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HomeMy WebLinkAbout05-182704104/2005 13:33 7172431850 M UM $ 245,288.59 MDWO PROMISSORY NOTE yA Q<-c"gj PAGE 03110 Dated: March 25, 2005 Cumberland County, Pennsylvania PROMISE TO PAY: FOR VALUE RECEIVED, CALABRESE & SONS, INC., a Pennsylvania corporation with a business address ofP.O. BOX 1667 406 Brandy Lane Mechanicsburg, PA 17055 ("Maker") promises to payto SOREL FORGE CO., a Canadian corporation vtng its principal place 10 of business at 100 McCarthy St. Joseph deSorel, Quebec, Canada J3R 3MB, "Holder") or to the order thereof, in lawful money ofthe United States ofAmerica, the principal amount ofTwo HandredForty Five Thousand, Two Hundred EightyEight Dollars and FiftyNine Cents ($245,288.59), togetherwith interest on the unpaid principal balance from the date of this Instrument until paid in full. PAYMENT: Maker will pay this loan in accordance with the following payment schedule: Payment upon demand. Maker will pay Holder at Holder's address shown above or at such other place as Holder may designateinwriting. Unless otherwise agreed orrequiredbyapplicablelaw, paymentswillbeapplied first to accrued unpaid interest, then to principal, and any remaining amount to any unpaid costs and late charges, PREPAYMENT: Maker may pay, without penalty, all or a portion of the amount owed earlier than it is due. Early payments will not, unless agreed to by Holder in writing, relieve Maker of Maker's obligation to continue to make payments under the above payment schedule, Rather, they will reduce the principal balance due and may result in Maker making fewer payments. DEFAULT: Maker will be in default if any of the following occurs: (a) Maker fails to make any payment when due; (b) Maker breaks any promise Maker has made to Holder, or Maker fails to perform promptly at the time and strictly in the manner provided in this Note, or any agreement related to this Note; (c) Maker defaults under any loan, extension of credit, security agreement, purchase or sales agreement, or snyother agreement, in favor of any other creditor orperson that may materially affcet any of the Maker's property or Maker's ability to repay this Note or perform Maker's obligations under this Note or any related agreement; (d) any representation or statement made or famished to Holder by Maker or on Maker's behalfis false or misleading in any material respect; (e) Maker becomes insolvent, a receiver is appointed for any part of Maker's property, Maker makes an assignment for the benefit of creditors, or any proceeding is commenced either by Maker or against Maker under any bankruptcy or insolvency laws; (f) any creditor tries to take any of Maker's property on which the Holder has a lien or security interest; (g) any of the events described in this default section occurs with respect to any guarantor of this Note; (h) Holder, in good faith, deems Holder insecure, 04/04/2005 13:33 7172431850 MDWO PAGE 04110 CONFESSION OF JUDGMENT: The Maker hereby irrevocably authorizes and cm powers any prothonotary, clerk or attorney of any court ofrecord within the United States or elsewhere to appear for the Maker and, with or without declaration, to confess judgment at any time or times against each, any or all of the Maker(s) and in favor of the Holder hereof for the above sum plus interest thereon from the date hereof, and for so doing, this Note or a copy of this note, verified by affidavit shall be sufficient warrant. The Maker hereby releases all errors and expressly waives all rights to any stay of execution, sequestration of rents and exemption of any property from levy and sale of execution under any law or rule of court now in force or hereafter enacted. All of the foregoing promises are the joint and several promises of the Maker and shall bind the Maker, its successors and assigns. The Maker and all endorser waive protest, demand and notice of nonpayment of this Note. The authority granted in this Note to confess judgment against Maker shall not be exhausted by any exercise of that authority, but shall continue from. time to time and at all times until payment in full of all amounts due under this Note, HOLD)ER'SRIGHTS: Upon default Holder may declare the entire unpaidprincipalbalance on this Note and all accrued unpaid interest immediately due, without notice, and then Maker will pay that amount, Holder may hire or pay someone else to help collect this Note if Maker does not pay. Maker will also pay Holder that amount. This includes, subj ect to any applicable law, holder's attomey's fees and legal and court expenses whether or not there is a lawsuit, including attorney's fees and. Holder's legal expenses forbankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), appeals, and any other post judgment collection costs and services. Maker willalso pay any court costs, in addition to all other sums provided by law. If judgment is entered in connection with this Note, interest will continue to accrue on this note after judgment at the rate applicable to this Note at the time judgment is entered. The remedies provided to the Holder in this document in the event of a default or a breach of the conditions herein, shall not be construed to be exclusive of any other remedy available to the Bolder and the Holder may exercise any remedy available to Holder. Additionally, the exercise of any one remedy shall not be considered a waiver of all those other remedies available to the Holder. GENERAL PROVISIONS: The interpretation and construction of this Note along with the rights and remedies available to the parties hereto shall be governed by the laws of the Commonwealth of Pennsylvania. If any provision of this agreement shall be held invalid or unenforceable, such shall not affect any other provision of the Note. This Note represents the entire agreement between the Maker and Holder. No waiver or modification of the terms of this note shall be valid unless in writing, signed by the Maker and Holder 04/04/2065 13:33 7172431850 MDWO PAGE 05/10 PRIOR TO SIGNING THIS NOTE, MAKER ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED BY LEGAL COUNSEL IN CONNECTION WITH THE EXECUTION AND DELIVERY OF THIS NOTE, THAT IT HAS READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE, INCLUDING THE CONFESSION OF JUDGMENT PROVISION. MAKER AGREES TO THE TERMS OF THE NOTE AND ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS NOTE. WHEREOF, Maker has caused this Note to be executed under seal this?l } ' day of T7178 ATTEST: CALABRESE & SONS, INC. ?00 N ? N S S' 04/04/2005 13:33 7172431850 MDWO Mar 24 05 12:13p CRLRBRESE & SONS EX141151T "A" PAGE 09/10 717GS78EDS p.s IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SOREL FORGE CO., Plaintiff No, 05-1827 - civil V. CALA13RESE & SONS, INC„ Defendant Civil Action - Law ASSIGNMENT OF JUDGMENT FOR VALUE RECEIVED, Plaintiff, Sorel Forge Co„ hereby assigns, transfers and sets over to Hanover Associates. a Pennsylvania limited partnership. all of Plaintiffs right, tide and interest In and to the judgment entered against Defendant, Calabrese & Sons, Inc., in the captioned action. April 11 .2006 FIRM NAY6 ME, SaRanu RCS. Cu. 4 BY 8, 11EAce MARC ? Address: lot, ker McCR Sf-010SF t H ll> 5'o Attorneys for Sorel Forge Co, G)tK6_C , t NnJAI A 0a -3MB _4. -D x 1 ?' HANOVER ASSOCIATES : IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, :PENNSYLVANIA V. : No. 2005-01827 CALABRESE & SONS, INC., Defendant TO THE PROTHONOTARY: PRAECIPE Please withdraw my appearance from the above captioned matter. MARTSON, DEARDORFF, WILLIAMS & OTTO By. David A. Fitzsimons 10 East High Street Carlisle, PA 17013 (717) 243-3341 Certificate of Service AND NOW, this ? day of 006, I hereby verify that I have caused a true and correct copy of the foregoing Praeed in t he U.S. Mail, first class, postage prepaid: Robert E. Chernicoff P.O. Box 60457 Harrisburg, PA 17106-0457 Monica D. Zercher Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011 (717) 763-1383 K7 -?i Cy ?r .. a -. ? i-'. ?Vl i" r f_..'J fti i i-r T CSl ? f_'_. 'SJ U_I ?T, ! F'? f : ?,? \ yL f't r -.1 -G HANOVER ASSOCIATES V. IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, PENNSYLVANIA CALABRESE & SONS, INC., Defendant TO THE PROTHONOTARY: No. 2005-01827 PRAECIPE Please enter my appearance in the above captioned matter. CUNNINGHAM & Robert 1) No. Sup. Ct. ID No. P.O. Box 60457 Harrisburg, PA 17106-0457 (717) 238-6570 , P.C. Certificate of Service AND NOW, this ?k day of 2006, I hereby verify that I have caused a true and correct copy of the foregoing Praecipe to be hand-delivered to: David A. Fitzsimons, Esquire 10 East High Street Carlisle, PA 17013 -1E Monica D. Zerc er Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011 (717) 763-1383 C3 C cr o -Ti Jrn CO $ P a. . J:\wpwin\Cbmts\RSR Misc\Calabrese.JUDGMENT RELEASE.$245,288.59.doc HANOVER ASSOCIATES, V. Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA : NO. 2005-01827 CALABRESE & SONS, INC., Defendant : $245,288.59 : JUDGMENT IN FAVOR OF PLAINTIFF JUDGMENT RELEASE WHEREAS, Plaintiff entered a judgment against Defendant on April 7, 2005, to the docket number as referenced above; and WHEREAS, the Defendant is the owner of a certain parcel of land located in Mechanicsburg Boro and Hampden Township, Cumberland County, Pennsylvania more commonly known as 406 Brandy Lane; and WHEREAS, on April 2, 2006 Defendant filed a Preliminary/Final Subdivision Lot Consolidation Plan to Cumberland County Plan Book 92 Page 44 subdividing what was commonly known as 406 Brandy Lane into two separate lots shown on said Plan as New Lot 1 and New Lot 2; and WHEREAS, in consideration of the Defendant partially satisfying the above-referenced judgment, Plaintiff has agreed to release the New Lot 2, as more fully described on Exhibit A attached hereto, from the lien and operation of the above-referenced judgment. NOW THEREFORE, HANOVER ASSOCIATES, Plaintiff in the above Judgment, does appear and acknowledge that she has this day received from CALABRESE & SONS, INC., the Defendant in the above Judgment, PARTIAL payment and satisfaction of the same, with interest and costs, and desires that this Judgment Release be entered upon the records thereof only as it effects the New Lot 2. New Lot 2 is hereby released from the lien, operation and effect of the said judgment. This Judgment shall, until satisfied of record, remain in full force and effect against the New Lot 1. And further, it does hereby authorize and empower the Prothonotary of said Court to appear for it and in its name and stead to enter the Judgment Release upon the record of said Judgment, as fully and effectually, to all intents and purposes as it could, were it present to do so. And for so doing this shall be your sufficient warrant of authority. IN WITNESS WHEREOF, the Plaintiff has caused these presents to be signed this day of June, 2006. ATTEST: HANOVER ASSOCIATES By: Its: CUNNINGHAM & CHERNICOFF. P, Robert E. Chemi a /,L Sup. Ct. ID No No.. No.. P.O. Box 60457 Harrisburg, PA 17106-0457 (717) 238-6570 ° J:\wpWieClimts\RSRMisclCalabrese.JUDGMENTRELEASE.$245,288.59.doc COMMONWEALTH OF PENNSYLVANIA ) SS. COUNTY OF ctcc?Il c n ) On this, the r7 n' day of Jc " 2006, before me, a Notary Public, the undersigned officer, personally appeared Y,?, ? w , known to me (or satisfactorily proven) to be the person whose name is subscribed as agent for HANOVER ASSOCIATES, and acknowledged that he/she executed the same as the act of his/her principal for the purpose therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. Public NOTARIAL SEAL JUUEANNE AMETRANO, Notary Public City of Harrisburg, PA Dauphin County My Commission Expires Feb. 22, 2007 EXHIBIT A ALL THAT CERTAIN piece or parcel of land, situate, lying and being in Mechanicsburg Borough, Cumberland County shown as New Lot 2 on the Calabrese & Sons, Inc. Preliminary/Final Subdivision/Lot Consolidation Plan Recorded April 3, 2006 in the Cumberland County Recorder of Deeds Office in Plan Book 92 Page 44 to wit: BEGINNING at a point on the southern side of Brandy Lane at a 5/8 inch rebar with cap thence South 27 degrees 04 minutes 00 seconds East a distance of 376.89 feet to a point thence North 37 degrees 14 minutes 52 seconds East a distance of 509.19 feet to a point thence North 37 degrees 05 minutes 01 seconds East a distance of 66.58 feet to a point thence South 42 degrees 05 minutes 07 seconds East a distance of 179.93 feet to a point thence South 24 degrees 27 minutes 41 seconds East a distance of 490.52 feet to a point thence South 65 degrees 27 minutes 00 seconds West a distance of 593.70 feet to a point thence North 27 degrees 04 minutes 00 seconds West a distance of 744.09 feet to a point thence North 40 degrees 20 minutes 30 seconds East a distance of 54.16 feet to a point and place of BEGINNING. CONTAINING 7.628 acres more or less. Certificate of Service AND NOW, this 5A--day of L?&? 2006, I hereby verify that I have caused a true and correct copy of the foregoing Praecipe to be placed in the U.S. Mail, first class, postage prepaid and addressed as follows: Robert E. Chernicoff, Esquire 2320 North Second Street Harrisburg, PA 17110-1008 and hand-delivered to: David A. Fitzsimons, Esquire 10 East High Street Carlisle, PA 17013 "I' Monica D. ercher Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011 (717) 763-1383 O C 4 N CJ? I j I u+ N G? V 1I? 1 T. .a -` T1 L ?GJ :.c 16 0 SOREL FORGE CO., VS. IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, PENNSYLVANIA CALABRESE & SONS, INC., Defendant No. 1827 CIVIL 2005 CIVIL ACTION -LAW In relation to the above referenced Judgment, for value received, the undersigned, with the legal authority to do so, hereby releases from the lien, effect and operation of the above judgment: ALL THAT CERTAIN tract of land known as Lot No. 1, Brandy Lane, partly in the Township of Hampden and partly in the Borough of Mechanicsburg, County of Cumberland and Commonwealth of Pennsylvania, known as Tax Parcel No. 10-22-0521-015. Provided, however, that nothing herein contained shall affect such Judgment or the lien thereof or its legal validity upon or against any other property of Defendant in Cumberland County, Pennsylvania or elsewhere. This Judgment Release is executed by Hanover Associates, LP by virtue of the same having been assigned to Hanover Associates by the Plaintiff by Assignment dated April 11, 2006 and of record at the above docket number and term and pursuant to an Order ofthe Court of Common Pleas of Cumberland County, Pennsylvania, dated August 28, 2007. Witness my hand and seal this day of 2007. HANOVER ASSOCIATES, LP By: e'6? 'J '2?2 Date: David G. Fisher, General Partner x ALL THAT CERTAIN tract of land with improvements thereon erected situate partly in Hampden Township and partly in the Borough of Mechanicsburg, Cumberland County, Pennsylvania, bounded and described according to the Calabrese & Sons, Inc., Preliminary/Final Subdivision/Lot Consolidation Plan prepared by Penn Teas En&ccring, Inc., dated November 16, 2005, and recorded in Cumberland County, Pennsylvania Plan Book,92, Page 44, as follows: BEGINNING at an iron pin found on the dedicated rigbt-of-way line of Brandy Lane (50' row) at the northwestern comer of land now or formerly of Mary Frances & Floyd E. Weaver, thence along said land of Weaver and land now or formerly of William L, Jr. And Deborah S. Shipman, South 50 degrees 34 urinates 52 seconds East 244.48 feet to an iron pin found; thence along said land of Shipman, an unopened street, and land now or formerly of Stephen F. & Laura E. Sinkonis, North 3 8 degrees 35 minutes 08 seconds East 435.00 feet to an iron pin found; thence along an unopened street, land now or formerly of Roy E. & Carol P. Mason, Bay Street (private), and land now or formerly of Jeffrey T. & Lorraine R. Fleming, North 38 degrees, 40 minutes 48 seconds East 332.11 feet to a %z" pipe found; thence along land now or formerly of the United States of America, South 31 degrees 45 minutes 01 second East 1,080.42 feet to a 1" pipe filled with concrete; thence along same, South 65 degrees 41 minutes 40 seconds West 658.31 feet to an iron pin found; thence along New Lot 2 as set forth on the above-referenced Plan the following three courses and distances: (1) North 24 degrees 27 minutes 41 seconds West 490.52 feet to an iron pin found; (2) North 42 degrees 05 minutes 07 seconds West 179.93 feet to an iron pin found, and (3) South 37 degrees 05 minutes 01 second West 66.58 feet to an iron pin found; thence along land now or formerly of Michael S. Nailor, North 50 degrees 34 minutes 52 seconds West 325.26 feet to an iron pin found; thence along said Brandy Lane, North 38 degrees 53 minutes 34 seconds East 55.03 feet to an iron pin found, the point and place of Beginning. BEING New Lot 1 on the Calabrese & Sons, Inc., Preliminary/Final Subdivisiomut Consolidation Plan containing 14.953 acres. i W O 00 A ' ` - SOREL FORGE CO., : IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. No. 05-1827 - CIVIL CALABRESE & SONS, INC., Defendant CIVIL ACTION - LAW PRAECIPE FOR WITHDRAWAL AND ENTRY OF APgRARANCE ITO THE PROTHONOTARY: Please withdraw my appearance on behalf of Hanover Associates, assignee of the Plaintiff, Sorel Forge Co., in the above-captioned matter. Date: March 4, 2009 obert . C , Esquire M? ( n gham & Chernicoff) 2320 North Second Street Harrisburg, PA 17110 Please enter my appearance on behalf of Hanover Associates, assignee of the Plaintiff, Sorel Forge Co., in the above-captioned action. Date: March 4, 2009 Marlin R.I. cCaleb Attorney I.D. No. 06353 219 East Main Street P.O. Box 230 Mechanicsburg, PA 17055 (717) 691-7770 FAX: (717) 691-7772 Attorney for Hanover Associates LAW OFFICES MARLIN R. McCALEB e . -?%' CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Praecipe for Withdrawal and Entry of Appearance was served upon the Defendant herein, or its attorney, and other counsel herein, on March 31, 2009, by depositing same in the mail at the United States Post Office at Mechanicsburg, Pennsylvania, postage prepaid, properly addressed as follows: Calabrese & Sons, Inc. 406 Brandy Lane Mechanicsburg, PA 17055 David A. Fitzsimons, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 Robert E. Chernicoff, Esquire Cunningham & Chernicoff, P.C. P.O. Box 60457 Harrisburg, PA 17106-0457 Monica D. Zercher Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011 Marlin R. McCaleb Attorney.I.D. No. 06353 219 East Main Street P.O. Box 230 Mechanicsburg, Pennsylvania 17055 (717) 691-7770 FAX: (717) 691-7772 Attorney for Hanover Associates LAW OFFICES MARLIN R. McCALEB -2- MM'rar wh.4.. ALED- w0- Flt.`E OF THE Pf';j i ,y 2009 FEAR 31 AN 10: 3 L SOREL FORGE CO., Plaintiff V. CALABRESE & SONS, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 05-1827 - CIVIL CIVIL ACTION - LAW NOTICE UNDER Pa R C P. No 2958.1 OF JLfiDGNENT AND EXECUTION THEREON Notice of Defendant's Rights TO: CALABRESE & SONS, INC. (Defendant) 406 Brandy Lane Mechanicsburg, PA 17055 A judgment in the amount of $245,288.59 has been entered against you and in favor of the Plaintiff without any prior notice or hearing based on a confession of judgment contained in a written agreement or other paper allegedly signed by you. That judgment was assigned by the Plaintiff to Hanover Associates, assignee herein, on April 11, 2005. The sheriff may take your money or other property to pay the judgment at any time after 30 days after the date on which this Notice is served on you. You may have legal rights to defeat the judgment or to prevent your money or property from being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN 30 DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH LAW OFFICES BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT MARLIN R. McCALEB HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE: Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 Respectfully_submitted, Marlin R' McCaleb Attorney I.D. No. 06353 219 East Main Street P.O. Box 230 Mechanicsburg, PA 17055 (717) 691-7770 FAX: (717) 691-7772 Attorney for Hanover Associates, Assignee herein LAW OFFICES MARLIN R. McCALEB -2- CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Notice Under Pa.R.C.P. No. 2958.1 of Judgment and Execution Thereon was served upon the following counsel on March 31, 2009, by depositing same in the mail at the United States Post Office at Mechanicsburg, Pennsylvania, postage prepaid, properly addressed as follows: David A. Fitzsimons, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 Monica D. Zercher Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011 Marlin McCaleb Attorney I.D. No. 06353 219 East Main Street P.O. Box 230 Mechanicsburg, Pennsylvania 17055 (717) 691-7770 FAX: (717) 691-7772 Attorney for Hanover Associates LAW OFFICES MARLIN R. McCALEB -3- 2009 MAR 31 All 10: 4 0 10 F:\FILES\Clients\11093 Calabrese\l 1093.2.petition4.wpd\tde Created: 9/20/04 0:06PM Revised: 4/28/09 8:21AM 11093.11 Seth T. Mosebey, Esquire I.D. No. 203046 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant SOREL FORGE CO., IN THE COURT OF COMMON PLEAS OF Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2005-1827 CALABRESE & SONS, INC., CIVIL ACTION - LAW Defendant PETITION FOR RELIEF AND NOW, comes the Defendant, Calabrese & Sons, Inc., by and through its attorneys, MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, and files this Petition for Relief from execution on an alleged judgment, and in support thereof, avers the following: FACTS 1. Defendant Calabrese & Sons, Inc. ("Defendant") is a Pennsylvania corporation with a principal place of business at 406 Brandy Lane, Mechanicsburg, Cumberland County, Pennsylvania. 2. Sorel Forge Co. ("Plaintiff') is a Canadian corporation having its principal place of business at 100 McCarthy St. Joseph deSorel, Canada J3R 3M8. 3. Hanover Associates is a Pennsylvania limited partnership with a registered office address of 311 East Elmwood Avenue, Mechanicsburg, Cumberland County, Pennsylvania. 4. On or about March 25, 2005, Plaintiff and Defendant entered into a Promissory Note pursuant to which Defendant agreed to repay a loan from Plaintiff in the amount of $245,288.59. A true and correct copy of the Promissory Note is attached hereto and incorporated as Exhibit "A." 5. The Promissory Note was filed on April 7, 2005. 6. On or about April 15, 2005, Plaintiff filed an Assignment of Judgment which purportedly assigned and transferred to Hanover Associates all of Plaintiff's right, title and interest in a judgment allegedly entered against Defendant in the above-captioned action. A true and correct copy of the Assignment of Judgment is attached hereto and incorporated as Exhibit "B." 16 7. To the best of Defendant's knowledge and upon a review of the docket entries in this matter, no judgment has ever been entered against Defendant based on the Promissory Note. 8. On September 5, 2006, David A. Fitzsimons, Esquire filed a Praecipe withdrawing his appearance in this matter. A true and correct copy of the Praecipe is attached hereto and incorporated as Exhibit "C." 9. On September 5, 2006, Robert E. Chernicoff, Esquire filed a Praecipe entering his appearance in this matter. A true and correct copy of the Praecipe is attached hereto and incorporated as Exhibit "D." 10. On March 31, 2009, Marlin R. McCaleb, Esquire filed a Praecipe for Withdrawal and Entry of Appearance withdrawing the appearance of Robert E. Chemicoff, Esquire and entering the appearance of Marlin R. McCaleb. A true and correct copy of the Praecipe for Withdrawal and Entry of Appearance is attached hereto and incorporated as Exhibit "E." 11. On September 5, 2006, a Judgment Release was filed which released New Lot 2 from the judgment allegedly entered on the Promissory Note. A true and correct copy of the Judgment Release is attached hereto and incorporated as Exhibit "F." 12. The Judgment Release filed on September 5, 2006, acknowledged a partial satisfaction of the amount of the Promissory Note. 13. On September 11, 2007, a second Judgment Release was filed which released New Lot 1 from the judgment allegedly entered on the Promissory Note. A true and correct copy of the second Judgment Release is attached hereto and incorporated as Exhibit "G." 14. On March 31, 2009, Hanover Associates filed a Notice Under Pa. R.C.P. No. 2958.1 of Judgment and Execution Thereon notifying Defendant that a judgment in the amount of $245,288.59 had been entered against it and that its money and property may be taken within thirty (30) days of the date of the Notice. A true and correct copy of the Notice is attached hereto and incorporated as Exhibit "H." NO JUDGMENT HAS BEEN ENTERED AGAINST DEFENDANT 15. To date, no judgment, including a confession of judgment, has been entered on the Promissory Note which was filed on April 7, 2005. 16. Before any execution on the PromissoryNote mayproceed, a confession of judgment must be entered pursuant to Pa. R.C.P. 2950 et seq. 17. To date, Hanover Associates has failed to take any steps required as a prerequisite to the execution of a confession of judgment. 18. Consequently, Hanover Associates should be prevented from executing on any money or property owned by Defendant. FULL PAYMENT OF THE PROMISSORY NOTE 19. Moreover, Defendant has paid the amount of the Promissory Note in full. 20. The Judgment Release filed on September 5, 2006, acknowledges a partial satisfaction of the Promissory Note. 21. Defendant and Hanover Associates also negotiated the amount of the Promissory Note to be $100,000.00. 22. Thereafter, Defendant satisfied the balance of the Promissory Note. 23. Consequently, any judgment that has been entered should be stricken, or in the alternative, opened so that Defendant may contest the amount of the judgment, if any. 24. No Judge has ruled upon any other issue in this matter. WHEREFORE, any execution on Defendant's money or property should be stayed indefinitely, and in the event that Hanover Associates is able to prove that a judgment has been entered by confession in this matter, the judgment should be stricken, or in the alternative, opened. MARTSON LAW OFFICES By '24P J-, oi4 Seth T. Mosebey, Esq ' e I.D. No. 203046 10 East High Street Carlisle, PA 17013 (717) 243-3341 ??, D c} Date: Attorneys for Defendant EXHIBIT A 04184/2005 13:33 7172491850 F:N(CC?DATaFR.f Cewnet4Cri+rv??141096S?Mr $ 245,288.59 MDWO pROMXSSORY NOTE PAGE 03/10 Dated: Mamh 25,2W$ Cumberland County, Pemlolvania PROMISE TO PAY: FOR VALUE RECEIVED, CAL.ABRESE & SONS, INC., a Permsylvania corporation with a business address cfP.O. BOX 1667 406 Brandy Lase 1ldeabanicsburg, PA 17055 ("Maker") promises to payto SOREL FORGE CO., a Canadian corporation ts principal place o f business at 140 McCarthy St. Joseph deSorel, Quebec, Canada J3R 31V1?,rW d i") or to the order thereof, in. l awfd money of the United States ofAmerica, the principal amount of Two Hundred Forty Five Thousand, Two Hundred EightyEightDollars and FiftyNine Cants ($245,288.59), togetherwith interest on the unpaid principal balance from the date of this Instrument until paid in full. PAYMENT: Maker will pay this loan in accordance with the following payment schedule: Payment upon demand. Nicker will pay Holder at Holder's address shown above or at such other place as Holder way dcsignateinwriting, Unlessotherwiseagreed orrequiredbyg9heablelaw, paymentswillbeapplied first to accrued unpaid intexcst, then to principal, and any remaining amount to any unpaid costs and ]ate charges. PREPAYMENT: Maker may pay, without penalty? all or a pardon of the =aunt owed earlier than it i s due. Early payments will not, unlem agreed to by Holder in writin& relieve Maker of Mater's obligation to continue to matte payments under the above payment schedule, Rather, they will, reduce the principal balance due and may result in Maker making fewer payments, DEFAULT: Maker will be in default if any of the following occurs: (a) Maker fails to make any payment wbca due; (b) Maker breaks any promise Maker bas made to Holder, or Maker fails to pErform promptly at the time and strictly in the manner provided in this Note, or any egtment related to this Note; (c) lblalter defaults under any loan, extension of credit, security &Sre m%lt, purchase ar sales agreement. or any other agreement, in favor of any o%ar ereditoi orpareon that may materially affect any o f the Maker's property or Maker's ability to repay thin Note or parf am Maker's obligations under this Note or any related agreement; (d) Buy r Won or statement made or fbtnished to Holder by Maker or on Maker's behalfis false or nUaleading in any material respect; (e) Maker becomes insolvent, a receiver is appointed for anypart of Makees properly, Maker makes an assignment for the benefit of creditors, or any proceeding is commenced either by Maker or against Maker under any banlQuptcy or insolvency laws; (f) any creditor tries to take any of Maker's property on which the Holder has a lien or security interest; (g) any of the events described in this default section occurs with ;respect to any guarantor of this Note; (h) Holder, in good faith, doom Holder imsecure, 04/04/2005 13:33 7172431850 MDWQ PAGE 04110 CONFESSION OF JUDGMENT: The Maker hereby irrevocably wAodw and empowers any prothonotary, clerk or attorney of any court ofreoord within the United States or elsewhere to appear for the Maker and, with or without declaration, to confess jud ment at any time or tines against each, any or all of the Maker(s) and in favor of the Hoiden ha eof for the above sutra plus interest thereon from the date hereof, and for so doing, this Note or a copy of this note, verified by affidavit shall be sufficient warrant, The Makcr herby releases all errors and expressly waives all rights to any stay of execution, sequestration of gents artd,e x mptiou of any pxopbrty from levy and $ale of execution under any law or rule of court now in force or hereafter cAacted. All of the foregoing promises are the joint and several promises ofthe Maker and shall bind the Maker, its successors and assigns. The Maker and all endorser waive protest, demand and notice of nonpayment ofthis Note. The authority granted in this Note to confess judgment against Maker shall not be exhaustalby any exercise ofthat authority, but shall continue from. time to time and at all times until payment in fall of all amounts due under this Note, 11OLDUIS RIGHTS: Upon default, Holder may declare the entire =paid principal balance on this Note axxd all accrued unpaid iutearest inodiately due, without notice, And tl Mskec will pay that amount. Holder may hire or pay someone else to help colloot Ws Kota if Maker does Mpay. Maker will also pay Holder that amount. This inctudes, subj act to arty applicable law, Holder's attorney's firs and legal and court expenses whether or not there is a lewgwit, iaclttding attorneys fees and Holder's legal expenses forbanlauptcyproceedings ( including efforto tomod* orvaoate my mgmatic stay or injunction ), appeals, and any other post judgment collection coats and services. Maker will also pay any court costs, in addition to all other sums provided by law. If judgment is entered in connection wit} this Note, interest will continue to accrue ou this note after judp mt at the rate applicable to this Note at the time judgment is entered. The remedies provided to the Holder in this document in the event of a default of a breach of the conditions bterein, drill not be c*5shved to be exclusive of any other remedy available to the Holder and the Holder May exercise any reMedy availablc to Holder. Additionally, the exercise of anyone remedy drill not be considered a waiver of all those other remedies available to the Holder. GENERAL PROVISIONS: The interpretation and construction of this Note along with the rights and remedies available to the parties hereto shall be govecsted by the laws of the Commonwealth of Pennsylvania. If any provision of this agreement shalt be held invalid or unenforceable, such shall not affect any other provision of the Note. This Note rreprsents the entire agreement between the Maker and Holder. No waiver or modification of the terms of this note sWJ be valid unless in writing, signed by the Maker and Holder ' v 04/04/2005 13:33 7172431850 MDWQ PAGE 05/10 PRIOR TO SIGNING THIS NOTE, MAKER ACKNOWLEDGES THAT TT HAS SEEN REPRESENTED BY LEGAL COUNSEL IN CONNECTION WrM THE EXECUTION AND DELIVERY OF THIS NOTE, THAT IT HAS READ AND UNDERSTOOD ALL THB PROVISIONS OF THIS NOTE, INCLUDING THB CONFESSION OF XWMENT PROVISION. MAKER AGREES TO THE TERMS OF THE NOTE AND ACKNOWLEDOBS RBC;EIPT OF A COMPLETED COPY OF TMS NOTE. day of WrMS WWHERSOF, Maker has caused this Note to be executed under seal thi W ATTEST: CALABRK9E & SONS, INC. f L^ Y? r 1 ?`-; IS y` N ?a `n u EXHIBIT B 04/04/2005 13:33 7172431850 MDWO Mar 24 135 12:13p CnLABRESE & SOMS 7176878306 EXHIBIT "A" IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SOREL FORGE CO., Plaintiff No. 05-1827 - Civil v. CALABRESE A SONS, INC., Civil Action - Lew Defendant ASSIGNME&T OF JUDGMENT FOR VALUE RECEIVED, Plointf, Sorel FoW Co„ hereby a"Sm, transfers and sets over to HanoverAssotlates, a Pennsylvania United pap4mi l 1p. all of Plsintra tight, title and Interest In and to the Judgment entered agsk* Daftrdent. Webrwo & Sons, Inc., in the captioned action. PAGE 09/10 P.5 AprII _j__, 2005 FIRM NAMPS, Sat?ani ? Y?RC? CO, IMS BY RE Addneee: L MARC 1Ue, RAE McC?R?'?i? -SA AtnT for Sot+el Fad Co, (J?C ? C. C?n?AUA a2k -IMP -4. r) t? ) ca u? =ty C rI .r EXHIBIT C HANOVER ASSOCIATES Plaintiff V. CALABRESE & SONS9 INC., Defendant TO THE PROTHONOTARY: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 2005-01827 PR RECIPE Please withdraw my appearance from the above captioned matter. MARTSON, DEARDORFF, WILUkMS 8t OTTO By: David A. Fitzsimons 10 East High Street Carlisle, PA 17013 (717) 243-3341 . 4 Certificate of Service AND NOW, this day of? 41(200b, I hereby verify that I have caused a true and correct copy of the foregoing Praecipe to be placed in the U.S. Mail, first class, postage prepaid: Robert E. Chemicoff P.O. Box 60457 Harrisburg, PA 17106-0457 4--? Monica D. Zercher Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011 (717) 763-1383 ? .? ? C 4 °^ (/! ? T ? ..- 4 ? ??? riii?' ? • t? °? ; '+r ; ? ^?! ? :.' . . ? ?? ? x EXHIBIT D HANOVER ASSOCIATES Plaintiff V. CALABRESE & SONS, INC., Defendant TO THE PROTHONOTARY: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 2005-01827 PRAECIEE Please enter my appearance in the above captioned matter. CUNNINGHAM & CHERNICOFF, P.C. Robert E. Cfie Sup. Ct. ID No. P.O. Box 60457 Harrisburg, PA 17106-0457 (717) 238-6570 t'. b Cer fieate of Ser dge AND NOW, this 0- day of _ 2006,1 hereby verify that I have caused a true and correct copy of the foregoing Praecipe to be hand-delivered to: David A. Fitzsimons, Esquire 10 East High Street Carlisle, PA 17013 k??- Monica D. Ze er Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011 (717) 763-1383 R° .. C= 's no rfl O R CD t i .i i EXHIBIT E SOREL FORGE CO., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. No. 05-1827 - CIVIL CALABRESE & SONS, INC., Defendant CIVIL ACTION - LAW PRAECIPE FOR WITHDRAWAL AND ENTRY OF APPEARANCE ITO THE PROTHONOTARY: Please withdraw my appearance on behalf of Hanover Associates, assignee of the Plaintiff, Sorel Forge Co., in the above-captioned matter. Date: March 4, 2009 "Robert -E. C 1 , Esquire M*p7 (attese-SrN n gham & Chernicoff) 2320 North Second Street Harrisburg, PA 17110 Please enter my appearance on behalf of Hanover LAW OFFICES MARLIN R. McCALEB Associates, assignee of the Plaintiff, Sorel Forge Co., in the above-captioned action. Date: March 4, 2009 Marlin R. cCaleb Attorney I.D. No. 06353 219 East Main Street P.O. Box 230 Mechanicsburg, PA 17055 (717) 691-7770 FAX: (717) 691-7772 Attorney for Hanover Associates .-1 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Praecipe for Withdrawal and Entry of Appearance was served upon the Defendant herein, or its attorney, and other counsel herein, on March 31, 2009, by depositing same in the mail at the United States Post Office at Mechanicsburg, Pennsylvania, postage prepaid, properly addressed as follows: Calabrese & Sons, Inc. 406 Brandy Lane Mechanicsburg, PA 17055 David A. Fitzsimons, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 Robert E. Chernicoff, Esquire Cunningham & Chernicoff, P.C. P.O. Box 60457 Harrisburg, PA 17106-0457 Monica D. Zercher Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011 Marlin R. McCaleb Attorney.I.D. No. 06353 219 East Main Street P.O. Box 230 Mechanicsburg, Pennsylvania 17055 (717) 691-7770 FAX: (717) 691-7772 Attorney for Hanover Associates ' LAW OFFICES MARLIN R. McCALEB -2- EXHIBIT F s. R. •? • t hV*pwiv\Clients\RSR Misc\Calubresc.JUDGMENT RELEASE.S245,288.59.doc HANOVER ASSOCIATES, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, : PENNSYLVANIA V. : NO. 2005-01827 CALABRESE & SONS, INC., : $245,288.59 Defendant : JUDGMENT IN FAVOR OF PLAINTIFF JUDGMENT RELEASE WHEREAS, Plaintiff entered a judgment against Defendant on April 7, 2005, to the docket number as referenced above; and WHEREAS, the Defendant is the owner of a certain parcel of land located in Mechanicsburg Boro and Hampden Township, Cumberland County, Pennsylvania more, commonly known as 406 Brandy Lane; and WHEREAS, on April 2, 2006 Defendant filed a Preliminary/Final Subdivision Lot Consolidation Plan to Cumberland County Plan Book 92 Page 44 subdividing what was commonly known as 406 Brandy Lane into two separate lots shown on said Plan as New Lot 1 and New Lot 2; and WHEREAS, in consideration of the Defendant partially satisfying the above-referenced judgment, Plaintiff has agreed to release the New Lot 2, as more fully described on Exhibit A attached hereto, from the lien and operation of the above-referenced judgment. NOW THEREFORE, HANOVER ASSOCIATES, Plaintiff in the above Judgment, does appear and acknowledge that she has this day received from CALABRESE & SONS, INC., the Defendant in the above Judgment, PARTUL payment and satisfaction of the same, with interest and costs, and desires that this Judgment Release be entered upon the records thereof only as it effects the New Lot 2. New Lot 2 is hereby released from the lien, operation and effect of the said judgment. This Judgment shall, until satisfied of record, remain in full force and effect against the New Lot 1. And further, it does hereby authorize and empower the Prothonotary of said Court to appear for it and in its name and stead to enter the Judgment Release upon the record of said Judgment, as fully and effectually, to all intents and purposes as it could, were it present to do so. And for so doing this shall be your sufficient warrant of authority. IN WITNESS WHEREOF, the Plaintiff has caused these presents to be signed this day of June, 2006. ATTEST: HANOVER ASSOCIATES By: Its: • • . . 