA 19050
by first class United States mail, postage pre-paid on July 27, 2022
/s/ Kiyah L. Owens
KIYAH L. OWENS
Legal Assistant
Dated: July 27, 2022
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The Court grants Plaintiff’s motion for summary judgment. Judgment is entered in favor of Plaintiff
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shall be submitted through a Memorandum of Costs, not by this motion.
***
This hearing was continued from June 21, 2024, to allow Plaintiff to file an opposition. As of July
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I. FACTUAL/PROCEDURAL CONTEXT
This is a collections case. Plaintiff American Express National Bank (“Plaintiff” or “Amex”)
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based on the monthly billing statements showing all charges and payments. Plaintiff argues that
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II. EVIDENCE SUPPORTING MOTION
The Court has reviewed the Declaration of Melanie Dixon, Assistant Custodian of Records
for Plaintiff (Part 1 and 2), authenticates Cardmember Agreements and billing statements.
III. LEGAL ANALYSIS
Any party may move for summary judgment in any action or proceeding if it is contended
that the action has no merit or that there is no defense to the action or proceeding. (Cal Code Civ
Proc § 437c(a).) “A defendant's motion for summary judgment should be granted if no triable
issue exists as to any material fact and the defendant is entitled to a judgment as a matter of law.”
(Kahn v. Eas bt Side Union High School Dist. (2003) 31 Cal. 4th 990, 1002-1003.) “The moving
party bears the burden of production to make a prima facie showing of the nonexistence of any
triable issue of material fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850.) Once
this burden has been met, the burden shifts to the opposing party to make a prima facie showing
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adjudication. Therefore, any disputed fact as to any cause of action is grounds to deny summary
judgment.
Common Counts:
The essential elements of a common count are: (1) a statement of indebtedness in a
certain sum (2) consideration, and (3) nonpayment. (Farmers Ins. Exchange v. Zerin (1997) 53
Cal.App.4th 445, 460.) An open book account is “a detailed statement which constitutes the
principal record of one or more transactions between a debtor and a creditor arising out of a
contract or some fiduciary relation, and shows the debits and credits in connection therewith, and
against whom and in favor of whom entries are made, is entered in the regular course of business
as conducted by such creditor or fiduciary, and is kept in a reasonably permanent form and
manner….” (Code Civ. Proc., § 337a.) A book account can be established by a course of dealing
between the parties. (Warda v. Schmidt (1956) 146 Cal.App.2d 234, 237.) “A book account may
furnish the basis for an action on a common count . . . when it contains a statement of the debits
and credits of the transactions involved completely enough to supply evidence from which it can
be reasonably determined what amount is due to the claimant.” (Interstate Group Administrators,
Inc. v. Cravens, Dargan & Co. (1985) 174 Cal.App.3d 700, 708.)
“An account stated is an agreement, based on the prior transactions between the parties,
that the items of the account are true and that the balance struck is due and owing from one party
to another” Gleason v. Klamer (1980) 103 Cal.App.3d 782, 786.) The essential elements of an
account stated are: (1) previous transactions between the parties establishing the relationship of
debtor and creditor; (2) an agreement between the parties, express or implied, on the amount due
from the debtor to the creditor; (3) a promise by the debtor, express or implied, to pay the amount
due.” (Zinn v. Fred R. Bright Co. (1969) 271 Cal.App.2d 597, 600.) “The key element in every
context is agreement on the final balance due.” (Maggio, Inc. v. Neal (1987) 196 Cal.App.3d 745,
753.)
It is undisputed that in March 2020, Defendant opened a credit card account, which was
governed by a Cardmember Agreement, which was sent to Defendant. (UMF No. 1; Dixon Dec.
1, Ex. A.) Defendant used Account 1 to obtain credit and pay for goods and services. (UMF No.
5.) Under the terms of the Agreement, Defendant was required to make monthly payments. (UMF
No. 6.) Amex maintained billing records reflecting the charges and payments. (UMF No. 8; Dixon
Dec. 1., Ex. C.) Defendant made partial payments and did not dispute any of the charges. (UMF
No. 10.) According to the final billing statement, the last payment posted on Account 1 was April
10, 2023. (Dixon Dec. 1, ¶ 13; Ex. B.) The balance due on Account 1 is $2,201.79. (UMF No. 11.)
Account 2 was opened in September 2018, which was also governed by a Cardmember
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and pay for goods and services. (UMF No. 16.) Under the terms of the Agreement, Defendant
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billing statements. (UMF No. 19; Dixon Dec. 2; Ex. C.) The records reflect that the last payment
posted on April 8, 2023. (Dixon Dec. 2; ¶ 13; Ex. B.) The balance on Account 2 is $36,680.30.
(UMF No. 22.)
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judicial notice. CCP § 438(d). The Court may take judicial notice of responses to discovery
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Inc. (2010) 181 Cal.App.4th 471, 485.
The essential elements of an account stated are: (1) previous transactions between the parties
establishing the relationship of debtor and creditor; (2) an agreement between the parties, express
or implied, on the amount due from the debtor to the creditor; (3) a promise by the debtor, express
or implied, to pay the amount due. Leighton v. Forster (2017) 8 Cal. App. 5th 467, 491. “A ‘book
account’ is ‘a detailed statement which constitutes the principal record of one or more transactions
between a debtor and a creditor arising out of a contract or some fiduciary relation, and shows the
debits and credits in connection therewith ....’ ” [Citations.] The creditor must keep these records
in the regular course of its business and “in a reasonably permanent form,” such as a book or card
file. (Code Civ. Proc., § 337a.) “A book account is ‘open’ where a balance remains due on the
account.” [Citation.] Pro. Collection Consultants v. Lujan (2018) 23 Cal. App. 5th 685, 690–91.
