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HomeMy WebLinkAbout07-4758Darrell C. Dethlefs, Esquire ID # 58805 The Law Office of Darrell C. Dethlefs 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone - (7l7) 975-9446 Fax - (717) 975-2309 DI:)ethlefs~;acrl.com Attorney for Plaintiff WILLIAM D. MORROW, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA ~. No: d 7-. ~7S'P ~L~~ l biz. '~'~ 875 MARKET STREET, LLC, DAVID G. KENNERLY, and MICHAEL A. CARRUCOLI, CIVIL ACTION -LAW Defendants 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 may be entered against you by the Court without further notice for any money claimed in the Complaint or for any 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 OR KNOW A LAWYER, THEN YOU SHOULD GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP: CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 NC~TICId- Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas signuientes, usted tiene vienta (20) dias de plazo al partir de al fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona a por abogado y archivar en la corte en forma escrita sus defensas o sus objectiones a las demandas en contra de su persona. Sea avisado que si usted no se fefiende, la corte tomara medidas y puede una Orden contra usted sin previo aviso o notificacion y por cualquier queja o akuvui que es pedido en la peticion de demanda. Usted puedo parder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DIMERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEPONO A LA OFICINA CUYA DIRECCION SE EMCUENTRA ESCRITA ABAJO PARR AVERIGUAR DONDE SE PUEDE CONSSGUTA ASISTENCIA LEGAL. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 r Darrell C. Dethlefs, Esquire 1D # 58805 The Law Office of Darrell C. Dethlefs 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone - (717) 975-9446 Fax - (717) 975-2309 DDethlefs'ri:;aol.com Attorney for Plaintiff WILLIAM D. MORROW, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA ~ l 875 MARKET STREET, LLC, DAVID G. KENNERLY, and MICHAEL A. CARRUCOLI, CIVIL ACTION -LAW Defendants COMPLAINT AND NOW, comes the Plaintiff, William D. Morrow, by and through his attorneys, THE LAW OFFICE OF DARRELL C. DETHLEFS, by Darrell C. Dethlefs, Esquire, and makes the within Complaint against the Defendants, 875 Market Street, LLC, David G. Kennerly and Michael A. Carrucoli, and, in support thereof, avers as follows: 1. Plaintiff, William D. Morrow, is an adult individual currently whose address is 1150 Siddonsburg Road, Mechanicsburg, Cumberland County, PA 17055. 2. Defendant, 875 Market Street, LLC has never been registered with the Pennsylvania Department of State, Corporations Bureau and is believed to have an address of 875 Market Street, Lemoyne, Cumberland County, Pennsylvania. 3. Defendant, David G. Kennerly, is an adult individual with an address at his principal place of business at 875 Market Street, Lemoyne, Cumberland County, Pennsylvania. 4. Defendant, Michael A. Carrucoli, is an adult individual with an address at his principal place of business at 875 Market Street, Lemoyne, Cumberland County, Pennsylvania. 5. Upon information and belief, Plaintiff believes, and, therefore, avers that either or both Defendants, David G. Kennerly and Michael A. Carrucoli, is/are the owner(s), incorporator(s), proprietor(s), president and/or otherwise in charge, owns, has a controlling interest in or controls, Defendant, 875 Market Street, LLC. 6. At all times material hereto, Plaintiff was dealing directly with Defendants, David G. Kennerly and Michael A. Carrucoli. 7. It is believed, and, therefore, avered by Plaintiff that Defendants, David G. Kennerly and Michael A. Carrucoli, were acting in their individual capacity during the Promissory Note negotiations. 8. This action arises from a Promissory Note, entered into on September 16, 2005 which covered a loan in the amount of $50,000.00 for the real property located at and known as 875 Market Street, Lemoyne, Cumberland County, Pennsylvania. (A true and correct copy of the aforementioned Promissory Note is attached hereto, made part hereof and marked as Plaintiff s Exhibit "A"). 