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HomeMy WebLinkAbout04-3940HANOVER ASSOCIATES, VS. IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, PENNSYLVANIA No. 04- 39`10 ?? Tim CALABRESE & SONS, INC., Defendant CIVIL ACTION - LAW CONFESSION OF JUDGMENT Pursuant to the authority contained in the Note attached as Exhibit A in the Complaint filed in the above captioned case, we appear for Calabrese & Sons, Inc. and confess judgment in favor of Hanover Associates against Calabrese & Sons, Inc. as follows: Principal $317,061.54 Interest $ 6,507.56 Total: $323,569.10* *Along with interest accruing at the per diem rate of $81.47, costs of suit, costs and reasonable attorney fees for costs of collection until paid in full. Respectfully submitted: M E WA E IKLLC Date: August 10, 2004 By J mes P. DeAnge Attorney I.D. No. 62377 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5357 (717) 237-5300 fax Attorneys for Hanover Associates HANOVER ASSOCIATES, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, PENNSYLVANIA VS. CALABRESE & SONS, INC., Defendant No. 04- 3J40 e" ?t, -- CIVIL ACTION - LAW COMPLAINT FOR CONFESSION OF JUDGMENT Hanover Associates, by and through its undersigned counsel, hereby files this Complaint for Confession of Judgment pursuant to Pa.R.C.P. No. 2951(b) and in support thereof avers the following: Hanover Associates ("Plaintiff') is a Pennsylvania limited partnership located at 311 East Elmwood Avenue, Mechanicsburg, Pennsylvania, 17055. 2. Calabrese & Sons, Inc. ("Defendant") is a Pennsylvania corporation with its principal place of business located at 406 Brandy Lane, Mechanicsburg, Pennsylvania 17055. 3. On June 7, 2004, Defendant entered into an amended and restated Line of Credit Promissory Note (the "Note") with Plaintiff and agreed to, among other things, pay Plaintiff the sum of "$300,000 or such sum as may be advanced and outstanding from time to time with interest." Attached hereto as Exhibit A and incorporated herein by reference is a true and correct copy of the Note executed by Defendant. 4. On August 10, 2004, Plaintiff accelerated all sums due and owing under the Note and Defendant has refused to pay all indebtedness due thereunder. 5. Defendant has defaulted under Note as follows: (a) failing to pay interest when due pursuant to ¶I l(a); failing to make principal and/or interest payments to Commerce Bank or M&T Bank pursuant to ¶ l t (c); generally failing to pay its debts as they become due pursuant to I 11(g)(i) and failing to pay all indebtedness due after acceleration pursuant to ¶ 11(b) (collectively the "Events of Default"). 6. The Note provides that Plaintiff, after the Events of Default have occurred, may confess judgment against Defendant for all sums due and owing under thereunder. The total sums due and owing under the Note as of August 10, 2004 are itemized as follows: Principal $317,061.54 Interest $ 6,507.56 Total: $323,569.10* *along with interest accruing at the per diem rate of $81.47, costs of suit, costs and reasonable attorney fees for costs of collection until paid in full. 8. All conditions precedent have been satisfied to allow Plaintiff to confess judgment against Defendant under the Note. 9. Judgment has not been confessed against Defendant in any other jurisdiction under the Note. 10. Plaintiff is the holder of the Note. 11. The Note was executed and delivered in connection with a commercial transaction and judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. WHEREFORE, Hanover Associates requests this Court to enter judgment by confession against Calabrese & Sons, Inc. in the amount of $323,569.10 along with interest accruing at the per diem rate of $81.47 following August 10, 2004, costs of suit, costs and reasonable attorney fees for costs of collection until paid in full. Respectfully submitted: M ES WAK LLC Date: August 10, 2004 By C J es P. DeAngelo ttorney I.D. No. 62377 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5357 (717) 237-5300 fax Attorneys for Hanover Associates VERIFICATION Subject to the penalties of 18 Pa. C.S.A. § 4904, relating to unsworn falsification to authorities, I, David G. Fisher, hereby verify that I am the general partner for the limited partnership known as Hanover Associates, authorized to file this verification on behalf of Hanover Associates and that the facts set forth in the foregoing Complaint for Confession of Judgment are true and correct to the best of my knowledge, information and belief. David G. Fisher LINE OF CREDIT PROMISSORY NOTE (Amended and Restated) $300,000.00 October 20, 2003 Amended and Restated June I , 2004 Calabrese & Sons, Inc. 406 Brandy Lane Mechanicsburg, PA 17055 ("Borrower") Hanover Associates 311 East Elmwood Avenue Mechanicsburg, PA 17055 ("Lender") Borrower hereby promises to pay to the order of Lender, in lawful money of the United States of America, at its address indicated above or wherever else Lender may specify, the sum of Three Hundred Thousand and 00/100 Dollars ($300,000.00) or such sum as may be advanced and outstanding from time to time with interest on the unpaid principal balance at the rate and on the terms provided in this Line of Credit Promissory Note (including all renewals, extensions or modifications hereof, this "Note") ON DEMAND by Lender upon which all principal, interest and other charges outstanding hereunder shall be paid in full. INTEREST RATE/REPAYMENT. a. Interest on the outstanding and unpaid principal balance shall be calculated for the actual number of days in the then current calendar year that principal is outstanding over a year of three hundred sixty (360) days, and shall accrue and be paid at the Prime Rate plus 2% (the "Interest Rate"). For the purposes hereof, the term "Prime Rate" shall mean the rate of interest per annum from time to time set forth as national prime in the Money Rates section of the Wall Street Journal. Such rate of interest shall change automatically and simultaneously upon the Wall Street Journal's designation of any change in such reference rate. b. Interest on the outstanding principal balance shall be payable monthly. C. Default Rate: Anything in this Note to the contrary notwithstanding, during the existence of any Event of Default hereunder, all Advances hereunder shall bear interest from the date due until paid in full at a rate per annum equal to the Prime Rate plus five percent (5.0%) (the "Default Rate"). 2. LINE OF CREDIT ADVANCES. Borrower may borrow, repay and reborrow, and Lender may advance and readvance under this Note respectively from time to time until the maturity hereof (each an "Advance" and together the "Advances") on an offering basis only and at the sole discretion of Lender. As of the date of each proposed Advance, Borrower shall be deemed to represent that each representation made in the Loan Documents (as defined in Section 7 below) is true as of such date. 3. PURPOSE. Advances pursuant to this Note shall be used solely for the Borrower's short-term working capital needs and equipment acquisitions (leases or sales by Lender to Borrower) to support Borrower's operations. 4. Intentionally Omitted 5. APPLICATION OF PAYMENTS. Monies received by Lender from any source for application toward payment of the Obligations (as defined in Section 7) shall be applied to accrued interest, principal and then to late charges, if any. If an Event of Default occurs, monies may be applied to the Obligations in any manner or order deemed appropriate by Lender. If any payment received by Lender under this Note or other Loan Document is rescinded, avoided or for any reason returned by Lender because of any adverse claim or threatened action, the returned payment shall remain payable as an obligation of all persons liable under this Note or other Loan Documents as though such payment had not been made. 6. COLLATERAL. To secure the full and complete payment and performance of the Obligations, Borrower has granted to the Lender a perfected security interest in all of its right, title and interest in all personal property owned by Borrower or hereafter acquired, as more fully described in the Security Agreement of even date herewith between Borrower and Lender (the "Security Agreement"), including, without limitation, all accounts, inventory, equipment, furniture, fixtures, contract rights, general intangibles, deposits, goods, letters of credit, securities, money, documents, instruments, investment property, chattel paper, permits, intellectual property, intercompany debt and licenses; provided that with respect to contract rights, licenses and permits which according to their terms are not assignable, such liens shall not be required to attach to such property. In connection with, and in addition to the foregoing, the Borrower shall execute and/or deliver such security documents, including the Security Agreement and further agreements, documents and instruments (including, without limitation, financing statements) as the Lender may reasonably require in order for it to obtain and maintain the perfected security interest to be granted herein. 7. LOAN DOCUMENTS AND OBLIGATIONS. The term "Loan Documents" used in this Note and other Loan Documents refers to all documents executed in connection with the loan evidenced by this Note and may include, without limitation, this Note, the -2- Security Agreement, security instruments, financing statements and mortgage instruments whenever any of the foregoing are executed. The term "Obligations" used in this Note refers to any and all indebtedness and other obligations under this Note and all other obligations under any other Loan Document(s). 8. LATE CHARGES. If any payments are not made within 15 days of when due, Borrower shall also pay to Lender a late charge of five cents ($.05) for each dollar so overdue. Acceptance by Lender of any late payment without an accompanying late charge shall not be deemed a waiver of Lender's rights to collect such late charge or to collect a late charge for any subsequent late payment received. 9. ATTORNEYS' FEES AND OTHER COLLECTION COSTS. Borrower shall pay all of Lender's reasonable expenses incurred to enforce or collect any of the Obligations, including, without limitation, reasonable arbitration, paralegals', attorneys', and experts' fees and expenses, whether incurred without the commencement of a suit, in any trial, arbitration, or administrative proceeding, or in any appellate or bankruptcy proceeding. 10. USURY. If at any time the effective interest rate under this Note would, but for this paragraph, exceed the maximum lawful rate, the effective interest rate under this Note shall be the maximum lawful rate, and any amount received by Lender in excess of such rate shall be applied to principal and then to fees and expenses, or, if no such amounts are owing, returned to Borrower. 11. EVENTS OF DEFAULT. Any one or more of the following events shall constitute an Event of Default: a. The Borrower fails to pay on the date on which the same is due and payable (i) any payment required under this Note; (ii) any fees, costs, expenses or other payments required by this Note to be paid by the Borrower, or (iii) any fees, costs, expenses or other payments required by any other Loan Documents to be paid by the Borrower; b. The Borrower fails to perform or observe any other term, covenant, agreement or condition in this Note, or any of the other Loan Documents; C. The Borrower shall fail to pay when due any principal or interest payable for money borrowed, or amounts owed by it under any operating lease, or it shall suffer to exist any other event of default under the terms and conditions of any indenture, mortgage, loan agreement, evidence of indebtedness or capital lease, including but not limited to, that owed by Borrower to either M&T Bank or Commerce Bank, its successors or assigns, all the foregoing involving in the aggregate a material liability of the Borrower, which shall not be remedied within the period of time (if any) within which such agreement permits such default to be remedied; -3- d. The validity, binding nature of, or enforceability of any material terra or provision of this Note or any of the Loan Documents is disputed by, on behalf of, or in the right or name of the Borrower or any material term or provision of this Note or any such Loan Document is found or declared to be invalid, avoidable or non-enforceable by any court of competent jurisdiction; e. Any financial statement of the Borrower or any warranty or representation made by the Borrower in this Note or any other Loan Document or in any certificate or other writing delivered under or pursuant to this Note or any other Loan Document, or in connection with any provision of this Note or related to the transactions contemplated hereby shall prove to have been false or incorrect or breached, in any material respect on the date as of which made; f. A final judgment or judgments is entered, all or part of which is uninsured, or an order or orders of any judicial authority or governmental entity is issued against the Borrower (such judgment(s) and order(s) hereinafter collectively referred to as "Judgment") (i) for payment of money, which Judgment, in the aggregate, constitutes a material liability of the Borrower; or (ii) for injunctive or declaratory relief which will have a material adverse effect on the Borrower, and such Judgment is not discharged or execution thereon or enforcement thereof stayed pending appeal, within thirty (30) days after entry or issuance thereof, or, in the event of such a stay, such Judgment is not discharged within sixty (60) days after such stay expires; g. i. The Borrower becomes insolvent and generally fails to pay, or admits in writing its inability to pay its debts as they become due or applies for, consents to, or acquiesces in, the appointment of a trustee, receiver or other custodian for the Borrower, or a substantial part of its property, or makes a general assignment for the benefit of creditors; ii. The Borrower commences any bankruptcy, reorganization, debt arrangement or other case or proceeding under any state or federal bankruptcy or insolvency law, or any dissolution or liquidation proceeding; iii. Any bankruptcy, reorganization, debt arrangement or other case or proceeding under any state or federal bankruptcy or insolvency law, or any dissolution or liquidation proceeding, is involuntarily commenced against or in respect of the Borrower and such proceeding remains undismissed for a period of sixty (60) days, or an order for relief is entered in any such proceeding; iv. A trustee, receiver or other custodian is appointed for the Borrower or a substantial part of its property. -4- h. There shall occur any Default or Event of Default, as defined in the Loan Documents, or under any other documents evidencing any other obligations of the Borrower to the Lender, including without limitation, under that agreement of sale and lease agreement (i) dated July 12, 2002 (Lodge & Shipley Lathe SIN 50100), or (ii) dated June 27, 2002 (Tinius Olsen Electromatic Torsion Testing Machine SIN 51126). 12. REMEDIES UPON DEFAULT. If an Event of Default has occurred and is continuing uncured, the Lender may, in its sole discretion, but shall not be obligated to (i) by notice to the Borrower declare the principal amount of all Obligations then outstanding, together with all interest accrued and unpaid thereon, to be immediately due and payable whereupon such amounts shall be immediately due and payable, and the Borrower shall be obligated to reimburse the Lender pursuant to this Note for all amounts payable by the Borrower hereunder, shall be forthwith due and payable, and the same shall thereupon become due and payable without demand, presentment, protest or further notice of any kind, all of which are hereby expressly waived, and/or (ii) exercise all of its rights and remedies under the Loan Documents, (iii) all of the obligations of the Borrower to the Lender, either under this Note or otherwise, will immediately become due and payable without further demand, notice or protest, all of which are hereby expressly waived; and/or (iv) the Lender's commitment to make further loans under this Note or any other agreement with the Borrower will immediately cease and terminate. 13. CONFESSION OF JUDGMENT. THE FOLLOWING PARAGRAPH SETS FORTH A WARRANT OF ATTORNEY FOR ANY ATTORNEY TO CONFESS JUDGMENT AGAINST BORROWER. IN GRANTING THIS WARRANT OF ATTORNEY TO CONFESS JUDGMENT AGAINST BORROWER, THE BORROWER, FOLLOWING CONSULTATION WITH (OR DECISION NOT TO CONSULT) SEPARATE COUNSEL FOR BORROWER AND WITH KNOWLEDGE OF THE LEGAL EFFECT HEREOF, HEREBY KNOWINGLY, INTENTIONALLY, VOLUNTARILY, INTELLIGENTLY AND UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS THE BORROWER HAS OR MAY HAVE TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE CONSTITUTIONS AND LAWS OF THE UNITED STATES OF AMERICA, COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE INCLUDING, WITHOUT LIMITATION, A HEARING PRIOR TO GARNISHMENT AND ATTACHMENT OF THE BORROWER'S BANK ACCOUNT AND OTHER ASSETS. BORROWER ACKNOWLEDGES AND UNDERSTANDS THAT BY ENTERING INTO THIS NOTE CONTAINING A CONFESSION OF JUDGMENT CLAUSE THAT BORROWER IS VOLUNTARILY, INTELLIGENTLY AND KNOWINGLY GIVING UP ANY AND ALL RIGHTS, INCLUDING CONSTITUTIONAL RIGHTS, THAT BORROWER HAS OR MAY HAVE TO NOTICE AND A HEARING BEFORE JUDGMENT CAN BE ENTERED AGAINST BORROWER AND BEFORE THE BORROWER'S ASSETS, INCLUDING, WITHOUT LIMITATION, ITS BANK ACCOUNTS, MAY BE GARNISHED, LEVIED, EXECUTED UPON AND/OR ATTACHMENT SHALL RENDER THE PROPERTY GARNISHED, LEVIED, EXECUTED UPON OR ATTACHED IMMEDIATELY UNAVAILABLE TO BORROWER. IT IS SPECIFICALLY ACKNOWLEDGED BY BORROWER THAT THE LENDER HAS RELIED ON THIS WARRANT OF ATTORNEY AND THE RIGHTS WAIVED BY BORROWER HEREIN IN -5- RECEIVING THIS NOTE AND AS AN INDUCEMENT TO GRANT FINANCIAL ACCOMMODATIONS TO THE BORROWER. If an Event of Default occurs under this Note or any other Loan Documents, Borrower hereby authorizes and empowers any attorney of any court of record or the prothonotary or clerk of any county in the Commonwealth of Pennsylvania, or in any jurisdiction where permitted by law or the clerk of any United States District Court, to appear for Borrower in any and all actions which may be brought hereunder and enter and confess judgment against the Borrower in favor of the Lender for such sums as are due or may become due hereunder or under any other Loan Documents, together with costs of suit and actual collection costs including, without limitation, reasonable attorneys' fees, with or without declaration, without prior notice, without stay of execution and with release of all procedural errors and the right to issue executions forthwith. To the extent permitted by law, Borrower waives the right of inquisition on any real estate levied on, voluntarily condemns the same, authorizes the prothonotary or clerk to enter upon the writ of execution this voluntary condemnation and agrees that such real estate may be sold on a writ of execution; and also waives any relief from any appraisement, stay or exemption law of any state now in force or hereafter enacted. Borrower further waives the right to any notice and hearing prior to the execution, levy, attachment or other type of enforcement of any judgment obtained hereunder, including, without limitation, the right to be notified and heard prior to the garnishment, levy, execution upon and attachment of Borrower's bank accounts and other property. If a copy of this Note verified by affidavit of the Lender shall have been filed in such action, it shall not be necessary to file the original thereof as a warrant of attorney, any practice or usage to the contrary notwithstanding. The authority herein granted to confess judgment shall not be exhausted by any single exercise thereof, but shall continue and may be exercised from time to time as often as the Lender shall find it necessary and desirable and at all times until full payment of all amounts due hereunder and under any other Loan Documents. The Lender may confess one or more judgments in the same or different jurisdictions for all or any part of the Obligations arising hereunder or under any other Loan Documents to which Borrower is a party, without regard to whether judgment has theretofore been confessed on more than one occasion for the same Obligations. In the event that any judgment confessed against the Borrower is stricken or opened upon application by or on behalf of Borrower or any obligor for any reason, the Lender is hereby authorized and empowered to again appear for and confess judgment against Borrower for any part or all of the Obligations owing under this Note and/or for any other liabilities, as herein provided. 14. WAIVERS AND AMENDMENT. No waivers, amendments or modifications of this Note and other Loan Documents shall be valid unless in writing and signed by the Lender. No waiver by Lender of any Event of Default shall operate as a waiver of any other Event of Default or the same Event of Default on a future occasion. Neither the failure nor any delay on the part of Lender in exercising any right, power or remedy under this Note and other Loan Documents shall operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or remedy. -6- Borrower and any person liable under this Note waives presentment, protest, notice of dishonor, demand for payment, notice of intention to accelerate maturity, notice of acceleration of maturity, notice of sale and all other notices of any kind. Further, each agrees that Lender may extend, modify or renew this Note or make a novation of the loan evidenced by this Note for any period and grant any releases, compromises or indulgences with respect to any collateral securing this Note, or with respect to any other Borrower or any other person liable under this Note or other Loan Documents, all without notice to or consent of each Borrower or each person who may be liable under this Note or other Loan Documents and without affecting the liability of Borrower or any person who may be liable under this Note or other Loan Documents. 15. MISCELLANEOUS PROVISIONS. Assignments. This Note and other Loan Documents shall inure to the benefit of and be binding upon the parties and their respective heirs, legal representatives, successors and assigns. Lender's interests in and rights under this Note and other Loan Documents are freely assignable, in whole or in part, by Lender. In addition, nothing in this Note or any of the Loan Documents shall prohibit Lender from pledging or assigning this Note or any of the Loan Documents or any interest therein to any Federal Reserve Bank. Borrower shall not assign its rights and interest hereunder without the prior written consent of Lender, and any attempt by Borrower to assign without Lender's prior written consent is null and void. Any assignment shall not release Borrower from the Obligations. Applicable Law; Conflict Between Documents. This Note and other Loan Documents shall be governed by and construed under the laws of the Commonwealth of Pennsylvania without regard to conflict of laws principles. Jurisdiction. Borrower irrevocably agrees that any suit, action or proceeding arising under or with respect to this Note will be instituted in the Court of Common Pleas of Cumberland County, Pennsylvania, or the United States District Court for the Middle District of Pennsylvania, and irrevocably and unconditionally submits to the jurisdiction of each sucl- Court for such purpose. Severability. If any provision of this Note or of the other Loan Documents shall be prohibited or invalid under applicable law, such provision shall be ineffective but only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Note or other such document. Notices. Any notices to Borrower shall be sufficiently given, if in writing and mailed or delivered to the Borrower's address shown above or such other address as provided hereunder, and to Lender, if in writing and mailed or delivered to Lender's address shown above or such other address as Lender may specify in writing from time to time. In the event that Borrower changes Borrower's address at any time prior to the date the Obligations are paid in full, Borrower agrees to promptly give written notice of said change of address by registered or certified mail, return receipt requested, all charges prepaid. -7- Plural; Captions. All references in the Loan Documents to Borrower, person, document or other nouns of reference mean both the singular and plural form, as the case may be, and the term "person" shall mean any individual, person or entity. The captions contained in the Loan Documents are inserted for convenience only and shall not affect the meaning or interpretation of the Loan Documents. Binding Contract. Borrower by execution of and Lender by acceptance of this Note agree that each parry is bound to all terms and provision of this Note. Fees and Taxes. On or before the date hereof, Borrower shall pay all costs, expenses and fees (including, without limitation, insurance, environmental assessment, searches, recording and reasonable attorneys' fees) associated with this transaction. Borrower shall promptly pay all documentary, recordation and/or similar taxes on this transaction whether assessed at closing or arising from time to time. 16. INSURANCE. Borrower shall cause to be provided and maintain continuously such insurance coverage and policies as are normally carried and maintained by companies engaged in the same or similar business to those operated by the Borrower. All liability policies of insurance shall name the Lender as an additional insured and all property insurance policies shall name the Lender as lender loss payee or mortgagee loss payee. The Lender shall have the exclusive right to receive the proceeds from such insurance and settle claims thereunder and while there shall be any obligation outstanding under this Note, the Lender shall have the exclusive right to direct the use of such proceeds. The original or a copy of each policy or a certificate that the same has been issued and is currently in effect shall be delivered to the Lender no later than the date of execution of this Note. 17. WAIVER OF JURY TRIAL. BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT TO A TRIAL BY JURY WITH REGARD TO A DISPUTE HEREUNDER OR UNDER ANY OF THE LOAN DOCUMENTS. BORROWER ACKNOWLEDGES AND AGREES THAT THIS SECTION IS A SPECIFIC AND MATERIAL ASPECT OF THIS NOTE AND THAT THE LENDER WOULD NOT EXTEND CREDIT TO THE BORROWER IF THE WAIVER SET FORTH IN THIS PARAGRAPH WAS NOT A PART OF THIS NOTE. 18. AMENDMENT AND RESTATEMENT. This Note amends and restates that Promissory Note dated October 20, 2003, drawn in the initial principal sum of $110,000, and all advances thereunder or otherwise from Lender to Borrower on or after October 20, 2003, and extending to this date. Such net advances outstanding on the date hereof are approximately $213,476.95. -8- IN WITNESS WHEREOF, Borrower, on the day and year first above written, has caused this Note to be executed under seal. Attest/Witness: CALABRESE & SONS, INC. By (!- !? N me: Joseph A. Calabrese tle: President Witness: For value received, the undersigned hereby personally guarantees as a surety payment of the above obligation in accordance with its terms and in such capacity agrees to the provisions of Section 14 of the above Note sep A. -9- ` (Seal) Calabrese HANOVER ASSOCIATES, Plaintiff VS. CALABRESE & SONS, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. OY- 394b C?tif 7 1_ CIVIL ACTION - LAW NOTICE OF ENTRY OF JUDGMENT PURSUANT TO PA.R-C.P. NO. 236 TO: Calabrese & Sons, Inc. 406 Brandy Lane Mechanicsburg, PA 17055 You are hereby notified that on August 10, 2004, judgment by confession was entered against you in the above-captioned case in favor of Hanover Associates as follows: Principal Interest Total: $317,061.54 $ 6,507.56 $323,569.10* *Along with interest accruing at the per diem rate of $81.47, costs of suit, costs and reasonable attorney fees for costs of collection until paid in full. DATE: 0._ 1_. t o . J_"y eA,, " k-2. P, PROTHONOTARY HANOVER ASSOCIATES, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CALABRESE & SONS, INC., Defendant No. CIVIL ACTION - LAW NOTICES IN CONNECTION WITH JUDGMENTS BY CONFESSION REQUIRED BY 42 Pa. C.S.A. § 2737.1 (Act 105 of 2000) 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 be sought 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 day 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. 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, PA 17013 (717) 249-3166 or 1-800-990-9108 r., o i i i Cl L. HANOVER ASSOCIATES, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, PENNSYLVANIA VS. No. oy-39116 CALABRESE & SONS, INC., Defendant CIVIL ACTION - LAW CERTIFICATE OF RESIDENCE We hereby certify that the last known address of the Defendant, Calabrese & Sons, Inc. is 406 Brandy Lane, Mechanicsburg, Pennsylvania, 17055. Respectfully submitted: M W CK LLC Date: August 10, 2004 By ames P.DeAngelr 0100 ttorney I.D. No. 62377 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5357 (717) 237-5300 fax Attorneys for Hanover Associates e ?v s? 3 ? ? V\ \ r ? ?' v G f` HANOVER ASSOCIATES, Plaintiff vs. CALABRESE & SONS, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2004-03940 PRAECIPE TO WITHDRAW APPEARANCE Please withdraw the appearance of James P. DeAngelo and McNees Wallace & Nurick LLC as counsel for Plaintiff in the above-captioned action. 7 7 & NURICK LLC I.D. No. 62377 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 PRAECIPE TO ENTER APPEARANCE Please enter the appearance of Robert E. Chemicoff and Cunningham & Chernicoff PC as counsel for Plaintiff in the above-captioned action. CUNNINGHAM & CHERNICQFF PC Robert E. Ch` I.D. No. 2320 North Second Street Harrisburg, PA 17110-1008 (717) 238-6570 Certificate of Service AND NOW, this ?*_ day of 3, 2006, I hereby verify that I have caused a true and correct copy of the foregoing Praecipe to be hand-delivered to: David A. Fitzsimons, Esquire 10 East High Street Carlisle, PA 17013 //" Monica D. ' ercher Reager & A aler, P.C. 2331 Market Street Camp Hill, PA 17011 (717) 763-1383 e n ? ;rte -? w JAwpwin\Cliems\RSR Misc\CalabreseJUDGMENT RELEASE.$323,569. I O.doc HANOVER ASSOCIATES, V. Plaintiff IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, :PENNSYLVANIA : NO. 2004-03940 CALABRESE & SONS, INC., Defendant : $323,569.10 : JUDGMENT IN FAVOR OF PLAINTIFF JUDGMENT RELEASE WHEREAS, Plaintiff entered a judgment against Defendant on August 10, 2004, to the docket number as referenced above; and WHEREAS, the Defendant is the owner of a certain parcel of land located in Mechanicsburg Boro and Hampden Township, Cumberland County, Pennsylvania more commonly known as 406 Brandy Lane; and WHEREAS, on April 2, 2006 Defendant filed a Preliminary/Final Subdivision Lot Consolidation Plan to Cumberland County Plan Book 92 Page 44 subdividing what was commonly known as 406 Brandy Lane into two separate lots shown on said Plan as New Lot 1 and New Lot 2; and WHEREAS, in consideration of the Defendant partially satisfying the above-referenced judgment, Plaintiff has agreed to release the New Lot 2, as more fully described on Exhibit A attached hereto, from the lien and operation of the above-referenced judgment. NOW THEREFORE, HANOVER ASSOCIATES, Plaintiff in the above Judgment, does appear and acknowledge that she has this day received from CALABRESE & SONS, INC., the Defendant in the above Judgment, PARTIAL payment and satisfaction of the same, with interest and costs, and desires that this Judgment Release be entered upon the records thereof only as it effects the New Lot 2. New Lot 2 is hereby released from the lien, operation and effect of the said judgment. This Judgment shall, until satisfied of record, remain in full force and effect against the New Lot 1. And further, it does hereby authorize and empower the Prothonotary of said Court to appear for it and in its name and stead to enter the Judgment Release upon the record of said Judgment, as fully and effectually, to all intents and purposes as it could, were it present to do so. And for so doing this shall be your sufficient warrant of authority. IN WITNESS WHEREOF, the Plaintiff has caused these presents to be signed this _J4-- day of June, 2006. ATTEST: HANOVER ASSOCIATES 31 By: Pa-viol f . ' 5 B? Its: CUNNINGHAM & CHERNICOFF, P.C. Sup. Ct. ID No.' P.O. Box 60457 Harrisburg, PA 17106-0457 (717) 238-6570 1:\wpwin\C1icnts\RSR Misc\Calabresc.JUDGMENT RELEASE.S323,569. I O.do COMMONWEALTH OF PENNSYLVANIA ) SS. COUNTY OF bl cel-I ) On this, the a'7-?' day of 2006, before me, a Notary Public, the undersigned officer, personally appeared i,n J 7. I--, rA W , known to me (or satisfactorily proven) to be the person whose name is subscribed as agent for HANOVER ASSOCIATES, and acknowledged that he/she executed the same as the act of his/her principal for the purpose therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. Public JULIEANry Public City of HCounty My Com22, 2007 MR EXHIBIT A ALL THAT CERTAIN piece or parcel of land, situate, lying and being in Mechanicsburg Borough, Cumberland County shown as New Lot 2 on the Calabrese & Sons, Inc. Preliminary/Final Subdivision/Lot Consolidation Plan Recorded April 3, 2006 in the Cumberland County Recorder of Deeds Office in Plan Book 92 Page 44 to wit: BEGINNING at a point on the southern side of Brandy Lane at a 5/8 inch rebar with cap thence South 27 degrees 04 minutes 00 seconds East a distance of 376.89 feet to a point thence North 37 degrees 14 minutes 52 seconds East a distance of 509.19 feet to a point thence North 37 degrees 05 minutes 01 seconds East a distance of 66.58 feet to a point thence South 42 degrees 05 minutes 07 seconds East a distance of 179.93 feet to a point thence South 24 degrees 27 minutes 41 seconds East a distance of 490.52 feet to a point thence South 65 degrees 27 minutes 00 seconds West a distance of 593.70 feet to a point thence North 27 degrees 04 minutes 00 seconds West a distance of 744.09 feet to a point thence North 40 degrees 20 minutes 30 seconds East a distance of 54.16 feet to a point and place of BEGINNING. CONTAINING 7.628 acres more or less. Certificate of Service AND NOW, this "J day of 2006, I hereby verify that I have caused a true and correct copy of the foregoing Praecipe to be placed in the U.S. Mail, first class, postage prepaid and addressed as follows: Robert E. Chernicoff, Esquire 2320 North Second Street Harrisburg, PA 17110-1008 and hand-delivered to: David A. Fitzsimons, Esquire 10 East High Street Carlisle, PA 17013 Monica D. Z Cher Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011 (717) 763-1383 ?V (? ,Zl`t{y1`R•. 0 t r' ?. GSA L? , ?? ., t'..l ? ('11 - ?' ? ' ?1 ?? ,, ? t ? C_? + R? --1 '?" -? lt1 }? r? V ?T T_ \\l b ?? 0 r W r w A '? ?? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION HANOVER ASSOCIATES, Plaintiff V. CALABRESE & SONS, INC., Defendant Confessed Judgment • .3'?i?