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HomeMy WebLinkAbout07-4086j-~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW HANOVER ASSOCIATES, Plaintiff v. No. b'1-yo8fo C ivi l T~,rn~ CALABRESE AND SONS, INC., Defendants Replevin Action NOTICE TO DEFEND You have 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 maybe 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. YOLJ 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 717-249-3166 IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. j00194867/1} r EN LA CORTE DE ALEGATOS COMUN DEL CONDADO DE CUMBERLAND PENNSYLVANIA DIVISION CIVIL HANOVER ASSOCIATES, Plaintiff v. CALABRESE AND SONS, INC., Defendants No. Replevin Action AVISO PARR DEFENDER Conforme a PA RCP Num. 1018.1 LISTED DEBE LLEVAR ESTE PAPEL A SU ABOGADO ENSEGUIDA. SI LISTED NO TIENE UN ABOGADO, VAYA O LLAME POR TELEFONO LA OFICINA FIJAD AQUI ABAJO. ESTA OFICINA PUEDE PROVEERE CON 1NFORMACION DE COMO CONSEGUIR UN ABOGADO. SI USETED NO PUEDE PAGARLE A UN ABOGADO, ESTA OFICINA PUEDE PROVEERE INFORMACION ACERCA AGENCIAS QUE PUEDAN OFRECER SERVICIOS LEGAL A PERSONAS ELIGIBLE AQ UN HONORARIO REDUCIDO O GRATIS. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 717-249-3166 {00194867/1} 2 r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW HANOVER ASSOCIATES, Plaintiff v. No. r7 7- y O f G Cc.u=~.l ~,,, CALABRESE AND SONS, INC., Defendants Replevin Action COMPLAINT AND NOW, TO WIT, this 5`h day of July 2007, come the Plaintiff, Hanover Associates, by its attorneys, CGA Law Firm, and files the within Complaint in Replevin stating as follows: 1. Plaintiff, Hanover Associates, is a Pennsylvania Limited Partnership with its principal place of business located at 311 East Elmwood Avenue, Mechanicsburg, PA 17055 2. Defendant Calabrese and Sons, Inc. is a Pennsylvania Corporation with a principal place of business located at 406 Brandy Lane, Mechanicsburg, PA 17055. 3. Plaintiff, Hanover Associates, through its General Partner, David G. Fisher, entered into an agreement with the Defendant for the lease and subsequent purchase of a Lodge and Shipley Lathe (Serial Number 550100) (Hereinafter, "Lathe") See Attached Exhibit "A" as if fully incorporated herein. 4. Said agreement was executed by the parties on July 12, 2002 and was to provide for a lease term of five years from June 1, 2002. 5. At the conclusion of the lease term, an amount of Sixty Thousand Three Hundred and Seventy Five Dollars ($60,375.00) would be transferred over and above the {00194867/1} 3 lease payments to the Lessor for transfer of the title to the Testing Machine to the Payor. See Plaintiff s Exhibit "A" at Paragraph III. 5. Upon information and belief, the Defendant has maintained and operated said Lathe at the agreed upon location at 406 Brandy Lane, Mechanicsburg, PA. 6. Defendant has defaulted on his payments pursuant to the lease agreement. 7. Defendant unjustly retained the property as a result of failure to provide payment according to the terms of the lease agreement and therefore is in breach of said lease agreement. Plaintiffs hereby make a demand for return of the property. WHEREFORE, Plaintiffs respectfully request that this Honorable Court enter an Order for return of the property. Respectfully submitted, CGA LAW FIRM ~~ .~ Christian J b, Esquire Supreme Court I.D. No. 85370 135 North George Street York, PA 17401 717-848-4900 telephone 717-843-9039 facsimile Attorneys for Plaintiff (00194867/1} 4 VERIFICATION I hereby affirm that the following facts are correct. The attached Complaint is based upon information which has been furnished to counsel in the preparation of this document. The language of the Complaint is that of counsel and not mine. I have read the Complaint and to the extent that the same is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the Complaint is that of counsel, I have relied upon counsel in making this Verification. I hereby acknowledge that the averments of fact set forth in the aforesaid Complaint are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities. Date: By: ~ ./.