9. Plaintiff believes, and, therefore, avers, that Discovery will reveal that it will be proper for this Honorable Court to pierce the corporate veil and attach liability and damages responsibility to any and all members of Defendant, 875 Market Street, LLC, including, but not limited to Defendants, David G. Kennerly and Michael A. Carrucoli. COUNT I -BREACH OF CONTRACT WILLIAM D. _MORROW v. 875 MARKET STREET, LLC 10. Plaintiff, William D. Morrow, incorporates and makes part of this Count paragraphs 1 through 9 of this Complaint as if fully set forth. 11. Defendant, 875 Market Street, LLC, entered into a contract, in the form of a Promissory Note was entered into on September 16, 2005 in the amount of $50,000.00 payable in monthly installments, with interest at a yearly rate of 8.00%, at the monthly rate of $606.64. 12. The obligation of Defendant, 875 Market Street, LLC, to Plaintiff, William D. Morrow, is in default. 13. Plaintiff, William D. Morrow, is owed payments plus late fees for the following months, October 2005, May 2007 and July 2007. 14. Plaintiff, William D. Morrow, is owed payment for the following month, August 2007. 15. Defendant, 875 Market Street, LLC, has breached its contract with Plaintiff. 16.As a result of the breach, the Defendants owe the following: Principle = $45,097.57 Accrued Interest = $1,018.09 Late Fees = $606.60 Attorneys' Fees = $2,336.11 Total = $49,058.00 17. It is believed and therefore, averred by Plaintiff that members, including, but not necessarily limited to Defendants, David G. Kennerly and Michael A. Carrucoli, of Defendant, 875 Market Street, LLC, had the complete domination and control of both the entity's policy and business practices. 18. The members of Defendant, 875 Market Street, LLC, used the aforementioned control to commit fraud or wrong, breach of a legal duty, or a dishonest or unjust act, specifically, the entrance into and subsequent default on the aforementioned contract. 19. The members' aforesaid control and breach of duty proximately caused the injury and/or loss to Plaintiff, William D. Morrow. 20. Plaintiff believes, and, therefore, avers, that Defendant, 875 Market Street, LLC, falsely and fraudulently omitted facts that were known to it or should have been known to it by failing to disclose that Defendant would not or may not be able to and/or capable of making the required monthly installments as delineated and agreed to under the terms of the aforementioned Promissory Note. 21. The actions of the Defendant, 875 Market Street, LLC, had a tendency to and did, in fact, deceive Plaintiff. 22. Plaintiff believes, and, therefore, avers, that Defendant, 875 Market Street, LLC, acted with reckless indifference to the truth in dealing with Plaintiff. 23. Plaintiff justifiably relied on the fraudulent statements, actions and concealment of the Defendant, 875 Market Street, LLC. 24. Plaintiff believes, and, therefore, avers, that Defendant, 875 Market Street, LLC, is not a lawfully established LLC. 25. Accordingly it is believed, and, therefore, averred, by Plaintiff, that it would be improper for this Honorable Court to afford the protection of an LLC to an organization and its alleged members who have not met or followed the guidelines which LLC's must adhere to in the Commonwealth of Pennsylvania. 26. Plaintiff believes, and, therefore, avers, that Defendant, 875 Market Street, LLC does not have sufficient assets to pay and honor a judgment in this matter. WHEREFORE, Plaintiff, William D. Morrow, respectfully requests that this Honorable Court enter Judgment in his favor and against Defendant, 875 Market Street, LLC, in the amount of $49,058.00 plus interest at 8% and attorneys' fees. Additionally, Plaintiff, William D. Morrow, respectfully asks this court invoke the equitable remedy of corporate veil-piercing against Defendant, 875 Market Street, LLC, and hold its members personally liable for its default. COUNT II -NEGLIGENCE WILLIAM D. MORROW v. 875 MARKET STREET. LLC 27. Plaintiff, William D. Morrow, incorporates and makes part of this Count paragraphs 1 through 26 of this Complaint as if fully set forth. 