Loading...
HomeMy WebLinkAbout07-5373 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY', PENNSYLVANIA FINANCIAL PACIFIC LEASING, LLC CIVIL ACTION 3455 South 344 Way, Suite 300 . Federal Way, Washington 98001 No. d ~ - 637.3 c- j ~ ~ ( }`~'" Plaintiff v CRIDER EXCAVATING, INC. . 555 Bosler Avenue Lemoyne, Pennsylvania 17043 . and . RICHARD CRIDER 47 Fleischer Road . Marysville, Pennsylvania 17053 and . DONNA CRIDER . 47 Fleischer Road Marysville, Pennsylvania 17053 Defendants NOTICE OF HEARING FOR SEIZURE, OF PROPERTY TO: CRIDER EXCAVATING, INC. 555 Boller Avenue Lemoyne, PA 17043 and RICHARD CRIDER 47 Fleischer Road Marysville, PA 17053 and DONNA CRIDER 47 Fleischer Road Marysville, PA 17053 You are hereby notified that: 369011-1 • Pennsylvania 17053, or at such other loclttion known to tend under the control of Defendants. 3. There exists probable validity to the claims of Plaintiff, as set forth in the copy of the verified Complaint, attached hereto and as will be further established at the hearing thereon, and a Writ of Seizure should be issued, pursuant to Pa. R.C.P. No. 1075.1(e), upon hearing hereon. WHEREFORE, Plaintiff moves this Honorable Court to schedule a hearing on the Motion of the Plaintiff for Issuance of Writ of Seizure, alad upon such hearing to direct the Prothonotary to issue a Writ of Seizure and grant such other, and fiuther relief as this Honorable Court may deem just and proper. LAMM, RLtBENSTONE ~,"E~VO~~Z & DAVID, LLC Date uric S. Steckerl, E~quire Attorneys for Plaintiff Attorney I.D. Nos. 66096 & 41628 3600 Horizon Blvd., Suite 200 Trevose, PA 19053 (215).638-9330 369011-1 yERIFICATIOx Tawni Altom, Litigation Specialist for Financial Pacific Leasing, LLC, being duly sworn according to law, deposes and says that she is a representative of the Plaintiff, and that she is authorized to make this Verification on behalf of Plaintiff; that the facts set forth in the foregoing Motion are true and correct to the best of her knowledge, information and belief; that the foregoing statements are made subject to the penalties of 18 Pa.C.S.A. §4904 related to unsworn falsifications to authorities. FINANCIAL PACIFIC LEASING, LLC By ~ ~- e Tawni Altom Litigation Specialist Date: IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA FINANCIAL PACIFIC LEASING, LLC CIVIL ACTION 3455 South 344 Way, Suite 300 Federal Way, Washington 98001 No. Plaintiff v CRIDER EXCAVATING, INC. 555 Bosler Avenue Lemoyne, Pennsylvania 17043 . and . RICHARD CRIDER 47 Fleischer Road Marysville, Pennsylvania 17053 and DONNA CRIDER 47 Fleischer Road Marysville, Pennsylvania 17053 . Defendants MEMORANDUM OF LAW IN SUPPORT OF ., PLAINTIFF'S MOTION FOR THE ISSUANCE OF A WRIT OF 5EIZURE Plaintiff, Financial Pacific Leasing, LLC ("Financial Pacific") pursuant to Rule 1075.1 of the Pennsylvania Rules of Civil Procedure, by its attorneys, Lamm Rubenstone Lesavoy Butz & David LLC, hereby provides the following Memorandum of Law in support of its Motion for Writ of Seizure: I. Factual Background For the sake of brevity, Financial Pacific incorporates the facts as set forth in its Complaint in Replevin as if fully set forth herein at length. II. Legal Argument The former procedure in Pennsylvania, known as the Writ. of Replevin with bond, was abolished following the United States Supreme Court''!s holding that it amounted to a deprivation of property without due process of law by den~!ing the right to a prior 369011-1 opportunity to be heard before chattels are taker from the possessor. Pazham v. Cortese, 407 US 67, 32 L Ed 2d 556, 92 S Ct 1983, rehearing defied, 409 U.S. 902, 34 L.Ed 2d 165, 93 5.Ct 180;1 Compare Mitchell v. W.T. Grant Cd., 416 U.S. 600, 40 L.Ed 2d 406, 94 S.Ct. 1895 (1974)(establishing provisions for constitutional ex parte prejudgment seizure of property). Consequently, all actions of replevin are now commenced by complaint. 