HomeMy WebLinkAbout08-7503r
JANET W. HARTMAN,
Plaintiff
vs.
HERSHEY-PHILBIN ASSOCIATES, INC.,
Defendant
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 66 - ?'? t. C-an
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 ejectment in favor of the Plaintiff and against the Defendant for possession of the
real property described as follows: Defendant's undivided one-third interest, as a tenant in
common, in the property known and numbered as 2101 Orchard Road, Camp Hill, Lower Allen
Township, Cumberland County, Pennsylvania, as is more particularly bounded and described
on Exhibit A which is attached hereto and made a part hereof.
Date: Zq
Attorney for Defendant, Hershey-Philbin Associates, Inc.
Supreme Court ID 17225
525 North 12th Street
Lemoyne, PA 17043
(717) 761-5361
y
EXHIBIT "A"
ALL that certain piece or parcel of land situate in Lower Allen
Township, Cumberland County, Pennsylvania, more particularly
bounded and. described as follows, to wit:
MMMM_
BEGINNING at a point in the middle of the township road leading
from Carlisle Road to Spring Lake Colony, -said point being 30.1"1
feet west of the center line of Carlisle Road; thence by other
lands of Hartman, South 05 degrees 17 minutes West, 210.64 feet
to an iron pin; thence by lands now or formerly of Garver, South
83 degrees 16 minutes West, 200.00 feet to an iron pin; thence
still by other lands now or formerly of Garver, North 15 degrees
52 minutes West, 215.27 feet to a point in the center of the
aforesaid township road; thence by the middle of said road, north
84 degrees 39 minutes East, 278.02 feet to the point of
BEGINNING.
HAVING thereon erected a three story office building known and
numbered as 2101 Orchard Road, Camp Hill, Pennsylvania.
GUIDO,
FF &
LAND
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Hill, PA
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JANET W. HARTMAN, )
Plaintiff )
VS. )
HERSHEY-PHILBIN ASSOCIATES, INC., )
Defendant )
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW ec,cCTE
NO. o8 - 7s w COMPLAINT FOR CONFESSION OF JUDGMENT IN EJECTMENT
AND NOW comes the above-named Plaintiff, by her attorney Samuel L. Andes, and
makes the following Complaint for Confession of Judgment in Ejectment in this matter, based
upon the following:
1. The Plaintiff is Janet W. Hartman, an adult individual who resides in New
Cumberland, Cumberland County, Pennsylvania.
2. The Defendant is Hershey-Philbin Associates, Inc., a Pennsylvania corporation
which maintains its principal offices at 2101 Orchard Road in Camp Hill, Lower Allen
Township, Cumberland County, Pennsylvania.
3. By an Installment Agreement of Sale dated 24 October 1994, between the
Defendant and Robert G. Hartman, Jr., Defendant agreed to purchase a one-third interest in
premises known and numbered as 2101 Orchard Road in Camp Hill, Pennsylvania, which
premises were more particularly described in Exhibit A attached to the said Agreement, and
pay for that property the sum of $148,000.00. A photostatic copy of the Installment
Agreement of Sale, which is a true and correct reproduction of the original agreement, is
attached hereto and marked as EXHIBIT A.
4. By his Deed dated 19 September 1996, the said Robert G. Hartman, Jr., conveyed
the entire property which was the subject of the aforementioned agreement, and thereby
assigned and transferred his interest in said agreement, to his wife, Janet W. Hartman. Janet
W. Hartman is the Plaintiff herein.
5. Paragraph 15 of the aforementioned agreement of sale contains a warrant of
attorney permitting a confession of judgment in ejectment in the event of Defendant's default
and specifically states:
Said Seller, at Seller's option among other remedies available to Seller,
may proceed by Action of Ejectment on this agreement after default made as
aforesaid for the recovery of said premises; in such case, Buyer hereby
authorizes and empowers any attorney of any court of record in the
Commonwealth of Pennsylvania, or elsewhere, to appear for Buyer and confess
judgment of ejectment and authorizes the immediate issuing of a Writ of
Possession and Execution (without asking leave of court) for the costs and a 5%
attorney's commission or fees, waiving all stay and exemption laws.
6. Defendant is in default of its obligations under the agreement of sale as follows:
A. Payment due for the month of February 2008 was not made until
April of that year.
B. Payment due for the month of March 2008 was not made until May of
that year.
C. Payment due for the month of April 2008 was not made until August
of that year.
D. Payments due for the months of November and December of 2007
and January of 2008 were not paid until March of 2008, making those payments
all at least sixty (60) days late.
E. The payments due for the month of May 2008 and subsequent
months have not been paid.
Pursuant to Paragraph 1 of the aforementioned Agreement, the monthly payments, in the
amount of $1,234.80 were to be paid on the 1 n day of each month. Asa result of the failure
to make these payments, the amount due is $8,643.46 for unpaid installments due as of the
date of this complaint.
7. Paragraph 15 of the aforementioned Agreement requires Plaintiff to give Defendant
at least thirty (30) days' prior notice before commencing an action in ejectment. Plaintiff,
through her attorney, gave that notice to Defendant, through its attorney, by a Notice of
Default dated 19 September 2008 and mailed that day. A copy of said Notice of Default is
attached hereto and marked as EXHIBIT B.
8. No judgment has been entered on the aforementioned agreement in any
jurisdiction prior to this action.
9. The judgment entered in this matter is not entered against a natural person in
connection with a residential lease.
10. The property for which Plaintiff seeks a judgment of ejectment is the Defendant's
one-third interest, as a tenant in common, in the property known and numbered as 2101
Orchard Road in Camp Hill, Lower Allen Township, Cumberland County, Pennsylvania, and is
more particularly bounded and described on EXHIBIT C which is attached hereto and made a
part hereof.
WHEREFORE, Plaintiff demands a judgment in ejectment against the Defendant for
the property described in EXHIBIT C attached hereto.
Samuel L. Andes
Attorney for Plaintiff
Supreme Court ID 17225
525 North 12'' Street
Lemoyne, PA 17043
(717) 761-5361
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
(unswom falsification to authorities).
Date: S NoWige4 2,vo8 - al
W.HARTMAN
EXHIBIT A
INSTALLMENT AGREEMENT OF SALE
UIDIS, GUIDO,
SNUFF &
MASLAND
'•109 Market Street
Camp Hiii, PA
THIS AGREEMENT made as of the -=-? day of
1994 by.and between ROBERT G. HARTMAN, JR. of Cumberland County,
Pennsylvania, hereinafter referred to as "seller" and HERSHEY-
PHILBIN ASSOCIATES, INC. of Dauphin County, Pennsylvania, here-
inafter referred to as "buyer," WITNESSETH:
THAT, in consideration of the mutual covenants and agree-
ments hereinafter contained, seller agrees to sell and convey,
and buyer agrees to purchase,
ALL that certain tract or parcel of land in Lower Allen
Township, Cumberland County, Pennsylvania, being a one-third
interest in the premises known and numbered as 2101 Orchard Road,
Camp Hill, Pennsylvania, and the curtilage as more particularly
described and set forth in Exhibit "A" attached hereto and
incorporated herein by reference, upon the following terms and
conditions:
1. CONSIDERATION - The purchase price to be paid by
buyer shall be the sum of $148,000, to be paid as follows:
A. $14,800 in cash at the signing and delivery of
this agreement, the receipt whereof is hereby acknowledged;
B. The balance of $133,200, together with inter-
sst at the rate of 7.5% per annum shall be due and payable-within
°iy years from the date hereof. Commencing on the 1st day of
, 1994, and thereafter on the 1st day of each
lonth, buyer shall make payments of $1,234.80 to be applied first
•o interest as aforesaid and the balance to principal until both
?rincipal and interest have been fully paid. Nothing herein con-
.ained shall alter or affect the maturity date of this agreement.
t
2. PREPAYMENT - Buyer shall have the right to prepay
all or any part of the unpaid principal balance without penalty
for such prepayment, at any time and from time to time on any
regular installment due date, together with interest on such
prepayment to the date of payment. At the time of payment in
full, together with interest as aforesaid, buyer shall be enti-
tled to receive title to the subject premises from seller, and
seller shall be obligated to convey title to the subject premises
to buyer in the manner set forth hereinafter in Paragraph 9.
3. APPORTIONMENT OF REAL ESTATE TAXES RENTS AND
EXPENSES - Local real estate taxes shall be apportioned on a
fiscal year basis to the date of execution of this agreement.
Thereafter, real estate taxes shall be apportioned in conformity
to a tenants in common ownership agreement attached hereto as
Exhibit "B" and made a part hereof.
SAIDIS, GUIDO,
SNUFF &
MASLAND
2109 Market Street
Camp Hill, PA
4. TRANSFER TAXES - Seller shall pay all state realty
transfer taxes calculated on the agreed consideration at the rate
applicable on the date of this agreement; buyer shall pay any
local transfer tax, any documentary tax, and any increases in the
rate of the state tax from that existing at the date of this
agreement. Said conveyance'stamps and taxes shall be furnished
or paid for at the time of delivery of the deed.
5. POSSESSION AND OCCUPANCY - Buyer shall be entitled
to possession of the third floor of the premises and an unspeci-
fied one-third, but not less than 20, of the parking spaces in
the parking areas adjacent to the premises upon execution of this
agreement in conjunction with the rights of the seller in said
parking areas.
6. RECORDING - This agreement may be filed of record
in any public office, as appropriate.
7. LEGAL TITLE - Upon payment in full, seller, his
heirs and assigns, is obligated to convey to buyer, its heirs,
successors and assigns, legal title to the premises free and
clear of all liens, encumbrances and easements,.excepting the
following: existing building restrictions, ordinances, easements
of roads, privileges or rights of public service companies, if
any, agreements or like matters of record, and easements or
restrictions visible upon the ground, and a first mortgage to
Pennsylvania State Bank in the original amount of $238,400, which
obligation shall remain the obligation of seller without any
contribution by buyer. Otherwise, the title to the described
real estate shall be good and marketable, such as will be insured
by a licensed title insurance company at regular rates. Legal
title shall be conveyed by fee simple deed with a special war-
ranty.
In the event seller is unable to give a good and
marketable title such as will be insured by a licensed title
insurance company subject to the aforesaid, buyer shall have the
option of taking such title as seller can give, without abatement
of price, or of being repaid all moneys paid by buyer to seller
on account of the purchase price, together with such reasonable
costs of searching the title as buyer may have incurred. In the
latter event, there shall be no further liability or obligation
as to either party concerning this agreement which thereafter
shall be null and void. Buyer shall be entitled to recover the
aforesaid costs of title search only if buyer obtained an attor-
ney's opinion of condition of title and notified seller of any
objections within thirty (30) days after date hereof.
8. MAINTENANCE REPAIRS INSURANCE AND TAXES - Buyer
agrees that buyer, at its own expense, will maintain the third
floor of the premises in a reasonable state of repair at all
times and will make any improvements to said premises without
contribution from the seller. Buyer agrees to make any and all
repairs to the third floor which, from time to time, become
necessary or are mandated by federal, state, county or municipal
law, ordinance or code in effect now or may become effective in
the future.
3AIDIS, GUIDO,
SNUFF &
MASLAND
2109 Market Street
Camp Hill, PA
Common maintenance, repairs, insurance and taxes
relating to the premises as a whole shall be made in accordance
with the tenants in common ownership agreement.
9. IMPROVEMENTS AND.ALTERATIONS - No major improve-
ments or alterations shall be made to the premises without the
prior written consent of seller, which consent shall not be
withheld unreasonably. Buyer agrees that seller or seller's
agents shall have the right at all reasonable times of the day
and upon reasonable notice under the circumstances to enter the
premises for the purpose of inspection to determine whether buyer
has complied with the terms hereof.
In the event of buyer's default as to the terms of
this agreement, any and all improvements and additions made to
the subject premises shall be and remain a permanent part of the
premises;' they shall not be removed by buyer and buyer will not
be entitled to any reimbursement therefor; nevertheless, if such
improvements, alterations or additions were made without the
written prior approval of seller, buyer will remove same within
shirty (30) days, upon written notice from seller so to do. In
:he event of such notice to remove these items, buyer will repair
.he surfaces from which such improvements were removed in confor-
lity with the surrounding surfaces.
10. STRUCTURAL CHANGES - No structural changes shall
be made to the premiss occupied by the buyer without the knowl-
edge and written consent of the seller.
;AIDIS, GUIDO,
SHUFF &
MASLAND
2109 Market Street
Camp Hill, PA
11. ASSIGNMENT OR SALE - This agreement may not be
assigned by buyer without the prior written approval of seller,
nor may the premises be sold by buyer by means of an-installment
sales agreement or comparable document without the prior written
approval of seller; provided that the premises purchased by buyer
may be sold in accordance with the Tenants in Common Ownership
Agreement.
12• WARRANTY AS TO CONDITION USE OR OCCUPANCY -
The premises are being sold in "as is" condition and it is
understood that buyer has inspected the property or hereby waives
the right to do so, and that buyer has agreed to purchase the
property as the result of buyer's inspection and not because of
or in reliance on any representation made by the seller or
seller's agent. Seller makes no warranty or representation as to
the conformity of any future use or occupancy of the subject
premises insofar as federal, state or local laws are concerned
relative to zoning, building or other laws, ordinances or codes.
In the event that buyer wishes to obtain approval of a change of
use or occupancy, seller agrees to cooperate to any reasonable
degree in such application or request, providing all costs
associated therewith shall be borne by buyer.
13. CONDEMNATION - In the event of condemnation of the
subject premises or any portion thereof by an
agency, public authority or utility prior to theovayment of
the within obligations from buyer to seller, the pPayment of all
damages for the "taking" shall be divided between theebuyer and
the seller "as their respective interests then may appear."
14. DEFAULT - Any failure of the buyer to make payment
of any moneys required by this agreement within thirty (30) days
after the due date for such payment, or any acts, or the perfor-
mance of any act forbidden by this agreement, or the failure to
perform any act required by this agreement, may constitute a
default, at the option of seller. In the case of default by
buyer, seller shall retain any and all moneys received under the
provisions of this agreement (whether on account of purchase
:Honey or otherwise) as compensation for buyer's use and occupancy
of said premises.
15. CONFESSION OF JUDGMENT - In the event of default
3f payment of any sum of principal or interest herein agreed to
>e paid for the space of thirty (30) days after the same shall
become due and payable by the terms hereof, or the breach of any
other of the terms of this agreement, the whole of said principal
sum, at the option of seller, shall become due and payable
forthwith, anything hereinbefore contained to the contrary
notwithstanding. In such case of default, buyer hereby author-
izes and empowers any attorney of any court of record in the
Commonwealth of Pennsylvania or elsewhere to appear for buyer and
confess a judgment for the entire principal sum and interest
remaining unpaid hereon, with 5% attorney's commission or fees,
hereby waiving the right of exemption and inquisition, so far as
the land herein described, and any property or building thereon
may be concerned. Said seller, at seller's option, among other
remedies available to seller, may proceed by Action of Ejectment
on this agreement after default made as aforesaid for the recov-
ery of said premises; in such case, buyer hereby authorizes and
empowers any attorney of any court of record in the Commonwealth
of Pennsylvania, or elsewhere, to appear for buyer and confess
judgment of ejectment, and authorizes the immediate issuing of a
Writ of Possession and Execution (without asking leave or court)
for the costs and 5% attorney's commission or fees, waiving all
stay and exemption laws.
Prior to the entry of judgment by confession or the
filing of an action of ejectment, seller shall give to buyer
written notice of default and seller's intention to proceed by
legal action, which notice shall provide a period of thirty (30)
days during which the buyer can correct the default.
16. RIGHT OP BUYER TO PAY LIENS -
Camp Hill, PA - In addition to
MIDIS, GUIDO,
SHM &
MASLAND
2109 Market Street
mortgage to PennsylvianiaeState Bank, noticetof therentry tiof an
mortgage, judgment, lien or other encumbrance affecting title to
said premises received by the seller after the date of the
execution of this agreement shall be given by the seller to the
buyer within thirty (30) days of the recording thereof in the
Cumberland County Court House.
B. Delinquent Payments - In the event any mort-
gage, judgment, lien or other encumbrance affecting title to the
premises existing at the date of the execution of this agreement
or hereafter entered of record and default in the payment is made
by the seller, then buyer shall have the right to make the
delinquent payments and to receive credit for the full amount of
said payments made by the buyer and to deduct the amount thereof
from the required monthly payments under this agreement. Prior
to exercising the rights stated in this paragraph, buyer shall
Give seller 48 hours notice by certified mail of his intent to do
3o, but this provision shall not limit buyer's right to make the
ielinquent payments and to claim credit therefor.
17. APPLICABLE LAW - In the event of any disagreement
or misunderstanding, the terms of this agreement shall be con-
strued pursuant to the laws of the Commonwealth of Pennsylvania
in effect at the time of the execution hereof and as they may be
amended subsequently.
1AIDIS, GUIDO,
SHUFF &
MASLAND
2109 Market Street
Camp Hill, PA
18. SELLER'S RIGHT TO SEVER BUYER'S INTEREST AS A UNIT
OF A CONDOMINIUM STRUCTURE - Seller, at any time during the five
year period of this agreement, may elect to file documents with
the appropriate authorities to make the entire building and the
curtilage described on Exhibit "A" as a condominium structure and
to limit buyer's interest in the condominium to the third floor,
an undefined one-third of the applicable parking area and an
interest in the common elements of the building.
19. ENTIRE AGREEMENT - This document contains the
entire agreement between buyer and seller; there are no represen-
tations, warranties, covenants, terms or conditions, except as
specifically set forth herein.
20. TIME OF THE ESSENCE - It is the agreement of the
parties hereto that time shall be of the essence.
21. BINDING AGREEMENT - This agreement shall extend to
and be legally binding upon the parties, their respective heirs,
executors, administrators and assigns.
22. WAIVER - The failure of either party to insist
upon strict enforcement of any provisions of this agreement shall
not constitute a waiver of the right to enforcement of that
provision or of any other provision.
23. DESCRIPTIVE HEADINGS - The descriptive headings
used herein are for convenience only and they are not intended to
indicate all of the matter in the sections which follow them.
Accordingly, they have no effect whatsoever in determining the
rights or obligations of the parties.
IN WITNESS WHEREOF, the parties have hereunto set their
hands and seals the day and year,first above written.
UTNESS :
Art G., (SEAL)
Hartman, J .
ATTEST:
HERSHEY-PHILBIN ASSOCIATES, INC.
Secretar Presi ent (SEAL)
SAIDIS, GUIDO,
SNUFF &
MASLAND
2109 Market Street
Camp Hill, PA
COMMONWEALTH OF PENNSYLVANIA)
COUNTY OF SS.
CUMBERLAND)
Hershey-Philbin Associates, Inc.
I hereby certify that on this
°?`4 day of
1994, before me, a notary public in and for the above county and
state, personally appeared ?j 7L
the
attorney named in the foregoing Indenture, and by virtue and in
pursuance of the authority therein conferred upon him, acknowl-
edged the said Indenture to be the act and deed of the said
WITNESS my hand and notarial seal the day and year afore-
said.
otary Public
SAIDIS, GUIDO,
SHUFF &
MASLAND
2109 Market street
Camp Hill, PA
THELMA S. MCC US SLLIN Nol t
Camp Hill, Cumberland Coun y bllc
MY Commission Expires July 3, 1996
EXHIBIT "A"
ALL that certain piece or parcel of land situate in Lower Allen
Township, Cumberland County, Pennsylvania, more particularly
bounded and described as follows, to wit:
BEGINNING at a point in the middle of the township road leading
from Carlisle Road to Spring Lake Colony, said point being 30.11
feet west of the center line of Carlisle Road; thence by other
lands of Hartman, South 05 degrees 17 minutes West, 210.64 feet
to an iron pin; thence by lands now or formerly of Garver, South
83 degrees 16 minutes West, 200.00 feet to an iron pin; thence
still by other lands now or formerly of Garver, North 15 degrees
52 minutes West, 215.27 feet to a point in the center of the
aforesaid township road; thence by the middle of said road, north
84 degrees 39 minutes East, 278.02 feet to the point of
BEGINNING.
HAVING thereon erected a three story office building known and
numbered as 2101 Orchard Road, Camp Hill, Pennsylvania.
mIS, GUIDO,
SEIM &
AASLAND
09 Market Street
Camp Hill, PA
13
EXHIBIT B
NOTICE OF DEFAULT
TO: Hershey-Philbin Associates, Inc.
c/o Robert C. Saidis, Esquire
26 West High Street
Carlisle, PA 17013
You are hereby notified that you are in default of the Installment Agreement of Sale
between yourself and Robert G. Hartman, Jr., dated 24 October 1994. Pursuant to that
Agreement you were to make regular monthly installment payments of principal and interest in
the amount of $1,234.80. You have failed to do that in the following ways:
A. The payments due for the month of November and December of
2007 and January of 2008 were not paid until 30 March 2008. Those payments
were all at least sixty (60) days late.
B. The payment made for February of 2008 was not made until April of
2008.
C. The payment for the month of March of 2008 was not made until May
of 2008.
D. The payment due for the month of April of 2008 was not made until
late August 2008.
E. The payments due for the months of May, June, July, August, and
September of 2008 have not been made.
You are hereby notified that Janet Hartman, as the successor in interest to Robert G.
Hartman, Jr., has elected to treat the above failures to make timely payments as a default of
the agreement and that she hereby terminates the agreement,and your rights under it.
Further, you are notified that she intends to pursue her legal remedies, as set out in Paragraph
15 of the Agreement thirty (30) days after the date of this Notice.
Date: 19 September 2008
el L. es
Attorney for Janet Hartman, Seller
EXHIBIT C
EXHIBIT "A"
ALL that certain piece or parcel of land situate in Lower Allen
Township, Cumberland County, Pennsylvania, more particularly
bounded and-described as follows, to wit:
MMM..
BEGINNING at a point in the middle of the township road leading
from Carlisle Road to Spring Lake Colony, said point being 30.11
feet west of the center line of Carlisle Road; thence by other
lands of Hartman, South 05 degrees 17 minutes West, 210.64 feet
to an iron pin; thence by lands now or formerly of Garver, South
83 degrees 16 minutes West, 200.00 feet to an iron pin; thence
still by other lands now or formerly of Garver, North 15 degrees
52 minutes West, 215.27 feet to a point in the center of the
aforesaid township road; thence by the middle of said road, north
84 degrees 39 minutes East, 278.02 feet to the point of
BEGINNING.
HAVING thereon erected a three story office building known and
numbered as 2101 Orchard Road, Camp Hill, Pennsylvania.
DIS, GUIDO,
CHUFF &
iASLAND
9 Market Street
:amp Hill, PA
13
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CASE NO: 2008-07503 P
SHERIFF'S RETURN - REGULAR
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
HARTMAN JANET W
VS
HERSHEY-PHILBIN ASSOCIATES INC
CPL. TIMOTHY REITZ , Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within NOTICE & COMPLAINT - EJEC was served upon
W P.qW V-PNTT,RTN AggnrTATF.q TNr the
DEFENDANT , at 1611:00 HOURS, on the 8th day of January , 2009
at 2101 ORCHARD ROAD
CAMP HILL, PA 17011
by handing to
LINDA RHINEHART, VICE PRESIDENT
a true and attested copy of NOTICE & COMPLAINT - EJEC together with
CONFESSION OF JUDGMENT
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Postage
Surcharge
Sworn and Subscibed to
before me this
of
So Answers:
18.00
13 .50 .42
10.00 R. Thomas Kline
.00
41.92 01/09/2009
SAMUEL ANDES
By.
day Dep ty She iff
A. D.
B!
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JANET W. HARTMAN, IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V.
CIVIL ACTION -LAW
HERSHEY-PHILBIN ASSOCIATES, INC.,:
: NO. 08-7503
Defendant : CIVIL TERM
MOTION TO STRIKE AND/OR OPEN JUDGMENT
OF EJECTMENT BY CONFESSION
AND NOW, comes the Defendant, HERSHEY-PHILBIN ASSOCIATES, INC., by its
attorney, R. Mark Thomas, Esquire, and files this Motion to Strike the Judgment, and/or
Petitions this Court to Open the Judgment entered by confession, and in support thereof
respectfully represents:
1. The Defendant is the buyer as identified in the Installment Agreement of Sale
which is attached as Exhibit "A" to Plaintiffs Complaint for Confession of
Judgment in Ejectment; however, there is an additional Tenants in Common
Ownership Agreement (hereinafter referred to as the "Ownership Agreement")
which was made a part of the Installment Agreement and was not attached to
Plaintiff's Complaint. The Ownership Agreement is attached hereto as
Defendant's Exhibit "A".
2. Plaintiff, JANET W. HARTMAN, is not a party to the Installment Agreement of
Sale, and there is nothing of record to evidence that she has acquired the interest
of Robert G. Hartman, Jr., in and to this Installment Agreement of Sale.
3. Paragraph 4 of Plaintiff's Complaint erroneously states that Robert G. Hartman,
Jr., deceased, conveyed the "entire" property which is the subject of the Judgment
of Confession to Plaintiff, but the deed only transfers a "2/3 Tenants in Common
Interest" in the property. A copy of the recorded deed dated September 19, 1996,
is attached hereto and incorporated herein as Defendant's Exhibit "B".
4. There is nothing of record to evidence a transfer or assignment of Robert G.
Hartman, Jr.'s, interest in the Agreement dated October 24, 1994, to Plaintiff.
5. On July 7, 2000, an Extension Agreement was executed by and between Robert
G. Hartman, Jr., and the Defendant to extend the payment terms of the October
24, 1994, Agreement. A copy of that Extension Agreement is attached hereto and
incorporated herein as Defendant's Exhibit "C".
6. Plaintiff is not identified as a party to the Extension Agreement, nor does the
Extension Agreement mention that Plaintiff has acquired an interest in the
Agreement, or the One-Third (1 /3) interest in the property being purchased by
Defendant.
7. According to the record that now exists, Plaintiff has never had an ownership
interest in the property which Defendant is purchasing pursuant to the Installment
Agreement of Sale dated October 24, 1994, nor has Plaintiff ever been a party to
the Installment Agreement of Sale, or its extension.
Under these circumstances, Plaintiff is not entitled to a Confession of Judgment of
Ejectment which would give Plaintiff title to property in which she, in effect, has
no interest of record.
9. According to Plaintiffs Complaint, Defendant has paid One Hundred Seventy-
Seven Thousand Eight Hundred Eleven Dollars and Twenty Cents ($177,811.20)
to acquire title to an undivided One Third (1/3) interest in the property from
which Plaintiff now seeks to have it ejected.
10. Furthermore, as will be made clear in the following Petition/Motion to Open
Judgment, Defendant has a meritorious defense to any alleged default under the
Installment Agreement for Sale.
WHEREFORE, Defendant, HERSHEY-PHILBIN ASSOCIATES, INC., prays that this
Honorable Court will strike the Judgment in Ejectment which was entered by Confession.
PETITION TO OPEN JUDGMENT
11. Paragraphs 1 through 10 are incorporated herein as if they were set forth at length.
12. Defendant is not in default of the Installment Agreement for Sale.
13. In addition to payments totaling One Hundred Seventy-Seven Thousand Eight
Hundred Eleven Dollars and Twenty Cents ($177,811.20), Defendant has invested
more than One Hundred Thousand Dollars ($100,000.00) in improvements to the
third floor of the building which, pursuant to the Ownership Agreement, was to be
the exclusive possession of Defendant.
14. In March 2008, Orrstown Bank issued a loan commitment to the shareholders of
Defendant in the amount of Two Hundred Fifty Thousand Dollars ($250,000.00),
part of which was to be used to pay off the Installment Agreement of Sale and
allow Defendant to take title to an undivided One Third (1/3) interest in the
property at 2101 Orchard Road, Camp Hill, Pennsylvania property
15. Plaintiff was unable to deliver legal title which was good, marketable and
insurable at regular rates due to the following reasons:
a. On April 10, 2000, Lower Allen Township approved a Plan submitted to
the Township by Plaintiff and Robert G. Hartman, Jr., to combine the
2101 Orchard Road property with an adjacent tract of land into one (1) lot,
and thereby changed the boundaries of the property which had been the
subject matter of the Installment Agreement of Sale;
b. It is believed and therefore averred that the combined Lot No. 1 cannot be
re-subdivided, so as to give Defendant a One Third (1/3) interest in the
property which was the subject matter of the Agreement; and
C. Plaintiff could not issue a deed to Defendant in conformity with the
Installment Agreement.
16. Due to the issues concerning the change brought about by the combination of the
two (2) lots into one (1) lot, as well as the failure of Robert G. Hartman, Jr., to
convert the third floor of the building to a condominium, Defendant was unable to
acquire its' One Third (1/3) interest as provided in the Agreement, nor was it able
to acquire title to the third floor as a condominium unit.
17. Subsequently, and for the reasons cited above, Orrstown Bank withdrew its
commitment to lend money to the Defendant.
18. There are additional reasons growing out of the Ownership Agreement which
have caused Defendant to justifiably withhold future monthly installment
payments.
19. The Ownership Agreement requires Defendant to pay One Third (1/3) of all
common expenses necessary for the maintenance, repair and operation of the
property, namely the single tract which was the subject matter of the Agreement,
as well as its One Third (1/3) share of property taxes.
20. Since at least April 28, 2000, and possibly since 1994, Defendant has
unknowingly paid One Third (1/3) of the common expenses, plus One Third (1/3)
of the property taxes on the combined lots, one tract of which was not part of the
Installment Agreement, nor a part of the Ownership Agreement.
21. Pursuant to the Ownership Agreement, Robert G. Hartman, Jr., at his sole
expense, was to have a new roof installed on the main building.
22. It is believed and averred that Robert G. Hartman, Jr., did not have a new roof
installed, nor did anyone else install a new roof until May 2005.
23. Defendant has suffered damages due to water leaks in the roof and Plaintiff has
now billed Defendant Eleven Thousand Sixty-Eight Dollars and Fifty-Five Cents
($11,068.55) as its' share of the cost for a new roof which the Agreement required
Robert G. Hartman, Jr., to install at his sole expense.
24. Pursuant to Paragraphs 3 and 13 of the Ownership Agreement, any repair or
maintenance of property to exceed One Thousand Dollars ($1,000.00) is to be
voted on by the parties and subject to competitive bids.
25. The installment of the new roof in 2005 costs Thirty-Three Thousand Two
Hundred Eight Dollars and Ninety-Six Cents ($33,208.96), but the Defendant was
not consulted nor given the opportunity to vote on this expenditure.
26. In March 2003, a substantial storage building was erected on the property for the
sole benefit of Robert G. Hartman, Jr., which increased the property value and
increased Defendant's tax and cost of liability insurance on the property without
the consent of Defendant.
27. Defendant has acted promptly in the filing of this Petition to Open Judgment, has
alleged a meritorious defense to the judgment, and has presented sufficient
evidence to warrant a hearing on the issue of whether Defendant is in default.
28. The only protection available to Defendant pending a hearing on the merits of
Plaintiff's Confession of Judgment in Ejectment is for this court to order that
enforcement of the judgment be stayed until such time as a hearing is held in this
matter.
WHEREFORE, Defendant, HERSHEY-PHILBIN ASSOCIATES, INC., prays this
Honorable Court will issue a Rule upon Plaintiff to show why this Petition to Open Judgment
should not be granted and hereby requests a stay of any further proceedings, including
enforcement of the Judgment in Ejectment, until such time as a hearing has been held.
Respectfully submitted,
;_ e,;; ? ra4 4, t ?, ?-
R. Mark Thomas, Esquire,
Attorney No. 41301
101 South Market Street
Mechanicsburg, PA 17055
Telephone: 717-796-2100
VERIFICATION
I verify that the statements made in the foregoing document are hue and correct to the best
of my knowledge, information and belief I understand that false statements herein are made
subject to the penalties ofl 8 Pa. C. S. §4904, relating to unswom falsification to authorities.
Date:
VERIFICATION
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 false statements herein are made
subject to the penalties ofl 8 Pa. C. S. §4904, relating to unswom falsification to authorities.
Date: 1-2 -011
Elt bir ',A *V
?O3d?
