HomeMy WebLinkAbout05-2418
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION, : DOCKET NO. 05-2418 CIVIL TERM
Plaintiff
vs.
NEW WAY PACKAGING MACHINERY, : CONFESSION OF JUDGMENT
INC.,
Defendant : PREVIOUSLY ASSIGNED TO: N/A
PRAECIPE FOR JUDGMENT UPON ADMISSION
To the Prothonotary:
Please enter judgment in favor of the plaintiff against the garnishee, Bank of Hanover, in the
amount of $499,901.30, for the following property of the Defendant:
Any and all funds found in checking account 160180 in the name of New Way Packaging
Machinery, Inc. identified in the Supplemental Answer to Interrogatories filed by Bank of
Hanover, not to exceed $499,901.30.
Garnishee admitted in the Supplemental Answer to Interrogatories that it was in possession of
said property.
/i
Respectf,\11~
, I
SAIDIS, ~
Date:
tt Slo{
By:
tthew 1. Eshelman, Esquire
Supreme Court lD #72655
2109 Market Street
Camp Hill, PA 17011
(717) 737-3405
Attorney 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. 05-2418 CIVIL TERM
NEW WAY PACKAGING MACHINERY, CONFESSION OF JUDGMENT
INC.,
Defendant : PREVIOUSLY ASSIGNED TO: N/A
NOTICE OF JUDGMENT UPON ADMISSION
TO: Bank of Hanover
You are hereby notified that on ]).f'C' L~ , 2005 the following judgment has been
entered against you in the above captioned case:
Judgment in favor of PNC Bank, National Association, Plaintiff, and against Bank of
Hanover, Garnishee in the amount of$499,901.30. Judgment is entered pursuant to Pa. R.C.P.
3146(b), Garnishee having admitted in the Supplemental Answer to Interrogatories to Garnishee
that it was in possession of said property.
Dated: I;). / /J / D-5
6~~
Prothono ..
I hereby certifY that the proper person/entities to receive this notice under Pa. R.C.P. 236
are:
Bank of Hanover
One West Market Street
York, PA 17041
Glenn R. Davis, Esquire
LA TSHA, DAVIS, YOHE & MCKENNA, P.C.
1700 Bent Creek Boulevard, Suite 140
Mechanicsburg, P A 17050
"
tl:AY
Date:
1)1 r/os
By:
Matthew J. Eshelman, Esquire
Supreme Court ID #72655
2109 Market Street, Camp Hill, PA 17011
(717) 737-3405
Attorneys for PNC Bank, National
Association
1
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
c;u; L ~&.~
PNC BANK, NATIONAL ASSOCIATION, : DOCKET NO. DS -;)411
Plaintiff
vs.
NEW WAY PACKAGING MACHINERY, : CONFESSION OF JUDGMENT
INC.,
Defendant : PREVIOUSLY ASSIGNED TO: N/ 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 Plaintiff 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.
WER & LlNDSA Y
Date: May 9, 2005
ResPt. lly
SAID S SH
By:
Geoffrey S. Sh ff, Esquire ID #24848
Matthew J. Eshelman, Esquire ID #72655
2109 Market Street, Camp Hill, P A 170 II
(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. 05-2418 CIVIL TERM
: CONFESSION OF JUDGMENT
NEW WAY PACKAGING MACHINERY, INe.,
Defendant : PREVIOUSLY ASSIGNED TO: BAYLEY
IMPORTANT NOTICE
TO: Bank of Hanover, Garnishee
c/o Glenn R. Davis, Esquire
1700 Bent Creek Blvd, Ste 140
Mechanicsburg, PA 17050
Date of Notice:
November 21,2005
YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO TAKE ACTION REQUIRED
OF YOU IN THIS CASE. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE
OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A
HEARING, AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS
OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAYBE 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 17013
(717) 249-3166 or 1-800-990-9108
SAID
Respec
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Date: {I J
By:
Matthew J. E helman, Esquire ID #72655
2109 Market Street, Camp Hill, P A 17011
(717) 737-3405 (fax) 737-3407
Attorneys for Plaintiff, PNC Bank, N.A.
.
JOHN E. SLIKE
ROBERT C. SAlOIS
GEOFFREY S. SHUFF
JAMES D. FLOWER, JR.
CAROL J. LINDSAY
BRIAN C. CAFFREY
GEORGE F. DOUGLAS, III
MATTHEW J. ESHELMAN t
THOMAS E. FLOWER
MARYLOU MATAS
SUZANNE C. HIXENBAUGH
LAW OFFICES
SAIDIS, SHUFF, FLOWER & LINDSAY
A PROFESSIONAL CORPORATION
2109 MARKET STREET
CAMP HILL, PENNSYLVANIA 17011
TELEPHONE: (717) 737-3405
FACSIMILE: (717) 737-3407
www.ssfl-Iaw.com
CARLISLE OFFICE:
26 W. HIGH STREET
CARLISLE, P A 17013
PHONE: (717) 243-6222
FACSIMILE: (717) 243-6486
REPLY TO CAMP HILL
EMAIL: meshelman@ssfl-Iaw.com
November 21, 2005
Glenn R. Davis, Esquire
1700 Bent Creek Blvd, Ste 140
Mechanicsburg, P A 17050
Re: PNC Bank, N.A., vs. New Way Packaging, Inc., 05-2418 Civil Term
Dear Glenn:
In light of the Defendant's failure or refusal to execute the stipulation negotiated among
counsel, we issue the enclosed ten-day notice pursuant to Rules 3145-46 and 237.1 to move the
matter toward judgment and resolution. The contents of this correspondence are incorporated into
the notice by reference.
As you and I noted over the phone, there are some areas of vagueness in the Rules with
respect to garnishment procedure. Your client's answer to the interrogatories indicated that the
precise amount of Defendant's property in Garnishee's possession was uncertain at the time. And,
while you have since provided us a figure over the phone, we have nothing formal upon which to
enter a judgment at this time.
It is our position that issuing this notice will allow the Bank of Hanover either of two
courses of action. Under the first option, if the Bank of Hanover does not respond, PNC Bank may
then enter judgment against the Bank of Hanover as garnishee in an unliquidated amount under
Rule 3 I 46(a). PNC Bank would then motion the Court for a hearing. Such a hearing would permit
a garnishee to raise its 3145 defenses (arguably limited to "defenses against the judgment debtor"
under 3146(b); but, in the interest offacilitating a hearing, PNC Bank will not seek to prevent the
assertion of claims under 3 I 46(c)). Such a hearing could thus resolve the claims of both banks.
Under the second option, the Bank of Hanover could amend its Answer, admitting to a sum
certain, claiming any right of setoff it may have in the account superior to PNC Bank's garnishment
lien for amounts due to the Bank of Hanover from the account-holder, and withdrawing its New
Matter. PNC Bank could then enter judgment upon the admitted amount less the amounts claimed
by the Garnishee.
t Board Certified by the American Board of Certification in Creditors' Rights Representation
,
.
PNC Bank maintains that judgment should be entered against the Bank of Hanover for the
property of the Defendant admitted to be in the Garnishee's possession, subject to any right therein
claimed by the Garnishee. PNC Bank further acknowledges that Bank of Hanover would appear to
have a right of setoff. The only question would be whether the Bank of Hanover's account
documents with the Defendant permit the collection of fees incurred by the Bank of Hanover as a
result of actions ultimately initiated by the Defendant. PNC Bank is not seeking judgment against
the Bank of Hanover for more than is in its possession, less any right therein claim by it as
garnishee, nor for more than the amount of its judgment. As such, we submit that the second option
is the more appropriate one.
Please feel free to call or write if you believe this is neither the correct nor best way to bring
about a resolution of this matter.
s
I S,
FF, FLOWER & LlNDSA Y
~
Matthew J. shelman, Esquire
MJE:gk
cc: Eric Krimmel
Prothonotary (attached to 10-day Notice)
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION, : DOCKET NO. DS- -;;J..J If
Plaintiff
vs.
(!/~~L~9L1
NEW WAY PACKAGING MACHINERY, : CONFESSION OF JUDGMENT
INC.,
Defendant : 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 170 II.
2. The names and address of the Defendant is New Way Packaging Machinery, Inc.,
210 North B1ettner Avenue, Hanover, Pennsylvania 17331.
3. Defendant New Way Packaging Machinery, 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 1. 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.
10. 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
II. Interest continues to accrue at the rate of$210.35 per day.
WHEREFORE, Plaintiff, PNC Bank, National Association, demands judgment against
New Way Packaging Machinery, Inc., Defendant, in the amount of $706,879.42, plus interest at the
rate of $21 0.35 per day, from May 10, 2005, through the date of payment, including on and after the
2
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
Respectfully submitted,
SAlD~t u FLO~r LINDSAY
By: l i -
Geoffrey S. Sh ff, 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
3
COMMERCIAL GUARANT.
Borrower: EOWARD J. ABENDSCHEIN (SSN: 1~7'5)
It POllARD ROAD
MOUNTAIN LAKES, NJ 07Q.48
Guarantor: NEW WAY PACKAGING MACHINERY. INC.
210 NORTH IlLETTHER AVENUE
HANOVER. PA 17331
Lender: PNC BANK, NATIONAL ASSOCIATION
'2'2 CARLISLE PIKE
CAMP HILL, PA 17001-387'
AMOUNT OF GUARANTY. The amounl of ItIIs Guaranty Is Unlimited.
CONTINUING IJNlJMITED GUARAHTY. For good 8lUI vllullllo conslderlllon, NEW WAY PACKAGING MACHINERY, INe. ("Guarontor")
_Iutety IIftd unconcllUoneIly \lIIIlMtee. II1d prom/IllS 10 pey 10 PNC SANK, NATIONAl. ASSOCIATION ("lander") at I" order, In l.goI
lencler of tho United Slales of America, 1!11 Ind.bledneu (.. Ihll l.nn Is dinned below) of EOW ARD J. ABENDSCHEIN ("Borrower") to
Under on the terms end COndltton. sel Itlrth In I~ Gl/MIIlty. Under this GUerIlIty, the 1I1ll1ll1y 01 Guaranlor I. unlimited ond the obllglll....
of Guaranlor IA canlfnul~.
DEFINITIONS. The followil1Q words shall nave 1M (o"owi~ moanings when lJS8d In lhis Guaranty:
Borrower. The word ~orrower" moans EDWARD J. ABENDSCHEIN.
GUltlrltor. The word "Guarinior'" moans NEW WAY PACKAGING MACHINERY, INC..
Guaronty. The word "Guaranty" means this Guaranty mlde by GUItIl/1tor for 1M benefit 01 Lender dalad February 21, 2001.
Indebte<1nesa. The word 'ndebledn85S1f Is used in Its most ccmprehensive sense and means and includes any and all of Borrower's lia.bilities.
obliQations. debts. and indebtedness 10 Lender, now 8Jdstfng or hereinafter incUlT'Sd or created, lndudlng, without limitation, atlloans. advances,
interest, costs. debts, overdraff indebfadtlGSS. credit card indallIBdn.... ieose obligaUons, other obligaUons, and IIllllllUos of Borrower, or any of
thom, and any present or Mura jud>lments aglinsl Borrower, or any ollhem: ond whether any SllCh Indebtedness is voluntaniy or involuntarily
incurred, due or nol due, absolute or contingenl. IIquidlted or unliquidlted. dltormined or undelormlnBd; whelher Borrower may be liable
individually or jointiy wilh others. or primarily or secondanly. or as gual1ntor or surety; whelher recoVOfy on Ihe Indabledness may b. or may
become barred or unenforeeable against Borrower for any reason whatsoever: and whether the Ind.btedness arises from tTlnSlctions which may
be vOidable on account of infancy, insanity, ultra vires. or otherwise.
Lender. The word "1..ender" m..ns PNC BANK, NATIONAL ASSOCIATION, its successors and assiQns.
Related Documents. The words "'Related Documents" mean and include without limitation all promissory notes. credit agreements. loan
agreements. enwonms/ttal agreelMnts. guaranties. security agreements. mortgages. deeds of trust, and all other instruments. a;reements and
documents, whether now or herMltBt existing, executed in connection with the lndebtadneu.
MAXIMUM LIABILITY. The mIldmum IlIbIllty of GUItIfllot under this GUltonty shill be unlimited.
NATURE OF GUARANTY. Guarantor's liability under this Guaranty 5111" be open and continuous for so long as this Guaranty remains in lore..
Guarantor intends to guarantee 111 aU times the performance and prompt payment when due. whether at maturity or eanler by reason of acceleration Of
otherwise, of aU Indebtedness. Accordingly, no payments made upon the Jndebtedness will discharge or dimintsh the continuing liability of Guarantor
in connection with any remaining portions of the Indebtedness or any of the Indebtedness which subsequenUy arises or is thereafter incurred or
contracted.
DURATION OF GUARANTY. This Gual1nly wiU talce efleet wMn received by Lander without Ihe necOSS11y of any acceptance by Landor, or any nollee
to Guarv.ntor or to Borrower, and wtlI canltnua In tuB 10fC8 until aJllndebledness incurred or contracted before receipt by Lend... at lilY notice of
revocation shan have been fully and /inaJJy paid and satisfied and all other obllQallcns 01 Guarantor under this Guaranty shaff have ~"n pertOfmed in
fuJI. I' Guarantor elects to revoke this Guaranty, GUlUantor may only do so in wnung. Guarantor's written notice 01 re'-"oeanon must be mailed to
Lander, by c_ad mail. at the addras 01 Lander IIstad &beNe or such otMr place as Lander may das!gnale in Writing. Wrinen ",voc:ation of this
Guaranty will apply only 10 advances or new Indellle<lness crulBd affer acttull roceipt by Lander of Gual1nto~s written ",vocation. For tnis PUfPOSO
and without Umitation. the term -new Indetltedness'" does not include Indebtedness which at the time of notice of revocaUon is contingent, urUlquidated.
undetermined or not due and whfch tater becomes absolute, JlquJdated. determined or due. Notice of revocation shall be etfecttve onty as to the
par1lcular Gual1ntor providil1Q 1111 nob, and sllaJl nol aftecl tho liability of other guarantm. this Guaranty will continue to bind GlJIIlIfIlor lor all
IndebtedMSS inclJf'J'1Jd by Borrower Ot committed by Lendef' prtor to receipt of Guarantor/s wriffen n0tic8 of revocatfon, includlnq any extensions.
ranewaJ$. substitutions or modlftcallons of the Indebtedness. AD renewais. extensions. SUClStiturtons. snd mOdiftcations at the Indebtedness granted:
after GuarantOl"'s revocation, are contemplated under thi$ Guaranty and. speci1'icaUy win not be considered to be new Indebtedness. This Guaranty
snail bind the estate ot Guaranter as 10 Indebtedness created both before and attar the death or incapacity af Guarantor. regardless of Lenders actual
notic" of Guarantors ceath. Subtect to the foregoing. Guarantor's 8Xecutcr or administrator or other MJgat f8presentative may terminate this Guaranty in
th4t same mann9f in which Guarantor mignt nave terminated it and witt'! the same effect. Re1e8S8 of any other guarantor or termination at any other
guaranty at the Indatltldness shall not atf8Ct the liability of Guarantar under this Guaranty. A revocation receiwd by Lsnd.. from anyone 01 more
GuarantOlS shall not affect the liability of any ramaininQ Guarantor1 under this Guaranty. It Is anticipated that lIuctuatJona may occur In the
"115l'ogat. amount Of '''''eOledn... covered by thla G-.nty. _ It I. opedflcally _,edged _ Igreed by Gu......tor tIIal reducllon.ln
the amount of Indebtedne., eyen (0 :zerQ do4lan ($0.00" pnor to wrttten revocatIOn 0' thIa Gu-.nty by G.....antor ..,..1 not eonstltute a
t"",,'nlllon of lhl. Guorsnly. Thla GuIronIy II binding upon Guaronlor ond Guarantor'. lie,,*> _ra _ ISBIlI"a so lon; .. any of till
-- Indo_n... """'M unplld and even tnOUgh tile Indebtldn... _t_ mey from Umo fa 11m. lie arc dOl/lts ("'.001.
GIJAR.BNTOR'S AUTHORIZATION TO lBIOER. GUSllIntor authOOZes Landar, either beto", or after any lllVoc:ation hereol, Without nottce or
demand and wfllloul -.un; G_or'alllblllly un_ thls Guaranty. from _ to tlm.: (8' prior to ",voestlon as Sllfartll -.-.. 10 _
one or ""'"' Idd_ JIClIrBd or _ loans 10 11oo.0_.10 I.... equlpmanl or otller goods to _. or 0_..10 "",.nd
-'dJtIona credit to 8om:Iw1lH'j (b) to ..... compromiM, ,...,..". extend, .ccele,.., or ottrerwf.. cMnge one fN more Ume.a the tllne lot
peym.nt or otller terms 01 tn. Indebtedn... or any pert of the fncfebledn.... Includlnllll1Cl'NMl and _ 01 tn. rat. Of Int_ on 1!11
ll1deblldnea; _. may be r_lId II1d may be for longer lit., 1!11 otIg1ns1loen lerm; leI to lIk. _ hold securtly for 1!11 paymenl of
thIs Guarlll'lty or ttle IndebtedneAt and UCMnge, enforce, ..we. aubordln"., mil or dedcM not to perfect, and rei... IIt'f such securfly,
wfth or wlthoYt the substitution 0# I'IeW coJJa__; (d) to refease. SUbstitute, ... not to sue, Of" d", wtth II'fy one or manl of SOrrowet's
5Utetfes., endorsers, or other guarantors on any tllf'mS or In any manner L.ender m-r chooM; (e, to determine bowl when and whM 8pplUUon
nf """m~n'!I ,,"d credits shall be made on lhe Indebtedness; (fl to apply SUdI secUrity and dJlec1 the order or manner of sate thereof,
h b f l<-L111
Ev:. I I (J
02-21-2001
Loan No
COMMERCIAL GUARANT
(Continued)
...age ~
Including without IImltallon, any nonjudicial sale permitted by the terms 01 the controlling security agreement or deed 01 trust, "" LendeNn lis
, discretion may determine; (II) to sell, transler, assIgn, or grant partlcipallons In all or any part at the Indebtedness; and (h) to assIgn or
transler this Guaranty In whole or In part.
GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to Lander that (a) no representations or agr~ments
of any kind have been made to Guarantor which would limit or qualify in any way Ihe lerms of Ihis Guaranty; (b) this Guaranty is executed at
Sorrower's raquest and not at the request of Lender; (c) Guarantor has full power. right and authority to enter into this Guaranty; (d) the provisions of
thIS Guaranty do not conflict with or result in a default under any agreement or other instrument binding upon Guarantor and do not result in a violation
of any law, regulation, court decree Or order applicable to Guarantor; (8) Guarantor has not and will not, without the prior written consent of Lender,
sell, lease, assign, encumber, hypothecate, transfer, or otherwise dispose of aU or substantially a/lot Guarantor's assets. or any interest therein; (I) upon
Lender's request, Guarantor will provide to Lender financial and credit information in form 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 ccrrect in all material respects and
fairly present the financial condition of Guarantor as of Ihe dates the financial information is provided; (g) no materiat 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, investigation, administrative proceeding or similar action (including
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 (j) Guarantor has established adequate means of obtaining from Borrower on a continuing basis information -regarding Borrower's
financiaJ 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 appiicabie law, Guarantor waives any right to require Lender <a) to continue lending money or to
extend other credit 10 Sorrower; (b) 10 make any presentment. protest, demand, or nonce at 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 ot 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 onca against any person, including Sorrower or any other guarantor; (d) to proceed directly against or exhaust any
coilaterai heid by Lender from Borrower. any other guarantor, or any other person; (e) to give notice of the terms. time. and place of any public or
private sala of personal property security held by Lender from Borrower or to comply with any other applicable provisions of Ihe Uniform Commercial
COde; (fl 10 pursue any other remedy Within Lender's power; or (g) 10 commit any act or omission of any kind, or at any lime, 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" law Or any other law which may
prevent Lender from bringing any action, including a claim for deficiency, against Guarantor, before or atter 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 llmiting, qualifying, or discharging the Indebtedness; (c) any disability or other defense of Borrower, of
any other guarantor, or of any other person, or by reason of the cessation of Borrower's liability from any cause whatsoever, other than payment in full
in legal lender, of Ihe Indebtedness; (d) any nght to cialm discharge of the indebtedness on the basis of unjustified impairment of any collateral lor the
Indebtedness; (e) any statute of limItations, if at any tlme any action or suit brought by Lender against Guarantor is commenced there is outstanding
Indebtedness of Borrower to Lender which is not 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 otherwise, or by any
third party, on the Indebtedness and thereafter Lender is forced to remit the amount of that payment to Borrowers 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 claim 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 WITH RESPECT TO WAIVERS. Guarantor warrants and agrees thai each of the waivers set forth aoove is made
with Guarantor's full knowledge of its significance and consequences and that, under the circumstances, the waivern are reasonable and nol contrary to
public policy or law. If any such waiver is determined to be contrary to any applicable law or public poJicy, such waiver shall be effective only to the
extent permitted by law or public policy.
LENDER'S RIGHT OF SETOFF. In addition 10 ail liens upon and rtghts of setoff against the moneys, securtnes or other property of Guarantor given 10
Lender by law, Lender shail have. wllh respect to Guarantor's obligations to Lender under this Guaranty and to the extent permitted by law, a
contractual security interest in and a rignt of setoff against, and Guarantor hereby assigns, conveys, delivers, pledges, and transfers to Lender all of
Guarantor's right, title and interest in and to, all deposits, moneys, securities and other property of Guarantor now or hereafter in the possession of or
on deposit with Lender, whether held in a general or specjaJ account or deposit, whether held jointly with someone else, or whether held for
safekeeping or othel'\Vise, 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 of setoff or to enforce such security interest or by any delay in so doing. Every right of setoff and
security interest shall continue in full force and effect until such right of setoff or security interest is specifically waived or released by an instrument in
writing executed by Lender.
SUBORDINATION OF BORROWER'S DEBTS TO GUARANTOR. Guarantor agrees Ihat the Indebtedness of Sorrower to Lender. whether now
existing or hereafter created. shall be prior to any claim that Guarantor may nQw have or hereafter acquire against Sorrower, whether or not Borrower
becomes insolvent Guarantor hereby expressly subordinates any claim Guarantor may have against Borrower, upen 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 of Borrower,
through bankruptcy, by an assignment for the benefit of creditors, by vOluntary liquidation, or othelWise, the assets of Borrower applicable to the
payment of the claims of both Lender and Guarantor shalJ be paid to Lender 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 Borrower; provided however, that such assignment shall be affective only for the purpose of assuring to Lender full payment in legal
tender of the Indebtedness. If Lander so requests, any notes or credit agreements now or hereafter evidencing any debts or obligations of Borrower to
Guarantor shall be marked with a legend that the same are subject to this Guaranty and shall be delivered to Lender. Guarantor agrees, and Lender
hereby is authorized, in the name of 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 Lander deems necessary or appropriate to perlect, preserve and enforce its rights under this
Guaranty. .
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Guaranty:
Amendments. This Guaranty, together with any Related Documents, constitutes the entire understanding and agreement of the parties as to the
matters set forth in this Guaranty. No alteration of or amendment to this Guaranty shall be effective unless given in writing and signed by the party
,
I:~
02-:,,-2001
Loan No
COMMERCIAL GUARANTY
(Continued)
Page 3
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. If Ihere is a
lawsuit. Guarantor agrees upon Lender's request to submit to the jurisdiction of the courts of CUMBERLAND County. Commonwealth of
Pennsylvania. Lender and Guarantor hereby waive the right to any jury trial in any action, proceeding, or counterclaim brought by either Lender or
Guarantor against Ihe other. This Guaranty shall be governed by and construed in accordance with Ihe laws of the Commonweallh of
Pennsylvania.
Attorneys' Fees; Expenses. Guarantor agrees to pay upon demand all of Lender's costs and expenses, including attorneys' rees and Lender's
legal expenses. incurred in connection with the enforcement of this Guaranty. Lender may pay someone else to help enforce this Guaranty, and
Guarantor shall pay the costs and expenses of such enforcement. Costs and expenses include Lender's attorneys' fees and legal expenses
whether or not there is a lawsuit, including attorneys' fees and Jagal expenses for bankruptcy proceedings (and including efforts to modify or
vacate any automatic stay or injunction), appeals, and any anticipated post-judgment collection services. Guarantor also shall pay all court costs
and such additional fees as may be direcled by Ihe court.
Notices. All notices required to be given by either party to the other under this Guaranty shail be in writing, may be sent by telefacsimile (unless
otherwise required by Jaw), and, except for revocation notices by Guarantor, shall be effective when actually delivered or when deposited with a
nationally recognized overnight courier, or when deposited in the Uniled States mail, first class postage prepaid. addressed to the party to whom
the notice is to be given at the address shown above or to such other addresses as either party may designate to the other in writing. All
revocation notices by Guarantor shall be in writing and shall be effective only upon delivery to Lender as provided above in the section titled
'OURATION OF GUARANIY." If there is more than one Guarantor. notice 10 any Guaranlor will constitute notice 10 all Guarantors. For notice
purposes, Guarantor agrees to keep Lender informed at all times 01 Guarantor's current address.
Interpretation. In all cases where there is more than one Borrower or Guarantor, then all words used in this Guaranty in the singular shall be
deemed 10 have been used in the plural where the context and construction so reqUire; and where there is more than one Sorrower named in this
Guaranty or when this Guaranty is executed by more Ihan one Guarantor, the words "Borrower" and "Guarantor" respectively shall mean all and
anyone or more of them. The words "Guarantor," "Sorrower," and "lender" include the heirs, successors, assigns, and transferees of each of
them. Caption headings in this Guaranty are for convenience purposes only and are not to be used to interpret or define the provisions of this
Guaranty. If a court of campetent jurisdiction finds any provision of this Guaranty to be invalid or unenforceable as to any person or circumstance,
such finding shall not render that provision invalid or unenforceable as to any other persons or circumstances, and aU provisions of this Guaranty
in aU other respects shall remain valid and enforceable. If anyone or more of Borrower or Guarantor are corporations or partnerships, it is not
necessary for Lender to inquire into the powers of Borrower or Guarantor or of the officers, directors, partners, or agents acting or purporting to act
on their behalf, and any Indebtedness made or created in reliance upon the professed exercise of such powers shall be guaranteed under this
Guaranty.
Waiver. Lender shall not be deemed to have waived any rights under this Guaranty unless such waiver is given in writing and signed by Lender.
No delay or omission on the part of Lender in exercising any right shall operate as a waiver at such right or any other right. A waiver by Lender of
a provision of this Guaranty shall not prejudice or constitute a waiver of Lender's right otherwise to demand strict compliance with that proviSion or
any other provision of this Guaranty. No prior waiver by Lender, nor any coursa of dealing between Lender and Guarantor, shall constitute a
waiver of any of Lender's rights or of any of Guarantor's obligations as to any future transactions. Whenever the consent of Lander is required
under this Guaranty, the granting of such consent by Lender in any instance shall not constitute continuing consent to subsequent instances
where such consent is required and in all cases such consent may be granted or withheld in the sole discretion of Lender.
LIMITED RECOURSE AS TO NON-APPLICANT SPOUSE. Notwithstanding anything conlained herein to the contrary. il is agreed Ihal. unless an
exception to the requirements of Regulation B of the Board of Governors of the Federal Reserve System applies in connection with the extension of the
Indebtedness and Ihe execution of Ihis Guaranty, fhe spouse who is deemed not to be the 'applicanl for credit" lor purposes of such regulation (Ihe
"Non-Applicant Spouse") shall be personally liable under this Guaranty only with respect 10 assets held jointly as of the date hereof or hereafter
acquired, and the lien of any judgment, order or other relief against the Non-Applicant Spouse shall be limited thereto. Nothing herein, however, shall
limIt the Lender's rights against any person, firm or entity other than the Non-Applicant Spouse.
FINANCIAL INFORMATION PROVISION - GUARANTOR. Guaranlor shall deliver or cause 10 be delivered 10 Lender nollaler than 120 days after Ihe
close of each fiscal year, a copy of the federal income tax return filed by Guarantor, which tax return shall be a true and complete copy of Ihe return
filed by Guarantor with the Internal Revenue Service. In addition, Landar may require additional financial information from time to time as reasonably
requested.
CDNFESSION OF JUDGMENT. GUARANTOR HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE
PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA. OR ELSEWHERE. TO APPEAR AT ANY TIME FOR
GUARANTOR AFTER A DEFAULT UNDER THIS GUARANIY. AND WITH OR WITHOUT COMPLAINT FiLED. AS OF ANY TERM, CONFESS OR
ENTER JUDGMENT AGAINST GUARANTOR FOR THE ENTIRE PRINCIPAL BALANCE OF THIS GUARANIY. ALL ACCRUED INTEREST, LATE
CHARGES. AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO ANY COLLATERAL SECURING THE
INDEBTEDNESS 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 COLLECTION, BUT IN ANY EVENT NOT LESS THAN
FIVE HUNDRED DOLLARS ($500) ON WHICH JUDGMENT OR JUDGMENTS ONE DR MORE EXECUTIONS MAY ISSUE IMMEDIATELY; AND FOR
SO DOING. THIS GUARANIY OR A COPY OF THIS GUARANIY VERIFIED BY AFFIDAViT SHALL BE SUFFICIENT WARRANT. THE AUTHORITY
GRANTED IN THIS GUARANIY TO CONFESS JUDGMENT AGAINST GUARANTOR SHALL NOT BE EXHAUSTED BY ANY EXERCISE OF THAT
AUTHORITY. BUT SHALL CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL PAYMENT IN FULL OF ALL AMOUNTS DUE UNOER THIS
GUARANIY. GUARANTOR HEREBY WAIVES ANY RIGHT GUARANTOR MAY HAVE TO NOTICE OR TO A HEARING IN CONNECTiON WITH ANY
SUCH CONFESSION OF JUDGMENT, EXCEPT ANY NOTICE AND/OR HEARING REQUIRED UNOER APPLICABLE LAW WITH RESPECT TO
EXECUTION OF THE JUDGMENT, AND STATES THAT EITHER A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THIS CONFESSION OF
JUDGMENT PROVISION TO GUARANTOR'S ATTENTION OR GUARANTOR HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL.
EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS GUARANTY AND AGREES TO ITS
TERMS. IN ADDITfON, EACH GUARANTOR UNDERSTANDS THAT THIS GUARANTY IS EFFECTIVE UPON GUARANTOR'S EXECUTION AND
DEl-IVERY OF THIS GUARANTY TO LENOER AND THAT THE GUARANTY WILL CONTINUE UNTIL TERMINATED IN THE MANNER SET FORTH
IN THE SECTION TITlED .DURATION OF GUARANTY.. NO FORMAL ACCEPTANCE BY LENDER IS NECESSARY TO MAKE THIS GUARANTY
EFFECTIVE. THIS GUARANTY IS DATED FEBRUARY 21, 2001.
THIS GUARANTY HAS BEEN SIGNED AND SEALED BY THE UNDERSIGNED.
GUARANTOR:
02-21-2001
Loan No
COMMERCIAL GUARANT .
(Continued)
:;'age ..
No/I'~HINER;,INC.
:i.~~:::~:tK~~~~t!J~~
NDSCHEIN, PRESIDENT
~
'"
.........w:..,
:.:-:Ab.::::~::~:::::::; :::~:;{::l$.~)
CORPORATE ACKNOWLEDGMENT
STATE OF
hAl Al5'j It/ A,v i .4
1//]" k
(
)
)SS
)
COUNTY OF
On this, the ,,2 / ...-r- day of ,t:7' /'/@{//IA..II , 20.LLL, before me , the
undersigned Notary Pub;;c. personally appeared EDWARD J. ABENDSCHEIN who ack wledg himself or If to be the PRESIDENT of NEW
WAY PACKAGING MACHINERY. INC., a corporation, and that he or she as such PRESIDENT, being authorized 10 do so, executed the foregoing
in ning the name of the corporation by himself or herself as PRESIDENT.
Iln witness _t"4lfl!We8ffl6loet my hand d offlcia' seal.
KATHY J. HAGAR MAN. NOT.lRY PUIlILIC ~ /""7 ~
. H""QVI.A EilORO. YORK COUN'TY, P4. ~ -
.. CC..''''ON no'. " ,UN. 19. 2000' ." .t:. ;bn<. ....;,;
Notary PubIC in dfortheStateot .vN.s;~ u'A;</ol
. ._.,c=':;'~"'. ~..:_-.~._..,.~~..,,~-=--=-"",
LASER PRO, Reg. U.S. Pat. &. T.M. Off., Ver. 3.29a{C}COncentrex20'QI AlIrlg/'ttsr~urved.1PA-E20Ae3.29F3.29AaeNOSN.LN C29.0Vl.I
,.e::.
. \''':.;1
/' ,
PROMISSORY NOTE
(.
'.';i.':? 1{~#:i:'
Borrower: EDWARD J. ABENDSCHEIN (SSN: 164-40-4745)
61 POLLARD ROAD
MOUNTAIN LAKES, NJ 07lUI
Lender: PNC BANK, NATIONAL ASSOCIATION
4242 CARLISlE PIKE
CAMP HILL, PA 171101-&174
Principal Amount: $750,000.00 Interest Rste: 8.000% Date 01 Note: February 21, 2001
PROMISE TO PAY. EDWARD J. ABEHDSCHEIH ("1lonOWet.) proml... to JllIY to PNC BANK, NATIONAL ASSOCIATION ("Lender.), or order, In
_ "*"'Y 01 \lie ~ Sima 01 Amertca, the pr1ndpeI nOllnl 01 sev.. Hundred FIlly Tbou.1d , OOItOO Dol,.,.. (f750,ooo.oo/, ID(lelber
__II111e nile 011.000'" per Innum on the unpeld principii belancefrOm FebrUcY 21, 2001, unlll paid In fUll. .,
PAYMENT. Borrower will JllIY thl. _ In 51 regulW 1MYftI6II" 01 $7,21..,3..... .... onel/regUlor IIlll JllIYm.nt eaII.....ed .1 $51t,Gf2.l5.
_".. _ paymentla due _ 21, 2001, IIIId ell aub8equenl JllIYm.... are due on tile ..... doy 0'..... month after thaI. Borrow.r'.
