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WINK' E "l.P t,' , '.\'11<1' 1',\,', I loI'"" 'i' .!'t'.... ,'l':ilfl.,'I'!.:!;,',iI ' .,:' " "i" ,'^'rr~IU>I~~.I\1:'~A~' }'I'''' j!" r, ') I' 'I" _, .. .. ,","'J 1'.,11 f,"1 'I '. I" '>" .-L,.._.I'.............~ : ~~'~"il' c )1' --L\r..",.~,...~f_..t, " ~l,Jl\\ , l' " II, 11 , \ \ .,'" .. '." ,'_ '. "1" .... _. ,,'\. \'/ I ~"I!', ,.. yr , ."~I,ji,k,,,,, 1". L""l "","I"~~, IlCMl) JI1/Atr\j~'lJ 'tj.~~,'."..! I" '}I,; '." -- nA.P~~ " j \j,~lj"l!;\ .J E" "\',\0-" -:, \',", ... ,-",' .., '-1.... 11'")1,1 )1'lil\I'\'I;,';"j,,1 I" \ ';",';,1'(.'_, -i'l"IWN.~. i!Ji,ljn\~~,t 'y ,I~,l"" ;;\':_~"" -'1.'-';""'-", ~f:~,'L~I\'r;'J!i: .'i~:!, " ';) 'l'\>;lii'~~,~/\:"'" ;'\: . . . ", . , ." r (' \ 1 \ ,.-, , ( I I l, \ '. ~ , -' o"'lJo._ .. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA KOHL ROOFING & SIDING CO. d/b/a KOHL BUILDING PRODUCTS Old Bemville Road P,O, Box 14746 Reading, PA 19612 Plaintill: vs, No, 97.S668.Civil JOHN MCCALL 3000 Whitehurst Court York, PA (") ::3 9. ('" ,'I ~ I ..,-,\ .,~ -" r.IJtl" ,.... 11'- - 1"') ,JiLl ~;. , '.:('>:. l:;:J .' ~ ;~) r~' " -'J 1'/\ '~-' .- - I :<" . . ! ;.:") I , , 'I'fl .' '{" N ~:)I .. 1" ',. ';] :'1 ~. t...~ -... and JEFFREY ST ALTER 41 S Lake Street Ephrata, P A Defendants. PRAECIPE TO LIST FOR ARGUMENT TO THE PROTHONOTARY: Please list the Preliminary Objection of Defendant Jetli'ey A. Stalter for argument on December 10, 1997, Date: November 18, 1997 ::~~77>> EmfL. Winkle, Esquire Atty. to. No. 57946 30-A East Roseville Road Lancaster, PA 17601 717-581-0620 Attorneys for Defendant, Jell'rey A Stalter FiI.r:J )-cm:E ef 1'[ ! ,,-,! !','; '/)rl\RY 1)7 ~:nll I 9 r:" 'II "'0 II {. 'II cu~),jl:"-':' i"" , , I ~I.~r\t',;r_, '"/'L" rrv '. "I.; , I r '!',I'\'!' (1...;\'./\ " , , ' " " " 'I' " I,' " , , " I " , " " I,; I, '\ -.....' " \ , , . ;,1,;' F',' _ -, ,lA-. \iJ.''''-;~I- '-:;, -, I ',...., 'J) ~,." 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I II " , I~:I! ,,' , ~ ~.:..~.- ';n...-- ~-:-"'M'.:~ 2, Attached to Kohl's Complaint as Exhibit "A" was Kohl's "Business Credit Application" (hereinaller the" Application"), It is pursuant to that Application that Kohl asserts it had the right to confess judgment against Petitioner lor $34,441,12. 3, The Application reads in part "I/WE hereby unconditionally PERSONALLY GUARANTY to the Company [Kohli the prompt payment, when due, of every claim of the Company which mllY herellfter llrise against McCall Homes, Inc," Sm: Application, Page I (emphasis added), Accordingly, to the extent that any personal guaranty was made by Petitioner, it was only lor claims of Kohl which arose aileI' the date of the Application, Petitioner signed the Application on May 8, 1997, 4, Under Pennsylvania law warrants of attorney to confess judgment are strictly construed according to the language of the warrant. Thus, any claims of Kohl which were in existence before May 8, 1997, were not personally guaranteed by Petitioner and Kohl was not authorized under any circumstances to obtain or conless judgment against Petitioner lor such pre-guarlll1ty claims, 5, Attached hereto as Exhibit" A" are true and correct copies of all invoices Irom Kohl to McCall Homes, Inc. tor materials shipped on or aileI' May 8, 1997 and rem:lining unpaid as of this date, Those invoices total $14,254,07, which includes $1,202,67 of "late charges", 6, According to the terms of the attached Kohl invoices, late charges were imposed on all payments which were past due by more than 30 days, In the Judgment confessed against Petitioner, Kohl included late charges tor amounts which were due and past due before Petitioner signed the Application (May 8, 1997) - 2 - 7, Kohl included in the conleHsed Judgment over $14,000 ol'items which predate the Application and therelore, pursuant to its own ternlH, were not subject to the guaranty of Petitioner and lor which no warrant of allorney to confess judgment was ever signed, 8, Kohl included items in the conlessed Judgment which were not authorized in the warrant of allorney to conlesH judgment. 9, Pursuant to the Complaint lor conleHsion ol'judgment, Kohl demanded allomeY'H fees in the amount 01'$5,548,00, 10, Those legal lees represent twenty percent (20%) of the total principal debt claimed to be due 01'$27,738,69, As discussed above, over one halfol'the principal amount 01'$27,738,69 was lor claims arising prior to Petitioner's execution ol'the Application, 11. Accordingly, over one half of the legal lees requested by Kohl are lor claims that arose prior to the execution of the Application and such legal lees are themselves not authorized by the purported warrant to conless judgment. Accordingly, Kohl has conlessed judgment lor legal fees which were not authorized in the warrant of allorney to confess judgment 12, If a conlessed judgment includes an item not authorized in the warrant, the judgment is void in its entirety and must be stricken, WHEREFORE, Petitioner Jeflfey A Stalter hereby requests this Court strike the judgment of Kohl Roofing & Siding Co, COUNT II WARRANT OF CONFESSION 'NV ALID I J, The averments of paragraphs of I through 12 are incorporated herein by referenced u . 3 - though set torth in full. 14. In order tor a warrant to contess judgment to hll valid, thll dllhtor must knowingly waive his Constitutional due process rights, 15, In this case, Petitioner was unaware that a warrant to contess judgment was contained in the Business Credit Application, 16, The purported warrant to confess judgment is contained in the last paragraph of the lirst page of the Application in a sentence that is 139 words long, The sentence starts with the non-sensical phrase "This Guarantors" and contains confusing language in which singular and plural nouns and verbs do not match. The purported warrant to conless judgment is implied in that confusing sentence rather than stated clearly and concisely so that Petitioner would understand the intended meaning oftlte provision. Specifically, Kohl has conlessedjudgment solely based upon the appointment of "Joseph T. Kearse, as attorney-in-fact lor the purpose of conlessingjudgment", ~,Application, Page 1. 17, That confusing and seemingly innocuous provision buried in a run. on sentence is the sole basis upon which Kohl has conlessed judgment against Petitioner, 18, That same 139 word sentence includes provisions which attempt to select venue for six states, McCall Homes, Inc, never did business outside of Pennsylvania, 19, Petitioner did not understand that he was signing a document which Kohl would interpret to allow it to conless judgment against him, 20, The authority to contess judgment contained in the Application was not clear or explicit and appears to have been designed to be innocuous and confusing, - 4- 21, In order lor a conlesslon of judgment provision to be valid, the debtor must knowingly waive his due process rights, In this case, Petitioner did not knowingly waive his due process rights, WHEREfORE, Petitioner Jem-ey A, Stalter requests this Court strike the judgment of Kohl Roofing & Siding Co. COUNT III GUARANTY AND WARRANT TO CONFESS INVALID 22. The averments of paragraphs of 1 through 21 are incorporated herein by relerenced 85 though set torth in full. 23, The Petitioner Eigned the purported warrant to confess judgment in his corporate capacity 85 Secretary and Treasurer of McCall Homes, Inc, Petitioner did not sign tlte Application in his individual capacity, 24, Petitioner signed the Application in his corporate capacity because the language of it was so confusing that he did not understand that Kohl might later use the Application to impose personalliabitity against Petitioner lor the debts of McCall Homes, Inc, Further, Petitioner did not understand that Kohl would later use the Application to confess judgment against Petitioner for corporate debt of McCall Homes, tnc, 25, The language dratled by Kohl in its Application was too confusing lor Petitioner to understand the use to which Kohl might later put that Application Therefore, judgment should not be confessed against Petitioner for debts which he could not reasonably have known Kohl would expect him to pay personally. . 5 . WHEREFORE, Pethioner Jellrey A, Stalter requests this Court strike or open the judgment of Kohl Rooling & Siding Co. COUNT IV UNREASONABLE LEGAL FEES DEMANDED 26. The averments of paragraphs of I through 25 are incorporated herein by referenced as though set forth in full, 27, The Judgment included attorney's lees 01'$5,548,00, That represents twenty percent (20%) of the principal amount 01'$27,738.69, 28, Aside trom sending a single demand letter on August 4, 1997 and preparing the Complaint for confession of judgment, it does not appear that Kohl's attorneys performed any other legal services in connection with the contession of judgment. 29. Legal tees 01'$5,548,00 are not reasonable tor the sending oflhe one-page letter and preparation of a Complaint containing 10 paragraphs, 30, If the personal guaranty and warrant to contess judgment in the Application are valid, Kohl is entitled to recover only reasonable attorney's lees trom Petitioner. The amount of attorney's fees tor which judgment was contessed in this case, is not reasonable, WHEREFORE, Petitioner Jetlfey A. Stalter hereby requests this Court open the judgment obtained by Kohl Roofing & Sid;ng Co. COUNT V VENUE NOT PROPER IN CUMBERLAND COUNTY 31, The averments of paragraphs of I through 30 are incorporated herein by referenced as - 6- though setlorth in full. 32. Kohl conlessed judgment against Petitioner in Cumberland County, Pennsylvania, 33, Petitioner is now and has been at all times relevant hereto a resident of Lancaster County, Pennsylvania, 34, The other Delendant against whom judgment was conlessed, John McCall is now and has been at all times relevant hereto a resident of York County, Pennsylvania, 35, The corporate debt pursuant to which judgment was conlessed was incurred by a Pennsylvania corporation with a registered ollice and only place of business located in York County, Pennsylvania, 36, Plaintill'is a Pennsylvania corporation with its principal ollice located in Berks County, Pennsylvania, 37, Neither the individual Defendants nor the primary debtor, McCall Homes, Inc. have a residence, place of business or other contacts with Cumberland County, Pennsylvania, 38, PaRCP, Rule 1006(a) reads in pertinent part "an action against an individual may be brought in and only in a county in which he may be served or in which the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose", 39, No cause of action amoHg the parties aro~e in Cumberland County, 40, There was no transaction or occurrence between McCall Homes, Inc" Petitioner or John McCall and Kohl which arose or took place in Cumberland County, All transactions and occurrences among the foregoing took place in either Lancaster County or Yark County. - 7. 41, Kohl has attempted to assert venue in Cumberland County based upon a purported venue selection clause contained in the last sentence of the first page orits Application. That sentence is 139 words long, begins with a non-sensical phrase "This Guarantors" and includes confusing language in which singular and plural nouns and verbs do not match, In addition, that same sentence includes similar venue provisions lor si" dillerent states, 42, Petitioner did not understand, due to the confusing nature of Kohl's Application, that Kohl would later assert that Petitioner had agreed to venue in the courts of Cumberland County, Pennsylvania. In addition, at this time Petitioner still does not know which court is the "Circuit Court of Cumberland County, Pennsylvania", 5.