HomeMy WebLinkAbout09-4022
No V. Otto III, Esquire
I.D. No. 27763
Seth T. Mosebey, Esquire
I.D. No. 203046
MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER
MARTSON LAW OFFICES
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Attorneys for Plaintiff
ROBERT E. DIEHL, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
V. : NO. G y " y6 a c?v? c?ti.
CIVIL ACTION - LAW
MOHAWK CARPET DISTRIBUTION,
L.P., as successor-in-interest to ALADDIN
MILLS, INC.,
Defendant
NOTICE OF ENTRY OF JUDGMENT
PURSUANT TO PA. R.C.P. NO. 236
TO: Mohawk Carpet Distribution, L.P.
c/o Dawn Knowles, Esquire
160 South Industrial Blvd., S.W.
P.O. Box 12069
Calhoun, GA 30703-7002
You are hereby notified that on - ,judgment by confession was entered
against you in the above-captioned case in favor of Robert E. Diehl as follows:
Principal
Late Fees
Common Expenses
Costs of Suit (estimated)
Attorney Fees
Total:
Date: 9
$79,253.96
$2,400.00
$1,076.61
$500.00
0
$3,976.2
$87,206.77
Pr onotary
a
F:\FILES\C1ients\5436 Bob Dieh1\5436.92.com2.wpd
No V. Otto III, Esquire
I.D. No. 27763
Seth T. Mosebey, Esquire
I.D. No. 203046
MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER
MARTSON LAW OFFICES
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Attorneys for Plaintiff
ROBERT E. DIEHL,
V.
IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
MOHAWK CARPET DISTRIBUTION,
L.P., as successor-in-interest to ALADDIN
MILLS, INC.,
Defendant
:NO. '09-
:
CIVIL ACTION - LAW
CONFESSION OF JUDGMENT
Pursuant to the authority contained in the Commercial Lease attached as Exhibit "A" to the
Complaint filed in the above-captioned case, we appear for the Defendant, Mohawk Carpet
Distribution, L.P., as successor-in-interest to Aladdin Mills, Inc., and confess judgment in favor of
Robert E. Diehl against Mohawk Carpet Distribution, L.P., as successor-in-interest to Aladdin Mills,
Inc., as of May 22, 2009, as follows:
Principal $79,253.96
Late Fees $2,400.00
Common Expenses $1,076.61
Costs of Suit (estimated) $500.00
Attornev Fees 12.276.20
Total: $87,206.77
Respectfully submitted:
MARTSON LAW OFFICES
By: -!p J ,
t /
No V. Otto III, Esquire
I.D. No. 27763
Seth T. Mosebey, Esquire
Attorney I.D. No. 203046
FAFILEST Tents\5436 Bob Dieh1\5436.92.com2.wpd
No V. Otto III, Esquire
I.D. No. 27763
Seth T. Mosebey, Esquire
I.D. No. 203046
MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER
MARTSON LAW OFFICES
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Attorneys for Plaintiff
ROBERT E. DIEHL, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
MOHAWK CARPET DISTRIBUTION,
L.P., as successor-in-interest to ALADDIN
MILLS, INC., ;
Defendant
COMPLAINT FOR CONFESSION OF JUDGMENT
1. Robert E. Diehl ("Plaintiff') is an adult individual residing at 500 Redco Drive,
Enola, Cumberland County, Pennsylvania.
2. Mohawk Carpet Distribution, L.P. ("Defendant") is a Delaware limited partnership
with a principal place of business at 1910 Park 100 Drive, Glen Burnie, Maryland.
3. Defendant is the successor-in-interest to Aladdin Mills, Inc.
4. On June 6, 1995, Plaintiff and Aladdin Mills, Inc. entered into a Commercial Lease
("Lease"). A true and correct copy of the Lease is attached hereto and incorporated as Exhibit "A."
5. Pursuant to the Lease, Aladdin Mills, Inc. agreed to rent warehouse space located at
Suites 100 through 105, 13 Brenneman Circle, Mechanicsburg, Cumberland County, Pennsylvania
("Premises") from Plaintiff.
6. Pursuant to Paragraph 5 of the Lease, a holding over by the Lessee constituted a
renewal for a "like term."
7. Because the Lease was entered into for a period of five years, a renewal of the Lease
would operate as a renewal for five years.
8. Defendant held over the initial period of the Lease, resulting in a renewal of the Lease
for a period from August 1, 2000, through July 31, 2005.
9. Defendant held over on July 31, 2005, resulting in a renewal period from August 1,
2005, through July 31, 2010.
10. Defendant was current on its rent through May 31, 2006.
- 11. Thereafter, Defendant failed to make any timely rent payments.
12. Defendant ceased operations at the Premises and vacated the Premises on September
30, 2006. A copy of correspondence from Dawn H. Knowles dated July 7, 2006, confirming these
facts is attached hereto and incorporated as Exhibit "13."
13. Pursuant to Paragraph 3 of the Lease, "[i]f the Lessee should remove or prepare to
remove, or attempt to remove from the premises hereby leased before the expiration of the term or
at any time during the continuance of [the Lease], ... then ... rent for the term of twelve months at
the rate which it is then due and collectable under the terms of [the Lease] shall immediately become
due and payable and shall be collectable by distraint or otherwise."
14. Pursuant to Paragraph 12 of the Lease, "[t]he said Lessee hereby confesses judgment
for the rent reserved under this agreement of lease, together with an attorney fee of five per cent for
collection, and execution may be issued thereon from time to time for any rent due and owing under
this lease, and judgment in ejectment as herein provided may be entered concurrently therewith."
15. The Lease provides for a late penalty of $200.00 for each month that rent payments
are late.
16. Defendant failed to make any timely rent payments from October 2006 through
September 2007.