SAIDIS, GUIDO,
SHUFF &
MASIAND
2109 No" Sued
cmP H01. PA
v
TENANTS IN COMMON OWNERSHIP AGREEMENT
AGREEMENT executed this a y ? day of 6 1
1994 between ROBERT G. HARTMAN, JR. and HERSHEY-PRILDIN
ASSOCIATES, IMc., hereinafter collectively referred to as
"owners," WITNESSETH:
1. Business and Interest - The parties hereto have entered
into an Installment Sales Agreement simultaneously with the
execution of this agreement in relation to the premises known and
numbered as 2101 Orchard Road, Camp Hill, Pennsylvania, as more
particularly described on Exhibit "A" to said Installment Sales
Agreement. The interest of the owners in the property, subject
to other provisions of this Agreement, shall be as follows:
Robert G. Hartman, Jr. - undivided two-thirds
Hershey-Philbin Associates, Inc. - undivided one-third
2. Exclusive Use - Robert G. Hartman, Jr. shall have the
right to an exclusive use of the first two floors of the premises
and Hershey-Philbin Associates, Inc. shall have the exclusive, use
of the third floor of the premises. Each owner, upon reasonable
notice, may inspect the premises of any other owner during
regular business hours for any legitimate purpose expressly or
impliedly created under this ownership Agreement or by virtue of
his ownership rights in the property. Each owner shall have the
right of emergency access, without notice, to the suite of every
Bom 485 PACE 657 .
i
SAIDIS, GUHO,
SHUFF &
MAM AND
2109 Mukq Suau
Cuy MR. PA
other owner in the event of threatened peril to the suite or to
the entire property or to any portion of the property accessible
through the suite. Emergency access shall not be utilized by any
owner unreasonably, but the threat of any peril covered by the
property insurance policy to be obtained on the property or of
any crime shall be sufficient grounds for such emergency access.
3. Maintenance. Repairs and Capital Expenses - Each
owner shall contribute his pro rata share, based on his ownership
interest, of any common expenses necessary for the maintenance,
repair and operation of the property, including but not limited
to common accounting and legal fees, utilities (other than those
separately metered), trash removal, landscaping, gardening, real
estate taxes, assessments, insurance (exclusive of contents and
trade fixtures), exterior maintenance, exterior walls mainte-
nance, exterior painting, roofing, parking lots and paving.
Payments shall be made to the manager, no later than the due date)
as specified in any request for payment, or, if none is speci-
fied, then no less than three business days before the manager is
required to make payment of any such expense to a creditor;
provided, however, that each owner shall be responsible for
interior maintenance of and janitorial service for his floor or
floors. Unless the parties agree to new financing, the responsi-I
2
BOOK 485 PACE G58
SAIDIS, GUIDO,
Snu" k
MASLAND
21W Ma&d SWd
c.w MI. PA
bility for the payment of the existing mortgage shall be with
Robert G. Hartman, Jr. Hartman shall provide proof of monthly
payment of said mortgage to Hershey-Philbi5e Associates, Inc.
Any expense for the repair or maintenance of the
property which is reasonably anticipated to exceed $1,000 shall,
upon the request of any owner, be awarded after receiving compet-
itive bids..
It is understood and agreed that Hartman contemplates
putting a new roof on the premises prior to the end of 1995 and
that expense shall be borne solely by Hartman. Twenty parking
spaces shall be allocated to Hershey-Philbin Associates; if
additional parking spaces are required by the township for the
first two floors, the cost of installation shall be borne solely
by Hartman.
4. Restrictions on Use - The property shall be used for
business or professional offices only and shall be in conformity
with the Lower Allen Township Zoning Code. Any expense incurred
in obtaining approval from the township or Commonwealth of
Pennsylvania for use or approvals relating only to the area
occupied by the respective owners shall be borne solely by the
applicable owner.
5. Manager - Robert G. Hartman, Jr. shall be manager of the
property and shall have the following responsibilities:
I ,
3
BOOK 485 PACE 659
A. To receive and deposit checks and other remittances
for the benefit of owners;
B. To make payment of all expenses necessary or
incidental to the maintenance, repair and operation of the
property;
C. To make application for any permits or approvals
necessary for operation and management of the property.
D. To maintain books and records of the operation of
the property, including accurate records of receipts and dis-
bursements;
E. To notify owners of the necessity for advancing
funds; and
SAIDIS, GUMO,
SNUFF k
MASLAND
2109 Merkel Area
Cmp 11111. PA
F. To secure contractors for and to supervise grass
and lawn care, snow removal, painting and other maintenance and
repair responsibilities which the owners are obligated to share.
6. Banking - All funds of the owners, with the exception
of the Installment Sales Agreement payments, shall be deposited
in a separate checking account or accounts as designated by
Robert G. Hartman, Jr. and withdrawals therefrom may be made upon
checks signed by him or his designee. 1
7. Books - Books of account shall be maintained at the
office of the manager, provided that each owner or his duly
authorized attorneys or accountants shall at all times have
access thereto. The books shall be closed and balanced at the
end of each such calendar year. If requested by any owner, a
certified audit shall be made As of the end of each taxable year,
and the expense of any such audit shall be shared pro rata among
the owners.
4
BOOK 485 PACE 660
S. Voluntary sale - The property may be sold at any time by
agreement of all owners, in which event, they shall proceed with
reasonable promptness to sell all personal and real property
owned in common by the parties and relating to the property in
question. The proceeds from any such sale shall be used and dis-
tributed to pay or provide for the payment of all liabilities and
liquidating expenses and obligations with respect to the acquisi-
tion, operation, maintenance and sale of the property, and
thereafter, any excess shall be distributed pro rata in accor-
dance with ownership interests. The existing mortgage of Robert
G. Hartman, Jr. to the Pennsylvania State Bank shall be the sole
responsibility of Hartman and not of the tenancy in common.
9. Default - The failure by any owner to make any payment
due hereunder, as the same shall become due, following written
notice, but within the time provided hereunder, shall automati-
cally constitute a default. The failure of any owner to perform
any other obligation of such owner hereunder, within a period of
30 days after written notice, shall also constitute a default.
In the event of failure to make a payment, the defaulting owner
shall have a reasonable time, not exceeding 30 days from the due
SAIDIS,GUIDU, date, within which to make the payment, but shall also pay to the
SIW" k
MASLAND non-defaulting owner, a sum equal to 158 of the payment in
zlosM?
GmP H Hill111,, PA default or $100, whichever is greater, together with reasonable
attorney's fees and costs actually incurred in order to cure such
default.
5
BOOK 485 PAGE 661
10. Remedies - In the event of default and failure to cure,
SAMIS, GUIDO.
SDUFF &
MASLAND
2109 MA&d Slurp
Camp Hm. PA
as provided herein, or in the event any owner should commit three
events of default within any two year period, regardless of
whether the three events of default are actually cured, the
remaining owner shall have the option to exercise the following
remedies:
A. To purchase the interest of the defaulting owner at
a price equal to 90% of the value of the defaulting owner's
ownership interest, said value to be determined by an MAI
appraisal of the real property and an appraisal of any personal
property, less such owner's pro rata share of all liabilities
(apportioned pro rata to the settlement date) of the owners with
respect to the property, settlement to occur within 30 days from
receipt of the last required appraisal. In the event this remedy
is elected, the remaining owners shall be entitled to purchase
the share of the defaulting owner pro rata in accordance with the
ownership interest of all owners desiring to acquire the owner-
ship interest of the defaulting owner. The MAI appraiser and any
other appraisers required for assets hereunder shall be selected
by the bank in which the owners' checking account is maintained
or, if no checking account is maintained, by the bank holding
a mortgage on the premises. The cost of any appraisals or other
fees to be paid, pursuant to this provision, shall be paid by the
defaulting owner, including reasonable attorney's fees and
costs, except that realty transfer tax, if any, shall be divided
equally between the defaulting owner and the purchasing owner;
B. To specific performance of this Agreement;
C. To reasonable attorney's fees actually incurred by
the non-defaulting owner and court costs; and
equity.
D. To any other remedies available at law or in
11. Restriction on Sale - Neither the ownership interest of
any owner nor any portion thereof, or interest therein, shall be
6
BOOK 485 PAGE G62
sold, assigned, given, transferred, passed by inheritance or
devise, or otherwise disposed of except in accordance with the
following provisions of this Agreement. Any disposition of an
ownership interest contrary to the provisions hereof shall be
void.
A. gpt?on o Yurchase_ - Hartman shall have the right
to transfer his interest to his widow, his children or to Robert
G. Hartman & Associates, Inc., and Hershey-Philbin Associates,
Inc. shall have the right to transfer its interest to Robert J.
Philbin, Scott W. Hershey, their respective spouses and children,
but in the event that any owner desires to sell, assign, transfer
or make any disposition of ownership, other than as indicated,
then he or their personal representative shall first attempt to
negotiate a sale with the other owner; if such a sale is not
negotiated, then he or his personal representative shall give at
least 15 days' notice in writing by registered or certified mail
to the other owner setting forth the interest that he desires to
sell or dispose of and the material terms of the proposed sale.
The other owner shall be entitled to purchase the interest beingg
offered upon the terms set forth in the notice, said option to be
exercised, if at all, within 30 days.
B. C1os na - If the other owner elects to purchase the
ownership interest offered, a closing shall be held at the
offices of Saidis, Guido, Shuff & Masland, or at such other place
as the parties shall agree on the 60th business day after the
option to purchase is exercised. The purchase price and method
of payment shall be set forth in the notice of intention to sell.
C. Sale to Third Parties - If the other owner does not
elect to purchase the ownership interest offered for sale, then',
the offering owner shall be authorized to sell the interest
offered for sale to any party, provided that any such sale to a,
SAIDIS,GUmo, third party must be upon the same material terms and conditions'.
SHUFF& as previously offered to the other owner pursuant to this Agreer
MASLAND went. If the interest is not sold within a year of notification
2109MarkdSUmi to the nonselling owner, his option to sell to third parties
under be this subject Agreement. purchesle
GmPHi11.PA shall expire
granted and a the f other owner will
option
7
I
ttioolc 485 encE 663
.f---
12. Insurance - In addition to the liability and fire
insurance obtained by the manager for the entire property, each
owner shall procure adequate liability and fire insurance to
protect persons and the property in the suites which they occupy
or own.
SAIDIS, GUIDO,
SNUFF &
MASLAND
2109 JAI" Shoo
Cwp Hill, PA
13. Voting - In the determination of matters which would
require the consent of both owners, or all owners in the event
that other parties become the owner or owners of interests in the
premises, voting shall be in accordance with the pro rate inter-
est which the parties own in the premises; i.e. at the present
time Robert G. Hartman, Jr. shall have two votes and Hershey-
Philbin Associates shall have one vote. Voting matters shall
include but not be limited to matters involving ownership of the
units, insolvency, bankruptcy, receivership, alterations, repairs
and all other decision-making rights hereunder.
14. Subleasing; Sale of Adjacent Lot - Either party shall
have the right to lease or sublet the premises or any part
thereof without the consent of the other party; provided, that
the lease or sublease of the property shall not relieve either
party of the obligations incurred herein. Nothing herein shall
be construed as preventing Hartman from selling, without first
offering to the other owner or owners, a separate tract of ground
8
DOOK 485 PACE 664
appurtenant to the premises described on Exhibit "A" but which
has been intentionally excluded from the installment Sales
Agreement into which this Agreement is incorporated.
SAIDIS, GUIDO,
SHUFF &
MAST AND
zips Mirka SIMW
Case lim, PA
15. Interpretation - This Agreement shall be interpreted in
accordance with the laws of the Commonwealth of Pennsylvania.
Paragraph headings are for convenience only.
16. Benefit - This Agreement shall be binding upon and
shall operate for the benefit of the parties and their respective
heirs, successors, assigns and legal representatives. This
Agreement shall also be binding upon any transferee who has
received any ownership interest in accordance with the provisions
of Paragraph 11 hereof and the heirs, successors, assigns and
legal representatives of such transferee, and upon any person to
whom any of the shares are transferred in violation of the
provisions of this Agreement and his heirs, successors, assigns
or legal representatives.
17. Copies/Recording - A copy of this Agreement, any
amendments, modifications and addenda thereto shall be kept at
the principal office of the manager for inspection by owners and
prospective purchasers of the interests of the owners upon
written request of any owner. The Agreement may also be recorded
by any party hereto in the Cumberland County Recorder of Deeds
Office. i
9
- 11 BOOx 485 PACE 665
is. Time of the Essence - Time shall be of the essence to
all terms and conditions of this Agreement.
sAms. GUIDO,
SHUFF k
MASLAND
2109 Mullet seed
camp liul. PA
19. Subordination - This Agreement is subordinate to a
certain mortgage of Robert G. Hartman, Jr., et ux, to The Penn-
sylvania State Hank dated April 21, 1994 in the principal amount
of $238,400.
20. Notice - All notices hereunder shall be in writing.
Any required notice shall be deemed given when deposited in the
United States Mail, postage prepaid, certified, return receipt
requested, or when delivered to the business office of a party
with a written receipt from the person in charge being obtained.
21. Entire Agreement - This Agreement incorporates all
understandings of the parties with respect to its subject matter,
and there are no representations, understandings or agreements
not incorporated herein.
IN WITNESS WHEREOF, the parties hereto, intending to be
legally bound hereby, have set their hands and seals on the day
and year first above written.
WITNESS:
(SEAL)
Robert G.-Hartman , Jr.
10
BOOK 483 PACE 666
SAIDIS, GUIDO,
SNUFF do
NIASLAND
2109 Mm" Slmu
Cu" MU, PA
ATTEST: H RSHE2-PHILBIN ASSOCIATES, INC.
By:
President
Secretar
11
Borne 485 ME 697
EXHIBIT "A"
SAMIS. GU MO.
SHUFF &
MASLAND
2100 Mrta suw
CMP 11M. PA
ALL that certain piece or parcel of land situate in Lower Allen
Township, Cumberland County, Pennsylvania, more particularly
bounded and described as follows, to wit:
BEGINNING at a point in the middle of the township road leading
from Carlisle Road to Spring Lake Colony, said point being 30.11
feet west of the center line of Carlisle Road; thence by other
lands of Hartman, South 05 degrees 17 minutes West, 210.64 feet
to an iron pin; thence by lands now or formerly of Garver, South
83 degrees 16 minutes West, 200.00 feet to an iron pin; thence
still by other lands now or formerly of Garver, North 15 degrees
52 minutes West, 215.27 feet to a point in the center of the
aforesaid township road; thence by the middle of said road, north
84 degrees 39 minutes East, 278.02 feet to the point of
BEGINNING.
HAVING thereon erected a three story office building known and
numbered as 2101 Orchard Road, Camp Hill, Pennsylvania.
.'• ;• onnsylvanie
5S
of Cuinberlsnd
+. in tha office for the recording of Dcc:'n
ti ..rl for Cumberlend County/,P`e.,
Gook Vol. =Page
tlf
AGO n " n _ , my hand and seal of office f
..:.la, PAJtI o? of c
?
?`,
-•.
±
r' Recorder
it G.'N t :i?.l r'
x
t• rf 7 '.
. .• •.
t
tlt%%% LANE'
13
eoox 48.5 PAcE GA
DdrfeAdgoit's
Exhibit a8~
EXTENSION AGR_EEMk:N'!.
TINS AGREEWNT made this _ r1-rr oF_CJ '
and between Robert G. Hartman, Jr., Cumberiand County, Pennsylvania (hereinafter
by
referred to as "Seller"),
and;
Hershey -Philbin Associates, Inc_ now of Cumberland ('oanty, pennsylvarua (hereinafter
referred to as "Buyer,),
WIiTNESSETH:
'MEREAS, Seller and Buyer erntered into two separate agreements on October 24,
1994, known as "Installment Agreement of Sale" au(, "Tr_nants Tn Common Ownership
Agreement"; and
WHEREAS, the said agreements provided for the < nsier of a one-third interest in the
premises known and numbered as 2.10I Orcivi rd ROTI, Camp fill[, Pennsylvania; and
WHEREAS, said agreements provided for the payn-•? ?r rln.- +r 1I purchase T
rice on or
before October 24, 1999; and
WHEREAS, the parties want to extend the agreem::ns_s ",,.t;-I ;,erain tarrns and conditions.
WITNESSETH, in consideration of the mutnr.1 :and of reetr_ents hereinafter
contained, Seller and Buyer agree as follows:
1. The Tenant, in Common Ownership ee:r:ent executed by tl?ie parties
hereto, under date of October 4, r 9Q., i :cainue in full force and
effect.
2- The Installment AV-eement of Sale datc.1 Gctobcr 24, 1994 is extended
until December 31, 2004 with the follo?: ing r ndifications:
a. Seller shall have the right to sever Buyer`s interest as a unit of a
condominium structure pursuant to paragraph 18 of the Agreement
at any tune during the terrnt of this extension provided that he
provides Buyer with at least 90 days notice to pay off the balance
of the purchase price.
b. Seller shall, have the right to sub-divide.: a tract of ground described
on Exhibit "A", attached hereto, from the tract which is the subject
of this Agreerrient.
M - - HO ,13:23 0
? I
?i
OWN BANK 5 f ONEHEOI,?
!Lp%?T17 ?J9 Oql?C,
P ?O3i70R
c. . The parties acknowledge that the balance due under the terms of
the Installment Agreement of Sale as of this date is
$ 9Q,85x.4k and that the payments pursuant to this extension
shall continue to be in the amount of$1,234.SQ..
3. Buyer has expressed an interest in the possibility of expanding the third
floor of the building by the construction of an addition :o the building's
south side. Seller agrees to ccriside::=h a proposal when it is presented
but reserves the right to impose, inter alia, the following conditions:
a. the addition shall be at the sole cost of the buyer.
b. Seller may require the severance of buyers interest as a
condominium unit prior to th;- constrmctioc..
c. The addition; shall not threaten tht. integuity of the remaining
building or interfere with Seil?•-'ti Li!:(,- of the building.
d. Mairitenance costs, insurance, Laxes and repairs for the addition
shall be the responsibility of the buyer.
IN WITNESS WIFEI2EOF, the parties hereto have ,er rht.ir hands and seals on the day
and year first above written.
ATTEST:
Secre
?' oberr G. Hartman, Jr. _
ffFRSHEY-P Bl`N ASSOCIATES, INC_
President
r'n
D& -fast 9(4*4t
Lrxb,lpit ' G ~
i
3V mat ? -~,
yc?3-?3-oSK9 •l?
ROa_ERT P. 71EGLER
RCCORDER Of DEEDS
l;UMSERLAND COUNTI-PA
THIS DEED. z7 ?' 3 zi
fl-
Made the / Cr day of
BETWEEN ROBERT G. HARTMAN, JR., of New Cumberland. Cumberland County,
Pennsylvania,
herein designated as the Creator(s),
AND JANET w. HARTMAN, of New Cumberland, Cumberland County, Pennsylvania,
herein designated as the Graates(s):
WITNESSETH, that the Grantors, for and in conWeradon of -------ONE 151.001 DOLLAR -------
------------- lawfid money of the United States of America, to the Grantors in hand well and truly paid
by the Grantees, at or before the sealing and delivery of these present& the receipt whereof is hereby
acknowledged and the Grantors being therewith 14UY sa ISAId do by them presents grant, bargain. sell and
convey into the Grantees forever.
TRACT NO, 1:
ALL T.7AT CERTAIN 2/3 TENANTS IN COMMON INTEREST in that tract or parcel
of land and premises, situate, lying and being in Lower Allen Township,
Cumberland County, Pennsylvania, more particularly described as follows, to
wit:
BEGINNING at a point in the middle of the township road leading from
Carlisle Road to Spring Lake Colony, said point being 30.11 feet west of
the center line of Carlisle Road; thence by Tract No. 2 hereinafter
described, South 05 degrees 17 minutes most, 210.64 feat to an iron pin;
thence by lands now or formerly of Garver. South 83 degrees 16 minutes
West, 200.00 feet to an iron pint thence, still by other lands now or
formerly of Garver, North 15 degrees 52 minutes Hest, 215.27 feet to a
point in the center of the aforesaid township road; thence by the middle of
said road, North, 84 degrees 39 minutes East, 278.02 feet to the point of
BEGINNING.
HAVING thereon erected a building known as `Park Place, Office Building and
known and numbered as 2101 Orchard Road, Camp Hill, Pennsylvania.
THIS TRANSFER IS WHOLLY MMIPT
FROM PEMSYLVANIA REALTY TRANSFER TAX Y
PURSUANT TO 51102-C.3(63
PENNSYLVANIA. REALTY TRANSFER TAY
ACT AND REGULATIONS
TRANSFER 13ETWE N HUSBAND AND WIFE
t 146 4ZZ 684
001
Grantor sold a one-third f1/3T tenants in common interest, under
installment Sale Agreement-dated October 24, 1994, to Hershey-Philbin
Associates, Inc. in which it provided that Hershey-Philbin would have the
exclusive use of the third floor of the foregoing premises.
TRACT NO. 2:
ALL THAT CERTAIN tract of land situate, lying and being in Lower Allen
Township, Cumberland County, Pennsylvania, more particularly bounded and
described as follows, to wit:
BEGINNING at a point in the center line of the township road known as
orchard Road at the easterly line of Tract No. 1, hersinbefore dsscribed;
thence by said center line. North 84 degrees 39 minutes East, 30.11 feet to
by the
minutes Highway East, 10.30 feet 21022; thence
point in the . South center 37 degrees 36 the- State
to a point in
latter line
said center line; thence still along said center line, North aS degrees 02 Ray
by 6 the feet to a oint on line of lands now or formly South 24 degrees 06 minutes East, 141.16ffeet
minutes hEast, ence B9.61
to a stake; thence by lands now or formerly of West Shore Driving Range,
South 24 degrees 06 minutes East, 66.94 feet to a stake; thence by the
same, South 83 degrees 21 minutes West, 229.33 feet to a stake at the
easterly line of Tract No. 1, aforesaid; thence by the latter, North 05
degrees 17 minutes East, 210.64 feet to the place of BEGniffiNG. .
BEING the same premises which. Dauphin Deposit Bank and Trust Company. by
its deed dated April 19, 1994 and recorded in the office of the Recorder of
Deeds in and for Cumberland County, Pennsylvania in Record Book 104, Page
361, granted and conveyed unto Robert G. Hartman, Jr., Grantor herein.
TOGETHER with all and singular the b+didings, improvements. ways waods, water; waterrourm rights,
liberties, privileges, herediwmems and appurtenances to the same belonging or in anywise appertaining: mid
the reversion and reversions, remainder and remaindem ratu, issues and profiu thwoof, and of ever} parr
and parcel rherwf,• AND also all de estate. right, title, interest, use possession, property: claim and
demand whauoever of de Granwrr both in law and in equity. of in and to the premises herein described
and everp part and panel thereof with the appurimwnces TO HAVE AND TO HOLD all mid
singular the premises herein described wgether with the hereditaments and appurtenances imto the Grantees
and to Gra tees' proper use and benefli forever.
aoai 146 PAGE 685
AND the Gnotam for themselves, their heirs, executors and administrators, do covenant, promise and
agree, to and with die said Grantee heirs and assigns, by these presents, that the said Gem tor(jA
heirs, all and singular the heredit4ments and pnmiset hereby granted or asendased and intended so to be
with the appsomwe; nmto the said Grantee, heirs and arsigns, against than the said Grantor(s) and
their heirs, and against all and every person and persons whomsoever /a*fuUy claiming or to claim the
same or any part thereof, by, from or under hbrt, her, than or any of Hon, shall and will, SUBJECT at
aforesaid FOREVER SPECIALLY WARRANT AND DEFEND.
In all references herein to any parties, persons, entides or corporations, the use of any particular
gender or the plural or singular number is inanded to lachtde the appropriate gender or number as the test
of the within insmonent may reipdre.
Wherever in this inatrument any party shall be designated or referred to by name or general
reference, such designation is intended to and shall have the same effect as (f the words heirs, executors,
administrators, personal or legal repnsentadves, successors and assigns" had been inserted after each and
every stuh designation.
IN W17NESS WHEREOF, the Grantors have hereunto of their hands and seals. or if a corporation,
it has caned these presents to be signed by its proper corporate officers and its corporate seal to be af)'tud
hereto, the day and year first above written.
SIGNED, SEALED and DELIVERED
in the presence of
or ATTESTED by-
.d ..,, ,dthG
' e?
Robert G. Hartman, Jr. 017
COMMONWEALTH OF PENNSYLVANIA, COUNTTY?OF C tirnbeH* d -. 95
BE IT REMEMBERED, that on 1 nbe,,? i?9Jp before me the subscriber personally
appeared Rom= G. HmTNAN, JR., known to me (or satisfactorily proven) to be tine person whose
name is subscribed to within deed and acknowledged that he wonted the same for the purpose therein
contained.
WITNESS my hand and seal the day and year aforesaid
( Ld rL.? L
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oTARY PUBLIC
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N't 146 PACE
07/14/2008 3:22:33 PM CUMBERLAND COUNTY Inst.# 199627971 - Page 3 of 4
C0j%VONWEALTH OF PENNSYLVANIA, COUNTY OF : $s.
BE IT REMEMBERED, that on 19 , before me the subscriber personally
appeared who acizoA*ed self to be the
of , a Cotporotion, and that being aathork d to do so as such corporate officer executed
the foregoing instrument for the purposes therela contained on behalf of the corporsdo 1.
WITNESS my hand and seal the day and year aforesaid
NOTARY PUBLIC
My Commission Expires:
(SEAL)
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Fw- 146 PACE 687
'07/14/2008 3:22:33 PM CUMBERLAND COUNTY Inst.# 199627971 - Page 4 of 4
CERTIFICATE OF SERVICE
I, R. Mark Thomas, Esquire, hereby certify that I have served a true and correct copy of
the within document on the following person by depositing a true and correct copy of the same in
the U.S. Mail at Mechanicsburg, Pennsylvania, First Class Postage pre-paid, addressed to:
Samuel L. Andes, Esquire
P. O. Box 168
Lemoyne, PA 17043
Date: February 6, 2009
R. Mark Thomas, Esq.
C`)
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FEB 0 4 2CkAj
9 Is
JANET W. HARTMAN, IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V.
CIVIL ACTION -LAW
HERSHEY-PHILBIN ASSOCIATES, INC.,:
: NO. 08-7503
Defendant : CIVIL TERM
RULE
AND NOW, this 1 1'?hday of February, 2009, upon consideration of the foregoing Motion
to Strike and/or Open the Judgment of Confession previously filed inlthis case, a Rule is issued
on the above Plaintiff to show cause why the judgment entered in the above case should not be
stricken or opened.
tti
Rule returnable the C day of M*.r?? , 2009. Pending a',hearing on this matter all
proceedings are hereby stayed.
By the Court,
J.
cc: Samuel L. Andes, Esquire, P. O. Box 168, Lemoyne, PA 170143
Counsel for Plaintiff
R. Mark Thomas, 101 South Market Street, Mechanicsburg, PIA 17055
Counsel for Defendant
8?: I I Nil z 1 833 66OZ
Ott viow??. ujd 3?u jo
KL-Plo-cm
SHERIFF'S RETURN - REGULAR
CASE NO: 2008-07503 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
HARTMAN JANET W
VS
HERSHEY-PHILBIN ASSOCIATES INC
KENNETH E GOSSERT Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT - EJECTMENT was served upon
HERSHEY-PHILBIN ASSOCIATES INC the
DEFENDANT , at 0015:00 HOURS, on the 10th day of February-, 2009
at 2101 ORCHARD ROAD
CAMP HILL, PA 17011 by handing to
LINDA RHINEHART
VICE PRESIDENT
a true and attested copy of COMPLAINT - EJECTMENT together with
NOTICE OF JUDGEMENT & EXECUTION,
RULE 2973.2
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs: So Answers:
Docketing 18.00
Service 12.60
Affidavit . 00 Surcharge 10.00 R. Thomas Kline
Postage .42
41.02 02/11/2009
SAMUEL L ANDES
Sworn and Subscibed to
before me this
By:
day
of A. D.
f7 ?'
?.
s
t?~ ? ? ?
?
t...,. _
?? ? ?
JANET W. HARTMAN,
Plaintiff
vs.
HERSHEY-PHILBIN ASSOCIATES,
INC.,
Defendant
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 08-7503 Civil Term
PLAINTIFF'S ANSWER TO DEFENDANT'S MOTION TO STRIKE AND/OR OPEN
JUDGMENT OF EJECTMENT BY CONFESSION
AND NOW comes the above-named Plaintiff, by her attorney, and makes the following
Answer to Defendant's Motion to Strike and/or Open Judgment of Ejectment by Confession:
1. Admitted in part and denied in part. It is admitted that Plaintiff's predecessor-in-
interest, Robert G. Hartman, Jr. (hereinafter referred to as "Robert") and Defendant entered into
a "Tenants in Common Ownership Agreement" and that a copy of that Agreement is attached as
Exhibit A to Defendant's Motion. It is denied, however, that the said Agreement was made part
of or incorporated into the Installment Sales Agreement on which Plaintiff has now confessed
judgment. To the contrary, each of those agreements was intended to, and in fact does, operate
separately from the other and each of them contains a clause providing as much.
2. Admitted in part and denied in part. It is admitted that Plaintiff was not a party to
the Installment Sales Agreement which is the basis of this action. However, it is denied that she
is not now the owner of the property and averred, to the contrary, that she acquired the remaining
one third interest in the property by an Executor's Deed dated 6 July 2009, a copy of which is
attached hereto and marked as EXHIBIT D. B y way of further answer, Plaintiff states that, by
an Assignment of Installment Agreement of Sale, also dated 6 July 2009, Plaintiff acquired the
interest of Robert in the Installment Agreement of Sale between Robert and Defendant. A copy
of that Assignment is attached hereto and marked as EXHIBIT E. Both the Executor's Deed
(EXHIBIT D) and the Assignment (EXHIBIT E) were recorded in the Recorder of Deeds Office
in and for Cumberland County on 8 July 2009.
3. Plaintiff admits that there was a misstatement in her original petition but states that
the record has now been corrected by her obtaining title to the remaining one third interest in the
real estate involved in this matter and the assignment to her of Robert's interest in the
Installment Agreement of Sale.
4. Denied. Please see EXHIBIT E attached hereto and the averments set forth in
Paragraph 2 and 3 above.
5. Admitted.
6. Admitted. By way of further answer, Plaintiff states that there was no reason for
her to be identified as a party to the Extension Agreement wherefore such Extension Agreement
to indicate that she had acquired an interest in the property because the Installment Agreement of
Sale had not then been assigned to Plaintiff and she did not, at that time, owned the one third
interest retained by Robert to convey to Defendant if and when Defendant successfully
completed its obligations under the Installment Agreement of Sale.
7. Denied for the reasons set forth in the foregoing paragraphs of this Answer. By
way of further answer, Plaintiff states that she was the co-executrix of the Estate of Robert and a
beneficiary of his Will as a result of which she was charged with the responsibility to enforce the
agreement and also was the party at interest in the enforcement of the Installment Agreement for
Sale.
8. Denied for the reasons set forth in the foregoing paragraphs of this answer.
9. It is admitted that Defendant paid installments which total more than $175,000.00.
It is also stated, however, that Defendant has made no payment whatsoever on the agreement for
more than one year and that, as a result of such default by Defendant, Plaintiff is entitled to
recover possession and ownership of the land in the action she has filed.
10. Denied. Plaintiff incorporates herein by reference, the averments set out in the
remaining portions of this answer.
WHEREFORE, Plaintiff prays this court to deny Defendant's Motion to Strike
Plaintiff's Judgment.
PETITION TO OPEN JUDGMENT
11. The averments set forth in Paragraphs 1 through 10 of Plaintiff's Answer, as set
out above, are incorporated herein by reference.
12. Denied. Defendant has failed to make various payments due and owing to
Plaintiff under the terms of the Installment Agreement of Sale, all are set forth in Plaintiff's
Complaint. Further, Defendant has made no payments on the Agreement, and Defendant's
obligations created by that Agreement, since Plaintiff s Complaint was filed in 2008. Plaintiff
incorporates herein, by reference, the averments set out in her Complaint.
