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HomeMy WebLinkAbout03-6555MANUFACTURES AND TRADERS : 1N THE COURT OF COMMON PLEAS TRUST COMPANY, Successor by Merger : CUMBERLAND COUNTY, PENNSYLVANIA to PENNSYLVANIA NATIONAL BANK & TRUST COMPANY, Plaintiff VS. CELTIC MOON PUBLISHING, INC., Defendant : CIVIL ACTION - LAW : No. CONFESSION OF JUDGMENT Pursuant to the authority contained in the Warrant of Attorney, 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 Defendant as follows: Principal Sum Due - Interest to 12/19/03 - Attorney's Commission (10% of unpaid principal and interest) - Total - $ 23,852.24 977.31 2,482.96 $ 27,312.51 Plus all future accruing interest at the contract rate after December 19, 2003, ($3.644 per diem), late charges, costs of suit and reasonable attorney's fees. Prothonotary I.D. #55774 937 Willow Street P.O. Box 1140 Lebanon, PA 17042-1140 (717) 274-3644 Attorney for Defendant MANUFACTURES AND TRADERS TRUST COMPANY, Successor by Merger to PENNSYLVANIA NATIONAL BANK & TRUST COMPANY, Plaintiff VS. CELTIC MOON PUBLISHING, INC., Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. ~ 6.5' q5' COMPLAINT CONFESSION OF JUDGMENT Plaintiff files this Complaint pursuant to Pa. R.C.P. No. 2951 (b) for judgment by confession and avers the following: 1. The Plaintiff is Manufactures and Traders Trust Company ("M&T Bank") a New York banking corporation, successor by merger to Pennsylvania National Bank and Trust Company, with an office located at 213 Market Street, Harrisburg, Pennsylvania 17101. 2. The Defendant is Celtic Moon Publishing, Inc., with a last known office address of 207 House Avenue, Suite 103, Camp Hill, Pennsylvania 17011. 3. Attached hereto as Exhibit "A" is a true and correct copy of the Promissory Note (the "Note") duly executed by Defendant on April 23, 1998. 4. The Note has not been assigned. 5. Judgment has not been entered on the Note in any jurisdiction. 6. Default was made by the Defendant in its failure to meet demand for payment in full of the Note and further, in failure to make installments of interest due for the months of April, May, June, July, August, September, October and November 2003, whereby the entire sum is in default and immediately due and payable. 7. As a consequence of the foregoing and pursuant to the Warrant of Attorney in the Note, Defendant is liable to Plaintiff as follows: Principal Sum Due - $ 23,852.24 Interest to 12/19/03 - 977.31 Attorney's Commission (10% of unpaid principal and interest) - 2,482.96 Total - $ 27,312.51 Plus all future accruing interest at the contract rate after December 19, 2003, ($3.644 per diem), late charges, costs of suit and reasonable attorney's fees. 8. Judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. 9. Attached hereto and incorporated herein as Exhibit "B" is the Notice to Defendant required by 42 Pa.C.S.A. {}2737.1. WHEREFORE, Plaintiff demands judgment in the sum of: Principal Sum Due - $ 23,852.24 Interest to 12/19/03 - 977.31 Attorney's Commission (10% of unpaid principal and interest) - 2,482.96 Total - $ 27,312.51 Plus all future accruing interest at the contract rate after December 19, 2003, ($3.644 per diem), - 2 late charges, costs of suit and reasonable attorney's fees, as authorized by the Warrant of Attorney appearing in the Promissory Note. I.D. #55774 937 Willow Street P.O. Box 1140 Lebanon, PA 17042-1140 (717) 274-3644 Attorney for Plaintiff - 3 - ~ I~1~'1 liA¥ IT COIVflMO~,~LT~ OF ~EI~',~$~LV~Ni~: OF"-"~ ta.~-~(._~ k.