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Home My WebLink About98-06663 ~ ~ c21 <(I -1 0/) ">'. . ~ (f I .() ~ - ~ - t;j cO ~ ~ Ji , , I j 0<J1 ~j , ~j ,~:. ;~l " 'oQ 0- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION, LAW BELL ATLANTIC - PENNSYLVANIA, INC. Plaintiff No. vs. LA FONTANA, INC. CIVIL ACTION Defendant PRAECIPE FOR TRANSFER OF JUDGMENT TO THE PROTHONOTARY, CUMBERLAND COUNTY: Kindly ~nter judgment in favor of Plaintiff and against the above-named defendantlsJ. pursuant to Pa,R.C.P,D.J. No.402(Dl. for failure of defendant(s) to appeal. within 30 days, a judgement entered July 13, 1998 against the above-named defendant(s1 before Philadelphia Municipal Court, as set forth in the transcript of judgment, which is attached hereto, Assess damages as follows: Judgment Amount Post Judgment Interest (from July 13. 1998 to November 17. 1998 at 6% per annum) Payments 3.477.11 70.80 100.00 Total $3,447.91 Dated: November 17, 1998 980275 AMA TO AND ASSOCIA TE~, By: ffi~4~ Ronald Amato Attorney I,D, No. 32323 Attorneys for Plaintiff 107 North Commerce Way Bethlehem, PA 18017 (610) 866-0400 , , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION. LAW BELL ATLANTIC. PENNSYLVANIA, INC. Plaintiff No, VS, LA FONTANA, INC. CIVIL ACTION . ~' ., Defendant CERTIFICATION OF ADDRESSES I do certif\, that the precise last known address of the within named plaintiff is: 1717 Arch St.. 20th Floor Phila., PA 19103 ';l I do certify that the precise last known address of the within named defendant is: 420 Market Street LEMOYNE PA 17043 AMATO AND A~IATES, P.C. By: fi444~ Ronald Amato Attorney I.D, No. 32323 Attorneys for Plaintiff 107 North Commerce Way Bethlehem, PA 18017 (610) 866,0400 Vi? l .',," I,t .'1 ~ ~ tl~ -';1 "iZl ~ } MV 1 ~,' n: '\' I I: J~,;lll (1['-11 ,',.1 .J -~ _ t, 1 " )' " { 1'1':1'. r ,(', . ;'!J 1 '\1 i; 1'1':., ;111 I III ;[j' .1 i 1.1 "I [.j "~I . 'i _ rll . I oii, ,1< Ill'. .. .... f f PI 1-IT HI: I Hrl.l ill I HIli I' 1/1/ AIIt II '01 Pi) flOX :'HO,)<', flj III (\ 1'(, () I 1', (,..'"',.'.: " (Ir-l{t 11' 11.1 )i':!'1/11 IIHI I (I ~ j' , ,; I I j II.., I t I. fl. It I . I II! I f'H "1111 I, Ii l ; /l ~ " I r j 1"1 J [jl I ~ '(. :'-I.d 1<, I J ; r Ilf'l!'t',; 1".1 i141'- 1;['1,".f l'lli ..... t t ,"\jll j I 1'1 1/'),1 IH ljUII !, HEAHltj(, lIot 01/1 ',/'1" ,1(. I' HIE I(OC: 1 :~1 / .!li[Ii, :'. ,.'1 ~;: I H ~ l{ '-; r: I II ,IUl'(, ()!-' I'l I " I I [,1';1' hi :~ 1 ,.. .' . 1 1 lUll!, 'UI~ 1'1, [lEFL r I) IJ I; n II *** PRESS ENTER lOR f1nl~{_ ] 11 FO:'{t1A r HJI~ PII JtlI):;MENl' CERTIFIED IN TIlE I\IQJNI' OF $3477_11 COST IOCLUDED BY' '" COMMONWEALTH OF PENNSYLVANIA i THE PHilADELPHIA MUNICIPAL COURT 1.f:1 ; 34 SOUTH 11TH STREET, . 010 SC- \.' ..~~ .'fI.:V.. P.H.ILADElP.HIA,PA 19107 / \ .\/'~'et!orney ,~,o'?f.-'1: : ~'!.~ ALAN. K..SllBERSTEIN, PRESIDENT JU~E ~/ . lOr -f"d- a~LL ATLA~TIC - PE~NSYLVAN(A, INC. . LA FO~TANA, (SC. P,". 'lox 28000 20th Floor 1717 Arch Stre(!t Philndolphta, PA 19103 I; . --..-..,-, ---,-----------------..-----.---,... .---'-~_3-44_361 - '----...-- -- TO THE OEF~NDANT: Tht above named plalntlff(s) Ilk Judgment in this Coull agamsl}'ou fQ!lf' d. plus court cosls upon the following claim At the spec al instance and request ot Ue en ant, Plaintiff provided advertising in its publication known as Atty File n the "Yellow Pages". After applying all proper credits, 980275 there remains a principal balance due of $2,251.29, as set forth in the attached statement of account. As provided in the attached advertisement contract, Plaintiff is also entitled to interest on the above amount from 10/25/96 to 05/15/98 to the agreed rate of 181 per annum totalling $629.50 and its attorneys fees in the amount of $562.~2, for a total of $3,443.61, which, despite demand by Plaintiff, remains due. Plaintiff maintains a place of business in Philadelphia establishing a proper basis for venUf! 1n this county. Lucas Enterprises, Inc. vs. Paul C. Harmon, Inc., 417 A.2d 720 (1980). , i PLUS COURT COSTS R~m-rr-rn-AlIrn1:'.,,--l'lrlI-3-2-:t2 3 '" coo, I p"", (-6-tt) ) PO BOl< 1111, Allentown, PA 181105 865-0400 SUM MONS 10 the defendant: You are hereby CITACION . AJ Demandado: Por Ia presenle, ordered 10 appear at a hearing scheduled as follows: usted esla dirijido a presenlarse a la siguienl8 vitia en: PI,mhff(5) SERVICE ADDRESS IINFORMA TIONllf other Iha. aboy. --'.------.--...---..---.--...-.--,.--- - -,----. '-, _.,- ; 0 MOTOR VEHICLE CASE, Def.ndant L1cen.. Information I--- ____.'..........-_..__._ ___'_._. _ _ _,'__. i ~l!lInO'l . DAn 01' II'''" OHl!~O_frlT . O.l!lIno_..o xxx o NOTICE TO DEFEND FILED COUNSel FOA P\.AlfrlTI'''Anv tOo. 1<<).. NAME &AOOAESS Amato and Associates, P.C., COMMON'tIVeAL TH OF PENNSYLVANIA COUNTY OF PHILADELPHIA 5S: Ronald Amato ~ , depose and say that the facts set forth in this complaint are true and correct and acknowledge thai I am subject to the penalties of 18 P.S. 4904 relating 10 U rn FalslO. callon to AUlhor" . , ~~d15 STATEMf.NT OF CLAIM ,,I) . ~O"., cO~J, 50 COOE 420 ~Iarkct ~tr~ct LEHOYNE p~ 1704] o CONSTABLE SERVICE . O.'e,dln'/., ~+ Certified & Regular First Class 9aii 0"" 0' "'CCID[~T I.'C'frtSl! .lATl!frtO OWltf,1t . OAT[ 0' lIlt hi 0Wt0Il!.1t OPUATOltlolO I Principal Amelf'! , 2 51 .29 : $ 18 iln1e,esl al -1-0+2->-1-96-'16 . from $6-Z-9~51J-- $ Morney's Fee: $ 562 . 82 $ Other: $ TOTAL $ S3.443,61 LOCATI~ /S'101 A Courtroom 4. Fourth Floor, 34 South 11th Street ~ TlME/Henj , July 13. 1998 I 12: 30pm IN W1TNEsp,wEREOF, I ha'!J't!'II'eunlo subSCribed my name a'lP!l'ff1xed Ihe seal of the Court this day of ~ ,19 . -~~~~..- Courl Admlnlsl,./or, Phlladalphla Muntclpal Court IMPORTANT NOTICE TO THE DEFENDANT You have been sued in coul1. If you wish 10 defend against the claims sel forth, you mutt appear at the dale, lime and place as shown. You are warned Ihal If you fail 10 appear, the case may proceed without you and a Judgment may be entered agalnsl you by Ihe Court without furlher noUce for any money claimed in the complainl or for any olher claim or relief requesled by Ihe plaintiff. You may lose money or property or olher rights important 10 you. . THE MUNICIPAl, COURT COMPLIES lMTH THE AMERICANS WITH DlSABllJTIES ACT, 'htiICH REQUIRES THAT All COURT SERVICES AND FACilITIES SE ACCESSIBLE TO PERSONSlM TH DISA8llJ TIES ON AN EQUAl. BASIS TO THOSE WITHOUT DISABILITIES IF YOUHA\lEA DISABILITY. ANOREQU1RE REASONA8l.E AeCOMMOOA TIONS TO FilE A ClAIM.PARTiCl?A TE INA MUNICIPAL COURT PROC EEOlNG. OR USE ANY SERVICE PROVIDED S' THE COURT. PLEASE CAll68&.1986 REOUESTSFOR REASONABLE ACCOMMOCA TIONS MUST BE MADE AT LEASt THREE BUSINESS DAYS BEFORE AN' HEARING, OR 'MTHIN THREE BUSINESS 04'5 AFTER SERVICE (DEllVERV} OF THE NOTICE OF HEAR lNG, WHICHEVER IS LAtER 03-1(Rev 11911 NOTA IMPORTANTE PARA EL ACUSADO Usled ha sido demandado en corte, 51 usled desea defenderse contra !as quojas que aparecen en contra suya debo usted apelar el dia,la hora y sitlo que se senalo. Usled asta advertido que sl no comparece, el caso puede colinuar sin su presencia y una querella puede ser puesla en conlra suya por la corte sin ninguna notificaclon, por dinero rlclamado, o por alguna olra queJa requierda por el demandanle. Usted puede perder dinero, plopledad u olros derechos importanles para usted. . LACORTE MUNICIPALCUMPLE CON EL DECRETa DE AMERICANOS INCAPACITADOSIAMERICANS WITH DI5A8llITlESACT) ESTE DECRETOREQUIERE QUE TOOOS LOS SER....IClQSYFACILIC!ADES DE CORTE SEAN ACCESIBl.E A PERSONAS INCAPACtT AQAS,AllGUAlQUE PERSONAS NO INCAPN::ITAOAS SE USTED ESTE INCAPACIT ADO , NECESlT A ACOMODACIONES RAZONABLES, PARA ?OOER RADtcAR UNA DEMANDA. PARTICIPAR EN AlOtJN PROCEOIMIENTO 0 UTlllZAR SERVlCIOS EN I.A CORTE MUNICIPAl?OR FAVOR LLAME AL TElEFONOGM.1!Ja6 PAPA SOLICITARACOMOOACIONES RAZONABlESOE8E LL.AlMRPOR La MENDS TRES DIAS DE TRABAJOANTES DE SU AUDIENCIAO DENTRO DE TRES OIAS DESPUES OERECIBIR SU CITA, SEGUN LOaue OCURRA PRIMERO . tNo. ~~~o~ COURT HECORD - ENT::? DIGPO,;:TlGN G~.j ~.';RT 2 ,...' