HomeMy WebLinkAbout00-06811
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Jesse Raymond Ruhl, Esquire
PA Atty. No.: 55798
P.O. Box 1319
Carlisle, PA 17013
(717)241-4813
(717) 241-4829 (fax)
GENE EDMONDSON t/d/b/a
GBS ART DEPOT,
: IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
GETTY'S PET SHOP, INC.,
: CIVIL ACTION - LAW
CENTER CITY BREAD SHED, INC.,
MARTHA EBERSOLE t/d/b/a
MARTHA EBERSOLE'S
BEAUTY SALON,
: NO. to - 1P<t II
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MORGAN'S PLACE, INC"
and
HARRY E. LOWE t/d/b/a
HARRY'S HOT WINGS & THINGS,
Plaintiffs,
CIT GROUP, INC.,
: JURY TRIAL DEMANDED
Defendant.
NOTICE TO DEFEND
YOU HA VB BEEN SUED IN COURT. If you wish to defend against the claims set
forth in the following pages, you must take action within twenty (20) days after this Complaint
and Notice are served, by entering a written appearance personally or by attorney and filing in
writing with the Court your defenses or objections to the claims set forth against you. You are
warned that if you fail to do so the case may proceed without you and a judgment may be
entered against you by the Court without further notice for any money claimed in the Complaint
or for any other claim or relief requested by the Plaintiff. You may lose money or property or
other rights important to you,
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YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE, IF
YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE
THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Court Administrator
Cumberland County Courthouse
Fourth Floor
Carlisle, P A 17013
(717) 240-6200
AVISO
USTED HA SIDE DEMANDADO/A EN CORTE. Si usted desea defenderse de
las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro
de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando
personalmente 0 por medio de un abogado una comparecencia escrita y radicando en la Corte
por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se
Ie advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede
proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda 0 cualquier
otra reclamacion 0 remedio solicitado por el demandante puede ser dictado en contra suya par la
Corte sin mas aviso adicional. Usted puede perder dinero 0 propiedad u otros derechos
importantes para usted.
USTED DEBE LLEV AR ESTE DOCUMENTO A SU ABOGADO
INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO 0 NO PUEDE P AGARLE A
UNO, LLAME 0 VA Y A A LA SlGUIENTE OFICINA PARA A VERIGUAR DONDE PUEDE
ENCONTRAR AS1STENCIA LEGAL.
Court Administrator
Cumberland County Courthouse
Fourth Floor
Carlisle, P A 17013
(717) 240-6200
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Jesse Raymond Ruhl, Esquire
PA. Atty 1.0. No. 55798
36 S. Hanover Street
P.O. Box 1319
Carlisle,PA 17013
(717)241-4813
(717) 241-4829 (fitx) Attorney for Plaintiffs
GENE EDMONDSON t/dfb/a
GBS ART DEPOT,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
GETTY'S PET SHOP, INC.,
: CIVIL ACTION - LAW
CENTER CITY BREAD SHED, INC.,
MARTHA EBERSOLE t/dfb/a
MARTHA EBERSOLE'S
BEAUTY SALON,
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: NO. rrv
MORGAN'S PLACE, INC"
and
HARRY E. LOWE t/dfb/a
HARRY'S HOT WINGS & THINGS,
Plaintiffs,
crT GROUP, INC.,
: JURY TRIAL DEMANDED
Defendant.
COMPLAINT FOR DECLARATORY JUDGMENT
NOW COME Plaintiffs Gene Edmondson, t/dfb/a GBS Art Depot, Getty's Pet Shop,
Inc., Center City Bread Shed, Inc., Martha Ebersole, t/dfb/a Martha Ebersole's Beauty Salon,
Morgan's Place, Inc., and Harry E. Lowe, Inc., t/dfb/a Harry's Hot Wings and Things and file
the within Complaint for Declaratory Judgment as follows:
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1, Plaintiff Gene Edmondson, t/d/b/a GBS Art Depot, is an adult individual with a principal
place of business located at 105 N, Arch Street, Mechanicsburg, P A 17055,
2. Plaintiff Getty's Pet Shop, Inc, is a corporation organized and existing pursuant to the
laws of the Commonwealth of Pennsylvania with a principal place of business located at
2908 E. Market Street, York, P A 17402.
3, Plaintiff Center City Bread Shed, Inc. is a corporation organized and existing pursuant to
the laws ofthe Commonwealth of Pennsylvania with a principal place of business
located at 204 Locust Street, Harrisburg, P A 17462.
4. Plaintiff Martha Ebersole t/d/b/a Martha Ebersole'& Beauty Salon is an adult individual
with a principal place of business located at 160 Linglestown Road, Harrisburg, P A
17110.
5. Plaintiff Morgan's Place, Inc. is a corporation organized and existing pursuant to the
laws of the Commonwealth of Pennsylvania with a principal place of business located at
4425 N. Front Street, Harrisburg, PA 17100.
6. Plaintiff Harry E. Lowe, t/d/b/a Harry's Hot Wings and Things, is an adult individual
with a principal place of business at 1535 JameswayPlaza, Middletown, PA 17017.
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7. Defendant CIT Group, Inc, is a corporation with a principal place of business located at
233 N. Michigan Avenue, Suite 1800, Chicago, IL 60601.
8. Defendant CIT Group, Inc. ("CIT") acquired all of the outstanding common shares of
Newcourt Credit Group, Inc.
9. As part of its acquisition of New court Credit Group, Inc., CIT acquired all of the
outstanding shares of New court Financial USA, Inc. (hereinafter referred to as
"Newcourt"),
10. As a result of the acquisition, Newcourt assigned all of its interest in certain equipment
leases to CIT.