1 • CUNNINGHAM & CHERNICOFFi P. By. Robert E. Chem Sup. Ct. ID No. P.O. Box 60457 Harrisburg, PA 17106-0457 (717) 238-6570 J-*Wm fients\RSR MiscTatabrese.JUDGMENT RELEASE.S245,288.59.doc COMMONWEALTH OF PENNSYLVANIA ) SS. COUNTY OF ctc c?4 ?L c-r? ll ) On this, the T" day of ,,,2006, before me, a Notary Public, the undersigned officer, personally appeared l ? known to me (or satisfactorily proven) to be the person whose name is subscribed as agent for HANOVER ASSOCIATES, and acknowledged that he/she executed the same as the act of his/her principal for the purpose therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. J"4-4?0 - otary Publie NOTARIAL SM JULIEANNE AMETp.&M, Nftq pubk Cfty of HaffWurE, PA My Commfa" EOM Feb. 22, 2007 ALL THAT CERTAIN piece or parcel of land, situate, lying and being in Mechanicsburg Borough, Cumberland County shown as New Lot 2 on the Calabrese & Sons, Inc. Preliminary/Final Subdivision/Lot Consolidation Plan Recorded April 3, 2006 in the Cumberland County Recorder of Deeds Office in Plan Book 92 Page 44 to wit: BEGINNING at a point on the southern side of Brandy Lane at a 518 inch rebar with cap thence South 27 degrees 04 minutes 00 seconds East a distance of 376.89 feet to a point thence North 37 degrees 14 minutes 52 seconds East a distance of 509.19 feet to a point thence North 37 degrees 05 minutes 01 seconds East a distance of 66.58 feet to a point thence South 42 degrees 05 minutes 07 seconds East a distance of 179.93 feet to a point thence South 24 degrees 27 minutes 41 seconds East a distance of 490.52 feet to a point thence South 65 degrees 27 minutes 00 seconds West a distance of 593.70 feet to a point thence North 27 degrees 04 minutes 00 seconds West a distance of 744.09 feet to a point thence North 40 degrees 20 minutes 30 seconds East a distance of 54.16 feet to a point and place of BEGINNING. CONTAINING 7.628 acres more or less. Certificate of Service AND NOW, this day of ?2006, I hereby verify that I have caused a true and correct copy of the foregoing Praecipe to be placed in the U.S. Mail, first class, postage prepaid and addressed as follows: Robert E. Chernicoff, Esquire 2320 North Second Street Harrisburg, PA 17110-1008 and hand-delivered to: David A. Fitzsimons, Esquire 10 East High Street Carlisle, PA 17013 Monica D. ercher Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011 (717) 763-1383 L a O r.? C? ,r -tom b? N cl> LA 0 c1 N a Otb, EXHIBIT G SOREL FORGE CO., IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, PENNSYLVANIA VS. No. 1827 CIVIL 2005 CALABRESE & SONS, INC., Defendant CIVIL ACTION -LAW In relation to the above referenced Judgment, for value received, the uadarsigned, with the legal authority to do so, hereby releases from the lien, effect and operation of the above judgment: ALL THAT CERTAIN tract of land known as Lot No. 1, Brandy Lane, partly in the Township of Hampden and partly in the Borough of Mechanicsburg, County of Cumberland and Commonwealth of Pennsylvania, known as Tax Parcel No. 10-22-0521-015. Provided, however, that nothing herein contained shall affect such Judgment or the Tian dwreofor its legal validity upon or against any other property of Defendant in Cumberland County, Penoylvania or elsewhere. This Judgment Release is executed by Hanover Associates, LP by virtue ofdw some having been assigned to Hanover Associates by the Plaintiff by Assignment dated April 11, 2006 and of record at the above docket number and term and pursuant to an Order ofthe Court of Common Pleas of Cumberland County, Pennsylvania, dated August 28, 2007. Witness my hand and seal this 3? w day of *,"*%L T . 2007. HANOVER ASSOCIATES, LP By: Date: David G. Fialim a neral Partner ALL THAT CERTAIN tract of lend with improvaeaeats thereon created sitaate partly in Hampden Township and partly in the Borough of Mechanicsbarg, Cumberland County, Pennsylvania, bounded and dawns'bed aacmftg to the Calabrese & Sons, Inc., Pre iminary/Fiual Subdivision/14 Coasolidatioa Play prepared by Pam Teas Enginearin& Inc., dated Novacabes 16, 2005, and recorded in Cumberland County, Pennsylvania Plan Book,92, Page 44, as Mows: BEGD NG at an iron pin found on the dedicated right-of-way line of BrandyLsae (50' row) at the northwestern comer of land now or formerly of Mary Frances & Floyd E. Weaver, thence along said land of Weaver and lend now or ft me* of William L. Jr. And Deborah S. Shipman, South 50 dogma 34 minutes 52 soconds East 244.48 feet to an iron pin found; thence along said land of Shipman, an unopened street, and land now'or formerly of StephenF. &f aumE. Skkonis, North 3 8 degrees 35 minutes 08 seconds East 435.00 feet to ant= pin found; thanes along an unopened street, land now or formerly of Roy R. & Carol P. MwaN Bay Stvd (private), and land now or formerly of Jetty T. & Lorraine R. Flamiu& North 38 degrees, 40 minutes 48 seconds East 332.11 feet to a W pipe found; thence along land now or formerly of the United States of Americs, South 31 dues 45 minutes 01 second East 1,080.42 feet to a V pipe filled with eoncz*a; dum along same, South 65 degrees 41 minutes .40 seconds West 658.31 feet to an imn.pin found; thence along New Lot 2 as set forth on the above-referenced Pfau the following three courses and distances: (1) North 24 degrees 27 minutes 41 seconds West 490.52 feet to an iron pin found; (2) North 42 degrees 05 minutes 07 seconds West 179.93 feet to an iron pin found; and (3) South 37 degrees 05 minutes 01 second West 66.58 feet to an iron pin found; thence along land now or formerly of Michael S. Ndlor, North 50 degrees 34 minutes 52 seconds West 325.26 feet to an iron pin found; thence along said Brandy Lanc, North 38 degrees 53 minutes 34 seconds Past 55.03 feet to an iron pin found, the point and place of Beginning. BEINGNew Lot 1 on the Calabrese & Sons, Inc., Preliminsy/FbW Subdivision/W Consolidation Plan containing 14.953 acres. woo j 40-1 EXHIBIT H SOREL FORGE CO., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. No. 05-1827 - CIVIL CALABRESE & SONS, INC., Defendant CIVIL ACTION - LAW NOTICE UNDER FS.R.C.P. No. 2958.1 OF JVE93M AND EXECUTION T8lRlON Notice of Defeadaat's Rights TO: CALABRESE & SONS, INC. (Defendant) 406 Brandy Lane Mechanicsburg, PA 17055 A judgment in the amount of $245,288.59 has been entered against you and in favor of the Plaintiff without any prior notice or hearing based on a confession of judgment contained in a written agreement or other paper allegedly signed by you. That judgment was assigned by the Plaintiff to Hanover Associates, assignee herein, on April 11, 2005. The sheriff may take your money or other property to pay the judgment at any time after 30 days after the date on which this Notice is served on you. You may have legal rights to defeat the judgment or to prevent your money or property from being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN 30 DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH LAW OFFICES i? BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT MARLIN R. McCALEB HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE: Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 Respectfully submitted, Marlin R' McCaleb Attorney I.D. No. 06353 219 East Main Street P.O. Box 230 Mechanicsburg, PA 17055 (717) 691-7770 FAX: (717) 691-7772 Attorney for Hanover Associates, Assignee herein LAW OFFICES MARLIN R. MCULEB -2- a CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the !within Notice Under Pa.R.C.P. No. 2958.1 of Judgment and Execution Thereon was served upon the following counsel on iMarch 31, 2009, by depositing same in the mail at the United States Post Office at Mechanicsburg, Pennsylvania, postage prepaid, properly addressed as follows: David A. Fitzsimons, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 Monica D. Zercher Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011 Marlin Mc leb Attorney I.D. No. 06353 219 East Main Street P.O. Box 230 Mechanicsburg, Pennsylvania 17055 (717) 691-7770 FAX: (717) 691-7772 Attorney for Hanover Associates LAW OFFICES MARLIN R. MCCALEB -3- )I ! Fic f'r,,. r ARY 2004 MAR 31 Ash 10: 4 0 Ur ?_, „,. 717 697 6506 10:07:25 a.m. 0425-2009 1 /1 VERIFICATION I, Joseph Calabrese, President of Calabrese & Sons, Inc., hereby verify that I am authorized to sign this Verification and have reviewed the foregoing document and to the extent that the foregoing document contains facts supplied by or known to me, they are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S.A. §4904, relating to unworn falsification to authorities. Calabrese & Sons, Inc. t J eph Calabrese F:flLESd7ienUM 11193 CaldweW l 11193.2.pdW-4.wpd r CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent for Martson Law Offices, hereby certify that a copy of the foregoing Petition for Relief was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Marlin R. McCaleb, Esquire 219 East Main Street P.O. Box 230 Mechanicsburg, PA 17055 Monica D. Zercher, Esquire REAGER & ADLER, P.C. 2331 Market Street Camp Hill, PA 17011 MARTSON LAW OFFICES By: L/11 )A -0?U-? M. Price n East High Street Carlisle, PA 17013 (717) 243-3341 Dated: L/ YJ Q i TH- 259 APR 28 ! SOREL FORGE CO., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW CALABRESE & SONS, INC., Defendant NO. 05-1827 CIVIL TERM ORDER OF COURT AND NOW, this 61h day of May, 2009, upon consideration of Defendant's Petition for Relief, 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. Depositions shall be completed within 49 days of the date of this order; 5. Argument shall be held on Thursday, July 9, 2009, at 11:15 a.m.., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. 6. Briefs shall be submitted at least five days prior to argument. BY THE COURT, esley Ol ; ., J. Marlin R. McCaleb, Esq. 219 E. Main Street P.O. Box 230 Mechanicsburg, PA 17055 Attorney for Hanover Associates ?ino `1R. L 90 :Z Oj 9- ),VW 60oz 31061 1-(BIH "."Seth T. Mosebey, Esq. 10 East High Street Carlisle, PA 17013 Attorney for Defendant :rc C,D tkr rn t lS?rd?? SOREL FORGE CO., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. No. 05-1827 - CIVIL CALABRESE & SONS, INC., Defendant CIVIL ACTION - LAW NOTICE TO PLEAD TO: CALABRESE & SONS, INC., Defendant YOU ARE HEREBY NOTIFIED to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered again--v YOU. Date: May 27, 2009 M lin R. Mc aleb Attorney I.D. No. 06353 219 East Main Street P.O. Box 230 Mechanicsburg, PA 17055 (717) 691-7770 FAX: (717) 691-7772 Attorney for Hanover Associates, Respondent herein LAW OFFICES MARLIN R. McCALEB SOREL FORGE CO., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. No. 05-1827 - CIVIL CALABRESE & SONS, INC., Defendant CIVIL ACTION - LAW ANSWER TO PETITION FOR RELIEF I LAW OFFICES MARLIN R. McCALEB AND NOW comes Hanover Associates, Respondent herein, by and through its attorney, Marlin R. McCaleb, Esquire, and files this Answer to Defendant's Petition for Relief: FACTS 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Denied as stated, for the reasons set forth in Respondent's New Matter, below, the averments of which are incorporated herein and made a part hereof by reference thereto. 8. Admitted. 9. Admitted. 10. Admitted. 11. Admitted. 12. Admitted. 13. Admitted. 14. Admitted. NO JUDGMENT HAS BEEN ENTERED AGAINST DEFENDANT 15. Denied as stated for the reasons set forth in Respondent's New Matter, below, the averments of which are incorporated herein and made a part hereof by reference thereto. 16. The averments of Paragraph 16 set forth a legal conclusion to which no responsive pleading is required. 17. Denied as stated for the reasons set forth in Respondent's New Matter, below, the averments of which are incorporated herein and made a part hereof by reference thereto. 18. The averments of Paragraph 18 set forth a legal conclusion to which no responsive pleading is required. FULL PAYMENT OF THE PROMISSORY NOTE 19. Specifically denied. Although Defendant has made payments to Respondent, all such payments were on account of other obligations owed by Defendant to Respondent and were not account of any obligations to Respondent under the said Promissory Note and judgment herein. 20. Admitted. 21. Specifically denied. Respondent has never agreed to any reduction in the principal balance of said Promissory Note and judgment herein and Respondent claims the full amount thereof, together with interest and costs, including attorney's LAW OFFICES MARLIN R. McCALEB -2- fees. 22. Specifically denied, for the reasons set forth in Paragraph 19, above, the averments of which are incorporated herein and made a part hereof by reference thereto. 23. The averments of Paragraph 23 set forth a legal conclusion to which no responsive pleading is required. 24. Admitted. NEW MATTER Respondent sets forth the following New Matter: 25. The Prothonotary entered judgment against the Defendant herein on April 7, 2005, pursuant to the terms of, and the authorization set forth in, the said Promissory Note, as evidenced by the docket maintained by the Prothonotary, a true copy of which is attached hereto and made a part hereof, marked Exhibit "A". 26. In addition, the Prothonotary entered said judgment as a judgment against the Defendant in the Prothonotary's Judgment Index and gave written notice of the entry of such judgment to Defendant pursuant to Pa.R.C.P. No. 236. 27. The judgment release described in Paragraphs 11, 12 and 19, above, erroneously recited that the consideration therefore was in partial satisfaction of the said judgment. Respondent always understood and agreed that said consideration was to be applied on account of another obligation owed by Defendant to Respondent and not on account of the Promissory LAW OFFICES MARLIN R. McCALEB -3- Note and judgment herein and Respondent further believes and therefore avers that the Defendant understood and agreed to the same. 28. The said Promissory Note is a demand note, so that upon demand by the holder, the full remaining balance owed becomes due and payable. 29. The Notice referred to in Paragraph 14 of the Petition for Relief amounts to a demand for payment by Respondent. 30. For the foregoing reasons, Respondent is eligible to file a praecipe for a writ of execution. WHEREFORE, Defendant's Petition for Relief should be dismissed. Marlin R. McCaleb Attorney I.D. No. 06353 219 East Main Street P.O. Box 230 Mechanicsburg, PA 17055 (717) 691-7770 FAX: (717) 691-7772 Attorney for Hanover Associates, Respondent herein LAW OFFICES MARLIN R. McCALEB -4- VERIFICATION DAVID G. FISHER hereby certifies and states as follows: that I am the General Partner of Hanover Associates, a limited partnership, the Respondent in the foregoing Answer to Petition for Relief; that as such General Partner I am authorized to and do make this verification for and on behalf of said Respondent; that the facts set forth in the foregoing Answer are true and correct to the best of my knowledge, information and belief; and I understand that false statements herein are made subject to the penalties of 18 Pa.C.S., Section 4904, relating to unsworn falsification. Date: May 27, 2009 „ T---- David'G. Fis er LAW OFFICES MARLIN R. McCALEB -5- CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Respondent's Answer to Petition for Relief was served upon the Defendant herein, or its attorney, on May 27, 2009, by depositing same in the mail at the United States Post Office at Mechanicsburg, Pennsylvania, postage prepaid, properly addressed as follows: Seth T. Mosebey, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 ar zn R. McCaleb, Esquire LAW OFFICES MARLIN R. McCALEB -6- ????? ? PYS511 Cumberland County Prothonotary's Office Page 1 Civil Case Print 2005-01827 SOREL FORGE CO (vs) CALABRESE & SONS INC Reference No... Filed......... 4/07/2005 Case Type.....: JUDGMENT - NOTE Time........ : 2:57 Judgmen.t..... : 245288.59 Execution Date 0/00/0000 Judge Assigned: OLER J WESLEY JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: ******************************************************************************** General Index Attorney Info HANOVER ASSOCIATES PLAINTIFF MCCALEB MARLIN R 100 MCCARTHY ST JOSEPH DESOREL QUEBEC CANADA J3R3M8 CALABRESE & SONS INC DEFENDANT P 0 BOX 1667 406 BRANDY LANE MECHANICSBURG PA 17055 ******************************************************************************** Judgment Index Amount Date Desc CALABRESE & SONS INC 245,288.59 4/07/2005 NOTE ******************************************************************************** * Date Entries FIRST ENTRY - - - - - - - - - 4/07/2005 JUDGMENT NOTE ENTERED IN THE AMOUNT OF $245288.59 DATED MARCH 25, 2005 ------------------------------------------------------------------- 4/07/2005 NOTICE MAILED TO DEFENDANT ------------------------------------------------------------------- 4/15/2005 ASSIGNMENT OF JUDGMENT FROM SOREL FORGE CO TO HANOVER ASSOCIATES ------------------------------------------------------------------- 9/05/2006 PRAECIPE FOR WITHDRAWAL OF APPEARANCE - BY DAVID A FITZSIMONS ATTY FOR PLFF ------------------------------------------------------------------- 9/05/2006 PRAECIPE FOR PARTIAL JUDGMENT RELEASE - BY PLFF ------------------------------------------------------------------- 9/05/2006 PRAECIPE TO ENTER APPEARANCE - BY ROBERT E CHERNICOFF ATTY FOR PLFF ------------------------------------------------------------------- 9/11/2007 JUDGMENT RELEASE - BY DAVID G FISHER GENERAL PARTNER PLFF ------------------------------------------------------------------- 3/31/2008 PRAECIPE FOR WITHDRAWAL OF APPEARANCE FOR PLFF - BY ROBERT E CHERNICOFF ESQ ------------------------------------------------------------------- 3/31/2008 ERQECIPE FOR ENTRY OF APPEARANCE FOR PLFF - BY MARLIN R MCCALEB ------------------------------------------------------------------- 3/31/2008 NOTICE UNDER PA RCP NO 2958.1 OF JUDGMENT AND EXECUTION THERON - BY MARLIN R MCCALEB ATTY FOR PLFF ------------------------------------------------------------------- 4/28/2009 PETITION FOR RELIEF - BY SETH T MOSEBEY ATTY FOR DEFT ------------------------------------------------------------------- EF: 5/06/2009 ORDER COURT DECAUSEFT'S NOTIENTITLED TO RELIEF REQUESTED 2/ PLFF SHALL FILE ANSWER TO MOTION WITHIN 21 DAYS OF DATE OF THIS ORDER 3/ PETITION SHALL BE DECIDED UNDER PA RCP 206.7 ORDER DEPOSITION SHALL BE COMPLETED WITHIN 49 DAYS OF DATE OF THIS 5/ ARGUMENT HELD 7/09/09 AT 11:15 AM CR1 CUMB CO COURTHOUSE 6/ BRIEFS SHALL BE SUBMITTED AT LEAST 5 DAYS PRIOR TO ARGUMENT - Y J WESLEY OLER JR J - COPIES MAILED 5/06/09 - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information Exhibit "A" PYS511 Cumberland County Prothonotary's Office Civil Case Print 2005-01827 SOREL FORGE CO (vs) CALABRESE & SONS INC Page 2 Reference No... Filed......... 4/07/2005 Case Type.....: d JUDGMENT - NOTE Time........ : 2:57 Ju gment..... : 245288.59 Execution Date 0/00/0000 Judge Assigned: OLER J WESLEY JR Jury Trial.... Disposed Desc.: ---- ------- C C t Disposed Date. 0/00/0000 a - se ommen s ------------ - Higher Crt 1.: * F D bit l Higher Crt 2.: ees & e s Beg Ba ********************** * * Py*mts/Ad' End Bal * * ****** ******* * ****** ******************** *********** JDMT/NOTE 9.00 9.00 .00 TAX ON NOTE .50 .50 .00 SATISFACTION 5.00 5.00 .00 AUTOMATION FEE 5.00 5.00 .00 JDMT/ASSIGN 5.00 5.00 .00 JDMT/RELEASE 5.00 5.00 .00 SATISFACTION 8.00 --- - - - - 8.00 .00 - - - - ---- 37.50 --------- 37.50 ------------ .00 ******************************************************************************** * End of Case Information ******************************************************************************** Exhibit "A" 'i 1 11 1 F T?" 2"'.'ll.""y 27 M !: 923 a h. SOREL FORGE CO., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW CALABRESE & SONS, INC., Defendant NO. 05-1827 CIVIL TERM IN RE: DEFENDANT'S PETITION FOR RELIEF ORDER OF COURT AND NOW, this 8 h day of June, 2009, upon consideration of the attached letter from Seth T. Mosebey, Esq., attorney for Defendant, the argument previously scheduled in the above matter for July 9, 2009, is rescheduled to Thursday, August 20, 2009, at 11:00 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. Briefs shall be submitted at least five days prior to argument. BY THE COURT, ?Marlin R. McCaleb, Esq. 219 E. Main Street P.O. Box 230 Mechanicsburg, PA 17055 Attorney for Hanover Associates ,,<eth T. Mosebey, Esq. 10 East High Street Carlisle, PA 17013 Attorney for Defendant :rc J FILED--O ICE OF THE FI"(`7-14llNlr)TARY 2009 JUN -9 AM I i : 38 r ENNS`tLVrNIA MARTSON DE 1VIARTSON LAW OFFICES 10 EAST HIGH STREET CARLISLE, PENNSYLVANIA 17013 TELEPHONE (717) 243-3341 FACSIMILE (717) 243-1850 INTERNET www.martsonlaw.com VIA HAND DELIVERY The Honorable J. Wesley Oler, Jr. Cumberland County Courthouse On. Courthousc Square Carlisle, PA 17013 June 2, 2009 RE: Sorel Forge Co. v. Calabrese & Sons, Inc. No. 2005-1827 Our File No. 11093.2 Dear Judge Oler: WILLIAM F. MARTSON JOHN B. FOWLER III DANIEL K. DEARDORFF THOMAS J. WILLIAMS* NO V. OTTO III HUBERT X. GILROY GEORGE B. FALLER JR.* *BDARD CERTIFIF DAVID A. FITZSIMONS CHRISTOPHER E. RICE JENNIFER L. SPEARS SETH T. MOSEBEY TRUDY E. FEHLINGER KATIE J. MAxWELL JACOB M. THEIS D CIVIL TRIAL SPECIALIST The Order issued in the above-referenced case scheduled argument i'or July 9, 2009, at 11:15 a.m., in Courtroom No. 1. Briefs in this matter are also due on July 3, 2009. David Fitzsimons, Esquire, and I will both be out of the office on July 9, 2009. Therefore, we are requesting that the argument and deadline for briefs be rescheduled. Opposing counsel, Marlin McCaleb, Esquire, concurs with our request for a continuance. Please note that I am out of the office July 8 through July 10, and also from July 24 through July 31, 2009. Should you have any questions or should you require a more formal request for a contirniarce, pivase contact. office. Very truly yours, S TM/mmp cc: Marlin R. McCaleb, Esquire Mr. Joseph Calabrese F:\FILES\C1ients\11093 Calabrese11093\11093.2.Iol F WILLIAMS OTTO GILROY & FAL MARTSON LAW OFFICES ,.3..&V Y. Seth T. Mosebey fy JON -3 2M INFORMATION • ADVICE • ADVOCACY sM FARLEMClients\11093 Calabrese\l1093.2am.=\tde Created: 9/20/04 0:06PM Revised: 6/10109 10:39AM 11093.11 David A. Fitzsimons, Esquire I.D. No. 41722 Seth T. Mosebey, Esquire I.D. No. 203046 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant SOREL FORGE CO., Plaintiff, V. CALABRESE & SONS, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-1827 CIVIL ACTION - LAW ANSWER TO NEW MATTER AND NOW, comes Defendant Calabrese & Sons, Inc., by and through its attorneys, MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, and files this Answer to New Matter and in support thereof avers the following: 25. Admitted in part and denied in part. It is admitted that the document attached to Plaintiffs Answer to Petition for Relief is an accurate copy of the docket maintained by the Prothonotary of Cumberland County. Any inference attributed to the docket is denied as a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 26. Admitted in part and denied in part. It is admitted that the docket of the Judgment Index maintained by the Prothonotary of Cumberland County includes a notation that "judgment note entered in the amount of $245288.59 dated March 25, 2005." After reasonable investigation, Defendant is unable to determine whether the notice listed in the docket entry was made pursuant to Pa. R.C.P. 236. Any inference relating to the docket entry is denied as a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 27. Admitted in part and denied in part. It is admitted that the parties had obligations outside of the note at issue in this matter. It is denied that Plaintiff has not received payment for the Note at issue in this matter. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to whether the judgment releases contained in Docket No. 05-1827 in the Cumberland County Court of Common Pleas relates to unrelated obligations. 28. Denied as a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 29. Denied as a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 30. Denied as a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. WHEREFORE, any execution on Defendant's money or property should be stayed indefinitely, and in the event that Hanover Associates is able to prove that a judgment has been entered by confession in this matter, the judgment should be stricken, or in the alternative, opened. MARTSON LAW OFFICES By 1??? _ Seth T. Mosebey, Esquire 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: ?Q-\ p - bck Attorneys for Defendant CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent for Martson Law Offices, hereby certify that a copy of the foregoing Answer to New Matter was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Marlin R. McCaleb, Esquire 219 East Main Street P.O. Box 230 Mechanicsburg, PA 17055 MARTSON LAW OFFICES By. M Price Ten st High Street Carlisle, PA 17013 (717) 243-3341 Dated: 6 / / 0 f D 9 BLED--40F' ICE OF THE P GTHIONOTARY 2009 JUN 10 A1; 11: 22 GEJs",??tuia ?1f 1 • SOREL FORGE CO., Plaintiff, VS. CALABRESE & SONS, INC.,: Defendant. . IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2005-1827 ORIGINAL i DEPOSITION OF: TAKEN BY: DAVID FISHER Plaintiff BEFORE: Jennifer Chance Court Reporter - Notary Publ ?i n DATE: June 9, 2009 at 10:25 a.m. i PLACE: Martson Law Offices 10 East High Street Carlisle, Pennsylvania = APPEARANCES: LAW OFFICES OF MARLIN R. McCALEB BY: MARLIN R. McCALEB, ESQ. FOR - PLAINTIFF MARTSON LAW OFFICES BY: SETH T. MOSEBEY, ESQUIRE FOR - DEFENDANT ALSO PRESENT: Joseph Calabrese t Reporting Services 3657 • 717-258-3657 • 717-258-0383f" co urtreporters4u @aol. com 2 • • F c 1C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 i DEPONENT DAVID FISHER INDEX TO TESTIMONY EXAMINATION by Mr. McCaleb by Mr. Mosebey INDEX TO EXHIBITS NO. DESCRIPTION 1 Promissory Note 2 Letter dated April 1, 2005 3 Letter dated April 15, 2005 4 Note Purchase Agreement 5 Printout from Cumberland County Prothonotary's Office 6 Settlement Statement 7 Judgment Release 8 Letter dated June 15, 2006 9 Settlement Statement 10 Judgment Release 11 Confession of Judgment 12 Order of Court 13 Judgment Release 14 Judgment Release 15 Proposed Order 16 Handwritten document 17 Document PAGE 3,61 32 PAGE 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 • E C 1C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 STIPULATION 2 It is hereby stipulated by and between the 3 respective parties that signing, sealing, certification I and filing are waived. MR. McCALEB: In the event of an objection to any question, the objection will be stated for the record, ' the witness will proceed to answer subject to the objection, and then the court can rule on the objection when the court reviews the testimony. DAVID FISHER, called as a witness, being duly sworn, was examined and testified as follows: (Plaintiff's Exhibit Nos. 1 through 17 were marked.) EXAMINATION BY MR. McCALEB: Q. Would you state your name and address for the record? A. David G. Fisher, address is 311 East Elmwood Avenue, Mechanicsburg, Pennsylvania. Q. And if you don't mind, how old are you? A. 67. Q. Did you hear the instructions that Mr. Mosebey gave to the preceding witnesses today? A. I did. Q. Do you understand those instructions? 4 • • E c 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 L A. Yes, I do. Q. And you understand that you are to consider me 3 as having given the same instructions to you, okay? E A. Correct. Q. Let me ask you about your educational background, Mr. Fisher. Are you a college graduate? A. Yes. Q. What college? A. Lehigh University. Q. When did you graduate? A. '63. Q. And what was your degree in? A. Accounting. Q. And after your graduation, did you work as an accountant? A. I got my CPA and I went into private industry. Q. You are or were certified? A. That's correct. Q. Are you still practicing accounting? A. No. Q. Are you employed? A. No. Q. There has been some mention earlier today of an entity known as Hanover Associates. Tell us what that entity is. 5 L C E 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. It's a Pennsylvania limited partnership. ' Q. And who are the principals of that partnership? s A. Myself. Q. Are you the general partner? A. I am the general partner. Q. Are there any limited partners? A. There is one group of limited partners of which I am 98 percent. Q. And what type of business does Hanover Associates do? A. Well, right now we just invest. Q. Was there a time when you were providing services to Calabrese & Sons? A. That is correct. Q. What period of time was that, Mr. Fisher? A. 2002 to 2005, July of 2005. Q. And exactly what services did you provide? A. Actually, I oversaw Chris Wampler's accounting work. Chris was the comptroller. Q. And were you an employee of Calabrese? A. No. Q. Were you an independent contractor? A. That is correct. Q. And did you work regular hours? A. No. 6 • E C J 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 L Q. Were you paid a salary? A. I was paid $35 an hour when I worked. If I 3 wanted to work, I would go in for a couple of hours. I E would play golf a lot. I just came and went when I felt like it. Q. And the services that you provided when you came in were what? Describe them for us, please. A. I would oversee Chris' work because he had a difficult time because their never was enough money in the till to pay the bills. And when he would type up checks, Joe would void a lot of the checks because he wouldn't send them out. Q. Why wouldn't he send them out? A. Because there was no money. Q. And how did you resolve that? A. Well, it was never resolved in total, because the 90 day and over accounts payable were astronomical. Q. Well, what did you do in that situation? A. Well, we had to isolate it, and we had to start prioritizing what we could pay and what we could not pay. Q. Okay. Was that your job, to make those decisions? A. Well, I would help make a decision, and all three of them would come into the office. Rick, Joey, and Joe would come in and say we have to pay this guy because 7 r? E 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 they won't ship unless they get paid first. ' Q. Suppose there wasn't any money to pay them? A. I would write the check. Q. From what account? A. From Hanover Associates. Q. In other words, you would advance the money? A. Sure. Q. And did this happen on more than one occasion? A. It happened 70 times, 80. I don't know. Q. And did you record these advances? A. They were recorded in the accounts payable. Q. As far as your compensation for your services, did you give Calabrese periodic invoices? A. Monthly. Q. Monthly invoices? A. That is correct. Q. And you were paid on a monthly basis then? A. You were paid when they had some money in the till. Q. But my point is you weren't drawing a weekly salary? A. Oh, no. No. Q. Now, there was some talk today earlier about a Sorel note which is, of course, the subject of our action, okay, and let me show you what has been marked as 8 • • c E 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Plaintiff's Exhibit 1. It just happens to be the same. (Handing documents.) A. Right. Okay. Q. Is that what has been referred to as the Sorel note? A. That is correct. Q. Okay. Who are the parties on that note? A. The parties are Hanover Associates -- Q. No, who is the creditor on there? Who owes the money in that note? A. Well, Calabrese & Sons owes the money. Q. And who do they owe it to? A. Sorel Forge was going to foreclose on them. Q. What's the principal amount involved? A. It was $245,288.59. Q. $245,000 -- A. $288.59. Q. Does the note call for the payment of interest? A. Six percent. Q. Well, actually, does it say A. It doesn't say interest, so therefore we have to give it the flat figure of six percent. Q. It just says interest, right? A. It just says interest. Q. Who holds this note now? 9 • r 1 E 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Hanover Associates. Q. And how did that come about? A. Well, Jack Powers called up from Chicago. Q. And who is he? A. Jack Powers is the collection agent for Sorel Forge, and he threatened to foreclose on Calabrese at that point in time, which would have been -- that would have been the apple on the cake. The company would have gone bankrupt right then. And through David Fitzsimmons -- of your firm -- who did the work on this and who is very intimately acquainted with the Sorel note, he arranged this deal. Q. Now, Mr. Fitzsimmons represented who? A. He represented, in essence, Calabrese & Sons. Q. Now, let me show you what has been marked as Plaintiff's Exhibit 4. (Handing documents.) What is that document? A. It is a new purchase agreement which is when I guess -- Q. Who are the parties in that? A. Well, it would be Hanover Associates. Q. And? A. Sorel Forge. They are transferring to us. Q. And what is the date? A. Well, it has here on the 5th of April. 10 • • c 1C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 Q. Of what year? A. 2005. 3 Q. Okay. Now, was there any understanding between 1 you and Sorel as to what was going to happen? A. They didn't care as long as they got their > hundred thousand. Q. What does this agreement provide? A. It transfers their total interest, the $245,000, to Hanover Associates. Q. Well, it says that that will be done, right? A. That's right. Q. This is the terms under which that is to be done, correct? A. Correct. Q. Now, I direct your attention to paragraph two. A. Okay. Q. Does that refer to judgment by confession? A. Yes. Q. What does it say about judgment by confession? A. It just says, you know, the creditor will enter judgment. Q. Sorel will enter judgment by confession, correct? A. Right. Q. Now, I direct your attention to 11 0 0 13 f c 1C 11 12 14 15 16 17 18 19 20 21 22 23 24 25 1 paragraph three. After that is done, what does 2 paragraph three say? 3 A. It says transfer is assigned to me. 4 Q. Was that an important element in this transaction? A. It was totally. ' Q. Do you know how the figure in the Sorel note, the $245,000 plus, was determined? A. It was an old standing charge going back years. Q. And you were putting up a hundred thousand -- A. I was putting up a hundred thousand, but I was getting protection for $245,000 because I was owed a lot more money, and that was going to be a cushion against my other charges. Q. Okay. Now, describe the nature of those other charges. A. Well, Joe had convinced me to buy two pieces of equipment and lease them to the company, and that cost me two hundred grand. And they were obviously delinquent on those too. So that was $3,000 a month that I wasn't getting in an equipment lease. And if you read Fitzsimmons' letter, he states perfectly that the note covers more than just the hundred thousand. Q. Let me show you what has been marked as 12 • ?J E 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 L Plaintiff's Exhibit 2. What is that? (Handing '- documents.) 3 A. Well, this is from Fitzsimmons. Q. What's the date? A. Well, the date is April 1st. Q. And who is that letter directed to? A. It says Jack Powers. Q. Okay. Turn over to the second page. Were you copied on this letter? A. Yes. Q. And does this letter set forth your understanding of this arrangement? A. That's correct. Q. That there was to be a judgment against Calabrese? A. That's correct. Q. And that was to be transferred to you? A. That's correct. Q. And if you look at the bottom of the first page, the last paragraph -- A. M-hmm. Q. -- that judgment was to secure what? A. It was to secure monies that were due me in addition to the hundred thousand. Q. Monies that you had already advanced? 13 • ?J 7 9 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Monies that had already been expended going back to '03 and '04. Q. Let me show you Plaintiff's Exhibit Number 3, and what is that? (Handing documents.) A. Well, this is I guess a release to Jack Powers of the Assignment of Judgment. Q. What is attached to that letter? A. Well, the Assignment of Judgment. Q. Yes. That's the assignment from Sorel to you of that judgment? A. That's correct. Q. And were you expecting at the time that you ultimately would be repaid for the amount of that note? A. Why would I make it? Q. At that time, was there any understanding about any kind of a payment plan? A. No. Q. Have you to this date been paid anything on that note? A. Zero. Q. Let me show you what has been marked as Plaintiff's Exhibit 16, and I apologize for jumping around in my numbers, but I have changed the sequence several times. What is Exhibit 16? (Handing documents.) A. It shows my quick calculation of what is now 14 • • L E E 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 due me as of June 30th of this year, which would be $318,940.12. Q. $318,940.12? A. That's correct. Q. That's what is owed to you on this note as of today? A. As of June 30th. Q. As of June 30th. Excuse me. So if Mr. Calabrese were to write you a check today, we would discount that a little bit, right? A. That's correct. Q. Now, have you received any other notes for monies that you have advanced to Calabrese? A. Do you mean other than the McNees note? Q. Other than the Sorel note. A. Well, I had the McNees note also. Q. Let me show you what has been marked as Plaintiff's Exhibit 11, and I will simply state for the record that this is a certified copy of the Confession of Judgment, the Complaint for Confession of Judgment, and attached to that complaint is a note. I'm going to show you that note. What is that note? (Handing documents.) A. This is a note for -- from Calabrese & Sons to Hanover Associates of '04. Q. Is that what you were referring to when you 15 • • C E 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 said the McNees note? A. Yes. Q. Why do you refer to it as the McNees note? A. Because they did it. They did the work on it. Q. The McNees law firm? A. That is correct. Q. How did this note come about? A. It came about because we were sitting in the Commerce Bank lending office, and I was starting to get squeamish because Commerce was squeezing the hell out of Joe. Q. When you said we, who is we? A. Joe and I were sitting there, and you could tell by -- the officers were not exactly enthusiastic about the way things were going. Q. Did Commerce hold any obligations of Calabrese? A. They owned -- they had a second position behind M&T on the building, and they also had notes against Mrs. Calabrese. Q. Well, you said you began to get squeamish; why? A. Well, because they wanted paid off. They wanted out. Q. Commerce wanted paid off? A. They wanted out. Q. Now, how did that bring about the note that we 16 0 E 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 were just talking about? ' A. I looked and I said I have over $300,000 worth of open lines here, so I wanted protection. And I filed this, and Mrs. Calabrese was seven days later, and they were -- Rhodes & Sine (phonetic) was pissed off that I had filed right before them. Q. Now, what's the principal amount of this note? A. Well, it was 323 at the time, and it just kept adding up because it was interest plus five points. Q. Now, when you say the figure that you just mentioned, was that the total amount that you had put in? A. That's the total still outstanding. Q. Still outstanding at that point? A. At that point in time. Q. Did you have any judgments to protect that obligation? A. That's why we filed it, yes. Q. Now, let me direct your attention to paragraph 15. That refers to a prior note. A. Yes. Q. A note dated October 20, 2003. A. That was for $110,000, that's correct. Q. $110,000. Okay. You had put in that amount of money? A. At that point. That's '03. 