17. The total amount of late penalties owed to Plaintiff from October 2006 through
September 2007 is $2,400.00.
18. The monthly rental payments for October 2006 through September 2007 were
$7,750.36 per month.
19. On November 6, 2006, Defendant paid Plaintiff $7,750.36 as rent for October 2006.
20. Defendant has failed and refused to pay any additional rent since November 6, 2006.
21. The total amount of monthly rental payments due to Plaintiff for October 2006
through September 2007 is $85,253.96.
22. Pursuant to Paragraph 8 of the Lease, Defendant agreed to pay all bills for light, heat,
electricity, water, and other common expenses (collectively, "Common Expenses").
23. Defendant owes Common Expenses for 2007 in the amount of $1,076.61. A copy
of the invoice for Common Expenses is attached hereto and incorporated as Exhibit "C."
24. Plaintiff has retained Defendant's security deposit of $6,000.00 and provided
Defendant with a credit for this amount.
25. The total amount owed to Plaintiff as a result of Defendant's breach of the Lease is
$82,730.57, plus an attorney's fee of $3,976.20.
26. Judgment is not being entered by confession against a natural person in connection
with a consumer credit transaction.
27. The Lease has not been assigned.
28. Judgment has not been entered on the Lease in any jurisdiction.
29. Defendant defaulted on its obligations under the Lease by failing to pay rent, CAM
fees, and late fees.
WHEREFORE, Plaintiff requests that this Honorable Court enter judgment in his favor in
the amount of $86,706.77, plus costs, and any other relief this Court deems appropriate.
MARTSON LAW OFFICES
By &4 .7 ,
No V. Otto III, Esquir
I.D. No. 27763
Seth T. Mosebey, Esquire
I.D. No. 203046
10 East High Street
Carlisle, PA 17013
p (717) 243-1850
Dated: Ce%? ?/ Attorneys for Plaintiff
EXHIBIT A
V T
Robert E Diehl
500 Redco Drive, Enola, PA 17025
Rodeo 766-2995
Mobile 574-0500
COMMERCIAL LEASE
THIS AGREEMENT of Lease made this 06 day of June
A.D.1995. Between Robert E. Diehl of 500 REDCO Drive, Enola,
P 7025 (717-766-2995) Lessor and Aladdin Mills, Inc., of
a _???a?FG° ?4 • Corporation authorized to do bus
state of Pennsylvania.
WITNESSETH, that the Lessor, in consideration of the rents
and covenants hereinafter mentioned, do demise and lease unto
the said Lessee, to be used as office warehouse the premises
situate in the County of Cumberland and State of PA described
as follows, to wit:
Suites 100 thru 105, 13 Brenneman Circle,
Mechanicsburg, PA 17055. Containing 19,200 Sq.. ft.
nominal,heated warehouse space and one powder room. Outside
parking for vehicles in front and rear of the leased area.
TO HAVE AND TO HOLD UNTO THE LESSEE, subject to the
conditions of this agreement, for the term beginning on the
first day of August, 1995 and ending on the Thirty First day
of July, 2000. 2-00s,
IN CONSIDERATION OF WHICH the said Lessee agrees that they
will pay to the Lessor for the use of said premises, the sum
of Three Hundred Seventy Four Thousand Four Hundred Dollars,
payable as follows; viz, in monthly installments of
Year $ per Year
$72
000
00
per
th
$
2 ,
.
73
920
00 6,
000.00
3
4 ,
.
74,0880.00 6,160.00
6,240.00
5 75,840.00
6320.00
,320.00
Total 76,800.00
$374,440.00 6,400.00
in advance on the first day of each calendar month during the
term. First and last month rent shall be in advance upon the
signing of this Lease.
OPTION TO RENEW: There shall be an option to renew the Lease
for an additional five years, based on the following formula.
The lease rate shall be increased by the most current
month reported figure for the Consumer Price index, in
comparison to the CPI figure for the 48 months before. This
(3T/2:d 0S8ti2b2:01
009696LLZL 03G3N:W06J d22:90 X002-G2-(nON
figure shall be calculated to find the percent change in the
Consumer Price Index. CPI shall be Philadelphia Region Urban
Wage Earners. If the CPI shall be abolished then the current
method used by the US Government shall be implemented.
THE DZKIBE HEREIN CONTAINED is made and accepted on the
following express conditions.
1. No waste shall be committed; and at the end of the said
term the demised premises shall be delivered in as good
condition as at the commencement thereof, ordinary wear and
tear and unavoidable damage by fire, tempest and lightning
excepted.
2. The rent reserved shall be promptly paid on the several
days and times herein specified without deduction or
abatement, at the residence or principal office of Lessor.
3. If the Lessee should remove or prepare to remove, or
attempt to remove from the premises hereby leased before the
expiration of the term or at any time during the continuance
of this lease, or if the Lessee shall be in default in the
payment of any installment of rent for the period of ten
days, or should there be a default in the conditions as
herein contained, then in that event, rent for the term of
twelvemonths at the- rate which it is then due and
collectable under the terms of this lease shall immediately
become due and payable and shall be collectable by distraint
or otherwise.
4. At the expiration of the term, to the extent Lessee has
not maintained the demised premises in compliance with
Paragraph 1 here of, the demised premises will be restored at
the option of the Lessor in such condition so as to comply
with the requirements of Paragraph 1, and the cost will be
treated as additional rent due and owing under the terms of
the lease.
5. A holding over by the Lessee beyond the term of this
lease shall be a renewal of the term of this lease for
another like term, and the said renewal shall be under and
subject all the provisions as contained in this agreement of
lease; provided, however, that such renewal shall be at the
option of the Lessor.
6. The Lessor shall not be liable to the Lessee for any
damage which may be caused to the Lessee by failure of the
Lessor, if said failure is not due to any fault on his part,
to give possession herein demised, at the time agreed upon.