~ i~~~. David G. Fisher Hanover Associates {00194867!1} ` LEASE AGREEMENT Made the 12"' day of July, 2002, by and between HANOVER ASSOCIATES, a Pennsylvania Limited Partnership, Lessor And CALABRESE & SONS, INC., Pennsylvania Corporation, Lessee I. LEASE AGREEMENT Lessor leases to Lessee and the Lessee rents from the Lessor equipment consisting of a Lodge and shipley lathe S/N 50100. Said equipment will be located at 406 Brandy Lane, Mechanicsburg, and will not be moved to a new location without written permission given by Lessor. The term of the lease is five years from July 12, 2002. Rental shall be paid in the total amount of One Hundred and Eight Thousand ($108,000.00) Dollars With payments of Eighteen Hundred ($1,800.00) Dollars each month; the first payment shall be payable in July 12, 2002, and on the like day of each succeeding month in advance during the term of the lease. In the event the Lessee purchases the equipment as provided in the Agreement of Sale (Exhibit A) the obligation to pay rent shall terminate as of the date of transfer of ownership. II. LEASED EQUIPMENT (a) The Lessee has selected M.P.E. Machine Tool, Inc. of Cony, Pennsylvania as the supplier from where Lessor is to purchase the above described equipment which the Lessee has selected. Lessor makes no warranty, express or implied, as to any matter whatsoever; including the condition of the equipment, its merchantability or its fitness for any particular purpose and as to the lessor, the lessee leases the equipment "as is" (b) If the equipment is not properly installed, does not operate as represented or warranted by the supplier, or is unsatisfactory for any reason, the Lessee shall make any claim on account EXHIBIT rl' claims, costs, expenses, damages, and liabilities, including reasonable attorney's fees resulting from or incident to the use, operation, or storage, of the equipment during the term of this Agreement and while said equipment is in possession or control of the Lessee. The Lessee agrees to keep the equipment insured to protect all interests of the Lessor, at the Lessee's expense against all risks of loss or damage from every cause whatsoever for not less than the unpaid balance of the lease rentals due hereunder or the then current value of said equipment, whichever is higher and in addition shall maintain insurance in an amount reasonable under the circumstances to cover the liability of the Lessor for public liability and property damage. Lessor shall be named as an insured in all said policies and as sole loss payee in the policies insuring the equipment. The proceeds of such insurance, whether resulting from loss or damage or return premium or otherwise, shall be applied toward the replacement or repair of the said equipment on the payment of obligations of the Lessee hereunder at the option of the Lessor. V. DEFAULT AND REMEDIES In the event the Lessee shall default in the payment of any rent or any sums due hereunder for a period of 10 days or in the event of any default or breach of the terms and conditions of this lease or if any execution shall be issued in any action whereby the equipment may be taken or distrained or of a proceeding in bankruptcy shall be instituted by or against the Lessee or its property or if the Lessee shall enter an agreement with its creditors which could impair the Lessors' security or increase its credit risk, the Lessor shall have the right to do the following: ( a) Accelerate the balance of rentals payable hereunder, thereby requiring prepayment of this lease with all such rentals due and payable forthwith upon receipt of notice of acceleration and demand for payment. Should the Lessee fail to make such payment after notice and demand, the Lessor may institute appropriate legal proceedings against the Lessee with the Lessee being responsible for said rentals, court costs, and reasonable attorney's fees. All sums due under the thereof solely against the supplier and shall nevertheless pay the Lessor all rent payable under this Lease, the Lessee hereby waiving any such claims as against the Lessor. The Lessor may include as a condition of its purchase order, that supplier agree that all warranties, agreements, and representations, if any, which may be made by supplier to the Lessee or the Lessor, may be enforced by the Lessee in its own name. The Lessor hereby agrees to assign to the Lessee, solely for the purpose of making and prosecuting any said claim, all of the rights which the Lessor has against supplier for breach of warranty or other representation respecting the equipment. The Lessor