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HomeMy WebLinkAbout12-0153SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor ?ga?etitit' a1 4utnf?rr(?? i1 12 FEBI - I All 8: t4 3 CUMBERLAND COUNTY PENNSYLVANIA Camp Hill Realty Associates, LP vs. Excel Homes Group, LLC Case Number 2012-153 SHERIFF'S RETURN OF SERVICE 01120/2012 01:59 PM - Shawn Gutshall, Deputy Sheriff, who being duly sworn according to law, states that on January 20, 2012 at 1359 hours, he served a true copy of the within Confession of Judgment, Complaint for Confession of Judgment for Possession of Real Property and Rule 2974.2 Notice, upon the within named defendant, to wit: Excel Homes Group, LLC, by making known unto Lynn Craker, Accounts Payable Associate for Excel Homes Group, LLC at 300 Corporate Center Drive, Suite 602, Camp Hill, Cumberland County, Pennsylvania 17011 its contents and at the same time handing to her personally the said true and correct copy of the same. ,SAAUMUTSHALL, DEPUTY SHERIFF COST: $43.00 January 24, 2012 SO ANSWERS, 112, RON R ANDERSON, SHERIFF r? . r THE E PR b F+ V 7'F o ~i A R `rf 2012 FEB 17 PM 2: 33 CUMBERLAND COUNTY PENNSYLVANIA Kimberly M. Colonna, PA #80362 McNees Wallace & Nurick LLC 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 Tel. 717-232-8000 Fax. 717-237-5300 kcolonna@mwn.com CAMP HILL REALTY ASSOCIATES LP Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY V. EXCEL HOMES GROUP, LLC NO. 12-153 Civil Term Defendant. PETITION TO STRIKE OFF CONFESSED JUDGMENT, OR, ALTERNATIVELY, TO OPEN CONFESSED JUDGMENT IN EJECTMENT Defendant/Petitioner Excel Homes Group, LLC ("Excel"), by and through its attorneys, McNees Wallace & Nurick LLC, files this Petition to Strike Off Confessed Judgment, or, Alternatively, to Open Confessed Judgment in Ejectment, and, in support, states: 1. Plaintiff/Respondent Camp Hill Realty Associates LP ("CHRA") filed its Complaint for Confession of Judgment for Possession of Real Property, Affidavit of Non- Military Service, Notice of Entry of Judgment Pursuant to PA R.C.P. 236, Certificate of Address, Confession of Judgment, and form of Entry of Judgment on January 13, 2012. ?p .4 2. The Prothonotary entered judgment for possession in favor of CHRA and against Excel by Entry of Judgment dated January 13, 2012. 3. Service of the January 13, 2012 pleadings and the Entry of Judgment was effectuated upon Excel on January 20, 2012. 4. Accordingly, this Petition is timely made under Pa. R.C.P. No. 2959(a)(3). Petition to Strike Confessed Judgment 5. The pleadings filed by CHRA are procedurally deficient and the Entry of Judgment should be stricken. 6. Pennsylvania requires "strict adherence to the rules governing the use of confessed judgments." See, e.g., Hazer v. Zabala, 26 A.3d 1166, 1169 (Pa.Super. 2011). The rules providing for confession of judgment are to be strictly construed against the drafting party. Id. Absent strict compliance, a confession of judgment cannot stand. Id. Likewise, the confession provision itself will be construed strictly against the party to be benefitted by it. Id. at 1171. 7. The confession of judgment provision mandates that "[i]n any action to confess judgment in ejectment or for rent in arrears, Landlord shall first cause to be filed in such action an affidavit made by it or someone acting for it setting forth the facts necessary to authorize the entry of judgment, of which facts such affidavit shall be conclusive evidence..." Complaint, Ex. A, p. 38. 8. In violation of the express terms of the Lease Agreement, CHRA failed to file any affidavit to support its claim to relief and, thus, is not entitled to a Confessed Judgment under the express terms thereof. 2 9. Additionally, from the face of the Lease Agreement itself, it is not apparent that the parties agreed upon the Confession of Judgment provision being sued upon. 10. A warrant of attorney to confess judgment must be self-sustaining and to be self- sustaining the warrant must be in writing and signed by the person to be bound by it. Hazer, 26 A.3d at 1171. The requisite signature must bear a direct relation to the warrant of attorney and may not be implied. Id. 11. The warrant in the Lease Agreement upon which Plaintiff has confessed judgment is not self-sustaining. 12. Specifically, the provision sued upon is located on pages 37 and 38 of the 51 page (including attachments) Lease Agreement, under the confusing and misleading subheading of "Additional Remedies". 