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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION, : DOCKET NO. oS - d.<iIS C~u~L~EA....,",""
Plaintiff [
vs.
NWI, INC.,
Defendant
: CONFESSION OF JUDGMENT
: PREVIOUSLY ASSIGNED TO: Nt A
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 and confess
judgment in favor of the PIaintiff and against Defendant as follows:
Principal
$582,497.57
Other authorized items:
Interest to May 9, 2005
Late Charges
Search Fee
Prepayment Fees
Mortgage Satisfaction Fee
Attorneys' Fees
TOTAL:
$ 48,389.62
$ 700.00
$ 50.00
$ 12,123.01
$ 30.50
$ 63,088.72
$706,879.42 plus interest at the rate of
$210.35 per day, from May 10, 2005,
through the date of payment, including on
and after the date of entry of judgment on
this Complaint, and for other expenses,
fees and costs to which the Plaintiff may be
entitled.
Date: May 9, 2005
Respec e, .
::01 , Cll'DSAY
Geoffrey S. Shuff, E uire ID #24848
Matthew J. Eshelman, Esquire ID #72655
2109 Market Street, Camp Hill, PA 17011
(717) 737-3405 (fax) 737-3407
Attorneys for Plaintiff, PNC Bank, National
Association
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNCBANK,NATIONALASSOCIATION, : DOCKET NO.
Plaintiff
vs.
NWI, INC.,
Defendant
: CONFESSION OF JUDGMENT
: PREVIOUSLY ASSIGNED TO: N/ A
COMPLAINT FOR CONFESSION OF JUDGMENT
UNDER RULE 2951
1. The name and address of the Plaintiff is PNC Bank, National Association, 4242
Carlisle Pike, Camp Hill, Pennsylvania 17011.
2. The names and address of the Defendant is NWI, Inc., 210 North Blettner Avenue,
Hanover, Pennsylvania 17331.
3. Defendant NWI, Inc. ("Defendant") executed and delivered to Plaintiff a
Commercial Guaranty dated February 21, 2001 (the "Guaranty"), a true and correct photostatic
reproduction of the original showing the Defendant's signature is attached hereto as Exhibit "A"
and made part hereof.
4. Defendant under the Guaranty, guaranteed to Plaintiff, among other obligations to
the Bank, the payment of all amounts due to Plaintiff by Edward J. Abendschein ("Debtor") under
the Promissory Note dated February 21, 2001 (the "Note") in the original principal amount of
Seven Hundred Fifty Thousand and 00/100 Dollars ($750,000.00), a true and correct photostatic
reproduction of the original is attached hereto as Exhibit "B" and made part hereof.
5. Debtor is in default of Debtor's obligations to make payment to Plaintiff as required
in the Note and Defendant is in default of Defendant's obligations to make payment to Plaintiff
under the Guaranty. Plaintiff has demanded payment in full of all outstanding amounts as provided
in the Note and the Guaranty. A copy of Plaintiff's demand is attached hereto as Exhibit "c" and
made a part hereof.
6. Defendant executed and delivered to Plaintiff a Disclosure for Confession of
Judgment ("Disclosure for Confession"), a true and correct photostatic reproduction of the original
of which is attached hereto as Exhibit "D" and made a part hereof.
7. Judgment is not being entered by confession against a natural person in connection
with a consumer credit transaction.
8. There has not been any assignment of the Guaranty.
9. Judgment has not been entered on the Guaranty in any jurisdiction.
IO. The amount due to Plaintiff as a result of Defendant's default is as follows:
a. Principal $582,497.57
b. Interest to May 9, 2005 $ 48,389.62
c. Late Charges $ 700.00
d. Search Fee $ 50.00
e. Prepayment Fees $ 12,123.01
f. Mortgage Satisfaction Fee $ 30.50
g. Attorneys' Fees $ 63 .088.72
TOTAL: $706,879.42
I!. Interest continues to accrue at the rate of$210.35 per day.
WHEREFORE, Plaintiff, PNC Bank, National Association, demands judgment against
NWI, Inc., Defendant, in the amount of $706,879.42, plus interest at the rate of $210.35 per day,
from May 10, 2005, through the date of payment, including on and after the date of entry of
2
judgment on this Complaint, and for other expenses, fees and costs to which the Plaintiff may be
entitled.
Date: May 9, 2005
ed,
ER & LINDSAY
By:
Geoffrey S. Shuff, Esquire ID #24848
Matthew J. Eshelman, Esquire ID #72655
2109 Market Street, Camp Hill, P A 17011
(717) 737-3405 (fax) 737-3407
Attorneys for Plaintiff, PNC Bank, National
Association
3
COMMERCIAL GUARANn
COlfaterat
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References in the shaded area are for lender's use only and do not limit the applicability of this document to any particular loan or item.
Borrower: EDWARD J. ABENDSCHEIN (SSN: 164-4ll-9745)
88 POlLARD ROAD
MOUNTAIN LAKES, NJ 07046
Guarantor: NWI, INC.
210 NORTH BLETTNER AVENUE
HANOVER, PA 17331
Lender: PNC BANK, NATIONAL ASSOCIATION
4242 CARLISLE PIKE
CAMP HILL, PA 17001-8a74
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. 'IV'
AMOUNT OF GUARANTY. The amounl 01 this Guaranty Is Unlimited.
CONTINUING UNLIMITED GUARANTY. For good and valuable consideration, NWI, INC. ("Guarantor") absolutely.and unconditionally
guarantees and promises to pay to PNC BANK, NATIONAL ASSOCIATION ("Lender") or Its order, In legal tender 01 the United States 01
America, the Indebtedness (as that term Is dellned below) 01 EDWARD J. ABENDSCHEIN ("Borrower") to Lender on the terms and conditions
set lorth in this Guaranty. Under this Guaranty, the liability 01 Guarantor Is unlimited and the obllgallons 01 Guarantor are continuing.
DEFINITIONS. The following words shall have the following meanings when used in this Guaranty:
Borrower. The word "Borrower" means EDWARD J. ABENOSCHEIN.
Guarantor. The word "Guarantor" means NWI, INC..
Guaranty. The word "Guaranty" means this Guaranty made by Guarantor for the benefit of Lender dated February 21, 2001.
Indebtedness. The word "Indebtedness" is used in its most comprehensive sense and means and includes any and all of Borrower's liabilities,
obligations, debts, and indebtedness to Lender, now existing or hereinafter incurred or created, including, without limitation, all loans, advances,
interest, costs, debts, overdraft indebtedness, credit card indebtedness, lease obligations, other obligations, and liabilities of Borrower, or any of
them, and any present or future judgments against Borrower, or any of them; and whether any such Indebtedness is voluntarily or involuntarily
incurred, due or not due, absolute or contingent, liquidated or unliquidated, determined or undetermined; whether Borrower may be liable
individually or jointly with others, or primarily or secondarily, or as guarantor or surety; whether recovery on the Indebtedness may be or may
become barred or unenforceable against Borrower for any reason whatsoever; and whether the Indebtedness arises from transactions which may
be voidable on account of infancy, insanity, ultra vires, or othervvise.
Lender. The word ''lender'' means PNC BANK, NATIONAL ASSOCIATION, its successors and assigns.
Related Documents. The words "Related Documents" mean and include without limitation all promissory notes, credit agreements, loan
agreements, environmental agreements, guaranties, security agreements, mortgages, deeds of trust, and all other instruments, agreements and
documents, whether now or hereafter existing, executed in connection with the Indebtedness.
MAXIMUM LIABILITY. The maximum liability 01 Guarantor under this Guaranty shall be unlimited.
NATURE OF GUARANTY. Guarantor's liability under this Guaranty shart be open and continuous for so long as this Guaranty remains in force.
Guarantor intends to guarantee at all times the performance and prompt payment when due, whether at maturity or earlier by reason of acceleration or
otherwise, of aJllndebtedness. Accordingly, no payments made upon the Indebtedness will discharge or diminish the continuing liability of Guarantor
in connection with any remaining portions of the Indebtedness or any of the Indebtedness which subsequently arises or is thereafter incurred or
contracted.
DURATION OF GUARANTY. This Guaranty will take eflect when received by lender without the necessity of any acceptance by Lender, or any no<<ce
to Guarantor or to Borrower, and will continue in full force until all Indebtedness incurred or contracted before receipt by Lender of any notice of
revocation shall have been fully and finaJly paid and satisfied and all other obligations of Guerantor under this Guaranty shall have been performed in
fuJl. {f Guarantor elects to revoke this Guaranty, Guarantor may only do so in writing. Guarantor's written notice of revocation must be mailed to
Lender, by certified mail, at the address of Lender listed ab,ove or such other place as Lender may designate in writing. Written revocation of this
Guaranty will apply only to advances or new Indebtedness created after actual receipt by Lander of Guarantor's written revocation. Far this purpose
and without limitation, the term "new Indebtedness" does not include Indebtedness which at the time of notice of revocation is contingent, unliquidated,
undetermined or not due and which later becomes absolute, liquidated, determined or due. This Guaranty will continue to bind Guarantor for all
Indebtedness incurred by Borrower or committed by Lender prior to receipt of Guarantor's written notice of revocation, including any extensions,
renewals, substitutions or modifications of the Indebtedness. All renewals, extensions, substitutions, and modifications of the Indebtedness granted
after Guarantor's revocation, are contemplated under this Guaranty and, specifically will not be considered to be new Indebtedness. This Guaranty
shall bind the estate of Guarantor as to Indebtedness created both before and after the death or incapacity of Guarantor, regardless of Lender's actual
notice Of Guarantor's death. Subject to the foregoing, Guarantor's executor or administrator or other legal representative may terminate this Guaranty in
the same manner in which Guarantor might have terminated it and with the same effect. Release of any other guarantor or termination of any other
guaranty of the Indebtedness shall not aflect the liability of Guarantor under this Guaranty. A revocation received by lender from anyone or more
Guarantors shall not affect the liability of any remaining Guarantors under this Guaranty. It Is anllclpated that fluctuallons may occur In the
aggregate amount of Indebtedness covered by this Guaranty, and It Is speclftcaUy acknowledged and agreed by Guarantor that reductions In
the amount of Indebtedness, even to zero dollars ($0.00), prior to wrftten revocallon 01 this Guaranty by Guarantor shall not conslltute a
termlnallon of this Guaranty. This Guaranty Is binding upon Guarantor and Guarantor's heirs, successors and assigns so long as any of the
guaranteed Indebtedness remains unpaid and even though the Indebtedness guaranteed may from time to time be zero dollars ($0.00).
GUARANTOR'S AUTHORIZATION TO lENDER. Guarantor authorizes lender, either before or aner any revocation hereof, without nollce or
demand and without lessening Guarantor's liability under this Guaranty, from time to time: (a) prior to revocation as set forth above. to make
one or more additional secured or unsecured loans to Borrower, to lease equipment or other goods to Borrower I or otherwise to extend
additional credit to Borrower; (b) to alter, compromise, renew, extend, accelerate, or otherwise change one or more times the time for
payment or other terms of the Indebtedness or any part of the Indebtedness, Includtng Increases and decreases of the rate at Interest on the
Indebtedness; extensions may be repeated"'nd may be lor longer than the orfglnalloan term; (c) to take and hold security lor the payment 01
this Guaranty or the Indebtedness, and exchange, enforce, waive, subordInate, tall or decide not to perlect, and release any such security,
with or without the substitution of new collateral; (d) to release, substitute, agree not to sue, or deal with anyone or more of Borrower's
sureties, endorsers, or other guarantors on any terms or In any manner Lender may choose; (e) to determine how, when and what application
of payments and credits shall be made on the Indebtedness; (I) to apply such security and direct the order or manner 01 sate thereof,
l"elUdlng without IImltallon, any nonJUdiCial sale permitted by the terms of the controlling security agreement or deed Of frust, as lender In Its
.~'~r.tlnn mllV dAtermlne: to) to. sell, transfer, assign, or grant participations In all or any part of the Indebtedness; and (h) 10 assign or
02-21-2001
Loan No
COMMERCIAL GUARANT
(Continued)
;'agel!
transter this Guaranty In whole or In part.
GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to Lender that (a) no representations or agreements
at any kind have been made to Guarantor which would limit or qualify in any way the terms of this Guaranty; (b) lhis Guaranty is executed at
Borrower's request and not at the request at Lender; (c) Guarantor has full power, right and authority to enter into this Guaranty; (d) the provisions of
this Guaranty do nct conflict with or result in a default under any agreement or other instrument binding upon Guarantor and do not result in a vQition
of any law, regulation, court decree or order applicable to Guarantor; (e) Guarantor has not and will not, without the prior written consent of lender,
seU, lease. assign, encumber, hypothecate, transfer, or otherwise dispose of aU or substantially aU of Guarantor's assets. or any interest therein; (f) upon
Lender's request, Guarantor will pro>,Jide to Lender financial and credit information in ferm acceptable to Lender, and all such financial information
which currently has been, and all future financial information which will be provided to Lender is and will be true and correct in all material respects and
fairly present the financial condition of Guarantor as of the dates the financial intormation is provided; (g) no material adverse change has occurred in
Guarantor's financial condition since the date of the most recent financial statements provided to Lender and no event has occurred which may
materially adversely affect Guarantor's financial condition; (h) no litigation, claim, in\lestigation, administrative proceeding or similar action (induding
those for unpaid taxes) against Guarantor is pending or threatened; (i) Lender has made no representation to Guarantor as to the creditworthiness of
Borrower; and U) Guarantor has established adequate means of obtaining from Borrower on a continuing basis intormati~n regarding Borrower's
financial condition. Guarantor agrees to keep adequately informed from such means of any facts, events, or circumstances which might In any way
affect Guarantor's risks under this Guaranty, and Guarantor further agrees that Lender shall have no obligation to disclose to Guarantor any information
or documents acquired by Lender in the course of its relationship with Borrower.
GUARANTOR'S WAIVERS. Except as prohibited by applicable law, Guarantor waives any right to require Lender (al to continue lending money or 10
extend other credit to Borrower; (b) to make any presentment, protest, demand, or notice of any kind, including notice of any nonpayment of the
Indebtedness or of any nonpayment related to any collateral, or notice of any action or nonaction on the part of Borrower, Lender, any surety, endorser,
or ather guarantor in connection with the Indebtedness or in connection with the creation of new or additional loans or obligations; (c) to resort for
payment or to proceed directly or at once against any person, including Borrower or any other guarantor; (d) to proceed directly against Or exhaust any
collateral held by Lender from Borrower, any other guarantor, or any other person; (e) 10 give notice ot the terms, time, and place of any pUblic or
privale sale of personal property security held by Lender from Borrower or to compiy with any other applicable provisions at the Uniform Commercial
Code: (f) 10 pursue any other remedy within Lender's power; or (g) to commit any act or omission at any kind, or at any time, with respect to any
matter whatsoever.
Guarantor also waives any and all rights or defenses arising by reason of (a) any "one action" or "anti-deficiency" Jawor any other law which may
prevent Lender from bringing any action, including a claim for deficiency, against Guarantor, before or after Lender's commencement or completion of
any foreclosure action, either judicially or by exercise of a power of sale; (b) any election of remedies by Lender which destroys or otherwise adversely
affects Guarantor's subrogation rights or Guarantor's rights to proceed against Borrower for reimbursement, including without limitation, any loss of
rights Guarantor may suffer by reason of any law limiting, qualifying, or discharging the Indebtedness; (c) any disability or other detense of Borrower, of
any other guarantor, or at any other person, or by reason of the cessation of Borrower's liability from any cause whatsoever, other than payment in full
in legai tender, of the Indebtedness; (d) any right to claim discharge of the Indebtedness on the basis of unjustified impairment of any collateral for the
Indebtedness; (e) any statute of limitations, if at any time any action or suit brought by Lender against Guarantor is commenced there is outstanding
Indebtedness of Borrower to Lender which is nof barred by any applicable statute of limitations; or (f) any defenses given to guarantors at law or in
equity other than actual payment and performance of the Indebtedness. If payment is made by Borrower, whether voluntarily or othelWise, or by any
third party, on the Indebtedness and thereafter Lender is forced to remit the amount of that payment to Borrower's trustee in bankruptcy or to any
similar person under any federal or state bankruptcy law or law for the relief of debtors, the Indebtedness shall be considered unpaid for the purpose of
enforcement of this Guaranty,
Guarantor further waives and agrees not to assert or claim at any time any deductions to the amount guaranteed under this Guaranty for any cfaim of
setoff, counterclaim, counter demand, recoupment or similar right, whether such claim, demand or right may be asserted by the Borrower, the
Guarantor, or both.
GUARANTOR'S UNDERSTANDING WtTH RESPECT TO WAIVERS. Guarantor warrants and agrees that each of the waivers set forth above is made
with Guarantor's fun knowledge of its significance and consequences and that, under the circumstances, the waivers are reasonable and not contrary to
pUblic policy or law. If any such waiver is determined to be contrary to any applicable law or public policy, such waiver shall be effective only to the
extent permitted by law or public policy.
LENDER'S RIGHT OF SETOFF. In addition to all liens upon and rights of setoff against the moneys, securities or other property of Guarantor giV9n to
Lender by law, Len.der shall have, with respec'l to Guarantor's obligations to Lender under this Guaranty and to the extent permitted by law, a
contractual security interest in and a right of setoff against, a.nd Guarantor hereby assigns, conveys, delivers. pledges, and transfers to Lender aU Of
Guarantor's right, title and interest in and to, at! deposits, moneys, securities and other property of Guarantor now or hereafter in the possession at or
on deposit with Lender, whether held in a general or special account or deposit, whether held jointly with someone else, or whether held for
safekeeping or otherwise, excluding however all IRA. Keogh, and trust accounts. Every such security interest and right of setoff may be exercised
without demand upon or notice to Guarantor. No security interest or right of setoff shall be deemed to have been waived by any act or conduct on the
part of Lender or by any neglect to exercise such right at setoff or to entorce such security interest or by any delay in so doing. Every right of setoff and
security interest shall continue in full 'arce and effect until such right at setoff or security interest is specificaJly waived or released by an instrument in
writing executed by Lender.
SUBORDINATION OF BORROWER'S DEBTS TO GUARANTOR. Guarantor agrees that the Indebtedness of Borrower to Lender, whether now
existing or hereafter created. shall be prior to any claim that Guarantor may now have or hereafter acqutre against Borrower, whether or not Borrower
becomes insolvent. Guarantor hereby expressly subordinates any claim Guarantor may have against Borrower, upon any account whatsoever, to any
claim that Lender may now or hereafter have against Borrower. In the event of insolvency and consequent liquidation of the assets af Borrower,
through bankruptcy, by an assignment for the benefit of creditors. by voluntary liqUidation, or otherwise. the assets of Borrower applicable to the
payment of the claims at both Lender and Guarantor shall be paid to Lander and shall be first applied by Lender to the Indebtedness of Borrower to
Lender. Guarantor does hereby assign to Lender all claims which it may have or acquire against Borrower or against any assignee or trustee in
bankruptcy of 80rrower; provided however, that such assignment shall be effective only for the purpose of assuring to Lender full payment in legal
tender at the Indebtedness. It Lender so requests. any notes or credit agreements now or hereafter evidencing any debts or obligations Of Borrower to
Guarantor s.hall be marked with a legend that the same are subject to this Guaranty and shall be deJivered to Lender. Guarantor agrees. and Lender
hereby is authorized, in the name ot Guarantor, from time to time to execute and file financing statements and continuation statements and to execute
such other documents and to take such other actions as Lender deems necessary or appropriate to perfect. preserve and enforce its rights under this
Guaranty.
MISCaLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Guarenty;
Amendments. This Guaranty, together with any Related Documents, constitutes the entire understanding and agreement of the parties as to the
mattet'S set forth in tl1is Guaranty. No alteration at or amendment to this Guaranty shall be effective unless given in writing and signed by the party
or parties sought to be charged or bound by the alteration or amendment.
Applicable Law. This Guaranty has been delivered to Lender and accepted by Lender in the Commonwealth of Pennsylvania. " there is a
02=1;' :-2001
Loan No
COMMERCIAL GUARANTY
(Continued)
Page 3
lawsuit. Gu.rantor .g...... upon Lender's requesl 10 .ubmK to th. Jurisdiction of the con ot CUMBERlAND County. CommonwooJlh Of
P.nnsylv.nia. Lender .nd Guar.ntor hereby waive the rlght to .ny Jury biaI In .ny action. procooding, or countorclalm brought by __LendOt or
Guarantor aoainst the other. nus Guaranty shail be governed by and construed in accordance with the laws of the Commonwealth of
Pennsylvania.
Allomeys' Feu; Exponses. Guarantor .grees to p.y upon d.mand.1I of Lend.~s costs and exp.n.... Including .ttom.ys' fees and L.nd.~s
legal expenses. incUlTEld in connection with the enforcement of this Guaranty. Lender may pay someone else 10 help enforce this Guaranty, and
Guarantor shall pay the costs .nd exp.n... 01 such .nforc.monl. Costs and exp.nses includ. Lender's attorneys' fees and legal exp.nses
whether or not _. Is a lawsuit. Including .ttomeys' fees and legal exp.nses for bankruptcy proceedings (.nd including .fforts 10 modify or
vacalo .ny .utomalie stay or Injunction), appeals. .nd any .nticlp.lod post-judgrnent collactlon services. Guarantor also sh.1I p.y all court costs
and such .ddillonal fees as may be d1roclod by the court.
NoUces. All nolic8S required 10 be given by .Kher party to tho other under this Guaranty SheU b. in writing, mey b. senl by 1.I.facsimila (unloss
olhOlWise required by law), and, _t for revacation notices by Guarantor, shall b. effectIv. when actu.lly delivered or when doposilod wilh.
nallonally r8C~ni:red o....rnight courier, or when doposllod In the UnlIod StaleS meii, mt class poslago pr.pald, .ddressed 10 th. party to whom
tho nollco Is to be gi....n at tho address shown abow or to such other addresseS as either party m.y deslgnalo 10 tho other in wrillng. All
,""",,,,lion nolic8S by Guarantor shall be In wrillng and shall be .fIoclMl onty upon de/Ivery to L.nder as provldOd above In the section titled
"DURAll0N OF GUARANTY." If there Is monl lhan one Guarantor, nollco to any Guarantor will constitulo nollco to .11 GuaranlOl$. For nollee
P'"1l0s0s. Guarantor .grMS to koep Land... In_ .t .U tim.. 01 Guarantor's CUITOnt .ddr....
IlIIerpretotlon. In all cases whore th.re is monl then one Borrower or Guarantor. then all words used in this Guaranty in the singular shall b.
deemed 10 have been used In the plural where the contBXt and construction so require; and where there is more than one Borrower named In this
Guoranty or wh.n this Guaranty Is oxoculed by more then one GUllentor. tho wordS ~orrowor" and "Guarantor" respoctillOiy shall meon .U and
.ny one or more 01 them. Th. wOlds "Guarantor," ~orrow.r," and 't.end." Includ. tho he/r.;. SUCC8S$OI$. assigns. and transfer... 01 each of
thom. Caption headlngs In this GUlIlllnty are lor convenienCe P\llllOSOS only .nd sr. not to b. used \0 interpret or daftne tho provisions ollhls
Guaranty. II a court ot compot.ntjurisdlcllon ftnds any provision of this Guaranty to be invaUd or unenforceabl. as to .ny p.rson or cirCumstonco.
such ftndlng shell not render that provision Invalid or unenforceable as to .ny other persons or circumstoncos. and all provisions ot this Guoranty
In all oth.r respects shall remarn IIIllld .nd enforceabl.. II anyone or more of Borrow.r or Guarantor are corporations or partn.r.;Iips. It Is not
necessary for Lender to Inquire Into the powers of Borrower or Guarantor or of the oMcers, directors. partners, or agents actlno or purporting to act
on lheir b.haIt, and .ny Indoblodnoss mad. or creolod In roIlance upon tho professed 8l<8fCise 01 such powers shell b. guar.ntood under lhls
Gilar.nty .
WliVer. lender shall nol be deemed 10 ha,," waived any rlghts under tills GU8Illnty unless SUCh w.l,,"r Is glll8n in writing and slgn.d by Lend.r.
No del.y or omission on tho part of Lender In exercising any rlght shag operate as a walvot of such right or any other right. A waiver by Lender 01
a provision 01 this Guoranly shaU not prejudlca or consIItulo a waiver ot Lender's right olherwlse 10 d.mand s\riel compliance with thai provision or
any other provision of this Guaranty. No prior waiver by Lender, nor any course of dealing belwoon Lender .nd Guarantor. shall conslltuta ·
waiv.r of .ny 01 Lende~s rights or of any of Guarantor's Obligations as to any fulure tr.nsoct1ons. Wh.n.....r tho consent 01 Lender Is required
undot this Guaranty, the grenllng of such consent by Lender In any Instonce shall not consli1ut. continurng consent to subsequent Insloncos
whore such consenlls required and In .11 cases such consent mey be granted or withheld In tho sol. discretion of Lend.r.
UMITED RECOURSE AS TO NON-APPLICANT SPOUSE. Nolwithslendlng anylhing contain.d her.in to tho contrary, it Is agreed lhat. uniOss an
_tion to tho requlrem.nts ot Regulation B 01 the Board ot Governors of tho F.deral Reserve Syst.m applies in connection with tho extension 01 tho
lndoblodness .nd tho 8X8CulIon oIlh1s Guaranty, the spouse who Is doomed not 10 be tho "applicant lor credit" lor purposos ot such regulation (th.
"Non-Appllcant Spousej shall be personaily liable under this Guaranty onty with respect to ....ts h.ld jointiy os of tho dal. h""",f or hore.flor
acqulred. end the lion of any judg...n!. order or other reIioI.gaill$l the No""""",,,pllcanl Spouse shall b.limU.d thorelo. Nothing herein. howall8t, shall
IlmK the L.nder's rights against .ny por.;on, ftrm or .nlily olhor then th. No""""",,,pllcant Spouse.
FINANCIAL INFORMATION PROVISION _ GUARANTOR. Guerantor shall d.liver or cause 10 b. deliver.d 10 L.nd.r nollaler th.n t20 days .ft., tho
close of each fiscat y.ar. a copy of tho federal Incom. lox return filed by Guarantor, which lox return sh.1I be a true and complete copy ollhe relurn
filed by Guar.ntor with tho Inlorn.1 R.....nue So<vic.. In addlllon, Lender may require eddillonal financial inlormelien trom tlmo 10 time as reasonably
roqUOSIod.
CONFESSION OF JUOGMENT. GUARANTOR HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATrORNEY OR THE
PROTHONOTARY OR CLERK OF I>N'( COURT IN THE COMMONWEALTH OF PENNSY\.VANIA. OR ELSEWHERE. TO APPEAR AT Am TIME FOR
GUARANTOR AFTER A DEFAULT UNDER THIS GUARANTY. AND WITH OR WITHOUT COMPLAINT FILED, AS OF I>N'( TERM, CONFESS OR
EN"TCR JUDGMENT AGAINST GUARANTOR FOR THE ENTIRE PRINCIPAL BALANCE OF THIS GUARANTY. ALL ACCRUED INTEREST. LATE
CHARGES, AND Am AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO Am COlLATERAL SECURING THE
INDEBTEDNESS TOGETHER WITH iNTEREST ON SUCH AMOUNTS. TOGETHER WITH COSTS OF SUIT, AND AN ATrORNEY'S COMMtSSION OF
TEN PERCENT (10%) OF "'E UNPAID PRINCIPAL ilALANCE AND ACCRUED INTEREST FOR COlLECTlON. BUT IN Am EVENT NOT LESS "'AN
FIVE HUNDRED OOLl.ARS ($500) ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXEClJ110NS MAY ISSUE IMMEDIATELY: AND FOR
SO DOING. THIS GUARANTY OR A COPY OF THIS GUARANTY VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT. THE AUTHORliY
GRANTED IN THIS GUARANTY TO CONFESS JUDGMENT AGAINST GUARANTOR SHALL NOT BE EXHAUSTED BY Am EXERCISE OF THAT
AUTHORIiY. BUT SHALL CONTINUE FROM TIME TO llME AND AT ALL TIMES UNTIL PAYMENT IN FUlL. OF ALL AMOUNTS DUE UNDER THIS
GUARANTY. GUARANTOR HEREBY WAIVES Am RIGHT GUARANTOR MAY HAVE TO NOTICE OR TO A HEARING IN CONNECTION WITH ANY
SUCH CONFESSION OF JUDGMENT. EXCEPT Am N011CE AND/OR HEARING REQUIRED UNDER APPUCABLE LAW WITH RESPECT TO
EXEClJ110N OF THE JUDGMENT, AND STATES THAT EITHER A REPRESENTAllVE OF LENDER SPECIACALLY CALLED "'IS CONFESSION OF
JUOGMENT PROVISION TO GUARANTOR'S ATtCNTlON OR GUARANTOR HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL.
EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ AU. THE PROVISIONS Of' THIS GUARANTY AND AGREES TO ITS
TERMS. IN ADDITION. EACH GUARANTOR UNDERSTANDS THAT THIS GUARANTY IS EFFECTIVE lFON GUARANTOR'S EXECUTION AND
DaIVERY OF THIS GUARANTY TO LENDER AND THAT THE GUARANTY WILL CONTINUE UNTIL TERMINATEO IN THE MANNER SET FORTH
IN TIE SECTION Tll\.ED "DURATION OF GUARAllTt." NO FORMAL ACCEPTANCE BY LENDER IS NECESSARY TO MAKE THIS GUARANTY
EFFECTIVE. THIS GUARANTY IS PATED FEBRUARY 21. 2001.
THIS GUARANTY HAS BEEN SIGNED AND SEALED BY THE UNDERSIGNED.
GUARANTOR:
::"'~:'M
/1 'm
._,~......
....,...."'.'lsml
02-21-2001
'Lo.n No
COMMERCIAL GUARANT
(Continued)
. I ~./?8gC .;
. 1" ,
EDWARD J. ABENDSCHElN, PRESIDENT
CORPORATE ACKNOWLEDGMENT
STATEOF AL/A/~,<~hdALjA-
f
)
)88
I
COUNTY OF II t1 ".J!.
I
On this, the ,.;?/~r day 01 ~..(Al/"1it . 20~, bel.... mo ~/.-r." ~~"...~,./ , the
und8rslgned No\ery Pul>llc. penlonally appeareel EIlW J. ABENDSCHEIN whO acl<n6 Iedgeel mselt or 0 be tno .PRESIDENT 01 NWI,
INC., 0 corporation, end thatha or she u such PRESIDENT, being outhori:ed to do so. lIllIICuted tho lo.-going Instrument for the purp.... thenlin
conwneel by signing the nome of the cO<1loretion by Nmse<< or _, as PRESIDENT.
In w_ whereof.. iI_to..t my Iioild lid otnctal_l.
NOTAl'!IAL. SEAl.
..
.....v",(",... .......,,,, .. Ju.... 19 ~oo_~
~~d/~~ /
~otary lie and for the Ie of A ./A/ !" 0/ It/." "',""
,
KATHY J. HA~ARMAN. t(OT~"'" pueua
"""NOy,;1t 60"0. VOIII( COUNTY, .."
I..ASER PRO, R~ u.s. Pat. 1{1':'M: ott.;"VIr.3.2S1. (C)Canc,nlrex 2001 All rIghts reserved. (PA_E20A E::s.zi F3.21 ASENDSN,LN C2l1.0lJt.1
,-e: .
r:::,? PROMISSORY NOTE ( .
