The URL can be used to link to this page

Home My WebLink About00-06778 ,.-1 ~, <~ '-~ .- ',1.-,: ~_:_~:~,;; ::-::,,: -~, :;-.-:l~,::"; . '.,;" c. ,";:,~~, _,',;.-,_ ,_', <,,' ": --,'-.' ',",,,,'/'~ . ."',.,,,, ",' ,- ~"-""~"', FERN 1. WILSON, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : No. tb- &/lT~ IRA J. McMANUS, JR., LESLIE J. McMANUS, JAMES R. DUNKLE, and KAREN 1. DUNKLE, Defendants ; Civil Action CONFESSION OF JUDGMENT Pursuant to the authority contained in the warrant of attorney, a true and correct copy of which of which is attached to the Complaint filed in this action, I appear for the Defendants and confess judgment in favor of the Plaintiff and against Defendants for possession of the real property located at 401-403 Market Street, New Cumberland, Cumberland County, Pennsylvania. The abstract of the title on which Plaintiff relies on is contained in Exhibit "A" and attached hereto. Dated: October 3, 2000 arbara Sumple-Sullivan, Esquire ttorney for Plaintiff '549 Bridge Street New Cumberland, PA 17070-1931 (717) 774-1445 Supreme Court I.D. No. 32317 i...,':":,.J.. ~.:~:" ~.:.~.;,:,:, . .-, :~:';<::i ~--: . ~ ... "~~"",,, ~ ., } '~," '< ::;;'~i -~I ", ;<- _" , '" I ' , ",'~Z,:;.,-,,';7;;;.~~, ~~~";..~:;: EXHIBIT II All :r~~~;:~~~:;,r~ ;:~,~;~':~ _ 't..-"'l.",r.~;:; ;, - ~-~~ " ,":";""~"V~:';':':,;':","';',~,,---' "' ~- '1 l.t':':...:' , ~..._.......a......' r" ~~:-:":~~~~r:: . ~ ....,'m,.,Ji,:.. " --' --,-- ~.; ..;.' <'~~'~.~";,'.,;~~;~,,,L~.::.;>'_~ ::'.'~- ) ...~....... :::':rr~~'#:,; ."~~~1~r~":"' ,...... ~. '-".. IUIL(."~;"',.d:~: <";r:.l.~~:;,~i,!;I:iI~C.:,,. . .:.1:: -: ,- , ~~~;~~~~, '..:~'r .;.~'~ .~~ >,.'~,~. ' "~;"--"...':';';''':'''''''''~"~M''~'':''''-'/'' ! .1!ade th.e &7>f in t!t.(, !.Iear ~'- day of .\~ineteen hundred and seventy-nine (1979) ~. . n:tIC.:Cn ~RN L. PA..~:\':I, a/k/a F!.!Ul L. WILSON, single e~ Cumbe=landj Cucbe=land County, Pennsylvania, G~~-roa, pe:::SC;I'l"., of A N D !!RN L. WILSON, single pe:son, 0= Ne~ C~e=2a.~d, Cu~be~land County, Pennsylvania, GRAN7E!. :;-~ ~ =z l:\' o:::.~ r::::~' s~~ ,..-.00 _...~- ='=00 "';;i- "" -~c':: ::..' ~:~ ~i1 <I -"o;:::,,-:::~ ;tt1 n&.$"!i'c,UT, That in consideration ot' O:ie Dolla::, ($1.00) ---- -:+~~: ...) , --.l' - "-='~ ;;; -------------------------------------------------------------{'lJoncrs. in hand pa.id, the receipt u:hereofis hereby acJ..;nowied~'ed, the said fro.an.tor does hereby ira.n.t c:nd convey to the said grc:n.tee, he:- heirs a.nd c:sslfn.s ~l ~~.! C~R=A!N lot 0= ==ac: ci lane ~i:ua:e __ :~e ~o:o~gh 0: Ne~ Cu=be=la~~, C~:be=la~d Cou~:Y, ?e~nsylva~ia, ~=e pa=~ic~la~~y ~ou~dec a~e desc:~ibeG i~ a~~o=:ance ~i:h a s~=vey by ~i~~a21 c. P'Ang~lo, ~ebis:e=ed Sc~eyo~, da:ec Oe:obe= 12, 1976, as follo~s, :0 ~i:: !tG!.."'ffi"!NG at. a ,?oint a: :'~e :1o=~:neas: eo=ne= 0: ~..s.=ke: S:=ee: and r,:n:::::.h S::ee: said point being the ,?oi~t 0: ~:1tersee:io~ 0.: ::ne e~::.e~al valls of b~ile~;s Nos. 401 and 40J; thence alon& :.he eas:e~ line 0: ~=ke: S:=eet, No=~ 50 de~ees 00 :inu:~s west fit:, (SO) ;eet to a nail. being :he sou:h~es: co~e= of tot No. 73; thence along :he sa=e. No:::.h 40 deg=e:es 00 -=.i:1utes ta,$t. O':1e hundred !ive (105) fee: to an i=o~ pir.; thence alonb la:1ds UO~ or io:-=e:::ly o~ George E. Pentz and :~rough Lot No. 7~, Sou:h 50 dei=ees 00 :inute~ ~ast :i;ty (50) fee: to an i:ou pi: on the no~:hern li~e 0: 7ou~:h S:reet and oc :he ex:eusiou line of the sou:he=u external ~all 0= builei~gs Nos. 401 4nd ~Oj; thence along said last men:ione~ line Sou:h 40 de~ees 00 ~inu:es Wes: one hu~d=ed five (105) fee: ;0 tbe ~lace of ~EGnn~!NG. ~ING the 6=eater pa=: of ~o: No. 72 o~ :he Gene=al ?lar. 0: the 30:,ough 0: N~ CU~Derland. Je:nsylvania. EAVING thereon e::-ec:ed a t'loJ"c-sto:-y b:'ick bc.ildins K.j.ovn 4S anc nU:::lbe~ec 401-403 M.a:-!tet St:-eet. !!lNG !RE SA..'lo[E, premises which Thomas A.. Pa=enti ana re=:: L. Pa:::enl:i, r.is ;,rife, by deed da:c.ed Ma=eh 27, 1978. and -recorded in Deee! !ook "S", VolUt~e 27, Page : in the O::ice of the i.eeorcie:- 0: Deeds in and for Cu:be:-1anc. Coun':y, ?eunsylv, g:-anted and c.onveye.d unto :Fe~ 1.. Pa=ent.i. '!he said '!hooas A. l'z':'e~=i and Fern t. ?a:end were divo:'ced under date of Oc:obe:- 12. 1978, by 'Dee=e:e 0: tho Cou:-: of C~on ~lea$ 0= Dauphin County) Pennsylva~ia, co no. 1744-S-1S7a. the said Fe:u L. Pa~en:i on Oc:obe= 20, 1978, elec:ec to res~e be~ maide~ na~ of Fern L. Wilso~. __ _... > ; ~ t"_ ~_, ,,;, ~_ -.:.;-';... ",......'" r .;::~ 'c,:-:....:::y ..~s:...'-~~-', ~, ......:: ,..'_..:..'-....~ ';"--. [{ ---'- and seal ~n ~lihu'.5'i5i ~lt="":llr!, said t>anto> the day and yea!" first abot.'e wrEtten.. .$isndl, .$"",ldl ",n'\ !1lcli,,"u'\ ;n !~. firm"," DE ! \ ;fZ"".JdZe 7/ ..:t.....dT v' ~tSmm.tm.'C~:a.H~ csf llcnn9~!":Z:::.nin ("nn", '" Cu.-A~ . - On thill, the c:, ~ day ul ~ ;' 401314'). t'~. Par.n~., a/.,a ,;"'", l ! /{/IsV>-../ ~ ~. W~~son ~ -- } ..... 19 79 ,befut"e mf' a No:.ary P\J,l::lic." thp. Ilnd,.,.,itrtt'd ulfi.cer, pa!on.a!ly (;PP"ar~d ~~ L. PA..'t::;:.r:':, a/k/a ::=:'Rl.~ L. W'::l,SON . , . .. , . -"" ~" ", known tQ m.,.,(unaLL~rll(.t(J,.iLy p,.o/len.)Lu be th~ pf'!.1'.<r;tJn S wiw,.t: n.om.f' is .".t#"~:~~f':;;~~~' in.,ttrll1nr:nt.. ClJ14 4cknowledtr.d t.hat skt' "ZfH'ut,.d tht: ,.ame for the .DlLrpOlte::'it'i't:i:h,':~~n.Lain.~. -:".,.:. IN W'[T~\"ESS W1/EREOF. 1 haue here:u:1tto .u:t m.y n.cmd and o::ic:ial f ...f~al. .;.-\'""""1:. ~~.~~. ~ - J~' ,,~.._.~. -;:- - - /1.. I',,~...;;::' ~'.t>>'~tI.~ _ __~ " ... &1;.'.}':I', _".1\'11\4_:;: /1 ,'-'nO -.',. ". \ ..~ . v :'..~~j \l~ ;11':' Set'- ~l ~;:,"l'~;; ;" .:?f_ :-7:.... ~!'" '" l~:;'l$-~ 1... ~~e<'~r.I~:i .........r....~ /7 F- __.....", \l': ..~-'-1~... ( '. ~:.:r . ,..-'- (/ lM~.' . .,.~,~.. -~-e.-- .....' .o;.amm=n':::!r::=.l!~ ~f :Pt'7tr..s-=.i1:!:::.ni::. ttD'U:'~~ oJ OIL tJl.i.~, elte duy vJ tht ul1dl"rsitnt'li u/ficer. pf!r:wncllly appeuN',1 }..- 10 . b,'Jure me klllJlun (a "'1"((~rl<tI,j,.:f,wlarily pr,w,." i If) h.. ,It.. rlf'r.~(HI w/tw:..- rl.tlfTt" ;':flh.f~ribed llll)u }J...jth.i! illll(""'Il:nl.. tJlI.(f Ut'IOWfUI,.ri~"f' l/jtlt lit, f"xP'f"fL,...d Ot(" :Iuml' far tli" rlifrpo,'e thel'ein f"flftlaitl,.d. t.,. U1i.\.!~'SS WHt;/U;OF, ! hur,r. ltt!l'etm(u "1'1. my han.d and st:al. 3: ~t:'th~ (!!:t:'tif~ that the precise add"ss of the g>an,tee r herein is lz.n1 1>.\;o-\l:..r 5.""'''''' Ne~ 'Cumbe~land , , "' ,.. ~ I ""t,,"- " +, -" " , ',-e---", -',' __~^'~t:<~', ,~~~:;-~;":,":-~ ,;'11'1:' -'~: ":"."V,'--:iJ'--'" -.:;:',;/-;:, ?"l . ^'. _';_,,~-- :',':,-, - ',""Cl'--':"',"",,-'_Y d ~..' ",~>, ' -,",,,,,, ;,:',Ci' ",^,,,,,; . """ ~..... FERN 1. WILSON, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VANIA v. : No. CO - 6/77<6 IRA J. McMANUS, JR., LESLIE J. McMANUS, JAMES R. DUNKLE, and KAREN 1. DUNKLE, Defendants : Civil Action AFFIDAVIT OF NON-MILITARY SERVICE I, Barbara Sumple-Sullivan, Esquire, being duly sworn according to law, deposes and states that she is an officer of Plaintiff, that she is authorized to make this Affidavit on behalf of Plaintiff; and that none of the aforementioned Defendants are in the Military Services of the United States, nor any State or Territory thereof or its allies, as defined in the Soldiers' and Sailors' Civil Relief Act of 1940 and the amendments thereto. I hereby certifY that the facts set forth above are true and correct to the best of my knowledge, information and belief. I understand that any false statements made herein are subject to penalties of 18 Pa. C.S.A. ~4904 relating to unsworn falsification to authorities. Date: October 3, 2000 Barbara Sump Ie-Sullivan, Esquire Attorney for Plaintiff 549 Bridge Street New Cumberland, PA 17070-1931 (717) 774-1445 Supreme Court I.D. No. 32317 J: I~ ~CTT ,[ -"',-;"". ~.- ,- ""'-,, ,---,--" -, :~'" 4""-'-: ".,~~,,' , ",":-'-,.-' ~-;;< j',. - , ',;-,~ , FERN 1. WILSON, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VANIA v. ~ No. 00- ~~7~ IRA J. McMANUS, JR., LESLIE J. McMANUS, JAMES R. DUNKLE, and KAREN 1. DUNKLE, Defendants : Civil Action AFFIDAVIT OF BUSINESS TRANSACTION I, Barbara Sumple-Sullivan, Esquire, being duly sworn according to law, deposes and states that she is authorized to make this Affidavit on behalf of Plaintiff; and that the transaction upon which Judgment is being entered by Confession was a business and commercial transaction. I hereby certifY that the facts set forth above are true and correct to the best of my knowledge, information and belief. I understand that any false statements made herein are subject to penalties of 18 Pa. C.S.A. ~4904 relating to unsworn f arbara Sump1e-Sulhvan, sqmre Attorney for Plaintiff 549 Bridge Street New Cumberland, PA 17070-1931 (717) 774-1445 Supreme Court l.D. No. 32317 Date: October 3, 2000 i ,,~ 'C~ , I '....I~. ~..... ',' '",' '..'J ,,"::;j:',- ,--- '-'-0'";'''-'''_.''' ~ -- '--0--': , , FERN 1. WILSON, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : No. 00 - ~771, IRA J. McMANUS, JR., LESLIE J. McMANUS, JAMES R. DUNKLE, and KAREN 1. DUNKLE, Defendants : Civil Action CERTIFICATION OF ADDRESSES Barbara Sump1e-Sullivan, Esquire, attorney for Fernrock-Snyder, Inc., Plaintiff, certifies that the present address of Plaintiff is: 68 Cumberland Road Lemoyne, PA 17043 and the last known addresses of the Defendants are as follows: Ira J. and Leslie J. McManus, Jr. 824 Kings Highway Mickleton, NJ 08056 James R. and Karen 1. Dunkle 3806 Hearthstone Drive Camp Hill, PA 17011 Date: October 3, 2000 B rbara Sump Ie-Sullivan, Esquire Attorney for Plaintiff 549 Bridge Street New Cumberland, PA 17070-1931 (717) 774-1445 Supreme Court LD. No. 32317 I,. ,~,,: ,,-, ' ~ , ">r~' - ;'-''';;1 . ~",., ,'--', ~" ,-- '~e ~ - "" --j",-'-;"-,''; :1tH:~ ~ " FERN L. WILSON, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VANIA : No. DO - (a 1\~ v. IRA J. McMANUS, JR., LESLIE J. McMANUS, JAMES R. DUNKLE, and KAREN 1. DUNKLE, Defendants : Civil Action AFFIDAVIT THAT ACTION DOES NOT ARISE OUT OF RESIDENTIAL LEASE I, Barbara Sump1e-Sullivan, Esquire, being duly sworn according to law, deposes and states that she is authorized to make this Affidavit on behalf of Plaintiff; and that this is not an action by a seller, holder or assignee arising out of a residential lease. I hereby certifY that the facts set forth above are true and correct to the best of my knowledge, information and belief. I understand that any false statements made herein are subject to penalties of 18 Pa. C.S.A. ~4904 relating to unsworn falsification to authorities. rbara Sump Ie-Sullivan, Esquire orney for Plaintiff 549 Bridge Street New Cumberland, P A 17070-1931 (717) 774-1445 Supreme Court l.D. No. 32317 Date: October 3, 2000 'I' ',"-:,_. ,.,-, ,:-"',-;,""F ~~. , ';:""')';'('"";)f'l"fi";)''''''''';>I'){ .., :",_,,--;,~,"1- '''-_::_,\,,~;:''?'-:"'';'';'' ""'-<"';;'''.-;O:W"",'",,\,,;'_,'''/'''' :"','f;'Jt:';:,'-" ." d',_"< ,_ '---:,;,'_"'_, , ;, ",,:, /'. "~iLi.-&; -..~: ~.... FERN 1. WILSON, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VANIA v. : No. 00 -(P112 IRA J. McMANUS, JR., LESLIE J. McMANUS, JAMES R. DUNKLE, and KAREN 1. DUNKLE, Defendants : Civil Action AFFIDAVIT PURSUANT TO PA. R.C.P. 2971(a)(2) I, Barbara Sumple-Sullivan, Esquire, being duly sworn according to law, deposes and states that she is authorized to make this Affidavit on behalf of Plaintiff; and that judgment is not being entered by confession of judgment against a natural person in connection with a residential lease. I hereby certifY that the facts set forth above are true and correct to the best of my knowledge, information and belief. I understand that any false statements made herein are subject to penalties of 18 Pa. C.S.A. ~4904 relating to unsworn falsification to authorities. Date: October 3, 2000 Barbara Sump Ie-Sullivan, Esquire Attorney for Plaintiff 549 Bridge Street New Cumberland, PA 17070-1931 (717) 774-1445 Supreme Court l.D. No. 32317 I, ' ,nc" ", C.n, :,,- ~ I, ,- ,,' ,"~ ','I, ".- '" "'"," ,--, --~:", ,', "~;. '.''''.- ,6'; , ;,.; --~',)" .' h I t L , FERN 1. WILSON, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. v. IRA J. McMANUS, JR., LESLIE J. McMANUS, JAMES R. DUNKLE, and KAREN 1. DUNKLE, Defendants : Civil Action COMPLAINT TO CONFESS JUDGMENT FOR POSSESSION OF REAL ESTA TE 1) Plaintiff is Fern 1. Wilson, an adult individual residing at 68 Cumberland Road, Lemoyne, Cumberland County, Peunsylvania 17043. 2) Defendant is Ira J. McManus, Jr., an individual residing at 824 Kings Highway, Mickleton, New Jersey 08056. 3) Defendant is Leslie J. McManus, wife ofIra J. McManus, Jr., an individual residing at 824 Kings Highway, Mickleton, New Jersey 08056. 4) Defendant is James R. Dunkle, an individual residing at 3806 Hearthstone Road, Camp Hill, Cumberland County, Peunsylvania 17011. 5) Defendant is Karen 1. Dunkle, wife of James R. Dunkle, an individual residing at 3806 Hearthstone Road, Camp Hill, Cumberland County, Pennsylvania 17011. "I; , '~ ' ',.' ,,", , ,-,' -1-, 'I:: '~"""__" 'l.-":-",,,;.. ,'_",.,', -,.' ):';-', "'.i..1:;';'o-,;i_;""""" , -"-~->~..,~':'-, , 6) At all times herein mentioned, Plaintiff was and now is, the owner and entitled to possession of the certain real property located at 401-403 Market Street, New Cumberland, Cumberland County, Pennsylvania. A copy of the deed wherein Plaintiff acquired her interest in said property is marked as Exhibit "A", attached hereto and incorporated by reference herein. 7) On or about April 1 ,1999, Plaintiff and Defendants entered into an Installment Sales Agreement for purchase of the aforementioned property. A true and correct copy of said Agreement is marked as Exhibit "BOO, attached hereto and incorporated by reference herein. 8) Pursuant to Paragraph 3 of the Agreement, the purchase price of the parties was Two Hundred Ninety-Five Thousand Dollars ($295,000.00). Thirty Thousand Dollars ($30,000.00) of said sum was paid at the time of the closing. The principal sum of Two Hundred Sixty-five Thousand Dollars ($265,000.00) was to be amortized over a twenty (20) year period with interest at the prevailing applicable federal rate (mid term) but not less than 5.25%. The payment was to be paid in eighty-four (84) equal monthly installments of One Thousand Seven Hundred Eighty-five Dollars and 69/100 ($1,785.69) with a balloon due on the eighty-fifth (85th) month of Two Hundred Two Thousand Four Hundred Sixty-eight Dollars and 41/100 ($202,468.41). 9) In accordance with the provisions of the contract, Defendants entered into possession of Plaintiff s real property on or about April 1, 1999. 2 ,.,,'- ,~,. ;,'" , --", 0,' ,,' '~','<__~:,::.~": '" -- o<"::~.;T~: <AI';': ,"" '."--,.,--.-- ' ,,-,<,'.Y'," ' ;.'.0, ",,,,,,,,,,' ""';'U~"'" '-'__C';'C,"'" ":,.,.;~) ,~ , 10) Defendants have failed and refused, and still fail and refuses to comply with the Agreement, in that Defendants have failed to make the payments due for August, September and October 2000, although Plaintiff has made demand for same. 11) One event that constitutes default as defined in Paragraph 18 (a) of the Agreement is the failure of the Defendants to make the required payments within thirty (30) days of the due date which is the first day of the month. 12) Defendants' failure to make the August 1,2000 and the September 1, 2000 payments constitute default of the Agreement and as such in accordance with Paragraph 19(d), Plaintiff declares this Agreement to be terminated and enters into possession of same. 13) Paragraph 19(e) provides: Seller may proceed by action of ejectment on this Agreement after default for recovery of said premises; in such case, BUYERS HEREBY AUTHORIZE AND EMPOWER ANY ATTORNEY OF ANY COURT OF RECORD IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR FOR BUYERS AND CONFESS JUDGMENT OF EJECTMENT, AND AUTHORIZE THE IMMEDIATE ISSUING OF A WRIT OF POSSESSION AND EXECUTION (WITHOUT ASKING LEAVE OF COURT) FOR THE COSTS AND TEN (10%) PERCENT ATTORNEY'S COMMISSION OR FEES, WAIVING ALL STAY AND EXEMPTION LAWS. The Buyers hereby waive and release all errors, defects and imperfections whatsoever of a procedural nature in the entering of any judgment or any process or proceedings arising out of this Agreement. Buyers also waive the benefit of any laws which now or hereafter might authorize the stay of any execution to be issued or any judgment recovered hereunder or the exemption of any property from levy or sale thereunder. 14) Plaintiff, by virtue of the above, is the owner of said premises, and is entitled to 3 'I;.,. ~, ~, , ",,^ >,~':~",',~' d '1":' ,~, '<"l,~ .l.' __ "; ~ ___~ '",J,J ,,',," ,.;:--;i , possession thereof. Defendants are occupying the said premises without right, and so far as the Plaintiff is informed, without claim of title, given their default. 15) Defendants continue to be in possession of said real property, and at all times continue to withhold possession from Plaintiff. 16) The abstract of the title on which Plaintiff relies on is contained in Exhibit "A" and attached hereto. 17) Defendants are not in military or naval service of the United States or its allies within the provisions of the Soldiers' and Sailors' Civil Relief Act of Congress of 1940 and its amendments. 18) Judgment is not being entered by confession against a natural person in connection with a residential lease. 19) Judgment has not been entered against Defendant on this Agreement in any jurisdiction, and Plaintiffs rights pursuant to this Agreement has not been assigned. 20) An Averment of Default is attached hereto. 21) Judgment is demanded as authorized by the Warrant of Attorney contained in Exhibit "B." 4 I' 0 , I:;",--;;;",."".,.,.,,--^ .Ii ,....','.,',,__.,':, "X , 'C '~ ,,' '~""~, ~, ""<'':'-'Ii ',,, 1'1 22) The Warrant of Attorney appearing in the attached Agreement is less than twenty years old. WHEREFORE, Plaintiff hereby requests that a judgment for ejectment of the real property located at 401-403 Market Street, New Cumberland, Cumberland County, Pennsylvania and Plaintiff be granted possession against Defendants. Dated: October 3, 2000 Barbara Sumple-Sullivan, Esquire Attorney for Plaintiff 549 Bridge Street New Cumberland, PA 17070-1931 (717) 774-1445 Supreme Court LD. No. 32317 5 I.; , i'J - EXHIBIT "A" l _=<~~ r ~~~~~=::~---:-c---- ~ ;c..... \"'J. ',~',." -~~"4.-"'i.,-,,;;"'\'-:" ~,,,..~\.- -",-" ,- "'.~ '", . -~"""'~~~"c~-:,~::. -, , ~~. b, ..I j """-- ----~-,.~"--- ...-:~-,-- ,,~ :".. ,-~ .:..:~- . .Made the (;.7lf ,in the !le.ar flp.nl...- day of J"ineteen. hundred and seventy-nine (1979) ~""'h:nt'.en FERN 1-. PARENTI, a/k/a FERN L. WILSON, single l'e:-son, of ~. C~mberland, Cumberland County, Pennsylvania, GRA1iOR, A N D FERN L_ WILSON, single person, of Ne~ Cumbe~land, Cumberland County. Pennsylvania, GRANTEE. ~ g::::o~ _~O - ~ - e ::~6:; -~. ~;:tI~ V\ c~= w, . :">C1~ -:mil il ::;gO;::"=:::e ~ 1't.e.!Si!Sf&.U:r, That in oon.sideration of One Do118:- (~l.OO) ------~-~-.:::~: ") -.l l = =~ ~ -----------------------------------------------------------------------('Dollar" in hand paid, the receipt whereof is hereby acknowledged, the said tr:r;.ntor do es he1'eb]/ era.nt and con.vey to the said grantee, her heirs aM assign.s, ALL riA! CERTAIN lot or tract of land situate in the Borough of New Cumberland, Cumberland County. Pennsylvania, more particularly bounded and described in accordance vith a survey by Michael C. DIAngelo, Registered Surveyor, dated October 22, 1976, as follows, to ~it: BEGLlfflING at a point at the nor't:heast corneT of Market Street and :F'ourt.h Stree:: said point being the point of intersection at the exte=nel walls of buildings Nos. 401 and 403; thence along tbe eastern line of Market Street, Uorth 50 degrees 00 minutes West fifty (50) feet to a nail, being the south~Jest corner of Lot No. 73j thence along the same North 40 degrees 00 minutes East one hundred five (105) feet to an iron pin; thence along lands now or formerly of George E. Pentz and through Lot No. 72, South 50 degrees 00 minutes East fifty (50) feet to an iron pin on the no=~he=n line of fourth Street and on the extension line of the southern external wall of buildings Nos. 401 and 403; thence along sa.id last mentioned line Sou:h 40 degrees 00 minutes '1Jest: one hundred five (105) feet to the Place of ~EGrNNINC. BEING the grester part of Lot No. 72 on the General Plan of the Borough of New Cumbe~lanJ, Pennsylvanie. HAVING thereon erected a two-story brick buildint known as and nwnbered 401-403 Market Street. BEING THE S1U~ premises which Thomas A. Parenti and Fern L. Parenti, his wife, by deed dated March 27 I 1978. and ,recordeo in Deed '&ook IlS"1 Volume 27, Page : in the Office of the Recorder of Deeds in and for Cumberland County, PennsylvG granted and conveyed unto Fern L. Parenti. The said Thomas A. Pa,renti and Fern L. Parenti were oivorced under date of October 12, 1978, by Decree of thl Court of Common Pless of Dauphin Couoty, Pennsylvania I to No. 17~4-S-1978. The said Fern L. Parenti on October 20, 1978, elected to resume her maiden nar. of Fern L. Wilson. ~: ,_, ~: ~, . _ 1;'_ __, v; , , ~_ -:;-;..... , J -- ., ...------., '"-----,, ~^ .-~""",,-'-~ '"' J..:::.....'...,.:.: -,; ",',. r - ---------- and seal ~n 2I111unc!Ss ~h=C:!lIf, said grantar , the day and year first above written, ,$ign'A, ,$....l.A ...nA Ddill.nA ~n t~.t llrt9n'U'.t .of a..;j-ldt. -z/ ~ ;' W~14<l [/- a --I ~tlnun%Jnmt'nH,~ DE l1.tun!Ei~hu.,.nic } "". ~~"'nll1 ~f~~ On thill, the c.. ~ duy vi ~ 19 79 ,befure me a Notary Public., the /lndnsirne-d officer, per,~onaLIy apP"ort'ri FERN 1.. PARENTI, a/k/a FSRN t. wtLSON -, , .-_,... #i', .'..' knuwn to mr: (ur .~at,i..'1flJdurily ",.o,'en) to be the- pp.r.'101l. S whfMe nom.... is $~~~~Jii.Hfd,}tq;"F,~ in:l:trum.enL OJ/.d aC!kl~oUJled'1t'!d tha-t she- ,.:rec-ut,.d chi! .~ame for the pu.TPoRe:tJierei.i~.:c~ntainiid.. '":.,:. IN WITNESS WHEREOF, I haue hereunto Met my hand and ofticial f .,;a:l. ,~-~\:L:~.., ~ - ~/ /f'- /\.:)i'~k;;;,.' . (,...,.... ~...... ~"'ol\111~ 'D~ . ,","." ..'Il". \L.'::''' "~.~ _0" ~~~ e;' . r~ St~ ~\ W:.'.l!\t.:- ," . A ~a..'C... ~:Jl>> \1ItiMI.....,o,,_ ./? ;::r ~~~L:i.,.~~' lC::i~~.~;.~'~~ ~cmm;tlnUicnll:~ uE :pt'nna'l2,l'1:nni.tt ~n1.111.~E. Df OrL thi.~, the duy uf thl! u.fl.df"r:li~nf'd C)/ficer. pl!rsorwlly appeurl!r! l ~~- 19 . I.lf'fo1'r: me knuwn/v mr{or.'iulixf(ldorilfJ !'rIJI'/'II) III/H' tht' fJf'r:lun wllo,'iP Itrl11~t' .'ildMcribed tv thp It.itnjr, illxtrllmellt. altd u('kIW/lJl('(i~f'd thut }1I' rXPf'lltprl thr .qump [ur iii" IIIu'flo.,e therein /'Ilntuinrd, IX WIT.\-gSS WHERt.:OP, I htll~e he.reulltu ut my hand and seal. ~ ~nt'h~ (!tcrfif~ that the precise address of the gran.tee r , ,-,.:'- herein is ~n1 M~~kQt Str~~t New Cumbe~land PA 17 , , ~ ~ I r...lj,;"".j., 1 ,I EXHIBIT "B" '1.'--,-- , '-'~," ". ~I, "I., '. , '.-- , ~, , ~ ~'.~ '9' {":",\ " 1 ,,. J'j .' . . r INSTALLMENT SALES AGREEMENT THIS AGREEMENT made this / 6r day of /) PIf I L , 1999, by and between FERN 1. WILSON, of New Cumberland, Cumberland County, Pennsylvania (hereinafter referred to as "Seller") and IRA J. McMANUS, JR. And LESLIE J. McMANUS, his wife, ofMalaga, New Jersey and JAMES R. DUNKLE and KAREN 1. DlJNKLE, his wife, of Camp Hill, Pennsylvania (hereinafter referred to as "Buyers"). WITNESSETH: WHEREAS, Seller is presently the owner of a certain parcel of real estate known as 401-403 Market Street, New Cumberland, Cumberland County, Pennsylvania (hereinafter referred to as the "Premises"), which premises are more particularly bounded and described in Exhibit "A"; WHEREAS, Seller agrees to sell and Buyers agree to purchase said Premises under and subject to the terms and conditions set forth herein; WHEREAS, Buyers are additionally purchasing from FernRock-Sny~er, Inc., a Pennsylvania corporation of which Seller is the principal, certain assets used and useful in operation of a bar, restaurant and catering business known as Pete's Cafe, which Agreement is attached hereto as Exhibit ( [ ,---_.._,. -~---- I. ,I"". I.. ,~." " ~_d.,," :r ,.} . , I . . ~ . . I, ., ,. "B" and incorporated herein by reference; WHEREAS, purchase of real estate by Buyers pursuant to this Agreement is contingent upon successful consummation of Buyers' purchase of said assets of Pete's Cafe and complete satisfaction of all payments due pursuant to said Agreement attached as Exhibit "B"; NOW THEREFORE, in consideration of the mutual covenants contained herein and intending to be legally bound hereby, the parties hereto, on behalf of themselves, their heirs, successors and assigns, agree as follows: 1. Incorporation of Recitals. The recitals set forth in the. above whereas clauses are incorporated herein as substantive provisions of the parties' agreement. 2, Real Estate. The Seller agrees to sell and the Buyers agree to purchase all that certain premises situate in the Borough of New Cumberland, Cumberland County, Pennsylvania, as more specifically described in Exhibit "A" attached hereto and incorporated her~~n by reference. 3. Purchase Price. The purchase price to be paid by the Buyers shall be the sum of Two Hundred Ninety-five Thousand ($295,000.00) Dollars, to be paid as follows: . (a) Thirty Thousand ($30,000.00) Dollars upon Closing of the parties' business asset acquisition of Pete' s Cafe as set forth in Article 10 of the Asset Purchase Agreement 2 ~ "~~~:r":::::'~,~,-,I'!:">:;."1...~ ",~ "~"'''~'~'>''"Orr'''' " .,~~...,.,.,..,?",~'-.r~~~",.".~.,.,..l.' '""'.7'''''~''''~~':";'7 "..'>'"";'~ C'~...,'~ ">'1~~~7''"'''7:~=-::''~:' +":,,: , .,--""., ,l~ ,.', , ~o ~'...r.j ,. u . , J , , attached as Exhibit "Boo, (b) The principal sum ofTwo Hundred Sixty-five Thousand ($265,000.00) Dollars shall be paid in eighty-four (84) equal monthly installments subject to the adjustment as set forth in paragraph (c) hereof Interest shall be at the prevailing applicable federal rate (mid term) at time of Closing but not less than 5.25% amortized over a twenty (20) year period. A balloon payment shall be due for the remaining balance on the first day of the eighty-fifth (85th) month following Closing as defined in Article 10 of the Asset Purchase Agreement attached as Exhibit "BOO. Specifically, assuming an interest rate of5.25%: (1) Monthly payments of One Thousand Seven Hundred Eighty-five and 69/100 ($1,785.69) Dollars for eighty-four (84) payments with the first payment being due on the first day of the first calendar month following Closing and on every first day of the next eighty-four (84) months. Ifany payment is not made by the tenth (10th) day of the month, Buyers shall pay an additional five (5%) percentPfthe monthly payment due as penalty. Said late charge shall be paid by Buyers to Seller with the monthly installment due and owing. The full balance of Two Hundred Two Thousand Four Hundred Sixty-eight and 41/100 ($202,468.41) Dollars shall be due on the furst day of the eighty-fifth (85th) month following Closing. A coPy of the Amortization , ~ Schedule is attached hereto as Exhibit "COO. (c) Buyers shall have the right to prepay the purchase price, However, said right to ~ I prepay is specifically contingent upon Buyers simultaneously satisfYing all sums due 3 ,<:"L.'",~, ", ",':'~"""f:~,"'~~"'_ ,c., .~i':l~'~~.~,~~';';'~"f:".'1'~''''''?'':~\~..r,..,,,, "~,I' ~ ,,,~~,"'~~>,",,.,, ".'''',~''J'''r,:.>...",.-,~~,:::""..":",,, '.1 '- ,I ~ '~ b...-""""""hc ~ ~ " ,h .' 'I and payable pursuant to the Asset Purchase Agreement attached as Exhibit "B". (d) All of the above stated payments are to be made payable to Fern 1. Wilson at 68 Cumberland Road, Lemoyne, Pennsylvania 17043 or such other address as Seller may advise. Should Buyers fail to make the monthly instalhnent payment in full, as provided in the paragraph 3(a) or 3(b) hereof within fifteen (15) calendar days after the sarhe shall be due and payable, then Buyers shall pay an additional five (5%) percent of the payment due as penalty. Said late charge shall be paid by Buyers to Seller with the installment due and owing. 4. Transfer of Title to the Premises. On the payment of the full purchase price, title to the premises shall be conveyed from Seller to Buyers at final settlement. . Final settlement shall occur in accordance with Paragraph 23 of this Agreement. Transfer of the real estate shall be by special warranty deed and title shall be free and clear of all liens and encumbrances except those easements and restrictions presently of record, and also subject to any liens or encumbrances which Buyers may have caused to be created during the term hereof. Seller, up,()n the execution of this Agreement, shall deliver to the law firm of Barbara Sumple-Sullivan, Esquire ("Escrow Agent") a special warranty deed for the real estate executed by the Seller. Escrow Agent shall accept, take custody of, and keep safely the deed. Upon Buyers' presentment to Escrow Agent of proof satisfactory to Escrow Agent of the payment in full of the purchase, price and Buyers' full performance of all other terms and conditions of this Agreement and all ~conditions of the Asset Purchase Agreement attached as Exhibit "B". Escrow Agent shall deliver to Buyers the deed to the 4 j I --.", ",'-- ,',-,', ,~~__",l'?,. .'rw.c:r.~--:';--~':7,-~", ~~"""" /;.J;'''' ,j$ ,~ ~I ".' .1;" ; , , ,,' ,'~ ' 'iI...._",-'I\: , ~) , J " ." " premises. Escrow Agent shall not have any duty or obligation to take any action with respect to the collection of any of the indebtedness represented by this Agreement or the Asset Purchase Agreement attached as Exhibit "B" or to otherwise act with respect to these Agreements, except that, upon presentment of receipts or other acknowledgment or proof of payments of the obligation hereunder, Escrow Agent shall deliver the deed in its custody to Buyers. 5. Possession of Property. Buyers may enter into possession of the property and continue in such possession for and during the life of this Agreement. Possession shall commence with the satisfactory Closing of the Asset Purchase Agreement attached hereto as Exhibit "B". Buyers shall maintain such premises and all improvements thereon in good repair, and shall permit no waste thereof and shall take the same care thereon as a prudent owner would take. 6. Assignment. Buyers shall make no transfer or assignment of their rights pursuant to this Agreement to any third party without the express written approval of the Seller. Seller may assign its rights under this Agreement with notice to Buyer. ,- 7. Municipal or State Improvements. Buyers agree to pay for any and all improvements to the premises done or ordered to be done by any municipality or state authority during the term of this Agreement and to comply at their own cost and expense with all notices received from public authorities from and after the date hereof. , 8. Taxes and Assessments. Buyers agree to payor to cause to be paid to the 5 ""..~...",.,~" ,."~- , ',,--, , I", "' . '" ~. r,tl~il;' , c', 'J '. , , appropriate governmental authority as an addition to the purchase price, before they would become delinquent, an amount of money equal to all real estate taxes, including township, county, and school taxes, assessments, water rents, sewer rents, and charges and other governmental charges, general and special which are assessed or imposed upon or chargeable against the Premises at any time after the date hereof and thereafter throughout the terms hereof as if the Premises and all improvements thereon were owned by Buyers unless such taxes or assessments are being contested in good faith and Buyers has provided adequate security for the payment thereof pending final adjudication. All property real estate taxes shall be prorated to the date of this Agreement. Buyers shall provide Seller with proof of payment of said indebtedness within fifteen (15) days after the due date for said expense. In the event of Buyers' failure to make said payment on a timely manner, Seller may make the payment on behalf of Buyers and give notice to Buyers of their default pursuant to Paragraph 18 ofthis Agreement. Failure of Buyers to timely cure said default, if possible, shall result in imposition of remedies reserved to Seller pursuant to Paragraph 19 hereof 9. Prorating of Expenses. Expenses for goods and services such as utilities, sewer, water, delivered prior to Closing shall be paid by Seller and expenses for goo,ds or services delivered after closing shall be paid by Buyer. Proration of same shall occur at the Closing as set forth in Article 10 ofthe Asset Purchase Agreement attached hereto as Exhibit "B". 