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Home My WebLink About08-0842NOVINGER'S, INC., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION DAVID J. THOMAS, :NO. ai\itT'arm Defendant CONFESSION OF JUDGMENT Pursuant to the authority contained in the warrant of attorney, the original or a copy of which is attached to the Complaint filed in this action, I appear for the Defendant and confess judgment in favor of the Plaintiff and against the Defendant as follows: Principal $160,008.00 Interest (from 1/14/06) 19,754.83 Total $179,754.83 Respectfully submitted, G. Milakovic, Esquire, PA ID #34843 Beckley & Madden 212 North Third Street P.O. Box 11998 Harrisburg, PA 17108 JUDGMENT AND NOW, this 5-A day of February, 2008, in conformity with the foregoing, judgment is hereby entered in favor of Novinger's, Inc., and against David J. Thomas, in the amount of $179,754.83, plus costs. NOVINGER'S, INC., Plaintiff V. DAVID J. THOMAS, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO. COMPLAINT FOR CONFESSION OF JUDGMEiv-i AND NOW comes Plaintiff, by and through its undersigned attorneys, John G. Milakovic, Esquire, Elizabeth S. Beckley, Esquire, and Beckley & Madden, of counsel, and files this Complaint for Confession of Judgment, averring as follows: 1. Plaintiff is Novinger's, Inc. ("Novinger's"), a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, with offices located at 1441 Stoneridge Drive, Middletown, Pennsylvania. 2. Defendant is David J. Thomas ("Thomas"), an adult individual residing at 110 Walnut Street, Lemoyne, Cumberland County, Pennsylvania. 3. Attached hereto as Exhibit "A" and incorporated herein by reference is a true and correct copy of a Demand Judgment Note containing a warrant of attorney to confess judgment against Thomas. 4. Judgment is not being entered in connection with a consumer credit transaction. 5. There has been no assignment of the instrument. 6. Judgment has not been entered on the instrument in any jurisdiction. 7. All conditions precedent to the entry of judgment have occurred. Specifically, written notice of intent to proceed with the entry of this judgment was provided to Thomas and received by him on or before January 4, 2008. A true and correct copy of the notice letter is hereto attached marked as Exhibit "B." Notwithstanding his receipt of the aforesaid written notice, Thomas has failed for more than thirty (30) days to pay any part of the principal amount set forth in the Note. 8. The amount due under the instrument is as follows: Principal Interest (from 1/14/06) Total $160,008.00 19,754.83 $179,762.83 (Plus costs) WHEREFORE, Novinger's demands judgment in its favor and against Thomas, in the amount of $179,762.83, plus costs of suit. Dated:lYf v ? Respectfully submitted, Of Counsel Beckley & Madden 212 North Third Street / hn G. Milakovic P.O. Box 11998 Harrisburg, PA 17108 (717) 233-7691 Elizabefli S. Beckley Attorneys for Novinger's, Inc. 2 OVA VERIFICATION I, Jeffrey G. Depew, II, hereby verify that I am an adult individual; that I am authorized to make this Verification on behalf of Novinger's, Inc., the Plaintiff in the foregoing Complaint for Confession of Judgment; and that the facts set forth therein are true to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. Dated: f a 2j 00' Jepew, II Controller j5, k,b + 12/19/2007 13:44 7172387841 DEC-19-2W? 12:02 NOUINGER'S INC. $160,008.04 CIESCO ACCTG PAGE 04 717 902 0342 P.04i87 DATE: January 14, 2006 For value RECbNBD, David J. Thomas Nreinafta called -mAr,ER") promises to pay, on mod, to the order of Novhq r'a, inc. Oweimrbr called ` HOLDER'j, the sum of X008.06. In order to secure payment of this NOM upon written notice with thirty (30) days right to cure, I authorize, lrtravombly, tM Prothonotery, Clerk of Court, or any AttorAey of any court of Record of Pa sylvanie. or elsewhere, imm odlaWy to appaar for and 6madiatviy to cm&u a Judg wd against me in fbvor of say holder of this Note with reLtace of erroq, without stay of execution, for an amouat eqW to and not greater than the outstanding principal balance together with aha*ft and costs, and I hereby waive and release all benefit and relief from any end all appraisemwa, stay or exemption laws of any state, now in force or hoadcr to be passed.. MAKER: David J. Thomas BY: vid J. man .12/19/2007 13:44 7172367Q41 CIESCO ACCTG PAGE 05 DEC-19^ZM7 12"03 NOV I NGER' S INC. 717 902 0342 P,05/0? A. David J. 'T'homas clearly and specifically understands that by signing a Nate dated January 14, 2006, in the amount of S160.009.00 payable to Novinger's, Inc., which contains a Confusion of Judgment clause: 1 authmixe Novinger's, Inc., Plaintiff (Creditor) to enter a Judgment against me in its favor, which will give the Plaintiffa lien upon any teal estate that I own: 2. I am over twenty-one years of age, not wyedn the military service of the Vrked States and its allies nor otherwise witbin the civil relief provisions of the SoMers and Sailors Civil R.olief Act of 1947 as amended; 3. I will give up the right to any notice or opportunity to be hoard prior to the entry of this Judgment on tbs records of the Court; 4. I will agree that Novinger's, inc., Plaintiff (Creditor) can enter this Judgment without any proof of non-,payment or other default on our part; 5. I can* that I have an income its excess of 1;10,000.00 per ym; 6. I will Subject all of my property, both personal property and real eatabe, to execution (and sheriff sale), punuant to this Judgment, prior to proof of w&payment or other defhult on our part, 7. I will be unable to challenge this Judgment, should the Plaintiff enter it, except by proceeding to open or strike the Judgment and such a proceeding will result in attomey's fees and costs which I will have to pay. 8. I know and understand that it is the Confession of Judgment cis= in the described Note, which gives Plaintiff the rights, enumerated in Sub. ,12/19/2007 13:44 7172387Q41 DEC-19-2007 1203 NOVINGER'S INC. CIESCO ACCTG PAGE 06 717 902 (3342 P.0MW paragraph I through 7 of Paragraph A above. If I do not sign a Note, which condemns a Conf6mion of ludgnm clause, I understand that I would have the fallowing: 1. The right to have notice and an opportunity to be hmd prior to judgment; 2. Thn d& to bavc the burden of proviAS default rest upon the Plaintiff before ray property can be exposed to execution; 3. The right to avoid the additional expense of attorney's fees and coats mcident to opening or sulking off a confessed- ludgromt C. Fully and compt"y wing those rigba which I have prior to signing the above-described Note, and clearly aware that these rights will be given up, waived, relinquished and abandoned if I sign the Now, I nevertheleas freely arA voluntarily choose to sign the Note. my intention being to give up, waive, mlinquish and abmdon my renown rlgbu (as described in PsaMh H above) and subject to the cinumstmes described inPamgrg6 A above. I HAVE READ THIS ENTIRE FORM AND FULLY UNDERSTAND ITS CONTENTS. VVMESS: Aliffik 1 . 10 4" j Si MAKER David J. Thoam Signatum 12/19/2007 13:44 717238"41 CIESCO ACCTG PAGE 07 DEC-19-280'7 121 03 NOVINOR'S INC. p'BQNAL GIUARAN 717 902 0342 P. 9'7/87 To induce approval of this Credit amounting to $160 Q8,QQ and in consideration for Novinger's, Enc., extending credit to the above named Applicant, I the uncle dpwd, do hereby personally guarantee the prompt and 4wely payment of all w-Wes due Novinger's, Inc., from the Applicant as a result of credit extended by Novinger's, Inc. to said Applicant, and I hereby agree to indemnify Novinger's, Inc., against any and all damage, loss, expense (including xNamey's fees) and/or liability sustained by Noviagoes, Inc, by reason or, relzted to the Applicant's failure to pay all monies owed to Novinpr's, Inc. when due. Novin=er's, Inc, may enforce this FMONAL GUARANTY agiuet the undersigneed, whether or not any action is taken by Novinger's, Inc. against the Applicant. This PERSONAL GUARANTY shall bind my respective heirs, administrators, peal rcpmscntatives, mwcesaota, and assigns, sad shall endure to the bawSt of NoviWes, Inc.'s sucomors and sodW. All Novinger's, Inn tights arc cumulative, and not aitemtivc. Print Name Dated this lA ,„i,-_ dny of in+?atu ?.oa b TOTAL P.07 E, ?,61+ ? BECKLEY& MADDEN ATTORNEYIs AT LAW CRANSERRY COURT 818 NORTH THERD STREET POST C99MCE 130X 11998 HARRISBURG. PENNSYLVANIA 17108-1998 PRONE: (717) $33-7891 FAM (717) 483.3740 E-MAIL: beckL-Iftaad January 3, 2008 Mr. David J. Thomas c/o Pesce 955 Eisenhower Boulevard Harrisburg, PA 17111 Re: Your Debt to Novinger's, Inc. Dear Mr. Thomas: VIA CERTIFIED AND FIRST CLASS MAIL FILE NO. 516131 Enclosed is a copy of a letter regarding the above subject which was sent to you at your Juliana's restaurant a few days ago, by certified and first class mail, and to an address on Clearview Drive in Camp Hill which we believed to be your home address. We are now also sending it to your Pesce restaurant. Very truly yours, BECKLEY & MADDEN L---? 