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HomeMy WebLinkAbout97-00334 ~ ~ "1 " ~ <j ( ... ~ " . .. .:) .. ~ rl) rf)[ . u._....... .~"\ a ',\\ (h I , t"-' ~ . ~. - ~ '" '-:> '-> ... .... I ..---; \ l'-) l~ c.: '-.) , ~ ,., ('~ I~ lU: . C'( -..J 114. L~. j ~ ~ ' . , ()' ~ """ "'..... ..3- 1 ~ r. C'! ~,') ~ ..... " . -~ ~ G . I ~....... 0- I "" r-- .. ,-- .1 ~ \ ~ ( 0' ..:..; /"', ~ '\J.' : r(', ~ d ,,-----,. -. 1) ~ ~i ~~ 1)~ ~I .0 ..... .... .0: .... i ~ ~ ~i J ili ~~ p. ~ ~~ ~ IDo 8 ~i .11 ~ .j ~~~ ..;~21 ~ ~ ii ~ ~ I . . Il:l . ~ Ul . z I = ~ = ...J ...J UJ ~ i ~ ~ ~ ~ ~ - 1l ...J ~ ~ ,.. ... 8!~~~~~~ . ;: ~ i!l ((i "' S ~fz gz2$ ids ~$~ ~;: ~ ~ ~ ~ z 1ii 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 COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs. Docket No. L} '1 j j 't Cu-":; r;..--. STEVEN A. FAILOR and CYNTHIA L. FAILOR, Defendants CIVIL ACTION - LAW COMPLAINT 1. Plaintiff is CoreStates Bank, N.A., SUccessor by merger to Meridian Bank, a national banking assiciation with a principal office at 1345 Chestnut Street, Philadelphia, Pennsylvania, 19101. 2. The Defendants, Steven A. Failor and Cynthia L. Failor, are adult individuals with an address of 525 Mt. Rock Road, Newville, Cumberland County, Pennsylvania 17241. 3. On May 12, 1995, Steven A. Failor and Cynthia L. Failor executed and delivered to Meridian Bank, now by merger CoreStates Bank, N.A., a Promissory Note in the principal amount of $160,000.00 (the "Note"). A true and correct copy of the Note is attached hereto as Exhibit A and incorporated herein by reference. 4. Plaintiff has not assigned the Note and is the holder thereof. 5. The Defendants have defaulted in their obligations to the bank by failure to make payments when due under the Note despite demand. 6. The amount owing to the plaintiff by the Defendants under the Note is as follows: $159,999.79 (a) Unpaid principal (b) Interest at the rate of the rate of 9.75% per annum ($43.33 per diem) through 1/2/97: (c) Late Charges: (d) Attorney's fees (5%): TOTAL: 10,659.99 185.44 7.999.99 $178,845.21 Plus interest at the rate of 9.75% per annum ($43.33 per diem) from January 2, 1997 forward, late charges, and costs of this suit. WHEREFORE, plaintiff demands judgment against the Defendants, steven A. Failor and cynthia L. Failor, jointly and severally, in the amount of $178,843.21 plus interest at the rate of 9.75% per annum ($43.33 per diem) from January 2, 1997 forward, late charges, and costs of this suit. BINGAMAN, BBSS, COBLBNTZ , BELL, p.e. By: C~"t... 01>> i, ~orKaren Feryo Lohgenecker, Esquire Attorneys for plaintiff ''''1111'"'''"''''''1 1-."",,,,,,, $ 100.000.00 MIV 12, t095 FOft VALUE FlECEMO. Uncl~n~, In''n4lng 10 be '-gaily boUnd. ptOml," 10 P-r 10 In, Old., of ....ndlan Ban. rs.n." . "nnlY~ banting COI'PCWaIlon tl~ III offtc... 35 ,,--. ~."- p ... 01 onehundlld IIJtfylnouund doUarl and 00/100 '-'" SiJlth _Nt, ....adIrlg. enntytoIatua" I", PftMI aum DoIan~.... U 1If'CMd", M., 'MIll Int.,.. KCNr1g"!he ,.,. 01 g.7&" lind ptJf aMUl'I'l willi PlHi,Inl.,.., mav ~ COInP'At4 on tN bull 01 tN ""'1'IUmbw0l ~.. ttMi calendAr reat dMdN by 310. ......- ... ... - -"............. --...... - """""'-..... Local """"'-"'................... 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"'KCOn:IInCt.....". and IUbjtctto, tN ~oI~Not.etnd...,OItItf~~OI --._..__..._..........."'Y.~__..__...__._.._.........-.. ....,.., IMI noI-...cIa. PI""" un 1laIad.... McIIUd1 ~._....._. rNf"",*,--...,... opcIon. L~LNrf""-tnd....,.....MInd~..._ ~ ~oIS .td\ ~ . en. IItWlI ~ olllf'/ fM\IRng ~ PMdPIll and lnt.,..1t eM and peyUle on L~""'~LoInI~ltdutIndJWtlb't"'_ ~ ~oIS --. ........ . - on ... ....... ......... " _ ... _ ........ . en. ~ ~ 011 tog<<Jw Mth M'f ~ ~ and 8CCNtcI ...,.. . due McI ,...... on ........ UndtfWgntd Whortnt 8Inklo c:I\&tg. II dtpOlllfCCOunl' 5123-57$4 lot the PC)'mmI 01 pr'\nCpaiIand/Ol' 1nI....~.,.lJndMigntd shill.. a.. ~ cNrge eqUIIlD the...., 015" 01 tht """'* amounI 01.., ~ ~ Ol' 115.00, \IIIfttnewt P8)'mMI 01 the... amourc due on.., dale It nat t'tCIMid bJ'" on Ol'belattlhe 15lI'I~daylfttt..~dutclll.. LlA8lmU 1loo - "'-'.................... _......... bv............_........ """''''llo'''' .."'Y_...... 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Pf'OPI"Y Of Uncl."lgntd Of A!'f llU'III ObOVOf comm."," any banllNplc:y OIllmdat PIOCIfCf:"1l1 unOll any lnflWIwency 1_. Ilal. Of IlCIllal. Of anv lucn PfOC~ II comm.nclld '9"n" UNllf'llgnlld or any Olnll O~Of. Of UII<I'tI.gned 01 arry Olh" Obllqor bMO"',lMatwoefll, Of g.nttllly '.1" 10 peV Of' II ,~"'V wnabI. to PlY '" d.bl,. 01' ",UM en UIl9"'"'nc 101 tnelMntftC 01 crtlCllof'l or ad"'''' In \fIIFIIlng 1ft, In&o....ncy 01' 1n&DIIIIy 01111,," 10 p..,.., O'bcl''''''auy U ""y bleo",. dUI. OIl. MtI'W13Q d.~ to PoaV 01 bof1d Of 011'1.,..... clitcnatg. any !\Idll''''1f'II """,ell,, unt1.VICI penlMg 'Pp.lI; (hI Undl"lgnld or arry OChlf ObllQOf l'pIftt.. an 1nI"" to I"INNI.. tl'fO". Of c:t\aIIetIgt MOOnllblkty lor V't'f UablIdlft Of 11ft mat"'1I1',"t olin( document "lCl.IllId 1n ~K!1Of'l Mh It'll UGIIIlI" 'I found or dte..,1d 10 belnWllid by'. COUll 01 competInC ~Ion; lq "'t propeny of UndltfllQt\ed Of I/t'f otNf OtlUgOf becomn It'll lUbjK'l 01 any an""'"'nt. gltNahmlnl, ,-' Of H." lunl... 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OE..mu Upon IN~. 01. 0NuI ~ BanIIIMI,... no I'UMet obIIgaUonlto ~ IUndlIo Undel'llVned hlm./nder; (bI all UatMlllln Ift&II, IIIhI option of 8.Wt, be ~ due Met ~ In4 ~ 8InI1N'/ tJlMlu ltI rtg.... 01...4.. let fotth hItetn.1n'f and &l1efTIed6n.....aa.ble to BanJt undlf1hil Hol. and the Sl<W1Iy ~ Met II Itghtt Ind r.medIeI ~ to.. ...... .." ~ ....Inckdng......1IrMItion, IN Itghtl and I"Il'MdIet 01. Maftd PMY unci" the UnifaIm Cornrrlen:i&l Cod.. Uncllf'llgnlld and .. ~ httttI1 - notice cI pl."''''''' faf~, d..-nand, non~ Ofdllhonor. ptOlnl, acatIfUIon In4 .. """* nolkIt oIlnfWnd In COI'\rMQlon'MttlIN d~.~. d"" Of "~':"',_lIoItNlNoI:t.Md ~......noac.Of"'oI~oI.Nnelona,~tnOdllk.a&IoMOffortMlt"""lIiIHc:h maybe ~ Upon 1he accurrence 01.,., Del_and U'MI ~ tl'IItoI. and upon pnottllil"ll'lln noticIlo UndefsIgnM by 8M.. ~......accrve .. an.",.,... flJ. ""'*".".. be.IhI,.. 01 Inl.,... payabIe~. w.... 'fIINc:n.. noc NJd lIlINn due IhU be addlO to PMdPM.' any 01 tI\I U&DlIltin at In( ponlOt"l thlNQI CMtnSJ to Ian. tI not "'" In ~\IIlhen duI. BanlINV .. II: 0CIU0ft and IIlIIChcM notfee. WIlhctrM !tom Inf ac:caurc 01 Und<<Iigned WlU'l BanI an II'nOUf'II ,qual to tuen owntu. amaunc and Ia apply Iud'l amount to !hi ~ 0I1he ClWtdve ~ AI rights or NfnIlC26n 01 BenIt lei faIttl Of ~ ..~ II.~. NIIIMr."" delay or lUur. by Ban.. In .'1fClIing Inf 01 b optlOftll, pQMfI Of ngru hIfWI, not IIPf ~ Of ungie tQfW:I ""'-oI1MI COtIItIM. . ...,..... 01 !hi t\ght 10 hllfCile the III'ftI Of Inf OlfIIf rignt c.l1I't'f othIf time or from 11m. to 11m. II""..."". 8MlI" not requftd 10,..., to"" p.articuW MCUfIy Of JIIl"IION 10 enfofoc:. ~ and 8M... not IUbtK'I to ""'f mIIW\IlIItIg ~ or equltlet among lJndem;ned. it ~ IMn 1IftIII. and wnong. 01""'" Md Inf -. ~HEOUS Ant pettJOn tliIftO..ltCIMI..... Notl" t&nty Nf'IbVUlICOl........MJy bIcomet Sl.nty1Oa.n.lot tI\I ru. and prom", peymlllllM\en due. wfteth.rby acceIIfltionor CIIttMfwIu. and II.. limit.,.,..,.,. 01.. olIN u..... The .,......, 01 enr porUon 0I1Nt Hot. thai not al'rect the ~ pottionI, Of Iff'( pan~. and In the CMI 0I1/Y'f such 1nwtIIIdIy.1Ns Hole It\II .. c:ontINed .., Wd'l ~ had not *" IlwIAed. Undetlilgned. if more than one. .,. JOWIUV and ....auy llItH. and the I,"" "'nc:lIfSigMd" ~ UIId fMMlINCh oIl1'le patlIM IIl.IICUIIng .... Mcu 'IIlINIhIf . tlorfvrwef 01 .....,. AI 01 the lIfmI end pI'OlMOtII iI u.a Not. iI\uirt to and II. tJndItIg upon the h.... .'KWlII. ~ ~ "Pl~.b6_... tKeftfM, IMtMI Md..... 01 BanlMd UndetIigned. Uc_4...d and MCtl 0bIg0t 1rrMxabfy'" 1M "SItlI1O hIfPOM Inf del.... (0Ch" IhIn ~, ...