10. Damage and Condemnation: Damage to or destruction,of all or any part of the .~ Premises by fire or any other cause of taking of all or a portion of the Premises by condemnation shall not terminate this Agreement or cause any abatement or reduction in the payments to be made by 6 , ',,' ,L.', ,-' , I~ " ."~, . i ~~'-":' t~ , , .' '. Buyers or otherwise affect the respective ob . gations of Seller and Buyers. 11. Proeee s of In ranee or ondemnation. The proceeds of any condemnation proceeding or proceeds of any insurance attri utable to any loss or damage to the Premises shall be applied to the purchase price of the Premises damaged or condemned. 12. 1m ro ements Maintenanc Re airs and Alteration. Buyers agree to maintain the Premises in good repair, order and co dition (reasonable wear and tear excepted whether structural or otherwise) and shall pay all othe costs and expenses arising out of the occupancy and use of the Premises, but not limited to all publi utility charges and utility connection charges. Buyers shall comply with all housing code standards, re safety or other governmental requirements now in effect or hereafter enacted that involve the s bject premises. Buyers will not undertake or p nnit any demolition or structural alteration or addition or improvement to the Premises without 'tten consent of Seller, which consent shall not be unreasonably withheld. All alterations or dditions to the Premises un~rtaken by Buyers shall become part of the Premises. Buyers shall not remove or pe 't the removal from the Premises of any building or other improvement located thereon without t e written consent of Seller in;wrlting nor shall Buyers " commit any waste on the Premises or any building or any improvement thereon. Buyers shall indemnifY and hold Seller and the Premises 0 Seller, including Seller's interest in the premises, free 7 , I ,', j~ --, ;h,~,;... ' , j' .".,.: "~ _#E'i , \~ , , " and harmless from liability from any and all mechanics' liens or other expenses or damages resulting from any renovations, alteration, buildings, repairs or other work placed on the premises by Buyer. Buyer shall make no material alterations to premises in excess of Five Hundred ($500.00) Dollars without the express written permission of the Seller. 13. Property. Buyers agree and warrant that they will keep the entire Premises and its contents insured against loss or damage by fire with extended coverage. The aforesaid insurance shall be in an amount of at least 100% of the replacement value, but not less than Four Hundred Twenty- five Thousand ($425,000.00) Dollars. All such policies or any additional fire insurance carried by Buyers on the Premises shall name Seller as additional named insured. Buyers shall provide to Seller proof of coverage on an aunual basis. 14. Liabili1;y Insurance. Buyers shall provide comprehensive general liability insurance with minimum limits of One Million ($1,000,000.00) dollars. All such policies carried by Buyers shall name Seller as additional named insured. Buyers shall provide to Seller proof of coverage on an aunual basis. 15. Indemnification of Seller and Waiver of Claims. Buyers covenant and agree to protect, exonerate, defend and indemnifY and save Seller harmless from and against any and all claims ofliability.which on or after the date of Closing may arise out of Seller's o~ership of the Premises ~ thereof and from and against any and all loss, damage, cost or expense or liability based upon personal injury, debt, loss or damage to property suffered or incurred by any person, firm or 8 ..'''l''''I.'''''. ' = '. F.-""""",,,,,~,'C',,,) ''-'',::-,''''~'''''' ,':'" I, I, ' ".,', I"", .", ..I ...~' "fon" " , . .' corporation (including the parties hereto) and arising out of or attributable to the presence, condition, use, operation, or maintenance of the Premises except when due to the willful misconduct of the Seller. Seller shall give written notice to Buyers of any claims asserted against Seller within ten (10) days time after such claim becomes known to Seller. If such claim is otherwise made known to Buyers, then Seller shall be under no duty to advise Buyers of said claim. In any action or proceeding except for the willful misconduct of Seller, brought against Seller by reason of any claim, Buyers, upon notice from Seller, covenant and agree to resist or defend any such action or proceeding and to provide legal counsel, at Buyers' cost, for defense of any such claim. Seller agrees to cooperate and assist in the defense of any such action or proceeding if reasonably requested to do so by Buyers, at Buyers' expense. Buyers further agree to indelIlllifY and hold Seller harmless from any and all costs (including attomey fees and costs) associated with defense of any claim or cause of action including all costs and expenses, including attorney fees, for enforcement of this indemnification. 16, Inspection. Buyers will at all times provide Seller with reasonable access to the Premises for the purpose of inspection or view of the Premises. 17. Recording. A Memorandum of Sale can be recorded by either party. 18. Events of Default. Each of the following events is hereby defined as and is declared to be constituted as an event of default: " (a) Failure by the Buyers to make the payments required to be made hereunder as part of 9 ,:i , ' ',' i",'. ~'Wc~ .' " , , , , the purchase price within thirty (30) days after the same is due; or (b) Failure by the Buyers to observe and perform any other covenant or condition or agreement on their part to be observed or performed under this Installment Sales Agreement for a period of thirty (30) days after written notice specifYing such failure and requesting that it be remedied, given to the Buyers by the Seller or her agent; or ( c) If any of the Buyers shall file a voluntary petition in bankruptcy or make an assignment for the benefit of creditors or failure by the Buyers to contest any execution, garnishment or attachment as will impair its ability to carry out their obligation under this Agreement, or the commission by the Buyers as a bankrupt, or the entIy by the Buyers into an agreement or composition with their creditors; or the approval of a Court of competent jurisdiction of a petition applicable to the Buyers in any proceeding for a consolidation of creditors under the provision of the general Bankruptcy Act, as amended, or under any similar act which may hereafter be enacted which is not dismissed within sixty (60) days. (d) Having occur any act or omission by Buyers which is deemed to be a default pursuant to Article 5 of the Asset Purchase Agreement attached hereto as Exhibit "B". 19. Remedies on Default. " Whenever any event of default referred to herein shall have happened and be existing, anyone or more of the following remedial steps may be taken: 1 0 ~-- I", 'r, , , ~J, r, , "-"~, ':"> Q" '. (a) Seller may perform for the account of Buyers any covenant or obligation in the performance of which Buyers are in default, in which event, Buyers shall immediately pay to Seller all amounts paid by Seller, together with reasonable counsel fees, as well as with interest at the rate often (10%) percent per annum from the date of payment by Seller. (b) Seller may declare all sums which Buyers are obligated to pay to Seller pursuant to this Agreement, together with interest accrued thereon, immediately due and payable in full. IN SUCH CASE OF DEFAULT, BUYERS HEREBY AUTHORIZE AND EMPOWER ANY ATTORNEY OF ANY COURT OF RECORD IN THE COMMONWEALTH OF PENNSYLVANIA OR ELSEWHERE TO APPEAR FOR BUYERS AND CONFESS A JUDGMENT FOR THE ENTIRE PRINCIPAL SUM AND INTEREST REMAINING UNPAID THEREON, WITH TEN (10%) PERCENT ATTORNEY'S COMMISSION OR FEES, HEREBY WAIVING THE RIGHT AND EXEMPTION AND INQUISITION, SO FAR AS THE PREMISES HEREIN DESCRIBED, AND ANY PROPERTY OR BUILDING THEREON MAY BE CONCERNED, Buyers hereby irrevocably authorize and empower any attorney of any Court of record of Pennsylvania or elsewhere to appear for and cqnfess judgment against ~ Buyers for all amounts for which Buyers may be or become liable to Seller or her assignee under this Agreement, as evidenced by an affidavit signed by an agent of 11 " 'I~ ;;1' ..,;1,; ~ , < <mi;I;y, t> I' '. Seller or of assignee setting forth the amounts then due plus ten (10%) percent thereo~ as an attorney's fee, with costs of suit and release of errors. Such authority shall not be exhausted by anyone exercise thereof but judgment may be confessed as aforesaid from time to time as often as there is a default hereunder. ( c) Seller may tenninate this Agreement and resell the Premises at a private or public sale and Seller will apply the monies collected under such resale, to any amounts outstanding hereunder. Buyers shall remain liable for any deficiency after the application of the proceeds. If such proceeds are in excess of the amount required to satisfY the total due from Buyers to Seller under the terms of this Agreement, then the proceeds shall be used first to reimburse Seller the costs of sale and collection, including counsel fees of ten (10%) percent. Any remainder after said reimbursement shall then be tendered to Buyer. (d) Seller may declare this Agreement to be null and void and enter into possession of the Premises and retain all sums paid hereunder to the date,of default as liquidated damages. (e) Seller may proceed by action of ejectment on this Agreement after default for recovery of said premises; in such case, BUYERS HEREl?Y AUTHORIZE AND e EMPOWER ANY ATTORNEY OF ANY COURT OF RECORD IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR 12 ,'" ",. ,,:,~I" , ~ , , " c', d.." ~1.~1 ~ I' ., FOR BUYERS AND CONFESS JUDGMENT OF EJECTMENT, AND AU1HORIZE THE IMMEDIATE ISSUING OF A WRIT OF POSSESSION AND EXECUTION (WITHOUT ASKING LEA VB OF COURT) FOR THE COSTS AND TEN (10%) PERCENT ATTORNEY'S COMMISSION OR FEES, WAIVING ALL STAY ANDEXE:MPTIONLAWS. The Buyers hereby waive and release all errors, defects and imperfections whatsoever of a procedural nature in the entering of any judgment or any process or proceedings arising out ofthis Agreement. Buyers also waive the benefit of any laws which now or hereafter might authorize the stay of any execution to be issued or any judgment recovered hereunder or the exemption of any property from levy or sale thereunder. (f) The Buyers agree to execute a quitclaim deed with the same to be held by the law firm of Barbara Sumple-Sullivan ("Escrow Agent"), and to be delivered to Seller upon default by Buyers of the obligations of this Agreement which have not been cured within the time limitations specified herein. Seller is authorize,to record said quitclaim deed in the event of default to ensure no record or claim of title shall exist. (g) Take any and all other actions available to Seller at law or equity. t 20. Cumulative Rights. No right or remedy herein conferred upon or reserved to Seller is intended to be exclusive of any other right or remedy herein or by law provided, but each shall be 1 3 ~ .11 .' L ,.~ __H ,,1"< '-, I. __~,., , ',,-, , , . 'itU'i ,. ." , " , . cumulative and in addition to every other right or remedy herein given or now or hereafter existing at law or in equity or by statute, and may be pursued singly, successively or together at the sole discretion of Seller and may be exercised as often as the occasion therefor shall occur. 21. Realty Transfer Tax. Any realty transfer tax or taxes imposed upon the transfer of the real estate shall be divided equally between the Buyers and Seller at Final settlement as set forth herein in paragraph 23. 22. Seller's Warranty. Seller warrants that no notice of any governmental authority has been issued or served upon the subject property or any occupancy thereof or upon the Seller or agents of Seller prior to the signing of this Agreement calling attention to any violation of any building, fire, safety or other ordinance or requirement or calling attention to the need of any curbing, recurbing, paving, repaving or other construction or improvement on or about the subject premises or removal of any nuisance. There are no lawsuits pending or anticipated against Seller that involve the subject real estate. No municipal or other governmental improvements affecting the subject premises are, as of the date of this Agreement, in the course of construction ~r installation and to the best of the knowledge of Seller, no such improvements have been ordered to be made. 23. Environmental Warranty. No hazardous waste, hazardous or toxic materials or wastes ori'roducts regulated by any law~or ordinance have been stored, tre~ted at or disposed of by ~ Seller on the real property, and, to the best of Seller's knowledge, have never been stored at, treated, or disposed of on the real property by Seller or by any other individual or entity. No asbestos or 14 " .', ;1,',,<,." ,. ~,.. , ' ,,' , v, " " "'-.iii.",: !'1 ... t' '. . , asbestos products or materials or polycWorinated biphenyls or urea formaldehyde insulation have been stored at or disposed of on the real property. Neither the property, nor the use or operation thereof by Seller, or any tenant of the property, (I) violates, or is alleged by any person or entity to violate, or is not in compliance, or is alleged by any person or entity not to be in compliance, with any land use, environmental, hazardous material, and/or waste handling, storage, treatment, disposal or discharge laws or other laws, building codes, zoning or other ordinances, rules or regulations, fire insurance regulations, state labor department regulations, or covenants, conditions and restrictions whether state, federal, local or private; and (ii) there has not occurred, nor has any person or entity alleged that there has occurred, upon the property, nor any parcel, any spillage, leakage, discharge or release into the air, soil,or ground water of any hazardous materials or regulated waste. 24. Final Settlement. It is agreed by and among the parties hereto that final settlement sh311 be held on the eighty-fifth (85th) month anniversary of Buyers' execution of this Agreement, or earlier, if Buyers exercise their right of prepayment, subject to the extensions permitted under paragraphs set forth above. TIME SHALL BE OF THE ESSENCE. Seller agrees that, at the time offinal settlement, Seller will furnish Buyers, upon payment ofthe principal ~d interest and balance then due and owing, a special warranty deed conveying good and marketable title to the premises to existing easements and restrictions of record, which deed has been executed by Seller prior to or contemporaneously with the execution of this Agreement, and which deed will be held in escrow by Barbara Sumple-Sullivan, Esquire, of New Cumberland, Pennsylvania. s 25. Buyers' Option to Take Title. In the event that Seller is unable to give a good and 15 t ~I - .,....,..-_.-.---- : ..I :'" I", "r ',,' "" ......i '''~ ""' """',$,,: -to 1", I ~ I) '. 'I \ .':J. " .~ marketable title subject to the previous conditions oftitle referred to hereinabove, Buyers shall have the option of taking such title as Seller is able to give, with an abatement of price, equal to the costs of correcting the title defect. 26. Litigation. Should any litigation be commenced between the parties hereto concerning said property, this Agreement, or the rights and duties of either in relation thereto, the party prevailing in such litigation shall be entitled, in addition to such other relief as may be granted, to a reasonable sum as and for their attorneys' fees in such litigation which may be determined by the Court in such litigation or in a separate action brought for that purpose. 27. Entire Agreement. This is the entire Agreement by and between the parties hereto and this Agreement shall be binding on and inure to the benefit of the successors, heirs, personal representatives and assigns of the parties hereto. Nothing in this paragraph shall be construed as a consent by Seller to any assignment of this Agreement. 28. Waiver. The waiver of any breach of this Agreement by either party shall not constitute a continuing waiver or a waiver of any subsequent breach, either the same or another provision of this Agreement. 29. Modification. No modification of this Agreement shall be ~inding upon the parties ~ hereto unless the same shall be in writing and duly executed by the Buyers and the Seller. 1 6 , - -.--- --_.- ,I ,1-' 1,-, : w' .', ~~ ,'''"......'u.. " '!M:; P I.' j" ~ , , I 30. No Existing Leases. Seller warrants that no portion of the premises are subject to any existing rental or lease agreements. IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, hereunto set their hands and seals the day and year first above written. wrmESSL ~' .f:k~ ern L. Wilson, Seller (SEAL) (SEAL) ) (SEAL) ) Karen L. Dunkle, Purchaser . 17 f .' I . ~ '. '.. ",' J ;1' " EXHIBIT "A" '"'~~~" ,.,-, ~ ~ J - J.. ),~ . " '~,(""i' , '. I . t- ,,.-n 'J" i ...."....,,,.~M" ~ ,"'~,~~,' ~...'r, .~=. ~ ~_.~,~_ ~",.".." ~ ~., _ ,....,',._~"v". ~ ~ ,I "< '~ ~'~'''''-'-' . 1 .. , , " u au"............. ~Pjt~ :;, .Made the (,,"N , in the year 1Jp.-u.L-- day of .Yineteen hundred and seventy-nine (1979) ~pittteen FERN,L. PARENTI) a/k/a FERN L. WILSON I single person, of ~' Cumberland, Cumberland County, Pennsylvania, GRANTOR, A N D FERN L. WILSON, single person, of New Cumberland, Cumberland County. Pennsylvania I GRANTEE. = . g:02 . _"'0 ~ ~,;~~ -~, ~:>>;: V'l oQ.... W. 'e:l"'C; ~ii "It ~~~ ~ %t:tSS.e.t ,That in consideration of One Dollar ($1.00) ----~~-~f;: , ~ = <.0 ~ ---------------------------------------- Vc)llars, in hand paid, the receipt whereof is hereby acknowledged, the said tr.aT"tor does hereby ~rQ,nt and convey to the said grantee, her heirs and assi~ns, ALL THAT CERTAIN lot or tract of land situate in the Borough of New Cumberland, Cumberland County, Pennsylvania, more particularly bounded and described iIl accordance with a survey by Michael C. DIAngelo, Registered Surveyor, date~ October 22, 1976, as follows, to wit: BEGINNING at a point at the northeast corner of Market Street and Fourth Street, said point being the point of intersection of the. external walls of buildirlgS Nos. 401 and 403; thence along the eastern line of Market Street, North 50 degrees 00 minutes West fifty (50) feet to a nai:1., being the southwest COrtLer of Lot No. 73; thence along the same North 40 degrees 00 minutes East one hundred five (105) feet to an iron pin; thence along lands now or formerly of George E. Pentz and through Lot No. 72, South 50 degrees 00 minutes East fi.fty (50) feet to an iron pin on the northern line of Fourth Street and on the extension line of the southern external wall of buildings Nos. 401 and 403; thence along said last mentioned line South 40 degrees 00 minutes West one hundred five (105) feet to the Place of BEGINNING. BEING the greater part of Lot No. 72 on the General Plan of the Borough of New Cumberland, Pennsylvania. HAVING thereon erected a two-story brick building known as and numbered 401-403 Market Street. BEING tHE SAME premises which Thomas A. Parenti -lnd Fern L. Parenti, his wife, by deed dated March 27, 1978, and recorded in Deed ]look US", Volume 27, -Page 244, in _the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, granted and conveyed unto Fern L. Parenti. The said Thomas A. Parenti and Fern L. Parenti were divorced under date of October 12, 1978, by Decree of the Court of Common Pleas of Dauphin County, Pennsylvania. to No. 1744-S-1978. The said Fern L. Parenti on October 20, 1978, elected to resume her maiden name of Fern L. W;lson. ~. 1'.' . ,,~,__ ..:..1_ ._ t... ;; T.l~ 1 ~_~ "'"._~...,'"i'"!'~~~',.....=7~.....~~~.>,,......,.~,."c.",,'"' ...,.::;,;,~_'."n.......,"'__.~_ " --. "!:lro~"""'l j'l I,ll II h" " ~ ~in ~ililnc!lf!5 ':tHltcn3lIf. ~ ~ ~~, and seal ...- ~~".""''''',Tl;l' , " .. the day and year first abot,'e written. said ~rantor ha S hereunto set her hand ~i9n.b, ~.nl.b nnll ~elin.r.ll ~n i:~~ 'r~!il'nt'~ IJE ~....ka'c 7/ ~ ~omm:;Jn'Ct~I1H~ Df l1ennal!I~:O.ni.C1 ~onnl11. o.~~ On thb:, the t;, ~ duy ul ~ the Ilndp.rsitned officer, personally appparn! a }.... If} 79 ,be/ore me a Notary PublicJ ... FERN L. PARENTIJ a/k/a FERN L. WILSON . . . _..{ ,,:_;:..j. ~i~>~.,-:.. '" known to me (or !lat1,8Itl(~torUy pro,'en) to be thp perstJr1 s whose namp. 1.5 R.~lJ~ A.1ii7Pi.ltKl'to. ..~ ' in.,tl'll1nent. and ack,~o/lJledded that she f',zecutp,d the Rame 101' the purpoRe?tJi~~u;..:~~ntciAi8g,.-?,:.\. IX W'ITK}""SS WIlEREOF, I have hereun.to Ret my hand and official f 3~al. .,~ "'~-~~, ~ ' : d ,-~ ~"l:." ~ - ..-%.;:t;A....,.'''''.''';,;;;' . ..... ::t,', ~~ "' 1 ~...~.., C;1Q r... \:iL. .JlI :.~.. _"~ l:~Id~":'I\G\~1\e.:,........." . "t'<<....., ~~. ,_~'~, '\,0,-'; ~ -=:~~:_"" .. ~ ~i4~~'~\' ~ ' ~llm"'..n"'.nll~ o. 1!=n&1l1nnnin ((>llU111a ... On trns, the duy 01 the undf!;rsitned otlicer, personally appeared } ....- 10 , b"lure me knuwn tu mt>{(Jr ,~(ltiHr(l('torily fJrm','n) to/n> th,. pprson WltfJSPe naml' Hubscribed ifl the withitt i,lNtrument. and a('k1wwlpdrJ"fl tiw! h,. ,.:rpp,utpd thp ,~ume lor tit,. fUtrpORe therein rf1n.tain~d" IN WIT~,-li:SS WHt'H,f.;OF, I ha,.'e hereunto ,~f!;t my hand~anfl seal. ~" ~ ~e~ (Ij:.trlif~ that the preci.e addre.. of the grantee herein i.s An, ./ New Cumbe~land, P~7070 / M::n"ket St1"fllP.t. t Jc ~~,..."....='"""'~." ~ '(', j I .' ;; ,. , ~, ~ .. .c EXHIBIT ;"1. .'" "B" ,. ", . t j; ><i~, , ' , " ,.. ~~ ""~,, ., _ ", "",.,.......~..,.....~~~~~.,'"..<r.""'-."..",.,,.,..,,~""""", ,.'T-""~~.?:"..,:!,.",.....~~.,.., ;" '(', 'j. " < 1..;.,,-,, L, , ' , :' ~;> , ',"'", ",,',,'," _..~~" t f 1 II I" ASSET PURCHASE AGREEMENT BY AND BETWEEN FERNROCK SNYDER, INC. AND McDUNK, INC. " t f ~ '--0 ,,' 'j ~ ,I '\ EXHIBIT "e" . I: ~t , ' "1!;;; .' , " ~~~i<_ ....' -,;- '. '. o ()J7 06 1999 Page '1 .; '- Wilson to McManus/Dunkle Compound Period .......: Monthly Nominal Annual Rate ... : Effective Annual Rate .. : Periodic Rate ..............: Daily Rate .................. : 5.250 % 5.378 % 0.4375 % 0.01438 % CASH FLOW DATA Event 1 Loan 2 Payment 3 Payment Start Date 06221999 0701 1999 07 01 2006 Amount Number Period -- End Date 265,000.00 1,785.69 201,290.48 1 84 Monthly 1 0601 2006 AMORTIZATION SCHEDULE - Normal Amortization Date Payment Interest Pr!ncipal Balance Loan 06 22 1999 265,000.00 1 0701 1999 1,785.69 343.05 1,442.64 263,557.36 2 0801 1999 1,785.69 1,153.06 632.63 262,924.73 3 09011999 1,785.69 1,150.30 635.39 262,289.34 4 1001 1999 1,785.69 1,147.52 638.17 261,651.17 5 11 01 1999 1,785.69 1,144.72 640.97 261,010.20 6 12011999 1,785.69 1,141.92 643.77 260,366.43 1999 Totals 10,714.14 6,080.57 4,633.57 7 01 01 2000 1,785.69 1,139.10 646.59 259,719.84 8 02 01 2000 1,785.69 1,136.27 649.42 259,070.42 9 03 01 2000 1,785.69 1,133.43 652.26 258,418.16 10 04012000 1,785.69 1,130.58 655.11 257,763.05 11 05012000 1,785.69 1,127.71 657.98 257,105.07 12 0601 20M 1,785.69 1,124.83 660.86 t 256,444.21 , 13 0701 2000 1,785.69 1,121.94 663.75 255,780.46 14 08 01 2000 1,785.69 1,119.04 666.65 255,113.81 1509012000 1,785.69 1,116.12 669.57 254,444.24 16 10012000 1,785.69 1,113.19 672.50 253,771.74 17 11012000 1,785.69 1,110.25 675.44 253,096.30 18 1201 2000 1,785.69 1,107.30 678.39 252,417 .91 2000 Totals 21,428.28 13,479.76 7,948.52 . \ 19 01012001 1,785.69 1,104.33 681.36 251,736.55 " 20 02 01 2001 1,785.69 1,101.35 684.34 251,052.21 21 03 01 2001 1,785.69 1,098.35 687.34 250,364.87 22 04 01 2001 1,785.69 1,095.35 690.34 249,674.53 23 05 01 2001 1,785.69 1,092.33 693.36 248,981.17 24 06 01 2001 1,785.69 1,089.29 696.40 248,284.77 25 07 01 2001 1,785.69 1,086.25 699.44 t 247,585.33 26 08 01 2001 1,785.69 1,083.19 702.50 t 246,882.83 . " . ;~ . t ~t r I, '. '. '.. #-: <'I- " ", n Wilson to McManus/Dunkle "" ,-1 I c:.' I, Last interest amount decreased by 0.01 due to rounding. .. J 1 ~~~~..-.."",",",",".,~=-~ ' ) . , 07 06 1999 P~ge 4 "$ t , .. J.lli_',..~ -~~. ~, ,.~ " ,I ",~, ,,,,,-- ",;,;,:/,',,,,,,J' -- "':',k'[~,',~,c;.,;..",;,.i:;i,:y,"~ -:.,1:., "'''-'', , "---.--,.;'.. ,,',': ,~ 0- ~ , , VERIFICATION I, Fern L. Wilson, hereby certifY that the facts set forth in the foregoing Document are true and correct to the best of my knowledge, information and belief. I understand that any false statements made herein are subject to penalties of 18 Pa. C.S.A. ~4904 relating to unsworn falsification to authorities. DATED: /0 /..i' ft~ , , ~~ M L. Wilson _~I ~,.J ,:"I~k~ '. I; 'Mtifrc., ^ . , . . FERNROCK-SNYDER, INC., Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : No. McDUNKS, INC., IRA J. McMANUS, JR., LESLIE J. McMANUS, JAMES R. DUNKLE, and KAREN 1. DUNKLE, Defendants : Civil Action AVERMENT OF DEFAULT I, Barbara Sumple-Sullivan, Esquire, being duly sworn according to law, deposes and states that she is authorized to make this Affidavit on behalf of Plaintiff; and that Defendants entered into the Installment Sales Agreement dated April 1, 1999, a true and correct copy of which is to the Complaint for Confession of Judgment filed in this action as Exhibit "B." Deponent avers that the payments due August 1, 2000, September 1, 2000 and October I, 2000 have not been paid and as such the pursuant to Paragraph 18a of the Agreement, Defendants are in default. Under the authority vested in Paragraph 18a of the Agreement, Plaintiff declares this Agreement terminated and possession of same is demanded. I hereby certifY that the facts set forth above are true and correct to the best of my knowledge, information and belief. I understand that any false statements made herein are subject to penalties of 18 Pa. C.S.A. ~4904 relating to unsworn f: Isification to authorities. Date: October 3, 2000 Barbara Sumple-Sullivan, Esquire Attorney for Plaintiff 549 Bridge Street New Cumberland, PA 17070-1931 (717) 774-1445 Supreme Court I.D. No. 32317 " , J',' J" ," ,I...~, ~ . "' . . ~~; " . Barbara Sump1e-SulIivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, P A 17070 (717) 774-1445 FERN 1. WILSON, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : No. 00-6778 IRA J. McMANUS, JR., LESLIE J. McMANUS, JAMES R. DUNKLE, and KAREN 1. DUNKLE, Defendants : Civil Action ORDER OF COURT AND NOW, this It <<. day of y\I1 } '7 , 2001, upon consideration of the attached letter from Barbara Sump Ie-Sullivan, Esquire., it is ordered and directed that argument in the above captioned matter shall be rescheduled to Monday, June 18, 2001 at 11:15 a.m., Courtroom No.1, Cumberland County Courthouse, Carlisle, Pennsylvania. Briefs shall be submitted at least one (1) week prior to argument. BY THE COURT, Lee Applebaum, Esquire FINERMAN & BACH, PC 1608 Walnut Street 19th Floor Philadelphia, PA 19103 Barbara Sump1e-Sullivan, Esquire 549 Bridge Street New Cumberland, P A 17070 Attorney for Plaintiff Sam Samuel 1. Andes, Esquire 525 North 12th Street P.O. Box 168 Lemoyne, P A 17043 IflNViilASNN3d I t hint"" (1\ ",r1Li:"~fln.:) I\-U\!\ IV...) '-.~! ..io "....----'c__, zs:s Ild ~ i ,WW ID . I"" 1".'" r . \: ":') ^tfvlCh\,jj'L:"I""';-,',:I,,,.~, l.l .J' 3:';!~c'C'-O:; li~ ~","~'-.-<.~,.I ~.. - . ~ , '~ ' ~.' ,,,,,,,,g,; PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and sul:mi.tted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter far the next 1\rgIrnent Court. ----------------------------------------------------------------__________________u____ CAPTION OF CASE (entiJ:e caption must be stated in full) Fern L. Wilson, (Plaintiff) 0 0 ~l c:: (.::,... -p :;c_ z -cJCJ <=> ,~-- n-lrr: 'c , ~.'!.j Z:1.:J i.-' zr- ;', i ~~ (J),> (.J'I -<...::::-- '"c.--, r-:;c:;' .,..~ ~."..' -c:J L -H 2>(") --"" ~, ze- e) >c r:? C' in Z ,:::> ):;! :< 0"> ~ '\IS . Ira J. McManus, Jr., Leslie J. McManus, James R. DunJ\:le and Karen L. Dunkle (Defendant) No. 6778 Civil 2000 H€ 1. State IIl8tter to be argued (Le., plaintiff's IlDtion for new trial. defencli:mt's danur:rer to canplaint, etc.): Defendant's Petition to Open Confessed ~Judgment 2. Identify counsel who will argue case: (a) for plaintiff: Barbara Sumple-SUllivan, Esquire Address: 549 Bridge Street New Cumberland, PA 17070-1931 " (b) for defendant: Anna Marie Sossong, Esquire Address: Skarlatos & Zonarich LLP 204 State Street Harrisburg, PA 1710l 3. I will notify all parties in writing within bio days that this case has been listed for argunent. 4. Argunent Court Date: December 06, 2000 Dated: November 14, 2000 b~~~ ~'="'_& , ,~~ -'_.,' ...~ "J.~ _....J~... II "<t'"'~. ] ~ ~" '~~IUl"~ ill ~ ~. '''''W,; . . . SKARLA TOS & ZONARlCH LLP Anna Marie Sossong, Esquire 204 State Street Harrisburg, PA 17101 (717) Z33 -1000 Attorney for Defendants FERN L. WILSON, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 00-6778 IRA J. McMANUS, JR., LESLIE J. McMANUS, JAMES R. DUNKLE and KAREN L. DUNKLE, Defendants CIVIL ACTION PRAECIPE TO THE PROTHONOTARY; Kindly substitute the attached original Verifications of Ira J. McManus, Jr., Leslie McManus, James R. Dunkle and Karen 1. Dunkle, with the attorney's Verification that is presently attached to Defendants' Petition to Open Default Judgment. s Dated: I Z- f.R 00 By: ~ Anna Marie Sossong, Esq ID # 32808 204 State Street Harrisburg, PA 17101 (717) 233-1000 Attorney for Defendants _.~~~ ~... ~ -- , " ...."~"'''''' VF.RTFTC' A nON I, ::r flA 1. Yn.", (hp,fJJ:i. s.; hereby certifY that the facts set forth in the following Petition to Open Default Judgment are based upon information which I have furnished to counsel, as well as upon information which has been gathered by counsel and/or others acting on my behalf in this matter. The language in the Petition to Open Default Judgment is that of counsel and not my own. I have read the Petition to Open Default Judgment, and to the extent it is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the Petition to Open Default Judgment is that of counsel, the I have relied upon counsel in making this Verification. I hereby acknowledge that the facts set forth in the aforesaid Petition to Open Default Judgment are made subject to the penalties of 18 Pa.C.S.A. ~904 relating to unsworn falsification to authorities. Dated: II, 2~ cuO ~ ~/ Ira J. McManus, Jr.- P /" 'll! ~,~.~ - L ~~ L , ~::!l!i,"!, Vlf.RTFJCA. TJON I, L.eBu E: ~C!.J-1f!-Uu.~ hereby certifY that the facts set forth in the following Petition to Open Default Judgment are based upon information which I have furnished to counsel, as well as upon information which has been gathered by counsel and/or others acting on my behalf in this matter. The language in the Petition to Open Default Judgment is that of counsel and not my own. I have read the Petition to Open Default Judgment, and to the extent it is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the Petition to Open Default Judgment is that of counsel, the I have relied upon counsel in making this Verification. I hereby acknowledge that the facts set forth in the aforesaid Petition to Open Default Judgment are made subject to the penalties of 18 Pa.C.S.A. S4904 relating to unsworn falsification to authorities. Dated; ~Q::) ~- .~....~~~ ,".~' , ~~ .. --" - , ~ ~.~, < d. oL - .4.:;\~, VRRTFIl:A TTON 1,- ~~-e~":<..~v\\t..~oLherebY certifY that the facts set forth in the following Petition to Open Default Judgment are based upon infonnation which I have furnished to counsel, as well as upon infonnation which has been gathered by counsel and/or others acting on my behalf in this matter. The language in the Petition to Open Default Judgment is that of counsel and not my own. I have read the Petition to Open Default Judgment, and to the extent it is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the Petition to Open Default Judgment is that of counsel, the I have relied upon counsel in making this Verification. I hereby acknowledge that the facts set forth in the aforesaid Petition to Open Default Judgment are made subject to the penalties of 18 Pa.C.S.A. ~4904 relating to unsworn falsification to authorities. Dated: \ \ \"U. ~ ~~~.. R. Dunkle --'. 11- L '-" . ~" ~ u.w VRRmTC'A TTON I, 'K M .. \1\ '- ~"'" v::: Le ,hereby certifY that the facts set forth in the following ) Petition to Open Default Judgment are based upon information which I have furnished to counsel, as well as upon information which has been gathered by counsel and/or others acting on my behalf in this matter. The language in the Petition to Open Default Judgment is that of counsel and not my own. I have read the Petition to Open Default Judgment, and to the extent it is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the Petition to Open Default Judgment is that of counsel, the I have relied upon counsel in making this Verification. I hereby acknowledge that the facts set forth in the aforesaid Petition to Open Default Judgment are made subject to the penalties of 18 Pa.C.S.A. S4904 relating to unsworn falsification to authorities. Dated: ttJ-Z-r.,J00 '~'/L /;/ f)'11 A tc.