7. The Lessee shall not carry on any unlawful or immoral
business in or about the demised premises, and shall not
carry on any business which will endanger the building from
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1
i
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i
fire or cause forfeiture of any fire insurance that the
Lessor has or may hereafter have on said building.
8. The Lessee agrees to pay all bills which may be incurred
for light, heat, or power used or consumed upon the demised
premises, and also all bills for water rent which may accrue
for water used during the term of the lease. The Lessor
shall not be responsible in any way in the event that the
supply of heat is cut off by reason of any cause beyond the
control of the Lessor. And the Lessee does hereby release
the Lessor from any damage which may result to him by reason
of the failure of the supply of heat. Should the Lessee fail
to pay any bills as aforesaid, the Lessor shall have the
right to pay the same, and the amount as paid shall be
chargeable to the Lessee as additional rent. The Lessee
agrees to keep the plate glass insured at his own risk.
9. The Lessee agrees to keep the premises in a good
condition of repair. All refuse 21 any Kind shall be removed
from =M premises at tbg cost pf the Lessee _.t least once a
week or more to if necessary. All snow shall be cleaned
off from the sidewalks and steps before it shall be frozen
and hardened. Should the Lessee fail to comply with the
provisions of this clause of the lease, the Lessor may enter
the premises and make said repairs or remove said reuse and
do all other things as herein provided to be done by the
Lessee at the expense of the Lessee, and said expense thus
incurred may also be collected as additional rent under the
lease.
10. In the event of the filing of a petition in bankruptcy,
whether voluntary or involuntary, by or against the Lessee
herein, there shall become due immediately upon the filing of
the petition, rent for twelve months, at the rate that the
rent is payable under this agreement of lease, and the Lessor
shall have the further right in said event, to forfeit and
terminate this lease. The said forfeiture to be effective by
giving notice in writing to the Lessee herein or the person
then in charge of the demised premises. should an execution
issue against the Lessee out of any court, twelve months rent
shall thereupon become due and owing.
11. In the event that the premises occupied by the Lessee
shall during said term be destroyed by fire, thereby making
the premises untenantable and unfit for occupancy so that the
owners thereof deem it advisable to construct a new building,
the Lessor shall thereupon have the right to cancel and
terminate this lease upon giving fifteen days notice in
writing to the Lessee herein, and the term of this lease
shall thereupon cease at the expiration of fifteen days
after the expiration of said notice. In the event however,
that the said building shall be damaged by fire, but not
destroyed, the Lessor will thereupon cause the same to be
BZ/b:d 0S8ZD7zc01 0096962122 OOa3N:WO6j d2z:90 T002-S2-OON
repaired and restored to its former condition. Lessor is to
act with the greatest possible diligence, and if the said
fire shall have rendered the premised untenantable, payment
of rent thereunder shall be suspended from the time when the
Losses herein shall notify the Lessor of such condition,
until such time as the building is so repaired and again
ready for occupancy. Lessee herein agrees that in the event
that the building shall be so partially destroyed by fire as
to render said repairs necessary that the said lessor shall
thereupon have the right through his servants and agents, and
that the servants and agents or any contractor employed by
the Lessor shall have the right to take possession of the
premises for the purpose of making such repairs, and the
taking of possession shall not mean eviction of the
herein and shall in no manner effect this term of lease.
12. The said Lessee hereby confesses judgement for the rent
reserved under this agreement of lease, together with an
attorney fee of five per cent for collection, and execution
may be issued thereon from time to time for any rent due and
owing under this lease, and judgment in ejectment as herein
provided may be entered concurrently therewith.
13. At the end of said term, whether the same shall be
determined by forfeiture or expiration of the term, or upon
the breach of any of the conditions of this lease, it is
agreed that an amicable action of ejectment may be entered in
the Court of Common Pleas of Cumberland County, in which the
Lessors, their heirs or assigns, shall be plaintiff, and the
Lessees, and all who come into possession during the term or
continuance of this lease or under the Lessees, shall be
defendants, that judgment may be entered thereupon in favor
of the plaintiffs, without leave of court, for the premises
above described to have the same force and effect as if a
summons in ejectment had been regularly issued, legally
served and returned and that writs of habere facias
possessionem with clause of fi. fa. for all costs, may be
issued forthwith, waiving all errors and defects whatsoever
in entering said judgment, also waiving right of appeal, writ
of error or stay upon any writs of habere facias possessionem
which may issue upon the same.
14. And further, it is agreed and understood that Lessor,
his heirs, or assigns, may enter the premises leased during
the term, during normal business hours in the presence or
absence of Losses for the purpose of ascertaining whether the
said premises are kept in good order and repair. Further,
that the Lessor reserve the right to display a "for rent or
sale" sign upon said premises, and to show same to
prospective tenants or buyers.
15. All damages or injuries done to the said premises other
than those caused by fire or ordinary wear and tear or by the
acts or omission of the landlord shall be repaired by the
BT/S:d OS8T€b2:Oi 009696LLTL 0009d:WOdd d€2:90 T002-S2-SON
Lessee herein. And the Lessee covenants and agrees to make
said repairs upon five days notice to him by the Lessor, and
if he shall neglect to make said repairs or commence to make
the same promptly or within ten days after said notice as
given him, the Lessor shall have the right to make said
repairs at the expense and cost to the Lessee, and the amount
thereof may be collected as additional rent accruing for the
month following the date of said repairs, and if the said
expense is made at the expiration of the term, then the cost
so made may be collected by Lessor as an additional rent for
the use of the premises during the entire term.
16. And the said Lessee hereby accepts notice to quit,
remove from, and surrender up possession of the said demised
premises to the said Lessor, his heirs or assigns, at the
expiration of the said term, whenever it may be determined,
whether by forfeiture or otherwise, without any further
notice to the effect, all further notice being hereby waived.