<<, Application, Page L 43, Although venue selection clauses are no longer invalid per se in Pennsylvania, private parties cannot change by contract the rules ofjurisdiclion or venue embodied in various laws of the Commonwealth, 44, Venue is not proper in Cumberland County, despite the confusing language of Kohl's Application, 45, Although the parties to a contract are permitted to select or limit the appropriate torums in which actions will be brought, they cannot rewrite the Pennsylvania Rules of Civil Procedure to include additional venues which are not otherwise authorized, 45, Petitioner cannot be held to an invalid venue selection clause, especially when it is so confusing and poorly written that Petitioner could not understand the use to which the provision would later be put by Kohl. - 8 - I . MR'O~[TS - KOHL BUILDING PRODUCTS 860 WESLEY DRIVE KECHANICSBURG PA 17055 '!!D RE"IT TOl PO BOX U7<46 READING PA 19612 ItCC"LL HOftES INC 10 PATIIIL PLACE ~VER PA 17331-8205 5 "CCALL HO"ES INC H LOT 5 LAURENCE DR I P HANOVER PA 17331-8205 SHIP VIAl KOHL TRUCK ~ "ESO:717/633-7327 c..CO PO ':9705 SCOTT - / ACCTlIICC020 III\I.:33<4525 REF': INV DATE:05-09-97 SHIP DATE:05-08-97 FRT TER": 1<4:03 'IIHSE' PAGE: 1 OIS SLItN:0023 lIS SL"N:030<4 ORDER QUANTITY ----------------------------------------------------------.------------------------------------- PRICE EXT SHIP UNIT ITE" SIZE UO" 2 2 -------------------------------------------------------~._--------------------------------------- 8<4.7<4 2 SQ EDL<45807 ENCORE <4.5' D-LAP CLAY SQ ....... SUB-TOTAL ...... 6lI PA SALES TAX ...... TOTAL ...... - ".-.--...- --- , - .. - --.-- -- , v.n --- - .. ,. 'V.. _.llII - ."to. "I:1Q1IIlIllC:!2' -- .... MAY 1 :.; REC'U " SERVICE CHARGE OF 1-1/2' PER "ONTH (18' PER YEAR) ON ALL PAST DUE A"OUNTS PAY TE~S: 2' 10TH. 25TH NET 30 DUE DATE: JUNE 10, 1997 YOU KAY DEDUCT $1.69 IF PAID ON OR erFORE "AY 25, 1997 A Service Charge of 1.'/'% per monlh (18% per year) on all past due amounls. Ittalln~. P^ UIIO) lJ2f).MKO(J -1^IOII)2h-flKOt't Fu ~Ilhn~>>",~r, 1./\ 17l7I.l1~.II~Mh -17171.\7.I.:\n9 F,n . llHo\IWIlt:S . M'''l;hJnll;~hurv. PA (717171)()..iJMI~. 1711) M7.1)42K Fa" r:l\'lll,'rl~'II., MI> 1.11111 (l1):'.~H:\ oj.1UII "11.~.II).lI) Fou, \, I \ . '. 7 7 'MI. 1 \ HI. 11M. N.\I) fot' S'n"..l.hull. PA 1717) 992"110O'1111) 992.*..: ,II'""".. Po\ 'K14) NI"Q217 '1114169$.,",,",:" l)i' <42.37' 8<4.7<4 5.08 89.82 KOHL BUILDING PRODUCTS KOHL BUILDING PRODUCT~ 060 WESLEY DRIVE MECHANICSBURG, PA 17055 REMIT TO I PO BOX 14746 READING, PA 1~612 .. JOt";,,_ "(;.~. .. ,.1......... ;:"'(:'':1'''' ",...' ,\,';t',....~~.;,...~A:t.', I/........(~~. .. " ,.'_'~ MCCALL HOMES INC 10 PATWIL PLACE HANOVER PA 17331-B205 S MCCALL HOMES INC H BRITTANY MEADOWS I P RED LION PA ACCT:MCC020 INV DATE:05-20-~7 16:07 SHIP VIA: PAGE: INV.:332714 SHIP DATE:05-1~-~7 'WHSE' MESG:EARLY AS POSSIBLE!!!! 0/5 SLMNI002: ~:~~~-------_.._--~~~-~:~~~------------------~~-~~~~~~-~~~~~-------------_:~~-~~~~~~~~: ORDER SHIP UNIT ITEM SIZE UOM QUANTITY PRICE EXl ---------------------------------~--------------------...---------------------------------------. 3 3 EACH N800006070 32 X 3B EACH SIMONTON PRO-FINISH 2B32 DOUBLE HUNG 2 EACH NB0000607~ 36 X 38 EACH SIMONTON PRO-FINISH 3032 DOUBLE HUNG 3 133.420 400.2< 2 2 147.550 2~5.H 2 2 EACH NB00006080 36 X 54 EACH 2 SIMONTON PRO-FINISH 3046 DOUBLE HUNG 1 EACH NB000060~~Jt~3~'fI~'tl.,~~A~~ 1 ~~~NlI:::t!t:~.~Mbg~~~~~!:t~~~~&.~ 16'.7~0 33'.5l: 1 160.360 160.3, 1 1 EACH NBO~2P~~~0!..~;V~4 >l:~'I"lI11~~~~H~ SIMON~~NISil 304~~OOaB~~ ~~. _... 1 EACH NBOOOO(;08i--..1 36 X 38 ".EACfj"'l.oe'- SIMON~~~~B'~"t~NISH 3032 DOUBL~:J!~~E~:~~~~ 1 EACH NB00006084"'! 28 X 38 .. ""EACH "C ,"" SIMONTON "PRO~FINISH 2432 DOUBLE HUNQc,!.". ,(>,,"..-,1 WHITE-lE/ARGONJFULL SCREEN-OPENING stZ{;~:'" LINES .2::3-4 lIiiHGRIli.ES~';' .. ,-:;!',\:.y;'::::~.l\~t.'7' 112004625 1 557.3BO 557.3: 1 1 138.920 138. " 1 1 124.740 124.7, 111**11 SUB-TOTAL 1111*1 2016.34 6% PA SALES TAX 120.~8 111**1 TOTAL *11111 2137.32 H4Y 2 2 RfC'O A SERVICE CHARGE OF 1-1/2% PER MONTH (18% PER YEAR) ON ALL PAST DUE AMOUNTS PAY TERMS: 2% 10TH & 25TH NET 30 DUE DATE: JUNE 25, 1~~7 YOU MAY DEDUCT $40.33 IF PAID ON OR BEFORE JUNE 10. 1"7 A Service Charge of 1"/,% per month (18% per year) on all past d'Je amounts. . IIR"~CIIES . Rc:alJinll. PA 1t.1ll) 1)~~KHnll. (hilI) 1j~()..nHI"H\ Fa' Mcd\illli(,hur~. P^ 11I7) 7')f)-I)HI.. . (7171697.1~~:i Fa,,," SlnlUlJ~hu.". PA (111) 992.-'600. (717) 992..:M'1O'in S\!lin~K"'\ll:. P,\ 17171 _n.I-ll~K^ 0,,11) J7J..n~" E.\ Ft\'lknd.., ~m 111111 fll'.~.:'.1.',~ ol.'"l) 1'11),'\.11).11) Fa,. ,\lInnl1;), PA un.1) 69~.1)211'III1")69'.11'9'7 PM \hllllllllr'o\llk li\liI711M.I,"~ oI11711Mt."PIII',l\ IR".CTS KOHL BUILDING PRODUCTS 860 WESLEY ORIVE ' NECHANICSBURG, PA 17055 REMIT TOI PO BOX 14746 READING, PA 19612 ACCT :MCC020 IHVll: 334900 REF': INV DATE:05-19-97 12:19 SHIP DATE:05-16-97 'WHSE' FRT TERM: S MCCALL HONES INC H BRITTNANY NEADOWS I P RED LION PA 17331-8205 SHIP VIA: KOHL TRUCK MESG:717163t-]327 _~,' PO ':'708 \'Y\..u..,)UoA.. S PAGE: 1 OIS SLMN: 0023 liS SLMN: 0304 NCCALL HONES INC 10 PATWIL PLACE HANOVER PA 17331-8205 ---------------------------------------------------------~----------------'"--------------------- ------------------------------------------------------------------------------------------------ ORDER SHIP UNIT ITEM UON QUANTITY NET PRICE EXT 23 23 SQ TELITEWW TAMKO ELITE WEATHWOOD SQ 23 2.....62, 562.64 RT. 83 EXIT 7 PROSPECT 124 SOUTH. BEAR TO DEVL. ON o ~ . L\i ilo!> !'bs ~:;- ...**~ ...... 7 ... 562.64 - ~r 33.76 - 596."0 .....,.- .. ,-",.,."'51IQ ~"ftrIId '." '-""I'li!CI';ll! _ ~tt:'J!....._..._M~"'-~ ......I__~ ~r:.aJPJH. k1---~~.u"" - N4Y 2 2 RfC1J A SERVICE CHARGE OF 1-1/2' PER MONTH (18~ PER YEAR) ON ALL PAST DUE AMOUNTS PAY TERMS: 2' 10TH & 25TH NET 30 DUE DATE: JUNE 25. 1997 YOU MAY DEDUCT $11.25 IF PAID ON OR BEFORE JUNE 10. 1"7 A Service Charge 01 1-'/,% per month (18% per year) on all past due amounts. .IIM'\!'It:m:s. Itc"'in~. P^ 1"'(1) '1~"'HKnl.I"lnl tJ~^.n"(1f\ Fa, Ml.'(h,IOIl..~t'l\If'\l. P,\ 17111 7Ilf).I~HI'" 17171 h~7.n42K F.l~ Sl"md~hurv. PA 1111) 'W2.$600. (111) 992-)QI'" , ~...hn~ltrml!.I.,' c7171 .\H.lI~lth .17171\7~-~7.1111:,1' rn.'tkrl..k. 'lD 1'111 \ hl.1.1 "~ ol,'UII ft'11.1I",' F,,, ,\lII,null. P,\ 1141..) NJ:'.~277 -Inn",."",,, , \1olllllllr'o'o'tlll/.II,\17171 \M."'''t.7171\hH.,NIIIF,,, IR~o~CTS KOHL BUILDING PRODUCTS, 060 WESLEY DRIVE MECHANICSBURG, PA 17055 REMIT TO: PO BOX 14746 READING. PA 1?612 . "'/1'.-,,..1; .\;1.."." {' .,'" ,',(~,':~l."j:"~:d""~"':";:"cl...\..:""""r~:{L,,,r;,~~ itI 'J".H~1.l"~if:'.. .," ,,' ~ , ,,:. MCCALL HOMES INC 10 PATWIL PLACE HANOVER PA 17331-0205 S MCCALL HOMES INC H I P ABERDEEN MO MO 17331-0205 ACCT:MCC020 INVlt: 336355 REFU:MARTUI INV DATE:06-10-?7 13:46 SHIP DATE:06-0?-97 'WHSE' FRT TERM: SHIP VIA: KOHL TRUCK MESG:717/633-7327 PO U: MARTIN/?707 PAGE: 2 OIS SLMN: 0023 ItS SLMN:0301 ---------~-------------------------------------------------------------------------------------- ORDER SHIP UNIT ITEM UDM QUANTITY NET PRICE ------------------------------------------------------------------------------------------------ 1 1 PC PLYJWH PC 1 11.353' PLY-J WHITE I 12'6" 4 4 PRo MA55FG PRo 4 24.930 15X55 LOUV SHUT GREEN 4 4 PRo MA64FG PRo 4 29.120 15X64 LOUV SHUT GREEN 1 1 30.030 mb:.;h__'''io~~..r.t....it<'''-'~I(;,-~..JI.-~T.t!'T1 2 2 '"'" ,'5Ur - ~~ .I .---- ..~. BDL RGSRdocr::~'::":~': ,,:-'~~OE~~~ RDUND 'Glle:AT"SHAPES GOO .;r-" r.~,,,,,",,l,.,n:'~,':l 113 sa 'PEn':'BUNDLE . ',~:":::~m~I:.\1'h.'.ll '';;l,;.'''l~;i' .....n,... -;;;';:'"~'r-3a..;:_':~r~ ;\t"':-:~...:.:.:-'__'!.J ,.\'.. '.lt~"\,,.;,:~ 'i1 ~..t"~'l~..l:!~~.ri.';."t~~:..,~~t:~&m.~~~~ 2 9S.02E. 196.0~, " ****** DIRECTIONS ATTACHED ****** *1*1*11 SUB-TOTAL '1*.1. 3051.37 6~. l'i\ SAI.ES Tf~X 1113. lJ. 1111.. TOTAL Ill'" 3:134 . 90 ~UN l ~ I;[C~ " R.:adinll. PA 161m 1)16-KHOI) -(611)) l):!M1KI.... Fa.' S!:lin'\lIrn\'lr. PI' (711) .\7...l)~~h "(717) .l7".~1:!1) F:n A SERVICE CHARGE llF 1-1/2% PER MONTH (10% PER YEAR) ON ALL 'PAST DUE AMOUNTS PAY TERMS: 2% 10TH & 25TH NET 30 DUE DATE: JULY 10, 1997 YOU MAY DEDUCT $61.04 IF PAID llN OR BEFllRE JUNE 25. 1997 A Service Charge at 1-'/,% per month (1 S% per year) on all past due amounts, . IIRANcm:s . M':l.'hilllil.'\hurv. PA (717) 7IH).IIIU" " 17171 hl)7.IW2M Fax r:n'lknd.. ~1D 1,\111) hll~.~,\l' "I.\HI I fll~:\.IIW' Fax :\llllllcllU''1".lIc:.ll" 17171 "MI.ll\14 ",7171 ,1hl4.,\l)\1l (:.1., Slnlllll,hurr, P/\ 1111) 'l'/2-~600 . (1111 99II.:M1Il """,/, ,\1111""11. PA '''101. ~:\.l)ln - (III..) ,,5-""" "',',;'',j', ,..i\t~!, - KOliL BUILDING PRODUCTS, 060 WESLEY DRIVE REHIT TO = PO IlOX 1.1746 G 1 NCCALL HONES INC 10 PATWIL PLACE HANOVER PA 17331-6205 ACCT:HCC020 INVlI: 336355 REF U :HARTIN INV DATE=06-10-97 13:46 SHIP DATE:06-09-97 'WHSE' FIlT TERH: S HCCALL HOHES INC Ii I P ABERDEEN HD HD 17331-6205 SliIP VIA: KOHL TRUCK HESG=717/633-?327 PO U:HARTIN/?707 PAGE: 1 0/5 SLNN:0023 liS SLHN:0301 ORDER ~----------------------------------------------------------------------------------------------- QUANTITY NET PRICE SHIP UNIT ITEH UON ------------------------------------------------------------------------------------------------ 31 31 SO EOL45832 SO 31 41.77 1294.8~ ENCORE 4.5" O-LAP ICE 14 10 PC. BPWG832 PC. 10 9.326 5/8 WOODGRAIN OS POST ICE 4 4 PC. IC34LP832 PC. 4 7.160 3/4" IS CORNER ICE 7:1 72 2.490 179.2: 24 24 PC. SSAlIP.l:- i:a~;z.::lJV1DDl'l.": :~'t'":::'!!fT!~"'C ~=, '''''''(Ii' qJ 24 2.062 49.51 ALUH 5PQJNCl.,Q(;;: STARTERw -- -~ ~~ 179.6: 20 20 PCS SVG~rWlh.,. _....~~.r*f.;;....%.tU 20 0.901 12" SO_~ ~;4~.t.(: NEW WHITe ~~:'~'.:!:'\':.:i,!:..J::"f'..Tru:l, lJr.!~ 30 30 PCS SVG1~V.HWi{:::.~ ,. -~~ 1.;~.C'$\:~..:\::u,..-.'J 30 0.901 269.4' 12" V~~[r.~l NEW WHITE .,~.,:;..t'::...~...:J -~~:,~~ 'i;H~\'I'~"'-~ 20 20 pcs F 431!- ' . .",'. ,.." """.....'" pes 20 4.449 00.9; STANDARO SOFFIT J NEW WHIre ALCOA CODE F,138 32 3 50 2 4 32 pes FO$HWH pes 32 6.900 220.0 F CHANNEL NEW WHITe 3 RL T$24HWH RL 3 48.110 144.3 ~4" COIL NEW WHITe HATCHES HASTIC WHITE 50 LB GN200 LB SO .sa 2S.8' 2" GAL V ROOFING NAILS 2 LB TN125 LB 2 4.230 8.4 1 1I4IN TRIH NAIL WHT , 4 TU OUADWH TU 4 3.600 U.~(, QUAD CAULK WHITE CONTINUEO. . . . . A Service Charge 01 1-'1,% per month (18% per year) on all past due amounts. RClklln,. Pt\ 1()IOI Q2l').KKIX) -'hUh 1)2MIHllh Fol.\ ~Iin."""l\c. PI\ 17171 .\7.a.f)~Hh 011111 .11.a.."7~1) f,l\ ~I",ud,hu'll, PA (717) m..lMO. (7\1) tn.... ' ,\llutlna. P/\ tltl") 695~9271.1'1". "''''''.'lIt: ;'J~ ",'I::j.W- ACCT:NCC020 INVlI: 337407 IlEFlI:NARTIN INV DATE:06-12-97 15:22 SHIP DATE:06-12-97 'WHSE' FRT TEllN: S NCCALL HONES INC 336355 H I P ABERDEEN NO NO 17331-0205 SHIP VIA: KOliL TRUCK NESG:717/633-7327 PO _:NARTIN/9701 PAGE: 1 OIS SLMN:0023 IIS SLMN:0301 NCCALL HOMES INC 10 PIHWIL PLACE HANOVER PA 17331-0205 -_.~----------------------------------------------------.---------------------------------------- ORDER SHIP UNIT ITEM UON QUANTITY NET PRICE EXT -----------------------------------------------------------.------------.-------.-----------...-- 4 4 PC. BPWG032 5/0 WOODGRAIN OS POST ICE PC. 4 9.327 37.31 "'**** SUB-TOTAL *"'" 37.31 6% PA SALES TAX '''*** TOTAL nnn 2.24 39.55 --I - " it. , !:III - ,. " .~ .. ..... . .. "'1.__ _.a&l.......",.1 -_..._~... ~- -tl't:l' -:l'!II - """"\]' A ~ERVICE CH,\RGE OF 1-1/2% PEll MONTli (10:' PER YEAR) ON f\LL PAST DUE AMOUNTS PAY TERMS: 2:, 10TH t, 2STH NET 30 DUE DATE: JUL'{ 10. 1997 'IOU NAY OEOUCT L75 IF I'fHO ON Oil lJEFORE JUNE 25. 1')?;' A Service Charge of 1.'i,% per month (18% per year) on all past due amounts, . 1I1l,\Non:s . ~1~'\;h"lIl~'hur'll. f',\ 1117) 7')().l)H l-t. 1717) b'>1.f).l2K Fa.\ b\'.bmd. ~m 1,\IIIII\IJ~..~,\.l~ '1.\lIllhl)".II~N FJ.' S'm",hburJ, PA \711) 99J.~ .1117) ~"""i All"",,, P,\ IMI4)M'.9Jn.tRI~)..,.,.,.",. "", ':' ~,' i Mrll&Jin.. PA (AIO) l)2"'MKI.I.lhlllll.2h-llKI~ F", Sthn\li1nlYt',IJ^ 11171 .