-' Karen L. Dunkle ;il~ I_~ . ',"""",,,-- ,~~ ~-~." ~ .~, 1 '~"'>i '~=~.J ~~l';l1;j., SKARLATOS & ZONARICH LLP Anna Marie Sossong, Esquire 204 State Street Harrisburg, PA 17101 (717) 233 - 1000 Attorney for Plaintiff FERN L. WILSON, Plaintiff. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 00-6778 IRA J. McMANUS, JR., LESLIE J. McMANUS, JAMES R. DUNKLE and KAREN L. DUNKLE, Defendants CIVIL ACTION CERTIFICATE OF SERVICE I, Anna Marie Sossong, attorney for Defendants, Ira J. McManus, Jr., Leslie J. McManus, James R, Dunkle and Karen L. Dunkle, hereby certifY lbat I this day personally served a copy of the foregoing PRAECIPE upon lbe person(s) indicated below by hand delivery: Barbara Sumple - Sullivan, Esquire Attorney for Plaintiff, Fern L. Wilson S LLP Dated: '"2..,~OO By: Anna Marie Sossong, Esqu ill # 32808 204 State Street Harrisburg, PA 17101 (717) 233-1000 Attorney Defendants ~","'-"-~~=. I , , IIlifjM:;j!ll~;:i FERN 1. WILSON, Plaintiff, v. : IN THE COURT OF COMMON PLEAS ; CUMBERLAND COUNTY, PENNSYLVANIA : NO. 00-6778 IRA J. McMANUS, JR., LESLIE J. McMANUS, JAMES R. DUNKLE and KAREN L. DUNKLE, Defendants : CIVIL ACTION ORDER OPENING CONFESSED .JUDGMENT AND NOW, this day of ,2000, upon consideration of defendants' petition to open confessed judgment, it is hereby ORDERED that the rule to show cause of October 3, 2000 is made absolute and the judgment by confession of October 3, 2000 in the above captioned matter is opened in whole. It is further ordered that trial on the open judgment be scheduled for the day of , 2000, in at _.m., upon the following issues: 1. The Agreement was based on misrepresentations and falsification of information relevant to its purchase. /'" ~--C~ ~~ \c ~ ~r'k \, ~--C0v\ \--' ~cr\G~ I By the Court: J. :"~M""" .1.__ '"H j ..:.. U>-.I -~. ~- , '~ ~~;;;:'i , FERN 1. WILSON, Plaintiff, v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 00-6778 IRA J. McMANUS, JR., LESLIE J. McMANUS, JAMES R. DUNKLE and KAREN L. DUNKLE, Defendants CIVIL ACTION DEFENDANT'S PETITION TO OPEN CONFESSED JUDGMENT Defendant, Ira McManus, Jr., Leslie J. McManus, James R. Dunkle, and Karen L. Dunkle, by and through their attorney, Anna Maria Sossong and the law firm of Skarlatos & Zonarich, UP, respectfully petition this Court to open the confessed judgment under Pa.R.C.P. 2959, and in support states as follows: 1. Plaintiff, Fern 1. Wilson, commenced this action on October 3, 2000 by Complaint to Confess Judgment against defendants upon an Installment Sales Agreement (hereinafter "Agreement") containing a warrant of attorney. A true and correct copy of the complaint is attached as Exhibits "A." 2. Neither the complaint nor the confession of judgment filed with the complaint contains an itemized computation of the amount due at the time of filing as required by Pa.R.C.P. No. 2952(a)(7) and 2955(a). 3. Defendants assert that the sale was predicated upon fraudulent information, including misstatements of payroll and fraudulently prepared financial records. 4. At the time the Defendants executed the Agreement, Defendants did not know that the Plaintiff misrepresented material facts that would have been pivotal in the decision to sign the Agreement. if ]~ I ._1 ~- . I ~ __ ~, ~ll'<i: . 5. Plaintiff had paid a number of employees ''under the table" which increased the out-of-pocket costs to the Defendants by over $1,000 per week. This information had never been conveyed to the Defendants prior to their signing of the Agreement. 6. In addition, Defendants have received information that Plaintiff artificially increased the sales volume shown on the financial records of the business prior to Defendants purchase. 7. The Pennsylvania Superior Court has held that a petition to open confessed judgment shall be granted when there is "clear, direct, and precise and 'believable' evidence." Subirban Mechanical Contractors. Inc. v. Leo. 502 A.2d 230 (1985). 8. This petition has been filed promptly after notice of the entry of judgment by confession. WHEREFORE, Defendants, Ira McManus, Jr., Leslie J. McManus, James R. Dunkle, and Karen 1. Dunkle, respectfully requests that this Court open the judgment by confession of October 3, 2000 in the above-captioned matter. Date: By: Anna Marie Sossong, Esq . ID # 32808 204 State Street Harrisburg, PA 17101 717-233-1000 Attorney for Defendants :<j~' --- - - ~" ~o........~ , , . VERIFICATION COMMONWEALTH OF PENNSYLVANIA ) ) ) ss: COUNTY OF DAUPIllN BEFORE ME, the undersigned authority, duly authorized to administer oaths and take acknowledgments, personally appeared Anna Marie Sossong, Esquire, who deposes and says that she is Counsel to Defendants, Ira J. McManus, Jr., Leslie J. McManus, James R. Dunkle, and Karen 1. Dunkle, and as such is authorized to make this Verification on their behalf, and states that the statements made in the foregoing Defendant's Petition to Open Confessed Judgment, are based upon information which has been furnished to me by my clients, as well as upon information which has been gathered by me and/or others acting on my behalf in this matter, which is true and correct to the best of my knowledge, information and belief. I hereby acknowledge that the facts set forth in the aforesaid Petition to Open Confessed Judgment are made subject to the penalties of 18 Pa.C.S.A. ~4904 relating to unsworn falsification to authorities. ~RN ~d SUBSCRIBED before me in the State and County aforesaid this I :<:t-- day of (J2 'Jlj).J ,~600 Notary Public / Q (SEAL) My Commission Expire : 'rJ t{ ) !J 0 n -=-,~ "COMMISSION EXPIRES JUlY 5 .. ,..1 ~l ~.~,' . . FERN 1. WILSON, Plaintiff, v. - I" . ,~.L~ : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 00-6778 IRA J. McMANUS, JR., LESLIE J. McMANUS, JAMES R. DUNKLE and KAREN 1. DUNKLE, Defendants : CIVIL ACTION CERTIFICATE OF SERVICE I, Anna Marie Sossong, Esquire, attorney for Defendants, Ira J. McManus, Jr., Leslie J. McManus, James R. Dunkle, and Karen 1. Dunkle, hereby certify that I this day served a copy of the foregoing Petition to Open Confessed Judgment upon the person(s) indicated below by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, and addressed as follows: Dated: #- Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, Pennsylvania 17070-1931 SKARLATOS AND ZONARICH By: Anna Marie Sossong, ID # 32808 204 State Street Hanisburg, PA 17101 717-233-1000 Attorney for Defendants I Jll , '~-~!Mtl-i --, ,,'\1:il.1~ ~W'.la.L ~- ~-I. ~~" I ,~I "' - _1liilII "1!Oi'#.:-, .# , FERN L. WILSON, Plaintiff, v. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 00-6778 IRA J. McMANUS, JR., LESLIE J. McMANUS, JAMES R. DUNKLE and KAREN 1. DUNKLE, Defendants : CIVIL ACTION QRDER OPENING CONFESSED JUDGMENT AND NOW, this day of , 2000, upon consideration of defendants' petition to open confessed judgment, it is hereby ORDERED that the rule to show cause of October 3, 2000 is made absolute and the judgment by confession of October 3, 2000 in the above captioned matter is opened in whole. It is further ordered that trial on the open judgment be scheduled for the day of ,2000, in at _.m, upon the following issues: 1. The Agreement was based on misrepresentations and falsification of information relevant to its purchase. By the Court: '" J. ""'""IIlIlo L"", ,__I , ( 'Ii~Wi.;" ~ , FERN L. WILSON, Plaintiff, v. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 00-6778 o o 1'-) ~ IRA J. McMANUS, JR., LESLIE J. McMANUS, JAMES R. DUNKLE and KAREN 1. DUNKLE, Defendants o c :;:: -oUl rnm z::n ZC ({)Z ~o ~o --0 DEFENDANT'S PETITION TO OPEN CONFESSED .JUDGME~ Defendant, Ira McManus, Jr., Leslie J. McManus, James R. Dunkle, and Karen L. CIVIL ACTION - - S -- 1 f".) ':--". , ~ "';'"1 <'!:? ? -0 ~ r;? . ,'--~' -Tj ~i~~ , , ''=---I 5J -< rv Dunkle, by and through their attorney, Anna Maria Sossong and the law firm of Skarlatos & Zonarich, ILP, respectfully petition this Court to open the confessed judgment under Pa.R.C.P. 2959, and in support states as follows: 1. Plaintiff, Fern L. Wilson, commenced this action on October 3, 2000 by Complaint to Confess Judgment against defendants upon an Installment Sales Agreement (hereinafter "Agreement") containing a warrant of attorney. A true and correct copy of the complaint is attached as Exhibits "A." 2. Neither the complaint nor the confession of judgment filed with the complaint contains an itemized computation of the amount due at the time of filing as required by Pa.R.C.P. No. 2952(a)(7) and 2955(a). 3. Defendants assert that the sale was predicated upon fraudulent information, including misstatements of payroll and fraudulently prepared financial records. 4. At the time the Defendants executed the Agreement, Defendants did not know that the Plaintiff misrepresented material facts that would have been pivotal in the decision to sign the Agreement. .!i..dl:dl. ~ ~l ~~. 1......... - , - ~ " , ~~'~ :JIiiIW!>1 I 5. Plaintiff had paid a number of employees "under the table" which increased the out-of-pocket costs to the Defendants by over $1,000 per week. This infonnation had never been conveyed to the Defendants prior to their signing of the Agreement. 6. In addition, Defendants have received infonnation that Plaintiff artificially increased the sales volume shown on the financial records of the business prior to Defendants purchase. 7. The Pennsylvania Superior Court has held that a petition to open confessed judgment shall be granted when there is "clear, direct, and precise and 'believable' evidence." Subirban Mechanical Contractors. Inc. v. Leo. 502 A.2d 230 (1985). 8. This petition has been filed promptly after notice of the entry of judgment by confession. WHEREFORE, Defendants, Ira McManus, Jr., Leslie J. McManus, James R. Dunkle, and Karen L. Dunkle, respectfully requests that this Court open the judgment by '- ro'""",,, ,.f "''''''''' 3, 2000 m tI< ""'~- """", /7 I . Date: By: W~ Anna Marie Sossong, Esq . ID # 32808 204 State Street Harrisburg, PA 17101 717-233-1000 Attorney for Defendants ,'..... itlP"~-I........._ - ~' ~ ~ ~'.- ..... " ~ ,....- '~f~;"i ; VERIFICATION COMMONWEALTH OF PENNSYLVANIA ) ) ) ss; COUNTY OF DAUPlllN BEFORE ME, the undersigned authority, duly authorized to administer oaths and take acknowledgments, personally appeared Anna Marie Sossong, Esquire, who deposes and says that she is Counsel to Defendants, Ira J. McManus, Jr., Leslie J. McManus, James R. Dunkle, and Karen L. Dunkle, and as such is authorized to make this Verification on their behalf, and states that the statements made in the foregoing Defendant's Petition to Open Confessed Judgment, are based upon information which has been furnished to me by my clients, as well as upon information which has been gathered by me and/or others acting on my behalf in this matter, which is true and correct to the best of my knowledge, information and belief. I hereby acknowledge that the facts set forth in the aforesaid Petition to Open Confessed Judgment are made subject to the penalties of 18 Pa.C.S.A. ~4904 relating to unsworn falsification to authorities. '- , ~RN J:;.;:t SUBSCRIBED before me in the State and County aforesaid this E1- day of a2 . 'JeA J ;~DX:> Notary Public / J 3 (SEAL) My Commission Expire . '1 t;!) n NOTAJlIA!.SEAI. lIANIlI.M. HAR1IlAIIIlOTAIII' PIlIlI.IC HARRlS8URG, _IN COUNtY MY COMMISSION EXPIRES JUlY 5, 2Oll3 ~_' .r. J_. L~ """""'c , -- --~ ~~~ ! /l' '. ..oiL ""~#i",K .. FERN 1. WILSON, Plaintiff, v. ; IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 00-6778 IRA J. McMANUS, JR., LESLIE J. McMANUS, JAMES R. DUNKLE and KAREN L. DUNKLE, Defendants : CIVIL ACTION CERTIFICATE OF SERVICE I, Anna Marie Sossong, Esquire, attorney for Defendants, Ira J. McManus, Jr., Leslie J. McManus, James R. Dunkle, and Karen 1. Dunkle, hereby certifY that I this day served a copy of the foregoing Petition to Open Confessed Judgment upon the person(s) indicated below by depositing a copy .of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, and addressed as follows: Barbara Sump1e-Sullivan, Esquire 549 Bridge Street New Cumberland, Pennsylvania 17070-1931 SKARLATOS AND ZONARICH Dated:~ By: .., Anna Marie Sossong, ID # 32808 204 State Street Harrisburg, PA 17101 717-233-1000 Attorney for Defendants " ;./ '!,)J-"'" ; "II"~j;J )Jpi" ,r' ( I 't'_:(%~'''ti:.~~:;I;;Y=,*Qml~J@\f,>u;?!':,,,r;ct}-''''?~ ~i@""..=s-:~=~"^,,.w;)ifffi~.>-',,' ,",,,,",,,,,,,,,,,,-,,,,,,,",.,J,,.,__ II Q., ...l a ...l - " ~ < U ~ ~ ~ w z < w < ~ . > r r ~ < (J) > ~ ~ ~ w z > r z w z < W ol:l ~ " (J) lL "'" 0 .,- ~ r .. r a . < '" 0 m ~ . . < "'" I I. ~ :J tT 0 en I'- LU 0 I'- C ..- '" .2: "S c: en _ . , al"O alalC Co....'" E Ci5 Qj :Jal.Q en OJ E ~ :g U:J "'OJ -em:;: '" ~ al OJ ",2 ~~%t~1.W~~~-m.~~r~~TG~~ ~/ / ( "'"'c,_' "g"""~I'''_~~'I''''A'''",'''''''' - iN.\W",,,,-"Q;' ,'t<~4...~0-"iI:i=~'4"''''''-'!!~i,~,-!'''t''.~',,,,,,,, '11'" . ' I Q. ...:1 0 ...:1 " ~ f- < ~ ~ W Z < W < ~ " > f- f- ~ < <Jl > ~ ~ ~ W Z > f- Z W Z < W otl f- " <Jl <L ~ 0 ~ .. <5 < 0 " OJ 0 . ~ " " < "'" I 1- Cl. .....J .....J .r: U 'C caW.....~ 5-'gJ<( NO ...." 0-..... o<l_U) - UlZ<1le> o - ~ ..... .. CO.o CIl .- "C Z U) .!!l cal-~ C: -"'l-oCll U)<(NI ~ o ~ f'- .iil!si<~iftf~~i&~~~~~~~~m~.Jj .M! ~I "I' MHtUJ'HniJllii!rfJI"i III Lr l 'Lu it ~1ill!!!li!.!!L:!(" "r~' ",fJ;JIf~,)l:,:::=:;::::;""~~.~,,:~", " . -' FERN 1. WILSON, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : No. 00-6778 v. IRA J. McMANUS, JR., LESLIE J. McMANUS, JAME~ R. DUNKLE, and KAREN 1. DUNKLE, , Defendants : Civil Action BRIEF IN OPPOSITION OF PETITION TO OPEN DEFAULT JUDGMENT STATEMENT OF FACT: On April 1, 1999, two separate business agreements were executed which involved the sale of certain business assets used in the operation of a bar and restaurant business, as well as certain real estate which housed the bar/restaurant operation. The real estate transaction was an Installment Sales Agreement which occurred by and between Fern 1. Wilson, owner of the real estate located at 401-403 Market Street, New Cumberland, Pennsylvania, and Ira J. McManus, Jr., Leslie McManus, James R. Dunkle, and Karen 1. Dunkle for sale of the real estate. The terms of the sale were set forth in an Installment Sales Agreement which is attached to this Brief as Exhibit "A". The second transaction was the sale of certain assets by the corporation, FemRock-Snyder, Inc. to McDunks, Inc. That transaction provided for transfer of specific assets. Those assets conveyed pursuant to that transaction were a PLCB license valued at $70,000.00; certain physical assets in "as-is" condition valued at $45,000.00; liquor and alcohol beverage inventory at cost; and the fictitious name, "Pete's Cafe" and any good will at a value of $15,000.00, It is specifically noted this latter transaction neither consisted ofthe sale of business, any stock transfer, transfer of employee contracts, or any other business situation. The sale was asset transfer only. ,,-,.1 ,,, '. , '~ '~'1','. ~ Regarding the real estate transfer, title to the real estate would only transfer when full satisfaction of the entire purchase price was paid. Title to all other assets transferred at closing, which occurred June 22, 1999. However, certain security rights regarding the stock of the McDunks, Inc. were, i~ fact, reserved to protect the Seller in retrieving the liquor licen~e in the event of default in payment. Also, personal guarantees for the payment of the moneys owed by McDunks, Inc. were made by the McManus and Dunkles individually. The terms of bQ_th agreements included Sellers' financing. The sales price for the sale of the real estate was Two Hundred Ninety-Five Thousand Dollars ($295,000.00). The terms of the financing are set forth in Paragraph 3 of that Agreement but included a Thirty Thousand Dollar ($30,000.00) down payment with the balance amortized over twenty (20) years and paid in eighty-four monthly equal installments of One Thousand Seven Hundred Eighty-Five Dollars and 69/100 ($1,785.69) and a balloon payment of Two Hundred Two Thousand Four Hundred Sixty-eight Dollars and 41/100 ($202,468.41). The sale price for the assets was One Hundred Thirty Thousand Dollars ($130,000.00). The financing terms for this transfer are set forth in Article 2 of that Agreement but included a down payment of Fifteen Thousand Dollars ($15,000.00) with the balance of One Hundred Fifteen Thousand Dollars ($115,000.00) amortized over a twenty (20) year period with a balloon payment on the eighty-fifth (85th) month. The interim eighty-four (84) equal installments were Seven Hundred Seventy-Four Dollars and 92/100 ($774.92). A copy of the Asset Purchase Agreement is attached to the brief \ of Petitioners as Exhibit "B". The result of the two transactions was that the Buyers obtained assets valued Four Hundred Twenty-Five Thousand Dollars ($425,000.00) with a down payment of Forty-Five Thousand Dollars ($45,000.00) and promises to make monthly payments and 2 ---- ~..,.. .n,,,',n." - _:,c perform certain other obligations, including payment of insurance, taxes, etc. As indicated below, Buyers in neither transaction have met the obligations undertaken pursuant to their Agreements. As time ensued, the Buyers in both transactions consistently failed to make timely payment, made payment with insufficient fund checks and ultimately made no payment. They also failed to carry appropriate insurance and timely pay taxes. The specifications of the non- payment were specifically plead in the complaints for confession. As a courtesy and in the hopes of rectifYing the situation, advance written notices of default were given to Buyers on June 9,2000 in an effort to ensure all were aware of the conditions of non-payment although such notice was not required. However, no change in payments occurred. Thereafter, payments were made with a bad check or not made at all. In fact before the filing of the confessions, the last "good" payment made on the business was in July, 2000. On or about October 3, 2000, after receiving no payments on either agreement, FemRock-Snyder, Inc. and Fern 1. Wilson, exercised their contractual rights to confess judgment in accordance with the remedies contained in the Agreements. Two actions were commenced on October 3, 2000. The first was captioned, Fern Rock-Snyder, Inc v McDunks, Inc., Ira J. McManus, Jr., Leslie J. McManus, James R. Dunkle, and Karen L Dunkle was filed to Docket No. 00-6777 in the Court of Common Pleas of Cumberland County. This action was for a money judgment consistent with the terms of the Asset Purchase Agreement and the personal guarantees by McManus and Dunkles. The second action, captioned Fern 1. Wilson v. Ira J. McManus, Jr., Leslie J McManus, James R. Dunkle, and Karen 1. Dunkle and filed to 3 !.1l!LQLiI,d! _ Jli I [Iflllr H~~.itlClD.[li~IU iLt1lltc ~'~~'u..\I' ~ ITlIJ'A"~ f-" ~ ." i\"-'l'~'!l!~'!'.!' .... . !!! __ . __~ ~ E i !!!!!L!!!L!! "~"'~'~HI'i'.?J.':i,ll!ti Ull; -' Docket No. 00-6778 in the Court of Common Pleas of Cumberland County, which is the present captioned action, included a confession of judgment for possession of the real estate. Thirty day Notice of Judgment and Execution pursuant to Pa.R.Civ.P. 2958.1 and 2973.2 were given. Service by certified m~il was made on counsel for the Buyers on October 5 and 6, 200~ After failing to successfully serve all individuals and entities by certified mail, personal service was effectuated on all named Defendants on October 25, 2000. No challenge has been filed to the action captioned to No. 00-6777. That confession consisted ofa money judgment in the amount of One Hundred Twenty-Three Thousand Eight Hundred Two Dollars and 43/00 ($123,802.43), plus cost. On or about November 1,2000, Petitioners filed a Petition to Open Confessed Judgment in the current action. The matter has been listed for argument; however, no rule has ever been issued by the court in accordance to Pa.R.Civ.P. 2959(b) for Respondent to show cause why the relief should or should not be granted. It is this listing which is for argument today. ARGUMENT: I. THE FAILURE OF THE COURT TO FIND A PRIMA FACIE CASE PRECLUDES THE OPENING OF THE JUDGMENT FOR POSSESSION. Pursuant to Pa.R.Civ.P. 2959(b), upon a petition for opening of a confession of judgment is filed, the court is required to examine the contents of the pleading to make a prima facie determination if a Rule to Show Cause should be issued. Ohio Pure Foods, Inc v Barbe, 548 4 ~~~J~~~~,:~';'~!~!l~~.JnLill~"~'-~~~i{ -i ll~~" ~:"hU-t'\dk~,~~:~~~~~~~~i~;~:ji~;:' -- Pa. 373, 697 A.2d 252 (1997). If such grounds do not exist, the court may not issue a rule to show cause why the confessed judgment should not be opened. The Superior Court in Pittsburgh v. Allegheny County Distributors, Inc, 339 Pa. Super. 109,488 A.2d 333 (1985) determined that this threshold must bemet before the other procedures are to take place. In this matter.;:it is believed and averred that this Court has not made a prima facie determination of cause for opening since no Rule has issued or ever been served on the Plaintiff, Fern 1. Wilson. Hence, in review, no factual response is required and the Petition should be dismissed. Ifthe Court chooses to correct any-defect in the action deeming the failure to issue a rule to be procedural rather than substantiative, then a rule should be issued to which a verified answer can be filed prior to any determination of whether the judgment should be opened. ~ II. PETITIONERS HAVE FAILED TO PLEAD A PRIMA FACIE CASE FOR THE ISSUANCE OF A RULE. Petitioners have attempted to stave off a judgment for possession of the real estate by Fern 1. Wilson on the theory that Fern 1. Wilson, as President of FemRock-Snyder, Inc., allegedly made misrepresentations of payroll and past financial corporate records reviewed at the time of contract for the sale of assets used and useful in the operation of a business. It must be noted that this present action has nothing to do with the sale of the business assets. This is an action on the Installment Sales Agreement for the sale of real estate, which agreement is significantly in default and, pursuant to the terms of the agreement, possession is mandated. Further, since April 1, 1999, and continuing until the filing of the Confessions of Judgment in both actions, it is crucial to note that there was NEVER any allegation or even 5 .1 ". I I . - ,^ - ~hi ~ mention made by the Buyers in either transaction of fraud or any type of misrepresentation. Even after a notice of the default and in response to various calls seeking payment, the alleged issues of fraud and misrepresentation were never raised. Only after the confessions of judgment were of record and a meeting occurred on October 25, 2000, was any mention made by the Buyers that they believed that they had somehow been wronged in the transaction. In the brief filed at page 2, it is averred that the Defendants have refused to pay since July, 2000 due to alleged fraudulent actions. This is totally incorrect. Multiple promises had been made by James R. Dunkle that paymel}~ was to be forthcoming. Also, as evidenced by Exhibit "D" attached to the Confession of Judgment Complaint, an actual payment was made on August 27,2000. Unfortunately, that check was returned for insufficient funds. Another payment was tendered after the confession on October 6, 2000. Hence, the validity of these allegations that no payments were tendered because of fraud and misrepresentation are untrue. It is believed that Petitioners are without the means to satisfY the Agreement while retaining control of the assets. Such a situation imposes significant prejudice and hardship to the Sellers and must not continue. Finally, even if any fraud allegations could be sustained, it is irrelevant to both transactions since the transactions contemplated are asset transfers. This judgment deals with possession of real estate which is being transferred pursuant to an Installment Sales Agreement. The allegations of fraud and misrepresentation on employee matters are clearly irrelevant. It is further noted that, even if Petitioners had tried to open the judgment docketed to Docket No. 00- 6777 which dealt with the confession of the qloney judgment, there is no prima facie case plead to support the opening in light of the Agreements appended. The Agreement was for asset transfer and there is not a single allegation that the license was not transferred, that the "as-is" 6 -- _...'-," , ~ ,-- ~ j-u-r1 ,_1,1". "[ il I , ~. ,'. ~ltm~J~t ,riJ,,!)i' ~'II ~LIl~.I,1l,uJ~lrlll\tin'!Ll,:,.lU.i nLJkL~r!l\!~t"..L~~Li"' assets were not received; that the fictitious name and good will were not transferred. There is no allegation that the Petitioners did not receive what it legally contracted for. Since the Asset Purchase Agreement made no representation of transfer of employee contracts, guarantees of payroll, or other corpo}ate business transaction, the allegations of misrepresentation ol1..these issues alone are irrelevant and insufficient to open up the judgement confessed in accordance with the terms of the Agreement and the law. In light of the above, it is asserted that a rule should not even be issued for response by Fern 1. Wilson in this matter or in any other docket and the confessed judgments should not be opened. There is no way that the Petitioners have plead or can ever plead any possible defense to all or part ofthe confession sums. Alternatively, in the event that the court determines that a rule should issue pursuant to Pa.R.Civ.P. 2959 (b), Fern 1. Wilson should be given an opportunity to respond and the matter of opening should occur only after appropriate depositions, affidavits, and other discovery. However, Petitioners should be made to plead with clarity and relevance the basis of its charge to the real estate contract, supported with a properly verified pleading. It is asserted that even the verification on the petition, as made by counsel, is insufficient and does not comport with the requirements ofPa.R.Civ.P. 1024. Hence, it is requested that the Petition be denied even without the issuance of the appropriate rule and said Petition be stricken. Dated: December 1,2000 Bar ara Sumple-Sullivan, Esquire Attorney for Plaintiff 549 Bridge Street New Cumberland, P A 17070-1931 (717) 774-1445 Supreme Court I.D. No. 32317 7 ..,,-, '.'li'lf, EXHIBIT nAn ~ "" I I ",~" '. ~',' ~, ..., '~"',, :,!" ..~ 1~ ~ ,,' ~ ~~ lMth; . 1', " 1 .. .. " ^ . .J'.I ~l , --' INSTALLMENT SALES AGREEMENT THIS AGREEMENT made this / 6r day of Ii P;el L , 1999, by and between FERN L. WILSON, of New Cumberland, Cumberland County, Pennsylvania (hereinafter referred to as "Seller") and lRA J. McMANUS, JR. And LESLIE J. McMANUS, his wife, ofMalaga, New Jersey and JAMES R. DUNKLE and KAREN 1. DUNKLE, his wife, of Camp Hill, Pennsylvania (hereinafter referred to as "Buyers"). WITNESSETH: WHEREAS, Seller is presently the owner of a certain parcel of real estate known as 401-403 Market Street, New Cumberland, Cumberland County, Pennsylvania (hereinafter referred to as the "Premises"), which premises are more particularly bounded and d~escribed in Exhibit "A"; WHEREAS, Seller agrees to sell and Buyers agree to purchase said Premises under and subject to the terms and conditions set forth herein; WHEREAS, Buyers are additionally purchasing from FernRock-Sny~er, Inc., a Pennsylvania corporation of which Seller is the principal, certain assets used and useful in operation of a bar, restaurant and catering business known as Pete's Cafe, which Agreement is attached hereto as Exhibit ..' ,""., " " .' """,',"". ,F,"..,.-,-r-,.-.-:,,_...,,'- "~.-"-'-" "" ---',. -T' ."-- '^ ,___._.,~ __~_._ ..._"-,-- '.-,'--.._~""7'.~ :=' - ~ I.... 1- ~..J . .ll.jjl~lI;";_~Ii" Ii I,. j , ~ . , I . ". , " ~ "B" and incorporated herein by reference; WHEREAS, purchase of real estate by Buyers pursuant to this Agreement is contingent upon successful consummation of Buyers' purchase of said assets of Pete's Cafe and complete satisfaction . - of all payments due pursuant to said Agreement attached as Exhibit "B"; NOW TIiEREFORE, in consideration of the mutual covenants contained herein and intending to be legally bound hereby, the parties hereto, on behalf of themselves, their heirs, successors and assigns, agree as follows: 1. Incorporation of Recitals. The recitals set forth in the above whereas clauses are incorporated herein as substantive provisions of the parties' agreement. 2. Real Estate. The Seller agrees to sell and the Buyers agree to purchase all that certain premises situate in the Borough of New Cumberland, Cumberland County, Pennsylvania, as more specifically described in Exhibit "A" attached hereto and incorporated herei.n by reference. 3. Purchase Price. The purchase price to be paid by the Buyers shall be the sum of Two Hundred Ninety-five Thousand ($295,000.00) Dollars, to be paid as follows: (a) Thirty Thousand ($30,000.00) Dollars upon Closing of the parties' business asset acquisition of Pete' s Cafe as set forth in Article 10 of the Asset Purchase Agreement 2 ~, .~~" ,:.,~~,.<"~",,,,"', '." ,.~,~-,:--~~.""'7'-.,.-;-<",.",-----,...,.----,...,-...----'--' ,,,. ~ :, J .. ~~~ .'lwii;,j . , .1 , . '. ,. ( -;" attached as Exhibit "B". (b) The principal sum of Two Hundred Sixty-five Thousand ($265,000.00) Dollars shall be paid. in eighty-four (84) equal monthly installments subject to the adjustrpent as set forth in paragraph (c) hereof Interest shall be at the prevailing applicable federal rate (mid term) at time of Closing but not less than 5.25% amortized over a twenty (20) year period. A balloon payment shall be due for the remaining balance on the first day of the eighty-fifth (85th) month following Closing as defined in Article 10 of the Asset Purchase Agreement attached as Exhibit "B". Specifically, assuming an interest rate of 5.25%: (1) Monthly payments of One Thousand Seven Hundred Eighty-five and 69/100 ($1,785.69) Dollars for eighty-four (84) payments with the first payment being due on the first day of the first calendar month following Closing and on every first day of the next eighty-four (84) months. If any payment is not made by the tenth (10th) day of the month, Buyers sha1l pay an additional five (5%) percent?fthe monthly payment due as penalty. Said late charge shall be paid by Buyers to Seller with the monthly installment due and owing. The full balance of Two Hundred Two Thousand Four Hundred Sixty-eight and 41/100 ($202,468.41) Dollars shall be due on the furst day of the eighty-fifth (85th) month following Closing. A coPy of the Amortization :t.', Schedule is attached hereto as Exhibit "C". (c) Buyers shall have the right to prepay the purchase price. However, said right to ~ prepay is specifically contingent upon Buyers simultaneously satisfYing all sums due 3 .--.----;;"-~--"7",~.,., , . ..,' "' --r:,...,'-' . ~~;--~.-"'7~'~'~;~-:--;"-:';:'=:~~---:-T'"""~---:--'7'C--':::--~-"----'-~~,-O-'.--i'-':-,-- <Ii" ,~ - L 1_" 'Ill ~~. ~'="'-~-j'" J" . \\ , I !h . . -< - and payable pursuant to the Asset Purchase Agreement attached as Exhibit "Boo. (d) All of the above stated payments are to be made payable to Fern 1. Wilson at 68 Cumb~land Road, Lemoyne, Pennsylvania 17043 or such other address as.:8eller may advise. Should Buyers fail to make the montWy installment payment in full, as provided in the paragraph 3(a) or 3(b) hereof within fifteen (15) calendar days after the same shall be due and payable, then Buyers shall pay an additional five (5%) percent of the payment due as penalty. Said late charge shall be paid by Buyers to Seller with the installment due and owing. 