HomeMy WebLinkAbout00-02099
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Ronald E. Beinhaur and
Yvonne M. Beinhaur
Plaintiffs
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYL VANIA
:NO. 00 -;W'ry' Ck...\..(y~
: CIVIL ACTION - LAW
v.
Linwood B. Phillips III and
Marie B. Phillips
Defendants
TO: Linwood B. Phillips, III, and Marie B. Phillips, Defendants
You are hereby notified that on /J/)/ld" l lo
confession was entered against you in the sum of $ .:i:P lDoJ .R ~
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case.
, 2000, judgment by
in the above-captioned
DATE: --fJpd.l L ~ I ~ ('I
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rothonotary
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 FODTH 1lELOWTO FIND OUT WHERE YOU CAN GET LEGAL HELP.
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iU~~:~~*~DA~~~~~Y BAR ASSOCIATION
CARLISLE PA 17013
(717) 249 3166 or 1 800 990 9108
CERTIFICATE OF RESIDENCE
I hereby certify that the following is the last address ofthe defendant(s) stated herein:
1530 Centerville Road
Newville, PA 17241
I hereby certify that the following is the last address of the plaintiff(s) stated herein:
401 Rutherford Road
Harrisburg, P A 17109
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Attorn for Plaintiffs
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Ronald E. Beinhaur and
Yvonne M. Beinhaur
Plaintiffs
: IN THE COURT OF COMMON PLEAS
: DAUPHIN COUNTY, PENNSYLVANIA
; NO. HJ _ .;Joc}q ~ ~
v.
Linwood B. Phillips, III, and
Marie B. Phillips
Defendants
: CIVIL ACTION - LAW
CONFESSION OF JUDGMENT
Pursuant to the authority contained in the warrant of attorney, the original or a copy of
which is attached to the complaint filed in this action, I appear for the Defendants and confess
judgment in favor of the Plaintiffs and against Defendants as follows:
INTEREST AT 9% PER ANNUM
FROM 12/01/97-03/31/00
$28,115.70
$ 5,487.12
NOTE BALANCE
TOTAL:
$ 5.000..00
$38,602.82
ATTORNEYS FEES
AFFIDAVIT
This judgment is not being entered by confession against a natural person in connection
with a consumer credit transaction.
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Ronald E. Beinhaur and
Yvonne M. Beinhaur
Plaintiffs
: IN THE COURT OF COMMON PLEAS
: DAUPHIN COUNTY, PENNSYL VANIA
: NO.
v.
Linwood B. Phillips, III, and
Marie B. Phillips
Defendants
: CIVIL ACTION - LAW
COMPLAINT FOR CONFESSION OF JUDGMENT
AND NOW, comes the Plaintiffs, Ronald E. Beinhaur and Yvonne M. Beinhaur, by and
through their attorneys, BEINHAUR & CURCILLO, and aver as follows:
I. Plaintiffs, Ronald E. Beinhaur and Yvonne M. Beinhaur are adult individuals, residing
at 401 Rutherford Road, Harrisburg, Dauphin COlU1ty, Pennsylvania, 17109.
2. To the best of Plaintiffs' knowledge, information and belief, Defendants, Linwood B.
Phillips, III, and Marie B. Phillips, are adult individuals residing at 1530 Centerville Road, Newville,
Cumberland COlU1ty, Pennsylvania, 17241.
3. On September 25, 1992, Defendant signed an installment Note, which provided that
he/she/they would pay Plaintiffs $45,000.00, together with interest, in monthly installments of
$570.04 each, beginning November 1, 1992, and on the first day of each month thereafter through
October 1, 2002, on which date the entire lU1paid balance of principal, interest and all other sums
payable under the Note would be due and payable in full. See true and correct reproduction of the
original installment Note, verified by Affidavit, attached hereto and marked as Exhibit "A."
4. Defendants have defaulted on the installment Note by failing to make the payments as
required by the Note and Plaintiffs have made demands for payment. No payment has been made
lU1der the Note since November 21, 1997.
5. There have been no assignments of the installment Note.
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6. A judgment has not been entered on the installment Note in any jurisdiction to date.
7. Defendants have empowered any Prothonotary, Clerk, or Attorney to appear for
himlher/them and, with or without declaration, to confess judgment against himlher/them and in
favor of Plaintiffs for the entire unpaid principal amount due plus interest thereon with the costs of
suit and reasonable attorneys' fees not less than $ 5,000.00, all as set forth in the installment Note.
8. Defendant(s) owes Plaintiff(s) $28,115.70 plus interest at the rate of nine (9%) percent
per annum as of December I, 1997.
WHEREFORE, Plaintiffs Ronald E. Beinhaur and Yvonne M. Beinhaur requests this
Honorable Court to enter judgment in their favor in the amount of $38,602.32, as set forth herein,
with interest after judgment at the legal rate of interest, being six (6%) percent per annum, and the
costs of this suit.
BEINHAUR & CURCILLO
Attorneys for Plaintiff(s)
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000 R. Beinhaur, Esquire
Supreme Court ID No.: 55631
4650 Fritchey Street
Harrisburg, P A 17109
(717) 651-9100
DATE: L-l!.fA-,lla, JfMO
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VERIFICATION
We, Ronald E. Beinhaur and Yvonne M. Beinhaur, have read the foregoing
Document and hereby affirm and verifY that it is true and correct to the best of our personal
knowledge, information and belief. We verifY that all of the statements made in the foregoing
are true and correct and that false statements made therein may subj ect me to the penalties of 18
Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities.
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Ronald E. Beinhaur
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Yvo eM" Belnhaur
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CERTIFICATE OF SERVICE
I, John R. Beinhaur, Esquire, hereby certifY that I have, this(Qk.. day of April,
2000, served a copy of this Document by first class United States mail, postage prepaid, to the
following:
Linwood B. Phillips, III
Marie B. Phillips
1530 Centerville Road
Newville, Pennsylvania 17241.
BEINHAUR & CURCILLO
BY:~
Jo R. Beinhaur, Esquire
ID# 55631
4650 Fritchey Street
Harrisburg, PA 17109
(717) 651-9100
Attorney for Plaintiffs
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AFFIDAVIT
The undersigned hereby verify by this Affidavit that the copy of the Note attached
hereto is a true and correct copy of the original document. 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. S 4904 relating to unsworn falsification to authorities.
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Ronald E. Beinhaur
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EXHIBIT "A"
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NOTE
Date: September 25, 1992
Harrisburg, Pennsylvania
FOR VALUE RECEIVED, LINWOOD B. PHILLIPS, III and MARIE B.
PHILLIPS of 1530 Centervi11e Road, Newville, Pennsylvania 17241
(hereinafter collectively "Maker"), promise to pay to the order of
Ronald E. Beinhaur and Yvonne M. Beinhaur of 401 Rutherford Road,
Ha:t:'risburg, Pennsylvania 17101 ("Payee"), the principal sum of
FO:t:'ty-five Thousand ($45,000.00) Dollars, lawful money of the
United States of America, together with interest from the date of
this Note, at the rate and on the terms set forth below, as
follows:
1. (a) Maker shall pay monthly installments of interest
and principal in the amount of Five Hundred Seventy and 04/100
($570.04) Dollars, without set-off or deduction, on the first day
of each calendar month beginning November 1, 1992, through October
1, 2002, on which date the entire unpaid balance of principal of
this Note and all interest accrued thereon and all other sums
payable hereunder shall be due and payable in full.
(b) Prior to maturity, the per annum interest rate
on the whole of the principal sum remaining from time to time
unpaid shall be definite and certain at the rate of nine (9%)
percent based upon a ten (10) 'year amortization schedule.
(c) Interest shall be calculated on a 360-day year
for the actual number of days elapsed in each calendar year by
multiplying the actual number of days the debt is outstanding in
each calendar year, by the rate of interest computed as aforesaid,
and dividing the product thereof by 360.
2. The principal and interest shall be payable at the
address of the Payee as set forth above, or at such other place as
Payee, from time to time, may designate in writing.
3 ~ Payment of this Note is secured by a Security
Agreement from Maker to Payee dated the same date as this Note
(referred to as the "Security Agreement").
4. Payment of this Note is secured by the following, in
addition to the Security Agreement:
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(a) A first security interest in all furniture,
fixtures, machinery, appliances and equipment used or useful in the
operation of Maker's business; and
(b) A guaranty of Maker's obligations by Linwood B.
Phillips, III and Marie B. Phillips.
5. All the agreements, conditions, covenants, provisions
and stipulations contained in the Security Agreement and such other
security documents (hereinafter collectively referred to as the
.. Securi ty Instruments"), which are to be kept and performed by
Maker, are hereby made a part of this Note to the same extent and
with the same force and effect as if they were fully set forth
herein, and Maker covenants and agrees to keep and perform them or
cause them to be kept and performed, strictly in accordance with
their terms.
6. If any payment of any amount due hereunder or any
other payment is not paid within five (5) days when due under the
terms of this Note, or of the Security Instruments, then there
shall also be immediately due and payable a late charge at the rate
of five ($.05) cents for each dollar of such delinquent payment.
7. It is further understood, however, that should any
default be made in the payment of this obligation when due Payee
may also recover all costs of suit and other expenses in connection
with it, together with a reasonable attorneys' commission for
collection (but in any event not less than Five Thousand
($5,000.00)) Dollars, together with interest on any judgment
obtained by Payee at the legal rate of interest, including interest
at the legal rate from and after the date of any execution,
judicial or foreclosure sale until actual payment is made to Payee
of the full amount due Payee.
B. MAKER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY
ATTORNEY OR THE PROTHONOTARY OR CLERK OF ANY COURT IN THE
COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR FOR MAKER AT
ANY TIME AFTER DEFAULT HEREUNDER IN ANY ACTION BROUGHT AGAINST
MAKER ON THIS NOTE AT THE SUIT OF PAYEE, WITH OR WITHOUT
DECLARATION FILED, AS OF ANY TERM, TO WAIVE THE ISSUANCE AND
SERVICE OF PROCESS AND THEREIN TO CONFESS OR ENTER JUDGMENT AGAINST
MAKER FOR THE ENTIRE UNPAID PRINCIPAL OF THIS NOTE AND ALL OTHER
SUMS PAID BY PAYEE TO OR ON BEHALF OF MAKER PURSUANT TO THE TERMS
OF THIS NOTE OR THE MORTGAGE, AND ALL ARREARAGES OF INTEREST
THEREON, TOGETHER WITH COSTS OF SUIT, A REASONABLE ATTORNEYS'
COMMISSION FOR COLLECTION (BUT IN ANY EVENT NOT LESS THAN FIVE
THOUSAND ($5,000.00) DOLLARS) AND TO ASSESS DAMAGES FOR THE AMOUNT
DUE; AND FOR SO DOING THIS NOTE OR A COpy HEREOF VERIFIED BY
AFFIDAVIT SHALL BE SUFFICIENT WARRANT.
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9. The authority granted herein to confess judgment
shall not be exhausted by any exercise thereof but shall continue
from time to time and at all times until payment in full of all of
the amounts due hereunder.
10. The remedies of Payee as provided herein, or in the
Mortgage, and the warrants contained herein or attached hereto or
contained in the Mortgage shall be cumulative and concurrent, and
may be pursued singly, successively, or together at the sole
discretion of Payee, and may be exercised as often as occasion
therefor shall occur; and the failure to exercise any such right or
remedy shall in no event be construed as a waiver or release
thereof.
11. Maker hereby waives and releases all errors, defects
and imperfections in any proceeding instituted by Payee under the
terms of this Note, of any warrant attached hereto, or of the
Security Instruments, as well as all benefit that might accrue to
Maker by virtue of any present or future laws of exemption which
may relate to property or securities refe.renced in the Security
lnstruments, or any other property, real or personal, or any part
of the proceeds arising from any sale of any such property, from
attachment, levy, or sale under execution, or providing for any
stay of execution to be issued on any judgment recovered on this
Note and any warrant contained herein or attached hereto or in any
action to execute any judgment obtained, exemption from civil
process, or extension of time for payment; and Maker agrees that
any real estate that may be levied upon pursuant to a judgment
obtained by virtue hereof, on any writ of execution issued thereon,
may be sold upon any such writ in whole or in part in any order
desired by payee.
12. Maker and all endorsers, sureties and guarantors
hereby jointly and severally waive presentment for payment, demand,
notice of demand, notice of nonpayment or dishonor, protest and
notice of protest of this Note, and all other notices in connection
with the delivery, acceptance, performance, default, or enforcement
of the payment of this Note, and they agree that the liability of
each of them shall be unconditional, without regard to the
liability of any other party, and shall not be affected in any
manner by any indulgence, extension of time, renewal, waiver or
modification granted or consented to by Payee. Maker and all
endorsers, sureties, and guarantors consent to any and all
extensions of time, renewals, waivers, or modifications that may be
granted by Payee with respect to the payment or other provisions of
this Note, and to release of the collateral or any part of it, with
or without substitution, and agree that additional makers,
endorsers, guarantors, or sureties may become parties to it without
notice to them or affecting their liability under this Note.
