HomeMy WebLinkAbout11-8316C,/))
SERRATELLI, SCHIFFMAN & BROWN, P. C. ,
Paige Macdonald-Matthes, Esquire 1
h ?..8
Supreme Court ID No. 66266 =-?
2080 Linglestown Road
Harrisburg, PA 17110 2 rn
- g;
(717) 540-9170
(717) 540-5481 facsimile _ ='-n
Email: PMacdonald-Matthesna.ssbc-law.com
Attorneys for Plaintiff, Brandon C. Powers ..
BRANDON C. POWERS, : IN THE COURT OF COMMON PLEAS
. CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFF ,
V. ,
DOCKET No. -316 0,,vilTerwx
VERONICA G. AREVALO AND VARONIo D. CIVIL ACTION-LAW
HERNANDEZ ,
DEFENDANTS
CONFESSION OF JUDGMENT FOR MONEY
Pursuant to the authority contained in the warrant of attorney, a copy of which is attached
to the Complaint filed in this action, I appear for DEFENDANTS and confess judgment in favor
of the Plaintiff and against the Defendants as follows:
5/8/2011 ASSET PURCHASE AGREEMENT ("APA")
June 2011- $1,650.00
July 2011- 1,650.00
August 2011- 1,650.00
September 2011- 1,650.00
October 2011- 1,650.00
$8,250.00
PLUS
Attorney's Commission 1,000.00
TOTAL DUE UNDER APA $9,250.00, plus amounts advanced by
Plaintiff in collection of the Debt pursuant to the terms of the APA,
reasonable attorney's fees and costs.
*a7, 50 PA p1TY
Of 5a 07
P# a"7f5
Oo4tbe
5/8/2011 AGREEMENT OF SUBLEASE ("AOS")
Rent for October 2011- $3,240.00
Utilities
Past Due Trash (Pro-rated) 977.29
Past Due Water and Sewer (Pro-rated) 640.21
$4,857.50
PLUS
Attorney's Commission (10%) 485.75
TOTAL DUE UNDER AOS $5,343.25, plus amounts advanced by
Plaintiff in collection of the Debt pursuant to the terms of the APA,
reasonable attorney's fees and costs.
TOTAL JUDGMENT: $14,593.25
Date: November 2, 2011
Respectfully Submitted,
Paige Macdonald-Matthes, Esquire
SERRATELLI, SCHIFFMAN,
& BROWN, P.C.
2080 Linglestown Road
Suite 201
Harrisburg, PA 17110
(717) 540-9170
Attorney for Plaintiff
SERRATELLI, SCHIFFMAN & BROWN, P. C.
Paige Macdonald-Matthes, Esquire
Supreme Court ID No. 66266
2080 Linglestown Road
Harrisburg, PA 17110
(717) 540-9170
(717) 540-5481 facsimile
Email: PMacdonald-Matthesassbc-law com
Attorneys far Plaintiff, Brandon C. Powers
BRANDON C. POWERS,
851 KIEHL DRIVE
LEMOYNE, PA 17043
PLAINTIFF
" FILED-OFFICE
T RE PROTHONOTARY
211 Nov -4 PM 1: 14
CUMBEENRLAND COUNTY
: IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
V.
VERONICA G. AREVALO AND VARONIO D.
HERNANDEZ
640 LOPAx ROAD
HARRISBURG, PA 17112
DEFENDANTS
: DOCKET No. 2011-8316 CIVIL TERM
. CIVIL ACTION-LAW
CONFESSION OF JUDGMENT FOR EJECTMENT
Pursuant to the authority contained in the warrant of attorney, a copy of which is attached
to the Complaint filed in this action, I appear for DEFENDANTS and confess judgment in favor
of the Plaintiff and against the Defendants for the possession of the real property described as
follows: 700 Valley Street, East Pennsboro Township, Cumberland County, PA, Tax Parcel No.
09-12-2993-073.
Respectfully Submitted,
Date: November 3, 2011
Paige Macdonald-Matthes, Esquire
SERRATELLI, SCHIFFMAN, &
BROWN, P.C.
2080 Linglestown Road, Suite 201
Harrisburg, PA 17110
(717) 540-9170 ;i1 dOP`L
Attorney for Plaintiff 60t Il k 7 1
?.21t .Z In `S?- S'
N 1
t ?
SERRATELLI, SCHIFFMAN & BROWN, P. C. -t r
Paige Macdonald-Matthes, Esquire '
Supreme Court ID No. 66266
2080 Linglestown Road
`s
Harrisburg, PA 17110
(717) 540-9170 - - 4 a `
r
(717) 540-5481 facsimile era '
Email: PMacdonald-Mattheskssbc-law. com '
Attorneys for Plaintiff, Brandon C. Powers
BRANDON C. POWERS, : IN THE COURT OF COMMON PLEAS
. CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFF
v.
DOCKET No.
VERONICA G. AREVALO AND VARONIO D. CIVIL ACTION-LAW
HERNANDEZ
DEFENDANTS
COMPLAINT IN CONFESSION OF JUDGMENT
Plaintiff files this Complaint pursuant to Pa.R.Civ.P. 2951 and Pa. R.Civ. P. 2971 for
judgment by confession in assumpsit and in ejectment, and in support thereof avers as follows:
1. Plaintiff, Brandon C. Powers, an adult individual who resides at 851 Kiehl Drive,
Lemoyne, Cumberland County, Pennsylvania, 17043.
2. Defendant, Veronica G. Arevalo, is an adult individual who resides at 640 Lopax
Road, Harrisburg, Dauphin County, Pennsylvania, 17112.
3. Defendant, Varonio D. Hernandez, an adult individual who resides at 640 Lopax
Road, Harrisburg, Dauphin County, Pennsylvania, 17112.
4. Defendant Arevalo and Defendant Hernandez are hereinafter collectively referred
to as "Defendants."
COUNT I- CONFESSION OF JUDGMENT IN ASSUMPSIT (Pa. RCiv. P. 2951)
5. On or about May 8, 2011, Plaintiff and Defendants entered into an Asset Purchase
Agreement ("APA") for Plaintiffs business consisting, inter alia, of all equipment, inventory and
fixtures attendant to Plaintiff's pizza business located at 700 Valley Road, Enola, Cumberland
County, PA for the purchase price of $140,000 (hereinafter "Purchase Price"), with $15,000 paid
as a down payment and monthly installments due in the amount of $1,650.00 until the Purchase
Price is paid in full. A true and correct copy of the APA which authorizes, in paragraph 6,
judgment by confession in assumpsit in the event of a default in the payment of any installment
due there under is attached hereto as Exhibit "A." The original copy of the APA is in Plaintiff's
possession and control.
6. On or about May 8, 2011, Plaintiff and Defendants also entered into a second
agreement, to wit: an "Agreement of Sublease" (hereinafter "AOS") memorializing Defendants'
agreement to sublease Plaintiff's lease with Giuseppe Barone and Giovanni Barone for
commercial lease property located at 700 Valley Road, Enola, Cumberland County, PA. A true
and correct copy of the AOS which authorizes, in paragraph 8.2 et seq., judgment by confession
in assumpsit in the event of a default in the payment of any rent or any other charge or payment
due there under is attached hereto as Exhibit "B." The original copy of the AOS is in Plaintiff's
possession and control.
7. Contrary to the terms and provisions of the APA, Defendants have failed to make
the monthly payments due under the APA for the months of June 2011, July 2011, August 2011,
September 2011 and October 2011.
8. Defendants' failure to make payment pursuant to the terms of the APA when due
2
constitutes a default under the APA and specifically paragraph 6.1 of the same.
9. Contrary to the terms and provisions of the AOS, Defendants have failed to pay
rent for the months of September 2011 and October 2011.
10. Defendants' failure to pay rent when due constitutes a default under the terms of
the AOS and specifically paragraph 8. 1.1 of the same.
11. Plaintiff has notified Defendants of their default under both the APA and the AOS
and demanded payment. A true and correct copy of Plaintiff's October 11, 2011, demand letter,
together with a signed copy of the Certified Mail Return Receipt Card is attached hereto and
collectively marked as Exhibit "C".
12. Pursuant to the terms of the APA, and specifically, paragraph 6 of the same,
Plaintiff presently possesses the right to demand payment by Defendants on all amounts due for
the unexpired balance of the term of the APA, together with all other charges and expenses.
13. Pursuant to the terms of the AOS, and specifically, paragraph 8.2.1 of the same,
Plaintiff presently possesses the right to demand payment by Defendants on all amounts due for
the unexpired balance of the Lease term of the APA, together with all other charges and
expenses.
14. Under the terms of the APA, due to Defendants' default, Plaintiff is also entitled
to recover all costs of collection, together with attorney's fees in the amount of ten percent (10%)
of the judgment or $1,000, whichever is greater.
15. Under the terms of the AOS, due to Defendants' default, Plaintiff is also entitled
to recover interest and costs, together with an attorney's commission of ten percent (10%)
thereof.
3
} 1
16. As of the date of default on the APA, the following amounts are now due
Plaintiff:
June 2011- $1,650.00
July 2011- 1,650.00
August 2011- 1,650.00
September 2011- 1,650.00
October 2011- 1,650.00
$8,250.00
PLUS
Attorney's Commission 1,000.00
TOTAL DUE UNDER APA $9,250.00, plus amounts advanced by
Plaintiff in collection of the De bt pursuant to the terms of the APA,
reasonable attorney's fees and costs.
17. As of the date of default on the AOS, the following amounts are now due
Plaintiff.
Rent for October 2011- $3,240.00
Utilities
Past Due Trash (Pro-rated) 977.29
Past Due Water and Sewer (Pro-rated) 640.21
PLUS $4,857.50
Attorney's Commission (10%) 485.75
TOTAL DUE UNDER AOS $5,343.25, plus amounts advanced by
Plaintiff in collection of the Debt pursuant to the terms of the APA,
reasonable attorney's fees and costs.
18. The judgment sought herein is not against a natural person in connection with a
consumer credit transaction.
19. The APA has not been assigned.
20. The AOS has not been assigned.
4
21. Judgment has not been entered in any jurisdiction on the APA authorizing
judgment by confession.
22. Judgment has not been entered in any jurisdiction on the AOS authorizing
judgment by confession.
WHEREFORE, Plaintiff, as authorized by the confession of judgment clause contained in
the Asset Purchase Agreement and the Agreement of Sublease, requests judgment in assumpsit
to be entered against Defendants Veronica G. Arevalo and Varonio D. Hernandez, jointly and
severally, in the total sum of 14,593.25, plus any additional attorney's fees and costs authorized
by the warrant of attorney.
COUNT II- CONFESSION OF JUDGMENT IN EJECTMENT (PA. RCiv. P. 2971)
23. On or about May 8, 2011, Plaintiff and Defendants entered into an Asset Purchase
Agreement ("APA") for Plaintiff's business consisting, inter alia, of all equipment, inventory
and fixtures and commercial lease agreement attendant to Plaintiff's pizza business located at
700 Valley Road, Enola, Cumberland County, PA for the purchase price of $140,000 (hereinafter
"Purchase Price"), with $15,000 paid as a down payment and monthly installments due in the
amount of $1,650.00 until the Purchase Price is paid in full. A true and correct copy of the APA
which authorizes, in paragraph 6, judgment by confession in ejectment in the event of a default
in the payment of any installment due thereunder is attached hereto as Exhibit "A." The
original copy of the APA is in Plaintiff's possession and control.
24. On or about May 8, 2011, Plaintiff and Defendants also entered into a second
agreement, to wit: an "Agreement of Sublease" (hereinafter "AOS") memorializing Defendants'
5
agreement to sublease Plaintiff's lease with Giuseppe Barone and Giovanni Barone for
commercial lease property located at 700 Valley Road, Enola, Cumberland County, PA
(hereinafter "Lease Premises"). A true and correct copy of the AOS which authorizes, in
paragraph 8.2 et seq., judgment by confession in ejectment in the event of a default in the
payment of any rent or any other charge or payment due there under is attached hereto as
Exhibit "B." The original copy of the AOS is in Plaintiff's possession and control.
25. Contrary to the terms and provisions of the APA, Defendants have failed to make
the monthly payments due under the APA for the months of June 2011, July 2011, August 2011,
September 2011 and October 2011.
26. Defendants' failure to make payment pursuant to the terms of the APA when due
constitutes a default under the APA and specifically paragraph 6.1 of the same.
27. Contrary to the terms and provisions of the AOS, Defendants have failed to pay
rent for the months of September 2011 and October 2011.
28. Defendants' failure to pay rent when due constitutes a default under the terms of
the AOS and specifically paragraph 8. 1.1 of the same.
29. Plaintiff has notified Defendants of their default under both the APA and the AOS
and demanded payment. A true and correct copy of Plaintiff's October 11, 2011, demand letter,
together with a signed copy of the Certified Mail Return Receipt Card is attached hereto and
collectively marked as Exhibit "C".
30. Pursuant to the terms of the APA, and specifically, paragraph 6 of the same, as a
direct and proximate result of Defendants' default, Plaintiff presently possesses the right to
confess judgment for possession and ejectment of the Defendants from the Lease Premises.
6
31. Pursuant to the terms of the AOS, and specifically, paragraph 8.2.4 of the same,
as a direct and proximate result of Defendants' default, Plaintiff presently possesses the right to
confess judgment in ejectment against Defendants and a Writ of Possession may issue forthwith
without any prior Writ or proceedings whatsoever.
32. Under the terms of the APA, due to Defendants' default, Plaintiff is also entitled
to recover all costs of collection, together with attorney's fees in the amount of ten percent (10%)
of the judgment or $1,000, whichever is greater.
33. Under the terms of the AOS, due to Defendants' default, Plaintiff is also entitled
to recover interest and costs, together with an attorney's commission of ten percent (10%)
thereof.
34. As of the date of default on the APA, the following amounts are now due
Plaintiff:
June 2011- $1,650.00
July 2011- 1,650.00
August 2011- 1,650.00
September 2011- 1,650.00
October 2011- 1,650.00
$8,250.00
PLUS
Attorney's Commission 1,000.00
TOTAL DUE UNDER APA $9,250.00, plus amounts advanced by
Plaintiff in collection of the Debt pursuant to the terms of the APA,
reasonable attorney's fees and costs.
35. As of the date of default on the AOS, the following amounts are now due
Plaintiff:
Rent for October 2011-
$3,240.00
7
Utilities
Past Due Trash (Pro-rated) 977.29
Past Due Water and Sewer (Pro-rated) 640.21
$4,857.50
PLUS
Attorney's Commission (10%) 485.75
TOTAL DUE UNDER AOS $5,343.25, plus amounts advanced by
Plaintiff in collection of the Debt pursuant to the terms of the APA,
reasonable attorney's fees and costs.