4lffi6o G. Milakovic l Bi@cxi, y& MAD])EN ATToRNBYe AT LAw CRANSERBY COURT 212 NORx3E['1%336M ST*+F++? P09T OFFICE HOZ 11999 HARRISBURG, PENNSYLVANIA 17108-1998 PHONE: (717) 233-7891 FAR: (717) 838-3740 E-MA311 beCkky@paMd December 31, 2007 Mr. David J. Thomas 4632 S. Clearview Drive Camp Hill, PA 17011 Re: Your Debt to Novinger's, Inc. Dear Mr. Thomas: VIA CERTIFIED AND FIRST CLASS MAIL FUX NO. 516131 We represent Novinger's, Inc. ("Novinger's"). In January, 2006, you signed a Demand Judgment Note and Personal Guaranty whereby you agreed to repay to Novinger's the sum of $160,008.00 by no later than December 31, 2006. It is now December 31, 2007, and you have not made a single payment. You are in default of your obligations. The Note provides that you authorize a judgment to be taken against you "upon written notice with thirty (30) days right to cure." Please consider this letter to be the written notice required by the Note and know that, if payment in full is not received within the thirty-day period, we will proceed to have judgment entered against you, personally, as authorized by the Note. Our action on the Note and Guaranty will be taken without prejudice simultaneously to commence collection actions against the limited liability companies for whom the labor and materials were furnished, which gave rise to the underlying commercial debt for which your Note and Personal Guaranty were given. In those simultaneous collection actions, we will seek not only the principal amount due on the projects at issue, but also will seek interest, penalties, and attorneys' fees as provided by the Contractor and Subcontractor Payment Act, 73 Pa.Stat.Ann. §501 et seq. Accordingly, you should give this matter your immediate attention to avoid the above- described consequences. Very truly yours, BE EY & MADDEN Bohm G. Milakovic 0 O Ct 00 N a 0 1 C77 ?' ?Ty76s. [• rn IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION PRAECIPE FOR WRIT OF EXECUTION Caption: NOVINGER'S, INC., Plaintiff V. DAVID J. THOMAS, Defendant Confessed Judgment ? Other : File No. 08-842 Civil Tenn Amount Due $179,754.83 Interest Atty's Comm Costs TO THE PROTHONOTARY OF THE SAID COURT: The undersigned hereby certifies that the below does not arise out of a retail installment sale, contract, or account based on a confession of judgment, but if it does, it is based on the appropriate original proceeding filed pursuant to act 7 of 1966 as amended; and for real property pursuant to Act 6 of 1974 as amended. Issue writ of execution in the above matter to the Sheriff of Cumberland County, for debt, interest and costs, upon the following described property of the defendant (s) Any membership interest of David J. Thanas in the limited liability cagmry known as "6108 Carlisle Pike Restaurant Canpany, LLC," garnishee * PRAECIPE FOR ATTACHMENT EXECUTION Issue writ of attachment to the Sheriff of Cumberland County, for debt, interest and costs, as above, directing attachment against the above-named garnishee(s) for the following property (if real estate, supply six copies of the description; supply four copies of lengthy personalty list) Any menbexship interest as above-described which the garnishee admits in response to the Interrogatories or which is otherwise found to exist and all other property of the defendant(s) in the possession, custody or control of the said garnishee(s). ? (Indicate) Index this writ against the garnishee (s) as a lis pendens inst real estate of the defendant(s) described in the attached exhibit. Date September 21, 2009 Signature: Print Name: John G. Asilakovic Address: 212 N_ t P.O.Box 11998 Harrisburcr, PA 17108-1998 Attorney for: Novinger's, Inc. Telephone: (717) 233-7691 Supreme Court ID No: 34843 o 'Mc R.rY 2009 SEP 22 A6, to: tt 4. Curs UNN Be(Oe-l 4 ftlde1 Ci 0 rte ?. 30 "o S6 r S0 w? y ,pi d? rtss IrrU"` vYa?'ordc3 +d CTaIh,S?.cC, 6/0 g C?'lrslc fike lec5'??rcwf Cdw?a?u/ ??C (a104" Carlrs?e. ??ke P't 170 ?u, e Co $--,)- , v0 NOVINGER'S, INC., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION DAVID J. THOMAS, : NO. 08-842 Civil Term Defendant INTERROGATORIES TO GARNISHEE 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC TO: 6108 Carlisle Pike Restaurant Company, LLC 6108 Carlisle Pike Mechanicsburg, PA 17050 A. You are required to file answers to the following interrogatories within twenty (20) days after service upon you. Failure to do so may result in judgment being entered against you. B. The term "Defendant" means David J. Thomas ("Thomas") C. "You" means 6108 Carlisle Pike Restaurant Company, LLC, including, without r limitation, your agents, employees, officers, directors, successors and assigns. D. "Property" means any real or personal property of any kind or nature whatsoever, including, without limitation, any accounts of any kind, negotiable instruments, bonds, certificates of deposit, securities, money, certificates of ownership, ownership interests, membership interests, or membership certificates. E. By service of the Writ of Execution upon you, all property of the Defendant subject to, attachment which was then in your possession, custody or control was attached, including all - property of the Defendant which comes into your possession thereafter. WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) N008-842 Civil CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due NOVINGER'S, INC. Plaintiff (s) From DAVID J. THOMAS (1) You are directed to levy upon the property of the defendant (s)and to sell ANY MEMBERSHIP INTEREST OF DAVID J. THOMAS IN THE LIMITED LIABILITY COMPANY KNOWN AS "6108 CARLISLEPIKE RESTAURANT COMPANY, LLC", GARNISHEE, 6108 CARLISLE PIKE, MECHAINCSBURG, PA 17050. (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of GARNISHEE(S) as follows: ANY MEMBERSHIP INTEREST AS ABOVE-DESCRIBED WHICH THE GARNISHEE ADMITS IN RESPONSE TO THE INTERROGATORIES OR WHICH IS OTHERWISE FOUND TO EXIST. and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof; (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due$179,754.83 Interest L.L.$.50 LL Atty's Comm % Atty Paid $54.50 Plaintiff Paid Date: September 22, 2009 (Seal) Due Prothy $2.00 Other Costs A11% C is R. Long, Pr ary By: Deputy REQUESTING PARTY: Name John G. Milakovic, Esquire Address: Beckley & Madden, 212 N. Third Street, P.O. Box 11998, Harrisburg, PA 17108-1998 Attorney for: Plaintiff Telephone: (717) 233-7691 Supreme Court ID No. 34843 Sheriffs Office of Cumberland County R Thomas Kline RLM-OrHCE Sheriff OF THE' PROTHONOTARY Ronny R Anderson Chief Deputy 2009OCT -2 AM {0; 28 Jody S Smith Civil Process Sergeant Edward L Schorpp PENNSYLVANIA Solicitor Novinger's Inc I vs. Case Number David J Thomas 2008-842 SHERIFF'S RETURN OF SERVICE 09/29/2009 03:51 PM - Timothy R. Black, Deputy Sheriff, who being duly sworn according to law, states that on September 29, 2009 at 1540 hours, attached as herein commanded all goods, chattels, rights, debts, credits, and monies of the within named defendant, to wit: David J. Thomas, in the hands, possession, or control of the within named garnishee, 6108 Carlisle Pike Restaurant Company, LLC, 6108 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania 17050, by handing to Ben Salerno, General Manager, personally three copies of interrogatories together with three true and attested copies of the writ of execution and made the contents there of known to him. The writ of execution and notice to defendant was mailed on 10-02-09 to David J. Thomas, 6108 Carlisle Pike Restaurant Company, LLC, 6108 Carlisle Pike, Mechanicsburg, PA 17050. So Answers, R. Thomas Kline, Sheriff By • I- De ut Sheriff John G. Milakovic, Esquire Elizabeth S. Beckley, Esquire Beckley & Madden 212 North Third Street P.O. Box 11998 Harrisburg, PA 17108 (717) 233-7691 Attorneys for Plaintiff NOVINGER'S, INC., Plaintiff V. DAVID J. THOMAS, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION NO. 08-842 Civil Term IN RE: 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC, Garnishee PLAINTIFF'S MOTION FOR ENTRY OF A CHARGING ORDER UPON DEFAULT OF GARNISHEE AND FOR OTHER RELIEF AND NOW comes Plaintiff, by and through its undersigned attorneys, and files this Motion for the Entry of a Charging Order Upon Default of Garnishee and for Other Relief, and in support thereof, avers as follows: 1. Plaintiff ("Novinger's") commenced this action by filing a Complaint for Confession of Judgment on February 5, 2008. At that same time, Novinger's filed a Confession of Judgment and, on that same day, judgment was entered in favor of Novinger's and against Defendant ("Thomas") in the amount of $179,754.83. No judge has ruled upon any issue in this case or in any related case. 2. On or about September 22, 2009, Novinger's filed a praecipe for the issuance of a writ of execution, directing the Sheriff to attach any interest "of David J. Thomas in the limited 41 liability company known as `6108 Carlisle Pike Restaurant Company, LLC,' garnishee." At that same time, Novinger's forwarded Interrogatories to Garnishee to be served upon the aforesaid garnishee ("6108") along with the writ. True and correct copies of the aforesaid praecipe for writ of execution and garnishee interrogatories are hereto attached marked as Exhibit A. 3. The Sheriff served the writ and garnishee interrogatories upon 6108 on September 29, 2009. A true and correct copy of the Sheriff's Return of Service is hereto attached marked as Exhibit B. 4. The garnishee, 6108, has not filed or served answers to the garnishee interrogatories. 5. A written notice of intention to have a default judgment entered against the garnishee was mailed to the garnishee at least ten (10) days prior to the filing of this Motion, and after default occurred, on October 20, 2009. A true and correct copy of the aforesaid ten-day notice is hereto attached marked as Exhibit C. 6. Pa.R.Civ.P. 3146 provides for the entry of a judgment against a garnishee upon its default. 7. In Zokaites v. Pittsburgh Irish Pubs, LLC, 962 A.2d 1220 (Pa.Super. 2008), the Superior Court held that "a `charging order' ... is the remedy for a judgment creditor against a member's interest in a limited liability company." 962 A.2d at 1226. By means of the current Motion, Novinger's seeks the entry of such a charging order against Thomas's economic interest in 6108, precisely as set forth in Zokaites. 