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Home My WebLink About03-6560IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, Plaintiff, VS. JOHN BURKHART, Defendant. CIVIL DIVISION COMPLAINT IN CONFESSION OF JUDGMENT Filed on behalf of Plaintiff, PNC Bank, National Association Code: Counsel of Record for This Party: Donna M. Donaher, Esquire Pa. I.D. #53165 TUCKER ARENSBERG, P.C. Firm #287 1500 One PPG Place Pittsburgh, PA 15222 (412) 566-1212 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, Plaintiff, VS. JOHN BURKHART, NO. 6. Defendant. There has been no assignment of the Guaranty. Judgment has not been entered on the Guaranty in any jurisdiction against the Defendant. COMPLAINT IN CONFESSION OF JUDGMENT AND NOW, comes the Plaintiff, PNC BANK, NATIONAL ASSOCIATION, formerly Pittsburgh National Bank, by and through its counsel, Tucker Arensberg, P.C., and files this Complaint confessing judgment in its favor, stating as follows: 1. Plaintiff, PNC BANK, NATIONAL ASSOCIATION, ("PNCB"), is a national banking association organized and existing under the laws of the United States of America and a citizen of Pennsylvania, with its main office located at Fifth Avenue and Wood Street, Pittsburgh, Pennsylvania. 2. Defendant is John Burkhart, whose last known address is 2011 Clinton Avenue, Chambersburg, PA 17201. 3. Defendant, on September 3, 2002, executed a Commemial Guaranty ("Guaranty") and thereby guaranteed prompt and punctual payment of the indebtedness due under a certain Promissory Note ("Note") between PNCB and Appalachian Equipment Inc., dated September 3, 2002. True and correct copies of the Guaranty and Note are attached hereto, incorporated herein and labeled, respectively, Exhibits "A" and "B". 4. By the Guaranty, Defendant promised to guarantee to pay Plaintiff the principal sum of $50,000.00 together with interest thereon in the manner provided by the Note. 7. The judgment by confession sought by PNCB in this Complaint is not being entered against a natural person in connection with a consumer credit transaction. 8. By Warrant of Attorney contained in the Guaranty, Defendant authorized entry of judgment by confession. 9. Pursuant to the Warrant of Attorney executed by Defendant, Defendant waived the benefit of all laws exempting real or personal property from execution. 10. Pursuant to the Warrant of Attorney contained in the Guaranty, judgment may now be entered against Defendant as payment on the Note was not made when due thereby creating an event of default under the Note and accelerating all amounts due thereunder. 11. Under the Guaranty, the following amounts are now due by Defendant to PNCB: Principal Debt Interest through 12/10/03 Attorney's Commission Total $51,727.32 $297.37 $5,202.46 $57,227.15 12. Under the terms of the Guaranty, Defendant is liable to PNCB for attorney's commission of ten percent for collection. WHEREFORE, Plaintiff, PNCB, demands that a judgment be entered against Defendant, John Burkhart, as authorized in the Warrant of Attorney contained in the Guaranty, in the sum of $57,227.15 together with interest and costs of suit. TUCKER ARENSBERG, P.C. Donna M. Donaher, Esquire 1500 One PPG Place Pittsburgh, PA 15222 (412) 566-1212 -2- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, Plaintiff, VS. JOHN BURKHART, NO. Defendant. CONFESSION OF JUDGMENT Pursuant to the authority granted in the Warrant of Attorney contained in the Guaranty, a copy of which is attached as Exhibit "A" to the Complaint filed in this action; and the Note, a copy of which is attached as Exhibit "B", the undersigned attorney hereby appears for Defendant and confesses judgment in favor of Plaintiff, PNC BANK, NATIONAL ASSOCIATION, and against Defendant as follows: Principal Debt Interest through 12/10/03 Attorney's Commission Total $51,727.32 $297.37 $57202.46 $57,227.15 Donna M. Donaher, Esquire Attorney for PNC Bank, National Association IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, ) Plaintiff, ) ) ) JOHN BURKHART, ) Defendant. ) NO. CERTIFICATE OF RESIDENCE I hereby certify that the precise address of Plaintiff is: Fifth Avenue and Wood Street Pittsburgh, Pennsylvania 15265 and that the last known address of Defendant is: 2011 Clinton Avenue Chambersburg, PA 17201 By L_ ~)(-/h~- ~ Donna M. Donaher, Esquire Attorney for PNC Bank, National Association AFFIDAVIT The undersigned hereby certifies that the judgment to be entered in this action is not being entered against a natural person in connection with a consumer credit transaction. To the contrary, the underlying transaction is a commercial transaction. --.._ )C., ~.,v'-C L Donna M. Donaher, E~quire ^ttorney for PN¢ Bank, N~tion~l ^sso¢iation Sworn to and subscribed before me this ~~5'~' day of ~'~'"~-.