4. Transfer of Title to the Premises. On the payment of the full purchase price, title to the premises shall be conveyed from Seller to Buyers at final settlement. . Final settlement shall occur in accordance with Paragraph 23 of this Agreement. Transfer of the real estate shall be by special warranty deed and title shall be free and clear of all liens and encumbrances except those easements and restrictions presently of record, and also subject to any liens or encumbrances which Buyers may have caused to be created during the term hereof Seller, uR9n the execution of this Agreement, shall deliver to the law firm of Barbara Sumple-Sullivan, Esquire ("Escrow Agent") a special warranty deed for the real estate executed by the Seller. Escrow Agent shall accept, take custody of, and keep safely the deed, Upon Buyers' presentment to Escrow Agent of proof satisfactory to Escrow Agent of the. payment in full of the purchase \ price and Buyers' full -. performance of all other terms and conditions of this Agreement and all-conditions of the Asset Purchase Agreement attached as Exhibit "Boo. Escrow Agent shall deliver to Buyers the deed to the 4 ( ......,'....-,.-'- -_.. '_..~...,._- -,- ..~.. ~---r..,----~---_.--,-.,...'r:::'"::"',";:.~- I~ I , .,.1 ~~"'" " '''---$1Hl> :'l ~1 ~. 14 . . .' J ., --.: premises. Escrow Agent shall not have any duty or obligation to take any action with respect to the collection of any of the indebtedness represented by this Agreement or the Asset Purchase Agreement attached as Exhibit "B" or to otherwise act with respect to these Agreements, except that, upon presentment of receipts. or other acknowledgment or proof of payments of the obligation !ereunder, Escrow Agent shall deliver the deed in its custody to Buyers. 5. Possession of PropeJiy. Buyers may enter into possession of the property and continue in such possession for and during the life of this Agreement. Possession shall commence with the satisfactory Closing of the Asset Purchase Agreement attached hereto as Exhibit "B". Buyers shall maintain such premises and all improvements thereon in good repair, and shall permit no waste thereof and shall take the same care thereon as a prudent owner would take. 6. Assignment. Buyers shall make no transfer or assignment of their rights pursuant to this Agreement to any third party without the express written approval of the Seller. Seller may assign its rights under this Agreement with notice to Buyer. 7. Municipal or State Improvements. Buyers agree to pay for any and all improvements to the premises done or ordered to be done by any municipality or state authority during the term of this Agreement and to comply at their own cost and expense with all notices received from public authorities from and after the date hereof. . 8. Taxes and Assessments. Buyers agree to payor to cause to be paid to the 5 !~:i': ;&.. '_'--', "r,-C~"""'--'- . I. - L .J - "' -"~-~. ' 'iiil " . , .> , , , , , '1 -;, appropriate governmental authority as an addition to the purchase price, before they would become delinquent, an amount of money equal to all real estate taxes, including township, county, and school taxes, assessments, water rents, sewer rents, and charges and other governmental charges, general and special which are Ilssessed or imposed upon or chargeable against the Premises at ~time after the date hereof and thereafter throughout the terms hereof as if the Premises and all improvements thereon were owned by Buyers unless such taxes or assessments are being contested in good faith and Buyers has provided adequate security for the payment thereof pending final adjudication. All property real estate taxes shall be prorated to the date of this Agreement. Buyers shall provide Seller with proof of payment of said indebtedness within fifteen (15) days after the due date for said expense. In the event of Buyers' failure to make said payment on a timely manner, Seller may make the payment on behalf of Buyers and give notice to Buyers of their default pursuant to Paragraph 18 of this Agreement. Failure of Buyers to timely cure said default, if possible, shall result in imposition of remedies reserved to Seller pursuant to Paragraph 19 hereof 9. Prorating of Expenses. Expenses for goods and services such as utilities, sewer, water, delivered prior to Closing shall be paid by Seller and expenses for goo;ds or services delivered after closing shall be paid by Buyer. Proration of same shall occur at the Closing as set forth in Article 10 of the Asset Purchase Agreement attached hereto as Exhibit "B". 10. Damage and Condemnation: Damage to or destruction,of all or any part of the Premises by fire or any other cause of taking of all or a portion of the Premis:~ by condemnation shall not terminate this Agreement or cause any abatement or reduction in the payments to be made by 6 t ,"". .-o','-........,i_..,.,.. ..___",~_.__._.'" ' nq_-..._._ ,,",'~-',- -,_.. =~ . . J "" , ~ 'lWil!tj/jlj"" > ~1l"_'U;!!ei!, .' :1 ." ).' , ) '. ", Buyers or otherwise affect the respective obligations of Seller and Buyers. 11. Proceeds of Insurance or Condemnation. . The proceeds of any condemnation proceeding or proceeds of any insurance attributable to any loss or damage to the Premi~s shall be applied to the purchase price of the Premises damaged or condemned. 12. Improvements. Maintenance. Repairs and Alterations. Buyers agree to maintain the Premises in good. repair, order and condition (reasonable wear and tear excepted whether structural or otherwise) and shall pay all other costs and expenses arising out of the occupancy and use of the Premises, but not limited to all public utility charges and utility connection charges. Buyers shall comply with all housing code standards, fire safety or other governmental requirements now in effect or hereafter enacted that involve the subject premises. Buyers will not undertake or pennit any demolition or structural alteration or addition or improvement to the Premises without written consent of Seller, which consent shall not be unreasonably withheld. All alterations or additions to the Premises un~rtaken by Buyers shall become part of the Premises. Buyers shall not remove or permit the removal from the Premises of any building or other improvement located thereon without the. written consent of Seller in ,writing nor shall Buyers . commit any waste on the Premises or any building or any improvement thereon. Buyers shall indemnify and hold Seller and the Premises of Seller, including Seller's interest in the premises, free 7 ,I,_~"," I" - - , '= .1 " ~, ~ ~~ JfIj- '~,~$%-- ., :\ " . . '. -.; and hannless from liability from any and all mechanics' liens or other expenses or damages resulting from any renovations, alteration, buildings, repairs or other work placed on the premises by Buyer. Buyer shall make no material alterations to premises in excess ofFive Hundred ($500.00) Dollars without the express written permission of the Seller. 13. Propert;y. Buyers agree and warrant that they will keep the entire Premises and its contents insured against loss or damage by fire with extended coverage. The aforesaid insurance shall be in an amount of at least 100% ofthe replacement value, but not less than Four Hundred Twenty- five Thousand ($425,000.00) Dollars. All such policies or any additional fire insurance carried by Buyers on the Premises shall name Seller as additional named insured. Buyers shall provide to Seller proof of coverage on an annual basis. 14. Liabili1;y Insurance. Buyers shall provide comprehensive general liability insurance with minimum limits of One Million ($1,000,000.00) dollars. All such policies carried by Buyers shall name Seller as additional named insured. Buyers shall provide to Seller proof of coverage on an annual basis. '- 15. Indemnification of Seller and Waiver of Claims. Buyers covenant and agree to protect, exonerate, defend and indemnify and save Seller harmless from and against any and all claims of liability. which on or after the date of Closing may arise out of Seller's o~ership of the Premises thereof and from and against any and all loss, damage, cost or expense" or liability based upon personal injury, debt, loss or damage to property suffered or incurred by any person, firm or 8 , , .. ..~"::,~r:---~-~,,-.,r-- r..-.. I. l_""......~~-~ - ,.' '=~ ". -....., ~~ .ti'ilt'~~P---~Q' ;prllli~':!I\.'lili " " '. . . . . -.;, corporation (including the parties hereto) and arising out of or attributable to the presence, condition, use, operation, or maintenance of the Premises except when due to the willful misconduct of the Seller. Seller shall give written notice to Buyers of any claims asserted against Seller within ten (10) days time after such .claim becomes known to Seller. If such claim is otherwise made known to Buyers, then Seller shall be under no duty to advise Buyers of said claim. In any action or proceeding except for the willful misconduct of Seller, brought against Seller by reason of any claim, Buyers, upon notice from Seller, covenant and agree to resist or defend any such action or proceeding and to provide legal counsel, at Buyers' cost, for defense of any such claim. Seller agrees to cooperate and assist in the defense of any such action or proceeding if reasonably requested to do so by Buyers, at Buyers' expense. Buyers further agree to indemnify and hold Seller harmless from any and all costs (including attomey fees and costs) associated with defense of any claim or cause of action including all costs and expenses, including attorney fees, for enforcement of this indemnification. 16. Inspection. Buyers will at all times provide Seller with reasonable access to the Premises for the purpose of inspection or view of the Premises. . " 17. Recording. A Memorandum of Sale can be recorded by either party. 18. Events of Default. Each of the following events is hereby defined as and is declared to be constituted as an event of default: .. (a) Failure by the Buyers to make the payments required to be made hereunder as part of 9 '. ~-, ,""'-,,-".", . """""'..""'<'='l'","'~' ~. ~'''''.''"~ _~_" ,_ 'r.. . ~ , . , I ~. ~ "I itilliti.. .' " .. ' , , . ., -"- the purchase price within thirty (30) days after the same is due; or (b) Failure by the Buyers to observe and perform any other covenant or condition or agreement on their part to be observed or performed under this Install!hent Sales Agreement for a period of thirty (30) days after written notice specifying such failure and requesting that it be remedied, given to the Buyers by the Seller or her agent; or ( c) If an( of the Buyers shall file a voluntary petition in bankruptcy or make an assignment for the benefit of creditors or failure by the Buyers to contest any execution, garnishment or attachment as will impair its ability to carry out their obligation under this Agreement, or the commission by the Buyers as a bankrupt, or the entry by the Buyers into an agreement or composition with their creditors; or the approval of a Court of competent jurisdiction of a petition applicable to the Buyers in any proceeding for a consolidation of creditors under the provision of the general Bankruptcy Act, as amended, or under any similar act which may hereafter be enacted which is not dismissed within sixty (60) days. , '- (d) Having occur any act or omission by Buyers which is deemed to be a default pursuant to Article 5 of the Asset Purchase Agreement attached hereto as Exhibit "Boo. 19. Remedies on Default. Whenever any event of default referred to herein shall have happened and be existing, anyone or more of the following remedial steps may be taken: 10 J ~ ,_~.~..L - - ","~",:, 'Mill ~ ~~, ,.-.,.., ,~ ~~,,: ,... . ~ . , . ,.' f.' --" (a) Seller may perform for the account of Buyers any covenant or obligation in the performance of which Buyers are in default, in which event, Buyers shall immediately pay to Seller all amounts paid by Seller, together with reasonable counsel fees, as well as with interest at the rate of ten (10%) percent per annum from the date llf payment by Seller. (b) Seller may declare all sums which Buyers are obligated to pay to Seller pursuant to this Agreement, together with interest accrued thereon, immediately due and payable in full. IN SUCH CASE OF DEFAULT, BUYERS HEREBY AUTHORIZE AND EMPOWER ANY ATTORNEY OF ANY COURT OF RECORD IN THE COMMONWEALTH OF PENNSYLVANIA OR ELSEWHERE TO APPEAR FOR BUYERS AND CONFESS A JUDG:MENT FOR THE ENTIRE PRINCIPAL SUM AND INTEREST REMAINING UNPAID THEREON, WITH TEN (10%) PERCENT ATTORNEY'S COMMISSION OR FEES, HEREBY W AlVING THE RIGHT AND EXEMPTION AND INQUISITION, SO FAR AS THE PREMISES HEREIN DESCRIBED, AND ANY PROPERTY OR BUILDING THEREON MAY BE CONCERNED. Buyers hereby irrevocably authorize and empower any attorney of any Court of record of Pennsylvania or elsewhere to appear for and c9nfess judgment against " Buyers for all amounts for which Buyers may be or become liable to Seller or her assignee under this Agreement, as evidenced by an affidavit signed by an agent of i i < _~__.' 'r.'~"'"'-_"~._____o' -. ,--,...,..,.. --_....~~ ..- .~~,,,,---~.., .-"-~. ----------.,---t.-.~'-.-.. ~-" - --,_,,_._,.'-~-' ._,,-"--~-~_._--,~-".---,-- - , ~" "' , lh ~ , " 'W1" " . , . I' . . . . -0 - Seller or of assignee setting forth the amounts then due plus ten (10%) percent thereot; as an attorney's fee, with costs of suit and release of errors. Such authority shall not be exhausted by anyone exercise thereof but judgment may be confessed as afores~d from time to time as often as there is a default hereunder. ( c) Seller may tenninate this Agreement and resell the Premises at a private or public sale and Seller will apply the monies collected under such resale, to any amounts outstanding hereunder. Buyers shall remain liable for any deficiency after the application of the proceeds. If such proceeds are in excess of the amount required to satisfY the total due from Buyers to Seller under the terms of this Agreement, then the proceeds shall be used first to reimburse Seller the costs of sale and collection, including counsel fees of ten (10%) percent. Any remainder after said reimbursement shall then be tendered to Buyer. (d) Seller may declare this Agreement to be null and void and enter into possession of the Premises and retain all sums paid hereunder to the date <9f default as liquidated damages. (e) Seller may proceed by action of ejectment on this Agreement after default for recovery of said premises; in such case, BUYERS HERE~Y AUTHORIZE AND . EMPOWER ANY ATTORNEY OF ANY COURT OF RECORD IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR 12 , "':",:'-",'7--:"-:':::,.,~' . . '~'--'---"" ~~ ..._~ '~ -.,-----'---.-c-'~';--',____"__,..., . ' ' , _,_,~_'-__.,..-7_-._:-:,..__;--- s."'.~'~ - ,,~ L __0"' .,_ '~. ill-""'.~~~'i , . ,. , . '. .. . , -' FOR BUYERS AND CONFESS JUDGMENT OF EJECTMENT, AND AUTHORIZE THE IMMEDIATE ISSUING OF A WRIT OF POSSESSION AND EXECUTION (WITHOUT ASKING LEA VB OF COURT) FOR THE COSTS AND TEN 00%) PERCENT ATTORNEY'S COMMISSION OR FEES, W AIyING ALL STAY AND EXEMPTION LAWS. The Buyers hereby waive and release all errors, defects and imperfections whatsoever of a procedural nature in the entering of any judgment or any process or proceedings arising out of this Agreement. Buyers also waive the benefit of any laws which now or hereafter might authorize the stay of any execution to be issued or any judgment recovered hereunder or the exemption of any property from levy or sale thereunder. (f) The Buyers agree to execute a quitclaim deed with the same to be held by the law firm of Barbara Sump Ie-Sullivan ("Escrow Agent"), and to be delivered to Seller upon default by Buyers of the obligations of this Agreement which have not been cured within the time limitations specified herein. Seller is authorize,!o record said quitclaim deed in the event of default to ensure no record or claim of title shall exist. (g) Take any and all other actions available to Seller at law or equity. 20. Cumulative Rights. No right or remedy herein conferred upon or reserved to Seller is intended to be exclusive of any other right or remedy herein or by law provided, but each shall be 13 1ijf'~ La ~~" ,~".~.. _I .1 "- < ~~ ~:l! E """'''',' . . , " .. ': . , -' cumulative and in addition to every other right or remedy herein given or now or hereafter existing at law or in equity or by statute, and may be pursued singly, successively or together at the sole discretion of Seller and may be exercised as often as the occasion therefor shall occur. 21. Realiy Transfer Tax. Any realty transfer tax or taxes imposed upon the transfer of the real estate shall be divided equally between the Buyers and Seller at Final settlement as set forth herein in paragraph 23. 22. Seller's Warranty. Seller warrants that no notice of any governmental authority has been issued or served upon the subject property or any occupancy thereof or upon the Seller or agents of Seller prior to the signing of this Agreement calling attention to any violation of any building, fire, safety or other ordinance or requirement or calIing attention to the need of any curbing, recurbing, paving, repaving or other construction or improvement on or about the subject premises or removal of any nuisance. There are no lawsuits pending or anticipated against Seller that involve the subject real estate. No municipal or other governmental improvements affecting the subject premises are, as of the date of this Agreement, in the course of construction p-r installation and to the best of the knowledge of Seller, no such improvements have been ordered to be made. 23. Environmental Warraniy. No hazardous waste, hazardous or toxic materials or wastes or-products regulated by any law or ordfuance have been stored, tre~ted at or disposed of by " Seller on the real property, and, to the best of Seller's knowledge, have never been stored at, treated, or disposed of on the real property by Seller or by any other individual or entity. No asbestos or 14 .~ ',e>' _ ._'~. ~~""--=v..,..~,- . . ~ ,""., '--",--,,. .~7''''7'-::''~'~- .._--_..,.,-~,.,...- . . , " .1 ~- - ~ . ~~~",,'\ . _W"~"~ ,~ 'I . . . .' ,~ ,. --:. asbestos products or materials or polychlorinated biphenyls or urea formaldehyde insulation have been stored at or disposed of on the real property. Neither the property, nor the use or operation thereof by Seller, or any tenant of the property, (1) violates, or is alleged by any person or entity to violate, or is not in complianc.:, or is alleged by any person or entity not to be in compliance, ~h any land use, envirorunental, hazardous material, and/or waste handling, storage, treatment, disposal or discharge laws or other laws, building codes, zoning or other ordinances, rules or regulations, fire insurance regulations, state labor department regulations, or covenants, conditions and restrictions whether state, federal,-4ocal or private; and eii) there has not occurred, nor has any person or entity alleged that there has occurred, upon the property, nor any parcel, any spillage, leakage, discharge or release into the air, soil,or ground water of any hazardous materials or regulated waste. 24. Final Settlement. It is agreed by and among the parties hereto that final settlement shall be held on the eighty-fifth (85th) month anniversary of Buyers' execution of this Agreement, or earlier, if Buyers exercise their right of prepayment, subject to the extensions permitted under paragraphs set forth above. TIME SHALL BE OF THE ESSENCE. Seller agrees that, at the time of final settlement, Seller will furnish Buyers, upon payment of the principal J?ld interest and balance then due and owing, a special warranty deed conveying good and marketable title to the premises to existing easements and restrictions of record, which deed has been executed by Seller prior to or contemporaneously with the execution of this Agreement, and which deed will be held in escrow by Barbara Sumple-Sullivan, Esquire, of New Cumberland, Pennsylvania. . 25. Buyers' Option to Take Title. In the event that Seller is unable to give a good and 15 ~ I '~"----:'~. ~ "~-7::'-,,." --- , ",- , .~~'''.-,-. c-' :"1 _L."~~. =- .~ I.~ "I , , "',~" '~~"'.l.% It ~, 1 ~ , I ~. 4, 'j . ~' , ,. marketable title subject to the previous conditions of title referred to hereinabove, Buyers shall have the option of taking such title as Seller is able to give, with an abatement of price, equal to the costs of correcting the title defect. ~ ~ 26. Litigation. Should any litigation be commenced between the parties hereto concerning said property, this Agreement, or the rights and duties of either in relation thereto, the party prevailing in such litigation shall be entitled, in addition to such other relief as may be granted, to a reasonable sum as-and for their attorneys' fees in such litigation which may be detennined by the Court in such litigation or in a separate action brought for that purpose. 27. Entire Agreement. This is the entire Agreement by and between the parties hereto and this Agreement shall be binding on and inure to the benefit of the successors, heirs, personal representatives and assigns of the parties hereto. Nothing in this paragraph shall be construed as a consent by Seller to any assignment of this Agreement. 28. Waiver. The waiver of any breach of this Agreement by either party shall not constitute a continuing waiver or a waiver of any subsequent breach, either the same or another provision of this Agreement. 29. Modification. No modification of this Agreement shall be binding upon the parties 5 hereto unless the same shall be in writing and duly executed by the Buyers and the Seller. 16 1.._ - to ,,' I"~ " -, ~~ .....,;~.~,,- ,~ . ~:-,'<lJt.,,,.,",,,,w " . , '. : '", , , ' , -- 30. No Existing Leases. Seller warrants that no portion of the premises are subject to any existing rental or lease agreements. IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, hereunto set - - their hands and seals the day and year first above written. WITNESS: J. ; . A7~ ~ ' ~('i<< ~'"4- ern L. Wllson, Seller (SEAL) ',,-- ---- ) (SEAL) '1laA / /1/ /~n/A1...~ ASEAL) Karen L. Dunkle, Purchaser ; . 17 ~: -,-"~.......,..,.--;-'"..:,-;~,-,--' '- .,-~~~~~>,.,c~."..~- ,.,. ~ --,..._.~,-:~'." . ____l .' ~~'~'~~,--~_.. .' , ..' " " ,,' -' EXHIBIT L ~ .......~ . f. , ! "A" I" 't ',1 ~ .., " "'-.,,,, -':a;m\t,,: . \.. ~ 'II" .J,' . ,"'."" , ~ r. l '''-.!''''', .i "'~"- ~~ " ~, ~ - jjl'1.ntJi , " .. J \.. --' Jllade the <i-Tlf . in the year Aw-'- day of aWn-steen hundred and seventy-nine (1979) ~~hn.et'%t FERN. L. PARENTI, a/k/a FERN L. ~ILSON I single person I of ~' Cumberland, Cumberland County, Pennsylvania, CRANTOR, A N D \ FERN L. WILSON, single person, of New CumberlandJ Cumberland County, PennsylVania, GR.AN'IEE. :;-~ ,;, . ~ ~:..~~ -"'~... :;;DO,=, ~~, ~:zr~ V'I 1;10... ~- Lo.l . . :)= (~ ...,., om -:llt,< <1- =-:;::;;~;;;o c:'Puntggem, That in consideration 01 One Dollar ($1.00) ----=:.-f;:.~;::; . ~ = => m -------------------- 'DcIZZars, ,in hand paid, the receipt wh,ereof is hereby acknowledged, the said tr.ap,tor ,~o es hereby Ira.",t and con.vey to the said grantee, her heirs and as.~i~ns J A.l.L 'IRA! CER'IAIN lot or tract of land situate in the 5orough of New Cumberland, Cumberland County. Pennsylvania, more particularly bounded and described in accordance with a survey by Michael C. DiAngelo, Registered Surveyor, dated October 22, 1976, as follows, to wit: BEGDlNING at a point at the northeast corner of liarket Street and Fourth Street, said point being tbe point of interseecion of the.. uternal walls of buildings Nos. 401 and 403; thence along the eastern line of Market Street, North SO degrees 00 minutes West fifty (SO) feet to a na::i:l, being the southwest cortl,er of Lot No. 73j :thence along the same North 40 degrees 00 minutes East oue hundred five (105) feet to au iron pinj theuce along lauds now or formerly of George E. Pentz and through Lot No. 72, South SO degrees 00 minutes East fi.fty (SO) feet to an iroa. pin on the northern line of fourtb Street and on the extension line ,of the southern external wall of buildings Nos. 401 and 403 i thence along said last mentioned line South 40 degrees 00 minutes West one hundred five (lOS) feet to the Place of BEGINNING. BEING the greater part of Lot No. 72 on the General Plan of the Borough of New Cumberland, Pennsylvania. HAVING thereon erected a two-story brick building known as and numbered 401-403 Market Street. BEING '!HE SAME premises which Thomas A. Parenti ind Fern L. Parenti, his wife, by deed dated March 2.7, 1978, and recorded in Deed Jook US", Volume 27, Pas:e 244, in the Office of tbe Recorder of Deeds in and for Cumberland County I 'Penns,'lvania, granted and conveyed unto 'Fern L. Parenti. The said 'rhomas A. Parenti and Fern L. Parenti were divorced under date of October 12, 1978, by Decree of the Court of Common Pleas of Dauphin County, Pennsylvania, to No. 1744-5-1978. The said Fern L. Parenti on October 20, 1978, elected to resume her maiden name of Fern L. Wilson. -. r ", .- r~..- ., ! u~, _~_ e: ,__ ..:..,. ..,.-;_........,........,..,__,~~~,---,~,."'.. .,...,,,~.,,~---;---"_:..--c~__.__,ry..~_u_. ;H' I....... 6..=.. ./. . " . --;-'--:-"",,,7C"''''~~-~~''''<'"('"-''''~~''''''''''T~,- "~ t1 II,'! IJ i', \ j-- -' '"i:n ~lunc!i~ ':)\})haCJll.t ~ ~ ,~~ ' and seal . ~~"', 1 II I" , ' -:. the day and year first above written. said grantor ha S hereunto set her hand ~i5"tb, ~tI11tl\ ..nb ~t!i'lltrtb ;in l~c 'rc9~nt"c or ;E'"g;;-JdZ. -z/ ~ O;:om-mn:n'mcQ,U~ tiE '.pt'nnsu1'l1:O.nia ~auni" "E ~~ . ~ On thiR, the (p ~ day uf 4a ~ ~ 'J! the llnd~r$itn.ed ulficer. personally (Jppp(Jr~cl a } ..... 1979 . befure me. a Nota"I'Y Public, ., FERN L. PARENTI, a/k/a FERN L. WILSON .. .\.....J '""":,;......":'. knOW1~ to mf!(u/"sati.tft~("turUy prol'en) ttJ be tht' perf/on S whosen.a.mp. is ..~AA~:,qiJiflS:~Jt......"<!:,' ilUtmment. and (JCkl~Olulcd~fld tha.t she f'-ZecutM the lIame lor tIle pu./"pose:uj"efeiji..:c'on.tcin.Ifi4.};. '\.. IJl' WITJI'ESS W1lEREOF,l have hereunto Iret my hend and official! _.teal. ~~."'~;::", ~'. ~ --c/ ~~. .. ~.".. ,.n ,~.," ~. L.' '.... ~.Y-Pf. _....mflO. ~S'1 w~._ ;lQ.. u.. .e!> ;:, . t~~~ o\l'1l'~"..~,-~..:.. ""'" -r ... ~ .....!P'l"-- -.-""",.. -. '/7I-f~ ~. \'.c...,lds~~.~, _.~, Qfan"''''n.....l1~ aE :ptnn"l!I....ni.. C;:aunll1. at 0" thiN, the delvof ~.. the undtll".'titnt'd olfieer. p~r!JcJRaIly appeared } ""- 19 . bf'{ul'c me kllfJIU',. tv IrII"(ur Halilt!ul.torily pm,-,.",) filII,. th,. pprHun wJwsP nnml' HIl.IMcribed lu the I-dthilt il/xlrulfHmt. and Q("kllt"o/,.d~f'd that hI' p:r"r.utpd th,. .tame /ur till> ""rpo.te therein ('tlntaiTi~l'd. IN WIT.\~;:S8 WHI::H.A'OF, I Jlrwe hereunto "pt my kondl.aM lec/. . :?J ~e~ <!J:crH.f~ that the precise addre.. of the grantee herein i.'$ ~n' M~~~pt Str~et . I ~ New Cumbe~land / 1!L1-7070 .1 '~---.~-------;-~.7""""-.~-'-""'-,-'--;-'~"'-.-':-.-'.""-"""""'----:-''----''~--~.~'''"u. r- ~I-<< -~ "' ~ ~ ~, I . J, " [I: J' EXHIBIT "B" " , . ^ . " . , , ' ,t " ~ "~----:-~-'--~~~-"-I~-""'-~'.- --..--,-'-',' 'll...M ~~" ~< II,Q~, .J , -~ ;., ',-', J, ". ..: ,J . I , I ;,,~ L.:_ ' r '. "- 4"-' ASSET PURCHASE AGREEMENT BY AND BETWEEN FERNROCK SNYDER, INC. AND McDUNK, INC. . ~ ~s f. I - "/oli'i!l]l;\' , 11,1 I" -.l.. ,.1!11."- - 1.- ''''' ',' 'I W " . "".' ,. . EXHIBIT "e" -~ . -, 5 I , .' - , . " --". ~" - --""'~"',. , " ""'~~~' \ --~ . "-T.' - "" ... .i~- .. ... -... . ~" ~ J~_" . 'lI; I .,() "--. '. ~ ',,' Wilson to McManus/Dunkle -' Compound Period .....,.: Monthly Nominal Annual Rate ... : Effective Annual Rate.. : Periodic Rate ..,.,........, : Daily Rate .................. : CASH FLOW DATA Event 1 Loan 2 Payment 3 Payment 5,250 % 5.378 % 0.4375 % 0,01438 % Start Date 06221999 0701 1999 07 01 2006 - -.J J "~ --......,. ~~ '-.,~",,~ ("'\ ",).07061Sl99 Page 1 ~ ~ Amount Number Period 265,000,00 1,785.69 201.290.48 AMORTIZATION SCHEDULE - Normal Amortization Date Loan 06 22 ~ 999 1 07011999 2 08 011999 3 09011999 4 10011999 5 11011999 6 12011999 1999 Totals 7 01 01 2000 8 02 01 2000 9 03 01 2000 10 0401 2000 11 05 01 2000 12 0601 2000' 13 0701 2000 14 0801 2000 15 0901 2000 16 10012000 1711012000 18 12012000 2000 Totals . 19 01 01 2001 20 0201 2001 21 0301 2001 22 04 01 2001 23 05 01 2001 24 06 01 2001 25 07 01 2001 26 08 01 2001 . ~-~'~- ~ - ,-..,.. - . " Payment 1,785.69 1,785.69 1,785.69 1,785,69 1,785,69 1,785,69 10,714,14 1,785,69 1,785.69 1,785.69 1,785.69 1,785.69 1,785.69 1,785.69 1,785.69 1,785,69 1,785,69 1,785,69 1,785.69 21,428.28 1,78S.69 1,78S.69 1,785,69 1,785.69 1,78S,69 1,78S.69 1,785.69 1,78S,69 ----,.~,-""..~ Interest 343,05 1,153.06 1,150,30 1 ,'\47.52 1,144.72 1,141.92 6,080,57 1,139.10 1,136.27 1,133.43 1,130.58 1,127.71 1,124,83 1,121.94 1,119.04 1,116.12 1,113.19 1,110.25 1,107.30 13,479.76 1,'\04.33 1,101.35 1,098.35 1,095.35 1,092,33 1,089.29 1,086,25 1,083.19 1 84 Monthly 1 Principal '\ ,442.64 632.63 635.39 638.17 640.97 643.77 4,633.57 646.59 649.42 652.26 655.11 657,98 660.86 663.75 666.65 669.57 672.50 675.44 678.39 7,948,52 681.36 684.34 687.34 690.34 693.36 696.40 699.44 702.50 End Date 0601 2006 Balance 265,000,00 263,557.36 262,924.73 262,289.34 26'\,65'\.17 261,010.20 260,366.43 259,719.84 259,070.42 258,418,16 257,763,05 257,10S.07 :. 2561444.21 255,780.46 255,113.81 254,444.24 253,771.74 253,096.30 252,417,91 ; , 251,736.55 5 , 251,OS2.21 250,364.87 249,674.53 248,981.17 248,284.77 ~ 247,585.33 ,t 246,882.83 .n :\'___" :,,- -- ~ ~.<"' I~-\, ~-~- ~....J~ -~,......~"" ~ ;JIIl;IIlI-" .~ "''''''"..Jidw..ll.."J.~i_ ~ '"0" a~ .' ~ ';:lB~, . '. n '!~7' 06 1999 .. ,"", ' Pa~e 2 Wilson to McManus/Dunkle 7 ~ , Date Payment Interest Principal Balance 27 09 01 2001 1,785.69 1,080.11 705.58 246,177.25 28 1001 2001 1,785.69 1,077.03 708.66 245,468.59 29 11 01 2001 1,785.69 1,073.93 711.76 244,756.83 30 12012001 1,785.69 1,070.81 714.88 244,041.95 2001 Totals 21,428.28 13,052.32 8,375.96 - 31 01 01 2002 1,785.69 1,067.68 718.01 243,323.94 32 02 01 2002 1,785,69 1,064,54 721.15 242,602.79 33 03 01 2002 1,785.69 1,061.39 724.30 241,878.49 34 04 01 2002 1,785.69 1,058.22 727.47 241,151.02 35 05 01 2002 1,785.69 1,055.04 730.65 240,420.37 36 06 01 2002 1,785.69 1,051.84 733.85 239,686,52 37 07 01 2002 1,785.69 1,048.63 737.06 238,949.46 38 08 01 2002 1;1'85.69 1,045.40 740.29 238,209.17 39 09 01 2002 1,785.69 1,042.17 743.52 237,465.65 40 1001 2002 1,785.69 1,038.91 746.78 236,718,87 41 11 01 2002 1,785.69 1,035.65 750.04 235,968.83 42 1201 2002 1,785.69 1,032.36 753.33 235,215.50 2002 Totals 21 ,428',28 12,601.83 8,826.45 4301 01 2003 1,785.69 1,029.07 756.62 234,458.88 , 44 02 01 2003 1,785.69 1,025.76 759.93 233,698.95 45 03 01 2003 1,785.69 1,022.43 763.26 232,935.69 46 04 01 2003 1,785.69 1,019.09 766.60 232,169.09 47 05 01 2003 1,785.69 1,015.74 769,95 231,399.14 48 06 01 2003 1,785.69 1,012.37 773.32 230,625.82 49 07 01 2003 1,785.69 1,008.99 776.70 229,849.12 50 08 01 2003 1,785.69 1,005.59 780.10 229,069.02 51 09 01 2003 1,785.69 1,002.18 783,51 228,285.51 52 1001 2003 1,785,69 998.75 786.94 227,498.57 53 11 01 2003, 1,785.69 995.31 790.38 . 226,708.19 54 1201 2003 1,785.69 991.85 793.84 ': 225,914.35 2003 Totals 21,428.28 12,127.13 9,301.15 55 01 01 2004 1,785.69 988.38 797.31 225,117.04 56 02 01 2004 1,785.69 984.89 800.80 224,316.24 57 03 01 2004 . 1,785.69 981.38 804.31 223,511.93 58 04 01 2004 1,785.69 977.86 807.83 222,704.10 59 05 01 2004 1,785.69 974.33 811.36 221,892.74 60 06 01 2004' 1,785.69 970.78 814,91 ; 221,077.83 61 07 01 2004 1,785.69 967.22 818.47 " 220,259.36 62 08 01 2004 1,785.69 963.63 822.06 2.19,437.30 63 09 01 2004 1,785.69 960.04 825.65 218,611.65 64 1001 2004 1,785.69 956.43 829.26 217,782.39 65 11012004 1,785.69 952.80 832.89 216,949,50 66 1201 2004 1,785.69 949.15 836.54 216,112.96 2004 Totals 21,428.28 11,626.89 9,801.39 l: , J . _c---.';".,......-~-_."~------:' _-,,':",..--,_~,~~."'""',.~__'r~.~_, r -."".-,,__,,"_ "-"..-.-~:- ____ ~- ~~~......" --" _.~-" ~ ,- ~ "-~' .'.. ,"'~ . ~- L ,.1 --~~ - ~~~~;.-""~..,;; , , () \ " : . ... .. . , . '::;1 06 1999 Page 3 Wilson to McManus/Dunkle. 7 --"- .--.. --....- Date Payment Interest Principal Balance 67 01 01 2005 1,785.69 945.49 840.20 215,272.76 68 02 01 2005 1,785.69 941.82 843.87 214,428.89 69 03 01 2005 1,785,69 938,13 847.56 213,581.33 70 04 01 2005 1,785.69 934.42 851.27 212,730.06 71 05 01 2005 1,785,69 930,69 855.00 211,875.06 72 06 01 2005 1., 785.69 926.95 858.74 211,016,32 73 07 01 2005 1,785.69 923.20 862.49 210,153.8'3 74 0801 2005 1,785.69 919.42 866.27 209,287,56 75 09 01 2005 1,785.69 915.63 870.06 208,417.50 76 1001 2005 1,785.69 911.83 873.86 207,543.64 77 11012005 1,785,69 908,00 877.69 206,665.95 78 1201 2005 1,785.69 904.16 881.53 205,784.42 2005 Totals 21,428,28 11,099.74 10,328.54 79 01 01 2006 1,785.69 900.31 885.38 204,899.04 80 02 01 2006 1,785.69 896.43 889.26 204,009.78 81 0301 2006 1,785.69 892.54 893.15 203,116.63 82 04 01 2006 1,785.69 888.64 897.05 202,219.58 83 05 01 2006 1,785'.69 884.71 900.98 201,318.60 84 06 01 2006 1,785.69 880.77 904.92 200,413.68 85 0701 2006 201,290.48 876.80 200,413.68 0.00 2006 Totals 212,004,62 6,220.20 205,784.42 Grand Totals 351,288.44 86,288.44 265,000.00 . " . ~ . . ~ --- - -.