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Home My WebLink About11-5352SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson ciLt-C Sherd 4tt,t,of a au+brr, v1' rjjP PPzOTH Tjj y Jody S Smith Chief Deputy 2311 JUL 20 PM 1: 57 Richard W Stewart Solicitor CUMBERLAND COUNT', PENNSYLVANIA Metro Bank vs. Penninsula, Inc. Case Number 2011-5352 SHERIFF'S RETURN OF SERVICE 07/01/2011 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: Penninusla, Inc. d/b/a Peninsula, Inc., but was unable to locate them in his bailiwick. He therefore deputized the Sheriff of York County, ennsylvania to serve the within Complaint In Confession of Judgment and Notice according to law. 07/07/2011 03:45 PM - York County Return: And now July 7, 2011 at 1545 hours I, Richard P. Keuerleber, Sheriff of York County, Pennsylvania, do hereby certify and return that I served a true copy of the within Complaint in Confession of Judgment, upon the within named defendant, to wit: Penninsula, Inc. by making known unto Ronnie Rider, Office Secretary/ Administrative Assistant for Penninsula, Inc. at 101 US Route 15 South, Dillsburg, Pennsylvania 17019 its contents and at the same time handing to her personally the said true and correct copy of the same. SHERIFF COST: $37.44 July 18, 2011 SO ANSWERS, RON R ANDERSON, SHERIFF SHERIFF'S OFFICE OF YORK COUNTY Richard P Keuerleber Sheriff Reuben B Zeager Chief Deputy, Operations PETER J. MANGAN, ESQ. Solicitor Richard E Rice, II Chief Deputy, Administration METRO BANK F/K/A COMMERCE BANK/ HARRISBURG, N.A. vs. PENNINSULA, INC., d/b/a PENINSULA, INC. Case Number 11-5352 CIVIL SHERIFF'S RETURN OF SERVICE 07/07/2011 03:45 PM - DEPUTY TERRY DRAWBAUGH, BEING DULY SWORN ACCORDING TO LAW, SERVED THE REQUESTED COMPLAINT IN CONFESSION OF JUDGMENT (CONF JUDG) BY HANDING A TRUE COPY TO A PERSON REPRESENTING THEMSELVES TO BE RONNIE RIDER, OFFICE SECRETARY / ADMINISTRATIVE ASSISTANT, WHO ACCEPTED AS "ADULT PERSON IN CHARGE" FOR PENNINSULA, INC., D/B/A PENINSULA, INC. AT 101 US ROUTE 15 SOUTH, DILLSBURG, PA 17019. SHERIFF COST: $47.98 July 13, 2011 A Al- zgiat!w4? TERRY DRAWBAUGH, DEPUTY SO RS, RICHARD P K UERLEBER, SHERIFF --- ------ - -------- ------------------- - -------------------------- --- COMMON04EALTHOFPEWSnVANIA------------ NOTARY Affirmed and subscribed to before me this NOTARIAL SEAL LISA L. THO E OT RY 13TH day of JULY 2011 I Y F Y Y N M I I f1c) CountySute Shenff. Teleosoft, Inc. -FILED-OFFICE i = THE PUTHOfHOTARY 20, 11 AUG -4 PM 4: U2 "LIMBERLAND CGL,11 f `? I?ENNSY!_ AIIIA Dusan Bratic, Esq. Bratic & Portko 101 South US Route 15 Dillsburg, PA 17019 (717) 432-9706 (717) 432-9220 Fax METRO BANK, f/k/a Commerce Bank/Harrisburg, N.A. Plaintiff V. PENNINSULA, INC. d/b/a Peninsula , Inc. Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 11-5352 CIVIL PETITION TO OPEN JUDGMENT AND REQUEST FOR STAY OF PROCEEDINGS AND NOW, comes the Petitioner/Defendant, PENNINSULA, INC. ("Petitioner"), by and through its counsel, Bratic and Portko, and submits this Petition to Open Judgment and Request for Stay of Proceedings and in support thereof avers as follows: I. BACKGROUND 1. Petitioner is PENNINSULA, INC., a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, and maintaining a registered office at 101 South US Route 15, Dillsburg, PA 17019. Penninsula Inc. is the Defendant in the above captioned matter. 2. Respondent is Metro Bank ("Respondent"), a Pennsylvania Financial Institution organized and existing under the laws of Commonwealth of Pennsylvania, and maintaining a principal place of business at 3801 Paxton Street, Harrisburg, PA 17111. The Respondent is the Plaintiff in the above-captioned matter. 