17 E 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. That didn't have anything to do with the Sorel '. note, did it? A. No. Q. And had you been repaid any of that $110,000? A. Some of the money would get back to me, but the big money, like for Ellwood City where I had to put a hundred, $150,000 every month to pre-pay so we would get the water rig spears in or they wouldn't ship them, that's part of this debt. Q. And again, referring to paragraph 15, there is another figure in there; what does that represent? A. 15? MR. MOSEBEY: What paragraph, to make sure what paragraph I am on as well? I am seeing paragraph 18, and I want to make sure I am looking -- MR. McCALEB: 18. Sorry. I shouldn't go from memory. I ought to look at the document itself. BY MR. McCALEB: Q. Paragraph 18, okay, I'm sorry, refers to that note, that October 20, 2003 note, correct? A. That could be correct. Q. And there is another figure there; what does that represent? A. That means that we surpassed $110,000. Q. There is another figure there, the figure of 18 • r] F i 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 L $213,476.95. A. I assume that's what was outstanding as an open line on accounts payable. Q. Money that you had advanced out? A. Right. Q. But in fact it says right in there that the net advances to the date of the note are that amount, so everyone was in agreement then about the outstanding balance? A. M-hmm. Q. Now, you mentioned before about the rate of interest. What was the rate of interest on this note? A. Prime plus five. Q. Let me go back to paragraph one, turn back to paragraph one. A. (Complying.) Q. Okay? A. Okay. Q. I'm going to ask you again what was the rate of interest? A. It says prime plus two. Q. And how was the interest to be paid? A. Well, paid monthly, but they went into default. So the default rate is the rate we used, which is paragraph C. 19 r? E i 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 L Q. And that rate is? A. Five. 3 Q. Prime plus five? A. Yeah. Q. So if the interest wasn't paid on time, then the rate of interest increased? A. That's correct. They were in default the very first month. Q. Did they make any of the regular interest payments? A. Never. They never made a payment. Q. Did you ever receive any payments on account of that note? A. I received three payments on that note. Q. Okay. When was the first payment made? A. The first payment was made when they sold the building to Bill Rothman (phonetic). Q. The building at where? A. Calabrese & Sons. Q. And what is the address there? A. I don't know. Brandy Lane. Q. On Brandy Lane. Okay. And do you remember when that was? A. Well, it was June of -- it had to be probably June of '06, maybe. Yeah, it had to be June of '06. 20 E C J 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 L Q. Okay. Let me show you what has been marked as ? Plaintiff's Exhibit 6. (Handing documents.) 3 A. That's just -- is that the settlement sheets? E Yeah. Q. What's the date on the settlement sheet? A. June 15th. Q. Okay. Now, let me turn to the third page. A. Okay. Q. Do you see the figure of $250,000 to be paid to Hanover Associates? A. Right above the $80,000 paid to -- Q. Just answer my question. It says judgment payoff, right? A. That's correct. Q. Now, at that point, how many judgments did you have against the real estate? A. Well, at that point I would have had two. Q. Okay. And they would have been what? A. They would have been the McNees note and the Sorel note. Q. Now, does this settlement sheet say anything about how that 250 was to be allocated between the two obligations? A. Allocated against the McNees note. Q. Does it say that? 21 ?J 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. No, it doesn't say that, but -- otherwise they couldn't get a rel ease on the building. Q. Just an swer my question. Let me show you what has been marked as Plaintiff's Exhibit 7. (Handing documents .) A. Okay. Q. Did you sign that at the bottom of the first page? A. That's my signature. Q. And what's the date? A. It says the 27th day of June 2006. Q. And what is this? A. Well, it's a judgment in favor of the plaintiff. That's what it says up here. (Indicating.) Q. Indicating -- A. Judgment Release. Q. Is this a release of one of the judgments? A. I guess. I don't know. Q. Look in the first paragraph. It refers to a judgment on April 7th. A. This is for the building. Q. This is for the building, okay, and the April 7, 2005 judgment, is that the Sorel note? A. What date is that? Q. April 7, 2005. 22 • • f c 1C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 A. Is the -- yes, that's the Sorel note. 2 Q. Now, look at the fourth paragraph. 3 A. Okay. 4 Q. And it says that in consideration of the defendant partially satisfying the above-referenced judgment; in fact, was that your understanding, that this was to be paid in part from that 250? A. No. Q. Prior to this settlement, had there been a dispute about payment of money to you? A. Prior to -- Q. Prior to the settlement on the sale of lot number two, had there been a dispute over payment of money to you? A. Well, yes, because they hadn't made any payments in a damn year. Q. Let me show you what has been marked as Plaintiff's Exhibit 8. (Handing documents.) Now, just for the benefit of the record, that's a copy of the letter to David Fitzsimmons, right, from Robert Chernicoff; who is Mr. Chernicoff? A. He represented me. Q. Does this set forth an agreement for the disposition of the proceeds of that sale? A. I guess. 23 • c 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 L Q. Look at paragraph one. A. Okay. 3 Q. And that says you are to receive $250,000? ! A. That's right. Q. Does it say on what obligation that is for? A. It doesn't say anything. Q. Okay. How did you apply the $250,000? A. Against the McNees note. Q. Well, okay, I will come back to that. Let me show you what has been marked as Plaintiff's Exhibit Number 17. Is that something that you prepared? (Handing documents.) A. Yes. Q. And would you explain to us what that represents? A. Well, they have already had copies of this from a year ago. Q. Just answer my question. A. This is just a calculation of the payments that have come in from when the note was originally done August of '04 up to the last payment of $220,000 I got this year. Q. Okay. Let's start at the top on line one, okay? And there is a figure in column one. What does that figure represent? A. That's the original -- that's the balance of 24 • f c 1C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 the McNees note when it was filed. 2 Q. Okay. And what is that amount? 3 A. $323,569.10. 4 Q. And then going across, go through there and D tell us what the various columns mean. A. Well, you have your interest rate, default rate column, the number of days, and the interest calculations, then the late payment fee, the totals coming out, and it just keeps adding up. Q. All right. Now, if you go down through lines one to 23 -- A. Okay. Q. In fact, go down to line 24. And over in column seven, what does that figure represent? A. That's the total interest and late fee charges up to that point. Q. Okay. And out of the 250, how much went against the principal balance? A. $129, 964.36. Q. And the rest of it went to what? A. Legal fees and interest and late payment fees. Q. So that after that payment, what was the principal balance left? A. Well, I don't have a calculator here. It was -- $193,604.74 was the balance. ?S 0 f c 1C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 Q. Okay. And when did you receive the next 2 payment? 3 A. I received $50,000 when they went to sell the 4 second tract of land. They split the land as part of the D building deal, and I got that payment September 14th of 5 '07. i Q. Let me go back to Plaintiff's Exhibit Number 8 and direct your attention to paragraph five at the top of the first page. A. Okay. Q. Now, what does that provide for? A. It -- Well, it provides, of course -- it provided for me to receive $5,000 a month. Q. Starting when? A. In July of '06. Q. Okay. On account of principal and interest? A. Right. Q. Did you receive any of those monthly payments? A. Zero. Q. Now, let me show you what has been marked as Plaintiff's Exhibit Number 9. (Handing documents.) A. Okay. Q. And is that the settlement sheet for the second sale? A. By the guys out of Elizabethtown so -- 26 • f c 1C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 Q. Well, what's the date of it? A. 09/5/07. 3 Q. How much was paid to you at the time of that I settlemen t? A. $50,000. Q. Okay. A. And the rest was put into escrow. Q. After that $50,000 was applied, what was the remaining principal balance, and again referring to Plaintiff's Exhibit 17? Q. The remaining balance was still the $193,604.74. Q. So none of that went against principal? A. No. Q. Okay. Let me show you what has been marked as Plaintiff' s Exhibit Number 12, and I will just simply state for the record that it is an order of the court, is it not? (Handing documents.) A. Okay. Q. Order of Court, and it is dated August 29, 2007? A. Yes. Q. And does this provide for the disposition of the settlement proceeds from that sale? A. Well, it pays -- it barely gave me $50,000, and 27 • r--1 I-J E C 1C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 the rest went into escrow. 2 Q. Into escrow, okay. 3 A. And then it took us another 90 days -- 180 days 4 or so to get the rest of it. Q. And was there any dispute about how that escrow 5 was to be paid? 7 A. No. Q. Well, why wasn't it immediately paid? A. Because a local law firm kept contesting it. Every 90 days they would file a motion. Q. So there was a dispute? A. In front of Bayley on the 89th day, and they got another 90-day rule. Q. So there was a dispute? Just answer my question, please. A. Yes. Q. I show you what has been marked as Plaintiff's Exhibit Number 15. Is that another court order? (Handing documents. ) A. That's the final court order on disposition between Q. And it is dated? A. The 3rd of April, 2008. Q. And look at the first paragraph; does that provide for $220,000 to be paid to you? 1) R • 1( 11 lc 13 14 15 16 17 18 19 20 21 22 23 24 25 1 A. That's correct. 2 Q. Does it say on account of what judgment that is 3 to be paid? 4 A. No. 5 Q. The order refers to a stipulation; do you see 6 that in the introductory paragraph? 7 A. M-hmm. 3 Q. Is that stipulation attached? A. I assume it is yes. Q. Okay. Let me direct your attention to paragraph six of that stipulation. It says that that payment of $220,000 in no way affects the Sorel note, correct? A. That is correct. Q. So how did you apply that $220,000? A. Against the original note, because there still was a balance due. Q. Did that pay off that balance? A. No. Q. As of today, is there a balance still owed to you on that note? A. There should be -- I released the note, and threw in -- as this gentleman can attest, since he was in the hallway -- Q. Just answer my question, please. Is there a 9a 0 • f c 1C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 balance owed to you on that note? 2 A. Yes. 3 Q. What is that balance? 4 A. Not quite $20,000. D Q. And that is shown on Plaintiff's Exhibit 5 Number 17? 7 A. Right. Q. At the end of column number one on the second page? A. Right. Q. There was testimony earlier today about an entity by the name of Brandy Lane Enterprises? A. Correct. Q. What was that entity supposed to do? A. It was going to provide a clean start for Calabrese. Q. And who was to be involved in that entity? A. The entity was going to be 50 percent owned by Rick Riggleman and Joey Calabrese, 50-50. Q. Were you to have any ownership interest in that? A. No. It was set up that Virginia and I would have preferred shares payable at five percent, and they would take us out after five years. Q. Virginia is who? 30 • 0 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Mrs. Calabrese. We had to -- we could not bid on contracts with a negative net worth of a million dollars. Q. And who is Virginia Calabrese? A. That's Joe's mother. Q. The second person to testify, his mother? A. His mother. His grandmother. (Indicating.) Q. I want to distinguish between Joe and Joey. You are referring to Joe's mother; is that right? A. That's correct. She was owed $500,000 at the time, I think. Q. Now, previous testimony indicated that Brandy Lane Enterprises had been incorporated? A. I didn't know that. Q. Did that ever get off the ground? A. It didn't, because both Rick Riggleman and Joey Calabrese flunked their credit checks. Q. Were they able to do anything to overcome that? A. No. Members First was lined up to make the deal, but once the credit checks came back, it was done. It was a dead deal. Q. What about their credit caused a problem? A. I don't know. All I know is -- Q. Only if you know. A. I don't know because that's -- Members First 31 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 said they didn't pass the credit checks. Q. I just remembered something. I'm going to switch subjects and go back to what's been marked as Plaintiff's Exhibit 4, the Note Purchase Agreement. A. Right. Q. Okay. If you refer to the last page, there is a signature by or on behalf of Sorel Forge, right? A. Yeah. Q. There is a place for a signature by Hanover Associates but it doesn't appear to be signed, correct? A. It doesn't. Q. Did you in fact sign that agreement? A. I'm sure I did somewhere. Q. So somewhere there is an original with your signature? A. It is probably here in this law office. Q. Okay. But as far as you are concerned, everybody that was supposed to sign it did sign it? A. Yeah. MR. McCALEB: Here is Plaintiff's Exhibit Number 5. And for the record, I'm just simply going to state that it's a certified copy of the docket entries on the Sorel proceeding. Just indulge me one moment. That's all the questions I have. MR. MOSEBEY: May we have a brief break here? 32 • 7 L 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. McCALEB: Sure. (Short recess.) EXAMINATION BY MR. MOSEBEY: Q. Mr. Fisher, before I start asking you questions, are you currently on any medications that would affect your ability to testify truthfully? A. No. Q. Are you on any medications at all for any health conditions? A. Sure. Q. Can you please tell me what those are? A. They are for cirrhosis of the liver, heart, things like that. Q. Are you able to tell me the names of the medications? A. Well, I can give you a list. Q. Okay. I will ask your counsel to submit that list to me, if that's agreeable. A. It changes constantly between my three doctors. Q. I am just concerned about what's here today, that's all. MR. McCALEB: What you are taking today, you will give me a list of that? THE WITNESS: I have it in my wallet. 33 • L E 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. MOSEBEY: That's fine. We don't have to do ' it right now. We can make a copy, after even. MR. McCALEB: Yeah, just don't forget it. BY MR. MOSEBEY: Q. First, Mr. Fisher, I would like to direct your attention to Plaintiff's Exhibit 8, and I understand it may take some time to sort through the exhibits at times. MR. McCALEB: I have them in order. (Handing documents.) THE WITNESS: Okay. BY MR. MOSEBEY: Q. Looking at paragraph four of this, this is the agreement that was written by I believe Bob Chernicoff, who was representing you at the time. Paragraph four states that the balance owed to you shall be determined by process whereby the parties will agree on an independent accountant who will review the figures with Mr. Fisher, Mr. Calabrese, and counsel. Isn't it true that the parties, there was delay in selecting an independent accountant? A. There was no delay. Mr. Fitzsimmons of your firm said Jim whatchamacallit is going to do it, and then he didn't do it, and Calabrese never selected an accountant. Q. When did you select an accountant? 34 1 L 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. CGA did it. Omara did it. Q. Who is CGA? A. The law firm that represented me in the last case. You were there. You should know. MR. McCALEB: Just answer his question, okay? BY MR. MOSEBEY: Q. And who was your attorney at CGA at the time? A. Christian Duff. Q. And who did they select for you? A. Jim Omara (phonetic). Q. And do you know when that was done? A. No. It was leading up to the -- it was leading up to the hearing, which I would have to say was after September 7th and prior to Bayley's decision of April 3rd. Q. And what year are we talking about when you say those dates? A. Well, the 7th I got $50,000, and then Omara probably came in right after that and did it. Q. And what year are we talking about with those dates? A. I would say it was -- you have copies of it. Q. But you believe it is 2007? A. I think it's 2007. MR. McCALEB: (Indicating.) THE WITNESS: Yeah, okay, it could be somewhere 35 • • E i 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 L around here, yeah. ' BY MR. MOSEBEY: 3 Q. So you through your attorneys did not select an independent accountant until after December 31, 2006? A. That's probably right, because I changed Bob Chernicoff in July of '06, and then I got CGA. Q. I want to direct your attention to Plaintiff's Exhibit 4. It's the Note Purchase Agreement. Who are the parties to the Note Purchase Agreement? A. Is this between Sorel and Hanover? Yeah, I guess it is. Yes. I'm the purchaser. Q. Sorel is also known as creditor pursuant to this Note Purchase Agreement, correct? A. Yes. Q. And Calabrese & Sons, Incorporated is also known as debtor pursuant to the Note Purchase Agreement, right? A. That's correct. Q. I want to direct your attention to paragraph two, and that says within five days following creditors' receipt of the note, again creditor being Sorel Forge, creditor, again Sorel Forge, shall enter judgment by confession against Calabrese; is that correct? A. That's what it says. Q. So Sorel Forge was to enter confession of 36 • • E c 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 L judgment against Calabrese, not Martson Law Offices or any of their attorneys, correct? 3 MR. McCALEB: If you know. E THE WITNESS: I don't know. It was handled by David Fitzsimmons of your firm. BY MR. MOSEBEY: Q. But he didn't represent Sorel Forge, did he? A. He represented Calabrese to get this thing wrapped up. Q. So he did represent Sorel Forge? A. Better than having somebody in Chicago. MR. McCALEB: Only if you know the answer. BY MR. MOSEBEY: Q. You believe that Mr. Fitzsimmons represented Sorel Forge? A. I believe he handled the deal. Q. Do you know whether Mr. Fitzsimmons represented Sorel Forge? A. No. Q. You don't know. I want to direct your attention to Plaintiff's Exhibit 2 and the last paragraph on the first page. It says Hanover will have a judgment in its favor securing the $100,000 paid to Sorel, correct? A. M-hmm. Q. And additional funds utilized in the Calabrese 37 ID • L 4 E E 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 workout, correct? A. M-hmm. Q. Those additional funds I believe you testified earlier related to two machine leases, correct? A. No. The machine leases were already in existence. Q. They did not relate to the Sorel note at all? A. No. Q. They did not relate to the $245,000 plus to Sorel? A. That's correct. Q. And if that was your testimony before, you would change that now? A. The machines were purchased in '03, because they bid on contracts but they didn't have machines to finish the job, which is difficult to do. Q. And I just want to clarify, when I was listening to your deposition earlier it was my understanding that the machines were included with the $245,000 plus for Sorel, and I want to clarify that that is not your testimony; is that correct? A. No, I don't believe it would be, because if you go back and look at the individual invoices off the accounts payable, they are identified separately. They are not like when I would write a check 38 u11 • 1 L 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 for $54,000 or $100,000 to pay for something that is coming in the door, the trucks at the door. Q. So the machines are not included in the Sorel amount? A. No. I ate those. Q. So the only definitive amount we have as memorialized in the April 1, 2005 correspondence marked as Plaintiff's Exhibit 2 is $100,000, correct? A. Say that to me again. Q. And I might rephrase this differently and try to make it shorter. A. Well, yeah, because it is bullshit, but go ahead. Say it to me again. MR. MOSEBEY: Mr. McCaleb, if possible, I hope you can control your client a little in terms of off-the-cuff responses. MR. McCALEB: Just answer his questions, David. THE WITNESS: Okay. MR. McCALEB: Don't argue with him. BY MR. MOSEBEY: Q. Looking at the April 1, 2005 correspondence, which is marked as Plaintiff's Exhibit 2, the only amount certain stated in there as being owed to Hanover is $100,000, correct? A. In regard to the Sorel note. 3A • • F c 1C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 Q- Yes. 2 A. But not to the outstanding balances due Hanover 3 at the ti me. 4 Q. So there were other amounts due to Hanover 5 unrelated to the Sorel note? 5 A. And that's why Mr. Fitzsimmons says that. ' Q. So those additional amounts did not relate to the Sorel note, correct? A. Well, they were covered by the Sorel note. They were additional protection the Sorel note gave me so that I would eventually get my money. Q. But there is no amount stated in this correspondence, correct? A. That's correct. Q. Only the $100,000 is in this correspondence , correct? A. That's correct. And the reference to additional funds. Q. Right. If I could direct your attention to Plaintiff's Exhibit 5, this is a copy of docket entries, correct, a copy of docket entries from the Prothonotar ' y s Office of Cumberland County, correct? A. This is what we got. MR. McCALEB: Yes? THE WITNESS: Yes. 40 F c 1C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 BY MR. MOSEBEY: 2 Q. And if you look at the top of the page, this 3 relates to the Sorel Forge matter, correct? 4 A. Okay. D Q. And this is the same matter with which we were > dealing today, correct? A. That's correct. Q. If you look just to the left, and Marlin, maybe you will be able to assist him and show him the docket number, it is just to the left of the caption. The docket number is 2005-10827, correct? A. That's what it says. Q. That's the same docket number that is listed on Plaintiff's Exhibit 1, correct? MR. McCALEB: (Indicating.) THE WITNESS: Yes. BY MR. MOSEBEY: Q. And that's the same docket number referenced on Plaintiff's Exhibit 7, correct? MR. McCALEB: (Indicating.) THE WITNESS: Correct. BY MR. MOSEBEY: Q. And in the fourth whereas paragraph on Plaintiff's Exhibit 7, that states that the defendant is partially satisfying the above-referenced judgment, 41 f c 1C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 correct? 2 A. Yes, that's what it says. Which one is two? 3 Which lot is two? 4 MR. McCALEB: It doesn't matter. D THE WITNESS: Okay. i BY MR. MOSEBEY: 7 Q. That's what it says? A. M-hmm. Q. And that references the docket number that is the Sorel Forge matter, correct? A. Correct. Q. And is that your signature under the Hanover Associates line? A. That is correct. Q. So you agreed to this judgment release? A. M-hmm, yes. Q. I direct your attention to Plaintiff's Exhibit 11 . I believe this was referred to as the McNees note. It is actually a packet of information containi ng a Confession of Judgment, a complaint, and the line of credit Promissory Note, $300,000. The docket numbe r on this is 04- 3940, correct? (Handing documents.) A. Correct. Q. The spreadsheet, I call it a spreadsheet the , handwritten entries you made on Plaintiff's Exhibit 42 • r? i c 1C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 Number 17, do you have those handy? 2 A. Yes. 3 Q. And those handwritten entries relate to the I McNees note, correct? > A. Correct. Q. Plaintiff's Exhibit 12, that is the same docket number relating to the McNees note, correct? A. Correct. Q. Plaintiff's Exhibit Number 15, this is a proposed order that appears to be signed by a judge, correct? A. That's Bayley's signature, right? Yes. Q. That is the same docket number as the McNees note, correct? A. Correct. Q. Paragraph A of that proposed order, which was then signed by the judge, states that the payment of $220,000 is in satisfaction of the McNees note and judgment, correct? A. Yes. Q. So essentially there is no outstanding balance on that note, correct? A. In essence, that would be correct. If you remember, I had to throw in $100,000. Q. So there is no longer an action docketed at 43 • • z E 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 number 04-3940? ' MR. McCALEB: If you know. THE WITNESS: Well, I don't know. That's what I pay attorneys for. MR. McCALEB: Off the record. (Off-the-record discussion.) BY MR. MOSEBEY: Q. To your knowledge, you are no longer able to proceed on the McNees note, correct? A. As far as I know, that is correct. Q. I think I'm done with the exhibits. When did you stop practicing as a CPA? A. As soon as I got my ticket. Q. What ticket? A. In the old days, you had to work two years for a CPA firm to take the test. As soon as I passed the test, I quit and went into private industry. Q. So you quit being a CPA once you passed the CPA exam? A. Sure. You made more money in private industry. Q. You stated earlier that Hanover Associates is a Pennsylvania limited partnership, correct? A. Correct. Q. And you are the sole general partner? A. Correct. 44 • I0 • 1 L 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. You own 90 percent -- and my terminology may be a little askew here. Forgive me. You are basically 98 percent of the limited partner as well? A. Close. Q. Who are the remaining limited partners? A. They are part of a partnership of Realty Lessors, LLC. Q. What was the name of that again? A. Realty Lessors. Q. Can you spell that, and this is mainly for the benefit of the court reporter? A. Realty, R-E-A-L-T-Y, Lessors, L-E-S-S-O-R-S. Q. Do you have a role with Realty Lessors? A. No. Q. When you worked for Calabrese in 2002 through 2005, you oversaw Chris Wampler's accounting work, correct? A. Some of Chris' work, not all of it, no. I wasn't there that much. Q. Did you ever represent to anyone, either within or outside of Calabrese & Sons, Incorporated, that you were the chief financial officer of Calabrese & Sons, Incorporated? A. No. Q. You have never put that in writing anywhere? 45 to • 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Not that I signed for, no. When David Tierney (phonetic) was trying to sell the business for Joe, he may have mentioned that. Q. Why do you believe he may have mentioned it? A. Well, he was trying to spruce it up so he could sell it. Q. But to your knowledge, you never approved of anyone listing you or naming you as the chief financial officer? A. It would be impossible, because if I was chief financial officer, I would be able to sign checks. Q. And you never signed checks? A. Only two people were allowed to sign checks, Joe and Joey. Q. Do you have any written agreements with anyone from Calabrese & Sons, Incorporated relating to the repayment of advances that Hanover Associates made to Calabrese & Sons, Incorporated? A. Do I have any agreements? Q. Maybe if I break this down a little bit it will be easier. Hanover Associates advanced monies to Calabrese & Sons, correct? A. Correct. Q. Do you have written agreements for the repayment of those advances? 46 lie 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. No. If they couldn't make the payroll -- MR. McCALEB: You answered the question. BY MR. MOSEBEY: Q. If they could not make the payroll, did you provide Calabrese & Sons with money? A. Yes. Q. And you don't have an agreement for the repayment of those monies, correct? A. That is correct. Q. The lease equipment, the equipment leases that you referenced for two machines, those matters have been satisfied, correct? A. Not to my satisfaction, but they have been resolved by an agreement, that's correct. Q. Have they been legally satisfied even if not to your satisfaction? A. They have, yes. They were removed from th- property. Q. And you agreed to those satisfactions, correct? A. I had to get rid of them. Q. Did you agree to those satisfactions? A. Yes. Q. With regard to the McNees note that we previously looked at, do you know who at McNees, Wallace & Nurick prepared the note? 47 • E 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 - A. It may be on -- I would have to check the note, '. but I think it may have been Jim DeAngelo. Somebody in the litigation department. THE WITNESS: Was it DeAngelo? BY MR. MOSEBEY: Q. If you would like to reference the note, your attorney will pull it out for you. MR. McCALEB: I don't think the note indicates. THE WITNESS: It is one of the guys in the litigation department. BY MR. MOSEBEY: Q. Do you have a relationship with any of the attorneys at McNees, Wallace & Nurick? A. Yes. Q. A business relationship? A. No. Q. From 2002 through 2005, did you have a business relationship -- A. Are you relating to work or what are you relating to? Q. Outside of the representation of you as a client, did any attorney at McNees, Wallace & Nurick from 2002 through 2006 have a business relationship with you or Hanover Associates? A. Yes. 48 • L L E 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Who was that? A. Rich Stevenson (phonetic). Q. And did you use McNees, Wallace & Nurick as your attorneys during that time frame? MR. McCALEB: Excuse me. You meaning Mr. Fisher, or you meaning Hanover Associates? THE WITNESS: Other than -- MR. McCALEB: Let him answer my question. MR. MOSEBEY: Mr. Fisher individually. MR. McCALEB: Okay. THE WITNESS: Maybe on the wills. BY MR. MOSEBEY: Q. Did any attorney from McNees, Wallace & Nurick represent Hanover Associates from 2002 through 2006? A. Other than the note, no. Q. So there would be limited payments to McNees, Wallace & Nurick in records from 2002 through 2006? A. Very limited. Q. Can you give me a number? A. Probably under $2,000. Q. Under $2,000, correct? A. It is minimal. It would be -- it's what was spent on getting that note ready and having to go running up here to the courthouse. Q. Your ballpark estimate, and I won't hold you to 49 • E E c 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 this, would be under $5,000? A. Oh, definitely. 3 Q. After meeting with Commerce Bank, I believe I this goes to -- does it relate to the Brandy enterprises that we were talking about? A. Brandy Lane Enterprises. Q. And what I want to reference here is your conversation with your attorney previously about Commerce not being enthusiastic. A. No, this was earlier on with Commerce, not being -- Rory Latrivi (phonetic) hated Joe's guts. Q. What does this transaction relate to that you were at Commerce Bank for? A. We were there like every other month. Q. So this was regular financing for Calabrese & Sons? A. Well, it wasn't regular financing. It was what was due the bank. There was no new money coming across the table. Q. With regard to Brandy Lane Enterprises, this was to be a clean start for Calabrese & Sons, Inc. essentially? A. It would provide a cleaner balance sheet so that, as Joe said, we could bid on more of the bigger contracts coming out of Philadelphia. But since we had 50 • • z F 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 a -- his balance sheet showed a negative net worth of one '. to two million, they wouldn't give him the contracts 4 because they said they can't trust him to do the work. Q. So this was a way for Calabrese to get a fresh start with a new name? A. With a new name, new owners, and eventually they would set up an ESOP for the rest of the employees so they could actually participate in the ownership of the business. Q. And who were the new owners to be? A. The new owners were Joey and Rick, okay, to start out 50-50. Q. Would you have had any involvement in the operation of Brandy Lane Enterprises? A. Well, I would have proceeded to do just what I was doing initially. I wasn't going to get actively involved, I will tell you that. Q. Which was essentially overseeing the bookkeeping? A. And making sure that Virginia and I got our money back after five years. Q. This was for five years, and then you and Virginia get out? A. We only had preferred stock at five percent. They cleaned up the sheet so we actually had a positive 51 • c 1C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 net worth. 2 Q. You anticipated your involvement would last 3 approximately five years? 4 A. At the most. Q. And during that time, you would keep the books? A. No. Why would I keep the books? You have to have somebody full time to keep the books. Q. You would oversee the accounting? A. Only to a degree. I didn't care about the day-to-day accounting. Q. Brandy Lane Enterprises was incorporated, wasn't it? A. I don't know. I am surprised -- they said it was. It shocks me, because as soon as they flunked their credit test, checks, I thought that was dead ended. Q. You were aware that work for incorporating Brandy Lane Enterprises was done by Lisa Coyne? A. M-hmm. Q. And you in fact worked to revise some of those corporate documents, didn't you? A. Not that I'm aware of. Q. You didn't give any input on the bylaws? A. I don't think I -- you know, if I did, it was -- first of all, Lisa Coyne wouldn't have been my choice. I had no choice, you know what I mean? I just 52 • f c 1C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 was sitting on the sidelines waiting for this thing to 2 happen. 3 Q. So you didn't do any revisions to the bylaws? 4 A. If I did, it was strictly to protect the D preferred stockholders, the two of us, because taking us > off from preferred stockholders to debt holders, all of a sudden you swing a million dollars of equity down to a million dollars worth of debt. Q. So it's possible you may have reviewed the bylaws to protect your interest? A. Well, I would say probably because I would have been giving up my notes. Q. When, as you stated in your testimony, Rick and Joey flunked their credit checks -- A. That's what I was told. Q. -- was there any other option for continuing with this project? A. I couldn't see it. I mean -- of course Joe and Joey both filed for personal bankruptcy, which is not exactly, you know -- Q. Was this with Members First Credit Union? A. I believe it was. I think it was working through one of your guys here. Q. And at Members First, they wanted you to sign a personal guarantee, didn't they? s'? 0 r C 1C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 A. I wouldn't have done it. 2 Q. Did they want you to sign a personal guarantee? 3 A. I don't -- I actually can't remember, but if I 4 don't own a business, why would I give a personal D guarantee? Q. Isn't that the reason that Brandy Lane Enterprises never got on the ground, because you wouldn't sign a personal guarantee? A. Not that I'm aware of. I was told that the two people we were putting up both did not pass the credit checks. As to a personal guarantee, there would be no way in hell I would ever give a personal guarantee if I didn't own the business. And I don't mean ten percent of the business, I mean controlling the business. Q. Might it have been possible that you would have signed a personal guarantee if you were guaranteed ownership, total ownership, of Brandy Lane Enterprises? A. I wouldn't have signed -- at my age, no. I mean, you are talking my God, I was 64, 65 at the time. Hell, I haven't worked full-time since 173. Q. So you have had some fairly successful investment projects in the past? A. That's correct. Q. About how many projects have you invested in as a general partner? 54 • 7 L 4 E 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. As a general or limited -- just three general. Q. What were those projects? A. Well, Capital Outdoor Advertising, Cramer Zeigler Tire, and that's about it, those two. Q. Aside from your degree from Lehigh University in 1963, do you have any grad school credits? A. No. Q. No grad school degrees? A. No. Q. No professional degrees? A. Other than I passed my CPA test. Q. And you didn't take any continuing education for your CPA? A. If you are not going to practice it, why would you take it? Q. Can you answer the question with an answer instead of a question? A. No. Q. When was Hanover Associates created? A. Let's see, maybe 1978. Q. Are you the sole general partner and sole officer? A. Yes. Q. This is going to seem a lot like backtracking given what we have gone through. How long have you known 55 r? C r ? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Joe Calabrese? A. Well, Joe said from the '50s, which is total bullshit. MR. McCALEB: Hey, just -- THE WITNESS: Okay. I was a drinking buddy of his father's in the '70s. Mike and I would sit around at a local bar and drink and discuss our stock positions. Joe, probably in the '90s, I got started getting to know him, again in a bar relationship. BY MR. MOSEBEY: Q. So you came to know Joe through -- A. Having a drink. Q. Local restaurants? A. Not restaurants. Sitting there having a drink, cocktail in the afternoon. Q. When did you become familiar with Calabrese & Sons, Incorporated? A. Well, his father would talk to me about it in the '70s. Q. What is your understanding of what Calabrese & Sons does? A. They make -- mostly work 99 percent for the government on parts. Q. At what point did you enter into conversations 56 C7 • 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 with employees of Calabrese to create a successor entity? A. I guess we started maybe in April. Q. Of what year? A. Maybe '07. Q. 2007? A. I think -- maybe -- April of 105, excuse me. Excuse me. It had to be April of '05. Q. At what point did you become involved with Calabrese & Sons as whatever degree of overseeing financial activity? A. I would say sometime in '02. Joe knew I was bored out of my mind and said do you want to -- why don't I come back there and use the board room and set up and I can handle my personal business back there. And then I got involved with the business. Joe and his comptroller never saw eye to eye. Q. What was your goal with creating Brandy Lane Enterprises? A. Clean balance sheet. Q. Getting back to the employment with Calabrese, when you set up in ballpark 2002 back in the board room, how would you describe your position with Calabrese & Sons? A. Advisor maybe. Q. Do you still have financial data from Calabrese 57 C, • 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 & Sons? A. I haven't seen anything from Calabrese & Sons since '05. Q. When you were with Calabrese & Sons, Incorporated, how did you record the financial data? Was it electronically or on paper? A. Chris did all of the electronic work. He is the guy that did all the printouts and everything like that. He wrote all of the checks and just, you know -- a two-part check. Q. Did you keep any paper copies of financial data? A. Paper copies of their financial data? Q. Yes. A. No. Q. Did you have control of Calabrese's books? A. No. Chris did all of that. Q. Did you ever tell any employees of Calabrese & Sons that they didn't need to check with Joe on expenditures because you were running the company? A. Absolutely not. Q. Were you given keys to Calabrese & Sons' building? A. No -- I don't think so. If I did, I wouldn't know the code to get in. Hell, I don't know the code of 58 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 my own building. Q. But you certainly never returned any keys to Calabrese & Sons, correct? A. I don't think I ever had any keys. Q. So if you didn't have any, you would have no reason to return any either, correct? A. I don't -- I can't remember if I had keys or not, to tell you the truth, but I know if I had -- I didn't know what the security code is. Q. Were there any records to Calabrese & Sons that you did not have access to during your time there? A. I may have had access to them but I wouldn't have known how to read them. I am talking about plans or anything like that. You know, I don't know -- if you look at a part description these guys are working on, don't ask me to look at it. What the hell -- I wouldn't know anything about it. Q. But you had access to the records if you wanted to? A. Yes, if I wanted to. But I had no interest in them. Q. Who were Calabrese & Sons' bookkeeper or if there were more than one during your time there bookkeepers? 