_ paymenl due FebrUcY 21, 2001, win be lor III pr1nclpal and III -.ued Inlllflll not yet ,*". Poy-.. Include principal MIl Interut. 1lle
ennuallnt8rest raI8 for thIS Note Is computed on . 3651360 basis; that Is, by IlllPlylng the ratio of the .nnuallnt....t rate ""'" . ye8J of 360 deys,
mulllplild by tho outstandlng principal beIance, multiplied by tho acw.l number of clays tho principel bal8nce Is outstanding. Borrower wiM p.y lend...
aI Lander's address shown ebove or.t such other piece as Lender may desi\lnate In writing. Un_ otherwise agreed or raqulrad by appllcabla law,
paymen1s W1l be IlllPlled IfrsIto 8CCtued unpeld Int_1. then to principal, and .ny r.meInlng .mount to .ny unpaid coIIdon costs .nd I.t. charll.',
PREPAYMEIIT PEIIAL TY. Upon prepoymenl o'thl. Nole, Lender Ia entitled to IIIe following pfeJlllYm.nl penelty: On MY bueln... dOY, upon
poymenl 01 allllCCnIed unpaid In_ on this Not., Ind upon ftv. (5/ bualneaa doy'. pt10r _en noUc. to L._, \lie Borrower moy prejlOY
1/1 or port 0I1IIe oulltalldlng prlnclpll 01 tIll6 Not.; provtded, hoWever, that the Borrower 1110 agreea to JllIY Lender 18 compensation lor th.
COIl ollldVlI1CIng fIXed rate fUnds, In IU110UIII eqUal to lIIe Cost 01 Prepayment.
.Cost 01 PrllllYment. means In amount eq~ to the pruenl value, If pcslUve, olllle product 01 (I) the difference be\Ween (I) the yield, on the
_ 0I1hIa Note, of a U. S. Treuury Obligation willi a maturity IImllll to this Note minus PQ till ylald on the pfeJlllYment detl, 01 a U. S.
T_ ollffgatlon _ . nuturlly _.. to tile _g moturtty 0' thII Not. ond Ibl tile principal amount to be prepaid, and (c) the
..._ 01 y.... Including _onII y.... frOm IIIe prepoyment date to the maturtty _ Oflhl. Nole. The yield on In)' U. S. Tr.....ry
ollffgIIIon MIll be determined by reference to F_ _e S\ltllllclII ReI_ H.1S(51') .selected In.....1 Rat.... For purposes 01
rnIIdng ........ volue cIIcIllaUona, the yllkl to .....urIty 01. slm". mlluJlty U. S. T......ry ObIIgotJon on tile prepaymenl dete - be doomed
IIIe dtIcoUnt rate. The Coal 01 Prepayment 011011 also opply to any PlYmen" mede after __alIon 01 tho maturtty ollhl. Noto. Except lor Ih.
foregoing, BomlW8f may pay all or a perUon of the .mount owed _ Ih8n n Is dUll. Early payments will not, un_ agreed to by Lend... in writing,
_ Botrower of BOITOWer'. obllgltion to continu. to make p.ymen1s und... the p.yment schedula. Reth.r, they W1~ raduce \lie principal bal.nce
duo and may ...ultln Bcrrow... making Iawer p.yments.
LATE CHARGE. II. P.yment Is 1& doya or more late, Borrower will b. charged 5.000'" 01 \lie unpaid porllon 01 the rogullr1y ICheduled poymenl
or $100.00, wtIlchever ,. _.
DEF All. T. Borrower wHl be in d.'lun II any of tho 'clawing happ.ns: (e) Borrow... 181I& to make Iny p.ym.nt when du.. (b) BOITOW.r breaks any
promise BomlW8f ties mad. 10 Lender, or Borrower falls to comply with or to perlorm when due any oth.r Ierm, obftgltion, COll1lnlnt, or condition
contained In this Note or any .greement related to this Note, or in .ny other ag"",mant or loan Bonow... has wIth Lender. (c) Borrower de/aulls under
any loan. _OIl of credll, security Igreomant, purchese or saJes ogreoment, or any other agreement, in I.vor of .ny other c:rwdnor or p.....n \het
may materielty affecl .ny of Borrower'. property or Borrower's ebftlty to _y this Noftl or perlorrn BOITOW.... obJlgations under this Nol. or any of the
_led Documents. (d) Any representation or statem.nt made or lurnlshed to Lend... by Borrower or on Borrow.r'. b.half Is 1.1se or misle.dlng In any
materiel respect eith.r now or at the time mad. or tumist18d. (.) Borrower dl.. or becomes Insoivent, . recoivar is .ppolnted lor any pert 01 Borrow.r's
property, Borrow... makes In assignment for the b.nefit of crednors. or Iny proceodlng Is comma,"""d .ither by Borrow... or .g.inst Borrow.r und.r
any benkrupfcy or InsoIII1Incy ilws. (t) Any Ct8dltor Iri.. to laJ<8 any of Borrowe<'. properly on or In which Lender has a lien or security Interest. This
Includes a garnishment 01 any of BOlTOW8r" aocounts with LInder. (g) Any of the evenl$ describ8d In this deleu/l socHon occurs wllh rasPSC! to any
guarantor of thiS Note. (h) A material adverse change occurs In Borrower's financial condition. or Lender bell8V8$ the prospect of payment or
pertormance of the Indebtedness Is impairad.
LBIDER'S RIGHTS. Upon deleult, Lender may, oft... gMng .uch notices u requlrad by opplicable taw, declare the .ntire unpaid principal betance on
this Note and ell .0000000d unpaid Interest Immedletely dUll, .nd th.n Borrow... win p.y lhat .mount. upon defaull, Including feilure to pay upon final
metunty, lender, at Its option, may also. If permitted und... applicable law, Increese the Int.....t rat. on this Not. 5.000 parcenlego points. 1lle Interest
rale win not 8XC88d tho maximum ralo pet"l11llfed by app/Jceble law. L.nder mey hire or pay someone _ to holp coilect this Note II Borrower does not
PlY. Borrower eo will pay Lender that amount. This Indudes. subject to any limits under applicable law. Lender's attorneys' feeS and Lender's r.ga'
expenses whalh... or nollher. Is . lawsun, Including Ittorneys' res and legal exponses for benknJpfcy proceodings (InclUding .Ilorts to modify or
vacate any automatic stay or injunction), appeals. and any anticipated post-judgment co"ectton seMces. It not prohibited by appUcable law. Borrower
also will pay any court costs, in addition to aU other sums provided by law. If Judgment Is entered In connection with this Note. interest will contlnus to
accru. on this Note .fter judgment at lhe ....lIng interest rate provided lor In Ihis Note. 11\1. Note hall been dollvered to Lender and ICcOlltod Dy
L.endor In tho Commanwealll1 01 PennaylvanlL II there la alaWaun, Borrower agrees upon Londer'. request \0 aubmll to the furiadlcllon o,tho
.....m. 01 CUMBERLAND County, 111. Commonwealtll Of PennoylvlnlL Lender ond Borrower hereby waive the right 10 any fury trtel In any
_, ~lng, or counterclllm broUght by either Lender or Borrower agelnst the olhe<. TIlla Nolo ""all". govorned by end construed In
acconIance with the lawa Of the Commonwealth Of Pennsylv..la.
4 RIGHT OF SETOFF. Borrower grants to LInder a contractual security interest in, and hereby assigns. conveys, delJvers. pledges, and transfers to
Lender ail Borrow....s right. title and Interest In and to, BOI'1"'O'MM"s accounts with Lender (whether checklno. sav;nos. or some other account), ;ncIudll'lQ
without Dmltatio::A': :co"n1s hold Jointly with someone ..... .nd eB ICCOUnts Botrower may open in \he lulura, excluding however" IRA .nd Keogh
_n1s, and t 1CC0unts lor which tho grent of a security interest would be prohibited by law. Borrow... .uthoriZ8S Londer, to the _nl
~ by aPplicable law. to charge<< setoft aU sums owtng on thts Note aoatnstany and aU such ac:counts.
COlLAlelAL. This Note Is socurad by a Mortgege deled February 21, 2llO1, to Lender on l1lBi property located In ADAMS County, Commonw&8llh ot
Pennsylvenia, alIlho lorms .nd conditions 01 which are hereby Il1COll>oraled .nd made . pert 01 this Note.
FINANCIAL tNFORM... TION PROVISION. Borrower.grea to dallwr .ny ftnanclel and other business Inform.tion co,"""rning Borrower thet lond.r
may request from time to Ume. such as annuat and Interim ftnancial statements (at! of which shaU be prepared In accordance with generally accepted
~,-" :undng principles) and tederallncome tax rettM'ns.
E'i ht h.J "/!/
Loan No
rnVI"II.;;J.o;Jvnl .",vle
(Continued)
" Page 2
YEAR 2000 COMPLIANCE. Borrower has ,e",ewed the areas within Its business and operations which could be e"",,,sly alf9cted by, and has
developed or Is developing a program to address on a timely basis Ihe-risk thai certain compuler applications used by Borrower may be unable to
recognize and pertorm property date-sensltive functions involving deles prior 10 and after December 31, 1999 (tha "Year 2000 Problem"). The Vear
2000 Prolllem will not result, and Is not reasonably expected to result, In any malerfal adverH effect on tha business, properties, ...ats, financial
condition, results of operations Of prospects of Borrower, or the abiRly of Borrower to duly and punctually payor perform its obUgadons hereunder and
under the Related Documents.
ADDITIONAL FINANCIAL INFORMATION PROVISION. Borrower shati dsli_ or cause to be delivered to Lender not later than 120 deys after the
ctose of Hch calendar year: (8) a copy of the federal income tax return filed by Borrower. which tax return shall be a true Bnd 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 financial information from time to time as reasonably requested.
GENERAL PROVISIONS. Lender may delay or forgo enforcing any of Its rights or remedies under this Note without losing tham. Borrower and any
other person who signs, guarantees or endorses this Note, to the extent allowed by law, waive presentment, demand for payment, protest and notice ot
dishonor. Upon any chenge In the terms of this Note, and unless olhe<wise expressly stated in writing, no party who signs this Note, whelhar as maker,
guarantor, accommodation maker or endorser, shaH be rel....d Irom llabtilty. AJlsuch par1les agree that Lender may renew or extend (repeatedly and
for any length 01 time) this lcen, or rei.... any party or guarantor or collaleral; or Impair, fall 10 _ upon or perfect Llnde(s ""urily Interest.in the
collateral; and take any oth91 action deemed necessary by Lender without the consent of or notice to anyone. All such par1I..also agree that Linder
may modify this loan without the consent of or notice to anyone other than the party with whom the modtftcatlon Is made. If any portton of this Not. is
for any reason determined to be unentOlC88ble, it win not affect the entorceability of any 01"'" provisions of this Note.
CONFESSION OF JUDGMENT. BORROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE PROTHONOTARY
OR CLERK OF ANY COURT tN 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 ANY TERM, CONFESS OR ENTER JUDGMENT AGAINST
BORROWER FOR THE ENTIRE PRINCIPAL BALANCE OF THIS NOTE, ALL ACCRUED INTEREST, LATE CHARGES, AND AN'( AND ALL AMOUNTS
EXPENDED OR ADVANCED BY LENDER RELATING TO AHY COLLATERAl SECURING THIS NOTE TOGETHER WITH INTEREST ON SUCH
AMOUNTS, TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEY'S COMMISSION OF TEN PERCENT (10'110) OF THE UNPAID PRINCIPAL
BALANCE AND ACCRUED INTEREST FOR COlLECTION, BUT iN AN'( EVENT NOT LESS THAN FIVE HUNDRED DOLLARS ($500) ON WHICH
JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATE!. Y; ANO FOR SO DOING, THIS NOTE OR A COPY OF THIS
NOTE VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT. THE AUTHORI1Y GRANTED IN THIS NOTE TO CONFESS JUDGMENT
AGAINST BORROWER SHALL NOT BE EXHAUSTED BY ANY EXERCISE OF THAT AUTHORI1Y, 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 HEARING IN CONNECTION WITH AN'( SUCH CONFESSION OF JUDGMENT, EXCEPT ANY NOTICE AND/OR
HEARING REQUIRED UNOER APPLICABLE LAW WITH RESPECT TO EXECUTION OF THE JUDGMENT, ANO STATES THAT EITHER A
REPRESENTATIVE OF LENDER SPECIFiCAlLY CALLED 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 UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE. BORROWER AGREES TO
THE TERMS OF THE NOTE AND ACKNOWLEDGES RECEIPT OF A COMPLETED COpy OF THE NOTE.
THIS NOTE HAS BEEN SIGNED AND SEALED BY THE UNDERSIGNED.
BORROWER:
x
FiXed R~I,. B~lloo".
LASER PRO. Req. U.S. P~I. I. T.M. Off., var. 3,2h. (C) Conclnlrex 2001 Allnghll reserved. (PA~C20 e3.29 ABeNOSN.LN C2t.OVL\
.
PNC BANK., j';A TIONAL A"~')cIA nON
4242 Carlisle Pike
Camp Hill, PA 17011
S-mail: eric.k....;mrnelraJoncbank.com
Eric D. Krimmel
V ice Presidem
(717) 73G-2492 Tel
(717) 730.2373 Fa.x
~ PNCBAT\K
November 30, 2004
Mr. Edward J. Abendschein
88 Pollard Road
Moumam Lakes. NJ 07046
Mr. Edward J. Abendschein, President
NWI, Inc.
New Way Packaging Machinery, Inc.
210 Blettoer Avenue
P. O. Box 467
Hanover, PA 17331
In reo Obligor/Obligation Nos.: 30932275-601644017 (S750,000 Loan)
Dear Mr. Abendschein:
As you know. you are obligated to PNC Bank, National Associarion ("PNC") for the above-referenced ioan accou::::
(the "Loan"), as evidencec by a certain Promissory Note, Mortgage, Commercial Guaranties, and mher relate-j
documents (the '"!.Dan Documems'").
As you also know, you are in default under the Loan and Loan Documems for your failure to pay the October 2l.
200" and November 21. 2004 loan payments, which consrimtes an Even! of Default under the Loan and Loa::
Documents.
As Co r~suj! of L~e above Event of Default, all liabilities and obligations under tile Loan and Loan Documents hay~
been accelerated and all liabilities and obligations under the Loan and Loan Documents are immediately due and
payable to PNC. As of this date the amount due under the Loan and Loan Doc:J1llents is as follows:
Obligor/Obii.atio" Nos. 30932275.601644017 (S750.000 Loan)
Principal S582,497.57
Interest to Ili30/04 14,734.20
Late charges 100.00
Mortgage satisfaction fee 30.50
Total $597,362.27 plus prepa}mem fees and costs
Please be advised that unless pa}ment 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 sha.:J
take all action it deems appropriate to collect the above sums due and owing, presef\le, protect and enforce its righG
under the Loan and Loan Documents.
This lener shall Dot be deemed to constitute a waiver of any outstanding defaults or Events of Default, nor shal1 '"
obiigate PNC. or be cODsttUed to require PNC, to waive any defaults, whether now existing or which may ace""'=-
after the date of this letter, nor shall it limit PNC's rights to exercise all of its rights and remedies under the Loo
Documents, including any other loan documents executed in connection therewith, al1 of which rights PNC
expressly reserves.
A member of The PNC Financial Services Group
4242 Cartisl!: Pike Camp Hill Pennsylvania 170i1
''fthb,l C'
......-
Mr. Edward J. Abendschein
November 30, 2004
Page 2
Very truly yours,
PNC Bank, National Association
La~
Eric D. Krimmel
Vice PreSident
Certified Mail Nos.:
700204600000 9754 8978
7002 0460 0000 9754 8985
cc: Regular Mail
John M. Crabbs, Esquire
Mark A. Gittelman, Esquire
PNCJBANK
Disclosure for Confession of Judgment
(Guarantor)
Undersigned:
New Way Packaging Machinery, Inc.
210 North Blettner Avenue
Hanover, PA 17331
Lender:
PNC BANK. NA nONAL ASSOClA nON
4242 CARLISLE PIKE
CAMP HU.L. PA 17011-8874
The undersigned has executed, and/or is executing, on or about the dale hereof, a Guaranty and Suretyship
Agreement. in respect of the obligations owed to Lender by ED WARD J. ABEND SCHEIN under which the undersigned is
obligated to repay monies to Lender.
A. THE U,"ffiERSCGNED ACK.'IlOWLEDGES AiVI) ACREES THAT nIE ABOVE DOCUMENT CONTAIN'S PROVlSIONS UNDER WHICH L
&"ffiER ;\"[AY E,;,..<rrER JlJDGMEi'IT BY CONFESSlON ACA.IN'ST TIlE UNDERSIG1'fED. BEL"fG FULLy AWARE OF ITS RIGHTS TO PRIOR NonCE AND A
HEARING ON THE VALIDITY OF ANY JUDGMENT OR OTHER CI..AJl\olS THAT MAY BE ASSERTED AGAINST IT BY LENDER 'THEREUNDER BEFORE
JUDG~lE..""'T IS E;'/TERED. THE tJNDERSIGl'IED HEREBY FREELY, Kt'lOWlNCLY AND IN'TEWGENTLY WAIVES THESE RIGIITS AND EXPRESSLY
AGREES A.,'\'D CONSEi''TS TO LEi'r'DER'S ENTERL~G JUDGMENT AG~ST IT BY CONFESSlON PfJRSUAJ.VT TO THE TElL"fS THEREOF.