-oft 01 COUtIlttd&lm 0I1ff'1 ncult 01 dIICIlIltion WI tIPf and II dIIplMI ~ I/Y'f 01 UIM'lInCl a.n.. """""'uno..1I\iI Note OfW\d<< W'Pf ocrw -;'""*" MntofoN 01 n.,.aftlf ,.ecuM. Uc"'-.-4 WJd MCft 0bIg0r ~.....,., ~ to 1M hduwe ~ 01 tt11 Courts 01 Common PIe. rot 11ft cout-.yln P...nf)'MllM...........,....,... and/ot II'le lJnletd..... 0IIIrka Coutt.. the E.-.m rMk:I 01 ~.._,lWI.1n IIPf and II ~ KUoN or ~ bItwMn I1anII; and etPJoI them, 'fIIIhtCtIIt WIng ........otl.ftMfl/Pf CIChef' ~ Of undenaNng and ~... to.... 01 ~ by ~ tnall, fIItUm IKetoc tequelted, 10 them IIIhI.sdrea hied WI h I'tCIOftn 01.... and IhIIIIMct UClOR Inf 01 '*" thai ClOnIIILa...... upon" 01 them, NCh, hnoV ~ the~., II'IIlr anom~ tor the PIN'POMcI-*,.I'fowwIf. BInlIII not Pf"CIUdM hm..... an KtIOn...... UndetIlgnId.,., MCtI 0bIIg0t In ItI'f ~ In the United SlaI" Of ........,.\n wntd1~. "'f CIlfivot Of Iff'I oIlh11t pn:l9IfT'f. ___ ~-4111l1 .~ObMIjtot"",,*""noItorn&lll"'fobf.ctlonln""Nd'l-*,"Of~ttl.ath.\fWfUI..ltnprv",OflN toNm..~nt. Allecma. obIIgaltonlltld ~hereof.,. ~ by andCOl'tltnle>d ln~f'I'th !NIl'll"""'........ ot"'.Commonw..It"oI"'nntyl'NIUI.MhOUl~IOCOI'ikIoI"" ~ ItA nooces. COMInCIInd 0IhIf ~ rwqui~ by Of 'II"'" under tI'Iit t'IO!,l tIWlla In wnIlng and IIWI ~ glWn by ""'If II) hind dlliWfy. (III h cs.. mill fpotUg."...... (IIi)""'" ~ ~ c:owNt {chatV" DFlCJMlI, 01 "'" IttIcol";' Of 0Ch" ""lMo! ~ IlaMmCllOR, ",toN!tmlGClfVmpUyCY anvctth.~ 1ID'ICIIIed.... '*"" ...PI and {IlII otthfl MnCenceand II'WI belUll'lctenc.1tl1ne C&II'Unclll'IJQnea. If,.,.. tom. Ul'nuon Mitt ~Of.Il"''''' pann"Of 1nf'.Kl.JtlVeOll'lcet'IIll'l.~onlhentCOfClol Baml. and. In the c-.. oIBM.. ., ..".10 tM Ildd,.. and IiftIl'lbOn 01 the 'Oan omclf IIf'ol'ICI"I9 the KCOU~ of UndlfSlVntd. IN 'MTNESS WHEREOF, Itl. ~ lntenGang to De IettIIy bound "*"'t. hM ..eeut-"!Nt Not'. the d'f and )lel/IIIII &bcM ",""en. Surely: Borrowe'.....L /J LS. ~ t17. 51...," r'l'O~1J. 1 0... Cyrnnla L F'i'~ LS. ~ L~l OQR. LS. LS. LS. LS. LS. LS. LS. ~~~ LS. 'Mln... 19r/ P plaintiff's claim is barred due to fraud and the doctrine of estoppel. 3. contrary to pennsylvania Rule of Civil Procedure 1019 (a) , the Defendants have failed to set forth specific material facts, which are the grounds for Defendants' defense. 4. contrary to pennsylvania Rule of Civil Procedure 1019 (b) , the Defendants have failed to aver their allegations of fraud with particularity. 5. contrary to Pennsylvania Rule of Civil Procedure 1019(f), the Defendants have failed to specifically aver the time and place of payments the Defendants allegedly made to the Plaintiff on behalf of the Note. 6. Contrary to Pennsylvania Rule of civil Procedure 1019(f), the Defendants have failed to specifically aver the time and place of the alleged establishment by the Plaintiff of an escrow account. 7. contrary to Pennsylvania Rule of Civil Procedure 1019(h), the Defendants have failed to attach copies of the writings or other documentation showing the agreement to establish an escrow: ,) account. 8. Defendants have failed to comply with Pennsylvania Rule of civil Procedure 1019; therefore, Defendants' New Matter should be stricken. 109821.1 ~ ;I " , , , .. , , 'I c WHEREFORE, plaintiff, Corestates Bank, N .A., successor by merger to Meridian Bank, respectfully requests that this Honorable Court grant its Preliminary Objections in the nature of a Motion to Strike for failure to comply with Pennsylvania Rule of civil Procedure 1019 and to order Defendants' New Matter stricken. II. PLAINTIFF'S DEMURRER TO DEFENDANTS' NEW MATTER 9. Defendants' New Matter alleges that the Defendants made certain payments to the Plaintiff on behalf of the Note, and that such payments would be deposited into an escrow account, the proceeds of which would be used to satisfy the $160,000.00 note. 10. Defendants have failed to show that they are current on the Note. 11. Defendants have failed to show that they tendered sufficient payments to the Plaintiff to pay the Note in full." 12. Defendants have failed to show that the Plaintiff had agreed to establish an escrow account. 13. Defendants have failed to show any relationship between the payments Defendants allegedly made to the Plaintiff at one time and the present default status of the Note. 14. Defendants have failed to show any relationship between the Plaintiff's alleged failure to establish an escrow account and the present default status of the Note. 15. The Defendants have failed to allege facts to establish that there had otherwise been an accord and satisfation of the Note. 16. Defendants have failed to show any causal connection 109821.1 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 J; CORESTATES BANK, N.A., successor by merger to MERIDIAN BANK, IN THE COURT OP COMMON PLEAS OP CUMBERLAND COUNTY, PENNSYLVANIA No. 97-334 Civil Plaintiff vs. CIVIL ACTION - LAW STEVEN A. FAILOR and CYNTHIA L. FAILOR, Defendants CERTIPICATION OP SERVICE I, Charles N. Shurr, Jr., Esquire, of Bingaman, Hess, Coblentz & Bell, P.C., Counsel for Plaintiff, CoreStates Bank, N.A., successor by merger to Meridian Bank, do hereby certify that a true and correct copy of preliminary Objections of Plaintiff to Defendants' New Matter has been served this 11th day of March, 1997, by first-class mail, postage pre-paid, upon the following: Steven E. Grubb, Esquire Thomas J. Weber GOldberg, Katzman & Shipman, P.C. 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 BINGAMAN, HESS, COBLENTZ & BELL, P.C. By: ~ 1\)1./;'~1 I /L. .;\ 11\.-\,'\0; Charles N. Shurr, Jr., Esquire 109821.1 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., successor by merger to MERIDIAN BANK, IN THB COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PBNNSYLVANIA No. 97-333 Civil Plaintiff vs. CIVIL ACTION - LAW STEVEN A. FAILOR and CYNTHIA L. FAILOR, Defendants PRBLIMINARY OBJBCTIONS OF PLAINTIFF TO DEFENDANTS' NEW MATTER Plaintiff, Corestates Bank, N.A., successor by merger to Meridian Bank, (the "Bank") by and through its attorneys, Bingaman, Hess, Coblentz, and Bell, P. C., hereby preliminary objects to Defendant's New Matter, as follows: I. MOTION TO STRIKE DEFENDANT'S NEW MATTBR FOR LACK OF CONFORMITY TO PA.R.C.P. 1019 1. Defendants' New Matter alleges that the Defendants made certain payments to the Plaintiff on behalf of the $50,000.00 promissory note attached to the Complaint as Exhibit A ("Note"), and that the Plaintiff's claim is barred by the doctrines of payment, estoppel, consent, release, and fraud. 2. Contrary to Pennsylvania Rule of Civil Procedure 1019 (a) , Defendants' New Matter fails to set forth any material facts, which 109804.1 constitute the grounds of the Defendants' claim. 3. Contrary tc Pennsylvania Rule of civil Procedure 1019(b), Defendants' New Matter fails to specify with particularity the allegation of fraud. 4. contrary to Pennsylvania Rule of Civil Procedure 1019(f), Defendants' New Matter fails to specify the time and place of the payments that Defendants have allegedly made on the behalf of the Note. 5. Defendants have failed to comply with Pennsylvania Rule of civil Procedure 1019; therefore, Defendants' New Matter should be stricken. WHEREFORE, Plaintiff Core States Bank, N.A., successor by merger to Meridian Bank, respectfully requests that this Honorable Court grant its Preliminary Objections in the Nature of a Motion to Strike for failure to comply with Pa.R.C.P. 1019 and to order the Defendants' New Matter stricken. II. PLAINTIFF I S DEMURRER TO DEFENDANT I S NEW MATTER 6. Defendants' New Matter alleges that the Defendants made payments to the Plaintiff on the Note, thus barring the Plaintiff's claim. 