HomeMy WebLinkAbout97-00333
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55
BINGAMAN, HESS, COBLENTZ , BELL, P.C.
By: Karen Feryo Longenecker, Esquire
Identification No. 47093
660 Penn Square Center
601 Penn Street
P.O. Box 61
Reading, PA 19603-0061
(610) 374-8377
Attorney for Plaintiff
CORESTATES BANK, N.A.,
Successor by merger to
MERIDIAN BANK,
IN THE COURT OF COHKON PLEAS OF
CUHBERLAND COUNTY, PENNSYLVANIA
.
.
Plaintiff :
.
.
Docket No. t;7- 3j 3
n~
vs.
STEVEN A. FAILOR and
CYNTHIA L. FAILOR,
Defendants
CIVIL ACTION - LAW
NO'l'ICE
You have been sued in court. If you wish to defend against
the claims set forth in the following pages, you must take action
within twenty (20) days after this Complaint and Notice are served,
by entering a written appearance personally or by attorney and
filing in writing with the court your defenses or objections to the
claims set forth against you. You are warned that if you fail to
do so the case may proceed without you and a judgment may be
entered against you by the court without further notice for any
money claimed in the Complaint or for any other claim or relief
requested by the Plaintiff. You may lose money or property or
other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Court Administrator
4th Floor
Cumberland County Courthouse
Carlisle, PA 17013
Telephone: (717) 240-6200
Meridian Bank
Promissory Note :ConsumersOnly)
~ 50.000.00
StDllmb., 15. l~
'OA VAluE RECEMO. Undmign",Inc.ndlng 10 b. ~&lly bound, P'OIfll,,' 10 P'y 10 th. OIG" of fol.ndiAn a.n. ('Ban", . P'MlYNtI'tl& ~1lIng totpotaUon n.Mg In oIftc. II ~
. ~N'''' ... of FihvThcuund Ind
NCIIIh&lntlSlrn4.~...-enn.".-- pMCl """
00/100
DoIWS ~ u pn:Mdtd bRlw, wMh IN.,... acCNing II &he'll' 01
9.5Ol\
pttliMUlft UI'lIlI piW. .,.,.. rN/'f be camputH on V'It bMrI 01 tM 1dUa.l null'lbef 01 daylln Ill. calendll \t", GMcMd by )OQ.
. IN ....... 'II' ... IOf\h abcwe It ",.,.nc:1d to PhM Bank'. NI1.cwv.1 ~ R.I., Local CornmetaM RiI. Of ~Uf' ConwerCI4lII Rue, Undtt'llOnM Md ...... 0t:Iig0t I"
~ dtftnedI ~ and -sit.. &hII t!) IUChlem.nctd '~'"' ftoallng ~ ,ai. oIlnl.,..1haI1I d~"tromllm'lO time by'...."...1M 'NMklnllComrMtaII"-I.,"
"\.oc:.llI CommefcI,tl AIle' Of .AgttcuAutt Convntrda& Rat,,' uthe C&H may be. and it uud by Bani .. . ,."nc. ,...,..." '"1*110 dlfl'ttenc inltfftl III.. cNIV" 10 ~ M 1M
....... ~ ,.pbIe"""'" thai chMQ.1imulaMouIIy and &IAomaS1c.alfy upon IhfcNng.ln I&.Kh ,.,,,encld tal'; and (\II) .ucn ,....ene.d ,aa.".,." not_1M ~ tlII.II""""
...,...... kNnIlO ofWt bomJrliIIef'I.
AEl'AYIoWIT TIIlMS
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..~ lNnf InIItftl on 1M un" pMdpa,l II cNe and peyU6e
. ThtfUI sum oIltll I.I'1pAic1ptlndp.ll And 1nI"....dl.WltId ~on
.. _llmo_ Tho.... ....Io....""'poyoblo" ......
:s. (Demand LoMf Wentt on the unpaW pMdp.lll due Md ~ monlhly
The W un 01" ~ pMQpAI and Intemt II due and ~ on dlmand.
.. plldl ~ Inlet.... on "" unpaAd pMclpal II d~ and pall'" begInnlr'G
. TMfullUtnof....YnpaldpnnciOllltl'ldlnc......d&MIMd~on .....",.,
rnUlII aIMnC.. and reMfwMC.. to I.JnderUgned .. any cI UndmlgMd tMY r.qu.a In 1lCCOfUM' lIII<<h, and IUOfeC1 to. the prGWIIonI of U'III Not. and "'t ocrw ...........~..a. dOCUmM'III Of
~ nKlMcI ~ connecdon ......,. and rNtt<I UWreco, and M'/ .Nn&ione, modiftca&IonI ot ,..... IhenoI and ....bdIWdone 1heNIot, pt'CMlMd 1'orliM'M, lNIlMI Cf'IIlU; 10
.....,.....,... not --.eM UM' pMdpoII N'n -.sed abowe and NCh cammittMnt may 1""*'-1' at 8Mlt. opUoft.
L~\.OtIl1~and.........dutMdpay~ln_ ~ ~of'
...... boegInning ,One lINI paymenC of tnt ~ unpaid pnncicMII and ltUrnI.lSue and ~ on
L ~ PM.~ LoanJ PltncIpIiI Ie eM and payaDMi in_ tonMCUtM ~ 011
""'" begltvMg ,",ttnl on 1M ~ pmcip.II Ie 1M and ptyaDIe ~
. OM ftNI peyrnenI of I logecMt WI&h tnt f'IfMINng PMdpM and ~ itIl".. III d.... and IMY'* on
_Odobotl,t9ll5
u..40..';"..4 ~ s.n.IO CNtg' III OIpoeM: account I toru. paymerC 01 prlnCIpU &net/at int..... hem.Ind.... Undet'ligMd INIIOM' a..
~ ~ equal'" IN p." 015" of the unHId amounC 01 ""'flCMduMd ~ Of 115.00, ~ ~ 01"'" ~ amounI due on IIY'fdate. ~ ~ by e.n.on
01 MIen UM I:!InCoUendatUyan.. ..,~ C\M1Sal..
UAlllUllES
n.. *'" '\J.abiIdeI,'mMNtN ~ and .......1\IId1MH byuw.Nol.and doChetUabiWn 0I~ 01""'''' Obligor tM.ctl '*'" If\aI irIdud.U.~_-4 MIll d
~ othetwIee IIaIN frof ~ oIUM UabiWnI CO Ban.. """"'.. hefwnd" at CIltlH","" ~ now ....... CIIl'''''''''''' rncun.cr, maa.ncI atUftI'NIWed, dItKt at CGl"IlltIpnC. joint
Of........lilIhelhtt ctMIed dINdJ1 at lCCI\oIWed by IlUgI'I'IWftI at CltMtMM, incWcIltIg II pU and Mut. ~ Of,UlMnCft. and Inf ~ "...aM' .. Of ,..,...,.lhMoI atld
..~ ~ II MIOUIQ ~ed by aan. Mteund., on Mhalf 01 Und.....Md: all ... cnarg... ......... ,... and otI* wch .",... dw ..".... tNI Nota ot ~: III
IIaDeIIUn ~ Prol~ F... and Colts. u """,anti' dennedJ Inc\Irf" by Ban.. Mslng trom Of tl'lated 10.,., haUtdOUI maz.naII Of dangeroul.,~_.menlaI CIOl"ldotw oil tI'f
,... propefty 0IlIlNd Of occupted by Ul"IdmtgMd; anc:II-alI of Ban"" COllI and ..ptfUI incurrM In ~...,..,... enfotcenMl'lC and cOIIKtIon 01 "'" ~ UabIIIUn., lIlNC1Wt Of no!
... .. lnI<uled, and ""'*"... 01 not bMlIrUplcy 01 il'tIoMncy PfOCHGlnst Ntw betn iMIlMed by or agUtII ~, lncIuairtg, WIIIlhoulllmUlloft. ,.~ ,... and ~ 01
ICon'WyI. ~ accowUntI. consuht'Q and ~ ptOItakJnalt r'ProI~ F... and CottI1 . M amcu'ltI alMnCtcI by a..n. h-.und.. on behU of UnclMIIrgMd and" QtMf
,.... COllI and 'JJMMft incuIrtd by 8anlI1/'ld Included 1ft 1M UabIilitIn and be due and payable upon detnlf'ld, WIth Incemt &I an annual raI' .ncn snail be &I tM ,., of Incetnl
~"lHYt.D6t ~H,1rom (1M Clas. 01 peym.flt by B."" until p.,a in ~Il.
c:cw.Tt!W.
M CoIatn (II dtIIntd) II Iecunly fOI 1M lJ,aD.IItln. Th. lenn "Codattf'" Indud.. all langiblt and IrQnglbIe prooenv III detenbed in IIf'/ moI'tgao. Of 0Ihef MCUfIfy docuIMI'Il
~..ec:uled by tnf oIlJ1llC1&..ug.lIcI Of antOUWfCJbllvotk'l connecUOn...,.1N ~ In laotolBMa ('Secwlty00cu ,_..." and M InwhicftUl...._...4 --......
MCUI1Iy Int,,", eo 8atIll ~ 10 tNI HoC.. UMeltigMd g'lIU Bani a tKUl'ly iI'Illlfnll in .. monle&, ucunDn and 0lMf prupeny 01 Und..-..gned MCI ~ ptOCMda tMttof. now or
htruftefln the ~ or CUIIOcJV oI,OI1ntranu~, a.na.. or."" 01 b aIftIlaJ" Ofll.ltllidllnn. tor uI~ COiItdiOl\, p4tdg. or IIfV 0CMf purpou W1duGing,..cho&.f ~."
~ fwt*htf 1"*_ Of spedal) and CNdb I'ICM' or hereWI malntaIntd by \JncMfIigMd W'th 8anIl. Of "",01" .... or "'~ Met In .,.., dMM 01 UncI..... a;a.n<<
8MUI, 01..,01 b.tl"llaln Of~ and Banll""'," III option and'\flllthoYl notICe. ut OIftOMtd 1M P"J'I'M'I 01"", ~ In IlICft Old., Ua.nlrrwyClI'IIlT'rW'e. U'Ie~.oI
.acn ctaIm ag-.nll S..,., Of IIf'/ 01 Ita 1II'\IIaJ.. Of tuDIIdi&ritL Banll" deemed to f\aIrooe ...meed IlUCh rt;f'tI 0111'I 011 and 10 naw INd.. cNIfe ag.......,.., cucn accounc ~tfW' uoon
the 0CCUtNf'ICI 01. Ottaull (u"""""''' defined) -n lhou9h ~ ~."rNd.Of'.nl.,edonlhe ~~ by8anll.. BanlIha&, tlullInoc IIrMtdlo, tne 119m .&i'f't1ll'M InCI
Itom Utnt to 111M, 'M&houlI nollC. 10; ~ ptedg., U&I9" Of' II""'.' 1M Hol. Of tM CoIU.,aI Of &i'f't potllon 11*1'01; (bI """',, intO 1bI 0itWI name Of V'laI 01.. nomwwe all Of"" pili 01.".
CoIaI.,,,: tCl '11fCIU '<l'OtJI'g ngntl on MY ColIat.'a1: td) nollly Vf'I Obl~Of on V"f ColUtIf&l to Ill"'" paymMI CllleaIy 10 BAn. of VfV arnownes due thetton; and ('11'" contrOl 01 1M
procM4t olllf'/ CoIlat".,.
OEFIoUI.T
TlM occunerc. 01.,.., OM 0I1T'101. oI"'e ~ Ih&d cONtllut.. a.fault by Und~ned; l~ non-,.,..-. 01.." 01 VM u.tbtWM. Of aI"'f poIUon 1MfeoI,IIlIMn and In 1M INMef
dUe, wMthtr by ~c""adon Of 0ChtfMI.: {t)I '&llult by Und.l\IgM'd Of urv OIMr ~ 10 obi..... or p&ffoIm ~CCMNIlI. agreemenl. concWon or lemt 01.,..,.....,.... ~ Of
SecUI'Iy Oocumene ..tc\Atd and d~ by UndtfSlGntd 0I11f'/ Olhtf ObligOf In connection IMlh &IIY 01"'. U&bMln; ICI bl"'" by M'f 01 Undtfll9Md Of II'/'f othtf ObM;of 01.",
,'c Exhii;,;: .\
ooliiallOn Of dwty to S.".; (d) ant "p'eMnlallOf"l 0' WW1attty In ."., financial Of oIh., SUI.m.,.,. Ithedull. un.nu,. 01 Olh., docum.'" deliWled 10 BanI! by 01 0I'l ben.1t 01 UndtnlgMd Of
any Glh., ObUgaf aNII prOV9 10 tM"''',., m"~IJd"'9 Of If'ICompl'''. lt1any m.elen. mpeel: (II a mallrlal adW~' c"'a"'VI accul1ln the nnancl" candltlaf\ 01 UndefWioJned 01 ~ OlfIet
ObligOf ~ i. uNcuptabl.lo BanI 1ft III ,ol, dlltl",ion trom lhe condllion mOIl 'I<,,,I'V dJuloud \0 Banlllft arty man"'t; (fI Undtl"llgn'd 01 any otlIlgOf dln.lQI"Nlt" Of~"'" It
appool'lted IOf Undlft.lgned Of *"V oth., ObligOf Of fOl" lutICt....Ual p&r'I of "I 01' In.., property Of Und.t1"11nMt 0' If'fY 01"" ObligOl' comm.nc" any baI'lllr\lplcy Of aimilat proc"MMgI u~,r
arry InlQlWt'lCy laW. ..,,, Of fed"al. Of any a"'" rtfQCHdlrtg "comm,nced agaum UncI,,..gnl1l Of arry otn., ObIIgOl'. Of Uncll"lQntd 0' arry ocn., Obligor t)<<omt If'IloIWnl'. Of ginerally
1..1'10 ~ Of" germaltV unablt 10 pay Ifl d,bl'. Of m.... an au"nm,nt 10' In, beneflt 01 'ltelllOll Of adm,tl in writing Itl lnlOMncy 01' Inabilily Of lailure to pry lit d,btt g.nerally U IIII)'
Ncom4l due, or 1&IIt 'MINn JO dayt 10 rwt or bond or otn.,..,.... dltd'lltgt V"f lUdg,",."' \IIIIIhlch it Ut'ttltlyt'd ptf'd~ IOpul; lhl Under\l9"" Of .", DlhtIf Obligor t.p'",n an Inl,'" 10
Ittmlrtllt. 11'1IO", 01' cNhng' ""~tNIl1V lGr."" Uabillt~ 01 ."" """,.al I.rm of tI"f docum,,.. "Kuttd In conntcUon Mln 11'I. UabIIllln" found 01 dKlaItd 10 be IrMIId by. coutt of
competenll juttI4IctIon: (II arry ptOPtfff of UnctmigMd or IIfV olMf 0bIlg0f bKOmft ttw 1"'b1ed of.", artadUnttlt. glt'l\lWMnl. "'" 0I1en (unl.. ,.prenty ptfmlftld In 'MtIing slgned by
8"'~i UI .", NDIlan/tal pM olIN ~ 01 \Jf'lderIigNd or.", 01"'" Obligor II talleft or cond.mMd by any 8~al ~ M UndlflirgMd or."., CItMt ObIlgor.-lgnl Of'
otnIIWM .,.,.,.,.,., or 11Itmpt1 to .-en or 1rInnf. .", of It, rfgntt., title and lnItmt in "'V of 1M CoIaltnal....houl "', pttor ",,"II' constnI of 8&nIl; III Undtf'&l9Md Of"" 0U\tf 0bIlg0l'
'AliI 10 ll..wnrtn I\Nnclal or 0ClWf iIlfotm,Uton U BanlI m.., rtuon&bfV '~u_ lmJ Ball,.. lhe rtaona~ IIId good 'Mh ,../C!tt 0I1b tole dlacttUon. dHI'M udlnl.curt tOf' II'f ,...on
~ Of lnIl.JndtftIoMd Of"'" ochef 0bIg0f"'" unci" errt 0IMf eg"""" Of ~ appikQIe 10 1I "''''''''''"'G . /NII.1\al oDM.gldon and IUCh def..... It nul ftlM4Ied
WItt*' IN gtKe pertod pnMMd.. IUCtI "'"'"ant or 1nIWm,", Of'ww..d.