B. THE UNDERSIGNED ALSO ACK.,'lOWLEDGES AfI{O AGREES TIlAT nIE AQOVE DOCUMENT CONTAlNS PROVISIONS UNDER WlilCH
L&"1>ER MAY, AFTER ENTRY OF JUDGMENT A."'([) wtnIOUl' EITHER NonCE OR A HEARING. FORECLOSE UPON. AITACH.. LEVY. TAKE
POSSESSION OF OR OTHERWISE SEtZE PROPERTY OF TIlE UNDERSIGNED Il"l' FUl..L OR PARTIAL PAYMENT OF THE JUDGMENT. BEING FUtLY
A WARE OF ITS RIGHTS AFTER JUDGMENT IS EN"I'ERED (IN'CLUDING TIm RIGHT ro MOVE TO OPEN OR STRIKE THE JU'DGMEl''T), THE
UNDERSIGNED HEREBY FREELY, KNOWINGLY AND INTELUGENTLY WA.IVXS ITS RIGHT'S TO NonCE AND A HEARING AND EXPRESSLY AGREES
AJ."ffi eONSE.'ffS TO LENDER'S TAKINC suet! ACTIONS AS ~lAY Bt PERMmED UNDER APPUCABLE STATE AND FEDERAL LAW WlTIIOUT
PRIOR ~oneE TO TIlE UNDERSIGNED.
C. The undersigned certifies that a representative of Lender specifically called the confession of judgment
provisions in the above document 10 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 SI0.000; 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.
Dated t~~ 1..1 2001 NEW WAY PACKAGING MACHlNER Y, INC.
bendschein
Dill h, j III
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
vs.
: NO.
NEW WAY PACKAGING MACHINERY,
INe.,
Defendant
: 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 verifY 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. e.S. Section
4904, relating to unsworn falsification to authorities.
PNC BANK, NATIONAL ASSOCIATION
Date: 5/1 (OS
By:
~wr
Eric D. Krimmel
Vice President
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
0u:l~~
PNCBANK,NATIONALASSOCIATION, : DOCKET NO. ()~ -J.4/,f
Plaintiff
vs.
NEW WAY PACKAGING MACHINERY, : CONFESSION OF JUDGMENT
INC.,
Defendant : PREVIOUSLY ASSIGNED TO: N/ A
To: New Way Packaging Machinery, Inc., Defendant
You are hereby notified that on (rb,;/ / /) , 2005, judgment by confession was
entered against you in the sum of $706,879.42 i the above-captIOned case.
12.;4
DATE:
s)it? /0-.5
a4/J~
Prothonotary
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 17013
(717) 249-3166 or 1-800-990-9108
I hereby certifY that the following is the address of the defendant stated in the certificate of
residence:
New Way Packaging Machinery, Inc.
210 North Bletlner Aven
Hanover, P 331
..
A, New Way Packaging Machinery, Inc., Demandado(s)
Por este medio sea avisado que en el dia de de 2005, un fallo por admision fue
registrado 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 SUFICIENTE DE P AGAR TAL SERVICIO, VA Y A
EN PERSONA A LLAME POR TELEFONO A LA OFICINA CUY A DIRECCION SE
ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR
ASISTENCIA LEGAL.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA 17013
(717) 249-3166 or 1-800-990-9108
Por este medio certifico que 10 siguiente es la direccion del demandado dicho en e1
certificado de residencia:
New Way Packaging Machinery, Inc
210 North Blettner Avenue
~O"~, PA l~ [~
Abogada(a) de Demandante(s)
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION, : DOCKET NO. OS' -~I..J!f
Plaintiff
vs.
{};u:L~1
NEW WAY PACKAGING MACHINERY, CONFESSION OF JUDGMENT
INC.,
Defendant : PREVIOUSLY ASSIGNED TO: N/A
NOTICES IN CONNECTION WITH JUDGMENTS BY CONFESSION
REQUIRED BY 42 Pa. C.S.A. S 2737.1 (Act 105 of2000)
To: New Way Packaging Machinery, 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 of Civil 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 Rule 2959 is attached to this Notice. You may also have to
comply with local rules of procedure in effect in the county where the judgment was entered.
If you do not file a petition challenging the judgment, the Plaintiff may take steps to
collect on the judgment by asking the Sheriff to seize your assets. 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 17013
(717) 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 confession or judgment entered against you, you are entitled to costs and reasonable attorney
fees as determined by the court.
Date: May 9, 2005
By:
rfEf & LlNDS.A Y
Ll~-
Geoffrey 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
Pennsvlvania Rule of Civil Procedure 2959 - Strikinl! off Judl!ment
(a)(1) Relief from a judgment by confession shall be sought by petition. Except as
provided in subparagraph (2), all grounds for relief whether to strike off the judgment or to open
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.l(c)(2) or Rule
2973 .1 (c), the petition shall be filed within thirty days after such service. Unless the defendant
can demonstrate that there were compelling reasons for the delay, a petition not timely filed shall
be denied.
(b) If the petition states prima facie grounds for relief the court shall issue a rule to show
cause and may grant a stay of proceedings. After being served with a copy of the petition the
plaintiff shall file an answer on or before the return day of the rule. The return day of the rule
shall be fixed by the court by local rule or special order.
(c) A party waives all 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 application to
strike off the judgment. If evidence is produced which in a jury trial would require the issues to
be submitted to the jury the court shall open the judgment.
(t) 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.
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA
CIVIL
PNCBANK,NATIONALASSOCIATION, : DOCKET NO. Df; -;2'-1IP G~l!0u.-,
Plaintiff /
vs.
NEW WAY PACKAGING MACHINERY, : CONFESSION OF JUDGMENT
INe.,
Defendant : PREVIOUSLY ASSIGNED TO: N/ A
NOTICE UNDER RULE 2958.1
OF JUDGMENT AND EXECUTION THEREON
NOTICE OF DEFENDANT'S RIGHTS
TO: New Way Packaging Machinery, 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 JUDGMENT AND PRESENT IT TO
A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED
ON YOU OR YOU MAY LOSE YOUR RIGHTS.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A
LA WYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN
PROVIDE YOU WITH INFORMATION ABOUT HIRING A LA WYER.
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.
Cwnberland County Bar Association
32 South Bedford Street
Carlisle, P A 17013
(717) 249-3166 or 1-800-990-9108
Date: May 9, 2005
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Respe t lIy su mJtte ,
::m if , ~ tR & LINDSA V
Geoffrey S. S uff, Esquire ID #24848
Matthew J. Eshelman, Esquire ID#72655
2109 Market Street, Camp Hill, P A 170 II
(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. OS- ~'1/p ec/<L~CZ/LYv-!
Plaintiff
vs.
NEW WAY PACKAGING MACHINERY, : CONFESSION OF JUDGMENT
INC.,
Defendant : 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, ID #72655
SAID IS, SHUFF, FLOWER & LINDSAY
2109 Market Street, Camp Hill, P A 17011
(717) 737-3405 (fax) 737-3407
Respectfully submitted,
Date: May 9, 2005
SAID F'~ ilR&LINDSAY
By: -
Geoffrey S. S uff, 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
: DOCKET NO. oS- ~'1lf e~LL';-~
: 7
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
vs.
NEW WAY PACKAGING MACHINERY, : CONFESSION OF JUDGMENT
INe.,
Defendant : 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, New Way Packaging
Machinery, Inc., in the above-captioned action is not presently on active or nonactive military
status.
Respectfully submitted,
Date: May 9, 2005
:1 S SHUF "T~R&LINDSAV
Geoffrey S. h f, Esquire ID #24848
Matthew 1. 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. DS'-dYt? e~:c <--;~
Plaintiff (
vs.
NEW WAY PACKAGING MACHINERY, : CONFESSION OF JUDGMENT
INC.,
Defendant : PREVIOUSLY ASSIGNED TO: N/ A
CERTIFICATE OF ADDRESSES
I hereby certify that the precise address of Plaintiff, PNC Bank, National Association, is
4242 Carlisle Pike, Camp Hill, Pennsylvania 17011; and that the last known address of the
Defendant, New Way Packaging Machinery, Inc., is 210 North Bletlner Avenue, Hanover,
Pennsylvania 17331.
Respectfully submitted,
Date: May 9, 2005
SAID , HUF , LO(W R & LINDSAY
By: Uv
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. 05-2418 CIVIL TERM
Plaintiff
vs.
NEW WAY PACKAGING MACHINERY, : CONFESSION OF JUDGMENT
INC.,
Defendant : PREVIOUSLY ASSIGNED TO: N/ A
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,
(J) directed to the sheriff of Adams County, Pennsylvania;
(2) against New Way Packaging Machinery, Inc., 210 North B1ettner Avenue, Hanover,
Pennsylvania 17331, Defendant; and
(3) against: Bank of Hanover, 6 York Street, Gettysburg, Pennsylvania J7325,
Gamishee;
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 ofthe 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: r~f
CERTIFICATION
This praecipe is based upon ajudgment 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,
SAIDIS, SHUFF, FLOWER & LINDSAY
By:
eof S. S uff, Esquire
me Co ID #24848
2109 Market Street
Camp Hill, PA 17011
(717) 737-3405
Attorneys for PNC Bank, National
Association
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WRIT OF EXECUTION and/or ATTACHMENT
COMMONWEALTH OF PENNSYLVANIA)
COUNTY OF CUMBERLAND)
NO 05-2418 Civil
CIVIL ACTION - LAW
TO THE SHERIFF OF ADAMS COUNTY:
To satisfy the debt, interest and costs due PNC BANK, NATIONAL ASSOCIATION, Plaintiff(s)
From NEW WAY PACKAGING MACHINERY, INC., 210 NORTH BLETTNER AVENUE,
HANOVER, PA 17331
(I ) You are directed to levy upon the property of the defendant (s)and to sell
(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
ACCOMP ANYING 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 himlher 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 5110/05 AT THE RATE OF $210.35 PER DAY
Atty's Comm %
Atty Paid $37.50
Plaintiff Paid
Date: SEPTEMBER 12, 2005
Due Prothy $1.00
Other Costs
(Seal)
By:
Deputy
REQUESTING PARTY:
Name GEOFFREY S. SHUFF, ESQUIRE
Address: SAIDIS, SHUFF, FLOWER & LINDSAY
2109 MARKET STREET
CAMP HILL, P A 17011
Attorney for: PLAINTIFF
Telephone: 717-737-3405
Supreme Court ID No. 24848
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
PNC BANK, NATIONAL
ASSOCIATION,
Plaintiff
No. 05-2418 Civil Term
v.
CONFESSION OF JUDGMENT
NEW WAY PACKAGING
MACHINERY, INC.,
Defendant
PREVIOUSLY ASSIGNED TO: N/A
ENTRY OF APPEARANCE
Please enter the appearance of the undersigned and Latsha Davis Yohe &
McKenna, P.c., on behalf of Garnishee, Bank of Hanover, in the above-captioned
matter.
Respectfully submitted,
LATSHA DAVIS YOHE & MCKENNA, P.c.
Dated: )D \~\o~
By
~?o-ln
Glenn R. Davis
Attorney 1. D. No. 31040
1700 Bent Creek Boulevard, Suite 140
Mechanicsburg, PA 17050
(717) 620-2424
Attorneys for Bank of Hanover, Garnishee
102642
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this date a true and correct copy
of the foregoing Entry of Appearance was served in the manner indicated upon
the following:
Service by first-class mail and facsimile addressed as follows:
Geoffrey S. Shuff, Esq.
Saidis, Shuff, Flower & Lindsay
2109 Market Street
Camp Hill, PA 17011
(717) 737-3407 (facsimile)
John M. Crabbs, Esq.
Crabbs & Crabbs
202 Broadway
Hanover, PA 17331
(717) 637-8234 (facsimile)
Dated: J (!;t, ~ JB uS"
f/~~b.-
Helen Samuels
Legal Secretary
102642
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
PNC BANK, NATIONAL
ASSOCIATION,
Plaintiff
No. 05-2418 Civil Term
v.
CONFESSION OF JUDGMENT
NEW WAY PACKAGING
MACHINERY, INC.,
Defendant
PREVIOUSLY ASSIGNED TO: NjA
NOTICE TO PLEAD
You are hereby notified to file a written response to the enclosed New
Matter within twenty (20) days from service hereof or a judgment may be
entered against you.
LATSHA DAVIS YOHE & MCKENNA, P.c.
Dated:~
By
G1...~
Glenn R. Davis
Attorney I. D. No. 31040
1700 Bent Creek Boulevard, Suite 140
Mechanicsburg, PA 17050
(717) 620-2424
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
PNC BANK, NATIONAL
ASSOCIATION,
Plaintiff
No. 05-2418 Civil Term
v.
CONFESSION OF JUDGMENT
NEW WAY PACKAGING
MACHINERY, INC.,
Defendant
PREVIOUSLY ASSIGNED TO: N/A
GARNISHEE, BANK OF HANOVER'S ANSWER TO
INTERROGATORIES TO GARNISHEE WITH NEW MATTER
1. No.
2. No.
3. No.
4. Yes. As of October 20, 2005, the Bank, Garnishee, held Checking
Account No. 160180 with a then balance of $376,937.47; however, on or about
that date a company payroll distribution was made by direct deposit [through
Automated Clearing House (" ACH")1 in the amount of $8,557.60. The Bank is
pursuing the reversal of these automatic transfers which are governed by rules
and regulations of ACH. As a result, the precise balance of the account is
presently not determinable.
5. No.
6. No.
7. See response to No.4 above.
8. No.
9. No.
NEW MATTER
10. Paragraph Nos. 1 through 9 above are incorporated herein by
reference as though set forth in full.
11. The Bank of Hanover, Garnishee herein, has no property or interest
of Defendant, New Way Packaging Machinery, Inc., in its possession or control
other than as set forth in the herein Answer to Plaintiffs Interrogatories.
12. American Mutual Liability Insurance Co. v. Zion & Klein, 49 A.2d
259 (1985), and Westmoreland County Industrial Development Authority v.
Allegheny County Board of Property Assessment, 723 A.2d 108 (1999), are
illustrative of the proposition that an award of counsel's fees is appropriate for a
garnishee under 42 Pa. C.S.A. S 2503, as this section is intended to reimburse an
innocent litigant for the expense made necessary by the conduct of his opponent.
13. Garnishee is entitled to an award of counsel's fees against Plaintiff.
14. Although counsel's fees have not yet been quantified, it is
anticipated fees in this matter will be at a minimum $450.00.
102574
2
WHEREFORE, Garnishee requests an award of counsel's fees under 42 Pa.
e.S.A. 9 2503 and against Plaintiff in the minimum amount of $450.00 and further
subject to future fee amounts should Garnishee be further involved in this
matter.
Respectfully submitted,
LATSHA DAVIS YOHE & MCKENNA, P.e.
Dated:~
By
('~..:Z~
Glenn R. Davis
Attorney I. D. No. 31040
1700 Bent Creek Boulevard, Suite 140
Mechanicsburg, PA 17050
(717) 620-2424
Attorneys for Bank of Hanover, Garnishee
102574
3
VERIFICATION
The undersigned hereby verifies that the statements of fact in the foregoing are
true and correct to the best of my Imowledge, informa.tion and belief. I l.mderstand that
any false statements therein are subject to the penalties contained in 18 Pa. C. S. S 4904,
relating to unsworn falsification to authorities.
Dated; 10 -Z?-CS-
,J~a~~
David Cherrington, Vice Pr sident
Deposit Operations
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this date a true and correct copy of the
foregoing Answer to Interrogatories to Garnishee With New Matter was served in the
manner indicated upon the following:
Service by first-class mail and facsimile addressed as follows:
Geoffrey S. Shuff, Esq.
Saidis, Shuff, Flower & Lindsay
2109 Market Street
Camp Hill, PA 17011
(717) 737-3407 (facsimile)
John M. Crabbs, Esq.
Crabbs & Crabbs
202 Broadway
Hanover, PA 17331
(717) 637-8234 (facsimile)
Dated: oet, J( JooS
1~~
Helen Samuels
Legal Secretary
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
* DOCKET NO. 05-2418 CIVIL TERM
*
*
vs.
*
*
NEW WAY PACKAGING MACHINERY, INC., * CONFESSION OF JUDGMENT
Defendant * PREVIOUSLY ASSIGNED TO: N/A
* RELATED CASE 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.
. Crabbs - 36809
roadway
Hover, PA 17331
(717) 637-9799
Attorney for Defendant,
New Way Packaging Machinery, 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.S.A. S4904 relating to unsworn
falsification to authorities.
Date: (/~((j /.1 j~
CERTIFICATE OF SERVICE
r-t
I hereby certify that on this ~ 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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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION
Plaintiff
* DOCKET NO. 05-2418 CIVIL TERM
*
*
vs.
*
*
NEW WAY PACKAGING MACHINERY, INC.
Defendant
* CONFESSION OF JUDGMENT
* PREVIOUSLY ASSIGNED TO: N/A
* RELATED CASE ASSIGNED TO
* J. BAILEY
PETITION TO OPEN JUDGMENT OR FOR EQUITABLE RELIEF
New Way Packaging Machinery, Inc., by its attorney, John M. Crabbs, seeks to
open the Judgment in the within case and alternatively asks the Court to exercise its
equitable powers to conform the Judgment by determining the true amount of the
underlying obligation, 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. Notice thereof was served on the Defendant by the Sheriff of Adams County,
Pennsylvania.
3. The date of such service, at least as of November 1, 2005, was not
ascertainable on the record in this matter as no return of service was filed.
4. The amount of the Judgment was, as set forth in the original Confession:
Principal
Other authorized items
Interest to May 9, 2005
Late Charges
Search Fee
Prepayment Fees
Mortgage Satisfaction Fee
Attorney's Fees
TOTAL:
$582,497.57
$ 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.
5. 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.