7. Defendants have failed to show that the Defendants are current on the payments due under the Note. 8. Defendants have failed to show that Defendants have tendered sufficient payments to the Plaintiff to pay the Note in full. 9. Defendants have failed to set forth any matters which are . 109804.1 I. a defense and specifically related to the matters set forth in Plaintiff's Complaint. 10. The Defendants have otherwise failed to allege facts which demonstrate an accord and satisfaction of the indebtedness. 11. The matters set forth in Defendants' New Matter are not a proper defense to the matters set forth in Plaintiff's complaint, as the Defendants have failed to show that the Defendants are current on their payments due under the Note or that they have tendered sufficient payments to the Plaintiff to pay the Note in full or that there has been an accord and satisfaction of the indebtedness. 12. The averments set forth in Defendants' New Matter are legally insufficient as a defense to the matters set forth in plaintiff's Complaint. WHEREFORE, the Plaintiff, Core states Bank, N.A., successor by merger to Meridian Bank, respectfully requests this Honorable Court to grant its Preliminary objections in the nature of a demurrer and to dismiss Defendants' New Matter to Plaintiff's Complaint for failure to state a legally sufficient defense. III. PLAINTIFF'S PRELIMINARY OBJECTIONS IN THE NATURE OF A MOTION FOR MORE SPECIFIC PLEADING WITH REGARD TO DEFENDANTS' NEW MATTER 13. In the alternative, if this Court finds that the Defendants' New Matter should not be stricken for failure to comply with Pa.R.C.P. 1019 or that Defendants' New Matter sets forth a legally sufficient defense, Plaintiff requests that the Defendants be required to file a more specific pleading. 109804.1 ., J .. -, , ., , , \in .' .. I ...:- ., , .) 2. Upon service, the Failors filed a timely Answer with New Matter on February 18, , !. , 1997, which Answer contained a Notice to Plead. 3. Since the Failors served their Answer with New Maller by mail, Pa. R.C.P. No. 403 states that upon mailing their Answer with New Maller, the Failors had completed service on February 18, 1997. 4. Pennsylvania Rule of Civil Procedure 1026 allows 20 days for CoreStates to file a responsive pleading to the allegations contained in the Failors' New Maller. 5. CoreStates filed a Preliminary Objection to the Failors' New Maller on March 12, 1997. 6. By filing its Preliminary Objections to the Failors' New Matter on March 12, 1997, CoreStates filed their responsive pleading beyond the prescribed time enunciated in Pa. R.C.P. No. 1026. 7. CoreStates failure to file their Preliminary Objections in a timely fashion mandates their dismissal. 2 WHEREFORE, the Failors respectfully request that CoreStates' Preliminary Objections to Defendants' New Maller be dismissed. II. MOTION TO STRIKE CORFSTATFS' DEMURRER TO NEW MATIER 8. The allegations of paragraphs 1 - 7 are hereby incorporated by reference as if they had been set out in full. 9. Alternatively, if the Court does not dismiss CoreS tates' Preliminary Objections to Defendants' New Maller due to their untimely filing, the Failors respectfully request the Court to strike Count n of CoreStates' Preliminary Objections which alleges a "Demurrer to Defendants' New Maller." 10. A demurrer is an assertion that a Complaint does not set forth a cause of action upon which relief can be granted. 11. The Failors' New Matter raises the defenses they will assert to the allegations contained in CoreS tates' Complaint. 12. Because the Failors have not yet stated an affirmative claim for relief, they have only raised defenses to the Complaint, and a demurrer is not proper to strike New Matter. 3 CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document upon the person(s) 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 Feryo Longenecker, Esquire Charles N. Shurr, Jr., Esquire Bingaman, Hess, Coblentz & Bell, P.C. 660 Penn Square Center 601 Penn Street P.O. Box 61 Reading, PA 19603-0061 GOLDBERG, KATZMAN & SHIPMAN, P.C. By: {~. .)l;('f i11r I " ': II if 1'1 ," , , . Steven E. Grubb, Esquire J.D. #75897 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Defendants DATE: 'II....! ... ,,~. \ l! 'I 5 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 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CORESTATES BANK, N.A., successor by merger to MERIDIAN BANK, No. 97-334 civil plaintiff CIVIL ACTION - LAW vs. STEVEN A. FAILOR and CYNTHIA L. FAILOR, Defendants ANSWER TO PRELIMINARY OBJECTIONS TO THE PRELIMINARY OBJECTIONS OF PLAINTIFF TO DEFENDANTS' NEW MATTER plaintiff, Corestates Bank, N. A., successor by merger to Meridian Bank, (the "Bank") by and through its attorneys, Bingaman, Hess, Coblentz, and Bell, P.C., hereby answers the following in response to the Preliminary objections to the preliminary objections of Plaintiff to Defendants' New Matter, as follows: I. MOTION TO STRIKE PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANTS' NEW MATTER FOR FAILURE TO TIMELY FILE 1. Admi tted. 2. Admitted in part and denied in part. It is specifically admitted that the Defendants filed an Answer with New Matter in 111586.1 this case. To the extent the averments of Paragraph 2 state a conclusion of law, no response is required. 3. Denied. It is specifically 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 affect the substantial rights of the parties. 5. Admitted. 111586.1 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 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 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 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 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 9 through 18 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 111586.1 conclusions of law to which no response is requireu. '1'0 the extent a response is required, the Plaintiff submIts that a demurrer is f 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. NHEREFORE, Plaintiff, CoreStates Bank, N.A., successor by merger to Meridian Bank, respectfully requests that Defendants' Preliminary Objections to the Preliminary Objections of Plaintiff to Defendants' New Matter be stricken. BINGAMAN, HESS, COBLENTZ & BELL, P.C. By~P~~h~~~!~~ Shurr, 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. 111586.1 I .J ! VERIFICATION , :. James T. Grady, an adult individual, verifies that he is a duly authorized vice President of Corestates Bank, 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 with a full understanding of 18 Pa. C.s. Section 4904, which relates to penalties for unsworn falsifications to authorities. I i' Dated: ~c_ 7CL'6 Ja rs T. Grady , 111586.1 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 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CORESTATES BANK, N.A., successor by merger to MERIDIAN BANK, No. 97-334 Civil Plaintiff vs. CIVIL ACTION - LAW STEVEN A. FAILOR and CYNTHIA L. FAILOR, Defendants CERTIFICATION OF SERVICE I, Charles N. Shurr, Jr., Esquire, of Bingaman, Hess, Coblentz & Bell, P.C., Counsel for Plaintiff, CoreStates Bank, N.A., successor by merger to Meridian Bank, do hereby certify that a true and correct copy of an Answer to Preliminary Objections to the Preliminary Objections of Plaintiff to Defendants' New Matter has been served this Ie;;'\';" day of April, 1997, by first-class mail, postage pre-paid, upon the following: Steven E. Grubb, Esquire Thomas J. Weber Goldberg, Katzman & Shipman, P.C. 