13. The Confession of Judgment provision contains a paragraph and line for the tenant to indicate that it has voluntarily, knowingly, and intelligently waived due process rights by agreeing to the confession of judgment provision. Complaint, Ex. A, p. 38. 14. Notably, Excel did not sign or initial that paragraph and there is no indication anywhere else in the document that Excel voluntarily, knowingly, and intelligently agreed to the confessed judgment provisions. Complaint, Ex. A, p, 38. 15. Because it appears the parties to the Lease Agreement contemplated specific agreement to and acknowledgement of the confession of judgment provision, and such agreement and acknowledgement is conspicuously and noticeably absent, and because such provisions are strictly construed against CHRA as the benefitting party, the burden is on CHRA to specifically prove that this provision was agreed upon. 3 16. CHRA's Complaint fails to do this. 17. Accordingly, the judgment should be stricken. Petition to Open Confessed Judgment in Ejectment 18. Alternatively, even if this Court determines that the Entry of Judgment should not be stricken as argued above, Excel moves this Court to Open the Judgment as Excel has a meritorious defense and there is sufficient evidence to require the submission of the issues to a factfinder. 19. To open a confession of judgment, a petitioner must act promptly, offer a meritorious defense, and present sufficient evidence to require the submission of the issues to a jury. See, e.g. Lazzarotti v. Juliano, 469 A.2d 216, 218 (Pa.Super. 1983). If evidence is produced which in a jury trial would require the issues to be submitted to the jury, the Court shall open the judgment. Pa. R. Civ. P. 2959(e). 20. The Lease Agreement was effective as of May 1, 2010 and, by its terms, governed the parties' relationship through 11:59pm, March 31, 2011. Complaint, Ex. A, p. 1. 21. In February, 2011, CHRA, by and through its agent, Carrow Real Estate Services, agreed to an oral, month-to-month lease of the premises upon the expiration of the written Lease Agreement and until CHRA and Excel could agree upon a new written lease agreement for separate space. 22. Accordingly, the Lease Agreement, and its confession of judgment provision, expired on March 31, 2011. 23. Thereafter, the parties have been operating under the oral month-to-month lease and no other agreement between the parties has been reduced to writing. 4 24. As such, Defendant requests that this Court issue a rule upon the Plaintiff/Respondent to show cause why the petitioner is not entitled to the opening of the Confessed Judgment and, in such Order, require: (1) Plaintiff/Respondent to file an answer to the petition within 30 days; (2) depositions regarding the factual issues to be tried to be completed within 90 days; and (3) a hearing on the merits to be held no earlier than 15 days from the completion of depositions. 25. Because this Petition states prima facie grounds for relief, Defendant further requests that the Court stay all ejectment proceedings until the Court rules on this Petition in accordance with Pa. R. Civ. P. 2959(b). 26. Defendant has paid Plaintiff its rent due under the oral month-to-month agreement between the parties through February 29, 2012. During the pendency of this action, Defendant will continue to make its scheduled monthly rental payments to CHRA. WHEREFORE, Excel Homes Group, LLC respectfully requests that the Court strike or open the Confessed Judgment that was entered against it. McNEES WALLACE & NURICK LLC - # By . Kimberly . Colonna, PA #80362 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 Tel. 717-232-8000 Fax. 717-237-5300 kcolonna?i,)mwn.com Attorneys for Defendant, Excel Homes Group, LLC Dated: February 17, 2012 r VERIFICATION Subject to the penalties of 18 Pa. C.S. § 4904, I, Brent Werner, certify that I am authorized to make this verification on behalf of Excel Homes Group, LLC and that the facts set in the foregoing Petition to Strike Off Confessed Judgment, or, Alternatively, To Open Confessed Judgment In Ejectment are true and correct to the best of my knowledge, information, and belief. Excel Homes Group, LLC By:C.- Brent Werner, CFO Date: eSr K? ry 17 1012- i CERTIFICATE OF SERVICE I, Kimberly M. Colonna do hereby certify that a true and correct copy of the foregoing Petition to Strike Off Judgment, or, Alternatively, to Open Confessed Judgment was served upon the following person by first class mail, postage prepaid, on February 17, 2012. Ronald L. Finck, Esq. METTE, EVANS & WOODSIDE P.O. Box 5950 Harrisburg, PA 17110-0950 Attorneys for Plaintiff Kimberly . Colonna 1 r CAMP HILL REALTY ASSOCIATES, LP, Plaintiff V. EXCEL HOMES GROUP, LLC, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 12-153 CIVIL TERM IN RE: DEFENDANT'S PETITION TO STRIKE OFF CONFESSED JUDGMENT OR, ALTERNATIVELY, TO OPEN CONFESSED JUDGMENT IN EJECTMENT ORDER OF COURT ORDER OF COURT AND NOW, this 27`h day of February, 2010, upon consideration of the above Petition, it is ordered that: 1. A rule is issued upon Plaintiff to show cause why Defendant is not entitled to the relief requested. 