hollinger answer and defenses
TRANSCRIPT
IN THE COURT OF COMMON PLEASE OF YORK COUNTY, PENNSYLVANIA CIVIL ACTION-LAW
Service Dogs by Warren Retrievers, Inc. Plaintiff vs. Case No. 2013-SU004434-48
Terry and Michelle Hollinger ANSWER AND NEW MATTER Defendant
ANSWER AND NEW MATTER
And now comes the Defendants, Terry and Michelle Hollinger, and files the following Answer
and New Matter to complaint in civil action, averring as follows:
ANSWER
1. Paragraphs 1 and 2 of Plaintiff’s Complaint are admitted.
2. After reasonable investigation, we are without knowledge or information sufficient to
form a belief as to the truth of the averments of contained in Paragraphs 3 and 4.
3. Paragraph 5 is admitted
4. Paragraph 6 is specifically denied as the Defendants have no knowledge of any
enrollment into any fundraising “program”. Strict proof of this allegation is demanded at
time of trial.
5. Paragraph 7 is partially admitted and partially denied in that the defendants did give the
Plaintiff $1000 but the Defendants deny that it was for enrollment into a fundraising
program.
6. Paragraph 8 and 9 is admitted
7. Paragraph 10 is partially admitted and partially denied in that the parties did sign into an
agreement. Defendants deny that the contract is a valid and binding contract.
8. Paragraph 11 is admitted
9. Defendants partially admit to Paragraph 12 in that specific terms as stated are outlined in
Section II of the contract. Defendants deny that the parties willingly agreed to the terms.
10. Paragraph 13 is admitted
11. Notwithstanding the denial of the validity of the contract, Paragraphs 14 thru 20 are
admitted only in that these are the terms as outlined in the contract.
12. After reasonable investigation, we are without knowledge or information sufficient to
form a belief as to the truth of the averments of contained in Paragraphs 21 thru 25 as the
Defendants have never received an account statement.
13. After reasonable investigation, we are without knowledge or information sufficient to
form a belief as to the truth of the averments of contained in Paragraph 26.
14. Paragraphs 27 and 28 are admitted
15. After reasonable investigation, we are without knowledge or information sufficient to
form a belief as to the truth of the averments of contained in Paragraph 29.
16. Notwithstanding the denial of the validity of the contract, Paragraph 30 is admitted only
in that these are the terms as outlined in the contract.
17. Paragraphs 31 thru 34 are denied.
18. Paragraph 35 requires no answer
19. Paragraph 36 is specifically denied as the contract is not for mutual benefit.
20. Paragraph 37 is denied. Strict proof of this allegation is demanded at time of trial.
21. Paragraph 38 is specifically denied in that demand for payment was never requested.
Strict proof of this allegation is demanded at time of trial.
22. Paragraphs 39 thru 41 are restated and have already been answered.
23. Paragraphs 42 and 43 are denied
24. Paragraph 44 requires no answer
25. Paragraphs 45 thru 49 are denied
26. Paragraph 50 requires no answer
27. Paragraphs 51 thru 54 are denied
28. Paragraph 55 requires no answer
29. Paragraphs 56 thru 58 are denied
30. Paragraph 59 requires no answer
31. Paragraphs 61 and 62 are admitted
32. Paragraphs 63 thru 68 are denied
WHEREFORE, Defendants pray this Honorable Court dismiss the lawsuit against them
and/or deny any requests for relief demanded by Plaintiff. Should this case go to trial, the
Defendants request a jury trial.
NEW MATTER
Invalid contract-Duress
33. Paragraphs 1 thru 32 are hereby incorporated by reference.
34. On or around August 17, 2012, the Plaintiff delivered a black Labrador retriever to the Defendants residence via a trainer named Dana McGuire.
35. The Defendants and the trainer immediately left the residence with the dog to obtain medical treatment for the dog. Upon returning to the home in the late afternoon, Mr. McGuire informed the Defendants about a contract that would need to be signed immediately or the dog would be taken and the monies would be forfeited.
36. The Defendants were not given time to review the contract or have it reviewed by an attorney and were under extreme duress to sign it or lose everything, including the animal that was expected to be a life-saving medical tool for their child.
Impossibility of performance
37. At the time that monies were allegedly due to the Plaintiff, the Plaintiff was not legally registered to fundraise in the state of Pennsylvania. The defendants were therefore unable to fundraise under the Plaintiff’s EIN or company name and making it impossible to raise any further funds towards the dog.
Equitable Estoppel 38. The Plaintiff intentionally concealed the fact that a contract would have to be signed until
after receiving over $10,000 from the Defendants. The Plaintiff accepted funds for nine months from the Defendants and applied it to a payment schedule for a contract that the Defendants had no knowledge of until after the dog had been delivered. WHEREFORE, the Defendants pray the Honorable Court find the contract to be invalid
and therefore dismiss the claims against the Defendants as the claims arise out of said contract.
Fraud
39. On or about September of 2011, the Defendants contacted the Plaintiff to inquire about a
service dog for their child. The Plaintiff gave false information as to the how the dog would function upon arrival. The Plaintiff told the Defendants that the dog would come “fully scent-trained” and have basic obedience and that their only responsibility would be to work with a trainer every 90 days to fully train the obedience in the dog. Upon arrival, the dog had no training in scent or basic obedience.
40. The Plaintiff stated the animal would be selected based on the needs of the Defendants’ family and stated that the dog would go through testing to determine suitability for service dog work. The animal never had any formal testing or training.
41. The Plaintiff stated the dog would be scent imprinted and the dog was not imprinted.
42. The Plaintiff failed to disclose his former convictions of fraud.
43. The Plaintiff intentionally misled the Defendants in order to obtain a $1000 deposit and subsequent monies from the Defendants.
Illegal importation and delivery
44. Plaintiff was in violation of Pennsylvania code § 3.3 and 3.91 at the time the animal was delivered to the Defendants. The Plaintiff failed to disclose the animal’s exposure to contagious diseases and failed to provide a health certificate to the Defendants.
45. The Plaintiff failed to properly immunize the dog upon importation into the state of
Virginia at which time the Defendants were forced to pay medical fees in order to bring the animal current on immunizations.
Justification
46. The Plaintiff failed to provide a working service dog as agreed and paid for by the
Defendants.
47. The Plaintiff failed to provide adequate training for the dog, despite receiving payment
for such services.
48. The Defendants have trained the dog without assistance or resources from the Plaintiff.
49. The Defendants were denied access to training resources by Plaintiff prior to any alleged
default in payment.
50. The Plaintiff failed to communicate with the Defendants regarding payment and training.
51. The Plaintiff failed to provide the Defendants with account statements or invoices.
WHEREFORE, the Defendants seek dismissal of the lawsuit filed against them by the Plaintiffs.
/s/Michelle Hollinger
Michelle Hollinger Defendant
/s/Terry Hollinger
Terry Hollinger Defendant
VERIFICATION
We hereby verify that the statements made in the foregoing document are true and correct to the best of my knowledge. We understand that the statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities.
/s/Michelle Hollinger Michelle Hollinger
Defendant
/s/Terry Hollinger Terry Hollinger
I hereby certify that on January 7, 2014, I emailed a true and accurate copy of this Answer and New Matter via email to Devon M. Myers at [email protected].
/s/Michelle Hollinger Michelle Hollinger