59 • 0 ?J 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Chris Wampler was there almost the whole time. Pat Maclean came in sort of -- Chris took a job with the state in early I guess '05, and Pat was the parts manager and he wanted a shot at the job. He just was a terrible bookkeeper. I mean, how do you only record one side of a transaction? Q. And did the bookkeepers take instructions from you? A. No. Q. So you would never have corrected them if they were making mistakes? A. If Chris would come in and say something to me, he would know what it is and we may have to figure it out, exactly how to go about doing it, but he did pretty much all of that. Q. So if you saw Pat recording only one side of a transaction, you wouldn't have done anything? A. Well, it was toward the end. I didn't really give a shit, and Radonovich had come in and she was helping with the payroll. So I think she came in and took over the whole thing. Pat is a good girl. Q. So towards the end of your tenure there, you really didn't care what happened to the company? A. Well, I wasn't spending hardly any time there. Q. So you would have had no incentive for them to 60 • 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 do better, correct? A. Once the Brandy Lane deal went south, it was golf season. Q. And once the Brandy Lane deal went south, you had no reason not to get as much out of the company as possible, right? A. Well, I would have liked to get something out. But at that point in time, they were not experiencing a good year, so there was nothing to be had. The good years were two years before when they pissed it away. Q. But you had certainly wanted to recover whatever you could from the company? A. Oh, sure, but you can't get, you know, money out of nothing. Q. Tell us about your plans for a federally subsidized elderly housing community on the property adjacent to Calabrese & Sons. A. Section 8 housing? Q. Yes. A. If I would have got that property, I would have put one in. Q. But you didn't get the property? A. No, because Joe sold it, which is, you know, that's the way -- Q. Did you want to buy the property? 61 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. We foreclosed on the property because he had not made his commitments in repaying me. Q. Who didn't make their commitments? A. Calabrese & Sons. Q. When Calabrese & Sons sold the property in the first place, you were interested in it, weren't you? A. You mean the building? Q. The land adjacent to Calabrese's factory. A. I would like to convert that, yes, but it didn't happen. I guess the guys that bought it now look like they are going to eat it, because now they have pulled their equipment out already. MR. MOSEBEY: I have no further questions. FURTHER EXAMINATION BY MR. McCALEB: Q. Mr. Mosebey asked you about whether you had a written agreement with Calabrese for repayment to you of monies that you had advanced over the course of time; do you remember that question? A. Yes. Q. And my recollection is your answer was no, you did not have a written agreement? A. Well, we only had the one where they were going to pay me the $5,000 a month, and then they didn't do it. Q. But that $5,000 was on account of the McNees 0 62 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 note? A. That's right. Q. The 2004 note, correct? A. That's correct. Q. Now, speaking of that note, again I'm going back to Plaintiff's Exhibit 11 and showing you a copy of that note. In paragraph 18, at the risk of belaboring this, paragraph 18 refers to the sum of $213,000 plus, correct? A. Yes. Q. Which is the net advances outstanding at that time, correct? A. That's what it says. Q. So at least to that extent, there is a written agreement for repayment, right? A. Well, yes. Q. Okay. And then the Sorel note, referring to Plaintiff's Exhibit 1, is for $245,000 plus, and you put in a hundred thousand to pay off Sorel, correct? A. That's correct. Q. And I believe you testified that the balance of that note was to cover funds that you had advanced to Calabrese over a period of time; is that correct? A. That's correct. Q. So to that extent, the Sorel note is a 63 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 documentation or an agreement for repayment of funds, correct? A. Correct. Q. Although the note does not specify a net balance like the McNees note does; is that correct? A. Right. Q. Now, just to tidy up the record, Plaintiff's Exhibit Number 7 is a Judgment Release, correct? A. We looked at this 20 times. Q. And it is docketed to number 2005-01827? A. Correct. Q. That's the Sorel note, correct? A. Correct. Q. This is a release of the Sorel judgment for lot number two? A. So they could make the deal on the land. Q. I want to show you Plaintiff's Exhibit 13. That's also a Judgment Release? (Handing documents.) A. M-hmm. Q. And that docket number is for what you have described as the McNees note? A. That's correct. Q. The 2004 note? A. Right. Q. And it's dated what? 0 64 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 2E A. The 27th of June '06. Q. This is a release of that judgment from lot number two; is that correct? A. Correct. Q. And then there was another settlement in 2007, right? I am showing what you has been marked as Plaintiff's Exhibit Number 10. What's the date of that document? (Handing documents.) A. 31st of August, 2007. Q. And that's also a Judgment Release, correct? A. Correct. Q. And that's docketed to number 2005-01827, correct? A. Correct. Q. That's the Sorel judgment? A. Okay. Q. So this is a release of the Sorel judgment from lot number one, correct? A. Correct. Q. And then last, Plaintiff's Exhibit Number 14 dated -- A. August 31, 2007. Q. And that's docketed to? A. 3940. 65 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2C 21 22 2- 24 2 ` Q. That's the McNees note? A. Right. Q. The 2004 note. So with those four judgment releases, both judgments have been released from both lots, correct? A. That's correct. MR. McCALEB: No further questions. I just wanted to tidy it up. MR. MOSEBEY: Nothing further. MR. McCALEB: Before we close the record, I just want to make a formal offer of all of my exhibits into evidence, 1 through 17. MR. MOSEBEY: I have no objection to that. (The deposition concluded at 12:00 p.m.) 66 • 1 2 3 4 5 6 7 8 9 10 11 12 • 13 14 15 lE 17 1E lc 2( 2' 2: 2. 2 2 C E R T I F I C A T I O N I, JENNIFER CHANCE, a Court Reporter - Notary Public authorized to administer oaths and take depositions in the trial of causes, and having an office in Carlisle, Pennsylvania, do hereby certify that the foregoing is the testimony of DAVID FISHER. I further certify that before the taking of said deposition the witness was duly sworn; that the questions and answers were taken down stenotype by the said Reporter-Notary, approved and agreed to, and afterwards reduced to computer printout under the direction of said Reporter. I further certify that the proceedings and evidence are contained fully and accurately in the notes taken by me on the within deposition to the best of my ability, and that this copy is a correct transcript of the same. In testimony whereof, I have hereunto inscribed my hand this 29th day of June, 2009. +en ifer A. Chance, urt Reporter-Notary Public 3 NOTARIAL SEAL Jennifer A Chance NOTARY PUBLIC Boro of Chembersburg, Franklin County My Commission Expires 08/3012011 • k\ ? X bit S • 0 PLAINTIFF'S EXHIBIT 1, 6 I'LL ATE EGAISUS PAGE e3r1 64r04/2005 13:33 7172431850 MDWO P:u+iCrSWTAFn.@C?ACp?renNl100ldaeu ?? ' I ?? ? ?"7/"? -C'` .?_ ? I'? 245,2$$.59 Date id fatc?'i 2S, y4j? Cumberlatkd Co ,,PeQr PROMISSORY NOTE PROMISE TO PAY-. FOR VALUE RECEIVED, CALABRESE & SONS, INC., a Pennsylvania corporation with a business address of P.O. BOX 1667 406 Brandy Lane Mechanicsburg, PA 17055 ("Maker") promises to pay to SOREL FORGE CO., a Canadian corporation wing itsprincciplace of business at 100 McCarthy St. Joseph deSoxel, Quebec, Canada J3R 34, it } orto the order thereof, in lawful money of the United States of America, the principal amount ofTwo Hundred Forty Five Thousand, Two Hundred EightyEightDollms, and Fif yNine Cents ($245,288.59), togetherwith interest on ttLe unpaid principal balance from the date of this Instrument until paid in full. PAYMENT: Maker will pay this loan in accordance with the following payment schedule; Payment upon demand. Maker will pay Holder at Holder's address shown above or at such other place as Holder rmay designate in writing. Unless otherwise agreed or required by applicable law, payments will be applied first to accrued uxaid interest, then to principal, and any remainimg amount to any unpaid costs and late charges. PR P AYMNT: Maker may pay, without penalty, all or a portion of the amount owed earlier than it is due. Early payments will not, unless agreed to by Holder in writing, relieve Maker of Maker's obligation, to continue to make payments under the above payment schedule, Rather, theywill reduce the principal balance due and may result in Maker making fewer payments. DEFAULT: Maker will be in default if any of the following occurs: (a) Maker fails to make any payment when due; (b) Maker breaks any promise Make' has made to Holder, or Maker fails to perform promptly at the time and strictly in the manner provided in this Note, or any agreement related to this Note; (c) Matter defaults under any loan, extension of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of any other creditor orperson that may materially affect any of the Maker's property or Maker's ability to repay this Note or perform Maker's obligations under this Note or any related agreement; (d) any representation or statement made or f mished to Holder by Maker or on Maker's behalf'is false or misleading in any material respect; (e) Maker becomes insolvent, a receiver is appointed for any part of Maker's property, Maker makes an a.ssigmnent for the benefit of creditors, or any proceeding is commenced either by Maker or against • Maker under any bankruptcy oar insolvency laws; (f) any creditor tries to tape any of Maker's property on which the Holder has a lien or security interest; (g) any of the events described in this default section occurs with respect to any guarantor of this Note; (h) Holder, in good faith, deems Holder insecure. MDWO PAGE 0411E ed/0412005 13:33 7172431850 CONk'ESSION OF ,TDGM NT: The Maker hereby irrevocably authorizes and errtpowms any clerk or attorney of any court of record. within the United States or elsewhere to appear prothonotary, wjudgment at any time or times a each, for the Maker and, with or without declaration, to Holder f the above sum plus interes thtereon any or all of the Maker(s) and in favor of the Hol t' of this note verified by affidavit shall be from the date hereof, and fox so doing, this Note or a copy o sufficient warrant.' The Maker horcby releases all errors and expressly waiv aan rights texas ustay sale of of execution, sequestration of rents and,exemptiou of any property froze levy under any law or rule of court now in force or hemafter enacted. All of the foregoing promises are the joint and several praatiaes of the Maker and shallbind the Maker, its successors and assigns. The Maker and all endorser waive protest, demand and notice of nonpayment ofthis Note. The authority granted iu this Note to confess judgment against Maker shall not be exhausted by any exercise of that authority, but shall continue from. time to time and at all times until payment in full of all amounts due under this Note. HOLDER'S RIGHTS : Upon default, Holder may declare the entire unpaidprinaipalbalance on thus Note and all scorned unpaid interest fommodsately due, without Note if Maker does not pay. Maker amount. Holder may biro or pay someon<Io else to help applicable 1,avV, Holder's attorney's fees will also pay Holder that amount. This iuncludes, subjactto any app and legal and court expenses whether or not there is a lawsuit, including attorney's fees and Holder's legal expenses for bankruptcy proceedings ( including efforts to modify or vacate =y automatic stay • or injunction), appeals, and any other post judgment collection costs and services. Maker will also pay any court costs, in addition to all other sums provided by law. If judgment is entered in connection with, this Note, interest will continue to accrue on this note after judgment at the za applicable to this Note at the time judgment is entered. The remedies provided to the Holder in this document in the event of a default or a breach of the conditions ?aereut, shall not be construed to be exclusive of any other remedy available to the Holder and the Holder may exercise any remedy available to Holder. Additionally, the exercise of any one remedy shall not be considered a waiver of all those other remedies available to the Holder. GENERAL PROVISIONS: The interpretation and consttumion of this Note along with the rights and remedies available to the parties hereto shall be governed by the laws of the Commonwealth of Peattn5yivania. If any provisions of this agreement shall be held invalid or unenforceable, such, shall not affect any other provision of the Note. This Note represcuts the entire agreernent between the Maker and Holder. No waiver or modification of the terms of this note sWl be valid unless iu writing, signed by the Maker and Holder r? u ' PAGE 05/1E MDWO 04!04!2005 13:33 7172431850 TO SIGNING 'THIS NOTE, MAKER AC?TOWLEDGE THE EEXECUTION AND PRIOR LEGS COUNSEL IN CONNECTION WITH REPRBSErt'fF.D BY UNDERSTOOD ALL THE TjjAT IT HAS RBAD AND PROVISIONS OF OF TIM THIS NOTE, DELIVERY ?INCLUDING TIM CONFESSION OF =GHENT PROVIS'ON. PROVISIONS MAKER AGREES TO THE TERMS OF THE NOTE AND ACKNOWLEDGES RBCEIPT OF A COMPLETED COPY OF THIS NOTE. has caused this Note to be executed under seal this S ?OF, Makcx day ofd . ATTEST: CA.LABRESE & SONS, INC. Y= • 0 04/01! lbbb lb: t4 I1 lL4J160C1 MARTSO.N DSA DORFF :WYLT YAtvts_ & Q . Co M-SELLORS:AT LAW CA wnt,uM i . MAa?sori • .. ; ? R?sex ' :. ' 3omiB. F0+IVL3R::IDAvfnA. Frrtsttoias vas•Rovc?C+?cx .. : DAVWR;•GAUgwAX U,EO T[oN • !?b yDWab L.'SCHORPP DDJEJAMMIT : `.;. ArtnioNY T.-Lvcmo.. • Y. r?x SIMEXT ... :. TxOWL&S 3.. W.I IIAM * ' Cfnusrdri p, E: YtICi lo_pws JtL.•SPa?res . CAaus[ r. Pn?SnvANUi 17813 ' ivoV•f3rre Tlt • GEOace.?:Fiuxm?'h.' H?unxrA Dom. . i`G?exo? (?1'7) 243-3341 C??maaQva'7{?ut siecwrsr:. . FACS 717243-1'858:..' :. ( f April 2005 PI-pIpTIFF'S EXIOUT .. • .. ,. ; ..r'?-f:cir?i???F, (775-2S1-b52_?`' •? • ' ' ? - • ' - .' .... • • • • 2 - , ?, , ' :Atli-. ?3?k•;povvers . . • - - , •.. . ? ?. ? - : - ' - • ... ? •. RCC : :. ; P-.D. Box 9659.'-. Miniieapol}$r MN:5k0.: Son Inc,- anove Astociates; Sorel,Sfee1 Calabrese •8t ' s, Oijr Filc No*,: 1 > 09 .5 Dear l?rtic: powers:... :..,. Eo es,ofE,docurYientsihat were pzeviously reviewed ' led Enclosed with.this letter are:ciaxif P; : byyou:ori'behalf of Sorel. _ .:. :. ) anover Associates is an invc%PeP? paxtaeiship'v?ltichhas ip'vested'flYnds'i ito the.oiig°ini :... . 71ic stiucturc ftt'.these-dociunents rcgicscnt •: tlian`around'of the;Calabicse 8? Sons business: Behalf of.'Sor 1. Si eI by:Caiabre in the iiii'tht "irivolv?s the filing 'of a vohuitary' ?>t. :.:. . ro nate for`the ; triu ?rlaod jaunty Court, Cumiimiand;Co tY Court is the county jurisdiction app P .>gistiatioli•:of such civil judgments.. • ofHanoverAss .c -s' The; n4gc%tiated kgreemcnt bccweenavid fisher, the GeYiexal p r: Sorel :b :of the dispuied.am??t allege?}y owed:tif' Y and So?Pcl, inpolves the discoutitin £p•.. Cntt0SpF81'of.$lOO,00Q: '.dollars .. . Calabrese: to I? Yiover Pamners-in• ci4• ge r a payin r uistte to the trarlstYiittal'of Tlae frlil7g of the .judgment an bclialf of Sorel is_ a ilecessais+ p an concern. about: tiie 'cotuse,' xs `protected':by' „•Y • .. , . the l bf the: $100,000: Soztil; of m 'to Sore panhent Calabrese. and Hanotrer in that an entry of judgriYei?t will be, madeY Y- ...' ,fthe.rorYUsc by t.of?1O0 060 goigg.tdoverdocuSdiel: The' filing- izxtegit3+ a office'cn behalf'of $arel, b rlmec 0AY prior to. the gepates etvweE., .e :and icgistrat%n of th az'c?i?brtcbn'Soil•aiEirl HnYnenting ' •' . ` , 1 e judgment along with the p the arrari enient are necessary preiequisites: for Han?ov?er's 5rlaneiiig of the puichase of Sorel's alaiYn. . g . :. •' .So, at the end of the piocess,.Sorekwill have $1O0,000:LTS dollars and wilLhave giveYi'lip and :. •..fuit}ier claitin'.agl sf'Calabrese falfw g to thre.disput" ,1. a, :* iiiti v oetnawl ill have a judgineat on the records `... n the .Calabrese ' . . ' • the'-S100'000 :pat funds: iYtilizeil :'i d .fo Sorct aitd •ii1 its. f2; or. securing' 'Ou ' T N IF, O..R M :A 1 •! N„ :. p:b'?/• I,C E p ruNVv 04115/2005 14:bb rlrzgairsnr 04/04/2005 13:33 7172431850 pear 2"F as 10:13P CRL.RDRESE & SUMS MDWO omloff ohm PAGE 09/10 ?17>r6763oS p . s I?IMW piers CW CUOft-RLAWCOUNTY. 1N .Mg cow of ga•YANIA 0 &DROL FORG2 e Y. CA1. ABR6SE DeftndlPt Mo. 05-1827 - Civil Civil Ashen - LAW _.. ?..saur etc JuDaME?T ape Co., herby 09 °ra 04 of FOR VALUE ? Soerel ynb ? M,' & s de 14ft . ar?d 00 irrl0Monover a ere In and to ft 1? del tll tV? st Sam, In., in te cg;doned adion. ?..Z FVtIA co• ApW ?1 )dos AWN= ado, Rug McC??t'?ii? s-f-,,44gf c ? ?>? SaQ F for ford CO. FOMM A QM.C , ?r??tavA zl3R -3MP 'rn -d- r MUWU 04187/2005 15:25 7172431850 . PLAINTIFF'S CO. tjo PtxtcK %AGPPSOENr ?ITHIS 0 E AGRIL'l rs nbfe?l $4 O's be wwM , SEC dasa l? dy , St. of o ZifleR at 1 QO M p f,aYCOradr AR ? at 311 East EMWod Stret, 6 'To Imit8d N hevtsg ?s prir?dpd of ? M17055 ("Pu[CI1ale? WKtSROUND A. ? o laic. (•D, +) is ;Ddsbbed to Crgditor in tho Arrim" of d?arges in tsr =moog of I ft of ? own qm 1 t° Oet W In t a'aif'°rY °°'?rse Debut and ba sail co pudrai?. t dsairos t°'pexdre from a mew, go r1 Ogkvn to W sere to tie t7e?t the DeK and ary and ON °rtM or NOME 1U M the t hereto' lMwWft to be MOW bound hef ", • agree as fb 1. Wwhin tarn (10) days ftm the date hwed, r r?fesgfon 0~ a +d* W*wbmd Pn'0mxr n of wenowsh t dw In dw afr OW* of" Debt (Do IRc ta") duq exswted by an sudNowf ? b y by ccoor? mel ?ar?n b of the Nola,, is the fun amount of the Oebt. 2. VAW 90 (6) d4" fbllOWN Gro QW9 MOW of the Naas. Qandltvr small enwmwn"tt by cwftulcn against DobW on fi! Nde in the Cawt d Cmvmn Pleas doll &m of Cum Cow. P all in sco ? ? at0bAmk rules D~ af7lae entry Of fie Judi. of cent and other bears. 3. provided t haR the is, ttra Juolgttteftit >a 1 for the fcAt aarroffix t of the Dew on or beFor+e 2M. CmAlb w *W *04 MWF W transivf tv Purdh2vwand stroll purdYalbe mW saoepk much mB*nmmtand treww frm cmdbor of vo oeM the Coate and tlw judgmat. and all 0#0 ahd po tft mWtk fort* wm of orue limdmd'I hmmanrd uid WOO Od we ($100?Dw.00) mw "Pta waft per")' 4. At dosing of the trtidr *wAun kW by this AgreMm ant (!ba "Closing"). ome ahan deKw to Pua dww Ow foll"Wing: • MVWU f Ht]C UD/ U7 IL t oral documerftaition h t 9 PMOOSIOn 9 to ft eft, inducting vaum lmW*m of acre m. eats, pose orde3iel h molms and Simtemrem of account to " Debt» b. the oftkW eno v ted We ahdmod to dw ostler of Purchaser and exevAm by Cr omm w* the foibwba ends erneret typed onto the face of the Notes may to Me order ofHgo fa I I, I AMOVERAODOM 73M x ?' a my rltl? ? ? a ? 5>: Rvrc ?s i lams atedbofl to b wd'se caimpmy e~ a tieree rreped wpaa of the Judgenent nodas ad to Jucnent end proof of serrtce vF Aolfea at ttep.iseelareeusMe? d. a filly &V=Ided AeMrifeleftt of AmOVI aftt 00 Prmim pr to lndm the as erd of Ow Judgment in the Cam of Carvanan Plans. of OMbee NW County. POnt"haanh, In the f0m ittscl?ad hereto as I 5. At Cb=%;, Pur dwer *W deliw to Cradh t the Purnlum Price by oaeh * ortalWo dwwK in 3rn % s cletaiy wmImW tands, or by wiz timm t, IL This AgumnMt dW to Bove ivied by and oo wvwd under fhe tuapss of the Cbn mo mwmw lfe of P%1a? IAlj 1e71d rognm to Ofetl?{Ct of !em pfindples. T_ The pabom berdo trrawcft mgm ti* any epee, aeilon or preoa c ft wish uneits orwm rasped to this AW"nw*vA be koft d Into Court eatCarron Pain of Cumbw eyed County Famsybivo a, ar tree Urftd Stales Okbk t Cain for the !?rlMcle Obt W of In Fla elft rg. PwmyhrWdo, and tr meabiy mid unrasndidomlly submit to the jesrlodiaNon of each with Gout liar suM purpose. ISIM ATLM APPEAR ON FOL.LOWlNG PAGE] .2_ • . H WrrMESSV"REOF, %a P ' hemb hWe "eaAad this AWwm6tit Oft 1tle ddq 1 act forth SbYw- SOltEL FO C- ?? / s?Rctrc?s t fWft autolty to bind ft Onmpany SY b d FWW GOMW Pam • PYS511 Cumberland County Prothonotary's Office Page 1 Civil Case Print 2005-01827 SOREL FORGE CO (vs) CALABRESE & SONS INC Reference No..: Filed........: 4/07/2005 Case Tyyppe.....: JUDGMENT - NOTE Time...... . 2:57 dgmenf.:... : 245288.59 Execution Date 0/00/0000 dge Assigned: OLER J WESLEY JR Jury Trial.... --sposed Desc.: Disosed Date. 0/00/0000 ------- Case Comments ------------- Higher Crt 1.: Higher Crt 2.: ******************************************************************************** General Index Attorney Info HANOVER ASSOCIATES PLAINTIFF MCCALEB MARLIN R 100 MCCARTHY ST JOSEPH DDESOREL J3R3M8 TRUE COPY FROM RECORD QUEBEC In Testimony whereof, I here unto set my hand CALABRESE & SONS INC DEFENDANT and the seal of said Court at Carlisle, Pa. P 0 BOX 1667 406 BRANDY LANE Ao`? 4? ..... MECHANICSBURG PA 17055 .....fit....... day of..... _ Judgment Index Amount Date Desc CALABRESE & SONS INC 245,288.59 4/07/2005 NOTE ******************************************************************************** * Date Entries ******************************************************************************** FIRST ENTRY - - - - - - - - - 4/07/2005 JUDGMENT NOTE ENTERED IN THE AMOUNT OF $245288.59 DATED MARCH 25, 2005 ------------------------------------------------------------------- 4/07/2005 NOTICE MAILED TO DEFENDANT ------------------------------------------------------------------- 15/2005 ASSIGNMENT OF JUDGMENT FROM SOREL FORGE CO TO HANOVER ASSOCIATES ------------------------------------------------------------------- 9/05/2006 PRAECIPE FOR WITHDRAWAL OF APPEARANCE - BY DAVID A FITZSIMONS ATTY FOR PLFF ------------------------------------------------------------------- 9/05/2006 PRAECIPE FOR PARTIAL JUDGMENT RELEASE - BY PLFF ------------------------------------------------------------------- 9/05/2006 PRAECIPE TO ENTER APPEARANCE - BY ROBERT E CHERNICOFF ATTY FOR PLFF ------------------------------------------------------------------- 9/11/2007 JUDGMENT RELEASE - BY DAVID G FISHER GENERAL PARTNER PLFF ------------------------------------------------------------ 3 31 2008 PRAECIPE FOR WITHDRAWAL OF APPEARANCE FOR PLFF - BY ROBERT E CHERNICOFF ESQ ------------------------------------------------------- 3/31/2008 PRAECIPE FOR ENTRY OF APPEARANCE FOR PLFF - BY MARLIN R MCCALEB ESQ 3/31/2008 NOTICE UNDER PA RCP NO 2958.1 OF JUDGMENT AND EXECUTION THERON - BY MARLIN R MCCALEB ATTY FOR PLFF ------------------------------------------------------------------- 4/28/2009 PETITION FOR RELIEF - BY SETH T MOSEBEY ATTY FOR DEFT ----------------------------------------- 5/06/2009 ORDER OF COURT - 5/06/09 - IN RE: DEFT'S PETITION FOR RELIEF: 1/ RULE ISSUED UPON PLFF TO SHOW CAUSE WHY DEFT IS NOT ENTITLED TO RELIEF REQUESTED 2/ PLFF SHALL FILE ANSWER TO MOTION WITHIN 21 DAYS OF DATE OF THIS ORDER 3/ PETITION SHALL BE DECIDED UNDER PA RCP 206.7 4/ DEPOSITION SHALL BE COMPLETED WITHIN 49 DAYS OF DATE OF THIS ORDER 5/ ARGUMENT HELD 7/09/09 AT 11:15 AM CR1 CUMB CO COURTHOUSE 6/ BRIEFS SHALL BE SUBMITTED AT LEAST 5 DAYS PRIOR TO ARGUMENT - - - - • _ BY J WESLEY OLER JRJ - COPIES MAILED 5/06/09 LAST ENTRY - - - - - - - - - - - ** *************************************************************** CO41441;?? * RJUI IFF'$ Escrow Information EXi' PYS511 Cumberland County Prothonotary's Office Page 2 Civil Case Print 2005-01827 SOREL FORGE CO (vs) CALABRESE & SONS INC Reference No..: Filed........: 4/07/2005 Case Type ..... : JUDGMENT - NOTE Time.........: 2:57 dgment...... 245288.59 Execution Date 0/00/0000 dge Assigned: OLER J WESLEY JR Jury Trial.... 01sposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: * Fees & Debits Bw*Bal***P*ymts/Ad End Bal *********************************** ****** ******************************* JDMT/NOTE 9.00 9.00 .00 TAX ON NOTE .50 .50 .00 SATISFACTION 5.00 5.00 .00 AUTOMATION FEE 5.00 5.00 .00 JDMT/ASSIGN 5.00 5.00 .00 JDMT/RELEASE 5.00 5.00 .00 SATISFACTION 8.00 8.00 .00 ------------------------ ------------ 37.50 37.50 .00 ******************************************************************************** * End of Case Information ******************************************************************************** • U • PLAINTIFF'S EXHIBIT HJD-1 1.3-061 RESPA. H04305.2 K I 00 t0 to T Paid at 802. Loan Discount 803. LOAN DOCUMENTA-, ee 811. to 901. Interest From 08/09/06 to 07/01/06 ® $ 902. Mortgage insurance Premium for months to 903. Hazard Insurance Premium for 1.0 ars to EF 904. BUSINESS UMBRELLA 1.0 ars to EF 905. 1001 1001 100; 1001 LM 1101 1107. 2005 DELINQUENT TAXES to 1113. NOTARY FEE /ERNM_ ENT RECORDING ND T aNSF 1201. Recording Fees: Deed $ 38.50; Mor 1202. C' /Coun Tax/8tam s: Deed 1203. State TaY/Ct?,,,.,e• months s PA:C FROM PA. FROM BORROWER'S SE_LER'S PUNS AT FLNDS AT SETTLEMENT S'T r' SMENT 22 Releases 1301. Surve 3 1302. Pest Ins ec6on to 1303. ROOF REPAIR to 1304. ADVANCE RENT to M. POTTEIGER, INC. to BRANDY INVESTORS -IMITED PARTNERSHIP 1305. See addit'I disb. exhibit to 1400. TOTAL SETTLEMENT CHARGES Enter on Llnes 103, Sectlon J and 502, Section K) by signing page 1 of this statement, the signatories acknowledge receipt of a completed coPY of page 2 of this two statement. a211 Page Certified to be a true copy. Midstate Abstract CohSpany '- Settlernent Agent • as 5,9,'1 aRANDYINVFSTORS,BRANDYINVESTORS142 Borrower: Seller: Lender: Settlement Agent: Place of Settlement: Settlement Date: Property Location: PAYEEID ESC Joseph E. Altomare, Attorney for Dyson Corporation JUDGMENT PAYOFF REAGER & ADLER, P.C. OVERNIGHTS & HANDLING REAGER & ADLER, P.C. TAX LIEN/GOOD STANDING SEARCH BRANDY INVESTORS LIMITED PARTNERSHIP ROOF REPAIR SALZMANN HUGHES, P.C., Attys for Canada Forging JUDGMENT PAYOFF VIRGINIA CALABRESE JUDGMENT PAYOFF HANOVER ASSOCIATES JUDGMENT PAYOFF • MARTSON DEARDORFF WILLIAMS & OTTO LEGAL FEES FRIEDMAN & KING, PC', Attys for Englehardt Gear Co. JUDGMENT PAYOFF ESTATE OF MICHAEL P. CALABRESE, JR. JUDGMENT PAYOFF REAGER & ADLER, P.C. JUDGMENT ESCROW RECORDER OF DEEDS MORTGAGE SATIS NO FACTION Commerce Bank PROTHONOTARY JUDGMENT RELEASES RECORDER OF DEEDS MORTGAGE SATISFACTION Commerce Bank Total Additional Disbursements shown on Line 1305 U ADDITIONAL DISBURSEMENTS EXHIBIT BRANDY INVESTORS LIMITED PTRSH CALABRESE AND SONS, 'NC. MEMBERS 1ST FCU Midstate Abstract Company (717)763-1383 2331 Market Street Camp Hill, PA 17011 June 9, 2006 406 Brandy Lane Mechanicsburg, PA 17055 Cumberland County, Pennsylvania 44,504.80 135.00 82.00 18, 700.00 41,784.72 122,550.33 250,000.00 80,000.00 $ 0.00 8,213.03 486.65 13,182.44 27.00 20.00 27.00 $ 579,712.97 (BRANDYI NVESTORS. PFD/BRAND Y!NVESTORS,42) a ACKNOWLEDGMENT OF RECEIPT OF SETTLEMENT STATEMENT Borrower: Seller: Lender: Settlement Agent: BRANDY INVESTORS LIMITED PTRSH CALABRESE AND SONS, INC. MEMBERS 1ST FCU Midstate Abstract Company (717)763-1383 2331 Market Street Camp Hill, PA 17011 June 9, 2006 406 Brandy Lane Mechanicsburg, PA 17055 Cumberland County, Pennsylvania Place of Settlement: Settlement Date: Property Location: I have carefully reviewed the HUD-1 Settlement Statement and to the best of my knowledge and belief, it is a true and accurate statement of all receipts and disbursements made on my account or by me in this transaction. I further certify that I have received a copy of the HUD-1 Settlement Statement. BRANDY INVESTORS LIMITED PARTNERSHIP By its G rat Partner Brandy M cha ' sb g, LLC By:? t L? m r.'Ro"an, Member By:. CALABRESE AND SONS, INC., a Pennsyvlania corporation seph A. Calabrese, President • To the best of my knowledga the HUD-1 Settlement Statement which I have prepared is a true and accurate account of the funds which were received and have been or will be disbursed by the and rsigned as part of the settlement of this transaction. Midstate Abs ct Company Settlement Agent WARNING: It is a crime to knowingly make false statements to the United States on this or any similar form. Penalties upon conviction can include a fine and Imprisonment. For details see: Title 18 U.S. Code Section 1001 and Section 1010. HUD-1 (3.86) RESPA. Hn430E.2 - .. a. •r • ' i'?wpwiA?Clients\RSR Misc\Calabrcse.)UDGMENT RELEASE.S245,288.S9.doc E ANOVER ASSOCIATES, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, : PENNSYLVANIA V. : NO. 2005-01827 CALABRESE & SONS, INC., $245,298.59 Defendant : JUDGMENT IN FAVOR OF PLAINTIFF JUDGMENT RELEASE WHEREAS, Plaintiff entered a judgment against Defendant on April 7, 2005, to the docket number as referenced above; and WHEREAS, the Defendant is the owner of a certain parcel of land located in Mechanicsburg Boro and Hampden Township, Cumberland County, Pennsylvania more commonly known as 406 Brandy Lane; and WHEREAS, on April 2, 2006 Defendant filed a Preliminary/Final Subdivision Lot Consolidation Plan to Cumberland County Plan Book 92 Page 44 subdividing what was commonly known as 406 Brandy Lane into two separate lots shown on said Plan as New Lot 1 and New Lot 2; and . WHEREAS, in consideration of the Defendant partially satisfying the above-referenced judgment, Plaintiff has agreed to release the New Lot 2, as more fully described on Exhibit A attached hereto, from the lien and operation of the above-referenced judgment. NOW THEREFORE, HANOVER ASSOCIATES, Plaintiff in the above Judgment, does appear and acknowledge that she has this day received from CALABRESE & SONS, INC., the Defendant in the above Judgment, PARTIAL, payment and satisfaction of the same, with interest and costs, and desires that this Judgment Release be entered upon the records thereof only as it effects the New Lot 2. New Lot 2 is hereby released from the lien, operation and effect of the said judgment. This Judgment shall, until satisfied of record, remain in full force and effect against the New Lot 1. And further, it does hereby authorize and empower the Prothonotary of said Court to appe and in its name and stead to enter the Judgment Release upon the record of said Jud so i for it effectually, to all intents and purposes as it could, were it present to do so. And for so doing this lWWI e your sufficient warrant of authority. IN WITNESS WHEREOF, the Plaintiff has caused these presents to be signed this_ day of June, 2006. ATTEST: • HANOVER ASSOCIATES By: PLAINTIFF'S Its: EXHIBIT C] • CUNNINGHAM & By. Robert E. Chemic Sup. Ct. ID No. P.O. Box 60457 Harrisburg, PA 17106-0457 (717) 238-6570 0 I,\wP*'n C}ients' RSR Misc?Calabrese.JUDGMENT RELEASE.$245,288.59.doc • COMMONWEALTH OF PENNSYLVANIA ) SS. COUNTY OF ccj0fu-n' ) On this, the o0 '7 7? day of 2006, before me a No ' Lary Public, the undersigned officer, personally appeared ,l tg. 120V known to me (or satisfactorily proven) to be the person whose name is subscribed as agent for HANOVER ASSOCIATES, and acknowledged that he/she executed the same as the act of his/her principal for the purpose therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. j4uh? Pubde NOTARUL SAL JUMANNE ET cfty Of urqPA D MY Expkee Feb. 22, 2007 0 • EXHIBIT A ALL THAT CERTAIN piece or parcel of land, situate, lying and being in Mechanicsburg Borough, Cumberland County shown as New Lot 2 on the Calabrese & Sons, Inc. Preliminary/Final Subdivision/Lot Consolidation Plan Recorded April 3, 2006 in the Cumberland County Recorder of Deeds Office in Plan Book 92 Page 44 to wit: BEGINNING at a point on the southern side of Brandy Lane at a 5/8 inch rebar with cap thence South 27 degrees 04 minutes 00 seconds East a distance of 376.89 feet to a point thence North 37 degrees 14 minutes 52 seconds East a distance of 509.19 feet to a point thence North 37 degrees 05 minutes 01 seconds East a distance of 66.58 feet to a point thence South 42 degrees 05 minutes 07 seconds East a distance of 179.93 feet to a point thence South 24 degrees 27 minutes 41 seconds East a distance of 490.52 feet to a point thence South 65 degrees 27 minutes 00 seconds West a distance of 593.70 feet to a point thence North 27 degrees 04 minutes 00 seconds West a distance of 744.09 feet to a point thence North 40 degrees 20 minutes 30 seconds East a distance of 54.16 feet to a point and place of BEGINNING. CONTAINING 7.628 acres more or less. 0 n U Certificate of Service AND NOW, this day of 4?n?A?? 2006, I hereby verify that I have caused a true and correct copy of the foregoing Praecipe to be placed in the U.S. Mail, first class, postage prepaid and addressed as follows: Robert E. Chernicoff, Esquire 2320 North Second Street Harrisburg, PA 17110-1008 and hand-delivered to: David A. Fitzsimons, Esquire 10 East High Street Carlisle, PA 17013 r? U Monica D. etcher Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011 (717) 763-1383 LJ F-I J 0 a RL O C,1 C? i.. .rte t n N Q ZiF* t tJ'? "D N co w 7:) L J11-i? :c JORDAN D. CUNN24GHAM CUNNINGHAM & CHERNICOFF, P.C. ROBERT E cHEI011COrr MARC W. wrrnc ATTORNEYS AT LAW BRUCE J. wAVS"WSKY P.O. BOX 60457 )E h`' HYAAts KELLY M. 1GNi1CFrt HARRISBURG, PENNSYLVANIA 17106-0457 TELEPHONE (717) 2384570 FAX (717) 238.4809 June 15, 2006 YYA FAX 730-73U i WGGULAA MAII. David A. Fitzsimons, Esquire cto David W. ReW, Esquire Ranger A: Adlm P.C. 2331 Marhat Street Camp Hill, PA 170114642 RE: David Fldher 1 Calabrese & Saris C&C FRe No. 901305 Dear David: HERS {EY TQ.EPHONT (717) &1-2833 IRS NO. 23-2274135 Sheet Addrew 2320 N. 2nd Sheet Harrlebur8, PA 17110 This letter is to eonfinn the understanding which was reached on tha telephone. The terms are as follows: 1) At closing today, Mr. Fisher will receive the suns of 5250,000. In cwbm ge, be will provide a release of his mortgW and jug (the "Lima") which he holds against the Calabarae & Sons property. 2) The Liens will remain of record as to the remaining real property and as to any other assets of Calabrese. Mr. Fisher shall have a first lien position on the remaining veal property of Calabrese. 3) The first liar position shall be confirmed by an up to date title search which you will supply. 4) The balance which is owed to Mr. Fisher shall be determined by a process whereby the parties will agree on an independent accountant who will review the figures with Mr. Fisher, Mr. Calabrese and such counsel as are necessary. In the event that the parties are unable to agree at that point, the parties will ei&w submit to mediation or a declaratoryjudgment action will be filed in the appropriate Court of Common Pleas. PLAINTIFF'S EXHIBIT CUNNINGHAM do CHERNICOFF, P.C. ATTORNEYS AT LAW David W. Reader, Esquire June 15, 2006 Page 2 5) For purposes of payments only, W. Fisher shall be downed to have the stmt of $440,000 still owed to him as to the amounts owed uaderthe taro Notes and secured by the mortgage and judo (the " Tmpmuy Amount'). b the evayt the amount owed under the two (2) Notes is determined to be other thaw the Temporary Amount, such Temporary Amount shall be adjusted based upon the process at forth above. Interest will accrue on the Temporary Amount at the rate of prime plus 2V& Monthly payments beginning July 1, 2006 shall be made to Mr. Fisher m the amount of $5,000 per month to be applied ficrt to the interest at the rate of prime plus 2% on the unpaid balance of the Tempoeary Amount with ft balance after payment to be applied to the principal on the Temporary AmouaL 6) Closing on the sale ofdw remaining real property of Calabrese shall be by December 31, 2006 or default shall occur. If Bye foregoing a acceptable, please taunter sip this letter on behalf of your client and return to me. You may inform the title company who is per6orming the closing that we will execute appropriate releases. I assume that they wiB provide me with a Release of Liens as are necessary for my review. If I need to prepare some, please let me know. Sinea+ely yours. CUNNINGHAM & CHERNVICOFF, P.C. Robert E. Chanicoff REC11bd cc: David Fisher I have read a to the foregoing. David A. Fitzsimons, Esquire 09-05-2007 02:25PM FROM-Ginsrich,Snith,Klinionsnith,i Dolan 7IT36TS219 I• AT 40.30 A u.s. aF>'wy, Stl7LEKAENT STATEMENT GINGRICH, SMITH KLINGENSMITI-I & DOLAN B.rfPEOFLOAN Qffiess locattid at: t (11aao 2 [) FMHA 3. [ ) CONV. UNINS. 222 S. Market St., Suite 201 4.1 I VA 6.1 cONV. INS. P, Q, BOX :267 7. LOAN NUMBER: Elizabethtown, PAa 7022 (717) 367-1370 6. ALE NUMBER: 7301 A. MORT. INS. CABS NO 46 East Orange: Street Lancaster PA 17602 717 393-3684 agent are S Hama marked to bY V" 56ttIMMOM w' C. NOTE: This form [s iwnished to &a Yw a State r1ft of adusl atBSmant costs. Arrwmts paid end am not Mckided In the totals- '(p.o.c.)- were paid outade the clodng; that ere shown bars tot intortnation PwP F NAME ANG ADDF9 35 OF LENDER D. NAME AND ADDFm of BORROWER+ :. NAME AND ADDRESS OF SELL ER STRONG EiOLDINC3S II, LLC CAItABRBSg & SONS, INC. ORRSTOWN BANK I. SETTLEMEn 1 LW C (;-PROPERTY LOCATION: :a 6EITLEmEW A&ENT: 09/05/07 BR!'XNDY LANE ohn M. Smith Es . acE OF WAIal: csburg, PA CUMBERLAND County Orrstown Bank, Mechani K. SUMMARY OF SELLER'S TRANSA"ON: d. SUMARY/ OF B0RROWER'6 TF ANiAO710R: , ,, eats AMOUNT DYETO SELLER , . n n n n r 640184.17 %so. GROSS AMOUNT DUE FROM BORROWER 659940.30 ?WgRon AMOUNT DUE TO SELLER ?_ _r...?.....a w AueuYT nut TO SELLER zm. Cop:tin "n(s) taken auDloa to _ .Payctt of Rrst Mortpapa taen so4• 9 Lpryoft of Second Montiape LOW 2 are. CASH AT 6 sot. lirocs erns acs. Leas enau CASH(M ` /1, T-459 P.0011002 F-454 OMB No. 2602-0296 TTLEPRO 72372. aid bY/W borrower ems z "+ -- - - - - FROM) SELLER 5 CASH (M TO) (( ] 6 7811.7 3 OY) ]To) ORROWIER 0.00 saa Q A'1 Slpnew. swept 612naaue HUO-t Rev. 5/96 l ? 0 • 1 n--tw- VA right to depots any etnwrta aalkoled for "I IWO"% in -n ceawtmeeoen jar es,=rA'c 1. 1111-jron°` HUD CERTIFICATION OF Bt7YLRs AND atLLERS nt r.etlD?