8. Because 6108 did not respond to the interrogatories, however, and because 6108 recently sold all or substantially all of its assets, Novinger's also seeks the following additional relief from the Court, in the order granting this Motion: 2 A. A direction that 6108 be required, on pain of contempt, to provide the following information (including all documents evidencing such information) to Novinger's: (i) what Thomas's interests are in the garnishee LLC (including without limitation the LLC articles, operating agreement, membership certificates, and any other LLC organizational documents); (ii) all assets or money in the garnishee LLC prior to service of the writ of execution (including without limitation all bank account statements and income and expense statements and balance sheets); (iii) all assets or money which came into the garnishee LLC subsequent to service of the writ of execution (including without limitation all bank account statements and income and expense statements and balance sheets); (iv) all transfers of assets or money made by the garnishee LLC or on its behalf, subsequent to service of the writ of execution (including without limitation all bank account statements and income and expense statements and balance sheets); and (v) all federal and state tax returns of the LLC, if any, for the past two years; B. A direction that Thomas be required to provide to Novinger's, on pain of contempt, the following information (including all documents evidencing such information): (i) what Thomas's interests are in the garnishee LLC (including without limitation the LLC articles, operating agreement, membership certificates, and any other LLC organizational documents); (ii) all assets or money in any Thomas bank account, or other account in which money or assets were held on behalf of Thomas, prior to service of the writ of execution; 3 (iii) all assets or money which came into any Thomas bank account, or other account in which money or assets were held on behalf of Thomas, subsequent to service of the writ of execution; (iv) all debts of Thomas outstanding as of the date of service of the writ of execution, including without limitation all debts owed to local, state, or federal tax authorities; (v) all debts of Thomas on which any payment was made subsequent to service of the writ of execution, including without limitation all debts owed to local, state, or federal tax authorities; and (vi) all personal state and federal income tax returns, along with all schedules thereto, for the past two years. Dated: Of Counsel Beckley & Madden 212 North Third Street P.O. Box 11998 Harrisburg, PA 17108 (717) 233-7691 Respectfully submitted, J G. Milakovic Elizabet S. Beckley Attorneys for Plaintiff 4 IN TEE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION PRAECIPE FOR WRIT OF EXECUTION Caption: ?x Confessed Judgment NWINGER' S , INC. , ? Other Plaintiff V. DAVID J. THOMAS, Defendant : File No. 08-842 Civil Terns : Amount Due $179,754.83 : Interest Atty's Comm Costs TO THE PROTHONOTARY OF THE SAID COURT: The undersigned hereby certifies that the below does not arise out of a retail installment sale, contract, or account based on a confession of judgment, but if it does, it is based on the appropriate original proceeding filed pursuant to act 7 of 1966 as amended; and for real property pursuant to Act 6 of 1974 as amended. Issue writ of execution in the above matter to the Sheriff of Ctunberland County, for debt, interest and costs, upon the following described property of the defendant (s) Any manbership interest of David J. Thanas in the limited liability carpany known as "6108 Carlisle Pike Restaurant Carpany, LTC," garnishee PRAECIPE FOR ATTACHMENT EXECUTION Issue writ of attachment to the Sheriff of Ctanberland County, for debt, interest and costs, as above, directing attachment against the above-named garnishee(s) for the following property (if real estate, supply six copies of the description; supply four copies of lengthy personalty list) Any manbership interest as above-described which the garnishee admits in response to the Interrogatories or which is otherwise found to exist and all other property of the defendant(s) in the possession, custody or control of the said garnishee(s). Date ? (Indicate) Index this writ against the garnishee (s) as a lis defendant(s) described in the attached exhibit. Septenber 21, 2009 Signature: Print Name: Address: Attorney for: Telephone: pendens ' t real estate of the John G. Milakovic 212 N- Thirj t P.O. 11998 Harris?bur l P-1998 NovingerIs, Inc. (717) 233-7691 Supreme Court ID No: 34843 NOVINGER'S, INC., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION DAVID J. THOMAS, : NO. 08-842 Civil Term Defendant INTERROGATORIES TO GARNISHEE 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC TO: 6108 Carlisle Pike Restaurant Company, LLC 6108 Carlisle Pike Mechanicsburg, PA 17050 A. You are required to file answers to the following interrogatories within twenty (20) days after service upon you. Failure to do so may result in judgment being entered against you. B. The term "Defendant" means David J. Thomas ("Thomas") C. "You" means 6108 Carlisle Pike Restaurant Company, LLC, including, without limitation, your agents, employees, officers, directors, successors and assigns. D. "Property" means any real or personal property of any kind or nature whatsoever, including, without limitation, any accounts of any kind, negotiable instruments, bonds, certificates of deposit, securities, money, certificates of ownership, ownership interests, membership interests, or membership certificates. E. By service of the Writ of Execution upon you, all property of the Defendant subject to attachment which was then in your possession, custody or control was attached, including all property of the Defendant which comes into your possession thereafter. INTERROGATORIES IN ATTACHMENT 1. At the time you were served with these Interrogatories or at any subsequent time did you owe Defendant any money or were you liable to Defendant on any negotiable or other written instrument, or did Defendant claim that you owed Defendant any money or were liable to Defendant for any reason? If so, describe the nature of the debt or liability and the amount thereof, or the nature of the claimed debt or liability and the claimed amount thereof. ANSWER: 2. At the time you were served with these Interrogatories or at any subsequent time was there in your possession, custody or control, or in the joint possession, custody or control of yourself and one or more other persons, any "property" owned solely or in part by Defendant? If so, describe the property and the value thereof. ANSWER: 2 3. At the time you were served with these Interrogatories or at any subsequent time did you hold legal title to any property owned solely or in part by Defendant, or in which Defendant held or claimed any interest? If so, describe the property and the value thereof. ANSWER: 4. At the time you were served with these Interrogatories or at any subsequent time did you hold as fiduciary any property in which Defendant had an interest? If so, describe the property and the value thereof. ANSWER: 3 5. At the time you were served with these Interrogatories or at any subsequent time, did Defendant transfer or deliver any property to you or to any person or place pursuant to your direction or consent, and, if so, what was the property transferred or delivered; to whom was it transferred or delivered; when was it transferred or delivered; and what was the consideration therefor? ANSWER: 6. At any time after you were served with these Interrogatories, did you pay, transfer, or deliver any property to Defendant, or to any person or place pursuant to Defendant's direction, or otherwise discharge any claim of Defendant against you? If so, describe precisely what you did; the value of the property paid, transferred, or delivered; why the payment, transfer, or delivery was effected; and when it was made. ANSWER: 4 7. At the time you were served with these Interrogatories or at any subsequent time did you have property of Defendant, or property in which it has any interest, on deposit or otherwise in your possession, custody or control other than the property identified in your answers to the previous Interrogatories? If so, describe what you have and the value thereof. ANSWER: 8. If you are a bank or other financial institution, at the time you were served or at any subsequent time did Defendant have funds on deposit in an account in which funds are deposited electronically on a recurring basis and which are identified as being funds that upon deposit are exempt from execution, levy or attachment under Pennsylvania or federal law? If so, please identify each account and state the reason for the exemption, the amount being withheld under each exemption, and the entity electronically depositing those funds on a recurring basis. ANSWER: 5 9. If you are a bank or other financial institution, at the time you were served or at any subsequent time did Defendant have any funds on deposit in an account in which the funds on deposit, not including any otherwise exempt funds, did not exceed the amount of the general monetary exemption under 42 Pa.C.S. §8123? If so, please identify each account. ANSWER: 10. To the extent not heretofore set forth, please describe any and all membership or other interests which Defendant has in you, including the value thereof. ANSWER: 11. To the extent not heretofore set forth, please describe the dates and amounts of all contributions made by Defendant to you. ANSWER: 6 12. To the extent not heretofore set forth, describe the dates and amounts of any distributions to Defendant which you have made or intend to make. ANSWER: 7 DATED: September 21, 2009 Of Counsel BECKLEY & MADDEN 212 North Third Street P. O. Box 11998 Harrisburg, PA 17108-1998 (717) 233-7691 Respectfully submitted, Jo G. Milakovic, Esquire it? Thomas S. Beckley, Esquire Attorneys for Plaintiff 8 Sheriff s Office of Cumberland Co (??`'?? unty R Thomas Kline Sheri Ronny R Anderson Chief Deputy Jody S Smith Civil Process Sergeant o S6PrF€ Edward L Schorpp Solicitor Novinger's Inc vs. David J Thomas Case Number 2008-842 SHERIFF'S RETURN OF SERVICE 09/29/2009 03:51 PM - Timothy R. Black, Deputy Sheriff, who being duly sworn according to law, states that on September 29, 2009 at 1540 hours, attached as herein commanded all goods, chattels, rights, debts, credits, and monies of the within named defendant, to wit: David J. Thomas, in the hands, possession, or control of the within named garnishee, 6108 Carlisle Pike Restaurant Company, LLC, 6108 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania 17050, by handing to Ben Salerno, General Manager, personally three copies of interrogatories together with three true and attested copies of the writ of execution and made the contents there of known to him. The writ of execution and notice to defendant was mailed on 10-02-09 to David J. Thomas, 6108 Carlisle Pike Restaurant Company, LLC, 6108 Carlisle Pike, Mechanicsburg, PA 17050. So Answers, R. Thomas Kline, Sheriff By -- Deptoy Sheriff- NOVINGER'S, INC., Plaintiff V. DAVID J. THOMAS, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION : NO. 08-842 Civil Term IN RE: 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC, Garnishee To: 6108 Carlisle Pike Restaurant Company, LLC, 6108 Carlisle Pike, Mechanicsburg, PA 17050 (Garnishee) Date of Notice: October 20, 2009 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 J `G. Milakovic ECKLEY & MADDEN 212 North Third Street P.O. Box 11998 Harrisburg, PA 17108 Attorneys for Plaintiff CERTIFICATE OF SERVICE It is hereby certified that a copy of the foregoing document was this day served upon the following persons in the manner below indicated. FIRST CLASS MAIL Mr. David J. Thomas 6108 Carlisle Pike Mechanicsburg, PA 17050 Defendant 6108 Carlisle Pike Restaurant Company, LLC 212 Locust Street Suite 500 Harrisburg, PA 17101 Garnishee Dated: I l l-Ll Q I G. Milakovic FILED. 