COUNT I - DECLARATORY JUDGMENT
11. Prior to the acquisition by CIT, beginning in 1999 and continuing through 2000, each of
the Plaintiffs contracted with Newcourt, now CIT, for the rental of certain credit card
processing equipment.
12, The equipment leased by each of the Plaintiffs was marketed and sold to Plaintiffs in
connection with credit card processing services that were provided by a third party
processor.
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13. Fundamental to the entire transaction were the representations made by the third party
processor's representatives that the Plaintiffs would be obtaining a package of services
which would allow the Plaintiffs to accept debit and charge card payments from their
customers for the goods and services purchased by the Plaintiffs' customers.
14. As a result of these representations, Plaintiffs entered into a contract for debit and credit
card processing services with a third party processors and entered into the leases for
equipment rental with Newcourt.
15. The Plaintiffs entered into the lease agreements with Newcourt because, as marketed and
represented by the third party processors, the Plaintiffs were advised and believed that
they were acquiring the services and equipment which would allow them to accept
electronic forms of payment (debit and credit cards) at their businesses.
16, Therefore, as part of this package of services, the Plaintiffs entered into the leases with
CIT's predecessor, Newcourt. A representative sample of the lease signed by each
Plaintiff is attached hereto at Exhibit "A" and incorporated herein by reference,
17. Nearly immediately after the credit card processing equipment arrived, the Plaintiffs all
began to experience material and critical difficulty processing their debit and credit card
transactions,
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18. Each of the Plaintiffs made numerous attempts to remedy the defects and deficiencies in
the debit and credit car processing services, but they were unsuccessful. As a result, in
an effort to mitigate their losses, the Plaintiffs terminated the contracts with the third
party processors and contracted with another processor.
19. Failure to provide the debit and credit car services as represented and promised was a
breach of the contracts with the Plaintiffs entitling them to terminate the contracts.
20. As a result of the third party processors' breaches of the debit and credit car processing
contracts, Plaintiffs are also entitled to void, rescind and/or cancel the lease agreements
made with Newcourt and entered into with Newcourt simultaneously with the contracts
for debit and credit car services.
21. In addition, the purpose for which Plaintiffs entered into the lease agreements with
Newcourt has been frustrated, and Plaintiffs are entitled to cancel the lease agreements
with Newcourt.
22. Each of the Plaintiffs have contacted Newcourt and advised Newcourt of their intentions
to cancel and terminate the leases. Nevertheless, Newcourt has refused to permit the
Plaintiffs to cancel and terminate the leases.
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23. To the contrary, Newcourt has threatened each of the Plaintiffs with collection actions if
the Plaintiffs do not continue to make lease payments to Newcourt, now CIT, even
though the Plaintiffs are no longer using the services of the third party processors or the
leased equipment itself.
24. A dispute has arisen between the parties which cannot be resolved.
WHEREFORE, Plaintiffs request a declaratory judgment:
a, Declaring the rights and obligations ofthe parties pursuant to the lease
agreement with Newcourt;
b. Declaring that the Plaintiffs are entitled to cancel, rescind and/or
terminate the lease agreements; and
c, Declaring such other and further relief as the Court may deem just and
proper.
LAW OFFICES OF JESSE RAYMOND RUHL
Dated: October 4, 2000
By:
e e aymond Ruhl
. Atty LD. No. 55798
36 S. Hanover Street
P.O. Box 1319
Carlisle, PA 17013
(717) 241-4813
(717) 241-4829 (fax)
Attorney for Plaintiffs
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SorOifll'8.Cent.rorlve, Sult.#420 T.L: 1-800-816-0425
Fort Washington, ~nnsylvania '19034
LESSE~ (NAME & ADDRE~S)
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NO -CA-N,ibtaLE
EQUIPMENT LEASE
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VENDOR (NAME & ADDRESS)
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EFS National Bank
2525 Horizon Lake Road
Memphis, Tennessee 38134
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EQUIPMENT OESeRIPTION
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TERM IN MONTHS
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PAYMENT SCHEDULE:
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q(.J Paym.nts of $ I.:;; <-~
(Includes advance payments)
PAYABLE AT SIGNING OF'LEASE /}
Plus Tax $
Total $
D FIRST AND LAST
MONTHS RENT
$ .\
COMMENCEMENT DATE
Local Sales Tax Rate
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TERMS AND CONDITIONS
1. STATEMENT OF LEASE, LESSOR LEASES TO LESSEE AND LESSEE LEASES FROM LESSOR THE EQUIPMENT L1STEO ABOVE OR, IF SEPARATELY SCHEDULED, I~I THE SCHEDULE
HERETO ANNEXED, MARKED SCHEDULE "A" AND MADE A PART HEREOF ALL UNDER THE. TERMS AND CONDITIONS AS SET FORTH HEREIN. SAID EQUIPMENT WILL BE LOCATED
AT THE ABOVE ADDRESS AND WILL NOT BE MOVED TO A NEW LOCATION WITHOUT WRITTEN PERMISSION FIRST GIVEN BY LESSOR.
