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HomeMy WebLinkAbout76-1178~! LAW ~f fIC ES ~2ANK, GRCJSS & GASPER ~- ~ . WI00, INC., ~~>~' ~' f~ v. _ ~ - IN ~ RLAND COUNTY,~pE~SyLVAN?A CUN~E 1 N0. 1178 CIVIL TERM 1976 ENGLAND MOTORS, I1~G. , and _ _ = ~' ENGLAND LEASING, ZNC • , _ ~''~~' ~ ~ -.. REPLEVIN r~ =r ~ V ;w .•+ _~ i30TICE OF APPEAL a~ ...r ~~ «.r Notice is hereby given that WI00, Inc., plaintiff above named, hereby appeals to .the Superior Court of Pennsylvania from the Order entered in this matter on~_~he 2nd day of February, 1977. .~ . --W am -, . ro s s E.rank, Grow & Casper S•ait~ H, 1801 North Front Street Harrisburg, Pennsylvania .17102 Telephone No.: (717) 234-4931 Attorneys for Plaintiff .~ ~ _ :.C7 C7 " ~.~ t '~.. ~' ..~ i,ere unto ~c:t my hind Pa I ...`~.,` - . CCi:J;t ~t Carlisle, 14 ~~ ~-~ ~ .,, a~ ~ d3Y t ~` ~c~. ~~ - @rotbo~-ot~~d ~ c~ P'~. wa ~J e°iS•~j n~ ~.,..~ 'mtJ ~'y+~ _~ ~~ K-,4 -"""'./ Lam}. ~•~. V t 1 y ~~ 1 bb • t Among the Records and .Proceedings enrol led in the court of Common Pleas in and for the .! county of Cumberland _ in the Commonwealth of Pennsylvania ~Il No. 1171 October Term 1977 ~~ to No. 1178 Civil Term, 19 76 is contained the following: ~I COPY of 1~ppearance _ DOCKET ENTP~Y $25.50 Pd. Atty. W100, Inc. Gross 1178 vs. England Motors, Inc. and England Leasing, Inc. Entd. April 9, 1976 T. & E. Atty. $25.50 Sheriff's Costs: Docketing 10.75 Service 1.20 Dauphin Co. 13.95 Pd. by Atty.4-23-76 25.90 April 9, 1976, Complaint in Replevin filed returnable within twenty (20) days from date of service hereof. i~ April 9, 1976, Motion for Issuance of a Writ of Seizure and Order of Court, filed. I AND NOW, this 13th day of April, 1976, upon motion of William ~~ M. Gross, Esquire, attorney for the plaintiff, for the seizure of property described in the complaint, it is ordered that a hearing on said motion shall be held at 2:00 P.M. o'clock, on April 19, 1976, in Courtroom No. 2, Cumberland County Courthouse, Carlisle, Pa. ~I Clinton R. Weidner, J. April 20, 1976, Order of Court, filed. ~ AND NOW, April 19, 1976, after hearing, it is ordered and directed that a Writ of Replevin issue and possession of the vehicle) be delivered to W100, Inc. on posting of bond in the amount of $4,000.00. ~ By the Court, Clinton R. Weidner April 21, 1976, Replevin Bond and Affidavit of Surety, filed. April 23, 1976, Counterbond and Surety for Replevin Bond - Amount of Property Secured - $4,000.00, filed. April 28, 1976, Sheriff's Return, filed. May 10, 1976, Answer, filed. May 14, 1976, Affidavit of Service, filed. May 20, 1976, Order of Court, filed. AND NOW, May 19, 1976, at 10:10 a.m., it is ordered and directe that trial on the above matter be held at 10:00 a.m., June 17, 1976, in Courtroom No. 2, Courthouse, Carlisle, Pa. By the Court, Clinton R. Weidner, June 10, 1976, Hearing, filed. June 29, 1976, Hearing, filed. June 17, 1976, Order of Court, filed. AND NOW, June 17, 1976, the motion for an involuntary non-suit in favor of the defendants is granted on the basis that the option w not exercised as required by the contract; further, England Motors was not a party to the lease agreement and a remedy against them 1ie~ ~ in assumpsit. By the Court, Clinton R. Weidner, I~ July 6, 1976, Plaintiff's Exceptions to Decision of Trial ~IJudge, filed. 205'"' November 1, 1976, Please list the-- Exceptions to I~ecis~, i~iilt~n Bernstein, E~ J. J. iS Pr; ~cipe, filed. captioned case for argument on Plaintiff's rial Jud e. William Gross, Att for ~1{f. ;..for .Deus. Y- - 1 - •paTz~ 'T2add~ ~o aoz~oN 'LL6T '~Z ~z~nzga3 •r 'ogtu~g •H ~znT~s '~zno~ atl~ ~g •passiuis-rp azp abpnC T~zz~. actg. ~o uozszaap auk o~ suot~daoxa s,~~z~uT~Td auk 'a~~p szt~~. paTZ~' Tuido atty. ui pa~~~s suos~az auk zoo ' LL6T ' Z ~zpnzga3 'MOM QI~' •paTi~ '~zno~ Jo zapz0 pug uotu-rd0 'LL6T 'Z ~z~nzga3 8T 7, 9T ~STZ 9G 'c - Z - ~ ~ Commonwealth of Pennsylvania County of Cumberland ss I, Glenn R. Farner prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therein stated, wherein W100, Inc. Plaintiff, and - England Motors, Inc. and England Leasing, Inc Defendants as the same remains of record ~eforg~~elsa~~t ouT.atll~c~, 1,T 178 of Civil Term, A.D. 19~fi_ In TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court this 28th day of March _____ A. D., 19~Z C- / '~ -f. Prothonotary I, Dale F. ShucLhart President Judge of the Ninth Judicial District, composed of the ~gon~x._CQUnty of ~mhPrl and _ do certify that Glenn R Farner , by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is Prothonotary in and for said County of Cumberland in the Commonwealth of Pennsylvania, duly commissioned and qualified to all of whose acts as such full faith and credit are and ought to be given as well in Courts of judicature as elsewhere, and that the said record, certificate and attestation axe: in due~~ o law and ade by the proper officer. // `~ ~ ~~ -c..~~ ~, ~. Pnesident Judge Commonwealth of Pennsylvania County of Cumberland ~ I, Glenn R_ Farner ,Prothonotary of the Court of Common Pleas iai and for the said County, do certify that the Honorable Dale F. Shughart by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified ; to all whose acts as such full faith and ct•edit are and ought to be given, as well in Courts of judicature as elsewhere. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court this 2-8~_ day of Marc A.D. 19 77 Prothonotary L~ CERTIFICATE A~VD TRANSP~(ITTAC, OF RECORC UhipY R To the prothonot~:3ry of thA appellate court to which the within matter has been aYpealed: THE iiNQ~:;?5~~,*;~,D, ='s0±';:~';.u :~?.~ ~~ M of Common Pleas of i'~ ~~d; _ ~ ~ } ~ of the Court ~~~~ County, the said court being a court of record, da hereby certify that annexed hereto is a trop and correct cagy of the whole and entire record, includir,q_ an opinion of the co~~rt as required by Pa. R. A. p. 1.925, the origl.nal papers and exhibits, if any, on file, the transcript of the proceedings, if any, and the docket entries in the following matter: in comr~liance 'pith Pa, R. A. P, 1931 (c). The documents comprising the record have been numbered Eton tvo. 1 to a~a.:~2`,~,~, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising tha document. The date on Twhich t_~ie record has been transmitted to the Appellate court is ,.,_ , -- >`l~,1~4~ ~ ~ /. yv''- ~ ~/ ~.' i Prothono~ary [Seal of Court] WIGO , IivC . , Ii~1 1'H~J COURT OF CGI~~ON PLEAS OF Plaintiff CUI°1BL,P.LAND COUNTY, PENIISYLVANIA '~i ENGLAND MOTOI:S , INC . and ENGLAI~tD LEASING , INC . , Defendants P.EPLEVIN ~TnmTr~r' You Dave been sued in court. If you wish to defend against the claims set forth in the following pages, you r~zust take action within t~~aenty (20) Gays after tr:is com~~laint 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 ti~~ithout further notice for arty money claimed in the complaint or for any other claim or relief requested by the plaintiff. You stay lose money or property or other rights irnportar~t to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAti^TYER AT ONCE . IF YOU DO NOT ~L4VE A LL-`~:IYER OR CANNOT AFFORD ONE, GO TO OR TI~;LEPi30NE THE OFFICE' SET FOIZTII BELO'~J TO FIND OU'T G7HERE YOU CAN GET LEGAL iIELP . Nar~ie: Court Administrator Address: Third Floor Cumberland County Courthouse Carlisle, Pennsylvania Telephone: 249-1133 L•1I00 , I iv C , , `~ I'la.intiff V J , EiVGLt?~3D s~iOTUi~S , ITC , and L~Q[~LE"d3I~ LEASI~IU, IT1C. , 1)e~endants IiJ ~i'tIE COliRT OF COi~i01~T PLEAS OF CUA113ERLA~3D COL)NTY, PEiV~vSYLVANIA 130 , TE.,,~`i, 1976 I~EPLEVI~1 !''P1T.i'17T A TR7 ri 1, Plaintiff is T~iI00, Inc, , a Pennsylvania Cori oration with its principal solace of business located at 18U Yor: l.oau, Ca~lisl.e, Cumberland County, 'ennsylvaiZia, 2, ilefendant L,ngland Z~?otors, Inc, is a ?ennsylvania cor:~ora- toLz with a place of business located at 425 Souti~ Cai:;ero=_: Street, ~iarrisbur~;, i3auphin County, Pennsylvania. 3 , Jei:endant England Leasing, Inc, is a £'enLzsy lvania corporation with a place of business located at 425 Sout~z C~.i.:?er_on Street, Harrisburg, Dauphin County, Pennsylvania. 4, Tile property to be replevied is a 1974 Javelin, Ai~i~ coupe autor~lobile, manufacturer's serial number A4C798Z2177U7, having a -value of ~4,UOO,UU and, on information and belief, it is alleged that its present location is 425 South Carneron Street, iiarri sbur, ~'ennsylvania, 5, Plaintiff '~vI00, inc, is engaged in the business of operating radio station hT100 in Carlisle, Pennsylvania, and, in the course of this business, Plaintiff sells radio advertising to co~.ercial accounts and others. 6, Deenciant England ~~otors, Inc, is engaged in the business of selling new and used automobiles, particularly products o.~~ American :~_otors , • 7, Un information and belie f_, it is alleged that Defendant England Motors Leasing, Inc, is engaged in the business of leasing automobiles and is a corporate entity utilized by England Motors, Inc. iri connection with tiZe operation of the latter's business. &, Un or about January 1, 1974, the Plaintiff entered into an oral agreement with Defendant England Motors, Inc., the substance o~ wlzici ag-reer~rent provided as follows (a) 'T'hat England f7otors, Inc. would trade the vehicle described in Paragraph 4, above, to the Plaintiff in return for radio advertising to be broadcast by the Plaintiff in accordance with directions ofEngland Motors, Inc. (b) That the amount of advertising that ?'laintifi~ was to perform in exchange for the vehicle was %7421~.4<:, and the t~erormance was to take place over a period of tiL<<e as requested by England iotors, Inc. (c) That b1IU0, Inc. would sign a "ieasin~; ag;reera~ent" with Defendant England Leasing, Inc., a copy of which is marked Exhibit "A", attached hereto and incorporated herein, but that in lieu of the monthly payment and o~ the option payment set forth therein, the only obligation on the part of the Plaintiff Baas to broadcast radio advertising for England Motors, Inc. (d) That the vehicle would be placed imr~lediateiy in the possession of T~TIUU, Inc. but that title to the vehicle would oe held in the name of England Leasing, Inc, pending the completion of performance of the radio advertising, 9. At all tir~~es the Plaintiff dealt with England i~Iator_s, Inc. , and the signing of the "leasing agreement" was merely an accommodation to i:ngland ~~Iotors, Inc. -2- • 10. In accordance with the understanding between bJI00, Inc. and f.ngland ~~iotors, Inc. , as set forth in Paragraph. 8, above, the Plaintiff, from January, 1974, tizrough i~iarch, 1976, broadcast radio advertising for the Defendant, the charges for which are reasonable and proper and are set fortis as debit entries on Plaintiff`s statement of account, a copy of which is marked exhibit "B", attached hereto anti incorporated herein. In addition to the said debit entries tizere is a charge for the month of larch, 1976, in the al~lottnt of .244.00, whici~ charge would bring the balance due Plaintiff to :~i,356.49. 11. Of the agreed upon trade price for the vehicle of $7,420.48, the sum of $5,520,48 was set forth i.n the statement of account (exhibit "B") as a credit entry, leaving an additional $1,900.Ofl to be entered as another credit entry and which would offset the amount presently sho~,m to be due Plaintiff by England Motors, Inc. 12. The statement of account (exhibit "B"), with its balance of Y1,356.49 (see paragraph 10, above), also reflects a prior credit balance of $49.98 and various other charges made by L;ngland hIotors, Inc., to Plaintiff, as sho~m on said statement of account by reference to "invoices". 13. As of the filing of this Complaint, the Plaintiff remains obligated to perform radio advertising for England h-iotors, Inc, in the amount of $543.51, being the difference between the $1,900.00 credit to which England vlotors, Inc., is entitled and the $1,356.49 balance shown to be due on the statement of account. -3- ~ ~ 14. This transaction is similar to several prior transactions -between the parties in which automobiles were traded for radio advertising, and on one of those occasions a leasing agreei~ient also was used at the request of England Motors, Inc. A copy of that prior leasing agreement is marked Exhibit "C", attached hereto and incorporated herein. 15. On all previous dealings between tiie parties involving the exchange of radio advertising for automobiles, Plaintiff discharged its obligations solely by broadcasting radio advertising for England Motors, Inc., and at no time did Plaintiff make monthly cash payments, exercise "options" to buy, or make lu-np sum payments, nor did either iaefendant demand such. On all such occasions, Defendants recognized Plaintiff's right to possession until completion of file radio advertising in the agreed upon amount and thereupon transferred legal title to ~'laintiff. 16. With respect to the current transaction, copies of Plaintiff's statement of account were sent to Defendant England r~lotors, Inc. each month,each copy showing all entries made to that time, and no objection or question concerning such entries has been received by Plaintiff from said :defendant. 17. At all times Plaintiff WI00, Inc, has maintained its rigizt to continued possession of tine vehicle and its right to obtain title upon completion of the radio advertising. 1z3. On P~iarch 27, 197b, while the vehicle was parked in the driveway of Earold Swidler, president of the Plaintiff, it was removed without notice or warning of any kind. At the tir~le, the veizi_cle was locked and contained many valuable items belonging to tlarold Swidler, which items were removed from the premises with the -4- vehicle, On information and belief, Plaintiff alleges that the removal was made, or caused to be made, by agents of Defendant England riotors, Inc, and/or England Leasing, Inc. 19. At all times since the taking of the vehicle from the possession of the Plaintiff on March 27, 1976, the Plaintiff believes, and therefore alleges, that the vehicle has been retained in the custody and control of the Defendants or their agents and, although. demand for tl:ze return of ti~.e vehicle has 'peen made, the Defendants rep=use to return tine vehicle to the possession of the Plaintiff. 20. Th.e taking of the vehicle was wilful, malicious acid unlawful and 'has deprived Plaintiff and its president of the use of the vehicle, resulting in great inconvenience, all of which entitles Plaintiff to special and e~~emplary damages. 6,THEREFOI~.E, Plaintiff requests the Court to issue an order sustaining Plaintiff's right to possession or the vehicle a;.~.d awarding to the Plaintiff such damages as may be proper, illiam P~~I. Gross Krank, Gross & Casper Suite H, 1801 idorth Front Street Harrisburg, Pennsylvania 17102 -5- CO~ti~?ON;~~TEALTH OF PENNSYLVANIA SS. COUNTY OF DAUPHIN - Personally appeared before me, a Notary Public in and for said County and Commonwealth, i~IORMAN SWIDLER, who, being duly sworn according to Iaw, deposes and says that he is the Treasurer of W100, Inc., the Plaintiff in the foregoing Complaint; that he is authorized to make this affidavit on its behalf; and that the facts set forth in the foregoing Complaint are true and correct, upon personal knowledge, or where indicated in the Complaint, upon information and belief . '' Sworn and subscribed before me this 8th day of April, 1976. ~~~ ~--~" NOtARY pUBt{ ~~ ~bjt~lf}1~419q Expires 5etembe~ 17, 1918 Pennsylvania ~~~~pi ; ~@d~ily, ~, ', - s, , , 2 '1`}, ~~ PD > F. „~,' 0 ~~ ,~1~:;~:~ 1 . 1 `q Y ' ~.~. - .' LEASE AGREEMENT (CLOSED END LEASE) Agreement No.......... ..._..__ -. -.._.. ' 1st _ . _. __. day of ..____ January.... __._ _...19.74.___. . .......... . . . This agreement made this _- . - - - _..._ England_Leasing, Inc. - _ _ _ - __.__.._ _ - _ _.... between _ __ .... 425 S. Cameron St. , Harrisburg, Penna. 1.7101 _ __ __ (hereinafter called "Lessor"), __ _._ .__ .. WT_00_ . __.._ ._ ... __ . _ _ __ _ __. and .. .. __..... __ _ 33 W. Nigh St. , Carlisle, Penna. 17013 _ __ _ _ (hereinafter called "Lessee"), _. __ WITNESSETH: THE PARTIES HEREBY MUTUALLY AGREE AS FOLLOWS: DESCRIPTION OF LEASED VEHICLE: Lessor hereby leases to Lessee and Lessee hereby hires from Lessor, on the terms and conditions herein provided, that certain motor vehicle, as follows: y,t,N. MAKE MODEL 80DY TYPE YEAR A4C798Z217707 1974 Javelin ~VvIX 79-8 coupe EQUIPMENT: C f3K PS ASW ING VG TG LCr PG PP2 AC RWD RFM SMG K724 - L132 RENTAL PAYMENT AND TERM: Lessee agrees to accept the above vehicle at the rental rate specified. The term "vehicle" when used in this agreement shall mean motor vehicle leased hereunder by Lessee. Lessee agrees to pay each total monthly rental in advance without deduction, setoff or counterclaim, on the dates and at the places specified. If the delivery date is other than the first or the last day of a month, the monthly rental shall be prorated for that month. The term of this agreement with respect to the vehicle shall be as specified, and shall commence on the de- livery date of such vehicle. This agreement is one of leasing only and the Lessee shall not have or acquire any right, title, or interest in the vehicle except the right to use or operate it as provided herein. Monthly Rent Sales Tax Total Payment 217 00 _ g _ 13.02 _ _ 8230.02__-.per mo. Term of Lease Security Deposit Delivery Date __ 24 .....1-1-74 . __.._ . _.._.._---__....Months _....._._._....__...--- En land Leasing, Inc. ____. 1st _ day of each month to:._ - Rental to be paid on _ .. 425 S Cameron St., Harrisburg, Pa. 1.7101 __ -- -- _.. _ ... _ _ _ ..... . ......... at: . _. England Motors Inc 425 S. Cameron St.a Harrisburg, Pa. 1- __'? Vehicle delivery - a SAME __. ___ .....__ .._. ........... . Vehicle Return .. _... _.. . _... _ . _ . .. _. --- State Address City FORM AM 3259 HEV. 1-72 f ,' "' ' Yti !, }~~. ~... Return of Vehicle Upon expiration of this lease, the Lessee shall return and deliver said vehicle to Lessor at the point of delivery, or any location mutually acceptable to both Lessee and Lessor, with all accessories and equipment delivered in connection therewith, in good condition and repair, reasonable wear accepted. Any damage due to neglect and abuse, such as operation of ve- hicle without oil, grease, water or any anti-freeze or any damage to the vehicle not covered by insurance shall be the responsibility of the Lessee. Maintenance Lessee _. and Re airs p g _ _ _ __ -9 __ ._-shall keep and maintain each vehicle in good o eratin condition and workin order, using as a guide the maintenance program prescribed in the Owner's Manual, and shall perform all preventive maintenance required to insure full validation of the manufacturers warranty, including all mechanical maintenance repairs, lubrication and oil filter changes and. __ _ _no.ne .. ......new replacement tires required for the • safe operation of each vehicle. The Lessee shall be responsible for providing all necessary gasoline, engine oil, storage and washing. Lessee shall have all repairs and servicing of vehicles leased hereunder performed by an authorized new car deafer of the make of vehicle under lease. In case of an emergency, the Lessee may have repairs performed at any suitable repair station. Any expenditures for repairs in excess of twent the Lessee to obtain riot a Y ($20.00) dollars will require p pproval of Lessor before authorization of the work is to be per- formed. It is further required that the original itemized invoice evidencing the necessary repairs shall be forwarded to the Lessor at time of request for payment. Reimbursable repairs for maintenance are not to be deducted from the next rental payment due Lessor. Insurance Lessee _. _ _- ___ _ shall procure and maintain at its own cost throughout the terms of this agreement comprehensive, fire and theft insurance, and collision insurance with a 100..00 deductible provision. It is expressly understood that the Lessee shall be liable for, and pay, any repairs not covered by virtue of the deductible provisions of such insurance or any loss not compensated by insurance. This insurance policy to be issued to cover the interests of the Lessor. Lessee -. _ _ shall, at its own ex ense tain in force throughout the entire term of this agreement, insurance in compan es ac eptable to Lessor covering vehicle hereunder, naming the parties hereto as the assured as their interest ma a y ppear in the following amounts. Public liability insurance with minimum limits of ..._.._ .__ 250, 000-500, 000_ _...__. _ . Property damage insurance with minimum limits of Certificates of insurance evidencing the existence of such policies shall be issued in the name of the Lessor, and shall be held by the Lessor. All insurance policies shall bear an endorsement requiring not less than ten (10) days written notice to the insured from the insurer of cancellation of any policy for any reason. Lessee shall notify the Lessor as soon as practical whenever a leased vehicle has been involved in an accident. The Lessee shall notify the insurance company issuing the policy of automobile injury and property damage insurance immediately, and in the event any claim is made or action commenced for damages resulting from bodily injury or property, the Lessee shall make the necessary reports to the Lessor, the insurance company, and cooperate with them, as they deem it necessary. Lessee further agrees to cooperate with Lessor in collection for any loss of or damage to a leased vehicle for which a third party is responsible. Lessee shall indemnify and save and hold Lessor harmless from any and all such claims, demands, liability, action suits and judgments, and all court costs and attorney fees resulting from any and all claims for personal injury or damage to property resulting from the use or operation of said vehicle during the term of this lease. t Assignment Lessor may assign this agreement along with collateral documents without prior consent of and~Use Lessee to financial institutions as security for indebtedness of Lessor, and all rights, title, and interest of Lessor in this agreement shall enure to the benefit of the assignee and its successors and assigns. Lessee shall not dispose of, assign or transfer said vehicle or any interest therein under this contract. It is further agreed that all persons engaged in the use or operation of any lease vehicle shall at all times be employees, agents or persons des- ignated by the Lessee. It is further understood that the use of said vehicle leased hereunder will not be for the transportation of persons or property for hire. License and .. -...__Lcs~ox.._ _ Registration - --- -----_.__._.- -- .- _ - _... shall provide at its own expense State license plates, taxes, and inspections required to operate said vehicle for each calendar year. Should the vehicle be transferred to a different state during any calendar year the Lessee shall assume complete responsibility and shall purchase at its own expense the necessary state license plates and any other fees or taxes required to operate said vehicle. Lessee __.. --_._...shall pay all state sales, use and rental taxes in the state where vehicle is originally scheduled to operate. Any and all additional state or local excise, personal property and Ad Valoram taxes now and hereinafter in effect with respect to said vehicle by the reason of leasing vehicles hereunder shall be the responsibility of the Lessee. Use It is contemplated by the parties to this agreement that the vehicle described herein shall not be driven in excess of....-,42,000 .thousand miles during the term of this lease. In the event that said vehicle shall be driven in excess of the above mileage, then in addition to the rental stated herein the Lessee shall pay to Lessor. _.._ . fiIIe_. each mile in excess of the above said mileage. This amount will be paid to thesLessor' upoon the termination of said lease. Notice Any notice given under this agreement by either party shall be sent forth by registered mail to the address contained in this agreement. Indemnification Lessee agrees not to hold Lessor liable for the loss of an by the Lessor to render any service or su I Y Profits or any damage or failure agreement should the failures result from st ke or other) labor troubles, fee or acts Iof IGod, or any other causes which are beyond the control of the Lessor. Legal Lessee agrees not to permit the vehicle leased hereunder to be used in violation of any Covenants Federal, State or Municipal statute, law or ordinance, rule or regulation applicable to the operation of such vehicles and shall indemnify and hold Lessor harmless from any and all fines, forfeitures or penalties incurred by Lessee for traffic violation or for the violation of any Statute, Law, caused by the confiscation thereof by any public authority by reason of illegal use thereof by Lessee or its agents, servants or employees. Lessee shall be liable to Lessor for loss of said vehicle resulting from conversion or larceny by any of the agents, servants or employees of Lessee. ~C ~Yii{ } ~. r ~rr ,~'4.ti.~. ~'o~. W~ 't.?~ ~.~ >u~~ ~' N , ~~ _ ... Default 1,t* '~ ~ 'i +Rr t ';fie , x ; ~~ '~~ .: T ~ ~ I .+.. ..~ 1 , i ~ . ~ >~ f Time is of the essence of this agreern thean ov sions hereofeLessor shabll haveetheltright to of the payments hereunder or any of P terminate this agreement and reposseso tweth o~ without not ce, and without prejudiceeto sories and equipment attached the , such other remedies as Lessor may have for the collection of any sum or sums due or to become due Lessor from Lessee or otherwise defaults in any of thean attorney toi institute covenants of this agreement, Lessor shall have the right to employ appropriate legal proceedings to repossess said a of o{her breachtby thevLesseevand thereon to collect any amount due Lessor or to enforce Y Lessee hereby agrees to pay Lessor any costs, expenses and reasonable attorney's fees incurred by Lessor. if Lessee shall Lessor shall have the r~ et tione bankruptcy, shall haoet madeean assignment for the benefit have filed a volunta y p of creditors or if any involuntary petitionaS btsn or ptLesseellshall (have permitt d oresuffered receiver shall be appointed for Lessee s any distress, attachment, levy or executi ectt ob erm nateothisvlease by reason of evlentst as property of Lessee. If the Lesser shall e described in this paragraph, Lesse ndeatlh soa beement or for the lesse'eI's faoiluresoralnabili y make any of the payments required u 9 to perform any of the terms and conditions of this agreement. .., Walvet Failure of either .party to insist upon thftereasowaaving any su h termsrandnconditions,tbut agreement, shall not be construed therea '~ shall continue to remain in full force and effect as if no such waiver had occurred. } The agreement between the parties shall bentaltivdesg successo ss and lassigns! Anynamtendr heirs, executors, administrators, legal repres ments, alterations or supplementary provisi executed by bhe author ied agent of each of the this agreement must be in writing and du y parties hereto, This lease is executed in triplicate and a copy .thereof delivered to Lessee, receipt of which copy is hereby acknowledged by Lessee'. eClal Special provisions and deletions, if any, are listed below: Sp ~ p urchase this provisions At the end of this contract WI00 has the o tion to p and deletions automobile at $1900.00. IN WITNESS WHEREOF, Lessor and Lessee have caused these presents to be executed the ,~,:` day and year first above written. England Leasing, Inc. (Lessor) 1 ( .. .. Pres. ey .... , ;: ; . ' sident ~ ..... . i., TNIe ..._ ............ ~ M ... ............ 'fa ,~ ~ 4 ~'~,~ .,, WI00 . .. .... ... , .......::.:...:.., ............ (Lessee) , y, ~ By . ~`" .... .. .. ~ . '~ ~ • `~ Title ._ ... ~ 1 j ~, . ,.,iii ~ ~ 9 ; 'r t 1 * q s ,~._ EXHIBI ~~A~~ ~~ ~ 1 a.I~: s Fy=.Y ~ ~f~~~i 1' "~^~ ~Y~b"7., Apt ~rr~'~... Yyfly R~,,~K~~,~) 4 ~ ~~ J ~ 6 6 ' M '~'e , a~tF" '~ , ~~ ~~ ~~~ ~~ ~~w ~:..~ t ~;~~+~'~11.t In ~~h~"i ,~~~~r~~}~~~{'ipl-_~yrk y~. 61r . hTT~, ~, ~ ' B' ~ '~~~~i~f ~~ ~ ~ `,, .11'.'~J~~"7.~k~~,~?a,ri~~~ ~ , ~ 4 ~ ~ ~. i, k ~ ~ ii ~ r,`' a ,~ T ~~~t ,~• .{ , - ~ `e ,; {A{{{CCCCC ~ >r , ~ T ~ ~ ~, n„ I , , - , . riJ.~~a~Y~~~Y~P~{~S Y~~~ 1~'~'~' ~~ i~,~i~ ~, ~ ~'~'; 3p ~, >I 3 ~~ti ~~~ ia~~'iy ~~ 'f1~~,r^~~3Y1 s ii t ~~~~+• Kq~ 5,-~ ,e ~~~! Q , ilv 4,)Ij,~ ~~~~i a t.' ' j. a . y ' ~# ', • .. , STATEMENT OF ACCOUNT RADIO STATION YII00 AM ,~ . 33 W, High St. , Carlisle, Pa. 17013 • }~'VGL,IND '~;OTOR,;; • `(25 }`~oui;h C.~rieron Street ~~ • Ilarrist~urr•, ) eruis~~lvanii, -°-- 5.335.ao Tvr. r~e~~ Date Descri Lion --- Debit '---: -- ---_ C.edit Date i Bolonce 7/1 874'..50 Irrrre .._____~._ ~ ----_.._= 1-3c, 3962.5( 8/1 87 2_._50 .Iu1 1'_._.------ 21,7.50 180.0(1 Y _31_ "?17.~ 9/1 87 2.50 Aug 1-31 '--~- 39'7.50 - 217.5 0 ----- 10/1 283 2.SU Sept 1-30 615.00 --~ 707.5 --- 11/1 154 2.50 Oct~~~-31'F=T7:~ ~ 5322.50 11/1 13 - 385.0( ~335.2J 5 . C) Oct 1 5-31 r372.3( 13 5 2 . ------._. __ __ _ 6 5.0 ---- . 50 Nov 1-30 -- x437.3( 12 1 2 2 --~ -- -_ 3 3 7. 5( -- 00 iVov 1.=.3 0 c r 4.80 -----_w_ 1 i 0.0 c 884.80 54 2.50 Dec 1-31 54 135.00 4.00 De_-~ ~_31 ~ 1019.80 216.00 c 1235.80- . 1 74 20 5.00 llec 1-31 1~4 }~~'%rr IL DE ,IVIRY Pl~IC1~, 100.00 0 1335.80 ('~' ~l~}R.A S. 1600. Cas Arco nt _ }3al~,nce due ~ x264,20 `rOTA T}~q 214.2 x49.98 84 4 .00 J~ n ~ 5 520.4.. c r y 570.46 1-3i 74 336.00 2~1 `'3 5.00 ~~ ~~ cr 5234.4E 6 115.00 5.00 I~'eb 1 _g cr 51 19.46 3/1 50 4.00 Fe 30 • {)0 b 1-g 200.00 c 5089.46 ~ 889.46 PoY Los± qn,-. in This Column ~~ /~ A, v~ ~r~ ^ ~~ ~ ~" ~~ .,,. 4, ,..+t r 'Y = , 6th ~,Xtl~y q Ode-44'+.1~4H8Yf ~'_.ia{'t fa48K~~..+.~ ~ STATEMENT OF ACCOUNT RADIO STATION WI00 AM 33 W, Nigh St. Carlisle, Pa. 11013 • ENGLAND MOTORS • 425 South CamQrOri Street • Harrisburg, Pe~sylvania `/ TRADE FOR '74 AMX Date Descri lion No. Rate Debit Credit Date Balance IMF. UAR 1974 BROUGHT FORWAR cr 4889.4E 4 1 57 4.00 March 1-31' 4 228.00 cr 4661 E 5 1 56 4.00 A r 1- U 22d.U~) cr 443 .4E 6/1 57 4.00 M~.,y 1-31 228.00 cr 4209.4F. 1 4.00 June 1- 0 228.00 cr 81 4 57 4.0o Jul 1- 1 228.00 cr 3753.46 Invoice#6770 7 5 74 112.12 cr 3865.58 4.00 Aug 1-31 228 .00 cr 3637.58 9/1 .00 Au 2 - 1 _ 00 cr _ 3472.58 10 1 11~ .00 Set 1-1~ ~~.0'J cr 1~+2. ,8 Q "_.~0 ^2_c .OG cr 2914. ~8 11 ~ 1 ~'~ ~E.OC Opt 1 - 1 ~~R nr~ cr 2685. j8 1^/1 `~~ ~~.OC, Nwerher 1-Z~ ~2O.nn c ??+ 8.r~ ~ r 11 ~ 1 4.00 Feb 1-28 228.00 cr 1808.0 4/1 25 4.00 far 3-31-Jeep 100.00 cr 1708.07 4~1 57 4.00 P4a.r 1- 1 22f3.00 cr 1480. U Pay Last Amt. in T~fiis Column ~..-._,J /3 ,. f ,/ .. . { i ~~~ ., ~ ,~ ~ ~ _,, y ' F i' ~ ;1 ~ STATEMENT OF ACCOUNT •~ __.~ ~ -; RADIO STATION WI00 AM Wloo P: 0. sox 349 _. Carlisle, Pa 0013 • ENGLAND MOTORS • 425 South Cameron Street • Harrisburg, Pennsylvania TRADE FOR '74 AMX ,i~=, ~" ~, , . ~~.. ~ i .. 1 ~i 1 .. r ~ bate Dsscri lion o• Rate Debit Credit Date Bolance CH '75 BALAN BROUG FORW cr 1480.07 4.00 A r 1- 0 228.00 cr 12 2 0 2 4 00 A r4- Ogee 'nvoice of 3/25 100.00 5 141.44 cr cr 11 2.0 1293.51' '_ 44 4.00 8-31 JEEP 176.00 cr 1117.51 6/1 1 400 " ~ 1_ 52.00 cr 1065.51 . ,7~1 ~1 ' .00 .T~_u:^ 1-~-.~•^.; Itr 't'' ^~ cr 821.51 ~'~ 1 61 ~!.CO Jtt7.:~r 1-~'-~:' ,,, ~ ~ ' ^^ ,, ~ 1 '~'" '~~ '' ,~'~ '~~ ~ -?1 _ ' _ 77r5 "') -~ r-1 10/1 61 4.00 Sept1-30-Am.Mtr 244 00 8 11/1 56. 4.00 Oct 1-31 gm.Mtr . 224.00 cr 7.51 t36.~9 4 00 Nov 1-30-Am.Mtr 244.00 ~ .380.49 1 1 61 4.00 Dec1-31-Am,Motr 244. 624 49 . 2 1 61 400 Jan1- ~~- 6Am.Mt s 244. 868.4 3/1 ~1 4.Od Feb 1-29-AmMtra 244.0 1112.49 r i ' F ~. 'S ~ Poy Last Amt. ~ :.~ , '' "' ~ (n This ~~~' '` ` C " - o umn t. , '~,,~, , . .. .. ._... _., _, __ A ~t ~l ~ ~. ~ ' +,1~ , 7 ~ ,,, re , ~#~:~~~, ~,w,, . .~.! 11 ~ , r ' l+.y " p i < + ~ ~; .. EXHI B LT ~ ~ ~ ~ , ~., , ,+ ~ ,~•. ~+ ~ " ~ ~ ~~ A ! ; ,. :r - ~ ( ~ X10 \{, tj ~'' y~ yr,.~ (.~ f~ i.l: i la ~'~'C. I ) ,r: ;rl '' ~ r;~t, ~ +i •!~ 'ai°[a,,~wd 1r~> ~, r r 1 u ~rY ,F', ~ . ,, 6~ ~,~~ d , ~ . ~ ,1 7 ~ ~. ~ ~ ~ ~ ~ t 9' ~ it tr': f y t i ~ ,~ ~ b I e ~ J ~ ~~ ~ + a~ l , . 1 ~ i y 1 ~ ~h+•, b ~ "ti4'~' ter kgt~~k ~'~°y(`{t ~ k.~ flA. 1i :'~j ~Y~-5~ ~" ,tl :!` ~ ~: ~ 4i ~ (1/ ~ 1~~.,I Ta i +~",7 !4 T.. )) tY ~!t~ k ~ ,l(~ j rh .~ t e,~.., rr ~ e .~~ #~',~T[Ya ft~t 1 I , ~ + Z~~~a t ~~ ~ ~ "i f"r7'WI li •~•I .~{ i ~v ~d~R ~1 ft.F+ '~ ~".# ~ ~! `Y~ t '~ r: .'l, ! Y~~l,l ~ ~ ~ • "~ ~ A ~.yr. 1,,.! ~'~ ~~ t ;. ',~,~~L +{ ,* yy..~, i~~r, ya , ( ~ r `" n ~. !Y' , .~-~ KrK yy ! 1 SFI ',/, V ~ ~ f . ~ ~ v .. 1k,: '+ r ~ r r1 ~~-y' k; ~.1~ 1 i , S~Ai,~a r~ ~1 7i.',•'{ ~. tf i~y4~ ~~t~,rt. .i~~r'~ ~~ i~ _.a ~,,I~ 1 ~i " .~ ,. ~ 5,,, ~ ~ ': ~' { r i y ~5!rY' f~'''n~}~~ ~,~,~ a'jl~~r, ~Y. yr' ?~, .. 1W ~( Ij ro ~ 1 pi~ ~ ~,~, ~. +~ ° ~r{ ~ a , '9 " ~~ ,. . Y ~'~~ti~( 7~~+, t~'~1 iti din. ~ 3~~~ J''~ Y~!" ~I~\~ ~ ~~ i ~1f~ti' KI#• 1~s1 ~t ~t~~~~. k~..~ ,4 ~ ~ ~( ~ ' r J ' 7+ ' y r~! ' ~ ~i+N+. ~ i r', ~ I 'M.i,, ~ ~Y~ ~y1YGG 1 1 ~,~ r ~R ~~~~:~(. ~+ ~ ~}; 1 Q' ~ ~ ~ •~ ~ e _ ~~ ~ ~ ~r t!~.r ~ (, '% j1 i .7 `1 , ~~'i) r:: r >Y7 u 1 p 1 .. 9 'r rj~~ ~ y ~ ~'i rtr 1:~~ ~w,~ ~ '~(h~~it +~~' ~-/ !. iB t f `~ ~'.~h *f il~r 4t wia ~'7J~ ! ry~ .~, ~° ~''t~ ~ ~~ ~'!~ ~ ,"~, la ,,r"~ ,1 ~r,r~Y t~` "°'~s n i}~ " ~ rr it I ,lt ~ ,~, '~y~ y 9 4,•.! m ( 1 ~ ~t i ,~ x it, :1 r~~ 4r ~~ ~~;(<# ~ ~p~ a ~~'. e~ ,~~~r ao. , ' x ~ "a ~ ~ >s ~ ~ r ^ , , ~•~e ' ~,.r, i i ~ Y'1~jf~:1- ,~,, 1 (Y. '~ , r t r ~ + ~ x t },+ ern ~~ ..... _ . :... ~1Wc..~1« a kaM.s -r«. _~. .y-..;, .xw, n~~¢s,~~,,„,d:. ,.i x+h lali"~. ah .,_ i `+MVw clew+rw~ w!iI,~~YR/w~il'.YtiR'wdv.~:,'.,r l3rf~ .~ r,,..~ . -Manna.~r,~„ytr-.x, ....M..,.exwa~4s•1R^M?e'l .:CMS ^'+F^L"f@'+~f r ~, American Motors 20th December ~ 71 This agreement made this - ---------- - --- ...day of---.__.------------------------ --- --------.....19 --- - -between Etc~gland Laasing, Inc. - ----- -.__ ---- - - .. ............ _____ . - - - - - - - -- - ... - ...-- - -- .._._..-- -- ..._... - ------a corporation, with offices 423 S. Caaaeron St., Harrisburg, Peaaa. 17101 in ......... ..................... - - - - - - ...- ..... - - --- - ---- - ..............._..------ - --.... ---- - ---- - _.- -----.hereinafter referred to as 1ii100 city and State Carlisle, Penna. 17013 ,Lessor", and......... - - -- . ................._.............-...- -...-------- -- _._.....---- _.-...---of..._.-- ---------------.... - --------------------------------....--- ---------- hereinafter referred to as "Lessee." WITNESSETH: Lessor hereby agrees to lease to Lessee, and Lessee hereby agrees to hire from Lessor for the term and at the monthly rental rates hereinafter specified, the following automobile(s): MODEL BODY MONTHLY MONTHLY MAKE YEAR STYLE V.I.N. RENTAL RATE RENTAL TAX EQUIPMENT: 197.2-~~- Ambassador .:. A2A8S7P170869 ~ _ 0 120 `~ $222 ~0 to LEASE AGREEMENT (CLOSED END LEASE) Full or Non-Maintenance - - -Agreement No ........................................... England Leasintg, In+c. (Name of American Motors Lease System Member) and such additional automobiles as shall become subject to this lease agreement in the manner hereinafter provided. Lessee may, by written request to Lessor, order additional automobiles from time to time at a monthly rental to be agreed upon between the parties. Such additional automobiles fur- nished by Lessor pursuant to such request shall be subject to the terms and conditions of this agreement unless otherwise provided in writing by the parties. Terms It being expressly agreed that this is a contract of leasing only, and that the Lessee shall acquire no right, title or interest in or to the property described in this agreement. The lessor '~? does hereby agree to lease to Lessee, and lessee hereby accepts from Lessor, the Motor ~~~ ~° pt~ Vehicle(s) as described herein or in attached Schedule A and subsequent Vehicles taken all \. f ~ ~'~ of which will be subject to the conditions and provisions of this lease. FORM AM 3259 / I-, ~. ~ .•..._ ....v._ ..... .- .._.. _....-.. ~,.. „y! - ~~rr ~ ,.,. .m , .._ . ..... .,.. .n. . - ... .. ..«,.,rw...n.., ....,.au~T:-is~aaevewm'+sl+a`6-rt1 S Rental The rental period shall be for_ ...__._._24 _.._ ___..__........months; beginning on the date of delivery Period of the vehicle(s) which is described herein or in attached Schedule A. All payment shall be ' made at the office of the Lessor in...__.....~a~x'#.ttburg.,.. PennB-....-_,171Q1--..------~- ~-----~ -- - - - -- City State or at such other place as the Lessor may designate. The lessee shall during the term hereof pay the Lessor for the use of said vehicle(s), a monthly rental figure, without deduction of any kind in the amount set forth herein or in attached Schedule A. All rental payments are payable in advance on the first day of each month. The first and last payments for the first and last months shall be pro-rated for the actual days used in said months. Return of Upon expiration of this lease, the Lessee shall return and deliver said vehicle(s) to Lessor Vehicle(s) at the point of delivery, or any location mutually acceptable to both Lessee and Lessor, with all accessories and equipment delivered in connection therewith, in good condition and repair, reasonable wear accepted. Any damage due to neglect and abuse, such as operation of vehicle(s) without oil, grease, water or any anti-freeze or any damage to the vehicle(s) not covered by insurance shall be the responsibility of the Lessee. Maintenance __ __ ~aB~e_ _ __ _ _ __ shall keep and maintain each vehicle in good and Repairs operating condition and working order, using as a guide the maintenance program prescribed in the Owner's Manual, and shall perform all preventive maintenance required to insure full validation of the manufacturers warranty, including all mechanical maintenance repairs, lubrication and oil filter changes and __.__.__not><e __...._ new replacement tires required for the safe operation of each vehicle. The Lessee shall be responsible for providing all necessary gasoline, engine oil, storage and washing. Lessee shall have all repairs and servicing of vehicles leased hereunder performed by an authorized new car dealer of the make of vehicle under lease. In case of an emergency, the Lessee may have repairs performed at any suitable repair station. Any expenditures for repairs in excess of twenty ($20.00) dollars will require the Lessee to obtain prior approval of Lessor before authorization of the work is to be per- formed. It is further required that the original itemized invoice evidencing the necessary repairs shall be forwarded to the Lessor at time of request for payment. Reimbursable repairs for maintenance are not to be deducted from the next rental payment due Lessor. Insurance _ _.___ Lessee __ _ _._ ___ __ - . _ _..-_shall procure and maintain at its own cost throughout the terms of this agreement comprehensive, fire and theft insurance, and collision insurance with a_ 1QO.QU.__. deductible provision. It is expressly understood that the Lessee shall be liable for, and pay, any repairs not covered by virtue of the deductible provisions of such insurance or ariy loss not compensated by insurance. This insurance policy to be issued to cover the interests of the Lessor. ..._..._._._____..- ....Lee8e1~._.....___...._._..._. _.-. _.... _-. _-......__-shall, at its own expense, procure and maintain in force throughout the entire term of this agreement, insurance in companies acceptable to Lessor covering vehicle(s) hereunder, naming the parties hereto as the assured as their interest may appear in the following amounts. Public liability insurance with minimum limits Property damage insurance with minimum limits of.--......__.__...__......_._ ....................._.-...._._.-..---_..------ -------- Certificates of insurance evidencing the existence of such policies shall be issued in the name of the Lessor, and shall be held by the Lessor. All insurance policies shall bear an endorsement requiring not less than ten (10) days written notice to the insured from the insurer of cancellation of any policy for any reason. Lessee shall notify the Lessor as soon as practical whenever a leased vehicle has been involved in an accident. The Lessee shall notify the insurance company issuing the policy of automobile injury and property damage insurance immediately, and in the event any claim is made or action commenced for damages resulting from bodily injury or property, the Lessee shall make the necessary reports to the Lessor, the insurance company, and ~~ ~,, is ~ Y.7E{.. x rH { f ~` ,.1. iy cooperate with them, as they deem it necessary. Lessee further agrees to cooperate with Lessor in collection for any loss of or damage to a leased vehicle for which a third party is '" responsible. Lessee shall indemnify and save and hold Lessor harmless from any and all such claims, demands, liability, action suits and judgments, and all court costs and attorney fees resulting from any and all claims for personal injury or damage to property resulting from the use or operation of said vehicle(s) during the term of this lease. Assignment Lessor may assign this agreement along with collateral documents without prior consent of and Use Lessee to financial institutions as security for indebtedness of Lessor, and all rights, title, and interest of Lessor in this agreement shall enure to the benefit of the assignee and its succes- sors and assigns. Lessee shall not dispose of, assign or transfer said vehicle(s) or any interest therein under this contract. It is further agreed that all persons engaged in the use or operation of any lease vehicle(s) shall at all times be employees, agents or persons desig- nated by the Lessee. It is further understood that the use of said vehicle(s) leased hereunder will not be for the transportation of persons or property for hire. License and ..__ ......................_.1.~.~44;..._....-......-. .-.....-.---_...-- -.-- -.-------.-- -shall provide at its own expense one set of Registration State license plates, Vehicle Tags, and inspections required to operate said vehicle for each calendar year. Should the vehicle be transferred to a different state during any calendar year the Lessee shall assume complete responsibility and shall purchase at its own expense the necessary state license plates and any other fees or taxes required to operate said vehicle. .. . ...... ..... ...... .. ~~`_ -.__ .._ . _.-.._. _,.,.-_-_..._.._._ _.....-._....shal l pay all state sales, use and rental taxes in the state where vehicle is originally scheduled to operate. Any and all additional state or local excise, personal property and Ad Valoram taxes now and hereinafter in effect with respect to said vehicle by the reason of leasing vehicles hereunder shall be the responsibility of the Lessee. Insignia Lessee shall be required to obtain prior consent of Lessor before any insignia, accessory, decal or advertising may be affixed to any lease vehicle. It shall be further understood that should such approval be extended that said vehicle(s) shall be returned to Lessor in as good condition as prior to the time the acCessory,~ decal, insignia and advertisement were affixed to said vehicle(s). '~ Use It is contemplated by the parties to this agreement that the vehicle(s) described herein shall not be driven in excess of..-....42-:~~ ...............thousand miles 42 rO~the term of this lease. In the event that said vehicle shall be driven in excess Pfy........--..! .................F~housand miles, then in addition the rental stated herei42 h~LOessee shall a to Lessor.-__.._.._.._ ................._..-..cents per mile for each mile in excess of.........-..R ..........................thousand miles. This amount will be paid to the Lessor upon the termination of said lease. Notice Any notice given under this agreement by either party shall be sent forth by registered mail to the address contained in this agreement. Indemnification Lessee agrees not to hold Lessor liable for the loss of any profits or any damage or failure by the Lessor to render any service or supply any vehicles under the terms of this lease agreement should the failures result from strike or other labor troubles, fire or acts of God, or any other causes which are beyond the control of the Lessor. Legal Lessee agrees not to permit the vehicle leased hereunder to be used in violation of any Covenants Federal, State or Municipal statute, law or ordinance, rule or regulation applicable to the operation of such vehicles and shall indemnify and hold Lessor harmless from any and. ell fines, forfeitures or penalties incurred by Lessee for traffic violation or for the violation, t~f ` / `~ ,. I'~~'~q~ ,:i. ~ . ~ S+- . 7 t _. .. .. / _ . S ~ i t !bC i any Statute, Law, caused by the confiscation thereof by any public authority by reason of illegal use thereof by Lessee or its agents, servants or employees. Lessee shall be liable to Lessor for loss of said vehicle(s) resulting from conversion or larceny by any of the agents, servants or employees of Lessee. Default Time is of the essence of this agreement and in the event Lessee shall be in default in any of the payments hereunder or any of the provisions hereof, Lessor shall have the right to terminate this agreement and repossess the motor vehicle(s) leased hereunder and all acces- sories and equipment attached thereto, with or without notice, and without prejudice to such other remedies as Lessor may have for the collection of any sum or sums due or to become due Lessor from Lessee or otherwise defaults in any of the terms, conditions and covenants of this agreement, Lessor shall have the right to employ an attorney to institute appropriate legal proceedings to repossess said motor vehicle(s) or to recover the value thereof to collect any amount due Lessor, or to enforce any other breach by the Lessee and thereon Lessee hereby agrees to pay Lessor any costs, expenses and reasonable attorney's fees incurred by Lessor. Lessor shall have the right to terminate his lease, without notice to the Lessee, if Lessee shall have filed a voluntary petition in bankruptcy, shall have made an assignment for the benefit of creditors or if any involuntary petition in bankruptcy shall be filed against Lessee, or if a receiver shall be appointed for Lessee's assets, or if Lessee shall have permitted or suffered any distress, attachment, levy or execution to be made or levied against any or all of the property of Lessee. If the Lessor shall elect to terminate this lease by reason of events as described in this paragraph, Lessee shalt not be relieved of any liability for its failure to make any of the payments required under this agreement or for the lessee's failure or inability to perform any of the terms and conditions of this agreement. Waiver Failure of either party to insist upon the performance of the terms or conditions of this agreement, shall not be construed thereafter as waiving any such terms and conditions, but shall continue to remain in. full force and effect as N no such waiver had occurred. The agreement between'"fhe parties shall be binding on the respective parties and their heirs, executors, administrators, legal representatives, successors and assigns. Any amend- ments, alterations or supplementary provision that may be made subsequent to the date of this agreement must be in writing and duly executed by the authorized agent of each of the parties hereto. This lease is executed in triplicate and a copy thereof delivered to Lessee, receipt of which copy is hereby acknowledged by Lessee. i +~ IN WITNESS WHEREOF, Lessor and Lessee have caused these presents to be executed the day and year first above written. k At the end o£ this contract W100, Inc. has the option to purchase ' this automobile at ,41500.00 •>, ' '~ t, ........_..._...Tnglansi....Leaei .Inc..~~...:. ` , . ~ ° :, ,. `~.,. ey ................. .. .. .......... 1 .. ..........~.....~..~.........._.._..._._Geu.Mgr.. ~~,`, Nam & Title , k ~~ ," ., ,. ^,~ . ~. W.100. ,...Znc. , , t L ~, }, ~ ~ , ~ • ` tt~a~i 6 Title) . ~ _ , e '" 8 w ~ r~ k ~ ;~ ' s .. '~ -. EXHIBIT "C" ~~ .~.~~ ~ ~ ff";~ ...,...~ . i ~..~ v ~~,~, r ~, ~'~ ~ 1 i ° ~' '' ! ~ . '~ ^~g ~ 1I' ;}~`~"'~?•..r,.,,,«•~. n .-r~..~.~.r.-~...r„ ~,.,~ ~'•~ ^~fr+"7! ~ 1~ '~f ,'-r...7 ,..w•-- r~..n• ««+ow. ~,. ~P ~ ,~ S!T ~ 4 • »~ ~'. I.. ,i; r' I.~ y ~, i ~ a 1'~ f'..~'~ t- .i, rr ~ ply } ~ ~ f -~ lye ~ r ~7 _ ~2~ i~c ~. ~.w3 ek.~ ~ ~ r~~ aw° :~,c'.i,~ ~ ~a+~d s,.{ '°.r ~ ' ' °~.,~~, it4~..~. ~~ .~?t~.~ v~, ~~f~ $ . __r. k.'} a ra '"! ~~`." ' fir" san, t~r"z-•-~c i~iF71Aa".y>.. ~x^'~~a«an.,2+~.4~. ~~d.,a~&:.~i'u.e'~.+ ~k 4 WIOG , IIdC . , VS. Plaintiff ENGLAi1D ~~iOTORS , INC . and ENGLAI~TD LEASING, INC. , Defendants II`d THE COURT OF COr~'ION PLEAS OF CTJI~ISERLAND COUNTY , PENNSYLVANIA NO . fr~ / ~~' ~~; ;~.?,',TE°.M, 1976 REPLEVIi1 ±~i0 d'IOiy FOR ISSUAidCE OF A tti>RIT OF SEIZUPtiE In accordance with Pa. R.C.P. 1075.1, William I~'i. Gross, Esquire, attorney for WI00, Inc., plaintiff in the above-captioned matter, moves the Court for the issuance of a writ of sei?ure upon notice and hearing. The complaint, a copy of which is attached hereto, was fi"led oi~ April 9, 197ti. Wi liam M. Gross April 9, 1976 Kranlc, Gross & Casper Suite TT, 1501 North Front Street Harrisburg, Pennsylvania 17102 Attorneys for Plaintiff WI00, INC., Plaintif-L- VS. ETdGLAND MOTORS , INC . and ENGLAND LEASITTG, INC., Defendants IN TTTE COURT OF CON~IOTd PLEAS OF CUMBERLAND COUNTY, PENNSYLVATdIA NO . / / '~> ~'. ~_,.,~ ~: _ TEEM , 19 7 6 REPLEVIN ORDER fi~- AND NOW, this~_day of April, 1976, upon motion of William M. Gross, Esquire, attorney for the plaintiff, for the seizure of property described in tl~e complaint, it is ordered ~; .~.. ,. that a hearing; on said motion shall be held at _'I •'`l• 0' clock., on ~~ 1976, in Courtroom iv0. ~_, Cumberland County Courthouse, Carlisle, Pennsylvania. ro c~~~- • • r~. e ~~~~~~tx~~~ ~~.n~~p~ ptgg~~~¢~.~j l~~~~yy~~,~~". ~*+y!~~q ~,,;ar~"~~iy~ys~. y~[~+;1hp5 ~r Y.~'~"~ '6.~: 1% A~Paw'L~~t.,.) 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This agreement made this _ ._ _lst day of _...._January 19 74 between... England Leasing, Inc. 425 S Cameron St. , Harrisburg, Penna. 17101 _ .. (hereinafter called "Lessor"), and .._ _. ___... _ .. WI00 ................ 33 W. High St. , Carlisle, Penna. 17013 _ (hereinafter called "Lessee"), WITNESSETH: THE PARTIES HEREBY MUTUALLY AGREE AS FOLLOWS: DESCRIPTION OF LEASED VEHICLE: Lessor hereby leases to Lessee and Lessee hereby hires from Lessor, on the terms and conditions herein provided, that certain motor vehicle, as follows: YEAR MAKE MODEL BODY TYPE V.I.N. 1974 Javelin AMX 79-8 coupe A4C798Z217707 EQUIPMENT: C BK PS ASW ING VG TG LG PG PP2 AC RWD RFM SMG K724 - L132 RENTAL PAYMENT AND TERM: Lessee agrees to accept the above vehicle at the rental rate specified. The term "vehicle" when used in this agreement shall mean motor vehicle leased hereunder by Lessee. Lessee agrees to pay each total monthly rental in advance without deduction, setoff or counterclaim, on the dates and at the places specified. If the delivery. date is other than the first or the last day of a month, the monthly rental shall be prorated for that month. The term of this agreement with respect to the vehicle shall be as specified, and shall commence on the de- livery date of such vehicle. This agreement is one of leasing only and the Lessee shall not have or acquire any right, title, or interest in the vehicle except the right to use or operate it as provided herein. - Monthly Rent Sales Tax Total Payment $ ... 