-Its 1- File No. 04¦M% Amount Due $323,569.10 Interest 83,914.10 Atty's Comm 5,000.00 Costs 324.00 PRAECIPE FOR WRIT OF EXECUTION TO THE PROTHONOTARY: The undersigned hereby certifies that the below does not arise out of a retail installment sale, contract or account based on a confession, of judgment, but if it does, it is based on the appropriate original proceeding filed pursuant to Act 7 of 1966 as amended; and for real property pursuant to Act 6 of 1974 as amended. Issue a writ of execution in the above matter to the Sheriff of Cumberland County for debt, interest and costs, upon the following described property of the defendant: ALL THOSE TWO CERTAIN adjacent tracts or parcels of land, situate partly in the Borough of Mechanicsburg and partly in the Township of Hampden, bounded and described as follows: PARCEL NO. 1 - ALL THAT CERTAIN Lot of Ground situate in the Borough of Mechanicsburg, County of Cumberland and State of Pennsylvania, more particularly bounded and described as follows, to wit: BEGINNING at a point in the center line of Brandy Lane at corner of land now or formerly of R.D. Leahy; thence along the line of said land now or formerly of R.D. Leahy, the same being along the Western line of Lot Nos. 39, 40, 41, 42, 43 and 44 on the Plan of Curtis Fry, which said Plan is recorded in the Cumberland County Recorder's Office in Plan Book No. 3, at Page 92, South 47 degrees 15 minutes East, 275.2 feet, more or less, to a concrete monument in the line of other land of the grantors herein, now or about to be conveyed to the grantee herein, being Parcel No. 2 hereinafter described; thence along the line of the said other land of the grantors herein, and being Parcel No. 2 herein, South 42 degrees West, 55.03 feet to an iron pin at the corner of land now or formerly of Marlin L. Fry, North 47 degrees 15 minutes West, 275.72 feet, more or less, to a point in the center line of Brandy Lane, aforesaid; thence along the center line {00194877/1} A of Brandy Lane, North 42 degrees 45 minutes East, 55.00 feet, more or less, to a point and place of BEGINNING. PARCEL NO. 2 - ALL THAT CERTAIN tract of land situate partly in the Borough of Mechanicsburg and partly in the Township of Hampden, County of Cumberland, State of Pennsylvania, bounded and described as follows, to wit: BEGINNING at a point marked by a concrete monument at corner of Parcel No. 1 hereinabove described; thence extending along the Southeasterly line of Parcel No. 1 herein, South 42 degrees West, 55.03 feet to an iron pin at corner of land now or formerly of Marlin Fry, being also a corner of other land of M.P. Calabrese and Virginia L. Calabrese, his wife; thence along the line of said other land of M.P. Calabrese and Virginia L. Calabrese, his wife, South 47 degrees 15 minutes East, 22.43 feet, more or less, to a point thence continuing along the line of said other land of M.P. Calabrese and Virginia L. Calabrese, his wife, North 44 degrees 03 minutes 59 seconds East, 478.67 feet, more or less, to an iron pin; thence still along the line or said other land of M.P. Calabrese and Virginia L. Calabrese, his wife, South 29 degrees 41 minutes 08 seconds East, 886.65 feet, more or less, to an iron pin in the line of land of the United States of America, presently used as a Naval Supply Depot, North 69 degrees 01 minutes 38 seconds East, 300.00 feet, more or less, to a point marked by a concrete monument; thence continuing along the line of said Land of the United States of America, North 28 degrees 24 minutes 59 seconds West, 1,080.42 feet to a point marked by a pipe in the line of land now or formerly of Curtis Fry; thence along the line of said land now or formerly of Curtis Fry, South 42 degrees West, 338.16 feet, more or less, to a point marked by a concrete monument; thence along the line of land of the same, South 42 degrees 55 minutes 46 seconds West, 435.60 feet, more or less, to a point in the Easterly line of Parcel No. 1, hereinabove described; thence along the Easterly line of Parcel No. 1, South 47 degrees 15 minutes East, 7.23 feet, more or less, to a point marked by a concrete monument at corner of Parcel No. 1 herein, at the point and place of BEGINNING. BEING the same premises which M.P. Calabrese and Virginia L. Calabrese, by their deed dated September 3, 1984 and recorded in the Cumberland County Recorder's Office in Deed Book "X," Volume 30, Page 662, granted and conveyed unto Calabrese and Sons, Inc., a Pennsylvania corporation. Date: June 6, 2007 CGA LAW FIRM istia a ,Esquire Supr e Court I.D. #85370 135 North George Street York, PA 17401 717-848-4900 telephone 717-843-9039 facsimile cdabb@cgalaw.com Attorneys for Plaintiff {00194877)1} 7v ar -f- r-? ..4 w v WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) NO 04-3940 Civil CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due HANOVER ASSOCIATES, Plaintiff (s) From CALABRESE & SONS, INC., (1) You are directed to levy upon the property of the defendant (s)and to sell SEE LEGAL DESCRIPTION. (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of GARNISHEE(S) as follows: and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof; (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due$323,569.10 L.L. $.50 Interest $83,914.10 Atty's Comm % $5,000.00 Due Prothy $2.00 Atty Paid $51.00 Other Costs Plaintiff Paid Date: JUNE 6, 2007 Ldur& R. Lon , Prothonotary (Seal) Deputy REQUESTING PARTY: Name CHRISTIAN J. DABB, ESQUIRE Address: CGA LAW FIRM 135 NORTH GEORGE STREET YORK, PA 17401 Attorney for: PLAINTIFF Telephone: 717-848-4900 Supreme Court ID No. 85370 U IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION HANOVER ASSOCIATES, Plaintiff V. CALABRESE & SONS, INC., Defendant Calabrese & Sons, Inc. AFFIDAVIT PURSUANT TO Pa. R.C.P. 3129.1 CHRISTIAN J. DABB. ESQUIRE, counsel for plaintiff, in the above action, sets forth as of the date the praecipe for the writ of execution was filed the following information concerning the real property located at: Brandy Lane, Parcel I.D. #10-22-0521-015, partly in Mechanicsburg Borough and partly in Hampden Township, Cumberland County, Pennsylvania. 1. Name and address of Owner(s) or Reputed Owner(s): Name 2. 3 Confessed Judgment File No. 04-'$ Address 406 Brandy Lane Mechanicsburg, PA 17055 Name and address of Defendant(s) in the judgment: Name Calabrese & Sons, Inc. Address 406 Brandy Lane Mechanicsburg, PA 17055 Name and last known address of every judgment creditor whose judgment is a record lien on the real property to be sold: Name Danko Arlington, Inc. Hanover Associates Virginia Calabrese {00194877/1} Address 4800 Wabash Avenue Baltimore, MD 21215 311 East Elmwood Avenue Mechanicsburg, PA 17055 418 East Elmwood Avenue Mechanicsburg, PA 17055 it Affidavit under Pa.R.C.P. 3129.1 - PaLre 2 3. Name and last known address of every judgment creditor whose judgment is a record lien on the real property to be sold: Name Address Sorel Forge Co. 2 Blair Drive Brampton L6T 2H5 Ontario, Canada Manufacturers and Traders 1 M and T Plaza Trust Company Buffalo, NY 14203 Turn Associates, Inc. 327 West Allen Street Mechanicsburg, PA 17055 4. Name and address of the last recorded holder of every mortgage of record: Name Address Virginia Calabrese 418 East Elmwood Avenue Mechanicsburg, PA 17055 5. Name and address of every other person who has any record lien on the property: Name Address None. 6. Name and address of every other person who has any record interest in the property and whose interest may be affected by the sale: Name Address Paladin Consulting, Inc. 215 Dogwood Drive Hershey, PA 17033 7. Name and address of every other person of whom the plaintiff has knowledge who has any interest in the property which may be affected by the sale: Name Address None. {00194877/1} Affidavit under Pa. R.C.P. 3129.1 - Page 3 I verify that the statements made in this affidavit are true and correct to the best of my personal knowledge or information and belief. I understand that false statements herein are made subject to the penalties of 18 PA C.S. §4904 relating to unsworn falsification to authorities. D ate: June 6, 2007 gCounse for Plaintiff {00194877/1} t? ? ?r? ? -`s C:' .. x,, `> C? _ { =- ?;?i't x" ? . ?? if r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION HANOVER ASSOCIATES, Plaintiff V. CALABRESE & SONS, INC., Defendant Confessed Judgment 3GLl0 File No. 041M NOTICE TO LIEN HOLDERS PURSUANT TO PA RCP 3129.2 NOTICE IS HEREBY GIVEN to the following parties who hold one or more mortgage, judgment or tax liens against the real estate of. CALABRESE & SONS, INC. Danko Arlington, Inc. 4800 Wabash Avenue Baltimore, MD 21215 Hanover Associates 311 East Elmwood Avenue Mechanicsburg, PA 17055 Virginia Calabrese 418 East Elmwood Avenue Mechanicsburg, PA 17055 Sorel Forge Co. 2 Blair Drive Brampton L6T 2145 Ontario, Canada Manufacturers and Traders Trust Company 1 M and T Plaza Buffalo, NY 14203 Turri Associates, Inc. 327 West Allen Street Mechanicsburg, PA 17055 Paladin Consulting, Inc. 215 Dogwood Drive Hershey, PA 17033 {00194877/1} You are hereby notified that on September 5, 2007 at 10 o'clock a.m., prevailing time, by virtue of a Writ of Execution issued out of the Court of Common Pleas of Cumberland County, Pennsylvania, on the judgment of Hanover Associates v. Calabrese & Sons, Inc., No. 04-3940, the Sheriff of Cumberland County, Pennsylvania, will expose at Public Sale in the Commissioner's Hearing Room in the Court House, One Courthouse Square, Carlisle, Cumberland County, Pennsylvania 17013, real estate of Calabrese & Sons, Inc., known as Brandy Lane, Parcel I.D. #10-22-0521-015, partly in Mechanicsburg Borough and partly in Hampden Township, Cumberland County, Pennsylvania, recorded in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, in Record Book 30-X, page 662. A description of said real estate is attached hereto. You are further notified that a Schedule of Proposed Distribution will be filed by the Sheriff of Cumberland County on October 5, 2007, and distribution will be made in accordance with the schedule unless exceptions are filed thereto within ten (10) days thereafter. You are further notified that the lien you hold against said real estate will be divested by the sale and that you have an opportunity to protect your interest, if any, by being notified of said Sheriff Sale. Dated: June 6, 2007 CGA LAW FIRM U. Rabb, Esquire for Plaintiff {00194877/1} 135 North George Street York, PA 17401 (717) 848-4900 ALL THOSE TWO CERTAIN adjacent tracts or parcels of land, situate partly in the Borough of Mechanicsburg and partly in the Township of Hampden, bounded and described as follows: PARCEL NO. 1 - ALL THAT CERTAIN Lot of Ground situate in the Borough of Mechanicsburg, County of Cumberland and State of Pennsylvania, more particularly bounded and described as follows, to wit: BEGINNING at a point in the center line of Brandy Lane at corner of land now or formerly of R.D. Leahy; thence along the line of said land now or formerly of R.D. Leahy, the same being along the Western line of Lot Nos. 39, 40, 41, 42, 43 and 44 on the Plan of Curtis Fry, which said Plan is recorded in the Cumberland County Recorder's Office in Plan Book No. 3, at Page 92, South 47 degrees 15 minutes East, 275.2 feet, more or less, to a concrete monument in the line of other land of the grantors herein, now or about to be conveyed to the grantee herein, being Parcel No. 2 hereinafter described; thence along the line of the said other land of the grantors herein, and being Parcel No. 2 herein, South 42 degrees West, 55.03 feet to an iron pin at the corner of land now or formerly of Marlin L. Fry, North 47 degrees 15 minutes West, 275.72 feet, more or less, to a point in the center line of Brandy Lane, aforesaid; thence along the center line of Brandy Lane, North 42 degrees 45 minutes East, 55.00 feet, more or less, to a point and place of BEGINNING. PARCEL NO. 2 - ALL THAT CERTAIN tract of land situate partly in the Borough of Mechanicsburg and partly in the Township of Hampden, County of Cumberland, State of Pennsylvania, bounded and described as follows, to wit: BEGINNING at a point marked by a concrete monument at corner of Parcel No. 1 hereinabove described; thence extending along the Southeasterly line of Parcel No. 1 herein, South 42 degrees West, 55.03 feet to an iron pin at corner of land now or formerly of Marlin Fry, being also a corner of other land of M.P. Calabrese and Virginia L. Calabrese, his wife; thence along the line of said other land of M.P. Calabrese and Virginia L. Calabrese, his wife, South 47 degrees 15 minutes East, 22.43 feet, more or less, to a point thence continuing along the line of said other land of M.P. Calabrese and Virginia L. Calabrese, his wife, North 44 degrees 03 minutes 59 seconds East, 478.67 feet, more or less, to an iron pin; thence still along the line or said other land of M.P. Calabrese and Virginia L. Calabrese, his wife, South 29 degrees 41 minutes 08 seconds East, 886.65 feet, more or less, to an iron pin in the line of land of the United States of America, presently used as a Naval Supply Depot, North 69 degrees 01 minutes 38 seconds East, 300.00 feet, more or less, to a point marked by a concrete monument; thence continuing along the line of said Land of the United States of America, North 28 degrees 24 minutes 59 seconds West, 1,080.42 feet to a point marked by a pipe in the line of land now or formerly of Curtis Fry; thence along the line of said land now or formerly of Curtis Fry, South 42 degrees West, 338.16 feet, more or less, to a point marked by a concrete monument; thence along the line of land of the same, South 42 degrees 55 minutes 46 seconds West, 435.60 feet, more or less, to a point in the Easterly line of Parcel No. 1, hereinabove described; thence along the Easterly line of Parcel No. 1, South 47 degrees 15 minutes East, 7.23 feet, more or less, to a point marked by a concrete monument at corner of Parcel No. 1 herein, at the point and place of BEGINNING. {00194997/1} BEING the same premises which M.P. Calabrese and Virginia L. Calabrese, by their deed dated September 3, 1984 and recorded in the Cumberland County Recorder's Office in Deed Book "X," Volume 30, Page 662, granted and conveyed unto Calabrese and Sons, Inc., a Pennsylvania corporation. (00194997/1} fl 7 - M • yz _ CD c.r; IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION HANOVER ASSOCIATES, Plaintiff V. CALABRESE & SONS, INC., Defendant Confessed Judgment 3c) uQ File No. 04-31"0 NOTICE UNDER RULE 2958.2 OF JUDGMENT AND EXECUTION THEREON NOTICE OF DEFENDANT'S RIGHTS TO: Calabrese & Sons, Inc. 406 Brandy Lane Mechanicsburg, PA 17055 A judgment in the amount of $323,569.10 plus interest, costs and reasonable attorneys' fees 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 property to pay the judgment at anytime after thirty (30) days after the date this notice is served on you. You may have legal rights to defeat the judgment or to prevent your money or property from being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE, IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 717-249-3166 :00195037:1: ? ? ? .?, `?? c_ m -c ? ? ,, . ?"' ?.?? _ = "'1 ' ? '' i' L. : y ?.. J ?' c`. .: .c a f IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION HANOVER ASSOCIATES, Plaintiff V. CALABRESE & SONS, INC., Defendant Confessed Judgment A940 File No. 04-94" NOTICE OF SHERIFF'S SALE OF REAL PROPERTY PURSUANT TO PENNSYLVANIA RULE OF CIVIL PROCEDURE 3129.2 TAKE NOTICE: That the Sheriffs Sale of Real Property (real estate) will be held on September 5, 2007, 2007, in the COMMISSIONER'S HEARING ROOM, CUMBERLAND COUNTY COURT HOUSE, ONE COURTHOUSE SQUARE, CARLISLE, PENNSYLVANIA 17013 at 10:00 a.m., prevailing local time. THE PROPERTY TO BE SOLD is delineated in detail in a legal description mainly consisting of a statement of the measured boundaries of the property, together with a brief mention of the buildings and any other major improvements erected on the land. (SEE DESCRIPTION ATTACHED) THE LOCATION of your property to be sold is: Brandy Lane Parcel I D 910-22-0521-015 partly in Mechanicsburg Borough and partly in Hampden Township, Cumberland County Pennsylvania. THE JUDGMENT under or pursuant to which your property is being sold is docketed to: No. 04-3940 Civil Term The name of the owner or reputed owner of this property is: Calabrese & Sons, Inc. A SCHEDULE OF DISTRIBUTION, being a list of the persons and or governmental or corporate entities or agencies being entitled to receive part of the proceeds of the sale received and to be disbursed by the Sheriff (for example, to banks that hold mortgages and municipalities that are owed taxes), will be filed by the Sheriff within thirty (30) days after the sale and distribution of the proceeds of sale in accordance with this schedule will, in fact, be made unless someone objects by filing exceptions to it within ten (10) days of the date it is filed. Information about the schedule of distribution may be obtained from the Sheriff of the Court of Common {00194877/1} I Pleas of Cumberland County, Pennsylvania, Cumberland County Court House, One Courthouse Square, Carlisle, Pennsylvania 17055, (717) 240-6390. THIS PAPER IS A NOTICE OF THE TIME AND PLACE OF THE SALE OF YOUR PROPERTY. It has been issued because there is a judgment against you. It may cause your property to be held, to be sold or taken to pay the judgment. You may have legal rights to prevent your property from being taken. A lawyer can advise you more specifically of these rights. If you wish to exercise your rights, you must act promptly. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET FREE LEGAL ADVICE: Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 717-249-3166 THE LEGAL RIGHTS YOU MAY HAVE ARE: 1. You may file a petition with the Court of Common Pleas of Cumberland County to open the judgment if you have a meritorious defense against the person or company that has entered judgment against you. You may also file a petition with the same Court if you are aware of a legal defect in the obligation or procedure used against you. 2. After the Sheriffs Sale you may file a petition with the Court of Common Pleas of Cumberland County to set aside the sale for a grossly inadequate price or for other proper cause. This petition must be filed before the Sheriff s Deed is delivered. 3. A petition or petitioners raising the legal issues or rights mentioned in the preceding paragraphs must be presented to the Court of Common Pleas of Cumberland County at one of the Court's regularly scheduled business court sessions. The petition must be served on the attorney for the creditor at least two (2) business days before presentation to the Court and a proposed order or rule must be attached to the petition. If a specific return date is desired, such date must be obtained from the Court Administrator's Office, Cumberland County Court House, One Courthouse Square, Carlisle, Pennsylvania 17013, before presentation of the petition to the Court. {00194877/1} r v ALL THOSE TWO CERTAIN adjacent tracts or parcels of land, situate partly in the Borough of Mechanicsburg and partly in the Township of Hampden, bounded and described as follows: PARCEL NO. I - ALL THAT CERTAIN Lot of Ground situate in the Borough of Mechanicsburg, County of Cumberland and State of Pennsylvania, more particularly bounded and described as follows, to wit: BEGINNING at a point in the center line of Brandy Lane at corner of land now or formerly of R.D. Leahy; thence along the line of said land now or formerly of R.D. Leahy, the same being along the Western line of Lot Nos. 39, 40, 41, 42, 43 and 44 on the Plan of Curtis Fry, which said Plan is recorded in the Cumberland County Recorder's Office in Plan Book No. 3, at Page 92, South 47 degrees 15 minutes East, 275.2 feet, more or less, to a concrete monument in the line of other land of the grantors herein, now or about to be conveyed to the grantee herein, being Parcel No. 2 hereinafter described; thence along the line of the said other land of the grantors herein, and being Parcel No. 2 herein, South 42 degrees West, 55.03 feet to an iron pin at the corner of land now or formerly of Marlin L. Fry, North 47 degrees 15 minutes West, 275.72 feet, more or less, to a point in the center line of Brandy Lane, aforesaid; thence along the center line of Brandy Lane, North 42 degrees 45 minutes East, 55.00 feet, more or less, to a point and place of BEGINNING. PARCEL NO. 2 - ALL THAT CERTAIN tract of land situate partly in the Borough of Mechanicsburg and partly in the Township of Hampden, County of Cumberland, State of Pennsylvania, bounded and described as follows, to wit: BEGINNING at a point marked by a concrete monument at corner of Parcel No. I hereinabove described; thence extending along the Southeasterly line of Parcel No. 1 herein, South 42 degrees West, 55.03 feet to an iron pin at corner of land now or formerly of Marlin Fry, being also a corner of other land of M.P. Calabrese and Virginia L. Calabrese, his wife; thence along the line of said other land of M.P. Calabrese and Virginia L. Calabrese, his wife, South 47 degrees 15 minutes East, 22.43 feet, more or less, to a point thence continuing along the line of said other land of M.P. Calabrese and Virginia L. Calabrese, his wife, North 44 degrees 03 minutes 59 seconds East, 478.67 feet, more or less, to an iron pin; thence still along the line or said other land of M.P. Calabrese and Virginia L. Calabrese, his wife, South 29 degrees 41 minutes 08 seconds East, 886.65 feet, more or less, to an iron pin in the line of land of the United States of America, presently used as a Naval Supply Depot, North 69 degrees 01 minutes 38 seconds East, 300.00 feet, more or less, to a point marked by a concrete monument; thence continuing along the line of said Land of the United States of America, North 28 degrees 24 minutes 59 seconds West, 1,080.42 feet to a point marked by a pipe in the line of land now or formerly of Curtis Fry; thence along the line of said land now or formerly of Curtis Fry, South 42 degrees West, 338.16 feet, more or less, to a point marked by a concrete monument; thence along the line of land of the same, South 42 degrees 55 minutes 46 seconds West, 435.60 feet, more or less, to a point in the Easterly line of Parcel No. 1, hereinabove described; thence along the Easterly line of Parcel No. 1, South 47 degrees 15 minutes East, 7.23 feet, more or less, to a point marked by a concrete monument at corner of Parcel No. 1 herein, at the point and place of BEGINNING. X00194997/1) BEING the same premises which M.P. Calabrese and Virginia L. Calabrese, by their deed dated September 3, 1984 and recorded in the Cumberland County Recorder's Office in Deed Book "X," Volume 30, Page 662, granted and conveyed unto Calabrese and Sons, Inc., a Pennsylvania corporation. (00194997/1} r? ? ? -rt ? ?._, ? --c! ? ? ?4 ? -r,? ;j;, ? <, ?_, `--?-? ? ?',.A [? .1- ?' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION HANOVER ASSOCIATES, Confessed Judgment Plaintiff V. File No. 04-3940 CALABRESE & SONS, INC., Defendant AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA ) ( SS. COUNTY OF YORK ) Before me, the undersigned officer, personally appeared KATHLEEN H. MOYER, Paralegal for CHRISTIAN J. DABB, ESQUIRE, CGA LAW FIRM, who, being duly sworn according to law, deposes and says that Notice to the parties who hold one or more mortgage, judgment or tax liens against the real estate of Calabrese & Associates, Inc., was given by first- class mail, postage prepaid thereon, as evidenced by the Certificates of Mailing, attached hereto and made a part hereof as Exhibit "A." A copy of the Notice to Lien Holders Pursuant to Pa.R.C.P. 3129 is attached hereto and made a part hereof as Exhibit "B." CGA LAW FIRM A PM I 1(111h/V IfA Kat Teen H. Moyer, Par e 1 for Christian J. Dabb, Esquire Attorneys for Plaintiff Sworn and subscribed to before me this 6*4 day of -T (y , 2007 Notary ffublic My commission expires: 29MON"Am OF Y Notafia e" ewbm J. Ras, Notary Pubft CRY of York, York My Cwmks W Eom Feb. 0, 2004 h6ft r. Penns0m k Afted0m V 406ft {00194877/1} 1 i ?4-" N1 y,?U111-?y, - UNITED S?aV, 10 W i 1 ;y caps s ?NU1 1 I_?? = 1 11 d { s 1 m ?s s ? ? may ? 1 Amy ! 7 m'y 1 V + a iy 111 ' N c 'O'NI_ _T 1 I Y m a M Y ?'1 !s .r '? E16d-OO ?Oy ?' - v-'? C w SL' ' _ ? ? Y yl ?to o ? i s ?s 1 G U G r? `y y O O E ` Sao , N 1. 1 'd U U 1 m 1 m d G is 1 1 ? m a ? G s O i N 4 y d 4 U y N ? O I A s U' b,1 ? 1 WO 4 N d ?? Q. 1 N 71 ?a aw s p05?pG6 1?a4?o7 0 Q 1 I 1 1 114c 1 y LV s 1 1 s l 1 1 r,.c' a 1 s4 1 Avu c 1 m ? ? p m Or D 6g.? +? U m ? U A T 1 iy y 0 ? o-.0 N lr m m '? U 1 1 1 __??aLmE$_? y, y =_- -? l1 Dm v SAD m 1l ?? ?? E o-p ?.% m w o i U m - N ? N U t6 ? Q m .- G t m A I.- y _?._ - 'r. o ? d pN m 6 2 o o n 1?-`? i y 1 1 4 m o o N? O L° m mUN 1 y y _ S ?Y N'A p'O O 1 - 5 m a ?' -,.? 1 A ?G U N 6q mO ?? '? ='', _? hammm IRoG- t i I ?i`1 1 G N lAl rG .`? m l y 1, ?y tip y N d N 1 Y ? - \ 1 U ,c '? 7 S_ o G ?ir1? ? 49 jO?LO? ` s I - ?'? \O d Gm 1 ? 1 p ? U ?q N - m o a N°° m - ' ? s 11 ?Q? G o"r tir '1 ?1 ?_ ? 1a m? ? °c m m - C m G 1 1 1 1 ?0 0 D 1 1 ???r 11 1 G G o? ai cJ) G i _ 1--` 1 1 0 " 'm rc c ?? 1 1 1 ? .?mo?gN?< - ,1 4 S m ¢ w o5 U V m s -16 , 1 l s lY __ 1 1 ; d 'oo V 'O G w ?y ,1 '1 1 0. 11 ` 1 ? T y ??f,LyJ/.?Ty?? 1 1 Iy 1 s ? m ? 1 1 4 ',z s m '?".1 11 ss ? s s 's m ?ry 1 1 ` 1 4, ? y }' nL 1 y 's Iy ?1 1 - 1 0 1 ?s 1 ?? ? ? •? } 1 i1 1 1 1 y? O 1 O@ S1 1y ? 1` , ?? 1 ys y19 td s 1 1 1 i ?? 1 1 1 1°? ?= 1 1 1 1 1 1 1 1 1 d r- s s ? C5? ? s 1 1 'n 1 ?1 ? s 1 cr) co Lo 1, co IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION HANOVER ASSOCIATES, Confessed Judgment Plaintiff V. File No. 04-3940 CALABRESE & SONS, INC., Defendant NOTICE TO LIEN HOLDERS PURSUANT TO PA RCP 3129.2 NOTICE IS HEREBY GIVEN to the following parties who hold one or more mortgae, judgment or tax liens against the real estate of- , CALABRESE & SONS, INC. Danko Arlington, Inc. 4800 Wabash Avenue Baltimore, MD 21215 Hanover Associates 311 East Elmwood Avenue Mechanicsburg, PA 17055 Virginia Calabrese 418 East Elmwood Avenue Mechanicsburg, PA 17055 Sorel Forge Co. 2 Blair Drive Brampton L6T 21-15 Ontario, Canada Manufacturers and Traders Trust Company 1 M and T Plaza Buffalo, NY 14203 Turn Associates, Inc. 327 West Allen Street Mechanicsburg, PA 17055 Paladin Consulting, Inc. 215 Dogwood Drive Hershey, PA 17033 EXHIBIT ;00194877/11 You are hereby notified that on September 5, 2007 at 10 o'clock a.m., prevailing time, by virtue of a Writ of Execution issued out of the Court of Common Pleas of Cumberland County, Pennsylvania, on the judgment of Hanover Associates v. Calabrese & Sons, Inc., No. 04-3940, the Sheriff of Cumberland County, Pennsylvania, will expose at Public Sale in the Commissioner's Hearing Room in the Court House, One Courthouse Square, Carlisle, Cumberland County, Pennsylvania 17013, real estate of Calabrese & Sons, Inc., known as Brandy Lane, Parcel I.D. #10-22-0521-015, partly in Mechanicsburg Borough and partly in Hampden Township, Cumberland County, Pennsylvania, recorded in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, in Record Book 30-X, page 662. A description of said real estate is attached hereto. You are further notified that a Schedule of Proposed Distribution will be filed by the Sheriff of Cumberland County on October 5, 2007, and distribution will be made in accordance with the schedule unless exceptions are filed thereto within ten (10) days thereafter. You are further notified that the lien you hold against said real estate will be divested by the sale and that you have an opportunity to protect your interest, if any, by being notified of said Sheriff Sale. Dated: July 5, 2007 CGA LAW FIRM Christian J.abb, Esquire Attorney r Plaintiff 135 North George Street York, PA 17401 (717) 848-4900 (00154877/1) I ALL THOSE TWO CERTAIN adjacent tracts or parcels of land, situate partly in the Borough of Mechanicsburg and partly in the Township of Hampden, bounded and described as follows: PARCEL NO. 1 - ALL THAT CERTAIN Lot of Ground situate in the Borough of Mechanicsburg, County of Cumberland and State of Pennsylvania, more particularly bounded and described as follows, to wit: BEGINNING at a point in the center line of Brandy Lane at corner of land now or formerly of R.D. Leahy; thence along the line of said land now or formerly of R.D. Leahy, the same being along the Western line of Lot Nos. 39, 40, 41, 42, 43 and 44 on the Plan of Curtis Fry, which said Plan is recorded in the Cumberland County Recorder's Office in Plan Book No. 3, at Page 92, South 47 degrees 15 minutes East, 275.2 feet, more or less, to a concrete monument in the line of other land of the grantors herein, now or about to be conveyed to the grantee herein, being Parcel No. 2 hereinafter described; thence along the line of the said other land of the grantors herein, and being Parcel No. 2 herein, South 42 degrees West, 55.03 feet to an iron pin at the corner of land now or formerly of Marlin L. Fry, North 47 degrees 15 minutes West, 275.72 feet, more or less, to a point in the center line of Brandy Lane, aforesaid; thence along the center line of Brandy Lane, North 42 degrees 45 minutes East, 55.00 feet, more or less, to a point and place of BEGINNING. PARCEL NO. 2 - ALL THAT CERTAIN tract of land situate partly in the Borough of Mechanicsburg and partly in the Township of Hampden, County of Cumberland, State of Pennsylvania, bounded and described as follows, to wit: BEGINNING at a point marked by a concrete monument at corner of Parcel No. 1 hereinabove described; thence extending along the Southeasterly line of Parcel No. 1 herein, South 42 degrees West, 55.03 feet to an iron pin at corner of land now or formerly of Marlin Fry, being also a corner of other land of M.P. Calabrese and Virginia L. Calabrese, his wife; thence along the line of said other land of M.P. Calabrese and Virginia L. Calabrese, his wife, South 47 degrees 15 minutes East, 22.43 feet, more or less, to a point thence continuing along the line of said other land of M.P. Calabrese and Virginia L. Calabrese, his wife, North 44 degrees 03 minutes 59 seconds East, 478.67 feet, more or less, to an iron pin; thence still along the line or said other land of M.P. Calabrese and Virginia L. Calabrese, his wife, South 29 degrees 41 minutes 08 seconds East, 886.65 feet, more or less, to an iron pin in the line of land of the United States of America, presently used as a Naval Supply Depot, North 69 degrees 01 minutes 38 seconds East, 300.00 feet, more or less, to a point marked by a concrete monument; thence continuing along the line of said Land of the United States of America, North 28 degrees 24 minutes 59 seconds West, 1,080.42 feet to a point marked by a pipe in the line of land now or formerly of Curtis Fry; thence along the line of said land now or formerly of Curtis Fry, South 42 degrees West, 338.16 feet, more or less, to a point marked by a concrete monument; thence along the line of land of the same, South 42 degrees 55 minutes 46 seconds West, 435.60 feet, more or less, to a point in the Easterly line of Parcel No. 1, hereinabove described; thence along the Easterly line of Parcel No. 1, South 47 degrees 15 minutes East, 7.23 feet, more or less, to a point marked by a concrete monument at corner of Parcel No. 1 herein, at the point and place of BEGINNING. 100194997/1 .t BEING the same premises which M.P. Calabrese and Virginia L. Calabrese, by their deed dated September 3, 1984 and recorded in the Cumberland County Recorder's Office in Deed Book "X," Volume 30, Page 662, granted and conveyed unto Calabrese and Sons, Inc., a Pennsylvania corporation. 00194997'1; C. 1 F: \FII.ES\ l 1093\1 1093. 10.mot l \tde Created: 9/20/04 0:06PM Revised: 8/23/07 3:23PM 11093.11 David A. Fitzsimons, Esquire I.D. No. 41722 Christopher E. Rice, Esquire I.D. No. 90916 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 Defendant HANOVER ASSOCIATES, IN THE COURT OF COMMON PLEAS OF Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2004-3940 CALABRESE & SONS, INC., CIVIL ACTION - LAW Defendant DEFENDANT'S MOTION FOR PRELIMINARY OR SPECIAL INJUNCTION AND NOW, comes the Defendant, Calabrese & Sons, Inc., by and through their attorneys, MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, and hereby moves this Court for a preliminary injunction under Pa.R.C.P. 1531 enjoining and restraining Plaintiff pending final hearing and determination of this action from conducting a Sheriff's Sale of property located along Brandy Lane ("New Lot I"), Mechanicsburg, Cumberland County, Pennsylvania on September 5, 2007. A copy of the description of New Lot 1 is contained in Plaintiff's Writ of Execution which is attached hereto and incorporated as Exhibit "A." In support of its Motion, Defendant avers as follows: 1. Pursuant to a Promissory Note dated June 7, 2004, Defendant owed Plaintiff $300,000.00. A copy of the Promissory Note is attached hereto and incorporated as Exhibit "B." 2. On August 10, 2004, judgment was confessed against Defendant in the Court of Common Pleas of Cumberland County at docket number 2004 CV 3940 by Plaintiff for breach of the Promissory Note. 4 3. In June 2006, Defendant's property was subdivided into two lots, one in Mechanicsburg and one in Hampden Township. Defendant's machine shop is located on the lot located in Mechanicsburg. This lot was sold and leased back in June 2006. The remaining tract located in Hampden Township ("New Lot I") is an undeveloped, contiguous piece ofpropertywhich was under contract and is now scheduled for sale on August 30, 2007. 4. On or about June 15, 2006, Plaintiff and Defendant entered into an agreement for the satisfaction of Plaintiff's mortgage and judgments. A copy of this agreement is attached hereto and incorporated as Exhibit "C." 5. Pursuant to the agreement, Plaintiff agreed that it would take no further action against Defendant, and Defendant agreed that it would sell New Lot 1 to repay the remaining balance owed to Plaintiff. 6. Central to the agreement, as referenced above, between Plaintiff and Defendant was Plaintiff's agreement to provide documentation providing the basis for accurately calculating any remaining balance on the Promissory Note. 7. Furthermore, pursuant to the agreement referenced above, Plaintiff became the first lienholder on New Lot 1, and Virginia Calabrese agreed to become a subordinate lienholder. 8. Virginia Calabrese only agreed to take a subordinate position to Plaintiff based on Plaintiff's agreement to provide documentation of its claim and the satisfaction of Plaintiff's claim through the sale of New Lot 1. 9. On or about June 27, 2006, Defendant paid $250,000.00 to Plaintiff in partial satisfaction of the judgment and as consideration for the agreement referenced above. 10. The sale of New Lot 1 has been repeatedly delayed in significant part due to Plaintiff's failure to provide an accurate payoff amount for the judgment and refusal to provide documentation of its payoff amount. 11. To date and despite repeated requests for documentation of the remaining balance, Plaintiff has persistently refused and failed to provide any documentation to support its unsubstantiated total claim. 