2. (B.)NO WARRANTIES. LESSEE HAS SELECfED BOTH (1) THE EQUIPMENT (WHICH BY DEFINITION IN THIS LEASE INCWDES SOFTWARE, WHERE APPLICABLE) AND (2) THE ABOVE
~ENDOR FROt.\ WIIOM LESSOR IS TO. PURCIIASE TilE EQUIPIoIENT. LESSOR MAKES NO'WARRANTY EXPRESS OR IMPLIED AS TO ANY MATTER WIIATSOEVER, INCUlDING TilE
CONDITION OF THE EQUIPMENT, ITS MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE, AND AS TO LESSOR, LESSEE LEASES THE EQUIPMENT "AS IS,"
lb.) IF TilE EQUIPMENT IS NOT PROPERLY INSTA~LED, DOES NOT OPERATE AS REPRESENTED OR WARRANTED BY VENDOR OR IS UNSATISFACTORY FOR ANY FIEASON, LESSEE
SIIALL MA~E ANY CLAIM ON ACCOUNT THEREOF SOLELY AGAINST.VENDOR AND SHALL, NEVERTIIELESS, PAY LESSOR ALL RENT PAYABLE UNDER THIS LEASE, LESSEE HEREBY
WAIVING ANY SUCII CLAIMS AS AGAINST LESSOR. LESSOR MAY INCWDE, AS A CONDITION OF ITS PURCHASE ORDER, TIIAT VENDOR AGREE TIIAT ALL WARRANTUtS, AGREEMENTS
AND REPRESENTATIONS, IF ANY, WHICH MAY BE MADE BY VENDOR TO LESSEE OR LESSOR MAY BE ENFORCED BY LESSEE IN ITS OWN NAME. LESSOR HEREBY AGREES TO
ASSIGN TO LESSEE, SOLELY FOR THE PURPOSE: OF MAKING AND PROSECUTING ANY SAID CLAIM, ALL OF THE RIGHTS WHICH LESSOR HAS AGAINST VENDOR FOR BREACH
OF WARRANTY OR OTIIER REPRESENTATION RESPECfING THE EQUIPMENT. LESSOR SHALL HAVE NO RESPONSIBILITY FOR DELAY OR FAIWRE TO FILL THIE ORDER.
(c.) LESSEE UNDERSTANDS AND AGREES THAT NEITHER THE VENDOR NOR ANY SALESMAN OR OTHER REPRESENTATIVE OF THE VENDOR, IS AN AGENT OF LESSOI~. NO SALESMAN
OR AGENT OF VENDOR IS AUTIIORIZED TO WAIVE OR ALTER ANY TERM OR CONDITION OF TillS LEASE, AND NO REPRESENTATION AS TO TilE EQUIPMENT OR ANY OTIIER
MATTER BY TilE VEND.ORSHALL IN ANY WAY AFFECf LESSEE'S DUTY TO PAY THE RENT AND PERFORM ITS OTHER OBLIGATIONS AS SET FORTIIIN THIS L.EASE.
(d.) LESSEE HEREBY ACKNOWLEDGES THAT IT liAS RECEIVED A COPY OF THIS LEASE.
(e.) LESSEE HEREBY AUTH_ORIZES'LESSOR TO INSERT IN THIS LEASE THE SERIAL NUMBERS, AND OTHER IDENTIFICATION DATA, OF THE EQUIPMENT.
3. AUTHORIZATION AGREEMENT rOil :'~JTOMATlC WITHDRAWAL Oi= RENTAL PAYMENTS
I. the undersIgned Lessee in the capaclly set forth below, hereby authorize Newcourt Financial USA Inc. or its designee, successor or assign (hereinafter "Lessor") to automatically withdraw
my monlhly lease payment and any amounts, including any and alllaxes or other ch~rges now ,due or hereinafter imposed, owed in conjunction with the above referenced Equipment Lease
(hereinafter "Lease") by initiating debit entries to my account at the financial institution (hereinafter "Bank") evidenced on the check copy provided. or such other Bank thllt may be used by
me, from time to time. As set forth in paragraph 16, in the event of default of my obligations hereunder, I aulhorize debit 01 my account for the full amount due under this Lease Agreement?
A rental payment (whether paid by debit or other means) that- is not honored by my bank for any, reason will be subject to.a $10.00 service fee Imposed by Lessor, the amourlt of which may be
debited from my account, Further, I authorize mv Bank to accem and to charoe anv debil entries initiated by Lessor 10 mv account during the term of this Lease, .
SEE REVERSE SIDE FOR ADDITIONAL TERMS AND CONDITIONS WHICH ARE PART OF THIS lEASE.
LEASE ACCEPTANCE
CERTIFICATE OF ACKNOWLEDGEMENT AND ACCEPTANCE OF LEASED EQUIPMENT
I have read and agree to the terms which appear on both sides of this Lease. I represent that this Equipment Is being leased for businel8 and I or professional purposes and agree that
under no circumstances shall this Lease be conlitrued'as a consumer contract. I acknowledge receipt of a completed copy of this Lease, with all lease terms filled in, and acknowledge
and agree that I shall be deemed 10 have unconditionally and irrevocably accepted the Equipment you have leased me under our Lease, particutars of which are given above, that it has been
delivered as requ~sted, that the Equipment is in good condition, and Lessor has fully and satisfactorily performed all covenants and conditions to be performed by Lessor.
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ACCEPTED BY LESSEE:
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ACCEPTED BY LESSOR:
NEWCOURT F~NANCI USA INC. ;!,
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By
Title
AGENCY DISCLAIMER: NEITHER VENDOR NOR ANY SALESPERSON IS AN
AGENT OF LESSOR NOR ARE THEY AUTHORIZED TO WAIVE OR ALTER THE
TERMS' ~F THIS LEASE. THEIR REPRESENTATIONS SHALL IN NO WAY
AFFECf LESSOR'S RIGHTS AND LESSEE'S OBLIGATIONS AS HEREIN
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Title Date
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PERSONAL GUARANTY
_For the purpose of.inducing LessOr to extend-and continue to extend credit to Lessee, it is agreed.that in the event that Lessee shall default in the payment, when and afl due, whether as a
result of a- declaration of default under the Lease (as to payments, other charges, duties undertaken or otherwise), undersigned will pay 'to Lessor on demand, an amoun.t equ,al to all paYJRepts
then due and owing, whether as a result of accelenltion or otherwise, by Lessee to Lessor under the Lease, as well aa'aH sums, charges, or other obligations thereunder, and all attorney's fees
and expenses incurred by Lessor in enforcing this guaranty.