20C9 NOV -3 M41 I : 53 k NOV 0 4 20096) NOVINGER'S, INC., Plaintiff V. DAVID J. THOMAS, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO. 08-842 Civil Term IN RE: 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC, Garnishee ORDER AND NOW, this `th day of Iv dV . , JtM , upon consideration of Plaintiff s Motion for Entry of a Charging Order and for Other Relief, it is hereby ordered that said Motion is GRANTED. 1. The judgment of the Plaintiff, Novinger's, Inc., in the sum of $179,754.83, with interest from February 5, 2008, plus costs, be and hereby is charged against the economic interest of the Defendant, David J. Thomas ("Thomas"), in the limited liability company known as 6108 Carlisle Pike Restaurant Company, LLC ("6108") 2. 6108 is hereby directed, on pain of contempt, to provide the following information (including all documents evidencing such information) to Novinger's within ten (10) days of the date of this Order: (i) an identification of precisely what Thomas's interests are in 6108 (including without limitation the LLC articles, operating agreement, membership certificates, and any other LLC organizational documents); (ii) all assets or money in 6108 prior to service of the writ of execution (including without limitation all bank account statements and income and expense statements and balance sheets); (iii) all assets or money which came into 6108 subsequent to service of the writ of execution (including without limitation all bank account statements and income and expense statements and balance sheets); (iv) all transfers of assets or money made by 6108 or on its behalf, or by 6108 on behalf of Thomas, subsequent to service of the writ of execution (including without limitation all bank account statements and income and expense statements and balance sheets); and (v) all federal and state tax returns of 6108, if any, for the past two years (if 6108 is a "disregarded entity" for federal tax purposes, provide the document wherein that alternative was "checked"); I Thomas is hereby directed to provide to Novinger's, on pain of contempt, the following information (including all documents evidencing such information), within ten (10) days of the date of this Order: (i) an identification of precisely what Thomas's interests are in 6108 (including without limitation the LLC articles, operating agreement, membership certificates, and any other LLC organizational documents); (ii) all assets or money in any Thomas bank account, or other account in which money or assets were held on behalf of Thomas, prior to service of the writ of execution; 2 .' (iii) all assets or money which came into any Thomas bank account, or other account in which money or assets were held on behalf of Thomas, subsequent to service of the writ of execution; (iv) all debts of Thomas outstanding as of the date of service of the writ of execution, including without limitation all debts owed to local, state, or federal tax authorities; (v) all debts of Thomas on which any payment was made subsequent to service of the writ of execution, including the dates and amounts of each payment and the source of funds therefore, and including without limitation all debts owed to local, state, or federal tax authorities; and (vi) all personal state and federal income tax returns, along with all schedules thereto, for the past two years. BY THE COURT: Distribution List: John G. Milakovic Elizabeth S. Beckley Beckley & Madden 212 North Third Street P.O. Box 11998 Harrisburg, PA 17108 Attorneys for Plaintiff ,,-15avid J. Thomas 6108 Carlisle Pike Mechanicsburg, PA 17050 Defendant t l f C. f D? 3 Distribution List (Continued): 6108 Carlisle Pike Restaurant Company, LLC 212 Locust Street Suite 500 Harrisburg, PA 17101 Garnishee "^ r Y AL?..? ??i r1.lL OF THE ?' ?; i` i "??'JTRRY 2009 NOV -6 Ph 21 IN THE COURT OF COMMONPLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CP;M DWISIOI? PRAECIPE FOR WWT OF EXECUTION Caption: Confessed Judgment NOM 'GER' S , INC. . [] Other Plaintiff : File No. 08-842 Civil Term V. AmauatAue $179,754.83 : DAVID J. THa,%S, Defendant £ntcrest - Atty's Comm Costs , TO THE PROTHONOTARY OF THE SAID COURT: The undorsighed bereby certifies that the below does not arise out of a retail installment sale, contract, or account based on a confession of judgment, but if it does, it is based on the appropriate original proceeding filed pursuant to act 7 of 1966 as amended; and for real property pursuant to Act 6 of 1974 as arnended. Issue writ of execution in the above matter to the Sheriff of _ Dauphin County, for debt, interest and costs, upon the following described property of the defendant (s) Any membership interest of Defendant in the limited liability company knoom as "1951 Restaurant ComMy, LLC," garnishee. ws 1 Ah I _ ,mho.. Ap 1'7 ro3' - P CIPR FOR ATTACHMENT EXECUTION Issue writ of attachment to the Sheriff. of Dauphin County, for debt, interest and costs, as above, directing attaclrment against the above-named garnlshee(s) for the following property (if real estate, supply six copies of the description; supply four copies' of lengthy personalty list) Any nimbership interest as. above-described, and all other property of the defendant(s) in the possession, custody or control of the said garnishee(s). ? (Indicate) Index this writ again"t the vamislaee (s) aq a lis pe s a inst real estate of the defendant(s) described in the attached exhibit, Date W14 Signature: Print Name: ohn G. Alakovic Address: Beckley & Madden., P.O. Box 11998 f4rrisburg, PA 17108 Attorney for: Plaintiff Telephone: (717) 233-7691 Supreme Court ID No: 34$43 CA FILED OFFICE OF T)te Pit-"0l apo9 Nov io la:oopm pY-? U4.5 o Po A-" a?'.5o GBF a4..5o 01 Po AT1'Y aV-'p !5a l PT* 2133,.315 i12 SIT OF 1E'XECUTION and/or ATTACHM*t COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) NO 08-842 Civil CIVIL ACTION - LAW TO THE SHERIFF OF DAUPHIN COUNTY: To satisfy the debt, interest and costs due NO'VINGER'S, INC., Plaintiff (s) From DAVID J. THOMAS, 1851 Arsonal Road, Harrisburg, PA 17103 (1) You are directed to levy upon the property of the defendant (s)and to sell (3) You are also directed to attach the property of the defendant(s) not levied upon in the possession of GARNISHEE(S) as follows: 1851 RESTAURANT COMPANY, LLC Any membership interest of Defendant in the limited liability company and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined 'from paying any debt to or for the account of the defendant (s) and fiom delivering any property of the defendant (s) or otherwise disposing thereof; (3) if property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due $179,754.83 Interest Any's Comm % Atty Paid $76.50 Plaintiff Paid Date: 11110/09 (Seal) I-L. Due Prothy 52.00 Other Costs 061is R. Long, Pr a By: Deputy REQUESTING PARTY: Name JOHN G. MILAKOVIC, ESQUIRE Address: BECKLEY & MADDEN PO BOX 11998 HARRISBURG, PA 17148 Attorney for: PLAINTIFF Telephone: 717-233-7691 Supreme Court 10 No. 34843 FILET 2010 JA' N 13 AI 13- 7 X!n C• LY°, John G. Milakovic, Esquire Elizabeth S. Beckley, Esquire Beckley & Madden 212 North Third Street P.O. Box 11998 Harrisburg, PA 17108 (717) 233-7691 Attorneys for Plaintiff NOVINGER'S, INC., Plaintiff V. DAVID J. THOMAS, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION NO. 08-842 Civil Term ....................................................................... IN RE: 1851 RESTAURANT COMPANY, LLC, Garnishee .................................................................. PLAINTIFF'S MOTION FOR ENTRY OF A CHARGING ORDER UPON ADMISSION OF GARNISHEE AND NOW comes Plaintiff, by and through its undersigned attorneys, and files this Motion for the Entry of a Charging Order Upon Admission of Garnishee, and in support thereof, avers as follows: 1. Plaintiff ("Novinger's") commenced this action by filing a Complaint for Confession of Judgment on February 5, 2008. At that same time, Novinger's filed a Confession of Judgment and, on that same day, judgment was entered in favor of Novinger's and against Defendant ("Thomas") in the amount of $179,754.83. By Order dated November 6, 2009, Judge Ebert entered a charging order against the economic interest of Thomas in the limited liability company known as 6108 Carlisle Pike Restaurant Company, LLC. 2. On or about November 10, 2009, Novinger's caused the issuance of a writ of execution, directing the Sheriff of Dauphin County to attach any interest of Thomas in the limited liability company known as 1851 Restaurant Company, LLC, garnishee. At that same time, Novinger's forwarded Interrogatories to Garnishee to be served upon the aforesaid garnishee ("1851") along with the writ. True and correct copies of the aforesaid writ of execution and garnishee interrogatories are hereto attached marked as Exhibit A. 3. The Sheriff served the writ and garnishee interrogatories upon 1851 on December 8, 2009. A true and correct copy of the Sheriff's Return of Service is hereto attached marked as Exhibit B. 4. The garnishee, 1851, served answers to the garnishee interrogatories on January 4, 2010. A true and correct copy of those answers are hereto attached marked as Exhibit C. 5. In response to Interrogatory Number 10, the garnishee, 1851, stated as follows: 1851 Restaurant Company LLC is a limited liability company in which Defendant has a 50% membership interest. 