36. The judgment sought herein is not against a natural person in connection with a
consumer credit transaction.
37. The APA has not been assigned.
38. The AOS has not been assigned.
39. Judgment has not been entered in any jurisdiction on the APA authorizing
judgment by confession.
40. Judgment has not been entered in any jurisdiction on the AOS authorizing
judgment by confession.
WHEREFORE, Plaintiff, as specifically authorized by the confession of judgment clause
contained in the Asset Purchase Agreement and the Agreement of Sublease, requests that
judgment in ejectment be entered against Defendants Veronica G. Arevalo and Varonio D.
Hernandez, jointly and severally, for the immediate recovery of the Lease Premises, and a Writ
8
of Possession be entered against the Defendants for the Lease Premises forthwith.
Respectfully Submitted,
Paige M caonald-Matthes, Esquire
SERRATELLI, SCHIFFMAN,
& BROWN, P.C.
2080 Linglestown Road
Suite 201
Harrisburg, PA 17110
(717) 540-9170
Attorney for Plaintiff
Date: November 2, 2011
9
1, Brandon C. Powers, verify that the statements made in the foregoing Complaint in
Confession of Judgment are true and correct. .1 understand that false statements herein are made
subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to
authorities.
Date: h?, ?, ao1 r
Brandon C. Powers
AFFIDAVIT OF NON-MILITARY SERVICE
I, Paige Macdonald-Matthes, Esquire, being duly sworn according to law, depose and say
that I am the attorney for Plaintiff, Brandon C. Powers and I am authorized to make this affidavit
on his behalf.
I hereby affirm that to the best of my knowledge, Varonio D. Hernandez, is not currently
serving in the United States Military, nor in any State or Territory thereof or its allies, as defined
in the Soldiers' and Sailors' Civil Relief Act of 1940 and the amendments thereto.
Respectfully Submitted,
Sworn to and subscribed
before me this Z N day
of1Vo?l?mh Zd1/
)OItary Pu lic
COMMONWEALTH F PENNSYLVANIA
NOTARIAL SEAL
Debra A. Evangelisti, Notary Public
Susquehanna Township, Dauphin County
My commission exnires May 07, 2012
Paige Macdonald-Matthes, Esquire
SERRATELLI, SCHIFFMAN,
& BROWN, P.C.
2080 Linglestown Road
Suite 201
Harrisburg, PA 17110
(717) 540-9170
Attorney for Plaintiff
AFFIDAVIT OF NON-MILITARY SERVICE
I, Paige Macdonald-Matthes, Esquire, being duly sworn according to law, depose and say
that I am the attorney for Plaintiff, Brandon C. Powers and I am authorized to make this affidavit
on his behalf.
I hereby affirm that to the best of my knowledge, Veronica G. Arevalo, is not currently
serving in the United States Military, nor in any State or Territory thereof or its allies, as defined
in the Soldiers' and Sailors' Civil Relief Act of 1940 and the amendments thereto.
Respectfully Submitted,
Sworn to and subscribed
before me this /4 day
of
Notary Public
COMMONWEALTH OF PENNSYLVANIA
NOTARIAL SEAL
FDebra A. Evangelisti, Notary Public
ehanna Township, Dauphin County
ommission expires May 07, 2012
Paige Macdonald-Matthes, Esquire
SERRATELLI, SCHIFFMAN,
& BROWN, P.C.
2080 Linglestown Road
Suite 201
Harrisburg, PA 17110
(717) 540-9170
Attorney for Plaintiff
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT made this ? day of
May 2011, between:
lf.ry Road Yteatrhuh?amt, Inc., a Pemtsylvama corporation with a mailing address of 383 North
26 Sh"I, Camp HHkPA 17011(collectively,"Suller )
Va roaka G. Are"do and'Vaaru& D. Hernandez, adult individuals with a mailing address of
640 Lopax Road, Harrisburg, PA 17112 (collectively, Muyte).
BACKGROUND
Seller is engaged in the restaurant business at a facility located in Enola, Pennsylvania
("Business"). Buyer has negotiated contemporaneously with Brandon C. Powers for a sublease of
real estate associated with the business. Seller is interesting in selling and Buyer is interested in
purchasing all other assets of the Business.
THE PARTIES HERETO, INMND1NG TO BE LEGALLY BOUND HEREBY,
AGREE AS FOLLO'W'S:
L SALE, PURCHASE AND ASSUMPTION. Seller agrees to sell and Buyer agrees to
purchase all assets of the Business as mare My described and set forth in Exhibit "A", attached
hereto and made a part hereof.
It is hereby apwsly uulezstood and agreed that the Assets ere to be transferred and conveyed
to Buyer as above speeif ed, in the condition existing at the time of this Agreement, by good
and sufficient bill of sale, and other necessary documents oftransfer, free and clear of all
liens, charges, encumbrances, debts, liabilities and obligations whatsaaver, except for those
which we or arise cart of obligations which are ogxessly assumed by Buyer hereunder, and that
such transfer of title shall occur upon the payment by Buyer of the complete purchase price by
cash or certified funds payable to Seller on or before May 159 2017, so long as Buyer has not
defaulted on the terms of the Sublease Agreement with Brandon C. Powers executed
contemporaneously with this docutment. Buyer is aware of liens on personal property to be
transferred upon final payment to Seller and that Seller will satisfy those hens
contemporaneously with final payment to Seller by Buyer.
2. PURCHASE PRICE. The total purchase price for the Assets shall be ONE
HUNDRED FORTY THOUSAND AND 00/100 ($140,000.00) U.S. DOLLARS ("Pulse
Price'). Buyer shall pay to Seller a down payment FIF'I'EBN THOUSAND. AND 00/100
($15,000.00) U. S. DOLLARS in cash or ceatified funds at Closing ("Down Payment') amd
monthly payrnents thereafter in the anouuit of $1,650.00 due on or bedbre the first day ofawh
month mmmil the balance of the Purchase Price is paid in l`ull..
3. CLOSING. "Closing" shall mean the meeting of the, parties or other occur .e at which the
sale, assignment, transfer and, delivery of the Assets by Seller to Buyer, the payment of the Down
Payment (as defined above). The Closing shall take place on or before May 15, 2011.
PLAINTIFF'S
EXHIBIT
a
a. CONDff1ONS TO CLOSING. This Agreement is subject to the satisfaction of Buyer.
Buyer will receive upon final, payment to Seller a duly eututed Bill of Sale;
4. REPItT ENTATIONS AND WARRANTTFS. As a material inducement to the parries to
enter into thus Agreeme nt and to close hereunder, the patties make the following rcpmesartations and
wairwdm as of the date hereof and as of the date of Closing.
a. Aatixorby. Buyer and Seller each have full power, right snd W&Mty to MUT MAD and perform
their respective obligations under this Agmal
b. Good Tide. Seller ovens ou miff and has good, indefeasible and awAm able title to all the
Assets wbich will be able to delivered conmanporanmsiy with final payment from Buyer, all
property free acid clear of all liens, security mtdrem mortgages, pledges, miens, prior
assigorroU encumbrances and claims of any kind, unless oft rw= stated in this Agreement
C. No 1<.itig dO n, TrnasscdM Not z HMCh. There is no litigation, pr+ooeedit1A demands,
letters, claims or investigation pending or t neatened against the parties or relating to or
affecting the Business or any of the Assets to be purchased by Buyer hereunder. There is
no litigation pending, or to the knowledge of the Seller, threatened, between or among Seller
against it by its employees.
d. Amimpt>on of risk of Lem Seller assumes file risk of loss, damage or deshicton resulting from
fire or other casualty of the Business or assets themo4 to the time of Closing, and Buyer shall
have the right to terminate this Agreemrnt if the Business is Werruptod prier tQ be=m
of loss, destruction or damage due to fire or other casualty. If loss, destruction or damage due
to fire or other casualty occurs prior to Closing, the purchase price shall be adjusted to reflect
the loss.
5. INDEMNIFICATION. Subject to the limitations in this section, from and aver the closing,
the parties shell hold harmless, indemnify and defend each other, and their respective officers,
directors, employees, stockholders, agents and affiliates, from and'against any and all damages,
claims, losses, liabilities and expenses (including without limitation costs of investigation
and reasonable attorneys' fees and e q mum) or diminution of vdlere, whether or not involving a
third-party claim, which may arise out of any breach by the other party of any representation
or warmty in this Agreancmt or in any certificate or documents delivered pursuant to this
Agreement, and any other breach or violation by the other party of any covenants of this
Agreement
6. DEFAULT. ALL RIGHTS AND REMEDIES OF SELLER INCLUDED IN THIS
AGREEMENT ARE BE CUMULATIVE AND DO NOT EXCLUDE ANY OTHER
RIGHTS OR REMEDIES ALLOWED BY LA't7V'. BUYER COVENANTS AND
AGREES THAT:
1. IF BUYER FAILS, NEGLECTS OR REFUSES TO PAY ANY INSTALLMENT OF AT
THE TIME AND IN THE AMOUNT AS HEREIN PROVIDED, OR TO PAY ANY
OTHER MONIES AGREED BY IT TO BE PAID PROMPTLY WHEN AND AS THE
SAME SHALL BECOME DUE AND PAYABLE UNDER THE TERMS HEREOF,
AND IF ANY SUCH DEFAULT SHOULD CONTINUE FOR. A PERIOD OF MORE
THAN TEN (10) DAYS;
2. IF BUYER SHALL, ABANDON OR VACATE THE PROPERTY OR FAIL TO KEEP
THE PROPERTY CONTINUOUSLY AND UNITERRUPTEDLY OPFN FOR
BUSINESS EACH BUSINESS DA'Y' FOR AT LEAST 5 DAYS A WEEK OR SHALL
FAIL, NEGLECT OR REFUSE TO KEEP AND PERFORM ANY OF THE OTHER
COVENANTS, CONDMONS, STIPULATIONS OR AGRREMENTS HEREIN
CONTAINED AND COVEENANTED AND AGREED TO BE KEPT AND
PERFORMED BY IT, AND IN THE EVENT ANY SUCH DEFAULT SHALL
CONTINUE FOR A PERIOD OF MORE THAN TEN (10) DAYS AFTER NOTICE
THEREOF GIVEN IN WRITING TO BUYER BY SELLER PROVIDED HOWEVER
THAT IF THE CAUSE FOR GIVING SUCH NOTICE INVOLVES THE MAKING OF
REPAIRS OR OTHER MATTERS REASONABLE REQUIRING A LONGER
PERIOD OF TIME THAN THE PERIOD OF SUCH NOTICE. BUYER SHALL BE
DEEMED TO HAVE COMPLIED WITH SUCH NOTICE WITHIN TI4E PERIOD SET
FORTH IN THE NOTICE AND IS DILIGENTLY PROSECUTING COMPLIANCE OF
SAID NOTICE OR HAS TAKEN PROPER STEPS OF PROCEEDING UNDER THE
CIRCUMSTANCES TO PREVENT THE SEIZURE, DESTRUCTION, ALTERATION
OR OTHER INTERFERENCE WITH SAID PROPERTY BY REASON OF NON-
COMPLIANCE WITH THE REQUIREMENTS OF ANY LAW OR ORDINANCE OR
WITII THE RULES, REGULATIONS, OR DIRECTIONS OF ANY
GOVERNMENTAL AUTI4ORITY AS THE CASE MAY BE; THEN THE BUYER
DOES HEREBY AUTHORIZE AND FULLY EMPOWER SAID SELLER OR
SELLER'S AGENT TO CANCEL OR ANNUL THIS AGREEMENT AT ONCE AND
TO RE-ENTER AND TAKE POSSESSION OF SAID PREMISES IMMEDIATELY,
AND BY FORCE IF NECESSARY, WITHOUT ANY PREVIOUS NOTICE OR
INTENTION TO RE-ENTER AND REMOVE ALL PERSONS AND THEIR
PROPERTY THEREFROM, AND TO USE SUCH FORCE AND ASSISTANCE IN
EFFECTING AND PERFECTING SUCH REMOVAL OF SAID BUYER AS MAY BE
NECESSARY AND ADVISABLE TO RECOVER AT ONCE FIRST AND
EXCLUSIVE POSSESSION OF ALL SAID LEASED PREMISES WHETHER IN
POSSESSION OF SAID BUYER OR OF THIRD PERSONS OR OTHERWISE,
WITHOUT BEING DEEMED GUILTY OF ANY MANNER OF TRESPASS AND
WITHOUT PREJUDICE TO- ANY EVENT THS AGREEMENT SHALL TERMINATE
AND BUYER SHALL INDEMNIFY THE SELLERAGAINST ALL UNAVOIDABLE
LOSS Off' PAYMENTS OR INCOME WHICH SELLER MAY INCUR BY REASON
OF SUCH TERMINATION DURING THE RESIDUE OF THE TERM HEREIN
SPECIFIED.
THE SELLER MAY, HOWEVER AT ITS OPTION, AT ANY TIME AFTER SUCH
DEFAULT OR VIOLATION OF CONDITION OR COVENANT, RE-ENTER AND
TAKE POSSESSION OF SAID PREMISES WITHOUT SUCH RE-ENTRY
WORKING A FORFEITIJRE OF THF. PAYMENTS TO BE PAID AND THE
COVENANTS, AGREEMENTS AND CONDITIONS TO BE KEPT AND
PERFORMED BY BUYER FOR THE FULL TERM OF THIS AGREEMENT. IN
SUCH EVENT SELLER SHALL HAVE THE RIGHT BUT NOT THE OBLIGATION,
TO DIVIDE OR SUBDIVIDE THE SUBJECT PREMISES IN ANY MANNER
SELLER MAY DETERMINE AND TO SELL, LEASE OR LET THE SAME OR
PORTIONS HEREOF FOR SUCH PERIOD OF TIME AND AT SUCH PRICES OR
RENTALS AND FOR SUCH USE AND UPON SUCH COVFNANTS AND
CONDITIONS AS SELLER MAY ELECT, APPLYING THE NET PROCEEDS FROM
SUCH SALES OR RENTALS FIRST TO THE PAYMENT OR SELLER'S EXPENSES
OF MAKING SUCH IMPROVEMENTS IN THE SUBJECT PROPER'T'Y AS MAY BE
NECESSARY IN ORDER TO ENABLE SELLER TO SELL OR RENT THE SAME,
AND TO THE PAYMENT OF BROKERAGE COMMISSIONS OR OTHER
NECESSARY IN EXPENSES OF SELLER IN CONNECTION 'W'YTT14. SUCH RE-SALE
OR RENTAL THE BALANCE, IF ANY, SHALL BE APPLIED BY SELLER FROM
TIME TO TIME ON ACCOUNT OF THE PAYMENTS DUE OR PAYABLE TBY
BUYER HEREUNDER, WITH THE RIGHT RESERVED TO SELLER TO BRING
SUCH ACTION OR PROCEEDINGS FOR THE REVOCERY OF ANY DEFICITS
REMANING UNPAID AS SELLER MAY DEEM FAVORABLE FROM TIME TO
TIME, WITHOUT BEING OBLIGATED TO AWAIT THE END OF THE TERM
HEREOF FOR THE FINAL DETERMINATION OF BUYER'S ACCOUNT. ANY
BALANCE REMAINING HOWEVER, AFTER FULL PAYMENT AND
LIQUIDATION OF SELLER'S ACCOUNT AS AFORESAID SMALL BE PAID TO
BUYER WITH THE RIGHT RESERVED TO SELLER AT ANY TIME TO GIVE
NOTICE IN WRITING TO BUYER OF SELLER'S ELECTION TO CANCEL AND
TERMINATE THIS AGREEMENT UPON GIVING OF SUCH NOTICE AND THE
SIMULTANEOUS PAYMENTS BY SELLER TO BUYER OF ANY CREDIT
BALANCE IN BUYER'S FAVOR THAT MAY AT THE TIME BE OWING TO
BUYER SHALL CONSTITUE A FINAL AND EFFECTIVE CANCELLATION AND
TERMINATION OF THIS AGREEMENT AND THE OBLIGATIONS HEREUNDER
ON THE PART OF EITHER PARTY TO THE OTHER.