~ : ss. COUNTY Jeffrey S. Linden, Assistant Vice President, of Manufactures and Traders Trust Company, being duly sworn according to law, deposes and says that he has authority to sign this Affidavit on behalf of Manufactures and Traders Trust Company and that the facts set forth in the foregoing Complaint are true and correct to the best of his knowledge, information and belief; and that the copy of the Promissory Note, Exhibit "A" attached to the Complaint, is a true and correct copy of the original which is held in the files of the Plaintiff and which was executed and delivered by the Defendant to Plaintiff. Not~ria$ Seal Edie I. Lingle, Notary Public Lebanon, Lebanon County My Commission Expires Oct. 11, 2004 Member, Pennsy~va~a Association el Notaries Sworn and subscribed to before me this : Notary Public~ MANIJFACTURES AND TRADERS TRUST COMPANY J6'ffrey S. Linden Assistant Vice President NOTICE TO THE DEBTOR/DEFENDANT AS REQUIRED BY 42 Pa.C.S.A. ~2756 To; Celtic Moon Publishing, Inc. 207 House Avenue, Suite 103 Camp Hill, PA 17011 Attached hereto you will find a copy of Pennsylvania Rule of Civil Procedure 2959 which provides instructions regarding the procedure to follow to strike a confessed judgment. You should be further advised that any party to a confessed judgment which has been incorrectly identified is entitled to costs and reasonable attorney's fees as determined by the Court. Manufactures and Traders Trust Company PROMISSORY NOTE Principal i Loan Date Maturity i Loan No ! .CarliCollateral ! Account i Officer I Initials $25,000,00 ' ! 04-23-1998 ! , ._L~0._1~1__(~ [ .B_B_ [_ UNS~E.C_ ,'- 275501 ~ MW24 ! References in t~'~-~'e~eras~ar~ for ~'e~der's ese only and do not limit the epl~tsadtitiY et this document to any pa~t~c'ct~tar I~a-'~ or item. Borrower: Celtic Moon Publishing, in(~. Lender: PENNSYLVANIA NATIONAL BANK AND TRUST COMPANY 4707 Ctaervfaw Drive CAMP HILL COMMUNITY OFFICE Camp H]II, PA 17011 4231 TRINDLE ROAD CAMP HILL, PA 17011 Principal Amount: $25,000.00 Initial Rate: 10.000% Date of Note: April 23, 1998 PROMISE TO PAY. Calitc Moon Pubfishthg, InC. ("Borrower") promises to pay to PENNSYLVANIA NATIONAL BANK AND TRUST COMPANY ('1.ender"), or order, in lawful money of the Untied Slates of America, on Contend, ~e principal amount of Twenty Five Thousend& 001100 Dollars ($2fi,0o0.o0) or so much as may be outstanding, thgether with Interest on the unpaid outsinnding principal balance of each advance. Interest shall be calculated from the date of each advance until repayment of each advance. PAYMENT. Borrower will pay this loan imrsedfathty upon Lender's demand. In addition, Borrower will pay regular monthly payments of all accrued unpaid Interest due es of each payment date, beginning May 30, 1998, with all subsequent Interest payments to be due on the same day of each month after that, The annual interest nde f~ this Note ~s computed on a 365/360 basis; that is, by applying the retie of the annual interest rata over a ~ar of 360 days, multiplied by the outstanding principal balance, multiplied by the actual number of days the principal balance is outstanding. Borrower will pay Lender at Lender's address shown above or at such other place es Lender may designate in writing. Unless otherwise agreed or required by shplluable law, bayments witi bo applied first to accroed unpaid interest, then In principal, and any remaining amount to any unpaid collection costs end fate charges. VARIABLE INTEREST RATE. The interest rate on this Nots is subjecl to change trom time In time based on changes in an index which is Lender's Prime Rein (the "Index"). T'nis is the rate Lender charges, or would charge, on 90-dey unsecured loans to the most credilworthy corporate customers. This rate may or may col be the lowest rate aveiisbte trom Lender st any given time. Lender will teti Borrower the current index rate upon Borrower's request, scrrower understands that Lender rosy make loans based on other rotes as welt, The interest rate change will not oCcur more often than each [:)AY. The Index currently Is 0,600% per annum. The_interest rate to Jbe applied to the unpaid principal balance of this Note will be at a rate of 1.500 peroentagep~utts over the-Index, renuiting In an Iniutd rote of 10.o00% per annum. NOTICE: Under no circumstances will the interest rate on this Note be more than the maximum rate allowed by applicable Aw. PREPAYMENT° Borrower may pay without peneity all or a portion of the amount owed asdier than it is due. Early payments wtil not, unless agreed to by Lender in writing, relieve Borrower of Borrower's obligation In continue to make payments