13. Denied. Plaintiff is without knowledge or information which is sufficient to
determine the truth and accuracy of the averments in this Paragraph because that information is
within the exclusive control of Defendant, and so Plaintiff denies those averments. By way of
further answer, Plaintiff states that the monies spent by Defendant to make improvements to the
property are not relevant to this action in which Plaintiff seeks to enforce its clear right under the
Installment Agreement of Sale.
14. Denied as stated. Plaintiff states that the loan commitment issued by Orrstown
Bank was conditioned upon Defendant being able to secure the loan with a mortgage against a
condominium interest in the subject property. Defendant did not own, and has never owned, a
condominium interest in the property and, therefore, Defendant could not meet the conditions of
the loan commitment.
15. Plaintiff denies that Plaintiff could not deliver legal title. Specifically:
a. Plaintiff admits that a sub-division plan was approved which
incorporated additional land into the property which is the subject of this litigation.
Such sub-division plan, however, did not prevent Plaintiff from conveying good
title to the property to Defendant.
b. Admitted in part and denied in part. It may well be that Plaintiff is not
able to re-subdivide the land in question into two separate lots, but it is denied that
Plaintiff could not convey good title to Defendant. In fact, Plaintiff was prepared
to convey title to the entire, enlarged, property to Defendant to satisfy Plaintiff's
obligations under the Installment Agreement of Sale if Defendant had performed
and satisfied his obligations under that Agreement.
c. Denied for the reasons set forth in Sub-Paragraphs a and b hereof.
16. Defendant was not able to obtain the loan it sought from Orrstown Bank because
Defendant had improperly advised Orrstown Bank that Defendant owned a one third interest in
the building in the form of a condominium unit, which information was not accurate and which
was known, or should have been known to Defendant, not to be accurate. By way of further
answer, Plaintiff denies that Robert G. Hartman, Jr. was ever obligated to convert the third floor
of the building into a condominium.
17. Plaintiff admits that Orrstown Bank withdrew its loan commitment to Defendant
but states that the loan commitment was withdrawn because Defendant could not provide title to
a condominium unit as Defendant had represented to the bank that it could.
18. Denied. Plaintiff incorporates herein by reference the averments made in the
following paragraphs of her Answer.
19. Admitted.
20. Admitted. By way of further answer, however, Plaintiff states that any additional
expenses paid by Defendant were insignificant and are more than offset by operating expenses,
including real estate taxes, which Defendant owed and has failed to pay. Moreover, any
disputes between Plaintiff and Defendant regarding the enforcement of, or rights arising from,
the Ownership Agreement, are not related to Plaintiff's Petition for Confession of Judgment in
Ejectment and did not constitute a defense to Plaintiff's claim that Defendant has breached the
Installment of Agreement for Sale.
21. Admitted.
22. Denied. Robert did install a new roof on the property in full satisfaction of his
obligation set out in the Ownership Agreement. By way of further answer, Plaintiff
incorporates herein, by reference, the averments set out in Paragraph 20 above.
23. Plaintiff denies that Defendant has suffered damages due to water leaks because
she has inadequate information to form a belief as to the truth and accuracy of those averments
and so she denies the same. She admits that Hartman & Associates, Inc. which advanced the
money to replace the roof on the property, has sought payment from Defendant for its one third
share of the cost of replacing the roof. Plaintiff states, however, that disputes arising out of the
Ownership Agreement are not related to claims arising out of the Installment Agreement for Sale
and do not constitute a defense to Plaintiff's action here.
24. Admitted.
25. Denied. Representatives of Hartman & Associates, Inc. consulted with
representatives of Defendant before the roof was replaced and made the cost known. Those
representatives acquired proposals or bids from multiple roofing contractors to find the best and
most efficient method of replacing the roof. Plaintiff incorporates herein, by reference, the
averments set out in Paragraph 23 hereof.
26. Denied as stated. It is admitted that a storage building was erected on the real
estate added to the subject property by the re-subdivision plan. It is denied that the value of that
building was significant or that the addition of the real estate and the construction of the building
added significantly to the taxes, insurance, or other expenses for the property. Plaintiff
incorporates herein by reference the averments set out in Paragraph 23 hereof.
27. Denied. Defendant's Motion was filed more than a month after Plaintiff's
complaint. Defendant has failed to a meritorious defense. To the contrary, Defendant has not
explained or justified in any way its failure to make payments pursuant to the Installment
Agreement of Sale. Defendant's dispute, or alleged disputes, arising out of the ownership
agreement do not constitute a meritorious defense to Plaintiff's Complaint in which she
complained that Defendant has not made the payments due under the Installment Agreement of
Sale. Defendant has not presented sufficient evidence to warrant a hearing on Plaintiff's claim.
28. Denied. If Defendant believes it is aggrieved by disputes arising out of the
Ownership Agreement, Defendant's remedy is to bring an action to enforce its rights under that
Agreement. Defendant here seeks to introduce, in the form of a counter claim, arising out of an
entirely separate document, claims against the Plaintiff which it has no right to bring as a
defense to Plaintiff's action in ejectment.
WHEREFORE, Plaintiff moves this court to deny Defendant's Motion, and to confirm
Plaintiff's Judgment in Ejectment so that Plaintiff may proceed to enforce her rights under the
Installment Agreement of Sale and in accordance with the law.
Samuel L. Andes
Attorney for Plaintiff
Supreme Court ID# 17225
525 North 12'h Street
P.O. Box 168
Lemoyne, Pa 17043
(717) 761-5361
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 (unworn
falsification to authorities).
Date: z'l JIU I"I Z000t ?/ ?-.
NET W. HARTMAN
TAX PARCEL # 1 3 "'Z3 - r ? 4c!
EXECUTOR'S DEED
THIS DEED is made this 6 day of Z LAAj , 2009, by and between:
JANET W. HARTMAN and DANIEL J. HARTMAN, Co-Executrix and Co-Executor of the Estate of Robert G.
Hartman, Jr., deceased, late of Cumberland County, Pennsylvania, GRANTOR;
- and -
JANET W. HARTMAN, single woman, of 605 Allen Street, New Cumberland, Pennsylvania, hereinafter
referred to individually or collectively, as the case may be, as GRANTEE.
WHEREAS, the said Robert G. Hartman, Jr., deceased, was seized in fee of certain real estate together
with the improvements thereon erected, known as 2101 Orchard Road, Camp Hill, Lower Allen Township,
Cumberland County, Pennsylvania, hereinafter described; and
WHEREAS, the said Robert G. Hartman, Jr. died on 9 November 2003 leaving a Last Will and Testament
dated 1 August 1996 which was approved and registered at the Office of the Register of Wills in and for
Cumberland County, Pennsylvania, wherein JANET W. HARTMAN and DANIEL J. HARTMAN were appointed Co-
Executrix and Co-Executor; and
WHEREAS, a Petition for the Grant of Letters Testamentary was duly filed by JANET W. HARTMAN and
DANIEL J. HARTMAN by which Letters Testamentary were issued on 18 December 2003; and
WHEREAS, pursuant to the provisions of the Probate Estates and Fiduciaries Code, 20 Pa. C.S. Section
3351, the Executor is authorized to sell real estate of the decedent at any public or private sale.
WITNESSETH, that in consideration of One ($1.00) Dollar, in hand paid by GRANTEE to GRANTOR, the
receipt whereof is hereby acknowledged, the GRANTOR does hereby grant, bargain, and convey to the said
GRANTEE, grantee's heirs and assigns:
ALL THAT CERT-AIN-1/3-T-ENANT-S-IN-COMMON INTEREST in that tract or parcel of land
and premises, situate, lying and being in Lower Allen Township, Cumberland County,
Pennsylvania, more particularly described as follows, to wit:
BEGINNING at a point in the middle of the township road leading from Carlisle Road to
Spring Lake Colony, said point being 30.11 feet west of the center line of Carlisle Road; thence by
Tract No. 2 hereinafter described, South 05 degrees 17 minutes West, 210.64 feet to an iron pin;
thence by lands now or formerly of Garver, South 83 degrees 16 minutes West, 200.00 feet to an
iron pin; thence, still by other lands now or formerly of Garver, North 15 degrees 52 minutes
West, 215.27 feet to a point in the center of the aforesaid township road; thence by the middle
of said road, North 84 degrees 39 minutes East, 278.02 feet to the point of BEGINNING.
HAVING thereon erected a building known as "Park Place" Office Building and known and
numbered as 2101 Orchard Road, Camp Hill, Pennsylvania.
UNDER AND SUBJECT to all rights, restrictions, easements and rights-of-way of prior
record.
BEING a portion of the same premises which Dauphin Deposit Bank and Trust Company,
by its deed dated 19 April 1994 and recorded in the Recorder of Deeds Office in and for
Cumberland County, Pennsylvania, in Deed Book 104 at Page 367, granted and conveyed unto
Robert G. Hartman, Jr. Thereafter, by a deed dated 19 September 1996 and recorded in the
Recorder of Deeds Office in and for Cumberland County, Pennsylvania, in Deed Book 146 at Page
684, the said Robert G. Hartman, Jr., conveyed a two-thirds interest in that property to Janet
W. Hartman, the grantee herein. This deed is given to convey the balance of that property to the
grantee, Janet W. Hartman.
TOGETHER with all and singular the buildings, improvements, ways, streets, alleys,
passages, waters, water-courses, rights, liberties, privileges, hereditaments and appurtenances
whatsoever, thereunto belonging or in any wise appertaining and the reversions and remainders,
rents, issues and profits thereof, and all the estate, right, title, interest, property, claim and
demand whatsoever of her, the said decedent, at and immediately before the time of her
decease, in law, equity, or otherwise howsoever, of, in, to or out of the same.
TO HAVE AND TO HOLD the said lot or piece of ground above described, with the
buildings and improvements thereon erected, hereditaments and premises hereby granted or
mentioned, and intended so to be, with the appurtenances, unto the said Grantee, Grantee's
heirs and assigns, to and for the only proper use and behoof of the said Grantee, Grantee's heirs
and assigns, forever.
IN WITNESS WHEREOF, the said Grantor has hereunto set their hands and seals the day and year first
above written.
(SEAL).
ss ariet W. Hartman
Co-Executrix of the Estate of Robert G. Hartman, Jr.
(SEAL)
ss aniel a an
Co-Execut of the Estate of Robert G. Hartman, Jr.
I hereby certify that the precise address of the grantee herein is
605 Allen Street
New Cumberland, PA 17070
ey Qrr ee
COMMONWEALTH OF PENNSYLVANIA )
( SS..
COUNTY OF CUMBERLAND )
On this, the 40 4-k day of 314 (-V , 2009, before me, a Notary Public, the undersigned officer, personally
appeared JANET W. HARTMAN, Co-Executrix of the Estate of Robert G. Hartman, Jr., known to me (or satisfactorily proven) to
be the person whose name is subscribed to the within instrument, and acknowledged that said person executed the same for
the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
ly.
Notary Publ c COMMONWEALTH OF PENNSYLVANIA
NOTARIAL SEAL
LYNN EHRENFELD, Notary Public
Lemoyne Boro., Cumberland County
j ?ll'*sjQn.41res February 1, 2013
COMMONWEALTH OF PENNSYLVANIA )
( SS..
COUNTY OF CUMBERLAND )
On this, the (? day of Jl*t L.y , 2009, before me, a Notary Public, the undersigned officer, personally
appeared DANIEL J. HARTMAN, Co-Executor of the Estate of Robert G-. Hartman, Jr., known to me (or satisfactorily proven) to
be the person whose name is subscribed to the within instrument, and acknowledged that said person executed the same for
the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
lam.
Notary Pubic COMMOMM&TH OF PENNSYLVANIA
NOTARIAL SEAL
LYNN EHRENFELD, Notary Public
Lemoyne Boro., Cumberland County
M Commission s February 1, 2013
l'
cs,n
ASSIGNMENT OF INSTALLMENT AGREEMENT OF SALE
THIS ASSIGNMENT OF INSTALLMENT AGREEMENT OF SALE is made this 4 4 day of
Toll 2009, and is from JANET W. HARTMAN and DANIEL J. HARTMAN, Co-Executrix
and Co-Executor of the Estate of Robert G. Hartman, Jr., as Assignor (and referred to hereinafter as
"Assignor"); and
JANET W. HARTMAN, an adult individual who resides at 605 Allen Street, New Cumberland,
Pennsylvania, as Assignee (and referred to hereinafter as "Assignee").
WITNESSETH:
WHEREAS, during his lifetime, Robert G. Hartman, Jr., by an Installment Agreement of Sale dated
24 October 1994 (a copy of which is attached hereto as Exhibit A), agreed to sell an undivided one-third
interest, as tenants in common, in real estate situate in Lower Allen Township, Cumberland County,
Pennsylvania, being known and numbered as 2101 Orchard Road, Camp Hill, Pennsylvania, to Hershey-
Philbin Associates, Inc.; and
WHEREAS, the said Robert G. Hartman, Jr., died on 9 November 2003 and the Register of Wills of
Cumberland County, Pennsylvania, subsequently appointed Assignor as the Co-Executrix and Co-
Executor of his estate; and
WHEREAS, to complete the settlement of the estate, and the distribution of assets and
liabilities, Assignor has decided to distribute to Janet W. Hartman the Installment Agreement of Sale
referred to above, and all of the rights, remedies, and responsibilities arising from said agreement, and
the parties wish to have their assignment reduced to writing.
NOW, THEREFORE, in consideration of the above recitals and of the assignment hereinafter set
forth, as well as for other good and valuable considerations, Assignor does hereby assign, transfer,
grant, convey, and set-over unto Assignee all of Assignor's right, title, and interest in the
aforementioned Installment Agreement of Sale, dated 24 October 1994, together with the real estate
interest which is the subject of said agreement, the right to receive payments and other benefits from
the agreement, and the duty and obligation to perform certain obligations and performances required
by said agreement.
AND FURTHER, Assignor shall make, execute, acknowledge and deliver a special warranty deed
transferring unto Assignee all of the interest held by Assignor and the said Robert G. Hartman, Jr., in the
real estate in Lower Allen Township, Cumberland County, Pennsylvania, which is the subject of the said
Installment Agreement of Sale.
IN CONSIDERATION of which, the Assignee agrees to be bound by and to perform all of the
duties, obligations, and performances required of the seller in the said Installment Agreement of Sale
and to indemnify and save Assignor harmless from any loss, cost, or expense caused to Assignor by
Assignee's failure to perform such matters when and as required.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first
above written.
ESTATE OF ROBERT G. HARTMAN, JR.
i ss
ess
Witn Ji# et W. Hartman, Co-Executrix
1
Daniel J. 'art a , Co-Executor
ASSIGNEE:
?'?lanet W. Hartman
COMMONWEALTH OF PENNSYLVANIA )
(SS.:
COUNTY OF CUMBERLAND )
On this, the G+1 day of S?Ly 2009, before me, a Notary Public, the undersigned officer, personal)
appeared JANET W. HARTMAN, Co-Executrix of the Estate of Robert G. Hartman Jr. known to me (or satisfactorily Y
be the person whose name is subscribed to the within instrument, and acknowledged that said person executed the same fo?
the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
L?'?.v?
NotaryPublic
COMMONWEALTH OF PENNSYLVANIA
NOTARIAL SEAL
LYNN EHRENFELD, Notary Public
Lemoyne Boro., Cumberland County
M Commission Ex ores February 1, 2013
COMMONWEALTH OF PENNSYLVANIA )
(SS.:
COUNTY OF CUMBERLAND )
On this, the 6 day of . 2009, before me, a Notary Public, the undersigned officer, personally
appeared DANIEL ? . HARTMAN, Co-Executor of the Estate of Robert G. Hartman Jr., known to me (or satisfactorily
to be the person whose name is subscribed to the within instrument, and acknowledged that said person executed he same
for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
L7
Notary Pu lic
COMMONWEALTH OF PENN YLVANIA
NOTARIAL SEAL
LYNN EHRENFELD? Notary Public
Lemoyne-Born Cumbedand-County
Commission Expires Febru 1, 2013
COMMONWEALTH OF PENNSYLVANIA )
(SS.:
COUNTY OF CUMBERLAND )
On this, the 6*- day of SLt V`/ 2009, before me, a Notary Public, the undersigned officer, personally
appeared JANET W. HARTMAN, known to me (or satisfactorily proven) to be the person whose name is subscribed to the
within instrument, and acknowledged that said person executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
4 rw?`
Notary Pub c
COMMONWEALTH OF PENNSYLVANIA
NOTARIAL SEAL
LYNN EHRENFELD, Notary Public
Lemoyne Boro., Cumberland County
Commis 101 I MS Febru 1, 2013
INSTALLMENT AGREEMENT OF SALE
THIS AGREEMENT made as of the day of (Sl'? ,
1994 by.and between ROBERT G. HARTMAN, JR. of Cumberland County,
Pennsylvania, hereinafter referred to as "seller" and HERSHEY-
PHILBIN ASSOCIATES, INC. of Dauphin County, Pennsylvania, here-
inafter referred to as "buyer," WITNESSETH:
THAT, in consideration of the mutual covenants and agree-
ments hereiriafter contained, seller agrees to sell and convey,
and buyer agrees to purchase,
ALL that certain tract or'parcel of land in Lower Allen
GUIDO,
FF &
,AND
ket Sfted
rill, PA
Township, Cumberland County, Pennsylvania, being a one-third
interest in the premises known and numbered as 2101 Orchard Road,
Camp Hill, Pennsylvani--?, and the curtilage as more particularly
described and set forth in Exhibit "A" attached hereto and
incorporated herein by reference, upon the following terms and
conditions:
1. CONSIDERATION - The purchase price to be paid by.
buyer shall be the sum.of $148,000, to be paid as follows:
A. $14,800 in cash at the signing and delivery of
this agreement, the receipt whereof is hereby acknowledged;
B. The balance of $133,200, together with inter-
est at therate of 7.5% per annum shall.be due and payable.within
f a years from the date hereof. Commencing on the 1st day of
if
1 1994, and thereafter on the let day Af each
month, buyer shall make payments of $1,234.80 to be applied first
to interest as aforesaid and the balance to principal until both
principal and interest have been fully paid. Nothing herein con-
tained shall alter or affect the maturity date of this agreement.
1
i
2. PREPAYMENT - Buyer shall have the right to prepay
all or any part.of the unpaid principal balance, without penalty
for such prepayment, at any time and from time to time on any
regular Installment due date, together with interest on such
prepayment to the date of payment. At the time of payment in
full, together with interest as aforesaid, buyer shall be enti-
tled to receive title to the subject premises from seller, and
seller shall be obligated to convey title to the subject premises
to buyer in the manner-set forth hereinafter in Paragraph 9.
IS, GUIDO,
[UFF &
•SLAND
Aftimt strfet
iP HM, PA
3. APPORTIONMENT OF REAL ESTATE TAXES RENTS AND
EXPENSES - Local real estate taxes shall be apportioned on a
fiscal year basis to the date of execution of this agreement.
Thereafter, real estate taxes shall be apportioned in conformity
to a tenants in common ownership agreement attached hereto as
Exhibit "B"*and made a part hereof.
4. TRANSFER TAXES - Seller shall pay all state realty
transfer taxes calculated on the agreed consideration at the rate
applicable on the date of this agreement; buyer shall pay any
local transfer tax, any documentary tax, and any increases in the
rate of the. state tax from that existing at the date of this
agreement. Said conveyance'stamps and taxes shall be furnished
or paid for at the time of delivery of the deed.
5. POSSESSION AND OCCUPANCY -- Buyer shall be entitled
to possession of the third floor of the premises and an unspeci-
fied one-third, but not less than 20, of the parking spaces in
the parking areas adjacent to the premises upon execution of this
agreement in conjunction with the rights of the seller in said
parking areas.
6. RECORDING - This agreement may be filed of record
in any public office, as appropriate.
7. LEGAL TITLE - Upon payment in full, seller, his-
heirs and assigns, is obligated to convey to buyer, its-heirs,
successors and assigns, legal title to the premises free and
clear of all liens, encumbrances and easements,,excepting the
following: existing building restrictions, ordinances, easements
of roads, privileges or rights of public service companies, if
any, agreements or like matters of record, and easements or
restrictions visible upon the ground, and a first mortgage to
Pennsylvania State Bank in the original amount of $238,400, which
obligation shall remain the obligation of seller without any .
contribution by buyer. Otherwise, the title to the described
real estate shall be good and marketable, such as will be insured
by a licensed title insurance company at regular rates. Legal
title shall be conveyed by fee simple deed with a special war-
ranty.
In the event seller is unable to give a good and
marketable title such as will be insured by a licensed title
insurance company subject to the aforesaid, buyer shall have the
option-of.taking such title as seller can give, without abatement
of price, or of being repaid all moneys paid by buyer to seller
on account of.the-purchase price, together with such reasonable
costs of searching the title as buyer may have incurred. In the
latter event, there shall be no further liability or obligation
as to either-party concerning this agreement which thereafter
shall be null and void. Buyer shall be entitled to recover the
aforesaid costs of title search only if buyer obtained an attor-
ney's opinion of condition of title and notified seller of any
objections within thirty (30) days after date hereof.
3, GUIDO,
UFF &
SLAND
:arket street
> Hill, PA
8. MAINTENANCE, REPAIRS, INSURANCE AND TAXES - Buyer
agrees that buyer, at its own expense, will maintain the third
floor of the premises in a reasonable state of repair at all
times and will make any improvements to said premises without
contribution from the seller. Buyer agrees to make any and all
repairs to the third floor which, from time to time, become
necessary or are mandated by federal,'state, county or municipal
law, ordinance or code in effect now or may b-ecome effective in
the future.
Common maintenance, repairs, insurance and taxes
relating to the premises as a whole shall be made in accordance
with the tenants in common ownership agreement.
9. IMPROVEMENTS.AND ALTERATIONS - No major improve-
ments or alterations shall be made to the premises without the
prior written consent of seller, which consent shall not be
withheld unreasonably. Buyer agrees that seller or seller's
agents shall have the right at all reasonable times of the day
and upon reasonable notice under the circumstances to enter the
premises for the_ purpose of inspection- to- det-ermine whether buyer
has complied with the terms hereof.
. In the event of buyer's default as to the terms of
this agreement, any and all improvements and additions made to
the subject premises shall be and remain.a permanent part of the
premises; they shall not be removed by buyer and.buyer will not
be entitled to any reimbursement therefor;-nevertheless, if such
improvements, alterations or additions were made without the
written prior approval of seller, buyer will remove same within
thirty (30) days, upon written notice from seller so to do. In
the event of such notice to remove these items, buyer will repair
the surfaces from which such improvements were removed in confor-
mity with the. surrounding surfaces.
.10. -STRUCTURAL CHANGES - No structural changes shall
be made to the.premiss occupied by the buyer without the knowl-
edge and written consent of the seller.
3, GUIDO,
UFF &
3LAND
'arket Strcet
w M11, PA
11. ASSIGNMENT OR`SALE - This agreement may not be?
assigned by buyer without the prior written approval of seller,
nor may the premises be sold by buyer by means of an'installment
sales agreement or comparable document without the prior written
approval of seller; provided that the premises purchased by buyer
may be sold in accordance with the Tenants in Common Ownership
Agreement.
12. WARRANTY AS TO CONDITION, USE OR OCCUPANCY -
The premises are being sold in "as is" condition and it is
understood that buyer has inspected the property or hereby waives
the right to do so, and that buyer has agreed to purchase the
property as the result of buyer's inspection and not because of
or in reliance on any representation made by the seller or
seller's agent. Seller makes no warranty or representation.as to
the conformity of any future use or occupancy of the subject
premises insofar as federal, state or local laws are concerned
relative to 'zoning, building or other laws, ordinances or codes.
In the event that buyer wishes-to obtain approval of a change of
use or occupancy, seller agrees to cooperate to any reasonable
degree in such application or request, providing all costs
associated therewith shall be borne by buyer.
13. CONDEMNATION - In the event of condemnation of the
subject premises or any portion thereof by any governmental
agency, public authority or utility prior to the payment of all
the within obligations from buyer to seller, the payment of
damages for the "taking" shall be divided between the buyer and
the seller "as their respective interests then may appear."
14. DEFAULT - Any failure of the buyer to make payment
of any moneys required.. by this- agreement within- thirty (30) days
after the due date for.such payment, or any acts, or the perfor-
mance of any act forbidden by this agreement, or the failure to
perform any act required by this agreement, may constitute a
default, at the option of seller. In the case of default by
buyer, seller shall retain any and all moneys received under the
provisions of this agreement (whether on account of purchase
money or otherwise) as compensation for buyer's use and occupancy
of said premises.
15. CONFESSION OF JUDGMENT - In the event of default
of payment of any sum of principal or interest herein agreed to
be paid for the space of thirty (30) days after the same shall.
become due and payable by the terms hereof, or the breach of any
other of the terms of this agreement, the whole of said principal
sum, at the option of seller, shall become due and payable
forthwith, anything hereinbefore contained to the contrary..;`
notwithstanding. In such case of default, buyer 'hereby .author-
izes and .empowers any attorney of any court of record in the
Commonwealth of Pennsylvania or elsewhere to appear for buyer and
confess a judgment for the entire principal sum and interest
remaining unpaid hereon, with 5% attorney's commission or fees,
hereby waiving the right of exemption and inquisition, so far as
the land herein described, and any property or building thereon
may be concerned. Said seller, at seller's option, among other
remedies available to seller, may proceed by Action of Ejectment
on this agreement after default made as aforesaid for the recov-
ery of said premises; in such case, buyer hereby authorizes and
empowers any attorney of any court of record in the Commonwealth
of Pennsylvania, or elsewhere,-to appear for buyer and confess
judgment of ejectment, and authorizes the immediate issuing of a
Writ of Possession and Execution (without asking leave or court)
for the costs and 5% attorney's commission or fees, waiving all
stay and exemption laws.
Prior to the entry of judgment by confession or-the
filing of an action of ejectment, seller shall give to buyer
written notice of default and seller's intention to proceed by
.legal action, which notice shall provide a period of thirty (30)
days during which the buyer can correct the default.
16. RIGHT OF BUYER TO PAY LIENS -
GUIDO,
J" A
LAND
irkct strw
Hill, PA
A. Notice - In addition to the aforementioned
mortgage to Pennsylvania .State Bank, notice of the entry of any
mortgage, judgment, lien or other encumbrance affecting title to
said premises received by the seller after the date of the
execution of this agreement shall be given by the seller tothe
buyer within, thirty (-30F days of the recording thereof in the
Cumberland County Court House.
B. Delinquent Payments - In the event any mort-
gage, judgment, lien.or other encumbrance affecting title to the
premises existing at the date of the execution of this agreement
or hereafter entered of record and default in the payment is made
by the seller, then buyer shall have the right to make the
delinquent payments and to receive credit for the full amount of
said payments made by the buyer and to deduct the amount thereof
from the required monthly payments under this agreement...Prior
to exercising the rights stated in this paragraph, buyer shall
give seller 48 hours notice by certified mail of his intent to do
so.,'but this provision shall not limit* 'buyer"'s right to'make the
delinquent payments and to claim credit therefor.
17. APPLICABLE LAW - In the event of any disagreement
or misunderstanding, the terms of this agreement shall be con-
strued pursuant to the laws of the Commonwealth of Pennsylvania
in effect at the time of the execution hereof and as they may be
amended subsequently.
GUIDO,
7FF &
LAND
ukat Stmt
Hill, PA
18. SELLER'S RIGHT TO SEVER BUYER'S INTEREST AS A UNIT
OF A dONDOMINIUM STRUCTURE - Seller, at any time during the five
year period. of this agreement, may elect to file documents with
the appropriate authorities to make the entire building and the
cartilage described on Exhibit "A" as 'a condominium structure and
to limit buyer's interest in the condominium to the third floor,
an undefined one-third of the applicable parking area and an
interest in the common elements of the building.
19. ENTIRE AGREEMENT - This document contains the
entire agreement between buyer and seller; there are no represen-
tations, warranties, covenants, terms or conditions, except as
specifically set forth herein.
20. TIME OF THE-ESSENCE - It•is the agreement of the
parties hereto that time shall be of the essence.
21. BINDING AGREEMENT - This agreement shall extend to
and be legally binding upon the parties, their respective heirs,
executors, administrators and assigns..
22. WAIVER - The failure of either party to insist
upon strict enforcement of any provisions of this agreement shall
not constitute a waiver of the right to enforcement of that
provision or of any other provision.
23. DESCRIPTIVE HEADINGS - The descriptive headings
used herein are'for convenience only and they are not intended to
indicate all of the matter in the sections-which follow them.
Accordingly,- they have- no- effect-- whatsoever in determining the
rights or obligations of the parties.
IN WITNESS WHEREOF, the parties have hereunto set their
hands and seals the day and year,first above, written.
WITNESS:
(SEAL)
obert G. Hartman, J V.
GUIDO,
7FF &
U,AND
uket Street
Hill, PA
ATTEST:
HERSHEY-PHILBIN ASSOCIATES, INC.
--------------
Secretar President (SEAL)
COMMONWEALTH OF PENNSYLVANIA)
COUNTY OF SS.
CUMBERLAND)
I I hereby certify that on this C0 ?
day of Oe
1994; before me, /.
a notary public in and for the above count
y and
state, personally appeared-
the
attorney named in the foregoing Indenture, and
pursuance of the authority therein conferred by virtue and in
edged
edged the said Indenture to be the act upon him, acknowl-
deed of the said
Hershey-Philbin Associates, Inc.
WITNESS my hand and notarial seal the day and year afore-
said.
• r
otary Public
S, GUIDO,
TJFF &
SLAND
tarket Street
P Hill, PA
rMELMA S. M NOTARIAL AAA SFAL
SLIN, Notary Public
Camp Hill Cumberland County
MY Commission Expires July linty
EXHIBIT "A"
ALL that certain piece or parcel of land situate in Lower Allen
Township, Cumberland County, Pennsylvania, more particularly
bounded and-described as follows, to wit:
BEGINNING at a point in the middle of the township road leading
from Carlisle Road to Spring Lake Colony, said oint 30.
feet west of the center line of Carlisle Ro-ad; thencebbynotherll
lands of Hartman, South 05 degrees 17 minutes West, 210.64 feet
to an iron pin; thence by lands now or formerly of Garver, South
83 degrees 16 minutes West, 200.00 feet to an iron pin; thence
still by other lands now or formerly of, Garver, North 15 degrees
52 minutes West,.215.27-feet to a point in the center of the
aforesaid township road; thence by the middle of said road, north
84 degrees 39 minutes East, 278.02 feet to the point of
BEGINNING.
HAVING thereon erected a three story office building known and
numbered as 2101 Orchard Road, Camp Hill, Pennsylvania. '
YUIDO,
E&
kND
:t street
1. PA
13
F i I F C)
2009 JUL 31 nE 1 3• 3 4
CUPJi w TV
JANET W. HARTMAN,
Plaintiff
VS.
HERSHEY-PHILBIN ASSOCIATES, INC.,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,
PENNSYLVANIA n
'T 4
CIVIL ACTION - LAW ! r,
<Y r,:
NO. 08-7503 CIVILM
MOTION TO FILE AMENDED COMPLAINT
cz)
'rl
.-I
X
41
J
:m
AND NOW comes the above-named Plaintiff, by her attorney, Samuel L. Andes, and moves the
Court for leave to file an Amended Complaint for Confession of Judgment in the above matter, based
upon the following:
1. Plaintiff commenced this action by filing a Complaint for Confession of Judgment in
Ejectment on 29 December 2008.
2. Following the entry of judgment, Plaintiff discovered some problems with the chain of title
to the property which is the subject of this action and with the legal description to the property
described in both her complaint and in the confession of judgment entered on that complaint.
3. Plaintiff has corrected the apparent defects or problems in the chain of title and now
wishes to amend her complaint to reflect the steps taken to correct those problems and to correct the
legal description of the property for which she has confessed judgment in ejectment.
4. The Rules of Court, and specifically Pa. R.C.P. 1033, permit the liberal amendment of
pleadings to conform to the facts in a case such as this.
5. Defendant will not be prejudiced by permitting Plaintiff to amend her complaint.
WHEREFORE, Plaintiff moves this Court for leave to file the amended complaint, a copy of
which is attached hereto and marked as Exhibit A.
