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Home My WebLink About99-02336 . WEAVER PRECAST, INC.. Plaintif f : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 99-2336 CIVIL () n . ;.~. TI!J~ :~ ""0 .J to.,; "'~ ; JAMES HUTCHISON f/t/a HUTCH CONSTRUCTION, Defendant ~, ~ r:c, , -I. ., -, /: --I -< ... : ':,,:1 NOTICE OF STAY ',., C~) NOTICE IS HEREBY GIVEN that James W. Hutchison, Jr.. the above named Defendant, has filed a Petition under Chapter 7 of the United States Bankruptcy Code to Case No. 1-00-01457 and as a result ?:._thereof. the above captioned action is stayed until further Order ~ of the United States Bankruptcy Court. The undersigned executes ~his Notice for purposes of giving notice only and the providing of ~hiS Notice is not intended to enter an appearance in the within @ase. CUNNINGHAM & CHERNICOFF, P.C. Date: April 18, 2000 By: /I 0.~~. Hen~ Van Eck, Esquire Attorney I.D. No. 83087 2320 North Second Street P. O. Box 60457 Harrisburg. PA 17106-0457 (717) 238-6570 -, " ',::; q ". ::,., -. PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten IIIld IIllbnitted in "''P 14 ..."te) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Pleae list the within IlIIItter fca: the next ArgIInent Coort. ---------------------------------------------------------------------- CAPTION OF CASE (entire ~ IlUlt be stated in full) :..~ WEAVER PRECAST. INC. (Plaint.i.ff) '...i VB. JAMES HUTCHISON f/t/a HUTCH CONSTRUCTION (Defeulant) No. 2336 Civil 19 --% 97' 1. State matter to be argued (i.e.. plaintiff's mtioo far new trial, defendllnt's datuJ:rer to cat;llaint. etc.): Plaintiff's Petition to Remove Stay 2. Identify counsel who will argue case: (a) far plaintiff: lidlkess: Anthony P. Schimaneck. Esquire & Jerrene Zimmerman. Esq. P.O. Box 4686 Lancaster, PA 17604-4686 (b) far defendant: Address: Paige Macdonald-Matthes, Esquire 2320 North Second Street P.O. Box 60457 Harrisburg, PA 17106-0457 3. I will notify all parties in writing within tw days that this case has been listed far argment. 4. Argurent Court Date~ March 1, 2000 , , ~ Dated: tiff; Jerrene Zimmerman, Esq. . '.... CERTIFICATE OF SERVICE I hereby certify that I am this day serving the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirement ofPa. R.C.P. 440. SERVICE BY FIRST CLASS MAIL ADDRESSED AS FOLLOWS: Paige Macdonald-Matthes, Esquire CUNNINGHAM & CHERNICOF, P.C. 2320 North Second Street P.O. Box 60457 Harrisburg, PA 17106-0457 "j 'j j '1 I . .1 .\ I I I 1 I I I I MORGAN, HALLGREN, CROSSWELL & KANE, P.C. DATED: December 27, 1999 ( By: '- . 'th"on . aneck, Esquire Attorney .0. No. 27769 Jerrene Zimmerman, Esquire Attorney 1.0. No. 59877 Attorneys for Plaintiff P. O. Box 4686 Lancaster, P A 17604-4686 (717) 299-5251 /~\.j , i; ., . '. . , ' . \), '. - .' . .' '- ' JORDAN D. CUNNINGHAM ROBERT E. CIlERNICOFF PAIGE MACOONALD-MAmU;S MARC W. WITZlG HENRY W. VAN ECK CUNNINGHAM & CHERNICOFF. P.C. AlTORNEYS AT LAW 2320 NORTH SECOND STREET 1'.0. BOX 60457 HARRISBURG. I'ENNSYLVANIA 17106-0457 11E1lS1IEYnlJ~110NE 17171 ~)I.2lI1' IllS NO. 2.\.127.135 "AX (7171~ THI'I'1I0NI' 171712J11.h~711 April 20. 2000 Ivo V. Otto, III. Esquire Martson. Deardorff, Williams & Otto P.C. 10 East High Street Carlisle. PA 17013 Re: Weaver Precast. Inc. v. James Hutchison f/t/a Hutch Construction Docket No. 99-2336 civil Term Dear Mr. Otto: Enclosed find a copy of the Notice of Stay which was filed in the Court of Common Pleas, cumberland County on April 19, 2000 ill regard to the above referenced matter. Please be guided accordingly. Very truly yours, CUNNINGHAM & CHERNICOFF, P.C. H~& vr::;c~ ~ /bat Enclosure CERTIFICATE OF SERVICE I. Henry Van Eck, Esquire. hereby certify that on April lB, 2000, a true and correct copy of the foregoing NOTICE OF STAY was served by first-class mail, postage prepaid, on the following: Ivo V. Otto, III, Esquire Martson. Deardorff, Williams & Otto P.C. lO East High Street Carlisle, PA l70l3 ~~~ nEck, Esquire >- <XI is 0; c ~ .. ,- .-) tilr;~ - f~);-:) ~.~ :r: "~ "-~ . ..: ,-- ')~ ., '':';: ~:r;:; c"' J;'~ ".J. -.. .CZ _. ~:.HU ~ ~:.J u.. ~ I.l- e:> ::> c 0 (J -- 211.1 rl~IJin'I\J8JI.s IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW WEAVER PRECAST, INC. v. No. 99-2336 JAMES HUTCHISON fIt/a HUTCH CONSTRUCTION PRAECIPE TO WITHDRAW SUGGESTION OF STAY As the bankruptcy action is closed and the automatic stay provisions of *362 of the United States Bankruptcy Code arc no longer in effect, please withdraw the Suggestion of Stay which was filed on behalfofthe Defendant in the above-captioned action on July 27,1999. CUNNINGHAM & CHERNICOFF, P.C. Dated: ~"" "''''''1 5,2.?DD By~cU.t.e~~-.....'\NLt:t\...a.o Paige Macdonald-Matthes, Esquire Attorney J.D. No. 66266 Attorney for Defendant 232(; i~orth Second Street P.O. Box 60457 Harrisburg, PA 17106-0457 ,F! j ~ C'I.I ~j N ,- .. UJQ - &=:~'5 :r= G'=" < 01 -.... 6~< 3 I.L' c:~ r.:;.;1 ~ if! i:. oCt ~a. -, "- 0 a 0 c WEAVER PRECAST. INC.. Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 99-2336 CIVIL TERM JAMES HUTCHISON f/t/a HUTCH CONSTRUCTION, Defendant NOTICE OF STAY NOTICE IS HEREBY GIVEN that James W. Hutchison, Jr., the above named Defendant, has filed a Petition under Chapter 7 of the United States Bankruptcy Code to Case No. 1-00-01457 and as a result thereof. the above captioned action is stayed until further Order of the United States Bankruptcy Court. The undersigned executes this Notice for purposes of giving notice only and the providing of this Notice is not intended to enter an appearance in the within case. CUNNINGHAM & CHERNICOFF, P.C. Date: April 18, 2000 By: Hen . Van Eck. Esquire Attorney 1.0. No. 83087 2320 North Second Street P. O. Box 60457 Harrisburg, PA 17106-0457 (717) 238-6570 ..- CERTIFICATE OF SERVICE I. Henry Van Eck, Esquire, hereby certify that on April 18, 2000/ a true and correct copy of the foregoing NOTICE OF STAY was served by first-class mail, postage prepaid, on the following: Ivo V. Otto, III, Esquire Martson, Deardorff, Williams & Otto P.C. 10 East High Street Carlisle, PA 17013 By: Henry 0~ nEck, Esqu re IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WEAVER PRECAST, INC. NO. 99-2336 CIVIL v. ~? : . ,......... . . :' H', ' ',--' JAMES HUTCHISON f/t/a HUTCH CONSTRUCTION FEr () '! ?rrlo ) I. j ...l \1 /., :-,.-. RULE 1312.1. The Petition for Appointment of Arbitrators shall be substantially 10 PETITION FOR APPOINTMENT OF ARBITRATORS TO nm HONORABLE, THE lUDGES OF SAID COURT: Anthonv P. Schimaneck. Esauire _. counsel for the plaintifflll~ in the above action (or actions). respectfully represents that: 1. The above-captioned action (or actions) is (are) at issue. 2. The claim of the plaintiff in the action is $ 8 r 5 0 0 . 0 0 The counterclaim of the defendant in the action is n / a * Estimated time for hearing is 1-2 hours The following allomeys are interested in the casc(s) as counselor are otherwise disqualified to sit as arbitrators: Paige MaCdonald-Matthes, Esquire and Anthony P. Schimaneck, Esquire WHEREFORE. your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submilled. Respectfully submitted. MORGAN, HALLGREN, CROSSWELL & KANE'/7;,C/J/ / ORDER OF COURT By: ~~ ,,jJ , ~ Anthony P. Schimaneck, Esquire ANDNOW. --ub..u..~ I . ~_,inconsiderationofthe foregoing petition. . g" ~ (!~ ,,77.JZ. Esq., /(~6.U tfO/V{:d; ~ Esq., and 11/HeI/?ttn'~J ~ "J/hJ_ ,Esq., are appointed arbitrators in the abovec~ionedaction (or actions) as prayed for. rf P.l. , ii/Ii COFrT.-r.. ;;;11:2.7 CC:;,:.:, r,.., ,'~ ,-.'..UNf'( I'b\r,,~:;','"t."::.>,,:,.., . . '--.. -.:.. ,. ,.... C! <) . . P' >. I". - ~~ : ,,' ;}j ~ ...9 '" ~ ~ , Q ., ~ C" " : 3 '. , . .:'j ~ . .... I. ,'."1 -:II , , .' cJ ' . ..' ~ r.J... ~ -l -l W ~ Vl O .. . . . ~ ~ .~" ~~u~;~ u :z a.; . 5, - lJJ . l( 11I- 1.1. -' W:;J 1.1. j,.<, Z 0 III ~ oS~x~.. ..J j..;"'1II ~ <( " 0" J:~~~3 i 8 2 ~ ~ ' ~ ~ o :::E COM1IIbNVI"A'I. TH OF PENNSYLVANIA COURT OF COMMON PLEAS . CUMBERLAND COUNTY JUDICIAL DISTRICT PENN5YL VAN I A NOTICE OF APPEAL FROM DISTRICT ,IUSTlCE JUDGMENT COMMON PLEAS N. 99- J..33" C!. i v: L NOTICE OF APPEAL Notice is given that the i1P1)Ctlanr has fded In the ilhovl!' Court o' Common Picas an appeal from the jUdgment rendered by the District Justlce on the date and in the caSe mentioned below. "'AIIlII. 0.. .....,."