AEf,lEClES
Upon the 0ClCUffIftCe of & Def'" ~ s.n.INlIh-. no tuMtf obIIgMionlIo ~IundaIoUnclIlfSigMd ~tf; ibid ~ thaI...v.. opUon oIlanl., be~LtIe-'V due
and ~ and Icl8at'lll m.,..etdM ItII1gh1 of Ml~ u IIlIf frorU'I htrtln.1I'f and II remedIn I\IIIIabIt 10 Banll uncter UWa NoIt and the SecurIIy 00cumtftI'I, and dllgMl and tttMdIn
ava.bIe to. unci" tift appMc:aIllILM.IndudIng, ~ 1rnAItIon. the rightl and ttmICIIn 01& uand party uncl" the ~ Cotnmtldal Cod.. U.ldnigI~d and.. ~ hmtly
...,.;w node' 01 P'6'_.I.....4lot ~ derNnd.~"" Of' dNhonOt, pralnt, acciM<<a&Ion and" fUrU'lef Mticn 01 Mfldnd lneonMCdonMh 1M d.e.y, accepance, del.". Dr
tntorctrMf'll oI1hl1 NoIe. 1M t'ANOyMMIlI rtOtice Dr Ilghl 01 appl'Q't'lll of .lttntlont, ~ modhallonI OIlor1ltltlt'lCft"""" rMt b. aDowtd.
Uoon 1M 0CCUIT'tfIC. of "'1 Oaf... and In, ~t theroI, and upon pftot..aen "ollClIO Uncl~Md by BaIIl,lI'IIernI thai ~ at an IMUal tal, \IItIlch 1haIb... the,... 01
Int.,.. ,..,.... """'"'*. ""... woNd'I .. not paMllIIIftttI dloM V\aI tHt ado.d to pnnopaL . &t"f 01 the UabIIII.. 01 &t"f porUon IMNoI 0IlIllng 10 Banllt no! pMd In ,.... 'IllMn d~. ....... mey
alII' 0CXi0t'l and 'IIIIthoUI notP. ~II" from IIf'f ICCOIM1I 01 Undlf'l)gMd 'MU'l BanlI an amounc equ&llo suc:n OftI'dloM II"OI.IfIf and 10 appty tud't If'lQItd 10 ttw ~ d tM ~
~
.... rI;MI or ~ 01 &.nil "" toM Of ~ uttttng art~. NeIlh" any dNy or laiIure by 8&nl,1n ..~ .",of.. opllont, powwI 01 "VMS MfeW'I,l'IOf Mtpanlaior
ung&. ,.erdM IftINoIINlI conIIIIlAt.... 01 the. to..ttda ttw same Of tnfOClWtrignt.. tI'i oUwI' IimI or tramlimt tollrN UWttlftlf. BanlIIs noIrequftdlO reeortloanr
PMICuW MadyOfpnona 1O.nforn ~ and Sana Is not IUbflCllo &t"frnatlhdng ~or equilin &tnOf'Ig Uncl~.1 men tNnOM, and among I 0I1hem andlt'f
-
UI~ I .lr-EQUS
Ant pelWft whO IIdCUtft IhII NoI... ~ MNbV ~ tMcomn Sw"'V' 10 Banlllot tM rul and prompe p.yI'MftI """'" due. ""*'* Ill;' ~ Of'~. and ....
limn lherrlftlf. of II dIM U&tIiWn. The IrMIldIy 0I1nt por!ton of INt Not. aNI not arr.d1M ~ porttom., 0I1ff'I pari uw.oI. and In the cae 01 tI"f WCh lIMIdWy.'" Not.
thai be COl"II&I\Itd.' tUd'l potIton t\MI noI bt>Itt inMntd. UndemgMd. 'mcn tl\In OM. art joIrDf and ,twrlillt~, and ttw 1,"" 'Undltllgned" \IlihentWt wid ""IN...I 01 the
~ ....... .,. Nolit 'IIIftICfMf .. ~ or anty. AI olIN I",", and ~ ,,1hIt NoI. inln 10 and .... b/f"*'I upon ttM heWt. ..1QAOfS, admlrJoo/tl...... ~
f't1WWIf1I.....I'K'iIMf'I.!NIl... MIl""" of 8atut and Ur'ld~.
~ and ,.n 0tIIIg0r ~~ the right 10 ir'lIWDOH ant d"""'(od1e1lhan P<lY'"tnl'J. Hl-oIt or COUI7I~ 0I1t'f NIW. 01 dncriotlon In al"fMd &I d\eIKII..
betMen "'" 01 "*" and ..,., wnettMf UI'Idtt ltMt Not. Of unct., ant oCNf OIl"""""""""" ., hef'Hlltt tnCUIed.
UncI....... MllI.ecn 0bIg0r ~ IV'" and CIllIftHtIt 10 1M eaduWe juI'IIGk:ItOn of the CouItI of Cornmor'l Pl,.. for M'fCOV'lt't In "..n~ ___left. haI at'I omc.lItd/Of
ttw LInIH.... CICkt Cout lot the Eaum 0IIIl1cI of ~ In 11ft and.. dlDAR,lCIionI 01.... JIngI bttwMn BtitIlt and."oI them, 'lilfWII'M titling ~ 01 uncl.,."
0IhM .......,.. 01 ~ and lrNwocabfy ....10 .... 01 ~ by cenMIed "..a, I'IIUIn ~ NqUethd, to !hem. ttw ..... ....Itt Iht I'MlDf'lIs of 8Ml aM thtt.....
upon IIPf of lMm"'" COMtNt IItf'lIb upoI'I &It of ,"em. .KIt. herWy cpoinllng 1M otheI'{tIlfWit aa~ad forlhe purpo&t 0I~. t1owtoIIf, Ban..not ptKfudtd from bMgIng
an action ~ UndtfW9Md and tKh 0tIUp In Mf ~ In ttM Ul'IIted SLIl.. OI'.........tn wNctI Undtrltgl'lld.llfl/OblIgor Of 11ft of theW ~ II tocaIN. UlId...~.1t4 and
each Obifot 1wtVttf.... Nt to 1l'\&IIe",., 00fed1on In "'V IUCh action or proc~ lNIlN...,.,. It ~ Of the lroNm It illC.,..._4......
....1""" otlIIglllOnl Md pt1MIIOl"II MNOIar. goYlfrl""'id by and COMlfl.Itd In aceorc:anc. WIIh 1M Inltmal '-' oIlnt CornmorYMaAh 01 p~ without mtfMCtlO conIUct 01 '-'
-
All ~ ~ and OUI<< comrnuna!loM reQUI~ by 01' glWtl und., thII ~e.""" be In """'8 and INI be gtwn by'''''''' PI hMd defrttoltty, " "'-' ctuI mail (poMp~.
(';1) ~CMml!I"lI ~ COUMf fCNt;n cnoufI. or M 't1ecooy 01 otMt"'""" 01 MctronIc: ltarrsrniaiorl,"conftImtd ~bytl'follhe 1M'thoctt~ In a.... PI, (III
and ~ of INs tlIftC"'" and "'-II ~ ~. in ltI. ~ II Undll"lllgnld. It tlIftC 10 Ih4 lIIent10n of III proorietOf.g"'" pMtItf Dr"" necudw oftket II IN addNa on eN NCOI'dI 01
8M.. W'ld, In.,. CGMI 01.........10.,. ~ ancI aftention oIUM 10M omc.r "'*'"V IN KCOWnC of Und~.
tN'MMSSWHEREOF.ltIe.....InI."..IOIM lIVd'fbound htttOy, M4,.K\AtcI thlaNol..1hedltf~~~~7W l2/
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GOLDBERG. KATZMAN & SIIIPMAN, P.C.
Thomss J. Weber. 1.0. #58853
SteveR E. Grubb .1.0. # 75897
320 Markel Street I Stmwberry Square
Harrisburg, PA 17108.1268
Attorneys for DefeRdaRts
(717)234-416\
CORESTATES BANK. N.A.,
Successor by merger to
MERIDIAN BANK,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY.
PENNSYLVANIA
Docket No. 97-334 CIVIL
v.
CIVIL ACTION - LAW
STEVEN A. AND CYNTHIA L.
FAILOR.
Defendants
JURY TRIAL DEMANDED
NOTICE TO PLEAD
TO THE PLAINTIFF:
You are hereby notified to file a wrillen response to Ihe enclosed New Matter within
twenty (20) days from service hereof or a judgment may be entered against you.
~ERG, KATZMAN & SHIPMAN. P.C.
BY: ~OL)~ W~
Tho as 1. Webe - LD. #58853
Sleven E. Grubb - LD. # 75897
320 Market Street / Strawberry Square
Harrisburg, PA 17108-1268
Attorneys for Defendants
(717)234-4161
Dated: Z .1"1". ct7
3, Admitted,
4. Admitted.
5, Denied. The Failors specifically deny thot Ihey have defaulled in their
obligations, as Ihe Failors have made payment to Corestates on the $160,000.00 note attached to
the Complaint as Exhibit A, in the fonn of cash deposits lendered direclly to Coreslates
employee, Ralph Felrow with specific instructions and Ihe understanding Ihat the paymenls,
which totalled approximately $145,000.00, would be applied towards the salisfaclion of the
$160,000.00 note.
6. Denied. The Failors specifically deny Ihat Ihey owe Ihe amount claimed as they
have made payment on Ihe $160,000.00 note attached to Ihe Complainl as Exhibit A.
WHEREFORE, the Defendants, Steven and Cynthia Failor demand that the Complaint be
dismissed and that judgment be entered in their favor.
NEW MA TIER
7. The Failors have made payment upon the $160,000.00 note altaehed to the
Complaint as Exhibit A and, therefore, Corestates' cause of action is barred.
8. Corestates' cause of action is barred by Ihe doctrine of fraud in that:
a. AI some poinl after May 12, 1995, Ralph Fetrow, a Vice-President at
Corestales, represented to the Failors Ihat all payments made by them on the
2
$160,000,00 note would be deposited into an escrow account, the procceds of
which would be used to satisfy the $160,000.00 note.
b, The Failors made payment 10 Corestates Bank through its Vice.President,
Ralph Fetrow, under the belief that they were depositing Iheir money into an
escrow account set up by Mr. Fetrow.
c. It is believed Ihat no such escrow account was ever formcd by Mr. Felrow
or anyone at Corestatcs.
d. Nehher Coreslates nor Mr. Fetrow ever explained to the Failors where the
payments that the Failors believed thcy were making into an escrow account to
satisfy Ihe $160,000.00 note were aClually being applied.
e. The Failors paid to Coreslales approximately $145,000.00, none of which
was applied to payment of the $160,000.00 note, as Mr. Fclrow had represented.
f. Mr. Fctrow's fraudulenl misrepresentations prohibited the Failors from
making the necessary payments on the $160,000.00 note, for which Corestates
now complains, because the Failors were lead 10 believe, by Mr. Fetrow, that the
Failors were paying ofT the $160,000.00 note.
9. Corestates' cause of action is barrcd by the doctrine of estoppel.
3
CERTIFICATE OF SERVICE
I hereby certify that I am Ihis day serving a copy of Ihe foregoing document upon the
persons and in the manner indicated bclow, which service salisfies Ihe requirements of the
Pennsylvania Rules of Civil Procedure, by depositing a copy of same in Ihe Uniled Slates mail,
Harrisburg, Pennsylvania, wilh firsl-class poslage prepaid as follows:
Karen Fery Longenecker, Esquire
Charles Shorr, Esquire
Bingaman, Hess, Coblentz & Bell, P.C.
660 Penn Square Center
601 Penn Street
P.O. Box 61
Reading, PA 19603-0061
Seven E, Grub ,Esquire
320 Market Slreet
P.O. Box 1268
Harrisburg, P A 17108-1268
Attomeys for Defendants
1'0
Date: .I t)'f/?7
VERI FICA TION
We hereby verify that the facts set forth in the foregoing document are true and correct to
the best of our knowledge, infonnation and belief. I understand that false stalement herein are
made subject to the penalties of 18 Pa. C.S.A. ~4904. relating to unsworn falsification to
authorities.
Date: '2- IV-!?
L: 1/ ~dl
Steven A. Failor ~
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Cynthia L. F
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this case. '1'0 the extent the avermentf; of l'araCJraph 2 state a
conclusion of law, no response is required.
3. Denied. It is specH ically denied that Pennsylvania Rule
of civil Procedure 403 states that service is complete upon
mailing. Rather, Pennsylvania Rule of civil Procedure 403 clearly
states that "[s]ervice is complete upon delivery of the mail."
The Defendants' Answer with New Matter was not forwarded to the
Plaintiff until February 19, 1997, and the Plaintiff did not
receive this document until February 20, 1997. In support of this
assertion the Plaintiff attaches as Exhibit A and incorporates by
reference herein a true and correct copy of the cover letter sent
by the attorney for the Defendants to the attorney for the
Plaintiff enclosing the Defendants' Answer with New Matter. This
letter is dated February 19, 1997 and was received by the Plaintiff
on February 20, 1997.
4. Denied. Pennsylvania Rule of civil Procedure 1026 speaks
for itself and any attempt to paraphrase the same is denied. By
way of further response, it is specifically denied that the time
frame set forth in Pennsylvania Rule of civil Procedure 1026 is
mandatory or that Plaintiff failed to comply with Pennsylvania Rule
of civil Procedure 1026. If, however, it is determined that the
Preliminary Objections of Plaintiff to Defendants' New Matter were
not filed in accordance with Pennsylvania Rule of civil Procedure
1026, the Plaintiff asserts that this failure did not...
substantial rights of the parties.
5. Admitted.
6. Denied. It is specifically denied that the Plaintiff
filed its responsive pleading beyond the time allowed under
Pennsylvania law. Plaintiff acted in compliance with the
Pennsylvania Rules of civil Procedure and relevant caselaw in
filing its Preliminary Objections to Defendants' New Matter. By
way of further response, the Plaintiff incorporates herein by
reference its answer set forth in Paragraph 4 hereof, as though the
same were fully set forth herein at length.