12. Defendant entered into an Agreement of Sale for New Lot 1. Settlement is scheduled to take place on August 30, 2007. Correspondence from counsel for buyer to Plaintiff's counsel confirming the date of settlement is attached hereto and incorporated as Exhibit "D." 13. Again, Defendant has continued to request documentation of the amount Plaintiff claims it is owed. Once again, however, Plaintiff has refused to cooperate, and Defendant is concerned that Plaintiff is holding the Sheriff's Sale over Defendant in an attempt to obtain a greater, unsubstantiated payoff amount. 14. Despite the fact that the pending sale is being delayed through Plaintiff's own failure to act and despite its agreement to take no further action against Defendant, Plaintiff filed a Writ of Execution against Defendant for the sale of New Lot 1 at the Cumberland County Sheriff's Sale scheduled for September 5, 2007. 15. Plaintiff's provision of the documentation validating its claim pursuant as promised in the June 2006 agreement is required for both Defendant and buyer to complete the sale of New Lot 1 on August 30, 2007. To this end, Defendant requires immediate action to stay the scheduled Sheriff's Sale so that the sale of New Lot 1 may proceed. 16. Defendant has offered and remains agreeable to placing the funds of its pending sale in escrow and paying Plaintiff's claim after an expedited hearing to determine the amount owed to Plaintiff. With several days to make a decision on this offer, Plaintiff has not responded. 17. As evidenced by the exchange of correspondence between Defendant's counsel and Plaintiff's counsel, Defendant has made every effort to expedite resolution of this matter so that the sale of New Lot 1 may proceed. Copies of the exchange of correspondence between counsel for Defendant and counsel for Plaintiff is attached hereto and incorporated by reference as Exhibit "E." 18. To date, the prospective buyer of New Lot 1 has expended considerable sums of money related to the development of New Lot 1. Consequently, the buyer will suffer permanent, irreparable harm if the Plaintiff is permitted to go forward with its proposed Sheriff's Sale. 19. As a subordinate lienholder, Virginia Calabrese will also suffer permanent, irreparable harm should New Lot 1 be sold at Sheriff's Sale. Correspondence confirming Virginia Calabrese's position is attached hereto and incorporated as Exhibit "F." 20. Plaintiff's unwillingness to provide documentation of its payoff amount is further hindering the sale of New Lot 1 because Virginia Calabrese is unwilling, as indicated by the correspondence attached as Exhibit "F," to move forward with the sale of New Lot 1 until Defendant's dispute with Plaintiff is resolved. 21. Finally, Defendant will suffer permanent, irreparable harm if Plaintiff is permitted to proceed with the scheduled Sheriff's Sale. Such harm will include, but is not limited to, Defendant's inability to satisfy its obligations to Virginia Calabrese and the loss of New Lot 1 to Plaintiff, which is not owed the inflated amount it claims. WHEREFORE, Defendant respectfully requests that this court issue a preliminary injunction to stay the Sheriff's Sale scheduled for September 5, 2007, order that the Writ of Execution be withdrawn immediately, that proceeds of the scheduled transaction be escrowed pending judicial determination of the balance owed and schedule an expedited hearing to determine the amount Plaintiff is owed. MARTSON LAW OFFICES By &,A .J I David A. Fitzsimons, Enquire I.D. No. 41722 Christopher E. Rice, Esquire I.D. No. 90916 Seth T. Mosebey, Esquire I.D. No. 203046 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant Date: August 23, 2007 `a REr«EO P - REn«Aa?E ExHti&7 ?\ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION HANOVER ASSOCIATES, Plaintiff V. CALABRESE & SONS, INC., Defendant Confessed Judgment File No. 04404 Amount Due $323,569.10 Interest 83,914.10 Atty's Comm 5,000.00 Costs 324.00 PRAECIPE FOR WRIT OF EXECUTION TO THE PROTHONOTARY: The undersigned hereby certifies that the below does not arise out of a retail installment sale, contract or account based on a confession, of judgment, but if it does, it is based on the appropriate original proceeding filed pursuant to Act 7 of 1966 as amended; and for real property pursuant to Act 6 of 1974 as amended. Issue a writ of execution in the above matter to the Sheriff of Cumberland County for debt, interest and costs, upon the following described property of the defendant: ALL THOSE TWO CERTAIN adjacent tracts or parcels of land, situate partly in the Borough of Mechanicsburg and partly in the Township of Hampden, bounded and described as follows: PARCEL NO. 1 - ALL THAT CERTAIN Lot of Ground situate in the Borough of Mechanicsburg, County of Cumberland and State of Pennsylvania, more particularly bounded and described as follows, to wit: BEGINNING at a point in the center line of Brandy Lane at comer of land now or formerly of R.D. Leahy; thence along the line of said land now or formerly of R.D. Leahy, the same being along the Western line of Lot Nos. 39, 40, 41, 42, 43 and 44 on the Plan of Curtis Fry, which said Plan is recorded in the Cumberland County Recorder's Office in Plan Book No. 3, at Page 92, South 47 degrees 15 minutes East, 275.2 feet, more or less, to a concrete monument in the line of other land of the grantors herein, now or about to be conveyed to the grantee herein, being Parcel No. 2 hereinafter described; thence along the line of the said other land of the grantors herein, and being Parcel No. 2 herein, South 42 degrees West, 55.03 feet to an iron pin at the corner of land now or formerly of Marlin L. Fry, North 47 degrees 15 minutes West, 275.72 feet, more or less, to a point in the center line of Brandy Lane, aforesaid; thence along the center line {9019487711) of Brandy Lane, North 42 degrees 45 minutes East, 55.00 feet, more or less, to a point and place of BEGINNING. PARCEL NO. 2 - ALL THAT CERTAIN tract of land situate partly in the Borough of Mechanicsburg and partly in the Township of Hampden, County of Cumberland, State of Pennsylvania, bounded and described as follows, to wit: BEGINNING at a point marked by a concrete monument at corner of Parcel No. 1 hereinabove described; thence extending along the Southeasterly line of Parcel No. I herein, South 42 degrees West, 55.03 feet to an iron pin at corner of land now or formerly of Marlin Fry, being also a corner of other land of M.P. Calabrese and Virginia L. Calabrese, his wife; thence along the line of said other land of M.P. Calabrese and Virginia L. Calabrese, his wife, South 47 degrees 15 minutes East, 22.43 feet, more or less, to a point thence continuing along the line of said other land of M.P. Calabrese and Virginia L. Calabrese, his wife, North 44 degrees 03 minutes 59 seconds East, 478.67 feet, more or less, to an iron pin; thence still along the line or said other land of M.P. Calabrese and Virginia L. Calabrese, his wife, South 29 degrees 41 minutes 08 seconds East, 886.65 feet, more or less, to an iron pin in the line of land of the United States of America, presently used as a Naval Supply Depot, North 69 degrees 01 minutes 38 seconds East, 300.00 feet, more or less, to a point marked by a concrete monument; thence continuing along the line of said Land of the United States of America, North 28 degrees 24 minutes 59 seconds West, 1,080.42 feet to a point marked by a pipe in the line of land now or formerly of Curtis Fry; thence along the line of said land now or formerly of Curtis Fry, South 42 degrees West, 338.16 feet, more or less, to a point marked by a concrete monument; thence along the line of land of the same, South 42 degrees 55 minutes 46 seconds West, 435.60 feet, more or less, to a point in the Easterly line of Parcel No. 1, hereinabove described; thence along the Easterly line of Parcel No. 1, South 47 degrees 15 minutes East, 7.23 feet, more or less, to a point marked by a concrete monument at corner of Parcel No. 1 herein, at the point and place of BEGINNING. BEING the same premises which M.P. Calabrese and Virginia L. Calabrese, by their deed dated September 3, 1984 and recorded in the Cumberland County Recorder's Office in Deed Book "X," Volume 30, Page 662, granted and conveyed unto Calabrese and Sons, Inc., a Pennsylvania corporation. CGA LAW FIRM Date: June 6, 2007 sti , Esquire Supr a Court I.D. 485370 135 North George Street York, PA 17401 717-848-4900 telephone 717-843-9039 facsimile cdabb@cgalaw.com Attorneys for Plaintiff (00194877/1} A xecvcieo vavcx i ? R(CYCIABL£ ExiiisvT 1? LINE OF CREDIT PROMISSORY NOTE (Amended and Restated) $300,000.00 October 20, 2003 Amended and Restated June I , 2004 Calabrese & Sons, Inc. 406 Brandy Lane Mechanicsburg, PA 17055 ("Borrower") Hanover Associates 311 East Elmwood Avenue Mechanicsburg, PA 17055 ("Lender") Borrower hereby promises to pay to the order of Lender, in lawful money of the United States of America, at its address indicated above or wherever else Lender may specify, the sum of Three Hundred Thousand and 00/100 Dollars ($300,000.00) or such sum as may be advanced and outstanding from time to time with interest on the unpaid principal balance at the rate and on the terms provided In this Line of Credit Promissory Note (including all renewals, extensions or modifications hereof, this "Note") ON DEMAND by Lender upon which all principal, interest and other charges outstanding hereunder shall be paid in full. INTEREST RATE/REPAYMENT. a. Interest on the outstanding and unpaid principal balance shall be calculated for the actual number of days in the then current calendar year that principal is outstanding over a year of three hundred sixty (360) days, and shall accrue and be paid at the Prime Rate plus 2% (the "interest Rate"). For the purposes hereof, the term "Prime Rate" shall mean the rate of interest per annum from time to time set forth as national prime in the Money Rates section of the Wall Street Journal. Such rate of interest shall change automatically and simultaneously upon the Wall Street Journal's designation of any change in such reference rate. b. Interest on the outstanding principal balance shall be payable monthly. C. Default Rate: Anything in this Note to the contrary notwithstanding, during the existence of any Event of Default hereunder, all Advances hereunder shall bear interest from the date due until paid in full at a rate per annum equal to the Prime Rate plus five percent (5.0%) (the "Default Rate"). 2. LINE OF CREDIT ADVANCES. Borrower may borrow, repay and reborrow, and Lender may advance and readvance under this Note respectively from time to time until the maturity hereof (each an "Advance" and together the "Advances") on an offering basis only and at the sole discretion of Lender. As of the date of each proposed Advance, Borrower shall be deemed to represent that each representation made in the Loan Documents (as defined in Section 7 below) is true as of such date. 3. PURPOSE. Advances pursuant to this Note shall be used solely for the Borrower's short-term working capital needs and equipment acquisitions (leases or sales by Lender to Borrower) to support Borrower's operations. 4. Intentionally Omitted 5. APPLICATION OF PAYMENTS. Monies received by Lender from any source for application toward payment of the Obligations (as defined in Section 7) shall be applied to accrued interest, principal and then to late charges, if any. If an Event of Default occurs, monies may be applied to the Obligations in any manner or order deemed appropriate by Lender. If any payment received by Lender under this Note or other Loan Document is rescinded, avoided or for any reason returned by Lender because of any adverse claim or threatened action, the returned payment shall remain payable as an obligation of all persons liable under this Note or other Loan Documents as though such payment had not been made. fi. COLLATERAL. To secure the full and complete payment and performance of the Obligations, Borrower has granted to the Lender a perfected security interest in all of its right, title and interest in all personal property owned by Borrower or hereafter acquired, as more fully described in the Security Agreement of even date herewith between Borrower and Lender (the "Security Agreement"), including, without limitation, all accounts, inventory, equipment, furniture, fixtures, contract rights, general intangibles, deposits, goods, letters of credit, securities, money, documents, instruments, investment property, chattel paper, permits, intellectual property, intercompany debt and licenses, provided that with respect to contract rights, licenses and permits which according to their terms are not assignable, such liens shall not be required to attach to such property. In connection with, and in addition to the foregoing, the Borrower shall execute and/or deliver such security documents, including the Security Agreement and further agreements, documents and instruments (including, without limitation, financing statements) as the Lender may reasonably require in order for it to obtain and maintain the perfected security interest to be granted herein. 7. LOAN DOCUMENTS AND OBLIGATIONS. The term "Loan Documents" used in this Note and other Loan Documents refers to all documents executed in connection with the loan evidenced by this Note and may include, without limitation, this Note, the -2- Security Agreement, security instruments, financing statements and mortgage instruments whenever any of the foregoing are executed. The term "Obligations" used in this Note refers to any and all indebtedness and other obligations under this Note and all other obligations under any other Loan Document(s). 8. LATE CHARGES. If any payments are not made within 15 days of when due, Borrower shall also pay to Lender a late charge of five cents ($,05) for each dollar so overdue. Acceptance by Lender of any late payment without an accompanying late charge shall not be deemed a waiver of Lender's rights to collect such late charge or to collect a late charge for any subsequent late payment received. 9. ATTORNEYS' FEES AND OTHER COLLECTION COSTS. Borrower shall pay all of Lender's reasonable expenses incurred to enforce or collect any of the Obligations, including, without limitation, reasonable arbitration, paralegals', attorneys', and experts` fees and expenses, whether incurred without the commencement of a suit, in any trial, arbitration, or administrative proceeding, or in any appellate or bankruptcy proceeding. 10. USURY. If at any time the effective interest rate under this Note would, but for this paragraph, exceed the maximum lawful rate, the effective interest rate under this Note shall be the maximum lawful rate, and any amount received by Lender in excess of such rate shall be applied to principal and then to fees and expenses, or, if no such amounts are owing, returned to Borrower. 11. EVENTS OF DEFAULT. Any one or more of the following events shall constitute an Event of Default: a. The Borrower fails to pay on the date on which the same Is due and payable (1) any payment required under this Note; (!I) any fees, costs, expenses or other payments required by this Note to be paid by the Borrower, or (III) any fees, costs, expenses or other payments required by any other Loan Documents to be paid by the Borrower; b. The Borrower fails to perform or observe any other term, covenant, agreement or condition In this Note, or any of the other Loan Documents; C. The Borrower shall fall to pay when due any principal or interest payable for money borrowed, or amounts owed by it under any operating lease, or it shall suffer to exist any other event of default under the terms and conditions of any indenture, mortgage, loan agreement, evidence of indebtedness or capital lease, including but not limited to, that owed by Borrower to either M&T Bank or Commerce Bank, its successors or assigns, all the foregoing involving in the aggregate a material liability or the Borrower, which shall not be remedied within the period of time (if any) within which such agreement permits such default to be remedied; -3- d. The validity, binding nature of, or enforceability of any material terra or provision of this Note or any of the Loan Documents Is disputed by, on behalf of, or in the right or name of the Borrower or any material term or provision of this Note or any such Loan Document is found or declared to be invalid, avoidable or non-enforceable by any court of competent jurisdiction; e. Any financial statement of the Borrower or any warranty or representation made by the Borrower in this Note or any other Loan Document or in any certificate or other writing delivered under or pursuant to this Note or any other Loan Document, or in connection with any provision of this Note or related to the transactions contemplated hereby shall prove to have been false or incorrect or breached, in any material respect on the date as of which made; f. A final judgment or judgments is entered, all or part of which is uninsured, or an order or orders of any judicial authority or governmental entity is issued against the Borrower (such judgment(s) and order(s) hereinafter collectively referred to as "Judgment") (1) for payment of money, which Judgment, in the aggregate, constitutes a material liability of the Borrower; or (ii) for injunctive or declaratory relief which will have a material adverse effect on the Borrower, and such Judgment is not discharged or execution thereon or enforcement thereof stayed pending appeal, within thirty (30) days after entry or issuance thereof, or, in the event of such a stay, such Judgment Is not discharged within sixty (60) days after such stay expires; g. i. The Borrower becomes insolvent and generally fails to pay, or admits in writing its inability to pay its debts as they become due or applies for, consents to, or acquiesces in, the appointment of a trustee, receiver or other custodian for the Borrower, or a substantial part of its property, or makes a general assignment for the benefit of creditors; H. The Borrower commences any bankruptcy, reorganization, debt arrangement or other case or proceeding under any state or federal bankruptcy or insolvency law, or any dissolution or liquidation proceeding; W. Any bankruptcy, reorganization, debt arrangement or other case or proceeding under any state or federal bankruptcy or insolvency law, or any dissolution or liquidation proceeding, is involuntarily commenced against or in respect of the Borrower and such proceeding remains undismissed for a period of sixty (60) days, or an order for relief is entered in any such proceeding; iv. A trustee, receiver or other custodian is appointed for the Borrower or a substantial part of its property. -4- h. There shall occur any Default or Event of Default, as defined in the Loan Documents, or under any other documents evidencing any other obligations of the Borrower to the Lender, including without limitation, under that agreement of sale and lease agreement (ii) dated July 12, 2002 (Lodge & Shipley Lathe S/N 50100), or (ii) dated June 27, 2002 (Tinius Olsen Electromatic Torsion Testing Machine S/N 51126). 12. REMEDIES UPON DEFAULT. If an Event of Default has occurred and is continuing uncured, the fender may, in its sole discretion, but shall not be obligated to (i) by notice to the Borrower declare the principal amount of all Obligations then outstanding, together with all Interest accrued and unpaid thereon, to be immediately due and payable whereupon such amounts shall be immediately due and payable, and the Borrower shall be obligated to reimburse the Lender pursuant to this Note for all amounts payable by the Borrower hereunder, shall be forthwith due and payable, and the same shall thereupon become due and payable without demand, presentment, protest or further notice of any kind, all of which are hereby expressly waived, and/or (ii) exercise all of its rights and remedies under the Loan Documents, (iii) all of the obligations of the Borrower to the Lender, either under this Note or otherwise, will immediately become due and payable without further demand, notice or protest, all of which are hereby expressly waived; and/or (iv) the Lender's commitment to make further loans under this Note or any other agreement with the Borrower will immediately cease and terminate. 13. CONFESSION OF JUDGMENT. THE FOLLOWING PARAGRAPH SETS FORTH A WARRANT OF ATTORNEY FOR ANY ATTORNEY TO CONFESS JUDGMENT AGAINST BORROWER. IN GRANTING THIS WARRANT OF ATTORNEY TO CONFESS JUDGMENT AGAINST BORROWER, THE BORROWER, FOLLOWING CONSULTATION WITH (OR DECISION NOT TO CONSULT) SEPARATE COUNSEL FOR BORROWER AND WITH KNOWLEDGE OF THE LEGAL EFFECT HEREOF, HEREBY KNOWINGLY, INTENTIONALLY, VOLUNTARILY, INTELLIGENTLY AND UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS THE BORROWER HAS OR MAY HAVE TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE CONSTITUTIONS AND LAWS OF THE UNITED STATES OF AMERICA, COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE INCLUDING, WITHOUT LIMITATION, A HEARING PRIOR TO GARNISHMENT AND ATTACHMENT OF THE BORROWER'S BANK ACCOUNT AND OTHER ASSETS. BORROWER ACKNOWLEDGES AND UNDERSTANDS THAT BY ENTERING INTO THIS NOTE CONTAINING A CONFESSION OF JUDGMENT CLAUSE THAT BORROWER IS VOLUNTARILY, INTELLIGENTLY AND KNOWINGLY GIVING UP ANY AND ALL RIGHTS, INCLUDING CONSTITUTIONAL RIGHTS, THAT BORROWER HAS OR MAY HAVE TO NOTICE AND A HEARING BEFORE JUDGMENT CAN BE ENTERED AGAINST BORROWER AND BEFORE THE BORROWER'S ASSETS, INCLUDING, WITHOUT LIMITATION, ITS BANK ACCOUNTS, MAY BE GARNISHED, LEVIED, EXECUTED UPON AND/OR ATTACHMENT SHALL RENDER THE PROPERTY GARNISHED, LEVIED, EXECUTED UPON OR ATTACHED IMMEDIATELY UNAVAILABLE TO BORROWER, IT IS SPECIFICALLY ACKNOWLEDGED BY BORROWER THAT THE LENDER HAS RELIED ON THIS WARRANT OF ATTORNEY AND THE RIGHTS WANED BY BORROWER HEREIN IN -5- RECEIVING THIS NOTE AND AS AN INDUCEMENT TO GRANT FINANCIAL ACCOMMODATIONS TO THE BORROWER. If an Event of Default occurs under this Note or any other Loan Documents, Borrower hereby authorizes and empowers any attorney of any court of record or the prothonotary or clerk of any county in the Commonwealth of Pennsylvania, or in any jurisdiction where permitted by law or the clerk of any United States District Court, to appear for Borrower in any and all actions which may be brought hereunder and enter and confess judgment against the Borrower in favor of the Lender for such sums as are due or may become due hereunder or under any other Loan Documents, together with costs of suit and actual collection costs including, without limitation, reasonable attomeys' fees, with or without declaration, without prior notice, without stay of execution and with release of all procedural errors and the right to issue executions forthwith. To the extent permitted by law, Borrower waives the right of inquisition on any real estate levied on, voluntarily condemns the same, authorizes the prothonotary or clerk to enter upon the writ of execution this voluntary condemnation and agrees that such real estate may be sold on a writ of execution; and also waives any relief from any appraisement, stay or exemption law of any state now in force or hereafter enacted. Borrower further waives the right to any notice and hearing prior to the execution, levy, attachment or other type of enforcement of any judgment obtained hereunder, including, without limitation, the right to be notified and heard prior to the garnishment, levy, execution upon and attachment of Borrower's bank accounts and other property. If a copy of this Note verified by affidavit of the Lender shall have been filed in such action, it shall not be necessary to file the original thereof as a warrant of attorney, any practice or usage to the contrary notwithstanding. The authority herein granted to confess judgment shall not be exhausted by any single exercise thereof, but shall continue and may be exercised from time to time as often as the Lender shall find it necessary and desirable and at all times until full payment of all amounts due hereunder and under any other Loan Documents. The Lender may confess one or more judgments in the same or different jurisdictions for all or any part of the Obligations arising hereunder or under any other Loan Documents to which Borrower is a party, without regard to whether judgment has theretofore been confessed on more than one occasion for the same Obligations. in the event that any judgment confessed against the Borrower is stricken or opened upon application by or on behalf of Borrower or any obligor for any reason, the Lender is hereby authorized and empowered to again appear for and confess judgment against Borrower for any part or all of the Obligations owing under this Note and/or for any other liabilities, as herein provided. 14. WAIVERS AND AMENDMENT. No waivers, amendments or modifications of this Note and other Loan Documents shall be valid unless in writing and signed by the Lender. No waiver by Lender of any Event of Default shall operate as a waiver of any other Event of Default or the same Event of Default on a future occasion. Neither the failure nor any delay on the part of Lender in exercising any right, power or remedy under this Note and other Loan Documents shall operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or remedy. -6- Borrower and any person liable under this Note waives presentment, protest, notice of dishonor, demand for payment, notice of intention to accelerate maturity, notice of acceleration of maturity, notice of sale and all other notices of any kind. Further, each agrees that Lender may extend, modify or renew this Note or make a novation of the loan evidenced by this Note for any period and grant any releases, compromises or indulgences with respect to any collateral securing this Note, or with respect to any other Borrower or any other person liable under this Note or other Loan Documents, all without notice to or consent of each Borrower or each person who may be liable under this Note or other Loan Documents and without affecting the liability of Borrower or any person who may be liable under this Note or other Loan Documents. 15. MISCELLANEOUS PROVISIONS. Assignments. This Note and other Loan Documents shall inure to the benefit of and be binding upon the parties and their respective heirs, legal representatives, successors and assigns. Lender's interests in and rights under this Note and other Loan Documents are freely assignable, in whole or in part, by Lender. In addition, nothing in this Note or any of the Loan Documents shall prohibit Lender from pledging or assigning this Note or any of the Loan Documents or any interest therein to any Federal Reserve Bank. Borrower shall not assign its rights and interest hereunder without the prior written consent of Lender, and any attempt by Borrower to assign without Lender's prior written consent is null and void. Any assignment shall not release Borrower from the Obligations. Applicable Law; Conflict Between Documents. This Note and other Loan Documents shall be governed by and construed under the laws of the Commonwealth of Pennsylvania without regard to conflict of laws principles. Jurisdiction. Borrower irrevocably agrees that any suit, action or proceeding arising under or with respect to this Note will be instituted in the Court of Common Pleas of Cumberland County, Pennsylvania, or the United States District Court for the Middle District of Pennsylvania, and irrevocably and unconditionally submits to the jurisdiction of each such Court for such purpose. Severability. If any provision of this Note or of the other Loan Documents shall be prohibited or invalid under applicable law, such provision shall be ineffective but only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Note or other such document. Notices. Any notices to Borrower shall be sufficiently given, if in writing and mailed or delivered to the Borrower's address shown above or such other address as provided hereunder, and to Lender, if in writing and mailed or delivered to Lender's address shown above or such other address as Lender may specify in writing from time to time. In the event that Borrower changes Borrower's address at any time prior to the date the Obligations are paid in full, Borrower agrees to promptly give written notice of said change of address by registered or certified mail, return receipt requested, all charges prepaid. 7- Plural; Captions. All references in the Loan Documents to Borrower, person, document or other nouns of reference mean both the singular and plural form, as the case may be, and the term "person" shall mean any individual, person or entity. The captions contained in the Loan Documents are inserted for convenience only and shall not affect the meaning or interpretation of the Loan Documents. Binding Contract. Borrower by execution of and Lender by acceptance of this Note agree that each party is bound to all terms and provision of this Note. Fees and Taxes. On or before the date hereof, Borrower shall pay all costs, expenses and fees (including, without limitation, insurance, environmental assessment, searches, recording and reasonable attorneys' fees) associated with this transaction. Borrower shall promptly pay all documentary, recordation and/or similar taxes on this transaction whether assessed at closing or arising from time to time. 16. INSURANCE. Borrower shall cause to be provided and maintain continuously such insurance coverage and policies as are normally carried and maintained by companies engaged in the same or similar business to those operated by the Borrower. All liability policies of insurance shall name the Lender as an additional insured and all property insurance policies shall name the Lender as lender loss payee or mortgagee loss payee. The Lender shall have the exclusive right to receive the proceeds from such insurance and settle claims thereunder and while there shall be any obligation outstanding under this Note, the Lender shall have the exclusive right to direct the use of such proceeds. The original or a copy of each policy or a certificate that the same has been issued and is currently in effect shall be delivered to the Lender no later than the date of execution of this Note. 17. WAIVER OF JURY TRIAL. BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT TO A TRIAL BY JURY WITH REGARD TO A DISPUTE HEREUNDER OR UNDER ANY OF THE LOAN DOCUMENTS. BORROWER ACKNOWLEDGES AND AGREES THAT THIS SECTION IS A SPECIFIC AND MATERIAL ASPECT OF THIS NOTE AND THAT THE LENDER WOULD NOT EXTEND CREDIT TO THE BORROWER IF THE WAIVER SET FORTH IN THIS PARAGRAPH WAS NOT A PART OF THIS NOTE. 18. AMENDMENT AND RESTATEMENT. This Note amends and restates that Promissory Note dated October 20, 2003, drawn in the initial principal sum of $110,000, and all advances thereunder or otherwise from Lender to Borrower on or after October 20, 2003, and extending to this date. Such net advances outstanding on the date hereof are approximately $213,476.95. -8- IN WITNESS WHEREOF, Borrower, on the day and year first above written, has caused this Note to be executed under seal. Attest/Witness: ( I kA 4??. CALABRESE & SONS, INC. Z,-- N Joseph A. Calabrese ByPtIme: ? resid ent Witness: For value received, the undersigned hereby personally guarantees as a surety payment of the above obligation in accordance with its terms and in such capacity agrees to the provisions of Section 14 of the above Note 611? (Seal) pep A. Calabrese -9- A RLCYCIEDPAPER RECYCLABLE Ex)-iign C JORDAN D. CUNNINGHAM ROBERT E. CHERNICOFF MARC W WITZIG BRUCE J. WARSHAWSKY JOHN M. HYAMS KELLY M. KNIGHT CUNNINGHAM & CHERNICOFF, P.C. ATTORNEYS AT LAW P.O. BOX 60457 HARRISBURG, PENNSYLVANIA 17106-0457 HERSHEY TELEPHONE (717) 534-2833 IRS NO. 23-2274135 Street Address: 2320 N. 2nd Street Harrisburg, PA 17110 TELEPHONE (717) 238-6570 FAX (717) 238-4809 June 15, 2006 VIA FAX 730-7366 & REGULAR MAIL David A. Fitzsimons, Esquire c/o David W. Reager, Esquire Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011-4642 RE: David Fisher / Calabrese & Sons C&C Flle No. 901305 Dear David: This letter is to confirm the understanding which was reached on the telephone. The terms are as follows: 1) At closing today, Mr. Fisher will receive the sum of $250,000. In exchange, he will provide a release of his mortgage and judgments (the "Liens') which he holds against the Calabrese & Sons property. 2) The Liens will remain of record as to the remaining real property and as to any other assets of Calabrese. Mr. Fisher shall have a first lien position on the remaining real property of Calabrese. 3) The first lien position shall be confirmed by an up to date title search which you will supply. 4) The balance which is owed to Mr. Fisher shall be determined by a process whereby the parties will agree on an independent accountant who will review the figures with Mr. Fisher, Mr. Calabrese and such counsel as are necessary. In the event that the parties are unable to agree at that point, the parties will either submit to mediation or a declaratoryjudgment action will be filed in the appropriate Court of Common Pleas. CUNNINGHAM & CHERNICOFF, P.C. ATTORNEYS AT LAW David W. Reager, Esquire June 15, 2006 Page 2 5) For purposes of payments only, Mr. Fisher shall be deemed to have the sum of $400,000 still owed to him as to the amounts owed under the two Notes and secured by the mortgage and judgments (the "Temporary Amount'). In the event the amount owed under the two (2) Notes is determined to be other than the Temporary Amount, such Temporary Amount shall be adjusted based upon the process set forth above. Interest will accrue on the Temporary Amount at the rate of prime plus 2%. Monthly payments beginning July 1, 2006 shall be made to Mr. Fisher in the amount of $5,000 per month to be applied first to the interest at the rate of prime plus 2% on the unpaid balance of the Temporary Amount with the balance after payment to be applied to the principal on the Temporary Amount. 