of accrued unpaid interest. Rather, they will reduce the :prindpal balance due. LATE CHARGE. I1 a regularly scheduted interest payment is 1fi days or more late, Borrower will be charged 5.000% of the regtitariy scheduled payment. If Lender dersends payment of this loan. and Borrower does not pay fha lean within 16 days stter Lender's demand, Borrower alnc will he charged 6,000% of the sum of the unpaid principal plus accrued unpaid Interent. DEFAULT. Borrower will be in default it any o1 the following happens: (a) Bmrower tails 1o make any payment when due. (b) Borrowes breaks any promise Borrower has mede to Lender, or Borrower fails In comply with or to pe~0rm when due any other term, obllgaUon, covenant, or condition contained in lhle Note or any agreement related la this Note, or in any other agreement or loan Borrower has with Lender. (c) Borrower defaults under any loan, e~dension of credit, sesudly agreement, ptnchese or sales agreement, or uny other agreement, In favor of any other creditor or person thai may mater;ally affect any of Borrower's property or Borrowers abtiJly fo repay this Note or i~erform Sorrowers obligations under this Note or any of the Related Documents. (d) Any representation or sintamenl made or furnished to Lender by Borrower or on Borrower's behalf is false or misleading In any matadal respect.either now or at the time made or furnished. (e) Borrower becomes [nsciveot, a receiver is appointed for any part of Borrower's property, Borrower makes an assignment for the benefit of creditors, or any proceeding is commenced either by Borrower or against Borrower under any bankruptcy or insolvency laws. (0 Any creditor tr~s fu take a. ny of Sen'ewers properly on or in which Lender has a lien or security interest. This Includas.a gerrdshrt[ent of any of Borrower's accounts with Lender. (g) Any guarantor dies or any of the other events described in this default section occurs~th respect ta any guarantor of this Note. '~h} A mata~dal achra~se change occurs in Borrowers financial condition, or Lender believes the prospect of payment or per~srmcnce of the fndebtadnese is impaired. (t) Lender in good faith deems itself insecure. ' If any default, other than a default in payment, is curable and if Borrower has not been given a notice of a breach of the same provision of this Note within the preceding hvelva (12) months, it may be cured (and no eveot of default will have occurred) if Sorrower, after receiving written notice from Lender demanding cure of such default: (e) cures the default within fifteen (15) d~ys; or (b) if the cure requires more than tifiean (15) days, immediately inihatas steps which Lender deems in Lenders sole discre§on 1o be sufficient to cure the default and thereafter continues and completes all reasuneble and nesess~7 steps sufficient fu produce compliance es soon as reasonably practical. LENDER'S RIGHTS. Upon defaufi, Lender may, after giving such notices es resluirad by applicable law, dealers the entire unpaid principal balance on thle Note and'all accrued unpaid interest immedistely due, snd then Borrower will pay that amount. Lender may hire or pay someone else to help coffaot this Note if Borrower does not pay. Sorrower also will pay Lende~ that amount. This includes, subject to any limits under applicable isw, Lender's aflomeys' fees and Lender's legal expenses whether or not there is a iswsufi, including shnmeys' fees and legal expenses fu~ hankruptcy prccsedlngs (including sffods to modily or vacate any automath: stay or injunction), appeals, and any snflcipatad post-judgment collection services, If- not prohibited by applicable raw, Borrower also will pay any court costs, in addition to ell other sums provided by law. If judgment ts ants-ed in uonnestien with this Note, interest will continue to accrue on this Note after Judgment at the interas[ rate appticeble to this Note at the time judgment is entered. This Note has bean defivered to Lender end accepted by Lender In Ute Commonwealth of Penneylventa~ If there Is a laWsuit, Borrower agronc upon