_C?2_ - - (?CL' 0,
Samuel L. Andes
Attorney for Plaintiff
P.O. Box 168
Lemoyne, PA 17043
(717) 761-5361
CERTIFICATE OF SERVICE
I hereby certify that I served a copy of the foregoing document upon counsel for the Defendant
herein by regular mail, postage prepaid, addressed as follows:
R. Mark Thomas, Esquire
101 South Market Street
Mechanicsburg, PA 17055
Date: 111111C) '
Amy Harkins
Secretary for Samuel L. Andes
f
OF 7?_7
2010 JAN 12 All 9: 10
JANET W. HARTMAN,
Plaintiff
VS.
HERSHEY-PHILBIN ASSOCIATES, INC.,
Defendant
IN THE C016' F C.i7lQ N ONS OF
CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL ACTION - LAW
NO. 08-7503 CIVIL TERM
AMENDED COMPLAINT FOR CONFESSION OF JUDGMENT IN EJECTMENT
AND NOW comes the above-named Plaintiff, by her attorney Samuel L. Andes, and files the
following Amended Complaint for Confession of Judgment in Ejectment to amend the Complaint
previously filed on 28 December 2008, all based upon the following:
1. The Plaintiff is Janet W. Hartman, an adult individual who resides in New Cumberland,
Cumberland County, Pennsylvania.
2. The Defendant is Hershey-Philbin Associates, Inc., a Pennsylvania corporation which
maintains its principal offices at 2101 Orchard Road in Camp Hill, Lower Allen Township, Cumberland
County, Pennsylvania.
3. By an Installment Agreement of Sale dated 24 October 1994, between the Defendant and
Robert G. Hartman, Jr., Defendant agreed to purchase a one-third interest in premises known and
numbered as 2101 Orchard Road in Camp Hill, Pennsylvania, which premises were more particularly
described in Exhibit A attached to the said Agreement, and pay for that property the sum of
$148,000.00. A photostatic copy of the Installment Agreement of Sale, which is a true and correct
reproduction of the original agreement, is attached hereto and marked as Exhibit A.
4. Prior to his death, by Deed dated 19 September 1996, the said Robert G. Hartman, Jr.
attempted to convey the entire property which was the subject of the aforementioned agreement,
and transfer his interest in that agreement, to his wife, Janet W. Hartman, the Plaintiff herein. The
deed by which he sought to convey the property, however, erroneously described only a portion of it
and was incomplete. Following his death, the intended transfer of the real estate, and the assignment
of the Installment Assignment of Sale dated 24 October 1994, were confirmed by an executor's deed
dated 6 July 2009, a copy of which is attached hereto and marked as Exhibit B and an Assignment of
Installment Agreement of Sale, also dated 6 July 2009, a copy of which is attached hereto and marked
Exhibit C.
5. As a result of these conveyances and assignments, the Plaintiff is now the owner of the
property and the rights under the agreement of sale which she now seeks to enforce.
6. Paragraph 15 of the aforementioned agreement of sale contains a warrant of attorney
permitting a confession of judgment in ejectment in the event of Defendant's default and specifically
states:
Said Seller, at Seller's option among other remedies available to Seller, may
proceed by Action of Ejectment on this agreement after default made as aforesaid for
the recovery of said premises; in such case, Buyer hereby authorizes and empowers any
attorney of any court of record in the Commonwealth of Pennsylvania, or elsewhere, to
appear for Buyer and confess judgment of ejectment and authorizes the immediate
issuing of a Writ of Possession and Execution (without asking leave of court) for the
costs and a 5% attorney's commission or fees, waiving all stay and exemption laws.
7. Defendant is in default of its obligations under the agreement of sale as follows:
A. Payments due for the months of November and December of 2007 and
January of 2008 were not paid until March of 2008, making those payments all at least
sixty (60) days late.
B. Payment due for the month of February 2008 was not made until April of
that year.
C. Payment due for the month of March 2008 was not made until May of that
year.
D. Payment due for the month of April 2008 was not made until August of that
year.
E. The payments due for the month of May 2008 and subsequent months have
not been paid.
Pursuant to Paragraph 1 of the aforementioned Agreement, the monthly payments, in the amount of
$1,234.80 were to be paid on the 1St day of each month. As a result of the failure to make these
payments, the amount due is $23,461.20 for unpaid installments due as of the date of this complaint.
8. Paragraph 15 of the aforementioned Agreement requires Plaintiff to give Defendant at
least thirty (30) days' prior notice before commencing an action in ejectment. Plaintiff, through her
attorney, gave that notice to Defendant, through its attorney, by a Notice of Default dated 19
September 2008 and mailed that day. A copy of said Notice of Default is attached hereto and marked
as Exhibit D.
9. Plaintiff originally entered judgment in this matter by filing her Complaint for Confession of
Judgment in Ejectment on 29 December 2008. This Amended Complaint is filed to amend that
pleading. Other than this pending action, there have been no prior judgments entered on the
aforementioned agreement in any jurisdiction prior to this action.
10. No judgment has been entered on the aforementioned agreement in any jurisdiction
prior to this action.
11. The judgment entered in this matter is not entered against a natural person in connection
with a residential lease.
12. The property for which Plaintiff seeks a judgment of ejectment is the Defendant's one-
third interest, as a tenant in common, in the property known and numbered as 2101 Orchard Road in
Camp Hill, Lower Allen Township, Cumberland County, Pennsylvania, and is more particularly bounded
and described on Exhibit E which is attached hereto and made a part hereof.
WHEREFORE, Plaintiff demands a judgment in ejectment against the Defendant for the
property described in Exhibit E attached hereto.
Sa L. Andes
Attorney for Plaintiff
Supreme Court ID 17225
525 North 12th Street
P.O. Box 168
Lemoyne, PA 17043
(717) 761-5361
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).
Date: l
ET W. HARTMAN
CERTIFICATE OF SERVICE
I hereby certify that I served a copy of the foregoing document upon counsel for the Defendant
herein by regular mail, postage prepaid, addressed as follows:
R. Mark Thomas, Esquire
101 South Market Street
Mechanicsburg, PA 17055
Date: I 11111C) OjW Im .,\+Vl 'ti?
Amy M. rkins
Secretary for Samuel L. Andes
EXHIBIT A
INSTALLMENT AGREEMENT OF SALE
THIS AGREEMENT made as of the ,?V-6- day of 6 az9=6
1994 by and between ROBERT G. HARTMAN, JR. of Cumberland County,
Pennsylvania, hereinafter referred to as "seller" and HERSHEY-
PHILBIN ASSOCIATES, INC. of Dauphin County, Pennsylvania, here-
inafter referred to as "buyer," WITNESSETH:
THAT, in consideration of the mutual covenants and agree-
ments hereinafter contained, seller agrees to sell and convey,
and buyer agrees to purchase,
ALL that certain tract or parcel of land in Lower Allen
DIS, GUIDO,
SHUFF &
1ASLAND
0 Market Street
'amp Hill, PA
Township, Cumberland County, Pennsylvania, being a one-third
interest in the premises known and numbered as 2101 Orchard Road,
Camp Hill, Pennsylvania, and the curtilage as more particularly
described and set forth in Exhibit "A" attached hereto and
incorporated herein by reference, upon the following terms and
conditions:
1. CONSIDERATION - The purchase price to be paid by.
buyer shall be the sum of $148,000, to be paid as follows:
A. $14,800 in cash at the signing and delivery of
this agreement, the receipt whereof is hereby acknowledged;
B. The balance of $133,200, together with inter-
est at the rate of 7.5% per annum shall be due and payable within
fi e years from the date hereof. Commencing on the 1st day of
month, buyer shall make 94a and thereafter on the lst day cif each
to interest as aforesaid payments
first
ande the balance $1,234.80
to 8 principal applie
uuntil both
principal and interest have been fully paid. Nothing herein con-
tained shall alter or affect the maturity date of this agreement.
i
2. PREPAYMENT - Buyer shall have the right to prepay
all or any part of the unpaid principal balance, without penalty
for such prepayment, at any time and from time to time on any
regular installment due date, together with interest on such
prepayment to the date of payment. At the time of payment in
full, together with interest as aforesaid, buyer shall be enti-
tled to receive title to the subject premises from seller, and
seller shall be obligated to convey title to the subject premises
to buyer in the manner-set forth hereinafter in Paragraph 9.
MIDIS, GUMO,
SHUFF &
MASLAND
.109 Market Street
Camp Hill, PA
3. APPORTIONMENT OF REAL ESTATE TAXES RENTS AND
EXPENSES - Local real estate taxes shall be apportioned on a
fiscal year basis to the date of execution of this agreement.
Thereafter, real estate taxes shall be apportioned in conformity
to a tenants in common ownership agreement attached hereto as
Exhibit "B" and made a part hereof.
4. TRANSFER TAXES - Seller shall pay all state realty
transfer taxes calculated on the agreed consideration at the rate
applicable on the date of this agreement; buyer shall pay any
local transfer tax, any documentary tax, and any increases in the
rate of the. state tax from that existing at the date of this
agreement. Said conveyance'stamps and taxes shall be furnished
or paid for at the time of delivery of the deed.
5. POSSESSION AND OCCUPANCY - Buyer shall be entitled
to possession of the third floor of the premises and an unspeci-
fied one-third, but not less than 20, of the parking spaces in
the parking areas adjacent to the premises upon execution of this
agreement in conjunction with the rights of the seller in said
parking areas.
6. RECORDING - This agreement may be filed of record
in any public office, as appropriate.
7. LEGAL TITLE - Upon payment in full, seller, his
heirs and assigns, is obligated to convey to buyer, its heirs,
successors and assigns, legal title to the premises free and
clear of all liens, encumbrances and easements,.excepting the
following: existing building restrictions, ordinances, easements
of roads, privileges or rights of public service companies, if
any, agreements or like matters of record, and easements or
restrictions visible upon the ground, and a first mortgage to
Pennsylvania State Bank in the original amount of $238,400, which
obligation shall remain the obligation of seller without any
contribution by buyer. Otherwise, the title to the described
real estate shall be good and marketable, such as will be insured
by a licensed title insurance company at regular rates. Legal
title shall be conveyed by fee simple deed with a special war-
ranty.
In the event seller is unable to give a good and
marketable title such as will be insured by a licensed title
insurance company subject to the aforesaid, buyer shall have the
option of taking such title as seller can give, without abatement
of price, or of being repaid all moneys paid by buyer to seller
on account of the purchase price, together with such reasonable
costs of searching the title as buyer may have incurred. In the
latter event, there shall be no further liability or obligation
as to either party concerning this agreement which thereafter
shall be null and void. Buyer shall be entitled to recover the
aforesaid costs of title search only if buyer obtained an attor-
ney's opinion of condition of title and notified seller of any
objections within thirty (30) days after date hereof.
.IRIS, GUIDO,
Slim &
MASLAND
109 Market Street
Camp Hill, PA
8. MAINTENANCE, REPAIRS, INSURANCE AND TAXES - Buyer
agrees that buyer, at its own expense, will maintain the third
floor of the premises in a reasonable state of repair at all
times and will make any improvements to said premises without
contribution from the seller. Buyer agrees to make any and all
repairs to the third floor which, from time to time, become
necessary or are mandated by federal, state, county or municipal
law, ordinance or code in effect now or may become effective in
the future.
Common maintenance, repairs, insurance and taxes
relating to the premises as a whole shall be made in accordance
with the tenants in common ownership agreement.
9. IMPROVEMENTS AND ALTERATIONS - No major improve-
ments or alterations shall be made to the premises without the
prior written consent of seller, which consent shall not be
withheld unreasonably. Buyer agrees that seller or seller's
agents shall have the right at all reasonable times of the day
and upon reasonable notice under the circumstances to enter the
premises for the purpose of inspection to determine whether buyer
has complied with the terms hereof.
In the event of buyer's default as to the terms of
this agreement, any and all improvements and additions made to
the subject premises shall be and remain a permanent part of the
premises; they shall not be removed by buyer and,buyer will not
be entitled to any reimbursement therefor; nevertheless, if such
improvements, alterations or additions were made without the
written prior approval of seller, buyer will remove same within
thirty (30) days, upon written notice from seller so to do. In
the event of such notice to remove these items, buyer will repair
the surfaces from which such improvements were removed in confor-
mity with the surrounding surfaces.
10. STRUCTURAL CHANGES - No structural changes shall
be made to the premiss occupied by the buyer without the knowl-
edge and written consent of the seller.
.IDIS, GUIDO,
SHUFF &
MASLAND
109 Market Street
Camp Hill, PA
11. ASSIGNMENT OR SALE - This agreement may not be
assigned by buyer without the prior written approval of seller,
nor may the premises be sold by buyer by means of an,installment
sales agreement or comparable document without the prior written
approval of seller; provided that the premises purchased by buyer
may be sold in accordance with the Tenants in Common Ownership
Agreement.
12. WARRANTY AS TO CONDITION, USE OR OCCUPANCY -
The premises are being sold in "as is" condition and it is
understood that buyer has inspected the property or hereby waives
the right to do so, and that buyer has agreed to purchase the
property as the result of buyer's inspection and not because of
or in reliance on any representation made by the seller or
seller's agent. Seller makes no warranty or representation as to
the conformity of any future use or occupancy of the subject
premises insofar as federal, state or local laws are concerned
relative to zoning, building or other laws, ordinances or codes.
In the event that buyer wishes to obtain approval of a change of
use or occupancy, seller agrees to cooperate to any reasonable
degree in such application or request, providing all costs
associated therewith shall be borne by buyer.
13. CONDEMNATION - In the event of condemnation of the
subject premises or any portion thereof by any governmental
agency, public authority or utility prior to the payment of all
the within obligations from buyer to seller, the payment of
damages for the "taking" shall be divided between the buyer and
the seller "as their respective interests then may appear."
14. DEFAULT - Any failure of the buyer to make payment
of any moneys required by this agreement within thirty (30) days
after the due date for such payment, or any acts, or the perfor-
mance of any act forbidden by this agreement, or the failure to
perform any act required by this agreement, may constitute a
default, at the option of seller. In the case of default by
buyer, seller shall retain any and all moneys received under the
provisions of this agreement (whether on account of purchase
money or otherwise) as compensation for buyer's use and occupancy
of said premises.
15. CONFESSION OF JUDGMENT - In the event of default
of payment of any sum of principal or interest herein agreed to
be paid for the space of thirty (30) days after the same shall
become due and payable by the terms hereof, or the breach of any
other of the terms of this agreement, the whole of said principal
sum, at the option of seller, shall become due and payable
forthwith, anything hereinbefore contained to the contrary.
notwithstanding. In such case of default, buyer hereby author-
izes and empowers any attorney of any court of record in the
Commonwealth of Pennsylvania or elsewhere to appear for buyer and
confess a judgment for the entire principal sum and interest
remaining unpaid hereon, with 5% attorney's commission or fees,
hereby waiving the right of exemption and inquisition, so far as
the land herein described, and any property or building thereon
may be concerned. Said seller, at seller's option, among other
remedies available to seller, may proceed by Action of Ejectment
on this agreement after default made as aforesaid for the recov-
ery of said premises; in such case, buyer hereby authorizes and
empowers any attorney of any court of record in the Commonwealth
of Pennsylvania, or elsewhere, to appear for buyer and confess
judgment of ejectment, and authorizes the immediate issuing of a
Writ of Possession and Execution (without asking leave or court)
for the costs and 5% attorney's commission or fees, waiving all
stay and exemption laws.
Prior to the entry of judgment by confession or the
filing of an action of ejectment, seller shall give to buyer
written notice of default and seller's intention to proceed by
legal action, which notice shall provide a period of thirty (30)
days during which the buyer can correct the default.
16. RIGHT OF BUYER TO PAY LIENS -
mIS, GUIDO,
SNUFF &
AMLAND
09 Market Street
Camp Hill, PA
.A. Notice - In addition to the aforementioned
mortgage to Pennsylvania State Bank, notice of the entry of any
mortgage, judgment, lien or other encumbrance affecting title to
said premises received by the seller after the date of the
execution of this agreement shall be given by the seller to the
buyer within thirty (30) days of the recording thereof in the
Cumberland County Court House.
B. Delinquent Payments - In the event any mort-
gage, judgment, lien or other encumbrance affecting title to the
premises existing at the date of the execution of this agreement
or hereafter entered of record and default in the payment is made
by the seller, then buyer shall have the right to make the
delinquent payments and to receive credit for the full amount of
said payments made by the buyer and to deduct the amount thereof
from the required monthly payments under this agreement. Prior
to exercising the rights stated in this paragraph, buyer shall
give seller 48 hours notice by certified mail of his intent to do
so, but this provision shall not limit buyer's right to make the
delinquent payments and to claim credit therefor.
17. APPLICABLE LAW - In the event of any disagreement
or misunderstanding, the terms of this agreement shall be con-
strued pursuant to the laws of the Commonwealth of Pennsylvania
in effect at the time of the execution hereof and as they may be
amended subsequently.
18. SELLER'S RIGHT TO SEVER BUYER'S INTEREST AS A UNIT
OF A CONDOMINIUM STRUCTURE - Seller, at any time during the five
year period of this agreement, may elect to file documents with
the appropriate authorities to make the entire building and the
curtilage described on Exhibit "A" as a condominium structure and
to limit buyer's interest in the condominium to the third floor,
an undefined one-third of the applicable parking area and an
interest in the common elements of the building.
19. ENTIRE AGREEMENT - This document contains the
entire agreement between buyer and seller; there are no represen-
tations, warranties, covenants, terms or conditions, except as
specifically set forth herein.
20. TIME OF THE ESSENCE - It is the agreement of the
parties hereto that time shall be of the essence.
21. BINDING AGREEMENT - This agreement shall extend to
and be legally binding upon the parties, their respective heirs,
executors, administrators and assigns.
22. WAIVER - The failure of either party to insist
upon strict enforcement of any provisions of this agreement shall
not constitute a waiver of the right to enforcement of that
provision or of any other provision.
23. DESCRIPTIVE HEADINGS - The descriptive headings
used herein are for convenience only and they are not intended to
indicate all of the matter in the sections which follow them.
Accordingly, they have no effect whatsoever in determining the
rights or obligations of the parties.
IDIS,GUIDO, IN WITNESS WHEREOF, the parties have hereunto set their
SNUFF &
MASLAND hands and seals the day and year first above written.
09 Market Street
Camp Hill, PA
WITNESS:
(SEAL)
11obert G. Hartman, J V.
ATTEST: HERSHEY-PHILBIN ASSOCIATES, INC.
(SEAL)
Secretar y
? <ZL
President
WIS, GUIDO,
SNUFF &
MASLAND
09 Market Street
Camp Hill, PA
COMMONWEALTH OF PENNSYLVANIA)
COUNTY OF SS.
CUMBERLAND)
I hereby certify that on this <::17day of 01ce-Z4.z
1994, before me, a notary public in and for the above county and
state, personally appeared = '4? 5,5.
the
attorney named in the foregoing Indenture, and by virtue and in
pursuance of the authority therein conferred upon him, acknowl-
edged the said Indenture to be the act and deed of the said
Hershey-Philbin Associates, Inc.
WITNESS my hand and notarial seal the day and year afore-
said.
r
rotary Public
MIDIS, GUIDO,
SHUFF &
MASLAND
109 Market Street
Camp Hill, PA
N07IAL SEAL
THELMA S. M
CAUSL N Notary Public
Camp y!A Cumberland County
my Commission Expires Jul
y 3, 19
EXHIBIT "A"
ALL that certain piece or parcel of land situate in Lower Allen
Township, Cumberland County, Pennsylvania, more particularly
bounded and described as follows, to wit:
BEGINNING at a point in the middle of the township road leading
from Carlisle Road to Spring Lake Colony, said point being 30.11
feet west of the center line of Carlisle Road; thence by other
lands of Hartman, South 05 degrees 17 minutes West, 210.64 feet
to an iron pin; thence by lands now or formerly of Garver, South
83 degrees 16 minutes West, 200.00 feet to an iron pin; thence
still by other lands now or formerly of Garver, North 15 degrees
52 minutes West, 215.27 feet to a point in the center of the
aforesaid township road; thence by the middle of said road, north
84 degrees 39 minutes East, 278.02 feet to the point of
BEGINNING.
HAVING thereon erected a three story office building known and
numbered as 2101 Orchard Road, Camp Hill, Pennsylvania.
-IS, GUIDO,
ffUF7 &
IISLAND
Market Street
np Hill, PA
13
EXHIBIT B
0000VI
TAX PARCEL #_ 1-6-23- 6f)yq438
EXECUTOR'S DEED
THIS DEED is made this 6 day of ? t L-1 , 2009, by and between:
JANET W. HARTMAN and DANIEL J. HARTMAN, Co-Executrix and Co-Executor of the Estate of Robert G.
Hartman, Jr., deceased, late of Cumberland County, Pennsylvania, GRANTOR;
-and-
JANET W. HARTMAN, single woman, of 605 Allen Street, New Cumberland, Pennsylvania, hereinafter
referred to individually or collectively, as the case may be, as GRANTEE.
WHEREAS, the said Robert G. Hartman, Jr., deceased, was seized in fee of certain real estate together
with the improvements thereon erected, known as 2101 Orchard Road, Camp Hill, Lower Allen Township,
Cumberland County, Pennsylvania, hereinafter described; and
WHEREAS, the said Robert G. Hartman, Jr. died on 9 November 2003 leaving a Last Will and Testament
dated 1 August 1996 which was approved and registered at the Office of the Register of Wills in and for
Cumberland County, Pennsylvania, wherein JANET W. HARTMAN and DANIEL J. HARTMAN were appointed Co-
Executrix and Co-Executor; and
WHEREAS, a Petition for the Grant of Letters Testamentary was duly filed by JANET W. HARTMAN and
DANIEL J. HARTMAN by which Letters Testamentary were issued on 18 December 2003; and
WHEREAS, pursuant to the provisions of the Probate Estates and Fiduciaries Code, 20 Pa. C.S. Section
3351, the Executor is authorized to sell real estate of the decedent at any public or private sale.
WITNESSETH, that in consideration of One ($1.00) Dollar, in hand paid by GRANTEE to GRANTOR, the
receipt whereof is hereby acknowledged, the GRANTOR does hereby grant, bargain, and convey to the said
GRANTEE, grantee's heirs and assigns:
ALL THAT CERTAIN 1/3 TENANTS IN COMMON INTEREST in that tract or parcel of land
and premises, situate, lying and being in Lower Allen Township, Cumberland County,
Pennsylvania, more particularly described as follows, to wit:
BEGINNING at a point in the middle of the township road leading from Carlisle Road to
Spring Lake Colony, said point being 30.11 feet west of the center line of Carlisle Road; thence by
Tract No. 2 hereinafter described, South 05 degrees 17 minutes West, 210.64 feet to an iron pin;
thence by lands now or formerly of Garver, South 83 degrees 16 minutes West, 200.00 feet to an
iron pin; thence, still by other lands now or formerly of Garver, North 15 degrees 52 minutes
II West, 215.27 feet to a point in the center of the aforesaid township road; thence by the middle
of said road, North 84 degrees 39 minutes East, 278.02 feet to the point of BEGINNING.
HAVING thereon erected a building known as "Park Place" Office Building and known and
numbered as 2101 Orchard Road, Camp Hill, Pennsylvania.
UNDER AND SUBJECT to all rights, restrictions, easements and rights-of-way of prior
record.
BEING a portion of the same premises which Dauphin Deposit Bank and Trust Company,
by its deed dated 19 April 1994 and recorded in the Recorder of Deeds Office in and for
Cumberland County, Pennsylvania, in Deed Book 104 at Page 367, granted and conveyed unto
Robert G. Hartman, Jr. Thereafter, by a deed dated 19 September 1996 and recorded in the
Recorder of Deeds Office in and for Cumberland County, Pennsylvania, in Deed Book 146 at Page
684, the said Robert G. Hartman, Jr., conveyed a two-thirds interest in that property to Janet
W. Hartman, the grantee herein. This deed is given to convey the balance of that property to the
grantee, Janet W. Hartman.
TOGETHER with all and singular the buildings, improvements, ways, streets, alleys,
passages, waters, water-courses, rights, liberties, privileges, hereditaments and appurtenances
whatsoever, thereunto belonging or in any wise appertaining and the reversions and remainders,
rents, issues and profits thereof, and all the estate, right, title, interest, property, claim and
demand whatsoever of her, the said decedent, at and immediately before the time of her
decease, in law, equity, or otherwise howsoever, of, in, to or out of the same.
TO HAVE AND TO HOLD the said lot or piece of ground above described, with the
buildings and improvements thereon erected, hereditaments and premises hereby granted or
mentioned, and intended so to be, with the appurtenances, unto the said Grantee, Grantee's
heirs and assigns, to and for the only proper use and behoof of the said Grantee, Grantee's heirs
and assigns, forever.
IN WITNESS WHEREOF, the said Grantor has hereunto set their hands and seals the day and year first
above written.
Witness
---"- .??` . ?`' (SEAL)
4afiet W. Hartman
Co-Executrix of the Estate of Robert G. Hartman, Jr.
4
(SEAL)
aniel ary an
Co-Executo` of the Estate of Robert G. Hartman, Jr.
I hereby certify that the precise address of the grantee herein is
605 Allen Street
New Cumberland, PA 17070
4'ezzyr or r ee
COMMONWEALTH OF PENNSYLVANIA )
( SS.:
COUNTY OF CUMBERLAND )
On this, the 64'k day of TLt L V , 2009, before me, a Notary Public, the undersigned officer, personally
appeared JANET W. HARTMAN, Co-Executrix of the Estate of Robert G. Hartman, Jr., known to me (or satisfactorily proven) to
be the person whose name is subscribed to the within instrument, and acknowledged that said person executed the same for
the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
5
Notary Public COMMONWEALTH OF PENNSY`
NOTARIAL SEAL
LYNN EHRENFELD, Notary Public 0WON
Lemoyne Boro., Cumberland County
.?...._. _?, : mmsion Expires February 1, 2013
COMMONWEALTH OF PENNSYLVANIA )
(SS.:
COUNTY OF CUMBERLAND )
On this, the 1?? day of U11tLj 2009, before me, a Notary Public, the undersigned officer, personally
appeared DANIEL J. HARTMAN, Co-Executor of the Estate of Robert G. Hartman, Jr., known to me (or satisfactorily proven) to
be the person whose name is subscribed to the within instrument, and acknowledged that said person executed the same for
the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
Notary Pubic
COMMONWEALTH OR PENNSYLA'Nj
1.
NOTARIAL SEAL
LYNN EHRENFELD, Notary Public'` , #
Lemoyne Boro., Cumberland County
My Commission Expires February 1, 2013
ROBERT P. ZIEGLER
RECORDER OF DEEDS
CUMBERLAND COUNTY
1 COURTHOUSE SQUARE
CARLISLE, PA 17013
717-240-6370
Instrument Number - 200923630
Recorded On 7/8/2009 At 12:08:24 PM
* Instrument Type - DEED
Invoice Number - 47823 User ID - RAK
* Grantor - HARTMAN, JANET W
* Grantee - HARTMAN, JANET W
* Customer - ANDES
* FEES
STATE WRIT TAX $0.50
STATE JCS/ACCESS TO $10.00
JUSTICE
RECORDING FEES - $12.50
RECORDER OF DEEDS
PARCEL CERTIFICATION $10.00
FEES
AFFORDABLE HOUSING $11.50
COUNTY ARCHIVES FEE $2.00
ROD ARCHIVES FEE $3.00
WEST SHORE SCHOOL $0.00
DISTRICT
LOWER ALLEN TOWNSHIP $0.00
TOTAL PAID $49.50
* Total Pages - 5
Certification Page
DO NOT DETACH
This page is now part
of this legal document.
I Certify this to be recorded
in Cumberland County PA
?y crt cuye? 1 /D
RECORDER O
ZDS
t?ao
* - Information denoted by an asterisk may change during
the verification process and may not be reflected on this page.
iuiuiauiiuiii
EXHIBIT C
ti
II, '
f
111111111111111
OOOOVE
ASSIGNMENT OF INSTALLMENT AGREEMENT OF SALE
THIS ASSIGNMENT OF INSTALLMENT AGREEMENT OF SALE is made this 4 7 day of
Oil 2009, and is from JANET W. HARTMAN and DANIEL J. HARTMAN, Co-Executrix
and Co-Executor of the Estate of Robert G. Hartman, Jr., as Assignor (and referred to hereinafter as
"Assignor"); and
JANET W. HARTMAN, an adult individual who resides at 605 Allen Street, New Cumberland,
Pennsylvania, as Assignee (and referred to hereinafter as "Assignee").
WITNESSETH:
WHEREAS, during his lifetime, Robert G. Hartman, Jr., by an Installment Agreement of Sale dated
24 October 1994 (a copy of which is attached hereto as Exhibit A), agreed to sell an undivided one-third
interest, as tenants in common, in real estate situate in Lower Allen Township, Cumberland County,
Pennsylvania, being known and numbered as 2101 Orchard Road, Camp Hill, Pennsylvania, to Hershey-
Philbin Associates, Inc.; and
WHEREAS, the said Robert G. Hartman, Jr., died on 9 November 2003 and the Register of Wills of
Cumberland County, Pennsylvania, subsequently appointed Assignor as the Co-Executrix and Co-
Executor of his estate; and
WHEREAS, to complete the settlement of the estate, and the distribution of assets and
liabilities, Assignor has decided to distribute to Janet W. Hartman the Installment Agreement of Sale
referred to above, and all of the rights, remedies, and responsibilities arising from said agreement, and
the parties wish to have their assignment reduced to writing.
NOW, THEREFORE, in consideration of the above recitals and of the assignment hereinafter set
forth, as well as for other good and valuable considerations, Assignor does hereby assign, transfer,
grant, convey, and set-over unto Assignee all of Assignor's right, title, and interest in the
aforementioned Installment Agreement of Sale, dated 24 October 1994, together with the real estate
interest which is the subject of said agreement, the right to receive payments and other benefits from
the agreement, and the duty and obligation to perform certain obligations and performances required
by said agreement.
I C_
1
AND FURTHER, Assignor shall make, execute, acknowledge and deliver a special warranty deed
transferring unto Assignee all of the interest held by Assignor and the said Robert G. Hartman, Jr., in the
real estate in Lower Allen Township, Cumberland County, Pennsylvania, which is the subject of the said
Installment Agreement of Sale.
IN CONSIDERATION of which, the Assignee agrees to be bound by and to perform all of the
duties, obligations, and performances required of the seller in the said Installment Agreement of Sale
and to indemnify and save Assignor harmless from any loss, cost, or expense caused to Assignor by
Assignee's failure to perform such matters when and as required.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first
above written.
ESTATE OF ROBERT G. HARTMAN, JR.
S2
A ss
D
ess
Witn
Jpnet W. Hartman, Co-Executrix
4t
Daniel J. Hart a , Co-Executor
ASSIGNEE:
?., "' Janet W. Hartman
COMMONWEALTH OF PENNSYLVANIA )
(SS.:
COUNTY OF CUMBERLAND )
On this, the ?o day of 2009, before me, a Notary Public, the undersigned officer, personally
appeared JANET W. HARTMAN, Co-Executrix of the Estate of Robert G. Hartman, Jr., known to me (or satisfactorily proven) to
be the person whose name is subscribed to the within instrument, and acknowledged that said person execut?xhe same for
the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal. ,'a .}
-41
??;? • ?-
`a
a
4 in
P
Notary Public
_V, i :.'?'? ;
COMMONWEALTH OF PENNSYLVANIA'
°'" '
NOTARIAL SEAL
LLYNN EHRENFELD, Notary Public
oyne Boro., Cumberland County
mmission Expires February 1, 2013
COMMONWEALTH OF PENNSYLVANIA )
( SS.:
COUNTY OF CUMBERLAND )
On this, the 6 day of -JtAL`y . 2009, before me, a Notary Public, the undersigned officer, personally
appeared DANIEL :T . HARTMAN, Co-Executor of the Estate of Robert G. Hartman, Jr., known to me (or satisfactorily proven)
to be the person whose name is subscribed to the within instrument, and acknowledged that said person execute"d the same
for the purposes therein contained.,
IN WITNESS WHEREOF, I hereunto set my hand and official seal..
