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HomeMy WebLinkAbout09-5660STEPHENSON EQUIPMENT, INC., Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW V. PRECISE GEOSYSTEMS, INC. NO. 5(o(o 0 0,1"i(Term Defendant CONFESSION OF JUDGMENT Pursuant to the authority contained in the warrant of attorney, the original or a copy of which is attached to the complaint filed in this action, I appear for the defendant and confess judgment in favor of the plaintiff and against defendant as follows: Principal Sum $ 11,982.29 Other authorized items: Five Percent (5%) Late Charge $ 502.89 Interest through August 12, 2009 $ 2,008.54 Attorney's fees (15%) $ 2,098.62 Total through August 12, 2009 $ 16,592.34 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 (717) 255-8005 OF riC ?TARP, 9 AUG 14 PM 1: 11 R-NOW CQLWTY John A. Feichtel, Esquire Keefer Wood Allen & Rahal, LLP Attorney #77426 Attorneys for Plaintiff 210 Walnut Street Harrisburg, PA 17101 Ph: (717) 255-8005 Fx: (717) 255-8050 j feichtelCoDkeeferwood.com STEPHENSON EQUIPMENT, INC., IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW V. : PRECISE GEOSYSTEMS, INC. NO. 09 _ &A00 e.-V1,( -ter wt Defendant COMPLAINT FOR CONFESSION OF JUDGMENT AND NOW, COMES plaintiff, Stephenson Equipment, Inc., by and through its attorneys, Keefer Wood Allen & Rahal, LLP, and files the following confession of judgment, averring as follows: Plaintiff is Stephenson Equipment, Inc. ("Stephenson"), a Pennsylvania business corporation with an office at 7201 Paxton Street, Harrisburg, Dauphin County, Pennsylvania 17111. 2. Defendant is Precise Geosystems, Inc., a Pennsylvania business corporation with an office at 3806 Market Street, Camp Hill, Cumberland County, Pennsylvania 17011. 3. On May 1, 2006, defendant executed a promissory note containing a confession of judgment clause (the "Note") in the amount of $38,300.00 in favor of Stephenson, a true and correct copy of which is attached hereto as Exhibit "A" and incorporated herein by reference. 4. As provided in the Note, principal and interest was to be paid monthly. 5. Defendant, as "Maker" of the Note, has failed and continues to fail to make the principal and interest payments and has failed to cure such failure. Therefore, it is in default under the Note. 6. The principal balance that remains unpaid under the Note ($11,982.29) is accelerated and immediately due and payable as a result of defendant's default. 7. Interest in the amount of $2,008.54 has accrued on the principal through August 12, 2009, and accrues at $4.85 per diem. 8. All interest accrued but unpaid under the Note is immediately due and payable as a result of defendant's default. 9. The Note provides that Stephenson is entitled to recovery of late charges of five percent (5%) on payments not made timely. 10. The Note provides that Stephenson is entitled to recovery of a reasonable attorney's commission. 11. Stephenson is entitled to judgment by confession against defendant for the following amounts: $ 11,982.29 Principal balance 2,008.54 Interest through August 12, 2009 502.89 Five Percent (5%) Late Charge 2,098.62 Attorney's Commission Fifteen Percent (15%) 16,592.34 Total through August 12, 2009 12. Stephenson has not assigned the Note. 13. Judgment has not been entered on the Note in any jurisdiction. -2- 14. The judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. WHEREFORE, pursuant to the warrant for confession of judgment set forth in the Note, Stephenson demands judgment in its favor and against defendants in the amount of Sixteen Thousand Five Hundred Ninety-Two Dollars and Thirty-Four Cents ($16,592.34), together with continuing interest on the principal balance at $4.85 per diem from August 12, 2009, and such other relief as is appropriate under the circumstances. Respectfully submitted, KEEFER WOOD ALLEN & RAHAL, LLP Dated: August 2009 HN A. EI Attorney I.D. #77426 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 (717) 255-8005 Attorneys for plaintiff -3- VERIFICATION The undersigned, Robert M. Criste, Treasurer and Chief Financial Officer of Stephenson Equipment Inc., hereby verifies and states that: He is authorized to sign this verification on behalf of Stephenson Equipment, Inc.; 2. The facts set forth in the foregoing Complaint for Confession of Judgment are true and correct to the best of his knowledge, information, and belief; and 3 He is aware that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unworn falsification to authorities. Robert M. Criste -4- NOTE $ 38,300.00 May 1, 2006 FOR VALUE RECEIVED, PRECISE GEOSYSTEMS, INC. ("Maker"), promises to pay to the order of PRECISE POSITIONING PRODUCTS, a division of STEPHENSON EQUIPMENT, INC., (together with his successors and assigns and any other transferee or successor then becoming holder of this Note, "Payee"), the sum of $ 3 8,300.00 together with all interest, costs, expenses and other sums payable by Maker to Payee in connection with this Note. Payments of principal, interest and any other amounts payable by Maker to Payee on this Note shall be made in lawful money of the United States of America at the office of Payee as follows: 7201 Paxton Street, Harrisburg, Pennsylvania 17111, or at such other place as Payee may from time to time designate by written notice to Maker. 1. Interest. Commencing as of the date hereof and continuing until repayment.--ity full of all sums due hereunder, the unpaid principal sum of this Note shall bear interest at a fixed annual rate of interest of eight and one-half (8 1/2%) percent (the "Interest Rate"). Interest shall accrue daily. All computations of interest shall be made on the basis of a year of three hundred sixty (360) days, or the actual number of days occurring in the period for which interest is payable. 2. Payments and Maturity. Monthly principal and interest payments of NINE HUNDRED FIFTY DOLLARS ($950.00) for 48 months. Payments shall commence on June 1, 2006. Successive payments shall be due on the same day of each month. All payments shall be applied to accrued interest first and then principal. The term of this Note shall be four (4) years, with remaining principal and any accumulated interest due and payable in full on May 1, 2010 ("Maturity Date"). 3. Optional Prepayments. Maker shall have the right, at any time, to prepay the outstanding principal amount of this Note, in whole or in part from time to time (without premium or penalty), provided that Maker contemporaneously therewith pays Payee all accrued but unpaid interest together with all other sums then due hereunder or on account hereof. 4. Late Charges and Default Interest. Any payment of principal or interest not paid within five (5) business days after the date on which it is due shall result in a late charge in the amount of five percent (5%) of the payment so due. The assessment or collection of such charge shall not be construed as a waiver by Payee of any default occasioned by the failure of Maker to make such payment within five (5) business days of its due date. 5. Application of Payments. Each and all of the payments made hereunder shall be applied first to fees and costs due to Payee; second, to accrued and unpaid interest; and third, to the principal balance due hereunder. 6. Events of Default. All of the following shall be events of default ("Events of Default") hereunder: (a) if Maker fails to make any payment under this Note when due, which default is not cured within five (5) business days; (b) if Maker becomes insolvent or makes an assignment for the benefit of creditors, or if any petition is filed by or against Maker under any provision of any law or statute alleging that Maker is insolvent or unable to pay debts as they mature; (c) the entry of any judgment against Maker or the issuing of any attachment or garnishment against any property of Maker; or (d) if Maker otherwise fails to perform its obligations under this Note or under the Stock Purchase Agreement giving rise to this obligation. Upon the occurrence of an Event of Default, Payee, at its option and without further notice to Maker, may declare immediately due and payable the entire unpaid principal sum due hereunder, with interest accrued thereon, and all other charges and sums due by Maker under this Note; and payment thereof may be enforced and recovered in whole or in part at any time by one or more of the remedies provided in this Note, or at law or equity. In such case Payee may also recover all costs of suit and other expenses in connection therewith, together with reasonable attorneys' fees. 7. Confession of Judgment. UPON EVENT OF DEFAULT UNDERSIGNED DOES HEREBY IRREVOCABLY AUTHORIZE AND EMPOWER ANY PROTHONOTARY, CLERK OR ATTORNEY OF COURT OF RECORD OF PENNSYLVANIA OR ELSEWHERE TO APPEAR FOR AND ENTER JUDGMENT AGAINST IT FOR THE UNPAID PRINCIPAL SUM DUE HEREUNDER, TOGETHER WITH ALL ACCRUED AND UNPAID INTEREST, IF ANY, AND ALL OTHER CHARGES OR SUMS DUE HEREUNDER, TOGETHER WITH A REASONABLE ATTORNEYS' COMMISSION FOR COLLECTION, WITH OR