28. Plaintiff believes, and, therefore, avers that Defendant, 875 Market Street, LLC, as a sophisticated business entity/organization owed a duty of care to Plaintiff not to mislead Plaintiff as to its ability and desire to make the aforementioned required monthly installments. 29. Plaintiff reasonably relied upon the assertions of Defendant, 875 Market Street, LLC, insofar as they were a legitimate, honest, productive, limited liability company at all times material hereto. 30. Plaintiff believes, and therefore avers, that despite actual or constructive knowledge that they were not a legitimate, honest, productive, limited liability company, Defendant 875 Market Street, LLC, presented themselves as such without warning to Plaintiff. 31. Plaintiff believes, and, therefore, avers, that Defendant, 875 Market Street, LLC, falsely and fraudulently omitted facts that were known to them or should have been known to them by failing to disclose the fact that they were not a legitimate, honest, productive, Limited Liability Company at all times material hereto. 32. The actions of the Defendant had a tendency to and did, in fact, deceive Plaintiff. 33. Plaintiff believes, and, therefore, avers, that Defendant acted with reckless indifference to the truth in dealing with Plaintiff. 34. Plaintiff believes, and, therefore, avers, that Defendant utilized willful, wanton, malicious and intentional fraud, negligence, misrepresentation in contracting for the terms of the aforementioned Promissory Note. 35. Plaintiff believes, and, therefore, avers, that Defendant had actual knowledge of the negligent nature of its actions, concealment and representations. 36. Plaintiff justifiably relied on the negligent representations, statements, actions and concealment of the Defendant. 37. By way of Defendant, 875 Market Street, LLC, action, Plaintiff has incurred actual damages in the amount demanded below and averred, in detail, within this Complaint. WHEREFORE, Plaintiff, William D. Morrow, respectfully requests that this Honorable Court enter Judgment in his favor and against Defendant, 875 Market Street, LLC, in the amount of $49,058.00 plus interest at 8% and attorneys' fees. Additionally, Plaintiff, William D. Morrow, respectfully asks this court invoke the equitable remedy of corporate veil-piercing against Defendant, 875 Market Street, LLC, and hold its members personally liable for its default. COUNT III -UNJUST ENRICHMENT WILLIAM D. MORROW v. 875 MARKET STREET. LLC 38. Plaintiff, William D. Morrow, incorporates and makes part of this Count paragraphs 1 through 37 of this Complaint as if fully set forth. 39. Plaintiff believes, and, therefore, avers, that by way of not making the aforementioned requisite monthly installments and continuing to occupy and use the premises located at and known as 875 Market Street, Lemoyne, Cumberland County, Pennsylvania for Defendant's personal/private and/or business use, this conveyed a benefit unto Defendant whereby Defendant realized the gain and use of the aforementioned money without making the requisite installments to Plaintiff. 40. Plaintiff believes, and, therefore, avers, that Defendant appreciated the benefit. 41. Plaintiff believes, and, therefore, avers, that Defendant was unjustly enriched by not making the monthly installments as promised.. 42. Plaintiff believes, and, therefore, avers, that it would be unconscionable for Defendant to not be required to pay Plaintiff the past due monthly installments under the aforementioned Promissory Note. WHEREFORE, Plaintiff, William D. Morrow, respectfully requests that this Honorable Court enter Judgment in his favor and against Defendant, 875 Market Street, LLC, in the amount of $49,058.00 plus interest at 8% and attorneys' fees. Additionally, Plaintiff, William D. Morrow, respectfully asks this court invoke the equitable remedy of corporate veil-piercing against Defendant, 875 Market Street, LLC, and hold its members personally liable for its default. COUNT IV -BREACH OF CONTRACT WILLIAM D. MORROW v. DAVID G. KENNERLY 43. Plaintiff, William D. Morrow, incorporates and makes part of this Count paragraphs 1 through 42 of this Complaint as if fully set forth. 