7. Denied. It is specifically denied that the Plaintiff
failed to file its Preliminary Objections to Defendants' New Matter
in a timely fashion. Rather, Plaintiff acted in compliance with
the Pennsylvania Rules of civil Procedure and relevant case law in
filing its Preliminary Objections to Defendants' New Matter. By
way of further response, the Plaintiff incorporates herein by
reference its answer set forth in Paragraph 6 hereof, as though the
same were fully set forth herein at length.
II. MOTION TO STRIKE CORESTATES' DEMURRER TO NEW MATTER
8. Denied. Plaintiff incorporates herein by reference its
answers set forth in Paragraphs 1 through 7 hereof as though the
same were fully set forth herein at length.
9. Denied for the reasons set forth in Paragraphs 6 through
12 of the Preliminary Objections of Plaintiff to Defendants' New
Matter and Paragraphs 10 through 12 hereof, which are incorporated
herein by reference as though the same were fully set forth herein
at length.
10. Denied. The matters set forth in Paragraph 10 are
111583.1
conclusions of law to which no response is required. To the extent
a response is required, the Plaintiff submits that a demurrer is
warranted herein for the reasons set forth in Paragraphs 6 through
12 of the Preliminary Objections of Plaintiff to Defendants' New
Matter and Paragraph 12 hereof, which are incorporated herein by
reference.
11. Denied. The Defendants' New Matter speaks for itself.
By way of further response, the Plaintiff denies that any alleged
defenses that may have been raised in Defendants' New Matter are in
any way meritorious or legally sufficient.
12. Denied. It is specifically denied that a demurrer is not
proper to strike New Matter.
A demurrer tests the legal
sufficiency of the challenged pleading and can be used to dispute
the sufficiency of a legal claim or a defense to a legal claim.
\1HEREFORE, Plaintiff, CoreStates Bank, N. A., successor by
merger to Mer idian Bank, respectfully requests that Defendants I
Preliminary Objections to the preliminary Objections of Plaintiff
to Defendants' New Matter be stricken.
BINGAMAN, HESS, COBLENTZ & BELL, P.C.
By: ~MI~~~~tu"rr, Jr., Esquire
Attorney ID# 74813
660 Penn square Center
601 Penn Street
P.O. Box 61
Reading, PA 19603-0061
(610) 374-8377
Attorneys for Plaintiff
CoreStates Bank, N.A.
111583.1
VERIFICATION
James T. Grady, an adult individual, verifies that he is a
duly authorized vice President of Corestates Dank, N.A., Plaintiff
herein, that he is authorized to make this verification on
Plaintiff's behalf, and that the facts set forth in the foregoing
Answer to Preliminary Objections to the Preliminary Objections of
Plaintiff to Defendants' New Matter are true and correct to the
best of his knowledge, information and belief.
lie makes this verification \~ith a full understanding of 18 Pa.
C.S. section 4904, which relates to penalties for unsworn
falsifications to authorities.
Dated:
Q;
(.--1.-/, -.......
T. Grady
111583.1
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alternative, requested that the Defendants file a more specific
pleading.
The Defendants responded by filing Preliminary
Objections to the Preliminary Objections of Plaintiff to
Defendants' New Matter on March 29, 1997.
The Plaintiff
subsequently filed an Answer to Preliminary Objections to the
Preliminary Objections of Plaintiff to Defendants' New Matter along
with a SUpplemental Brief.
This brief is submitted in support of the Plaintiff's
Preliminary Objections to Defendants' New Matter and sets forth the
Plaintiff's arguments in both of the above-referenced case numbers,
97-333 and 97-334, due to the similarity of facts in these two
matters.
II. ISSUES
A. SHOULD PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANTS'
NEW MATTER IN THE FORM OF A MOTION TO STRIKE BE SUSTAINED, DUE TO
LACK OF SUFFICIENT PARTICULARITY IN PLEADINGS?
SUGGESTED ANSWER: YES.
B. SHOULD PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANTS'
NEW MATTER IN THE FORM OF A DEMURRER BE SUSTAINED, DUE TO LEGAL
INSUFFICIENCY?
SUGGESTED ANSWER: YES.
III. ARGUMENT
A. Motion to Strike.
Plaintiff's Preliminary Objections to Defendants' New Matter
in the form of a Motion to Strike should be sustained, as the
Defendants have not pleaded their New Matter with sufficient
particularity. Pennsylvania is a fact pleading state, not a notice
pleading state, and averments must be SUfficiently detailed to
113916.1
permit the respondent to formulate a defense.
Cassell v.
Shellenberqer,
356 Pa.super.
101,
514 A.2d 163
(1986) .
Furthermore, the availabi 1i ty of discovery does not in any way
reduce the pleading requirements, and a party must still properly
and adequately frame the issues through its pleadings. Cullinqs v.
Farmers & Merchants Trust Co., 8 D. & C. 3d 764 (Franklin 1978).
In the matter docketed at 97-333, one of the Defendants'
alleged defenses is the "doctrine of payment," and the Defendants
attach a Mortgage Satisfaction piece allegedly in support of this
assertion. However, the Defendants aver no facts in support of
their alleged defense that they paid this obligation, including the
specifics regarding time and place of payment, amount paid, and how
the payments were made. Under Pennsylvania Rule of Civil Procedure
1019(f) averments of time and place must be made with specificity.
In this matter the Defendants have asserted that they paid this
obligation prior to the time the Complaint was filed, but they have
not specified when this obligation was allegedly paid or set forth
any other specifics regarding its alleged satisfaction.
In addition, Defendants have boldly asserted the defense of
"fraud. II
Under Pennsylvania Rule of civil Procedure 1019(b)
averments of fraud must be alleged with particularity. Allegations
of frand must be set forth in sufficient detail to allow a party to
prepare a defense and to allow a court to confirm that the claim of
II fraudll is not simply "subterfuge. II In re Estate of Schofield, 505
Pa. 95, 103, 477 A.2d 473, 477 (1984). However, in this matter the
Defendants have simply stated that "CoreStates' cause of action is
113916.1
,
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barred by the doctrine of fraud" (Defendants' Answer with New
Matter, Paragraph 11) and have not set forth any facts regarding
this alleged defense. The Defendants certainly can not claim that
their allegations of fraud are sufficiently detailed when they have
not provided any details at all regarding these allegations. Thus,
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these averments should be stricken.
In the matter docketed at 97-334 the Defendants have also
averred fraud with regard to the Plaintiff's alleged agreement to
establish an escrow account. However, once again, the Defendants
have failed to sufficiently set forth their allegations of fraud
and have not specifically stated their allegations of time and
place. For example, the Defendants aver that the Plaintiff agreed
to establish an escrow account but do not indicate what type of
escrow account, in what name the account was to be established, the
amount that was to be deposited into this account, and other
material terms of such an account.
In addition, the Defendants
aver that they made certain payments into this escrow account, but
they have not specified the time or place that these payments were
made. Thus, the Plaintiff is unable to formulate a defense, and
these averments should be stricken.
B. Demurrer
Second, the Defendants' alleged defenses set forth in their
New Matter are not legally sufficient. A demurrer is broadly used
to test the legal sufficiency of, among other pleadings, a
defendant's answer and new matter.
Goodrich-Amram 2d section
1017 (b) : 25. A demurrer a lleges II tha t even if the facts set forth
113916,1
be true they do not constitute a legal claim, or defense to the
claim, as the case may be.1I Dippel v. Brunozzi, 365 Pa. 264, 269,
74 A.2d 112, 115 (1950). The standard for reviewing a demurrer is
whether the law will permit a recovery based on the facts alleged.
Kvle v. McNamara & Criste, 506 Pa. 631, 487 A.2d 814 (1985).
In the matter docketed at 97-333, it is clear that the
Defendants' allegations are not legally sufficient as a defense to
the Plaintiff's Complaint. The Defendants allege that they made
certain payments on behalf of the Note and refer to a Mortgage
Satisfaction Piece, which purportedly indicates that a certain
mortgage was released. However, the Plaintiff's Complaint alleges
that the Defendants are in default under the Note, because they are
not current on their payment obligations under the Note. The
Plaintiff does not dispute that at one time the Defendants made
payments on the Note. Thus, the Defendants' averments that they
made certain payments on the Note and that the Plaintiff released
a mortgage held as collateral for the outstanding obligation are
legally insuff icient to defeat the Plaintiff I s claim that the
Defendants are now in default under the Note. Therefore, the
Defendants' allegations should be dismissed.
In the matter docketed at 97-334, it is also clear that the
Defendants' averments are not legally sufficient. The Defendants
aver that the Plaintiff allegedly agreed to establish an escrow
account and that they made certain payments into this escrow
account. However, the Plaintiff's complaint alleges that the
Defendants are in default under the Note, because they are not
113916.1
3. AdmiUed,
4. Admiued in part and denied in part. It is admiued that the Failors did not assign
the note, however, it is denied that they are the holders of the note as the amount whieh was to be
paid under the no Ie was paid in full as indicated by the Mortgage Satisfaction Piece and copy of
Mortgage which is marked fully satisfied, which are auached hereto as Exhibits A and B,
respectively. Both Exhibits have been duly recorded at the Cumberland County Recorder of
Deeds office. By way offurther answer, it is the Failors' belief that they satisfied the loan
pursuant to deposits made to Corestates through its agent, Ralph Fetrow.
5. Denied. The Failors have not defaulted in their obligations because they have
fully satisfied the debt they owed Corestates as indicated in Exhibits A and B aUached hereto.
6. Denied. The Failors specifically deny that they owe any of the amounts described
as they have fully satisfied the debt obligation they owed Corestates as indicated in Exhibits A
and B aUached hereto.
WHEREFORE, the Defendants, Steven and Cynthia Failor demand that the Complaint be
dismissed and that judgment be entered in their favor.
NEW MATTER
7. Corestates' cause of action is barred by the doctrine of payment as the Failors
have made payment upon the $50,000.00 note aUached to the Complaint as Exhibit A as
2
indicated by the exhibits attached hereto as Exhibits A and B.
8. Corestates' cause of action is barred by the doctrine of estoppel.
I
9.
Corestates' cause of action is barred by the doctrine of consent.
10. Corestates' cause of action is barred by the doctrine of release.
11. Corestates' cause of action is barred by the doctrine of fraud.
WHEREFORE defendants rcspectfully request that the complaint be dismissed and
judgment entered in their favor.
Respectfully Submilled,
GOLDBERG, KATZMAN & SHIPMAN, P.C.
~
BY:
vJvVk
Thom ], Weber -1. . #58853
Steven E. Grubb - I.D. # 75897
320 Market Street I Strawberry Square
Harrisburg, P A 171 08-1268
Attorneys for Defendants
(717) 234-4161
Dated: 2. ~ 'f ' en
3
Exhibit A
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MORTGAGE SATISFACTION PIECE
Made this ~_day of Mav
.19 ~,
~.C~::~i ~. Z!ECL~.~
r~co-D-o OF 0-"05
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!;~M5:?L~:lO COU:li'(..P~
Name of Mortgagor: STEVEN A. FAILOR ANO CYNTHIA L FAILOR
Name of Mortgagee: Meridian Bank
Name of Last Assignee (if any): NONE
Date of Mortgage: 09/1S/95
Original Mortgage Debt: S SQ,IXlO,OO
90 J Uti 1 ij f1JTI9"""51
RE: A Mortgage recorded on09/1S/9S . in the Office of the Recorder of Deeds of
CUMBERlANO ' County, Pennsylvania. in MortgagB Book Vol.1282 , Page2so , et seq.
(Unless the word .None. Is Inserted after thB .Name of Last Assignee. above, complete the following) :'with
the last assignment of said Mortgage having been recorded on . In the Office of the
Recorder of Deeds of' County, Pennsylvania, In Mortgage Book Vol
Page
An address or brief descrlptlon of location of Mortgaged Premises Is as follows:
203 SMITH ROAD. SHIPPENSBURG. PENN TOWNSHIP. CUMBERLANO COUNTY. STATE OF PA
PARCEL' 31.11~
The undersigned hereby certlf1es that the debt secured by the above descrlbed Mortgage has been ftJIly
paid or otherwise discharged and that upon the recording of this Mortgage Satisfaction Piece said Mortgage
shall be and )s hereby fully and forever satisfied and discharged.
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WItness the due execution hereof.
Attested or witnessed by:
~LAW~
NarP' an M Btown
rill. AVP
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Name:OlANNE R. PIOfRowsl<1
rille: AVP
(SEALl
STATE OF PENNSYLVANIA
COUNTY OF BERKS
SS:
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On the 24th day of May ,19 96 ,before me, the undersigned (who Is authorized to
make this AcknOWledgement), persOnally appeareaOIANNER. PlOTROWSlO
who acknowledged hlmself/herself to be a Am VI"" Pro of Meridian Bank.
a Corporation. and that (s)he as such officer was and Is duly authorized to execute and did execute the
foregoing Mortgage Satisfaction Piece for the purposes therein contained by signing the name of the
Corporation by hlmselfjherself In his/her capacity as such offlcer.
IN WITNESS WHEREOF,I have hereunto set my hand and officlaJ seal.
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BOOK 522 PACE 327
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MORTGAGE SATISFACTION PIECE
Made this ~day of May
,19 ~.
Name of Mongagor: STEVEN A. FAllORANO CYNTHIA L FAILOR
Name of Mongagee: Meridian Bank
Name of Last Assignee (If any): NONE
Date of Mongage: 09M/9S
Original Mongage Debt: S 50,000.00
RE: A Mongage recorded on09M/9S . In the Office of the Recorder of Deeds of
CUMBERlAND - Counry, Pennsylvania, In Mongage Book VoI.1282 , Page~ , eL seq.
(Unless the word 'None. Is Insened after the 'Name of Last Assignee. above, complete the fOllOWing) : with
the last assignment of said Mongage having been recorded on , In the Office of the
Recorder of Deeds of' Counry, Pennsylvania, In Mongage Book Vol
Page
An address or brief dascrfptlon of location of Mortgaged Premises Is as follows:
203 SMITH ROAD, SHIPPENSBURG, PENN TOWNSHIP. CUMBERlANO COUNlY, STATE OF PA
PARCel" 31.11.()3OO.O1l3
The undersigned hereby certltles that the debt secured by the above dascrlbed Mortgage has been fully
paid or otherwfse discharged and that upon the recording of this Mortgage Satlsfac1Jon Piece said Mongage
shall be and Is hereby fully and forever satisfied and discharged.
WItness the due executlon hereof.
Attested or witnessed by:
Name: Joan M &own
TIde: AVP
(SEAt.)
Name:O~NE R. PIOTROWSIO
Tllfe: AVP
STATE OF PENNSYLVANIA
COUNTY OF BERKS
SS:
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On the 24th day of Mav , 19 '96 ,before me, the underslgned (who Is authorized to
make this AcKnOWledgement), persOnally appeareaOIANNE R. PIOTROWSKI
who acknowledged hlrnself/herself to be a Ass! VIce Ptes of Meridian Bank,
a Corporatfon, and that (s)he as such officer was and Is duly authorized to execute and did execute the
foregoing Mortgage Satlsfac1Jon Piece for the purposes therein contaJned by signing the name of the
Corporatfon by himself/herself In hls/her capaclty as such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and officlaf seal.