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 BINGAMAN, HESS, COBLENTZ & BELL, P.C. By: (I t.'ll.Y. I~ A J.. Charles N. Sh~r, Jr., Esquire 111586.1 J ~,-o ~:"e.C: go. ~.. 1.AW OPPleIH. GOLDDERO. KATZMAN &: SIIIPMAN. P.C. RONALD'" KATZMAN HARAT 0 GOLDBeRG r L[C SHIPMAN PAUL J (SPOSito N[ll H[NDtRSHOT J JAY coOPtR THOMAS [ DRCNNen JOt.. A STAILCR APRIL L STRANG.KUT"Y Gur tt OROOK& JefFeRSON J SHIPMAN KARtN 5. rWCHf[NBtnatR JeRRY J RUSSO ARNOLD B KOGAN THOMA5 J wtBtR MICHAtL J CROetHZI [VAN J KLINt, III 5T1:VCH c. GRUBB J~ R NlNOSt< y ueD HAUKI:rr STIIIUfT tlTltAWIJIUIIIV ttUUAUK 1",0. uux nUln JlAUUIBUUJlU. I"BNNHYI.YANIA 1110n'IUUlI TBLBPIIONB (7171 UtH-ol1111 PAX (7171 UU4.unou PIRN a'NAIL: oaBOaXHLAW.CON ..CRSlitT orrlC[ ai] WUT CHOCOLATe AV[NU[ POBOX DOG ..tRSHt'(. PA 17033 17111 !U].404D ""IIHUR L GOLDBCRG or C~5[L ,...nLlSlC orflce 53 WUT POMrRtT STRtU CARLISLe, PA 11013 17171 245.05D7 February 19, 1997 YORK O"IC[ 2 wesT MARIC.CT SfRCtT 'ORK. PA. 17401 17171043.7DIZ Charles Shurr, Esquire Bingaman, Hess, Cublentz & lieU, P.C. 660 Penn Square Center 601 Penn Street P.O. Box 61 Reading, PA 19603-0061 ICORR[SPOND TO HARRISBURG OrFIC[1 Re: Corestates Bank, N.A. v. Steven and Cynthia Failor 97-334 De.lr Mr. Shurr: Enclused are the Answers with New Maller in the above referencedmaller. sinc:7' ./J/J ~.._--;~ rtM?/,0 ~-" p~' /', / ,;;Z? ..S ev~. Grubb 'sqUl e. Enclusures );XHIBIT A ~ : .,., 0 , '-.J " " -, .,.. , ., J . ~n " .. .. f) 1",. .) '. , ;.:.~ ,.;) ., ) : II fl .. ..~ J .~.J .~ ", I'llflECIPE FOil LISTING Cfl5E FOil flRGUMENT (Must be typewritten lIlXl subnitted in duplicate) TO THE PROTHONOTflRY OF CUMBERLJ\ND COUNTY: Please list the within IlItItter for the next fIry1..ment Co.Jrt. --------------------------------------------------------------------------------------- CAPTION OF CASE (entim caption llLISt be stated in full) CORESTATES BANK, N.A., successor by merger to MERIDIAN BANK (plaintiff) c -~ 1 -J " . I , : 1 " ., " '..> ,"J , I '-l .. , I ~ , .\ . I " , , " ( ~~ . ! ", VB. STEVEN A. FAILOR and CYNTIIIA L. FAILOR (Defendant) t-b. 97-334 Civil 19 97 1. State matter to be argued (i.e.. plaintiff'S rrotion for new trial. UCfClXL:lIlt's denurrer to canplaint. etc.): ~retiminary Objections of Plaintiff to Defendants' New Matter and prleiimtiinfafrYt Objections of Defendants to the Preliminary Objections bf a n 0 Defendants' New Matter 2. Identify COWlSel who will.>JrgUe 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 J\ddress: Goldberg, Katzman & Shipman, P.C. 320 Market Street, Strawberry Square P.O. Box 1268 . Harrisburg, PA 17108-1268 3. 1 will not.LC)' all parties in writing within two days that this case has been listed for argunent. 4. Arg\JneIlt Court Date: May 28, 1997 ())ted: V/zrl41 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 THB COURT OP COMMON PLEAS OP CUMBERLAND COUNTY, PENNSYLVANIA CORESTATES BANK, N.A., successor by merger to MERIDIAN BANK, No. 97-333 97-334 97-336 97-337 Civil; Civil Civil Civil Plaintiff vs. STEVEN A. FAILOR and CYNTHIA L. FAILOR, Defendants CIVIL ACTION - LAW PROOP OP 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 11f.~: C~~,.'- 17 l!a:..u.;; Mal1ssa N. Young /' /I Sworn to and subscribed before me this ,,~J, day of 1\/, Y'I (: 199...2. v C" ;:;fA.... -Ir..n; It O[ (;r. ., /I ,{i' /;J;~ :J Notary PUblic - - _-_ -JIll ~-~......-... .,- II. '~...n_ " n 0/3 0 G; -.I ." ~= ..J ~~I ~.I :rJ ~: ~ ~., ,... ~_: \ r,) .;~ l:; c::; d ;~~ : .,1 ;J. ~) :-t :, ::r. ..0 ; ., ~:.. ......lil ~1 . . :n ""'" :u ~ 11\ -< SHERIFF'S RETURN - REGULAR CAS~ NO: 1997-~0334 P CIJMMIJNW~:AtTII IW r~:NNSYLVANIA: CIJONTY OF CUMHKRLAND GIJR~:ST A TF.!i BANK N A VS. FA [1,OI!J,n:...~:N .. A J::J' AI. .MJCHA.f.I...J!AnIlICIS. CUMBERLAND County, Pennsylvania, who to law, says, the within COMPLAINT upon Lt\1!&ILSJ~F;Y!ili_Au_ defendant, at 1155:00 HOURS, on 1997 at 525 MT. ROCK RD. NEWVILLE.. PA 17241 , Shariff or Daputy Sheriff of being duly sworn according was served the the ~ day of JanUGrv . CUMBERLAND County, Pennsylvania, by handing to STEVF. FAItOR a true and attested copy of the COMPLAINT together with ~~TICF. and at the same time directing ~ attention to the contents thereof, Shl?riff's Costs: Docketing Sarvice Affidavit Surcharge So answers: _ ,-y' /:,:.d .r~!{.::;?-,"~,c.(.1 ;e:;.;.:.< H. Ihomas K!1ne, ~her1!! 1B.00 5.82 .00 2.00 E;7.b.8:l {) BINGAMAN HFoSS COBL 01/28/1997 by ~ Sworn andd:ubscrib,~to befora me this _ ~_i_=. day OfYJ~ _ m _. . 19__. q.L A. D. --. ~~r-o~~-~~'t'ili'~'- l , " SHERIFF'S RETURN - REGUl.AIl CAS~ NOI 1997-00331 P Cl)III1l)NW~:AI:rH lJf P~:NN!:iYI.YANIA I ClJllNTY lJF CUIIH~:RLAND CQRF.S:rAT.~:S ~At(K N. A YS. fAlI,OR STEVEN A ET AL tUl;;HAEJ._ B'\!iRICK-_ CUll BERLAND County, Pennsylvania, vho to lav, says, the vi thin COIIPI.AINT J Sheriff or Deputy Sheriff of being duly svorn according vas served upon rAILOR CYNTHIA L defendant. at 1155:00 HOURS, on the 27th day of January 199! at 525 liT. ROCK ROAD N~J~YIJ,I..E, t_.pA 17241 the County, Pennsylvania, by handing to STEVE . CUll BERLAND rAIl.OR. ADULT IN CHARm: a true and att~sted ~opy of the together vith ~~~lCE COIII'L~.INT _____..._ ..______________-J _____u____ ..-.1 and at the same time directing ~is att~ntion to the contents thereof. :~h"1" iff' a Costs I Do~keting Service Affidavit Surcharge 1;.00 .00 .00 2.00 S ., ~ o anBwers: "L-" .~).. ~...... . ..~ ~~. ~.. .,..- ~~-r:. R. Thomas K11ne, 5her1ft (it!. (1)[0 HINGAIIAN HESS COBLENr~ & 01/28/1997 ~ - , by , ~:~:n_~;;_~u::;r~:e~ore me 19.__!l.1... A. D. rl ~ () htdl<..o.... A d...c, '-t I ..,rot'hono~ary I)' Snavely, 203 l'a.Super. 162, 199 A.2d 540 (1964) and KinV v. I Jnited States Steel COI11., 432 I'a. 140,247 A.2d 563 (1968). In Kin~ v. United Slates Steel CoI:p., id., the court noted that the plaintilThad demurred to loe defense and "moved to have it stricken." Thus, in th,~ context of objections to new maller, the end result of a demurrer and a motion to strike is the same. Turning to plaintifl's preliminary objections to defendants' new maller, 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 plaintilThas moved to strike the defenses because they do not aver time and place according to l'a.R.C.P. No. 10]9 (I), and because the defenses arc not supported by specific material facts as implicitly required by l'a.R.C.P. No. 1019 (a). The plaintilT 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 confonn to law or to a rule of court or when the pleading includes scandalous or impertinent mailer. Essentially, the purpose ofa motion to strike is to rid a pleading of offensive surplusage or to correct the fonnat to confonn to the rules of good pleading. Albert Einstein 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 elear to enable an opposing party to prepare a response. The pleading docs not need to be overly specific, but must state all material facts upon whieh a cause of action or defense is based. Ouinn v. Marn"", 7 D. & C. 3d 168 (]978). 4 Finally, a demurrer is allowed under l'a.R.CI'. No. 1028 (a)(4) to challenge the legal sufficiency of a pleading. When the trial court considers a demurrer, it must acccpt as true all well plcadcd allegations. County of Alle~hellY v. Commonwealth. 5071'a. 360. 372,490 A.2d 402,408 (]985). If the facts as pleaded state a claim tiJr which rcliefmay be gruntcd or a defense that may be upheld under any theory of law. then there is sullicient doubt requiring the demurrer to bc rejectcd. Philmar Mid-Atlantic. Inc. v. York Street Association 11,389 l'a.Super. 297. 