217.00__ $ 13.02 8230.02 _. _ per mo. Term of Lease Security Deposit Delivery Date __ 24._... -Months ~ .__.._.._.._....... 1-1-?4 Rental to be paid on _... .1St day of each month to:... England Leasing, Inc. at: 425 S. Cameron St., Harrisburg? Pa. 17101 Vehicle delivery ......England Motors, Inc. 425 S. Cameron St., Harrisburg, Pa. 1-1-74 Vehicle Return ._.. __.S~ .................................. dress City State rORM AM 3259 REV. 7-IZ C Return of Upon expiration of this lease, the Lessee shall return and deliver said vehicle to Lessor at the Vehicle point of delivery, or any location mutually acceptable to both Lessee and Lessor, with all accessories and equipment delivered in connection therewith, in good condition and repair, • reasonable wear accepted. Any damage due to neglect and abuse, such as operation of ve- Return of Upon expiration of this lease, the Lessee shall return and deliver said vehicle to Lessor at the Vehicle point of delivery, or any location mutually acceptable to both Lessee and Lessor, with all accessories and equipment delivered in connection therewith, in good condition and repair, • reasonable wear accepted. Any damage due to neglect and abuse, such as operation of ve- hicle without oil, grease, water or any anti-freeze or any damage to the vehicle not covered by insurance shall be the responsibility of the Lessee. Maintenance __ Lessee _ __..shall keep and maintain each vehicle in good and Repairs operating condition and working order, using as a guide the maintenance program prescribed in the Owner's Manual, and shall perform all preventive maintenance required to insure full validation of the manufacturers warranty, including all mechanical maintenance repairs, lubrication and oil filter changes and _.. _none__.__.._.new replacement tires required for the safe operation of each vehicle. The Lessee shall be responsible for providing all necessary gasoline, engine oil, storage and washing. Lessee shall have all repairs and servicing of vehicles leased hereunder performed by an authorized new car dealer of the make of vehicle under lease. In case of an emergency, the Lessee may have repairs performed at any suitable repair station. Any expenditures for repairs in excess of twenty ($20.00) dollars will require the Lessee to obtain prior approval of Lessor before authorization of the work is to be per- formed. It is further required that the original itemized invoice evidencing the necessary repairs shall be forwarded to the Lessor at time of request for payment. Reimbursable repairs for maintenance are not to be deducted from the next rental payment due Lessor. Insurance Lessee _ shall procure and maintain at its own cost throughout the terms of this agreement comprehensive, fire and theft insurance, and collision insurance with a ]00,00 _ .deductible provision. It is expressly understood that the Lessee shall be liable for, and pay, any repairs not covered by virtue of the deductible provisions of such insurance or any loss not compensated by insurance. This insurance policy to be issued to cover the interests of the Lessor. Lessee _ ........ _ shall, at its own expense, procure and main- tain in force throughout the entire term of this agreement, insurance in companies acceptable to Lessor covering vehicle hereunder, naming the parties hereto as the assured as their interest may appear in the following amounts. Public liability insurance with minimum limits of _. _250_,000 _500,.000__._ _______ Property damage insurance with minimum limits of _ .._.._ ..............__...:._._.._..._. __._..__...._.__.._....__..._.. ...___ Certificates of insuranceevidencing the existence of such policies shall be issued in the name of the Lessor, and shall be held by the Lessor. All insurance policies shall bear an endorsement requiring not less than ten (10) days written notice to the insured from the insurer of cancellation of any policy for any reason. Lessee shall notify the Lessor as soon as practical whenever a leased vehicle has been involved in an accident. The Lessee shall notify the insurance company issuing the policy of automobile injury and property damage insurance immediately, and in the event any claim is made or action commenced for damages resulting from bodily injury or property, the Lessee shall make the necessary reports to the Lessor, the insurance company, and cooperate with them, as they deem it necessary. Lessee further agrees to cooperate with Lessor in collection for any loss of or damage to a leased vehicle for which a third party is responsible. Lessee shall indemnify and save and hold Lessor harmless from any and all such claims, demands, liability, action suits and judgments, and all court costs and attorney fees resulting from any and all claims for personal injury or damage to property resulting from the use or operation of said vehicle during the term of this lease. ~, Assignment Lessor may assign this agreement along with collateral documents without prior consent of and'Use Lessee to financial institutions as security for indebtedness of Lessor, and all rights, title, and interest of Lessor in this agreement shall enure to the benefit of the assignee and its successors and assigns. Lessee shall not dispose of, assign or transfer said vehicle or any interest therein under this contract. It is further agreed that all persons engaged in the use or operation of any lease vehicle shall at all times be employees, agents or persons des- ignated by the Lessee. It is further understood that the use of said vehicle leased hereunder will not be for the transportation of persons or property for hire. License and _ ___...Les~ox~._._--.-_ - - - - .-- -_-.--- ......_ _.. shall provide at its own expense State license Registration plates, taxes, and inspections required to operate said vehicle for each calendar year. Should the vehicle be transferred to a different state during any calendar year the Lessee shall assume complete responsibility and shall purchase at its own expense the necessary state license plates and any other fees or taxes required to operate said vehicle. __..___-_--._ .Lessee _shall pay all state sales, use and rental taxes in the state where vehicle is originally scheduled to operate. Any and all additional state or local excise, personal property and Ad Valoram taxes now and hereinafter in effect with respect to said vehicle by the reason of leasing vehicles hereunder shall be the responsibility of the Lessee. Use It is contemplated by the parties to this agreement that the vehicle described herein shall not be driven in excess of._.._~~.42,000 ..thousand miles during the term of this lease. In the event that said vehicle shall be driven in excess of the above mileage, then in addition to the rental stated herein the Lessee shall pay to Lessor......._..fIIe-___ each mile in excess of the above said mileage. This amount will be paid to thesLessorllupoon the termination of said lease. Notice Any notice given under this agreement by either party shall be sent forth by registered mail to the address contained in this agreement. Indemnification Lessee agrees not to hold Lessor liable for the loss of any profits or any damage or failure by the Lessor to render any service or supply any vehicles under the terms of this lease agreement should the failures result from strike or other labor troubles, fire or acts of God, or any other causes which are beyond the control of the Lessor. Legal Lessee agrees not to permit the vehicle leased hereunder to be used in violation of any Covenants Federal, State or Municipal statute, law or ordinance, rule or regulation applicable to the operation of such vehicles and shall indemnify and hold Lessor harmless from any and all fines, forfeitures or penalties incurred by Lessee for traffic violation or for the violation of any Statute, Law, caused by the confiscation thereof by any public authority by reason of illegal use thereof by Lessee or its agents, servants or employees. Lessee shall be liable to Lessor for loss of said vehicle resulting from conversion or larceny by any of the agents, servants or employees of Lessee. r ~ .r ^ r t !, 4 F • ,1 ~{5 .. / ~'1... l ... tl Default Time is of the essence of this agreement of the payments hereunder or an of the rov, ~ ~ event Lessee shall be in default in any terminate this agreement and repossess the motor veh cle leased hereunl have the right to der and all acces- sories and equipment attached thereto, with or without notice, and without prejudice such other remedies as Lessor may have for the collection of any sum or sums due or to become due Lessor from Lessee or otherwise defaults in any of the terms, conditions and covenants of this agreement, Lessor shall have the right to employ an attorney to institute appropriate legal proceedings to repossess said motor vehicle or to recover the value thereof to collect any amount due Lessor or to enforce any other breach by the Lessee Lessee hereby agrees to pay Lessor any costs, expenses and reasonable attorne t'sef on incurred by Lessor. Y ees Lessor shall have the rignt to terminate this lease without notice to the Lessee, if Lessee sh have filed a voluntary petition in bankruptcy, shall have made an assignment for the ben all of creditors or if any involuntary petition in bankruptcy shall be filed against Lessee, or iffia receiver shall be appointed for Lessees assets, or if Lessee shall have permitted or suffered any distress, attachment, levy or execution to be made or levied against any or all of the property of Lessee. If the Lessor shall elect to terminatQ this lease by reason of events as described in this paragraph, Lessee shall not be relieved of any liability for its failure make any of the payments required under this agreement or for the lessee's failure or inabilit to perform any of the terms and conditions of this agreement. to Y Wa1ve~ Failure of either .party to insist upon the agreement, shall not be r:onstrued thereaftepeaso ae~ne °~ the terms or conditions of this shall continue to remain in full force and effect as if no suct~uwaiver had occurredons, but The agreement between the parties shall be heirs, executors, administrators, legal representaltiaes9successorssandtlassigns. An am ments, alterations or supplementar Parties and their this agreement must be in writing and rduly' executed by bhe auahor ied anent of the datenof parties hereto. 9 each of the This lease is executed in triplicate and a copy ,thereof delivered to Le copy is hereby acknowledged.by Lessee. ssee, receipt of which special Special provisions and deletions if an proviSiOnS ~ Y! are listed below: - At the end of this contract WI00, has the option to purchase this and deletions automobile at $1900.00. , IN WITNESS WHEREOF, Lessor and Lessee have caused these presents to be exe day and year first above written. cuted the •.. 1;n~land Leasing, Inc. (Lessor) _.... _ _. _ __..._ _.._ _. _ _ .... _ WI00 '' { :, .. .. . ..` (Lessee) '° ~~ ' ~.. _ ". .. Pres. y .-~ _- ` ,_ _. .... _ f3 _, . _. ... Y ` ., TItf9 fir.: ~ __ ~ C_ . c_ sident ~ ____ .... __ ... .. ,. _, __.._ 1 .. Title (~. ~' ., ~ , r ~:.~ ~~. ` .. ........ .... _. ~ ;K ~ v a.. +~ ! ~ ~ f '~ "'~ ~ „{~ S, 1 i L 1~r~Y~ ~ ~+I ~•yr +b '~ rr ~r ~ 'r~ 1'.. tsHl ~~A~t r ~ "11 u ~~,,t" ~ t, ~~' ` `' ~ lec~t ~'~~l ~f~{ ~~~. tlfr~~4~ g~ `~b? r., yl,. Tit' j pr t~ Y T7i'"",' ~y. ~' ~ ~~ '!y ~ ~ `$ , f r '•~ } tl.; ~. / ~ "!y, 1, ,~1~ ~(~~t{~,;",• y ~~ !-f,1 la ~, ">'' i ~iy~' ~ ~' { 11. 1 t~ ~~.. ~~ ~ ~ "~YjY^ :p { y ~~' ~, ~~~~ ~7~'.s x'~'~v ,`r~t~.]~Stil~~:~',~r,t ~~'~~pr~7,'y~,,1t ~~ •''{~~,, ii h~~t}W ,.w~{ i! ~;~jk~t ~1^ l~F~titjf ~~."° 1~ rlttY, .~;, .• ,~ " { p yy ,tom 11 ~~ '[ ~~, {~,'/ j'i {P Jb,~k Hy~l,iJb ~~,/y41 ,~'~. ~~~, ,~r ,~f {~~~, ~r{ n~.'~~ ~d ~i~~1,~ 1 ~~+'~t~?f;~'' ''.'~ ' 1=r~ ~ r '~~ Y ~ d ~t jy ate {) < ,r" +~•,r ,~ ,~.~~le ~ ~ yy ~ { { I~~ ~~f ~~ ~, i~~, ~yt`'rr~`t,. ~ i(I ~~ ~, !A ~~ a~ t ~ 1K~ ~ ~ ~1 ~"ririll~t w.~ •arr ~.cr. ,+~,+.. ~aa *y-,.° Yye ~•~ra„v ~ ~ -..a ~ ~ ~ e ~ ,J; .~ T", ,~,y~ i t S ~, ga STATEMENT OF ACCOUNT ~ ` RAD10 STATION WI00 AM 33 W, High Sf. - Carlisle, Pa. 17013 ~ 425 South C~~rieron Street ~ Ilarrisbur~t, l'ennsvlvania. Descri tion_:~ _ Debit Credit Date Bolance Dote No. Rote I _ __ ~R,QUGIf'1` ]~(~~t,tdA1, D ria ' 3 3962 • 5C 7/1 H7 _ 2.50 -3U ~ 1 Jun e 2 1 7.50 1 80.00 R/1 H7 2.50 . _ ~_ _, _ July 1 -"31,^^ T _ 217.50 397.50 9/1 87 2.50 Auk; 1-31 217.50 4615.00 10/1 11/1 283 154 2.5U 2.5U Sept 1-30 Tf7~ ~- Oct 1- _ 707.5 385.0( _ 5335.2 5322.50 r372.3~ 11 /1 13 5.0) ___ Oct _1 5-31 _ 65.0 r437.3C 135 2.50 Nov 1-30 337.5( c 4 80 12 1 _ 22 '.00 Nov 1 _30 110 0 c 884.80 54 2.50 1-31 Dec 135.00 c 1019. RC 54 4.00 _ Dec 1-31 216.00 c 1235.8C _ 1/74 20 5.OU Dec 1-31 100.00 c 1335.8C 1 /4 ]tET IL DE ~IV1~RY PRICT, °1 AMRA S. 1600. r264.2C C~sI Acco nt - ;ia.lFnce due 21 4.22 r49.98 TOTA TItA PRICE FOfZ ' 4 Ari?C 5520.4 c r 5570.46 84 4.00 Jan 1-31 ' 74 336.00 cr 5234.4E 2/ 1 23 5.00 `" 1 1 5 .00 cr 51 1 9.46 6 5.00 Feb 1-R 30.00 c 5089.46 3/1 50 4.00 Feb 1-8 200.00 c 889.46 Pay Last Amt, in This Column .33 STATEMENT OF ACCOUNT RADIO STATION WI00 AM 33 W. Nigh St. • Carlisle, Pa. 11013 • ENGLAND MOTORS • 425 South Cameron Street • Harrisburg, Pennsylvania TRADE FOR '74 AMX ..y :.. 1 Date Descri lion No. Rate Debit Credit Date Balonce FE UAR 1974 BROUGIiT FORWAR cr 4889.4E 4 1 57 4.00 March 1-31'74 228.00 cr 4661 E 5 1 5Ei 4.OU A r 1- U 224 . U~) cr 443 .4E 6/1 57 4.OU Ma 1-31 ?_~ 8. UU cr 4209.4E 1 4.00 June 1- 0 228.00 cr 81 4 8/1 5 4.00 Jul 1- 1 228.00 cr 3753.46 Invoice#6770 5 74 112.12 cr 3865.58.' 4.00 Aug 1-31 228.00 cr 3637.58 9/1 .00 Au 2 - 1 5=00 cr 3#72.58 10 1 11'! .00 Set 1-18 G,00 cr 1ti2. 8 4 0 _ 228.00 cr 2914.58 11%1 5 4.0~ Oct 1 - 1 228 00 cr 2686.58 1 ?% 1 ~7 '+. (?0 November 1-~'~ ~~'~, n0 c 2458.58 /^S l~1i- ~ ~ Q ~ n 1 1 `~7 ~~-.~~ Dec 1- 1 ~'' ',~; C ~~~'~.~~ , 1 4.00 Feb 1-28 228.00 cr 1803.0 4/1 25 ~E.00 iar 3-31-Jeep 100.00 cr 1708.07 4/1 57 4.00 Mar 1- 1 228.00 cr 1480.0 ~. ti .3~ 1 ~ +u H r~ 2^~ ~ T, ~ d ' ' ~ ( ~ J ^1 r. ~ '° li +~ i l STATEMENT OF ACCOUNT ./ • RADIO STATION WI00 AM W1oo , P. 0. Box 394 Carlisle, Po. 17013 • ENGLAND MOTORS • 425 South Cameron Street ~ Harrisburg, Pennsylvania TRADE FOR '74 AMX ~~~'- y. ' 1' wY, r ~.; i ~ Dote Descri lion bi D o. Rate t e Credit Date Balance CH '75 BALAN BROUG FORW cr 1480.07 4.00 A r 1- 0 228.00 cr 12 2 0 2 4.00 A r4- 0-Jee 100.00 cr 11 2.0 'nvoice of 3/25 5 141.44 cr 1293.51' _ 44 4.00 a 8-31 JEEP 176.00 cr 1117.51 6/1 1 4.00 Ma 1- - 52.00 cr 1065.51 ; 'j/1 ~1 ' .00 Jtu:r 1-~n-:1`°',i ;tr "'~'' .!`7 cr 821.51 o i~ ~1 '~ .1~r Jit'_" 1 -" - ii'. ~~ '' ~^ ~' 577. j1 , ~~ /^. ' 10/1 61 4.00 Sept1-30-Am.Mtr 244.00 cr 87.51 11/1 56 4.00 Oct 1-31 Am.Mtr 224.00 t36.b9 4 0 Nov 1-30-Am.Mtr 244.00 ~ ' 3~•'+9 1 1 61 4.00 Dec1-31-Am.Motr 244. 624.49 2 1 61 400 Jan1- 1-t• 6AmeMt a 244. 868.4 3/1 ~ ~1 4.0o Feb 1-29-AmMtre 244.0 1112.49 Poy Last Amt. in This Column ~.~J .. S-. ~,. :, _. f r .._ ._ ~ + 8 ~ ~ fit ~r `~~ .~ ~ ~ r ~ ! ~,~; ~ , t ,. ~•. ~ , r~:~ ,y~ °~f~r ~~~~ ru EXHIBIT "$'- ~ ~ ~, ~r tr~.,,r ,..;~~~ r, ~, ~ ~ r+, . , A 7~ ~ya yr~ ~ f (S: ~1A-. ~f { , '{L .4• LI ~~.1 1. t~i~ MV ' ~'ri 4h rv!~~1 trS.kr1g~J{ <.. , ~t ~ }..M .~ ra '~:M1 ~i~+ i ~v7~ >J 1 c !; ~r ~ J. `'1 ~ r ',.~,~ ~r'r x ~ ,'' b. ,v i` „~~~ ~g°3 A S L~ 1l itr ~ ~ !t i~f fr % ~` r ; ~ y.r f w r. r r ~ ! ~~,,~A a t ~A , ~ rt3~~ ~' 4f~ rt~t,!, ..;;.~ h ,~'s r f ..y ~~, i '!1~~ ..,.tik ~,'u +~ ~t~t ~ 4~ -. J ~}~~ j w ~~ ~ }: ~~ ti~ +1 1..~ r a. ,f,. F Tvv~~ e ~1 4 ,w„~ ~~p~ ~' ,r r, ~I ! y ~ !i ~r ~ r+ 1 *~i', i "~ , It i ~ ~ v 1 t4 ~' ~ , f Pi~'~~1~ ~ ., j ` 1 J'~ , ry ,.~ , 4 t'i , , i e ~, ~4 A ,ri~ a;!. . ~ ~ ~~ r ~~ •k4 r„ ~ ~ ~ r ~,~ ! r ~ ~ fir, ~~ !,~. V!'~E T ro~A;° ~~H ~ yLYrr~ !~ ~.,~.1 rx.1 ~ "~~ ~L q t ; Ito A ! i a , "1 ~ j1 ~ , ~ ~' r , •~t 'Irf 1t ~y'~ ~ ~ r d ~~i ik vk ~ ' ~ (" > r c ~. '~, - L,+~-r ~- f,,~~ a b~!,~; art r I ~ S•/ i'! ~ ~f M~*V1 n f~r~ ~ ~ T M i r ~. ; •r ~. f y..jM "' r-cf It41 ._~q r~R Ilr~vrv,~t1~ u'`t E':"•rM tW. ti,+` +~r1 4~+fc1 ~,. $~y,~'~~`t 1~` !~~ ~„V .a{d' ~,<-„~y ~'~ aI t ~'' r~l / 1 °! + 6 t i; r l l '~ i / i ~~' ~(' rl ~ 17f'~ 3 ~ ~ ~~ `~ ~,~ ~kY ~ ~ ~ r i ~~ ~ ~ t II 2 Y f +4~tkr r k~~t5/ ~ a: ( ~ ~} N r r ~•.,~ 1 r4ti~~'iq iM rrY ~ ~lN~~~!1 '!t1 ~ *~ ~ ~ i t~'; ~ ~.~ ~'~~~~~ ~rCd y to U .a~ r ht., ~tlrpt~ . ~t.l, "!~ ~ !~~t(} „~'y ''M.nK:. .`-~' ~~t.~ti.,~- ! ~ ' ~~ r~`~ td: t 41b1~r ~J • t!~!:hh,}~j~ }~ryw~,~ ~~~yr,,3t ~ ~. 1"•!`1° 'ar ~~~tt~',~!~`i9~4fi~~'~h~'k~F '"J k ~ P.~LL ~`~' r 3 ~,r,, It x ~ e i < < r '.i ~'~-'~ f "!r`~~ - it ~l'. ~ rrJi( P ~ ~ ~ !~~ ~t~~ '~ ~ f ~ e~ ~~~~, ~" ' ~ ri ,~s., y~' k~ kr!~~~ '~'~~~~~~y~' ~ ~`w'~~rt q'+~jt,t ~ ` ~.. t _ _ • ,. ,.a .v •if ;i~'u"„ ,-w +r aMhbll6 .vx„,,. "ad^•rer,::~~i i~t'eni~,ad. ~,;e,'.;~ '.~.,+e~' ;<«!kk.::x,.t"~ ;,..xra, ., ,,. '. .~..~, .V s..r:. .v ,rxedert?'~ar nc~r ..~r rv, -,v., ,.. _. .. 1; ^ . i - _ ,:~~-~:.:_ i A • r „rr. • - ~ ,T. '~`.:.a.'~rLt4fi r~.uitose .aY,d.'xm-+,~ -~e-.s American Motors LEASE AGREEMENT (CLOSED END LEASE) Full or Non-Maintenance - - -Agreement No .......................... ... England )(.easing, Inc. ___ - _ -- Name of American Motors Lease System Member) 20th December 71 This agreement made this----.------- ..---------.-----...__day of-- - ----------------- - -- - - -_..-... 19.- -between Baglaad I.easittg, Inc. 423 S. Cameroa St., Harrisburg, Penna. in - - - -~-- -- ------.------...._.a corporation, with offices 17101 W100 _--....hereinafter referred to as City and State Carlisle, Peaaa. 17013 "Lessor", and-......_....- -- _... - _...- -- --....o ----....-._...------- - --.....- - hereinafter referred to as "Lessee." WITNESSETH: Lessor hereby agrees to lease to Lessee, and Lessee hereby agrees to hire from Lessor for the term and at the monthly rental rates hereinafter specified, the following automobile(s): MODEL BODY MONTHLY MONTHLY MAKE YEAR STYLE V.I.N. RENTAL RATE RENTAL TAX EQUIPMENT: 1972- • Ambassador A1A8S7P170869 $ 120 .~~~ `v $222 ~0 to and such additional automobiles as shall become subject to this lease agreement in the manner hereinafter provided. Lessee may, by written request to Lessor, order additional automobiles from time to time at a monthly rental to be agreed upon between the parties. Such additional automobiles fur- nished by Lessor pursuant to such request shall be subject to the terms and conditions of this agreement unless otherwise provided in writing by the parties. Terms It being expressly agreed that this is a contract of leasing only, and that the Lessee shall acquire no right, title or interest in or to the property described in this agreement. The lessor does hereby agree to lease to Lessee, and lessee hereby accepts from Lessor, the Motor Vehicle(s) as described herein or in attached Schedule A and subsequent Vehicles taken all of which will be subject to the conditions and provisions of this lease. FORM AM 3759 ~3 ~~ Rental The rental period shall be for. Period - - 24 - -----..._ months; beginning on the date of delivery of the vehicle(s) which is described herein or in attached Schedule A. All payment shall be made at the office of the Lessor in .............~t~r~.sbnr8. pe~~ 171Q1............--...--.-...-. State or at such other place as the Lessor may designate. The lessee shall during the term her pay the Lessor for the use of said vehicle(s), a monthly rental figure, without deduction of any kind in the amount set forth herein or in attached Schedule A. All rental payments are payable in advance on the first day of each month. The first and last payments for the first and last months shall be pro-rated for the actual days used in said months. Return of Upon expiration of this lease, the Lessee shall return and deliver said vehicle(s) to Less 1(ehicle(s) at the point of delivery, or any location mutually acceptable to both Lessee and Lessor w or , all accessories and equipment delivered in connection therewith, in good condition and repair, reasonable wear accepted. Any damage due to neglect and abuse, such as operation of vehicle(s) without oil, grease, water or any anti-freeze or any damage to the vehicle(s) not covered by insurance shall be the responsibility of the Lessee. Maintenance __ xeasee_ -_ and Repairs o _ _ _ __ . _.. _ _ ....shall keep and maintain each vehicle in good Aerating condition and working order, using as a guide the maintenance program prescribed in the Owner's Manual, and shall perform all preventive maintenance required to insure full validation of the manufacturers warranty, including all mechanical maintenance repairs, lubrication and oil filter changes and __ _ __aQ>G1s-._ __-new replacement tires required for the safe operation of each vehicle. The Lessee shall be responsible for providing all necessary gasoline, engine oil, storage and washing. Lessee shall have all repairs and servicing of vehicles leased hereunder performed by an authorized new car dealer of the make of vehicle under lease. In case of an emergency, the Lessee may have repairs performed at any suitable repair station. Any expenditures for repairs in excess of twent the Lessee to obtain rior a Y ($20.00) dollars will require P pproval of Lessor before authorization of the work is to be per- formed. It is further required that the original itemized invoice evidencing the necessary repairs shall be forwarded to the Lessor at time of request for payment. Reimbursable repairs for maintenance are not to be deducted from the next rental payment due Lessor. Insurance Lea ee shall - procure and maintain at its own cost throughout the terms of this agreement comprehensive, fire and theft insurance, and collision insurance with a.._100...OQ_._..-...deductible provision. It is expressly understood that the Lessee shall be liable for, and pay, any repairs not covered by virtue of the deductible provisions of such insurance or arfy -loss not compensated by insurance. This insurance policy to be issued to cover the interests of the Lessor. - - -- _ _....I,oasae_ ___ _ - -_ _.. . --...-_.-....shall, at its own ex ense in force throughout the entire term of this agreement, insurance in co pan es ac eptable to Lessor covering vehicle(s) hereunder, naming the parties hereto as the assured as their interest may appear in the following amounts. Public liability insurance with minimum limits of -- - -- - _?54.,OOp--'SQQ,QQO - - - - Property damage insurance with minimum limits of-__.... --.-~--_- -------------- ----- - -- _ _. __ .. _ .'_ _ .__.. -_._ -.. .-' Certificates of insurance evidencing the existence of such policies shall be issued in the name of the Lessor, and shall be held by the Lessor. All insurance policies shall bear an endorsement requiring not less than ten (10) days written notice to the insured from the insurer of cancellation of any policy for any reason. Lessee shall notify the Lessor as soon as practical whenever a leased vehicle has been involved in an accident. The Lessee shall notify the insurance company issuing the policy of automobile injury and property damage insurance immediately, and in the event an is made or action commenced for damages resulting from bodil in'ur or y claim Lessee shall make the necessary reports to the Lessor th y ~ y Property, the e insurance company, and ~~ cooperate with them, as they deem it necessary. Lessee further agrees to cooperate with Lessor in collection for any loss of or damage to a leased vehicle for which a third party is responsible. Lessee shall indemnify and save and hold Lessor harmless from -any and all such claims, demands, liability, action suits and judgments, and all court costs and attorney fees resulting from any and all claims for personal injury or damage to property resulting from the use or operation of said vehicle(s) during the term of this lease. Assignment Lessor may assign this agreement along with collateral documents without prior consent of and Use Lessee to financial institutions as security for indebtedness of Lessor, and all rights, title, and interest of Lessor in this agreement shall enure to the benefit of the assignee and its succes- sors and assigns. Lessee shall not dispose of, assign or transfer said vehicle(s) or any interest therein under this contract. It is further agreed that all operation of any lease vehicle(s) shall at all times be emp oyees,sagent gord persons desigr Hated by the Lessee. It is further understood that the use of said vehicle(s) leased hereunder will not be for the transportation of persons or property for hire. License and . ........ .......... .._.-.L~tasor_.. Registration p ~- .-. -- .-....shall provide at its own expense one set of State license lates, Vehicle Tags, and inspections required to operate said vehicle for each calendar year. Should the vehicle be transferred to a different state during any calendar year the Lessee shall assume complete responsibility and shall purchase at its own expense the necessary state license plates and any other fees or taxes required to operate said vehicle. - - --- - ....... ........ Lesaaa-- ....___........ - - -~- -- ---...-.....shall pay all state sales, use and rental taxes in the state where vehicle is originally scheduled to operate. Any and all additional state or local excise, personal property and Ad Valoram taxes now and hereinafter in effect with respect to said vehicle by the reason of leasing vehicles hereunder shall be the responsibility of the Lessee. Insignia Lessee shall be required to obtain prior consent of Lessor before an decal or advertising may be affixed to any lease vehicle. It shall be further unfderstoodsthat should such approval be extended that said vehicle(s) shall be returned to Lessor in as good condition as prior to the time the accessory, decal, insignia and advertisement were affixed to said vehicle(s). - • - Use It is contemplated by the parties to this agreement that the vehicle(s) described herein shat not be driven in excess of.-.-...42-,000-_- _ ....thousand miles durin the term of this lease. In the event that said vehicle shall be driven in excess of........ - 42,0~0 _-thousand miles, then in addition the rental stated herein the Lessee shall pay to Lessor.-..-Five mile for each mile in excess of-....42-,000 --,~-...--.cents per .-- -.--.....thousand miles. This amount will be paid to the Lessor upon the termination of said lease. Notice Any notice given under this agreement by either party shall be sent forth by re istere to the address contained in this agreement. 9 d mail Indemnification Lessee agrees not to hold Lessor liable for the loss of any profits or any damage or failur by the Lessor to render any service or supply any vehicles under the terms of this lease agreement should the failures result from strike or other labor troubles, fire or acts of God, or any other causes which are beyond the control of the Lessor. Legal Lessee agrees not to Covenants Federal, State or Munic pal'st tutee aw oreord nanceu rule or regulation aviolation of any operation of such vehicles and shall indemnity and hold Lessor harmless f opm any and tall fines, forfeitures or penalties incurred by Lessee for traffic violation or for the violation pf D ` < ~ y ~. i . 11 r .y J ~ ~ {, . I * ; ""~ ~ ~ ~ ~~ any Statute, Law, caused by the confiscation thereof by any public authority by reason of illegal use thereof by Lessee or its agents, servants or employees. Lessee shall be liable to Lessor for loss of said vehicle(s) resulting from conversion or larceny by any of the agents, servants or employees of Lessee. Default Time is of the essence of this agreement and in the event Lessee shall be in default in any of the payments hereunder or any of the provisions hereof, Lessor shall have the right to terminate this agreement and repossess the motor vehicle(s) leased hereunder and all acces- sories and equipment attached thereto, with or without notice, and without prejudice to such other remedies as Lessor may have for the collection of any sum or sums due or to become due Lessor from Lessee or otherwise defaults in any of the terms, conditions and covenants of this agreement, Lessor shall have the right to employ an attorney to institute appropriate legal proceedings to repossess said motor vehicle(s) or to recover the value thereof to collect any amount due Lessor, or to enforce any other breach by the Lessee and thereon Lessee hereby agrees to pay Lessor any costs, expenses and reasonable attorney's fees incurred by Lessor. Lessor shall have the right to terminate his lease, without notice to the Lessee, if Lessee shall have filed a voluntary petition in bankruptcy, shall have made an assignment for the benefit of creditors or if any involuntary petition in bankruptcy shall be filed against Lessee, or if a receiver shall be appointed for Lessee's assets, or if Lessee shall have permitted or suffered any distress, attachment, levy or execution to be made or levied against any or all of the property of Lessee. If the Lessor shalt elect to terminate this lease by reason of events as described in this paragraph, Lessee shall not be relieved of any liability for its failure to make any of the payments required under this agreement or for the lessee's failure or inability to perform any of the terms and conditions of this agreement. Waiver Failure of either party to insist upon the performance of the terms or conditions of this agreement, shall not be construed thereafter as waiving any such terms and conditions, but shall continue to remain ,in• full force and effect as If no such waiver had occurred. The agreement. between'rthe parties shall be binding on the respective parties and their heirs, executors, administrators, legal representatives, successors and assigns. Any amend- ments, alterations or supplementary provision that may be made subsequent to the date of this agreement must be in writing and duly executed by the authorized agent of each of the parties hereto. This lease is executed in triplicate and a copy thereof delivered to Lessee, receipt of which copy is hereby acknowledged by Lessee. IN WITNESS WHEREOF, Lessor and Lessee have caused these presents to be executed the ~, ; day and year first above written. u:::~. x At the end of this contract W100~ Inc. has the option to purchase this automobile at $1500.00 ~' •~ ;~. ~: , ~; ~,. ., ....-,........_........._..._........__........Stxglan+d....Leasing,._.Inc....::.,._,_.:;.~.,«s ~ ;; (lasso ;. ti ~ ,,n ,< ,x ey......_ ............. ........... __ _._.........._...._..:....... ...:,,.._~en...M~ tNam 8 Title) , r' + ~ > f i ~, i" W i I _.,.. ,. ~, . ,,.. .~ ~ .. ~ ,. r~ 7 `7 ; 1 v " 'yy 'ter ~ /~/ }~ i~~ ray ^ ~ '~ ~ t. i e ~d~ . ( " ©!" /yam-..~~~~7t7...r ~~..~..4.. 4 ..J~.w.... ~.~r ta.~ ~ .. F' ~ t~ Vi? T 7~.~T r r ~) 'tl - , ~~ ~ .. ~ t rI 1"Y~. ~., l.L}ill~li ~I~ttl - ~, a t, n t ~ . , " ~ y ~ _ .~~.tyT.~ w e• ... ~n~ .,~ .. '1 ~, ,.k'. • .r i4Jr «:4 •:.• . ic,~: -'o; .:. . b..~.=.i-- # e,. ~, ',1 ,•a=: <.i .:, ~, ~ 'Yt, e. .w < ~ ~9,. '+ ~ .. .- .. a ~ • ~ a ~~ ~~~~, ~,~ i IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW WIOO, INC., Plaintiff vs ENGLAND MOTORS, INC. and ENGLAND LEASING, INC., Defendants No. 1178 Civil, 1976 REPLEVIN ORDER OF COURT AND NOW, April 19, 1976, after hearing, it is ordered and directed that a Writ of Replevin issue and possession of the vehicle be delivered to WIOO, Inc. on posting of bond in the amount of $4,000.00. BY THE COURT: .-...,~, °~d ~ o ~~ J. William M. Gross, Esq. Milton Bernstein, Esq. :cek W~, -rte r; _ . `'~, - ; __am _ '~°; ~f B ~^~I00 , INC . , TJS . Plaintiff ENGLAND MOTORS , II~TC . and ENGLAND LEASING, INC., Defendants IN TIE COURT OF COP~II~ION PLEAS OF CUMBERLAND COUNTY, PENNSYLVArdIA N0. 1178 CIVIL TERM, 1976 R.EPLEVIT°3 REPLEVI~I BOND KNO';a ALL MFN BY TIiESE PRESENTS, that we WI00, Inc., Principal, 130 York Road, Carlisle, Pennsylvania, and Harold Swidler, Surety, 845 Hamilton Street, Carlisle, Penns=alvania, are held and firmly bound unto the Commonwealth of Pennsylvania as obligee in the sum of Four Thousand (54,000.00) Dollars, lawful money of the United States of America, to which payment well and truly to be made, we do bind ourselves, our heirs, executors, administrators, successors and assigns, jointly, severally, firmly by these presents. WHEREAS, the plaintiff in the above named action has instituted an action of replevin by writ with bond to t'ze said court term and number against the defendants; A~"vD, iIO~~.+ TI-IE COP~IDITION OF THIS OBLIGATION IS SUCH, That if the plaintiff fails to maintain its right of possession of the property it shall pay to the party entitled thereto the value of the property and all legal costs, fees and damages sustained by reason of the issuance of the said writ of replevin with bond, then this obligation shall be void; otherwise it shall remain in full force and virtue. /~~~ Dated this ~i/ day of April, 1976. WI00, INC. ~ '~ t , . .: r Harold Sw~,d1 iz.;'" President ~~. l -- .. L aro d Sw- ler; Surety ___. .: A' WI00, INC., VS. Plaintiff N0. 1178 CIVIL TERM, 1976 ENGLAND MOTORS, INC. and ENGLAND LEASING, INC,, Defendants PEPLEVIN AFFIDAVIT OF SURETY FOR REPLEVIN BOND AMOUNT OF BOND $4,000.00 Harold Swidler being about to become surety in the above entitled case, and being duly sworn according to law deposes and says: 1. I reside at 845 Hamilton Street, Carlisle, Pennsylvania, and my occupation is manager of radio station WI00. 2. I am the owner of the following real estate in the County of Cumberland, Commonwealth of Pennsylvania: (a) 180 York Road, South Middleton Township, consisting of land and a building leased to WI00, Inc., and having a value of approximately $45,000.00. (b) 872 Carlisle Pike, North Middleton Township, consisting of land and a building leased to EW, Inc. (Electronic j^T11olesalers) , and having a value of approximately $60,000.00. (c) R. D. -ail, Carlisle, South Middlesex Township, consisting of over 22 acres being used as a golf driving range and sports recreation area,and having a value of approximately $100,000.00 3. There are no encumbrances against the said real estate except mortgages totaling appr~~~imately $42,000.00 4. The title to the said real estate is in my own name and the same is not subject to any trust. • IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA • 5. Deeds for tine said real estate are on record in the Off ice of the Recorder of Deeds of Cumberland County. 6. There are no judgments against me affecting this real estate. 7. I am not surety in any other case, or for any public officer. ,~-' ,~.- ~.. ~~ ,- _ ~~ ,. _ --, '= Harold Swidler Sworn to and subscribed before me this d?/';day of April, 1976. U-_ ~~ NoTaR~r Pu Nsy Carsmission Expires Setember 17; 1978 1auphia County; Pennsylvania The above-named deponent is approved as surety in the above case. ~ .~~ ,, .,,.._ Prothonotary -2- ~~ ~~ ~~ i l ~j ,~ ~' . \ ~ ~~~ ~~ ~ O W100, INC., Plaintiff vs. ENGLAND MOTORS, INC. and ENGLAND LEASING, INC., Defendants • IN THE COURT OF COMMON PLEAS OF CUMBERL ~ D COUNTY, PENNSYLVANIA N0. 117f,! CIVIL TERM, 1976 REPLEVIN COUNTERBOND KNOW ALL MEN BY THESE PRESENTS, that we, ENGLAND MOTORS, INC. and ENGLAND LEASING, INC., principals, both located at 425 South Cameron Street, Harrisburg, Pennsylvania, and EDWIN M. ENGLAND and M. NAOMI ENGLAND, sureties, residing at Westgate Garden Apartments, 1149 Columbus Avenue, Lemoyne, Pennsylvania, are held and firmly bound unto the Commonwealth of Pennsylvania as obligee in the sum of Four Thousand ($4,000.00) Dollars, lawful money of the United States of America, to which payment well and truly to be made, we do bind ourselves, our heirs, executors, ad- ministrators, successors and assigns, jointly, severally, firmly by these presents. WHEREAS, the Plaintiff in the above named action has in- stituted an action of replevin by writ with bond to the said court term and number against the Defendants. AND, NOW THE CONDITION OF THIS OBLIGATION IS SUCH, that if the parties filing this counter- bond fail to maintain their right to possession of the said property they shall pay to the party entitled thereto the value of the said property, and all legal costs, fees and damages sustained by reason of the delivery of the said replevied property to the said parties filing this counterbond, then this obligation shall be void; other- wise it shalt remain in full force and virtue. Dated this 22nd day of April, 1976. ~,_l ATTEST: / Sec/retary ~~~ ~ ';~ ~~ ~({~ia l~ / ecretary; /, ~~ ~ ~i~ ~~~.-~-P~ j S EA L ) ~__ ~~~ e E win M. ng a ENGLAND MOTORS, INC. ~ ~ .. r, B y ~ ,f _-t.. ~--.__ 1~ 1~ ._._ President ENGLA LEASING, INC. ~., - Presi ent ~^. ~'~..~.~. `~ ~,. c:, ; (SEAL M.~aom~ ng~ and- _=~ (.- ~ ~ W100, INC., Plaintiff ~ IN THE COURT OF COMMON PLEAS OF vs. ) CUMBERLAND COUNTY, PENNSYLVANIA ENGLAND MOTORS, INC. and ) N0. ~~ CIVIL TERM, 1976 ENGLAND LEASING, INC., ) Defendants ) REPLEVIN SURETY FOR REPLEVIN BOND AMOUNT OF PROPERTY SECURED - $4,000.00 EDWIN M. ENGLAND and M. NAOMI ENGLAND, about to become sureties in the above-entitled case, and being duly sworn ac- cording to law, deposes and says: 1. We reside at Westgate Garden Apartments, 1149 Colum- bus Avenue, Lemoyne, Pennsylvania. 2. We are the owners of real estate in the County of Cumberland as follows: houses and lots on 6230 Carlisle Pike, Hampden Township. 3. The value of the said real estate is Two Hundred Fifty Thousand ($250,000.00) Dollars and the rent is Five Hundred Eighty-Five ($585.00) Dollars a month. It is assessed for the purpose of taxation at the value of One Nundred Fifty Thousand ($150,000.00) Dollars and is so assessed in our names. 4. There are encumbrances against the said real estate as follows: mortgage to secure the sum of Seventy Thousand ($70,000.00) Dollars and there is no other judgment binding the said land or mortgage, ground rent or other encumbrance of any kind, except those above named. 5. The title to the said real estate is in our own names and the same is not subject to any trust. 6. We obtained the said real estate in 1971 by deed recorded in the Office of the Recorder of Deeds in and for Cumber- land County. ti7 • 7. There are no judgments against us. $. We are not sureties in any other case, or for any public officer. /% 111 _ ~' ~ .. ~'~~-- (SEAL ) - E~w~ n ng an _ ;, } ~, ~~ ~ u o ~ u4 ~ (SEAL) M. aomi ng an Notice of application for approval of this surety was given to the Pi ai nti ff by writing on the =.~"~~`~'day of F-!t'~SiL , 1976. -, i i, Attorneys or De en ants The above-named deponent is approved as surety in the above case. ,,-~ ,~ ' Prot onotary -2- ~-~- ~ ~~23 ~:~~ @~ ,. COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND SHERIFF'S RETURN WI00, Inc. vs. England Motors Inc. and England Leasing Inc. • In the Court of Common Pleas of Cumberland County, Pennsylvania No, 1178 Civil 1976 Complaint in Replevin Robert B. Failor, Sheriff, who being duly sworn according to law says, that he made diligent search and inquiry for the within named defendant, to wit: England Motors Inc. and England Leasing Inc but was unable to locate them _in his bailiwick. He therefore deputized the sheriff of Dauphin County, Pennsyl- vania, to serve the within Complaint in Replevin On April 19, 1976 return from Dauphin Sheriff's Costs: Docketing 10.75 Service 1.20 Dauphin' co. 13.95 $ 25.90 pd. by Atty. 4-23-76 Sworn and subscribed to before me this ~~~ day of ~ , ~rothon a ry ~-- t. this office was in receipt of the attached County, Pennsylvania. So answers: .--;r 3 ~ ~._--- ROBERT B. FAI LOR, Sheriff ` In The Court of Common Pleas of Cumberland County, Pennsylvania W I00 VS. England Motors Inc and England Leasing Inc. 1178 Civil 76 No. --------••---------- --------------------------•-----------------~ 19---------- Now- ----------------•--._ Aril 9 __ ,,,, , „ 19.....6, I, SHERIFF OF CUMBERLAND COUNTY, PA., do hereby deputize the Sheriff of ___________________________Daupll-~1_-__-__-_-_----_-_-----__•____-_- County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, Pa. Afi'idavit of Service Now- --------------------••-•-•----------------•---•-----------•--...---------------•--~ 19------------~ at -_...----------------------- o'clock ------------M. served the within .-....--••--•---------------------------------------------------------------------------•---•-----------...-------------•---------------•----------------------------------- upon .--•---••-------------------•------..._...-------------•---------••---•-•-----•------------------------------------------------------------------------------------------------------- at ..--••-------------------------------------•---•-----------------------------------•-•--------------------------------------- ------------------------------------------------------------- by handing to ----•-------•-------•--•-----------•-•------•-----•--------•--------------------•---•-------------------------------------------•---------------•-•----------------- a copy of the original ---------------------------------------------------------- and made known to .--••--------•----------•--------------------------------------------------------------•------------ the contents thereof. So answers, Sheriff of County, Pa. Sworn and subscribed before me this ---------•-- day of .-------•-•---•----••-------- COSTS SERVICE ------------------------ $ 19-------- MILEAGE ---------------------- AFFIDAVIT ------------------ -------------------------------------- Form D-4 ~~ s_,A ~i ~ COMMONWEALTH OF PENNA ; COUNTY OF DAUPHIN , SHERIFF'S RETURN NO. 117_: ~ ivi. 1 197 WITHIN AND NOW: f1~r i 1 12, 197 6 , at 1:55 '' . M. ,~~- plaint i,z ~:eplevin SERVED THE UPON '?nal:?n,i !•~atars, lnc. Rnd Ennland L~~asin~l, Inc. de.it~. BY PERSONALLY HANDING TO P.1r~=. '~?arr~aretta ~ot~;i<~11, ~=~ecretzrv and ~arts~ in ct~ar~e ~f their. of: ice at thL~ time of scr~.~ice hereof, A TRUE ATTESTED COPY OF THE ORIGINAL ' om p l a i n t i n mr n I e~~ i n AND MAKING KNOWN TO h`r THE CONTENTS THEREOF AT t':~eir of Ci ce, ~~ 7 :; 711tH ~c1i??:`ron ~itreet, F~~Lrrl~')Urr, ~'c7U[~'ltti ~1Q~lntV, i'CtlnStllVa'i ta. SO ANSWERS r~ ~•.,~r.~ _ ., . ., , , ,~ SHEKIFH' OF DAUPHIN COUNTY, Ph:NNr1. RY ~~ ~ K~ DEPUTY SE-Ir.:RIr'F Sworn and subscribed to befor_ e me this 13th day of .~1pr i 1 197 6 y f7 r~th~r.-~tary Sher i_f `' ~ ~~st~ ~ 13 °I~S ~~""`~'i ~/~Sf ~7' ,_~,., • ~ W100, INC., ) IN THE COURT OF COMMON PLEAS OF Plaintiff ) vs. ) CUMBERLAND COUNTY, PENNSYLVANIA ) // 7N ENGLAND MOTORS, INC. and ) N0. -11.9- CIVIL TERM, 176 ENGLAND LEASING, INC., Defendants ) REPLEVIN A N S W E R 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted in part, denied in part. It is admitted that the Defendant, ENGLAND LEASING, INC., is engaged in the busi- Hess of leasing automobiles. (There being no such Defendant named England Motors Leasing, Inc., it is assumed that the Plaintiff intended to describe the Defendant, ENGLAND LEASING, INC. in its averment.),~~It is denied that ENGLAND LEASING, INC. is a corporate entity utilized by ENGLAND MOTORS, INC. in connection with the operation of the Tatter's business. On the contrary, it is averred that the Defendant, ENGLAND LEASING, INC., is a separate and distinct corporate entity operating independently of ENGLAND MOTORS, INC. and is in the business of leasing automobiles. ENGLAND MOTORS, INC. is a separate and distinct corporate entity in the business of selling new and used automobiles. 8. Admitted in part, denied in part. It is admitted that the Plaintiff entered into an oral agreement with the Defen- dant, ENGLAND MOTORS, INC., on or about January 1, 1974. It is denied that the substance of that agreement was set forth in subparagraphs 8(a), 8(b), 8(c) and 8(d). On the contrary, it is ,jj ~ • averred that the oral agreement entered into by the parties was to provide radio advertising to ENGLAND MOTORS, INC., such adver- tising to run for the term of a written lease entered into between the Plaintiff and the Defendant, ENGLAND LEASING, INC., (Exhibit "A" of the Plaintiff's Complaint), for the lowest quoted rate and in an arnount equal to the monthly rental amount due under the terms of that written lease. The Defendant, ENGLAND MOTORS, INC., agreed to pay the Defendant, ENGLAND LEASING, INC., the rental amount in return for the advertising provided by the Plaintiff. It is specifically de that ENGLAND MOTORS, INC. would tising. On the contrary, it is did not own the vehicle or hold make the lease payments for the advertising provided. Hied, as averred in Paragraph 8(a), trade the vehicle for radio adver- averred that ENGLAND MOTORS, INC. title to it and only agreed to Plaintiff in consideration of the It is specifically denied, as averred in Paragraph 8(b), that the amount of advertising was in exchange for the vehicle, or that it was for any lump sum, or that performance was to take place over a period of time as requested by ENGLAND MOTORS, INC. On the contrary, it is averred that the amount of advertising that the Plaintiff was to perform was to be equal to the monthly lease amount due to ENGLAND MOTORS, INC. on the aforementioned lease, based on the lowest quoted rate for such radio advertising, and that the advertising was to continue only for the term of said lease. Paragraph 8(c) is denied. On the contrary, it is averred that the Plaintiff entered into a written lease with the Defendant, ENGLAND LEASING, INC. for the purpose of obtaining an automobile for use by the Plaintiff, that the terms of the agree- ment were fixed by the written agreement, that no oral modification of the terms occurred and that the option to purchase could only be exercised at the end of the term by the payment of One Thousand -2- --~ ~ ~ Nine Hundred ($1,900.00) Dollars to ENGLAND LEASING, INC. The Defendant, ENGLAND MOTORS, INC., denies that there was any oral agreement made which would have altered the terms of the written lease between the Plaintiff and the Defendant, ENGLAND LEASING, INC., and, on the contrary, avers that the only agreement between it and the Plaintiff was for the monthly advertising, as previ- ously described above, and that no agreement concerning the option payment was ever discussed or agreed to in setting the amount of advertising to be provided. Paragraph 8(d) is denied wherein it avers that it was the oral agreement between the Defendant, ENGLAND MOTORS, INC., and the Plaintiff which gave the Plaintiff the right to possession. On the contrary, it is averred that only the written lease made between the Plaintiff and the Defendant, ENGLAND LEASING, INC., gave the Plaintiff the right to possession, and that title would not pass to the Plaintiff unless the Plaintiff exercised its option to purchase at the end of the lease. Under the terms of the aforesaid lease, the option was to be exercised at the end of the lease agreement, December 31, 1975, by payment of One Thousand Nine Hundred ($1,900.00) Dollars from W100, INC. to ENGLAND LEASING, INC. Upon expiration of the lease, and failure to exercise the option on December 31, 1975, the lessee, the Plaintiff, was re- quired to return and deliver said vehicle to ENGLAND LEASING, INC. under the terms of the aforesaid written agreement. 9. Denied. On the contrary, it is averred that the Plaintiff dealt with the Defendant, ENGLAND LEASING, INC., as evidenced by the written agreement between the two, for the pur- pose of leasing an automobile, and that its oral agreement with the Plaintiff, ENGLAND MOTORS, INC., was for the sale of radio advertising. 10. Admitted in part, denied in part. The averment in Paragraph 10 is admitted only insofar as it purports to set forth that radio advertising was broadcast and charged to the -3- ,:~ ~. i • Defendant, ENGLAND MOTORS, INC. ~`It is denied insofar as it pur- ports to be the understanding between the Plaintiff and the Defendant, ENGLAND MOTORS, INC., for the reasons set forth in Paragraph 8 above. It is further denied insofar as it purports to reflect that the charges set forth on the Plaintiff's state- ment of account (the Plaintiff's Complaint Exhibit "B") are reasonable and proper. On the contrary, it is averred that inso- far as advertising was performed beyond December 31, 1y75, unauthorized advertising was performed and that the charges for same which were placed on the Plaintiff's statement of account with the Defendant, ENGLAND MOTORS, INC., are therefore not rea- sonable and proper. 11. Admitted in part, denied in part. It is admitted that the sum of Five Thousand Five Hundred Twenty Dollars and Forty-Eight Cents ($5,520.48) was the total sum which was due on the lease and that it was set forth as a credit on the aforemen- tioned statement. ;'It is denied that there was an agreed upon trade price of Seven Thousand Four Hundred Twenty Dollars and Forty-Eight Cents ($7,420.48) for the vehicle or that an addi- tional One Thousand Nine Hundred ($1,900.00) Dollars was to be entered as a credit entry. On the contrary, it is averred that the aforementioned statement of account, insofar as it reflects the posting of credit of Five Thousand Five Hundred Twenty Dollars and Forty-Eight Cents ($5,520.48), shows the correct status of the agreement between the Plaintiff and the Defendant, ENGLAND MOTORS, INC.; that is, that there was an agreement to provide the Defendant, ENGLAND MOTORS, INC., with monthly adver- tising in the amount of the payments which would at the end of the lease total to Five Thousand Five Hundred Twenty Dollars and Forty-Eight Cents ($5,520.48), and which the Defendant, ENGLAND MOTORS, INC., would make to the Defendant, ENGLAND LEASING, INC., for the Plaintiff by the end of the term. -4- ~~ ~~ • • 12. Admitted in part, denied in part. It is admitted that the aforementioned statement of account (Plaintiff's Com- plaint Exhibit "B") does reflect a prior credit balance of Forty Nine Dollars and Ninety-Eight Cents ($49.9$) and various invoices posted as credit entries.,'It is denied, insofar as the averment in paragraph 12 of the Plaintiff's Complaint refers to the aver- ment in Paragraph 10 of the Plaintiff's Complaint that there was prior knowledge of or agreement to or understanding with regard to these entries on the part of either of the Defendants. On the contrary, it is averred that these entries were made by the Plain- tiff without any agreement with either of the Defendants that they are self-serving, that there is no connection between these en- tries and the oral agreement averred by the Plaintiff in its Complaint, and that after reasonable investigation, the Defendants are without knowledge or information sufficient to form a belief as to the truth of the averment as it relates to the balances shown and proof is demanded at trial. 