SELLER MAY, AT ITS OPTION, WHILE SUCH DEFAULT OR VIOLATION OR
COVENANT OR CONDITION CONTINUES, AND AFTER TEN (10) DAYS NOTICE
OF ITS INTENTION SO TO DO, DECLARE ALL THE PAYMENTS RESERVED
FOR THE FULL TERM OF THIS LEASE REMAINING UNPAID DUE AND
PAYABLE A'I' ONCE,; AND BUYER DOES HEREBY EMPOWER ANY ATTORNEY
OF ANY COURT OF RECORD IN THE STATE OF PENNSYLVANIA OR
ELSEWHERE TO APPEAR FOR IT AND- WAIVE THE ISSUANCE AND SERVICE
OF PROCESS AND CONFESS JUDGMENT AGAINST IT FOR THE WHOLE OF
ANY PART OF SAID RENT AND THEREAFTER TO RELEASE ALL ERRORS AND
WARRANT ALL RIGHTS OF APPEAL AND STAY OF EXECUTION THE INITIAL
EXERCISE OR USE OF THIS WARRANT OF ATTORNEY SHALL NOT EXHAUST
THE SAME, BUT THE SAME MAY BE USED AND EXERCISED WTHOUT
LIMITATION AS OFTEN AS NECESSITY FOR THE USE OF THE SAME ARISE,
THE EXERCISE OR USE OF THIS WARRANT OF ATTORNEY SHALL NOT
PREVENT SFT.LF.,R FROM SUIRSFQUENTLY TERMINATING THIS AGREEMENT,
BY GIVING NOTICE TO BUYER OF ITS ELECTION SO TO DO AND UPON ITS
TENDER TO BUYER OF A SUM EQUAL TO THE AMOUN'T', IF ANY, PAID BY
THE BUYER FOR SALE PAID AFTER THE DATE OF SUCH TERMINATION.
4
IN ADDITION TO THE OTHER RIGHTS GRANTED TO THE SELLER
HERUNDER, SELLER MAY, AT ITS OPTION, WHILE SUCH DEFAULT OR
VIOLATIONS OF COVENANTS OR CONDITION CONTINUE(S), AND AFTER
TEN (10) DAYS' NOTICE OF ITS INTENTIONS TO DO SO, CONFESS JUDGMENT
FOR POSSESSION AND EJECTMENT OFTHE BUYER FROM THE SUBJECT
PROPERTY AND BUYER DOES HEREBY EMPOWER ANY ATTORNEY OF ANY
COURT TO RECORD IN THE COMMONWEALTH OF PENNSYLVANIA OR
ELSEWHERE TO APPEAR FOR IT AND WAIVE THE ISSUANCE AND SERVICE
OF PROCESS AND CONFESS A JUDGMENT IN EJECTMENT.
ALSO IN ADDITION TO THE OTHER RIGHTS GRANTED TO THE SELLER
UNDER THIS AGREEMENT, BUYER AGRESS THAT IN THE EVENT THAT THE
AMOUNTS DUE SELLER UNDER THIS AGREEMENT ARE COLLECTED BY
LAW OR THROUGH AN ATTORNEY AT LAW, AND JUDGMENT IS ENTERED
IN FAVOR OF SELLER AGAINST BUYER WHETHER BY CONFESSION OR
OTHERWISE, THEN BUYER. AGREES TO PAY ALL COSTS OF COLLECTION,
INCLUDING ATTORNEY'S FEES IN THE AMOUNT OF TEN PERCENT OF THE
JUDGMENT OR ONE THOUSAND DOLLARS ($1,000.00), WHICHEVER IS
GREATER.
7. MISCELLANEOUS.
a. Notices. All notices under this Agreement shall be in writing, delivered by
confirmed telefax, certified mail return receipt requested or by hand, and shall be
deemed to have been given wb, :n received by the intended recipient at the following
address (or at such other address: as the intended recipient shall have specified in a
written notice given to the other parties):
i) If to Seller: 383 North 26th Street, Camp Hill, PA 17011
ii) If to Buyer: 640 Lopax Road, Harrisburg, PA 17112
8. AMENDMENTS. This Agreement u -,y not, be amended or supplemented except by means of a
written agreement executed on behali• , each of the parties to this Agreement.
9. SEVERABILITY. Whenever possible, each provision of this Agreement shall be
infegxeted in such manners to be effec-,: Ve and valid under applicable law, but if any one or mcx+e of
the provisions or a portion of any provisions of this Agreement "be deemed to be contrary to
law, invalid, illegal, unenforceable or . • • tasonable in any respect by any governmental authority,
court of law or arbitrator having con, ; •.,?tcnt jurisdiction over the subject matter of and over the
parties to this Agreement, the rernauz : , :isions, portions of such provisions or reasonable scope
of such provisions shall be severable a v' nforceable in accordance with their terns.
10. WAIVER No failure on the part of ray party to this Agmcmcnt to cxcrciw any right or remedy
under this Agreement, and no delay on rbe part of any party to this Agreement in exercising any ri&
or remedy under this Amt, shall - • nnst itute a waiver of mrh right or remedy, and no single or
partial exercise of any such right or r, ? edy shall preclude any other or further exercise of such right
or remedy or of any other right or rer -
11. St7CCESSORS AND ASSIGNS. F - may not assign any of its rights or delegate any of its
obligations under this A reematt by c ..._w? operation of law or od crwise without the written
consent of Seller. This Agrew=t sh& ?e binding upon and, except as otherwise provided in the
Agreement, shall inure to the benefit P,.' :.lie parties to this Agrocmart and their respective
permitted successors and assigns, if ar
12. DISPUTE RESOLUTION. Any c'..,:Dutes arising pursuant to this Agreement shall be
brought before the Court of Conmiw -"., of Cumberland County, Pe nw)4 vania, or the Federal
Courts for the Middle District of Pem.: a and the parties submit to exclusive jwisdicdm of
those Courts. The prevailing party slat, ? ,,ntitled to recover all costs incurred, including
reasonable attorney's fees. Pcrinsylva. .1 w shall govern. This Agreement shall be construed
in accordance with the laws of the C. n inonwealth of Peansylwania without regard to its
conflicts of laws provisions.
13. ENT= ,A,GREEN(ENT. All ExA
agrcanents shall be considered incox
terms used in such F.xtnbits shall haw
Agreement This Agreement and the
delivered pursuant hereto or thereto c
Agreement and supersede all other aW
subject mattes of this Amt
a this Agreement and the ancillary written
'. into and a part of this Afire mcnt, and all capitalised
. meanings as similarly capitalized ten is used in this
:y written agrxments and other written in*mne rts
ute the entire understanding of the pardes to this
nie nts and understandings bet%= thMn relaoring to the
14. COUNTERPARTS. Tbis Agrmr. - : y be exeaite d in countesparts, including by me= of
telef =d sign= pages, each ofwH-, .•' constitute an original and all ofwbad), wlien taken
together, shall constitute the Ag reew :.:
TAT WTINESS WfEEREOF, Seller w uyerhave eac aced d is Agreement as oftlae date set
fxtbelow
o5-61 -11
y? Date
er Tate
EXMBff A
Assets
1. All equipment, inventory and fixtc; :s
2. All intellectual property
3. All telephone numbers
4. All Trade Names
5. All customer records and lists
6. All goodwill associated with the t...-iess
7
Agreement of Sublease
THIS AGREEMENT OF SUBLEASE (this "Sublease") is made as of the 8 day of
May, 2011 between Brandon C. Powers, with an address at 383 N. 26th Street, Camp Hill, PA 17011
("Sublandlord"), and Veronica G. Arevalo and Varonio D. Hernandez, adult individuals, with an
address at 640 Lopax Road, Harrisburg, PA 17112 (collectively, "Subtenant").
Background:
A. Sublandlord has entered into a lease with Giuseppe Barone and Giovanni Barone (collectively,
"Landlord") dated July 1, 2008 (herein referred to as the "Lease") for certain commercial space
consisting of 700 Valley Road, Enola, PA 17025 (collectively the "Demised Premises") within
Landlord's building (the "Building"). A true and correct copy of the Lease, from which certain business
terms irrelevant to this Sublease have been excised, is attached hereto as Exhibit A and hereby made a
part hereof.
B. Subtenant desires to sublease from Sublandlord all of the Demised Premises and Sublandlord is
agreeable to the making of such sublease on the terms and conditions hereinafter set forth.
Agreement
NOW, THEREFORE, in consideration of the rents herein reserved and the covenants hereinafter
expressed, and intending to be legally bound, Sublandlord and Subtenant agree as follows:
1. Sublease; Term. Sublandlord hereby demises and sublets to Subtenant, who hereby subleases and takes
from Sublandlord, the Sublet Premises for a term (the "Term") beginning on the Lease Commencement
Date (as defined in the Lease) and ending on December 31, 2012, unless sooner terminated in accordance
with the terms of this Sublease or the Lease.
2. Rentable Area. The rentable area of the Sublet Premises herein stated is based upon the determination
by Landlord's space planner, and Sublandlord shall not be liable to Subtenant for any representations
related to the actual number of rentable square feet available. In addition, Subtenant has inspected the
Sublet Premises and is thoroughly familiar with it.
3. Use. Subtenant shall not use the Sublet Premises for any purpose other than as a restaurant, including
such purposes as ordinarily and customarily are required for the use of the Sublet Premises as a
restaurant.
4. Rent. Subtenant shall pay to Sublandlord during the Term an annual rental (collectively "Rent") equal
to rent pursuant to the primary Lease for the Sublet Premises, including any added rent or rental increases
or utilities and insurance that nlay be required, and in all other ways satisfying all obligations of the _
PLAINTIFF'S
EXH
1 ?
primary Lease. If any insurance policy required to be maintained by Subtenant under this Sublease is in
default for any reason, Sublandlord may purchase insurance or make payments or otherwise take any
steps needed to correct the default and charge it to Subtenant as added rent, which shall immediately be
due to Sublandlord. All payments of Rent shall be paid without demand, offset or deduction at the office
of Sublandlord or at such other place as Sublandlord may designate, and otherwise in the same manner
and in accordance with the same terms and conditions as are set forth in the Lease. Subtenant shall
maintain and fully pay all utilities at the Sublet Premises. If any utilities are unpaid by Subtenant,
Sublandlord may pay the utilities and the cost of paying the utilities shall be added rent immediately
payable to Sublandlord by Subtenant.
5. Subleasehold Improvements.
5.1 All improvements to the Sublet Premises shall be made by Subtenant at the Subtenant's expense and
in accordance with all requirements of the Lease. Subtenant shall not install, construct, demolish, or alter
in any fashion any part of the Sublet Premises or any part thereof without Sublandlord's and Landlord's
prior written approval.
5.2 Subtenant may improve the Sublet Premises only at Subtenant's sole cost and expense. All provisions
the Lease governing construction matters, including preparation and approval of design documents and
hiring of contractors, shall be fully applicable to Subtenant's improvement of the Sublet Premises as if the
terms "Landlord," "Tenant" and "Premises," wherever appearing therein, were amended to read,
respectively, "Sublandlord," "Subtenant" and "Sublet Premises."
5.3 Subtenant shall provide to Sublandlord its proposal with respect to any signage for the Sublet
Premises, and no such signage shall be installed by Subtenant without Sublandlord's prior written
approval, which approval shall not be unreasonably withheld or delayed.
5.4 All fixtures attached to the Sublet Premises (other than Subtenant's trade and business fixtures and
equipment) shall, unless Sublandlord gives Subtenant notice to remove them at the time Sublandlord
approves Subtenant's installation thereof, remain at the Sublet Premises at the expiration or sooner
termination of this Sublease and become the property of Sublandlord without payment therefor. With
respect to those fixtures which Sublandlord gives Subtenant notice to remove at the time Sublandlord
approves Subtenant's installation thereof, such fixtures shall be removed at the sole cost of Subtenant
before the expiration or sooner termination of this Sublease, and in such event, Subtenant shall repair all
damage to the Sublet Premises caused by the installation or removal thereof and shall restore the Sublet
Premises to its original improved condition (ordinary wear and tear excepted), on or before the expiration
or termination of this Sublease. Should Subtenant fail to remove the same or to restore the Sublet
Premises as aforesaid, Sublandlord may cause same to be removed and/or the Sublet Premises to be
restored at Subtenant's expense, and Subtenant hereby agrees to pay Sublandlord the actual cost of such
removal and/or restoration, together with any and all damages which Sublandlord may suffer and sustain
by reason of the failure of Subtenant to remove the same and/or restore the Sublet Premises as herein
provided, on demand as Additional Rent.
v. 1l ci rigs o? Lease InCorporatea' This SilbieaSe 1S subject and Subordinate to all of the teriiS and
conditions of the Lease, each of which is hereby incorporated herein by reference and made a part hereof.
The parties agree, with respect to the Lease, as follows:
6.1 The terms, covenants and conditions contained in the Lease shall, as between Sublandlord and
Subtenant, constitute the terms, covenants and conditions of this Sublease, except to the extent that they
are inapplicable hereto or inconsistent herewith. The parties hereto specifically agree that in no event shall
Subtenant be entitled to, or claim, any of the rights conferred upon -Sublandlord under the Lease,
including without limitation: the right to any alteration or redecoration allowances, or allowances of any
other nature whatsoever, or any right or claim to any insurance proceeds, condemnation awards, rights to
non-disturbance agreements, options to renew, options to expand or the like, any right of early
termination, or any right similar or dissimilar to any of the foregoing.