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION. LAW BELL ATLANTIC. PENNSYLVANIA, INC. Plaintiff No, 1998,06663 vs, LA FONTANA, INC. WRIT OF EXECUTION (MONEY JUDGMENTS) Defendantls) WRIT OF EXI;CUTION TO THE SHERIFF OF CUMBERLAND COUNTY, PENNSYLVANIA To satisfy the judgment, interest and cost against LA FONTANA. INC., Defendant(s); (1) You are directed to levy upon the property of the defendant(s) and to sell his, her (or their) interest therein; (Inquisition and Exemption Laws (are) (are not) waived, (2) You are also directed to attach the property of the defendant not levied upon in the possession 01..........,......... .."..",.........",.",....,...",.,....,...,..... ,Garnishee(s) and to notify the Garnishee(s) that (a) an attachment has been issued; (b) the garnishee(s) is enjoined from paying any debt to or for the account of the defendant(s) and from delivering any property of the defendant(s) or otherwise disposing thereof, (3) If property of the defendantls) not levied upon and subject to attachment is found in the possession of anyone other than the named garnishee(s). you are directed to notify him that he has been added as a garnishee and is enjoined as above stated. Amount Due Statutory Interest From November 23, 1998 $ 3.447,91 $ 3.92 Less Payments Costs $ $ Poundage $ Total $ 3.451,83 plus add'l costs $ DATED (SEAL) Prothonotary - Cumberland County Court of Common Pleas, Cumberland County By Attorney File#: 980275 Deputy IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION. LAW BELL ATLANTIC. PENNSYLVANIA, INC. Plaintiff No. 1998,06663 vs. LA FONTANA, INC. CIVIL ACTION Defendantls) CERTIFICATION OF DEFENDANT(s) ADDRESS FOR SERVICE I do certify that the precise last known address of the within named defendant(s) is the address provided below. and request that the Sheriff serve the above named defendant(s) at: 420 Market Street LEMOYNE PA 17043 Dated:November 30. 1998 AMATO AND AS CIATES, P.C. ~4-?~e- Ronald Amato Attorney I.D. No. 32323 Attorneys for Plaintiff By: Attorney File #:980275 BI!LL ATLANTIC. PENNSYLVANIA, INC :IN THI! COURT OF COMMON PLI!AS OF PlaIntiff : CUMBI!RLAND COUNTY, PI!NNSYLVANIA : CIVIL ACTION - LAW v. LA FONTANA, INC., Defendant : NO. 98 - 6663 CIVIL TERM : IN ASSUMPSIT PETITION TO OPEN AND STRIKE JUDGMENT NOW comes the defendant, by its attorney, Harold S, Irwin, III, Esquire, and presents this petition to open and strike judgment, representing as follows: 1, Plaintiff is Bell Atlantic - Pennsylvania, Inc" a Pennsylvania corporation with offices located at 20'h Floor, 1717 Arch Street, Philadelphia, Pennsylvania 19103. 2, Defendant is La Fontana, Inc., a Pennsylvania corporation located in Carlisle, Cumberland County, Pennsylvania 17013. 3. On or about June 2, 1998, plaintiff filed a complaint against defendant in the Philadelphia Municipal Court, 34 South 111h Street, Philadelphia, Pennsylvania, alleging that defendant had failed to pay plaintiff for the costs of certain yellow page advertising published by plaintiff on or after October 25, 1996, 4. Defendant believes and therefor avers that plaintiff obtained a judgment on its complaint by order of the Philadelphia Municipal Court on or about July 13, 1998. .... 5, On or about November 17,1998, plaintiff filed a praecipe for transfer of judgment to the Court of Common Pleas of Cumberland County, Pennsylvania, seeking transfer of its Philadelphia judgment for $3,477.11, plus post judgment interest of $70.80. less a payment credit of $100,00. for a total amount of $3,447.91. 6, On or about November 23, 1998, the Cumberland County Prothonotary mailed a notice of judgment to defendant at an address in Lemoyne. Pennsylvania, 7, Subsequently, the Sheriff 01 Cumberland County, Pennsylvania has levied upon certain personal property located at 420 Market Street, Lemoyne, Cumberland County, Pennsylvania 17043, 8, Defendant believes that the individual served with the municipal court complaint, judgment, praecipe for transfer of judgrnent, notice of judgment and sheriffs levy was Giuseppe Russo, purchaser by installment sales of the business known as La Fontana Restaurant. 420 Market Street. Lernoyne, Pennsylvania 17043, and not the owner, officer or agent of defendant La Fontana, Inc, 9, No owner, officer or agent of La Fontana, Inc" the defendant in this action, has ever been served with any of these court documents or official notices and defendant, La Fontana, Inc., has therefor never had notice of this pending action nor has it had the opportunity to defend this action. 10, On April 17, 1996, Giuseppe Russo and Vincenzo Marchiano entered into a stock purchase agreement whereby Russo agreed to purchase all of the outstanding shares of issued stock in La Fontana, Inc. and Marchiano, owner thereof, agreed to sell such stock to Russo according to the terms of the agreement, a copy of which is attached hereto and made a part hereof as Exhibit "A" 11. On May 6, 1996, counsel for the corporation, defendant La Fontana, Inc., notified all other creditors and suppliers of defendant as of that date that effective May 1, 1996, the ownership of La Fontana Restaurant was transferred to Giuseppe Russo, who would continue to operate the business at the Lemoyne location and would thereafter be responsible for all accounts payable. The letter stated that all further liability of Vincenzo Mazzamuto and/or Vincenzo Marchiano, former owners, operators and officers of the company, would be discontinued as of April 30, 1996, In addition, the letter directed such creditors to notify counsel immediately regarding any outstanding account for La Fontana, Inc, as of Apri130, 1996. 12. Plaintiff was not sent a similar letter since plaintiffs advertising services are contractual on an annual basis and the then current contract would expire at some date after the business was taken over by Russo and would have to be renegotiated between plaintiff and Russo for subsequent advertising years, 13, Plaintiff did not renegotiate a contract for the next advertising year with defendant corporation, nor with any of its officers, stockholders or agents. 14. Defendant believes and therefor avers that the present claim of plaintiff is based upon a renegotiated contract with Giuseppe Russo for the next advertising year, after the takeover of the business by Russo, 15, Russo had no authority to enter into any contract with plaintiff which would bind the defendant and therefor defendant avers that all sums due on the present claim of plaintiff covering the period of October 25, 1996 and subsequent thereto are owed to plaintiff by Russo and not by defendant. .... 16, At the time of the stock purchase agreement between Marchiano and Russo, Russo assumed responsibility of all accounts payable of defendant as of May 1, 1996 and agreed to indemnify and hold defendant harmless from all liability therefor. 17, If plaintiff is owed any sum of money for advertising services subsequent to May 1, 1996, Russo, who is not a party to this litigation at this time, is fully responsible therefor, either as the result of executing a renegotiated contract with plaintiff or based upon his assumption of all corporate liabilities as of May 1, 1996. 18. Defendant believes and therefor avers that plaintiff has never contacted defendant regarding any unpaid amount under any contract with plaintiff for advertising services or otherwise and that all contact from plaintiff regarding this matter has been between plaintiff and Russo, 19. Defendant has a meritorious defense to this action, as outlined above, and has never been served with any of the legal documents pertaining to this action, 20. Under the circumstances, plaintiffs judgment, taken with no notice to defendant and when defendant has a meritorious defense in that plaintiff has no contract with defendant, but with another individual in control of the business who has contractually agreed to assume responsibility for all accounts payable of defendant after May 1, 1996, unfairly prejudiced defendant's ability to defend this matter and should not be countenanced by this Court. 