44. Defendant, David G. Kennerly, entered into a contract, in the form of a Promissory Note was entered into on September 16, 2005 in the amount of $50,000.00 payable in monthly installments, with interest at a yearly rate of 8.00%, at the monthly rate of $606.64. 45. The obligation of Defendant, David G. Kennerly, to Plaintiff, William D. Morrow, is in default. 46. Plaintiff, William D. Morrow, is owed payments plus late fees for the following months, October 2005, May 2007 and July 2007. 47. Plaintiff, William D. Morrow, is owed payment for the following month, August 2007. 48. Defendant, David G. Kennerly, has breached his contract with Plaintiff. 49. The Defendants owe the following: Principle = $45,097.57 Accrued Interest = $1,018.09 Late Fees = $606.60 Attorneys' Fees = $2,336.11 Total = $49,058.00 50. Plaintiff believes, and, therefore, avers, that Defendant, David G. Kennerly, falsely and fraudulently omitted facts that were known to him or should have been known to him by failing to disclose that Defendant would not or may not be able to and/or capable of make the requisite monthly installments due under the aforementioned Promissory Note. 51. The actions of the Defendant, David G. Kennerly, had a tendency to and did, in fact, deceive Plaintiff. 52. Plaintiff believes, and, therefore, avers, that Defendant, David G. Kennerly, acted with reckless indifference to the truth in dealing with Plaintiff. 53. Plaintiff justifiably relied on the fraudulent statements, actions and concealment of the Defendant, David G. Kennerly. WHEREFORE, Plaintiff, William D. Morrow, respectfully requests that this Honorable Court enter Judgment in his favor and against Defendant, David G. Kennerly, in the amount of $49,058.00 plus interest at 8% and attorneys' fees. COUNT V -NEGLIGENCE WILLIAM D. MORROW v. DAVID G. KENNERLY 54. Plaintiff, William D. Morrow, incorporates and makes part of this Count paragraphs 1 through 51 of this Complaint as if fully set forth. 55. Plaintiff believes, and, therefore, avers that Defendant, David G. Kennerly, as a sophisticated business person owed a duty of care to Plaintiff not to mislead Plaintiff as to his ability and desire to make the requisite monthly installments under the aforementioned Promissory Note. 56. Plaintiff reasonably relied upon the assertions of Defendant, David G. Kennerly, insofar as Defendant, 875 Market Street, LLC, was a legitimate, honest, productive, limited liability company at all times material hereto. 57. Plaintiff believes, and therefore avers, that despite actual or constructive knowledge that Defendant, 875 Market Street, LLC, was not a legitimate, honest, productive, limited liability company, Defendant, David G. Kennerly, represented Defendant, 875 Market Street, LLC, as such without warning to Plaintiff. 58. Plaintiff believes, and, therefore, avers, that Defendant, David G. Kennerly, falsely and fraudulently omitted facts that were known to him or should have been known to him by failing to disclose the fact that Defendant, 875 Market Street, LLC, was not a legitimate, honest, productive, LLC at all times material hereto. 59. The actions of the Defendant had a tendency to and did, in fact, deceive Plaintiff. 60. Plaintiff believes, and, therefore, avers, that Defendant acted with reckless indifference to the truth in dealing with Plaintiff. 61. Plaintiff believes, and, therefore, avers, that Defendant utilized willful, wanton, malicious and intentional fraud, negligence, misrepresentation in contracting for the terms of the aforementioned Promissory Note. 62. Plaintiff believes, and, therefore, avers, that Defendant had actual knowledge of the negligent nature of his actions, concealment and representations. 63. Plaintiff justifiably relied on the negligent representations, statements, actions and concealment of the Defendant. 