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CLEVELAND BROTHERS EQUIPMENT
CO., INC.,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
vs.
CIVIL ACTION NO. OS;- - 19/ re. r; . ! '--r-
L'I.-<Jll I~
S.A. HURLEY EXCAVATION, INC.,
CIVIL ACTION- CONFESSION OF JUDGMENT
FOR POSSESSION
Defendant
CONFESSION OF JUDGMENT
Pursuant to the authority contained in the warrant of attorney, the original or a
copy of which is attached to the complaint filed in this action, I appear for the Defendant, S.A.
Hurley Excavation, Inc. and confess judgment in favor of the Plaintiff, Cleveland Brothers
Equipment Co., Inc., and against the Defendant for possession of the following property:
. One Used Caterpillar 416B Backhoe Loader SIN 8SG017J3
and costs of suit.
'/JU-
B IAN P. DOWNEY (59891)
JUSTIN G. WEBER (89266)
Pepper Hamilton LLP
200 One Keystone Plaza
North Front and Market Streets
Post Office Box 1181
Harrisburg, PA 17108-1181
(717) 255- 1 155
Date: April 13,2005
Attorneys for Plaintiff
Cleveland Brothers Equipment Co., Inc.
CLEVELAND BROTHERS EQUIPMENT
CO., INC.,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff,
vs.
CIVIL ACTION NO. 0S' - /9/ b
C-u:l't-~
CIVIL ACTION- CONFESSION OF JUDGMENT
FOR POSSESSION
SA HURLEY EXCAVATION, INC.,
Defendant.
COMPLAINT IN CONFESSION OF JUDGMENT
NOW COMES plaintiff, Cleveland Brothers Equipment Co., Inc. ("Cleveland
Brothers"), by its undersigned attorneys, and files this complaint for judgment by confession for
possession:
PARTIES
I. Cleveland Brothers is a Delaware corporation with an office located at
5300 Paxton Street. Harrisburg, Dauphin County, Pennsylvania, 17111.
2. On information and belief, defendant S.A. Hurley Excavation, Inc.
("Hurley") is a Pennsylvania business corporation with an address at 50 Fry town Road,
Newville, Cumberland County, Pennsylvania 17241.
INSTRUMENT
3. On or about January 11,2002, Hurley entered into an agreement whereby
Hurley executed and delivered to Cleveland Brothers a Security Agreement for the payment of
the amount due, together with interest on any delinquent payment at 12% per annum (the
"Security Agreement"). (A true and correct copy of the Security Agreement is attached hereto as
Exhibit "A".)
J
4. The Security Agreement gave Cleveland Brothers a security interest in:
. One Used Caterpillar 416B Backhoe Loader SIN 8SGOl713
("the Equipment").
5. On information and belief, the Equipment is currently located at 50
-2-
Fry town Road, in or near the municipality of Newville, in the county of Cumberland, in the
Commonwealth of Pennsylvania.
6. Pursuant to the Security Agreement, Hurley was obligated to pay
Cleveland Brothers $23,860.80, in installments as outlined in Schedule A to the Security
Agreement, commencing in February I I, 2002.
JUDGMENT NOT BEING ENTERED AGAINST A NATURAL PERSON
IN CONNECTION WITH A CONSUMER CREDIT TRANSACTION
7. The judgment is not being entered by confession against a natural person
in connection with a consumer credit transaction.
NO ASSIGNMENT OF THE INSTRUMENT
NO PRIOR ENTRY OF JUDGMENT ON THE INSTRUMENT
8. The Security Agreement was previously assigned, but was reassigned and
is now held by Cleveland Brothers.
9. Judgment has not been entered on the Security Agreement in any
jurisdiction.
DEFAULT
]0. The Security Agreement required Hurley to pay Cleveland Brothers the
amount due commencing February] I, 2002.
] t. To the date of this Complaint, Hurley failed to pay tbe outstanding
amounts due to Cleveland Brothers under the Security Agreement, thereby constituting a default.
1
12. In the Security Agreement, Hurley authorized "the Prothonotary or any
attorney of any court of record" to "appear for and confess judgment. . . in any action to recover
possession of the equipment" in the event of a default.
13. Cleveland Brothers is entitled to immediate possession of the Used
Caterpillar 4] 6B Backhoe Loader SIN 8SG01713.
INSTRUMENT NOT MORE THAN TWENTY YEARS OLD
14. Hurley executed the Security Agreement less than twenty years ago.
-3-
;
DEMAND FOR JUDGMENT
WHEREFORE, as authorized by the warrant contained in the Security
Agreement, Cleveland Brothers demands judgment for possession of the equipment and costs of
suit.