6) Closing on the sale of the remaining real property of Calabrese shall be by December 31, 2006 or default shall occur. If the foregoing is acceptable, please counter sign this letter on behalf of your client and return to me. You may inform the title company who is performing the closing that we will execute appropriate releases. I assume that they will provide me with a Release of Liens as are necessary for my review. If I need to prepare same, please let me know. Sincerely yours, CUNNINGHAM & CHERNICOFF, P.C. Robert E. Chernicoff REC/lbd cc: David Fisher I have read an agr to the foregoing. David A. Fitzsimons, Esquire #,J OW R...... ? l0. Rfv(IAP.1 AR? F F,Y\ H ??3i7 ? =17-2007 09:01AM FROM-Gingrich,t-'th,Klingensmith,& Dolan Arro arL4w John M. Smith Thomas G. Klingensmith Kevin D. Dolan Jeffrey S. Shank JoAnne Murphy Julle M. Cooper Henry F. Gingrich (1952-2001) 222 South Market Street Suite 201 R O. Box 267 Elizabethtown, PA 17022 Phone(717)367.1370 Pax(717)387-3219 45 East Orange Street Lancaster, PA 17602 Phone(717)393-3684 Fax (717) 393-0553 t Web Site WWW.GSKDLAW.COM E-mail gskd@gskdlaw.com VIA FACSIMLE - 843-9039 Christian J. Dabb, Esquire Countess Gilbert Andrews, PC 135North George Street j York, PA 17401 Re: Calabrese & Sons, Inc. Land Dear Mr. Dabb: 7173673219 T-259 P. 002/002 F-008 August 17, 2007 I am representing the purchaser of the Calabrese lands. I have been in contact with Attorney Fitzsimons in order to keep myself apprised of progress towards clearing title so we may settle. In fact, the settlement has already been continued once because I understand that your client, Hanover Associates and Calabrese have been unable to agree on a payoff amount. Please be advised that we are in the process ofscheduling this settlement to take place on Thursday, August 30, 2007_ My client has all arrangements and financing made to complete the closing on that date. Attorney Fitzsimons has advised me of the steps they are taking to either enable the settlement to occur or to remove the property from the Sheriff` Sale list on September 5, 2007. I anticipate these matters will be resolved promptly. Please contact me if you have questions. Very truly yours, GINGRICH, SMITH, G SMITH & DOLAN Jo M. Smith JMS:s1S pc David Fitzsimons, Esquire / via facsimile - 243-1850 John Fenstermacher, Esquire / via facsimile - 691-5441 A aicvciso rnvea i ? afcvaneiF Exi-1if2->) . E \A,\R-f'S0N DEARDOxrF WILLIAMS OTTO v_,1l,lt,0Y ?,L M ARTSON LAW OFFICES WILLLLM F N'IARTSON JOHN B. FOWLER III DANIEL. K. DEARDORFF THOMAS J. WILLIAMS* IVO V. OT70 III HUBERT X. Guam GEORGE B. FALLER JR.* DAVID A. FITZSIMONS CHRISTOPHER E. RICE JENNIFER L. SPEARS SETH T. MOSEBEY 10 EAST HIGH STREET CARLISLE, PENNSYLV,?,NIA 17013 TELEPHONE (717) 243-3341 FACSIMILE (717) 243-1850 INTERNET www.martsonlaw.com August 17, 2007 VIA FACSIMILE 717-843-9039 Christian J. Dabb, Esquire Countess Gilbert Andrews, PC 135 North George Street York, PA 17401 RE: Calabrese & Sons, Inc. - Fisher Our File No. 11093.2 Dear Christian: BOARD CERTIFIED CMLTRIAL SPECIALIST This letter is in follow-up to our telephone conversation yesterday evening. I appreciate the considerable progress made through our frank discussions. I know that by now you have Jack Smith's letter; and assure you that Calabrese is onboard with the following proposal and appreciates your efforts. We still believe that the best option is to proceed with settlement and to determine the amount owed to your client thereafter. If we are unable to reach an agreement to this effect today, we will be required to file a petition to set aside the Sheriff's sale on September 5, 2007. The following offer is not an admission that Hanover is owed additional funds, but rather is a good faith attempt to come to a mutually acceptable resolution. In consideration of Hanover voluntarily cancelling the scheduled Sheriff's sale, Calabrese is willing to proceed with the sale of the property and to direct the settlement agent to disburse to your client $25,000.00 from the proceeds of the sale. Thereafter, we will place the net proceeds of the sale (excluding the costs of the settlement and the $25,000.00 paid to your client) into escrow. Your client will then have 30 days in which to provide documentation of the amount it is owed. After your client provides such documentation, Calabrese will be given 30 days to respond. Once both sides have exchanged documentation regarding the amount owed to Hanover Associates, both parties will have 10 days to reach a mutually agreed upon amount that is owed. Should these efforts fail, both parties agree to proceed to court so that a final figure may be judicially determined. INFORMATION 9 ADVICE • ADVOCACY 5M Christian J. Dabb, Esquire Countess Gilbert Andrews, PC August 17, 2007 Page 2 Please contact me as soon as possible to confirm Hanover's acceptance of this proposal. As stated above, if we cannot reach an agreement to set aside the scheduled Sheriff s sale, we will be forced to file a petition for emergency relief, and all offers of partial payment will expire. Very truly yours, MARTSON LAW OFFICES NmJ A !4? 77 - SIJL- David A. Fitzsimons DAF/mmp cc: John M. Coles, Esquire (via facsimile 717-231-6669) John R. Fenstermacher, Esquire (via facsimile 717-691-5441) Mr. Joseph Calabrese (via facsimile 717-697-6506) F \MESU 1093\11093,10 Cd4 INFORMATION - ADV ICE - ADVOCACY " L A V" F 1 Z 11 Christian J. Dabb, Attorney cdabb@cgalaw.com Ext. 152 Aug I! t 17, 2007 VIA 11ACSIMILE1 " 17.843.9039 kNI -IIZST CL,VSS MAIL Davi : A. Fitzsimons, ]:squire l vlart.: in Law Off icos 0 E. t High Street Carli ,le, PA 17013 Re: Hanover Associates v. Calabrese & Sons, Inc. No. 04-3940 Dear ::avid, I appreciate yoLr candid and expedient response to our discussions. I have indeed rcceii o d the letter from Mr. Smith, and I briefly relayed the general flow of our discussion last e veni i g. I also appreciate that you have provided an offer this afternoon, I have made every effort to contact Yr. Fisher with regard to this effort, and he is unavailable this afternoon. As I an su : you can appreciate the rather short notice on the offer that you have provided, I will rt,quir : at least until Monday afternoon to review this with Mr. Fisher. 1 will certainly convey your first offer to Mr. Fisher and review with him the partic, l l arities of such a potential resolution. I would also request, that while I endeavor to resoly : his concerns regarding such an offer by Monday afternoon, I would reiterate our request that th ; equipment subject to the lease agreements that are currently in the possession of Mr. Calabi t!;e be returned. Should you be able to derive some potential resolution of the outstanding "oven rent assign!nt-mt,, as well, I'm sure my Client would be receptive to such efforts. Perhaps yc,u ca establish some parameters for resolution of these collateral matters, while I review your presen )ffer. Siicer;IY C)'risti.ll . Dabb CJDIja cc: Da,id Fisher ,,)020«455/q C(73A L sv f rn CGA Pm i ,?n ?l Center, 135 N. George Street, Yc[ <, 1) 7.398_a OW RECYCLED PAPER a RECYCLABLE Exmts?-i 46-,-'-U/2007 17:05 FAX 717 233 1386 RHOADS & SINGN LLP R002 k, od? Yr .f. I? r ?I f'r. I I/ I Y ^ i l ? I , f f , P?1`0I,7',I-6640 S''.r--- 7,171 2311`-6669 RH Y^ yl r 'Yl •I ? , I i ff + ? r i .f" Y' ?. 'jcal'es,(a?choads-sis?on.cot+'?'; ,? I ~fY &.-SINON, I .P f Foam: 9250/01 August 20, 2007 Re: Calabrese David A_ Fitzsimons, Esquire VIA FACSIIVIILE (717) 243-1850 MARTSON DEARDOUP WILLIAMS & OTTO AND FIRST CLASS MAIL 10 East High Street Carlisle, PA 17013 Dear David: Thank you for the copies of your recent correspondence with Christian Dabb regarding the ongoing negotiations between Calabrese & Sons, Inc. and Dave Fisher_ We understand from this correspondence that the company hopes to close on the sale of its remaining property no later than the end of the month, pending a resolution with Mr. Fisher. As you know, Mrs. Calabrese still has a mortgage encumbering this property. As a result, the company will not be able to deliver good and marketable title to the buyer without a release of Mrs. Calabrese's mortgage. You should be aware that we will riot recommend that Mrs_ Calabrese execute a release without, at a minimum, more detail as to the ongoing dispute with Mr. Fisher and an understanding and an agreement as to what Mrs. Calabrese will be paid from the sale. Mrs. Calabrese has long been promised that she will be paid from the proceeds of this sale, and she willingly released her mortgage on the manufacturing facility, which the company sold last year, in reliance on that promise. It is also worth noting that she was assured at that time that regular monthly loan payments would resume, which they have not. In light of that, we would appreciate additional information with respect to the amount in dispute with Mr. Fisher and how the company intends to address Mrs. Calabrese's mortgage at closing. Very truly yours, AD a, SINON LLP J Coles cc: Virginia L. Calabrese John P. Manbeck, Esquire 660913.1 Rhoads 6s Sinan LLP • Attorneys at. Law • Twelfth Floor a One South Marker Square • P.O. 13ox 1146 Harrisburg, PA 17108-1146 • ph (717) 233-5731 • fz (717) 232-1450 • www_rhoads-sinon.corn 4 VERIFICATION I, Joseph Calabrese, President of Calabrese & Sons, Inc., hereby verify that I am authorized to sign this Verification and have reviewed the foregoing document and to the extent that the foregoing document contains facts supplied by or known to me, they are true and correct to the best of my knowledge, information and belief'. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S.A. x4904, relating to unsworn falsification to authorities. Calabrese & Sons, Inc. )Jss 4 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 Motion for Preliminary or Special Injunction was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Christian J. Dabb, Esquire COUNTESS GILBERT ANDREWS, PC 135 North George Street York, PA 17401 John M. Smith, Esquire Gingrich, Smith, Klingensmith & Dolan 222 South Market Street Suite 201 P.O. Box 267 Elizabethtown, PA 17022 John M. Coles, Esquire Rhoads & Sinon LLP One South Market Square Twelfth Floor P.O. Box 1146 Harrisburg, PA 17108-1146 MARTSON LAW OFFICES By , Mary. Price Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: August 23, 2007 C1 r J C..J Q Sri t 7 r°? HANOVER ASSOCIATES, PLAINTIFF V. CALABRESE & SONS, INC., DEFENDANT ORDER OF COURT AND NOW, this -c2-7 day of August, 2007, a hearing on the within request for a preliminary/special injunction shall be held at the Cumberland County Courthouse, Carlisle, Pennsylvania in Courtroom Number 2, at 9:45 a.m., Wednesday, August 29, 2007. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : 04-3940 CIVIL TERM By the C Christian J. Dabb, Esquire For Plaintiff Edgar B. Bayley, J. copy rn?ttLL David A. Fitzsimons, Esquire - 0a FY Seth T. Mosebey, Esquire For Defendant Aa .4-f J . J F1t.so,?5t ? L Q ?vs? ec L-s - 912 V/07 ,.. <77-? ?r? Christian J. Dabb, Esquire Supreme Court I.D. 85370 CGA Law Firm 135 North George St. York, PA 17401 Attorneys for Plaintiff HANOVER ASSOCIATES, Plaintiff V. CALABRESE & SONS, INC., Defendant IN COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Docket No. 2004 - 3940 Civil Action - Law RESPONSE TO DEFENDANT'S MOTION FOR PRELIMINARY INJUNCTION AND NOW, this 28th day of August, 2007 comes the Plaintiff, Hanover Associates, by and through its counsel, CGA Law Firm, and hereby responds to the Defendant's Motion for Preliminary Injunction as follows: 1. Admitted. 2. Admitted. 3. Admitted in part and denied in part. Plaintiff admits this averment insofar as the Defendant's property was subdivided into two lots. The remainder of the averment is denied in that Plaintiff has been repeatedly assured of potential sale of the Property by Defendant and no confirmation of a sale has ever been received. Therefore, Plaintiff is without sufficient knowledge to form a belief as to the truth of this averment and strict proof is demanded. 4. Admitted. 5. Denied. It is expressly denied that pursuant to the Agreement, Plaintiff would take no further action against the Defendant. Defendant defaulted on Term 6 of (00202295/1) the Agreement and failed to sell the relevant property prior to December 31, 2006. Please see the Agreement attached hereto and incorporated herein as Exhibit "A." 6. Denied, insofar as the document speaks for itself. Furthermore, the averment contains a legal conclusion for which no response is required. 7. Admitted. 8. Plaintiff is without sufficient knowledge to form a belief as to the truth of this averment and strict proof is demanded. 9. Admitted. 10. Denied. Plaintiff has requested the opportunity to review documentation which supports its payoff amount with Defendant and, in fact, provided partial disclosure of the validation of said amounts at the end of July. By way of further answer, the Plaintiff is unaware of any valid prior attempts to sell said property, and has received only one notice of an attempt to sell wherein the Defendant provided notice to the Plaintiff after the Defendant's Property was listed for execution in June, 2007. Defendant provided notice of the sale only immediately prior to the sale taking place. 11. Denied. It is expressly denied that the Plaintiff failed to provide the requested documentation. Plaintiff provided spreadsheets at the end of July 2007 pursuant to Defendant's request and offered to supply actual copies of checks, which the Defendant recently rejected and questioned the validity of same. 12. Denied. Plaintiff is without sufficient knowledge to form a belief as to the truth of this averment and strict proof is demanded. 13. Denied. To the contrary, the Plaintiff has completely cooperated with the )00202295/1) 2 Defendant's most recent request to resolve this matter and, under duress created by the Defendant, has provided the spreadsheets as requested. Further, Plaintiff was willing to provide the additional information requested, only to be notified that such materials would come too late to be of any assistance. Plaintiff would also note that Defendant has yet to provide any basis for its belief that the sums in dispute are incorrectly stated under the present execution documentation. 14. Denied. Plaintiff denies this averment insofar as it contains a legal conclusion for which no response is required. In addition, it is expressly denied that the Plaintiff has acted to delay the resolution of this matter. 15. Denied. Said averment is expressly denied insofar as the Defendant has had numerous opportunities to notify Plaintiff of a pending sale, and to provide full disclosure of the value of said sale so that Plaintiff could make an educated decision as to the status of the prior Agreement which Defendant defaulted on as of December 31, 2006. Defendant failed to take any action with regard to said Agreement for the entire period of January 1, 2007, until the present date only to file this Preliminary Injunction at the last conceivable opportunity prior to the execution of the pending Sheriff s sale. In addition, Defendant has had the opportunity to contest said confession of judgment and rather than do so, filed the above Preliminary Injunction only a week prior to the Sheriffs sale of the Property in an effort to further delay proper payment to the Plaintiff. 16. Denied. Plaintiff has responded to the recent requests of the Defendant, only to be ignored on its latest counteroffer which was provided to the Defendant immediately prior to the filing of its Motion for Preliminary Injunction. 17. Denied. Defendant only recently attempted to resolve this matter by I M02295/1) 3 making an actual good faith offer, which certainly could have been provided prior to the listing of the Property for execution in June, as Plaintiff provided Defendant a full six months to provide an offer and discuss resolution. 18. Denied. Plaintiff is without sufficient knowledge to confirm or deny said averment and strict proof is demanded. Plaintiff is without sufficient knowledge to form a belief about any potential damages the buyer may suffer in that the buyer fails to have any standing regarding this Motion before this Honorable Court. 19. Denied. Plaintiff is without sufficient knowledge to confirm or deny "permanent and irreparable damages" of a third party who does not have standing with regard to this Motion. 20. Denied. Plaintiff is without sufficient knowledge to confirm or deny said averment and strict proof is demanded. 21. Denied. To the contrary, by permitting the Sheriff's sale to go forward the Defendant will not be irreparably harmed, as Defendant has made no effort to resolve the judgment entered against it and executed upon either by filing a Petition to Open the Judgment or any other proper form of contest the execution of the judgment against it. Since June 2007, Defendant did not make any effort to resolve this matter other than to suddenly indicate that the property was going to be sold and not providing reasonable notice to the Plaintiff of the sale of the Property. WHEREFORE, Plaintiff respectfully requests that this Honorable Court deny the Defendant's Motion for a Preliminary Injunction and permit the Sheriffs sale to go forward as scheduled. 22. Plaintiff incorporates the preceding paragraphs as though fully set forth herein. 23. In the present case, the Defendant has failed to establish that the actions of the Plaintiff are improper or that it would suffer any form of irreparable harm. Preliminary injunction is extraordinary, interim remedy that should not be issued unless moving party's right to relief is clear and wrong to be remedied is manifest. Moreover, preliminary injunction, if issued, should be no broader than is necessary for petitioner's interim protection; thus, when preliminary injunction contains mandatory provisions which will require change in position of parties, it should be granted even more sparingly than one which is merely prohibitory.--Anchel v. Shea. 762 A.2d 346 (Pa. Super. Ct. 2000). 24. Generally, a petitioner must establish actual and substantial injury done or threatened in order to be entitled to injunctive relief. 1 P.L.E. COURTS § 375. Injury is deemed irreparable only where it cannot be adequately compensated in damages. Id. "Where an injury may be adequately compensated in damages, the fact that the parry who is liable to pay the damages may be unable to do so does not of itself make the injury irreparable so as to authorize the issuance of an injunction." Id. (citing Luckenbach S.S. Co. v. Norton, 21 F. Supp. 707, 709 (D. Pa. 1937)). 24. Defendant defaulted on the Agreement by failing to sell the Property in accordance with its terms on or before December 31, 2006. 25. Defendant has failed to prove that the Sheriff's sale of the Property scheduled to commence on September 5, 2007 will cause actual and substantial injury to Defendant. (00202295/1) 5 26. If Defendant's Motion for Preliminary Injunction is granted and the Sheriff s sale is cancelled, Plaintiff will suffer actual and substantial injury in that its judgment against Defendant will remain unsatisfied. WHEREFORE, Plaintiff respectfully requests that this Honorable Court deny the Defendant's Motion for a Preliminary Injunction and permit the Sheriffs sale to go forward as scheduled. Respectfully submitted, CGA LAW FIRM C stian J. b, squire Supreme C)dbft I.D. #85370 135 North George Street York, PA 17401 717-848-4900 717-843-9039 fax Attorneys for Plaintiff (00202295/1) 6 JORDAN D. CUNNINGHAM ROBERT E. CHEINICOFF 1AARC'.V. WIMC; 9RUCE ;. WARSHAWSKY OHN ?1. HYAMS KELLY tit. Y-NIGHT CUNNINGHAM & CHERNICOFF, P.C. ATTORNEYS AT LAW P.O. BOX 60457 HARRISBURG, PENNSYLVANIA 17106-0457 TELEPHONE (717) 238-6370 FAX (717) 338-4609 June 15, 2006 VIA FAX 739-7366 & REGULAR MAIL David A. Fitzsimons, Esquire c/o David W. Reager, Esquire Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011-4642 RE: David Fisher 1 Calabrese & Sons C&C File No. 901305 Dear David: HERSHEY TELEPHONE i 7'17) 5;. 1-2833 IRS `O. 3-3274135 Street Address: 2320N 2nd Street Harrisburg, PA 171110 This letter is to confirm the understanding which was reached on the telephone. The terms are as follows: 1) At closing today, Mr. Fisher will receive the sum of $250,000. In exchange, he will provide a release of his mortgage and judgments (the "Liens") which he holds against the Calabrese & Sons property. 2) The Liens will remain of record as to the remaining real property and as to any other assets of Calabrese. Mr. Fisher shall have a first lien position on the remaining real property of Calabrese. 3) The first lien position shall be confirmed by an up to date title search which you will supply. 4) The balance which is owed to Mr. Fisher shall be determined by a process whereby the parties wi 11 agree on an independent accountant who will review the figures with Mr. Fisher, Mr. Calabrese and such counsel as are necessary. In the event that the parties are unable to agree at that point, the parties will either submit to mediation or a declaratoryjudgment action will be tiled in the appropriate Court of Common Pleas. CU,\'NINGHA.M & CHERNICOFF, P.C. ATTORNEYS AT LAW David W. Reager, Esquire June 15, 2006 Page 2 5) For purposes of payments only, Mr. Fisher shall be deemed to have the sum of 5400,000 still owed to him as to the amounts owed under the two Notes and secured by the mortgage and judgments (the "Temporary Amount'). In the event the amount owed under the two (2) Notes is determined to be other than the Temporary Amount, such Temporary Amount shall be adjusted based upon the process set forth above. Interest will accrue on the Temporary Amount at the rate of prime plus 2%. Monthly payments beginning July 1, 2006 shall be made to Mr. Fisher in the amount of $5,000 per month to be applied first to the interest at the rate of prime plus 2% on the unpaid balance of the Temporary Amount with the balance after payment to be applied to the principal on the Temporary Amount. 6) Closing on the sale of the remaining real property of Calabrese shall be by December 31, 2006 or default shall occur. If the foregoing is acceptable, please counter sign this letter on behalf of your client and return to me. You may inform the title company who is performing the closing that we will execute appropriate releases. I assume that they will provide me with a Release of Liens as are necessary for my review. If I need to prepare same, please let me know. Sincerely yours, CUNNINGHAM & CHERNICOFF, P.C. Robert E. Chernicoff REC.'lbd cc: David Fisher i have read an agr, to the foregoing. David A. Fitzsimons, Esquire CERTIFICATE OF SERVICE I hereby certify that on this 29 h day of August 2007 a true and correct copy of the foregoing Response to Defendant's Motion for Preliminary Injunction via hand-delivery, upon: David A. Fitzsimons, Esquire Christopher E. Rice, Esquire Seth T. Mosebey, Esquire MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 CGA LAW FIRM Christian J abb, squire (00202295/1) c-a -r? ?'? (''.. :,?-,?: `y'Yi?l? i ?{? ? ? f _.+? 7 y f ti HANOVER ASSOCIATES, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. CALABRESE & SONS, INC., DEFENDANT 04-3940 CIVIL TERM ORDER OF COURT AND NOW, this 2-Q1 day of August, 2007, this matter having been called on a petition of Calabrese & Sons, Inc., for a preliminary/special injunction, and the parties having reached an agreement to resolve the issue before the court today, IT IS ORDERED: (1) The Sheriffs sale scheduled for September 5, 2007, regarding the subject property, IS STAYED GENERALLY. (2) The scheduled settlement on the property shall proceed. Hanover Associates shall receive $50,000 of the proceeds at that settlement representing a partial payment of the amounts claimed by Hanover. (3) The net proceeds from the settlement shall be placed in escrow with the buyer's attorney. Those proceeds shall be released either upon a written agreement between the parties or after any final order following litigation. (4) The lien of the judgments and mortgages to be released as a result of the settlement on the property shall be paid in the same order from the escrow funds as they will no longer be liens against the property sold. (5) As to the dispute involving the total amount claimed by Hanover, Hanover shall provide to the opposing parties documentation of that amount not later than the C%i z ? ` [i Oct _ ` i cv - '7 04-3940 CIVIL TERM end of September, 2007. Calabrese shall similarly respond not later than fifteen (15) days thereafter with documentation of the total amount it claims. (6) If the dispute as to the amounts claimed is not resolved by the end of October, 2007, either party may seek a hearing before this judge to resolve that issue. VGhristian J. Dabb, Esquire For Plaintiff ??avid A. Fitzsimons, Esquire ,odhn R. Fenstermacher, Esquire For Defendant • _? ,, hn M. Smith, Esquire For Intervenor Sheriff sal -2- ?' w. 9 0 HANOVER ASSOCIATES, LP, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, PENNSYLVANIA VS. No. 3940 CIVIL 2004 CALABRESE & SONS, INC., Defendant CIVIL ACTION -LAW In relation to the above referenced Judgment, for value received, the undersigned, with the legal authority to do so, hereby releases from the lien, effect and operation of the above judgment: ALL THAT CERTAIN tract of land known as Lot No. 1, Brandy Lane, partly in the Township of Hampden and partly in the Borough of Mechanicsburg, County of Cumberland and Commonwealth of Pennsylvania, known as Tax Parcel No. 10-22-0521-015. Provided, however, that nothing herein contained shall affect such Judgment or the lien thereof or its legal validity upon or against any other property of Defendant in Cumberland County, Pennsylvania or elsewhere. This Judgement Release is being executed pursuant to an Order of the Court of Common Pleas of Cumberland County, Pennsylvania, dated August 28, 2007. Witness my hand and seal this <n day of a ?-a-. 2007. HANOVER ASSOCIATES, LP By: eg':?j Date: David G. Fisher, General Partner IMU ALL THAT CERTAIN tract of land with improvements thereon erected situate partly in Hampden Township and partly in the Borough of Mechanicsburg, Cumberland County, Pennsylvania, bounded and described according to the Calabrese & Sons, Inc., Preliminary/Final Subdivision/Lot Consolidation Plan prepared by Penn Terra Engineering, Inc., dated November 16, 2005, and recorded in Cumberland County, Pennsylvania Plan Book92, Page 44, as follows: BEGINNING at an iron pin found on the dedicated right-of-way line of Brandy Lane (50' row) at the northwestern corner of land now or formerly of Mary Frances & Floyd E. Weaver, thence along said land of Weaver and land now or formerly of William L, Jr. And Deborah S. Shipman, South 50 degrees 34 minutes 52 seconds East 244.48 feet to an iron pin found; thence along said land of Shipman, an unopened street, and land now or formerly of Stephen F. & Laura E. Sinkonis, forth 38 degrees 35 minutes 08 seconds East 435.00 feet to aniron pin found; thence along an unopened street, land now or formerly of Roy E., & Carol P. Mason, Bay Street (private), and land now or formerly of Jeffrey T. & Lorraine R. Fleming, North 38 degrees, 40 minutes 48 seconds East 332.11 feet to a %z" pipe found; thence along land now or formerly of the United States of America, South 31 degrees 45 minutes 01 second East 1,080.42 feet to a 1" pipe filled with concrete; thence along same, South 65 degrees 41 minutes 40 seconds West 658.31 feet to an iron pin found; thence along New Lot 2 as set forth on the above-referenced Plan the following three courses and distances: (1) North 24 degrees 27 minutes 41 seconds West 490.52 feet to an iron pin found; (2) North 42 degrees 05 minutes 07 seconds West 179.93 feet to aniron pin found; and (3) South 37 degrees 05 minutes 01 second West 66.58 feet to an iron pin found; thence along land now or formerly ofMichael S. Nailor, North 50 degrees 34 minutes 52 seconds West 325.26 feet to an iron pin found; thence along said Brandy Lane, North 38 degrees 53 minutes 34 seconds East 55.03 feet to an iron pica found, the point and place of Beginning. BEJNGrNew Lot 1 on the Calabrese & Sons, Inc., Preliminary/Final SubdivisionMoot Consolidation Plan containing 14.953 acres. 4 Uj tJt ?C O F. TILES1Clients\ 1 109311 1093.2. mot 1 Created: 9/20/04 0 06PM Revised. 12/5/07 139PM David A. Fitzsimons, Esquire I.D. No. 41722 MARTSON DEARDORFF WILL MARTSON LAW OFFICES IAMS OTTO GILROY & FALLER 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant HANOVER ASSOCIATES, Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 04-3940 CALABRESE & SONS, INC., CIVIL ACTION - LAW Defendant. JURY TRIAL DEMANDED MOTION FOR STATUS CONFERENCE AND NOW, comes Defendant, Calabrese MARTSON LAW & Sons, Inc., by and through its counsel OFFICES, and hereby moves this Honorable Court to schedule a Status Conference in the above-referenced matter to ' develo address Plaintiff's Motion for Clarification co pments in the case since August 28, 2007 , nfer on and to set a hearing date and time, if required. Date: December 5, 2007 MARTSON LAW OFFICES By David A. Fitzsimons, Esquire I.D. No. 41722 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson Law Offices, hereb copy of the foregoing Defendant's Motion for Status Conference was sere y certify that a same in the Post Office at Carlisle, PA, first class mail served this date by depositing postage prepaid, addressed as follows: Christian J. Dabb, Esquire CGA Law Firm CGA Professional Center 135 North George Street York, PA 17401 MARTSON LAW OFFICES B l? Tricia D. Eckenroad Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: December 5, 2007 C "7 ---{ [ t. r -, i 71 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION HANOVER ASSOCIATES, Plaintiff V. No. 04-3940 CALABRESE & SONS, INC., Defendant The Honorable Edgar B. Bayley MOTION TO CLARIFY ORDER AND NOW, this 5th day of December 2007 comes the Plaintiff, Hanover Associates, Inc., by its attorneys, Christian J. Dabb, Esquire, of the CGA Law Firm and files this Motion to Clarify Order as follows: 1. On August 29, 2007 the Honorable Edgar B. Bayley entered an Order in the above- captioned case, a copy of which is attached hereto and incorporated herein as Exhibit "AO. 2. Judge Bayley's Order directed that the previously scheduled Sheriff's sale was stayed and subsequently released in order to permit the Defendant to sell property that was subject to execution. 3. The property was sold and the proceeds were directed to escrow in the control of John M. Smith, Esquire of Gingrich, Smith, Klingensmith & Dolan. 4. The Order also indicated that the monies are to be released from escrow upon written agreement or Final Order pursuant to litigation. 5. Both parties were directed to provide documentation to the other and if the parties were not in agreement at the end of October, they could petition for a hearing. 6. Both parties submitted documentation of the perceived balances due and owing to one another. {00209784/1} 7. David Fisher's deposition, which had been rescheduled due to Plaintiff's counsel's unavailability due to a hearing in another forum, was taken December 3, 2007 pursuant to a Notice of Deposition dated November 19, 2007. Plaintiff's counsel agreed to said deposition, and provided no objection to said Notice, even though no such provision existed in the Court's August 29, 2007 Order. 9. Defendant's counsel appears to believe that a preclusive discovery period exists as a result of the Court's Order. 10. Neither party has yet motioned for a hearing, although Plaintiff anticipates such a hearing will be necessary. 11. Plaintiff agreed to a deposition at the request of Defendant and was informed at said deposition, that no further information may be provided to document the Plaintiff's claim, and that the Court's Order expressly states such.' 12. Defendant has also indicated that it seeks immediate release of $300,000.00 and that based upon the documentation provided by the Plaintiff, should Plaintiff fail to agree to release such funds to the Defendant, it will pursue sanctions and various other remedies. Copies of Defendant's November 30, 2007 correspondence and Plaintiff's correspondence in response are attached hereto and incorporated as if more fully set forth herein as Exhibit "B." 13. Plaintiff does not wish to compromise the integrity of the Judicial Order which provided that lien payments were to be paid pursuant to judgment order and priority, especially in light of the request by the Defendant to release the $300,000.00 directly to the :Defendant. 1 Defendant relies upon its understanding of the Judicial Order, when at that very moment it is conducting a deposition it anticipates utilizing at a hearing to resolve the balances it disputes. 2 14. While Plaintiff believes its claim at present to be worth approximately Two Hundred and Forty Three Thousand Dollars ($243,000.00) if paid today, it is also aware that the amount held in escrow is approximately Five Hundred and Eighty Six Thousand Dollars (586,000.00). 15. Plaintiff has no objection to the release of Two Hundred Fifty Thousand Dollars ($250,000.00) provided it is paid out according to the lien structure that the Judicial Order contemplates. WHEREFORE, it is requested that this Honorable Court clarify its Order entered August 29, 2007, to provide that: a) Plaintiff may release $250,000.00 to Virginia Calabrese as the next subsequent lien holder, and retain the remainder of the balance in escrow should the parties still be forced to litigate; b) That this Honorable Court clarify the discovery schedule in order to avoid any further confusion; and c) That Plaintiff be permitted to provide supplemental discovery in light of the expansion of Defendant's assertion that the promissory note and calculations of outstanding balances are not sufficient to establish Plaintiff's claim. Respectfully submitted, CGA LAW FIRM Christian J. abb, Esquire Supreme Court I.D. 85370 135 North George Street York, PA 17401 717-848-4900 717-843-9039 fax Attorneys for Plaintiff HANOVER ASSOCIATES, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. CALABRESE & SONS, INC., DEFENDANT 04-3940 CIVIL TERM ORDER OF COURT AND NOW, this 2-P? day of August, 2007, this matter having been called on a petition of Calabrese & Sons, Inc., for a preliminary/special injunction, and the parties having reached an agreement to resolve the issue before the court today, IT IS ORDERED: (1) The Sheriff's sale scheduled for September 5, 2007, regarding the subject property, IS STAYED GENERALLY. (2) The scheduled settlement on the property shall proceed. Hanover Associates shall receive $50,000 of the proceeds at that settlement representing a partial payment of the amounts claimed by Hanover. (3) The net proceeds from the settlement shall be placed in escrow with the buyer's attorney. Those proceeds shall be released either upon a written agreement between the parties or after any final order following litigation. (4) The lien of the judgments and mortgages to be released as a result of the settlement on the property shall be paid in the same order from the escrow funds as they will no longer be liens against the property sold. (5) As to the dispute involving the total amount claimed by Hanover, Hanover shall provide to the opposing parties documentation of that amount not later than the 04-3940 CIVIL TERM end of September, 2007. Calabrese shall similarly respond not later than fifteen (15) days thereafter with documentation of the total amount it claims. (6) If the dispute as to the amounts claimed is not resolved by the end of October, 2007, either party may seek a hearing before this judge to resolve that issue. By theIG-Ourt, Edgar B. Bayley, J. Christian J. Dabb, Esquire For Plaintiff David A. Fitzsimons, Esquire John R. Fenstermacher, Esquire For Defendant John M. Smith, Esquire For Intervenor Sheriff sal -2- - I I - - o 10 : 1_T '.,-kR17S()N 717-243-1056 MARTSCk LAW OFF?C'ES ]-)EART)ORFF WILLIAMS OTTO GILROY MARTSON LAW OFFICES 10 FAST HIGH STHL'L-'T CARLISLE, PF_NNSyIAANIA 17013 TF•u-p H#.)Ns (717) 243-3341 F,vsrnm,i- (717) 243-1850 1\7B{NET wuwmarrsonlaw.cnm VIA FACS7t1'IILE 717-843-9039 Christian ,1. Dabb, Esquire COUNTESS GILBERT ANDREWS, PC 135 North George Street York, PA 17401 RE: Hanover Associates v. Calabrese & Sons, Inc. Our File No. 11093.2 Dear Mr. Dabb: RECEIVED NOV 3 0 2007 l 'l15 IS ', h;tCt'. In our- capac"v as corpora''e counsel for L a a.