Borrower: EDWARD J. ABENDSCHEIN (SSN: 1~745)
.. POLLARD ROAD
MOUNTAIN LAKES, NJ 0704a
Lender: PNC BANK, NATIONAl ASSOCIATION
4242 CARLISlE PIKE
CAMP HIll., PA 17001-8174
Principal Amount: $750,000.00 Interest Rate: 8.000% Date of Note: February 21, 2001
PRDMISE TO PAY. EDWARD J. ABENDSCHEIN ("Ilomlwer') prom_lo Jl8Y 10 PNC BANK, NATIONAl ASSOCIATION ("lender'), or order, 'n
r.wtllIlIlCllleY 0111I. UnI1ed SIal.. 01 Amer1Cl1, lIIe prtnclpal _nt 01 Seven __ FIfty Tbouund & 00/100 Dollars ($750,000.00), log.ther
_lnIereIllllIIe rete 011.000" per I/Inum on lIIe unplld prtnclpal lIoIlnClI 110m Febr1Mry 21, 2001, unUl paid In lull. '.
PAYMENT. _er wlD Jl8Y 1IIl.1oan In H reguW plIYIII8Ilta of $7,211.33 _ IIId one IrTeGular loaI paym.nt....mIIod II $5111I,0112.15.
aorr-'. _ payment Ie duo March 21, 2OO1,IIId 11I1 ..balquent Jl8YIIIenta... dUo on 11Io...... day 01_ montll alter that. Bonower'.
- payment duo February 21, 2001, wlll be for 11II prtnclpal IIId all occrued Interest not y.t poId. Paymenl.lnclude prtnolplll and Inleresl. The
annual Intarest ralll for this Note Is computed on . 36SI36O basis; that Is. by applying tI10 raUo of tI10 annual Inl....1 rate OWl' a year of 360 days,
multiplied by tha ou1standlng principal balance, multiplied by tI10 actual number of deys tI10 principal balance Is oulstandlng. B_ wil pay Lender
at Lendor'. address shown above or at such _ place as Lender may deslgnala In wrI1Ing. Un_ otherwise agreed or requlrad by applicable law,
payments will be applied tnt to lICCtued unpald Intarest, then to principal, and any remaining amounllo any unpaid coIIoc:tion costs and late c!largos.
PREPAYMENT PENALTY. Upon prepaymen1 of till. NoI., Lender Is en1111ed to lIllllaIlOwlng prepaymenl pensl1y: On any business day, upon
paymenl 01 11I1 accrued unpllld In_ on tills Nole, IIId upon Dve (I) bual.... day'. prior wrtlIen nolloe 10 Lender, tha Bonower may prepay
all or 1*1 0I1IIe outstanding prtnclpal 01 thts Note; provtded, hoWever, thIIlhe Ilomlw.r also agree. to pay Lender II componllllon lor tile
cost 01 lIdYanclng IIxed rete Iund., III amount equal to IIIe Cost 01 Prepaymen1.
.Coat 01 Prepayment. moen. III amounl equal to 11Io present value, II poslUve, 0I1IIe product 01 (a) tile dlllerence between (I) the yield, on the
_ oIlhla Note, 01 e U, S. Treaaury obIlg1l1on wtth a maturtty almllar to this Note minus (N) tII. ylOfd on the prepayment dele, 01 a U, s.
T-V obIlg8llon wI1II e maturtty IImll. to the _nlng maturtty 0I1hIa Nole _ (b) !he principal amounl to be prepllld, ond (e) the
number of y.... InclUding lrecUonsI y...... from the prepayment dlle to lhe maturtty _ 01 lIIla Note. TIle yield on lilY U. S. Treaaury
obIlg111on _I be delerm1ned by reference to Fed.... Reserve S1I1ISUcaI ReI_ H.15(11I) 'Selec:led In.....t Ral.... For purpose. 01
meldng prelIIn1 v....e -1atIona, tI10 yletd to maturtty ole s1mUer maturtty U. S. Treaaury obIlgaUOn on tile prepayment dele ...11II be deemed
lhe dlacount rate. The Coat of Prepayment...... also apply to eny peymenta mede alter ecceteratlon 01 the mllurtty 01 tills Note. Except forlhe
foregoing, BCITOW8l' may pay all or a porllon of the amount owed oartier tIIan n Is due. Early payments will not, unlaas agreed to by Lender in writing,
raIieve Borrower of Borrower's obligation to conilnuo to make payments under the payment schedule. Ralher, they will raduce the principal balance
d\le and may rasun in Borrower making fawer payments.
LATE CHARGE. If a payment Is 15 daya or more late, Borrower will be charged 1.000" of lhe unpaid portion 01 the regularly scheduled paymenl
or $100.00, wlllchever Ie leas.
DEFAlJ.T. Borrower will be in delaulllf any of the following happens: (a) Borrower talls 10 make any payment when due. (b) Borrower breaks any
promise BOITOWOf has made 10 Lender, or Borrower tall. to comply with or to perlorm when due any other term, obligation, covenant, or condilion
conlalned In this Note or any agreemenl relatad 10 this Note, or In any other agreement or loan BOITOWOf has with Lender. (c) Borrower defaul1s under
any loan, extension of credit, security agreement, purchase or sales agreement, or any other agreement, In favor of any other crednor or porson that
may malar1aity attact any of Borrower's property or Borrower's ability to repay this Nota or parIorm Borrow..... obligations under thts Note or any of tho
Related Documents. (d) Any raprasentaUon or slltamont made or furnished to Lender by Borrower or on Borrower's behalf is false or misleading in any
material respect either now or at the time made or furnished. (I) Borrower dJes or becomes insatvent. a receiver is appointed for any part of Borrower's
property, Borrower makes an assignment for the benefit of creditors. or any proceeding is commenced either by Borrower or against Borrower under
any bankruptcy or InsoIwncy laws. (n AAy creditor tries 10 take any of Borrower's property on or In which Lender has e lien or security Interest. This
Includes a garnishmant 01 any of Borrower's accounts witll Lender. (g) AAy olthe events described rn this delaull section occurs with respect 10 any
guarantor of this Note. (hJ A mater1aJ adv8n8 change occurs In BOITOWer's financial condition. or LendlN' believes the prospect of payment or
performance of the Indebtedness is impaired.
LENDER'S RIGHTS. Upon default, Lender may, after gMng such nolices as raqulrvd by appllcablelaw, declare the enUre unpald principal balance on
this Nole and all accrued unpald Intar..tlmmedlataly due, and then Borrower will pay lhat amount. Upon default, including fa~ure to pay upon nnal
matulity, Lender, at lis option, may also, If permitted under appllcable law, increase the In_ rata on thl. Nota 5.000 percenlag. points. The inlarast
rata wil not exceed tI10 mallimum rate permitted by applicable law. Lender may hire or pey .omeone else to help colleclthis Note II Borrower does not
pay. Borrower also will pay Lenderlhat amount. Thi.lncludes, subject to any Omits under appllcabla law, LInder's attorneys' fees and Lende~slagal
_noes whether or not there Is a lawsuit, including attorneys' fees and Iagal expenses !or bankruptcy proceedings (Including efforts to modlty or
vacate any automatic stay or injunction), appeals, and any anticipated post-judgment cotIecUon S8fVices. If not prohibited by applicable law, Borrower
also wiD pay any court costs. in addition to aU other sums prov;ded by law. It Judgmenlls entered In connection with this Notl, interest will continue to
accrue on this Note after judgment at lhe existing interest rate prOVided for in this Note. Thl, Note has been delivered to Lender and eccepted by
Lender In the Commonw..th of Pennaylv.,la. I' there I. . lIIwault, Borrower agrees upon Lender', request to submit to the Jurtsdlctlon of the
courts 01 CUMBERLAND County, tile c-monwHlIl1 01 Pennaylv..ll. Lender _ Bonower hereby waive the right 10 eny JUry trill In eny
-, proceeding, or countercllllm broughl by etlMr Lender or Borrower oget.... lIlll other. TIll. Note shIIIl be governed by end con.lrued In
occordance with the law. 01 the Commonweol1h 01 P.nnsylvlllll.
, RIGHT OF SETOFF. Borrower grents to Lender a contractual security int",esl in, and hereby assigns, conveys, delivers, pledges, and transfers 10
Lendor all Borrower'. light, litis and intarast In and 10, Borrower's accounts with Lender (whether checlcing, savings, or .oma other account), inciudlng
without IIm1taUO~ :counts held jointly with someone else and all accounts Borrower may open In the future, excluding however" IRA and Keogh
IOCOUnts. and, t accounts for which the grant of . security Interest would be prohlbtted by law. Borrower authorizes Lender, to the extent
permitted by applicable law, to charge or setoff all sums owing on this Note against any and aU such accounts.
COll.ATERAL. This Note Is securad by a M~ dated February 21, 2001, to Lender on I1NIl property located In ADAMS County, Commonweallh of
Pennsytvania, alllhe terms and conditions 0/ whicH ara hereby Inc:orporaled and made a part of tlIIs Note.
FINANCIAL INFORMA.TION PROVISION. Borrower agrees to deliver any financial and other bush't8SS Informatfon concerning Borrower thai Lender
may request from time to Itme. such as annuat and interim flnanciaj statements (d of which shaD be prepared In accordance with generally accepted
~. A" :;unlino principMis) and federal Income tax returns.
Ei h. bJ llr
Loan No
r nVIVII~.-:JVn r ...."" I II;
(ContinUed)
" Page 2
. YEAR 2000 COMPLIANCE. Borrower has reviewed Ihe areas within its business and operations whrch eeuld be a'JerSely affected by, end has
developed Of Is deveioping a progrem to address on e timely b.... tI1e-risk that certain eemputer applications used by Borrower may be unable 10
recognize and perform property detlHenslilve lunctions involving dates prior 10 and alter December 31, 1999 (!he 'Year :!OCO Problem"). The Yeer
200ll Problem will nol ,esull, and Is not reasonably expecled 10 resull, In any matertal advel"se elfect on Ihe bus/ness, properties. assets, ftnancial
condition, results of operations or prospects of Borrower, or the abifity of Borrower to duty and punctually payor perform its obligations hereunder and
under the Related Documents.
ADDITIONAl FINANCIAl INFORMATION PROVISION. Borrower shaD deli_ or cause 10 be delivered 10 Lender nolleler than 120 days affer the
close of each ~endar year: (8) a copy of the fedecal income tax return tiled by Borrower. which tax return shall be a true and complete copy of the
return filed by Borrower with the Internal Revenue Service; and (b) an updated personal financial statement of Borrower. In addition, lender may
require additional ftnancial information from time to time as reasonably requested.
GENERAl PROVISIONS. Lender may delay or 'CIllO entC<Cing any 01 Its rights or remedies under this Note without iosing lham. Borrower end eny
olher pe..on who signs, guarantees or endorses this Nole, Ie Ihe extent IlIowed by Iew, waive presenlmon~ demand lor paymenl, pretest and notice of
d1.honOf. Upon any chenge in the lerms of Ihis Nole, and unless olhe<wlse expressly slated in writfng, no party who signs this Note, whIther as maker,
guarantor, eccommcdation maker Of endorser, shall be released from liability. All such par1les agr.. thaI Lender may renew Of extend (repealedly and
fer any length of time) Ihls lean, Of rei.... any party Of guarantor or cellet""": or jmpe~, fall to _ upon or pertect LInder'S $ecurity interest'in the
eelleleral; and lake any other action deemed necessery by Lender without tha consent cI or notice to anyone. AI .uch parties also agree lhat Lender
may modify thl. lean withoullha consent at Of notice 10 anyone other tI1en tile party with whom thl modlftcallon i. made. If any pcr1lon of this Nole is
tor any reason determined to ba unenforceable. it wiN not sHeet the enforceability of any other provisions Of this Note.
CONFESSION OF JUDGMENT. BOIlROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS AroN ATTORNEY OR THE PROTHONOTARY
OR CLERK OF AroN COURT IN THE COMMONWEALTH OF PENNSYlVANIA, OR eLSEWHERE, TO APPEAR AT ANY TIME FOR BORROWER AFTER
A DEFAULT UNDER THIS NOTE, AND WITH OR WITHOUT COMPLAINT FILED, AS OF IWY TERM, CONFESS OR ENTER JUDGMENT AGAINST
BOIlROWER FOR THE ENTIRE PRINCIPAl BALANCE OF THIS NOTE, All. ACCRUED INTEREST, LATE CHARGES, AND IWY ANO All. AMOUNTS
EXPENDED OR ADVANCED BY LENDER RELATING TO IWY COIJ.J\TERAL SECURING THIS NOTe TOGETHER WITH INTEREST ON SUCH
AMOUNTS, TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEY'S COMMISSION OF TEN PERCENT (10%) OF THE UNPAID PRINCIPAl
BAlANCE AND ACCRUED INTEREST FOR COll.ECTlON, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOI.i.ARS ($500) ON WHICH
JUDGMENT OR JUOGMENTS ONE OR MORE exeCUTIONS MAY ISSUE IMMEDIATELY; AND FOR SO DOING, THIS NOTE OR A COPY OF THIS
NOTE VERIFIED BY AFFIDAVIT SHAU BE SUFFICIENT WARRANT. THE AUTHORITY GRANTED IN THIS NOTe TO CONFESS JUDGMENT
AGAINST BORROWER 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. BORROWER HEREBY WAIVES ANY RIGHT BORROWER
MAY HAVE TO NOTICE OR TO A HEARtNG IN CONNECTION WITH ANY SUCH CONFESSION OF JUOGMENT, exCEPT ANY NOTICE ANDIOR
HEARING REQUIRED UNDER APotlCABLE LAW WITH RESPECT TO exeCUTION OF THE JUDGMENT, AND STATES THAT EITHER A
REPRESENTATIVE OF LENDER SPECIFiCAlLY CAlL.EO THIS CONFESSION OF JUDGMENT PROVISION TO BORROWER'S ATTENTION OR
BORROWER HAS BEEN REPRESENTED BY INDEPENDENT LEGAl COUNSEL.
PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOO AlL THE PROVISIONS OF THIS NOTE. BORROWER AGREES TO
THE TERMS OF THE NOTE AND ACKNOWLEllGES RECEIPT OF A COMPl.ETED COpy OF THE NOTE.
THIS NOTE HAS BEEN SIGNED AND SEALED BY THE UNDERSIGNED.
BORROWER:
x
FiX'dRatl, aallOan.
L.ASERPAO, A.g. U.S. Pal. I. T.M. cu., Ver. 3.28i.(C)Conc.nlrex2001 AU fights reslN'na. [PA.020 E3.29ASeNOSN,LNC211.0Vl.I
',.
PNC BANK, l'iA TIONAL A~~0CIA nON
4242 Carlisle Pike
Camp Hill, PA 1701\
E-mai!: eric.krimrnelrWoncbank.com
Eric D. Krimmel
Vice President
(717) 730-2492 Tel
(7\7) 730-2373 Fa:"
~ PNCBAN<
November 30, 2004
Mr. Edward J. Abendschein
88 Pollard Road
Mountam Lakes, NJ 07046
Mr. Edward J. Abendschein, President
NWI, lnc.
New Way Packaging Machinery, Inc.
210 Blermer Avenue
P. O. Box 467
Hanover, PA 17331
ln reo ObligorlObligatioD Nos.: 30932275-601644017 (5750,000 Loan)
Dear Mr Abendschein:
As you know, you are obligated to PNC Bank, National Association C'PNC") for :he above-referenced loan accou;::
(the "Loan"), as evidenced by a cenain Promissory Note, Mortgage, Co=ercial Guaranties, and other relate':
documentS (the "LJan DocwnentS").
As you also know. you are in default under the Loan and Loan DocumentS for ,'our failure to pay the October 21.
200<1 and November 21. 2004 loan payments, which constitutes an Event of Default under the Loan and Loa::
Documents.
As a result or the above Event of Default, all liabilities and obligations under the Loan and Loan DocumentS haY~
been accelerated and all liabilities and obligations under the Loan and Loan Docwnents are immediately due ani
payable to PNC. As of this date the amount due under the Loan and Loan Documents is as follows:
Obligor/Obligation Nos.: 30932275-60 16J.40 171$750.000 Loan)
Principal 5582,497.57
Interest to 11!3 0/04 ] 4, 734.20
Late charges 100.00
Morrgage satisfaction fee 30.50
Total 5597,362.27 plus prepa,ment fees and costs
Please be ad\ised that unless payment in full (including prepayment fees and COsts) is immediately delivered to PNC
Bank. National Association at 4242 Carlisle Pike, Camp Hill, P A 17011, in the form of a cashiers check, PNC shaJ
take all action it deems appropriate to collect the above sums due and owing, preserve, protect and enforce its righG
under rhe Loan and Loan Documents.
This lenet shall not be deemed to constitute a waiver of any outstanding defaults or Events of Default, nor shall it
obligate PNC. or be consrrued to require PNC, to waive any defaults, whemer now existing or which may oc~-=
aftet the date of this letter, nor sball it limit PNC's rights to exercise all of its rights and remedies under rhe LOa:J
DocwnentS, including any other loan documents executed in connection tberewim, all of which rights PNC
expressly reserves.
A member ofThc: PNC Financial Servicc:s Group
4.2<\-2 Carlisle ?ilte Camp Hill Pc:nnsylvania 17Qil
Li. hlb. f '(1"
..........
Mr. Edward 1. Abendschein
November 30, 2004
Page 2
Very truly yours,
PNC Bank, National Association
La t-.:-i2
Eric D. Krimmel
Vice PreSident
Certified Mail Nos.:
70020460 0000 9754 8978
7002 0460 0000 9754 8985
cc: Regular Mail
John M. Crabbs, Esquire .
Mark A. Gittelman, Esquire
.PNCBANK
Disclosure for Confession of Judgment
(Guarantor)
Undersigned:
NWI, Inc.
210 North Blettner Avenue
Hanover, P A 17331
Lender:
PNC BANK. NATIONAL ASSOCIATION
4242 CARLISLE PIKE
CAMP Hll.L, PA 17011-8874
The undersigned has executed, and/or is executing, on or about the date hereof, a Guaranty and Suretyship
Agreement. in respect of the obligations owed to Lender by EDWARD J. ABEND SCHEIN under which the undersigned is
obligated to repay monies to Lender.
A. THE UNDERSIGNED ACIG'IQ\VLEDGES AND AGREES THAT THE ABOVE DOCmIEi.'lT CONTAIi"tS PROVISIONS UNDER WHICH L
E.IIffiER ;\-LAY Ei'\'TER JUDGME.."lT BY CONFESSION AGAIl'ls1 TIlE UNDERSIGNED. BEL'lG roLLY AWARE OF ITS RIGHtS TO PRIOR NOTICE AND A
HEA.RlNG ON TIlE V ALfi)ITY OF A.."'iY .ruDGMENT OR OrnER CIAIMS THAT MAY BE ASSERTED AGAINST IT BY LENDER TIIEREUNDER BEFORE
JUDGMENT IS E!'r'TERED. THE UNDERSIGNED HEREBY FREELY, :K."I,(OWL~GLY AND INTELUGENTLY WAIVES nIESE RIGHTS AJ.'ffi E.XPRESSLY
AGREES AJ."'lD CONSE.'lTS TO LEi'illER'S E."'lTERL......C JVDGMEl'IT AGAlNSTIT BY CONFESSIONPURSUAJ,'IT TO THE !ER..'t1:S rnE'REOF.
B. THE UNDERSIG,'fED ALSO ACKL'lOWLEDGES Al.'llJ AGREES THAT THE ABOVE DOCUM.EN1' CONTAL.'lS PROVISIONS UNDER WI-UCH
L&"'ffiER :-.lAY. AFTER ENTRY Of JUDGME:'fT A..~'D ~OL'T EITHER NOTICE OR ,.\ HEA.RING, FORECLOSE UPON, AITACH. LEVY, rAKE
POSSESSlQN OF OR OmERWlSE SEIZE PROPERTY OF THf. UNDERSIG;-.IED Ii'l FULL OR PARTIAL PAYMENT OF THE JUDGMENT. BEL....G FULLY
AWARE OF ITS RJGHTS AFTER JUDGMENT IS El'ITERED (INCLUDING THE RlGHT TO MOVE TO OPEN OR STroKE THE JUDGME.N1l. THE
UNDERSIGi\'ED HERED'i FREELY, Ki'towINGL Y A.J.'\'D INTELUCENTL Y WANES ITS RIGHtS TO NOTICE Al.'ID A HEARING Ai."ID EXPRtSSL Y AGREES
A~'l) CONSE....'TS TO LENDER'S TAKL.'iG SUCH ACTIONS AS MAY BE PERJotlITTED {JNDER APPUCABLE STATE A.."'iD FEDERAL LAW WlTI{OUT
PRIOR NOTICE TO nlE UNDERSIGNED.
C. The undersigned certifies that a representative of Lender specifically called the confession of judgment
provisions in the above document to the attention of the undersigned. and/or that the undersigned was represented by legal
counsel in connection with the above document.
D. The undersigned hereby certifies: that its annual income exceeds SI0,OOO: that all references to the undersigned
above refer to all persons and entities signing below: and that the undersigned received a copy hereof at the time of signing.
~~'l )..1
200\
NWI, ING.
h2::;
President
(J.-:-
I
bendschein
Dated:
t ~h, b) ''jJ J/
PNC BANK, NA IIONAL ASSOCIA IION,
Plaintiff
vs.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
NWI, INC.,
Defendant
: NO.
: CIVIL ACTION - LAW
: CONFESSION OF JUDGMENT
VERIFICATION
I, Eric Krimmel, Vice President, for PNC Bank, National Association, being authorized to
do so on behalf of PNC Bank, National Association, hereby verity that the statements made in the
foregoing pleading are true and correct to the best of my information, knowledge and belief. I
understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section
4904, relating to unsworn falsification to authorities.
PNC BANK, NATIONAL ASSOCIATION
Date: S (, (oS
By:
r~CJ ~
Eric D. KrimmeI
Vice President
t ;d ~ ~ n ~,
c..-:;) C)
7i -- {~::)
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION, : DOCKET NO. ~ - :J.'-IIS e~: L '---r-'i/l-,-,-\
Plaintiff \.
vs.
NWI, INC.,
Defendant
: CONFESSION OF JUDGMENT
: PREVIOUSLY ASSIGNED TO: NfA
NOTICES IN CONNECTION WITH JUDGMENTS BY CONFESSION
REQUIRED BY 42 Pa. C.S.A. 9 2737.1 (Act 105 of2000)
To: NWI, Inc.
Pursuant to 42 Pa. C.S. S 2737.1. please take notice that the Plaintiff in this matter has
entered a judgment by confession against you in the amount of $706,879.42.
You are entitled to file a petition to "strike" or "open" the judgment. In order to do so,
you must promptly file a petition with the Court of Common Pleas of Cumberland County,
Pennsylvania, as required by Rule 2959 of the Pennsylvania Rules ofCiviI Procedure. You will
file a petition by leaving it with the courts or Prothonotary at the Courthouse in Carlisle,
Cumberland County, Pennsylvania.
A petition is a formal statement of your reasons for challenging the judgment. You must
include the names of the parties at the top of the first page and the case number, which is shown
above. The petition must state your reasons for challenging the judgment is a separate numbered
paragraphs. You have to sign the petition and include a sworn statement at the end of the
document verifying that the facts you state in the petition are true and accurate. You will waive
any defenses and objections not included in your petition to strike or open. You must therefore
make every effort to raise all possible issues and defenses in your petition to strike or open in
order to avoid waiving any claims.
If you elect to file a petition, it must meet the requirements of Rule 2959 of the Rules of
Civil Procedure. A full copy of RuIe 2959 is attached to this Notice. You may also have to
comply with IocaI ruIes of procedure in effect in the county where the judgment was entered.
If you do not file a petition challenging the judgment, the Plaintiff may take steps to
collect on the judgment by asking the Sheriff to seize your assets. You may have other rights
available to you other than as set forth in this notice. 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.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, P A I 70 13
(7I7) 249-3166 or 1-800-990-9108
Corporations may be unable to represent themselves in court. If the defendants include a
corporation, the corporation must appear through an attorney if it intends to challenge the
judgment.
You may receive other papers and notices regarding the judgment. Those other papers do
not negate or override this Notice. Likewise, this Notice is not intended to and does not negate
any of the notices or information obtained in other papers that may be served upon you.
We reiterate that you are required to act promptly if you wish to seek relief from the
judgment. Under certain circumstances, you have only 30 days in which to file a petition after
papers are served on you. Even if the 30 day rule does not apply, you must act promptly in order
to protect your interests. Failing to act in a timely manner will render you unable to challenge
the judgment at a later time.
Pursuant to 40 Pa. C.S.A. Section 2737.1, if you have been incorrectly identified and had
a corifession or judgment entered against you, you are entitled to costs and reasonable attorney
fees as determined by the court.
Respectfull submi e ,
Date: May 9, 2005
,
t
SAIDIS S UFF,
R & LINDSAY
By:
Geof ey S. Shuff, squire 10 #24848
Matthew J. Eshelman, Esquire ID #72655
2109 Market Street, Camp Hill, PA 17011
(717) 737-3405 (fax) 737-3407
Attorneys for Plaintiff, PNC Bank, National
Association
..
.
Pennsvlvania Rule of Civil Procedure 2959 - Strikinl! off Judl!ment
(a)(1) ReIief from a judgment by confession shall be sought by petition. Except as
provided in subparagraph (2), all grounds for reIief whether to strike off the judgment or to open
it must be asserted in a single petition. The petition may be filed in the county in which the
judgment was originally entered, in any county to which the judgment has been transferred or in
any other county in which the sheriff has received a writ of execution directed to the sheriff to
enforce the judgment.
(2) The ground that the waiver of the due process rights of notice and hearing was not
voluntary, intelligent and knowing shall be raised only
(i) in support of a further request for a stay of execution where the court has not
stayed execution despite the timely filing of a petition for relief from the judgment and
the presentation of prima facie evidence of a defense; and
(ii) as provided by Pennsylvania Rule of Civil Procedure 2958.3 or Rule 2973.3.
(3) If written notice is served upon the petitioner pursuant to Rule 2956.1(c)(2) or RuIe
2973.I(c), the petition shall be filed within thirty days after such service. Unless the defendant
can demonstrate that there were compelling reasons for the delay, a petition not timely filed shall
be denied.
(b) If the petition states prima facie grounds for reIief the court shall issue a rule to show
cause and may grant a stay of proceedings. After being served with a copy of the petition the
plaintiff shall file an answer on or before the return day of the rule. The return day of the rule
shall be fixed by the court by local rule or special order.
(c) A party waives all defenses and objections which are not included in the petition
or answer.
(d) The petition and the rule to show cause and the answer shall be served as
provided in Rule 440.
(e) The court shall dispose of the rule on petition and answer, and on any testimony,
depositions, admissions and other evidence. The court for cause shown may stay proceedings on
the petition insofar as it seeks to open the judgment pending disposition of the appIication to
strike off the judgment. If evidence is produced which in a jury triaI wouId require the issues to
be submitted to the jury the court shall open the judgment.
(f) The lien of the judgment or of any levy or attachment shall be preserved while the
proceedings to strike off or open the judgment are pending.
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION, : DOCKET NO. OS - .:J.'I'S ~~c{ ~0u.-.-...,
Plaintiff r
vs.
NWI, INC.,
Defendant
: CONFESSION OF JUDGMENT
: PREVIOUSLY ASSIGNED TO: N/A
NOTICE UNDER RULE 2958.1
OF JUDGMENT AND EXECUTION THEREON
NOTICE OF DEFENDANT'S RIGHTS
TO: NWl, Inc.
A judgment in the amount of $706,879.42 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. The sheriff may take your money or other property to pay 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 mDGMENT AND PRESENT IT TO
A mDGE 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 WlTH INFORMATION ABOUT HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAYBE ABLE TO PROVIDE
YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO
ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
Date: May 9, 2005
Cumberland County Bar Association
32 South Bedford Street
Carlisle, P A 17013
(717) 249-3166 or 1-800-9 0-9108
d t~AV
Geo ey S. Shuff, squire 10 #24848
Matthew J. Eshelman, Esquire 10 #72655
2109 Market Street, Camp Hill, P A 17011
(717) 737-3405 (fax) 737-3407
Attorneys for Plaintiff, PNC Bank, National Association
By:
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
vs.
: DOCKET NO.
Of" - 2.41S e.,~c{ <-y-~
NWI, INC.,
Defendant
: CONFESSION OF JUDGMENT
: PREVIOUSLY ASSIGNED TO: NI A
To: NWI, Inc., Defendant
You are hereby notified that on fI1.:a.j f /) , 2005, judgment by confession was
entered against you in the sum of $706,879.42 in the above-captioned case.
DATE: !;/IO/QS
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.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA I7013
(717) 249-3 I 66 or 1-800-990-9108
I hereby certify that the following is the address of the defendant stated in the certificate of
residence:
NWI, Inc.
2 I 0 North Blettner Avenue
Hanover, P A 173 1
. .
A, NWI, Inc., Demandado(s)
Por este media sea avisado que en el dia de de 2005, un fallo por admision fue
registrada contra usted por la contidad de $706,879.42 del caso antes escrito.
Fecha: el dia de de 2005
Protonotario
LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENE
ABOGADO 0 SI NO TIENE EL DINERO SUFlCIENTE DE PAGAR TAL SERVICIO, VAYA
EN PERSONA A LLAME POR TELEFONO A LA OFlCINA CUY A DIRECCION SE
ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR
ASISTENCIA LEGAL.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, P A I 70 13
(7 I 7) 249-3 I 66 or 1-800-990-9108
Por este medio certifico que 10 siguiente es la direccion del demandado dicho en el
certificado de residencia:
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
vs.
: DOCKET NO.
OS-;)YJr C.,'uLL ~~
NWI, INC.,
Defendant
: CONFESSION OF JUDGMENT
: PREVIOUSLY ASSIGNED TO: N/A
PRAECIPE FOR ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Please enter the appearance on behalf of Plaintiff, PNC Bank, National Association.
Papers may be served at the address set forth below.
Geoffrey S. Shuff, Esquire, ID #24848
Matthew 1. Eshelman, Esquire 10 #72655
SAIDIS, SHUFF, FLOWER & LINDSAY
2109 Market Street, Camp Hill, P A 17011
(717) 737-3405 (fax) 737-3407
Date: May 9, 2005
ER & LINDSAY
By:
Geoffrey S. S uff, Esquire ID #24848
Matthew J. Eshelman, Esquire ID #72655
2109 Market Street, Camp Hill, P A 17011
(717) 737-3405 (fax) 737-3407
Attorneys for Plaintiff, PNC Bank, National
Association
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
vs.
: DOCKET NO.
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NWI, INC.,
Defendant
: CONFESSION OF JUDGMENT
: PREVIOUSLY ASSIGNED TO: N/A
AFFIDAVIT OF NON-MILITARY SERVICE
TO THE PROTHONOTARY:
I do certifY, to the best of my knowledge, that the Defendant, NWI, Inc., in the above-
captioned action is not presently on active or nonactive military status.