6.2 Subtenant shall not do or permit to be done, with respect to the Sublet Premises or Subtenant's interest
in this Sublease, any act or thing which will constitute a breach or violation of any of the terms, covenants
or conditions of the Lease.
6.3 Subtenant shall fully and faithfully observe and perform, with regard to the Sublet Premises and
Subtenant's interest in this Sublease, all of the duties and obligations contained in the terms, covenants
and conditions of the Lease to be observed or performed by Sublandlord as tenant under the Lease.
6.4 Sublandlord, in its relations with Subtenant hereunder, shall have all of the rights and remedies
afforded to Landlord in its relations with Sublandlord as tenant as set forth in the Lease. Without limiting
the generality of the foregoing, (i) the consent of Sublandlord shall be required for any action of
Subtenant which, pursuant to the Lease, would require the consent of Landlord as to the tenant, and (ii)
Sublandlord shall have the same right to prescribe regulations as to Subtenant's use and occupancy of the
Sublet Premises as is afforded Landlord in the Lease.
6.5 Sublandlord is hereby released and relieved of (i) all of the obligations of Landlord as set forth in the
Lease, and (ii) any liability to Subtenant for any default by Landlord under the Lease or any failure by
Landlord to perform any of its obligations thereunder. Subtenant agrees and acknowledges that
Sublandlord is not in control of the Building or of any of the services or facilities that may be appurtenant
to or supplied at the Building or by Landlord under the Lease. Sublandlord shall not be responsible for
any failure or interruption, for any reason whatsoever, of any such services or facilities; and Subtenant
agrees that no failure to furnish, or interruption of, any such services of facilities shall give rise to (i) any
abatement, diminution or reduction of Subtenant's obligations hereunder, except to the extent that
Sublandlord's obligations under the Lease are abated, diminished or reduced thereby, (ii) any constructive
eviction, whether in whole or in part, or (iii) any liability on the part of Sublandlord. If there shall be any
failure to furnish, or interruption of any of, such services or facilities and Subtenant gives notice thereof
to Sublandlord, Sublandlord shall, to the extent permitted under the Lease, make reasonable and diligent
efforts to cause Landlord under the Lease to furnish the same, but Sublandlord need not bring any action
or proceeding against the Landlord under the Lease in connection therewith. In any event, Subtenant shall
not request Sublandlord or Landlord to furnish any additional services, and Sublandlord shall have no
obligation to request Landlord to do so, unless Subtenant agrees to pay for such services.
3
6.6 Subtenant acknowledges that the rights granted to it under this Sublease are not in any sense greater or
broader than the rights granted to Sublandlord as tenant under the Lease.
7. Insurance.
7.1 Subtenant's Insurance. Subtenant shall maintain, with Sublandlord, Valley View Restaurant, Inc.,
Landlord and "Agent (as such term is defined inlhe Lease) named as additional insureds; such liability
and other insurance as is required to be maintained by the tenant under the Lease, with such limits and
otherwise in accordance with such requirements as are set forth in the Lease. Such insurance also shall
name as additional insureds such other parties as Landlord shall specify.
7.2 Waiver of Subrogation. Sublandlord and Subtenant hereby release each other from any and all liability
or responsibility to each other or anyone claiming through or under them by way of subrogation or
otherwise for any loss or damage to property covered by any fire and extended coverage insurance then in
force, even if such fire or other casualty shall have been caused by the fault or negligence of the other
party, or anyone for whom such party may be responsible, provided, however, that this release shall be
applicable and in force and effect only to the extent of and with respect to any loss or damage occurring
during such time as the policy or policies of insurance covering said loss shall contain a provision to the
effect that this release shall not adversely affect or impair said insurance or prejudice the right of the
insured to recover thereunder. Sublandlord and Subtenant shall each cause their respective insurers to
include such a provision in their respective policies, subject, however, to the following provisions: If at
any time the fire insurance carriers issuing fire insurance policies to Sublandlord or Subtenant shall exact
an additional premium for the inclusion of such or similar provisions, the party whose insurance carrier
has demanded the premium (the "Notifying Party") shall give the other party hereto notice thereof. In
such event, if the other party requests, the Notifying Parry shall require the inclusion of such or similar
provisions by its fire insurance carrier, and the requesting other party shall reimburse the Notifying Party
for any such additional premiums for the remainder of the term of this Lease. If at any time any such
insurance carrier shall not include such or similar provisions in any fire or extended coverage insurance
policy, then, as to loss covered by that policy, the release set forth in this Section 7.2 shall be deemed of
no further force or effect. The party whose policy no longer contains such provision shall notify the other
party that the provision is no longer included in the policy, but a failure or delay in giving such notice
shall not affect such termination of the release set forth in this Section. During any period while the
foregoing waivers of right of recovery are in effect, the party hereto as to whom such waivers are in effect
shall look solely to the proceeds of such policies to compensate itself for any loss occasioned by fire or
other casualty which is an insured risk under such policies.
8. Subtenant's Defaults; Sublandlord's Remedies.
8.1 Defaults. If any of the following shall occur:
8. 1.1 Subtenant does not pay in full when due any installment of rent or any other charge or payment
whether or not herein included as rent; or
8. 1.2 Subtenant violates or falls to perform or otherwise breaks any covenant, agreement or condition
4
herein contained or any other obligation of Subtenant to Sublandlord; or
8.1.3 Subtenant does not occupy the Sublet premises within sixty (60) days after the Lease
Commencement Date; or
8.1.4. Subtenant removes or attempts to remove Subtenant's property or property of Valley View
-Restaurant; Inc.; from the Sublet Premises other than (i) in the ordinary course of business or (ii) to
replace the subject furniture or equipment, in either case without having first paid to Sublandlord in full
all Rent and any other charges that may be due during the entirety of the Term; or
8.1.5 Subtenant becomes the subject of commencement of an involuntary case under the federal
bankruptcy law as now or hereafter constituted, or there is filed a petition against Subtenant seeking
reorganization, arrangement, adjustment or composition of or in respect of Subtenant under the federal
bankruptcy law as now or hereafter constituted, or under any other applicable federal or state bankruptcy,
insolvency, reorganization or other similar law, or seeking the appointment of a receiver, liquidator or
assignee, custodian, trustee, sequestrator (or other similar official) of Subtenant or any substantial part of
its property, or seeking the winding-up or liquidation of its affairs and such involuntary case or petition is
not dismissed within sixty (60) days after the filing thereof, or if Subtenant commences a voluntary case
or institutes proceedings to be adjudicated a bankrupt or insolvent, or consents to the institution of
bankruptcy or insolvency proceedings against it, under the federal bankruptcy laws as now or hereafter
constituted, or any other applicable federal or state bankruptcy, reorganization or insolvency or other
similar law, or consents to the appointment of or taking possession by a receiver or liquidator or assignee,
trustee, custodian, sequestrator (or other similar official) of Subtenant or of any substantial part of its
property, or makes any assignment for the benefit of creditors, or admits in writing its inability to pay its
debts generally as they become due, or fails to generally pay its debts as they become due, or if Subtenant,
its partners, shareholders, or any committee thereof takes any action in contemplation of any of the
foregoing, then:
8.2 Sublandlord's Remedies. In any such event set forth above, and at the sole option of Sublandlord:
8.2.1 The whole balance of Rent and any other charges, whether or not payable as Rent, for the entire
balance of the Term and any renewal or extension thereof for which Subtenant has become bound, or any
part of such Rent and charges, and also all or any costs and sheriffs, marshall's, constable's or other
official's commissions, whether chargeable to Sublandlord or tenant, including watchman's wages, shall
be taken to be due and payable and in arrears as if by the terms of this Sublease said balance of Rent and
such other charges and expenses were on that date payable in advance (and Sublandlord hereby agrees
that it shall endeavor, in good faith, to mitigate its damages, provided that (i) Sublandlord shall not be
obligated to sublease less than all of the Sublet premises or accept economic terms which would yield less
actual rentals to Sublandlord than would have accrued in the aggregate under this Sublease on a per
annum basis, and (ii) Sublandlord shall not be prohibited or prevented from exercising all remedies
available against Subtenant during the pendency of any mitigation efforts); and/or
8.2.2 The Term of this Sublease shall terminate and become absolutely void, without notice and without
any right on the part of Subtenant to save the forfeiture by payment of any sum due or by other
r•
performance of any condition, term, agreement or covenant broker; and/or
8.2.3 Any prothonotary or attorney of any court of record may appear for Subtenant in any and all
actions for Rent in arrears or treated as if in arrears, and for charges, whether or not payable as
Rent, and may sign for Subtenant an agreement, for which this Sublease shall be his sufficient
warrant, for entering in any competent court an amicable action or actions in assumpsit for the
recovery-of arrears of Rent and Rent-treated-as -if in arrears; and the said charges; and in any suits - -
or in said amicable actions to confess judgment against Subtenant for all arrears of Rent and Rent
treated as if in arrears and the said charges, and for interest and costs, together with an attorney's
commission of ten percent (10%) thereof. Such authority shall not be exhausted by any one or more
exercise thereof, but judgment may be confessed from time to time as often as any Rent in arrears
or Rent treated as if in arrears or charges fall due and are not paid. Such powers may be exercised
during as well as after the expiration or termination of the original Term and during and at any
time after any extension or renewal of the Term; and/or
8.2.4 When this Sublease shall be terminated by covenant or condition broken, either during the
original Term or any renewal or extension thereof, and, also when and after the Term hereby
created or any renewal or extension thereof shall have expired, it shall be lawful for any attorney as
attorney for Subtenant to file an agreement for entering any competent court an action for
judgment in ejectment against Subtenant and all persons claiming under Subtenant for the
recovery by Sublandlord of possession of the Sublet Premises, for which this Sublease shall be his
sufficient warrant, whereupon if Sublandlord so desires, a Writ of Possession may issue forthwith,
without any prior writ or proceedings whatsoever, and if for any reason after such action shall have
been commenced, it shall be cancelled or suspended and possession of the Sublet Premises remains
in or is restored to Subtenant, Sublandlord shall have the right upon any subsequent default or
upon the expiration or termination of this Sublease, or any renewal or extension hereof, to bring
one or more actions in ejectment as hereinbefore set forth to recover possession of the Sublet
Premises; and/or
8.2.5 In any action in ejectment, or in assumpsit for Rent or charges, Sublandlord shall cause to be
filed in such action an affidavit setting forth the facts necessary to authorize the entry of judgment
and if a true copy of this Sublease (and of the truth of the copy, such affidavit shall be sufficient
proof) be filed in such action, it shall not be necessary to file the original as a warrant of attorney,
notwithstanding any law, rule of court, custom or practice to the contrary. Subtenant releases to
Sublandlord, and to any and all attorneys who may appear for Subtenant, all procedural errors in
any proceedings taken by Sublandlord, whether by virtue of the powers of attorney contained in
this Sublease or not, and all liability therefor. Subtenant expressly waives the benefits of all laws,
now or hereafter in force, exempting any property within the premises or elsewhere from distraint,
levy or sale. Subtenant further waives the right to any notice to remove as may be specified in the
Pennsylvania Landlord and Tenant Act of April 6, 1951, as amended, or any similar or successor
provision of law, and agrees that zero (0) days notice shall be sufficient in any case where a longer
period may be statutorily specified; and/or
8.2.6 After reentry or retaking or _recovering of the Sublet Premises, whether by way of termination of this
6
Sublease or not, Sublandlord may lease the Sublet Premises or any part or parts thereof to such person or
persons upon such terms as may in Sublandlord's discretion seem best for a term within or beyond the
Tenn of this Sublease, and Subtenant shall be liable for any loss of Rent for the balance of the Term and
any renewal or extension for which Subtenant has become bound, plus the reasonable costs and expenses
of reletting and. of making repairs and alterations to the Sublet Premises. Further, Subtenant, for itself and
its successors and assigns, hereby irrevocably constitutes and appoints Sublandlord as Subtenant's agent
to collect the rents due-to become due from all subleases and- apply,-the same to the Rent due << -
hereunder without in any way affecting Subtenant's obligation to pay any unpaid balance of Rent due or
to become due hereunder; and/or
8.2.7 Sublandlord may (but shall not be obligated to do so), in addition to any other rights it may have in
law or equity, cure such default on behalf of Subtenant, and Subtenant shall reimburse Sublandlord upon
demand for all costs incurred by Sublandlord in curing such default.
8.3 Notice of Default. Except as to defaults under Sections 8.1.3, 8.1.4, or 8.1.5, Sublandlord shall not
exercise any right or remedy provided for in this Sublease or allowed by law because of any default of
Subtenant, unless Sublandlord shall have first given written notice of such default of Subtenant, and
Subtenant, and within a period of ten (10) days thereafter, Subtenant shall have failed to pay the sum or
sums due if such default consists of the failure to pay money, or, if such default consists of something
other than the failure to pay money, Subtenant shall have failed within thirty (30) days after such notice
from Sublandlord to correct such default, or if such default is not susceptible of being corrected within the
aforesaid thirty (30) days, after such timely commencement Subtenant fails actively and diligently in
good faith to proceed with and continue to the correction of the default until it shall be fully corrected;
provided, however, that Sublandlord shall not be required to give, and Subtenant shall not be entitled to
the benefit of, any such notice or grace period (A) more than two (2) times in any twelve (12) month
period for any monetary defaults, or (B) for multiple non-monetary defaults which are in nature similar,
where Sublandlord has given Subtenant notice of the first such default and the grace period respecting
same is unexpired and the default remains uncured, or (C) if in Sublandlord's reasonable judgment,
Subtenant's delay in curing such default would materially jeopardize the Sublet premises, the Demised
Premises, or any occupants thereof.
9. Notices. Any notices given or required to be given by either party to the other, shall be in writing and
shall be deemed given if delivered personally underwritten acknowledgment of receipt (or, if either party
shall have vacated their respective space in the Building, when mailed by United States certified mail,
return receipt requested), to the respective addresses set forth at the outset.
The address to which all notices are to be sent may be changed by the parties from time to time by giving
notice of such change in writing by certified mail delivered to all parties to this document..