+ and dlabUP.binantS S-twtrlan[ Si,alanont and to the Wait Of my kmWlodq* and bolM. It is a Wine an °urall, slatonu tV1/??Nl7DD / i I Maw oar by tlt- HUD-11 I tut ter o-rgb that I haw rocaNad ¦ oopY Of subammaiL nw aoc* toceumrtt bythe in an LO 5errti SlgMten Guyer a e S-WY. Now Addreec ? MOM: guya'a Addreec a Phoac r W drbureed n ercerdence win ink aatell,eM. r truo el 11111 trer,c,ctfen. 1 Mvu The I nt waive Pape DMe s t the United Doha on tic a -Y olmw l um. hmw- u pon eenvkgen an kckrde • the and inPrl-onmwll. Fa details see to it is a ark" b anowbot' meld is," vvdir we HUD-1 Nov. W Tlb ta• U.S. code S- i9n I- erd SSa"an' ' . aa_ne_911111 ni.,)aou t:RnL4-Cinrrieh.Smith.Klinaenanith,1 Dolan 7173673219 T-159 PAR/M r-ava • SOREL FORGE CO., Plaintiff VS. CALABRESE & SONS, INC., Defendant • PLANTIFF'S EXHUNT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 1827 CIVIL 2005 CIVIL ACTION -LAW In relation to the above referenced Judgment, for value received, the undersigned, with the legal authority to do so, hereby releases from the lien, effect and oparation of the above judgment: ALL THAT CERTAIN tract of land known as Lot No. 1, Brandy Lane, partly in the Township of Hampden and partly in the Borough of Mechanicsburg, County of Cumberland and Commonwealth of Pennsylvania, known as Tax Parcel No. 10-22-0521-015. Provided, • however, that nothing herein contained shall affect such Judgment or the lien thereof or its legal validity upon or against any other property of Defendant in Cumberland County, Pennsylvania or elsewhere. This Judgment Release is executed by Hanover Associates, LP by virtue of the same having been assigned to Hanover Associates by the Plaintiff by Assignment dated April 11, 2006 and of record at the above docket number and term and pursuant to an Order ofthe Court of Common Pleas of Cumberland County, Pennsylvania, dated August 28, 2007. Witness my hand and seal this day of A,h, 02007. HANOVER ASSOCIATES, LP By: • e'e-nx 1 2!:2- Date: David G. Fisher, General Partner • • • ALL THAT CERTAIN tract of lend with improvaomec thereon needed sitnste partly in Hampden Township and partly in the Borough of l?techaniasborg, Cumberland County, Pennsylvania, bounded and described according to the Calabrese & Sons, Inc., Preliminary/Find SubdivisiamUt Consolidation Plan prepared by Pann Team E ginccrin& Inc., dated November 16, 2005, and recorded in Cumberland County, Pennsylvania Plan Book.92, Page 44, as follows: BEGRI NlNG at aniroupin found on the dedicatedright-of--wayline ofBratdyLsno :. . (50' row) at the northwestern comer of land now or fotrawly of May Frances & Floyd E. Weaver, thence along said land of Weaver and land now or formerly of William L, Jr. And Deborah S. Shipman, South 50 degrees 34 minutes 52 seconds East 244.48 feet to an iron pin found; thane along said land of Shipman6 an unopened street, and land nova or formerly of Stephen P. & Laura E. Mkonis, North 3 8 degrees 35 minutes 08 seconds East 435.00 feet to sn iron pin found; Omm along an unopened street, land now or formerly of Roy R. & Carol P. Mason, Bay Street (private), and laud now or formerly of Jeffrey T. & Loraine R Mainline- North 38 degrees, 40 minutes 48 seconds East 332.11 feet to a W pipe found; thence along land now or formerly of the United States of America, South 31 dues 45 minutes 01 second East 1,080.42 feet to a V pipe fillod with eonmvte; dum along came, South 65 degrees 41 minutes 40 seconds West 658.31 feet to an imn.pln found; thence along New Lot 2 as set forth on the above-referenced Plan the following three courses and distances: (1) North 24 degrees 27 minutes 41 seeoads West 490.52 feet to an iron pin found; (2) North 42 degrees 05 minutes 07 seconds West 179.93 feet to an iron pin found; and (3) South 37 degrees 05 rninutos 01 second West 66.58 feet to an iron pin found; thence along land now or formerly of Mfichael S. Nailor, North 50 degrees 34 minutes 52 seconds West 325.26 Feet to an iron pin found; thence along said Brandy Lane, North 38 degrees 53 minutes 34 seconds East 55.03 feet to an iron pin found, the point and place of Beginning. BEJNG New Lot 1 on the Calabrese & Sons, Inc., Preliminary/Find SubdivisiordIxt Consolidation Plan containing 14.953 acres. 04 * p ?M w? _ 0 i HANOVER ASSOCIATES, IN THE COURT OF COMMON PLEAS plaintiff OF CUMBERLAND COUNTY, PENNSYLVANIA No. 04- 39W) " . -T- CALABRESE & SONS, INC., Defendant CIVIL ACTION - LAW CONFESSION OF JUDGMENT Pursuant to the authority contained in the Note attached as Exhibit A in the Complaint filed in the above captioned case, we appear for Calabrese & Sons, Inc. and confess judgment in favor of Hanover Associates against Calabrese & Sons, Inc. as follows: Principal $317,061.54 Interest S 6.507.56 Toted: $323,569.10* *Aloug whb interest accruing at the per diem rate of 581.47, coats of suit, costs and reasonable sttorney fees . for costs of collection until paid in 11611. Respectfully submitted: W K LLC Date: August 10, 2004 By J P. DeAnge norney I.D. No. 62377 100 Piine Street P. O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5357 (717) 237-5300 fax Attorneys for Hanover Associates TRUE COPY FROM RECORD In Testimony whereof, I here unto set my hand and the seal of said Court atII Carlisle, Pa. T day of...??t ......, 9? nl PI.AMITIFF'S EXHIBIT .?.... • HANOVER ASSOCIATES, VS. IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, PENNSYLVANIA CALABRESE & SONS, INC., Defendant No. 0 y_ 3 Q 4 0 Q"- CIVIL ACTION - LAW COMPLAINT FOR CONFESSION OF JUDGMENT Hanover Associates, by and through its undersigned counsel, hereby files this Complaint for Confession of Judgment pursuant to Pa.R.C.P. No. 2951(b) and in support thereof avers the following: 1. Hanover Associates ("Plaintiff) is a Pennsylvania limited partnership located at 311 East Elmwood Avenue, Mechanicsburg, Pennsylvania, 17055. 2. Calabrese & Sons, Inc. (`Defendant') is a Pennsylvania corporation with its • principal place of business located at 406 Brandy Lane, Mechanicsburg, Pennsylvania 17055. 3. On June 7, 2004, Defendant entered into an amended and restated Line of Credit Promissory Note (the "Note") with Plaintiff and agreed to, among other things, pay Plaintiff the sum of "5300,000 or such sum as may be advanced and outstanding from time to time with interest." Attached hereto as Exhibit A and incorporated herein by reference is a true and correct copy of the Note executed by Defendant. 4. On August 10, 2004, Plaintiff accelerated all sums due and owing under the Note and Defendant has refused to pay all indebtedness due thereunder. 5. Defendant has defaulted under Note as follows: (a) failing to pay interest when due pursuant to 111(a); failing to make principal and/or interest payments to Commerce Bank or M&T Bank pursuant to ¶ 1 I (c); generally failing to pay its debts as they become due pursuant to is IS 111(gxi) and failing to pay all indebtedness due after acceleration pursuant to ¶ I I (b) (collectively the "Events of Default'). 6. The Note provides that Plainti$ after the Events of Default have occurred, may confess judgment against Defendant for all sums due and owing under thereunder. 7. The total sums due and owing under the Note as of August 10, 2004 are itemized as follows: Principal $317,061.54 Interest $ 6,507.56 Total: $3239569.10* *along with interest acerning at the per diem rate of $81.47, costs of soft, costs and reasonable attorney fees for costs of collection until paid in full. 8. All conditions precedent have been satisfied to allow Plaintiff to confess • judgment against Defendant under the Note. 9. Judgment has not been confessed against Defendant in any other jurisdiction under the Note. 10. Plaintiff is the holder of the Note. 11. The Note was executed and delivered in connection with a commercial transaction and judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. WHEREFORE, Hanover Associates requests this Court to enter judgment by confession against Calabrese & Sons, Inc. in the amount of $323,569.10 along with interest accruing at the per diem rate of $81.47 following August 10, 2004, costs of suit, costs and reasonable attorney fees • 0 for costs of collection until paid in full. Respectfully submitted: M S LLC Date: August 10, 2004 By J P. DeMgelo homey LD. No. 62377 100 Pine SbW P. O. Box 1166 Hanisburg, PA 17108-1166 (717) 237-5357 (717) 237-5300 fax Attorneys for Hanover Associates • 0 VERIFICATION Subject to the penalties of 18 Pa. C.S.A. § 4904, relating to unworn falsification to authorities, I, David G. Fisher, hereby verify that I am the general partner for the limited partnership known as Hanover Associates, authorized to file this verification an behalf of Hanover Associates and that the facts set forth in the foregoing Complaint for Confession of Judgment are true and comet to the best of my knowledge, information slid belief. David G. Fisher 9 LINE OF CREDIT PROMISSORY NOTE (Amended and Restated) $300,000.00 October 20, 2003 Amended and Restated June I , 2004 Calabrese & Sons, Inc. 406 Brandy Lane Mechankxburg, PA 17055 (Borrowed') Hanover Associates 311 East Elmwood Avenue Mechanicsburg, PA 17053 ("Lender") Bon over hereby promises to pay to the order of Lender, In lawful money of the United States of America, at its address Indicated above or wherever else Lender may specify, the sum of Three Hundred Thousand and 00/100 Dollars ($300,000.00) or such sum as may be advanced and outstanding from time to time with Interest on the unpaid principal balance at the rate and on the terms provided in this Una of Credit Promissory Note (induding all renewals, extensions or modifications hereof, this "Note") ON DEMAND by Lender upon which all principal, interest and other charges outstanding hereunder shall be paid in full. INTEREST RATEIREPAYMENT. a. Interest on the outstanding and unpaid principal balance shall be calculated for the actual number of days In the then current calendar year that principal Is outstanding over a year of three hundred sixty (380) days, and shall accrue and be paid at the Prime Rate plus 2% (the "Interest Rate7. For the purposes hereof, the term "Prime Rate" shall mean the rate of interest per annum from time to time set forth as national prime In the Money Rates section of the Wall Street Jouma/. Such rate of Interest shalt change automatically and simultaneously upon the Wall Street JoumaPs designation of any change In such reference rate. b. Interest on the outstanding principal balance shall be payable monthly. r • a DOWN Rats: Anything in this Note to the contrary notwithstanding, during the existence of any Event of Default hereunder, all Advances hereunder shag bear interest from the date due until paid In full at a Wiper annum equal to the Prime mate plus five percent (5.096) (the "Default 2. LINE OF CREDIT ADVANCES. Borrower may borrow, repay and reborrow, and Lender may advance and madvance under this Note respectively from time to time until the maturity hereof (each an "Advance" and together the "Advances") on an offering basis only and at the sole discretion of Lender. As of the date of each proposed Advance, Borrower shall be deemed to represent that each representation made in the Loan Documents (as defined In Section 7 below) is true as of such date. 3. PURPOSE. Advances pursuant to this Note shall be used solely for the Borrower`s short-term working capital needs and equipment acquisitions (leases or sales by Lender to Borrower) to support Borrower's operations. 4. Intentionally omitted 5. APPLICATRN OF PAYMENTS. Monies received by Lender from any source for application toward payment of the obligations (as defined in Section 7) shall be applied to accrued interest, principal and then to late charges, If any. If an Event of Default occurs, monies may be applied to the Obligations In any manner or order deemed appropriate by Lender. If any payment received by Lender under this Note or other Loan • Document Is rescinded, avoided or for any reason returned by Lender because of any adverse claim or threatened action, the reWmed payment shall remain payable as an obligation of ail persons liable under this Note or other Loan Documents as though such payment had not been made. a. COLLATERAL. To secure the full and complete payment and performance of the Obligations, Borrower has granted to the Lender a perfected security interest in all of its right, title and interest in aft personal property owned by Borrower or hereafter acquired, as more fully described in the Security Agreement of even date herewith between Borrower and Lender (the "Security Agreement"). including, without limitation, alt accounts, Inventory, equipment, furniture, fbciunes, contract rights, general intangibles, deposits, goods, letters of credit, securities, money, documents, instruments, investment property, chattel paper, permits, intellectual property, Intercompany debt and licenses; provided that with respect to contract rights. licenses and permits which according to their terms are not assignable, such liens shah not be required to attach to such property. In connection with, and in addition to the foregoing, the Borrower shall execute arWor deliver such security documents, induding the Security Agreement and further agreements, documents and instruments (including, without limitation, financing statements) as the Lender may reasonably require in order for it to obtain and maintain the perfected security interest to be granted herein. 7. LOAN DOCUMENTS AND OBLIGATIONS. The term "Loan Documents" used In Ws Note and other Loan Documents refers to all documents executed in connection with the loan evidenced by this Note and may include, without imitation, this Note, the CJ Security Agreement, security instruments, financing statements and mortgage instruments whenever any of the foregoing are executed. The tern "Obligations" used in this Note refers to any and all Indebtedness and other obligations under this Note and all other obligations under any other Loan Document(s). a. LATE CHARGES. If any payments are not made within 15 days of when due, Borrower shall also pay to tender a late charge of five cents ($.05) for each dollar so overdue. Acne by Lender of any late payment without an accompanying late charge shall not be deemed a waiver of tender's rights to collect such late charge or to collect a late charge for any subsequent late payment received. 9. ATTORNEYS' FEES AND OTHER COLLECTION COSTS. Borrower shag pay all of Lender's reasonable expenses incurred to enforce or collect any of the Obligations, including, without limitation, reasonable arbitration, paralegals', attorneys', and experts' fees and expenses, whether Incurred without the commencement of a suit, in any trial, arbitration, or administrative proceeding, or in any appellate or bankruptcy proceeding. 10. USIFRY. If at any time the effective interest rate under this Note would, but for this paragraph. exceed the maximum lawful rate, the effective interest rate under this Nate shah be the maximum lawful rate, and any amount received by Lender in excess of such rate shall be applied to principal and then to fees and expenses, or, if no such amounts are owing, returned to Borrower. 11. EVENTS OF DEFAULT. Any one or more of the following events shall constitute an Event of Default: is a. The Borrower falls to pay on the date on which the same is due and payable (i) any payment required under this Note; (11) any fees, costs, expenses or other payments required by this Note to be paid by the Borrower, or (ill) any fees, costs, expenses or other payments required by any other Loan Documents to be paid by the Borrower, b. The Borrower fails to perform or observe any other term, covenant agreement or condition in this Note, or any of the other Loan Documents; C. The Borrower shall fait to pay when due any principal or interest payable for money borrowed, or amounts owed by It under any operating lease. or it shall suffer to exist any other event of default under the terms and conditions of any indenture, mortgage, loan agreement, evidence of indebtedness or capital lease, Including but not limited to. that owed by Borrower to either M$T Bank or Commerce Bank, its successors or assigns, all the foregoing involving in the aggregate a material liability of the Borrower, which shall not be remedied within the period of time (if any) within which such agreement permits such default to be remedied; -3- C] d. The validity, binding nature of, or enforceability of any material terra or provision of No Mote or any of the Loan Documents Is disputed by, on behalf of, or In the right or name of the Borrower or any material term or provision of this Note or any such Loan Document is found or declared to be Invalid, avoidable or non-enforceable by any court of competent jurisdiction; e. Any financial statement of the Borrower or any warranty or representation made by the Borrower In this Note or any other Loan Document or in any certificate or other writing delivered under or pursuant to this Note or any other Loan Document, or In connection with any provision of this Note or related to the transactions contemplated hereby shall prove to have been false or incorrect or breached, in any material respect on the date as of which made; f. A final judgment or judgments is entered, all or part of which I$ uninsured, or an order or orders of any judicial authority or governmental entity is issued against the Borrower (such judgment(s) and order(s) hereinafter collectively referred to as "Judgment") p) for payment of money, which Judgment, in the aggregate, constitutes a material liability of the Borrower; or (ii) for injunctive or declaratory relief which will have a material adverse effect on the Bonower, and such Judgment Is not discharged or execution thereon or enforcement thereof stayed pending appeal, within thirty (30) days after entry or issuance thereof, or, in the event of such a stay, such Judgment Is not discharged within sixty (60) days after such stay expires; • g. 1. The Borrower becomes Insolvent and generally falls to pay, or admits In writing its inability to pay its debts as they become due or applies for, consents to, or acquiesces in, the appointment of a trustee, receiver or other custodian for the Borrower, or a substantial part of Us property, or makes a general assignment for the benefit of creditors; If. The Borrower commences any bankruptcy, reorganization, debt arrangement or other case or proceeding under any state or federal bankruptcy or Insolvency law, or any dissolution or liquidation proceeding; ill. Any bankruptcy, reorganization, debt arrangement or other case or proceeding under any state or federal bankruptcy or Insolvency taw, or any dissolution or liquidation proceeding, Is involuntarily commenced against or in respect of the Borrower and such proceeding remains undismissed for a period of sbdy (60) days, or an order for relief Is entered in any such proceeding; iv. A trustee, receiver or other custodian is appointed for the Borrower or a substantial part of its property. _4.. • h. There shall occur any Default or Event of Default, as defined In the Loan Documents, or under any other documents s*fendng any other obligations of the Borrower to the Lender, including without limitation, under that agreement of sale and lease agreement (I) dated July 12, 2002 (Lodge & Shipley Lathe S/N 50100), or (11) dated June 27, 2002 (Tinfus Ofsen Elec tr+omatic Torsion Testing Machine SINN 51126). 12. REMEDIES UPON DEFAULT, If an Event of Default has occurred and is continuing uncured, the Lender may, In Its sole discretion, but shall not be obligated to () by notice to the Borrower declare the principal amount of all Obligations then outstanding, together with all Interest accnred and unpaid thereon, to be immediately due and payable whereupon such amounts shall be immediately due and payable, and the Borrower shall be obligated to reimburse the Lender pursuant to this Note for aN amounts payable by the Borrower hereunder, shall be forthwith due and payable, and the same shaft thereupon become due and payable without demand. presentment, protest or further notice of any ", all of which are hereby expressly waived, and/or (ii) exercise all of Its rights and remedies under the Loan Documents, (ill) all of the obligations of the Borrower to the Lander. either under this Note or otherwise, will immediately became due and payable without further demand, notice or protest, all of which are hereby expressly waived: and/or (iv) the Lender's commitment to make fa=ther Ioa ns corder this Note or any other agreement with the Borrower will immediately cease and terminate. 13. CONFESSION OF JUDGMENT. THE FOLLOWNNG PARAGRAPH SETS FORTH A WARRANT OF ATTORNEY FOR ANY ATTORNEY TO CONFESS JUDGMENT • AGAINST BORROWER. IN GRANTING THIS WARRANT OF ATTORNEY TO CONFESS JUDGMENT AGAINST BORROWER, THE BORROWER, FOLLOWING CONSULTATION WITH (OR DECISION NOT TO CONSULT) SEPARATE COUNSEL. FOR 130RROWER AND WITH KNOWLEDGE OF THE LEGAL. EFFECT HEREOF, HEREBY KNOWINGLY, INTENTIONALLY, VOLUNTARILY, INTELLIGENTLY AND UNCONDITIONALLY WANES ANY AND ALL RIGHTS THE BORROWER HAS OR MAY HAVE TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE CONSTI UTIONS AND LAWS OF THE UNITED STATES OF AMERICA, COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE INCLUDING, WITHOUT LRWTATION, A HEARING PRIOR TO GARNISHMENT AND ATTACHMENT OF THE BORROWER'S BANK ACCOUNT AND OTHER ASSETS. BORROWER ACKNOWLEDGES AND UNDER STANDII THAT BY ENTERING INTO THIS NOTE CONTAINING A CONFESSION OF JUDGMENT CLAUSE THAT BORROWER IS VOLUNTARILY, INTELLIM TLY AND KNOWINGLY GIVING UP ANY AND ALL RIGHTS, INCLUDING CONSTITUTIONAL F4GM, THAT BORROWER HAS OR MAY HAVE TO NOTICE AND A HEARING BEFORE JUDGMENT CAN BE ENTERED AGAINST BORROWER AND BEFORE THE BORROWER'S ASSETS, INCLUDING, WITHOUT LIMITATION. ITS BANK ACCOUNTS, MAY BE GARNISHED, LEVIED, EXECUTED UPON AND/OR ATTACHMENT SHALL RENDER THE PROPERTY GARNISHED, LEVIED, EXECUTED UPON OR ATTACHED IM1EMATEL.Y UNAVAILABLE TO BORROWEIL IT 18 SPECIFICALLY ACKNOWLEDGED BY BORROWER THAT THE LENDER HAS RELIED ON THIS WARRANT OF ATTORNEY AND THE RIGHTS WANED BY BORROWER HEREIN IN -5- • RECEIVING THIS NOTE AND AS AN INDUCEMENT TO GRANT FINANCIAL. ACCOMMODATIONS TO THE BORROWER. If an Event of Default occurs under this Note or any other Loan Documents, Borrower hereby authorizes and empowers any attorney of any court of record or the . prothonotary or clerk of any county in the Commonwealth of Pennsylvania, or in any jurisdiction where permitted by law or the clerk of any United States District Court, to appear for Bonower in any and all actions which may be brought hereunder and enter and confess judgment against the Borrower in favor of the Lender for such sums as are due or may become due hereunder or under any other Loan Documents, together with costs of suit and actual collection costs including, without limitation, reasonable attomeys' fees, with or without declaration, without prior notice, without stay of execution and with release of all procedural errors and the right to Issue executions forthwith. To the extent permitted by law, Borrower waives the right of inquisition on any real estate levied on, voluntarily condemns the same, authorizes the prothonotary or cleric to enter upon the writ of execution this voluntary condemnation and agrees that such real estate may be sold on a writ of execution; and also waives any relief from any dement, stay or exemption law of any state now in force or hereafter enacted. Borrower further waives the right to any notice and hearing prior to the execution, levy, attachment or other type of enforcement of any judgment obtained hereunder, including, without limitation, the right to be notified and heard prior to the gamishment, levy, execution upon and attachment of Borrower's bank accounts and other property. If a copy of this Note verified by affidavit of the Lender shall have been filed in such action, it shag not be necessary to file the original thereof as a warrant of attorney, any practice or usage to the contrary notwithstanding. The authority herein granted to confess judgment shall not be exhausted by any single exercise thereof, but shall continue and may be exercised from time to time as often as the Lender shag find it necessary and desirable and at all times until full payment of all amounts due hereunder and under any other Loan Documents. The Lender may confess one or more judgments in the same or different jurisdictions for all or any part of the Obligations arising hereunder or under any other Loan Documents to which Borrower is a party, without regard to whether judgment has theretofore been confessed on more than one occasion for the same Obligations. In the event that any judgment confessed against the Borrower is stricken or opened upon application by or on behalf of Borrower or any obligor for any reason, the Lender Is hereby authorized and empowered to again appear for and confess judgment against Borrower for any part or all of the Obligations owing under this Note and/or for any other liabilities, as herein provided. 14. WAIVERS AND AMENDMENT. No waivers, amendments or modifications of this Note and other Loan Documents shall be valid unless in writing and signed by the Lender. No waiver by Lender of any Event of Default shall operate as a waiver of any other Event of Default or the some Event of Default on a future occasion. Neither the failure nor any delay on the part of Lender in exercising any right, power or remedy under this Note and other Loan Documents shall operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or remedy. e • Borrower and any person gable under this Note waives presentment, protest, notice of dishonor, demand for payment, notice of intention to accelerate maturity, notice of acceleration of maturity, notice of sale and all other notlow of any kind. Further, each agrees that Leader may extend, modify or renew this Note or make a novation of the loan evidenoed by this Note for any period and grant any releases, compromises or indulgences with respect to any collateral securing this Note, or with respect to any other Borrower or any other person liable under this Note or other Loan Documents, all without notice to or consent of each Borrower or each person who may be Nable under this Note or other Loan Documents and without affecting the lability of Borrower or any person who may be liable under this Note or other Loan Documents. 15. MISCELLANEOUS PROVISIONS. Assignments. This Note, and other Loan Documents shall inure to the benefit of and be binding upon the parties and their respective heirs, legal representatives, successors and assigns. Lender's Interests In and rights under this Note and other Loan Documents are freely assignable, in whole or in part, by Lender. In addition, nothing in this Note or any of the Loan Documents shall prohibit lender from pledging or assigning this Note or any of the Loan Documents or any interest therein to any Federal Reserve Bank. Borrower shall not assign its rights and interest hereunder without the prior written consent of Lender, and any attempt by Borrower to assign without Lender's prior written consent is null and void. Any assignment shat not release Borrower from the Obligations. Applicable Law; Conflict Between Documents. This Note and other Loan Documents shall be governed by and construed under the laws of the Commonwealth of . Pennsylvania without regard to conflict of laws principles. Jurisdiction. Bones irrevocably agrees that any suit, action or proceeding arising under or with respect to this Note will be instituted In the Court of Common Pleas of Cumberland County, Pennsylvania, or the United States District Count fnr the Middle District of Pennsylvania, and irrevocably and unconditionally submits to the jurisdiction of each such Court for such purpose. Severabllity. If any provision of this Note or of the other Loan Documents shall be prohibited or invalid under applicable law, such provision shall be ineffective but only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Note or other such document. Notices. Any notices to Borrower shall be sufficiently given, if in writing and mailed or delivered to the Borrower's address shown above or such other address as provided hereunder, and to Lender, If in writing and mailed or delivered to Lender's address shown above or such other address as Lender may specify in writing from time to time. In the event that Borrower changes Borrower's address at any time prior to the date the Obligations are paid in full, Borrower agrees to promptly give written notice of said change of address by registered or certl ied mail, return receipt requested, all charges prepaid. 0 -7- Plural; Captions. All references in the Loan Documents to Borrower, person, document or other nouns of reference mean both the singular and plural form, as the case may be, and the term 'person- shall mean any individual, person or entity. The cations contained in the Loan Documents are inserted for convenience only and shall not affect the meaning or interpretation of the Loan Documents. Binding Contract. Borrower by execution of and Lender by acceptance of this Note agree that each party is bound to all terms and provision of this Note. Fees and Taxes. On or before the date hereof, Borrower shall pay all costs, expenses and fees (including, without limitation, insurance, environmental assessment, searches, reoon:lIng and reasonable attomeys' fees) associated with this transaction. Borrower shall promptly pay all documentary, recordation and/or similar taxes on this transaction whether assessed at dosing or arising from time to time. 16. INSURANCE. Borrower shall cause to be provided and maintain continuously such Insurance coverage and policies as are normally carried and maintained by companies engaged In the same or similar business to those operated by the Borrower. All liability policies of insurance shall name the Lender as an additional insured and all property insurance policies shall name the Lender as lender loss payee or mortgagee loss payee. The Lender shall have the exclusive right to receive the proceeds from such insurance and settle claims thereunder and while there shall be any obligation outstanding under this Note, the Lender shall have the exclusive right to direct the use of such proceeds. The original or a copy of each policy or a certificate that the same has been • issued and is currently In effect shall be delivered to the Lender no later than the date of execution of this Note. 17. WAIVER OF JURY TRIAL. BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT TO A TRIAL BY JURY WITH REGARD TO A DISPUTE HEREUNDER OR UNDER ANY OF THE LOAN DOCUMENTS. BORROWER ACKNOWLEDGES AND AGREES THAT THIS SECTION IS A SPECIFIC AND MATERIAL ASPECT OF THIS NOTE AND THAT THE LENDER WOULD NOT EXTEND CREDIT TO THE BORROWER IF THE WAIVER SET FORTH IN THIS PARAGRAPH WAS NOT A PART OF THIS NOTE. 18. AMENDMENT AND RESTATEMENT. This Note amends and restates that Promissory Note dated October 20, 2003, drawn in the initial principal sum of $110,000, and all advances thereunder or otherwise from Lender to Borrower on or after October 20, 2003, and extending to this date. Such net advances outstanding on the date hereof are approximately $213,476.95. 0 -8- • • I? LJ IN WITNESS WHEREOF, Borrower, on the day and year first above written, has caused this Note to be executed under seal. Attest/Wibum: CALABRESE & SONS, INC. By. ??- N e: Joseph A. Calabrese tie: President Witness: C44*"' 1 4to?? For value received, the undersigned hereby personally guarantees as a surety payment of the above obligation In accordance with its terms and in such opacity agrees to the provisions of Section 14 of the above Note 4• (Seal) A. Calabrese -9- HANOVER ASSOCIATES, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. CALABRESE & SONS, INC., DEFENDANT : 04-3940 CIVIL TERM AND NOW, this 1A day of August, 2007, this matter having been called on a petition of Calabrese & Sons, inc., for a preliminarylspecial injunction, and the parties having reached an agreement to resolve the issue before the court today, IT IS ORDERED: (1) The Sheriffs sale scheduled for September 5, 2007, regarding the subject property, IS STAYED GENERALLY. (2) The scheduled settlement on the property shall proceed. Hanover Associates shall receive $50,000 of the proceeds at that settlement representing a partial payment of the amounts claimed by Hanover. (3) The net proceeds from the settlement shall be placed in escrow with the buyer's attorney. Those proceeds shall be released either upon a written agreement between the parties or after any final order following litigation. (4) The lien of the judgments and mortgages to be released as a result of the settlement on the property shall be paid in the same order from the escrow funds as they will no longer be liens against the property sold. (5) As to the dispute involving the total amount claimed by Hanover, Hanover shall provide to the opposing parties documentation of that amount not later than the UXlMBIT 043840 CIVIL TERM end of September, 2007. Calabrese shall similarly respond not later than fifteen (15) days thereafter with documentation of the total amount it claims. (6) If the dispute as to the amounts claimed is not resolved by the end of October, 2007, either party may seek a hearing before this judge to resolve that issue. vthristian J. Dabb, Esquire For Plaintiff A. Fitzsimons, Esquire in R. Fenslerrmacher, Esq For Dsfisndant hn M. Smith, Esquire I For Intervenor Sheriff :sal -2- 6 O M ?-i 'i 0j C t - i N cv ?n °v N 11 J:\wpwin\ClicntARSR Misc\Catabreee.JUDGMENT RELEASE.$323,569.I O.doc is HANOVER ASSOCIATES, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, : PENNSYLVANIA V. : NO. 2004-03940 CALABRESE & SONS, INC., :$323,569.10 Defendant : JUDGMENT IN FAVOR OF PLAINTIFF JUDGMENT RELEASE WHEREAS, Plaintiff entered a judgment against Defendant on August 10, 2004, to the docket number as referenced above; and WHEREAS, the Defendant is the owner of a certain parcel of land located in Mechanicsburg Boro and Hampden Township, Cumberland County, Pennsylvania more commonly known as 406 Brandy Lane; and WHEREAS, on April 2, 2006 Defendant filed a Preliminary/Final Subdivision Lot Consolidation Plan to Cumberland County Plan Book 92 Page 44 subdividing what was commonly known as 406 Brandy Lane into two separate lots shown on said Plan as New Lot 1 and New Lot 2; and • WHEREAS, in consideration of the Defendant partially satisfying the above-referenced judgment, Plaintiff has agreed to release the New Lot 2, as more fully described on Exhibit A attached hereto, from the lien and operation of the above-referenced judgment. NOW THEREFORE, HANOVER ASSOCIATES, Plaintiff in the above Judgment, does appear and acknowledge that she has this day received from CALABRESE & SONS, INC., the Defendant in the above Judgment, PARTIAL payment and satisfaction of the same, with interest and costs, and desires that this Judgment Release be entered upon the records thereof only as it effects the New Lot 2. New Lot 2 is hereby released from the lien, operation and effect of the said judgment. This Judgment shall, until satisfied of record, remain in full force and effect against the New Lot 1. And further, it does hereby authorize and empower the Prothonotary of said Court to appear for it and in its name and stead to enter the Judgment Release upon the record of said Judgment, as fully and effectually, to all intents and purposes as it could, were it present to do so. And for so doing this shall be your sufficient warrant of authority. IN WITNESS WHEREOF, the Plaintiff has caused these presents to be signed this day of June, 2006. ATTEST: HANOVER ASSOCIATES By: Po-vlvt 05. Its: c jq PLAINTIFF'S EXHIBIT • CUNNINGHAM & CHERNICOFF, P.C Robert E. Ch Sup. Ct. ID No. D P.O. Box 60457 Harrisburg, PA 17106-0457 (717) 238-6570 0 J:%wpwin\Clients\RSR Miac\Calabr=.JUDGMENT REL£ASE.S323,569,10.doc • COMMONWEALTH OF PENNSYLVANIA ) A SS. COUNTY OF .?JC1LC.c f1A- ) On this, the Q) 7?' day of 2006, before me, a Notary Public, the undersigned officer, personally appeared ?/??(,f/W known to me (or satisfactorily proven) to be the person whose name is subscribed as agent for HANOVER ASSOCIATES, and acknowledged that he/she executed the same as the act of his/her principal for the purpose therein contained. IN WITNESS WHEREOF, I hereunto set my_hand and official seal. a,??h? Public NOTARIAL BEAL JULIEANNE AMETRANO, Notary Public City of HaMsburg, PA Dauphin County MY Commission Expires Feb. 22, 2007 I ? LJ 10 • ALL THAT CERTAIN piece or parcel of land, situate, lying and being in Mechanicsburg Borough, Cumberland County shown as New Lot 2 on the Calabrese & Sons, Inc. Preliminary/Final Subdivision/Lot Consolidation Plan Recorded April 3, 2006 in the Cumberland County Recorder of Deeds Office in Plan Book 92 Page 44 to wit: BEGINNING at a point on the southern side of Brandy Lane at a 5/8 inch rebar with cap thence South 27 degrees 04 minutes 00 seconds East a distance of 376.89 feet to a point thence North 37 degrees 14 minutes 52 seconds East a distance of 509.19 feet to a point thence North 37 degrees 05 minutes 01 seconds East a distance of 66.58 feet to a point thence South 42 degrees 05 minutes 07 seconds East a distance of 179.93 feet to a point thence South 24 degrees 27 minutes 41 seconds East a distance of 490.52 feet to a point thence South 65 degrees 27 minutes 00 seconds West a distance of 593.70 feet to a point thence North 27 degrees 04 minutes 00 seconds West a distance of 744.09 feet to a point thence North 40 degrees 20 minutes 30 seconds East a distance of 54.16 feet to a point and place of BEGINNING. CONTAINING 7.628 acres more or less. 9 10 • Crdficate of Service AND NOW, this day of AAL 2006, I hereby verify that I have caused a true and correct copy of the foregoing Praecipe to be placed in the U.S. Mail, first class, postage prepaid and addressed as follows: Robert E. Chernicoff, Esquire 2320 North Second Street Harrisburg, PA 17110-1008 and hand-delivered to: David A. Fitzsimons, Esquire 10 East High Street Carlisle, PA 17013 Monica D. #rcher Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011 (717) 763-1383 • • cr T O • #A r w PLAINTIFFS EXHIBIT HANOVBR ASsoCIATBS, LP, IN THE COURT OF (COMMON PLEAS Plaintiff OF LUiU COUNTY, PENNSYLVANIA VS. No. 3940 CIVIL 2004 CAL.ABtESB Jt SONS, INC., Defendant CIM ACTION -.ASV In mlatim io the above nafeeeo m I Jadgmerrt„ forv%kw mcm ived, fire nmlaaigmd, with fire legd audw ty tD do m, hmby:eleases Boom the liar, effect and opaation of fire above jodgmont. ALL THAT CERTAIN tract of land known as Lot No. 1, Brandy Lana, partly in dw Towmhip of Hampden and partly in the Borough of lbteo6atica rtg County of Cumbartand and Commanweakh ofPmmsyhma, known m Tsar Parnel N0-10-22-0521-015. Provided, however, that nothing homm molmned shall affect such Jndgnmt or firs lien dwadarr its l gsl validity Wm or gpinst any othea: p nVwfy of D of is Comberla nd Crnmty, Pmmeylvania or elrewhere. This Judgement Mom is Mug weonted pa a -. - do an OWw of dw Court of Comm Plm of Cmbedmd C090% Paansyh?aaia, Mod August 2g, 2007. vraw j my hand and seal this %'&% - o: day of _ iL -, ^ w .2007. HANOVBR AssoaATES, LP Br Dates '0?"' p Wd : 0-- -? David G. Fldmi, timecal Partner -'W • AIL THAT CERTAIN bad of land with inola+avoameats tbaceon erected dtaete pKdy in Hsmpdw Township and pudy in the Bmvfth of Mee hmded bmg r"Awhmd Coanlyy. Pmmnayl nmk bounded and desoadbed aaoa+dwg to. the c&wx se ati Soma6 mac., Prelimt13U ina1 Snbd vwom/Lot CooMUdation Plan Pmpinp4by PeonTeas Baginombit Inc., dated November 16,200, and recorded in Cumbalaad Comay, Pamasy-Q'L Plan BodkA Page 44, as fallow: BIB4 at aaironpoia foemol o?n the dedicaoedrigbt?favay line of BandyLme (S0' raw) at &a wrtirwastam cww of lad now or f mnly of May Frimcw & Floyd F. Wawat; ttitenoe along said Lad of Woa w and land now or fi xmedy of William Ih Jr.