Notary Public"
COMMONWEALTOF RENNSYLVA
L SEALi
LD, Notary Public
mberland County ?,; ,•.
s February 1, 2013 {`
COMMONWEALTH OF PENNSYLVANIA )
(SS.:
COUNTY OF CUMBERLAND )
On this, the ?o day of jtl? V1 2009, before me, a Notary Public, the undersigned officer, personally
appeared JANET W. HARTMAN, known to me (or satisfactorily proven) to be the person whose name is subscribed to the
within instrument, and acknowledged that said person executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
Notary Pub c A?
COMMONWEALTH OF PENNSYLVANIA 3'-
NOTARIAL SEAL
LYNN EHRENFELD, Notary Public y
;? ° •:0 "'Y
Lemoyne Boro., Cumberland County
Commission Expires Februa 1
20 `` } Y r
,
13
d' i
• r
INSTALLMENT AGREEMENT OF SALE
THIS AGREEMENT made as of the day of (Sl ???
1994 by.and between ROBERT G. HARTMAN, JR. of Cumberland County,
Pennsylvania, hereinafter referred to as "seller" and HERSHEY-
PHILBIN ASSOCIATES, INC. of Dauphin County, Pennsylvania, here-
inafter referred to as "buyer," WITNESSETH:
THAT, in consideration of the mutual covenants and agree-
ments hereinafter contained, seller agrees to sell and convey,
and buyer agrees to purchase,
ALL that certain tract or parcel of land in Lower Allen
S, GUIDO,
UFF &
3LAND
[arket Street
M11, PA
Township, Cumberland County, Pennsylvania, being a one-third
interest in the premises known and numbered as 2101 Orchard Road,
Camp Hill, Pennsylvania, and the curtilage as more particularly
described and set forth in Exhibit "A" attached hereto and
incorporated herein .by reference, upon the following terms and
conditions:
1. CONSIDERATION - The purchase price to be paid by.
buyer shall be the sum of $148,000, to be paid as follows:'
A. $14,800 in cash at the signing and delivery of
this agreement, the receipt whereof is hereby acknowledged;
B. The balance of $133,200, together with inter-
est at the rate of 7.5% per annum shall.be due and payable.within
fi e years from the date hereof. Commencing on the 1st day of
1994, and thereafter on the 1st day cif each
month, buyer shall make payments of $1,234.80 to be applied first
to interest as aforesaid and the balance to principal until both
principal and interest have been fully paid. Nothing herein con-
tained shall alter or affect the maturity date of this agreement.
1
2. PREPAYMENT - Buyer shall have the right to prepay
all or any part of the unpaid principal balance, without penalty
for such prepayment, at any time and from time to time on any
regular installment due date, together with interest on such
prepayment to the date of payment. At the time of payment in
full, together with interest as aforesaid, buyer shall be enti-
tled to receive title to the subject premises from seller, and
seller shall be obligated to convey title to the subject premises
to buyer in the manner-set forth hereinafter in Paragraph 9.
AS, GUIDO,
HUFF &
ASLAND
Market Street
mp Hill, PA
3. APPORTIONMENT OF REAL ESTATE TAXES RENTS AND
EXPENSES - Local real estate taxes shall be apportioned on a
fiscal year basis to the date of execution of this agreement.
Thereafter, real estate taxes shall be apportioned in conformity
to a tenants in common ownership agreement attached hereto as
Exhibit "B" and made a part hereof.
4. TRANSFER TAXES - Seller shall pay all state realty
transfer taxes calculated on the agreed consideration at the rate
applicable on the date of this agreement; buyer shall pay any
local transfer tax, any documentary tax, and any increases in the
rate of the state tax from that existing at the date of this
agreement. Said conveyance'stamps and taxes shall be furnished
or paid for at the time of delivery of the deed.
5. POSSESSION AND OCCUPANCY - Buyer shall be entitled
to possession of the third floor of the premises and an unspeci-
fied one-third, but not less than 20, of the parking spaces in
the parking areas adjacent to the premises upon execution of this
agreement in conjunction with the rights of the seller in said
parking areas.
6., RECORDING - This agreement may be filed of record
in any public office, as appropriate.
7. LEGAL TITLE - Upon payment in full, seller, his
heirs and assigns, is obligated to convey to buyer, its-heirs,
successors and assigns, legal title to the premises free and
clear of all liens, encumbrances and easements,.excepting the
following: existing building restrictions, ordinances, easements
of roads, privileges or rights of public service companies, if
any, agreements or like matters of record, and easements or
restrictions visible upon the ground, and a first mortgage to
Pennsylvania State Bank in the original amount of $238,400, which
obligation shall remain the obligation of seller without any
contribution by buyer. Otherwise, the title to the described
real estate shall be good and marketable, such as will be insured
by a licensed title insurance company at regular rates. Legal
title shall be conveyed by fee simple deed with a special war-
ranty.
In the event seller is unable to give a good and
marketable title such as will be insured by a licensed title
insurance company subject to the aforesaid, buyer shall have the
option-of.taking such title as seller can give, without abatement
of price, or of being repaid all moneys paid by buyer to seller
on account of.the purchase price, together with such reasonable
costs of searching the title as buyer may have incurred. In the
latter event, there shall be no further liability or obligation
as to either party concerning this agreement which thereafter
shall be null and void. Buyer shall be entitled to recover the
aforesaid costs of title search only if buyer obtained an attor-
ney's opinion of condition of title and notified seller of any
objections within thirty (30) days after date hereof,
CIS, GUIDO,
Erm &
ASLAND
Market Street
mp Hill, PA
8. MAINTENANCE, REPAIRS, INSURANCE AND TAXES - Buyer
agrees that buyer, at its own expense, will maintain the third
floor of the premises in a reasonable state of repair at all
times and will make any improvements to said premises without
contribution from the seller. Buyer agrees to make any and all
repairs to the third floor which, from time to time, become
necessary or are mandated by federal, state, county or municipal
law, ordinance or code in effect now or may become effective in
the future.
Common maintenance, repairs, insurance and taxes
relating to the premises as a whole shall be made in accordance
with the tenants in common ownership agreement.
9. IMPROVEMENTS.AND.ALTERATIONS No major improve-
ments or alterations shall be made to the premises without the
prior written consent of seller, which consent shall not be
withheld unreasonably. Buyer agrees that seller or seller's
agents shall have the right at all reasonable times of the day
and upon reasonable notice under the circumstances to enter the
premises for the purpose of inspection to determine whether buyer
has complied with the terms hereof.
In the event of buyer's default as to the terms of
this agreement, any and all improvements and additions made to
the subject premises shall be and remain a permanent part of the
premises; they shall not be removed by buyer and buyer will not
be entitled to any reimbursement therefor; nevertheless, if such
improvements, alterations or additions were made without the
written prior approval of seller, buyer will remove same within
thirty (30) days, upon written notice from seller so to do. In
the event of such notice to remove these items, buyer will repair
the surfaces from which such improvements were removed in confor-
mity with the surrounding surfaces.
10. STRUCTURAL CHANGES - No structural changes shall
be made to the.premis.s occupied by the buyer without the knowl-
edge and written consent of the seller.
IS, GUIDO,
TUFF &
,iSLAND
Karkec Strwt
ap Hill, PA
11. ASSIGNMENT OR SALE - This agreement may not be
assigned by buyer without the prior written approval of seller,
nor may the premises be sold by buyer by means of an-installment
sales agreement or comparable document without the prior written
approval of seller; provided that the premises purchased by buyer
may be sold in accordance with the Tenants in Common Ownership
Agreement.
12. WARRANTY AS TO CONDITION, USE OR OCCUPANCY -
The premises are being sold in "as is" condition and it is
understood that buyer has inspected the property or hereby waives
the right to do so, and that buyer has agreed to purchase the
property as the result of buyer's inspection and not because of
or in reliance on any representation made by the seller or
seller's agent. Seller makes no warranty or representation.as to
the conformity of any future use or occupancy of the subject
premises insofar as federal, state or local laws are concerned
relative to zoning, building or other laws, ordinances or codes.
In the event that buyer wishes-to obtain approval of a change of
use or occupancy, seller agrees to cooperate to any reasonable
degree in such application or request, providing all costs
associated therewith shall be borne by buyer.
13. CONDEMNATION - In the event of condemnation of the
subject premises or any portion thereof by any governmental
agency, public authority or utility prior to the payment of all
the within obligations from buyer to seller, the payment.of
damages for the "taking" shall be divided between the buyer and
the seller "as their respective interests then may appear."
14. DEFAULT - Any failure of the buyer to make payment
of any moneys required by this agreement within thirty (30) days
after the due date for.such payment, or any acts, or the perfor-
mance of any act forbidden by this agreement, or the failure to
perform any act required by this agreement, may constitute a
default, at the option of seller. In the case of default by
buyer, seller shall retain any and all moneys received under the
provisions of this agreement (whether on account of purchase
money or otherwise) as compensation for buyer's use and occupancy
of said premises.
15. CONFESSION OF JUDGMENT - In the event of default
of payment of any sum of principal or interest herein agreed to
be paid for the space of thirty (30) days after the same shall
become due and payable by the terms hereof, or the breach of any
other of the terms of this agreement, the whole of said principal
sum, at the option of seller, shall become due and payable
forthwith, anything hereinbef ore contained to the contrary....`
notwithstanding. In such case of default, buyer hereby author-
izes and empowers any attorney of any court of record in the
Commonwealth of Pennsylvania or elsewhere to appear for buyer and
confess a judgment for the entire principal sum and interest
remaining unpaid hereon, with 5% attorney's commission or fees,
hereby waiving the right of exemption and inquisition, so far as
the land herein described, and any property or building thereon
may be concerned. Said seller, at seller's option, among other
remedies available to seller, may proceed by Action of Ejectment
on this agreement after default made as aforesaid for the recov-
ery of said premises; in such case, buyer hereby authorizes and
empowers any attorney of any court of record in the Commonwealth
of Pennsylvania, or elsewhere, to appear for buyer and confess
judgment of ejectment, and authorizes the immediate issuing of a
Writ of Possession and Execution (without asking leave or court)
for the costs. and 5% attorney's commission or fees, waiving all
stay and exemption laws.
Prior to the entry of judgment by confession or-the
filing of an action of ejectment, seller shall give to buyer
written notice of default and seller's intention to proceed by
legal action, which notice shall provide a period of thirty (30)
days during which the buyer can correct the default.
16. RIGHT OF BUYER TO PAY LIENS -
.S, GUIDO,
LO &
.SLAND
Qarket street
p Hill, PA
.A. Notice - In addition to the aforementioned
mortgage to Pennsylvania State Bank, notice of the entry of any
mortgage, judgment, lien or other encumbrance affecting title to
said premises received by the seller after the date of the
execution of this agreement shall be given by the seller to the
buyer within thirty (30) days of the recording thereof in the
Cumberland County Court House.
B. Delinquent Payments - In the event any mort-
gage, judgment, lien. or other encumbrance affecting title to the
premises existing at the date of the execution of this agreement
or hereafter entered of record and default in the payment is made
by the seller, then buyer shall have the right to make the
delinquent payments and to receive credit for the full amount of
said payments made by the buyer and to deduct the amount thereof
from the required monthly payments under this agreement. Prior
to exercising the rights stated in this paragraph, buyer shall
give seller 48 hours notice by certified mail of his intent to do
so., but this provision shall not limit buyer's right to make the
delinquent payments and to claim credit therefor.
17. APPLICABLE LAW - In the event of any disagreement
or misunderstanding, the terms of this agreement shall be con-
strued pursuant to the laws of the Commonwealth of Pennsylvania
in effect at the time of the execution hereof and as they may be
amended subsequently.
S, GUIDO,
WFF &
.SLAND
Qarket Street
ip Hilt, PA
18. SELLER'S RIGHT TO SEVER BUYER'S INTEREST AS A UNIT
OF A CONDOMINIUM STRUCTURE - Seller, at any time during the five
year period. of this agreement, may elect to file documents with
the appropriate authorities to make the entire building and the
curtilage described on Exhibit "A" asa condominium structure and
to limit buyer's interest in the condominium to the third floor,
an undefined one-third of the applicable parking area and an
interest in the common elements of the building.
19. ENTIRE AGREEMENT - This document contains the
entire agreement between buyer and seller; there are no represen-
tations, warranties, covenants, terms or conditions, except as
specifically set forth herein.
. 20. TIME OF THE ESSENCE - It•is the agreement of the
parties hereto that time shall be of the essence.
21. BINDING AGREEMENT - This agreement shall extend to
and be legally binding upon the parties, their respective heirs,
executors, administrators and assigns..
22. WAIVER - The failure of either party to insist
upon strict enforcement of any provisions of this agreement shall
not constitute a waiver of the right to enforcement of that
provision or of any other provision.
23. DESCRIPTIVE HEADINGS - The descriptive headings
used herein are for convenience only and they are not intended to
indicate all of the matter in the sections which follow them.
Accordingly, they have no effect whatsoever in determining the
rights or obligations of the parties.
IN WITNESS WHEREOF, the parties have hereunto set their
hands and seals the day and year first above written.
WITNESS:
4, (SEAL)
obert G. Hartman, _j V.
ATTEST:
HERSHEY-PHILBIN ASSOCIATES, INC.
Secretar (SEAL)
President
IS, GUIDO,
IUFF &
?SLAND
vlarket Street
IP Hill, PA
COMMONWEALTH OF PENNSYLVANIA)
SS.
COUNTY OF CUMBERLAND)
I hereby certify that on this CS?i day of
/?
1994; before me, a notary public in and for the above county and
state, personally appeared '=/- '/'.
the
attorney named in the foregoing Indenture, and by virtue and in
pursuance of the authority therein conferred upon him, acknowl-
edged the said Indenture to be the act and deed of the said
Hershey-Philbin Associates, Inc.
WITNESS my hand and notarial seal the day and year afore-
said.
?
[,Q
otary Public
AS, GUIDO,
HUFF &
ASLAND
Market Street
mp Hill, PA
p IAL SEgL
THELMA S. MCCAUSLIN, Notary Public
Camp Hill, Cumberland County
MY Commission Fxplres July 3, 1996
EXHIBIT "A"
ALL that certain piece or parcel of land situate in Lower Allen
Township, Cumberland County, Pennsylvania, More particularly
bounded and described as follows, to wit:
BEGINNING at a point-in the middle of the township road leading
from Carlisle Road to Spring Lake Colony, said point being 30.11
feet west of the center line of Carlisle Road; thence by other
lands of Hartman, South 05 degrees 17 minutes West, 210.64 feet
to an iron pin; thence by lands now or formerly of Garver, South
83 degrees 16 minutes West, 200.00 feet to an iron pin; thence
still by other lands now or formerly of Garver, North 15 degrees
52 minutes West,.215.27 feet to a point in the center of the
aforesaid township road; thence by the middle of said road, north
84 degrees 39 minutes East, 278.02 feet to the point of
BEGINNING.
HAVING thereon erected a three story office building known and
numbered as 2101 Orchard Road, Camp Hill, Pennsylvania.
GUIDO,
FF &
1AND
ket Street
Ell, PA
13
ROBERT P. ZIEGLER
RECORDER OF DEEDS
CUMBERLAND COUNTY
1 COURTHOUSE SQUARE
CARLISLE, PA 17013
717-240-6370
Instrument Number - 200923631
Recorded On 7/8/2009 At 12:08:25 PM
* Instrument Type - ASSIGNMENT
Invoice Number - 47823 User ID - RAK
* Grantor - HARTMAN, JANET W
* Grantee - HARTMAN, JANET W
* Customer - ANDES
* FEES
STATE WRIT TAX $0.50
RECORDING FEES - $29.50
RECORDER OF DEEDS
PARCEL CERTIFICATION $10.00
FEES
COUNTY ARCHIVES FEE $2.00
ROD ARCHIVES FEE $3.00
TOTAL PAID $45.00
* Total Pages - 14
Certification Page
DO NOT DETACH
This page is now part
of this legal document.
I Certify this to be recorded
in Cumberland County PA
of cuy
° RECORDER O /DZDS
verso
* - Information denoted by an asterisk may change during
the verification process and may not be reflected on this page.
OOOOVE
11111111111111111111111111111
EXHIBIT D
NOTICE OF DEFAULT
TO: Hershey-Philbin Associates, Inc.
c/o Robert C. Saidis, Esquire
26 West High Street
Carlisle, PA 17013
You are hereby notified that you are in default of the Installment Agreement of Sale
between yourself and Robert G. Hartman, Jr., dated 24 October 1994. Pursuant to that
Agreement you were to make regular monthly installment payments of principal and interest in
the amount of $1,234.80. You have failed to do that in the following ways:
A. The payments due for the month of November and December of
2007 and January of 2008 were not paid until 30 March 2008. Those payments
were all at least sixty (60) days late.
B. The payment made for February of 2008 was not made until April of
2008.
C. The payment for the month of March of 2008 was not made until May
of 2008.
D. The payment due for the month of April of 2008 was not made until
late August 2008.
E. The payments due for the months of May, June, July, August, and
September of 2008 have not been made.
You are hereby notified that Janet Hartman, as the successor in interest to Robert G.
Hartman, Jr., has elected to treat the above failures to make timely payments as a default of
the agreement and that she hereby terminates the agreement,and your rights under it.
Further, you are notified that she intends to pursue her legal remedies, as set out in Paragraph
15 of the Agreement thirty (30) days after the date of this Notice.
Date: 19 September 2008
'S2. ?-1'0 0
el L. A es
Attorney for Janet Hartman, Seller
EXHIBIT E
ALL THAT CERTAIN tract or parcel of land in Lower Allen Township,
Cumberland County, Pennsylvania, being a one-third interest in the premises known and
numbered as 2101 Orchard Road, Camp Hill, Pennsylvania, and the curtilage as more
particularly described as follows:
BEGINNING at a point in the middle of the township road leading from Carlisle
Road to Spring Lake Colony, said point being 30.11 feet west of the center line of Carlisle
Road; thence by other lands of Hartman, South 05 degrees 17 minutes West, 210.64 feet to
an iron pin; thence by lands now or formerly of Garver, South 83 degrees 16 minutes West,
200.00 feet to an iron pin; thence still by other lands now or formerly of Garver, North 15
degrees 52 minutes West, 215.27 feet to a point in the center of the aforesaid township
road; thence by the middle of said road, North 84 degrees 39 minutes East, 278.02 feet to
the point of BEGINNING.
HAVING thereon erected a three story office building known and numbered as
2101 Orchard Road, Camp Hill, Pennsylvania.
JANET W. HARTMAN,
PLAINTIFFS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
HERSHEY-PHILBIN ASSOCIATES, INC.
DEFENDANT
NO. 08-7503 CIVIL
ORDER OF COURT
AND NOW, this 15th day of January, 2010, upon consideration of the Plaintiff's
Motion to file Amended Complaint,
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 5, 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,
Samuel L. Andes, Esquire
Attorney for Plaintiff
Mark Thomas, Esquire
Attorney for Defendant
bas
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M. L. Ebert, Jr., J. d
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JANET W. HARTMAN, IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V.
CIVIL ACTION -LAW
o
HERSHEY-PHILBIN ASSOCIATES, INC.,:
t-n -
NO. 08-7503
Defendant :CIVIL TERM M.
i
ANSWER TO PLAINTIFF'S C w c '?'
MOTION TO FILE AMENDED COMPLAINT w
1. Admitted.
2. Admitted. By way of further response, Plaintiff wrongfully averred that she was
the owner in fee simple of the entire property. The deed on which Plaintiff relied,
which was not attached to the original Complaint, only conveyed to her an
undivided two-third (2/3) interest in the property in question. The remaining
undivided one-third (1/3) interest was the property which was the subject matter
of the Installment Agreement. (A copy of the Deed conveying an undivided 2/3
interest in the property to Plaintiff is attached hereto as Defendant's Exhibit "A".)
3. Admitted in part; denied in part. It is admitted that Plaintiff has, since the entry of
judgment, taken steps to correct the record on which the Confession of Judgment
was entered. It is denied that these corrections made six (6) months after the entry
of judgment can validate a judgment entered on an erroneous and/or defective
record.
4. Denied. Although Pa. R.C.P. 1033 permits liberal amendment of pleadings, it is
denied that Pa. R.C.P. 1033 applies to this case wherein a judgment has already
been entered.
5. Denied. The existence of the judgment presently recorded is prejudicial to
Defendant, even if the judgment is invalid. To allow a judgment against
Defendant to continue on record when that judgment was erroneously entered
continues to work prejudice against Defendant.
WHEREFORE, Defendant, HERSHEY-PHILBIN ASSOCIATES, INC., prays that this
Honorable Court will deny Plaintiff's Motion to File Amended Complaint.
NEW MATTER
6. Answers 1 through 5 are incorporated herein as if set forth at length.
7. Since Plaintiff was not a party to the Installment Agreement which contained the
warrant of attorney relied upon by Plaintiff to confess judgment against the
Defendant, Plaintiff was required to establish on the record that Plaintiff was the
real party in interest.
8. The deed on which Plaintiff relied at the time judgment was entered by confession
did not establish that she was the real party in interest.
9. Only the real party in interest may enter a confession of judgment. Fourtees Co.
v. Sterling Equipment Corporation, 363 A.2d 1229 (Pa. Super. 1976).
10. The record on which the confession of judgment was entered was fatally defective
and that judgment should be stricken.
11. Plaintiff's complaint states facts upon which a judgment was entered against
Defendant. Those erroneous facts include more than a mere formal defect,
mistake or omission. The erroneous facts on which the judgment was entered
cannot support the judgment which was entered in reliance upon the validity of
those facts.
WHEREFORE, Defendant, HERSHEY-PHILBIN ASSOCIATES, INC., prays that this
Honorable Court will deny Plaintiff s Motion to File Amended Complaint.
Respectfully submitted,
R. Mark Thomas, Esquire,
Attorney No. 41301
101 South Market Street
Mechanicsburg, PA 17055
Telephone: 717-796-2100
Attorney for Defendant
CERTIFICATE OF SERVICE
I, R. Mark Thomas, Esquire, hereby certify that I have served a true and correct copy of
the within document on the following person by depositing a true and correct copy of the same in
the U.S. Mail at Mechanicsburg, Pennsylvania, First Class Postage pre-paid, addressed to:
Samuel L. Andes, Esquire
P. O. Box 168
Lemoyne, PA 17043
Date: February 5, 2010
R. Mark Thomas, Esq.
fide,
-#!3 -23-os?tq •!?
P.OEERT P. ZtEGLER
R:GORDER OF DEEDS
t;ulIBERLAND COUNTY-PA
SEe V I'?I 3 21
THIS DEEDS.
Made the Cf 'day of ? 19y`
BETWEEN ROBERT G. HARTMAN, JR., of Now Cumberland, Cumberland County,
Pennsylvania,
herein designated as the Grantor(s),
AND JANET W. HARTMAN. of New Cumberland, Cumberland County, Pennsylvania,
herein designated as the Grantee(s);
WITNESSETH, that the Grantors, for and in consideration of -------ONE (51.00) DOLLAR -------
------------- lawfid money of the United States of America to the Grantors in hand well and truly paid
by the Grantees, at or before the sealing and delivery of these presents, the receipt whereof is hereby
acknowledged and the Grantors being therewith fully satisfied, do by these presents grant, bargain, sell and
convey unto the Grantees forever,
TRACT NO. 1:
ALL T:;AT CERTAIN 2/3 TENANTS IN COMMON INTEREST in that tract or parcel
of land and premises, situate, lying and being in Lower Allen Township,
Cumberland County, Pennsylvania, more particularly described as follows, to
wit:
BEGINNING at a point in the middle of the township road leading from
Carlisle Road to Spring Lake Colony, said point being 30.11 feet west of
the center line of Carlisle Road; thence by Tract No. 2 hereinafter
described, South 05 degrees 17 minutes West, 210.64 feet to an iron pin;
thence by lands now or formerly of Garver, South 83 degrees 16 minutes
West, 200.00 feet to an iron pin; thence, still by other lands now or
formerly of Garver, North 15 degrees 52 minutes West, 215.27 feet to a
point in the center of the aforesaid township road; thence by the middle of
said road, North, 84 degrees 39 minutes East, 278.02 feet to the point of
BEGINNING.
HAVING thereon erected a building known as "Park Place' Office Building and
known and numbered as 2101 Orchard Road, Camp Hill, Pennsylvania.
THIS TRANSFER IS WHOLLY EXEMPT
FROM PENNSYLVANIA REALTY TRANSFER TAX
PURSUANT TO 51102-0.3(6)
PENNSYLVANIA REALTY TRANSFER TAX
ACT AND REGULATIONS
TRANSFER BETWEEN HUSBAND AND WIFE
ca. 146 ;A4', 684
oaf
Grantor sold a one-third (1/3) tenants in common interest, under
Installment Sale Agreement, dated October 24, 1994, to Hershey-Philbin
Associates, Inc. in which it provided that Hershey-Philbin would have the
exclusive use of the third floor of the foregoing premises.
TRA(`T NO. 2:
ALL THAT CERTAIN tract of land situate, lying and being in Lower Allen
Township, Cumberland County, Pennsylvania, more particularly bounded and
described as follows, to wit:
BEGINNING at a point in the center line of the township road known as
Orchard Road at the easterly line of Tract No. 1, hereinbefore dsscribed;
thence bin said center line of theStategHighway L.R. 21022; thence l byetheto
a point
latter line, South 37 degrees 36 minutes East, 10.30 feet to a point in
said center line; thence still along said center line, North a5 degrees 02
minutes East, 89.61 feet to a point on line of lands now or formerly of Ray
Garver; thence by the latter, South 24 degrees 06 minutes East, 141.16 feet
to a stake; thence by lands now or formerly of West Shore Driving Range,
South 24 degrees 06 minutes East, 66.94 feet to a stake; thence by tM
same. South 83 degrees 21 minutes West, 229.33 feet to a stake at the
easterly line of Tract No. 1, aforesaid; thence by the latter, North OS
degrees 17 minutes East, 210.64 feet to the place of BEGINNING.
BEING the same premises which Dauphin Deposit Bank and Trust Company, by
its deed dated April 19, 1994 and recorded in the office of the Recorder of
Deeds in and for Cumberland County, Pennsylvania in Record Book 104, Page
361, granted and conveyed unto Robert G. Hartman, Jr., Grantor herein.
TOGETHER with all and singular the buildings, improvemenu, ways, woods, wage; watercourses, rights,
liberties, privileges, herediranenu and appurtenances to the same belonging or in anywise apperurining; and
the reversion and reversions, remainder and remainder, renu, issues and profit thereof, and of every parr
and parcel thereof,, AND also all de estate. right, rule, interest. usG possession, popery, claim and
demand whauoever of the Grantors both in law and in equity; of, in and to the premises herein described
and every pan and parcel thereof uldt ilia appurtenances. TO HAVE AND TO HOLD all and
singular the premises herein described togedner with the heredhaments and appurtemmices unto the Grauees
and to Grantees' proper use and benefit forever.
M* 146' PACE 685
AND the Grantors, for themselves, their heirs, executors and administrators, do covenant, promise and
agree, to and with the said Grantee heirs and assigns, by these presents, that the said Grantor(s),
heirs, all and singular the heredita,ments and premises hereby granted or mentioned and intended so to be,
with the appur lances, unto the said Grantee, heirs and assigns, aganst them, the said Grantor(s) and
their heirs, and against all and every person and persons whomsoever lawfully claiming or to clam the
same or any part thereof, by, from or under him, her, them or any of them, shall and will. SUBJECT as
aforesaid, FOREVER SPECIALLY WARRANT AND DEFEND.
by all references herein to any parties, persons, entities or corporations, the use of any particular
gender or the plural or singular number is intended to include the appropriate gender or number as the test
of the within insimme nt may require.
Wherever in this instrument any party shall be designated or referred to by name or genera
reference, such designation is intended to and shall have the same effect as if the words heirs, executors,
administrators, personal or legal representatives, successors and assigns" had been inserted after each and
every such designation.
IN WITNESS WHEREOF, the Grantors have hereunto set their hands and seals, or if a corporation,
it has caused these presents to be signed by its proper corporate offlcers and its corporate sea to be affixed
hereto, the day and year first above written.
SIGNED, SEALED and DELIVERED
in the presence of
or ATTESTED by-
L ?
COMMONWEALTH OF PENNSYLVANIA, COUNTY OF Cuurn beH(4 d : C?
BE IT REMEMBERED, that on 5epkt n??ts+ Pp before me the subscriber personally
appeared ROBERT G. HARTmArt, JR., known to me (or satisfactorily proven) to be the person whose
name is subscribed to within deed and acknowledged that he executed the same for the purpose therein
contained !
WITNESS my hand and sea( the day and year afocresaid
OTARY PUBLJC
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Robert G. Hartman, Jr.
107/14/2008 3:22:33 PM CUMBERLAND COUNTY Inst.# 199627971 -Page 3 of 4
COXWONWEALTH OF PENNSYLVANIA, COUNTY OF : S.F.
BE IT REiVEMBERED, that on .19 , before me the subscriber personally
appeared who aclmowledged self to be the
of , a Corporation, and that being authorized to do so as such corporate officer evecirted
the foregoing instrument for the purposes therein contained on behalf of the corpora'".
WITNESS my hand and seal the day and year aforesaid
t
NOTARY PUBLIC
My Commission Expires:
(SEAL)
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07/14/2008 3:22:33 PM CUMBERLAND COUNTY Inst.# 199627971 - Page 4 of 4
FILET?-?r` i?F
i)F THE' °Fr?TK.,-N0 k9Y
JANET W. HARTMAN,
Plaintiff
vs.
2010 MAR -5 Pl 1: 40
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
cuv' i y
HERSHEY-PHILBIN ASSOCIATES, )
INC., ) NO. 08-7503 CIVIL TERM
Defendant
PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER
AND NOW comes the above-named Plaintiff by her attorney, Samuel L. Andes, and
makes the following Reply to the New Matter raised by Defendant in response to Plaintiff's
Motion to file Amended Complaint:
6. No answer required. To the extent an answer is required, Plaintiff incorporates
herein, by reference, the averments in her Motion to file Amended Complaint.
7. Denied as stated. Plaintiff was the real party in interest because, as the surviving
widow and heir of Robert Hartman, title to the property and all of the rights with regard to the
installment sale agreement passed to her by operation of law. Moreover, the averments set out
in Paragraph 7 of Defendant's New Matter, even if true, do not relate to, or prohibit, the
amendment of Plaintiff's Complaint. To the contrary, allowing Plaintiff to amend her
Complaint will place the appropriate facts before this court to make a determination on the
Defendant's petition to strike Plaintiff's judgment.
8. Denied for the reasons set forth in Paragraph 7 above, which are incorporated herein
by reference.
9. The statements in Paragraph 9 constitute a conclusion of law to which no factual
answer is required. To the extent that a factual answer is required, Plaintiff incorporates herein
the averments set forth in her Answer to Paragraph 7 above.
10. Denied. It is denied that the record on which the judgment was confessed was
fatally defective or that the judgment should be stricken. To the contrary, Plaintiff should be
permitted to amend her complaint to place into the record the information necessary for this
court to properly decide the Defendant's Petition to strike the judgment. The averments set
forth in the Answer to Paragraph 7 above are incorporated herein by reference.
11. Admitted in part and denied in part. It is admitted that Plaintiffs proposed amended
complaint states additional facts to support the judgment entered against the Defendant. It is
denied, however, that any of those facts are erroneous or include more than a mere "formal
defect, mistake or omission." Moreover, Defendant's disputes with the statements made in
Plaintiff s amended complaint are not grounds to deny Plaintiff the right to file an amended
complaint. In fact, all of the averments and claims made by Defendant in its New Matter do not
address the issue of Plaintiff's right to file an amended complaint but rather go to the ultimate
issue in the case which is not yet before this court.
WHEREFORE, Plaintiff prays this court to grant her leave to file the amended
complaint attached to her Motion so this matter can be properly determined by the court.
,? seems
Samuel L. Andes
Attorney for Plaintiff
Supreme Court ID # 17225
525 North 121' Street
P.O. Box 168
Lemoyne, PA 17043
(717) 761-5361
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).