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13. If any prov1s1on of this Note is held to be invalid
or unenforceable by a Court of competent jurisdiction, the other
provisions of this Note shall remain in full force and effect and
shall be construed liberally in favor of payee in order to
effectuate the provisions of this Note. In no event shall the rate
of interest payable under this Note exceed the maximum rate of
interest permitted to be charged by the applicable law (including
the choice of law rules) and any interest paid in excess of the
permitted rate shall be refunded to Maker. That refund shall be
made by application of the excessive amount of interest paid
against any sums outstanding and shall be applied in such order as
payee may determine. If the excessive amount of interest paid
exceeds the sums outstanding, the portion exceeding the sums
outstanding shall be refunded in cash by Payee. Any crediting or
refund shall not cure or waive any default by Maker under this
Note. Maker agrees, however, that in determining whether or not
any interest payable under this Note exceeds the highest rate
permitted by law, or any non-principal payment including, without
limitation, prepayment fees and late charges shall be deemed to the
extent permitted by law, to be an expense, fee, premium or penalty
rather than interest.
14. (a) Payee shall not exercise any right or remedy
provided for in this Note because of any default of Maker unless
Payee shall have first given Maker written notice of the default
specifying the nature and extent of it, and (i) in the event of a
monetary default, Maker shall have failed to pay the outstanding
sums within a period of five (5) calendar days after the date of
Payee's notice of default, or (ii) in the event of a non-monetary
default, Maker shall have failed within a period of ten (10) days
after the date of Payee's notice of default to begin correcting the
non-monetary default, and to proceed diligently with its efforts to
cure the default until it shall be fully cured within no more than
thirty (30) days after the date of Payee's notice.
(b) However, Payee shall not be required to give
any such notice or to allow any part of the grace period if Maker
shall have filed a petition in bankruptcy or for reorganization or
a bill in equity or otherwise initiated proceedings for the
appointment of a receiver of Maker's assets, or if Maker shall have
made an assignment for the benefit of creditors, or if a receiver
or trustee is appointed for Maker and the appointment or
receivership is not terminated within sixty (60) days.
(c) Notwithstanding anything to the contrary in
this Note, (i) Payee shall not be required to give any such notice
or to allow any grace period more than two (2) times in any twelve-
month period with respect to substantially similar events of
default; (ii) Payee shall be permitted to make any payment which
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Maker should have paid, or perform any other act which Maker should
have performed, and may elect not to regard Maker's non-payment or
non-performance as a default, without giving any such notice or
allowing any part of the grace period if Payee determines, in its
sole judgment, that its security may be threatened or impaired by
reason of such a default; or Payee may elect to regard Maker's non-
payment or non-performance as a default and give the requisite
notice and allow the requisite grace period; (iii) if any other
provision of this Note contains a grace period, the grace period
contained in this Paragraph shall be deemed to run concurrently
with the grace period contained in the other provisions of this
Note; and (iv) Payee shall not be required to give any such notice
or to allow any grace period if the principal, interest and all
other sums evidenced by this Note or secured by the Mortgage are
not repaid in full on the maturity date of this Note.
15. Maker shall have the right to prepay, this
obligation or any portion hereof, without penalty on any payment
due date. If this obligation is prepaid entirely on any date other
than a payment due date, then in that event interest shall be
calculated on a prorata basis to and including the date of payment
and shall be due and payable as of the date of prepayment.
16. Payee shall not be deemed, by any act of omission or
commission, to have waived any of its rights or remedies under this
Note unless such waiver is in writing and signed by Payee, and then
only to the extent specifically set forth in the writing. A waiver
on one event shall not be construed as continuing or as a bar to or
waiver of any right or remedy to a subsequent event.
17. This instrument shall be governed by and construed
according to the laws of the Commonwealth of Pennsylvania.
18. Whenever used, the singular number shall include the
plural, the plural the singular, the use of any gender shall be
applicable to all genders, and the words "Payee" and "Maker" shall
be deemed to include the respective heirs, personal
representatives, successors and assigns of Payee and Maker. If
Maker consists of more than one (1) person, corporation or other
entity, the obligations and liabilities of such persons,
corporations or other entities under this Note shall be joint and
several, and the work "Maker" shall mean all or some or any of
them.
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19. This Note may not be changed or terminated orally.
IN WITNESS WHEREOF, Maker, INTENDING TO BE LEGALLY BOUND
HEREBY, has caused this Note to be executed by its duly authorized
officers and has caused its seal to be hereunto affixed, and duly
attested, the day and year first above written.
WITNESS:
MAKER:
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Marie B. Phillips
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RONALD E. BEINHAUR and
YVONNE M. BEINHAUR,
PLAINTIFFS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
LINWOOD B. PHilLIPS, III and
MARIE B. PHilLIPS,
DEFENDANTS
00-2099 CIVIL TERM
IN RE: PETITION TO STRIKE CONFESSION OF JUDGMENT
BEFORE BAYLEY. J.
ORDER OF COURT
AND NOW, this ~+ day of June, 2000, the petition of Linwood B. Phillips,
III, to strike a confession of judgment, IS DENIED.
By the Court}
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John E. Beinhaur, Esquire
For Plaintiffs
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Robert Frey, Esquire
For Defendants
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RONALD E. BEINHAUR and
YVONNE M. BEINHAUR,
PLAINTIFFS
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
LINWOOD B. PHILLIPS, III and
MARIE B. PHILLIPS,
DEFENDANTS
00-2099 CIVIL TERM
IN RE: PETITION TO STRIKE CONFESSION OF JUDGMENT
BEFORE BAYLEY. J.
OPINION AND ORDER OF COURT
Bayley, J., June 8, 2000:--
On April 6, 2000, plaintiffs, Ronald E. Beinhaur and Yvonne M. Beinhaur,
confessed judgment for $38,602.82 against defendants, Linwood B. Phillips, III and
Marie B. Phillips. The judgment provided:
Pursuant to the authority contained in the warrant of attorney, the
original or a copy of which is attached to the complaint filed in this action, I
appear for the Defendants and confess judgment in favor of the Plaintiffs
and against Defendants as follows:
NOTE BALANCE
INTEREST AT 9% PER ANNUM
FROM 12/01/97-03/31/00
ATTORNEYS FEES
TOTAL
$28,115.70
$ 5,487.12
$ 5.000.00
$38,602.82
Defendant, Linwood B. Phillips, III, filed a petition to strike the judgment in which
he averred, "I did not voluntarily, intelligently and knowingly give up my right to notice
and hearing prior to the entry of judgment." A Rule was entered against plaintiffs to
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00-2099 CIVIL TERM
show cause why the petition should not be granted, upon which hearings were
conducted on May 25 and June 5, 2000.
Defendants purchased plaintiffs' landscaping business in 1992. After
negotiations they agreed to a purchase price of $145,000, payable $95,000 in cash with
plaintiffs financing the balance of $45,000. At settlement on September 25, 1992,
defendants signed a note to plaintiffs in the principal sum of $45,000 payable in monthly
installments of principal and interest of $570.04 from November 1, 1992, through
October 1, 2002. The interest rate was 9% amortized over ten years. The note
contained nineteen paragraphs, eighteen of which were in regular type with paragraph
eight in capitals, as follows:
MAKER HEREBY IRREVOCABLY AUTHORIZES AND
EMPOWERS ANY ATTORNEY OR THE PROTHONOTARY OR CLERK
OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR
ELSEWHERE, TO APPEAR FOR MAKER AT ANY TIME AFTER
DEFAULT HEREUNDER IN ANY ACTION BROUGHT AGAINST MAKER
ON THIS NOTE AT THE SUIT OF PAYEE, WITH OR WITHOUT
DECLARATION FILED, AS OF ANY TERM, TO WAIVE THE ISSUANCE
AND SERVICE OF PROCESS AND THEREIN TO CONFESS OR ENTER
JUDGMENT AGAINST MAKER FOR THE ENTIRE UNPAID PRINCIPAL
OF THIS NOTE AND ALL OTHER SUMS PAID BY PAYEE TO OR ON
BEHALF OF MAKER PURSUANT TO THE TERMS OF THIS NOTE OR
THE MORTGAGE, AND ALL ARREARAGES OF INTEREST THEREON,
TOGETHER WITH COSTS OF SUIT, A REASONABLE ATTORNEYS'
COMMISSION FOR COLLECTION (BUT IN ANY EVENT NOT LESS
THAN FIVE THOUSAND ($5,000.00) DOLLARS) AND TO ASSESS
DAMAGES FOR THE AMOUNT DUE; AND FOR SO DOING THIS NOTE
OR A COpy HEREOF VERIFIED BY AFFIDAVIT SHALL BE
SUFFICIENT WARRANT.
Prior to purchasing plaintiffs' landscaping business in 1992, defendant had been
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00-2099 CIVIL TERM
doing some landscaping work. He had never previously purchased a business.
Defendant and his wife were able to purchase plaintiffs' business when he received a
$100,000 personal injury settlement from Roadway Trucking Company. 1 He used
$95,000 for the down payment and $5,000 to start operations. Defendant testified that
after signing a confidentiality agreement, he had access to plaintiffs' business records,
however, he never saw any of the paperwork for the closing until settlement on
September 25, 1992. Defendant testified that there was a written contract of sale that
specifically set forth that he could obtain counsel, however, he had no money other
than the $100,000 from his personal injury settlement that he was putting into the
business so he felt he could not afford to hire an attorney. He did not seek the advice
of an attorney during any of the negotiations or at settlement.
Plaintiffs' son is an attorney and he prepared all of the settlement papers.
Defendant testified that plaintiff, Ronald E. Beinhaur, led him to believe that he would
get free representation from the son although he acknowledged that he had no
agreement with the son for representation. Defendant testified that he trusted plaintiffs'
son and did not read any of the settlement documents including the note containing the
warrant to confess a judgment after a default. He testified that the settlement took
about an hour and that everything was rushed. He had an opportunity to ask questions
to plaintiffs' son which he did. He testified that he remembered something about a
1 Defendants are now divorced. Marie B. Phillips is not a party to the petition of
Linwood B. Phillips, III, to strike the confession of judgment.
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00-2099 CIVIL TERM
$5,000 attorney fee although he had no idea what it meant. Defendant, Linwood B.
Phillips, III, is now a laborer who works for his father.
Plaintiff, Ronald E. Beinhaur, is now a commercial real estate broker. Plaintiff
testified that defendants approached him about purchasing his business. He testified
that he wanted a total cash transaction but that defendants' source of cash was limited
by the amount he would be receiving from an upcoming personal injury settlement.
Plaintiff testified that defendants reviewed his books and records at the company office
after they signed a confidentially agreement, and that they took some of those records
to their home for further review. After negotiating the terms of purchase, and before
settlement, defendant spent some time at the business which included going out on
calls with plaintiff to met customers. Plaintiff testified that he thought defendants were
using professional advice and that he never discouraged them from obtaining an
attorney. He testified that he never told defendants that they would be receiving free
representation from his son, and that defendants never expressed any dissatisfaction
with the purchase.
Attorney, John E. Beinhaur, testified that his father asked him for representation
regarding the sale of the landscaping business. He met with the Phillips and discussed
some proposals for a sale. Beinhaur testified that Linwood Phillips told him he would
use Robert Frey, Sr., Esquire, if he needed legal assistance. When the terms of the
sale were negotiated, Beinhaur prepared an Agreement and asked Phillips if he wanted
it sent to Attorney Frey. Phillips said "no." The agreement signed on July 28, 1992,
-4-
"
00-2099 CIVIL TERM
contained the following clause:
Reoresentation. The parties hereto agree that they have consulted
legal counsel, or have had the opportunity to do so, regarding the
provisions contained in this Agreement and the effect thereof on each
party, legal or otherwise.
Beinhaur testified that he was representing his parents and his father never
asked him to represent the Phillips. He told the Phillips that he was representing his
parents. He does not know if the Phillips ever sought legal advice. Beinhaur testified
that he prepared the closing documents and they were available for review during the
week prior to the closing on September 25, 1992; however, he does not remember if
the Phillips did review them.
DISCUSSION
This was a commercial transaction. As set forth in Germantown Savings Bank
v. Talacki, 657 A.2d 1285 (Pa. Super. 1995), Pennsylvania's confession of judgment
procedure has been upheld in commercial transactions. D.H. Overmyer Co. v. Frick
Co., 405 U.S. 174,92 S.Ct. 775, 31 L.Ed.2d 124 (1972); International Equity Corp. v.
Pepper & Tanner, Inc., 222 Pa. Super. 118 (1972). The warrant of attorney to confess
judgment was prominently highlighted in paragraph 8 of the note the Phillips signed on
September 25, 1992. The failure to read a contract before signing it is an unavailing
excuse or defense and cannot justify an avoidance, modification or nullification of the
contract. Germantown Savings Bank v. Talacki, supra. We find that John Beinhaur,
Esquire, told the Phillips that he was representing his parents, not them. There was no
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00-2099 CIVIL TERM
fraud by plaintiffs nor was there a mutual mistake of fact concerning legal
representation during the negotiations and the execution of the contract and closing
documents. Upon default, defendant voluntarily, intelligently and knowingly gave up his
rights to notice and hearing prior to the entry of judgment.
ORDER OF COURT
AND NOW, this g+- day of June, 2000, the petition of Linwood B. Phillips,
III, to strike a confession of judgment, IS DENIED.
Edgar B. Bayley, J.
By the <;otirt,
John E. Beinhaur, Esquire
For Plaintiffs
Robert Frey, Esquire
For Defendants
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,
RONALD E. BEINHAUR and
YVONNE M. BEINHAUR,
PLAINTIFFS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
LINWOOD B. PHilLIPS, III, and
MARIE B. PHilLIPS,
DEFENDANTS
00-2099 CIVil TERM
ORDER OF COURT
AND NOW, this ~day of May, 2000, upon consideration ofthe -
within Petition, a hearing is scheduled for 2:30 p.m., Wednesday, May 17, 2000, in
Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania.