Respectfully submitted,
Date: May 9, 2005
By:
Geoffrey S. Shu , Esquire ID #24848
Matthew J. Eshelman, Esquire ID #72655
2109 Market Street, Camp Hill, PA 17011
(717) 737-3405 (fax) 737-3407
Attorneys for Plaintiff, PNC Bank, National
Association
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION, : DOCKET NO. {),{' - ;)..1./ f [;
Plaintiff
vs.
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NWI, INC.,
Defendant
: CONFESSION OF JUDGMENT
: PREVIOUSLY ASSIGNED TO: NI A
CERTIFICATE OF ADDRESSES
I hereby certity that the precise address of Plaintiff, PNC Bank, National Association, is
4242 Carlisle Pike, Camp Hill, Pennsylvania 17011; and that the Iast known address of the
Defendant, NWI, Inc., is 2IO North Blettner Avenue, Hanover, Pennsylvania 17331.
Date: May 9, 2005
& LINDSAY
By:
Geoffrey S. Shuff, squire lD #24848
Matthew 1. Eshelman, Esquire ID #72655
2109 Market Street, Camp Hill, P A 17011
(717) 737-3405 (fax) 737-3407
Attorneys for Plaintiff, PNC Bank, National
Association
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
* DOCKET NO. 05-2415 CIVIL TERM
.
vs.
*
.
NWI,INC.,
Defendant
. CONFESSION OF JUDGMENT
. PREVIOUSLY ASSIGNED TO: N/A
PETITION TO OPEN OR STRIKE OFF JUDGMENT ENTERED BY CONFESSION
AND TO STAY EXECUTION UPON THAT JUDGMENT
Defendant, NWI, Inc., by its attorney, John M. Crabbs, says:
1. On or about May 10, 2005, judgment by confession was entered against the
Defendant in the within case in the amount of $706,879.42.
2. Notice thereof was served on the Defendant by the Sheriff of Adams County.
3. As will fully appear by reference to the Complaint the judgment was entered
upon the guarantee by Defendant of an obligation of Edward J. Abendschein.
4. Pursuant to the "Commercial Guarantee," (Exhibit "A" to the Complaint)
confession of judgment is authorized only "after a default under this guarantee..."
5. On information and belief, there has been no default under the Note (Exhibit
"B" of the Complaint) and likewise no default under the guarantee.
. 6. Specifically, the debtor under the principal obligation (Edward J. Abendschein
- See the Promissory Note dated February 21, 2001 - the "Note" - Exhibit "B") has paid
more than nine payments in advance and is, as of this date current or somewhat paid in
advance; furthermore, the principal has asserted obligations owing by the bank,
Plaintiff herein, which constitute a set off to the claim of the bank under the note.
7. Each of those claims is currently the subject of litigation pending in the Court
of Common Pleas of Adams County, Pennsylvania, in one or both of: PNC Bank,
National Association, Plaintiff v. Edward J. Abendschein, Defendant 05-S-73; and
Edward J. Abendschein, Trustee v. PNC Financial Services Group, Inc., and PNC
Bank, N.A. 04-S-1318.
8. On information and belief, the entry of the judgment by confession in the
within case is an improper attempt by the Plaintiff to obtain a tactical advantage and
circumvent the adjudicative process presently pending in the Court of Common Pleas of
Adams County, Pennsylvania.
9. In the Adams County Court, PNC Bank has filed a foreclosure action against
real estate owned by Edward J. Abendschein and with respect to which a first mortgage
lien has been given to secure payment of the debt guaranteed by the Defendant in this
action.
10. On information and belief, the value of the security is far in excess of the
amount of the obligation and the bank is amply secured in the event that its claims
against the principal obligor ultimately are determined to be valid.
11. On information and belief, the notice of default (Exhibit C) of Plaintiff's
Complaint is defective and therefore illegally insufficient inasmuch as it fails to
reference invocation of the anti-disintermediation clause of the note (that is, the last two
sentences of the "Cost of Prepayment" paragraph: "Early payments will not, unless
agreed to by lender in writing, relieve Borro.wer of Borrower's obligation to continue to
make payments under the payment schedule. Rather they will reduce the principal
balance due and may result in Borrower making fewer payments".)
12. In any case, it is averred that any amount due to Plaintiff is less than that
claimed, and for which judgment has been entered.
WHEREFORE, it is respectfully prayed that this Court:
A. Stay all execution of the within judgment pending determination of the merits
of this Petition and ultimately permanently stay such execution;
B. Issue a rule on Plaintiff pursuant to local rule 206.4 (c) and Pa.R.C.P 2959, to
show cause why the judgment should not be stricken off or opened.
. Crabbs - 36809
roadway
over, PA 17331
717-637-9799
Attorney for Defendant NWI, Inc.
VERIFICATION
I hereby verify that the statements in this Complaint are true and correct to the
best of my knowledge, information and belief. I understand that false statements are
made subject to the penalties of 18P.A.C.S.A Section 4904 relating to unsworn
falsification to authorities. Edward J. Abendschein, President of the Defendant
Corporation is not physically available at this time and this verification is made by its
counsel upon information provided to counsel by the Defendant.
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
* DOCKET NO. 05-2415 CIVIL TERM
*
vs.
*
*
NWI, INC.,
Defendant
* CONFESSION OF JUDGMENT
* PREVIOUSLY ASSIGNED TO: N/A
PETITION TO OPEN OR STRIKE OFF JUDGMENT ENTERED BY CONFESSION
AND TO STAY EXECUTION UPON THAT JUDGMENT
Defendant, NWI, Inc., by its attorney, John M. Crabbs, says:
1. On or about May 10, 2005, judgment by confession was entered against the
Defendant in the within case in the amount of $706,879.42.
2. Notice thereof was served on the Defendant by the Sheriff of Adams County.
3. As will fully appear by reference to the Complaint the judgment was entered
upon the guarantee by Defendant of an obligation of Edward J. Abendschein.
4. Pursuant to the "Commercial Guarantee," (Exhibit "A" to the Complaint)
confession of judgment is authorized only "after a default under this guarantee..."
5. On information and belief, there has been no default under the Note (Exhibit
"B" of the Complaint) and likewise no default under the guarantee.
. 6. Specifically, the debtor under the principal obligation (Edward J. Abendschein
- See the Promissory Note dated February 21,2001 - the "Note" - Exhibit "B") has paid
more than nine payments in advance and is, as of this date current or somewhat paid in
advance; furthermore, the principal has asserted obligations owing by the bank,
Plaintiff herein, which constitute a set off to the claim of the bank under the note.
7. Each of those claims is currently the subject of litigation pending in the Court
of Common Pleas of Adams County, Pennsylvania, in one or both of: PNC Bank,
National Association, Plaintiff v. Edward J. Abendschein, Defendant 05-S-73; and
Edward J. Abendschein, Trustee v. PNC Financial Services Group, Inc., and PNC
Bank, NA 04-8-1318.
8. On information and belief, the entry of the judgment by confession in the
within case is an improper attempt by the Plaintiff to obtain a tactical advantage and
circumvent the adjudicative process presently pending in the Court of Common Pleas of
Adams County, Pennsylvania.
9. In the Adams County Court, PNC Sank has filed a foreclosure action against
rea(estate owned by Edward J. Abendschein and with respect to which a first mortgage
lien has been given to secure payment of the debt guaranteed by the Defendant in this
action.
10. On information and belief, the value of the security is far in excess of the
amount of the obligation and the bank is amply secured in the event that its claims
against the principal obligor ultimately are determined to be valid.
11. On information and belief, the notice of default (Exhibit C) of Plaintiff's
Complaint is defective and therefore illegally insufficient inasmuch as it fails to
reference invocation of the anti-disintermediation clause of the note (that is, the last two
sentences of the "Cost of Prepayment" paragraph: "Early payments will not, unless
agreed to by lender in writing, relieve Borro,wer of Borrower's obligation to continue to
make payments under the payment schedule. Rather they will reduce the principal
balance due and may result in Borrower making fewer payments".)
12. In any case, it is averred that any amount due to Plaintiff is less than that
claimed, and for which judgment has been entered.
WHEREFORE, it is respectfully prayed that this Court:
A. Stay all execution of the within judgment pending determination of the merits
of this Petition and ultimately permanently stay such execution;
B. Issue a rule on Plaintiff pursuant to local rule 206.4 (c) and Pa.R.C.P 2959, to
show cause why the judgment should not tie stricken off or opened.
c: . C"bb' - 36809
2C}i, roadway
r'@tiover, PA 17331
717-637-9799
Attorney for Defendant NWI, Inc.
. -
VERI FICA TION
I hereby verify that the statements in this Complaint are true and correct to the
best of my knowledge, information and belief. I understand that false statements are
made subject to the penalties of 18P.A.C.S.A Section 4904 relating to unsworn
falsification to authorities. Edward J. Abendschein, President of the Defendant
Corporation is not physically available at this time and this verification is made by its
counsel upon information provided to counsel by the Defendant.
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
. DOCKET NO. 05-2415 CIVIL TERM
.
vs.
.
.
NWI, INC.,
. Defendant
. CONFESSION OF JUDGMENT
. PREVIOUSLY ASSIGNED TO: N/A
~ O~DER
. AND NOW, this ~ day of ~, 2005, upon consideration of the
foregoing petition, it is hereby ordered that
(1) a rule is issued upon the respondent to show cause why the petitioner is not
entitled to the relief requested;
(2) the respondent shall file an answer to the petition within ?b days of this
date;
(3) the petition shall be decided under Pa.R.C.P. No. 206.7;
(4) depositions shall be completed within ~O days of ~ ~.!jb.4"'?
(5) argument shall be held on ~ ,J3J~ Courtroom S- of the
Cumberland County Courthouse; and
. (6) notice of the entry of this order shall be provided to all parties by the
petitioner.
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
* DOCKET NO. 05-2415 CIVIL TERM
*
vs.
*
*
NWI,INC.,
Defendant
* CONFESSION OF JUDGMENT
* PREVIOUSLY ASSIGNED TO: N/A
ORDER STAYING EXECUTION UNDER JUDGMENT
iI'^ T~
AND NOW, this L day of 4,2005, upon the Petition of NWllnc., to
open or strike off judgment and to stay execution thereunder, it is hereby:
ORDERED that execution under the judgment entered by confession herein is
hereby stayed and Plaintiff is prohibited from taking any action to enforce the same
until further order of this Court.
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA
CIVIL
PNC BANK, NATIONAL AS SOCIA TION, : DOCKET NO. 05-2415 CIVIL TERM
Plaintiff
vs.
NWI, INC.,
Defendant
: CONFESSION OF JUDGMENT
: PREVIOUSLY ASSIGNED TO: 1. GUIDO
PLAINTIFF'S PETITION TO STRIKE AS UNTIMELY
DEFENDANT'S PETITION TO OPEN OR STRIKE OFF
JUDGMENT ENTERED BY CONFESSION
1. The name and address of the PIaintiff is PNC Bank, National Association, 4242
CarIisIe Pike, Camp HilI, PennsyIvania I 70 I I .
2. The names and address of the Defendant is NWI, Inc., 210 North Blettner Avenue,
Hanover, Pennsylvania 17331.
3. On May 10, 2005, PNC Bank entered judgment by confession against the Defendant
in the above-captioned matter pursuant to Pa. R.C.P. No. 2956. I (c)(2)(i) (hereinafter, cites to Pa.
R.C.P. are referred to by Rule number, e.g., "Rule 2956.1 ").
4. On May 3I, 2005, the Notice required by Rule 2958.1(a) was served by the Sheriff
of Adams County, in the manner prescribed by Rules 2958.1 (b)(I)(i) and 402(a)(2)(iii), by handing
a copy of the Notice at an office or usual place of business of the Defendant to the agent or person
for the time being in charge thereof, in the person of one Linda Eaton, Receptionist. A true and
correct copy of the Sheriff's Service of Process Receipt and Return of Service is attached hereto as
Exhibit "A" and made part hereof.
5. On July 1, 2005, the Defendant filed a petition for relief from the judgment by
confession pursuant to Rule 2959.
6. However, Rule 2959(a)(3) specifically provides that "[i]f written notice is served
upon the [Defendant] pursuant to Rille 2956.1(c)..., the petition shall be filed within thirty days after
such service. Unless the defendant can demonstrate that there were compelling reasons for the
delay, a petition [to open or strike off a judgment entered by confession] shall be denied." Pa.
R.C.P. No. 2959(a)(3)(emphasis added)
7. The Defendant has not offered any compelling reasons, in his petition or elsewhere,
why his petition under Rille 2959 was not timely filed within thirty days of service.
8. An Order has been issued by the Hon. Edward Guido staying execution in the
above-referenced matter, directing PNC Bank to file an answer to the Petition to Open or Strike on
or before July 26, 2005, and schedilling argument on the matt,er in Courtroom Number 5 on
September 23, 2005.
9. The stay of execution prejudices the ability of PNC Bank to exercise its Iegal
rights and remedies against property which is suffering continuing Ioss or diminution, and any
equity there may be in the property of the Defendant is continually eroding.
10. In light of the apparent absence of compelling reasons why the petition was not
timely filed, PNC Bank asks for a ruling on the issue oftimeliness prior to being required to litigate
the issues raised in Defendant's Petition to Open or Strike, by the issuance of a Rille pursuant to
c.c.R.P. No. 206.I in order to further serve the interests of justice.
11. PNC Bank cannot envision any disputed issues of material fact to be raised in any
answer to be filed by the Defendant, and hereby requests the matter be decided upon the petition to
quash and any answer thereto pursuant to Rule 206. 7(b).
WHEREFORE, Plaintiff, PNC Bank, National Association, requests a Rule be issued to
show cause why his Petition to Open or Strike Off Judgment Entered by Confession shouId not be
stricken as untimeIy filed, and grant an extension of time within which to file an answer to the
Defendant's Petition until a date which is seven days after the Rule on Plaintiff's Petition is made
returnable.
Respectfully s b '119'
, I~OWER & LINDSAY
i
Date: July 15,2005
By:
Geoffrey S. Shuff, Esquire 10 #24848
Matthew J. Eshelman, Esquire 10 #72655
2109 Market Stn~et, Camp Hill, P A 17011
(717) 737-3405 (fax) 737-3407
Attorneys for PIaintiff, PNC Bank, National
Association
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION, : DOCKET NO. 05-24 I5 CIVIL TERM
PIaintiff
vs.
NWI, INC.,
Defendant
: CONFESSION OF JUDGMENT
: PREVIOUSLY ASSIGNED TO: J. GU100
PLAINTIFF'S ANSWER TO RULE
IN RESPONSE TO DEFENDANT'S
PETITION TO OPEN OR STRIKE OFF
JUDGMENT ENTERED BY CONFESSION
Respondent, PNC Bank, N.A., by and through its attorneys, Saidis,Shuff, Flower &
Lindsay, P.C., in the person of Geoffrey S. Shuff, Esquire, and assisted by Matthew J. Eshelman,
Esquire, brings the following Answer to the Rule to Show Cause issued in the above-captioned
matter on JuIy 6, 2005, and in support thereof, avers as follows:
1. Admitted. It is admitted that on or about May IO, 2005, judgment by confession
was entered against the Defendant in the within case in the amount of $706,879.42.
2. Admitted. It is admitted that notice thereof was served on the Defendant by the
Sheriff of Adams County, on May 31, 2005, after notice which had been sent by certified U.S.
mail was returned to PNC Bank marked as "Unclaimed" by the Defendant.
3. Admitted. It is admitted that judgment was entered against the Defendant upon
the Defendant's guarantee of an obligation of one Edward 1. Abendschein.
4. Denied. The Commercial Guaranty is a document which speaks for itseIf.
5. Denied. As set forth in the Complaint for Confession of Judgment, PNC Bank
asserts Defendant is in default of Defendant's obligations under the Commercial Guaranty for,
inter alia, the failure of Edward J. Abendschein to make payment as and when due under the
terms and conditions of the Note, and the failure of Defendant NWI, Inc., to make payment as
and when required under the Commercial Guaranty. By way of further Answer, reference is
again made to Paragraph 5 and Exhibit "c" of the PIaintiffs Complaint, where PNC Bank
asserted that demand had been made for payment in full of the outstanding amounts, and such
payment has not been forthcoming.
6. Denied. Early payments under the Note do not relieve the obIigation to continue
to make regularly scheduled payments, but rather reduce the principal balance due. Further,
once payment of the entire amount of the loan is accelerated, payment of anything less than the
full outstanding amount of the loan is not sufficient to satisfy the borrower's obligations
thereunder. See citation to the Note contained in Defendant's Petition at Paragraph 11. It is also
denied that either Edward J. Abendschein or the Defendant have any right to set off against PNC
Bank, or that any actual amount could constitute a setoff even if the right existed.
7. Admitted in part and Denied in part. It is admitted that Defendant has raised
claims which are currently the subject of litigation pending in the Court of Common Pleas of
Adams County, Pennsylvania, in one or both of: PNC Bank v. Abendschein, OS-S-73; and
Abendschein, Trustee, v. PNC Financial Services Group, Inc., and PNC Bank, 04-S-I318. It is
denied that any claim raised in either of those cases has any relevance to PNC Bank's confessed
judgment against the Defendant.
8. Denied. It is denied that the entry of judgment in the above-captioned matter is an
improper attempt to obtain a tacticaI advantage or circumvent the adjudicative process presently
pending in Adams County. PNC Bank is fully within its rights to pursue this action independent
of the pending actions.
9. Admitted. It is admitted that PNC Bank has flIed a foreclosure action against real
estate owned by Edward 1. Abendschein and with respect to which a first mortgage lien has been
given to secure payment of the debt guaranteed by the Defendant.
IO. Denied. It is denied that the vaIue of the security is far in excess of the amount of
the obligation or that PNC Bank is ampIy secured. By way of further answer, the existence of
collateral to secure the obligations under the Note or Commercial Guaranty, whether ampIe or
not, is irreIevant to PNC Bank's right to confess judgment against the Defendant.
11. Denied. The allegations set forth in the corresponding paragraph of the
Defendant's Petition constitute a conclusion of Iaw to which no responsive pleading is denied;
but, to the extent such allegations are deemed to be factuaI in nature, the same are denied. By
way of further answer, the terms of the Commercial Guaranty speak for themseIves.
12. Denied. It is denied that the amount due to PIaintiff is Iess than that claimed or
for which judgment has been entered. The amount demanded in PNC Bank's CompIaint for
Confession of Judgment is due and payable by the Defendant.
13. By way of further answer, in the event the Court has not already ruled upon the
Petition ofPNC Bank to Quash the Defendant's Petition to Open or Strike the Judgment Entered
by Confession, it is reasserted that the Defendant has not offered any compelling reasons, in its
petition or eIsewhere, why its petition under RuIe 2959 was not timely filed within thirty days of
service.
WHEREFORE, PIaintiff, PNC Bank, N.A., respectfully requests that this Honorable
Court deny Defendant's motion to open or strike off the confessed judgment.
RespectfulIy submitted,
, '
~l'H 'kUNDSAY
Geoffrey S. S uff, Esquire 10 #24848
Matthew J. Eshelman, Esquire 10 #72655
2109 Market Street
Camp HilI, PA 170 I I
Phone: 717-737-3405
Fax: 7I7-737-3407
Attorneys for Defendant
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION, : DOCKET NO. 05-2415 CIVIL TERM
Plaintiff
vs.
NWI, INC.,
Defendant
: CONFESSION OF JUDGMENT
: PREVIOUSLY ASSIGNED TO: 1. GUIDO
CERTIFICATE OF SERVICE
AND NOW, this~lt.day of] v 1...'1 2005, I, Matthew J. Eshelman, Esquire, of
the firm of Saidis, Shuff, Flower & Lindsay, P.C., hereby certify that I this day served a true and
correct copy of the Plaintiff s Answer to Petition to Open or Strike upon the party Iisted below via
United States Mail, postage prepaid, addressed as follows:
John M. Crabbs, Esquire
CRABBS & CRABBS
202 Broadway
Hanover, PA 17331
Respectfully submitted,
SAID~"i-4j~F, FLOWER & LINDSAY
By: ~~
Geoffrey S. uff, Esquire 10 #24848
Matthew J. Eshelman, Esquire 10 #72655
2109 Market Street
Camp Hill, P A 17011
Phone: 7I7-737-3405
Fax: 717-737-3407
Attorneys for Defendant
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION, : DOCKET NO. 05-2415 CIVIL TERM
Plaintiff
vs.
NWI, INC.,
Defendant
: CONFESSION OF JUDGMENT
: PREVIOUSLY ASSIGNED TO: J. GUIDO
CERTIFICATE OF SERVICE
AND NOW, this ~tlAday of JVL( 2005, I, Matthew J. Eshelman, Esquire, of
the firm of Saidis, Shuff, Flower & Lindsay, P.C., hereby certify that I this day served a true and
correct copy of the Plaintiff s Petition to Strike as Untimely Defendant's Petition to Open or Strike
Off Judgment Entered by Confession as addressed below via United States Mail, postage prepaid,
addressed as follows:
John M. Crabbs, Esquire
CRABBS & CRABBS
202 Broadway
Hanover,PA 17331
SAIDI ,
By:
Geoffrey S. Shuff, Esquire 10 #24848
Matthew J. Eshelmcm, Esquire ID #72655
2109 Market Street
Camp Hill, P A 170 II
Phone: 7I7-737-3405
Fax: 717-737-3407
Attorneys for Defendant
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION, * DOCKET NO. 05-2415 CIVIL TERM
Plaintiff
*
vs. *
*
NWI,INC.,
* CONFESSION OF JUDGMENT
Defendant
* PREVIOUSLY ASSIGNED TO: N/A
PETITION TO OPEN OR STRIKE OFF JUDGMENT ENTERED BY
CONFESSION AND TO STAY EXECUTION UPON THAT JUDGMENT
Defendant Edward J. Abendschein, appearing pro se, says:
1. On or about May 10, 2005, judgment by confession was entered against the
Defendant in the within case in the amount of $706,879.42.
2. Notice thereof was served on the Defendant by the Sheriff of Adams County.
3. As will fully appear by reference to the Complaint the judgment was entered on
an obligation of Edward J. Abendschein. PNC Bank previously filed an action in
Adams County on the same note and mortgage.
4. Pursuant to the note and mortgage, confession of judgment is authorized only
"after a default"
5. On information and belief, there has been no default under the Note (Exhibit
"B" of the Complaint).
6. Specifically, the debtor under the principal obligation (Edward J. Abendschein -
See the Promissory Note dated February 21, 2001 - the "Note" - Exhibit "B") has
paid more than nine payments in advance and is, as of this date current or
somewhat paid in advance; furthermore, I have asserted obligations owing by the
bank, Plaintiff herein, which constitute a set off to the claim of the bank under the
note.
7. Each of those claims is currently the subject of litigation pending in the Court
of Common Pleas of Adams County, Pennsylvania, in one or both of: PNC Bank,
National Association, Plaintiff v. Edward J. Abendschein, Defendant 05-S-73; and
Edward J. Abendschein, Trustee v. PNC Financial Services Group, Inc., and
PNC Bank, NA 04-S-1318.
8. On information and belief, the entry of the judgment by confession in the within
case is an improper attempt by the Plaintiff to obtain a tactical advantage and
circumvent the adjudicative process presently pending in the Court of Common
Pleas of Adams County, Pennsylvania.
9. In the Adams County Court, PNC Bank has filed a foreclosure action against
real estate owned by Edward J. Abendschein and with fl3spect to which a first
mortgage lien has been given to secure payment of the debt guaranteed by the
Defendant in this action.
10. On information and belief, the value of the security is far in excess of the
amount of the obligation and the bank is amply secured in the event that its
claims against me ultimately are determined to be valid.
11. On information and belief, the notice of default (Exhibit C) of Plaintiff*s
Complaint is defective and therefore illegally insufficient inasmuch as it fails to
reference invocation of the anti-disintermediation clause of the note (that is, the
last two sentences of the "Cost of Prepayment" paragraph: "Early payments will
not, unless agreed to by lender in writing, relieve Borrower of Borrower's
obligation to continue to make payments under the payment schedule. Rather
they will reduce the principal balance due and may result in Borrower making
fewer payments".)
12. In any case, it is averred that any amount due to Plaintiff is less than that
claimed, and for which judgment has been entered. In particular, the counsel
fees are outrageous for a few hours' work.
WHEREFORE, it is respectfully prayed that this Court:
Stay all execution of the within judgment pending determination of the merits of
this Petition and ultimately permanently stay such execution;
EDWARD J. ABENDSCHEIN
DEFENDANT PRO SE
88 POLLARD ROAD
MOUNTAIN LAKES, NJ 07046
717-968-2398 biged48@yahoo.com
VERIFICATION
I hereby verify that the statements in this Complaint are true and correct to the
best of my knowledge, information and belief. I understand that false statements
are made subject to the penalties of 18PAC.S.A Section 4904 relating to
unsworn falsification to authorities.
Date:
Gl Vt-
-----------------1-------------------------------
Edward J. Abendschein
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION, * DOCKET NO. 05-2415 CIVIL TERM
Plaintiff
*
VS.
*
*
NWI, INC.,
* CONFESSION OF JUDGMENT
Defendant
* PREVIOUSLY ASSIGNED TO: N/A
AFFIDAVIT IN SUPPORT OF PETITION TO STAY AND OPEN OR
STRIKE JUDGMENT
Edward J. Abendschein, Petitioner Pro Se, says under the penalties ofpeIjury:
1. In the presidential debates last fall, one candidate noted that a person could be certain
but wrong. That observation applies to me in this case. I was certain that PNC Bank had
accidentally filed this case in CumberIand County and would terminate the case and refile
in Adams County after receiving the Petition of the corporate Defendants. I ask that the
Court receive this Petition which is identical to that of the corporate Defendants. PNC
Bank will not be prejudiced by the Court receiving and acting on this Petition at this late
date.
2. I am the owner of 21 0 Blettner Avenue, Conewago Township, Adams County, P A
("the Blettner Avenue property"), the owner of all of the shares ofNWI, Inc. (which in
turn owns all ofthe shares of New Way Packaging Machinery, Inc.) and the trustee of the
New Way Packaging Machinery Inc. Retirement Income Trust. I appear pro se because
of the difficulty of finding counsel that is sensitive to my various roles, particularly my
trustee role.
3. This case belongs in Adams County where there are two prior cases pending. Neither
the Defendants nor the New Way Packaging Machinery Retirement Income Trust - who
is the real party in interest in this case - has any assets in Cumberland County. This case
is about a very important subject; Maya bank that takes umbrage at the efforts of a
trustee who sincerely believes he is protecting the assets ofth~ trust corpus retaliate
against the personal assets of that trustee? Considering the vast number of custodial
accounts in the US today and proposals to add 55 million SociaI Security accounts, this
Court needs to make a strong statement that a custodian such as PNC Bank may not do
so.
4. This case is not about economics. PNC Bank's actions to date demonstrably prove that
allegation. For example, in 2003 it gave up custody of hundreds of thousands of dollars
in cash to seize if I failed to pay the mortgage by terminating the depository relationship
of the Defendants and the New Way Packaging Machinery Rc,tirement Income Trust
against our will. I could cite lots of other examples of how a :few individuals at PNC
Bank took actions against the financial interest ofPNC Bank solely to inflict financial
damage on the Defendants and the pension plan.
5. In August 2001, PNC Bank removed $100,030.00 from th() corpus ofthe New Way
Packaging Machinery Retirement Income Trust and appIied it to extinguish a loan made
by PNC Bank to New Way. This action ofPNC Bank ostensibly on behalf of the Trustee
is a plain vanilla violation of Employee Retirement Income S()curity Act of 1974, a
federal statute which defines what actions a trustee may take with the trust corpus. Mr.
Eric Kimmel, Vice-President ofPNC Bank and the individuaI who is directing this
litigation, told me in March or April 2003 that the sole reason that PNC Bank was
terminating its relationship with the Defendants in this action and the New Way
Packaging Machinery Retirement Income Fund was due to my efforts to undo that
transaction. That is a bad faith exercise of contractual rights.
6. Mr. Kimmel is on the wholesale side ofPNC Bank and the Court might ask the
ERISA trustees employed elsewhere by PNC how they would react if a custodian
removed ERISA assets of a PNC Bank trustee and applied those funds to benefit PNC
Bank. They would act just as I acted in my capacity as Truste,~ and they would be right.
But Mr. Kimmel seems uninterested in this fact.
7. All that I have asked PNC Bank to do for more than 3-1/2 years is to effectuate what
the parties have recently begun to call the 'pension flip'. I have offered in my capacity as
president of New Way to write a check to PNC Bank for the defalcation amount
($100,030.00 pIus interest since August 30, 2001) with the understanding that PNC Bank
will then write a check to the New Way Packaging Machinery Retirement Income Trust
for an identical amount.
8. My sincere opinion - based on an LLM in Taxation from New York University
Graduate School of Law in 1976 including courses from the Treasury Official who
shepherded ERISA through Congress in 1974, plus information garnered since that time
- is that if New Way makes the deposit directly, such a deposit must be counted as a new
Contribution to the New Way Packaging Machinery Retirement Income PIan and cannot
be the undoing of a Prohibited Transaction, such as PNC Banll's defalcation in 2001.
9. Mr. Kimmel's course of action in punishing me personally for trying to protect the
fund is a classic case of Lender Liability. For more than two years, Mr. Kimmel has
taken steps on behalf ofPNC Bank that are uneconomic for PNC Bank solely to punish
the Defendants and the retirement fund. All three have causes of action against PNC
BanIe New Way faces IRS excise taxes, interest and penalties of at least $750,000
because PNC Bank refuses to execute the pension flip and on August 30, 2005, a new
levy of$IOO,OOO in First Level excise taxes will fall on New Way. The pension
beneficiaries have been deprived of$100,030.00 of their rightful assets for nearly four
years, so the Trust is a victim. And I am placed in a position of self-libel, since I have to
try to explain to a new bank why PNC Bank terminated Defendants' depository
relationship but did not call the loan and seize the cash. Every believable explanation
reflects badly on me and effectively bars me from the commercial lending industry as
PNC Bank intended. No one believes that PNC Bank just refilses to execute the pension
flip.
10. Filing suit in a second county is just another example of how Mr. Kimmel has taken
other steps that cost PNC Bank unnecessary money just to make my life difficult. While
PNC Bank is not obligated to act in its own best interest under the contracts it signed with
me, it is a clear violation of its implied covenant to act in good faith if it takes steps that
injure me while deliberately injuring itself.
II. In addition to the corporate assets of the other Defendants and the Blettner Avenue
property, I own real estate with a value of nearly $2.5 million and less than $1.2 million
in mortgages. I recently offered PNC Bank 16 checks totaling $140,800 to accommodate
their interpretation of the Anti-Disintermediation Clause of the note and mortgage which
is the subject of this litigation even though I have previously paid as much as $80,000
ahead on the mortgage. See the Annexed Petition Par. II for a description of the Anti-
Disintermediation CIause. My corporations have exceeded profit projections made at the
initiation of this mortgage and my personal income is well above levels needed to service
this loan for its duration and above levels projected when the loan was made in 2001.
12. I hereby offer to pay PNC Bank the sum of$581,326, which I will pay from cash
reserves and borrowings outside the Blettner Avenue property to extinguish any monies
due under the note and mortgage that is the subject of this litigation. This is the correct
outstanding balance.