\7.a.lIlKh -11111 J7...n~I' I'.l~ KftHL BUILDlHii PBODUCTS KOHL BOI~DING PRPDUCT~ 860 WESLEY DRIYE ~CHANICSBURG PA 170SS REHIT TO I PO BOll U7..6 READING PA 1'612 t1CCALL HOHES INC 10 PATWIL PLACE HANOVER PA 17331-820S S t1CCALL HOliES INC H DELIVER TO THE SHOP!!! I 10 PATWIL PLACE P HANOVER PA 17331-820S ('fl,.v...",- ;.. ( .r PAGE I 1 0/5 SLHNlOO23 115 SLHNI030S ACCTI"CC020 111\I'1338303 REF'I INV DATEI06-23-'7 1..:37 SHIP DATEI06-20-'7 'WHSE' FRT TERHI SHIP VIAl "ESG:717/633-7327 PO '1.'708-HUNDICE -------------------------------------------~---------------------------------------------------- OIlOER SHIP UNIT ITEH SIZE UOH QUANTITY PRICE EXT -----------------------------------------------------------------------------------------~------ 1 1 EACH N8ooo07222 3S 112 X 37 112 EACH SIMONTON PROFINISH 3032 TOP SASH ONLY WHITE-LE/ARGON-GRIDS .2035063 1 60.7S0 60.7S , I 611 PA SALES TAX 60.75 3.65 "'."0 ....... SUB-TOTAL ...... ---- - - ." . - - .....- - <#..~ ""'It..!::. II. - . . ..... _I - ~~ - - - JUN 2 J ;,~Q A SERVICE CHARGE OF 1-112' PER t10NTH (1811 PER YEAR) ON ALL PAST DUE AMOUNTS PAY TERMS: 2' 10TH. 2STH NET 30 DUE DATE: JULY 25, 1"7 YOU MAY DlDUCT $1.22 IF PAID ON OR 8EFORE JUlY 10, 1"7 A Service Charge 01 1-'/,',/. per month (18% per year) on all past due amounts, . IIRANcm:s . M~iIl.lin" PA 161f)) t>>2h.HKfXl ',I'l!lll t'!MIHllf\ F;I\ M~'~'h,lIm\l\l.Irll, PA 1117111141.'1141'" 1717) hl}1.(~2K F:I~ SIMUII\burv. PA e117) iW1,~'(11')mIU2D" !Wh'h~""t. rt\ 1717\ n,l,lI~Mh .171'1\"I.~nl' FH r:",II~.t1l,:k. .\11>/,\1)11 M.~.,""l~ 0 r11l11 tlll.".IIW' F;u ,\111"1""". Pt\ ,KI..)CW!.I)277 .UII"lNJ'.7797 PM ~IPllllI r'\~11I\' 1,\ 17171 1f\K.I_I,'4 0,7 111M.N.\1I rn IR~.[JS KOHL BUILDING PRODUCTS 860 WESLEY DRIVE ' ~CHANICSBURG. PA 17055 DIG REHIT TO: PO BOX U746 READING PA 1'612 " ~ ",rl . I'. " ',' i 'd'ff~ HCCAU. HotIES INC 10 PATIIIL PLACE HANOVER PA 17331-8205 ACCT I/ICC020 00.= 337724 REF' cLOT 6 INV DA1E:06-23-'7 14:37 SHIP DATE:06-1'-'7 'IIHSE' FRT TERH: S HCCALL HotIES INC H BRITTANY HEADOWS I LOT 6 I P RED LION PA 17331-8205 SHIP VIA: kOHL TRUCk HESG:717/633-7327 PO ':'708 PAGE: 1 O/S SLHN:0023 lIS SLHNc0304 ORDER SHIP UNIT ITEM UOM QUANTITY NET PRICE EXT ___________________________________________________________.__________________________________M. 22 22 SO EOI. 4 5807 SO 22 42.37. '32.U ENCOflE 4.5" D-LAP CLAY 8 8 PC. BPlIG807 PC. 8 10.082 80.66 5/8 1I00OGRAIH OS POST CLAY 28 28 PC. J5UN807 PC. 28 2.671 75.37 112" J CHNl. CLAY 12 12 '.712 116.55 20 20 PCS SV~_r __;...,1>...-- __. _ P,CS - 20 8.'81 12" NEIiI WHIT,&. &; . ... C":'" 'll: - 26 26 PC. SSAV. ' 26 2.062 ALUM S D.~~ STARTER ~~"^.~1IWI!lIIlI ~~~"I!~rtW--.-.......a.I11 26 26 PCS F8StiW~.:t ."".'PCS'~.-a<;,):J 26 6.'00 F CHANNEi~V~NHITE ...,~'t"4.:1.1:~.':'r.":'I"J ~~~'!IIIlJJ;~~ ..:71.. ~lC::lD2.'Ji3 6 6 PeS F 438Slilir ~--".'~~Csm-"" 6 4.450 STANOARD ~OFFIT J NEW lIlHITE ALCOA CODE F 438 17 17 PC. UTUN807 UNIVERSAL UTILITY CLAY PC. 17 2.96' 3 3 RL TS24HlIlH 24" COIL NE~ IiIHITE ~TCHES HASTIC lIHITE RL 3 48.110 20 20 LB GN200 2" GAlV ROOFING NAILS LB 20 .688 2 2 TU OUADlIH QUAD CAUlk lIHITE TU 2 3.600 2 2 PR. HA3'FG 15X3' lOUV SHUT GREEN PRo 2 1'.550 CONTINUED. ... . JUN 2 5 REC11 A Service Charge 01 1.'1,% per month (18% per year) on all past due amounts. . IJR,\Ncm:s . M~a&Jinll. PA IflIO)I)260-KKOl) -11'1111) ..2h.flKI:f! Fa, Me,hanll.:~hll'll. P,\ (717) 190.tJHI.J. 1717) M7.(l42K F:I~ Slr'Ouil~ht.lrv, PA (111) 992.!6OQ. (711)992-)410'" Sl:1i1l~1Z0\\~. PA (711) n"",mMfl-1117) ~"".~nl) Fa' Fn.-lIcm:k,,\1I) l.l1111 tl~.1..'\.1.1~ - 1.101) fl'~~. If)'N Fil' 1\lInnn.., PA 1141-4) M:'I.9277 I (RI") "'..1m,.. \lllIlIlIU"\lllc, 1)1\ 1717. ,lfll4.,l.\.\14 -1711. ''''H.1I).1lJ h" B MCCALL HOMES INC S I H L 10 PATWIL PLACE I L HANOVER PA 17331-8205 P ACCTI MCC020 INV OATEIOb-30-97 SHIP VIAl PAGEl 1 INV.h SCOb97 SHIP DATEIOb-30-97 MESBILATE CHARGE PO III SLMNI 23 ----------..------------------------------------------------------------------------- LATE CHARGE FOR MONTH ENDING JUNE, 1997 .452.68 BASED ON A PAST DUE BALANCE OF $30178.78 .. - ., . ~... _m __.. ~ ~-- --r _ ...A.r._~_ '"a trO~ ~ ~. ,1"4 - JUL 0 2 RfC'a ,.. I. Readln.. 'A ,6101 92(>111IOO . 161019211<l8Oll Fa 5<lIn,.,.,.., 'A(717) 37~.()2M '17171 37.5729 Fa . BRANCHfS . MechrnlClbwJ. 'A (717) 79C).981~' ,717) ll97-G421 F.. Frederick, MD 13O\l695.m5 ',30\l695-10019 F.. 101,"".......11I., 'A 17171361.lJlI '1717) 361.3930 F.. , 511OUd1lloq.'A (7171 99Z.SfOO. C1Il1 tn..... AI_'A 1I1~1 /1195-9777 '11141_""" MCCALL HOMES INC 10 PATWIL PLACE HANOVER PA 17331-8205 INV DATE:07-01-97 14:35 SHIP DATE:06-27-97 'WHSE' FRT TERN: S NCCALL HONES INC H PINE TREE RD. I P HANOVER PA 17331-8205 SHIP VIA: KOHL rRUCK NE5G:717/633-7327 PO .: PAGE: Z OIS SLNN:00Z3 liS 5LNN:0306 -------------------------~--------------------------------------------------------------------- ORDER SHIP UNIT ITEN UON QUANTITY NET PRICE EXT ----------------------------------------------------------------------------------------------- 10 4 10 PC SCT800 PC SOFFIT COVE TRIH WHITE 4 TU QUAD007 TU QUAD '301 IWOLV CLAY I ALCOA PEB. CLAY 2 TU. GECL TU. G E SILICONE CLEAR GE012 35-YEAR 10 5.411 54.11 4 3.600 14.40 2 Z 3.500 7.16 FRO 4-5 MILE pq.....,.- R~'bt'n'!II4C~M... TlL. GO 4/IA..i1,tl.&_tO PINE TI15 T IR GO 1/10 NI'~ In ctoNE DRIVE ;/R, TO Joe lr 1 1 - ....... SUB~i~i~~~~f..*. 6" PA~d~ ...... T~~"" ..=...-.- :'Ui ~iilI"""~".b..''''U Z512.07 150.77 '~_., ._~ '.to. ~"Wl'~~:,! ~-~ -:...~~..::1r~.. -..-.. ~"'4 2663.64 JUL 0 7 IE'D \ SERVICE CHARGE OF 1-1/2" PER HONTH (10" PER YEAR) ON ALL PAST DUE AHOUNTS )AY TERMS: 2" 10TH & Z5TH NET 30 DUE DATE: AUGUST 10, 1997 fOU HAY DEDUCT $50.Z6 IF PAID ON OR BEFORE JULY Z5, 1997 And.." 'A/MO) 92l\.RIlOO' /610) 921\.OlIlloI Fu Sellll......., PA '717) J74~12Rb "717) J74.5729 FU . BRANCHES . Medioni"""', PA'711l79fl.9RI4' (717) 697-0428 Fu Frrdnkk, !olD 1l011695.5JJ5 . (301) Nl5.I 049Fu M..."..".ill., PA '711l1^ll.JJJR' (717) 16ll.19JO Pu SD'OUdabutr.'A (717) 99%-5eoG' (717) vn.JQI.... AI_ 'A 18141 695.9171. 1114''''''''' .... IR'o~CTS KOHL BUILDIWG PRQPUCrS 860 WESLEY DRIVE HECHANICSBURG, PA 17055 ''''''~':'''''''<<4'''IIr1l'l!'IIlJlM'C'TD~~L'D liTe, TJ!IS" ~ ['I" '" ..oUI......~iU:~~j.j;';..__.nd': ,~...rj ~_..>>I.J._,y REHIT TOl . PO BOX H746 READING, PA 19612 . _~l,.t ~'. ,', ......~ ~4 " ~'i,:,~i"'t;,..!;:r.d..,' ;;,l,/"tll.l":J~J.i.1 J'~" U.'~8 HCCALL HOHES INC 10 PATWIL PLACE HANOVER PA 17331-B205 S H I P ACCTI HCC020 TRAN: 343668 HESG:717/633-7327 INV DATEI 08-18-97 SHIP DATE: 08-18-97 REF I: ST :02 .sN..ods PAGE: 323191 SLHN: PO 1:94 BRANCH CIRCLE- --------------------------------------------------------------------------~--------------------- QTV INV UNT ITEH SIZE UOH TOTAL UNITS PRICE EXTENDED ------------------------------------------------------------------------------------------------ 4.00- 341818 PCS 4.000- 15.013 60.05- 6.253 12. 51- 6.939 97.15- 3.126 21.88- 11. 50- 203.09- RV820800 PCS 1"X5"X20' POST WHITE RVBPQR2800 PCS 20' POST QRTR RND WHITE 14.00- 341818 PC. RV8PL800 PC. 14.000- 1" X 5" BOX WHITE 7.00- 341818 PC. . .~~~~R8~gtm<<~D~~;;~v.~.~~0- . ~1". " ..'~ll~\'(.I(.".'_:_l,. "..,.....,. ...'h,.... ' . U:.'l'lof" . .' "I.'~'r.l11" .:....,..... ..~.~I:..:..:.:t.I.~'W&to..'j.:..:;.;aA'.~.....,. , - 'j" ..:M:..:';"';'-I"'.u..:",~.' ...t...._::~I.}.J~'j,~~ ,,<.......""'4lr.l PA" SALES "TAX '""'TO'. ','. ~""'I:t.J\"-n~ .~~ Ji.' .~......._..,_.........~.,.. Iiq_'_ ~.. 2.00- 341818 PCS 2.000- ...~ "'.1'" TOT A, l 'J.<:r4l'\~if ~~-;,.a'":ri.' .l!'JIl..... _ III "~!ltIo'II:3i."1I _",;.~';:.,:.a,~A:l::J '.on',.;; 'ot.l~i':;\"-1 '\ .l_~i. .~:!r:"" :'IJU.:.!:_:~',:1':"l '~'7~'.r 1;'" !.--:-' " I ~. ~.:..,."-llt.'.~:'.,.~,..~~,. :t.",':l':"~: ,'., ...1 .1..,'~>Hi:;=...:i.i-60-..~ J :.tc.."Z~::.~;:.1 '.~" :.~~.. t~',!~~,' .::..='li~'t,r..:;;.~r..,.Ji::t~.r.s!..1'1:!f:::N:~J AUG 2 '> ... 1S91, Reo,kllnll. PA 11\1111 1~~h."KI.) otlhllltl)1tHIMI)f) Fa" .'\lIlIn'II"'''''', f'A 1717) \7".111Mh 1.117t.l7.1."ntl b\ A Service Charge 01 1.'1.% per month (18% per year) on all past due amounts. . IIM,\/I/Cm:s. ~h...hllnll;,hurlZ.I'i\ 11171 71)().I)MI~' (711) hi)? IIoWt LL\ Fn'tl.:mk. MIl..lIJI) ,\I)~..nl." "' ~1111 hl)....II).l1j r.l\ \I.1I1rtlU"''''IIl~'.I',\ .7171 "\~.l' 11( I 17171 ~M. 11110 b, SlmUlbhmAl. P^ (711) 1J9~o~fl(Il) "17171IN~oq~1l to;!, 1\llnllnJ. )'/\ 1M I") tW~.1)277 I 1M 1.11 t\I.~. 77111 F.l\ application to induce Plaintiff to ~ell building materials to McCall Homee, Inc. on an open account. A copy of the credit appUcation is attached hereto as Exhibit A and is incorporated herein by reference in the crsdit application. 3. Defendants John McCall and Jeffrey Stalter guaranteed payment of the account in the event of default in payment by McCall Homes, Inc. 4. The instrument attached hereto marked Exhibit A allows for the confession of judgment against the Defendants in ths event of default in payment of the account by McCall Homes, Inc. 5. McCall Homes, Inc. purchased materials from Plaintiff in the total amount of $27,738.69 on open account for which Plaintiff has not been paid. Pursuant to the credit application, Plaintj,ff is entitled to interest in the amount of $1154.43 through July 1997, and attornsy'e fees of $5548.00. 6. Defendants John McCall and Jeffrey Stalter have not paid the amount due, despite demand for payment. Therefore, an event of default exists and Plaintiff is entitled to confession of judgment. 7. Judgment has not been entered on the instrument in any other jurisdiction. 8. An itemized computation of the account is attached hereto as Exhibit B and is incorporated herein by reference. 9. The instrument is not more than 20 years old. 10. Plaintiff hereby demands judgment against Defendants John McCall and Jeffrey Stalter, jointly and severally, for th. principal amount of $27,738.69, interest in the amount of $1154.43 and attorney's fees in the amount of $5548.00. VERIFICATION I, J. Thomas Kearse, President, Kohl Roofing & aiding Co. d/b/a Kohl Building Products, verify that the statements contained [ in the foregoing complaint are true and correct. I understand that , false statements herein are made subject to the penalties of 18 Pa. C.a.A. Section 4904 relating to unsworn falsification to authorities. KOHL ROOFING & SIDING CO. d/b/a KOHL BUILDING PRODUCTS I I I I I I I I I r',L./ /' ~. f . homalJ" Kearse President " " " , ); ," , , ' I I " k.I,..v.r Il.,'.r.) [ll@[]:{][1 BUILDING PRODUCTS BUSINESS CREDIT APPLICATION ( CORPORATE OFFICE Old Bomylllo Road PO Box 14746 Roadlng, PA 19612-4746 610.926.8800 610.926.0806 (FAX) Instructions: I, Fill out lOp plll1 of from 2, Sign appropriate secllons, including back of form 3. Provide flnll/lclal slllloment Date of application: ,- - .P ~ ") 7 Legal Name of Business: \f\c ~ C\. \ \ \"\C\ me s T\"\c., Address: \(\ 0(\,-~\\ ~\(lCI.' 'A(\"'C1\J(,'~ 0't\ n~..,,\ Business Phone: ('1 \'1 ) \ t?,~,.rP,:~'1 Fax #: (11'/ H, ?,'J.,.q.:.l~I.:;) (Corporatioil) Name and Address of Bonding Co,: ,~I1:".'1 - .011..'7"": J,,, ~ r,'" ;t:;. r", ',,"~$ Nature of Business: Ai <1<,) IA.... '" CQ~ ,,+-...,rh-,',J Date Started: Credit Limit ~ EXHIBIT I~ Sole Prop Partnership ~:; 19\- Principals: Full Name Home Address & Phone # I.) ~Y"I"~CC'C\\\ 3"",<> W;.j.",t"...,. Cer \/..,'~ I 2.) R,c\--.cI\rl cyl",e\""", \~C"':'Jtl'\IJ.J,,\~rlY:'j,,\.. \l,ce' Prl'<,rl".,t 3,) ~\\\I' ~ S\'" '\H '-II':'" l C\h. <"",\ [r"l.rtCt ['1,';,- -..,~y I ~:x,(' rdr,rl,!':"Ir(:r,c/ ,('(-'( 1<1'\ -l\~'ll~?> BUSINESS REFERENCES: Name Address, Phone #, Fax # Account # Supplier \'(y.('(\(6.:ci'\1i' (r-e (,\C'~ \\..C(\,{,E\ P0 rn)(. Lj .11\vnY'.c,l,)dl~ h\'ll ;:)::J'i' I {',Ir&', Supplier ~ \ \\l"f\~ (~h('(\('h("(l~ .",\l~--:\I,,,,;\,p('c,r \\(',\'\C,I,)~\ (:'II-i\ltQ'l- ,::,cll'-j Supplier {:\~ c: \H't":\C Y \"'lq R" '-9P (2.,(\ \1'\, \ \HS ('\\ I) ..:), 10'7 (<11(0.:1.>'7<'/' L/ct , q Position Social Security # /.?/ - 'fr. r->:2. I \h "1\(l\, (\1- Supplier Bank (Checking) ~C\.'" ('Y \-\\0(,\"'\ (.\?'r>,~\~ \,:)\n~'1 d'") (1(, ,\ ,sk. St, t\C\('C"l'>l'r 01 ",;:;l () I;:;! GUARANTY ~'1\1) 11,.,'/- '1SCJ.