Defendant shall forthwith serve this order of plaintiffs' counsel.
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Yvonne M. Beinhaur
Plaintiffs
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:IN THE COURT OF COMMON PLEAS:z ::J
:CUMBERLAND COUNTY, PENNSYLVANIAP
:NO. 00-2099 CIVIL TERM
v.
:CIVIL ACTION . LAW
Linwood B. Phillips III and
Marie B. Phillips
Defendants
PETITION TO STRIKE JUDGMENT
REQUEST FOR PROMPT HEARING
I hereby certify that I did not voluntarily, intelligently and knowingly give up my right to
notice and hearing prior the the entry of judgment. I petition the court to strike the judgment on this
ground and request a prompt hearing on this issue. See Answer and New Matter filed herewith.
I verify that the statements made in this Request for Hearing are true and correct. I
understand that false statements herein, are made subject to the penalties of 18 Pa.CS. S 4904
relating to unsworn falsifications to authorities.
Notice of the hearing should be given to me at
Frey and Tiley
5 South Hanover Street
Carlisle, PA. 17013
717-243-5838
In....
Dated: ~ 7 ~. 2000
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Linwood B. Phillips, ill, Defendant
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Yvonne M. Beinhaur
Plaintiffs
v.
:IN THE COURT OF COMMON PLEAS
:CUMBERLANCOUNTY,PENNSYL VANIA
.
:NO. 00-2099 CIVIL TERM
:CIVIL ACTION - LAW
Linwood B. Phillips III and
Marie B. Phillips
Defendants
To: Ronald E. Beinhaur
Yvonee M. Beinhaur
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 entered 'against you.
0~~~d.
Robert G. Frey
Attorney for Defendant
5 South Hanover Street
Carlisle, Pennsylvania 17013
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Plaintiffs
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:IN THE COURT OF COMMON PLEAS
:CUMBERLANCOUNTY,PENNSYL VANIA
.
:NO. 00-2099 CIVIL TERM
:CIVIL ACTION - LAW
Linwood B. Phillips III and
Marie B. Phillips
Defendants
ANSWER TO COMPLAINT FOR CONFESSION OF JUDGMENT
AND NOW COMES Linwood B. Phillips. III. one of the defendants herein, by and
through his attorneys Frey and Tiley and answers the Complaint of Plaintiffs as follows:
I. Admitted.
2. Admitted in part denied in part. It is admitted that the address of Linwood B.
Phillips, III is 1530 Centerville Road, Newville, Cumberland County, Pennsylvania, 17241. It is
denied that Marie B. Phillips resides at that address. Linwood B. Phillips, III and Marie B.
Phillips are divorced and Marie B. Phillips no longer lives at 1530 Centerville Road, Newville,
Pennsylvania. By Marriage Settlement Agreement pursuant to said divorce, all of the rights and
responsibilities of Marie B. Phillips were assigned to Linwood B. Phillips, III, Defendant herein.
3 . Admitted.
4. Admitted in part denied in part. It is admitted that Defendants have failed to make
any payments under the note since November 21, 1997. It is denied that failure to make payment
is a default under the agreement for the reason that Plaintiffs materially misled Defendants as to the
true value of the property being purchased, Plaintiffs fraudulently discouraged to obtain advice
concerning the advisability of the transaction or the value of the property being purchased, and
Plaintiffs fraudulently induced Defendants to sign the Installment Note based on the
misrepresentations of the Plaintiffs. Defendants further believe no default occurred as the Plaintiffs
were adequately compensated for the full value of the property delivered to him.
5. Denied. The allegation contained in Paragraph 5 are within the exclusive
knowledge of Plaintiffs. After reasonable investigation, Defendants are unable to determine the
accuracy of the allegation" By way of further answer, Defendants are not aware of any
assignment.
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6. Denied" The allegation contained in Paragraph 5 are within the exclusive
knowledge of Plaintiffs. After reasonable investigation, Defendants are unable to determine the
accuracy of the allegation. By way of further answer, Defendants are unaware of the entry of
judgment in any other jurisdiction.
7.Admitted in part denied in part. It is admitted that the installment note contained language
empowering the Prothonotary, Clerk, or Attorney to confess judgment against the defendants. It is
denied that said provision concerning the confession of judgment is valid for the reason that
Defendants were misled as to the value of the property purchased and fraudulently induced into
signing the installment note.
8. Denied. It is denied that any further amounts are owed to Plaintiffs. As Defendants
informed Plaintiffs in 1997, he believes the Plaintiffs have been more than adequately compensated
for the value of the property transferred and that they were misled as to the value of the property
and fraudulently induced into signing the installment note obligating payment.
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9. Paragraphs I through 8 are incorporated hereiri by reference.
10. Among the property transferred to Defendants by agreement in November 1992
were Plaintiffs' rights under contracts for service for the following year and the "good will" of
Plaintiffs' business.
I 1. Plaintiffs informed Defendants that these contracts would provide significant
income to him, thereby justifying the purchase price.
12. A significant number of these contracts were canceled prior to the beginning of the
1993 lawn care season for the reason that the customers received poor service in the prior year
from Plaintiffs.
13. Plaintiffs knew or should have known of the customer dissatisfaction, fraudulently
failed to disclose this information, and fraudulently implied that Defendants could expect to receive
the same amount of income as Plaintiffs had received in 1992.
14. As a result of the contract cancellation, Defendants suffered a loss during their first
year in business. This loss was the result of the fraudulent overstatement by Plaintiffs of the
values of the service contracts and good will of the business.
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15. Defendants had never previously purchased a business, were not afforded the
opportunity to obtain advice and counsel prior to signing the installment note, and were induced by
Plaintiffs to allow their attorney to prepare all of the documents without review by any attorney
selected by Defendants.
16. The misrepresentations by Plaintiffs as to the value of the property, service
contracts and good will being transferred were made knowingly and fraudulently by Plaintiffs and
materially overstated the value to be transferred.
17. Defendants relied on the misrepresentations of Plaintiffs to their detriment.
WHEREFORE Defendant Linwood B. Phillips, III requests. the Honorable Court to enter
judgment in favor of Linwood B. Phillips, III, and against the Plaintiffs.
By:
Robert G. Frey
Supreme Court ID No. 46397
5 South Hanover Street
Carlisle, PA. 17013
717-243-5838
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Attorney for Defendants
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Date: May ?l
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VERIFICATION
I, Linwood B. Phillips, III have read the foregoing document and hereby affirm and verify
that it is true and correct to the best of my personal knowledge, information and belief. I
understand that false statements made herein are subject to the penalties of 18 Pa. C. s. A. ~ 4904,
relating to unsworn falsification to authorities.
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Linwood B. Phillips, m
Date: May 'ir , 2000
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Ronald E. Beinhaur and
Yvonne M. JBeinhaur
Plaintiffs
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 06 -;2Cfi9 GOlC T~
: CIVIL ACTION - LAW
v.
Linwood B. Phillips III and
Marie B. Phillips
Defendants
NOTICE UNDER RULE 2958.1 OF JUDGMENT AND EXECUTION THEREON
NOTICE OF DEFENDANT'S RIGHTS
TO: Linwood B. Phillips, III, and Marie B. Phillips, Defendants
A judgment in the amount of $38,602.82 has been entered against you and in favor of the
plaintiff without any prior notice or hearing based on a confession of judgment contained in a written
agreement or other paper allegedly signed by you. The sheriff may take your money or other
property to pay the judgment at any time after thirty (30) days after the date on which this notice is
served on you.
You may have legal rights to defeat the judgment or to prevent your money or property from
being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND
PRESENT lITO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS
NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS.
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 Courthouse
One Courthouse Square
Carlisle, P A 17013
(717) 240-6200
BEINHAUR & CURCILLO
BY:~~
000 . Bemhaur, EsqUlre
Supreme Court ID No.: 55631
4650 Fritchey Street
Harrisburg, P A 171 09
(717) 651-9100
Attomey(s) for Plaintiff(s)
DATE: l_4;u16r 'Afff(JfJ
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CERTIFICATE OF SERVICE
I, John R. Beinhaur, Esquire, hereby certifY that I have, this ~ day of April,
2000, served a copy of this Document by first class United States certified mail, postage prepaid,
return receipt requested, to the following:
Linwood B. Phillips, III
Marie B. Phillips
1530 Centerville Road
Newville, Pennsylvania 17241.
BEINHAUR & CURCILLO
BY~~
ohn R. Beinhaur, Esquire
ID# 55631
4650 Fritchey Street
Harrisburg, P A 17109
(717) 651-9100
Attomey(s) for Plaintiff(s)
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RONALD E. BEINHAUR and
YVONNE M. BEINHAUR,
Plaintiffs
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
v.
LINWOOD B. PHILLIPS, III, and
MARIE B. PHILLIPS,
Defendants
NO. 00-2099 CIVIL TERM
RESPONSE TO NEW MATTER
9.
The averments and/or responses of Plaintiffs paragraphs I through 8 are incorporated herein
j by reference.
10.
Admitted in part and denied in part. It is denied that any property was transferred by
agreement or otherwise in November, 1992. The transfer of the business and related
documentation dates are September 25, 1992. It is admitted that the transfer included "good
will" but denied that it included transfer of rights under contracts for service for the
following year. To the contrary, the agreement provided, in paragraph 18, that Plaintiff
"...agrees to assist Purchaser with the bidding and re-bidding of commercial landscape
maintenance contracts for the 1993 season."( emphasis supplied) A copy of the Agreement
dated July 28, 1992, is attached hereto and incorporated herein by reference as Exhibit "A".
II. Denied. Plaintiffs made no oral representations not contained in the Agreement dated July
j 28, 1992, attached and incorporated as Exhibit "A." Particular reference is made to
paragraph 12 thereunder whichstates as follows: "12. Entire Al!reement. This Agreement,
including Exhibits, if any, contain the entire agreement between the parties hereto. All prior
negotiations and agreements, whether oral or written, are null and void." By way of further
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answer, Defendants performed their own investigation and analysis of Plaintiffs' business
when they approached Plaintiffs regarding purchase of same.
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Denied. To the contrary, Plaintiffs av.erthat prior to the beginning of the 1993 season, to the
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best oftheir knowledge, information and belief, that only one (1) of approximately twenty-
five (25) customers failed to renew their maintenance agreements. It is specifically denied
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states that all negotiations and agreements, oral or written, are null and void and the entire
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denied. Reference is again directed to the July 2S, 1992, Agreement at paragraph 12, which
agreement of the parties is reflected in the executed written Agreement. It is specifically
denied that as the averment relates to Plaintiffs, there was customer dissatisfaction at the
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time of the transfer. Additionally, ids denied that there were any representations, implied
or otherwise, regarding Defendants' expected income if they were to purchase. Plaintiffs
disclosed their income as part of Defendants' requested investigation and analysis and
specifically stated in writing in the Agreement of July 2S, 1992, at Paragraph IS, that there
were no representations or warranties for the performance or success of the business after the
closing date.
14. Denied. Plaintiffs are without knowledge or information sufficient to form a response
concerning the profits or losses of Defendants. To the extent a response is required, the
allegation is denied. It is specifically denied that Plaintiffs fraudulently, overstated any
valuation of the business. To the contrary, Defendants performed their own investigation and
analysis of the values of the business after Plaintiffs stated their selling price. Plaintiffs
merely provided the documentation requested by Defendants. It is also denied that Plaintiffs
had any involvement or responsibility for any alleged contract cancellation after the date of
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the sak Reference is again made to the July 28, 1992, Agreement at Paragraph 12 which
states that the entire agreement of the parties is contained therein and Paragraph 18 which
states that there was no representation or warranty for the performance or success of the
business after the closing date. Plaintiff s specifically deny the allegation of fraud in
_ disclosing Plaintiffs' income as it relates to Defendants' own valuation and analysis of their
investment. This averment is supported by Defendants' own correspondence of July 10,
1992, which is attached hereto and incorporated herein by reference as Exhibit "B," which
,
recites their extensive research and analysis.
15. Denied. Plaintiffs are without knowledge or information sufficient to respond to the
averment of whether or not Defendants had previously purchased a business. To the extent
a response is required, the allegation is denied. It is specifically denied that Defendants were
not afforded the opportunity to obtain advice and counsel prior to signing the said Note. To
the contrary, Defendants represented to Plaintiffs that they had a family attorney named
Robert Frey who was partners with Defendant Phillips' father in numerous i!lvestments and
_ would utilize his services if they desired. Plaintiffs in no way discouraged Defendants from
having their own counsel at any time and in fact suggested they do so.
16. Denied. It is specifically denied that Plaintiffs misrepresented the value of property, service
contracts and good will being transferred. It is also denied that there was any overstatement,
whether knowingly, fraudulently or otherwise. To the contrary, Defendants were afforded
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ample time and opportunitY to perform their own investigation and analysis ofthe transaction
and did so. Defendants provided evidence of same to Plaintiffs in the form of
correspondence to Roadway Services, Inc., who provided Defendants with their down
payment of $95,000.00 dated July 10, 1992, which correspondence is attached hereto as
Exhibit "B," a full two and one-half (2\1.,) months before signing the Note. Additionally,
Defendants signed a confidentiality agreement so they would be able to review all of the
records of Plaintiffs, including but not limited to tax returns, in their investigation and
analysis. A copy of the confidentiality agreement is attached hereto and incorporated herein
- by reference, as Exhibit "C." Defendants reviewed all records either themselves or with their
advisors and formed their own opinions which were not in reliance on any representation of
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Plaintiffs because as stated previously, all representations by Plaintiffs were contained in the
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Agreement of July 28, 1992.