......"',. Jarres Hutchison ,_._~ ;;~;~~;G' G. .,"." G., tb::hanicsw.rg lfA" t:16SPf "0011I'" 0.....",......"''''1' Hutch O:mstruction, Inc. 414 S. York Street OAl'l 0.. IUGeU""T IN THI C"'" 0.. ....~M' '" 3/29/99 1/1.'...._" CL"U' NO. ver Precast, Ine. v. Janes Hutchi~ f/t/a Hutch construction 'Pai(.re'~O:1onarcf.:z=BtfOOS-," ~~e C>.cL.q..e~~_--"~\~.~~ CV 19 99-36 L T 19 This block will be signed ONLY when this notation is required under Pa. R.C.P.J.P. No. 10D8B. This Notice of Appeal, when received by the District Justice, will operate as a SUPERSEDEAS to the judgment for possession in (his case. Signature of Prothonotary or Deputy If appellant was Claimant (see Pa. R.C.P.J.P. No. 1001(61 in action before District Justice, he MUST FILE A COMPLAINT within twenty 1201 days aftet filing his NOTICE of APPEAL. PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONL Y when appellant was DEFENDANT (see Pa. R.C.P.J.P. No. 1001(7) in actian before District Justice. IF NOT USED, detach fram copy af notice of appeal to be served upon appelleel. PRAECIPE: To Prothonotary Enter rule upo~e a ve r Pre ca s t, In c. ,appellee(s), to file a complaint in this appeal n /) J /1 I-{'7e of ,ppe/leel,l (Common Pleas No. 7 7 - 1. 13 UJ l. IV I 'within twenty (20) days after service of rule or suffer entry of jUdgment of non pros. RULE: To (~;;;^P \ 1"'f\N.I'>~n...Q~_Jt\A..h.~...A" , Signature of appellant or his attorney or 8!1f1nt Name of appellects) . appelleelsl (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a complaint within 'his time, a JUDGMENT OF NON PROS WI LL BE ENTERED AGAINST YOU. Date: (3) The date of service of this rule if service was by mail is the date of mailing. Lj-/9 ,192..7 AOPC 312.90 COURT FILE TO BE FilED WITH PROTHONOTARY '- COMMONWEAL TH OF PENNSYLVANIA COURT OF COMMON PLEAS CUMRERLAND COUNTY JUDICIAL DISTRICT PENNSYLVANIA I NOTICE OF APPEAL - FIlOM .\ OISTRICT ,IUSTICE JUDGMENT COMMON PLEAS No 99- J..33 {" ~ j v: L NOTICE OF APPEAL Notice is giyon that the apPl!lIant ha\ fdl'il in ftw i1hUVI! COtHt uf Common Pled\ <Ill dl)IJ(~i1t flom tht! judlJl1llHlI ftmdelcd hy the District Justico on the dale and in the casf.' mcntlOlwd helm.... iilii'... 0.. ."'.~I..'" Janes lJut:chison ADO.... 0.. ....".....A"" Hutch o:nstruction, Inc. 4141!l. Vorl: Strc<'t .----l ;.; ;~~;. ..-.,., .0 .., ~l'" ~," 1\'lCh.:miclIl:urrJ '" 1'7lm" 3/29/99 '''.1''_ c.. qt" .1', ,n 'Ieaver PrCC'lst Inc -._"~..r-" '.---.,.....-* ------r-- v. ,TlIlleR liutchi~l" f It/a Hutch tXl'lstruction l~""",.u...'i" A"I.u.!'IIt':f....,._W.l~'-q(~.., ~A",IICt".~.. Bl.CJe . iilO'" CXllU( _ 'dLUJCo:J>. J"~l1..U.L~ - -.. ,,__.......... (~.q..( l-......-,.: \ ",-~ ~,,) -.., ) 'I. ... "",,- :..t..l.:..,j. - I 1:; :)~t.-(.,,<:,_. OAT. 0" 'folD.... T cr....'" NO. CV19B9'3G L T 19 This block will be 'signed ONLY when this notation is rtquired under Pol. R.C,P.J.P. ", !'8~. This NotiCfJ:of ~~eal. when received by the District Justice, will operate as a SUPERSe E 51 the judgment for possession in this case. r If appellant was Claimant lsee Pa. R.C.P.J.P. No. 1001(6) in action before District Justice, he MUST FILE A COMPLAINT within twenty 1201 days after filing his NOTICE of APPEAL. Signature 01 PrarheJnotarv or Deputy PRAECIPE TO ENTER RULE TO FilE COMPLAINT AND RULE TO FilE IThis section of form to be used ONL Y when appellant was DEFENDANT Iscc Pa. R.C.P.J.P. No. 1007171 in action before District Justice. IF NOT USED, detach from copy 01 notice of appeal to be served upon appellee). PRAECIPE: To Prothonotary _ Enter rule upo~e a v e r Pre C 8 8 t , I n c . . appcllee(sl, to file a complaint in this appeal . rI C) f} J /1 ""7' or appel1..I,1 (Common Pleas No. ..., 7 - A~" L; V, I within twenty (20) days after service of rule or suffer entry of judgment of non pros. -~ -........ ~f: ,1'''.L,...oJ.-......ol~ .\"'\.~~ . Si9nature of appellant or his attorney or agent RULE: to , " , Namo of ilppol1oo(s} ~ ~ appellee!sl " .. (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal wlthl.ntwenty,(201 days aft~r the date of service of this rule upon you by personal service or by certified or registered maiL:,' ".,.".h'~'" '.. ,,' . ' . "... . , ; , . , ' ' I .. oj..' :.. . '~ ',;: ' (21 If you do ~o~fiIe a co~~laint within this tima, a JUDGMENT OF NON PROS WILLBE~NTER'ED AGIXiNS1' YOU. .. ~;, :, " t ..~l , (3) T~'C date of service of this rule-if service was by mail is the date of mailing, .11-/9 1917 .' . Date: 'C ~' \'" , I ~ / " \\ r , f~ .ri , .,. " -. COmmon Pleas NO. 99.2336 Civil , i I ~-=-_.. . i '~_t_I"'__ ,....._to,...,."... "ClomliIolo_.. "'1nd40. ~.......... (for.. I ._:::;-Ind_.............oIlN1toonOO......con......."" _fee>: .::..oI:"_to.......oIlho_."...~_,__"" 1. CJ Add_'.AddIMl "... · .="'-"--......--...-- 2. CJ RIItr1clIctOtllvlry ,j I fi .1!IoIlollonRooo/pl"""-Io.........___IndIho_ J' S - ConIUtplll1muterrorl... . : J\\1s16\c.} :f\J~fr;e SLm~~ 4a.2~~9 113 . : 152'1 #\',\\31- ~\)'lC 1~7 D.:::: ~rU1I.,J, ; !tAt.l-blljSo(')()O,s P.-1 OExpIMlMd 01_ f. ' \ "I I ~for__OCOO, : \7\)05 7. ~~ t ' !' i .. 102595-91.B-Ol7S1 i i .~..;". 1 In4'ot 2 for *'dtIonII Mr'o'IcN. r also wfsh to receive the 11 .ComOIoto..... 3, ....... 4.. loIIowIng IIrvfce. (for an I ! .= I":;u. rwrttt Md add,... on the reVlrHI of IhII form 10 !hit we eM flIIum tN. extra fS8): I I -Ahch IhII totm 10 the front of the mailpitoe, at on the bid(" IpaOt doN not 1. 0 Addressee's Address !! .=~R.....R_prRoq_......''''maHpIoco....WIho...IcIe'''''''''', 2. CJ Relbtcled Oellvlry . ti -The Relum Rapt w111how 10 whom the a1t1cle was delfvtrtd and the data 'E. : S doI_ Conou~ poslmaollr lor rle. 1i 'J 3'f'1\"\eAddreoaedto: . 8 <s. rtij Umb:2 7~ ~ · t ~~ Sc..h,rqClI'reC~J Sf,. 4b.ServfceType .-L i II ~ n"...:\f L ~ft b 0 Reglotered p"ertifted ';, : 'U) }. ,lQ 0 Express Moll 0 Insured oS ' J{).\)CQ!i;.W{ R I7ItJO\.J Roc:elptforMerehondlse 0 COO :. i . 7 7. 0 I or 0 Ivory --Z ~ ' ',J3 IJ,- ! 5. Received By: (Prinr NSITI8) 8. Are.. e'l Addrloa (Only If requested ij anc/ 186 pe/d) (: , !l 8. Signature: (Address86 or Agent) ~ X....:1 .!I PS Fonn 3811, Decembe 1994 102595.97.B.()l19 Domestic Return Receipt -. P. . Q9.~ 3::St, . c, vII NOTICE OF JUDGMENTfTRANSCAIPT CIVIL CASE PLAINTIFF: ....w1.,......00A11I mVBR PRBCAST, INC. ., 824 B. MAIN ST. P.O. BOX 759 l!lPHRATA, PA 17522 VS. D"FENDANT: ....., ... ADORns 'JAMBS HtJ'l'CHISON P/T/A BOTCH CON8TR') P.O. BOX 7 KBCHANICSBURO, PA 17055 L Docket No.: ey.0000036'99 Date Flied: 2/16/99 . -COMMONWEALTH OF PENNSYLVANIA COUNTY OF: ctJKBBRLAND Mat o.tl No 09,3,03 DJ__ StrSAN It. DAY ....... 229 MILL STREET, BOX 167 NT. HOLLY SPRING8, PA .J ".......(717) 486'7672 ATTORNEY DBP' PRIVATB I PUGB M. MA'l'THBS, BSQ. 2320 H. SBCOND ST. P.O. BOX 60457 HARRISBURG, PA 17106-0457 17065 .J .. ,. , e THIS IS TO NOTIFY YOU THAT: Judgment: [i] Judgment was entered for: (Name) [i] Judgment was entered against: (Name) P,-1R Pf."TN'I'YPJP WR&V1rD DRlfl"&A'I' TNI"'. JAMRA ~HTAnN plTIA HT1TC'-'1 C'nNATR. I ~ /2q /qq . . in the amount of $ '7 '7nn '7n on: (Date 01 Judgment) (Dale & Time) . D Defendants are jointly and severally liable. D Damages will be assessed on: Amount of Judgment $ 7.605.20 Judgment Cosls $ 95.50 Interest on Judgment $ .00 Attorney Fees $ .00 Total $ 7.700.70 Post Judgment Credits $ Post Judgment Cosls $ D This case dismissed without prejudice. D Amount of Judgment Subjecl to AttachmenVAct 5 of 1996 $ D Levy is stayed for _ days or D generally stayed. ------------ ------------ D Objection to levy has been filed and hearing will be held: Certllled Judgment Total $ I""" TIme: ~ ,.~' l ANV PARTY HAS THE RIGHT TO APPEo!\L WITHIN 30 DAYS (<FlER THE ENTRY OF JUDGMENT BV FILING A NOTICE OF APPEAL WITH THE PROTHON.DTAR:V CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. VOU MUST INCLUDE A COPV OF THIS NOTICE F JUDGMENTITRt\NSCRIPT FORM WITH YOUR NOTICE OF APPEAL. ;;, . ;rLl~ate / I \ . ../ I }~','., ' ,District.Justice ...~ ..... I . ..' . I ~rtifY .'hat this is a tr~a ancj correcl COPY;Of the ,reoo~q.ql t~f,yroceedlngS containing the judgment. ~--)I,(ffatl. \ j. .