3. Petitioner seeks to evoke the equitable and discretionary powers of this Honorable Court to open that certain Judgment entered in this Court on or about June 30, 2011 at docket number 11-5352 Civil (the "Judgment"). 4. On or about June 30, 2011, Respondent filed a Complaint in Confession of Judgment under Pa.R.C.P. 2951 (the "Complaint") in addition to a Praecipe for Assessment of Damages in the amount of $258,641.78 with this Honorable Court against Petitioner. 5. The basis for the Complaint is the purported breach by Petitioner of a promissory mortgage note (the "Contract") signed on behalf of Petitioner alleging that the sum of $227,879.20 in principal remains outstanding from Petitioner to Respondent. The Contract contains a clause which purports to authorize Respondent to confess judgment against the signing party in the event of a breach thereof. 6. Petitioner believes, and therefore avers, that certain payments have been made under the Contract that have not been credited against the alleged liability of the Petitioner. Therefore, Petitioner submits there is a bona fide dispute as to the amounts owed under the Contract by Petitioner. 7. Petitioner believes, and therefore avers, that late charges assessed by Respondent were not due or overcharged. Therefore, Petitioner submits there is a bona fide dispute as to the amounts owed by Petitioner. 8. Petitioner believes, and therefore avers, that certain interest charges were overstated and that a credit may be due. 9. Furthermore, Petitioner believes, and therefore avers, that the attorney's collection fee is unreasonable as a matter of law, and that Respondent is not entitled to such a fee. 10. For the aforementioned reasons, Petitioner has meritorious defenses to the Complaint. II. PETITION TO OPEN JUDGMENT 11. Defendant hereby incorporates Paragraphs 1 through 10 as if fully set forth herein. 12.A Petition to Open Judgment is addressed to the equitable powers of the Court and is a matter of judicial discretion. The Court will exercise this discretion when the Petition has been promptly filed and a meritorious defense can be shown. See generally Schultz v. Erie Ins. Exchange 505 Pa. 90, 93, 477 A.2d 471, 472 (1984) citing Balk v. Ford Motor Co. 446 Pa. 137, 140, 285 A.2d 182 (1971). 13. In the current matter, the Instant Petition to Open was filed with this Court promptly after receiving Notice of entry of Judgment. 14.A meritorious defense to the Complaint can be shown, as more fully set forth in this Petition, primarily that interest credits, late charges and attorney's collection fee purported to be due and owing is meritoriously disputed. 15. The Petitioner has significant equity in the property and continues to make payments on the loan. 16. This Court should exercise its equitable discretion to open the Judgment so as to allow Petitioner's meritorious defenses to be heard. Ill. REQUEST FOR STAY OF PROCEEDINGS 17. Defendant hereby incorporates Paragraphs 1 through 16 as if fully set forth herein. 18. Respondent has obtained the Judgment by confession. 19. The Judgment, for reasons stated above, should be opened to allow the Court to determine the meritorious defenses of the Petitioner. 20. Failure to stay all matters, including without limitation, any levy or attachment, would cause the Petitioner to incur unnecessary expense and unnecessary harm when in fact the Petitioner has significant and substantial equity in the property. 