Lender's request fo submit to the Jurl~futinc of Ute scuds of CUMBERLAND County, the Commonwestth of Penneyfventa. This Note shall be governed by and nCnctrund In socordense with Ute laWs of the Contradnwealth of Pennsylvania. RIGHT OF SE-TOFF, Borrower grants to Lender a contractual possessor'/sncufily interest in, and h~reby assigns, conveys, Calkers, pledges, and transfers to Lender all Borrower's right, title and interest in and to. Bcrrower's accounts with Lender (whether checking, savings, or some other account), including without limitation all accounts held jointly wiut someone also and NI accounts Borrower may open in the future, exeluding however ell IRA and Keogh accounts, and att trust accounts for which the grant of s security infaresl would be prohibited by isw. Borrower authorizes Lender, fo the extent permitted by applicable law, to charge or seloft all sums owing on this Note against any and all such accounts. LINE OF CREDIT. This Note ev;dencas a revoMng line of credit. Advances under this Note may be requested either orally or in wdlfog by acrrower or by an authorized person. Lender may, but need not, require that all oral requests be confirmed in writing. All communications, instructions, or directions by telephone or otherWise fo Lender are to be directed fu Lender's office shown above. The following party or perties are authorized to request advances under the lice of credit unfit Lender resolves from Sen'ewer at Lender's address shown above written notice of revocation of their authority: Sherry Y. Ritchey, Prealdent/Secrsla~7; end Dennis R. Ritchey, Treasurer. Borrower agrees to be liable for ali sums either: (a) sdvenuad in accordance with the instructions ot sn authorized person or (b) credited to any of Borrower's accounts with Lender. The unpaid principal balance 04-23-1998 ~" PROMISSORY NOTE Loan No 501-30010 .~ (Continued) Page 2 owing on this Note at any time may be evidenced by endorsements on this Note or by Lenders internal records, including daily computer print-outs. Lender will have no obligation to advance funds under this Note if: (a) Borrower or any guarantor is in default under the terms of this Note or any agreement that Borrower or any guarantor has with Lender, tecluding any agreement rnsde in connection with the signing of this Note; (b) Sorrower or any guarantor ceases doing b~in~s or is inso{vent; (c) any guarantor seeks, c~ms or Othenviss attempts to limit, modify or revoke such guamnter's guarantee of this Note or any Other Icon with Lender, (d) Borrower has applied funds provided pursuant to this Note for purposes other than those authortzed by Lender; or (e) Lender in good faith deems itsell insecure under this Note o~ any other agreement between Lender and Borrower. LINE OF CREDIT FEE, An annual processing fee of $200.00 will be automalically billed to you duitng the month Ioltewing the approval of the line of credit and continuing at ~he beginning of each calendar year lhereaffer. GENERAL PROVISIONS. This Note is payable on demand. The inclusion of specific default provisions or rights of Lender shell not preclude Lender's dght to declare payment of this Note on its demand. Lender may delay or Iorgo enfoming any of its rights or remedies under this Note without losing them. Borrower and any other person who signs, guarantees or endorses this Note, fu the extenl allowed by raw, waive presentment, demand for payment, pretest and notice of dishonor. Upon any change in the terms of this Note, and unless othe~vice expressly stated in writing, no party who signs this Note, whether as maker, guar~ofer, accommodation maker or endorser, shati be released from liedilify. All such padias agree that Lender may renew or extend (repeatedly and for any length of time) this loan, or release any pady or guarantor or cotiafar~; er impair, fail to realize upon or pertect Lender's security interest in the coilefaral; and take any other action<teemed necess~,7 by Lender without the consent of or notice to anyone. Ail such parties ~]so agree that Lender may modify this loan