( /,. .,_J. , District Justice My commission expires first Monday of January, AOPC 315.99 2004 SEAL IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIl, ACTION - LAW WEAVER PRECAST, INC, v. No. 99-2336 CIVIL JAMES HUTCHISON fltla HUTCH CONSTRUCTION NOT ICE You have been sued in Court. If you wish to defend against the claims set forth ill the following pages, you must take action within twenty (20) daya after this Complaint and Notice are served, by entering a wri tten appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you, Vou 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. 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, Cumberland Bar Association Attorney Referral Service Two Liberty Avenue Carlisle, PA 17013 (717) 249-3166 or 1-800-990-9108 MORGAN, HALLGREN, CROSSWELL & KANE, P.C. By: ~;?U. Anthony P. Schimaneck, Esquire Attorney for Plaintiff Attorney I.D. No. 27769 said items being received by the said Defendant and his agents, representatives or employees. 6. Defendant accepted said items and there is a total balance due, including late payment or finance charges, but deducting credits and payments, as of November 3D, 1998 of $8,356.26, which was the Plaintiff's price for supplying said items and service and which was the fair, reasonable and market price for the items and service supplied and, in addition, was the price Defendant agreed to pay, as more fully set forth on Plaintiff's most recent invoice, which is the final invoice which has not been paid in full, a true and correct copy of which is attached hereto, made a part hereof and marked Exhibit "A". 7. At various times, Plaintiff has requested payment in the amount of $8,356.26 from Defendant but said Defendant has not made any payment, leaving the balance due and payable as of November 30, 1998, of $8,356,26. 8, Defendant accepted the items supplied but has neglected and still neglects to pay for the balance due of $8,356,26 or any part thereof. 9. Plaintiff has conformed and complied with all conditions required of it under its agreement with the Defendant and a balance of $8,356.26 is still due and owing to Plaintiff. .'.:j "j CERTIFICATE OF SERVICE I hereby certify that I am this day serving the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirement of Pa. R.C.P. 440. SERVICE BY FIRST CLASS MAIL ADDRESSED AS FOLLOWS: Paige Macdonald-Matthes, Esquire CUNNINGHAM & CHERNICOFF, P.C, 2320 North Second Street P.O. Box 60457 Harrisburg, PA 17106-0457 Attorney for Defendant MORGAN, HALLGREN, CROSSWELL & KANE, P,C. Date: .J -/d-'l 7 ~~ Anthony p, Schimaneck, Esquire Attorney for Plaintiff Attorney I.D. No, 27769 700 North Duke Street P. O. Box 4686 Lancaster, PA 17604-4686 (717) 299-5251 By: ~u ,UIl-,'~' '''-''''. "........",0 EXhibit A ~'J <- (.~ .,.. r:: ;... lq' ~ . .... l... '-' L ,., : 1:_ c; ~ " .. , , .. :J ... 1I ~ .. ~ o III "" ~ 0:: . ~ ~ . ~UU~"~ IIJ i ~ w ~,.. u w ~ II( III _ ~ 0:: W S.., :: II. t) Z ~ jI(" ~ :J ~ ~ 15 ~ 3i~~~~ ;i ~2~ ~ ~ o ::E Defendant has been involved in a business known as "Hutch Construction" since December 30, 1997. 4. Denied, It is denied that "from 1992 through April 29, 1998, Plaintiff contracted with the Defendant at the Defendant's request, to supply products, merchandise and service in the nature of foundations and walls to said Defendant". By way of further reply, after December 30, 1997 any contract that Plaintiff may have had would have been with Hutch Construction, Inc., a duly formed Pennsylvania business corporation and not with James Hut"hison, Individually or t/d/b/a Hutch Construction. 5. Denied. It is denied that there was any agreement between Defendant and Plaintiffs between December 30, 1997 and April 29, 1998. By way of further reply, any contract Plaintiff entered into after December 30, 1997 would have been entered into with Hutch Construction, Inc., a duly formed Pennsylvania business corporation. 6. Denied. It is denied that "Defendant accepted said items." It is further denied that "there is a total balance due, including late payment or finance charges as of November 3 that this Honorable C~urt to enter judgment in his favor and against the Plaintiff, dismiss the Plaintiff's Complaint with prejudice and further award Defendant all such other relief as is proper and just, NEW MATTER 10. The answers set forth in Paragraph 1-9 are incorporated herein by reference as if more fully set forth at length. 11, On or about December 31, 1997, Hutch Construction, Inc., filed Articles of Incorporation with the Pennsylvania Corporation Bureau which caused a corporation to be formed known as "Hutch Construction, Inc". 12. After December 31, 1997, any purchase orders placed with Plaintiff were placed by Hutch Construction, Inc" as is evidenced by the purch~se orders which are attached hereto and are collectively marked as Exhibit "An, 13. Plaintiff knew or should of known that Hutch Construction, Inc. was a corporation because all 5 ;, ~ ',~ ~f, communications from Hutch Construction, Inc, were sent on 'I; }~ is attached hereto and marked as Exhibit "B". ;: ~ ~ ~~. corporation letterhead, A copy of the corporation letterhead ,~~ 14, By virtue of the incorporation of Hutch "'" ~ ,('" ;1t j '~~~ Construction, Inc. , Defendant, James Hutchison, was not personally responsible for any obligations incurred by Hutch t , Construction, Inc. '. " .<' 15. Defendant James Hutchison, Indi vidually, did not execute any credit application or personal guarantees on behalf of Hutch Construction, Inc. ~ ~ ~; ~'. o. z, .; ,jj 16. Notwithstanding the prior notification to Plaintiff ':fl concerning the incorporation of Hutch Construction, Inc., . " Plaintiff continued to erroneously request payment from Defendant James Hutchison for alleged obligations incurred by . ,:; , Hutch Construction, Inc. ;J 17. As a matter of law, an individual cannot do business as a corporation. '; ,>, 6 '1 " WHEREFORE, Defendant, James Hutchison, respectfully ,* ;~ 1 requests that this Honorable Court enter judgment in his favor and against the Plaintiff and dismiss the Plaintiff's Complaint with prejudice, and further award Defendant all such other relief as is proper and just including reasonable counsel fees and costs. i:) ;it -', ::::. ~} , :~ " (: . r Respectfully submitted, CUNNINGHAM & CHERNICOFF, P. C. {" Date: June 2. 1999 BY:~'-9" _.~~~~~.~ Paige Macdonald-Matthes, Esquire I.D. #66266 2320 North Second Street P.O. Box 60457 Harrisburg, PA 17106-0457 (717) 238-6570 (Attorneys for Defendants) msm\docs\answers\hutchcon.10 7 VERIFICATION I, James Hutchison, President of Hutch Construction, Inc., verify that the statements made in the foregoing Answer and New Matter are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made sUbject to the penalties of unsworn falsification to authorities. Hutchison, President Construction, Inc. Date: FAX COVER SHEET DATE: ~ 111/ CiS TO: WWve.r PI'€..(! WJ.J CRel FAX *: 733- Q<1Sq FROM: 6t..LM..Y\ FAX *: (717) - 697-8704 # c:2 PAGES SENT ( INCLUDING COVER SHEET) MESSAGE: Dt'r<ec*'lon~ ~ ~o\)..(\5 306 oj- ~ R'lck'\,\gs 414 South Street Rear P.O. BOJC 7 Jfec~. PA, 17055 Phon. II 717-697-6607 "'x , 717-697-8704 FAX COVER SHEET I~ I' I Ol/':l /~ 9- I' DATE: I TO: (.) Q.ve ~ase. FAX *: tl3:J -l../t)b~ FROM: ;(/,1... oJ .;-~t4 FAX *: (717) - 697-8704 # / PAGES SENT ( INCLUDING COVER SHEET) MESSAGE: (!xueMen t LA) 'I\do l.1l 12. SItU ele II~ ffl/'l IZ-/ 0 ~ / {, ~ x S /6" I/t../ /1 /)J..A hnc/( Jnl.t:'/J +0 @ ~~ ~/&Vahoy'j I / / II , If l3/J.,SernNl T Cioo r - (&)-'1 X b S' No 5-k-05 'Iv SUI') rDDrV\ / !-louSE , !2 /;"v E"t2S E1J _ . P LfYI tJ 414 South York street, Rear P.O. Box 7, MechanicsbuTg, PA. 17055 Phone' 717-697.6607 Fax . 717-697.8704 .;. <I , :~ ./ ,', .< " FAX COVER SHEET DATE: l./ / q /ct9 TO: Oa.~ ~~...e.. FAX *: 93;;'. (/oos FROM: Ie,,,,, FAX *: (717) - 697-8704 # / PAGES SENT G...r I 733 -o9s1 ( INCLUDING COVER SHEET). MESSAGE: Add. lel1t,/ JecJ...je ~ W,i-)j tv~..lj as t?P.r /)/0 /l , 3/" do L.{)t1. /4r, If ff tLUJ -/r-fvU>, lei- /Yl(, Kt1 i!l UJ / ~ 414 South York Sb..et, Rear P.O. BGIC 7, Jfec~, PA, J7055 Phon. * 717.697.6607 "ax 1# 717.697-8704 t. :t ,;'t ,~,f!' " f j:, E X H I B I or "BII UTCH NSTRUCTION~ Distitlctivt C'i1jtsm.,nsilip . . . Ont Home ar.a Time CERTIFICATE OF SERVICE I', :r~ I~ Ii!} Lj '.I Ii: " .. If)f l::~ :",~ Li'l' \:.,., .-,}i' ;,::~'{ ::11( 1'",:;'.'1; i'i' ,..., ~~;:;~i ',\" I, Paige Macdonald-Matthes, Esquire, do hereby certify that a true and correct copy of the Answer to Complaint, together with New Matter in the above-captioned matter was placed in the United States Mail, certified mail, postage prepaid in Harrisburg, Pennsylvania on June 2, 1999, on the following: .