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Home My WebLink About08-6933Brian P. Downey (PA 59891) Justin G. Weber (PA 89266) PEPPER HAMILTON LLP 100 Market Street, Suite 200 Post Office Box 1181 Harrisburg, PA 17108-1181 717.255.1155 717.238.0575 Fax Attorneys for Plaintiff Cleveland Brothers Equipment Co., Inc. CLEVELAND BROTHERS EQUIPMENT IN THE COURT OF COMMON PLEAS OF CO., INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, vs. CIVIL ACTION NO. 08 - 0933 G,'a term S.A. HURLEY EXCAVATION, INC., CIVIL ACTION - CONFESSION OF JUDGMENT FOR MONEY 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 S.A. Hurley Excavation, Inc., and confess judgment in favor of the Plaintiff Cleveland Brothers Equipment Co., Inc., and against the Defendant in the amount of $13,448.62 plus continuing interest and costs of suit. Qaz B N P. DOWNEY (PA 59891) JV5TIN G. WEBER (PA 89266) Pepper Hamilton LLP 100 Market Street, Suite 200 P.O. Box 1181 Harrisburg, PA 17108-1181 717.255.1155 717.238.0575 (fax) downeyb@pepperlaw.com weberjg@pepperlaw.com Attorneys for Plaintiff Date: November 21, 2008 Cleveland Brothers Equipment Co., Inc. CLEVELAND BROTHERS EQUIPMENT CO., INC., Plaintiff, vs. S.A. HURLEY EXCAVATION, INC Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO. CIVIL ACTION - CONFESSION OF JUDGMENT FOR MONEY CERTIFICATE OF RESIDENCE I here by certify that the last known of the address of the plaintiff and defendant are as follows: Cleveland Brothers Equipment Co., Inc. 5300 Paxton Street Post Office Box 2535 Harrisburg, PA 17105 S.A. Hurley Excavation, Inc. 50 Frytown Road Newville, PA 17241 Date: November 21, 2008 B A P. DOWNEY (PA 59891) JUSTIN G. WEBER (PA 89266) Pepper Hamilton LLP Suite 200, 100 Market Street P.O. Box 1181 Harrisburg, PA 17108-1181 717.255.1155 717.238.0575 (fax) downeyb@pepperlaw.com weberjg@pepperlaw.com Attorneys for Plaintiff Cleveland Brothers Equipment Co., Inc. CLEVELAND BROTHERS EQUIPMENT CO., INC., Plaintiff, vs. S.A. HURLEY EXCAVATION, INC. Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION NO. CIVIL ACTION - CONFESSION OF JUDGMENT FOR MONEY Notice Under Rule 2958.1 Of Judgment And Execution Thereon Notice of Defendants' Rights A judgment in the amount of 13 448.62, plus continuing interest and costs of suit, 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. 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 South Bedford Street Carlisle, PA (717) 249-3166 kSTIN . DOW NEY (PA 59891) G. WEBER (PA 89266) Pepper Hamilton LLP Suite 200, 100 Market Street P.O. Box 1181 Harrisburg, PA 17108-1181 717.255.1155 717.238.0575 (fax) downeyb@pepperlaw.com weberjg@pepperlaw.com Attorneys for Plaintiff Date: November 21, 2008 Cleveland Brothers Equipment Co., Inc. Brian P. Downey (PA 59891) Justin G. Weber (PA 89266) PEPPER HAMILTON LLP 100 Market Street, Suite 200 Post Office Box 1181 Harrisburg, PA 17108-1181 717.255.1155 717.238.0575 Fax Attorneys for Plaintiff Cleveland Brothers Equipment Co., Inc. CLEVELAND BROTHERS EQUIPMENT CO., INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, VS. CIVIL ACTION NO. S.A. HURLEY EXCAVATION, INC. CIVIL ACTION - CONFESSION OF JUDGMENT FOR MONEY Defendant. COMPLAINT IN CONFESSION OF JUDGMENT NOW COMES plaintiff, Cleveland Brothers Equipment Co., Inc. ("Plaintiff'), by its undersigned attorneys, and files this complaint for judgment by confession of money. PARTIES 1. Plaintiff is a Delaware corporation with an office located at 5300 Paxton Street, Harrisburg, Dauphin County, Pennsylvania 17111. 2. Defendant S.A. Hurley Excavation, Inc. ("Hurley") is a Pennsylvania corporation with an address at 50 Frytown Road, Newville, Cumberland County, Pennsylvania 17241. INSTRUMENT 3. On or about January 11, 2002, Defendant and Plaintiff entered into an agreement whereby Defendant executed and delivered to Plaintiff an Agreement for the payment of the amount due, together with interest on any delinquent payment at 12% per annum (the "Agreement"). (A true and correct copy of the Agreement is attached hereto as Exhibit "A") DEFAULT 4. The Agreement required Defendant to pay the amount due to Plaintiff in installments as outlined on Schedule A commencing February 2002. 