Notary PubllcOEBRASNYDER
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IHTIlAnT!<NO eft-I!" INC!ITII!:ONISS
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Commllmcnl H..
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ALL ~r aaTAllIlIIlJojIrovd trl.t or 111I4 II""" In Penn r.....lIlp, QJlberl"",
Colli..,. PtMSylv,nh, "''' partlcllarly balndd 11I4 d..crlbod ..conllnl to .
PTlUatn,ry '!nIl SubcUvhion 'Ian for ,JJ J.llrq Sahh d.ud JU1r 10. J9I~ In"
fuord,d .in the Ofllea at the R'''JnStr of Duds 1n and for o.bcr and CN1ff 1'1
Plan look .c9, Pll' 62, &I 1011o.n:
IECINl/Ir.\: It a polne CPI NU) In tho ...,"rllno or r.....hlp Jlood r.116 CSoolth
Road), at the Joutlrdncm comer of Lot No. 4 as .hewn CI'I ih. abovt.dfScrlbfod
SubdlYJs10n Plan: thene. by JllcS 14t N:J. 4, North 76 dlm.1 OS alnU\u 40 .
uccnc!.s Eut 226.00 ftlt to an inn pin; "'thane. by land ncN.or (orlllrlyof lvarn
S. Hartin cro_rly land or tho Cranto... hordn). South 11 dolt'" 17 IIInuu.
SO uconds Ealt IS0.00 lilt to In hen pin: thmce CDntlnuJnJ by thl....., Swth
76 d"n.. OS adnutlJ 40 "teMs WQC U6.DO flit to . point' (rr RaUl jll tit'
.on"rllno of r""lSh!p Rod r.J16 CSlalth Road); th.nco by I).. .lIlllrlln. or .ald
Road, Harth 11 dtlftU 17 NnUlU SO uCMdl West 150.00 Cut to I poJnt cPr
nlll) In tho .entlrlln. or r.....lIlp Road r.J16 (Slallh Rood), tho point and ploco,
or IECllfllNC,
lEtHe chI .... p~Dp.rc7 vhlch J. Jaffe., latch .ad SUII. D. latCb, ,r..c..
'0' cDavI," lIaco SClvaa A. r.11or aad C,.CbLa L. '.110f. hi, vit.. KDrCI"~'.
bareiD. II,. .... daud DIe..llar 4. UI6 aoel flcoed'" to ch. DeUn of till
lIcordae at Dud. tor Cu.llulaod eoll"e7 10 Dud look "I". 'olu.1 32. rar.. 'OA.
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WHEREFoRE, the Failors respectfully request that Count II of CoreStates' Preliminary
Objections to Defendants' New Matter be stricken,
GOLDBERG, KATZMAN & SHIPMAN, P.C.
~ ')' {
\, ,; " -
,I "'1,,';- i'I,__-
BY:~'I.lil'l ('\//
I mas W, Weber. Esquire
I.D, #58853
Steven E. Grubb, Esquire
I.D, #75897
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
(717) 234-4161
Counsel for Defendants
DATE' '2 -;C 11-:1
. ,)'t t)' "/ /
Ibd:SEa:D0C3:FAILOR:POSPOS,334)
4
BINGAMAN, HESS, COBLENTZ & BELL, P,C.
By: David E. Turner, Esquire
Identification No, 19380
660 Penn Square Center
601 Penn Street
P.O. Box 61
Reading, PA 19603-0061
(610) 374-8377
Attorney for Plaintiff
IN THE COURT OF COMMON PLEAS OP
CUMBERLAND COUNTY, PENNSYLVANIA
CORESTATES BANK, N.A.,
successor by merger to
MERIDIAN BANK,
No. 97-333 Civil'''-
97-334 civil
97-336 Civil
97-337 Civil
Plaintiff
vs.
STEVEN A. FAILOR and
CYNTHIA L. FAILOR,
Defendants
CIVIL ACTION - LAW
PROOP OF SERVICE
COUNTY OF BERKS
ss.
COMMONWEALTH OF PENNA.
I, Malissa N, Young, do depose and say that I served true
and correct of Plaintiff/s First Set of Interrogatories and
Request for production of Documents Addressed to Defendants in
each of the above actions were served on June ~/ 1997, via
U.S. First class mail addressed as follows:
Thomas J. Weber, Esquire
Goldberg, Katzman & Shipman, P.C.
320 Market Street, Strawberry Square
P.O. Box 1268
Harrisburg, PA 17108-1268
17t rr (1 Ad r__. 11 Ij(}r~l-"J-
Mallssa N. Young
Sworn to and subscribed before me
this J11JL day of
0~J n (;
/ 1992.
(\ ..-t-.;-i1~1 ~ aQ{il\ .111 Air' /;:jr~
~~'y PL,blic
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SHERIFF'S RETURN - REGULAR
CAS~ NO: 1997-00333 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
COJ~J:!i.Tt.T.f._!?"J~~NJ5,.N,_L. ..
VS.
~'MJ~Q!LSTF;,y"E.N..~_F;,T AI.
J!J.GHAE4-J!I\RRJ.CK.._
~ Sh~riff or Deputy Sheriff of
being duly sworn according
CUMBERLAND County, Pennsylvania, who
to law, says, the within COMPI.AINT
upon _[!tILOR CYHTIJ.!I\.I,.... __... ._.
defendant, at 1155:00 HOURS, on the 27th day of January
1 ':J'!Z- at ,_22,:i l!L J.iJ.J.l;:1<..JIO.!tD_,._ ___un _. _._u__.. ._____..m__
NE~VILLE,. PA 17241
was served
the
,CUMBERLAND
STEVE FAILOR. ADULT IN
County, Pennsylvania, by handing to
(::JiAJ.iG..~,___.._.__
a true and attested copy of the COMPLAINT
together with NOTICE
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
So answers: ~~_ .;
:;'~
6.00
.00
.00
2.00
S8.101O
IlINGAMAN !lESS COBLENTZ & BELL /7
01'28'::97 '-74R~;'
Sworn and subBcrib~to befor~ me
this . ,1.1~ day of~,_ _ , ,
19m~J__ A. D.
__0 (2th~'/~- ;pPj
-~ro :o'n'O'tirr"j.
-~_."'_q.~_r
I'IlAECIPE FOil LISTING CASE FOil MlGUMENT
(Must be typewritten aOO subnitted in duplicate)
TO THE PROTHONOTAIlY OF CUMBERLAND COUNTY:
Please list the within matter for the next I\rgurent Court.
---------------------------------------------------------------------------------------
CAPTION OF CASE
(entire caption JlIJSt be stated in full)
CORESTATES BANK, N.A.,
successor by merger to
MERIDIAN BANK
(plaintiff)
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vs.
STEVEN A. FAILOR and
CYNTHIA L. FAILOR
(Defendant)
No. 97-333 Civil
19 97
1. State 1I1i1tter to be argued (i.e.. plaintiff's IlDtion for new trial, deCentliJllt's
denurrer to canplaint. etc.):
Preliminary Objections of Plaintiff to Defendants' New Matter and
pprleliiminary Objections of Defendants to the Preliminary Objections of
a ntiff to Defendants' New Matter
2. Identify counsel We will.>1rgUe case:
(a) for plaintiff: Karen Feryo Longenecker, Esquire
~ess: Bingaman, Hess, Coblentz & Bell, P.C.
601 Penn street, P.O. Box 61
Reading, PA 19603
(b) for defendant: Thomas J. Weber, Esquire
Address: Goldberg, Katzman & Shipman, P.C.
320 Market Street, Strawberry square
P.O. Box 1266 '
Harrisburg, PA 17106-1268
3. I will notify all parties in writing within boQ days that this case hilS
been listed for argurent.
4. Argurent Court Date: May 28, 1997
D:ltw: '/;'1 /q:r
Snavely, 203 Pa,Super. 162, 199 A,2d 540 (1964) and KinlJ v, United States Steel Cot:p" 432 Pa.
140,247 A.2d 563 (1968). In Kinll v, United States Stcel COt:p" id.,lhe court noted that thc
plaintiff had demurred to the defense and "moved to havc it stricken," Thus, in thc conlext of
objections to new malter, the end rcsult of a demurrer and a motion to strike is the same.
Turning to plaintiffs preliminary objeclions to defendants' new malter, we will address
the objections to each defense, The defendants' first defense is the doctrine of payment.
Specifically, the defendants state that they have "made payment" on the $160,000 note and the
$50,000 note, In response, the plaintiff has moved to strike thc defenses because they do not aver
time and place according to Pa.R,C.P. No. 1019 (I), and because the defenses arc not supported
by specific material facts as implicitly required by Pa.R.C.P. No, 1019 (a). The plaintiff also has
moved for a more specific pleading based on the same grounds, and has demurred to the defense
for being legally insufficient to defend against the plaintiffs claim.
A preliminary objection in the form of a motion to strike is appropriate according to
Pa.R.C,P. No. 1028 (a)(2) when the pleading does not conform to law or to a rulc of court or
when the plending includes scandalous or impertinent malter. Essentially, the purpose of a
motion to strike is to rid a pleading of offensive surplusage or to correct the format to conform to
the rules of good pleading. Albert Einstcin Medical Center v, Nathan, 5 D. & C. 3d 619 (1978),
A motion for more specific pleading is allowed under Pa,R.C.P. No. 1028 (a)(3), and the
question the court must resolve is whether the pleading is sufficiently clear to enable an opposing
party to prepare a responsc, The pleading does not need to be overly specific. but must state all
material facts upon which a cause of action or defense is based. Ouinn v. Mnrnzzll, 7 D. & C. 3d
168 (1978).
4
Finally, a demurrer is allowed under Pa,R,C,P. No. 1028 (a)(4) to challcnge the legal
sufficiency of a pleading, When thc trial court considers a demurrcr, it must accept as true all
well pleaded allegations. County of Allellheny v, Commonwealth, 507 Pa. 360,372,490 A.2d
402, 408 (1985). If the facts as pleaded state a claim for which relief may be granted or a defense
that may bc upheld undcr any theory of law, then there is sufficient doubt requiring the demurrer
to be rejected, Philmar Mid-Atlantic, Ine, v, York Street Association II, 389 Pa,Super. 297, 566
A.2d 1253 (1989).
We further note that where a motion to strike is basically directed at whether a pleading is
sufficiently specific, it will be treated as a motion for more specific pleading. Rellal Advertisinll
Association v, Taft Broadcastinll Co., 59 Luz.L,Reg. 45 (1968). Failure to aver time and place,
for example, is appropriately addressed in a motion for more specific pleading. Linn v. MO(llan,
70 D. & C. 2d (1974). As such, we overrule the motion to strike in regard to the defendant's first
defense, and address the demurrer and the motion for more specific pleading,
We agree with the plaintiff that the defendants' defense is too vague, Quite simply, the
defendants fail to mention how much they have paid in satisfaction of the note and when and
how these payments were made -- facts which are essential to the defense. As SUC;I, we grant the
motion for more specific pleading, and need not address the demurrer, since we cannot know if
the defense of payment is legally sufficient without having more specific facts,
Thc dcfendants' second defense is the doctrine of fraud, In Civil No, 333 the defendants
simply state that thc plaintiffs cause of action is barred by the doctrine of fraud, In Civil No.
334, the dcfendants allege the following facts to support the defense of fraud. Specifically, the
Failors claim that at somc point after May 12, 1995, Ralph Fetrow, a Vice-President at
5
Corestates, represented to them that all payments made on the $] 60,000 note would be deposited
into an escrow account, the proceeds of which would be used to satisfy the $160,000 note. The
Failors further claim that they paid $145,000 into the escrow account which they now believe
never existed. They claim that Mr. Fetrow's fraudulent misrepresentations prevented them from
making the necessary payments on the $160,000 note,
In response to the fraud defense in Civil No. 333, the plaintiff makes a motion to strike
and a motion for more specific pleading because the allegation of fraud is not plead with
particularity as required by Pa,R,C.P. No. 1019 (b). Since the plaintiffs motion to strike is, once
again, essentially a motion for more speeific pleading, we will deny the motion to strike and only
address the motion for more specific pleading,
To determine whether fraud has been pleaded with the required particularity, the court
must examine a complaint as a whole. Rule 1019 (b) requires only that the facts constituting
fraud be alleged and that fraud not be pleaded as a legal conclusion, not that the allegations of
fact be drawn with pleading skill and be arranged in logical and proper sequence. The use of the
actual word "fraud" is unnecessary if the factual averments, if proven, would establish fraud. 2
Goodrich Amram 2d 91019 (b): I at 330 (1991),
In regard to Civil No. 333, the defendants have pleaded fraud as a legal conclusion
without any reference to facts constituting fraud, Therefore, we grant plaintiffs motion for more
specific pleading, and require that fraud be pled with particularity in the amended new matter.
In response to the fraud defense in Civil No, 334, the plaintiff makes a motion to strike
based on grounds that fraud is not plead with particularity, that the defendants failed to
specifically aver the time and place of the allegcd establishment of the escrow account, and that
6
t
,
I
,
~
,
the defendants failed to allach a copy ofthc escrow account agreement as required by Pa.R,C,P.
No. 1019 (h). The plaintiff also motions for a more specific pleading, claiming, generally, that
the defendant failed to plead thc specific facts and circumstances surrounding thc allegation of
fraud. Lastly, the defendant has gencrally and, we should mention, unartfully demurred to the
fraud defense.l
In regard to the third ground for the plaintiffs motion to strike, we note that Rule 1019 (h)
requires that when a pleaded defense is based upon a writing, a copy of the writing be attached to
the pleading. In this case the defendants do not rely on any writing in their fraud defense --
there's no indication that the agreement to form the escrow account was ever reduced to writing.
Furthermore, we feel that the first two grounds for plaintiffs motion to strike are really grounds
for a motion for more specific pleading. As such, we deny the plaintiffs motion to strike in
regard to the fraud defense,
'Ye do, however, find merit in the plaintiffs motion for more specific pleading and the
demurrer, In Pennsylvania, thc courts have traditionally held that a party must establish five
elements in order to demonstrate fraud: (1) a misrepresentation; (2) a fraudulent utterance
thereof; (3) an intention by the maker that the recipient will thereby be induced to act; (4)
justifiable reliance by the recipient upon the misrepresentation; and (5) damage to the recipient as
the proximate result. Brindle v. West Allellheny Hospital, 406 Pa.Super. 572, 574, 594 A.2d
766,768 (1991),
The plaintiff claims that the "defendants have failed to show any relationship
between the plaintiffs alleged failure to establish an escrow account and the present default
status of the note." The plaintiff also claims that "the factual averments set forth in defendant's
new matter are legally insufficient as a defcnse to thc matters set forth in plaintiffs complaint
7
The defendants claim that the Vicc-President at Corestates rcprescnted to lhem that they
could put their money in an escrow account which would somehow also satisfy thcir loan
obligation. The defendants also claim that lhcy rclied on the representation, and havc not becn
able to satisfy their obligalion as a result, Thc defendants fail, howcvcr, to aver facts which
indicate that the Vice-President made an intentional misrepresentation. Rathcr than strike the
defense at this point, we will grant the defendants time to amend.