4 Goodrich-Amram 2d § 1075:3 (1991). Due to the fact that a final hearing on the Complaint in Replevin may be months away, the Pennsylvania Rules of Civil Procedure have been adapted to provide for a procedure whereby the Court will order the Defendants to surrender possession of the collateral, before a final hearing on the complaint. In order to cause a prejudgment Writ of Seizure to be issued, the plaintiff must elect one of the two remedies: (1) seizure after notice and hearing, or (2) seizure ex parte on allowance by the court. 4 Goodrich-Amram 2d § 1075:3 (1991). The Plaintiff herein is seeking a prejjudgment Writ of Seizure after notice and hearing. In deciding whether a Writ of Seizure should issue, the court must determine from the complaint, affidavits, testimony, admissions or other'evidence that may be received whether the plaintiff has established the probable validity of his or her claim. Hamilton Bank v. Seiger, 22 D&C 3d 534, 537 (Berks Cty. 1982). The procedure for the issuance of a prejudgment Writ of Seizure after notice and hearing is set forth in Pa.R.C.P. 1075.1. Pa.R.C.P. 1075.1(a) provides, in pertinent part, that the plaintiff "may move for the issuance of Writ of Seizure whether or not the complaint has been served. The Court shall fix the date ~nd time of the hearing, which ' T'he Parham case was consolidated and decided simultaneously in the same opinion with Fuentes v. Shevin, 407 US 67, 32 L Ed 2d 556, 92 S Ct 1983, rehearing denied, 409 U.S. 902, ~4 L.Ed 2d 165, 93 S.Ct 180. 369011-1 shall not be less than 48 hours after filing the motion for the Writ of Seizure." Pa.R.C.P. 1075.1(a). The motion and notice of hearing shall be served "in the manner provided for the service of a writ of summons in assumpsit or, if that is not possible, then by any other means reasonably calculated to give notice." Pa.R.C.P. 1075.1(d). Moreover, if the Court is satisfied that notice has been given "or a reasonable attempt to give notice has been made," it shall proceed upon the motion, the other pleadings, and any other evidence. Pa.R.C.P. 1075.1(e). In the instant case, there will be service of notice of hearing, in the form provided by Pa.R.C.P. 1353, upon the Defendants at their last known addresses, as stated in the Complaint, via hand delivery, certified mail and regular mail. Each of these methods of notice comply with the mandates of Pa.R.C.P. 1075.1(d) and the combination of all three are certain to ensure that the Defendants receive adequate notice of the hearing. Pa.R.C.P. 1075.1(e) provides, in pertinent part, that the hearing on Plaintiffs Motion for Issuance of a Writ of Seizure shall take place whether or not the Defendants or other person in possession of the property appear, and that "if Plaintiff has established the probable validity of its claim," the Court may order that a Writ of Seizure be issued. Pa.R.C.P. 1075.1(e)(emph. added). In the instant case, Financial Pacific, has the immediate right to possession of its goods and equipment as described on the Writ of Seizure attached hereto (the "Equipment"), because the subject Lease and Guarantees signed by the Defendants all indicate that Financial Pacific is the owner of the Equipment and Financial Pacific has the right to reclaim the Equipment upon breach of the Lease alhd Guarantees. III. Conclusion 369011-1 w ~ ~ 1. Plaintiff has commenced an action in Replevin and has filed a Motion for Seizure of certain leased equipment ("Equipment") more specifically described in the Complaint. A copy of the Complaint and Motion are attached to this Notice; 2. There will be a Hearing on this Motion on 2007 at _.M. in Courtroom ,Cumberland County Courthouse, One Courthouse Square, Cazlisle, PA 17013. 