~) OUARANTY liven by the undcn cd to Kohl BulldlnJ Products, hc:rclnl1.t\cr referred 10 15 the Company, In order to Induce It to extend credit to, the (ollowlnl X ~u'ln... ontily: I . V t/WE hon:by un,ondltlonlllly PERSDNALL Y GUARANTY to the Company' tho prompt poymen4 when due, of emy elolm of the Company whloh may hon:afttr ^ arl.o ..owt ^' c C'A' l ....~,. c ,~ ,.. M- UWE do 01.0 uneondillonolly PERSONALLY GUARANTY poyment of oil ,...onoble co.... of collection Ineludlnl but notllmilod to, twenty pc,cent (20%) anomey's fcel and coun costs. This Is 8 ~onllnulna GUARANTY and shl11l remain In l'ull Coree until revoked by GUllTantor by ntHh:c In writing (0 the Company. Such rcvocallon shaJl be effective ani)' u to claims of the Company which arise Out ot transactions entered Into after the Company's receIpt ot saId noUce. This obll,ltlon shall cover the rencwllls of an)' cl4!ms luarantecd by this Instrun'cnt or utensions of time payment hereof, Ind shllll nOI be atf'ct:ted by In)' surrender Or rclellS' by die Company of an)' othet lecurhy held by I((or In)' clolm hereb)' ,Ulllllllel1d, This GUARANTY Is, an4 shllll remllln binliing upon the heln, estate rcprc:sentallves,lucceuol'l and assllnlorOulU'lUllOr. This OUARANTY Is Independent o( an)' other lultlnty or rights which The undersigned may have with respect 10 the aboye-noled debt. Thll OUlIlI1tOrs hercb)' wain Ihclr homelte.d exemption u well u all requirements or rlahu with re8""d to notice, demand presentation or prot.,t In the lvene or d.foul4 .lId ~""er _lnllloHph T. Kline, u .nomoy-In-f..! ror Ihc PUrpol. of eonf...lnl Judl,men4 In f.yor of Kohl Bulldln, Producll, ror VIl\OlNlA cuSlom." In the CirculI Coon orFoIrl'u County, Vlr,lnll, ror MARYLAND ,USlomen In the Circuit Court ror Frodorlck County,MlltJllllld,lbr PI!NNSYLVAMA cUllOmo" In tho Circuit Court orCumbcrtand County, P.nnlylyonll, for WEST VIRGINIA cuSlomen In tho CirculI Court ofB.rkl.y County, Will VIfIlIlI. tbr XNEW YORK cu m. In tho C~eull CourtofO,anle County, N.w York, and for NEW IERSEY ...tom.", In the Circuit Court of Wllnn County, N.wl."." lbr the balance, . dament teres an attorney's (ecs, and funher consonts to Immedlare execution or laid judgement. Signature ~...' 'T Date "'] .- / -:; 7 SllnOlU f.9tr' OliO ,l- -)" "'7'? Date TER....S AND CONDITIONS OF SALE ( I, Th... Illlllll ..d eondlllono or 101. Ihlll control on 011.11.., Ineludln. III dlltellhlpm.nlloln "'....d by 0' lllrouall Kuhl Bulldln. Producu, "h.ther or nol IIlIlIrill. on dollvlltd by 0' ""ouall Kuhl Bulldln. Produeu, 2, All orden pl...d Ib, .pcelll o,der m.teriol. (Ie, IIIulI mOlI/I.b nol k'911n .toek), on nnal, ..d ..quln .50'" depo.11 .1 11m. or order, willi III. ballll.. due upon wrivaI 01 Kohl Dulldln. Produ,u, On.., ,pce'oI o,dor II pl,nd ..d 'onnnnld In "rilln. by Kohl Bulldln. Produeu, pUl<huer ...... 10 ..e.pl IIld mllerill. ..d mlkl p.ym.nu In lull, RETURNS SHALL NOT DE PERMI1TED ON SPECIAl. ORDER MATERIALS J. On ,U ord.f1 placid (or Ilock, out of 'le'" and Ipccllll ord., mlltriaJ., whlrt the dtllwcry datil. d.ll)'td due to manufKNrtr shipp In. error, or an)' other Irror, purch...'...... to huld Kohl Bulldln. Produeu hllllllllll ro,..y d.l.y ..d ...... to mlk. p.ym.nu In rull ror IIld '00011, 4, All m.terill. d.llvered mWI b. ulII11ln.d ..d lnap"ted by III. purchuer ..,dlor hi. I.enl or ..prlllnlAllvl upqn It''lpt Fo, 011 mIll/Ill. ...mln.d IIId Inspecced. upon f'Icllpl.lI1)' claim ofshor'Ulc III11110r dun... mUll be mid. II time ofd.llvcry, Wher. purchaser andlor his 02.lcnt or rcprtlCnlllivc cannot IXemln. ..d Inlpc'l m.terill upqn Itcelp~ lilY ..d 011 cl,'m. mwl be m.d. wllllln lIut. (ll "orkin. d.y. or d.llvcry, Any clolma mIdI 11I\1/ III. prelCribed II... period .hll not be honond, 5, Stock mllerial. m.y be ItlUrn.d, Ir In .ood condlllon, willi purchue~. ",counl cndlted ,ubJectto . 15% hlll1dlln. rcc, 6, Pur,hucr "ilnowl.d... III.IIIIIY II1d .11 d.d,lon. .. 10 ItlUrn ur mlleriol,11 m.de AT TIlE SOLE DISCRETION OF Kohl Bulldln. Producu, AND MAYBE CHANDED OR REVOKED AT ANY TIME WITHOUT NOTICE, 7, Kohl Dulldln. Producu ...... only to "pi"". II1Y II1d 011 mllcrlol.hlppcd Illdlo, received In def"llve condlllon, ., PUI<hucr 'IItCl III" hi. SOLE REMEDY .v.lI.bl. rur lilY def.ulllrilln,OUIOr III.. IIIIdlo, "" or lilY IIIId III mlterioll purch..ed Ihall bl IIIe ItlUrn ohald material. purchased (or I full nfund. PurchlLStr Icknowlcdau thAl no suit will be brou&htl.a.JnSl. or IhaJllnch.lde, Kohl Bulldhll ProduclJ where either conHquenllaJ or Incidental dlmalelll'Y souaht 9, Any c1llm 0' conlrov,,,y Ihlll be 1I"I.d .111I." by blndln. 1Ib1"'llon, or by illY Court or eompcllntJurlldlcllon FOR VIRGINIA CUSTOMERS, IN COMMONWEALTH OF VIRGINIA, FAIRFAX COUNTY; FOR MARYLAND CUSTOMERS, IN THE STATE Of MARYLAND, FIlEDERlCK coumv: FOR PENNSYLVANIA CUSTOMERS, IN THE COMMONWEALTH OF PENNSYL V ANlA, CUMBERLAND COUNTY; FOR NEW IERSEY CUSTOM ERS, IN THE STATE OF NEW IERSEY, W ARJlEN COUNTY: AND FOR NEW YORK CUSTOMERS, IN TIlE STATE OF NEW YORK, ORANGE coumv, On 011 disputed m.ttm Sellm "'''' '0 PlY KOHL BlllLDING PRODUCTS' .nom.ys rm, COIlS and dl.bun.m.nu, 10, On aJl matters referred by Kohl Bulldlnl Producu to their Qnorna~1 for collection, plIrchlUer Dafen to pay 20',{. or the (otAl sllle prlc;c or the .ctulll &moum billed, whichever Is Iruter, for anomeys' fcc, plus c;oaLl and dlabursemenlJ, II, PURCHASER AGREES THAT Kohl Bulldlnl Producu SHALL NOT BE IlfSPONSlDlE FOR ANY MANUFACTURER OR SHIPPING DEFECT, Purchucr lunhcr .."" to hold Kohl Bulldlnl ProduclS huml... ror any monufoclU"r or Ihlpplnl der"ll\l1d ror IIIIY Injury 10 pmon or 011I....1,. due 10 IIld der"u. 12, Kohl Bulldln. Producu mole.. NO WARRANTlES up"" 0' Implied, Includlnl wlthoulllmllllllon, WARRANTIES AS TO MERCHANTABiliTY, OR AS TO FITNESS FOR A PARTICULAR USE OR PURPOSE, IIId .. luch .hlll nol b. IIlbl. for IIIIY 10.. 0' dlll11lle dlreclly 0' Indl'''lly 1I111n. from III. u.lor Iw:h mllerial,. Funhcr, III MATERIALS ARE DELIVERED "AS IS" AND 'WITH ALL FAULTS', Any conllUdl"ory ''''temenlS m.d. by on employel or Kohl Bulldln. Ploducu, .hAlI h.v. no .rr"l or b'IIlnl, ond III. temu conlllln h...ln ,holl COnlrol. 13. TITI.E FOR All GOODS ANDIOR MATERIALS IlEMAINS WITH Kohl Dulldlnl Products UN11L PAID FOR IN ALL BY PURCHASER, Should purchllSer l4ke action under Title 11 oflhe Uniled StItes Code, or bkc III1Y other action to avoid mllkln. payment In tun, purchllJer Glrees to promptly retum any mltertllls not paid In t'ull, Purchuer larees (0 keep the materllls fully Insured unlll paid for In full. 14. The RJSK OF LOSS of an~ loads and/or mllterillls sholl pll5S to the pwcha.scr 4S soon 115 laid loads .:mdlor mo(crllls ore dell...cred to purchaser lit lu place or btJJlnu6 "r CoR}' olhcr plol':C spcclnco1ll)' dcsl,nlU':~ bi' the pun:hl.:icr ror t.,",c Jclh:c:-) 15. Purchaser aarees lhllt lU\y account thirty (30) days pllSt due shill! be chlU'aed I ,'~~ per monlh [nlcrcst on lhc unpaid bBlllnce, IS';, pcr III'\num, 16. In the ..vent the purchuer Is a corporatIon, p4l1nenhlp, any other 10calleaaJ entity, the Ii,dl...ldulll or Indi...lduol whose sianature appears hereon Ilree to and do pcnonaJly IUlrlU\(CC payment for any and all materials sold to the IIbove.nlUned entity, Purch"cr Icilnowledlcs 11I.1 h. h.. ..lid IIl1d AGIlEES TO ALL OF ABOVE TERMS AND CONDITIONS OF SALE, XSlln.lUn p "A.5-M7 NlII11.(p,lnl) J"l. Alc C~ I L Till. ...LY.u-;;Q... + SI,,"lU" Nlme (Prlnl) _ Till. _.~-- C. Are the guaranty and warrant to conless judgment valid" Suggested Answer: No, 0, Were legal lees included in the judgment reasonable? Suggested Answer: No, E. 16 venue proper in Cumberland County? Suggested Answer: No, II. STATEMENT OF FACTS. On May 8, 1997, Petitioner Jelfrey A Stalter signed a "Business Credit Application" (hereinafter the "Application"), The Application was prepared by Plaintill'Kohl Roofing & Siding Co, (hereinafter "Kohl"), Kohl alleges that the Application contains a personal guaranty which imposes liability on Petitioner and a warrant of attorney allowing Kohl to conless judgment against Petitioner. On May 8, 1997, and for some time belore that Kohl was involved in the business of selling building materials to a Pennsylvania business corporation named McCall Homes, lnc, (hereinafter "McCall Homes"), Kohl shipped products to McCall Homes lor which Kohl was not paid Kohl has alleged that the invoices not paid by McCall Homes total $27,738,69, Petitioner has been unable to determine whether or not that amount is correct Invoices from Kohl which were not paid by McCall Homes and which were lor materials shipped on or after May 8, 1997 (the date of the Application), total $13,051.40 lor materials, In addition, those post-guaranty invoices include $1,202,67 of"lale charges" lor a total of $14,254,07, Please note, the bulk of those "late charges" are charges lor unpaid invoices which - 2- predate the guaranty signed by Petitioner, True and correct copies of the post-guaranty invoices are allached to Petitioner's Petition to Strike or Open Judgment as Exhibit "A". On October 15, 1997, Kohl conle~sed Judgment against Petitioner and Mr, John McCall (hereinafter "Mr McCall"), personally, That Judgment was in the amount 01'$34,441,12 which included the "principal" allegedly due of $27,738,69, interest 01'$1,15443 and allomey'slees of $5,548,00 (hereinafter the "Judgment"). III. Argument, A. The confessed judgment indudes items not authOI'ized in the warrant of attorney alld should be stricken. Confessions of Judgment are not favored in Pennsylvania, Accordingly, "[i]t is fundamental that a warrant of allorney to conless judgment must be strictly construed and that the warranlmust be exercised in strict accordance with its terms," Kline v Marianne Germantown Clm1., 438 Pa, 41, 45, 263 A,2d 362 (1970). The terms of the purponed personal guaranty included in the Application were, in peninent pan as follows: "lIWE do also unconditionally PERSONALL Y GUARANTY to the Company [KohlI the prompt payment, when due, of every claim oCthe Company which may hereafter ari.~e against McCall Homes, Inc," ~, Application, Page I, According to its own terms, the purponed personal guaranty, upon which Judgment was confessed, is limited to claims of Kohl which arose aileI' the dale of the Application The date of the Application was May 8, 1997, The unpaid invoices trom Kohl for materials shipped on and after May 8, 1997, are allached to Petitioner's Petition as Exhibit "A", and total $14,254,07, which includes $1,202,67 of "late charges", Kohl, however, conlessed Judgment against - 3 - Petitioner lor $27,73869 of "principal". That "principal" clearly is lor items which predate the May 8, 1997, purported guaranty ofPctitioner, Therefore, Kohl has conlcssed judgments lor items not guaranteed by Petitioner and not subject to the alleged warrant of attorney to confess judgment contained in the Application, In addition to the principal of $27,738.69, Kohl contcssed judgment against Petitioner lor attorney's lees 01'$5,548,00, Those attorney's lees were calculated as twenty percent (20%) of the $27,738,69 "principal", Therelore, Kohl conlcssed judgment against Petitioner lor attorney's tees which would have been due, ifat all, only for invoices which predate the date of the Application, May 8, 1997, Again, Kohl has confessed judgmelll against Petitioner lor items that are not authorized by the warrant of attorney, It is well settled law in Pennsylvania that "if the conics sed judgment includes an item not authorized in the warrant, the judgment is void in its entirety and rnust be stricken," Klliw at 46. Accordingly, the Judgment is defective and should be stricken B. The warrllnt for confession of judgment is not vlllid. In order for a warrant for the contession of judgment to be valid, "the law jealously insists on proof that this helplessness and impoverishment was voluntarily accepted and consciously assumed [by the debtor]". Cutler CorP v Latshaw, 374 Pa. 1,4,97 A2d 234 (1953), In addition the Pennsylvania Supreme Court has held that "[a]n authority to confess judgment must be clear and explicit" ld, at 4, In this case, Petitioner was unaware that a warrant to confess judgment was contained in the Application, The purported warrant is contained in the last paragraph of the first page of the Application in a sentence that is 139 words long, The sentence - 4- strike the judgment of Kohl Roonng & Siding Co, as invalid C. Both the gUlIrllnty and WlIrrant to confess judgment are Invalid. Petitioner signed the purported warrant to conless judgment and personal guaranty in his corporate capacity as Secretary and Treasurer of McCall Homes, Petitioner did not sign the Application in his individual capacity, The Superior Court has held that it is reversiblli! error to refuse to strike a confessed judgment when "appdlant did not sign the note containing a warrant ofattomey in his individual capacity," Solebul)' National Bank of New Hope v Cairns and Kratz, 252 Pa, Super. 