10. Indemnification. Subtenant hereby agrees to indemnify and save Sublandlord and its constituent
partners harmless against and from any or on all claims by or on behalf of any person or persons, firm or
firms, corporation or corporations, or other entity, arising from: (a) any negligent act, error, or omission
of Subtenant or of any of Subtenant's servants, employees, contractors, agents, or invitees in or about the
Building or the Sublet Premises; (b) any damage or injury to persons or property occurring upon or in
connection with t! e use or oCCUrnancy of the Sublet Premises; and (c) such indemnity shall extend against
s
and include all costs, counsel fees and expenses and liabilities reasonably incurred in connection with any
such claim or action or proceeding brought with respect thereto; and in case any action or proceeding is
brought against Sublandlord by reason of any such claim, Subtenant, upon notice from Sublandlord,
covenants to resist and/or defend at Subtenant's expense such action, claim, or proceeding. In no event
shall the foregoing obligation to indemnify extend to claims arising out of the negligent acts, errors or
omissions of Sublandlord or its servants, employees, contractors or agents.
11. Assumption of Risk; Release. Subtenant, as a material part of the consideration to Sublandlord, hereby
assumes all risk of damage to property or loss of property in, from, upon, or about the Sublet Premises
from any source and to whomsoever belonging, and Subtenant hereby waives all claims in respect thereof
against Sublandlord except claims based upon the gross negligence or willful misconduct of Sublandlord,
its servants, agents or employees, and Subtenant agrees to indemnify, defend, and save Sublandlord
harmless from and against any such claims by any other party. Without limiting the foregoing, neither
Sublandlord nor its agents or employees shall be liable for and Subtenant hereby releases them from (a)
any damage to property of Subtenant or of others entrusted to employees of Landlord, (b) the loss or
damage to any property of Subtenant by theft or otherwise, (c) any injury or damage to persons or
property resulting from fire, explosion, falling plaster, steam, gas, electricity, electrical disturbance, water,
rain or snow or leaks from any part of the Building or from the pipes, appliances or plumbing works or
from the roof, street, or sub-surface or from any other place or by dampness or by any other cause of
whatsoever nature (whether similar or dissimilar to those above specified), unless caused by or due to the
gross negligence of Sublandlord, its agents, servants or employees, or (d) any such damage caused by
other tenants or persons in the Building or caused by operations in construction of any private, public or
quasi-public work.
12. Mortgage; Assignment. Subtenant shall not sell, mortgage or assign this Sublease, or sublease any part
or all of the Sublet Premises, without prior written consent of both Landlord and Sublandlord; such
consent shall be at the sole discretion of Landlord and Sublandlord. Any attempt by Subtenant to
mortgage, assign or sublease, where such consent is required, without the prior written consents of
Landlord and Sublandlord, shall be void and of no effect.
13. Termination. This Sublease shall terminate and expire at midnight at the close of the last day of
December 31, 2012 without the requirement of any further notice by either party to the other, and without
any right on the part of Subtenant to renew or extend the Term. The parties may agree in writing to extend
the Sublease term prior to that occasion only in a writing signed by Subtenant, Sublandlord and Landlord.
14. Landlord Approval. This Sublease shall not be effective until (i) executed by Sublandlord and
Subtenant, and (ii) approved by Landlord and the holder of any mortgage encumbering the Building. If
the Landlord or such mortgagee shall refuse to consent to this Sublease, Sublandlord shall not be
obligated to take any action to obtain such consent, and this Sublease shall thereupon be void and of no
effect.
15. Miscellaneous.
1 S l ';rune is of the essence of this Sublease and of the performance by Subtenant and Sublandlord of each
and every term and condition of this Sublease and of each and every term and condition of the Lease
which the Subtenant and Sublandlord have herein agreed to keep and perform.
15.2 This Sublease contains all of the agreements between Sublandlord and Subtenant and may not be
modified except by a written instrument duly executed by the parties.
15.3 Subject to the provision-of--Section 14; the terms and conditions of this?Sublease shall extend to and
be binding upon the heirs, successors and assigns of the respective parties.
15.4 Failure on the part of either party to complain of any act or failure of the other party, or to declare the
other party in default, irrespective of how long such failure continues, shall not constitute a waiver by
either Sublandlord or Subtenant of its respective rights hereunder. A giving of consent by Sublandlord or
Subtenant in any one instance shall not limit or waive the necessity of obtaining such consent in the
future.
15.5 The captions contained in this Sublease are for convenience of reference only, and shall not be
deemed a part of the text of this Sublease, or to provide any interpretation thereof.
15.6 If any tern or provision of this Sublease or of the Lease, as the same applies to Sublandlord and
Subtenant, shall be held invalid or unenforceable, the remainder of the Sublease and the Lease, as
applicable, shall not be affected thereby, and each term and provision of this Sublease and the Lease, as
applicable, shall be valid and enforceable to the full extent permitted by law.
15.7 The word "person" as used herein shall mean any natural person, partnership, corporation, or any
other form of business or legal entity.
15.8 All words or terms used in this Sublease, regardless of the number or gender in which they are used,
shall be deemed to include any other number and any other gender as the context may require.
15.9 Each party represents and warrants to the other that it has dealt with no broker, agent, or other
intermediary who might be entitled to receive a commission in connection with the existence, execution
or delivery of this Sublease, and each shall indemnify, defend and hold the other harmless from and
against any breach of such respective representations and warranties.
15.10 The parties hereto acknowledge and agree that nothing contained in this Sublease is intended to
create between them a joint venture or a partnership of any kind, and the relationship between them
evidenced by this Sublease is as sublandlord and subtenant only.
15.11 This Sublease and its terms and conditions shall be governed by the laws of the Commonwealth of
Pennsylvania.
15.12 Sublandlord shall be given keys (or equivalent) to all locks on doors within or to the Sublet
premises.
9
Brandon Powers
383 North 26' St
Camp Hill, PA 17011
October 11, 2011
VIA CERTIFIED MAIL
Veronica G. Arevalo
Varonio D. Hernandez
640 Lopax Road
Harrisburg, PA 17112
RE: 700 Valley Road
Enola, PA
Dear Veronica and Varonio:
This letter is to serve as a Notice of Default for the Asset Purchase Agreement of the restaurant at 700
Valley Street, Enola Pa. signed dated 8 May 2011. Default language for this agreement is provided in
paragraph 6 of said agreement.
I have not received any payments from you since our agreement for the purchase of the restaurant
(located at the address referenced above) was signed back in May of 2011. In accordance with the terms
of the agreement, I request that you immediately forward the amount of $8,250.00 which reflects the
sums of all unpaid monies to date.
In addition, it is my understanding that no rent payments have been made to Mr. Barone or payments to
me for the sublease of the building and premises as set forth in the sub-lease signed 8 May 2011.. In
accordance with the terms of the sub-lease agreement, l request that you immediately forward the
amount of $16,200.00 which reflects the sums of all unpaid monies to date.
You continue to be in default of the agreement as set forth above. I expect full satisfaction of the above
within ten (10) days of receipt of this correspondence. Otherwise, I will promptly move forward to take
possession of the premise and its contents, as well as seek to collect judgment and pursue any and all
legal remedies available, including attorney fees and costs.
Respectfully,
BRANDON POWERS
CC: Paige Macdonald-Matthes, Serrattelli, Schiffman & Brown; Amy Custer, Mid-Penn Bank PLAINTIFF'S
EX IT
a
¦ Con 4 lete If R Iterns 1, 2, and 3. Wired.
¦ Print your r and address on the reverse
so that we can return the card to you.
¦ Attach this card to the back of the mailplece,
or on the front If space permits.
1. Article Addressed to:
A redo do
--
011
-boa
0 Agerd
(P, 9d Name)- 1 C. Dag Delivery
D. Is delivery address di fam t from item 1? 0 Yes
If YES, after delivery address below: 0 No
f f ? dMail 13 Duess mail
Env(k ? Registered O Return Receipt for Merchandise
0 Insured Mail M C.O.D.
4. Restricted Delivery? (Ek+ra Fee) 0 Yes
2. Article Number ?011 0110 0002 3993 1466
Ps Form 3811, February 24134 Dornest)c Retum Receipt 10259eo24A-1540
SERRATELLI, SCHIFFMAN & BROWN, P. C.
Paige Macdonald-Matthes, Esquire
Supreme Court ID No. 66266
2080 Linglestown Road
Harrisburg, PA 17110
(717) 540-9170
(717) 540-5481 facsimile
Email: PMacdonald-Matthes@ssbc-law.com
Attorneys for Plaintiff, Brandon C. Powers
`o -?
-a. C:)
77
?--n
s,
?n
BRANDON C. POWERS,
PLAINTIFF
V.
VERONICA G. AREVALO AND VARONIO D.
HERNANDEZ
DEFENDANTS
. IN THE COURT OF COMMON PLEAS
. CUMBERLAND COUNTY, PENNSYLVANIA
. DOCKET NO. 11- 8316 OA-V; 1-rerIk
. CIVIL ACTION-LAW
NOTICE PURSUANT TO 42 Pa.C.S. 42737.1
Please take notice that the Plaintiff in this matter has entered judgment by confession against you
in the amount of $14,593.25.
You are entitled to a petition to "strike" or "open" the judgment. In order to do so, you must
promptly file a petition with the Court of Common Pleas of Cumberland County, Pennsylvania, as
required by Rule 2959 of the Pennsylvania Rules of Civil Procedure. Any such petition can be filed with
the clerk or Prothonotary at the courthouse in Carlisle, Cumberland County.
A petition is a formal statement of your basis for challenging the judgment. You must include the
names of the parties at the top of the first page and the case number, which is shown above. The petition
must state your reasons for challenging the judgment in separate numbered paragraphs. You have to sign
the petition and include a sworn statement at the end of the document verifying that the facts you state in
the petition are true and accurate. You will waive any defense and objections not included in your
petition to strike or open. You must therefore make every effort to raise all possible issues and defenses
in your petition to strike or open in order to avoid waiving any claims.
If you elect to file a petition, you must meet the requirements of Rule 2959 of the Rules of Civil
Procedure. A full copy of Rule 2959 is attached to this Notice. You may also have to comply with local
rules of procedure in effect in the county where the judgment was entered.
If you do not file a petition challenging the judgment, the Plaintiff may take steps to collect on the
judgment by asking the Sheriff to seize your assets. Accordingly, you should immediately seek the
advice of attorney. If you wish to discuss the matter with an attorney but do not know how to find one,
you may request a referral by contacting the following agency:
CUMBERLAND COUNTY LAWYER REFERRAL SERVICE
32 S. BEDFORD STREET
CARLISLE, PA 17013
(717) 249-3166
Corporations may be unable to represent themselves in court. If the defendants include a
corporation, the corporation must appear through an attorney if it intends to challenge the judgment.
You may receive other papers and notices regarding the judgment. Those other papers do not
negate or override this Notice. Likewise, this Notice is not intended to and does not negate any of the
notices or information obtained in other papers that may be served upon you.
We reiterate that you are required to act promptly if you wish to seek relief from the judgment.
Under certain circumstances, you have only 30 days in which to file a petition after papers are served on
you. Even if the 30 day rule does not apply, you must act promptly in order to protect your interests.
Failing to act in a timely manner will render you unable to challenge the judgment at a later time.
If you were incorrectly identified and judgment was entered against you in error you may be
entitled to collect cost and reasonable attorney's fees as determined by the Court.
Respectfully Submitted,
Date: November 2, 2011o.?cn
Paige Macdonald-Matthes, Esquire
SERRATELLI, SCHIFFMAN,
& BROWN, P.C.
2080 Linglestown Road
Suite 201
Harrisburg, PA 17110
(717) 540-9170
Attorney for Plaintiff
Rule 2959. Striking off or Opening Judgment. Pleadings. Procedure.
(ax 1) Relief from 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 judgment 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 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 Rule 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 defense and objections which are not in the petition or answer.
(d) The petition and 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 deposition of the application to strike off the judgment. If the
evidence is produced which in a jury trial would require the issues to be submitted to the jury the court
shall open the judgment.
(f) The lien of the judgment or of any levy or attachment shall be preserved while the proceedings to
strike off or open the judgment are pending.
(g)(1) A judgment shall not be stricken or opened because of a creditor's failure to provide a debtor with
instructions imposed by an existing statute, if any, regarding procedures to follow to strike a judgment or
regarding any rights available to an incorrectly identified debtor.
(2) Subdivision (g)(1) shall apply to (1) judgments entered prior to the effective date of subdivision
(g)' which have not been stricken or opened as of the effective date and (2) judgments entered on or after
the effective date.
'Subd. (g) added by Order of Sept. 28, 2004, imd. effective.
SERRATELLI, SCHIFFMAN & BROWN, P. C.
Paige Macdonald-Matthes, Esquire
Supreme Court ID No. 66266
2080 Linglestown Road
r
Harrisburg, PA 17110 : ' " r ry
(717) 540-9170 ' ? C)
(717) 540-5481 facsimile
Email: PMacdonald-Matthes(a4ssbc-law. com
.Attorneys for Plaintiff, Brandon C. Powers
R
BRANDON C. POWERS, : IN THE COURT OF COMMON PLEAS
. CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFF
V.
. DOCKET NO. 11 -,S316 0_4w ( `Ter wt
VERONICA G. AREVALO AND VARONIO D. CIVIL ACTION-LAW
HERNANDEZ
DEFENDANTS
Notice Under Rule 2973.3
of Judgment and Execution Thereon
NOTICE OF DEFENDANTS' RIGHTS
TO: Veronica G. Arevalo
640 Lopax Road
Harrisburg PA 17112
Varonio D. Hernandez
640 Lopax Road
Harrisburg, PA 17112
A judgment for possession of real property has been entered against you and in favor of
the Plaintiff without prior notice or hearing based on a confession of judgment contained in a
promissory note or other paper allegedly signed by you. The Court has issued and the Sheriff
has served a Writ of Possession which directs the Sheriff to remove you from possession of real
property.
You may have legal rights to defeat the judgment or to prevent you from being removed
from the property or to regain possession of the property if you have been removed, if you did
not voluntarily, intelligently and knowingly give up your constitutional right to notice and
hearing prior to the entry of judgment or if you have defenses or other valid objections to the
judgment. ANY PETITION SEEKING RELIEF FROM THE JUDGMENT AND TO REGAIN
POSSESSION MUST BE FILED WITHIN THIRTY (30) DAYS AFTER THE DATE ON
WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS.
If you have been removed from the property without notice or the opportunity for a
hearing, you have a right to a prompt court hearing if you claim that you did not voluntarily,
intelligently and knowingly give up your rights to notice and hearing prior to the entry of the
judgment. If you wish to exercise this right, you must immediately fill out and sign the request
for a hearing which accompanies the writ of possession and deliver it to the Sheriff of
Cumberland County, at 1 Courthouse Square, Carlisle„ PA 17013.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU
DON'T HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP:
CUMBERLAND COUNTY LAWYER REFERRAL SERVICE
32 S. BEDFORD STREET
CARLISLE, PA 17013
(717) 249-3166
BRANDON C. POWERS,
PLAINTIFF
V. ;
VERONICA G. AREVALO AND VARONIO D.