566 A.2d ] 253 (] 989). Wc further note that where a motion to strike is basically directed at whether a plcading is sufficiently specific, it will be trcatcd as a motion for morc specific pleading. RClJal Advcrtisin~ Association v. Tan Broadcastinll Co., 59 Luz.L.Reg. 45 (1968). Failure to aver time and place, for example, is appropriately addressed in a motion lor more specific pleading. Linn v. Morllan, 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 arc essential to the defense. As such. 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 sullicient without having more specific facts. The defendants' second defense is the doctrine of fraud. In Civil No. 333 thc defendants simply state that the plaintiITs cause of action is barred by the doctrine of fraud. In Civil No. 334. the dcfcndants allcge the following tilcts to support the dcfense of fraud. Specifically. the Failors e1aim that at some point aner May 12, 1995. Ralph Fetrow, a Vice-President at 5 Corestates, represented to them that all payments made on the $160,000 note would be deposited into an escrow aeeount, 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 lIccount which they now believe never existed. They claim that Mr. Fctrow'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 plainti ff makes a motion to strike and a motion for more specific pleading because the allegation of fraud is not plead with partieularity as required by Pa.R.C.P. No. 1019 (b). Since the plaintifrs motion to strike is, once again, essentially a motion for more specific pleading, we will deny the motion to strike and only address the motion for more specific pleading. To detennine whether fraud has been pleaded with the required particularity, the court must examine a complaint as a whole. Rule 10 19 (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 plaintitTmnkes 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 alleged establishment of the escrow account, and that 6 the defendants failed to attach a copy of the escrow account agreement as required by Pa.R.C.P. No. 1019 (h). The plaintifTalso motions for a more specific pleading, claiming, generally, that the defendant failed to plead the specific facts and circumstances surrounding the allegation of fraud. Lastly, the defendant has generally and, we should mention, unartfully demurred to the fraud defense.) In regard to the third ground for the plaintiff's 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 rcly on any writing in their fraud defense .. there's no indication that the agreement to form the escrow account wus ever reduced to writing. Furthermore, we feel that the first two grounds for plaintiff's motion to strike are really grounds for a motion for more specific pleading. As such, we deny the plaintiff's motion to strike in regard to the fraud defense. We do, however, find merit in the plaintiffs motion for more specific pleading and the demurrer. In Pennsylvania, the courts have traditionally held that a party must establish five elements in order to demonstrate fraud: (I) 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 us the proximate result. Brindle v. West Alle~heny 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 plaintifTalso claims that "the factual avemlents set forth in defendant's new matter arc legally insufficient as a defense to the matters set forth in plaintiffs complaint. 7 , \ } The defendants claim that the Vice-President at Corestates represented to them that they could put their money in an escrow account which would somehow also satisfy their loan obligation. The defendants also claim that they relied on the representation. und have not been able to satisfy their obligation as a result. The defendants fail. however. to aver facts which indicate that the Vice-President made an intentional misrepresentation. Rather than strike the defense at this point. we will grant the defendants time to amend. Furthennore. we believe that the defendant's avennent 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 2 I. 1997 -- a very broad period of time. We. therefore, believe the defendants should state more specifically the time and place where they met with the Vice-President or at least explain why they arc 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 arc the same. The only ditTerence in our analysis of these objections results from the ditTerent elements constituting the defense of equitable estoppel. Equitable estoppel arises when one by his acts, representations. or admissions, or by his silence when he ought to speak out. intentionally or through culpable negligence induces another to believe certain facts to exist and such other rightfully relics and acts on such belief so that he 8 will be prejudieed if the former is permitted to deny existence of such facl. Mudd v. Nosker Lumber. Inc., 443 Pa.Super. 483. 662 A.2d 660 (1995). Since equitable estoppel requires only negligent inducement. we feci the defendants have pled sufficient facts to warrant the defense. We note, however, that the defendants must still plead with more specificity the time and place of the misrepresentation as we mentioned above. Lastly. we address the defendants' three final defenses in Civil No. 333: Estoppel, consent, and release. Each of these defenses is pled generally as a conclusion oflaw. As such, we grant the plaintiff's 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 ~tl day of August, 1997, following argument thereon, it is ordered and directed as follows: I. The preliminary objections of the defendants to the preliminary objections of the plaintiff are 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 amendment, said defense to be stricken. 3. The preliminary objection of the plaintiff in the nature ofa motion for a more specific pleading on the defense of fraud is SUSTAINED and the defendants are given twenty (20) days within which to amend in accordance with the opinion filed of even date herewith. Upon failure 9 ~ r r ! , t NEWMA77'ER . , , , 7. In July of 1993, Defendant Steven Failor inherited property totaling 144 acres situated in Newville, Pennsylvania, along with a pecuniary bequest. 8. Approximately one year after the estate settled, Steven and Cindy Failor were directed by employees of the Carlisle office of Meridian Bank to the Camp Hill branch to negotiate the check representing their cash distribution from the estate. 9. In the Spring of 1994 when the Defendants presented the check. a Marie Freeman, believed to be a banking associate, set up an appointment for the Failors to meet with Ralph J. Fetrow, a bank vice-president. 10. During the initial meeting between the Defendants and Mr. Fetrow, who at all times held himself out as acting in his official capacity of bank employee, Mr. Fetrow infonned the Defendants they had just "hit the lottery" and told the Defendants that if there was anything they wished to do with the equitable interest in the property, he could assist them in reaching their goals. 11. Over the course of the next two years, Mr. Fetrow advised and convinced the Defendants to embark on an elaborate and free-spending scheme of borrowing against the property. 3 12. This scheme resulted in the Defendants being obligated on approximately fifteen (15) loans through the Plaintiff's institution, including the $160.000.00 at issue in this case. 13. The current loan was for construction of the Failor's personal residence. 14. Mr. Fetrow was advised that Defendants had sold their previous residence, 203 Smith Road, Shippensburg, Pennsylvania ("Smith Road Property"), to a Michael Ziegler for $140,000 with payment to occur over time with closing to occur in May of 1996. 