13. Denied. On the contrary, it is averred that the Plaintiff is under no obligation to perform additional advertising, that no authorization or agreement exists for any advertising per- formed past December 31, 1975, and that the balance shown to be due on the aforementioned statement of account is within the con- trol of and was created by the Plaintiff and does not reflect the true status of the agreement made between the Plaintiff and the Defendant, ENGLAND MOTORS, INC., since charges are shown therein for unauthorized advertising broadcast subsequent to December 31, 1975. 14. Admitted in part, denied in part. It is admitted that there were prior transactions wherein radio advertising was purchased by the Defendant, ENGLAND MOTORS, INC., and automobiles were leased and finally purchased by the Plaintiff from ENGLAND MOTORS, INC. and ENGLAND LEASING, INC. It is further admitted that one of those transactions (the Plaintiff's Exhibit "C") was similar in its inception to the transaction which forms the basis _5_ ,i ~~; r for this cause of action.,,~'However, the Plaintiff's averment representing the nature of those agreements, to wit, that "auto- mobiles were traded for radio advertising", is denied, and it is further denied that the results which obtained from the prior transaction were similar. On the contrary, it is averred that the prior lease (Plaintiff's Exhibit "C") resulted in a purchase by the Plaintiff only because the Plaintiff exercised its option on a timely basis by meeting with Harold England, then President of the Defendants, ENGLAND MOTORS, INC. and ENGLAND LEASING, INC., prior to the termination of the lease, to reach an agreement which would effect that result, and that this agreement is re- flected, in part, by the Plaintiff's own entries on its afore- mentioned statement of account. 15. Denied. On the contrary, it is averred that the Plaintiff did exercise its options in prior transactions by doing those things which were required of it and which were agreed to by the parties in advance of the transfer of titles. 16. Admitted in part, denied in part. It is admitted that, as to those statements received, no objection or question concerning such entries as were made therein was made by the Defendant, ENGLAND MOTORS, INC., there being no need to do so. It is denied that statements were received each month. On the contrary, it is averred that the statements which would have re- flected the continuation beyond the lease term were not received by the Defendant, ENGLAND MOTORS, INC., until the issue which forms the basis for this cause of action, the question of the exercise of the option was brought to the attention of the Plain- tiff in March, 1976. 17. Denied. On the contrary, it is averred that the Plaintiff lost its right to possession of the vehicle on January 1, 1976, having failed to exercise its option to purchase said vehicle by payment of the Defendant, ENGLAND LEASING, INC., of One Thousand Nine Hundred ($1,900.00) Dollars on December 31, -6- 1975. It is further denied that the Plaintiff ever had the right to maintain possession by virtue of any agreement it might have had with the Defendant, ENGLAND MOTORS, INC., to provide adver- tising. On the contrary, it is averred that its sole right to possession was in accordance with the terms of the written lease executed between it and the Defendant, ENGLAND LEASING, INC. (the Plaintiffs Exhibit "A"). 18. Admitted in part, denied in part. It is admitted that the vehicle was removed from the driveway of Harold Swidler, President of the Plaintiff, on March 27, 1976. It is also ad- mitted that such articles as were within the vehicle were removed from the premises by virtue of their being contained within the vehicle. ,°'It is denied that the vehicle was removed without notice or warning of any kind. On the contrary, it is averred that the Plaintiff had prior notice that the car would be recovered by the Defendant, ENGLAND LEASING, INC. Such notice was given at a meeting which occurred between Harold Swidler, President of the Plaintiff, and Roger England, manager of the Defendant, ENGLAND LEASING, INC., on or about March 22, 1976, at the Defendant's place of business. It is further denied that the vehicle was locked when it was recovered. On the contrary, it is averred that the vehicle was not locked, that it was removed from the premises and taken directly to a location where the contents of the car were removed and inventoried and notice was given to the Plaintiff to recover his personal property. 19. Admitted. 20. Denied. On the contrary, it is averred that the recovery of the vehicle was in accordance with the written agree- ment made between the parties, and is in conformance with existing law and generally accepted business practice. Title to the vehicle at all times remained in the Defendant, ENGLAND LEASING, -7- _/~"' • • COMMONWEALTH OF PENNSYLVANIA ) ss: COUNTY OF DAUPHIN ) Personally appeared before me, a Notary Public in and for said Commonwealth and County, MARGUERITE I. GUTTSHALL, who, being duly sworn according to law, deposes and says that she is Secretary-Treasurer of ENGLAND MOTORS, INC., and as such is authorized to make this Affidavit on its behalf and that the facts set forth in the foregoing Answer are true and correct to the best of her information, knowledge and belief. ~~ a < < c < < ~~ /, Marguerite I~tts'~TT~-' SWORN to and subscribed i~, before me this ~~ day of ~~1~~~_A.D., 1976. i ~~ l `~~ ,~ ~~, ,, ~,,,, ,;_~, ;~. ~9 h",v „~,~,~~riin County Hey;,,,, __, 1. 1 i .~ ~ COMMONWEALTH OF PENNSYLVANIA ) ss: COUNTY OF DAUPHIN ) Personally appeared before me, a Notary Public in and for said Commonwealth and County, MARGUERITE i. GUTTSHALL, who, being duly sworn according to law, deposes and says that she is Secretary-Treasurer of ENGLAND LEASING, INC., and as such is authorized to make this Affidavit on its behalf and that all the facts set forth in the foregoing Answer are true and correct to the best of her information, knowledge and belief. rguerite I. Gutts a SWORN to and subscribed ;1.• before me this ~~'~ day of ~y\~~ A.D., 1976. r~~ A,~„ , ~s~:p_- r ~ yusp 4, 1979 i~hy o- Han~is'ourg,~'a. CauPi~in County ~, \~ ~~~~~ .' ~~~ ,~~~ ~~ ~~ ~, • W100, INC., Plaintiff vs. ENGLAND MOTORS, INC. and ENGLAND LEASING, INC., Defendants • IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA N 0. /T-r-7~~ C I V I L TERM, 19 7 6 REPLEVIN AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA ) ss: COUNTY OF DAUPHIN ) Personally appeared before me, a Notary Public in and for said Commonwealth and County, MILTON BERNSTEIN, ESQUIRE, who, being duly sworn according to law, deposes and says that he did serve a copy of the Answer filed in the above-captioned matter upon William M. Gross, Esquire, Attorney for Plaintiff, W100, INC., by placing a copy of the same in the United States Mail, postage prepaid, on May 12, 1976. r` ~ ton Bernstein, Esquire SWORN to and subscribed before me thi s i.T~`'' day of ~~'~_~;~_A.D., 1976. ~~ ~., \`._l\_..~\.~. ~ ~-~-~cS."rte r~ '~ -- s ,,~~si 4, 1S'79 ~L` ~ ~~~ ~~. ~~ \~~~ ~~~ • wloo, INC. - VS. - ENGLAND MOTORS, INC. AND ENGLAND LEASING, INC. ORDER OF COURT LJ IN THE COURT OF COP~IMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW 1178 CIVIL TERM, 1976 AND NOTr1, May 19, 1976, at 10:10 a.m., it is ordered and directed that trial on the above matter be held at 10:00 a.m., June 17, 1976, in Court Room P;o. 2, Court House, Carlisle, Pennsylvania. By the Court, ~.µ, J. William M. Gross , Esquire •- ~?' ~--~-'?-~~-- ~"°~ ,s~o2j/7l° Milton Bernstein, Esquire - ~~~-~-~~ ~~~~`~-~ ~~°~"~/~d nle <_ t~' WILLIAM M. GROSS DONALD F KRANK EDGAR R. GASPER • LAW ^FFIC ES KRANK, GRDSS & GASPER SUITE H 1001 NORTH FRONT STREET I"IARRISBURG, PENNSYLVANIA 17102 717-234-4931 May 13, 1976 The Honorable Clinton R. Weidner Court of Common Pleas Cumberland County Courthouse Carlisle, Pennsylvania LANCASTER ^FFICE SUITE 33B PARK CLTY CENTER LANCASTE R, PA.176D1 717-299-7327 RT'.: Tr7I00, Inc . vs .England Motors . Inc. anal England Leasing,-Inc. No. 1178 Civil Term, 1y76 Dear Judge Weidner: You will recall that on April 19, 1976, a hearing was held before you on our request for the isGuance of a writ of seizure. At the cor_- clusion of the hearing, our request was granted. Subsequently we filed a bond, but the Defendants then filed a counter- bond. The pleadings now have been concluded and the matter is ready for a full hearing, at which time I intend to reQUest that the transcript of testimony from the first hearing be admitted into evidence. If it is now proper to make application to you for the scheduling of the full l;.e.aring, could this letter be treated as such areauest? If not, would you kindly advise me what procedure should be followed to have this matter brought to a final hearing as quickly as possible. Very truly yours, ~--~ William M. Gross W^7G : dfb CC: Milton Bernstein, Esquire r r` ~, ' / M • IN THE COU?2T OF COrM!!ON PLEAS OF CU"~`BET2LP.ND COUi1TY, PE;'vNSYL~?A2TIA CIVIL ACTION - LAFa' i~1IOO , INC . vs ENGLAND MOmORS, In'C. 1178 Civil 197 . Ir1 ".E~'LE''I'J Hearing held on ^2onday, April 19, 1976, before HO?JO.2ABLE CLINTON R. T,lEIDNER, Judge, Carlisle, Pennsylvania, in Court ?~OOI:'t No. 2 APPEARANCES: ^7illiaM M. Gross, Esquire 1301 North Front Street Harrisburg, Pennsylvania 17102 For the Plaintiff r~ilton Bernstein, Esquire 405 North Second Street Harrisburg, Pennsylvania ~'or the Defendant Reported by Catherine E. Krout Official Court Stenogratiher i I N D E X AS TO TnTITNESSES FOR THE PLAINTIFF: Harold Swidler Evelyn Trimmer FOR THE DEFENDANT: Roger England D C RD RC 1 18 25 26 31 35 35 • • Harold Swidler - Direct (Court convened at 11:40 a.m.) r~R. GROSS: If the court please, this is a replevin proceeding in which we requested a carit of seizure be issued in this matter. Notice of this hearing wa.s given to the firm with which P7r. Bernstein is associated on the 13th. TVe would like to call as our first witness Harold Swidler. H A R D L D S ?V I D L E R, a witness on behalf of the plaintiff, called as a witness, being first duly s~r~orn according to law, testified as follows: DI R.ECT EXAT![INATION BY "'!R. GROSS: Q. State your full name, ?lease. A. Harold Scaidler. Q. Your address? A. 845 Hamilton Street, Carlisle. Q. T7hat is your connection with WI00, Inc.? ?~. President of ial00. Q. And , that' s a corporation, rn7lOn? A. Correct. Q. What is its principal business? A. Radio station operated in Carlisle, Pennsylvania. Q. That' s radio station ,VI00. Is that right? A. Yes . -1- • Harold_Swidler - Direct Q. What is the street address of that station? A. 180 York Road. Q. And, are you also i.n charge of the operation of_ that radio station? A. Yes, I am. Q. Now, this proceeding concerns a 1974 Javelin auto- mobile? A. Yes . 0. It's an American .Motors vehicle? A. Yes . Q. How did you acquire in any way that vehicle? How was that vehicle first acquired by you? A. This vehicle was acquired in a trade agreement be- tween England 7'~totors and ?aIOO. 0. What do you mean by that? A. That we would be advertising for them over a period of twenty-four months for so much money. Q, And, what you were going to receive was this vehicle. Is that it? A. That's correct. Q. And, when were ~rou supposed to receive the vehicle? A. L7hen? From our starting to advertise. Q. And, this was around the beginning of January of 1974? A. That's right. -~- r_ • Harold Swidler - Direct 0. And, what were you supposed to pay for this vehicle? A. The total amount was $5000 and some dollars plus $1900. BY THE COURT: Q. What was it? A. Five thousand and I can't figures are . it's a little over five thousand plus $1900. BY MR. GROSS: 0. And, would the amount have been $5520.48? A. Seems like that's correct, plus $1900. ^~iR. BERNSTEIN : ?That was that again? MR. GROSS: Five thousand and - - - BY MR. GROSS Q. Plus how much? A. Plus $1900. Q. And, how was that amount to be ?paid? A. That amount was to be paid in advertising. Q. Nora, was that just the $5520.48 or the entire $7420.48? A. The entire $7420.48. 0. And, who determined how much advertising was to be given to England .Motors? A. At the very beginning, it was agreed between Harold England, who was the general manager at that time for Eng- land Motors, and later on it was further agreed with Mr. Dave Fink, who took over after Harold had left, it was -3- • • Harold Swidler - Direct determined to advertise for approximately $200.Q0 and some dollars per month. Q. Now, who controlled the advertising, what was said and the copy and so forth? A. It was controlled by England Motors. 0. And, did you only advertise in accordance with their directions? A. Yes. I would stop there every week or everv other week and they would give me the information, what to ad- vertise, and I would do so accordingly. Q. Did you bill them for the advertising? A. Yes, we did. Each month. Q. And, did the bills that you sent them total all of your charges for the advertising? A. That's right. 0. Now, did you ever request that any of those bills be paid in cash? A. No. It was not agreed on. 0. Why not? A. It was mutually agreed upon trade. Q. In other words, you sent them bills to show what? A. Our cash to them was radio time. Q. And, their pavment to you was the automobile? A. That's correct. It was never any cash transaction. Q. Now, at the time you entered into the original agreement, were you requested by England Motors to sign any -4- t., .. • Harold S~aidler - Direct kind of written document? A. Just a lease. Q. I show you what has been identified as Plaintiff's Exhibit No. 1. Is that the lease that you were asked to sign? A. Yes . Q. Is that - - - MR. GROSS: Your Honor, that's a photocopy of the original which I have and can make available if the court wants it. THE COURT: Do you agree that a photocopy be used in lieu of the original? MR. BERNSTEIN: I'm sorry, Your Honor. What? MR. GROSS: That we could use a photocopy for the pur- pose of this hearing, NIR. BERNSTEIN: For the purpose of this hearing, yes, I agree. BY 'SIR. GROSS 0. Now, the lease agreement purports to be with England Leasing, Inc. To your knowledge, did you ever receive any bills from England Leasing, Inc.? A. N o . 0. Did you ever make any payments to England Leasing, Inc. ? -5- a. , ; r, , Harold Swidler - Direct A. Never whatsoever. Q. Well, the agreement calls for the lease agreement calls for a payment of $230.02 per month. A. That was returned in advertising time. n'!R. BE RNSTEIN: I didn't catch that answer. A'IR. S~n1IDLER: Returned in advertising time. BY MR. GROSS: Q. And, what happened if you wouldn't provide Eng- land Motors with $230 worth of advertising for anv one month? Would they get credit for the actual advertising you performed or what? A. They only got credit for what we performed. Q. And, would that be true whether the amount was less or more than the amount shown in the lease? A. That's right. Q. The statements you referred to as being sent to them each month stated the advertising time? A. Each month we would send them a statement indicating the amount of advertising used by them. Q. And, did you also in some instances send them paid bills for the monthly advertising? A. Yes. In fact, almost every month we would give them the times when the advertisements would have run and also notarized statements of the same amount. Q. And, do you know why they needed that? -6- ~. i .. ~ ~ Harold Swidler - Direct A. In many cases, they would get co-op from American ?`![otors. American Motors would pay part of the bill. Q. In other words, they would show American n!rotors the paid advertising for the month, then they would be re- imbursed for part of that? A. Right. And, we would also be sending the copy of the script that was run. 0. Now, did England Motors ever object to the adver- tising charges you were making each month? A. Never. Q, Did you ever receive any kind of a bill or invoice for an_y payment due on the vehicle? A• Never. Q. I show you what has been identified as Plaintiff's Exhibit No. 2. I believe this was also attached to the Complaint. Is that a photocopy of your statement of account? A. That's right. Again, Mr. Swidler - - - MR. GROSS: Again, Mr. Bernstein, I have the original copy of our statement of account. I would like to use the photocopy. MR. BERNSTEIN: Perfectly all right. BY MR. GROSS: Q. Now, the statement of account with England P7otors shows a balance as of n4arch lst of $1112.49. would that -7- _,; ~ ~ Harold Swidler - Direct be the amount that they would owe in advertising ser- vices as of that point? A. This is the amount left over between the $1900 and - - - Q. No. Let me ask you the question again. I want you to look at this statement of account. This has the $5520.48 charged up but it does not yet have the $1900 charged? A. Right. Q, So, this would show what? P~hat would that balance be? A. $1112.49. Q. And, that would be the amount of advertising that England motors would owe you for as of that date? A. That is, yes. THE COURT: May I see that, please? MR. BERNSTEIN : t~lhere are tae? MR. GROSS: That's $1112.49. THE COURT: The one attached to the Complaint is di.f- ferent from that one. r'1~~. GROSS : I don't believe it is , Your Honor. THE COURT: Oh, here tae are. Three pages. Right? BY MR. GROSS Q. As a matter of fact, since that was included as of the time of the last entry, there is an additional $244 to -8- r ;, i • Harold Swidler - Direct be charged for the amont of April? A. That's correct. Q. So that WIOO would be entitled to a credit of $1356.49? A. That's right. Q. Against which you would agree that under the terms under which you originally bought the vehicle, England Motors would be entitled to $1900 of advertising services? A. That's right. 0. Now, you have sent them statements each month show- ing those balances? A. That's correct. Q. Have you ever received a bill from them for the $1900.00? A. Never. Q. And, you wouldn't expect to, would you? A. No . 0. Why not? A. It was mutually understood that it would be in ad- vertising trade. 0. Did you ever do anything like this with England Mo- tors before? A. Yes. We had a similar agreement for the car previ- ous to that, the balance that was left of $1600, and we used the option in the same thing, that we traded out in adver- tising, identically the same deal as this. -9- '` Harold Swidler - Direct Q. I show you a lease agreement identified as Plain- tiff's Exhibit No. 3 and ask you whether that was the pre- vious lease agreement to which you have just referred? A. Yes. That was the previous lease agreement. Q. And, was that also part of an understanding that it was part of a trade agreement between you and England Motors wherein they were trading to you a car and you were trading to them advertising services? A. That's correct. 0. I wnat you to look at Plaintiff's Exhibit No. 2 again. Does that show, in Plaintiff's Exhibit No. 2, the entries on November 1st, 1973 of $5335.20, and on January 4th, 1974 of $1600.00 on account of the trade of the pre- vious automobile? A. That's right. Q. ^4r. Swidler, one thing I haven't been able to recon- cile, and I don't know if you can. The original tease agree- ment shown as Plaintiff's Exhibit No. 3, indicates an option purchase price of $1500? A. That's right. Q. And, your account shows that you gave them an extra $100 in advertising services of $1600. Do you know ~ehy that was $1600? A. No. ~Ia_ybe my bookkeeper could tell you. -10- • . Harold Swidler - Direct MR. BE RNSTEIN: I can't hear the response. MR. GROSS: He said he doesn't know. He said maybe his bookkeeper can tell. BY MR. GROSS: Q. There appears to be an extra $100 of advertising paid than what was required under the agreement. Now, before those two lease agreement transactions were entered into, did you have any other trades with England motors for vehicles? A. Yes. We have several other trades. Maybe three or four other trades. 0. In those cases, were they done in exactly the same manner, with a written lease agreement? A. No. Not quite, just in the regular agreement. ~. Now, just in these two cases there was this lease agreement. Who prepared that lease agreement? A. Mr. Harold England. Harold England was the manager of England Motors. ¢ And, he was the person with which youu dealt all the time? A. That's right. Q. Did you discuss with him the terms of the agreement or did you just execute it? A. No. We discussed it. Q. And, you knew that the requiremen~ seas that you were going to give them the advertising services about which -11- Harold Swidler - Direct you testified? A. That's right. Q. Now, according to this statement of account, about when was the $5520.49 paid in advertising services? Can you tell where does it change from a credit entry to a debit entry in your account? rnlould that be in October? A. It would be. Q. I think the document shows that in the month of October, the advertising services - - - MR. BERNSTEIN: Your Honor, I think I would object to that. THE COURT: Sustain the objection. MR. GROSS: Okav. BY PAR. GROSS Q. All right, Mr. Swidler, at any time before October of 1975, did you ever have any further discussions or anv discussions at all with anyone at England Motors about the exercise of the option agreement? A. N o . 0. In October of 1975 or thereafter at any time, did this question ever come up with anybody from England ?Motors? A. Never. Q. Well, didn't it come up recently? A. In the past couple of weeks. Q. But, with whom did it come up? -12- • Harold Swidler - Direct A. With, I believe, this gentleman, Roger England. 0. And, that has been only in the past few weeks? A. That's the only time I've met the gentleman. That's the only time this question was brought up. Q. Now, before he brought that question up, did he bring it up with you or did you bring it up with him? A. He brought it up with me. Q. Before he brought it up with you you said in .March of this year? A. Right. Q. Your testimony is that nobody from England Motors contacted you about the option agreement? A. No one . Q. And, you continued to use the vehicle? A. That' s right . Q. And, were you under the impression that this was your vehicle or England Motors' vehicle? Q. That it's my vehicle. 0. Now, how did the question come up between M_r. Roger England and yourself? A. A couple of weeks ago, I received a telephone call and he asked me to stop b_y. And, I stopped by and he said he wants the car; very simple, like that. So, I showed him that I've been exercising the option, that I only owe on the car approximately $500, that we had paid around $1300 -13- • • • • Harold Swidler - Direct and some of the $1900 and I was prepared to pay him. And, he said no, he doesn't want the money, he wants the car. And, that was the only time and the first time that any- thing was discussed. Q. In other words, at that point, youu agreed, if he wanted to, to give him the difference between the $1900 and whatever was paid then, $500 and some odd dol7~'s, and you agreed to give that to him in cash? A. Right . Q. In other words, if he didn't want to use your ad- vertising services any more, you would pay in cash? A. Right . Q. What did he say about that? A. He started to get in an argument with me and our re- lationship for the past nine years was more than excellent and I didn't want any misunderstanding and, so, I said, "According to our agreement., I owe you $500, the difference between $1900, which I am prepared to pay you." He said, "No. We want the car." In fact, he said, "Did you bring the car?" And, I left the office. 0. Now, can you tell us about when that conversation took place? A. Not exactly. ABout two or three weeks ago. Q. Okay. In your Complaint you allege that the vehicle was taken from you on March 27th. Would it have been several days before that? -14- • • Harold Swidler - Direct A. Correct. Q. Now, except for the agreement between yourself and England ~4otors, which I suppose included the Plain- tiff's Exhibit 1, this lease agreement, have you ever entered into any kind of lease agreement with England Motors for that vehicle? A. No . Q. Have you ever entered into any other kind o_f agree- ment which would have given you the right to possession of the car other than what you have talked about? A. No . Q. Again, with the agreement of opposing counsel, I show you a photocopy marked Plaintiff's Exhibit No. 4, an address and registration card pertaining to this ve- hicle. This is an envelope addressed to TrTI00, postmarked Parch 25th. Is that photocopies of documents received by you? A. That's right. Q. So, some time after Parch 25, 1976, you received a new 1976 registration card for this vehicle? A. ~es . Q. Made out in the name of England Leasing, Inc, but sent to ~r~7I00. Is that right? A. Yes. That's right. Q. Now, Pr. Swidler, where was this car parked on March 27th, 1976? -15- • Harold Swidler - Direct A. The car was parked at 845 Hamilton Street, my residence, in the driveway. 0. And, is that in the Borough of Carlisle? A. Yes . 0. Cumberland County? A. Yes . Q. And, what happened to the vehicle? A. One evening, my boy looked out of the window - - - Q. Not one evening. I'm talking about T~[arch 27th. A. Right. On that date, he realized that the car was drifting back down the hill. So, we went out and there was no lights in the car and I was wondering what was going on. As I went out - - - BY THE COURT: Q. Just tell us what happened to the car. A. Somebody took the car. BY MR. GROSS: Q. Someone took the car? A. Right. Q. [without any authorization from you? A. That's right. p. And, did you, some days later, get a letter from England Motors indicating that it was England !Motors that had the car? A. Yes . -16- Harold Swidler - Direct 0. And, in fact, subsequently, did you not receive from England Motors or one of its representatives, some of the personal property that was in your car at the time? A. Yes. 0. Is WIOO prepared at this time to furnish the addi- tional advertising services, the difference between the $1900 and the $1356? A. Yes . Q. I believe the actual difference would be $543.51. You are prepared to furnish that in advertising services? A. Yes, I am. Q. For England Motors, if they would desire? A. Yes . Q. The testimony in this case indicates advertising services conducted. through ?March. Would there be any ad- vertising services performed in April? Do you know? A. N o . Q. So, the advertising has stopped as of the time they took the car. Is that right? A. That's right. 0. In the alternative, if England Motors would indicate that it does not desire to continue advertising with your radio station, are you prepared to pay England Motors 0543.51 in cash? A. Yes, I am. Q. Mr. Swidler, what is the approximate value of that -17- i ~ Harold Swidler - Direct Cross vehicle? A. I would say approximately $4000. 1`~R. GROSS : Your witness . CROSS EXAMINATION BY MR. BERNSTEIN: Q. Mr. Swidler, you had stated in your testimony that the advertising was to be paid for on the bates of the monthly rental., you said $200 and some dollars. Is that correct? A. That we would advertise for $200 and some dollars? 0. Yes . A. Yes . Q. And, you said that an agreement was made between you and Harold England to provide advertising as a trade- off for the rental of the car. Is that correct? A. According to the lease, yes. Q. According to the lease? A. Yes . 0. If we assume that the lease, as it stands, is, as you stated in your testimony, $217, $230.02, the days, that would multiply out to $5520.48. How do you account for the statement you made that payments were to include the $1900? A. Okay. Over a period of time, they would have new car showings or one time they had promotions and other dif- -18- F • Harold 8widler - Cross ferent advertisements, therefore, the schedule would be heavier. They would ask me to advertise more than what it called for and this how it - - - Q. Are you telling me that the agreement then was not just for the amount of the lease rental, but it was some other figure discussed? A. As much advertising as they desired, that would be deducted from the .lease, even though the lease stated that I should be giving them $200 and whatever amount, but i.f they had special promotions, we would advertise more than the normal amount, therefore, this is how it worked. Q. You stated that you sent paid and notarized bills to England Motors for the advertising that you provided. Do you recall what the amounts of those bills were? A. Personally, myself, no. I believe my bookkeeper can . Q. This agreement to provide advertising was with Eng- land Motors. Were you aware of the fact that the lease you signed was with England Leasing Company? Did you think of them as a separate company? A. My dealing was strictly with England Motors. We have always had a friendly, excellent relationship for the past nine years and I didn't see any reason to be different. Q. But, you signed the lease with England Leasing? A. Right . -19- • Harold Swidler - Cross Q. You had mentioned in your testim~ that there was a prior arrangement that you had prior to this arrange- ment. That started in January of 1974? A. Yes . 0. [nThen there was a car involved and traded. i~Jhat was the term on that car? A. Identically the same terms as this. 0. The Plaintiff's Exhibit on this statement of account reflected that 05335.20 as the trade-in car and then it reflects a retail delivery price of an Ambassador of $1600 and it shows a cash account balance due of $214.22 - - - DZR. BERNSTEIN: Does he have those there? MR. GROSS: The bookkeeper can explain that. BY MR. BERNSTEIN: Q. There was an attempt to explain it and I didn't understand and the court might not have understood it either because the figures don't talley. But, let me keep the one single point at the moment, that that transaction occurred at the end of a lease period. Is that correct? A. I'm not quite following. Q. Did this trade-in and this change to a new vehicle occur at the end of a lease period? In other words, did it occur as the result o.f an option similar to the one you had? A. Similar, yes. Q. And, did it occur because of some action you took? -20- ~ ~ Harold Swidler - Cross A. No. Q. In other words, England Motors just - - - A. We continued to advertise for them. Q. I'm trying to find out how you got that car. How did you determine you wanted another car January 1st, 1974? A. [then we were finished advertising, the balance of the total advertising was covered, they wanted to ad- vertise again with us. As I mentioned previously, they've been advertising for approximately nine years. So, we went into a similar deal again. Q. In other words, it wasn't that you wanted a new car, it was that they wanted to continue advertising? A. A mutual understanding. Q. But, at the time you took the new car, you were still in the terms of a lease agreement which would have expired December 31, 1973? This previous lease that you mentioned in your testimony was signed on the 20th of December, 1971, the payment schedule that you're re- flecting shows the trade-in of~ car occurred on Octo- ber 1, which would. 'nave been during the term of a lease, and I'm just trying to understand., is that what happened? Did you take an option to get a new car during the term of the previous lease? A. Possibly. Probably my bookkeeper could tell you. THE COURT: The question is what happened here. I'm not too concerned with the prior where they accepted ad- vertising after the option should have been exercised. -21- • • Harold Swidler - Cross BY MR. BERNSTEIN: Q. Mr. Swidler - - - MR. BERNSTEIN: We're going to get into that ques- tion in our case, Your Honor. I agree with you on that and. I think the essential task here is to deal with the current lease. BY MR. BERNSTEIN: Q. Mr. Swidler, you said you got these authorizations by visiting American Motors? A. By visiting England Motors, yes. Q. Who did you see there? A- When Harold England was in charge of England Mo- tors, I would see Harold., and when he transferred to West Shore, T would. get the advertising from Mr. Dave Fink. Q. And, when was the last time you saw him in terms of getting an authorization for advertising? A. I can't several times I stopped by and. he would give the authorization to his assistant or car sales manager. BY THE COURT: Q. When was this? A. I can't really recall. BY MR. BERNSTEIN: Q. Was it October? Earlier than that? A. Usually, I wo uld stop by every week or every other week. Sometimes I would miss maybe one week. Then, I would check with Joe Sanders, who I think is the general manager now, and he would say, "Continue running on Pacer -22- `~ ! • Harold Swidler - Cross Air Conditioning." He would authorize it and. say, '°Use the same commercial again." Q. Your lease expired the beginning of the year. Did you see England Motors in December for authorization? A. I saw them every week. I saw them in December. I used to see them every week or every other week. Q. Through December? A. Through every month. Q. You testified. that when you and Mr. England., Roger England, had this conversation in March, that he said he wanted the car. Isn't it a fact that he offered you the option for $1900? A. He didn't mention anything. I came in, and, in fact, that was the first time I met Mr. Roger England and he was very different and unusual. We always had. an even relationship and all he indicated was he wants the car. Q. He didn't offer you any option? A. He did not. I told him what I owed on the car, I would be happy to pay. Q. You were not willing t o pay $1000, however Were you willing to pay $1900? A. I was willing to pay the difference, what we owed them. MR. BERNSTEIN: I'm sorry, Your Honor. I have to ask the question again. BY MR. BERNSTEIN: Q. Mr. Swidler, were you willing to pay $1900? -23- • Harold Swidler - Cross A. I was willing tc~ pay the difference, ~'at we owed. Q. All right. Thank you. Mr. Swidler, does VdIOO own any cars? Any vehicles? A. Possibly a Jeep. Q. The company owns a Jeep? A. I'm not sure whether it's in my name or the radio stations name. Q. Do you own any cars? A. Do I own any cars? Yes. Q. How many automobiles do you own personally? A. That I use? BY THE COURT: Q. No. That you own. A. Several. Actually, one that I use that my wife uses, not myself. BY MR. BERNSTEIN: Q. Then you had the meeting with Mr. Roger England in March, did you understand Mr. England's position to be that if you were not willing to pay the $1900, he was going to pick up the car? A. No. Q. Did he ask you whether you had the car there at the time? A. He said, "Did you bring the car?". Q. You responded what? A. That I did not. 4• Did he ask or did you infer that he may want the car? -24- • Harold Swidler - Cross Redirect A. He indicated that he wanted the car. Q. And, what did you say? A. I said that the car is that I owe approxi- m ately the difference between the $1800 and $1200, what- ever, $1300. I was prepared to pay him the amount different between that if he did. not want to continue using advertising with us. Q. One final question. You stated that there was no advertising provided in April. This was after you met with Mr. Roger England and I assume you realized there was no reason for the advertising? A. A misunderstanding. Q. All right. Now, the question was asked by your counsel whether you were prepared to furnish additional advertising services but you said in your earlier testi- mony that those advertising services would normally have been paid for the lease of a vehicle. Is it correct you understood the payments to be for the lease of a vehicle? A. I'm prepared to furnish additional advertising for England Motors. MR. BERNSTEIN: I have no further questions at this time. REDIRECT EXAMINATION BY MR. GROSS: Q. Who was using this particular vehicle, Mr. Swid- ler? A. I do. Q. You were using it personally? -25- Harold Swidler - Redirect Evelyn Trimmer - Direct A. Yes. Q. In connection with your work at the radio sta- tion? A. That's right. Q. Is that where you spend most of your time? A. At the radio station, yes. Q. And, when the car was taken, what effect did this have on you? A. I didn't have a vehicle to use. MR. GROSS: That's all. Thank you. THE COURT: You may step down. We'll take a recess. (Court recessed at 2:52 p.m.) (Court reconvened at 3:00 p.m.) ~r ~ E V E L Y N T R I M M E R, a witness on behalf of the plaintiff, called. as a witness, being first duly sworn according to law, testified as follows; DIRECT EXAMINATION BY MR. GROSS: Q. State your full name, please. A. Evelyn Trimmer. Q. And., your address? A. Post Office Box 93, Carlisle. Q. By whom are you employed? A. WIOO, Inc. Q. In what capacity? A. As office manager. Q. Are you responsible for the keeping of the books among your other duties? -26- • . Evel~rn Trimmer - Direct A. Yes. Q. And., do you also have responsibilities for the maintenance of the records as far as advertising is con- cerned? A. Yes, I do. Q. I show you first Plaintiff's Exhibit No. 2. Do you recognize that? A. Yes, I do. Q. Is that a true and accurate copy of your state ment of account as it deals with England Motors? A. Yes, it is. Q. And., the balance shown on there as of March 1st of $1112.49, is that accurate? A. Yes, it is. Q. You have heard the testimony here about the vehi- cle. Did you know anything about the vehicle and the arrangements under which it was being obtained. from Eng- land Motors? A. Yes. Q. The statement of account shows a number of debits and credits. Was the original $5520 item reflected on that statement of account? A. Yes, it is. Q. How about the $1900 item? A. No. The $1900 is not on here. Q. If the $1900 item were added to that account, what effect would that ham on the account? A. If I put the $1900 option price on the account, it -27- ( ~' • • Evelyn Trimmer - Direct would show that we owe to England. Motors in adver- tising a balance of $500 and some odd dollars. Q. That is also taking into account a $244 charge for March. Is that right? A. Yes, it is. Q. That particular charge is not reflected on the account? A. No. Q. But, that was the charge, was it not, for March? A. Right. Q. And, are you responsible for sending out to ad- vertisers certain items? A. Yes, I am. Q. What sort of items do you send out? A. To England Motors in particular, I send them a statement of account which is from a photostat of a running account ledger card. They have requested a cooperative ad- vertising statement, which they get. It is notarized each month and they get the affidavit. Q. You've mentioned. three items. One is the state- ment of account, which is Plaintiff' s Exhibit 2? A. Right. Q. And, when you say they get that each month, they would get photocopies of that as it existed as of that time. Right? A. That's right. Q. And, when you say your statement of the advertis- ing run-down that last month, what would that show? A. I don't understand. -28- • • Evelyn Trimmer - Dir ect Q. What informatin would be given England Motors on the statement, the monthly statement sent to them of ad- vertising time the previous month? A. Okay. It would show the amount that actually ran during the previous month and a credit or a debit balance, whichever the case would be. It gave them an exact balance of the account. Q. You're talking about the statement of account? A. Right. Q. I'm talking about the monthly bill that you would send. A. Well, this is considered a monthly bill. Q. You said you sent ~a other things. A. Right. Q. Tell me again what they are? A. A notorized statement for the same thing on this account. Q. The notarized statement. And, you sent a third. thing ? A. An affidavit with the times. Q. The notarized statement, the final statement of account doesn't show all the running balances? A. No. Q. It just shows the amount of the balances each month? A. And, who it would be cooperative advertising for. Q. And., who was designated on the various notarized statements you sent? -2 9- • • Evelyn Trimmer - Direct A. American Motors. in there for the people. Occasionally it was a few Q. Do you have all the records here with copies of those statements? A. Yes, I do. Q. In fact, you have it running way back beyond the tine of this particular agreement? A. That's right. Q. Is that for each month? THE COURT: Let's not repeat it. You've been over it once. BY MR. GROSS: Q. You sent a notarized statement and a notarized affidavit of the times. Did that go out each month to them? A. Yes, it did. Q. And, did that d1 ow specifically what times each one of the advertisements were made? A. Correct. Q. So, when the statement of accn.nt shows 61 like it does for the month of February, the last entry on Exhibit 2, what does that 61 refer to? A. They ran 61 commercials and 61 commercials would be reflected on the affidavit. Q. Did it show the specific times when the 61 com- mercials were run? A. Yes. Q. Now, during all of this time, did. you ever receive from England Motors or England Leasing any correspondence or telephone calls or any communications at all objecting to any of the charges made? -30- ~ ~ Evelyn Trimmer - Direct Cross A. No, I didn't. 0. Did you ever who do you receive the mail at TaIOO? A. Yes, I do. ~. Do you open it? A. Yes , I do . ~. Did you ever receive a statement from England A4otors or England Leasing requesting any payments on account of this vehicle? A. No . No payments in cash_ . 0. Did you ever receive an~~ statement or communication relative to any $1900 balance? _A,. N o . p. Did you ever see any request for an exercise of an option? A. N o . Q. One last thing. The monthly statement showing the number of spots that was run a.nd the amount, was that marked paid by you ~~~hen it was sent to England Motors? A. The notarized copy was marked maid. It has to be in order _f or them to be reimbursed by American motors for cooperative advertising. MR. GROSS: That's all I have. CROSS EXAMINATION BY MR. BERNSTEIN: -31- • Evelyn Trimmer - Cross Q. Were you aware of the lease that we're speaking of here with England Leasing? A. Yes . Q. How long have you been office manager at WIOO? A. It will be ten years next month. 0. So that this lease came into your possession as a normal function of your office managership? A. Yes , Q. You are aware, are you, that these bills that you were discussing were mailed to England Motors? Was there any effort at all at any time to notify England Leasing Company of any of these transactions? A. It went to England A2otors, Mr. Harold England in particular, and he's the person that was in charge of the agreement anyway, the lease agreement. Q. And, you were not aware of Mr. England's leaving and his place being taken by anybody else? A. They would normally go do~~m to Mr. Fink. I knew after he had gone that he did leave, but the statements went to the person in charge. Q. You had said that these statements did not reflect any posting of the $1900 amount? A. N o . Q. If that was intended to be a part of the lease, wouldn't that have been ?posted? -32- • Evelyn Trimmer - Cross A. No. Not in this case, not until we brought up a balance of $1900 that England Motors owed us, then we would take the $1900 option. Q. You were not aware of any authorizations first hand either way, were vou? A. What kind of_ authorizations? Q. The billings that you provided were automatic functions coming from another department of the station, or was that your function? A. That's my function. 0. Did you ever see any authorizations in writing from England Motors? A. No. Not to run so much advertising. Q. So, how did you determine that there was authoriza- tion? I'm trying to find out how this could have been authorized, how you would have been authorized to place these figures on your books. A. Mr. Swidler visited the office of England motors and he would tell me to continue running the advertising as they had the previous month. Q. Do you recall what might have occurred from October through December, 1975, in terms of those authorizations? A. October through December? It just stayed the same with the exception of October. Q. The billings for the previous six months pre- vious eight months, what were those amounts or do those -33- Evelyn Trimmer - Cross amounts show on the statement that you have? A. The exact amounts for each month ran $244, with the exception of October and - - - Q. And, in October, what was it? A. In October, it was $224. 0. Less than $244? A. Yes . Q. $224 would amortize on a 24 month basis at what amount? Do you know? A. I don't have a paper and pencil or a calculator. Q. All right. Let me tell you. THE COURT: It wouldn't be $7.40. Tnle all know that. MR. BERNSTEIN: And, it wouldn't be $7000. It would be $5300. BY n4R. BERNSTEIN; Q. The previous testimony established that there were higher amounts occasionally for less billings. Glancing at a statement, when was this amount exceeded by this $244? THE COURT: F7hy don't you ask the witness who said that? You're asking her to impeach him. MR. BERNSTEIN: You're right, Your Honor, and I stand corrected. I had a problem with understanding this ques- tion and I thought we were going to ask the bookkeeper these questions. BY MR. BERNSTEIN Q. Does the statement reflect a figure of greater than $244 any particular month? -34- Evelyn Trimmer - Cross Redirect A. Yes, it does. Q. At what point does that occur? A. September o.f_ 1974. MR. BERNSTEIN: Thank you. I have no further ques- tions, Your Honor. THE COURT: You may step down. MR. GROSS: Just one moment. REDIRECT EXAMINATION BY MR. GROSS: Q. I call your attention to March of 1974. Is that also more than $244? THE COURT: Don't go over it that way. I stopped him on it and now you're going to bring it up again and that will speak for itself. If you want to argue the amounts, you can. MR. GROSS: Thank you. I have no other testimony, Your Honor. MR. BERNSTEIN: Your Honor, I would move on the basis that the action is one to prove that possession is a right of the plaintiff in this case, that the plaintiff has failed to prove its case and I would move for a dismissal of this action at this time. THE COURT: Overruled. MR. BERNSTEIN: I wish to call r'r_r. Roger England to the stand. R O G E R E N G L A N D, a witness on behalf of the defendant, -35- • Roger England - Direct called as a witness, being first duly sworn accord- ing to la~.a, testified as follows: DIRECT EXAMINATION BY MR. BERNSTETN: Q. Would you state your full name, please? A. Roger George England. Q. And, what is your address, Mr. England? A. 265 Deerfield Road, Camp Hill. 0. Mr. England, what is your position with England Leasing Company? A. I'm just an officer of the company, general sales manager, new and used vehicles and an officer of the leas- ing company. 0. [chat position? What title? A. General manager of_ the leasing company. 0, Mr. England, when did you take your present posi- tion? A. January the 25th 26th. 0. Of 1976? A. Right. Q. When were youu first made aware of the lease that is in question here? A. I first became aware of the lease when the bank called me to get the pay-off on the automobile. Q. What month was that? A. They called me, it was around it was the day -36- • • Roger England - Direct before I called r!Ir. Swidler. I can't recall the exact date. Q. January, February or March? A. Well, it would have been in March when Mr. Swidler and I had our conversation. Q. What was the purpose of the bank's calling you? A. Well, we had not made any leasing payment since the end of the lease as our lease at England Leasing termi- nated on Januarv 1st. So, at that time, we had stopped making payments on the vehicle just automatically. The bank, of course, wanted the pay-off, so, they called. I got hold of Mr. Swidler and asked him to come in and make arrangements to pay. The only thing I knew was my leasing agreement. I had no knowledge of any oral agreement of any kind. When Mr. Swidler arrived at my office, it took me two days to get hold of him and get him in. He, of course, the first thing said, "You dont' understand any- thing about the lease, so, here's where tae stand. Here's my bill, here's $500. I want the car." And, I said, "I only have a piece of paper here. That's a lease agreement due January 1st, $1900 or the car." He said, "You can't have the car." He said, "You don't understand any of this." He said, "I'm going to see my attorney." And, that's where we are at now. Q. Did you, udring that meeting, tell him you intended to pick up the car? -37- ~ ~ Roger England - Direct A. I told him I would sheriff the car and immedi- ately contacted my attorney to make arrangements to sheriff the car. Q. Have you, subsequent to the meeting you had with Mr. Swidler, have you learned of any oral agreement that existed? A. Yes, I did learn he had an oral agreement with Mr. A. H. England. Q. [chat were the terms of that agreement? A. The terms of the agreement - - - MR. GROSS: Objection, Your Honor. I believe if this gentleman wants to present testimony and enumerate details on behalf of this agreement, he should have ter. A. H. England here. THE COURT: I sustain the objection. NIR. BERNSTEIN : Your Honor, n7r . Swidler has , of course, raised this oral agreement. It seems to me that once raised, the terms are applicable. THE COURT: ~nlell, but then why don't you call Mr. A. H. England in to say what the terms are? That's what he's objecting to and it's a question of whether he was speaking for the company or not. So far, your testimony confirms what nor. Swidler said here, there was an agreement with Mr. A. H. England and he's the only one who knows what it was first hand. BY 2.7R. BERNSTEIN: Q. Mr. England, when you went to take the car, did -38- 1 rF • Roger England - Direct you take someone with you? A. Yes . Q, Who went with you? A. Stan Bobula. Q. An employee of the corporation? A. N o . Q. Who is Mr. Bobula? A. Mr. Bobula is a gentleman that owns a business but he does occasionally have CCNB pick up automobiles when they're overdue. Q. And, did you find the car in the drive~aav? THE COURT: Well, there's no dispute that they found the car. BY MR. BERNSTEIN: 0. And, was the car locked? A. No. It was not locked. Q, And, did you have a set of keys? A. Yes . Q. So, you used those keys to remove the car? A. Right . Q. Thank you. Mr. England, would you be aware of ad- vertising bills coming in to England Motors? A. Normally, any advertising bill would have to be authorized by the general sales manager. Q. Are you aware, then, of some of these bills from wloo? -39- /~ Roger England - Direct A. No . Q. Why not? A. Principally because our computer was messed up at the time. Our billing system was messed up at the time. We weren't cutting any checks and this is what I was going by and when I got the call from the bank, that's when I first became aware that there was even anv car out on anv type of agreement with WIOO. 0. You actually didn't know there was a vehicle being leased? A. Not until the bank called me and I looked at the lease . Q. How many leases do you - - - THE COURT: We don't have to go into that. This case is pretty simple if we keep it simple. MR. BERNSTEIN: I'm trying to, Your Honor. BY MR. BERNSTEIN: Q. The lease that you became aware of, though, was on the lst. You testified to that. 1_`QR. BERNSTEIN: I have no further questions. THE COURT: Any questions? MR. GROSS: I have no questions, Your Honor. THE COURT: You may step down. Anything else? MR. BERNSTEIN: No, Your Honor. THE COURT; Well, gentlemen, as I see this case, it's very simple and I don't intend to make it very complicated, -40- j but I guess I'll have to give you a full hearing on it because I'm going to issue the writ o~ replevin and bond in the amount of $4000,00. It seems he was led to believe that he was going under the prior agreement. I would think that the thing to do is, he'll accept the advertising of $543 or let him give you a check and end this thing be- cause it was the intention of the parties all along that that's the way it was. It was no fault of his. He went on giving you advertising and now to have stripped him of the car because of your neglect wouldn't be right. But, that will be taken up at the full trial, but, that's the way I feel about it now. I don't see anything that changes it much. So, we'll grant the order, the issuance of the writ of replevin for repossession of the car on posting of bond in the amount of $4000.00. * ~ "ORDER OF COURT AND NOW, April 19, 1976, after hearing, it is ordered and directed that a writ of replevin issue and possession of the v~cle be delivered to [9IOO, Inc. on posting of bond in the amount of $4000.00. BY THE COURT s/ Clinton R. Vdeidner J." -41- Id • I hereby certify that the proceedings and evidence are contained fully and accurately in the notes taken by me on the within matter and that this copy is a correct transcript thereof. ~ a ~/ ~- ~1.f~o a i ~ ~ r ~ 7~tz~-t ~~ Catherine F. Krout Official Court Reporter The foregoing record of the proceedings in the above matter is hereby approved and directed to be filed. Ju ge J~n~ 10, 1976 ~ ~_.F c; ~ , ~ -`-i C. ~ ~ ~'~ •~ r' ~i L`a i Y. TM C.