`IIC.` t' 1nC. 1 In(:cl Stan( That .1?,.1n i=ensterIn' 'iler has fon?a-dcd the mater als prwidec by ?"OU to James Soreltzcr. tic 2CCoun a:It 11-C pa?-Iies had previously agreed upon, for rc.vie,v' and :pinion or, the sufficie tcv C1 anovcr?s ocwnlentation. The documents provided do not re:llotcly support t11e continued escro«' ` h. n:, procccds of the Septelnbcr 5, 2007. la1.d sale. hc,",-; pro?.?ided cc of C Lill ). a1 *e ple5 sC ?z doct:melltatl )1 O: pcYl:tf ilty h; ;iC' Ii- :?Illd l.a;e been more Helpful and consistent with our agreement before. Judge Bayley If Hanoi er's suhrii ss;()n conta ned an identifiable number at issue with an accounting of the basis for ih11 figtir; 1I qUCSiiOnah yti-ucthat an, zmour.tovACd'-1anovtrF1s11Cr IS I"et iall;ab;? C , i a' t.'?c =il'.1tlLlTit CM-rClItly held In e5 OC by :? ?OII'.C) Jack 1 'I excecd the d ,c:Imcnted c1air,. _t n? . ?.. nt,V ati C1 C' ?l he i r'11u t0 1L'C ?.a.l dti r„ "IC'?IECI?i t' ll1;; 1 , ;t lb l,ial iI, C I T' V . j't : 1 c'-. a,'o:dar,ce oli the part of ? o;.r ., . ]lent a deposl':ol? ?l. as f-wally SC lie"; Iedi ')ut :lol". i'<< been 11os?;,el?e?l 'o December This situation is Intolerable fog C?l:bre:?? hecau; s ltr t ' i'p Cyll t(.r operations 11abi r, r ,I - I ?1e up :r. 'v1'.. S7I1I"l 's ?1: ac c1t to, r :ncnt?s n.1?e?. onab: <:...;cipatcc nl1 .1? St 2R. 1 t, R M k T I n 1) V I C E • WU-LIAm F M,,,RT'sol JOHN; B. FowTzit III DANJLL K. DEARDORFr THOMAS J. WiLLLAM$` Iw) ,,, OTTO III HL'BERT X Gu.ROY GEORcF B. FALLER JR.,v 'Bww Ctann6 PAGE 0i P2 FA LLEI DAVrD A. FITZSIMONS CHRISTOPHER E, RIcF JENNIFER L SPEARS SETH T. MusEBEN TAUT) E_ FEHUNCER KATrr. J. MA.XWT.L1- o Cnm TKI&L SreCIALIST November 30, 2007 ae, -243-185P, MAP'SON LH114 C'FFiCES PAGE ClL-istian J. Dabb, Esquire Novembe- 30. 2007 Page Your client's actions, aided and abetted by the CGA Firm. now bring into play the potential for sanctions pursuant to Pa. R.C.P. 1023, and suit for misuse and abuse of civil process, under the Dragonetti Act, 42 Pa. C.S.A. §8351 et seq. We therefore request and demand that you immediately authorize the release of $300,000.00 from the Escrow Account in order that serious and lasting damage to Calabrese be can avoided. Alternatively, given the obvious expense and potential uncertainty (to Hanover/Fisher) of the scheduled deposition and outcome of a hearing, I am instructed to offer for a strictly limited time period, an additional $20,000.00 in excess of the $559,000 already documented as received by Hanover in full and final settlement of all claims of Hanover Associates and David Fisher outstanding against Calabrese & Sons, Inc., its agents, and officers. Under either alternative, it is imperative that to avoid the potent' failure of Calabrese, and ial further action against Fisher, Hanover, its partners, and CGA, that funds be available to Calabre by December 5. se ill renia,n opal u:lt l the close c; bG mess i?r \lonLla,, D cc e.:2iber ?((j? at jid aid ,%c I: proceed W , itf] il.e C?cpo?:_.c?t a-,c: nlOv'C o sche:i"!';_ 11 ,?, avle?? ?p Vern [Rdy vw-Irs. OFTICI=S David A. F Tzs;;no:Is t: f ,,st,?nharll?r =sc di:e ::;:?1: - 7 7 T_, , Calabrese (t c :dC1? iI'l;; 7-69 -6?06) _16 -1 F it H \' .A f 1 ?? ,` • :1 D \' I C E 1 ;? p C a, C y I- A W I= I Ez M Christian J. Dabb, Attorney cdabb@cgalaw.com Ext. 152 December 3, 2007 VIA FACSIA,111,E 717-243-1850 David A. Fitzsimmons, Esquire Martson Law Offices Ew ? 10 East High St. ?`l,,'awl ,?,,? Carlisle, PA 17013 Re: Hanover Associates v. Calabrese and Sons, Inc. Your File 1] 093.2 ?* sn Dear Mr_ Fitzsimmons: VV y I reviewed your correspondence dated November 30, 2007, and we have now had the opportunity to discuss your position via telephone on Friday afternoon. It is my understanding that you appreciate my concern over a continued pattern of behavior by your client which raises demands and offers with deadlines that contemplate very short turnaround. I find it necessary to raise some points in response to your letter as well. While 1 appreciate your concerns, l am sure that Mr. Fisher does not agree that his claim lies somewhere less than ten percent of the total amount of the escrowed funds. I have forwarded your information to a third party accountant, to review your accounting. This was completed in November and I should have those available at the deposition, barring unforeseen delay. In addition, 1 do not concur that our actions constitute improper and vexatious conduct. Our conduct was specifically governed by the Judicial Order dated August 29, 2007 by Judge Bayley himself. Said Order was entered with your specific concurrence. At no time, did you indicate any concerns with regard to time or deadlines to ensure that a hearing was held prior to a date certain and that monies would be required to "keep Calabrese and Sons afloat". You had every opportunity at that time to act to ensure that the time frame was to your Client's preference. The issue with regard to discovery was contemplated at the original hearing date, and 1 would be hard pressed to believe that I am not permitted to run your accountant's numbers against a third party review of Mr. Fisher's numbers versus your accountant's. As I indicated to you by phone on Friday, 1 did so to ensure a reasonable resolution of remaining balance. Lastly, with regard to the deposition, there has been no egregious attempt to delay this deposition. We provided a date available to Mr. Fenstermacher when it became apparent that I would be called into another hearing and I did not want to fall prey to having to cancel the November 27, 2007 deposition at the last minute. If you must know, as I informed Mr. December 3, 2007 Page 2 Fenstermacher, I was required to appear before a Worker's Compensation Judge at the last minute, and I did not want Mr. Fenstermacher put out in terms of availability. Now, as l stated to you on Friday November 30, 2007, when you agreed to delay the deadline for this offer until December 5, 2007, I do not believe your request is untenable. I have spoken at length to Mr. Fisher and convinced him to agree to release Two Hundred and Fifty Thousand Dollars and 00/100 ($250,000.00), upon the following conditions: 1) We will obtain a judicial order providing the release, by going jointly to Judge Bayley together 1 believe his order will remain in effect, and I do not want to do anything outside his purview as it relates to this matter. 2) We will jointly notify and seek agreement from Virginia Calabrese that she consents to the release of these funds. My expectation is that she would expect these funds to be released to her as the next lien holder. Then she can determine whether the funds are properly released pursuant her lien and credit in her judgment is reflected for everyone down the line. I believe the Judge would concur that such an action is appropriate. 3) Since you and I both know that the remaining balance of the Hanover Confession of Judgment Note is far greater than the $20,000.00 you have offered, perhaps tender the $20,000.00 as consideration for the agreement to release assuming Virginia Calabrese agrees to the release of the $250,000.00 indicated above. I do not believe that the Judge will find such a resolution offensive to any and all parties, and will serve to protect everyone from any claims of misconduct in handling these escroxv funds. I would be willing to appear on at any time to accommodate a judicial order or conference. Please advise if this is amenable to you. Sincerely, Christian J. b cjd cc: Richard Stevenson, Esquire Mr. David Fisher CERTIFICATE OF SERVICE I hereby certify that on this 5th day of December 2007 that a true and correct copy of the foregoing Motion for Clarification has been served via facsimile and first-class mail, upon the following: David F. Fitzsimons, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 717-243-1850 John R. Fenstermacher, Esquire Fenstermacher and Associates, PC The Jonas Rupp House 5115 East Trindle Road Mechanicsburg, PA 17050 717-691-5441 John M. Coles, Esquire Rhoads & Sinon, LLP One South Market Square, 12th Floor PO Box 1146 Harrisburg, PA 17108-1146 717-252-1459 John M. Smith, Esquire Gingrich, Smith, Klingensmith & Dolan 222 South Market Street, Suite 201 PO Box 267 Elizabethtown, PA 17022 717-367-3219 CGA LAW FIRM Kat Teen H. Moyer, ara or Christian J. Dabb, Esquire 4 (_ _ ? r_T? ?`! i !.'? .. i"^e ...._? ? ? ? ?^:.: __ ' ?: ? _ .- __,.? T?? 1..:: i ? {i?. .. r ., ," , F:\FILES\Clients\ l 1093\1 1093.2.amendmenttomotion Created: 9/20/04 0:06PM Revised: 12/6/07 3:29PM David A. Fitzsimons, Esquire I.D. No. 41722 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant HANOVER ASSOCIATES, Plaintiff, v. CALABRESE & SONS, INC., Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-3940 CIVIL ACTION - LAW JURY TRIAL DEMANDED AMENDMENT TO MOTION FOR STATUS CONFERENCE AND NOW, comes Defendant, Calabrese & Sons, Inc., by and through its counsel, MARTSON LAW OFFICES, and hereby moves this Honorable Court to schedule a Status Conference in the above-referenced matter to address Plaintiff s Motion for Clarification, confer on developments in the case since August 28, 2007, and to set a hearing date and time, if required: 1. Counsel for Plaintiff concurs with this Motion. 2. This matter has been before the Honorable Edgar B. Bayley, President Judge, who has previously issued an Order in this matter. MARTSON LA OFFICES By David A. Fitzsimons, Esquire I.D. No. 41722 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: December 6, 2007 Attorneys for Defendant CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson Law Offices, hereby certify that a copy of the foregoing Amendment to Motion for Status Conference was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Christian J. Dabb, Esquire CGA Law Firm CGA Professional Center 135 North George Street York, PA 17401 MARTSON LAW OFFICES B6en a D. Eckenroad eet EastHigh Str 3 Carlisle, PA 17013 (717) 243-3341 Dated: December 6, 2007 t`} " 3 c` s G1 -77 - - W X DEC 0 6 2007 ,off HANOVER ASSOCIATES, Plaintiff, V. CALABRESE & SONS, INC., Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-3940 CIVIL ACTION - LAW JURY TRIAL DEMANDED ORDER AND NOW, this /A day of kQtV/k,&4 2007, upon consideration of the foregoing Motion for Status Conference, said Motion is hereby GRANTED; and A Status Conference is scheduled for I q , 2007, at ,. U p.m., in courtroom _ a _, at the Cumberland County Courthouse. cis I PS - , Dam to w d "? HANOVER ASSOCIATES, PLAINTIFF V. CALABRESE & SONS, INC., DEFENDANT AND NOW, this IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : 04-3940 CIVIL TERM ORDER OF COURT iq day of December, 2007, following a status conference and by agreement of the parties the following order is entered. The sum of $280,000 shall be released from the escrow currently held by Jack Smith, Esquire, to Virginia Calabrese. This amount constitutes partial payment of the judgment amount owed to Virginia Calabrese and does not waive any right to further amounts owed. The check shall be delivered to John Coles, Esquire, of Rhoads and Sinon, LLP, counsel for Virginia Calabrese. The parties further agree to the release from escrow of the sum of $15,355.70 to counsel for Calabrese & Sons, Inc., that being the amount reflected on line 1107 as attorney fees in the transaction dated September 5, 2007. By the Edgar B ,/hristian J. Dabb, Esquire For Plaintiff /D vid A. Fitzsimons, Esquire hn R. Fenstermacher, Esquire For Defendant /hn Smith, Esquire For Intervenor tephanie E. DiVittore, Esquire (For Virginia Calabrese) sal , J. ?- cep r V d r3- ? y I.1 ? U cv HANOVER ASSOCIATES, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. CALABRESE & SONS, INC., DEFENDANT 04-3940 CIVIL TERM ORDER OF COURT AND NOW, this day of December, 2007, IT IS ORDERED that a bench trial shall be conducted in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania at 8:45 a.m., Wednesday, January 9, 2008. All participants shall exchange copies of all written documents they will seek to introduce into evidence at this hearing and a list of all witnesses they will seek to call at this hearing not later than noon Friday, January 4, 2008. By the court , Edgar B. ayley, J. hristian J. Dabb, Esquire For Plaintiff XI id A. Fitzsimons, Esquire hn R. Fenstermacher, Esquire For Defendant John Smith, Esquire or intervenor /ephanie E. DiVittore, Esquire (For Virginia Calabrese) :sal A C%j 9 { 6 ts.. C) C3% F cra Q C-3 C 1 1 - CGA Law Firm Christian J. Dabb, Esquire Supreme Court I.D. No. 85370 135 N. George St. York, PA 17401 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION HANOVER ASSOCIATES, Plaintiff V. No. 04-3940 CALABRESE & SONS, INC., Defendant The Honorable Edgar B. Bayley MOTION IN LIMINE AND NOW, thiv?e?day of December, 2007, comes the Plaintiff, Hanover Associates, by and through its attorneys, Christian J. Dabb, Esquire, and CGA Law Firm, and files the following Motion in Limine for Pre-Trial ruling: Summary Statement of Facts and Procedural History Plaintiff, Hanover Associates entered a Confession of Judgment on August 10, 2004 against the Defendant, Calabrese and Sons, Inc. Said Confession of Judgment was tendered pursuant to authority provided in the Promissory Note entered into between the parties on June 7, 2004. Said Promissory note provided terms for default, which (00211449/1} negotiation of the outstanding balances by the end of October, and a timeframe was created by which the parties were to exchange their documentation. Admittedly, the Plaintiff was delayed in conveyance of the information it believed would adequately resolve the balances in question, by a single week. As a result of discussions between the parties, the Parties appeared before this Honorable Court to resolve discovery schedules and determine a date certain for hearing which was scheduled for January 9th, of 2007, and discovery was to be completed by January 4, 2007. A subsequent release of $280,000 was provided to the next subsequent lien holder, Virginia Calabrese who held a judgment in the amount of approximately Seven Hundred Thousand Dollars ($700,000.00).1 An additional $15,000.00 was agreed to by the Counsel for Plaintiff and Defendant as well as Counsel for Virginia Calabrese to cover legal fees. 1. MOTION TO PRECLUDE EVIDENCE PERTAINING TO UNDERLYING BASIS FOR CONFESSION OF JUDGMENT. a. Claim is based upon a valid judgment and a valid execution upon that judgment. Any claim involving dispute over a Confession of Judgment is governed by the Pennsylvania Rules of Civil Procedure 2950 et al. The Promissory Note that was executed between the parties retained authorization for the Confession of Judgment that was filed August 10, 2004. The Plaintiff filed a proper notice of Execution on real estate pursuant to Rule 2958.2. Defense Counsel has indicated that it intends to elicit evidence to challenge the underlying basis of the promissory note and subsequent judgment ' Noting that the Plaintiff was assigned a second Promissory Note from the holder, Sorrel Forge, wherein the holder assigned said note (in the amount of approximately $240,000, to the Plaintiff in exchange for $100,000.00 provided to the prior Holder. Said note is sixth on the priority list of judgments that upon information and belief of counsel remain unpaid to date. {00211449/1} between the parties that remains the subject of the current litigation. To date, Defendant has not filed any contest to the Confession of Judgment other than a Preliminary Injunction request filed by Attorney Fitzsimmons to prevent the execution upon the Sheriff's Sale which was scheduled for September. Pursuant to the Rules governing Confession of Judgment, specifically, 2959 (a)(3): Petition for Relief must be filed within thirty (30) days of the Notice of Execution pursuant to Rules 2956.1 and 2973.1. Furthermore, the explanatory note appended to Rule 2958.2 indicates that a Petition for Relief must be filed to contest said Confession of Judgment as indicated under Pa.R.C.P. 2959(a)(3). In the present case, the Defendant has not filed any pleading to date, other than the aforementioned Preliminary Injunction to Stay execution upon the real estate, there is no Petition for Relief that has been filed pursuant to the Rules. As a result the merits of the Confession of Judgment should not be addressed as indicated within Pa.R.C.P. 2959. The only issue that should be present before this Honorable Court should be the balance due and owing under the Confession of Judgment, and the applicable interest to said Judgment. Any reference to the underlying merits would result in extrapolation of an extraordinary remedy for the Defendant which would permit the Defendant to address the merits going back more than three years to prior to the date of the agreed upon Confession of Judgment and Promissory Note that presumably the Defendant had retained counsel and fully understood his rights when he agreed to file a Promissory Note in the aforementioned amount. To permit the Defendant to go back to address the underlying merits of a Confession of Judgment without ever filing a Petition for Relief within the proper time frame would be a violation of the Rules of Civil Procedure. {00211449/1} 11. Conclusion Wherefore, the Plaintiff respectfully requests that this Honorable Court preclude evidence pertaining to the underlying merits of the Judgment and Promissory Note and limit the present hearing to a determination of the outstanding balance as paid out by the Defendant and the propriety of interest as agreed by the Parties. Respectfully Submitted, .f 4 CGA La irm Christian J. Dabb, Esquire Supreme Ct. ID # 85370 135 N. George St. York, PA 17401 10021144911} • 11. i r CERTIFICATE OF SERVICE I hereby certify that on this 16h day of December 2007 that a true and correct copy of the foregoing Motion in Limine has been served via facsimile and first-class mail, upon the following: David F. Fitzsimons, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 717-243-1850 John R. Fenstermacher, Esquire Fenstermacher and Associates, PC The Jonas Rupp House 5115 East Trindle Road Mechanicsburg, PA 17050 717-691-5441 John M. Coles, Esquire Rhoads & Sinon, LLP One South Market Square, 12'' Floor PO Box 1146 Harrisburg, PA 17108-1146 717-252-1459 John M. Smith, Esquire Gingrich, Smith, Klingensmith & Dolan 222 South Market Street, Suite 201 PO Box 267 Elizabethtown, PA 17022 717-367-3219 CGA LAW FIRM C t' J. Dabb, Esquire 200211449/1} N r Z Z --l Wd H 33 OZ 311.41 -,'0 iii ' a -111 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLN'--.NL%, CIVIL DIVISION HANOVER ASSOCIATES, Plaintiff V. CALABRESE & SONS, INC., Defendant AND NOW, this day of No. 04-3940 The Honorable Edgar B, Bayley ORDER 2007/2008, upon consideration of Plaintiff's Motion in Limine, it is hereby ORDERED and DECREED that: Defendant is precluded from entering evidence concerning the merits of underlying basis for the Confession of Judgment that is the subject of the hearing scheduled for January 9, 2008. BY THE COURT: Aeea? +1A .11 wAo" 14- - J. vpt"i AAA aAA1,u {00209784/1} yc"a?adl'16? r? C? T J 117 QA M I F:\F1LES\Clients\l 1093\1 1093-2.pct1.wpd\tde Created: 9120104 0:06PM Revised: l n 108 11: 58AM 11093.11 Seth T. Mosebey, Esquire I.D. No. 203046 David A. Fitzsimons, Esquire I.D. No. 41722 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant HANOVER ASSOCIATES, IN THE COURT OF COMMON PLEAS OF Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2004-3940 CALABRESE & SONS, INC., CIVIL ACTION - LAW Defendant PETITION TO OPEN AND NOW, comes the Defendant, Calabrese & Sons, Inc., by and through their attorneys, MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, and files the following Petition to Open: 1. This Petition hereby incorporates Defendant's Response to Plaintiff's Motion in Limine filed on January 7, 2008, at this docket number. 2. On August 10, 2004, Plaintiff confessed judgment in the amount of $323,569.10, plus interest, against Defendant for breach of a Promissory Note dated June 7, 2004. 3. On June 15, 2006, Plaintiff and Defendant entered into an agreement whereby Plaintiff agreed that it would take no further action against Defendant, and Defendant confirmed its agreement to sell certain real estate to repay the remaining balance, if any, owed to Plaintiff under the Promissory Note. 4. Crucial to the above-referenced agreement was Plaintiff's agreement to provide documentation setting forth the basis for accurately calculating any remaining balance on the Promissory Note, and any and all other outstanding debts. 5. Plaintiff has persistently failed to provide documentation setting forth a basis for accurately calculating any remaining balance due under the Promissory Note. 6. Pennsylvania Rule of Civil Procedure 2959 states that a petition to open must be filed within 30 days of the Writ of Execution unless there were compelling reasons for the delay. 7. Plaintiff served a Writ of Execution on Defendant in June 2007. 8. From June 15, 2006, until January 4, 2008, when Defendant was served with Plaintiff's Motion in Limine, the parties continued to negotiate the balance due under the Promissory Note. 9. Even though the parties continued to negotiate the balance of the Promissory Note, pursuant to its Motion in Limine, Plaintiff now seeks to exclude over $250,000 paid from Defendant to Plaintiff in partial satisfaction of debts to Plaintiff represented by the Promissory Note. 10. Because Defendant had no reason to believe that Plaintiff was refusing to continue to negotiate in good faith the amount due under the confessed judgment until January 4, 2008, Defendant has demonstrated compelling reasons for its delay in filing this Petition to Open. WHEREFORE, Defendant respectfully requests that this Court issue an Order opening the confessed judgment entered on August 10, 2004, and permitting Defendant to introduce evidence contesting the amount due under the Promissory Note. MARTSON LAW OFFICES J, frf? By . Seth T. Mosebey, Esqu ire 12- I.D. No. 203046 David A. Fitzsimons, Esquire I.D. No. 41722 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant Date: January ?, 2008 VERIFICATION I, Joseph Calabrese, President of Calabrese & Sons, Inc., acknowledge I have the authority to execute this Verification on behalf of Calabrese & Sons, Inc., and certify the facts asserted in the foregoing document are true and correct to the best of my knowledge, information and belief. To the extent 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. § 4904. Calabrese & Sons, Inc. yJsephVCalabrese CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent for Martson Law Offices, hereby certify that a copy of the foregoing Defendant's Petition to Open was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: John R. Fenstermacher, Esquire Fenstermacher and Associates, P.C. The Jonas Rupp House 5115 East Trindle Road Mechanicsburg, PA 17050 Christian J. Dabb, Esquire CGA Law Firm CGA Professional Center 135 North George Street York, PA 17401 MARTSON LAW OFFICES By: AZ vt r (??) MV .Price Tet High Street Carlisle, PA 17013 (717) 243-3341 Dated: j ? 009? N C ~n CIL) '"'t A. r. F:\FIL.ES\Clients\ l 1093\1 1093.2.resl .wpd\tde Created: 9/20/04 0:06PM Revised: 1/7/08 0:07PM 11093.11 Seth T. Mosebey, Esquire I.D. No. 203046 David A. Fitzsimons, Esquire I.D. No. 41722 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant HANOVER ASSOCIATES, Plaintiff, V. CALABRESE & SONS, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2004-3940 CIVIL ACTION - LAW RESPONSE TO PLAINTIFF'S MOTION IN LIMINE AND NOW, comes the Defendant, Calabrese & Sons, Inc., by and through their attorneys, MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, and files the following response to Plaintiff's Motion in Limine: FACTS This dispute arises from the valuation and disposition of funds invested in or loaned to Calabrese & Sons, Inc., by David Fisher ("Fisher"), the general partner of Plaintiff, Hanover Associates ("Plaintiff'), on his behalf or on behalf of the general partnership. During the 2002 calendar year, Mr. Fisher, an acquaintance of Joseph Calabrese ("Calabrese"), the president of Calabrese & Sons, Inc. ("Defendant"), became associated with the company in a self-described role as "comptroller" or "chief financial officer" of the company. In essence, Fisher and Calabrese agreed, in Fisher's words, that Calabrese was to obtain contracts and Fisher would take care of the financing. Calabrese & Sons, Inc., is a family owned job shop machine shop located in Mechanicsburg, Pennsylvania since the early 1905 s, which currently performs the production of military specification a parts for the United States Navy and also, at this juncture, produces privately ordered parts in the private commercial arena. At the time that Fisher became involved with Calabrese, the company was struggling to overcome upheavals in the private commercial market, as well as operational changes occurring in the military procurement field. Under-capitalized and waiting to reestablish its place in the market, Defendant was in need of investments of the type offered by Fisher on behalf of Plaintiff. By early 2005, the working relationship between Calabrese and Fisher had deteriorated to the point that Fisher was no longer making his daily visits to the Calabrese facility; however, between 2002 and 2005, for a considerable period of time Fisher in effect did operate as the chief financial officer of Calabrese and had control of the accounting systems and employees at Defendant. In December of 2005, Fisher and his counsel, Calabrese and Defendant's counsel met in an attempt to identify and accurately account for outstanding funds owed to Plaintiff in particular in relation to certain Notes on file in the Office of the Cumberland County Prothonotary. From that time frame to the present, it has consistently been Defendant's stated goal and intent to repay Plaintiff and Fisher the full amount of any amounts they are owed. However, Fisher's actual control of the financial accounting systems at Defendant for a significant time frame created impediments to Defendant's ability to accurately measure the final figures owed to Fisher. In July of 2006, Defendant entered into a Sale Lease Back transaction for the property on which its manufacturing plant is located and as part of that transaction, Plaintiff/Fisher received $250,000.00 towards the amounts acknowledged owed by Defendant to Plaintiff/Fisher and a letter agreement was entered into stating the parties' intent to exchange information and to finance the final payoff of Plaintiff/Fisher. A sale of a contiguous piece of land upon which Defendant does not maintain any manufacturing facility was expected, but it did not occur as originally anticipated by the close of the 2006 calendar yea, however, Plaintiff/Fisher failed to provide any of the requested and required documentation of the full debt owed to Plaintiff/Fisher during that time frame. In late August of 2007, the sale of the Hampden Township tract contiguous to the Mechanicsburg manufacturing site was finally consummated. By that time, Plaintiff/Fisher who were represented by their current counsel, had filed an execution, in June, upon one of the Notes which Defendant and Plaintiff had agreed to negotiate in the summer of 2006. It is important to note that throughout that time frame until service on Friday, January 4, 2008, of Motions in Limine that Defendant and Plaintiff had always understood and demonstrated in writing between each other that the key to resolving the final debt owed to Plaintiff/Fisher was to include an accounting of all funds paid to Defendant by Plaintiff/Fisher, in addition to all funds received by Plaintiff/Fisher from Defendant. Plaintiff now seeks to preclude any testimony by Defendant of monies actually paid to Plaintiff/Fisher during the requisite time frame on the grounds that the Note upon which this action is based should be read in a vacuum, ignoring the circumstances of the relationship between the parties and their agreements since that Note was filed, and prior to execution of the Note and most importantly, subsequent to execution of the Note. Upon representations made by both sides to this Court in late August of 2006, the Court entered into an Order which in effect confirms the acknowledgment of both parties, providing an accurate accounting be made of monies paid in and out of Defendant before an accurate calculation of final balances owed can be completed. On August 10, 2004, Plaintiff confessed judgment in the amount of $323,569.10, plus interest, against Defendant for breach of a Promissory Note dated June 7, 2004. Defendant disputed Plaintiff's calculation of the balance owed under the Promissory Note. On or about June 15, 2006, Plaintiff and Defendant entered into an agreement whereby Plaintiff agreed that it would take no further action against Defendant, and Defendant agreed that it would sell certain real estate ("New Lot 1 ") to repay the remaining balance, if any, owed to Plaintiff under the Promissory Note. A copy of this agreement is attached hereto and incorporated as Exhibit "A." Pursuant to the above-referenced agreement, Defendant also paid $250,000.00 to Plaintiff in partial satisfaction of the judgment, and Plaintiff agreed to provide documentation providing the basis for accurately calculating any remaining balance on the Promissory Note. From June 15, 2006, through August 23, 2007, and despite repeated requests from Defendant, Plaintiff failed to provide documentation providing a basis for accurately calculating any remaining balance due under the Promissory Note. During that time, the parties continued to engage in negotiations regarding the amount due under the Promissory Note. Copies of correspondence confirming these negotiations are attached hereto and incorporated as Exhibit "B." Despite the negotiations between the parties, Plaintiff filed a Praecipe for Writ of Execution on June 6, 2007. The parties continued to negotiate the balance of the Promissory Note. On August 23, 2007, Defendant filed a Motion for Preliminary or Special Injunction to set aside a scheduled sheriff's sale of New Lot 1 and to request a hearing regarding the amount Plaintiff was owed under the confessed judgment. On August 29, 2007, the parties reached an agreement with this Court regarding Defendant's Motion. The scheduled Sheriff's Sale was set aside to permit Defendant to complete the sale of New Lot 1, and the proceeds of the sale of New Lot 1 were placed into escrow pending resolution of the dispute between the parties regarding the balance of the Promissory Note. In the Order of Court, this Court set forth a procedure for the parties determine the balance of the Promissory Note. The parties eventually exchanged documentation and now seek a determination of the balance of the Promissory Note from this Court. ARGUMENT 1. Defendant Should Be Permitted to Introduce Proof of Payments Made to Plaintiff to Reduce the Balance of the Promissory Note Pennsylvania Rule of Civil Procedure 2959 governs the procedure for striking or opening a confessed judgment. "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." Pa. R. Civ. P. 2959(a)(3). "A challenge to the accuracy of the amounts allegedly due under [an] instrument, or an error in computation, should be resolved in a petition to open unless it is evident from the face of the instrument that the amount is grossly excessive or not authorized by the warrant to confess judgment." Germantown Say. Bank v. Talacki, 657 A.2d 1285, 1291 (Pa. Super. 1995). "A petition to open judgment is an appeal to the equitable powers of the court." PNC Bank v. Kerr, 802 A.2d 634, 638 (Pa. Super. 2002). A court acting in equity should open a confessed judgment "only when the petitioner `acts promptly, alleges a meritorious defense and presents sufficient evidence of that defense to require submission of the issues to the jury. "' Id. (quoting First Seneca Bank & Trust Co. v. Laurel Mountain Development Cora., 485 A.2d 1086, 1088 (Pa. 1984).) A prima facie showing of entitlement to open a confessed judgment first requires a demonstration that the petition to open was timely filed. Pursuant to Pennsylvania Rule of Civil Procedure 2959, a petition to open must be filed within thirty days of service of the notice of execution. A longer period is permitted if the defendant demonstrates that there were compelling reasons for the delay in filing the petition. Pa. R. Civ. P. 2959(a)(3). Second, a petitioner must allege a meritorious defense. In the instant case, two defenses are applicable. First, "[a] party may open a confessed judgment on the basis of compliance with a later collateral or modified agreement between the parties." PNC Bank, 802 A.2d at 641. Second, allegations that the complaint in confession of judgment contains inaccurate figures provides a meritorious defense. See Allied Building Products Corp. v. Delco Roofing Co.. Inc., 951 F. Supp. 1183, 1192 (E.D. Pa. 1996). Finally, in order to prevail on a petition to open, a petitioner must present sufficient evidence of its meritorious defense to require submission of the issue to a jury. PNC Bank, 802 A.2d at 638. Based upon both statutory and case law, Defendant should be able to contest the amount due under the confessed judgment. As discussed above, in order to show entitlement to open the confessed judgment, Defendant will need to (1) prove that its petition to open was timely filed, (2) raise a meritorious defense and (3) allege sufficient evidence to submit the issue to a jury. A. Defendant timely filed a petition to open the confessed judgment. On August 23, 2007, Defendant filed a Motion for Preliminary or Special Injunction wherein Defendant requested a hearing to determine the amount Plaintiff was owed under the confessed judgment. As stated by the Superior Court in Cohen v. Jenkintown Cab Co., 446 A.2d 1284, 1289 fn. 8 (Pa. Super. 