2. Plaintiff shall file an answer to the motion within 21 days of the date of this order; 3. The petition shall be decided under Pa. R.C.P. 206.7; 4. Notice of the entry of this order shall be provided to all parties by Defendant. 5. Pursuant to Pa. R. Civ. P. 2959(b), because the petition states prima facie grounds for relief, all ejectment proceedings are hereby stayed until the Court rules on the Petition. BY THE COURT, c rim r -71 =M x::10 ` '; -a CIO ?`- PO m x CD r Christyl6e L. Peck, J. ?` Ronald L. Finck, Esq. P.O. Box 5950 Harrisburg, PA 17110-0950 Attorney for Plaintiff Kimberly A Colonna, Esq. 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Attorney for Defendant :rc©?;5 1Ma . Iecd??2711 .L ,v i Ronald L. Finck, Esquire Pa. Sup. Ct. I.D. No. 89985 METTE, EVANS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Phone: (717) 232-5000 Fax: (717) 236-1816 rlfinckgmette.com CAMP HILL REALTY ASSOCIATES, LP Plaintiff V. EXCEL HOMES GROUP, LLC Defendant = M sA ? " r U' CD r ?r 7: ?. CD r? 57> - IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 12-153 Civil Term PLAINTIFF'S ANSWER TO PETITION TO STRIKE OFF CONFESSED JUDGMENT, OR, ALTERNATIVELY, TO OPEN CONFESSED JUDGMENT IN EJECTMENT The Plaintiff/Respondent, CAMP HILL REALTY ASSOCIATES, LP ("CHRA"), by and through its attorneys, METTE, EVANS & WOODSIDE, files this Answer to Petition to Strike Off Confessed Judgment, or, Alternatively, to Open Confessed Judgment in Ejectment, as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. The averments of paragraph 4 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. ANSWER TO PETITION TO STRIKE CONFESSED JUDGMENT 5. The averments of paragraph 5 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 6. The averments of paragraph 6 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 7. Denied. The Confession of Judgment provision is an instrument in writing which as such speaks for itself. To the extent Excel mischaracterizes, misinterprets, misquotes, misrepresents, elaborates upon, or removes the contents of the writing from their context, said averments are denied and strict proof thereof is demanded. 8. Denied. The averments of paragraph 8 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, it is specifically denied that CHRA failed to file a required affidavit to support its claim. To the contrary, the verified Complaint constitutes an affidavit under Pennsylvania law. 9. Denied. The Lease Agreement is an instrument in writing which as such speaks for itself. To the extent Excel mischaracterizes, misinterprets, misquotes, misrepresents, elaborates upon, or removes the contents of the writing from their context, said averments are denied and strict proof thereof is demanded. By way of further answer, Excel's assent to the confession of judgment provision is evidenced by the appearance of Excel's signature at the end of the Lease Agreement. 10. Denied. The averments of paragraph 10 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent a 2 response is deemed required, it is specifically denied that Excel's signature does not bear a direct relation to the warrant of attorney. Strict proof thereof is demanded. 11. Denied. The averments of paragraph 11 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, it is specifically denied that the warrant in the Lease Agreement is not self sustaining. Strict proof thereof is demanded. 12. Denied. The averments of paragraph 12 reference an instrument in writing which as such speaks for itself. To the extent Excel mischaracterizes, misinterprets, misquotes, misrepresents, elaborates upon, or removes the contents of the writing from their context, said averments are denied and strict proof thereof is demanded. By way of further answer, it is specifically denied that the Lease Agreement is in any way confusing or misleading. Strict proof thereof is demanded. 13. Denied. The averments of paragraph 13 reference an instrument in writing which as such speaks for itself. To the extent Excel mischaracterizes, misinterprets, misquotes, misrepresents, elaborates upon, or removes the contents of the writing from their context, said averments are denied and strict proof thereof is demanded, if deemed relevant. 