21, Under the circumstances, plaintiffs present effort to execute and levy on the property owned by defendant in order to satisfy a debt owed by another individual, Giuseppe Russo with whom plaintiff did contract, is improper and all collection actions by plaintiff against defendant should be stayed pending resolution of this motion to strike, WHEREFORE, defendant requests this Honorable Court issue a rule upon plaintiff to show cause why the judgment entered against the defendant should not be opened and stricken and why plaintiffs efforts to levy upon property owned by defendant should not be stayed pending the outcome of these proceedings, December! J: 1998 ~ L 35 East High Street Carlisle, PA 17013 (717) 243-6090 Supreme Court ID NO. 29920 YERIFICATION The foregoing averrnents of fact are based upDn information which has been gathered by my counsel in the preparation of this lawsuit. The language of the document is the language of my counsel and not my own, I have read the averments and to the extent that they are based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief, To the extent that the content of the averments is that of counsel, I have relied upon counsel in making this verification. I understand that false statements made herein are subject to the penalties of 18 Pa,C,S,A, Section 4094, relating to unswq,rn falsification / to authorities, December L..%...., 1998 ; <. i' \1,' ) .1 , it [<' f" .:-:', "'.........:~ ,,<:, l:b ~ ' EXHIBIT "A" .::1 "l"~ f/IIr,:"z' \ 'f. )'._'_."" '~.. ~.,_. . __ 4............ '_....."",' " ....~ '~'..','~. ',... , ".., , " ,~ \ ".":' , - ,..,j.,.,... ,....". NOW, THEREFORE, in consideration of the above recitals and the respective covenants, representations, warranties and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, the panies hereto agree as follows: I. SALE OF STOCK. At the closing (the "Closing") (as hereinafter defined in Paragraph 3), the Seller shall convey and deliver to the Buyer the appropriate stock eertificate(s) in the specified amount set forth in Paragraph 2 hereof, the same being free and clear of aU liens, encumbrances or claims of others whatsoever, duly endorsed in blank or accompanied by the appropriate instruments of transfer satisfactory to Buyer. 2. PURCHASE PRICE. The purchase price to be paid by Buyer to Seller for the she.res of Seller's common capital stock in the Corporation shall be $55,000.00, payable as follows: A. The sum Fifteen Thousand and no/100 ($15,000.00) Dolle.rs, shall be paid in three installments of Five Thousand and no/l 00 ($5,000.00) Dolle.rs each, payable on or before December 31,1996, December 31,1997 and December 31,1998, plus any interest accrued thereon as of the date of the payment at the rate of Eight and 25/100 (8.25%) percent. Seller agrees that if, on December 3 I, 1998, the entire $15,000.00 has not been paid in full, together with any unpaid interest thereon, Seller will renegotiate the terms tor the payment of the balance of this amount, said renegotiated terms however, to provide that all amounts due under this pe.ragraph, plus any accumulated interest thereon, must be fully paid on or before May I, 1999; and 2 -<'1'-.. ,'"t,::.:ir1ll)J. .J ",. :."'l"i~"'l~"'~- B, The balance of Fony Thousand and no/IOO ($40,000,00) Dollars, shall be paid in equal monthly installments ofTwelve Hundred Fifty-eight and 08/100 ($1,258,08) Dollars, said amount being applied lirst to interest at the rate ofEighl and 25/100 (8,25%) percent and the balance to lhe reduction of principal, beginning on June I. 1996 and ending on May I, 1999, J. CLOSING, The Closing of the transaction contemplated hereby shall take place at the offices of Harold S, Irwin, III, located at 36 South Pitt Street, Carlisle, Pennsylvania, or at such other location as the panics hereto agree, on or about May I, 1999, or at such other time after Buyer has paid the entire purchase price referred to above, plus any accumulated interest thereon, At Closing, any outstanding amount of principal of the purchase price and any accumulated interest thereon shall be paid by Buyer to Seller and Seller shall deliver to Buyer the appropriate stock cenificate(s) in accordance with Paragraphs I and 2 above, together with any funher instruments of assignment, conveyance or transfer, or any other documents covering the purchased stock or any other documents the Buyer may reasonably request to assure the full and effective assignment and transfer to him of the purchased stock; and the Buyer shall deliver to Seller any and all documents requested by Seller to effectuate the terms and conditions of this Agreement. 4. REPRESENTATIONS AND WARRANTIES. Seller represents and warrants as follows: a. Financial Statements. Seller has delivered to Buyer copies of the Balance Sheets and Income Statements for the Corporation, each of which represents a true and complete statement ofthe assets, liabilities, income and expenses incurred by the Corporation. Funher, Buyer has had the opponunity to talk with Seller and ask any and all 3 t.i..c'!. Jrt~,,'I!~,'." ~, ,'"..... . ~:t!::'.t, ~~.;...,~..,\'''~;; , questions pertinent 10 the financial condition of the Corporation prior to the date of the initial Closing and the Seller has produced for Buyer any and all documentation requested by Buyer with regard to the transaction contemplated hereby; b, Litillation. To the best of Seller's knowledge. there is no litigation or proceeding, administrative, ta.x audit or otherwise, pending against the Corporation of which Buyer is not aware; and c. Disclosure. No representation or warranty by the Seller in this Agreement, nor any other statement, certificate or financial statement furnished to or to be furnished to the Buyer pursuant hereto, contains or will contain any knowingly untrue statement ofa material fact, or omits or will omit to state a material fact necessary to make the statements contained therein not misleading. 5. NATURE AND SURVIVAL REPRESENTATIONS. All representations, warranties and agreements made by the Seller and Buyer in this Agreement, or pursuant hereto, shall survive the Closing and any investigation relating thereto at any time made by or on behalf of the Buyer. 6. INDEMNIFICATION. Seller agrees to and does hereby indemnify and hold Buyer harmless from any and all claims now or hereafter pending against the Corporation or each party individually as to the conduct of the business of the Corporation from the time of its - , . Al'If:jl.. 3~~fSl d' b I" d d all d' t bl inception to -tll'l F~'l~'lRt, mc u IRg, ut not mute to any an outstan mg accoun s paya e, any and all obligations of the Seller under a certain lease agreement dated November 19, 1993, whether known or unknown. Buyer agrees to and does hereby indemnify and hold Seller harmless 4 ..._~ tit'" ~.. t .' " ,; ;~i.., . :7:~,....'!.i1li~T~ ~'1<, ", . "','~~~. ,", rr.rJ\,'; -{-' .,.! l'..'.'-. from any and all claims now or hereafter pending against the Corporation or each party individually as to the conduct of the business of the Corporation from 11M drf.:-:!XI..(: tgf,.ff:.PQI including, but not limited to any and all outstanding accounts payable, any and all obligations of the Seller under a certain lease agreement dated November 19, 1993, whether known or unknown, 7. DEFAULT BY BUYER. In the event of a default by the Buyer of any of the terms of this agreement or the lease agreement referred to above or any future extensions thereof for the premises, and if such default continues for a period of thirty (30) days after notice from the Seller to cure the default, Buyer agrees that Seller shall have the right to immediately declare the entire balance due under this agreement to be due and payable, that Seller may declare this agreement to be terminated and that Seller shall have the right at such time to enter into and upon the premises at 420 Market Street, Lemoyne, Cumberland County, Pennsylvania and retake possession of the business and all assets of the business. 8. NOTICES. All notices and other communications that are required or permitted hereunder shall be sufficient if given in writing and delivered by registered or certified mail, return receipt requested, postage prepaid, to the address listed above for each respective party or to such other addressee or address as shall be mutually agreed upon in writing between the parties hereto. 9. ENTIRE UNDERSTANDING. This Agreement contains the entire understanding between the parties and shall not be amended or modified unless in writing signed by both parties hereto. 10. WAIVER. No waiver ofa breach ofany of the covenants of this Agreement shall be construed to be a waiver of any succeeding breach of the same or any other covenant. 