13. I have made such offers previousIy to induce PNC Bank to enter into the pension
flip, starting more than three years ago and continuing when I first met Mr. Kimmel more
than two years ago. I can offer no explanation why PNC Bank repeatedly refused this
offer.
14. The Court can appreciate that if! allowed this transaction to stand, not only would
New Way be subject these taxes, my family's future could be held hostage to allegations
of looting the pension fund for my own benefit, since I indirectly own New Way and the
defalcation paid off a $100,000 obligation of New Way to PNC Bank (plus $30 accrued
interest).
15. For these reasons and the common sense assessment of this situation, I ask the Court
to grant the relief sought in the annexed petition.
VERIFICATION
I hereby verify that the statements in this Complaint are true and correct to the
best of my knowledge, information and belief. I understand that false statements
are made subject to the penalties of 18P.A.C.S.A Section 4904 relating to
unsworn falsification to authorities.
/b
bend schein
Defendant Pro> Se
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PNC BANK, NATIONAL
ASSOCIATION,
PLAINTIFF/PETITIONER
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
NWI,INC.,
DEFENDANT/RESPONDENT
05-2415 CIVIL TERM
ORDER OF COURT
AND NOW, this 15th day of August, 2005, upon cons,ideration of the foregoing
petition, IT IS ORDERED:
(1) A Rule is issued against respondent, NWI, Inc., to show cause why the
petition to strike should not be granted.
(2) Respondent shall file an answer to the petition within seven (7) days of
service.
(3) The petition shall be decided under Pa. Rule of Civil Procedure 206.7.
(4) Any depositions shall be completed within fifteen (15) days of service.
(5) Briefs shall be filed and argument held on Friday, September 23,2005, at
8:45 a.m., in Courtroom No. II of the Cumberland County Courthouse.
(6) The matter currently scheduled before Judge Guido on September 23,
2005, is rescheduled to be heard at the same time in COUliroom Number 2, at 8:45
a.m., Friday, September 23,2005.
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(7) Notice of the entry of this order shall be ~jdE1if to all parti
Bt:Jrt,
Edgar B. Bayley, J.
Al.El}{)frlCE
OF THE PROTHONOTARY
2005 AUG 15 AMID: 57
CUM8bU,';U COUNTY
PENNSYLVANiA
Geoffrey S. Shuff, Esquire
Matthew J. Eshelman, Esquire
For Plaintiff/Petitioner
John M. Crabbs, Esquire
For DefendanVRespondent
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION, : DOCKET NO. 05-2415 CIVIL TERM
Plaintiff
vs.
NWI, INC.,
Defendant
: CONFESSION OF JUDGMENT
: PREVIOUSLY ASSIGNED TO: J. GUIDO
CERTIFICATE OF SERVICE
AND NOW, this 19r'-tday OC..Av/v~t- 2005, I, Matthew J. Eshelman, Esquire, of
the firm of Saidis, Shuff, Flower & Lindsay, P.C., hereby certify that I this day served a true and
correct copy of the Order of Court dated August 15, 2005, as addressed below via United States
Mail, postage prepaid, with certificate of mailing, a copy of which is attached hereto, addressed as
follows:
John M. Crabbs, Esquire
CRABBS & CRABBS
202 Broadway
Hanover,PA 17331
Respectfully submitted,
SA!
By:
Geoffrey S. Shuff, Esquire ID #24848
Matthew J. Eshelman, Esquire ID #72655
2109 Market Street
Camp Hill, PA 17011
Phone: 717-737-3405
Attorneys for PNC Bank, N.A.
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RECEIVED AUG 16 ZOOS?",
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION, * DOCKET NO. 05-2415 CIVIL TERM
Plaintiff
*
VS. *
*
NWI, INC., * CONFESSION OF JUDGMENT
Defendant * PREVIOUSLY ASSIGNED TO: N/A
ORDER
AND NOW, this da~"1. of ~.h005, upon consideration of the foregoing
petition, it is hereby ordered that
(1) a rule is issued upon the respondent to show cause why the petitioner is not
entitled to the relief requested;
(2) the respondent shall file an answer to the petition withinlOays of this date;
(3) the petition shall be decided under Pa.R.C.P. No. 206.7;
(4) depositions shall be completed within t~s after receipt by Defendants of
Answers to Demand for Admissions, Interrogatories and Documents by Plaintiif ;
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(5) argument shall be held on -('YYIM'"'f ""~~ , in Courtroom of the
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(6) notice of the entry of this order shail ~~e~arties by the ~
petitioner.
BY THE COURT:
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION,' DOCKET NO. 05-2415 CIVIL TERM
Plaintiff
.
VS. *
.
NWI,INC.,
. CONFESSION OF JUDGMENT
. PREVIOUSLY ASSIGNED TO: N/A
Defendant
PETITION TO OPEN OR STRIKE OFF JUDGMENT ENTERED BY
CONFESSION AND TO STAY EXECUTION UPON THAT JUDGMENT
Defendant Edward J. Abendschein, appearing pro se, says:
1. On or about May 10, 2005, judgment by confession was entered against the
Defendant in the within case in the amount of $706,879.42.
2. Notice thereof was served on the Defendant by the Sheriff of Adams County.
3. As will fully appear by reference to the Complaint the judgment was entered on
an obligation of Edward J. Abendschein. PNC Bank previously filed an action in
Adams County on the same note and mortgage.
4. Pursuant to the note and mortgage, confession of judgment is authorized only
"after a default"
5. On information and belief, there has been no default under the Note (Exhibit
"B" of the Complaint).
6. Specifically, the debtor under the principal obligation (Edward J. Abendschein -
See the Promissory Note dated February 21, 2001 - the "Note" - Exhibit "B") has
paid more than nine payments in advance and is, as of this date current or
somewhat paid in advance; furthermore, I have asserted obligations owing by the
bank, Plaintiff herein, which constitute a set off to the claim of the bank under the
note.
7. Each of those claims is currently the subject of litigation pending in the Court
of Common Pleas of Adams County, Pennsylvania, in one or both of: PNC Bank,
National Association, Plaintiff v. Edward J. Abendschein, Defendant 05-S-73; and
Edward J. Abendschein, Trustee v. PNC Financial Services Group, Inc., and
PNC Bank, N.A. 04-S-1318.
8. On information and belief, the entry of the judgment by confession in the within
case is an improper attempt by the Plaintiff to obtain a tactical advantage and
circumvent the adjudicative process presently pending in the Court of Common
Pleas of Adams County, Pennsylvania.
9. In the Adams County Court, PNC Bank has filed a foreclosure action against
real estate owned by Edward J. Abendschein and with respect to which a first
mortgage lien has been given to secure payment of the debt guaranteed by the
Defendant in this action.
10. On information and belief, the value of the security is far in excess of the
amount of the obligation and the bank is amply secured in the event that its
claims against me ultimately are determined to be valid.
11. On information and belief, the notice of default (Exhibit C) of Plaintiff*s
Complaint is defective and therefore illegally insufficient inasmuch as it fails to
reference invocation of the anti-disintermediation clause of the note (that is, the
last two sentences of the "Cost of Prepayment" paragraph: "Early payments will
not, unless agreed to by lender in writing, relieve Borrower of Borrower*s
obligation to continue to make payments under the payment schedule. Rather
they will reduce the principal balance due and may result in Borrower making
fewer payments".)
12. In any case, it is averred that any amount due to Plaintiff is less than that
claimed, and for which judgment has been entered. In particular, the counsel
fees are outrageous for a few hours' work.
WHEREFORE, it is respectfully prayed that this Court:
Stay all execution of the within judgment pending determination of the merits of
this Petition and ultimately permanently stay such execution;
EDWARD J. ABENDSCHEIN
DEFENDANT PRO SE
88 POLLARD ROAD
MOUNTAIN LAKES, NJ 07046
717-968-2398 biged48@yahoo.com
VERIFICATION
I hereby verify that the statements in this Complaint are true and correct to the
best of my knowledge, information and belief. I understand that false statements
are made subject to the penalties of 18PAC.S.A Section 4904 relating to
unsworn falsification to authorities.
Date:
trL
Edward J. Abendschein
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION,' DOCKET NO. 05-2415 CIVIL TERM
Plaintiff
.
VS.
.
.
NWI,INC.,
. CONFESSION OF JUDGMENT
Defendant
. PREVIOUSLY ASSIGNED TO: N/A
AFFIDAVIT IN SUPPORT OF PETITION TO STAY AND OPEN OR
STRIKE JUDGMENT
Edward J. Abendschein, Petitioner Pro Se, says under the penalties ofpeIjury:
1. In the presidential debates last fall, one candidate noted that a person could be certain
but wrong. That observation applies to me in this case. I was certain that PNC Bank had
accidentally filed this case in Cumberland County and would terminate the case and refile
in Adams County after receiving the Petition of the corporate Defendants. I ask that the
Court receive this Petition which is identical to that of the corporate Defendants. PNC
Bank will not be prejudiced by the Court receiving and acting on this Petition at this late
date.
2. I am the owner of 21 0 Blettner Avenue, Conewago Township, Adams County, P A
("the Blettner Avenue property"), the owner of all of the shares ofNWI, Inc. (which in
turn owns all of the shares of New Way Packaging Machinery, Inc.) and the trustee of the
New Way Packaging Machinery Inc. Retirement Income Trust. I appear pro se because
of the difficulty of finding counsel that is sensitive to my various roles, particularly my
trustee role.
3. This case belongs in Adams County where there are two prior cases pending. Neither
the Defendants nor the New Way Packaging Machinery Retirement Income Trust - who
is the real party in interest in this case - has any assets in Cumberland County. This case
is about a very important subject: Maya bank that takes umbrage at the efforts of a
trustee who sincerely believes he is protecting the assets of the trust corpus retaliate
against the personal assets of that trustee? Considering the vast number of custodial
accounts in the US today and proposals to add 55 million Social Security accounts, this
Court needs to make a strong statement that a custodian such as PNC Bank may not do
so.
4. This case is not about economics. PNC Bank's actions to date demonstrably prove that
allegation. For example, in 2003 it gave up custody of hundreds of thousands of dollars
in cash to seize if I failed to pay the mortgage by terminating the depository relationship
of the Defendants and the New Way Packaging Machinery Retirement Income Trust
against our will. I could cite lots of other examples of how a few individuals at PNC
Bank took actions against the financial interest of PNC Bank solely to inflict financial
damage on the Defendants and the pension plan.
5. In August 2001, PNC Bank removed $100,030.00 from the corpus ofthe New Way
Packaging Machinery Retirement Income Trust and applied it to extinguish a loan made
by PNC Bank to New Way. This action ofPNC Bank ostensibly on behalf of the Trustee
is a plain vanilla violation of Employee Retirement Income Security Act of 1974, a
federal statute which defines what actions a trustee may take with the trust corpus. Mr.
Eric Kimmel, Vice-President ofPNC Bank and the individual who is directing this
litigation, told me in March or April 2003 that the sole reason that PNC Bank was
terminating its relationship with the Defendants in this action and the New Way
Packaging Machinery Retirement Income Fund was due to my efforts to undo that
transaction. That is a bad faith exercise of contractual rights.
6. Mr. Kimmel is on the wholesale side ofPNC Bank and the Court might ask the
ERISA trustees employed elsewhere by PNC how they would react if a custodian
removed ERISA assets of a PNC Bank trustee and applied those funds to benefit PNC
Bank. They would act just as I acted in my capacity as Trustee and they would be right.
But Mr. Kimmel seems uninterested in this fact.
7. All that I have asked PNC Bank to do for more than 3-1/2 years is to effectuate what
the parties have recently begun to call the 'pension flip'. I have offered in my capacity as
president of New Way to write a check to PNC Bank for the defalcation amount
($100,030.00 plus interest since August 30, 2001) with the understanding that PNC Bank
will then write a check to the New Way Packaging Machinery Retirement Income Trust
for an identical amount.
8. My sincere opinion - based on an LLM in Taxation from New York University
Graduate School of Law in 1976 including courses from the Treasury Official who
shepherded ERISA through Congress in 1974, plus information garnered since that time
- is that if New Way makes the deposit directly, such a deposit must be counted as a new
Contribution to the New Way Packaging Machinery Retirement Income Plan and cannot
be the undoing of a Prohibited Transaction, such as PNC Bank's defalcation in 2001.
9. Mr. Kimmel's course of action in punishing me personally for trying to protect the
fund is a classic case of Lender Liability. For more than two years, Mr. Kimmel has
taken steps on behalf ofPNC Bank that are uneconomic for PNC Bank solely to punish
the Defendants and the retirement fund. All three have causes of action against PNC
Bank. New Way faces IRS excise taxes, interest and penalties of at least $750,000
because PNC Bank refuses to execute the pension flip and on August 30, 2005, a new
levy of$IOO,OOO in First Level excise taxes will fall on New Way. The pension
beneficiaries have been deprived of$100,030.00 of their rightful assets for nearly four
years, so the Trust is a victim. And I am placed in a position of self-libel, since I have to
try to explain to a new bank why PNC Bank terminated Defendants' depository
relationship but did not call the loan and seize the cash. Every believable explanation
reflects badly on me and effectively bars me from the commercial lending industry as
PNC Bank intended. No one believes that PNC Bank just refuses to execute the pension
flip.
10. Filing suit in a second county is just another example of how Mr. Kimmel has taken
other steps that cost PNC Bank unnecessary money just to make my life difficult. While
PNC Bank is not obligated to act in its own best interest under the contracts it signed with
me, it is a clear violation of its implied covenant to act in good faith if it takes steps that
injure me while deliberately injuring itself.
11. In addition to the corporate assets of the other Defendants and the Blettner Avenue
property, I own real estate with a value of nearly $2.5 million and less than $1.2 million
in mortgages. I recently offered PNC Bank 16 checks totaling $140,800 to accommodate
their interpretation of the Anti-Disintermediation Clause ofthe note and mortgage which
is the subject ofthis litigation even though I have previously paid as much as $80,000
ahead on the mortgage. See the Annexed Petition Par. 11 for a description of the Anti-
Disintermediation Clause. My corporations have exceeded profit projections made at the
initiation of this mortgage and my personal income is well above levels needed to service
this loan for its duration and above levels projected when the loan was made in 2001.
12. I hereby offer to pay PNC Bank the sum of$581,326, which I will pay from cash
reserves and borrowings outside the Blettner A venue property to extinguish any monies
due under the note and mortgage that is the subject of this litigation. This is the correct
outstanding balance.
13. I have made such offers previously to induce PNC Bank to enter into the pension
flip, starting more than three years ago and continuing when I first met Mr. Kimmel more
than two years ago. I can offer no explanation why PNC Bank repeatedly refused this
offer.
14. The Court can appreciate that if! allowed this transaction to stand, not only would
New Way be subject these taxes, my family's future could be held hostage to allegations
of looting the pension fund for my own benefit, since I indirectly own New Way and the
defalcation paid offa $100,000 obligation of New Way to PNC Bank (plus $30 accrued
interest).
15. For these reasons and the common sense assessment of this situation, I ask the Court
to grant the relief sought in the annexed petition.
VERIFICATION
I hereby verify that the statements in this Complaint are true and correct to the
best of my knowledge, information and belief. I understand that false statements
are made subject to the penalties of 18PAC.S.A Section 4904 relating to
unsworn falsification to authorities.
~
bend schein
Defendant Pro Se
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION, * DOCKET NO. 05-2415 CIVIL TERM
Plaintiff
*
vs. *
*
NWI, INC., * CONFESSION OF JUDGMENT
Defendant * PREVIOUSLY ASSIGNED TO: N/A
ORDER STAYING EXECUTION UNDER JUDGMENT
AND NOW, thiJ'1ay oj JU}J~, upon the Petition of Edward
Abendschein, ite'~da~' :ov~;~n or strike off judgment and to stay
execution thereunder, it is hereby:
ORDERED that execution under the judgment entered by confession herein is
hereby stayed and Plaintiff is prohibited from taking any action to enforce the
same until further order of this Court, and it is hereby
. -........
BY THE COURT:
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION, : DOCKET NO. 05-2415 CIVIL TERM
Plaintiff
vs.
NWI, INC.,
Defendant
: CONFESSION OF JUDGMENT
: PREVIOUSLY ASSIGNED TO: J. BAYLEY
PLAINTIFF'S CONSOLIDATED
MOTION TO STRIKE PETITION OF AUGUST 15, 2005,
AND
ANSWER TO RULE OF AUGUST 17,2005
Plaintiff and Respondent, PNC Bank, N.A., by and through its attorneys, Saidis, Shuff,
Flower & Lindsay, P.C., in the person of Geoffrey S. Shuff, Esquire, and assisted by Matthew J.
Eshelman, Esquire, brings the following Consolidated Motion to Strike the Petition to Open or
Strike Off Judgment Entered by Confession and to Stay Execution Upon that Judgrnent Filed on
August 15, 2005, by Edward 1. Abendschein, Pro Se, and Answer to the Rule to Show Cause
issued in the above-captioned matter on August 17,2005, as foillows:
MOTION TO STRIKE PETITION OF AUGUST 15,2005
a) On May 10, 2005, PNC Bank filed a Complaint for confession of judgment against
NWI, Inc., in the above-captioned matter. A copy of the Do(:ket is attached hereto as Exhibit
"A" for ease of reference.
b) NWI, Inc., is a corporate defendant.
c) On July 1, 2005, NWI, Inc., through counsel in the person of John M. Crabbs,
Esquire, of Hanover, Pennsylvania, filed a Petition to Open or Strike Off Judgment Entered by
Confession and to Stay Execution Upon that Judgment in this acltion.
d) On July 6, 2005, a Rule was issued upon Plaintiff PNC Bank, and an Order issued
Staying Execution.
e) On or about July 26,2005, in response to the Rule, PNC filed both a Petition to Strike
Defendant's Petition as Untimely and an Answer to Defendant's Petition.
1) The matter has been assigned to the Hon. Edgar B. Bayley, J., to be heard in
argument on September 23, 2005.
g) On August 15,2005, Edward J. Abendschein, purporting to be a Defendant Pro Se,
filed a separate Petition to Open or Strike Off Judgment Entered by Confession and to Stay
Execution Upon that Judgment also in this action (the "Abendschein Petition" or the "Petition of
August 15, 2005").
h) NWI, Inc., is the defendant in this action, not Edward J. Abendschein.
i) Edward J. Abendschein is not licensed to practice law in the Commonwealth of
Pennsylvania.
j) Pennsylvania law requires that corporations be represented by counsel. See, e.g.,
Walacavage v. Excell 2000, Inc., 331 Pa. Super. 137,480 A.2d 281 (1984) (A corporation may
not appear in court and be represented by a corporate offi<:er and shareholder who is not an
attorney.).
k) Local Rules 206.4(c)(3) and 208.3(a)(8) provide that, "[i]n the event that a party who
is represented by counsel of record attempts to file a motion, petition, answer or similar item on
his or her own, the court will not docket the item but instead forward it to the counsel of record
for such action as he or she deems appropriate on behalf of his or her client."
1) By understandable oversight, the Petition of Abendschein was docketed, and likewise
assigned to Judge Bayley, and a Rule has been issued upon Plaintiff PNC Bank to be heard in
argument on September 23, 2005.
m) Attorney Crabbs has not withdrawn his appearance !in the above-captioned matter.
n) The Petition of Abendschein was never served upon PNC Bank. It was only by virtue
of the Prothonotary's mailing of a copy of the Rule that the P:taintiff even became aware of the
issuance of the August 17th Rule.
0) The Petition of Abendschein purports to incorporalte an Affidavit in Support of his
Petition, which does not appear to comport with procedural practice.
p) Concurrence of opposing counsel of record for this Motion to Strike was sought on
August 23, 2005, who indicated that he had not received a copy of the Petition of Abendschein
either, and as a result could not indicate his position on concurrence one way or another.
q) As a result of Mr. Abendschein's Petition, there are' two Petitions filed in the same
action for the same purpose. Further, it appears the allegations contained in the Petition of
Abendschein are substantially the same as the allegations enurnerated in the Petition of NWI,
Inc., and as such, the following Answer, reproducing that set fOl1h in the Answer to the Petition
ofNWI, Inc., is offered, in the event the Court does not grant the relief requested in the Motion
consolidated herewith:
ANSWER
1. Admitted. It is admitted that on or about May 10, 2005, judgment by
confession was entered against the Defendant in the within case in the amount of
$706,879.42.
2. Admitted. It is admitted that notice thereof was served on the Defendant
by the Sheriff of Adams County, on May 31, 2005, after notice which had been sent
by certified U.s. mail was returned to PNC Bank marked as "Unclaimed" by the
Defendant.
3. Admitted. It is admitted that judgment was entered against the Defendant
upon the Defendant's guarantee of an obligation of one Edward J. Abendschein.
4. Denied. The Commercial Guaranty is a document which speaks for itself.
5. Denied. As set forth in the Complaint for Confession of Judgment, PNC
Bank asserts Defendant is in default of Defendant's obligations under the
Commercial Guaranty for, inter alia, the failure of Edward J. Abendschein to make
payment as and when due under the terms and conditions of the Note, and the failure
of Defendant NWI, Inc., to make payment as and when required under the
Commercial Guaranty. By way of further Answer, reference is again made to
Paragraph 5 and Exhibit "c" of the Plaintiffs Complaint, where PNC Bank asserted
that demand had been rnade for payment in full of the outstanding amounts, and such
payment has not been forthcoming.
6. Denied. Early payments under the Note do not relieve the obligation to
continue to make regularly scheduled payments, but rather reduce the principal
balance due. Further, once payment of the entire amount of the loan is accelerated,
payment of anything less than the full outstanding amount of the loan is not sufficient
to satisfy the borrower's obligations thereunder. See citation to the Note contained in
Defendant's Petition at Paragraph 11. It is also denied that either Edward J.
Abendschein or the Defendant have any right to set off against PNC Bank, or that any
actual amount could constitute a setoff even if the right existed.
7. Admitted in part and Denied in part. It is admitted that Defendant has
raised claims which are currently the subject of litigation pending in the Court of
Common Pleas of Adams County, Pennsylvania, in one or both of: PNC Bank v.
Abendschein, 05-S-73; and Abendschein, Trustee, v. PNC Financial Services Group,
Inc., and PNC Bank, 04-S-1318. It is denied that any claim raised in either of those
cases has any relevance to PNC Bank's confessed judgment against the Defendant.
8. Denied. It is denied that the entry of judgment in the above-captioned
matter is an improper attempt to obtain a tactical advantage or circumvent the
adjudicative process presently pending in Adams County. PNC Bank is fully within
its rights to pursue this action independent of the pending actions.
9. Admitted. It is admitted that PNC Bank has fiiled a foreclosure action
against real estate owned by Edward J. Abendschein and with respect to which a first
mortgage lien has been given to secure payment of the debt guaranteed by the
Defendant.
10. Denied. It is denied that the value of the security is far in excess of the
amount of the obligation or that PNC Bank is amply secured. By way of further
answer, the existence of collateral to secure the obligations under the Note or
Commercial Guaranty, whether ample or not, is irrelevant to PNC Bank's right to
confess judgment against the Defendant.
11. Denied. The allegations set forth in the corresponding paragraph of the
Defendant's Petition constitute a conclusion of law to which no responsive pleading
is denied; but, to the extent such allegations are deerned to be factual in nature, the
same are denied. By way of further answer, the terms of the Commercial Guaranty
speak for themselves.
12. Denied. It is denied that the amount due to Plaintiff is less than that
claimed or for which judgment has been entered. The amount demanded in PNC
Bank's Complaint for Confession of Judgment is due and payable by the Defendant.
13. By way of further answer, in the event the Court has not already ruled
upon the Petition of PNC Bank to Quash the Defendant's Petition to Open or Strike
the Judgment Entered by Confession, it is reasserted that the Defendant has not offered
any compelling reasons, in its petition or elsewhere, why i.ts petition under Rule 2959
was not timely filed within thirty days of service.
WHEREFORE, Plaintiff, PNC Bank, N.A., respectfully requests that this Honorable
Court vacate its Rule of August 17, 2005; vacate its Order Staying Execution of August 17, 2005
(which would leave the Order Staying Execution of July 6th intact); and direct that the Petition to
Open or Strike Off Judgment Entered by Confession and to Stay Execution Upon that Judgment
Filed on August 15, 2005, by Edward J. Abendschein, Pro Be, be stricken from the docket, and
instead be forwarded to the counsel of record, John M. Crabbs, Esquire, at 202 Broadway,
Hanover, Pennsylvania 17331, for such action as he deems appropriate on behalf of his client.
Respectfully submitted,
By: -
Geoffrey S. Shuff, Esquire ID #24848
Matthew J. Eshelman, Esquire ID #72655
2109 Market Street
Camp Hill, PA 17011
Phone: 717-737-3405
Fax: 717-737-3407
Attorneys for Plaintiff, PNC Bank, N.A.
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C~Vl~ Case L1~Llt
2005,024; ,; PNC BANK NAIJ.ONAL ASSOCIATION (\T[1) Nwr INC
FiJ.Rd. _. _,,_, S/lm/20
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Execution Date 0/00/00
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Di[1~osed Date. o/om/oo
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CON?ESSTON OF JUDGMENT
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NWI INC nF.FF.NllAN'i.' CRARRS ,JOHN M\
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FHST ENTRY - - - - - - - - - - -1
',I J al2oo'i CONFESSION OF ,TUDGMENT AND em'PLAINT ENTERED IN 'IHE AMOUNT OF, __
SFI6fl'l9 _ 42 _ _ _ ~__
',/1 O/L()()~ NOTlCE (V[p.1LF:U TO DEFENDANT t t,
co!10/'.!OOS NOTICES IN CONNECTION WITH JULGMENTS.j3Y CONFESSION-REQUl-RED-BY-42 :tl,
PA C S A 27J1.1 (ACT 105 OF 2000)MI
'.5 /1 0 1200'i g?T~ff:,,}l~RQ~ ,~U~f~i~.~B ~ i-oF - J{ijGME~T _!~~ _ ~~~~~'~~ON THEREON N~O~~~ r i:
:.!10/200'; PRAECIPE FOR ENTRY OF APPEARANCE ON HEW\Lf' OF TH);; PLAiNTiFF BY ! I!
(~EOF'FRF,Y s f~HtJFF r::riO
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AFFEJAV,IT OF NON MILITARY S}~RVrCE
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CI,:I-l.TIF'jCI\':'E OF i\DDRRSSRS
PEJ.'ITTON TO Of'EN OR STRIKE OFF JUDGMJi;l\T ENTERED BY CONFESSION AND'
TO STAY EXECUTION UPON THAT ,TUllGMENT BY JOHN M CRABBS ESQ FOR
0F~5"r
ORDER - m'TE'-l 7/6/05 - IN RE PETITION - A RULE IS ISSUED UPON
liS;;PONDENT- RESPONDENT SHALL PILE AN ANSWER TO THE PETITION WITHI
20 D}WS OF THE DATE ' THE PETlTION SHALL BE DECIDED UNDER PA R C
NO 206.7 - DEPOSITIONS SHALL BE COMPLETED WITHIN 60 DAYS OF THIS
DATE ARGUMENT SHALL BE HELD ON 9f23/05 AT 8'30 AM IN CR 5 OF TH
CJt~BERLAN;-) COUNTY COURTHOUSE BY HE COURT EDWARD E r:i'JIDO J
~aPTF:S rv~T:,E:J
-----. - - -- -------- ----------------------~
00'1,)1';" '5.'ZAYINC; "XECUTION ",iJNDER .JUDGMEN'l' '. DATED 7/6/05, - UPON THE I
PE'':'TfJ.CN OF NWI INC TO O\?EN OR STRIKF. OFF JUDGMENT AND TO STAll '
EXliCUnON TEEREUNDEl-I LT IS HEREBY ORDE!/ED THAT EXECTION UNDERTHE~
,JUDGMENT ENTERED BY CONFESSION HEREIN IS HEREBY STAYED AND PLFF I,
PROHIBJTED l'TWM cAKING ANY ACTION TO ENFORCE THE SAME VNTIL
~n:"T~2R ORl')i':R OF THIS COURT - BY THE COURT EDWARD E GUIDO J eOPIE~
("V\.; ",.r)) ,
PLATNI'l~;";s PETl'I'IONTo-s-rRIKE AS UNJ:'I~[ELY-DEFT'SPETiTION-To-oPEJ
OR ,1'I'R11\8 OJ,'F JUDGMENT ENTE!lEl] BY CONFESSION - BY GEOFFREY S SHUFE
E~~O 'S'Oll 1->1,10'1-'
7/26/2005 P;,,":NTJc.P'SA...."iiSWER TO HULE IN RESZ'ONSE TO DEFT'S PETITION TO OPEN
OR STRIKE OFF JUDl~MENT ENTERED BY CONFBSSIOJlJ 8Y GEOFFREY S SHUF
ESQ FCJR DEFT
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I/'J.II;OOC, CERTIFICATE-O~--SERVicE FOR- PLJ'F;;;-PF:''fIIToN TO-STRIKE AS-LlIrTIMELY.,-f
DEFT'.'1 PE1TUON TO OPEN OR STVIKE OFF JULlGMENT ENTERF:8 BY I
mNFPSPTON BY GE~~~::-~:.S.SHUF" 8",O.F'O::-_~~:'~'. _.." 0...._. .______~
8/15/7.005 ,'FTTTION TO OPEN OR STRIKE OrT ,JUDGMENT ENTERED BY CONFESSION ANDI ,
TO STAY AND TO STAY EXECUTION UPON TEAT ,JUDGMENT . BY EDWARD J ~'
AEENDSCHEIN ",
---------- - -------"- ---------- ------ I
B/15/200S AFFIDAVIT IN c;UPPORT OF PETITION TO STAY AND OPEN OR STRIKE l'
JUDGMENr - BY EDWARD .-r ARENDSC'HSIN PRO SE '
- --------- --- --- --" -------" -------------
B/15/20CJ5 ORDER OF COURT DATED a/15/0::, - IN RE PETITION TO STR.IKE AS !
\}NTIME1,'( DEFT'S PETITION TO OPEN OR STRIKE OFF JUDGMENT ENTERED B ,
CONFESSION . A RUT,E TS ISSUED AGAINST RESPONDENT NWI INC TO SHOW"
CA;JSE W;IY PETITION TO STRIKE CHOULD NOT BE GRANTED . RESPONDENT ['
ShALL FILS ANSWRR TO PETITION WITHIN 7 DAYS OF SERVICE - r:
DEPOSITIONS ,JHALL BE COMPLETEr, WITH~N 15 DAYS OF SERVICE - BRIEFS t'
SHALl B.".c, F'Ll-:D AND ARGUMENT ON 9/23/0'0 AT 8;4.5 AM IN CR 711 OFITHE '.',,1,
C<JM'RSRT,fu'IID COUNTY COURTHOUSE . MATTER SCHEDULED FOR 9/23 05 IS .
;<EOiC'HEIll]I,!;m TO BE HEARING AT ':.'HE SAME TIME TN CR 2 AT a ,45 AM IN1
') / ,!, /0" BY THE ~~l!~~ _ ~DGAR 1 BAYL~:: _ ~ _ ~OPTES MAI':'~~ __ _. d _ _. _ _ -t:
8/17/7.00" cJFUER.. DATRD 8/17/0'0 IN RE PETITION - A RULE IS ISSUE;) UPON 1'1
RI:iSPONDRNT 1'0 SHOw CAUSE WHY lETITTONER IS NOT ENTITLED TO THE t :t.