\,< ":.:::t. ":~f' .,,1 ~i1 r.~~: Anthony P. Schimaneck, Esquire P,O. Box 4686 Lancaster, PA 17604-4686 (Attorneys for Plaintiff) f~ ;~: (:;~ 1~' i.1: "it " ";'?'. CUNNINGHAM & CHERNICOFF, P.C. ~;'~ ":r ,'i I.'; '~ :.~ ,"'1 " ':, , C_;j .' ~ -, .t: "~ Respectfully submitted, Date: June 2. 1999 By: ~~"\!' ~,"",-~)o,;~i.>.-~,,"1 Paige Macdonald-Matthes, Esquire I. D. #66266 2320 North Second Street P.O. Box 60457 Harrisburg, PA 17106-0457 (717) 238-6570 (Attorneys for Defendant) ~; " d .~: " " :; .;:: :~ " 'J .j' 8 i;; N r:: C'\i ~. N ~;:; ,., ...~ ~.f' ~lJo,. ?r't, () .; ri., ~~ \ 1'-, <.... . -.1 rl~I--~ r."1 .~ j 2;~,~ M '- :..'C'> 1.1...J- I ., OC~J - ,.! .J ~j UI:J r.-, ..., f.,'!C.L.. U- n> 'j U U' a . , , >. c. " u t; " ~ ~ " U '0 " '" " :l ::: . "''2 " 0 ~ '-' o e -.... .. 0 :.2-0 - " ~~ ~ '" B .: >..~ ~ ~ " 0 t~ .c _ -.... o ~ oS ~ E .9 ;;: .. (j $! c.: ;::: If :( oWz !:!~~ S!Ul~ WCUl :czz tJoz oll1rl~ ~~ci' :cza: Clo:! :!!:!:Ifll z"'- z a: :! a: tJ :I! , ,i F::' ... t:. .,... 0 , -- t~ , i.:~ "" L'_: LJI~' " ::'..: ~:i ;% ,-) -;]: ,) .-" i,i,- \ ::. ~~ ;j .-. ..! :::i ,- ".. r~ L' ,... lfl ('oJ 1 j.: "..1, i~:.~ ~..: L~: '. --. .;'j , LI , [J.. :'~ :.1... <'" ", '-~ "J' :5 .j.j ..~ Ii ., .- 1ii ;~ ~ . .~ 'J .fi f~ ~l if; .~ ~ t! t.i 'k II " ,. :\' .) ", :J .~ , y li ~f ~~ '. 31' ,1; "'1 11 ~i :;1 i ~i ~~ .$ .1'.; li" ;; (,~' j,; ;~ , '3 .) l ;}' i 7, The Bankruptcy action for lhe corporation docs nol allow or requirc this action ,.,' '~ " against la:ncs Hutchison. as an individual. to bc stayed. 8. Plaintiff requests thnt the stay be removed to allow Plaintiff to proceed in ?; 9. The concurrence of opposing counsel, Paige Macdonald-Matthes. has bcen soughl , .~ !t (.),," .~: :~ " t~:'; .,X liligating lhe matter. in this Petition. WHEREFORE, Plaintiffrcspectfully requests that the slay in this action be removed. ~. ,','.? I;,) ;.~. MORGAN, HALLGREN, CROSSWELL & KANE, P.C. Jj .. ,J... ;1: .il" ---~ B' ') ~-- Y"~K h' ~~P,-Sc-h~> k E . ~_---'-"nt 0 '. Imanec, squire Attorney I.D. No. 27769 lerrene Zimmennan. Esquire Attorney I.D. No. 59877 Attorneys for Plaintiff P.O. Box 4686 Lancaster, PA 17604-4686 (717) 299-5251 2 Exhibit A a"......,.... .._.,> (j) :j ;.~' '~.' ,. I ~ ."~ \f, '.,;;; :(~~1 ~4 .;';\ :~, .,,' "'.~' ~j i;f!) .." >~ , ~. .5 {i .~'.' ~.~ } ~ ,~; "J'L '}~ IC ';;, ,,;{ ;::- ~:~ .;~ .,~ ;" .',' o . ~ 'J " , 1-1 ~~' .-~ /, ~~: " f J. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW ;, WEAVER PRECAST, INC. v. No. 99-2336 CIVIL 1;' JAMES HUTCHISON f/t/a HUTCH CONSTRUCTION -. NOTICE You have been sued in Court. If you wish to defend agai~st . 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. ;,-. 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. Cumberland Bar Association Attorney Referral Service Two Liberty Avenue Carlisle, PA 17013 (717) 249-3166 or 1-800-990-9108 MORGAN, HALLGREN, CROSSWELL & KANE, P.C. By: IOrJ.- tU- Anthony P. Schimaneck, Esquire Attorney for Plaintiff Attorney I.D. No. 27769 " , "',' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIl. ACTION - LAW t,~ WEAVER PRECAST, INC. ,~ .'t v. No. 99-2336 CIVIL JAMES HUTCHISON f/t/a HUTCH CONSTRUCTION ~ > ;', COMPLAIN'!' 1. Plaintiff is Weaver Precast Inc., a division of Charles W. Weaver, Inc., a Pennsylvania corporation, with a principal place of business or office located at 824 East Main Street, .:, \;, Ephrata, Lancaster County, Pennsylvania 17522. 2. Defendant James Hutchison f/t/a Hutch Construction is an \': "j" if .. ,,, ':>.' adult individual with a residence or place of business located at P.O. Box 7, 4141 South York Street, Mechanicsburg, Pennsylvania 17055. 3. Defendant is or was involved in a business known as Hutch Construction. 4. From 1992 through April 29, 1998, Plaintiff contracted with the Defendant at the Defendant's request, to supply products, merchandise and service in the nature of foundations and walls to the said Defendant. 5. Pursuant to the agreement, said products, merchandise and service were furnished by Plaintiff, at the request and upon order of the Defendant and his agents, representatives and employees during the time period 1992 through April 29, 1998, all said items being received by the said Defendant and his agents, representatives or employees. 6. Defendant accepted said items and there is a total balance due, including late payment or finance charges, but deducting credits and payments, as of November 30, 1998 of $8,356.26, which was the Plaintiff's price for supplying said items and service and which was the fair, reasonable and market price for the items and service supplied and, in addition, was the price Defendant agreed to pay, as more fully set forth on Plaintiff's most recent invoice, which is the final invoice which has not been paid in full, a true and correct copy of which is attached hereto, made a part hereof and marked Exhibit -A.. 7. At various times, Plaintiff has requested payment in the amount of $8,356.26 from Defendant but said Defendant has not made any payment, leaving the balance due and payable as of November 30, 1998, of $8,356.26. 8. Defendant accepted the items supplied but has neglected and still neglects to pay for the balance due of $8,356.26 or any part thereof. 9. Plaintiff has conformed and complied with all conditions required of it under its agreement with the Defendant and a balance of $8,356.26 is still due and owing to Plaintiff, CBRTIFICATB OF SERVICB lc. r.." I':; -,' I I hereby certify that I am this day serving the foregoing Paige Macdonald-Matthes, Esquire CUNNINGHAM & CHERNICOFF, P.C. 2320 North Second Street P.O. Box 60457 Harrisburg, PA 17106-0457 Attorney for Defendant ~:,j r" -" f";,j,' l1."i' ......; I' f.' t--;;, I:; I.. L. .....:..." F document upon the person(a) and in the manner indicated below, which service satisfies the requirement of Pa. R.C.P. 440. SERVICE BY FIRST CLASS MAIL ADDRESSED AS FOLLOWS: '0; MORGAN, HALLGREN, CROSSWELL & KANE, P.C. Date: .) -/d-"l7 By: ~~ Anthony P. Schimaneck, Esquire Attorney for Plaintiff Attorney I.D. No. 27769 700 North Duke Street P. O. Box 4686 Lancaster, PA 17604-4686 (717) 299-5251 n ';,1 .il , ., ...; T1TT..8'S9 '..2 ~.~....~ . ~;"'l ....~::L OICE;~: I ";"{', .::i!;t~~O..'li.. ":::. II ".' !. I -"... .... ~ i I ! "AR-2S-9' 18128 A" CHARLE8 W WEAYER IHC 'rlm".~Wu "':'!~. . .~ a ',,''', ~ \.....".~~~~ ~ . .... \:t>....1j' 't':., ,.",,:, '. 0' '~I' ..' ,.. . ..."": ........ ,." " " . <IV" ,. . ". . ,.., . , . po\: 17m-0'76ii'. .... ., ~'. . .:':. .,' , PBC?~rl'1).1I~:~B~.rAX:(7~1)78~~i .. . . ',.. "'., '';' . - ,0 '( 'lI~J" , ", .~ ~~.. .' ,:. . .- ... ";.-.1.1 ., ..,. . J 9124 . , ,.; " "'.' ., J IIUTCH CONSTItUenO'N ..oJ\,: 0 Il^V~ srnSf ~ : . I . . r 0 bOX 7 "lIeHIIHH~(lUR'8 PA 17lll>r. . :.' '. N T 1) 0 1.\,,11' 1..11 I III\J''''-~ 'NlJ "-I (1.J:.IOI\1rR rJt) I r''',r.llrJl 'tW.l~ : I }'.;I ':'C' ",.1 . . fI.4/I'P/PI J880 HUTCON un Sll QUMTITY , tlN)1 PlllCIt EXTrNDED PRIce o I S eRr P T r 0 N ." .. ;,,&0 SU~'RIOR WAllS - SHRtU~ P^ S8239/ YOUNG/ INS 4/22/98 aUllDfR DISCOUNTS -'SHRtWS PA TOTAL ^HOU"T OU~ TNrs INVOICE 11.U8.00 11228.000' 1122.eeOI 1,11'- .1,l11;80' 11.105. ~t1 /5/,!l8 /oa5!D,1e ~)o<<) ~ -4 n~,1el.- I.'ft,. ,,~ ~ 1qql,~3 ilq,!~ - 8/11, 10 ;..~ , 8&3d.11 :. l'a.~qq . .",. . :. a~~:~~ , ~~,~'" sooc. oc.> iruw..ril S.31.Q8 Pel 00 accol.lid. 1o~/b-q8 CJ:::.l~~ I . .. ~... ',i';; ~ Lc.'~'9S . .. .... . J ~ ~.~\.qa , ~ C\-30~qc9 ~1'RDi IO..3I-Qe\ ~ 0':' . .'.. i' .' . ......~ ." ~ . ~ il-30.qg:.'.~~ '. " j.... .. :~~.ii . vtr6 ~ t.b'Mo..ieh ~tcrc\~ " . ~ eROSS , lG, 116:. 2e " ../.... EX.ri~lo~t' " ' . /. '. .'.;1'. .RH II I N ^ G.E.:;; "':/ . .lAX 0",; ~" ..::~~.H..~.~OUN:r , ." .lI.,.,:;..>. ~:;,: 'I.. ,lie'':;. .' 1~,18G.2e. ~. ;","~'" . ~",,'.~!fr... ,...~;o:';",.l.~.''t.Ifl:l,;i4... .. ".:.',' ,l.1Ii(Ib....' ;".., . . . ., CERTIFICATE OF SERVICE I, Henry Van Eck, Esquire, hereby certify that on April 18, 2000, a true and correct copy of the foregoing NOTICE OF STAY was served by first-class mail, postage prepaid, on the following: Ivo V. Otto, III, Esquire Martson, Deardorff, Williams & Otto p.e, 10 East High Street Carlisle, PA 17013 tu,~~ nEck, Esquire ) I ,:',) C' to: c.; :-_1 >i d ~ c: ~ u: .. ...l;j:$ OwZ ~ l!:Ul ~ II: >- WCUl :Z:ZZ UOZ olIlil~ ::E Ul ,'; <l . W :z:ZII: Clo:! i!:!lllll !l!C'olji: :! II: U ~ ,I F::' .. t:. 