-,-" ,_.~~~" 'l"~!::ti,~,;",':.~~Y:'>'~"';Y !,.::,.-"~",,pc L .I. - ""'--"~ ~~'~. , ,~ 1 i't,:fil~,,', . . I, " '. . : ~ 1 ,'. " . I') l '-:\J . 07061999 P'i!ge 4 Wilson to McManus/Dunkle 'i- Last interest amount decreased by 0.01 due to rounding. .. ~ t . ~ , , J'_" -" ',-'-_1 ":-'"_1;-. I . .._.'.-~. \' ( .',," . . .. . ~ FERN L. WILSON, , : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : No, 00-6778 Plaintiff v. IRA J. McMANUS, JR., LESLIE 1. McMANUS, JAMES R. DUNKLE, and KAREN L. DUNKLE, Defendants : Civil Action CERTTFICA TE OF SERVICE I, Barbara Sumple-SulJivan, Esquire, do hereby certifY that on this date, I served a true and correct copy of the foregoing BRIEF IN OPPOSITION OF PETITION TO OPEN DEFAULT JUDGMENT, in the above-captioned matter upon the following individual(s) by first class mail, postage prepaid, addressed as follows: Anna Marie Sossong, Esquire Skarlatos and Zonarich 204 State Street Harrisburg, PAl DATED: December 1,2000 rbara Sumple-Sullivan, Esq . e 549 Bridge Street New Cumberland, P A 17070-1931 (717) 774-1445 Supreme Court I.D. No. 32317 Attorney for Plaintiff ._J.._.._.._... ,,,,' '.w.;,~ -_. ---" ~~..~ .,. . L '. 7T~.~-~ ~~ "- ~ I~~ ~-~ '" ~;~;.,'!I I j , [ 1 FERN L. WILSON, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 00-6778 IRA J. McMANUS, JR., LESLIE J. McMANUS, JAMES R. DUNKLE and KAREN L. DUNKLE, Defendants CIVIL ACTION BRIEF IN SUPPORT OF PETITION TO OPEN DEFAULT .JUDGMENT Defendants, Ira McManus, Jr., Leslie J. McManus, James R, Dunkle, and Karen L. Dunkle, by and through their attorney, Anna Marie Sossong and the law firm of Skarlatos & Zlmarich, UP, respectfully petition this Court to open the confessed judgment under Pa.R.C.P. 2959, and in support states as follows: STATEMENT OF FACTS Plaintiff, Fern L. Wilson (hereinafter "Plaintiff'), is the owner of a restaurant, liquor license, and real property located at 401-403 Market Street (hereinafter "Property"), New Cumberland, Cumberland County, Pennsylvania. The Property is known as Pete's CaftS. On April 1, 1999, Plaintiff and Defendants entered into an Installment Sales Agreement (hereinafter "ISA Agreement") for the purchase of the Property. The purchase price for the real estate according to the Agreement wa.s Two Hundred Ninety-Five Thousand Dollars "e$~95,OOO.00). Thirty Thousand Dollars ($30,000.00) was paid at the time ofthe closing. A copy of the ISA Agreement is attached hereto and incorporated herein as Exhibit 1. On April 1, 1999, Plaintiff, under the name Femrock Snyder, Inc., and Defendants, under the name McDunk, Inc., entered into an Asset Purchase Agreement for the purchase of the Plaintiffs Pennsylvania Liquor Control Board Distribution License with a Sunday Sales Permit ~....-..,,;~ ,",_...l~ _ ""~~->~' ,"'.,~~, ~J " ~ I ,-,"" . "lit JI!i!!i. ~ir;f." , t , . > and Amusement Permit. The Asset Purchase Agreement also included physical assets such as equipment, furniture, fixtures, vehicle, inventory, etc.; liquor and alcoholic beverage inventory; and intangible assets including the fictitious name, The purchase price for these assets was One Hundred Thirty Dollars ($130,000,00), Fifteen Thousand Dollars ($15,000.00) was paid at closing, The remaining One Hundred Fifteen Thousand Dollars ($115,000.00) was to be paid in eighty-four (84) equal monthly installments of Seven Hundred Seventy-Four and 92/100 Dollars ($774.92). A copy of the Asset Purchase Agreement is attached hereto and incorporated herein as Exhibit 2. Defendants gained possession of Plaintiffs Property on or about April 1, 1999. Defendants have refused to make the payments due for August, September, and October, 2000 after learning that the Agreements had been signed based upon fraudulent representations by Seller, Fern L. Wilson, Plaintiff in this matter. The Defendants entered into these Agreements because offraudulenl representations made by Seller, Plaintiff herein. The fraudulent representations misstated the financial status of Pete's Cafe. Specifically, these representations included a list of employees of Plaintiffs business who were paid in whole or in part in cash but which such cash payments were never included on the payroll records. The Defendants reviewed the payroll records of Pete's Cafe when they reviewed all the financial records of Pete's Cafe before making the decision to purchase the Property. . ~ Defendants also learned that the Plaintiff s monthly financial status reports were predominately and intentionally misstated, indicating that the business was making money prior to its sale, therefore inducing Defendants to purchase the business. ""~~"'>o_ _e ,,~~,., ="~ _.~. I ~ ~, ~~~: . , , .. After learning of the fraudulent misrepresentations of the Plaintiff, Defendants did not pay their rent on the Property. The Plaintiff then filed a motion for possession of real property. A judgment for possession of real property was entered against the Defendants on October 3, 2000, QUESTION PRESENTED Is the fraudulent misrepresentations made by the Plaintiff to the Defendants in the purchase of Pete's Cafe a question of fact that therefore entitles the Defendants to have the Default Judgment opened in this case as is required by the Pa.R.C.P. 2959(3)(e)? DISCUSSION According to the Pennsylvania Rules of Civil Procedure ~2959(3)(e), a petition for judgment by confession can be opened "if evidence is produced which in a jury trial would require the issues to be submitted to the jury." Pa.R.C,P. ~2959(3)(e) and Greenwood v. Kadoich. 239 Pa.Super. 372, 373, 357 A.2d 604 (1976). The evidence in this case that should be submitted and reviewed by a jury is evidence proving Defendants allegation of fraud. In the negotiating stages of the Agreement, Plaintiff induced Defendants into believing that Pete's Cafe was prospering when in fact the financial records being kept were predominately and intentionally misstated. As stated in Defendant's Petition to Open Confessed Judgment, "at the time the Defendants executed the Agreement, Defendants did not know that the Plaintiff : ,misrepresented material facts that would have been pivotal in the decision to sign the , Agreement." (Petition to Open Judgment, #4). "[A] court can no longer weigh the evidence in support ofthe defense, but must only detennine whether there is sufficient evidence to allow the issue to go to the jury." Greenwood. at 373, citing to Wolgin v. Mickman. 233 Pa.Super. 218, 221-22, 335 A.2d 824 (1976). The information provided to the Defendants in this case constitutes fraud according the five elements !,'ti= ,,-,," ~--.~ ~ ..... .1 - ~ '~'~''''''~~~"'~~!ffii , . , , , .. j required to prove fraud. The five elements of fraud are "1) a misrepresentation; 2) that if the misrepresentation was innocently made related to a matter material to the transaction, or if it was knowingly made, materially is not required; 3) an intention by the maker that the recipient will thereby be induced to act; 4) justifiable reliance by the recipient upon the misrepresentations; and 5) damage to the recipient as the proximate result." Felix v. Fraternal Order of Police. Philadelphia Lodge No.5. 759 A.2d 34, 37 (2000), The Defendants relied on information presented to them by the Plaintiff in order to make their decision to purchase Pete's Cafe. "[D]efendants have received information that Plaintiff artificially increased the sales volume shown on the financial records of the business prior to Defendant's purchase." (Petition to Open Confessed Judgment #6). As also asserted in Defendants Petition to Open Confessed Judgment, "Plaintiff had paid a number of employees 'under the table' which increased the out-of-pocket costs to the Defendants by over $1,000 per week. This information had never been conveyed to the Defendants prior to their signing of the Agreement," (Petition to Open Confessed Judgment #5). Fraud is a "question of fact" and therefore is always a question for the jury. Greenwood, at 373. Under Pennsylvania Rules of Civil Procedure ~2959(3)(e) there is no longer a requirement of "convincing evidence" to open a confessed judgment. Pa.R.C.P. ~2959(3)( e). The . requirement to open a confessed judgment is that of "clear, direct, and precise and 'believable' " evidence." Suburban Mechanical Contractors. Inc, v. Leo, 348 Pa.Super. 324, 502 A.2d 230, 232 (1985) citing from First Pennsvlvania Bank. N.A. v. Lehf. 293 Pa.Super. 189,201-202,438 A.2d 600, 607 (1981). Defendants had contacted a former employee of the Plaintiff who had completed the monthly financial status reports for the business. The employee informed the Defendants that the Plaintiff would alter the figures before the Plaintiff s accountant would ,,,-__,",,~L-.._ ~- ~~ _ 1 I,~ _ ,--I - ""'..- .,' lilli;t;i!llIlltillii"I!",,",''''WI!\~$, , < , . 1 review the Plaintiff's financial reports, thereby artificially increasing the sales volume of the business. The employee also informed the Defendants that the Plaintiff would frequently borrow from her line of credit to keep the business running. This information was discovered after the Defendants had in fact entered into the Agreement to purchase Pete's Cafe. This information would have been pivotal in the Defendants' decision to purchase Pete's Cafe had the Plaintiff disclosed the correct facts to them. WHEREFORE, Defendants, Ira McManus, Jr., Leslie J. McManus, James R. Dunkle, and Karen L. Dunkle, respectfully requests that this Court open the judgment by confession of October 3, 2000 in the above-captioned matter. Date: c0 By: Anna Marie So ill # 32808 204 State Street Hanisburg,PA 17101 717-233-1000 Attorney for Defendants " -''''~. '"~~ ~~d. M" J...~"J~.L , .. ) " EXHIBIT 1 I" < , ", '~"r.11llil~,1,,'-";" , ...l viiil~ ~~. . ~~~~I "'. ~,~.~~ ~ ,.,.1 .,1 .....""'lf~~;ul:.,,-<"""'''''';'''''''''''''~''''ii . . . . > INSTALLMENT SALES AGREEMENT THISAGREEMENTmadethis /\j/ day of !9i/;eI{. ,1999, by and between FERN L. WlLSON, of New Cumberland, Cumberland County, Pennsylvania (hereinafter referred to as "Seller") and IRA J, McMANUS, JR. And LESLIE J. McMANUS, his wife, ofMalaga, New Jersey and JAMES R. DUNKLE and KAREN L. DUNKLE, his wife, of Camp Hill, Pennsylvania (hereinafter referred to as "Buyers"), WITNESSETH: WHEREAS, Seller is presently the owner of a certain parcel of real estate known as 401-403 Market Street, New Cumberland, Cumberland County, Pennsylvania (hereinafter referred to as the "Premises"), which premises are more particularly bounded and described in Exhibit "A"; WHEREAS, Seller agrees to sell and Buyers agree to purchase said Premises under and subject to the terms and conditions set forth herein; -. WHEREAS, Buyers are additionally purchasing from FernRock-Snyder, Inc., a Pennsylvania corporation of which Seller is the principal, certain assets used and useful in operation of a bar, restaurant and catering business known as Pete's Cafe, which Agreement is attached hereto as Exhibit ~~,_".I" >_ ~, - L L~ ~ ~~. ~"'"~ "_j-",""""&a"-;~.,,,,,', " . . "B" and incorporated herein by reference; WHEREAS, purchase of real estate by Buyers pursuant to this Agreement is contingent upon successful consummation of Buyers' purchase of said assets of Pete's Cafe and complete satisfaction of all payments due pursuant to said Agreement attached as Exhibit "B"; NOW TIiEREFORE, in consideration of the mutual covenants contained herein and intending to be legally bound hereby, the parties hereto, on behalf of themselves, their heirs, successors and assigns, agree as follows: 1. Incorporation of Recitals. The recitals set forth in the above whereas clauses are incorporated herein as substantive provisions of the parties' agreement. 2, Real Estate, The Seller agrees to sell and the Buyers agree to purchase all that certain premises situate in the Borough of New Cumberland, Cumberland County, Pennsylvania, as more specifically described in Exhibit" A" attached hereto and incorporated herein by reference, 3, Purchase Price, The purchase price to be paid by the Buyers shall be the sum of Two , , Hundred Ninety-five Thousand ($295,000,00) Dollars, to be paid as follows: "<".~ ',' (a) Thirty Thousand ($30,000.00) Dollars upon Closing of the parties' business asset acquisition of Pete's Cafe as set forth in Article 10 of the Asset Purchase Agreement 2 d"""'~ .........."." .~ - ~ ~IiIL....-. ~~=~*"w;i-'(.; I L attached as Exhibit "B", (b) The principal sum of Two Hundred Sixty-five Thousand ($265,000.00) Dollars shall be paid in eighty-four (84) equal monthly installments subject to the adjustment as set forth in paragraph (c) hereof Interest shall be at the prevailing applicable federal rate (mid term) at time of Closing but not less than 5,25% amortized over a twenty (20) year period, A balloon payment shall be due for the remaining balance on the first day of the eighty-fifth (85~ month following Closing as defined in Article 10 of the Asset Purchase Agreement attached as Exhibit "B". "":Jl \ Specifically, assuming an interest rate of 5,25%: (1) Monthly payments of One Thousand Seven Hundred Eighty-five and 69/100 ($1,785,69) Dollars for eighty-four (84) payments with the first payment being due on the first day of the first calendar month following Closing and on every first day of the next eighty-four (84) months. If any payment is not made by the tenth (10th) day of the month, Buyers shall pay an additional five (5%) percent of the monthly payment due as penalty, Said late charge shall be paid by Buyers to Seller with the monthly installment due and owing, The full balance of Two Hundred Two Thousand Four Hundred Sixty-eight and 41/100 ($202,468.41) Dollars shall be due on the furst day of the eighty-fifth (85th) month following Closing, A copy of the Amortization Schedule is attached hereto as Exhibit "C", ( c) Buyers shall have the right to prepay the purchase price, However, said right to prepay is specifically contingent upon Buyers simultaneously satisfYing all sums due 3 ;11, L~ _J 0",. "1'r "iillI~..,",~V.~_,''''~"'' . . and payable pursuant to the Asset Purchase Agreement attached as Exhibit "B", (d) All of the above stated payments are to be made payable to Fern 1. Wilson at 68 Cumberland Road, Lemoyne, Pennsylvania 17043 or such other address as Seller may advise, Should Buyers fail to make the monthly installment payment in full, as provided in the paragraph 3(a) or 3(b) hereof within fifteen (IS) calendar days after the same shall be due and payable, then Buyers shall pay an additional five (5%) percent of the payment due as penalty. Said late charge shall be paid by Buyers to Seller with the installment due and owing, 4, Transfer of Title to the Premises, On the payment of the full purchase price, title to the premises shall be conveyed from Seller to Buyers at final settlement. ' Final settlement shall occur in accordance with Paragraph 23 of this Agreement. Transfer of the real estate shall be by special warranty deed and title shall be free and clear of all liens and encumbrances except those easements and restrictions presently of record, and also subject to any liens or encumbrances which Buyers may have caused to be created during the term hereof Seller, upon the execution of this Agreement, shall deliver to the law firm of Barbara Sumple-SuIlivan, Esquire ("Escrow Agent") a special warranty deed for the real estate executed by the Seller, Escrow Agent shall accept, take custody of, and keep safely the deed, Upon Buyers' presentment to Escrow Agent of proof ~'!;'~ .~ satisfactory to Escrow Agent of the payment in fuIl of the purchase price and Buyers' full performance of all other terms and conditions of this Agreement and all conditions of the Asset Purchase Agreement attached as Exhibit "B", Escrow Agent shall deliver to Buyers the deed to the 4 ~n .",~.L....-, ~' ~ - -- -L~ ,I I ........., \~O'il~; """'-'~,,",,,' . premises. Escrow Agent shall not have any duty or obligation to take any action with respect to the collection of any of the indebtedness represented by this Agreement or the Asset Purchase Agreement attached as Exhibit "B" or to otherwise act with respect to these Agreements, except that, upon presentment of receipts or other acknowledgment or proof of payments of the obligation hereunder, Escrow Agent shall deliver the deed in its custody to Buyers, 5, Possession of Property. Buyers may enter into possession of the property and continue in such possession for and during the life of this Agreement, Possession shall commence with the satisfactory Closing of the Asset Purchase Agreement attached hereto as Exhibit "B", Buyers shall maintain such premises and all improvements thereon in good repair, and shall pennit no waste thereof and shall take the same care thereon as a prudent owner would take, 6, Assignment. Buyers shall make no transfer or assignment of their rights pursuant to this Agreement to any third party without the express written approval of the Seller. Seller may assign its rights under this Agreement with notice to Buyer. 7. Municipal or State Improvements, Buyers agree to pay for any and all improvements to the premises done or ordered to be done by any municipality or state authority ,during the term of this Agreement and to comply at their own cost and expense with all notices "'~''p! "'1-. received from public authorities from and after the date hereof. 8, Tans and Assessments, Buyers agree to payor to cause to be paid to the 5 j,~_' ,", ~ ~ - i ~~, lIIil- , '." ~.. L. ~ I '" ' --"""--""'"'0" appropriate governmental authority as an addition to the purchase price, before they would become delinquent, an amount of money equal to all real estate taxes, including township, county, and school taxes, assessments, water rents, sewer rents, and charges and other governmental charges, general and special which are assessed or imposed upon or chargeable against the Premises at any time after the date hereof and thereafter throughout the tenns hereof as if the Premises and all improvements thereon were owned by Buyers unless such taxes or assessments are being contested in good faith and Buyers has provided adequate security for the payment thereof pending final adjudication, All property real estate taxes shall be prorated to the date of this Agreement. Buyers shall provide Seller with proof of payment of said indebtedness within fifteen (15) days after the due date for said expense, In the event of Buyers' failure to make said payment on a timely manner, Seller may make the payment on behalf of Buyers and give notice to Buyers of their default pursuant to Paragraph 18 of this Agreement. Failure of Buyers to timely cure said default, if possible, shall result in imposition of remedies reserved to Seller pursuant to Paragraph 19 hereof 9. Prorating of Expenses, Expenses for goods and services such as utilities, sewer, water, delivered prior to Closing shall be paid by Seller and expenses for goods or services delivered after closing shall be paid by Buyer, Proration of same shall occur at the Closing as set forth in Article 10 of the Asset Purchase Agreement attached hereto as Exhibit "B", ~'....;,;..., ~\- 10, Damage and Condemnation, Damage to or destruction of all or any part of the Premises by fire or any other cause of taking of all or a portion of the Premises by condemnation shall not terminate this Agreement or cause any abatement or reduction in the payments to be made by 6 ,.I, ;j ,~ ~'<I\'ll....liI!l!;;&f""';;. . Buyers or otherwise affect the respective obligations of Seller and Buyers, 11. Proceeds of Insurance or Condemnation, The proceeds of any condemnation proceeding or proceeds of any insurance attributable to any loss or damage to the Premises shall be applied to the purchase price of the Premises damaged or condemned, 12, Improvements. Maintenance. Repairs and Alterations, Buyers agree to maintain the Premises in good repair, order and condition (reasonable wear and tear excepted whether structUral or otherwise) and shall pay all other costs and expenses arising out of the occupancy and use of the Premises, but not limited to all public utility charges and utility connection charges, Buyers shall comply with all housing code standards, fire safety or other governmental requirements now in effect or hereafter enacted that involve the subject premises, Buyers will not undertake or permit any demolition or structural alteration or addition or improvement to the Premises without written consent of Seller, which consent shall not be unreasonably withheld. All alterations or additions to the Premises undertaken by Buyers shall become part of the Premises, " Buyers shall not remove or pennit the removal from the Premises of any building or ~''"-;'' other improvement located thereon without the written consent of Seller in writing nor shall Buyers commit any waste on the Premises or any building or any improvement thereon, Buyers shall indemni1Y and hold Seller and the Premises of Seller, including Seller's interest in the premises, free 7 ..I =00 " ~ , 0 '. ,I,. " ". """O~Ii'JIA and hann1ess from liability from any and all mechanics' liens or other expenses or damages resulting from any renovations, alteration, buildings, repairs or other work placed on the premises by Buyer. Buyer shall make no material alterations to premises in excess of Five Hundred ($500,00) Dollars without the express written permission of the Seller, 13, Property, Buyers agree and warrant that they will keep the entire Premises and its contents insured against loss or damage by fire with extended coverage, The aforesaid insurance shall be in an amount ofat least 100% of the replacement value, but not less than Four Hundred Twenty- five Thousand ($425,000,00) Dollars, All such policies or any additional fire insurance carried by Buyers on the Premises shall name Seller as additional named insured, Buyers shall provide to Seller proof of coverage on an annual basis, 14, Liability Insurance, Buyers shall provide comprehensive general liability insurance with minimum limits of One Million ($1,000,000,00) dollars, All such policies carried by Buyers shall name Seller as additional named insured, Buyers shall provide to Seller proof of coverage on an annual basis. 15, Indemnification of Seller and Waiver of Claims, Buyers covenant and agree to "<p~ptect, exonerate, defend and indemnifY and save Seller hann1ess from and against any and all claims of liability which on or after the date of Closing may arise out of Seller's ownership of the Premises thereof and from and against any and all loss, damage, cost or expense or liability based upon personal injury, debt, loss or damage to property suffered or incurred by any person, firm or 8 " ~ ,"',I ~ '" ,",'4 ~' ,', '~-'l"'t",,' corporation (including the parties hereto) and arising out of or attributable to the presence, condition, use, operation, or maintenance of the Premises except when due to the willful misconduct of the Seller, Seller shall give written notice to Buyers of any claims asserted against Seller within ten (10) days time after such claim becomes known to Seller. If such claim is otherwise made known to Buyers, then Seller shall be under no duty to advise Buyers of said claim, In any action or proceeding except for the willful misconduct of Seller, brought against Seller by reason of any claim, Buyers, upon notice from Seller, covenant and agree to resist or defend any such action or proceeding and to provide legal counsel, at Buyers' cost, for defense of any such claim, Seller agrees to cooperate and assist in the defense of any such action or proceeding if reasonably requested to do so by Buyers, at Buyers' expense, Buyers further agree to indemnifY and hold Seller harmless from any and all costs (including attorney fees and costs) associated with defense of any claim or cause of action including all costs and expenses, including attorney fees, for enforcement of this indemnification, 16, Inspection, Buyers will at all times provide Seller with reasonable access to the Premises for the purpose of inspection or view of the Premises, 17, Recording, A Memorandum of Sale can be recOrded by either party, "'.,':;" 18, Events of Default. Each of the following events is hereby defined as and is declared to be constituted as, an event of default: (a) Failure by the Buyers to make the payments required to be made hereunder as part of 9 ..l " L '_b! ~'~~b,.,'" the purchase price within thirty (30) days after the same is due; or (b) Failure by the Buyers to observe and perform any other covenant or condition or agreement on their part to be observed or performed under this Installment Sales Agreement for a period of thirty (30) days after written notice specifYing such failure and requesting that it be remedied, given to the Buyers by the Seller or her agent; or (c) If any of the Buyers shall file a voluntary petition in bankruptcy or make an assignment for the benefit of creditors or failure by the Buyers to contest any execution, garnishment or attachment as will impair its ability to carry out their obligation under this Agreement, or the commission by the Buyers as a bankrupt, or the entry by the Buyers into an agreement or composition with their creditors; or the approval of a Court of competent jurisdiction of a petition applicable to the Buyers in any proceeding for a consolidation of creditors under the provision of the general Bankruptcy Act, as amended, or under any similar act which may hereafter be enacted which is not dismissed within sixty (60) days, (d) Having occur any act or omission by Buyers which is deemed to be a default pursuant to Article 5 of the Asset Purchase Agreement attached hereto as Exhibit "B", ::: ~;.:t ','. 19, Remedies on Default, Whenever any event of default referred to herein shall have happened and be existing. anyone or more of the following remedial steps may be taken: 10 -1' .~ I.. " , ~ 1.'W"~"'k~.,", (a) Seller may perform for the account of Buyers any covenant or obligation in the performance of which Buyers are in default, in which event, Buyers shall immediately pay to Seller all amounts paid by Seller, together with reasonable counsel fees, as well as with interest at the rate of ten (10%) percent per annum from the date of payment by Seller. (b) Seller may declare all sums which Buyers are obligated to pay to Seller pursuant to this Agreement, together with interest accrued thereon, immediately due and payable in fulL IN SUCH CASE OF DEFAULT, BUYERS HEREBY AUTHORIZE AND EMPOWER ANY ATTORNEY OF ANY COURT OF RECORD IN THE COMMONWEALTII OF PENNSYLVANIA OR ELSEWHERE TO APPEAR FOR BUYERS AND CONFESS A JUDGMENT FOR THE ENTIRE PRINCIPAL SUM AND INTEREST REMAINING UNPAID THEREON, WITII TEN (10%) PERCENT ATTORNEY'S COMMISSION OR FEES, HEREBY WAIVING THE RIGHT AND EXEMPTION AND INQUISITION, SO FAR AS THE PREMISES HEREINDESCRlBED, AND ANY PROPERTY OR BUILDING THEREON MAY BE CONCERNED, ~\~..r "\'.. Buyers hereby irrevocably authorize and empower any attorney of any Court of record of Pennsylvania or elsewhere to appear for and confess judgment against Buyers for all amounts for which Buyers may be or become liable to Seller or her assignee under this Agreement, as evidenced by an affidavit signed by an agent of 11 ",~ ~~" I ....'.;'~ .'t ,h, , ii, '_~r~-"""," Seller or of assignee setting forth the amounts then due plus ten (10%) percent thereot; as an attorney's fee, with costs of suit and release of errors, Such authority shall not be exhausted by anyone exercise thereof but judgment may be confessed as aforesaid from time to time as often as there is a default hereunder, ( c) Seller may terminate this Agreement and resell the Premises at a private or public sale and Seller will apply the monies collected under such resale, to any amounts outstanding hereunder, Buyers shall remain liable for any deficiency after the application of the proceeds, If such proceeds are in excess of the amount required to satisfY the total due from Buyers to Seller under the terms of this Agreement, then the proceeds shall be used first to reimburse Seller the costs of sale and collection, including counsel fees often (10"10) percent. Any remainder after said reimbursement shall then be tendered to Buyer, (d) Seller may declare this Agreement to be null and void and enter into possession of the Premises and retain all sums paid hereunder to the date of default as liquidated damages, (e) Seller may proceed by action of ejectment on this Agreement after default for recovery of said premises; in such case, BUYERS HEREBY AUTIIORlZE AND EMPOWER ANY ATTORNEY OF ANY COURT OF RECORD IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR 12 -" i......=,~_ I" .,1 ~~.~~'~ ",<'___ru FOR BUYERS AND CONFESS JUDGMENT OF EJECTMENT, AND AUTHORIZE THE IMMEDIATE ISSUING OF A WRIT OF POSSESSION AND EXECUTION (WITIIOUT ASKING LEAVE OF COURT) FORTHE COSTS AND TEN (10%) PERCENT ATTORNEY'S COMMISSION OR FEES, WAIVING ALL STAY AND EXEMPTION LAWS, The Buyers hereby waive and release all errors, defects and imperfections whatsoever of a procedural nature in the entering of any judgment or any process or proceedings arising out of this Agreement. Buyers also waive the benefit of any laws which now or hereafter might authorize the stay of any execution to be issued or any judgment recovered hereunder or the exemption of any property from levy or sale thereunder. (f) The Buyers agree to execute a quitclaim deed with the same to be held by the law firm of Barbara Sumple-Sullivan ("Escrow Agent"), and to be delivered to Seller upon default by Buyers of the obligations of this Agreement which have not been cured within the time limitations specified herein, Seller is authorize to record said quitclaim . deed in the event of default to ensure no record or claim of title shall exist. '::;:;t, < ".;' (g) Take any and all other actions available to Seller at law or equity, 20, Cumulative Rights, No right or remedy herein conferred upon or reserved to Seller is intended to be exclusive of any other right or remedy herein or by law provided, but each shall be 13 ~ ~~ ~,~~ I, ~ ~._- , ~ - <I,," ~ .' " .i-' I. ",'., .~"'.; cumulative and in addition to every other right or remedy herein given or now or hereafter existing at law or in equity or by statute, and may be pursued singly, successively or together at the sole discretion of Seller and may be exercised as often as the occasion therefor shall occur. 21. Realty Transfer Tax, Any realty transfer tax or taxes imposed upon the transfer of the real estate sbal1 be divided equally between the Buyers and Seller at Final settlement as set forth herein in paragraph 23, 22, Seller's Warranty, Seller warrants that no notice of any governmental apthority has been issued or served upon the subject property or any occupancy thereof or up()n the Seller or agents of Seller prior to the signing of this Agreement calling attention to any violl\tion of any building, fire, safety or other ordinance or requirement or calling attention to the need of any curbing, recurbing, paving, repaving or other construction or improvement on or about the subjt;ct premises or removal of any nuisance, There are no lawsuits pending or anticipated against Seller that involve the subject real estate, No municipal or other governmental improvements affecting the subject premises are, as of the date of this Agreement, in the course of construction or installation and to the best of the knowledge of Seller, no such improvements have been ordered to be made, ~~'";i , 23, Environmental Warranty. No hazardous waste, hazardous or toxic materials or wastes or products regulated by any law or ordinance have been stored, treated at or disposed of by Seller on the real property, and, to the best of Seller's knowledge, have never been stored at, treated, or disposed of on the real property by Seller or by any other individual or entity, No asbestos or 14 " ~ ~'" I" ,....,-1,- . ~" ..