Furthermore, we believe that the defendant's averment of fraud should be more specific in
regard to time and place. The defendants claim that the misrepresentation took place at some
point after May 12, 1995. It has been held that a pleading is defective ifit generally avers that a
transaction occurred during a particular year, Austin v. Austin's Estate, 18 Monroe 60 (1956). In
this case, the misrepresentation could have occurred at any point up until the complaint was filed
on January 21, 1997 -- a very broad period oftirne. We, thercfore, believe the defendants should
state more specifically the time and place whcre they met with thc Vice-President or at least
explain why they are unable to so state..
In response to the defendant's final defense of equitable estoppel in civil 334, the plaintiff
once again makes a motion to strike, a motion for more specific pleading, and a demurrer based
on the same grounds as the objections to fraud -- since the facts supporting the defenses of fraud
and equitable estoppel are the same, The only difference in our analysis of these objections
results from the different elcments constituting lhe dcfense of equitable estoppel.
Equitable estoppel arises when one by his acts, representations, or admissions, or by his
silence when he ought to speak oUl, intentionally or through culpable negligence induces another
to believe certain facts to exist and such other rightfully relies and acts on such belief so that he
8
will be prejudiced if the formcr is permitted to deny cxistcnce of such fact. Mudd v. Nosker
Lumber. Ine" 443 Pa,Super. 483, 662 A.2d 660 (1995),
Since equitable estoppel requircs only negligent inducement, wc feel the defendants have
pled sufficient facts to warrant the defense. Wc note, howevcr, that the defendants must still
i
I
plead with more specificity the time and place of the misrepresentation as we mentioned above.
Lastly, we address the defendants' three final defcnses in Civil No. 333: Estoppel,
consent, and release. Each of these defenses is pled generally as a conclusion of law. As such,
we grant the plaintiffs motion for more specific pleading, and grant the defendants time to
amend these defenses to include the material facts upon which they are based.
ORDER
AND NOW, this
~~
day of August, 1997, following argument thereon, it is
ordered and directed as follows:
1. The preliminary objections of the defendants to the preliminary objections of the
plnintiffare DENIED.
2. The preliminary objection of the plaintiff to the defendants' defense of payment in the
nature of a motion for a more specific pleading is SUSTAINED and the defendants are given
twenty (20) days in which to amend in accordance with the opinion filed of even date herewith,
and failing said amcndment, said defense to be stricken.
3, The preliminary objection of the plaintiff in the naturc of a motion for a more specific
i
I
,
i
I
f'"
'~ ':'
,'.'.;
pleading on the defense offraud is SUSTAINED and the dcfendants are given twenty (20) days
within which to amend in accordance with the opinion filcd of cvcn date herewith. Upon failure
\.'.
,
9
'~~'<i
to tirnely file said amendment, the defense shall be stricken,
4. The preliminary objections of the plaintiff at Civil No. 333 for a more specific
pleading with regard to the defenses of estoppel, consent and release are GRANTED. The
defendants are given twenty (20) days within which to file an amended pleading. Upon failure to
file said amendment, said defense(s) to be stricken,
5. The remaining preliminary objections of the plaintiff to the defendants' new matter are
DENIED.
BY THE COURT,
Charles Shurr, Jr., Esquire
For the Plaintiff
Steven E, Grubb, Esquire
For the Defendant
:r\m
10
22, The Failors believe, and therefore aver, that in addition 10 the $25,000,00 payment on
November 21, 1995, they made additional deposils to satisfY the balance of the loan,
23, The Plaintiff issued to Defendants acknowledgments that the mortgage on the
$50,000,00 loan at issue was satisfied, SJ:l: Exhibits Band C.
24. The marking of the mortgage as satisfied is evidence of full payment.
25, Receipt of the mortgage satisfaction constituted a representation from the Bank
regarding the status of the Failors' current indebtedness which the Failors reasonably relied on in
making further decisions regarding their financing,
26, The Bank's actions on having the mortgage marked satisfied constitutes a full and final
release.
6
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CERTIFICATE OF SERVICE
I hereby certifY that I am this day serving a copy of the foregoing document upon the
persons and in the manner indicated below, which service satisfies the requirements of the
Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States mail,
Harrisburg, Pennsylvania, with first-class postage prepaid as follows:
Karen Fery Longenecker. Esquire
Charles N, Schurr, Jr,. Esquire
Bingaman, Hess, Coblentz & Bell, P.C,
660 Penn Square Center
60 I Penn Street
P,O, Box 61
Reading, PA 19603-0061
Date: August 26, 1997
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BINGAMAN, HESS, COBLENTZ & BELL, P.C.
By: David E. Turner, Esquire
Identification No. 19380
660 Penn Square Center
601 Penn street
P.O. Box 61
Reading, PA 19603-0061
(610) 374-8377
Attorney for Plaintiff
Corestates Bank, N.A.
CORESTATES BANK, N.A.,
successor by merger to
MERIDIAN BANK,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No. 97-333 civil
Plaintiff
vs.
STEVEN A. FAILOR and
CYNTHIA L. FAILOR,
Defendants
CIVIL ACTION - LAW
ORDER
AND NOW, this
day of
, 1997, upon
consideration of the Motion of Plaintiff to Compel Defendants'
Answers to Plaintiff's First Set of Interrogatories and Request
for Production of Documents, it is hereby
ORDERED and DECREED that said Motion is granted and
Defendants must file answers to Plaintiff's First Set of
Interrogatories and Request for Production of Documents within
ten (10) days from the date of this Order.
BY THE COURT:
Judge
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Production of Documents Directed to Defendant, Cynthia L. Failor
upon counsel for the Defendants. A true and correct copy of the
June 13, 1997 letter serving discovery, a copy of the Proof of
Service, and a copy of Plaintiff's discovery requests are
attached hereto as Exhibit A and incorporated herein by
reference.
2. Pursuant to Pa.R.C.P. 4006(a) (2) and 4009, Defendants'
answers and objections, if any, to said discovery requests were
due on or about July 13, 1997.
3. Counsel for the Plaintiff subsequently contacted
counsel for the Defendants by telephone to request a response to
the Plaintiff's discovery requests.
4. To date, Defendants have failed to respond to
Plaintiff's discovery requests by way of substantive responses or
objections, although more than thirty (30) days have elapsed
since Defendants were served with Plaintiff's discovery request.
5. Defendants' failure to answer Plaintiff's discovery
requests is delaying the captioned matter and has caused
Plaintiff undue hardship in preparing its case for trial.
6. Plaintiff's case may be prejudiced by not receiving
Defendants' discovery answers.
7. Plaintiff respectfully requests that this Honorable
Court grant its Motion to Compel Defendants' answers to
Plaintiff's discovery requests and respectfully requests that
this Court enter the attached Order.
WHEREFORE, Plaintiff, CoreStates Bank, N.A., successor by
merger to Meridian Bank, respectfully requests that this
.
.
.
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IBgal
DAVID II. ~
CI..DeIOH H. ...... JfIIl,
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MANN I"IJIIIYO L.OHQOCCKUI
SKAWN J. LAU-
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~ O. McMUNIQAL
KKVIN W. Nn<<:)M.
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BINGAMAN, HESS. COBLENTZ & BELL
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
llllO PENN SQUARE CENTER . 150' PENN STREET
P,O, BOX 8\
READING. PENNSYLVANIA' 9l103.Q01l1
TELEPHONE(1l10137~377
FAX /I (11101 37ll-31 05
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J. WV<<)CU.. c:ceL.aHn:
DAVIQ.. .xkIClH-
Of' CClUfoSG.
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June 13, 1997
SHAWN J. &.AU. ",c,
M.l1.CllHOQ.1U1TC ,..
1110 L MNa.TaH PtK&
OCMV HI.L. HJ oeoo.J
C8OI1 TIt..,..
pAJI. (lOW) .a.l'11Z
Thomas J. Weber, Esquire
Goldberg, Katzman & Shipman, P.C.
320 Market Street, Strawberry Square
P,O. Box 1268
Harrisburg, PA 17108-1268
Re: Steven A. Failor and Cynthia L. Failor
Our File No. 1011-536
Dear Mr. Weber:
I am enclosing Plaintiff's First Set of Interrogatories
Addressed to each Defendant in each of the CUmberland County Civil
Actions docketed to numbers 97-333, 97-334, 97-336 and 97-337. I
am also enclosing two Notices of Depositions for your clients,
scheduling their depositions for Monday, July 28, 1997 at my
office.
If I do not receive responses to the enclosed discovery within
the thirty day period allotted by the Pennsylvania Rules of Civil
Procedure, I reserve the right to reschedule the said depositions
for a later date.
Very truly yours,
BINGAMAN, HESS, COBLENTZ & BELL, P.C.
:~;. n.s~l ~",,.
David E. Turner, Esquire
DET:rnny
Enclosures
cc: James T. Grady - CoreStates Bank, N.A. - 6-94-3-130 (w~nc.)
.
BINGAMAN, HESS, COBLENTZ & BELL, P.C.
By: David E. Turner, Esquire
Identification No. 19380
660 Penn Square Center
601 Penn Street
P.O. Box 61
Reading, PA 19603-0061
(610) 374-8377
Attorney for Plaintiff
CORESTATES BANK, N.A.,
successor by merger to
MERIDIAN BANK,
IN TBB COURT OF COMMON PLZAS OF
CUMBERLAND COtlN'l'Y, PBNNSYLVANU
No. 97-333 Civil
97-334 Civil
97-336 civil
97-337 Civil
Plaintiff
vs.
STEVEN A. FAILOR and
CYNTHIA L. FAILOR,
Defendants
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CIVIL ACTION -
PROOF OF SERVICE
COUNTY OF BERKS
COMMONWEALTH OF PENNA.
ss.
I, Malissa N. Young, do depose and say that I served true
and correct of Plaintiff's First Set of Interrogatories and
Request for production of Documents Addressed to Defendants in
each of the above actions were served on June ~, 1997, via
U,S, First class mail addressed as follows:
Thomas J. Weber, Esquire
Goldberg, Katzman & Shipman, P.C.
320 Market Street, Strawberry Square
P.O. Box 1268
Harrisburg, PA 17108-1268
1]'(~. t:_iJ ,'-_ 17 Ii.... ..,;, .--
Mall.ssa N. Young /' .:
Sworn to and subscribed before me
this I,{J, day of
('l~ 1 Y'\ C
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BINGAMAN, HESS, COBLENTZ & BELL, P.C.
By: David E. Turner, Esquire
Identification No. 19380
660 Penn Square Center
601 Penn Street
P.O. Box 61
Reading, PA 19603-0061
(610) 374-8377
Attorney for Plaintiff
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IN THE COURT OP COMMON PLEAS OP
CUHBERLAlfD COUNTY, PENNSYLVANIA
CORESTATES BANK, N.A.,
successor by merger to
MERIDIAN BANK,
No. 97-333 civil
Plaintiff
.
.
vs.
STEVEN A. FAILOR and
CYNTHIA L. FAILOR,
Defendants
CIVIL ACTION - LAW
PLAINTIFF'S FIRST SET OP INTERROGATORIES
AND REQUEST FOR PRODUCTION OP DOCUMENTS
DIRECTED TO DEFENDANT. STEVEN A. FAILOR
TO: Steven A. Failor
You are hereby requested to answer the following Interrogato-
ries in writing and under oath, and to respond to the following
Request for Production of Documents, within thirty (30) days after
service of the Interrogatories upon you in accordance with
Pennsylvania Rules of Civil Procedure 4001 n~. These Interrog-
atories and Requests are deemed to be continuing in nature and any
information obtained by you subsequent to the filing of your
answers to these Interrogatories and Requests is to be supplied by
the filing of supplemental answers. Further, both the party to
whom these Interrogatories and Requests are addressed and any
expert who answers such Interrogatories has a duty to supplement
the response if he or she knows that the response was incorrect
when made or if he or she knows that the response although correct
when made is no longer true.
Any Interrogatories which directly require an answer showing
the mental impressions of the party's attorney or his conclusions,
112567.1
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.
opinions, memoranda, notes or summaries, legal research or legal
theories need not be answered. Further, any Interrogatory which
requests an answer which would require the representative ot a
party, other than the party I s attorney, to disclose his mental
impressions, conclusions or opinions respecting the value or merit
ot a claim or de tense or respecting strategy or tactics need not be
answered. All other information concerning statements, reports,
memoranda, correspondence and other writings, even though made or
secured in anticipation of litigation or in preparation tor trial,
must be turnished.
All answers should be set forth in the space tollowing each
numbered Interrogatory. If that space is inadequate for this
purpose, the answer may be set forth on a supplemental sheet
attached to the answer, clearly marked to indicate the number of
the Interrogatory whose answer is being supplemented.
DEFINITIONS AND INSTRUCTIONS.
Unless negated by the context of the interrogatory, the
following definitions are to be considered to be applicable to all
interrogatories contained herein:
1. The term IIdocumentll means and refers to all original
writings of any nature whatsoever and all drafts and all nonidenti-
cal copies thereof and includes, but is not limited to, correspon-
dence, telegrams, other written communications, data processing
storage units, tapes, contracts, agreements, notes, schedules,
tacsimiles, prints, drawings, specifications, summaries,
compilations, analyses, memoranda, indexes, work papers, studies,
surveys, internal and external reports, charts, diaries, logs,
calendars, film, photographs, minutes of meetings, invoices,
receipts, bills, purchase orders, orders, confirmations, bills of
lading, deli very receipts and any and all other documents as
defined in Rule 4009 in the Pennsylvania Rules of Civil Procedure.
In all cases where originals and non-identical copies are
available, IIdocumentll also means copies thereof.
2. The terms "Plaintiffll means and refers to CoreStates Bank,
N.A., successor by merger to Meridian Bank, the plaintiff herein.
3. The term "Defendant" means and refers to Steven A. Failor
and Cynthia L. Failor, individually, jointly and/or trading as Fine
Line Restorations, Defendants herein.
4. The term IIpersonll means and refers to a natural person,
governmental agency, department or body, corporation, company,
trust, sole proprietorship, estate, partnership, joint adventure,
or any other entity, including any officer, director, employee,
owner, partner, executor, trustee, agent, representative or
successor or assignee thereof.
112567.1
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5. The terms "relating to", IIconnected with" and "in
connection with" mean constituting, comprising, containing, setting
forth, showing, disclosing, describing, explaining, summarizing,
concerning or referring to, directly or indirectly.
6. The conjunctions "andll and 1I0r" shall be individually
interpreted in every instance as meaning "and/or" and shall not be
interpreted disjunctively to exclude any document otherwise within
the scope of any request.
7. As used herein, all words used in their singular form
shall be deemed to include the words in their plural form.
8. Where an identification of a person is requested herein,
give his or her name, present or last known address (and if last
known address, the last known date thereof), present and past
positions, the name of each company which employed each person and
each position, the inclusive dates of such employment during t~e
time period applicable to these interrogatories, and the person
whom he or she was representing or acting for, if any.
