HomeMy WebLinkAbout05-2416IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION, : DOCKET NO.
Plaintiff
vs.
CONFESSION OF JUDGMENT
EDWARD J. ABENDSCHEIN,
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 $ 48,389.62
Late Charges $ 700.00
Search Fee $ 50.00
Prepayment Fees $ 12,123.01
Mortgage Satisfaction Fee $ 30.50
Attorneys' Fees $ 63,088.72
TOTAL $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
maybe entitled.
& LINDSAY
Date: May 9, 2005
By:
Geoffrey S. Shuff, Esquire ID 924848
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,
Plaintiff
vs.
DOCKET NO.
EDWARD J. ABENDSCHEIN,
Defendant
CONFESSION OF JUDGMENT
PREVIOUSLY ASSIGNED TO: N/A
COMPLAINT FOR CONFESSION OF JUDGMENT
UNDER RULE 2951
1. The Plaintiff, PNC Bank, National Association, is a national banking association
organized and existing under the banking laws of the United States of America with a principal
regional office located at 4242 Carlisle Pike, Camp Hill, Pennsylvania 17011 (`Bank").
2. The Defendant, Edward J. Abendschein, is an adult individual whose last known
address is 210 North Blettner Avenue, Hanover, Pennsylvania 17331 (the "Defendant").
3. Defendant executed and delivered to Plaintiff a Promissory dated February 21, 2001
(the "Note") in connection with a loan in the original principal amount of Seven Hundred Fifty
Thousand and 00/100 Dollars ($750,000.00) (the "Loan"). A true and correct photostatic
reproduction of the original Note is attached hereto as Exhibit "A" and made a part hereof.
4. Defendant is in default of Defendant's obligations to make payment to Plaintiff as
required in the Note and Plaintiff has demanded payment in full of all outstanding amounts as
provided in the Note. A copy of Plaintiffs demand is attached hereto as Exhibit "B" and made a
part hereof.
5. 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 "C" and made a part hereof.
6. Defendant is in default of Defendant's obligations under the Note for, inter atia,
failure to make payment as and when due.
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 Note.
9. Judgment has not been entered on the Note 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
C. Prepayment Fees $ 12,123.01
f Mortgage Satisfaction Fee $ 30.50
g. Attorneys' Fees $ 63,088.72
TOTAL: $706,879.42
11. Interest continues to accrue at the rate of $210.35 per day.
WHEREFORE, Plaintiff, PNC Bank, National Association, demands judgment against the
Defendant, Edward J. Abendschein, in the amount of $706,879.42, plus interest at the rate of
$210.35 per day, from May 10, 2005, through the date of payment, including on and after the date
of entry of judgment on this Complaint, and for other expenses, fees and costs to which the Plaintiff
2
may be entitled.
Respectfully submitted,
& LINDSAY
Date: May 10, 2005 By:.
Geoffrey S. ShufP, 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
PROMISSORY NOTE (.. -
y.: yY ` ray:, C, vf. ?tb A xU:v: °a eY. Y "^N' W )[ M1 k l M
., o'` 1 r _...4 5•
References in the shaded area are for Lenders use only and do not Omit the applicablitty of this document to a amcun
8011rOWer: EDWARD J. ABENDSCHEIN (SSN: 164-40-6745) Lender: PNC BANK, NATIONAL ASSOCIATION
a POLLARD ROAD 4242 CARLISLE PIKE
MOUNTAIN LAKES, NJ 070" CAMP HILL, PA 17001-M74
Principal Amount: $750,000.00 Interest Rate: 8.000% Date of Note: February 21, 2001
PROMISE TO PAY. EDWARD J. ARENOSCFEIN ("Borrower") promises to pay to PNC BANK, NATIONAL ASSOCIATION (lender"), or order, in
WM money of the United Slelea Of America, are prtholpd amount of Seven Hunared Fifty Thousand a 00/100 Dollars (S750AD040), together
adth Interest of the refs of SAM per annum on the unpaid principal balance from February 21, 2001, until paid In full.
PAYMENT. Borrower war pay ads loan in se impa r payments of $7gl6As each and one frregulu last payment estlmaled at S696,1102As,
Borrower's Ibst Payment IS dus March 21, 2001, sed all subsequent payments we due on the owns day of each month after that. Borrower's
fIW payment due February 21, 2000, will be for all principal and all accrued Interest not yet Wo• Payments Include principal and Interest. The
annual Interest rate for this Note Is computed on a 385/360 basis; mat M. by applying the ratio of this annual Inier" rate over a year of 310 days,
multiplied by the outstanding principal balance, mWOplied by the actual number of days the principal balance is outstanding. Borrower will pay Lander
at Lenders address shown above or at such other place as Lender may designate In writing. Unless otherwise agreed or required by applicable law,
payments will be applied last to accrued unpaid interest, then to principal, and any remaining amount to any unpaid collection cosh and late charges.