14. Admitted in part; denied in part. It is admitted only that Excel did not sign or initial the referenced paragraph. The remaining averments of paragraph 14 reference an instrument in writing which as such speaks for itself. To the extent Excel mischaracterizes, misinterprets, misquotes, misrepresents, elaborates upon, or removes the contents of the writing from their context, said averments are denied and strict proof thereof is demanded. By way of further answer, it is specifically denied that Excel did not voluntarily, knowingly, and intentionally agree to the confessed judgment provision. 3 15. Denied. The averments of paragraph 15 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, it is specifically denied that Excel did not agree to the confession of judgment provision. To the contrary, Excel signed the Lease Agreement containing the confession of judgment provision. Strict proof to the contrary is demanded, if deemed relevant. 16. The averments of paragraph 16 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 17. The averments of paragraph 17 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. ANSWER TO PETITION TO OPEN CONFESSED JUDGMENT IN EJECTMENT 18. Denied. The averments of paragraph 18 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, it is specifically denied that Excel has a meritorious defense to CHRA's claims. To the contrary, Excel's Petition to Open Confessed Judgment fails to identify a meritorious defense. By way of further answer, it is insufficient under Pennsylvania law to state that a party has a meritorious defense. The party must allege facts to support the conclusion that it has a meritorious defense. 19. The averments of paragraph 19 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 20. Denied. The averments of paragraph 20 reference an instrument in writing which as such speaks for itself. To the extent Excel mischaracterizes, misinterprets, misquotes, misrepresents, elaborates upon, or removes the contents of the writing from their context, said averments are denied and strict proof thereof is demanded. 4 21. Denied. The averments of paragraph 21 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. By way of further answer, a party alleging the existence of an oral agreement must specifically identify when the agreement was reached and the specific individuals involved in striking the oral deal. See Pratter v. Penn Treaty American Corp., 11 A.3d 550, 562 (Pa. Commw. 2010) By way of further answer, even if a month-to-month holdover was agreed to by CHRA, it is specifically denied that CHRA waived its right to confess judgment against the Defendant, or that any purported waiver was supported by adequate consideration. Finally, to the extent the Court finds a novation of the parties' Lease Agreement such that a month-to-month tenancy is established, Plaintiffs terminated the month-to-month tenancy prior to initiation of this action. Accordingly, Excel has no right to continued possession. 22. The averments of paragraph 22 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 23. Denied. CHRA incorporates its response to paragraph 21 above herein as if fully set forth. 24. The averments of paragraph 24 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, it is specifically denied that Excel is entitled to the relief it seeks in this Petition. By way of further answer, Excel has failed to identify any factual issues requiring depositions or a hearing on the merits. To the contrary, Excel's petition is a thinly veiled attempt to buy time until alternative space becomes available. In the meantime, the Premises has been re-let to another tenant and CHRA is incurring monetary damages for each day that Excel continues its occupancy. 25. Denied. The averments of 25 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 26. Admitted in part; denied in part. It is admitted only that Excel has made partial rental payments to CHRA. The averments of paragraph 21 above are incorporated herein by reference as if fully set forth. WHEREFORE, Plaintiff, Camp Hill Realty Associates, LP, respectfully requests that this Court deny the Petitioner's Petition, together with such other relief as this Court deems just and appropriate under the circumstances. Respectfully submitted, METTE, EVANS & WOODSIDE By: 6an&" ,--/ o _ ?.v, ? Ronald L. Finck, Esquire Sup. Ct. I.D. No. 89985 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone Attorneys for Plaintiff/Respondent, Camp Hill Realty Associates, LP Date: March 2, 2012 