3. You may appear in person or by a lawyer at the time and place set forth above or file written objections, setting forth your reasons why the Equipment should not be seized; and 4. Your failure to appeaz at the Heazing may result in the seizure of the Equipment claimed by Plaintiff before a final decision in this case. Date: d 369011-1 Attorneys for Plaintiff Attorney I.D. Nos. 66096 & 41628 3600 Horizon Blvd., Suite 200 Trevose, PA 19053 (215) 638-9330 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNT'S, PENNSYLVANIA FINANCIAL PACIFIC LEASING, LLC CIVIL ACTION 3455 South 344 Way, Suite 300 Federal Way, Washington 98001 No. Plaintiff . v CRIDER EXCAVATING, INC. 555 Bosler Avenue Lemoyne, Pennsylvania 17043 and : RICHARD CRIDER 47 Fleischer Road Marysville, Pennsylvania 17053 and DONNA CRIDER 47 Fleischer Road Marysville, Pennsylvania 17053 Defendants ORDER AND NOW, this day of , 2007, upon consideration of the Motion of Plaintiff, Financial Pacific Leasing, LLC, for the issuance of a Writ of Seizure, and upon hearing thereon, it is ORDERED that the Prothonotary shall forthwith issue and execute a Writ of Seizure (the "Writ") directed to the Sheriff of Cumberland County in the form attached hereto; and it is further ORDERED that the Sheriff shall forthwith serve the Writ and, if necessary, is directed to break into the premises located at 555 Bosler Avenue, Lemoyne, Peansylvania 17043, or 47 Fleischer Road, Marysville, Pennsylvania 17053, or wherever else the leased equipment ("Equipment") majy be located in order to effect seizure of the Equipment, and make the same available fob immediate possession by the Plaintiff; and it is further 369011-1 r " 1 ORDERED that the Prothonotary shall issue and execute a Writ of Seizure directed to the Sheriff of Cumberland or any other County in Pennsylvania where said Equipment shall be found upon Affidavit of Plaintiff in order to affect seizure of the Equipment, and make same available for possession by the Plaintiff; and it is further ORDERED that the Plaintiff shall not be required to post a bond as set forth in the Pennsylvania Rules of Civil Procedure. BY THE COURT: J. 369011-1 .~ .. • IN THE COURT OF CdMMON PLEAS CUMBERLAND COUNT, PENNSYLVANIA FINANCIAL PACIFIC LEASING, LLC CNIL ACTION 3455 South 344 Way, Suite 300 Federal Way, Washington 98001 No. Plaintiff v CRIDER EXCAVATING, INC. 555 Bosley Avenue . Lemoyne, Pennsylvania 17043 . and . RICHARD CRIDER . 47 Fleischer Road . Marysville, Pennsylvania 17053 and DONNA CRIDER . 47 Fleischer Road . Marysville, Pennsylvania 17053 Defendants WRIT OF SEIZURE TO THE SHERIFF OF CUMBERLAND COUNTY: You are directed to seize the following property located at 555 Bosley Avenue, Lemoyne, Pennsylvania 17043, or 47 Fleischer Road, Marysville, Pennsylvania 17053, or wherever else the leased equipment ("Equipment") may be located, and to make the Equipment available to Plaintiff: One (1)1995 Mack CH613 truck, VIN # 1 M1AA 18YOXW 114282 If the Equipment is found in the possession of anyone not already a Defendant, you are directed to add him as a Defendant, and to notify him that he has been added as a Defendant and is required to defend the action. Date of Writ: Prothonotary By: (Seal) Deputy 369011-1 IN THE COURT OF CbMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA FINANCIAL PACIFIC LEASING, LLC CIVIL ACTION 3455 South 344 Way, Suite 300 Federal Way, Washington 98001 No. Plaintiff v CRIDER EXCAVATING, INC. 555 Bosler Avenue . Lemoyne, Pennsylvania 17043 : and , RICHARD CRIDER . 47 Fleischer Road : Marysville, Pennsylvania 17053 . and , DONNA CRIDER , 47 Fleischer Road . Marysville, Pennsylvania 17053 . Defendants PLAINTIFF'S MOTION FOIL THE ISSUANCE OF A WRIT OF SEIZURE Pursuant to Rule 1075.1 of the Pennsylvania Rules of Civil Procedure, Plaintiff by its attorneys, Lamm Rubenstone Lesavoy Butz & David LGC, moves this Honorable Court for the issuance of a Writ of Seizure and assigns they following reasons therefor: 1. The Complaint in Replevin filed with the Prothonotary by Plaintiff sets forth the facts upon which Plaintiff's claim of and entitlement to possession of the leased equipment ("Equipment") described therein is based. A trace and correct copy of such Complaint is attached hereto, made a part hereof, and marked Exhibit "A. " 2. Plaintiff believes, and therefore avers, that the Equipment is located at either at the business address of 555 Bosler Avenue, Lemo~rle, Pennsylvania ] 7043, or at the individual defendants' residence address of 47 Fleische>F Road, Marysville, 