-And Deborah 3. Shipmma. South 50 dgpws 34 minutes 52 ae=I& Bad 144.48 fw to an hon pin foj4 ffiaaice along said land of Shipman, as unopeped street, and lased no w or forma dy of S aph=F. & LaumL Si Awnie, Noah M dWm 3S.mianta O8 secoctds Paet435.00 hato zainmpin hv»t &am along an naropeced shve, land now or formerly af Ray lL .& Carol P. Moon, Bay Stmet (pavata). and land now or foaaady of ]affray T. at Laraine R. Pla nb& North 36 dayssi4 40 mdmrtau 48 seconds East 332.11 feet to a W1 pipe 6=4 thoence dlomg land now oe fm my ofthe United States of Amseodca, Sonde 31 &V w 45 mimft 01 wood East 1.080.42 fm to a P pipe fiW with =wrake; thomex along aaaea, South 65 deg= 41 minutes _40 seconds West 658.31 feat to an im p& tbtw* dumi a alooagNew Lot 2 as sot forth andw above Mnfeconeed Plant to fallowh* twee covrw sod distance : (1) Naath24 degrees 27 rnirtnta 41 seconds Weal 490.51 fat to as iron pin lbund; (2) Narth 42 dgpm 05 w a dw 07 smu& West 179.93 feat to amirmipin fatm?d; and (3) Sonoth 3y dcSrc a 05 nmra?oes 01 second Went 66.58 feet to an hm pin from d', fl=ee alas land now or Ocmedyrof lEWnW S. Nailor, Noah 50 d4PO 34 animates 52 seconds Writ 32526 feet 1o an noon pin Auad; thanes sloq8 said Briody Imo, Nat 39 dogrw 53 minoan 34 Seca ids Ea_ at 55.03 feet to an iron pia fmmd, the pow and pine of Be®i,m:i?g. BBINGNOw Lot 1 on the Calabnae dt Sats, Inc., PreliminnylPinat S'rtbdtwiam/I,ot Comoblidatiom Plan canfaiW ag 14.953 umes. C] • O ? N to 0 r ? L_J ?. PLAINTIFF'S EXHIBIT ? I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ? CIVIL DIVISION I HANOVER ASSOCIATES, Pbintiff V. No. 04-3940 - CALABRESE & SONS, INC., Defendant The Honorable Edge B. Bayley I /? A PROPORD ORDER AND NOW, thin @ day of April, 2008, upon consideration of the Plaintiff and Defendant's mutual agreement and Stipulation, it is hereby ORDERED and DECREED that: a) Calabrese and Sons, Inc. and Hanover Associates (collectively the "Parties') have agreed that 5220,000.00 of the esmowed fiords currently retained shall be released to Hanover Associates as the first lien holder in satisfaction of its first in line Note and Judgment, and remit the remainder of the balance in escrow to Virginia Calabrese as the next subsequent lien holder, b) The action docketed at 07-4085 be marked settled and discontinued with prejudice, and the actions docketed at 07-1040 and 074086 in the Court of Common Pleas for Cumberland County, will be marked settled and discontinued with prejudice. c) As peat of the settleaneut of the above listed Replevin Actions, Calabrese and Soros, Inc. will permit the removal of the equupment that is subject to the above reference replevin litigation, and Calabrese and Sons will permit the removal and loading of said equipment onto ft tucks supplied by Hanover Associates (rigging insurance, riggers, and all equipment necessary to remove the machines will be supplied by the Plaintiff). Said removal to occur within thirty (30) days of this Order. d) The Parties shall not commence any action pertaining to the remaining Sorrel Forge Note that is currently retained by Hanover Associates, prior to June 15, 2008. e) The remainder of the escrow is to be released to Virginia Calabrese next subsequent lien holder, and a calculation of said to the Plaintiff for the purpose of tracking the balance out t lien holder. 0 0 C] N r C-6 - sot ? v u? °' .gyp U IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION HANOVER ASSOCIATES, Plaintiff V. No. 04-3940 CALABRESE & SONS, INC., Defendant The Honorable Edgar B. Bayley AND NOW, this ,s " day of April, 2008, the Plaintiff, Hanover Associates and the Defendant, Calabrese and Sons, Inc. hereby stipulate as follows: 1. The Plaintiff and Defendant, (collectively "the Parties') agree to the release of $220,000.00 to Hanover Associates from the escrowed funds that are the subject of the current litigation. 2. In exchange the Plaintiff will release its current judgment action pertaining to the first judgment note which is the subject of the above captioned action. 3. In addition, the Plaintiff will release and discontinue its remaining actions captioned at 07-4085, 07-4086 and 07-1040. 4. The release and discontinuance of the 07-1040 replevin action listed in Paragraph 3 above, will require drat the Defendant will permit the removal and loading of a Tinius Olsen Electromatic Torsion Testing Machine with a serial number of 51126. Plaintiff will provide the trucks upon which the machines will be loaded, and Plaintiff will also provide riggers, rigging insurance and all equipment necessary to remove the machines. 5. The release and discontinuance of action docketed at 07 - 4086 will require that the Defendant will permit the removal and loading of a Lodge and Shipley 10=1"Vi) lift Lathe with a serial number of 550100. Plaintiff will provide the trucks upon which the machines will be loaded, and Plaintiff will also provide riggers, rigging insurance, and all equipment necessary to remove the machines. 6. This Stipulation and ultimate Court Order will in no way affect the rights and remedies of either party as it relates to the Plaintiffs second note - involving the Sorrel Forge Assignment. 7. The Parties agree that said equipment will be removed within thirty (30) days of Court Order that confirms present stipulation. Otherwise, the Defendant will be entitled to storage fees for retaining said properly. 8. The Plaintiff agrees to stay any action as it relates to the Sorrel Forge NotetJudgment until after June 15, 2008. WHEREFORE, the Parties would respectfully request that this Honorable Court r enter an Order consistent with said stipulation. Respe eftly Submitted, CGA /? clChristian J. IMbb, Esquire Supreme Court I.D. # 85370 135 North George St. York, PA 17401 (717) 848 - 4900 Fax: (717) 843 - 9039 6 Seth T. Mosebey, F.9&re Supreme Court I.D. #203046 Martson Deardorff Williams Otto Gilroy & Faller 10 East High Street Carlisle PA 17013 Telephone (717) 243-3341 Facsimile (717) 243-1850 iaon?swil S?n_S ?AaCG +e l<.rae? s '-#C,4-A-1 C ?« ~ rw:. !S'C C? ?w)N LL? i% Co-eL ? Qf U? a ?.6C11>. e+ L> Vt Z V C? !y + LUO -L4 2.ia?_ 2-11 1 7-. OR? J ?1 _?t '3 139 3 11 b ?' S 1 Q ? 5 b ?, ?Y "?{7t'1 s p J •3 (? s ') i Z'?? t ?? + ^(I .. a j i t P 4 i AINTI F F'S L t PL EXHIBIT { } " II t ?! T? - 11111 '- I :I •I`I ? Yi N LL. - r;tt R R Lx R R x R ?! R `p R S ?' N 1'I • N l0 n • T O .. .N. 1'1. e.. N ? A R r p R n p k ti A g R .. A A R R x R A R• T'.. RtH U i i 1 I ? I v M ? ?= i _ n r] "J' AM ti r r ?i W ' - I i f p I 6 M { 31 ?Y - _ yi I'• I 1 I FI ? I I r iI VI d M r N ?. r S ? ? Y N M M AT rA ? Q -Pf .D 1j .1' D 1 r cr - mm _. A ? 7 .6 1 FA t ,• .r - ' e)c - ?- h OTO ?- ! r Y - i ; i .. . -mu - - - I I _ c o? 'i I i - I I i L _ F I ?; N N ? ii l .r I J -GI ? eT l- /" _ r rr- r T ?,,, rT„ . S r 7 4A a - l l a?" 4 . _et T A .r- '? ' ? - - - - - - it - -- I ' _4 --?-4 D of I O i JI I i I (0I M MI >cl ?? #?, I 1 J I I J? ? i a I ? _ of ? Q 0 'j; i '2 " I f I . I I I 1 ! , ! I i I I I I ' 1 1 + I j I I i I i , I ' I aK SOREL FORGE CO., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. No. 05-1827 - CIVIL CALABRESE & SONS, INC., Defendant CIVIL ACTION - LAW PRAECIPE TO ADD TO RECORD TO THE PROTHONOTARY: By agreement of Counsel, please add the attached Plaintiff's Exhibit 16 and Plaintiff's Exhibit 17 to the deposition of David Fisher, dated June 9, 2009, and filed herein on July 9, 2009, to make them part of the record in this action. Date: August 21, 2009 "ZZ3?, Marlin R. cCaleb, Esquire Attorney I.D. No. 06353 219 East Main Street P.O. Box 230 Mechanicsburg, Pennsylvania 17055 (717) 691-7770 Attorney for Hanover Associates, Plaintiff's Assignee MARTSON LAW OFFICES By: ss.( Sk Seth T. Mosebef, Esquire Attorney I.D. No. 203046 10 East High Street Carlisle, Pennsylvania 17013 (717) 243-3341 Attorneys for Calabrese & Sons, Inc., Defendant LAW OFFICES MARLIN R. McCALEB '_ ;; lartia?i?te ?iot'+.'?c.l_ uv+C'G l7a+a ?rZMM C, FA+..F1h?'7i:4? ?l Prepared By f ?- - t Approved By .._--_-_. _. - .-------------- ' 7 1 2. 3 C I too -_. t !3 39 6?ii I ?8 ?`to L'i't 3 ? Zg I 2 a Zao? ZI'(? ','? '1? 5 rt I'll °t t ` 6 t "t e i ! r f 2 A 4 ,?o lib `t 4 I i 4 5 2.©OQ ?`t ?biUi'd;`ifl f i? S? ?1? ;=k :•,? i ?2. "? ?{o?I i7? i ? I ! 3 j i I 6 i I ? `?' i! 7 8 I ! I ': f! i i I I I' j M I I I i ' I ? ,? I r i! s - ? - - ! i [ I F ; 14 11 $ J ? ? ? I I ! j 12 1 I I i j ! ? I t ! 12 13 y 13 14 1 \ EALc- "?E r7 1 1 .44 , df d 2;=s j 14 15 ' 4 ( I I j j 15 1s x.'7 ?t.,? cros-r o du. -i?u a ate-©? I i f 16 13 17 19 I - - i j { 19 29 I ! j 20 21 21 22 ` I f 23 ; ? - -?- - - r- r- I -- i- - I I J 24 5 - --- __ -- -- - - ! - - } - i I I 7A 2 4 25 26 26 27 -- 27 28 - -- -' - - --? ! ? I ? 26 19 I - - 29 j 36 31 _ I I ! I ; 31 32 I ! I 33 j i - f rt 32 34 -1-- --- 33 --- ' 34 35 ' 35 PLAINTI FF S ;s EXHIB IT I ' 36 tp 37 7$ 30 39 --- - - ----- _ , j 40 N 8 M- LL. a C) R S R A p A 10 !E R R i0 R p R x g x R A R 9 ` I 1 l ?sT'lel rI I - I - I ? 1 i I I I 1 I V •J? . I I - S I r T v ? M. _ U, i d J o o n r r P. J )• O J rO M TD . aO O 'r >• O ? r M ..+ M to T .D P t J P y- r ? r T M? P ? r . ?.1 j7 t o .0 O r P n r .J _ - ., O J 0 o f f I r J ' 'r ^ o =? 'r ?+ ;o ,JC r = r r a o O j op C. o p r v' . ' VI p s r r - r N - A ^ ?? I a r f T r T 1 31 :r .71 71 3rl ) T T lA - M J v fr I -+ r Ir - rr- '? tr _ n v~, r+ ?.. d ?. r .++ .. s P o- ,D N , Cr r ae .r- JD vl I _ eN M low . I - J C- P D N l do t - - W 1 I Ift ! ?^ 0 C' 0 T • T o C o - O ,O 0 J p - O .I O O N 0 g a N1 0 J ?(t f p o • 14lP ?P 0 I- 0 rl J r0 J M = e- r -- 3 { J F J V - - - - - - 1 J N .? N N 1? 11 -1 _M _M M ..! N f 1 r, r I { i 4 I{ - H r r O u r O 2' e- - N N ? :+ N .Y+ r N "? - - - - - _ ' 41 d I I - I FT ?* I 0 - D O - ' p - O - 0 p G - 0 C o o p 0 O O 0 G - • - 0 e - O ?• r f^ r I r-' r i F T t• T t T r f r r r IL 7 IV1 - r o- e- n u .{ ?I .. n r ., .. .n v .n .. .. .. ... _Aa _ _a .? - _ _'a IA - - - T1.. U C? = - R F p A IC R F R A R >; Ft A x IC K R R R S 1717 i I _ I i I M to Y ,00 i v ??= r Y M r T M ?i1 1 s Pi U /f1 3, v giv 0160 r?i r r i L- k- I I F 1 I .J r S aD Y rn 00 p 010 51 ?j „, i -CL If" -W j ki ; - - -?-- - I ? - 1 1 _ I t i i . -1-.._j Zli, F{LEG-1 , -?L; _ OF 1ffiC F"="." GARY 2909 AUG 21 Al i0: 41 11 F:TILES\Cfients\11093 Calabrese\11093.2.pra4 Seth T. Mosebey, Esquire I.D. No. 203046 David A. Fitzsimons, Esquire I.D. No. 41722 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendants SOREL FORGE CO., Plaintiff V. CALABRESE & SONS, INC., Defendant To the Prothonotary: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-1827 CIVIL ACTION - LAW PRAECIPE Please make the attached Deposition Transcripts part of the record in the above-referenced matter. MARTSON LAW OFFICES By J? Seth T. Mosebey, EsquirlY I.D. No. 203046 David A. Fitzsimons, Esquire I.D. No. 41722 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant Date: August 20, 2009 CERTIFICATE OF SERVICE I, Seth T. Mosebey, an authorized agent for Martson Law Offices, hereby certify that a copy of the foregoing Praecipe was served this date by hand delivery upon: Marlin R. McCaleb, Esquire 219 East Main Street P.O. Box 230 Mechanicsburg, PA 17055 MARTSON LAW OFFICES By:,, Seth T. Mosebey, Esq e Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: V Zo/09 1 i E SOREL FORGE CO., . Plaintiff, . VS. . CALABRESE & SONS, INC.,: Defendant. . IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2005-1827 COPY • DEPOSITION OF: TAKEN BY: JOSEPH CALABRESE Defendant BEFORE: Jennifer Chance Court Reporter - Notary Public DATE: June 9, 2009 at 9:41 a.m. PLACE: Martson Law Offices 10 East High Street Carlisle, Pennsylvania APPEARANCES: LAW OFFICES OF MARLIN R. McCALEB BY: MARLIN R. McCALEB, ESQ. FOR - PLAINTIFF MARTSON LAW OFFICES BY: SETH T. MOSEBEY, ESQUIRE FOR - DEFENDANT • ALSO PRESENT: David Fisher ntr is rt Reporting Services 0-863-3657 • 717-258-3657 • 717-258-0383 fax courtreporters4u @aoL com • • • 3 1 STIPULATION 2 It is hereby stipulated by and between the SOREL FORGE CO., IN THE COURT OF COMMON PLEAS 3 respective parties that signing, sealing, certification Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA 4 and filing are waived vs. CIVIL ACTION - LAW . NO. 2405-1827 CALABRESE 6 soes, xNC.,: 5 MR. McCALEB: In the event of an objection to Defendant. 6 any question, the objection will be stated for the record, 7 the witness will proceed to answer subject to the 8 objection, and then the court can rule on the objection DEPOSITION OF: JOSEPH CAIABRZSR 9 when the court reviews the testimony. TAKEN BY: Defendant 10 JOSEPH A. CALABRESE, called as a witness, being BEFORE: Jennifer Chance Court Reporter - Notary Public 11 duly sworn, was examined and testified as follows: DATE: June 9, 2009 at 9:41 a.m. 12 EXAMINATION PLACE: Mattson Law Offices 10 East High street 13 BY MR. MOSEBEY: Carlisle, Pennsylvania 14 Q. Have you ever been deposed or testified before? APPEARANCES: 15 A. Yes. LAW OFFICES OF MARLIN R. MCCALEB BY: MARLIN R. McCALEB, ESQ. FOR - PLAINTIFF 16 Q. And let me shorten this: Did you hear the MARTSON LAW OFFICES 17 instructions that I gave to Rick Riggleman? BY: SETH T. MOSEBEY, ESQUIRE FOR - DEFENDANT 18 A. Yes. ALSO PRESENT: 19 Q. Do you agree to abide by the same instructions? David Fisher 20 A. Yes. 21 Q. Please state your name. 22 A. Joseph Calabrese. 23 Q. And where are you currently employed? 24 A. Calabrese & Sons. 25 Q. How long have you worked there? 2 1 INDEX TO TESTIMONY 4 1 A. 36 years. 2 DEPONENT EXAMINATION PAGE 2 Q. And what position do you currently hold with 3 JOSEPH A. CALABRESE by Mr. Mosebey 3,16 3 the company? by Mr. McCaleb 12 4 4 A. President, owner. 5 Q. How long, approximately have you served in 5 , 6 that capacity? 6 7 A. Probably eight or nine years. 7 8 Q. Are you familiar with Mr. Fisher who is sitting 8 9 here across the table from you? 9 10 A. Yes. 11 Q. Are you familiar with Hanover Associates? 10 12 A. Yes. 11 INDEX TO EXHIBITS 13 Q. What is your understanding of Hanover 12 NO. DESCRIPTION PAGE 14 Associates' business? 13 1 Promissory Note 15 15 A. Oh, I just knew that Dave was employed with the 16 tire business down in Hanover. I assume that was Hanover 14 17 Associates. But that burned to the ground or something a 15 18 few years ago. 16 19 Q. To your knowledge, does Mr. Fisher have a 17 20 position with Hanover Associates? 18 21 A. He is the owner or general managing partner or 19 20 22 something to that effect. 21 22 23 Q. When did you first become acquainted with 23 24 Mr. Fisher? 24 25 25 A. Somewhere back in the '50s. 1 of 8 sheets Page 1 to 4 of 18 06/28/2009 04:05:41 PM • • 5 7 1 Q. And in what context did you first become 1 from here to here and nobody knows what is going on. But 2 familiar with him? 2 we had a Board of Directors at the time, and they were -- 3 A. I lived in Mechanicsburg. It is just -- 3 information was going back and forth, and that's when I 4 Q. Have you known him the whole time since the 4 talked to Dave about he was looking for something to do, 5 '50s or whenever you first became familiar with him? 5 and I said, you know, I could use some help back there. 6 A. What do you mean have I known him the whole 6 Q. Who were your bookkeepers at the time at 7 time? 7 Calabrese & Sons? 8 Q. Have you stayed in touch with him? Were there 8 A. At that time, it was Chris Wampler when he 9 periods where you talked to each other and then periods 9 first started, and then Pat Maclean (phonetic), and then 10 where you didn't? 10 we went outside and got Pat Radonovich to start doing our 11 A. Yeah, there was times, periods of time that 11 tax returns and things like that for us. 12 went, years went by. I mean, I wasn't in the area for a 12 Q. And what was the hierarchy or employment 13 period of time. 13 relationship between those individuals and Mr. Fisher? 14 Q. At some point, did Mr. Fisher have a role with 14 A. He pretty much told them what to do. 15 Calabrese & Sons, Incorporated? 15 Q. Did Mr. Fisher eventually have other plans for 16 A. Yes. 16 Calabrese & Sons? 17 Q. And when was that? 17 A. I don't know if it was for just Calabrese & 18 A. Oh, it started I believe somewhere in 2002. 18 Sons. We were looking to try and see if we couldn't save 19 Q. And when did that end? 19 Calabrese & Sons, and we started talking about doing a 20 A. I think it was somewhere around 2005. 20 thing here to create another enterprise and move the 21 Q. What was Mr. Fisher's role with Calabrese & 21 contracts over and, you know, see how the thing would 22 Sons? 22 shape out. 23 A. He was helping me out with -- I would talk to 23 Q. And what was this plan to help, as you put it, 24 him about helping me out with the accounting problems that 24 I think, save Calabrese? 125 we were having back there originally. And from there it 25 A. Well, we were going to take most of the assets 6 8 1 went to, you know, putting money into the company. We I 1 of Calabrese and move them over to Brandy Lane 2 worked out some deals together. 2 Enterprises, save the federal supply code or the FSCM as 3 Q. Did you work with him or what was your working 3 it is called, and create Brandy Lane Enterprises, which 4 relationship while he was at Calabrese & Sons? 4 would take all the contracts. 5 A. Well, we pretty much talked on a daily basis 5 And we were going to leave Calabrese with 6 about things that were going on with the company and other 6 enough assets to handle whatever current debt that they 7 things in general. I mean -- 7 have so that it was an arm's length transaction and there 8 Q. What were his duties when he worked at 8 wasn't any -- look like you were trying to screw everybody 9 Calabrese? 9 transitioning the thing. 10 A. Well, he was handling all of the books, you 10 Q. What were the key assets of Calabrese & Sons 11 know, handling the accounting people, helping out with 11 that you anticipated transferring to Brandy Lane 12 getting things straightened out or trying to find out 12 Enterprises? 13 where we were financially. 13 A. Well, we were going to transfer all of the 14 Q. What was the state of your company when 14 government contracts, the machinery -- 15 Mr. Fisher first started working with you? 15 Q. Can you describe, for those of us who don't 16 A. What do you mean the state? 16 have the expertise, whether there was any special 17 Q. Financial state. 17 provisions you needed to make to transfer government 18 A. Probably relatively shaky. 18 contracts? 19 Q. Was he brought in to help remedy that? 19 A. Well, we had gone to the government to talk to 20 A. Yeah. He was brought in to help try to get 20 them about the possibility of doing this, and they sent us 21 things straightened out as far as what was going on with 21 the forms to novate the contracts, as they call it, over 22 the books. I mean, I was hearing one thing from the 22 to the new entity and keep the same FSCM. 23 accountants, we were going this way, and then the next 23 Q. What does novate mean or your understanding of 24 thing I know we were going that way. 24 the term? 25 And I said I don't understand how you can go 25 A. As far as I know, it means to transfer from one 06/28/2009 04:05:41 PM Page 5 to 8 of 18 2 of 8 sheets • • • 9 1 to the other. 1 2 Q. And to your knowledge, did the government give 2 3 you that permission? 3 4 A. Yes. 4 5 Q. Is there also a CAGE code involved with 5 6 Calabrese & Sons? 6 7 MR. McCALEB: I'm sorry, what was that? 7 8 MR. MOSEBEY: A CAGE code. 8 9 THE WITNESS: Federal supply for manufacturing 9 10 or FSCM, as they call it. 10 11 BY MR. MOSEBEY: 11 12 Q. What is the CAGE code? What does it allow you 12 13 to do? 13 14 A. Well, the government recognizes that CAGE code 14 15 as the company that is manufacturing the products for 15 16 them. That's how they identify you. 16 17 Q. Is that something that you consider to be an 17 18 asset of Calabrese & Sons? 18 19 A. Yes. 19 20 Q. Would that have been transferred to the new 20 21 entity? 21 22 A. Yes. 22 23 Q. To your knowledge, who was intended to be 23 24 involved in the new entity? 24 25 A. In the new entity it was supposed to be Rick 25 10 1 Riggleman, my son Joey, Dave Fisher, and myself. 1 2 Q. Were there specific roles that each of you were 2 3 going to play? 3 4 A. None of that had been really hashed out, per 4 5 se. I mean, we were still in the infancy stages of trying 5 6 to get it organized. Joey had gone down to see Lisa 6 7 Coyne, and she had drawn up incorporation papers for the 7 8 thing, and that's about as far as it went, I believe. 8 9 Q. Is Lisa Coyne the attorney then that drafted 9 10 the corporate documents? 10 11 A. Yes. 11 12 Q. For Brandy Lane Enterprises? 12 13 A. Yes. 13 14 Q. Who sought her advice in setting up the 14 15 corporation? 15 16 A. My son Joey. 16 17 Q. And why did he seek her advice? 17 18 A. Dave Fitzsimmons recommended he get outside 18 19 legal counsel to do that. 19 20 Q. Do you know why he made that recommendation? 20 21 A. Well, because David was the counsel for 21 22 Calabrese & Sons, and he didn't want to -- basically a 22 23 conflict of interest over that when we were doing that 23 24 transition. 24 25 Q. Did Mr. Fisher have counsel? 25 11 A. I believe he was talking to, what's it, McNees, Wallace & Nurick. Q. And where are they located? A. Harrisburg. Q. To your knowledge, was Brandy Lane Enterprises incorporated? A. Yes. Q. Is it still in existence today? A. Yeah, in name. Q. Has Brandy Lane Enterprises ever conducted business, to your knowledge? A. No. Q. Now I want to move to the Sorel Forge note which is the subject of this litigation. A. Okay. Q. Basically, tell me what you know about the Sorel Forge note. A. Well, we owed Sorel Forge about $259,000, whatever it was, and they called us up on the phone, somebody who represented Sorel, and said listen, we are willing to discount this thing for $100,000, do you want to make a deal. So you know, we were on the phone with them, Dave, myself, and the guy that was representing Sorel, and we talked about what we were going to do. And so the deal 12 was we give Sorel $100,000 and everything goes away, and then the $100,000 would stay with Calabrese & Sons. Q. Why did you owe Sorel Forge that amount of money? A. There was some forgings we had bought. Q. And who was involved in this phone conversation? A. It was Dave Fisher and myself, and I don't remember the man's name that was representing Sorel. Q. And how much was paid for the note? A. $100,000. Q. And was there an agreement regarding the $100,000? A. Yeah, the $100,000 would stay with Calabrese & Sons. The rest of the money was going to disappear, just like we had done with previous contractors. Q. Who paid the $100,000? A. Dave Fisher. Q. To your knowledge, was Calabrese & Sons, pursuant to the agreement, required to repay Mr. Fisher the money that he paid for the note? A. No. MR. MOSEBEY: I have no further questions. EXAMINATION BY MR. McCALEB: - o D1 M.- rdyt: 7 LU 14 UI 10 06/28/2009 04:05:41 PM • • • 13 15 1 Q. Mr. Calabrese, is Calabrese & Sons a 1 Q. Well, are you saying that it was your 2 corporation? 2 understanding the hundred thousand would not be paid to 3 A. Yes, sir. 3 Sorel? 4 Q. And who owns the shares of stock of Calabrese? 4 A. No, the hundred thousand was going to be paid 5 A. I do. 5 to Sorel. 6 Q. All of them? 6 Q. So that hundred thousand was not staying in the 7 A. Yes. 7 corporation. 8 Q. What about the shares that were owned by 8 A. All I meant by staying with the corporation was 9 Michael Calabrese? 9 that the money wasn't going to have to be paid back. 10 A. I own them also. 10 Q. Now, there actually was a note, was there not? 11 Q. As a matter of fact, wasn't there an agreement 11 A. That I don't know. 12 between the corporation and Michael for the corporation to 12 MR. McCALEB: I apologize. I didn't have a 13 buy his shares? 13 chance to mark these in advance because I didn't know what 14 A. That's correct. 14 I was going to be using. Let's mark this as Plaintiffs 15 Q. And the payment was to be made in monthly 15 Exhibit 1. 16 installments; is that correct? 16 (Plaintiffs Exhibit No. 1 was marked.) 17 A. Yes. 17 BY MR. McCALEB: 18 Q. Something over $6,000 a month? 18 Q. I am showing you what has been marked as 19 A. $6,250. 19 Plaintiffs Exhibit 1. Do you recognize that, 20 Q. $6,250. And didn't the agreement provide that 20 Mr. Calabrese? 21 those shares would be held in escrow until the full price 21 A. No. 22 was paid? 22 Q. Prior to the Sorel note, did Mr. Fisher invest 23 A. I don't really know. 23 other money in Calabrese? 24 Q. Has the full price been paid? 24 A. Yes. 25 A. No. 25 Q. And in fact, wasn't there a note given by 14 16 1 Q. Are you current on the monthly -- when I say 1 Calabrese to Mr. Fisher in 2004 for some of that money? 2 you, is the corporation current on the monthly payment? 2 A. What do you mean by a note given to? 3 A. Yes. 3 Q. A note from Calabrese & Sons to Mr. Fisher 4 Q. Does the corporation owe money to Virginia 4 promising to pay a certain sum of money. 5 Calabrese? 5 A. There may have been. 6 A. Yes. 6 Q. Do you not recall that now? 7 Q. She is your mother, isn't she? 7 A. No, sir. I'm not sure what we are talking 8 A. Yes. 8 about. 9 Q. Is the corporation current on those 9 MR. McCALEB: Okay. No further questions. 10 obligations? 10 MR. MOSEBEY: Redirect. I have a couple of 11 A. Yes. 11 follow up. 12 Q. Now, you have told us about the Sorel note. 12 FURTHER EXAMINATION 13 A. Okay. 13 BY MR. MOSEBEY: 14 Q. And that represents money that Mr. Fisher 14 Q. To your knowledge, Joe, why did Mr. Fisher 15 invested, right? 15 invest money in Calabrese & Sons? 16 A. Well -- 16 A. Well, Dave told me when we were doing this 17 Q. The hundred thousand? 17 thing that he would handle the finances and I should get 18 A. Yeah. 18 the contracts. So we were working as partners or friends 19 Q. Now, you indicated that your understanding was 19 to bail out the company. 20 that the hundred thousand would stay with the corporation; 20 That's pretty much where we were at. We were 21 what did you mean by stay with the corporation? 21 working on trying to, you know, save the company, save the 22 A. The monies would stay with Calabrese & Sons. 22 jobs for the people. You know, he said himself he was 23 We were in a position where we were getting ready to look 23 being a nice guy about the whole thing, he was going to 24 at transitioning stuff. Dave was looking at possibly 24 help out the company, and that's where we were going. 25 taking over the company. 25 Q. If any, what was the benefit to Calabrese & royc 1.3 LU 10 UT lt$ 4 of 8 sheets • • • 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Jennifer A. Chance, Court Reporter-Notary Public 5 of 8 sheets Sons of having $100,000 paid to Sorel Forge? A. Other than the fact that the Sorel Forge note wasn't there anymore, nothing. Q. Do you believe there was any benefit to Mr. Fisher in paying off that note? A. Yeah. If you are going to take over the company, there was. Q. And what was that benefit? A. You have less debt. Q. At some point, did Calabrese & Sons enter into a form of a line of credit with Hanover Associates? A. Yeah, we had some sort of deal worked out where we were rolling -- there was a rolling line of credit or something. Q. To your knowledge, has that obligation been fulfilled by Calabrese & Sons? A. Yeah, last year I believe everything was paid. MR. MOSEBEY: I have no further questions. MR. McCALEB: No questions. Ten o'clock. (The deposition concluded at 10:00 a.m.) 18 CERTIFICATION I, JENNIFER CHANCE, a Court Reporter - Notary Public authorized to administer oaths and take depositions in the trial of causes, and having an office in Carlisle, Pennsylvania, do hereby certify that the foregoing is the testimony of JOSEPH CALABRESE. I further certify that before the taking of said deposition the witness was duly sworn; that the questions and answers were taken down stenotype by the said Reporter-Notary, approved and agreed to, and afterwards reduced to computer printout under the direction of said Reporter. I further certify that the proceedings and evidence are contained fully and accurately in the notes taken by me on the within deposition to the best of my ability, and that this copy is a correct transcript of the same. In testimony whereof, I have hereunto inscribed my hand this 29th day of June, 2009. Page 17 to 18 of 18 06/28/2009 04:05:41 PM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 f J 18 C E R T I F I C A T I O N I, JENNIFER CHANCE, a Court Reporter - Notary Public authorized to administer oaths and take depositions in the trial of causes, and having an office in Carlisle, Pennsylvania, do hereby certify that the foregoing is the testimony of JOSEPH CALABRESE. I further certify that before the taking of said deposition the witness was duly sworn; that the questions and answers were taken down stenotype by the said Reporter-Notary, approved and agreed to, and afterwards reduced to computer printout under the direction of said Reporter. I further certify that the proceedings and evidence are contained fully and accurately in the notes taken by me on the within deposition to the best of my ability, and that this copy is a correct transcript of the same. In testimony whereof, I have hereunto inscribed my hand this 29th day of June, 2009. aenlnifer A. Chance, Court Reporter-Notary Public NOTARIAL SEAL Jennifer A Chance NOTARY PUBLIC Boro of Chembersburp, Franklin County My Commission Expires 08/3002011 04/04/2005 13:33 7172431650 • F.N[I.l:'3DAT?YRECMt??P?w7?1110?.SJ?Mt $ 245,288.59 EXHIBIT f CJ MDWO PRONMORY NOTE a-- le';o 6?j PAGE 03/10 Dated: March 25, 2W5 Cumberland County, Pennsylvania PROMISE TO PA'S': FOR VALUE RBCBIVBD, CALABRESE & SONS, INC., a Pennsylvania corporatiou with a businoss address ofP.O. BOX 1667 406 Brz dy Lace Madraaicsburg, PA 17()55 ( Makee) promises to payto SOREL FORGE CO., & Canadian corporation its principal place ofbusiness at 100McC2rthy St. TosephdeSorel, Quebec, CanadaJ3R3b1Y .der") onto thie corder thereof, inlawfd money oftheUnited States ofAmerica,theprincipal amountofTwollundredForry Five lbousand, Two Hundred EiglityEightDollarsand FiftyNine Cents ($245,288.59), togcthcrwith interest on the unpaid principal balance from the date of this Instrument until paid in full. PAYMENT: Maker will pay this loath in amordanee with tfie following payment schedule: Payment upon demand. ,.<er will pay Holder at Holdces address shown above or art sorb other place as Holder rosy dcsi gnate in writing. Unless otherwise ageed or required by appheable law, payments will be applied first to accrued unpaid intcrost, then to principal, and any rea>.sW zg amotwt to any unpaid costs and late charges. PREPAYMENT: Maker may pay, without penalty, all or a portion of the a=unt owed earlier tbaa it i s due. Early payments will not, unless agreed to by Holdtx baa writ ng, relieve Maker of Mskc:es obligation to continue to makepaymeats ur4erthe abovopaymgat aobaduie, Ratter, theywillreduce the principal balance due and may result in Maker making fewer paymextte. DEFAULT: Maker will be it default if any of the following occurs: (a) Maker fails to make my payment when due; (b) Maker breaks avy promiBe Maker has made to Holder, or Maker fails to perform promptly at the time and strictly in the manner provided in this Note:, or any aZWment related to this Note; (c) Maker defaults under any loan, =tension of cmdit, security agree:aae4 purchase or sales agxrement. or ariyotheragrodmrwt infer`.orofanyo%acseditoaroxporeonthatmay materially affect any of the Makees property or Makees ability to repay $iit Nota or perform Maker's obligations under this Note or any related sgcemant; (d) agyrWL - on or statement made or fbrnished to Holder by Maker or on Maker's behalfis false or misleading in a cy material respect; (e) Maker becomes insolvent, a receiver is appointed for anypart of Maker's property, Maker makes an assignment for the benefit of aeditots, or any proceeding is coi=enced either by Maker or against Maker under any bankruptcy or insolvency laws; (f) any creditor tries to take arty of Makees property on ,vhich the Holds' has a lien or security interest; (g) arty of the ev=" described in this default section occurs with respect to any guarantor of this Note; (h) Holder, in good faith, deems Holder inseoure. 04/04/2005 13:33 7172431850 MDW0 PAGE 04/11 CONnSSION OF JVDGMENT: The Maker hereby hmocably wAod2= and aztpowors say prothonotary, clark or attorney of any court of record within the United States or elsewhere to appear for the Maker and, with or without declaration, to confess judgment at any time or times against each, any or all ofthe Maker(s) and in favor cf the Holder hereof for the above stag plus interest thereon from the date hereof, and for so doing, this Note or a copy of this note, verified by affidavit shall be sufficient warrant.. The Makcr hereby releases all errors and exprestly waives a1l sights to My stay of execution, sequestration of rents and exemption of any property from levy and sale of execution under any law or rule of court now in force or'beroafter enacted. All of the &mgaiig promises are the joint and several promises ofthe Mitker and shall bind the Maker, its successors and assigns. The Maker and all endorser waive protest, demand and notice of nonpayment ofthis Note. The authority granted is ttus Note to confess judgment against Maker shall not be emhaustedby any exercise ofthat authority, but shall continue from tune to time and at all times until payment in Rill of all amom* due wader this Note. • HOLURIS RIGHT'S: Upon default, Holdermaydeclare the entire wVaidpriacipalbalance on this Note and all accruod unpaid interest it>wmodi"y due, without notice, and tl= Makers will pay that amount. Holder may hire or p ay someone vise to help collect Uds Node if Makeor does M pay, Maker will also pay Holder that amount. This includo, subj ect to any applicable lw, Holder's attorney's fits and legal and court expenses whether or not there is a lawsW4 including attomay's fees anti Holder's legal expenses for bankruptcy proceedings (including eft % to maltyorv2?te My automatic stay or injunction ), appeals, and any other post judgment collection costs and searvice& Makes will a1,9o pay any court costs, in addition to all other sums provided by later. If judgwmj is entered in connection with this Note, interest will continue to accrue oa this note a>I* jndSm ast at the rate applicable to this Notc at the time judgment is entered. The rmedies provided to ft $0WW in tws document in the event of a default or a breach of the conditions bavin, "not be construed to be exclusive of any other rornedy available to the Holder and the HokkT may exercise any reww y available to Holder. Additionally, the exercise of any one r=cdy shat( not be considered a waiver of all those other remedies available to the Holder. CE "FERAL PROVISIONS: The interpretation and constNedon ofthis Note alor4 with the rights and remedies available to the parties hereto shall be govemed by the law3 of the Commonwealth of Pwmsyhvania. If auy,provision of this agreement shall be bald invalid or unenforceable, such shall not affect any other provision of the 'rote. This Note represents the entire agreement between the Maker and Holder. No waiver or modification of the terms of this note sW1 be valid tmless iu writing, stared by the Maker and Holder 0 • • -44 `? ?, v ? ? Nye N ' v s 0 s 0 1 • • $100,000 [81- 11:21, 12:1, 12:2,12:11, 12:13,12:14,12:17, 17:1 $259,000 [1] -11:18 $6,000 111- 13:18 $6,260[21- 13:19, 13:20 '50s [2] - 4:25, 5:5 1 1141- 2:13,15:15, 15:16,15:19 10 [11 - 1:14 10:00 [1] - 17:20 12 Ill- 2:3 16[11- 2:13 2 2002[l] - 5:18 2004[1] - 16:1 200511] - 5:20 2005-1827 [11- 1:3 2009[21- 1:12, 18:19 29th [11- 18:19 3 3,16[11-2:3 36 [1l - 4:1 9 9[1] - 1:12 9:41 [11- 1:12 A a.m [21- 1:12, 17:20 abide (11 - 3:19 ability [1l - 18:16 accountants [11 - 6:23 accounting 121- 5:24, 6:11 accurately [1] - 18:14 acquainted [11- 4:23 ACTION [1] - 1:2 administer(11- 18:3 advance 111- 15:13 advice [21- 10:14, 10:17 afterwards (11- 18:11 ago [1] - 4:18 agree [1] - 3:19 agreed [1] - 18:10 agreement [4] - 12:12,12:20,13:11, 13:20 allow [11- 9:12 ALSO [11 - 1:22 amount[1] - 12:3 answer [1] - 3:7 answers [1] -18:9 anticipated [11- 8:11 apologize [11- 15:12 APPEARANCES [11- 1:16 approved Ill - 18:10 area Ill - 5:12 arm's [11 - 8:7 asset [11- 9:18 assets 131- 7:25, 8:6, 8:10 Associates [41- 4:11, 4:17, 4:20,17:11 Associates' [11 - 4:14 assume [1] - 4:16 attorney 11] -10:9 authorized [11 - 18:3 B bail [1l - 16:19 basis [11 - 6:5 became (1] - 5:5 become [21- 4:23, 5:1 BEFORE [11- 1:11 benefit 131- 16:25, 17:4,17:8 best [11-18:15 between [31- 3:2, 7:13,13:12 Board [11- 7:2 bookkeepers [1] - 7:6 books [21- 6:10, 6:22 bought [1l - 12:5 Brandy [e] - 8:1, 8:3, 8:11, 10:12,11:5, 11:10 brought [21- 6:19, 6:20 burned [11 - 4:17 business [3] - 4:14, 4:16,11:11 buy [1] - 13:13 BY [71 - 1:10, 1:18, 1:20, 3:13,12:25, 15:17,16:13 C CAGE [4] - 9:5, 9:8, 9:12, 9:14 Calabrese [341- 3:22, 3:24, 5:15, 5:21, 6:4, 6:9, 7:7, 7:16, 7:17,7:19, 7:24, 8:1, 8:5, 8:10, 9:6, 9:18,10:22,12:2, 12:14,12:19,13:1, 13:4,13:9,14:5, 14:22,15:20,15:23, 16:1, 16:3,16:15, 16:25,17:10,17:16 CALABRESE [51 - 1:3,1:9,2:3, 3:10, 18:6 capacity [11- 4:6 Carlisle [21- 1:14, 18:4 causes [1] - 18:4 certain [1] - 16:4 certification [1l - 3:3 certify [31- 18:5, 18:7, 18:13 chance [11 - 15:13 CHANCE 11] -18:2 Chance [21- 1:11, 18:21 Chris [11 - 7:8 CIVIL [11- 1:2 CO [11- 1:1 code [51- 8:2, 9:5, 9:8, 9:12, 9:14 COMMON (11- 1:1 company [10] - 4:3, 6:1,6:6,6:14,9:15, 14:25,16:19,16:21, 16:24,17:7 computer 11] - 18:11 concluded [11- 17:20 conducted [11 -11:10 conflict [1] - 10:23 consider [1] - 9:17 contained [1] - 18:14 context [11- 5:1 contractors [11 - 12:16 contracts [61- 7:21, 8:4, 8:14, 8:18, 8:21, 16:18 conversation 111- 12:7 copy [11- 18:16 corporate [11 - 10:10 corporation [111- 10:15,13:2,13:12, 14:2,14:4,14:9, 14:20,14:21, 15:7, 15:8 correct [31- 13:14, 13:16,18:16 counsel [3] - 10:19, 10:21, 10:25 COUNTY [11- 1:1 couple [1l - 16:10 COURT [1l - 1:1 court [21- 3:8, 3:9 Court 131- 1:11, 18:2, 18:22 Coyne [21 - 10:7, 10:9 create [21- 7:20, 8:3 credit [21- 17:11, 17:13 CUMBERLAND [11- 1:1 current 141- 8:6, 14:1, 14:2,14:9 D daily [11- 6:5 DATE [11- 1:12 Dave 191- 4:15, 7:4, 10:1, 10:18,11:24, 12:8.12:18, 14:24, 16:16 David [21- 1:23, 10:21 deal 131-11:22, 11:25,17:12 deals [11- 6:2 debt [21- 8:6, 17:9 Defendant (21 - 1:4, 1:10 DEFENDANT [11- 1:20 DEPONENT [1] - 2:2 deposed [11- 3:14 DEPOSITION (11 - 1:9 deposition [31- 17:20,18:8,18:15 