REl,TEF REQUECiTED RBSPONDENT SHALL FILE A,,\1 ANSWER TO THE PETITIOj'l ,~I
;'JITlIIN J.O DAYS OF THIS DATE - DEPOSITIONS SHALf, 118 r.OMPLSTED ,I'I
vi I J j. ~N 1', Drl.'''-S II.F" ER RECEI PT r Y DEI. I S ARGUMENT SHAL... BE HELD ',I
9/nLOE' AT 9: 15 AM IN CR II m THE CUMB"RI.AND COUNTY - BY THE 'I~:
~'~T!~ ~ FnC~~ D _ BA~~~~ _ t! _ COP 1 ~~ MAl~~~ _ _ _ _ _ _ _ _ _ _ _ _ _ ~ _ _ _ ~~
n/17/2005 ORIJEI, STAYING EXECUTION UNDER JUDGMENT - DATED a/17/05 IN RE f'
PETITION OF DEFT TO OPEN OR S1RIKE OFF JUDGMEN7 k\1D STAY EXECUTIO '
TIlP.REITNIJER IT IS HEREBY ORDERED THAT EXECUTION UNDER JUDGMENT '
EN7:FRED BY CONFESSION HEREIN IS HRREFIY SrAYED AND PLFF IS I
PROI,j Hi ,'ED FROM TAKING ANY ACTION TO ENFORCE THE SAME UNTIL '
l'UJdHF:l< eRD!",' OF THIS COURT AND IT :S HEREBY BY THE COURT EDGAR '
" "^YLP,- ,; C..':'lES MAILED I J
B/19/200r; (';~l~ ilt:J.CA'l'E OF 'SF:Riii(~E 'FOR' OR':lER-OF cOURT - B~-GEOF'FREY S-SiIUPF--t I
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70F.fl79,42
Comments
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION, : DOCKET NO. 05-2415 CIVIL TERM
Plaintiff
vs.
NWI, INC.,
Defendant
: CONFESSION OF JUDGMENT
: PREVIOUSLY ASSIGNED TO: J. BAYLEY
CERTIFICATE OF SERVICE
AND NOW, this J{ day of 4qust-- 2005, I, Matthew J. Eshelman, Esquire, of
the firm of Saidis, Shuff, Flower & Lindsay, P.C., hereby certify that I this day served a true and
correct copy of the Plaintiff's Plaintiff's Consolidated Motion To Strike Petition of August 15,
2005, And Answer To Rule Of August 17, 2005, as addressed below via United States Mail,
postage prepaid, addressed as follows:
John M. Crabbs, Esquire
CRABBS & CRABBS
202 Broadway
Hanover,PA 17331
Edward J. Abendschein
88 Pollard Road
Mountain Lakes, NJ 07046
Respectfully submitted,
SAlDIS, sm: ' FL(WER& UNDSAY
BY~ { -
Geoffrey S. S uff, Esquire ID #24848
Matthew J. Eshelman, Esquire ID #72655
2109 Market Street
Camp Hill, PA 17011
Phone: 717-737-3405
Fax: 717-737-3407
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION, : DOCKET NO. 05-2415 CIVIL TERM
Plaintiff
vs.
NWI, INC.,
Defendant
: CONFESSION OF JUDGMENT
: PREVIOUSLY ASSIGNED TO: J. BAYLEY
MOTION TO MAKE RULE ABSOLUTE
1. Movant is Plaintiff, PNC Bank, N.A., in the person of Geoffrey S. Shuff, Esquire, of
the firm of Said is, Shuff, Flower & Lindsay, P.c., assisted by Matthew J. Eshelman, Esquire.
2. On August 15, 2005, the Honorable Edgar B. Bayley, J., issued a Rule against
Respondent, NWI, Inc., returnable within seven (7) days of service, to show cause why the
Plaintiff's Petition to Strike should not be granted. A copy of the Rule is attached hereto as Exhibit
"A" for reference.
3. A copy of the Rule was mailed to counsel of record for the Respondent, John M.
Crabbs, Esquire, on August 18, 2005. A copy of the certificate of service and U.S. Postal Service
Certificate of Mailing is attached hereto as Exhibit "B" and incorporated herein by reference.
4. Pa. R.C.P. 440(b) provides that "Service by mail oflegal papers other than original
process is complete upon mailing."
5. As of the date of this Motion, the Respondent, NWI, Inc., has filed no answer to the
petition.
WHEREFORE, Plaintiff, PNC Bank, N.A., requests the Court make its Rule Absolute and
direct that the Petition to Open or Strike Off Judgment Entered by Confession of NWI, Inc., filed
July 1, 2005, in the above-captioned matter be stricken as untimely filed and that the Rule and the
Order Staying Execution Under Judgment entered July 6, 2005, in connection with that Petition
both be vacated.
Respect
~ ~bI6~
SAID!
OWER & LINDSAY
By:
Geoffrey S. ShUff, Esquire ill #24848
Matthew J. Eshelman, Esquire ID #72655
2109 Market Street
Camp Hill, PA 17011
Phone: 717-737-3405
Attorneys for PNC Bank, N.A.
J.~ _
PNC BANK, NATIONAL
ASSOCIATION,
PLAINTIFF/PETITIONER
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
NWI,INC.,
DEFENDANT/RESPONDENT,
05-2415 CIVIL TERM
ORDER OF COURT
AND NOW, this 15th day of August, 2005, upon consideration of the foregoing
petition, IT IS ORDERED:
(1) A Rule is issued against respondent, NWI, Inc., to show cause why the
petition to strike should not be granted.
g!Z1
(2) Respondent shall file an answer to the petition within seven (7) days of
service.
(3) The petition shall be decided under Pa. Rule of Civil Procedure 206.7.
(4) Any depositions shall be completed within fifteen (15) days of service.
(5) Briefs shall be filed and argument held on Friday, September 23, 2005 at
\. '
8:45 a.m., in Courtroom No. II of the Cumberland County Courthouse.
(6) The matter currently scheduled before Judge Guido on September 23,
. -
-=')
2005, is rescheduled to be heard aUhe same time in Courtroom Number 2, at 8:45
---
a.~_E[idaY1SeRte~ber 23, 2005, "
(7) Notice of the entry of this order shall be providecl to all parti
Edgar B. Bayley, J.
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION, : DOCKET NO. 05-2415 CIVIL TERM
Plaintiff
vs.
NWI, INC.,
Defendant
: CONFESSION OF JUDGMENT
: PREVIOUSLY ASSIGNED TO: J. GUIDO
CERTIFICATE OF SERVICE
AND NOW, this 19r'-tday of !tv/v~t- 2005, I, Matthew J. Eshelman, Esquire, of
the firm of Saidis, Shuff, Flower & Lindsay, P.C., hereby certify that I this day served a true and
correct copy of the Order of Court dated August 15, 2005, as addressed below via United States
Mail, postage prepaid, with certificate of mailing, a copy of which is attached hereto, addressed as
follows:
John M. Crabbs, Esquire
CRABBS & CRABBS
202 Broadway
Hanover,PA 17331
Respectfully submitted,
S
By:
Geoffrey S. Shuff, Esquire ill #24848
Matthew J. Eshelman, Esquire ill #72655
2109 Market Street
Camp Hill, P A 17011
Phone: 717-737-3405
Attorneys for PNC Bank, N.A.
U,S. POSTAL SERVICE
CERTIFICATE OF MAILING
MAY BE USED FOR DOMeSTIC AND INTERNATIONAL MAIL. DOES NOT
PROVIDE FOR INSURANCE-POSTMASTER
-'edF'S'aidis, Shuff, Flower & Lindsay
21w-Markel Slll::t:l
One piece of ordinary maU addressed to:
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION, : DOCKET NO. 05-2415 CIVIL TERM
Plaintiff
vs.
NWI, INC.,
Defendant
: CONFESSION OF JUDGMENT
: PREVIOUSLY ASSIGNED TO: J. BAYLEY
CERTIFICATE OF SERVICE
AND NOW, thi~ day of ~ 2005, I, Matthew J. Eshelman, Esquire, of
the firm of Saidis, Shuff, Flower & Lindsay, P.C., hereby certify that I this day served a true and
correct copy of the Motion to Make Rule Absolute, as addressed below via United States Mail,
postage prepaid, with certificate of mailing, a copy of which is attached hereto, addressed as
follows:
John M. Crabbs, Esquire
CRABBS & CRABBS
202 Broadway
Hanover,PA 17331
OWER & LINDSAY
SAI
By:
Geoffrey S. Shuff, Esquire ID #24848
Matthew J. Eshelman, Esquire ill #72655
2109 Market Street
Camp Hill, PA 17011
Phone: 717-737-3405
Attorneys for PNC Bank, N.A.
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION, : DOCKET NO. 05.2415 CIVIL TERM
Plaintiff
vs.
NWI, INC.,
Defendant
: CONFESSION OF JUDGMENT
: PREVIOUSLY ASSIGNED TO: J. BAYLEY
PLAINTIFF'S CONSOLIDATED
MOTION TO STRlKE PETITION OF AUGUST 15,2005,
At'\(])
AJ"iSWER TO RULE OF AUGUST 17,2005
Plaintiff and Respondent, PNC Bank, N.A., by and through its attorneys, Saidis, Shuff,
Flower & Lindsay, P.C., in the person of Geoffrey S. Shuff, Esquire, and assisted by Matthew J.
Eshelman, Esquire, brings the following Consolidated Motion to Strike the Petition to Open or
Strike Off Judgment Entered by Confession and to Stay Execution Upon that Judgment Filed on
August 15, 2005, by Edward J Abendschein, Pro Se, and Answer to the Rule to Show Cause
issued in the above-captioned matter on August 17,2005, as follows:
MOTION TO STRlKE PETITION OF AUGUST 15,2005
a) On May 10,2005. PNC Bank filed a Complaint for confession of judgment against
NWI, Inc., in the above-captioned matter. A copy of the Docket is attached hereto as Exhibit
"A" for ease of reference.
b) NWI, Inc., is a corporate defendant.
c) On July 1, 2005, NWI, Inc., through counsel in the person of John M. Crabbs,
Esquire, of Hanover, Pennsylvania, filed a Petition to Open or Strike Off Judgment Entered by
Confession and to Stay Execution Upon that Judgment in this action.
d) On July 6, 2005, a Rule was issued upon Plaintiff PNC Bank, and an Order issued
Staying Execution.
e) On or about July 26, 2005, in response to the Rule, PNC filed both a Petition to Strike
Defendant's Petition as Untimely and an Answer to Defendant's Petition.
f) The matter has been assigned to the Hon. Edgar B. Bayley, J., to be heard in
argument on September 23,2005.
g) On August 15,2005, Edward J. Abendschein, purpOrtirlg to be a Defendant Pro Se,
filed a separate Petition to Open or Strike Off Judgment Entered by Confession and to Stay
Execution Upon that Judgment also in this action (the "Abendschein Petition" or the "Petition of
August 15, 2005").
h) NWI, Inc., is the defendant in this action, not Edward J. Abendschein.
i) Edward J. Abendschein is not licensed to practice law in the Commonwealth of
Pennsylvania.
j) Pennsylvania law requires that corporations be represented by counsel. See, e.g.,
Walacavage v. Excel! 2000, Inc., 331 Pa. Super. 137,480 A.2d 281 (1984) (A corporation may
not appear in court and be represented by a corporate oftker and shareholder who is not an
attorney.).
k) Local Rules 206.4(c)(3) and 208.3(a)(8) provide that, "[i]n the event that a party who
is represented by counsel of record attempts to file a motion, petition, answer or similar item on
his or her own, the court will not docket the item but instead forward it to the counsel of record
for such action as he or she deems appropriate on behalf of his or her client."
J) By understandable oversight, the Petition of Abendschein was docketed, and likewise
assigned to Judge Bayley, and a Rule has been issued upon Plaintiff PNC Bank to be heard in
argument on September 23,2005.
m) Attorney Crabbs has not withdravm his appearance in the above-captioned matter.
n) The Petition of Abendschein was never served upon PNC Bank. It was only by virtue
of the Prothonotary's mailing of a copy of the Rule that the Plaintiff even became aware of the
issuance of the August 17th Rule.
0) The Petition of Abendschein purports to incorporate an Affidavit in Support of his
Petition, which does not appear to comport with procedural practice.
p) Concurrence of opposing counsel of record for this Motion to Strike was sought on
August 23, 2005, who indicated that he had not received a copy of the Petition of Abendschein
either, and as a result could not indicate his position on concurrence one way or another.
q) As a result of Mr. Abendschein's Petition, there are two Petitions filed in the same
action for the same purpose. Further, it appears the allegations contained in the Petition of
Abendschein are substantially the same as the allegations enumerated in the Petition of NWI,
Inc., and as such, the following Answer, reproducing that set forth in the Answer to the Petition
ofNWI, Inc., is offered, in the event the Court does not grant the relief requested in the Motion
consolidated herewith:
ANSWER
1. Admitted. It is admitted that on or about May 10, 2005, judgment by
confession was entered against the Defendant in the within case in the amount of
$706,879.42.
2. Admitted. It is admitted that notice thereof was served on the Defendant
by the Sheriff of Adams County, on May 31, 2005, after notice which had been sent
by certified U.S. mail was returned to PNC Bank marked as "Unclaimed" by the
Defendant.
3. Admitted. It is admitted that judgment was ,:ntered against the Defendant
upon the Defendant's guarantee of an obligation of one Edward J. Abendschein.
4. Denied. The Commercial Guaranty is a document which speaks for itself.
5. Denied. As set forth in the Complaint for Confession of Judgment, PNC
Bank asserts Defendant is in default of Defendant's obligations under the
Commercial Guaranty for, inter alia, the failure of Edward J. Abendschein to make
payment as and when due under the terms and conditions of the Note, and the failure
of Defendant NWI, Inc., to make payment as and when required under the
Commercial Guaranty. By way of further Answer, r<:ference is again made to
Paragraph 5 and Exhibit "c" of the Plaintiffs Complaint, where PNC Bank asserted
that demand had been made for payment in full of the outstanding amounts, and such
payment has not been forthcoming.
6. Denied. Early payments under the Note do not relieve the obligation to
continue to make regularly scheduled payments, but rather reduce the principal
balance due. Further, once payment of the entire amount of the loan is accelerated,
payment of anything less than the full outstanding amount of the loan is not sufficient
to satisfy the borrower's obligations thereunder. See citation to the Note contained in
Defendant's Petition at Paragraph 11. It is also denied that either Edward J.
Abendschein or the Defendant have any right to set off against PNC Bank, or that any
actual amount could constitute a setoff even if the right existed.
7. Admitted in part and Denied in part. It is admitted that Defendant has
raised claims which are currently the subject of litigation pending in the Court of
Common Pleas of Adams County, Pennsylvania, in one or both of: PNC Bank v.
Abendschein, 05-S-73; and Abendschein, Trustee, v. PNC Financial Services Group,
Inc., and PNC Bank, 04-5-1318. It is denied that any claim raised in either of those
cases has any relevance to PNC Bank's confessed judgment against the Defendant.
8. Denied. It is denied that the entry of judgment in the above-captioned
matter is an improper attempt to obtain a tactical advanUlge or circumvent the
adjudicative process presently pending in Adams County. PNC Bank is fully within
its rights to pursue this action independent of the pending actions.
9. Admitted. It is admitted that PNC Bank has filed a foreclosure action
against real estate owned by Edward J. Abendschein and with respect to which a first
mortgage lien has been given to secure payment of the debt guaranteed by the
Defendant.
10. Denied. It is denied that the value of the security is far in excess of the
amount of the obligation or that PNC Bank: is amply secured. By way of further
answer, the existence of collateral to secure the obligations under the Note or
Commercial Guaranty, whether ample or not, is irrelevant to PNC Bank's right to
confess judgment against the Defendant.
11. Denied. The allegations set forth in the corresponding paragraph of the
Defendant's Petition constitute a conclusion of law to which no responsive pleading
is denied; but, to the extent such allegations are deemed to be factual in nature, the
same are denied. By way of further answer, the terms of the Co=ercial Guaranty
speak for themselves.
12. Denied. It is denied that the amount due to Plaintiff is less than that
claimed or for which judgment has been entered. The amount demanded in PNC
Bank's Complaint for Confession of Judgment is due and payable by the Defendant.
13. By way of further answer, in the event the Court has not already ruled
upon the Petition of PNC Bank to Quash the Defendant's Petition to Open or Strike
the Judgment Entered by Confession, it is reasserted that the Defendant has not offered
any compelling reasons, in its petition or elsewhere, why its petition under Rule 2959
was not timely filed within thirty days of service.
WHEREFORE, Plaintiff, PNC Bank, N.A., respectfully requests that this Honorable
Court vacate its Rule of August 17,2005; vacate its Order Staying Execution of August 17, 2005
(which would leave the Order Staying Execution of July 6th intact); and direct that the Petition to
Open or Strike Off Judgment Entered by Confession and to Stay Execution Upon that Judgment
Filed on August 15, 2005, by Edward J. Abendschein, Pro Se, be stricken from the docket, and
instead be forwarded to the counsel of record, John M. Crabbs, Esquire, at 202 Broadway,
Hanover, Pennsylvania 1733], for such action as he deems apprtJpriate on behalf of his client.
Respectfully submitted,
SAY
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Currberland county ?n.;honotary' s Office
Civil Case ?rlnt
Page
-2005-02415 ?NC 3A...'\iK NATIONAL ASSOCIATION (vs) NWI INC
Reference ~o. . :
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Judge Assiqned:
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Execution Date
Ju.ry Trial... .
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Gen~~al T~d@.x Attorney !nfo
PNC SANK NA7:0NAL
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CAMP ~[lLL PA 1701J
PLAI;:.JITFF
SHUFF GEOFFREY S
NWI mc
210 N BLETTNER AVE'
Hk~OV~a PA 17331
DEFENDANT
CRASS,s JOHN M
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Jt.:dgrncnt Index Amcunt Date Desc
W...JI INC
70G,87S.42
5/10/2005
CONFESSION CF J:.rcG I
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TO STAY 2XECJT:ON ::J?ON TH..l1.T J'0DGMEJ.Y: - BY JOHN M CR.l1.BBS E:SQ FOR ,'..
--:......"'T'" 1.....
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~G,\,1c~. 7,-: ~~~QS!I!9SIS SH~b:L B~ ~COM?~ETFD ~IT~IN 60 D~YS. 0"[ -THIS,.,., I ~::
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COPISS MF-..T:,E:J ' i I..~
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-----------------------------------------------------------------",
ORD'::1< STAYING :;XECUTICN UNVER JUDGMEN7 - DATED 7/6/05 - U?ON THE ; I~;j
f'ETaWN CF NWI INC TO OPE)1 OR ST><.Io.'1:: OFF JUDGMENT A..\lD TO STAY ; \ I.j
2:X.ECUTION TEERE'U'NDSR rT IS HER.EBY ORDERED TH.b..T EXECTION UNDER 'THE: ! ;":
JIJ"DGMENT EN'TERED BY CONFESS:ON HERE:IN IS HEREBY STAYED AND ?LFF IS i ;:.
PROHIBITED 2:<'01>1 'rAKING A...'1Y ACTION TO ENFORCE: THE SAME UN7IL ' ; I '>I
FC;.(1'l-;SR OR02;< O? THIS COURT . BY THE COURT EnWAH.D E GUIDO J COPIES 1<''''
--.rAT' ;;;,..... ' fla
J?L.;':;:';TI E';:' S PETITION TO STRIKE AS UNTIMELY DEFT'S l?ETITION TO OPENJ 1,.1
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P[~-tNT!FF~S-.~~SWZR-TO-RUiE-rN-RES?ONSE-TO-DEPT~S-PETITiON-TO-OPEN1!'.~':'
OR. STRIKE o t-' i:' JUDGMElIi"T ENTERED BY CONFESS:CON - BY GEOFFREY S SHlJI'I;' '~
8SQ FOR DE:FTj I ~:I
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?~;ECIPS peR 2NT~Y OF APP2AP~JCE ON BE~~L? OF THE P~AINTIFf BY
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:/10/200::
5/J.O/2CQS
S/lG/20CS
S/:O/20C:=;
7!Ci/:;!GGS
7/07!2G05
7/07/2005
/25/200"
R"'fer~(l"'" 01,)
Case Ty~e.. '. : :
Judgment. . . . . .
Judge Assigr,ed:
Disposed Deee. :
.------- c.:ase
7...:->.........J.
-2005' -0241 S
7/27/20GS
5/15/2005
8/15/2005
8/15/2005
8/1"/2(lG~~,
8/17/2005
Cumberlanci <;:oum:y Prothonotary'S Off ice
C1Vll Case Prlnt
Page
?NC BANK NATIONAL ASSOCI.2l.TION (VE) ~1"!'~I J:NC
Filed....... .
Time......... :
Ex.ec:...:.ticn Date
Jury Trial.. . .
Dis'Dosed Date.
~igner Crt 1.:
Eigher Crt 2.:
5/10/2C
3:
0/00/00
0/00/00
CONFES':;:ON' OF
706879.42
,n.TDGMENT
Commen:s -------------
--------------------------.-----.-----------------------------
CERTI?ICATE OF SER.VICE E'OR PLFF'S PSTIITON TO STRIXE AS t.:"NT!ME!..Y
DEFT'S PETITION TO OPSN OR STF::::KE ClFF JUOGMENT ENTERED BY
CON?FSRTON - BY GEOFFREY S SHUFF ESQ FOR DEFT
--.--------------------------..------------------------------------
?ETITION TO C?=:N OR STH-IKE OF1' J'tJDGMENT ENTERED BY CONFESSION AL'ffi:
TO STAY AND 70 S~AY EXECUTIO~ GPON !S~T JLwGMENT - BY EDWk~D J
.5.;;S!'iDSCHE IN
-------------------~----------------------------------------------
,;FFTDAVI'l' IN St.:??OR:' OF PETIT10N 'I'O STA't- Ai\lD OPE~ OR STR:K.E
vuOG~rENT - BY SnWA::<n ~T I".B.8:NuSC'HC:IN PRO SE
----------------.------------..---------..
OR:)ER OF COURT . DATED a /15 / O~: - IN RE PETITION :'0 STR.:KE AS
t'N'T'T MET. '! OEF;:' S PETITION 70 OE'EN OR STRI KE OFF JUDGMENT ENTERED BY
CONFESSION - A RUT,tE T~ :::SSUED AGAINST RESPONDENT l'-s'1V! !NCTO S~OW
C_~:;SI;: I'llIlY PE7J:7ION TO ST:<IKE 5',HOU!..D NOT .92 GRA.;.'I!ED - RESPONDENT
SEA.LL FILE A.;-,;'~:\=:R TO ?E':'ITICN WITEIN 7 DAYS OF SERVICE -
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION, : DOCKET NO. 05-2415 CIVIL TERM
Plaintiff
vs.
NWI, INC.,
Defendant
: CONFESSION OF JUDGMENT
: PREVIOUSLY ASSIGNED TO: J. BAYLEY
'Yr~
ot() CERTIFICATE OF SERVICE
AND NOW, this;2i- day of 40; u<f- 2005, I, Matthew J. Eshelman, Esquire, of
the film of Saidis, Shuff, Flower & Lindsay, P.C., hereby certi,fy that I this day served a true and
correct copy of the Plaintiffs Plaintiffs Consolidated Motion To Strike Petition of August 15,
200S, And Answer To Rule Of August 17, 2005, as addressed below via United States Mail,
postage prepaid, addressed as follows:
John M. Crabbs, Esquire
CRABBS & CRABBS
202 Broadway
Hanover, PA 17331
Edward J. Abendschein
88 Pollard Road
Mountain Lakes, NJ 07046
Respectfully submitted,
1
SAIDIS, S , 'FLu0'iVER~I1IND AY
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By:' '{;/x/?
Geoffrey S. S uff, Esquir~: ID #24848
Matthew J. Eshelman, Esquire ID #72655
2109 MarketStreet
Camp Hill, P A 17011
Phone: 717-737-3405
Fax: 717-737-3407
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
. DOCKET NO. 05-2415 CIVIL TERM
.
vs.
.
.
NWI, INC.,
Defendant
. CONFESSION OF JUDGMENT
. PREVIOUSLY ASSIGNED TO: J. GUIDO
DEFENDANT'S ANSWER
TO PLAINTIFF'S PETITION TO STRIKE AS UNTIMELY
DEFENDANT'S PETITION TO OPEN OR STRIKE OFF
JUDGMENT ENTERED BY CONFESSION
1. The allegations of paragraph NO.1 are admitted.
2. The allegations of paragraph NO.2 are admitted.
3. The allegations of paragraph NO.3 are admitted.
4. After reasonable investigation the Plaintiff is without knowledge or
information sufficient to form a belief as to the allegations of paragraph NO.4.
Specifically, the return of service said to be attached to Plaintiff's Petition is not, if fact
attached to the Petition.
5. The allegations of paragraph NO.5 are admitted"
6. The allegations of paragraph NO.6 require no answer as that paragraph
contains only a statement of a Rule of Civil Procedure which will speak for itself.
7. The allegations of paragraph NO.7 are admitted in part. It is admitted that
Defendant has not explained in his Petition compelling reasons for filing that Petition to
Open apparently one day late. It is believed that compelillng reasons can be shown
and, pursuant to the Order of Court of August 15, 2005, depositions will be taken to
demonstrate the compelling reasons.
8. The allegations of paragraph NO.8 are admitted.
9. The allegations of paragraph NO.9 are denied for reasons including the
following:
A. The property is not suffering continuing loss or diminution, In fact, the
property is real estate which reasonably can be expected, barring waste, which is not
alleged, to appreciate in value;
B. As set forth in Plaintiff's Petition, PNC Bank has no legal rights and
remedies to be exercised. As set forth in the Petition, there has been no default, entry
of the judgment was legally improper and the merits of Plaintiff's claim are currently the
subject of an action in the Court of Common Pleas of Adams County, Pennsylvania.
10. The allegations of paragraph No. 10 require no answer as they simply state
the Defendant's preference for the means of proceeding by the Court. The Plaintiff
believes that the Court can economically arid appropriately decide all present issues in
one setting.
11. Paragraph No. 11 being framed in terms of what Defendant can "envision"
requires no answer. In fact, as previously set forth, it is believed that compelling
reasons, sufficient to defeat Defendant's Motion, will be established through
depositions to be taken and filed with the Court.
WHEREFORE, Defendant, NWI, Inc., request that Plaintiff's Motion to Strike be
denied and that Defendant's Motion to Strike or Open the Judgment be granted.
Jot Crabbs - 36809
20'_ Br adway
Her, PA 17331
7H-637-9799
Attorney for Defendant NWI, Inc.
CERTIFICATE OF SERVICI:
I hereby certify that on the 26th day of August, 200~i, I forwarded a true and
correct copy of the foregoing answer to counsel for the Plaintiff, by regular U.S. mail
addressed as follows:
Geoffrey S. Shuff, Esquire
2109 Market Sfreet
Camp Hill, PA 17011
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~ THE COURT OF COMMON PLEAS OF,CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
~NC BANK, NATIONAL ASSOCIATION,
Plaintiff
* DOCKET NO. 05-2415 CIVIL TERM
*
vs.
*
.
NWI,INC.,
Defendant
* CONFESSION OF JUDGMENT
* PREVIOUSLY ASSIGNED TO: J. GUIDO
DEFENDANT'S MOTION FOR EXTENSION OF TIME
AND FOR CONTINUANCE OF ARGUMENT
. Defendant, NWI, Inc., by it's attorney, John M. Crabbs, seeks an Order allowing
additional time to develop and present evidence and to postpone scheduled argument,
and says:
1. On or about May 10, 2005, Judgment by Confession was entered against
the Defendant in the within case in the amount of $706,879.42.
2. On or about July 1, 2005, Defendant file a Petition to Open or Strike off
that judgement.
3. Plaintiff has filed a Pe.tition seeking to Strike Defendant's Petition for
untimeliness, and this Court hasissued a Rule to Show Cause why Plaintiff's Motion to
Strike should not be granted.
4. On August 26, 2005 Defendant filed an Answer to that Petition.
5. Defendant had anticipated that evidenc,e would be provided through
dep?sition of it's President, Edward J. Abendschein.
6. Edward J. Abendschein is out of the country, in China, and is not
expected
to return to southern Pennsylvania until approximately September 27,2005.
7. Defendant's counsel normally communicates with Mr. Abendschein via
cell phone and that service is unavailable.
8. It is believed, and on that belief averred, that it is only through
communication with Mr. Abendschein that the relevant facts can be developed.
9. Defendant's counsel has sought the concurrence of Plaintiff's counsel by
telephone this date, however, as of the time that this Petition left Counsel's office,
counsel have not connected. It is anticipated that Plaintiff would oppose this request.
WHEREFORE, Defendant prays that this Court enter an Order:
1. Extending until October 15, 2005 the time for taking depositions in
opposition to Plaintiff's Motion to Strike Defendant's Petition to Open or Strike; and to
Continuing from September 23, 2005 the argument presently scheduled both on
Defendant's Petition to Open and on Plaintiff's Motion \0 Strike.
M. Crabbs - 36809
Broadway
nover, PA 17331
717-637-9799
Attorney for Defendant NWI, Inc.
VERIFICATION
I hereby, verify that the facts set forth in the foregoing Petition concerning the
travel of Defendant's President outside the United States are true and correct to the
best of my information and belief. In the absence of the President I am the acting office
manager/secretary/receptionist and have personal knowledge of his travel plans.
I understand that false statements herein are made subject to the penalties of
18 Pa. C.S.A. 94904 relating to unsworn falsification to authorities.
~J)&M
VERI FICA TION
I hereby, verify that the facts set forth in the foregoing Petition with respect to
communication between Defendant and it's counsel as well as with respect to source of
needed evidence are true and correct.
I understand that false statements herein are made subject to the penalties of
18 Pa. C.S.A. 34904 relating to unsworn falsification to authorities.
'.
CERTIFICATE OF SERVICE
I hereby certify that on the 2nd day of September, 2005, I forwarded a true and
correct copy of the foregoing answer to counsel for the Plaintiff, by regular U.S. mail
addressed as follows:
Geoffrey S. Shuff, Esquire
2109 Market Street
Camp Hill, PA 17011
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION,' DOCKET NO. 05-2415 CIVIL TERM
Plaintiff
.
VS.
.
.
NWI, INC.,
. CONFESSION OF JUDGMENT
Defendant
. PREVIOUSLY ASSIGNED TO: N/A
SUPPLEMENTAL AFFIDAVIT IN SUPPORT OF PETITION TO
STAY AND OPEN OR STRIKE .JUDGMENT
Edward 1. Abendschein, Petitioner Pro Se, says under the penalties of perjury:
1. Several events have occurred since my previous affidavit in support of the instant
petition. Concurrent with this affidavit, I have filed a petition in the Adams County case
between myself and PNC Bank asking the Court to order PNC Bank to consolidate or
merge the instant case with that case (PNC Bank, National Association, Plaintiffv.
Edward J. Abendschein, Defendant 05-S-73) and another Adams County case arising
from the same set offacts. (Edward 1. Abendschein, Tmstee v. PNC Financial Services
Group, Inc., and PNC Bank, N.A. 04-S-1318.). The Court should consider on its own
motion to delay any action in this case until that Petition is decided or alternatively to
order the consolidation of this case with the other two.