~...... ~ ~ fi;i!li", asbestos products or materials or polychlorinated biphenyls or urea fonnaldehyde insulation have been stored at or disposed of on the real property, Neither the property, nor the use or operation thereof by Seller, or any tenant of the property, (I) violates, or is alleged by any person or entity to violate, or is not in compliance, or is alleged by any person or entity not to be in compliance, with any land use, environmental, hazardous material, and/or waste handling, storage, treatment, disposal or discharge laws or other laws, building codes, zoning or other ordinances, rules or regulations, fire insurance regulations, state labor department regulations, or covenants, conditions and restrictions whether state, federal, local or private; and (ii) there has not occurred, nor has any person or entity alleged that there has occurred, upon the property, nor any parcel, any spillage, leakage, discharge or release into the air, soil or ground water of any hazardous materials or regulated waste. 24, Final Settlement. It is agreed by and among the parties hereto that final settlement shall be held on the eighty-fifth (85th) month anniversary of Buyers' execution of this Agreement, or earlier, if Buyers exercise their right of prepayment, subject to the extensions permitted under paragraphs set forth above, TIME SHALL BE OF TIlE ESSENCE, Seller agrees that, at the time offinal settlement, Seller will furnish Buyers, upon payment of the principal and interest and balance then due and owing, a special warranty deed conveying good and marketable title to the premises to existing easements and restrictions of record, which deed has been executed by Seller prior to or ~ e.ontemporaneously with the execution of this Agreement, and which deed will be held in escrow by '::',$ B;bara Sumple-Sullivan, Esquire, of New Cumberland, Pennsylvania. 25, Buyers' Option to Take Title. In the event that Seller is unable to give a good and 15 . L~ ~ ~ , ~~ > ~~~"'-c-""""",;;,,,,,,,,,.,, marlcetable title subject to the previous conditions oftitle referred to hereinabove, Buyers shall have the option of taking such title as Seller is able to give, with an abatement of price, equal to the costs of correcting the title defect, 26, Litigation, Should any litigation be commenced between the parties hereto concerning said property, this Agreement, or the rights and duties of either in relation thereto, the party prevailing in such litigation shall be entitled, in addition to such other relief as may be granted, to a reasonable sum as and for their attorneys' fees in such litigation which may be determined by the Court in such litigation or in a separate action brought for that purpose, 27, Entire Agreement, This is the entire Agreement by and between the parties hereto and this Agreement shall be binding on and inure to the benefit of the successors, heirs, personal representatives and assigns of the parties hereto, Nothing in this paragraph shall be construed as a consent by Seller to any assignment of this Agreement, 28, Waiver, The waiver of any breach of this Agreement by either party shall not constitute a continuing waiver or a waiver of any subsequent breach, either the same or another provision of this Agreement, ",,'-;. 29, Modification, No modification of this Agreement shall be binding upon the parties hereto unless the same shall be in writing and duly executed by the Buyers and the Seller. 16 - - L _~~ - I "~^I!l~...~~;"t 30, No Existing Leases, Seller warrants that no portion of the premises are subject to any existing rental or lease agreements, IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, hereunto set their hands and seals the day and year first above written, WITNESS: J;/u-cld~ FWL, Wilson, SeIler (SEAL) ) s, Jr., Purchaser AL) (SEAL) EAL) .: ~:-:i .~: 17 .... "" .J"~ .. .-,., ~ ::::1 EXHIBIT "An :1 'l!;i;l~".' , L~ .,~ ,- ,1.i2...."", ,'. .~. '~"", '~,' J."~ .Made the ~T>f , in the year 1J,m:<- day of .\,'in-eteen hundred an-d seventy-nine (1979) ~..hn.tt'n FERN' L. PARENTI, a/k/a FERN L. WILSON, single person, of <;;;--~erland, Cumberland County, Pennsylvania, GRANTOR. '\ A N D FERN L. WILSON, single person, of New Cumberland, Cumberland County, Pennsylvania, GRANTEE. ~a:u.e!i!iet;, That in consideration of One Dollar ($1.00) "'" - ~.. . ~;::g "-" ~;g , _.",,'21'" "",:;zI~~ ;r-..... :~~~ V'I ,c:o~= ""'. -,:) c. ,,=~ -- ~t~~E: ~ % "" ~ 'Dollars, = in kand paid, the receipt .whereof is hereby acknowledged, the said tr..ap-tor d.o es hereby tran.t an.d convey to the sUI:d ~rantee. her heirs and assidns, ALL THAT CERUlN lot or tract of land situate in the Borough of New Cumberl.and, Cumbe,rland County, Pennsylvania, more particularly bounded: and described ill accordance with a survey by Michael C. DiAngelo, Registered Surveyor, dated October 22, 1976, as follows, to wit: BEGINNING at a point at the northeast corner of Market. Street and Fourt.h Sl:reet. said point being the point of intersection of the. external walls of buildings Nos. 401 and 403; thence along the eastern line of Market Street, North 50 degrees 00 minutes West fifty (50) feet to a nail. being the sout.hwest corner of Lot No. 73,; thence along the same North 40, degrees 00' minutes East one hundred five (105) feet to an iron pin; thence along lands: now or formerly of George' E. Pentz and through Lot No. 72, South 50 degrees 00 minutes East fifty (50) feet to an iron pin on the northern line of Fourth Street and on the extension line of the southern external wall of buildings Nos. 401 and 403 '; theDce along said last mentioned line South 40 degrees 00 minutes West one hundred five (105) feet to the Place of BEGINNING. BEING the" greater part of Lot No. 72 on the General Plan of the Borough of N~ Cumberland. Pennsylvania. HAVING thereon erect.ed a two-story brick building known as and numbered 401-403 Market Street. BEING TIlE SAME premises which Thomas A. Parenti and Fern L. Parenti, his wife J by deed dated March 27, 1978, and recorded in' Deed Book "511, Volume 27. Pai~e 244, in tbe Office of tbe 1tecorder of Deeds in and for Cumberland County, Penns~rlvania, granted and conveyed unto Fern L. Parenti. The said Thomas A. Parenti and Fern L. Parenti were divorced under date of October 12, 1978, by Decree of the Court of Common Pleas of Dauphin County, Pennsylvania, to No. 1744-9-1978'. Ihe said Fern L. Parenti on October 20, 1978, elected to resume her maiden name of Fern L. Wilson. ~ ." . ,,:,._ ..:.., _ ._ 1:'~.._ T U;l_~~ ,j . ~, - ~ - ~n 2l1l1iifne.!Ji!i ~ltne;!llf, said grantor . and seal ka S hereunto set her hand the day and year first abot,'e written. ~i9n.~, ~.nl.~ n..lI ~tli,,<r.lI ~n f~t l1rt'9.t"n:Ct' of a.~-t/.:Zwtr ~o:mm_l:lt...U~ of ll'''''''1!I......i.. ~","..11! "f~ Onthi>l.t1Le ~~du-Y()I ~ ehe Ilndt':nitned officer, personally appf'arro . } ""0 19 79 , befort!- m~ a Notary Public., 0' FERN L. PAllElITI, ./k/. FERN L. WILSON ," ...:..,...; -i',.:......-:'. knQW'~ to m.~(u,.~ati."I/tJrturilgprol.en.)to be th,. p~l'srm S whm,e n-amt': is !tufii;~1fJ.1i~lf\"'''''! ~.. imll'ument. and ackl"owledted that she ~-uelLt,..d th." xu.1ne lor- tl~ pu.r~e:t~ete~~n.tci~...-:;. ~. . IX WIT"YESS WHEREO}', I have hereunto.d my h4nd and official.! ..~eal. ~'1S."':'l~~' 1'. ~ --vi /,.' '~~"" . ~?rr .~. " '\l'.:..~:l~,.~~.""" ' _~"~~",~,,,,,,,...n. ._.,. , It!'o'~~ ~:'Tl.-"" ~... ~ .,; ;::r ~>" . ~~~~~" "" ~on"non1:S.",Jl~ "t 1I-""1!I..",..i.. Q:o'U1tlj! of OIL this. t.he day of the un.der,tiened oQicel'. pl!r:wnally appeared } ",,- 10 . b"/Qf'e me known tu mf'{ur~uti:trurtf)rfly /"1>1'1'11-)11) hI' th,. P'''I'iQ'fl, wltwu. namp ltltb$cribeu tu tht with.in j/,.~t"'OIjCl&t. ulld arklwlu/t'djl'ri tlwf h,. "x""~utt'd th,. ,'lame fur l!U' /mrpofle therein ,.rmtain.,.d. I.'~ WJT.\~":SS WHEllt.OF. J lraf~e her6unto .f,.t mil hand anr! seal. ~ ~a.e.h~ ClJ:erlif~ that the precise address of the grantee A-Ol M",rkp.t StrE!et. New Cumbe~1and PA nOlO " / herein i.,; . .... . r~ '1"~' ~!I'1k <:;t :~, EXHIBIT "B" 0:-"'- l.~ " I" 'I-..., .- I~ ' ASSET PURCHASE AGREEMENT BY AND BETWEEN FERNROCK SNYDER, INC. AND MenTINK, INe. ~\-<;. v'o'___"' . ~_-lh"" " ~~.~-'_. .1. ~ - . ',1. 0>.,.1 '. EXHIBIT "e" 'I ~ - ,. ,~ ,', ;'" ,. " ~"-"'"".' ~r-~~~'" .~ .- " I ~I. ""~~~~, , J "~ - _k.. ,'~~ ~~ ". _ 1I "~W";;<iE",*~,",i. Q" ~", .1,. ~ ~ .J -',I ,," " ,'," " ',; ~,.. " ~-"'~";. vi 061999 Page 3 Wilson to McManus/Dunkle Date Payment Interest Principal Balance 67 01 01 2005 1 ,785.69 945.49 840,20 215,272.76 68 02 01 2005 1,785.69 941,82 843.87 214,428,89 69 0301 2005 1,785.69 938,13 847.56 213,581.33 70 04 01 2005 1,785.69 934.42 851,27 212,730,06 71 05 01 2005 1,785,69 930.69 855.00 211,875.06 72 0601 2005 1,785.69 926.95 858.74 211,016,32 73 07 01 2005 1,785.69 923.20 862.49 210,153.83 74 0801 2005 1,785,69 919.42 866.27 209,287,56 75 09 01 2005 1,785,69 915.63 870.06 208,417.50 76 1001 2005 1,785.69 911.83 873.86 207,543.64 77 11012005 1,785.69 908.00 877.69 206,665,95 78 1201 2005 1,785,69 904.16 881.53 205,784.42 2005 Totals 21,428.28 11,099,74 10,328,54 79 01 01 2006 1,785,69 900.31 885.38 204,899.04 80 02 01 2006 1,785.69 896.43 889,26 204,009.78 81 03 01 2006 1,785.69 892.54 893.15 203,116.63 82 04 01 2006 1,785,69 888.64 897.05 202,219.58 83 05 01 2006 1,785.69 884.71 900,98 201,318.60 84 06 01 2006 1,785.69 880.77 904.92 200,413.68 85 07 01 2006 201,29Q.48 876.80 200,413.68 0.00 2006 Totals 212,004,62 6,220.20 205,784.42 Grand Totals 351,288,44 86,288.44 265,000.00 '-';i' ',~""""'~ - , ~ ''^' . I , " '"",",~I," ",,' ,"',,~ "; '~___'"'W" vI 061999 Page 4 Wilson to McManus/Dunkle Last interest amount decreased by 0.01 due to rounding, ~ {,;. . , ,~ =" ~' I .' .1 , ~'~" : -- .' .~, ~ ';'... EXHIBIT 2 ~1fi,-" 'oil!; ~I ~ , ",:,j- . , ASSET PURCHASE AGREEMENT BY AND BETWEEN 'FERNROCK SNYDER, me. AND McDUNK, lNe. ~, - ~, '" =',,= ~ ~ l'.ll~~~ """'"1$"", , , :;:>= ~~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 .,J9 , 20 21 J '. , , h , '~'ili I' ,1'_ " ' TABLE OF CONTENTS Article PlIge No, Assets to be Conveyed, , ' , , ' , , ' , . ' , , , , , . , , , ' , , , , , , , , . , , ' , . . . , , , , " 1 Purchase Price , . ' . , . , , ' , , , . , , , , ' , , , , , , ' , , . , , ' , , , , , , . , ' . , . . , ' , , , , 3 Security, , , , , , , ' , , , , , , , , ' , , , , , , . , , , , , , , , , , . ' , , , , , ' , , ' , , , , , , , , , , 4 Condition Precedent , , , , , , , ' , , , , . ' , , , " , ' , , , . , , , , , , , ' , , , , , , , , . ' , , , 7 Events of Default , , , , , , , , , , , , , , , , , , , , , . , , , , , , , , , ' , , ' . , . , , , , . , ' . , , 8 RemediesonDefault ""',.,",.,",."""""""""".""" 11 Representations and Warranties of Seller .""""""""""""",,12 Covenants "",."""",.""",."""""",.,."""""" 15 Representations and Warranties of Buyers , , , , , , . , , . , , . , , , , , , , , , ' , , ' " 16 Closing Date and Place ',."",',.'"".',.."""",."""",,, 18 Closing Documents "",.,..".".""""""".""""""", 18 Costs and Expenses ,."""""""""."",."""""""",,20 Risk of Loss . , , , , . , , , , , , , , ' , , ' , , ' , , , , , , ' , , ' . , , , , ' . , ' , , , , . . , , ' , , 21 Indemnification """""""'"'"'.."""""""",,,.,,.,, 22 Covenant Not to Compete , , , ' , , ' , , , , , , , . , , . . ' , . , , , , , , ' , , , . , ' , . ' , , 23 Consulting Agreement """."""""""""..""",.""".,23 Notices "",',,",",""',",',"",",",""""""",'" 23 BenefitandAssigmnent ,.",."."""""""""",."""".,,24 Entire Agreement ",.""""",."""""""""""""".,,24 Choice of Law ' , , , , , ' , , ' , , ' , , , , , ' , , , , , , , , , , , , ' , , , , , , , , , , , . , , , ' , 25 Covenant of Further Assurances , , , , , , ' , , , , , ' , , ' , , , , , ' , , , ' , . ' , , ' , , ' , 25 Guarantee & Surety Agreement , , , , , , . , , , , , , , , ' , . ' , , . . . , ' , . ' . , ' , , ' , 26 By McManusIDunkle 1 - ~, ~ I -~ L '~ ,~ ~ ,- ~_'AA<" .. ASSET PURCHASE AGREEMENT !~ ~'l TIllS AGREEMENT, executed this ./.;/' day of ' , , 1999, by and between FERNROCK-SNYDER, INC" a Pennsylvania corporation (hereinafter referred to as "Seller") and McDUNK, INC., a Pennsylvania corporation (hereinafter referred to as "Buyer"), is for the sale and purchase of assets set forth herein used and useful in the operation of bar/restaurant/catering business subject to the prior approval of the Pennsylvania Liquor Control Board (hereinafter "PLCB") and the other conditions contained herein. NOW, TIIEREFORE, in consideration of the mutual covenants of this Agreement and in reliance on its representation and warranties, the parties, intending to be legally bound, agree as follows: ARTICLE 1 ASSETS TO BE CONVEYED On the Closing Date (defined herein), subject to the representations, warranties, conditions ,--1tlld agreements contained herein, Seller shall sell, assign, delivery, transfer and convey to Buyer, and Buyer shall purchase, the following assets (hereinafter "Purchased Assets"), free and clear of all liens, charges, encumbrances and security interests of any nature whatsoever; 1.1 License, P A Liquor Control Board Distribution License No, R-15960 with a Sunday _,......"'._. _J ~~~" L ~I ,', _",,<tiJ,,", Sales Permit and Amusement Permit The sum of SEVENTY THOUSAND ($70,000,00) DOLLARS is allocated herein for this asset. 1,2 Physical Assets, All equipment, furniture, fixtures, the vehicle, inventory, except as set forth in 1,3 below, and other tangible assets owned by Seller and used or useful in the operation of the bar/restaurant business as described in Exhibit" A" ("Tangible Purchased Assets") herein, together with any replacements or additions hereto and less such items as may be consumed or deleted in the ordinary course of business prior to the Closing Date, All items are sold in an "as is" condition, The sum of FORTY-FIVE THOUSAND ($45,000,00) DOLLARS is allocated herein for these assets, 1.3 Liquor and A1eoholic Beverage InventOlY, Seller's inventory on hand of liquor and alcohol beverages is not included for allocation of the purchase price and said value is to be established pursuant to 2.3 hereof 1.4 Intangihle Assets and Business Data, All tangible assets utilized in the operation of the business, including the fictitious name "Pete's Cafe" and the business' good will, All Seller's data pertaining to the operation of the bar/restaurant/catering business, all equipment warranties and ~.;-;;.. data, and customer lists, The sum ofFIFTEEN THOUSAND ($15,000,00) DOLLARS is allocated herein for these assets, 2 ~~"'.~ , " ~J .' '"=-- i ,.1 II" ARTICLE 2 PURCHASE PRICE 2.1 Purchase Price, Subject to the adjustments which may be required by Article 2 2( d) and 2,3 herein, the Purchase Price for the purchased assets shall be ONE HUNDRED THIRTY ($130,000,00) DOLLARS, 2,2 Payment of Purchase Price. The purchase price shall be paid as follows: (a) FIVE THOUSAND ($5,000,00) DOLLARS to Barbara Sumple-Sullivan, Esquire, attorney for Seller at signing, to be held in escrow until Closing, Said FIVE THOUSAND ($5,000,00) DOLLARS shall be paid to Seller, FernRock-Snyder, Inc, at Closing, (b) TEN THOUSAND ($10,000,00) DOLLARS shall be paid to Seller at Closing. (c) The remaining ONE HUNDRED FIFTEEN THOUSAND ($115,000,00) DOllARS to be paid in eighty-four (84) equal montWy installments, Subject to adjustments as set forth in paragraph 2.2( d) hereof, interest shall be at the prevailing applicable federal rate (mid tellll) at time of Closing but no less than 5.25% amortized over a twenty (20) year ~ ~"i> 'i period, A balloon payment shall be due for the remaining balance on the first day of the eighty-fifth (85th) month following Closing: Specifically, assuming a 5,25% rate: (1) MontWy payments of SEVEN HUNDRED SEVENTY-FOUR and 92/100 3 ,- ;!l;i~>>i'''=-' _~L ~ ,', >, "'''''''''''''-:11.>;'0 . , ($774,92) DOLLARS for eighty-four (84) payments with the first payment being du(' on the first day of the first calendar month following Closing and on every first day of the next eighty-four (84) months, Ifany payment is not made by the tenth (10th) day of the month, Buyer shall pay an additional five (5%) percent of the monthly payment due as penalty, Said late charge shall be paid by Buyer to Seller with the monthly installment due and owing. The full balance of EIGHTY-SEVEN THOUSAND EIGHfHUNDRED SIXTY-THREE and 86/100 ($87,863.86) DOLLARS shall be due on the first day of the eighty-fifth (85th) month following closing, A copy of the proposed Amortization Schedule is attached as Exhibit "B" (d) Buyer shall have the right to prepay the purchase price, However, said right to prepay is specifically contingent upon Buyer simultaneously satisfYing all sums due and payable pursuant to the Installment Sale Agreement dated even date herewith between Buyer's principals, McManus, Dunkle, and Fern L. Wilson, 2,3 Purchase ofInventory, In addition to the above referenced purchase price, Buyer shall pay to the Seller, FernRock-Snyder, Inc" an additional sum representing the actual value of the alcoholic beverage and liquor inventory on hand at date of Closing, as approved by Buyer. The '.'--.. " -\ inventory shall be valued at cost and determined on the date of Closing by mutual accounting between the parties, ARTICLE 3 SECURITY 3,1 Financing Statements and Encnmbrances, To secure Buyer's obligation hereunder, 4 ~~'... _.~ L ~~- ..1 " . -' '-'mw, Buyer shall deliver to Seller Uniform Conunercial Code financing statements to encumber all said accounts receivables, fixtures, the vehicle and equipment, Further, encumbrances shall be made on all motor vehicle title certificates at the Conunonwealth of Pennsylvania Department of Motor Vehicles, Seller agrees to promptly release said liens upon Buyer's satisfaction of payments due and owing in accordance with Article 2,2 hereof Seller agrees to cooperate with release of any of these security interests if new equipment or vehicles are sought to be purchased by Buyer provided Buyer will allow substitution of a similar interest on the substituted property and said substituted property has equal or greater equity value, 3.2 Stock Restrictions, In addition to the financing and encumbrances set forth in 3,1 above, Buyer shall agree to adopt a restrictive corporate bylaw which will provide that the PLCB Distribution license with Sunday and Amusement permit to be conveyed to Buyer pursuant to this Agreement shall be held by Buyer and not sold, transferred, encumbered or assigned as long as any sums are due and owing by Buyer pursuant to this Asset Purchase Agreement or any sums are due and owing pursuant to the Installment Sales Agreement between Wilson, McManus and Dunkle or the Non-Competition and CollSlilting Agreement executed of even date hereof This corporate bylaw restriction shall not be amended, rescinded or repealed except with the express written consent of Fern L, Wilson, President of Seller, . :'.;<: , Seller and Fern L. Wilson, individually, shall have a lien on all issued and outstanding stock of Buyer which is issued and/or is outstanding at any time prior to a full payment of all sums due under this Agreement or the Installment Sales Agreement or Non-Competition and Consulting 5 ......~- ~ ~ I ." .~ -'~'~itri'" , , Agreement set forth above, All stock shall be held pursuant to a security agreement which shall be executed at Closing, which Agreement shall be drafted by counsel for Buyer and approved by counsel for Seller, Seller shall have the right to vote such shares only in the event of default by Buyer pursuant to this Agreement or in the event of any default pursuant to the Installment Sale Agreement and Non- Competition Agreement and Consulting Agreement executed of even date. 3.3 Pledge of Stock. Buyer shall pledge to Seller (including physical delivery of) all of their authorized and outstanding capital stock in a form satisfactory to Seller's attorney whereby Seller shall become the sole and unconditional owner of all of Buyer's capital stock in the event Buyer's uncured default hereunder as defined in Article 5, In order to assure compliance with the foregoing, Buyer has caused to be deposited with Seller's attorney, Barbara Sumple-Sullivan, Esquire, the certificates for the shares of stock required under paragraph 3.2 and 3.3 hereinabove, Said stock is to be delivered to Attorney Sumple- Sullivan at Closing and held in escrow pending satisfaction of the indebtedness, Buyer shall provide Seller with a true and accurate copy of its bylaws, certified by its secretary, indicating compliance with clause 3,2 above, ~'~',~ , Upon satisfaction of the payments of the respective obligation required in 3,2 ofthis Agreement, Seller agrees to cancel the pledge of stock required and return said stock certificate to Buyer. 6 <...~O" ." .1 ~ I,'. i..," ,.j", .. ~~~ ~t::.~; 3.4 Judgment Note, Buyer together with Ira 1. McManus and Leslie 1. McManus, his wife and James R. Dunkle and Karen L. Dunkle, his wife, jointly and individually, agree to make, execute and deliver to Seller at the time of Closing an executed judgment note supporting the unpaid obligation owing to Seller. 3.5 Assignment ofLea.~es, Buyer agree to make, executed and delivery to Seller at the time offinal Closing, an assignment of all leases and rental income from the property owned at 401- 403 Market Street, New Cumberland, PA, ifany, ARTICLE 4 CONDmONPRECEDENT 4,\ PLCD Approval. Consummation of the purchase and sale provided herein is conditioned upon the PLCB having given its consent to the transfer of the license and pennits to Buyer without any condition materially adverse to Buyer, If said transfer oflicense and pennits are denied for any reason other than Buyer's failure to diligently and in good faith pursue the transfer, this Agreement shall be deemed canceled and the escrow deposit set forth in Article 2,2(a) hereunder shall be returned to Buyer, and the parties shall be under no further obligations to each other. ~i'~ .~ 4,2 Filing of Application, The parties agree to proceed as expeditiously as practical to file or cause to be filed an application requesting PLCB approval to the transactions set forth herein, The parties agree that said application shall be filed with the PLCB on or before twenty (20) days of the date hereof and that it will be prosecuted in good faith and due diligence, The parties agree to use 7 .. m~h ~~-' II, . ,b,&. "~I )'. """'-~~~.l'",," their best efforts to file additional information or amendments requested by the PLCB. Each party will be solely responsible for the expenses incurred by it in the preparation, filing and prosecution of the application, Buyer shall pay all costs and fees due to the PLCB or required by Rules and Regulations of the PLCB. 4.3 Time for Approval- Termination, This Agreement may be terminated by Seller without liability, if, after sixty (60) days of the date of this Agreement the PLCB should fail to act upon the application to transfer the license and permit, If this Agreement is terminated pursuant to this Article, the Escrow Deposit set forth in Article 2,2(a) shall be returned to Buyer and the parties shall be under no further obligation to each other. 4.4 Purchase of Real Estate, This Agreement is conditioned upon the satisfactory closing of the real estate transfer agreement between Fern L. Wilson and Ira 1. McManus, If. and Leslie J. McManus, his wife and James R. Dunkle and Karen L. Dunkle, his wife, ARTICLE 5 EVENTS OF DEFAULT 5,1 Events of Default. The following shall be "Events of Default" under this Agreement "~';',.r . and the tenn "Events of Default" or "Default" shall mean, wherever they are use in this Agreement, anyone or more of the following events: (a) A failure to perform or breach of any of the material warranties, 8 \~~~ ~"O ",:.> ",,.. , - L .1-, ,I ~'J " '~ "T ,:~Iik,. I , ~'" ,". representations, covenants or obligations of the Seller or Buyer as set forth in this Agreement; (b) A failure on the part of Buyer to make any of the payments within thirty (30) days of the due date required to be made in this Agreement specifically including, but not limited to, those payments required under Article 2 hereof; (c) A failure on the part of the Seller or the Buyer to perform their respective obligations in Article 4; (d) A failure on the part of Buyer to keep and maintain the PLCB Restaurant License and Permits as issued by the PLCB valid and in good standing by failing to pay all fees and charges required to keep, maintain and renew said license and permits, and to keep and observe all laws, rules and regulations governing the use of the License, The following standard shall be utilized in determining Buyer's breach or default in failing to keep and observe all laws, rules and regulations: Any conduct by Buyer in the operation of said business which results or could result in citation or citations issued by the Pennsylvania Liquor Control Board which would justifY a revocation of the license or permits in light of past rulings of said Board and court decisions as compared to minor suspensions; or, in the event of a sufficient number of citations which normally result in minor suspensions of the license or permits but because of the number and frequency of the citations, place the license in jeopardy of revocation in the event of an additional citation being issue. ( e) The Seller or Buyer shall file a voluntary petition in bankruptcy or shall be adjudicated a bankrupt or insolvent or shall file any petition or answer seeking any 9 - ",'I<<la'~ I " ~ '~'. .-,- "'. .a"~.!~'~~'E reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief for itself under any present or future federal, state or other statute, law or regulation related to bankruptcy, insolvency or other relief for debtors; or if Seller or Buyer shall seek consent to or acquiescence in the appointment of any trustee, receiver or liquidator of the Seller or Buyer or shall may any general assignment for the benefit of creditors; (f) A petition shall be filed against Seller or Buyer seeking any relief under the kinds of laws and regulations related to bankruptcy, which petition shall not have been dismissed for an aggregate of thirty (30) days or if any trustee, receiver or liquidator of the parties shall be appointed without consent or acquiescence of the respective party hereto and such appointment shall remain unvacated for an aggregate of thirty (30) days, Then, in the event anyone of the foregoing events occur, a default shall exist hereunder. 5,2 Waiver of Default. No delay or omission to exercise any right or power occurring upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercise from time to time and as often as may be deemed ....,~,;.. eipedient. In the event any agreement, warrant, representation, covenant or obligation should be breached and thereafter waived by the other party, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other breach hereunder. 10 w-.. "~"l........ , . ,I ~ ~~.~,.t\"'-", ~ I~" .~ . " ARTICLE 6 REMEDIES ON DEFAULT 6,1 Remedies on Default. Whenever any event of default referred to herein shall have happened and be existing, anyone or more of the following remedial steps may be taken: (a) (b) ....;~~ ...." Seller may perform for the account of Buyer any covenant or obligation in the performance of which Buyer are in default, in which event, Buyer shall immediately pay to Seller all amounts paid by Seller, together with reasonable counsel fees, as well as with interest at the rate of ten (10%) percent per annum from the date of payment by Seller. Seller may declare all sums which Buyer are obligated to pay to Seller pursuant to this Agreement, together with interest accrued thereon, immediately due and payable in full, IN SUCH CASE OF DEFAULT, Buyer HEREBY AUTHORIZE AND EMPOWER ANY ATTORNEY OF ANY COURT OF RECORD IN THE COMMONWEALTH OF PENNSYLVANIA OR ELSEWHERE TO APPEAR FOR Buyer AND CONFESS A JUDGMENT FOR THE ENTIRE PRlNCIP AL SUM AND INTEREST REMAINING UNPAID THEREON, WITH TEN (10%) PERCENT ATTORNEY'S COMMISSION OR FEES, HEREBY WAIVING THE RIGHT AND EXEMPTION AND INQUISITION, SO FAR AS THE PREMlSES HEREIN DESCRIBED, AND ANY PROPERTY OR BUILDING THEREON MAY BE CONCERNED, 11 ~~' ~-~ ~ , J 1-- .' "-~:!!l~; (c) Seller may declare this Agreement to be null and void and exercise all remedies: available by enforcement and execution upon the security created by Article 3 of this Agreement or any other remedies available at law, This shall include exercise of the stock pledge to allow it to continue operation of the business 6,2 Cumulative Rights, No right or remedy herein conferred upon or reserved to Seller is intended to be exclusive of any other right or remedy herein or by law provided, but each shall be cumulative and in addition to every other right or remedy herein given or now or hereafter existing at law or in equity or by statute, and may be pursued singly, successively or together at the sole discretion of Seller and may be exercised as often as the occasion therefor shall occur. ARTICLE 7 REPRESENTATIONS AND WARRANTIES OF SELLER Seller makes the following representations and warranties, all of which have been relied upon by Buyer in entering into this Agreement and all of which shall be true and correct on the Closing Date as if then made: 7,1 Owner of Assets, Seller FemRock-Snyder, mc, warrants that it is the owner of assets ~ ~'.;.. to'be sold pursuant to this Agreement and that no other third party has any interest in said assets, 7,2 Corporate Standing Seller FemRock-Snyder, mc" is a corporation duly organized, validly existing, and in good standing under the laws ofthe Commonwealth of Pennsylvania, Seller 12 '" "~. = ~ "~ , I , - .Ii~.w!ii',' has full corporate authority to own its properties, to carry on the business it presently conducts, and to enter into and consummate the transactions contemplated by this Agreement, The execution and delivery of this Agreement have been duly authorized by the Board of Directors and Shareholders of Seller, by their actions at dilly called and convened meetings in accordance with Seller's bylaws, and applicable corporation bylaws, and certified copies of such resolutions shall have been delivered to Buyer at Closing. The resotutions of the Board of Directors and Shareholders of Seller specifically authorize Seller to sell all of the assets set forth in Article I above, This Agreement is valid and binding upon Seller in accordance with its terms, 7.3 PLCB License, Seller FemRock-Snyder, Inc, is the holder of valid Restaurant License No, R-15960 with a Sunday Sales Permit and Amusement Permit issued by the PLCB. There are no applications, proceedings, or material complaints pending at the PLCB, nor to Seller's knowledge, threatened, relating to the license or permit which might result in the failure to renew, revocation of, modification of, or forfeiture against the license, or which would delay or jeopardize PLCB approval of the assignment application to be filed in accordance with Article 4. 7.4 Physical Assets, Seller is selling to Buyer all of the tangible assets of Seller used and ..useful in the operation of the bar/restaurant/catering business as listed on Exhibit "!<:', Except as .~ s~ted herein, Seller has good and marketable title to all these assets, free and clear of all mortgages, liens, encumbrances, and security interests, The use of these assets conforms in all material respects to applicable governmental ordinances, statutes, and regulations, federal, state and local and all physical assets will be operable at Closing, 13 ~"q~.~ "~~l ~_ ,L ~ ""(~""--""";fi~~ 7,5 Litigation. No judgment is outstanding, and no litigation, proceedings or investigations are pending, or to the knowledge of Seller, threatened, which might result in any material adverse effect upon the assets of the barlrestaurantlcatering business or the PLCB application filed pursuant to Article 4 or which might result in any material adverse effect upon the operation of the bar/restaurant/catering business or which might question the validity of or might adversely affect any action taken or to be taken pursuant to or in connection with this Agreement, and Seller knows of no reasonable basis for any such litigation, proceeding or investigation, 7,6 Compliance with Laws, Seller FernRock-Snyder, Inc" to the best of its knowledge, is in all material respects in compliance with the Pa, LCB Code, rules, regulations and policies and all other applicable federal, state, and local laws including the Bulk Sales Act, 7,7 Absence of Conflicting Agreelnent~ or Required Consents, With the exception of the PLCB approval referred to in Article 4 herein, the execution, delivery and performance of this Agreement is not conditioned on or prohibited by, and will not conflict with, constitute grounds for termination of, or result in a breach of the terms of the certificates of incorporation or bylaws of Seller or any contract to which Seller is a party, ~';':,... , 7,8 Miscellaneous. No representation or warranty made by Seller in this Agreement and no statement made by it or on its behalf in any certificate, document, list or exhibit furnished in connection with the transaction herein contemplated contains any untrue statement of a material fact or knowingly omits any material facts necessary to full complete disclosure, 14 ...