HERNANDEZ
DEFENDANTS
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Civil lerw?
DOCKET No. 11-8,316
CIVIL ACTION-LAW
PETITION TO STRIKE JUDGMENT
REQUEST FOR PROMPT HEARING
I hereby certify that I did not voluntarily, intelligently and knowingly give up my right to
notice and hearing prior to the entry of judgment. I petition the court to strike the judgment on
this ground and request a prompt hearing on this issue.
I verify that the statements made in this Request for Hearing are true and correct. I
understand that false statements herein are made subject o the penalties of 18 Pa.C.S. § 4904
relating to unsworn falsification to authorities.
Notice of the Hearing shall be given to me at
Street address
City, State
Telephone number
Dated:
Defendant(s)
RULE 2967. PETITION TO STRIKE JUDGMENT. FORM.
BRANDON C. POWERS,
PLAINTIFF
V.
VERONICA G. AREVALO AND VARONIO D.
HERNANDEZ
DEFENDANTS
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
DOCKET No. l1- 1 (TarVA
CIVIL ACTION-LAW
CERTIFICATION
I hereby certify the precise last known addresses of the parties are as follows:
Defendants:
Veronica G. Arevalo
640 Lopax Road
Harrisburg PA 17112
Varonio D. Hernandez
640 Lopax Road
Harrisburg, PA 17112
Plaintiff:
Brandon C. Powers,
851 Kiehl Drive
Lemoyne, PA 17043
w
Respectfully Submitted,
Paige Macdonald-Matthes, Esquire
SERRATELLI, SCHIFFMAN,
& BROWN, P.C.
2080 Linglestown Road
Suite 201
Harrisburg, PA 17110
(717) 540-9170
Attorney for Plaintiff
Date: November 2, 2011
? e
BRANDON C. POWERS,
PLAINTIFF
V.
VERONICA G. AREVALO AND VARONIO D.
HERNANDEZ
DEFENDANTS
TO: Veronica G. Arevalo
640 Lopax Road
Harrisburg PA 17112
Varonio D. Hernandez
640 Lopax Road
Harrisburg, PA 17112
: IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
: DOCKET No. << - 8316 Ll i„ i l-I'erwu
CIVIL ACTION-LAW
NOTICE
Pursuant to Pa.R.C.P. 236, you are hereby notified that judgment by confession has been
entered against you in the above-captioned matter.
Date: It N I? onotary
?s"y t?f
r
SERRATELLI, SCHIFFMAN & BROWN, P. C.
Paige Macdonald-Matthes, Esquire
Supreme Court ID No. 66266
2080 Linglestown Road
Harrisburg, PA 17110 r,1,
(717) 540-9.170 °
(717) 540-5481 facsimile
Email: PMacdonald-Matthey@,ssbc-law.com ? '-'r
Attorneys for Plaintiff, Brandon C. Powers
BRANDON C. POWERS,
PLAINTIFF
V.
L 410 iv
1W)4
VERONICA G. AREVALO AND VARONIO D.
HERNANDEZ
eA
DEFENDANTS 1_)11 , _
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
DOCKET NO. - U ? g ` '` T k.,
CIVIL ACTION-LAW
PRAECIPE FOR WRIT OF POSSESSION UPON A CONFESSED JUDGMENT
TO THE PROTHONOTARY:
Please issue a Writ of Possession upon the judgment in ejectment entered by confession
in the above matter.
ILI) VOUL: I ?
Certification
I certify that this
This Praecipe is based upon a judgment entered by confession, and
Notice pursuant to Rule 2973.3 will be served with the Writ of Possession.
Respectfully submitted,
SERRATELLI, SCHIFFMAN,
& BROWN, P.C.
mow`
Paige Macdonald-Matthes, Esquire
Pa. ID Nos. 66266
2080 Linglestown Road, Suite 201
Harrisburg, PA 17110-9670
(717)540-9170
Date: November 2, 2011
O
$aq.oo PA Arty
a7.50 L' BF
l4.00
65 .50 - Pb ATT/
*a.oo DuEo',,
P- .2W 717
LorI clf ?
10f 2
WRIT OF POSSESSION (Ejectment Proceedings PRCP3160-3165 etc.)
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
BRANDON C. POWERS
851 KIEHL DRIVE
LEMOYNE, PA 17043
VS.
No. 11-8316 Civil Term
VERONICA G. AREVALO and
VARONIO D. HERNANDEZ
640 LOPAX ROAD
HARRISBURG, PA 17112
Costs
Attorney's $ (p6.50
Plaintiff s $
Prothonotary $ 2.00
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND:
To the Sheriff of Cumberland County, Pennsylvania
(l) To satisfy the judgment for possession in the above matter you are directed to deliver
possession of the following described property to: (Plaintiff (s))
BRANDON C. POWERS
being: (Premises as follows):
700 VALLEY ROAD, ENOLA, PA 17025
(2.) To satisfy the costs against the defendant (s) you are directed to levy upon any
property of the defendant (s) and sell his/her (or their) interest therein.
Date 11/2i irl_
"(Seal)
Davl uell, Prot* notary,
Common Pleas Court of Cumberland County, PA
2of2
No 11-8316 Civil Term
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
BRANDON C. POWERS
VERONICA G. AREVALO and
VARONIO D. HERNANDEZ
VS.
WRIT OF POSSESSION
P.R.C.P. 3160-3165 ETC.
Costs
Att'y $ &5.50
Plff (s) $
Prothy $ 2.00
Sheriff $
Plaintiff (s) attorney name and address:
PAIGE MACDONALD-MATTHES, ESQUIRE ID# 66266
SERRATELLI, SCHIFFMAN & BROWN, PC
2080 LINGLESTOWN ROAD
HARRISBURG, PA 17110
717-540-9170
Attorney for Plaintiff (s)
Where papers may be served
By virtue of this writ, on the day of , . I caused the within
named , to have possession of the premises described with the
appurtenances, and
Sworn and subscribed to before me this
Day of __ ,
Prothonotary
So Answers,
Sheriff
By
Deputy
John M. Ogden, Esquire ' ~4`0' ~~~~~T'Aky
HOLT & OGDEN, LLP ~ ~ V 7
34 North Queen Street
.;,.<< a=s_
York, PA 17403 i~.
nL )L N D CO A T l`
(717) 846-0550 r`E;=ry~SYLVANlA
f (717) 846-0687
ogdenjmGgmail.com
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
PENNSYLVANIA
BRANDON C. POWERS, NO. 11-8316
Plaintiff, CIVIL ACTION - LAW
v.
VERONICA G. AKEVALO and
VARANIO D. HERNDANDEZ,
Defendants.
PETITION TO STRIKE OFF OR OPEN JUDGMENT BY CONFESSION
AND REQUEST FOR STAY OF EXECUTION
FROM THE WRIT OF POSSESSION
NOW COMES the Defendants, VERONICA G. AREVALO and
VARANIO D. HERNDANDEZ, by their counsel, John M. Ogden, of the
Law Firm of Holt & Ogden, LLP and files this Petition Strike Off or Open
Judgment by Confession and Request for Stay of Execution from the Writ of
Possession, stating the following facts in Support thereof:
1. The Plaintiff f iled a complaint in Confession of Judgment against the
Defendants on November 2, 2011.
2. The Defendants were served at their homes on or about November 6,
2011 by the Dauphin County Sheriff.
3. The Defendants file this under Pa.R.C.P. 2959. Relating to Striking off
or Opening Judgment. Pleadings. Procedure.
4. The Petition is filed in a timely manner.
5. In order to prevail in a petition to open a confessed judgment, the
Petitioner must A) act promptly to f ile a petition, B) raise a meritorious
defense and C) produce suff icient evidence to require submission of the
case to a jury. Rait Partnerhsip, LP v. E Pointe Properties I, L TD, 957
A.2d 1275, 1277 (Pa.Super. 2008).
6. The Defendants filed this petition as soon as practical after being
served with the Confession of Judgment by the Dauphin County
Sheriff, whom was deputized by the Cumberland County Sheriff.
7. A proposed Answer & New Matter is attached hereto and raises a
meritorious defense as Exhibit "A."
8. The Petitioner has raised significant facts which would require
submission of the case to the jury.
WHEREFORE, the Plaintiff respectfully requests that this Honorable
Court strike-off the judgment or open the Judgment.
REQUEST FOR STAY OF EXECUTION OF THE WKIT OF POSSESSION
9. The Petitioner incorporates paragraph 1 through 8 herein.
10. The Respondent has alleged in its complaint that it is entitled to
judgment in ejectment and a writ of possession of the real estate
located at 700 Valley Road, Enola, PA.
11. The Respondent does not have a clear right to possess the real estate
as he has not obtained the written permission of the owner, Giuseppe
-2-
Barone to enter into the Agreement of Sublease and he is in default of
the Triple Net Commercial Lease Agreement, dated July 1, 2008.
12. The Petitioners are in possession of the real estate with the express
consent of the owner, Giuseppe Barone. ,
13. The Petitioners will be immediately and irreparably harmed if the
Respondent is permitted to eject them from the real estate without the
benefit of a full and fair hearing to determine the merits of the case.
14. If the Respondent are permitted to eject the Petitioners from the real
estate, the Respondent would have no right of possession of the real
estate as his lease agreement with the owner is in default.
15. The Writ of Possession directs the Cumberland County Sheriff to
deliver possession of the real estate to Brandon Powers. Brandon
Powers has no right to possess the real estate as he is in default of the
Triple Net Commercial Lease Agreement.
WHEREFORE, the Plaintiff respectfully requests that this Honorable
Court stay execution of the Writ of Possession pending a hearing in this
matter.
Respectfully Submitted,
HOLT & OGDEN, LLP
BY:
M. ~Ogden
-3-
John M. Ogden, Esquire
HOLT & OGDEN, LLP
34 North Queen Street
York, PA 17403
(717) 846-0550
f (717) 846-0687
ogdenjm@gmail.com
IN THE COUKT OF COMMON PLEAS OF CUMBERLAND COUNTY
PENNSYLVANIA
BRANDON C. POWERS NO. 11-8316
Plaintiff,
CIVIL ACTION - LAW
v.
VERONICA G. AREVALO and
VARANIO D. HERNDANDEZ,
Defendants.
ANSWER, NEW MATTER & COUNTER CLAIM
NOW COMES the Defendants, VERONICA G. AREVALO and
VARANIO D. HERNDANDEZ, by their counsel, Holt & Ogden, LLP and
.
files this Answer stating the following facts:
1. Admitted.
2. Admitted.
3. Admitted.
4. No answer is required.
5. Admitted.
COUNT I- CONFESSION OF JUDGMENT IN ASSUMPSIT
(Pa.R.C.P.2951)
6. Admitted.
-1- 'l EX IBIT
7. Denied. Denied that the Defendants have failed to make the monthly
payments under the APA for the months of June 2011, July 2011,
August 2011, September 2011 and October 2011. The Defendants
have declared the APA null and void due to the fact that the Plaintiff
had no right to sell the equipment to the Defendants. Within a few
days of the Defendants taking over the property, the Cumberland
County Sheriff appeared during the lunch hour and served the
Defendants with a Writ of Execution in favor of Ferraro Foods, Inc.
Ferraro Foods, Inc., had judgment against Valley Road Restaurant,
Inc., and Brothers Pizza and Brandon Powers on November 17, 2009
in the amount of $5,566.32.
The Defendants also learned that MidPenn Bank has a UCC-1 filed
against all of the personal property inside the real property located at
700 Valley Road, Enola, PA and that the Plaintiff was in default of the
underlying note with MidPenn Bank at the time he entered into the
APA with the Defendants. MidPenn Bank has come to the property
shortly after the Defendants took possession and had an auctioneer
inventory the property for sale.
In addition to Ferraro Foods and MidPenn Bank, the Defendants
learned from the property owner, Giuseppe Barone that the Plaintiff
owed water, sewer, taxes, refuse charges and telephone charges and
the Defendants right to operate the business was in jeopardy.
-2-
8. Denied. The payments are not due to the Plaintiff as he had no right
to sell the assets listed in the APA. Paragraph 4(a) of the Asset
Purchase Agreement states:
4. REPRESENTATIONS AND WARRANTIES. As a material
inducement to the parties to enter into this Agreement and to close
hereunder, the parties make the following representation and warrants
as of the date of thereof and as of the date of Closing.
a. Authority. Buyers and Seller each have full power, right and authority
to enter into and perform their respective obligations under this
Agreement.
Paragraph 4(b) of the Asset Purchase Agreement, states:
4(b) Good Title. Seller owns outright and has good and indefeasible and
marketable title to all of the Assets which will be able to [be] delivered
contemporaneously with final payment from Buyer, all property free
and clear of all liens, security interest, mortgages, pledges, restrictions,
prior assignments, encumbrances and claims of any kind, unless
otherwise stated in this Agreement.
Paragraph 4(c) of the Asset Purchase Agreement states:
4(c) No Litigation, transaction Not a Breach. There is no litigation,
proceedin s, demands letters, claims or investigations pending or
threatene~ against the parties or relating to or affecting the Business
or any of the Assets to be nurchased by Buyer hereunder. There is no
litigation pending, or to the knowledge of the Seller, threatened,
between or among Seller against it by its employees.
These paragraphs were all false at the time the Plaintiff entered into
the APA with the Defendants and constituted, by the terms of the
APA, drafted by the Plaintiff, material inducements and
misrepresentations. There were lawsuits filed and lawsuits threatened
that are the very core of the APA at the time that the Plaintiff induced
the Defendants to enter into the APA.
-3-
9. Denied. Shortly after taking possession of the real estate, the
Defendants learned that the Plaintiff had been evicted by the owner of
the real estate, Giuseppe Barone, on September 29, 2009. This was
8 months prior to entering into the APA with the Defendants. These
documents are incorporated by reference and docketed at 09-6533.
The complaint was served on the Plaintiff by the Cumberland County
Sheriff on October 29, 2009.
Moreover, the Plaintiff had no authority to enter into the Agreement of
SubLease (AOS) with the Defendants. The Triple Net Commercial
Lease between Giusenpe Barone and Giovanni Barone and Brandon
C. Powers, which is referenced in the AOS between the parties
requires the landlord to consent, in writing before any AOS is
executed. (See paragraph 15 of the Triple Net Commercial Lease).
The Plaintiff did not obtain the written consent before entering into the
AOS. The Triple Net Commercial Lease is attached to the suit
between Barone and Powers.