2. PNC Bank will not be hurt by any delay. In one of the Adams County cases it has
pleaded that it has not sold the note to any other person and holds it at this time. Any
delay can be compensated by the awarding of interest if PNC Bank should prevail. And
annexed as Exhibits 1 and 2 are two appraisals of the property on which PNC Bank holds
an uncontested lien.
3. Exhibit I is the title page and value opinion page of a 2001 appraisal prepared for and
paid for by PNC Bank in 2001 showing the property value as $1,000,000. Exhibit 2 is
the title page and value opinion page of a 2003 appraisal prepared for the Honorable
James B. Convery Essex County Superior Court of the State of New Jersey as part ofa
divorce action between the undersigned and his ex-wife showing the property value as
$1,500,000. Both values are far in excess of the amount clairned in the Judgment in this
case or the amount offered by the undersigned. Complete copies of these appraisals are
held by Crabbs and Crabbs, attorney for the corporate Defe:ndants.
4. The undersigned will be returning from a business/personal trip to Asia on the evening
of September 23, 2005 and will be representing New Way as an exhibitor at a trade show
on the West Coast of the United States until September 29. On October 2 he will be
embarking on a business/personal trip to Russia and Eastem Europe until Halloween.
The only day he will be on the East Coast of the United States when the Court is in
session is September 30. The undersigned asks that any mailings be sent to: Edward
Abendschein, c/o Crabbs and Crabbs, 201 Broadway, Hanover, PA 17331, although that
firm does not represent me.
5. The undersigned understands that as a Pro Se litigant, adverse actions may be taken in
his absence, but considering the amount of information possessed by the undersigned and
the early status of this litigation, the Court might consider rescheduling this hearing.
6. Also, the office of the Honorable Rodney Frelinghuysen, Republican member of the
House of Representatives, has just forwarded to me a copy ofthe investigation by the
Controller of the Currency into the facts surrounding this controversy. For the first time
PNC Bank admits that it terminated its relationship with the undersigned on March 25,
2003. The facts of three cases arise frorn the same three events, (1) the defalcation from
the pension fund assets in the amount of $1 00,030.00 by PNC Bank; (2) the termination
of the quasi-contracts and unilateral contract between the parties to the suit by PNC Bank
on March 25, 2003 when the undersigned tried to recover those assets; and (3) the
cessation of payments by the undersigned on October 26, 2004 as a means of dramatizing
the seriousness with which the undersigned regarded those previous actions by PNC
Bank.
VERIFICATION
I hereby verify that the statements in this Complaint are true and correct to the
best of my knowledge, information and belief. I und,erstand that false statements
are made subject to the penalties of 18P.A.C.S.A Section 4904 relating to
unsworn falsification to authorities. ~
1 ~~ Ed [ 11b~n
&' ~ efendant fro Se
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BELL REAL ESTATE
8438 CARLISLE: PIKE
YORK SPRINGS, P A 17372
APPRAISAL REPORT
FOR PROPERTY LOCATED AT:
210 BLETTNER AVENUE,
HANOVER, PA 17331
PREPARED F'OR:
PNC BANK
PREPARED :BY:
WAYNE B. OGBURN
APPRAISER
February 12, 2001
)
..;......
BELL REAL ESTATE
8438 CARLISLE PIKE
P.O. BOX 155
YORK SPRINGS, PA 17372
February 12,2001
PNC BANK
Ken Hanmaker
4242 Carlisle Pike, P.O. Box 8874
CampHill,PA 17001-8874
RE: 210 Blettner Avenue
Hanover, PA 17331
Dear Ken Hanmaker,
As per your request, I have inspected and appraised the property located at 210 Blettner
Avenue, Hanover,PA 17331.
The purpose of this appraisal is to estimate the value of property described herein. THIS
IS NOT A FIRREA APPRAISAL.
All pertinent market data has been investigated and analyzed subject to the limiting
conditions and assumptions included as part of my report. The market value of the
. as of February 12,2001, for building and land only, is estimated to be
$1,000,000. estimated value of the business is $650,000 which does not include
My report containing background information on the subje'ct property, market data,
analysis and conclusions of the investigation is attached
Thank you for allowing us to serve you at this time.
Sincerely,
4J~~ldL--
WayneB.OgbJ'
Appraiser
WBO/cl
cc: Mr. Edward J. Abendschein
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Tel. (717) 528-~144 -. Fax (717) 528-7381
E-Mail: beIl2@netrax.net
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COMPLETE IlPPRAlSIlL
(Sell. Contained Report I'orlnat)
Of
210 NORTH BLETTNER AVENUE
HANOVER, PENNSYLVANIA
CONEWAGOTOWNSHIP, ADAMS COUNTY
Prepared For
Ba....v J. Be..z, Esqui.-e
39 South Fulle..ton Avenue
Montclai.., NJ 07042
Date of Report
October 7. 2003
Effective Date of Value
October 2. 2003
ACTION APPRAISAL SERVICE
LOY L. KING
GA-000802-L
REAL ESTATE APPRAISER
R3228 MAIN STREET
MCSHERRYSTOWN. PA 17344
...
The report concludes with the opinion ofthe current market value of the subject's fee
simple interest, as October 2, 2003 (as-is) of
ONE MILLION FIVE HUNDRED THOUSAND DOLLARS
($11150011000)
It is emphasized that the market value opinions does not include any value attributable
to personal property items such as machinery or equipment.
This report has been completed in compliance with the Uniform Standards of
Professional Appraisal Practice adopted by the Apprais al Standards Board of the
Appraisal Foundation. This appraisal has also been completed in conformity with the
Code of Ethics and Standards of Professional Practice of the Appraisal institute.
The property is presently leased but was not considered in the Market Analysis.
However, other leases review were used in the Final Opinion of Value. (Due to the
privacy factor, some leased data must be retained).
It is important to us that this appraisal assignment has more than satisfied your
expectations, and we will be pleased to answer any questions you might have.
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Respectfully Submitted,
AC Iill( APPRAISAL SERVICE
.;
Loy L. King
Pennsylvania Certified General
Real Estate Appraiser
#GA-OOOB02-L
CC: Harry Herz, Esquire
Edward Fradkin, Esquire
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These pages are part of a total report.
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION, : DOCKET NO. 05-2415 CIVIL TERM
Plaintiff
vs.
NWI,INC.,
Defendant
: CONFESSION OF JUDGMENT
: PREVIOUSLY ASSIGNED TO: J. BAYLEY
o~
AND NOW, this ~ day of =- 2005, upon consideration of
the PlaintiWs Motion to Make Rule Absolute in the above-captioned matter, and it appearing that
no Answer to the Plaintiff s Petition to Strike as Untimely was fikd within seven days of service of
the Rule issued by this Court in response thereto, it is hereby ORDERED AND DIRECTED that
that the Petition to Open or Strike Off Judgment Entered by Confession ofNWI, Inc., filed July 1,
2005, in the above-captioned matter be stricken as untimely 1i!ed and the Rule and the Order
Staying Execution Under Judgment entered July 6, 2005, in connection with that Petition are each
hereby vacated
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BY THE c.m:fR~: //
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Edgar B. Bayley, J.
----
Distribution:
Geoffrey S. Shuff, Esq.
John M. Crabbs, Esq.
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i RECEIVED AUG 2921
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA
CNIL
PNC BANK, NATIONAL ASSOCIA nON, : DOCKET NO. 05-2415 CNIL TERM
Plaintiff
vs.
NWI, INC.,
Defendant
: CONFESSION OF JUDGMENT
: PREVIOUSLY ASSIGNED TO: 1. BAYLEY
ORDER
AND NOW, this 3L day of ~= 2005, upon consideration of
~, P","tift', C"",olid"",, Motio" To Striko P""600 of A",,"" 15,2005, And ^"'- To RID,
Of August 17, 2005, it is hereby ORDERED AND DIRECTED that:
1. the Rule of August 17, 2005, is hereby vacated;
2. Order Staying Execution of August 17, 2005, is hereby vacated (leaving the Order
Staying Exection of July 6th intact); and
J. tlw '''"tioo '" 0",," "' Stri"" Olf J""gm,", Eo""" by Cm,fu,,;oo ~d '0 S",
Execution Upon that Judgment Filed on August 15, 21905, by Edward J Abendschein,
Pro Se, is hereby stricken from the docket, and insl!ead shall be forwarded by the
Prothonotary to the counsel of record, John M. Crabbs, Esquire, 202 Broadway,
Hanover, Pennsylvania 17331, for such action as he deems appropriate on behalf of
his client.
BY Tf!~COURT:
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
. DOCKET NO. 05-2415 CIVIL TERM
.
.
vs.
.
NWI, INC.,
Defendant
. CONFESSION OF JUDGMENT
. PREVIOUSLY ASSIGNED TO:
. BAYLEY, J.
DEFENDANT'S PETITION SEEKING RECONSIDERATION OF THE
ORDER OF THIS COURT, DATED AUGUST 31,2005,
STRIKING DEFENDANt'S PETITION TO OPEN
AND VACATING THE RULE AND ORDER STAYING EXECUTION
ON THE JUDGMENT
Defendant, NWI, Inc., by its attorney, John M. Crabbs, says:
1. On or about May 10, 2005 Judgment by Confession was entered against the
Defendant in the within case in the amount of $706,879.4:2.
2. Notice thereof was served on the Defendant by the Sheriff of Adams County,
Pennsylvania.
.
3. On or about July 1, 2005 Defendant filed a Petition to Open or Strike off that
Judgment and to Stay Execution upon that Judgment.
4. Upon that Petition an Order was entered by this Court staying execution,
directing Plaintiff to answer Defendant's Petition, and scheduling Argument for
September 23, 2005.
5. On July 25, 2005 Plaintiff filed a Petition to Strike as Untimely Defendant's
Petition to Open or Strike. That Petition alleged service on Defendant on May 31, 2005
of Notice of the Judgment. It is believed, and on that belief averred, that as of that
date, no Return of Service had been filed with the Prothonotary.
6. On August 15, 2005 this Court entered an Order directing the filing by
Defendant of an Answer "within seven (7) days of service." A copy of that Order was
received by Defendant's counsel on August 19, 2005 by regular mail.
7. On August 26,2005, Defendant filed an Answer to that Petition (i.e. within 7
days of receipt of the Order).
8. On August 26, 2005, Plaintiff filed a Motion Seeking to Make Absolute the
Rule issued on August 15, 2005 on the ground that no Answer had been filed "within
seven (7) days of service."
9. On August 31, 2005 an Order was entered by this Court making that Rule
Absolute and ordering stricken the original Petition filed by Defendant seeking to open
or strike off the Judgment.
10. On August 26,2005, Defendant had filed a Motion seeking continuance of
the Argument scheduled for September 23, 2005 and further seeking an extension of
time to develop evidence which, it was hoped, could support a claim that tardiness, if
any, of filing the Petition to Open or Strike was excusable.
11, That Petition was based, in part, upon the facts that:
A. It was not then known to counsel when service
had been upon Defendant of Notice of the Judgment;
8, The President of Defendant was out of the country
and was unavailable to Defendant's counsel.
12. The net effect of the Order of Court of August 31,2005 is to put the
Defendant out of Court on its defense on account of not more than two (2) days
tardiness in two (2) separate filings, and that based upon the most technical of
readings of the Rules, and on flings of the parties which virtually "crossed" at filing.
13. It is submitted that the interests of justice require that the Court reconsider
its Order of August 31, 2005 and allow the matter to proceed to a decision on the merits
of Defendant's defense.
WHEREFORE, Defendant prays that this Court issue a Rule on Plaintiff to Show
Cause why the relief requested should not be granted; grant the Defendant additional
time to develop testimony with respect to the tardiness of filing the Petition to Open and
reschedule the Argument previously scheduled for September 23, 2005.
Attorney for Defendant
VERIFICATION
I HEREBY VERIFY that the statements made in this Petition are true and correct
to the best of my knowledge, information and belief. I understand that false statements
herein are made subject to the penalties of 18 Pa, C.SA S4904 relating to unsworn
falsification to authorities.
Date:
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I/1ff!u;Jt
n M. Crabbs
CERTIFICA TE OF SERVICE
U
I hereby certify that on this 2.{ day of September, 2005, a true and
correct copy of the Petition filed in the within case was served on counsel for the
Plaintiff, addressed as follows:
Matthew J. Eshelman, Esq.
2109 Market Street
Camp Hill, PA 17011
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
. DOCKET NO. 05-2415 CIVIL TERM
.
.
vs.
.
NWI, INC.,
. Defendant
. CONFESSION OF JUDGMENT
. PREVIOUSLY ASSIGNED TO:
. BAYLEY, J,
RULE TO SHOW CAUSE
AND NOW, this 8/P{J.. day of ~~, 2005, upon consideration of the
!
foregoing petition, it is hereby ordered that:
(1) a rule is issued upon the respondent to show cause why the petitioner is not
entitled to the relief requested;
(2) the respondent shall file an answer to the petition within ~O days of this
date;
(3) the petition shall be decided under Pa . R.CP. No. 206.7;
(4) depositions shall be completed within -z..:)--days of this date;
'-f1 00 A ,rII.
(5) argument shall be held on ~\07~A I, ;;!Ot25, a1.. 9. ,In Courtroom ~
of the Cumberland County Courthouse; and
. (6) notice of the entry of this order shall be provided to all parties by the
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
* DOCKET NO. 05-2415 CIVIL TERM
*
*
vs.
*
NWI, INC.,
Defendant
* CONFESSION OF JUDGMENT
* PREVIOUSLY ASSIGNED TO:
* BAYLEY, J.
DEFENDANT'S PETITION SEEKING RECONSIDERATION OF THE
ORDER OF THIS COURT, DATED AUGUST 31,2005,
STRIKING DEFENDANT'S PETITION TO OPEN
AND VACATING THE RULE AND ORDER STAYING EXECUTION
ON THE JUDGMENT
Defendant, NWI, Inc., by its attorney, John M. Crabbs, says:
1. On or about May 10, 2005 Judgment by Confession was entered against the
Defendant in the within case in the amount of $706,879.42.
2. Notice thereof was served on the Defendant by the Sheriff of Adams County,
Pennsylvania.
.
3. On or about July 1, 2005 Defendant filed a Petition to Open or Strike off that
Judgment and to Stay Execution upon that Judgment.
4, Upon that Petition an Order was entered by this Court staying execution,
directing Plaintiff to answer Defendant's Petition, and scheduling Argument for
September 23, 2005.
5. On July 25, 2005 Plaintiff filed a Petition to Strike as Untimely Defendant's
Petition to Open or Strike. That Petition alleged service on Defendant on May 31,2005
of Notice of the Judgment. It is believed, and on that belief averred, that as of that
date, no Return of Service had been filed with the Prothonotary,
6. On August 15, 2005 this Court entered an Order directing the filing by
Defendant of an Answer "within seven (7) days of service." A copy of that Order was
received by Defendant's counsel on August 19, 2005 by regular mail.
7. On August 26, 2005, Defendant filed an Answer to that Petition (i.e. within 7
days of receipt of the Order).
8, On August 26, 2005, Plaintiff filed a Motion Seeking to Make Absolute the
Rule issued on August 15, 2005 on the ground that no Answer had been filed "within
seven (7) days of service."
9. On August 31, 2005 an Order was entered by this Court making that Rule
Absolute and ordering stricken the original Petition filed by Defendant seeking to open
or strike off the Judgment.
10. On August 26, 2005, Defendant had filed a Motion seeking continuance of
the Argument scheduled for September 23, 2005 and further seeking an extension of
time to develop evidence which, it was hoped, could support a claim that tardiness, if
any, of filing the Petition to Open or Strike was excusable.
11. That Petition was based, in part, upon the facts that:
A. It was not then known to counsel when service
had been upon Defendant of Notice of the Judgment;
B. The President of Defendant was out of the country
and was unavailable to Defendant's counsel.
12. The net effect of the Order of Court of August 31, 2005 is to put the
Defendant out of Court on its defense on account of not more than two (2) days
tardiness in two (2) separate filings, and that based upon the most technical of
readings of the Rules, and on flings of the parties which virtually "crossed" at filing,
13. It is submitted that the interests of justice require that the Court reconsider
its Order of August 31, 2005 and allow the matter to proceed to a decision on the merits
of Defendant's defense.
WHEREFORE, Defendant prays that this Court issue a Rule on Plaintiff to Show
Cause why the relief requested should not be granted; grant the Defendant additional
time to develop testimony with respect to the tardiness of filing the Petition to Open and
reschedule the Argument previously scheduled for September 23, 2005,
. Crabbs - 36809
B adway
aver, PA 17331
(717) 637-9799
Attorney for Defendant
VERIFICATION
I HEREBY VERIFY that the statements made in this Petition are true and correct
to the best of my knowledge, information and belief. I understand that false statements
herein are made subject to the penalties of 18 Pa, C.S,A, 94904 relating to unsworn
falsification to authorities.
r
Date: ? ~ J...{ - 0 ~
CERTIFICATE OF SERVICE
U
I hereby certify that on this 2./ day of September, 2005, a true and
correct copy of the Petition filed in the within case was served on counsel for the
Plaintiff, addressed as follows:
Matthew J. Eshelman, Esq.
2109 Market Street
Camp Hill, PA 17011
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
PNC BANK, NATIONAL ASSOCIATION, *
Plaintiff *
*
DOCKET NO. 05-2415 CIVIL TERM
v.
*
*
CONSIDERATION OF JUDGMENT
PREVIOUSLY ASSIGNED TO:
BAYLEY,J.
NWI, INC.,
*
Defendant
*
CERTIFICATE OF SERVICE
d-
I hereby certify that on the ,tiJ of September, 2005, I served a copy of the Rule to Show
Cause dated September 25,2005 in the within case by mailing a copy thereof together with a
copy of Defendant's Petition for Reconsideration addressed as follows:
Matthew J. Eshelman, Esquire
2109 Market Street
Camp Hill. PA 17011
(717) 737-3405
1. Crabbs - 38609
Broadway
nover, PA 17331
(717) 637-9799
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION, : DOCKET NO. 05-2415 CIVIL TERM
Plaintiff
vs.
NWI, INC.,
Defendant
CONFESSION OF JUDGMENT
: PREVIOUSLY ASSIGNED TO: J. BAYLEY
PRAECIPE FOR WRIT OF EXECUTION
UPON A CONFESSED JUDGMENT
To the Prothonotary:
Issue a writ of execution upon a judgment entered by confession in the above matter,
(1) directed to the sheriff of Adams County, Pennsylvania;
(2) against NWI, Inc., 210 North Blettner Avenue, Hanover, Pennsylvania 17331,
Defendant; and
(3) against: Bank of Hanover, 6 York Street, Gettysburg, Pennsylvania 17325,
Garnishee;
and serve the accompanying Interrogatories to Garnishee upon the Gamishee at the address
stated above;
(4) and index this writ
(a)
against
, Defendant; and
(b) against: , as Gamishee, as a lis pendens against real
property of the Defendant in name of Garnishee as follows:
(5)
Principal Amount Due
Interest from May 10, 2005 at the
rate of$210.35 per day
Costs
$706,879.42
$ (to be added)
$ (to be added)
CERTIFICATION
I certify that (a)
(b)
This praecipe is based upon a judgment entered by confession; and
Notice has been served pursuant to Rule 2958.1 at least thirty days prior to
the filing of this Praecipe as evidenced by a Sheriff Service Process Receipt.
Respectfully submitted,
SAlOIS, SHUFF, FLOWER & LINDSAY
,1
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By:
eo uff, Esquire
$uPJi e urt ID #24848
2'109 Mar et Street
Camp Hill, PA 17011
(717) 737-3405
Attorneys for PNC Bank, National
Association
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WRIT OF EXECUTION andlor ATTACHMENT
COMMONWEALTH OF PENNSYLVANIA)
COUNTY OF CUMBERLAND)
NO 05-2415 Civil
CIVIL ACTION - LAW
TO THE SHERlFF OF ADAMS COUNTY:
To satisfy the debt, interest and costs due PNC BANK, NATIONAL ASSOCIATION, Plaintiff (s)
From NWI, 1NC., 210 NORTH BLETTNER A VENUE, HANOVER, PENNSYL VANIA, 17331
(1) You are directed to levy upon the property of the defendant (s)and to seJl
(2) You are also directed to attach the property of the defendant(s) not levied upon in the possession
of BANK OF HANOVER, 6 YORK STREET, GETTYSBURG, PA 17325 - SERVE THE
ACCOMPANYING INTERROGA TOREIS TO GARNISHEE
GARNlSHEE(S) as foJlows;
and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from
paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant
(s) or otherwise disposing thereof;
(3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession
of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a
garnishee and is enjoined as above stated.
Amount Due $706,879.42
L.L. $.50
Interest FROM 5/10/05 AT THE RATE OF $210.35 PER DAY
Atty,s Corum %
Due Prothy $1.00
Other Costs
AttyPaid $53.00
Plaintiff Paid
Date. SEPTEMBER 12, 2005
(Seal)
By:
Deputy
REQUESTING PARTY:
Name GEOFFREY S. SHUFF, ESQUIRE
Address; SAIDIS, SHUFF, FLOWER & LINDSAY
2109 MARKET STREET
CAMP HILL, PA 17011
Attorney for: PLAINTIFF
Telephone: 717-737-3405
Supreme Court lD No. 24848
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION, : DOCKET NO. 05-2415 CIVIL TERM
Plaintiff
vs.
NWI, INC.,
Defendant
: CONFESSION OF JUDGMENT
: PREVIOUSLY ASSIGNED TO: J. BAYLEY
PRAECIPE FOR WRIT OF EXECUTION
UPON A CONFESSED JUDGMENT
To the Prothonotary:
Issue a writ of execution upon a judgment entered by confession in the above matter,
(1) directed to the sheriff of Delaware County, Pennsylvania;
(2) against NWI, Inc., 210 North Blettner Avenue, Hanover, Pennsylvania 17331,
Defendant; and
(3) against: Chase Bank, 100 Granite Drive, Suite 106, Media, Pennsylvania 19063,
Garnishee;
and serve the accompanying Interrogatories to Garnishee upon the Garnishee at the address
stated above;
(4) and index this writ
(a)
against
, Defendant; and
(b) against: , as Garnishee, as a lis pendens against real
property of the Defendant in name of Garnishee as follows:
(5)
Principal Amount Due
Interest from May 10, 2005 at the
rate of$210.35 per day
Costs
$706,879.42
$ (to be added)
$ (to be added)
I certify that ( a)
(b)
Date: q !t!G(
CERTIFICATION
This praecipe is based upon a judgment entered by confession; and
Notice has been served pursuant to Rule 2958.1 at least thirty days prior to
the filing of this Praecipe as evidenced by a Sheriff Service Process Receipt.
Respectfully submitted,
SAlOIS, SHUFF, FLOWER & LINDSAY
By:
eo ey.. ff, Esquire
Su em€' Cou ID #24848
2109 Market S reet
Camp Hill, PA 17011
(717) 737-3405
Attorneys for PNC Bank, National
Association
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WRIT OF EXECUTION andlor ATTACHMENT
COMMONWEALTH OF PENNSYLVANIA)
COUNTY OF CUMBERLAND)
NO 05-2415 Civil
CIVIL ACTION - LAW
TO THE SHERIFF OF DELAWARE COUNTY:
To satisfy the debt, interest and costs due PNC BANK, NATIONAL ASSOCIA nON, Plaintiff (sj
From NWI, INC., 210 NORTH BLETTNER A VENUE, HANOVER, PENNSYLVANIA, 17331
(I) You are directed to levy upon the property of the defendant (sjand to sell
(2) You are also directed to attach the property of the defendant(s) not levied upon in the possession
of CHASE BANK, 100 GRANITE DRIVE, SIDTE 106, MEDIA, PA 19063 - SERVE THE
ACCOMPANYING INTERROGATORIES TO GARNISHEE
GARNISHEE(S) as follows;
and to notify the garnishee(s) that (a) an attachment has been issued; (b) the garnishee(s) is enjoined from
paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant
(s) or otherwise disposing thereof;
(3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession
of anyone other than a named garnishee, you are directed to notify him/her that helshe has been added as a
garnishee and is enjoined as above stated.
Amount Due $706,879.42
L.L. $.50
Interest FROM 5/10/05 AT THE RATE OF $210.35 PER DAY
Arty's Comm %
Due Prothy $1.00
Other Costs
Arty Paid $50.50
Plaintiff Paid
Dare. SEPTEMBER 12, 2005
(Seal)
By.
Deputy
REQUESTING PARTY:
~/
". Name GEOFFREY S. SHUFF, ESQIDRE
Address: SAIDlS, SHUFF, FLOWER & LINDSAY
2109 MARKET STREET
CAMP HILL, P A l70ll
Attorney for: PLAINTIFF
Telephone. 717-737-3405
Supreme Court ID No. 24848
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION, : DOCKET NO. 05-2415 CIVIL TERM
Plaintiff
vs.
NWI, INC.,
Defendant
: CONFESSION OF JUDGMENT
: PREVIOUSLY ASSIGNED TO: J. BAYLEY
PLAINTIFF'S ANSWER TO
DEFENDANT'S PETITION SEEKING RECONSIDERATION
Plaintiff, PNC Bank, National Association, (PNC Bank) respectfully presents this Answer
To Defendant's Petition Seeking Reconsideration Of The Order Of This Court Dated August 31,
2005, Striking Defendant's Petition To Open And Vacating The Rule And Order Staying Execution
On The Judgment (the "Petition Seeking Reconsideration"), with all facts asserted herein appearing
ofrecord, as follows:
1. On May 10, 2005, PNC Bank entered judgment by confession against the
Defendant, NWI, Inc., in the above-captioned matter pursuant to Pa. R.C.P. No. 2951(b)
(hereinafter, cites to Pa. R.C.P. are referred to by Rule number, e.g., "Rule 2951 ").
2. On May 31, 2005, the Notice required by Rule 2956.1(c)(2)(i) was served by the
Sheriff of Adams County, in the manner prescribed by Rules 2958.l(b)(1)(i) and 402(a)(2)(iii), by
handing a copy of the Notice at an office or usual place of business of the Defendant to the agent or
person for the time being in charge thereof, in the person of one Linda Eaton, Receptionist. A copy
of the Sheriff's Service of Process Receipt and Return of Service is attached hereto as Exhibit "A"
for reference.
3. On Friday, July 1, 2005, thirty-one days after service of the 2956.1 Notice, the
Defendant filed a Petition To Open or Strike Off Judgment Entered By Confession pursuant to Rule
2959 (the "Petition to Open Confessed Judgment").
4. However, Rule 2959(a)(3) specifically provides that "[i]f written notice is served
upon the [Defendant] pursuant to Rule 2956.1(c)..., the petition shall be filed within thirty days
after such service. Unless the defendant can demonstrate that there were compelling reasons for
the delay, a petition [to open a confessed judgment] shall be denied." Rule 2959(a)(3) (emphasis
added).
5.
At the time of its Petition to Open Confessed Judgment under Rule 2959, the
Defendant did not offer any compelling reasons, in its Petition or elsewhere, why the Petition was
not timely filed within thirty days of service.
6. Therefore, on July 25, 2005, the Plaintiff filed a Petition to Strike as Untimely the
Defendant's Petition to Open Confessed Judgment (the "Petition to Strike as Untimely").
7. On August 15, 2005, the Honorable Edgar B. Bayley, J., issued a Rule against
Respondent, NWI, Inc., returnable within seven days of service, to show cause why the Plaintiff's
Petition to Strike as Untimely should not be granted. A copy of the Rule is attached hereto as
Exhibit "B" for reference.
8. A copy of the Rule was mailed to counsel of record for the Respondent, John M.
Crabbs, Esquire, on August 18,2005. A copy of the certificate of service and U.S. Postal Service
Certificate of Mailing is attached hereto as Exhibit "c" for reference.
9. A copy of the Certificate of Mailing was enclosed with a copy of the Rule served
upon Attorney Crabbs.
10. Rule 440(b) provides that "Service by mail of legal papers other than original
process is complete upon mailing." Rule 440(b) (emphasis added).
11. When the Defendant had not filed an answer to the petition within seven days of the
date of mailing, on August 25, 2005, Plaintiff, PNC Bank, filed a Motion to Make Rule Absolute at
3:36 o'clock p.m., on August 26, 2005.
12. At 4:10 o'clock p.m., on August 26,2005, eight days after service of the Rule, and
subsequent to the Plaintiffs Motion to Make Rule Absolute, the Defendant filed an Answer to
Plaintiffs Petition To Strike As Untimely.
13. The Defendant's Answer provided, in part, as follows:
It is admitted that Defendant has not explained in his [sic] Petition
compelling reasons for filing that Petition to Open apparently one day late. It is
believed that compelling reasons can be shown and, pursuant to the Order of Court
of August 15, 2005, depositions will be taken to demonstrate the compelling
reasons.
Defendant's Answer, Paragraph 7.
14. Demonstration of any reasons for the untimeliness of filing a Petition to Open
Confessed Judgment, compelling or otherwise, rest solely with the filing party.
15. In neither its Petition to Open Confessed Judgment nor its Answer to PNC's
Petition To Strike As Untimely, did the Defendant allege any reasons whatsoever for the untimely
filing, let alone any which could be supported by conducting depositions.
16. On August 31, 2005, the Court issued an Order making the Rule Absolute and
thereby dismissing the Petition to Open Confessed Judgment as untimely filed.
17. On or about September 21, 2005, the Defendant filed its Petition Seeking
Reconsideration of that Order.
18. It is submitted that the Defendant still has not shown "compelling reasons" for the
tardiness of its filings.
WHEREFORE, Plaintiff, PNC Bank, National Association, requests that the Petition
Seeking Reconsideration be denied.
Date: October 5, 2005
Respectfully submitted, 1
SAlOl , "'~OWER&LINDSAY
By: ~-
Geoffrey S. huff, Esquire ID #24848
Matthew J. Eshelman, Esquire 10 #72655
2109 Market Street, Camp Hill, PA 17011
(717) 737-3405 (fax) 737-3407
Attorneys for Plaintiff, PNC Bank, National
Association
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION, : DOCKET NO. 05-2415 CIVIL TERM
Plaintiff
vs.
NWI, INC.,
Defendant
: CONFESSION OF JUDGMENT
: PREVIOUSLY ASSIGNED TO: J. BAYLEY
CERTIFICATE OF SERVICE
AND NOW, this ~- day of O(~~ 2005, I, Matthew J. Eshelman, Esquire, of
the firm of Saidis, Shuff, Flower & Lindsay, P.C., hereby certify that I this day served a true and
correct copy of the Plaintiff's Answer to Rule Issued Upon Defendant's Petition Seeking
Reconsideration as addressed below via United States Mail, postage prepaid, addressed as follows:
John M. Crabbs, Esquire
CRABBS & CRABBS
202 Broadway
Hanover,PA 17331
Respectfully submitted,
SAID~Sr ~HurtfL, '7WER & LINDSAY,
By: WWb Ie c---------
Geoffrey S. Shuff, Esquire ID #24848
Matthew J. Eshelman, Esquire ID #72655
2109 Market Street, Camp Hill, P A 17011
Phone: 717-737-3405 Fax: 717-737-3407
Attorneys for Plaintiff, PNC Bank, N.A.