9. When identification of a document is requested herein,
give the type of document, (e.g., memorandum, telegram, agreement),
title of file and identifying number and symbol, subject matter and
name and address of the custodian. If any such document was, but
is no longer, in Defendant's possession or subject to its custody
or control, state what disposition was made of it, the date
thereof, identify the person or persons responsible for such
disposition, and the policy, rule, order or other authority by
which such disposition was made. For documents to which Defendant
had access but which were and are not in the possession, custody,
or control of Defendant, set forth in addition to the information
indicated above, the circumstances under which Defendant had access
to the documents. In addition to identification of a document,
Defendant shall furnish simultaneously with the filing of his
answers to these Interrogatories, and the related Request for
Production of Documents, such document for inspection and copying
by Plaintiff, at the offices of its counsel, Bingaman, Hess,
Coblentz & Bell, P.C., 660 Penn Square Center, 601 Penn Street,
P.O. Box 61, Reading, Pennsylvania 19603, provided that such
document is segregated and identified to each particular interroga-
tory.
10. When identification of an oral statement, discussion,
conversation or conference (use herein of anyone of which shall be
deemed to include all others) is requested, identify the person
making such statement, the person to whom such statement was made,
and all other persons present at the time of such statement; state
the date of such statement; state the place where such statement
was made; or, if by telephone, the persons participating in the
112567.1
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#,
telephone call and the person making the telephone call, and the
places where the person participating in the call was located; and
state the substance of such statement.
11. When identification of place or location is requested
state the street, house or apartment number, political subdivision
(e.g., township, borough, city, etc.), county and state or foreign
country of such place or location.
12. The term "communication" means and refers to any oral
statement, discussion, conversation or conference (whether face to
face or by telephone or in any document) by, for, between or among
one or more persons.
13. "Describe II and/or "state" mean to set forth fully and
unambiguously every fact relevant to the answer called for by the
interrogatory or by the Defendant, their employees, agents or
representatives have knowledge.
14. Identify separately with each answer to each interrogato-
ry all sources of information provided in such answer with a
description sufficient to use in a subpoena.
15. Each document produced should be separately marked or
identified as relating to the specific request.
16. If you claim that the attorney-client, attorney work
product, or any other privilege is applicable to any document which
is sought by this request, you shall, with respect to that
document:
a. state the date of the document;
b. Identify each and every author of the documents;
c. Identify each and every other person who prepared or
participated in the preparation of the document;
d. Identify each and every person who received the document;
e. Identify each and every person from whom the document was
received;
f. State the present location of the document and all copies
thereof;
g. Identify each and every person who has ever had posses-
sion, custody or control of the document or any copy thereof; and
h. Provide sufficient further information concerning the
document and the circumstances thereof to explain the claim of
privilege and to permit the adjudication of the propriety.
112567.1
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17. Whenever a date, amount or other computation or figure is
requested, the exact date, amount or other computation or figure is
to be given unless it is not known; and then, the approximate date,
amount or other computation or figure should be given or the best
estimate thereof; and the answer shall state that the date, &mount
or other computation or figure is an estimate or approximation.
18. No answer is to be left blank. If the answer to an
interrogatory or subparagraph of an interrogatory is "none" or
"unknown", such statement must be written in the answer. If the
question is inapplicable, "NIAll must be written in the answer. If
an answer is omitted because of the claim of privilege, the basis
of privilege is to be stated.
19. These interrogatories are continuing, and any information
secured subsequent to the filing of your answers which would have
been includable in the answers had it been known or available, are
to be supplied by supplemental answers.
INTERROGATORIES
1. Describe in detail all payments, which the Defendants
paid to the Plaintiff on behalf of the outstanding Note. Include
who tendered the payments; the exact amount of the payments; method
of payment; date of payments; place and time of payments; the
outstanding balance of the Note after the last payment was made;
and the account(s) from which these payments were made, including
account number(s), type of account(s), and with whom the account(s)
were maintained.
112567.1
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5. Describe in detail the alleged real estate transaction
that the Defendants referred to in their Answer that allegedly led
to the filing of the Mortgage Satisfaction Piece. Include the
place, date, and time of this transaction; the identity of all
persons and entities, who were involved or witnessed this alleged
real estate transaction; the identity of any and all documents
related to this alleged real estate transaction; and the amount of
any and all monies or other consideration, tangible or intangible,
the Defendants received in connection with this alleged real estate
transaction.
6. Describe in detail the payments made on behalf of the
outstanding Note by the Defendants to the Plaintiff, which
allegedly resulted in the Plaintiff filing the Mortgage
Satisfaction Piece. Include who tendered these payments; the exact
amount of the payments; method of payment; date of payments; place
and time of payments; identity of all receipts and records of these
payments; the type of record and source of the record; all
information contained on any checks or other payment receipts; the
account(s) from which these payments were made, including account
number(s), type of account(s), and with whom the account(s) were
maintained; and the identity of any witnesses to these payments.
7. Describe in detail Defendants' alleged defense of payment
set forth as New Matter in Defendants' Answer to Plaintiff 's
Complaint. Include the identity of all witnesses to this defense
and all documents which in any way relate to this alleged defense.
112567.1
8. Describe in detail Defendants' alleged defense of
estoppel set forth as New Matter in Defendants' Answer to
Plaintiff's Complaint. Include the identity of all witnesses to
this defense and all documents which in any way relate to this
alleged defense.
9. Describe in detail Defendants' alleged defense of consent
set forth as New Matter in Defendants' Answer to Plaintiff's
Complaint. Include the identity of all witnesses to this defense
and all documents which in any way relate to this alleged defense.
10. Describe in detail Defendants' alleged defense of release
set forth as New Matter in Defendants' Answer to plaintiff' s
Complaint. Include the identity of all witnesses to this defense
and all documents which in any way relate to this alleged defense.
112567 .1
.
14. With reference to paragraph 13, state the content of the
testimony of each witness including the relevant factual assertions
to which that witness will testify.
t
~
.~
15. With respect to paragraph 14 of these Interrogatories,
state the factual basis for each and every factual assertion which
will be testified to by each and every witness set forth in
paragraph 9 above.
16. If you, your representatives, attorneys, consultants,
agents or any other persons conducted any interviews concerning
this action and/or its subject matter, with any party to this
action, or any other person or witness, then kindly state:
(a) The name and address of the person who was interviewed
including the name and address of each person's employer;
(b) The date each interview was given;
112567.1
.
18. Have you or anyone acting on your behalf obtained from
any person(s) any statement(s) (as defined by the Rules of civil
Procedure) concerning this action or its subject matter?
~
If so, identify:
(a) each such person;
(b) when, where, by whom and to whom each statement was
made, and whether it was reduced to writing or otherwise recorded;
(c) any person(s) who has custody of any such statement
that were reduced in writing or otherwise recorded; and
(d) the exact nature and content of every such state-
ment.
112567.1
.
REOUEST FOR PRODUCTION OF DOCUMENTS
INSTRUCTIONS:
1. The requests listed below shall be deemed to be continu-
ing and require prompt supplemental production of documents in the
event that Defendant or their counsel learns of additional
documents not produced on the scheduled production date.
Supplemental production shall be made from time to time, but in no
event later than three (3) business days after such further
documents are discovered.
2. Each request should be responded to separately and as
completely as possible. The fact that an investigation is
continuing or that discovery is not complete shall not constitute
cause for failure to response to each request. The omission of any
document from the response shall be deemed a representation that
the document was not in the possession, custody or control of
Plaintiff or his attorney at the time of production of documents.
3. In the event that any Document sought by these requests
has been destroyed or is discarded, that Document is to be
identified by stating:
(a) Any address or addressee;
(b) Any indicated or blind copy;
(c) The Document's date, subject matter, number of pages
and attachments or appendices;
(d) All persons to whom the Document was distributed,
shown or explained;
(e) Its date of destruction or discard, manner of
destruction or discard and the reason for destruction or discard;
and
(f) The persons authorizing and carrying out such
destruction or discard.
4. The term "document II means and refers to all original
writings of any nature whatsoever and all drafts and all nonidenti-
cal copies thereof and includes, but is not limited to, correspon-
dence, telegrams, other written communications, data processing
storage units, tapes, contracts, agreements, notes, schedules,
facsimiles, prints, drawings, specifications, summaries,
compilations, analyses, memoranda, indexes, work papers, studies,
surveys, internal and external reports, charts, diaries, logs,
calendars, film, photographs, minutes of meetings, invoices,
receipts, bills, purchase orders, orders, confirmations, bills of
lading, delivery receipts and any and all other documents as
defined in RUle 4009 in the Pennsylvania Rules of Civil Procedure.
In all cases where originals and non-identical copies are
available, "document" also means copies thereof.
112567.1
.
, .
5. The term IIPlaintiff" means and refers to CoreStates Bank,
N.A., successor by merger to Meridian Bank.
6. The term IIDefendant" means and refers to steven A. Failor
and cynthia L. Failor, individually, jointly and/or trading as Fine
Line Restorations, Defendants herein.
t
:,
7. The term "person" means and refers to a natural person,
governmental agency, department or body, corporation, company,
trust, sole proprietorship, estate, partnership, joint adventure,
or any other entity, including any officer, directory, employee,
owner, partner, executor, trustee, agent, representative or
successor or assign thereof.
8. The terms IIrelating toll, "connected with" and "in
connection withll mean constituting, comprising, containing, setting
forth, showing, disclosing, describing, explaining, summarizing,
concerning or referring to, directly or indirectly.
9. The conjunctions "andll and "or" shall be individually
interpreted in every instance as meaning lIand/or" and shall not be
interpreted disjunctively to exclude any document otherwise within
the scope of any request.
10. As used herein, all words used in their singular form
shall be deemed to include the words in their plural form.
11. Where an identification of a person is requested herein,
give his or her name, present or last known address (and if last
known address, the last known date thereof), present and past
positions, the name of each company which employed each person and
each position, the inclusive dates of such employment during the
time period applicable to these interrogatories, and the person
whom he or she was representing or acting for, if any.
12. When identification of a document is requested herein,
give the type of document, (e.g., memorandum, telegram, agreement),
title of file and identifying number and symbol, subject matter and
name and address of the custodian.
If any such document was, but is no longer, in Defendant's
possession or subject to its custody or control, state what
disposition was made of it, the date thereof, identify the person
or persons responsible for such disposition, and the policy, rule,
order or other authority by which such disposition was made. For
documents which Defendant had access to but which were and are not
in the possession, custody, or control of Defendant, set forth in
addition to the information indicated above, the circumstances
under which Defendant had access to the documents, In addition to
identification of a document, Defendant shall furnish simultaneous-
ly with the filing of its answers to these Interrogatories, and the
related Request for Production of Documents, such document for
112567.1
.
inspection and copying by Plaintiff, at the offices of their
counsel, Bingaman, Hess, Coblentz & Bell, 660 Penn Square Center,
601 Penn street, P.O. Box 61, Reading, Pennsylvania 19603, provided
that such document is segregated and identified to each particular
interrogatory.
13. When identification of an oral statement, discussion,
conversation or conference (use herein of anyone of which shall be
deemed to include all others) is requested, identify the person
making such statement, the person to whom such statement was made,
and all other persons present at the time of such statement; state
the date of such statement; state the place where such statement
was made; or, if by telephone, the persons participating in the
telephone call and the person making the telephone call, and the
places where the person participating in the call was located; and
state the substance of such statement.
14. When identification of place or location is requested
state the street, house or apartment number, political subdivision
(e.g., township, borough, city, etc.), county and state or foreign
country of such place or location.
15. The term "communication" means and refers to any oral
statement, discussion, conversation or conference (whether face to
face or by telephone or in any document) by, for, between or among
one or more persons.
16. IIDescribe" and/or "state" mean to set forth fully and
unambiguously every fact relevant to the answer called for by the
interrogatory or by the defendant, his employees agents or
representatives have knowledge.
17. Identify separately with each answer to each interrogato-
ry all sources of information provided in such answer with the
description sufficient to use in a subpoena.
18. Each document produced should be separately marked or
identified as relating to the specific request.
19. If you claim that the attorney-client, attorney work
product, or any other privilege is applicable to any document which
is sought by this request, you shall, with respect to that
document:
a. State the date of the document;
b. Identify each and every author of the documents;
c. Identify each and every other person who prepared or
participated in the preparation of the document;
d. Identify each and every person who received the document;
e. Identify each and every person from whom the document was
received;
f. State the present location of the document and all copies
thereof; .
112567.1
.
g. Identify each and every person who has ever had posses-
sion, custody or control of the document or any copy thereof; and
h. Provide sufficient further information concerning the
document and the circumstances thereof to explain the claim of
privilege and to permit the adjudication of the propriety.
i. Any addressor or addressee;
j. Any indicated or blind copy;
k. The Document's date, subject matter, number of pages and
attachments or appendices;
l. All persons to whom the Document was distributed, shown
or explained;
m. Its present custodian; and
n. The nature of the privilege asserted.
DOCUMENTS REQUESTED:
1. Provide copies of any and all Documents and documentary
exhibits in the above-captioned proceeding which you intend to use
at trial, whether or not you intend to offer them into evidence.
2. Copies of any and all documentary material in the
possession of Defendant which supports or relates to the claims or
defenses asserted in this action by Plaintiff, including, but not
limited to, bank loan and deposit account statements, check
register(s), checks, deposit and withdrawal slips for the period
1994 to the present.
3. All documents related to any allegations contained in the
Defendant's Answer and New Matter.
4.
experts
whether
All opinions or reports prepared for Defendant by any
with respect to the subject matter of this litigation,
or not you intend to offer them into evidence.
5. All resumes, curriculum vitaes or qualification
briefs/summaries of any experts engaged by Defendant to provide
expert testimony in this matter.
6. Copies of all documents identified, described, or
otherwise referred to in the foregoing answers to Interrogatories.
Dated: (..jr-z(r!
BINGAMAN, HESS, COBLENTZ , BELL, P.C.
r----., r: c;.'.-7
BY,A?",--()? 0',v--
ba~id E. Turner, Esquire
Attorneys for Plaintiff
112567.1
.
opinions, memoranda, notes or summaries, legal research or legal
theories need not be answered. Further, any Interrogatory which
requests an answer which would require the representative of a
party, other than the party's attorney, to disclose his mental
impressions, conclusions or opinions respecting the value or merit
of a claim or defense or respecting strategy or tactics need not be
answered. All other information concerning statements, reports,
memoranda, correspondence and other writings, even though made or
secured in anticipation of litigation or in preparation for trial,
must be furnished.
All answers should be set forth in the space following each
numbered Interrogatory. If that space is inadequate for this
purpose, the answer may be set forth on a supplemental sheet
attached to the answer, clearly marked to indicate the number of
the Interrogatory whose answer is being supplemented.
DEFINITIONS AND INSTRUCTIONS.