PREPAYMENT PENALTY. Upon prepymmd of this Nots, Lender Is entitled to the following prepayment penalty: On any buaMees day, upon
payment of all accrued unpaid Interest on this We, and upon five (5) business day's prior written notice to Lender, the Borrower may prep"
80 or part of the outstanding principal of this Note; provided, however, that the Borrower also agrees to pay Lender as compensation for the
eat of advancing Need rate funds, an amount equal to the Cost of Prepayment.
"Cost of Prep"meW means an amount squad to the present value, If positive, of the product of (a) the difference between (I) the yield, on the
date of this Nolo, d a U. S. Treasury otMgallon with a maturity similar to this Note mina (In the yield on the prepayment date, of a U. S.
Treasury obligation with s matunlty similar to the remaining maturity of this NOW and (b) the principal amount to be prepaid, and (c) the
number of years, Including fraeBOal years, from the prepayment date to the maturity data of ON Note. The yield on any U. S. Treasury
obligation shall be determined by reference to Federal Reserve Statistical Release H.16(619) "Selected Interest Rata". For purposes of
massing praanl value calculations, the yMM to maturity of a similar meturity U. S. Treasury obligation an the prepayment deft shell be deemed
the discount rata. The Cat of Prepayment shelf also apply to any payments made after acceleration of the maturity of this Note. Except for the
foregoing, Borrows may p" all or a portion of the amount owed earlier than it Is der. Early payments will not, unless agreed to by Lender in writing,
relive Borrower of Borowers obligation to continue to make payments under the payment schedule. Rather, they will reduce the principal balance
due and may result in Borrower making few payments.
LATE CHARGE. If a payment Is is days or more Into, Borrower will be charged 6AOo% of the unpaid portion of the regu" scheduled payment
or 1100A0, whichever te Wass.
DEFAULT. Borrower will be in default if any of the following happens: (a) Borrower We to make any payment when due. (b) Borrower breaks any
promise Borrower has made to Lender, or Borrows Ws to comply with or to perform when due any other term, obligation, covenant, or condition
mhtefrad In this Note or any agreement related to this Note, or in any other agreement or loan Borrower has with Lender. (e) Borrower defaults under
any loan, extension of credit, security agreement, purchase or sears agreement or any other agreement, In favor of any other creditor or person that
may materially affect any of Borrowers property or Borrowers ability to repay this Note or perform Borrowers Obligations under this Note or any of the
Related Documents. (d) Any representation or statement made or banished to Lender by Borrower or on Borrowers behalf is fate or misleading in any
material respect either now or at the time made or furnished. (e) Borrower dies or becomes hsOWent, a receiver is appointed for any pert of Borrowers
Property. Borrower makes an assignment for the benarc of creditors, or any proceeding is commenced either by Borrower or against Borrower under
any bankruptcy or Insolvency laws. (1) Any creditor tries to take any of Borrowers property on or In which Lender has a Ian or security interest. This
includes a garnishment of any of Borrowers accounts with Lender. (g) Any of the events described In this default section occurs with respell to any
guarantor of tht Note. (h) A material adverse change occurs in Borrowers 6nanclal condition, or Lender believes the prospect of payment or
performance of the Indebtedness is impaired.
LENDERS RIGHTS. Upon default, Lender may, after VNI g such notices as required by applicable law, declare the entire unpaid principal balance on
tht Note and all accrued unpaid Interest Immediately due, and then Borrower will pay that amount. Upon default, including failure to pay upon final
maturity, Lender, at Its option, may also, If permitted under applicable law, Increase the Interest rate on this Note 5.00D percentage points. The interest
rate will not mead the maximum rate permitted by applicable law. Lender may hire or pay someone else to help called this Note it Borrower does not
pay. Borrower also will pay Lender mat amount. This includes, subject to any Umlts under applicable law, Lender's attorneys' fees and Lender's legal
expenses whether or not there is a lawsuit, including ahornays' tees and legal menses for bankruptcy proceedings (including efforts to modify of
vacate arty automatic stay or injunction), appests, and any anticipated post-judgment collection services. If not prohibited by applicable law, Borrower
also will pay any court costs, in addition to all other sums provided by taw. if )udgnerd is entered In connection with this Note, interest will continue to
acme on this Note afar judgment at the existing interest rate provided for In this Note. This We has been delivered to Lender and accepted by
Lender M Ina Conmenweamn of Pennsylvania. If there Is a lawsuit, Borrower agrees upon Lender's request to submit to the jurisdiction of the
courts of CUMBERLAND County, the Commonwealth of Perm"Nnla. Lender and Borrower hereby waive the right to arty jury trial In any
wow, proceeding, or counterclaim brought by efther Lander or Borrower egefnat the other. This Note shall be governed by and construed In
accordance with the laws of the Commonwealth of Pennsylvania.
RIGHT OF SETOFF. Borrower grants to Lender a contractual security interest in, and hereby assigns, conveys, delivers, pledges, and transters to
Lender all Borrowers right, tiffs and Interest In and to, Borrowers accounts with Lender (whether checking, savings, or some other account), including
w6hout ImitationApRII account held jointly with someone else and as accouns Borrower may open in the future, excluding however all IRA and Keogh
amounts, and 8WIPAt accounts for which the grant of a security Interest would be prohiblted by few. Borrower authorizes Lender, to the extent
permitted by applicable law, to charge or setoff all sums owing on this Note against any and all such amounts.