'TO '- u '. ,., '" " u U ... - - " u '0 " '" ... " ::: ~'E ... 0 .., u o e -.... '" 0 :E-o - ... ~a t:c; ~ .: >..2.0 .., - ... 0 - " ~-s -.... o ~ oS ,., " " ~ o. ~ . -, . Defendant believes and therefore avers that any attempt by Plaintiff to pursue this matter, absent obtaining relief from automatic stay from the United States Bankruptcy Court, constitutes a violation of ~362 of the United States Bankruptcy Code, for which sanctions can be imposed, 8. Admitted in part and denied in part, It is admitted that Plaintiff requested the stay be removed to allow Plaintiff to proceed in litigating the matter. It is denied that said request should be granted. 9, Admitted in part and denied in part. It is admitted that the concurrence of Defendant's counsel has been sought in this Petition. It is denied that said concurrence was given by Defense counsel. 3 WHEREFORE, Defendant respectfully requests that this Honorable Court deny Plaintiff's petition to Remove Stay, and further award Defendant all such other relief as is proper and just. Respectfully submitted, CUNNINGHAM & CHERNICOFF, P,C. Date: Wi,,,~'\,<,h'v' ~(,.\r~',!\ By::\'U'l"o{, (y\'\'l>\.,{',"~'';).l','ft'l:l ho.') Paige Macdonald-Matthes, Esquire LD. #66266 2320 North Second Street P.O. Box 60457 Harrisburg, PA 17106-0457 (717) 238-6570 (Attorneys for Defendant) 4 identity between the debtor and the third-party defendant that the debtor may be said to be the real party in interest. ~ Courts have also extended the stay to nondebtor third parties where the co"=-.. (" .-: !s ~~z~~~!~! t~ ~~~ ~~=~:~'s ~!f?~~s e! r~~~~~~iz!tion. . Ii"':;' . . .., . . ... :;',.1.. .:;.,1:C: ~~/:" ~;~, :':.::'..:.-:-!.!:. :::~ :..:,;:;::.....?: party, is significantly involved in every aspect of this case. Docu-Test is a party to plaintiffs" claims and to Count I of NHSI's First Amended Counterclaim and Counts VI, VIII, IX, and X of NMSI's Second Amended Counterclaim. 1 Moreover, the defending parties in the remaining counts of the counterclaims are either controlling officers of Docu-Test or under common control with Docu-Test. Thus, Docu-Test is inextricably interwoven with all aspects of this case and the court concludes that these are sufficiently unusual circumstances to warrant staying this case in its entirety. 1 Counts I and II of NMSI's First Amended Counterclaim and Counts III though X of NMSI's Second Amended counterclaim are still pending. 2 if:. 1sL. ~ :- AND NOW, TKBRBrORB, I't IS HBRBBY ORDBJUm THAT Plaintiffs' motion for a continuance is ORANTID, al This case is stayed until further order of court, bl The deadlines for filing motions in limine and '. , .. . - - !i;.:.~t::;,:.a- r.",~r.lo:-al~r:.~~s CI::.!: st:a:;o::.::e:.....; c~ ":::':'9 cas~ ;,S =e::'ll;-/!'.: ::=~ ti:~ A;::": ::::; . . .. '::':~.:. .:.:'S:i dl The pretrial conference currently scheduled for Monday March 31, 1997 is .cancelled. Dated: March ii, 1997. 3 '. , Page 3 1ST CASE of Level I ponied in FULL formal. LAMAR A. MCCARTNEY, Appellant v. INTEGRA NATIONAL BANK NORrH, Successor to McDC1NELL NATIONAL BANK: GARY 1. OAERrNER, U.S. TRUSTEE, Appellee No, 96-3023 UNITED STATES COURI' OF APPEALS FOR THE THIRD CIRCUIT 1997 U,S, App. LEXIS 2199 October 24, 1996, Arllled Febnwy II, 1997, OplalOD Flied PRlOR mSIORY: ('IJ ON APPEAL FROM TIm UNITED STATES DISTRICT COURl' FOR TIm WES'rEa..... DISTRICT OP PENNSYLVANIA. (D.c. No. 94-cv-0(984), DISPOSmON: Alllrmed. COUNSEL: Dooald R. Ca1aIuo (Argued), CaIaIaro, Corbett a.ad Bower, 1105 Onm Bulldiog, Pittsburgh, Pa. 15219. Coumell'or Appe11ant. P. Raymood Bartholomew (Argued), 701 North HermilageRoad. Hermitlge, fa. 16148, Coume1 for Appellee Intqra Nadooal Bank, Sucessor to McDowell Natiooal Bank. WIlliam F. PiDco. 764 Park Drive. P.Q Box 598, MeadviUe. PI. 16335, ColIIISe! for Chapter 7 TIustec, For McCaIUIey. JUDGES: BEFORE: STAPLB'ION a.ad NYGAARD, CIRCUIT 1UDOES AND MAZZONE, Districtludge, · STAPLETON, 1., coDCUlring. · The Hooorable A, David Mazzooe, Sealor District ludge for lhe DistrictofMassacl1usetts sitting by des- igoatioD. OPINIONBY: Nygaard OPINION: Nygwd, Cilcuitludge: The dlstrict coun affumcd a bankruptcy court's order deDying a motion Cor summary judgment on an objec- tiOD debtor-appellant Lamar McCartJlCy filed to Integra Narlooal Bank's plOOf of claim. McC=y arllles on appeal thatlhe bankruptcy court emd by DOt dischargiDg lhe debt be owes to Integra, \\I: will affina. I, The facts are II!Idlsputed, On Septeaiber 26. 1989. Integra loaned $ 80,000 ("2] to Lamar's Reslaura.at &. Lounge, Inc., which was S\W'UIICOd by the SmaIl Business AdmlnistratiOD, As security for lhe 1oaD, Lamar's granted Integra a first morlgage on Lamar's corporate property, McCamley S\W'UIICOd the 10an to Lamar's by granting Integra a sec:ood mortgage lien on Ia.ad owned by him Indivldual1y. In May 1992, McCartney filed a volunrary pclition UI)o der Chapter 13 of lhe Bankruptcy Code. He then filed a motion to sell Lamar's corporate property, At Ihe cODCluslon of lhe sale hearing, McCaIUIey's .A""""''''' Plan for Reorganization was adopted as an Interim PIaD, pending a StahlS RpOrt. The parties a.ad the court agreed at the sale hearina that Intesra, ICliDg wilh Ihe SBA. would put Lamar's corporate plOpcl!:y Ihroush . sherift's sale to cIelermiDe what deficiency. if plY, McCartney. as guarantor of Lamar's loan. owed to Integra. Fearing that lhe sherift's sale would Dot occur until after lhe bar date in McCartney's baDlcruptcy proceed- 'iDg. Integra liIed Proof of Claim No. 6 in lhe amount of$ 38.564.66 against McCartney's Individual property pledged as collateral for Lamar's loan, The stale court subsequeDtly sold Lamar's corporate property. Integra purchased Lamar's corporate [OJ] property at the sale for costs a.ad wes, Integra lhen tesOld lhe property and agreed to modify ilS proof of claim to show a deficiency of $ 29,638.14 plus interest and attorney's fees. Almost leD months later, McCartnty liIad an objec- tion to IDlegra's proof of claim, usetting that Integra's claim on Lamar's underlying debt was satisfied as a 1997 U.S. App. LBXIS 2199."3 Page 4 mailer of law because 10legra failed 10 file a pelicioo 10 fi~ lbe fair markel value of lbe property wilhio $i~ months of the sherifrs sale as required under the Peonsylvanla Deficiency Judgmeot Act, 42 Pa.C.S.A. 18103. Both panies filed cross.mocioDS for summary judgment. whicb lbe bankruplCY coun denied. 01 0100 April 12. 1994. the baolcruptcy court beud argumeot 00 the valualioo of Lamar's property sold allbe sherifrs sale. 00 May 3, 1994. the court de. lermined that the value of the Lamar's property was S 20,000 and direclCd lotegra to recalculate ils defi. cleocy claim based on lhis value. On Iuly 20, 1994, lbe baolcruprcy eoun convened the DeblOr's Chapter 13 case to a Chapler 7 case. Sioce then, the Chapter 7 TNStee bas sold some of McCartney's other prop- erty and applied the oct proceeds 10 the debt owed 10 lotegra. As a result. il appears that the balance due Iotegra bas been reduced to $ 4,379.88 plus interest and additional anorney's fees. ('4) II. 00 appeal, McCartney asserts that the bankruptcy coun erred by coocluding that the automatic stay pro- visioo of the Banlcruprcy Code, 11 U.S. C. i 362, pre- cluded Integra from complying with the requirements of lbe DIA. More specifically. McCartney maintains that lbe automatic stay applies ooly 10 acdoDS commenced against McCartney himself. and therefore, the stay 1m. poStd in his banlcruprcy did not pR:vent Integra from Steldng a deficiency judgment against Lamar's within lbe lime permitted under the DIA, Since Integra l3iled 10 51e a petition in State court 10 fix the fair market value of Lamar's corporate property within six months of the sheriffs sale, McCa.rmcy argues, Integra's cl2imagalost Lamar's is deemed released and satisfied as a matter of law. As a consequence. McCartney cooteods that he, as guarantor, is also discharged from any deficiency re- mainiog on Integra's loan to Lamar's. Thus, McCartney concludes, Proof of Claim No.6 liIed by Integra in his baokruplCY sbould be stricken. m. Under Pennsylvania law, every judgment credilOr who forces real estale to be sold in an execution sale must comply with the DIA to protect its claim to any unpaid balance remaining ['5] after the sale. 42 Pa.C.S.A. i 8103. Under the DIA, the judgmeill creditor bas six months after the deblor's collateral is sold in whicb to pelition the coun to fix the fair market value of the real property. 