5. To the date of this Complaint, Defendant has failed to pay the outstanding amounts due to Plaintiff thereby constituting a default. 6. The debt evidenced by the Agreement has been accelerated by Plaintiff as a result of such default and is now due and owing in its entirety. 7. In the Agreement, Hurley, in pertinent part, authorized "the Prothonotary or any attorney of any court of record" to "appear for and confess judgment ... for all sums payable by Hurley pursuant to the contract." ITEMIZED COMPUTATION OF AMOUNT DUE 8. An itemized computation of the amounts due from Defendant to Plaintiff, under the Agreement is as follows: Principal and interest $11,397.14 Collection Fee of 18% $2,051.49 TOTAL $13,448.62 9. In addition to the foregoing, interest continues to accrue on the unpaid principal balance of the Agreement at the rate of twelve percent per year. JUDGMENT NOT BEING ENTERED AGAINST A NATURAL PERSON IN CONNECTION WITH A CONSUMER CREDIT TRANSACTION 10. The judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. -2- NO ASSIGNMENT OF THE INSTRUMENT NO PRIOR ENTRY OF JUDGMENT ON THE INSTRUMENT 11. The Agreement was previously assigned, but was reassigned to Plaintiff. 12. Judgment for money has not been entered on the Agreement in any jurisdiction. INSTRUMENT NOT MORE THAN TWENTY YEARS OLD 13. Defendant executed the Agreement less than twenty years ago. DEMAND FOR JUDGMENT WHEREFORE, as authorized by the warrant contained in the Agreement, Plaintiff demands judgment against Defendant in the amount of $13,448.62 plus continuing interest and costs of suit. Respectfully submitted, f?4 Z' B N P. DOWNEY (PA 59891) J IN G. WEBER (PA 89266) Pepper Hamilton LLP Suite 200, 100 Market Street P.O. Box 1181 Harrisburg, PA 17108-1181 717.255.1155 717.238-0575 Fax downeyb@pepperlaw.com weberjg@pepperlaw.com Attorneys for Plaintiff Date: November 21, 2008 Cleveland Brothers Equipment Co., Inc. -3- VERIFICATION I, David Hough, hereby state that I am the Senior Credit & Collections Manager for Cleveland Brothers Equipment Co., Inc., and am authorized to make this verification on its behalf. I verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that the statements in said document are made subject to the penalties of 18 Pa.C.S. § 4909 relating to unsworn falsification to authorities. DAV HO GH J? ? ??` 1 ? ? '? ? CU ? 7-' ? , _ ?,.., ? - ? ??? J 'y ? o s t? ? ? ' -? _ ? ? ?:. _-' ._? ?, ?c; ?, ..? 15X k ? b'v-? A • Clevelancl Brothers HARRISBURG-MAIN OFFICE FRACKVILLE WHITE DEER STATE COLLEGE 5300 PAXTON ST.- PHONE: 717-564-2121 PENNSYLVANIA ROUTE 61-PHONE: 717474-3560 OLD ROUTE 15-PHONE. 717-538-2551 2955 STEWART DRIVE-PHONE: 814-237-8338 WILKES-BARRE 970 WILKES-BARRE TWP. BLVD.-PHONE: 717-822-8141 PHILIPSBURG MANSFIELD LANCASTER 307 ALDER ST -PHONE 814-3424210 . U.S. ROUTE 6 EAST-PHONE: 717-662-7171 ROUTE 272.PHONE: 717-8591905 SECURITY AGREEMENT Made on January 11, 2002, between S.A. Hurley Excavation, Inc. 50 Frytown Road, Newville, PA, 17241 (being the debtor and herein called "Buyer"), a corporation, partnership or individual, said address being Buyer's mailing address and place of business or residence at which the property covered hereby will be located, and Cleveland Brothers Equipment Co., Inc., 5300 Paxton Street, Harrisburg, Pennsylvania 17105 (secured parry and herein called "Seller"), said address being Sellers address at which information concerning Sellers security interest hereunder may be obtained. Buyer and Seller have entered into a certain sales order contract (hereinafter referred to as "the contract") pursuant to which Seller has agreed to sell and Buyer has agreed to purchase certain equipment. As security for payment of the total due hereon as set forth below, including but not limited to any and all charges related thereto, and for any amount which may become due and owing Seller by Buyer pursuant to the contract for any reason, as well as to secure the payment and performance by Buyer of any other obligation, which Buyer may have to Seller, either now existing or hereafter incurred or accrued; Buyer does hereby give Seller a security interest in the equipment, machinery, and/or goods described below, all of which is hereinafter referred to as "the equipment": DESCRIPTION Refinance: One Used Caterpillar 416B Backhoe Loader, S/N 8SGO1713 F.O.B. Buyer will promptly notify Seller and in writing, of any discontinuance of any place of business, the establishment of any new place of business, or any change of location of said property. PRICE ................................................... $ 17,908.19 LESS TRADE ALLOWANCE ........... $ 0.00 BALANCE ............................................ $ 17,908.19 SALES TAX ......................................... $ 0.00 HAULING ............................................ $ 0.00 ADVANCED PAYMENTS ................. $ 3,054.40 INSURANCE ....................................... $ 0.00 FILING/TERM FEE ........................... $ 150.00 TOTAL ................................................. $ 21,112.59 CASH WITH ORDER ................... $ 0.00 CASH ON DELIVERY ................. $ 0.00 RENTAL PAYMENTS ................. $ 0.00 Skip payments Feb, Mar, 2002 and EACH Jan Feb Mar thereafter. , , , NET BALANCE ........................... $ 21,112.59 FINANCE CHARGE ................... $ 2,748.21 TOTAL DUE ................................. $ 23,860.80 Which sum buyer(s) agree(s) to pay at: Allfirst Bank in 46 installments of $See Schedule "A" each, and a final installment of $662.80 said installments commencing February 11, 2002 as evidence by promissory note(s). Any delinquent payment shall bear interest at 12% from the date of default. Buyer agrees: at all times to keep the equipment insured in such form, in such form, in such companies, in such amounts and against such risks as may be acceptable to seller, with provisions satisfactory to Seller for payment of all losses thereunder to Seller as its interests may appear, and, if required, to deposit the policies With Self" a -MY ssuriis received by Seller in payment of losses under said policies may, at Seller's option, be applied on the balance of the amount owed to Seller by Buyer whether or not the same if then due or payable, pr may be delivered by Seller to Buyer for the purpose of repairing or restoring the equipment. Buyer also agrees: that all equipment, accessories and pmts now or hereafter attached or added to the equipment or used in connection therewith shall at once become part thereof; and that loss, injury or destruction of said equipment shall not release of reduce Buyer's obligations to Seller, pursuant to the contract, this Agreement, or any promissory notes executed or delivered by Buyer to Seller with respect to the contract. In addition, Buyer agrees: to keep the equipment in as good condition as when received, reasonable wear only excepted, and in so doing and at all other times to keep the equipment free and clear of all liens and encumbrances, voluntary or involuntary; not to sell, or otherwise transfer any interest of Buyer in the equipment; not to remove the equipment form the address at which it is to be located as set forth except for temporary periods in the normal and customary use thereof; to immediately notify Seller in writing of any seizure of , levy upon, loss of possession of, destruction of, or damage to the equipment; and to perform any defaulted agreements of Buyer; any amounts expended in such performance, with interest thereon shall be payable by Buyer to Seller on demand and the security interest given herein shall further serve as security for the reimbursement thereof to Seller. Buyer will pay all costs of filing any financing, continuation, or termination statements with respect to the security interest created by this Agreement; Seller is hereby appointed Buyer's attorney in fact to do at Seller's option and at Buyer's expense, all acts and things which Seller may deem necessary to perfect and continue perfected the security interest created by this Agreement and to protect the equipment. Buyer shall be in default hereunder upon failure to pay when due any amount payable pursuant to the contact or under any promissory note which may have been given to Seller with respect thereto or upon