without the consent of or notice to anyone other than the party with whom the modification is made. If any portion of this Nota is for any reason determined to be unenforceable, it w~i not affect the eofomeabitity of any other provtslons of this Note. CONFESSION OF JUDGMENT. BORROWER HEREBY IRREVOCABLY AUTHORI2ES AND EMPOWERS ANY A'CfORNEY OR THE PROTHONOTARY oR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TiME FOR BORROWER AFTER A DEFAULT UNDER THIS NOTE, AND WITH OR WITHOUT COMPLAINT FILED, AS OF ANY TERM, CONFESS OR ENI~R JUDGMENT AGAINST BORROWER FOR THE ENTIRE PRINCrPAL BALANCE OF THiS NOTE, ALL ACCRUED INTEREST, LATE CHAP, GES, AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO ANY COLLATERAL SECURING THiS NOTE TOGETHER WITH INTEREST ON SUCH AMOUhTS, TOGETHER WiTH COSTS OF SUIT, AND AN A'J'TORNEY'S COMMISSION OF TEN PERCENT (10%) OF THE UNPAID PRINCIPAL BALANCE AND ACCRUED iNTEREST FOR COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS ($500) ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY iSSUE IMMEDIATELY; AND FOR SO DOING, THIS NOTE OR A COPY OF THIS NOTE VERIFIED BY AFFIDAVIT SHA.L~ BE SUFFICIENT WARRANT. THE ALITHORtTY GRANTED IN THIS NOTE TO CONFESS JUDGMENT AGAINST BORROWER SHALL NOT BE EXHAUSTED BY ANY EXERCISE OF THAT AUTHORITY, BUT SHALL CONTINUE FROM TiME TO TiME AND AT ALL TIMES UNTIL PAYMENT IN FULL OF ALL AMOUNTS DUE UNDER THIS NOI'~. BORROWER HEREBY WAIVES ANY RIGHT BORROWER MAY HAVE TO NOTiCE OR TO A HEARING IN CONNECTION WITH ANY SUCH CONFESSION OF JUDGMENT, EXCEPT ANY NOTICE AND/OR HEARING REQUIRED UNDER APPLICABLE LAW WITH RESPECT TO EXECLmON OF THE JUDGMENT, AND STATES THAT EITHER A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THIS CONFESSrON OF JUDGMENT PROVISION TO BORROWER'S ATTENTION OR BORROWER HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL. THE LIEN ARISING FROM ANY JUDGMENT CONFESSED OR ENTERED PURSUANT TO THE FOREGOING AUTHORI'C~ SHALL NOT EXTEND TO ANY OF BORROWER'S RESIDENTIAL REAL PROPER'P( AS THAT TERM IS DEFINED IN THE PENNSYLVANIA ACT OF JANUARy 30, 1974 (PA. LAWS 13, NO. 6), REFERRED TO AS THE LOAN INTEREST AND PROTECTION LAW, AS AMENDED, AND THE HOLDER OF ANY JUDGMENT CONFESSED OR ENTERED PURSUANT TO THE FORGOING AUTHORITY SHALL NOT, IN ENFORCEMENT OF ANY SUCH JUDGMENT, EXECUTE, LEVY OR OTHERWISE PROCEED AGAINST ANY SUCH RESIDENTIAL REAL PROPERTY; PROVIDED, HOWEVER, THAT THE LIEN OF SUCH JUDGMENT SHALL EXIEND TO SUCH RESIDENTIAL REAL PROPERTY AND THAT THE HOLDER THEREOF SHALL SE PERMITTED TO EXECUTE, LEVY OR PROCEED AGAINST SUCH RESIDENTIAL REAL PROPERTY FROM AND AFTER THE EN'i~y OF A JUDGMENT AS CONTEMPLATED BY SECTION 407 OF SUCH LOAN INTEREST AND PROTECTION LAW AND RULES 2981 TO 2986 OF THE PENNSYLVANIA RULES OF CIVIL PROCEDURE, OR SUCCESSOR OR SIMILAR STATUTES AND RULES. NO LIMITATiON OF LIEN OR ANY ED(ECUTION, LEVY OR OTHER ENFORCEMENT CONTAINED IN THE IMMEDIATELY PRECEDING SENTENCE SHALL APPLY WITH RESPECT TO ANY JUDGMENT OBTAINED OTHER THAN BY THE FOREGOING AUTHORFi'Y TO CONFESS OR ENTER JUDGMENT. PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE, INCt. UDING THE VARIABLE INTEREST RATE PROVISIONS. BORROWER AGREES TO THE TERMS OF THE NOTE AND ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THE NOTE. THIS NOTE HAS BEEN SIGNED AND SEALED BY THE UNDERSIGNED. BORROWER: Celtic Moon Puhllshlng,'lnc.~) ay: ~/"~-~/-<,/_//,~ Cc ? (SEAL, Sherry Y. ~,}tCI~/, Pms~dent/Secr~'y V~i&ble Rate. Line of Credit. 'Dennis R. Rltchey, Treasurer ~ LASER PRO. Reg. U.S. Pat* & %M. Oil., Var. 3.24 (¢)1998 CFI ProService s, I;lC. All rights rese~ve{~. [PA-D20 CELL N C22.OVLI RULES OF CIVIL PROCEDURE - CONFESSION OF JUDGMENT Rule 2959. Striking Off or Opening Judgment; Pleadings; Procedure (a)(1) Relief from a judgment by confession shall be sought bypetition. Except as provided in subparagraph (2), all grounds for relief whether to strike offthe judgment or to open it must be asserted in a single petition, The petition may be filed in the county in which the judgment was originally entered, in any county to which the judgment has