Attorneys for Plaintiff
Cleveland Brothers Equipment Co., Inc,
&j;~~1)
JUSTIN G. WEBER (89266)
Pepper Hamilton LLP
200 One Keystone Plaza
North Front and Market Streets
P.O. Box 1181
Harrisburg, PA 17108-1181
(717) 255-1155
(717) 238-0575 (FAX)
Dated: April \3,2005
-4-
VERIFICATION
I, Jeffrey L. Grimes, hereby state that I am the Credit Manager for Cleveland
Brothers Equipment Co., Inc., and am authorized to make this verification on its behalf. I verify
that the statements made in the foregoing document are true and correct to the best of my
knowledge, information and belief. I understand that the statements in said document are made
subject to the penalties of 18 Pa,C,S. 9 4909 relating to unsworn falsification to authorities.
L. GRIMES
CLEVELAND BROTHERS EQUIPMENT
CO., INC.,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
vs.
CIVIL ACTION NO.
SA HURLEY EXCAVATION, INe.
CIVIL ACTION- CONFESSION OF JUDGMENT
FOR POSSESSION
Defendant
CERTIFICATE OF RESIDENCE
I here by certify that the last known of the address of the plaintiff and defendant
are as follows:
Cleveland Brothers Equipment Co., Inc.
5300 Paxton Street
Post Office Box 2535
Harrisburg, PA 17105
S.A. Hurley Excavation, Inc.
50 Fry town Road
Newville, PA 17241
~h-L1-
R N P. DOWNEY (59891)
JUSTIN G. WEBER (89266)
Pepper Hamilton LLP
200 One Keystone Plaza
North Front and Market Streets
Post Office Box 1181
Harrisburg, PA 17108-1181
(717) 255-1155
Date: April 13, 2005
Attorneys for Plaintiff
Cleveland Brothers Equipment Co., Inc.
-------
t
Cleveland Brothers
I
CAT
..
HARRISBURG-MAIN OFFICE
BOO PA.XTON ST.- PHONE: 717.564-2]21
FRACKYlLLE
PENNSYLVANIA ROUTE 61.PHQNE: 717-874-3560
WHITE DEER
OLD ROUTE lS.PHONE 717-538-2551
STATE COLLEGE
2955 STEWART DRIVE.PHONE: 814-2]7-8]38
WILKES-BARRE
970 WIlKES-BARRE TWP. BLVD-PHONE: 717-822-8141
PHlLlPSBURG
).07 ALDER ST..PHONE- 814.342-4210
MANSFIELD LANCASTER
v,s. ROUTE 6 EAST-PHONE: 717-662-7171 ROUTE 2n-PHONE: '1\7.559...905
SECURITY AGREEMENT
PRICE...........,......................................, $
cESS TRADE ALLOWANCE ...........$
3ALANCE..,......................................... $
,ALES TAX ..,...................................... $
IAULING ..'......................................... $
U>V ANCED PAYMENTS ................. $
NSURANCE .....................'....'............ $
1LINGffERM FEE ........................... $
'OTAL .......,..,...................................... $
CASH WITH ORDER........,...,...... $
CASH ON DELIVERY ....,............$
RENTAL PAYMENTS ............'.... $
kip payments Feb, Mar, 2002 and EACH
lereafter~
17,908.19
0.00
17,908.19
0,00
0.00
3,054.40
0,00
150.00
21,112.59
0.00
0,00
0,00
Jan, Feb, Mar,
NET BALANCE ........................... $
FINANCE CHARGE ..,................ $
TOTAL DUE................................. $
21,112.59
2,748.21
23,860.80
Made on January 11,2002, between
S.A. Hurley Excavation, Inc.
50 Fry town Road, Newville, P A, 17241
(being the debtor and herein called "Buyer"), a corporation, partnership or individual, said address being Buyer's mailing address and place of business or
residence at which the property covered hereby will be located. and Cleveland Brothers Equipment Co., Inc., 5300 Paxton Street, Harrisburg, Pennsylvania
17105 (secured party and herein called "Seller"), said address being Seller's address at which infannation concerning Seller's security interest hereunder may
be obtained.
Buyer and Seller have entered into a certain sales order contract (hereinafter referred to as "the contract") pursuant to which Seller has agreed to
sell and Buyer has agreed to purchase certain equipment. As security for payment of the total due hereon as set forth below, including but not limited to any
and all charges related thereto, and for any amount which may become due and owing Seller by Buyer pursuant to the contract for any reason, as well as to
secure the payment and performance by Buyer of any other obligation, which Buyer may have to Seller, either now existing or hereafter incurred or accrued;
Buyer does hereby give Seller a security interest in the equipment, machinery, andlor goods described below, aU of which is hereinafter referred to as "the
equipment":
DESCRIPTION
Refinance: One Used Caterpillar 416B Backhoe Loader, SIN 8SGO 1713
F.O.B.