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
* DOCKET NO, 05-2415 CIVIL TERM
*
*
vs.
*
*
NWI,INC.,
Defendant
* CONFESSION OF JUDGMENT
* PREVIOUSLY ASSIGNED TO:
* J. BAILEY
MOTION TO CONSOLIDATE
1. This case is in a Judgment entered by Confession on the 10th day of May,
2005.
2. The underlying obligation is that of Edward J. Abendschein.
3. Additional Judgments have been entered against New Way Packaging
Machinery, Inc. and NWI, Inc., each as guarantor of the obligation of Abendschein.
4. The amount of the Judgment in each of the three cases is in an identical
amount.
5. Each of the Defendants has raised or sought to raise objections to the
amount of the Judgment, specifically seeking modification of the prepayment penalty
and amount of appropriate attorney's fees.
6. Although Plaintiff may be entitled to payment of an amount of principal with
interest and other charges, it is asserted that:
A. The amount should be modified; and
B. Plaintiff is entitled only to one satisfaction.
7, All issues in dispute are common to all three Judgments.
8. All witnesses, documentation, and other matters are virtually identical in each
of the three cases.
WHEREFORE, your Defendant prays that the cases be consolidated by the
court for consideration in a single proceeding.
Attorney for Defendant,
NWI, Inc.
VERIFICATION
I HEREBY VERIFY that the statements made in this Motion are true and correct
to the best of my knowledge, information and belief. I understand that false statements
herein are made subject to the penalties of 18 Pa. C.SA ~4904 relating to unsworn
falsification to authorities.
Date:
11-/0 -0 ~
,
CERTIFICATE OF SERVICE
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I hereby certify that on this /0 day of November, 2005, a true and
,
correct copy of the foregoing Motion to Consolidate was served by Regular U. S. Mail,
addressed as follows:
Matthew J, Eshelman, Esq,
2109 Market Street
Camp Hill, PA 17011
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MASON DIXON BUSINESS FORMS, INC. 33000026
DATE RECEIVED
DATE PROCESSED
SHERIFF'S DEPARTMENT
ADAMS COUNTY, PENNSYLVANIA
COURTHOUSE, GETTYSBURG, PA 17325
INSTRUCTIONS, See "INSTRUCTIONS FOR SERVICE OF PROCESS BY
THE SHERIFF" on the reverse 01 the last (No.5) copy of this form. Please
type or print legbly, inauring readability of all copies.
00 not _ any caple., ACSD EHV.I
1. PLAINTIFFISI 2. COURT NUMBER
PNC BANK. NATIONAL ASSOCIATION 05-2415 Civil Term i/
3. DEFENDANTISI 4. TYPE OF WRIT OR COMPLAINT:
NWI, INC. Notice Under Rule 2958.1
SERVE 5, NAME OF INDIVIDUAL. COMPANY. CORPORATION. ETC.. TO SERVICE OR DESCRIPTION OF PROPERTY TO BE LEVIED. ATTACHED OR SOLD,
.
SHERIFF SERVICE
PROCESS RECEIPT, end AFFIDAVIT OF RETURN
NWI, Inc.
6. ADDRESS (Street or RFO. Apartment No., City, Bora, Twp., State and ZIP CODE)
AT
210 N. Blettner Avenue, Hanover, PA 17331
7, INDICATE UNUSUAL SERVICE: 0 PERSONAL 0 PERSON IN CHARGE 0 DEPUTIZE 0 CERT, MAIL 0 REGISTERED MAIL 0 POSTED 0 OTHER
Now, , I, SHERIFF OF ADAMS COUNTY, PA., do hereby deputize the Sheriff of
County to execute this Writ and make return therof according to law. Th~ delWlation being
made at the request and risk of the plaintiff. C" ':~ 0
- ~ S~~UFF O~AMS COUNTY
8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE. :-j' ':5 I-n
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12. I acknowledge receipt of the writ
Of complaint as indicated above.
SIGNATURE of Authorized ACSD Oaputy Q( Clerk and Title
13_ Date Received
14. Expiration I Hearing date
5-27-2005
15. I hereby CERTIFY and RETURN that I 0 have personally served, X have served person in charge, 0 have legal evidence of service as shown in "Remarks" (on reverse)
o have posted the above described property with the writ or complaint described on the individual, company, corporation, etc., at the address shown above or on the
individual, company, corporation, etc., at the address inserted below by handing/or Posting a TRUE .nd ATTESTED COPY therof.
16. 0 I hereby certify and return a NOT FOUND because I am unable to locate the individual, company, corporation, etc., named above. (See remarks below)
17. Name and title of individual served
Linda Eaton
Rece tionis t
18. A perllOl'l of suitable age and discretion Read Order
then residIng in the defendant's usual 0
plllCeofllbode.O
20. Date of Service 21. Time
19. Address of where served (complete only if different than shown above) (Street or RFD, Apartment No., City, Boro, Twp.,
State and ZIP CooE)
5/31/2005
2:35PM
25.
Mlle. Dep.lnt.
Dep.lnt.
22. ATTEMPTS
Dep.lnt. O.t.
28.lCIIlIDCIIOll((llI(REFUND
$128.60 Ck. #12871
AFFIRMED and subscribed to before me this
NA
day of
. Sheriff) (PIeue Print or Type)
Jonatna Ban ert
SIgnoturo of _
RAYMOND W. NEWMAN
0010
5/31/2005
0010
5 31 2005
Prothonolary~ Public
SHERIFF OF ADAMS COUNTY
MY COMMISSION EXPIRES
I ACKNOWLEDGE RECEIPT OF THE SHERIFF'S RETURN SIGNATURE
39. Date Received
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33000026
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by
prepaid,
a1rue end atte51ed copy thereof 51
, the within named
mail, return receipt requested, postage
on the
( )
The return receipt signed by
defendant on the is hereto attached and
made a part of this return.
(2) Outside the COft#nonwealth, pursuant 1Q pif. F1.<f.p. ~5 (e) (1) (2)', by mailing a true
':. :',." :..:.,....':. _',:_" ;)....... , " "-.;r.,:.;,.>
and !I11~lltedcqpy.t~eof at
in the following manner:
) (a) to the defendant by ( ) registered (
postage prepaid, addressee only on the
said receipt being returned NOT signed by defendant, but with a notation by the Postal Authorities
thatDllfendallt rllfu8lld to accept the same. The-returned receipt and envelope is attached hereto
and mllde a part Df'thls return.
And there.:
) (b) To the defelldant by ordinary mail adlllressecUo defendant at same address, with tl\!l return
address of the Sheriff appearing thereon; on the
) cel1ltteit:mail, return receipt requested,
F
"'.,"
I further certify,that after fifteen (15) days from the mailing date, I h,ve not received
said env~pe,bllck from the Postal Authorities. A certificate of mailing is hereto attached as a
proof of mailing. .
( ) ( 3) By publication 'in the Adams County Legal Journal, a weekly publication 9f gen~..1 circul@lion in
the County of Adams, Commonwealth of Pennsylvanie, end the Gettysburg Tl_, a dally
newspaper Pl!lllished in the County of Adams, Commonwe.alth of Pennsylvania and having general
circulation in said County for
succes.we'~k.s of
. The AtffdlIVl1S
from said Adams County Legal Journal and Gettysburg Times, are hereto attached and made
part of this return.
( ( ~) By mailing t~
by mail, return receipt requested, postage prepaid,
on the
,./II true lI0d atfestlld copy there9f at
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The
Authorities /JI!I~lfId
Is hereto attached.
( ) (5) Other
returned by the Postal
.
PNC BANK. NATIONAL
ASSOCIATION,
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
NWI, INC.,
DEFENDANT
05-2415 CIVIL TERM
ORDER OF COURT
AND NOW, this _bL day of December, 2005, a Rule is entered
against PNC Bank, National Association to show cause why the within motion to
consolidate, should not be granted. Rule returnable not later than fifteen (15) days from
service.
The Prothonotary shall forward any answer filed by plaintiff to chambers.
By the Court, / / //
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Edgar B. Bayley, J.
~tthew J. Eshelman, Esquire
For PNC Bank, National Association
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
vs.
DOCKET NO. 05-2415 CIVIL TERM
NWI, INC.,
Defendant
CONFESSION OF JUDGMENT
PREVIOUSLY ASSIGNED TO: J. BAYLEY
PLAINTIFF PNC BANK'S ANSWER TO RULE
IN RESPONSE TO DEFENDANT NWI'S
MOTION TO CONSOLIDATE
Plaintiff, PNC Bank, National Association ("PNC Bank") by and through its attorneys,
Saidis, Shuff, Flower & Lindsay, files the following Answer to the Rule to Show Cause issued in
the above-captioned matter on December 6, 2005, regarding the Defendant NWI's Motion To
Consolidate, and in support thereof avers as follows:
1. Admitted. It is admitted that on or about May 10, 2005, Judgment by confession
was entered against the Defendant in the within case in the amount of $706,879.42. By way of
further answer, since judgment has been entered in the case, the case cannot at this time be
consolidated with any other case.
2. Admitted. It is admitted that the underlying obligation is that of Edward J.
Abendschein ("Abendschein"). By way of further answer, Abendschein executed and delivered to
PNC Bank a Promissory dated February 21, 2001 (the "Note") in connection with a loan in the
original principal amount of$750,000.00.
3. Admitted. It is admitted that additional Judgments have been entered against
New Way Packaging Machinery, Inc. ("New Way") and NWI, Inc. ("NWI"), each as guarantor
of the obligation of Abendschein. By way of further answer, New Way and NWI each executed
and delivered to PNC Bank a Commercial Guaranty dated February 21,2001, under which they
each guaranteed to PNC Bank, among other obligations to PNC Bank, the payment of all amounts
due to PNC Bank by Abendschein under the Note,
4. Admitted. It is admitted that the amount of the Judgment in each of the three
cases is an identical amount. By way of further answer, on May 10, 2005, PNC Bank entered
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three separate Judgments by confession, under three separate cognovit instruments, against NWI,
against Abendschein, and against New Way, pursuant to Pa. R.c.P. No. 2951(b) to the above Court
and term at docket numbers 05-2415, 05-2416 and 05-2418, respectively.
5. Admitted. It is admitted that each of the Defendants has raised or sought to raise
objections to the amount of the Judgment, specifically seeking modification of the prepayment
penalty and amount of appropriate attorney's fecs by way of averments contained in petitions to
open the Jud!,'111ents that were not timely filed under the Rules.
6. Admitted in part and denied in part. It is denied that the amount should be
modified. It is admitted that PNC Bank is entitled only to one satisfaction; however, since the
obligations of the Defendants are joint and several, the satisfaction may be obtained from any or
all of the Defendants. By way of further answer, PNC Bank acknowledges that it is only entitled
to, and will only, collect the amount which is required for satisfaction of the debt to the Bank,
regardless of the amount of the Judgment. By way of further answer, existing law provides for
execution upon multiple judgments where there may be but one satisfaction.
7. Denied. It is denied that all issues in dispute are common to all three Judgments.
Each Judgment is against a different Defendant. Each Judgment arises under a different
instrument. Each Defendant owns property unique to that Defendant, so that if PNC Bank must
execute against the property of one Defendant to collect the debt, the matter is different than if
PNC Bank were to execute against the property of either of the other Defendants.
8. Denied. Again, each Judgment arises under a different instrument. Also, ifPNC
Bank were to proceed only under the Judgment against one Defendant, the other two Defendants
would not be involved. For example, if PNC Bank were to proceed only under the Judgment
against Defendant Abendschein, neither of the Defendants New Way or NWI would be involved in
the proceeding.
WHEREFORE, Plaintiff, PNC Bank, National Association, respectfully requests that this
Honorable Court deny Defendant NWl's Motion to Consolidate.
Respectfully submitted,
SAlOIS, SHUFF, FLOWER & LINDSAY
By: \. t i~a 1G
Geof' S. Shuff, Esquire ill #2484S:
Matthew 1. Eshelman, Esquire ill #72655
Suzanne C, Hixenbaugh, Esquire ill #91641
2109 Market Street
Camp Hill, PA 17011
Phone: 717-737-3405
Fax: 717-737-3407
Attomeys for Plaintiff, PNC Bank
.
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION, : DOCKET NO. 05-2415 CIVIL TERM
Plaintiff
vs.
NWI, INC.,
Defendant
: CONFESSION OF JUDGMENT
: PREVIOUSLY ASSIGNED TO: J. BAYLEY
CERTIFICATE OF SERVICE
AND NOW, thisoif 31 day of nI!.tHLt~" 2005, I, Matthew J. Eshelman, Esquire, of
the linn of Saidis, Shuff, Flower & Lindsay, P.c., hereby certify that I this day served a true and
correct copy of the Plaintiffs Answer to Defendant NWI's Petition to Consolidate upon the party
fisted below via United States Mail, postage prepaid, addressed as follows:
John M. Crabbs, Esquire
CRABBS & CRABBS
202 Broadway
Hanover, PA 17331
Respectfully submitted,
SAIDIS, SHUFF, FLOWER & LINDSAY
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By: ( L'i\; ~[( '.' (. :Ctv{a l:.~i': ;l?
Geo IT S. Shuff, Esquire ID #24848
Matthew J. Eshelman, Esquire ID #72655
2109 Market Street
Camp Hill, P A 17011
Phone: 717-737-3405
Fax: 717-737-3407
Attorneys for Plaintiff, PNC Bank
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PNC BANK, NATIONAL
ASSOCIATION,
PLAINTIFF
V.
NWI,INC.,
DEFENDANT
AND NOW, this
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
05-2415 CIVIL TERM
ORDER OF COURT
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day of December, 2005, reviewing the petition
to consolidate and the answer filed thereto, the motion to consolidate by NWI, Inc., IS
DENIED.
Matthew J. Eshelman, Esquire
For PNC Bank, National Association
John M. Crabbs, Esquire
For Defendant
:sal
By the Court,
Edgar B. Bayey, J.
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK NATIONAL ASSOCIATION,
Plaintiff
* DOCKET NO. 05-2415
* CIVIL TERM
*
vs.
*
Defendant
* CONFESSION OF JUDGMENT
* PREVIOUSLY ASSIGNED TO:
* BAYLEY, J.
NWI,INC.,
PETITION SEEKING STAY OF EXECUTION
Defendant, NWI, Inc., by its attorney, John M. Crabbs, respectfully
seeks an Order of Court staying execution on the Judgment confessed herein on or
about May 10, 2005, and says:
1. Edward J. Abendschein ("Abend schein") borrowed money from PNC Bank.
2. This obligation was secured by a mortgage on certain real estate owned by
Abendschein, which real estate is located in Adams County, Pennsylvania.
3, The obligation was further secured by guarantees given to PNC Bank by \wo
corporations controlled by Abendschein: NWI, Inc. ("NWI"); and New Way Packaging
Machinery, Inc.("New Way").
4, On or about January 19, 2005 an action in mortgage foreclosure was filed by
PNC against Abendshein in the Court of Common Pleas of Adams County,
Pennsylvania, which action was docketed to No. 05-S-73,
5. On May 10, 2005, judgment was confessed by PNC in this Court: against
Abendschein on his Note in No. 05-2416; against NWI on its guarantee in No 05-2415
and against New Way on its guarantee in No. 05-2418.
6. Notice of the various judgments (each in the amount of $706,87942, claiming
Principal, Interest, Prepayment fee, percentage attorney fees and other costs and
expenses) was served at the business address of the Defendants in Adams County.
Pennsylvania, by service on the "person in charge."
7. On July 1, 2005, a Petition to Strike or Open the NWI Judgment was filed in
this Court.
8. It was not immediately perceived that judgments had been entered against all
three Defendants but was known to Abendschein only that the Judgment had been
entered against NWI. It was only later that he learned of the existence of the other
Judgments.
9, On or about December 1, 2005, Petitions to Open both the New Way and
Abendschein Judgments were filed.
10, By Order dated February 9,2006, the Court denied all Petitions to Open, but
with reference to exercise of its equitable powers with respect to appropriate amounts
of the Judgments.
11. The mortgage foreclosure proceeding continues in the Court of Common
Pleas of Adams County, Pennsylvania.
12. In that Court, there is a pending Motion for Summary Judgment by Plaintiff,
PNC Bank. (A copy of that Motion is attached to this Petition,)
13. On Friday, February 17, 2006, Abendschein filed his Response to that
Motion for Summary Judgment. (A copy of that response, including his Affidavit.
directed in part to payments made, is attached.)
14. On February 21,2006, copies of Abendschein's Response were served on
Plaintiff by regular U,S. Mail.
15. At that time, (with those copies) a check in the amount of $57,83719 was
forwarded by Abendschein to PNC Bank.
16. On information and belief, during December, 2005, Plaintiff herein receiver!,
upon an earlier garnishment of funds in the hands of Bank of Hanover. the sum of
$499,901.30.
17. As of the time of filing this Petition, there has been an amount of
approximately $557,738.49 paid to PNC Bank on account of the obligation. since entry
of the three judgments,
18, Your Petitioner believes, and on that belief avers, that determination of the
full and total balance due under the original obligation is now pending before the Court
of Common Pleas of Adams County, Pennsylvania.
19. Petitioner further believes, and on that belief avers, that all of the payments
above set forth have been made to the Plaintiff without in any way impairing the value
of the real estate securing the original obligation and that that value remains many
times any amount remaining due and payable to Plaintiff,
20, Your Petitioner believes that the interests of justice would be served withoul
prejudice to any legitimate interests of the Plaintiff by exercise of this Court's equitable
powers to stay further execution under the Judgment in this case and deferring to
pending proceedings in the Court of Common Pleas of Adams County, Pennsylvania
WHEREFORE, your Petitioner respectfully prays that a Rule be issued upon
Plaintiff to show cause why the relief requested should not be granted and that
execution be stayed pending any further proceedings upon that rule, or otherwise
Respectfully submitted,
M. Crabbs - 36809
Broadway
nover, PA 17331
(717) 637-9799
VERIFICATION
I hereby verify that the facts and matters set forth in the preceding Petition
Seeking Stay of Execution are true and correct to the best of my knowledge,
information and belief.
This Verification is made by counsel for the Defendant due to the unavailability of
the Defendant to provide a physical signature,
Immediately before filing with the Court, a duplicate original has been forwarded
to Defendant for Verification.
Upon receipt of such verified Petition, the same will be forwarded to the
Prothonotary for filing.
CERTIFICATE OF SERVICE
I hereby certify that on this 22nd day of February, 2006, a true copy of the
foregoing Petition Seeking Stay of Execution was served on Plaintiff by Regular U S.
Mail addressed as follows:
Geoffrey S. Shuff, Esq,
McNees, Wallace & Nurick, LLC
P. O. Box 1166
100 Pine Street
Harrisburg, PA 17108-1166
,I':
"
,
IN THE COURT OF COMMON PLEAS OF ADAMS COUNTY, PENNSYLVANIA
CIVIL ACTION
PNC BANK, NATIONAL ASSOCIATION,
PLAINTIFF
: DOCKET No. 05 - S - 73
vs.
: MORTGAGE FORECLOSURE
: SUMMARY JUDGMENT MOTION
EDWARD J. ABENDSCHElN,
DEFENDANT
: PREVIOUSLY ASSIGNED TO: J. GEORGE
NOTICE TO PLEAD
To: Edward J. Abendschein, Defendant,
You are hereby notified to file a written response to the enclosed Plaintiff's Motion for
Summary Judgment 'within thirty (30) days from service hereof or a judgment may be entered
against you.
Respectfully submitted,
SAlDIS, SHUFF, FLOWER & LINDSAY
Date: I l / ).. ..., /.~ ..(
By:
Geo e uff squire, ID #24848
Matthew J. Es man, Esquire ID #72655
2109 Market treet, Camp Hill, PA 17011
(717) 737-3405 (fax) 737-3407
Attorneys for PNC Bank, National Association
..
IN THE COURT OF COMMON PLEAS OF ADAMS COUNTY, PENNSYLVANIA
CIVIL ACTION
PNC BANK, NATIONAL ASSOCIATION,
PLAINTIFF
: DOCKET No. 05 - S - 73
vs.
: MORTGAGE FORECLOSURE
: SUMMARY JUDGMENT MOTION
EDWARD J. ABENDSCHEIN,
DEFENDANT
: PREVIOUSLY ASSIGNED TO: J. GEORGE
PLAINTIFF, PNC'S
MOTION FOR SUMMARY JUDGMENT
The Plaintiff, PNC Bank, National Association, ("PNC") by its attorneys, Saidis, Shuff,
Flower & Lindsay, moves this Court, pursuant to Pa. R. Civ. P., Rule 1035.1 el seq., for the entry
of summary judgment in favor of Plaintiff, PNC, for the relief requested in Plaintiffs Complaint,
and avers in support thereof the following:
Procedural History
I. Plaintiff filed its Complaint in Mortgage Foreclosure against Edward J. Abendschein
(the "Defendant") to the above-captioned matter on January 19,2005.
2. On or about February 28, 2005, the Defendant filed a responsive pleading seeking
to assert various affirmative defenses and counterclaims (the "Defendant's Answer").
3. On May 23, 2005, PNC filed Preliminary Objections consisting primarily of
demurrers and challenges to the Defendant's compliance with the rules of pleading.
4. By Memorandwn Opinion and Order of this Court dated July 28, 2005, PNC's
Preliminary Objections were granted in part and denied in part, and the Defendant was "granted
the opportunity to amend [his] pleading provided that the counterclaims properly raise specific
and non-frivolous causes of action related to the mortgage transaction." (Order, Page 7.)
,~
,"
5. On or about August 25, 2005, Defendant filed an amended responsive pleading
captioned "Answer and Counterclaims" (the "Defendant's Amended Answer" hereinafter).
6. Contemporaneously with this Motion for Summary Judgment, PNC filed its
Reply to Defendant's Amended Answer (the "Reply").
7. PNC's Reply contains neither new matter nor counterclaim and, therefore, as of
the date of this Motion, the pleadings are closed.
Plaintiff has alleged, and Defendant has admitted or failed to deny,
all of the elements of a cause of action in morteaee foreclosure
8. The Defendant's Answer either admits, or elects not to deny, all material allegations
set forth in the Plaintiff s Complaint.
9. Particularly, the Defendant admits in Paragraph 3 of his Amended Answer that he
signed the "iote and the Mortgage attached to the Complaint.
10. The Defendant likewise admits in Paragraph 3 of his Amended Answer that he is
the sole owner of the described Property.
11. In Paragraph 7 of his Amended Answer, Defendant does not deny that PNC has
made demand for payment in full.
12. In Paragraph 7 of his Amended Answer, Defendant does not deny that he has
failed or refused to remit full payment under the terms and conditions of the Loan Documents.
13. The Defendant challenges only the legal sufficiency, rather than the occurrence,
of the conditions precedent to the entry of a judgment in foreclosure in Paragraph 7 of default,
notice of acceleration, and demand for payment in full.
,
14. Plaintiff has averred that the failure to pay the full amount of the Loan when it
was demanded constitutes an event of default under the mortgage, for which reason the mortgage
foreclosure action was instituted, including the demand for attorneys fees. Pursuant to Rule
1035.4, attached hereto and incorporated herein by reference as Exhibit "I" is an affidavit in
support of the allegations contained in Paragraph 8 of Plaintiff's Complaint.
15. Plaintiff believes and therefore avers that there are no genuine issues of any
material fact as to a necessary element of the cause of action set forth in Plaintiff's Complaint in
which could be established by additional discovery or expert report which would require any
issue to be submitted to a jury.
16. Plaintiff asserts that it has established all of the elements of a cause of action in
mortgage foreclosure, and PNC is therefore entitled to summary judgment as a matter of law.
Defendant has failed to assert anv valid Affirmative Defense to the Cause of Action
17. The Defendant appears to assert an affirmative defense that he paid eight months
of installments in advance. See Defendant's Amended Answer, Paragraphs 7(a), 8(d), and 8(e).
See also Defendant's Answer, Paragraphs 7(b), 7(d) arId 8(d).
18. However, the Defendant also acknowledges the following provision in the Note
under the paragraph headed "Cost of Prepayment":
Early payments will not, unless agreed to by Lender in writing, relieve Borrower
of Borrower's obligation to continue to make payments under the payment schedule.
Rather, they will reduce the principal balance due and may result in Borrower making
fewer payments.
Defendant's Amended Answer, Paragraph 7(a) and Plaintiff's Complaint, Exhibit "B."
19. The Defendant likewise appears to assert a right to cure the default and reinstate
the terms and conditions of the Loan Documents. See Defendant's Amended Answer, Paragraph
7(c).
20. Pursuant to the terms and conditions of the Loan Documents, upon default and
notice of acceleration, the Defendant is required to pay all amounts due under the Loan
Documents in full, without right of reinstatement.
21. The matter, moreover, is not governed by the provisions of "Act 6" (nor of "Act
91") because the property sought to be foreclosed upon is a commercial property, and not a
"residential mortgage" as that term is defined under "Act 6" and there exists no statutory right of
reinstatement.
22. Moreover, the Defendant failed to admit or deny the specific averment contained
in Paragraph 11 of the Complaint that Act 6 is inapplicable at bar.
?'
_.J.
Pa. R.C.P. No. 1029('0) provides that "averments m a pleading to which a
responSIVe pleading IS required are admitted when not denied specifically or by necessary
implication."
24. Plaintiff believes and therefore avers that the Defendant's averments that he had
paid the Loan in advance or that he has some right of reinstatement do not suffice to avoid the
granting of Plaintiff's motion for summary judgment.
25. Plaintiff submits that even if all of the factual allegations contained in
Defendant's New Matter were admitted or resolved in Defendants' favor, the Plaintiff would
nonetheless be entitled to summary judgment insofar as there are no material facts alleged
therein which would support an affirmative defense to the cause of action.
.~
26. Plaintiff believes and therefore avers that there are no genuine issues of any
material fact as to a necessary element of any defense set forth in Defendant's Amended Answer
which could be established by additional discovery or expert report which would require any
issue to be submitted to a jury.
27. Plaintiff believes and therefore avers that the Defendant has the burden of proof
with respect to any affirmative defense set forth in a New Matter and has failed to produce
evidence of facts essential to any such defense which in a jury trial would require the issues to be
submitted to a jury.
28. Plaintiff asserts that the Defendant has failed to establish any valid affirmative
defense to the Plaintiffs cause of action in mortgage foreclosure, and PNC is therefore entitled
to summary judgment as a matter of law.
Defendant has failed to assert any valid Counterclaim
29. PNC demurs to the each of the Defendant's Counterclaims as follows, with
reference again being made to this Court's Order of July 28, 2005, where the Defendant was
cautioned "that the evaluation of pleadings and defenses will be under the standard normally
applicable to a licensed attorney." (Order of 1. George at p. 7.)
30. Defendant ostensibly asserts a cause of action for breach of a unilateral contract
in Count 1 ofthe Defendant's Amended Answer.
31. Defendant fails to allege what PNC was to give or perform in exchange for
Defendant's "purchase [of] services exclusively from Plaintiff and '" using financing from
Plaintiff."
,.
.<
32. Defendant does not allege that PNC failed to perform whatever its obligation was
to have been.
33. Defendant does not specify how PNC's ostensible failure damaged the Defendant.
34. Plaintiff therefore avers that the Defendant has failed to allege facts necessary to
support all of the elements of a claim for breach of contract in his First Count counterclaim,
captioned Breach of a Unilateral Contract, and PNC is therefore entitled to summary judgment as
a matter of law.
35. Defendant ostensibly asserts a cause of action for breach of a quasi-contract in
Counts 2 through 4 of the Defendant's Amended Answer.
36. An express contract already exists to define the parameters of the parties'
respective duties and, as such, equitable remedies of unjust enrichment or quasi-contract are not
permitted.
37. Moreover, the Defendant fails to allege what PNC was to give or perform in
exchange for Defendant's supposed obligations.
38. Defendant does not allege that PNC failed to perform whatever its obligation was
to have been.
39. Defendant does not specify how PNC's ostensible failure damaged the Defendant.
40. Plaintiff therefore avers that the Defendant has failed to allege facts necessary to
support all of the elements of a claim for breach of contract in Counts two, three or four of his
counterclaim, alternatively captioned Intentional Breach of a Quasi-Contract or Negligent
Breach of a Quasi-Contract, and PNC is therefore entitled to summary judgment as a matter of
law.
41. As may be seen from the Affidavit filed in support hereof, the amount due PNC
from Defendant changes over time, even if the delay in payment is due to actions of the
Defendant. Prepayment penalties may increase or even decrease, interest rates may vary,
unanticipated expenses may be incurred, and post-complaint payments may be made by or on
behalf of the Defendant, all of which effect the actual amount due PNC. It is submitted that the
entry of judgment in the amount demanded in the Complaint is appropriate, presuming liability is
established, and a Petition to reassess damages filed prior to execution or satisfaction of such
judgment.
WHEREFORE, Plaintiff, PNC Bank, National Association, restates its demand for
judgment against the Defendant, Edward J. Abendschein, in the amount of $653,605.68, plus
interest at the rate of $210.35 per day, plus continuing attomey fees, expenses and charges, from
January 11,2005, through the date of payment, including on and after the date of entry of judgment
on the Complaint, and costs, and for foreclosure and sale of the mortgaged property, and such other
relief as the Court deems just and equitable.
Respectfully submitted,
SAIDIS, SHUFF, FLOWER & LINDSAY
Date:
12.)11/01
By:
Ge me uff squire, ID #24848
Ma ew J. Eshe an, Esquire, ID #72655
2 I 09 Market S eet, Camp Hill, P A 170 II
(717) 737-3405 (fax) 737-3407
Attorneys for PNC Bank, National Association
,',.!
IN THE COURT OF COMMON PLEAS OF ADAMS COUNTY, PENNSYL V ANlA
CIVIL ACTION
PNC BANK, NATIONAL ASSOCIATION,
PLAINTIFF
: DOCKET No. 05 - S - 73
vs.
: MORTGAGE FORECLOSURE
: SUMMARY JUDGMENT MOTION
EDWARD J. ABENDSCHEIN,
DEFENDA.NT
: PREVIOUSLY ASSIGNED TO: J. GEORGE
CERTIFICATE OF SERVICE
AND NOW, this J 7 h day of J)t'U"" ~.J I 2005, I, Matthew J. Eshelman, Esquire, of
the firm of Saidis, Shuff, Flower and Lindsay, hereby certify that I this day served a true and correct
copy ofPNC's Motion for Summary Judgment upon the parties listed below via United States Mail,
postage prepaid, addressed as follows:
Edward J. Abendschein, Pro Se
88 Pollard Road
Mountain Lakes, NJ 07046
Edward J. Abendschein
c/o John M. Crabbs, Esq.
202 Broadway
Hanover, PAl 7331
Respectfully submitted,
SAlDlS, S
& LINDSAY
Date: /2.-/1-1/0)"
By:
Geoffrey S. Shuff, Esquire, ID #24848
Matthew 1. Eshelman, Esquire, ID #72655
2 I 09 Market Street, Camp Hill, PAl 70 I I
(717) 737-3405 (fax) 737-3407
Attorneys for PNC Bank, National Association
IN THE COURT OF COMMON PLEAS OF ADAMS COUNTY, PENNSYLVANIA
PNC BANK, NATIONAL ASSOCIATION,
PLAINTIFF
: IN THE COURT OF COMMON PLEAS
: ADAMS COUNTY, PENNSYLVANIA
v.