64. By way of Defendant, David G. Kennerly's, action, Plaintiff has incurred actual damages in the amount demanded below and averred in detail within this Complaint. WHEREFORE, Plaintiff, William D. Morrow, respectfully requests that this Honorable Court enter Judgment in his favor and against Defendant, David G. Kennerly, in the amount of $49,058.00 plus interest at 8% and attorneys' fees. COUNT VI -UNJUST ENRICHMENT WILLIAM D. MORROW v. DAVID G. KENNERLY 65. Plaintiff, William D. Morrow, incorporates and makes part of this Count paragraphs 1 through 64 of this Complaint as if fully set forth. 66. Plaintiff believes, and, therefore, avers, that by way of not making the aforementioned requisite monthly installments and continuing to occupy and use the premises located at and known as 875 Market Street, Lemoyne, Cumberland County, Pennsylvania for Defendant's personal/private and/or business use, this conveyed a benefit unto Defendant whereby Defendant realized the gain and use of the aforementioned money without making the requisite installments to Plaintiff. 67. Plaintiff believes, and, therefore, avers, that Defendant appreciated the benefit. 68. Plaintiff believes, and, therefore, avers, that Defendant was unjustly enriched by receiving the money and then not performing the services contracted for. 69. Plaintiff believes, and, therefore, avers, that it would be unconscionable for Defendant to not be required to pay Plaintiff the past due monthly installments under the aforementioned Promissory Note. WHEREFORE, Plaintiff, William D. Morrow, respectfully requests that this Honorable Court enter Judgment in his favor and against Defendant, David G. Kennerly, in the amount of $49,058.00 plus interest at 8% and attorneys' fees. COUNT VII -BREACH OF CONTRACT WILLIAM D. MORROW v. MICHAEL A. CARRUCOLI 70. Plaintiff, William D. Morrow, incorporates and makes part of this Count paragraphs 1 through 69 of this Complaint as if fully set forth. 71. Defendant, Michael A. Carrucoli, entered into a contract, in the form of a Promissory Note was entered into on September 16, 2005 in the amount of $50,000.00 payable in monthly installments, with interest at a yearly rate of 8.00%, at the monthly rate of $606.64. 72. The obligation of Defendant, Michael A. Carrucoli, to Plaintiff, William D. Morrow, is in default. 73. Plaintiff, William D. Morrow, is owed payments plus late fees for the following months, October 2005, May 2007 and July 2007. 74. Plaintiff, William D. Morrow, is owed payment for the following month, August 2007. 75. Defendant, Michael A. Carrucoli, has breached his contract with Plaintiff. 76. The Defendants owe the following: Principle = $45,097.57 Accrued Interest = $1,018.09 Late Fees = $606.60 Attorneys' Fees = $2,336.11 Total = $49,058.00 77. Plaintiff believes, and, therefore, avers, that Defendant, Michael A. Carrucoli, falsely and fraudulently omitted facts that were known to him or should have been known to him by failing to disclose that Defendant would not or may not be able to and/or capable of make the requisite monthly installments due under the aforementioned Promissory Note. 78. The actions of the Defendant, Michael A. Carrucoli, had a tendency to and did, in fact, deceive Plaintiff. 79. Plaintiff believes, and, therefore, avers, that Defendant, Michael A. Carrucoli, acted with reckless indifference to the truth in dealing with Plaintiff. 80. Plaintiff justifiably relied on the fraudulent statements, actions and concealment of the Defendant, Michael A. Carrucoli. WHEREFORE, Plaintiff, William D. Morrow, respectfully requests that this Honorable Court enter Judgment in his favor and against Defendant, Michael A. Carrucoli, in the amount of $49,058.00 plus interest at 8% and attorneys' fees. COUNT VIII -NEGLIGENCE WILLIAM D. MORROW v. MICHAEL A. CARRUCOLI 81. Plaintiff, William D. Morrow, incorporates and makes part of this Count paragraphs 1 through 80 of this Complaint as if fully set forth. 82. Plaintiff believes, and, therefore, avers that Defendant, Michael A. Carrucoli, as a sophisticated business person owed a duty of care to Plaintiff not to mislead Plaintiff as to his ability and desire to make the requisite monthly installments pursuant to the aforementioned Promissory Note. 83. Plaintiff reasonably relied upon the assertions of Defendant, Michael A. Carrucoli, insofar as Defendant, 875 Market Street, LLC, was a legitimate, honest, productive, limited liability company at all times material hereto. 