shall have no responsibility for delay or failure to fill the order. (c) The Lessee understands and agrees that neither the supplier nor the salesman or other agent of the supplier is an agent of the Lessor. No salesman or agent of supplier is authorized to waive or alter any term or condition of this Lease, and no representation as to the equipment or any other matter by the supplier shall in any way affect the Lessee's duty to pay the rent and perform its other obligations as set forth in this Lease. III. OWNERSHIP OF EQUIPMENT No title or right in said equipment shall pass to Lessee except the rights expressly granted by this lease and the addenda thereto. Said equipment shall remain personal property even though it may be attached to realty. Lessor reserves the right to affix plates or other markings on the equipment indicating the lessor is the true owner thereof. All replacements, equipment, repairs, or accessories made to the equipment shall become a component part thereof and title thereto shall be immediately vested in Lessor and shall be included under the terms hereof. IV. INSURANCE The Lessee assumes the entire risk of loss or damage to the equipment, whether or not covered by insurance, and no such loss shall relieve the Lessee of its obligations hereunder. The Lessee agrees to and does hereby indemnify and hold the Lessor harmless of, from, and against all said calculations shall become immediately due and payable as liquidated damages rather than a penalty provision. (c) Continue to collect each monthly rental as it comes due by appropriate legal proceedings with the Lessee being responsible for said rental, court costs, and reasonable attorney's fee. VI. WAIVERS The omission by the Lessor at any time to enforce any default or rights reserved to it, or to require performance of any of the tem~,s, covenants, or provisions hereof by the Lessee at any time designated, shall not be a waiver of any such default or right to which the Lessor is entitled, nor shall it in any way affect the right of the Lessor to enforce such provisions thereafter. The Lessor may exercise all remedies simultaneously, pursuant to the terms hereof, and any such action shall not operate to release the Lessee until the full amount of the rentals due and to become due and all other sums to be paid hereunder have been paid in cash In Witr~ess Whereof the parties have executed this lease the day and year above written: LESSOR: Hanover Associates General Partner LESSEE: Calabrese & Sons, Inc. By ~~'~ r %% President AGREEMENT OF SALE Made the 12~' day of July, 2002, by and between HANOVER ASSOCIATES, a Pennsylvania Limited Partnership, Seller And CALABRESE & SONS, INC., a Pennsylvania Corporation, Purchaser WHEREAS, the Purchaser maintains a business which utilizes a Lathe machine and has requested the Seller to purchase it and lease it to Purchaser and at the termination of the lease to purchase it from Seller, and WHEREAS, the Seller has agreed to purchase a Lodge & Shipley Lathe S/N 50100 (the Equipment) from MPE Machine Tool, Inc. of Corry, Pennsylvania. WHEREAS, said equipment has been leased to the Purchaser for a term of five years with the provision that Purchaser must purchase the equipment on the terms and condition of this agreement. NOW THIS AGREEMENT WITNESSETH that the parties for and in consideration of the mutual covenants herein contained and intending to be legally bound hereby agree as follows: I. AGREEMENT TO PURCHASE Seller agrees to sell to the Purchaser who agrees to purchase the equipment consisting of the Lodge & Shipley Lathe S/N 50100 which seller has agreed to purchase from M.P.E. Machine Tool, Inc. of Corry, Pennsylvania. It is understood that the Seller is acquiring said equipment solely for the purpose of leasing and reselling it to Purchaser. II. PURCHASE PRICE FROM THE SUPPLIER The purchase price of the equipment shall be the amount of the invoice from M.P.E. Machine Tool, Inc., which indudes taxes and costs of delivery to Purchase's place of business at 406 Brandy Lane, Mechanicsburg, Pennsylvania. III. PURCHASE FROM SELLER It is understood that the equipment will be leased to Purchaser for a period of five years and at the end of the lease period the Purchaser shall pay Sixty Thousand Three Hundred and Seventy Five ($60,375.00) Dollars to the Seller