5 _.. _4.' . ~. ..,~,..,O 'V.,,~ ~-; ..... ,... To ~''"-,"" ..' -~ -.';...".,..,.,. II. GOVERNING LAW. This Agreement shall be interpreted and enforced in accordance with the laws of the Commonwealth of Pennsylvania. 12. MISCELLANEOUS, The title assigned to each paragraph of this Agreement is to be given no legal significance or authority in interpreting this document. In case any term of this Agreement shall be held to be invalid, illegal or unenforceable in whole or in part. neither the invalidity of the remaining part of such term, nor the validity of any other term of this Agreement shall in any way be effected thereby. IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have hereunto set their hands and seals the day and year first above written. WITNESS: (SEAL) r" (, (SEAL) "Seller" 6 .' "Will)>:!: )>U1C-tJ>> lllm~;lll !::!:mlll~ IIICilllzCl ,":!:Ill~1II -0(1)"1- J>>-t-Jtlll .. N-t:lE "'l Or-- o NJ>>Z .. ""- W c= 1. . ~.. . ~ 1 \\, ~ _, '!\ II . '. .fi)' , 1..,1(.. '\'~J.. ~). ~1 ~, t ? , t ~ or, . ';1.;.' . ,':., " 111.( III .... n III !!l Cl - m .... 0 r- :z: z ::Ill r- ./ r- n 0 !i { m Z :z: 0 ~ r- ~ m 3: r- ~ 3: 3: CJ Z l,', . ..,~, "ll m ~ -I t ::Ill - ):II n 3: n ... m !i "ll !, III m " ~ , c ~ 0 z ... .... m Z '\ , Ul Ul , tJ -< '. ., '''''1 ~ ,",...t,. .-' .~ ~: r Z ..- ~~, -....P-,;;. - ....,~ . ~ i - , , Z f' '. n . "~: '\ i ..- I :"t: , r . I' j' V.V " , .: I' C ':1-;,>, i 'f .~. ~ ,f :1, h:~ ",',,:,;:'. . ..I {.},~ , , , , '\ j i I .J '(:',,;, I ~ ~:A .'. , ~. i ' ~ .~~~t' . ";,,,,:~,,.).. , , ,'t) '<' , ': '1j. 5, On or about November 17, 1998, plaintiff filed a praecipe for transfer of judgment to the Court of Common Pleas of Cumberland County, Pennsylvania, seeking transfer of Its Philadelphia judgment for $3,477,11, plus post judgment interest of $70,80, less a payment credit of $100,00, fDr a total amount of $3,447,91, 6, On or about November 23, 1998, the Cumberland County Prothonotary mailed a notice of judgment to defendant at an address in Lemoyne, Pennsylvania. 7. Subsequently, the Sheriff of Cumberland County, Pennsylvania has levied upon certain personal property located at 420 Market Street, Lemoyne, Cumberland County, Pennsylvania 17043. 8. Defendant believes that the individual served with the municipal court complaint, judgment, praecipe for transfer of judgment, notice of judgment and sheriffs levy was Giuseppe Russo, purchaser by installment sales of the business known as La Fontana Restaurant, 420 Market Street, Lemoyne, Pennsylvania 17043, and not the owner, officer or agent of defendant La Fontana, Inc, 9, No owner, officer or agent of La Fontana, Inc" the defendant in this action, has ever been served with any of these court documents or official notices and defendant, La Fontana, Inc., has therefor never had notice of this pending action nor has it had the opportunity to defend this action, 10, On April 17, 1996, Giuseppe Russo and Vincenzo Marchiano entered into a stock purchase agreement whereby Russo agreed to purchase all of the outstanding shares of issued stock in La Fontana, Inc, and Marchiano, owner thereof, agreed to sell such stock to Russo according to the terms of the agreement, a copy of which is attached hereto and made a part hereof as Exhibit "A" ,. 11, On May 6, 1996, counsel for the corporation, defendant La Fontana, Inc., notified all other creditors and suppliers of defendant as of that date that effective May 1, 1996. the ownership of La Fontana Restaurant was transferred to Giuseppe Russo, who would continue to operate the business at the Lemoyne location and would thereafter be responsible for all accounts payable, The letter stated that all further liability of Vincenzo Mazzamuto and/or Vincenzo Marchiano, former owners, operators and officers of the company, would be discontinued as of April 30, 1996. In addition, the letter directed such creditors to notify counsel immediately regarding any outstanding account for La Fontana, Inc, as of April 30, 1996. 12, Plaintiff was not sent a similar letter since plaintiffs advertising services are contractual on an annual basis and the then current contract would expire at some date after the business was taken over by Russo and would have to be renegotiated between plaintiff and Russo for subsequent advertising years. 13. Plaintiff did not renegotiate a contract for the next advertising year with defendant corporation, nor with any of its officers. stockholders or agents. 14, Defendant believes and therefor avers that the present claim of plaintiff is based upon a renegotiated contract with Giuseppe Russo for the next advertising year, after the takeover ofllie business by Russo. 15. Russo had no authority to enter into any contract with plaintiff which would bind the defendant and therefor defendant avers that all sums due on the present claim of plaintiff covering the period of October 25, 1996 and subsequent thereto are owed to plaintiff by Russo and not by defendant. 16. At the time of the stock purchase agreement between Marchiano and Russo, Russo assumed responsibility of all accounts payable of defendant as of May 1, 1996 and agreed to indemnify and hold defendant harmless from all liability therefor, 17. If plaintiff is owed any sum of money for advertising services subsequent to May 1, 1996, Russo, who is not a party to this litigation at this time, is fully responsible therefor, either as the result of executing a renegotiated contract with plaintiff or based upon his assumption of all corporate liabilities as of May 1, 1996, 18. Defendant believes and therefor avers that plaintiff has never contacted defendant regarding any unpaid amount under any contract with plaintiff for advertising services or otherwise and that all contact from plaintiff regarding this matter has been between plaintiff and Russo. 19. Defendant has a meritorious defense to this action. as outlined above, and has never been served with any of the legal documents pertaining to this action, 20. Under the circumstances, plaintiffs judgrnent, taken with no notice to defendant and when defendant has a meritorious defense in that plaintiff has no contract with defendant, but with another individual in control of the business who has contractually agreedlo assume responsibility for all accounts payable of defendant after May 1, 1996. unfairly prejudiced defendant's ability to defend this matter and should not be countenanced by this Court, 21. Under the circumstances, plaintiffs present effort to execute and levy on the property owned by defendant in order to satisfy a debt owed by another individual, Giuseppe Russo with whom plaintiff did contract, is improper and all collection actions VERIFICATION The foregoing averments of fact are based upon information which has been gathered by my counsel in the preparation of this lawsuit. The language of the document is the language of my counsel and not my own. I have read the averments and to the extent that they are based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief, To the exlent that the content of the averments is that of counsel, I have relied upon counsel in making this verification, I understand that false statements made herein are subject to the penalties of 18 Pa.C.S.A. Section 4094, relating to unsworn falsification to authorities. December LJ..., 1998 - EXHIBIT "A" . . . ~ :. ~.;. Iii!! "'......t ,'';. . . . ... ....'~ .. "'i.~ .it.'~ )10.. . ..;~ ,....... ~" . . '}~'"' ',." ,.. \'- "', NOW. THEREFORE. in consideration of the above recitals and the respective covenants, representations, warranties and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows: I. SALE OF STOCK. At the closing (the "Closing") (as hereinafter defined in Paragraph 3), the Seller shall convey and deliver to the Buyer the appropriate stock certificate(s) in the specified amount set forth in Paragraph 2 hereof. the same being free and clear of all liens, encumbrances or claims of others whatsoever, duly endorsed in blank or accompanied by the appropriate instruments of transfer satisfactory to Buyer. 