6. In Zokaites v. Pittsburgh Irish Pubs, LLC, 962 A.2d 1220 (Pa.Super. 2008), the Superior Court held that "a `charging order' ... is the remedy for a judgment creditor against a member's interest in a limited liability company." 962 A.2d at 1226. By means of the current Motion, Novinger's seeks the entry of such a charging order against Thomas's economic interest in 1851, precisely as set forth in Zokaites. 2 WHEREFORE, Novinger's respectfully requests that the Court issue a charging order in the form hereto attached. Dated: 1/f 0/! (i? Respectfully submitted, Of Counsel Beckley & Madden 212 North Third Street ohri G. Milakovic P.O. Box 11998 Harrisburg, PA 17108 (717) 233-7691 Cam' > i J Elizab th S. Beckley Attorneys for Plaintiff 3 OT OF EXECUTION and/or ATTACHMI COMMONWEALTH OF PENNSYLVANIA) NO 08-842 Civil COUNTY OF CUMBERLAND) CIVIL ACTION - LAW TO THE SHERIFF OF DAUPHIN COUNTY: To satisfy the debt, interest and costs due NOVINGER'S, INC., Plaintiff (s) From DAVID J. THOMAS, 1851 Arsonal Road, Harrisburg, PA 17103 (1) You are directed to levy upon the property of the defendant (s)and to sell (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of GARNISHEE(S) as follows: 1851 RESTAURANT COMPANY, LLC Any membership interest of Defendant in the limited liability company and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof; (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due $179,754.83 Interest Atty's Comm % Atty Paid $76.50 Plaintiff Paid Date: 11/10/09 (Seal) REQUESTING PARTY: Name JOHN G. MILAKOVIC, ESQUIRE Address: BECKLEY & MADDEN PO BOX 11998 HARRISBURG, PA 17108 Attorney for: PLAINTIFF Telephone: 717-233-7691 Supreme Court ID No. 34843 L.L. Due Prothy $2.00 Other Costs _ 160-u pkW c ArtisBy: Deputy 0 W W" FROM RECORD 10 To OWN ape w. I here unto set my Iola 14 ud of Wd Court at Ca". P1. `? a0cq -ell ka.zh&?'l AL 0 0 NOVINGER'S, INC., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION oP2 0 Q C V 1 r_ DAVID J. THOMAS, : NO. 08-842 Civil Term Defendant INTERROGATORIES TO GARNISHEE Jr.? 1851 RESTAURANT COMPANY, LLC cn TO: 1851 Restaurant Company, LLC 1851 Arsenal Road Harrisburg, PA 17103 A. You are required to file answers to the following interrogatories within twenty (20) days after service upon you. Failure to do so may result in judgment being entered against you. B. The term "Defendant" means David J. Thomas ("Thomas"). C. "You" means 1851 Restaurant Company, LLC, including, without limitation, your agents, employees, officers, directors, successors and assigns. D. "Property" means any real or personal property of any kind or nature whatsoever, including, without limitation, any accounts of any kind, negotiable instruments, bonds, certificates of deposit, securities, money, certificates of ownership, ownership interests, membership interests, or membership certificates. E. By service of the Writ of Execution upon you, all property of the Defendant subject to attachment which was then in your possession, custody or control was attached, including all property of the Defendant which comes into your possession thereafter. 0 0 INTERROGATORIES IN ATTACHMENT 1. At the time you were served with these Interrogatories or at any subsequent time did you owe Defendant any money or were you liable to Defendant on any negotiable or other written instrument, or did Defendant claim that you owed Defendant any money or were liable to Defendant for any reason? If so, describe the nature of the debt or liability and the amount thereof, or the nature of the claimed debt or liability and the claimed amount thereof. ANSWER: 2. At the time you were served with these Interrogatories or at any subsequent time was there in your possession, custody or control, or in the joint possession, custody or control of yourself and one or more other persons, any "property" owned solely or in part by Defendant? If so, describe the property and the value thereof. ANSWER: 2 • 0 3. At the time you were served with these Interrogatories or at any subsequent time did you hold legal title to any property owned solely or in part by Defendant, or in which Defendant held or claimed any interest? If so, describe the property and the value thereof. ANSWER: 4. At the time you were served with these Interrogatories or at any subsequent time did you hold as fiduciary any property in which Defendant had an interest? If so, describe the property and the value thereof. ANSWER: 3 0 5. At the time you were served with these Interrogatories or at any subsequent time, did Defendant transfer or deliver any property to you or to any person or place pursuant to your direction or consent, and, if so, what was the property transferred or delivered; to whom was it transferred or delivered; when was it transferred or delivered; and what was the consideration therefor? ANSWER: 6. At any time after you were served with these Interrogatories, did you pay, transfer, or deliver any property to Defendant, or to any person or place pursuant to Defendant's direction, or otherwise discharge any claim of Defendant against you? If so, describe precisely what you did; the value of the property paid, transferred, or delivered; why the payment, transfer, or delivery was effected; and when it was made. ANSWER: 4 0 0 7. At the time you were served with these Interrogatories or at any subsequent time did you have property of Defendant, or property in which it has any interest, on deposit or otherwise in your possession, custody or control other than the property identified in your answers to the previous Interrogatories? If so, describe what you have and the value thereof. ANSWER: 8. If you are a bank or other financial institution, at the time you were served or at any subsequent time did Defendant have funds on deposit in an account in which funds are deposited electronically on a recurring basis and which are identified as being funds that upon deposit are exempt from execution, levy or attachment under Pennsylvania or federal law? If so, please identify each account and state the reason for the exemption, the amount being withheld under each exemption, and the entity electronically depositing those funds on a recurring basis. ANSWER: 5 0 • 9. If you are a bank or other financial institution, at the time you were served or at any subsequent time did Defendant have any funds on deposit in an account in which the funds on deposit, not including any otherwise exempt funds, did not exceed the amount of the general monetary exemption under 42 Pa.C.S. §8123? If so, please identify each account. ANSWER: 10. To the extent not heretofore set forth, please describe any and all membership or other interests which Defendant has in you, including the value thereof. ANSWER: 11. To the extent not heretofore set forth, please describe the dates and amounts of all contributions made by Defendant to you. ANSWER: 6 • • 12. To the extent not heretofore set forth, describe the dates and amounts of any distributions to Defendant which you have made or intend to make. ANSWER: 7 LJ DATED: November 20, 2009 Of Counsel BECKLEY & MADDEN 212 North Third Street P. O. Box 11998 Harrisburg, PA 17108-1998 (717) 233-7691 0 Respectfully submitted, G. Milakovic, Esquire f Thomas S. Beckley, Esquire Attorneys for Plaintiff 8 10 U9 of the S4,ri Mary Jane Snyder Real Estate Depu William T. Tully Solicitor Commonwealth of Pennsylvania County of Dauphin Charles E. Sheaffer a Chief Deputy Michael W. Rinehart Assistant Chief Deputy Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 780-6590 fax: (717) 255-2889 Jack Lotwick Sheriff NOVINGERS INC. DAVID J THOMAS Sheriff s Return No. 2009-CV-15682 VS And now: DECEMBER 8, 2009 at 2:25:00 PM served the within WRIT OF EXECUTION & INTERROGATORIES upon 1851 RESTAURANT COMPANY, LLC by personally handing to JENNARO FATTERUSSO; EMP. IN CHARGE true attested copies of the original WRIT OF EXECUTION & INTERROGATORIES and making known to him/her the contents thereof at 955 EISENHOWER BLVD HARRISBURG PA 17111 So Answers, ?kwl? Sheriff of Dauphin County, Pa. Deputy: S SCHAEFFER Plaintiff: NOVINGERS INC. Sheriffs Costs: $ PAID BY COUNTY 1851 Restaurant Company, LLC J?,.t1 ` 955 Eisenhower Boulevard • Harrisburg • PA • 17111 January 4, 2010 John G. Milakovic, Esquire Beckley & Madden 212 North Third Street P.O. Box 11998 Harrisburg, PA 17108-1998 Re: Novinger's v. Thomas No. 08-842 Civil Term (Cumberland Countv) Dear Mr. Milakovic: Enclosed are our responses to the Interrogatories to Garnishee 1851 Restaurant Company, LLC, in the above-referenced matter. Very truly yours, D. Mark Thomas Enclosures 100104-M i l a ko v i c. wpd NOVINGER'S, INC., Plaintiff V. DAVID J. THOMAS, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION ?c NO. 08-842 Civil Term INTERROGATORIES TO GARNISHEE 1851 RESTAURANT COMPANY, LLC TO: 1851 Restaurant Company, LLC 1851 Arsenal Road Harrisburg, PA 17103 A. You are required to file answers to the following interrogatories within twenty (20) days after service upon you. Failure to do so may result in judgment being entered against you. B. The term "Defendant" means David J. Thomas ("Thomas"). C. "You" means 1851 Restaurant Company, LLC, including, without limitation, your agents, employees, officers, directors, successors and assigns. D. "Property" means any real or personal property of any kind or nature whatsoever, including, without limitation, any accounts of any kind, negotiable instruments, bonds, certificates of deposit, securities, money, certificates of ownership, ownership interests, membership interests, or membership certificates. E. By service of the Writ of Execution upon you, all property of the Defendant subject to attachment which was then in your possession, custody or control was attached, including all property of the Defendant which comes into your possession thereafter. INTERROGATORIES IN ATTACHMENT 1. At the time you were served with these Interrogatories or at any subsequent time did you owe Defendant any money or were you liable to Defendant on any negotiable or other written instrument, or did Defendant claim that you owed Defendant any money or were liable to Defendant for any reason? If so, describe the nature of