WITHOUT DECLARATION, WITH COSTS OF' SUIT, RELEASE OF ERRORS, WITHOUT STAY OF EXECUTION; AND UNDERSIGNED ALSO WAIVES THE RIGHT OF INQUISITION ON ANY REAL ESTATE THAT MAY BE LEVIED UPON TO COLLECT THE NOTE, AND DOES HEREBY VOLUNTARILY CONDEMN THE SAME, AND AUTHORIZE THE PROTHONOTARY TO ENTER UPON THE WRIT OF EXECUTION SAID VOLUNTARY CONDEMNATION; AND FURTHER AGREES THAT SAID REAL ESTATE MAY BE SOLD ON A WRIT OF EXECUTION, AND UNDERSIGNED HEREBY WAIVES AND RELEASES ALL RELIEF FROM ANY AND ALL APPRAISEMENT, STAY OF EXEMPTION LAWS OF ANY STATE NOW IN FORCE OR HEREINAFTER TO BE PASSED. IF COPIES OF THIS NOTE, VERIFIED BY AFFIDAVIT OF THE HOLDER HEREOF OR SOMEONE ON THE HOLDER'S BEHALF, HAS BEEN FILED IN SUCH ACTION, IT WILL NOT BE NECESSARY TO FILE THE ORIGINAL OF THIS NOTE AS A WARRANT OF ATTORNEY. THE AUTHORITY AND POWER TO APPEAR FOR AND ENTER JUDGMENT AGAINST UNDERSIGNED WILL NOT BE EXHAUSTED BY THE INITIAL EXERCISE OF THE AUTHORIZED POWER, AND THE POWER MAY BE EXERCISED FROM TIME TO TIME AS OFTEN AS THE HOLDER DEEMS NECESSARY OR DESIRABLE; AND THIS INSTRUMENT WILL BE A SUFFICIENT WARRANT. THE PRECEDING PARAGRAPH SETS FORTH A WARRANT OF AUTHORITY FOR AN ATTORNEY, PROTHONOTARY OR CLERK TO CONFESS JUDGMENT 0 R2°R AGAINST UNDERSIGNED. IN GRANTING THIS WARRANT OF ATTORNEY TO CONFESS JUDGMENT, UNDERSIGNED HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, AND, AFTER CONSULTATION WITH LEGAL COUNSEL OF ITS OWN CHOOSING, UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS IT HAS OR MAY HAVE TO PRIOR NOTICE, AND AN OPPORTUNITY FOR PRIOR HEARING UNDER THE CONSTITUTIONS AND LAWS OF THE UNITED STATES OF AMERICA, THE COMMONWEALTH OF PENNSYLVANIA AND ALL OTHER APPLICABLE JURISDICTIONS. UNDERSIGNED UNDERSTANDS THE MEANING AND EFFECT OF THE WARRANT OF AUTHORITY TO CONFESS JUDGMENT CONTAINED IN THE FOREGOING PARAGRAPHS. SPECIFICALLY, UNDERSIGNED UNDERSTANDS, AMONG OTHER THINGS, THAT (I) UNDERSIGNED IS RELINQUISHING THE RIGHT TO HAVE NOTICE, AN OPPORTUNITY TO BE HEARD, AND THE RIGHT TO HAVE THE BURDEN OF PROOF OF DEFAULT REST ON PAYEE PRIOR TO THE ENTRY OF JUDGMENT, (II) THE ENTRY OF JUDGMENT MAY RESULT IN A LIEN ON UNDERSIGNED'S PROPERTY, (III) UNDERSIGNED'S PROPERTY MAY BE TAKEN TO PAY THE PRINCIPAL AMOUNT, INTEREST, LATE CHARGES, COST'S AND ATTORNEYS' FEES AS PROVIDED ABOVE. TO THE EXTENT PERMITTED BY LAW, ACTING UNDER REPRESENTATION OF COUNSEL, UNDERSIGNED HEREBY IRREVOCABLY WAIVES ANY DUE PROCESS RIGHTS TO PREJUDGMENT NOTICE AND HEARING AND/OR POST-SEIZURE RELIEF ARISING IN CONNECTION WITH, OR IN ANY WAY RELATED TO, PAYEE'S RIGHT TO CONFESS JUDGMENT AGAINST UNDERSIGNED AS HEREIN PROVIDED, AND UNDERSIGNED ACKNOWLEDGES AND UNDERSTANDS THAT BY WAIVING THESE RIGHTS, UNDERSIGNED HAS CONSENTED TO ALLOW PAYEE TO ENTER A COURT JUDGMENT AGAINST UNDERSIGNED AND TO SEIZE UNDERSIGNED'S PROPERTY WITHOUT PRIOR NOTICE OR HEARING IN ORDER TO SATISFY THE OBLIGATIONS OWED BY UNDERSIGNED TO PAYEE. UNDERSIGNED HEREBY KNOWINGLY AND IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE, OR OTHERWISE INVOLVING, THIS NOTE. UNDERSIGNED FURTHER IRREVOCABLY CONSENTS TO THE JURISDICTION AND VENUE OF ANY STATE OR FEDERAL COURT SITTING IN OR FOR CUMBERLAND COUNTY, PENNSYLVANIA. 8. Cumulation of Remedies. The remedies of Payee as provided hereunder, together with all other remedies provided at law or equity, shall be cumulative and concurrent, and may be pursued singly, successively or together at the sole discretion of Payee, and may be exercised as often as occasion therefor shall occur; and the failure to exercise any such right or remedy shall in no event be construed as a waiver or release thereof. '0% 9. Waiver and Release. To the extent permitted by law, Maker hereby waives and releases all errors, defects and imperfections in any proceedings instituted by Payee under the terms hereof, as well as all benefit that might accrue to Maker by virtue of any present or future laws exempting any property, or any part of the proceeds arising from any sale of any property, from attachment, levy or sale under execution, or providing for any stay of execution, exemption from civil process, or extension of time for payment; and Maker agrees that any property that may be levied against pursuant to a judgment obtained by virtue hereof, on any writ of execution issued thereon, may be sold on any such writ in whole or in part in any order desired by Payee. Maker hereby waives presentment for payment, demand, notice of demand, notice of non- payment or dishonor, protest and notice