'NTENDING TO BE LEGALLY BOUND HEREBY. each of the undersigned (hereinafter called "Guarantor") consents 10 the terms and conditions of the above Lease and unconditionally and
irrevocably assures and guarantees to Lessor, joinU)' and severally (If more than one), full and timely performance and observance of all duties and obligations of Lessee under the above Lease,
including without limitation prompt payment when due, whether by acceleration or otherwise, of rent, renewal rent, additional rent, attorneys' fees, interest, late charges, COllis and expenses ot
collection incurred by Lessor in enforcing Lessee's duties and obligations under the :above Lease and all other amounts owed under the above Lease., This is a continuing "uaranty of paymenl
and performance (and not of collection), and Guarantor hereby waives to the fullest eldent allowed by law any defense to paymenl hereunder, including as a result any increase or extensior
of the qbligations guaranteed herein or the retease of any security therefor. The undersigned agrees and consents to the jurisdiction of the Courts in the manner and as prescribed ir
Paragr.Jiphs 19 and 21. --
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Guarantor's Signature
Date
Rev. 7/98
EXHIBIT "A"
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... FINANCE LEASf-- 'he parties agree lhal this lease is a nee lease" as defined by
~lon 2A-103{g) of'the Uniform CommerCial Code ("UCC")., JIB acknowledges either (a)
thai. Lepe1l #lis "'reviewed and approved any written Supply Contlacl (as defined in the UCC
covering the EQuipment purchased Irom the "Supplier" (as defined in the UCCj thereof lor lease
to Lessee or (b) that Lessor has informed or advised lessee. in writing, either previously or by
this Leas., of the following: (i) Ihe idenlity of the Supplier; (H) thai the lessee may have rights
under the Supply Contract; and (iii) that the Lessee may contact the Supplier for a description
of any such rights lessee may have under the Supply Contract.
5. ORDERING EQUIPMENT; lESSOR'S RIGHT TO TERMINATE. Lessee requests Lessor to
purchase the Equipment from the vendor named above (the "Vendor") and arrange for delivery
to Lessee at Lessee's expense. If within lorty-five (45) days from the date Lessor orders the
Equipment, the same has not been delivered. installed and accepted by Lessee in form satisfactory
to Lessor, Lessor may on ten (10) days' wnllen notice to Lessee terminate the Lease and its
obligations to Lessee.
6. TERM AND RENTAL PAYMENTS, SUblect to the conditions herem sellorth. thiS Lease shall
be lor the term set forth on the reverse side hereof and shall commence on the" Commencement
Date". As used in this Lease the term "Commencement Date" With respect to any portion of
the Equipment covered by thiS Lease shall mean the date on which the Vendor delivers and
completes the installation of the EqUIpment. Lessee agrees 10 pay the total rental for the entire
term hereof which shall be the total amount of all rental payments set forth on the reverse side
hereof, plus such additionat amounls as may anse hereunder, or pursuant to any modification
01" additional mitten agreemen\ here\o. Any secUlily depcSll pallj by lessee" shall r.o\ be relundable
to Lessee in the evei'll that the term of thiS Lease does not commence for any reason not the
fault ot Lessor. Rental ~:;,yments hereunder shall be monthly and shall be payable in advance
on the 1st day or the 15th day of any month. whichever day Iirst occurs on or alter the
Commencement Date and on the same day of each and every month thereafter and shall be
sent to the address of lessor specllled ll'I thiS Lease. or as otherwise directed by Lessor m writing.
LESSEE'S OBLIGATION TO PAY ALL RENTALS SHALL BE ABSOLUTE AND UNCONDITIONAL
AND IS NOT SUBJECT TO ANY ABATEMENT. OFFSET. DEFENSE OR COUNTERCLAIM FOR
ANY REASON WHATSOEVER.