Buyer will promptly notify Seller and in writing, of any discontinuance of any place of business, the
~stablishment of any new place of business, or any change of location of said property.
Which swn buyer( 5) agree( s) to pay at: Alllirst Bank
in 46 installments of SSe. Scbedule "A" each, and a fmal
installment of $662.80 said installments commencing
February 11, 2002 as evidence by promissory note(s). Any
delinquent payment shall bear interest at 12% from the date of
default.
Buyer agrees: at all tim<<=s to keep the equipment insured in such form, in such form, in such companies, in such amoun's ane' 3?,?;f\S' S\.'c" r.'s'<s 2.$ ""'2V "e ?<:CCtl'.2'::>'r:
to seller, with provisions satisfactory to Seller for payment of all losses thereunder to Seller as its interests may appear, and, if required, to deposit the pOiicies with Sdllr; any slJJi;s
received by Seller in payment of losses under said policies may, al Seller's option, be applied on the balance of the amount owed to Seller by Ruyer whether or not the ;;<lm~ if theT1
due or payable, pr may be delivered by Seller to Buyer for the purpose of repairing or restoring the equipment. Buyer also agrees: that all equipment, J(I;e~sofies and parts now or
hereafter attached or added to the equipment or used in connection therewith shall at onee become part thereof; and that loss, injury or destruction of sa,d equipment shall not release
of reduce Buyer's obligations to Seller, pursuant to the contract, this Agreement, or any promissory notes executed or delivered by Buyer to Seller with !.espect to the contract. In
addition, Buyer agrees: 10 keep the equipment in as good condition as when received, reasonable wear only excepted, and in so doing and at all other jlrrleS to keep the equipment free
and clear of aU liens and encumbrances, voluntary or involuntary; not to sell, or otherwise transfer any interest of Buyer in Ihe equipment; nol to remove the equipmenl fonn the
address at which it is to be located as set forth except for temporary periods in the normal and customary use thereof; to immediately notify Seller in wnting of any seizure of, levy
upon, loss of possession of, destNction of, or damage to the equipment; and to perfonn any defaulted agreements of Buyer; any amounts expended iT', ~;uch performance, with interest
thereon shall be payable by Buyer to Seller on demand and the security interest given herein shall further serve as security for the reimbursement thereof to Seller. Buyer will pay all
costs of filing any financing, continuation, or tennination statements with respect 10 the security interest created by this Agreement; Seller is hereby appointed Buyer's attorney in fact
to do at SeUer's option and at Buyer's ex.pense, all acts and things which Seller may deem necessary to perfect and continue perfected the security interest created by this Agreement
and to protect the equipment.
Buyer shall be in default hereunder upon failure to pay when due any amount payable pursuant to the contact or under any promissory flute which may have been given
to Seller with respect thereto or upon failure to observe and perfonn any of Buyer's obligations pursuant to this Agreement, or if proceedings, in which Buyer is alleged to be insolvent
or unable to pay Buyer's debts as they mature is instituted by or against Buyer under any of the provisions of the Bankruptcy Act or any other Jaw, or if Buyer makes an assignment or
the benefit of creditors. Whenever Buyer is in default pursuant to the contract and all other sums for which contract, said promissory notes, or this Agreement, the entire unpaid
balance owing to ScUer by Buyer pursuant to the contract and all other sums for which Buyer is liable to Seller pursuant to the contracl, said promissory notes, or this Agreement shall
become immediately due and payable at Seller's option without notice to Buyer, and Seller may proceed to enforce payment of the same and to exercise any or a\l of the rights and
remedies afforded by law or equity, and specifically but not ex.elusively, those remedies afforded by Ihe Unifonn Commercial code as enacted in the Commonwealth of Pennsylvania,
and upon demand by seller, Buyer shall assemble the equipment and make it available 10 Seller at a place reasonably convenient to Buyer and Seller.
Buyer hereby authorizes the Prothonotary or any attorney of any court of record, whenever Buyer is in default pursuant to the contract andlor said promissory notes
andlor this Agreement, to appear for and confess judgment as often as necessary against Buyer (1) in any action to recover possession of the equipment and (2) for all sums payable
by Buyer pursuant to the contract, and/or this Agreement and/or said promissory notes, together with 18% thereof added as a collection fee. Buyer waives all errors and appeals, the
right to stay of execution, and the benefit of all exemption laws of any state now or hereafter in effect.
Delay in the exercise of Seller's rights, whether under the contract, this Agreement or said promissory notes, shall not constitute a waiver thereof. The waiver of any
default shall not be a waiver of any subsequent default. Buyer acknowledges that no Qral representations, warranties or guaranties have been made by Seller to Buyer.