~ ~~ - ,:a' --~ U L~ ~~ J 1: _r ~ ~ -- ~~~2Ca ~ _~ ~ ~ rrt "..~ ~ ~ Cam' ~ "~ -'~ IN THE COURT OF' COMMON PLEAS OF CUn![BERLAI~TD COUNTY, PENNSYLVANIA CIVIL ACTION - LA?^J 4dIOO, ITJC. , Plaintiff vs ENGLATdD MOTORS, INC. and ENGLAND LEASII`dG, INC . , Defendants . No. 1173 Civil Term, 1976 REPLE~IIN Hearing held on Thursday, Jane 17, 1976, before HONORABLE CLINTON R. t~TEIDNER, Judge, Carlisle, Pennsylvania, in Court Room No. 2 APPEARANCES: G4ILLIA.M M. GROSS, Esquire Krank, Gross & Casper Suite H, 1301 North Front Street Harrisburg, Pennsylvania 17102 For the Plaintiff GEORGE W. GEKAS, Esquire MILTON BE RN STEIN, Esquire Mel_man, Gekas, Nicholas & Lieberman 405 North Second Street Post Office Box 902 Harrisburg, Pennsylvania 17108 For the Defendants Reported by Catherine E. Krout Official Court Stenographer ~ `a ~~ I N D E AS TO WITNESSES: FOR THE PLAINTIFF: Harold Swidler Evelyn Trimmer Roger England (as of cross - testimony taken from notes of testimony of hearing held on April 19,1976 AS TO EXHIBITS: FOR THE PLAINTIFF: 1 through 5 RESERVED RULINGS: Page: 5, 7, 11, 24 X D C RD RC 2 25 50 64 81 Offered 76 48 71 73 Admitted 76 • (Court convened at 10:05 a.m.) THE COURT: Are you ready to proceed? MR. GEKAS: Yes, Your Honor. THE COURT: Do you want to make an offer for the record? MR. GROSS: Yes, Your Honor. In this replevin action, we have had a hearing on the plaintiff's application for a writ of seizure and I would move that the record from that hear- ing be made part of the record in this case. MR. GEKAS: If the court please, the defendants object to the admission of the prior testimony in this case for several reasons. First of all, the issues are totally different. The issues in the case held before Judge Weidner in the previous instance had to do with whether or not there existed probable cause for a writ of possession of an auto- mobile. The rules of court governing the new replevin action themselves stipulate very carefully the proposition that that cannot be determinative of the ultimate issues of the case but only the possibility of determining whether or not seiz- ure should be permitted. We ask that the judge prohibit the introduction of prior testimony. Secondly, the defendants in this case will be invoking, very properly, the parol evidence rule which is extremely important, the basis of the complaint being a written agreement. The prior testimony then would have to be submitted to the defendant and a line by line ob- jection be permitted by the court. That would seem to be fruitless. At this point, we should proceed and let the ob- jections stand for themselves as to how much - - - -1- • • Harold Swidler - Direct MR. GROSS: Your Honor, we believe that the issues in this case is the same. The question is the validity of possession. At the first hearing, under Rule 1075.1E, the question before the court was the probable validity of plain- tiff's claim. I think the issue basically is the same. The parties are the same. They are here represented and this is not any kind of extra-judicial testimony outside the scope of this hearing. It is within the scope of our own hearing and I think you would save a lot of time if we would make the testimony part of the record and then pro- ceed from there with objections. THE COURT: I feel there is some merit in the objection, so, I'll sustain the objection. But, you still have the right to go over the transcript and anything that you think is rele- vant and admissible in this case, offer it for evidence in this case, but, it will be up to you to make the offer so that an objection can be made on the record and a ruling made. MR. GEKAS: Thank you, judge. MR. GROSS: We'll call_ Harold Swidler. H A R O L D S W I D L E R, a witness on behalf of the plain- tiff, called as a witness, being first duly sworn accord- ing to law, testified as follows: DIRECT EXAMINATION BY .MR. GROSS 0. State your full name, please. -2- • • Harold Swidler - Direct A. Harold Swidler. Q. Your address? A. 845 Hamilton Street, Carlisle, Pennsylvania. Q. What is your connection with ~nT100 , Inc . ? A. President of W100. Q. And, that's a corporation? A. That's correct. Q. And, what is the principal business of the corpora- tion? A. Advertising, running a radio station. Q. You operate a radio station? A. That's correct. Q. And, that's radio station W100 in Carlisle? A. Correct. Q. Where is that located? A. 180 York Road. Q. And, you're in charge of the operation of that sta- tion? A. Right. Q. Now, this proceeding concerns a 1974 Javelin automo- bile? A. Yes . Q. Can you tell us how you acquired that vehicle? A. We Mr. Harold England and I had agreed in an oral agreement - - - MR. GEKAS: Objection, if the court please. Here is -3- ~ • Harold Swidler - Direct where we want to state the objection. Pursuant to the Com- plaint filed by the plaintiff himself, the averments of the Complaint, beginning with paragraph 8, conclude by pleading a leasing agreement which is marked as Exhibit A in the Complaint. The averments prior to that concern alleged oral understandings and agreements reached between Harold Swidler, acting for t~1100, and England Motors, which is not a party to the replevin, did not have possession of the automobile. THE COURT: England Motors is a party defendant. MR. GEKAS: It is, but we feel as to the possession of the automobile and the issues of replevin as it will de- velop, is not in the case at all. But, nevertheless, putting that aside, allowing for the fact that it has been named as a defendant, paragraph 8 avers the oral understandings. The parol evidence rule prohibits any oral understandings prior to that agreement or simultaneous with it and it has been pleaded by the plaintiff that written agreement and it must plead its case based on the wording of that agreement and nothing else. MR. GROSS: Your Honor, the pleading is that an oral agreement was entered into between the plaintiff and England Motors, Inc. As part of that oral agreement, there is an aver- ment that the so-called lease agreement which purports to be between defendant, England Leasing, Inc. and W100, would be signed as an accommodation to the people with whom the plain- -4- • • Harold Swidler - Direct tiff was dealing. I don't believe that the parol evidence rule in any way would precedent the proof of the oral agree- ment entered into between plaintiff and England Motors, Inc. and about which testimony will be given here. And, we think, also, and will show that the preson representing England Motors, Inc. was the same individual as represented England Leasing, Inc. and to the extent that that written agreement - - - THE COURT: You said individual. MR. GROSS: The same individual that was representing England Motors, Inc. at the time of this oral agreement was also representing England Leasing, Inc. There was one con- versation between the plaintiff and the gentleman named Harold England, and we believe that even England Leasing, Inc, would be bound, therefore, by the terms of the oral agreement and we are prepared to show the existence of that oral agreement and the fact that it would not be superseded in any way by the written agreement. MR. GEKAS: If the court please, if, indeed, the enter- ing into the written agreement was an accommodation would be proved by oral agreement and so forth, the judge has the duty of reading that agreement and deciding whether or not it does, Whether it was executed for accommodation is a legal question. THE COURT: I'll reserve ruling on this objection. We'll go ahead and we'll argue it later. -5- }; • ~ Harold Swidler - Direct MR. GROSS: What was the last question? MR. GEKAS: I'll have a continuing objection as to any oral understandings reached prior or simultaneous with the written agreement marked Exhibit A. (Last question read back by stenographer) BY MR. GROSS: Q. Would you continue? A. Mr. Harold England and I agreed orally - - - THE COURT: I have difficulty hearing you. mill you speak louder and into the microphone? A. Mr. Harold England and I agreed orally for a sum on the vehicle and in return, we would be advertising for them. This is basically all agreements as far as business transactions between Harold England and I were. As far as the lease was concerned, this was - - - Q. Well okay. Go ahead. A. The lease was just an accommodation as far as I knew, they would be paying so much per month and, in turn, we would be advertising for them. Q. You say you had an oral agreement with Harold England on behalf of England Motors, Inc.? A. Right. Q. And, England Motors, Inc. is a corporation operating an American P~otors automobile agency in Harrisburg, Is that correct? A. Correct. -6- ~, r • . Harold Swidler - Direct Q. And, Harold England, at the time, do you know what position he had with that company? A. To the best of my knowledge, he was always general manager of England Motors and I think part owner. BY THE COURT: Q. Of what? A. Of England Motors. MR. GEKAS: We'll stipulate that he had authority to deal for England Motors, Harold England, at that time. BY MR. GROSS: Q. And, you say you took the vehicle in return for ad- vertising. Is that right? A. Yes . Q. And, can you tell us what was the value of the ve- hicle and how much advertising you were to perform was as- certained? A. For the total amount of the vehicle? Q. Yes . A. Including everything that - - - 0. Everything. Do you recall what the total amount was? A. I think it was around $7000. 0. Now, is it your testimony, then, that there were no cash payments to be made? A. No. We never had any cash payments, Q. Was that your understanding at the time of the oral agreement? A. Yes . -7- 4 ' • ~ Harold Swidler - Direct Q. And, when did that take place? Do you recall? Was that the beginning of 1974 about January 1st? A. I believe so. Q. Now, had you previously dealt with England Motors on the same basis? A. Yes. We had a similar arrangement with the vehicle before. MR. GEKAS: Objection, if the court please. Similar agreements or any agreements prior to this time are totally irrelevant. MR. GROSS: Your Honor, we believe that relevancy can be shown and we propose to do that during the course of the testimony. It was definitely reliance - - - THE COURT: Reserve ruling. MR. GEKAS: What was the ruling? THE COURT: I'm going to reserve ruling on it. You're going to give me briefs and argument. MR. GEKAS; May I ask for a continuing objection on prior arrangements? BY MR. GROSS: Q. All right. Mr. Swidler, you say there were some prior arrangements between you and England Motors? A. Yes. We have dealt with them on several different cars, four or five. It was always advertising and never cash. Q. In other words, you purcahsed four or five vehicles from them in return for advertising services only? -8- F ; r ~ ~ • Harold Swidler - Direct A. Yes . Q. And, was that over the past several years? A. Yes. The past almost ten years. Q. To the best of your recollection, did you ever pay cash for any vehicle? A. No. We never paid cash. Q. And, were these always new vehicles? A. No. Not always. The time the vehicle before, that was new. Q. The vehicle immediately before the one that is the subject of this hearing? A. Yes . Q. And, do you recall about when that agreement was en- tered into for that previous vehicle? Q. Ummmm - - - Q. Well, I might be able to show you something later that will refresh your recollection. Getting back to the agreement in January of 1974, you have indicated that the purchase pricev~as somewhere around $7000? A. Yes . Q. And, that you would be paying for that in the form of advertising? A. Yes . Q. How would W100 know what advertising would be re- quired to be performed? -9- ,' ~, ~_ • • Harold Swidler - Direct A. I would make almost every week or as required, I would stop by to see England Motors, Harold England, and he would tell me what advertising we should run and approxi- mately how long and instructions from Harold and later on from Mr. Dave Fink, that he would .tell what to do or what we should run and this is the way it worked. Q. You say after Harold England, there was a Mr. Dave Fink that gave you instructions? A. Yes. He's also general manager and part owner to my best understanding. Q. And, about when did you start seeing Dave Fink? Can you recall? A. Oh, I can't recall exactly. Whenever Mr. Fink started working there, which was eight months I'm not sure exactly when he started. Q. But, for the last several months in Bch you per- formed services, it was Mr. Fink? A. For the past six or seven months or longer that we performed the services, it was Mr. Dave Fink, the general manager . Q. Was Mr. Harold England still with the firm? A. No. Mr. Harold England, I believe, went in his own business at West Shore AMC. Q. Do you recall Gtat sort of advertising services you handled for England Motors? A. Advertising for American Motors cars and used cars. -10- Harold Swidler - Direct Q. American Motors cars? A. And, used cars. Q. And, used cars? A. Right. Q. How about Jeeps? Do you recall? A. Yes. Jeeps. MR. GEKAS: If the court please, may I enter an objec- tion to all of this as irrelevant. I know the court wants to hear everything at this point and I'm constrained to ob- ject to the relevancy of this. THE COURT: Just what are you objecting to? MR. GEKAS: These are matters concerning the question of advertising that has to do with an agreement between them and England Motors. This is a Complaint in Replevin for the repossession of an automobile which has to do with a written lease agreement. It has nothing to do with a con- tract between England Motors and W100 for advertising. MR. GROSS: My only comment I think is that the court has reserved ruled on the validity of the oral agreement and if the oral agreement is sustained, obviously all this testimony is relevant. THE COURT: I have so far in twenty minutes have four reserved rulings. You'll be here until 1978 getting rulings and I don't care. You have your objection on record. Reserve ruling. You're going to file briefs on these, MR. GEKAS: Okay. Thank you. MR. GROSS: Thank you, Your Honor. -11- a 6 ~ • Harold Swidler - Direct BY MR. GROSS: Q. Now, did GI100 perform advertising services for England Motors? A. Yes. Q. And, for how long a period of time did this go on? A. Totally for approximately nine to ten years. Q. No. Just in connection with your last agreement, when did the advertising stop? What occasioned the stoppage of the advertising? A. Until Mr. Roger England called me and until Dave Fink was there. Q. Roger England called you. That's when you stopped advertising, when you saw Mr. Roger England? A. Yes . BY THE COURT: Q. When was that? That doesn't tell us when. BY MR. GROSS: Q. When was that? A. This was, I believe- - - Q. March 22nd? A. The end of March, to the best of my recollection. MR. GEKAS: Have to object to the leading questions. MR. GROSS: It's an admission. It's on the record. THE COURT: What was the date? MR. GROSS: March 22nd, 1976. A. It was the very end of March. I can't recall the exact -12- a; • Harold Swidler - Direct date but it was the end of March. BY THE COURT: 0. Wha t year? A. 1976. BY MR. GROSS ; Q, Now, until this time, did you acknowledge to Eng- land Motors the performance of advertising services? A. Yes . Q. How was that acknowledged at the time? A. [dell, we would send them times that the spots were run. We would ask I would stop by every week and Mr. Fink would tell me to run their air jingles that they had given to me. The rest was run, like, the sharpest pencil in town, which we performed during '76. But, we would al- ways tell them each month the amount of advertising that we have run and the type of advertising. Q. Who was responsible for sending this information to England Motors? A• My secretary, Evelyn Trimmer. Q, Now, there has been some reference already made con- cerning a leasing agreement. Would you tell us first of all, I show you a document marked Plaintiff's Exhibit No. 1, which ?purports to be a four page document entitled lease agreement. Is that the document to which reference has been made? A. Yes . -13- • • Harold_Swidler - Direct Q. And, was that document signed by you at the time you entered into the agreement with Harold England? A. After our oral statement, this was signed by me, yes. MR. GEKAS: What was that response? THE COURT: I didn't hear it either. A. After our oral agreement that we had agreed, you know, what we would do, then I signed this lease strictly as an accommondation again. BY MR. GROSS: Q. taho executed the agreement on behalf of England Leasing? A. Harold England. Q. Tell us how that document came up in the conversa- tion between you and Harold England. A. To the best of my knowledge and belief, this was strictly an accommodation, what they would be paying to the bank for the car. 0. When you say they would be paying to the bank, who? A. England Motors. Q. That England Motors would be paying to - - - A. To the bank for the car. Q. The bank or England Leasing? A. Well, to England Leasing, whoever it would be, I'm not sure. Q. You really don't know what arrangement existed between -14- • Harold Swidler - Direct England Motors and England Leasing, do you? A. N o . Q. But, in any event, that lease agreement calls for the payment each month of $230,02. Did you ever make a payment to England Leasing or to anyone else in the amount of $230,02? A. No. TnTe never made any payments, only advertising. Q. Did you ever receive any correspondence from Eng- land Leasing? A. N o . Q. Did you ever receive an account book from England Leasing? A. I don't think so. Q. Do you recall ever receiving any notices from Eng- land Leasing about the statement of this account? A. There was never any transactions between us and Eng- land Leasing. It was strictly between Harold and myself. 0. So, if England Leasing did receive any monthly pay- ments, you really don't know? A. No . Q. I show you~nhat has been identified as Plaintiff's Exhibit No. 2 and ask you if you can tell us what that is. A. This is our entry form of our performance in adver- tising for England Motors. THE COURT: Is that headed "Statement of Account"? MR. GROSS: Yes, Your Honor. I'm using a photocopy. I have the originals here. -15- i" • • Harold Swidler - Direct THE COURT: Any objection? MR. GEKAS: No objection. THE COURT: All right. BY MR. GROSS: Q. Mr. Swidler, what entries are made on this account? A. Each month the amount that we would be advertising. Q. And, under whose control is this account supervised? A• My secretary. Q. Is that Mrs. Trimmer? A. Right. Q. Going back to Plaintiff's Exhibit 1 for the moment, the lease agreement, that agreement reflects monthly pay- men a of $230.02 for 24 months and an additional payment of $1900, all of which, I believe defendants' counsel would agree, totals $7420.48. Would that have been the total amount? THE COURT: Did he agree? MR. GEKAS: I can't agree to that because the figure is $5520.48 on the face of it. That's part of the argument, too, in the case of inadmissible evidence. Total trade price is - - - MR. GROSS: If Mr. Gekas wants to stipulate that the total was the price, fine. I would so stipulate. I'm sav- ing that the lease agreement, which is Plaintiff's Exhibit 1, reflects total payments that would be made of 24 x $?_30.02. plus $1900, or a total of - - - MR. GEKAS: How does the $1900 enter into - - - -16- ~ ~ Harold Swidler - Direct MR. GROSS: It's shown on the lease agreement. MR. GEKAS: That's for an option. ^4R. GROSS: What I'm saying - - - THE COURT: The lease agreement is in evidence. You can argue that without arguing here. MR. GROSS: I'm just asking Mr. Gekas if he disagrees to the total figure of $7420.48 as being the figure he meant when he said about $700. A. (Mr. Swidler) Right. BY MR. GROSS: 0. There's no .argument about that? A. No . Q. Now, Mr. Swidler, can you tell us,-for example, if the statement of account, Plaintiff's Exhibit 2, reflects the actual amount of .advertising services performed by W100 for England Motors each month? A. Yes . Q. And, those amounts were for various amounts during the course of the two years and some odd months of this particular agreement. Is that right? A. That's correct. ~? Can you look at that statement of account, looking at the showing you the last page of that account, can you tell from that page at ~ti=hat month the original price of $5520.48, when that figure was fu]_ly paid by advertising services? A. The lit figure on this? -17- `~;,~. • ~ Harold Swidler - Direct Q. No. When the $5520.48 was entered into your books of record. Is that right? A. Yes . Q. And, when did that become fully paid? A. I think it was in the month of October. Q. The month of October. That would be 1975? A. Yes . Q. Now, thereafter, did you continue to perform adver- tising services? A. Yes . Q. And, you sent statements in the same wav? A. That's right. Q. You never had any discussions specifically about the car, did you? A. N o . Q. Did anybody from England Motors raise any questions about the car? A. No . Q. Until your conversation with Roger England? A. That's right. Q. Did anybody from England Motors or England Leasing raise any question about the car? A. N o . Q. As a matter of_ fact, from the time you entered into the agreement on January 1st, 1974, or thereabouts, did any- body, up until your conversation with Roger England, did anybody ever speak to you and represent themselves as speak- ing on behalf of England Leasing? -~ r -18- r . • ~ Harold Swidler - Direct A. N o . Q. Now, tell us, if you will, what happened at the end of March. You said something about getting a call from Roger England. THE COURT: March of what year? BY MR. GROSS:. Q. 1976. A• I received a call from Roger England that he wanted to see me and I came .over to his place, It's really the first time I've ever met Roger. And, he asked me whether I brought the car back. I said, "I'm exercising the option, It's almost paid off. I'm prepared to pay you the differ- ence of advertising." And, he said, "No. I want the car," So, we started to get into an argument. I said, "Look, we have never had arguments in ten years and I don't want to create any," I said, "Maybe we'll resolve it differently rather than get into an argument." Q. What you're saying is he claimed there was $1900 due for the automobile. Is that right? A. He didn't say anything. He said he wanted the car. Q He wanted the car? A. Right. Q. And, the reason he gave you was because you didn't Pay the $1900? THE COURT: You're adding to what he said. The man said - - _ MR. GROSS: I'm sorry. -19- ,1 • Harold Swidler - Direct THE COURT: You're testifying for the man. ^'IR. GROSS: I'm sorry, Your Honor. I thought I heard him mention the $1900. THE COURT: No. He said he didn't. He said he wanted the car back and that's all he said aid he said he was exer- cising the option. A. He wanted the car, to the best of my recollection. Possibly he could have said $1900. I can't say for sure. THE COURT: You better start watching your objections here . Z"IR. GEKAS: If the court please, I object to this whole thing. I want the whole thing stricken. I think it's totally irrelevant. THE COURT: All right. I'll object for you. MR. GEKAS; I have a continuing objection on everything Mr. Swidler is saying, .everything, and at the proper moment, I'm going to ask that his testimony be stricken total]..y except for the written agreement. BY MR. GROSS: Q. Did yaitell Mr. Roger England what you felt was due on the car? A. Yes. I told him I believe I only owe you about $500.. Q. And, you offered to pay him that? A. I offered to pay him the $500 and he said, "No. I want the car." Q. Now, how did you arrive at that about $500 figure? A. Because we had advertised for six months and if you -20- { ~~, • Harold Swidler - Direct. multiply 6 x $230, whatever amount it would be, it would come out to about $1400. It's the difference between $1900 and $1400, it's $500. Q. In other words, it would be the difference between the $1900 figure on the lease agreement and the balance shown on your books for advertising services that England would owe you? A. Right. Q. So, did you return the car to him at that time? A. No, I didn't. Q. What happened subsequent to that time with regard to the vehicle? A. One evening, somebody had come over and just took the car. I thought somebody had stolen it. Q. And - - - A. The car was locked. Q. Do you recall when that was? A. I think it was a Friday evening, late evening. ¢ And, about when did that take place? How long after the conversation with Mr. Roger England? A. To the best of my recollection, I think approximately a week or something like that. Q. Now, the car was taken from your driveway? A. Yes . Q. Do .you know whether it was locked? A. The car was locked, yes. Q. And, did you subsequently find out who took it? -21- ~-:,~ • • Harold Swidler - Direct A. Yes . MR. GEKAS: aE~ stipulate, if the court please, that the car was repos:~essed by England Leasing, Inc. THE COURT: England Leasing? MR. GEKAS: Yes. THE COURT: All right. MR. GROSS: Do you stipulate that Roger England took the car? MR. GEKAS: Yes. BY MR. GROSS: Q. Did you subsequently see the vehicle? MR. GEKAS: What was the question? BY MR. GROSS: Q Did you subsequently see the vehicle? A. No . Q. But, you did receive a communication that Mr. Eng- land had the vehicle, did you not? A. Yes . Q. And, the vehicle, has that been returned to you? A. N o . Q. Now, did you have possession of the vehicle through- out the entire time from the commencement of the understand- ing between you and Harold England until it was taken from your driveway sometime around the end of March, 1976? A. Yes . Q. Did you at any time ever authorize Mr. England or anyone else to take the vehicle from you? -22- ~ . ~ f Harold Swidler - Direct A. N o . Q. And, were you who was using that vehicle? A. I was using it. Q. And, were you using that personally? A. Yes . Q And, were you using that in connection with your business interests and personal use? A. That's right. ¢ What has been the result of having the vehicle taken from you? A. I've had a lot of problems since I've been without a vehicle, borrowing or leasing or I haven't had any. This was my only transportation. THE COURT: What are we doing now? MR. GEKAS; He's going to put a prior lease agreement in. I have 65 continuing objections. BY MR. GRO5S: ¢ I show you what has been identified as Plaintiff's Ehixibit No. 3. You referred previously to several prior arrangements for acquiring cars from England Motors. Can you tell us what that agreement was? A. This was for in December, 1971, for a car, Ambassador. ¢ Is that the same kind of agreement? A. Exactly the same. Q. And, was the understanding at that time also with England. Motors an oral understanding as far as advertising services and pay for the vehicle? -23- .-, ~. • • Harold Swidler - Direct A. Exactly the same oral understanding, yes. ¢ And, dial you, in effect, eventually pay the en- tire purchase - - - MR. GEKAS: If the court please, I have to object to leading questions. I have to object to the prior agreements. I have to object to - - - THE COURT: You have an objection, very emphatic. MR. GEKAS: One big "I object" all over the place. THE COURT: I reserve ruling. MR. GEKAS: Thank you. BY MR. GROSS: ¢ The total price for the vehicle described in that prior agreement, how was that paid by W100? A. It was paid totally in advertising. ¢ And, did that include both the total of the monthly figures shown in the lease as well as the option price at the end? A. That's right. ¢ And, would that also be reflected on your statement of account which has been identified as Plaintiff's Exhibit No. 2? A. Yes . ¢ Since your conversation with Mr. Roger England, have you performed any additional radio advertising services? A. No.~ Not for England Motors . ¢ Has England Motors ever paid or offered to pay any portion of the amount shown to be due by your statement of account? A. N o . -24- • • Harold Swidler - Direct Cross MR. GROSS: That's all I have of this witness at this time. THE COURT: Cross examine. CROSS EXAMINATION BY MR. GEKAS: Q. Now, Mr. Swidler, this arrangement with Harold Eng- land at the outset, correct me if I'm wrong, was that you would provide radio advertising to England Motors and Eng- land Motors would provide you, or pay for, an automobile. Is that correct? Or would they give you an automobile and trade an automobile, I think is what you said, for adver- tising? Is that what you said? A. Trade advertising for an automobile. Q. Now, the agreement that you signed called for two hundred and twenty some dollars per month. Is that correct? The leasing agreement. A. The payments they would be making to - - - Q. In this leasing agreement, what was the amount of the payment? $230.02. A. We would advertise for two hundred and some dollars per month. Q. And, in this arrangement with Harold England, it was understood that you would be providing advertising that would equal the monthly payment, pursuant to this agreement. Isn't that correct? A. Harold asked me to advertise for so much per month. -25- Harold Swidler - Cross At times, we would advertise more than that. It did not have anything to do with this, only as a - - - ¢ You mean that you would - - - MR. GROSS: Let him answer the question, Mr. Gekas. MR. GEKAS: I apologize. BY MR. GEKAS: ¢ You may answer. A. The advertising would be done only as much as Harold wanted. The payment had nothing to do with it. If Harold asked me to run 200 spots for him, I would do so and we have done special occasions for sales and so forth, whatever Harold wanted, that's what we would be advertising. Q. And, you're saying that the agreement for two years means nothing here? A. This was strictly between that didn't really have anything to do with it. It was an accommodation between England Leasing and England Motors. ¢ So, you felt you were buying a car? A. Certainly. ¢ Even though you entered into that agreement? A. This was only an accommodation for England Motors. Q. Did you keep records on what you were spending for iZis car? A. Did we keep records on what was advertised? Certainly. ¢ No. I'm asking you, did you keep records for your in- come taxes on your books of account as to what you were ex- pending to buy this car? -26- ~~. ~ r Harold Swidler - Cross A. Did we keep records? Certainly, ¢ Who has those records? ~ A. Our accountant has records on it. J Q. Did you instruct them to depreciate the amounts that you were using for advertising to the credit of Eng- land D~otors? MR. GROSS: Objection. I believe they're completely irrelevant to the issue before us. Any instructions that he might have given to his accountant with regard to treat- ment for income taxes is not relevant to the agreement of the parties. THE COURT: This is cross examination. It goes to 'credibility. Overrule the objection. BY MR. GEKAS: ¢ You stated you were buying the car and you have bought cars before, haven't you? A. Yes, Q. You've bought cars outright, haven't you? A. Yes . Q. Now, did you give instructions to your accountants in this case to depreciate- - - A. I rely on my accountant, whatever he does. THE COURT: Would you wait until he asks the question before you answer. Ask the question, please. BY MR//. GEKAS YQ. In your business, did you take as an expense the -27- • ~ Harold Swidler - Cross amount that was chargeable for this automobile? MR. GROSS: Objection again. I object, Your Honor. This calls, first of all, for certain conclusions, and, secondly, whether somebody takes something as an expense or not is really irrelevant to ownership. This depends on income tax laws and so on. THE COURT: This is cross examination. Overrule the objection. MR. GEKAS: Thank you, Your Honor. BY MR. GEKAS: ¢ Did you take it as an expense? A. I can't really tell you. I don't I can't re- call. Q. Are you saying that the agreement was to go beyond the 24 months that is listed on that agreement? A. Our oral agreement was for the total price. ¢ Did you at any time communicate to England Leasing, Inc. that you were exercising the option after the conclusion of the two years specified in that agreement? A. It was understood. Q. Did you communicate, did you send any letter saying you were taking the option? A. They never asked us. BY THE COURT: ¢ The question is, did you ever tell them you were ex- ercising it? -28- Harold Swidler - Cross A. I certainly, if we were advertising for them, it means we were exercising our option. BY MR. GEKA5: Q. I'm asking you, did you write a letter to them and say, "We're exercising the option."? A. We actually never had any letter writing. Most of our - - - Q. Then, the answer is no? A. I'm trying to tell you. Q. What is the answer? Yes or not? Did you ever write a letter saying you were exercising the option? A. No. It was all oral. Q. Did you ever call them on the telephone and sa_y, "We exercise the option. We offer you $1900 and accept the car." Yes or no? Then you can explain. A. No . Q. Now you can explain. A. By using the advertising, it's naturally assumed. They're not paying us anything for it. Q. This contract goes from January 1, 1974 and calls for 24 months is the term of the lease. Is that correct? Am I correctly stating it? A. What you're reading there is correct. Q. Now, that would take us up to January of 1976. Is that correct? According to the term of this agreement? A. Yes . -29- ~. -~ • • Harold Swidler - Cross ¢ Now, at the end of the agreement, the provision says at the end of this contract, W100 has the option to urchase this automobile at $1900. IstiZat correct? A. Yes . Q. From January 1, 1974 to 1976, to March of 1976, did you have any agreement with anybody to continue adver- using? A. Naturally. I would stop by each week or as often as they would want me to stop by and they would give me ad- vertising. Q. So, from January 1, 1976 to March 24, 1976 or the date when you had the conversation with Roger England, you state that you went in there weekly to check on advertising. Is that correct? A. Weekly or as often as they would want me to stop. Q. Let's analyze that. Did you go in weekly or not? A. If I would come in to see, whether it would be Dave Fink or Mr. Harold England, he would say, "Run this for the rest of this week and for at least two weeks or three week s or one week." Q. Did you see HaroldEngland between January 1, 1976 and March 24, 1976 for him to order more advertising? A. I would see them as often as was needed. ¢ Will you answer the question.? BY THE COURT: Q. The question is, did you see him between January l -30- • C' Harold Swidler - Cross and March of 1976? A. Harold England? Yes. BY MR. GEKAS: Q. Where? A. Are you speaking see, you're confused. ¢ I certainly am. A. In that period of time, Harold worked for himself and - - - Q. Then, whey did you go to see him for instructions firth England Motors? A. You're Infusing the issue. That wasn't Harold. Q. Then, who did you see? A. Before Harold left, I saw him. After that, it was Dave Fink. Q. And, did you go to see Dave Fink every week? A. As often as he wanted. Q. Between January 1, 19 - - - A. I'm giving you the answer. As often as he wanted me, every week or two weeks, only as often as he wanted. ¢ Mr. Swidler, I'm asking you now between January 1, 1976 and March 24, 1976, did you go to see Mr. Fink at all? A. Yes . ¢ Where? A. England Motors. Q. Where? A. On Cameron. Q. In what community? A. Harrisburg. -31- -, ~ ; • • Harold Swidler - Cross ¢ When you went in there, how many times did you go to see him between January 1 and March 24? A. As often as he would want. BY THE COURT: ¢ Can you estimate the number of times? A. Sometimes maybe three times a month, maybe twice a month, maybe more than that. One month I saw him possibly in one week three times. He wanted me to change a jingle for him that I could include scripts and that particular week, I saw him three or four times. BY MR. GEKAS: Q. And, when you met with him, that would be for ad- vertising for another week? A. For what to run. Q. For how many days? A. As often as he wanted. Sometimes it would run, in a period of time, he said, "Run the sharpest pencil in town." I would go in and see him and he would say, "Run the same thing." And, then he wanted to run about free air condi- tioning and he said, "Continue to run that." And, what else was there? That Pacer. He continued to push the Pacer car. Q. How long was, to the best of your recollection at least, what they gave you, how long was that to last? A. If I would stop in and he would say to continue run- ning the same thing, I would do so. Q. Well, you ran advertisements all the. way through to -32- ,.~ ~ i Harold Swidler - Cross March 24th. Is that correct? A. Per his instructions, yes. Q. I'm saying to you when was the time previous to March 24th when you last pfovided advertising pursuant to Dave Fink's wants? A. As I indicated to you, I would stop in sometimes even four times as often as he wanted me to stop by. I've been there many, many times. Q. I'm asking you, Mr. Swidler - - - A. I can't cay that I stopped four times or five times. I don't want to mislead you. Q. I'm going to help you, Mr. Swidler, the whole way. Now, the last item entered here is March the lst. Is that correct? A. Yes . Q. And, the previous one is February lst? A. Uh huh . Q. Did you see Mr. Fink between February lst and March lst? A. Between February lst and March lst? ¢ Yes. A. To the best of my recollection, I would say I saw him as often as he would want or call him. Q. You've made that clear. Now, I'm trying to specify, Did you provide any advertising after March lst? A. Yes . Q. Did you see him after March lst then? -33- ,+ '-~. , • • Harold Swidler - Cross A. I'm trying to tell you. I saw him as often as he wanted me to see him. THE COURT: You're not going to get an answer. A. He's told me to run advertising for two weeks, I would run it. Then if he said he wanted to run it for one week, I would run - - - THE COURT: Let`s take a recess. (Court recessed at 11:05 a.m.) (Court reconvened at 11:20 a.m.) (Continuing cross examination of Harold Swidler) BY MR. GEKAS: Q. Mr. Swidler - - - THE COURT: Mr. Swidler, I want to tell you to answer questions yes or no and don't give us a talk each time you answer a question. Answer yes or no. BY MR. GEKAS: ¢ Mr. Swidler, back to a previous point of reference, the last advertisement you offered for England Motors was March the 1st. Is that correct. Of '76. A. In the month of March. Q. For the entire month of March? A. Yes . THE COURT: Now, that isn't on the statement of account. MR. GEKAS: That's why I'm asking. THE COURT: It says the bill was March 1st and the accounting is dated February 1 to 29, aren't they in the fourth column? -34- ,, • • Harold Swidler - Cross MR. GEKAS: Yes. February lst to 29th. That's the last time, but in further answer, he says he provided for he month. of March also. BY MR. GEKAS: Q. Is that correct? A. Yes . MR. GEKAS: Which is not here. BY THE COURT: ¢ But, you didn't bill for that? A. I believe it was billed. BY MR, GEKAS: ¢ Well, the point is that you had agreements with Eng- land Motors for the month of March, too. Isn't that what you're saying? A. Yes . ¢ And, was that with Dave Fink? A. Yes . Q. Did you see Mr. Fink during the month of D4arch then? A. Yes . Q. Where? A. At England Motors. Q. How many times did you see him there in the month of March. A. I can't recall the exact amount. Q. Two times at least? A. At least. Q. At the end of February, for instance, where the -35- • Harold 5widler - Cross entries is here, February 1st to 29th, you didn't submit a billing or an invoice or a receipt or something to in- dicate to England Motors what you had~ut on the air, did you? You never sent anything to England Motors? A. We sent it each month. Q. At what time of the month? A. The end of the month. Q. Are you saying at the end of February, you sent an invoice showing what you had done to England Motors? A. To the best of my recollection,yes. Q. Do you have copies of those with you? MR. GROSS: Your Honor, the witness previously testi- fied that a certain individual took care of that. We have that individual here and we intend to offer her testimony as to what she sent. BY MR. GEKAS: Q. Them, your answer is your secretary did that to the best of your knowledge? A. Yes . Q. Did she deal with Mr. Fink, to your knowledge? A. I dealt with D4r . Fink . Q. All right. Now, in your statement of account there, there's an item on the first page, is there not, 11-1, I guess that's the year, '73, November 1, 1973. Here there's an item of trade car $5335.20. Is that correct? Do you have that in front of you? A. No . -36- • Harold Swidler - Cross MR. GEKA5: I ask the judge to follow with me. THE COURT: I have it. BY MR. GEKAS: ¢ On page 1, November lst, on the previous agree- ment that you're talking about, there's an entry, is there not, of $5335.20 as the value of a trade car. Is that cor- rect? A. Yes . Q. So, that is the amount that you and Harold England agreed to in the early agreement for the price of the car or the value of the .advertising that was supposed to be given to match that amount. Is that correct? A. The total amount that Harold and I agreed was for $7000 and some dollars. Q. I'm talking about the previous one. A. The previous one? Q. Yes . A. I don't recall exactly the total amount of the pre- opus one. It would be whatever - - - Q. Well, don't you put that amount in and isn't that that $5335. It says trade car. And, I'm asking you whether or not that amount reflects the agreement you reached with Mr. England as to the worth of the car or the worth of the amount of money that you would be paying off in advertising. Isn't that correct? A. I believe my secretary can answer the figures and -37- • • HaroldSwidler - Cross the accounting better than I can. I don't want to. I'm not sure of the figures. She handled all that. Q. Didn't you instruct your secretary as to what item to put in there? A. N o . Didn't you tell her what you and Harold England had agreed to as to the amount of advertising that you were going to give in return for the car? A. I would this is the way it was. I would go over to see Harold and he would give me whatever amount of spots that he would want, then I would come back and tell my secretary that they want so many spots for the next two or three weeks, of if there was to be any extra promotion, we would run the regular amount for $230, whatever it was. Q. You're not saying you didn't discuss the amount of the car, are you? Did you discuss that with Harold England in the. 1973 transaction? A. Did we discuss the amount? ¢ The value of the car? A. The total of the car, yes. Q. And, didn't you convey that information to your secre- tary so that she could enter it into this log? A. What I conveyed to her was to run $200 and whatever amount each month unless it was requested more. ¢ Well, how do you account for the amount of $5335.20 being entered in as trade - car on line 5 of that account? A. I cannot I think she could answer that better -38- r° • Harold Swidler - Cross that I can, the total amount of advertising. Q. I'll ask once more, yes or no, did you convey to your secretary or did not the information that resulted in her putting down $5335.20? Did you give that information to your secretary? A. No . Q. Okay. Then, further down on page 1, under January 4, 1974, where it says total trade price, the third line down from 1/4, total trade price for '74 AMX, $5520.48. This is the one in question here is it not? A. Yes . Q. You stated in answer to your counsel's question hat the total amount that you and Harold discussed was $7000 and some dollars? A. Yes . Q. And, that you were going to give advertising for that amount. Isn't that what you said? A. Yes . Q. But, the entry on January 4th is $5520.48. How do you explain that? A. I think, again, I would rather have my secretary ex- plain this because I did not get involved in the bookkeeping. Q. Did she deal with Harold England? A. Bookeeping is she's the girl that worked the books. I dealt with Harold strictly on what to advertise. Q. Did you give her a copy of that .leasing agreement or any of those lease agreements? A. They were sent to us and she would receive it. In fact, I didn't even - - - • • Harold Swidler - Cross Q. You signed it and left it with Harold England? A. Yes . Q. And, then, he sent directly to your secretary. Is that correct? A. I believe so. Whoever sent it that's from England Motors. Q Isn't it true, Mr. Swidler, that that $5520.48 figure for the 1974 Javelin equals the rental figure and that the $7000 is arrived at by exercising an option of $1900? Isn't that waht - - - MR. GROSS: Objection. I believe the question calls for several conclusions by this witness. MR. GEKAS: Certainly. THE COURT: Let him finish his objection. What's your objection? MR. GRO5S: My objection, Your Honor, is that counsel is trying to put statements in the witness's mind. He's referring to a lease agreement which speaks for itself. He's asking for a mathematical computation. We have agreed to the mathematics. He's putting words in which. I'm not sure the witness understands the import of the question. THE COURT: The witness can say he doesn't understand the question. But, this is cross examination and he's en- titled to go over every one of these figures and use them together or do anything with them. Objection overruled. Go ahead. -40- • , Harold Swidler - Cross BY MR. GEKAS: ¢ Isn't it truer Mr. Swidler, that the amount of $5520.48 reflected the amount that you and Harold England agreed to on the monthly amount and that the $700, those figures you're talking about, the $7000 figure, came into play only with the option of $1900.? A. No. That's not true. The total amount is what I was concerned with, the $7000 and the $400. Q. Then, why didn't you put that $7000 figure in here. It said total dollar price for '74 AMX. A. This leasing thing, the way I understood, was strict-1y an accommodation for them and whatever it was best for them to do it. I did not want to get involved with what they do. ¢ You knew at that time, according to this arrangement, with. Harold England, that it was a $7000 sum. Is that cor- rect? A. Yes . Q. But, you're saying that the $5520.48 was entered in here without your knowledge? A. The total amount, to my understanding, was $7000. and s ome dollars. Q. Where was that recorded? Where did that appear, that $7000 figure? A. It's an oral understanding between Harold and I that the total car would be $7000 and some dollars. This is the amount we would advertise for. Q. Did you instruct your secretary to put in $5520.48 -41- -.rt • • Harold Swidler - Cross on this total trade price for the '74 AMX? A. I did not instruct her. Q. Looking at page d again, then, on the previous transaction, the one on the first lease agreement, there's an item on January 4th, retail delivery price on Ambassa- dor, $1600. Doesn't that mean, Mr. Swidler, that you exercised the option that was contained in that first agreement and gave $1600 mare advertising so that you could take title to that car? Isn't that what happened? A. The total amount? ¢ Yes. In other words, you paid off the total amount of the car, made your entry of $1600, which gave you the right to get the title to the car. Isn't that what happened? A. No. We advertised for the total amount of the car. Q. When did you get the title, Mr. Swidler, to the Ambassador automobile? A. I can't recall that. Q. Mr. idler, isn't it true that you did not get the title to the Ambassador car until after the $1600 entry was made in there? A. Until everything was paid off, the total amount was paid off in advertising, yes. Q. You never had title to the AMX in this case. Is that correct? A. No. Not yet. -42- • • Harold Swidler - Cross Q. But, you did get title to the first car after that $1600 entry was paid? A. After the total amount of advertising was paid off for the car. Q. Didn't that first agreement call for $5335.20 then an option to buy at the end of that for around $1600? A. My understanding was for the total amount of the car. ¢ Now, in the first automobile, the Ambassador, isn't it true that at one point you went into England Motors and actually did the transaction saying you want the car and you would take title-then enter $1600 in credit for advertis- ing? A. N o . Q. You didn't go into England Motors to get the title? A. Not to the best of my recollection, no. Q. What did they say to you? "Enter $1600 more and you get the title."