84. Plaintiff believes, and therefore avers, that despite actual or constructive knowledge that Defendant, 875 Market Street, LLC, was not a legitimate, honest, productive, limited liability company, Defendant, Michael A. Carrucoli, represented Defendant, 875 Market Street, LLC, as such without warning to Plaintiff. 85. Plaintiff believes, and, therefore, avers, that Defendant, Michael A. Carrucoli, falsely and fraudulently omitted facts that were known to him or should have been known to him by failing to disclose the fact that Defendant, 875 Market Street, LLC, was not a legitimate, honest, productive, LLC at all times material hereto. 86. The actions of the Defendant had a tendency to and did, in fact, deceive Plaintiff. 87. Plaintiff believes, and, therefore, avers, that Defendant acted with reckless indifference to the truth in dealing with Plaintiff. 88. Plaintiff believes, and, therefore, avers, that Defendant utilized willful, wanton, malicious and intentional fraud, negligence, misrepresentation in negotiating for the terms of the aforementioned Promissory Note. 89. Plaintiff believes, and, therefore, avers, that Defendant had actual knowledge of the negligent nature of his actions, concealment and representations. 90. Plaintiff justifiably relied on the negligent representations, statements, actions and concealment of the Defendant. 91. By way of Defendant, Michael A. Carrucoli's, action, Plaintiff has incurred actual damages in the amount demanded below and averred in detail within this Complaint. WHEREFORE, Plaintiff, William D. Morrow, respectfully requests that this Honorable Court enter Judgment in his favor and against Defendant, Michael A. Carrucoli, in the amount of $49,058.00 plus interest at 8% and attorneys' fees. COUNT IX -UNJUST ENRICHMENT WILLIAM D. MORROW v. MICHAEL A. CARRUCOLI 92. Plaintiff, William D. Morrow, incorporates and makes part of this Count paragraphs 1 through 91 of this Complaint as if fully set forth. 93. Plaintiff believes, and, therefore, avers, that by way of not making the aforementioned requisite monthly installments and continuing to occupy and use the premises located at and known as 875 Market Street, Lemoyne, Cumberland County, Pennsylvania for Defendant's personal/private and/or business use, this conveyed a benefit unto Defendant whereby Defendant realized the gain and use of the aforementioned money without making the requisite installments to Plaintiff. 94. Plaintiff believes, and, therefore, avers, that Defendant appreciated the benefit. 95. Plaintiff believes, and, therefore, avers, that Defendant was unjustly enriched by receiving the money and then not performing the services contracted for. l I t 1 , 1 96. Plaintiff believes, and, therefore, avers, that it would be unconscionable for Defendant to not be required to pay Plaintiff the past due monthly installments under the aforementioned Promissory Note. WHEREFORE, Plaintiff, William D. Morrow, respectfully requests that this Honorable Court enter Judgment in his favor and against Defendant, Michael A. Carrucoli, in the amount of $49,058.00 plus interest at 8% and attorneys' fees. Dated: ~ ~' ~'.7 ~~ p , Respect~lly~ Submitted, '' I1 Darrel C. Dethlefs, Esquire Attorney Id. No.: 58805 2132 Market Street Camp Hill, PA 17011 (717) 975-9446 i { i VERIFICATION I hereby verify that the statements of fact made in the foregoing documents are true and correct to the best of my knowledge, information and belief. I understand that any false statements therein are subject to the criminal penalties contained in 18 Pa C. S. Section 4904, relating to unsworn falsification to authorities. . 8~~ °~Z cam Date. ~ William D. Morrow ~xh~b~~ f~ .~ ~'' NOTE September 16, 2005 875 Market Street, Lemoyne, Cumberland County, Pennsylvania 1. BORROWER'S PROMISE TO PAY In return for a loan that we have received, we promise to pay U.S. $50,000.00 (this amount is called "principal"), plus interest, to the order of the Lender. The Lender is WILLIAM D. MORROW. We understand that the Lender may transfer this Note. The Lender or anyone who takes this Note by transfer and who is entitled to receive payments under this Note is called the "Note Holder." 