15. The Defendants infonned Mr. Fetrow that the proceeds of the sale of the Smith Road property were to go for satisfaction of the $160,000.00 loan. 16. During a meeting between the Defendants and Mr. Fetrow, Mr. Fetrow advised the Defendants that an escrow account would be set up to hold the proceeds of the Smith Road sale until closing at which time they would be applied to the $160,000.00 loan. 17. Mr. Fetrow advised that the reason for establishing the escrow account was so that the funds could earn interest until closing. 18. It is believed that despite his representations, Mr. Fetrow never established the escrow account. 4 19. Mr. Fetrow also advised that all payments from the Smith Road property, which Mr. Ziegler often made in cash, were to be deposited directly with Mr. Fetrow. 20. The Defendants reasonably relied on Mr. Fetrow's representations and made the deposits directly to him. 21. The following funds were tendered to Ralph Fetrow for deposit in the "escrow" account and ultimate payment towards the $160,000.00 loan: On or about 9/25/95 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. $15,000.00 On or about 10/14/95 . . . . . . . . . . . . . . . . . . . . . . . . . .. . . .. $20,850.00 On or about 11/1/95 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. $45,000.00 On or about 5/10/96 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. $40.000.00 22. During the Failors' involvement with Meridian/CoreStates, they did not receive regular statements detailing their accounts and loans with the Plaintiff. 23. Despite this deficiency being raised with the bank on numerous occasions, it was not corrected. 5 24. Due to the absence of contemporaneous receipt of bank statements, the Failors are incapable at this time of identifYing further payments given to Ralph Fetrow as satisfaction of the $160,000.00 note. 25. The Smith Road property settled in May of 1996. 26. At closing, the Failors were informed for the first time that despite tendering significant deposits to Mr. Fetrow, which he had represented would be held in an interest bearing escrow account, they were still indebted for the full amount of the $160,000.00 loan. 27. Upon learning that the funds given to Mr. Fetrow were not available for application against the $160,000.00, the Failors demanded an accounting of their deposits. To this day, Plaintiff has failed to provide a full accounting of all of the Failors' funds. 28. The Failors reasonably relied on Mr. Fetrow's representations regarding the establishment of an escrow account, which said reasonable reliance created an incorrect und~rstanding regarding their total level ofindebtedness. 29. Believing that the $160,000.00 loan was being reduced, Mr. Fetrow induced the Failors into overextending their debt service thereby jeopardizing their solvency. 6 . .._....._-~-~_..-- t, I ! , ,') 'J ., " . . , i . ." ) ," } > , . . ., I >.J 0', CORESTATES BANK, N.A" successor by merger to MERIDIAN BANK, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA 97-334 CIVIL TERM vs. STEVEN A. FAILOR and CYNTHIA L. FAILOR, Defendants CIVIL ACTION - LAW iN RE: PLAINTIFF'S MOTION TO COMPEL ANSWERS. pRDER. AND NOW, this 2- 'f - day of August, \997, a rule is issued on the defendants to show cause why the relief requested in the within motion ought not to be granted, This rule returnable twenty (20) days after service. BY THE COURT, r-}.q -17 (I 'j-LU ",,-,J-<,L j,., ,j 4,..,c, JvV1 ~ c:, & ~ Uk:C t Ju~'cIA- r-o . t BINGAMAN, HESS, COBLENTZ & BELL, P.C. By: David E. Turner, Esquire Identification No. 19380 plaintiff 660 Penn Square Center 601 Penn Street P.O. Box 61 Reading, PA 19603-0061 (610) 374-8377 Attorney for 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. 97-334 civil Plaintiff vs. STEVEN A. FAILOR and CYNTHIA L. FAILOR, Defendants CIVIL ACTION - LAW MOTION OF PLAINTIFF TO COMPEL DEFENDANTS' ANSWERS TO PLAINTIFF'S FIRST SET OF INTERROGATORIES AND REOUEST FOR PRODUCTION OF DOCUMENTS Plaintiff, CoreStates Bank, N.A., successor by merger to Meridian Bank, hereby moves the Court to enter an Order pursuant to Pennsylvania Rules of Civil Procedure 4019, compelling Defendants to answer Plaintiff's First Set of Interrogatories and Request for Production of Documents Directed to Defendant, Steven A. Failor, and Plaintiff's First Set of Interrogatories and Request for Production of Documents Directed to Defendant, Cynthia L. Failor. In support of this Motion, Plaintiff avers as follows: 1. On or about June 13, 1997, Plaintiff served Plaintiff's First Set of Interrogatories and Request for Production of Documents Directed to Defendant, Steven A. Failor, and Plaintiff's First set of Interrogatories and Request for ~ I 0 ~ . . 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 .. . 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 Xli THE COURT 01' COMMON PLEAS 01" ctlMBBRLAND COUNTY, PBNNSYLVAN:tA 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 () '.::J ~ c: -.J ~ '- =' ~;.. C n~::":'; ::..: ,.;';:>:1 -;"-''' -'E;3 ~:i~ :"J <=> 'I) (.\..... .J~ .~ - ~- _. ,-' -"2" ......... :3 ...:-:: :J' ;~f, -~~ ,~c ~ d ;..-: ~ ';! ~ ~ -< lJ'\ PROOF OF SBRVICE 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 77'(.-:, C~~<.._ 111/~o:." ._ Mahssa N. Young /" J' Sworn to and subscribed before me this ji-t...h day of (\ J Y\ C 199 ? v ""{- . L. I Ll . i '.7': .l" 1:1'. ,.G JI. lic ~- -- ,--...-... 1\',!DGIIl-~1lL -~JlT7.1117 ...,.....,.....,..,.......-.. - ,...~ . " Any Interrogatories which directly require an answer showing the mental impressions of the party's attorney or his conclusions, 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 "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. 2. The terms "Plaintiff" means and refers to Core States 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 "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, director, employee, 112569.1 . /. owner, partner, executor, trustee, agent, representative or successor or assignee thereof. 5. The terms "relating to", "connected with" and "in connection with" mean constituting, comprising, containing, setting forth, ahowing, disclosing, describing, explaining, summarizing, concerning or referring to, directly or indirectly. 6. 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. 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 appli~able 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 112569.1 . I 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. 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" 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 112569.1 . i 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. 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, amount 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, "N/A" 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. 112569.1 h'..;..................___.. ~ . 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. J. 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. 112569.1 . ~ 5. Describe the alleged agreement by the Plaintiff to establish an escrow account on behalf of the Defendants. Include the date(s), time(s), and placets) of this alleged agreement; the identity of any witnesses to any alleged conversations in which the Plaintiff agreed to establish this escrow account; and the identity of any documents produced in connection with this agreement. t 6. Describe the escrow account that the Plaintiff allegedly agreed to establish. Include the type of escrow account, date and time when the account was to be established, names to be placed on the account, whether the account was to be interest-bearing, how long the money was to be held in the escrow account, any other terms or conditions of this account, and the identity of any documents related to this alleged escrow account. 