45, 46,380 A,2d 1273 (1977). Although the facts ofSolebul)' are slightly ditlerent than those in this case, the proposition oflaw holds true and is equally applicable, Petitioner did not sign the Application in bis individual capacity and if Kohl intended him 10 sign in an individual capacity, Kohl should have rejected his signature as an officer of McCall Homes and required him to resign the Application in his individual capacity, Kohl did not do this, but rather accepted the Application as signed by Petitioner in his corporate capacity, "It is well. settled that a written lease or contract which authorizes a party to conless judgment must be clear and explicit and strictly construed," 301ebu()', at 48, Accordingly, strict construction of the Application would not apply it to Petitioner personally, but rather would apply the personal guaranty and warrant lor confession of judgment, if at all, to McCall Homes since only the officers of McCall Homes signed in their corporate capacity, The language drafted by Kohl and included in its Application was too confusing for Petitioner to understand the use to which Kohl would later put that Application, Therefore, confession of judgment should nO! be allowed against Petitioner for the debts which he could not - 6. have reasonably known Kohl would expect him to pay personally and the Judgment should be opened or stricken, D. Plainllff has demanded unreasonable legal fees. The Judgment included allorney's lees 01'$5,548,00, That represents twenty percent (20%) of the principal amount 01'$27,738.69, Aside from sending a single demand leller on August 4, 1997, and preparing the Complaint lor Confession of Judgment, it does not appear that Kohl's allorneys performed any other legal services in connection with the confession of judgment Accordingly, legal lees of $5,548,00 are not reasonable lor the sending of a single page leller and preparation of a Complaint containing ten paragraphs, Even if the personal guaranty and warrant to confess judgment in an Application are valid, Kohl is entitled only to recover reasonable attol'l1ey's lees from Petitioner. The amount ofallorney's lees lor which Judgment was confessed in this case is no, reasonable and, therelore, this Court should open the Judgment E. Venue is not proper in Cumberland County. Kohl confessed judgment against Petitioner in Cumberland County, Pennsylvania, There is absolutely no basis supporting venue in Cumberland County, Petitioner is now and at all times relevant hereto has been a resident of Lancaster County, Pennsylvania, The other Defendant against whom Kohl confessed judgment, John McCall is now and at all times relevant hereto has been a resident of York County, Pennsylvania, The Application was signed in York County, The corporate debt pursuant to which judgment was confessed was incurred by a Pennsylvania corporation with a registered ollice and only place of business located in York County, Plaintiff is - 7. a Pennsylvania corporation with Its principal ollice located in Berks County, I)enllsylvania, Neither of the individual Delendant~ nor the primary debtor, McCall Homes, have a residence, place of business or other contacts with Cumberland County, Pennsylvania, PARCP. Rule 1006(a) neads in pertinent part "an action against an individual may be brought in and only in a county in which he may be served or in which the clluse of action arose or where a transaction or occurrence took place out of which the cause of action arose", See, PaRCP, Rule 1006(a), No cause of action among the parties &rose in Cumberland County and there was no transaction or occurrence between Petitioner, John McCall or McCall Homes and Kohl which arose or took place in Cumberland County, All transactions and occurrences alllong the loregoing took place in either Lancaster County or York County, Kohl has attempted to assert venue in Cumberland County based upon a venue selection clause contained in the last sentence of the lirst paKe ofits Application. That sentence is 139 words long Bnd begins with the non-sensical phrase "This Guarantors", That sentence also includes confusing language in which singular and plural nouns and verbs do not match. In addition, that same sentence includes purported waivers of due process rights and an appointment of an attorney in fact for the conlession ofjudglllent. Petitioner did not understand that long convoluted sentence and therelore did not consent to venue in Cumberland County, Although venue selection clauses are no longer invalid per se in Pennsylvania, private parties cannot change by contract the rules of jurisdiction or venue embodied in the various laws of the Commonwealth, Central Contractin~ Co v C E Youn~dahl & Co, 418 Pa, 122,133,209 A.2d 810 (1965 ). Venue is not proper in Cumberland COllnty despite the conlusing language of - 8- C, Are the guaranty and warrant to confess judgment valid? Suggested Answer: No. D. Were legal fees included in the judgment reasonable? Suggested Answer: No. E, Is venue proper in Cumberland County? Suggested Answer: No. U. STATEMENT OF FACTS. On May 8. 1997, Petitioner Jeffrey A. Stalter signed a "Business Credit Application" (hereinafter the" Application"). The Application was prepared by Plaintiff Kohl Roofing & Siding Co. (hereinafter "Kohl"), Kohl alleges that the Application contains a personal guaranty which imposes liability on Petitioner and a warrant of attorney allowing Kohl to confm judgment against Petitioner, On May 8, 1997, and for some time before that Kohl was involved in the business of selling building materials to a Pennsylvania business corporation named McCall Homes, Inc. (hereinafter "McCall Homes"), Kohl shipped products to McCall Homes for which Kohl was not paid, Kohl has alleged that the invoices not paid by McCall Homes total $27,738,69. Petitioner has been unable to determine whether or not that amount is correct. Invoices from Kohl which were not paid by McCall Homes and which were for materials shipped on or after May 8, 1997 (the date of the Application), total $13,051.40 for materials, In addition, those post-guaranty invoices include $1,202,67 of "late charges" for a total of $14,254.07, Please note, the bulk of those "late charges" are charges for unpaid invoices which . 2 . predate the guaranty sign~d by Petitioner. True and correct copics of the post-guaranty invoices are attached to Petitioner's Petition to Strike or Open Judgment as Exhibit "A", On October IS, 1997, Kohl confessed Judgment against Petitioner and Mr, John McCall (hereinafter "Mr. McCall"), persoJ1a11y, That Judgment was in the amount of$34,44 U 2 which included the "principal" allegedly due of$27,738.69, interest of$I,154.43 and attorney's fees of $5,548,00 (hereinafter the "Judgment"), IlL Argument. A. The confessed judgment includes items not authorized in the warrant of attorney and should be stricken. Confessions of Judgment are not favored in Pennsylvania, Accordingly, "[i]t is fundamental that a warrant of attorney to confess judgment must be strictly construed and that the warrant must be exercised in strict accordance with its terms," Kline v Marianne Gennantown ~,438 Pa. 41, 45, 263 A.2d 362 (1970), The terms of the purported personal guaranty included in the Application were, in pertinent part as follows: "I/WE do also unconditionally PERSONALLY GUARANTY to the Company [Kohl] the prompt payment, when due, of every claim of the Company which may hereafter arise against McCall Homes, Inc," ~,Application, Page 1, According to its own terms, the purported personal guaranty, upon which Judgment was confessed, is limited to claims of Kohl which arose after the date of the Application, The date of the Application was May 8, 1997, The unpaid invoices from Kohl for materials shipped on and after May 8, 1997, are attached to Petitioner's Petition as Exhibit "A", and total $14,254,07, which includes $1,202,67 of "late charges", Kohl, however, confessed Judgment against .3- Petitioner for $27,738,69 of"prlnciplll", 'Chal "prlnciplll" clearly is for Items which predate the May 8, 1997, purported guaranty of Petitioner, Therefore, Kohl has confessed judgments for items not guaranteed by Petition~r and not subject to the IIIleged warrant of attorney to confess judgment contained in the Application. [n addition to the prlnciplll of $27,738,69, Kohl confessed judgment against Petitioner for attorney's fees of$5,548.00, Those attorney's fees were calculated as twenty percent (20%) of the $27,738.69 "principal". Therefore, Kohl confessed judgment against Petitioner for attorney's fees which would have been due, if at all, only for invoices which predate the date of the Application, May 8, 1997. Again, Kohl has confessed judgment against Petitioner for items that are not authorized by the warrant of attorney. [t is well settled law in Pennsylvania that "if the confessed judgment includes an item not authorized in the warrant, the judgment is void in its entirety and must be stricken." ~ at 46. Accordingly, the Judgment is defective and should be stricken. B. The warrant for confession of judgment is not valid. In order for a warrant for the confession of judgment to be valid, "the law jealously insists on proof that this helplessness and impoverishment was voluntarily accepted and consciously assumed [by the debtor)", Cutler COqJ v Latshaw, 374 Pa, 1,4,97 A2d 234 (1953). In addition the Pennsylvania Supreme Court has held that "[a]n authority to confess judgment must be clear and explicit," Jd. at 4, In this case, Petitioner was unaware that a warrant to confess judgment was contained in the Application, The purported warrant is contained in the last paragraph of the first page of the Application in a sentence that is 139 words long, The sentence .4. strike the judgment of Kohl Rooting & Siding Co as invalid, C. Both the guaranty and warrant to confess judgment are invalid. Petitioner signed the purported WUITant to confess judgment Il/ld personal guaranty in his corporate capacity as Secretary and Treasurer of McCall Homes. Petitioner did not sign the Application in his Indlvidulli capacity, The Superior Court has held that it is reversible error to refuse to strike a confessed judgment when "appellant did not sign the note containing a warrll/lt ofallorney in his individulli capacity." Solebury Nationlli Bank of New Hope v Cairns and Kratz, 252 Pa, Super, 45, 46, 380 A.2d 1273 (1977). Although the facts of Sole bury are slightly different than those in this case, the proposition oflaw holds true and is equally applicable. Petitioner did not sign the Application In his individual capacity and if Kohl intended him to sign in an individual capacity, Kohl should have rejected his signature as all officer of McCall Homes and required him to resign the Application in his individual capacity. Kohl did not do this, but rather accepted the Application as signed by Petitioner in his corporate capacity, "It is well- settled that a written lease or contract which authorizes a party to confess judgment