- ~ -~~,~ L, ~~ !!!i.e. LilitJti, The respective representations and warranties made by Seller shall survive the Closing, ARTICLE 8 COVENANTS 8,1 Negative. Between the date hereof and the Closing Date, except as contemplated by this Agreement, Seller will not, without the consent of Buyer, with respect to the purchase assets: 8. L 1 Liens, Create, assume or permit to exist any mortgage or pledge or subject to lien or encumbrance any of the purchases assets to be sold, whether now owned or hereafter acquired, except in the normal and usual course of business, 8,1,2 Disposition of Purchased Assets. Sell, assign, lease or otherwise transfer or dispose of any of the purchased assets, whether now or hereafter acquired, except in the normal and usual course of business, or in connection with the acquisition of similar property or assets in the normal and usual course of business, 8,1.3 Employee Matters, Increase the compensation or bonuses payable or to become "payable by Seller to any of the employees of the bar/restaurant/catering business except in accordance ~.,;,~ " with existing employment practices, or effect any unnecessary changes in the management, personnel policies or employee benefits of bar /restaurant/catering business. It is noted hereunder that Buyer has no responsibility to Seller's employees, 15 ~' """.'- ,-I j. '~' Ji "~~k 8.2 Affirmative, Seller will, between the date hereof and the Closing Date, do the following: 8,2,1 Furnish to Buyer such information concerning the purchased assets to be sold that Buyer may reasonably request. 8,2,2 Maintain the tangible purchased assets of the bar/restaurant/catering business in as good operating condition as existed on the date hereof, reasonable wear and tear excepted, 8,2.3 Maintain in force existing policies of hazard and liability insurance for the purchased assets, which policies provide insurance coverage equal to the replacement value of all property, 8,2.4 Conduct the business and operations ofbar/restaurant/catering business in the normal course, ARTICLE 9 REPRESENTATIONS AND WARRANTIES OF Buyer Buyer make the following representations and warranties, all of which have been relied upon by Seller in entering into this Agreement, except as specifically provided, all of which shall be true and correct on the Closing Date as if then made, 9,1 Organization, Buyer McDunk, Inc. is a corporation duly organized, validly existing 16 ;;;:. ,~.~' 10' "_ ~""""I""1"h and in good standing under the laws of the Commonwealth of Pennsylvania and the corporation has full power and authority to enter into and perform this Agreement. 9,2 Authorization, The execution and delivery of this Agreement has been duly authorized by the Board of Directors and Stockholders of Buyer McDunk, Inc, and that this Agreement has been duly executed and delivered and constitutes a valid and binding obligation of Buyer, enforceable in accordance with its terms, 9.3 Litigation, No judgment is outstanding and no litigation, proceedings, investigations or other actions are pending against any Buyer which might materially and adversely affect the enforcement of this Agreement or the right of Seller to the Escrow Deposit or of the ability of Buyer to consummate this transaction and Buyer know of no threat of any such litigation, proceeding, investigation or other action, 9.4 Oualifications, To the best of its knowledge, Buyer are qualified to receive the approval of the PLCB required under Article 4, 9,5 Financial Ability, Buyer has financial ability to consummate this transaction as ....;;:... p;~vided in this Agreement. Buyer, McDunk, Inc, Corporation shall provide to Seller statements of its financial statements and corporate federal income tax returns no later than May 1" of each year, Further, in the event that a default has occurred in any calendar year which has been cured by Buyer. Ira J. McManus and Leslie J. McManus, his wife and James R. Dunkle and Karen L. Dunkle, his wife, 17 -- 1- I, ^ L """',, J'.", """'~MIl>.(;- individually, shall also be required to provide their individual federal tax returns to Seller on or before May 1 st for the calendar year of the default. 9,6 Miscellaneous, No representation or warranty made by Buyer in this Agreement and no statement made by it or on its behalf in any certificate, documents, list or exhibit furnished in connection with the transaction herein contemplated contains any untrue statement of any material fact or knowingly omits any material fact necessary to full and complete disclosure, The respective representations and warranties made by Buyer shall survive the Closing, ARTICLE 10 CLOSING DATE AND PLACE The consummation of the transaction provided for by this Agreement (the "Closing") shall take place on a date (the "Closing Date") and at a time mutually agreeable to Buyer and Seller within ten (10) days after the Order of the PLCB granting approval of the assignment of the Restaurant License and Permits to Buyer has become final but in no event, later than May 1, 1999, Time is of the essence in Closing, Closing shall occur at the office of Barbara Sumple-Sullivan, Esquire, 549 Jlridge Street, New Cumberland, Pennsylvania, ....~ " ARTICLE 11 CLOSING DOCUMENTS II,} INSTRUMENTS AND DOCUMENTS - SELLER. On or before the Closing Date, Seller shall have delivered to Buyer the following 18 - 1,,- ~~ ~~ ';W '/Wg. instruments and other documents, all of which shall be in fonn reasonably satisfactory to counsel for Buyer: 11,1,1 Resolution, Certified resolutions of the shareholders approving the sale and certified resolutions of the Board of Directors of Seller FernRock-Snyder, Inc, authorizing the execution and pelfonnance of this Agreement. The resolution of Seller shall specifically authorize Seller to sell all ofthe assets listed in Article 1 above. 11.1.2 Bill of Sale, A bill of sale for all the personalty sold pursuant to Article I hereof 11.1.3 Certificate of Title and Warranties, All certificates oftitle and manufacturers' or dealers' warranties, if any, covering the property sold, ILIA Assignment of Intangible Assets, An assignment of the intangible assets sold pursuant to Article lA, including a transfer of the fictitious name, 11.1,5 Certificate, A certificate signed by the President or Vice President of Seller and the representations and warranties of Article 7 are true and correct in all material respects and that Seller '~ ; ha; complied with the covenants of Article 8, 11.1.6 Bulk Sales Act, Evidence satisfactory to Buyer's counsel of Seller's satisfaction of the Bulk Sales Act, 19 ~l~~ . - ,. I -~" '~;i;';. . , 11,2 INSTRUMENTS AND DOCUMENTS - Buyer, On or before Closing Date, Buyer shall have delivered to Seller the following instruments and documents, all of which shall be in form reasonably satisfactory to counsel of Seller. 11.2,1 Payment. Payment of the initial cash consideration of FORTY-FIVE THOUSAND ($45,000,00) DOLLARS envisioned by Article 1. 11,2,2 Security Agreements, All documents necessary to perfect the security interests, pledge of stock, and assignment ofleases contemplated by Article 3 hereof 11,2.3 Capital Stock Capital Stock in the registered form as per Articles 3,2 and 3.3 of this Agreement. 11.2.4 COI:poration Bylaws. Copies of corporate bylaws certified by its Secretary certifYing the corporation's action are authorized and the Corporation is in good standing, ARTICLE 12 COSTS AND EXPENSES ....;.;# , Except as otherwise specifically provided herein, Seller and Buyer shall each bear their own legal fees and other costs and expenses with respect to this transaction, All broker fees shall be paid by Seller, 20 _.~ ~~ ~ JI w"l - " l1ll!\ll,,(,~.',,, " ARTICLE 13 RISK OF LOSS - DAMAGE TO FACILITIES 13 ,1 Loss, The risk ofloss or damage to any ofthe purchased assets shall be upon Seller prior to the Closing and thereafter upon Buyer. 13.2 Damage, In the event of any damage, destruction or loss to any of the purchased assets prior to the Closing Date, Seller shall take immediate steps to repair, replace and restore the damaged, destroyed or lost property to its former condition, In the event that the property is not completed repaired, replaced or restored on or before the Closing, Buyer may elect to postpone the Closing Date until such time as the property has been completely repaired, replaced or restored, Buyer agree to postpone Closing only in the event that equipment and damaged or destroyed substantially and materially effect the operation of the bar/restaurant/catering business, as detennined by Buyer, If such property has not been completely repaired, replaced or restored within a period of four (4) months after the Closing Date established herein prior to any postponement under this Article, and if at that time Buyer are not willing to close on the terms provided below in this Article, either Buyer or Seller may, by written notice to the other, cancel and terminate this Agreement, in which event the Escrow Deposit will be returned to Buyer. In the alternative, Buyer may elect to .consummate the Closing on the Closing Date or at any time during the postponement pursuant to this ....~:.;. Article and accept the property in its then condition in which latter event, Seller shall assign to Buyer all Seller's right under any insurance or pay over to Buyer all proceeds of insurance covering the property damage, destruction or loss, In the event Buyer elect to postpone the Closing Date as provided above, Seller and Buyer will cooperate to extend the time during which this Agreement must 21 ~~I .~~ " I l____~!i'; " be closed as may be provided by Article 10 hereof to pennit a Closing on the extended Closing Date and Seller shall use its best efforts to repair, replace and restore the damages, destroyed or lost property to its former condition as promptly as possible, ARTICLE 14 INDEMNIFICATION 14,1 Rights of Parties, Seller shall indemnify and hold Buyer harmless and Buyer shall indemnify and hold Seller harmless from any and all claims, liabilities, damages, losses, costs, expenses and other obligations of every kind and every description, contingent or otherwise which arise out of any breach of their representations, warranties, or covenants contained herein or any certificate or other documents delivered hereunder, or which accrue from the conduct and operation ofthe business of the barlrestaurant/catering business while it was controlled by the indemnifYing party other than those claims, liabilities, damages, losses and costs which result solely from the party's own specific act of omission, This indemnification shall include holding the other harmless for any and all costs, including attorney fees and costs, associated with defense of any claim or cause of action including all costs and expenses, including attorney's fees, for enforcement of this indemnification, ""'.;.r , 14,1 Condition Precedent. As a condition precedent to indemnification against the claims of third parties, the indemnifying party shall be given written notice of any claims in sufficient time to allow the party an opportunity to defend or compromise the claim at its sole expense, 22 "'--'-~ - -,-,I '"' ":l>i'O-,: " ARTICLE 15 COVENANT NOT TO COMPETE Seller's principal, Fern L. Wilson, shall sign a Covenant Not to Compete in the fonn set forth as Exhibit "c" attached herein at Closing, ARTICLE 16 CONSULTING AGREEMENT Buyer agree to enter into a consulting agreement with Seller's principal, Fern L. Wilson, Pursuant to such agreement, Fern L. WIlson agrees to provide such personal guidance and assistance to the Buyer for a period not to exceed one month following Closing, Seller's principal, in accordance with the terms of the Agreement set forth as Exhibit "c" shall also provide telephone consultation to Buyer for an additional (120) days period, ARTICLE 17 NOTICES All necessary notices, demands, and requests shall be deemed duly given when personally delivered or three (3) days after being mailed by registered or certified mail, postage prepaid, and addressed as follows: ~'~......... "..'. TO Buyer: McDunk, Inc, 23 , ~, I,~ ~"' - ~ I ....."~i;l~~ Copy to: Anna Marie Sossong, Esquire Skarlatos & Zonarich 204 State Street Ramsburg, P A 1710 1 TO SELLER: Fern L. Wilson, President FernRock-Snyder, Inc, 68 Cumberland Road Lemoyne, PA 17043 Copy to: Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, P A 17070 ARTICLE 18 BENEFIT AND ASSIGNMENT This Agreement shall be binding upon and insure to the benefit of the parties hereto, their successors and assigns, This Agreement may not be assigned by Buyer without the consent of Seller, ARTICLE 19 ENTmE AGREEMENT This Agreement and its exhibits, all of which are incorporated into and made a part hereof, '; ,,!(mbody the entire agreement and understanding between the parties with respect to the subject matter " hereof, and supercede any prior understanding whether written or oral between the parties hereto, Only this Agreement, its exhibits and the documents delivered pursuant thereto may be relied upon to establish the respective rights and obligations of the parties, 24 -' "'~ ~" . ._k.,", I." ~iE",,: ARTICLE 20 CHOICE OF LAW This Agreement shall be construed and governed in accordance with the laws of the Commonwealth of Pennsylvania, ARTICLE 21 COVENANT OF FURTHER ASSURANCES After Closing, Seller and Buyer, upon request of the other, shall take such other action and execute and deliver such other instruments as may be reasonably necessary to assure, complete, and evidence the full and effective sale and assignment of the purchased assets pursuant to this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written, 7~'d~ \ ,Secr~ary WJm.-- (SEAL) ',':, ATTEST: BUYER: , Secretary ~IOC President ~~ '.:]:'(tl!r (j,(1It 11?;\N'V~ 25 ~...~ - .I, , r ^ ,I " "'~ ' 'llifffh' . . GUARANTEE AND SURETY AGREEMENT IRA 1. McMANUS and LESLIE 1. McMANUS, his wife and JAMES R DUNKLE and KAREN L. DUNKLE, his wife, joint in this Agreement to guarantee and become surety for the full and timely payment of principal, interest, and any and all other sums and obligations of any nature whatsoever which are due or which become due at any time or in any manner to Seller, its assigns or FERN L. WILSON, individually, under or in connection with this Asset Purchase Agreement, and for the full and timely payment of any and all obligations, sums or liabilities of any nature whatsoever, whether direct or indirect, absolute or contingent, voluntary or involuntary, and whether past, present or future, now due or to become due, from Corporation to FernRock-Snyder, Inc, or its assigns (the "Obligations") under the Asset Purchase Agreement, including by maturity or acceleration, without notice or demand or set off, counterclaim or deduction of any kind, This Agreement is a continuing, absolute and unconditional guaranty and suretyship of payment and not merely of collection, The obligations of Guarantors hereunder are joint and several and are independent of the obligations of Corporation and any other guarantor or surety for the Obligations, and of the availability of any collateral or security for the Obligations, Guarantors are ':..yable to FemRock-Snyder, Inc, or its assigns hereunder, pursuant to the Asset Purchase Agreement " and FernRock-Snyder, Inc, or its assigns may enforce its rights and remedies hereunder against Guarantors, or any of them in any combination, at any time and from time to time, whether FemRock-Snyder, Inc, attempts to enforce or enforces FernRock-Snyder, Inc,'s rights and remedies against Corporation or any other guarantor or surety for the Obligations, or whether FemRock- Snyder, Inc, joins Corporation in any enforcement action or proceeding, or whether FemRock- 26 ~ - I , I. I. ~ ,'-1 , '9W~, , , " '.' Snyder, Inc, first proceeds to liquidate or realize on any collateral or security for the Obligations, Guarantors hereby voluntarily, intelligently, knowingly and unconditionally waive (a) all notices to which Guarantors may be entitled but which may legally be waived, including without limitation notice of (1) acceptance of this Agreement, (ii) any obligation incurred at any time by Corporation under or in connection with the Obligations, (iii) nonpayment, protest, dishonor or default; and (b) presentment for payment, demand for payment, and protest; and (c) any defense available to Corporation; and (d) any defense or circumstance which might constitute a legal or equitable discharge of a guarantor or surety, GUARANTORS HEREBY VOLUNTARlL Y, KNOWINGLY, INTELLIGENTLY AND IRREVOCABLY WAIVE ANY AND ALL RIGHTS GUARANTORS MAY HAVE AT ANY TIME (WHETHER DJRECT OR INDIRECT, OR BY OPERATION OF LAW OR CONTRACT, OR OTHERWISE) TO ASSERT ANY CLAIM AGAINST CORPORATION ON ACCOUNT OF ANY PAYMENT MADE UNDER THIS AGREEMENT, WHETHER BY OR FOR SUBROGATION, REIMBURSEMENT, EXONERATION, CONTRIBUTION, INDEMNITY OR OTHERWISE, ~ ",,, 'e , This Agreement and Guarantors' payment obligations hereunder will remain in effect if at any time any amount paid under or in connection with the Obligations is rescinded or recovered by any persons or entity, or ifFernRock-Snyder, Inc, or otherwise becomes liable to or does repay, restore or return any such amount, to the same extent as if such payment had not been made, and notwithstanding any termination or cancellation of the Obligations or this Agreement, both of which shall be deemed to be reinstated even following any such termination or cancellation for purposes of 27 -~ , , J ,I. ~ '~~'""~'j~"-,!@t~^i , , " continuation of Guarantors' liability hereunder. FernRock-Snyder, rnc,'s detennination as to whether to repay, restore or return any payment shall be binding on Guarantors. Guarantors hereby agree to payor reimburse FernRock-Snyder, Inc, for any and all out-of- pocket costs, expenses and fees at any time incurred or paid by it in the administration, enforcement or collection of Guarantors' obligations under this Agreement, including without limitation reasonable attorneys' fees, If the Corporation is in default, Guarantors will provide such financial information as FernRock-Snyder, rnc, may from time to time request, including federal income tax returns and schedules, and balance sheets and income statements in form and content satisfactory to FernRock- Snyder, Inc, GUARANTORS HEREBY VOLUNTARILY, INTELLIGENTLY AND KNOWINGLY E.MPOWER THE PROlHONOTARY OR ANY ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR GUARANTORS AND TO CONFESS JUDGMENT FOR ONE HUNDRED FlFTEEN lHOUSAND ($115,000,00) DOLLARS AND ATTORNEYS' FEES EQUAL TO TEN (10%) PERCENT OF SUCH AMOUNT, AND COSTS OF SillT, WITHOUT FILING A "~'.. COMPLAINT, OR, BY FILING A COMPLAINT OR COMPLAINTS FROM TIME TO TIME, FOR ANY OR ALL OTHER AMOUNTS AS OR AFTER THEY BECOME DUE UNDER THE OBLIGATIONS OR HEREUNDER, INCLUDING WITHOUT LIMITATION ANY PERIODIC PAYMENTS, THE ENTIRE BALANCE OF PRINCIPAL DUE OR PAYABLE, LATE CHARGES, INTEREST, EXPENSES AND FEES, COSTS OF SillT AND ATTORNEYS' FEES EQUAL TO TEN (10%) PERCENT OF THE TOTAL OF ALL SUCH AMOUNTS, 28 - _.1 ~ .~ ~.~...~- .I j'. ~" ~=" " l~il8, , , , , GUARANTORS HEREBY RELEASE ALL ERRORS OR DEFECTS IN ANY SUCH ACTION AND THE ENTRY OF ANY SUCH JUDGMENT, AND WAIVE ALL LAWS EXEMPTING REAL OR PER ONAL PROPERTY FROM EXECUTION, R ~ = Witness ~~Q R,Dunkle Witness ~~~f1/A{U/!j Karen L. Dunkle ~>;';;. 29 ,:;;.--'~ , ~.'. I. L~ . I, "~u.1.."-'i: "'~';t '. " EXHIBIT "A" ~ ~ I" ....:.1 ,'I", . ,,, . ",,',. .."" ''''''''"~~ ;!R~~~-::-=-"".;'" ;1', . ~'~~... ':-;9-~'."~.....-;m;"._...,..".. . '.,ll9/ailt~g8 ..14:5:2 1l1-7lil-~M3,' "'I' _..~. ~...., . ...,...,.."....-.&-11._ '~.. ,.. ._ i,cfR -f.tI,t Af.ER!CA . '=,. . PAGE Il4 . ' BQUIPMBNT LIS'I' lJi.sbwasher - Jackson - high le~pefature 1 rack slide through wI SS table W~.ill Freezer.: 6'X 6' wiJh sbelviQg Walk-.in Cooler - 9'X II' with shelving 20 Quart B~eslee mixer with as floor stan, d on wheels 2 Stackiijg Bikers Pride Convection Ovens McJ'Co ~hclving ;; various sizes, 5 units ~ B~ SS'Pot Sh\k. , .ss Work Tables - I @ 4'X 2.5', I @ 6'X 2.5", I @ 3.5'X 2,5' with wheels L' ? Under Counter I1reeZers ; I Under Co.r Refdicrator , 7. 6' COWllerlie!ght' Refijgc,ator Units - I witli divided bins in top 2 Bus Cans . I S8, I Rlibbennaid ; I Cooler for bottled water . Cleveland Steamer - Steamcraft 3.1 with S8 table Sanuwich Unit - BevAlr . 5' SS on whcolll StQlIUltable 6' 5 Bay SS (1 Bay not wotkins) Garland Broiler - upriJ,llt with top oven woHdng off braUer, " ' seperale tiOttom oven Vulcan Stove - 6 Burner +. Griddle Top 2 Convection Ovens on bottom - unit on wheels Ueep Fryer - 40 Qt. Welts . floor model Reach-in Refrigerator - Victory - 1 door S5 Reach-in Refrig,erator . Randell - 2 door S5 ~n wheels . (stlll under warranty) : Globe Slicer. gravity feed , 12 case 1t1O ran cart 58 lop, on wlJ~els 6001f Iloshizaki Ice MAker with 400# storage bin ,~akers Cart for 12lrays , 'l{ax Machine Sharp FO-330 with seperate line Catering Supplies . Numerous Chafers, Insulated Hot Boltes, Trays, Bowls 6' Mobil Gas Grill wI 2 50# propane tanks . .. '. -~ """"-._~"", ~,~,_L~ ~ , ~ . ,"~ :.:-;.,lWooH ...... .""",,- .:-'~':~f~.~':-::..' ~ ,...':- -.~.. ",...,,,,, .,.;,.." .....-..----. '.;''',' . . ' ,'" r\ . - , 'Draught Beer System - 6 SWgot - Remote Keg Cooler ill basement - 6'X 12' 2 Perllck Bottle Coolers - 1 @ 4,5', 1 @ 6.5' .1 QllY Siijk with IC,e ,Bins on either end Smersible BarMaid Glass Washet OtdlWN RS18 Cash Register - ongoing maintenance contract Display Beer c90ler .. BevAir 3 door - 6' on wheels ColorTmc TV t~) Waitres..; Station.. 4' CtMlt\VlcwL UlM/W) . 7,G01:; Dryers. May tag - commercial THHI. Sump Pump (never used . gas powered) Various exlra tables and chairs" Copier MITA DC-1255 Floor Safe . Sentry Valueguard 2 File ClIblnets CiJmV;tI#J P./Luf#L Plymuuth Gran Voyager 1990, Cell Phone, AC ,,- ",,-' ' , ,'",,-+ ' Ite~~~~' S,:~da,l, be,i,;::~g &, ,to rii~~, m::~g ou~G-"",?fJh~,-,.'~, ',.uJ, yll,iqp:V' 1f:tdP1~-:db0 ;.~~~:hi'; f.> n L~~{/1Yl :,' Water Softener - ~trf2.' I' / - - .~. . -,~~"- '~-~;::: .~ . - - ;d!at~ - - '~ .?;.,~ \" EXHIBIT "B" " I '-clI-~JIiiilJ:!, . , ____l",~ ~ .1,0. .~,~ ;t',~i' 07061999 Page 1 Femrock-Snyder to McDunks, Inc. Compound Period .......: Monthly Nominal Annual Rate ... : 5,250 % Effective Annual Rate.. : 5.378 % Periodic Rate .............. : 0.4375 % Daily Rate ..........'..'.... : 0,01438 % CASH FL-OW DATA Event Start Date Amount Number Period End Date 1 Loan 06221999 115,000.00 1 2 Payment 07011999 774.92 84 Monthly 06 01 2006 3 Payment 07 01 2006 87,352.69 1 AMORTIZATION SCHEDULE - Normal Amortization Date Payment Interest Principal Balance Loan 0622 1999 115,000,00 1 0701 1999 774,92 148.87 626.05 114,373.95 2 0801 1999 774.92 500,39 274.53 114,099.42 3 0901 1999 774.92 499,18 275,74 113,823.68 4 1001 1999 774.92 497,98 276.94 113,546,74 5 11011999 774.92 49q.77 278,15 113,268.59 6 1201 1999 774.92 495.55 279.37 112,989.22 1999 Totals 4,649,52 2,638,74 2,010.78 7 01 01 2000 " 774.92 494.33 280.59 112,708,63 8 02 01 2000 774,92 493.10 281.82 112,426.81 9 03 01 2000 774,92 491.87 283,05 112,143.76 10 0401 2000 774.92 490,63 284,29 111,859.47 11 05 01 2000 774,92 489.39 285.53 111,573.94, 12 0601 2000 774,92 488.14 286.78 111,287.16 13 07012000 774.92 486,88 288,04 110,999.12 14 0801 2000 774.92 485,62 289.30 110,709.82 15 ,911 01 2000 774.92 484.36 290.56 110,419,26 16 fOU1 2000 774.92 483.08 291,84 110,127.42 17 11012000 774.92 481,81 293.11 109,834,31 18 1201 2000 774.92 480.53 294.39 109,539.92 2000 Totals 9,299.04 5,849,74 3,449.30 19 01 01 2001" 774.92 479.24 295,68 109,244.24 20 02 01 2001 774.92 477,94 296.98 108,947.26 21 0301 2001 774.92 476.64 298.28 108,648,98 22 04 01 2001 774.92 475,34 299,58 108,349.40 23 05 01 2001 774.92 474.03 300.89 108,048.51 24 06 01 2001 774.92 472.71 302.21 107,746.30 25 07 01 2001 774.92 471,39 303.53 107,442.77 26 08 01 2001 774.92 470,06 304.86 107,137.91 - .....1 ,I "^ "~~~t~,;i 0, 061999 Page 2 Fernrock-Snyder to McDunks, Inc. Date Payment Interest Principal Balance 27 09 01 2001 774,92 468.73 306.19 106,831.72 28 1001 2001 774.92 467.39 307.53 106,524,19 29 11 01 2001 774,92 466.04 308.88 106,215.31 30 1201 2001 774,92 464.69 310.23 105,905,08 2001 Totals 9,299,04 5,664.20 3,634,84 31 01 01 2002 774.92 463.33 311.59 105,593.49 32 02 01 2002 774,92 461.97 312.95 105,280,54 33 0301 2002 774,92 460,60 314.32 104,966.22 34 0401 2002 774,92 459.23 315.69 104,650.53 35 0501 2002 774,92 457,85 317.07 104,333,46 36 06 01 2002 774,92 456.46 318.46 104,015.00 37 07 01 2002 774.92 455.07 319,85 103,695,15 38 08 01 2002 774,92 453.67 321.25 103,373.90 39 09 01 2002 774.92 452.26 322.66 103,051.24 40 1001 2002 774,92 450.85 324,07 102,727,17 41 11012002 774,92 449.43 325.49 102,401.68 42 1201 2002 774.92 448.01 326.91 102,074,77 2002 Totals 9,299,04 5,468.73 3,830.31 43 01 01 2003 774.92 446.58 328.34 101,746.43 44 02 01 2003 774,92 445,14 329.78 101,416.65 45 03 01 2003 774,92 443,70 331.22 101,085.43 46 04 01 2003 774.92 442.25 332.67 100,752.76 47 05 01 2003 774.92 440.79 334.13 100,418.63 48 06 01 2003 774,92 439.33 335.59 100,083.04 49 07 01 2003 774.92 437,86 337.06 99,745.98 50 08 01 2003 774.92 436,39 338,53 99,407.45 51 0901 2003 774.92 434.91 340.01 99,067.44 52 1001 2003 774.92 433.42 341.50 98,725.94 53 11 01 2003 774,92 431.93 342.99 98,382.95 54 12 01 2003 774,92 430.43 344.49 98,038.46 2003 Totals 9,299.04 5,262.73 4,036,31 55 Q1 01 2004 774.92 428.92 346.00 97,692.46 56 0201 2004 774.92 427.40 347,52 97,344.94 57 03 01 2004 774.92 425,88 349.04 96,995.90 58 04 01 2004 774.92 424.36 350.56 96,645.34 59 05 01 2004 774.92 422.82 352.10 96,293.24 60 06 01 2004 774.92 421.28 353.64 95,939.60 61 07 01 2004 774.92 419.74 355.18 95,584.42 62 08 01 2004 774,92 418.18 356.74 95,227.68 63 09 01 2004 774.92 416.62 358.30 94,869.38 64 1001 2004 774.92 415.05 359.87 94,509,51 65 11012004 774.92 413.48 361.44 94,148.07 66 1201 2004 774.92 411.90 363.02 93,785,05 2004 Totals 9,299.04 5,045.63 4,253.41 _ N_I~ I . ,I' ~~IlI') 07061999 Page 3 Fernrock-Snyder to McDunks, Inc, Date Payment Interest Principal Balance 67 01 01 2005 774,92 410.31 364.61 93,420.44 68 02 01 2005 774.92 408,71 366,21 93,054.23 69 03 01 2005 774,92 407.11 367.81 92,686.42 70 04 01 2005 774.92 405.50 369.42 92,317,00 71 0501 2005 774.92 403,89 371.03 91,945.97 72 06 01 2005 774.92 402.26 372.66 91,573.31 73 07 01 2005 774.92 400,63 374,29 91,199.02 74 08012005 774.92 399.00 375.92 90,823.10 75 09 01 2005 774,92 397,35 377.57 90,445,53 76 1001 2005 774,92 395.70 379.22 90,066.31 77 11 01 2005 774,92 394,04 380.88 89,685.43 78 1201 2005 774.92 392.37 382.55 89,302.88 2005 Totals 9,299.04 4,816,87 4,482.17 79 01 01 2006 774.92 390.70 384.22 88,918.66 80 02 01 2006 774,92 389.02 385.90 88,532.76 81 0301 2006 774,92 387.33 387.59 88,145,17 ' 82 04 01 2006 774,92 385.64 389.28 87,755.89 83 05 01 2006 774.92 383.93 390.99 87,364,90 84 06 01 2006 774.92 382.22 392,70 86,972.20 85 07 01 2006 87,352.69 380.49 86,972.20 0.00 2006 Totals 92,002,21 2,699.33 89,302.88 Grand Totals 152,445.97 37,445.97 115,000.00 :; ~:f " ,.~" __l __..I, ." 1,-" '. ' ~~'~6f.i! . Femrock-Snyder to McDunks, Inc. 07 06 1999 Page 4 Last interest amount decreased by 0,01 due to rounding. '-t>;i '10, ~y"" ""'" ~I,... "" :'-:;'-:' .,~ EXHIBIT "C" I." ~I ~< I :.l!l.l.>Oil!~R" , , c ~Wli\$: ;" EXHIBIT "C" NON-COMPETITION AND CONSULTING AGREEMENT THIS AGREEMENT made this day of , 1999, by and between FERN L. WILSON, of New Cumberland, Cumberland County, Pennsylvania and McDUNK, INC" a Pennsylvania corporation (hereinafter referred to as "Buyer"), WITNESSETH: WHEREAS, Fern L. Wilson is the principal ofFernRock-Snyder, Inc,; WHEREAS, Fern L. Wilson and FernRock-Snyder, Inc., have entered into agreements for sale of real estate and certain business assets used and useful in operation of a restaurant, bar and catering business known as Pete's Cafe; WHEREAS, McDunk, Inc, recognizing Fern L. Wilson to be a competitive force in the food "~ice industry, desire to secure a noncompete from Fern L. Wilson, as well as enter into a consulting agreement with Fern L. Wilson for her services; NOW, THEREFORE, the parties, intending to be bound do agree as follows: -~ ) , .1, I,~ ' , ~..:,. "-~ iilliJ ''''"''~~~:~%U2i . ',' , Non-competition Clause. Fern L. Wilson shall not, directly or indirectly, except as set forth herein or by mutual agreement of the parties, acting alone or in conjunction with others: 1. (a) Work as director, officer, employee, partner, shareholder (or in any other capacity) (except for Buyer) in any bar (whether same serves food or not) and any catering and restaurant business providing food services within a twenty (20) mile radius of 401- 403 Market Street, New Cumberland, for a period of three (3) years from closing; and (b) Perform catering to any existing accounts of Pete's Cafe, FemRock-Snyder, Inc, or Fern L. Wilson, individually, for a period of three (3) years from the date of this closing, 2, Acknowledgment of Harm from Violation of the Non-Competition Clause, The parties acknowledge and agree that irreparable injury will result if Fern L. Wilson or FemRock- Snyder, Inc, breaches this noncompetition covenant. The parties therefore agree that, in the event of any such breach, McDunk, Inc, shall be entitled to all available remedies and damages at law or in equity, including, without limitation, an injunction to restrain any violation of the noncompetition s;ovenant by Fern L. Wilson or any individuals acting for or with her. Fern L. Wilson agrees that the ~ ';';" ti~e, area, and business restrictions in this noncompetition covenant are reasonable, 3. Compensation, Upon signing of this Agreement, Buyer shall pay to Fern L. Wilson the sum of FIVE THOUSAND ($5,000.00) DOLLARS, Dr1d\- 3112199 2 ..:" .l~~ ~~. '",I '__" li~iii2,; . . .. . > 4, Consulting Requirement. Fern L. Wilson agrees to personally provide guidance and assistance to the principals ofMcDunk, Inc., in the operation of Pete's Cafe as it shall request for a period not to exceed four (4) weeks, Fern L. Wilson shall further agree to provide telephone assistance to Buyer, as it requests, for an additional three (3) month period beyond the tennination of her on-site personal consulting, IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, hereunto set their hands and seals the day and year first above written, WITNESS: (SEAL) FemL. Wilson ATTEST: , Secretary ~'ii \ '" ,- Me Inc, I \~'f!.AL) ~ .;...." Draft 3/12/99 3 ,'~>-<"""''"'~- -1 I. . ~~ ~~~~Ki . " . FERN L. WILSON, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 00-6778 IRA 1. McMANUS, JR., LESUE 1. McMANUS, JAMES R. DUNKLE and KAREN L. DUNKLE, Defendants. : CIVIL ACTION CERTIFICATE OF SERVICE I, Anna Marie Sossong, Esquire, attorney for Defendants, Ira J. McManus, Jr., Leslie J. McManus, James R. Dunkle, and Karen L. Dunkle, hereby certify that I this day served a copy of the foregoing Brief in Support of Petition to Open Default Judgment upon the person(s) indicated below by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg. Pennsylvania, and addressed as follows: Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070-1931 SKARLATOS AND ZONARICH Anna Marie Sossong, ID#32808 204 State Street Harrisburg, PA 17101 717-233-1000 Attorney for Defendants Dated: 11\ 2- t j Q::) By: . ~ " ,,~ ,.., """'"yl-" ',-"I ~"'~ ,-, "'~; , r' ' , . FERN L. WILSON, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : No, 00-6778 IRA 1. McMANUS, JR., LESLIE 1. McMANUS, JAMES R DUNKLE, and KAREN L. DUNKLE, Defendants : Civil Action AFFIDAVIT OF SERVICE I, Lisa Wasserloos, being duly sworn according to law, deposes and states that at approximately 3:45 p.m. on October 25, 2000 at 549 Bridge Street, New Cumberland, Pennsylvania, I personally served Ira J. McManus, Jr., Leslie J. McManus, James R Dunkle, and Karen L. Dunkle, the following documents: 1. Notice Under Rule 2973.2 of Judgment and Execution; 2. Complaint to Confess Judgment for Possession of Real Estate; 3. Confession of Judgment; 4. Affidavit that Action Does not Rise Out of Residential Lease; 5. Affidavit Pursuant to PA. RC.P. 2971(a)(2); 6. Affidavit of Business Transaction; 7. Mfidavit of Non-Military Service; and 8. Certification of Addresses, I hereby certify that the facts set forth above are true and correct to the best of my knowledge, information and belief. I understand that any false statements made herein are subject to penalties of 18 Pa. C.S.A. ~4904 relating to unsworn falsification to authorities. Date: October 25, 2000 ~~UJ~ Lisa Wasserloos N Y PUBLIC Y Commission Expires: (SEAL) , ~ ~ "'~~Ii!llli~" FERN L. WILSON, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA v. IRA J. McMANUS, JR., LESLIE J. McMANUS, JAMES R. DUNKLE, and KAREN L. DUNKLE, Defendants : CIVIL ACTION - LAW : No. 00-6778 CIVIL TERM IN RE: DEFENDANTS' PETITION TO OPEN CONFESSED JUDGMENT BEFORE HOFFER, P,J., OLER and GUIDO, JJ, ORDER OF COURT AND NOW, this I) R day of February, 2001, upon consideration of Defendants' Petition To Open Confessed Judgment, and for the reasons stated in the accompanying opinion, this matter is stricken from the December 6, 2000, argument court list, and it is ordered that: 1. A Rule is issued upon Plaintiff to show cause why the Defendants are not entitled to the relief requested; 2. Plaintiff shall file an answer to the petition within 21 days of the date of this order; 3. The petition shall be decided under Pa. R.C.P. 206.7; 4. Depositions shall be completed within 49 days of the date of this order; 5, Argument shall be held on Thursday, April 5, 2001, at 1:30 p.m., in Courtroom No.1, Cumberland County Courthouse, Carlisle, Pennsylvania; 6. Briefs shall be submitted at least seven days prior to argument. BY THE COURT, \~ ,~ ~ Q\ . ()~; - "I" .