2. PURCHASE PRICE. The purchase price to be paid by Buyer to Seller for the shares ofSeUer's common capital stock in the Corporation shall be $55,000.00, payable as follows: A The sum Fifteen Thousand and nol100 ($15,000.00) Dollars, shall be paid in three installments of Five Thousand and nol100 ($5,000.00) Dollars each, payable on or before December 31, 1996, December 31,1997 and December 31, 1998, plus any interest accrued thereon as of the date of the payment at the rate of Eight and 25/100 (8.25%) percent. Seller agrees that if, on December 31, 1998, the entire $15,000.00 has not been paid in full, together with any unpaid interest thereon, Seller will renegotiate the terms for the payment of the balance of this amount, said renegotiated terms however, to provide that all amounts due under this paragraph, plus any accumulated interest thereon, must be fully paid on or before May I, 1999; and 2 ..~. '.. ~- , "..'~. .....~, ".. ..~~;. , B. The balancc of Forty Thousand and nollOO ($40,000.00) Dollars, shaI1 be paid in equal monthly installments of Twelve Hundred Fifty-cight and 081100 (SI,258.08) Dollars, said amount being 'applied first to interest at the rate of Eight and 25/100 (8.25%) percent and the balance to the reduction of principal, beginning on June I, 1996 and ending on May I, 1999, 3. CLOSING. The Closing oflhe transaction contemplated hereby shall take place at the offices of Harold S. Irwin, III, located at 36 South Pitt Street, Carlisle, Pennsylvania, or at such other location as the parties hereto agree, on or about May I. 1999, or at such other time after Buyer has paid the entire purchase pricc referred to above, plus any accumulated interest thereon. At Closing, any outstanding amount of principal of the purchase price and any accumulated interest thereon shall be paid by Buyer to Seller and SeDer shall deliver to Buyer the appropriate stock certificate(s) in accordance with Paragraphs I and 2 above, together with any further instruments of assignment, conveyance or transfer, or any other documents covering the purchased stock or any other documents the Buyer may reasonably request to assure the full and effective assignment and transfer to him of the purchased stock; and the Buyer shall deliver to Seller any and all documents requested by Seller to effectuate the terms and conditions of this Agreement. 4. REPRESENTATIONS AND WARRANTIES. SeDer represents and warrants as follows: a. Financial Statements. Seller has delivered to Buyer copies of the Balance Sheets and Income Statements for the Corporation, each of which represents a true and complete statement of the assets, liabilities, income and expenses incurred by the Corporation. Further, Buyer has had the opportunity to talk with Seller and ask any and all 3 "M"",,~, ,";"'~:f,A.."'t~.:,,. .... .- questions pertinent to the financial condition of the Corporation prior to thc datc of the initial Closing and the Seller has produced for Buyer any and all documentation requested by Buyer with regard to thc transaction contemplated hereby; b. Litillation To the best of Seller's knowledge, there is no litigation or proceeding, administrative, tax audit or otherwise, pending against the Corporation of which Buyer is not aware; and c. Disclosure. No representation or warranty by the SeDer in this Agreement, nor any other statement, certificate or financial statement furnished to or to be fumished to the Buyer pursuant hereto, contains or will contain any knowingly untrue statement of a material fact, or omits or will omit to state a material fact necessary to make the statements contained therein not misleading. S. NATURE AND SURVIVAL REPRESENTATIONS. AU representations, warranties and agreements made by the Seller and Buyer in this Agreement, or pursuant hereto, shall survive the Closing and any investigation relating thereto at any time made by or on behalf of the Buyer. .4 6. INDEMNIFICATION. Seller agrees to and does hereby indemnify and hold Buyer harmless from any and all claims now or hereafter pending against the Corporation or each party individually as to the conduct of the business of the Corporation from the time of its . . A~t..'3c:: -'?fSl-d. b I" d d all din t abl mcepllon to ~\'t Fr9itAt, mc u mg, ut not lIDlte to any an outstan g accoun spay e, any and all obligations of the Seller under a certain lease agreement dated November 19, 1993, whether known or unknown. Buyer agrees to and does hereby indemnify and hold Seller harmless 4 ~~.~ '., '~!_1~"'~ .. I' ,." , from any and all claims now or hereafter pending against the Corporation or each party individually as to the conduct of the business of the Corporation from till ~a~-:!X~(: fgr....~~nl including, but not limited to any and all outstanding accounts payable, any and all obligations of the Seller under a certain lease agreement dated November 19, 1993, whether known or unknown. 7. DEFAULT BY BUYER. In the event of a default by the Buyer of any of the terms of this agreement or the lease agreement referred to above or any future extensions thereof for the premises, and if such default continues for a period of thirty (30) days after notice from the Seller to cure the default, Buyer agrees that Seller shall have the right to immediately declare the entire balance due under this agreement to be due and payable, that Seller may declare this agreement to be terminated and that SeDer shall have the right at such time to enter into and upon the premises at 420 Market Street, Lemoyne, Cumberland County, Pennsylvania and retake possession of the business and all assets of the business. 8. NOTICES. AU notices and other communications that are required or permitted hereunder shall be sufficient if given in writing and delivered by registered or certified mail, return receipt requested, postage prepaid, to the address listed above for each respective party or to such other addressee or address as shall be mutually agreed upon in writing between the parties hereto. " .~ 9. ! ENTIRE UNDERSTANDING. This Agreement contains the entire understanding between the parties and shall not be amended or modified unless in writing signed by both parties hereto. 10. WAIVER. No waiver ofa breach of any of the covenants of this Agreement shall be construed to be a waiver of any succeeding breach of the same or any other covenant. 5 ~'..~ . ""',. '. ' ~" . . - , , . ~ . . . . . F" j...,;. :;-t BI!LL ATLANTIC. PI!NNSYLVANIA, INC I IN THI! COURT OF COMMON PLeAS OF Plaintiff I CUMBI!RLAND COUNTY, PI!NN8YLVANIA I CIVIL ACTION. LAW v. LA FONTANA, INC., Defendant I I NO. 9S . 6663 CIVIL TI!RM : IN ASSUMPSIT :,'.' ,') . ~1 ! j1l . ~ " I .'.J J, (~ ) '.'" :;: ; '/n , '" '< ( , ....) _..J J , I> PETITION TO OPE~ AND STRIKE JUDGM~N~~. .' '.) NOW comes the defendant, by its attorney, Harold S. Irwin, III, Esquire/ancF presents this petition to open and strike judgment, representing as follows: 1. Plaintiff is Bell Atlantic - Pennsylvania, Inc., a Pennsylvania corporation with offices located at 20th Floor, 1717 Arch Street, Philadelphia, Pennsylvania 19103. 2. Defendant is La Fontana, Inc., a Pennsylvania corporation located in Carlisle, Cumberland County, Pennsylvania 17013. 3. On or aBout June 2, 1998, plaintiff filed a complaint against defendant in the Philadelphia Municipal Court, 34 South 11th Street, Philadelphia, Pennsylvania, alleging that defendant had failed to pay plaintiff for the costs of certain yellow page advertising published by plaintiff on or after October 25, 1996. 4. Defendant believes and therefor avers that plaintiff obtained a judgment on its complaint by order of the Philadelphia Municipal Court on or about July 13, 1998. 5. On or about November 17, 1998, plaintiff filed a praecipe for transfer of judgment to the Court of Common Pleas of Cumberland County, Pennsylvania, seeking transfer of Its Philadelphia judgment for $3,477.11. plus post judgment intorest of $70.80, less a payment credit of $100.00, for a total amount of $3,447.91. 6. On or about November 23. 1998, the Cumberland County Prothonotary mailed a notice of judgment to defendant at an address in Lemoyne, Pennsylvania. 7. Subsequently, the Sheriff of Cumberland County, Pennsylvania has levied upon certain personal property located at 420 Market Street, Lemoyne, Cumberland County, Pennsylvania 17043. 