must be clear and explicit and strictly construed," Solebury, at 48, Accordingly, strict construction of the Application would not apply it to Petitioner personally, but rather would apply the personal guaranty and warrant lor confession of judgment, if at all, to McCall Homes since only the officers of McCall Homes signed in their corporate capacity, The language drafted by Kohl and included in its Application was too confusing for Petitioner to understand the use to which Kohl would later put that Application, Therefore, confession of judgment should not be allowed against Petitioner for the debts which he could not .6- have reasonably known Kohl would expect him to pay personally and the Judgme!)t should be opened or stricken, D. Plaintiff has demanded unreasonable lelllll fees. The Judgment included attorney's lees 01'$5,548,00, That represents twenty percent (20%) of the principal amount of $27,738,69, Aside from sending a single demand letter on August 4, 1997, and preparing the Complaint for Confession of Judgment, it does not appear that Kohl's attorneys pelformed any other legal services in connection with the confession of judgment. Accordingly, legal fees of $5,548,00 are not reasonable for the sending of a single page letter and preparation of a Complaint containing ten paragraphs, Even if the personal guaranty and warrant to confess judgment in an Application are valid, Kohl is entitled only to recover reasonable attorney's fees from Petitioner, The amount of attorney's lees for which Judgment was confessed in this case is not reasonable and, therefore, this Court should open the Judgment. E. Venue is not proper in Cumberland County. Kohl confessed judgment against Petitioner in Cumberland County, Pennsylvania, There is absolutely no basis supporting venue in Cumberland County, Petitioner is now and at all times relevant hereto has been a resident of Lancaster County. Pennsylvania, The other Oetendant against whom Kohl confessed judgment, John McCall is now and at all times relevant hereto has been a resident of York County, Pennsylvania, The Application was signed in York County, The corporate debt pursuant to which judgment was confessed was incurred by a PeMsylvania corporation with a registered office and only place of business located in York County, Plaintiff is .7. a Pennsylvania corporlltion with its prlnc\plll ollice located in Berks County. Pennsylvania, Neither of the individulll Detimdants nor the primary debtor. McCall Homes. have a residence, place of business or other contacts with Cumberland County, Pennsylvania. PAR,C.P. Rule 1006(a) reads in pertinent part "an action Bgwnstan individual may be brought in and only in a county in which he may be served or in which the cause of action arose or where a transaction or occurrence took place out of which the cause of action arosc", See. Pa,R,C.P. Rule 1006(a). No cause of action among the parties arose in Cumberland County and there was no transaction or occurrence between Petitioner. 10hn McCall or McCaJl Homes and Kohl which arose or took place in Cumberland County. All transactions and occurrences among the foregoing took place in either Lancaster County or York County. Kohl has attempted to assert venue in Cumberland County based upon a venue selection clause contained in the last sentence of the first page of its Application. That sentence Is 139 words long and begins with the non-sellsical phrase "This Guarantors". That sentence also includes confusing language in which singular and plural nouns and verbs do not match, [n addition. that same sentence includes purported waivers of due process rights and an appointment of an attorney in fact for the confession of judgment Petitioner did not understand that long convoluted sentence and therefore did not consent to venue in Cumberland County, Although venue selection clauses are no longer invalid per se in Pennsylvania, private parties cannot change by contract the rules of jurisdiction or venue embodied in the various laws of the Commonwealth, Central Contractinll Co v C E Younlldahl & Co. 418 Pa, 122.133.209 A.2d 810 (1965), Venue Is not proper in Cumberland County despite the confusing language of - 8. . C, Are the guaranty and warrant to confess judgment valid? Susaested Answer: No. D, Were leglll fees Included in the judl!Jl1ent reasonable? Suggested Answer: No, E, Is venue proper in Cumberland County? Suggested Answer: No. n. STATEMENT OF FACTS. On May 8, 1997, Petitioner leorey A, Stalter signed a "Business Credit Application" (hereinafter the "Application"), The Application was prepared by PlaintitrKohl Roofing & Siding Co, (hereinafter "Kohl"). Kohl alleges that the Application contains a personal guaranty which imposes liability on Petitioner and a warrant of attorney allowing Kohl to confess judgment against Petitioner. On May 8, 1997, and for some time before that Kohl was involved in the business of selling building materillls to a Pennsylvania business corporation named McCall Homes, Inc. (hereinafter "McCall Homes"), Kohl shipped products to McCall Homes for which Kohl was not paid, Kohl has alleged that the invoices not paid by McCall Homes total $27,738.69, Petitioner has been unable to determine whether or not that amount is correct Invoices from Kohl which were not paid by McCall Homes and which were for materials shipped on or after May 8,1997 (the date of the Application), total 513,051.40 for materials. In addition, those post-guaranty invoices include 51,202.67 of "late charges" for a total of $14,254,07, Please note, the bulk of those "late charges" are charges for unpaid invoices which . 2 . predate the guaranty signed by Petitioner. True and correct copies of the post-guaranty invoices are attached to Petitioner's Petition to Strike or Open Judgment as Exhibit "A". On October IS, 1997, Kohl confessed Judgment against Petitioner and Mr, John McCall (hereinafter "Mr, McCwln), personally. That Judgment was in the amount of $34,441,12 which included the "principal" allegedly due of$27,738.69, interest of$I,154.43 and attorney's fees of $5,548.00 (hereinafter the "Judgment"), m. Argument. A, Th~ confessed judgment includes items not authorized in the warrant of attorney and should be stricken. Confessions of Judgment are not favored in Pennsylvania. Accordingly, "[i]t is fundamental that a warrant of attorney to confess judgment must be strictly construed and that the warrBAt must be exercised in strict accordance with its terms," Kline v Marianne Gennantown Clml., 438 Pa. 41, 45, 263 A.2d 362 (1970), The tenns of the purported personal guaranty included in the Application were, in pertinent part as follows: "UWE do also unconditionally PERSON ALL Y GUARANTY to the Company [Kohl] the prompt payment, when due, of every claim of the Company which may hereafter arise against McCall Homes, Inc," ~,Application, Page I, According to its own terms, the purported personal guaranty, upon which Judgment was confessed, is limited to claims of Kohl which arose after the date of the Application, The date of the Application was May 8, 1997, The unpaid invoices from Kohl for materials shipped on alld after May 8,1997, are attached to Petitioner's Petition as Exhibit "An, and total $14,254,07, which includes $1,202,67 of "late charges", Kohl, however, confessed Judgment against . 3 . Petitioner for $27,738.69 of "principal". That "principal" clearly is for items which predate the May 8, 1997, purported guaranty of Petitioner, Therefore, Kohl has confessed judgments for items not guaranteed by Petitioner and not subject to the alleged warrant of attorney to confess judgment contained in the Application. In addition to the principal of $27,738.69, Kohl confessed Judgment against Petitioner for attorney's fees of$5,548.00. Those attorney's fees were calculated as twenty percent (20%) of the $27,738,69 "principal". Therefore, Kohl confessed jUdgment against Petitioner for attorney's fees which would have been due, if at all, only for invoices which predate the date of the Application, May 8, 1997, Again, Kohl has confessed judgment against Petitioner for items that are not authorized by the warrant of attorney, It is well settled law in Pennsylvania that "if the confessed judgment includes an item not authorized in the warrant, the judgment is void in its entirety and must be stricken," Kline at 46. Accordingly, the Judgment is defective and should be stricken, B. The warrant for conCession of judgment is not valid. In order for a warrant for the confession of judgment to be valid, "the law jealously insists on proof that this help!essness and impoverishment was voluntarily accepted and consciously assumed [by the debtor]", Cutler Cor:p v Latshavt, 374 Pa, 1,4,97 A.2d 234 (1953), In addition the Pennsylvania Supreme Court has held that "[a]n authority to confess judgment must be clear and explicit." -Ill, at 4. In this case, Petitioner was unaware that a warrant to confess judgment was contained in the Application. The purported warrant is contained ill the last paragraph of the first page of the Application in a sentence that is 139 words long, The sentence . 4- strike the,judgment of Kohl Roofing & Siding Co, 115 invlllid. C. Both the guaranty and warrant to confess judgment are invalid. Petitioner signed the purported warrant to confess judgment and personal guarlUlty in his corporate capacity as Secretary and Treasurer of McClII1 Homes. Petitioner did not sign the AppUcation in his individulll capacity. The Superior Court has held that it is reversible error to refuse to strike a confessed judgment when "appellant did not sign the note containing a warrant of attorney in his individulll capacity," Solebul:}' National Bank of New Hope v Cairns and Kratz. 252 Pa, Super, 45,46,380 A,2d 1273 (1977). Although the facts ofSolebul:}' are slightly different than those in this case, the proposition oflaw holds true and is equally applicable. Petitioner did not sign the Application in his individual capacity and if Kohl intended him to sign in an individual capacity, Kohl should have rejected his signature as an officer of McCall Homes and required him to resign the Application in his individual capacity, Kohl did not do this, but rather accepted the Application as signed by Petitioner in his corporate capacity, "It is well- settled that a written lease or contract which authorizes a party to confess judgment must be clear and explicit and strictly construed," Solebury at 48, Accordingly, strict construction of the Application would not apply it to Petitioner personally, but rather would apply the personal guaranty and warrant for confession of judgment, if at all, to McCall Homes since only the officers of McCall Homes signed in their corporate capacity. The language drafted by Kohl and included in its Application was too confusing for Petitioner to understand the use to which Kohl would later put that Application. Therefore, confession of judgment should not be allowed against Petitioner for the debts which he could not .6- have relllonably known Kohl would expect hlm to pay personally and the ludgment should be opened or stricken. D. Plaintiff has demanded unrellsonable leglll fees. The ludgment included attorney's lees 01'$5,548,00. That represents twenty percent (20%) of the principal amount 01'$27,738,69. Aside from sending a single demand letter on August 4, 1997, and prepAring the Complaint for Confession of ludgment, it does not appear that Kohl's attorneys perfonned any other legal services in connection with the confession of judgment. Accordingly, legal fees 01'$5.548.00 are not reasonable for the sending ofa single page letter and preparation ofa Complaint containing ten paragraphs, Even if the personal guaranty and warrant to confess judgment in an Application are valid, Kohl is entitled only to recover reasonable attorney's fees from Petitioner, The amount of attorney's fees for whlch Judgment