- -,' ."-~ " ~ ill1:rn.I!l~~i, Barbara Sumple-Sullivan, Esq. 549 Bridge Street New Cumberland, PA 17070-1931 Attorney for Plaintiff Anna Marie Sossong, Esq. Skarlatos & Zonarich LLP 204 State Street Harrisburg, P A 171 0 1 Attorney for Defendants ,-"~ '" "-'~" ,- b ~ ..-,' "."','" "-d~--,' ,.', ," , 'e!!iii, FERN L. WILSON, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA v. IRA J. McMANUS, JR., LESLIE J. McMANUS, JAMES R. DUNKLE, and KAREN L, DUNKLE, Defendants : CIVIL ACTION - LAW : No. 00-6778 CIVIL lERM IN RE: DEFENDANTS' PETITION TO OPEN CONFESSED JUDGMENT BEFORE HOFFER, P.J., OLER and GUIDO, JJ. OPINION and ORDER OF COURT Oler, J., February ,2001 In this breach of contract case, Plaintiff filed a complaint and confession of judgment for possession of real estate on October 3, 2000, after Defendants allegedly defaulted on payments required under an installment sales agreement. The agreement was entered into in connection with the transfer of commercial real estate located at 401-403 Market Street, New Cumberland, Cumberland County, Pennsylv~mia, and of "certain assets used and useful in operation of a bar, restaurant and catering business known as Pete's Cafe ....,,1 The association between the installment sales agreement, pursuant to which the confession of judgment for possession was entered, and the sale of assets relating to operation of the business, was evidenced by incorporation of the asset agreement into the installment sales agreement. The latter agreement included these recitals, according to Plaintiff s complaint: WHEREAS, Buyers are additionally purchasing from FernRock-Snyder, Inc., a Pennsylvania corporation of which Seller is the principal, certain assets used and useful in operation of a bar, restaurant and catering business known as Pete's Cafe, which [Asset Purchase] Agreement is attached 1 See Plaintiff's Complaint To Confess Judgment for Possession of Real Estate, Exhibit B, ~ -,'- ' ~ "^ ',1' .1.. .1 ~,_ ,'L, -,. "~,. '..' '- ',", ~ ~\. hereto as Exhibit "B" and incorporated herein by reference; [and] WHEREAS, purchase of real estate by Buyers pursuant to this Agreement is contingent upon successful consummation of Buyers' purchase of said assets of Pete's Cafe and complete satisfaction of all payments due pursuant to said [Asset Purchase] Agreement attached as Exhibit "B"....2 On November 2, 2000, Defendants filed a timely petition to open the confessed judgment pursuant to Pennsylvania Rule of Civil Procedure 2959(a)(3), which provides that such a petition is to be filed within thirty days after service of written notice of the confession of judgment. In the petition to open, Defendants raised the defense of fraud in the inducement by asserting that their entry into the agreement was predicated upon fraud on the part of Plaintiff.3 Defendants allege that Plaintiff made fraudulent misrepresentations and omissions of material facts, including omission of the fact that she had paid a number of employees "under the table," resulting in unexpectedly higher out-of-pocket costs to Defendants,4 and an overreport as to sales volume as shown on the financial records of the business, prior to Defendants' purchase,5 Defendants argue that whether their entry into the agreement was the product of fraud is a question of fact, and that they therefore are entitled to have the judgment opened under Pennsylvania Rule of Civil Procedure 2959(3)(e). 2 Id. plaintiff asserts that the asset purchase agreement and the installment sales agreement are unrelated, However, the court is of the view that, as evidenced by the language of the installment sales agreement, it would be premature to deny Defendants' petition to open on the ground that the two are unrelated, 3 Defendants' Petition To Open Confessed Judgment, paras, 3-6, filed November 2, 2000, 4 Id., para, 5, 5 Id" para, 6, 2 - ~- ,"", ~ "~ , .~.~ """ " l;;R!It~ Rule 2959(b) provides that, "[i]f the petition [to open a confessed judgment] states prima facie grounds for relief the court shall issue a rule to show cause ...." Rule 206.1, pertaining to petitions in general, is also instructive. Rule 206.5 provides: (a) The rule to show cause procedure prescribed by this rule shall apply if (I) the relief sought by the petition is the opening of a default judgment .... * * * * (b) A petitioner seeking the issuance of a rule to show cause shall attach to the petition a proposed order6 ... and give notice to all other parties of the intention to request the court to issue the rule. (c) If the petition is within the scope of subdivision (a), is properly pleaded, and states prima facie grounds for relief, the court shall enter an order issuing a rule to show cause. ... Under both Rule 2959(b) and Rule 206.5, a petitioner seeking to open a judgment must aver prima facie grounds to open the judgment before a rule to show cause may issue to compel a response. Defendants' offer the defense of fraud in the inducement as the prima facie ground for relief. Section 162 of the Restatement (Second) of Contracts (1979) provides as follows: (1) A misrepresentation is fraudulent if the maker intends his assertion to induce a party to manifest his assent and the maker 6 In the case sub judice, Defendants' proposed order attached to their petition to open the confessed judgment mistakenly indicated that a rule had already been issued upon Plaintiff to show cause why the confessed judgment should not be opened, No such rule had been issued, 3 -~ .' "'" 'I T- -", ,-,,,,",.'. ~"'-', '";@)iq (a) knows or believes that the assertion is not in accord with the facts, or (b) does not have the confidence that he states or implies in the truth of the assertion, or (c) knows that he does not have the basis that he states or implies for the assertion. (2) A misrepresentation is material if it would be likely to induce a reasonable person to manifest his assent, or if the maker knows that it would be likely to induce the recipient to do so. Furthermore, non-disclosure of a fact may be equivalent to a misrepresentation. See Restatement (Second) of Contracts S 161 (1979). Typically, the question of fraud is one of fact for the fact-finder. First Fed. Sav, and Loan Ass 'n of Pittstown v. Reggie, 376 Pa. Super. 346, 355, 546 A.2d 62, 66 (1988). Consequently, in order for a rule to issue in this case, Defendants' petition must allege facts which would support a defense of fraud in the inducement, In the case sub judice, the court is of the view that Defendants' allegations that Plaintiff made fraudulent misrepresentations and omissions of material facts, including the allegations that Plaintiff failed to mention that she had paid a number of employees "under the table," increasing the out-of-pocket costs to Defendants, and that Plaintiff misreported the sales volume on the financial records of the business, prior to Defendants' purchase, are sufficient to support a defense of fraud in the inducement. As a result, a rule will be issued, and Plaintiff will be afforded an opportunity to respond to the allegations contained in Defendants' petition. For the foregoing reasons, the following Order will be entered: ORDER OF COURT AND NOW, this "It\.. day of February, 2001, upon consideration of Defendants' Petition To Open Confessed Judgment, and for the reasons stated in the accompanying opinion, this matter is stricken from the December 6, 2000, argument court list, and it is ordered that: 4 4dol . '" ~I' I," ~ '~ ~ i;j;f.lolliOO~liI&"~~. . 1. A Rule is issued upon Plaintiff to show cause why the Defendants are not entitled to the relief requested; 2. Plaintiff shall file an answer to the petition within 21 days of the date of this order; 3. The petition shall be decided under Pa. R.C,P. 206,7; 4. Depositions shall be completed within 49 days of the date of this order; 5. Argument shall be held on Thursday, April 5, 2001, at 1:30 p.m" in Courtroom No, 1, Cumberland County Courthouse, Carlisle, Pennsylvania; 6. Briefs shall be submitted at least seven days prior to argument. BY THE COURT, /s/1. Wesley 01er, Jr. 1. Wesley 01er, Jr., 1. Barbara Sump1e-Sullivan, Esq. 549 Bridge Street New Cumberland, PA 17070-1931 Attorney for Plaintiff Anna Marie Sossong, Esq. Skar1atos & Zonarich LLP 204 State Street Harrisburg, PAl 71 0 1 Attorney for Defendants 5 " "', ,. I,,,," 6 , " "~:' ,. ".",', --).' ",,"..l- ~il',*!,., , " ~ ;', (, ,', . -''I-; <"r""~"''''>'~'''''''' "1<;;,,';,;;,',, '- '-" ",' ~"~", I':"~ ; ,>~ ,';,,,,'><~,,;,;' .~.,'" ';,,',,', " " Barbara Sumple-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, P A 17070 (717) 774-1445 FERN L. WILSON, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VANIA v. : No. 00-6778 IRA J, McMANUS, JR., LESLIE J. McMANUS, JAMES R. DUNKLE, and KAREN 1. DUNKLE, Defendants : Civil Action PLAINTIFF'S RESPONSE TO DEFENDANTS' PETITION TO OPEN CONFESSED .JUDGMENT AND NOW COMES the Plaintiff, Fern 1. Wilson, and files this Response to the Petition of Defendants to Open Confessed Judgement: 1. Admitted in Part. Denied in Part, It is admitted that Fern 1. Wilson commenced this action on October 3, 2000 by Complaint to Confess Judgment against the Defendants upon an Installment Sales Agreement (hereinafter "Agreement") which contained a warrant of attorney. It is denied that a true and correct copy of the Agreement is attached to the Petition since no exhibits were, in fact, attached to the filing as received by Plaintiff, 2, Admitted with the clarification that the complaint is an action for ejectment and, as such, no itemization of damages are required. The complaint as filed is in accordance with Pa, RC,P. 2970 and is substantially in compliance with Pa. RC.P. 2974, as is mandated by the Rules of Civil Procedure for such actions. Plaintiff denies that Pa. RC.P. 2952(a)(7) and 2955(a) are relevant since this matter is not an action for recovery of money damages. , " I ; J:,-:~;,,;~: ~""'". , ",'J ,'. - ~, ."', < " '" "',~~ ~-~~ , , 3. Denied. It is denied that the sale was predicated upon fraudulent information. Defendants have failed to plead fraud with the required specificity and particularity to enable the Plaintiff to respond to the allegation. By way of further answer, it is specifically asserted that the real estate consists of an existing building which was available for inspection by the Defendants. It is further averred that the warranties of Seller as contained in the Agreement at paragraphs 22 and 23 make no reference to any financial records. There is no fraudulent breach averred, The only breach of record is the lack of payment by the Defendants. 4. Denied, After reasonable investigation, Plaintiff is without information as to the truth of the averment and same is denied. It is further denied that at any time Plaintiff misrepresented material facts. 5. Denied. Paragraph 5 is denied. Plaintiff does admit that, on specific occasions, a few, certain individuals were paid a limited amount of cash for certain types of services. However, it is specifically denied that this information was not conveyed to the Defendants during the negotiations of the sale of assets of the bar/restaurant business, which contract is not at issue or relevant to these proceedings. It is specifically averred that this information was communicated by Plaintiff to Defendant, James Dunkle, prior to the sale ofthe assets ofthe business. Mr. Dunkle was not concerned about same indicating his intention to reconstruct and change the entire business arrangement upon acquisition. Further, there was no expressed intention by James Dunkle to maintain the employment of the certain individual. It is denied that Defendants' "out of pocket" expenses were increased by $1,000.00 per week and proof thereof is demanded. It is asserted that said expenses were increased because Defendants had 2 , " ~",^ "~ ,"' , " '" " I I". ''''^;I.~"i; ;,;,,;; 0. ::...."", "", '"'" ',-.',C: ,'d~'~ - ''''''''''1ii . . too many employees on the payroll, including family members of the Dunkle family, These individuals were paid monies for positions and work assignments which had been previously undertaken by Plaintiff, Fern Wilson, without direct compensation as she worked in her regular capacity with the business. 6. Denied. It is denied that Plaintiff had artificially increased the sales volume on the records of the business prior to Defendants' purchase. It is averred that Plaintiff never increased the sales volume for any purpose on any documents. 7, Denied. Paragraph 7 is denied as a conclusion oflaw to which no responsive pleading is due. 8. Admitted, WHEREFORE, Plaintiff requests the Court strike the Petition to Open the Confession of Judgment in Ejectment and allow the matter to proceed in accordance with Pa. R.C.P. 2973.1. Dated: February 28, 2001 /..' ;flY ! Barbara Sumple-Sullivan, Attorney for Plaintiff 549 Bridge Street New Cumberland, PA 17070-1931 (717) 774-1445 Supreme Court I.D. No. 32317 3 ,,-'~ ! ,.' l'/ ""'k","',, '.C ~_',' ,'.,.:1'-,;""",,' ~ , '-.',;'.',,.;;;. ",>.:~,' ,,"'''' .'.','c'oJ">, """;':ifI; , , , ' Barbara Sumple-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, P A 17070 (717) 774-1445 FERN 1. WILSON, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : No. 00-6778 IRA 1. McMANUS, JR., LESLIE J. McMANUS, JAMES R. DUNKLE, and KAREN 1. DUNKLE, Defendants : Civil Action VERIFICATION I, Fern L, Wilson, hereby certify that the facts set forth in the foregoing Response To Defendants' Petition to Open Confessed Judgment are true and correct to the best of my knowledge, information and belief. I understand that'liny false statements made herein are subject to penalties of 18 Pa. C.S.A. 94904 relating to unsworn falsification to authorities. DATED: February 28, 2001 tfDr{~~ I , ^ , ~ I".,., ,~I_ ',;;,<_''''.'0'. ,;-;.,.1. L""",~,,,,,-,,....,,-_ .>i'~ ; :,,~k" ",n'L_ '" ^ w .,' '0<",," .. . ' , , " ~ Barbara Sump1e-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, P A 17070 (717) 774-1445 FERN 1. WILSON, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : No. 00-6778 IRA 1. McMANUS, JR., LESLIE 1. McMANUS, JAMES R. DUNKLE, and KAREN 1. DUNKLE, Defendants : Civil Action CERTIFICATE OF SERVICE I, Barbara Sumple-Sullivan, Esquire, do hereby certify that on this date, I served a true and correct copy of the foregoing Plaintiff's Response to Defendants' Petition to Open Confessed Jndgment, in the above-captioned matter upon the following individual(s) by first class mail, postage prepaid, addressed as follows: Anna Marie Sossong, Esquire Scott W. Pohlman, Esquire Skarlatos and Zonari 204 State Stre.et Harrisburg, ~A/i 71 ara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070-1931 (717) 774-1445 Supreme Court I.D. No. 32317 Attorney for Plaintiff DATED: February 28, 2001 ,~~~~' .1 ~ I~I I . .dli_""",,"-M~"'-' ilil,li"~' - . \. i, i . ... FINEMAN & BACH, P.C. BY: LEE APPLEBAUM, ESQUIRE IDENTIFICATION NO, 51646 1608 Walnut Street 19th Floor Philadelphia, PA 19103 (215) 893-9300 FERN L. WILSON Attorney for Defendants Ira 1. McManus, Jr. and Leslie 1. McManus, HIW COURT OF COMMON PLEAS CUMBERLAND COUNTY vs. CIVIL ACTION - LAW IRA J. MCMANUS, JR. LESLIE 1. MCMANUS, JAMES R. DUNKLE and KAREN L. DUNKLE NO. 2000-6778 CIVIL TERM ENTRY AND WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearance of Mitchell L. Bach, Esquire and Lee Applebaum, Esquire of Fineman & Bach, P.C. for Defendants Ira J. McManus, Jr, and Leslie J. McManus and withdraw the appearance of Skarlatos & Zonarich for Ira 1. McManus, Jr, and Leslie McManus, in the above- a Marie Sossong, ID#32808 Skarlatos & Zonarich 204 State Street Harrisburg, PA 17101 Withdrawing Counsel Mitchell L. B ID#17041 Lee Applebaum, Esquire ID#51646 Fineman & Bach, P.C. 19th Floor 1608 Walnut Street Philadelphia, PA 19103 Entering Counsel -,~~. J \: . ,'- FERN L. WILSON, Plaintiff, ~ b~" IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. v. NO. 00-6778 IRA 1. McMANUS, JR., LESLIE J. McMANUS, JAMES R. DUNKLE and KAREN L. DUNKLE, Defendants CIVIL ACTION CERTIFICATE OF SERVICE I, Anna Marie Sossong, Esquire, attorney for Defendants, McDunks, Inc., James R. and Karen L. Dunkle, Esquire, hereby certify that I this day served a copy of the foregoing Entry and Withdraw of Appearance upon the person(s) indicated below by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, and addressed as follows: Mitchell L. Bach, esquire Fineman & Bach, P.C. 19th Floor 1608 Walnut Street Philadelphia, PA 19103 Barbara Sumple Sullivan, Esquire 549 Bridge Street New Cumberland, P A 17070 Dated: 0/40( By: Anna Marie Sossong, Es uir I.D. No. 32808 204 State Street Harrisburg, Pa 17101 (717) 233 - 1000 Attorney for Defendants, McDunks Inc. and James and Karen Dunkle '"', '1~1Ill~1~~ .. i.~ " . '~ J ,....,-1' -. ,', ;/1 ' '- ;"",,' ,-~,~ ,', ,- "C7U ~ , FERN L. WILSON, Plaintiff v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION - LAW IRA J. McMANUS, JR., LESLIE J. McMANUS, JAMES R. DUNKLE, and KAREN L. DUNKLE, : Defendants NO. 00-6778 CIVIL TERM ORDER OF COURT AND NOW, this 29th day of March, 2001, upon consideration of the attached letter from Arma Marie Sossong, Esq., it is ordered and directed that depositions in the above matter are to be completed by April 30, 2001, and argument shall be held on Monday, May 21, 2001, at 3:00 p.m., in Courtroom No.1, Cumberland County Courthouse, Carlisle, Pennsylvania. rJI~ a ~I,y Oltt,] '~ C~,30r): 0" ~l{ ,.~ C) , J ~; " , , ---c., ;:,' -l?:: 9~; L :---"_..1 ; ]d /.:'- . c:-.) " (f) c~) - c:J -<~.- r--~ () :~ -v --.-, "Tj 2:: .() --2:., \. '--,' -" .'~ C) 5> '--' c w ,---, m :z: :::> 2.::J =< "~... e.fl :J.J -- , BY THE COURT, Barbara Sumple-Sullivan, Esq. 549 Bridge Street New Cumberland, P A 17070-1445 Attorney for Plaintiff Lee Applebaum, Esq. FINERMAN & BACH, PC 1608 Walnut Street 19th Floor Philadelphia, P A 19103 ,~: ....1 ~ I-~~ ,;<..-,_~cc_,,____ '~ , '''''''"''''''"r~~' Arma Marie Sossong, Esq. 204 State Street Harrisburg, PA 17101 :rc - -'-- bJ - I. . " ,-, '-~~JI~rffi,l SKARlLA'Ir06 & WNAmffi UP ATTORNEYS AT LAW 204 STATE STREET HARRISaURG, PENNSYLVANIA 17101 JOHN R. ZONAR1CH ANNA MARIE SOSSONG JOHN B. ZONARICH GREGORY S. CHELAP SCOTT W. POHLMAN SHELLYJ. KUNKEL DAVID H. JUDY (717) 233-1000 TELEFAX (717) 233-6740 WWW.5KARLATOSZONARICH.COM STEELTCJN OFFICE MECHANICS SAVINGS BUilDING. STE. 201 51 SOUTH FRONT STREE:T STEEl TON PE:NNSYlVANIA 171 13 (717) 939-9358 ANGELO SKARLATOS (1966 - 19811 VIA FACSIMILE and US MAIL The Honorable Judge J. Wesley Oler, Jr. Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013-3387 MIDDLETOWN OFFICE (717) 944-5109 WRITER'S EMAll: swp@skarlatoszonarich.com March 26,2001 RE: Fern L. Wilson v. Ira J. McManus, Jr., Leslie J. McManus, James R. Dunkle, and Karen L. Dunkle. Cumberland County No. 00-6778 Dear Judge Oler: Iam writing on behalf of all parties to request a thirty (30) day general continuance of the above referenced matter. The parties are jointly requesting the continuance because they have agreed to continue pursuing settlement negotiations in an effort to resolve theses matters without further need for litigation. Weare requesting that the continuance provide for the rescheduling of the argument, hearing and deadlines for completing depositions and briefs. Thank you for your assistance in this matter. Please contact my office if you have any questions. SWP cc: Attorney for Plaintiff, Fern Wilson Barbara Sumple-Sullivan, Esq. 549 Bridge Street New Cumberland, P A 17070-1445 (717) 774-1445 Fax (717) 774-7059 Si~>4Y' I .' / ~~~~ /) I .- / . l Attorney for Defendants, Ira and Karen McManus Lee Applebaum, Esq. Finerman & Bach, PC 1608 Walnut Street 19th Floor Philadelphia, PA 19103 (215) 893-8739 Fax (215) 893-8739 MAti 2 7 2001 r 111'o<j FERN L. WILSON, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. IRA J. McMANUS, JR., LESLIE J. McMANUS, JAMES R. DUNKLE and KAREN L. DUNKLE, Defendants CIVIL ACTION - LAW NO. 00-6778 CIVIL TERM PRAECIPE TO THE PROTHONOTARY: Please enter the appearance of the undersigned on behalf of the Defendants, James R. Dunkle and Karen L. Dunkle in the above matter. ~ ApJ,\ '2..~ \ Date C;,.~~d~k Attorney for Defendants Supreme Court 10 # 17225 525 North 12th Street Lemoyne, Pa 17043 (717) 761-5361 II _ i"" ,,,,,,,-,J,~,,,~",,,",,,,.~. '1 j,' ~,~ ,H., '~."7 ,"~,~^- "~~if"if'k'.,,-",' <'.~'i;~li.l~!OC'~ '~' 'e r, ;'- -- '. '.~" .~ "., '" '., 'I ltillJil () 0 c :.:;: ;eo. ,; CI:- " m [:[.I N Z :;;~ ~ I (j) G> -< r' C+. :::( 1'.) ,- c: .- :Z > () i"J (' I c:: ':::', ~ .~ "" ~, "::::, en ~~ 1,,% i:.,J.- , . :*-'),1 , FERN L. WILSON, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW IRA J. McMANUS, JR., LESLIE J. McMANUS, JAMES R. DUNKLE, and KAREN L. DUNKLE, Defendants NO. 00-6778 CIVIL TERM /' FERN ROCK-SNYDER, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW McDUNKS, INC., IRA J. McMANUS, JR., LESLIE J. McMANUS, JAMES R. DUNKLE, and KAREN L. DUNKLE, Defendants NO. 00-6777 CIVIL TERM SUGGESTION OF DEATH It is suggested that the Defendant, James R. Dunkle died on 4 May 2001 while a resident of Cumberland County. As yet, no Will has been produced and, therefore, it is not yet possible to determine who will be appointed the personal representative of the estate of the said James R. Dunkle. Date: 8 May 2001 ~ Samuel L. Andes Attorney for Defendant, Karen L. Dunkle II ~~ :["""'~ . , ~ ~ -1'.'0 I" ',I' ' :"". ,'. "-j,-,,", ~ . ~ CERTIFICATE OF SERVICE I hereby certify that I served an original of the foregoing Suggestion of Death upon counsel for the Plaintiff herein by regular mail, postage prepaid, addressed as follows: Date~ ~"d[()1 II " Barbara Sumple Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070 D~ ~f02p ~L.~ Attorney for Defendant, Karen L. Dunkle ft'S , . . . , CERTIFICATE OF SERVICE I hereby certify that I served an original of the foregoing Suggestion of Death upon counsel for the Defendants herein by regular mail, postage prepaid, addressed as follows: Lee Applebaum, Esquire 1608 Walnut Street, 19'h Floor Philadelphia, P A 19103 Date: Sa~AOdrrPM, Attorney for Defendant, Karen L. Dunkle ,... ... FERN L. WILSON, Plaintiff v. IRA J. McMANUS, JR., LESLIE 1. McMANUS, JAMES R. DUNKLE, and KAREN L. DUNKLE, : Defendants FERNROCK-SNYDER, INC., Plaintiff v. McDUNKS, INC., IRA J. McMANUS, JR., LESLIE J. McMANUS, JAMES R. DUNKLE, and KAREN L. DUNKLE, : Defendants , ,__ -J ~ ~~_~.i..,.~ . -iilll...tii!9:oli IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION - LAW NO. 00-6778 CIVIL TERM / IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION - LAW NO. 00-6777 CIVIL TERM ORDER OF COURT AND NOW, this 11th day of June, 2001, upon agreement of counsel, the argument previously scheduled in the above matters for June 18, 2001, is continued to Monday, July 2, 2001, at 8:30 a.m., in Courtroom No.1, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, , I I II " I' II I I:j "I I" 1:[ II 11; iil 1:...1 'I 'I I ".'1 1 , ,,' I;; ['11 I' ,I '.."...1 i' " I 'I ,I ......'1., I:'. Ij ::'1 i" 'J Ij j "'1 :" ~l "4 ~, - , ~. ~ ":' ,". ~ """""" C"__ _A",_ Fj!IJ}.Oi=F1CE C-f " - !'~,-!:""'~\!()T.;r1Y i'l JJI"112 Pi'! I: ') I j l.t. I I [,., CUMSt:Hu\I'D COUNlY PENNSYLVANIA , ~'~'~'>'-"~--~'''I ., L ~~~i:";1_Hl!'i:!Ji!mf'--;~-.!/lI!f'ij_:%i!1 =.,. ~, _~~~?""r'~,,,,.~i;~,~ <' ~ ",' '..-j '~ - .~'""' io;&, ,r -', Barbara Sumple-Sullivan, Esq. 549 Bridge Street New Cumberland, P A 17070-1445 Attorney for Plaintiff Lee Applebaum, Esq. FINERMAN & BACH, PC 1608 Walnut Street 19th Floor Philadelphia, P A 19103 Samuel L. Andes, Esq. 525 N. 12th Street P.O. Box 168 Lemoyne, P A 17043 :rc , r FERN L. WILSON, Plaintiff v. IRA J. McMANUS, JR., LESLIE J. McMANUS, JAMES R. DUNKLE, and KAREN L. DUNKLE, : Defendants . FERNROCK-SNYDER, INC., Plaintiff v. McDUNKS, INC., IRA J. McMANUS, JR., LESLIE J. McMANUS, JAMES R. DUNKLE, and KAREN L. DUNKLE, : Defendants . '.. 'k " ~ " 1'-'.' ,i -~ ',- '" .". lU;f",l IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION - LAW NO. 00-6778 CIVIL TERM IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION - LAW NO. 00-6777 CIVIL TERM ORDER OF COURT AND NOW, this 29th day ofJune, 2001, upon consideration of the attached letter from Samuel L. Andes, Esq., the argument previously scheduled in this matter for July 2, 2001, is continued generally. COUNSEL ARE requested to contact the court if they desire a hearing in the above matter. ^;> BY THE COURT, ~r-' , !:1 !.'Ii i: 1''' " !;I !~ ,il ,), , , ,;;, :."1' r', ,) i',i :q i::ji .. .: oW: "" ~"~~,. (il I,p,l ') 0 ",H..U ,_-, < ~~;~,i\HY F;; ." Q CUMl~::.i:-,_. . "UfIJ'!-Y PENi\J-S'y''L'/:'\i\i:/\ ,~ UIJ~ ~~~~~-","\~~ijil'W!!W>;:*'f~~":",,","',~ _,'rJr!~"'~~"~, -~- "' - q;,-- - '- "'~<<-""', 'illLL ,'~"",'~ , . Barbara Sumple-Sullivan, Esq. 549 Bridge Street New Cumberland, P A 17070-1445 Attorney for Plaintiff Lee Applebaum, Esq. FINERMAN & BACH, PC 1608 Walnut Street 19th Floor Philadelphia, PA 19103 Samuel L. Andes, Esq. th 525 N. 12 Street P.O. Box 168 Lemoyne, PA 17043 :rc I ~_ . '~d' " ' , - "-I~ ~. ~' ^~~' """"'i!J~J1:i 717-761-1435 SAM ANDES 359 P01 JUN 29 '01 09:37 , SAMUEL L. ANDES ATTORNEY AT LAW ~I;O NORTH TW:(i!:l:.FTH STRE'R"r P. Q. BOX 1$$ LEMOYNE, PENN5Yj:.'IIANlA 17043 1 J!.LZP!ltOKZl (7J7) 761'~3aJ 29 June 2001 :t'A'~ t 712') Tel-l43~ The Honorable J. Wesley Oler Judge of the Court of Common Pleas Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 RE: Fern L. Wilson vs. Ira J. McManus, Jr. et al. No. 00.6778 Civil Term Fernrock-snyder, Inc. vs. McDunks, Int:. et al No. 00-6777 Civil Term Dear Judge Oler: I represent Karen Dunkle and McDunks, Inc. in the above matters. I write on behalf of Barbara Sumple Sullivan, Esquire. who represents the Plaintiffs, Lee Applebaum, Esquire, who represents Mr. and Mrs. McManus, and myself. to advise you that the parties have reached agreement which will, when the e1greement is fully implemented, resolve all of matters raised in the above cases. The terms of the settlement require a series of transactions to be completed which will take, at a minimum, ninety dClY::' to complete. Accordingly, we all respectfully request that you cancel the argument set for Monday morning and continue matters in this case generally. If we are able to complete the settlement transactions, we will file something to formally dispose of the case within the next several months. If we need further guidance from the court, one or all of us will contact you at that time. Plea",e feel free to contact any of us if you have questions. Sincerely, 5amuel L. Andes amh cc Barbara Sumple Sullivan, Esquire Lee Applebaum, Esquire "_e '~ . . _ ",m,,,,",,,__,,__c_" -~',_' . ~ FERN L. WILSON, Plaintiff v. IRA 1. McMANUS, JR., LESLIE 1. McMANUS, JAMES R. DUNKLE, and KAREN L. DUNKLE, Defendants FERNROCK-SNYDER, INC., Plaintiff v. McDUNKS, INC., IRA J. McMANUS, JR., LESLIE J. McMANUS, JAMES R. DUNKLE, and KAREN L. DUNKLE, Defendants TO THE PROTHONOTARY: .,1, .. ,"," -~ '.. ',;. I",,",' '--. .'. '",:'; ,,',;.",~,.'~"o";"^',__;:_,~" ~'", ,', "l'--'~'iCJ'",,;;;'" ~j_,;;.~ -.;;,~, ""~ ",'_ "!.-_, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VANIA : No. 2000-6778 : Civil Action : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : No. 2000 - 6777 : Civil Action PRAECIPE Please mark Plaintiffs Complaints settled and discontinued. DATE: March 22, 2002 Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070-1931 (717) 774-1445 Supreme Court I.D. 32317 Attorney for Plaintiff .~" " ,''-"",~ " ,-- - 'I ,I.' .-' - '~..;..,di,I"'c~ ",',~",,-___ ,;".,'<,;,,,::_,;.;>', ,ri:,,": ,,-,,<^-,:';~'i\," "';',*~',;i.:;-;,:;';,;,,,,:, "":'Iii; , .. FERN L. WILSON, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : No. 2000-6778 IRA J. McMANUS, JR., LESLIE J. McMANUS, JAMES R. DUNKLE, and KAREN L. DUNKLE, Defendants FERNROCK-SNYDER, INC., Plaintiff : Civil Action : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VANIA v. : No. 2000 - 6777 McDUNKS, INC., IRA J. McMANUS, JR., LESLIE J. McMANUS, JAMES R. DUNKLE, and KAREN L. DUNKLE, Defendants : Civil Action CERTIFICATE OF SERVICE I, BARBARA SUMPLE-SULLIV AN, ESQUIRE, do hereby certify that on this date, I served a true and correct copy of the foregoing PRAECIPE in the above-captioned matter upon the following individual(s) by first class mail, postage prepaid, addressed as follows: Lee Applebaum, Esquire Fineman & Bach, P.C. 1608 Walnut Street 19th Floor Philadelphia, PA 19103 Samuel L. Andes, Esquire 525 North 12th Street P.O. Box 168 Lemoyne, PA 17043 Dated: March 22, 2002 ~ Barbara Sumple-Sullivan, Esquire Attorney for Plaintiff 549 Bridge Street New Cumberland, PA 17070-1931 (717) 774-1445 Supreme Court I.D. No. 32317 ~~", "ilIiI""C "~,~....~'" . ~" ,~;1,;A~l6t" ~... J ~ , . "" ~ -ofi~ rr"jr"i' ~5;.' ~;.~~' ',-\.., '''_.t_, ;G~ (~:' Z :;1 ,~ , " c - ',~ ! <, II II , Ii II ,I , ',\ ~ I ~ a 1''0 o --1"1 -.... :;':.1 r"j h_) '" '1'--- :'! "',~J -" ,-;:- :::> " , . ~-- ,,,, --",,,,," '. . . >',0 .' .',."" . ~'" """. ,"',\."'~ ", lilt " ~, FERN L. WILSON, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : No. 2000-6778 IRA J. McMANUS, JR., LESLIE J. McMANUS, JAMES R. DUNKLE, and KAREN L. DUNKLE, Defendants : Civil Action PRAECIPE TO SATISFY JUDGMENT TO THE PROTHONOTARY: Please mark the Judgment in the above captioned matter Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070-1931 (717) 774-1445 Supreme Court I.D. 32317 Attorney for Plaintiff DATE: June 4-,2002 "1=-.- 'I' ,.1,',-0'" "';'- .~'~":'~'"'''''~;'';'''''''';''' ","'--,- ''"'ci<~;,)''-'';;:;i,,;,.,k.,-,;-..;;.-;. :';: "";';"'Ji' ~ FERN L. WILSON, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : No. 2000-6778 IRA J. McMANUS, JR., LESLIE 1. McMANUS, JAMES R. DUNKLE, and KAREN L. DUNKLE, Defendants : Civil Action CERTIFICATE OF SERVICE I, BARBARA SUMPLE-SULLIV AN, ESQUIRE, do hereby certify that on this date, I served a true and correct copy of the foregoing PRAECIPE TO SATISFY JUDGMENT in the above-captioned matter upon the following individual(s) by first class mail, postage prepaid, addressed as follows: Lee Applebaum, Esquire Fineman & Bach, P.C. 1608 Walnut Street 19th Floor Philadelphia, PA 19103 Samuel 1. Andes, Esquire 525 North Ith Street P.O. Box 168 Lemoyne, P A 17043 Barbara Sumple-Sullivan, Esquire Attorney for Plaintiff 549 Bridge Street New Cumberland, P A 17070-1931 (717) 774-1445 Supreme Court I.D. No. 32317 Dated: June ~ 2002 ""'~ , '. ,;.~.- ~.' '" h.",,,- '. ,. Jll~ ,v_ ..,~ """ ",' " "h' o ['; ~!f~H ?r- 0,;: c:: c~: ,- ~{~' 2:: ~ :_"- " y u, (::> , 'I!l "I ; ~ I 'I.Ii. ., i I o ."'-.,,) o -"1 ~.- ~ :;} -'-ern '-,'j\~) '-;'..J,'1 ':T:J.:.i: f~F;? '~ --j' '\"~" S -<: f'.) 0-, .~7 ~;