COLLATERAL. This Note Is secured by a Morgage dated February 21, 2001, to Lander on rest property located in ADAMS County, Commonwealth of
Pennsylvania, all the terra and conditions of which are hereby Incorporated and made a part of tits Note.
FINANCIAL INFORMATION PROVISION. Borrower sgrass to deliver any 6naneW and other business Information concerning Borrower that Lender
may request from Unto to time, such as annuli and Interim financial statements (alt of which shall be prepared In accordance with genomfly accepted
.-.,:unting principles) and federal Income tax returns.
hk,V " ,
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Loan No + (Continued) Page 2
YEAR 2000 COMPLIANCE. Borrower has reviewed the areas within its business and operations which could be aversely affected by, and has
developed or Is developing a program to address on a timely basis the-irdr that certain computer applications used by Borrower may be unable to
recognize and perform properly date-sensitive functions involving dates prior to and after December 31, 1999 (the "Year 2000 Problem"). The Year
2000 Problem will not result, and is not reasonably expected to result, In any material adverse effect on the business, properties, assets, financial
condition, results of operations or prospects of Borrower, or the ability of Borrower to duly and punctually pay or perform its Obligations hereunder and
under the Related Documents.
ADDITIONAL FINANCIAL INFORMATION PROVISION. Borrower shag deliver or cause to be delivered to Lander not later than 120 days after the
close of each calendar year: (a) a copy of the federal income tax return flied by Borrower, which tax return shall be a true and complete copy of the
return filed by Borrower with the Internal Revenue Service; and (b) an updated personal financial statement of Borrower. In addition, Lander 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 lasing them. 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 of
dishonor. Upon any change in the terms of this Note, and unless otherwise expressly stated in writing, no party who signs this Note, whether as maker,
guarantor, accommodation maker or endorser, shall be released from liability. AM such parties agree that tender may renew or extend (repeatedly and
for any length of lime) this loan, or release, any party or guarantor or collateral: or impair, Taff to real= upon or perfect Lender's security interestin the
collateral: and take any other action deemed necessary by Lender without the consent of or notice to anyone. AN such parties also agree that Lander
may modify this loan wRhout the consent of or notice to anyone other than the party with whom the modification Is made. If any portion of this Note is
for any reason determined to be unenforceable, it will not affect the enforceability of any other provisions of this Note. -
CONFESSION OF JUDGMENT. BORROWER 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 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 ANY AND ALL AMOUNTS
EXPENDED OR ADVANCED BY LENDER RELATING TO ANY COLLATERAL SECURING THIS NOTE TOGETHER WITH INTEREST ON SUCH
AMOUNTS, TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEY'S COMMISSION OF TEN PERCENT (10%) OF THE UNPAID PRINCIPAL
BALANCE AND ACCRUED INTEREST FOR COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS ($5D0) ON WHICH
JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY: AND FOR SO DOING, THIS NOTE OR A COPY OF THIS
NOTE VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT. THE AUTHORITY GRANTED IN THIS NOTE TO CONFESS JUDGMENT
AGAINST BORROWER SHALT. NOT BE EXHAUSTED BY ANY EXERCISE OF THAT AUTHORITY, BUT SHALL CONTINUE FROM TIME TO TIME AND
AT ALLTIMES 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 ANY SUCH CONFESSION OF JUDGMENT, EXCEPT ANY NOTICE ANDIOR
HEARING REQUIRED UNDER APPLICABLE TAW WITH RESPECT TO EXECUTION OF THE JUDGMENT, AND 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:
PNC BANK, NATIONAL AScOCIATION
4242 Carlisle P11e
Camp Hill, PA 17011
E-mail: eric.krimmelrpncbank.com
G RN CBAV
November 30, 2004
Mr. Edward I. Abendschein
88 Pollard Road
Mountain Lakes, NJ 07046
Mr. Edward J. Abendschein, President
NWl, loc.
New Way Packaging Machinery, Inc.
210 Bletmer Avenue
P. 0. Box 467
Hanover, PA 17331
In re: Obligor/Obligation Nos._ 30932275-601644017 (S7E0,000 Loan)
Dear Nu. Ahennscli--m:
Eric D. Krimmei
Vice President
(717) 730.2492 Tel
(717) 730-2373 Fax
As you know. you are obligated to PNC Bank, National Association ("PNC") for the above-referenced loan accou:=_
(the "Loan"), as evidenced by a certain Promissory Note, Mortgage, Commercial Guaranties, and other relate_
documents (toe "Lawn Documents").
As you also know, you are m default under the Loan and Loan Documents far your failure to pay the October 2l.
2004 and November 21. 2004 loan payments, which constitutes an Event of Default under the Loan and Loan
Documents.