8. Defendant believes that the individual served with the municipal court complaint, judgment, praecipe for transfer of judgment, notice of judgment and sheriffs levy was Giuseppe Russo. purchaser by installment sales of the business known as La Fontana Restaurant, 420 Market Street. Lemoyne. Pennsylvania 17043, and not the owner, officer or agent of defendant La Fontana, Inc. 9. No owner. officer or agent of La Fontana, Inc.. the defendant in this action, has ever been served with any of these court documents or official notices and defendant, La Fontana, Inc., has therefor never had notice of this pending action nor has it had the opportunity to defend this action. 10. On April 17. 1996, Giuseppe Russo and Vincenzo Marchiano entered into a stock purchase agreement whereby Russo agreed to purchase all of the outstanding shares of issued stock in La Fontana, Inc. and Marchiano, owner thereof, agreed to sell such stock to Russo according to the terms of the agreement. a copy of which is attached hereto and made a part hereof as Exhibit "A" 11. On May 6, 1996, counsel for the corporation, defendant La Fontana, Inc., notified all other creditors and suppliers of defendant as of that date that effective May 1, 1996, the ownership of La Fontana Restaurant was transferred to Giuseppe Russo, who would continue to operate the business at the Lemoyne location and would thereafter be responsible for all accounts payable. The letter stated that all further liability of Vincenzo Mazzamuto andlor Vincenzo Marchiano, former owners, operators and officers of the company, would be discontinued as of April 30, 1996. In addition, the letter directed such creditors to notify counsel immediately regarding any outstanding account for La Fontana, Jnc. as of April 30, 1996. 12. Plaintiff was not sent a similar letter since plaintiffs advertising services are contractual on an annual basis and the then current contract would expire at some date after the business was taken over by Russo and would have to be renegotiated between plaintiff and Russo for subsequent advertising years. 13. Plaintiff did not renegotiate a contract for the next advertising year with defendant corporation, nor with any of its officers, stockholders or agents. 14. Defendant believes and therefor avers that the present claim of plaintiff is based upon a renegotiated contract with Giuseppe Russo for the next advertising year, after the takeover ofllie business by Russo. 15. Russo had no authority to enter into any contract with plaintiff which would bind the defendant and therefor defendant avers that all sums due on the present claim of plaintiff covering the period of October 25, 1996 and subsequent thereto are owed to plaintiff by Russo and not by defendant. , - 16. At the time of the stock purchase agreement between Marchiano and Russo, Russo assumed responsibility of all accounts payable of defendant as of May 1, 1996 and agreed to Indemnify and hold defendant harmless from all liability therefor. 17. If plaintiff is owed any sum of money for advertising services subsequent to May 1, 1996, Russo, who is not a party to this litigation at this time, is fully responsible therefor, either as the result of executing a renegotiated contract with plaintiff or based upon his assumption of all corporate liabilities as of May 1, 1996. 18. Defendant believes and therefor avers that plaintiff has never contacted defendant regarding any unpaid amount under any contract with plaintiff for advertising services or otherwise and that all contact from plaintiff regarding this matter has been between plaintiff and Russo. 19. Defendant has a meritorious defense to this action, as outlined above, and has never been served with any of the legal documents pertaining to this action. 20. Under the circumstances, plaintiffs judgment, taken with no notice to defendant and when defendant has a meritorious defense in that plaintiff has no contract with defendant, but with another individual in control of the business who has contractually agreedto assume responsibility for all accounts payable of defendant after May 1, 1996, unfairly prejudiced defendant's ability to defend this matter and should not be countenanced by this Court. 21. Under the circumstances, plaintiffs present effort to execute and levy on the property owned by defendant in order to satisfy a debt owed by another individual, Giuseppe Russo with whom plaintiff did contract, is improper and all collection actions "- EXHIBIT "A" .. . , "i.~. ~~.: 7" 1I!7,e'1.,19f6 THIS AGREEMENT, made and entered into this ~ day of O.,it'...L. , If;J, by and between GIUSEPPE RUSSO, an adult individual with a place of business at 420 Market Street, Lemoyne, Cumberland County, Pennsylvania (hereinafter referred to as "Buyer"), and VINCENZO MARCHIANO, an adult individual residing at 52 East Penn Street, Carlisle, Cumberland County, Pennsylvania (hereinafter referred to as "Seller"). WITNESSETH: WHEREAS. Seller is the owner ofall of the outstanding issued stock in a Pennsylvania business corporation known as La Fontana, Inc. ("Corporation"); and ,,!HEREAS. Buyer is desirous of purchasing all of the outstanding shares of the Corporation's common capital stock now owned by Seller upon the tenns and conditions contained herein and Selig is desirous of conveying to Buyer the same; and WHEREAS, Seller and Buyer are desirous of memorializing their understanding and reducing the same to writing upon the terms and conditions hereinafter set forth. ~". .,..' . ~~~~).:~l'~~'''''' I ,~ ~.'r f.~ NOW, THEREFORE, in consideration of the above recitals and the respective covenants, represent&tions, warrallJies and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows: I. SALE OF STOCK. Al the closing (the "Closing") (as hereinafter defined in Paragraph 3), the Seller shall convey and deliver to the Buyer the appropriate stock certificate(s) in the specified amount set forth in Paragraph 2 hereof. the same being free and clear of all liens, encumbrances or claims of others whatsoever, duly endorsed in blank or accompanied by the appropriate instruments of transfer satisfactory to Buyer. 2. PURCHASE PRICE. The purchase price to be paid by Buyer to SeDer for the shares of Seller's common capital stock in the Corporation shall be S55,ooo.OO, payable as follows: A. The sum Fifteen Thousand and nollOO ($15,000.00) Dollars, shall be paid in three installments of Five Thousand and nol100 ($5,000.00) Dollars each, payable on or before December 31, 1996, December 31, 1997 and December 31, 1998, plus any interest accrued thereon as of the date of the payment at the rate of Eight and 25/100 (8.25%) percent. Seller agrees that if, on December 31, 1998, the entire $15,000.00 has not been paid in full, together with any unpaid interest thereon, Seller will renegotiate the terms for the payment of the balance of this amount, said renegotiated terms however, to provide that all amounts due under this paragraph, plus any accumulated interest thereon, must be fully paid on or before May I, 1999; and 2 ...'... . ,. , ~ "..... , ...,,'......~ ~. B. The balance of Forty Thousand and nollOO ($40,000,00) Dollars, shaIJ be paid in equal monthly installments of Twelve Hundred Fifty-cight and 081100 (SI,258.08) Dollars, said amount being 'applied first to interest at the rate of Eight and 25/100 (8.25%) percent and the balance to the reduction of principal, beginning on June I, 1996 and ending on May I, 1999. 3. CLOSING, The Closing of the transaction contemplaled hereby shaD take place at the offices of Harold S. Irwin, III, located at 36 South Pitt Street, Carlisle, Pennsylvania, or at such other location as the parties hereto agree, on or about May I, 1999, or at such other time after Buyer has paid the entire purchase pricc rcfcrred to abovc, plus any accumulated interest thereon. At Closing, any outstanding amount of principal ofthc purchase price and any accumulated interest thereon shall be paid by Buyer to Seller and SeDer shall deliver to Buyer the appropriate stock certificate(s) in accordance with Paragraphs I and 2 above, together with any further instruments of assignment, conveyance or transfer, or any other documents covering the purchased stock or any other documents the Buyer may reasonably request to assure the full and effective assignment and transfer to him ofthe purchased stock; and the Buyer shall deliver to Seller any and all documents requested by Seller to effectuate the terms and conditions of this Agreement. 