Shortly after the Defendants took possession of the real estate, the
owner of the real estate, Giuseppe Barone advised them that they had
to pay rent to him and not to Brandon Powers if they wanted to stay in
the property. The Defendants did pay the Plaintiff $2,800.00 via a
credit card machine which was in the Plaintiff's name and used from
May 15, 2011 through June 15, 2011, which was supposed to be
-4-
applied to the f irst month's rent and which leave a theoretical def icit of
$440.00.
10. Denied. The AOS was totally invalid. See paragraph 9.
11. Admitted. By way of further Answer, the letter from the Plaintiff is
invalid in that the Plaintiff had no right to AOS the real estate and no
right to sell the assets.
12. Denied. The APA is not enforceable as the Plaintiff had no right to
sell the assets which were subject to a note, security agreement and
UCC-1 in favor MidPenn Bank and are in default.
13. Denied. The AOS is not enforceable as the Plaintiff had no right to
enter into the AOS as he did not obtain the landlord's written consent
and he was evicted from the real estate at the time that the AOS was
executed. Paragraph 14 of the AOS provides that:
Sublease shall not be effective until (i) it is executed by Sublandlord
and Subtenant, and (ii) approved by Landlord and the holder of any
mortgage encumbering the Building. If the Landlord or such
mortgagee shall refuse to consent to this Sublease, Sublandlord shall
not be obligated to take any action to obtain such consent, and this
Sublease thereupon shall be void and of effect.
The AOS is null and void.
14. Denied. As stated earlier, the APA is null and void due to material
misrepresentations and fraud committed by the Plaintiff. i~
15. Denied. As stated earlier, the AOS is null and void due to material
misrepresentations, fraud committed by the Plaintiff and by its own
terms as stated in paragraph 13, above.
-5-
16. Denied. The Defendants have received no assets as the result of the
APA and therefore, the APA is null and void. In fact, the Defendants
are entitled to a refund of the $15,000.00 paid to the Plaintiff under
the APA.
17. Denied. The AOS is null and void and therefore no money is owed to
the Plaintiff on the AOS. In fact, the Defendants are entitled to a
refund of the $2,800.00 paid to the Plaintiff.
18. Denied. The judgment sought is against a natural person.
19. Admitted.
20. Admitted.
21. Admitted.
22. Admitted.
WHEAEFOAE, the Defendants hereby pray that this Honorable Court
dismiss the complaint for confession of judgment and enter judgment in
favor of the Defendants and against the Plaintiff.
COUNT II - CONFESSION OF JUDGMENT IN EJECTMENT '
(Pa.R.C.P. 2971)
23. Admitted.
24. Admitted.
25. Denied. The APA and the AOS are null and void due to the
misrepresentations of the Plaintiff and by their own terms as explained
above.
-6-
26. Denied. The Plaintiff is not entitled to any payments under the APA
or the AOS.
27. Denied. The Defendants have paid the owner of the real estate rent
for September 2011 and October 2011. The Defendants have no
legal obligation to pay the Plaintiff rent.
28. Denied. See detailed explanation as to why the AOS is null and void.
29. Admitted that the Plaintiff sent a letter to the Defendants.
30. Denied. The Plaintiff has been evicted from the real estate and has no
right to possess the real estate.
31. Denied. The Plaintiff has been evicted from the real estate and has no
right to possess the real estate.
32. Denied. The APA and the AOS are null and void. The APA due to
the Plaintiff's fraud and and the AOS by its own terms.
33. Denied. The AOS is null and void
34. Denied. The APA and the AOS are null and void.
35. Denied. The APA and the AOS are null and void.
36. Denied. The judgment sought is against a natural person.
37. Admitted.
38. Admitted.
39. Admitted.
40. Admitted.
WHEREFORE, the Defendants hereby pray that this Honorable Court
-7-
dismiss the complaint f or confession of judgment and enter judgment in
favor of the Defendants and against the Plaintiff.
NEW MATTER
41. The Plaintiff, Brandon Powers committed fraud upon the Defendant,
who do not speak english very well. The Plaintiff had no authority to
sell the business to them.
42. The Plaintiff, Brandon Powers could not perform under the APA even
if he did have the authority to convey the assets to the Defendants.
43. The Plaintiff, Brandon Powers has no authority or right to collect funds
from the Defendants as the Defendants have declared the APA null
and void due to the fact that the Plaintiff had no right to sell the
equipment to the Defendants.
44. The Plaintiff, Brandon Powers had no right to sell the equipment to
the Defendants as it was under a levy by the Cumberland County
Sheriff under a Writ of Execution in favor of Ferraro Foods, Inc.
Ferraro Foods, Inc., against Valley Road Restaurant, Inc., and Brothers
Pizza and Brandon Powers, dated November 17, 2009 in the amount
of $5,566.32. That writ has since been lifted due to the Defendants
advising Ferraro Foods, Inc. of a UCC-1 in favor of MidPenn Bank.
45. The Plaintiff, Brandon Powers had no right to sell the equipment to
the Defendants as it was secured by a UCC-1 filed against all of the
personal property inside the real property located at 700 Valley Road,
-8-
MidPenn Bank at the time he entered into the APA with the
Defendants. The UCC-1 is of record and filed at file number
008072901927, dated 7/28/2008.
46. The Plaintiff, Brandon Powers committed fraud in the execution of the
APA, in that he made representations contained in paragraph 4 of the
APA which were material to the transaction at hand and made falsely,
with knowledge of its falsity or recklessness as to whether it is true or
false and with the intent of misleading another into relying on it and
justifiable reliance on the misrepresentation resulting injury proximately
caused by the reliance.
47. The Plaintiff, Brandon Powers committed fraud in the execution of the
AOS because he had been evicted from the real estate by the owner,
Giuseppe Barone, on September 29, 2009, 8 months prior to
entering into the AOS with the Defendants. These documents are incorporated by reference and docketed at 09-6533. The complaint
was served on the Plaintiff by the Cumberland County Sheriff on
October 29, 2009.
48. The Plaintiff, Brandon Powers had no authority to enter into the AOS
with the Defendants. The Triple Net Commercial Lease between
Giuseppe Barone and Giovanni Barone and Brandon C. Powers,
which is referenced in the AOS between the parties requires the
landlord to consent, in writing before any AOS is executed. (See
-9-
landlord to consent, in writing before any AOS is executed. (See
paragraph 15 of the Triple Net Commercial Lease). The Plaintiff did
not obtain the written consent before entering into the AOS. The
Triple Net Commercial Lease is attached to the suit between Barone
and Powers.
49. The AOS is not enforceable as the Plaintiff had no right to enter into
the AOS as he did not obtain the landlord's written consent and he
was evicted from the real estate at the time that the AOS was
executed. Paragraph 14 of the AOS provides that:
Sublease shall not be effective until (i) it is executed by Sublandlord
and Subtenant, and (ii) approved by Landlord and the holder of any
mortgage encumbering the Building. If the Landlord or such
mortgagee shall refuse to consent to this Sublease, Sublandlord shall
not be obligated to take any action to obtain such consent, and this
Sublease thereupon shall be void and of effect.
The AOS is null and void by its own terms.
50. The Plaintiff, Brandon Powers has history of defrauding persons using
the real estate which is the subject of this action, located at 700 Valley
Road, Enola, PA 17025. The Plaintiff defrauded a defendant,
Anthony Northrup out of $10,000.00 in similar scheme. (See
Cumberland County Docket No. 08-7352).
51. The Defendants plead all affirmative defenses available as a New
Matter.
WHEREFORE, the Defendants hereby pray that this Honorable Court
dismiss the complaint for confession of judgment and enter judgment in
-10-
COUNTERCLAIM
COUNT I - FRAUD
53. The Defendants incorporate paragraphs 1 through 52 into this count.
54. The Plaintiff, Brandon Powers committed f raud in the execution of the
APA, in that he made representations contained in paragraph 4 of the
APA which were material to the transaction at hand and made falsely,
with knowledge of its falsity or recklessness as to whether it is true or
false and with the intent of misleading another into relying on it and
justifiable reliance on the misrepresentation resulting injury proximately
caused by the reliance.
55. As a result of the Plaintiff's fraud, the Defendants have suffered
damages in the amount of $15,000.00 representing the down
payment and $2,800.00 representing payments towards the first
month's rent under the illegal sublease and other unliquidated
damages.
WHEREFORE, the Defendants hereby pray that this Honorable Court
enter judgment in favor of the Defendant and against the Plaintiff in the
amount of $17,800, together with other such damages as the court deems
to be proper and costs together with costs of suit.
COUNT II
UNJUST ENRICHMENT
56. The Defendants incorporate paragraphs 1 through 53 into this count.
-11- ,I
56. The Defendants incorporate paragraphs 1 through 53 into this count.
57. The Plaintiff fraudulently sold to the Defendants assets under an APA
and entered into an AOS which he had no right to enter into.
58. The Defendants paid to the Plaintiff the sum of $15, 000. 00 under the
APA, but did not receive any assets under the APA because the
Plaintiff had no right to sell the assets, as they were secured by a UCC-
1 and the security agreement was in default at the time of the
execution of the APA.
59. The Defendants paid to the Plaintiff the sum of $2,800.00 under the
AOS, but did not receive any protection because the AOS was null and
void by its own terms (see paragraph 14 of the AOS) as landlord
refuses to consent, leaving the Defendants at-risk.
60. The Plaintiff would be unjustly enriched if he were permitted to retain
$15,000.00 under the APA and $2,800.00 under the AOS when had
unclean hands, committed fraud and had no right or authority to sell
the assets or sublease the real estate.
WHEREFORE, the Defendants hereby pray that this Honorable Court
enter judgment in f avor of the Defendant and against the Plaintiff in the
amount of $17,800, together with other such damages as the court deems
to be proper and costs together with costs of suit.
Respectfully Submitted,
HOLT & OGDEN, LLP
DATED: -12c
~
BY:
ohn M. Ogden
-13-
John M. Ogden, Esquire
HOLT & OGDEN, LLP
34 North Queen Street
York, PA 17403
(717) 846-0550
f (717) 846-0687
ogdenjm@gmail.com
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
PENNSYLVANIA
BRANDON C. POWERS NO. 11-8316
Plaintiff,
CIVIL ACTION - LAW
v.
VERONICA G. AREVALO and
VARANIO D. HERNDANDEZ,
Defendants.
CERTIFICATION OF SERVICE
I am the attorney for the above captioned party in this action, and
hereby certify that on this date, I served a true and correct copy of the
Petition to Strike off or Open Judgment by Confession and Request for Stay
of Execution from the Writ of Possession and proposed Order through the
United States Mail, first class, postage pre-paid, to the following address:
PAIGE MACDONALD-MATHES, ESQUTAE
SERRATELLI, SCHIFFMAN & BROWN, PC
2080 LINGELSTOWN ROAD
HARRISBURG, PA 17110
Respectfully Submitted,
HOLT & OGDEN, LLP
.
DATED :
BY:
SHERIFF'S OFFICE OF CUMBERLAND COUNTY
Ronny R Anderson FILED-OFFICE
y , o THE PROTHOI;OTAFt";.
Sheriff
Jody S Smith N
I I NOV 16 AM 9' 24
Chief Deputy
Richard W Stewart CUMBERLAND COUHT`?
Solicitor PENNSYLVANIA
Brandon C. Powers Case Number
vs. 2011-8316
Veronica G. Arevalo (et al.)
SHERIFF'S RETURN OF SERVICE
11/07/2011 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: Veronica G. Arevalo, but was unable to locate her in
his bailiwick. He therefore deputized the Sheriff of Dauphin County, Pennsylvania to serve the within
Notice Pursuant to 42 Pa.C.S. 2737.1, Rule 2967 Petiton to Strike Judgment Form, Notice Under Rule
2973.3, Confession of Judgment for Money, Notice and Complaint in Confession of Judgment and Writ of
Possession according to law.
11/07/2011 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: Varonio D. Hernandez, but was unable to locate him in
his bailiwick. He therefore deputized the Sheriff of Dauphin County, Pennsylvania to serve the within
Notice Pursuant to 42 Pa.C.S. 2737.1, Rule 2967 Petiton to Strike Judgment Form, Notice Under Rule
2973.3, Confession of Judgment for Money, Notice and Complaint in Confession of Judgment and Writ of
Possession according to law. --
11/09/2011 11:45 AM - Dauphin County Return: And now November 9, 2011 at 1145 hours I, Jack Lotwick, Sheriff of
Dauphin County, Pennsylvania, do hereby certify and return that I served a true copy of the within Notice
Pursuant to 42 Pa.C.S. 2737.1, Rule 2967 Petiton to Strike Judgment Form, Notice Under Rule 2973.3,
Confession of Judgment for Money, Notice and Complaint in Confession of Judgment and Writ of
Possession, upon the within named defendant, to wit: Varonio D. Hernandez by making known unto
Varonio Hernandez, Brother of Defendant at 640 Lopax Road, Harrisburg, Pennsylvania 17112 its
contents and at the same time handing to him personally the said true and correct copy of the same.
11/09/2011 11:45 AM - Dauphin County Return: And now November 9, 2011 at 1145 hours I, Jack Lotwick, Sheriff of
Dauphin County, Pennsylvania, do hereby certify and return that I served a true copy of the within Notice
Pursuant to 42 Pa.C.S. 2737.1, Rule 2967 Petiton to Strike Judgment Form, Notice Under Rule 2973.3,
Confession of Judgment for Money, Notice and Complaint in Confession of Judgment and Writ of
Possession, upon the within named defendant, to wit: Veronica G. Arevalo by making known unto Varonio
Hernandez, adult in charge at 640 Lopax Road, Harrisburg, Pennsylvania 17112 its contents and at the
same time handing to him personally the said true and correct copy of the same.
SHERIFF COST: $53.00
November 14, 2011
SO ANSWERS,
RON R ANDERSON, SHERIFF
iC colln`: y,iUllG j`'E;E t(. to eoso't. ir....
4-
John M. Ogden, Esquire
HOLT & OGDEN, LLP
34 North Queen Street
York, PA 17403
(717) 846-0550
f (717) 846-0687
ogdenjm@gmail.com
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
PENNSYLVANIA
BRANDON C. POWERS
Plaintiff,
v.
VERONICA G. AREVALO and
VARANIO D. HERNDANDEZ,
Defendants.
NO. 11-8316
CIVIL ACTION - LAW
JUDGE ASSIGNED: GUIDO
RELATED CASE: 09-6533
ANSWER TO PLAINTIFF'S MOTION TO STRIKE DEFENDANTS'
PETITION TO STRIKE OFF OR OPEN JUDGMENT BY CONFESSION
AND REQUEST FOR STAY OF EXECUTION
FROM THE WRIT OF POSSESSION FOR NON-COMPLIANCE WITH
THE PENNSYLVANIA RULES OF CIVIL PROCEDURE.