failure to observe and perform any of Buyer's obligations pursuant to this Agreement, or if proceedings, in which Buyer is alleged to be insolvent or unable to pay Buyer's debts as they mature is instituted by or against Buyer under any of the provisions of the Bankruptcy Act or any other law, or if Buyer makes an assignment or the benefit of creditors. Whenever Buyer is in default pursuant to the contract and all other sums for which contract, said promissory notes, or this Agreement, the entire unpaid balance owing to Seller by Buyer pursuant to the contract and all other sums for which Buyer is liable to Seller pursuant to the contract, said promissory notes, or this Agreement shall become immediately due and payable at Seller's option without notice to Buyer, and Seller may proceed to enforce payment of the same and to exercise any or all of the rights and remedies afforded by law or equity, and specifically but not exclusively, those remedies afforded by the Uniform Commercial code as enacted in the Commonwealth of Pennsylvania, and upon demand by seller, Buyer shall assemble the equipment and make it available to Seller at a place reasonably convenient to Buyer and Seller. Buyer hereby authorizes the Prothonotary or any attorney of any court of record, whenever Buyer is in default pursuant to the contract and/or said promissory notes and/or this Agreement, to appear for and confess judgment as often as necessary against Buyer (1) in any action to recover possession of the equipment and (2) for all sums payable by Buyer pursuant to the contract, and/or this Agreement and/or said promissory notes, together with 18% thereof added as a collection fee. Buyer waives all errors and appeals, the right to stay of execution, and the benefit of all exemption laws of any state now or hereafter in effect. Delay in the exercise of Seller's rights, whether under the contract, this Agreement or said promissory notes, shall not constitute a waiver thereof. The waiver of any default shall not be a waiver of any subsequent default. Buyer acknowledges that no oral representations, warranties or guaranties have been made by Seller to Buyer. Buyer acknowledges that Seller has given notice to Buyer that Seller may assign and/or negotiate to a third patty Seller's rights (1) in the contract, (2) in this Agreement, and (3) in said promissory notes, all for a valuable consideration. To induce said third party to pay said valuable consideration. To induce said third party to pay said valuable consideration therefor, Buyer, intending legally to be bound hereby, agrees with said third party that (a) upon such assignment and negotiation or other transfer, all rights, powers and remedies of Seller hereunder and under said promissory notes and pursuant to the contract shall belong to and be exercisable by said third party including but not limited to the power and right to confess judgement(s) and, upon receipt of notice of such assignment or negotiation or other transfer, Buyer will render performance of Buyer's obligations under the contract, under this Agreement, and under said promissory notes to said third party, rather than to Seller, and (b) in any action brought by said third party against Buyer to recover any sums under the contract, under this Agreement, or under said promissory notes, or to recover possession of the equipment, Buyer will not assert as a defense, counterclaim, setoff, cross complaint, or otherwise any claim, known or unknown, which Buyer now has or hereafter acquires against Seller, except that Buyer has paid the total amount due Seller pursuant to the contract. The preceding clause (b) shall not apply if said equipment is "consumer goods" as defined in the Uniform Commercial Code of Pennsylvania. Despite any such assignment, Seller shall remain liable to Buyer for the performance of all of Seller's obligations to Buyer, including those arising hereunder. name S.A. Hurley Excavation, Inc. (seal) (title) By (name) (title) By (name) (title) CLEVELAND BROTHERS EQUIPMENT CO., INC. Grimes, Assistant Secretary I' S.A. Hurley Excavation, Inc. Schedule "A" Payment Schedule Contract 1 Payments 