Date:
anet W. Hartman
CERTIFICATE OF SERVICE
I hereby certify that I served a copy of the foregoing document upon counsel for the
Defendant herein by regular mail, postage prepaid, addressed as follows:
R. Mark Thomas, Esquire
101 South Market Street
Mechanicsburg, PA 17055
Date: 34 1c)
Amy M. kins
Secretary for Samuel L. Andes
PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and submitted In triplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Argument Court.)
CAPTION OF CASE
(entire caption must be stated in full)
JANET W. HARTMAN, Plaintiff
vs.
HERSHEY-PHILBIN ASSOCIATES, INC., Defendant
6'- //V-
(List the within matter for the next
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No. 08-7503 Civil Term
1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to
complaint, etc.):
Motion J-0 Rtrike and/or Q= Jud nt Cnr feGSion
2. Identify all counsel who will argue cases:
(a) for plaintiffs:
Samuel Andes, Esquire
P. O. Box 168, Lemoyne, PA 17043
(Name and Address)
(b) for defendants:
R. Mark Thomas, Esquire
(Name and Address)
101 South Market Street, Mechanicsburg, PA 17055
3. 1 will notify all parties in writing within two days that this case has been listed for
argument.
4. Argument Court Date: July 7, 2010
Date: June 17, 2010
Print your name
Defendant
Attomey for
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INSTRUCTIONS:
1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR
(not the Prothonotary) before argument
2. The moving party shall file and serve their brief 12 days prior to argument.
3. The responding party shall file their brief 5 days prior to argument.
4. If argument Is continued new briefs must be filed with the COURT
ADMINISTRATOR (not the Prothonotary) after the case is relisted.
R. Mark Thomas, Esquire
JANET W. HARTMAN, IN THE COURT OF COMMON PLEAS OF
PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA
V.
HERSHEY-PHILBIN
ASSOCIATES, INC.,
DEFENDANT NO. 08-7503 CIVIL
ORDER OF COURT
AND NOW, this 8th day of October, 2010, the Court having determined
that the deposition of Paul F. Baynum taken in the above referenced case on
December 17, 2009, is required to be considered in order to properly assess the
Petition to Strike or Open Judgment currently before this Court, accordingly;
IT IS HEREBY ORDERED AND DIRECTED that the parties will be given
until October 29, 2010, to supplement the record in this case by filing this
deposition with the Prothonotary.
By the Court,
)k-L
M. L. Ebert, Jr., J.
Samuel L. Andes, Esquire
Attorney for Plaintiff
? R. Mark Thomas, Esquire
Attorney for Defendant
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COPres,Ccd%/?? ?-
CrI
)RIPii',
JANET W. HARTMAN, IN THE COURT OF COMMON PLEAS
PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA
V .
CIVIL ACTION - LAW
HERSHEY-PHILBIN ASSOCIATES:
INC., : NO. 08-7503
DEFENDANTS : CIVIL TERM
DEPOSITION OF: PAUL P. BAYNUM
TAKEN BY: PLAINTIFF
BEFORE: TAMMY J. BAKER, REPORTER
NOTARY PUBLIC
DATE: DECEMBER 17, 2009, 1:05 P.M.
PLACE: LAW OFFICES OF R. MARK THOMAS
101 SOUTH MARKET STREET
MECHANICSBURG, PENNSYLVANIA
(APPEARANCES:
LAW OFFICE OF SAMUEL L. ANDES
BY: SAMUEL L. ANDES, ESQUIRE
FOR - PLAINTIFFS
LAW OFFICE OF R. MARK THOMAS
BY: R. MARK THOMAS, ESQUIRE
FOR - DEFENDANTS
RHOADS & SINON, LLP
BY: MICHAEL W. WINFIELD, ESQUIRE
FOR - PAUL P. BAYNUM AND ORRSTOWN BANK
2080 Linglestown Road • Suite 103 • Harrisburg, PA 17110
717.540.0220 9 Fax 717.540.0221 0 Lancaster 717.393.5101
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WITNESS
NAME
PAUL P. BAYNUM
BY: MR. THOMAS
BY: MR. ANDES
EXAMINATION
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EXHIBITS
BAYNUM EXHIBIT NO.
1. LETTER DATED 3/25/08
2. LETTER DATED 5/13/08
3. FAX DATED 3/26/08
PRODUCED AND MARKED
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STIPULATION
It is hereby stipulated by and between counsel
for the respective parties that reading, signing,
sealing, certification and filing are hereby waived; and
that all objections, except as to the form of the
question, are reserved to the time of trial.
PAUL P. BAYNUM, called as a witness, being
duly sworn, testified as follows:
MR. THOMAS: This is the matter of Janet W.
Hartman versus Hershey-Philbin Associates, Inc., it's
indexed at number 08 dash 7503 in the Cumberland County
Court of Common Pleas. We're here today, December 17th,
2009 for the deposition of Paul Baynum.
And everyone go around the table and
introduce themselves and who they represent. Start with
me, I'm Mark Thomas, I represent the Hershey-Philbin
Associates, the Defendants in this matter.
MR. ANDES: My name is Samuel Andes, I
represent the plaintiff, Janet W. Hartman.
MR. WINFIELD: I'm Michael Winfield of
Rhoads & Sinon and I'm here representing the witness and
Orrstown Bank.
THE WITNESS: And I'm Paul Baynum and I work
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for Orrstown Bank.
BY MR. THOMAS:
Q. Mr. Baynum, the purpose of this deposition is for
me to ask you questions concerning loan applications
that were made with Orrstown Bank by Scott Hershey,
Robert Philbin and Hershey-Philbin Associates. I'm
going to be asking you questions about what transpired.
And for purposes of the deposition I would just
ask that first of all you make sure you understand my
question before you give an answer. It would not be
unlike me to ask a question that you didn't understand,
so if that happens, just ask me to repeat it and I'll
make sure you do understand it.
If you do understand it -- if you do answer the
question, I'm going to assume that you understood the
question.
Now, one more thing, the court reporter is
taking down verbal questions and responses, so whenever
you answer a question, if you would verbalize that
answer it will make it much easier on the court reporter
to be able to --
A. I will.
Q. -- transcribe that.
A. Okay.
Q. All right. Mr. Baynum, would you state your full
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name and spell your last name for the record?
A. Sure. It's Paul Parker Baynum, B-A-Y-N-U-M.
Q. And Mr. Baynum, where are you employed?
A. Orrstown Bank.
Q. And in what capacity are you employed there?
A. I'm a business development officer. Vice
president, business development officer and regional
senior loan manager out of the Carlisle office.
Q. And were you so employed during the year 2008?
A. I was.
Q. During the course of your employment in that
capacity with Orrstown Bank, did you have any dealings
with Scott Hershey and Robert Philbin together?
A. I did.
Q. Okay. And how did it come about that you had any
dealings with them?
A. They were referred to me by one of my clients to
talk to them and see if we could help them out on a
loan.
Q. What kind of loan was that discussion about?
A. They were interested in terming out a line of
credit that they had at another financial institution
and seeing if there was a way that we could do that.
Q. So would it be fair to characterize it as a
commercial loan?
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A. Yes.
Q. Okay. And would they have been required to fill
out a loan application?
A. We do not do formalized loan applications for
commercial loans; so no.
Q. All right. Who was to be the borrower of -- in
this proposed loan transaction?
A. The loan is to Hershey-Philbin Associates, Inc.
Q. I notice on one of the documents that I have
there's reference to a to be formed entity. Do you know
whether or not there was an entity known as
Hershey-Philbin Associates, Inc., at the time the loan
application was made?
A. There was an entity Hershey-Philbin Associates,
Inc. The to be formed was if they were going to own the
real estate under another entity.
Q. I understand.
A. Which often times happens.
Q. And what was the amount of the loan that was
requested?
A. The original request was $250,000. Subsequently
we received an appraisal and the loan amount was
increased to $251,250.
Q. And I believe you started to answer this a minute
ago, what was the purpose or for what purpose were the
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loan proceeds to be used?
A. My understanding was it was to pay off the
remaining balance under the sales agreement with the
owner of the real estate and the balance was to term out
a line of credit that they had at another bank.
Q. And do you recall whether -- I'm looking at --
well, let me just introduce this now instead of me
referring to it as a document.
(Letter dated March 25, 2008, produced and
marked Baynum Exhibit No. 1.)
BY MR. THOMAS:
Q. Mr. Baynum, I'd like you to take a look at the
document that has just been marked as Baynum Exhibit No.
1. Can you identify that document?
A. It's the bank's commitment letter that was issued
to the borrower.
Q. All right. And if you look there on the first
page there's a subtitle use of loan proceeds and you had
mentioned that the purpose of the loan proceeds were to
refinance the existing installment sales agreement with
the seller of the real estate and also to pay off a line
of credit at PNC and it says and working capital.
I assume it would be fair to say that a portion
of the loan proceeds were to be just working capital for
the business operations of Hershey-Philbin Associates,
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is that correct?
A. Yes .
Q. Now, did you take steps to determine the credit
worthiness of Scott Hershey, Robert Philbin and
Hershey-Philbin Associates?
A. Yes, we did.
Q. And I -- and that document that I presented to
you there as Baynum Exhibit 1, is that a loan commitment
letter?
A. It is .
Q. Tell me if I'm wrong, but I assume that you
determined that they were creditworthy and therefore you
issued that loan commitment letter?
A. That's correct.
Q. Now, that loan commitment letter, there are
conditions attached to that loan commitment letter, are
there not?
A. Yes, there are.
Q. And with respect to the collateral, what is the
condition as set forth on that loan commitment letter
with regard to collateral?
A. That we would have a first lien on 2101 Orchard
Road, Suite 3, Camp Hill, Pennsylvania.
Q. And could you tell us at least from your
perspective what your understanding was with regard to
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Suite 3?
A. My understanding was that there was a balance
remaining under an installment sales agreement with the
owner of the real estate and that upon payment of that
balance due, the borrowers, Hershey-Philbin Associates,
would own that unit, Suite 3, so that the bank could
take a lien position against that.
Q. Okay. So the intent of the bank, if I understand
you correctly, was that they would be in a first lien
position with regard to Suite 3 only as it was located
on the real estate?
A. Correct.
Q. And did you have an appraisal performed with
regard to Suite 3?
A. We did.
Q. And what was the appraised value according to the
appraisal?
A. $335,000.
Q. And does that appraisal have a date on it?
A. It does.
Q. What's the date?
A. As of March 5th, 2008.
Q. Did you subsequently learn that there was no
separate property interest known as Suite 3 concerning
this particular real estate?
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A. Yes.
Q. Could you tell us if -- as best you recall, how
did you learn that there was no Suite 3 that was a
separate property?
A. My recollection is that we asked for title
insurance on the property and that the title insurance
issuer came back and told us that it would be -- that it
was not an installment sale agreement that would have
been able to give the bank a first lien position on that
suite.
Q. On that suite?
A. Yes.
Q. Who was the title insurance issuer?
A. Saidis, Flower and Lindsay in Carlisle.
Q. Now, just to try to clarify, was it your
understanding as provided to you from Scott Hershey and
Robert Philbin that they were purchasing a condominium?
A. Yes.
Q. And if I understood your answer correctly, what
you found out from the firm that was doing the title
insurance work was that there was no condominium?
A. A condominium agreement had apparently not been
filed was what I was told.
Q. All right. Do you know whether, in fact, there
was a condominium known as Suite 3 at 2101 Orchard Road
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A. I don't know.
Q. You still don't know?
A. I still -- I don't know.
Q. Okay. Let me back up here. Are you telling me
that you don't know if there was a Suite 3 condominium
unit at any time?
A. I know there was a Suite 3. Whether or not it
was officially a condominium unit, I am not aware one
way or the other.
Q. Okay. Well, what happened with regard to the
loan commitment when you were advised that the agreement
did not provide for the sale of a condominium unit?
A. The original approach was that there would be a
true condominium agreement put into place and that if
that did, in fact, occur before the expiration of the
commitment letter, we would continue with our
commitment.
If that could not be reached and the bank could
not get a lien, I believe first lien against that unit,
that the loan would not go through.
(Letter dated May 13, 2008, produced and
marked Baynum Exhibit No. 2.)
BY MR. THOMAS:
Q. Before you take a look at Exhibit No. 2, let me
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just cross out that line.
The loan commitment letter dated March 25, 2008
which we had previously discussed as Baynum Exhibit No.
1, was that loan commitment of that date subsequently
canceled?
A. It was modified.
Q. Modified?
A. Yes.
Q. Take a look at Baynum Exhibit No. 2. Can you
identify that?
A. It's the modified commitment letter, modification
of the earlier commitment letter.
Q. Okay. What's the date on that modified
commitment letter?
A. May 13, 2008.
Q. Again, would you take a look at the collateral
that's identified which is a condition for the modified
commitment letter?
A. Yes.
Q. What does it state there as far as collateral?
A. Satisfactory lien on 2101 Orchard Road, Camp
Hill, Pennsylvania, indicating an overall loan-to-value
of no more than 75 percent.
MR. ANDES: Where are you reading from,
which paragraph? Okay. I see. I'm sorry.
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THE WITNESS: This mortgage will be
transferred to Suite 3 upon completion of a condominium
agreement.
BY MR. THOMAS:
Q. Okay. Now, the language there says a
satisfactory lien on 2101 Orchard Road, Camp Hill. What
would the bank have considered to have been a
satisfactory lien on 2101 Orchard Road, Camp Hill?
A. If I recall correctly -- and I think I do -- the
thought was that we would take a lien against the entire
property, indicating that all other bank liens that
would be superior to ours, plus our lien, would lead to
a loan value not to exceed 75 percent and that upon
completion of the condominium-ization of that property,
we would then move our mortgage to Suite 3 only.
Q. Okay. All right. Now, in order for you to
obtain a satisfactory lien against the entire property,
who would have to -- I'm assuming that lien would be in
the form of a mortgage?
A. Yes.
Q. Who would have to execute the mortgage?
A. All valid owners of that property.
Q. And were the borrowers ever able to provide you
with the satisfactory lien that you referred to in your
commitment letter?
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A. No.
Q. Did the bank perform an appraisal on the real
property, itself, at 2101 Orchard Road, Camp Hill?
A. No.
Q. Would the bank have accepted a lien on the
undivided one-third interest in the property which the
borrowers would have acquired had they been provided the
loan proceeds?
Assuming that the borrowers -- assuming that the
borrowers borrowed the money from the bank and they were
only able to purchase a one-third interest -- an
undivided one-third interest in the real property, would
the bank have accepted a lien just as to that undivided
one-third interest as collateral for the loan?
MR. WINFIELD: I'm going to offer an
objection that it asks for speculation as to what the
bank may or may not have done under circumstances not
present here.
With that objection on the record, you can
go ahead and answer, if you can.
THE WITNESS: I guess I'm not exactly sure
what you mean by an undivided one-third interest.
BY MR. THOMAS:
Q. Well, the borrowers sought to acquire a one-third
ownership interest in the entire property. Had they had
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a one-third -- undivided one-third ownership interest in
the property, would that have been a property that the
bank would have considered putting a lien on with regard
to satisfying the collateral requirement?
A. Would have considered, yes. However, without
knowing the position of the intervening liens from
anybody else that may have had mortgages against that
property, we would have needed to be in a proper
loan-to-value when aggregating all of those mortgages
for us to be able to do that.
Q. Did anyone, particularly the borrowers, ever try
to provide you with information for you to make that
determination?
A. No.
Q. The loan commitment letter dated May 13, 2008,
was that loan commitment letter at any time canceled by
the bank?
A. It had an expiration date under which it just
expired.
Q. And that expiration date would have been based
upon the number of days from the date of the loan
commitment letter?
A. That's correct.
Q. What would have been the number of days?
A. Sixty days. I'm sorry, 30 days.
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Q. Okay. After the loan commitment letter expired,
did the borrowers ever again attempt to renegotiate a
loan with Orrstown Bank for the same purposes?
A. No.
MR. THOMAS: That's all I have.
MR. ANDES: I have a couple questions.
Q. Do you have a copy of the appraisal of the
property here?
A. I do.
Q. I take it you've looked at the appraisal, it
identifies -- first of all it's by George C. Clouser and
identifies the unit as a third floor condominium unit.
Have you ever seen documents in any written form that
indicate that the interest owned by Hershey-Philbin, the
corporation, or either of these gentlemen, were, in
fact, a condominium?
A. Are you asking me if I saw a condominium
agreement?
Q. Yeah, any document, a condominium agreement or
plans or anything else that would indicate it was a
condominium?
A. As I'm sitting here now I don't recall that, no.
Q. Did you ask anyone if it was a condominium or did
someone volunteer that information to you, that it was a
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condominium, or did you just conclude it was?
A. Well, I wouldn't have just concluded it was. I'm
sure that the borrowers told me that upon paying the
balance that they owed under the agreement that they
would have a separate unit.
Q. Okay. And you took that to mean a condominium
unit; a separate unit would have to be a condominium
unit, that's what you thought?
A. I did.
Q. Did you tell anyone at Clouser's office that it
was a condominium?
A. Well, I don't have direct contact with the
appraiser ever.
Q. Okay. Stacey Beiler probably would have?
A. I'm sure in that appraisal there's a copy of her
engagement letter that would state that.
Q. I'll let you look for it. Maybe you'll know
where it's at. If it's not in the appraisal perhaps
it's in your file?
A. It wouldn't be in my file typically, no, and I'm
not seeing it in the appraisal. I don't see it here.
Q. Okay. You said that at one point -- at some
point you learned that there was no separate property.
Do you know when that was? You indicated that was when
the title insurance issuer, Saidis, Flower and Lindsay
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reported that to you, but can you give me a date, an
approximate date?
A. I can't.
Q. Would you have received that notification in
writing? Would you have received a title binder or
letter or anything of the sort?
A. I have a preliminary title binder here dated
3/25/08.
Q. Can I take a look at that?
A. You bet.
Q. Thank you. This simply identifies the property
as 2101 Orchard Road, Camp Hill, Lower Allen Township,
Cumberland County. It does not identify it as a portion
of that property or a unit of that property, would you
agree? I'm looking at the third page.
A. It appears to be that way, yes.
Q. And if you'll turn to the next page, I think it's
the next page, it indicates the conditions that have to
be satisfied and one of those is a deed and what does it
state in that paragraph?
A. Document satisfactory to us creating the interest
in the land and the mortgage to be insured must be
executed, delivered and recorded. A, deed from Janet W.
Hartman, single person, to Hershey-Philbin. B, mortgage
to be properly executed by Hershey-Philbin in favor of
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Orrstown Bank to secure the proposed loan in the amount
of 250,000.
Q. Now if you turn back to the preceding page there
is, I believe, a legal description of the property?
Does that mention anything about a condominium or a unit
or one-third interest?
A. Not that I see.
Q. But when you initially undertook this
application, it was from the information -- from the
information you had it was your understanding -- strike
that.
Was it your understanding that they owned the
entire building or something less than the entire
building?
A. Something less.
Q. Okay. And your understanding was that it was a
condominium that they owned?
A. It was.
Q. Okay. Could we have a copy of that, would it be
possible?
A. Yes.
Q. We will identify it when we get it as Baynum No.
3 if that is satisfactory.
After the second commitment letter, did you
receive any other communications from a title company or
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a title agency regarding title insurance?
A. I believe I did.
Q. And do you have a copy of that?
A. It was on the phone, I believe.
Q. okay. And do you know about when that was
relative to your commitment letter that was dated May
13? I assume it was after that?
A. I don't know if it was after or before.
Q. And do you remember the substance of that
communication?
A. The substance was that we were not going to be
able to have a valid first lien on the property that we
thought we would have a valid first lien on.
Q. And do you remember who that communication was
f rom?
A. I believe it was Bob Saidis.
Q. And was he telling you that in regard to the
first commitment letter which was to have a first lien
on their one-third interest or this Unit 3 or was it in
connection with the second concept, which is that you
would have a lien on the entire building?
A. I'm pretty...
Q. I understand.
A. My understanding -- my memory is it was the
first.
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14
15
16
17
18
19
20
21
22
23
24
25
Q. Okay. After the second commitment letter, did
you receive any other communication indicating that
title insurance could not be or would not be issued?
A. I had communication, not written.
Q. And from whom was that?
A. Again I believe it was Bob Saidis.
Q. And what was the substance of that communication?
A. That there was no condominium agreement in place
and that unless one were put into place we would not
have a valid lien position.
Q. Okay. And that's the last you heard then
regarding the second commitment letter?
A. Again, I don't remember if that conversation
occurred prior to or after. There was only a minor
change on the second commitment letter of amending the
dollar amount. He would have begun the process of
getting title insurance prior to that.
Q. Well, the second commitment letter had a minor
change to the collar amount, but it had significant
changes to the collateral, is that correct?
A. Yes.
Q. Because it would have required people other than
Hershey, Philbin and their corporation to sign a
document and, in fact, give you a security interest or a
mortgage in their property?
22
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A. Yes.
Q. Did you ever hear from the other owners?
A. No.
Q. Anyone on their behalf?
A. Not that I recall.
Q. And you don't recall, except possibly the phone
call from Bob Saidis or one of the phone calls, you
don't recall receiving any further communication in
response to commitment letter No. 2?
A. I do not.
Q. It just expired?
A. Yes.
Q. Okay.
MR. ANDES: That's all the questions I have.
Thank you very much.
MR. THOMAS: I have no follow-up questions.
(Fax dated March 26, 2008, produced and
marked Baynum Exhibit No. 3.)
(Whereupon, the deposition was concluded at
1:35 p.m.)
23
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4
5
6
7
8
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I 25
COUNTY OF DAUPHIN
SS
COMMONWEALTH OF PENNSYLVANIA :
I, Tammy J. Baker, a Notary Public, authorized to
administer oaths within and for the Commonwealth of
Pennsylvania, do hereby certify that the foregoing is
the testimony of PAUL P. BAYNUM.
I further certify that before the taking of said
deposition, the witness was duly sworn; that the
questions and answers were taken down stenographically
by the said Reporter-Notary Public, and afterwards
reduced to typewriting under the direction of the said
Reporter.
I further certify that the said deposition was taken
at the time and place specified in the caption hereof.
I further certify that I am not a relative or
employee or attorney or counsel to any of the parties,
or a relative or employee of such attorney or counsel,
or financially interested directly or indirectly in this
action.
I further certify the said deposition constitutes a
true record of the testimony given by the said witness.
IN WITNESS WHEREOF, I have hereunto set my hand this
30th day of December, 2009. /
A/
!ONY MTH OF PENNSYLVANIA
Noterial - Vuub _____
J. Baker, NotryPublic Tammy ker,Reporter
Fairview Twp., York County N O t a r 1 C
Commission Exaln» Nov. 7l, 2012 1
r
?
?
t
1
r?
Multi-Page
$250,000 - creditworthy
PAUL P. BAYNUM
$250,000[11 6:21
$251,250[l] 6:23
$335,000 [1] 9:18
& [2] 1:23 3:23
-0-
08 [11 3:13
08-7503 [1l 1:6
-1-
1 [s] 2:14 7:10
7:14 8:8 12:4
101 [1] 1:14
11 [1l 2:15
13 [41 11:22 12:15
15:15 20:7
16 [1] 2:5
17 [1] 1:12
17th [1l 3:14
1:05 [1l 1:12
1:35 [1l 22:20
-2-
2[51 2:15 11:23
11:25 12:9 22:9
2008 [s] 5:9 7:9
9:22 11:22 12:2
12:15 15:15 22:17
2009 [3] 1:12 3:15
23:23
2101 ul 8:22 10:25
12:21 13:6 13:8
14:3 18:12
22 [1] 2:16
25 [2] 7:9 12:2
250,000 [1] 19:2
26 [11 22:17
-3-
3 [17] 2:4 2:16
8:23 9:1 9:6
9:10 9:14 9:24
10:3 10:25 11:6
11:8 13:2 13:15
19:23 20:19 22:18
3/25/08 [2] 2:14
18:8
3/26/08 [1] 2:16
30 [1l 15:25
30th [1] 23:23
-5-
5/13/08 [1] 2:15
5th [1] 9:22
-6-
[11 2:14
-7-
75 [21 12:23 13:13
7503 [113:13
-A-
able [6] 4:21 10:9
13:23 14:11 15:10
20:12
accepted [2] 14:5
14:13
according [1] 9:16
acquire [1] 14:24
acquired [1l 14:7
ACTION [1l 1:4
action [1l 23:19
administer [11 23:4
advised [1l 11:12
afterwards [1l 23:10
Again [31 12:16
21:6 21:13
again [1] 16:2
against [s] 9:7
11:20 13:10 13:17
15:7
agency [1l 20:1
aggregating [1l 15:9
ago [1l 6:25
agree [1l 18:15
agreement [121 7:3
7:20 9:3 10:8
10:22 11:12 11:15
13:3 16:19 16:20
17:4 21:8
ahead [1l 14:20
Allen [1] 18:12
amending [11 21:15
amount [s] 6:19
6:22 19:1 21:16
21:19
ANDES [sl 1:17
1:18 2:5 3:20
12:24 16:6 16:7
22:14
Andes [1l 3:20
answer [7] 4:10
4:14 4:19 4:20
6:24 10:19 14:20
answers [1] 23:9
APPEARANCES [1]
1:16
application [31 6:3
6:13 19:9
applications [21
4:4 6:4
appraisal [1o] 6:22
9:13 9:17 9:19
14:2 16:8 16:11
17:15 17:18 17:21
appraised [1l 9:16
appraiser [1] 17:13
approach [1] 11:14
approximate [1l
18:2
asks [1l 14:16
ASSOCIATES [1]
1:6
Associates [91 3:12
3:19 4:6 6:8
6:12 6:14 7:25
8:5 9:5
assume [41 4:15
7:23 8:11 20:7
Assuming [1l 14:9
assuming [21 13:18
14:9
attached [1] 8:16
attempt [1] 16:2
attorney [21 23:16
23:17
authorized [1] 23:3
aware [11 11:9
-B-
B [1] 18:24
B-A-Y-N-U-M [1]
5:2
BAKER [1] 1:10
Baker [21 23:3
23:25
balance [s] 7:3
7:4 9:2 9:5
17:4
BANK [1l 1:25
Bank U] 3:24 4:1
4:5 5:4 5:12
16:3 19:1
bank [14] 7:5
9:6 9:8 10:9
11:19 13:7 13:11
14:2 14:5 14:10
14:13 14:17 15:3
15:17
bank's [1l 7:15
based [11 15:20
BAYNUM [61 1:8
1:25 2:3 2:13
3:8 23:6
Baynum [1s] 3:15
3:25 4:3 4:25
5:2 5:3 7:10
7:12 7:13 8:8
11:23 12:3 12:9
19:22 22:18
begun [1] 21:16
behalf [1l 22:4
Beiler [1] 17:14
best [1] 10:2
bet [1l 18:10
between [11 3:2
binder [2] 18:5
18:7
Bob [3] 20:16 21:6
22:7
borrowed [1] 14:10
borrower [21 6:6
7:16
borrowers [91 9:5
13:23 14:7 14:9
14:10 14:24 15:11
16:2 17:3
building [3] 19:13
19:14 20:21
business [3l 5:6
5:7 7:25
-C-
C [1l 16:12
calls Ill 22:7
Camp Ul 8:23
11:1 12:21 13:6
13:8 14:3 18:12
canceled [21 12:5
15:16
capacity [2] 5:5
5:12
capital [2] 7:22
7:24
caption [1] 23:14
Carlisle [21 5:8
10:14
certification [1]
3:4
certify [sl 23:5
23:7 23:13 23:15
23:20
change [2] 21:15
21:19
changes [1] 21:20
characterize [1]
5:24
circumstances [1]
14:17
CIVIL [2] 1:4
1:7
clarify [11 10:15
clients [11 5:17
Clouser [1] 16:12
Clouser's [1l 17:10
collar [1] 21:19
collateral Ul 8:19
8:21 12:16 12:20
14:14 15:4 21:20
commercial [2] 5:25
6:5
commitment [28]
7:15 8:8 8:13
8:15 8:16 8:23
11:12 11:17 11:18
12:2 12:4 12:11
12:12 12:14 12:18
13:25 15:15 15:16
15:22 16:1 19:24
20:6 20:18 21:1
21:12 21:15 21:18
22:9
COMMON [1] 1:1
Common [11 3:14
COMMONWEALTH
[11 23:2
Commonwealth [1]
23:4
communication [6]
20:10 20:14 21:2
21:4 21:7 22:8
communications [1]
19:25
company [1] 19:25
completion [2] 13:2
13:14
concept [1] 20:20
concerning [21 4:4
9:24
conclude [11 17:1
concluded [21 17:2
22:19
condition [21 8:20
12:17
conditions [2] 8:16
18:18
condominium [22]
10:17 10:21 10:22
10:25 11:6 11:9
11:13 11:15 13:2
16:13 16:17 16:18
16:20 16:22 16:24
17:1 17:6 17:7
17:11 19:5 19:17
21:8
condominium-ization
[11 13:14
connection [1] 20:20
considered [3] 13:7
15:3 15:5
Constitutes [1] 23:20
contact [11 17:12
continue [1] 11:17
conversation [1]
21:13
Copy [41 16:8 17:15
19:19 20:3
corporation [21 16:16
21:23
Correct [1] 9:12
correct [4] 8:1
8:14 15:23 21:20
Correctly [3] 9:9
10:19 13:9
counsel [3] 3:2
23:16 23:17
COUNTY [21 1:2
23:1
County [2] 3:13
18:13
couple [11 16:6
course [1] 5:11
COURT [1] 1:1
Court [1] 3:14
court [214:17 4:20
creating [11 18:21
credit [4] 5:22
7:5 7:22 8:3
creditworthy [1]
8:12
Index Page 1
HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101
cross - mean
PAUL P. BAYNUM
Multi-Page 1M
cross Ill 12:1
CUMBERLAND [1l
1:2
Cumberland [2]
3:13 18:13
-D-
dash [11 3:13
DATE [1l 1:12
date [9] 9:19 9:21
12:4 12:13 15:18
15:20 15:21 18:1
18:2
DATED [3] 2:14
2:15 2:16
dated [7] 7:9
11:22 12:2 15:15
18:7 20:6 22:17
DAUPHIN [11 23:1
days [41 15:21 15:24
15:25 15:25
dealings [21 5:12
5:16
DECEMBER [1l
1:12
December [21 3:14
23:23
deed [2] 18:19 18:23
DEFENDANTS [2]
1:7 1:22
Defendants [1] 3:19
delivered [1l 18:23
DEPOSITION [1]
1:8
deposition [71 3:15
4:3 4:8 22:19
23:8 23:13 23:20
description [1l 19:4
determination [11
15:13
determine [11 8:3
determined [1] 8:12
development [21
5:6 5:7
direct [11 17:12
direction [1] 23:11
directly [11 23:18
discussed Ill 12:3
discussion [1l 5:20
Document [11 18:21
document [61 7:8
7:13 7:14 8:7
16:20 21:24
documents [21 6:9
16:14
dollar [1l 21:16
done [1l 14:17
down [21 4:18
23:9
due [11 9:5
duly [21 3:9 23:8
During [11 5:11
during [1l 5:9
-E-
easier [11 4:20
either 111 16:16
employed [3] 5:3
5:5 5:9
employee [2] 23:16
23:17
employment [1l
5:11
engagement [1] 17:16
entire [6] 13:10
13:17 14:25 19:13
19:13 20:21
entity [41 6:10
6:11 6:14 6:16
ESQUIRE [31 1:18
1:21 1:24
estate [6] 6:16
7:4 7:21 9:4
9:11 9:25
exactly [11 14:21
EXAMINATION [1]
2:2
exceed [11 13:13
except [2] 3:5
22:6
execute [11 13:21
executed [21 18:23
18:25
EXHIBIT [11 2:13
Exhibit [s] 7:10
7:13 8:8 11:23
11:25 12:3 12:9
22:18
EXHIBITS [11 2:12
existing [11 7:20
expiration [3] 11:16
15:18 15:20
expired [3] 15:19
16:1 22:11
-F-
fact [4] 10:24 11:16
16:17 21:24
fair [21 5:24 7:23
far [1] 12:20
favor [11 18:25
FAX Ill 2:16
Fax [11 22:17
file [2] 17:19 17:20
filed [1] 10:23
filing [11 3:4
fill [11 6:2
financial [1l 5:22
financially [11 23:18
firm [11 10:20
first [1214:9 7:17
8:22 9:9 10:9
11:20 16:12 20:12
20:13 20:18 20:18
20:25
floor [1] 16:13
Flower [2] 10:14
17:25
follow-up [1] 22:16
follows [11 3:9
foregoing [1l 23:5
form [3] 3:5 13:19
16:14
formalized [1l 6:4
formed [2] 6:10
6:15
forth [1] 8:20
found [11 10:20
full [1] 4:25
-G-
gentlemen [11 16:16
George [1] 16:12
given [1l 23:21
guess [1] 14:21
-H-
hand [1123:22
HARTMAN [?]