And on failure to pay rent due, for the space of ten days
besides the distress, or upon breach of any other condition
of this lease the Lessee shall be a non-tenant, subject to
dispossession by the said Lessor and the said Lessor may
re-enter the premises and dispossess the Lessee without
thereby becoming a trespasser.
17. No showcase, sign or hanging or protruding sign or
permanent obstruction of any kind shall be kept or maintained
by the tenant on the reservation or sidewalk in front of the
demised premises, said space to be used only for purpose of
ingress and egress.
18. Lessee will bear, pay and discharge when and as the same
becomes due and payable all judgment and lawful claims for
damage or otherwise against Lessor arising from its use or
occupancy of said leased premises or the sidewalk in front
and side of said premises, and will assume the burden and
expense of defending all such suits, whether brought before
the expiration of this lease and will protest, indemnify and
save harmless the said party of first part, his agents,
servants, employees and public at large by reason of or on
account of the use of misuse of the premises hereby leased or
the sidewalk in front of the said premises, or any part
thereof, due to negligence of the Lessee or his agents.
i
19. And in consideration of securing the within lease at the
above stated rent, said Lessee does hereby release and
discharge said Lessor, his heirs or assigns, from any and all
liability for damage that may result from the bursting,
stoppage and leakage of any water pipe, gas pipe, sewer,
basin, water-closet, steam pipe and drain, and from all
liability for any and all damage caused by the water, gas,
steam, waste, and contents of said water pipes, gas pipes,
steam pipes, sewers, basins, water-closets and drains. All
mechanical and electrical equipment to be delivered in good
working order.
ST/9:d OSSM72:Oi 009696LLTL 00438:Woad db£c90 T002-S2-SON
20. It is expressly understood by the parties that the whole
agreement is embodied,in this agreement and that no part
or item is omitted.
21. The Lessee does hereby waive any and all demands for
payment of the rent herein provided for, either on the day
due or on any other day, either on the land itself or in any
other place, and agrees that such demand shall not be a
condition of re-entryior of recovery of possession without
legal process or by means of any action or proceedings
whatsoever.
22. Rents are to be delivered to Lessor's office by the ist
of each month. It isiagreed that there will be a penalty of
$200.00 for each month that rental payments are not delivered
on time.
23. All material and equipment shall maintain 18 inches
clearance to any walls, so as to avoid accidential damage.
24. Should there be a Municipal or other Governmental
assessment Lessee shall pay their percentage of such increase
based on the square foot percentage leased.
25. Lessee shall pay all taxes, Municipal or other
Governmental' assessment and insurance based on the square
footage of the building leased.
26. Should Lessee engage in or carry on any activity to
cause Lessors insurance to increase Losses shall pay such
cost.
27. Lessee shall provide a Certificate of Insurance showing
that his property is insured and that he is providing some
form of liability insurance. Also Lessee shall provide a
Waiver of subrogation on the Certificate.
28. Lessee shall be responsible for snow and ice removal
from the sidewalk and'steps. Lessor shall arrange to have
snow plowed, when snowfall is over 211, and Lessee shall pay
its percentage of costs based on the square feet leased.
29. Lessor shall be responsible for lawn and landscaping
maintenance and Lessee shall pay its percentage of such
expenses based on the square feet leased.
30. Lessee shall be provided with 12- 400 watt hi-pressure
Medal Halide lights in the warehouse area, and one receptacle
at the electrical panel. Lessee shall provide all additional
lighting, receptacles etc.
31. Lessee shall pay for any damage caused by chemical
reaction, erosion or corrosion done to the building from
Lessee's business operations.. 0
e
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00969621tiZ 00038:WOdd db2:90 ti002-S2-SON
W" is percentage leased. Lessee shall not be
responsible for the structural integrity of the buildin _
32.a Lessor shall be responsible for the maintenance o, the
stone access area for the truck traffic, and the maintenance
of the paved parking area, Lessee shall not be billed for
these two items during the first five year lease period.
Excluded from the above shall be line painting and cleaning
of the paved parking area.
32. Lessee shall be responsible for all maintenance on the
overhead doors and interior of the building. Lessee shall be
responsible for exterior maintenance of the building and
grounds based i
33. Less any respoonnsiable for all
basia ifPnecessary.
Witty s the ands and seals of the parties
fir above r' ten. and year
A d 1 s, In ert E. l ehl
Alad n Mid-Atlan is
attest:
t*34.Lessee shall have the right to sublease said premises
with Lessor approval. Such approval shall not be unreasonably
withheld.
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EXHIBIT B
ewov
TNOHAWK'
INDUSTRIES, INC.
July 7, 2006
DAWN H. KNOWLES
Attorney
(800) 241-4494 - ext. 42667
(706) 629-7721 - 42667
Faceimile (706) 624-2483
E-Mail: dawn knowlesemohawkind.corn
Mr. Robert E. Diehl
Redco
500 Redco Drive
Enola, PA 17025
VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Re: Suites 100-105, 13 Brenneman Circle, Mechanicsburg, PA
Dear Mr. Diehl:
Please be advised that Mohawk, the current occupant of the above-referenced property
shall vacate said premises, effective Saturday, September 30, 2006.
` Additionally, Mohawk hereby rescinds any offers made to Redco or you individually to
commence with another lease term.
Please feel free to contact me if you have any questions concerning this correspondence.
Very truly yours,
CC: Tom Withorn, Jeff Edwards
4uo4a //, lv?