? A. No . Q. You just did that? A. We continued advertisement, yes. They wanted us to. Q. But, if you continued advertising, why didn't . why did you make the entry of $1600 at that one time? A. I don't quite understand your question. Q. Yes. I'm trying to make it clear. If you were in the practice of saying that the car is worth $7000 and that you would just go on and give advertisement all through there. -43- • Harold Swidles - Cross until the $7000 is used and then take title, why did you put down an item of $1600 as the retail delivery price on the Ambassador? A. I think this was strictly probably bookkeeping pro- cedures. I can't really tell you., Q. You don't know? A. N o . Q. Isn't it .true, Mr. Swidler, that the true arrange- ment between you and Harold England for the first car was that you would privide $533.5.20 worth of advertising in re- turn for England Motors giving you a car worth $5335.20 at that time either in leasing services or actual sale value? Isn't that the truth? A. My understanding was for the total amount of the car, whatever it was. That's the amount that I would adver- use for, 0. And, what was that amount on the Ambassador? A. I can't tell you, rea-ly, offhand. Whatever the total ffiount it was, the $1600 and $5000, whatever, whatever the total amount was. This was my understanding. Q. But, a statement on your own account says trade car $5335.20, Are you saying that that's not correct for the glue of the car that you and Mr, England agreed to? Is that what you're saying? A. No. I'm not saying that, Q. Is that not the value of the agreement that you and Mr. England arrived at? -44- • • Harold Swidler - Cross A. My understanding was that the. value was the total amount, not just - - - Q. Then, the total amount, according to the account, would you not agree, is 05335.20? Is that the sum you agreed. on with Mr. England? A. N o . Q. So, your account is incorrect when it says 05335.20? A. Plus $1600. Q. Why wasn't the. $1600 entered into the same item as the 05335.20 if your agreement with Mr. England right from the outset was that you would be buying one car for $7000? Why isn't it together? Can you explain that? A. I would only be .guessing because probably we had not completed the amount of advertising for the total amount. Q. But, Mr. Swidler, the total amount that you put into the account that you would be providing is $5335.20. Why did you add $1600 later? A. Because that was the total amount of car, my under- standing, $53 plus 16. ¢ But, the $1600 was added at the end of the. period called for by the agreement. Isn't that correct? A. If we had .performed our advertising for that amount then it would be, yes. Q. Answer my question, Mr. Swidler. The $1600 entry was - - - A. You a~uld probably ask my secretary better. ¢ I'm asking you. -45- 4 • • Harold Swidler - Cross A. I want to give you the right answer. I don't want to give - - - BY THE COURT: ¢ If you can' t answer it, say you can't. A. That's what I'm saying. BY MR. GEKAS Q. I'm going to ask you specific questions. The lease agreement for the Ambassador was ended December 20, 1971. Is that correct? Is it December 20, 1971? A. Yes . Q. And, doesn't it say on the top of the second full page that it shall be for 24 months? Is that what it says? Rental period shall be for 24 months. Is that what it says? Yes or no? A. Yes , That's what it says . ¢ Now, would that .take us from December of 1971 to what year for the 24 months? Would you say I was correct that hat took us to December of 1973? A. Yes . Q. So, then, this statement of account calls for this $1600 item to be entered on January the 4th, 1974. Isn't it correct that this item of $1600 was placed in the record, your own records, after the conclusion of the 24 months called for by this agreement? Yes or no? A. I really you would have to ask her. I can't answer you. Q. Mr. Swidler, when you first went in to see Roger Eng- land for that exchange of conversation took place about what -46- Harold Swidler - Cross is to be done with the car, did you bring statements with you at that time on the advertising that you had provided in 1976? A. I can't recall exactly. I brought something in to show him that we were exercising the option, that we only owe him $500. Q. You felt you were exercising the option? A. Yes . Q. So that you're saying then that you recognized that there was $1900 to be paid upon the exercise of the option either through advertising or cash. Is that correct? A. That the total amount included the $1900, yes. ¢ Well, why did you feel you had to exercise the option if your understanding with Harold England was at the outset that you were buying a car for $7000. and some dollars? What made you feel that you had to exercise the option? A. What made me feel that way? Q. Yes . A. We advertised for them constantly and this was just the procedure, that we continued advertising as much as they wanted us to. Q. But, you felt when you went to see Roger England that you were going to, in effect, negotiate with him to exercise the option by paying $500 cash and the rest in advertising. Correct? A. I felt when I went to .see Roger England to explain to -47- ~~.r ~. Harold Swidler - Cross Redirect him because I never met him, this was the first time I met Roger and I didn`t think hel~ew the entire transac- tion and I was going to explain to him what we're doing is advertising each month until they did not want to ad- vertise and I had explained we had been advertising for England Motors for nine or ten years but he had a one track mind, he said he wanted the car. Q. But, you felt you were exercising the option? A. I felt we were paying off the balance of whatever it was, whether you call it .option or what. MR. GEKAS: I have no further questions. THE COURT: Do you have anything else? MR. GRO5S: Just a few questions. REDIRECT EXAMINATION BY MR. GROSS : Q. Mr. Swidler, I show you Plaintiff's Exhibit No. 4, rich is a photocopy of some actual documents which I have present in court, that include an envelope from England Motors, Inc. with. a postmark of 25 March, a registration card with an expiration date of March 21, 1977 pertaining to the subject automobile and the Pennsylvania 1976 license plate sticker. MR. GEKAS: If the court please, we will stipulate that the title to the automobile in question was in England Leas- ing, Inc. MR. GROSS: Would you stipulate that these documents were sent to Mr. Swidler in that envelope dated 25 March, 1976? -48- i • Harold Swidler - Redirect MR. GEKAS: Yes. MR. GROSS: All right. THE COURT: So stipulated, and it is admitted. Do you have anything else? MR. GROSS: No, sir. THE COURT: I have a question. BY THE COURT: ¢ Mr. Swidler, in your first contract which expired in 1974, January of 1974 or December of 1973, you completed the transaction of exercising the option by entering a credit for $1600 for them in your records. Is that correct? A. Yes . Q. Now, in regard to ~e current contractor the last one, 1974, at the meeting you had with Roger England in March. of 1976, he said he wanted the car, you had not up until that time notified anyone that you were exercising the option or how you would pay the $1900 to exercise the option nor had you entered a credit in your records for $1900 for them, had you? You hadn't done any of those things? A. No. Not yet. ¢ And, it wasn't until Roger England said he wanted the car that you then said you would pay them what you owed them? A. Right . Q. And, at that point, you still owed them $500 of the $1900? A. Yes . THE COURT: All right. You may step down. We're going -49- .~_ i Evelyn Trimmer - Direct to recess now until 1:30. (Court recessed at 11:50 a.m.) (Court reconvened at 1:55 p.m.) E V E L Y N T R I M M E R, a witness on behalf of the plain- tiff, called as a witness, being first duly sworn accord- ing to law, testified as follows: DIRECT EXAMINATION BY MR. GROSS: Q. State your name, please. A. Evelyn Trimmer. Q. And, where do you live? A. 59 F Street., Carlisle. Q. And, by whom are you employed? A. W100, Incorporated. Q. In what capacity? A. Office manager. Q. Are you responsible for the keeping of the books, among your other duties? A. Yes, I am. Q. And, you also serve as Harold Swidler's secretary? A. Yes, I do. Q. And, do you maintain records as far as advertising is concerned? A. Yes , I do . Q. I show you Plaintiff's Exhibit No. 2. [n7e have had some testimony about that as a statement of account. Is that taken from your original records? -50- ~' !.. :~ • Evelyn Trimmer - Direct A. Yes, it is. Q. I have the a=iginal records here in court, too. Now, the ba]aice shown ~ that account, the Exhibit 2, what is that figure? A. $1112.49. Q. As of what date is that balance? A. As of February 29, 1976. Q. And, are there any entries that would ordinarily have been put on that account after that date? A. There should be one more entry for advertising, March 1 through 31. Q. And, what would the figure be? A. $244. ¢ And, normally, when are those entries made? A. They're made at the beginning of the new month. It would be April 1st. Q. Now, if you add $244 to the last balance, I believe you get $1356.49. What would that reflect? A. That would reflect that there was a balance built up on the account of England Motors in that amount which would be applied to the option of $1900. Q. Is that ~~ $1900 reflected on the account? A. No, it isn't. Q. Was the original $5520 figure reflected on~the account? A. Yes. On the first page. Q. And, what . that's in January 4th of 1974. Right? A. Yes . Q. Now, I would like to take you back on that page to -51- `;• ~ a • Evelyn Trimmer - Direct October 1st of 1974 where the balance is $5322.50. Do you see that? A. Uh huh. Yes. Q. And, then, on the very next line, there's an entry of 05335.20? A. Yes . Q. Mould you explain that entry? MR. GEKAS: Correction. You meant October of 1973. MR. GROSS: I stand corrected. You're right, Mr. Gekas. BY MR. GROSS: Q. October of 1973. A. Okay. The $5335.20 represents the leasing amount for the Ambassador. It doesn't include the optirn figure. MR. GEKAS: It what? I didn't hear you. MR. GROSS: I believe she said it doesn't include the option figure. MR. GEKAS: Okay. BYMR. GROSS: Q. In any event, do you know what might have occurred at about that time that caused you to put that figure on the ac~unt? A. I would have had a copy of the original lease to get the figure from. Q. Now, the balance on that line would reflect both the $5335.20 and the advertising services of $385. Is that right? A. That's correct. -52- • • Evelyn Trimmer - Direct Q. And, that leaves a balance marked as credit $372.30? A. That's correct. But, it shouldn't be a credit. Q. It shouldn't be a credit? A. No . Q. In any event, what does that $372.30 represent? Does that represent something which W100 owes England Motors or fice versa? A. The $372.30 would represent a figure that England Motors would owe us, W100. Q. And, continuing down through the $100 entry on January of 1974, those entries are for what? A. They're for advertising. Q. So, the figure of $1335.80, that would also then represent something which England owes W100. Is that right? A. That's right. Q. There has been some discussion here about the entry of the $1600 on the very next line. Can you explain that? A. That was the option purchase price or whatever you want to call it, for the Ambassador. It was the total amount owed for the car to get it off the books. MR. GEKAS: I didn't hear the answer. The voice trailed off. A. Okay. The $1600 represents the option. and then, of course, the car would be titled to W100. BY MR. GROSS: Q. And, when you say the option, you're referring to -53- i ~~~ .. • ~ Evelyn Trimmer - Direct what? Would that be the same leasing agreement that you referred to about the $5335.20? A. Yes, it would be. Q. Now, that leasing agreement is in evidence and the leasing agreement shows, I believe it shows an option price of $1500. Do you know do you have any can you recall any reason why this would be $1600? A. No, I don't, really. It probably was just my mis- take. Q. In any event, after you put on the books the $1600, the balance there shows cr. $264.20. Would that be an amount owed England or owed W100? MR. GEKAS: Which figure did you ask about? BY MR. GROSS: Q. $264.20, the balance on the line opposite the $1600. A. Okay. They would owe us. Now, wait. No. We would still owe them $264.20. Q. That would be the figure that you would actually owe England, $264.20? A. Right. ¢ The next eriry for ash account balance due $214.22. what would that be? A. We had an operating account set up for England Motors. It was a cash account which they were supposed to have paid. That was my understanding anyway. But, we had just changed it over to the trade account to get it off the books, trade instead of pay cash. -54- . ! a~ J • Evelyn Trimmer - Direct Q. Then, you show a balance of $49.98 and that would be still an amount that you would owe England. Is that correct? A. That's correct. Q. The next entry is $5520.48? A. Correct. Q. And, leaving a balance of $5570.46 and that would be a balance that W100 would owe - - - MR. GEKAS: It's a totally leading question. BY MR. GROSS: Q. What does it represent? A. It represents a figure that we owe England Motors. ¢ Now, the subsequent entires on that page starting with $336 and ending with $200, what would those be? A. The billing for advertising. Q Did they refer to the periods of time shown on the account? A. Yes. Q. And, the balance indicated at the end of that page, $4889.46. What did that represent? A. That we still owed them that much money. Q. That's c~'ried onto the top of page 2 and you have five more entries which continue to reduce the balance down to $3753.46. Are those all entries for advertising services? A. Yes, they are. ¢ And, are they for the dates indicated? A. Yes . -55- r u • Evelyn Trimmer - Direct Q. And, then, there's an item which says invace $112.12. Could you explain that? A. Okay. That's a bill that we had received for re- pairs on the car and which car, I'm not sure. Q. But, in any event, it was something owed to England? A. Correct. ¢ And, so, you credited the amount owing to England? A. Right. Q. Are the other entries on that page consistent with the testimony you have just given showing advertising ser- vices rendered and two other invoices from England Motors? A. Yes . Q. That brings it down to $1480.07 which goes to page 3 and I see that the first two items are advertising items and then another invoice. Is there anything different about the entries on that page? A. N o . 0. Could you go down to the date of October. What year would that be? A. October of 1975. Q. Just prior to that October 1st entry, the balance shown is $333.51. Do you see that? A. Yes . Q. And, would that be an amount that's owed to England or owed by England? A. We owed that amount to England. -56- :, • ~ Evelyn Trimmer - Direct Q. The entry of Octoher 1st brings the balance down, according to your record, to $87.51? A. Yes . Q. What happened with the next entry on November 1st? A. The total amount that we owed England had been paid off and it reverted to an accounts receivable that England owed W100. Q. And, on the other entries on that page, are they con- ~stent with the previous testimony? A. Yes . Q Now, was this statement of account utilized only in- ternally in W100 or was some other use made of it? A. A copy of the statement went out to England Motors each month. Q. And, when you say a copy of the statement went out, you mean with the entries up to the date it would go out. Is that it? A. Up to and including the total previous month. Q. And, approximately when in each month would it go out? A. Between the 1st and the 10th. Q. And, who sent it out? A. I did. ¢ And, you mailed it to England Motors? A. Yes. Q. Did you mail anything else to England Motors? A. They would get a notarized statement if they had coop advertising for the previous month and they would get an -57- J F" • C Evelyn Trimmer - Direct affidavit with times. MR. GEKA5: If the court please, I want to make sure that the judge understands that I have my continuing objec- tion as to this testimony. THE COURT: Continue. MR. GROSS: Mr. Gekas, I don't have an extra copy of what I'm going to offer. I have the original here. MR. GEKAS: Let me look at them a moment. MR. GROSS: All right. These are not the originals. These are our office copies. MR. GEKAS: All right. BY MR. GROSS: Q. I show you what has been identified as Plaintiff's Exhibit No. 5. MR. GROSS: If the court please, I put a number of docu- ments together with a clip. It'll be easier that way. BY MR. GROSS: Q. I show you Plaintiff's Exhibit No. 5. I would like you, Mrs. Trimmer, to notice that in this exhibit we have a number of sheets approximately 8-1/2 x 11 and a number of longer sheets. What do the smaller sheets represent? A. The smaller sheets represent the actual billing for any given month, the total number of spots that England Motors ran with the station, the total bill and if it was coop adver- tising, it was so marked and marked paid in full. -58- f ' , , • Evel n Trimmer - Direct Q. Now, would you look through those center sheets and tell me for what months that exhibit includes? A. From September 1, 1975 through March 31, 1976. Q. You also have with you similar copies of similar documents for the previous periods? A. Yes . Q. Now, look at the longer sheets and tell us what that is. A. That's an affidavit of performance which we are re- quested to give to our accounts that have coop advertising. Q. And, what months do those sheets cover? A. September of 1975 through March 31, 1976. Q. And, do you also have similar sheets pertaining to prior months? A. Yes, I do. Q. And, do you have, in fact, sheets relating to all of the entries on the statement of account here with you? A. Yes, I do. Q. Now, who prepares the documents that are identified as Plaintiff's Exhibit No. 5? A. I prepare the notarized statement and have that ~arized. The affidavits of performance are prepared by my assistant, Jennie Roney, and the times that are found on the affidavit are taken directly from the station program log. Q. And, does she do that under your supervision? A. Yes . -59- ,'' ~, ~ ~ Evelyn Trimmer - Direct Q. And, when you say the station programming log, fat are you referring to? A. Our broadcast log which lists all our commercials and other things we do like news and weather that have to be kept. Q. When you say have to be kept, is this an FCC regu- lation? A. Yes . Q. And, does it, in fact, have there your station broad- cast logs for all of the periods in questions? A. Yes . Q. And, is it not true that these broadcast logs are separate sheets for each hour or each day? A. Yes . ¢ Now, I notice that "paid" is marked on many of these documents. Would you explain why "paid" is marked on some and not on all of the documents? A. "Paid" is marked on most of my copies, not all of them, because I simply did not mark my copies paid. I knew they were paid. I marked the ones that went out to England Motors. Q. These are not necessarily copies of the originals ht of your own copies? A. That's correct. Q Is it your testimony, then, that the originals of all of the documents in Plaintiff's Exhibit 5 were sent to England Motors? -60- Evelyn Trimmer - Direct A. Yes . Q. And, when were they sent? A. Between the 1st and 10th of_ each month. Q. Is it your testimony that they accurately reflect the records of W100 as far as the protracted services rendered? A. They definitely do. Q. Were these all sent as one package or separately dur- ing the month? A. A copy of each of the papers that we were talking about is sent each month.. They get a statement of account, a notarized statement and an affidavit in the same envelope. Q. And, there has been some question about the adver- tising services performed in the first part of 1976. It's your testimony that these statements went out each month during that period of time? A. Yes, they did. Q. You have heard some testimony here as to the problem that arose at the end of March between Mr. Swidler and Mr. England. I would like you to tell us what do the broadcast records of the company reflect as far as when you actually terminated running commercials for England Motors. A. I did not terminate any advertising for England Motors. until the beginning of April. Q Is that when you were told toterminate it? A. Yes, I was. Q You mentioned something about cooperative advertis- ing. Would you explain that for us? -61- ~ ;' •_,; • ~ Evelyn Trimmer - Direct A. Cooperative advertising is when a dealer has a franchise with a larger company, such as England Motors with American Motors, they can get money back from the main company by doing advertising for the main company with England Motors as a dealer. 0. Would all of your advertising be of that type for England Motors? A. It wasn't always coop advertising but in most cases, it was. Q. What companies would it be coop advertising for? A. Either American Motors or Jeep. Q. Do you know why you prepared documents like that for coop advertising? Do you know whether you received any in- structions to do so? `( A. Yes. Mr. Swidler told me to - - - MR. ~ ~EKAS: Objection. THE COURT: Sustained. BY MR. GROSS: Q. How long have you been with W100? A. Ten years. Q. And, were you responsible for mailing out the state- ments of account through the entire period shown on the copy that's in the record here? A. Yes, I was. Q. During that time, did England Motors ever make a cash payment? A. N o . -62- • Evelyn Trimmer - Direct ~ For any of the advertising? A. No . Q. Did you ever send them a bill indicating they should make a cash payment? A. Not indicating that thye should make a cash pay- ment. The third page of my statement of account does re- flect accounts receivable, like I said before. Q. But, with that accounts receivable, you sent them a statement each month marked paid? A• That's correct. Q. Who opens the mail at W100? A• I do . Q. Did you ever get any communication from England Motors or England Leasing requesting the return - - - MR. GEKAS: The question should end there. Did you re- ceive anything? What was it, if anything? THE COURT: That's one way to put it. BY .MR . GROSS : Q. In connection dod you receive from England Mo- tors or England Leasing any communication that you can recall? A. The only thing I recall receiving from England Motors was the registration card and the sticker .for 1976. Q. Is that the only thing? A• To the best of my knowledge, yes, it is. -63- ~. • • Evel n Trimmer - Direct Cross Q. Did you ever receive from England Motors or Eng- end Leasing a request that you return - - _ MR. GEKAS: Objection. .MR. GROSS: I think the witness has already - - _ E COURT: Wait until he finishes the question. MR. GROSS: Q Did you ever receive a request requesting a return of the vehicle? A. No . Q. Did you ever receive any indication from England Motors that they wanted to pay the balance due on the ad- vertising services? A. No . Q. Did you ever receive from England P4otors or England Leasing any request for a cash payment on the vehicle? A. No . Q. Did England Motors or England Leasing ever communi- cate with you in any way raising any objections to the docu- ments you sent them? A. No . MR. GROSS: That's a.ll. THE COURT: Cross examine. CROSS EXAMINATION B~' MR . GEKAS Q. Now, Mrs. Trimmer, on page. , . on the last page of that statement of account where it reflects October 1st, pre- sumably that's 1975, you testified that the last item, $87.51, -64- dy r_; ; . Evelyn Trimmer - Cross showed to you that they had reached the end of the bal- ance due on the price of the automobile, Isn't that cor- rect? A• Yes . Q. And, the prise of the automobile that we're talk- ing about was as reflected on page 1 on the entry that you made, 05520,48. Isn't that correct? A• That was the leasing amount, yes. Q. And, you put down that figure, $5520.48, pursuant to the lease amount for 24 months. Isn't that correct? A• That's correct. Q. And, you were considering at the end of your account- ing that $87.51, that that had been liquidated. Is that cor- rect? A• With the next entry, it would have been, yes. Q. In the previous automobile situation, the Ambassador, you entered the $1600 by way of exercising the option balance. Isn't that correct? Q. Yes . Q. But, you entered nothing for the $1900 on the balance due under the option forthe second automobile. Isn't that correct? A. That's correct, Q. That $5520.48 figure, did someone tell you what that. amount was going to be? A• No• I had a copy of the lease. -65- ~ ,p, ~- • • Evelyn Trimmer - Cross Q. And, who gave you the lease? A. It. was either sent to the station or brought in by Mr. Swidler. Q. And, you were responsible to take care of this for Mr. Swidler? A• Correct. Q. Had he given you authorization to do what was nec- cessary in these transactions? A. That's correct. Q. Getting back to the Ambassador situation, did Mr. Swidler tell you to exercise that option? A. No. But, I knew it had to be exercised because we were going to have possession of the car and I put the $1600 in there simply because I knew there was another car coming up. It had to be marked up before I could put another car on. Q. And, you were following the lease agreement. Is that correct? A. Yes . Q. Do you recall why the discrepancy between the $1500 and the $1600 that you entered there? A. No, I don't, really. ¢ Could it have been, if I could refresh your recollec- tion, an assertion by someone from England Leasing that the sales tax and other charges amounted to $100 in order to transfer title? Does that sound familiar to you? A. No. I don't really recall that. -66- ! , Evelyn Trimmer - Cross Q. So, you don't know whether it was -$1500 plus $100 or $1600 that you entered, but you knew it was to exer- cise the option. Is that correct? A. That's correct. Q. You have stated that you did that on your own be- orb on direct testimony? A. What's that? Q. That you entered the $1600 as the exercise of the option on your own and you didn't recall why you put $1600 rather than $1500. Is that correct? A. That's correct. Q. After you had reached down to $87 and you considered that first amount, that trade amount over with, I notice that in these invoices that you sent to England Motors, you did not mark them paid. Is that correct? A. Which onvoice are you referring to? Q. The last ones in 1976 after January the 1st. A. The one for February 1st was marked paid and, like I said before, I didn't necessarily mark my statement paid because I knew it was paid. Theirs was marked paid, the one bat they received in the office. Q. But, you don't remember of your own recollection whether you marked them paid? A. I'm sure I did. Q. You're sure you did not? A. Did . Q. But, these don't reflect them and why is that? -67- C ~: • Evelyn Trimmer - Cross A. Sometimes I just don't bother to mark mine. I know they're paid. Q. By the credit for advertising? A. No. I know they're paid because we're exercising the option to buy the car. BY THE COURT: Q. Let's get that straight. You said you didn't mark your invoices paid but you marked theirs paid? A. That's correct.. Sometimes, not always. THE COURT: All right. Go ahead. MR. GROSS: What was sometimes? MR. GEKAS: I'm examining. THE COURT: Go ahead. BY MR. GEKAS: Q. The one for the .second automobile, did you enter an item in exercise of thecption as you did on the first one when you entered the $1600? That's what you did on the Ambassador. Is that correct? A. Yes . Q. Did you ever see an order from England Motors for advertisement after January the 1st of 1976, any authoriza- tion or order from England Motors for advertising? A. No. I didn't see an order. It was handled the same as it had been previous to 1976, and that was through Dir. Swidler. Q. Mr. Swidler told you to keep going with this arrange- ment? -68- /~ • Evelyn Trimmer - Cross A. He would tell me what copy they wanted to run. No one had told me not to run the advertising, Q. You never dealt with the orders directly from the customer. Is that what you're saying? A. Not in this. case, no. Q. So, to your knwoeldge, England Motors, directly through you, never ordered any advertisement through you? A. No, they didn't, through me. Q. Are you saying that this accounting is wrong when it says credits on the first page after the .05335 entry for the first value of the first trade-in of the car? Did you say in answer to Mr. Gross's question that that's incorrect to show credit? A. It shouldn't be a credit figure, no. The figures are correct Q. Where did you finally fix this up or correct all this? If those figures are incorrect, then the next six or seven items are wrong. MR. GROSS: Objection. She said the figures were cor- rect. THE COURT: She said the figures were correct but it shouldn't have been labelled a credit. BY MR. GEKAS: Q. I'm asking dial you correct that in any way or just leave it there and calculate it as if it were entered cor- rectly? A. The credit, "cr." should have been erased. It wasn't - -69- ,'9 a • Evelyn Trimmer - Cross erased because if you go by the figure, it's correct. Q. Did you then treat it as if the cr, was never entered there? A• I just didn't erase it off. Q. Did you treat the figures as if cr. had never been there? A. Correct. Q. Do you work directly with the bookkeeper of the or- ganization, the accountant? A. I don't work. directly with him, no. I turn over my records but I don't sit beside him, Q Do you submit to them the records of income and ex- penses? A. Yes . `~ 0. Did you give them an expense for an automobile - - - V MR, GR S O S. Objection. THE COURT; On what grounds? PQR. GROSS: I think any testimoy along this line is irrelevant to any issue in this proceeding again for the same reason we stated before. There's nothing as far as treatment forincome tax purposes or any other purpose that's relevant to the issue here, THE COURT: I ruled on that before. This is cross exami- nation and it's relevant. [nhi.ld you answer the. question? A. Yes . BY MR. GEKAS: Q. And, the kind of expense that you gave them for the -70- '~ • ~ Eve~_Trimmer - Cross Redirect 1974 AMX, for instance, did you expense the total amount of the advertising given for England Motors? MR. GROSS: May I have a continuing objection to this testimony? THE COURT: Yes, BY MR. GEKAS: Q. Do you understand the question? A. I don't know what I'm supposed to do. ¢ Answer the question. THE COURT: If you remember the question, answer it. A. What was the question? BY MR. GEKAS: Q. When you report the income and expenses for a monthly period or quarterly, whatever~ou do, to your accountants, when you did so in the period covered by the 1974 AMX account, did you report to them that you had purcahsed a car and were depreciating it or did you give them the total amount paid for the use of the car as an expense? A. The total amount paid through advertising for the car. MR. GEKAS: No further questions. REDIRECT EXAMINATION BY MR. GROSS: Q. Mrs. Trimmer, first of all_, I want to clear up one matter. I believe you were asked about the bills that were submitted to England Motors each month and there was refer- ence to the fact that there were both original copies that -71- a ~ ~ Evelyn Trimmer - Redirect were sent to England Motors and copies which you retain in your possession, and in answer to the question of whe- ther they were marked paid, you said, sometimes, not always. I would like to know whether that refers to the original bills or to the copies. A. Okay. Sometimes, not always, refers to my copy of the original, not the ones that were sent to England Motors. Q. And, is it your testimony that those original bills were marked paid? A. Yes . Q. I want you to just look at the entry of the $1600 figure on January 4, 1974 and look also at the third page of the statement of account, and I want to ask you if you find anything onconsistent with the way the entries were made there between those two situations. A. On page 1, I put in the option price of the Ambassa- dor before the advertising was run. On page 3, I was allow- ing the advertising to turn into an accounts receivable for England Motors and when it would reach $1900, just mark it off as an option. Q. I want you to look at page 1. When you put in the $1600 figure, I believe your testimony was there was a bal- ance of $1335.80. What would that balance reflect? A. $1335.80 reflected the amount of advertising we did for England Motors. Q. So, - - - A. I was incorrect in what I just said. ¢ Would you explain it again? -72- .~ • Evelyn Trimmer - Redirect Recross MR. GEKAS: Yes. A. On page 1, the $1600 that was entered for the Ambassador was almost at the end of the total amount due for the option. That amount had been. accrued by their advertising and was owed to the station. I did the same thing on the third page. Q. On the third page, when would the $1900 credit then be put in if you want it to be consistent with the first page? A. I guess about a month before the $1900 figure would be arrived at. MR. GROSS: That's all. Thank you. RECROSS EXAMINATION BY MR. GEKAS: Q. But, you didn't do it. Is that correct? A. It didn't reach $1900. Q And, nobody instructed you to do it? A. It was my understanding that's the way it would be done. Q. But, in the beginning on the $1600 item, Mrs. Trim- mer, you could have, cording to what you did on the second automobile, simply go on until you built up another $1600 by way of exercising the option because that's what you said you did on the second one. Is that correct? A. You'll have to repeat that. I didn't understand. Q. Didn't you say on the second car you were exercising the option by continuing to give advertisement for the $1900? -73- • • Evelyn Trimmer - Recross Didn't you say that? A. Yes. But, it was advertising that England Motors wanted. Q. I understand that. But, you're saying that the ex- ercise of the option was done by you or your organization through continuing to give credit for advertisement. A. By continuing to give advertising, yes. Q. Why didn't you do that in the first one? Why couldn't you have continued to give credit there rather than enter the option amount? A. It had to be taken off the books. I was having an- t~,ner car come in . Q. So, the $1900 had to be taken off the books, too, but you didn't do that? A. It doesn't have to be taken off yet, MR. GEKAS: No further questions. THE COURT: You may step down. NMR. GROSS: Call Jeffrey Snyder. MR. GEKAS: I would like to have an offer. MR. GROSS: Your Honor, I offer this witness on the question of damages. It's my understanding in a replevin action, that there are certain kinds of damages recoverable by the plaintiff. In this cam, it's a question of the rea- sonable value of loss of use of the vehicle in question. I have asked Mr. Snyder to determine what the cost of rental vehicles and he is prepared to - - - THE COURT: What's his expertise? -74- s u ;; MR. GROSS: No expertise, Your Honor. Only that he is prepared to relate that he has contacted several rental agencies in this area and has been told that vehicles are available at certain rates. THE COURT: Isn't that hearsay? MR. GROSS: I don't believe so, Your Honor, because it's not the truth or veracity of the statement in question. It's merely what was given to us as far as rental rates. The ~tomobile agent might be lying but what he tells us - - - THE COURT: How can he cross examine? MR. GEKAS: Yes. MR. GROSS: I don't think it's a question of the truth or veracity of the statement that`s made to Mr. Snyder. THE COURT: There's no question in my mind that it's hearsay. MR. GEKAS: Totally objectionable. THE COURT: You can call a dealer to establish it. MR. GROSS: Your Honor, I have some offers to make. THE COURT: All right. MR. GROSS: First of all, I would like to offer the testimony of Roger England given at the prior hearing. I would like all the testimony that was given on direct. exami- nation, the testimony that begins on the bottom or page 35 and continues through page 40. I would like to offer it into evidence and I would like it to be - - - THE COURT: Is this the only item you wish to offer? MR. GROSS: No. THE COURT: How many do you have? -75- d 'i * • MR. GROSS: This is the only transcript, Your Honor. THE COURT: The only offer from the transcript? MR. GROSS: Yes. THE COURT: 35 to 40? MR. GROSS: Yes. THE COURT: What other offers do you have? MR. GROSS: Only with respect to pleadings and exhibits. THE COURT: Make your other offers then we'll recess and you can read this. MR. GROSS: I was going to offer it to be transcribed as if it were read here rather than waste the time reading it. I would also offer exhibits 1 through 5 into evidence. THE COURT: Any objection? MR. GEKAS: Objection to all of those that I objected to at the time as to relevancy subject to my continuing objection. THE COURT: They are admitted subject to his continuing objection. MR. GROSS: There are sever averments of the Complaint that were admitted. Those are 1, 2, 3, 4, 5, 6 and 19 and I would offer the paragraph in the Complaint and the corre- sponding paragraph in the Answer into evidence. THE COURT: Any objection? MR. GEKAS: Which paragraphs? MR. GROSS; 1, 2, 3, 4, 5, 6 and 19. THE COURT: By your Answer, you have admitted them. You may check your Answer. MR. GEKAS: Yes. Okay. THE COURT: They are admitted. -76- COMPLAINT: 1. Plaintiff is WI00, Inc., a Pennsylvania corporation with its principal place of business located at 180 York Road, Carlisle, Cumberland County, Pennsylvania. ANSWER: 1. Admitted, COMPLAINT: 2. Defendant England Motors, Inc, is a Penn- sylvania corporation with a place of business located at 425 South Cameron Street, Harrisburg, Dauphin County, Pennsylvania. ANSWER: 2. Admitted. COMPLAINT; 3. Defendant England Leasing, Inc, is a Penn- sylvania corporation with a place of business located at 425 South Cameron Street, Harrisburg, Dauphin County, Pennsyl- vania. ANSWER: 3, Admitted, COMPLAINT: 4. The property to be replevied is a 1974 Javelin, AMX coupe automobile, manufacturer's serial number A4C798Z217707, having a value of $4,000,00 and, on information and belief, it is alleged that its present location is 425 South Cameron Street, Harrisburg, Pennsylvania. ANSWER: 4. Admitted. COMPLAINT: 5. Plaintiff WI00, Inc, is engaged in the business of operating radio station WI00 in Carlisle, Penn- sylvania, and, in the course of this business, Plaintiff sells radio advertising to commercial accounts and others. ANS@JER: 5, Admitted. COMPLAINT: 6. Defendant England Motors, Inc, is engaged in the business of selling new and used automobiles, particu- larly products of American Motors. ANSWER: 6. Admitted. -77- ,- P ' `, • . COMPLAINT: 19. At all times since teh taking of the vehicle from the possession of the Plaintiff on March 27, 1976, the Plaintiff believes, and therefore al7a~es, that the vehicle has been retained in the custody and control of the Defendants or their agents and, although demand for the return of the vehicle has been made, the Defendants refuse to return the vehicle to the possession of the Plaintiff. ANSWER: 19. Admitted. MR, GROSS: There are some additionalpleadings, para- graph 7, 8, 10, 11, 12, 14, 16 and 18, These were admitted in part and denied in part and I would offer the pleadings plus that part admitted into evidence and as to all of these pleadings, I would like them to be transcribed as if read here before us. THE COURT: All right. Now, we'll have to limit that. Paragraph 7, the first part down to it is denied is admitted. In paragraph 8, the first two sentences are admitted. The first sentence of paragraph 10, admitted. MR. GROSS: First two sentences, I believe. THE COURT: Yes. The first'hao sentences of paragraph 10. MR. GROSS: The same with paragraph 11, I believe, THE COURT: The first two sentences of paragraph ll. The .first two sentences of paragraph 12. The first three sentences of paragraph 14 are admitted, MR. GROSS: Two sentences in paragraph 16. THE COURT: The first two sentences of paragraph 16, The first three sentences in paragraph 18 are admitted. Any- thing else you want to admit now? -78- MR. GROSS: No, Your Honor. That's all we have now. ANSWER: 7. It is admitted that the Defendant, England Leasing, Inc., is engaged in the business of leasing automo- biles. (There being no such Defendant named England Motors Leasing, Inc., it is assumed that the Plaintiff intended to describe the Defendant, England Leasing, Inc., in its aver- men t . ) 8. It is admitted that the Plaintiff entered into an oral agreement with the Defendant, England Motors, Inc., on or about January 1, 1974. 10. The averment in paragraph 10 is admitted only inso- far as it purports to set forth that radio advertising was broadcast and charged to the Defendant, England Motors, Inc. 11. It is admitted that the sum of Five Thousand Five Hundred Twenty Dollars and Forty-Eight lents ($5,520.48) was the total sum which was due on the lease and that it was set forth as a credit on the aforementioned statement. 12. It is admitted that the aforementioned statement of account (Plaintiff's Complaint Exhibit "B") does reflect a prior credit balance of Forty-Nine Dollars and Ninety-Eight Cents ($49.98) and various invoices posted as credit entries. 14. It is admitted that there were prior transactions wherein radio advertising was purchased by the .Defendant, England Motors, Inc., and automobiles were leased and finally purchased by the Plaintiff from England Motors, Inc, and England Leasing, Inc. It is further admitted that one of those trans- actions (the Plaintiff's Exhibit "C") was similar in its incep- fon to the transaction which forms the basis for this cause of action. -79- ` • 16. It is admitted that, as to those statements re- ceived, no objection or question concerning such entries as were made therein was made by the Defendant, England Motors, Inc., there being no need to do so. MR. GEKAS: If the court please, I object to the in- troduction of the prior testimony for the reasons I outlined. THE COURT: I want to look at it. I'm going to take a recess now and look at it myself. You might look it over. Court is in recess. (Court recessed at 2:50 p,m,) (Court reconvened at 3:00 p,m,) THE COURT: There was an offer to page 35 to 40 of the transcript of April 19, 1976, the testimony of Roger England, offered into evidence. What is your position? MR. GEKAS: I don't fully understand, if the court please, f he's offering notes of testimony from a prior hearing. There's no witness that is missing and he's trying to - - - THE COURT: But, it's prior testimony which is under oath and if you have no other objection, it's admissible here and it will have to be as on cross examination because he's an officer of an adverse party. You offer it as on cross examination? MR. GROSS: Yes, sir. And, of course, wt think that it's also acceptable because they are admissions of an adverse party, MR. GEKAS: I won't object, I mean, I object, but - - - THE COURT: It also goes to your prior objection on testi- m ony as to an oral statement which we have reserved ruling on. -80- MR. GEKAS: That's right. THE COURT: With that, you rest? MR. GROSS: Yes, sir. (Testimony, pages 35 through 40, hearing held on April 19, 1976) "R O G E R E N G L A N D, a witness on behalf of the de- fendant, called as a witness, being first duly sworn according to law, testified as follows: DIRECT EXAMINATION BY MR. BERNSTEIN: Q• Would you state your full name, please? A. Roger George England. Q. And, what is your address, Mr. England? A. 265 Deerfield Road, Camp Hill. Q. Mr. England, what is your position with England Leasing Company? A. I'm just an officer of the company, general sales manager, new and used vehicles and an officer of the leas- ing company. Q. What position? What title? A. General manager of the leasing company. Q Mr. England, when dial you take your present posi- tion? A. January the 25th 26th. Q. Of 1976? A• Right . Q. When were you first made aware of the lease that is in question here? -81- e A• I first became aware of the lease when the bank called me to get the pay-off on the automobile, ¢ What month was that? A• They called me, it was around , . it was the day before I called Mr. Swidler, I can't recall the exact date, Q. January, February or March? A• Well, it would have been in March. when Mr..Swidler and I had our conversation, Q. What was the purpose of the bank's calling you? A• Well, we had not made any leasing payment since the end of the lease as our lease at England Leasing termi- nated on January 1st. So, at that time, we had stopped making payments on the vehicle just automatically. The bank, of course, wanted the pay-off, so, they called. I got hold of Mr, Swidler and asked him tooame in and make arrangements to pay. The only thing I knew was my leasing agreement. I had no knowledge. of any oral agreement of any kind. When Mr. Swidler arrived at my office, it took me two days to get hold of him and get him in. He, of course, the first thing said, "You don't understand any- thing about the lease, so, here's where we stand. Here's my bill, here's $500. I want the car." And, I said, "I only have a piece of paper here. That's a lease agreement due January 1st, $1900 or the car." Hes~id, "You can't have the car." He said, "You don't understand any of this." He said, 1°I'm going to see my attorney." And, that's where we are now. -82- Q. Did you, during that meeting, tell him you intended to pick up the car? A• I told him I would sheriff the car and immedi- ately contacted my attorney to make arrangements to sheriff the car. ¢ Have you, subsequent to the meeting you had with Mr. Swidler, have you l~'ned of any oral agreement that existed? A• Yes, I did learn he had an oral agreement with Mr. A. H. England. Q. What were the terms of that agreement? A. The terms of the agreement - - - MR. GROSS: Objection, Your Honor. Ibelieve if this gentleman wants to present testimony and enumerate details o-1 behalf of this agreement, he should have Mr. A• H. England here, THE COURT: I sustain the objection. MR. BERNSTEIN: Your Honor, Mr. Swidler has, of course, raised this oral agreement. It seems to me that once raised, the terms are applicable. THE COURT: Well, but then why don't you call Mr. A. H. England in to say what the terms are? That's what he's objecting to and it's a question of whether he was speaking for the company or not. So far, your testimony confirms what Mr. Swidler said here, there was an agreement with Mr. A. H. England and he's the only one who knows what it was first hand. -83- • ~ BY MR. BERNSTEIN: Q. Mr. England, when you went to take the car, did you take someone with you? A. Yes . Q• Who went with you? A. Stan Bobula. Q. An employee of the corporation? A. No . Q. Who is Mr. Bobula? A• Mr. Bobula is a gentleman that owns a business but he does occasionally have CCNB pick up automobiles when they're overdue. Q. And, did you find the car in the driveway? THE COURT: Well, there's no dispute that they found the car. BY MR. BERNSTEIN : ¢ And, was the. car locked? A. No. It was not locked. Q And, did you have a set of keys? A. Yes . Q. So, you used those keys to remove the. car? A. Right . Q. Thank you. Mr. England, would you be aware of ad- vertising bills coming in to England Motors? A. Normally, any advertising bill would have to be authorized by the general sales manager. Q Are you aware, then, of some of these bills from WI00? A. N o . -84- ; : ~. • ~ Q. Why not? A• Principally because our computer was messed up at the time. Our billing system was messed up at the time. We weren't cutting any checks and this is what I was going by and when I got the call from the bank, that's when I first became aware that there was even any car out on an Y tYPe of agreement with WI00. Q. You actually didn't know there was a vehicle being leased? A• Not until the bank called me and I looked at the lease. " MR. GEKAS: If the court plea, I have to make a motion for a non-suit on several different bases. A non-suit first as to England Motors, Inc. This is a Complaint in Replevin where the object to the cause of action is to retrieve an automobile. England Motors' part in this is a simple con- tractural matter in which we admit nothing but we do acknow- ledge that there is a contractural dispute between the plain- tiff and England Motors as to the cost of advertisement. Therefore, we say that England Motors should be stricken from the Complaint and that a non-suit be entered with re- spent to England Motors, Inc. MR. GROSS: We believe that England Motors, Inc, is the agency with whom we have made the agreement upon which we claim a right to possession of the vehicle and there is evi- Bence that England Motors, Inc, took the vehicle. The ultimate decision as to whether it had the right to take the vehicle -85- • ~ must await the decision of the court, But, certainly no non-suit must be entered because there is evidence on the record that it was a wrongful taking, that it was cont the terms of the understandin rary to g between the parties. THE COURT: What is your second motion? MR. GEKAS: Now I move for a non-suit as to England Leas- ing, Inc, I repeat my objection as to he oral understand- ings and the fact that the parol evidence rull would elimi- nate anything except the agreement and if I am correct on that, that leaves the basic agreement and there is no evi- Bence at all that the option under that agreement was exer- cised, none whatsoever, not one scintilla of evidence. The agreement clearly calls for, at the end of the agreement, that the option be exercised by the payment of $1900. That was never, never accomplished, never any item in the Complaint even averring that that was done, no evidence to support the non-existing averment. Therefore, the case has not been made out because they have not shown compliance with the agreement to give them the right to possession of the automobile in the first place, To top it off, the the court please, the testi- mony that is now in the record pursuant to the prior notes of testimony has testimony from his own witness, which would be Roger England, now, which repeats that this was a lease agreement that ended January 1st. and he wants $1900 in cash. That;s part of his own case, so that the testimony of his own case is so contradictory and so inept with respect to making out the cause of action that an involuntary non-suit is appropro as to England Leasing as well. -86- t ~ MR. GROSS; I m not sure it's appropro in any case tried without a jury, but I don't believ pro er e it would be P in this ca~• Your Honor because England Leasing, Inc• Is the record owner of the vehicle fore the The question be- court is the right to possession and owner of the vehicle. ship Again, the validity of the contract is of course, in issue and that's going to be decided by the court. But, certainly England Leasing, Inc part Is a proper y and one against whom the judgment of this court should lie and I believe England Leasing, Inc.' await determination on s position should the merits. - THE COURT: We'll grant the motion for an ' non suit Involuntary on the basis that the option was not exercis required by the co ed as ntract; further, England Motors was not a party to the lease agreement and a remed lies in Y against them assumpsit. (Hearing adjourned at 3;05 p•me) * ~ I hereby certify that the are contained full proceedings and evidence by me on y and accurately in the notes taken correct transcriptnthereof,and that this co a Py is Official Court Stenogra pher The foregoing record of the matter is hereby a Proceedings in the pproved and directed above f//~/y to be filed . Judge / r (~[ ~ ~~~~,~~ June 25, 1976 -.. -87- ,~ ;. "', "~.