21. The harm that Petitioner would sustain far outweighs any potential injury that would be incurred by the Respondent as a result of this stay of all proceedings until this Petition is heard. WHEREFORE, Petitioner Progress Avenue Limited Partnership hereby respectfully requests this Honorable Court open the judgment docketed to 11-5352 Civil so as to permit Petitioner's meritorious defenses to be heard, and that this Honorable Court stay all proceedings in the interim. Furthermore, Petitioner respectfully requests this Honorable Court grant it such further relief as is just and proper. Respectfully SVbmitted: Date. Lo/? Dusan Bratic, Esq., ID 19249 Bratic & Portko 101 South US Route 15 Dillsburg, PA 17019 (717) 432-9706 Attorney for Petitioner/Defendant VERIFICATION 1, Dusan Bratic, hereby acknowledge that I am the Petitioner in the foregoing Petition, that I have read the foregoing, and the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Dusan'Bratic, Pres. Penninsula Inc. Date. `? ?? Dusan Bratic, Esq. Bratic & Portko 101 South US Route 15 Dillsburg, PA 17019 (717) 432-9706 (717) 432-9220 Fax METRO BANK, f/k/a Commerce Bank/Harrisburg, N.A. Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 11-5352 CIVIL PENNINSULA, INC. d/b/a Peninsula , Inc. Defendant CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above Petition to Open Judgment and Request to Stay Proceedings was furnished by first class mail, postage prepaid on this 4c" day of August 2011, to: Heather Z. Kelly, Esq. Mette, Evans & Woodside 3401 North Front St. P.O. Box 5950 Harrisburg, PA 17110-0950 BRATIC & PORTKO Dated: Dusan Bratic, Esq. ID # 19249 101 South U.S. Route 15 Dillsburg, PA 17019 (717) 432-9706 Attorney for Defendant/Petitioner 0 METRO BANK, f/k/a Commerce Bank/Harrisburg, N.A. Plaintiff V. PENNINSULA, INC. d/b/a Peninsula , Inc. Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 11-5352 CIVIL cl C: rn c7 °r} l.? 7 -ft CJ`i RULE TO SHOW CAUSE AND NOW, this /!0-11- day of azzw4_, 2011, it is hereby ORDERED that, 61- 1. A Rule is issued upon Respondent to show cause, if any it has, why the Judgment entered in the above-captioned matter should not be opened and the defenses of the Petitioner be permitted; 2. The Respondent shall file an Answer to the Petition to Open Judgment within ea0 _ days from the days of service upon the Respondent; 3. The Petition shall be decided under Pa.R.C.P. 206.7; 4. Depositions shall be completed within 66 days of this date; 5. Argument shall be held on z??Qti a1 , 20i l in Courtroom No. of the Co my Courthouse;. 0--t 02 % 0-0/10/n. 6. Notice of the entry of this Order shall be provided to all parties by the Petitioner; and 7. All proceedings, including all executions on the judgment docketed hereto are stayed pending this Court's review and determination of the Petition to Open Judgment and rulings thereon and the entry of an Order dissolving such Stay. Distribution List: Prothonotary ? Dusan Bratic, Esq. 101 South US Route 15, Dillsburg, PA 17019 Heather Kelly, Esq. Mette, Evans & Woodside, 3401 N. Front St., PO Box 5950, C/ Harrisburg, PA 17110-0950 4`88/?Iro? t ?, `r11A;"? 251",M11:27 '°NDERLAIND COUNTY ul.aNSyLVANIA METTE, EVANS & WOODSIDE Heather Z. Kelly, Esquire Sup. Ct. ID No. 86291 3401 N. Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Facsimile hzkelly@mette.com Attorneys for Plaintiff METRO BANK, f/k/a COMMERCE BANK/HARRISBURG, N.A., Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 11-5352-CIVIL V. PENNINSULA, INC, d/b/a Peninsula, Inc., Defendant MOTION FOR EXTENSION OF TIME Plaintiff, Metro Bank f/k/a Commerce Bank/Harrisburg, N.A., by their counsel, Mette, Evans & Woodside, files the following Motion for Extension of Time of the August 16, 2011 Rules to Show Cause and aver in support: 1. On August 16, 2011, the Honorable Court issued a Rule to Show Cause with regard to the above-referenced matter. 