and title will be transferred to Purchaser. The obligation to purchase is independent of and not conditioned on performance of the lease agreement. In the event the Purchase desires to purchase the equipment before the expiration of the five-year term it may do so by giving 30 days written notice of the election to purchase which may only be consummated on July 12"' of each year commencing July 12, 2003 according to the following schedule: Purchase Date Price July 12, 2003 $94,875.00 July 12, 2004 $86,250.00 July 12, 2005 $77,625.00 July 12, 2006 $69,000.00 IV. OWNERSHIP OF EQUIPMENT No title or right in said equipment shall pass to Purchaser except those expressly granted by this agreement. Said equipment shall remain personal property even though it may be attached to realty. Seller reserves the right to affix plates or other markings on the equipment indicating the Seller is the owner thereof. All replacements, equipment, repairs, or accessories made to the equipment shall become a component part thereof and titre thereto shall be immediately vested in the Seller. V. WAIVER OF WARRANTIES Purchase has selected both (1) the equipment and (2) M.P.E. Machine Tool, Inc. as the supplier from whom the Seller is to purchase the equipment. Seller makes no warranty, express or implied, as to any matter whatsoever, including the condition of the equipment, its merchantability or its fitness for any particular purpose and as to Seller, the Purchaser buys the equipment "as is". If the equipment is not properly installed, does not operate as represented or warranted by the supplier, or is unsatisfactory for i any reason the Purchaser shall make any claim solely against the supplier, waive any claim against the Seller and pay the purchase price without set off. Seller agrees to condition its purchase order to the supplier on the right of the Purchaser in its own name to enforce all warranties, representations and agreements made by the supplier to the Seller. VI. DEFAULT AND REMEDIES 1.) In the event the Purchaser fails or refuses to pay the purchase price of $60,375.00 on July 11, 2007, the Seller may institute appropriate legal proceedings against Purchaser with the Purchaser being responsible for court costs and reasonable attorneys' fees in addition to the purchase price. 2.) All rights reserved to Hanover Assoaates, Lessor in the lease to which this Agreement of Sale is an Exhibit, shall extend to be included in the rights of Hanover Assoaates as the Seller herein. 3.) The omission by Seller at anytime to enforce any default or rights reserved to it by the lease or agreement shall not be a waiver of any such default or right to which Seller is entitled, nor shall it in any way effect the rights of the Seller to enforce such provisions thereafter. Lessor may exercise all remedies under the agreement of sale and lease simultaneously and any such action shall not operate to release Purchaser-Lessee until all sums due to Seller are paid in full. IN WITNESS WHEREOF the parties have executed this sales agreement the day and year above written SELLER: Hanover Associates BY General P rtner BUYER: Calabrese 8~ ns, Inc. By__ ~.~";y~ ~~, President ~_ Attest ,~ Secrets N v- ~? ,-~J OO C: -_- T1 ~ _ .. .~. ~;rT' r ~ h V i~ ': . 00 - --i ~ ~ C7 t31 --' ~:: ~ - r-n ' -~ .~.- `' ~ ~ ~ SHERIFF'S RETURN - REGULAR CASE NO: 2007-04086 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HANOVER ASSOCIATES VS CALABRAESE AND SONS INC MEGAN HARLOW Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - REPLEVIN CALABRESE AND SONS INC the DEFENDANT at 1430:00 HOURS, on the 11th day of July 2007 at 406 BRANDY LANE MECHANICSBURG, PA 17055 by handing to JOEY CALABRESE, VICE PRESIDENT ADULT IN CHARGE a true and attested copy of COMPLAINT - REPLEVIN together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 10.56 Postage .58 Surcharge 10.00 .00 ~1~5~6~ ~"' / 39.14 Sworn and Subscibed to before me this __ day So Answers: l•-, ~" ~,~„r..~ R. Thomas Kline 07/12/2007 CGA LAW FIRM By: -L ` eputy eri f was served upon of A.D. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION HANOVER ASSOCIATES, Plaintiff v, No. 04-3940 CALABRESE & SONS, INC., Defendant The Honorable Edgar B. Bayley PROPOSED ORDER AND NOW, thi~ day of April, 2008, upon consideration of the Plaintiff and Defendant's mutual agreement and Stipulation, it is hereby ORDERED and DECREED that: a) Calabrese and Sons, Inc. and Hanover Associates (collectively the "Parties") have agreed that $220,000.00 of the escrowed funds currently retained shall be released to Hanover Associates as the first lien holder in satisfaction of its first in line Note and Judgment, and remit the remainder of the balance in escrow to Virginia Calabrese as the next subsequent lien holder; b) The action docketed at 07-4085 be marked settled and discontinued with prejudice, and the actions docketed at 07-1040 and 07-4086 in the Court of Common Pleas for Cumberland County, will be marked settled and discontinued with prejudice. c) As part of the settlement of the above listed Replevin Actions, Calabrese and Sons, Inc. will permit the removal of the equipment that is subject to the above reference replevin litigation, and Calabrese and Sons will permit the removal and loading of said equipment onto the trucks supplied by Hanover Associates (rigging insurance, riggers, and all equipment necessary to remove the machines will be supplied by the Plaintiff). Said removal to occur within thirty (30) days of this Order. d) The Parties shall not commence any action pertaining to the remaining Sorrel Forge Note that is currently retained by Hanover Associates, prior to June 15, 2008. e) The remainder of the escrow is to be released to Virginia Calabrese a e next subsequent lien holder, and a calculation of said balan to ed to the Plaintiff for the purpose of tracking the balance out t equent lien holder. B THE COU J. ~~ r~ U a -" L1-. ,r' .~ `'i y ~...1 C~ F) K ~ U~ ~L ~ l ,~- ;: ~ c~ .~ ~,: C`v -~ JO ~~ ~„~ ~,, ;_ +i Q w_ -~ '"' ~ Ci"Y YJ ...~ ~' n .~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION HANOVER ASSOCIATES, Plaintiff . v- No. 04-3940 CALABRESE & SONS, INC., , Defendant The Honorable Edgar B. Bayley STIPULATION AND NOW, this day of April, 2008, the Plaintiff, Hanover Associates and the Defendant, Calabrese and Sons, Inc. hereby stipulate as follows: 1. The Plaintiff and Defendant, (collectively "the Parties") agree to the release of $220,000.00 to Hanover Associates from the escrowed funds that are the subject of the current litigation. 2. In exchange the Plaintiff will release its current judgment action pertaining to the first judgment note which is the subject of the above captioned action. 3. In addition, the Plaintiff will release and discontinue its remaining actions captioned at 07-4085, 07-4086 and 07-1040. 4. The release and discontinuance of the 07-1040 replevin action listed in Paragraph 3 above, will require that the Defendant will permit the removal and loading of a Tinius Olsen Electromatic Torsion Testing Machine with a serial number of 51126. Plaintiff will provide the trucks upon which the machines will be loaded, and Plaintiff will also provide riggers, rigging insurance and all equipment necessary to remove the machines. 5. The release and discontinuance of action docketed at 07 - 4086 will require that the Defendant will permit the removal and loading of a Lodge and Shipley ~00221681/I~ .~ Lathe with a serial number of 550100. Plaintiff will provide the trucks upon which the machines will be loaded, and Plaintiff will also provide riggers, rigging insurance, and all equipment necessary to remove the machines. 6. This Stipulation and ultimate Court Order will in no way affect the rights and remedies of either party as it relates to the Plaintiff s second note -involving the Sorrel Forge Assignment. 7. The Parties agree that said equipment will be removed within thirty (30) days of Court Order that confirms present stipulation. Otherwise, the Defendant will be entitled to storage fees for retaining said property. The Plaintiff agrees to stay any action as it relates to' the Sorrel Forge Note/Judgment until after June 15, 2008. WHEREFORE, the Parties would respectfully request that this Honorable Court enter an Order consistent with said stipulation. Respectfully Submitted, CGA L F' m hristian J. abb, Esquire Supreme Court I.D. # 85370 135 North George St. York, PA 17401 (717} 848 - 4900 Fax: (717} 843 - 9039 Seth T. Mosebey, Es~¢Gire Supreme Court I.D. #203046 Martson Deardorff Williams Otto Gilroy & Faller 10 East High Street Carlisle PA 17013 Telephone (717) 243-3341 Facsimile (717) 243-1850 X00221683%I}