6. Indeed, Judgments were entered virtually simultaneously against Edward J.
Abendschein (obligor on the original debt) and NWI, Inc. and New Way Packaging
Machinery, Inc. (each as guarantor of the obligation).
7. Each of those corporations is wholly controlled and essentially wholly owned
by Edward J. Abendschein.
8. This Judgment was entered upon a Note which is secured by a Mortgage on
real estate. That Mortgage is the subject of a foreclosure action currently pending in
the Court of Common Pleas of Adams County, Pennsylvania in PNC Bank, National
Association vs. Edward J. Abendschein, 05-S-73.
9. It is believed by this Defendant, and on that belief averred, that collection of
prepayment fees in the amount of $12,123.01 is improper under the loan documents,
and that the Defendant is entitled to a reduction or cancellation of this amount.
10. It is believed, and on that belief averred, that the $63,088.72 claimed as
attorney's fees is improper, that it is based upon a formula and unrelated to the amount
of work involved and that the same should, by exercise of the equitable powers of the
Court, be appropriately adjusted to an amount which is fair and reasonable under the
law.
11. On or about October 20,2005, account number 160180 in the name of New
Way Packaging Machinery, Inc., in Bank of Hanover was garnished in an approximate
amount of $370,000.00. Plaintiff and Defendant are unclear about the meaning of
Paragraph 4 of the Answer of Bank of Hanover to Interrogatories in Garnishment. (It
was unclear to them whether the balance of $376,937.47 was inclusive or exclusive of a
payroll distribution in the amount of $8,557.60. It turns out that it was inclusive and that
the amount actually to be received by PNC Bank under this garnishment is less than
the $376,937.47. The differential, however, is less than $8,000.00 as some of those
funds have been reversed.)
12. On November 1,2005, Edward J. Abendschein delivered to counsel for PNC
Bank personal checks totaling $321,384.35.
13. The intention was to fully satisfy the full amount claimed by Plaintiff, thereby
obviating the need for further enforcement measures, allowing the business of New
Way Packaging Machinery, Inc. to continue and, allowing the actual amount due under
the loan documents to be agreed among the parties or determined by the court.
14. Defendant asks that this filing be accepted as timely, nunc pro tunc, based
upon the facts set forth below.
15. Service of documents in this case was made by leaving them with the
person in charge of the principal place of business of this Defendant.
16. At the time of receipt of these documents Defendant and the related parties
were attempting to negotiate a good faith settlement of the mortgage action with the
Plaintiff, PNC Bank in the underlying case which, had it occurred, would have rendered
these judgments moot.
17. In part, because of that negotiation, Defendant did not immediately respond
directly to the court.
18. At the same time Defendant was conferring with another attorney specifically
with respect to the possibility of a partial payment or offer, which would satisfy the
obligation to the bank while protecting Defendant's legal position with respect to other
matters.
19. When these papers were received Defendant recognized what they were,
but did not immediately apprehend that they had been filed in a county other than
Adams. In other words, knowing of the existence of the mortgage foreclosure
proceeding, recognizing that the judgments were entered upon the guarantee of that
obligation, Defendant apparently failed to recognize that the Plaintiff would use such a
tactic and overlooked the difference in the caption of the case.
20. The documents received in Defendant's home office were voluminous and it
was not observed that there were references to three separate judgments.
21. Had Defendant been aware of this fact, a Petition to Open or Strike would
have been filed in this case contemporaneously with the Petition filed in the related
VERIFICATION
I HEREBY VERIFY that the statements made in the foregoing 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. ~4904 relating to
unsworn falsification to authorities.
Date: AJov, i J.o{);
I
~
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Edward J. bendschein, President of
New Way Packaging Machinery, Inc.
case PNC Bank, National Association v. New Way Packaging Machinery, Inc., 05-2418
WHEREFORE, it is respectfully prayed that this Court 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 opened or equitably modified as to amount as heretofore set forth.
. Crabbs - 36809
roadway
over, PA 17331
(717) 637-9799
Attorney for Defendant,
New Way Packaging Machinery, Inc.
CERTIFICATE OF SERVICE
I hereby certify that on this ! O~vember, 2005, a true and
correct copy of the foregoing Petition to Open Judgment or for Equitable Relief 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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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIA nON,
Plaintiff
vs.
: DOCKET NO. 05-2418 CIVIL TERM
: CONFESSION OF JUDGMENT
: GARNISHMENT PROCEEDING
NEW WAY P ACKAGING MACHINERY, INC.,
Defendant
: PREVIOUSLY ASSIGNED TO: BAYLEY
REPLY OF PLAINTIFF, PNC BANK,
TO ANSWER OF GARNISHEE, BANK OF HANOVER
Plaintiff in the above-captioned matter, PNC Bank, National Association, caused a writ
of execution to be issued in the above-captioned matter on or about September 12, 2005,
directing the Sheriff of Adams County to attach the property of Defendant, New Way Packaging
Machinery, Inc., in the possession of the Garnishee, Bank of Hanover. Interrogatories to
Garnishee were served upon the Bank of Hanover on or about October 20, 2005 pursuant to Pa.
R.C.P. No. 3144. The Bank of Hanover, in turn, filed an Answer to Interrogatories to Garnishee
with New Matter, including a claim against the Plaintiff, pursuant to Pa. R.C.P. No. 3145(b)(3),
to which this Reply is made, as follows:
10. Admitted. Although it is submitted that as of November 4,2005, the balance of
the checking account of the Defendant in the Garnishee's possession was $371,626.79.
II. Admitted.
12. Denied as a conclusion oflaw to which no responsive pleading is required.
13. Denied. It is specifically denied that a Garnishee is entitled to an award of
counsel's fees against Plaintiff.
14. Denied. It is denied that counsel's fees amount to a minimum of $450.00 for the
purpose of reviewing and responding to Interrogatories to Garnishee, examining records to
determine what, if any, property of the Defendant is in the possession of the Garnishee, and
forwarding such property to the Plaintiff upon entry of judgment upon admission.
WHEREFORE, Plaintiff respectfully requests the Court enter judgment in favor of PNC
Bank and against Garnishee in the amount of $371,626.79, plus interest on the judgment, and to
deny Garnishee's demand for counsel's fees under 42 Pa. C.S.A. 9 2503, and for such other
relief as the Court deems just and appropriate.
;
Respectfully subry/itted,
/
S I F, FLOWER & LINDSAY
\dl' loft!. 'nC;
Date: ~
Geoffrey S. Shuff, Esquire ld No. 24848
Matthew J. Eshelman, Esquire Id No. 72655
2109 Market Street, Camp Hill, PA 17011
Telephone (7] 7) 737-3405 Fax 737-3407
Attorneys for Plaintiff, PNC Bank, N.A.
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
: DOCKET NO. 05-2418 CIVIL TERM
vs.
: CONFESSION OF JUDGMENT
: GARNISHMENT PROCEEDING
NEW WAY PACKAGING MACHINERY, INC.,
Defendant
: PREVIOUSLY ASSIGNED TO: BAYLEY
CERTIFICATE OF SERVICE
AND NOW, this ~ day of /lliJew~ 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 Garnishee, Bank of Hanover's Answer to Interrogatories
with New Matter as addressed below via United States Mail, postage prepaid, addressed as follows:
John M. Crabbs, Esquire
202 Broadway
Hanover, P A 17331
For Defendant New Way
Packaging Machinery, Inc.
Glenn R. Davis, Esquire
1700 Bent Creek Blvd., Ste 140
Mechanicsburg, P A 17050
For Garnishee Bank of Hanover
SAI
OWER & LlNDSA Y
By:
Geoffrey S. Shuff, Esquire ID #24848
Matthew J. Eshelman, Esquire ID #72655
2109 Market Street, Camp Hill, PAl 70 II
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
CUMBERLAND COUNTY, PENNSYLVANIA
PNC BANK, NATIONAL
ASSOCIATION,
Plaintiff
v.
NEW WAY PACKAGING
MACHINERY, INC.,
Defendant
No. 05-2418 Civil Term
CONFESSION OF JUDGMENT
PREVIOUSLY ASSIGNED TO: N/ A
GARNISHEE, BANK OF HANOVER'S SUPPLEMENTAL ANSWER TO
INTERROGATORIES TO GARNISHEE
AND NOW, COMES, Garnishee, Bank of Hanover, and files this supplemental
response to the answer filed on October 31, 2005, and represents in response to
Interrogatory No.4 as follows:
4. As of November 29, 2005, the Bank of Hanover, Garnishee, held Checking
Account No. 160180 with a balance of $500,636.13. There is an administrative fee of
$212.72 and legal fees of $522.11 claim against this amount by Garnishee.
Dated: 'U:r, \ ')tyo',~
I
103359
Respectfully submitted,
LATSHA DAVIS YOHE & MCKENNA, P.c.
By
G...~~
Glenn R. Davis
Attorney I. D. No. 31040
1700 Bent Creek Boulevard, Suite 140
Mechanicsburg, PA 17050
(717) 620-2424
Attorneys for Bank of Hanover, Garnishee
./
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VERIFICATION
The undersigned hereby verifies that the statements of fact in the
foregoing are true and correct to the best of my knowledge, information and
belief. 1 understand that any false statements therein are subject to the penalties
contained in 18 POI. C. S. ~ 4904, relating to unsworn falsification to authorities.
Dated:
/ z - 01- 2oQC;-
f)J~(~~
David Cherrington, Vice President
Deposit Operations
~
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this date a true and correct copy of the
foregoing Supplemental Answer to Interrogatories to Garnishee was served in the
manner indicated upon the following:
Service by first-class mail addressed as follows:
Geoffrey S. Shuff, Esq.
Saidis, Shuff, Flower & Lindsay
2109 Market Street
Camp Hill, PA 17011
John M. Crabbs, Esq.
Crabbs & Crabbs
202 Broadway
Hanover, PA 17331
Dated:
I'd- 11/05
,
IL~.
Helen Samuels
Legal Secretary
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MASON DIXON BUSINESS FORMS, INC. 330000213
DATE RECEIVED
DATE PROCESSED
SHERIFF'S DEPARTMENT
ADAMS COUNTY, PENNSYLVANIA j
COURTHOUSE,GETTYSBURG,PA17325
INSTRUCTIONS: See "INSTRUCTIONS FOR SERVICE OF PROCESS BY
THE SHERIFF" on the reverse of the last (No.5) copy of this form. Please
type or print 1egi)Iy, insuring readability of 811 copies.
Do not _ ony copioo. ACSO ENV.'
1. PLAINTlFF/SI 2. COURT NUMBER
PNC BANK NATIONAL ASSOCIATION 05-2418 Civil Term
3. DEFENDANTISI 4. TYPE OF WRIT OR COMPLAINT:
NEW WAY PACKAGING MACHINERY INC. Notice Under Rule 2958.1
5. NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC., TO SERVICE OR DESCRIPTION OF PROPERTY TO BE lEVIED, ATTACHED OR SOLD.
SHERIFF SERVICE
PROCESS RECEIPT, and AFFIDAVIT OF RETURN
SERVE
.
New Way Packaging Macbinery, Inc.
AT
6. ADDRESS (Street or RFD. Apartment No., City, Boro, Twp., Stale and ZIP CODE)
210 Nortb Blettner Avenue, Hanover, PA 17331
17
7. INDICATE UNUSUAL SERVICE: 0 PERSONAL 0 PERSON IN CHARGE 0 DEPUTIZE 0 CEAT. MAIL 0 REGISTERED MAllO POSTED t5?oTHetJl \)\
Now, , I, SHERIFF OF ADAMS COUNTY, PA., do hereby deputize th:ij'shetilf 01:'-] .
County to execute this Writ and make return therol according to law. This deplrt!ition:1j8lng
made at the request and risk 01 the plaintiff. .' -" T''''
SH~F OFAQ,~~ COUNTY
8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE.
-,-'
.-"(
NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: N.S. WAIVER OF WATCHMAN-Any deputy sheriff levying upon Of attaching any property ~er wifhb1 wril~Y leave
same without a watchman, in custody of whomever is found in possesston, after notifying person of levy or attachment. without llability on the part o'fsuch deputy or the sheriff to
any plaintiff herein lor any loss, destruction or removal of any such property before sheriff's sale thereof.
9. SIGNA fURE of ATTORNEY or other ORIGIHA TOR requesting service on behalf of:
G Sbff K~~
regory S. u , Esg. 0 DEFENDANT
10. TELEPHONE NUMBER
11. DATE
SPACE BELOW FOR USE F SHERIFF ONLY
(717) 737-3405
DON
13. Date Received
5-27-2005
14. Expiration I Hearing date
12. , acknowledge receipt of the writ
or complaint as indicated above.
SIGNATURE of Authorized ACSO Deputy or Clerk and Title
15. I hereby CERTIFY and RETURN that I 0 have personally served, iXhave 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 Bnd ATTESTED COPY therol.
16. 0 , 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 18. A person of suitable age and discretion Read Order
L. d E R .. & d 1 . b . f " then residing in the defendant's usual
ln a aton, eceptlonlst aut ln c arge at tlmc 0 servlce ~..."_D 0
19. Address of where served (complete only if different than shown above) (Street or RFO, Apartment No., City, Bora, Twp., 20. Date of Service 21. Time
State and ZIP CODE)
5/31/2005
2:35PM
1imIl1IiI~
22. ATTEMPTS
Pep.!nt. Date
23. Advance Costs
$150.00 Rn.Att
25.
Miles Dop.lnt.
Pep.!nt.
28. tIlOlIfllKJlIJO'A REFUND
$128.60 Ck. #12873
AFFIRMED and subscribed to before me this
N
day of
By . Sheriff) (PINM Print 01' Type)
Jonatban ankert
Slgnolu.. 01 _
RAYMOND W. NEWMAN
Date
5/31/2005
ProthollCUlj~Pubtlc
08'0
5 31/2005
SHERIFF OF ADAMS COUNTY
MY COMMISSION EXPIRES
I ACKNOWlEDGE RECEIPT OF THE SHERIFF'S RETURN SIGNATURE
OF AUTHORIZED ISSUING AUTHORITY AND nn!;
I 39. Date Received
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) (a) to the defendant by ( ) registered ( )certified'maIl, return receipt requested,
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said receipt being returned NOT signed by defendant, but with a notation by the Postal Authorities
that Defendant refused Io,.~t .the same. The returned ....ceipt and-enveklpe.i$ allached hereto
and made a part of thistlltUril. .
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( ) (b) To the defendllnt by ordinary mail addressed to defendant at same address, with the return
address of the Sheriff appeari'1g thereon, on the
I further certify that after fifteen (15) days from the mailing dat., I have not received
said envelope back from the Postal Authorities. A certificate of mailing. is hereto attached as a
,proof of ml!i1il'!g.
( 3) By p,ublication in the Adams Cllunty Legal Journal, a weekly publicali4ll1 !If gen'r8i circu!tlioll ,in
the County of Adams, Commonwealth of Pennsylvania, and the Gettysburg Times, a daily
newspaper published in the County of Adams, Commonwealth of Pennsylvania and having general
circulation in said County for
succeulve weeks of
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PNC BANK, NATIONAL
ASSOCIATION,
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
NEW WAY PACKAGING
MACHINERY, INC.,
DEFENDANT
05-2418 CIVIL TERM
AND NOW, this
ORDER OF COURT
1.-1"
~ 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,(//'//
~
~thew J. Eshelman, Esquire
For PNC Bank, National Association
J.PI'fn M. Crabbs, Esquire
>For Defendant
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PEIN~~SYLVA~.1..cn
CIVIL
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
* DOCKET NO. 05-2418 CIVIL TERM
*
vs.
*
*
NEW WAY PACKAGING MACHINERY, INC., * CONFESSION OF JUDGMENT
Defendant * PREVIOUSLY ASSIGNED TO: N/A
* RELATED CASE ASSIGNED TO J.
* BAILEY
ORDER
AND NOW, this b\- Day ~~05, 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 (.fdayS of this
date;
(3) the petitioner shall be decided under Pa.R.C.P. No. 206.7;
(4) depositions shall be completed within ......5' days of this date;
(5) argumerWim*eld on \AJ~\t" ~ , in Courtroom ..:JJ::: of the
County Courthouse~ ~ ~\.{:S- ~
(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, NA TIONAL ASSOCIATION,
Plaintiff
vs.
DOCKET NO. 05-2418 CIVIL TERM
NEW WAY PACKAGING
MACHINERY, INe.,
Defendant
CONFESSION OF JUDGMENT
: PREVIOUSLY ASSIGNED TO: J. BAYLEY
PLAINTiFF PNC BANK'S ANSWER TO RULE
IN RESPONSE TO DEFENDANT NEW WAY PACKAGING MACHINERY'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 New Way Packaging
Machinery'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 CAbendschein"). 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
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 fees by way of averments contained in petitions to
open the Judgments 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 di fferent 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, if PNC
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 New Way Packaging Machinery's Motion to Consolidate.
Respectfully submitted,
SAlOIS, SHUFF, FLOWER & LINDSAY
~,
By~ L'
Geo ey S. Shuff, Esquire ID #24lM
Matthew 1. Eshelman, Esquire ID #72655
Suzanne e. Hixenbaugh, Esquire ID #91641
2109 Market Street
Camp Hill, P A 170 II
Phone: 717-737-3405
Fax: 717-737-3407
Attorneys for Plaintiff, PNC Bank
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION, : DOCKET NO. 05-2418 CIVIL TERM
Plaintiff
vs.