of protest of this Note, and all other notices in connection with the delivery, acceptance, performance, default or enforcement of the payment of this Note, and it agrees that its liability shall be unconditional, without regard to the liability of any other party, and shall not be affected in any manner by an indulgence, extension of time, renewal, waiver or modification granted or consented to by Payee. Maker consents to any and all extensions of time, renewals, waivers, or modifications that may be granted by Payee with respect to the payment or other provisions of this Note. Payee shall not be deemed, by any act of omission or commission, to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by Payee, and then only to the extent specifically set forth in the writing. A waiver on one event shall not be construed as continuing or as a bar to or waiver of any right or remedy to a subsequent event. 10. Governing Law. This instrument shall be governed by and construed according to the laws of the Commonwealth of Pennsylvania, including its statutes of limitation but without regard to its rules governing conflict of laws. 11. Jurisdiction and Venue. MAKER IRREVOCABLY CONSENTS TO THE JURISDICTION AND VENUE OF ANY STATE COURT SITTING IN DAUPHIN COUNTY, PENNSYLVANIA, OR ANY FEDERAL COURT SITTING IN DAUPHIN COUNTY, PENNSYLVANIA. 12. Captions. The captions or headings used herein are for the convenience of reference only and shall not be deemed to define, limit or describe the scope or intent of this Note. 13. Partial Invalidity. In the event that any provision of this Note (or any part of any provision) is held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions (or remaining parts of the affected provision) of this Note; but this Note shall be construed as if such invalid, illegal, or unenforceable provision had not been contained herein, but only to the extent it is invalid, illegal, or unenforceable. cR4cR 14. Maximum Rate of Interest. It is not intended by this Note to charge interest at a rate in excess of the maximum rate of interest permitted to be charged to Maker under applicable law, but if, notwithstanding, interest in excess of the maximum rate shall be paid under this Note, the excess shall be retained by Payee and applied to reduce the principal sum outstanding, or returned to Maker. 15. Pronouns and Form. Whenever used, the singular number shall include the plural, the plural the singular, and the use of any gender shall be applicable to all genders, and words "Payee" and "Maker" shall be deemed to include their respective successors and assigns. IN WITNESS W ]MREOF, intending to be legally bound hereby, Maker has caused this Note to be executed and delivered on the date first above written. ATTEST: PRECISE GEOSYSTEMS, INC. BY: eter Ruel, President A Maker@ C R5% R D- ' #GE 5 2009 AUG 14 PM I : I I W4"WV DU TY 4a'1.50 PfS A`r y er,# 8881q I ( aa9aaa Ooiice Pa-w STEPHENSON EQUIPMENT, INC., Plaintiff : V. PRECISE GEOSYSTEMS, INC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. pq - 5( cO &VA TeJ"w CERTIFICATION OF ADDRESSES I hereby certify that the last known addresses for Plaintiff and Defendant are as follows: Plaintiff: Stephenson Equipment, Inc. 7201 Paxton Street Harrisburg, PA 17111 Defendant: Precise Geosystems, Inc. 3806 Market Street Camp Hill, PA 17011 Dated: August 13 , 2009 KEEFER WOOD ALLEN & RAHAL, LLP ByC-?- A. F Attorney I.D. #77426 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 (717) 255-8005 Attorneys for plaintiff R fir. OF'K "89 AUG 14 Pn 1= 12 aCOLNTY v STEPHENSON EQUIPMENT, INC., IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW V. PRECISE GEOSYSTEMS, INC. : NO. OQ - SGo(a0 ?t vit (?°? ?4 Defendant NOTICE UNDER RULE 2958.1 OF JUDGMENT AND EXECUTION THEREON NOTICE OF DEFENDANT'S RIGHTS To: Precise Geosystems, Inc. c/o Peter Ruel, President 3806 Market Street Camp Hill, PA 17011, Defendant A judgment in the amount of $16,592.34 has been entered against you and in favor of the plaintiff without any prior notice or hearing based on a confession of judgment contained in a written agreement or other paper allegedly signed by you. The sheriff may take your money or other property to pay the judgment at any time after thirty (30) days after the date on which this notice is served on you. You may have legal rights to defeat the judgment or to prevent your money or property from being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 or (800) 990-9108 FaD-OfFICE 2915 AUG 14 PM 1: 12 0outm