7. ASSIGNMENT. (a) LESSOR MAY ASSIGN OR TRANSFER THIS LEASE OR LESSOR'S
INTEREST IN THE EQUIPMENT WITHOUT NOTICE TO LESSEE, Any assignee of Lessor shan
have all of the rights, but none of the obligations. of Lessor under lhls Lease and lessee agrees
thai it will not assert agamst any assignee of Lessor any delense. counterclaim or offsel that
Lessee may have against Lessor, Lessee acknowledges that any assignmenl or transfer by Lessor
shall not materially change Lessee's duties or obligations under thiS Lease nor materially Increase
the burdenS or risks imposed on Lessee. Lessee agrees that Lessor may assign or Hansler fhls
Lease or lessor's interesf mthe EqUlpmem even If said assignment or transfer could be deemed
to materially affect the interests of Lessee, tblLESSEE SHALL NOT ASSIGN OR IN ANY WAY
DISPOSE OF ALL OR ANY PART OF ITS RIGHTS OR OBliGATIONS UNDER THtS LEASE
OR ENTER INTO ANY SUBLEASE OF ALL OR ANY PART OF THE EQUIPMENT WITHOUT
THE PRIOR WRITTEN CONSENT OF LESSOR. (c) Lessee shall not create. assume or sutler
10 exist any mortgage, lien. pledge or other encumbrance or attachment of any kind whalsoever
upon, affecting or With respect to the Equlpmem or thiS Lease or any of Lessor's interests
thereunder,
8. TITLE; QUIET ENJOYMENT. Lessor shan at an limes retain \llIe to the EqUipment. All
documents of title and evidence of dei1very shaH be dehvered to Lessor. Lessee hereby authorizes
Lessor, at Lessee's expense, to cause thiS Lease, or any statement or other inslrument in respect
\0 this lease shOWing the in\eles\ ollessO! in the Equipment, including Unilorm Commercial
Code Financing Statements, to be filed O! recorded and refiled and re-recorded. and lesse,e grants
Lessor the right to execute Lessee's name thereto. Lessee agrees to e)(ecute and deliver any
statement or instrument requested by Lessor lor such purpose, and agrees to payor reimburse
Lessor for any filing, recording or stamp fees or taxes arising from the filing or recording of any
such instrument or statement. Lessee shall at ils e)(pense protect and defend Lessor's title against
all persons claiming against or through Lessee. at all times keep the Equipment free from legal
process or encumbrance whatsoever and. shall give Lessor immediate notice thereof and shall
indemnify Lessor from any loss caused thereby. lessee agrees to procure lor Lessor such estoppel
certificates, landlord's or mortgagees' waived or other SImilar documents as _Lessor may
reasonably request. Provided Lessee IS not In delault hereunder, lessee shall qUietly use and
enjoy the Equipment sublect to the terms hereof
9. CARE, USE AND LOCATION. Lessee shall malntam the EqUipment m good operatmg
condition, repair and appearance. and protectlhe same from detefloralion other than normal
wear and lear; use the Equipment in the regular course of its business, Within its normal operati~g
capacity, without abuse: comply with all laws. ordinances. regulations. requirements and rules
with respect to the use. maintenance and operation of the EqUIpment: use the EqUipment solely
lor business purposes: not make any modification. alterahon or addition to the EqUipment Without
the written consent of Lessor, which shall 1'101 be unreasonably Withheld: not so affi)( Ihe EqUipment
to realty as to change its nature to real property at all times regardless of how attached or installed:
keep the Equipment at the location shown herein: and not remove the Equipment without the
written consent of Lessor. which shalt not be unreasonably Withheld.
10, NET LEASE: TAXES. lessee mtends the rental payments hereunder to be net to Lessor.
and Lessee agrees to pay all sales, use. excise. personal property, stamp, documentary and ad
valorem taxes. hcense and registration lees, assessment, fmes, penalties and SimIlar charges
imposed on the ownership. possession or use of the Equipment durmg the term of this Lease;
pay all taxes (except Lessor's Federal or State income taxes) Imposed on Lessor or Lessee with
respect to the rental payments hereunder or the Equipment: and, reimburse Lessor upon deman.d
for any taxes paid by or advanced by Lessor. In addition to monthly rent hereunder. Lessor Will
charge-lessee a liquidated monthly personal property ta)( fee and Will adVise lessee In writing
of such fee. lessor willlile all personal property tax returns and remit all personal property ta)(es
payable with respect to the Equipment
11. INDEMNITY, Lessee shall and does hereby agree to mdemnify and save lessor. its agents.
servants, successors, and assigns harmless from any and all. liablhty, damage or loss, Including
reasonable attorneys' fees, ariSing out of Ihe ownership. selection, possession. leasll'g, operating,
control, use, condition (including but not limited to latent and .other defects. whether 0'. not
discoverable by Lessee), maintenance, delivery and relurn of the EqUipment, The mde.ml'llties
and obligalions herein prOVided shall continue m full force and effect notwlthstandmg the
termination of the Lease.
12, INSURANCE. Lessee shall keep the Equipment insured against all risks of loss or damage
from any cause whatsoever for not less than the full replacement vCllue ~hereof, Th.e amount of
such insurance shall be sufficient so that neither Lessor nor Lessee Will be conSidered a co-
insurer. Lessee shail carry public liability msurance, both personal injury and property damage,
covering the Equipment All such insurance shall be in form and with companies satisfactory
10 Lessor and shall name lessor and its assignee as Loss Payee as ItS interest may appear wi,th
respect to property damage coverage and as additional msured with respect to public liablhty
Coverage. ~SS" shall pay the premiums for such insurance and upon lessor's request deliver
to Lessor satisfactory eVIdence 0'- insurance cOlJerage required hereunder. The proceeds 01 such
insurance payable as a result oi loss or damage to any item 01 Equipment, shall be applie~ to
satisfy Lessee's obligation as sellorth in Paragraph 13 below. Lessee hereby Irrevocably appoints
L:essor as Lessee's attorney-in-fact to make a claim for. receive payment of and execute and
endorse all documents, checks or drafts received in payment for loss or damage under any such
iP.SU. ~a~e policy. . .
I,..".., .
~. "ISK OF LOSS. Lessee shaH bear all risks 0' loss of and damage to the Equipment from
anyeause and the occurrence of such loss or damage shall not relieve Lesse~ ~l any ~bhgation
hereunder. In the event of loss or damage. lessee. al ItS option. prOVided It IS not Il'I default
hereunder,(otherwise at Lessor's option), shall: (a) place fhe damaged Eq~lpment in ~ood repair,
condition,a'nd working order; or (b) replace lost or damaged Equipment With new eqUipment and
deliveno Cessor documentation creating clear title thereto in Lessor; or (c) pay to lessor the
then presenl value computed at six {6%l percent per annum of both the unpaid balance of the
aggregate rent reserved under the Lease and Ihe value of the Lessor's residual interest in the
Equipment at Lessor's sole determll'la\lon (the "Stipulated Loss Value").