° .~ . t..t': ` ~'~ : ',, v ~4C~ r : 7 J ~I .-a °t~ '2.'ka .,_ _ Y,'~ ..~. ~„ K :' tJ f t' .9°' ~ ~ 7 ~.~ _~ ~ i IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW wloo, INC., Plaintiff vs ENGLAND MOTORS, INC. and ENGLAND LEASING, INC., Defendants No. 1178 Civil Term, 1976 REPLEVIN ORDER OF COURT AND NOw, June 17, 1976, the motion for an involuntary non-suit in favor of the defendants is granted on the basis that the option was not exercised as required by the contra t; further, England Motors was not a party to the lease agree- ment and a remedy against them lies in assumpsit. BY THE COURT: George W. Gekas, Esq. William M. Gross, Esq. J. c ek ~ D -i m r d^ ~.. n c n oho ~ m ..~ Z v ~ ~ Z ~. '~ `+ m -v 0 3 O Z O D -c ~o m n 0 v m d O m O • ~ WI00, INC., Plaintiff VS. ENGLAND MOTORS, INC. and ENGLAND LEASING , IiJC . , Defendants IN THE COURT OF CONMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA . N0. 1175 CIVIL TEP~M, 1976 REPLEVIN PLAINTIFF'S EXCEPTIONS TO DECISION OF TRIAL J'JDGE AND NOW, July 2~ 1976, pursuant to Pa. R.C.P. 1038, in this action tried without a jury the Plaintiff files the following excep- tions to the decision of the Court: ,~'l. The trial judge erred in finding that the option was not exercised as required by the contract. 2. The trial judge erred in finding that England Motors was not a party to the lease agreement and that a remedy against them lies only in assumpsit. ,' 3. The trial judge erred in granting the Defendant's motion for involuntary non-suit. 4. The trial judge erred in overruling Defendant's objection to a question asked of the witness Harold Swidler (N.T. 27) as follows: "Did you instruct them to depreciate the amounts that you were using for advertising to the credit of England Motors?°' 5. The trial judge erred in overruling Defendant's objection to a question asked of the witness Harold Swidler (N.T. 27,28), as follows: "In your business, did you take as an expense the amount that was chargeable for this automobile?" 1 . • • 6. The trial judge erred in sustaining an objection to a question asked of the witness Evelyn Trimmer (N.T. 62) as follows: "Do you know why you prepared documents like that for co-op advertising? Do you know whether you received any instructions to do so?" 7. The trial judge erred in overruling Defendant's objection to a question asked of the witness Evelyn Trimmer (N.T. 70), as follows: - -" and other "Did you give them an expense for an automobile - questions following thereupon continuing on Pgs. 70, 71. 8. The trial judge erred in refusing to allow the testimony of Jeffrey Snyder called as a witness for the Plaintiff (N.T. 74,75). I~Jilliam I~~. ross Krank, Gross & Casper Suite H, 1801 North Front Street Harrisburg, Pennsylvania 17102 Attorneys for Plaintiff -2- 1 WI00 , INC . , ____ Plaintiff _ ~~. ENG_LsAN_L?--M~TOBS~_IDT~__~.nd------------ In the Court of Common Pleas of Cumberland County, Pennsyl~~ania v~,. _1178 _CIVIL___________ ~l'~~,I,,. t976___ ---------- --------------- ENGL_A.I~I?_LEASIN~~--I1~IC_----------------- ----- -- --- -----_ - -- Defendants TO_ THE_ ~ROTHQ:TOT-,~E_Y,-------------------- -------- - P1eas_e__li.st-_th.e--ab.o~-ca~t~oned -ca~e--€o-r--arg~e~rt:--0~r~--P~ain~i~€'-s----- Exceptions_ to__Decision _of_Trial _Judge_.___________________________________________ To ------------------------------------------ Prothonotary November 1, ____________________ 19_76__ ----- -' t r -------------------- i, ~1•~,~~ ~~tF'b>f ~~'~, , a'~",r~ -~ ~ ~.- ~~>.~la;~ -------------- --- y William M. Gross Attarne for Plaintiff. Suite H, 1801 North Front Street Harrisburg, Pennsylvania 17102 '? C _> I I I I I I I I I I I I _ O c ~_ -- - d ,i ~,t r. z- ' ~. ; ca ~ -r, .. ~~ _ «.J _r' -~' ~- ~3 '~ C7 ~~C Clrt ~ --1 _„~ `~ b O'> -~ ~ ' ~ z I I I I I o I I I I I I I I I I I I I ~ I I I a I I ~ I I I I I H I ~ I I I 1 I 1 b ~ I I I I t~ ; 1 I y I I I I , I I I I I I I 1 1 I ~ I 1 I I • • Tti'I00, Ir1C • , IN THE COURT OF COMMON PLEAS OF Plaintiff , CUT'1BEP.LAND COUNTY, PENNSYLVANIA. v. ° ~~o. 117° Civil Term 1976 ENGLAND MOTORS, INC., and ENGLAND LEASING, INC., REPLEVIti Defendants T',T RE: PLAINTIFF'S EYCEPTIONS TO THE DECISION L ,. ~ - - OF THE TRIAL JUDGE IN [1 NOi1-JURY TRIAL Before SHUGHART, P.,J. and RAMBO, J_. ORDER OF COUP.T AND NOid, February z, 1977, for the reasons stated in the opinion filed this date, the plaintiff's exceptions *_o the decision of the trial judge are dismissed By the Court, ylvi H. Rambo J• ^ '~ mdli ~ti- -°- ..V ,.., Y Plaintiff , v. :RItLAN~? ~~IOTO}:S , INIT . , azid E~~i;LA~?}J L}BASING, IIv~. , ~r~efendants J1 J IIv fl?E COJ","~_ ~~? ~OPIr.[0~ ;~J ~,A.c 0 ~JU~'iI;ERLAPID i;t~uiJl'S', F'uNN`?LJi~\I=~, into. 111 {.,'_'dil Term ~_97~ REPLEVIv II( R.E • }?I:AIi}TII'F'' ; i:X_CEPTIONS TO TII~, DCISIt~1J OF TN. r' T[~IAL JUDGE IN A NON-JUDY `!'ILIAC E'efore SHiIGHART, P.J. and ttiAi~IBO. J. OZ'IIv~IOld and Oz~DER 0'r' COiJ~~T T=ais cgs? is before us on. plaintiff's exceptio~~s to the decision of the trial judge. Pla:±rtitf filed ari action. 1.Y~ replevi.n to recover a*i auto,~~obiI_e repossessed by defen- dan.t, }~ingland Leasing, Inc. (Leasing). At the close of the trial. tI1,, .judge grani:ecl defendants` ;notion for involuntar~,~ nonsuit on grounds that plaintifR`_ had failed to exercise tl,.e option to purchase the leased vebicld° as pYovl.decl in tl~e lease a<~reement. The trial jud«e also -~n~licated that any reineciy o7_aintif ~n~_ght have against defendant Er~~laad i•sotors, T_nc. (;Motors) would be in assunYpsit. Oral arguaer_t TA~as heard. by the court en bane o~~ plaintiff's vxceptlc>n5 anc? the case is now ready for dsp~.~sJ.t:[.o~~. On Jar~uar.y 1, 1.974, p]_aintiff by its aresident, '.iart~ld SGIl~}ler, and. Lea.Sln~, I>`;7 ? tS OfilCer ?Iaro'_c} Ln,°,land., etiterCd into a cwritten lease a>?reement (alai_n± ifs' ~ s Fxhibi.t '~Zo. 1 ) twheret~y Leasing greed to transfer nnsseUsio;.i o¢ .=n auto- mobil~~ r_o plaintifL for_ a, term o`. ttwent~-four nonths in cansideration. of marithly payments of $<3U.U2. The fina'_ nrovi.sion of the ,.writing gave p]_aintiff an option to nur.c}ease the +~ei:~_cle for :~19U0 at the end of the lease. Prior_ to or. contemporaneous with the execution of the writton :1_ease, Swidler and I3arold England entered into an oral agreement for. r.ad:io advertisin for En ;land :Motors. Plaintiff contends t~~a.t under the oral agreement it was to r ~ ~ tr}.'tie rns:~essis,~n of the vehicle described in the la~3se i.rl return tar 1tS fLlrni.Shli'i~? SdVeTtiSl.n~? serV'_i:£.'S iar `fotor:S u~.~er its broadcasting facilities. Flainti..f.f also ncaintrzins t'lat thv arise agreed upon orally was $7,420.48, which rE?17rC~'stntS t:'1(' rrtii'.llr ~-rallr ?t1Unt~ilj~ pa~flRC?'itS f r7 :i2'•~i.4:3~ nlc~s L'ne ;?190') option Y~ri.ce. :efendants a. r-llit the existence t:l,.. a.?l aral a=~;re:~.ment, }gut ~>1.1_ngo thu°~ s;.,nlz a~ree-~.~ent ~a:~s b~~t~t~ee,n Swidler and Harolc-l Finland ail ?;eh~l` o~~ ~•iotors only.. ~c~fen~~a.nt' F,?otor"s -~ositi.on is t'1at the oral. agreement c~as not a 'tr~~de" c, i= a vehicle. in return fo- a<ivertisi.i =; services. )efen.]ant lotors al1e~>,e~ r~nat the ora~_ ar~reement prav].deci F:'.iat ~~laintiff v?ouid ;lerforlll advart_isiYir; services yor fotars in an amount equal to not Less t'lan `he monthly renta]_ charge ~~un LeasnF~. Jea_endants speci.L_ca].ly deny that J:°a:i''tn? ;ties a T1art`j to the oral a~?reemE?nt and t~iat:. '`~Ot.arS tv7i5 %~ '?art"~ t0 the written a~reemellt. ~urinQ the term. of the lease ~~lainti`'f re~rulariv braaccast aclvartisements as instructed by ~'Iotors, kept a ru,lnin~; accaunt of the services nerfor=ned, ~lnd sent natorized staterrents of the services aerforl~ed to :~[ators on a m.ontli,; ;oasis. r?lain.tiff made na cash pa~amen.ts ~o Taeasin~ For t'le ,zse o`- t%le car. `~ ile ~no'~ithly oaymenrs re<~uired ~-,~T the lease ~a=~r.e paid by i•lators to ~easir.s; in recognition. of ¢~'ilt? a~~;vertisinr ser_vir_es performed ear_h mont`1 by nlai~it~__L Lot ;~:r.tor.s. ~y Oc?-abet;. 1975, t~la.ntiff. had per.f.arnled advErtis:~ng s~:r~•,Ticf>s Gq~.xal in value to the tata.7_ payments due under tie le.asa (S5; 520, 4ci . Theraafter_ ; plaintiff CoIit]_Ytll'yd to jli~rfJr1'1 StLCIl sQrVl_C~C'S. ~~t the ex,~irati.on of the lease in January, ]97~, plaintiff ?iacl ::~erformecl advertising services fo~• ?'rotors in the amount of ;~n,144.97, re}:,resenting a sur~alus o; X624.49 ._2_ ~ ~ o~~er the va~l_~°e of the monthly i~ayments due under the lease. ~'1_aintiff contends that 1_t ttiTas chargin;~ this surplus z~ainst tie 51900 option price {-~lai.ntiff ° s ~~xhib:it '10. ?) . T'l;iia~- ti:E~- continued to advertise until. `~tar.ch, =1975, whey. ~widler_ met with °~o er Enryland, ,rho had. recently <?cquir.ed defendanr_ corporation.:~,to discuss the lease agreement. At. that meeting '~_ot;er Enfiland demanded either return of the .loaned vc=_hicl_e or tie full option price of 5.190(). ~widler ~.^`fered to nay the ci3_fference bet~~~eer~ the option price and the value o~ the advertisin services rendered since rJct.ober, 1975; approxi- mately $530. 'Phis offer ~.:ras refused, the r~eetin? was ended, a.nd several days later the vehicle was repossessed. The repossession prompted plaintiff to `i.l.e the replevin a+~tion which hss brou~7ht this case to i.ts present posture. Plaintiff°s main excenti.ons to the decision o t_he trial j uds;e are three 1) The court erred in fending that the o~~tion was not exercised as requ~_red by the contract. ?_) "~he c;ourt erred iL~ finding that T-lotors was not a party to the lease agreement 3) The court erred. in granting the compulsory nonsuit. Plaintiff has also filed except~.ons to the court°s ruli~:gs on several objections to questions asked o:~ olaintiif's witnesses. For the reasons stated in this op:~.ni_on, sae agree *..ai.th the decision of the trial judge in fir. anting the comnul.- sory nonsuit, ?3efendants objected throuthout the hearings to the introductio.-~ of evidence concerning the oral agreement between 5widler and ?-Darold Englancl.l The basis of defendants° ob.iectior: was that the writin; executed by these uentl~men lAlthou;~h the trial judge reserved ruling on this objec- tl_on {T~.T_. 5), his agreement with defendants is implicit in the order granting; the motion for compulsory nonsuit. -3- ~ ~ embodies the ~~oir,pl.e:e a;reement and t?zat such evidence ;aaa~, therefore, barred by the parol evic?once r.u:Le. ?-~aainti9: _ounter7 that tizis c.a..se presents a~ exception to the T~arol evidence rule in r_hat ~?ei"_endants 'nave adTnitteci that t?ie grit ten leas _~ do=~s n~~t e":tbody the ecztire a~xreer!zent re=shed b`I the ?artier. 'after reviewing; the r.ecor~~ an~-i the appli- cable case la.w; tiae con+~lude tlza-t defendants are correct i.n their assertion that t?le r`arol evidence rule bans testi- Tnony c.oncernin~ the oral aUreement. ThP authoritative pronounce.Tnent of the. paro:l evc?ence T-ule is found i_Yi ~ianni v._Russel &._Co., _lxic,_, .28.1 '"'a. 32J, 1?~ ~. 791 (192~)~ 'adhere parties, without any {rand or Tristaice, have deliberately ,out t?,eir a~ree.ments in writing, the la=a declares the writi.T7g to b~v not only the best, but the only, evidence of their agree- n~er.t. ~ (citatioT7. omitted} . &x~k~ ' l_lf? '+7rlt~n~', nlUSt be. t}le f'Tltlre COntraCt between the parties i_f. parol evidence i.s to be excluded ." 28,_ pa. at 323, ~_2_~ t~. at 792. T'hi s language has i~eeT~ t?ie genesis of: an exception to t?1e rule wi!F'Tl t?"~'_' part!? SeE'klT7~' tf7 E'.i?~{3rLe file Wx'l.tin ~~:5 admitted t_Ina.t t?ie writi.n~; Noes not e*r.bo~~.tT the c.nrnpl~te -r•=e:ner?.t betTae2rT the c~arties. A11in~er v. `elvi_n, ~~~ ~ C'.a., ?93; 17.2 A. 77_l_ (1934) . Pr.ooi of the <3.?~.ui:~sion; `c~o~aever, must. °neas*.Tre un to an exact ~_ng stzindard. 1'he nr'o~op.eTlt ~` t?1~ p3ro.~ eVlt_~ei7Ce [ililSt n3:.eS°nt "clear, ?J 'reC1Se «nd conv:incin~ ev-i_dence to s'_:oza that the nart.y ~.xho seeks to enforce the ~~rr.itt.en a~,reement accordi.n~T to its tenor has admitted anc+ acicnod-rlecl~ed that the a~~reement. as ~:aritt~:n did na* ex~res~; w?iat the aarties intondec?. Boyd Estate, 39`~ ?'a. 7.2=i, 23:', x_45 A.2ci 81b, i20 (1.9~i3~). This is a heavy -4- • • burden which the courts have applied strictly. Scott v. Bryn Mawr Arms, 454 Pa. 304, 312 A.2d 592 (1973): Dunn v. Orloff, 420 Pa. 492, 218 A.2d 314 (1966)y Manley v. ~lanle 238 Pa. Superior Ct. 296, 357 A.2d 641 (1976). In the present case the only evidence which might be construed as an admission is found in the testimony of defendants' witness, Roger England (N.T. 83)e (~. Have you, subsequent to the meeting you had with r4r. Swidler, have you (sic) learned of any oral agreement that existed? A. Yes, I did learn he had an oral agreement with Mr. A. H. England. This statement is not one in which the party seeking to enforce the writing "admits in his own trial testimony that the agreement in writing did not fully and completely state the entire agreement between the parties." Yuhas v. Schmidt, 434 Pa. 447, 456, 258 A.2d 616, 621 (1969) (emphasis in original). Rather, this statement is merely an acknowledgment that some oral agreement existed between Swidler and Harold England, the terms of which the witness had no knowledge. We do not perceive this to be the '°clear, precise and convincing" evidence which has, in the past, justified the admission of parol evidence. See Universal Film Exchanges, Inc., v. Viking Theatre Corp., 20 Pa. D, a C.2d 167 (Pa. C.P. Phila. 1959), aff'd per curiam, 400 Pa. 27, 161 A.2d 610 (1960) Manley v. Manley, 238 Pa. Superior Ct. 296, 357 A.2d 641 (1976). Since plaintiff has failed to sustain its burden of proving an exception to the parol evidence rule, this court is limited to a review of the written lease. Looping to that written agreement it is beyond question that the parties to it are plaintiff and Leasingy -5- • ~~otors was not a party to the writing. The clear and unambiguous terms of that lease give plaintiff the option to purchase the leased vehicle at the end of the lease for $1900. Plaintiff never exercised the option as required by the contract. 'The contract calls for a payment of $1900. This obviously contemplates a lump sum cash payment, which plaintiff did not make. Plaintiff argues that it ?za.d exercised, or was in the process of. exercising, the option at the time of repossession. from October, 1975, through jlarch, 1976, plaintiff advertised and credited the value of. those services against the option price. Plaintiff maintains that this continued advertising, after all lease payments had been accounted for in October, 1975, constituted an exercise of the option. We cannot agree with plaintiff because the language of the option clause is clear in its contemplation of a cash payment. Plaintiff did not make such a payment and, consequently, di_d not exercise the option. If the parties had agreed on another manner in which the option could be exercised, the°~ should have written it into the lease. We note plaintiff's efforts to introduce. testimony concerning a prior agreement between the parties to this action, in which the option apparently was exercised. by plaintiff's providing advertising services, the value of. which was applied. against the option price. This evidence, however, was inadmissible because it has no legal relevance to the method of payment contemplated in the option clause now before this court. See Levant v. Leonard t~iasserman Co., Inc.., 445 Pa. 380, 284 A.2d 794 (1971)y Brubaker v. County of Becks, 381 Pa. 157, 112 A.2d 620 (1955)' Baumeister v. Baugh -6- • • •,,`'o_-cs Cc~ , 1 `:2 I'a. ~uaerior Ct, 3G5. 16 A. 2d 4~4 (? ~~+'3) . gee ~1so 2 ,I. G?itrmore, lvs.dence X377 ;3c~ ed. 140) . i,,~a ante *urtlAer that, even ii such tastimofi;y had bee,a ruled ~;c_ni.ssible, it ;aouJ_d not 'slave a?.ter.ed oui' dec~.sion. '?``~?_.~ is sc because altho~.as>,h the pr~.cr option was ex_erci_sed by adver~~isi.r!g i it was e:~erci.<;ed i.n a time^l.y r~iar~.n2r at t`.-:` end of t'.le lease., in c:.ontrast to txze ;~nti~:::!:e_1.~~ att.ettpt to exercise the option in this case. `i?~.e Lease e~:nired on Ja.~-z?sary 1, '.~76, As l.at:e as i°1a-roh 20. 1~a75, ~~laint~_ff had nc,t exercised the onticn. ?`~s r,f that c?ate, Taint i` f. :Mill. had r.ossesson o°: the lease-l ve_~zi_cle. 'lai~~ti~:r's failure to ezthf~r exer.c_:.Se ti~.e onr_ia~, or return th~x vehicle ar the end of r'~.:~ Lease con.- stituted a default i*_a_vinU Leasing>_ *_~ie ~~i.~ht to re*?ossess _~ accor.danck.:~ t~Ti.t'a the terms of the lease: i}~of. e::.z:~iration of t;:id_s leaseh the Lessee shall return anti deliver said vehicle tc Lessor at the ;point of delivery . ~~;~ limo is of the essence of this agree- ment and in the event the Lessee shall. be in de_fau.lt of_ .^ and of_ the pro- vi_si.ons her.eof~_ Lessor ,shall have t_he r9_~ht to termina*_e this agreement and repossess^the motor vehicle leased hereunder.-__ (Emphasis added) I,~ rails+~ to act tamely to exercise the onta..oz~, plaintiff ac.=ed at its peri:l.. for, when contracts are cption,al a~; to one tarty (plaintiff), they are strictly>' interpreted i.n favor cf the r>arty bound (x easing) . Pdoreover, in an option "the optioner is t2c:~t bound beyond the point where tkie ,vords of t_i:7N oTstion clearly and deb-i;.litely bind him.'' `4cArthur v. ',osenbe.urm Co. , 18cJ T". 2d 617 (3d Cit. 3.95t~} West Penn ~:ealt t:o.__v._ Acme ?vfarkets~_Inc. , 22t Pa. Su;~erior Ct. 2c32, _~03 !~. 2d F~36 (i.~73) ; Fisher v Iiilloc.,, g6 Dau^h. ?. 71 (~a. C.P. 1966) . ._7-_ ~' ~ i Since the option clause does not state a specific time beyond which Leasing caill not be bound, but states onl-y that the option is to be exercised "at the end of this Lease," a reasonable time will be inferred. ttiTalther ^ie v. United States Fidelity E: Guaranty Co., 397 F, Supp. 937 (~+~'.D. Pa. 1.975) ; Field v. C>olden Triangle Br.oadcastin~r,, 451_ Pa. !+10, 305 A. Zd 6g9 (1973) , cert. denied, 41.4 L'. S. 115 (197~t). Looking to all circumstances, we fi.n:3 that- tine attempt to exercise the option almost: three months after the lease terminated falls on the unreasonable side of. the line that delimits a reasonable time after the expiration of the lease, tJe conclude, therefore, that the trial court was correct in r_i~ling that the option c,;as rte?- exercised as required by the contract. Plaintiff had na right to continue ir. possession of the leased vehicle after the lease expired. Therefore, the nonsuit entered against plaintiff in its suit to recover the vehicle was proper be~:_ause plaintiff zaas unable to demonstrate its right t_o possession. G,le also agree that the replevin action as to rotors was improper since Leasing admitted that it. repossessed the vehicle and Motors was not a party to the lease agr.ee- went. Plaintiff's only claim against Motors appears to be for the value of advertising services performed far Motors, for which plaintiff has not been reimbursed, The proper means for v.laintiff to oursue its claim would be att action a.n assumnsit, as the trias_ judge correctly indicated in his order of June 17, 197b. Plaintiff°s remaining exceptions to the decision of *he trial judge can be disposed of pursuant to local rule ?10-4, which provides: ''Matters not arcued in the brief shall be deemed abandoned." Plaintiff chose to argue only -8-.. . . ~ tiIJSE 'itr3IP.S C~1.:>CiJ.~~SE3.Li d~JU'Ve aT.1.'L LoY~ t~lulj~ ~:CE'aS~11y x+11? ':-7-etiC! :1 t7 i. Ci i,o~?1:iti i ~7''_ 3ilerlt5 O_~ ~'(1!7SE' (`Xr'.~'?,t1C,I'! + llOt i,l1r8i1C'-:I 1.(~ ~ r: ~'~iJL' v~~t^`, .' et;ruary L ~ c~?7, :or t'.:e re;3sc>ns s:~ated _;~ :fix:-~ op ~.._~7.c;n filed tr s dare., ~~`,r>. ~ ~.aix~~-}..^f's p c =-.tzons to tie de.~tiision o~' she trial jud„e. arv dism.isse.d. By the Court, ~~ ?. v i H . ri. a ~n b o _._. _ _ __.- J .--- n: r K =aorne '~lF Gei:as, Esquire Ail.l~_ar,. 's, "=rocs, Esquire ,c • ~ WI00 , II1C . , ITT THE COURT OF COITION PLEAS OF . CUI~IBEP.LAND COUNTY , PENNSYLVANIA Plaintiff v. N0. 1178 CIVIL TERM 1976 ENGLAND MOTORS, INC., and • ENGLAND LEASING, INC., Defendants REPLEVIN NOTICE OF APPEAL Notice is hereby given that WI00, Inc., plaintiff above named, hereby appeals to the Superior Court of Penns;~lvania from the Order entered in this matter on the 2nd day of February, 1977. ~ . __-~ i t ,~,.r-;_ William M. Gross Krank, Gross & Casper Suite H, 1801 North Front Street Harrisburg, Pennsylvania 17102 Telephone No.: (717) 234-~~931 Attorneys for Plaintiff ~~ ~~ ~ ~ ~ ~~, • • WI00, INC., IN THE COURT OF COMMON PLEAS OF' Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. N0. 1178 CIVIL TERM, 1976 ENGLAND MOTORS, INC. and ENGLAND LEASING, INC., . Defendants REPLEVIN BRIEF OF PLAINTIFF ON PLAINTIFF"S EXCEPTIONS TO DECISION OF TP.IAL JUDGE I. HISTORY OF THE CASE This is an action of replevin that is before the Court on exceptions taken to the decision of the trial judge, The Honorable Clinton R. Weidner. The decision was in the form of an order of court dated June 17, 1976, in which the Court granted a motion for an involuntary non-suit in favor of the Defendants. The court order came at the completion of the Plaintif_f's case in a non-jury hearing held before Judge Weidner. Previously, Judge GJeidner, after a hearing held on April 19, 1976, directed the issuance of a writ of replevin and ordered that possession of a certain vehicle be delivered to Plaintiff, WI00, Inc. upon the posting of a bond in the amount of $4,000.00. Subsequent to that order, the Plaintiff did post a bond but Defendants then posted a counter-bond and the vehicle has remained in the possession of the Defendants. II. STATEMENT OF FACTS This proceeding was instituted by the Plaintiff to recover a certain 1974 Javelin automobile that Plaintiff contends was wrongfully taken by one or more of the Defendants. ' ~I`Y Plaintiff is WI00, Inc., operator of radio station WIOU, in Carlisle, Pennsylvania. Defendants are England Motors, Inc., the operator of an American P~otors automobile agency in Harrisburg, and England Leasing, Inc., the holder of record title to the vehicle and an apparent party to a certain lease agreement involved in this case. The basic issue is whether the Plaintiff has the right to recover possession of the automobile. As the order from which exceptions are being taken is the granting of an involuntary r~on- suit, the specific facts presented at the ~iear_ing, and upon which Plaintiff relies in support of its exceptions, will be discussed under the Argument which follows. III. ARGUMENT 1. THE NON-SUIT SHOULD BE REMOVED The question before the Court is whether the non-suit should be removed. In deciding this issue, the evidence must be considered in the light most favorable to the Plaintiff and Plaintiff must be given the benefit of every fact and every reasonable inference of fact arising from the evidence and all conflicts therein must be resolved in its favor. Sloss v. Greenberger, 396 Pa. 353 (1959). At the hearing, the Plaintiff presented testimony through its president, Harold Swidler, its secretary and office manager, Evelyn Trimmer, and through certain admissions made by the Defendant at a prior hearing and in the pleadings. The evidence established, at least for purposes of this proceeding, the following facts: _2- oZ • • 1. On or about January 1, 1974, Harold Swidler, on behalf of the Plaintiff, entered into an oral agreement with Harold England on behalf of Defendant England Motors. (N.T. 6,79). 2. The substance of the agreement was that the Defendant would trade the subject vehicle to the Plaintiff in return for radio advertising to be broadcast by the Plaintiff on Defendant's behalf. As part of the oral understanding, Plaintiff signed a "leasing agreement" with Defendant England Leasing, executed on the latter's behalf by Harold England. Nevertheless, the understanding bet~~reen the parties was that Plaintiff would not make payments to England Leasing but its sole obligation was to broadcast radio advertising and, to the extent payments were required by England Leasing, they would be made by England Motors. (N.T. 6,14,15). 3. The Plaintiff performed advertising services for the Defendant continually and each month sent the Defendant a notarized statement of the total amount of advertising services performed for the month, a notarized statement of the specific times during the month the advertising services were performed and a photocopy of a running statement of account showing the monthly totals and balances and reflecting all dealings between Plaintiff and England Motors. (N.T. 10). 4. The total amount due Defendant for the automobile, as confirmed by the amount set forth in the leasing agreement, was $7,420.48. This was divided in the leasing agreement into two parts: $5,520.48 payable under the terms of the leasing agreement in equal monthly payments for twenty-four months and $1,900.00 referred to in the leasing agreement as an option price. (N.T. 16,79). -3- ~, ~ l ;, • 5. Prior to the trade in question there were three other vehicles sold to Plaintiff by Defendant in much the same manner, with all payments being made only in the form of advertising services and with Defendant paying no cash to Plaintiff for those services but giving Plaintiff full credit on account of the various purchase prices in accordance with the actual amount of advertising services performed. The last of those prior deals was also accompanied by a "leasing agreement". (N.T. 23,29,79). 6. As of shortly after October 1, 1975, Plaintiff, by virtue of the advertising services performed, paid Defendant in full for a prior balance of $49.98, various other charges made by England Motors during the period and for the $5,520.48 portion of the trade price for the subject automobile. (N.T. 55,57,79). 7. Thereafter, Plaintiff continued to perform advertising services each month through March, 1976, at which time the Plaintiff was entitled to a credit of $1,356.49 against the $1,900.00 (option price) remaining due on the automobile. (N.T. 12,57). 8. On or about Nlarch 22, 1976, Harold Swidler met with Roder England, who then had taken over the operations of both Defendants. At that time, WI00 had performed advertising services in the amount of $1,356.49 above and beyond the $5,520.48, leaving $543.51 due Defendants in the form of additional advertising services. (N. T. 19, 20, 21) . 9. On March 25, 1976, Defendants sent Plaintiff the 1976 registration card and license plate sticker. Although some specific references to testimony have been given above, the whole of the evidence should be taken into considera- Lion in this matter. This evidence shows a course of conduct and -4- ,~ ~ ~ • method of dealing that existed over the years that should be helpful in determining the extent of the rights that Plaintiff had in the vehicle. For example, even though Plaintiff performed. advertising services for Defendant England Motors over many years, Plaintiff was never paid in cash but through trade of motor vehicles. (N.T. 63). Further, as has been stated above, Defendants recognized the continuing existence of the oral agreement and it must be apparent from a reading of all of the evidence that the leasing agreement is nothing more than an accommodation that Plaintiff provided England Motors. If the leasing agreement was, in fact, intended to be the agreement that governed the rights and actions of the Defendants (and the Plaintiff), then why did not the Defendants demand the return of the behicle in January, 1976? The only indication in the evidence that a return of the vehicle was demanded occured on March 22, 1976, when Harold Swidler visited Roger England. Until then there was no request for return of the vehicle. (N.T. 64). Further, if the lease agreement had been paramount in the minds of Defendants why did not Defendants pay for the advertising services as they received bills? The original two year rental for the vehicle was paid in October, 1975, and, from then on, although England Motors was continually billed for these advertising services, nevertheless it gave no indication that it would pay for these services in cash and take the car. (N.T. 64). The order of court from which these exceptions are taken is very brief. The non-suit was granted on the basis that "the option was not exercised as required by the contract" and further that '°England Motors was not a party to the lease agreement and a remedy against them lies in assumpsit". -5- ~ ~~ ,. y. ,. ;. i • • Throughout the hearing the Court reserved rulings on a number of points. These rulings have not been made. Perhaps it would be helpful for example for the Court to have specifically ruled on questions involving the oral agreement, prior agreements, etc. ldevertheless, it appears that the Court in its order has taken the position that the written lease document is controlling and that the option, required therein, was not exercised by the Plaintiff. The problem with this point of view is, first of a11, that it does not give effect to the principle that all evidence should be construed in light most favorable to th.e Plaintiff. Secondly, it involves a misinterpretation of the written lease agreement itself . A prior, or contemporaneous collateral agreement, in this case an oral one, may always be shown if it is admitted by both parties that the writing does not contain the whole agreement. Allinger v. Melvin, 315 Pa. 298 {1934). The test to be applied in determining whether a written agreement supersedes an oral understanding is to compare the two and determine whether the parties would naturally include the one in t:he other. Br ant v. Br ant, 295 Pa. I46 (1929) In this case, it is clear that the lease agreement could not possibly have been intended by either party to encompass the entire understanding between the parties. The lease agreement says nothing about advertising. The lease agreement says nothing about the fact that WI00 would make no payments under the lease agreement to England Leasing nor would it be expected to. Truly, the written -6- ~a~ • • lease agreement was nothing more than an accommodation to England Motors, the party with which WI00 was dealing. By having GJI00 sign the lease agreement, England Motors (or England Leasing) could have the agreement "discounted" at a bank and receive funds representing a reimbursement to it of the value of the vehicle that was being given to Plaintiff and thereby was being removed from Defendants' inventory. Also of particular importance is the "option" itself. This option states as follows: "At the end of this contract WI00, has the option to purchase this automobile at $1,900.00" This so-called option does not set forth either the method of payment of the option price or the time of payment. Nor does it set forth the time for exercise of the option or a method of exercise of the option. The leasing agreement was a document prepared by the Defendants and, to the extent it is ambiguous, it must be construed against them. Certainly the option provision is ambiguous in the sense that those provisions that normally are a part of any option agreement are not set forth. Therefore, the Court and the parties must resort to what might be reasonable interpretations consistent with other parts of the agreement and the conduct of the parties. In this case, the Court should resolve the question of exercise of the option in favor of the Plaintiff. After October, 1975, the Plaintiff had already "paid" to the Defendants all amounts owing on the basic "rental" and yet the Plaintiff continued to provide advertising services for the next six months, as it had done in the past, and continued to send paid bills to the Defendants. -7- ~~~ , ., ~ • into by their predecessors in office should not make the corporation any the less bound by them. The non-suit should be stricken and a new trial should be ordered. 2. THIS ACTION OF REPLEVIN SHOULD LIE AGAINST ENGLAND MOTORS AS WELL AS ENGLAND LEASING. For purposes of the foregoing argument, we have sometimes referred to the Defendants interchangably. There may have been two separate corporations involved but, as far as the Plaintiff was concerned, it was dealing with one. The dealings were negotiated with one individual on behalf of both Defendants and, from the Plaintiff's point of view, it was merely a question of trading; radio advertising for a vehicle. The chief executive officer of both corporations had admitted taking the vehicle and, irrespective of which corporate entity has legal title, it is clear that both Defendants are acting in concert and the vehicle is in possession of both. The action, therefore, should lie against both. The Plaintiff freely admits that a certain sum of money, namely the difference between the $1,900.00 option price and the amount of advertising rendered after October, 1975, should be paid to England Motors and/or England Leasing in return for title to the vehicle. If the non-suit is lifted, it should be lifted as to both Defendants so that this entire matter can be properly concluded. 3. OTHER EXCEPTIONS TAKEN BY PLAIPdTIFF. In its exceptions to the order of Gourt, the Plaintiff questioned certain evidentiary matters and there is also the question of the rulings reserved by the trial judge -9- These matters can properly a ~l ~ ~ be considered at a later time if Plaintiff's request for a new trial is granted. It does not seem necessary that they be considered now. IV. CONCLUSION Reviewing the evidence in a light most favorable to the Plaintiff, it is suggested that the Court should find that the~!~ existed an agreement between the parties for the trade of a motor vehicle for advertising. The written lease agreement did not control the arrangement between the parties. Even if the lease agreement were to be considered critical, the question of the option should be resolved in favor of the Plaintiff:. The agreement itself is silent on the exercise of the option and all of the actions of the parties indicate that, to the extent an exercise of the option is material, there was such exercise. The non-suit should be stricken and a new trial ordered. Respectfully submitted ,; ~ ~°,~-~,,,, ~ '~ < ' a~ William M. Gross Edgar R. Casper Krank, Gross & Casper Suite H, 1801 North Front Street Harrisburg, Pennsylvania 17102 Attorneys for Plaintiff -10- ~~' • • W100, INC., ) IN THE COURT OF COMMON PLEAS OF Plaintiff ) vs. ) CUMBERLAND COUNTY, PENNSYLVANIA ENGLAND MOTORS, INC. and ) N0. 1178 CIVIL TERM, 1976 ENGLAND LEASING, INC., ) Defendants ) IN REPLEVIN BRIEF OF DEFENDANTS OPPOSING PLAINTIFF'S EXCEPTIONS TO DECISION OF TRIAL JUDGE I. HISTORY OF THE CASE On April 9, 1976, the Plaintiff filed its Complaint in Replevin, averring that the Defendant wrongfully seized an automobile which was titled in the Defendant but was being leased by the Plaintiff. A Motion for Issuance of a Writ of Seizure was filed on that same day by the Plaintiff, and a hearing was held on Aoril 19, 1976, before Judge Clinton R. Weidner, to determine whether probable cause existed to allow the Plaintiff to repossess the vehicle pending a full hearing on the substantive issues which led to the initial sei- zure. As a result of that hearing, a Writ with bond issued, and a Counter- bond was thereafter filed by the Defendant to permit the Defendant, England Leasing, Inc., to remain in possession The Defendants then filed an Answer to the original Complaint on May 10, 1976 Weidner on June 17, 1976. Hearing was held before Judge The instant proceeding was instituted by the Plaintiff to recover a 1974 Javelin automobile that was repossessed by the Defendant, England Leasing, Inc., when, the Defendant contends, the lease contract under which Plaintiff possessed the vehicle came to an end and Plaintiff failed to exercise its con- tractual option to purchase the same. Following the Plaintiff's case, and on the motion of the Defendant, the court entered an involuntary non-suit on the basis that the contractual option was not exercised and that the Defendant, England Motors, Inc., was not a party to the controlling lease agreement. II. ARGUMENT A. THE DECISION OF THE JUDGE ENTERING A NON-SUIT SHOULD NOT BE OVERTURNED. ~ ~ ~ The involuntary non-suit entered by Judge Weidner is based upon the finding that the vehicle in question was leased under a written contract, the terms of which required the exercise of an option by the Plaintiff in order to take title to the automobile. No evidence was introducted by the Plaintiff that the option was exercised or that the terms of the lease agreement were satisfied. The testimony presented by the Plaintiff indicated only prior oral negotiations or agreement. It is clear that, in the absence of ambiguity, a written contract is held to express all negotiations and agreements made prior to and leading up to its execution; that is, negotiations are presumed to be merged in the writing and oral testimony is inadmissible to explain or vary the writing. National Cash Register Company vs. Modern Transfer Company, Inc., 224 Pa. Super. Ct. 138, 302 A. 2d 486 (1973). In the instant case, counsel for the Defendants made vigorous and con- tinuing objection to any evidence of prior agreements or negotiations which would vary or contradict the terms of the admitted written document. The law clearly requires that the written document not be added to nor subtracted from by parol evidence. Scott vs. Bryn Mawr Arms, Inc., 454 Pa. 304, 312 A. 2d 592 (1973). This rule seeks to preserve the integrity of written agreements by refusing to permit contracting parties to attempt to alter the import of their contract through the use of contemporaneous or prior oral declarations. Rose vs. Food Fair Stores, Inc., 437 Pa. 117, 262 A. 2d, 651 (1973). The court's clear ruling that "the option was not exercised as required by the contract" made Plaintiff's evidence concerning prior contracts, earlier negotiation, course of conduct, etc., irrelevant. Further, the court's deter- mination was clearly one of law, thus making Plaintiff's contention that the facts must be viewed in the light most favorable to the Plaintiff inapplicable. Accordingly, the Exceptions of the Plaintiff should be dismissed and the court's order of an involuntary non-suit should be affirmed. B. THE REPLEVIN ACTION CANNOT LIE AGAINST DEFENDANT, ENGLAND MOTORS, INC., AS IT IS NOT THE PARTY IN POSSESSION NOR THE PARTY THAT REPOSSESSED THE PROPERTY IN QUESTION. -2- .f '%~ • The Defendants, England Motors, Inc., and England Leasing, Inc., are two distinct and separate corporate entities. The instant replevin action was brought against both Defendants even though England Motors, Inc. is not now in possession of the repossessed vehicle, did not do the repossessing, does not have title thereto, and was not involved in nor a party to the lease agreement under which Plaintiff obtained possession. Plaintiff's remedy against England Motors, if any, is in assumpsit. The dispute between Plaintiff and England Motors, Inc. is over advertising and the alleged failure to pay therefor. On the basis of the foregoing, the non- suit entered with respect to England Motors on the basis that it was not a party to the lease agreement and that any remedy against it would be in assump- sit should be sustained. III. CONCLUSION As a matter of law, a trial judge has ruled that an involuntary non- suit must be entered against Plaintiff on the basis that the Plaintiff did not take the necessary steps under a written contract to obtain possession of the property which it wishes to replevy. On the basis of a legal determination that the written lease agreement controls possession of the vehicle in question, it is also incumbent upon the court to recognize that England Motors, not a party to the lease agreement is not a proper party to the instant action in replevin. The Plaintiff's Exceptions should be dismissed. Respectfully submitted, MELMAN, GEKAS, NICHOLAS AND LIEBERMAN By Milton Bernstein, Esquire 405 North Second Street Harrisburg, Pennsylvania 17108 Attorneys for Defendants ~- • W100, INC., vs. Plaintiff ENGLAND MOTORS, INC. and ENGLAND LEASING, INC., Defendants EXCEPTIONS TO DECISION OF TRIAL JUDGE ' i IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA N0. 1178 CIVIL TERM, 1976 IN REPLEVIN BRIEF OF DEFENDANTS OPPOSING PLAINTIFF'S I. HISTORY OF THE CASE On April 9, 1976, the Plaintiff filed its Complaint in Replevin, averring that the Defendant wrongfully seized an automobile which was titled in the Defendant but was being leased by the Plaintiff. A Motion for Issuance of a Writ of Seizure was filed on that same day by the Plaintiff, and a hearing was held on Aoril 19, 1976, before Judge Clinton R. Weidner, to determine whether probable cause existed to allow the Plaintiff to repossess the vehicle pending a full hearing on the substantive issues which led to the initial sei- zure. As a result of that hearing, a Writ with bond issued, and a Counter- bond was thereafter filed by the Defendant to permit the Defendant, England Leasing, Inc., to remain in possession. The Defendants then filed an Answer to the original Complaint on May 10, 1976. Hearing was held before Judge Weidner on June 17, 1976. The instant proceeding was instituted by the Plaintiff to recover a 1974 Javelin automobile that was repossessed by the Defendant, England Leasing, Inc., when, the Defendant contends, the lease contract under which Plaintiff possessed the vehicle came to an end and Plaintiff failed to exercise its con- tractual option to purchase the same. Following the Plaintiff's case, and on the motion of the Defendant, the court entered an involuntary non-suit on the basis that the contractual option was not exercised and that the Defendant, England Motors, Inc., was not a party to the controlling lease agreement. II. ARGUMENT A. THE DECISION OF THE JUDGE ENTERING A NON-SUIT SHOULD NOT BE OVERTURNED. :~ ~- The involuntary non-suit entered by Judge Weidner is based upon the finding that the vehicle in question was leased under a written contract, the terms of which required the exercise of an option by the Plaintiff in order to take title to the automobile. No evidence was introducted by the Plaintiff that the option was exercised or that the terms of the lease agreement were satisfied. The testimony presented by the Plaintiff indicated only prior oral negotiations or agreement. It is clear that, in the absence of ambiguity, a written contract is held to express all negotiations and agreements made prior to and leading up to its execution; that is, negotiations are presumed to be merged in the writing and oral testimony is inadmissible to explain or vary the writing. National Cash Register Company vs. Modern Transfer Company, Inc., 224 Pa. Super. Ct. 138, 302 A. 2d 486 (1973). In the instant case, counsel for the Defendants made vigorous and con- tinuing objection to any evidence'of prior agreements or negotiations which would vary or contradict the terms of the admitted written document. The law clearly requires that the written document not be added to nor subtracted from by parol evidence. Scott vs. Bryn Mawr Arms, Inc., 454 Pa. 304, 312 A. 2d 592 (1973). This rule seeks to preserve the integrity of written agreements by refusing to permit contracting parties to attempt to alter the import of their contract through the use of contemporaneous or prior oral declarations. Rose vs. Food Fair Stores, Inc., 437 Pa. 117, 262 A. 2d, 651 (1973). The court's clear ruling that "the option was not exercised as required by the contract" made Plaintiff's evidence concerning prior contracts, earlier negotiation, course of conduct, etc., irrelevant. Further, the court's deter- mination was clearly one of law, thus making Plaintiff's contention that the facts must be viewed in the light most favorable to the Plaintiff inapplicable. Accordingly, the Exceptions of the Plaintiff should be dismissed and the court's order of an involuntary non-suit should be affirmed. B. THE REPLEVIN ACTION CANNOT LIE AGAINST DEFENDANT, ENGLAND MOTORS, INC., AS IT IS NOT THE PARTY IN POSSESSION NOR THE PARTY THAT REPOSSESSED THE PROPERTY IN QUESTION. -2- ~ 3 `~ • • v~1I00 , INC . , VS. Plaintiff E~ivGLAVD MOTORS , IIQC . and ENGLAND LEASING, INC . , Defendants J IN Tl-lE COURT OF CO;ZMON PLEAS CF CUi'-7BERLAi4D COUNTY, PENNSYLVANIA i~30. 1178 CIVIL TER4°~, 1976 P~PLEVIN PLAINTIFF'S TRIAL T~MO~°~A11DU'i~'I 'T'his is an action in replevin in which the Plaintiff seeks to recover a 1974 Javelin automobile that Plaintiff contends was wrong- fully taken by one or more of the Defendants. T'ne Plaintiff is ti~7I00, Inc. , operator of radio station ;,~1I00 in Carlisle, Pennsylvania. Defendants are England Motors, Inc., the operator of an American Motors automobile agency in Ilarrisburg, and England Leasing, Inc., the holder o.f record title to the vehicle and an apparent party to a certain lease agreement involved in this case. Plaintiff made application for a writ of seizure and file Court, on April 19, 1976, after testimony presented by all parties, ordered file issuance of the writ upon posting of bond. The Plaintiff did post bond and the Defendants filed a counterbond so the vehicle seas remained in ti7e possession of the Defendants. The matter is now 'uefore Judge 63ei dner for trial . The basic issue is the same as t_zat ~•anich was before tine Court at the hearing on Plaintiff's application for a writ of seizure - whether the Plaintiff has the right to recover possession of the automobile, the only difference being t'aa t ~;ahil~ tcie Court must now determine tine ~ • validity of Plaintiff's claim, at tine first hearing the Court ilad to determine tine probable validity of Plaintiff's claim. See Pa. Q.C.P. 1~75.1ie)• The evidence presented at the first hearing is available to t'ne Court for the purposes of this hearing. In sununary, the evidence shows that: 1. On or about January 1, 1974, Harold Swidler, on behalf of the Plaintiff, entered into an oral agreement with Harold England on behalf of Defendant England Motors. 2. T?ze substance of the agreement was that i~he Defendant would trade t%e subject vehicle to the Plaintiff in return for radio adver- tising to be broadcast by the Plaintiff on Defendant's behalf. As part of the oral understanding, Plaintiff signed a "leasing agreement" witiz Defendant England Leasing, executed on the Tatter's behalf by llarold England. i~ievertheless, the understanding between the parties was that Plaintiff would not make payments to England Leasing but its sole obligation ~a~as to broadcast radio advertising and, to the extent payments were required by England Leasing,. they would be made by England Motors. 3. All payments under the "leasing agreement'" were, in fact, made by England Motors. 4. T'ne Plaintiff performed advertising services for the Defendant continually and each month sent the Defendant a notarized statement of the total amount of advertising services performed for t'ne month, a notarized statement of the specific times during the month the advertising services were performed and a photocopy of a running statement of account showing the monthly totals and balances -2- ~ ~ ~ and reflecting all dealings between Plaintiff and England Motors. .~. The total amount due Defendant for the automobile, as confirmed by the amount set fortiZ in the leasing agreement, was $7,420.48. This was divided in the leasing agreement into two parts: $5,520.48 payable under tine terms of the leasing agreement in equal monthly payments for t~~~enty-four months and $1,900.00 referred to in the leasing agreement as an option price. b. Prior to the trade in question there were three other vehicles sold to Plaintiff by Defendant in mucin the same manner, with all payments being made only in the form of advertising services and with Defendant paying no cash to Plaintiff for those services but giving Plaintiff full credit on account of the various aurchase prices in accordance with the actual amount of advertising services performed. T'ize last of those three prior deals was also accompanied by a "leasing agreement'". 7. As of shortly after October 1, 1975, Plaintiff, by virtue of the advertising services performed, paid Defendant in full for a prior balance of $49.98, various other c'zarges made by England ?'Motors durin the g period and for the $x,520.48 portion of the trade price for the subject automobile. 8. Thereafter Plaintiff continued to perform advertising services each month through March, 1976, at ~~~hich time the Plaintiff was entitled to a credit of $1,356.49 against the $1,900.00 (option price) remaining due on the automobile. 9. On or about March 22, 1975, IIarold ~Taidler met with P.oger England who then had taken over the operations of tine Defendants. -3- . • Roomer England refused to recognize a credit due ti,1I00 for advertising services performed in the amount of $1,356.49 or for any other amount and claimed $1,9~S.DO was due on account of the vehicle. lp. "Harold Swidler, on behalf of the Plaintiff was prepared at all times, including the time of t'n.e first hearing, to give the Defendant the additional $.543.51 due it in the form of either adver- tising services or a cash payment. On the basis of tL1e foregoing the Court iZeld, after the first hearing, that the Plaintiff '.mad the right to recover possession and this same result should obtain at this stage of the proceedings. Of course, the entire controversy appears to have arisen because of the change of raanagerner?t of the Defendants that tnoxc place in early 1976. Roger England, who seems to be presently in control of the Defendants, might have been unaware of arrangements entered into by his predecessors but he certainly cannot eliminate the corporations' responsibility for those arrangements. Plaintiff is entitled to an order directing Defendants to return to Plaintiff physical possession of the vehicle and awarding proper damages. In this case, Plaintiff has requested both special and exemplary damages. Plaintiff has been deprived of the use of the vehicle from i~arclz 27, 1976, to date. "When property is capable of such physical use and enjoyment as cannot be compensated by allowance of interest, it is necessary to consider t~ze value of such use. Thus when the property detained consists of horses, tools, implements of trade, etc., the general rule is that the party deprived of ;possession is entitled to the reasonable value of the use during the period of e~rongful detention." Armstron & Latta v. Cit of Philadelphia, 249 Pa. 39 , 45 (1915) . -4- ' ~ • t ~ The Plaintiff is prepared to show the reasonable value of 'ts loss of use of the vehicle to be $70.00 a week as measured by i the minimum charge that Plaintiff would incur if it were to rent a vehicle for t'ne period. t~xemplary damages may also be awarded in a replevin case and See Plaintiff believes the circumstances of this case warrant it' Co Wile v. I~cGrati1, 194 Pa. 498 (1900) , Miller v. Devon Strafford 16 Chester 258 (1968), 31 P.L.E. (Replevin) §57. Plaintiff requests the Court to enter an order directing return of t'ne vehicle and awarding suciz damages as the Court finds to be proper. Respectfully submitted, ;~ ~ ~; : Z ~~ ~ ~ ~ ~ -- William M. `=ross Krank, Gross & CaspE,r Suite H, 1801 North Front Street Harrisburg, Pennsylvania 17102 Attorneys for Plaintiff W100, INC., vs. Plaintiff ENGLAND MOTORS, INC. and ENGLAND LEASING, INC., Defendants Facts • IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA N0. 