As a result of the above Event of Default all liabilities and obligations under the Loan and Loan Documents have
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 Documents is as follows:
Obligod01bligarion Nos.: 3093 2 275-60 1 6440 1" (S7%000 Loan)
Principal 5582,49757
Interest to 11130104 14,73410
Late charges 100.00
Mortgage satisfaction fee
Total
30.50
5597,36227 plus prena}tnent fees and costs
Please be advised that unless payment in full (including prepayment fees and costs) is immediately delivered to PNC
Bank, National Association at 4242 Carlisle Pike, Camp Hilt. PA 17011, in the form of a cashiers cheep PNC shat
take all action it deems appropriate to collect the above sums due and owing, preserve, protect and enforce its right
under the Loan and Loan Documents.
This lever shall not be deemed to constitute a waiver of any outstanding defaults or Events of Default, nor shall it
obligate PNC, or be construed to require PNC, to waive any defaults, whether now existing or which may oce,=
after the date of this letter, nor shall it limit PNC's rights to exercise all of its rights and remedies under the Loa=
Documents, including any other loan documents executed in connection therewith, all of which rights PNC
expressly reserves.
1 (i (?Ir
A member of The PNC Financial Services Group ?J
4242 Carlisle Pike Camp Hill Pennsylvania tl-il P
Mr. Edward J. Abendschein
November 30, 2004
Page 2
Very truly yours,
PNNC Bank, National Association
Eric D. Krimmel
Vice President
Certified Mail Nos.: 7002 0460 0000 9754 8978
7002 0460 0000 9754 8985
cc: Re;ular Mail
John M. Crabbs, Esquire
Mark A. Crittelman, Esquire
DISCLO, AE FOR CONFESSION OF ..JGMENT
DISCLOSURE FOR CONFESSION OF JUDGMENT
sr
In
1 AM EXECUTING, THIS 2_ DAY OF 200 L, A PROMISSORY NOTE FOR $750,900.00 OBLIGATING
ME TO REPAY THAT AMOUNT.
A. I UNDERSTAND THAT THE NOTE CONTAINS A CONFESSION OF JUDGMENT PROVISION THAT WOULD PERMIT LENDER TO ENTER
JUDGMENT AGAINST ME IN COURT, AFTER A DEFAULT ON THE NOTE, WITHOUT ADVANCE NOTICE TO ME AND WITHOUT OFFERING
ME AN OPPORTUNITY TO DEFEND AGAINST THE ENTRY OF JUDGMENT. IN EXECUTING THE NOTE, BEING FULLY AWARE OF MY
RIGHTS TO ADVANCE NOTICE AND TO A HEARING TO CONTEST THE VALIDITY OF ANY JUDGMENT OR OTHER CLAIMS THAT LENDER
MAY ASSERT AGAINST ME UNDER THE NOTE, I AM KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY WAIVING THESE RIGHTS,
INCLUDING ANY RIGHT TO ADVANCE NOTICE OF THE ENTRY OF JUDGMENT, AND I EXPRESSLY AGREE AND CONSENT TO LENDER'S
ENTERING JUDGMENT AGAINST ME BY CONFESSION AS PROVIDED FOR IN THE CONFESSION OF JUDGMENT PROVISION.
B. I FURTHER UNDERSTAND THAT IN ADDITION TO GIVING LENDER THE RIGHT TO ENTER JUDGMENT AGAINST ME WITHOUT
ADVANCE NOTICE OR A HEARING, THE CONFESSION OF JUDGMENT PROVISION IN THE NOTE ALSO CONTAINS LANGUAGE THAT
WOULD PERMIT LENDER, AFTER ENTRY OF JUDGMENT, TO EXECUTE ON THE JUDGMENT BY FORECLOSING UPON, ATTACHING,
LEVYING ON, TAKING POSSESSION OF OR OTHERWISE SEIZING MY PROPERTY, IN FULL OR PARTIAL PAYMENT OF THE JUDGMENT.
HOWEVER, LENDER MUST PROVIDE NOTICE TO ME UNDER APPLICABLE LAW IN EXECUTING ANY CONFESSED JUDGMENT. IN
EXECUTING THE NOTE, BEING FULLY AWARE OF MY RIGHTS TO ADVANCE NOTICE AND A HEARING AFTER JUDGMENT IS ENTERED
AND BEFORE EXECUTION ON THE JUDGMENT, I AM KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVING THESE RIGHTS, AND I
EXPRESSLY AGREE AND CONSENT TO LENDER'S EXECUTING ON THE JUDGMENT, IN ANY MANNER PERMITTED BY APPLICABLE
STATE AND FEDERAL LAW.
C. AFTER HAVING READ AND DETERMINED WHICH OF THE FOLLOWING STATEMENTS ARE APPLICABLE, AND BY PLACING MY
INITIALS NEXT TO EACH STATEMENT WHICH APPLIES, 1 REPRESENT THAT:
INIT
1 I WAS REPRESENTED BY MY OWN INDEPENDENT LEGAL COUNSEL IN CONNECTION WITH THE NOTE.
2. A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THE CONFESSION OF JUDGMENT PROVISION IN THE NOTE TO
MY ATTENTION.