Dawn H. Knowles
160 South Industrial Blvd., S.W. - P.O. Box 12069 - Calhoun, GA 30703-7002 - (706) 629-7721 - (800) 241-4494
EXHIBIT C
REDCO
Robert E Diehl
500 REDCO Drive
Enola, PA 17025
Phone 717-570500 Fax 717-7%-9600
REDC01®msn.com
TO Mr. Jeff Edwards SHIP
Mohawk-Aladdin TO Same
1910 Park 100 Drive
Glenn Burnie, MD 21061
Customer ID Mohawk-Aladdin
INVOICE
INVOICE # 13-001-
DATE: FEBRUARY 24, 2008
VENDOR PERCENTAGE DUE DATE
RATE
85.7142857% Upon Receipt
CAMS Jan 01, 2007 to May 18, 2007
QTY DATE DESCRIPTION UNIT PRICE LINE TOTAL
Dillsburg
septic 5-17-2007 Pum Se tic
p P
313.00
268.29
A Monko Various Snow Removal 705.00 604.29
A Monko Various Mow-Trim 106.00 90.86 .
PPL Monthly' Electricity 385.53 330.45
Insurance Credit Insurance (277.79) (238.11)
School Tax Credit Taxes (538.93) (461.94)
County Tax
i
i
I
i 138 days Taxes 563.23
? 482.77
TOTAL DISCOUNT 1076.61
SUBTOTAL
i
SALES TAX
Make checks payable to ROBERT E DIEHL TOTAL I 1076.61 1
i
THANK YOU FOR YOUR BUSINESS!
VERIFICATION
The foregoing Complaint is based upon information which has been gathered by my counsel
in the preparation of the lawsuit. The language of the document is that of counsel and not my own.
I have read the document and to the extent that it is based upon information which I have given to
my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent
that the content of the document is that of counsel, I have relied upon counsel in making this
verification.
This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904
relating to unsworn falsification to authorities, which provides that if I make knowingly false
averments, I may be subject to criminal penalties.
No V. Otto III, Esquire
I.D. No. 27763
Seth T. Mosebey, Esquire
I.D. No. 203046
MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER
MARTSON LAW OFFICES
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Attorneys for Plaintiff
ROBERT E. DIEHL, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
V. : NO.
CIVIL ACTION - LAW
MOHAWK CARPET DISTRIBUTION,
L.P., as successor-in-interest to ALADDIN
MILLS, INC.,
Defendant
NOTICES IN CONNECTION WITH JUDGMENTS BY CONFESSION
REQUIRED BY 42 PA. C.S.A. §2737.1. (Act 105 of 2000)
To: Mohawk Carpet Distribution, L.P., as successor-in-interest to Aladdin Mills, Inc.
PURSUANT TO 42 PA. C.S.A. SECTION 2737.1, IF YOU HAVE BEEN INCORRECTLY
IDENTIFIED AND HAD A CONFESSION OR JUDGMENT ENTERED AGAINST YOU,
YOU ARE ENTITLED TO COSTS AND REASONABLE ATTORNEY FEES AS
DETERMINED BY THE COURT.
INSTRUCTIONS REGARDING THE PROCEDURE TO STRIKE THE CONFESSED
JUDGMENT ARE SET FORTH BELOW:
Pennsylvania Rule of Civil Procedure 2959 - Striking Off Judgment
(a) (1) Relief from a judgment by confession shall besought by petition. Except as provided in
subparagraph (2), all grounds for relief whether to strike off the judgment or to open it must be
asserted in a single petition. The petition may be filed in the county in which the judgment was
originally entered, in any county to which the judgment has been transferred or in any other county
in which the sheriff has received a writ of execution directed to the sheriff to enforce the judgment.
(2) The ground that the waiver of the due process rights of notice and hearing was not
voluntary, intelligent and knowing shall be raised only:
(i) in support of a further request for a stay of execution where the court has not
stayed execution despite the timely filing of a petition for relief from the judgment and the
presentation of prima facie evidence of a defense; and
(ii) as provided by Pennsylvania Rule of Civil Procedure 2958.3 or Rule 2973.3.
(3) If written notice is served upon the petitioner pursuant to Rule 2956.1(c)(2) or Rule
2973.1(c), the petition shall be filed within thirty days after such service. Unless the defendant can
demonstrate that there were compelling reasons for the delay, a petition not timely filed shall be
denied.
(b) If the petition states prima facie grounds for relief the court shall issue a rule to show cause and
may grant a stay of proceedings. After being served with a copy of the petition the plaintiff shall file
an answer on or before the return of the rule. The return day of the rule shall be fixed by the court
by local rule or special order.
(c) A party waives all defenses and objections which are not included in the petition or answer.
(d) The petition and the rule to show cause and the answer shall be served as provided in Rule 440.
(e) The court shall dispose of the rule on petition and answer, and on any testimony, depositions,
admissions and other evidence. The court for cause shown may stay proceedings on the petition
insofar as it seeks to open the judgment pending disposition of the application to strike off the
judgment. If evidence is produced which in a jury trial would require the issues to be submitted to
the jury the court shall open the judgment.
(f) The lien of the judgment or of any levy or attachment shall be preserved while the proceedings
to strike off or open the judgment are pending.
(g) (1) A judgment shall not be stricken or opened because of a creditor's failure to provide a
debtor with instructions imposed by an existing statute, if any, regarding procedures to follow to
strike a judgment or regarding any rights available to an incorrectly identified debtor.
(2) Subdivision (g)(1) shall apply to (1) judgments entered prior to the effective date of
subdivision (g) which have not been stricken or opened as of the effective date and (2) judgments
entered on or after the effective date.
You may have other rights available to you other than as set forth in this notice. You
should take this paper to your lawyer at once. If you do not have a lawyer, go to or telephone
the office set forth below. This office can provide you with information about hiring a lawyer.
If you cannot afford to hire a lawyer, this office may be able to provide you with
information about agencies that may offer legal services to eligible persons at a reduced fee or
no fee.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, Pennsylvania
(717) 249-3166
No V. Otto III, Esquire
I.D. No. 27763
Seth T. Mosebey, Esquire
I.D. No. 203046
MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER
MARTSON LAW OFFICES
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Attorneys for Plaintiff
ROBERT E. DIEHL,
V.