been transferred or in any other county in which the sheriffhas received a writ of execution directed to the sheriffto enforce the judgment. (2) The ground that the waiver of the due process rights of notice and hearingwas not voluntary, intelligent and knowing shall be raised only (i) in support ora further request for a stay of execution where the court has not stayed execution despite the timely filing of a petition for relief from the judgment and the presentation of prima facie evidence of a defense; and (ii) as provided by Rule 2958.3 or Rule 2973.3, (3) If written notice is served upon the petitioner pursuant to Rule 2956.1(c)(2) or Rule 2973.1 (c), the petition shall be filed within thirty days after such service. Unless the defendant can demonstrate that there were compelling reasons for the delay, a petition not timely filed shall be denied. (b) If the Petition states prima facie grounds for relief and the court shall issue a role to show cause and may grant a stay of proceedings, After being served with a copy of the petition the plaintiffshall file an answer on or before the return day of the role. The return day of the rule shall be fixed by the court by local rule or special order. (c) A party waives all defenses and objections which are not included in the petition or answer. (d) The petition and the rule to sow cause and the answer shall be served as provided in Rule 440. (e) The court shall dispose of the rule on petition and answer, andon any testimony, depositions, admissions and other evidence. The court for cause shown may stay proceedings on the petition insofar as it seeks to open the judgment pending disposition of the application to strike off the judgment. If evidence is produced which in a jury trial would require the issues to be submitted to the jury the court shall open the judgment. (f) The lien of the judgment or of any levy or attachment shall be preserved while the proceedings to strike off or open the judgment are pending. Adopted June 27, 1969, effective Jan, 1, 1970. Amended Oct. 4, 1973, effective Dec. 1, 1973; Nov. 14, 1978, effective Dec. 2, 1978; Dec. 14, 1979, effective Feb. 1, 1980; June 20, 1985, effective Jan. I, 1986; April 1, 1996, effective July 1, 1996. Explanatory Comment - 1979 Amendment to Rule 2959(a). The Act of March 27, 1945, P.L. 83, as amended, 12 P.S. §§913, 914 provided that if a confessed judgment is transferred to another county or if a writ of execution upon it is direct4ed to another county, the defendant has the option to petition to open either in the county where the judgment was originally entered or in the county to which it was transferred or to which the execution was directed. This Act is repealed by JARA. Subdivision (a) of Rule 2950 has been amended to continue the procedure. The scope of the repealed Act is enlarged by granting optional venue in the case of a petition to strike the judgment as well as petitions to open. This consisted with subdivision (a) of Rule 2959 whichrequires all grounds for relief, whether to open or to strike, to be raised at one time. To prevent bifurcation of the proceedings, the optional venue must be extended to both forms of relief EXHIBIT "B" A petition to strike must assert defects appearing on the record. If the judgment debtor should seek to strike the judgment in an outside county, examination of the record of the original confession may be essential. For this purpose, the judgment debtor can, under the authority of Rule 3002(c), file in the outside county a certified copy of all or any part of the record, testimony or exhibits in the original action. New Rule 2959(/). An order of court opening a judgment does not impair the lien of the judgment or of any execution issued on it, although the court may stay the execution pending final disposition of the proceeding. 