was con/essed in this case is not reasonable and, therefore, this Coun should open the Judgment. E. Venue Is not proper in Cumberlllnd County. Kohl confessed judgment against Petitioner in Cumberland County, Pennsylvania. There is absolutely no basis supporting venue in Cumberland County, Petitioner is now and at all times relevant hereto has been a resident of Lancaster County, Pennsylvania, The other Defendant against whom Kohl confessed judgment, 10hn McCall is now and at all times relevant hereto has been a resident of York County, PeMsylvania. The Application was signed in York County. The corporate debt pursuant to which judgment was confessed Will incurred by a PeMsylvania corporation with a registered office and only place of business located in York County, Plaintift'is .7. a PeMsylvanla corporation with its principal olllce located in Berks County, PeMsylvanla, Neither of the individual Delimdants nor the primary debtor, McCall Homes, have a residence, place of business or other contactS with Cumberland County, PeMsylvania. PA,R,C.P. Rule 1006(a) reads in pertinent part "an action against an individual may be brought in and only in a county in which he may be served or in which the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose", See, Pa,R.C.P, Rule 1006(a), No cause of IIction among the parties arose in Cumberland County and there was no transaction or occurrence between Petitioner, John McCall or McCall Homes and Kohl which arose or took place in Cumberland County, All transactions and occurrences among the foregoing took place in either Lancaster County or York County. Kohl has attempted to assert venue in Cumberland County based upon a venue selection clause contained in the last sentence of the first page of its Application, That sentence is 139 words long and begins with the non-sensical phrase "This Guarantors", That sentence also includes confusing language in which singular and plural nouns and verbs do not match. In addition, that same sentence includes purported waivers of due process rights anll an appointment of an attorney in fact for the confession of judgment. Petitioner did not understand that long convoluted sentence and therefore did not consent to venue in Cumberland County, Although venue selection clauses are no longer invalid per se in PeMsylvania, private parties CllMot change by contract the rules of jurisdiction or venue embodied in the various laws of the Commonwealth, Central Contractinll Co v C E Younidahl & Co, 418 Pa, 122, 133,209 A.2d 810 (1965), Venue is not proper in Cumberland County despite the confusing language of .8. ., \ ~ ; . d' 1\,:;,\;\'/.1'-";1' 1; I " 'q J; " I J.~ _ , i", . . ',' ( , \ I,' ,.. \ " " \ 4' t, , , -- ;..;,.t....,,-.......- C. An the guaranty and warrant to confess judgment valid? Suggested Answer: No. D. Were legal fees included in the judgment reasonable? Suggested Answer: No. E. Is venue proper in Cumb~rland County? Suggested Answer: No. n. STATEMENT OF FACTS. On May 8, 1997, Petitioner Jeffrey A. Stalter signed a "Business Credit Application" (hereinafter the "Application"). The Application was prepared by PlaintitfKohl Roofing & Siding Co. (hereinafter "Kohl"). Kohl alleges that the Application contains a personal guaranty which imposes liability on Petitioner and a warrant of attorney allowing Kohl to confess judgment against Petitioner. On May 8, 1997, and for some time before that Kohl was involved in the business of selling building materials to a PeMsylvania business corporation named McCall Homes, Inc. (hereinafter "McCall Homes"). Kohl shipped products to McCall Homes for which Kohl was not paid. Kohl has alleged that the invoices not paid by McCall Homes total $27,738.69. Petitioner has been unabl~ to determine whether or not that amount is correct. Invoices from Kohl which were not paid by McCall Homes and which were for materials shipped on or after May 8,1997 (the date of the Application), total $13,051.40 for materials. In addition, those post-guaranty invoices include $1,202.67 of "late charges" for a total of $14,254.07. Please note, the bulk of those "late charges" are charges for unpaid invoices which . 2 . predate the guaranty signed by Petitioner. True and correct copies of the post-guaranty invoices are attached to Petitioner's Petition to Strike or Open Judgment as Exhibit "A". On October 15, 1997, Kohl conlessed Judgment against Petitioner and Mr. John McCall (hereinafter "Mr. McCall"), personally. That Judgment was in the amount of $34,441.12 which included the "principal" allegedly due of$27,738.69, interest of$I,154.43 and attorney's fees of $5,548.00 (hereinafter the "Judgment"). m. Argument. A. The conf~ssed judgment includes items not authorized in the warrant of attorney and should be stricken. Confessions of Judgment are not favored in PeMsylvania. Accordingly, "[ilt is fundamental that a warrant of attorney to confess judgment must be strictly construed and that the liVarrant must be exercised in strict accordance with its terms." Kline v Marianne Germantown Cw:Il., 438 Pa. 41, 45, 263 A.2d 362 (1970). The terms of the purported personal guaranty included in the Application were, in pertinent part as follows: "IJWE do also unconditionally PERSONALLY GUARANTY to the Company [Kohl] the prompt payment, when due, of every claim of the Company which may hereafter arise against McCall Homes, Inc." 5<<, Application, Page I. According to its own terms, the purported personal guaranty, upon which Judgment was confessed, is limited to claims of Kohl which arose after the date of the Application. The date of the Application was May 8, 1997. The unpaid invoices from Kohl for materials shipped on and after May 8, 1997, are attached to Petitioner's Petilion as Ex:hibit "A", and total $14,254.07, which includes $1,202.67 of "late charges". Kohl, however, confessed Judgment against - J . Petitioner for $27,738.69 of "principal". That "principal" clearly is for items which predate the MllY 8, 1997, purported gUllrllnty of Petitioner. Therefore, Kohl has contessed judgments for items not guaranteed by Petitioner and not subject to the a1kged WllITant of attorney to confess judgment contained in the Application. In addition to the principal of$27,738.69, Kohl confessed judgment against Petitioner for attorney's fees of $5,548.00. Those attorney's fees were calculated as twenty percent (20%) of the $27,738.69 "principal". Therefore, Kohl confessed judgment against Petitioner for attorney's fees which would have been due, if at all, only for invoices which predate the date of the Application, May 8, 1997. Again, Kohl has confessed judgment against Petitioner for items that are not authorized by the WllITant of attorney. It is well settled law in PeMsylvania that "if the confessed judgment includes an item not authorized in the wmant, the judgment is void in its entirety and must be stricken." Kliw: at 46. Accordingly, the Judgment is defective and should be stricken. B. The warrant for confession of judgment is not valid. In order for a wmant for the confession of judgment to be valid, "the law jealously insists on proof that this helplessness and impoverishment was voluntarily accepted and consciously assumed [by the debtor]". Cutler Corp v Latshaw, 374 Pa. I, 4,97 A.2d 234 (1953). In addition the Pennsylvania Supreme Court has held that "[a]n authority to confess judgment must be clear llOd explicit." Jd. at 4. In this case, Petitioner was unaware that a WllITllOtto confess judgment was contained in the Application. The purported warrllOt is contained in the last paragraph of the first page of the Application in a sentence that is 139 words long. The sentence .4. strike thejudgmellt of Kohl Roofing & Siding Co. lIS invalid. C. Ooth the guarllllty llnd warrant to confess judgment are invalid. Petitioner signed the purported warrant 10 confess judglTIentllOd personal guarllOty in his corporate capacity as Secretary and Treasurer of Me Call Homes. Petitioner did not sign the Application in his individual capacity. The Superior Court has held that it is reversible error to refuse to strike a confessed judgment when "appelllU1t did not sign the note containing a warrllOt of attorney in his individual capacity." Solebury National Bank of New Hope v Cairns and Kratz, 252 Pa. Super. 45, 46, 380 A.2d 1273 (1977). Although the facts of Solebury are slightly ditTerentthllO those in this case, the proposition of law holds true and is equally applicable. Petitioner did not sign the Application in his individual capacity llOd if Kohl intended him to sign in an individual capacity, Kohl should have rejected his signature as 1lO officer of McCall Homes llOd required him to resign the Application in his individual capacity. Kohl did not do this, but rather accepted the Application as signed by Petitioner in his corporate capacity. "It is well- settled that a written lease or contract which authorizes a party to confess judgment must be clear llOd explicitllOd strictly construed." Solebury. at48. Accordingly, strict construction of the Application would not apply it to Petitioner personally, but rather would apply the personal guarllOty llOd wmllOt for confession of judgment, if at all, to McCall Homes since only the officers of McCall Homes signed in their corporate capacity. The 11lOguage drafted by Kohl and included in its Application was too confusing for Petitioner to understllOd the use to which Kohl would later put that Application. Therefore, confession of judgment should not be allowed against Petitioner for the debts which he could not - 6- have reasonably known Kohl would expect him to pay personally and the ludgment should bo opened or stricken. D. PlaintilT has demanded unreasonable legal ffes. Tht" Judgment included attorney's lees of$5,548.00. That represents twenty percent (20%) of the principal amount of$27,738.69. Aside from sending a single demllOd letter on August 4, 1997, llOd preparing the Complaint for Confession of Judgment, it does not appear that Kohl's attorneys performed llOy other legal services in co Meet ion with the confession of judgment. Accordingly, legal fees of$5,548.00 lire not reasonable for the sending ofa single page letter llOd preparation of a Complaint containing ten paragraphs. Even if the personal guarllOty llOd warrllOtto confess judgment in 1lO. Application are valid, Kohl is entitled only to recover reasonable attorney's fees from Petitioner. The amount of attorney's fees for which Judgment was confessed in this case is not reasonable and, therefore, this Court should open the Judgment. E. Venue is not proper in Cumberland County. Kohl confessed judgment against Petitioner in CumberlllOd County, Pennsylvania. There is absolutely no basis supporting venue in CumberlllOd County. Petitioner is now llOd at all times relevllOt hereto has been a resident of LllOcaSler County, Pennsylvania. The other Delendant against whom Kohl confessed judgment, 10hn McCall is now and at all times relevllOt hereto has been a resident of York County, PeMsylvania. The Application was signed in York County. The corporate debt pursuant to which judgment was confessed was incurred by a PeMsylvania corporiltion with a registered office and only place of business located in York County. Plaintitfis - 7 - a Pennsylvania corporation with ita principal oll1ce located in Berka County, PeMsylvania. Neither of the individual Delendants nor the primllry debtor, McCall Homes, have a residence, place of business or other contacts with Cumberland County, Pennsylvania. PAR.C.P. Rule 1006(a) reads in pertinent part "an action agwnstlln individual may be brought in and only in a county in which he may be served or in which the cause of action arose or where a trllOsaction or occurrence took placo out ofw:lich the cause of action arose". See, Pa.R.C.P. Rule 1006(a). No cause of action among the parties arose in Cumberlllnd County llOd there was no trllOsaction or occurrence between Petitioner, John McCall or McCall Homes llOd Kohl which arose or took place in CumberlllOd County. AlltrllOsactions and occurrences among the foregoing took place in either Lancaster County or York County. Kohl has attempted to assert venue in Cumberland County based upon a venue selection c:1ause contained in the last sentence of the first page of its Application. That sentence is 139 words long and begins with the non-sensical phrase "This Guarantors". That sentence also inc:1udes confusing language in which singular and plural nouns llOd verbs do not match. In addition, that slime sentence includes purported waivers of due process rights and an appointment of 1lO attorney in fact for the confession of judgment. Petitioner did not understand that long convoluted sentence and therefore did not consent to venue in Cumberland County. Although venue selection clauses are no longer invalid per se in Pennsylvania, private parties CllMot chllOge by contract the rules of jurisdiction or venue embodied in the various laws of the Commonwealth. Central Contract in II Co v C E Younlldllhi & Co , 418 Pa. 122, 133,209 A.2d 810 (1965). Venue is not proper in Cumberland County despite the confusing 11lOguage of - 8 - \ II . '. ."'