NEW WAY PACKAGING
MACHINERY, INe.,
Defendant
: CONFESSION OF JUDGMENT
: PREVIOUSLY ASSIGNED TO: J. BAYLEY
CERTIFICATE OF SERVICE
ANDNOW,this(:)(/5"1 dayof'j}(lNKe'i>\ 2005, I, Matthew J. Eshelman, Esquire, of
the finn of Saidis, Shuff, Flower & Lindsay, P.e., hereby certify that I this day served a true and
correct copy of the Plaintiffs Answer to Defendant New Way Packaging Machinery's Petition to
Consolidate upon the party listed below via United States Mail, postage prepaid, addressed as
follows:
John M. Crabbs, Esquire
CRABBS & CRABBS
202 Broadway
Hanover, P A 17331
Respectfully submitted,
SAlDIS, SHUFF, FLOWER & LINDSAY
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By. ""&.?J'LllA' ,
Geofi S. Shuff, Esquire ill #24 4
Matthew J. Eshelman, Esquire ID #72655
2109 Market Street
Camp Hill, P A 17011
Phone: 717-737-3405
Fax: 717-737-3407
Attomeys for Plaintiff, PNC Bank
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
vs.
DOCKET NO. 05-2418 CIVIL TERM
NEW WAY PACKAGING
MACHINERY,INe.,
Defendant
CONFESSION OF JUDGMENT
PREVIOUSLY ASSIGNED TO: 1. BAYLEY
PLAINTIFF PNC BANK'S ANSWER TO RULE
fN RESPONSE TO DEFENDANT NEW WAY PACKAGING MACHINERY'S
PETITION TO OPEN OR FOR EQUITABLE RELIEF
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 New Way Packaging
Machinery's Petition To Open Or For Equitable Relief, and in support thereof avers as follows:
I. 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. Denied. A return of service was filed to the above-captioned matter on or about
November 28, 2005, and verbally proffered to the Defendant in open court on November I,
2005.
4. Admitted. It is admitted that the amount of the Judgment set forth in the original
confession is as set forth ofrecord on the docket.
5. Admitted. It is admitted that judgment was entered upon the guaranty by
Defendant of an obligation of Edward J. Abendschein.
6. Admitted. It is admitted that Judgments were entered on the same date against
Edward J. Abendschein (obligor on the Note), and NWI, Inc., and New Way Packaging
Machinery, Inc., (each as guarantor of the obligation of Abendschein).
7. Denied. PNC Bank is without sufficient knowledge to forn1 a belief as to whether
the companies are wholly owned or controlled by Defendant at this time.
8. Denied. It is denied that judgment was entered in the above-captioned matter
upon a Note.
9. Denied. The loan documents provide for the imposition of the prepayment
penalty, and it is denied that judgment for prepayment fees of$12,123.0l was improper as of the
date of the entry of judgment.
10. Denied. The amount of attorney's fees is authorized under the loan documents
and at law. Further, it is denied that the $63,088.72 claimed as attorney's fees is improper, unfair
or unreasonable under the facts and circumstances ofthe case.
] 1. Admitted in part and denied in part. It is admitted that on or about October 20,
2005, account number 160180 in the name of New Way Packaging Machinery, Inc., was
garnished in the matter ofPNC Bank, National Association, vs. New Way Packaging Machinery,
Inc., docketed to the above Court and term at docket number 05-2418, in the approximate
amount of $370,000.00. Judgment was entered on December 13, 2005, in favor of PNC Bank
and against Bank of Hanover, Garnishee, in the amount of $499,901.30. To date, funds have not
yet been received upon execution of the judgment.
12. Admitted in part and denied in part. It is admitted that on November 1, 2005,
personal checks were delivered to PNC Bank in the amount of $54,384.35 signed by Edward J.
Abendschein, and in the amount of $267,000.00 signed by one Judith Cohn, totaling
$321,384.35. However, a stop payment was issued by Judith Cohn on her checks, so it is denied
that PNC Bank ever received this amount.
13. Denied. PNC Bank is not aware of any intention of Defendant to fully satisfy the
amount claimed by PNC Bank.
14. Denied. PNC Bank asserts that this filing may not and should not be accepted
nunc pro tunc even based upon the facts as asserted by the Defendant. Despite the numerous
pleadings in this matter, the Defendant has never even offered a compelling reason for his
failure to file a timely response, as is required under Rule 2959(a)(3).
. '
15. Admitted. It is admitted that service of documents in the case was made by
leaving them with the person in charge of the principal place of business of the Defendant, as is
proper under Pa.R.C.P. No. 402(a)(2)(iii).
16. Denied. It is denied that Defendant has at any time attempted to negotiate a good
faith settlement ofthe claim ofPNC Bank.
17. Admitted in pali and denied In part. It is admitted that Defendant did not
immediately respond directly to the court, as is required under Pa.R.C.P. No. 2959(a)(3). It is
denied that the Defendant's failure to respond was the result of any negotiation between the
parties.
18. Denied. PNC Bank is without knowledge or information sufficient to form a
belief as to the veracity of the allegation that Defendant, at the time of service of the notice under
Rule 2956.1 (c )(2), was conferring with another attorney specifically with respect to the
possibility of a partial payment or offer, which would satisfy the obligation to the bank while
protecting Defendant's legal position with respect to other matters.
19. Denied. Defendant's averment is disingenuous, since Defendant failed to file any
pleading with the Court in either Cumberland or Adams County on a timely basis as required by
Rule 2959.
20. Denied. The notices, warnings, and executory pleadings required by statute, rule
and the loan documents themselves are indeed many. However, Abendschein's implication that
he, as a licensed attorney with an LLM in taxation, chief executive officer of at least two
corporations and sophisticated businessman, and obligor of commercial loans in the hundreds of
thousands of dollars, was ignorant of, or somehow relieved of, Defendant's responsibility to
respond to the directives and rules of procedure of this Court, is not a compelling reason for
Defendant's failure to respond as required by the Rules.
21. Admitted in part and denied in part. It is unknown whether Defendant may have
wished to file, or would have filed, Petitions to Open or Strike contemporaneously with the
Petition filed in PNC Bank vs. New Way Packaging Machinery, Inc. However, even if he had
done so, such petitions would have been filed late also, as was the untimely Petition to Open
filed in PNC Bank vs. NWI, Inc.
.. . ' '
WHEREFORE, Plaintiff, PNC Bank, N.A., respectfully requests that this Honorable
Court deny Defendant New Way Packaging Machinery's Motion to Open or for Equitable
Relief.
Respectfully submitted,
SAIDIS, SHUFF, FLOWER & LINDSAY
C. (jr! . . .
BY:"])(i~t. 1.,'+/{\tl"v{r?'U<\:i::',
Geoffre S. Shuff, Esquire ID #24848 <J -
Matthew 1. Eshelman, Esquire ID #72655
Suzanne C. Hixenbaugh, Esquire ID #91641
2109 Market Street
Camp Hill, PA 17011
Phone: 717-737-3405
Fax: 717-737-3407
Attorneys for Plaintiff, PNC Bank
. . '
717-737-3407 SA!D I S SHUFF FLOWER
:ng P02
DEe 21 '(:.f) 1rl:VJ1
IN THE em JRT UF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION, : DOCKET NO. 05-2418 CIVIL TERM
Plaintilf
vs
NEW WAY PACKAGING
MACHINERY, INC.,
Odendanl
: CONFESSION OF JUDGMENT
: PREVIOUSLY ASSIGNED TO: J. BAYLEY
VERIFICATION
I, tiie Krimmel. Vice President. for PNC Bank, National Association. being aulhorized to
do so on behalf of PNC Bank. National Association, hereby verify that the statements made in the
forej!,olng pleading are true and correct to the best of my information, knowledge llnd helief I
understand thai false statements herein are made subject to the penalties of 18 Pa. C.S. Section
4904, relating to lUlswom hils.tication to authorities.
PNC BANK, NATIONAL ASSOCIA nON
Date: J-' I'l (0 r
By; D. f . Q
Eric Krimmel
Vice President
TIHRI I'.V!I
. .
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION, : DOCKET NO. 05-2418 CIVIL TERM
Plaintiff
vs.
NEW WAY PACKAGING
MACHINERY, INC.,
Defendant
: CONFESSION OF JUDGMENT
: PREVIOUSLY ASSIGNED TO: 1. BAYLEY
CERTIFICATE OF SERVICE
. ~ ~ .
AND NOW, this(~ day of (Cio\kt" 2005, I, Matthew J. Eshelman, EsqUire, of
the firm of Saidis, Shuff, Flower & Lindsay, P.e., hereby certify that I this day served a true and
COITect copy of the Plaintiffs Answer to Defendant New Way Packaging Machinery's Petition to
Open or for Equitable Relief upon the party listed below via United States Mail, postage prepaid,
addressed as follows:
John M. Crabbs, Esquire
CRABBS & CRABBS
202 Broadway
Hanover, P A 17331
Respectfully submitted,
SAIDIS, SHUFF, FLOWER & LINDSAY
By(" t-{,H/ ,-., ~/;I
Geoffre S. Shuff, Esquire ID #248~
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
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PNC BANK, NATIONAL
ASSOCIATION,
PLAINTIFF
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
EDWARD J. ABENDSCHEIN,
DEFENDANT
: 05-2416 CIVIL TERM
---------------------------------------------------------------------------------------------------------------------
PNC BANK, NATIONAL
ASSOCIATION,
PLAINTIFF
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
NEW WAY PACKAGING
MACHINERY, INC.,
DEFENDANT
~5-2418 CIVil TERM
ORDER OF COURT
AND NOW, this
~l
day of December, 2005, the argument with
briefs currently scheduled for February 1, 2006, is cancelled and rescheduled to
Thursday, February 9, 2006, at 8:45 a.m., in courtroom~umber 2~ /V
BY}~e--Court,#
/ /
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/
Edgar B. Bayley, J.
Matthew J. Eshelman, Esquire
For PNC Bank, National Association
John M. Crabbs, Esquire
For Defendants
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
vs.
: DOCKET NO. 05-2418 CIVIL TERM
: CONFESSION OF JUDGMENT
NEW WAY PACKAGING MACHINERY, INC.,
Defendant : PREVIOUSLY ASSIGNED TO: BAYLEY
PRAECIPE
TO THE PROTHONOTARY:
Please mark the judgment entered against Garnishee, Bank of Hanover, in the above-
captioned action satisfied. The claim against Defendant, New Way Packaging Machinery, Inc.,
however, remains outstanding.
Date: December 28, 2005
By:
Geo rey S. Shuff, Esquire ID #24848
Matthew 1. Eshelman, Esquire ID #72655
2109 Market Street, Camp Hill, PA 17011
(717) 737-3405 (fax) 737-3407
Attorneys for Plaintiff, PNC Bank, N.A
J .
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
vs.
: DOCKET NO. 05-2418 CIVIL TERM
: CONFESSION OF JUDGMENT
: GARNISHMENT PROCEEDING
NEW WAY PACKAGING MACHINERY, INC.,
Defendant
: PREVIOUSLY ASSIGNED TO: BAYLEY
CERTIFICATE OF SERVICE
"A 1.-1 ,"'"
AND NOW, this ,6 day of ,~(,
2005, the undlersigned, of the firm of Saidis,
Shuff, Flower & Lindsay, P.C., hereby certify that I this day served a true and correct copy of the
Praecipe as addressed below via United States Mail, postage prepaid, addressed as follows:
John M. Crabbs, Esquire
202 Broadway
Hanover, P A 17331
For Defendant New Way
Packaging Machinery, Inc.
Glenn R. Davis, Esquire
1700 Bent Creek Blvd., Ste 140
Mechanicsburg, P A 17050
For Gamishee Bank of Hanover
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----
By:
Geoffrey S. Shuff, Esquire: ID #24848
Matthew 1. 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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PNC BANK, NATIONAL
ASSOCIATION,
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
NEW WAY PACKAGING
MACHINERY, INC.,
DEFENDANT
05-2418 CIVIL TERM
ORDER OF COURT
AND NOW, this
r
50
day of December, 2005, reviewing the petition
to consolidate and the answer filed thereto, the motion to consolidate by New Way
Packaging Machinery, Inc., IS DENIED.
:/(
Matthew J. Eshelman, Esquire
For PNC Bank, National Association
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John M. Crabbs, Esquire
For Defendant
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PNC BANK, NATIONAL
ASSOCIATION,
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
NEW WAY PACKAGING
MACHINERY, INC.,
DEFENDANT
05-2418 CIVIL TERM
AND NOW, this
ORDER OF COURT
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day of February, 2006, the petition of
defendant, New Way Packaging Machinery, Inc., to open a confessed judgment, IS
DENIED.1
By the C()urt;
Clayton W. Davidson, Esquire
For PNC Bank, National Associati
John M. Crabbs, Esquire
For Defendant
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'Defendant does not contest that the within judgment was in default and that it
was confessed for the proper principal amount. Defendant does contest the
amount of attorney fees, pre-payment fees, interest and some other charges.
Plaintiff acknowledges that these charges will fluctuate and cannot be
determined with finality until the judgment is satisfied. If defendant, upon
satisfaction, believes that the final charges then claimed by plaintiff are
excessive, it may petition to modify. See Dollar Bank v. Northwood Cheese
Co., 431 Pa. Super. 541 (1994).
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK NATIONAL ASSOCIATION,
Plaintiff
* DOCKET NO. 05-2418
* CIVIL TERM
*
vs.
*
* CONFESSION OF JUDGMENT
NEW WAY PACKAGING MACHINERY, INC., * PREVIOUSLY ASSIGNED TO:
Defendant * BAYLEY, J.
PETITION SEEKING STAY OF EXECUTION
Defendant, New Way Packaging Machinery, 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 ("Abendschein") 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 two
corporations controlled by Abendschein: NWI, Inc. CNWI"); and New Way Packaging
Machinery, Inc.CNew 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 $706,879.42, 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 a'l'J
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 $57,837.19 was
forwarded by Abendschein to PNC Bank.
16. On information and belief, during December, 2005, Plaintiff tlerein receiv,"d.
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 tho
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 Illany
times any amount remaining due and payable to Plaintiff.
20. Your Petitioner believes that the interests of justice would be served without
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
2 Broadway
Hanover, 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 unavaililbility 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 \0 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
~~
"
,
(0
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 1. ABENDSCHEIN,
DEFENDANT
: PREVIOUSLY ASSIGNED TO: J. GEORGE
NOTICE TO PLEAD
To: Edward 1. Abendschein, Defendant,
You are hereby notified to file a written response to the enclosed Plaintiff s Motion for
Summary Judgment v.ithin thirty (30) days from service hereof or a judgment may be entered
against you.
Respectfully submitted,
SAlOIS, SHUFF, FLOWER & LINDSAY
Date: I l ! ).. "I /1...> -{
By:
Geo e uff squire, ID #24848
Matthew J. Es man, Esquire ID #72655
2109 Market treet, Camp Hill, P A 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 ef seq., for the entry
of summary judgment in favor of Plaintiff, PNC, for the reliefrequested in Plaintiff's Complaint,
and avers in support thereof the following:
Procedural Historv
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 Memorandurn 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.)
i~
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 mortl!al!e 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 "ate 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.
II. 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.
.t
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 Ru1e
1035.4, attached hereto and incorporated herein by reference as Exhibit "1" is an affidavit in
support of the allegations contained in Paragraph 8 of Plaintiffs 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 Plaintiffs 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 Plaintiffs 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 Docwnents, 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
9l") 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 Defenda..'lt failed to admit or deny the specific averment contained
in Paragraph 11 of the Complaint that Act 6 is inapplicable at bar.
7"
_J.
Pa. R.C.P. No. 1029(b) provides that "averments III a pleading to which a
responsive pleading IS required are admitted when not denied specifically or by necessary
implication. "
24. Plaintiff belie',es 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 Plaintiffs 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.
if'
't
.~
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 of the 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 frorn Plaintiff and .., using financing from
Plaintiff."
.4
t
,
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 defme 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 1\;;0, 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.
,
1
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 $2l 0.35 per day, plus continuing attorney fees, expenses and charges, from
January II, 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,
SAlOIS, SHUFF, FLOWER & LINDSAY
Date:
'2-)1'/6 ]
By:
Ge ffre uff squire, ID #24848
Ma ew J. Eshe an, Esquire, ID #72655
2109 Market Street, Camp Hill, P A 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
CERTIFICATE OF SERVICE
AND NOW, this) / h dayofJ)1?UY'} ~"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
cia John M. Crabbs, Esq.
202 Broadway
Hanover, P A 17331
Respectfully submitted,
& LINDSAY
Date: /1-/ 1-1 ~)
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 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. ABEND SCHEIN,
DEFENDANT
: CIVIL ACTlON - LAW & EQU1TY
: Affidavit Partially in Support of and Partially
in Opposition to Plaintiffs 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 " ,......
=
August 16,2001 " -.\\
"-:-,
August 21, 2001 " -
September 21, 2001 " N r-
October 21,2001 " ,...... !'.-:;
- ,
November 21, 2001 " -.-
December 21,2001 " --
=
January 21,2002 " c'
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 2l, 2003 "
May 21,2003 "
June 21, 2003 "
July 21, 2003 "
August 21, 2003 "
September 21,2003 "
October 21,2003 "
January 7,2004 15,000.00
January 2l, 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 ofthese 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. 1 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 I, 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 written 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.
11. The branch manager assured me that I could skip equivalent payments, although she
never put that in writing.
12. On or about March 28,2003 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 1, 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.