0. 1 CERTIFY THAT MY ANNUAL INCOME EXCEEDS $10,000; THAT THE BLANKS IN THIS DISCLOSURE WERE FILLED IN WHEN I
INITIALED AND SIGNED IT; AND THAT I RECEIVED A COPY AT THE TIME OF SIGNING.
THIS DISCLOSURE HAS BEEN SIGNED AND SEALED BY THE UNDERSIGNED.
AFFIANT: ,/
J.
(SEAL)
LASER PRO, Reg. U.S.Pat.BT.M.O//., Ver. 3.29a(C)COncentreX1002 All rights reserveO.IPA-030 E3.29 F1.29 ABEN OSN.LN C29.OVL)
A
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
VS.
EDWARD J. ABENDSCHEIN,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO.
CIVIL ACTION - LAW
CONFESSION OF JUDGMENT
VERIFICATION
I, Eric Krimmel, Vice President, for PNC Bank, National Association, being authorized to
do so on behalf of PNC Bank, National Association, hereby 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. C.S. Section
4904, relating to unworn falsification to authorities.
PNC BANK, NATIONAL ASSOCIATION
Date: S 1110 S By:_ L- -s
Eric D. Krimmel
Vice President
N
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1-6
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION, DOCKET NO.
Plaintiff
vs.
CONFESSION OF JUDGMENT
EDWARD J. ABENDSCHEIN,
Defendant PREVIOUSLY ASSIGNED TO: NIA
NOTICES IN CONNECTION WITH JUDGMENTS BY CONFESSION
REQUIRED BY 42 Pa. C.S.A. § 2737.1 (Act 105 of 2000)
To: Edward J. Abendschein
Pursuant to 42 Pa. C. 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, PA 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.
submitted,
& LINDSAY
Date: May 9, 2005 By:
Geoffrey S. Shuff, Esquire ID #24848
Matthew J. Eshelman, Esquire ID 972655
2109 Market Street, Camp Hill, PA 17011
(717) 737-3405 (fax) 737-3407
Attorneys for Plaintiff, PNC Bank, National
Association
Pennsylvania Rule of Civil Procedure 2959 - Striking off Judgment
(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 2956.1(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.
(f) The lien of the judgment or of any levy or attachment shall be preserved while the
proceedings to strike off or open the judgment are pending.
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION, DOCKET NO.
Plaintiff
vs.
CONFESSION OF JUDGMENT
EDWARD J. ABENDSCHEIN,
Defendant PREVIOUSLY ASSIGNED TO: N/A
NOTICE UNDER RULE 2958.1
OF JUDGMENT AND EXECUTION THEREON
NOTICE OF DEFENDANT'S RIGHTS
TO: Edward J. Abendschein
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
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, PA 17013
(717) 249-3166 or 1-800-990-9108
& LINDSAY
Date: May 9, 2005 By:
Geoffrey S. Shuff,?Esquire ID #24848
Matthew J. Eshelman, Esquire ID 472655
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,
Plaintiff
vs.
EDWARD J. ABENDSCHEIN,
Defendant
DOCKET NO.
CONFESSION OF JUDGMENT
To: Edward J. Abendschein, Defendant
PREVIOUSLY ASSIGNED TO: N/A
You are hereby notified that on U , 2005, judgment by confession was
entered against you in the sum of $706,879.42 i he above-captioned case.
DATE: (U -615, L ?' e Z
Prothonotary V J d
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 1-900-990-9108
I hereby certify that the following is the address of the defendant stated in the certificate of
residence:
Edward J. Al
210 North Blei
Hanover, P
Attorney for
A, Edward J. Abendschein, Demandado(s)
Por este medic, 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 PAGAR TAL SERVICIO, VAYA
EN PERSONA A LLAME POR TELEFONO A LA OFICINA CUYA 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 to siguiente es la direccion del demandado dicho en el
certificado de residencia:
Edward J. Al
210 North Blei
Hanover, P
Abogada(a) de
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
VS.
DOCKET NO.
CONFESSION OF JUDGMENT
EDWARD J. ABENDSCHEIN,
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 924848
Matthew J. Eshelman, Esquire ID #72655
SAIDIS, SHUFF, FLOWER & LINDSAY
2109 Market Street, Camp Hill, PA 17011
(717) 737-3405 (fax) 737-3407
Respectfully submitted,
& LINDSAY
Date: May 9, 2005
Geoffrey S. Sliuff, Esquire ID #24848
Matthew J. Eshelman, Esquire ID 972655
2109 Market Street, Camp Hill, PA 17011
(717) 737-3405 (fax) 737-3407
Attorneys for Plaintiff, PNC Bank, National
Association
By:
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
VS.
EDWARD J. ABENDSCHEIN,
Defendant
DOCKET NO.
CONFESSION OF JUDGMENT
PREVIOUSLY ASSIGNED TO: NIA
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, Edward J. Abendschein, is 210 North Bletwer Avenue, Hanover, Pennsylvania 17331.
Respectfully submitted,
LINDSAY
Date: May 9, 2005 By:
Geoffrey S. Shuff Esquire ID 924848
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.
Plaintiff
vs.