42 Pa.C.S.A. i 5522(b). Failure to file a pelicion within lhis lime period "creatcs an irrebuttable presumplioo that the credilor was paid in full io kind. " Ib/ley Trust Co. 01 Palmyra v. Lap/ISley. JJ91b, Super. 177, 488 A.2d 608, 611 (Pa. Super. Ct. 1985). Thls presumptioo serves 10 discharge all panies either direcUy or indirecdy liable 10 the judgment creditor for pay. menl of the debt, includiog guaraDlors. 42 ?a.C.S,A. I 8l03(d); see also ComnuJnwealth BaNe and Trust Co, v. Hemsley, J95 lb. Super. 447, 577 A.2d 627, 631 (pa. Super. Cr.). alloc. denied, 58J A.2d 793 (lb. 1990). Significantly, to comply with the requirements of the DJA, the judgment credilor must either (I) name In the pedtion, or (2) sive nodce 10, any "debtor, obligor, auu. anlOr, mortgagor, and any other person dUectly or 1ndI. recUy liable 10 the judgment cmlicor for the paymcDt of the debt," 42 Pa.C.S.A. f SI03(b). Default on thb no- dce requirement discharges all personalliabiUly to the judgment cR:ditor for parties ocither ['6] served with nodce nor named in the petidon, Id. It is undispured thaI Inlesra bas never filed a petilion in stale coun to fix the fair market value of Lamar's property sold at the sheriffs sale. Under normal cir. cumscances, failiog 10 file a pedtion would clischarse whatever R:maining debt Lamar's owed 10 Integra. MOR:over. Integra's failure to meet the statutory reo quirements of the DIA would also normaUy clischarse McCartney's guarantee of Lamar's debt because, IS a matter of law, theR: is no underlying debt owing CO Integra. This case, bowever, does not prescnt a normal situation wbere the DIA can be applied by i1s literal terms. As the bankruprcy coun rightly noled, when McCartney filed for banlcruprcy, the automatic stay provision of II U.S.C, I 362(a) was lrigsered and effectively pre. cluded Integra from State coun Il:tiODS of any type against McCartney. Cnnsequently, McCartney cannot use Integra's l3ilure 10 comply with the DIA CO avoid the proof of claim Integra filed against him. Section 362(a) of lbe Code operates to stay ... (I) the commeocement or cootinuation, iocludingthe issuance or employment of process, of ajudicial, admin. istrative, or ['7] other action or proceeding against the debtor that was or could bave been commenced before the commencement of the case under lhis tiUe. or 10 reo cover a claim against we debcor that arose before the cnmmencement of the case under lhis title. , . , II V.S.C. iJ62(a)(1)(1996).Theautoltl!ldcstayse~cs several purposes. The stay gives a deblor a breathing spell from creditors by stopping all collection effortS 1997 U.S. App. ':'.;XIS 2199. '7 Page S and all forecloSUlc aclions. Marin'me Elec. Co" Inc. v. Unlled Jersey Balik. 9S9 F.2d J/94. 1204 (3d Clr. 1~91) (citation omilled). In chis respecl. the Stay per. lIULl the deblor to Illempl a repayment orreorganizarion plan; or it simply relieves the debtor of the fi.oancial pressures that drove him into banlauptcy. Id. 01/204. The Stay also prolccLl creditors by prevenling panicu- lar creditors from ming unilaterally to obtain payment from a deblor 10 the delriment of other credilors. Id, (citation omiued). , Although the scope of the autnmatic Stay is broad, the clear language of section 362(a) stays actions only against a 'debtot' Id. (citing Assocladon Of SI, Croix Condominium O'Mren v. St. Croix Hottl Corp., 682 F.2d 446. 448 (3d Clr. 1982)). (.8) M a coasequeace. 'il is universally aclcnowledged that an automatic stay of proceedings accorded by f 362 may not be invoked by entities such as sureties. guannlors, cCHlbligors, or others with a similar legal or f2ccuaJ nexus to the. . . deblor." 9S9 F.2d 1194 at 120S (quoting Lynde v. Jolw.Manvil~ Sola Corp" 710 F.2d 1194. 1196-97 (61h Clr. 198J)); see also United Slates v. Dos Cab= Corp., 99S F.2d 1~6, 1491.93 (9th Cir. 1993) (hold- ing that Stay does not preclude government from pursu- ing deficiency judgment against nondeblor cosigaors of promissory note); Croydm Assodates v. AI~co. Tru:.. 969 F.2d 67S, 677 (8th Cir. 1992) (refusing to extend stay to claims agaiost solvent codefendants), cert. de- nied sub nom, Harry and Jeanette v.einberg Rlundation, Tnc. v. Croydtll A.ssociates. S07 U.S. 908, 122 L, Ed, 2d 6S0. 113 S. Ct. 12S/ (1993); Credit Alliance Corp. v. William!, 8S1 F.2d 119. 121-22 (4th Cir. 1988) (en- fOICing a default judgment entered againsl a aoooeblor guannlor of a DOle during the pendency of the corpo- rate obligor's banJaup~y). As Doe coun bas reasoned, a primary rationale for refusing 10 extend the aulOlllalic stay 10 nonbanlaupt third parties is 10 insure thai credi- IOrs obtain (.9) "the protection they sought and received when they required a chird party to guannty the debt. " Credil Alliance, 8S1 F.2d at 121; accord In re F.T.L., Tnc" 1S2 Bankr. 6/, 63 (Bankr. E. D. lb. 1993). This prohibilion, however. bas been liberalized in a number of cases whete couns have applied the automatic stay ptotection 10 nondebtor chird panies. Relying 00 A.H. Robins Co., Tnc. v. Picdnin, 788 F.2d 994, 999 (4th Cir.), celt. denied, 479 U.S. 876, 9] L. Ed. 2d T77. /07 S. Ct. 25/ (1986), these courts have extended the automatic stay 10 nonbankrupt codefendants in "unusual circumstances.' As the case law demoostrates, couns have fouod 'unusual circumstances' where 'there is such ideotity between the deblor and the chird.pany defendant that the debtor may be said 10 be the real pany defeada.nt and thaI ajudgmenl IgaiOSI the third-pany defendant will in effect be a judgment or finding Igainst the deblor.' 788 F. 2d 01 999 (relying on both the lutom.uic Stay pro. vision and the banJauplcy COUlt's equitable power:s UD. der /I U.S.c. f /OS 10 enjoin actions agaiosl DOndeblOr codefendants in the Dalkon Shield prnducLl UabUlty Ot. igation because of the potential impacl on the estale and the availability ['101 of insurance proceeds to sadsfy the claims); see also, /n re AmericQ/l Film Technologies. /nc., 17S BanJcr. 847, 85S (Bankr. D. Del. 1994) (stay. ing prosecution o(wrongful disc/Jatge claims against (or. mer and present direclors of deblor corporation because of debtor's indemnification obligations and iLl possible expoSUR 10 collateral esloppel prejudice): Tn re Rzmlly Hwlth Services. Tnc.. 10S BanJcr. 9]7, 9424] (l1anb: C. D. Col. 1989) (staying coUecdon actions agaiDSt DOndebtor members of debtor HMO because judgmeD/.S agaiosl nondebtors would mgger claims for indemnlfi. cation from the deblor HMO). Courts have also extended the stay to noodebtor third panies where stay protecdon is csscntiallo the deblOr's effoltS of reorganization. Sec, e.g.. Tn re Lavuus Burman Associales, /61 BankT. 89/, 899-900 (l1anb: E. D. N. Y. 199]) (enjoining guannty actioos against nondebtor principals of debtor pannerships because principals were the only persons who could effectiVely formulate, fund, and carry out debtors' plans of reorga- nization); Tn re SIt'ltll P. Nelson. 140 Bankr. 814, 816- 17 (Bankr. M. D. Fla. 1992) (enjoining actions against nondebtor guannlor of debtor [.II! corporation's obli. gatioos where guanntor was president of deblOr and president's services, expertise and attendon were CSSCII- tial to the reorganization of the debtor): see also. Paul H. Deutch, Expanding The Automatic Sray; Protecting NoodeblOrs In Single Asset BanJaup~ies, 2 Am. BanIt1: wt, L. Rev. 4S] (/994). . Here, McCartaey argues thai the automatic, stay oaly applied to him in his individual capacity, not to ~'s. As such. he maintaios thai Integra was not stayed from pursuing a deficiency judgment in state coun against Lamar's. as required under the DJA. [n respoase, Integra concedes that under normal circwnstaoces the automatic sray docs nOl preclude cteditors from pursuing their righl to payment from nondebtor third patties. Indeed, Integra notes thai, acting in compUance with chis gell- eral rule. it pursued Lamar's to foceclosure and sheriff's sale. However, Integra assens thae ilcould not have pro- cceded any funber agaiost Lamar's to obtain a deficiellCY judgment because il would have been required under the lerms of the DJA to name McCanney as a respondeDl in the petition and thereby violate the aUlomatic stay pro- leeting him. The banJauptcy coun found Integra's [.12) 1997 V.S, App. I2XIS 2199. "12 Pale 6 argumenllo "" pel1u.asive and re:LIooed thai pennilling Inlegra 10 came McCanney in a deficieocy judgment ae- linn in Slale coun at the same lime that bis banlaupu:y case was pending would defeat the purpose of f 362 to ceotralize all prebanlauptcy civil claims agalost a debtor in the banlauplcy coun. In re McQzrm~. 