369011-1 w ~' • Financial Pacific respectfully requests that a heating be scheduled on its Motion for the Issuance of a Writ of Seizure. Upon such hearing being held, the Plaintiff respectfully requests that the Court order the Prothonotaty to issue a Writ of Seizure against the Defendants and in favor of the Plaintiff, and that the Sheriff be directed to serve the writ and make possession of the Equipment available to Plaintiff. Respectfully Submitted, LAMM, Rl~JBENSTONE LE~OY ~ DAVID, LLC Date: c>7 Eric ~;5. Steckerl, Esquire Atto~rleys for Plaintiff Attotney I.D. Nos. 66096 & 41628 3600 Horizon Blvd., Suite 200 Trevpse, PA 19053 (215 638-9330 369011-1 ,- t~ ~ ~~ s> 8 ~ x ~~ ~' -~ -~~ ~„ ,~- ~ -~ ~, ~._ ~~: - o a ~, ~: ~ ~ ? .~. • 1 SEP 112DD~ p~~ IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA FINANCIAL PACIFIC LEASING, LLC CIVIL ACTION 3455 South 344 Way, Suite 300 Federal Way, Washington 98001 No. 0') - 5373 Plaintiff v . CRIDER EXCAVATING, INC. 555 Bosler Avenue . Lemoyne, Pennsylvania 17043 and . RICHARD CRIDER . 47 Fleischer Road . Marysville, Pennsylvania 17053 and . DONNA CRIDER . 47 Fleischer Road Marysville, Pennsylvania 17053 Defendants (,;i~-l Terr, ORDER AND NOW, this day of 2007, upon ~O consideration of Plaintiff's Motion for the Issuance of a Writ of Seizure, ' •~ ORDERED that a Hearing shall be held on ~ ~ at dd .M. in Courtroom ~_, Cumberland County Courthouse, One Courthouse Squaze, Cazlisle, Pennsylvania 17013, to determine whether this Court shall order a Writ of Seizure to be issued before a final decision is rendered upon Plaintiff's Complaint in Replevin, and it is further ORDERED that Plaintiff shall personally serve Defendants Crider Excavating, Inc., Richazd Crider and Donna Crider at their last known addresses as set forth in the Complaint, a copy of all Pleadings and the pertainine to the action in Replevin in 369011- of Writ of Seizure, captioned maftter. M~.s+[~ i J. ~~~~~c~ ~~:~ ~~~ ~~~ ~~ ~,~~. ~?.~ SHERIFF'S RETURN - OUT OF COUNTY ` CA$E N0: 2007-05373 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND FINANCIAL PAACIFIC LEASING INC VS CRIDER EXCAVATING INC ET AL R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named RESPONDANT to wit: CRIDER RICHARD but was unable to locate Him deputized the sheriff of PERRY serve the within NOTICE OF HEARING County, Pennsylvania, to On October 11th 2007 this office was in receipt of t attached return from PERRY Sheriff's Costs: So answer _ Docketing 6.00 ~ ''~~'`'~--~"' Out of County 9.00 _/,__~---_ Surcharge 10.00 R. Thomas Kline Dep Perry County 92.80 Sheriff of Cumberland County Postage 1.72 119.52 ~/ ~o f 30% 7 10/11/2007 LAMM RUBENSTONE LESAVOY BUTZ Sworn and subscribe to before me this day of in his bailiwick. He therefore A.D. SHERIFF'S RETURN - OUT OF COUNTY CASE N0: 2007-05373 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND FINANCIAL PAACIFIC LEASING INC VS CRIDER EXCAVATING INC ET AL R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named RESPONDANT to wit: but was unable to locate Her deputized the sheriff of PERRY serve the within NOTICE OF HEARING County, Pennsylvania, to On October 11th 2007 this office was in receipt of the attached return from PERRY Sheriff's Costs: So answers ~_ Docketing 6.00 ~ ~'' Out of County .00 Surcharge 10.00 R'. Thomas K ne .00 Sheriff of Cumberland County .00 16.0 0 / i a' 30 /~ ~ ~- 10/11/2007 LAMM RUBENSTONE LESAVOY BUTZ Sworn and subscribe to before me this day of in his bailiwick. He therefore A.D. IN THE COURT OF COMMON PLEAS OF Financial Pacific THE 41st JUDICIAL DISTRICT OF PENNSYLVANIA, Leasing LLC PERRY COUNTY BRANCH Versus ~ Richard Crider and Donna Crider No. 2007-5373 Cumbe~~~d B0 " SHERIFF'S RETURN And now September 24 , 2007: Served the within name Richard Crider the defendant(s) named herin, personally at his place of residence in Rye Twp-47 Fleisher Rd. Marysville, PA 17053 Perry County, PA, onSeptember 24, 2007 at 6:42 o'clock PM by handing to Richard Crider, Defendant 1 true and attested copy(ies) of the within Notice & Complaint and made known to him the contents thereof Sworn and subscribed to before me this ~b~w/ da of ' ~-Pj0'7 So answers Y , Aaron D. Richards ~:~~~ ~.