MOHAWK CARPET DISTRIBUTION,
L.P., as successor-in-interest to ALADDIN
MILLS, INC.,
Defendant
NO.
CIVIL ACTION - LAW
CERTIFICATE OF RESIDENCE
We hereby certify that the last known addresses of the Defendant is:
Mohawk Carpet Distribution, L.P.
c/o Dawn Knowles, Esquire
160 South Industrial Blvd., S.W.
P.O. Box 12069
Calhoun, GA 30703-7002
The address of Plaintiff is: 14 Nancy Lane, Enola, PA 17025.
MARTSON LAW OFFICES
By: -22 a. 04?'V*
Seth T. Mosebey, Esquire
Date: Attorneys for Plaintiff
IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
s
No V. Otto III, Esquire
I.D. No. 27763
Seth T. Mosebey, Esquire
I.D. No. 203046
MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER
MARTSON LAW OFFICES
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Attorneys for Plaintiff
ROBERT E. DIEHL, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
V. : NO.
CIVIL ACTION - LAW
MOHAWK CARPET DISTRIBUTION,
L.P., as successor-in-interest to ALADDIN
MILLS, INC.,
Defendant
NOTICE UNDER RULE 2958.1 OF
JUDGMENT AND EXECUTION THEREON
Notice of Defendants' Rights
TO: Mohawk Carpet Distribution, L.P., as successor-in-interest to Aladdin Mills, Inc.
A judgment in the amount of $87,206.77 has been entered against you and in favor of the
plaintiff without any prior notice or hearing based on a confession of judgment contained in a written
agreement or other paper allegedly signed by you. The sheriff may take your money or other
property to pay the judgment at any time after thirty (30) days after the date on which this notice is
served on you.
You may have legal rights to defeat the judgment or to prevent your money or property from
being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND
PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS
NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET
FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. THIS OFFICE CAN
PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO
PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL
SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, Pennsylvania
(717) 249-3166
MARTSON LAW OFFICES
By J,
No V. Otto III, Esquir
I.D. No. 27763
Seth T. Mosebey, Esquire
Attorney I.D. No. 203046
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Attorneys for Plaintiff
Date: all? 7
No V. Otto III, Esquire
I.D. No. 27763
Seth T. Mosebey, Esquire
I.D. No. 203046
MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER
MARTSON LAW OFFICES
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Attorneys for Plaintiff
ROBERT E. DIEHL, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
V. : NO.
CIVIL ACTION - LAW
MOHAWK CARPET DISTRIBUTION,
L.P., as successor-in-interest to ALADDIN
MILLS, INC.,
Defendant
AFFIDAVIT
I, Seth T. Mosebey, Esquire, attorney for Plaintiff, hereby certify, that to the best of my
knowledge, that the Confession of Judgment for Money attached is not being entered against a
natural person in connection with a consumer credit transaction.
Seth T. Mosebey, Esquire
Sworn to and subscribed
before me this/14uday of June, 2009.
444 ) 7, G)?
N ublic
COMMONWEALTH OF PENNSYLVANIA
NotwW Seal
Mary M. Prkxk Notary MAC
CaMO SM, Crsrlbaft d C0r r1ty
My CAmrrrlftn E*hn /48.18.2011
Member, Pennsylvenis A"006 on
No V. Otto III, Esquire
I.D. No. 27763
Seth T. Mosebey, Esquire
I.D. No. 203046
MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER
MARTSON LAW OFFICES
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Attorneys for Plaintiff
ROBERT E. DIEHL?
IN THE COURT OF COMMON PLEAS OF
Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA
V.
NO.
MOHAWK CARPET DISTRIBUTION, ' CIVIL ACTION - LAW
L.P., as successor-in-interest to •
MILLS, INC., ALADDIN
Defendant
AFFIDAVIT AS TO MILITARY SERVICE
COMMONWEALTH OF PENNSYLVANIA )
COUNTY OF CUMBERLAND :SS.
Seth T. Mosebey, Esquire, being duly sworn according to law, deposes an
authority to make this affidavit on behalf ofhis client and t and says that he has
to the best ofhis knowledge, information
and belief, the Defendant Mohawk Carpet Distribution, L.P., as successor-in-interest
to Aladdin
Mills, Inc., is an entity and, therefore, is not in the military service of the U
that he has knowledge that the said Defendant is now located at:
P.O. Box 12069, Calhoun, GA 30703-7002.
Sworn to and subscribed before me
this 4?t day of June, 2009.
QN Public
160 South Industrial Blvd., S.W.,
. Z'&? ')" 0" ? (/
Seth T. Mosebey, Esqu e
COMMONWEq ""NN8YLVAMA
Noww'gew
SM. OxnbMird '?°^ E ?+D 4 21
My Ca'ntN?
Munbxr, Mn"40VAnrf AMaaeo" of N?Natlaa
CERTIFICATE OF SERVICE
I, Mary M. Price, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller,
hereby certify that a copy of the foregoing Complaint for Confession of Judgment was served this
date by depositing same in the Post Office at Carlisle, PA, first class certified mail, return receipt
requested, postage prepaid, addressed as follows:
Mohawk Carpet Distribution, L.P.