WHEREFORE, Plaintiffs request this Honorable Court enter judgment in their favor and
permit the money judgment filed to stand against Defendants.
Respectfully submitted,
Dated:
;f..,t ~ Zt(/ '2()(.10
BEINHAUR & CURCILLO
By: ~lf1!2;:
Supreme Court ID No.: 55631
4650 Fritchey Street
Harrisburg, PA 17109
(717) 651-9100
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VERIFICATION
We, Ronald E. Beinhaur and Yvonne M. Beinhaur, have read the foregoing
Document and hereby affirm and verify that it is true and correct to the best of my personal
knowledge, information and belief. I verify that all of the statements made in the foregoing are true
and correct and that false statements made therein may subject me to the penalties of 18 Pa.C.S.A.
Section 4904, relating to unsworn falsification to authorities.
~~d~~~Al
Ronald E. Beinhaur
~~~~
~nne M" Beinhaur
DATE: 7tf7lf&j~/()tfJ[j
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CERTIFICATE OF SERVICE
AND NOW, this :;JIll-day of M~ I{
, 2000, I, John R Beinhaur, hereby
certify that I have served the foregoing document by mailing a true and correct copy by United States
first class mail, postage prepaid, addressed as follows:
Robert G. Frey, Esquire
FREY and TILEY
5 South Hanover Street
Carlisle, P A 17013
Attorney for Defendants
Respectfully submitted,
BEINHAUR & CURCILLO
BY:~
John R. Beinhaur
Supreme Court LD. #55631
4650 Fritchey Street
Harrisburg, P A 17109
(717) 651-9100
Attorney for Plaintiff
DATED:
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AGREEMENT
THIS AGREEMENT, made this :Jfr day of July, 1992, by and
between Ronald E. Beinhaur and Yvonne M. Beinhaur of 401 Rutherford
Road, Harrisburg, Dauphin County, Pennsylvania (hereinafter
collectively "Beinhaur" or "Sellers") and Linwood B. Phillips III
and Marie B. Phillip of 1530 Centerville Road, Newville, Cumberland
County, Pennsylvania (hereinafter collectively "Phillips" or
"Purchaser") .
Recitals:
WHEREAS, the parties to this Agreement have dete~ined
that Purchaser shall acquire and that Sellers shall sell all of the
assets, including equipment, maintenance contracts and goodwill, of
Sellers' business t/a Ron Beinhaur Landscaping (the "Business")
upon the terms and conditions more fully set forth hereinafter,
and;
WHEREAS, the parties hereto desire to define and
memorialize their rights and obligations as they relate to the sale
and acquisition of the Business.
NOW, THEREFORE, the parties hereto, in consideration of
the mutual promises and covenants herein contained, INTENDING TO BE
LEGALLY BOUND HEREBY, agree as follows:
1.
The Recitals set forth above are
Recitals:
incorporated herein by reference and are made a part hereof.
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2.
Purchase of Business:
On the Closing Date., as
hereinafter determined, Sellers shall respectively sell and
transfer to Purchaser, and Purchaser hereby agrees to purchase and
acquire from Sellers, subject the terms herein, the assets of the
Business as above stated:
3. Purchase Price and Pavrnent. The purchase price shall
be paid as follows:
(a) At the signing of this Agreement, Purchaser shall
execute a Note in the amount of Twenty Five Thousand
($25,000.00) Dollars, which Note shall be redeemed and
cancelled on the Closing Date unless a default occurs
hereunder.
(b) At Closing Date, $95,000.00 shall be paid for
acquisition of the equipment, in the form of certified
funds, a bank check or attorneys escrow check payabl~ to
Sellers. .
(c) The remaining amount of $45,000.00, representing
consideration for the goodwill of the business, shall be
paid to Sellers pursuant to a Note dated the Closing
date. The amounts due shall be paid pursuant to the
terms of said Note. The principal amount shall bear
i.nterest at the rate of nine (9 %) percent per annum
amortized over a ten (lO) year period from the Closing
Date. Monthly payments of principal and interest shall
be $570.04. Payments shall be made on the 1st day of
each month unless that date shall fall on a Sunday or a
state or federal legal holiday, in which event monthly
payment shall be due and payable on the next business day
which is not a Sunday or a state or federal legal
holiday. In the event monthly payments are received
later than the 5th day after the first day of themQ~th,
or the 5th day after the due date as determined above,
then in that event a late fee of five (5%) percent of the
total monthly payment shall be due and payable as a late
charge. Performance under said Note shall be secured in
part by a Financing and Security Agreement and UCC-1
Financing Statements against the equipment, inventory,
machinery, fixtures, accounts, accounts receivable,
vehicles and other personalty of the Corporation.
4. Closinq Date. Closing date shall be August 12, 1992
unless agreed to otherwise in writing by the parties hereto.
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5.
Conditions and Oblioations of Sellers.
The
obligation of Purchaser to close pursuant to this Agreement is
under and subject to the satisfaction of the following conditions
and assumption of the following obligations by Sellers:
(a) All' warranties, covenants and agreements
made herein by Sellers are true and correct on
the Closing Date, and the Purchaser shall be
entitled to receive an affidavit to that
effect, if requested, on the Closing Date,
executed by each Seller.
(b) Sellers assume full liability and agree
to defend, indemnify and hold harmless
Purchaser, Purchaser's agents,
representatives, heirs, successors and assigns
with respect to any third party claim,
liability, loss, cost, damage or expense
arising out of or in any way connected with
their ownership of the Business prior to the
Closing Date hereunder
,.
6. Conditions and Oblioations of Purchaser.
The obligation of Sellers to close pursuant to this
Agreement
is
to
Purchaser's
under
and
subject
satisfaction of the following conditions and assumption
of the following obligations:
(a) Lease. Purchaser shall continue to lease
from Beinhaur, or their representative, the
property located at 6130 Old Jonestown Road,
Harrisburg, Pennsylvania 17112, at the rate of
$500.00 per month under the same terms and
conditions exclusive of price, as exist in the
Lease currently in operation and dated March,
1991 for the period which Purchaser sp.all
require, except that Purchaser shall give
Beinhaur or their representative 30 days prior
written notice to quit said Lease.
(b) Purchaser shall, as of the Closing Date,
assume all obligations and liabilities of the
Business not satisfied on the Closing Date.
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(c) Notwithstanding any other provisions
hereto, the foregoing warranties,
representations and agreements contained in
this Paragraph 6 shall survive the Closing
hereunder and shall remain in full force and
effect.
7. Sellers' Representations and Warranties. After such
investigations as deemed necessary by Sellers,
and after
discussions with such of Sellers' professional advisors and
professionals employed by Sellers as deemed appropriate, Sellers
hereby covenant, warrant and represent to and agree with Purchaser
as follows:
(a) Sellers are not aware of any substantial
liabilities, contingent or otherwise, as to
the Business, not reflected on the Business
records, financial or otherwise, as of the ~
Closing Date.
(b) To the best of Sellers' knowledge, there
are no actions ," sui ts , proceedings or
investigations pending or threatened against
or affecting the Business at law or in equity
or before any federal, state, municipal or
other governmental department, commission,
board, bureau, agency or instrumentality,
domestic or foreign, relating to the
activities of the Business prior to Closing
Date which involves the likelihood of any
r" . judgment or liability, whether or not covered
by insurance in excess of Five Thousand
($5,000) Dollars in anyone case or of Ten
Thousand ($10,000) Dollars in the aggregate as
to the Corporation, or which may result in any
material adverse change in the business,
operations, properties or assets or in the
condition, financial or otherwise, of the
Business. To the best of Sellers' knowledge,
the Business is not in default with respect to
any order, writ, injunction or decree of any
court or federal,. state, municipal or other
governmental department, commission, board,
bureau, agency or instrumentality, domestic or
foreign.
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(c) The Sellers shall, at the request of
Purchaser, execute and deliver to Purchaser
all such further instruments, agreements,
assignments, assurances and other documents as
the Purchaser or Purchaser's counsel may
reasonably request in order to effect the sale
herein agreed to.
(d) Attached hereto as Exhibit "A" is a brief
description of all equipment and furniture
owned by the Business and/or Sellers.
(e) Notwithstanding any other provisions
hereto, the foregoing warranties,
representations and agreements contained in
this Paragraph 7 shall survive the Closing
hereunder and shall remain in full force and
effect.
B. Expenses. The Purchaser and Sellers shall
pay all expenses incurred by each of them in connection
with this Agreement and/or the closing hereunder.
9.
Broker~.
The parties warrant that no
finder or broker is entitled to any compensation as the
result of the purchase and sale contemplated hereby.
10.
Notices.
Notices to parties in connection
herewith shall be delivered or mailed by certified mail,
postage prepaid, to the parties at the following
addresses:
To Sellers:
Mr. Ronald and Yvonne Beinhaur
401 Rutherford Road
Harrisburg, PA 17109
With Copy to:
John R. Beinhaur, Esquire
4309'Linglestown Road, Suite 210
Harrisburg, PA 17112
To Purchaser:
Linwood and Marie Phillips
1530 Centerville Road .
Newville, PA 17241
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11. Severability. If any provision of this
Agreement or the application thereof to any entity,
person or circumstance shall be invalid or unenforceable
to any extent, the remainder of this Agreement and the
application of its provisions to the other entities,
persons or circumstances shall not be affected thereby
and shall be enforced to the greatest extent permitted by
law.
12.
Entire Aareement.
This Agreement,
including Exhibits, if any, contain the entire agreement
between the parties hereto. All prior negotiations and
agreements, whether oral or written, are null and void. /'
l3. Amendment. This Agreement may be amended
at any time by written agreement of all of the parties
hereto. This Agreement may not be amended orally.
14. Pennsylvania Law. This Agreement relates
to a PennsYlvania corporation and parties domiciled in
Pennsylvania and shall be governed by the laws , including
the law of conflict of laws, of the Commonwealth of
Pennsylvania.
l5. Representation. The parties hereto agree
that they have consulted legal counsel, or have had the
opportunity to do so, regarding the provisions contained
in this Agreement and the effect thereof on each party,
legal or otherwise.
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16. Bindina Effect. This Agreement shall be
binding upon and inure to the benefit of the undersigned,
as well as their respective heirs, successors,
administrators, and permitted assigns, if any.
17. Default. The Parties hereto agree that
the parties' performance hereunder may be enforced at law
or in equity.
In the event any party is required to
institute legal action to enforce the terms hereof or as
a result of a breach or default, the prevailing party
shall be entitled to receive an award of reasonable
counsel fees, as determined in such, legal action,
together with costs of suit.
In the event of default under this Agreement or
any supplemental documentation executed on the Closing
Date, the following provisions shall apply:
(a) In the event of Purchaser's failure
to close for any reason other than
Sellers' defaul t, Sellers shall be
entitled to collect and enforce the Note
dated even date herewith.
(b) In the event of Purchaser's default
after the Closing Date, Seller shall be
entitled to collect and enforce the Note
executed at Closing and/or to resume the
operation of the Business free and clear
of any interference by Purchaser. All
amount paid at the Closing Date shall be
considered liquidated damages. The
parties hereto agree that the above
provisions are fair and shall constitute
the agreement of the parties. The
provisions of this paragraph, shall
survive closing.
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18. Owner Consul tine Services. Ronald E.
Beinhaur agrees to assist Purchaser with the bidding and
re-bidding of commercial landscape maintenance contracts
for the 1993 season. The bidding process shall take
place during November of 1992. Ronald E. Beinhaur also
agrees to consult with Purchaser, through the Spring of
1993, at no additional charge to Purchaser, to assure
training of Purchaser and their employees. Said
consulting services do not constitute any representation
or warranty for the performance or success of the
Business after the Closing Date.
19. Continued Emplovrnent. Purchaser agrees to
the continued employment of Ronald E. Beinhaur II in the
capacity of General Manager, which duties shall include
scheduling of jobs, estimating of jobs and maintenance
contracts, overseeing of work and training of Purchaser
and their employees, for a period of not less than four
(4) months nor longer than twelve (12) months, unless
agreed to otherwise between Purchaser and Ronald E.
Beinhaur II in writing.
Compensation for Ronald E. Beinhaur II shall be
at the rate of nine and 08/100 ($9.08) Dollars per hour
and shall be paid on the dates for payroll as determined
by purchasers, in the course of their operation of the
Business, but no less frequently than twice monthly.
Purchaser may release Ronald E. Beinhaur II from
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employment any time after the initial four ( 4) ,month
period after the Closing Date upon thirty (30) days
written notice to Ronald E. Beinhaur II. Purchasers may,
subsequent to terminating the employment of Ronald E.
Beinhaur II, retain the consulting services of Ronald E.
Beinhaur II on an hourly basis at a rate agreed to in
writing between the parties.
Each consultation shall
incur a minimum of four (4) hours consulting time and
shall be subject to the then employment schedule of
Ronald E. Beinhaur II. Nothing herein contained to the
contrary shall require Ronald E. Beinhaur I I to be
employed longer than four (4) months from the Closing
Date or perform consulting services. Purchasers shall
execute, on the Closing Date hereunder, an Employment
Agreement, as outlined above, with Ronald E. Beinhaur II.
The provisions of this paragraph shall survive closing
hereunder.