1982), "the specific terms of the petition control over an erroneous use of nomenclature." Consequently, even though the Motion in the instant case was correctly termed a Motion for an Injunction, by its terms, it was also a petition to open the confessed judgment. As memorialized in this Court's Order of August 29, 2007, Plaintiff agreed to open the judgment by virtue of reaching an agreement before this Court. Pursuant to the Order in order to resolve the dispute involving the amount claimed by Plaintiff, Plaintiff was required to submit documentation of the balance of the Promissory Note to Defendant by the end of September 2007. Finally, even though Defendant believes that it is a matter of form over substance, Defendant has concurrently filed a Petition to Open with this Response. In addition to proving that it filed a petition to open, Defendant must also demonstrate compelling reasons for filing its petition more than 30 days after service of the Writ of Execution. As evidenced by correspondence between the parties, Plaintiff and Defendant continued to negotiate the balance of the Promissory Note even after the Writ of Execution was served. As a result, Defendant continued to believe that Plaintiff was willing to credit payments which were made by Defendant. Additionally, Plaintiff acquiesced in the timeliness of Defendant's petition by virtue of its failure to contest the issue of timeliness at the call of Defendant's petition on August 29, 2007. B. Defendant has alleged a meritorious defense. After establishing that Defendant's petition to open was timely, Defendant must next allege a meritorious defense. As discussed above, Defendant may assert two meritorious defenses to the confessed judgment. First, Defendant contends that the confessed judgment contains inaccurate figures. In other words, in the period since the judgment was confessed, Calabrese has made several payments to Plaintiff in partial satisfaction of the confessed judgment, and Plaintiff has failed to credit these payment to Defendant. Second, Defendant failed to comply with a collateral agreement regarding the balance of the Promissory Note. As evidenced by correspondence from Robert Chernicoff, Esquire dated June 15, 2006, the parties entered into an agreement in which the amount owed to Plaintiff would be determined through a process whereby the parties would submit documentation of the balance of the Promissory Note to an independent accountant who would review the figures and determine an amount owed to Plaintiff. Plaintiff failed to comply with this agreement by failing to provide its documentation of the amount owed. C. Defendant submitted sufficient evidence of its defense to require submission of the issue to a jury. Finally, in order to prove that it is entitled to open the confessed judgment, Defendant must present sufficient evidence of its defense to require submission of the issue to a jury. Attached hereto is documentation of the parties' continued negotiation of the amount due and the June 15, 2006 agreement to exchange documentation of the amounts due under the confessed judgment. Additionally, Defendant previously provided documentation to Plaintiff setting for the amounts Defendant paid to Plaintiff in satisfaction of the Promissory Note. CONCLUSION Because Defendant has set forth a prima facie case of entitlement to open the confessed judgment, Defendant should be able to present evidence regarding payments made in partial satisfaction of the confessed judgment. In fact, Plaintiff's own Motion in Limine states that "[t]he only issue that should be present before this Honorable Court should be the balance due and owing under the Confession of Judgment, and the applicable interest to said Judgment." As a result, Plaintiff's Motion in Limine should be denied. FENSTERMACHER & ASSOCIATES, P.C. MARTSON LAW OFFICES John R. Fenstermacher, Esquire The Jonas Rupp House 5115 East Trindle Road Mechanicsburg, PA 17050 By , E CJ , Seth T. Mosebey, Esquire I.D. No. 203046 David A. Fitzsimons, Esquire I.D. No. 41722 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant Date: January 7, 2008 `CRDAN D C!.'NN'1iGHA.`1 CL'N ItiGHAM & CHERtiICOFF, P.C. RC3ERT E. CHERNICOFF ATTORNEYS AT LAW MA 2C 'I IV ['Z% 7RLCE,. riAZSHAWSKY P.O. BOX 61457 CHN M. HYA.MS HARRISBURG, PE\NSYL'VA\IA 17106-0457 ,,ELLy M. KNIGHr TEI-E?HCNE ':""38-637J FAX 17:7: 233-4509 June 15, 2006 VIA FAX 730-736 & REGULAR MAIL David A. Fitzsimons, Esquire c, o David W. Reager, Esquire Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011-4642 RE: David Fisher/ Calabrese & Sons C&C File No. 901305 Dear David: HERSHt`r Tc: E?? ttr `. i "ZS NO. L'-2_ 4-5 3rert =farnsburj, RN This letter is to confirm the understanding which was reached on the telephone. The terms are as follows: 1) At closing today, Mr. Fisher will receive the sum of $250,000, In exchange, he will provide a release ofhis mortgage and judgments (the "Liens'l which he holds against the Calabrese & Sons property. 2) The Liens will remain of record as to the remaining real property and as to any other assets of Calabrese. Mr. Fisher shall have a first lien position on the remaining real property of Calabrese. 3) The first lien position shall be confirmed by an up to date title search which you will supply. 4) The balance ?x-hich is oNved to dir. Fisher shall be determined by a process %t hereby ,? c f..uties %c i it a3ee on an ln, ependent accountant «ho u tl l review the r.gares with Mfr. Fisher, Ntr. t=3 abre;e ir.d iuch counsel is are necessary'. In 'he a%ent that'he parties ire i,nab e to .:free at -hat ,`?`lii[, a:C ,li.;C'J'.illl tl'ht'.C lllU(nlt'.Q'i!cuiltl.?C] or l dec:.lrahcry;u?gment lction'% Ili 11'e t-,Icj !n the Apprcpn.ite Ccurr )f Common Pleas. EXHIBIT "A" CUN ItiGHA.V & CHERNICOFF, P.C. ATTCR\EYS AT LAW David W. Reager, Esquire June 15, 2006 Page 2 5) For purposes of payments only, Mr. Fisher shall be deemed to have the sum of $400,000 still owed to him as to the amounts owed under the two Votes and secured by the mortgage and judgments (the "Temporary Amounel. In the event the amount owed under the two (2) dotes is determined to be other than the Temporary Amount, such Temporary Amount shall be adjusted based upon the process set forth above. Interest will accrue on the Temporary Amount at the rate of prime plus 20/e. Monthly payments beginning July 1, 2006 shall be made to Mr. Fisher in the amount of $5,000 per month to be applied first to the interest at the rate of prime plus 2% on the unpaid balance of the Temporary Amount with the balance after payment to be applied to the principal on the Temporary Amount. 6) Closing on the sale of the remaining real property of Calabrese shall be by December 31, 2006 or default shall occur. If the foregoing is acceptable, please counter sign this letter on behalf of your client and return to me. You may inform the title company who is performing the closing that we will execute, appropriate releases. I assume that they will provide me with a Release of Liens as are necessary for my review. If I need to prepare same, please let me know. Sincerely yours, CUNNINGHAM & CHERNICOFF, P.C. Robert E. Cbemicoff REC. lbd cc: David Fisher ` i 'ti a,. c Tc,id 3r Ie the ft ,z_Oing. David A. Fitzsimons, Esquire FENSTERMACHER AND ASSOCIATES, P.C. ATTORNEYS AND COUNSELORS AT LAW JOHN R. FENSTERMACHER DIRECT DIAL (717) 691-5420 Christian J. Dabb, Esquire Countess Gilbert Andrews, PC 135 North George Street York, PA 17401 *MEMBER PENNSYLVANIA AND March 23, 2007 NEW JERSEY BAR RE: Fisher - Calabrese and Sons, Inc. Dear Christian: I received your correspondence regarding the Assignments you provided to me. I assume you are aware that these amounts that are due under these contracts are already included in the amount of the judgment that has been placed against my client by your client. Apparently your client now seeks to recover under some other legal theory under these Assignments, however, I view it as a complete duplication. Candidly his actions appear to be merely to institute vexatious litigation. My assumption, based upon your current correspondence, is that your client is not going to provide any documentation to the accountant that we have retained to evaluate the amount that is actually due and owing him. That is completely contrary to the agreement that was reached with his previous counsel which resulted in him receiving $250,000.00 last May. If your client is concerned he does not have documentation to support his position, then we will litigate that issue. I suggest that the easiest way to resolve this matter is that you provide all documentation your client has for the obligations that are owed to Mr. Smeltzer and we will do likewise. I know that Mr. Smeltzer will address the matter on as prompt a basis as possible. As to your statement about the rezoning of the property, on the date that you mentioned, there was no meeting of the Hampden Township Zoning Board. I am enclosing a Hampden Township Newsletter which indicates on Page 2 that the parcel of ground was rezoned from Industrial General to Apartment Office Limited in February. At the present time, land development plans are being prepared for submission to the Township. There is no obligation under the Municipalities Planning Code or Hampden Township ordinances that someone notify the township any time they were going to sell a piece of property. Your statement regarding them having a lack of knowledge is correct. However the simple reason is that the township does not concern itself with the sale of property, but merely the approval of improvements to the property. PLEASE RESPOND TO: MECHANICSBURG OFFICE: THE JONAS RUPP HOUSE (717) 691-5400 5115 EAST TRINDLE ROAD FAX (717) 691-5441 MECHANICSBURG, PENNSYLVANIA 17050 www.fenstermacherandassociates.com johnC fenstermacherandassociates.com EXHIBIT "B" OCEAN CITY OFFICE: 26 BAY AVENUE OCEAN CITY, NJ 08226 (609) 391-9461 WC JONAd RUPP NOUM I wanted also to advise you that we are meeting with the purchaser of the property on Tuesday to discuss the land development approvals and ultimate settlement. Please advise if and when your client is going to provide the information to Mr. Smeltzer so that we can determine our legal options. Thank you. Very truly yours, FENSTERMFAGHER AND ASSOCIATES, P.C. John R. Fenstermacher rac cc: Calabrese and Sons, Inc. David Fitzsimons, Esq. '08/14/2007 14:57 7176915441 FENSTERMACHER&ASSOC. PAGE 16 L A W F I R M Caurttes CAM Anercm, PC Christian J. 03bb. Attorney cd2bb4Dwataw.com Ext. 152 March 27, 2007 John R. Fenstermacher, Esquire Fenstermacher and Associates, PC The Jonas Rupp House 5115 East Trindle Road Mechanicsburg, PA 17050 Re: FIsher v. Calabrese and Sons, Inc. No. 2007-SU-534-YOI Dear Mr. Fenstermacher: I appreciate your update with regard to the status of the sale of the property. Based upon the information you have given me concerning the land development, I do anticipate that our client will review the information you provided. We do have the ability to move forward with this accountant. He has indicated that he is okay with this accountant at the present time, his concern, however, remains the time frame in which this gets completed. I have the information available to provide to Mr. Srneltzer, as soon as possible, and I would like to know what you anticipate your anticipate your time frame would be with regard to said information. As for the statement regarding the rezoning of the property, I can indicate that my client attended a Hampton Township meeting. Whether it was a zoning meeting or not, I am not sure but I can assure you that no discussion of the sale of the property has taken place. I did advise my client that notification of sale is not necessary, however, your indication with regard to the rezoning of the property would satisfy the concern that was earlier raised. As far as the agreement that was reached with previous counsel, it resulted in a receipt of two hundred fifty thousand ($250,000.00) dollars last May, that agreement was contingent upon the property being sold by December 31, 2007. Our client has been very accommodating in light of default of that agreement. I do not disagree with the easiest way to resolve this matter is to provide documentation with regard to obligations owed to Mr. Smeltzer and we will do that immediately. Again, I appreciate your anticipated cooperation and I look to resolve this as quickly as possible in ?ight,saf tltta that we are currently experiencing. ,00t1"sO„} MAR 2 9 2007 M i lfL?? t 4.; 7z.,'.'1t ---_------ CGA Law Firm, CGA Professionat Center 135 N. Gcorge St, eet, York, PA 17401, 717.848.4900, Fax 717.843.9039, www.cgalaw.com 08/14/2007 14:57 7176915441 FENSTERMACHER&ASSOC. Marcli 27, 2007 Page 2 Based upon your information, I wil l review with my client and discuss it with him but we anticipate forwarding the information immediately. Sincerely, Christian J. abb CJD/jaw cc: David Fisher - I P-1- 3 1?/z PAGE 17 ?00!1*63W1i 1 •' _ i ? ? 1 I ? i ? ) ;? E. ?. 4s,? ? I ? ? ? .? ?I -1 ?. I ( ? ) ?? T i ?? l ) `7? ?? i ? ?'. i?i MA"PTSON LAW OFFICES 10 EAST HIUH S"I RLE'r C\LM-1,14- PLVNSFP \1411 1-013 TFLFPHO)VF ('17) '43-3341 FA(-SIM1I.E ('1') ?43-WO IMYPN'F.r WWW.lnartsOnlaw.Com VIA FACSIMILE 843-9039 Christian J. Dabb, Esquire Countess Gilbert Andrews, PC 135 North George Street York, PA 17401 ; )[LUA,m F. `iARF C)N JOHN B.FowiERIII D.1MEL K. DEARLN)RFF TE'IOSEAS I. U I IA,YES` 1voVO'noIII WBER'rX. GILROY (,f uqt,;E B. F\1LLRJR.` C uu C. RES(-H Rw(n A. Fn'ZS1.%1ONS (.HRISr(-)PHER E. RECE JENMF'ER L. SPEARS Nbl+4\EL J. COLLINS SL 1H T 1k1,1 3F:r Ho?iu? l': uriF?cn C'rvu T;?iu Srecu!.rr March 28, 2007 RE: Calabrese & Sons, Inc. - Fisher Our File No. 11093.2 Dear Christian: I have been advised by my client that David Fisher is approaching business associates of Calabrese & Sons in the local area claiming that he is attempting to collect monies owed to him by Calabrese. Apparently, Mr. Fisher is not choosing to share with these commercial contacts of Calabrese that he received $250,000.00 in payment less than one year ago, and that there is a written Agreement in place relating to the calculation of amounts further owed, if any, and that they are secured by a mortgage on property owned by Calabrese. Apparently, Mr. Fisher is also not sharing with these individuals that he has to date failed to supply any of the documentation which he agreed to provide through his prior counsel in July 2006, and which would be quickly forwarded to an accountant who was jointly retained. Obviously, if it is true that your client is making such material misrepresentations about Calabrese in the market place, it raises serious concerns about the viability of Mr. Fisher's claims and the credibility of your efforts on his behalf to help us resolve any outstanding matters. Please contact me after your receipt of this letter to advise how you are going to press upon your client the importance of proceeding through the process that my client, in good faith, entered into in an attempt to resolve Ivir. Fisher's claims. Very truly yours, MARTSON DEARDORFF WILLIA.MS & OTTO David A. Fitzsimons DAF,%tde cc: John R. Fenstermacher, Esquire (via facsimile 717-691-5441) Mr. Joseph Calabrese (via facsimile 717-697-6506) F'FILES' DATAFILE.Gentr?CCurrrnf I1093kl 1093 2 Al I N r 0 a tit A F I O V • A D V I C E • A D V o i' A rr v FENSTERMACHER AND ASSOCIATES, P.C. ATTORNEYS AND COUNSELORS AT LAW JOHN R. FENSTERMACHER *MEMBER PENNSYLVANIA AND DIRECT DIAL (717) 691-5420 July 11, 2007 NEW JERSEY BAR VIA FACSIMILE:, 843-9039 Christian J. Dabb, Esquire Countess Gilbert Andrews, PC 135 North George Street York, PA 17401 RE: Fisher - Calabrese and Sons, Inc. Dear Chris: As you are aware, I have represented Mr. Calabrese and Calabrese and Sons, Inc. with regard to your client, Hanover Associates. Despite this fact, you have forwarded documentation and service of process upon them without whatsoever contacting my office. I ask that these actions immediately stop. On a related matter, settlement on the property is scheduled for July 30, 2007 and unless we have our issues resolved by that time, we will be unable to convey the property and your client will not receive any proceeds from the sale. Inasmuch as your client has failed to provide any documentation of this alleged obligation, I think it would be incumbent upon us to try to resolve that so that your client might receive appropriate compensation and all these matters terminated. The filing of additional legal actions is unnecessary and counterproductive to what our original intentions. I ask you to contact me as soon as possible so that we might decide whether we are going to close on July 30, 2007. Thank you. Very truly yours, FENSTERMACHER AND ASSOCIATES, P.C. SY' John R. Fenstermacher .1 rac cc: Calabrese and Sons, Inc. David A. Fitzsimons, Esquire PLEASE RESPOND TO: MECHANICSBURG OFFICE: OCEAN CITY OFFICE: THE JONAS RUPP HOUSE (717) 691-5400 26 BAY AVENUE 5115 EAST TRINDLE ROAD FAX (717) 691.5441 OCEAN CITY, NJ 08226 MECHANICSBURG. PENNSYLVANIA 17050 www.fenstermacherandassociates.com (609) 391-9461 john@fenstermacherandassociates. com THE JON& RUPP HOUSE SSpC .08/14/2007 14:57 7176915e"1_ 4 A W F I R M FENSTERMACHER&A .+.7 L,h,w r I? M OhA$ l n 102W Att"ey cdat?caaiaw.=r ? +s2 July 30, 2007 VIA FACSZ ULE 717-691-5441 Tohn R. Fenstemxachcr, Esquire Fenstermarher and Associates, PC Site Jones Rupp Douse 5115 East Trindle Road Mechanicsburg, PA 17050 Re' Hanover Associates V. Calabrese & Sons Dear john: PAGE 04 PACE 02/11 Please find attached the spread sheets ixxdicadng the total anmows outstaadfng on the claims that Hanover Associates has with Calabrese & Sons, As you can see, them we several pages that indicated the total amounts outstanding for the judgment actions, as well as the accounts receivable for the contract advances that Nled to take place and the egWpmm t leases. The confession for judgment action is what is scheduled to be execated upm at the pment time, and %a ar=mts receivable Wormation attached includes interest that has accumulated. A bteakdown of this information attached is as follows: Page 1 Judgment - Confession $429,488,30 Interest for the balances of all maths that are $116,210.05 currently Outsm"ding Outstanding equipment lease $ 63,000.00 Professiaral fees $ 16,440.00 Contract advances 4 8 . TQTAr, (less interest from 8/2006.-present) $720,023.35 Interest calculated oa overdue balances would add an additional 5108,887,05. Sce, page 8. xo M"111 CGA Law Firm, CGA, Professions! Center, 135 N. George Street, York, PA 17401, 717.843,4900, Fax 717.843.9039, wwwegalaw corm . 08/14/2007 14:57 Page 2 71769151* 41 FENSTERMACHER&ASSOC. saes i_Fiw r- IKM PAGE 05 PAGE 03/11 Pleasc advise me of your inlet with regarding to the closing cntrcntly srbeduled to take place thuis aftemovn, Very tzul yVtuaa Christi. abh CmAdIM taulig"On r 717 697 6506 FENSTERMACHER AND ASSOCIATES, P.C. ATTORNEYS AND COUNSELORS AT LAW V ' 25 p.m. 08-14-2007 1 11 ME JORA1' RUPP 1109SE JOHN R. FENSTERMACHER •MEMEER PENNSYLVANIA AND DIRECT DIAL 17171691-5420 August 2, 2007 NEW JERSEY BAR VIA FACSIMILE: 843-9039 Christian J. Dabb, Esquire Countess Gilbert Andrews, PC 135 North George Street York, PA 17401 RE: Fisher - Calabrese and Sons, Inc. Dear Chris: This will confirm our various telephone conversations during which i requested that you provide me documentation of the advances that were made by your client to Calabrese and Sons, Inc. The only things that have been provided to date is his own ledger that he prepared without any substantiation as to the contributions that he allegedly made. Additionally, there is interest being added but there exists no agreement between Calabrese and him as to the interest calculations. Your client has taken in excess of $400,000.00 out of Calabrese and Sons, Inc.'s operation in addition to the funds that he says are allegedly due him. The question is can your client provide any proof that he has provided that contribution? Additionally, it has been indicated to me that he made the previous bookkeeper at Calabrese and Sons, Inc. make entries in their journals without providing any backup as to any contribution he made In other words, he had journal entries made showing money due to him but not providing them any backup or information as to why it was due him, when he contributed the funds and why he was being paid interest on the obligation. I believe that it would be beneficial to sit down and try to review any such documents once you provide it t9 us. Please contact me as soon as possible so that we might try to resolve this matter. Otherwise, we will inevitably lose the sale of the property that was to have occurred on Monday. Very truly yours, FENSTERMACHER AND ASSOCIATES, P.C. John R. Fenstermacher rac cc, Calabrese and Sons, Inc. PLEASE RESPOND TO: MECHANICSBURG OFFICE: OCEAN CITY OFFICE: THE JONAS RUPP HOUSE (717) 691-5400 26 SAY AVENUE 5115 EAST TRINDLE ROAD FAX (717) 691-5441 OCEAN CITY NJ 08226 MECHANICSBURG. PENNSYLVANIA 17050 www.fgnstermacherandassociates.com (609) 391-9461 ohnefenstermacherandassociates.com MA-PTSON LAW OFFICES ill B! In \. D V 1'. T t, Its F, T Mn A.l S-I-r,:: 'r T, t_I r- ,,r' -1- X43-V)41 Fysimlu .-1-; 2-1z-1»511 N-1-1 RM I' August 15, 2007 VIA FACSIMILE 717-843-9039 and CERTIFIED MAIL Christian J. Dabb, Esquire Countess Gilbert Andrews, PC 135 North George Street York, PA 17401 RE: Calabrese & Sons, Inc. - Fisher Our File No. 11093.2 Dear Christian: I apologize for the urgency and tone of this correspondence, but it appears we are left with no acceptable alternative. As you know, we represent Calabrese & Sons, Inc., as corporate counsel and John Fenstermacher, Esquire, of Fenstermacher and Associates PC, has been attempting to obtain proper documentation to allow calculation of a mutually agreeable payoff due to your client, Hanover Associates, for the Promissory Note dated June 7, 2004, and consistent with the Agreement between the parties negotiated when Bob Chernicoff represented Hanover, and subsequently during your tenure as Hanover's counsel. However, to date and after numerous attempts by both our law office and the law office of Fenstermacher and Associates, P.C., you have been unable to provide us with that documentation. This is further complicated by your clients failure to recognize the substantial payment it received from Calabrese last year in its already inflated calculations. On August, 10, 2004, judgment was confessed against Calabrese in the Court of Common Pleas of Cumberland County, Pennsylvania, docket number 2004 CV 3940 by Hanover Associates for breach of the Promissory Note. Thereafter, Calabrese took action to pay your client back, including listing the property in question for sale. On or about June 27, 2006, a Judgment Release was filed by Hanover Associates releasing New Lot 2 in return for partial satisfaction of the judgment. At that time, Calabrese paid $250,000 to your client for said return. As further agreement for the payment of $250,000, Hanover Associates agreed it would take no further action against Calabrese and Calabrese would sell New Lot 1 to repay, among others, the IN' FORMATION - .ADVICE - .ADVOr,AC`' Christian J. Dabb, Esquire August 15, 2007 Page 2 remaining balance owed to Hanover Associates. Virginia Calabrese, also a creditor of the company, agreed to take a subordinate position to Hanover in the context of this effort. Vital to that agreement was Hanover's agreement to provide documentation providing the basis for its unsubstantiated total claim. Over a year later, you have been unable or unwilling to provide any such documentation on behalf of Hanover. The original sale date of New Lot 1 was to occur on or about December 2006; however, the sale did not occur partly because of your client's failure to cooperate. Frankly, we can only surmise that Mr. Chernicoff s removal from the mix relates to Hanover's willful failure to honor the agreement made last year. On June 6, 2007, you filed a Writ of Execution on behalf of your client and against Calabrese for the sale of New Lot 1 at the Sheriffs Sale on September 5, 2007. This action appears maliciously designed to "scuttle" the pending sale and ignores the agreement made in June 2006, the payments made at that time, and Hanover's failure to provide documentation, as promised. Apparently, Mr. David Fisher, General Partner of Hanover Associates, is choosing not to credit Calabrese with a payment of $250,000.00. Further, Hanover Associates is proceeding with the Sheriff's Sale without providing us with a payoff amount that acknowledges the money received by Hanover Associates. On numerous occasions, Calabrese and its counsel have requested supporting documentation to calculate the payoff amount. In addition, there are entries in Calabrese's journals showing money owed to Mr. Fisher that were created by Mr. Fisher without proof of the same. Mr. Fenstermacher has expressed concern as to the validity of these entries. To date, no explanation has been offered, and certainly no documentation. You and your client have refused to provide us with any information that would assist in calculating a proper payoff amount which you know is crucial as Calabrese has entered into an Agreement of Sale for the New Lot 1 that expires on August 31, 2007. Your Sheriffs Sale is to occur 5 days thereafter. Your failure to return calls to our office and cooperate with the law office of Fenstennacher and Associates, P.C., in obtaining documentation to calculate and affect the payoff due, if any, has prejudiced our client and other lien holders. We object to any interest claimed by your client since December 2006, when the sale of the property should have occurred, but continues to be delayed solely because of your client. Therefore, on behalf of Calabrese and Sons Inc., we demand that the Writ of Execution be withdrawn immediately, which would cancel the Sheriffs Sale, as the Writ has been improperly filed and done so solely to force our client into paying additional monies that are not owed. If the same is not withdrawn by noon, this Friday, August 17, 2007, we will be forced to bring this matter to the attention of the court, and in addition will request sanctions under Pa. R.C.P. Rule 1023 for executing upon the Calabrese's property in bad faith. I\ F 0 R \1 A T 1 o N • A 0 V 1 (: is • 1 t) \' U i l C Y Christian J. Dabb, Esquire August 15, 2007 Page 3 Please contact us upon receipt of this letter and provide us with a copy of the Praecipe to Withdraw the Writ of Execution. Very truly yours, MAR 7SON LA* OFFICES David A" i z`simons DAFltde cc: John M. Coles, Esquire (via facsimile 717-231-6669 John R. Fenstermacher, Esquire (via facsimile 717-691-5441) Mr. Joseph Calabrese (via facsimile 717-697-6506) F 1FILES\ 11093, 11093.10. cd2 1 \ F 1.) R '>t ,? 1' I ) \" • , L) `' 1 l: :'_ • l) o l.: :1 I 'i L A %V F 1 R .NI Christian J. Dabb, Attomey cdabb@cgalaw.com Ext. 152 August 16, 2007 VIA FACSIMILE 717.243.1850 And FIRST CLASS MAIL David A. Fitzsimons, Esquire Martson Law Office 10 East High Street Carlisle, PA 7013 Re: Fisher v. Calabrese and Sons, Inc. Dear Mr. Fitzsimmons: I take no umbrage from your tone nor the urgency of your request. To the contrary, I am more than amenable to discuss the outstanding balances, and, to provide photocopies of checks, as I indicated that I would to Mr. Fenstermacher. I do, however, find the threat of sanctions inappropnate. I would remind you that you have, on numerous instances, deferred to Mr. Fenstermacher and indicated that he handling this particular matter; yet, I now received a threatening correspondence from your office with regard to the outstanding balances. I found it hard to tell from the vague nature of your letter exactly what was desired. I would note that the issue of alleged bad faith on Mr. Fisher behalf is a spurious allegation at best. We are being consistently ignored when it comes to attempting to redress this matter. I note that this seems to be a reoccurring pattern as every time I have sought to resolve this matter with Mr. Fenstermacher and your client, I am greeted with nonchalance when you call me, it is always urgent. We have endeavored to resolve this matter since August 2006. I believe formal communications began with Mr. Fenstermacher sometime near December, in which he made several promises to resolve this issue by the December date indicated in the agreement between Mr. Chernicoff and yourself. I believe if you recall, there was to be a sale of the real estate identified as indicated within that agreement by January 1, 2007, or your client would be in default. No sale took place through no fault of Mr. Fisher. Mr. Fenstennacher subsequently promised in March 2007, that the subject property was going to sale and we could determine the amounts demanded at that time. No such sale took place. We ?00.0130_i 11 ?-INC.r C.-L iA n r C .o., _n 135 N ?1 , -,._Il, August 16, 2007 Page 2 subsequently filed for execution on this property. I then discovered you scheduled another settlement of this property in July after your client received notice of the sale. The July settlement did not happen. Now I am advised that a closing is set for the end of August. Our claim fully credits the $250,000.00 that was supplied by your client; our claim also calculates the proper statutory interest on the remainder of the balances that your client has defaulted upon in the agreement. Our conduct has been to provide you ample time to attempt to resolve this matter as expediently as possible. We have given you our computations of the balance we believe is due and owing. You have never told us what you believe that balance should be. I am beginning to believe your client has no records, as you have never told us with specificity why you disagree with our calculations of the balance due. I appreciate your desire to resolve this matter, but to allege bad faith for merely not providing you with all of our evidence at your request within the last two weeks is both a disservice to myself and a lack of respect for my client's position. I will make every effort to resolve this matter by forwarding copies of checks made out to your client, and to various parties that were paid on behalf of your client by our client. While my Paralegal is out of town on vacation, I am sure that we can accommodate your desire to review these checks by Wednesday of next week (August 22, 2007) which would provide you a full week and a half to determine whether such efforts are necessary on your part. To date, Mr. Fenstermacher has provided no good faith counter offer to the offer that was discussed at the end of July. Should your client be so inclined to pay the money you believe is owed to our client at the closing and be willing to escrow the proceeds of the "sale" with regard to the disputed sums as well as ensure that no subordinate lien holders are paid, I would be willing to recommend to my client that he authorize the withdrawal of the Praecipe. Sincerely, )ZI Christian J. Dabb CJD/jaw cc: Mr. David G. Fisher John R. Fenstermacher, Esq. (vis facsimile 717.691.5441) 100:01302i II I X,4.:1R,'TSOON DEARD{_)ItFF WILLIAMS 0TTO Gtf_i?c)Y MART SON LAW OFFICES WILLIAM F. NIARTSON JOHN B. Fun.ER III DANIEL K. DE aRDORFF THoxos J. 1Qy'ILLIA.%ts* IVo V. OTTO III HUBERT X. GILROY GEORGE B. F:V_.LLR JR.* DAVID A. FIT7.SIJIONS CHRISTOPHER E. RICI! JFNNIFER I.. SPEARS Sum T. Mosr.BrY 10 EAST HIGH STREET CARLISLE, PENNSYLVANLA 17013 TI.LFPHONE (717) 243-3341 F.\ sL»u_. (717) 243-1850 INTERNET www.martsonlaw.com August 16, 2007 VIA FACSIMILE 717-843-9039 Christian J. Dabb, Esquire Countess Gilbert Andrews, PC 135 North George Street York, PA 17401 RE: Calabrese & Sons, Inc. - Fisher Our File No. 11093.2 Dear Christian: 'BOARD CERTIFIED CIVIL TRIAL SPecuusr Although we appreciate your quick response, we are disappointed that we must still file a motion to stop your improvident Sheriff's sale. We take exception to the statements within stating that you have been cooperating throughout this entire process. As you are well aware, you have failed to return calls from our office which could have alleviated the need for our previous letter. From the correspondence that Attorney Fenstermacher sent to you, it appears that he has requested documentation as to your figures but yet you have failed to provide sufficient documentation showing the amount owed. The simple fact remains that we have tried since June of 2006 to obtain the documentation that was agreed to at our settlement on the first Calabrese lot. If you have indeed credited the $250,000 received by Hanover at that time, it appears that Hanover's claim now exceeds $1 Million. That was never a number that was conveyed, even in the most fanciful projections at the time in question. Simply providing a few checks, 14 months late, with an improperly scheduled Sheriff s Sale scheduled just confirms our client's belief of the true motives behind these actions. Hanover will be paid whatever is properly documented as owed. It is obvious that you cannot get your client to come clean with an accurate accounting of its claims. The only fair alternative is to proceed with the sale of the real estate, and to escrow the post-settlement proceeds, until the parties, or a court, decide on the amount owed to Hanover, if any. INFORMATION • ADVICE • ADVOCACY "I Christian J. Dabb, Esquire August 16, 2007 Page 2 If your client cannot agree to that, then the true motivation behind its actions to date are clear, and we will have no choice but to proceed and seek all remedies under the law. I know that Hanover's management values action over legal fees and unnecessary expense. It is time for them to respond to the rational advice of their counsel. Please contact Chris Rice of this office, or me, to arrange for cancellation of the Sheriff's sale, and we can agree to any reasonable assurances, as outlined above. Very truly yours, MARTSON LAW OFFICES David A. Fitzsimons DAFlmmp cc: John M. Coles, Esquire (via facsimile 717-231-6669 John R. Fenstermacher, Esquire (via facsimile 717-691-5441) Mr. Joseph Calabrese (via facsimile 717-697-6506) FARLES\ 11093\ 1109).10, cd3 I N F 0 R M A T 1 0 N - A D V ICE - At) ',oc.-.cY 11 A 2TS0 V' _ F-A,RD0 °?tr F ILLIA-%1S 0TT0 11, r"_?:? MAIRTSON LAW OFFICES WILUAIA F. M,1IRT5ov JOHN B. FuXTEA III DANILL K. DE:LRDORFF THm,IAs J. Wirt?:L-,Is* hro V. UTro III HUAERT X. Qum GEORGE B. FAId_LR JR.* DAvm A. FITY.SIMONS CHRISTOPHER E. Ric F. JENNIFER L. SPr?.