2. INTEREST Interest will be charged on unpaid principal until the full amount of principal has been paid. I will pay interest at a yearly rate of 8.00%. The interest rate required by this Section 2 is the rate I will pay both before and after any default described in Section 6(B) of this Note. 3. PAYMENTS (A) Time and Place of Payments We will pay principal and interest by making payments every month. We will make my monthly payments on the 1st day of each month beginning October 1, 2005. I will make these payments every month until I have paid all of the principal and interest and any other charges described below that I may owe under this Note. My monthly payments will be applied to interest before principal. If, on September 1, 2010, I still owe amounts under this Note, I will pay those amounts in full on that date, which is called the "Maturity Date." I will make my monthly payments at 1150 Siddonsburg Road, Mechanicsburg, Pennsylvania 17055. or at a different place if required by the Note Holder. - (B) Amount of Monthty Payments The monthly payment will be in the amount of U.S. $606.64. 4. BORROWER'S RIGHT TO PREPAY We have the right to make payments of principal at any time before they are due. A payment of principal only is known as a "prepayment". When we make a prepayment, we will tell the Note Holder in writing that we are doing so. We may make a full prepayment or partial prepayments without paying any prepayment' charge. The Note Holder will use all of my prepayments to reduce the amount of principal that we owe under this Note. If we make a partial prepayment, there will be no changes in the due date or in the amount of my monthly payment unless the Note Holder agrees in writing to those changes. 5. LOAN CHARGES If a law, which applies to this loan and which sets maximum loan charges, is finally interpreted so that the interest or other loan charges collected or to be collected in connection with this loan exceed the permitted limits, then (i) any such loan charge shall be reduced by the amount necessary to reduce the charge to the permitted limit; and (ii) any sums already collected from me which exceeded permitted limits will be refunded to me. The Note Holder may choose to make this refund by reducing the principal we owe under this Note or by making a direct payment to me. If a refund reduces principal, the reduction will be treated as a partial prepayment. 6. BORROWER'S FAILURE TO PAY AS REQUIRED (A) Late Charge for Overdue Payments If the Note Holder has not received the full amount of any monthly payment by the end of fifteen (15) calendar days after the date it is due, I will pay a late charge to the Note Holder. The amount of the charge will be 5% of my overdue payment of principal and interest. I will pay this late charge promptly but only once on each late payment. (B) Default If I do not pay the full amount of each monthly payment on the date it is due, I will be in default. (C) Notice of Default If I am in default, the Note Holder may send me a written notice telling me that if we do not pay the overdue amount by a certain date, the Note Holder may require me to pay immediately the full amount of principal which has not been paid and all the interest that we owe on that amount. That date must be at least 30 days after the date on which the notice is delivered or mailed to me. (D) No Waiver By Note Holder Even if, at a time when we are in default, the Note Holder does not require us to pay immediately in full as described above, the Note Holder will still have the right to do so if we are in default at a later time. . - ' ~' .. (E) Payment of Note Holder's Costs and Expenses If the Note Holder has required me to pay immediately in full as ~ described above, the Note Holder will have the right to be paid back by me for all of its costs and expenses in enfoning this Note to the extent not prohibited by applicable law. Those