7. Explain why established and why the the terms set forth in an alleged escrow account account was to be established Interrogatory 6 above. was to be according to 112569.1 . . 11. Describe all details of Defendants' alleged defense of fraudulent misrepresentation against the Plaintiff set forth as New Matter in Defendants' Answer to Plaintiff's Complaint. Include dates, times, and places; the identity of any witnesses; and the identity of any documents or exhibits that are in any way related to these allegations. 12. Describe all details of Defendants' alleged defense of payment against the Plaintiff set forth as New Matter in Defendants' Answer to Plaintiff's Complaint. Include dates, times, and places; the identity of any witnesses; and the identity of any documents or exhibits that are in any way related to these allegations. 13. Describe all details of Defendants' alleged defense of fraud against the Plaintiff set forth as New Matter in Defendants' Answer to Plaintiff's Complaint. Include dates, times, and places; the identity of any witnesses; and the identity of any documents or exhibits that are in any way related to these allegations. 112569.1 14. Describe all details of Defendants' alleged defense of estoppel against the Plaintiff set forth as New Matter in Defendants' Answer to Plaintiff's Complaint. Include dates, times, and places; the identity of any witnesses; and the identity of any documents or exhibits that are in any way related to these allegations. 15. 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. 16. State the name and address of any and all individuals whom you expect to a call as witnesses at trial. 17. With reference to paragraph 16, state the content of the testimony of each witness including the relevant factual assertions to which that witness will testify. 112569.1 , (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. 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. 112569.1 -----~--._--..-_.- . t , ;. . 3. In the event that any Document sought by these requests has been destroyed or is discarded, that Document is to be identitied 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, facsimi les, pr ints, 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. 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 1121159.1 . interpreted disjunctively to exclude any document otherwise within the scope or 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 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. 112569.1 . 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. ~ r 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. :c 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; 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 112569.1 . Any Interrogatories which directly require an answer showing the mental impressions of the party's attorney or his conclusions, 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 "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. 2. The terms "Plaintiff" 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 "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, director, employee, 112569.1 . owner, partner, executor, trustee, agent, representative or successor or assignee thereof. 5. 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. 6. 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. 7. As used herein, all words used in their. singular form shall be deemed to include the words in their plural form. f 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 112569.1 . 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. 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" and/or "state" unambiguously every fact relevant to interrogatory or by the Defendant, representatives have knowledge. 14. Identify separately wi th 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 112569.1 . 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. 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, amount 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, "N/A" 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. 112569.1 . 5. Describe the alleged agreement by the Plaintiff to establish an escrow account on behalf of the Defendants. Include the date(s), time(s), and placets) of this alleged agreement; the identity of any witnesses to any alleged conversations in which the Plaintiff agreed to establish this escrow account; and the identity of any documents produced in connection with this agreement. 6. Describe the escrow account that the Plaintiff allegedly agreed to establish. Include the type of escrow account, date and time when the account was to be established, names to be placed on the account, whether the account was to be interest-bearing, how long the money was to be held in the escrow account, any other terms or conditions of this account, and the identity of any documents related to this alleged escrow account. , i I I I 7. Explain why established and why the the terms set forth in an alleged escrow account account was to be established Interrogatory 6 above. was to be according to 112569.1 . 8. Describe in detail all payments, which the Defendants tendered to the Plaintiff to be placed in the alleged escrow account. Include who tendered the payments; the exact amount of the payments; method of payment; date of payments; place and time of payment; the balance of the escrow account after the last deposit 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. 9. Identify all receipts and records of any deposits, which the Defendants paid to the Plaintiff to be placed in the alleged escrow account. 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. 10. Identify any witnesses to any payments the Defendants made to the Plaintiff to be placed in the alleged escrow account. {I ;'1 . . .. 14. Describe all details of Defendants' alleged defense of estoppel against the Plaintiff set forth as New Matter in Derendants' Answer to Plaintiff's Complaint. Include dates, times, and places; the identity of any witnesses; and the identity of any documents or exhibits that are in any way related to these allegations. 15. 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. 16. State the name and address of any and all individuals whom you expect to a call as witnesses at trial. 17. With reference to paragraph 16, state the content or the testimony of each witness including the relevant factual assertions to which that witness will testify. 112569.1 . (d) The name and address of the person or entity that hired or retained the person who conducted each interview; r (e) Whether each such interview was written, mechanically, electrically or otherwise recorded, or transcribed; (t) The names and addresses of all persons and/or entities who presently have custody of each interview or notes evidencing such interview identified in your answers above; and (g) The names and addresses of all persons and/or entities who presently have custody of any copies of each interview or notes from such interviews identified in your answers above. 20. 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: 112569.1 --- . t " 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: ,. (al 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; ee) Its date of destruction or discard, manner of destruction or discard and the reason for destructior. or discard; and (fl 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, facs imiles, pr ints, drawings, specif ications, 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. 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 constitut:ng, 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 112569.1 , - . . 