6 VERIFICATION I, Jacob Weinreb, am an authorized agent of Camp Hill Realty Associates, LP and am authorized to make this verification. I have read the foregoing document and verify that the facts set forth therein are true and correct to the best of my knowledge, information and belief. To the extent that the foregoing document and/or its language is that of counsel, I have relied upon counsel in making this Verification. understand that any false statements alsification i C. S. §4904 relating to un 7fz,-- DATED: CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, with first-class postage, prepaid, addressed as follows: Kimberly M. Colonna, Esquire McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Attorney for Defendant/Petitioner METTE, EVANS & WOODSIDE _ _?.w•iL, By: R""'g'c Ronald L. Finck Sup. Ct. I.D. No. PA 89985 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Facsimile rlfinckCaD_mette.com Date: March 2, 2012 Attorneys for Plaintiff/Respondent 552049v1 CAMP HILL REALTY ASSOCIATES IN THE COURT OF COMMON PLEAS LP CUMBERLAND COUNTY Plaintiff, -a P-1 V. ? " ., NO. 12-153 Civil Term cnr -- ca ..cam EXCEL HOMES GROUP, LLC cn _.;?r , ! Defendant. r•, '_ r ORDER GRANTING PRO HAC VICE ADMISSION AND NOW, this/4/&. day of 2012, upon consideration of the Motion for Pro Hac Vice Admission of W. Todd Woelfer and Trevor O. Gasper, it is HEREBY ORDERED that the Motion is GRANTED. The Prothonotary shall serve a copy of this Order upon all counsel of record and unrepresented parties in accordance with Pa. R. Civ. P. 236 and C.C.R.P. 208.3. BY THE COURT: ?J J. Distribution: ? Ronald L. Finck, Esq., METTE, EVANS & WOODSIDE, P.O. Box 5950, Harrisburg, PA 17110-0950 ? Kimberly M. Colonna, Esq., McNEES WALLACE & NURICK LLC, 100 Pine St., P.O. Box 1166, Harrisburg, PA 17108-1166 &p?es rna.led CAMP HILL REALTY ASSOCIATES, LP Plaintiff V. EXCEL HOMES GROUP, LLC Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 12-153 Civil Term ORDER AND NOW this /,,&, day of1?/? , 2012, a status conference is scheduled for ML`rl), 2012 in Courtroom _ of the Cumberland County Courthouse for purposes of establishing a case-management order, C?// /?? r?) . J. Distribute to: .? Ronald L. Finck, Esquire Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 i/ Kimberly M. Colonna, Esquire McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 eo p e ee, C- r-0 ca m Z ::,D ?C7 °C7 j- ; L Cz E I ?x 5527390 CAMP HILL REALTY ASSOCIATES, IN THE COURT OF COMMON PLEAS OF LP, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. CIVIL ACTION - LAW EXCEL HOMES GROUP, LLC, Defendant No. 12-153 CIVIL TERM IN RE: STATUS CONFERENCE ORDER OF COURT AND NOW, this 16th day of April, 2012, after a status conference, and the parties indicating that they need some time for discovery and agreeing to set the hearing at this time, it is hereby ordered that the parties will have 45 days from today's date in which to complete discovery. A hearing on the petition of the Defendant shall be held on June 21, 2012, at 9:30 a.m. By the Court, i/, AJ6 - Christyl e L. Peck, J. Ronald L. Finck, Esquire Mette, Evans & Woodside C-) ? (7, 3401 N. Front Street mfg Mo. P.O. Box 5950 zso Harrisburg, PA 17110-0950 For the Plaintiff r?-Z w Cox V Kimberly M. McNees, Wallace o&Nuriick,z1LLC 3 ° n 100 Pine Street 3>C N P.O. Box 1166 Harrisburg, PA 17108-1166 - -n For the Defendant pcb 00p1eS "Jed Lll,-)311,;? eov, ? eft r' iCL. 0J ll it Iii E1`t' 116 PN 2:: C_ ?t RLAi" D COUNIT`le "lib`;! NSY1.4'ANI A Ronald L. Finck, Esquire Pa. Sup. Ct. I.D. No. 89985 METTE, EVANS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Phone: (717) 232-5000 Fax: (717) 236-1816 rlfmck(a,mette.com CAMP HILL REALTY ASSOCIATES, LP Plaintiff V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 12-153 Civil Term EXCEL HOMES GROUP, LLC Defendant PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Please mark the above-captioned action as discontinued and ended. Respectfully submitted, METTE, EVANS & WOODSIDE By: ?Q? '. _ ?i?.??? Ronald L. Finck, Esquire Sup. Ct. I.D. No. 89985 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone Attorneys for Plaintiff Date: March 15, 2012 CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, with first-class postage, prepaid, addressed as follows: Kimberly M. Colonna, Esquire McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Attorney for Defendant METTE, EVANS & WOODSIDE By: ReK'X-(_ Ronald L. Finck Sup. Ct. I.D. No. PA 89985 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Facsimile rifinck(&-mette.com Attorneys for Plaintiff Date: March 15, 2012 572098v1