expenses include, for example, reasonable attorney's fees. 7. GIVING OF NOTICES Unless applicable law requires a different method, any notice that must be given to me under this Note will be given by delivering it or by mailing it by first class mail to me at the Property Address above or at a different address if I give the Note Holder a notice of my different address. Any notice that must be given to the Note Holder under this Note will be given by mailing it by first class mail to the Note Holder at the address stated in Section 3(A) above or at a different address if we are given a notice of that different address. 8.OBLIGATIONS OF PERSONS UNDER THIS NOTE If more than one person signs this Note, each person is fully and personally obligated to keep all of the promises made in this Note, including the promise to pay the full .amount owed. Any person who is a guarantor, surety or endorser of this Note is also obligated to do these things. Any person who takes over these obligations, including the obligations of a guarantor, surety or endorser of this Note, is also obligated to keep all of the promises made in this Note. The Note Holder may enforce its rights under this Note against each person individually or against all.of us together. This means that any one of us maybe required to pay all of the amounts owed under this Note. 9. WAIVERS We and any other person who has obligations under this Note waive the rights of presentment and notice of dishonor. "Presentment" means the right to require the Note Holder to demand payment of amounts due. "Notice of dishonor" means the right to require the Note Holder to give notice to other persons that amounts due have not been paid. - 10. UNIFORM SECURED NOTE This Note is a uniform instrument with limited variations in some jurisdictions. In addition to the protections given to the Note Holder under this Note, a Mortgage, Deed of Trust or Security Deed (the "Security Instrument"), dated the same date as this Note, protects the Note Holder from possible losses which might result if we do not keep the promises which we make in this Note. That Security Instrument describes how and under what conditions we may be required to make immediate payment in full of all amounts we owe under this Note. Some of those conditions are described as follows: Transfer of the Property or a Beneficial Interest in Borrower. If all or any part of the Property or any interest in it is sold or transferred (or if a beneficial interest in Borrower is sold or transferred and Borrower is npt a natural person) without Lender's prior written consent, Lender may, at its option, require immediate payment in full of all sums secured by this Security Instrument. However, this option shall not be exercised by Lender if exercise is prohibited by federal law as of the date of this Security Instrument. If Lender exercises this option, Lender shall give Borrower notice of acceleration. The votice shall provide a period of not less than 30 days from the date the notice is delivered or mailed within which Borrower must pay all sums secured by this Security Instrument. If Borrower fails to pay these sums prior to the expiration of this period, Lender may invoke any remedies permitted by this Security Instiwnent without further notice_or demand on Borrower. WITNESS THE HAND(~f CND SEAL(S) OF THE UNDERSIGNED. 875 MARKET STREET LLC By \~~ ~ /~ DAVID G. KENNERLY, ember `,~.Z ~ B Y MICHAEL A. CA COLI~ c~ ; _ s ~• ~ ~_._ C:::7 '` ~ ~ d _ ~~, -~ ~ ~ ~~ ~o C~ -~ ---~ T .~'.~ ,_,';~ a J ~~7 __I~~ ~.~ .. rtl ~;_, {, WILLIAM D. MORROW, Plaintiff v. 875 MARKET STREET, LLC, DAVID G. KENNERLY, and MICHAEL A. CARRUCOLI Defendants. To the Prothonotary: IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-4758 CIVIL TERM PRAECIPE Please mark the above captioned case discontinued wi~,hQut prejudice. Date: ~ ~ (1 ~ ~ Darre111C:'Dethlefs, Esquire Attorney for Plaintiff Law Office of Darrell C. Dethlefs P.O. Box 368 2132 Market Street Camp Hill, PA 17011 (717) 975-9446 Attorney Id. No.: ra !!'rt r ~ , t'rt -' *? ~ . t9 ~ ' _.._ erg<~-~ rat ` " ~ ~ ~_'~' yp ~ -r r~.e, r 1•~• R. ITe