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debt, and 9) Defendant received through the US mail a pre-legal notification from Plaintiff
regarding the account.
Defendant’s admissions establish the required elements of each cause of action. Plaintiff’s Motion
for Judgment on the pleadings is GRANTED. The admissions establish that a principal sum of
$2,523.69 is due and owing. That sum is awarded. Plaintiffs have also submitted a memorandum
of costs for $369.50, comprising the filing and service of this motion. The amount appears
reasonable and is awarded. A proposed order and judgment have been lodged with the Court and
will be executed.
Preview
efile_07-26-2022_D A4_21-74 219-0_5liencopy _KLO 21-74219-0/21-74220-0/DA4/KLO PORTNOFF LAW ASSOCIATES, LTD. ATTORNEY FOR PLAINTIFF BY: JASON J. LEININGER, ESQUIRE ATTORNEY ID 87525 P.O. BOX 391 NORRISTOWN, PA 19404 (866) 211-9466 Upper Darby Township : IN THE COURT OF COMMON PLEAS 100 Garrett Road Upper Darby, PA 19082 : DELAWARE COUNTY, PA Plaintiff vs. : NO. Marvin Postell Lynda H. Postell : IN REM Defendants MUNICIPAL CLAIM Upper Darby Township hereby files a lien for non-payment of sewer fees for the period 2020 and trash fees for the period 2020, duly assessed against the following owners and described property in accordance with an Ordinance of Upper Darby Township, pursuant to the fee schedule which is attached hereto. I certify that this filing complies with the provisions of the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania that require filing confidential information and documents differently than non-confidential information and documents. OWNER NAMES AND LAST KNOWN MAILING ADDRESS PROPERTY AMOUNT Marvin Postell 125 Hilldale Avenue $1,035.09 Lynda H. Postell Upper Darby, Pennsylvania 19082 125 Hilldale Road Tax Parcel No. 16-02-01181-02 Lansdowne, PA 19050 Respectfully submitted, PORTNOFF LAW ASSOCIATES, LTD. Date: July 26, 2022 BY: /s/ Jason J. Leininger JASON J. LEININGER, ESQUIRE Attorney for Plaintiff Fee Schedule ACTION COLLECTION FEES Prepare and provide notice pursuant to 53 P.S. §7106 $40.00 plus postage charges Handling fee for returned check Bank charge (if any) Bookkeeping fee for payment plan of three (3) months or less $25.00 Bookkeeping fee for payment plan of more than three months $50.00 Guaranteed payoff fee $25.00 ACTION ATTORNEY FEES Initial review and sending first demand letter $160.00 File lien and prepare satisfaction $250.00 Prepare writ of scire facias $250.00 Obtain reissued writ of scire facias $30.00 Prepare and mail letter notice to Pa.R.C.P. § 237.1 $30.00 Prepare motion for alternate service $250.00 Obtain vehicle identification number (VIN) for mobile home $35.00 Prepare discovery in preparation for trial $100.00 Prepare pretrial memorandum $150.00 Prepare motion for judgment for want of sufficient affidavit of $150.00 defense pursuant to 53 P.S. § 7271 Prepare default judgment $175.00 Prepare writ of execution $800.00 Attendance at sale; review schedule of distribution and resolve $400.00 distribution issues Continue sheriff sale $50.00 Petition to assess damages $50.00 Petition for free and clear sale $400.00 Services not covered above At an hourly rate between $60.00 - $275.00 per hour There may also be added to a delinquent account the costs, expenses, and fees incurred in collection such as, but not limited to, postage, title searches, filing fees, and sheriff fees. Additionally, should a lien be filed, interest in accordance with 53 P.S. § 7143 of the Municipal Claims and Tax Liens Act will begin to accrue on the date of the filing of the lien and will continue to accrue on a daily basis, increasing the amount of the balance due. The collection and attorney fees listed above will be assessed only if the corresponding action is performed. If legal proceedings had begun prior to the mailing of this letter, one or more of the actions listed above may have been performed and the corresponding fee(s) may have been assessed prior to the date of this letter. Upper Darby Township 21-74219-0/21-74220-0/DA4/KLO PORTNOFF LAW ASSOCIATES, LTD. ATTORNEY FOR PLAINTIFF BY: JASON J. LEININGER, ESQUIRE ATTORNEY ID 87525 P.O. BOX 391 NORRISTOWN, PA 19404 (866) 211-9466 Upper Darby Township : IN THE COURT OF COMMON PLEAS Plaintiff vs. : DELAWARE COUNTY, PA Marvin Postell Lynda H. Postell : NO. Defendants : IN REM CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the Municipal Claim and fee schedule in this matter was served upon: Marvin Postell Lynda H. Postell 125 Hilldale Road Lansdowne, PA 19050 by first class United States mail, postage pre-paid on July 27, 2022 /s/ Kiyah L. Owens KIYAH L. OWENS Legal Assistant Dated: July 27, 2022