18. 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 ofthe 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 of Mr. Maul, 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. Maul 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 r1 }b.{,
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 of the 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.
~'.~,i
r,~
',,'
..
~'.
.....
. " .
IN THE COURT OF COMMON PLEAS OF ADAMS COUNTY, PENNSYL V ANlA
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 Plaintiff's Motion for Summary
Judgment.
Defendant, Edward J. Abendschein, appearing pro se, asks this Court to sign the annexed
order:
1. Granting Plaintiff s 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$42S,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 of time or from a default
of the Defendant, which is a matter of fact 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 1, 2003 and
Defendant did not provide so until October 2003. Defendant adrnits 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. l.l to l.l5, 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 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 l5, 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 ofthe 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.
ST A IE 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 Plaintiffto 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.
_ r. ..
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 argwnent 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 of Mr. 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 Plaintiff received $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 of Mr. 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 ofMr. 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 RECENING 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 of Mr. 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.
. ., , .t
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 DEFAULT 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 umeasonably 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,
~
Date:~( ~
dward J. Abe dschein, Defendant Pro Se
88 Pollard Roa
Mountain Lakes, NJ 07046
717-968-2398
biged48@yahoo.com
II. ..
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
ORDER
Granting Plaintiffs Motion for Summary Judgment to the extent that Plaintiff is
owed 59 monthly payments of$7,2l5.33 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 1,2003 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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.,
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----------
PNC BANK, NATIONAL
ASSOCIATION,
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
NEW WAY PACKAGING
MACHINERY, INC.,
DEFENDANT
05-2418 CIVIL TERM
ORDER OF COURT
AND NOW, this (l.1) ,/"-...J:".-
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,
,
Geoffrey S. Shuff, Esquire
For PNC Bank, National Association
John M. Crabbs, Esquire
For Defendant
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CNIL
PNC BANK, NA TIONAL ASSOCIATION, : DOCKET NO. 05-2418 CNIL TERM
Plaintiff
vs.
NEW WAY PACKAGING MACHINERY, CONFESSION OF JUDGMENT
INC.,
Defendant : PREVIOUSLY ASSIGNED TO: N/A
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,
(I) directed to the Sheriff of Adams County, Pennsylvania;
(2) against New Way Packaging Machinery, Inc., 210 North Blettner Avenue, Hanover,
Pennsylvania 17331, Defendant; and
(3) against:
(a) Bank of Hanover, 6 York Street, Gettysburg, Pennsylvania 17325,
Garnishee; and
(b) Community Banks, 29 North Washington Street, G~:ttysburg,
Pennsylvanial7325, Gamishee;
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$21O.35 per day
Costs
$706,879.42
$ (to be added)
$ (to be added)
,
I certit)r that (a)
(b)
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 Sherilf Service Process Receipt.
Respectfully submitted,
McNees Wallace & Nurick LLC
Date: February 24, 2006
By:
/
Lcreoffr s. Shuff, Esquire
Sup me Court ID #24848
100 Pine Street
P.O. Box 1166
Harrisburg,Pennsylvania 17108-1166
(717) 237-5439
Attorneys for PNC Bank, National
Association
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WRIT OF EXECUTION and/or ATTACHMENT
COMMONWEALTH OF PENNSYLVANIA)
COUNTY OF CUMBERLAND)
NO 05-2418 Civil
CIVIL ACTION - LAW
TO THE SHERIFF OF AD.l\MS COUNTY:
To satisfy the debt, interest and costs due PNC BANK, NATIONAL ASSOCIATION, Plaintiff (s)
From NEW WAY PACKAGING MACHINERY, INC., 210 NORTH BLETTNER AVENUE,
HANOVER, PA 17331
(I) You are directed to levy upon the property of the defendant (s)and to sell
(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 -- COMMUNITY
BANKS, 29 NORTH WASHINGTON STREET, GETTYSBURG, PA 17325 -- SERVE THE
ACCOMPANYING INTERROGATORIES TO GARNISHEE UPON THE GARNISHEE AT THE
ADDRESS STATED ABOVE
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 fOlmd in the possession
of anyone other than a named garnishee, you are directed to notify hirn/her that he/she has been added as a
garnishee and is enjoined as above stated.
Amount Due $706,879.42
L.L.
Interest FROM 5/10/05 AT THE RATE OF $210.35 PER DAY
Atty's Cornm %
Atty Paid $85.90
Plaintiff Paid
Due Prothy $1.00
Other Costs
Date: FEBRUARY 27, 2006
,Q~
By:
(Seal)
Deputy
REQUESTING PARTY:
Name GEOFFREY S. SHUFF, ESQUIRE
Address: MCNEES WALLACE & NURICK LLC
100 PINE STREET
POBOX 1166
HARRISBURG, PA 17108-1166
Attorney for: PLAINTIFF
Telephone: 717-237-5439
Supreme Court 1D No. 24848
.
PNC BANK, NATIONAL ASSOCIATION,: IN THE COURT OF COMMON PLEAS,
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
vs.
CASE NO. 05-2418
NEW WAY PACKAGING MACHINERY, :
INC.,
Defendant
CIVIL ACTION - LAW
PNC BANK, NATIONAL ASSOCIATION'S RESPONSE IN OPPOSITION TO NEW
WAY PACKAGING MACHINER, INC.'S REQUEST TO STAY EXECUTION
1. 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. NWI'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 umeasonab1y refused to
acknowledge his obligation to pay the indebtedness.
2
.
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.
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 maybe 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 part 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 forreliefshould be granted to stop any execution on the
judgments entered in Cumberland County, Pennsylvania, or that the value ofMr. 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 and/or 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
3
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,
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 if there 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
4
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
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 Jourts 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:
Clayto W. Davi on, 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
Attorneysfor 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, PA 17331
6
VERIFICATION
I, Eric Krimmel, Vice President ofPNC Bank, National Association, verify that I am
authorized to make this verification on behalf of PNC 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.
[~/" Q
Eric Krimmel
Vice President
(- 1'-_'
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CNIL
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
DOCKET NO. 05-2418 CNIL TERM
vs.
NEW WAY PACKAGING MACHINERY, : CONFESSION OF JUDGMENT
INC.,
Defendant : PREVIOUSLY ASSIGNED TO: N/ A
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 Cumberland County, Pennsylvania;
(2) against New Way Packaging Machinery, Inc., 210 North Blettner A venue, Hanover,
Pennsylvania 17331, Defendant; and
(3) against:
(a) Wachovia Bank, Carlisle financial Center, 604 E. High Street, Carlisle,
Pennsylvania 17013, 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)
..1
.-.
I certitY that (a)
(b)
Date: March 15, 2006
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,
McNees Wallace & Nurick LLC
7
By:
Geof: e . uff, Esquire
(_5uPretne Court ID #24848
100 Pine Street
P.O. Box 1166
Harrisburg, P A 17108-1166
(717) 237-5439
Attorneys for PNC Bank, N. A.
C/
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WRIT OF EXECUTION and/or ATTACHMENT
COMMONWEALTH OF PENNSYLVANIA)
COUNTY OF CUMBERLAND)
NO 05-2418 Civil
CIVIL ACTION - LAW
TO THE SHERIFF OF CUMBERLAND COUNTY:
To satisfy the debt, interest and costs due PNC BANK, NATIONAL ASSOCIATION, Plaintiff (s)
From NEW WAY PACKAGING MACHINERY, INC., 210 NORTH BLETTNER A VENUE,
HANOVER, PA 17331
(1) You are directed to levy upon the property of the defendant (s)and to sell
(2) You are also directed to attach the property of the defendant( s) not levied upon in the possession
of WACHOVIA BANK, CARLISLE FINANCIAL CENTER, 604 E. HIGH STREET, CARLISLE,
PA 17013 - SERVE THE ACCOMPANYING INTERROGATORIES TO GARNISHEE UPON
THE GARNISHEE AT THE ADDRESS STATED
GARNlSHEE(S) as follows:
and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined horn
paying any debt to or for the account ofthe defendant (s) and from delivering any property of the defendant
(s) or otherwise disposing thereof;
(3) Ifproperty 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
LL
Interest FROM 5/10/05 AT THE RATE OF $210.35 PER DAY
Arty's Comm %
Due Prothy $1.00
Other Costs
Atty Paid $101.40
Plaintiff Paid
Date: MARCH 16, 2006
k/ 12~~ j~.~
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Deputy
(Seal)
REQUESTING PARTY:
Name GEOFFREY S. SHUFF, ESQUIRE
Address: MCNEES WALLACE & NURICK LLC
100 PINE STREET
POBOX 1166
HARRISBURG, PA 17108-1166
Attorney for: PLAINTIFF
Telephone: 717-237-5439
Supreme Court ID No. 24848
.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
PNC BANK, NATIONAL
ASSOCIATION,
Plaintiff
No. 05-2418 Civil Term
v.
CONFESSION OF JUDGMENT
NEW WAY PACKAGING
MACHINERY,INC.,
Defendant
PREVIOUSLY ASSIGNED TO: N( A
NOTICE TO PLEAD
You are hereby notified to file a written response to the enclosed New Matter
within twenty (20) days from service hereof or a judgment may be entered against you.
LATSHA DAVIS YOHE & MCKENNA, P.c.
Dated:
?J/)oJo~
/ I
By
~" ....:7Qub
Glenn R. Davis
Attorney 1. D. No. 31040
1700 Bent Creek Boulevard, Suite 140
Mechanicsburg, PA 17050
(717) 620-2424
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
PNC BANK, NATIONAL
ASSOCIATION,
Plaintiff
No. 05-2418 Civil Term
v.
CONFESSION OF JUDGMENT
NEW WAY PACKAGING
MACHINERY,INC.,
Defendant
PREVIOUSLY ASSIGNED TO: NjA
GARNISHEE, BANK OF HANOVER'S ANSWER TO
INTERROGATORIES TO GARNISHEE WITH NEW MATTER
1. No.
2. No.
3. No.
4. Yes. As of March 17,2006, the Bank of Hanover, Garnishee, held
Checking Account No. 160180 in the name of Defendant with the then balance of
$67,246.31; however, since that time, additional funds have been deposited into the
account and the balance is now $164,005.47. The Bank additionally holds Checking
Account No. 9040019807 with a negative balance of $447.78.
5. No.
6. No.
7. No.
8. No.
9. No.
..
NEW MATTER
10. Paragraph Nos. 1 through 9 above are incorporated herein by reference as
though set forth in full.
11. The Bank of Hanover, Garnishee herein, has no property or interest of
Defendant, New Way Packaging Machinery, Inc., in its possession or control other than
as set forth in the herein Answer to Plaintiff's Interrogatories.
12. On or about October 20, 2005, the Bank of Hanover was served with a
prior Writ of Execution and accompanying Interrogatories which were issued by PNC
Bank, National Association indicating the identical sum now alleged to be due,
$706,879.42.
13. On or about October 31, 2005, as supplemented December 2, 2005, the
Bank of Hanover filed an Answer to Interrogatories.
14. On December 13, 2005, Plaintiff praeciped for the entry of judgment upon
admission against the Bank of Hanover in the amount of $499,901.30.
15. By check dated December 19, 2005, No. 1182174, the Bank of Hanover paid
over to Plaintiff the amount of $499,901.30 in full and complete satisfaction of the
aforementioned judgment.
16. By praecipe served December 28, 2005, Plaintiff marked the judgment
against the Bank of Hanover satisfied.
17. The Bank of Hanover is entitled to an award of counsel's fees under 42 Pa.
c.S.A. S 2503 as this section is intended to reimburse an innocent litigant for the expense
made necessary in such matters.
106368
2
..
18. Although counsel's fees have not yet been quantified, it is anticipated fees
in this matter will be a minimum of $450.00.
WHEREFORE, Garnishee requests an award of counsel's fees under 42 Pa. C.S.A.
S 2503 and against Plaintiff in the minimum amount of $450.00 and further subject to
future fee amounts should Garnishee be further involved in this matter.
Respectfully submitted,
LA TSHA DAVIS YOHE & MCKENNA, P.c.
Dated: ~ ~ ~
By
Cft,o..:?RJJo
Glenn R. Davis
Attorney 1. D. No. 31040
1700 Bent Creek Boulevard, Suite 140
Mechanicsburg, PA 17050
(717) 620-2424
Attorneys for Bank of Hanover, Garnishee
106368
3
,
VERIFICATION
The undersigned hereby verifies that the statements of fact in the foregoing are
true and correct to the best of my knowledge, information and belief. I understand that
any false statements therein are subject to the penalties contained in 18 Pa, C. S. S 4904,
relating to unswom falsification to authorities.
Dated: 3-30- 2 Co I:.
Da~~~~
Deposit Operations
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this date a true and correct copy of the
foregoing Answer to Interrogatories to Garnishee With New Matter was served via
first-class United States mail, postage prepaid, upon the following:
Geoffrey S. Shuff, Esq.
McNees Wallace & Nurick LLP
100 Pine Street
P. O. Box 1166
Harrisburg, PA 17108-1166
John M. Crabbs, Esq.
Crabbs & Crabbs
202 Broadway
Hanover, PA 17331
Dated:1A #t/;v :? <1) Joe G
1~"~
Legal Secretary
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CNIL
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
vs.
: DOCKET NO. 05-2418 CNIL TERM
: CONFESSION OF JUDGMENT
: GARNISHMENT PROCEEDING
NEW WAY PACKAGING MACHINERY, INC.,
Defendant
: PREVIOUSLY ASSIGNED TO: N/ A
REPLY OF PLAINTIFF, PNC BANK, NATIONAL ASSOCIATION,
TO NEW MATTER IN GARNISHEE, BANK OF HANOVER'S
ANSWER TO INTERROGATORIES
Plaintiff in the captioned matter, PNC Bank, National Association, caused a Writ of
Execution to be issued in the captioned matter on or about February 27, 2006, directing the
Sheriff of Adams County to attach the property of Defendant, New Way Packaging Machinery,
Inc., in the possession of the Garnishee, Bank of Hanover. Interrogatories to Garnishee were
served upon the Bank of Hanover on or about March 8, 2006, pursuant to Pa. R.C.P. No. 3144.
The Bank of Hanover, in turn, filed an Answer to Interrogatories to Garnishee with New Matter,
including a claim against the Plaintiff, pursuant to Pa. R.C.P. 3145(b)(3), to which this Reply is
made, as follows:
10. Denied. Paragraphs 1 through 9 require no response by Plaintiff.
11. Denied. The Interrogatories are continuing Interrogatories, so since the time of
Garnishee's Answer it is submitted that the balance of the account of the Defendant in the
Garnishee's possession may have increased, and strict proof in support of Garnishee's allegation
is demanded.
12. Admitted in part, denied in part. The Answer is admitted, except that the Sheriff's
Return states that service was made on October 19, 2005. However, it is denied that the Answer
is in any way relevant to the current Interrogatories.
13. Admitted in part, denied in part. The Answer is admitted, except that the Plaintiff
is without knowledge sufficient to form a belief regarding the accuracy of the dates contained
therein. However, it is denied that the Answer is in any way relevant to the current
Interrogatories.
14. Admitted in part, denied in part. It is admitted that the Plaintiff filed a Praecipe
for Judgment Upon Admission on December 13, 2005. However, it is denied that the Answer is
in any way relevant to the current Interrogatories.
15. Admitted in part, denied in part. It is admitted that the Plaintiff received
$499,901.30 as a result of the previous judgment for garnishment against Garnishee. However, it
is denied that the Answer is in any way relevant to the current Interrogatories.
16. Admitted in part, denied in part. A Praecipe to satisfy the judgment for
garnishment against Garnishee only was filed on December 30, 2005. However, it is denied that
the Answer is in any way relevant to the current Interrogatories.
17. Denied. Garnishee's Answer is a conclusion of law to which no responsive
pleading is required.
18. Denied. It is denied that counsel's fees amount to a minimum of $450.00 for the
purpose of reviewing and responding to Interrogatories to Garnishee, examining records to
determine what, if any, property of the Defendant is in the possession of the Garnishee, and
forwarding such property to the Plaintiff upon entry of judgment upon admission.
WHEREFORE, Plaintiff respectfully requests the Court enter judgment in favor of PNC
Bank, National Association, and against Garnishee (1) in the amount of $164,005.47, plus the
amount of any additional funds that have been or are deposited in the subject account before the
entry of judgment against Garnishee, plus interest on the judgment, and (2) denying Garnishee's
demand for counsel's fees from the Plaintiff under 42 Pa. C.S.A. 92503, and (3) granting such
other relief for the Plaintiff as the Court deems just and proper.
Respectfully submitted,
McNees WaUace & Nurick LLC
Date: April 18, 2006
By:
/' 7/7
7Geof&~. Shuff, Esquire
lSupreme Court ID #24848
100 Pine Street, PO Box 1166
Harrisburg, PA 17108-1166
(717) 237-5439
Attorneys for PNC Bank, National Association
7
/
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA
CNIL
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
vs.
: DOCKET NO. 05-2418 CNIL TERM
: CONFESSION OF JUDGMENT
: GARNISHMENT PROCEEDING
NEW WAY PACKAGING MACHINERY, INC.,
Defendant
: PREVIOUSLY ASSIGNED TO: N/A
CERTIFICATE OF SERVICE
AND NOW, this 18th day of April, 2006, I, Geoffrey S. Shuff, Esquire, of the firm of
McNees Wallace & Nurick LLC, hereby certitY that I this day served a true and correct copy of the
Reply of Plaintiff, PNC Bank, National Association, to New Matter in Garnishee, Bank of
Hanover's Answer to Interrogatories, upon the persons identified below by United States Mail,
postage prepaid, addressed as follows:
John M. Crabbs, Esquire
202 Broadway
Hanover,PA 17331
For Defendant New Way
Packaging Machinery, Inc.