14, INSURANCE NONCOMPLIANCE. In the event thaI Lessee has not complied with lessee's
obligations under Paragraph 12 of this agreement by not delivering to lessor evidence of insurance
naming Lessor as loss payee or additional intended. or upon the cancellation or. non-renewal
of the required insurance, then Lessee shall be subject to an Insurance Noncompliance Charge
in the amount of $2.50 per month per item of Equipment. said amount to be paid with Ihe next
monthly renlal payment and all subsequent payments due during the remaining term of ~he Lease.
or until such time as satisfactory evidence of Il'Isurance coverage has been provl~ed. The
imposition 01 the Insurance Noncompliance Charge shalt not relieve Lessee of any obligation
under Paragraph 13 of this agreement
15. EVENT OF DEFAULT. If anyone of the 'ollowmg events (each an "Event of Detault") shall
occur, than to the extent permitted by applicable law, lessor shall ha~e the nght to exercise any
one or more remedies set lorth in Paragraph 16 below: (a) lessee falls to pay any rental or any
other payment hereunder when due: or (b) Lessee fails 10 pay, when due. any indebtedness of
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lessee to Lessor arising ir ldentlyof this Lease, and sllch default ilhalfcOntinue'tf:j~.tive
(5) days; or (cJ Le~see falls., ,.arform any of the terms, covenan~,.,~r con~itiOfl:'i~ this-~e
other than as prOVided in (a) or (b) abOve after ten (10) days' wrinen ttotlce; 6n(d) l-8t'iStlI8! becomes
insolvent or makes an assignment for the benefit 01 creditors; or (e) a receiver, trust8e, conservator
or liquidator of Lessee of all or a substantial part of its assets is appointed with Dr without the
application or consent of Lessee; or (f) a petition is filed by or against Lessee uncler the Bankruptcy
Code or any amendment thereto, or under any other Insolvency law odaws-providing for the
relief of debtors.
16. REMEDIES. Upon the occurrence 01 any Event of Default and at any time thereaftEt[, lessor
may, with or without terminating this Lease, in its sole discretion, do anyone or moFe of the
fOllowing: (a) upon notice to Lessee, terminate this lease and all Lease Schedules, (lxecuted
pursuant thereto: (b) iI Lessor deCides, in Its sole discretion not to take pOS!leSSlOO of the
Equipment, Lessor continues to be the owner of the Equipmflnt, and may, but i~1 not obligated
to, dispose of the Equipment by sale or otherwise, all of which determinations mClY be made by
lessor in its absolute discretion and for its own account; (c) declare immediately due and payable
an sums due and to become due hereunder for the full term of the Lease (including any renewal
or purchase options which Lessee has contracted to pay and automatically charge Lessee's bank
account for such monies); (d) with or without terminating this lease, recover the S;tipulaled Loss
Vaiue 01 the Equipment as of the rent payment date immediately preceding Lessee's date of default
at Lessor's sole determination as a genuine pre-estimate of liquidated damageli and not as a
penalty plus all commercially reasonable costs and expenses incurred by Lessor in any
reposseSSion, recovery. storage. repair, sale, re-lease or other disposition of the Equipment,
mcluding reasonable attorneys' less and costs incurred in connection therewith or otherwise
resulting from lessee's default; (e) in i1s sole discretion, re-lease or sell any or all of the Equipment
at a public or private sale on such terms and notice as Lessor shall deem reasonat.le and recover
from Lessee damages. not as a penalty. but herein liquidated for aU purposes ancl in an amounl
equal 10 the sum of (i) any accrued anrl unpaid rent as of the later of (A) the dale of the default
or (B) the date that Lessor has obtained possession of the Equipment or such other date as Lessee
has made an eHective lender of possession of the Equipment back to Lessor ("Default Date");
plus rei'll (at the rate prOVided for in the Lease and any Lease Schedule) for a periOd (fhe "Additional
Period") commencing on the Default Date and ending on the earlier of (A) the date of the
EqUipment is resold or re-Iet by Lessor or (B) the date of entry of judgment in favor of lessor;
(ii) the Stipulated Loss Value of the Equipment as of the rent payment date immedia.lely preceding
the Default Date; (iii) all commercially reasonable costs and expenses incurred by Lessor in any
repossession. recovery. storage, repair. sale, re-lease or other disposition of Ille Equipment
Including reasonabie attorneys' fees and costs incurred in connection with or otherwise resulting
Irom Lessee's default: and (ivl any indemnity, if then determinable plus interest at Iwelve percent
(12010) per annum: LESS the amount received by Lessor upon such public or private sale or re-
lease 01 the Equipment. if any; (f) if (i) Lessor elects not to sell. re.lease or otherwise dispose
of all or part of tne Equipment or (ii) does so by a re-lease which is not madl! in a manner
substantially SimIlar to Ihe appiicable Lease Schedule or (iii) the measure of damages under
subparagraphs (d) or (e) above are not allowable under any-applicable law, LesSClr may recover
the market value, if any. as of the Delault Date of the rent reasonably estimatelj by Lessor to
be obtainable for the Equipment during the remaining Lease_term or any renewal thereof Ihen
11'1 effect. plus any accrued and unpaid rent as of the Default Date; (9) exercise ,my other right
or remedy which may be available to it under tne Uniform Commercial COde or any other applicable
law: (h) a termination nereunder shall occur only upon notice by lessor and only as to COntinue
in tull force and effect as to the remaining items. if any; (1) if this Lease is deeml~d at any time
to be one intended as security, Lessee, agrees that the Equipment shall secure. in addition to
the indebtedness set forth herein, indebtedness at any time owing by Lessee to L~sl;or. No remedy
referred to in this Paragraph is intended 10 be exclusive, but shall be cumulative Clnd in addition
to any olher remedy relerred 10 above or otherwise available to Lessor at law or in equity. No
e)(press or implied waiver by lessor of any default shall constitute a waiver of any other default
oy lessee or a waiver of any of Lessor's rights,
17. CHANGE OF NAME, BILLING ADDRESS, BANK ACCOUNT, Lessee will Inform lessor.
WIthin ten (10) days. of any change In Lessee's name, address, billing address, telephone numbers.
location of Equipment, or the bank checking account used for automatic withdrawal of rental
payments. lessee agrees that a $100.00 charge may be charged for lailure to noti~1 Lessor withm
the prescribed time period. lessor is authorized to correct any typographic or ,spelling errors
made on the front of thIS Lease regarding Lessee's address, telephone numbers, or the Equipment
leased.