-~ ,2003. BANK_FIN:212858-1 012286-006670 COMMERCIAL GUARANTY - -. (~ ~ 0~01LTe ';25'/1 . ¢ Borrower~ APPALACHIAN EOUlPMF. NT WC ISSH. Lender: PN¢ Bank. NBtJonal ' Guerant~)~: JOHN B[IRKHART (SSN. i ~ 2011 CLINTON AVENUE EXHIBIT "' ' * ~ - ' . t.;OM--*-'MERCIAL GUARANTY , ., Lea o: 009445695' (Continued) Page 2 ' '" GUAI~ANTOR'$ WAIVERg.'- Ex.pt Il pml~b,tnd by appbr, able law. G~mtm~lo~ wa,vel any fqlhl to requwe Lender IAI to conlume lending p. rotect~Lmncler'a charge a~d amtoff I~h~ pro~ed in this pa~ragrliph. · , (]o~nl~ Low. This Goeranty wdl I~ govenled by, coe~trued end er. ftx, eed In accmdancm w~th ~md~ml law and t~m law~ of the No: 009445695 COMMERCIAL GUARANTY (Continued) Page 3 th~ .Guar~lm¥ Loan No: 009445695 COMMERCIAL GUARANTY (Continued) Page 4 CONFESS JUDGMENT. OR A SERIES OF JUDGMENT~. AGAINST THE GUARANTOR IN FA¥OR OF LENDER OR ANY HO~.DER HEREOF FOR THE ENTIRE PRINCIPAl. BALANCE OF THIS GUARANTY. AtI ACCRUED INTEREST AND ALL OTHER AMOUNTS DUE HEREUNDER, TOGETHER WITH COST;S OF SUIT AND AN ATTORNEY'S COMMISSION OF THE GREATER OF 10% OF SUCH pRINCIpAL AND IN;f. flE~T OR ADDED AS A REASONABLE ATTORNEY'S FEE, AND FOR DOING SO, THIS NOTE OR A COPY VERIFIED BY AFFIDAVIT SHALL RE A SUFFICIENT WARRANT. THE GUARANTOR HERESY FOREVER WANES AND RELEASES ALL ERRORS IN SAID PROCEEDINGS AND ALL RIGHTS OF APPEAL AND ALL RELIEF FROM ANY AND ALL AI~FRAISEM[NT, STAY OR EXEMPTION LAWS OF ANY STATE NOW ~N FORCE OR EXHAUST THE POWER. WHETHER OR NOT ANY SUCH EXE/~C~E SHALL RE HELD BY ANY COURT 10 BE INVALID. VOIDAB].E. nR VnID. BUT THE POWER SHALL CONTINUE UNDIMINISHED AND IT MAY BE EXERCISES FROM TIME TO TIME AS OFTEN AS LENDEIt SHALL ~.ECT UNTI~. SUCH TIME AS LENDER SHALL HAVE RECEIVED PAYMENT IN FULL OF THE DEBT, INTEREST AND COSTS. NoT~NITHSTANDINO THE X ~ ~- ~ ISeMJ JO~'N BURKHART, ~/~l~~/', PROMISSORY NOTE I PrlnclpM LoanDam Mat~rIW, Loan No C-]llC~ , Account OfflGer , Initial.I $50,000.00 ' 109~3-2002 109-03 2003 1 009~5695 ] 070IL?e I ]72671 J BOrrowe~ ~ APPALACHIAN EOUIPMENT IN(: IRaN -! 25,1853258) ,~ ~, 112 S SPORTING HILL RD ~ MECHANICSaURO, PA 17050 pdnclp~-(-Amount: $50,000.00 Initial Rate:' 6.250% Data of Note: September 3, 2002 PROMIS~'O PAY- APPALACHIAN EQUIPMENT INC ('ffo.ower'l promises Io pay to PNC B~nh, Nalmnal Assocm;m~ ('Lender'l, m order, o~ t~ Nam EXHIBIT Change In Ownm~h~p. Any chang* In ownership o! twenty-fwd perce~l {;~5%) or more Df The common SlOCk of Borrower. Advnne Chengl, A met4rLiI adveri4 change occurs In Borrower's tMenc~al condltmn, or ~.zndor bol:evel the an)SpaOt of pa*p~en! or ATTORNEYS' FEES: EXpENEE~, Lender may lure or pay someone else lo help co0ect ihrs Note al Borrower d~ie not pay Bonowlr wdl pay WAIVER OF J~)NY TRIAL, THE BORROWER iRREVOCABLY WAIVES ANY AND ALL RIOl~'S THE SORROWER MAY HAVE TO A TII]AL SY · JURY IN ANY ACTION. PROCEEDING OS CLAIM OF ANY NATURE RELATING TO THIS NOTE, ANY DOCUMENTS EXECU'rED IN CONNECTION WITH THIS NOTE OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH DOCUMENTS, THE ROPROWER ACENOWt. F. DGES 1HAT THE LINE OF CflEDR'. 'l~s Nora ev~Jence, a mv~lmng IK'm of crad~t Advances under leu! Note m~/be requested only m wnlmg by eot*rower or as · ulbe.ly. HUGH ,!;I.IOEER, Vice I~'esldenl( of APPALACHIAN EOUI~MENT INC: f. nd JOHN EURKRART, Pris~den! of APPALACHIAN EQUIPMENT OVERDRAFT PROTECTION. If Bmmwor ilec~ Owd~al! Prolecfmn in conneclmn with tim I. mll of C/edit ewJ~need by ihm Hole bV so md~cabng Loan No: 009445695 PROMISSORY NOTE (Continued) ' PROMISSORY NOTE Lean Ne: 00944.5695' (Continued) Page 3 V~YESI..R~ ~rower wart, OvMdlalt Protection Io. PNC B,~ C~ckmg ACCO~t ,o ~~ [~ ~CURR~CE OF A~ ~ENT OF D~AULT HEREUNDER. TO APP~R FOR THE SORROWER AND. W~ OR ~HOUT