1-2 0.00 Payments 3-11 662.80 Payments 12-14 0.00 Payments 15-23 662.80 Payments 24-26 0.00 Payments 27-35 662.80 Payments 36-38 0.00 Payments 39-47 662.80 CLEVELAND BROTHERS EQUIPMENT CO., INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, vs. : CIVIL ACTION NO. S.A. HURLEY EXCAVATION, INC., CIVIL ACTION - CONFESSION OF JUDGMENT FOR MONEY Defendant. NOTICE OF ENTRY OF JUDGMENT TO: S.A Hurley Excavation, Inc. 50 Frytown Road Newville, Pennsylvania 17241 Pursuant to the requirements of Pa. R.C.P. No. 236, you are hereby notified that on Aloe c?Ll , 2008, judgment by confession was entered against you in the sum of $13,448.62, plus continuing interest and costs of suit. Date: ProAonotary Y OU 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 OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. USTED DEBE LLEVAR ESTE DOCUMENTO INMEDIATAMENT A SU ABOGADO. SI USTED NO TIENE UN ABOGADO O NO PUEDE PAGAR UNO, VAYA O LLAME LA OFFICINA ABAJO INDICADA PARA QUE LE INFORMEN DONDE PUEDE CONSEGUIR AYUDA LEGAL. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 Telephone: 717.249.3166 CLEVELAND BROTHERS EQUIPMENT CO., INC., Plaintiff vs. S.A. HURLEY EXCAVATING, INC Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2008-6933 Civil Term CONFESSION OF JUDGMENT FOR MONEY PETITION OF DEFENDANT TO STRIKE OR OPEN JUDGMENT AND NOW comes the above-named Defendant, by its attorney, Samuel L. Andes, and petitions the court to strike or, in the alternative, open judgment entered by confession in the above matter, based upon the following: 1. The Petitioner herein is the Defendant S.A. Hurley Excavating, Inc. The Respondent is the Plaintiff, Cleveland Brothers Equipment Company, Inc. 2. Defendant is a corporation organized under the laws of the Commonwealth of Pennsylvania which has been, since its formation, engaged in the excavation and earth- moving business. 3. In January of 2002, Defendant agreed to purchase a used Caterpillar 416 IT Backhoe Loader from Defendant. 4. After the agreement between the parties, Defendant made payments on the debt and believed the total amount paid satisfied in full the debt, including both principal and interest. 5. Plaintiff improperly applied some of the payments Plaintiff received from Defendant to other debts or obligations which Plaintiff claimed that Defendant owed Plaintiff. Doing so violated the conditions under which such payments were tendered by Plaintiff to Defendant. 6. If the payments made by Defendant to Plaintiff had been applied to the obligations of Defendant in accordance with Defendant's instructions, the debt claimed by Plaintiff to be due, which is the subject of this action, would be paid in full. 7. The document attached to Plaintiff's Complaint is not the document for the purchase or sale of the Caterpillar 416 IT Backhoe Loader. 8. Defendant fully paid for the Caterpillar 416 B Backhoe Loader and owes no further payment to Plaintiff for that piece of equipment. 9. Although Defendant disputes that it owes Plaintiff any money for the January 2002 contract for the purchase and sale of the Caterpillar 416 IT Backhoe Loader, to the extent there is any money owed, it is not for that item. 10. As a result of the above, Defendant does not owe the debt to Plaintiff for which Plaintiff has confessed judgment against Defendant. 11. Plaintiffs complaint and the judgment entered thereon must be stricken because the action brought is for the wrong debt and the wrong piece of construction equipment. 12. The judgment entered against Defendant in this matter must be opened so that Defendant can enter its proper and lawful defense to Plaintiffs claim. 13. To Defendant's knowledge, no judge of this court has been involved in or has entered orders previously in this case or any related case between the parties. 