Unless negated by the context of the interrogatory, the
following definitions are to be considered to be applicable to all
interrogatories contained herein:
1. The term IIdocumentll means and refers to all original
writings of any nature whatsoever and all drafts and all nonidenti-
cal copies thereof and includes, but is not limited to, correspon-
dence, telegrams, other written communications, data processing
storage units, tapes, contracts, agreements, notes, schedules,
facsimiles, prints, drawings, specifications, summaries,
compilations, analyses, memoranda, indexes, work papers, studies,
surveys, internal and external reports, charts, diaries, logs,
calendars, film, photographs, minutes of meetings, invoices,
receipts, bills, purchase orders, orders, confirmations, bills of
lading, delivery receipts and any and all other documents as
defined in Rule 4009 in the Pennsylvania Rules of civil Procedure.
In all cases where originals and non-identical copies are
available, IIdocumentll also means copies thereof.
2. The terms "Plaintiff" means and refers to CoreStates Bank,
N.A., successor by merger to Meridian Bank, the Plaintiff herein.
3. The term IIDefendant" means and refers to Steven A. Failor
and Cynthia L. Failor, individually, jointly and/or trading as Fine
Line Restorations, Defendants herein.
4. The term IIperson" means and refers to a natural person,
governmental agency, department or body, corporation, company,
trust, sole proprietorship, estate, partnership, joint adventure,
or any other entity, including any officer, director, employee,
owner, partner, executor, trustee, agent, representative or
successor or assignee thereof.
112567.1
.
5. The terms "relating to", IIconnected withll and "in
connection with" mean constituting, comprising, containing, setting
forth, showing, disclosing, describing, explaining, summarizing,
concerning or referring to, directly or indirectly.
6. The conjunctions lIandll and 1I0r" shall be individually
interpreted in every instance as meaning lIand/or" and shall not be
interpreted disjunctively to exclude any document otherwise within
the scope of any request.
7. As used herein, all words used in their singular form
shall be deemed to include the words in their plural form.
8. Where an identification of a person is requested herein,
give his or her name, present or last known address (and if last
known address, the last known date thereof), present and past
positions, the name of each company which employed each person and
each position, the inclusive dates of such employment during the
time period applicable to these interrogatories, and the person
whom he or she was representing or acting for, if any.
9. When identification of a document is requested herein,
give the type of document, (e.g., memorandum, telegram, agreement),
title of file and identifying number and symbol, subject matter and
name and address of the custodian. If any such document was, but
is no longer, in Defendant's possession or subject to its custody
or control, state what disposition was made of it, the date
thereof, identify the person or persons responsible for such
disposition, and the policy, rule, order or other authority by
which such disposition was made. For documents to which Defendant
had access but which were and are not in the possession, custody,
or control of Defendant, set forth in addition to the information
indicated above, the circumstances under which Defendant had access
to the documents. In addition to identification of a document,
Defendant shall furnish simultaneously with the filing of his
answers to these Interrogatories, and the related Request for
Production of Documents, such document for inspection and copying
by Plaintiff, at the offices of its counsel, Bingaman, Hess,
Coblentz & Bell, P.C., 660 Penn Square center, 601 Penn Street,
P.O. Box 61, Reading, Pennsylvania 19603, provided that such
document is segregated and identified to each particular interroga-
tory.
10. When identification of an oral statement, discussion,
conversation or conference (use herein of anyone of which shall be
deemed to include all others) is requested, identify the person
making such statement, the person to whom such statement was made,
and all other persons present at the time of such statement; state
the date of such statement; state the place where such statement
was made; or, if by telephone, the persons participating in the
112567.1
.
I
I
I
I
I
I
I
I
I
I
i
telephone call and the person making the telephone call, and the
places where the person participating in the call was located; and
state the substance of such statement,
11. When identification of place or location is requested
state the street, house or apartment number, political subdivision
(e.g., township, borough, city, etc.), county and state or foreign
country of such place or location.
12. The term "communication" means and refers to any oral
statement, discussion, conversation or conference (whether face to
face or by telephone or in any document) by, for, between or among
one or more persons.
13. IIDescribell and/or "state"
unambiguously every fact relevant to
interrogatory or by the Defendant,
representatives have knowledge.
14. Identify separately with each answer to each interrogato-
ry all sources of information provided in such answer with a
description sufficient to use in a subpoena.
mean to set forth fully and
the answer called for by the
their employees, agents or
15. Each document produced should be separately marked or
identified as relating to the specific request.
16. If you claim that the attorney-client, attorney work
product, or any other privilege is applicable to any document which
is sought by this request, you shall, with respect to that
document:
a. state the date of the document;
b. Identify each and every author of the documents;
c. Identify each and every other person who prepared or
participated in the preparation of the document;
d. Identify each and every person who received the document;
e. Identify each and every person from whom the document was
received;
f. State the present location of the document and all copies
thereof;
g. Identify each and every person who has ever had posses-
sion, custody or control of the document or any copy thereof; and
h. Provide sufficient further information concerning the
document and the circumstances thereof to explain the claim of
privilege and to permit the adjudication of the propriety.
112567.1
.
2. Identify all receipts and records of any payments, which
the Defendants paid to the Plaintiff on behalf of the outstanding
Note. Include the type and source of the record; all information
contained on any checks or other payment receipts; and the
account(s) from which these payments were made, including account
number(s), type of account(s), and with whom the account(s) were
maintained.
3. Identify any witnesses to any payments the Defendants
made to the Plaintiff on behalf of the outstanding Note.
4. Describe in detail how the Note was allegedly satisfied.
Include the exact amount of consideration paid to the Plaintiff to
satisfy this debt; who tendered this satisfaction; the method of
satisfaction; date of satisfaction; the place and time of
satisfaction; all information contained on any checks or other
payment receipts, which allegedly satisfied this debt; and the
account(s) from which this satisfaction was tendered, including
account number(s), type of account(s), and with whom the account(s)
were maintained.
112567.1
8. Describe in detail Defendants' alleged defense of
estoppel set forth as New Matter in Defendants' Answer to
plaintiff's complaint. Include the identity of all witnesses to
this defense and all documents which in any way relate to this
alleged defense.
9. Describe in detail Defendants' alleged defense of consent
set forth as New Matter in Defendants' Answer to plaintiff I s
complaint. Include the identity of all witnesses to this defense
and all documents which in any way relate to this alleged defense.
10. Describe in detail Defendants' alleged defense of release
set forth as New Matter in Defendants I Answer to plaintiff's
complaint. Include the identity of all witnesses to this defense
and all documents which in any way relate to this alleged defense.
112567.1
.
.
11. Describe in detail Defendants' alleged defense of fraud
set forth as New Matter in Defendants I Answer to Plaintiff's
Complaint. Include the identity of all witnesses to this defense
and all documents which in any way relate to this alleged defense.
t
12. state the names and addresses of all persons known to you
or your attorneys who know any relevant fact pertaining to the
subject matter of this litigation.
13. state the name and address of any and all individuals
whom you expect to a call as witnesses at trial.
112567.1
17. State the name and address of each person whom you expect
to call as an expert witness at trial and state the subject on
which the expert is expected to testify:
(a) For each such expert, have the expert state the
substance of the facts and opinion to which the expert is expected
to testify and summarize the grounds for each such opinion;
(b) Set forth the qualifications of each expert, listing
the schools attended, the years of attendance, degrees received,
and experience in any particular field of specialization or
expertise; and
(c) For each expert identified above, please attach his.
reports signed by him.
112567.1
.. '
REOUEST FOR PRODUCTION OF DOCUMENTS
INSTRUCTIONS:
1. The requests listed below shall be deemed to be continu-
ing and require prompt supplemental production of documents in the
event that Defendant or their counsel learns of additional
documents not produced on th~ scheduled production date.
Supplemental production shall be made from time to time, but in no
event later than three (3) business days after such fllrther
documents are discovered.
2. Each request should be responded to separately and as
completely as possible. The fact that an investigation is
continuing or that discovery is not complete shall not constitute
cause for failure to response to each request. The omission of any
document from the response shall be deemed a representation that
the document was not in the possession, custody or control of
Plaintiff or his attorney at the time of production of documents.
3. In the event that any Document sought by these requests
has been destroyed or is discarded, that Document is to be
identified by stating:
(a) Any address or addressee;
(b) Any indicated or blind copy;
(c) The Document's date, subject matter, number of pages
and attachments or appendices;
(d) All persons to whom the Document was distributed,
shown or explained;
(e) Its date of destruction or discard, manner of
destruction or discard and the reason for destruction or discard;
and
(f) The persons authorizing and carrying out such
destruction or discard.
4. The term "document" means and refers to all original
writings of any nature whatsoever and all drafts and all nonidenti-
cal copies thereof and includes, but is not limited to, correspon-
dence, telegrams, other written communications, data processing
storage units, tapes, contracts, agreements, notes, schedules,
facsimiles, prints, drawings, specifications, summaries,
compilations, analyses, memoranda, indexes, work papers, studies,
surveys, internal and external reports, charts, diaries, logs,
calendars, film, photographs, minutes of meetings, invoices,
receipts, bills, purchase orders, orders, confirmations, bills of
lading, delivery receipts and any and all other documents as
defined in RUle 4009 in the Pennsylvania Rules of Civil Procedure.
In all cases where originals and non-identical copies are
available, "document" also means copies thereof.
112567.1
. , - .... -_.'''___'W~''"''
, '
.
5. The term "Plaintiff" means and refers to CoreStates Bank,
N.A., successor by merger to Meridian Bank.
6. The term "Defendant" means and refers to Steven A. Failor
and Cynthia L. Failor, individually, jointly and/or trading as Fine
Line Restorations, Defendants herein.
7. The term "person" means and refers to a natural person,
governmental agency, department or body, corporation, company,
trust, sole proprietorship, estate, partnership, joint adventure,
or any other entity, including any officer, directory, employee,
owner, partner, executor, trustee, agent, representative or
successor or assign thereof.
8. The terms "relating to", "connected with" and "in
connection with" mean constituting, comprising, containing, setting
forth, showing, disclosing, describing, explaining, summarizing,
concerning or referring to, directly or indirectly.
9. The conjunctions "and" and "or" shall be individually
interpreted in every instance as meaning "and/or" and shall not be
interpreted disjunctively to exclude any document otherwise within
the scope of any request.
10. As used herein, all words used in their singular form
shall be deemed to include the words in their plural form.
11. Where an identification of a person is requested herein,
give his or her name, present or last known address (and if last
known address, the last known date thereof), present and past
positions, the name of each company which employed each person and
each position, the inclusive dates of such employment during the
time period applicable to these interrogatories, and the person
whom he or she was representing or acting for, if any.
12. When identification of a document is requested herein,
give the type of document, (e.g., memorandum, telegram, agreement),
title of file and identifying number and symbol, subject matter and
name and address of the custodian.
If any such document was, but is no longer, in Defendant's
possession or subject to its custody or control, state what
disposition was made of it, the date thereof, identify the person
or persons responsible for such disposition, and the policy, rule,
order or other authority by which such disposition was made. For
documents which Defendant had access to but which were and are not
in the possession, custody, or control of Defendant, set forth in
addition to the information indicated above, the circumstances
under which Defendant had access to the documents. In addition to
identification of a document, Defendant shall furnish simultaneous-
ly with the filing of its answers to these Interrogatories, and the
related Request for Production of Documents, such document for
112567.1
"'.
.
inspection and copying by Plaintiff, at the offices of their
counsel, Bingaman, Hess, Coblentz & Bell, 660 Penn Square Center,
601 Penn Street, P.O. Box 61, Reading, Pennsylvania 19603, provided
that such document is segregated and identified to each particular
interrogatory.
13. When identification of an oral statement, discussion,
conversation or conference (use herein of anyone of which shall be
deemed to include all others) is requested, identify the person
making such statement, the person to whom such statement was made,
and all other persons present at the time of such statement; state
the date of such statement; state the place where such statement
was made; or, if by telephone, the persons participating in the
telephone call and the person making the telephone call, and the
places where the person participating in the call was located; and
state the substance of such statement.
14. When identification of place or location is requested
state the street, house or apartment number, political subdivision
(e.g., township, borough, city, etc.), county and state or foreign
country of such place or location.
15. The term "communication" means and refers to any oral
statement, discussion, conversation or conference (whether face to
face or by telephone or in any document) by, for, between or among
one or more persons.
16. "Describe" and/or "state" mean to set forth fully and
unambiguously every fact relevant to the answer called for by the
interrogatory or by the defendant, his employees agents or
representatives have knowledge.
17. Identify separately with each answer to each interrogato-
ry all sources of information provided in such answer with the
description sufficient to use in a subpoena.
18. Each document produced should be separately marked or
identified as relating to the specific request.
19. If you claim that the attorney-client, attorney work
product, or any other privilege is applicable to any document which
is sought by this request, you shall, with respect to that
document:
a. State the date of the document;
b. Identify each and every author of the documents;
c. Identify each and every other person who prepared or
participated in the preparation of the document;
d. Identify each and every person who received the document;
e. Identify each and every person from whom the document was
received;
f. State the present location of the document and all copies
thereof;
112567.1
. .
-
.
.
g. Identify each and every person who has ever had posses-
sion, custody or control of the document or any copy thereof; and
h. provide sufficient further information concerning the
document and the circumstances thereof to explain the claim of
privilege and to permit the adjudication of the propriety.
i. Any addressor or addressee;
j. Any indicated or blind copy;
k. The Document's date, subject matter, number of pages and
attachments or appendices;
1. All persons to whom the Document was distributed, shown
or explained;
m. Its present custodian; and
n. The nature of the privilege asserted.
DOCUMENTS REQUESTED:
1. Provide copies of any and all Documents and documentary
exhibits in the above-captioned proceeding which you intend to use
at trial, whether or not you intend to offer them into evidence.
2. Copies of any and all documentary material in the
possession of Defendant which supports or relates to the claims or
defenses ass~rted in this action by Plaintiff, including, but not
limited to, bank loan and deposit account statements, check
register(s), checks, deposit and withdrawal slips for the period
1994 to the present.
3. All documents related to any allegations contained in the
Defendant's Answer and New Matter.
4.
experts
whether
All opinions or reports prepared for Defendant by any
with respect to the subject matter of this litigation,
or not you intend to offer them into evidence.
5. All resumes,
briefs/summaries of any
expert testimony in this
curriculum vitaes or qualification
experts engaged by Defendant to provide
matter.
6. Copies of all documents identified, described, or
otherwise referred to in the foregoing answers to Interrogatories.
Dated: Gf~/q,
BINGAMAN, HESS, COBLENTZ & BELL, P.C.
- ()rv7-
(J... /?
D ld- E. Turner, Esquire--
Attorneys for Plaintiff
By
112567.1
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bJAUG 2 B 1997
BINGAMAN, HESS, COBLENTZ & BELL, P.C.
By: David E. Turner, Esquire
Identification No. 19380
660 Penn Square Center
601 Penn Street
P.O. Box 61
Reading, PA 19603-0061
(610) 374-8377
Attorney for Plaintiff
Core States Bank, N.A.
CORESTATES BANK, N.A.,
successor by merger to
MERIDIAN BANK,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No. 97-333 Civil
Plaintiff
vs.