4. REPRESENTATIONS AND WARRANTIES. Seller represents and warrants as follows: a. Financial Statements. Seller has delivered to Buyer copies of the Balance Sheets and Income Statements for the Corporation, each of which represents a true and complete statement of the assets, liabilities, income and expenses incurred by the Corporation. Further, Buyer has had the opportunity to talk with Seller and ask any and all 3 'M t.uiI~ ".""..~i.;: .'. . questions pertinent to the financial condition of the Corporation prior to the date of the initial Closing and the Seller has produced for Buyer any and all documentation requested by Buyer with regard to the transaction contemplated hereby; b. Litillation, To the best of Seller's knowledge, there is no litigation or proceeding, administrative, tax audit or otherwise, pending against the Corporation of which Buyer is not aware; and c. Disclosure. No representation or warranty by the Seller in this Agreement, nor any other statement, certificate or financial statement furnished to or to be furnished to the Buyer pursuant hereto, contains or will contain any knowingly untrue statement of a material fact, or omits or will omit to state a material fact necessary to make the statements contained therein not misleading. 5. NATURE AND SURVIVAL REPRESENTATIONS. AU representations, warranties and agreements made by the Seller and Buyer in this Agreement, or pursuant hereto, shall survive the Closing and any investigation relating thereto at any time made by or on behalf of the Buyer, ,~ 6. INDEMNIDCA TION. Seller agrees to and does hereby indemnify and hold Buyer harmless from any and all claims now or hereafter pending against the Corporation or each party individually as to the conduct of the business of the Corporation from the time of its .- inception to ~-;P';-~;4,r:~luding, but not limited to any and all outstanding accounts payable, any and all obligations of the Seller under a certain lease agreement dated November 19,1993, whether known or unknown. Buyer agrees to and does hereby indemnify and hold Seller harmless 4 " tf..... "--" l,lr' -,. . . '. .....,... . I'".. ~ if .. i ' " . from any and all claims now or hereafter pending against the Corporation or each party individually as to the conduct of the business of the Corporation from iii. d(.:'::X..(: ,f_~..n, including, but not limited to any and all outstanding accounts payable, any and all obligations of the Seller under a certain lease agreement dated November 19, 1993, whether known or unknown. 7. DEFAULT BY BUYER. In the event of a default by the Buyer of any of the terms of this agreement or the lease agreement referred to above or any future extensions thereof for the premises, and if such default continues for a period of thirty (30) days after notice from the Seller to cure the default, Buyer agrees that Seller shall have the right to immediately declare the entire balance due under this agreement to be due and payable, that Seller may declare this agrccmentto be terminated and that SeDer shall have the right at such time to enter into and upon the premises at 420 Market Street, Lemoyne, Cumberland County, Pennsylvania and retake possession of the business and all assets of the business. 8. NOTICES. All notices and other communications that are required or permitted hereunder shall be sufficient if given in writing and delivered by registered or certified mail, return receipt requested, postage prepaid, to the address listed above for each respective party or to such other addressee or address as shall be mutually agreed upon in writing between the parties hereto. 9. ENTIRE UNDERSTANDING. This Agreement contains the entire understanding between the parties and shall not be amended or modified unless in writing signed by both parties hereto. 10. WAIVER. No waiver ofa breach of any of the covenants of this Agreement shall be construed to be a waiver of any succeeding breach of the same or any other covenant. 5 'i ." t. "..~ .....- ..... ... ..- ~ .. 11. ~9VERNING LAW , This Agreemcnt shall be intcrprcted and cnforced in accordance with thc laws of the Commonwealth of Pennsylvania. 12. MISCELLANEOUS. The title assigned to each paragraph of this Agreement is to be given no legal significance or authority in interpreting this document. In case any term of this Agreement shall be held to be invalid, illegal or unenforceable in whole or in part, neither the invalidity ofthe remaining part of such term, nor the validity of any other term of this Agreement shall in any way be effected thereby. IN WITNESS WHEREOF. the parties hereto, intending to be IcgaJly bound, have hereunto set their hands and seals the day and year first above written. WITNESS: (SEAL) , , (SEAL) "Seller" 6 HAROLD S. IRWIN, III, ESQUIRE AnORNEY ID NO. 29920 35 EAST HIOH STREET CARLISLE PA 17013 (717) 243.8090 AnORNEY FOR DEFENDANT PRAECIPE LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next: _ Pre-trial Argument Court X ArglJment Court BELL ATLANTIC. PENNSYLVANIA, INC : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : CtVIL ACTION - LAW v. : NO. 98.6663 CIVIL TERM : IN ASSUMPSIT LA FONTANA, INC., Defendant 1. Matter to be argued: Defendant's Motion to Strike Judgment. 2. Counsel who will argue the case: A. For plaintiff: Harold S. Irwin, III, E;.squire B. For defendants: Ronald Amato, Esquire 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: March 3,1999. HAROLD S. IRWIN, I Attorney for defendan , Markot St. Lomoyno PA. Admittod that Dolendant was operating a business nt that locntion. Defendant was properly served with the complaint. 10. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averment and it IS therefore denied and strict proof thereof is demanded at time of trial, if relevant. The agreement hos no offect on the balance due Irom defendant to plaintiff and has no effect on the judgment obtained. 11. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as 10 the truth of the averment and it is therefore denied and strict proof thereof is demanded at time of trial, if relevant. 12. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averment and it is therefore denied and strict proof thereof is demanded at time of trial, if relevant. 13. Plaintiff is only seeking those funds do for which defendant agreed to pay for a contract for advertising signed on December 16. 1995 by Vincenzo Marchiano. The advertising was published from May 1995 through May 1996. Defendant failed to pay from October 25, 1995 through May 22, 1996. A true and correct copy of the contract is attached hereto, made a part hereof, and marked Exhibit "B". 14. Denied. Plaintiff's paragraph 13 above is included by reference. 15. Plaintiff is only seeking those funds do for which defendant agreed to pay for a contract for advertising signed on December 16, 1995 by Vincenzo Marchiano. The advertising was published from May 1995 through May 1996. Defendant failed to pay from October 25, 1995 through May 22, 1996. Plaintiff is not seeking any funds for contracts signed by Russo. 16. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averment and it is therefore denied and strict proof thereof is demanded at time of trial. if relevant. 17. Denied that Russo renegotiated a contract with Plaintiff. The corporate defendant entered into the contract and failed to pay plaintiff. 18. Donied. Plaintiff forwarded invoices to defendant lit the placo of buslnoss. OClfendanl paid some, but not all, of the invoices. Plaintiff filed suit against Dofendor1l, sorved an agent of defendant at defendant's place of business and obtained a default judgmont. 19. Denied. Defendant has foiled to allach a verified answer to the palition and has failed to show 0 meritorious defense. Defendant may hove 0 Couse of action againsl a third party for indemnification but that does not relieve the defendant of the obligation for which the judgment was obtained. 