2. Counsel for the parties are actively engaged in negotiations in an attempt to settle the above-referenced action. 542070v1 In an effort to contain costs of litigation, counsel for the parties jointly request an extension of time of the deadlines contained in the August 16, 2011 Rule to Show Cause as follows: a. The deadline for Plaintiff to file an Answer to the Petition to Open Judgment is extended to September 30, 2011. b. The deadline for taking depositions, if sought, is October 16, 2011 C. As previously scheduled, argument shall be held on October 21, 2011, in Courtroom No. 4 of the Cumberland County Courthouse at 2:00 p.m. 4. Counsel for the Defendant, Penninsula, Inc. d/b/a Peninsula, Inc., does not oppose this Motion. WHEREFORE, Plaintiff, Metro Bank, f/k/a Commerce Bank/Harrisburg, N.A. respectfully requests this Honorable Court enter an Order extending the deadlines of the August 16, 2011 Rule to Show Cause. Respectfully submitted, METTE, EVANS & WOODSIDE By: /?- ?-? ? 1 -'?- k- m r /' HEATHER Z. KE 'Y, ESQ IRE Sup. Ct. I.D. No. 86291 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax Attorneys Plaintiff, Metro Bank f/k/a Commerce Bank/Harrisburg, N.A. Date: August 24, 2011 2 CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Dusan Bratic, Esquire BRATIC and PORTKO 101 South Office Center, Suite A 101 South U.S. Route 15 Dillsburg, PA 17019 Respectfully submitted, METTE, EVANS & WOODSIDE r By: HEATHER Z. K LY, ESQ RE Sup. Ct. I.D. No. 86291 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax Attorneys Plaintiff, Metro Bank f/k/a Commerce Bank/Harrisburg, N.A. Date: August 24, 2011 METRO BANK, f/k/a COMMERCE BANK/ HARRISBURG, N.A., Plaintiff V PENNINSULA, Inc., d/b/a PENINSULA, Inc., Defendant METRO BANK, f/k/a COMMERCE BANK/ HARRISBURG, N.A., Plaintiff V JOHN T. KOCHER, Defendant METRO BANK, f/k/a COMMERCE BANK/ HARRISBURG, N.A., Plaintiff V PA MANOR, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 2011-5352 CIVIL TERM ? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 2011-5361 CIVIL TERM IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA..-, CIVIL ACTION - LAWS 2011-5356 CIVIL TERM=' c-a IN RE : ENTRY OF APPEARANCE ORDER OF COURT AND NOW, this 21st day of October, 2011, the court notes the entry of an appearance of Dusan Bratic, Esquire, on behalf of John T. Kocher, PA Manor, Inc., and Peninsula, Inc. This order is entered with the understanding that Mr. Bratic will file written appearances in these cases within seven days. By the Court, n Heather Z. Kelly, Esquire For the Plaintiff Dusan Bratic, Esquire For the Defendants Copies ??d 101a4h( Hess, P. J. :bg Dusan Bratic, Esq. Bratic & Portko 101 South US Route 15 Dillsburg, PA 17019 (717) 432-9706 (717) 432-9220 Fax METRO BANK, f/k/a Commerce Bank/Harrisburg, N.A. Plaintiff V. PENNINSULA, INC. d/b/a Peninsula, Inc. Defendant C!?I(? T26 AN II- ,: r ',?'tc? L??F D CQU o 'a'' PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 11-5352 CIVIL PRAECIPE FOR ENTRY OF APPEARANCE Please enter the appearance Dusan Bratic, Esquire, of the law firm of Bratic and Portko, on behalf of the Defendant. Br Date: )& " Dusan Bratic, Esquire, ID 19249 101 South U.S. Route 15 Dillsburg, PA 17019 (717) 432-9706 Attorney for Defendant CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above Praecipe to Enter Appearance was furnished by first class mail, postage prepaid on this a5v""day of October 2011, to: Heather Z. Kelly, Esq. Mette, Evans & Woodside 3401 North Front St. P.O. Box 5950 Harrisburg, PA 17110-0950 BRATIC & PORTKO Dated: )b - )- ?- W Duso Bratic, Esq. ID # 19249 101 South U. S. Route 15 Dillsburg, PA 17019 (717) 432-9706 Attorney for Defendant