STEVEN A. FAILOR and
CYNTHIA L. FAILOR,
Defendants
CIVIL ACTION - LAW
CERTIFICATE OF SERVICE
I, David E. Turner, Esquire, hereby certify that a true and
correct copy of the foregoing Motion of Plaintiff to Compel
Defendants' Answers to Plaintiff's First Set of Interrogatories
and Request for Production of Documents was mailed on
.l" ,4(, ,,',; '\ by United States first class mail, postage prepaid
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upon the following party:
Thomas J. Weber, Esquire
Goldberg, Katzman & Shipman, P.C.
320 Market Street, Strawberry square
P.O. Box 1268
HarriSburg, PA 17108-1268
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Dav d E. Turne ,
l Lof
Esquire
DATED: )? ,i c..', )
8. Denied. After reasonable investigation plaintiff is
without knowledge or information sufficient to form a belief as to
the truth of the averments contained in this paragraph 8, and thus,
they are hereby denied. strict proof is demanded at the time of
trial, if relevant, which relevancy is strictly denied. By way of
further response, if Defendants negotiated any checks at the
offices of the plaintiff, they did so voluntarily and of their own
free will and not due to any control or direction by the plaintiff
over the Defendants.
9. Denied. After reasonable investigation Plaintiff is
without knowledge or information sufficient to form a belief as to
the truth of the averments contained in this paragraph 9, and thus,
they are hereby denied. strict proof is demanded at the time of
trial, if relevant, which relevancy is strictly denied. By way of
further response, if Defendants set-up an appointment with a bank
representative, they did so voluntarily and by their own free will.
10. Denied. The plaintiff believes and, therefore, avers
that its representatives conducted themselves appropriately and in
accordance with applicable law at all times in dealing with the
Defendants and never in any way made any misrepresentations or
otherwise misled the Defendants.
11. Denied. It is specificallY denied that the plaintiff in
any way exercised any direction or control over the Defendants, and
if the Defendants borrowed money by pledging their real estate as
collateral, they did so voluntarily and of their own free will.
119815.1
12. Denied.
The Plaintiff incorporates by reference its
reply to Paragraph 11 above as though it were set forth in full
herein. By way of further response, after reasonable investigation
Plaintiff is without knowledge or information sufficient to form a
belief as to the truth of the averments contained in this Paragraph
12, and thus, they are hereby denied. strict proof is demanded at
the time of trial, if relevant, which relevancy is strictly denied.
13. Denied. If the Defendants deposited the sum set forth in
this Paragraph 13 to the Plaintiff, such deposit was not made on
behalf of the loan obligation which is the subject of this
li tigation. To the contrary, Plaintiff contends Defendants did not
satisfy the loan obligation set forth in the Complaint. In
addition, after reasonable investigation Plaintiff is without
knowledge or information sufficient to form a belief as to the
truth of the averments contained in this Paragraph 13, and thus,
they are hereby denied. Strict proof is demanded at the time of
trial, if relevant, which relevancy is strictly denied.
14 - 15. Admitted in part and denied in part.
It is
specifically admitted that the sum of $25,000.00 was paid to the
Plaintiff on November 21, 1995 and applied to the outstanding
balance due on the loan which is the subject of this litigation.
However, it is specifically denied that this payment in any way
reduces the amount now outstanding under this loan, as this was a
revolving loan facility, and the Defendants sUbsequently re-
advanced the sums they had previously paid to the Plaintiff. By
way of further response, the writing referred to in Paragraph 14 is
119815.1
a document which speaks for itself and any attempt to paraphrase
the same is hereby denied. To the extent the averments of
Paragraph 14 state conclusions of law, they also are hereby denied.
strict proof is demanded at the time of trial, if relevant, which
relevancy is strictly denied.
16 - 17. Denied. After reasonable investigation Plaintiff is
without knowledge or information sufficient to form a belief as to
the truth of the averments contained in Paragraphs 16 and 17, and
thus, they are hereby denied. strict proof is demanded at the time
of trial, if relevant, which relevancy is strictly denied. By way
of further response, the Plaintiff consistently provided the
Defendants with timely bank statements and other information
regarding their deposit and loan accounts. Furthermore, the
Plaintiff believes, and therefore, avers that the Defendants were
not under any type of confusion over the amounts they had paid on
behalf of their loan obligations or deposited to their bank
accounts, or to the extent that any confusion allegedly existed,
that such confusion was not reasonable or grounded in logic.
18. Admitted in part and denied in part for the reasons set
forth in the reply to Paragraphs 14 and 15 above, which are
incorporated herein by reference as though set forth in full.
19. Denied. After reasonable investigation Plaintiff is
without knowledge or information sufficient to form a belief as to
the truth of the averments contained in this Paragraph 19, and
thus, they are hereby denied. strict proof is demanded at the time
of trial, if relevant, which relevancy is strictly denied. By way
119815.1
of further response, the Plaintiff did not induce the Defendants to
take any actions, but rather, at all times the Defendants acted
voluntarily and of their own accord.
20. Denied. After reasonable investigation Plaintiff is
without knowledge or information sufficient to form a belief as to
the truth of the averments contained in this Paragraph 20, and
thus, they are hereby denied. strict proof is demanded at the time
of trial, if relevant, which relevancy is strictly denied. By way
of further response, the Plaintiff specifically denies that it made
any misrepresentations or misled the Defendants in any way. In
addition, the Plaintiff incorporates by reference its reply to
Paragraph 19 above as though it were set forth in full herein.
21. Denied for the reasons set forth in the Plaintiff's reply
to Paragraphs 19 and 20 above, which are incorporated herein by
reference as though set forth in full. By way of further response,
the Plaintiff denies that it in any way induced the Defendants to
act in any way, and the Plaintiff contends that any and all actions
taken by the Defendants were completely of their own volition. In
addition, the Plaintiff at all times fully disclosed all loan and
deposit information to the Defendants and always acted in
accordance with the loan documents and applicable law.
22. Denied. After reasonable investigation Plaintiff is
without knowledge or information sufficient to form a belief as to
the truth of the averments contained in this Paragraph 22, and
thus, they are hereby denied. strict proof is demanded at the time
of trial. By way of further response, it is specifically denied
119815.1
that the Defendants tendered sufficient payments to the Plaintiff
to pay-off this loan obligation in full, and to the extent that the
Defendants made deposits to their accounts with the Plaintiff, such
funds were properly credited, and the balance of the loan
obligation is set forth accurately in the complaint. In addition,
the Plaintiff incorporates by reference its reply to Paragraphs 14
and 15 above as though it were set forth in full herein.
23 - 24. Denied. The writings referred to in Paragraphs 23
and 24 are documents which speak for themselves, and any attempt to
paraphrase the same is hereby denied. By way of further response,
it is specifically denied that the documents attached as Exhibits
Band C to the Defendants' Amended Answer with New Matter prove
that the loan was paid in full, but rather these documents simply
indicate that upon request of the Defendants, the Plaintiff
released certain real estate held as collateral for the loan
obligation. Furthermore, the averments of Paragraphs 23 and 24
state conclusions of law to which no response is required.
25. Denied. The averments of this Paragraph 25 state
conclusions of law to which no response is required. By way of
further response, the Plaintiff incorporates by reference its reply
to Paragraph 23 and 24 above as though it were set forth in full
herein. In addition, after reasonable investigation Plaintiff is
without knowledge or information sufficient to form a belief as to
the truth of the averments contained in this Paragraph 25, and
thus, they are hereby denied.
119815.1
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I-
VERIFICATION
I, James T. Grady, verify that I am an authorized officer of
CoreStates Bank, N.A., successor by merger to Meridian Bank,
Plaintiff herein, that I am authorized to execute this verification
on behalf of the corporation, and that the facts set forth in the
foregoing Reply to New Matter are true, correct and complete, to
the best of my knowledge, information and belief.
I make this verification subject to the penalties of 18
Pa.C.S. Section 4904, which imposes criminal penalties for unsworn
falsifications to authorities.
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119815.1
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DAV'O I. NANIA
CUMSON N. PAOI:, AI'
~O.'t'OOIt"
CAN..D ~'n4.JA
KUffT ALTHOUK
KIJUW O. McMUNICIA&.
PATRICK T, &t.I'.1IlnT
K.AftCN ~ LOHQINIlCKIR
SHAWN ). LAUe
LYNNE K. KlJIT
~ 0 MdIalNIQAL
KrJ'lNW.~.
CH.otA..I.S N. SHURR. JIt.
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BINGAM..\N. HESS. COBLENTZ & BELL
A PROFESSIONAL CORPORATION
ATIORNEV5 AT LAW
1l1l0 PENN SQUARE CENTER' 50. PENN SmEET
P.O. BOX ll'
REAOING. PENNSYLVANIA ,91103.oo11.
TELEPHONE (6\0) 374.8377
FAX II (610) 3711.3' OS
fUoYMONO Mo. HUS
J WENDIU. CoauHTZ
DAVID p, BUCKIONOO
r::# COUNSIlL
R.Al.PH J. ALTl1OUSE. JA
RET1RI.D
LLEWnl.m R. 8WCIAMAN
1101_IIM
JAMES ,., KU.
IIZI.1Ha
September 23, 1997
SHAWN J. LAU, pc.
8UlLDlNO Q. SUITE '0&8
liJO I.. IAARLTON PIKE
CHERRY Hl.L.. NJ 0800J
UI09) 151""58
",AX (101) 424.71 12
Thomas J. Weber, Esq.
P.O. Box 1268
Harrisburg, PA 17108-1268
RE: CoreStates Bank, N.A. vs.
Steven A. Failor and Cynthia L. Failor
No. 97-333
No. 97-334
No. 97-336
No. 97-337
Our File No. 1011-536
Dear Mr. Weber:
I.
Enclosed for service upon you in each of the above matters
please find the Motion of Plaintiff to Compel Defendants' Answers
to Plaintiff's First Set of Interrogatories and Request of
Production of Documents, and the Order issuing the rule.
Sincerely,
BINGAMAN, HESS, COBLENTZ & BELL, P.C.
/I i 1~1 " I j
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Charles N. Shurr, Jr.
CNS/mb
Enclosures
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BINGAMAN, HESS, COBLENTZ & BELL, P.C.
By: Charles N. Shurr, Jr., Esquire
Identification No. 74813
660 Penn square Center
601 Penn Street
P.O. Box 61
Reading, PA 19603-0061
(610) 374-8377
Attorney for Plaintiff
CoreStates Bank, N.A.
CORESTATES BANK, N.A.,
successor by merger to
MERIDIAN BANK,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No. 97-337 Civil
plaintiff
vs.
STEVEN A. FAILOR and
CYNTHIA L. FAILOR,
Defendants
CIVIL ACTION - LAW
CERTIFICATE OF SERVICE
I, Charles N. Shurr, Jr., Esquire, attorney for Plaintiff,
CoreStates Bank, N.A., successor by merger to Meridian Bank, do
hereby certify that a true and correct copy of the Praecipe to
withdraw the Motion of Plaintiff to compel Defendants' Answers to
Plaintiff's First Set of Interrogatories and Request for production
of Documents, and the Order issuing the rule, was served upon the
following party by U. S. first class mail on October );, 1997,
addressed as follows: ---
Thomas J. Weber, Esq.
P.O. Box 1268
Harrisburg, PA 17108-1268
c~lk.nt~~J
Charles N. Shu ., Jr., Esquire
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BINGI\MAN, HESS, COBLENTZ & BELL, P.C.
By: Charles N. Shurr, Jr., Esquire
Attorney 1.0. No 74813
660 Penn Square Center
601 Penn Street
P.O. Box 61
Reading, PA 19603
(610) 374-8377
Attorney for Plaintiff
CoreStates Bank, N.A.
CORESTI\TES BANK, N.A.
successor by merger to
Meridian Bank,
Plaint if f
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
vs.
NO. 97-333 Civil
STEVEN A. FAILOR and
CYNTHIA L. FAILOR,
Defendants
CIVIL ACTION - LAW
VOLUNTARY SUBSTITUTION OF FIRST UNION NATIONAL BANK,
SUCCESSOR BY MERGER TO CORESTATES BANK. N.A.
1. First Union National Bank, which is not a party herein,
desires to substitute itself for CoreStates Bank, N.A. herein.
2. The material facts on which right of succession and
substitution is based are as follows: effective May 15, 1998,
First Union National Bank formally became successor by merger to
CoreStates Bank, N.A.
3 .
substitute
Bank, N.A.
First Union National Bank, does hereby voluntarily
itself herein in the place and stead of CoreStates
4. Kindly enter this firm's appearance in this matter for
Plaintiff.
BINGAMAN, HESS, COBLENTZ & BELL, PC
Date:
<\ PI c,~
L\laJi Il. ~\(~
Charles N. Sh rr, Jr., Esqulre
cc: Thomas J. Weber, Esquire
OCT 1 5 199Jfr
t
BINGAMAN, HESS, COBLENTZ & BELL, P.C.
By: Charles N. Shurr, Jr., Esquire
Attorney I.D. No 74813
660 Penn Square Center
601 Penn Street
P.O. Box 61
Reading, PA 19603
(610) 374-8377
Attorney for Plaintiff
First Union National Bunk
FIRST UNION NATIONAL BANK,
successor by merger to
Meridian Bank,
Pl aint if f
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
vs.
NO. 97-333 Civil
STEVEN A. FAILOR and
CYNTHIA L. FAILOR,
Defendants
CIVIL ACTION - LAW
ORDER
AND NOW, this
zr
day of
Mw
, 1998,
based upon the Stipulation entered into between the parties it
is hereby
ORDERED that judgment shall be entered in favor of First
Union National Bank, successor by merger to CoreStates Bank,
N.A. and Meridian Bank, and against Defendants, Steven A. Failor
and Cynthia L. Failor in the amount of $59,845.51 plus interest
at the rate of 9.50% per annum from July 13, 1998 forward, plus
late charges, attorneys' fees, and costs of this suit, and the
Prothonotary is directed to enter judgment accordingly.
BY THE COURT:
. /\l" /1 /i
,Y
J.
/
BINGAMAN, HESS, COBLENTZ & BELL, P.C.
By: Charles N. Shurr, Jr., Esquire
Attorney I.D. No. 74813
660 Penn Square Center
601 Penn Street
P.O. Box 61
Reading, PA 19603
(610) 374-8377
Attorney for Plaintiff
First Union National Bank
FIRST UNION NATIONAL BANK,
successor by merger to
Meridian Bank,
Plaintiff
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
vs.
NO. 97-333 Civil
STEVEN A. FAILOR and
CYNTHIA L. FAILOR,
Defendants
CIVIL ACTION - LAW
CERTIFICATE OF SERVICE
I, Charles N. Shurr, Jr., Esquire, do hereby certify that a
true and correct copy of the foregoing Stipulation was served
via U. S. First Class mail on October ~, 1998 upon the
following, addressed as follows:
Thomas J. Weber, Esquire
Goldberg, Katzman & Shipman, P.C.
P.O. Box 1268
Harrisburg, PA 17108-1268
BINGAMAN, HESS, COBLENTZ & BELL, P.C.
It ,1 , ,', C J ,I
L(bd", -t-::tf..:/
Charles N. Shurr, Jr., Esquire
Attorneys for Plaintiff
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