CONFESSION OF JUDGMENT
EDWARD J. ABENDSCHEIN,
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, Edward J. Abendschein, in the
above-captioned action is not presently on active or nonactive military status.
Respectfully submitted,
& LINDSAY
Date: May 9, 2005 By:
Geoffrey S. Shuff, Esquire ID 924848
Matthew J. Eshelman, Esquire ID 472655
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,
Plaintiff
vs.
EDWARD J. ABENDSCHEIN,
Defendant
DOCKET NO. 05-2416 CIVIL
CONFESSION OF JUDGMENT
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 Adams County, Pennsylvania;
(2) against Edward J. Abendschein., 210 North Blettner Avenue, Hanover,
Pennsylvania 17331, Defendant; and
(3) against:
(a) Bank of Hanover, 6 York Street, Gettysburg, Pennsylvania 17325,
Garnishee;
(b) Office Products Systems, 210 North Blettner Avenue, Hanover,
Pennsylvania 17331, Garnishee;
(c) Colonial Advertising, 210 North Blettner Avenue, Hanover, Pennsylvania
17331, Garnishee;
(d) New Way Packaging Machinery, Inc., 210 North Blettner Avenue, Hanover,
Pennsylvania 17331, Garnishee;
(e) NWI, Inc., 210 North Blettner Avenue, Hanover, Pennsylvania 17331,
Garnishee; and
(f) Cintas, 210 North Blettner Avenue, Hanover, Pennsylvania 17331,
Garnishee;
and serve the accompanying Interrogatories to Garnishee upon each Garnishee at the
addresses 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 $706,879.42
Interest from May 10, 2005 at the rate
of $210.35 per day $ (to be added)
Costs $ (to be added)
CERTIFICATION
I certify that (a) This praecipe is based upon a judgment entered by confession; and
(b) 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,
Date: f Y16
SAIDIS, SHUFF, FLOWER & LINDSAY
By:.
eoffre A uff, Esquire
e C rt ID #24848
2109 MarVet 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) NO 05-2416 Civil
COUNTY OF CUMBERLAND) CIVIL ACTION - LAW
TO THE SHERIFF OF ADAMS COUNTY:
To satisfy the debt, interest and costs due PNC BANK, NATIONAL ASSOCIATION, Plaintiff (s)
From EDWARD J. ABENDSCHEIN, 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 BANK OF HANOVER, 6 YORK STREET, GETTYSBURG, PA 17325 - OFFICE
PRODUCTS SYSTEMS, 210 NORTH BLETTNER AVENUE, HANOVER, PA 17331 -
COLONIAL ADVERTISING, 210 NORTH BLETTNER AVENUE, HANOVER, PA 17331 -- NEW
WAY PACKAGING MACHINERY, INC., 210 NORTH BLETTNER AVENUE, HANOVER, PA
17331 -- NWL INC., 210 NORTH BLETTNER AVENUE, PA 17331 -- CINTAS, 210 NORTH
BLETTNER AVENUE, HANOVER, PA 17331 - SERVE THE ACCOMPANYING
INTERROGATORIES TO GARNISHEE
GARNISHEE(S) as follows:
and to notify the gamishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from
paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant
(s) or otherwise disposing thereof;
(3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession
of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a
garnishee and is enjoined as above stated.
Amount Due $706,879.42 L.L. $30
Interest FROM 5110105 AT THE RATE OF $210.35 PER DAY
Atty's Comm % Due Prothy $1.00
Ally Paid $53.00 Other Costs
Plaintiff Paid
Date: SEPTEMBER 12, 2005
Pr thonota
(Seal)
By:
Deputy
REQUESTING PARTY:
Name GEOFFREY S. SHUFF, ESQUIRE
Address: SAIDIS, SHUFF, FLOWER & LINDSAY
2109 MARKET STREET
CAMP HILL, PA 17011
Attorney for: PLAINTIFF
Telephone: 717-737-3405
Supreme Court ID No. 24848
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
VS.
EDWARD J. ABENDSCHEIN,
Defendant
DOCKET NO. 05-2416 CIVIL
CONFESSION OF JUDGMENT
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 Delaware County, Pennsylvania;
(2) against Edward J. Abendschein, 210 North Blettner Avenue, Hanover, Pennsylvania
17331, Defendant; and
(3) against: Chase Bank, 100 Granite Drive, Suite 106, Media, Pennsylvania 19063,
Garnishee;
and serve the accompanying Interrogatories to Garnishee upon the Garnishee at the address
stated above;
(4) and index this writ
(a) against
Defendant; and
(b) against: , as Garnishee, as a lis pendens against real
property of the Defendant in name of Garnishee as follows:
(5) Principal Amount Due $706,879.42
Interest from May 10, 2005 at the
rate of $210.35 per day $ (to be added)
Costs $ (to be added)
CERTIFICATION
I certify that (a) This praecipe is based upon a judgment entered by confession; and
(b) 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
Date: <1 By:
T, Esquire
Su me Cou #24848
Ge ffr . Srtrelet
2109 Market 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 05-2416 Civil
CIVIL ACTION - LAW
TO THE SHERIFF OF DELAWARE COUNTY:
To satisfy the debt, interest and costs due PNC BANK, NATIONAL ASSOCIATION, Plaintiff (s)
From EDWARD J. ABENDSCHEIN, 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 CHASE BANK, 100 GRANITE DRIVE, SUITE 106, MEDIA, PA 19063 -SERVE THE
ACCOMPANYING INTERROGATORIES TO GARNISHEE
GARNISHEE(S) as follows:
and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from
paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant
(s) or otherwise disposing thereof,,
(3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession
of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a
garnishee and is enjoined as above stated.