COMPLAI~ FILED, CONFESS ~DGMENT, OR A .SERIES OF JUDGME~S, AGAINST THE BORROWER IN FAVOR OF LENDER Off ANY IlOLD~ HEREOF FOR ~E E~IRE PRINCIPAL BALANCE OF TH~ NOTE, ALL ACCRUED INTEREST AND ALL O~ER AMOUNTS DUE HEREUNOER, TOG~H~ ~H A PPALA CH]A N .I~UIP~J*~' INC JO~N ~URKFIART, Pros~dont of APPALACHIAN EQUIPMENT INC ACT 105 OF 2000 NOTICE A JUDGMENT HAS BEEN ENTERED AGAINST YOU BY CONFESSION OF JUDGMENT. PURSUANT TO 42 PA. C.S.A. §2737.1, IF YOU WERE INCORRECTLY IDENTIFIED AS A DEFENDANT IN THE COMPLAINT IN CONFESSION OF JUDGMENT, YOU MAY BE ENTITLED TO COSTS AND REASONABLE ATTORNEY FEES AS DETERMINED BY THE COURT. YOU MAY TAKE ACTION TO STRIKE THE JUDGMENT BY FOLLOWING THE PROCEDURE IN RULE 2959 WHICH IS AS FOLLOWS: PENNSYLVANIA RULE OF CIVIL PROCEDURE 2959 - STRIKING OFF JUDGMENT. (a) (1) Relief From a judgment by confession shall be sought by petition. Except as provided in subparagraph (2), all grounds for relief whether to strike off the 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 sheriff has received a writ of execution directed to the sheriff to enfome the judgment. (2) The ground that the waiver of the due process rights of notice and hearing was not voluntary, intelligent and knowing shall be raised only (i) in support of a further request for a stay of execution where the court has 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 Pennsylvania Rule of Civil Procedure 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 the court shall issue a rule to show cause and may grant a stay of proceedings. After being served with a copy of the petition the plaintiff shall file an answer on or before the return day of the rule. 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 show cause and the answer shall be served as provided in Rule 440 (see text of Rule 440 reprinted below). (e) The court shall dispose of the rule on petition and answer, and on 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 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 is pending. Rule 440. Service of Legal Papers other than Original Process (a) (1) Copies of all legal papers other than original process filed in an action or served upon any party to an action shall be served upon every other party to the action. Service shall be made (i) by handing or mailing a copy to or leaving a copy for each party at the address of the party's attorney of record endorsed on an appearance or prior pleading of the party, or at such other address as a party may agree, or Note: Such other address as a party may agree might include a mailbox in the Prothonotary's office or an e-mail address. For electronic service by means other than facsimile transmission, see Rule 205.4(g). (ii) by transmitting a copy by facsimile to the party's attorney of record as provided by subdivision (d). (2) (i) If thero is no attorney of record, service shall be made by handing a copy to the party or by mailing a copy to or leaving a copy for the party at the address endorsed on an appearance or prior pleading or the residence or place of business of the party, or by transmitting a copy by facsimile as provided by subdivision (d). (ii) If such service cannot be made, service shall be made by leaving a copy at or mailing a copy to the last known address of the party to be served. Note: This rule applies to the service upon a party of all legal papers other than original process and includes, but is not limited to, all other pleadings as well as motions, petitions, answers thereto, rules, notices, interrogatories and answers thereto. Original process is served under Rule 400 et seq. (b) Service by mail of legal papers other than original process is complete upon mailing. (c) If service of legal papers other than original process is to be made by the sheriff, he shall notify by ordinary mail the party requesting service to be made that service has or has not been made upon a named party or person. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, Plaintiff, vs. No. JOHN BURKHART, Defendant. TO: John Burkhart, Defendant NOTICE OF ENTRY OF JUDGMENT Please take notice that on"~F~' . ;;),."