Filed By: John M. Ogden, Esquire, for the Defendants
ATTORNEY FOR PLAINTIFF
FOR THE DEFENDANTS:
Paige Macdonald-Mathes, Esquire
Serratelli, Schiffman & Brown, Pc
2080 Lingelstown Road
Harrisburg, Pa 17110
(717) 540-9170
F (717) 540-5481
John M. Ogden, Esquire
Holt & Ogden, LLP
34 North Queen Street
York, PA 17403
(717) 846-0550
f (717) 846-0687
-ap
John M. Ogden, Esquire
HOLT & OGDEN, LLP
34 North Queen Street
York, PA 17403
(717) 846-0550
f (717) 846-0687
ogdenjm@gmail.com
F iLED-OF F IC
C F THE PROTHONOT ."11
ZOI I NOY 23 A1410:52
CUMBERLAND COUNT'i'
PENNSYLVANIA
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
PENNSYLVANIA
BRANDON C. POWERS,
Plaintiff,
NO. 11-8316
CIVIL ACTION - LAW
V.
VERONICA G. AREVALO and
VARANIO D. HERNDANDEZ,
Defendants.
ANSWER TO PLAINTIFF'S MOTION TO STRIKE DEFENDANTS'
PETITION TO STRIKE OFF OR OPEN JUDGMENT BY CONFESSION
AND REQUEST FOR STAY OF EXECUTION
FROM THE WRIT OF POSSESSION FOR NON-COMPLIANCE WITH
THE PENNSYLVANIA RULES OF CIVIL PROCEDURE.
NOW COMES the Defendants, VERONICA G. AREVALO and
VARANIO D. HERNDANDEZ, by their counsel, John M. Ogden, of the
Law Firm of Holt & Ogden, LLP and files this Answer to Plaintiff's Petition
to Strike Off or Open Judgment by Confession and Request for Stay of
Execution from the Writ of Possession, stating the following facts in Support
thereof:
1. Admitted that the parties entered into an Asset Purchase Agreement
(APA). Denied that the Plaintiff had the right to enter into the
agreement as he did not have the authority or the ability to alienate the
assets due to the fact that he was in default of the security agreement
securing the assets.
2. Admitted that the parties entered into an Agreement of Sublease
(AOS). Denied that the Plaintiff had the right to enter into the AOS
as he was in default of his lease agreement with the landlord and the
terms of the lease agreement prohibited subleasing without first
obtaining written consent to do so.
3. Denied. The Defendants are not in default of the AOS or the APA. It
is the Plaintiff who is in default.
4. Admitted.
5. Admitted.
6. Admitted.
7. Admitted.
8. Denied. As stated in the Petition to Strike/ Open all of the reasons
are set forth as to why the AOD and APA are fraudulent and null and
void.
9. Denied. The Plaintiffs did serve the Defendants with the notices
required under Pa.R.C.P. 2973.3.
10. Admitted that the Rule cited, 2973.13(b) is as stated. However, the
Defendants Petition to Strike/Open is not filed under issues related to
whether the defendant voluntarily, intelligently and knowingly waived
the right to notice and hearing prior to the entry of judgment. The
Petition to Strike/ Open is filed under Pa.R.C.P. 2959, relating to
-2-
Striking-off or Opening Judgment; Pleadings; Procedure, which states
in part: "Relief from a judgment by confession shall be sought by
petition."
11. Denied. Pa.R.C.P. 2973.3 provides for a petition to strike limited to
whether the defendant voluntarily, intelligently and knowingly waived
the right to notice and hearing prior to the entry of judgment. In that
case, the Request for Prompt Demand is served on the Sheriff.
12. Denied. Pa.R.C.P. 2973.3 provides for a petition to strike limited to
whether the defendant voluntarily, intelligently and knowingly waived
the right to notice and hearing prior to the entry of judgment. In that
case, the Request for Prompt Demand is served on the Sheriff.
13. Denied. The Defendants did not fail to provide the Sheriff with said
notice of prompt hearing under Pa.R.C.P. 2973.3, which provides for
a petition to strike limited to whether the defendant voluntarily,
intelligently and knowingly waived the right to notice and hearing prior
to the entry of judgment. The Defendants are seeking to strike/open
the judgment Pa.R.C.P. 2959, which requires that all grounds be
stated in one petition. Section 2959(f) states that:
"The lien of the judgment or any levy or attachment shall be preserved
while the proceedings to strike-off or open the judgment is pending."
14. Denied. The Defendants Petition to Strike/Open includes a Request
for a Hearing and a Request for Stay of Execution of the Writ of
-3-
Possession. The language concerning the Request for a Prompt
Hearing concerns the issue limited to whether the defendant
voluntarily, intelligently and knowingly waived the right to notice and
hearing prior to the entry of judgment, under Pa.R.C.P. 2959(a)(2)
and Pa.R.C.P. 2973.3(b).
15. Denied. See Pa.R.C.P. 2959 and the answer above.
16. Denied. There is no non-compliance with the procedures. The
Defendants are not proceeding under Pa.R.C.P. 2973.3(b) or under
Pa.R.C.P. 2967. Rather, the Defendants are proceeding under
Pa.R.C.P. 2959.
17. Admitted that at the time of the filing, the matter was not assigned to a
judgment, however as of this date the Honorable Edward E. Guido has
been assigned.
18. Admitted. The Defendants request an immediate hearing on the
motion.
WHEREFORE, the Defendants respectfully request that the Honorable
Court dismiss the motion and grant the Defendants request for an immediate
stay and to preserve the status quo.
Respectfully Submitted,
HOLT & OGDEN, LLP
John M. Ogden, Esquire
HOLT & OGDEN, LLP
34 North Queen Street
York, PA 17403
(717) 846-0550
f (717) 846-0550
ogdenjm@gmail.com
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
PENNSYLVANIA
BRANDON C. POWERS NO. 11-8316
Plaintiff,
CIVIL ACTION - LAW
V.
VERONICA G. AREVALO and
VARANIO D. HERNDANDEZ,
Defendants.
CERTIFICATION OF SERVICE
I am the attorney for the above captioned party in this action, and
hereby certify that on this date, I served a true and correct copy of the
Answer to Motion to Strike Defendants' Petition to Strike off or Open
Judgment by Confession and Request for Stay of Execution from the Writ of
Possession for Non-Compliance with the Pennsylvania Rules of Civil
Procedure, through the United States Mail, first class, postage pre-paid, or
hand delivery to the following address:
PAIGE MACDONALD-MATHES, ESQUIRE
SERRATELLI, SCHIFFMAN & BROWN, PC
2080 LINGELSTOWN ROAD
HARRISBURG, PA 17110
Respectfully Submitted,
HOLT & OGDEN, LLP
DATED:
BY: I A
C rv
o t
?!
-4
7 M
i
.7p r
.Z rC
?'D
tV r7l
'ICJ
6 C-)
IN THE COURT OF COMMON CUMBERLAND COUNTY
PENNSYLVANIA
BRANDON C. POWERS
Plaintiff,
V.
VERONICA G. AREVALO and
VARANIO D. HERNDANDEZ,
Defendants.
CIVIL ACTION - LAW
NO. 11-8316
ORDER GRANTING TEMPORARY STAY OF EXECUTION OF
THE WRIT OF POSSESSION AND ORDER FOR HEARING
ON THE PETITION TO STRIKE OFF OR OPEN JUDGMENT BY
CONFESSION AND REQUEST FOR STAY OF EXECUTION
FROM THE WRIT OF POSSESSION
, - VA6ft this a ?day of Pore*
AND NOW
, 2011, upon
consideration of the Petition to Strike off or Open Judgment by Confession
and Request for Stay of Executi n from the Writ of Possession, a,. /i40A?
triaL.LM eu f
The Sheriff of Cumberland County shall not execute the Writ of
Possession until rther der court, otpX0D
1 ,
i
A hearing is set for the 91 tA day of 201 1 in
courtroom number a of the Cumberland County Courthouse. e6ds ....rtt"
e ,' y opene an t o Defen ant M57 av
BY THE COURT,
J.
DISTRIBUTION: NIOJ'- d
6,aige MacDonald, Esquire eqie*
<<
John M. Ogden, Esquire i11ail?o
t
BRANDON C. POWERS,
PLAINTIFF
V.
VERONICA G. AREVALO AND VARONIO D.
HERNANDEZ
DEFENDANTS
: IN THE COURT OF COMMON PLEAS
. CUMBERLAND COUNTY, PENNSYLV?IIA
-oX °
r+y CD
: DOCKET No. 11-8316 -C?-' `?' `?'
CIVIL ACTION-LAW C7
i.
ORDER
AND NOW this*da of ???
Y
2011, upon consideration of the Plaintiff's
Motion to Strike Defendants' November 16, 2011, Petition to Strike Off or Open Judgment by
Confession and Request for Stay of Execution from the Writ of Possession based on Defendants'
non-compliance with the Pennsylvania Rules of Civil Procedure and s ecifically Pa. R.Civ.P
2973.3 Si??M??
4? V t?l ,.0?1 J 'V de, rN . A- -, ?.?-?? .
BY THE T:
J.
Distribution:
,/ Paige Macdonald-Matthes, Esquire, Serratelli, Schiffman, & Brown, P.C. 2080 Linglestown
Road, Suite 201, Harrisburg, PA 17110
,i John M. Ogden, Esquire, Holt & Ogden, LLP, 34 N Queen Street, York, PA 17403
3
1 ? pu`'i"`t ?`o? ( ?Q
N? !p
SHERIFF'S OFFICE OF CUMBERLAND COUNTY
Ronny R Anderson
Sheriff
Jody S Smith
Chief Deputy
?ptS5tlt' ?' ::l??tltlt?,f'?t?
C it
HE PPTTHO19
? E I NOY 28 PH 4: ! 3
Richard W Stewart
Solicitor
°'; MBERLANG, CUUN,r'-i
PEMSYLVANIA
Brandon C. Powers Case Number
vs. 2011-8316
Veronica G. Arevalo (et al.)
SHERIFF'S RETURN OF SERVICE
11/21/2011 11:30 AM - Deputy Tim Black, being duly sworn according to law, served the requested Writ of
Possession by "personally" handing a true and attested copy to a person representing themselves to be
the Defendant, to wit: Veronica G. Arevalo at 700 Valley Road, East Pennsboro Twp, Enola, PA 17025,
Cumberland County, informed Defendant of contents of same and posted Sheriffs Notice on premises.
11/22/2011 Deputy Tim Black, being duly sworn according to law, served the requested Writ of Possession by
handing a true and attested copy to a person representing themselves to be the adult in charge for
Defendant, to wit: Varonio D. Hernandez at 700 Valley Road, East Pennsboro Twp, Enola, PA 17025,
Cumberland County.
11122/2011 By virtue of this writ, Ronny R. Anderson, Sheriff caused the within named Plaintiff to have possession of
the premises described as 700 Valley Road, Enola, PA 17025.
SHERIFF COST: $85.00
November 22, 2011
SO ANSWERS,
RON R ANDERSON, SHERIFF
eel,
.0% «
John M. Ogden, Esquire
HOLT & OGDEN, LLP
34 North Queen Street
York, PA 17403
(717) 846-0550
f (717) 846-0687
ogdenjm@gmail.com
FILED-OFFICE
OF THE PROTHONOTAR {
2011 DEC 27 PM 12: 40
CUMBERLAND COUNTY
PENNSYLVANIA
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
PENNSYLVANIA
BRANDON C. POWERS NO. 11-8316
Plaintiff,
CIVIL ACTION - LAW
V. JUDGE ASSIGNED: GUIDO
RELATED CASE: 09-6533
VERONICA G. AREVALO and
VARANIO D. HERNDANDEZ,
Defendants.
PRAECIPE TO WITHDRAW REQUEST FOR STAY OF EXECUTION
FROM THE WRIT OF POSSESSION FILED NOVEMBER 16, 2011
Filed By: John M. Ogden, Esquire, for the Defendants
ATTORNEY FOR PLAINTIFF:
Paige Macdonald-Mathes, Esquire
Serratelli, Schiffman & Brown, Pc
2080 Lingelstown Road
Harrisburg, Pa 17110
(717) 540-9170
F (717) 540-5481
FOR THE DEFENDANTS:
John M. Ogden, Esquire
Holt & Ogden, LLP
34 North Queen Street
York, PA 17403
(717) 846-0550
f (717) 846-0687
s
Respectfully Submitted,
DATED: 12- HOLT & OGDEN, LLP
-2-0
BY:
John M. Ogden, Esquire
John M. Ogden, Esquire
HOLT & OGDEN, LLP
34 North Queen Street
York, PA 17403
(717) 846-0550
f (717) 846-0687
o_gdenjm@gmail.com
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
PENNSYLVANIA
BRANDON C. POWERS
Plaintiff,
NO. 11-8316
CIVIL ACTION - LAW
V. JUDGE ASSIGNED: GUIDO
VERONICA G. AREVALO and RELATED CASE: 09-6533
VARANIO D. HERNDANDEZ,
Defendants.
PRAECIPE TO WITHDRAW REQUEST FOR STAY OF EXECUTION
FROM THE WRIT OF POSSESSION FILED NOVEMBER 16, 2011
TO THE PROTHONOTARY:
Please withdraw the Petition for Request for Stay of Execution from the
Writ of Possession Filed November 16, 2011 as the Defendants have been
evicted from the property on December 13, 2011 by the Landlord, but not the
Petition to Strike off or Open Judgment by Confession.
44
John M. Ogden, Esquire
HOLT & OGDEN, LLP
34 North Queen Street
York, PA 17403
(717) 846-0550
f (717) 846-0687
ogdenjm@gmail. com
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
PENNSYLVANIA
BRANDON C. POWERS
Plaintiff,
NO. 11-8316
CIVIL ACTION - LAW
V. JUDGE ASSIGNED: GUIDO
RELATED CASE: 09-6533
VERONICA G. AREVALO and
VARANIO D. HERNDANDEZ,
Defendants.
CERTIFICATION OF SERVICE
I am the attorney for the above captioned party in this action, and hereby
certify that on this date, I served a true and correct copy of the Praecipe to
Withdraw Request for Stay of Execution from the Writ of Possession Filed
November 16, 2011, on the date indicated below, through the U.S. Postal
Service, postage paid, to the following address:
PAIGE MACDONALD-MATTHES
SERRATELLI, SCHIFFMAN & BROWN, PC
2080 LINGELSTOWN ROAD
HARRISBURG, PA 17110
Re ectfully Submitted,
HO T & OGDEN, LLP
DATE:
. Ogden, Esquire