Amount Due $706,879.42
L.L.
Interest FROM 5110105 AT THE RATE OF $210.35 PER DAY
Arty's Comm % Due Prothy $1.00
Arty Paid $50.50
Plaintiff Paid
Date: SEPTEMBER 12, 2005
(Seal)
Other Costs
Prothonota
By:
Deputy
REQUESTING PARTY:
Name GEOFFREY S. SHUFF, ESQUIRE
Address: SAIDIS, SHUFF, FLOWER & LINDSAY
2109 MARKET STREET
CAMP HILL, PA 17011
Attorney for: PLAINTIFF
Telephone: 717-737-3405
Supreme Court ID No. 24848
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
PNC BANK, NATIONAL
ASSOCIATION,
Plaintiff
No. 05-2416 Civil Term
V.
CONFESSION OF JUDGMENT
EDWARD J. ABENDSCHEIN,
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.
Dated:
Respectfully submitted,
LATSHA DAVIS YOHE & MCKENNA, P.C.
By
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
102595
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 below upon the
following:
Service b): first-class mail addressed as follows:
Geoffrey S. Shuff, Esq.
Saidis, Shuff, Flower & Lindsay
2109 Market Street
Camp Hill, PA 17011
Service by certified mail addressed as follows:
Edward J. Abendschein
210 North Blettner Avenue
Hanover, PA 17331
Dated: C "'OS Z'I-? ???
Helen Samuels
Legal Secretary
102595
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
PNC BANK, NATIONAL
ASSOCIATION,
Plaintiff
No. 05-2416 Civil Term
V.
CONFESSION OF JUDGMENT
EDWARD J. ABENDSCHEIN,
Defendant PREVIOUSLY ASSIGNED TO: N/A
GARNISHEE, BANK OF HANOVER'S ANSWER TO
INTERROGATORIES TO GARNISHEE
1. No.
2. No.
3. No.
4. No.
5. No.
6. No.
7. No.
8. No.
9. No.
Respectfully submitted,
LATSHA DAVIS YOHE & MCKENNA, P.C.
Os
Dated: 101251
By \lal?-Zt1IL6
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
102584
VERIFICA'T'ION
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 unworn falsification to authorities.
Dated: 16-Z -S- Z00!7'
ve?i?
David Cherrington, Vice President
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 was served in the manner indicated
below 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
Service by certified mail addressed as follows:
Edward J. Abendschein
210 North Blettner Avenue
Hanover, PA 17331
Dated: ? C?'? di ; does
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dizv
Helen Samuels
Legal Secretary
102584
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
* DOCKET NO. 05-2416 CIVIL TERM
*
*
vs.
*
EDWARD J. ABENDSCHEIN, * 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 10`h 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.
JoM/M. Crabbs - 36809
Whover, PA 17331
(717) 637-9799
Attorney for Defendant,
Edward J. Abendschein
CERTIFICWAATE OF SERVICE
I hereby certify that on this /o 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,
2109 Market Street
Camp Hill, PA 17011
Esq.
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. §4904 relating to unsworn
falsification to authorities.
Date: //-/d - 0 y
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
vs.
* DOCKET NO. 05-2416 CIVIL TERM
*
*
*
*
EDWARD J. ABENDSCHEIN, * CONFESSION OF JUDGMENT
Defendant * PREVIOUSLY ASSIGNED TO: N/A
* RELATED CASE ASSIGNED TO
* J. BAILEY
PETITION TO OPEN JUDGMENT OR FOR EQUITABLE RELIEF
Edward J. Abnedschein, by his 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: /Udv cf 7..?r
Edward J. A endschein
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.
-36809
?6ver, PA 17331
7) 637-9799
Attorney for Defendant,
Edward J. Abendschein
CERTIFICATE OF SERVICE
I hereby certify that on this ja_?day of November, 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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MASON DIXON BUSINESS FORMS, INC. 33(XKXI
DATE RECEIVED DATE PROCESSED
SHERIFF'S DEPARTMENT
ADAMS COUNTY, PENNSYLVANIA
COURTHOUSE, GETTYSBURG, PA 17325
INSTRUCTIONS: See "INSTRUCTIONS FOR SERVICE OF PROCESS BY
SHERIFF SERVICE THE SHERIFF" on the revere of the last (No. 5) copy of this form. Pleass
PROCESS RECEIPT, and AFFIDAVIT OF RETURN type or print legibly' insuring readalloility, of all copes.