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 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 telephon~ 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. 112569.1 ...... . 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; 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 112569.1 -.'" 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: ~/n/~l BINGAMAN, HESS, COBLENTZ , BELL, P.C. B~j)r (:v vi E. Turner, Esquire Attorneys for Plaintiff 112569.1 . ') ll. , (') .0 Cl ~:; ...J '1\ .~ .j -r;. .;~; ,:'1 r' :'. "r- = "" ~ll-n I':) .-l ~t., : .. ..-'.' .., ,~ -. \ ..1'1 ~ )., ,( , - ~.: ' ;1'" .' :11 :;:.~ ~~ "J ,~ ;<: L~UG 2 8 1'1\~ 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. 97-334 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 All . ,\ll, \'\'), by United States first class mail, postage prepaid . J upon the following party: Thomas J. Weber, Esquire GOldberg, Katzman & Shipman, P.C. 320 Market Street, Strawberry square P.O. Box 1268 Harrisburg, PA 17108-126S ~ J I fA \', / I(r.t"-, II _,(~ David E. Turn , .rtt( Esquire DATED: YJl.','I s. Denied. After reasonable investigation Plaintiff is . r 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. 119855.1 12. Admitted in part and denied in part. It is specifically admitted that the Defendants are obligated to the Plaintiff on the loan obligation set forth in the Complaint as well as certain other loan obligations. However, the averments contained in this Paragraph 12 are specifically denied to the extent that after reasonable investigation Plaintiff is without knowledge or information sufficient to form a belief as to the truth of these averments, and thus, they are hereby denied. strict proof is demanded at the time of trial, if relevant, which relevancy is strictly denied. 13. 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 13, and thus, they are hereby denied. strict proof is demanded at the time of trial, if relevant, which relevancy is strictly denied. 14. 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 14, and thus, they are hereby denied. strict proof is demanded at the time of trial, if relevant, which relevancy is strictly denied. 15. Denied. It is specifically denied that the Defendants ever instructed the Plaintiff to apply the proceeds from the sale of the real estate located at 203 smith Road, Shippensburg, Pennsylvania to the loan obligation which is the subject of this proceeding, or that such instructions would have been binding upon the Plaintiff. It is further denied that Plaintiff ever agreed to 119855.1 :fJ apply the proceeds from the sale of this real estate to the loan obligations of the Defendants in this manner. strict proof is demanded at the time of trial, if relevant, which relevancy is strictly denied. 16 - 17 - 18. Denied. It is specif ically denied that the Plaintiff ever agreed to establish an escrow account to hold any proceeds. By way of further response, the Defendants never took any steps to open an escrow account with the Plaintiff. strict proof thereof is demanded at time of trial, if relevant, which relevancy is strictly denied. 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 thereof is demanded at time of trial, if relevant, which relevancy is strictly denied. 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 thereof is demanded at time of trial, if relevant, which relevancy is strictly denied. 21. 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 21, and thus, they are hereby denied. strict proof thereof is demanded at time of trial, if relevant, which relevancy is strictly denied. By way of further response, it is specifically denied that the 119855.1 Defendants ever tendered any money to the Plaintiff for deposit into an escrow account, as the Defendants never took any steps to open an escrow account. In addition, it is specifically denied that the Defendants tendered the sums set forth in this Paragraph 21 for application against the loan obligation in question, and strict proof thereof is demanded at time of trial. 22 - 23. 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 22 and 23, 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 respcnse, the Plaintiff consistently provided the Defendants with timely bank statements and other information regarding their deposit and loan accounts. 24. Denied. After reasonable investigation Plaintiff is without knowledge or information sufficient to form a belief as to th'9 truth of the averments contained in this Paragraph 24, and thus, they are hereby denied. strict proof thereof is demanded at time of trial. 25. 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 25, and thus, they are hereby denied. Strict proof is demanded at the time of trial, if relevant, which relevancy is strictly denied. 26. Denied. After reasonable investigation Plaintiff is without knowledge or information sufficient to form a belief as to 119655.1 the truth of the averments contained in this Paragraph 26, 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, it is specifically denied that the Defendants were under any type of confusion as to their obligations to the Plaintiff, or that if any confusion actually existed, that such confusion was reasonable or grounded in logic. In addition, the Plaintiff incorporates by reference its reply to Paragraph 22 and 23 above as though it were set forth in full herein. 27. Denied. The Plaintiff incorporates by reference its reply to Paragraph 26 above as though it were set forth in full herein. By way of further response, the Plaintiff consistently provided the Defendants with timely bank statements and other information regarding their deposit and loan accounts, and the Plaintiff believes and, therefore, avers that the Defendants were aware of the amounts they had paid on behalf of their loan obligations and deposited to their bank accounts. 28 - 29. 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 28 and 29, and thus, they are hereby denied. strict proof thereof is demanded at time of trial. In addition, it is specifically denied that the Defendants were under any type of confusion as to their obligations to the Plaintiff, or that if any confusion actually existed, that such confusion was reasonable or grounded in logic. 119855.1 " 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, rOO, ,,", IN THE COURT OF COMMON PLEl\B ()P CUMBERLAND COUNTY, PENNSY.L'lTANi~ ~. ! ") No. 97-334 civil ~~ (:' ,., ',. Plaintiff ',) vs, 'r! I.. .. 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 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 September 23, 1997, addressed as follows: Thomas J. Weber, Esq. P.O. Box 1268 Harrisburg, PA 17108-1268 A copy of the service letter is attached hereto as Exhibit "A". u~t ((1 .1/"", l Charles N. Shurr, Jr., Esquire t . \ {'} .n -;1 d;TI ,"" I':J .~~) ... II ,:J .c, ': ;1'\1 ! ~-~J ., ~ (') \Q !:?, c: -.J ".. V> ;:I .,,6'1 ,'tl t1J; ... '0 ,-C' "!l "r~ " ,,) -,~ e'l .1 " i ., ..,.., ~I.;, ;'0' -.' , ~1:H "''n~ .' ~ I ":~ U' , ~ ".. ,-, ~'1 -,- ., ~ ...., .1=" "< ~ OCT 1 5 199~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. 97-334 Civil STEVEN A. FAILOR and CYNTHIA L. FAILOR, Defendants CIVIL ACTION - LAW ORDER AND NO\'I, this I b t: , 1998, Cic.J? b"" day of 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 $112,372.67 plus interest at the rate of 9.75% 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 fr/[- J. / i i I j I I I i , I I I I , ~ ~ f;? r. ~ ~ ) ..:! l.\l t' ~ ~ ... I\' ..:) I) ...... ~ .., ~ ~"\ :t ~ -f'1fJJ . fcJ - 'b.u . " , , ., . ., " .n . '". ,I ,) '.~ J L.') r :() .. , ',;\ ~ l. ') .,11 ....:? ...; .-1 "', "j] " r') :...::.