7 Stand. Pa. Prac. 172, 174 §2 138, 142. To the contrary an order of court striking a judgment annuls the lien of the judgment or of any execution issued on it. 7 Stand. Pa. Prac. 244 22 223, 224. However, the mere filing of a petition to open or strike a judgment does not affect the lien of the judgment or of any execution, subject, of course, to the power of the court to stay execution pending decision on the petition. Subdivision (O has been added to Rule 2959 to restate this principal. Section 1722(b) of the Judicial Code authorizes the Supreme Court to promulgate general rules on the subject of liens and their extent where not already governed by Act of Assembly. In the absence of such general roles, present practice shall continue. The rarely used Act of July 9, 1897, P.L. 237, 12 P.S. 2 911, created a special remedy under which a creditor of a judgment debtor might attack a judgment confessed by that debtor in favor of another creditor on a sowing of invalidity or fraud, and the filing of a bond to protect the judgment plaintiff. The Act preserved the lien of any Ievy which had been made pending termination of the proceedings. The Act was suspended in 1969 by Rule 2975(3) [rescinded] with respect to confessed judgments, except insofar as it preserved the lien, and it has been repealed by JARA. Explanatory Comment - 1996 The rules of civil procedure governing confession of judgment for money have been revised intwo major respects: the abolition of confession ofjudgment in a consumer credit transaction and the imposition ora requirement of notice prior to or with execution upon a confessed judgment. I1. Notice The provisions for notice are intended to aid the bench and bar in complying with Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250 (C.A.3 1994). The significance of the opinion was stated by Judge R. Stanton Wettick, Jr. in S & T Bank v. Coyne, No. GD 94-12141 (Allegheny County, August 11, 1994): The Jordan opinion is significant only because the judgment creditor and its attorneys are now also subject to a 2 1983 claim by a judgment debtor who did not waive its constitutional rights to notice and a hearing. New rules have been promulgated to provide for notice to be served upon the defendant in most cases prior to or during execution on a judgment entered by confession. There are three notices but only one need be given in a particular case. Under new rule 2959(a)(3), a defendant must file a petition within thirty days of service of the notice to obtain relief from the judgment or to prevent execution. After thirty days, the defendant is barred from relief unless there are "compelling reasons for the delay". The intent of these rules is to limit the necessity for hearings on issues of due process and waiver by providing the defendant with a pre-deprivation notice and opportunity for hearing on the merits. However, new Rule 2959(a)(2) specifies three instances when the issue of the voluntary, intelligent and knowing waiver of due process rights may be raised. The first is in support ora request for a stay when the court ha already denied a prior request for a stay despite timely filing of that request and "the presentation of prima facie evidence of a defense". The second is when personal property has been levied upon or attached without prior notice and hearing under new Rule 2958.2. The third is when a defendant in possession of leased residential real property has been evicted without prior notice and hearing under new Rule 2973.3. In all other instances, the issues upon a petition for relief from the judgment will be the merits and not the waiver of due process rights. - 2 - MANUFACTURES AND TRADERS : IN THE COURT OF COMMON PLEAS TRUST COMPANY, Successor by Merger : CUMBERLAND COUNTY, PENNSYLVANIA to PENNSYLVANIA NATIONAL BANK & TRUST COMPANY, Plaintiff VS. CELTIC MOON PUBLISHING, INC., Defendant CIVIL ACTION - LAW No. - PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY OF SAID COUNTY: Sir, please emer the appearance of Marc A. Hess, Esquire, of the law firm of Henry & Beaver LLP, whose address is 937 Willow Street, P.O. Box 1140, Lebanon, Pennsylvania 17042-1140 as attorney for Manufactures and Traders Trust Company, the Plaintiff in the above-captioned case. Dated: I.D. #55774 Attorney for Plaintiff · ir,