165 Bankr. lB. 21 (Bankr. Iv. D. lb. J994). We agree. It is undispuled thaI, had Integra sougbt a deficiency judgment agaiost Lamar's, it would bave been required under the DIA to came McCancey as a respoedent in ilS petition or risk discharging birD as loan guarantor. It is also undisputed that, bad Integra camed McCancey as a respocdentln a deficleacy action agaiost Lamar's, It would bave clearly violated Ihc au- tomatic SlaY in place in his baclauplCY. Moreover, Ilts clear that following the sheriff's sale, Lamar's, as a cor- porate enlity, no longer bad any assets. Cocsequently, McCanney, as guarantor, would have been liable for satisfying any deficiency judgment claim asserccd by Integra. Simply Slated, there was no way for lrIIcgra to pursue a deficleccy judgment action against Lamar's and to prolCet its rigbtto satisfaction of Lamar's debt without involving ['13] McCanoey in the process. Given McCanocy's necessary participation in any dc- ficieccy judgment action icitiarcd by Integra againsl Lamar's In Slate coun, we find that the baclaupu:y court properly coccluded that the automatic stay exrccded to enjoin lotegra from complying with the requirements of the DIA. This case falls squarely under the "un- usual circumsWlCcs' exception as develOped in A.H. Robins and ilS progeny: any deficiency judgmenl re. covery from Lamar's would bave necessarily impacted upon McCancey's CSlate. Indeed, because McCaItDcy, as guarantor, was secondarily liable for any deficieocy entered against Lamar's, and Lamar's. following the foreclosure and sheriff s sale, bad no assets. McCartney would bave been the real party defendant in a deficiency judgment action by Integra against Lamar's. A11y defi. ciency judgment entered agaiost Lamar' s would bave op- erated as a judgmeot or finding agaiosl birD; an outcnme clearly io teosion with the purposes of the automatic SlaY. Accordiogly, lotegra was stayed from pursuing a deficieocy judgment action agaiostthe nondebtor third parry Lamar's because McCanney was, in essence, the real parry in intercst. IV. Assumiog. argueodo, [*14) that the automatic stay precluded lotegra from pursuing a deficiency judgment action in Slale coun, McCartney assertS that Integra sbould have sougbt relief from the automatic stay to allow it 10 name bolb Lamar's and McCanney in a defi- ciency judgment petition. This same argument was con- side red and rejecled in In ro Wi/JdllS. 150 Bankr. J27 (Bankr. M. D. lb. (992). an opinioo we fiod ioseNc- live. In Wilkios. the creditor sougbt relief from an auco- matic SlaY to commeoce a deficieocy judgment aclion under the 01A against both the debtor and noedebtor obligol1. The coun denied the creditor's motioo for two primary reasoos. First, the coun beld that 1 J U.S,C. f 108(c) speeifically exteods the six-month limitation pe- riod for deficiency judgmeot actioos under 42 Pa.C,S.A. f 5522(b). n2 ld. al 12B. Thus, conllal)' to the cred- itor's argument, the Wilkins coun found DO urgency thaI the debtor's nbligatlon to the creditor would be dis- charged uoless the rnditor received n:lief from stay IIId filed a de6cleocy pelilion within the six IIIOnth limilalloll period, Secoed, the court noted that the deficicocy Is- sucs were likely to be settled in the bankruptcy court and cocsequently, ['15) then: was DO reason for lbe debtor to defend litigation in state court that could be seuled in the baoJauptcy forum, ld. at 128-29. ~ this. n:- spect, the court expressed its cooccm that lbe c!dllOr nOI be 'burdened by litigation and resulting legal fees if unnecessary at this time,. ld. 01129, 03 n2 Section 108(c) of the Bankruptcy Code reads. UI pertinent pan: If applicable nonbaoJauptcy law, . . fixes a pe- riod for cnmmeocing or continuing a civil aclion in a court other than a bankruptcy court on a claim againsl the debtor.. . . and such period has not expired before the date of lbe filing nf the pctilioD, lben such period docs not expire until the later of- (I) lIle eed of such period, including any suspcllSion of such period occurrlDg on or after lIle commence- ment of lbe case; or (2) 30 days after nolice of lbe rcrmination or expira. tion of the SlaY under section 362. . . with n:spcct to sucb claim. 03 The coun also beld that lbe creditor must com- mence a deficiency judgment action agaiost the noD- debtor obligors within the six-month limitation pe- riod pencilled by stale law. Wilkins. 150 IJankr. at J2B. Significantly, bowever, lbe coun exprcsslY noted that permitting lbe credilnr to proceed against lbe nondebtor obligors would have no impacl upon the debtor's deficiency liability, and lbatllle assets of the nondebtors could be collected wilbout risk of dis- charging lbe debtor pursuant to lbe OJA. Id. Thus, 1991 U.S. App. LEXIS 2199, '15 hao 1 unJik~ the preseDI case. the Wilkins coun fou.od DO 'unusual circwnstallces' thaI would wunnl e~lelld- iDg lbe aUlomalic SlaY 10 lbe Doedeblor obligon. ("16) We agree wilb lbe Wilkins coun thai deblors should 001 be burdeDed by Slale coun IiligatioD wheD deficiency judgmeDlacdons impacdDg UPOD Ibe deblor's CSlale can be seuled iD lbe baDlaupccy forum. 11Ideed, 10 per- mil SIale coun deficieDcy judgmeDI aclions iDvolviDg the deblor 10 proceed wheD lbey can be adjudi~ted 10 lbe banlauplcy coun is 10 do violeoce 10 lbe purposes of Ibe aUlomatic SlaY. ~ discussed earlier. by CCIIll2I- !ziDg all p~baDlauplCy civil claims apIost a dcbcor 10 lbe banlaupccy coun, the deblOr is gnnICd a "bre&lh- iDg spell' duriDg which he is ~Ucved of the finaoclal pressurcs thai drove him 10 banlaupccy. MarldlM, 9$9 F.2d at 1204. The ceDtralizatioD of all claims 10 the banlauplcy coun also permilS lbe asselS of lbe deblOr's eSlale 10 be owshaled for disaibulioo 10 c~lOn 10 an orderly and equilable fashioD. Id. (cilalioD omIl- led). These beDefilS of the automaac slay could DOt be achieved if c~ton are permitted ~lief from stay CO pursue Slale coun deficiency judgmeDt aclions impact- iDg OD the eSlale of the debtor. DeblOIS would be forced 10 e~peod valuable time, energy and resourccs defending against Slale coun IitigatioD that ['11J could be settled directly 10 lbe banlaupccy coun. 04 D4 We Dote also that consideralions of judicial ecoDomy weigh against granting C~101S ~lief from slay 10 pursue SIale coun deficiency judgmeDt acaons that impact UPOD the eslale of the debtor and could be settled 10 the bankruptcy coun. Indeed, the time, energy and resources of the couns are 110 less valu- able commodiaes 10 preserve when It is possible 10 litigate a claim 10 Doe forum Iostead of twO, Moreover. we fail to see how McCanoey was humcd by IDlegra's failure 10 seck relief from lbe aUlomaac SlaY. ~ lbe record clearly demoosualcs. che banlaupccy coun held a valuatiOD heariDg and heard argumeDI cODcemiDg the fair market value of Lamar's property sold at che sheriffs sale. The coun subsequeDtly eDte~ an order findiDg the value of Lamar's property to be $ 20,000 and dircctlog IDlegra to recalculate ilS deficiency claim based OD that value. Thus, che baDlaupccy court af- forded McCartlley an opporruoicy to preseDt evidellCe and testimoDY ["18} at a hearing specifically cODvened to determine che l':lir market value of the property sold at che sheriffs sale. This is precisely che same opporruoicy 10 be heard that McCanney would have been granted in a Slale coun deficiency judgmeDI action commeoced u.oderlbe O/A. See 42 Pa.C.S.A, f 8103(c)(4). In ad- didon, lbe banlauplcy coun's determinatioD of the fair markel value of lbe Lamar's property rcsulled 10 a de- crease 10 the deficiency claim owing to Inlegra, fur. ther demonstratiDg that McCanncy was 1101 bartoed by Inlegra's failure to seck ~lier from the Slay, Insofar as McCanocy would have us find thai he was prejudiced by his inability fully 10 escape liability for his guataIIly. as may have beeD possible under lbe D/A, we decline 10 do so. 