20. Equipment. Ronald E. Beinhaur II shall
offer the services of his personal truck for use by
Purchaser through the period of landscape and/or
landscape maintenance employment at a charge of Twenty-
five ($25.00) Dollars per day plus fuel expenses,
provided Ronald E. Beinhaur II is employed by Purchaser
and drives said vehicle. Also, Ronald E. Beinhaur II
shall offer the services of his personal truck and plow
for the winter 1992-1993 season for snow removal at an
16
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hourly charg~ of Thirty ($30.00) Dollars, drivers wages
included, so long as Ronald E. Beinhaur II is employed by
Purchaser and drives said vehicle.
The parties hereto have hereunto set their
hands and s~als the day and date first written above.
WITNESS:
PURCHASER:
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Linwood B. Phillips II
Yhv~_!3 ~
Marie B. Phillips
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SELLERS:
~ac:-~A~
Ronald E. Beinhaur
(1;/rh'A; z'b<d/~.
!~t, ,/lL~ ;:' <-J
Yv ne M. Beinhaur
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ADDENDUM
THIS ADDENDUM, made as of this 12th day of August, 1992,
by and between Ronald E. Beinhaur and Yvonne M. Beinhaur of 401
Rutherford Road, Dauphin County, Pennsylvania and Linwood B.
Phillips III and Marie B. Phillips of 1530 Centerville Road,
Newville, Cumberland County, Pennsylvania.
RECITALS
WHEREAS, the parties hereto executed an Agreement on July
28, 1992 (the "Agreement"); and ./'
WHEREAS, the partiE!E; desire to amend the said Agreement.
WITNESSETH
NOW, THEREFORE, the parties hereto, INTENDING TO BE
LEGALLY BOUND, hereby agree as follows:
1. Recitals. The Recitals set forth above are
incorporated herein by reference and are made a part hereof.
2. Amendment. The parties hereto desire to amend
paragraph 4 of the Agreement as follows:
4. Closina Date. Closing date shall be on or
before September 30, 1992, unless agreed to
otherwise in writing by the parties hereto.
3. Ratification. The parties hereto do hereby ratify
and confirm the remainder of the Agreement as set forth therein.
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THE PARTIES HERETO, have hereunto set their hands and
seals the day and date first mentioned above.
WITNESS:
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Linwood B. Phillips III
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Marie B. Phillips
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Ronald E. Beinhaur- .
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Yv ' ne M. Beinhaur
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EXHIBIT "B"
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JUL Y 1 0, 1 992
D. W. KIRCHER
ROADWAY SERVICES INC.
1077 GORGE BLVD
PO BOX 88
AKRON OH 44309-0088
DEAR MR. KIRCHER:
THIS LETTER IS IN RESPONSE TO YOUR REQUEST FOR WRITTEN VERIFICATION
REGARDING OUR PURCHASE OF AN ESTABLISHED LANDSCAPING BUSINESS.
T~IS BUSINESS HAS EXISTED AS A SOLE PROPRIETORSHIP SINCE JANUARY OF
1980. THE BUSINESS IS ACTIVE PRIMARILY IN COMMERCIAL LANDSCAPE
MAINTENANCE AND ALSO OFFERS LANDSCAPE DESIGN AND INSTALLATION SERVICES.
THE CUSTOMERS OF THIS BUSINESS COME PRIMARILY FROM THE GREATER HARRISBURG
AREA CORPORATE AND BUSINESS COMMUNITY. SERVICES INCLUDE LAWN CARE, TREE
AND SHRUBBERY MAINTENANCE, SPRAYING AND OTHER SPECIALTY SERVICES AS
REQUIRED OR REQUESTED.
./'
THZ YEARLY NE~ PROCEEDS FOR THIS EXISTING BUSINESS IS IN THE GENZRAL
AMOUNT OF $95,000.000 TO $125,000.000. THE LAWN CARE CONTRACTS ?OR
THIS YEAR (1992) ARE NOT LESS THAN $103,000.00. THIS AMOUNT DOES NOT
INCLUDE THE CONTRACTS RECEIVED FOR THE SPECIALTY SERVIC8S THA7 BECOME
AVAILABLE IN THE FALL.
\~E HAVE DONE SOME "EXTENSIVE" RESEARCH ON THE COST AND FEASIBILITY FOn
A NEW LANDSCAPING BUSINESS VERSES AN ESTABLISHED LANDSCAPING BUSINESS
IN CARLISLE AND SURROUNDING COMMUNITIES.
,
WE CHECKED PRICES FOR NEW EQUIPMENT. THE COST FOR THE BARE NECESSITIES
WERE NOT WHAT WE HAD EXPECTED. MOST TRACTOR DEALERS WERE WITHIN THE
GENERAL PRIC~ RANGE OF $114,500.00. THESE PRICES DID NOT INCLUDE
INSURANCE, OFFICE SUPPLIES, OFFICE FURNITURE, WORD PROCESSOR, PHONES,
SHOVELS, RAKES, EXTRA SHOP INVENTORY, REPLACEMENT PARTS, PAYROLL, AND
MANY MORE "START UP" EXPANSES BUT "MOST" IMPORTANT: WORKING CONTRACTS!!
ALL OF THIS EQUIPMENT WE HAVE BEml :>RICING WON'T CUT A BLADE OF GRASS
UNLESS THE CONTRACTS ARE SIGNED. WE FEEL THAT COMMUTATION FOR THIS
ESTABLISHED LANDSCAPING BUSINESS IS REASONABLE. CONSIDERING OUR PREVIOUS
DISCOVERY, ESPECIALLY ON WORKING CONTRACTS, THE CHOICE OF A NEW BUSINESS
VERSES AN ESTABLISHED BUSINESS IS OBVIOUS.
THE RESEARCH THAT WE HAVE DONE ON THE ESTABLISHED BUSINESS IS ON THE
NEXT PAGE. PLEASE NOTE THAT THE CASH PRICE IS VERY COMPARABLE WITH
THE AMOUNTS IN CONTRACTS (LISTED ABOVE) AND ALSO THE EXTENSIVE SHOP
AND OFFICE EQUIPMENT INCLUDED IN THE "PACKAGE DEAL".
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PAGE 2.
THE CASH PRICE OF $150.000.00 INCLUDBS A VERY NICE "PACKAGE DEAL".
A FULL SERVICE INVENTORY INCLUDING MAN Y EXTRAS.
LARGE OPERATING EQUIPMENT: FIVE - HEAVY DUTY TRUCKS, TRAILERS, WATERING
TANKS, WATER SPRAYER, LIQUID FERTILIZER STORAGE TANK, RIDER MOWERS,
WALKER MOWERS, COMMERCIAL ROTARY MOWERS, AND MORE...
SHOP EQUIPMENT: WELDING TABLE, 60 & 24 DRAWER ORGANIZER (FULL), TOOL
BOX, SET OF WRENCHES, SOCKET SETS, TAP & DIE SET, ARC WELDER W/ACCESS,
DRILL PRESS, CAR RAMPS, MOWER REPAIR TOOLS, PRECISION TOOLS, ETC...
SMALL OPERATING EQUIPMENT: POWER SHEARS, POWER BLOWERS, ROTOTILLER,
SPINTRIMMERS, POWER RAKES, LAWN ROLLER, WHEEL BARRELS, SPREADERS, HAND
SPRAYERS, COMMERCIAL FUEL CANS, SHOVELS, RAKES, ZAPPAS, POLE PRUNERS,
AXES, LOPPERS, BOW SAWS, PICKS, HAND SHEARS, DIGGING IRON, ETC...
SHOP REPLACEMENT PARTS: BELTS, CARB KITS, CLEVIS PINS, ROLL PINS,
ELECTRIC TERMINALS, SPRAYER PARTS, ETC...
CHEMICAL EQUIPMENT: FERTILIZERS, WEED CONTROLS, SOIL TESTING, S?pL
CONDITIONERS, ICE MELTING COMPOUND, ETC...
OFFICE EQUIPMENT: DESKS W/ATTACHMENTS, CHAIRS, CONFERENCE TABLE, LANIER
WORD PROCESSOR W/ACCESSORIES, DRAWING TABLES, OFFICE FURNITURE, LANDSCAPE
REFERENCE MATERIALS, OFFICE SUPPLIES, FILING CABINETS, PHONES, ANSWERING
MACHINE, REFRIGERATOR, AND MUCH MORE...
OUR PERSONAL FEELING ABOUT THIS WHOLE SITUATION HAS BEEN DERANGED.
OUR LIVES HAVE BEEN DISRUPTED AND VERY FRUSTRATED. WE FEEL THAT THIS
ESTABLISHED BUSINESS WILL PUT OUR "NOT SO PRODUCTIVE" LIVES BACK TO
A LIFE STYLE THAT WE WERE STRIPPED OF THREE YEARS AGO.
THE ACTIVE AND PRODUCTIVE TIME WE HAVE LEFT COULD BE BENEFICIAL TO OUR
CHILDREN AND ALSO TO THE COMMUNITY.
WE HOPE THAT THIS PRESENTATION HAS HELPED YOU RECOGNIZE THE IMPORTANCE
OF THIS MATTER. WE FEEL VERY STRONGLY ABOUT HAVING A SECOND CHANCE
AT GETTING OUR LIFE BACK TO A NORM.
IF YOU HAVE ANY QUESTIONS, PLEASE FEEL FREE TO CALL. WE WILL BE ANXIOUS
TO KNOW THE OUTCOME OF YOUR DECISION.
SINCERELY,
~.-<-., ~ ll.- ~&'
LINWOOD B. PHILLIP , III &
MARIE B. PHILLIPS
1530 CENTERVILE ROAD
NEWVILLE, PA 17241
(717) 486-3362 (UNLISTED)
CC: FILE
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EXHIBIT "C"
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RON BEINHAUR
LANDSCAPING
We're everything
your lawn needs
61300LDJONESTOWNRD.. HARRISBURG,PA 17112
(717) 652-6028
Dear Mr. Beinhaur:
I
Linn & Marie Phillips
and/or my assigns agree that
the materials received concerning the Ron Beinhaur Landscaping Co.
is confidential.
The owners prefer to maintain a confidential relationship with any
prospective buyer. Buyer and/or assigns agree not to copy or transmit
to any other party any materials concerning said property.
It is expressly understood by all parties that Linn & Marie Phillips
,
and/or his assigns are acti~g as principals seeking investment for
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any other purpose.
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. _ Wltness
Linn Phillips
Marie Phillips
Print Name
~7/12
Date
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RONALD E. BEINHAUR and
YVONNE M, BEINHAUR,
PLAINTIFFS
v,
LINWOOD B. PHilLIPS, III, and
MARIE B. PHilLIPS,
DEFENDANTS
AND NOW, this
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
00-2099 CIVil TERM
ORDER OF COURT
21 day of May, 2000, the within hearing shall
continue at 11 :30 a,m., Monday, June 5, 2000.
John R Beinhaur, Esquire
For Plaintiffs
Robert Frey, Esquire
For Defendants
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RONALD E. BEINHAUR and
YVONNE M. BEINHAUR,
Plaintiffs
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
v.
LINWOOD B. PHILLIPS, III, and
MARIE B. PHILLIPS,
Defendants
00-2099 CIVIL TERM
ORDER OF COURT
AND NOW, this ,,,,., day of May, 2000, upon request of the Plaintiffs' counsel and
consent of Defendants' counsel and of this Court, the hearing scheduled for Wednesday, May 17,
2000, at 2:30 p.m. is hereby re-scheduled for 9:30 a.m., Thursday, May 25, 2000, ip. Courtroom
Number 2, Cumberland County Courthouse; Carlisle, Pennsylvania.
Edgar B, Bay ey, 1.
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NOTE
DatEH September 25, 1992
Harrisburg, Pennsylvania
POR VALUE RECEIVED, LI~OOD B. PHILLIFS, III and MARIE B.
PHILLIPS of 1530 Centerville Road, Newville, Pennsylvania t7241
(hereinafter collectively "Maker"), promise to pay to the order of
RonaldE. Beinhaur and Yvonne M. Beinhaur of 40t Rutherford Road,
Harrlabu.r<J,p~mnaylvania 17101 ("Payee"), the prinoipal sum of
Forty-five Thousand ($45,000.00) DOllars, lawful money of the
United States of America, together with interest from the date of
thiS Note, at the rate and on the terms set forth below, as
followa;
1. (a) Maker shall pay monthly installments of interest
and principal in t.he amount of Five Hundred Seventy and 04/100
($570.04) Dollars, without set-off or deduction, on the first day
of each calendar month beginning November 1, t992, through October
1, 2002, on which date the entire unpaid balance of principal of
this Note and all interest accrued thereon and all other sums
payable hereunder shall be due and payable in full.
(b) Prior to maturity, the per annum interest rate,
'on the whole of the principal sum remaining from time to time
unpaid shall be definite and certain at the rate of nine (9\)
percent based upon a ten (10) year amortization schedule.
(0) Interest shall be calculated on a 360-day year
for the actual munber of days elapsed in each calendar year by
multiplying the actual number of 'days the debt is outstanding in
each calendar year, by the rate of interest computed as aforesaid,
and dividing the product thereof by 360.
2. The principal and interest shall be 'payable at the
address of the Fayee as set forth above, or at such other place as
Payee, from time to time, may designate in writing.
3., Payment of this Note is secured by a Security
Agreement from Maker to Payee dated the same date as this Note
(reterred to as the "Security l>.greement").
4. payment of this Note is secured by the following, in
addition to the Security Agreement:
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. . (a) A :first security interest in all furniture,
fixtures, I1Iachinery, appliances and equiplllent used or useful in the
operation of Haker' a business; and
(b) A guaranty of Maker' a obligations by Linwood ~.