Glenn R. Davis, Esquire
1700 Bent Creek Blvd., Ste 140
Mechanicsburg, P A 17050
For Garnishee Bank of Hanover
Respectfully submitted,
McNees Wallace & Nurick LLC
By:
/:V /
/,"7./
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// ~/'.
(~s:oitfey S. Shuff, Esquire
. Supreme C6urt ill #24848
100 Pine Street, PO Box 1166
Harrisburg, P A 17108-1166
(717) 237-5439
Attorneys for PNC Bank, National Association
-,'
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SIRLIN GALLOGLY & LESSER, P.c.
By: Jon C. Sirlin, Esquire
Identification No.: 17498
1529 Walnut Street, Suite 600
Philadelphia, PA 19102
(215) 864-9700
Attorney for Garnishee
PNC BANK, NATIONAL ASSOCIA nON
: COURT OF COMMON PLEAS
: COUNTY OF CUMBERLAND
VS.
NEW WAY PACKAGING MACHINERY, INC. : NO. 05-2418
and
W ACHOVIA BANK, N.A.,
GARNTSHFF
ENTRY OF APPF.ARANCF.
TO THE PROTHONOTARY:
Kindly enter my appearance on behalf of Wachovia Bank, N.A., Garnishee, in the
above-captioned matter.
~-
Date:
-
-----
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK., NATIONAL ASSOCIATION, : DOCKET NO. 05-2418 CIVIL TERM
Plaintiff
vs. : CONFESSION OF JUDGMENT
: GARNISHMENT PROCEEDING
NEW WAY PACKAGING MACHINERY, INC.,
Defendant : PREVIOUSLY ASSIGNED TO: N/ A
PRAECIPE
TO THE PROTHONOTARY:
Please dissolve the attachment of Defendant, New Way Packaging Machinery, Inc.'s
property in the possession ofWachovia Bank as Garnishee in the above captioned matter.
Respectfully submitted,
McNees Wallace & Nurick LLC
Date: April 25, 2006
By:
G ffrey&;< ff, ESquire
u r~e Court ID"#24848
100 Pine Street~.,f>O Box 1166
Harrisburg, P A 17108-1166
(717) 237-5439
Attorneys for 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. 05-2418 CIVIL TERM
Plaintiff
vs. : CONFESSION OF JUDGMENT
: GARNISHMENT PROCEEDING
NEW WAY PACKAGING MACHINERY, INC.,
Defendant : PREVIOUSLY ASSIGNED TO: N/ A
PRAECIPE
TO THE PROTHONOTARY:
Please dissolve the attachment of Defendant, New Way Packaging Machinery, mc.'s
property in the possession of Community Banks as Garnishee in the above captioned matter.
Respectfully submitted,
McNees Wallace & Nurick LLC
Date: Apri125, 2006
By:
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7 G . Shuff. squire
Lsupr'eme Court #24848
100 Pine Street, PO Box 1166
Harrisburg, P A 17108-1166
(717) 237-5439
Attorneys for PNC Bank, National Association
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
PNC BANK, NATIONAL
ASSOCIATION,
Plaintiff
No. 05-2418 Civil Term
v.
CONFESSION OF JUDGMENT
NEW WAY PACKAGING
MACHINERY, INC.,
Defendant
PREVIOUSLY ASSIGNED TO: NfA
GARNISHEE, BANK OF HANOVER AND TRUST COMPANY'S
SUPPLEMENTAL ANSWER TO INTERROGATORIES TO GARNISHEE
AND NOW, COMES, Garnishee, Bank of Hanover and Trust Company, and files
this supplemental response to the answer filed April 3, 2006, and represents the
response to Interrogatory No.4 as follows:
4. As of April 3, 2006, the Bank of Hanover and Trust Company, Garnishee,
held Checking Account No. 160180 in the name of Defendant with a then balance of
$164,005.47. There is an administrative fee of $212.72 and legal fees of $358.76 claimed
by Garnishee, Bank of Hanover and Trust Company, against this amount.
Respectfully submitted,
LATSHA DAVIS YOHE & MCKENNA, P.c.
Dated:~
By
C'~7.~
Glenn R. Davis
Attorney I. D. No. 31040
1700 Bent Creek Boulevard, Suite 140
Mechanicsburg, P A 17050
(717) 620-2424
Attorneys for Bank of Hanover and Trust Company,
Garnishee
107169
.J
VERIFICATION
The undersigned hereby verifies that the statements of fact in the foregoing are
true and COrrect to the best of m.y knowledge, information and belief. I undel'stand that
any false statements therein are subject to the penalties contained in 18 Pa. C. S. S 4904/
relating to unsworn falsification to authorities.
Dated: L/- 26- 2606
David Cherrington, Vice P esident
Deposit Operations
107169
.. ..
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this date a true and correct copy of the
foregoing was served via first-class United States mail, postage prepaid, upon the
following:
Geoffrey S. Shuff, Esq.
McNees Wallace & Nurick LLP
100 Pine Street
P. O. Box 1166
Harrisburg, PA 17108-1166
John M. Crabbs, Esq.
Crabbs & Crabbs
202 Broadway
Hanover, PA 17331
Dated:
LJPC;8j,
1L~
Helen Samuels
Legal Secretary
107169
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SIRIj,IN GALLOGLY & LESSER, P.C.
By: Jon C. Slrlin, Esquire
Identification No.: 17498
1529 Walnut Street, Suite 600
Philadelphia, PA 19102
(215) 864-9700
Attorney for Garnishee
PNC BANK, NATIONAL ASSOCIATION
: COURT OF COMMON PLEAS
: COUNTY OF CUMBERLAND
vs.
NEW WAY PACKAGING MACHINERY, INC. : NO. 05-2418
and
W ACHOVIA BANK, N.A.,
GARNISHEE
ANSWF,RS TO TNTFRROGA TORTRS TN A TT ACHMRNT
TO: PNC BANK, NATIONAL ASSOCIATION, Plaintiff
1. No.
2. No, Defendant has no relationship with Wachovia Bank, N.A,
3. - 6. No.
7. See answer to number two above.
Dated:
~
Legill urua. r'~III~
104 Independence Mall East
11th Floor - PA4418
Philadelphia, PA 19106
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""W'"ACHOVIA
,
VERIFICATION
Kathleen Gormley, being duly sworn according to law. deposes and says that she is the
Writ of Execution Administrator of Wachovia National Bank, Garnishee herein, and
verifies that the statements made in the foregoing Answers to Interrogatories are true
and correct to the best of her knowledge. Said Garnishee understands that false
statements herein are made subject to penalties of 18 Pa. C.S. Section 4904, relating to
sworn falsification to authorities.
~~
Kathleen G~rmley
Manager .
Dated: Y 2,;7 ----0 J.,
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
PNC BANK, NATIONAL
ASSOCIATION,
Plaintiff
No. 05-2418 Civil Term
v.
CONFESSION OF JUDGMENT
NEW WAY PACKAGING
MACHINERY, INC.,
Defendant
PREVIOUSLY ASSIGNED TO: N/A
GARNISHEE, BANK OF HANOVER AND TRUST COMPANY'S
SECOND SUPPLEMENTAL ANSWER TO INTERROGATORIES TO
GARNISHEE
AND NOW, COMES, Garnishee, Bank of Hanover and Trust Company
("Bank"), and files this supplemental response to its answer filed April 3, 2006,
and it first supplement answer filed April 27, 2006, and represents in response to
Interrogatory No.4 as follows:
4. As of May 9, 2006, the Bank held Checking Account No. 160180 in
the name of Defendant with a then balance of $333,340.50. The Bank additionally
holds various other checking accounts, none of which contain funds.
-
There is an administrative fee of $212.72 claimed against this account and legal
fees of $643.76 claimed by Garnishee, Bank of Hanover and Trust Company,
against this Writ.
Respectfully submitted,
LATSHA DAVIS YOHE & MCKENNA, P.c.
Dated:
5/11/06
I
By
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Glenn R. Davis
Attorney 1. D. No. 31040
1700 Bent Creek Boulevard, Suite 140
Mechanicsburg, PA 17050
(717) 620-2424
Attorneys for Bank of Hanover and Trust
Company, Garnishee
107622
2
VERIFICATION
The undersigned hereby verifies that the statements of fact in the foregoing are
true and correct to the best of my knowledge, information and belief. I understand that
any false statements therein are subject to the penalties contained in 18 Pa. C. S. ~ 4904,
relating to unsworn faIaification to authorities.
Dated:
5"- IZ- Zoo {.
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Deposit Operations
'-
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this date a true and correct copy of the
foregoing was served via first-class United States mail, postage prepaid, upon the
following:
Geoffrey S. Shuff, Esq.
McNees Wallace & Nurick LLP
100 Pine Street
P. O. Box 1166
Harrisburg, PA 17108-1166
John M. Crabbs, Esq.
Crabbs & Crabbs
202 Broadway
Hanover, PA 17331
Dated~ I'd J OoOb
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Helen Samuels
Legal Secretary
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CNIL
PNC BANK, NATIONAL ASSOCIATION, : DOCKET NO. 05-2418 CNIL TERM
Plaintiff
vs.
NEW WAY PACKAGING MACHINERY,
INC.,
: CONFESSION OF JUDGMENT
: GARNISHMENT PROCEEDING
Defendant
: PREVIOUSLY ASSIGNED TO: N/ A
PRAECIPE FOR JUDGMENT UPON ADMISSION
To the Prothonotary:
Please enter judgment in favor of the Plaintiff and against the Garnishee, Bank of Hanover, in the
amount of$223,080.50, for the following property of the Defendant:
Any and all funds found in Checking Account No. 160180 in the name of New Way Packaging
Machinery, Inc., identified in the Supplemental Answer to Interrogatories filed by Bank of
Hanover, not to exceed $223,080.50.
Garnishee admitted in the Supplemental Answer to Interrogatories that it was in possession of
said property.
Respectfully submitted,
McNees Wallace & Nurick LLC
Date: May 112006
By:
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA
CNIL
PNC BANK, NATIONAL ASSOCIATION, : DOCKET NO. 05-2418 CML TERM
Plaintiff
vs.
NEW WAY PACKAGING MACHINERY,
INC.,
: CONFESSION OF JUDGMENT
: GARNISHMENT PROCEEDING
Defendant
: PREVIOUSLY ASSIGNED TO: N/ A
NOTICE OF JUDGMENT UPON ADMISSION
TO: Bank of Hanover
You are hereby notified that on fZ'd t I /(
judgment has been entered against you in the captioned c e:
, 2006, the following
Judgment in favor of PNC Bank, National Association, Plaintiff, and against Bank of
Hanover, Garnishee in the amount of $223,080.50. Judgment is entered pursuant to Pa. R.C.P.
3146(b), Garnishee having admitted in the Second Supplemental Answer to Interrogatories to
Garnishee that it was in possession of said property.
Dated:
Sin/ufo
~!
I hereby certitY that the proper person/entities to receive this notice under Pa. R.C.P. 236 are:
Bank of Hanover
One West Market Street
York,PA 17041
Glenn R. Davis, Esquire
LATSHA, DAVIS, YOHE & MCKENNA, P.c.
1700 Bent Creek Boulevard, Suite 140
Mechanicsburg, P A 17050
Respectfully submitted,
McNees WaUace & Nurick LLC
Date: May &2006
By:
eoffre uff, uire
e Court #24848
100 Pine Street, PO Box 1166
Harrisburg, P A 17108-1166
(717) 237-5439
Attorneys for PNC Bank, National Association
1
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
vs.
: DOCKET NO. 05-2418 CIVIL TERM
NEW WAY PACKAGING MACHINERY, INC.,
Defendant : PREVIOUSLY ASSIGNED TO: BAYLEY
: CONFESSION OF JUDGMENT
PRAECIPE
TO THE PROTHONOTARY:
Please mark the judgment entered against Garnishee, Bank of Hanover, in the above-
captioned action satisfied. The claim against Defendant, New Way Packaging Machinery, Inc.,
however, remains outstanding.
Respectfully submitted,
McNees Wallace & Nurick LLC
Date: May ~ 2006
By:
huff, Esquire
000 ill #24848
100 p. e Street, PO Box 1166
H sburg, P A 17108-1166
(717) 237-5439
Attorneys for PNC Bank, National Association
t
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CNIL
PNCBANK, NATIONAL ASSOCIATION, : DOCKET NO. 05-2418 CNIL TERM
Plaintiff
vs. : CONFESSION OF JUDGMENT
: GARNISHMENT PROCEEDING
NEW WAY PACKAGING MACHINERY, INC.,
Defendant : PREVIOUSLY ASSIGNED TO: BAYLEY
CERTIFICATE OF SERVICE
AND NOW, this Jb,tday of ~ 2006, the undersigned, of the finn of McNees
Wallace & Nurick lie, hereby certity that ~ L d';served a true and correct copy of the Praecipe
as addressed below via United States Mail, postage prepaid, addressed as follows:
John M. Crabbs, Esquire
202 Broadway
Hanover, P A 17331
For Defendant New Way
Packaging Machinery, Inc.
Glenn R. Davis, Esquire
1700 Bent Creek Blvd., Ste 140
Mechanicsburg, P A 17050
For Garnishee Bank: of Hanover
Respectfully submitted,
McNees Wallace & Nurick LLC
By:
G
Su 000 ill 4848
100 Pine Street, PO Box 1166
Harrisburg, P A 17108-1166
(717) 237-5439
Attorneys for PNC Bank:, National Association
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SHERIFF'S RETURN - GARNISHEE
CASE NO: 2005-02418 P
COMMONWEALTH OF PENNSLYVANIA
COUNTY OF CUMBERLAND
PNC BANK NATIONAL ASSOCIATION
VS
NEW WAY PACKAGING MACHINERY IN
And now JASON VIORAL
,Sheriff or Deputy Sheriff of
Cumberland County of Pennsylvania, who being duly sworn according
to law, at 0010:20 Hours, on the 29th day of March
, 2006, attached
as herein commanded all goods, chattels, rights, debts, credits, and
moneys of the within named DEFENDANT
NEW WAY PACKAGING MACHINERY
INC
, in the
hands, possession, or control of the within named Garnishee
WACHOVIA BANK 604 E. HIGH ST
CARLISLE, PA 17013
Cumberland County, Pennsylvania, by handing to
PAUL FENTON (MANAGER)
personally three copies of interogatories together with 3
true
and attested copies of the within WRIT OF EXECUTION
and made
the contents there of known to His .
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
.00
.00
.00
.00
.00
.00
So an~v #-
~ ..-~ ,.
R. Thomas Kline
Sheriff of Cumberland County
04/30/2006
this ~ -{/A day of M-ILY
~~~.~
Prot no~ry
By
C?y~
Sworn and subscribed to before me
R. Thomas Kline. Sheriff. who being duly sworn according to law. states this
Writ is returned ABANDONED. no action taken in six months.
Sheriffs Costs:
Docketing
Poundage
Advertising
Law Library
Prothonotary
Mileage
Misc.
Surcharge
Levy
Post Pone Sale
Certified Mail
Postage
Garnishee
TOTAL
13!:1i OJ
18.00
1.65
1.00
4.40
30.00
20.00
9.00
84.05 v ~ /() /1 CJ J 0(,
St :l d EZ HVW qOOZ
"Jd ')..HliIU:J Qk\'\I:lJ8WflJ
.:BIB3HS 3Hl .:10 331.:LdO
Advance Costs: 150.00
Sheriffs Costs 84.05
65.95
Refunded to Atty on 10/04/06
So Answers; - . ',' .,'~' ,
~ii?:~;<~;
R. Thomas Kline. Sheriff
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WRIT OF EXECUTION and/or ATTACHMENT
COMMONWEALTH OF PENNSYLVANIA)
COUNTY OF CUMBERLAND)
NO 05-2418 Civil
CIVIL ACTION - LAW
TO THE SHERIFF OF CUMBERLAND COUNTY:
To satisfy the debt, interest and costs due PNC BANK, NATIONAL ASSOCIATION, Plaintiff (s)
From NEW WAY PACKAGING MACHINERY, INC., 210 NORTH BLETTNER AVENUE,
HANOVER, PA 17331
(1) You are directed to levy upon the property of the defendant (s)and to sell
(2) You are also directed to attach the property of the defendant(s) not levied upon in the possession
of W ACHOVIA BANK, CARLISLE FINANCIAL CENTER, 604 E. HIGH STREET, CARLISLE,
P A 17013 - SERVE THE ACCOMPANYING INTERROGATORIES TO GARNISHEE UPON
THE GARNISHEE AT THE ADDRESS STATED
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) Ifproperty 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.
Interest FROM 5/10/05 AT THE RATE OF $210.35 PER DAY
Atty's Comm %
Atty Paid $101.40
Plaintiff Paid
Date: MARCH 16, 2006
Due Prothy $1.00
Other Costs
(Seal)
Deputy
REQUESTING PARTY:
Name GEOFFREY S. SHUFF, ESQUIRE
Address: MCNEES WALLACE & NURICK LLC
100 PINE STREET
POBOX 1166
HARRISBURG, PA 17108-1166
Attorney for: PLAINTIFF
Telephone: 717-237-5439
Supreme Court ID No. 24848