depositions [11- 18:3 describe [1l - 8:15 DESCRIPTION [1] - 2:12 direction [11- 18:12 Directors [1l - 7:2 disappear [11 - 12:15 discount [1]- 11:21 documents [1] - 10:10 done [11- 12:16 down [31- 4:16, 10:6, 18:9 drafted [11 - 10:9 drawn [11- 10:7 duly [21- 3:11, 18:8 duties [11- 6:8 E East [11- 1:14 effect [1] - 4:22 eight [11- 4:7 employed [21 - 3:23, 4:15 employment [11- 7:12 end [11 - 5:19 enter [11- 17:10 enterprise [11- 7:20 Enterprises 161- 8:2, 8:3, 8:12,10:12, 11:5.11:10 entity [4] - 8:22, 9:21, 9:24, 9:25 escrow [1l - 13:21 ESQ [1] -1:18 ESQUIRE [1] -1:20 event [11 - 3:5 eventually [11- 7:15 evidence [11 - 18:14 EXAMINATION 141- 2:2, 3:12,12:24, 16:12 examined [11- 3:11 Exhibit [3] - 15:15, 15:16,15:19 EXHIBITS [11- 2:11 existence [1] - 11:8 expertise [1] - 8:16 F fact [3] - 13:11, 15:25, 17:2 familiar [4] - 4:8, 4:11, 5:2, 5:5 far [31- 6:21, 8:25, 10:8 federal [21- 8:2, 9:9 few [11 - 4:18 filing [11 - 3:4 finances [11 - 16:17 financial (11- 6:17 financially [11- 6:13 first (51 - 4:23, 5:1, 5:5, 6:15, 7:9 Fisher [41- 1:23, 10:1, 12:8.12:18 fisher [15] - 4:8, 4:19, 4:24, 5:14, 6:15, 7:13, 7:15,10:25, 12:20,14:14,15:22, 16:1, 16:3,16:14, 17:5 fisher's (1) - 5:21 Fitzsimmons [11- 10:18 follow [1] - 16:11 follows [1] - 3:11 FOR [21 - 1:18, 1:20 foregoing 11] - 18:5 Forge [81 - 11:13, 11:17,11:18,12:3, 17:1, 17:2 FORGE [11 - 1:1 06/28/2009 04:05:41 PM Page 1 to 1 of 3 6 of 8 sheets • • • forgings [il - 12:5 form [i] - 17:11 forms [i] - 8:21 forth pI - 7:3 friends [1] - 16:1& FSCM [31- 8:2, 8:22, 9:10 fulfilled ill - 17:16 full [21- 13:21, 13:24 fully [i1- 18:14 FURTHER [11- 16:12 G general [21- 4:21, 6:7 given [2I - 15:25, 16:2 government [51- 8:14, 8:17, 8:19, 9:2, 9:14 ground [11 - 4:17 guy [21- 11:24, 16:23 H hand [11 - 18:19 handle [21- 8:6, 16:17 handling [21- 6:10, 6:11 Hanover [61- 4:11, 4:13, 4:16, 4:20, 17:11 Harrisburg [1] - 11:4 hashed (11 - 10:4 hear [i] - 3:16 hearing ill - 6:22 held ill - 13:21 help [5] - 6:19, 6:20, 7:5, 7:23, 16:24 helping [31- 5:23, 5:24, 6:11 hereby [21- 3:2, 18:5 hereunto [1] - 18:18 hierarchy [1] - 7:12 High ill - 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17:11, 17:13 Lisa [2] - 10:6, 10:9 listen [1] - 11:20 litigation [i] - 11:14 lived [11- 5:3 located [1] - 11:3 look [21- 8:8, 14:23 looking [31- 7:4, 7:18,14:24 M machinery [l] - 8:14 Maclean [11- 7:9 man's [l] - 12:9 managing [1] - 4:21 manufacturing [21- 9:9, 9:15 mark 121- 15:13, 15:14 marked [21- 15:16, 15:18 MARLIN [21-1:17, 1:18 Martson [11- 1:13 MARTSON [1] - 1:19 matter p ] - 13:11 McCaleb 1i o] - 1:17, 1:18, 2:3, 3:5, 9:7, 12:25,15:12,15:17, 16:9,17:19 McNees [ll - 11:1 mean [91- 5:6, 5:12, 6:7, 6:16, 6:22, 8:23,10:5,14:21, 16:2 means [1] - 8:25 meant [1) - 15:8 Mechanicsburg [11- 5:3 Michael [21- 13:9, 13:12 money [i it - 6:1, 12:4,12:15, 12:21, 14:4,14:14,15:9, 15:23,16:1, 16:4, 16:15 monies Ill - 14:22 month [11- 13:18 monthly [3] - 13:15, 14:1, 14:2 MOSEBEY [81-1:20, 3:13, 9:8, 9:11, 12:23,16:10, 16:13, 17:18 Mosebey 111- 2:3 most p I - 7:25 mother[s] - 14:7 move [3] - 7:20, 8:1, 11:13 MR [141- 3:5, 3:13, 9:7, 9:8, 9:11, 12:23,12:25, 15:12, 15:17,16:9,16:10, 16:13,17:18,17:19 N name [31- 3:21, 11:9, 12:9 needed ill - 8:17 new [4] - 8:22, 9:20, 9:24, 9:25 next [l1 - 6:23 nice ill -16:23 nine ill - 4:7 NO [2] - 1:3, 2:12 nobody 11] - 7:1 none ill - 10:4 Notary [41 - 1:11, 18:2,18:10,18:22 Note [11 - 2:13 note 1121- 11:13, 11:17,12:10,12:21, 14:12,15:10,15:22, 15:25,16:2,16:3, 17:2,17:5 notes [1] - 18:14 nothing [1] -17:3 novate [21- 8:21, 8:23 Nurick ill - 11:2 O o'clock (iI - 17:19 oaths [l1- 18:3 objection [4] - 3:5, 3:6, 3:8 obligation (1] - 17:15 obligations p] - 14:10 OF [3] - 1:1, 1:9, 1:17 office [l1-18:4 Offices [1] -1:13 OFFICES [2] - 1:17, 1:19 one 121 - 6:22, 8:25 organized ill - 10:6 originally [l1- 5:25 outside [21- 7:10, 10:18 owe [21 - 12:3, 14:4 owed [t1- 11:18 own [1] - 13:10 owned [11- 13:8 owner 121- 4:4, 4:21 owns ill - 13:4 P PAGE [21- 2:2, 2:12 paid 11o] - 12:10, 12:17,12:21, 13:22, 13:24,15:2, 15:4, 15:9, 17:1, 17:17 papers ill - 10:7 parties ill - 3:3 partner [ll - 4:21 partners [11 -16:18 Pat [21- 7:9, 7:10 pay [lI - 16:4 paying Ill - 17:5 payment [2] - 13:15, 14:2 PENNSYLVANIA [l1- 1:1 Pennsylvania (2] - 1:14,18:5 People [2] - 6:11, 16:22 peril) - 10:4 period [11 - 5:13 periods 131- 5:9, 5:11 permission [11 - 9:3 phone [31- 11:19, 11:23,12:6 phonetic [1] - 7:9 PLACE ill - 1:13 Plaintiff [11 - 1:1 PLAINTIFF [iI - 1:18 Plaintiffs (3] -15:14, 15:16,15:19 plan [11 - 7:23 plans [1] - 7:15 play [ll -10:3 PLEAS [lI - 1:1 point [21- 5:14, 17:10 position [31- 4:2, 4:20,14:23 possibility ill - 8:20 possibly [i] - 14:24 PRESENT [i ] - 1:22 president [l1 - 4:4 pretty [31- 6:5, 7:14, 16:20 previous [1] - 12:16 price [21- 13:21, 13:24 printout[)] - 18:11 problems ill - 5:24 proceed [11 - 3:7 proceedings [11 - 18:13 products [11 - 9:15 promising [1] - 16:4 Promissory [l] - 2:13 provide ill - 13:20 provisions ill - 8:17 Public (31- 1:11, 18:3, 18:22 pursuantlil - 12:20 put 111- 7:23 putting [i] - 6:1 7 of 8 sheets Page 2to2of3 06/28/2009 04:05:41 PM 3 4 0 • • Q questions [5] - 12:23, 16:9,17:18,17:19, 18:9 served [1] - 4:5 SETH 111 -1:20 setting [11-10:14 shaky [1l - 6:18 shape [11- 7:22 shares [4] - 13:4, 13:8,13:13,13:21 shorten [11- 3:16 showing [11-15:18 signing (1l - 3:3 sitting (1l - 4:8 somewhere [31- 4:25, 5:18, 5:20 son 12]-10:1, 10:16 SONS [11- 1:3 Sons [221- 3:24, 5:15, 5:22, 6:4, 7:7, 7:16, 7:18, 7:19, 8:10, 9:6, 9:18,10:22 , 12:2, 12:15, 12:19, 13:1, 14:22, 16:3, 16:15,17:1, 17:10, 17:16 Sorel [141- 11:13, 11:17,11:18,11:20, 11:24,12:1,12:3, 12:9,14:12,15:3, 15:5,15:22,17:1, 17:2 SOREL (1] - 1:1 sorry [11- 9:7 sort [1] - 17:12 sought [1I - 10:14 special [1] - 8:16 specific [1] -10:2 stages [1l - 10:5 start [1l - 7:10 started [41- 5:18, 6:15, 7:9, 7:19 state [4] - 3:21, 6:14, 6:16, 6:17 stay [51- 12:2, 12:14, 14:20,14:21, 14:22 stayed [11 - 5:8 staying [21- 15:6, 15:8 stenotype [1I -18:9 Still [21- 10:5,11:8 stipulated [11- 3:2 STIPULATION [1] - 3:1 stock [11 - 13:4 straightened [21- 6:12, 6:21 Street [1] - 1:14 stuff 111- 14:24 subject [21- 3:7, 11:14 sum [11- 16:4 supply [21- 8:2, 9:9 supposed [1] - 9:25 sworn [21- 3:11, 18:8 T table [1l - 4:9 TAKEN [1] - 1:10 tax[1)-7:11 ten [11- 17:19 term [1l - 8:24 testified [2] - 3:11, 3:14 TESTIMONY [1I - 2:1 testimony [31- 3:9, 18:6,18:18 THE [2] - 1:1, 9:9 thousand [51- 14:17, 14:20,15:2,15:4, 15:6 tire [1] - 4:16 TO 121- 2:1, 2:11 today [1] - 11:8 together[1] - 6:2 touch [11- 5:8 transaction [11 - 8:7 transcript (11- 18:16 transfer [31- 8:13, 8:17, 8:25 transferred [11 - 9:20 transferring [1] - 8:11 transition [1l - 10:24 transitioning [21- 8:9, 14:24 trial [1] - 18:4 try [21- 6:20, 7:18 trying [4] - 6:12, 8:8, 10:5,16:21 Y year [1] - 17:17 years [41- 4:1, 4:7, 4:18, 5:12 R Radonovich [1] - 7:10 ready [1I -14:23 really (21- 10:4,13:23 recognize [11- 15:19 recognizes [1] - 9:14 recommendation [11 - 10:20 recommended [11 - 10:18 record [11 - 3:6 redirect[1] - 16:10 reduced [11- 18:11 regarding [1] - 12:12 relationship [21- 6:4, 7:13 relatively [1] - 6:18 remedy [11 - 6:19 remember [1l - 12:9 repay [11 - 12:20 Reporter [51- 1:11, 18:2,18:10,18:12, 18:22 Reporter-Notary [21- 18:10, 18:22 represented [1] - 11:20 representing [21- 11:24, 12:9 represents [1] - 14:14 required [11-12:20 respective [1] - 3:3 rest [11- 12:15 returns [11- 7:11 reviews [1] - 3:9 Rick [2] - 3:17, 9:25 Riggleman [21- 3:17, 10:1 role 121- 5:14, 5:21 roles [1l - 10:2 rolling [21- 17:13 rule [1] - 3:8 S save [5] - 7:18, 7:24, 8:2, 16:21 screw [1] - 8:8 se 111- 10:5 sealing [1l - 3:3 see 131- 7:18, 7:21, 10:6 seek [1] - 10:17 sent [1] - 8:20 V under 111- 18:11 UP [41- 10:7, 10:14, 11:19,16:11 V Virginia [11- 14:4 vs [11- 1:2 W waived [1] - 3:4 Wallace [11- 11:2 Wampler [1l - 7:8 whereof [11 - 18:18 whole 131- 5:4, 5:6, 16:23 willing [1] - 11:21 witness [31- 3:7, 3:10,18:8 WITNESS 11l - 9:9 06/28/2009 04:05:41 PM Page 3 to 3 of 3 8 of 8 sheets r • 1 SOREL FORGE CO., Plaintiff, : VS. CALABRESE & SONS, INC.,: Defendant. : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2005-1827 COPY DEPOSITION OF: JOSEPH A. CALABRESE, II TAKEN BY: Defendant E BEFORE: Jennifer Chance Court Reporter - Notary Public DATE: June 9, 2009 at 10:06 a.m. PLACE: Martson Law Offices 10 East High Street Carlisle, Pennsylvania APPEARANCES: LAW OFFICES OF MARLIN R. McCALEB BY: MARLIN R. McCALEB, ESQ. FOR - PLAINTIFF MARTSON LAW OFFICES BY: SETH T. MOSEBEY, ESQUIRE FOR - DEFENDANT ALSO PRESENT: Joseph Calabrese David Fisher C ntral is NW, rt Reporting Services 0-863-3657 • 717-258-3657 • 717-258-0383 fax courtreporters4u @aol. com • • 3 1 STIPULATION 2 It is hereby stipulated by and between the SOREL FORGE CO., IN THE COURT OF COMMON PLEAS 3 respective parties that signing, sealing, certification Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW 4 and filing are waived. NO. 2005-1827 CALABRESE 6 SONS, INC.,: Defendant. . 5 MR. McCALEB: In the event of an objection to 6 any question, the objection will be stated for the record, 7 the witness will proceed to answer subject to the 8 objection, and then the court can rule on the objection DEPOSITION OF: JOSEPH A. CALAMESE, IT 9 when the court reviews the testimony. TAKEN BY: Defendant 10 JOSEPH A. CALABRESE, II, called as a witness, BEFORE: Jennifer Chance Court Reporter - Notary Public 11 being duly sworn, was examined and testified as follows: DATE: June 9, 2009 at 10:06 a.m. 12 EXAMINATION PLACE: Martson Law Offices 10 East High Street 13 BY MR. MOSEBEY: Carlisle, Pennsylvania 14 Q. Have you ever been deposed or testified before? APPEARANCES: 15 A. Yes. LAW OFFICES OF MARLIN R. MLCALEB BY: MARLIN R. MCCALEB, ESQ. 16 Q. Do you understand that you will be testifyin FOR - PLAI HT IFF g MARTSON LAW OFFICES 17 under oath and as a result you must be truthful in your BY: SETH T. MOB EBEY, ESQUIRE FOR - DEFENDANT 18 responses to the questions? ALSO PRESENT: 19 A. Yes. Joseph Calabrese David Fisher 20 Q. The court reporter here has the tedious task of 21 transcribing everything that we say to paper. As a 22 result, she cannot transcribe a shake or nod of the head. 23 As a result, I ask that all of your responses be oral. Do 24 you understand? 25 A. Yes. 2 1 INDEX TO TESTIMONY 4 1 Q. If you need a break at any time, please let me 2 DEPONENT EXAMINATION PAGE 2 know. Do you understand? 3 JOSEPH A. CALABRESE, II by Mr. Mosebey 3 3 A by Mr. McCaleb 11 . Yes. 4 4 Q. I ask that you first listen to my question 5 5 before answering. If you do not understand the question, 6 please let me know and I will rephrase it. Do you 6 7 understand? 7 8 A. Yes. 8 9 Q. Therefore, if you answer a question, I shall 9 10 assume that you understood the question and you are 10 11 answering truthfully. Do you understand? 12 A. Yes. 11 INDEX TO EXHIBITS 13 Q. Have you taken any drugs, prescription or 12 14 otherwise, or consumed alcohol or some other substance NO. DESCRIPTION PAGE 13 15 that may impair your ability to testify truthfully? (None.) 16 A No 14 . . 17 Q. Please state your name. 15 18 A. Joseph A. Calabrese, II. 16 19 Q. And do you go by any nicknames? 17 20 A. Joey. 18 19 21 Q. Where do you currently work? 20 22 A. Calabrese & Sons, Incorporated. 21 22 23 Q. And how long have you worked there? 23 24 24 A. Since I graduated from college. I graduated in 25 25 1998, so from 1998. rdyc 1 Lo 4 Uf 13 06/28/2009 04:06:38 PM • • • 5 7 1 Q. Still today? 1 A. Yes. 2 A. Yes. 2 Q. And in what way did you work with him? 3 Q. Are you familiar with Mr. Fisher who is sitting 3 A. Let's see. We would go back in the back office 4 across the table from you? 4 and talk about the contracts we had, what we can do to 5 A. Yes. 5 move contracts and keep the cash flow going for us, for 6 Q. Are you familiar with Hanover Associates? 6 Calabrese. 7 A. Yes. 7 Q. At some point, did Mr. Fisher share plans with 8 Q. What is your understanding of Hanover 8 you to form a successor entity to Calabrese & Sons? 9 Associates' business? 9 A. Yes. Yes, we all did. 10 A. I don't have a complete understanding of what 10 Q. Who discussed these plans with you? 11 Hanover Associates does. I know he was in Calabrese & 11 A. The first time we had a discussion when I was 12 Sons helping my father's company out with financial 12 brought into the room was my father Joe, Dave, and myself. 13 issues. I heard that -- something with the tire company, 13 Q. What was the proposed name of this entity? 14 but other than that, I don't know what Hanover exactly 14 A. Brandy Lane Enterprises. 15 does. 15 Q. What purpose was Brandy Lane Enterprises 16 Q. To your knowledge, did Mr. Fisher have a role 16 supposed to serve? 17 or a position with Hanover Associates? 17 A. It was going to be the successor company of 18 A. Yes. 18 Calabrese & Sons. 19 Q. And what is that position? 19 Q. And can you describe what you mean when you say 20 A. I don't know. 20 the successor entity? 21 Q. When did you first become acquainted with 21 A. Through the government we were going to novate 22 Mr. Fisher? 22 contracts from Calabrese & Sons to Brandy Lane 23 A. Whenever my father brought him in. I don't 23 Enterprises, basically take the good and leave the bad. 24 remember what year that was. Prior to 2005. What year, I 24 Q. And what is your understanding of the term 25 don't know exactly. I don't know. 25 novate? 6 8 1 Q. Did Mr. Fisher have a role or employment with 1 A. I don't know the exact definition of it. To 2 Calabrese & Sons? 2 me, it was just a transfer. 3 A. Was he employed by Calabrese & Sons? I'm 3 Q. A transfer of what? 4 sorry. 4 A. Transfer of the contracts from one entity to 5 Q. Do you know if he had any role with respect to 5 the other entity. 6 Calabrese & Sons? 6 Q. Were there other assets of Calabrese that were 7 A. He was in the back office working on financial 7 to be transferred? 8 information with my father. 8 A. Not that I know of. 9 Q. Do you know the specifics of the financial 9 Q. Would you consider the CAGE code to be an 10 information he dealt with? 10 asset? 11 A. Bits and pieces, not everything. 11 A. Yes. 12 Q. Do you know what those bits and pieces were? 12 Q. Was that something that was to be transferred? 13 A. I mean, I do know some of the -- certain things 13 A. Yes. 14 that were talked about, yes. 14 Q. Can you describe what the CAGE code is? 15 Q. What were those, if you can give examples? 15 A. The CAGE code is how you are identified by the 16 A. If we wanted to pay a company up front, we 16 government entities. Every government contractor has a 17 would go back and talk to Dave about it. You know, if we 17 CAGE code. 18 were struggling cash wise, talk to Dave about it, or go 18 Q. Can you describe for me your understanding of 19 back and talk about the contracts we were running in house 19 who would be involved in Brandy Lane Enterprises? 20 and et cetera and stuff to that -- 20 A. At the beginning, it was Dave, Rick Riggleman, 21 Q. Do you recall when Mr. Fisher's involvement 21 myself, and my father. 22 with Calabrese & Sons ended? 22 Q. Were there specific roles each of you were to 23 A. I don't know the exact day. 23 perform with this company? 24 Q. Did you work with Mr. Fisher at Calabrese & 24 A. Yes, there was. They kind of flip-flopped from 25 Sons? 25 week to week. rayeacoaor ii 2 of 6 sheets • 1-1 • 9 11 1 Q. Do you remember what some of those roles were? 1 Q. Do you know the name of the individual who 2 A. I started the company. I mean, I went to Lisa 2 called from Sorel? 3 Coyne and had the company incorporated so I was -- my job 3 A. No. 4 title was going to be the president. Rick was going to be 4 Q. Do you know who was involved in that phone 5 the vice president. 5 call? 6 And then I don't remember how it was, but then 6 A. I believe my father took the original call and 7 it flip-flopped and Rick was going to be the president and 7 went back to the back office and proceeded to finish the 8 I was going to be the vice president, but you know, to me 8 conversation with Dave and the gentleman and my father. 9 it was just a name. 9 Q. Do you know what amount, if any, was actually 10 Q. Practically speaking, how would your job or 10 paid for the Sorel note? 11 your duties from Calabrese & Sons incorporated change when 11 A. No. 12 you were involved with Brandy Lane Enterprises? 12 Q. Do you know of any agreement involving the 13 A. I didn't really see my job changing. 13 Sorel note between Calabrese & Sons and Mr. Fisher or his 14 Q. Did you seek the advice of counsel with regard 14 company Hanover Associates? 15 to incorporating Brandy Lane Enterprises? 15 A. Can you repeat that? 16 A. Yes. 16 Q. Do you know of any agreement regarding the 17 Q. And who did you seek the advice of? 17 Sorel note between Hanover Associates and Calabrese & 18 A. Lisa Coyne. 18 Sons? 19 Q. And did anyone advise you to seek independent 19 A. Not between Calabrese & Sons and Hanover, no. 20 counsel for this incorporation? 20 MR. MOSEBEY: Okay. I have no further 21 A. Nobody said specifically but, you know, we had 21 questions. 22 talked, you know, and decided on Lisa Coyne since she was 22 EXAMINATION 23 my cousin -- my friend's cousin, excuse me, so -- 23 BY MR. McCALEB: 24 Q. What work did Ms. Coyne perform with regard to 24 Q. Do you own any shares of Calabrese? 25 creating Brandy Lane Enterprises? 25 A. No. 10 12 1 A. She started the Articles of Incorporation and 1 Q. And do you have a title with Calabrese? 2 started working on the bylaws of the company, and I am -- 2 A. I guess vice president. 3 and you know, just trying to put the foundation down for 3 Q. Vice president? 4 it. 4 A. Yes, sir. 5 Q. Was Brandy Lane Enterprises in fact 5 Q. And your father is the president then? 6 incorporated? 6 A. Yes. 7 A. Yes. 7 Q. Is there a Board of Directors? 8 Q. Is it still in existence today? 8 A. No. 9 A. Yes. 9 MR. McCALEB: That's all I have. Thank you. 10 Q. Did Ms. Coyne draft bylaws for the corporation? 10 You are excused. 11 A. Yes. 11 (The deposition concluded at 10:17 a.m.) 12 Q. Were those bylaws ever changed? 12 13 A. No. 13 14 Q. With respect to the Sorel Forge note, which is 14 15 the subject of this action that we are here today for, can 15 16 you describe your knowledge of the Sorel note? 16 17 A. The only thing I know about the Sorel Forge 17 18 note is there was money that Calabrese owed to Sorel, two 18 19 hundred and something thousand dollars. 19 20 Some guy called in representing Sorel -- I 20 21 don't know if he was a lawyer or what his title was -- 21 22 talked to Dave, talked to my father and, you know, they 22 23 settled it for $100,000 instead of the two hundred and 23 24 something thousand dollars. Other than that, I wasn't 24 25 involved with that. 25 rage v co iz or L.s 06/28/2009 04:06:38 PM • u [_-.,I 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Jennifer A. Chance, Court Reporter-Notary Public 06/28/2009 04:06:38 PM CERTIFICATION I, JENNIFER CHANCE, a Court Reporter - Notary Public authorized to administer oaths and take depositions in the trial of causes, and having an office in Carlisle, Pennsylvania, do hereby certify that the foregoing is the testimony of JOSEPH A. CALABRESE, U. I further certify that before the taking of said deposition the witness was duly sworn; that the questions and answers were taken down stenotype by the said Reporter-Notary, approved and agreed to, and afterwards reduced to computer printout under the direction of said Reporter. I further certify that the proceedings and evidence are contained fully and accurately in the notes taken by me on the within deposition to the best of my ability, and that this copy is a correct transcript of the same. In testimony whereof, I have hereunto inscribed my hand this 29th day of June, 2009. Page 13 to 13 of 13 4 of 6 sheets 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 l 13 C E R T I F I C A T I O N I, JENNIFER CHANCE, a Court Reporter - Notary Public authorized to administer oaths and take depositions in the trial of causes, and having an office in Carlisle, Pennsylvania, do hereby certify that the foregoing is the testimony of JOSEPH A. CAU BRESE, II. I further certify that before the taking of said deposition the witness was duly sworn; that the questions and answers were taken down stenotype by the said Reporter-Notary, approved and agreed to, and afterwards reduced to computer printout under the direction of said Reporter. I further certify that the proceedings and evidence are contained fully and accurately in the notes taken by me on the within deposition to the best of my ability, and that this copy is a correct transcript of the same. In testimony whereof, I have hereunto inscribed my hand this 29th day of June, 2009. enn er A. Chance, JCourt Reporter-Notary Public NOTARIAL SEAL Jennifer A Chance NOTARY PUBLIC Boro of Chambersburg, Franklin County My Commission Expires D&30=11 1 • • $100,000 [1l - 10:23 1 10[11- 1:14 10:06[1] - 1:12 10:17[1] - 12:11 1111[ - 2:3 1998[21- 4:25 2 2005 [1] - 5:24 2005-1827 [1] - 1:3 2009[2] - 1:12, 13:19 29th [1] - 13:19 3 3[11-2:3 9 9[11- 1:12 A a.m [21- 1:12,12:11 ability [21- 4:15, 13:16 accurately [1] - 13:14 acquainted [11- 5:21 action (1l - 10:15 ACTION [1] - 1:2 administer [1l - 13:3 advice [21- 9:14, 9:17 advise [1] - 9:19 afterwards [1] - 13:11 agreed [11- 13:10 agreement 121- 11:12, 11:16 alcohol (1] - 4:14 ALSO [1] - 1:22 amount [1] - 11:9 answer [21 - 3:7, 4:9 answering [21 - 4:5, 4:11 answers (1] - 13:9 APPEARANCES [1] - 1:16 approved [1] - 13:10 Articles [11- 10:1 asset [1l - 8:10 assets (1l - 8:6 Associates [5] - 5:6, 5:11, 5:17,11:14, 11:17 Associates' [1] - 5:9 assume [1] - 4:10 authorized [1] - 13:3 B bad [11- 7:23 become [11- 5:21 BEFORE [1] -1:11 beginning [11- 8:20 best [1] - 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3:18, 3:23 result [31- 3:17, 3:22, 3:23 reviews Ill - 3:9 Rick 131 - 8:20, 9:4, 9:7 Riggleman [1l - 8:20 role (31- 5:16, 6:1, 6:5 roles 121 - 8:22, 9:1 room Ill - 7:12 rule [l) - 3:8 running [i1- 6:19 S sealing [1] - 3:3 890 [21- 7:3,9:13 seek [31 - 9:14, 9:17, 9:19 serve Ili - 7:16 SETH [1] - 1:20 settled [11- 10:23 shake [1] - 3:22 shall [11- 4:9 share [lI - 7:7 shares [t) - 11:24 signing Ill - 3:3 sitting Ill - 5:3 SONS [11- 1:3 Sons [141- 4:22, 5:12, 6:2, 6:3, 6:6, 6:22, 6:25, 7:8, 7:18, 7:22, 9:11, 11:13, 11:18,11:19 Sorel [9) - 10:14, 10:16, 10:17,10:18, 10:20, 11:2,11:10, 11:13, 11:17 SOREL Ill -1:1 sorry [1] - 6:4 speaking Ill - 9:10 specific [11- 8:22 specifically Ili - 9:21 specifics lil - 6:9 started [3] - 9:2, 10:1, 10:2 state [l I - 4:17 stenotype Ill -13:9 Still 121 - 5:1, 10:8 stipulated Ill - 3:2 STIPULATION [1) - 3:1 Street 111 - 1:14 struggling Ill - 6:18 stuff [1) - 6:20 subject [21- 3:7, 10:15 substance (11- 4:14 successor [31- 7:8, 7:17, 7:20 supposed [11- 7:16 sworn [21- 3:11, 13:8 T table Ill - 5:4 TAKEN Ill - 1:10 task Ill - 3:20 tedious Ill - 3:20 term (il - 7:24 testified [2) - 3:11, 3:14 testify [1) - 4:15 testifying Ill - 3:16 TESTIMONY [l] - 2:1 testimony (3) - 3:9, 13:6,13:18 THE (1) - 1:1 therefore [1l - 4:9 thousand [21-10:19, 10:24 tire It) - 5:13 title [31- 9:4, 10:21, 12:1 TO [2) - 2:1, 2:11 today [3) - 5:1, 10:8, 10:15 took Ill - 11:6 transcribe [1] - 3:22 transcribing [11- 3:21 transcript [11- 13:16 transfer [31- 8:2, 8:3, 8:4 transferred [21- 8:7, 8:12 trial Ill- 13:4 truthful Ill - 3:17 truthfully 12) - 4:11, 4:15 trying [11-10:3 two [21- 10:18, 10:23 U under [21- 3:17, 13:11 understood [t) - 4:10 up It) - 6:16 V vice [4) - 95, 9:8, 12:2,12:3 vs[1]-1:2 W waived Ili - 3:4 week [21- 8:25 whereof [11-13:18 wise [t] - 6:18 witness [3] - 3:7, 3:10,13:8 Y year [2) - 5:24 06/28/2009 04:06:38 PM rage Z E0 Z OT Z 6 of 6 sheets is SOREL FORGE CO., IN THE COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - LAW NO. 2005-1827 CALABRESE & SONS, INC.,: Defendant. : COPY DEPOSITION OF: RICHARD RIGGLEMAN TAKEN BY: Defendant • • BEFORE: Jennifer Chance Court Reporter - Notary Public DATE: June 9, 2009 at 9:30 a.m. PLACE: Martson Law Offices 10 East High Street Carlisle, Pennsylvania APPEARANCES: LAW OFFICES OF MARLIN R. McCALEB BY: MARLIN R. McCALEB, ESQ. FOR - PLAINTIFF MARTSON LAW OFFICES BY: SETH T. MOSEBEY, ESQUIRE FOR - DEFENDANT ALSO PRESENT: Joseph Calabrese David Fisher Z S .. ntral s is rt Reporting Services 0-863-3657 • 717-258-3657 • 717-258-0383 fax courtreporters4u@aoL com • 0 • 3 1 STIPULATION 2 It is hereby stipulated by and between the SOREL FORGE Co., IN THE COURT OF COMMON PLEAS 3 respective parties that signing, sealing, certification Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA 4 and filing are waived. vs. CIVIL ACTION - LAW NO. 2005-1827 CALABRESE 6 SONS, INC.,: 5 MR. McCALEB: In the event of an objection to Defendant. 6 any question, the objection will be stated for the record, 7 the witness will proceed to answer subject to the 8 objection, and then the court can rule on the objection 9 when the court reviews the testimony. DEPOSITION OF: RICHARD HIGGI.Et91M TAKEN BY: Defendant 10 RICHARD RIGGLEMAN, called as a witness, being BEFORE: Jennifer Chance Court Reporter - Notary Public 11 duly sworn, was examined and testified as follows: DATE: June 9, 2009 at 9:30 a.m. 12 EXAMINATION PLACE: Martson Law Offices 10 East High Street 13 BY MR. MOSEBEY: Carlisle, Pennsylvania 14 Q. Good morning. Have you ever been deposed or APPEARANCES: 15 testified before? LAW OFFICES OF MARLIN R. McCALEB BY: MARLIN R. McCALEB, ESQ. 16 A. I have had two depositions. FOR - PLAINTIFF 17 Q. Do you understand that you will be testifying MARTSON LAW OFFICES BY: SETH T. MOSEBEY, ESQUIRE FOR - DEFENDANT 18 under oath and as a result you must be truthful in your ALSO PRESENT: 19 responses to the questions? Joseph Calabrese 20 A. Yes. David Fisher 21 Q. The court reporter here has the tedious task of 22 transcribing everything that we say here today to paper. 23 As a result, she cannot transcribe a shake or nod of the 24 head. As a result, I ask that all of your responses be 25 oral. Do you understand? 2 4 1 INDEX TO TESTIMONY 1 A. Yes. 2 DEPONENT EXAMINATION PAGE 2 f k l l Q you need a brea at any time, p ease et me . I 3 RICHARD RIGGLEMAN by Mr. Mosebey 3 3 know. Do you understand? by Mr. McCaleb 9 4 4 A. Yes. 5 Q. I ask that you first listen to my question 5 6 before answering. If you do not understand a question, 6 7 please let me know and I will rephrase it. Do you 7 8 understand? 8 9 A. Yes. 10 Q. Therefore, if you answer a question, I shall 9 11 assume that you understood the question and are answering 10 12 truthfully. Do you understand? 11 13 A. Yes. INDEX TO EXHIBITS 12 14 Q. Have you taken any drugs, prescription or NO. DESCRIPTION PAGE 15 otherwise, or consumed alcohol or some other substance 13 (None.) 16 that may impair your ability to testify truthfully? 14 17 A. No. 15 18 Q. Please state your name for the record. 16 19 A. Richard A. Riggleman. 17 20 Q. And where are you currently employed? 18 21 A. SKF Hanover. 19 20 22 Q. And were you previously employed by Calabrese & 21 23 Sons, Incorporated? 22 23 24 A. Yes. 24 25 25 Q. How long were you employed by them? 1 of 5 sheets Page 1 to 4 Of 1Z Ob/Z8/Z009 04:04:00 PM • • 5 7 1 A. 26, 27 years. 1 Q. Was Mr. Fisher in control of bookkeeping while 2 Q. Do you recall the approximate dates, years? 2 he was at Calabrese & Sons? 3 A. December 14th, I believe, '81 to June 25th or 3 A. I wouldn't say that he was in control of 4 something like that, in '07. 4 bookkeeping. He did record keeping. 5 Q. Are you familiar with Mr. Fisher who is sitting 5 Q. Do you know what records he got? 6 across the table from you? 6 A. Well, like I stated previously, just finances, 7 A. Yes, I am. 7 money in, money out, expenses, stuff like that. 8 Q. Are you familiar with Hanover Associates? 8 Q. At some point, did Mr. Fisher discuss with you 9 A. I know of Hanover Associates. As far as 9 plans for a successor entity to Calabrese & Sons? 10 dealing with them, I don't, but -- and haven't. 10 A. There was the Brandy Lane Enterprise venture 11 Q. What is your understanding, if any, of Hanover 11 which we were going to try to make work. 12 Associates' business? 12 Q. What was the purpose of Brandy Lane 13 A. I don't know the exact details of his business. 13 Enterprises? 14 I know that he came in to help with the finances of 14 A. Basically a fresh start for the contracts and 15 Calabrese & Sons. 15 people and stuff that -- our accounts. 16 Q. To your knowledge, did Mr. Fisher have a 16 Q. Was there to be a transfer of any of 17 position with Hanover Associates? 17 Calabrese's assets to Brandy Lane Enterprises? 18 A. Other than advisor at the time, not aware of 18 A. I don't know all the details as far as what was 19 it. 19 and what wasn't going to be. I know that Joey had set up 20 Q. When did you first become acquainted with 20 the business and was looking at, you know, getting all of 21 Mr. Fisher? 21 the government numbers and all of that stuff together. 22 A. Like 2003 or something like that. Yeah, 2002. 22 As far as any assets transferred back and forth 23 Q. In what context did you become familiar with 23 and stuff, I don't know the details of really any of that. 24 Mr. Fisher? 24 Q. Was the basic purpose of Brandy Lane 25 A. He was being like a financial advisor and 25 Enterprises to carry on Calabrese's work? 6 8 1 helping with the finances at Calabrese, and I was the shop 1 2 superintendent. 2 3 Q. Can you be a little more specific in terms of 3 4 what role Mr. Fisher had with Calabrese & Sons? 4 5 A. I know he was keeping track of the books, money 5 6 spent, money coming in, different things like that. 6 7 Q. Would it be fair to characterize him as a 7 8 financial guy for Calabrese & Sons? 8 9 A. Well, that was the role he was playing, so 9 10 yeah, working as -- I don't want to say playing but -- 10 11 Q. Are you aware of a job title that Mr. Fisher 11 12 had with Calabrese & Sons? 12 13 A. Not --no. 13 14 Q. Do you know approximately when Mr. Fisher 14 15 started working for Calabrese? 15 16 A. I would imagine it was 2002. 16 17 Q. Do you know when it ended? 17 18 A. 2005. 18 19 Q. Did you work with Mr. Fisher while you were 19 20 working at Calabrese? 20 21 A. I would say we worked together maybe as far as 21 22 talking about different things that were going on, as far 22 23 as -- I wouldn't say that I helped him do any bookkeeping 23 24 or anything like that, but information as far as getting 24 25 information and stuff. 25 A. That was my understanding. Q. From what you understand, who was to be involved in Brandy Lane Enterprises? A. That would have been Joey. Then after a while, I was going to be part of it, and Dave Fisher as, you know, investing and stuff like that. Q. And just to clarify on the record, who is Joey? A. Joey is Joe Calabrese's son at Calabrese & Sons, Incorporated. Q. Did you or to your knowledge did anyone else seek the advice of counsel regarding the creation of Brandy Lane Enterprises? A. What was that again? Q. To your knowledge, did you or anybody else seek legal advice to create Brandy Lane Enterprises? A. Other than Joey? Q. Did he seek counsel? A. Yes. Yes. Q. Do you know who he used as counsel? A. No, I don't know -- it was some lady. I don't remember her name. She was down in the Camp Hill area, I believe, or something like that. I don't know the name of the -- I don't recall the name. Q. Do you know if Brandy Lane Enterprises was ever created? 06/28/2009 04:04:00 PM Page 5 to is or 1z z or b sneets 0 • • 9 11 1 A. As far as I know, they were at the beginning 1 Q. And to your knowledge, did Mr. Fisher put up 2 steps of it. They didn't actually do any work, but I 2 money to pay some of those bills? 3 think they got established, I believe. 3 A. Yes, he did. 4 Q. And perhaps I should use some more legal terms 4 Q. Do you have any idea how much money he put up? 5 for it; do you know if Brandy Lane Enterprises was 5 A. No, I do not. 6 incorporated? 6 Q. Do you know -- 7 A. I don't know how far they got with it. 7 A. More than he should have, apparently. 8 Q. Are you familiar with the Sorel Forge note? 8 Q. Do you know how many times he put money into 9 A. I am aware of it. 9 the pot? 10 Q. What's your recollection of the Sorel Forge 10 A. I don't know the exact account or amounts or 11 company? 11 how many times. 12 A. My understanding was that Calabrese owed Sorel 12 MR. McCALEB: No further questions. 13 like two hundred and something thousand dollars and Dave 13 MR. MOSEBEY: No redirect for you. 14 Fisher bought the note for a hundred and something 14 (The deposition concluded at 9:40 a.m.) 15 thousand dollars. 15 16 Q. Do you know anything more than that? 16 17 A. That's pretty much it as far as the details 17 18 of -- 18 19 MR. MOSEBEY: That's all the questions I have 19 20 for you. 20 21 EXAMINATION 21 22 BY MR. MCCALEB: 22 23 Q. Mr. Riggleman, during the time that you worked 23 24 at Calabrese and during the time that Mr. Fisher was 24 25 there, was Mr. Fisher a regular employee of Calabrese? 25 10 12 1 A. I don't know his official status, if he was an 1 C E R T I F I C A T 10 N 2 employee or just there as a consultant. I don't know. 2 I, JENNIFER CHANCE, a Court Reporter - Notary 3 That I can't say. 3 Public authorized to administer oaths and take depositions 4 Q. Okay. And you stated that you and he would 4 in the trial of causes, and having an office in Carlisle, 5 discuss various matters pertaining to Calabrese, correct? 5 Pennsylvania, do hereby certify that the foregoing is the 6 A. Yes. 6 testimony of RICHARD RIGGLEMAN. 7 Q. And as a matter of fact, weren't there times 7 I further certify that before the taking of 8 when you went to Mr. Fisher with bills that had to be paid 8 said deposition the witness was duly sworn; that the 9 and asked for money to have these bills paid? 9 questions and answers were taken down stenotype by the 10 said Reporter-Notary, approved and agreed to, and 10 A. I know there was talk back and forth with -- I 11 afterwards reduced to computer printout under the 11 didn't handle the bills or the bill paying, okay, but I 12 direction of said Reporter. 12 knew there were jobs that -- where we needed material 13 I further certify that the proceedings and 13 where we owed and stuff like that. 14 evidence are contained fully and accurately in the notes 14 I can say that I was part of that discussion 15 5 taken by me on the within deposition to the best of my 15 and stuff like that, but he wouldn't have gotten the bills 1 ability, and that this copy is a correct transcript of the 16 directly from me. 17 same. 17 Q. And when you say the discussion, discussion 18 In testimony whereof, I have hereunto inscribed 18 between you and Mr. Fisher? 19 my hand this 29th day of June, 2009. 19 A. And Pat and Joe would be all part of it. 20 20 Q. All part of the same discussion? 21 21 A. I would say eventually, everybody, yes. I Jennifer A. Chance, 22 wouldn't -- you know, me and Dave may have had some 22 Court Reporter-Notary Public 23 individual discussions. Pat and I had some individual 23 24 discussions. Me and Joe have had individual discussions 24 125 so -- 25 3 of 5 sheets Page 9 to 12 of 12 06/28/2009 04:04:00 PM 1 2 3 4 5 6 7 8 9 10 11 12 is 13 14 15 16 17 18 19 20 21 22 23 24 25 ?J L_J 12 C E R T I F I C A T I O N I, JENNIFER CHANCE, a Court Reporter - Notary Public authorized to administer oaths and take depositions in the trial of causes, and having an office in Carlisle, Pennsylvania, do hereby certify that the foregoing is the testimony of RICHARD RIGGLEMM. I further certify that before the taking of said deposition the witness was duly sworn; that the questions and answers were taken down stenotype by the said Reporter-Notary, approved and agreed to, and afterwards reduced to computer printout under the direction of said Reporter. I further certify that the proceedings and evidence are contained fully and accurately in the notes taken by me on the within deposition to the best of my ability, and that this copy is a correct transcript of the same. In testimony whereof, I have hereunto inscribed my hand this 29th day of June, 2009. LTelifer A. Chance, Couft Reporter-Notary Public NOTARIAL SEAL Jennifer A Chance NOTARY PUBLIC Boro of ChembersWrp. Franklin County My Commission Expires 080=1 1 'OT [1] - 5:4 '81 [11- 5:3 1 1 10p] - 1:14 14th[11-5:3 2 2002[21- 5:22, 6:16 2003 [1] - 5:22 2005[11- 6:18 2005-1827111- 1:3 2009121- 1:12,12:19 25th [11- 5:3 26[1]-5:1 27[l) - 5:1 29th 111 - 12:19 3 • s 3[l] - 2:3 9 912) - 1:12, 2:3 9:30 [11-1:12 9:40 [1l - 11:14 A a.m [2) - 1:12, 11:14 ability [21- 4:16, 12:16 account (11- 11:10 accounts [1] - 7:15 accurately [11- 12:14 acquainted 11) - 5:20 ACTION 11] - 1:2 administer [11- 12:3 advice 121 - 8:11, 8:15 advisor (21- 5:18, 5:25 afterwards 111 - 12:11 agreed 111 -12:10 alcohol [1l - 4:15 ALSO [1] - 1:22 amounts 111- 11:10 answer (2) - 3:7, 4:10 answering [21- 4:6, 4:11 answers [11 - 12:9 APPEARANCES[11- 1:16 approved [1] - 12:10 approximate [11- 5:2 area [11- 8:21 assets 121 - 7:17, 7:22 Associates 131 - 5:8, 5:9, 5:17 Associates' l1) - 5:12 assume [1l - 4:11 authorized [11- 12:3 aware [31- 5:18, 6:11, 9:9 B basic [11- 7:24 become 121- 5:20, 5:23 BEFORE [11 - 1:11 beginning 111- 9:1 best [11- 12:15 between [2] - 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6:1 signing [11 - 3:3 sitting [t] - 5:5 SKF [l] - 4:21 son ill-8:8 Sons [81- 4:23, 5:15, 6:4, 6:8, 6:12, 7:2, 7:9, 8:9 SONS ill -1:3 Sorel [31- 9:8, 9:10, 9:12 SOREL [i] - 1:1 specific [11 - 6:3 spent [1] - 6:6 start [11 - 7:14 started [11- 6:15 5 of 5 sheets Page [<otor[ T table [11- 5:6 TAKEN ill - 1:10 task ill - 3:21 tedious [i1- 3:21 terms [21- 6:3, 9:4 testified [21- 3:11, 3:15 testify [l 1- 4:16 testifying Ili - 3:17 TESTIMONY [1] - 2:1 testimony [31- 3:9, 12:6,12:18 THE [1] -1:1 therefore [lI - 4:10 thousand [21- 9:13, 9:15 title ill - 6:11 TO [21 - 2:1, 2:11 today [1] - 3:22 together [21- 6:21, 7:21 track [1l - 6:5 transcribe 11] - 3:23 transcribing [11- 3:22 transcript ill - 12:16 transfer [l1- 7:16 transferred [t1- 7:22 trial 111- 12:4 truthful [11 - 3:18 truthfully 121- 4:12, 4:16 try ill - 7:11 two [21- 3:16, 9:13 V under [21- 3:18, 12:11 understood ill - 4:11 up [31 - 7:19, 11:1, V various ill -10:5 venture ill - 7:10 vs[11-1:2 W waived ill - 3:4 whereof Ill -12:18 witness [31- 3:7, 3:10,12:8 Y years (21- 5:1, 5:2 06/28/2009 04:04:00 PM FIFO-t FFUE 2009 AUG 20 AM iO: 3 6 Irly, SOREL FORGE CO., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA HANOVER ASSOCIATES: Plaintiffs Assignee : V. CALABRESE & SONS, INC., Defendant CIVIL ACTION-LAW : No. 05-1827 CIVIL TERM IN RE: DEFENDANT'S PETITION TO STRIKE OR OPEN JUDGMENT BEFORE OLER, J. ORDER OF COURT AND NOW, this 28`' day of September, 2009, upon consideration of Defendant's Petition for Relief in the nature of a petition to strike or open a judgment, and for the reasons stated in the accompanying opinion, the petition is denied, without prejudice to Defendant's right to file a petition to reassess damages. arlin R. McCaleb, Esq. 219 East Main Street P.O. Box 230 Mechanicsburg, PA 17055 Att rney for Plaintiff eth T. Mosebey, Esq. 10 East High Street Carlisle, PA 17013 Attorney for Defendants BY THE COURT, j f 1 7 J0'esley 01 r., J. 9 k FILES:) ?CLE OF THE FF7:1 7..?6NOTARY 2009 SEP 28 PM 3: t, G Ct,lJi SOREL FORGE CO., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA HANOVER ASSOCIATES: Plaintiff's Assignee : CIVIL ACTION-LAW V. CALABRESE & SONS, INC., Defendant : No. 05-1827 CIVIL TERM IN RE: DEFENDANT'S PETITION TO STRIKE OR OPEN JUDGMENT BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., September 28, 2009. In this civil case involving a debt, Defendant has filed a petition requesting the court to strike or, alternatively, open a confessed judgment entered on a promissory note in 2005 in favor of Plaintiff.' The petition is opposed by Plaintiff's Assignee.2 The basis for Defendant's petition to strike appears to be an alleged absence of a valid confession for the amount owed to Plaintiff's Assignee.3 The basis for Defendant's petition to open is an alleged meritorious defense in the form of full or partial repayment of the note subsequent to entry of the judgment.4 For the reasons stated in the accompanying opinion, Defendant's petition to strike or open the judgment will be denied. STATEMENT OF FACTS By way of background, the following facts do not appear to be in dispute. On March 25, 2009, Defendant Calabrese & Sons, Inc. (Calabrese & Sons) ' Defendant's Petition for Relief, filed April 29, 2009. z Answer to Petition for Relief, filed May 27, 2009. 