18. END OF LEASE TEAM. At the expiration or earlier termination of the Lease term, lessee
has the following options; (1) Lessee shall disconnect and relurn the Equipment, freight prepaid,
to Lessor in good repair, condition and working order, in a manner and to a location designated
by lessor, (2) lessee can purchase the Equipment in accordance with the terms of any Purchase
Option Letter as supplied by lessor. plus any applicable taxes, or (3) lessee I;an extend the
Lease term upon all the terms and conditions as stated herein for a period of orle year from its
expiration date without the necessity of the execution 01 any further instrument c,r document. At
the end of this additional year, options 1,2 and 3 are again available to Lessee, Unless Lessee
notifies Lessor in writing ninety (90) days prior to the expiration of the Lease term, lessee shall
have been deemed to have chosen option 3 (Automatic Renewal lor one year). LElssor will return
Lessee's security deposit, if any, after deducting any amounts owed Lessor under the conditions
of this Lease if Lessee chooses option 1 or 2 above.
19. CONFESSION OF JUDGMENT. LESSEE COVENANTS AND AGREES THAT IF THE REN r
AND/OR ANY CHARGES RESERVED IN THIS LEASE AS RENT SHAll REMAIt"1 UNPAID FIVE
,5) [JAYS AFTE!1 THE SAME IS REOUiRED TO BE PAID. THEN AND IN THAT EVENT. LESSOR
M/","( CAUSE JUDGMENi 10 BE ENTERED AGAINST lESSEE AND/OR GUARANTDRlS). AND
FOR lHAT PURPOSE LESSEE AND lOR GUARANTOR(S) HEREBY AUTHORIZES AND
EMPOWERS LESSOR OR ANY PROTHONOTARY. CLERK OF COURT OR ATTOi'lNEY OF ANY
COURT OF RECORD TO APPEAR FOR THE CONFESS JUDGMENT AGAINST LESSEE
Ar~D, OR GUARANTOR(Sl WITH OR WITHOUT DECLARATION FILED, FOR SUCH SUM OR
SUMS 1\5 MAY BE PAYABLE HEREUNDER AND WITH COSTS OF SUIT, RELEASE OF
ETH-jQRS, WlnfOUT STAY OF E,.;ECUTrON AND WITH TWENTY PERCENT (20o-b) ADDED
AS AT'101~NEY'S COLLECTION FEES_ HEREBY WAIVING AND RELEASING ALL RELIEF FROM
AN'T AND ALL AI-'PHAISEMENT AND STAY OF EXEMPTION LAWS OF ANY STATE. BY SIGNING
THIS LEASE LESSEE AND/OR GUARANTOR(S) ACKNOWLEDGES THAT THEY
UNDERSTAND LESSOR MAY OBTAIN A JUDGMENT AGAINST ANY ONE OR MORE OF ThEM.
AND EXECUTE UPON AND SEIZE FORTHWITH THEIA PROPERTY AND ASSETS WITHOUT
THE OPPORTUNITY TO RAISE ANY DEFENSE. SET.OFF. COUNTERCLAIM. OR OTHER
CLAIM THAT THEY MAY HAVE EACH KNOWINGLY. VOlUNTAAlLY. AND INTELLIGENTLY
WAIVES THEIR RIGHTS TO ANY PRIOR NOTICE (EXCEPT FOR NOTICE REQUIRED UNDER
THE SPECIFIC TERMS OF THE LEASE) OR JUDICIAL DETERMINATION AS A MATERIAL PART
OF THE CONSIDERATION FOR THIS LEASE AND IN ORDER TO INDUCE THE lESSOR TO
ENTER INTO THIS LEASE.
20, LATE PAYMENTS AND COLLECTION COSTS. If Lessee does not make a payment within
10 days of its due date, Lessee must pay, in addition to the payment, a late charge of $10.00
lor each late payment. Each month the past due payment remains unpaid, an additional late
fee of $10.00 will be assessed. Lessee wi.1I pay Lessor's collection cosls, and reasonable Attorney's
fees. Such collection costs include, but are noftimited to charges lor collection letter,s and collection
calls and to charges of collection agencies, courts, sheriffs, etc. There will be a processing charg.e
of $1000 for any returned check or for any rejected credit card charge or for any rejected automatic
bank account deblt. Payments are apphed to late fees and to processing chargE'iS tlrst and then
to. Lease obligati9ns.