the debt or liability and the amount thereof, or the nature of the claimed debt or liability and the claimed amount thereof. ANSWER: No 2. At the time you were served with these Interrogatories or at any subsequent time was there in your possession, custody or control, or in the joint possession, custody or control of yourself and one or more other persons, any "property" owned solely or in part by Defendant? If so, describe the property and the value thereof. ANSWER: No 2 3. At the time you were served with these Interrogatories or at any subsequent time did you hold legal title to any property owned solely or in part by Defendant, or in which Defendant held or claimed any interest? If so, describe the property and the value thereof. ANSWER: No 4. At the time you were served with these Interrogatories or at any subsequent time did you hold as fiduciary any property in which Defendant had an interest? If so, describe the property and the value thereof. ANSWER: No 3 5. At the time you were served with these Interrogatories or at any subsequent time, did Defendant transfer or deliver any property to you or to any person or place pursuant to your direction or consent, and, if so, what was the property transferred or delivered; to whom was it transferred or delivered; when was it transferred or delivered; and what was the consideration therefor? ANSWER: No 6. At any time after you were served with these Interrogatories, did you pay, transfer, or deliver any property to Defendant, or to any person or place pursuant to Defendant's direction, or otherwise discharge any claim of Defendant against you? If so, describe precisely what you did; the value of the property paid, transferred, or delivered; why the payment, transfer, or delivery was effected; and when it was made. ANSWER: No 4 7. At the time you were served with these Interrogatories or at any subsequent time did you have property of Defendant, or property in which it has any interest, on deposit or otherwise in your possession, custody or control other than the property identified in your answers to the previous Interrogatories? If so, describe what you have and the value thereof. ANSWER: No S. If you are a bank or other financial institution, at the time you were served or at any subsequent time did Defendant have funds on deposit in an account in which funds are deposited electronically on a recurring basis and which are identified as being funds that upon deposit are exempt from execution, levy or attachment under Pennsylvania or federal law? If so, please identify each account and state the reason for the exemption, the amount being withheld under each exemption, and the entity electronically depositing those funds on a recurring basis. ANSWER: Not applicable 5 9. If you are a bank or other financial institution, at the time you were served or at any subsequent time did Defendant have any funds on deposit in an account in which the funds on deposit, not including any otherwise exempt funds, did not exceed the amount of the general monetary exemption under 42 Pa.C.S. §8123? If so, please identify each account. ANSWER: Not applicable 10. To the extent not heretofore set forth, please describe any and all membership or other interests which Defendant has in you, including the value thereof. ANSWER: 1851 Restaurant Company LLC is a limited liability company in which Defendant has a 50% membership interest. 11. To the extent not heretofore set forth, please describe the dates and amounts of all contributions made by Defendant to you. ANSWER: None 6 12. To the extent not heretofore set forth, describe the dates and amounts of any distributions to Defendant which you have made or intend to make. ANSWER: D. Mark Thomas ("DMT") took over the management of 1851 Restaurant Company LLC ("1851") in August 2009. To DMT's knowledge, the restaurants operated by 1851, located at 955 Eisenhower Boulevard, Harrisburg, PA 17111, have never operated at a profit and to DMT's knowledge, no authorized distributions to Defendant have been made. Defendant is no longer a part of the business. 7 DATED: November 20, 2009 Of Counsel BECKLEY & MADDEN 212 North Third Street P. O. Box 11998 Harrisburg, PA 17108-1998 (717) 233-7691 Respectfully submitted, s 4GMil-akovic, Esquire :- fi. X Thomas S. Beckley, Esquire Attorneys for Plaintiff CERTIFICATE OF SERVICE It is hereby certified that a copy of the foregoing document was this day served upon the following persons in the manner below indicated. FIRST CLASS MAIL Mr. David J. Thomas 955 Eisenhower Boulevard Harrisburg, PA 17111 Defendant 1851 Restaurant Company, LLC 955 Eisenhower Boulevard Harrisburg, PA 17111 Garnishee Dated: l -/l ", 4Gi akov ic NOVINGER'S INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF V. DAVID J. THOMAS, DEFENDANT NO. 08-842 CIVIL ORDER OF COURT AND NOW, this 19th day of January, 2010, upon consideration of Plaintiff's Motion for Entry of a Charging Order upon Admission of Garnishee, IT IS HEREBY ORDERED AND DIRECTED that: 1. A Rule is issued upon the Defendant to show cause why the relief requested should not be granted; 2. The Defendant will file an answer on or before February 9, 2010; 3. If no answer to the Rule to Show cause is filed by the required date, the relief requested by Plaintiff shall be granted upon the Court's receipt of a Motion requesting Rule be made Absolute. If the Defendant files an answer to this Rule to Show Cause, the Court will determine if further Order or hearing is necessary. 4. The Prothonotary is directed to forward said Answer to this Court. By the Court, M. L. Ebert, Jr., John Milakovic, Esquire Elizabeth S. Beckley, Esquire /Attorneys for Plaintiff David J. Thomas, Defendant _,,-1'851 Restaurant Co., LLC 955 Eisenhower Blvd. Harrisburg, PA 17111 0O I ES ?Yl-.? L lcj- I J. b -- cz, CIO j f 7 P?o? 2010 MAR 9 AM 11: 40 cum wEhtPv'S?rLU'.?J4iNTY John G. Milakovic, Esquire Elizabeth S. Beckley, Esquire Beckley & Madden 212 North Third Street P.O. Box 11998 Harrisburg, PA 17108 (717) 233-7691 Attorneys for Plaintiff NOVINGER'S, INC., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION DAVID J. THOMAS, : NO. 08-842 Civil Term Defendant IN RE: 1851 RESTAURANT COMPANY, LLC, Garnishee PLAINTIFF'S MOTION TO MAKE RULE ABSOLUTE AND NOW comes Plaintiff, by and through its undersigned attorneys, and files this Motion To Make Rule Absolute, and in support thereof, avers as follows: 1. Plaintiff ("Novinger's") commenced this action by filing a Complaint for Confession of Judgment on February 5, 2008. At that same time, Novinger's filed a Confession of Judgment and, on that same day, judgment was entered in favor of Novinger's and against Defendant ("Thomas") in the amount of $179,754.83. By Order dated November 6, 2009, Judge Ebert entered a charging order against the economic interest of Thomas in the limited liability company known as 6108 Carlisle Pike Restaurant Company, LLC. 2. On or about November 10, 2009, Novinger's caused the issuance of a writ of execution, directing the Sheriff of Dauphin County to attach any interest of Thomas in the limited liability company known as 1851 Restaurant Company, LLC, garnishee. At that same time, Novinger's forwarded Interrogatories to Garnishee to be served upon the aforesaid garnishee ("1851") along with the writ. True and correct copies of the aforesaid writ of execution and garnishee interrogatories are hereto attached marked as Exhibit A. 3. The Sheriff served the writ and garnishee interrogatories upon 1851 on December 8, 2009. A true and correct copy of the Sheriff's Return of Service is hereto attached marked as Exhibit B. 4. The garnishee, 1851, served answers to the garnishee interrogatories on January 4, 2010. A true and correct copy of those answers are hereto attached marked as Exhibit C. 5. In response to Interrogatory Number 10, the garnishee, 1851, stated as follows: 1851 Restaurant Company LLC is a limited liability company in which Defendant has a 50% membership interest. 6. In Zokaites v. Pittsburgh Irish Pubs, LLC, 962 A.2d 1220 (Pa.Super. 2008), the Superior Court held that "a `charging order' ... is the remedy for a judgment creditor against a member's interest in a limited liability company." 962 A.2d at 1226. On or about January 13, 2010, based upon the foregoing facts and law, Novinger's filed a Motion for Entry of a Charging Order against Defendant's 50% interest in the garnishee, 1851. 7. On January 19, 2010, the Court issued an Order, in the form of a rule to show cause, requiring Defendant to file an answer to Novinger's Motion for Entry of a Charging Order, on or 2 before February 9, 2010. A true and correct copy of the aforesaid Order is hereto attached marked as Exhibit D. The Order states, in pertinent part, as follows: 3. If no answer to the Rule to Show cause is filed by the required date, the relief requested by Plaintiff shall be granted upon the Court's receipt of a Motion requesting Rule be made absolute... . (Order dated January 19, 2010, Exhibit D hereto, at ¶3.) 8. The Prothonotary served the aforesaid Order, containing the rule to show cause, upon Defendant by mail on January 20, 2010, according to the notation placed by the Prothonotary upon the lower left-hand corner of the Prothonotary's copy of the Order. A true and correct copy of the Prothonotary's copy of the Order, obtained from the "Searchable Civil Records" function of the Prothonotary's website, is hereto attached marked as Exhibit E. The Court is requested to take judicial notice of this particular record of the Prothonotary's in this case. 9. The required answer date has passed and Defendant has not filed an answer. WHEREFORE, Novinger's respectfully requests that the rule be made absolute and that the Court issue the charging order as requested. Dated: 3 A Ll/l D Of Counsel Beckley & Madden 212 North Third Street P.O. Box 11998 Harrisburg, PA 17108 (717) 233-7691 Respectfully submitted, Voh2nG.=Milakovic ? 4, ar 14 'P, &4 Elizabeth S. Beckley Attorneys for Plaintiff 3 .6-x4 ) b ? 