3 Defendant's Petition for Relief, ¶15-16. 4 Defendant's Petition for Relief, ¶19. executed a promissory note, payable on demand, in the principal amount of $245,288.59 in favor of Plaintiff Sorel Forge Co. (Sorel Forge).5 The note identified Defendant as "a Pennsylvania corporation with a business address of P.O. Box 1667[,] 406 Brandy Lane[,] Mechanicsburg, PA 17055," identified Plaintiff as "a Canadian corporation having its principal place of Business at 100 McCarthy St. Joseph deSorel, Quebec, Canada JR3M8," indicated that payment was to be made "upon demand," 6 and contained the following confession of judgment clause: CONFESSION OF JUDGMENT: The Maker hereby irrevocably authorizes and empowers any prothonotary, clerk or attorney of any court of record within the United States or elsewhere to appear for the Maker and, with or without declaration, to confess judgment at any time or times against each, any or all of the Maker(s) and in favor of the Holder hereof for the above sum plus interest thereon from the date hereof, and for so doing, this Note or a copy of this note, verified by affidavit shall be sufficient warrant. The Maker hereby releases all errors and expressly waives all rights to any stay of execution, sequestration of rents and exemption of any property from levy and sale of execution under any law or rule of court now in force or hereafter enacted. All of the foregoing promises are the joint and several promises of the Maker and shall bind the Maker, its successors and assigns. The Maker and all endorser[s] waive protest, demand and notice of nonpayment of this Note. The authority granted in this Note to confess judgment against Maker shall not be exhausted by any exercise of that authority, but shall continue from time to time and at all times until payment in full of all amounts due under this Note.' Pursuant to the authority of this clause, on April 7, 2005, Defendant's counsels filed the note with the prothonotary of Cumberland County, and the prothonotary entered judgment in favor of Plaintiff Sorel Forge and against ' Promissory Note, filed April 7, 2005. 6 Promissory Note, filed April 7, 2005. ' Promissory Note, filed April 7, 2005. s N.T. 9, Deposition of David Fisher, June 9, 2009. Defendant's counsel ultimately withdrew his appearance in the action. Praecipe, filed September 5, 2006. However, it appears that the firm of Defendant's counsel is still, or again, representing Defendant. 2 Defendant Calabrese & Sons in the amount of $245,288.59.9 On the same date, notice of the judgment was mailed to Defendant. 10 Plaintiff's interest in the judgment was assigned to Plaintiffs Assignee, Hanover Associates, on April 11, 2005.11 The assignment was filed of record on April 15, 2005.12 On March 31, 2009, Plaintiff's Assignee filed notice of its intention to execute upon the judgment. 13 Defendant responded with the petition sub judice to strike or, alternatively, open the judgment, on April 28, 2009.14 With respect to Defendant's request that the judgment be stricken, Defendant's petition asserts rather generally that "[t]o the best of Defendant's knowledge and upon a review of the docket entries in this matter, no judgment has ever been entered against Defendant based on the Promissory Note.i15 It adds that "[b]efore any execution on the Promissory Note may proceed, a confession of judgment must be entered pursuant to Pa. R.C.P. 2950 et seq."16 A review of Defendant's brief on the issue indicates that Defendant maintains that evidence, testimonial and otherwise, would show that subsequent to the judgment the parties agreed to reduce the debt represented by the note to $100,000 plus any additional money "invested" by Plaintiff's Assignee in Defendant, that Defendant paid the $100,000 to Plaintiff's Assignee and received no additional funds from Plaintiff's Assignee, that the original confession of judgment was thus no longer operative in terms of its amount, and that the record 9 Promissory Note, filed April 7, 2005; Docket, Sorel Forge Co. v. Calabrese & Sons, Inc., No. 05-1827 Civil Term. 10 Docket, Sorel Forge Co. v. Calabrese & Sons, Inc., No. 05-1827 Civil Term. " Assignment of Judgment, filed April 15, 2005. 'Z Assignment of Judgment, filed April 15, 2005. 13 Notice under Pa.R.C.P. No. 2958.1 of Judgment and Execution Thereon, filed March 31, 2009. 14 Defendant's Petition for Relief, filed April 28, 2009. 15 Defendant's Petition for Relief, 17. 16 Defendant's Petition for Relief, ¶16. 3 accordingly contained no effective confession of judgment for purposes of execution on behalf of Plaintiffs Assignee. 17 Given the absence in the record of a new confession of judgment in the reduced amount, Defendant maintains that the judgment relied upon by Plaintiff's Assignee must be stricken. 18 With respect to Defendant's request that the judgment be opened, Defendant's petition asserts that "Defendant has paid the amount of the Promissory Note in full."19 In this regard, it alleges that a "Judgment Release filed on September 5, 2006, acknowledges a partial satisfaction of the Promissory Note,"20 that "Defendant and Hanover Associates also negotiated the amount of the Promissory Note to be for $100,000,"21 and that "[t]hereafter ... Defendant satisfied the balance of the [p]romissory [n]ote."22 In response to Defendant's petition to strike or open the judgment, the court issued a rule to show cause pursuant to Pennsylvania Rule of Civil Procedure 2959(b), providing for the filing of an answer to the petition and the establishment of an evidentiary record by way of depositions.23 Plaintiff's Assignee filed an answer 24 denying that payments made by Defendant to Plaintiff's Assignee subsequent to the judgment were intended to be applied to the judgment debt2S and denying that the parties had agreed to reduce the principal amount of the debt represented by the assigned note. 26 " Defendant's Brief in Support of Defendant's Petition for Relief, submitted August 14, 2009. 18 Defendant's Brief in Support of Defendant's Petition for Relief, submitted August 14, 2009. 19 Defendant's Petition for Relief, $19 (emphasis in original). 20 Defendant's Petition for Relief, $20. 21 Defendant's Petition for Relief, $21. 22 Defendant's Petition for Relief, ¶23. 23 Order of Court, May 6, 2009. 24 Answer to Petition for Relief, filed May 27, 2009. 25 Answer to Petition for Relief, ¶19. 26 Answer to Petition for Relief, $21. 4 Depositions were taken of (a) David Fisher, a general and limited partner of Plaintiff's Assignee, Hanover Associates, and a certified public accountant who at one time performed professional services for Defendant Calabrese & Sons,27 (b) Joseph A. Calabrese, president and owner of Defendant Calabrese & Sons '28 (C) Joseph A. Calabrese, II, an employee of Defendant Calabrese & Sons, 29 and (d) Richard Riggleman, a former employee of Defendant Calabrese & Sons.30 In summarizing the evidence in support of Defendant's request to open the judgment, Defendant's brief states the following: As evidence of at least a partial satisfaction of the Sorel Note, Calabrese has submitted [a certain] Judgment Release which was filed on September 5, 2006, which clearly states that it partially satisfies the judgment entered at this caption. In addition, written ledgers submitted by David Fisher, President of Hanover, confirms that only $100,000.00 was paid for the Sorel Note; therefore, the amount of the principal was reduced to $100,000.00. Furthermore, according to the testimony of Joe Calabrese, the entire amount of the Sorel Note was paid in full. Oral argument was held on Defendant's petition to open or strike the judgment on August 20, 2009. DISCUSSION General. A petition to strike a confessed judgment and a petition to open a confessed judgment request distinct remedies and are generally not interchangeable. Weinberg v. Morgan, 186 Pa. Super. 322, 325, 142 A.2d 310, 312 (1958). Petition to strike judgment. With regard to a petition to strike a judgment, the court may look only at the facts of record at the time judgment was entered to decide if the record supports the judgment. Id. A petition to strike will not be granted unless a fatal defect in the judgment appears on the face of the record. Germantown Sav. Bank v. Talacki, 441 Pa. Super. 513, 519, 657 A.2d 1285, 1288 2' N.T. 4-5, Deposition of David Fisher, June 9, 2009. 28 N.T. 3-4, Deposition of Joseph A. Calabrese, June 9, 2009. 29 N.T. 4, Deposition of Joseph A. Calabrese, June 9, 2009. 30 N.T. 3-4, Deposition of Richard Riggleman, June 9, 2009 5 (1995). Matters outside the record may not be considered and, if the record is self- sustaining, the judgment will not be stricken. Id. In 2005, one method by which a judgment could be entered by the prothonotary pursuant to a confession of judgment clause was provided for in Pennsylvania Rule of Civil Procedure 2951(a): (a)(1) Upon filing of the documents required by subparagraph (2), the prothonotary shall enter judgment by confession on a note ... confessing judgment or authorizing confession by an attorney at law or other person against the person who executed it in favor of the original holder or, unless expressly forbidden in the instrument, in favor of the assignee or other transferee without the agency of an attorney and without the filing of a complaint, for the amount which may appear to be due from the instrument. The judgment may include interest computable from the instrument. (2) The documents to be filed in support of the entry of judgment are (i) the instrument (ii) an affidavit that the judgment is not being entered by confession against a natural person in connection with a consumer credit transaction, and (iii) a certificate of residence of the plaintiff and of the defendant. The method outlined in this provision is, or was in 2005, appropriate where the amount due at the time of the judgment is ascertainable from the face of the instrument '31 as in the case of a demand note. See generally, P. Mining Co. v. Carter, 113 Pa. Super. 231, 232, 173 A.2d 726 (1934). In the present case, at the time the judgment was entered against Defendant in 2005 the amount due was ascertainable from the face of the note and an entry of judgment pursuant to former Pennsylvania Rule of Civil Procedure 2951(a) was permissible. Although affidavits did not accompany the filing of the note, (a) the residences of the Plaintiff and Defendant were stated in the note and the fact that the judgment was not being entered against a natural person in connection with a consumer credit transaction was self-evident from the note, (b) Defendant waived "all errors" in connection with the confession of judgment, and (c) judgment was 31 Krevolin & Co. v. Tharp, 178 Pa. Super. 236, 238, 115 A.2d 856, 857 (1955). 6 entered at the instance of Defendant's own attorney. Under these circumstances, the court is unable to conclude that the judgment relied upon by Plaintiffs assignee was fatally defective on the face of the record at the time of its entry, nor has the court found authority for the proposition that events subsequent to the entry of a valid judgment can retroactively create such a defect for purposes of a motion to strike. Petition to open judgment. A petition to open a confessed judgment is an appeal to the court's equitable powers and is a matter of judicial discretion. Acquilino v. Philadelphia Catholic Archdiocese, 2004 PA Super 339, ¶33, 884 A.2d 1269, 1283. "[A] petition to open rests within the discretion of the trial court and may be granted if the petitioner (1) acts promptly, (2) alleges a meritorious defense, and (3) can produce sufficient evidence to require submission of the case to a jury. BAIT Partnership, LP v. E. Pointe Properties I, Ltd., 2008 PA Super 225, ¶4, 957 A.2d 1275, 1277 (citations omitted). The petitioning party bears the burden of producing sufficient evidence to substantiate its alleged defenses. Weitzman v. Ulan, 304 Pa. Super. 204, 209, 450 A.2d 173, 176 (1982) (citations omitted). The standard of sufficiency a court must employ is that applicable to a directed verdict, viewing all the evidence in the light most favorable to the petitioner. Id. A petition to open judgment is the proper method of seeking relief from a judgment where the irregularity of the judgment is dependent on matters outside the record. Acquilino v. Philadelphia Catholic Archdiocese, 2004 PA Super 339, ¶33, 884 A.2d 1269, 1283. On the other hand, the fact that a defendant has a setoff as to the plaintiffs claim is not a ground for opening the judgment. See Harrison v. Galilee Baptist Church, 427 Pa. 247, 252, 234 A.2d 314, 316 (1967). As a general rule, a petition to reassess damages is the proper vehicle for securing relief from the amount of a judgment based upon subsequent events. See generally, Spitzer v. Buten et. al, 306 Pa. 556, 160 A.2d 444 (1932) (citations omitted). 7 In the present case, it appears to the court that any defense being asserted to the judgment in question goes not to the propriety of the judgment, but to the amount of damages, if any, which remain due on the judgment as a result of events occurring after its entry. As with any judgment where it is alleged that full or partial satisfaction of it has occurred after its entry, the remedy of a debtor in Defendant's position lies not with an opening of the judgment and retrial on plaintiff's claim, but with a petition to reassess damages based upon full or partial payment following the entry of the judgment, or upon some other change in the amount due arising out of a post judgment event. Accordingly, the following order will be entered: ORDER OF COURT AND NOW, this 28th day of September, 2009, upon consideration of Defendant's Petition for Relief in the nature of a petition to strike or open a judgment, and for the reasons stated in the accompanying opinion, the petition is denied, without prejudice to Defendant's right to file a petition to reassess damages. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Marlin R. McCaleb, Esq. 219 East Main Street P.O. Box 230 Mechanicsburg, PA 17055 Attorney for Plaintiff Seth T. Mosebey, Esq. 10 East High Street Carlisle, PA 17013 Attorney for Defendants 8 F:\FQ.ES\Clients\l1093 Calabrese\I I093.2.pet7.wpd\tde Created: 9/20/04 0:06PM Revised: 10/12/09 2:58PM 11093.11 David A. Fitzsimons, Esquire I.D. No. 41722 Seth T. Mosebey, Esquire I.D. No. 203046 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant SOREL FORGE CO., IN THE COURT OF COMMON PLEAS OF Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA HANOVER ASSOCIATES, Plaintiff's Assignee V. CALABRESE & SONS, INC., Defendant NO. 2005-1827 CIVIL ACTION - LAW PETITION TO REASSESS DAMAGES AND NOW, comes the Defendant, Calabrese & Sons, Inc., by and through its attorneys, MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, and files this Petition to Reassess Damages, and in support thereof, avers the following: 1. Defendant Calabrese & Sons, Inc. ("Defendant") is a Pennsylvania corporation with a principal place of business at 406 Brandy Lane, Mechanicsburg, Cumberland County, Pennsylvania. 2. Sorel Forge Co. ("Plaintiff') is a Canadian corporation having its principal place of business at 100 McCarthy St. Joseph deSorel, Canada J3R 3M8. 3. Hanover Associates is a Pennsylvania limited partnership with a registered office address of 311 East Elmwood Avenue, Mechanicsburg, Cumberland County, Pennsylvania. 4. On or about March 25, 2005, Plaintiff and Defendant entered into a Promissory Note pursuant to which Defendant agreed to repay a loan from Plaintiff in the amount of $245,288.59. A true and correct copy of the Promissory Note is attached hereto and incorporated as Exhibit "A." 5. The Promissory Note was filed on April 7, 2005. 6. On or about April 15, 2005, Plaintiff filed an Assignment of Judgment which assigned and transferred to Hanover Associates all of Plaintiff's right, title and interest in a judgment entered against Defendant in the above-captioned action. A true and correct copy of the Assignment of Judgment is attached hereto and incorporated as Exhibit "B." 7. Prior to transferring the Promissory Note to Hanover, Joe Calabrese, the President of Calabrese & Sons, Inc., and David Fisher, the President of Hanover Associates, negotiated with a representative of Plaintiff to discount the payoff amount of the Promissory Note to $100,000.00. 8. On September 5, 2006, a Judgment Release was filed which released real property known as New Lot 2 from the judgment entered on the Promissory Note. A true and correct copy of the Judgment Release is attached hereto and incorporated as Exhibit "C." 9. The Judgment Release filed on September 5, 2006, acknowledged a partial satisfaction of the amount of the Promissory Note. 10. Defendant has satisfied the balance of the Promissory Note. 11. On March 31, 2009, Hanover Associates filed aNotice Under Pa. R.C.P. No. 2958.1 of Judgment and Execution Thereon notifying Defendant that a judgment in the amount of $245,288.59 had been entered against it and that its money and property may be taken within thirty (30) days of the date of the Notice. A true and correct copy of the Notice is attached hereto and incorporated as Exhibit "D." 12. Because the payoff amount of the Promissory Note was discounted to $100,000.00 and because the Judgment Release filed on September 5, 2006, acknowledged a partial satisfaction of the amount of the Promissory Note, the amount of damages in this matter must be reassessed to reflect the accurate payoff amount, if any, of the Promissory Note. 13. Defendant previously filed a Petition to Strike or Open Judgment in this matter. 14. By Order of Court dated September 28, 2009, Judge Oler denied the Petition to Strike or Open Judgement without prejudice to Defendant's right to file a petition to reassess damages. 15. Judge Oler previously ruled on issues in this matter. WHEREFORE, this Court should reassess the balance, if any, remaining on the Promissory Note. MARTSON LAW OFFICES By ? S P",WIJ David A. Fitzsimons, squire I.D. No. 41722 Seth T. Mosebey, Esquire I.D. No. 203046 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: 16//11/69 Attorneys for Defendant EXHIBIT A 04/04/2005 13:33 7172431850 ,:trt ran?TatK@Cw 16W maw 5 245,288.59 MM PRONMORY NOTE PAGE 03/10 Dated: March 25, 2405 Cumberland. County, Pcmnsylvama PROMISE TO PAY: FOR VALUE RBCEIVBD, CALABRESE & SONS, INC., a Pm msylvmia corporation with a business address of P.O. BOX 1667 406 Brandy Lane Meclumicsburg, PA 17055 ("Makee) promises to payto SOREL FORGE CO., a Canadian corporaftbkiing its principal place ofbusiness at 100 McCarthy St. TosephWOOL Quebec, Canada J3R3P4, ") or to themder thereof, in lawful money of the United States ofAmetica, the principal amount of Two HwrdredForty Five Thousand, Two Hundred EightyEi&Dollanand FiftyNine Cents ($245,288.59), togeftrwith interest on tint unpaid principal balance from the date of this Instrument until paid in full. PAYMENT: Maker will pay this loan in accordance with the following payment scWule: Payment upon demand. Maker will pay Holder at Holder's address shown above or at such ether place as Bolder may d esi grate in writing. Unless otherwise agreed or required by applicable Jaw, payments will be applied first to accrued unpaid interest, tben to principal, and any remdIsImS amount to any =paid costs and late charges. PREPAYMENT: Maker may pay, without penety, all or a portion of the =oust owed eater tbgzt it is due. Early payments will not, unlesa agreed to by Holder in writi& relieve Maker of Maker's obligation to continue to make paymenU under the above payment schodule, Rattwr, they will reduce the principal balance due and may reault in Maher malting fewer payments. DEFAULT: Maker will be in default if any of the followirig occurs: (a) Maker fails to make my payment when due; (b) Maker breaks any promiea Maker has made to Holder, or Maker fails to puform promptly at the time zad strictly in the wanner provided in this Note, or any egwment related to this Nate; (c) Maker defaults under any loan, extension of Credit, security aSreem,eat, purchase or sales agreement, or anyother agreement, in favor of any other ereditoi orperson thatmay materially affect any of the Make6 property or Maker'` ability to repay this Note or padb= Makers obligations under this Nate or any related ag =mcnt; (d) any repmeenWou or statement made or Runished to Holder by Maker or on Maker's behalfis false or misleading in any material respect; (e) Maker becomes insolvent, a receiver is appointed for any part of Maker's property, Maker maker an assignment for the benefit of creditors, or any proceeding is commenced either by Maker or against Maker undex a,nybankruptcyor insolvency laws; (f) any creditor trios to take any ofMaker's property on which the Holder has a lien or security interest; (g) any of the events described in this default section occum with -respect to any guarantor of this Note; (h) Holder, in good faith, deems Holder irlseeme, 04/04/2005 13:33 7172431850 MDW0 PAGE 04110 CONnSSION OF JUDGMERT.- The Maker hereby imvocably vAods nd empowers any prothonotary, clerk or attomcy of any coon of record within the United Ststes or elsewhere to appear for the Maker and, with or without declaration, to confess judgment at any time or times against each, any or all of the Maker(s) and in favor of the Holder hereof for the above sum plus interest thereon from the date hereof, and for so doing, this Note or a copy of this note, verified by af6davit shall be sufficient warrant. The Makcr h=by releases all errors and exprusly waives all rights to any stay of execution, sequestration of rents and exewptiou of any property A= levy and sale of eieCl da wader any law or rule of court now ire force or Me er enacted. All of the foregoing promises are the j oinr and several promises of the Maker and shall bind the Maker, its successors and assigns. The Maker and all endorser waive protest, demand and uotica of nonpayment of this Note. The authority granted in this Note to confess judgment against Maker shall not be mdmu wdby any exercise ofthat authority, but shall continue from. Hume to time aad at all times until payn=t in fall of all amounts due under this Note, HCLDWS RIGHTS: Upon default, Holder may declare the entire unpaid prineipalbalance onus Note and all accrued unpaid interest kmanodiately due, withow notice, and than lidaket will pay that amount, Holder may hire or payaoracone olse to help eolloOthfs Nobs ifM" does rotpay. Maker will also pay Holder that amount. This includes, subjeetto any appliooble low, Holder's attorney's fim and legal and court expenses whether or not there is a lawsW4 imcludittg attorney's fees and holder's legal expenses for bankruptcy proceedings ( including efforts to tnodifyorvaoate my awomatic stay or injunction ), appeals, and any other post-judgment collection costa and ser vice& Maker will also pay any court costs, in addition to all other sums provided by law, If judgment is entered in connection with this Note, interest will continue to accrue on this note after jndg runt at the rare applicable to this Note at the time judgment is entered The reurodies provided to the Holder in this document in the event of a dethult or a breach of the conditions bterai% shall not be c*wkued to be exclusive of any other remedy available to the Holder and the Hok* may exeivim any resnady a ; enable to Holder. Additionally, the exercise of anyone remedy shall not be considered a waiver of all those other remedies available to the Holder. GENERAL PROVISIONS: The interpretation and construction of this Note along with the rights and remedies available to the parties hereto shall be governed by the laws of the Comatonwealth of Pennsylvania. If any provision of this agreement shall be held invalid or unceorceable, such shall not a:Tmt any other provision of the Note, This Note r0pr+eseat8 the entire avvement between the Maker and Folder. No waiver or modification of the terms of d is note Shall be valid We= in writing, signed by the Maker and Holder 04/04/2005 13:33 7172431650 MDWQ PAGE 05/10 PRIOR TO SIGNING THIS NOTE, MAKER ACKNOWLEDGES THAT Tf HAS BEEN REPRESENTED BY LEGAL COUNSEL IN CONNECTION WITH THB EXECUTION AND DELIVER'S' OF THIS NOTE, THAT IT HAS READ AND UNDERS'T'OOD ALL THE PROVISIONS OF THIS NOTE, INCLUDING THE CONMSION OF JUDGMENT PROVISION. MAKER AGREES TO THE TERMS OF THE NOTE AND ACKNOWLEDON RBCE PT OF A COMPLETED COPY OF Tms NOTE. S day of I wFXEREOF, Makcar has caused this Note to be executed under seal this? ? ATTEST: 1 CALA.BRWE & SONS, INC. ? BF - v s r? Q •' 1 d rzi r • 1 C ? Y b s 4 S u t7 -C N i Cf1 _4 EXHIBIT B 84/04/2005 13:33 7172431850 MDWO PAGE 09/10 Mar 24 OS 12:13p CHLRBRESE a SONS ?176870sD6 p.5 EXHIBIT "A" IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SOREL FORGE CO., Plaintiff No. 05-1827 - Civil Y. CALABRESE A SONS, INC., Civil Action , Law Defendant ASSIGNMED T OF JUDGMENT FOR VALUE RECEIVED, Plaintlrr, SaW Forpa Co., her *W assigns, transfers and sets over to HanoverAsso0otes. a PenrnsylvaNa limkod porkenahlp. sil of Plainflll'a right, We and Irderest In and to the judgment entered against Dsl'erident. Calabreaa A Sorts, Inc., in the captioned action. April 11?, 2005 FIRM fZC Sa?I NAOF 4 Co. Bfty Addr"n: luoe M k , Ruh McCARt'?is? At7 for Sorel FbW Cm L- fantAuA c3R -3MI -4. © b 1"' ' 1 1 A%L r..° J ?h C17 ;: r?•;. EXHIBIT C . & . 0% 0 bwpwir%aients\RSR Misc\Calabme.JUDGMENT RELEASE4245,288,59.doc HANOVER ASSOCIATES, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, : PENNSYLVANIA V. : NO. 20W01827 CALABRESE & SONS, INC., :$245488.59 Defendant : JUDGMENT IN FAVOR OF PLAINTIFF GM ENT RELEASE WHEREAS, Plaintiff entered a judgment against Defendant on April 7, 2005, to the docket number as referenced above; and WHEREAS, the Defendant is the owner of a certain parcel of land located in Mechanicsburg Boro and Hampden Township, Cumberland County, Pennsylvania more commonly known as 406 Brandy Lane; and WHEREAS, on April 2, 2006 Defendant filed a Preliminary/Final Subdivision Lot Consolidation Plan to Cumberland County Plan Book 92 Page 44 subdividing what was commonly known as 406 Brandy Lane into two separate lots shown on said Plan as New Lot 1 and Now Lot 2; and WHEREAS, in consideration of the Defendant partially satisfying the above-referenced judgment, Plaintiff has agreed to release the New Lot 2, as more fully described on Exhibit A attached hereto, from the lien and operation of the above-referenced judgment. NOW THEREFORE, HANOVER ASSOCIATES, Plaintiff in the above Judgment, does appear and acknowledge that she has this day received from CALABRESE & SONS9 INC., the Defendant in the above Judgment, PARTL4L payment and satisfaction of the same, with interest and costs, and desires that this Judgment Release be entered upon the records thereof only as it effects the New Lot 2. New Lot 2 is hereby released ftom the lien, operation and effect of the said judgment. This Judgment shall, until satisfied of record, remain in full force and effect against the New Lot 1. And further, it does hereby authorize and empower the Prothonotary of said Court to appear for it and in its name and stead to enter the Judgment Release upon the record of said Judgment, as fully and effectually, to all intents and purposes as it could, were it present to do so. And for so doing this shall be your sufficient warrant of authority. IN WITNESS WHEREOF, the Plaintiff has caused these presents to be signed this 0_ day of June, 2006. ATTEST: HANOVER ASSOCIATES V"g" 2 _'J :?? By: Its: • 0 # .'1 0 CUNNINGHAM & CHERNICOFFi P By. Robert E. Cherni c ?? Sup. Ct. ID No. ?- P.O. Box 60457 Harrisburg, PA 17106-0457 (717) 238-6570 P*)* fnVients\RSR MiscTalabrescMDGMENT RELEASE.S245.288.59.doe COMMONWEALTH OF PENNSYLVANIA ) SS. COUNTY OF Z) cu(c I!,t- ) On this, the ?'7 ?' day of 2006, before me, a Notary Public, the undersigned officer, personally appeared , J4z , known to me (or satisfactorily proven) to be the person whose name is subscribed as agent for EL4NOVER ASSOCIATES, and acknowledged that he/she executed the same as the act of his/her principal for the purpose therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. a-mzl? Publte JvuEANNE Am? ?-- P,ak CkY of H8ffMUr9, PA Dow'* My Cownkww EXPkW fsb. 22CMW 2007 ALL THAT CERTAIN piece or parcel of land, situate, lying and being in Mechanicsburg Borough, Cumberland County shown as New Lot 2 on the Calabrese & Sons, Inc. Preliminary/Final Subdivision/Lot Consolidation Plan Recorded April 3, 2006 in the Cumberland County Recorder of Deeds Office in Plan Book 92 Page 44 to wit: BEGINNING at a point on the southern side of Brandy Lane at a 5/8 inch rebar with cap thence South 27 degrees 04 minutes 00 seconds East a distance of 376.89 feet to a point thence North 37 degrees 14 minutes 52 seconds East a distance of 509.19 feet to a point thence North 37 degrees 05 minutes 01 seconds East a distance of 66.58 feet to a point thence South 42 degrees 05 minutes 07 seconds East a distance of 179.93 feet to a point thence South 24 degrees 27 minutes 41 seconds East a distance of 490.52 feet to a point thence South 65 degrees 27 minutes 00 seconds West a distance of 593.70 feet to a point thence North 27 degrees 04 minutes 00 seconds West a distance of 744.09 feet to a point thence North 40 degrees 20 minutes 30 seconds East a distance of 54.16 feet to a point and place of BEGINNING. CONTAINING 7.628 acres more or less. Certificate of Service AND NOW, this 9_I___ day of 2006, I hereb verfy i true and correct copy y that I have caused a of the foregoing Praecipe to be placed in the U.S. Mail, first class, postage prepaid and addressed as follows: Robert E. Chernicoff, Esquire 2320 North Second Street Harrisburg, PA 17110-1008 and hand-delivered to: David A. Fitzsimons, Esquire 10 East High Street Carlisle, PA 17013 Monica D. ercher Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011 (717) 763-1383 a ? O 11 v? c? C? w u'+ N cr. n 'ice -n n L Q Ix vi EXHIBIT D L SOREL FORGE CO., : IN THE COURT OF COMMON PLEAS OF Plaintiff. : CUMBERLAND COUNTY, PENNSYLVANIA V. No. 05-1827 - CIVIL CALABRESE & SONS, INC., Defendant CIVIL ACTION - LAW NOTICE UNDER Pa.R.C.P. No. 2958.1 OF JVDGI= AND EXECUTION TBERSON Notice of Defendant's Ri is TO: CALABRESE & SONS, INC. (Defendant) 406 Brandy Lane Mechanicsburg, PA 17055 A judgment in the amount of $245,288.59 has been entered against you and in favor of the Plaintiff without any prior notice or hearing based on a confession of judgment contained in a written agreement or other paper allegedly signed by you. That judgment was assigned by the Plaintiff to Hanover Associates, assignee herein, on April 11, 2005. The sheriff may take your money or other property to pay the judgment at any time after 30 days after the date on which this Notice is served on you. You may have legal rights to defeat the judgment or to prevent your money or property from being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN 30 DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH LAW OFFICES 'I BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT MARLIN R. MCCALEB HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE: Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 Respectfully submitted, Marlin R' McCaleb Attorney I.D. No. 06353 219 East Main Street P.O. Box 230 Mechanicsburg, PA 17055 (717) 691-7770 FAX: (717) 691-7772 Attorney for Hanover Associates, Assignee herein LAW OFFICES MARLIN R. MCCALEB i -2- i i i I CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the .within Notice Under Pa.R.C.P. No. 2958.1 of Judgment and 'Execution Thereon was served upon the following counsel on March 31, 2009, by depositing same in the mail at the United !states Post office at Mechanicsburg, Pennsylvania, postage ,prepaid, properly addressed as follows: David A. Fitzsimons, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 Monica D. Zercher Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011 Marlin Mc leb Attorney I.D. No. 06353 219 East Main Street P.O. Box 230 j Mechanicsburg, Pennsylvania 17055 (717) 691-7770 FAX: (717) 691-7772 Attorney for Hanover Associates LAW OFFICES MARLIN R. MCCALEB -3- Fl LF C? TH,c pp.- r' '<1^ A,HY 2009 MAR 31 AN 10: 4 0 D' _ 114 CV.14 I M I, Joseph Calabrese, President of Calabrese & Sons, Inc., hereby verify that I am authorized to sign this Verification and have reviewed the foregoing document and to the extent that the foregoing document contains facts supplied by or known to me, they are true and comet to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S.A. §4904, relating to unworn falsification to authorities. Calabrese & Sons, Inc. ell, VVLLES CYwuIM7 Cdaw" I= 2 pM1..}I CERTIFICATE OF SERVICE I, Jacqueline A. Decker, an authorized agent for Martson Law Offices, hereby certify that a copy of the foregoing Defendants' Petition to Reassess Damages was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Marlin R. McCaleb, Esquire 219 East Main Street P.O. Box 230 Mechanicsburg, PA 17055 (Attorney for Plaintiff's Assignee) MARTSON LAW OFFICES By: eq ine A. Decker ffn st High Street Carlisle, PA 17013 (717) 243-3341 Dated: October 14, 2009 r: ', r OF T i ?? f,. y SOREL FORGE CO., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW CALABRESE & SONS, INC., ; Defendant NO. 05-1827 CIVIL TERM IN RE: DEFENDANT'S PETITION TO REASSESS DAMAGES ORDER OF COURT AND NOW, this 16`' day of October, 2009, upon consideration of Defendant's Petition to Reassess Damages, 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. Depositions shall be completed within 49 days of the date of this order; 5. Argument shall be held on Monday, January 11, 2009, at 1:30 p.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. 6. Briefs shall be submitted at least seven days prior to argument. 7. Notice of the entry of this order shall be provided to all parties by petitioner. BY THE COURT, J. Wesley Oler,`Jr., J. ? Marlin R. McCaleb, Esq. 219 E. Main Street P.O. Box 230 Mechanicsburg, PA 17055 Attorney for Hanover Associates (Plaintiff s Assignee) llavid A. Fitzsimons, Esq. Seth T. Mosebey, Esq. 10 East High Street Carlisle, PA 17013 Attorneys for Defendant :rc 00(??"ES I - t ` ,: ; } F:\FILES\Clients\11093 Calalxes6l 1093.2rwt3.wpd\tde Created: 9/20/04 0:06PM Revised: 12/30/09 3:19PM 11093.11 David A. Fitzsimons, Esquire I.D. No. 41722 Seth T. Mosebey, Esquire I.D. No. 203046 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant SOREL FORGE CO., IN THE COURT OF COMMON PLEAS OF Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA HANOVER ASSOCIATES, Plaintiff's Assignee V. NO. 2005-1827 CALABRESE & SONS, INC., CIVIL ACTION - LAW Defendant MOTION TO SATISFY JUDGMENT AND NOW, comes the Defendant, Calabrese & Sons, Inc., by and through its attorneys, MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, and files this Motion to Satisfy Judgment and in support thereof, avers the following: 1. On October 14, 2009, Calabrese & Sons, Inc. ("Calabrese") filed a Petition to Reassess Damages ("Petition"). 2. Calabrese's Petition related to an Assignment of Judgment which assigned and transferred to Hanover Associates ("Hanover") all of Sorel Forge Co.'s right, title and interest in a judgment entered on a Promissory Note against Calabrese in the above-captioned matter. 3. Calabrese and Hanover disputed the balance remaining on the Promissory Note. 4. In Paragraph 10 of its Petition, Calabrese alleged that it had previously satisfied the balance of the Promissory Note. 5. On October 16, 2009, Judge Oler issued an Order of Court requiring Hanover to file an answer to Calabrese's Petition within twenty-one (21) days of the date of the Order of Court. 6. Hanover has determined that it will not file an Answer to Calabrese's Petition. 7. Counsel for Hanover has informed counsel for Calabrese that Hanover no longer wishes to pursue this matter and that Hanover will take no further action regarding this matter. i 8. Pennsylvania Rule of Civil Procedure No. 206.7(a) states that "[i]f an answer is not filed, all averments of fact in the petition may be deemed admitted for the purposes of this subdivision and the court shall enter an appropriate order." 9. Because no Answer was filed, the averments of Calabrese's Petition should be deemed admitted. 10. If Calabrese's averments are deemed admitted, then the Court should enter an order holding that Calabrese has satisfied the Promissory Note at issue in this matter. 11. Judge Oler was previously assigned to this case. WHEREFORE, Defendant Calabrese & Sons, Inc., requests that this Court enter an Order marking the judgment in this matter satisfied and directing the Prothonotary to mark the judgment entered on the Promissory Note as "satisfied." MARTSON LAW OFFICES By David A. Fitzsimon§VEsquire I.D. No. 41722 Seth T. Mosebey, Esquire I.D. No. 203046 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant Date: ,l1101 CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent for Martson Law Offices, hereby certify that a copy of the foregoing Defendant's Motion to Satisfy Judgment was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Marlin R. McCaleb, Esquire 219 East Main Street P.O. Box 230 Mechanicsburg, PA 17055 (Attorney for Plaintiff's Assignee) MARTSON LAW OFFICES A ft By: Price Te t High Street Carlisle, PA 17013 (717) 243-3341 Dated: December3l1 2009 Tr µr "??'t, . L ; 'r Lt?4ti? ??'.. ... ..a. SOREL FORGE CO., Plaintiff, HANOVER ASSOCIATES, Plaintiff s Assignee V. CALABRESE & SONS, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-1827 CIVIL ACTION - LAW ORDER AND NOW, this day of zx? , 201 D, upon consideration of the foregoing Motion to Satisfy Judgment, it is hereby ORDERED that the judgment entered against Calabrese & Sons, Inc., at the above-referenced docket number be marked satisfied. The Prothonotary is directed to mark the docket accordingly. BY THE COURT: tl? J. Distribution: 4 a vid A. Fitzsimons, Esquire rlin R. McCaleb, Esquire cn_- 0 ?i cr mr; ?• m ` co _I c.? t.? JAN 04 2010