c/o Sawn Knowles, Esquire
160 South Industrial Blvd., S.W.
P.O. Box 12069
Calhoun, GA 30703-7002
MARTSON LAW OFFICES
Mari W.Price
Ten Eas High Street
Carlisle, PA 17013
(717) 243-3341
Dated: ?/1(o 19
O THE y
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F:\FILES\Clients\5436 Bob DiehA5436.92.ans
No V. Otto III, Esquire
I.D. No. 27763
Seth T. Mosebey, Esquire
I.D. No. 203046
MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER
MARTSON LAW OFFICES
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Attorneys for Plaintiff
ROBERT E. DIEHL, : IN THE COURT OF COMMON PLEAS OF
Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA
v. : NO. 09-4022
CIVIL ACTION -LAW
MOHAWK CARPET DISTRIBUTION,
L.P., assuccessor-in-interest to ALADDIN
MII,LS, INC.,
Defendant
PLAINTIFF'S ANSWER TO DEFENDANT'S PETITION
TO STRIKE OR OPEN CONFESSED JUDGMENT
AND NOW, comes the Plaintiff, Robert E. Diehl ("Plaintiff '), by and through his counsel,
MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, and files this Answer to
Defendant's Petition to Strike or Open Confessed Judgment, and in support thereof, avers the
following:
I. PARTIES AND BACKGROUND
1. Admitted.
2. Admitted.
3. Admitted in part and denied in part. It is admitted that Plaintiff commenced this
action on June 16, 2009, by filing a Complaint for Confession of Judgment against Defendant based
upon a commercial lease. It is denied that Plaintiff filed its Complaint for Confession of Judgment
pursuant to Pa. R.C.P. 2951(a). Plaintiff filed its Complaint for Confession of Judgment pursuant
to Pa. R.C.P. 2951(b).
4. Admitted.
5. Admitted.
6. Admitted.
7. Admitted.
8. Admitted.
9. Denied. Mr. Edwards' correspondence dated January 3, 2005, is a document which
speaks for itself. Any legal inference attributed to this correspondence is denied as a conclusion of
law to which no response is required under the Pennsylvania Rules of Civil Procedure.
10. Denied. Plaintiff s correspondence dated February 7, 2005, is a document which
speaks for itself. Any legal inference attributed to this correspondence is denied as a conclusion of
law to which no response is required under the Pennsylvania Rules of Civil Procedure.
11. Admitted, with clarification. Mr. Edwards' request in his letter of January 3, 2005,
was conditioned on Plaintiff's approval.
12. Denied. Plaintiff s letter dated July 6, 2005, is a document which speaks for itself.
By way of further response, it is denied that the parties had a verbal agreement to extend the existing
renewal term rather than renewing the Lease for a third five-year term.
13. Denied. Plaintiff s letter dated July 6, 2005, is a document which speaks for itself.
Any legal inference attributed to the letter is denied as a conclusion of law to which no response is
required under the Pennsylvania Rules of Civil Procedure.
14. Denied as a conclusion of law to which no response is required under the
Pennsylvania Rules of Civil Procedure.
15. Denied as a conclusion of law to which no response is required under the
Pennsylvania Rules of Civil Procedure.
16. After reasonable investigation, Plaintiff is without sufficient knowledge or
information to form a belief as to the truth of this averment.
17. Denied. Plaintiff's correspondence dated August 9, 2005, is a document which
speaks for itself. Any legal inference attributed to this letter is denied as a conclusion of law to
which no response is required under the Pennsylvania Rules of Civil Procedure.
18. Denied. Plaintiff s correspondence dated August 9, 2005, is a document which
speaks for itself. Any legal inference attributed to this letter is denied as a conclusion of law to
which no response is required under the Pennsylvania Rules of Civil Procedure.
19. Denied. Defendant was current on its rent through May 31, 2006. Thereafter,
Defendant failed to make any timely rent payments.
20. Admitted.
21. Denied. Plaintiff s letter dated July 7, 2006, is a document which speaks for itself.
Any legal inference attributed to this letter is denied as a conclusion of law to which no response is
required under the Pennsylvania Rules of Civil Procedure.
22. Denied. Plaintiffls letter dated July 7, 2006, is a document which speaks for itself.
Any legal inference attributed to this letter is denied as a conclusion of law to which no response is
required under the Pennsylvania Rules of Civil Procedure.
23. Admitted in part and denied in part. It is admitted that Defendant made rent payments
through September 2006. It is denied that Defendant made any timely rent payments after May 31,
2006. Furthermore, it is denied that the payments made by Defendant constitute all rent payments
due under the Lease.
24. Admitted in part and denied in part. It is admitted that Defendant informed Plaintiff
that it had completed all agreed upon repairs and that it was returning possession of the premises to
Plaintiff. It is denied that such a statement and accompanying conduct absolved Defendant of any
additional payment.
II. GROUNDS FOR RELIEF
A. Invalidity of Warrant of Attorney
25. The forgoing paragraphs are incorporated herein by reference.
26. Admitted.
27. Denied as a conclusion of law to which no response is required under the
Pennsylvania Rules of Civil Procedure.
28. Denied. By holding over, the Lease was renewed for an additional 5-year period.
29. Denied as a conclusion of law to which no response is required under the
Pennsylvania Rules of Civil Procedure.
WHEREFORE, Plaintiff requests that this Honorable Court deny Defendant's Petition to
Open or Strike Confessed Judgment.
B. Nonoccurrence of Default or Conditions Precedent
30. The foregoing paragraphs are incorporated herein by reference.
31. Denied. The warrant of attorney is a writing which speaks for itself.
32. Admitted in part and denied in part. It is admitted that as of January 2005, Defendant
expressed an interest in renewing for only 18-24 months. It is denied that any short-term extension
was ever executed by the parties.
33. Denied. The correspondence between the parties are documents which speak for
themselves. It is denied that the parties entered into an agreement to extend the Lease for a period
of less than five years.
34. Denied as a conclusion of law to which no response is required under the
Pennsylvania Rules of Civil Procedure.
35. Denied as a conclusion of law to which no response is required under the
Pennsylvania Rules of Civil Procedure.
36. Denied as a conclusion of law to which no response is required under the
Pennsylvania Rules of Civil Procedure.