\RS SETH T. Mosr.Bi-y 10 E:\sT HiGH STREET CARLISLE, PENNSYLVANIA 17013 TELErHONE (717) 243-3341 FACSIMILE (,17) 243-1850 INTERNET www.martsonlaw.com August 17, 2007 VIA FACSIMILE 717-843-9039 Christian J. Dabb, Esquire Countess Gilbert Andrews, PC 135 North George Street York, PA 17401 RE: Calabrese & Sons, Inc. - Fisher Our File No. 11093.2 Dear Christian: 'BOARD CER-MIED CIVIL TRLkL SrEcuun This letter is in follow-up to our telephone conversation yesterday evening. I appreciate the considerable progress made through our frank discussions. I know that by now you have Jack Smith's letter; and assure you that Calabrese is onboard with the following proposal and appreciates your efforts. We still believe that the best option is to proceed with settlement and to determine the amount owed to your client thereafter. If we are unable to reach an agreement to this effect today, we will be required to file a petition to set aside the Sheriff s sale on September 5, 2007. The following offer is not an admission that Hanover is owed additional funds, but rather is a good faith attempt to come to a mutually acceptable resolution. In consideration of Hanover voluntarily cancelling the scheduled Sheriff's sale, Calabrese is willing to proceed with the sale of the property and to direct the settlement agent to disburse to your client $25,000.00 from the proceeds of the sale. Thereafter, we will place the net proceeds of the sale (excluding the costs of the settlement and the $25,000.00 paid to your client) into escrow. Your client will then have 30 days in which to provide documentation of the amount it is owed. After your client provides such documentation, Calabrese will be given 30 days to respond. Once both sides have exchanged documentation regarding the amount owed to Hanover Associates, both parties will have 10 days to reach a mutually agreed upon amount that is owed. Should these efforts fail, both parties agree to proceed to court so that a final figure may be judicially determined. I ZIFORMATION - ADVICE - ADVO LACY `' Christian J. Dabb, Esquire Countess Gilbert Andrews, PC August 17, 2007 Page 2 Please contact me as soon as possible to confirm Hanover's acceptance of this proposal. As stated above, if we cannot reach an agreement to set aside the scheduled Sheriff s sale, we will be forced to file a petition for emergency relief, and all offers of partial payment will expire. Very truly yours, MARTSON LAW OFFICES S, 77 David A. Fitzsimons DAF/mmp cc: John M. Coles, Esquire (via facsimile 717-231-6669 John R. Fenstermacher, Esquire (via facsimile 717-691-5441) Mr. Joseph Calabrese (via facsimile 717-697-6506) F'MES\11041111091.10.cd4 IVF0RMAT10N - A DV ICE - A1)VOC-1t'Y `I Al SWW,k9fAAM,K1k L A W F I R M Christian J. Dabb, Attorney cdabb@cgalaw.com Ext. 152 August 17, 2007 VIA FACSIMILE 717.843.9039 AND FIRST CLASS MAIL David A. Fitzsimons, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 Re: Hanover Associates v. Calabrese & Sons, Inc. No. 04-3940 Dear David, I appreciate your candid and expedient response to our discussions. I have indeed received the letter from Mr. Smith, and I briefly relayed the general flow of our discussion last evening. I also appreciate that you have provided an offer this afternoon, I have made every effort to contact Mr. Fisher with regard to this effort, and he is unavailable this afternoon. As I am sure you can appreciate the rather short notice on the offer that you have provided, I will require at least until Monday afternoon to review this with Mr. Fisher. I will certainly convey your first offer to Mr. Fisher and review with him the particularities of such a potential resolution. I would also request, that while I endeavor to resolve his concerns regarding such an offer by Monday afternoon, I would reiterate our request that the equipment subject to the lease agreements that are currently in the possession of Mr. Calabrese be returned. Should you be able to derive some potential resolution of the outstanding government assignments as well, I'm sure my Client would be receptive to such efforts. Perhaps you can establish some parameters for resolution of these collateral matters, while I review your present offer. Sincerely, Cbristia . Dabb CJD/jaw cc: David Fisher ;00201-455/11 r. ivv '\ ;? ,. JA 1 3() .'v D 1.., A -R. f R I F YC la MARTSON LAW OFFICES lt'IWA-I F. NfARTSON JoHti B. FOWTER III DANIEL. K. DEARDour TEiomAs J. ?r'iL.11:L?cs* No V. Orr(-) III HCBFRT X. GuaoY GEORGE B. FAI.LI:R JR.* DAvn3 A. Fir7.s]MONS CmusTUPRcR E. Itit;E JLNNII-ER L. SPFARS SETH T. Nfosy:mL.N, TRL Dl' E. FI:L1I NG1 R 10 EASr HicH STRr_r:T CARUSL.E, PLVKSYLVANU 17013 TF.u,. ozNE. (717) 343-3341 FACSIMILL: (717j 343-1850 IVTI:FLNLT www.martsonlaw.com August 20, 2007 VIA FACSIMILE 717-843-9039 Christian J. Dabb, Esquire Countess Gilbert Andrews, PC 135 North George Street York, PA 17401 RE: Calabrese & Sons, Inc. - Fisher Our File No. 11093.2 Dear Christian: Thank you for your prompt, if inconclusive, follow-up. BOARD C EKnFi F.D (,:ML TRL-x SPBCIAusT I forwarded your letter of last Friday to Joe Calabrese. Joe advises that he was at his mother's house on Friday afternoon, which is close to Dave Fisher's residence. All of the Fisher vehicles were in the driveway. We hope that Mr. Fisher has been available to you over the weekend. With regard to the equipment which Mr. Fisher wishes returned; I can confirm that I was present at the meeting with Mr. Fisher, Mr. Calabrese and Hanover's former counsel, Bob Chernicoff, in Harrisburg almost 18 months ago when we agreed that Mr. Fisher could have those machines whenever he cares to retrieve them. That still stands and if Mr. Fisher would prefer that the arrangements are made between you and me for the retrieval of those machines, please let me know. With regard to assignments of contracts, those limited term contracts assignments are included within the valuation both on Mr. Fisher's part and Calabrese regarding amounts owed to Hanover Associates. I expect that those will be addressed globally under the terms of the agreement proposed in my letter on Friday. We are fast running the clock down before we must file appropriate motions to prevent the Sheriffs Sale. We are also working with counsel for the buyer to assure settlement on the date referenced in correspondence provided to you last Friday. INFO R M A T 1 0 N - ADVECE 9 ADVOCACY "" Christian J. Dabb, Esquire August 20, 2007 Page 2 Please get back to us at your earliest convenience with Mr. Fisher's response. If his response is negative, or if you are unable to reach him, we will have no choice to but to file in Court as you and I had discussed. Once that filing is made, all negotiations end. Very truly yours, MARTSON LAW OFFICES v David A. Fitzsimons DAF/tde cc: John M. Coles, Esquire (via facsimile 717-231-6669 John R. Fenstermacher, Esquire (via facsimile 717-691-5441) Mr. Joseph Calabrese (via facsimile 717-697-6506) , Iv F 0 R M A T 1 0 N - :ADVICE - ADVL)C kC V "" * 10/05/2007 11:40 7176915441 FENSTERMACHER&ASSOC. PAGE 02 r FENSTERMACHER AND ASSOCIATES, P.C. ATTORNEYS AND COUNSELORS AT LAW JOHN R. FENSTERMACHER •MEMDlIt ITINBTLVANIA AND DIRECT DIAL (717) 691-5420 M ills" 11M October 3, 2007 VIA FACSIMILE: 843-9039 Christian J. Dabb, Esquire Countess Gilbert Andrews, PC 138 North George Street York, PA 17401 RE; Fisher - Calabrese and Bons, Inc. Dear Chris I write today to confirm that to date I have received nothing from your office regarding C documentation of the claims of David Fisher. My assumption is that you will not provide the information that you agreed to provide at the Courthouse on August 29, 2007. If you have any such information, please confirm it to me immediately. Otherwise, we will have a hearing date set with the Court. Thank you. 0 rac cc. Calabrese and Sons, Inc. David Fitzsimons, Esq. Very truly yours, FENSTERMACHER AND ASSOCIATES, P.C. By: John R. Fenstermacher PLI&ME FMSr01VD TO: MECHAf1ICSSURG OFFICEr QC-AN CITY OMCE: THE JONAS RUPP FIOU5E (717) 691.5400 26 MAY AVENUE 5125 FAST TRINDLE ROAD FAX (717) 691-5441 OCEAN CfrY, NJ 08226 MEC14f%MCS9tJVZG. pENNSW_VANTA 17050 tvww_fenstermacherandassocfates.com (609) 391-9"1 johnafenstermncherandaseocletes.com WE JDNAt RUPP /10199 .? •"`'!?:,:? ? _ ' ?r ,:tit _...? , L A 1`, F 1 R I October 5, 2007 VIA H.*%YD DELIVERY David A. Fitzsimons, Esquire Martson Law Office 10 East High Street Carlisle, PA 17013 Re: Fisher v. Calabrese and Sons, Inc. Pursuant to Order dated: August 29, 2007 Dear Mr. Fitzsimmons: Christian J. Dabb, Attorney cdabbCgcgalaw.com Ext. 152 My apologies for the delay. We have added a few new faces here that has greatly enhanced workload and delayed some projects. Please find enclosed copies of documentation involving the outstanding balances indicated by Mr. Fisher and Hanover Associates, Inc. You will find the previous spreadsheets compiled by Mr. Fisher, in addition to the checks that we promised you which validate the balances. As a courtesy, I have also included copies of the interest as calculated by Mr. Fisher for the outstanding balances. In addition I have provided the lease agreements and the assignments that have been repeatedly raised by Mr. Fisher and are currently subject to litigation, which we have been gracious enough not to move forward on in light of the present negotiations. If you have any questions or concerns please advise. I appreciate your time and understanding with regard to providing these materials, and will certainly show the same courtesy to you. Sincerely, Christian . abb CJDjaw cc: N1r. David G. Fisher John R. Fenstennacher, Esq Rees Griffiths. Esquire (vis facsimile 717.691.5441) r MADIrSON LAW OFFICES 10 E.v.:, I I[I<;Ii SIRtr•:r ('.ARLiSLE. 1-013 '1-) 343-3341 Fm?"Imn_t. t,71-) 243-N51) I-,TFRNI I' %k-Nv marrsont'aw.CU[T3 VIA FACSIMILE 717-843-9039 Christian J. Dabb, Esquire COUNTESS GILBERT ANDREWS, PC 135 North George Street York, PA 17401 October 5, 2007 RE: Hanover Associates v. Calabrese & Sons, Inc. Our File No. 11093.2 Dear Mr. Dabb: W11.1.1 ttit E. %I \.Rrs \\ Jojt\ H. 170 ,xi.t R III I7:\.?tla. K. I)F. 1R77t 1RI F TIIwfG s J. Wif 11."fsk I%o V. Orro III IIL BERT X. GILRON' 'HOARD C rR'ft}f (1I't nu.;l. f3. FIJJ- R (R.` M\ m A. Fl r;'se,u ,\s C!1RisTtl11lib.i< I-,. Ri(+.. 11 S\It i R L. SP1.1R? Sf:rli T..M( IstrAix TRI 1A F. FIIHANGI It ED ( AVIL 1RtAL SP*.l IALIST This is in follow up to our telephone conversation this morning in which I sought your concurrence, as required by the Local Rules of Cumberland County, with regard to our Petition for Rule to Show Cause. As I stated in our conversation, we are prepared to file our Petition today; however, you left me with the impression that Hanover's documentation regarding the remaining balance has been mailed to our office and that we should receive the same today. In good faith reliance on your representations, we will agree to delay filing our Petition until Monday. Should we fail to receive the documentation you promised by the close of business today, we will file our Petition on Monday morning. Therefore, please consider this as notice pursuant to Pa. R.C.P. 206.5 of our intention to request the Court to issue the Rule to Show Cause. Please be advised that we reserve all of our rights to proceed against Hanover for its failure to provide the required documentation. As you know, the documentation was to be provided by the end of September. It is now almost one week late. Very truly yours, STM/mmp MARTSON LAW OFFICES .31P j-, "' Seth T. Mosebey cc: John R. Fenstermacher, Esquire (Via Facsimile: 691-5441) Mr. Joseph Calabrese (Via Facsimile: 697-6506) F '.FILES\Clients\ 11093\ 11093. l0.cd l O.wpd IN F0 RytAT10N • A D V I C E • AI-)voc k cY rIb/15/2007 16:24 7176915441 FENSTERMACHER&ASSOC. PAGE 02 FENSTERMACHER AND ASSOCIATES, P.C. ATTORNEYS AND COUNSELORS AT LAW JOHN R. FENSTERMACHER •14 MEHR PINNSTLYAMA AND DIRECT DIAL (731691-5420 NEW ITRSKY EAR October 15, 2007 Christian J. Dabb, Esquire Countess Gilbert Andrews, PC 135 North George Street York, PA 17401 VIA FACSIMILE: 843-9039 and FEDERAL EXPRESS RE: Fisher - Calabrese and Sons, inc. C Dear Chris- I am enclosing our documentation regarding the amount that has already been paid to 0 your client and we believe nothing further is due to him. The documentation that you provided to us is difficult to interpret and difficult to decipher the records your client kept in this matter. Accordingly, we are forwarding your information and our documentation out to an accountant for review for presentation at the hearing in this matter. To aid us in interpreting the documentation your client submitted, I would ask for some available dates for his deposition to P take place in the next two to three weeks. Thank you. Ver y truly yours, FENSTERMACHER AND ASSOCIATES, P.C. By: John R. Fenstermacher rac Enclosures cc: David Fitzsimons, Esquire Calabrese and Sons, Inc PLEASE RESPOND T4: M£CHANICSSURO OFFICE: OCEAN CITY OF71CE: T14E JONAS RUPP HOUSE (717) 691-5400 26 9AY AVEN(fE 'a11S' PsAST TRUNDLE ROAD rAX (717) 6914442 OCEAN MY, M 08226 MECHANtCSBURa. er-NNSYWAMA 17050 urww fansterm ]eharanda?ocfates•oom f609) 391_9461 john(g; fenstermacharae+dassoc)ates. com WE JONAr 00" xoufF 1111412007 10:56 17177187141 r 1. A W F I R M November 14, 2007 David A. T itzsimons, Esquire Martson Law Office 10 East High Street Carlisle, PA 17013 John R. Fenstermacher, Esquire Fenstermacher and Associates. P.C. The Jonas Rupp ITouse 5115 East Trindle Road Mechanicsburg, PA 17050 Re: Fisher v. Catabresc and Sorts, Inc. No. 2007-S'U-534-YOI Dear Gentlemen: CGA LAW FIRM Christian J. Dabb, Attorney cdsbb@cgalaw,com Ext. 152 PAGE 02/02 To date, I received your November 5, 2007, regarding depositions and I would ask for a Notice of Deposition as well as a basis for the deposition. I presume it relates to what we anticipate will be a hearing for the outstanding balances and the original claim. It is my understanding that Intr. Fitzsimons has indicated a willingness to return the 2 pieces of leased equipment, which is the subject of the breach of lease and replevin action. We are currently holding but not moving Forward on this claim, in light of the potential aforementioned agreement. I would request that you provide as notice, as I will be requesting that the Judge schedule a hearing to resolve the OUtstanding claim. If* you have any questions or concerns, }Tease advise. Sincerely. Christi, J. Dabb C J D%acp CGA .aw Firm, CGA P-oiessional Center, 135 N, George Street, Yo-k, PA 17401, 7117.848,4900, Fax 717.843.9039, www.cgalaw.com NIAPTSON LAW OFFICES t:?'Ai mi, Ptyy„!,,yt, 1-013 Tr! ! Ntu,\r .-17; 243-3341 1, tr>IN1[.h. ?1- 343-1s3i) I\ t't R\r r ,t .c?c-.martsunLtu:cnm I:n ?'. !)r:?> III Ht litRTKGHR(» GI -'WE D. F11J.(.R JR.' 'IS+,.kRo i:aKnrn ll„tu) A. Fri,,'swc% C;IRl>l, THi R L. Ilia (r\\If i R L. Sol \R' SI TH T ?Ic;?t ltt,, Dt Ln F. FI tlul\(;tit Kxnr: ?. \L,x,%i 1.i. D (:l\ IL TRIAL SVECLa I.T November 20, 2007 Christian J. Dabb, Esquire COUNTESS GILBERT ANDREWS, PC 135 North George Street York, PA 17401 RE: Hanover/Fisher - Calabrese & Sons, Inc. Our File No. 11093.10 Dear Christian: Your letter of November 14, 2007, requesting a Notice of Deposition has been addressed, I believe, since John Fenstermacher has provided you with such a Notice. With regard to your repeated references to the pieces of leased equipment; I have on more than one occasion written and offered that Mr. Fisher may remove that equipment from Calabrese's plant at any time. I have also stated in person and in writing that the current calculations of the Hanover/Fisher claims against Calabrese include, on our side of the margin, the claims under the equipment leases. If you are still unclear as to the intent of this language, please feel free to contact me. Very truly yours, MARTSON LAW OFFICES David A. Fitzsimons DAF'tde cc: John R. Fenstermacher, Esquire Mr. Joseph Calabrese 1 N F 0 R M A T 1 0 N • A D V i C£ • A D ,' t) U A C t 1, l . I fk M S l ` i' # > * ' i a `Y E 1 t, I.- !' :t MAIR."fSON LAW OFFICES WILLIAM F \i.%R,rso\ JIIH\ B. F(I %vtLR III DAMEL K. DFARDORFF 'rHom,.\s J. W11.L1AMS* ko V (Trro 112 IIt BI.RT X. GIIROY G6()R(&, B. FALLER JR." Dmm A. FITZsluovs CimsTt)PHER E. PJCE JENNIFER L. SPEARS SF.TH T. MOSEBEY TRLDY E. rEHUN61;'R K%TIF. J. NIAXWT-I.L 10 EAST Not STRI I>r C_m.1SIT, PF4NSYP.IAN1A 17013 TFLF.PH(IVF. (71-) 243-3341 FAt scmiiF. (717) 243.1850 INTERNET uu.w.martsunlawcmm BOARD CERTIFIED CIVILTRIAL SWIALIAT November 30, 2007 VIA FACSIMILE 717-843-9039 Christian J. Dabb, Esquire COUNTESS GILBERT ANDREWS, PC 135 North George Street York, PA 17401 RE: Hanover Associates v. Calabrese & Sons, Inc. Our File No. 11093.2 Dear Mr. Dabb: This is written in our capacity as corporate counsel for Calabrese & Sons, Inc. I understand that John Fenstermacher has forwarded the materials provided by you to James Smeltzer, the accountant the parties had previously agreed upon, for review and opinion on the sufficiency of Hanover's documentation. The documents provided do not remotely support the continued escrow of the net proceeds of the September 5, 2007, land sale. You have also been provided copies of Calabrese's documentation of payments made to Hanover. It would have been more helpful and consistent with our agreement before Judge Bayley if Hanover's submission contained an identifiable number at issue with an accounting of the basis for that figure. It is, however, unquestionably true that any amount owed Hanover/Fisher is remarkably less than the amount currently held in escrow by Attorney Jack Smith. In fact, 10% of the $567,811.73 in escrow would exceed the documented claim. We expect, apparently as do you, that a hearing to judicially determine the precise amount owed will be required, and it is even possible that in a hearing Hanover may owe money to Calabrese. After much avoidance on the part of your client, a deposition was finally scheduled, but now has been postponed to December 4. This situation is intolerable for Calabrese because monies urgently required for operations have been tied up in,'v1r. Smith's escrow account for months longer than we reasonably anticipated on August 28. IN FORMATION • ADVICE • ADVOCACY "' Christian J. Dabb, Esquire November 30, 2007 Page 2 Your client's actions, aided and abetted by the CGA Firm, now bring in to play the potential for sanctions pursuant to Pa. R.C.P. 1023, and suit for misuse and abuse of civil process, under the Dragonetti Act, 42 Pa. C.S.A. §8351 et seq. We therefore request and demand that you immediately authorize the release of $300,000.00 from the Escrow Account in order that serious and lasting damage to Calabrese be can avoided. Alternatively, given the obvious expense and potential uncertainty (to Hanover/Fisher) of the scheduled deposition and outcome of a hearing, I am instructed to offer for a strictly limited time period, an additional $20,000.00 in excess of the $559,000 already documented as received by Hanover in full and final settlement of all claims of Hanover Associates and David Fisher outstanding against Calabrese & Sons, Inc., its agents, and officers. Under either alternative, it is imperative that to avoid the potential failure of Calabrese, and further action against Fisher, Hanover, its partners, and CGA, that funds be available to Calabrese by December 5. This offer will remain open until the close of business on Monday, December 3, 2007, at which time it will be void and we will proceed with the deposition and move to schedule a prompt hearing before Judge Bayley. Very truly yours, M O L OFFICES David A. Fitzsimons DAF/tde cc: John R. Fenstermacher, Esquire (via facsimile 717-691-5441) Mr. Joseph Calabrese (via facsimile 717-697-6506) John M. Smith, Esquire (via facsimile 717-367-3219) F'FILES 'Clientsll 1093A 1093. Pl cdlo 12 I N F 0 R N1 A T 1 0 N - A D V I is E - A D V 0 C +"„ ., 12/03/2007 16:44 17177157141 +r L A W F 1 R M COOICss almart AndrCVA, PC December 3, 2007 VIA FACSIMILE 717-243-1850 David A. Fitzsimmons, Esquirc Martson Law Offices 1.0 East High St. Carlisle, PA 17013 CGA LAW FIRM Re: Hanover Associates v. Calabrese and Sons, Inc. Your File 11093.2 Dear Mr. Fitzsimmons: Christian J. Oabb, Attorney cdabb(acgataw.com Ext. 152 PAGE 02/03 I reviewed your correspondence dated November 30, 2007, and we have now had the opportunity to discuss your position via telephone on Friday afternoon. It is my understanding that you appreciate my concern over. a continued pattern of behavior by your client which raises demands and offers with deadlines that contemplate very short turnaround. I find it necessary to raise some points in response to your letter as well. While I appreciate your concerns, I am sure that Mr. Fisher does not agree that his claim lies somewhere less than ten percent of the total amount of the escrowed funds. I have forwarded your information to a third party accountant, to review your accounting. This was completed in November and I should have those available at the deposition, barring unforeseen delay. In addition, 1 do not concur that our actions constitute improper and vexatious conduct. Our conduct was specifically governed by the Judicial Order dated August 29, 2007 by Judge Bayley himself. Said Order was entered with your specific concurrence. At no time, did you indicate any concerns with regard to time or deadlines to ensure that a hearing was held prior to a date certain, and that monies would be requited to "keep Calabrese and Sons afloat". You had every opportunity at that time to act to ensure that the time frame was to your Client's preference. The issue with regard to discovery was contemplated at the original hearing date, and I would be hard pressed to believe that I am not permitted to run your accountant's numbers against a third party review of Mr, Fisher's numbers versus your accountant's. As I indicated to you by phone on Friday, I did so to ensure a reasonable resolution of remaining balance. Lastly, with regard to the deposition, there has been no egregious attempt to delay this deposition. We provided a date available to Mr. Fenstermacher when it became apparent that I would be called into another hearing and I did not want to fall prey to having to cancel the November 27, 2007 deposition at the last minute. If you must know, as I informed Mr. ( W:0'1577111 CGA Law Firm, CGA Professional Center, 135 N. George Street, York, PA 17401, 717.8/8.4900, Fax 717.843.9039, www,cga!aw.rcm ?MA LAW FIRM PAGE 03/03 11/03/2007 16:44 17177187'41 December 3, 2007 Page 2 Fenstermacher, I was required to appear before a Worker's Compensation Judge at the last minute, and I did not want Mr. Fenstermacher put out in terms of availability. Now, as I stated to you on Friday November 30, 2007, when you agreed to delay the deadline for this offer until December 5, 2007, I do not believe your requcst is untenable. I have spoken at length to Mr. Fisher and convinced him to agree to release Two Hundred and Fifty Thousand Dollars and 00/100 ($250,000.00), upon the following conditions: 1) We will obtain a judicial order providing the release, by going jointly to Judge Bayley together I believe his order will remain. in effect, and I do not want to do anything outside his purview as it relates to this matter. 2) We will jointly notify and seek agreement from Virginia Calabrese that she consents to the release of these funds. My expectation is that she would expect these funds to be released to her as the next lien holder. Then she can determine whether the funds are properly released pursuant her lien and credit in her judgment is reflected for everyone down the line. I believe the Judge would concur that such an action is appropriate. 3) Since you and I both know that the remaining balance of the Hanover Confession of Judgment Note is far. greater than the $20,000.00 you have offered, perhaps tender the $20,000.00 as consideration for the agreement to release assuming Virginia Calabrese agrees to the release of the $250,000.00 indicated above. I do not believe that the Judge will find such a resolution offensive to any and all parties, and will serve to protect everyone from any claims of misconduct in handling these escrow funds. I would be willing to appear on at any time to accommodate a judicial order or conference. Please advise if this is amenable to you. Sincerely Christian J. b /cjd Cc: Richard Stevenson., Esquire Mr. David Fisher. MARTSON LAW OFFICES \X'll1l AAI F. NhRTSON Jc IFF\ B. FI I\A !.L.R III DANIP.I. K. DFARDURPF T!imi,\5 1. Wtu.t vms* Im V nrro III I IL BIXF X. GII,RO Y (iE.OR(;E. B. F.V_LER JR.* DAvID A. FITZSIMONS CHRisroPHER E. RI(.F JFNNIIT:R L. SPEARS St:TH T. ` osvuA, TRCDY E. FIIHF.INGAR 10 F \S-1 HIGH S?rREF_r C \RLISF.L, PI:\\S) Ia'\NL1 17013 Ti,jiioiwo, (-17) 243-:3341 F:A(,SIVIILF. (717) 243-1850 INI I RNET wwwniartsontmvxom BOARD CERrinw CIVIL FRLLL SPECIALIST December 20, 2007 VIA FACSIMILE (717-843-9039) Christian J. Dabb, Esquire Countess Gilbert Andrews, PC 135 North George Street York, PA 17401 RE: Hanover Associates v. Calabrese & Sons, Inc. Our File No. 11093.10 Dear Mr. Dabb: I am writing to thank you for you and your client's concurrence with my request, made on behalf of Calabrese & Sons, Inc., to agree to the partial release of escrowed funds in the above- referenced matter pursuant to Judge Bayley's Court Order, a copy of which is attached. I appreciate your perspective from our discussions yesterday and have a clearer understanding of how certain mis-communications, on both sides of the caption, may have led to misinterpretations of intent of actions since August 2007. I believe and state that our full and frank discussions today in the presence of Mr. Fenstermacher and your agreement on behalf of Hanover to release funds urgently needed by Calabrese, albeit that those funds are being distributed to the appropriate lienholder, Mrs. Calabrese, resolves any stated concerns from my letter of November 30, 2007, which concluded with threats of sanctions pursuant to Rule 1023 and the Dragonetti Act. I can assure you that, to my recollection, that is only the second time I have felt it necessary to draft and send such correspondence. As we attempt to move toward a full and final resolution of this matter, you and your firm should proceed with the understanding that I no longer consider the conditions that triggered the direction of that correspondence in place, and have so advised my client. I N FORMATION - ADVICE - ADVOCACY '"" .4v Christian J. Dabb, Esquire December 20, 2007 Page 2 Thank you for your consideration. If you require any clarification on this letter, please feel free to contact me. Very truly yours, M TSON L W.,OFFICES ?avi ' in n?' S'am' ?-' . DAF/mas Enclosure cc: John R. Fenstermacher, Esquire (via facsimile 717-691-5441) (w/ enc.) Mr. Joseph Calabrese (via facsimile 717-697-6506) (w/ enc.) F:TILES\Cliems'. 11093\11093.10.cd10.16 I N F 0 R M A T 1 0 N 0 A D V I C F, • A D V 0 C ,A C Y ill O 16 CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Response to Plaintiff's Motion in Limine was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Christian J. Dabb, Esquire CGA Law Firm CGA Professional Center 135 North George Street York, PA 17401 John R. Fenstermacher, Esquire Fenstermacher and Associates, P.C. The Jonas Rupp House 5115 East Trindle Road Mechanicsburg, PA 17050 John M. Coles, Esquire RHOADS & SINON Dauphin Bank Building Twelfth Floor One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 John M. Smith, Esquire Gingrich Smith Klingensmith & Dolan 222 South Market Street, Suite 201 P.O. Box 267 Elizabethtown, PA 17022 MARTSON LAW OFFICES By .4, A ricia D. Eckenroad Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: January 7, 2008 r....a ?"? r.:? ,, .. n , ;-:_ ?'= ? _? , < '? .__! __? ? _ : $ _. i ,?4 C:. .:? ?> . HANOVER ASSOCIATES, PLAINTIFF V. CALABRESE & SONS, INC., DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 04-3940 CIVIL TERM ORDER OF COURT AND NOW, this day of January, 2008, upon consideration of the foregoing petition, IT IS ORDERED: (1) A Rule is issued against Hanover Associates to show cause why the petition to open a judgment of Calabrese & Sons, Inc., should not be granted. (2) Hanover Associates shall file an answer to the petition within fifteen (15) days of service. (3) The petition shall be decided under Pa. Rule of Civil Procedure 206.7. (4) Any depositions shall be completed within sixty days of this date. (5) All briefs shall be filed in chambers not later than April 2, 2008, and argument shall be held on Friday, April 4, 2008, at 8:45 a.m., in Courtroom No. II of the Cumberland County Courthouse. CD LLJ 0 N Christian J. Dabb, Esquire For Plaintiff David A. Fitzsimons, Esquire Seth T. Mosebey, Esquire John R. Fenstermacher, Esquire For Defendant John Smith, Esquire For Intervenor Stephanie E. DiVittore, Esquire John M. Coles, Esquire (For Virginia Calabrese) :sal -2- c6f tles //l U?O x P.',FILEWlients'A 1093\11093.2.petl.wpd\tde Created- 9/20104 0.06PM Revised: 0108 11.58AM 11093A I I Seth T. Mosebey, Esquire I.D. No. 203046 David A. Fitzsimons, Esquire I.D. No. 41722 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant HANOVER ASSOCIATES, IN THE COURT OF COMMON PLEAS OF Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2004-3940 CALABRESE & SONS, INC., CIVIL ACTION - LAW Defendant PETITION TO OPEN AND NOW, comes the Defendant, Calabrese & Sons, Inc., by and through their attorneys, MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, and files the following Petition to Open: 1. This Petition hereby incorporates Defendant's Response to Plaintiff's Motion in Limine filed on January 7, 2008, at this docket number. 2. On August 10, 2004, Plaintiff confessed judgment in the amount of $323,569.10, plus interest, against Defendant for breach of a Promissory Note dated June 7, 2004. 3. On June 15, 2006, Plaintiff and Defendant entered into an agreement whereby Plaintiff agreed that it would take no further action against Defendant, and Defendant confirmed its agreement to sell certain real estate to repay the remaining balance, if any, owed to Plaintiff under the Promissory Note. 4. Crucial to the above-referenced agreement was Plaintiff's agreement to provide documentation setting forth the basis for accurately calculating any remaining balance on the Promissory Note, and any and all other outstanding debts. t 5. Plaintiff has persistently failed to provide documentation setting forth a basis for accurately calculating any remaining balance due under the Promissory Note. 6. Pennsylvania Rule of Civil Procedure 2959 states that a petition to open must be filed within 30 days of the Writ of Execution unless there were compelling reasons for the delay. 7. Plaintiff served a Writ of Execution on Defendant in June 2007. 8. From June 15, 2006, until January 4, 2008, when Defendant was served with Plaintiff's Motion in Limine, the parties continued to negotiate the balance due under the Promissory Note. 9. Even though the parties continued to negotiate the balance of the Promissory Note, pursuant to its Motion in Limine, Plaintiff now seeks to exclude over $250,000 paid from Defendant to Plaintiff in partial satisfaction of debts to Plaintiff represented by the Promissory Note. 10. Because Defendant had no reason to believe that Plaintiff was refusing to continue to negotiate in good faith the amount due under the confessed judgment until January 4, 2008, Defendant has demonstrated compelling reasons for its delay in filing this Petition to Open. WHEREFORE, Defendant respectfully requests that this Court issue an Order opening the confessed judgment entered on August 10, 2004, and permitting Defendant to introduce evidence contesting the amount due under the Promissory Note. MARTSON LAW OFFICES By Seth T. Mosebey, Esquire I.D. No. 203046 David A. Fitzsimons, Esquire I.D. No. 41722 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attornevs for Defendant Date: January -) , 2008 f VERIFICATION I, Joseph Calabrese, President of Calabrese & Sons, Inc., acknowledge I have the authority to execute this Verification on behalf of Calabrese & Sons, Inc., and certify the facts asserted in the foregoing document are true and correct to the best of my knowledge, information and belief. To the extent 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. § 4904. Calabrese & Sons, Inc. J seph Calabrese r •? CERTIFICATE OF SERVICE 1, Mary M. Price, an authorized agent for Martson Law Offices, hereby certify that a copy of the foregoing Defendant's Petition to Open was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: John R. Fenstermacher, Esquire Fenstermacher and Associates, P.C. The Jonas Rupp House 5115 East Trindle Road Mechanicsburg, PA 17050 Christian J. Dabb, Esquire CGA Law Firm CGA Professional Center 135 North George Street York, PA 17401 MARTSON LAW OFFICES By: Vtmo ?A- e C2V` M . Price Ten ast High Street Carlisle, PA 17013 (717) 243-3341 ? Dated: / 7A HANOVER ASSOCIATES, PLAINTIFF V. CALABRESE & SONS, INC., DEFENDANT AND NOW, this IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 04-3940 CIVIL TERM ORDER OF COURT Q41L--day of January, 2008, the hearing scheduled for this date by order of December 19, 2007, IS CANCELLED. Christian J. Dabb, Esquire For Plaintiff David A. Fitzsimons, Esquire John R. Fenstermacher, Esquire For Defendant John Smith, Esquire For Intervenor Stephanie E. DiVittore, Esquire (For Virginia Calabrese) By the Edgar B. Bayley, J. I sal 'r: :N ? f ., , <_?:_ " s ? , ? y t , . E,4? ?i' +t _ ' ?f ?,t..? ,_, ? ` is.- ? -.--s a N ~ CGA LAW FIRM Christian J. Dabb, Esquire Supreme Court I.D. No. 85370 135 N. George St. York, PA 17401 717-848-4900 717-843-9039 fax Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW HANOVER ASSOCIATES, Plaintiff V. CALABRESE & SONS, INC., Defendant No. 04-3940 The Honorable Edgar B. Bayley ANSWER TO PETITION TO OPEN AND NOW, this 22nd day of January, 2008, comes the Plaintiff, Hanover Associates, by and through its attorneys, Christian J. Dabb, Esquire, and CGA Law Firm, and files the following Answer to Petition to Open: 1. Denied. Insofar as the specific averment contains a voluminous document entitled Defendant's Response to Plaintiff's Motion in Limine to which no singular averment would be sufficient, Plaintiff specifically denies all allegations and incorporates its Motion in Limine in response. Strict Proof is demanded at trial. A true and correct copy of the Plaintiff's Motion in Limine is attached hereto and incorporated as Exhibit "A" as though more fully set forth herein. 2. Admitted. {00214569/1} 3. Admitted in part, Denied in part. It is admitted that there was a negotiated agreement between the parties on said date, any further allegations are specifically denied insofar as the document speaks for itself. By way of further answer, this `negotiated agreement' is in default, and no agreement exists at the present time. A true and correct copy of said `agreement' is attached hereto as Exhibit "B" and incorporated herein as though more fully set forth. 4. Denied. It is specifically denied that any understanding exists between the party insofar as the document speaks for itself, and furthermore, said averment fails to indicate whether `crucial' to said agreement is the monthly payments that were to be paid, in addition to the failure to sell the subject real estate in this matter prior to the agreed upon December 31, 2006 Default date. See Plaintiff's Exhibit `B. By way of further answer, insofar as the document indicates monthly payments of $5,000.00 beginning July 1, Of 2006, were to be made, no such payments have been forthcoming. See Plaintiff's Exhibit "B." 5. Denied. Plaintiff has provided varying documentation of balances paid to the Defendant, after the promissory note, and confession of judgment which establish the present value of the claim. 6. Admitted. 7. Admitted. More specifically, the Writ of Execution and Notice of Execution were filed on June 6, and an Affidavit of Service was filed on June 11, 2007. 8. Admitted in part, Denied in part. It is admitted that negotiations have taken place during the stated time frame. To the extent that the Defendant relies upon negotiation as a basis for failing to file a Petition to Open during the requisite time frame, {0021456911) it is specifically denied that such negotiations form such a basis for failing to file a Petition to Open within the requisite time period. Furthermore, during said time frame, Defendant can point to no request for an extension of time to file such a Petition. 