4 `OT OF EXECUTION and/or ATTACHME COMMONWEALTH OF PENNSYLVANIA) NO 08-842 Civil COUNTY OF CUMBERLAND) CIVIL ACTION - LAW TO THE SHERIFF OF DAUPHIN COUNTY: To satisfy the debt, interest and costs due NOVINGER'S, INC., Plaintiff (s) From DAVID J. THOMAS, 1851 Arsonal Road, Harrisburg, PA 17103 (1) You are directed to levy upon the property of the defendant (s)and to sell (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of GARNISHEE(S) as follows: 1851 RESTAURANT COMPANY, LLC Any membership interest of Defendant in the limited liability company and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof; (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due $179,754.83 L.L. Interest Atty's Comm % Due Prothy $2.00 Atty Paid $76.50 Other Costs _ o)S Plaintiff Paid Date: 11/10/09 is R. Long, Pr of (Seal) By: Deputy REQUESTING PARTY: Name JOHN G. MILAKOVIC, ESQUIRE Address: BECKLEY & MADDEN PO BOX 11998 1"110091 *)P' " REWRL), HARRISBURG, PA 17108 lau ' { Im urm 89 ffq ha'd1 Attorney for: PLAINTIFF "of lw at CS&K a. Telephone: 717-233-7691 LWO Supreme Court ID No. 34843 NOVINGER'S, INC., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION dOOq CV 15COM 0 1 DAVID J. THOMAS, : NO. 08-842 Civil Term Defendant INTERROGATORIES TO GARNISHEE N 1851 RESTAURANT COMPANY, LLC J c? TO: 1851 Restaurant Company, LLC 1851 Arsenal Road Harrisburg, PA 17103 A. You are required to file answers to the following interrogatories within twenty (20) days after service upon you. Failure to do so may result in judgment being entered against you. B. The term "Defendant" means David J. Thomas ("Thomas"). C. "You" means 1851 Restaurant Company, LLC, including, without limitation, your agents, employees, officers, directors, successors and assigns. D. "Property" means any real or personal property of any kind or nature whatsoever, including, without limitation, any accounts of any kind, negotiable instruments, bonds, certificates of deposit, securities, money, certificates of ownership, ownership interests, membership interests, or membership certificates. E. By service of the Writ of Execution upon you, all property of the Defendant subject to attachment which was then in your possession, custody or control was attached, including all property of the Defendant which comes into your possession thereafter. fr • INTERROGATORIES IN ATTACHMENT 1. At the time you were served with these Interrogatories or at any subsequent time did you owe Defendant any money or were you liable to Defendant on any negotiable or other written instrument, or did Defendant claim that you owed Defendant any money or were liable to Defendant for any reason? If so, describe the nature of the debt or liability and the amount thereof, or the nature of the claimed debt or liability and the claimed amount thereof. ANSWER: 2. At the time you were served with these Interrogatories or at any subsequent time was there in your possession, custody or control, or in the joint possession, custody or control of yourself and one or more other persons, any "property" owned solely or in part by Defendant? If so, describe the property and the value thereof. ANSWER: 2 0 0 3. At the time you were served with these Interrogatories or at any subsequent time did you hold legal title to any property owned solely or in part by Defendant, or in which Defendant held or claimed any interest? If so, describe the property and the value thereof. ANSWER: 4. At the time you were served with these Interrogatories or at any subsequent time did you hold as fiduciary any property in which Defendant had an interest? If so, describe the property and the value thereof. ANSWER: 3 P 5. At the time you were served with these Interrogatories or at any subsequent time, did Defendant transfer or deliver any property to you or to any person or place pursuant to your direction or consent, and, if so, what was the property transferred or delivered; to whom was it transferred or delivered; when was it transferred or delivered; and what was the consideration therefor? ANSWER: 6. At any time after you were served with these Interrogatories, did you pay, transfer, or deliver any property to Defendant, or to any person or place pursuant to Defendant's direction, or otherwise discharge any claim of Defendant against you? If so, describe precisely what you did; the value of the property paid, transferred, or delivered; why the payment, transfer, or delivery was effected; and when it was made. ANSWER: 4 4) 7. At the time you were served with these Interrogatories or at any subsequent time did you have property of Defendant, or property in which it has any interest, on deposit or otherwise in your possession, custody or control other than the property identified in your answers to the previous Interrogatories? If so, describe what you have and the value thereof. ANSWER: 8. If you are a bank or other financial institution, at the time you were served or at any subsequent time did Defendant have funds on deposit in an account in which funds are deposited electronically on a recurring basis and which are identified as being funds that upon deposit are exempt from execution, levy or attachment under Pennsylvania or federal law? If so, please identify each account and state the reason for the exemption, the amount being withheld under each exemption, and the entity electronically depositing those funds on a recurring basis. ANSWER: 5 0 0 9. If you are a bank or other financial institution, at the time you were served or at any subsequent time did Defendant have any funds on deposit in an account in which the funds on deposit, not including any otherwise exempt funds, did not exceed the amount of the general monetary exemption under 42 Pa.C.S. §8123? If so, please identify each account. ANSWER: 10. To the extent not heretofore set forth, please describe any and all membership or other interests which Defendant has in you, including the value thereof. ANSWER: 11. To the extent not heretofore set forth, please describe the dates and amounts of all contributions made by Defendant to you. ANSWER: 6 0 0 12. To the extent not heretofore set forth, describe the dates and amounts of any distributions to Defendant which you have made or intend to make. ANSWER: 7 F "I, U"i DATED: November 20, 2009 Of Counsel BECKLEY & MADDEN 212 North Third Street P. O. Box 11998 Harrisburg, PA 17108-1998 (717) 233-7691 Respectfully submitted, G. Milakovic, Esquire Thomas S. Beckley, Esquire Attorneys for Plaintiff ?x??6 %f ? Mary Jane Snyder Real Estate Depu William T. Tully Solicitor 4 V-1 (Otfirlt of iffe,*herriff Charles E. Sheaffer Chief Deputy Michael W. Rinehart Assistant Chief Deputy Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 780-6590 Fax: (717)255-2889 Commonwealth of Pennsylvania County of Dauphin Jack Lotwick Sheriff NOVINGERS INC. VS DAVID J THOMAS Sheriff s Return No. 2009-CV-15682 And now: DECEMBER 8, 2009 at 2:25:00 PM served the within WRIT OF EXECUTION & INTERROGATORIES upon 1851 RESTAURANT COMPANY, LLC by personally handing to JENNARO FATTERUSSO; EMP. IN CHARGE true attested copies of the original WRIT OF EXECUTION & INTERROGATORIES and making known to him/her the contents thereof at 955 EISENHOWER BLVD HARRISBURG PA 17111 So Answers, ? lez?;7? Sheriff of Dauphin County, Pa. Deputy: S SCHAEFFER Plaintiff. NOVINGERS INC. Sheriffs Costs: $ PAID BY COUNTY 1851 Restaurant fornpany, LLC 955 Eisenhower Boulevard • Harrisburg • PA • 17111 January 4, 2010 John G. Milakovic, Esquire Beckley & Madden 212 North Third Street P.O. Box 11998 Harrisburg, PA 17108-1998 Re: Novinger's v. Thomas No. 08-842 Civil Term (Cumberland County) Dear Mr. Milakovic: Enclosed are our responses to the Interrogatories to Garnishee 1851 Restaurant Company, LLC, in the above-referenced matter. Very truly yours, D. Mark Thomas Enclosures 10O1U4.Mdakov,I WW E NOVINGER'S, INC., Plaintiff V. DAVID J. THOMAS, Defendant 0 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION e v/56g A ` ??- NO. 08-842 Civil Term N i INTERROGATORIES TO GARNISHEE 1851 RESTAURANT COMPANY, LLC TO: 1851 Restaurant Company, LLC 1851 Arsenal Road Harrisburg, PA 17103 A. You are required to file answers to the following interrogatories within twenty (20) days after service upon you. Failure to do so may result in judgment being entered against you. B. The term "Defendant" means David J. Thomas ("Thomas"). C. "You" means 1851 Restaurant Company, LLC, including, without limitation, your agents, employees, officers, directors, successors and assigns. D. "Property" means any real or personal property of any kind or nature whatsoever, including, without limitation, any accounts of any kind, negotiable instruments, bonds, certificates of deposit, securities, money, certificates of ownership, ownership interests, membership interests, or membership certificates. E. By service of the Writ of Execution upon you, all property of the Defendant subject to attachment which was then in your possession, custody or control was attached, including all property of the Defendant which comes into your possession thereafter. 