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HomeMy WebLinkAbout09-03-08IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT IN RE: ROBERT G. TRAVER and O.C. No. 2008-00564 LOIS J. TRAVER UEST FOR RECONSIDERATION AND NOW COMES, HCR ManorCare -Camp Hill ("ManorCare"), by and through its counsel, ScHUTJER BOGAR LLC, and files this Request for Reconsideration of the Court's Order of August 21, 2008, enjoining Petitioner from Commencing A Foreclosure Against Robert and Lois Traver and in support thereof avers the following: 1. ManorCare submits the Court erred in granting the requested injunctive relief without first imposing a bond to cover the outstanding debt owed to HCR ManorCare; the law of Pennsylvania could not be clearer in that a bond must be posted before an injunction can be granted. Surco Products v. Kieszek, 367 Pa. 516, 520, 80 A.2d 842, 844 (1952). The bond requirement is mandatory. Walter v. Stacy, 2003 Pc„A~ Super t° ; ~ ll 458, 837 A.2d 1205,1208 (2003). ~~v t' i~~!-im N 2. ManorCare submits the Court erred in granting the requested ive -~ "~' =~~'. ~~ = W LL. ~---; relief in that the Petitioners failed to establish or even plead the requisite ele~ for N ;'~'''`': vo such relief: a. Specifically, the petitioners failed to establish or plead that the injunction is necessary to prevent immediate and irreparable harm that cannot be adequately compensated by damages. See Warehime v. Warehime, 860 A.2d 41 (Pa. 2004). Thus, such petition fails on its face. b. The petitioners failed to establish or plead that greater injury would result from refusing the injunction than from granting it and that granting the injunction will not substantially harm other interested parties in the proceeding. See Warehime v. Warehime, 860 A.2d 41 (Pa. 2004). Thus, such petition fails on its face. On the contrary, by enjoining ManorCare from foreclosing on the mortgage, the Court has caused greater harm in that ManorCare is now left without a remedy at law. c. The petitioners failed to establish or plead that the injunction would properly restore the parties to their status immediately prior to any alleged wrongful conduct. See Warehime v. Warehime, 860 A.2d 41 (Pa. 2004). Thus, such petition fails on its face. In essence, by granting the injunctive relief this Court has invalidated a remedy voluntarily and willingly negotiated and agreed to by the parties. 2 d. The petitioners failed to establish or plead that they are likely to prevail on the merits of their claim. See Warehime v. Warehime, 860 A.2d 41 (Pa. 2004). Thus, the petition fails on its face. In fact, petitioners do not even have a claim before the Court and they have never denied the validity of the mortgage or that funds are available to satisfy the mortgage. e. The petitioners failed to establish or plead that the injunction is reasonably suited to abate the offending activity. See Warehime v. Warehime, 860 A.2d 41 (Pa. 2004). Thus, such petition fails on its face. Moreover, ManorCare has never been accused by petitioners of engaging in any offending activity and the mortgage was voluntarily and willingly entered into by the parties. f. The petitioners failed to establish or plead that the injunction will not adversely affect the public interest. See Warehime v. Warehime, 860 A.2d 41 (Pa. 2004). Thus, such petition fails on its face. On the contrary, the Court's Order enjoining such foreclosure on the mortgage willingly entered into by the parties has adversely affected the public interest by its failure to recognize and enforce valid contracts. 3 3. Because it lacks jurisdiction to do so, ManorCare submits the Court erred in enjoining the foreclosure on the mortgage as the property in question is located in York County, Pennsylvania, and the mortgage in question has been filed in York County, Pennsylvania. WHEREFORE, ManorCare respectfully requests this Honorable Court reconsider its Order of August 21, 2008, wherein it enjoined ManorCare from foreclosing on it mortgage, and that the Court deny such relief due to the failure to properly plead and establish the requisite elements for injunctive relief and without requiring a proper bond. Respectfully submitted, SCHUTJER BOGAR LLC Dated: g By: irk ohonage Attorney I.D. No. 77851 (717) 909-8160 Brandon S. Williams Attorney I.D. No. 200713 (717) 909-5922 417 Walnut Street, 4~Floor Harrisburg, PA 17101 Fax No.: (717) 909-5925 Attorneys for Petitioner ManorCare 4