1179 CIVIL TERM, 1976 } IN REPLEVIN TRIAL BRIEF __..__. On April 9, 1976, the Plaintiff filed its Complaint in Replevin, averring that the Defendant wrongfully seized an auto- mobile which was titled in the Defendant but was being leased by the Plaintiff. A Motion for Issuance of a Writ of Seizure was filed on that same day by the Plaintiff, and a hearing was held on April 19, 1976, in the Cumberland County Court House, the Honorable Clinton R. Weidner, Judge, presiding, to determine whether probable cause existed to allow the Plaintiff to repos- sess the vehicle pending a full hearing on the substantive issues which led to the initial seizure. As a result of that hearing, a 4drit with Bond issued, and a Counterbond was thereafter filed by the Defendants to permit the Defendant, England Leasing, Inc., to remain in pos- session. The Defendants then filed an Answer to the original Complaint on May 10, 1976, denying the Plaintiffs averments and setting forth the following: 1. That the vehicle in question was obtained by a written lease executed between the Plaintiff and England Leasing, Inc. 2. That the term of the lease was for two years which expired December 31, 1975. that lease. 3. That there was no subsequent oral modification of :~ y ~ ~ 4. That there was an option to purchase the vehicle at the end of the lease for a stipulated sum of One Thousand Nine Hundred ($1,900.00) Dollars. 5. That the option was not exercised. 6. That a contemporaneous oral agreement was entered into by the Plaintiff and the Defendant, England Motors, Inc., whereby the Plaintiff would provide radio advertising for the Defendant, England Motors, Inc., and the Defendant, England Motors, Inc., would pay the Defendant, England Leasing, Inc., the amount required by the lease monthly throughout the two year term. 7. That the oral agreement for radio advertising was to be for no less than the amount of these monthly payments. 8. That no agreement was made between the Plaintiff and either Defendant as regards the payment of the option afore- mentioned in the form of advertising. The matter was then ordered for trial on June 17, 1976, in the court hereinbefore mentioned, and is now ripe for a full hearing of the substantive issues and a determination in accor- dance with law. The background of the instant controversy is as follows. On January 1, 1974, a written contract in the form of a lease was executed between the Plaintiff and the Defendant, England Leasing, Inc. The Plaintiff admits in his pleadings that prior to the signing of this lease, the Plaintiff and the Defendant, England Motors, Inc., entered into an oral agreement whereby the Plain- tiff would se11 to the Defendant, England Motors, Inc., radio advertising, in an amount no less than the monthly lease charge for a vehicle to be leased to the Plaintiff by England Leasing, Inc. As a result of this prior oral agreement, the Plaintiff would not receive any money from the Defendant, England Motors, Inc., for the advertising provided, and would not pay any money to England Leasing, Inc., for the lease of the vehicle. The -2- ~ ~. ~ ~ Defendant, England Motors, Inc., would and did pay the amount of the monthly lease for the vehicle to the Defendant, England Leasing, Inc., and their corporate records reflect such payments monthly throughout the term. At the end of the term of the lease, the Plaintiff con- tinued to provide advertising for the Defendant, England Motors, Inc., but failed to obtain authorization to do so. The Plaintiff's pleadings admit that credits were applied to the Defendant's, England Motors, Inc.'s, account, which reflect that the obliga- tion, under the terms of the oral agreement as it related to the amount obligated to be provided, was in fact completed by October 1, 1975. The Defendant, England Motors, inc., continued to autho- rize advertising until the end of the term, but no additional agreement was made between any of the parties which affected the original oral agreement or the lease agreement at any time. The Plaintiff claims that previous agreements, similar in nature, gave it a right to assume a modification of the oral agreement and the written lease. In fact, the Plaintiff, by its own admission, properly exercised its option at the end of the term of the previous lease agreement. The principals for the Plaintiff appeared and executed documents which properly trans- ferred title to the Plaintiff at the expiration of that prior lease. Argument As has been previously stated, this case comes before your Honorable Court on arguments set forth in the pleadings in this matter as set forth above. The general principles of law and the standard of review follow. It is clear that, in the absence of ambiguity, a written contract is held to express all negotiations and agree- ments made prior to and leading up to its execution; that is, -3- ~1 ;~ r • negotiations are presumed to be merged in the writing and oral testimony is inadmissible to explain or vary the writing. National Cash Register Co. v. Modern _Transfer Co., Inc., 224 Pa. Super. 138, 302 A. 2d 486 (1973)• It is equally true that in a written contract the intent of the parties is the writing itself, and when the words are clear and unambiguous, the intent is to be determined only from the express language of the agreement. Bobali Corp. v. Tampa Co., 235 Pa. Super. 1 (1975). Bobali was a case involving interpretation of language in an option contract. It is also clear that all preliminary negotiations, conversations and verbal agreements are merged in and superseded by a subsequent written contract; unless fraud, accident or mis- take be averred, the writing constitutes the agreement between the parties and its terms may not be added to nor subtracted from by parol evidence. Scott v. Bryn Maur Arms, inc.., 454 Pa. 304, 312 A. 2d 592 (197 3) . The parol evidence rule seeks to preserve the integrity of written agreements by refusing to permit contracting parties to attempt to alter the import of their contract through the use of contemporaneous oral declarations. Rose v. Food Fair Stc7res, Inc., 437 Pa. 117, 262 A. 2d 851 (170). We contend, therefore, that absent any allegation that parol evidence should be considered to clarify some ambiguity, or to show fraud, accident or mistake, the contract must be con- strued from the written documents. In a written contract the intent of the parties is the writing itself and when the words are clear and unambiguous the intent is to be determined only from the express language of the agreement. Felte Inc. v. White, 451 Pa. 137, 143; 302 A. 3 19.3 . ~ ~ The following significant facts show that, contrary to the picture which the Plaintiff paints, the written lease was not part of a transaction but complete in and of itself. It is not unusual for businessmen to consummate several transactions at one time. And it is not unusual for several different business en- tities to be involved in a multiplicity of transactions. But it is unusual, where a party executes a written agreement which is complete in itself to permit that party to raise the argument that an oral agreement made for a different purpose and with a different party makes the written agreement incomplete. The Plaintiff wanted to lease an automobile, but did not want to lay out the monthly lease dollars. Since the Plaintiff sold radio advertising to the Defendant, England Motors, Inc., under an oral agreement, it proposed to provide at least that amount of advertising com- puted at the lowest rate, if England Motors, Inc. would pay England Leasing, Inc. the monthly lease amount. The Defendant, England Motors, Inc., gained a superior rate for advertising they were purchasing anyway, and the effect of the agreement was to permit them to obtain more advertising for the dollar. The Defendant, England teasing, Inc., was not a party to this agree- ment and was in no way affected by it, since it was assured of receiving its lease payment as it fell due monthly. The written agreement executed between the Plaintiff and the Defendant, Eng- land Leasing, Inc., was for the lease of a car and is clear and unambiguous as to its purpose. No claim is made by the Plaintiff that there was fraud, accident or mistake in the execution of the written agreement with the Defendant, England Leasing, Inc. Thus, it is clear that parol evidence of a prior or contemporaneous representation or agreement, particularly where it is acknowledged to have been an agreement with another party, is inadmissible to vary a complete written agreement. Furjanick Est., 375 Pa. 484 ( ). The -5- _~ -_~ ;~ ~- ~ ~ parol evidence rule is a rule, not of evidence, but of substantive law. Thus, where an attempt is made to add to a written agree- ment, clear on its face, "facts" which would change the tenor or sense of the agreement, such "facts" are inadmissible. Sokoloff v. Strick, 404 Pa. 343 ( ); McWilliams v. McCabe, 406 Pa. 644; Rempel v. Nationwide Life Ins. Co., 227 Pa. Super. 87, 323 A. 2d 193 (1974)• The option clause in the written agreement is clear: "at the end of" the agreement does not mean "sometime after" the end the Plaintiff is obliged to pay One Thousand Nine Hundred ($1,900.00) Dollars to exercise its option. And it is clear on its face that it is intended that One Thousand Nine Hundred ($1,900.00) Dollars be paid, not in some other form, but in dollars. If the Plaintiff is claiming ambiguity of this term, can it be permitted by parol to invalidate it? The Plaintiff claims that a prior agreement gave it a right to assume the same transaction here. But as a matter of fact, it is evident from the Plaintiff's pleadings that the option in the prior agreement was taken in the time allowed and in an acceptable manner to the parties, wherein title was properly passed. Can the Plaintiff now claim unfamiliarity with the requirement that a positive act was required at the end of the lease term? The facts will show that the Plaintiff knew, or had reason to know, that the lease term was coming to an end. The facts will show that even after the date when the option could be exercised, the Plaintiff was given two opportunities to exercise the option according to its terms. Can it now be heard to say that it had a different under- standing? The Plaintiff was on notice that the Defendant, England Motors, Inc., was not going to continue advertising with the Plaintiff. When the agreement was made between the Plaintiff and the Defendant, England Motors, Inc., to provide advertising, the -6- ~; ~F ~ _ ~ Plaintiff was doing business in the area served by the Plaintiff. This situation changed on July 1, 1975, when the Defendant, England Motors, Inc., sold off that part of its business on the West Shore, i.e., in Cumberland County. The Plaintiff was on actual notice of this event, and even participated in negotiations concerning the possible assignment of its lease agreement with England Leasing, inc. to West Shore AMC-Jeep, the new company formed by the spin-off from England Motors, Inc. In Manley v. Manley, 238 Pa. Super. 296, 304 (1976)' the Court said, "if the matter proposed to be shown by parol is the subject of a covenant in the agreement, which is complete, such evidence to alter its terms cannot be received , (citations omitted), unless it is admitted that the whole of the agreement is not set forth in the writing". (Emphasis in the original). "It is clear", the Court went on to say, "that the burden is on the proponent of the parol evidence to establish such an admission of incompleteness in the writing by evidence which is 'clear, precise, and convincing'." (Citations omitted). The Defendant, England Motors, Inc., admitted in its pleadings that there was an oral agreement to buy radio advertising. The Defendant, Eng- land Leasing, Inc., did not admit to any oral agreement which varied the terms of its agreement with the Plaintiff, and in fact none existed. Its admission that it knew that an oral agreement existed between the Plaintiff and the Defendant, Eng- land Motors, Inc., does not involve parol evidence as to England Leasing, Inc.'s agreement. But even if it did, and even if the admission could be construed as a modification of the term of payment, this would not constitute an admission than the other terms do not represent the agreement of the parties. Scott v. Bryn Maur Arms, 454 Pa. 304 (1973)• Finally, none of the Plaintiff's averments shows clearl that the writing in question was not intended to express -7- ., ~ - .. ~ the entire understanding as to the lease of the vehicle, or that it did not properly state the agreement between the parties. The stated in Gianni v. Russell E. Co., parol evidence rule, simply 281 Pa. 320, 323, 126 A. 791, 792 (1924), provides: "Where parties, without any fraud or mistake, have deliberately put their engagements in writing, the law declares the writing to be not only the best, but the only, evidence of their agreement." (Emphasis added). Therefore, since we have shown that the Plaintiff's attempt to lump the Defendants together and to use the oral agree- ment with the one to invalidate the written agreement with the other, where no averments were made as to mistake or fraud or duress, it is respectfully submitted that this Honorable Court should find for the Defendants and dismiss the Complaint. Because the Plaintiff has, in an informal manner, in- formed the Court of its intent to have the testimony of the prior hearing admitted into evidence, the Defendants submit the following comment to support its objection to the admission of that testi- mony "Testimony given in a former proceeding is admissible in a subsequent proceeding if certain conditions are met. These are• (1) the witness is dead; (2) is out of the jurisdiction; (3) cannot be found; or (4) is sick or insane". Although a wag may raise an argument as to the 4th cri- teria considering the issues involved in this suit, it is the Defendants' contention that "none of these factors exist here. . all the witnesses were present at (the prior hearing). The ruling excluding the introduction of the (prior) record but per- mitting its use for cross-examination purposes was proper and did not in any way prejudice (the) appellant". Klima lJnemployment Case, 205 Pa. Super. 489 ( )• MELMAN, GEKAS, NICHOLAS & LIEBERMAN ~.. /~ _ _- y B Attorneys or De en ants -8- ,i • wloo, I.~c. , Plaintiff VS. . -,~, , << .~~: ~,;~,.'~~~;:~ .-Lu ~ OI:S , INS . and Defendants • ~~ IN TII~; COURT OF COMMON ~'LEA_S Oi~' Cu~:BERLAND COUNTY, PEi`ti'SYi.VAivTIA . NC. 1175 CIVI%., TERM, 1910 REPLEVIN BRIEF OF Pi~'~INT iFF ON PI1r:NTi~ F' S EXCEPTIONS TO DE C I S I O~y' OF TRIAL JUDGE I. HISTORY OF Tr:~ CASE T:iS 1S an aCtiGPL Gi repeV'~ri that iS befOre the COUrt On exceptions taken to the decision of the trial judge, The Y~onorable Cli~.ton ~:. Weidner. The decision was in the form of an order of COlir'.~ d~::LC:u June i7, 170, iri wh1C'C'i the Court granted a motioi7 for an invoiu~.~ary non-suit in favor of the Defendants. Tile COUrt order cage at the compiet~.on of the Plaintiff ~ s case in a iLon-jury hearinc; i:e1d before Judge Weidner. Previously, Judge GJeic:ner, after a hearing held on April 19, 1976, directed the issua:~ce of a writ of -replevin and ordered that possession of a certain vehicle be delivered to Plaintiff, WI00, Inc. upon the posting of a bond in the amount of $4,000.00. Subsequent to that order, the Plaintiff did post a bond but Defendants then posted a counter-bond and the vehicle has remained in the possession of the Defendants. II. STATEMENT CF FACTS This proceeding was instituted by the Plaintiff to recover a certain 1974 Javelin automobile that Plaintiff contends was wrongfully taken by one or more of the Defendants. ~ . <, • ~ P .i c..intiff is WI00, Inc., operator of radio station WI00, in Carlisle, Pennsylvania. De~er.dants are England Motors, Inc., the. operator of an ~~.,.erican :~:o`o-rs automobile agency in Iiarrisburg, and England Leasing, inc., the holder of record title to the vehicle and an apparent party to a certain lease agreement involved in this case. the basic issue is whether the Plaintiff has the right to recover possession of the automobile. As the order from which exceptions are being taken is the granting of an involuntary r~or~- suit, the specific facts presented at the nearing, and upon wi.ich Plaintiff relies in support of its exceptions, will be discussed under the ~^~-rgument which follows . III. ARGUMf?NT 1. TAIL NG~v-SUIT SHOULD BE REMOVED The eiuestion before the Court is whether the non-suit should be re~~,oved. In deciding this issue, the evidence must be considered in t~.e light most favorable to the Plaintiff and Plaintiff must be given the benefit of every fact and every reasonable inference of fact arising from the evidence and alI conflicts therein must be resolved in its favor. Sloss v. Greenberger, 396 Pa. 353 (1959). At the hearing, the Plaintiff presented testimony through its president, iiarold Swidler, its secretary and office manager, ivelyr~ Trimmer, and through certain admissions made by the Defendant at a prior hearing and in the pleadings. The evidence established, at least for purposes of this proceeding, the following facts: _2- .,~ ~ ; _~. • ~.. On or about January 1, 1974, ciarold Swidler, on behalf of t,c, P1ai.~tiff, entered into an oral agreement with Harold England on be~al; of Defendant En gland Motors. (i~T.T. 6,79) . 2. The substance of the ag-ree~ent was that the Defendant woulu trade the subject vehicle to the Plaintiff in return for radio adve-r~~ising to be broadcast by t;ze Plaintiff on Defendant's behalf. As pur ~: of tre oral understanding, Plaintiff signed a "leasing agreement" with Defendant England LeasirLg, executed on the tatter's be~«<f by iarold England. Nevertheless, tie understanding bet~~~een thy: parties was that Plain tiff would rot mace payments to England Leasing; but its sole obligation was to broadcast radio advertising and, to the extent payments were required by England Leasing, they would ~ve ":aue by England :rotors. (N.T. 6,14, l5) . :;. The Plaintiff performed advertising services for the Defer«unt continually and each month sent tn.e Defendant a notarized statement of the total amount of advertising services performed for the .~~o.th, a notarized statement of tine specific times during the month the advertising services were performed and a photocopy of a running statement of account showing the monthly totals and balances and reflecting all dealings between Plaintiff and England Motors. (N.T. 10). 4. The total amount due Defendant for the automobile, as con~irmed by the amount set forth in the leasing agreement, was $7,420.48. This was divided in the leasing agreement into two parts: $5,20.48 payable under the terms of the leasing agreement in equal monthly paymients for twenty-four months and $1,900.00 referred to in the leasing agreement as an option price. (N.T. 16,79). -3- ~~ 41 • • 5. Prior to the trade in question there were three other veriic:.es sold to Plaintiff by Defendant in much the same manner, with all pay:~ie.~ts being made only in the form of advertising services and with Defendant paying no cas:~ to Plaintiff for those services but giving, ~ ~air~tiff full credit on accourLt of the various purchase prices in accordance with the actual a:rount of advertising services pe-rfo~~r,ed. The last of t~~ose prior dews was also accompanied by a "leasing agreement". (N.T. 23,29,79). 6. As of shortly after October 1, 1975, Plaintiff, by virtue of t~.e advertising services perforn~.ed, paid Defendant in full fo-r a prior balance of $49.98, various otter charges made by Engla.d :'iotors during the period and~or the $5,520.48 portion of the trade price for the subject automobile. (N.T. 55,57,79). /. Trereafter, Plaintiff continued to perform advertising services each month through March, 1976, at which time the Plaintiff was e~~titled to a credit of $1,356.49 against the $1,900.00 (option prioo) rer~.aining due on tre automobile. (N.T. 12,57). 8. On or about Niarch 22, 1976, iiaroid Swidler met with t~oger %ngland, who then had taken over the operations of both Defendants. At that time, WI00 had performed advertising services in the amount of $1,356.49 above and beyond the $5,520.48, leaving $543.51 due Defendants in the form of additional advertising services. (N.T. 19,20,21). 9. On March 25, 1976, Defendants sent Plaintiff the 1976 regist-ratior. card and license plate sticker. Although some specific references to testimony have been given above, the whole of the evidence should be taken into considera- tior~ irl this matter. This evidence shows a course of conduct and -4- ~' ~- • • rze~e.a:: oz: dealing that existed over t~Ae years that should be he ii, ,r~i i.n determinirLg the extent of the rights that Plaintiff i.ad :.,:i tA.e vehicle. For exareple, even trough Plaintiff performed. adve,-i.:-_s.~Lng services for Defendant Erglar~d Motors over many years , lai;:.~:iff was never paid in cash but through trade of motor vehicles. (N. T. 63). Further, as has been stated above, Defendants recognized the cor;tiLling existence of tt~ie oral agree...ent and it must be apparent fror,~ a -reading of all of tiLe evidence t'c'.at the leasing agreement is no~;:LirLg .Wore than an accommodation that Plaintiff provided Eng~_..~nd Mo~.ors. If the leasing agreement was, in fact, intended to b~~ Ghe agreerner~t that governed the rights and actions of tre Defe,~~~ar.~s (arid t-he Plaintiff) , then why did not the Defendants demand the ~-~~i~urr: of the behicle in January, 197b? The only indication in tie evidence that a return. of the vehicle was demanded occured on Ma-rc.: 22, 197b, when i:arold Swidler visited Roger England. Until then. here was no request~~~ return. of the vehicle. (N.T. 64} . F;;rther, if the lease agreement had been paramount in the minds of D:~fendants why did not Defendants pay for the advertising services as they received bills? The original two year rental for the vehicle was paid in October, 1975, and, from then on, although England Motors was continually billed for these advertising services, nevertieless it gave no indication that it would pay for these services in cash and take the car. (N.T. b4). The order of court from which these exceptions are taken is very brief. The non-suit was granted on the basis that "the option was not exercised as required by the contract" and further that '"England Motors was not a party to the lease agreement and a remedy against them lies in assumpsit". -5- ,-~ ~1 • • T:z-roughout the hearil~g the Court reserved rulings on a ru.;~b~~r o~ ~oir.ts. These rulirLgs have not been made. Perhaps it wou~cl he I:elpfuhfor example for the Court to have specifically ruled on q~.estions ilivolvirg the oral agreement, prior agreements, etc. Nevertheless, it appears that the Court in its order has taker the position that the written lease document is controlling and ~_;~~;t the option, -required therein, was not exercised by the Plai.ti~f . she problem with this point of view is, first of a11, that it d~~c~s not give effect to the principle that all evidence should be corr.rues in light most favorable to the Plaintiff. Secondly, it involves a misinterpretation of the written lease agreement tSe.L . ~, ;Jr10r, Or COnter%poraneOUS CGliatE'.ral agreement, 1TI th1S case «Ax oral one, may always be sho~~rrl if it is admitted by both parties that the writing does not contain the whole agreement. A11i.;_~r v. Melvin, 315 Pa. 298 (1934) . "1'he test to be applied in determining whether a written agreer,ient supersedes an oral understanding is to compare the two and determine whether the parties would naturally include the orLe in the other. Bryant v. tSryant, 295 Pa. 14b (1929) Ir. this case, it is clear that the lease agreement could not possibly have been intended by either party to encompass the entire understanding between the parties. The lease agreement says nothing about advertising. The lease agreement says nothing about the pact that :v~OU would make no payments under the lease agreement to England Leasing nor would it be expected to. Truly, the written -6- r, • • leas--, ~~g-ee.r;.ent was not hing L„ere tear. a:~ accommodation to England :~o~:o,-s, ~:.e party with which WI00 was dealirLg. By having ZJIOG sign tze .~~:sL agreement, England Motors (o-~ England Leasing) could have the ~~;.:eeLi2c.t "discounted" at a bank and receive funds representing a r_ eirr..~u-rse~.~er~t to it of the value of the vehicle that was being give:, ~o plaintiff and thereby was being removed from Defendants' inve.x ~: a ry . Also of particular ir:~portance is the "option" itself. This option states as .follows: "At tre end of this contract I~JIuO, has the option to purc~.ase ~iis automobile at $1, 900.00" '~~~is so-called option does not set forth either tl.e iTieC".v:. Of ~~ayIPient Of the option pr1Ce Or t:ie tlme Of payment. LVOr does il.. sot forth the tir e for exercise of the option or a metrod of e.seLcise of t:~e option. ",~ leasing agreement was a document prepared by the ~. ~. Def;~~,:;,..~t:~ and, to the extent it is ambiguous, it must be construed against them. Certainly the option provision is ambiguous in the sense t~Lat those provisions that normally are apart of any option agreement are not set forth. Therefore, the Court and the parties r.~ust resort to what might be reasonable interpretations consistent with other parts of the agreement and the conduct of the parties. In this case, the Court should resolve the question of exercise of the option in favor of the Plaintiff. After October, 1975, the Plaintiff had already "paid" to the Defendants all amounts owing on ti:e basic "rental" and yet the Plaintiff continued to provide advertising services for the next six months, as it had done in tre past, and continued to send paid bills to the Defendants. -7- `-, ` ~ ~1s i:~ese. u_:~lis were not paid by cash p uy:.~ents to G1I00 from England :i0'~ U:"~~ , L. Clearly Iii~iSt have beeTl iridiCated t0 Englarid MOtOrS and En~_~~i~c Leasing) that the Plaintiff was continuing to make the payial~'~:~s ~`C`iilr2d Ori aCCGlii~t Oi trle `Ll-iChaSt? Of ti'ie Car. l~leSC. payn-:e-~L`s s:lould have been credited by the Defendants against file $1,90.00 ~:lat remained due as of October, 1975. pus, all of the Plaintiff's actions after October, 1975, were r~o:.s~istent with the "exe-rcise of the option". Moreover, none of ~.:~~~ act-Lons of the Defendants were inconsistent with this posi;.~_o.L until the meeting between. arold Swidler and Roger England on :; .,-c'.-. 22, 1976. Until that time, the Defendants had continued to uc~v~ru-ise on tiaI00 radio station, had continued to receive receipted bill..; fro,:. 5~JI00 and, in fact, gave WICO no indication that WI00 had "fai.._i'C~ t0 eXe;.C1Se" the Uptlon. EVCri abOUt the time Of file meeting there. ~'I4J sent to Plaintiff in the mail the 1970 registration sticker and ~ C~~iS tratlon Card, anOtCler iridiCatlon that the corporate n.aci.A,~4ry of the Defendants had accepted the fact that the "option rad ~~er~ exercised" It seems to Plaintiff that if England Motors, arLd/or England Leasing, had at any time intended to require a cash payment of $1,900.00 to be made by a certain date, it could have either provided for same in the lease agreement or, and this is perhaps more important, it could have told WI00 this. she real problem here seems to be that England Motors and Engla~~d Leasing had a "charLge of administration". The new chief execu.ive officer apparently doesn't want to honor the agreements made by his predecessor. Nevertheless, we are dealing with corporate entities and the fact that new executives do not like contractser~tered -8- ~L~ U into ~~; ~;;~ir predecessors ire office should not make tr.e corporation. any ", ~~ ~~L:~ s bound by the:... T.~-.e non-suit should be stricken. and anew trial should be orde~_~~. ~. "._5 :~r~" Gi~~ Cr REPLEV.~ ~' SHOTULD LIF~ AGc~I?~TST ENGLAND MOTGRS AS ~,, ~~L ~~ EN~L.AI~TD LEASING. .'or purposes of the foregoin; argument, we have sometimes rep-eA:-eu to the Defendants interchangabiy. There may have been two sep~.-.,~.tu corgi:orations involved but, as far as the Plaintiff was co;~c~a~~a~:c;, •~.t was dealing with one. The dealings were negotiated ~•~it ;e ~..dividual on be hall of both Defendants and, from the • ~- •- ~ P~a:.:~.~.~y point of view, it eras merely a question of trading; radio advcr_ `~siii~; for a vehicle. The chief executive officer of both corlao~,~tic.s had admitted taking the vehicle and, irrespective of w:ic'.-~ `o-~porate entity has legal ti le, it is clear that both Defu:~d~t,:~s are acting ir. concert and the vehicle is irL possession of uG;~.. The action, therefore, should lie against bath. The Plaintiff freely admits that a certain sum of money, namely the difference between the $1,900.00 option price and the amount of advertising rendered after Goober, 1975, should be paid to England Motors and/or England Leasing in return for title to the vehicle. If the non-suit is lifted, it would be lifted as to both Defendants so that this entire matter can be properly concluded. 3. GT~iER EXCEPTIONS TAKEN BY PLAINTIFF. Ire its exceptions to the order of court, the Plaintif questioned certain evidentiary matters and there is also the c~iuestion of the rulings reserved by the trial judge -9- -- ~, These matters can properly • • be c,~r.sid:-.red at a later ti.,~ e if Plaintiff' s request for a :Lew trial is granted. It does not see:Lz rLecessary that they be considered now. ~V. CGNCLuSIGN reviewing the evidence in a lib:t ;most favorable to the Plai~~:~f~, it is suggested that trLe Court should find that thcw~. exis~ed a:. agreement between the parties for tae trade of a motor vehic~_e c.~ advertising. The written lease agreement did rLot cont~~l ~~Le arrangemerLt between the parties. :~~,vc~;. if the lease a~;reen:ent were to be considered critical, file c~,~c:Je.iGn of the option should be resolved in favor of the Plai,. ~:ifa~. The agreement itself is silent on the exercise of the G~JL"1:_i-, aii\:i all Of ti`le aCtiUT2S Of the parties indicate that, t0 the exte.-.~. a~ `~;ercise of th~~ option is material, there was such exercise. Tire non-suit should be stricken and a new trial ordered. Respectfully submitted `, _s` ~ _ ~ `~ ~ ~ . '~ _ William ~. Gross Edgar R. Casper Krark, Gross & Casper Suite ~-i, 1801 North wont Street Harrisburg, Pennsylvania 17102 Attorneys fo-r Plaintiff -10- ",~ ~ :~. • LAW OFFICES MELMAN, GEKAS, NICHOLAS 8c LIEBERMAN EARL J. MELMAN GEORGE W. GEKAS STEVE C. NICHOLAS ROBERT B. LIEBERMAN JACOB A. MYERS JAMES L. WALSH ALAN P. MARIAN MILTON BERNSTEIN June 10, 1976 The Honorable Clinton R. Weidner Court of Common Pleas Cumberland County Court House Carlisle, Pennsylvania 17013 In re: W100, Inc. vs. England Motors, In and En land L nc. o. 117 Civi Term 1976 Dear Judge Weidner: 405 NORTH SECOND STREET P. O. BOX 902 HARRISBURG. PENNSYLVANIA 17108 TELEPHONE (717) 236-9391 FILE NO: 76_304 ~,- PAD In preparing for trial on June 17, we note that William M. Gross, Esquire, attorney for W100, had notified you in his letter of May 13, 1976, that he intends to request that the transcript of the testimony taken at the hearing held April 19, 1976, be admitted into evidence. Although his request was informal in nature, we feel obliged to notify you in advance of the trial that we shall vigorously object to the admission of that testimony except as it would be allowed for purpose of an admission. The witnesses are available for trial, the purpose of the hearing in which that testimony was taken was limited to the single issue of probable right to possession of the goods and the issues are yet to be adjudicated. Ver~r truly yours, vGEORG~fW. GEKAS GWG/njb cc: William M. Gross, Esquire (,; . , ~; I1 LEASE AGREEMENT (CLOSED END LEASE) Agreement No..- - - _. _ . This agreement made this _. 1st _.._ ._ day of ___January 74 _ . _.. _. _ __ _..._.. 19 - __.._.._ between._...._....England Leasing, Inc. 425 S Cameron St., Harrisburg, Penna. 17101 --. -..-- - _..__ (hereinafter called "Lessor"), and ...__. _ _.. -...___WI00 . -..__ _ ___ . __ __. _ 33 W. High St., Carlisle, Penna. 17013 (hereinafter called "Lessee"), WITNESSETH: THE PARTIES HEREBY MUTUALLY AGREE AS FOLLOWS: DESCRIPTION OF LEASED VEHICLE: Lessor hereby leases to Lessee and Lessee hereby hires from Lessor, on the terms and conditions herein provided, that certain motor vehicle, as follows: YEAR MAKE MODEL BODY TYPE V.1. N. 1974 Javelin AMX 79-8 coupe A4C798Z217707 EQUIPMENT: PLAINTIFF'S • F EXHIBIT -i f '~~:.~ - --=-~. -,~. C BK PS ASW ING VG TG LG PG PP2 AC RWD RFM SMG K724 - L132 RENTAL PAYMENT AND TERM: Lessee agrees to accept the above vehicle at the rental rate specified. The term "vehicle" when used in this agreement shall mean motor vehicle leased hereunder by Lessee. Lessee agrees to pay each total monthly rental in advance without deduction, setoff or counterclaim, on the dates and at the places specified. If the delivery date is other than the first or the last day of a month, the monthly rental shall be prorated for that month. The term of this agreement with respect to the vehicle shall be as specified, and shall commence on the de- livery date of such vehicle. This agreement is one of leasing only and the Lessee shall not have or acquire any right, title, or interest in the vehicle except the right to use or operate it as provided herein. Monthly Rent Sales Tax Total Payment $_....217.00_._ $ .. 13.02. - $230.02 ... per mo. Term of Lease Security Deposit Delivery Date __ ._24...___MonthS $ __ ___ 1-1-?4 Rental to be paid on .._____lst day of each month to: -._ England Leasing, Inc. at: S. Cameron St , Harrisburg, Pa. 17101 -- _.. __ .... - _ ... . Vehicle delivery ... . ng_ an Motors Inc 425 S. Cameron St., Harrisburg, Pa 1-1-74 _. _._ .. _. _ -.. AME __ - ___..._... - _ Vehicle Return ._...._..._... ..._..._....__._....... ss City State FORM AM 3259 REV. 7-72 ~~ 4 • ``~ •aseal sly ~o waa~ aye 6ulanp alolyan pies ~o uo!~eaado ao asn ay; woad 6ul~lnsaa ~(~aadoad o~ a6ewep ao ~(anfu! leuosaad ao~ swlelo Ile pue ~(ue woad 6u!;Insaa saa,G ~(auao~~e pue s~soo ~anoo Ile pue `s~uaw6pnf pue s~lns uol~oe `~llllgell `spuewap `sw!elo yons Ile pue ~(ue woad ssalwaey aossaq ploy pue anes pue /(~luwapul lleys aassaq •alq!suodsaa s! /(;aed pa!y} e yo!ynn ao~ alolyan pascal a o~ a6ewep ao ;o ssol ~(ue ao~ uol}oalloo u! aossaq y;!nn a;eaadooo o~ saaa6e aay~n~ aassaq •Aaessaoau ~! waap ~(ay~ se `ways y~!nn a}eaadooo pue `~Cuedwoo aoueansu) aye `aossa-I aye o~ s~aoda~ ~(aessaoau aye a~lew ileys aassaq aye `~(~aadoad ao /(anful ~tl!poq woad 6ul~lnsaa sa6ewep ao} paouawwoo uol~oe ao apew s! wielo ~(ue }uana aye u! pue `~(la~elpaww! aoueansu! a6ewep ~(}aadoad pue ~(anfu! al!gowo~ne }o I(ollod ay} 6u!nss! ~(uedwoo aoueansu) ay} /C~!~ou Ileys aassaq ayl •~uaplooe ue u! panlonul uaaq sey alolyan pascal a aanauaynn leo!~oead se uoos se aossaq aye ~~I;<ou lleys aassaq •uoseaa ~tue ao~ ~(o!lod ~(ue ~o uol}ellaoueo ~o aaansu! aye woad paansul aye o~ aol~ou ua~;lann s~(ep (p G) ua~ uey} ssal }ou 6u!alnbaa ~uauaasaopua ue aeaq lleys salollod aoueansu! lld 'aossaq aye ~(q play aq lleys pue `aossaq aye ~o aweu aye u! panss) aq Ileys salollod yons ~o aoua;s!xa aye 6ulouap!na aoueansu) ~o sa~eol;!~aa~ - ---- - -- -- -- -- -- - - - _ ~o sllwll wnw!ulw yIIM aoueansu! a6ewep ~(~aadoad _......._.... _ ....... 000 `OOS-000 ~ OSZ o s~lw!I wnwlulw y;!nn aoueansu! /!;!l!gell o!Ignd •s~unowe 6ulnnollo~ ay; u! aeadde ~(ew ~saaa~ul alay~ se paansse aye se o}away sal~aed aye 6u!weu `aapunaaay alo!yan 6u!aanoo aossaq o~ alge~daooe saluedwoo u! aoueansu! `~uawaaa6e sly ~o waa~ aal~ua aye ~noy6noay~ aoao~ u! ule~ -u!ew pue aanooad `asuadxa unno s~! ~e `Ileys aassaZ •aossa-I aye ~o s~saaa~u! aye aanoo o~ panss! aq o~ ~ollod aoueansu) sly) •aoueansu) /(q pa}esuadwoo }ou ssol ~tue ao aaueansu! vans }o suo!s!noad algl~onpap aye }o an;laln ~(q paaanoo you saledaa ~(ue `/Ced pue `ao} alge!I aq Ileys aassaq ay; }eye poo}saapun ~(Issaadxa s! ~I •uo!s!noad algl}onpap 00`OOI ,e y}!^^ aaueansu! uols!lloo pue `aoueansu! ~~ay~ pue aal~ `an!suayaadwoo ~uawaaa6e sly ~o swaa~ aye ~noy6noay~ ___ aoueansu ~soo unno sll ~e ule~ulew pue aanooad Ileys aassaq •aossaq anp ~uaw/(ed le;luaa ~xau aye woad pa~onpap aq o} }ou aae aoueua~ulew ao~ saledaa algesangw!a~l ~}uaw~(ed ao~ }sanbaa ~o aw!~ ~e aossaq aye o} papaennao~ aq Ileys saledaa ~(aessaaau aye 6u!ouaplna ao!onu! pazlwa~! leul6lao aye fey} paa!nbaa aay~an~ s! ll ~pawao} -aad aq o~ s! ~{aonn aye }o uo!~ezlaoy~ne aao~aq aossaq ~o lenoadde ao!ad ule~go o~ aassaq aye aalnbaa ll!M saelloP (00.OZ$) ~~uaM} ~o ssaoxa u! saledaa ao~ saan~lpuadxa ~(uy ~uol~e~s a!edaa alge}Ins ~(ue ;le pawao~aad sa!edaa aney ~(ew aassa-i aye `~(oua6aawa ue }o aseo ul •aseal aapun alolyan ~o a~{ew ay} ~o aaleap aeo nnau pazlaoy~ne ue ~(q pawao~aad aapunaaay pascal salalyan ~0 6ulo!naas pue saledaa lle aney Ileys aassaq •6ulysenn pue a6eao}s `I!o aul6ua `au!lose6 ~(aessaoau Ile 6u!plnoad ao~ alq!suodsaa aq lleys aassaq ayl 'alo!yan yoea ~o uol~eaado ales aye ao~ paa!nbaa saal~ ~uauaaaeldaa nnau auou pue sa6ueya as}I!~ l!o pue uo!~ea!agni `saiedaa aoueua}ulew leo!ueyoaw lle 6u!pnpu! `~(}ueaaenn saaan}oe~nuew ay} ~o uol~ep!len Iln~ aansu! o} paa!nbaa aoueua~ulew anl~uanaad Ile wao~aad Ileys pue `lenueW s,aaunnp aye u! paglaosaad wea6oad aoueua~ulew ay} ap!n6 a se 6u!sn aapao 6u1~{aonn pue uol~lpuoa 6ul~eaado s~iedaa pue - aoueua;4uiew pooh u! alo!yan yoea ule~u!ew pue daa~l Ileys - - __ __ aassaZ •aassaq ay; }o ~~lllq!suodsaa ay} aq lleys aoueansu! ~(q paaanoo }ou alolyan aye o~ a6ewep ~(ue ao azaaa;<-!due ~(ue ao aa~enn `aseaa6 `l!o ~noy}Inn alo!y -an ;o uol}eaado se yons `asnge pue }aal6au o} anp a6ewep ~(uy •pa}daaoe aeann algeuoseaa `aledaa pue uol~!puoo pooh u! `y~!nnaaay} uol~aauuoo u! paaanllap ~uawd!nba pue sa!aossaooe Ile y~!nn `aossaq pue aassaq y~oq o} alge~daooe ~Ilen~nw uol~eool ~(ue ao `~aanllap ~o ~u!od a~oiya~ aye }e aossaq o~ alo!yan p!es aanllap pue uan;<aa lleys aassaq ay} `aseal s!y~ ~o uol~ealdxa uod~ ;o uan~a~ ~ ~ Assignment Lessor may assign this agreement along with collateral documents without prior consent :~f and Use Lessee to financial institutions as security for indebtedness of Lessor, and all rights, title, and interest of Lessor in this agreement shall enure to the benefit of the assignee and its successors and assigns. Lessee shall not dispose of, assign or transfer said vehicle or any interest therein under this contract. It is further agreed that all persons engaged in the use or operation of any lease vehicle shall at all times be employees, agents or persons des- ignated by the Lessee. It is further understood that the use of said vehicle leased hereunder will not be for the transportation of persons or property for hire. License and Lis.~or__._.____.______________________________________.________ shall provide at its own expense State license Registration plates, taxes, and inspections required to operate said vehicle for each calendar year. Should the vehicle be transferred to a different state during any calendar year the Lessee shall assume complete responsibility and shall purchase at its own expense the necessary state license plates and any other fees or taxes required to operate said vehicle. Lessee _ _ _ shall pay all state sales, use and rental taxes in the state where vehicle is originally scheduled to operate. Any and all additional state or local excise, personal property and Ad Valoram taxes now and hereinafter in effect with respect to said vehicle by the reason of leasing vehicles hereunder shall be the responsibility of the Lessee. Use It is contemplated by the parties to this agreement that the vehicle described herein shall not be driven in excess of____,42,000 ..thousand miles during the term of this lease. In the event that said vehicle shall be driven in excess of the above mileage, then in addition to the rental stated herein the Lessee shall pay to Lessor_.__._ fide____._.___ .............cents per mile for each mile in excess of the above said mileage. This amount will be paid to the Lessor upon the termination of said lease. Notice Any notice given under this agreement by either party shall be sent forth by registered mail to the address contained in this agreement. Indemnification Lessee agrees not to hold Lessor liable for the loss of any profits or any damage or failure by the Lessor to render any service or supply any vehicles under the terms of this lease agreement should the failures result from strike or other labor troubles, fire or acts of God, or any other causes which are beyond the control of the Lessor. Legal Lessee agrees not to permit the vehicle leased hereunder to be used in violation of any Covenants Federal, State or Municipal statute, law or ordinance, rule or regulation applicable to the operation of such vehicles and shall indemnify and hold Lessor harmless from any and all fines, forfeitures or penalties incurred by Lessee for traffic violation or for the violation of any Statute, Law, caused by the confiscation thereof by any public authority by reason of illegal use thereof by Lessee or its agents, servants or employees. Lessee shall be liable to Lessor for loss of said vehicle resulting from conversion or larceny by any of the agents, servants or employees of Lessee. ~! i ` ;~. _.~ . ~ ~~,~.~. ~ , ` _ .. all~l •ua;;lann anoge }sal; aea~( pue yep ay; pa;naaxa aq o; s}uasaad asay; pasneo aney aassaq pue aossaq `~O~aSHM SS~NlIM NI '00'0061$ ~~ aZtgowo~nE suoi~a~ap pug srti~ as~ego.xnd o~ uoi~do auk seq `OOIM ~o~.z~uoo stuff ~o pua auy ~~ SuOisinOaC :nnolaq pa;sll aae `~(ue ;l `suol;slap pue suolslnoad leloadS le!oad~ •aassaq ~(q pa6palnnou~{oe ~(gaaay sl ~(doo yolynn ;o ;dlaoaa `aassaq o; paaanllap ;oaaay; ~(doo e pue a;eolldla} ul pa;noaxa sl aseal s!yl •o~aaay sal~aed ay} ;o yoea ;o ;ua6e pazuoy;ne ay; ~(q pa}noaxa ~(Inp pue 6ul;lann ul aq ;snw }uawaaa6e sly; ;o a;ep ay} o; ;uanbasgns apew aq ~(ew ;ey; uolslnoad ~(ae;uawalddns ao suoi;eaalle `s;uaw -puawe buy •su6lsse pue saossaoons `sani}e}uasaadaa le6al `sao;ea;siulwpe `sao}noaxa `salay clay; pue sal;aed and}oadsaa ay; uo 6ulpulq aq lleys sal;aed ay; uaann}aq }uawaaa6e ayl •paaanooo pey aanlenn yons ou ;l se ;oa;;a pue aoao; Iln; ui ulewaa o; anul}uoo Ileys ;nq `suol}ipuoo pue swaa; yons ~(ue 6ulnlenn se as};eaaay; pang}suoo aq ;ou ~leys `;uawaaa6e sly; ;o suol;lpuoo ao swaa} ay; ;o aouewao;aad ay; uodn ;slsul o} ~(;aed aaylla ;o aanlle~ aanie/y~ •;uawaaa6e sly; ;o suol}lpuoo pue swaa; ay; ;o ~(ue wao;aad o; ~~!I!geUl ao aanlle; s,aassal ay; ao; ao;uawaaa6e sly} aapun paalnbaa s;uaw~(ed ay;;o due a~{ew o} aanlle; s;l and ~~!I!ge1i ~(ue ;o panallaa aq ;ou lleys aassaq `ydea6eaed sly} ul paglaosap se s}uana ;o uoseaa ~(q aseal sly; a;eulwaa; o; ;oala Ileys aossaq ay; ;I •aassaq ;o ~(}aadoad ay; ;o Ile ao ~(ue ;sule6e palnal ao apew aq o; uol;noaxa ao ~(nal `;uawyoe;;e `ssaa;slp ~(ue paaa;;ns ao pa;;lwaad aney Ileys aassaq ;l ao `s}asse s,aassaq ao; pa;ulodde aq Ileys aanlaoaa e ;l ao `aassaq ;sule6e pall; aq Ileys /~o;dna~{ueq ul uol3l;ad ~(ae;unlonul ~(ue ;l ao sao;lpaao ;o ;l;auaq ay; ao; ;uawu6lsse ue apew aney Ileys `~(o;dna~{ueq ul uol;l;ad ~(ae;union a pall; aney Ileys aassaq ;l `aassaq ay; o; aol;ou ;noy;inn aseal sly; a;eulwaa; o} ;u6la ay} aney Ileys aossaq •aossaq ~(q pa~anoul saa; s,~(auao;;e algeuoseaa pue sasuadxa `s;soo ~(ue aossaq ~(ed o; saaa6e ~tgaaay aassaq uoaaay; pue aassaq ay; ~(q yoea~q aay;o ~(ue aoao;ua o} ao aossaq anp ;unowe due ;oalloo o} ;oaaay; amen ay; aanooaa o; ao alolyan ao;ow pies ssassodaa o; s6ulpaaooad le6al a;eladoadde a;n}l;sul o; ~(auao;;e ue ~(oldwa o; ;y6la ay; aney Ileys aossaq `;uawaaa6e sly} ;o s;ueuanoo pue suol;lpuoo `swaa; ay} ;o ~(ue ul s}Ine;ap aslnnaay;o ao aassaq woa; aossaq anp awooaq o~ ao anp scans ao cans ~(ue ;o uol;oalloo ay; ~o; aney dew aossaq se salpawaa gay}o yons o; aolpnfaad ;noyllM pue `aol;ou ;noy3lM ao y}inn 'o;away; payoe};e ;uawdlnba pue salaos -saooe Ile pue aapunaaay paseal alolyan ao;ow ay} ssassodaa pue ;uawaaa6e sly} a}eulwaa; o; ;y6la ay} aney Ileys aossaq `;oaaay suolslnoad ay; ;o ~(ue ao aapunaaay s;uaw~(ed ay; ;o ~(ue ul ;Ine;ap ul aq lleys aassaq ;uana ay; ul pue }uawaaa6e sly; ;o aouassa ay; ;o sl awil ~~ne;aC ~ . • . ,~ _ - ~' l° ~TAYEEi~NT Olr A~~(IUNT ~A~i~ ~fiA'ii(1E9 tai~Q AE's PLAINTIFF'S ~~ 1"d. iI i~1 ~~ a ~ EXH161T -, ~ / -f f ~~,siisl~, Pa. 13®l~ r~ O 2 A 4?5 c~,a.;,~l t",,c6ercn i;reef ' ~ ~1I~~Y•r~ slra:a~~', a en~~s,y-L~~a.aiia _._ ._ n... ____ ,___ ~.~._~_______~. p~ ~fscr fsion _.. -.~~ t cbit ~ Credit Rota Baiancc ~~atc ._. ....v ~ _ ~. A ~ f ~~ ~ y~ ~< 7C' ~Jlz11e 1 ~1 ~~ ~ ,~ 3 ~ ~ . Z~'.: __. ~ _..~ . _ ~ ,~ -z .) ~' ~ 1 iZ ~ ~~ ` i) ~ T~tz1 lj 1 ~p 1 ~ ~~ 1 a • r? ~ ._...__..._,._. ._. ___.. ,..~. _..~._.__-..~ t _.. ~ ._~~ I ...._. . __ __._ __.. , _ r P ~ "~ 9 ~ \~ _n~_ . _.. _~ ._... _____. _.._ q. .._ ___.. _ _ _ _.. ~( r------ i f ~ ^ . Try ~ ._.e_. _~ _.r.--_._..... _ ._ ~ ~ 1:! t~ . tJf~, ~~, a ~~4 . S~ ' ~_ i~ s, ~! ~ i~)~ ~.r>~: -_1. ~ __,_,~._... 1.~~E ~ 2.`,t)~ a)~e 1 31 1135.7.3, _ T ~~ 1/4 ~ lt(~.TA~TT_, 1)',~'~_tt'`?_tY ~'E~IC'~. t~`y ~\1~I~l~w~•1(~C1;)e ~x•.'~~4 G'.C .. _.. ~..__......._ .j .___ ' ~ ~ Cl ~~s}~~ ~1c~o r~ ~ - T3<~~_~r~c~ c1t(e .' I l '? ~ t v~~ ~ s~ , OG~ .?E n 1--31 ~ __ 3~1 ~0 4.nCr ~, -' _~_. , ~~ ...~ ___.~-.._a_._____.._.~__._~_._ --~._.. .-_ ...._.___ _ Pay l aa+ Amd. q r ifljfllt ~..J~Uitifl . ~ .. .. a ' STATEa9CNT OF ACCOUNT ~dAD10 ~~'~1YIOE3 t°!S®0 A~r1 3~ tJ. ~1~~~ ~1. C~so~lE, ~~a, ~'&~~3 e ENGLAND MOTORS ® 425 South Ct~c~c~ron StreQt • Harrisburg, 1'ennffiylv~nia .~ TRADE FOR '74 AMX ~~ Date Descri lion ~ b D No. Rate e it Credit Date Bolonce FE UAR 1974 BROUGIiT FOId~~IAR cr 45R9.4~ 4 1 57 4.00 Rtarch 1-31 °74 225.00 cr 46~i1 .4~ 5 1 56 4.00 Air 1 ~3U 2?4.00 ck 443 . ~~ h/1 57 X1.00 ~~a,y 1-31 22.£~.OU cr 42O9.~q X11 ~+. 00 Jtzne 1- 0 2?8.00 _ cr l X81 A 1~ 8~1 _ _57 4.00 Jul 1-~1 22$.00 cr 3713. ~-~~ _ Inv ice#6770 7 5 74 112.12 cr _ 375; f3_', 4.0o Aug 1-31 228.00 _ cr 3~37.5~ 9~1 .00 Au 2 - 1 (~ 0p cr 3472.58 10L1 __ _LO 11~ .00 4 00 Set 1-18 eft 1-~0 0.00 228.00 cr cr 1k}2. 8 .~.,, r~ `L.. 2~1la.58 11 1 57 ~H.00 Oct 1 - 1 ?~~', r;n cr 2fi8h. 58 1 ^,/1 ~r~ ~F.0~; T3ovember 1-30 2?~.00 c~~. ~)4. ~~,, gip, 1/1 r7 '+.~~ P ~7r ~ ~~ Dec 1- 1 ~"''.~`('~ ? ~+q cr ~ ~ ~~ 2,^~? 0 . 7 ~~~ c)~ 1~^Cn .T^.n 1_,.~,~ t^r '?^!a1n ,ter, ~n~~ n~7 ~1 ~+/1 25 4.00 ~+.00 Feb 1-28 ~1ar 3-31-Jeep 228.00 100.00 cr cr 1808.0. 1708.07 ).+~1 5 l 4.00 S~1ar 1-31 228.00 cr 1 X80.0 1 s \ • .a ;. _ / STATEMENT OF ACCOUNT } ~_' -_ RADIO ST~TIOF~ 1^~I00 AM ~/1®® P: ®. Box 399 Car~lsle, Po, 17013 '~ ® ENGLAND MOTORS ® 425 South Cameron Street { Harrisburg, Pennsylvania -- TRADE FOR ~ 74 Ar'Di Date ~ Descri do ~'-'-"--- j°. kr,te Debit Credit -._.,~_ CH ' 75 BAt a NC ~--' Date Boloncc , . BROUG ' FORW 4.00 A~r 1- 0 -_`-- cr 1 ~+80.07 -~--. . 2 _ 228.00 4.00 A r4- 0-Jee -'- cr 12 ~-2 0 100.00 ' nvoice of 3/25/ 5 - cr 1112.0 44 -- 141.44 4.00 a 8-31 JEEP cr 1293.51 6/1 1 176.00 4.00 Ma 1 _ _ ' Cz' 1117.51 ~~ ~~ '-=---~--~ 5 1 , ` ~ ~ 52.00 ~.~)0 J~anc1--?r~_~t;~ i%t1°; ~~'~'~ cr 1065.51 . ~ 61 4 00 ~ - 11 /1 _ 56 . Sept1-30®~.1Ytr 24+.00 4 pp , -~ r ' , .5 pct 1-31-11m.Mtr ___ 224.00 1 cr ~~° 2 1 ~ 4 00 Nov 1-30-~rn.Mtr 244 00 1'36`'9 - 1 61 ° 4.00 Dec1- 31-Am.Mott 244 0 380°4g ? 1 3/1 61 ~1 ° 4°00 Jan1- ~ / },~ 1 6AmsMt 8 244e0 624°4g 4.00 Feb 1-2g_~tro 244°0 868.4 1112°4g 1~ ~~~ • t1~~3~5~~ig ke [~ 1 ~ ~~~~ ~ iP 1i N..'.}IsG It "" ._ w taraP tPu?~clra otn -- ------ _-__ CP ._..----- 7'~t Af9~~ZILtJf'Pt t9TRS --.. _ __ _.._..~ I Ae:C74~~a177U7~ ~ ~ ~-_------ __ h9AiVUFACYUaERS ~ CR 1 N S ~ _ ~~~~ yypp j. . __ 1 ~~ GY®oo~ 3 FI Fi I\ Fi ~ F`C .r. ~~~., COGFn UU/ -...... __.._..-_ RVIR.+.iION ~JA7E_ V:JlD IINLE 55 bt1CPDAIEU '~ _ TYt ~ ~ A~ __ _ _ h VAIdDAT~p o M AR i7 1976 ~~' ~CP~G~AND LEASING [NC .;; X25 S CAP1ERON ST ~~ - hiARRIS6URG PA 17101 4,; n ~ ~ , ~. :~ __ ---- ~~; ~,~ ~ ~: tip: 7 .- .~. .m, ~, . P ., ~~. ,,. !~ 'jC.7, ` ~ , n Cr MNld} ~JEl1Li}I ~)x p ~ sfNNSYtJ.1Nd1A UEPAR1FrIFFVY dF I ,11Cd,~'%F J t'!)'~E PASS-:~:1+>CR StRX ~~~J 7 " ~ {~~ ~ ~} i L i µ{ r .lob cTa ;,q(:),c?I"°: KCI.E StEL•ISiRA. i~C'~*d c \ .' ~ ~) ~~ tl~ --~ H~ L) ~. ~ :. II; r._i ,. YJ. „ '1 .. t ~' rfi _. ~_ .. f F \ ~ ~_ 1 e ~ _~ p ~ ` } t_>> I I F r_, x U `~ ,.~. ~~ '_. -ENe~e. ~~renn ~ ~. N.J. 1 ~~~~ i ~~ ~ ~i ~ ~ t~.. ~ y yw bi ~,~. _ -- _~ _. ~, C~ v m z ~ D f~ D J O ~~ - ' , -. ',~ PJ t.f'~. '~~ `~ - ~ , - J .F=' ~1, q ~ ~ 8 ! e ~ ~ ~' r~~s ~~ s. ~ F , i Y i ~• ~ ~ ~~ kjJ~ r r 7 ~._~ d Ame~can ,, Motors LEASE AGREEMENT (CLOSED END LEASE) PLAINTIFF'S EXHIBIT e ~.~y,i. Full or Non-Maintenance - - - Agreement No.---- -- - -- -- - England Leasing, Imo, - - --- -- Name of American Motors Lease System Member) 20th December ~ 71 This agreement made this_.-..._.----_-----_--_--_-- -.day of- - - - - - - ----- 19 - - between Bngland Lensing, Inc. - - ---- - -- --- - -- -- -- --a corporation, with offices 425 S. Csmeroa St., H,arriaburg, Penna. 17101 in - - -- -- -- -- --- - - _...-._hereinafter referred to as W100 City and State ,Lessor", and- -- - - - -- - - Carlisle, Penna. 17013 - - -- - - - - - -- of--- - - -- -- - - - - -- --- - -- -- -- -- - hereinafter referred to as "Lessee." WITNESSETH: Lessor hereby agrees to lease to Lessee, and Lessee hereby agrees to hire from Lessor for the term and at the monthly rental rates hereinafter specified, the following automobile(s): MAKE MODEL BODY YEAR STYLE V.I.N. RENOTAL RATE RENTATL TAX EQUIPMENT: 1972 Ambassador A2A8g7P170869 $8 12 ~0 ~za~ ~r~ 822a,~ tot and such additional automobiles as shall become subject to this lease agreement in the manner hereinafter provided. Lessee may, by written request to Lessor, order additional automobiles from time to time at a monthly rental to be agreed upon between the parties. Such additional automobiles fur- nished by Lessor pursuant to such request shall be subject to the terms and conditions of this agreement unless otherwise provided in writing by the parties. Terms It being expressly agreed that this is a contract of leasing only, and that the Lessee shall acquire no right, title or interest in or to the property described in this agreement. The lessor does hereby agree to lease to Lessee, and lessee hereby accepts from Lessor, the Motor Vehicle(s) as described herein or in attached Schedule A and subsequent Vehicles taken all of which will be subject to the conditions and provisions of this lease. FORM AM 3259 '~ / C~ pUe `~(uedwoo aoueansu) ay} `aossa~ ay} of slaoda~ ~(aessaoau ay} a~{ew Ileys aassaq ayl `/(laadoad ao /(anful ~(l!poq woa; 6ulllnsaa sa6ewep aol paouawwoo uolloe ao apew sl wielo ~(ue Juana ay} u! pue `~(lalelpawwl aoueansu) a6ewep ~(laadoad pue ~(anful al!gowolne 6u!nssl ~(uedwoo aoueansu) ay} ~(;Ilou Ileys aassaq ayl ~luaplooe ue u! panlonul }o ~(ollod ayl a ~(i ou e s aassaq uaaq sey alolyan paseal a aanauayM leolloe~d se uoos se aossa~ yl }.l II y •uoseaa ~(ue ao; ~(ollod ~(ue to uollellaoueo to aaansul ayl woa} pa~nsul ay; o} aollou ua}IIaM s~(ep (p L) ual ueyl ssal lou 6ulalnbaa luauaasaopua aossa~ ay} /(q play aq Ileys pus `aossa~ ay} to aweu ue aeaq Ileys sa!ollod aoueansu! il`d ' 6uloua ina aoueansu! ;o saleollllaa~ ay} u! panss) aq 112ys salollod yons to aoualslxa ayl p. - - -- ~ -}o sllwll wnw!u!w yIIM aoueansu! a6ewep ~(laadoad - - • }o r - - - - - - - - bbb bb5 = bbb z inn aoueansu! ~l!I!ge1l a!Ignd 'slunowe 6ulMOllo} ayl u! aeadde ~(ew lsaaalul sllwll wnw!ulw y}. 