21. MISCELLANEOUS. This Lease shall be binding when accepted in writing by an authorized
representative of Lessor which acceptance shall deem acknowledgement ,and c~ttsent by ~e$~ee I
of jurisdiction over il by the courts 01 the Commonwealth 01 Pennsylvama. Th1!l Lease and the'
terms hereof shall be governed. by the internal laws of the Commonwealth 01 Pennsylvania,
provided, however, in Ihe event this lease or any prqvision hereof is not enforcaai:lleunder the
laws of Pennsylvania then' the laws of the stElote where the Equipment is locatlld ~hail govern.
lessee consents and agrees that the courts of the Commonwealth of Pennsyl1/ama shall have
jurisdiction over it and, for the purpose of such jurisdiction, Lessee hereby attorns 10 the jurisdiction
of Ihe Commonwealth of Pennsylvania. lessee agrees and consents that service of process by
registered or certified mail will be sufficient to obtain jurisdicti,on. Nothing COntained herein is
intended to preclude Lessor from commencing any action hereunder in any court having
jurisdiction thereof. Lessee waives, insofar as permitted by law, trial by jury in ai'll! action between
the parties, This lease contains the entire agreement between the parties and may not be
amended, modified. terminated or otherwise changed except in writing and signed by an
authorized ollicer of Lessor,
22. DISCLOSURE OF INFORMATION, lessee and Guarantor(s) expressly grants to lessor or
its agents or assigns continuing authorit~ 10 co~duct credit ch,ec~ and background investig~tions
concerning Lessee and Guaranlor(s) Including, but not limited to, character and bUSiness
references and the financial condition of Lessee and Guarantor(s). Lessee ,and Guarantor(s)
authorize lessor~to gather and receive such information from any and all third parties. lessee
and Guarantor{s) hereby agree that Lessor has the right to report late payments and defaults to
credit agencies as deemed appropriate by Lessor.
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Jesse Raymond Ruhl, Esquire
PA. Atty lD. No. 55798
36 S. Hanover Street
P.O. Box 1319
Carlisle,PAI7013
(717)241-4813
(717) 241~4829 (fax) Attorney for Plaintiffs
GENE EDMONDSON t/d/b/a
GBS ART DEPOT, et al.
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs,
: CIVIL ACTION - LAW
v,
: NO. 00-6811
cn GROUP, INC.,
: JURY TRIAL DEMANDED
Defendant.
PRAECIPE TO SUBSTITUTE VERIFICATION
TO THE PROTHONOTARY:
Kindly substitute the attached original Verifications to the Complaint filed in this case,
Dated: October 18, 2000
Ie e aym d
P . Atty LD. No, 55798
36 S. Hanover Street
P.O. Box 1319
Carlisle, P A 17013
(717) 241-4813
(717) 241-4829 (fax)
By:
Attorney for Plaintiffs
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VERIFICATION
Gene Edmondson, tld!b/a GBS Art Depot, deposes and says, subject to the penalties of 42
Pa.C.S.A. Sec. 4101, relating to unsworn falsification to authorities, that the facts set forth in the
foregoing Complaint are true and correct to the best of his knowledge, information and belief.
..11t"/'y\.(? f'~ -"'^'-~~
Gene Edmondson
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VERIFICATION
Wesley Senft, President of Getty's Pet Shop, Inc., deposes and says, subject to the
penalties of 42 Pa,C,S,A Sec. 4101, relating to unsworn falsification to authorities, that the facts
set forth in the foregoing Complaint are true and correct to the best of his knowledge,
information and belief,
t~~hO:di \i - S.oJ!::
Wesley Se , President
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VERIFICATION
Francine Griffiths, President of Center City Bread Shed, deposes and says, subject to the
penalties of42 Pa,C,S,A. Sec. 4101, relating to unsworn falsification to authorities, that the facts
set forth in the foregoing Complaint are true and correct to the best of her knowledge,
information and belief,
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VERIFICATION
Martha Ebersole, t/d/b/a Martha Ebersole's Beauty Salon, deposes and says, subject to
the penalties of 42 Pa.C.s.A. Sec. 4101, relating to unsworn falsification to authorities, that the
facts set forth in the foregoing Complaint are true and correct to the best of her knowledge,
information and belief.
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1\1 a Ebersole
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VERIFICATION
Linda K. Morgan, President of Morgan's Place, Inc" deposes and says, subject to the
penalties of 42 Pa,C,S.A. See, 4101, relating to unsworn falsification to authorities, that the facts
set forth in the foregoing Complaint are true and correct to tPe best of her knowledge,
information and belief.
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VERIFICATION
Harry E. Lowe, owner of Harry's Hot Wings & Things, deposes and says, subject to the
penalties of 42 Pa.C.S.A. Sec. 4101, relating to unsworn falsification to authorities, that the facts
set forth in the foregoing Complaint are true and correct to the best of his knowledge,
information and belief.
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Certificate of Service
I hereby certify that on October 18, 2000, a true and correct copy of the foregoing
Praecipe was served by first class mail, postage prepaid, upon the following:
CIT Group, Inc.
233 N. Michigan Avenue
Suite 1800
Chicago, IL 60601
~~&JiyJhg~
Kay' . Milligan
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Jesse Raymond Ruhl, Esquire
PA. AttyI.D. No. 55798
36 S. Hanover Street
P.O. Box 1319
Carlisle,PA 17013
(717)241-4813
(717) 241-4829 (fax) Attorney forPlai1ltiffs
GENE EDMONDSON t/d/b/a
GBS ART DEPOT, et ai.
: IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs,
: CNIL ACTION - LAW
v.
: NO. 00-6811
CIT GROUP, INC.,
JURY TRIAL DEMANDED
Defendant.
PRAECIPE TO MARK SATISFIED, DISCONTINUED AND ENDED
TO THE PROTHONOTARY:
Kindly mark the above-captioned matter settled, discontinued and ended.
LAW OFFICES OF JESSE RAYMOND RUHL
Dated: February 13, 2001
By:
/
sse Raymond ROOl
PA. AttyI.D. No. 55798
36 S. Hanover Street
P,O, Box 1319
Carlisle, P A 17013
(717) 241-4813
(717) 241-4829 (fax)
Attorney for Plaintiffs
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