: NO. 05-S-73
EDWARD J. ABENDSCHEIN,
DEFENDANT
: CIVIL ACTION - LAW & EQU1TY
: Affidavit Partially in Support of and Partially
in Opposition to Plaintiff's Motion for Summary
Judgment
Defendant Edward J. Abendschein, appearing pro se, says:
I. I have paid the following amounts to PNC Bank in fulfillment of my obligations one
the note and mortgage which is the subject of this litigation:
Payment Date Payment Amount
April 14, 2001 $7,215.
June 14,2001 "
.....-;-;
July 17, 2001 " '""
co
August 16,2001 " --1\ -
.-.;"\
August 21, 2001 " -
----
September 21,2001 " N I
...~~
October 21,2001 " 1-'.
....-...0
November 21,2001 " --
December 21,2001 " ::--
=
January 21,2002 " e;-,
February 21,2002 "
March 21, 2002 "
April 21, 2002 "
May 21, 2002 "
June 21, 2002 "
July 21, 2002 "
August 21, 2002 "
September 21, 2002 "
October 21, 2002 "
November 21, 2002 "
December 21, 2002 "
January 21, 2003 "
February 14,2003 80,000.00
March 21, 2003 7,215.33
April 21, 2003 "
May21,2003 "
June 21, 2003 "
July 21,2003 "
August 21, 2003 "
September 21, 2003 "
October 21, 2003 "
January 7, 2004 15,000.00
January 21, 2004 7,500.00
March 9, 2004 "
March 25, 2004 "
April 28, 2004 * 10,000.00
June 1,2004 * "
July 1, 2004 * "
August 1, 2004 * "
September 1, 2004 * "
October 1, 2004 * 10,500.00
November 1, 2004 * 275.00
2. The total of these payments is $401,950.23
*DATES ARE APPROXIMATE-
exact dates will be provided
3. On November 14,2005, I paid PNC Bank $60,000 toward my obligations under said
note and mortgage.
4. On or about December 29,2005, PNC Bank received approximately $505,000 from
New Way Packaging Machinery on its guarantee of the note which is the subject of this
litigation.
5. With the documents included herein, I am forwarding the sum of$57,837.19, which I
believe pays my obligation to PNC Bank, except for any amount due for the following
incidents.
6. On or about January 15,2003, the branch manager of the Mountain Lakes, New Jersey
branch ofPNC Bank noticed that I had accumulated nearly $100,000 in my personal
checking account. She offered to move all or part of that money to CD's, annuities or
other investments to increase the yield on the funds.
7. I explained that my then-wife Deborah had filed suit for divorce in Essex County,
New Jersey in October 2002 and that I wanted to stay liquid.
8. At that meeting, at a later meeting on or about February 1, 2003 and finally at a third
meeting on or about February 15, 2003, the branch manager and I discussed those options
plus the option of protecting PNC Bank during the divorce proceedings by prepaying a
number of months on the note and mortgage that is the subject of this litigation.
9. At no time did the branch manager inform me that I would need wrillen permission of
the Bank to preserve my right to skip future payments and I was not aware of that
requirement at that time.
10. Based on my conversations with this officer who was one person designated by
Plaintiff to act on its behalf, I made a prepayment of$80,000 on the loan and mortgage,
or approximately 10-1/2 months of prepayment. It was my intention to make a further
payment so that I would protect the Bank during the pendency of the proceedings for up
to one year.
II. The branch manager assured me that I could skip equivalent payments, although she
never put that in writing.
12. On or about March 2S, 2003 or about a month and a halflater, Mr. Kimmel appeared
at my office and informed me that he was taking over administration of the note and
mortgage that is the subject of this litigation. At that meeting, I told him of my
prepayment and he informed me that I would probably need written permission, but that
he would take care of it.
13. He never did, despite my repeated telephone calls and at least one written message in
July 2003. As I will testify below, this was one of three items that Mr. Kimmel failed to
take care of between March 2003 and October 2004 and of another matter that arose in
July 2003.
14. In November 2003 and December 2003, I skipped payments. Mr. Kimmel called me
on or about December 23, 2003 and asked about the payments. I reminded him about our
conversation and he indicated that he hadn't taken up the matter with his superiors (nor
had he taken up the other three issues with them). I agreed to pay $15,000 on my return
to New Jersey in January 2004, a payment that is reflected in paragraph I, supra.
15. A few days later, I had a preliminary divorce agreement which was confirmed by the
Essex County, New Jersey court in February 2004. The agreement allowed me to
continue making payments and I began making larger monthly payments.
16. Despite more phone calls, Mr. Kimmel took no action in getting the written
permission nor in the other three matters discussed below.
17. In October, 2004, I told Mr. Kimmel I was taking my option to forego payments so
that he would have to take all four matters to his superiors, but that I was amenable to
continuing payments if the other two matters were resolved.
IS. Instead Mr. Kimmel filed a notice of default, without specifying that the basis of the
default was the lack of written permission to skip payments arising from the previous
prepayment (despite the oral assurances of the branch manager). The Court could
certainly conclude that Mr. Kimmel was deliberately hiding the reason for the default in
hopes of hiding his past failures to broach that issue with his superiors as well as the
other three issues discussed below.
19. When it became clear to me in May 2005 that it was the lack of written permission to
skip payments that was the basis of the default, I offered to cure the default, twice
offering 16 checks of at least $7215.33 to complete my obligation to make 59 monthly
payments.
.
20. Plaintiff was obligated to accept that proffer since it had either deliberately or
unwittingly misled me about the basis of the default in its default notice. I cured the
default in a reasonable time upon being accurately apprised of its true nature.
21. At the meeting on March 28, 2003, Defendant also raised two other issues: a) the
defalcation of $1 00,030.00 from the New Way Packaging Machinery Retirement Income
Trust, that was the subject of Abendschein, Trustee v. PNC Bank; and b) whether PNC
Bank would waive the prepayment penalty if Defendant found another Bank to finance
the balance.
22. As noted above, I also objected to raising the interest rate from 8% to 13% in July
2003.
23. This came about again because of the divorce petition filed by my ex-wife and my
cross-petition. My wife filed in September 30, 2002 and because the corporate fiscal year
ended on September 30,2002, the parties and the Essex County, New Jersey court
concluded that a year-end statement would be the best basis for deciding the value of
NWI, Inc. in the marital estate. The date of filing in New Jersey is the appraisal date for
closely-held businesses.
24. The Court appointed forensic accountants to work with me on preparing the
September 30, 2002 statement, but it was not ready in July, 2002 as requested by Mr.
Kimmel.
25. Mr. Dennis Moul, my long-time loan officer had told me that statements ofNWI Inc.
would not be necessary for the life of this loan and based on that representation, I signed
the loan agreement. Because of this representation ofMr. Moul, I had made little effort
to move along the preparation of the September 30,2002 statement ofNWI, Inc. until
April or May 2003, since the corporation owed no corporate income taxes and I didn't
think Plaintiff was requiring them until Mr. Kimmel requested them in that time period.
26. I provided all the financial information that Mr. Kimmel requested except the NWI
statements in July 2003 as requested, but Mr. Kimmel filed a notice of default anyway. I
objected in writing and never received a response, except the usual oral comments that he
would take it up with his superiors.
28. After receiving the financial statement for NWI Inc. for September 30, 2002, Mr.
Kimmel realized it had no information that was useful in the administration of the loan,
just as Mr. Moul and I had realized before entering into the transaction. As such, he
never asked for the September 30, 2003 statement, the September 30, 2004 statement or
the September 30, 2005 statement.
29. Giving Plaintiff $75,000 for this pitifully small three month delay in a document that
has no value was not the intent of the parties is not within the intent of the contract, is not
equitable and would constitute a windfall for Plaintiff.
'.
30. When Mr. Kimmel hadn't taken up the pension defalcation with his superiors by
October, 2004, I stopped making payments in order that he would be forced to confront
his superiors primarily with the pension defalcation and hopefully after that the interest
rate, the written permission to skip payments and waiving the prepayment penalty. In
May 2005, when I understood the reason for his default notice, I offered to cure the
default in a reasonable time by offering 16 checks in the total amount of$140,000. Any
expenses accrued by Plaintiff arose from the unclear notice of default annexed to the
Complaint and its failure to accept those checks.
31. Any expenses incurred by Plaintiff as a result of this series of events were clearly to
be paid by Plaintiff within the meaning the note and mortgage that is the subject of this
litigation. My small part in not realizing that there was a contract term that required
written permission to prepay and skip when an officer of Plaintiff authorized to accept
such a prepayment also failed to inform me is worth no more than $100.
VERIFICATION
I hereby verify that the statements in this Complaint are true and correct to the
best of my knowledge, information and belief. I understand that false statements
are made subject to the penalties of 18P.A.C.S.A Section 4904 relating to
unsworn falsification to authorities.
Date: ~J (1 }b 1
ekYin
ro Se
. .
DEFENDANT'S ARGUMENT PARTIALLY IN SUPPORT OF
AND PARTIALLY IN OPPOSTION TO THE
MOTION FOR SUMMARY JUDGMENT OF PLAINTIFF
Point!.
Plaintiff errs when it says the pleadings have been closed; it is answering pleadings that
have never been accepted by this Court.
Point 2.
Plaintiff is seeking a windfall. The contract calls for 59 payments of$7215.33 and one
payment of$599,082.95 by next Tuesday, February 21,2006 and it has received all such
payments ahead of schedule. Defendant has made these payments in full and on time.
Point 3.
Plaintiff has exaggerated a technical violation of the written agreements annexed to the
Complaint. It seeks nearly $75,000 for a three month delay in receiving financial data on
a guarantor, a delay occasioned by a court-ordered delay in another case. The fair
interpretation ofthe contract calls for imposition of a small administrative fee of perhaps
$100 for Plaintiffs costs to understand and implement this unusual but foreseeable event.
Point 4.
Plaintiff has further exaggerated a second technical violation of the written agreement.
Plaintiff unreasonably withheld written permission for Defendant to prepay its monthly
obligations of $7,215.33 and later skip payments, although an officer of Plaintiff gave
such oral permission for the largest prepayment. It seeks reimbursement of nearly
$75,000 of avoidable costs for its failure, but the equitable interpretation of the contract
calls for imposition ofa small administrative fee of perhaps $100 for Plaintiffs costs to
understand and implement this unusual but foreseeable event.
t:~-:l
r,,:
..
c::.
L. .
IN THE COURT OF COMMON PLEAS OF ADAMS COUNTY, PENNSYLVANIA
PNC BANK, NATIONAL ASSOCIATION,
PLAINTIFF
: IN THE COURT OF COMMON PLEAS
ADAMS COUNTY, PENNSYLVANIA
v.
NO. 05-S-73
EDWARD J. ABENDSCHEIN,
DEFENDANT
CIVIL ACTION - LAW & EQUITY
Memorandum in Support of the Annexed
Order, Partially in Support of and Partially
In Opposition to Plaintiffs Motion for Summary
Judgment.
Defendant, Edward J. Abendschein, appearing pro se, asks this Court to sign the annexed
order:
1. Granting Plaintiffs Motion for Summary Judgment to the extent that Plaintiff is owed
59 monthly payments of$7,215.33 ending January 21,2006 or a total of$425,704.47 and
a final payment of $599,082.95 due Tuesday, February 21, 2006. The Court does not
need to decide at this time if these moneys are due from passage oftime or from a default
of the Defendant, which is a matter offact and not of law.
2. Granting Plaintiffs Motion to the extent it alleges that Defendant was asked to
provide a September 30, 2002 financial statement ofNWI, Inc. by July I, 2003 and
Defendant did not provide so until October 2003. Defendant admits the delay but
contends that under the circumstances the proposed date was too rigid and that because
the requested information had little value, Plaintiff suffered little or no damage.
3. Granting Plaintiffs Motion to the extent it alleges that Defendant stopped making
payments in full from October 21,2004 until November 21, 2005 without procuring the
written permission of Plaintiff. Prior to making the largest prepayment, Defendant
procured oral permission from an officer of Plaintiff empowered to accept such
payments, but never got the permission in writing.
4. Denying the balance of Plaintiffs Motion. Point 1 (pars. Uto 1.15, infra) deals with
the bulk of the reason for denying the rest of Plaintiffs motion.
5. Setting a Hearing Date of November 1, 2006 to determine the following issues offact:
the date and amount of payments made by Defendant to Plaintiff pursuant to the note and
mortgage underlying this litigation and annexed to the Complaint; the correct amount of
compensation due to Plaintiff from Defendant arising from the delay in providing a
financial statement ofNWI, Inc. referred to above from July 2003 to October 2003; and
the correct amount of compensation due to Plaintiff from Defendant for his failure to
make payments from October 21, 2004 until November 21, 2004 without first receiving
written permission from Plaintiff; and setting a cut-off date for discovery of September 1,
2006; and setting a cut-off date for filing pre-trial motions of September 15, 2006.
. " .
6. Defendant needs this extended time to examine at least three employees of the
corporate loan division, at least one of whom no longer works for Plaintiff; at least one
member of the corporate credit division; and an undetermined number of supervisory
personnel for those four individuals. Seven months for discovery of that magnitude is not
unreasonable.
Point 1.
STATE OF THE CASE
1.1 In January 2005, Edward J. Abendschein, as trustee of the New Way Packaging
Machinery Retirement Income Trust (the "Trust"), filed suit in Adams County to recover
$100,030.00 that PlaintiffPNC Bank had removed from the trust when it was a custodian
of funds.
1.2 In February 2005, Plaintiff filed the instant suit against Edward J. Abendschein in his
personal capacity.
1.3 In March 2005, Defendant answered, contesting the amounts demanded in the suit.
1.4 Defendant also asked that he not be required to make further payments on the note
until the Court heard his claim that the suit was motivated solely by his actions in
protecting the Trust and not by any breach of contract.
1.5 Defendant also filed counterclaims and asked that recovery by Plaintiff be delayed
until those claims could be heard.
1.6 In May 2005, Plaintiff filed suit in Cumberland County against Defendant and two
corporate guarantors owned or controlled by Defendant. The suit against one corporate
guarantor has been discontinued.
1.7 A judgment has been entered against Defendant and the other corporate guarantor as
a result of procedural errors by those parties.
1.8 In June 2005, after extensive settlement discussions between the parties ended,
Plaintiff filed a motion to strike the Answer and Counterclaims of Defendant.
1.9 In August 2005, the Court granted the motion in part and denied it in part.
1.10 In August 2005, Defendant put a rule on Plaintiff to file an amended answer and
counterclaim and to force Plaintiff to consolidate all cases referred to above.
1.11 In September 2005, the Court in the Abendschein, Trustee case ruled that federal
law preempted the state action and dismissed the case.
. . , )
1.12 Also in September 2005, the Court rejected the rule proposed by Defendant to file
an amended answer and counterclaim and set September 30, 2005 for oral argument on
the motion to consolidate.
1.13 Defendant did not receive actual notice of these Orders by the Court until just after
12 noon on Monday, October 3, 2005. They were placed in his mailbox with some other
mail that had been held by the Post Office and not delivered with the rest of the held mail
on September 23, 2005, when the hold order had expired.
1.14 Defendant concluded from the orders in the two cases that the ERISA claims, the
fiduciary indemnity claims and the lender liability claims were to be litigated in federal
court; and the instant case would be confined to the single issue of the amount of money
Defendant owes Plaintiff under the note and mortgage. As such, Plaintiffs proffered
Reply to the rejected Amended Answer is superfluous and to the extent its Motion for
Summary Judgment relies on either that document or Defendant's proffered Amended
Answer and Counterclaim, it should be denied.
1.15 If this is not the case, I ask the Court to allow me to make any additional filings to
put the issue of each amount of money claimed by Plaintiff at issue.
Point 2.
DEFENDANT HAS MADE PAYMENT IN FULL AT THIS TIME
2.1 The Court can and should reject the Affidavit ofMr. Kimmel annexed to the instant
Motion for Summary Judgment ("Plaintiffs Motion"). The totals reflect a charge of
approximately $75,000 for a financial statement that was demanded in July 2003 and not
produced until October 2003; and approximately $75,000 because Plaintiff unreasonably
withheld written acceptance of a prepayment in February 2003 after an officer of Plaintiff
gave oral acceptance of that amount. It mayor may not reflect an earnings credit due to
Defendant in the amount of approximately $13,000 for early payment.
2.2 Instead, the Court can and should follow the note and mortgage attached to the
Complaint that calls for 59 monthly payments by Defendant to Plaintiff of $7,215.33
ending January 21,2006 or a total of $425,704.47 and a final payment of $599,082.95
due next Tuesday, February 21,2006.
2.3 As Defendant's annexed Affidavit of Payments shows (pars. 1-6), Plaintiffreceived
total payments of$401,950.23 by November 21,2004 or nearly 15 months ago. That
was just $23,754.24 than Defendant was required to pay by last month, or fourteen
months later. Plaintiff received $60,000 more by November 21, 2005, nearly 3 months
ago, which completed payment of the monthly amounts due by last month (January 2006)
and ran up a credit of$36,245.76 toward the final payment due on February 21,2006
.
. .
2.4 Plaintiffreceived $505,000 more by last month's deadline (January 21,2006) and
with a copy of these papers, Defendant is including the final payment of$57,837.19 due
on February 21,2006 or this coming Tuesday.
2.5 The amounts mentioned in paragraph 2.4 (a total of$562,837.19) are not included in
the Affidavit ofMr. Kimmel annexed to Plaintiffs Motion and in any case, reduce the
amount due to Plaintiff on this motion.
2.6 Defendant is also entitled to an earnings credit of approximately $13,000 for early
payment of his obligations to Defendant that may not be included in the figures contained
in the Affidavit of Mr. Kimmel annexed to Plaintiffs Motion.
2.7 The Court should set an evidentiary hearing on the date and amount of all payments
received by Plaintiff and any earnings credit owed to Defendant by Plaintiff.
Point 3
THE SEPTEMBER 30, 2002 FINANCIAL STATEMENT OF NWI, Inc.
WAS OF LITTLE VALUE TO PLAINTIFF AND A REASONABLE DELAY OF
SEVERAL MONTHS IN RECEIVING IT HAD NO DELETERIOUS EFFECT ON
PLAINTIFF
3.1 Mr. Kimmel's Affidavit does not reveal to the Court the fact that from July 2003 until
the present, Plaintiff has been billing Defendant approximately $1,500 per month (or a
total of approximately $75,000) because Defendant was unable to produce a financial
statement ofNWI, Inc. for Mr. Kimmel in July 2003. The unusual circumstances of this
inability is presented in the annexed Affidavit of Defendant in Support in Part and in
Opposition in Part to Motion for Summary Judgment, paragraphs 22 to 31.
3.2 Defendant relied on the oral representation of Plaintiffs Vice-President Dennis Moul
who negotiated this loan, that Defendant would not have to produce such statements
during the life of the loan, since the sole reason for the guarantee ofNWI, Inc. was to
provide a legal basis for the retention of Plaintiffs security interest in an Equitable Life
Insurance policy on the life of Defendant.
3.3 It is customary in the industry for a loan officer to provide a commitment letter
detailing the financial information required by the Bank and Mr. Moul provided no such
letter in this case.
3.4 Nonetheless, after objecting to providing those statements Defendant provided them.
The conduct ofMr. Kimmel in not asking for further statements ofNWI speaks volumes
of their limited utility in the administration of this loan and mortgage and his recent
dismissal of any legal action against NWI, Inc. on its guarantee shows that its guarantee
was pro forma and had no economic vitality.
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3.5 As such, the Court should set this matter down for an evidentiary proceeding at
which time Defendant will argue that the cost to Plaintiff of this delay was no more than
$100, an amount being forwarded to Plaintiffs counsel with these papers.
Point 4
DEFENDANT FAILED TO GOT ORAL PERMISSION TO PREP A Y PAYMENTS
AND THEN SKIP PAYMENTS. HE FURTHER SOUGHT WRITTEN PERMISSION,
WHICH W AS UNREASONABLY WITHHELD. DEFENDANT OFFERED TO CURE
THE NOTICE OF DEF AUL T ANNEXED TO THE COMPLAINT WITHIN A
REASONABLE PERIOD OF TIME.
4.1 Plaintiff seeks approximately $75,000 in reimbursement for expenses arising from an
alleged default.
4.1 Defendant's annexed Affidavit, paragraphs 6 to 21 outlines the issues of fact
surrounding the alleged default. The Court doesn't need to decide the factual issue of a
default in order to rule that Defendant owes Plaintiff 59 payments of$7215.33 and one
payment of$599,082.95 by next Tuesday, February 21,2006 and Defendant encourages
the Court to make such a filing.
4.2 It is clear from Defendant's Affidavit that if true, Defendant has made every
reasonable effort to comply with the boilerplate language of this note and mortgage and
that the securing oral permission to prepay some payments and skip others was sufficient;
and/or that written permission was unreasonably withheld by Plaintiff; and/or that the
notice of default was unclear and when it was clarified, Defendant made a timely offer of
cure that was rejected by Plaintiff; and that in any case, the fair value of the costs
incurred by Plaintiff to be reimbursed by Defendant is $100, which is being forward to
counsel for Plaintiff with a copy of these papers.
4.3 Defendant asks the Court to set this matter down for an evidentiary hearing.
Respectfully Submitted,
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dward J. Abe dschein, Defendant Pro Se
88 Pollard Roa
Mountain Lakes, NJ 07046
717-968-2398
biged48@yahoo.com
.. " .. .
IN THE COURT OF COMMON PLEAS OF ADAMS COUNTY, PENNSYLVANIA
PNC BANK, NA nONAL ASSOCIA nON,
PLAINTIFF
: IN THE COURT OF COMMON PLEAS
ADAMS COUNTY, PENNSYLVANIA
v.
NO. 05-S-73
EDWARD J. ABENDSCHEIN,
DEFENDANT
CIVIL ACTION - LAW & EQUITY
ORDER
Granting Plaintiffs Motion for Summary Judgment to the extent that Plaintiff is
owed 59 monthly payments of$7,215.33 ending January 21,2006 or a total of
$425,704.47 and a final payment of $599,082.95 due Tuesday, February 21,2006.
Granting Plaintiffs Motion to the extent it alleges that Defendant was asked to
provide a September 30, 2002 financial statement ofNWI, Inc. by July I, 2003 and
Defendant did not provide so until October 2003; and
Granting Plaintiffs Motion to the extent it alleges that Defendant stopped making
payments in full from October 21, 2004 until November 21, 2005 without procuring the
written permission of Plaintiff; and
Denying the balance of Plaintiffs Motion; and
Setting a Hearing Date of November 1, 2006 to determine the following issues of
fact: the date and amount of payments made by Defendant to Plaintiff pursuant to the
note and mortgage underlying this litigation and annexed to the Complaint; the correct
amount of compensation due to Plaintiff from Defendant arising from the delay in
providing a financial statement ofNWI, Inc. referred to above from July 2003 to October
2003; and the correct amount of compensation due to Plaintiff from Defendant for his
failure to make payments from October 21, 2004 until November 21, 2004 without first
receiving written permission from Plaintiff; and
Setting a cut-off date for discovery of September I, 2006; and
Setting a cut-off date for filing pre-trial motions of September 15, 2006.
Signed:
, J.
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PNC BANK, NATIONAL
ASSOCIATION,
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
NWI, INC.,
DEFENDANT
05-2415 CIVIL TERM
ORDER OF COURT
AND NOW, this
'ZO
day of February, 2006, a Rule is entered
against PNC Bank National Association to show cause why the relief requested herein
should not be granted. Rule returnable ten (10) days after service. Any answer filed
shall be forwarded by the Prothonotary to chambers.
By the Court,
Edgar B. Bayley, J. '1
Geoffrey S. Shuff, Esquire
For PNC Bank, National Association
John M. Crabbs, Esquire
For Defendant
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PNC BANK, NATIONAL ASSOCIATION,: IN THE COURT OF COMMON PLEAS,
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
vs.
CASE NO. 05-2415
NWI, INC.,
Defendant
CIVIL ACTION - LAW
PNC BANK, NATIONAL ASSOCIATION'S RESPONSE IN OPPOSITION TO NWI,
INC.'S REQUEST TO STAY EXECUTION
I. Admitted.
2. Admitted with clarification. The obligation was and still is secured by the
mortgage.
3. Admitted with clarification. The obligation was and still is secured by the
guaranties.
4. Admitted.
5. Admitted.
6. Admitted with clarification. PNC Bank, National Association ("PNC") provided
notice and properly served Mr. Abendschein, New Way Packaging, Inc. ("New Way") or NWI,
Inc. ("NWI") with the judgments confessed in favor of PNC in compliance with the
Pennsylvania Rules of Civil Procedure.
7. Admitted.
8. Denied. As plead by Mr. Abendschein in paragraph 6 of his Petition, Mr.
Abendschein, New Way and NWI (collectively the "Defendants") had actual and/or constructive
knowledge of the confessed judgments entered against them in favor of PNC.
9. Admitted.
10. Denied. NWl's Petition to Open had previously been stricken by the Court and
the subsequent Motion for reconsideration denied. The Orders denying the Petitions of New
Way and Mr. Abendschein do not refer to the exercise of the Court's equitable powers with
respect to appropriate amounts of the judgments. In fact, in a footnote to the Orders, the Court
stated,
"...If defendant, upon satisfaction, believes that the final changes then claimed
by plaintiff are excessive, it may petition to modity." (Citation omitted, emphasis
added.)
Accordingly, this Court has already dealt with the issue raised again by Abendschein in
this Petition.
11. Admitted.
12. Admitted.
13. Denied. PNC is without knowledge or information sufficient to form a belief as
to the accuracy of this allegation. PNC has not been served with any such Response, and PNC
was advised by the Adams County Prothonotary's office on two occasions after February 17,
2006, that the Prothonotary's office had no record of any such Response being filed by the
February 17, 2006, deadline.
14. Denied. Neither PNC nor its legal counsel has been served with any such
Response.
15. Denied.
16. Admitted. By way of further answer, PNC has had to initiate actions to collect
Mr. Abendschein's indebtedness to PNC because Mr. Abendschein has umeasonably refused to
acknowledge his obligation to pay the indebtedness.
17. Denied. PNC has not received the $57,837.15 referred to in paragraph 15 of the
Petition, and $499,901.30 said that PNC received as a result of the garnishment has not satisfied
Mr. Abendschein's indebtedness in full.
2
18. Denied. PNC only filed a motion for summary judgment in the Adams County
mortgage foreclosure action, and any judgment entered in favor ofPNC will not reveal the
current "full and total balance due" since said amount continually changes due to application of
funds received by PNC on account of the indebtedness and continuing interest, costs and
attorney fees. PNC has not obtained a judgment in the foreclosure action, and it is unknown
when, or even if, a judgment may be entered in PNC's favor, so PNC is not in a position to
execute upon the real estate in the foreclosure action.
19. Admitted in pari and Denied in part. PNC admits that payments on account of
Mr. Abendschein's indebtedness to PNC have not impaired the value of the real property in
question owned by Mr. Abendschein in Adams County, Pennsylvania. However, PNC denies
that Mr. Abendschein' s request for relief should be granted to stop any execution on the
judgments entered in Cumberland County, Pennsylvania, or that the value of Mr. Abendschein' s
real property is "many times" the amount still due and owing PNC. PNC is unaware of the
current condition ofMr. Abendschein's real property in Adams County, Pennsylvania, or
whether there are any environmental, zoning, title andlor other issues that might adversely affect
the value ofMr. Abendschein's real property.
20. Denied. The relationship between Abendschein and PNC is a relationship at law,
based upon the agreements and documents that evidence and/or secure Mr. Abendschein's
indebtedness to PNC. The loan documents executed for Mr. Abendschein's indebtedness to PNC
contain provisions authorizing PNC to exercise any and all rights and remedies provided in the
loan documents or at law or in equity at any time or times and in any manner or order as PNC
may elect, and contain provisions authorizing PNC to proceed against any obligor or the property
of any obligor without proceeding against any other obligor or the property of any other obligor,
3
and contain provisions pursuant to which Mr. Abendschein has waved any right to have property
marshaled. So long as PNC is acting in accordance with its loan documents, PNC is justified in
proceeding to collect its indebtedness in any lawful manner it elects. See Creeger Brick and
Building Supply Inc. v. Mid-State Bank and Trust Co., 560 A.2d 151, 154 (Pa. Super. 1989) (a
party cannot be liable for a breach of the implied covenant of good faith and fair dealing for
doing something that the contract expressly permits).
As has been previously represented to this Court, PNC is only going to collect the
indebtedness once, regardless of the number of obligors for the indebtedness and the number of
judgments PNC has obtained, and Mr. Abendschein is not in a positition even to attempt to direct
from what source payment is ultimately collected, particulary since he has filed and otherwise
taken frivolous, specious and meritless pleadings and actions in response to each of PNC's lawful
efforts to collect the indebtedness.
In addition, even ifthere were grounds for such a stay, which PNC denies, Mr.
Abendschein's current request for a stay is premature because PNC has not yet obtained a
judgment in its favor in the Adams County mortgage foreclosure proceeding, and he has not
shown sufficient grounds or posted a bond in compliance with Pa.R.C.P. No. 3121 in order to
properly stay any execution proceeding.
Finally, Mr. Abendschein has no right to claim relief when he alleges that he has
sufficient property to pay the judgment entered against him in favor of PNC. Mr. Abendschein
should voluntarily pay the judgment due and owing PNC rather than burden this Court with a
motion that has no basis in law or fact. Furthermore, Mr. Abendschein has failed to produce any
evidence that the value of his real property in Adams County, Pennsylvania is "many times" the
amount still due and owing PNC. Mr. Abendschein has caused his own harm by failing to pay
4
the entire amount of the judgment confessed in favor ofPNC and therefore does not qualify for
the relief sought in the Petition. See Home Owners' Loan Corp. v. Crouse, 30 A.2d 330, 332
(Pa.Super. 1943) ("[ c]ourts of equity will not relieve a party from the consequences of an error
due to his own ignorance or carelessness when there were available means which would have
enabled him to avoid the mistake if reasonable care had been exercised.").
WHEREFORE, PNC Bank, National Association requests this Court enter an Order
denying any request to stay execution in the above captioned case.
McNEES WALLACE & NURICK LLC
Date: March 8, 2006
By:
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layton W. vidson, Esquire
PA J.D. No.: 79139
Geoffrey S. Shuff, Esquire
PA J.D. No.: 24848
100 Pine Street, P.O. Box 1166
Harrisburg, PAl 71 08-1166
cdavidson@mwn.com
(717) 232-8000
Attorneys for PNC Bank, National Association
5
CERTIFICATE OF SERVICE
I, Clayton W. Davidson, Esquire, hereby certify that on March 8, 2006 a true and correct
copy of the foregoing Response was served by first class, U.S. mail, upon the following:
John M. Crabbs, Esquire
Crabbs & Crabbs
202 Broadway Street
Hanover, P A 17331
6
VERIFICATION
I, Eric Krimmel, Vice President ofPNC Bank, National Association, verify that I am
authorized to make this verification on behalf ofPNC Bank, National Association, and that the
facts contained in the foregoing pleading are true and correct to the best of my information,
knowledge and belief and that the same are made subject to the penalties of 18 Pa. C.S.A. S 4904
relating to unsworn falsification to authorities.
{.,~ ~
Eric Krimmel
Vice President
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