14. Defendant has provided copies of this Petition to Plaintiffs counsel and understands that Plaintiff opposes the relief requested by Defendant in this Petition. WHEREFORE, Defendant prays this court to open the judgment entered against it by confession to permit Plaintiff to put forth its meritorious defense to Plaintiffs claim. ?) Samuel L. An es Attorney for Defendant Supreme Court ID# 17225 525 North 12th Street P.O. Box 168 Lemoyne, Pa 17043 (717) 761-5361 M I verify that the statements made in this document are true and correct. I understand that any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904 (unsworn falsification to authorities). S.A. Hurley Excavating, Inc. Date:_ STEVE A. HURLEY, Pre ident CERTIFICATE OF SERVICE I hereby certify that I served an original of the foregoing document upon counsel for the Plaintiff herein by regular mail, postage prepaid, addressed as follows: Justin G. Weber, Esquire Pepper Hamilton, LLP 100 Market Street, Suite 200 P.O. Box 1181 Harrisburg, PA 17108-1181 Date: 22 December 2008 Amy M. rkins Se retary for Samuel L. Andes '` I ?_? i \?? tr.A.? -^r, f" _ ? , ?. SEC 1 CLEVELAND BROTHERS EQUIPMENT CO., INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. NO. 2008-6933 Civil Term S.A. HURLEY EXCAVATING, INC. Defendant CONFESSION OF JUDGMENT FOR MONEY RULE TO SHOW CAUSE AND NOW this _ day of 2001, upon consideration of the attached Petition, a Ru is here y issued upon the Plaintiff to show cause, if any they have, why the relief requested therein should not be granted. The Rule shall be served upon Plaintiffs counsel of record and shall be returnable aD days from date of service. BY THE COURT, Distribution: ? Justin G. Weber, Esquire (Attorney for Plaintiff) 100 Market Street, Suite 200, P.O. Box 1181, Harrisburg, PA 17108-1181 Samuel L. Andes, Esquire (Attorney for Defendant) 525 North 12th Street, P.O. Box 168, Lemoyne, PA 17043 I Em r" 2,t LeCL, /?S?o9 r? t °# yr 60oz Brian P. Downey (PA 59891) Justin G. Weber (PA 89266) PEPPER HAMILTON LLP 100 Market Street, Suite 200 Post Office Box 1181 Harrisburg, PA 17108-1181 717.255.1155 717.238.0575 Fax CLEVELAND BROTHERS EQUIPMENT CO., INC., Attorneys for Plaintiff Cleveland Brothers Equipment Co., Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, VS. S.A. HURLEY EXCAVATION, INC. : CIVIL ACTION NO. 08-6933 CIVIL TERM : CIVIL ACTION - CONFESSION OF JUDGMENT FOR MONEY Defendant. ANSWER OF CLEVELAND BROTHERS EQUIPMENT CO., INC. TO PETITION OF S.A. HURLEY EXCAVATION, INC. TO STRIKE OR OPEN JUDGMENT Cleveland Brothers Equipment Co., Inc., by its undersigned attorneys, responds to the Petition of S.A. Hurley Excavation, Inc. to Strike or Open Judgment as follows: 1. Admits in part and denies in part. The Petitioner in this matter is the Defendant S.A. Hurley Excavation, Inc. 2. Admits on information and belief. 3. Denies. In January 2002, S.A. Hurley Excavation, Inc. refinanced a used Caterpillar 416B Backhoe Loader with Cleveland Brothers. 4. Admits in part and denies in part. Cleveland Brothers admits only that Defendant made some, but not all, payments pursuant to the note. Cleveland Brothers lacks information sufficient to form a belief as to what Defendant believes that it paid. 5. Denies. Cleveland Brothers denies that it improperly applied some of the payments that it received or that it violated any contractual conditions regarding the application of payments. 6. Denies. Cleveland Brothers denies that it improperly applied any payments that it received from Defendant. 7. Denies as stated. The document attached to Cleveland Brothers' complaint is the document for the refinance of the Caterpillar 416B Backhoe Loader which contains a confession of judgment clause and which is the subject of the judgment that Cleveland Brothers obtained. 8. Denies. 9. Denies. Defendant owes $13,448.62 pursuant to the refinance documents as set forth in the Complaint in Confession of Judgment. 10. Denies. 11. Denies. This paragraph states a conclusion of law to which no response is required and, therefore, it is denied. 12. Denies. This paragraph states a conclusion of law to which no response is required and, therefore, it is denied. 13. Admits. 