Phillips, I n and Marie ij. Phillips. .' . '.
. ',5. All the agreements,conditions, COVenants, provisions'
and stipulations contained in the Security Agreement and auch other
security documents (hereinafter: collectively referred to as the
"Security Instruments"), which are to be leept and performed by
Maker, are hereby made a part of this Note to the aame extent and
with the same force and effect as if they were fully set f"rth
herein, and Maker covenants ,and ,agrees to keep and perform them or
c.use them to be kept and perfo~ed, strictly in accordance with
their terms. '
6. ,If any payment of. any amount due: hereunder or any
other payment is not paid within five (5) days when due under the
terms of this Note, or of the Security Inatruments ,then there .
ahallalso be immediately due and, payable a late charge ~t the rate
of five ($.OS) cents for each dollar of such delinquent payment.
" , 7.. . It is further undlil;atood,. however," that should any
d$fault ,be made in the payment of this obligation when due payee
may also recoVer all costs of suit and other expenses in connection
with it, together with a reasonable Cl;ttorneys t commission' for
coll~ction, (but ill any event not less than Five Thousand
($5,000.00) ) Dollars, together, with inte.r:eat on any judgment
obtained by Payee at the legal rate of interest, including interest
at the legal rate from and after the date ot any execution,
judicial or foreclosure sale until actual payment is made,to,payee
of the full amount due Payee.
e. HAltER llEREBY lRREVOCABLY AUTHORIZES l>.ND E!WOWERS l>.NY
ATTOMEY OR THIl: PROTllONOTAR'Y OR CLERK OF l>.NY COURT' IN THE
COMMONWEALTH OF PENNSYLVl>.NIA, OR ELSEWHERE, TO APPEAR FOR MAKER AT
ANY TIME AFTER DEFAULT HEREUNDER IN ANY .ACTION BROUGHT AGAINST
M.l\l{ER ON THIS NOTE AT THE SUIT OF PAYEE, WITH OR WITHOUT
DECLARATION'. FILED, AS OF l>.Ny. TERM, TO WAIVE THE, ISSUANCE l>.ND
SERVICE OP PROCESS AND THEREIN TO CONFESS OR ENTER JUDGMENT AGAINST
MAKBR FOR THE ENTIRE UNPAID PRINCIPAL OF THIS NOTi:: AND ALL OTHER
SOMS PAID BY PAYEE TO OR ON BEHALF OF MAKER PURSUANT TO THE TERMS
0' THIS NOTE OR THE MORTGAGE,l>.ND ALL ARREARAGES OF INTEREST
TlIB~ON, TOGETHER WITH COSTS OF. SUIT, A REASONABLE ATTORNEYS'
COMMISSION FOR COLLECTION (BUT ,IN ANY EVENT NOT LESS THAN FIVE
'l'HOVSAND ($5,000.00) DOLLARS) AND TO ASSESS DAMAGES FOR THE AMOUNT
DUE; l>.NO' FOR SO DOING THIS NOTE OR A COpy HEREOF WRlnED B1!
AfPIDAVIT SHALL Be SUFFICIENT WARRANT.
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9. The authority granted herein to confesliI judg11lent
shall not ~e e~hausted ~y any exercise thereof but shall continue
from time to t~e and at all times until payment in full of all of
the amounts due hereunder.
10. The remedies ofPllyee as provided herein, or in the
Mortgage, and the warrants contained herein or attached hereto or
contained in the Mortgage shall be cumulative and concurrent, and
may be puraued singly, successively, or together at the sole
discretion of Payee, and may be exercised as often as occasion
therefor shall occur, and the failure to exercise any such right or
remedy shall in no event be construed as a waiver or release
thereof. .
. '.' 'n. 'M4ker hereby waives and releases an errors, defects
and imperfecticlns in any proceeding instituted by Payee under the
terms of this Note, of any warrant attaohed hereto, or of the
Security Instruments, as well as all benefit that might accrue to
Maker by virtue of any present 6r future laws of exemption which
may relate to property or seourities referenced in the Security
Instruments, or any other property, real or personal, or any part
of the proceeds arising from any sale of any such property, from
attacbment, levy, or sale under execution, or providing for any
stay of egecution to be issued on any judgment recovered on this
Note and any warrant contained herein or attached hereto or in any
ac;:tion to eg,ecute any judgment obtairled, exemption from civil
'p~oce88, or extension of time for payment; and Maker agrees that
any real estate that may be levied upon pllrsuant to a judgment
obtained by virtue hereof, on any wri t of execution issued thereon,
may be sold upon any such writ in whole or in part in any order
des1red: by Payee. .
12. Maker and all endorsers, sureties and ,guarantors
hereby jointly and severally waive presentment for payment, demand,
nptice of demand, notice of nonpayment or dishonor, protest and
notice of protest of this Note, and all other notices in conneotion
with the delivery, acceptance, performance, default, or enforcement
of the payment of this Note, and they agree that the liability of
each of them shall be unconditional, without regard to the
liability of any other party, and shall not be affected in any
manner by any indulgence, extension of time, renewal, waiver or
mpd.!fication granted or consented to by Payee. Maker and all
endor8e~s, sureties, and guarantors consent to any and, ,all
extensions of time, renewals, waivers, or modifications that may be
granted by Payee with respect to the payment or other provisions of
tp.!s Note, and to release of the collateral or any part of it, with
Or Without. substitution, and agree that additional makers,
endorset's, gulilrantors, or sure'ties may become parties to it wit.hout
notice to them or affecting their liability under this Note.
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13. If any provision of this Note is held to be invalid
or unenforceable by a Court of competent jurisdiction, the other
prOvisions of this Note shall remain in full force and effect and
shall be construed liberally in favor of Payee in order to
effectuate the provisions of this Note. In no event shall the rate
i of interest payable under this Note exceed the maximum rate of
interest permitted to be charged by the applicable law (including
i the choice of law rules) and any interest paid in excess of t)'le
permitted rate shall be refunded to Maker. That refund shall be
made by application of the excessive amount of intereat paid
agatnst any sums outstanding and shall be applied in such order as
Payee may determine. If the excessive amount of interest paid
el(coods th(l Ilums outstanding, the portion exceeding the sums
outstanding Ilhall be refunded in cash by Payee. Any crediting or
refund shall not cure or 'Waive any default by Maker under this
Nota. Maker agrees, however, that in determining whether or not
any interest payable under this Note exceeds the highest rate
permitted by law, or any non-principal payment inCluding, witrout
limitAtion, prepAyment fees and late charges shall be deemed to the
extent permitted by law, to be an expense, fee, premium or penalty
rather than interest.
14. (a) Payee shall not exercise any right or remedy
prOvided for in this Note because of any default of Maker unless
Payee shall have first given Maker written notice of the default
specifying the nature and extent of it, and (i) in the event of a
monetary default, Maker shall have failed to pay the outstanding
sums within a period of five (5) calendar days after the date of
Payee's notice of default, or (ii) in the event of a non-monetary
defAult, Maker shall have failed within a period of ten (10) days
after the date of Payee's notice of default to begin correcting the
non~monetary default, and to proceed diligently with its efforts to
cure the default until it shall be fully cured within no more than
thirty (30) days after the date of Payee's notice.
(b) However, Payee shall not be required to give
any such notice or to allow any part of the grace period if Maker
shall have filed a petition in bankruptcy Or for reorganization or
a bill in equity or otherwise initiated proceedings for the
appointment of a receiver of Maker's assets, or if Maker shall have
made an assignment for the benefit of creditors, or if a receiver
or trustee 1s appointed for Maker and the appointment or
receivership is not terminated within si~ty (60) days.
(0) Notwithstanding anything to the contrary in'
this Note, (i) Payee shall not be required to give any such notice
or to allow any grace period more than two (2) times in any twelve-
month periOd with respect to substantially similar events of
default; (ii) Payee shall be permitted to make any payment which
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Maker should have, paid, or perform any other act which Maker should
have performed, and may elect not to regard Maker's non-payment or
non-performance as a default, without giving any such notice or
allowing any part of the grace period if Payee determines, in its
sole judgment, that its security may be threatened or impaired by
reason of such a default; or Payee may elect to regard Maker's non-
payment or non-performance as a default and give the requisite
notice and allow the requisite grace period; (iii) if any other
provision of this Note contains a grace period. the grace period
contained in this Paragraph' shall be deemed to run concurrently
with the grace period contained in the other provisions of this
Note~ and (iv) Payee shall not be required to give any 8uchnotice
or to allow any grace period if the principal, interest and all
other sums evidenced by this Note or secured by the Mortg~ge are
not repaid in full on the maturity date of this Note.
15. Maker shall have the right to prepay, this
obligation or any portion hereof, without penalty on any payment
due date. If this obligation is prepaid entirely on any date other
than a pa.yment due date, then in that event interest shall 'be
calculated on a prorata basis to and including the date of payment
and shall be due and payable as of the date of prepayment.
16. Payee shall not be deemed, by any act of omission or
commission, to have waived any of 'its rights or remedies under this
Note unless such waiver is in writing and signed by Payee, and then
only to the extent specifically set forth in the writing. A waiver
on one event shall not be construed as continuing or as a bar to or
waiver of any right or remedy to a subsequent event.
17. This instrument shall be governed by and construed
according to the laws of the Commonwealth of pennsylvania.
18. Whenever used, the singular number shall include the
plural, the plural the singular, the use of any gender shall be
applicable to all genders, and the words "Payee" and "Maker" shall
be deemed to include the respective heirs, pe~sonal
representatives, successors and assigns of Payee and Maker. If
Maker consists of more than one (1) person, corporation or other
entity, the obligations and liabilities of such persons,
corporations or other entities under this Note ahall be joint and
several, and the work "Maker" shall mean all or sOlUe or any of
them.
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19. This Note may not be changed or terminated orally.
IN WITNESS WHEREOF, Maker, INTENDING TO BE LEGALLY BOUND
HEREBY, has caused this Note to be executed, by its duly authorized
officers and has caused its seal to be hereunto affixed, and duly
attested, the day and year first above written.
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Marie B.
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RON BEINHAUR
LANDSCAPING
We're everything
your lawn needs
61300LDJONESTOWN RD" HARRISBURG, PA 17112
(717) 652-6028
Dear Mr. Beinhaur:
Linn & Marie Phillips
and/or my assigns agree that
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the materials received concerning the Ron Beinhaur Landscaping Co.
is confidential.
The owners prefer to maintain a confidential relationship with any
prospective buyer. Buyer and/or assigns agree not to copy or transmit
to any other party any materials concerning said property.
It is expressly understood by all parties that Linn & Marie Phill~
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and/or his assigns are acting as principals seeking investment for
f~~ o~w~1l~;~nd not
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Linn Phillips
Marie Phillips
Print Name
~7/12
Date
PLAINTIFF'S
EXHIBIT !
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JULY 10, 1992
O. W. KIRCHER
ROADWAY SERVICES INC.
1077 GORGE BLVD
POBOX 88
AKRON OH 44309-0088
DEAR MR. KIRCHER:
THIS LETTER IS IN RESPONSE TO YOUR REQUEST FOR WRITTEN VERIFICATION
REGARDING OUR PURCHASE OF AN ESTABLISHED LANDSCAPING BUSINESS.
T~IS BUSINESS HAS EXISTED AS A SOLE PROPRIETORSHIP SINCE JANUARY OF
1980. THE BUSINESS IS ACTIVE PRIMARILY IN COMMERCIAL LANDSCAPE
MAINTENANCE AND ALSO OFFERS LANDSCAPE DESIGN AND INSTALLATION SERVICES.
THE CUSTOMERS OF THIS BUSINESS COME PRIMARILY FROM THE GREATER HARRISBURG
AREA CORPORATE AND BUSINESS COMMUNITY. SERVICES INCLUDE LAWN CARE, TREE
AND SHRUBBERY MAINTENANCE, SPRAYING AND OTHER SPECIALTY SERVICES AS
REQUIRED OR REQUESTED.
./
TH~ YEARLY NE~ PROCEEDS FOR THIS EXISTING BUSINESS IS IN THE GENZRAL
AMOUNT OF $95,000.000 TO $125,000.000.' THE LAWN CARE CONTRAC~S ?OR
THIG YEAR (1992) ARE NOT LESS THAN $103,000.00. THIS AMOUN~ DOES NOT
INCLUDE THE CON~RACTS RECEIVED FOR THE SPECIALTY SERVIC?S T~A7 BECOME
AVAILABLE IN THE FALL.
WE HAVE DONE SOME "EXTENSIVE" RESEARCH ON THE COST AND FEASIBILITY Fon
A NEW LANDSCAPING BUSINESS VERSES AN ESTABLISHED LANDSCAPING BUSINESS
IN CARLISLE AND SURROUNDING COMMUNITIES.
WE CHECKED PRICES FOR NEW EQUIPMENT. THE COST FOR THE BARE NECESSITIES
WERE NOT WHAT WE HAD EXPECTED. MOST TRACTOR DEALERS WERE WITHIN THE
GENERAL PRIC~ RANGE OF $114,500.00. THESE PRICES DID NOT INCLUDE
INSURANCE, OFFICE SUPPLIES, OFFICE FURNITURE, WORD PROCESSOR, PHONES,
SHOVELS, RAKES, EXTRA SHOP INVENTORY, REPLACEMENT PARTS, PAYROLL, AND
MANY MORE "START UP" EXPANSES BUT "MOST" IMPORTANT: WORKING CONTRACTS!!