Buyer acknowledges that Seller has given notice to Buyer that Seller may assign and/or negotiate to a third pany Seller's rights (1) in the contract, (2) in this Agreement,
and (3) in said promissory notes, a11 for a valuable consideration. To induce said third party to pay said valuable consideration. To induce said third party to pay said valuable
consideration therefor, Buyer, intending legally to be bound hereby, agrees with said third party that (a) upon such assignment and negotiation or other transfer, all rights, powers and
remedies of Sener hereunder and under said promissory notes and pursuant to the contract shall belong to and be ex.ercisable by said third party including but not limited to the power
and right to confess judgement(s) and, upon receipt of notice of sllch assignment or negotiation or other transfer, Buyer will render performance of Buyer's obligations under the
contract, under this Agreement, and under said promissory notes to said third party, rather than to Seller, and (b) in any action brought by said third party against Buyer to recover an)
sums under the contract, under this Agreement, or under said promissory notes, or to recover possession of the equipment, Buyer will not assert as a defense, counterclaim, setoff,
cross complaint, or otherwise any claim, known or unknown, which Buyer now has or hereafter acquires against Seller, ex.cept that Buyer has paid the total amount due Seller
pursuant to the contract. The preceding clause (b) shan not apply if said equipment is "consumer goods" as defined in the Unifonn Commercial Code of Pennsylvania. Despite any
such assignment, Seller shaJJ remain liable to Buyer for the perfonnance of all of Seller's obligations to Buyer, including those arising hereunder.
S,A. Hurley Excavation, Inc. (seal)
By~g i? ~_
(name)
(title)
By
(name)
(title)
By
(name)
(title)
CLEVELAND BROTHERS EQUIPMENT CO., INC.
B
, Grimes, Assistant Secretary
,
..
S.A. Hurley Excavation, Inc.
Schedule "A"
Payment Schedule
Contract 1
Payments 1-2
Payments 3-11
Payments 12-14
Payments 15-23
Payments 24-26
Payments 27-35
Payments 36-38
Payments 39-47
0.00
662.80
0.00
662.80
0.00
662.80
0.00
662.80
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CLEVELAND BROTHERS EQUIPMENT
CO., INe.,
Plaintiff,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVILACTIONNO.DS' -/9/<= C{~J_,~
vs.
SA HURLEY EXCAVATION, INC.,
Defendant.
CIVIL ACTION-CONFESSION OF JUDGMENT
FOR POSSESSION
NOTICE OF ENTRY OF JUDGMENT
TO; S.A. Hurley Excavation, Inc.
Pursuant to the requirements of Pa.R.c.P. No. 236, you are hereby notified that on
April j'-,! ,2005, judgment by confession was entered against you for possession of
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, P A 17013
717-249-3166
· One Used Caterpillar 416B Backhoe Loader SIN 8SG01713
~ ,~0)
H7~ k - ~
Prothonotary U
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE
A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET
FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
and costs of suit.
DATE:
cI-f Ill{ Ius
~ I
".-i
CLEVELANDBROTHERSEQUWMENT
CO" INC.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff.
CIVIL ACTION NO. oS' - /9/t" C~J..)~'i/z....""1
vs.
SA HURLEY EXCAVATION, INC.
Defendant.
CIVIL ACTION- CONFESSION OF JUDGMENT
FOR POSSESSION
NOTICE UNDER RULE 2958.1 OF JUDGMENT
AND EXECUTION THEREON
NOTICE OF DEFENDANT'S RIGHTS
TO: S.A. Hurley Excavation, Inc.
A judgment for possession of
. One Used Caterpillar 416B Backhoe Loader SIN 8SG01713
and costs of the suit, has been entered against you and in favor of the Plaintiff without any prior
notice or hearing based on a confession of judgment for possession contained in a written
agreement or other paper allegedly signed by you. The Sheriff may take your property to satisfy
the judgment at any time after thirty (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 THIRTY (30) DAYS AFTER THE
DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR
RIGHTS.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW.
THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER,
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE
TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER
LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
~
,
I
,
Dated: April 13, 2005
Cumberland County Bar Association
2 Liberty A venue
Carlisle, P A 17013
717-249-3166
~~. Pi U--.-
BR, N P. DOWNEY (59891)
TIN G. WEBER (89266)
Pepper Hamilton LLP
200 One Keystone Plaza
North Front and Market Streets
Post Office Box 1181
Harrisburg, Pennsylvania 17108-1181
(717) 255-1155
Attorneys for Plaintiff
Cleveland Brothers Equipment Co., Inc.
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