~.,, 2003, a Judgment by Confession of Judgment, was entered against you in the court and at docket term and number set forth above. The amount of the Judgment is $57,227.15, plus costs. Prothonotary, Cumberland County ~ VERIFICATION The undersigned, Damella Ganaway, hereby verifies the statements of fact contained in the attached Complaint in Confession of Judgment to be true and correct according to her personal knowledge, information and belief, and further pledges that this verification is made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unswom falsification to authorities. Date: ~,~J~l. OI ~ ~ By: Attorney Relations Manager IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, Plaintiff, VS, JOHN BURKHART, Defendant. CIVIL DIVISION NO. AFFIDAVIT OF NON-MILITARY SERVICE Filed on behalf of Plaintiff, PNC Bank, National Association Code: Counsel of Record for This Party: Donna M. Donaher, Esquire Pa, I.D. ~k53165 TUCKER ARENSBERG, P.C. Firm #287 1500 One PPG Place Pittsburgh, PA 15222 (412) 566-1212 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, ) CIVIL DIVISION ) Plaintiff, ) NO. ) VS. ) JOHN BURKHART, ) ) Defendant. ) Personally appeared before me, the undersigned authority, Damella Ganaway, who, being duly sworn according to law deposes and says that upon inquiry, and from her own personal knowledge, she knows and avers that the Defendant, John Burkhart, in the above action is not in any branch of the military se~ice of the United Stat~,~l~ ' ,la Attorney Relations Manager Sworn and subscribed before me this I ~-"' day of ~°, - ~ , 2003. Notary Publi~ ~ y~~m mission expires: BANK_FIN:212911-1000011-117036 [ M¥tammlfl~ ~xp~re~ Ocj 3'1, z~,~l NO._ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNO BANK, NATIONAL ASSOCIATION, Plaintiff, VS. JOHN BURKHART, Defendant. No. 03-6560 Civil Term CERTIFICATE OF SERVICE UNDER RULE 2958.1 Filed on Behalf of Plaintiff, PNC BANK, NATIONAL ASSOCIATION Counsel of Record for This Party: Donna M. Donaher, Esquire PA I.D. No. 53165 TUCKER ARENSBERG, P.C. Firm No. 287 1500 One PPG Place Pittsburgh, PA 15222 (412) 566-1212 NO. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, Plaintiff, No. 03-6560 Civil Term VS. JOHN BURKHART, Defendant. CERTIFICATE OF SERVICE UNDER RULE 2958. I The undersigned hereby certifies that she did serve a Notice Under Rule 2958.1 of Judgment and Execution thereon, upon the Defendant, John Burkhart, on January 3, 2004, by certified mail, at the following address: 2011 Clinton Avenue Chambersburg, PA 17201 A true and correct copy of the Notice Under 2958.1 and the return receipt is attached hereto. TUCKER ARENSBERG, P.C. By 0 ov-,,.~ (~,._ ~ Donna M. Donaher, Esquire 1500 One PPG Place Pittsburgh, PA 15222 (412) 566-1212 BANK_FIN:214848.1 000011-117036 TUCKER]AREN IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, ) CIVIL DIVISION ) Plaintiff, ) VS. JOHN BURKHART, Defendant. NO. 03-6560 Civil Term Notice Under Rule 2958.1 of Judgment and Execution Thereon Notice of Defendant's Rights To.' John Burkhart 2011 Clinton Avenue Chambersburg; PA 17201 A judgment in the amount of $57,227.15 has been entered against you and in favor of the plaintiff without any prior notice or hearing based on a confession of judgment contained in a written agreement or other paper allegedly signed by you. The sheriff may take your money or other property to pay the judgment at any time after thirty (30) days after the date on which this notice is served on you. You may have legal rights to defeat the judgment or to prevent your money or property from being taken, YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. Tucker Arensberg, RC. 1500 One PPG Place Pittsburgh, PA 15222 p. 412.566.1212 f. 412.594.5619 www.tuckerlaw.com TUCKER YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE, IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFIOE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP: Lawyer Referral Service Court Administrator Cumberland County Courthouse Carlisle, PA 17013 (717) 240-6200 TUCKER ARENSBERG, P.C. Donna M. Donaher, Esquire Pa. I.D. #53165 1500 One PPG Place Pittsburgh, PA 15222 (412) 566-1212 Attorney for PNC Bank, National Association BANK_FIN:214095-1 000011-117036 Tucker Arensberg, RC. 1500 One PPG Place Pittsburgh, PA 15222 p. 412.566.1212 f. 412.594.5619 www.tuckerlaw.corn