37. Denied as a conclusion of law to which no response is required under the
Pennsylvania Rules of Civil Procedure.
3 8. Denied as a conclusion of law to which to response is required under the Pennsylvania
Rules of Civil Procedure.
WHEREFORE, Plaintiff requests that this Honorable Court deny Defendant's Petition to
Open or Strike Confessed Judgment.
C. Failure to Properly Assess Or Account For Damages
39. The foregoing paragraphs are incorporated herein by referenced.
40. Denied as a conclusion of law to which no response is required under the
Pennsylvania Rules of Civil Procedure.
41. Denied. The warrant of attorney is a writing which speaks for itself.
42. Admitted.
43. Denied. The warrant of attorney is a writing which speaks for itself. Furthermore
the averment contained in this paragraph constitutes a conclusion of law to which no response is
required under the Pennsylvania Rules of Civil Procedure.
44. Denied as a conclusion of law to which no response if required under the
Pennsylvania Rules of Civil Procedure.
WHEREFORE, Plaintiff requests that this Honorable Court deny Defendant's Petition to
Open or Strike Confessed Judgment.
D. Promissory Estoppel
45. The foregoing paragraphs are incorporated herein by reference.
46. Denied. The correspondence referenced in this averment are documents which speak
for themselves. Any legal inference attributed to these writings are denied as conclusions of law to
which no response is required under the Pennsylvania Rules of Civil Procedure.
47. After reasonable investigation, Plaintiff is without knowledge or information
sufficient to form a belief as to the truth of this averment.
48. After reasonable investigation, Plaintiff is without knowledge or information
sufficient to form a belief as to the truth of this averment.
49. Denied as a conclusion of law to which no response is required under the
Pennsylvania Rules of Civil Procedure.
50. Denied as a conclusion of law to which no response is required under the
Pennsylvania Rules of Civil Procedure.
51. Denied as a conclusion of law to which no response is required under the
Pennsylvania Rules of Civil Procedure.
WHEREFORE, Plaintiff requests that this Honorable Court deny Defendant's Petition to
Open or Strike Confessed Judgment.
MARTSON LAW OFFICES
No V. Otto III, Esquire
I.D. No. 27763
Seth T. Mosebey, Esquire
I.D. No. 203046
10 East High Street
Carlisle, PA 17013
(717) 243-1850
Dated: ~ ~~ 3 ~ ~ Attorneys for Plaintiff
VERIFICATION
The foregoing Answer to Defendant's Petition to Strike or Open Confessed Judgment is
based upon information which has been gathered by my counsel in the preparation of the lawsuit.
The language of the document is that of counsel and not my own. I have read the document and to
the extent that it is based upon information which I have given to my counsel, it is true and correct
to the best of my knowledge, information and belief. To the extent that the content of the document
is that of counsel, I have relied upon counsel in making this verification.
This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904
relating to unsworn falsification to authorities, which provides that if I make knowingly false
averments, I may be subject to criminal nenaltiec
CERTIFICATE OF SERVICE
I, Mary M. Price, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller,
hereby certify that a copy of the foregoing Response to Petition to Open or Strike Confessed
Judgment was served this date by depositing same in the Post Office at Carlisle, PA, first class
certified mail, return receipt requested, postage prepaid, addressed as follows:
Steven J. Schiffinan, Esquire
SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P.C.
2080 Linglestown Road, Suite 201
Harrisburg, PA 17110-9670
MARTSON LAW OFFICES
By
M~ry~1. Price
Ten East High Street
Carlisle, PA 17013
(717) 243-3341
Dated: 8"~/3~0
r~~~~([^^~~
2A~9 AUG 13 'M 3~ 0~
I~ NI~S~I
STEPHEN L. BANKO, JR., ESQUIRE
Pa. Supreme Court I. D. No. 41727
MARGOLIS EDELSTEIN
3510 Trindle Road
Camp Hill, PA 17011
Telephone: (717) 760-7501
FAX: (717) 975-8124 Attorney for Defendant,
E-mail: sbanko margolisedelstein.com Central Penn Asphalt, Inc.
68. The answers and averments contained in paragraphs 1 through 62 of the
Answer and New Matter of Defendant, Central Penn Asphalt, Inc. ("Central Penn"), are
incorporated herein by reference as if set forth in their entirety.
69. Denied. The allegations contained in this paragraph state a legal conclusion
to which no response is necessary. By way of further answer, to the extent an answer is
deemed to be required, the answer contained in paragraph 68 hereof is incorporated
herein by reference as if set forth in its entirety.
70. Denied. The answer contained in paragraph 69 hereof is incorporated herein
by reference as if set forth in its entirety.
WHEREFORE, Defendant, Central Penn Asphalt, Inc., demands judgment in its
favor and against all parties to the instant action including Plaintiffs and Wal-Mart Stores,
Inc.
Date:
~(~~ ~`~'
MP~ S ELSTEIN
By:
H L. BAN O, J R.
Counse or Defend nt,
Central Penn Asphailt, lnc.
I HEREBY CERTIFY that I served a true and correct copy of the foregoing on all
counsel of record by placing the same in the United States mail at Camp Hill,
Pennsylvania, first-class postage prepaid, on the day of ,
2009, and addressed as follows:
Stephen G. Held, Esquire
Handler, Henning & Rosenberg, LLP
1300 Linglestown Road
Harrisburg, PA 17110
(Counsel for Plaintiff)
DDRTC
3300 Enterprise Parkway
Beachwood, OH 44122
(Defendant)
Patrick L. McDonnell, Esquire
Nancy E. Zangrilli, Esquire
McDonnell & Associates, P.C.
Metropolitan Business Center
860 First Avenue
Suite 5B
King of Prussia, PA 19406
(Counsel for Defendant, V1fal-Mart Stores, Inc.)
Angela M. Gayman, Secretary
~~~
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