14. Admits. -2- WHEREFORE, Plaintiff Cleveland Brothers Equipment Co., Inc. requests that this Court deny Defendant's petition to open the judgment entered against S.A. Hurley Excavation, Inc. Respectfully submitted, RI P. DOWNEY (PA 59891) QJ,KTIN G. WEBER (PA 89266) Pepper Hamilton LLP Suite 200, 100 Market Street P.O. Box 1181 Harrisburg, PA 17108-1181 717.255.1155 717.238-0575 Fax downeyb@pepperlaw.com weberjg@pepperlaw.com Attorneys for Plaintiff Date: January 26, 2009 Cleveland Brothers Equipment Co., Inc. -3- VERIFICATION 1, David Hough, hereby state that 1 am the Senior Credit & Collections Manager for Cleveland Brothers Equipment Co., Inc., and am authorized to make this verification on its behalf. I verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that the statements in said document are made subject to the penalties of 18 Pa.C.S. § 4900 relating to unsworn falsification to authorities. DAVID HOUGH CERTIFICATE OF SERVICE I hereby certify that on January 26, 2009, I served a copy of the foregoing Answer of Cleveland Brothers Equipment Co., Inc. to Petition of S.A. Hurley Excavation, Inc. to Strike or Open Judgment by United States mail, first class postage prepaid, addressed as follows: Samuel L. Andes, Esquire 525 North 121" Street P.O. Box 168 Lemoyne, PA 17043 c-1-4Lt- Jus n G eber (PA 89266) n.? ??' ?=? .. d r. , e ''J ,_?_t .xa ?. _-^{ --, -i ;,a *,.+ ?'r t_. .?? w t,'" f°d 3 S`.: ..r .. ,Y+ R CLEVELAND BROTHERS EQUIPMENT CO., INC., PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. S.A. HURLEY EXCAVATION, INC., DEFENDANT NO. 08-6933 CIVIL ? CLEVELAND BROTHERS EQUIPMENT CO., INC., PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. STEVE HURLEY, d/b/a S & S EXCAVATING, DEFENDANT NO. 08-6934 CIVIL ORDER OF COURT AND NOW, this 2nd day of February, 2009, upon consideration of the Defendant's Petition to Open or Strike Judgment and the Plaintiff's Answer thereto, IT IS HEREBY ORDERED AND DIRECTED that a status conference will be held on Tuesday, February 17, 2009, at 8:30 a.m. in chambers of Courtroom No. 5 of the Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court, ./ Justin G. Weber, Esquire Suite 200, 100 Market Street P. O. Box 1181 Harrisburg, PA 17108-1181 Attorney for Plaintiff M. L. Ebert, Jr., J. s 9, : ? i ?'d 7 - " Ij'D00Z J ":HL 1 Samuel Andes, Esquire 525 North 12th Street P. O. Box 168 Lemoyne, PA 17043 Attorney for Defendant bas Ces rn a.1 ;4L a?? jo4 CLEVELAND BROTHERS EQUIPMENT IN THOUR OF OMMON PLEAS OF CUMBERLAND COUNTY, CO., INC., PLAINTIFF V. S.A. HURLEY EXCAVATION, INC., DEFENDANT NO. 08-6933 CIVIL CLEVELAND BROTHERS EQUIPMENT IN THE COURT OOMMON PLEAS OF CUMBERLAND COUNTY, CO., INC., PLAINTIFF V. STEVE HURLEY, d/b/a S & S EXCAVATING, DEFENDANT NO. 08-6934 CIVIL IN RE: SCHEDULING ORDER OF COURT AND NOW, this 17th day of February, 2009, after status conference with Counsel in the above captioned cases, IT IS HEREBY ORDERED AND DIRECTED that: 1. The parties shall exchange all documents pertaining to the payments and financing of the heavy excavating equipment in dispute from January 1, 2002 to the present on or before April 17, 2009; 2. The parties shall conduct depositions relevant to this dispute on or before May 29, 2009; 3. A hearing in this matter will be held on Wednesday, July 8, 2009, at 9:00 a.m. in Courtroom No. 5 of the Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court, M. L. Ebert, Jr., J. .C) Q r J? Vi \Y11? ?= l -? t 9 ?t :21 Wd L ! 93A 69OZ stin G. Weber, Esquire Suite 200, 100 Market Street P. O. Box 1181 Harrisburg, PA 17108-1181 Attorney for Plaintiff /amuel Andes, Esquire 525 North 12th Street P. O. Box 168 Lemoyne, PA 17043 Attorney for Defendant bas CLEVELAND BROTHERS EQUIPMENT CO., INC., Plaintiff, vs. S.A. HURLEY EXCAVATION, INC Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO. 08-6933 CIVIL TERM CIVIL ACTION - CONFESSION OF JUDGMENT FOR MONEY CLEVELAND BROTHERS EQUIPMENT IN THE COURT OF COMMON PLEAS OF CO., INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, VS. CIVIL ACTION NO. 08-6934 CIVIL TERM STEVE HURLEY d/b/a S&S CIVIL ACTION - EXCAVATING, CONFESSION OF JUDGMENT FOR MONEY Defendant. ORDER AND NOW, this day of June, 2009, the hearing scheduled for Wednesday, July 8, 2009 is cancelled but a hearing may be rescheduled at the request of either party. BY THE COURT: EBERT, J. FILED-40rFICE OF THEE PROTHO'N'DTARY 2009 JUM 10 PH 2: 3 4 UW8! . -,j ', .; I:j -0.PINS V'w 096 "J r'F_S irz c ?C??3 'rl 04 . A,