ALL OF THIS EQUIPMENT WE HAVE BErm :>RICING WON'T CUT A BLADE OF GRASS
UNLESS THE CONTRACTS ARE SIGNED. WE FEEL THAT COMMUTATION FOR THIS
ESTABLISHED LANDSCAPING BUSINESS IS REASONABLE. CONSIDERING OUR PREVIOUS
DISCOVERY, ESPECIALLY ON WORKING CONTRACTS, THE CHOICE OF A NEW BUSINESS
VERSES AN ESTABLISHED BUSINESS IS OBVIOUS.
THE RESEARCH THAT WE HAVE DONE ON THE ESTABLISHED BUSINESS IS ON ~HE
NEXT PAGE. PLEASE NOTE THAT THE CASH PRICE IS VERY COMPARABLE WITH
THE AMOUNTS IN CONTRACTS (LISTED ABOVE) AND ALSO THE EXTENSIVE SHOP
AND OFFICE EQUIPMENT INCLUDED IN THE "PACKAGE DEAL".
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THE CASH PRICE OF $150.000.00 INCLUDES A VERY NICE "PACKAGE DEAL".
A FULL SERVICE INVENTORY INCLUDING MAN Y EXTRAS.
LARGE OPERATING EQUIPMENT: FIVE - HEAVY DUTY TRUCKS, TRAILERS, WATERING
TANKS, WATER SPRAYER, LIQUID FERTILIZER STORAGE TANK, RIDER MOWERS,
WALKER MOWERS, COMMERCIAL ROTARY MOWERS, AND MORE...
SHOP EQUIPMENT: WELDING TABLE, 60 & 24 DRAWER ORGANIZER (FULL), TOOL
BOX, SET OF WRENCHES, SOCKET SETS, TAP & DIE SET, ARC WELDER W/ACCESS,
DRILL PRESS, CAR RAMPS, MOWER REPAIR TOOLS, PRECISION TOOLS, ETC...
SMALL OPERATING EQUIPMENT: POWER SHEARS, POWER BLOWERS, ROTOTILLER,
SPINTRIMMERS, POWER RAKES, LAWN ROLLER, WHEEL BARRELS, SPREADERS, HAND
SPRAYERS, COMMERCIAL FUEL CANS, SHOVELS, RAKES, ZAPPAS, POLE PRUNERS,
AXES, LOPPERS, BOW SAWS, PICKS, HAND SHEARS, DIGGING IRON, ETC...
SHOP REPLACEMENT PARTS: BELTS, CARB KITS, CLEVIS PINS, ROLL PINS,
ELECTRIC TERMINALS, SPRAYER PARTS, ETC...
CHEMICAL EQUIPMENT: FERTILIZERS, WEED CONTROLS, SOIL TESTING, S?}L
CONDITIONERS, ICE MELTING COMPOUND, ETC...
OFFICE EQUIPMENT: DESKS W/ATTACHMENTS, CHAIRS, CONFERENCE TABLE, LANIER
WORD PROCESSOR W/ACCESSORIES, DRAWING TABLES, OFFICE FURNITURE, LANDSCAPE
REFERENCE MATERIALS, OFFICE SUPPLIES, FILING CABINETS, PHONES, ANSWERING
MACHINE, REFRIGERATOR, AND MUCH MORE...
OUR PERSONAL FEELING ABOUT THIS WHOLE SITUATION HAS BEEN DERANGED.
OUR LIVES HAVE BEEN DISRUPTED AND VERY FRUSTRATED. WE FEEL THAT THIS
ESTABLISHED BUSINESS WILL PUT OUR "NOT SO PRODUCTIVE" LIVES BACK TO
A LIFE STYLE THAT WE WERE STRIPPED OF THREE YEARS AGO.
THE ACTIVE AND PRODUCTIVE TIME WE HAVE LEFT COULD BE BENEFICIAL TO OUR
CHILDREN AND ALSO TO THE COMMUNITY.
WE HOPE THAT THIS PRESENTATION HAS HELPED YOU RECOGNIZE THE IMPORTANCE
OF THIS MATTER. WE FEEL VERY STRONGLY ABOUT HAVING A SECOND CHANCE
AT GETTING OUR LIFE BACK TO A NORM.
IF YOU HAVE ANY QUESTIONS, PLEASE FEEL FREE TO CALL. WE WILL BE ANXIOUS
TO KNOW THE OUTCOME OF YOUR DECISION.
SINCERELY,
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LINWOOD B. PHILLIP , III &
MARIE B. PHILLIPS
1530 CENTERVILE ROAD
NEWVILLE, PA 17241
(717) 486-3362 (UNLISTED)
CC: FILE
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RONALD E. BEINHAUR and
YVONNE M. BEINHAUR,
PLAINTIFFS
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
LINWOOD B, PHilLIPS, III, and
MARIE B. PHilLIPS,
DEFENDANTS
00-2099 CIVil TERM
ORDER OF COURT
AND NOW, this --.1l---day of May, 2000, upon consideration of the
within Petition, a hearing is scheduled for 2:30 p.m., Wednesday, May 17, 2000, in
Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania.
Defendant shall forthwith serve this order of plaintiffs' counsel.
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Ronald E. Beinhaur and
Yvonne M. Beinhaur
Plaintiffs
v.
:IN THE COURT OF COMMON PLEAS
:CUMBERLAND COUNTY, PENNSYLVANIA
:NO. 00-2099 CIVIL TERM
:CIVIL ACTION . LAW
Linwood B. Phillips III and
Marie B. Phillips
Defendants
PETITION TO STRIKE JUDGMENT
REQUEST FOR PROMPT HEARING
I hereby certify that I did not voluntarily, intelligently and knowingly give up my right to
notice and hearing prior the the entry of judgment. I petition the court to strike the judgment on this
ground and request a prompt hearing on this issue. See Answer and New Matter filed herewith.
I verify that the statements made in this Request for Hearing are true and correct. I
understand that false statements herein, are made subject to the penalties of 18 Pa.C.S. S 4904
relating to unsworn falsifications to authorities.
Notice of the hearing should be given to me at
Frey and Tiley
5 South Hanover Street
Carlisle, PA 17013
717-243-5838
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Dated: . ,,7 lr. 2000
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Linwood B. Phillips, III, Defendant
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Ronald E. Beinhaur and
Yvonne M. Beinhaur
Plaintiffs
v.
:IN THE COURT OF COMMON PLEAS
:CUMBERLANCOUNTY,PENNSYL VANIA
:NO. 00-2099 CIVIL TERM
:CIVIL ACTION - LAW
Linwood B. Phillips III and
Marie B. Phillips :
Defendants
To: Ronald E. Beinhaur
Yvonee M. Beinhaur
You are hereby notified to file a written response to J\1e.el,lclQsed New Matter within
, ,',,. I -,' < .
twenty (20) days from service hereof or a judgment may erite'red 'against you.
~SLJ
Robert G, Frey r
Attorney for Defendant
5 South Hanover Street
Carlisle, Pennsylvania 17013
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Ronald E. Beinhanr and
Yvonne M. Beinhaur
Plain tiffs
:IN THE COURT OF COMMON PLEAS
:CUMBERLANCOUNTY,PENNSYL VANIA
:NO. 00-2099 CIVIL TERM
:CIVIL ACTION - LAW
v.
Linwood B. Phillips III and
Marie B. Phillips
Defendants
ANSWER TO COMPLAINT FOR CONFESSION OF JUDGMENT
AND NOW COMES Linwood B, Phillips, III, one of the defendants herein, by and
through his attorneys Frey and Tiley and answers the Complaint of Plaintiffs as follows:
1, Admitted.
2. Admitted in part denied in part. It is admitted that the address of Linwood B.
Phillips, III is 1530 Centerville Road, Newville, Cumberland County, Pennsylvania, 17241. It is
denied that Marie B. Phillips resides at that address. Linwood B. Phillips, III and Marie B.
Phillips are divorced and Marie B. Phillips no longer lives at 1530 Centerville Road, Newville,
Pennsylvania, By Marriage Settlement Agreement pursuant to said divorce, all of the rights and
responsibilities of Marie B. Phillips were assigned to Linwood B, Phillips, III, Defendant herein,
3. Admitted,
4, Admitted in part denied in part It is admitted that Defendants have failed to make
any payments under the note since November 21, 1997. Itis denied that failure to make payment
is a default under the agreement for the reason that Plaintiffs materially misled Defendants as to the
true value of the property being purchased, Plaintiffs fraudulently discouraged to obtain advice
concerning the advisability of the transaction or the value of the property being purchased, and
Plaintiffs fraudulently induced Defendants to sign the Installment Note based on the
misrepresentations of the Plaintiffs. Defendants further believe no default occurred as the Plaintiffs
were adequately compensated for the full value of the property delivered to him.
5. Denied. The allegation contained in Paragraph 5 are within the exclusive
knowledge of Plaintiffs, After reasonable investigation, Defendants are unable to determine the
accuracy of the allegation. By way of further answer, Defendants are not aware of any
assignment
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6, Denied. The allegation contained in Paragraph 5 are within the exclusive
knowledge of Plaintiffs. After reasonable investigation, Defendants are unable to determine the
accuracy of the allegation, By way of further answer, Defendants m;e unaware of the entry of
judgment in any other jurisdiction.
7.Admitted in part denied in part. It is admitted that the installment note contained language
empowering the Prothonotary, Clerk, or Attorney to confess judgment against the defendants, It is
denied that said provision concerning the confession of judgment is valid for the reason that
Defendants were misled as to the value of the property purchased and fraudulently induced into
signing the installment note,
8. Denied. It is denied that any further amounts are owed to Plaintiffs. As Defendants
informed Plaintiffs in 1997, he believes the Plaintiffs have been more than adequately compensated
for the value of the property transferred and that they were misled as to the value of the property
and fraudulently induced into signing the installment note obligating payment.
NEW MATTER.
9, Paragraphs 1 through 8 are incorporated heteiri by reference.
10, Among the property transferred to Defendants by agreement in November 1992
were Plaintiffs' rights under contracts for service for the following year and the "good will" of
Plaintiffs' business.
11, Plaintiffs informed Defendants that these contracts would provide significant
income to him, thereby justifying the purchase price.
12, A significant number of these contracts were canceled prior to the beginning of the
1993 lawn care season for the reason that the customers received poor service in the prior year
from Plaintiffs.
13, Plaintiffs knew or should have known of the customer dissatisfaction, fraudulently
failed to disclose this information, and fraudulently implied that Defendants could expect to receive
the same amount of income as Plaintiffs had received in 1992. .
14. As a result of the contract cancellation, Defendants suffered a loss during their first
year in business, This loss was the result of the fraudulent overstatement by Plaintiffs of the
values of the service contracts and good will of the business,
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15, Defendants had never previously purchased a business, were not afforded the
opportunity to obtain advice and counsel prior to signing the installment note, and were induced by
Plaintiffs to allow their attorney to prepare all of the documents without review by any attorney
selected by Defendants.
16. The misrepresentations by Plaintiffs as to the value ofthe property, service
contracts and good will being transferred were made knowingly and fraudulently by Plaintiffs and
materially overstated the value to be transferred,
17. Defendants relied on the misrepresentations of Plaintiffs to their detriment
WHEREFORE Defendant Linwood B. Phillips, III requests the Honorable Court to enter
judgment in favor of Linwood B. Phillips, III, and against the Plaintiffs.
Frey and Tiley
Attorney for Defendants
-d.
Date: May <(S-
,2000
~ ~~ ~
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VERIFICATION
I, Linwood B, Phillips, III have read the foregoing document and hereby affirm and verify
that it is true and correct to the best of my personal knowledge, information and belief, I
understand that false statements made herein are subject to the penalties of 18 Pa, C. S. A. ~ 4904,
relating to unsworn falsification to authorities.
?sL-::" Q-.~ ~
Linwood B. Phillips, III
Date: May ''is , 2000
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
PRAECIPE FOR WRIT OF EXECUTION
Caption:
Plaintiffs
( X) Confessed Judgment
( ) Other
File No, 0.0.-20.99 Civil Term
Ronald E. Beinhaur and
Yvonne M. Beinhaur
Defendants
Amount Due
Interest
Atty's Comm
Costs
$28.115.70.
5,487.12
5 ,0.0.0. . 0.0.,
vs.
Linwood B. Phillips, III, and
Marie B. Phillips
TO THE PROTHONOTARY OF THE SAID COURT:
The undersigned hereby certifies that the below does not arise out of a retail installment sale, contract, or
account based on a confession of judgment, but if it does, it is based on the appropriate original proceeding filed
pursuant to Act 7 of 1966 as amended; and for real property pursuant to Act 6 of 1974 as amended.
Issue writ of execution in the above matter to the Sheriff of Cumberland County,
for debt, interest and costs, upon the following described property of the defendant(s)
All ppr~onRl propprty R~ RPt forth on thp RttRrhp~ Rxhihit "A".
PRAECIPE FOR ATTACHMENT EXECUTION
Issue writ of attachment to the Sheriff of C!-vW\ be~I'tll'1<d County, for debt, interest and
costs, as above, directing attachment against the above-named garnishee(s) for the following property (if real
estate, supply six copies of the description; supply four copies of lengthy personalty list)
All pn'iol\ol ~ro~-ert't as sd ~r+h 01'1 rU~ -rdhrChf'd E",tl-t,'bit "Aj.t6~p.I,.,f~
\OCo.~ct -at re'S;~I1f\C( o~ 1.-"I'IIAX'1C:ld 13. P~ill"fS, Ji.., '\~ EIIJc1t--;; Mill Ro.,&r/rsJ.e f)( 110/3.
and all other property of the defendant(s) in the possession, custody or control of the said garnishee(s).
o (Indicate) Index this writ against the garnishee(s) as a lis pendens against real estate of the
defendant(s) described in the attached exhibit.