6U11UeU °aapunaaay (s)alolyan 6ulaanoo aossa-I aiayl se paansse ay} se o}away sallaed ay} o waal aallua ay} lnoy6noayl aoao} u! of algeldaooe sa!uedwoo u! aoueansu! `luawaaa6e sly) }- - - sagBS'T--- - - --- - ulelu!ew pue aanooad `asuadxa unno sll le `Ileys •aossa~ ay} }o s}sagalul ay} aanoo o} panss! aq o} ~allod aoueansu! sly) 'aoueansu! ~(q palesuadwoo lou ssol ~(ue ao aoueansu! yons }o suo!s!noad algllonpap ay} }o anlaln ~(q paaanoo lou saleda~ ~(ue `~(ed pue `ao} alge!I aq Ileys aassaq ayl ley} poolsaapun ~(Issaadxa s! ll •uo!s!noad algllonpap bb-'~~ .e y}!^^ aoueansu! uo!sllloo pue `aoueansu! l}ayl pUe aa!l `an!suayaadwoo luauaaaa6e sly) }o swaal ayl lnoy6noayl -- - .. sases-i lsoo unno sll le ulelu!ew pue aanooad Ileys - - - - - - -~ --- •aossa-I anp luaua/(ed leluaa lxau ayl woa} palonpap aq of lou aae aoueualalewea s} saledaa algesangw!aa •luaw/(ed ao} lsanbaa }o awl) le aossa~ ayl of papaeMao} q II y ~(aessaoau ayl 6ulouap!na ao!onul paz!wall leul6lao ayl ley) paalnbaa aaylanl s! ll 'pawao} o uollez!aoylne aao}aq aossa~ }o lenoadde aoud ulelgo of aassaq ayl -gad aq of s! ~aoM ayl } uollels a!edaa aainbaa IIIM saellop (00'OZ$) ~}uannl to ssaoxa u! saledaa ao} saanllpuadxa ~u`d aseal aapun awaolaad saledaa aney ~(ew aassa-I ayl ~toua6aawa ue ;o aseo ul ' algel!ns ~(ue le p azlao ne ue ~(q pawao;aad aapunaaay paseal salolyan alolyan;o a~lew ayl }o aaleap aeo Mau p yl ~,o aul6ua `aullose6 ;0 6ulolnaas pue saledaa Ile aney Ileys aassa-I •6ulyseM pue a6eaols I. a isuodsaa aq Ileys aassaq ayl 'alolyan yoea ;o uolleaado a;es /Gessaoau Ile 6u!p!noad ao} Iq. _-- ------------------ ue sa6ueyo aall!l I!o pue uollea!agnl ayl ao; paalnbaa saall luawaoeldaa Mau_ s~ibn p o uollepllen `saledaa aoueualulew leolUeyoaw Ile bu!pnlau! `~ueaaeM saaanloe}nuew ayl } aa!nbaa aoueualulew anlluanaad Ile wao;aad Ileys pue `lenueW s,~aunnp ayl u! Iln} aansul of p paq!aosaad wea6oad aoueualulew ayl ap!nb a se 6u!sn `aapao 6u1~{aoM pue uolllpuoo 6ulleaado - - - - - ~a~~a'Y pooh u! alo!yan yoea ulelulew pue daa~{ Ileys - - - - •aassaq ayl }o ~l!I!q!suodsaa ayl aq Ileys aoueansu! ~(q paaanoo lou (s)alalyan ayl of a6ewep ~(ue ao azaaa}-Ilue ~(ue ao aaleM a daooe aeaM a geuoseala Iy eda~ ons `asnge pue loal6au of anp a6ewep ~Cuy 'p l uolleaado se y pUe uoll!puoo pooh u! `yl!Maaayl uolloauuoo u! paaanllap luawd!nba pue salaossaooe II yl!M `aossa~ pue aassaq yloq of algeldaooe ~Ilenlnw uolleool ~(ue ao `~(aanliap }o lu!od ayl le aossa~ of (s)alolyan pies aanllap pue uanlaa Ileys aassaq ayl `aseal sly) }o uollea!dxa uodn 'syluow pies u! pasn s~Cep lenloe ayl aol palea-oad aq Ileys syluow lSel pue )sal ayl ao} sluaw~(ed lsel pue lsa!l ayl 'yluow yoea }o ~(ep lsa!l ayl uo aouenpe u! alge~(ed } a n a o a oe a u! ao u!aaay ylaol Jas lunowe ayl ul pu!~I ~Ue aae sluaw~(ed leluaa II`d 'd I p y S p u wle `(s)aloiyan pies }o asn ayl ao; aossa~ ayl ~Ced }o uollonpap lnoyl!M `aan61} leluaa /~lyl se aoe d aaylo yons le ao }oa~ay waal ayl 6ulanp Ileys aassal ayl 'aleu6lsap stew aossa-i ayl I ale~g '~;~~ o aa! o ayl le apew s u! aossa~ ayl } }} - - - tOTLt` -.-torau>~d. - Sx>ngsr'>rx~~Et aq Ileys luaw~(ed Ild 'd alnpayoS Payoelle u! ao u!aaay paglaosapaq Joy Mp(s)alo!:~an ayl l a uo 6u!uul6aq 'syluow ~lZ ao; e s o!aad leluaa ayl ~aanllap }o alep yl aoueansu saledaa pue aoueua>4uleW ~s)alo!ya~ ;o uanla~ polaa lelua cooperate wit~em, as they deem it necessary. Less further agrees to cooperate with Lessor in collection for any loss of or damage to a leased vehicle for which a third party is responsible. Lessee shall indemnify and save and hold Lessor harmless from any and all such claims, demands, liability, action suits and judgments, and all court costs and attorney fees resulting from any and all claims for personal injury or damage to property resulting from the use or operation of said vehicle(s) during the term of this lease. Assignment Lessor may assign this agreement along with collateral documents without prior consent of and Use Lessee to financial institutions as security for indebtedness of Lessor, and all rights, title, and interest of Lessor in this agreement shall enure to the benefit of the assignee and its succes- sors and assigns. Lessee shall not dispose of, assign or transfer said vehicle(s) or any interest therein under this contract. It is further agreed that all persons engaged in the use or operation of any lease vehicle(s) shall at all times be employees, agents or persons desig- nated by the Lessee. It is further understood that the use of said vehicle(s) leased hereunder will not be for the transportation of persons or property for hire. License and L~spor.____________.._____ ................_..........__.._..._...shall provide at its own expense one set of Registration State license plates, Vehicle Tags, and inspections required to operate said vehicle for each calendar year. Should the vehicle be transferred to a different state during any calendar year the Lessee shall assume complete responsibility and shall purchase at its own expense the necessary state license plates and any other fees or taxes required to operate said vehicle. ._.._...__...__ ..............ye~e..____..__.....___..._..._..._..._....... shall pay all state sales, use and rental taxes in the state where vehicle is originally scheduled to operate. Any and all additional state or local excise, personal property and Ad Valoram taxes now and hereinafter in effect with respect to said vehicle by the reason of leasing vehicles hereunder shall be the responsibility of the Lessee. Insignia Lessee shall be required to obtain prior consent of Lessor before any insignia, accessory, decal or advertising may be affixed to any lease vehicle. It shall be further understood that should such approval be extended that said vehicle(s) shall be returned to Lessor in as good condition as prior to the time the accessory, decal, insignia and advertisement were affixed to said vehicle(s). Use It is contemplated by the parties to this agreement that the vehicle(s) described herein shall not be driven in excess of_....._42.x~ thousand miles 4Z rOg_ the term of this lease. In the event that said vehicle shall be driven in excess of..._..___.._.._•______.__......_thousand miles, then in addition the rental stated herein the Lessee shall pay to Lessor.....~ive cents per mile for each mile in excess of.....42.~~0 .................thousand miles. This amount will be paid to the Lessor upon the termination of said lease. Notice Any notice given under this agreement by either party shall be sent forth by registered mail to the address contained in this agreement. Indemnification Lessee agrees not to hold Lessor liable for the loss of any profits or any damage or failure by the Lessor to render any service or supply any vehicles under the terms of this lease agreement should the failures result from strike or other labor troubles, fire or acts of God, or any other causes which are beyond the control of the Lessor. Legal Lessee agrees not to permit the vehicle leased hereunder to be used in violation of any Covenants Federal, State or Municipal statute, law or ordinance, rule or regulation applicable to the operation of such vehicles and shall indemnify and hold Lessor harmless from any and all fines, forfeitures or penalties incurred by Lessee for traffic violation or for the violation of >. ') ! (all!1 '8 awaN) ,,~' . '`. _- (aassaq) ;, _~~...~.a~ ...__ _ __ _ -- ..-. .. ..- - - .- ......._._.....-.~8 ~. ossaq) _... - -- -- ..~.oui...-< ~uT~sEa'I~ -p~z'sT~u~ ...-....._._....... - - __.. 00'OOSI$ ~8 altgomo~nE sz~~ assuo~nd o~ uoi~do auk sEq •ouI `OOtA1 ~o2.z~uoo siu~ ~o pua auk ~d X •ua};uM anogE;sal; aea~( puE ~(Ep ay; pa;noaxa aq o; s;uasaad asay; pasnEO aney aassaq puE aossaq `~03~13HM SS3NlIM NI •aassaq ~(q pa6palMOU~IoE ~(gaaay sl ~(doo yolyM ;o ;dlaoa.! `aassaq o; paaanllap ;oaaay; ~(doo E puE a;EOlldla; ul pa}noaxa sl aseal s!yl •o~aaay sal;aEd ay; ;o yoea ;o ;ua6e pazlaoy;nE ay; ~(q pa;noaxa ~(Inp puE 6ul;laM ul aq ;snug ;uauaaaa6E sly; ;o a;Ep ay} o; ;uanbasgns apEUa aq ~Ceua }Ey; uolslnoad tae;uauaalddns ao suol;Eaa;lE `s;uaua -puawe ~(uy •su6lsse puE saossaoons `sang;E;uasaadaa le6al `sao;EJ;slulwpE `sao;noaxa `salay clay; puE sal;aed and;oadsaa ay; uo 6ulpulq aq IIEys sal;aed ay; uaaM;aq ;uauaaaa6E ayl •paaanooo pey aanleM yons ou ;l sE ;oa;;a puE ao~o; iln; ul ulEUaaa o; anul}uoo IIEys ;nq `suol;Ipuoo puE swaa; yons ~(ue 6ulnleM sE as;;eaaay; pang;suoo aq ;ou IIEys `;uauaaaa6E sly; ;o suol;lpuoo ao suaaa; ay; ;o aouewao;aad ay; uodn ;slsul o; ~(}aEd aay;la ;o aanlle~ •}uawaaa6E sly; ;o suol;lpuoo puE suaaa; ay; ;o ~(ue u~ao)!aad o; ~(;lllgEUl ao aanlle; s,aassal ay; ao; ao ;uauaaaa6E sly; aapun paalnbaa s;uaua~(Ed ay; ;o ~(uE a~{Ew o; aanlle; s;l ao; /~!I!gE1I ~(ue ;o panallaa aq }ou IIEys aassaq `ydea6eaed sly; ul paglaosap se s;uana ;o uoseaa ~(q aseal sly; a;EUlwaa; o; ;oala IIEys aossaq ay; ;I •aassaq ;o ~(~adoad ay; ;o IIE ao ~(uE ;sulE6E palnal ao apEUa aq o; uol;noaxa ao ~(nal `;uauayoe;;e `ssaa}slp ~(ue paaa;;ns ao pa;;lua~ad aney IIEys aassaq ;l ao `s;asse s,aassaq ao; pa;uloddE aq IIEys ~anlaoaa e ;l ao `aassaq ;sulE6E pall; aq IIEys ~(o;dna~lueq ul uolll;ad iGE;unlonul ~(uE ;l ao sao;lpaao ;o ;l;auaq ay; ao; ;uauau6lsse uE apew anEy IIEys `~(o;dna~lueq ul uol;l}ad ~t~e}union a pall; anEy IIEys aassaq;l `aassaq ay; o; aol;ou;noy3lM `aseal sly a;eulwaa; o;;y6la ay; aney IIEys aossaq •aossaq ~(q paaanoul saa; s,~(auao;}e algeuosea.! puE sasuadxa `s;soo ~(uE aossaq ~(ed o; saaa6e ~(gaaay aassaq uoaaay; puE aassaq ay; ~(q yoeaaq aay}o ~(uE aoao;ua o; ao `aossaq anp ;unowE ~(uE ;oalioo o; ;oaaay} anlEn ay; aanooaa o; ao (s)alolyan ao;ow pies ssassoda~ o; s6ulpaaooad IE6al a;EladoaddE a;nil;sul o; ~tawo;;E uE ~(olduaa o} ;y6la ay} aney IIEys aossaq `}uauaaaa6e sly; ;o s;ueuanoo puE suol;Ipuoo `suaaa; ay; ;o /(uE ul s;inE;ap aslMaay}o ao aassaq uao~; aossaq anp auaooaq o} ao anp scans ao uans ~(uE ;o uol;oalloo ay; ~o; aney ~(EUa aossaq se salpauaaa aay;o yons o; aolpn(aad ;noy;IM puE `aol;ou ;noy}lM ao yilM `o}away; payoe};e ;uauadlnba puE salaos -saooE IIE puE ~apuna~ay pascal (s)alolyan ~o;oua ay; ssassodaa puE ;uawaaa6E sly; a;EUluaaa; o; }y6la ay; aney IIEys aossaq `;oaaay suolslnoad ay; ;o ~(ue ao aapunaaay s;uaua~(ed ay; ;o ~(uE ul ;InE;ap ul aq IIEys aassaq Juana ay} ul puE ~uawaaa6E sly ;o aouassa ay; ;o sl aw!1 •aassaq ;o saa/Coiduaa ao s;uenaas `s;ua6E ay;;o ~(uE ~(q ~(uaoaEl ao uolsaanuoo uao~; 6ul;insaa (s)alolyan pies;o ssol ao;aossaq o; algEll aq IIEys aassaq ~saa~(olduaa ao s;uenaas `s}ua6e sll ~o aassaq ~(q ;oaaay; asn IE6all! do uosea~ ~(q ~3laoy;nE ollgnd ~(uE ~(q ;oaaay; uol}Easl;uoo ay; ~(q pasnEO `MEq `a;n;e;S ~(ue ~anle/N ;one;aa ' ~`~ t _ s. ~.., ,_W. _.__ DD • , PLAINTIFF'S EXHIBIT '7 ~ ~ ` ' ~ u z ~~~~ i ~~.`' ...~.~ r ~~. ~ '~ ~` _. LEASE AGREEMENT (CLOSED END LEASE) Agreement No..__. ..._._......... This agreement made this _._ .1st _ day of . _...... January .,.... .. __ 74 _ ._ _ 19 between_ ....._._.England Leasing, Inc. 425 S. Cameron St.~ Harrisburg Penna. 17101 - (hereinafter called "Lessor"), and ...__. __..__..__.....WI00 33 W. High St., Carlisle, Penna. 17013 - - (hereinafter called "Lessee"), WITNESSETH: THE PARTIES HEREBY MUTUALLY AGREE AS FOLLOWS: DESCRIPTION OF LEASED VEHICLE: Lessor hereby leases to Lessee and Lessee hereby hires from Lessor, on the terms and conditions herein provided, that certain motor vehicle, as follows: YEAR MAKE MODEL BODY TYPE V.I.N, 1974 Javelin AMX 79-8 coupe A4C798Z217707 EQUIPMENT: C BK PS ASW ING VG TG LG PG PP2 AC RWD RFM SMG K724 - L132 RENTAL PAYMENT AND TERM: Lessee agrees to accept the above vehicle at the rental rate specified. The term "vehicle" when used in this agreement shall mean motor vehicle leased hereunder by 'Lessee. Lessee agrees to pay each total monthly rental in advance without deduction, setoff or counterclaim, on the dates and at the places specified. If the deliveryr. date is other than the first or the last day of a month, the monthly rental shall be prorated for that month. The term of this agreement with respect to the vehicle shall be as specified, and shall commence on the de- livery date of such vehicle. This agreement is one of leasing only and the Lessee shall not have or acquire any right, title, or interest in the vehicle except the right to use or operate it as provided herein. , Monthly Rent Sales Tax Total Payment 217.00 13 02 230 02 per mo. Term of Lease Security Deposit Delivery Date _...24...._._Months $.........._ .............._.... 1-1-?4 Rental to be paid on ......._..lst .day of each month to:.... England Leasing Inc .... ....... z........ at: .. _..... _ 425 S. Cameron St. , Harrisbur Pa. 17101 ~ ~ ~.~~ ~~ ~ ~~ ~~~-~~~ ~~~~ ~ ~~ ~~ ~ ~~ ..... g.r.._ ..... . ___ _ .. . .......... ................ Vehicle delivery . ...ng. and Motors, Inc. 425 S._..Cameron St. a Harrisburg, Pa. 1-1-74 SAME - ... ............. _.. Vehicle Return ......................................_..._..........................._ Address ..........................._................................. . FORM AM 3259 REV. 7-72 City State v! Return of Upon expiration of this lease, the Lessee shall return and deliver said vehicle to Lessor at Vehicle point of delivery, or any location mutually acceptable to both Lessee and Lessor with the accessories and equipment delivered in connection therewith, in good condition and repair) reasonable wear accepted. Any damage due to neglect and abuse, such as operation of ve- hicle without oil, grease, water or any anti-freeze or any damage to the vehicle not covered by insurance shall be the responsibility of the Lessee. Maintenance Lessee __ ___ ___ __ . and Repairs shall keep and maintain each vehicle in good operating condition and working order, using as a guide the maintenance program prescribed in the Owner's Manual, and shall perform all preventive maintenance required to insure full validation of the manufacturers warranty, including all mechanical maintenance repairs, lubrication and oil filter changes and._.__..none......- • safe operation of each vehicle. The Lessee shall be responsibleefor prov ding allrnecessary gasoline, engine oil, storage and washing. Lessee shall have all repairs and servicing of vehicles leased hereunder performed by an authorized new car dealer of the make of vehicle under lease. In case of an emergency, the Lessee may have repairs performed at any suitable repair station. Any expenditures for repairs in excess of twent the Lessee to obtain rior a Y ($20.00) dollars will require P pproval of Lessor before authorization of the work is to be per- formed. It is further required that the original itemized invoice evidencing the necessary repairs shall be forwarded to the Lessor at time of request for payment. Reimbursable repairs for maintenance are not to be deducted from the next rental payment due Lessor. Insurance ___ Lessee ----.-_.__ _.._shall procure and maintain at its own cost throughout the terms of this agreement comprehensive, fire and theft insurance, and collision insurance with a.1.00, 00.. _ .-.deductible provision. It is expressly understood that the Lessee shall be liable for, and pay, any repairs not covered by virtue of the deductible provisions of such insurance or any loss not compensated by insurance. This insurance policy to be issued to cover the interests of the Lessor. ___ _....._ -Lessee -..._...- shall, at its own ex ense tain in force throughout the entire term of this agreement, insurance in compan es ac eptable to Lessor covering vehicle hereunder, naming the parties hereto as the assured as their interest may appear in the following amounts. Public liability insurance with minimum limits of .-. ..- 250., 000-500, 000 Property damage insurance with minimum limits of .. _. Certificates of insurance evidencing the existence of such name of the Lessor, and shall be held by the Lessor. All insurance policies shall bear tan endorsement requiring not less than ten (10) days written notice to the insured from the insurer of cancellation of any policy for any reason. Lessee shall notify the Lessor as soon as practical whenever a leased vehicle has been involved in an accident. The Lessee shall notify the insurance com an automobile injury and property damage insurance immediate) a d in the event anolicy of is made or action commenced for damages resulting from bodily injury or property, the Lessee shall make the necessary reports to the Lessor, the insurance co y claim mpany, and cooperate with them, as they deem it necessary. Lessee further agrees to cooperate with Lessor in collection for any loss of or damage to a leased vehicle for which a third party is responsible. Lessee shall indemnify and save and hold Lessor harmless from an y and all such claims, demands, liability, action suits and judgments, and all court costs and attorney fees resultin from any and all claims for personal injury or damage to property resulting from the use or operation of said vehicle during the term of this lease. g ~ ~ ~ 7~ ~: Assignment Lessor may assign this agreement along with collateral documents without and~Use Lessee to financial institutions as security for indebtedness of Lessor, andpalolrr ghtse tftlef and interest of Lessor in this agreement shall enure to the benefit of the assignee and its successors and assigns. Lessee shall not dispose of, assign or transfer said vehicle or any interest therein under this contract. It is further agreed that all persons engaged in the use or operation of any lease vehicle shall at all times be employees, agents or persons des- ignated by the Lessee. It is further understood that the use of said vehicle leased hereunder will not be for the transportation of persons or property for hire. License and , Registration ~ _. -.....Lessor._. -..... _- - ---.-__. shall provide at its own expense State license p a es, taxes, and inspections required to operate said vehicle for each calendar year. Should the vehicle be transferred to a different state during any calendar year the Lessee shall assume complete responsibility and shall purchase at its own expense the necessary state license plates and any other fees or taxes required to operate said vehicle. .......... ...,Lessee - - ...............shall pay all state sales, use and rental taxes in the state where vehicle is originally scheduled to operate. Any and all additional state or local excise, personal property and Ad Valoram taxes now and hereinafter in effect with respect to said vehicle by the reason of leasing vehicles hereunder shall be the responsibility of the Lessee. Use It is contemplated b the Y parties to this agreement that the vehicle described herein shall not be driven in excess of 42,000 ~~ . ..-.... ...thousand miles during the term of this lease. In the event that said vehicle shall be driven in excess of the above mileage, then in addition to the rental stated herein the Lessee shall pay to Lessor...... fitre each mile in excess f h o t e above said mileage. This amount will be paid to thesLessor1upoon the termination of said lease. Notice Any notice given under thi s agreement by either party shall be sent forth b re ' to the address contained in this agreement. Y gistered mail Indemnification Lessee agrees not to hold L essor liable for the loss of an by the Lessor to render any service or su I Y Profits or' any damage or failure a re ' g ement should the failures result from str ke or other labor troubltes, fee or acts fof IGod or any other causes which are beyond the control f h , o t e Lessor. Legal Covenants Lessee agrees not to Federal, State or Munip pa11 st tutee aw ore ord nan in violation of any U e e ce rule o re ulat o operation of such vehicles and shall indemnify and hold Lessor harmle s fp le to the fines, forfeitures or c l pena om an Y and all ties incurred by Lessee for traffic violation or for the violation of any Statute, Law, caused by the confis ti ca on thereof b an illegal use thereof by Lessee or its agents, servants or employees / to Lessor for loss of said Lesse t h I h r s~ e . e s ve I be ab icle resulting from conversion or larceny by any of the agents servants or employees of Lessee. 7~ - ~ ~. ~ , , ' .. . S~. ' .',,. ~' ~. ti:" , ~Ya~i,' ' .;~. y dt l?` • d N~~~ . ~ t t t P ~ < 4 ii~~~ ~ r W®1. 3., +~....~ _~.m ~ ,, ~ . , r Default Time is of the essence of this agreement and in the event Lessee shall be in default in any of the payments hereunder or any of the provisions hereof, Lessor shall have the right to terminate this agreement and repossess the motor vehicle leased hereunder and all acces- sories and equipment attached thereto, with or without notice, and without prejudice to such other remedies as Lessor may have for the collection of any sum or sums due or to become due Lessor from Lessee or otherwise defaults in any of the terms, conditions and covenants of this agreement, Lessor shall have the right to employ an attorney to institute appropriate legal proceedings to repossess said motor vehicle or to recover the value thereof ' to collect any amount due Lessor or to enforce any other breach by the Lessee and thereon Lessee hereby agrees to pay lessor any costs, expenses and reasonable attorney's fees incurred by Lessor. Lessor shall have the rignt to terminate this lease without notice to the Lessee, if Lessee shall have filed a voluntary petition in bankruptcy, shall have made an assignment for the benefit of creditors or if any involuntary petition in bankruptcy shall be filed against Lessee, or if a receiver shall be appointed for Lessee's assets, or if Lessee shall have permitted or suffered any distress, attachment, levy or execution to be made or levied against any or all of the property of Lessee. If the Lessor shall elect to terminate this lease by reason of events as described in this paragraph, Lessee shall not be relieved of any liability for its failure to make any of the payments required under this agreement or for the lessee's failure or inability to perform any of the terms and conditions of this agreement. Waiver Failure of either .party to insist upon the performance of the terms or conditions of this agreement, shall not be construed thereafter as waiving any such terms and conditions, but shall continue to remain in full force and effect as if no such waiver had occurred. The agreement between the parties shall be binding on the respective parties and their heirs, executors, administrators, legal representatives, successors and assigns. Any amend- ments, alterations or supplementary provision that may be made subsequent to the date of this agreement must be in writing and duly executed by the authorized agent of each of the parties hereto, , This lease is executed in triplicate and a copy.the;eof delivered to Lessee, receipt of which copy is hereby acknowledged by Lessee. special provisions and deletions Special provisions and deletions, if any, are listed below: At the end of this contract WI00, has the option to purchase ,this automobile at $1900.00. IN WITNESS WHEREOF, Lessor and Lessee have caused these presents to be executed the day and year first above written. )ungland Leasing,... Inc. WI00 ~ ;° ..... (Lessor) (Less©o) '" -~i~ _ - .~.~ _. _ . . By ..._...... Pres. ~ " ... a, , Title .... sident ;; ~, ; ., ~ .............._ Till ~'~ , p _._ , y ,. - ~ ~i ~, , r i ~ '~6S .Y 7 yd ! ~ ~. .,,.. „~.. _ EXHI ~~ ~~ ~ ~ ~ ~ .~, ~ ~,' `` 'fir .,y , 7 ~~ 7 T~, ~ ?~ al ~'~4 , '~'7 ~! ~/ rt t ~~+i "r" ~' i~ ~'l4T'NgI '~. ; "' ti~fi ~~ ~ AtTr'^" ~ ~C1 ~_p _ ~ s r, ~ , v. z~;'~`+y+ 9~ t tiL4~ .~'~ 7~Y„~~.~M.~~y~55• 1~~ y ~~~~ ( ~ "} t1ti'^~°' A 1y!~ * ~ YN DIY Fµ~'v!" ~..~ GI ~~~~~ «,a,~ . ~'l~ L~ ~! ~ Y ti d 1 '~~ 1 y. ~ ~. ~ in yM 1, ~ . 1 p ~' f + tf. rat ~Itn ,.~.~{ pr1~.,~ .. ~. ' .~ ~# ~ ° . ~.'1 ~ ~ ~. ~, " ." {}..t!1 ,1 ~e ~. fit,"' +~' ~" ~ fl~~~ ~ ~..I w ~ x ;r}' 11 {r' ~.r ;~.a l T ~' • * ~ ~W Ora t ~ +* +~,`W~ G' Y ;•~ d .r1 ~ H { r~ f i'lnit , 1 y rtia~ ~i '~ ~ ~' ' ~' ~~ ~t ~~qn is t , ~ y ', ~ ~ rr~ti »,~; ~ j r '}~ ~'7~'r~ ~~ ~ ~ ~~ ~ `_ ~ ~y, ~~Ya ~ I~A~iI ~,~ ~ f~~~l ~ ' ~1d'~~~zr,-~ +~y~ ~~i~~~ t 3~'3 11 F'~ { z ~ w t, ~ ~r f.a° ;~~ ~'~' a~ ~ r ul" ~ ~ ~ ^ t 1 a~ i ra i~' fir <.~ F z ~~i Irk k Y~ ~;~~# ,} !w'1~1 11 ~~~~ ~~~ ~ ~~~ ~~~~~~~~ +a aJ rr 'r~., i ~ ~~~, r- '+ 1.,yt~.~. .y~; ~~ r1~'.~.n , -r~~:,g ~ ~, , ~ - . ~ .', ,~ k; ,rK t ~ , 1. ' Y i~1~Wd4' ;.,~id, i~.F . yr.:ail"uh;;M ,may. i ~'' `r.~F„~~ ~;~", p` ir. ..:«~+. .~ ~ F, g.f ~' .rz ~d ~~ • ~.k• ~_ . ~ f s e, a. - a f }~;~ GLAND I~10 TO T~t S ~ PLAINTIifF'S • EXHIBIT • 425 South f,'~tc~eron street - ~, ~~ --~-~ • liarri.sbur~;, Pennsylvania W ~_-'~.~ STATEMENT OF ACCOUNT RA010 STATION WI00 AM 33 W. N igfi St. • Carli I P 11013 ~ ~A..-<; 6. ,. ~~ c't. rr:"fir ~~ S.3 35. a0 7~' ~~~ i~. Date Descri tio, b D No. Rate ~_ ~ it e Credit Date Balance Iir~ou~~x~c rO~~wn ~ ~) r1a ' 3 3962.5( 7/1 87 <.. 50 un e _1_- 30 _ 21 7.50 1 80 . UO R/1 87 2.50 July 1-31 217.50 397.50 9/1 87 2.50 Aug 1-31 217.50 4615.00 10/1 11/1 283 154 2.50 2_50 Sept 1-30 Oct ~~' ~ 707.5 _ 385.0 5335.2 ) 5322.50 r372.3( 1 1 /1 13 5 . C) Oct 1 5-31 fi5 . U r437.3( 135 2.50 Nov 1-30 337.Sc c r 80 12 1 22 .00 Nov 1-_~U _ 1 10 0 c 884.80 54 2.50 llec 1-31 135.00 c 1019.8C 54 4.00 Dcc 1-31 216.00 c 1235.gC 4 20 5.00 Dec 1-31 100.00 ~f c 1335. RC 1 /4 }~Erl'. IL DE .IVF.RY P4tICI~, °I 11MRA a. 1 600. r" 64.2C Cast Acco nt - Balance due 21 4.?_2 49.98 TOTAT TTtA ~ PRICE FOR ' 4 AMX 5520.4 c r 5570.46 84 4.00 Jan 1-31'74 336.00 cr 5234.4E 2/1 23 5.00 115.00 cr 5119.46 6 5.00 Feb 1-R 30.00 c 5089.46 3/1 50 4.00 Feb 1-8 200.00 c 889.4fi r ;P' <. . ,T `' '~ p.; r °; 1' ~: STATEMENT OF ACCOUNT RADIO STATION WI00 AM 33 W. High St. - Carlisle, Pa. 11013 • ENGLAND MOTORS • 425 South Cameron Street • Harrisburg, Pennsylvania TRADF~ FOR ' 74 AMX ~<~ ~~% ' J ~, t D Descri lion Debit dit C t D l B e e a No. Ra re o e a anc FE UAR 1974 BROUGHT FORWAR cr 4889.4E 4 1 4.00 March 1-31' 4 228.00 cr 4661' 5 1 56 4.00 A r t-3U 224.UU cr 443 .4E 6/1 57 4.00 Ma 1-31 228.OU cr 4209.46 1 4.00 June 1- 0 228.00 cr 81 46 7 4.00 Jul 1- 1 228.00 cr 3753.46 Inv ice#6770 7 5 74 112.12 cr 3865.58 4.00 Aug 1-31 228.00 cr 3637.58 9/1 .00 Au 2 - 1 ^ 00 cr 3'472.58 10 1 11~ .00 Set 1-18 C.00 cr 1~2. 8. 0 228.00 cr 2914.58 11 1 l~.OQ Oct 1 - 1 ~ 8 QO cr 2686.58 1 ^ 1 S7 ZF. !~~ November 1-3Q 2?3. Cl0 c 2~+ ~i. S8 i~% 1 7 ) c 7 7' 1 1 > >+.0~ Dec 1-'1 ~~c?.nn c 2~5~.0 .• 1 4.00 Feb 1-28 228.00 cr 1808.0 ~+~1 25 4.00 ar 3-31-Jeep 100.00 cr 1708.07 ~+~1 57 4.00 Mar 1- 1 228.00 cr 1480 0 ~° I ' / •.. '. ,, ,5~r","a~,'k`I'''~l yi" }t~i3,td+~ ~ ? ' ~`•t' u0.' ,.. • * ,. 4• . ! ,~ ,1 1 - / STATEMENT OF ACCOUNT ~~ 1 • RADIO STATION WI00 AM Wtoo , P: 0. Box 349 ' Carlisle, Pa V013 ~ ENGLAND MOTORS '• ~ 425 South Cameron Street ~ Harrisburg, Pennsylvania TRADE FOR '74 AMX ;, ~. r , , ~* ' _< r ,1,'` ,.,.. ,- i; Dote Descri tlon b o• Rate it De Credit Dote Bolance CH '75 BALAN BROUG FORW cr 1480.07 4.00 A r 1- 0 228.00 cr 12 2 0 2 4 00 A r4- 0-Jee 100.00 cr 11 2.0 'nvoice of 3/25 5 141.44 cr 1293.51 44 4.00 a 8-31 JEEP 176.00 cr 1117.51' 6/1 1 4.00 Ma 1- - 52.00 cr 1065.51 ,'7/1 ~~1 '' .00 J~u.c 1-,,n_;;- ;.l ;tr -'~~~, ~~ cr 821 .51 I r' S77•~1 10/1 61 4.00 Sept1-30-Am.Mtr 244.00 cr $7,51 11/1 56 4.00 Oct 1-31-Am.Mtr 224.00 ~36.~9 4 00 Nov 1-30-Am.Mtr 244.00 .3$0,49 1 1 61 4.00 Dec1-31-Am.Motr 244. 624.49 • 2 1 61 400 Jan1--~-~- 6Am•Mt s 244. 868.4 3/1 ~1 4.00 Feb 1-29-AmMtra 244.0 1112.49 ______ . , ~ i Poy Last Amt. * , ,' •k y4 fi in Thls Column J ' y kf, ...._ _ _ ~:•1 , r~ ~ [ 2. ' t . + ~, ,-~t ,~ ,i •.•~• , era ,1• A++,.l,frl'~~.:~Il~l`"~.- +. .: ., ... ~ EXHIBIT "B'- -~,. ~ ,, ;,.. ~,,, u~~I~;~.~,~, ~, ~. Y ~ r , 1~ ' AA :T ' 1' !Y t~. ~ )~~' ,~ t,~ l y ,~ Y `~ ,GN ~ i t~~4~ .,~y- ~ I ~. ~ ..i a ~ T ~.«, r.` .,! ;, .~..~ Nli qh ~r,p+ p ±~ § ~ +~ ~' j f .•r~,~ ~.~.Y Y".~~ 1~r ~ I , ., ' ~ ,, J 1~ r~_y l'~Y a•~dh JP'^}~.,,'d ~ k ~ t ~* ~t ~ w~~•M ~ ~ t. ~~ ~ t;lrft~ Ih ,f . ~.~ } ~tt'i ( [, , ~ e f., ,~ Yg~ ~ a ~,: ~~ ~ ~ ~' ~ 1 [i. Y71 r' 't~# „ r'F~~ ('V~ ~,.,W'~+~i ~ 'tf~.l't~~~{}; Y+. 1 ~g7,~1 ~ ~'~[~tlf _~*A r. 6 M ~~~ f 911 [~ y~r< . Y..~ fE t '~r ~ .,ri{r.,i. . ~ ,y :v (~ t*~ 1ty, ° '' ! ~f~~~9~, u I ~ t .. ~ ~ ,. k u.'' rid„ 1 Iz.. •;~ 1 r : ~ ~r n., ~ •~r,~" ~ •'t /~T ~~4, t ~"1~'k~ [o, '!~ v "` .i h~w+y ~!~~~`;({ Gi~~' , 4 ` '? ~~t•t,` ,~~ y,~lu1 t~ L4~ t~~~t,:i ~-0 i' ~"~1,'tl~~.j~~1[~ t~,j ~`s <1'~'~ I.f~I~S~ '~i~t,.k~~ t ~''>j~r, b~ ~`J , ~ , 1;N ~t 4 ~ ~' ~°` +~ fM d1Jt Ri j,i.l~ ~VI '~t11Y ~9,4 ~~ .,~~ .UW 1 ~.'~ 7 '"~ .A~ ~ [~f'h' ~ ~ ,.~w,"1: ,~ 1 +Tr ~ F i ° 't I t,~,.t+ ~ .,y~~t•~~fF~t1 1` ~,' j1 'i}t' ~ {N'ti'{ 1l' : 1 ~1 a:~. i ~ i ~ f ~K~A ,i~ `L [~ "~t9` t~ e~ 4 ~ R,~ ~~ ~'P1 ; e, ' ~ 41~tf) fit/'ka.;tV yf }~ +..1 rK ~t~.~. .1~1 ~1 } ~ ,..~„ rtt j1["' 1~ lr r a+'", ~{;'S', ,_ ;~ ~ ~. I~ A ~~. { dR ~ ~R t ~1'SI, ~ ~~ 'P 74~ [; n1F qi i ~ "9f~" ~, r ~ {~1,11r ~'P ,~ ~ 1 t .krw- , 1 1 ~y 4 SA ~j ~ 4 1 IL.1 ~ ~ 1 f {~ t ar.j , br ~; , f~ 1'n.r~ d (,~.'~ ~ i:t~~ },~u ,le~r~'~(({{;;f~'f F ~~.r~`Y~~bb: >(A w>; ~, Ibi I~Y ~'~?'~~ )~'.t. ~ - b is f ~ ~ ~ , ~*f ( .( ~i.i 1 r :.1 / K h". A{+S7 t~ G 1 ~~,~ ~1') f[., i~ i ,. , y 2 (e f 'li~yl 4,•~l1 4It,'r ~-t ;, i 7i18k ~.. --^{ h b z '" Y :~q.3r•.~)~: i`iw . F ' d~ U ~ W41~ ~' ~l"f"~' .; ., , 'a , .~~ ,tZ,a~:~r.>k %~'e+~,".ea~'Sk` ~a5rr*a'1xidT . ~~a a ... j... ~v...,~lw, It u. ~ ,.•~. -z~.eA ,,,~-"~'" `"'~P"- "- , -..,-~-s - ~ ,cr. ., ~-, rxi~wi'ro~,+ar[FUa:-,~.ac ,er"~~ :; ~.,,~"" • p,n, P M i. - ..,. ..... .. ._. ,...., ... ..a..:..inwMww.+ewr-. «n ,.~.. •f..narae ~~"WMwr .~.~ <..,r.},~,~ American Motors LEASE AGREEMENT PLAINTIFF'S (CLOSED END LEASE) EXHIBIT --~ u ~~-~ Full or Non-Maintenance - - -Agreement No....._.-....--.._..-._ .................. ~~z r~ ~ ;.. , l ~~' u ~, , , ~;J i Fs~land Leaning, Inc. _...._.. - - - - ....- -- Name of American Motors Lease System Member) ~ ~ ~~ 24th December ~ 71 This agreement made this -. --- - _-.-.----. __.- .-.- --.day of._-------------------- _..- -- --- - ----- -- - 19 -- -- .between England Leasing, Inc. - - _.._ a corporation, with offices k25 3. Cameron St., Harrisburg, Penna. 17101 m - -~- ~ ~- _.-hereinafter referred to as Gf100 City and State Carlisle, Penna. 17013 ,Lessor", and.--._.. ...._ ____ -...... - ___....of_..__ _- ------- --- -... - --- ----- hereinafter referred to as "Lessee." WITNESSETH: Lessor hereby agrees to lease to Lessee, and Lessee hereby agrees to hire from Lessor for the term and at the monthly rental rates hereinafter specified, the following automobile(s): MAKE I YEARL I S OD E ~ V.I.N. I RENOTAL RATE I RENTATL TAX EQUIPMENT: 197;x:. Ambassador A2A857P170869 $r6 12,0 ,~~-~ti $222,0 and such additional automobiles as shall become subject to this lease agreement in the manner hereinafter provided. Lessee may, by written request to Lessor, order additional automobiles from time to time at a monthly rental to be agreed upon between the parties. Such additional automobiles fur- nished by Lessor pursuant to such request shall be subject to the terms and conditions of this agreement unless otherwise provided in writing by the parties. Terms It being expressly agreed that this is a contract of leasing only, and that the Lessee shall acquire no right, title or interest in or to the property described in this agreement. The lessor does hereby agree to lease to Lessee, and lessee hereby accepts from Lessor, the Motot Vehicle(s) as described herein or in attached Schedule A and subsequent Vehicles taken aH of which will be subject to the conditions and provisions of this lease. ~URM AIA 329 ~7 f ~~ ~' ~~ ,:~ . ~. . . Rental The rental period shall be for-. . __.__24___. _ _____ ....months; beginning on the date of delivery Period of the vet~icle(s) which is described herein or in attached Schedule A. All payment shall be ' made at the office of the Lessor in.........._~xx~..ebsttg,..Manna..-.....,17101...----------_- - --- - --- City State or at such other place as the Lessor may designate. The lessee shall during the term hereof pay the Lessor for the use of said vehicle(s), a monthly rental figure, without deduction of any kind in the amount set forth herein or in attached Schedule A. All rental payments are payable in advance on the first day of each month. The first and last payments for the first and last months shall be pro-rated for the actual days used in said months. Return of Upon expiration of this lease, the Lessee shall return and deliver said vehicle(s) to Lessor 1(ehicle(s) at the point of delivery, or any location mutually acceptable to both Lessee and Lessor, with all accessories and equipment delivered in connection therewith, in good condition and repair, reasonable wear accepted. Any damage due to neglect and abuse, such as operation of vehicle(s) without oil, grease, water or any anti-freeze or any damage to the vehicle(s) not covered by insurance shall be the responsibility of the Lessee. Maintenance _ __.. _ _)t,ease~ ___ __ _ _ _ __ shall keep and maintain each vehicle in good and Repairs operating condition and working order, using as a guide the maintenance program prescribed in the Owner's Manual, and shall perform all preventive maintenance required to insure full validation of the manufacturers warranty, including all mechanical maintenance repairs, lubrication and oil filter changes and _ .. nons_____ ..new replacement tires required for the safe operation of each vehicle. The Lessee shall be responsible for providing all necessary gasoline, engine oil, storage and washing. Lessee shall have all repairs and servicing of vehicles leased hereunder performed by an authorized new car dealer of the make of vehicle under lease. In case of an emergency, the Lessee may have repairs performed at any suitable repair station. Any expenditures for repairs in excess of twenty ($20.00) dollars will require the Lessee to obtain prior approval of Lessor before authorization of the work is to be per- formed. It is further required that the original itemized invoice evidencing the necessary repairs shall be forwarded to the Lessor at time of request for payment. Reimbursable repairs for maintenance are not to be deducted from the next rental payment due Lessor. Insurance _.._.__._.._..__ Lesaee__._....._..___ ._.____.__.._ _._. __ ____. _ _ shall procure and maintain at its own cost throughout the terms of this agreement comprehensive, fire and theft insurance, and collision insurance with a__.1QQ.t2~. _ _deductible provision. It is expressly understood that the Lessee shall be liable for, and pay, any repairs not covered by virtue of the deductible provisions of such insurance or any loss not compensated by insurance. This insurance policy to be issued to cover the interests of the Lessor. ......_............_._-._..T,oase~___..-.........___ _.....-..._._.._...._.......__shall, at its own expense, procure and maintain in force throughout the entire term of this agreement, insurance in companies acceptable to Lessor covering vehicle(s) hereunder, naming the parties hereto as the assured as their interest may appear in the following amounts. Public liability insurance with minimum limits of. - - - .250 , Q44.._- 500, Q.QO -... -- - --------- --- -------- - - - - - --- -- - - - -- - - --- ------.. Property damage insurance with minimum limits of.-.......__...._ ............................._..._......-.._.. _........__............_........... Certificates of insurance evidencing the existence of such policies shall be issued in the name of the Lessor, and shall be held by the Lessor. All insurance policies shall bear an endorsement requiring not less than ten (10) days written notice to the insured from the insurer of cancellation of any policy for any reason. Lessee shall notify the Lessor as soon as practical whenever a leased vehicle has been involved in an accident. The Lessee shall notify the insurance company issuing the policy of automobile injury and property damage insurance immediately, and in the event any claim is made or action commenced for damages resulting from bodily injury or property, the Lessee shall make the necessary reports to the Lessor, the insurance company, and :~~c~ cooperate with them, as they deem it necessary. Lessee further agrees to cooperate with Lessor in collection for any loss of or damage to a leased vehicle for which a third party is responsible. Lessee shall indemnify and save and hold Lessor harmless from any and all such claims, demands, liability, action suits and judgments, and all court costs and attorney fees resulting from any and all claims for personal injury or damage to property resulting from the use or operation of said vehicle(s) during the term of this lease. Assignment Lessor may assign this agreement along with collateral documents without prior consent of and Use Lessee to financial institutions as security for indebtedness of Lessor, and all rights, title, and interest of Lessor in this agreement shall enure to the benefit of the assignee and its succes- sors and assigns. Lessee shall not dispose of, assign or transfer said vehicle(s) or any interest therein under this contract. It is further agreed that all persons engaged in the use or operation of any lease vehicle(s) shall at all times be employees, agents or persons desig- nated by the Lessee. It is further understood that the use of said vehicle(s) leased hereunder will not be for the transportation of persons or property for hire. License and ._„ _.Lte~so;_.__._ _.._____. -...__ -_ . .shall provide at its own expense one set of Registration State license plates, Vehicle Tags, and inspections required to operate said vehicle for each calendar year. Should the vehicle be transferred to a different state during any calendar year the Lessee shall assume complete responsibility and shall purchase at its own expense the necessary state license plates and any other fees or taxes required to operate said vehicle. - ~- - ~ - Leaaes - - --- - __ ..............shall pay all state sales, use and rental taxes in the state where vehicle is originally scheduled to operate. Any and all additional state or local excise, personal property and Ad Valoram taxes now and hereinafter in effect with respect to said vehicle by the reason of leasing vehicles hereunder shall be the responsibility of the Lessee. Insignia Lessee shall be required to obtain prior consent of Lessor before any insignia, accessory, decal or advertising may be affixed to any lease vehicle. It shall be further understood that should such approval be extended that said vehicle(s) shall be returned to Lessor in as good condition as prior to the time the accessory,- deal, insignia and advertisement were affixed to said vehicle(s). Use It is contemplated by the parties to this agreement that the vehicle(s) described herein shall not be driven in excess of___ 42.,.0-._-....--....thousand miles Buringg the term of this lease. In the event that said vehicle shall be driven in excess of.....-. 42,000 .thousand miles, then in addition the rental stated herein the Lessee shall pay to Lessor_...g.Ve.------_._---.-.....cents per mile for each mile in excess of.....42~000 thousand mites. This amount will be paid to the Lessor upon the termination of said lease. Notice Any notice given under this agreement by either party shall be sent forth by registered mail to the address contained in this agreement. Indemnification Lessee agrees not to hold Lessor liable for the loss of any profits or any damage or failure by the Lessor to render any service or supply any vehicles under the terms of this lease agreement should the failures result from strike or other labor troubles, fire or acts of God, or any other causes which are beyond the control of the Lessor. Legal Lessee agrees not to permit the vehicle leased hereunder to be used in violation of any Covenants Federal, State or Municipal statute, law or ordinance, rule or regulation applicabl© to the operation of such vehicles and shall indemnify and hold Lessor harmless from any and all tines, forfeitures or penalties incurred by Lessee for traffic violation or for the violation of ~~ __ _ ~ . - ~r~+ ._ ._ any Statute, Law, caused by the confiscation thereof by any public authority by reason of illegal use thereof by Lessee or its agents, servants or employees. Lessee shall be liable to Lessor for loss of said vehicle(s) resulting from conversion or larceny by any of the agents, servants or employees of Lessee. Default Time is of the essence of this agreement and in the event Lessee shall be in default in any of the payments hereunder or any of the provisions hereof, Lessor shall have the right to terminate this agreement and repossess the motor vehicle(s) leased hereunder and all acces- sories and equipment attached thereto, with or without notice, and without prejudice to such other remedies as Lessor may have for the collection of any sum or sums due or to become due Lessor from Lessee or otherwise defaults in any of the terms, conditions and covenants of this agreement, Lessor shall have the right to employ an attorney to institute appropriate legal proceedings to repossess said motor vehicle(s) or to recover the value thereof to collect any amount due Lessor, or to enforce any other breach by the Lessee and thereon Lessee hereby agrees to pay Lessor any costs, expenses and reasonable attorney's fees incurred by Lessor. Lessor shall have the right to terminate his lease, without notice to the Lessee, if Lessee shall have filed a voluntary petition in bankruptcy, shall have made an assignment for the benefit of creditors or if any involuntary petition in bankruptcy shall be filed against Lessee, or if a receiver shall be appointed for Lessee's assets, or if Lessee shall have permitted or suffered any distress, attachment, levy or execution to be made or levied against any or all of the property of Lessee. If the Lessor shall elect to terminate this lease by reason of events as described in this paragraph, Lessee shall not be relieved of any liability for its failure to make any of the payments required under this agreement or for the lessee's failure or inability to perform any of the terms and conditions of this agreement. Waiver Failure of either party to insist upon the performance of the terms or conditions of this agreement, shall not be construed thereafter as waiving any such terms and conditions, but shall continue to remain in full force and effect as if no such waiver had occurred. The agreement between the parties shall be binding on the respective parties and their heirs, executors, administrators, legal representatives, successors and assigns. Any amend- ments, alterations or supplementary provision that may be made subsequent to the date of this agreement must be in writing and duly executed by the authorized agent of each of the parties hereto. This lease is executed in triplicate and a copy thereof delivered to Lessee, receipt of which copy is hereby acknowledged by Lessee. IN WITNESS WHEREOF, Lessor and Lessee have caused these presents to be executed the day and year first above written. k A,t the end of this contract W100, Inc. has the option to purchase this automobile at $1500.00 ...................... ..................................England....Leasing-.....Iac...._...._...._.__..........__ (Lasso By ...................... ....~... ... ..--.... _ .............._..............:........._. ~r- .. (Nam 8 Tttle) ......_ ..............._......................_.......W.~Q.Q.......LC1C..................... _............ .. (Lessee) __ , .. ~~ - ~- • (nrs~e ~ True) ..__... EXHIBIT "C" ~ ~, .......,,,...., ,....:,.~..,.~:_.....w_~.~,_,,,,,w , ...` -,. .nw„~,:a...~~ , . 'xk...~~ ,-.:.. ;.Ua~~t:@ +!} ~..6 J»~~~RY,: ~:' '-aidr .~ i~..~ eP++..~P. . 40.0 la:. : e3 .„ypYf.M +i...l~:: JrQldablillLlaY~IIW f~lh~l . x , ,1A~ ~ ,;, . '~'" f~~~ . ~.,,?. .•. ~ , I~ ^~ ~ ,,rr> ' ~ ~ „ °" ~ i . .v ~ ~ ~~ ~~ s ; ~ . ~ ~n~tttnd ~vtnrs, ±lttr.~ AMC n._ ~,~ ~~~~~~~ --_~~ ,~~,.;~;; y 425 SOUTH CAMERON ST. • HARRISBURG, PENNSYLVANIA 17101 (~ ~ + ..ten ;~°`"'~~ ~~~ t,J100 33 ~^7. Hi~?h St . , Carlisle, PA. 1'7013 PLAINTIFF'S _ EXHIBIT u ~ ~~~r ' t 4 COMMONWEALTH OR PBNNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF MOTOR VHHICLES "~* ~ FIRST CLASS - HARRiE3HURG, PA. 1712II U. S. POSTAGE ~~ ~ ~ PAID 1 OZ. ' -' PERMIT No. 720 INSTRUCTIONS ~`"~"~1!'`^R"tr HARRISBURG, PA. FOR USE i OF t: RENEWA ~~ L STICKER ~` - X70 - _. ON ~ _.. REVERSE SIDE OF ~ ' y ENVELOPE ~ , ,..~+.J - ..-~-.. r A25325?~61" 5E4202 TITIE NUMRE REOISTRATIOH HO. ` ~~ ~ Tt AMERICAN MTRS CP d •° r, ~ ... - MAKE Of VEHICLE TTPE ~ - ' '~ A~-CT981217707 .j ,:. '~ ~ ;~L ~{, ~ a '~ ' "`^~* - ~ MANUFACTURERS SERIAI NUMBER 1. ' '~ .~ ~-" A - 00 MAR 31 1977 ~ ' , , „-,~~ ~d ` I ~s~ ..,.~. ~ ~~ EE CODES OUP E%PIRATION DAi_E , r *~ ~ l ~~_ - VOID UNlE51 VALIDATED ~ ,. a~ ~ ~ w„ ~ TAX ~ ~ ~ ~~~ ~ ~" . T ' F +~ ~ I ,2 . ~ ' ~ ~ ~ ~•, ' ~ VAL IOATEO ~ MAR 17 1976 ~ , ,, ~.. ~ ~. ,~, v~l.~t' ~ ENGLAND LEASING INC ~ f` ,,,. ~ ti25 S ~ANERON ST ,~~=>' ~ HARRtS URG_ PA 12101 ;' ' ''~~,, ~ t w p I +r ,e ~ ~~> A ~ I '~ ~d :, ,:'. k' a 9~ ' ~ i ,~.'~ , ~`•:y~ ~ „ w, . ~ ~ ' tip, ~ ~ ~,. •' s ~ . ~~ . S~CiN I IMK 00 NOT PR NT ~ ~.1.gy ~w':. a,,.~ 1 1 ~ do ~ u COMMONWlAITN Oi P[NNfrlYAN1A ., -0 ~~ ~ ; n.a "'' s t .' ~ ~ < ,t ` ~bE-AllTMtNT OM' TItAIiSPOlTA110N 1 ~ . ~ ' ' t ~ ; a ~ ° ' ~ - +' ~ ~+ ~ r ,~ -A~fEN(3Ef, f[ATION WAGON -~ j ~' ^ r + :, ~, ° „ o~ MOTOfC~CIt XEOIfTRAT10N t ' ~I. ~ r s~'t;~ ~ ~ ,~~f ,.~ 1 ,~ 1 ~'1 r ~ Q` ~' P~ti R{. *t b l ~li~ i,M+ ,~',Rf,l'' ~ fi"'~6 T M~'~rF9~R~~.~MPMNM ~'~.'^"..~ ~~ i7+~{'x~ °IFT'~ ~'u. ~ (JdR~~~."GCIi*'r~Pb~'. ~ i~!Fti',°'~"a,~,~' 'L CY i / o , T1FF's - ' ~~; ~ ~ P~EXHIgCT a :~,.~~ ~,. ... Y 1 / _-. __. L C/ CARLISLE. PEIo1I~lA. 1°1013 ~O" ~~ Phone 243-1200 ~~0 .................... Date °.... ~ ...~. ~~ .~ ., ~, ~o TERMS: T+iet 10 Days Balance Previous Month SPOTS ................ -.~~ ~, ~yv a ,~ ~~,. PROGRAMS ................ ~ ~: ~` t ~, ~~~ ~~ ~, 6~ C'JMBERLAND~ C,~dU.'~TY, ~~VNSYLVANIA u ~ ~~'~~ ~' ~ ~"~ M C MM o' EXP ~ A 1 2 176 `~a~r Y ° ;:~,~,_ ~~ OFFICE MANAGEK ~wom So an ubuAbod . ~~ m6 'vv: ?!1 !1S;}.i•~,~ ~- DAY OF 1/~19~ TOTAL DUE ~' ,~ ~~~ . ,., . '~ • • ~ ~ ,~~~ c 0~. ~ CARLISLE, PENNA. 17013 ~r ~ Phone 243-1200 ~ ~ Date .Ix:t~u~~r.. ~ y...~.~T i:~ ?,~~..~: ~sl I c~a f }, lF~i,"1i':3.~~1i''~,4 ~''f;.I?~2f~'I.V£3Y'1~Gi TERMS: Net 10 Days Balance Previous Month low; Q~~i~r 1-31 ~ 9~]'~ C~Op ~IIS..t1~J 3 SPOT'S ......s~..~ ~ ~~~.t1A t~~ _ __ __~ < ', ~ ',, ,~ ~1>.Op ~, t l ' ~ ,~ ~~ PROGRAMS ................ ~ ~ __~-.-`'ii ...~ .,3 i '~/// /` MY C~PJ~/vii~~iJ^J/;,F~~~AR:,H ', ly%b / ~ ~ldW ~~~ ~ o Swan In e~}f}' ~'S((u..--bscribo3 k~h:7 ma I~Sg r l ''; OFFICE MANAGER DAY OF ` l 19 TOTAL DUE `~ ''~°00 .. _ ~5 i F' ~~~ \ \ ~., i~ ~+ ~...>•~ ,......+ram~s~:...wee` ..___'. ., .. (.. .a. ;., .. ~~ . --..,.. ~-r.~--.... ~:;s~.^.Sf~C ~+~~'E'~e3~3U3 le~~LTSI~.iI --1 - - i I ~~ - ,.. ~~ '. . FC r .. I ~' !; ~~ a ~ ~ _ ~ y.~' '~ e i ~~~ ~. ~- k`~ItC)UI~AM:i ! `v I %~ ~ CUM6ERLl~ND C,C ON1Y NNSYLVAN(1~ ° ~ btu MY CUMMJSSIC^] 1 Y.' ' S MARCH 2, 1970 ~ „~~6, r~ ©~t ., .~Y~~~,a r,~r~~ „3 ~.~ ~ (~I'FICE MA1vAGER RAY Of 19_ ~~~~.~~ ~~~'. ~ yh' u~~ rp[!t~ ~~ P• O. I30X 399 CARLISLE, PENNA. 17013 ~ ~r '"' Phone: 243-1200 ~~"'.~"~.C'i.'~~ 1'~~.!7'k~L.3 ' ='y F , TERMS: Net 10 Days . ' Balance Previous Month -------_ s `~'~!"~ SPOTS... (x~ .. ~{~.~ ~~ ~- ==)i~l.L~ PROGRAMS .............. . _,;a~ . V ~~~) 4 J 517Qf1 D j ~ 3 - V+ r~,~R OFFICE Ii~AN~~Gi'.k v --------_- ~ 4 ~_- TOTAL DL'E ,~~ a ~'#GoCf~ ~. ,; ~ ~~ ~', ~ ~~ ~~ • ~' Q t~ ~ ~ Q ~., F. TERMS: 1~Iet 10 Days CARLISLE, PENNA. 17013 Phone: 243-1200 Date. ~tt~:~.Y~':}%: .~ ~-..~ ~+~ Balance Previous Month ~~ Q~~ ~~ sroTS....61 '~ ~t6•Cl0 e~., PROGRAMS .............. . 2'~~.()U i ti\ ~ (4~rrVri~f 1, OFFICE MANAGER ' ,, ', G ~ Sworn to un~ .Fiubscribod -gym me t9ais 51~ ~~~~~~,~ ~~~~//,,_ ~ TOTAL DUE ~ ~ ~' P. O. BOX 399 i ~ , ~~ 1 • • ~~ Q ® P. O. BOX 399 CARLISLE, PEIVIaIA. 17013 F ;~ ~ ,/~;~ ~ Phone: 243-1200 tl ~ Date. I';.~r'C'~3 1 ~ '[,"j~~ ,I ~ c'l1 TERMS: A1et 10 Days Balance Previous Month t~t3~ ~~I~1~.°~ i~~tr.'~ SPOTS... ,~s,'4 , ~. x=,9.0© ~s .~ ?~1~F.tfO PROGRAMS ............... _. ~ ~1 *]and yfnf 1'r~i ~n~y ~ / ~ ri:~ 1 nay Ccm i-;f ~ t~ i.ry '}. iqr~,,, ~,~ ~t '~ e a r4u n~~ -aeribc~d >,~.SbrAj ~~q ?~i;'}"~i ~; ~ jly OFFICE Mr1NAGI~:R TOTAL DUE +~' ~'•'~`!i:.,~l® a. ~-y G Ct NCO ..; ,, _: • ',T ~ O O T~~I3:~:0 33 t?c>c~t ltt~l~ ~tz~~et. C~irl.islc ~ Peraiisyly<it,i~ 11013 !d•~ h~~s•cl~,y c~rtii'y that the ~,dvc;rtisinn orde~r~~d by.~~,.,~~,~~,~'?~~~.r~-- R _ _ 11 dve z• t i s 1 r~ ~?_~~~~~rn:~.~.T:~ti~t~r~.,~.....~...... ~_ __._,. ~_.,.__e..~_ t~ i:~ __~~rc~tl<lc ~~~~t ..iii the sc~qu~nc~ on i~h~~~ da.tcs as i.~dic~ ~__~d: ~~._a...s_.~;_ ,~;;~~;1,r~"~-___.-1`75 i ~,-~ ~ c '~;~ cam.- f~ : ;~ c P`l, , =,-: ~ ;:R 3._ ~:'PS~~ ate, ~o:-;_~;a~-;o, 2~00~~~.5 ~~ 6- y:1,` •so c.T~, ~_~_;`;Lol;.S~ ?:7.5~.;, pm ~ ._ _. 9-- ~_ o-- 11 ~- 1?-- 13 ~- 1. ~l ._ ] 5 _- 1 G-. ~.°~ __ ~ ~-~~- 19 ~~~, 21~ ~?~ 23- ~~._ 25- z Icro/~- 4 (! 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D.RY Of ~ t'~1...~ • • ~.~ I V~ ~~ 1Lr~~~.~~I Card i;>lc, 1'~.~r~nsylvF~.z~ia 1 TC)13 !~Ir~ li~rcl~y certify t~i~,t tiu ~~dvcrtisi_f~~~r ~xd~~r~,~c~ by~~~,,.,~~,.~.?.~~~~~r°.~a_ ~';az':~rtisiii~, ga ~s hrc,t~d~ast i>> +.,1~~ sc~lu;~nce on ~tl~~~ dates ~,s i.~dicatc;d: ~- 5:15-3o y':'r1y ~_ 2~:00-15 ~~, i:3o-~-5 ;_. 9:45-1U e~.r~ ~~- 9:3o•a45 are ~ 115 - z , 3 ~S=~i i- c~- 9:coan~c; ~.-:a, :~ n 30-~+5 ~~, 2:~ ~-3c ~- 1.0:5-1.1. ~.r~.~, ?:;~~0-~45 x~.~~, ~1~,~~~ ~- 8:3o®ZIr} i1,~"l, 17_:~-}~5•a~.2, ~:l r. '"7 ~'~77.y '~ qnU-°-~ 5 ~t)- 1;30-~~.5 ~.~, ~a~1~=,~,~o, ~.:~1~-30 ~,.~, 3:x.;5...,2 ~ 1-- 9:30-45 ate, a.: 30~-~'~-5 12- 13- 8:00-~1 ~ ~,~.~, ~.~.:.15.~30, 2:~5-3 p;~~ 1a -- 7:.t.5-3o ~r-~ 15 - 8: 00~1"~ t,ra, ~b : C!OwlS pm 1;-- 2:15-30 ~~~, 5:00-~~.5 d,l o-~- 8:30-4 5 ~.: 21•,. 8:3o.Y~5 ~:~,, 5:1.5-a3o p 23- 8:3n-~~~ ~,r~y 3;30~..z~5 ~,~, 24- 8:oo-m15 are, 3:15~-30 2`.-,° ~?l:~0~15 ani, 3:15-30 pra 26- ~'~' - G::I.jm3o am, 2:30-,t~-5 pi~q ~? ~ f; ; . ~~ A, ~ ,~ /fl ! C:UPo1!'C2lAt~~~ ~ ~il ~ ~h ~ r~ ~ ~ if1..r~.+4J`.Ar`~"'s ~n~/"lIi''+fY°t"i!?.f~u ~ ~ ~ ~ MY COh~.t.~;Sl~ N LnF"i' E5 h1Al t s, 5~.+~urn lo-~ri Svhserib,rl bs;; ~~ DAY ^ J .. 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