20. Denied. Defendant was aware of the judgment and the account and foiled to toke steps to see that the account was timely paid. Defendant was served at the regular place of business and failed to plead or otherwise appear to defendant against plaintiff's complaint. 21. Denied. This averment constitutes a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Without waiving the foregoing and to the extent a response may be required, Plaintiff specifically denies this averment. WHEREFORE, Plaintiff requests Your Honorable Court deny Defendant's petition. AMATO AND ASSOCIATES, P.C. By: /)C Ronald Amato Attorney 1.0. No. 32323 Attorneys for Plaintiff P.O. Box 1111 Allentown, PA 18105 (610) 866-0400 Ronald Amato, Esquire Amato and Associates, P.C. P . 0 , Box 1 111 Allentown, PA 18105 (610) 866-0400 Attorney ID #32323 Attorneys for Plaintiff BELL ATLANTIC - PENNSYLVANIA, INC. PHILADELPHIA MUNICIPAL COURT Plaintiff vs. SC98-6-8-0853 LA FONTANA, INC. Defendant AFFIDAVIT OF SERVICE Pursuant to Philadelphia Municipal Court Rule of Civil Procedure 112(c), I, Ronald Amato, of Amato and Associates, P.C., attorneys for Plaintiff, BELL ATLANTIC - PENNSYLVANIA, INC. , certify that I served the Statement of Claim with attachments in the above-captioned matter by regular and certified mail return receipt requested on the defendant, LA FONTANA, INC. , on June 17, 1998 at the following address: 420 Market Street LEMOYNE PA 17043 The original return receipt for certified mail is attached hereto and was executed on June 19, 1998. -'~ t.'::', f' I This is an unsworn document subject to the penalties of 18 purdons Statutes 4904 relating to unsworn Falsification to Authorities. . C-- Ronald Amato Attorney for Plaintiff EXHIBIT .~ ~ ^ t; fl- ~ .... DIRECTORY ADVERTISING AGREEMEN' . 9511-F 141941 rz:uow PAG.CS I~J BILLIIIG ~W,M,\RY paqe 1 0 f 1 Date. 12/08/1995 Customer 10. 109438382 Sales District: Hdrrisburg Accoune Telephone Number: (717)730-8661 05/96 Llsting Ndme. Ld Foneand. Ine Addr: 420 Mdrket St Lemoyne. 17043-0000 Contact Name: Vinnie Marchiano-Owner DEe 2. 0 1995 DIRECTORY SUMMARY ----------------- allling Telephone Number: (717)730-8661 Pub. Moneh Dir Cede Directory Previous Issue Next. Issue ---------- -------- 05/96 422P HARRISaURG 'IP s 0.00 s 432.00 . DIRECTORY SUMMARY ----------------- Monthly Subtotal S Monthly Grand Total S 432.00 432.00 ------------------------------------------------------------------------------ The undersigned Advertiser hereby applies for the ad'le~tising described above and for all subsequent issues until this agreement is terminated in the manner described on the reverse side. The Advertiser agrees to pay Bell Atlantic ("Publisher") or ies affiliate the amount shown in the NE~1 !10NTHLY TOTAL seaeed herein S 432.00 This agreement is subj ect to the TERMS AND CONDITIO~tS see forth on the reverse side. Advertiser acknowledges that he/she has read a~d agrees to such TEffi1S AND CONDITIONS. PARTICULARLY PARAGRAPH 6 ~IHICH LIMI'!:2 ?IJEL!2H::?' S LI.".BILITY FOR ERRORS IN OR OMISSIONS OF ADVERTISING. ---------------------------------------------------------------------------- ~ ~ ~ EXHIBIT LA FONTA.>'IA INC VINNIE MARCHIANO 420 MARKET STREET ~E PA 17043 Authorized : ( , Signaeure ~,{t~ 16 ,i/tO:m La Fontana. Inc (717)730-8661 WWID: 109438382 --L Rep: Finch. G. ~3~;.-44,.c Date:~/~/~"'" 109438382 717 7308661 971 422P HARRISBURG YP Version 0 31344 852 05/96 PG 1 109438382 Vinnie Marchiano-Owncr La Fontana. tnc 420 Market St Lemoyne, (717)730-8661 Item ID AIC CALI UDAC HOO BLS pp I REV RATE TEXT ................................................................................ NEWI N DQC 746500 270.00 Pizza NEWI AIIL 746500 0.00 Pizza NEWI N COt1 746500 162.00 Pizza NEWI ACOt1 7M500 0.00 Pizza 001 Ot1'1'I SIlL 746500 0.00 Pizza m:wz SIlL 760500 0.00 Restaurants SIGNATURE DATE: NEW MONTHLY TOTAL: 432.00 MEMO NOTES DIRECTORY CLOSE DATE 03/04/96 BELL ATLANTIC LA FONTANA INC VINNIE MARCHIANO 420 MARKET STREET LEMOYNE PA 17043 NET CHANGE: 432.00 PRINTED ON: 12/08/1995 109438382 717 7308661 971 422P HARRISBURG 'iP Voraion 0 31344 e~2 PC 1 Vinnie Marchiano-Owner , I La Fontana, Inc 420 Marko~ St Lemoyne I (717)730-8661 ..--' Item 10 A/C CALI UDAC HOG 05/96 109438382 -. , .~. -- ..' \.'.....-- -" - BLS PP I REV RATE TEXT ................................................................................ NEWI N DOC 746500 NEWI ARL 746500 NEWI N COil 746500 NEWI ACOU 746500 001 OUTI SRL 746500 NEWI SRL 760500 SIGNATURE DATE: 12121/95 MEMO =::1:1:= DIRECTORY CLOSE DATE 03/04/96 BELL ATLANTIC LA FONTANA INC VINNIE MARCHIANO 420 MARKET STREET LEMOYNB PA 17043 NBT CHANGE: 432.00 270.00 Pizza 0.00 Pizza 162.00 Pizza 0.00 Pizza 0.00 Pizza 0.00 Restaurants NBW MONTHLY TOTAL: 432.00 NOTES ===== PRINTBD ON: 12/21/1995 ., -..\.. A1DOell -. , "....,'11 ul ... DOC 'I/'fCH "W . 10 2..1 11IO.1it51S" \J'a vontal1q Resta rant 11 P/~ . -... "~~\\1~ I ~~a & ':I'" . STROMBOU . suas . ITAUAN OINNERS . FAMILY STYLE DINING . FRESH & HOT ASSORTED TOPPINGS . i, CUSTOMER PROOF TO BE FILLED IN BY CUSTOMER ONL Y Thls Is to cartlty fhet we are authorized to sell the prOduct or service Sl')own In Ihls copy and hove the right to use the trodemark. trade neme. photograph of 0 person or nema or cny lIlustrotlcn used therein. FOR THE FOLLOWING DIRECTORIES: UNDER THE FOLLOWING HEADING: FINAL LA YOU! & P APPROVED BY: '.. Typlf style. that <:q)eaon!hls Pl'OOl' . repreMnlclionol 0' ft\o$9 Ihat wiU ~P9a' In lhe pmted dtectOty, !llii Iff. : ~{/'l./lJ X- fi/I I.. ,11 L/LF; /If I?/fLiJw.n <:... /!/l/"/VC"~{- y/' .~ ;OtZZ/T- ~ X II {.;v./l 7'-1<'/1. ~ '. .I .' .l"0l"'- ... COl." ,..,.. '..... PIZZA .I. . 8:. lA' ,tmt6 lito ;r..C )..j\ . ,,'<' iontal14 '. . Real. raDt . 'llIOMIOlI.W . . . ~ - 'fAllolHlIHB5.INoIlTlIlIllHG . l>/~ . -., " . ~ .lIIlItlICI.uDIlIllCl'PlGS . ~4 . . ....,..Mr_ '. . t. . ...-- .~:~~!-:~~ '& 730.8661 · .. "'t.,~,,,,"~ ~ DftU'm,,, 01........"......",. 6 ~..................~ ~JA.r\. oc-.;Z AlJl.{r'ly,r,j2 CUSTOMER PROOF TO BE FILLED IN BY CUSTOMER ONL Y Il'/J Is to cllrt1fy!hat we ae ClJ1hOrlZed to sellllle prodUct 01 seNlce shown h 1hIs COIP'( and have Ihe right to use Ille lrodemcrlc. !rode n:lm8. photogrcph ot a person 01 nome Ol any lIIuslrat10n used therein. FOR THE FOllOWING DIRECTORIES: fJr2. 'Z,.,.... r!.~v7M. h II /','0/ ; ;I/?~~/J.C'iC? '-;/' - UNDER THE FOllOWING HEADING: -<:::.. < /'f??/f- K J/v..471-i''C./- --' , ~ ~ HAIIOLD I. IIIWlH, III, EaQUIRIl AlTOIIHIY 10 NO. 2"20 31 IlIIT HIOH ITRIlIlT CULlILIl I'A 17013 17171 243""0 An'OIINaV POll D....NDANT - BELL ATLANTIC. PENNSYLVANIA, INC : IN THE COURT OF COMMON PLEAS OF Plaintl" : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW v. LA FONTANA, INC., Defendant : NO. 98 . 6663 CIVIL TERM : IN ASSUMPSIT PRAECIPE TO THE PROTHONOTARY: The parties have resolved this case, whereby the plaintiff has agreed to accept a payment of $1,900.00 from defendant, payable on or before August 17, 1999, in full satisfaction of all claims of the plaintiff against the defendant corporation. While the judgment will remain as a lien upon the defendant at this time, plaintiff has agreed not to execute on this judgment unless full payment has not been made by August 31, 1999. Accordingly, please withdraw the defendant's motion to strike judgment in this case and advise the Court that the hearing on this motion, scheduled for March 3, 1999, may be canceled. SOCIATES, P.C. BY: R ALD AMATO Attorney for plaintiff 4'W a FICES OF HAROLD S. IRWIN, III BY: HAROLD S. IRWIN, III Attorney for defenda t :,:; ?n.~ ": nn7e;:-I-Coh7-l-'T' ~~L~~n MP' UI.M.AT ~ohn:C"'n ~e;:-C"'7-nA~ {:, :') i,~ ,. R. ThonwH KJ ifH', Stl.., if I f 1,0,,'110 bpjnq duly sworn dcC'ord in~1 LO law, states this ""'fit iH '''I III J1pff STAYFIJ. Sheriff's Coala: Docketing Poundgae Law J,i hrary Prothonotary Service Surcharge Levy $lU.oo 38.0(1 .~O 1. DO C). '12 6.00 20.00 $93.42 ^dVdfH'P Con t H: Shet'iff'H Costs: SIBB.O(J 'J 3.42 $ 94.58 Refund to atty on 12-20-99 Sworn Rnd suhscrihed to h,~fnre me So An$-.;efs: rC'. ""T;O" r--...... oI'"/...r R. Thomas Kline, ..' .." Sheriff h. <" f i T 1S .20 -qday 0 '--:/L"~<"7 It.~, A.D. I.,<~ () )1W:L 4'1; (:b I I C;:-~: ~ ~ By~SYV1iih ep ty Sheriff -f.J "? <;-. (' t; p ,.~ ~..~ "1 L:.. , , w ,., c. ~'~ ,; '- ., ~ I ~-u , . c.k.:; 1,<'00. R".. Q03J);I