9. Denied. It is specifically denied that the Plaintiff intends on excluding the $250,000.00 payment which occurred after the execution of the Promissory Note and the filing of the Confession of Judgment. To the contrary, the Plaintiff is both willing and required to admit to payments that have been extended to the Plaintiff after the filing of the Confession of Judgment. WHEREFORE, Plaintiff respectfully requests that this Honorable Court deny the Petitioner's request to Open the Confession of Judgment as filed by the Plaintiff and substantiated through a Writ of Execution filed on June 6, 2007. Respectfully submitted, CGA LAW FIRM Christianabb, Esquire Attorne s for Plaintiff (00214569/1} ATTORNEY VERIFICATION I, Christian J. Dabb, Esquire, as an Officer of this Court, verify that the information contained in the Answer to the Petition Open Judgment is true and correct. I further verify that I am making this verification on behalf of Respondent because it was impracticable to obtain Respondent's verification within sufficient time to file this Answer. I further verify that the information contained in this Answer to the Petition Open is within my scope of knowledge and that the statements made are true and correct to the best of my knowledge, information and belief. This verification is made subject to the penalties of 18 C.S.A. § 4904 relating to unworn falsification to authorities. I am authorized to execute verifications on behalf of Hanover Associates. Date: January 22, 2008 'J7.4,- Z,_ Ati ia , squire CGA FIRM (00213850/1} E?IIBYT "A» 4 . CGA Law Firm Christian J. Dabb, Esquire Supreme Court I.D. No. 85370 135 N. George St. York, PA 17401 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION HANOVER ASSOCIATES, Plaintiff V. No. 04-3940 CALABRESE & SONS, INC., Defendant The Honorable Edgar B. Bayley ??h-? MOTION IN LIMINE AND NOW, thivV day of December, 2007, comes the Plaintiff, Hanover Associates, by and through its attorneys, Christian J. Dabb, Esquire, and CGA Law Firm, and files the following Motion in Limine for Pre-Trial ruling: Summary Statement of Facts and Procedural History Plaintiff, Hanover Associates entered a Confession of Judgment on August 10, 2004 against the Defendant, Calabrese and Sons, Inc. Said Confession of Judgment was tendered pursuant to authority provided in the Promissory Note entered into between the parties on June 7, 2004. Said Promissory note provided terms for default, which {00211449/1) included, but not limited to, failure to pay principal and interest payments to the Plaintiff. Judgment was entered in favor of the Plaintiff on August 10, 2004, in the amount of $323,569.10. The parties, collectively, attempted negotiations to resolve the outstanding balances due and owing with a resultant payment of $250,000 for judgment release of one of 2 lots that were encumbered on June 27, 2006. The parties were to resolve outstanding payments and sale of the remaining lot was to take place on or before December 31, 2006. Beginning on July 1, 2006, payments were to be made to Hanover Associates, in the amount of $5,000.00 per month, and interest was to continue to accrue. The remaining piece of real estate bound by the Judgment filed in 2004, was to be sold in to aid in the satisfaction of the overall outstanding balance owed on two separate promissory notes. After failure to provide payments on a monthly basis and failure to sell the property pursuant to agreement between the parties on December 31, 2006, the Plaintiff waited a full six (6) months, before filing a Praecipe for Writ of Execution and Notice under Pa.R.C.P. 2958.2 of Judgment and Execution thereon, and it was filed on June 6, 2007. An affidavit of service was filed on June 11, 2007. It was not until August 23, 2007 that Defendant filed any pleading relating to the propriety of the Confession of Judgment, and at that time said pleading was the Preliminary Injunction request that is the subject of the present hearing. At conference between the parties it was agreed to release the property that was scheduled for execution on September 5, 2007, in exchange for a hearing on the remaining balance owed under the Promissory Note and escrow of the funds that would result from independent sale of the property by the Defendant. Said proceeds were approximately Five Hundred and Eighty Six Thousand Dollars {00211449/1) ($586,000). An agreement was reached before this Honorable Court to attempt negotiation of the outstanding balances by the end of October, and a timeframe was created by which the parties were to exchange their documentation. Admittedly, the Plaintiff was delayed in conveyance of the information it believed would adequately resolve the balances in question, by a single week. As a result of discussions between the parties, the Parties appeared before this Honorable Court to resolve discovery schedules and determine a date certain for hearing which was scheduled for January 9t1', of 2007, and discovery was to be completed by January 4, 2007. A subsequent release of $280,000 was provided to the next subsequent lien holder, Virginia Calabrese who held a judgment in the amount of approximately Seven Hundred Thousand Dollars ($700,000.00).1 An additional $15,000.00 was agreed to by the Counsel for Plaintiff and Defendant as well as Counsel for Virginia Calabrese to cover legal fees. 1. MOTION TO PRECLUDE EVIDENCE PERTAINING TO UNDERLYING BASIS FOR CONFESSION OF JUDGMENT. a. Claim is based upon a valid judgment and a valid execution upon that judgment. Any claim involving dispute over a Confession of Judgment is governed by the Pennsylvania Rules of Civil Procedure 2950 et al. The Promissory Note that was executed between the parties retained authorization for the Confession of Judgment that was filed August 10, 2004. The Plaintiff filed a proper notice of Execution on real estate pursuant to Rule 2958.2. Defense Counsel has indicated that it intends to elicit evidence 1 Noting that the Plaintiff was assigned a second Promissory Note from the holder, Sorrel Forge, wherein the holder assigned said note (in the amount of approximately $240,000, to the Plaintiff in exchange for $100,000.00 provided to the prior Holder. Said note is sixth on the priority list of judgments that upon information and belief of counsel remain unpaid to date. {00211449/1} to challenge the underlying basis of the promissory note and subsequent judgment between the parties that remains the subject of the current litigation. To date, Defendant has not filed any contest to the Confession of Judgment other than a Preliminary Injunction request filed by Attorney Fitzsimmons to prevent the execution upon the Sheriff's Sale which was scheduled for September. Pursuant to the Rules governing Confession of Judgment, specifically, 2959 (a)(3): Petition for Relief must be filed within thirty (30) days of the Notice of Execution pursuant to Rules 2956.1 and 2973.1. Furthermore, the explanatory note appended to Rule 2958.2 indicates that a Petition for Relief must be filed to contest said Confession of Judgment as indicated under Pa.R.C.P. 2959(a)(3). In the present case, the Defendant has not filed any pleading to date, other than the aforementioned Preliminary Injunction to Stay execution upon the real estate, there is no Petition for Relief that has been filed pursuant to the Rules. As a result the merits of the Confession of Judgment should not be addressed as indicated within Pa.R.C.P. 2959. The only issue that should be present before this Honorable Court should be the balance due and owing under the Confession of Judgment, and the applicable interest to said Judgment. Any reference to the underlying merits would result in extrapolation of an extraordinary remedy for the Defendant which would permit the Defendant to address the merits going back more than three years to prior to the date of the agreed upon Confession of Judgment and Promissory Note that presumably the Defendant had retained counsel and fully understood his rights when he agreed to file a Promissory Note in the aforementioned amount. To permit the Defendant to go back to address the underlying merits of a {00211449/1} Confession of Judgment without ever filing a Petition for Relief within the proper time frame would be a violation of the Rules of Civil Procedure. II. Conclusion Wherefore, the Plaintiff respectfully requests that this Honorable Court preclude evidence pertaining to the underlying merits of the Judgment and Promissory Note and limit the present hearing to a determination of the outstanding balance as paid out by the Defendant and the propriety of interest as agreed by the Parties. Respectfully Submitted, Ct ?-< Law F' Christi . Dabb, Esquire Supreme Ct. ID # 85370 135 N. George St. York, PA 17401 {0021144911} EXHIBIT "B" \.N D C'_'NN:NC,HA.tii ORD : CUNNINGHAM Sc CHERNICQFF, P.C. " ' . 2C3E 1 E. CHERtitCCFF ATTORNEYS AT LAW ?+ ?s33 : Lr.47C :t' :+,?°'Z=G -RULE' 'AARSHAWSM PO. BOX 60 CH. N',& HY.WS HARRISBL IZG. PENNSYl``AMA 1 71L6-A57 x Xrrt c.uraaS3 &EL:.'r M. ?_MGFI' '? ti r ?r,<rr 'ELFMCNE 7" ; 238-637' June 15, 2006 VIA FAX 730-73" do REGULAR MAIL David A. Fitzsimons, Esquire c, o David W. Reagtr, Esquire Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011-4642 RE: David Fisher 1 Calabrese & Sons C&C File No. 901305 Dear David: This letter is to confirm the understanding which was reached on the telephone. The terms are as follows: 1) At closing today, W. Fisher will receive the sutra of $250,000. In exchange, he will provide a release ofhis mortgage and judgments (the "Liens") which he holds against the Calabrese & Suns property. 2) The Liens will remain Of record as to the remaining real property and as to any other assets of Calabrese. Mr. Fisher shall have a first lien position on the remaining real property of Calabrese. 3) The first lien position shalt be confirmed by an up to date title search which you will `apply. 3) The balance oi, hich is oN ed to qtr. Fisher shall L-e determined hy° a process m hereby 'c' 1^ ttYt >'.t ' i 1 xce on an XL.eper dent .wcot.,* arit 't ho tt ill rl:e *`;ur.s x:k :,:i .kfr. !' 14:1t'r, Mr. 'l` It i. tw+'4'4c it c? m 2.i1Se'l to are ne'1cci ,1tv i^ -he C'. car rhar '`le part. es !, red it ?' l s 1'A;: C .+ :1!rTi:t :s? e...:l1 :,'rl t r , +.ie%:,' initc''rv litwr, 'A Ili ' .,.tut 7 J:C .f`r`1r,"r1.11 (. _'.1t' .1i Ccrn,non fleas. 0- CUNNINGHAM & CHERNICQFF, P.C. ATTORNENS AT LAW David W. Reager, Esquire June 15, 2006 Page 2 5) For purposes of payments only, Mr. Fisher shall be deemed to have the sum of WO,000still owed to him as to the amounts owed under the two Notes and secured by the mortgage and judgments (the "Temporary Amount"). In the event the amount owed under the two (2)`rotes is determined to be other than the Temporary Amount, such Temporary Amount shall be adjusted based upon the process set forth above. Interest will accrue on the Temporary Amount at the rate of prime plus 2%. Monthly payments beginning July 1, 2006 shall be made to Mir. Fisher in the amount of $5,000 per month to be applied first to the interest at the rate of prime plus 2% on the unpaid balance of the Temporary Amount with the balance after payment to be applied to the principal on the Temporary Amount. 6) Closing on the sale ofthe remaining real property of Calabrese shall be by December 31, 2006 or default shall occur. If the foregoing is acceptable, please counter sign this letter on behalf of your client and return to me. You may inform the title company who is performing the closing that we will execute appropriate releases. I assume that they will provide me with a Release of Liens as are necessary for my review. If I need to prepare same, please let me know. Sincerely yours, UC lbd cc: David Fiiher Day id .A. Firzsimcns, E; quirc CUNNINGHAM & CHER- IICOFF, P.C. Robert E. Chernicoff CERTIFICATE OF SERVICE I hereby certify that on this 22nd day of January 2008 that a true and correct copy of the foregoing Answer to Petition to Open has been served via facsimile and first-class mail, upon the following: David F. Fitzsimons, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 717-243-1850 John R. Fenstermacher, Esquire Fenstermacher and Associates, PC The Jonas Rupp House 5115 East Trindle Road Mechanicsburg, PA 17050 717-691-5441 John M. Coles, Esquire Rhoads & Sinon, LLP One South Market Square, 12d' Floor PO Box 1146 Harrisburg, PA 17108-1146 717-252-1459 John M. Smith, Esquire Gingrich, Smith, Klingensmith & Dolan 222 South Market Street, Suite 201 PO Box 267 Elizabethtown, PA 17022 717-367-3219 CGA LAW FIRM Z---- digstian J. D )O Esquire Attorneys for Plaintiff (00214569/1) c..: "T"i c , J ---{ rte, ?-7 ? ? `?" 7 d T' . a .? ,r'? 1. ? _-j JAW ?.i? •? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW HANOVER ASSOCIATES, Plaintiff V. No. 04-3940 CALABRESE & SONS, INC., Defendant The Honorable Edgar B. Bayley PRAECIPE TO SUBSTITUTE VERIFICATION TO THE PROTHONOTARY: Please substitute the attached Verification to the Defendant's Answer to Petition to Open which was filed on or about January 22, 2008. Respectfully Submitted, CGA Law Firm Countess Gilbert Andrews, P.C. By: Chri s an J. Dabb, Esquire Attorneys for Plaintiff Supreme Court No. 85370 135 North George Street York, PA 17401 Tel: (717) 848-4900 {0021889811} a CERTIFICATE OF SERVICE I hereby certify that on this day of March :3? CI(I ) 2008 that a true and correct copy of the foregoing Praecipe to Substitute Verification has been served via facsimile and first- class mail, upon the following: David F. Fitzsimons, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 717-243-1850 John R. Fenstermacher, Esquire Fenstermacher and Associates, PC The Jonas Rupp House 5115 East Trindle Road Mechanicsburg, PA 17050 717-691-5441 CGA LAW FIRM Christian J. Dabb, Esquire Attorneys for Plaintiff Supreme Court No. 85370 135 North George Street York, PA 17401 Tel: (717) 848-4900 ?// Dated: March 3 9 2008 {0021883411} • , VERIFICATION I hereby affirm that the following facts are correct. The attached Answer to the Petition to Open is based upon information which has been furnished to counsel in the preparation of this document. The language of the Answer to the Petition to Open is that of counsel and not mine. have read the Answer to the Petition to Open and to the extent that the same is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the Answer to the Petition to Open is that of counsel, I have relied upon counsel in making this Verification. I hereby acknowledge that the averments of fact set forth in the aforesaid Answer to the Petition to Open are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities. Date: A-11 ob By: J ;-A-" David G. Fishe Hanover Associates {00215185/ l } r ?? 1 v. 4 _ ? +n ? 71 ? ? I?w 1. { ., '? ?_ 'T"1p ' ? '% f f. ' ?'°.? ?? .'?. PROPOSED ORDER AND NOW, this4 day of April, 2008, upon consideration of the Plaintiff and IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION HANOVER ASSOCIATES, Plaintiff V. No. 043940 CALABRESE & SONS, INC., Defendant The Honorable Edgar B. Bayley Defendant's mutual agreement and Stipulation, it is hereby ORDERED and DECREED that: a) Calabrese and Sons, Inc. and Hanover Associates (collectively the "Parties") have agreed that $220,000.00 of the escrowed funds currently retained shall be released to Hanover Associates as the first lien holder in satisfaction of its first in line Note and Judgment, and remit the remainder of the balance in escrow to Virginia Calabrese as the next subsequent lien holder; b) The action docketed at 07-4085 be marked settled and discontinued with prejudice, and the actions docketed at 07-1040 and 07-4086 in the Court of Common Pleas for Cumberland County, will be marked settled and discontinued with prejudice. C) As part of the settlement of the above listed Replevin Actions, Calabrese and Sons, Inc. will permit the removal of the equipment that is subject to the above reference replevin litigation, and Calabrese and Sons will permit the removal and loading of said equipment onto the trucks supplied by Hanover Associates (rigging insurance, riggers, and all equipment necessary to remove the machines will be supplied by the Plaintiff). Said removal to occur within thirty (30) days of this Order. d) The Parties shall not commence any action pertaining to the remaining Sorrel Forge Note that is currently retained by Hanover Associates, prior to June 15, 2008. e) The remainder of the escrow is to be released to Virginia Calabrese a e next subsequent lien holder, and a calculation of said balanc . to ed to the Plaintiff for the purpose of tracking the balance out t equent lien holder. B THE COU J. $ 7 rte?(( ?? F^?1 .. • J- ?•?. CY w_ cz ..t. C7 Q. ct O IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION HANOVER ASSOCIATES, Plaintiff V. No. 04-3940 CALABRESE & SONS, INC., Defendant The Honorable Edgar B. Bayley STIPULATION AND NOW, this day of April, 2008, the Plaintiff, Hanover Associates and the Defendant, Calabrese and Sons, Inc. hereby stipulate as follows: 1. The Plaintiff and Defendant, (collectively "the Parties") agree to the release of $220,000.00 to Hanover Associates from the escrowed funds that are the subject of the current litigation. 2. In exchange the Plaintiff will release its current judgment action pertaining to the first judgment note which is the subject of the above captioned action. 3. In addition, the Plaintiff will release and discontinue its remaining actions captioned at 07-4085, 07-4086 and 07-1040. 4. The release and discontinuance of the 07-1040 replevin action listed in Paragraph 3 above, will require that the Defendant will permit the removal and loading of a Tinius Olsen Electromatic Torsion Testing Machine with a serial number of 51126. Plaintiff will provide the trucks upon which the machines will be loaded, and Plaintiff will also provide riggers, rigging insurance and all equipment necessary to remove the machines. 5. The release and discontinuance of action docketed at 07 - 4086 will require that the Defendant will permit the removal and loading of a Lodge and Shipley (002216931I) y- i ?? Lathe with a serial number of 550100. Plaintiff will provide the trucks upon which the machines will be loaded, and Plaintiff will also provide riggers, rigging insurance, and all equipment necessary to remove the machines. This Stipulation and ultimate Court Order will in no way affect the rights and remedies of either party as it relates to the Plaintiff's second note - involving the Sorrel Forge Assignment. The Parties agree that said equipment will be removed within thirty (30) days of Court Order that confirms present stipulation. Otherwise, the Defendant will be entitled to storage fees for retaining said property. The Plaintiff agrees to stay any action as it relates to the Sorrel Forge Note/Judgment until after June 15, 2008. WHEREFORE, the Parties would respectfully request that this Honorable Court enter an Order consistent with said stipulation. Respectfully Submitted, CGA L F' m hristian J. abb, Esquire Supreme Court I.D. # 85370 135 North George St. York, PA 17401 (717) 848 -4900 Fax: (717) 843 - 9039 v Seth T. Mosebey, Es4Gire Supreme Court I.D. #203046 Martson Deardorff Williams Otto Gilroy & Faller 10 East High Street Carlisle PA 17013 Telephone (717) 243-3341 Facsimile (717) 243-1850 (0022168)11) CGA LAW FIRM Christian J. Dabb, Esquire Supreme Court I.D. No. 85370 135 N. George St. York, PA 17401 717-848-4900 717-843-9039 fax Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW HANOVER ASSOCIATES, Plaintiff V. CALABRESE & SONS, INC., Defendant No. 04-3940 The Honorable Edgar B. Bayley PRAECIPE FOR WITHDRAW AND ENTER APPEARANCE OF COUNSEL TO THE PROTHONOTARY: Please withdraw my appearance on behalf of Defendant, Calabrese & Sons, Inc. in the above-captioned matter. CGA LAW FIRM i _ ?hristian-J,Aa-bb, Esquire Supreme Court No. 85370 Please enter the appearance of Glenn J. Smith, Esquire as Counsel for the defendant, in the above-captioned matter. i enn J. 11 Esquire Supreme Court No.- 25 (00222091/1) CERTIFICATE OF SERVICE I hereby certify that on this 4th day of April, 2008, a true and correct copy of the foregoing Entry of Appearance have been served, via first-class mail, postage prepaid, upon the following: Seth T Moseby, Esquire MARTSON DEADORFF WILLIAMS OTTO GILROY & FALLER 10 East High Street Carlisle, PA 17013 717-243-1850 John R. Fenstermacher, Esquire FENSTERMACHER AND ASSOCIATES, PC The Jonas Rupp House 5115 East Trindle Road Mechanicsburg, PA 17050 717-691-5441 Ruth Kissinger, (00222091/1) Glenn J. Smith, Esquire CO r allERIFF'S OFFICE OF CUMBERLAND COUNTY R Thomas Kline Sheriff Ronny R Anderson Chief Deputy Jody S Smith Civil Process Sergeant Edward L Schorpp Solicitor '8 QV T?'? 2Q09 X44 20 N ?? G$ Hanover Associates vs. Calabrese & Sons Inc. Case Number 2004-3940 SHERIFF'S RETURN OF SERVICE 11/10/2009 Megan Marlow, Deputy Sheriff, who being duly sworn according to law, states that on 7118/07 at 1029 hours, she posted.a true copy of the within Real Estate Writ, Notice, Poster and Description, in the above entitled action, upon the property of Calabrese & Sons, Inc., located at, 406 Brandy Lane, Mechanicsburg, Cumberland County, Pennsylvania according to law. 11/10/2009 Michael Barrick, Deputy Sheriff, who being duly sworn according to law, states that on 6/18/07 at 1617 hours, he served a true copy of the within Real Estate Writ, Notice and Description, in the above entitled action, upon the within named defendant, to wit: Joseph Calabrese, Vice President, by making known unto, Joseph Calabrese, Vice President, at, 406 Brandy Lane, Mechanicsburg, Cumberland County, Pennsylvania its contents and at the same time handing to him personally the said true and correct copy of the same. 11/20/2009 R. Thomas Kline, Sheriff, who being duly sworn according to law, states this writ is returned STAYED, per letter of instruction from Kathleen Moyer, paralegal for CGA Law Firm. SHERIFF COST: $132.86 SO ANSWERS, November 20, 2009 R THOMAS KLINE, SHERIFF S ya o8? (c CounrySu!te heri?i Tei;;seft. hx;. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION HANOVER ASSOCIATES, Plaintiff V. CALABRESE & SONS, INC., Defendant Calabrese & Sons, Inc. AFFIDAVIT PURSUANT TO Pa. R.C.P. 3129.1 CHRISTIAN J. DABB, ESQUIRE, counsel for plaintiff, in the above action, sets forth as of the date the praecipe for the writ of execution was filed the following information concerning the real property located at: Brandy Lane, Parcel I.D. #10-22-0521-015, partly in Mechanicsburg Borough and partly in Hampden Township, Cumberland County, Pennsylvania. I . Name and address of Owner(s) or Reputed Owner(s): Name 2 3 Confessed Judgment U - File No. 04-" Address 406 Brandy Lane Mechanicsburg, PA 17055 Name and address of Defendant(s) in the judgment: Name Calabrese & Sons, Inc. Address 406 Brandy Lane Mechanicsburg, PA 17055 Name and last known address of every judgment creditor whose judgment is a record lien on the real property to be sold: Name Danko Arlington, Inc. Hanover Associates Virginia Calabrese Address 4800 Wabash Avenue Baltimore, MD 21215 311 East Elmwood Avenue Mechanicsburg, PA 17055 418 East Elmwood Avenue Mechanicsburg, PA 17055 {00194977,1) • WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) NO 04-3940 Civil COUNTY OF CUMBERLAND) CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due HANOVER ASSOCIATES, Plaintiff (s) From CALABRESE & SONS, INC., (1) You are directed to levy upon the property of the defendant (s)and to sell SEE LEGAL DESCRIPTION. (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of GARNISHEE(S) as follows: and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof; (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due$323,569.10 Interest $83,914.10 Atty's Comm % $5,000.00 Atty Paid $51.00 Plaintiff Paid Date: JUNE 6, 2007 L.L. $.50 Due Prothy $2.00 Other Costs (Seal) Deputy REQUESTING PARTY: Name CHRISTIAN J. DABB, ESQUIRE Address: CGA LAW FIRM 135 NORTH GEORGE STREET YORK, PA 17401 Attorney for: PLAINTIFF Telephone: 717-8484900 Supreme Court ID No. 85370 (wl Real Estate Sale # 56 On June 13, 2007 the Sheriff levied upon the defendant's interest in the real property situated partly in Mechanicsburg Borough and partly in Hampden Township, Cumberland County, PA known and numbered as Brandy Lane, Parcel I.D. # 10-22-0521-015, Mechanicsburg, more fully described on Exhibit "A" filed with this writ and by this reference incorporated herein. Date: June 13, 2007 By: i dJ Real Estate Sergea?it -? _ . l PROOF OF PUBLICATION OF NOTICE IN CUMBERLAND LAW JOURNAL (Under Act No. 587, approved May 16, 1929), P. L.1784 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND SS. Lisa Marie Coyne, Esquire, Editor of the Cumberland Law Journal, of the County and State aforesaid, being duly sworn, according to law, deposes and says that the Cumberland Law Journal, a legal periodical published in the Borough of Carlisle in the County and State aforesaid, was established January 2, 1952, and designated by the local courts as the official legal periodical for the publication of all legal notices, and has, since January 2, 1952, been regularly issued weekly in the said County, and that the printed notice or publication attached hereto is exactly the same as was printed in the regular editions and issues of the said Cumberland Law Journal on the following dates, viz: July 20, July 27, and August 3, 2007 Affiant further deposes that he is authorized to verify this statement by the Cumberland Law Journal, a legal periodical of general circulation, and that he is not interested in the subject matter of the aforesaid notice or advertisement, and that all allegations in the foregoing statements as to time, place and character of publication are true. Lisa Marie Coyne, Edi SWORN-0 AND SUBSCRIBED before me this day of August, 2007 1?7 7 Notary NOTARIAL SEAL DEBORAH A COLLINS Notary Public CARLISLE BORO, CUMBERLAND COUNTY My COmMWW Expires Apr 28, 2010 Writ No. 2004-3940 Civil Hanover Associates vs. Calabrese & Sons Inc. Atty.: Christian J. Dabb DESCRIPTION ALL THOSE TWO CERTAIN adja- cent tracts or parcels of land, situate partly in the Borough of Mechanics- burg and partly in the Township of Hampden, bounded and described as follows: PARCEL NO. I-ALL THAT CER- TAIN Lot of Ground situate in the Borough of Mechanicsburg, County of Cumberland and State of Penn- sylvania, more particularly bounded and described as follows, to wit: BEGINNING at a point in the cen- ter line of Brandy Lane at corner of land now or formerly of R.D. Leahy; thence along the line of said land now or formerly of R.D. Leahy, the same being along the Western line of Lot Nos. 39,40,41,42, 43 and 44 on the Plan of Curtis Fry, which said Plan is recorded in the Cumberland County Recorder's Office in Plan Book No. 3, at Page , South 47 B ass 15 min- utes East, 275.2 feet, mere or less, to a concrete monument in the line of other lend of the grantors herein, now or Ab6?tat to be conveyed to the grantee herein, being Parcel No. 2 hereinafter described; thence along the line of the said other land of the grantors herein, and being Parcel NO.2 herein, South 42 degrees West, 5503 feet to an iron pin at the corner of land now or formerly of Marlin L. Fry, North 47 degrees 15 minutes West, 275.72 feet, more or less, to a point in the center line of Brandy Lane, aforesaid; thence along the center line of Brandy Lane, North 42 degrees 45 minutes East, 55.00 feet, more or less, to a point and place of BEGINNING. PARCEL NO. 2-ALL THAT CER- TAIN tract of land situate partly in the Borough of Mechanicsburg and partly in the Township of Hamp- den, County of Cumberland, State of Pennsyhwua, bounded and de- scribed as follows, to wit: BEGINNING at a point marked by a concrete monument at coaster of Parcel No. I hereinabove described; thence extending along the South- easterly line of Parcel No. 1 herein, South 42 degrees West, 55.03 feet to an iron pin at corner of land now or formerly of Marlin Fry, being also a corner of other land of M.P. Ca- labrese and Virginia L. Calabrese, his wife; thence along the line of said other land of M.P. Calabrese and Virginia L. Calabrese, his wife, South 47 degrees 15 minutes East, 22.43 feet, more or less, to a point thence continuing along the line of said other land of M.P. Calabrese and Virginia L. Calabrese, his wife, North 44 degrees 03 minutes 59 seconds East, 478.67 feet, more or less, to an iron pin; thence still along the line or said other land of M.P. Calabrese and Virginia L. Calabrese, his wife, South 29 degrees 41 minutes 08 seconds East, 886.65 feet, more or less, to an iron pin in the line of land of the United States of America, presently used as a Novel Supply Depot, Noa-th 69 dagrsss 01 minutes 38 seconds East, 300.00 feet, more or less, to a point markea oy a concrete monu- ment; thence continuing along the line of said Land of the United States of America, North 28 degrees 24 min- utes 59 seconds West, 1,080.42 feet to a point marked by a pipe in the line of land now or formerly of Curtis Fry; thence along the line of said land now or formerly of Curtis Fry, South 42 degrees West, 338. 16 feet, more or less, to a point marked by a concrete monument; thence along the line of land of the same, South 42 degrees 55 minutes 46 seconds West, 435.60 feet, more or less, to a point in the Easterly line of Parcel No. 1, here- inabove described; thence along the Easterly line of Parcel No. 1, South 47 degrees 15 minutes East, 7.23 feet, more or less, to a point marked by a concrete monument at corner of Parcel No. 1 herein, at the point and place of BEGINNING. BEING the same premises which M.P. Calabrese and Virginia L. Cala- brese, by their deed dated September 3, 1984 and recorded in the Cum- berland County Recorder's Office in Deed Book "X," Volume 30, Page 662, granted and conveyed unto Calabrese and Sons, Inc., a Pennsylvania cor- poration. THE PATRIOT NEWS THE SUNDAY PATRIOT NEWS Proof of Publication Under Act No. 587, Approved May 16, 1929 Commonwealth of Pennsylvania, County of Dauphin) ss Shannon D. Billhime, being duly sworn according to law, deposes and says: That she is a Staff Accountant with The Patriot News Co., a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, with its principal office and place of business at 812 to 818 Market Street, in the City of Harrisburg, County of Dauphin, State of Pennsylvania, owner and publisher of The Patriot- News and The Sunday Patriot-News newspapers of general circulation, printed and published at 812 to 818 Market Street, in the City, County and State aforesaid; that The Patriot-News and The Sunday Patriot-News were established March 4th, 1854, and September 18th, 1949, respectively, and all have been continuously published ever since; That the printed notice or publication which is securely attached hereto is exactly as printed and published in their regular daily and/or Sunday/ Metro editions which appeared in the 18th and 25th day(s) of July and the 1st day(s) of August 2007. That neither he nor said Company is interested in the subject matter of said printed notice or advertising, and that all of the allegations of this statement as to the time, place and character of publication are true; and That he has personal knowledge of the facts aforesaid and is duly authorized and empowered to verify this statement on behalf of The Patriot-News Co. aforesaid by virtue and pursuant to a resolution unanimously passed and adopted severally by the stockholders and board of directors of the said Company and subsequently duly recorded in the office for the Recording of Deeds in and for said County of Dauphin in Miscellaneous Book "M", Volume 14, Page 317. PUBLICATION COPY SALE #56 Sworn to and subscribed beforlgp Nahm Mbd a# Of MY Hai or, Peansylranls Agostsrsn _NOTARY PUBLIC CUMBERLAND COUNTY SHERIFF'S OFFICE CUMBERLAND COUNTY COURTHOUSE CARLISLE, PA. 17013 **^ I gPW.K) 00 Real Estate Sale No. 56 Writ No. 2004.3940 Civil Term Hanover Associates VS Calabrese. & Sons Inc. Atty. Christian J. Dabb DESCRIPTION ALL THOSE TWO C£,4TAIN adjacent tracts or parcels of land situate pertly in the Borough of Mechanicsburg and part, in the Township of Hampden, bounded and described as follows: PARCEL NO. I ALL THAT CERTAIN Lot of Ground situate in the Borough of Mechanicsburg, County of Cumberland and State of Pennsylvania, more particularly bounded and described as follows, to wit: BEGINNING at a point in the center line of Brandy Lane at comer of land now or formerly of R.D. Leahy; thence along the he of said land now or formerly of R.D. Leahy, the same being along the Western line of Lot Nos. 39,40,41,42, 43 and 44 on the Plan of Curtis Fry, which said Plan is recorded in the Cumberland County Recorder's Office in Plan Book No. 3, at Page 92, South 47 degrees 15 minutes East, 275.2 feet, more or less, to a concrete monument in the line of other land of the grantors herein, now or about to be conveyed to the grantee herein, being Parcel No. 2 hereinafter described; thence along the line of the said other land of the grantors herein, and being Parcel NO. 2 herein, South 42 degrees West, 55.03 feet to an iron pin at the comer of land now or formerly of Marlin L. Fry, North 47 degrees 15 minutes West, 275.72 feet, more or less, *o a point in the center line of Brandy Lane, aforesaid; thence along the center line of Brandy Lane, North 42 degrees 45 minutes East, 55.00 feet, more or less, to a point and place of BEGINNING. PARCEL. NO.2 - ALL THAT CERTAIN tract of land situate partly in the Borough of Mechanicsburg and partly in the Township of Hampden, County of Cumberland, State of Pennsylvania, bounded and described as follows, to wit: BEGINNING at a point marked by a concrete monument at corner of Parcel No. I hereinabove described; thence extending along the Southeasterly he of Parcel No. I herein, South 42 degrees West, 55.03 feet to an iron pin at corner of land now or formerly of Marlin Fry, being also a comer of other land of M.P. Calabrese and Virginia L. Calabrese, his wife; thence along the line of said other land of M.P. Calabrese and Virginia L. Calabrese, his wife, South 47 degrees 15 minutes East, 22.43 feet, more or less, to a point thence continuing along the line of said other land of M.P. Calabrese and Virginia L. Calabrese, his wife, North 44 degrees 03 minutes 59 seconds East, 478.67 feet, more or less, to an iron pin; thence still along the, line or said other land of M.P. Calabrese and Virginia L. Calabrese, his wife, South 29 degrees 41 minutes 08 seconds East, 886.65 feet, more or less, to an iron pin in the line of land of the United States of America, presently yusas01 Naval Supply Depot, degrees minutes 38 seconds East, 300.00 feet, more or less, to a point marked by a concrete monument:. thence continuing along the line of said land of the United States of America, North 28 degrees 24 minutes 59 seconds West, 1,080.42 feet to a point marked by a pipe in the line of land now or formerly of Curtis Fry; thence along the line of said land now or formerly of Curtis Fry, South 42 degrees West, 338. 16 feet, more or less, to a point marked by a concrete monument; thence along the line of land of the same, South 42 degtaes 55 minutes 46 seconds West, 435.60 feet, molt or less, to a point in the Fasterly lice of Parcel No. L'bercinabove described; thence along the Easterly lime of Parcel No. 1, South 47 degrees 15 minutes East, 7.23 feet, more or less, to a point marked by a concrete monument at comer of Parcel No. 1 herein, at the point and place of BEGINNING. BEING the same premises which MY.. Calabrese and Virginia L. Calabrese, by their deed dated September 3, 1984 and recorded in the Cumberland County Recorder's Office in Deed Book "X;" Volume 30, Page 662, granted and conveyed unto Calabrese and Sons, Inc., a Pennsylvania corporation.