1:1
Hartman [31 3:12
3:21 18:24
hear[t] 22:2
heard [1l 21:11
help [1l 5:18
hereby [31 3:2
3:4 23:5
hereof [11 23:14
hereunto [1] 23:22
Hershey [s] 4:5
5:13 8:4 10:16
21:23
HERSHEY-PHH.BIN
[11 1:5
Hershey-Philbin [121
3:12 3:18 4:6
6:8 6:12 6:14
7:25 8:5 9:5
16:15 18:24 18:25
Hill [71 8:23 11:1
12:22 13:6 13:8
14:3 18:12
-I-
ide-itified [1] 12:17
identifies [31 16:12
16:13 18:11
identify [41 7:14
12:10 18:13 19:22
INC [11 1:6
Inc [4] 3:12 6:8
6:12 6:15
increased [1] 6:23
indexed [11 3:13
indicate [21 16:15
16:21
indicated [1] 17:24
indicates [1] 18:18
indicating [31 12:22
13:11 21:2
indirectly [11 23:18
information [4] 15:12
16:25 19:9 19:10
installment [31 7:20
9:3 10:8
instead [1] 7:7
institution [1] 5:22
insurance [s] 10:6
10:6 10:13 10:21
17:25 20:1 21:3
21:17
insured [1l 18:22
intent [11 9:8
interest [131 9:24
14:6 14:11 14:12
14:14 14:22 14:25
15:1 16:15 18:21
19:6 20:19 21:24
interested [21 5:21
23:18
intervening [1] 15:6
introduce [21 3:17
7:7
issued [31 7:15
8:13 21:3
issuer [3] 10:7
10:13 17:25
itself [1114:3
-J-
J [3] 1:10 23:3
23:25
JANET
Janet [313:11 3:21
18:23
-K-
kind [1] 5:20
knowing [1l 15:6
known [3] 6:11
9:24 10:25
-L-
L [21 1:17 1:18
land [1l 18:22
language [1] 13:5
last [2] 5:1 21:11
LAW [4] 1:4
1:13 1:17 1:20
lead [1l 13:12
learn [2] 9:23 10:3
learned Ill 17:23
least [1] 8:24
legal [1] 19:4
less [2] 19:13 19:15
LETTER [21 2:14
2:15
Letter [2] 7:9
11:22
JICV er [2r]
8:9 8:13
8:16 8:20
12:2 12:11
12:14 12:18
15:15 15:16
16:1 17:16
19:24 20:6
21:1 21:12
21:18 22:9
lien [22] 8:22
9:9 10:9
11:20 12:21
13:8 13:10
13:17 13:18
14:5 14:13
20:12 20:13
20:21 21:10
liens [2] 13:11
Lindsay [21
17:25
line [41 5:21
7:21 12:1
LLP [1] 1:23
loan [34] 4:4
5:19 5:20
6:3 6:4
6:8 6:12
6:22 7:1
7:19 7:24
8:13 8:15
8:20 11:12
12:2 12:4
14:8 14:14
15:16 15:21
16:3 19:1
loan-to-value
12:22 15:9
loans Ill
located [11
look [7] 7:12
11:25 12:9
17:17 18:9
looked [1]
looking [21
18:15
Lower [11
7:15
8:15
11:17
12:12
13:25
15:22
18:6
20:18
21:15
9:7
11:20
13:6
13:12
13:24
15:3
20:18
15:6
10:14
7:5
5:8
5:25
6:7
6:19
7:18
8:8
8:16
11:21
13:13
15:15
16:1
6:5
9:10
7:17
12:16
16:11
7:6
18:12
_M_
Manager [1] 5:8
March [4] 7:9
9:22 12:2 22:17
MARK [3] 1:13
1:20 1:21
Mark 111 3:18
MARKED [1] 2:13
marked [41 7:10
7:13 11:23 22:18
MARKET [11 1:14
matter [2] 3:11
3:19
May [4] 11:22 12:15
15:15 20:6
may [3] 14:17 14:17
15:7
mean [2] 14:22
Index Page 2
HUGHES, ALBRIGHT. FOLTZ & NATALE 717-540-0220/717-393-5101
Multi-Page TM
MECHANICSBURG -sign
PAUL P. BAYNUM
17:6
MECHANICSBURG
[1] 1:15
memory [1] 20:24
mention [11 19:5
mentioned [I] 7:19
MICHAEL [i1 1:24
Michael [i] 3:22
minor [21 21:14
21:18
minute [l] 6:24
modification p i
12:11
Modified [11 12:7
modified [41 12:6
12:11 12:13 12:17
money [11 14:10
mortgage [71 13:1
13:15 13:19 13:21
18:22 18:24 21:25
mortgages [21 15:7
15:9
move [i] 13:15
must p1 18:22
NAME[ii 2:2
name [31 3:20
5:1 5:1
needed Ill 15:8
next [21 18:17 18:18
NOTARY [i] 1:11
Notary [11 23:3
notice [1] 6:9
notification [1 118-4
NOW [71 4:17 8:3
8:15 10:15 13:5
13:16 19:3
now [21 7:7 16:23
number [3] 3:13
15:21 15:24
-O-
oaths [1] 23:4
objection [21 14:16
14:19
objections [11 3:5
obtain [11 13:17
occur [11 11:16
occurred [il 21:14
Off [2] 7:2 7:21
offer [i] 14:15
OFFICE [21 1:17
1:20
office[2] 5:8
17:10
officer [2] 5:6
5:7
OFFICES [i] 1:13
officially [i1 11:9
often Ill 6:18
one [sl 4:17 5:17
6:9 11:9 17:22
18:19 21:9 22:7
one-third pol 14:6
14:11 14:12 14:14
14:22 14:24 15:1
15:1 19:6 20:19
operations Ill 7:25
Orchard [-/] 8:22
10:25 12:21 13:6
13:8 14:3 18:12
order [i 113:16
original [2] 6:21
11:14
ORRSTOWN [tl
1:25
OrrstOWn [7] 3:24
4:1 4:5 5:4
5:12 16:3 19:1
ours Ill 13:12
overall [i] 12:22
owed Ill 17:4
own [2] 6:15 9:6
owned [31 16:15
19:12 19:17
Owner [21 7:4
9:4
Owners [2] 13:22
22:2
ownership [2] 14:25
15:1
-P-
P [s] 1:8 1:25
2:3 3:8 23:6
P.M [i] 1:12
p.m [i] 22:20
page [51 7:18 18:15
18:17 18:18 19:3
paragraph [2] 12:25
18:20
Parker [i1 5:2
particular [1] 9:25
particularly [i 1 15:11
parties [2] 3:3
23:16
PAUL [51 1:8
1:25 2:3 3:8
23:6
Paul [3] 3:15 3:25
5:2
Pay [2] 7:2 7:21
paying Ill 17:3
payment [1] 9:4
PENNSYLVANIA
[3] 1:2
1:15 23:2
Pennsylvania [3]
8:23 12:22 23:5
people [i1 21:22
percent [21 12:23
13:13
perform [i] 14:2
performed Ill 9:13
perhaps [i1 17:18
person Ill 18:24
perspective Ill 8:25
Philbin [s] 4:6
5:13 8:4 10:17
21:23
phone [3] 20:4
22:6 22:7
PLACE pi 1:13
place [41 11:15
21:8 21:9 23:14
PLAINTIFF [21
1:2 1:9
plaintiff [1] 3:21
PLAINTIFFS [i]
1:19
plans [i1 16:21
PLEAS [i] 1:1
Pleas [i] 3:14
plus [i1 13:12
PNC [i] 7:22
point [2] 17:22 17:23
portion [2] 7:23
18:13
position [s] 9:7
9:10 10:9 15:6
21:10
possible [i] 19:20
possibly [i] 22:6
preceding [i1 19:3
preliminary [i ] 18:7
present Ill 14:18
presented [1] 8:7
president [i] 5:7
pretty [1] 20:22
previously Ill 12:3
proceeds [s] 7:1
7:18 7:19 7:24
14:8
process [il 21:16
PRODUCED [i1
2:13
produced [3] 7:9
11:22 22:17
proper pi 15:8
properly [i] 18:25
property [22] 9:24
10:4 10:6 13:11
13:14 13:17 13:22
14:3 14:6 14:12
14:25 15:2 15:2
15:8 16:9 17:23
18:11 18:14 18:14
19:4 20:12 21:25
proposed [21 6:7
19:1
provide [31 11:13
13:23 15:12
provided [21 10:16
14:7
PUBLIC [i] 1:11
Public [21 23:3
23:10
purchase [i1 14:11
purchasing [t] 10:17
purpose [4] 4:3
6:25 6:25 7:19
purposes [21 4:8
16:3
Put [21 11:15 21:9
putting [1] 15:3
_Q_
questions [71 4:4
4:7 4:18 16:6
22:14 22:16 23:9
-R-
R[3] 1:13 1:20
1:21
reached Ill 11:19
reading [2] 3:3
12:24
real [8] 6:16 7:4
7:21 9:4 9:11
9:25 14:2 14:12
receive [21 19:25
21:2
received [31 6:22
18:4 18:5
receiving [11 22:8
recollection Ill 10:5
record [3] 5:1
14:19 23:21
recorded [i1 18:23
reduced [i] 23:11
reference [i] 6:10
referred [21 5:17
13:24
referring [1] 7:8
refinance Ill 7:20
regard [71 8:21
8:25 9:10 9:14
11:11 15:3 20:17
regarding [21 20:1
21:12
regional [i1 5:7
relative [3] 20:6
23:15 23:17
remaining [21 7:3
9:3
remember [3] 20:9
20:14 21:13
renegotiate [i1 16:2
repeat [i1 4:12
reported Ill 18:1
REPORTER[ i]
1:10
Reporter [2] 23:12
23:25
reporter [2] 4:17
4:20
Reporter-Notary [i]
23:10
represent [3] 3:17
3:18 3:21
representing [1]
3:23
request Ill 6:21
requested [i] 6:20
required [21 6:2
21:22
requirement Ill 15:4
reserved [i1 3:6
respect [i] 8:19
respective [i] 3:3
response [1] 22:9
responses [i] 4:18
RHOADS [1] 1:23
Rhoads Ill 3:23
right [s] 4:25 6:6
7:17 10:24 13:16
Road [718:23 10:25
12:21 13:6 13:8
14:3 18:12
Robert [41 4:6
5:13 8:4 10:17
-S-
Saidis [51 10:14
17:25 20:16 21:6
22:7
sale [21 10:8 11:13
sales [3] 7:3 7:20
9:3
SAMUEL [21 1:17
1:18
Samuel Ill 3:20
Satisfactory [i]
12:21
satisfactory [6] 13:6
13:8 13:17 13:24
18:21 19:23
satisfied [i1 18:19
satisfying [i] 15:4
saw [i] 16:18
says [2] 7:22 13:5
Scott [4] 4:5 5:13
8:4 10:16
sealing [i] 3:4
second [61 19:24
20:20 21:1 21:12
21:15 21:18
secure [i] 19:1
security [i] 21:24
see [41 5:18 12:25
17:21 19:7
Seeing [2] 5:23
17:21
seller [i] 7:21
senior [i] 5:8
separate [s] 9:24
10:4 17:5 17:7
17:23
set [2] 8:20 23:22
Sign [i] 21:23
Index Page 3
HUGHES, ALBRIGHT. FOLTZ & NATALE 717-540-0220/717-393-5101
significant - year
PAUL P. BAYNUM
Multi-Page TM
significant [11 21:19
signing [t1 3:3
simply [11 18:11
single [t1 18:24
SINON [11 1:23
Sinon [11 3:23
sitting [1] 16:23
Sixty [11 15:25
someone [11 16:25
sorry [2112:25 15:25
sort [1] 18:6
sought [l] 14:24
SOUTH [11 1:14
specified [11 23:14
speculation [t1 14:16
spell [11 5:1
SS [l1 23:1
Stacey [1] 17:14
Start [11 3:17
started [11 6:24
state [4] 4:25 12:20
17:16 18:20
stenographically [11
23:9
steps [118:3
Still [21 11:3 11:4
stipulated [t1 3:2
STIPULATION [11
3:1
STREET [1] 1:14
strike [l1 19:10
Subsequently [11
6:21
subsequently [21
testified [11 3:9
testimony :'1 23:6
23:21
Thank (21 18:11
22:15
themselves [t1 3:17
therefore [1] 8:12
third [2] 16:13 18:15
THOMAS [12] 1:13
1:20 1:21 2:4
3:11 4:2 7:11
11:24 13:4 14:23
16:5 22:16
Thomas [1] 3:18
thought [31 13:10
17:8 20:13
through [1] 11:21
times [11 6:18
title [12] 10:5 10:6
10:13 10:20 17:25
18:5 18:7 19:25
20:1 20:1 21:3
21:17
today [11 3:14
together [11 5:13
took [11 17:6
Township [1] 18:12
transaction [1] 6:7
transcribe [11 4:23
transferred [1) 13:2
transpired [t1 4:7
trial [t1 3:6
true [21 11:15 23:21
try [21 10:15 15:11
turn [21 18:17 19:3
typewriting [t1 23:11
typically [11 17:20
-V-
V [t1 1:3
valid [4113:22 20:12
20:13 21:10
value [21 9:16
13:13
verbal [11 4:18
verbalize [t1 4:19
versus [11 3:12
Vice [t1 5:6
volunteer [11 16:25
-w-
9:23 12:4
substance [31 20:9
20:11 21:7
subtitle [11 7:18
such [11 23:17
Suite (121 8:23
9:1 9:6 9:10
9:14 9:24 10:3
10:25 11:6 11:8
13:2 13:15
suite [21 10:10 10:11
superior [t1 13:12
sworn [21 3:9
23:8
I -T-
table [113:16
taking [21 4:18
23:7
TAMMY [t1 1:10
Tammy 121 23:3
23:25
telling [21 11:5
20:17
TERM [t1 1:7
term [t1 7:4
terming [1] 5:21
-U-
under [71 6:16
7:3 9:3 14:17
15:18 17:4 23:11
understand [-i1 4:9
4:11 4:13 4:14
6:17 9:8 20:23
understood [2] 4:15
10:19
undertook [1] 19:8
undivided [s1 14:6
14:12 14:13 14:22
15:1
Unit [1] 20:19
unit [1319:6 11:7
11:9 11:13 11:20
16:13 16:13 17:5
17:7 17:7 17:8
18:14 19:5
unless [11 21:9
unlike [11 4:11
up [11 11:5
used [11 7:1
W [5] 1:1 1:24
3:11 3:21 18:23
waived [11 3:4
WHEREOF [1123:22
WINFIELD [311:24
3:22 14:15
Winfield [t1 3:22
within [t] 23:4
without [l1 15:5
WITNESS [51 2:1
3:25 13:1 14:21
23:22
witness [4] 3:8
3:23 23:8 23:21
worthiness [t1 8:4
writing [1] 18:5
written (21 16:14
21:4
wrong [t1 8:11
-Y-
year [1] 5:9
Index Page 4
HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220{717-393-5101
t ?
74
Stonehedge Office
427 Village Drive
Carlisle, PA 17015
March 25, 2008
To be Formed Entity
Scott W. Hershey
Robert J. Philbin
2101 Orchard Road, Suite 43
Camp Hill, PA 17011
ORRST-0'W'--N
BANK
A 71,udition c f Excellerwe
0
77 Fast King Street
F' O. Rox 250
Shipprnsburg, PA 17221
Dear Scott and Bob:
1 am pleased to inform you that Orrstown Bank has approvod the
application submitted by you, Scott W. Hershey and lZob, '??il airs ?ztd the to ???' formed
entity, (liereinafier "Borrower).
The terms and conditions of-tliv approval arc as fi)llow,,
Amount & Type of Loan: $250,000 Commercial Mc7rtt;agc
Use of Loan Proceeds: Refinance existing Installment '.iatc-s Agreement and a line at
PNC, and working capita F
Term of loan: 240 Months
Interest Rate: Fixed at 6.75% for five 51 y-eais; then to float with the Wall
Street Journal Prime Rsdte plus <.,._•'1tl"%, (currently 6.50%); or a
fixed rate to be negotiates'.
Amortization: Amortized over 240 month,,.
Page I j)i W7
Mr <-2b-Cry n('?r
0
0
To be Formed Entity t. )rrstowrr Bank
Hershey, Scott W. and Philbin, Robert J.. Commitment Letter
March 25, 2008
Collateral: First lien on 2101 Orchard Road, Sprite 3, Camp Hill, PA.
Other Fees & Conditions:
1. The loan shall be guaranteed by Scott W.. i lerslr?-?. Rohe;t.l. Philbin, and Hershey,
Philbin & Associates, Inc.
2. The loan will be cross-defaulted with all othci ihllt,,ations of the borrower such that a
default under any other indebtedness or liability s,f'th(.: hon,ower to the Bank or to any other
party, now or hereafter existing, however r'eated or :!ri in J, and however evidenced, will
constitute an event of default under tlaa.; 1«aar. ITT addition, this loan shall be cross-
collateralized with, and the security f()f. thi;• laa,?ii. .;!sn act to secure, any other
obligation of the borrower to the lender, now, )r ? rra.r tr.r existing.
3. The Borrower will provide the flank with of the Operatmi g, /kgreement and
Certificate of Organization or Fictitious Name fir°y+4;tr st ion and Articles of incorporation or
Partnership Agreement for lite, to be flormed enii?k;
4. At settlement the Bank rrrust be provided with s;v `i tle insurance in an amount not
less than the amount of the loam. ?.Jnle:>s oth%;, -v sa,- r is ctcd within five (5) days of
acceptance of this commitment, the title insiwMic?- polic.±v 'will be issued by Bankers
Settlement Services - Capital Region, I,I,(' ,e id, ,e ur;:urce will insure good and
marketable title, free and clear of all liens, cric c; )rarru;Cs wand objections, in the real estate
being held as collateral. Any exceptions must be .,pprc3vcd by the Bank in writing prior to
settlement. Standard Pennsylvania endorsc:mer?t 00.,4)0 and 710, if applicable, are
required- The Bank requests iliac an interim titaprovided to the Bank
at least ten (10) days in adv;mce. of settleiner-j! ;hi?,uld indicate the items that
will be removed at or prior sci lenrew
5. At settlement, the Bank will he furnished with .
collateral. Tire original policy should be in tl v
mortgagee, further insured ind tirst lien 'noldcr
during the life of tlae loan. The original polhn
substitutions, rrrust be I-lied xvith Orrsiowr Wir
Shippensburg. PA 17257.
Insrrr:rnce coverage on the
.:?? srd thr, loan and name the flank as
la,. l„adj. ,rust be maintained in full
la ch.l?dirq, any extensions, renewals or
$lnx 250, 77 l:,r,t King; Street,
6. A flood plain certification, of the real estate I?t I ire 1ka collateral, is required by the
Bank. If any ol'the real t:stat,, improvements ark _,)+',satc,,; 6-t flood hazard area, the Bank
shall receive an original of r? flood insunj A% c po .;:ura the Bank as first lion holder,
The policymust be in the amount of-the loaaa and; , h :airrti raetl in fill] duringthe life ofthe
loan. The original policy, including any ex_tensio x r?. ?=s e<aa?s or substitutions, must he filed
witlr Orrstown Bank. P.O. Box .)0, 77 fast Kir ?wr, K ?fail7perrsburg, i'A 1775T
l'agc `? a : t
r? r
f8 f
To be Formed Entity Orrstown Bank
1-tershcy, Scott W. and Philbin, Robert I. Coinmitment Letter
March 25, 2008
7. The Bank will require a satisfactory appraisal c! :it: rc al cs,ate ilcing held :rs collateral. The
appraiser will be engaged by the Rank. 'I he apps--iisal should be prepared in conformance
with the Uniform Standards of Pro[essional Appraisal- Practice and should establish an
acceptable value for the real estate: being field u ollatcra.l_
8. "[`hc Borrower shall rtraintaiar :ill deposit ,_:ourir -.vitii r;,?c.: i:ank durirrg the life of-the loan.
9. The Bank is requiring the Borrower to prowl k Eht. stank with annuai (:VA-prepared
financial statements and tax returns durin, the 1, i'?, a-: t t: 'oar,,
10. The Bank is requiring the Guarantor(s) to teo4: Bank with 'tax returns and
personal/business Financial statements on :?ra 40W 1,1 i)taa•is, ?Junng life of the loan.
11. A loan agreement satisfactory to the Bank co oiainiiq'-, additional covenants, terms and
conditions is required to be Cxecuted at s4m1ct i i,
12. At the time of settlement, the Borrower steal: 1... ill?it, lE1ank a loru? ongination tee of
$1,500 and a docwrnerrt preparation lice ol_$25?
13. Should Borrowerprepay all .r any arrroi 1, of-p; ?'. rj ing the next five (5) years, the
Borrower shall he assessed against the anic unt Firr goof 'lvr- percent (5-00%) prepayment
penalty. The assessment percentage shad decrc .[' c A_ -r:cnt (1.00°/0) pc-r annum to par.
Lender acknowledges that excepted from this, ,t? I'I;,. VOC:-? "rill he principal payments that
are generated as a result of operation of the hia , tnc"- `or which the loan was extended.
Specifically not excepted wi 1) be any pwpnymen; 0;01 ??yt0.11 as a result of a refinancing at
any other financial institution. l_xcept forit IC for ;? ,. ;torr(r)ivermay pay all oraportion
of the amount owed earlier than is clue. L;irly pa'. ao°., unless agreed to by Lender
in writing, relieve Borrower orBorrower' , .)blig;x . E:: +..:,r?tira;?E; to make payments under
the payment schedule- Rathe'i they will reduce 6 , t,a iio',ipal balance due rand may result in
.
Borrower making fewer payments.
14. The principals must sign all documentation. '"c° ' 'a ate;. a i r?t)t aCCept signatures by powers
. ol'attornev_
15. The Borrower will pay all fees, acco.-;rt inl; and all other fees incurred by
the Bank in connection with thin; loar? trtmtrrtiorth?:-?;?? tti?t Nvill be paid., even i [the loan
does riot settle.
16. The final loan documentation may cont<tira ,v-_'nrantu, terms and conditions,
which will supersede thti term,: and cc?nditioair, ?ILIC r:_
Page: o 0i
To be Formed Entity Orrstown Bank
Hershey, Scott W. and Pnilbin.. Robert,' Cotntnitrrtent Letter
March 25, 2008
The Bank has a right to cancel this commitment if Lhc.` e is ,my tnf umal change (in the sole opinion of
the Bank) in the financial position of the Borrower f onz tilt date- apt thc: application or if the collateral
is substantially destroyed prior to the settlement.
This commitment letter constitutes a loan offer. Nca:t ,.. irk+aie<?tc your acceptance of the
aforementioned loan terms by signing and returnirrt; this 4A Igiflai Loi nirtilment letter. I have enclosed
a copy of this letter for your record=s Once the Ba ha.S , L,,e.i VC-d 1, ; original signed commitment
letter, we will initiate the preparation of the loam docuri(.,?ii;lti01'; , trcter all searches and appraisals
and will establish a tentative settlerent date..
The Bank's commitment to extend the loan undc;i the
terminate if the Bankdoes not receive this signed cornrnit
days from the date of letter)- Ifthis commitmeni lelfe-
before May 24, 2008 (60 days ffi - she t1ate: of ter?
settlement does not occur on or belark- May 24, 2008 (61
extended only at the option of-the Bzjr.k
rani' ;,n: :.onditions otitlined above will
R? 101, tcl ;:)h Or before April 24, 2008 (30
settlement u,u.st occur on or
will be terminated if
.7 Starr the date of letter). It may be
Thank you for the opportunity to acconnnodate you with t mat i 1' you have any questions please
feel free to contact me at (717) 258-ti',70
Very truly yours,
ORRSTOWN BANK
Paul P_ Baynurn
Vice President and
Business Development Officer
a
?o
n
a
0
11o
To be Formed Entity
Hershey, Scott W. and Philbin, Robert.),
March 25, 2008
,.
)rrstown Dank
C'orninitment Letter
ACCEPT AM t.
Intending to be bound, the undcrslgned accept the i.?rrcn)Cni!onc;"< is wi terms and :agree to the
terms and conditions as stated.
Scott W. Hershey
Off i cer/Member/Partner
To be formed entity
I)atc'
Robert J. Philbin Data
Officer/ Member/Partner
To be formed entity.
Scott W. Hershey )att
Guarantor
Robert J. Philbin ,:rte
Guarantor
Robert J. Philbin ) a c
President
Hershey, Philbin & Associates, Inc-
Scott W. Hershey
Secretary
Hershey, Philbin & Associates. Inc.
Page `
YPI
To be Formed Entity
Hershey, Scott W. and Philbin, Roberti,
March 25, 2008
BORROWER'S ATTORNEY INFORMATION
Robert: C. Saidi!;
Borrower's Attorney:
26 West f filth StI'CC
Attorney's Address_ Carlisle, PA 1 701
Attorney's Telephone Number: 7 i 7-243-6222
Attorney's Fax Number:
Rmsca 312»08
L?-243-6480
")rrstown Bank
Commitment Letter
Pace 6
Stonehedge Office
427 Village Drive
Carlisle, PA 17015
May 13, 2008
A To-Be-Formed Entity owned by
Scott Hershey and Robert Philbin
2101 Orchard Road, Suite #3
Camp Hill, PA 17011
Dear Scott and Bob:
I am pleased to inform you that Orrstown Bank (hereinafter "Bank") has approved the
application submitted by you, Hershey-Philbin, (hereinafter "Borrower).
The terms and conditions of the approval are as follows:
Amount & Type of Loan: $251,250 Commercial Mortgage
Use of Loan Proceeds: Refinance existing Installment Sales Agreement and a line at
PNC, and working capital.
Term of Loan: 240 Months
Interest Rate: Fixed at 6.75% for five (5) years; then to float with the Wall
Street Journal Prime Rate plus 0.50% (currently 6.50%); or a
fixed rate to be negotiated.
PaaP 1 of 7
Hershey-Philbin
March 25, 2008
Orrstown Bank
Commitment Letter
Collateral: Satisfactory lien on 2101 Orchard Road, Camp Hill, PA,
indicating an overall Loan-to-Valueof no more than 75%. This
mortgage will be transferred to Suite 3 upon completion of the
Condominium agreement.
Other Fees & Conditions:
1. The loan shall be guaranteed by Scott W. Hershey, Robert J. Philbin, and Hershey,
Philbin & Associates, Inc.
2. The loan will be cross-defaulted with all other obligations of the borrower such that a
default under any other indebtedness or liability of the borrower to the Bank or to any
other party, now or hereafter existing, however created or arising, and however evidenced,
will constitute an event of default under this loan. In addition, this loan shall be cross-
collateralized with, and the security for this loan will also act to secure, any other
obligation of the borrower to the lender, now or hereafter existing.
3. The Borrower will provide the Bank with copies of the Operating Agreement and
Certificate of Organization or Fictitious Name Registration and Articles of Incorporation
or Partnership Agreement for the to be formed entity
4. At settlement the Bank must be provided with satisfactory title insurance in an amount not
less than the amount of the loan. Unless otherwise directed within five (5) days of
acceptance of this commitment, the title insurance policy will be issued by Bankers
Settlement Services - Capital Region, LLC. The title insurance will insure good and
marketable title, free and clear of all liens, encumbrances and objections, in the real estate
being held as collateral. Any exceptions must be approved by the Bank in writing prior to
settlement. Standard Pennsylvania endorsements 100,300 and 710, if applicable, are
required. The Bank requests that an interim title insurance binder be provided to the Bank
at least ten (10) days in advance of settlement. The binder should indicate the items that
will be removed at or prior to settlement.
5. At settlement, the Bank will be furnished with Fire and Hazard Insurance coverage on the
collateral. The original policy should be in the amount of the loan and name the Bank as
mortgagee, further insured and first lien holder. The policy must be maintained in full
during the life of the loan. The original policy, including any extensions, renewals or
substitutions, must be filed with Orrstown Bank, P.O. Box 250, 77 East King Street,
Shippensburg, PA 17257.
6. A flood plain certification,of the real estate being held as collateral, is requiredby the Bank.
If any of the real estate improvements are located in a flood hazard area, the Bank shall
receive an original of a flood insurance policy naming the Bank as first lien holder. The
policy must be in the amount of the loan and be maintained in full during the life of the
Paae I of 7
1
Hershey-Philbin
March 25, 2008
Orrstown Bank
Commitment Letter
loan. The original policy, including any extensions, renewals or substitutions, must be filed
with Orrstown Bank, P.O. Box 250, 77 East King Street, Shippensburg, PA 17257.
7. The Bank will require a satisfactory appraisal of the real estate being held as collateral. The
appraiser will be engaged by the Bank. The appraisal should be prepared in conformance
with the Uniform Standards of Professional Appraisals Practice and should establish an
acceptable value for the real estate being held as collateral.
8. The Borrower shall maintain all deposit accounts with the Bank during the life of the loan.
9. The Bank is requiring the Borrower to provide the Bank with annual CPA-prepared
financial statements and tax returns during the life of the loan.
10. The Bank is requiring the Guarantor(s) to provide the Bank with tax returns and
personalibusiness financial statements on an annual basis, during life of the loan.
11. A loan agreement satisfactory to the Bank containing additional covenants, terms and
conditions is required to be executed at settlement.
12. At the time of settlement, the Borrower shall pay to the Bank a loan origination fee of
$1,500 and a document preparation fee of $250.
13. Should Borrower prepay all or any amount of principal during the next five (5) years, the
Borrower shall be assessed againstthe amount prepaid, a five percent (5.00%) prepayment
penalty. The assessment percentage shall decrease one percent (1.00%) per annum to par.
Lender acknowledges that excepted from this assessment will be principal payments that
are generated as a result of operation of the business for which the loan was extended.
Specifically not excepted will be any prepayments generated as a result of a refinancing at
any other financial institution. Except for the foregoing, Borrower may pay all or a portion
of the amount owed earlier than is due. Early payments will not, unless agreed to by
Lender in writing, relieve Borrower or Borrower's obligationto continue to make payments
under the payment schedule. Rather, they will reduce the principal balance due and may
result in Borrower making fewer payments.
14. The principals must sign all documentation.The Bank will not accept signatures by powers
of attorney.
15. The B orrowerwill pay all legal fees, accounting fees, and any and all other fees incurred by
the Bank in connection with this loan transaction. These fees will be paid, even if the loan
does not settle.
16. The final loan documentation may contain additional covenants, terms and conditions,
Pam-. 4 of 7
Hershey-Philbin
March 25, 2008
which will supersede the terms and conditions stated herein.
Orrstown Bank
Commitment Letter
The Bank has a right to cancel this commitment if there is any material change (in the sole opinion
of the Bank) in the financial position of the Borrower from the date of the application or if the
collateral is substantially destroyed prior to the settlement.
This commitment letter constitutes a loan offer. Please indicate your acceptance of the
aforementioned loan terms by signing and returning this original commitment letter. I have enclosed
a copy of this letter for your records. Once the Bank has received this original signed commitment
letter, we will initiate the preparation of the loan documentation, order all searches and appraisals
and will establish a tentative settlement date.
The Bank's commitment to extend the loan under the terms and conditions outlined above will
terminate if the Bank does not receive this signed commitment letter on or before April 24, 2008 (30
days from the date of letter). If this commitment letter is accepted settlement must occur on or
before May 24, 2008 (60 days from the date of letter). This commitment will be terminated if
settlement does not occur on or before May 24, 2008 (60 days from the date of letter). It may be
extended only at the option of the Bank.
Thank you for the opportunity to accommodate you with this loan. If you have any questions
please feel free to contact me at (717) 258-5170.