0 • INTERROGATORIES IN ATTACHMENT 1. At the time you were served with these Interrogatories or at any subsequent time did you owe Defendant any money or were you liable to Defendant on any negotiable or other written instrument, or did Defendant claim that you owed Defendant any money or were liable to Defendant for any reason? If so, describe the nature of the debt or liability and the amount thereof, or the nature of the claimed debt or liability and the claimed amount thereof. ANSWER: No 2. At the time you were served with these Interrogatories or at any subsequent time was there in your possession, custody or control, or in the joint possession, custody or control of yourself and one or more other persons, any "property" owned solely or in part by Defendant? If so, describe the property and the value thereof. ANSWER: No 2 C: n 3. At the time you were served with these Interrogatories or at any subsequent time did you hold legal title to any property owned solely or in part by Defendant, or in which Defendant held or claimed any interest? If so, describe the property and the value thereof. ANSWER: No 4. At the time you were served with these Interrogatories or at any subsequent time did you hold as fiduciary any property in which Defendant had an interest? If so, describe the property and the value thereof. ANSWER: No 3 0 0 5. At the time you were served with these Interrogatories or at any subsequent time, did Defendant transfer or deliver any property to you or to any person or place pursuant to your direction or consent, and, if so, what was the property transferred or delivered; to whom was it transferred or delivered; when was it transferred or delivered; and what was the consideration therefor? ANSWER: No 6. At any time after you were served with these Interrogatories, did you pay, transfer, or deliver any property to Defendant, or to any person or place pursuant to Defendant's direction, or otherwise discharge any claim of Defendant against you? If so, describe precisely what you did; the value of the property paid, transferred, or delivered; why the payment, transfer, or delivery was effected; and when it was made. ANSWER: No 4 0 0 7. At the time you were served with these Interrogatories or at any subsequent time did you have property of Defendant, or property in which it has any interest, on deposit or otherwise in your possession, custody or control other than the property identified in your answers to the previous Interrogatories? If so, describe what you have and the value thereof. ANSWER: No 8. If you are a bank or other financial institution, at the time you were served or at any subsequent time did Defendant have funds on deposit in an account in which funds are deposited electronically on a recurring basis and which are identified as being funds that upon deposit are exempt from execution, levy or attachment under Pennsylvania or federal law? If so, please identify each account and state the reason for the exemption, the amount being withheld under each exemption, and the entity electronically depositing those funds on a recurring basis. ANSWER: Not applicable 5 9. If you are a bank or other financial institution, at the time you were served or at any subsequent time did Defendant have any funds on deposit in an account in which the funds on deposit, not including any otherwise exempt funds, did not exceed the amount of the general monetary exemption under 42 Pa.C.S. §8123? If so, please identify each account. ANSWER: Not applicable 10. To the extent not heretofore set forth, please describe any and all membership or other interests which Defendant has in you, including the value thereof. ANSWER: 1851 Restaurant Company LLC is a limited liability company in which Defendant has a 50% membership interest. 11. To the extent not heretofore set forth, please describe the dates and amounts of all contributions made by Defendant to you. ANSWER: None 6 0 0 12. To the extent not heretofore set forth, describe the dates and amounts of any distributions to Defendant which you have made or intend to make. ANSWER: D. Mark Thomas ("DMT") took over the management of 1851 Restaurant Company LLC ("1851") in August 2009. To DMT's knowledge, the restaurants operated by 1851, located at 955 Eisenhower Boulevard, Harrisburg, PA 17111, have never operated at a profit and to DMT's knowledge, no authorized distributions to Defendant have been made. Defendant is no longer a part of the business. 7 C7 DATED: November 20, 2009 Of Counsel BECKLEY & MADDEN 212 North Third Street P. O. Box 11998 Harrisburg, PA 17108-1998 (717) 233-7691 LI Respectfully submitted, i G. Milakovic, Esquire Thomas S. Beckley, Esquire Attorneys for Plaintiff 8 " ? J1 C? ?v b' NOVINGER'S INC., IN THE COURT OF COMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF V. DAVID J. THOMAS, DEFENDANT NO. 08-842 CIVIL ORDER OF COURT AND NOW, this 19th day of January, 2010, upon consideration of Plaintiff's Motion for Entry of a Charging Order upon Admission of Garnishee, IT IS HEREBY ORDERED AND DIRECTED that: 'o''?t 1. A Rule is issued upon the Defendant to show cause why the relief requested should not be granted; 2. The Defendant will file an answer on or before February 9, 2010; 3. If no answer to the Rule to Show cause is filed by the required date, the relief requested by Plaintiff shall be granted upon the Court's receipt of a Motion requesting Rule be made Absolute. If the Defendant files an answer to this Rule to Show Cause, the Court will determine if further Order or hearing is necessary. 4. The Prothonotary is directed to forward said Answer to this Court. By the Court, M. L. Ebert, Jr., J. John Milakovic, Esquire Elizabeth S. Beckley, Esquire Attorneys for Plaintiff David J. Thomas, Defendant 1851 Restaurant Co., LLC 955 Eisenhower Blvd. Harrisburg, PA 17111 NOVINGER'S INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF V. DAVID J. THOMAS, DEFENDANT NO. 08-842 CIVIL ORDER OF COURT AND NOW, this 19th day of January, 2010, upon consideration of Plaintiffs Motion for Entry of a Charging Order upon Admission of Garnishee, IT IS HEREBY ORDERED AND DIRECTED that: 1. A Rule is issued upon the Defendant to show cause why the relief requested should not be granted; 2. The Defendant will file an answer on or before February 9, 2010; 3. If no answer to the Rule to Show cause is filed by the required date, the relief requested by Plaintiff shall be granted upon the Court's receipt of a Motion requesting Rule be made Absolute. If the Defendant files an answer to this Rule to Show Cause, the Court will determine if further Order or hearing is necessary. 4. The Prothonotary is directed to forward said Answer to this Court. By the Court, M. L. Ebert, Jr., J. John Milakovic, Esquire 4 Elizabeth S. Beckley, Esquire ?. Attorneys for Plaintiff ., David J. Thomas, Defendant r-ii t° ? _,,-1'851 Restaurant Co., LLC w D r ' 955 Eisenhower Blvd. Harrisburg, PA 17111 (20 e-j t6L 1 CERTIFICATE OF SERVICE It is hereby certified that a copy of the foregoing document was this day served upon the following persons in the manner below indicated. FIRST CLASS MAIL Mr. David J. Thomas 100 Walnut Street Lemoyne, PA 17043 Defendant 1851 Restaurant Company, LLC 955 Eisenhower Boulevard Harrisburg, PA 17111 Garnishee Dated: 3/ Lgll a G. Milakovic R i MAR 2 6 2010 NOVINGER'S, INC., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION n 7) DAVID J. THOMAS, : NO. 08-842 Civil Term r Defendant •...J ................................. .................................................................... `._.. .. .. ?. -77 IN RE: 1851 RESTAURANT COMPANY, LLC, - r•: .a ` Garnishee ................................. .................................................................... ...... ORDER t? AND NOW, this day of Mar C N , 1.610 , upon consideration of Plaintiffs Motion for Entry of a Charging Order upon Admission of Garnishee, the Court having issued an Order dated January 19, 2010, containing a rule requiring Defendant to file an answer to the aforesaid Motion on or before February 9, 2010; and the Order having been served upon Defendant; and no answer having been filed; and Plaintiff having filed a Motion To Make the Rule Absolute, it is hereby ordered that the rule is made absolute and said Motion is GRANTED. The judgment of the Plaintiff, Novinger's, Inc., in the sum of $179,754.83, with interest from February 5, 2008, plus costs, be and hereby is charged against the economic interest of the Defendant, David J. Thomas, in the limited liability company known as 1851 Restaurant Company, LLC. BY THE COURT: C-10P1*E9 mat LL A44,j J . /Mi •L-a k o, c- r g s t 3/3011b --rYA 1 f I Distribution List: John G. Milakovic Elizabeth S. Beckley Beckley & Madden 212 North Third Street P.O. Box 11998 Harrisburg, PA 17108 Attorneys for Plaintiff David J. Thomas 100 Walnut Street Lemoyne, PA 17043 Defendant 1851 Restaurant Company, LLC 955 Eisenhower Boulevard Harrisburg, PA 17111 Garnishee 2 Ronny R Anderson Sheriff Jody S Smith Chief Deputy Edward L Schorpp Solicitor Novinger's Inc vs. David J Thomas r, 1 iR i _ r 1y Case Number 2008-842 SHERIFF'S RETURN OF SERVICE 09/29/2009 03:51 PM - Timothy R. Black, Deputy Sheriff, who being duly sworn according to law, states that on September 29, 2009 at 1540 hours, attached as herein commanded all goods, chattels, rights, debts, credits, and monies of the within named defendant, to wit: David J. Thomas, in the hands, possession, or control of the within named garnishee, 6108 Carlisle Pike Restaurant Company, LLC, 6108 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania 17050, by handing to Ben Salerno, General Manager, personally three copies of interrogatories together with three true and attested copies of the writ of execution and made the contents there of known to him. The writ of execution and notice to defendant was mailed on 10-02-09 to David J. Thomas, 6108 Carlisle Pike Restaurant Company, LLC, 6108 Carlisle Pike, Mechanicsburg, PA 17050. 04/08/2010 Ronny R. Anderson, Sheriff, who being duly sworn according to law, states this writ of execution is returned as ABANDONED. No action on writ in over 6 months. SHERIFF COST: $92.07 April 08, 2010 SO ANSWERS, RON R ANDERSON, SHERIFF B Karon R. Lantz t s' c) SHERIFF'S OFFICE OF CUMBERLAND COUNTY WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) N008-842 Civil CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due NOVINGER'S, INC. Plaintiff (s) From DAVID J. THOMAS (1) You are directed to levy upon the property of the defendant (s)and to sell ANY MEMBERSHIP INTEREST OF DAVID J. THOMAS IN THE LIMITED LIABILITY COMPANY KNOWN AS "6108 CARLISLEPIKE RESTAURANT COMPANY, LLC" , GARNISHEE, 6108 CARLISLE PIKE, MECHAINCSBURG, PA 17050. (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of GARNISHEE(S) as follows: ANY MEMBERSHIP INTEREST AS ABOVE-DESCRIBED WHICH THE GARNISHEE ADMITS IN RESPONSE TO THE INTERROGATORIES OR WHICH IS OTHERWISE FOUND TO EXIST. and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof; (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due$179,754.83 Interest Atty's Comm % Atty Paid $54.50 Plaintiff Paid Date: September 22, 2009 (Seal) L.L.$.50 LL Due Prothy $2.00 Other Costs 2 urtis R. Lon o By: REQUESTING PARTY: Deputy Name John G. Milakovic, Esquire Address: Beckley & Madden, 212 N. Third Street, P.O. Box 11998, Harrisburg, PA 17108-1998 Attorney for: Plaintiff Telephone: (717) 233-7691 Supreme Court ID No. 34843