Date
All,,! - q I ')..000
Signature:
Print Name:
Address:
~ "quin
Attorney for:
Telephone:
Supreme Court ID No,:
4650. Fritchey Street
Harrisburg, PA 1710.9
Plaintiffs
(717) 651-910.0.
55631
(over)
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Notes: If real property, supply six copies of description including improvements and an original and copy of
affidavit of ownership (PaRC.P. No. 3129).
If lengthy personalty list, supply four copies of list.
To index writ, file separate praecipe with writ.
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EXHIBIT "A"
L All personal property of Defendant(s), including but not limited to the attached list, located at:
(I) 1530 Centerville Road, Newville, PA 17241 (Defendant address)
(2) 93 Encks Mill Road, Carlisle, PA 17013 (Defendant's Father's address)
2. List Defendant's father Linwood B, Phillips, Jr., as garnishee for any of Defendant's property
located at father's residence,
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EXHIBIT "A" Page 2
Lynnwood Phillips
93 Encks Mill Road
Carlisle, PA 17013
1990 Paris 16' Trailor W/New Floor . . . . . . . . . . .
1990 Ford Tractor Model l720, W/Frnt End Ldr,Model 7108,
Ford Grader Box Model 700 . . . . .
ARPS Rake. . . . . . . .. . . . .
. .
Ford Bush Hog Model 951B . . . .
Trailor for ~prayer (Home Built) . . .
1972 Ford 500 ~take Body Truck
19B6 Chevy C-30 Dump Truck .
Cinder Spreader. . . . . . .
7' Myer Snow Plow (2 Spring)
5 BP Gilson Tiller . . .
Ortho Drop Spreader . . . . .
Pull Type Aerator . . . . .
280 Gallon Sprayer 1'1/8 BP Motor.
48" .Ex Mark Mower WINo Motor.
."
61" Seag Rider Mower W/Bagger.
48" Seag Mower W/Bagger .. . .. .
The Following Misc. Items. . . .
Large Word Prcc:essor
Metal Storage Trays W/Assorted Parts
Table Grinder
Drill Press
Bearing Press
Box of Assorted Chemicals
(2) 5 Gal. Gas Cans
. .
. . .
. .
. .
. . .
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. .
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.. . . .
. .
. . .
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. . .
. . .
. . .
. .
. . .
. .
. . .
. .
. . .
Large Hoe
(2) Large Alumin\llll Yard Rakes (1 Usable)
Battery Charger
Lincoln Welder I
H~Pti:o/~
Thatcher (5 UP)
.......
1738 brs, 4WD
.......
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. . .
. . .
. .
. . .
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. . . . .
. . . .
. . . .
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SHERIFF'S RETURN - GARNISHEE
CASE NO: 2000-02099 P
COMMONWEALTH OF PENNSLYVANIA
COUNTY OF CUMBERLAND
BEINHAUR RONALD E ET AL
VS
PHILLIPS LINWOOD B III ET AL
And now WILLIAM DIEHL
, Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly sworn according
to law, at 1405:00 Hours, on the 25th day of September, 2000, attached
as herein commanded all goods, chattels, rights, debts, credits, and
moneys of the within named DEFENDANT
PHILLIPS LINWOOD B III
, in the
hands, possession, or control of the within named Garnishee
LINWOOD B. PHILLIPS JR.
l530 CENTERVILLE RD.
NEWVILLE, PA 17241
Cumberland County, Pennsylvania, by handing to
LINWOOD B. PHILLIPS JR.
personally THREE true and attested copies of the within
WRIT OF EXECUTION
and made the contents thereof known to His .
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
So
answers:
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00/00/0000
By
R. Thomas Kline
Sheriff of Cumberland County
w!~~
Deputy S if
Sworn and subscribed to before me
this (, ~ day of {fl~
ci01X:J A.D.
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R. THOMAS KLINE
Sheriff
EDWARD L. SCHORPP
Solicitor
OFFICE OF THE SHERIFF
Ohe Courthouse Square
Carlisle, Pennsylvania 17013
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October 30, 2000 ~2:
Ronald E. & Yvonne M, Bei~
-vs- -0
Linwood B. Phillips, III )>~
No. 2000-2099 Civil Term =<
Property Claim Determination
Dear Sir
Reference is made to Property Claim dated October 19,2000 entered by
Linwood Phillips, Jr" and pertaining to Execution No. 2000-2099 Civil Term,
Ronald E. & Yvonne M. Beinhaur vs Linwood B. Phillips, III.
R. Thomas Kline, Sheriff, has determined that the claimant, Linwood
Phillips, Jr., in the abovementioned property claim, is prima facie the owner of the
property set forth therein,
So answers
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R. Thomas Kline, Sheriff
ByQCl~5~
Deputy She ff
cc: John R. Beinhaur, Atty for Pltff.
Linwood B. Phillips, III, Deft,
Robert G. Frey, Atty. for Claimant
,',' , ,--" ";',"'''''1'''',0'"'' '<" ,~"", ," , ~ """,'/ ""''':
RONNY R. ANDERSON
Chief Deputy
PATRICIA A. SHATTO
Real Estate Deputy
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NOTICE OF PROPERTY CLAIM
"Ron.ald..,EA,...B,einn.auI:..,and......",....".........,.....
Yvonne M. Beinhaur
In The Court of Common Pleas of
Cumberland County, Pennsylvania
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1530 Centerville Rd.
Newville, PA 17241
No. ,?.o,qo,-,29~,9, Ciyi,~""""" Tenn
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Writ of Execution
TO THE DEFENDANT AND ALL OTHER PARTIES IN INTEREST;
You are hereby notified that a property claim, a copy of which is attached hereto has been filed by
, , .Lj.n.WOP.G . PJ1iJ-J.ip,S, ,J.:r:, , , . , , . , , , , , claiming property listed therein. Unless an appraisal of the prop-
erty is requested within (10) days from the date of this notice, the sheriff without making an appraisal will accept the
value of the property set forth in the claim.
Date:. .Q<;:!:..,' ;1.,9", ,2,QO.o, , ,.,..",.
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cc:
John R. Beinhaur, Atty for Pltff
Linwood Phillips, III, defendant
Robert G. Frey, Atty for Claimant
Sheriff of Cumberland County
By .q~,~. .:s.~...""""",
Deputy
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PROPERTY CLAIM
In the Court of Common Pleas of
Cumberland County, Pennsylvania
Ronald E. Beinhaur
Yvonne M. Beinhaur
Writ No. 00-2099
vs.
Linwood B. Phillips. III
Marie B. Phillips
TO THE SHERIFF OF CUMBERLAND COUNTY, PENNA.
The property listed below and levied upon in this case is not the property of the defendant but is the
property of the undersigned. A list of the claimed property and the values thereof are:
LIST OF PROPERTY
VALUE
See Exhibit "A"
Total Value of List is $15.843.70
The Claimant Obtained Title to the Property as Follows:
Sheriff Sale held Friday 8. 1999.
Writ of Execution No. 98-5929 Civil Term
Date October f ~ .2000
Claimant Linwood B. Phillips. Jr.
State of Pennsylvania:
County of Cumberland
Linwood B. Phillips. Jr. being duly sworn according
to law, deposes and sm! that the above list in the property claim are correct and true Sworn and subscribed to
before me this /8" - day of October 2000 _____
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. Claimant
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ROBERT G. FREY. NOTARY PUIUC .
CAilUSLE, CUMI&RI.AND COUN'lY, PA
MY COMIIISSlON ElCPRIRES JUNE a, -
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SOFA
THREE CHAIRS
MISe. FURNITURE
FOUR LAMPS
VCR
STAND
AIR CONDITIONER
SEVEN DEER MOUNTS
WOOD STOVE
THREE LANTERNS
THREE CHAIRS
UTENSILS
TWO IRONS
ELECTRIC STOVE
DRYER 100
MIXER :r
DISH WASHER I ? 0
RADIO Z
TWO HOOVER V ACUUMS ~ D
BED ~~
NIGHT STAND <- S-
ALA~~99K ~
FAN .. Z,
REGINA STEAM V AC Z s
WOOD SLITTER r D 0
VICE Z ."
TWO STEP LADDERS ~o
NRTANK ~o
WHEELB~ , 0
LAWN CHAIRS 'S"
AIR COMPRESSOR 5'0
METAL BOX s
DRILL PRESS cS-
STIHL HEDGE TRIMMER I C> 0
STIHL WEED WACKER I 0 c.)
GARDEN HOSE s
SLEDGE HAMMER ~
TWO TABLES ~
POOL WITH DECK 75'0
STIHL CHAIN SAW I 0 0
WELDER 10 0
TABLE SAW , () 0
HEAVY DUTY DRILL ~ 0
FORD BUSH HOG '50 0
SNOW PLOW '2..0 0
ORTHO SPRAYER Z S-
EX MARK MOWER <- C 0
ARPS RAKE > 0
16 FOOT PARIS TRAILER, TAG#XE-4901O 7~
CUSTOM DELUXE CHEVY TRUCK, LICENSE NO. ZN-39648
CHEVY TRUCK, LICENSE NO, YV-71665
TRAILER, LICENSE NO. TZ-27042
TRAILER, LICENSE NO. TS-76958
FORD TRUCK, LICENSE NO. CF-58546
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TWO COFFEE/END TABLES
PICTURES
TELEVISION
ANSWERING MACHINE/PHONE
CLOCK
DESK & CHAIR
FOX ~,10UNT
TWO RACCOON MOUNTS
DINETTE TABLE
MICROWAVE
POT SIP ANS
REFRIGERATOR
WASHER
FREEZER
TOASTER
TWO HUTCHES
BROOM
TWO DRESSERS
LAMPS
PHONE
GUN RACK
FOUR FISHING RODS
GARDEN TOOLS
BENCH GRINDER
TWO METAL TRAYS
EXTENSION LADDER
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TABLE WI UMBRELLA
MITER BOX
THREE METAL SHELVES
THATCHER
CHAIRS
TOWER CABINET
TWO GAS CANS
WOODEN SWING
AIRM4TTRESS
STIHL BLOWER
BOTTLE JACK
BATTERY CHARGER
CIRCULAR SAW
SCAG MOWER
FORD GRADER BOX
SWENSON SPREADER - CINDER
SCID SPRAYER (280 GAL)
AERATOR
FORD TRACTOR WI LOADER
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WRIT OF EXECUTION and/or ATTACHMENT
COMMONWEALTH OF PENNSYLVANIA)
COUNTY OF CUMBERLAND)
NO. 00-2099 CIVllXKl TERM
CIVIL ACTION - LAW -
TO THE SHERIFF OF ClImber1Flnd
COUNTY:
To satisfy the debt, interest and costs due RonFlJd E. Beinbaur and Yvonne M. Beinhaur
PLAINTIFF(S)
from Linwood B. PhillipS. III and Marie B. PhillipS 1530 CenteIVille Road. Newville,
Pa. 17241
DEFENDANT(S)
(1) You are directed to levy upon the property of the defendant(s) and to sell
All personal property as set forth on the attached Exhibit "A"
(2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of
Linwood B. Phillips. Jr. 93 Encks Mill Road. Carlisle. Pa. l7013
GARNISHEE(S) as follows:
All personal property as set. fortb.on the attached Exhibit "A" of defendants located at
93 Enck:> M;Lll Road CPJ;'lisle'Pa J'7013 Linwood B. Phillips, Jr.
and to not~y tne garnishee(s) tnat: (a) an attachment has been issued; (b) the garnishee(s) is/are enjoined from paying any
debt to or for the account of the defendant(s) and from delivering any property of the defendant(s) or otherwise disposing
thereof;
(3) If property ofthe defendant(s) notlevied upon an subjectto attachment is found inthe possession of anyone other
than a named garnishee, you are directed to notify him/herthat he/she has been added as agarnishee and is enjoined as above
stated,
Atty's Comm $'1.000.00
%
L.L. $0.50
Due Prothy $ 1. 00
Other Costs
Amount Due
Interest
$28.115.70
$ 'i,4R7.17
Atty Paid
Plaintiff Paid
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Date:
Al1qtlst 9. 2000
Curtis R. Lonq
Prothonotary, Civil Division
by: ~ Q 7'Yup(): -'
Deputy
REQUESTING PARTY:
Name John R. Be:inhaur, Esquire
Address: 4650 F.ritchevstreet
HFlrriRbllrg. Pa. 17109
Attorney for: P1Flint-iff
Telephone: (717) 651-9100
Supreme Court ID No, 55631
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R. Thomas Kline, Sheriff, who being duly sworn according to law, states
this writ is returned ABANDONED, NO ACTION TAKEN IN 6 MOS.
Sheriffs Costs:
Docketing
Poundage
Advertising
Law Library
Prothonotary
Mileage
Misc,
Surcharge
Levy
Post Pone Sale
Garnishee
$ 18.00
1.84
.50
1.00
13.64
30.00
20.00
9.00
93.98
Sworn and Subscribed to before me
this lib- day of ~
200] A.D, Q;tD ,a )n,;h, (~
pr thonotary
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Advance Costs:
Sheriff s Costs:
1$5QQO:\
93.98
56.02
Refunded to Arty on 10/25/01
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By(!joudi'aC) fr;h'J~
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