Very truly yours,
ORRSTOWN BANK
Paul P. Baynum
Vice President and
Business Development Officer
ACCEPTANCE
Intending to be bound, the undersigned accept the aforementioned loan terms and agree to the
terms and conditions as stated.
Scott W. Hershey
General Partner
Date
Pam- 5 of 7
Hershey-Philbin
March 25, 2008
Hershey-Philbin
Orrstown Bank
Commitment Letter
Robert J. Philbin Date
General Partner
Hershey-Philbin
Scott W. Hershey
Guarantor
Robert J. Philbin
Guarantor
Robert J. Philbin
President
Hershey, Philbin & Associates, Inc.
Date
Date
Date
Scott W. Hershey Date
Secretary
Hershey, Philbin & Associates, Inc.
BORROWER'S ATTORNEY INFORMATION
Robert C. Saidis
Borrower's Attorney: SAIDIS, FLOWER & LINDSAY
26 West High Street
Pace 6 of 7
Hershey-Philbin
March 25, 2008
Orrstown Bank
Commitment Letter
Attorney's Address: Carlisle, PA 17013
Attorney's Telephone Number: 717-243-6222
Attorney's Fax Number: 717-243-6486
Revised 321108
Pave, 7 of 7
4
Associates, Inc.
A
June 20, 2008
Hartman & Associates
2101 Orchard Road
Camp Hill, PA 17011
Att: John Clark and Danny Hartman
Dear Janet Hartman and the Robert G. Hartman estate,
I would like to take this opportunity to inform all parties involved in the 2101 Orchard
Road, Camp Hill, Pa. property that we (Robert J. Philbin and Scott W. Hershey) are
scheduling a closing for and settlement of our Installment Agreement of Sale dated:
October 24, 1994.
The settlement date is Thursday, August 28, 2008, the time and place to be confirmed.
It is expected that we will receive an insured, licensed and marketable title to this
property at this time.
Thank you in advance,
Scott W. Hershey
ADVERTISING • DESIGN • PUBLIC RELATIONS • MARKET RESEARCH
2101 Orchard Road, Suite 3
Camp Hill, PA 17011-7439
(717) 975-2148 - Fax (717) 975-2152
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cc. Paul P. Baynum
Bob Sadis, Esq.
717-243-6486 SAIDIS SHUFF FLOWER
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26 West High Street
Carlisle, PA 17013
Phone: (717) 243-6222
Fax: (717) 243.6486
979 P02 MAR 26 '08 07:26
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717-243-6486 SAIDIS SHLFF FLOWER
979 103 MAR 26 108 07:26
Eyelity National Title Insff"ce CCo,_,_n:D_a?n1
486 Norristown Road, Suite 230. Blue Bdl. PA 1%22 (800) 441-5429 (610) 325.5720
ORRSTOWN BANK, its successors and/or assigns as
tbek interests may appear
77 East King Street
Shippensburg, PA 17257
DATE: March 26,2M8
RE: CLOSING SERVICE LETTER
*ISSUING AGENT OR APPROVED ATTORNEY:
•Abatnct Company of Central PA, Inc.
26 west Nigh Street
Carlisle, PA 17013
*BINDER OR COMMITMENT NO.:
FN200"10
BORROWER:
Hershey-Philbin
PROPERTY:
2101 Orchard Road, Camp Hill, PA 17011
Dear Customer:
When title insurance of Fidelity National Tito Insurance Company (the Company) is specified for your protection in connection with the closing
of the, above described real estate transaction (tire Closing) in which you are to be a lender secured by a mortgage of an interest in land, the Company,
subject to the Conditions and Exclusions set forth below. hereby agrees to reimburse you for actual loss incurred by you in connection with the
Closing when conducted by the above named Issuing Agent (an agent suthorixed to issue title insurance fur the Company) or the, above named
Approved Attorney (an attorney upon whose oortification of title the Company issues title insurance) and when such toss arises out of:
I. Failure of the Issuing Agent or Approved Attorney to comply with your written closing instructions to the extent that they relate to (a) the
title to said interest in land or the validity. enforceability and priority of the lien of said mortgage on and interest in land, including the
obtaining of documents and the disbursement of fiords necessary to establish such title or lien; or (b) the collection and payment of funds
due you: or
2. Fraud or misapplication of the Issuing Agent or Approved Attorney in handling your funds in connection with the matters set forth in
numbered paragraph l above.
CONDITIONS AND EXCLUSIONS
A. The Company will not be liable to you for loss arising out of.
1. Failure of the Approved Attorney to comply with your closing instructions which require title insurance protection inconsistent with that
set forth in the title insurance binder or commitment issued by the Company. Itrstr moons which require the removal of specific exceptions
to title or compliance with the requirements contained in said binder or commitment shall not be deemed to be inconsistent.
2. Loss or Impairment of your funds in the course of collection or while on deposit with a bank due to bank failure, insolvency or suspension.
except such as shall result from bilure of the issuing Agent or the Approved Attorney to comply with your written closing instructions to
deposit the funds in a bank which you designated by names
3. Medwrtics' and ntaterialrnen's liens in connection with a construction loan transaction, except to the extent that protection against such
I inns is afforded by a title insurance binder, commitment or policy of the Company.
B. if the Closing is to be conducted by an Approved Attorney. a title insurance binder or commitment for the issuance of a policy of title insurance
of the Company must have been received by you prior to the transmission of your final closing instructions to the Approved Attorney.
C. Should the Company reimburse you pursuant to this latter it shall be subrogated to all rights and remedies which you would have had against
any peson or property had you not been so reimbursed. Liability of the Company for such reimburscnment shall he reduced to the extent that you
have knowingly and voluntarily impaired the value of such right of subrogation.
D. Any liability of the Company for loss incurred by you in connection with the Closing by an Issuing Agent or Approved Attorney shall he limited
solely to the protection provided by this fetter.
F. Liability under this letter is limited to the amount of the policy of title insurance to be issued. and any payment of loss under this letter shall
constitute a payment under the policy.
F. Claims shall be made promptly to the Company at its office at P.O. Box 45023 Jacksonville, Florida 32232-3023. When the Wlurc to give
prompt notice shalt prejudice the Company, then liability of the Company hereunder shall be reduced to the extent or such prejudice.
G. The Company shall not be liable hereunder unless notice of claim in writing is received by the Company within one year from the date of the
Closing.
H. This letter does not appoint the above named Approved Attorney. if any, n an agent of the Company.
1. The scope and effect of this Letter is limited to a single transaction. which is the Closing on the commitment or binder referenecui in the caption.
Fidelity Nationst Title Insurance Company
BY:
Raymond R. ark. Prescdent
0 Mrtt be twWe dfor tick Lent to be a eabe TIRBOP - PA CSL (10/00) TRANSACTION SPECIFIC
PP
717-243=S4 G - SA I D I S SNUFF FLOWER 979 P04 MAR 26 ' 08 07:27
r
Fidelity National Title Insurance Company
COMMITMENT
File No. FN2008-010RCS
SCHEDULE A
1. Commitment Date: 3/25108
2. Policy or Policies to be issued: Amount
(a) ALTA Owners Policy, as modified by TIRSOP (06-17-06) $ 148,000.00
Proposed Insured:
Hershey-Phllbin
(b) ALTA Loan Policy, as modified by TIRBOP (06-17-06) $ 250,000.00
Proposed Insured:
Onstown Bank, its successors and/or assigns as their interests
may appear
3. The estate or interest in the land described or referred to in this commitment and covered herein is
Fee Simple and tide thereto is at the effective date hereof vested in:
Janet W. Hartman, single person
4. The land referred to in this commitment is described as follows:
For informational purposes only.,
2101 Orchard Road, Camp Hill, PA 17011
Lower Allen Township
County of Cumberland
SEE CONTINUATION OF SCHEDULE A FOR LEGAL DESCRIPTION
Coungnignet
Abstract Company of Central PA, inc.
By:
Authorized ipatory
ALTA ConlmitmsM
Scheduler A
979 P06 MPR 26 ' 08 07:27
717-243-6486 SAIDIS SNUFF FLOWER
Fidelity National Title Insurance Company
File No. FN2008-01ORCS
SCHEDULE B -- SECTION 1
The following are the requirements to be complied with:
1. Pay the agreed amounts for the interest in the land and/or the mortgage to be insured.
2. Pay us the premiums, fees and charges for the policy.
3. Documents satisfactory to us creating the interest in the land and the mortgage to be insured must be
executed, delivered and recorded.
a. Decd from Janet W. Hartman, single person to Horabey-Phiibin.
b. Mortgage to be properly executed by Hershey-Phlibin in favor of Onstown
dank, to secure ft proposed loan In the amount of $214000.00.
4. You must tell us in writing the name of anyone not referred to in this Commitment who will get an interest
in the land or who will make a loan on the land. We may then make additional requirements or
exceptions.
5. Proof of identity, legal age, competency and marital status of all parties to this transaction.
6. Proof that there are no overdue support obligations of record with the domestic relations section of the
parties to this transaction, up through the date of recording of the instruments to be Insured.
7. Town, County and School Taxes and Waiter and Sewer Rent receipts for the years 2006 through 2008,
inclusive, to be produced and filed with the Company. All assessments and taxes for the current year and
all subsequent years.
Assessments: $.00 Parcel No: 23 0849138
8. Satisfactory evidence must be produced that the premises are entirely in the possession of the owner and
that the premises are not subject to the terms of any unrecorded lease.
9. Proof that no sewers have been installed or ordered to be installed, abutting or in front of or upon
premises described herein prior to completion of this transaction or receipts for the cost of same to be
produced, otherwise an exception will be certified in Schedule "IT' of the Policy relieving Company from
liability for any loss arising by reason of a claim or claims for such sewer installation and connection
therewith.
The following note is for informational purposes only:
The following deed(s) affecting said land were recorded within six (6) months of the date of this Report:
None
Valid only It Schedules A and 641 are aaa&Ad.
ALTA Commitment
Sdwdule 6 - I
?1?-243-6486 SAIDIS SHUFF FLOWER 9?9 P07 MAR 26 108 07:28
Fidelity National Title Insurance Company
SCHEDULE B - SECTION 2
File No. FN2008-01ORCS
Schedule 8 of the policy or policies to be issued will contain the following exceptions unless the same are
disposed of to the satisfaction of the Company.
1. Defects, liens, encumbrances, adverse claims or other matters, if any created, first appearing in the public
records or attaching subsequent to the effective date hereof but prior to the date the proposed insured
acquires for value of record the estate or interest or mortgage thereon covered by this Commitment
2. Right or claims of parties in possession of the land not shown by the public records.
3. Any lien, or right to a lion, for services, labor or material heretofore or hereafter furnished, imposed by law
and not shown by the public records.
4. Taxes, levies or special assessments which are not shown by the public records.
5. Subject to possible tax increase based on additional assessment heretofore or hereafter made by reason
of new construction or for any major improvements to premises pursuant to Acts of Assembly relating
thereto.
6. Easements, encroachments, overlaps, boundary line disputes and other matters affecting title which a
survey would disclose, and which are not show by the public record. (For an additional charge and upon
submission of an acceptable survey, this exception will be deleted by endorsement and the policy will set
forth those matters, if any, affecting title.)
7. Any encroachments, easements, measurements„ variations in area or content, party wags or other facts
which a correct survey of the premises would show. (Upon production of a survey made in accordance
with "Minimum Standard Detail Requirements for Land Title Surveys as adopted by American Land Title
Association and American Congress on Surveying and Mapping," by a surveyor approved by the
Corporation, this objection will be removed and only the specific objections, if any, disclosed thereby, will
be excepted herefrom.)
81 Road ways, streams or easements, if any, not shown by the public records, riparian rights and the title to
any filled-in lands.
9. Possible additional tax assessment by reason of new construction or improvements pursuant to the
provisions of the Acts of Assembly relating thereto, not yet due and payable.
10. $238,400.00 mortgage in favor of PA Statue Bank dated 4121194, recorded 4=94, in Mortgage Book
1208, Page 527.
11. Assignment of Rents in favor of PA State Bank recorded 4127194 in Misc. Book 471, Page 1081,
12. Grant of right of way for wafter line to Richard D. and Martha A. Kbmiiler dated 101=54, recorded in
Misc. Book 115, Page 124.
13. Subject to rights of way, easements, setbacks and restrictions recorded with Plan of Hartman &
Associates, Inc. in Plan Book 80, Page 144.
14. Subject to 2008 county/township tax now due and payable.
15. Subject to 2007-08 school tax now due and payable.
Valid only if Sahwdulaa A and &1 are attached.
ALTA Caranihneilt
SChadUia 8 - It
JANET W. HARTMAN,
PLAINTIFF
V.
HERSHEY-PHILBIN
ASSOCIATES, INC.,
DEFENDANT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 08-7503 CIVIL
IN RE: DEFENDANT'S PETITION TO STRIKE OR OPEN JUDGMENT
BEFORE OLER. J. AND EBERT, J.
ORDER OF COURT
AND NOW, this 15th day of October, 2010, upon consideration of the record and the
briefs filed by both parties;
IT IS HEREBY ORDERED AND DIRECTED that:
(1) Plaintiff s Motion to File an Amended Complaint is GRANTED;
(2) Defendant's Motion to Strike Judgment by Confession is DENIED;
(3) Defendant's Motion to Open Judgment by Confession is DENIED.
Samuel L. Andes, Esq.
Attorney for the Plaintiff
R. Mark Thomas, Esq..
Attorney for the Defendant
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By the Court,
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M. L. Ebert, Jr., J.
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JANET W. HARTMAN,
PLAINTIFF
V.
HERSHEY-PHILBIN
ASSOCIATES, INC.,
DEFENDANT
1N THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO.08-7503 CNIL
IN RE: DEFENDANT'S PETITION TO STRIKE OR OPEN JUDGMENT
BEFORE OLER, 3. AND EBERT, J.
OPINION AND ORDER OF COURT
Ebert, J., October 15, 2010 -
FINDINGS OF FACT
Janet W. Hartman (hereinafter Plaintiff] is an adult individual who resides in New
Cumberland, Cumberland County, Pennsylvania.' Hershey-Philbin Associates, Inc. (hereinafter
Defendant) is a Pennsylvania corporation which maintains its principal offices at 2101 Orchard
Road in Camp Hill, Lower Allen Township, Cumberland County, Pennsylvania.2
On October 24, 1994, Robert G. Hartman, Jr., the deceased husband of Plaintiff entered
into two separate agreements with Defendant. The first was an "Installment Agreement of Sale"
by which he sold an undivided one-third interest, as tenants in common, to Defendant in certain
real property located at 2101 Orchard Road in Camp Hill, Cumberland County, Pennsylvania.3
The second was a "Tenants in Common Ownership Agreement" which outlined the rights,
responsibilities and obligations of the parties to manage the property.4 The total purchase price
' Complaint for Confession of Judgment in Ejectment, Dec. 29, 2008, ¶ 1, (No. 08-7503) (hereinafter
Complaint).
2 Complaint at ¶ 2.
s Ex. A, "Installment Agreement of Sale," Complaint.
a Ex. A, "Tenants in Common Ownership Agreement," Motion to Strike and/or Open 3udgment of
Ejectment by Confession, Feb. 6, 2009, ¶ 18, (No. 08-7503) (hereinafter Motion to Strike and/or Open
Judgment).
1
for Defendant's one-third interest as tenant in common was $148,000.00, of which ten percent
was paid in cash at the time of settlement and the balance, together with interest at 7.5 percent,
was to be paid within five years.5 This never happened. In essence, when the two agreements
are read together, Defendant's undivided one-third interest in the property entitled it to
essentially the exclusive use of the third floor of the building along with no less than 20 parking
spaces.6 Defendant has used this third floor for over 14 years, from the time of initial contract in
October of 1994.
On April 10, 2000, Lower Allen Township approved a plan for a new subdivision
submitted by Robert G. Hartman, Jr., and Plaintiff to combine the property at 2101 Orchard
Road with an adjacent tract of land. This subdivision plan was filed in the Cumberland County
Recorder of Deeds Office on Apri128, 2000, in Planbook 80 on page 144. On July ?, 2000, an
"Extension Agreement" was executed by and between Robert G. Hartman, Jr., and Defendant to
extend the payment terms of the October 24, 1994, Agreement until December 31, 2004.8 This
"Extension Agreement" included a provision giving Robert G. Hartman, Jr., the right to
subdivide a tract of ground from the tract subject to the Agreement.9 Hershey-Philbin Associates
was fully aware that the original tract of land at 2101 Orchard Road was combined with an
adjacent tract of land into one property. Obviously at the time of the execution of the extension
agreement, Defendants did not object to this combination and in no way felt that it affected their
property rights.
5 Ex. A, "Installment Agreement of Sale," Complaint.
6 Ex. A, "Tenants in Common Ownership Agreement," Motion to Strike and/or Open Judgment.
Motion to Strike and/or Open Judgment ¶ 15(a).
a Ex. C, Motion to Strike and/or Open Judgment ¶ 5.
9 Ex. C at 2(b), Motion to Strike and/or Open Judgment ¶ 5.
2
The new subdivision enabled Robert G. Hartman, Jr., to place a substantial storage
structure, now a source of contention, on the property in March of 2003.10 Defendant also points
to a conflict regarding the "Tenants in Common Ownership Agreement" involving the
installation of a new roof in May 2003 by Robert G. Hartman and the division of that expense.l 1
By a deed dated September 19, 1996, Robert G. Hartman, Jr, transferred his two-thirds
interest in the property at 2101 Orchard Road to his wife, Plaintiff.12 Robert G. Hartman, Jr.,
died on November 9, 2003.13 Under the terms of his will, he left to Plaintiff his remaining assets,
which included the "Installment Agreement of Sale" and the remaining one-third interest in the
real estate.14 The assignment of the "Installment Agreement of Sale" was confirmed by an
"Executor's Deed" dated July 6, 2009.1s
In March of 2008, Defendant obtained a commitment letter from Orrstown Bank in the
amount of $250,000.00, part of which was to be used by Defendant to pay off the "Installment
Agreement of Sale" in fu11.16 However, the financing commitment from Orrstown Bank was
subsequently withdrawn. Defendant claims it was withdrawn because they could not obtain a
deed in conformity with the "Installment Agreement of Sale.s17 In reality, an examination of the
record does not support this claim. The filed deposition of Paul P. Baynum, the Business
Development Officer at Orrstown Bank who was negotiating with the Defendant to secure the
$250,000.00 loan, establishes that the bank wanted a "Condominium Agreement" for the third
10 Motion to Strike and/or Open Judgment ¶ 26.
11 Motion to Strike and/or Open Judgment at ¶ 21-25.
12 Ex. C, "This Deed," Motion to Strike and/or Open Judgment.
13 Ex. C, "Assignment of Installment Agreement of Sale," Amended Complaint for Confession of
Judgment in Ejectment, Jan. 12, 2010, (No. 08-7503) (hereinafter Amended Complaint).
14 Amended Complaint at ¶ 4.
15 Ex. B, "Executor's Deed," & Ex. C "Assignment of Installment Agreement of Sale," Amended
Complaint.
16 Motion to Strike and/or Open Judgment at ¶ 14.
"Motion to Strike and/or Open Judgment at ¶ 15(c), 17.
3
floor of the building and when they did not get a condominium agreement in place they did not
feel that they would have a valid lien position to secure their loan.1 s
Prior to 2008 Defendant had failed to make the installment payments in accordance with
the agreement.19 For example, the payments due for November and December, 2007, were not
made until March 30, 2008.20 The late payments continued until May of 2008, after which
Defendant has failed to make any payments on the "Installment Agreement of Sale."zi
PROCEDURAL HISTORY
On December 29, 2008, after providing Defendant with the notice and opportunity to
cure its default that was required by the "Installment Agreement of Sale," Plaintiff filed a
Complaint for Confession of Judgment in Ejectment.22 On February 6, 2009, Defendant filed the
instant Petition to Strike and/or Open Judgment of Ejectment by Confession. On July 31, 2009,
Plaintiff filed an Answer to Defendant's Motion to Strike and/or open Judgment of Ejectment by
Confession. On January 12, 2010, Plaintiff filed a Motion to File Amended Complaint for
Confession of Judgment in Ejectment to add facts relating to the transfer to Plaintiff of the
remaining interest in the subject property owned by Robert G. Hartman, Jr., at the time of his
death, and the formal assignment to Plaintiff of the "Installment Agreement of Sale" from the
personal representatives of the Estate of Robert G. Hartman, Jr.23 On February 5, 2010,
Defendant opposed the Motion to Amend by filing an Answer to Plaintiff's Motion to File
Amended Complaint with New Matter. On March 5, 2010, Plaintiff then filed a Reply to
Defendant's New Matter. Argument was held on July 7, 2010.
18 Deposition of Paul Baynum, Dec. 17, 2009, p. 21.
19 Ex. B, "Notice of Default," Complaint.
20 Ex. B, "Notice of Default," Complaint.
21 Ex. B, "Notice of Default," Complaint; Motion to Strike and/or Open Judgment at ¶ 18.
zz Ex. B, "Notice of Default," Complaint.
zs Amended Complaint at ¶ 4.
4
DISCUSSION
I. Plaintiff s Amended Complaint is Allowed
The Pennsylvania Rule of Civil Procedure, 2952, provides in relevant part that the
complaint shall contain "a statement of any assignment of the instrument." Pa.R.C.P.
2952(a)(4). Plaintiff does not dispute that iri her Complaint she mistakenly stated that she owned
the property in question and the "Installment Agreement of Sale" signed by Defendant.
Plaintiff s husband had, however, only transferred atwo-third interest to Plaintiff before his
death and had not assigned Plaintiff the "Installment Agreement of Sale."
Defendant contends that because Plaintiff was not a party to the "Installment Agreement
of Sale" attached to the Complaint, she is not entitled to recover because only the real party in
interest has the right to enter judgment by confession. Fourtees Co. v. Sterling Equip. Corgi., 363
A.2d 1229, 1232 (Pa. Super. 1976). However, when Plaintiff learned of the mistake in her
Complaint, she took effective measures to correct it before filing her Answer to Defendant's
petition, and her Motion for Leave to Amend her Complaint.
Under the terms of his will, Plaintiff's husband left the remaining one-third interest in the
real estate and the assignment of the "Installment Agreement of Sale" to Plaintiff. Plaintiff has
subsequently received a deed from the personal representatives of the Estate of her husband that
formally conveyed the remaining one-third interest in the property, and formally assigned to her
all interest in the "Installment Agreement of Sale." These documents were attached to Plaintiff's
Answer to Defendant's petition and to her Motion for Leave to Amend her Complaint.
Therefore, this formal defect in Plaintiff s Complaint can be corrected if she is granted leave to
amend her Complaint.
5
In West Penn S. & G. Co. v. Shippingport S. Co., 80 A.2d 84, 86 (Pa. 1951), the
Pennsylvania Supreme Court stated:
It has always been held that formal defects, mistakes and omissions in confessions
of judgment maybe corrected by amendment where the cause of the action is not
changed, where the ends of justice require the allowance of such amendment, and
where the substantive rights of defendant or of any third persons will not be
prejudiced thereby.
Id. at 86. Plaintiff s mistake in her original complaint is a formal defect in the judgment entered
against Defendant by confession and maybe corrected by amendment. Here also, the cause of
action remains unchanged. It is still a claim for possession and ownership of the property
because Defendant seriously breached the contract. The ends of justice require the allowance of
the amendment because, without that amendment, Plaintiff cannot enforce her rights under the
"Installment Agreement of Sale." Plaintiff's amendment merely seeks to accurately reflect the
facts and in doing so does not prejudice the substantive rights of Defendant.
Furthermore, the Pennsylvania Supreme Court has also decided that amendment is
permissible to substitute the real party at interest in the litigation for a party incorrectly named as
the plaintiff in the original complaint. In Miller v. Michael Morris, Inc., 63 A.2d 44 (Pa. 1949),
the Supreme Court upheld the trial court's refusal to strike or open a judgment in ejectment
entered by confession. There the defendant had contended that the judgment was invalid
because the original plaintiff was not the real party at interest. The judgment had been confessed
on a lease which had been assigned from one lessor to another. When the lessee defaulted, the
judgment was entered in the name of an earlier lessor who had assigned the lease to another
lessor. The defendant seized upon the defect and asked the trial court to strike the judgment on
that basis. The trial court permitted the amendment to the complaint, to substitute the lessor
holding the lease at the time of the entry of judgment, and the defendant appealed. The
6
Pennsylvania Supreme Court, upholding the trial court's decision, determined that the judgment
should have been entered in the name of the real party in interest, but then continued to state:
This rule is mandatory and the lower courts have properly enforced this rule in
many instances. Under the circumstances of this case, however, the Court below
properly permitted the `amendment to the pleadings to conform with the
provisions of this rule.' We will treat it as if it was amended and as if the
judgment was so entered.
Miller., 63 A.2d at 47. Having so ruled, the Supreme Court upheld the trial court's decision and
the judgment in ejectment stood.
As this case makes clear, substitution of the real party in interest for a plaintiff mistakenly
identified as the claimant is a defect which maybe corrected by amendment. Therefore, this
Court permits the amendment of Plaintiff's Complaint which corrects the formal defect present
in that original Complaint.
II. Defendant's Petition to Strike and/or Open the Judgment is Denied
"A petition to strike off the judgment reaches defects apparent on the face of the record,
while a petition to open the judgment offers to show that the defendant can prove a defense to all
or part of the plaintiffs claim." Manor Bldg. Corp. v. Manor Complex Assoc., Ltd., 645 A.2d
843, 845 (Pa. Super. 1994)(internal citations omitted. As the following discussion will reveal,
both of Defendant's petitions are denied because Plaintiff's Amended Complaint remedies the
apparent defect of the record and Defendant has failed to show that it can prove a defense to
Plaintiff s claim. "The decision of the trial court on a petition to strike or open judgment will not
be disturbed unless there is an error of law or a manifest abuse of discretion." BAIT Ptnr., LP v.
E Pointe Prop. I, Ltd., 957 A.2d 1275, 1277 (Pa. Super. 2008).
7
a. The Petition to Strike the Judgment is Denied
"A petition to strike a judgment raises a question of law and relief thereon will only be
granted if a fatal defect appears on the face of the record." RAIT Ptnr., 957 A.2d at 1277.
Defendant contends that the record is fatally defective because the Complaint does not establish
that Plaintiff is the real party of interest. Therefore, Defendant seeks to strike entirely the
judgment entered against it by confession. However, Plaintiff has subsequently received a deed
from the personal representatives of the Estate of her husband that formally conveyed the
remaining one-third interest in the property in question, and formally assigned to her all interest
in the "Installment Agreement of Sale." This Court has permitted the correction of this formal
defect by Plaintiff through the filing of her Amended Complaint. So there no longer exists the
question of whether Plaintiff is the lawful owner of the property or the "Installment Agreement
of Sale" on which judgment was entered. With Plaintiff's Amended Complaint permitted, the
defect of which Defendant complains is cured. Therefore, Defendant's petition to strike
Plaintiff s judgment entered against Defendant by confession is denied.
b. The Petition to Open the Judgment is Denied
Defendant contends that the judgment should be opened because they have averred a
meritorious defense. The defense advanced by Defendant is a breach of contract claim in which
Defendant alleges that Plaintiff failed to abide by the agreed upon terms of the "Installment
Agreement of Sale" when he combined 2101 Orchard Road with the adjacent property.
Defendant alleges that due to this combination, Plaintiff was not legally able to tender
performance as provided by the "Installment Agreement of Sale."
"[A] petition to open rests within the discretion of the trial court, and maybe granted if
the petitioner (1) acts promptly, (2) alleges a meritorious defense, and (3) can produce sufficient
8
evidence to require submission of the case to a jury." RAIT Ptnr., 957 A.2d at 1277. Here,
Defendant acted promptly in filing its motion to strike or open judgment pursuant to Pa. R.C.P.
2956.1(c)(2), which requires a petition to open or strike a confessed judgment be filed within
thirty days after service of a notice. However, this court is not convinced that Defendant has
raised a meritorious defense or can produce sufficient evidence to require the case to be
submitted to a jury.
The standard of sufficiency of the evidence which a court must employ to open a
confessed judgment "is that of the directed verdict-viewing all the evidence in the light most
favorable to the petitioner and accepting as true all evidence and proper inferences therefrom
supporting the defense while rejecting adverse allegations of the party obtaining the judgment."
Weitzman v. Ulan, 450 A.2d 173, 176 (1982). Furthermore, "the petitioner need not produce
evidence proving that if the judgment is opened, the petitioner will prevail." Liazis v. Kosta,
Inc., 618 A.2d 450, 453 (1992), app. denied, 637 A.2d 290 (1993).
The terms of the "Installment Agreement of Sale," required Defendant to make timely
payments. Defendant claims that due to the combination of the two property tracts, Plaintiff was
not legally able to tender performance as provided by the "Installment Agreement of Sale."
When viewing all the evidence in the light most favorable to Defendant, this court finds that the
combination of the properties did not affect Plaintiff's ability to perform under the terms of the
contract, and provide Defendant with a "one-third interest in the premises known and numbered
as 2101 Orchard Road, Camp Hill, Pennsylvania." Under the installment agreement of sale
signed on October 24, 1994, Defendant bought aone-third interest of the entire premises. This
interest is broader than its Paragraph #5 Possession and Occupancy Clause, which guaranteed
that Defendant was "entitled to possession of the third floor of the premises and an unspecified
9
one-third, but not less than 20, of the parking spaces in the parking areas adjacent to the
premises."24 Defendant used this third floor for over 14 years. Defendant would still own its
one-third interest in the premises had it abided by the terms of the contract for timely payment.
The failure of Defendant to qualify for a sizable loan is not a defense against the failure
to abide by the previously agreed upon terms for timely payment. Even under the extension
agreement on July 7, 2000, the entire agreement to transfer the one-third interest in the premises
was to have been completed by December 31, 2004. The Defendants did not even apply for the
loan it is seeking to use as a defense unti12008. Furthermore, even though the terms of both the
Installment Agreement of Sale and the Extension Agreement contemplated the creation of a
condominium structure, there is nothing in this record that indicates Defendant ever sought same.
The bank wanted a condominium agreement and the Defendants could not produce one. The
Defendants simply cannot produce sufficient evidence that the bank turned down the loan
commitment because the Plaintiff was unable to transfer the one-third interest in the premises.
Accordingly, this is not a meritorious defense.
Defendants also raise some issues regarding the roof on the premises in question.
Defendants admit that in pazagraph 22 of their Motion to Strike and/or Open Judgment of
Ejectment by Confession, that a new roof was installed on the building in 2005. There are no
allegations that the Defendant ever raised issues regarding the cost of this roof or any damages
they suffered as a result of an inadequate roof during the 3 year period from the time the new
roof was installed until Plaintiff's Complaint for Confession of Judgment in December of 2008.
Such a complaint at this time does not provide a meritorious defense to the fact that the
Defendants did not make timely payments on the original Installment Agreement of Sale and the
Extension Agreement all of which should have been concluded by December 31, 2004. It is
24 Complaint for Confession of Judgment in Ejectment, filed Dec. 29, 2008, Ex. A, Para. 5.
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clear from the record that if the Defendants had received the loan they requested from Orrstown
Bank, they would have fully paid the balance remaining on the outstanding purchase agreement
without any complaint regarding the roof.
Again, a Petition to Open a Confessed Judgment is an appeal to a Court's equitable
powers. It is clear that the Defendant does not have any meritorious defenses. As such, the
principles of equity do not dictate opening this judgment. Therefore, the Defendant's Petition to
Open the Judgment is denied.
Accordingly the following order is entered:
ORDER OF COURT
AND NOW, this 15th day of October, 2010, upon consideration of the record and the
briefs filed by both parties;
IT IS HEREBY ORDERED AND DIRECTED that:
(1) Plaintiff s Motion to File an Amended Complaint is GRANTED;
(2) Defendant's Motion to Strike Judgment by Confession is DENIED;
(3) Defendant's Motion to Open Judgment by Confession is DENIED.
Samuel L. Andes, Esq.
Attorney for the Plaintiff
R. Mark Thomas, Esq.
Attorney for the Defendant
By the Court,
M. L. Ebert, Jr.,
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