., ;'\J 11;1 ",:,,;1; '\';,1: ,i . . '\ l ~ . , 'I , . 'Jf ( . " ~ '. \ \. , , \. -" C. Are the guaranty and warrant to confess judgment valid? Suggested Answer: No. D. Were legal feea included in the judgment reasonable? Suggested Answer: No. E. Is venue proper in CumberlllOd County? Suggested Answer: No. n. STATEMENT OF FACTS. On May 8, 1997, Petitioner JetUey A. Stalter signed a "Business Credit Application" (hereinafter the" Application"). The Application was prepared by Plaintiff Kohl Roofing & Siding Co. (hereinafter "Kohl"). Kohl alleges that the Application contains a personal guaranty which imposes liability on Petitioner and a WllITllOt of attorney allowing Kohl to confess judgment against Petitioner. On May 8, 1997, llOd for some time before that Kohl was involved in the business of selling building materials to a PeMsylvania business corporation named McCall Homes, Inc. (hereinafter "McCall Homes"). Kohl shipped products to McCall Homes for which Kohl was not paid. Kohl has alleged that the invoices not paid by McCall Homes total $27,738.69. Petitioner has been unable to determine whether or not that amount is correct. Invoices from Kohl which were not paid by McCall Homes llnd which were for materials shipped on or after May 8, 1997 (the date of the Application), total $13,051.40 for materials. In addition, those post-guarllOty invoices include $1,202.67 of "late charges" for a total of $14,254.07. Please note, the bulk of those "late charges" are charges for unpaid invoices which - 2 - predate the gullrllOty signed by Petitioner. True and correct copies of the post-gullrllOty invoices are attached to Petitioner's Petition to Strike or Open Judgment as Exhibit "A". On October 15, 1997. Kohl confessed Judgment against Petitioner llOd Mr. Jolul McCall (hereinafter "Mr. McCall"), personally. That Judgment was in the amount of $34,441.12 which included the "principal" allegedly due of $27,738.69, interest of $1,154.43 llOd attorney's fees of $5,548.00 (hereinafter the "Judgment"). III. Argument. A. The confessed judgment includes items not authorized In the warrant of attorney and should be stricken. Confessions of Judgment are not favored in Pennsylvania. Accordingly, "[i]t is fundamental that a warrant of attorney to confess judgment must be strictly construed llnd that the warrllOt must be exercised in strict accordance with its terms." Kline v MariaMe Germantown Cw:Il., 438 Pa. 41, 45, 263 A.2d 362 (1970). The terms of the purported personal guaranty included in the Application were, in pertinent part as follows: "I/WE do also unconditionally PERSONALLY GUARANTY to the Company [Kohl] the prompt payment, when due, of every c111im of the Company which may hereafter arise against McCall Homes, Inc." 5<<, Application, Page I. According to its own terms, the purported personal guarllOty, upon which Judgment was confessed, is limited to claims of Kohl which arose after the date of the Application. The date of the Application was May 8, 1997. The unpaid invoices from Kohl for materials shipped on llnd after May 8, 1997, are attached to Petitioner's Petition as Exhibit "A", and total $14,254.07, which includes $1,202.67 of "late charges". Kohl, however, confessed Judgment against - 3 - Petitioner for $27,738.69 of "principal". That "principal" clearly is for items which predate the May 8, 1997, purported guarllOty of Petitioner. Therefore, Kohl has contessed judgments for items not gullranteed by Petitioner and not subject to the alleged warrllOt of attorney to confess judgment contained in the Application. In addition to the principal of$27,738.69, Kohl confessed judgment against Petitioner for attorney's fees of $5,548.00. Those attorney's fees were calculated as twenty percent (20%) of the $27,738.69 "principal". Therefore, Kohl confessed judgment against Petitioner for attorney's fees which would have been due, if at all, only for invoices which predate the date of the Application, May 8,1997. Again, Kohl has confessed judgment against Petitioner for items that are not authorized by the warrant of attorney. It is well settled law in PeMsylvania that "if the confessed judgment includes 1lO item not authorized in the WllITant, the judgment is void in its entirety llOd must be stricken." Klint at 46. Accordingly, the Judgment is defective llOd should be stricken. B. The warrant for confession of judgment is not valid. In order for a WllITllOt for the contession of judgment to be valid, "the law jealously insists on proof that this helplessness llOd impoverishment was voluntarily accepted llOd consciously assumed [by the debtor)". Cutler Corp v Latshaw, 374 Pa. 1,4,97 A.2d 234 (1953). In addition the Pennsylvania Supreme Court has held that "[a]n authority to confess judgment must be clear llOd explicit." .!d. at 4. In this case, Petitioner was unaware that a WllITllOtto confess judgment was contained in the Application. The purported WllITllOt is contained in the last paragraph of the first page of the Application in a sentence that is 139 words long. The sentence - 4 - strike the judgment of Kohl Roofing & Siding Co. ulnvalid. C. Both the guaranty and warrant to confess judgment are Invalid. Petitioner signed the purported warrant to confess judgment and personal guaranty in his corporate capacity as Secretary and Treasurer of McCall Homes. Petitioner did not sign the Application in his individual capacity. The Superior Court has held that it is reversible elTor to refuse to strike a confessed judgment when "appellllOt did not sign the note containing a warrant ofallomey in his individual capacity." Solebury National Blink of New Hope v Cainls and~ 252 Pa. Super. 45,46,380 A.2d 1273 (1977). Although the facts of Sole bury are slightly ditferentthan those in this case, the proposition oflaw holds true and is equally applicable. Petitioner did not sign the Application in his individual capacity and if Kohl intended him to sign in 1lO individual capacity, Kohl should have rejected his signature as an officer of McCall Homes llOd required him to resign the Application in his individual capacity. Kohl did not do this, but rather accepted the Application as signed by Petitioner in his corporate capacity. "It is well. settled that a written lease or contract which authorizes a party to r.onfess judgment must be clear and explicitllOd strictly construed." Solebury, at 48. Accordingly, strict construction of the Application would not apply it to Petitioner personally, but rather would apply the personal guaranty and warrant for confession of judgment, if at all, to McCall Homes since only the officers of McCall Homes signed in their corporate capacity, The language drafted by KohlllOd included in its Application was too confusing for Petitioner to understllOd the use to which Kohl would later put that Application. Therefore, confession of judgment should not be allowed against Petitioner for the debts which he could not - 6- have reasonably known Kohl would expect him to pay personally llDd the Judgment should be opened or stricken. D. Plaintiff bas demanded unreasonable legal fees. The Judgment included attorney's fees of$5,548.00. That represents twenty percent (20%) of the principal amount of$27,738.69. Aside from sending a single demand letter on August 4, 1997,llOd prepllring the Complaint for Confession of Judgment, it does not appear that Kohl's attorneys performed llOy other legal services in connection with the confession of judgment. Accordingly, legal fees of $5,548.00 are not. reasonable for the sending of a single page letter llOd preparation of a Complaint comaining ten paragraphs. Even if the personal guaranty and WllITllOtto confess judgment in 1lO Application are valid, Kohl is entitled only to recover reasonable attorney's fees from Petitioner. The amount of attorney's fees for which Judgment was confessed in this case is not reasonable and, therefore, this Court should open the Judgment. E. Venue is not proper in Cumberland County. Kohl confessed judgment against Petitioner in Cumberland County, Pennsylvania. There is absolutely no basis supporting venue in Cumberland County. Petitioner is now llOd at all times releVllOl hereto has been a resident of Lancaster County, PennsylvllOia. The other Defendant against whom Kohl confessed judgment, John McCall is now and at all times relevant hereto has been a resident of York County, PeMsylvania. The Application was signed in York County. The corporate debt pursullOt to which judgment was confessed was incurred by a PeMsylvania corporation with a registered office llOd only place of business located in York County. Plaintitfis - 7- a Pennsylvania corporation with its principal office located in Berks County, PeMsylvania. Neither of the individual DefendllOts nor the primllry debtor, McCall Homes, have a residence, place of business or other contacts with Cumberland County, PeMsylvania. PAR.C.P. Rule 1006(a) reads in pertinent part "an action against an individual may be brought in llOd only in a county in which he may be served or in which the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose". See, Pa.R.C.P. Rule I006(a). No cause of action among the parties arose in CumberlllOd County and there was no trllOsaction or occurrence between Petitioner, John McCall or McCall Homea llOd Kohl which arose or took place in Cumberland County. All transactions and occurrences among the foregoing took place in either LllOcaster County or York County. Kohl ha.~ attempted to assert venue in Cumberland County based upon a venue selection clause contained in the last sentence of the first page of its Application. That sentence is 139 words long llOd begins with the non-sensical phrase "This Guarantors". That sentence also includes confusing lllOguage in which singular and plural nouns and verbs do not match. In addition, that same sentence includes purported waivers of due process rights and 1lO appointment of 1lO attorney in fact for the confession of judgment. Petitioner did not understand that long convoluted sentence llOd therelbre did not consent to venue in CumberlllOd County. Although venue selection clauses are no longer invalid per se in PeMsylvanill, private parties CllMot change by contract the rules of jurisdiction or venue embodied in the vllrious laws of the Commonwealth. Central Contractinll Co v C E Younlldllhi & Co, 418 Pa. 122,133,209 A.2d 810 (1965). Venue is not proper in Cumberland County despite the confusing 11lOguage of - 8. .'. , , " , ' , '. ./ , , " jl ", , , , , , , , , ri: -' ~ , ..:.l , [~j~ . .. , ; ....,., " 11.1-" C>J , I, : ~': r(: ; 7":: ,. I;!.. 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