'M: will DOl U'2llSmogrify Ibe D/A into a IIIC&IIS for guanJllOlS to e.sape lIabilicy from their guaraotIC3. lIS Accordlogly, we cooclllde wtoone of McCartocy', subswlllve righlS we~ p~juc!iccd by Integra', falIuxe 10 seck ~lief from the automadc stay, lIS See FldeUry &urJc. N.A, v. Bourger. 444 lb, Super. 52, 66J A,2d 21J, 214 (Fa, Super. 0, 199$), allne. denied, 670 A,2d 142 (Fa, 1996), holdlog that the purpose of the Delicieocy Il1dgolClll Act is 10 ~Ueve a debtor of further persooalllabiUcy 10 the credilOr. ifche real property weD by the c~lOron an e~ecudoD bas a "fair market value". (sicJ as of lbe dale of Ibe e~ecuaon sale, sufficient so that the crcdilOr may dispose of the property 10 OthelS (or eveo. sometimes, use it himself) wichout a net lass 10 the creditor(.} (cilaaoos and Ioternal quotations omitted) (emphasis added), ('19) V, In his 6nal argumelll. McCanoey asserts that the baoIauplCy court erred by holdlog that lJ US,C. f l08(c) operated to suspelld the limilaaons period for iniliating a deficieocy judgment aclioll 10 state court pursuant 10 che DIA, Because we have already deter- mined that Integra was Slayed from pursulog a deficieocy judgment acaoll in Slate coun agaiost either Lamar's or McCarmey, we Deed not decide chis issue, Nnoctheless, we nOle parcDchelically that the Pe1lllS)'Ivania superior Coun bas unequivoca1ly held that. under lJ US,C. f 108(c)(2), Ibe six month limitaliOD period for the fiI\og of a deficiency peaaon pUlSlWlllO the DIA does 1lO1 e~pi~ until thirty days alier noace of che terminaaon of che automaac SlaY. CIti4en.s National BanJc ofE\IQ1IS Qry v. Gold, 4J9 Fa. Super. 254, 653 A. 2d 1245, 124748 (Fa. Super. CI. 1995) (citillg Willtios); accord In re C.K. Smith, /92 Bankr. J97, J99-4oo (BanIcr. W. D. 1991 U.S. Ap~. LEX:S 2199. "19 Pale 8 Fa. /996). VI. In summary. we arc satisfied tb.1llnlegra look all the steps legally possible 10 prolecl lis righlS 10 a deficieocy claim against McCartlley as guanolor or Lamar's debl. 10legra filed a proofof claim In McCartocy's banlauplcy proceeding and pllffiled Lamar's 10 foreclosure ["201 and sberiffs sale. Sioee any other action 10 collect on the deficieocy would bave DCCessarily involved McCanuey, Inlegra could not proceed Cunher withoul either violar- ing the automatic Stay or sacrificing ilS deficieocy claim against McCanuey as guan,olor of Umar's debr. \\\: cooclude tb.1t Inlegra was stayed from inltiadog a defi. cieocy judgmeOl acdon against Lamar's and McCartney in Stace coun. Accordingly, we will aflinn the order of lbe districr coun. CONCURBY: STAPLETON CONCUR: STAPLETON, J., coocurting. McCanncy argues tb.1t the OJA relca.scd his guan,oty obligatioo to Integra when the bank failed to instiNtc a deficiency procccdiog oamiog him as a guarantor within six mooths of its purchase of the propeny at the execu- lion sale. This is an untenable posidon. The automatic Stay provision of the Banlauptey Code, 11 U.S. C. 1362. clearly would be undermined by the enforcement in this situation of that pordon of the OJA releasing a guan,otor who is not so oamcd, 42 Pa. C.S.A. f 8103(b). If the coun were willing to rest its decision on this ground, I would join without commeot. The coun says a great deal more, however, and I am, accordiogly, unable to join in ilS opinion. (021) It is UI1QCCcssar)' for the coun to address the issu: of whether the OJA in this situation bas the effect of releasing Lamar's Restaurant & Lounge's obligation to 100egra. Accordingly, I would DOt addrcss that issue, '.'kre it necessary for the coun 10 address it, however, I would find no justification for cooeluding, as does the coun, that the automatic stay provision deprives a pri- mary obligor Dot in banJcruplCY of the benefit that the DJA intended it to bave. There arc simply 00 "unusual circumslallccs' wamlDting an exception from the geoerai rule that 1 362 applies Daly to a debtor in banlcniptcy. The coun's coaclusioo to the contrary, while it makes 00 difference here, is likely to lead 10 mischief in the coolext of other cases. As the coun persuasively demoDStrales. there can be 00 qucstion that giviog Cull effect 10 the OJA would under- cut the Objective of the automatic stay of f 362. There is thus a conflicl here betweeo stale law and banlauplCY law thai mll.\l be resolved. UDder the Supremacy Clause in cases of irreconcilable conflict, stale law must give.:ray This docs 001, however, give a coun an unIimilCd lice~ 10 decline enforcemeot of state rules of decisioo, ["22) The coun must look for the accommodatioo which wlI1 secure the objective of the bankruptcy law and, at the same lime, iOlrude least on the objective or objectives underlyiog the stale law rule. The accommodatioo thai this approacb counsels here requires the followiog cooclusions: (a) The objective of 1 362 can be secured by boldlng uneoforccable that poRion of the OJA which rcquIrcs the creditor to join the bankrupt 8\W'IIIlOr in the OJA procccdlng upon pain of losing his claim against die bankrupt guarantor. It would ncccssariIy follow that the bankrupt guarantor would not be bound by the de- ficiellCY determination unless be chose, with court ap- proval, 10 pan/cipace. It also follows that the banktupt guanolor can be pwsucd in banlauplC}' coun during the period specified in f 108(c) of the Banl:ruplC}" Code; even though the creditor may not be succcssfullf the claim bas been discharged for some reason other than this portion of the OJA. (b) There is nothing incoosisteot between 1 362 and that poRion of the OJA tb.1t requires an executing cred- itor to file a deficieocy proceeding agaiDst the primary deblOr in order to preserve his claim agaiDst the pri. mary debtor. (023) Giving effect to this pordon of die OJA would be consistent with the ratiooale of Marldme E~ctric Co. v. U.S. Jersey Bank, 959 F.2d 1194 (3d Cir. 1991). Moreover, as I have norcd,llind nothing in the Code that would justify depriving the primary debtor of the protection of the OJA, The difference between these cOlIClusioQS and those reached by the coun is not matcriaI bere. bccIusIl McCanncy argucs Daly that be was released under I!Ie terms of the OJA. He does not argue tb.1t be was released by the effect whicb Pennsylvania law accords an insuu- meol having the terms of his note. n6 The diffcrcocc between my conclusions and those of the court would be imponant. bowever, if it appeared that Pennsylvania follows the geoeraily accepted rules regarding the effect on a guarantor of releasing the primary deblOr aDd if the plaiodff were relying on that law. 06 The appeodix docs DOt contain what McCartllCy refers to as his note of guan,oty, and be citcs no Pennsylvania case law on whether and under what circumstanCcs release of the primary obligor releases a guarantor or surety, etc. CERTIFICATE OF SERVICE I, Paige Macdonald-Matthes, Esquire, do hereby certify that a true and correct copy of the Defendant's Reply to Plaintiff I S petition to Remove Stay in the above-captioned matter was placed in the United States Mail, first class deliver, postage prepaid in Harrisburg, Pennsylvania on the following: Anthony P. Schimaneck, Esquire 700 North Duke Street P.O. Box 4686 Lancaster, PA 17604-4686 (Attorney for Plaintiff) Respectfully submitted, CUNNINGHAM & CHERNICOFF, P.C. Date: \)(<''''.\1..,( ';:.'''YI. By: ~v"p."'r',:)J>..".r~-.-Iv,,,,i;:ti'\lW Paige Macdonald-Matthes, Esquire I.D. #66266 2320 North Second Street P.O. Box 60457 Harrisburg, PA 17106-0457 (717) 238-6570 (Attorneys for Defendant) 5 " .' 4 ij )', ~; /: It:' I' If: f;' . , ~i; i:~ "j' f .' { .,: t" I~ .r~ ';" ~:. ~) ~ I c)' ( ... \,.. '" \" n ut. "-~ ;. \\' " (.\', " ('1 . \1.\ h.:.. .. ,.. u. ,:;, ~. v", c. ,', ~ ..- ,. :.- , ) ,..:' 'e;' c.i ~ a: ~ If c o~z S:!I=~ ZUI'"' II: >- lUCUl :rzz I.lOZ oIllil~ :Ii UI'R 0( . ~ :rZII: "o=> zNlD z~!!! Z II: => II: l.l ~ >. Co 0 " u " ~ ~ 0 " '0 C .. " :l ::: -0 .. ~ " 0 .c " 8 " ~ ..... '" 0 :s '0 " ;i:: ~ -;;; " u .S ~ >..~ <8 .c ~ >. ." 0 " .1!- '1) c ~ .0:5 .9 .. - ..... ;;: . ,. 0 ,i F:' .. t::.