~"~ Deputy Sheriff of Perry County NOTARIAL SEAL MARGARET F. FLICKINGER, NOTARY PUBLIC BLOOMFIELD BOP,0., PERRY COUNTY MY COMMISSION EXPIRES FEB. 16, 2008 Financial Pacific IN THE COURT OF COMMON PLEAS OF THE 41st JUDICIAL DISTRICT OF PENNSYLVANIA, Leasing LLC PERRY COUNTY BRANCH Versus Richard Crider and Donna Crider No. 2007-5373 Cumbe~an~ ~ " SHERIFF'S RETURN And now September 24 , 2007: Served the within name Donna Crider the defendant(s) named herin, personally at her place of residence in Rye Twp-47 Fleisher Rd. Marysville, PA 17053 Perry County, PA, on September 24, 2007 at 6:42 o'clock PM by handing to Richard Crider, Defendants Husband 1 true and attested copy(ies) of the within Notice & Complaint and made known to him the contents thereof Sworn and subscribed to before me this ~~`~ day of (~-~~~~ ~~ I, So answers Aaron D. Richards r , (~ ~; ~ Deputy Sheriff of Perry County I NOTARIAL SEAL MARGARET F. FLICKINGER, NOTARY PUBLIC BLOOMFIELD BORO., PERRY COUNTY MY COMMISSION EXPIRES FEB. 16, 2008 In The Court of Common Pleas of Cumberland County, Pennsylvania Financial Pacific LQasing LLC VS. Crider Excavating Inc ~t al SERVE: Richard Crider No , 07-5373 civil Now, sapt~nbQr 17, 2007 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of PQ.,rry County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Please mail return of service to Cumberland County Sheriff. Thank you. Affidavit of Service Now, , 20 , at within upon at by handing to a copy of the original and made known to So answers, the contents thereof. ~~.a Depwiy Sheriff of Sworn and subscribed before me this day of , 20 o'clock M. served the COSTS SERVICE _ MILEAGE _ AFFIDAVIT ~,,.~, County, PA In The Court of Common Pleas of Cumberland County, Pennsylvania Financial Pacific LQasing LLC VS. Crider Excavating Inc Qt al SERVE: Donna Crider No. 07-5373 civil Now, s~tsnber 17, 2007 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of P~ County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. ~~ ~ii~" ..~~...P Sheriff of Cumberland County, PA Please mail return of service to Cumberland County Sheriff. Thank you. Affidavit of Service Now, within upon at by handing to a and made known to So answers, the contents thereof. ~XJ , ~,~~,Sheriff of ~~~~ County, PA Sworn and subscribed before me this day of , 20 copy of the original COSTS SERVICE _ MILEAGE _ AFFIDAVIT 20 , at o'clock M. served the s ~~t~ of ~Curr~~ert ~v° ~~~ R. THOMAS KLINE Sherifs EDWARD L. SCHORPP Solicitor OFFICE OF THE SHERIFF One Courthouse Square Carlisle, Pennsylvania 17013 BONNY R. ANDERSON Chief Deputy JODY S. SMITH Real Estate Deputy Please mail return of service to Cumberland County Sheriff. Thank you. T0: Hon. Carl Nace ~ ~; Financial Pacific Leasing LLC Perry County Sheriff ~ VS Crider Excavating Inc et al 07-5373 civil Dear Sheriff: Enclosed please find Notice of Hearing for Seizure of Property, Order 1.~ Richard Crider to be served upon 2• Donna Crider 47 Fleischer Road Marysville,. PA 17053 in your County. Kindly make service thereof and send us your return of service. . Very trulys, ~~ ~~~~ R. 'Thomas Kline, Sheriff Cumberland County, Pennsylvania Enclosures: ' CASE N0: 2007-05373 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND FINANCIAL PAACIFIC LEASING INC VS CRIDER EXCAVATING INC ET AL DAVID MCKINNEY Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within NOTICE OF HEARING was served upon (''R TT1RR FX('A~TATTNC~ TNC" the RESPONDANT at 1530:00 HOURS, on the 24th day of September, 2007 at 555 BOSLER AVENUE LEMOYNE, PA 17043 KIM KENGJEL, SECRETARY by handing to ADULT IN CHARGE a true and attested copy of NOTICE OF HEARING together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 14.40 Affidavit . 00 Surcharge 10.00 /~/30~©~~ .00 42.40 Sworn and Subscibed to before me this day So Answers: R. Thomas Kline 10/11/2007 LAMM RUBENSTONE LESAVOY BUTZ By : ~' Deputy Sheriff of A.D.