Do not dahwh any copies. ACED ENV.a
1. PLAINTIFFIS1 2. COURT NUMBER
PNC BANK, NATIONAL ASSOCIATION 05-2416 Civil Term
3. DEFENDANTS/ 4. TYPE OF WRIT OR COMPLAINT:
EDWARD J. ABENDSCHEIN Notice Under Rule 2958.1
SERVE 5. NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC., TO SERVICE OR DESCRIPTION OF PROPERTY TO BE LEVIED, ATTACHED OR SOLD.
Edward J. Abendschein
6. ADDRESS (Street or RFD. Apartment No., City, SM, Twp., State and ZIP CODE)
AT c/o tdWI, Inc., 210 North Blettner Avenue, Hanover, PA 17331
7. INDICATE UNUSUAL SERVICE: ? PERSONAL ? PERSON IN CHARGE O DEPUTIZE O CERT. MAIL ? REGISTERED MAIL O POSTED ? O7 R
Now, , I, SHERIFF OF ADAMS COUNTY, PA., do hereby deputize t? SFiesff o!
County to execute this Writ and make return therof according to law. This de?uLlatiorn being
made at the request and risk of the plaintiff. 4'
SWERIFF OEA?/AMS COUNTY
S. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE. '?'' --
GJ
NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN-Any deputy sheriff levying upon or attaching any properly: under within writ may leave
same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability an the partol s=K.dbputy *,me sheriff to
any plaintiff herein for any loss. destruction or removal of any such property before sheriff's sale thereof. 9. SIGNATURE of ATTORNEY or other ORIGINATOR requesting service on behalf of: 10. TELEPHONE NUMBER 11. DATE
Geoffrey S. Snuff Es q. (717) 737-3405
Y 9• ? DEFENDANT
12. 1 "knowledge receipt of the wit SIGNATURE of Authorized ACSD Deputy or Clerk and Title 13. Date Received 14, Expiration I Hearing date
or Complaint as indicated above. 5-27-2005
15. 1 hereby CERTIFY and RETURN that I ? have personally served, 'have served person in charge, O have legal evidence of service as shown in "Remarks" (on reverse)
? 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 handingtor Posting a TRUE and ATTESTED COPY therai.
16. ? I herebv certiN and return a NOT FOUND because I am unable to locate the individual, Company, Corporation, etc., named above. (See remarks below)
C
17. Name and title of individual served 18. A person of suitable age and discretion Read Order
Linda Eaton, Receptionist
& adult in charge at time of service men raaiding in the defendant's usual
place of abode, 73
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19. Address of where served (complete oray if different than shown above) Israel or RFD, Apartment No., City, Boro, Twp., 20. Date of Service 21. Time
State and ZIP CODE)
5/31/2005 2:35PM
22. ATTEMPTS Date Mlle DapAnt. Data Mlles DepAnt. Data Miles DepAnt. Date Mlles DepAnt. Date Miles DepAnt.
23. Advance Costs 24. 25. 26. 27. Total Coats 28. Gasrwootxm REFUND
L5100 EhL Atty. 4a155 I $21 0 , 6/2/ $128.60 Ck. #12872
AFFIRMED and subscribed to before me this N/A
day
Print or Type)
Signature of Shwa
RAYMOND W. NU MAN
SHERIFF OF ADAMS COUNTY
'OF THE SHERIFFS RETURN SIGNATURE I 139. Date Received
At ITHMITV AND TITI 9
( ) ( 1) TherwtMne?..?
upon the within named-
defendant by mailing to
by mail, return receipt requested, postage
prepaid, on the
atrue and attested copy thereof at
l )
The return receipt signed by
defendant on the
made a part of this return.
(2) Outside the Commonwealth, pursuant to Pa.
;an attested cgpy thereof at
is hereto attached and
R.C.P,,405 (c) (1) (2), by mailing a true
in the following manner:
( ) (a) to the defendant by ( ) registered, ( ) certified mail, return receipt requested,
postage prepaid, addressee only on the
said receipt being returned NOT signed by defendant, but with a notation by the Postal Authorities
that Defendant refused ,,U? accept the same. Tho retumed receipt and envelope is attached hereto
and made a part of this'rdfurn.
And thereafter.
( ) (b) To the defendant by ordinary mail addressed- to defendant at same address, with the return
address of the Sheriff appearing thereon, on the
1 further certify that after fifteen (15) days from the mailing date, I have not received
said envolope:back from the Postal Authorities. A certificate of mailing is hereto attached as a
proof of mailing.,
(3) By pubhcatinn iri the Adams County Legal Journal, a weekly publication of general circulation 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
succ4**1v wf*ks of
The Affidavits.
from said Adams County Legal Journal and Gettysburg Times, are hereto attached and made
part of this return.
( 4) By mailing to
by mail, return receipt requested, postage prepaid,
on the
a true and attested copy thereof at
The
Authorities market
is hereto attached.
returned by the Postal
( ) (5)
PNC BANK, NATIONAL
ASSOCIATION,
PLAINTIFF
V.
EDWARD J. ABENDSCHEIN,
DEFENDANT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY. PENNSYLVANIA
05-2416 CIVIL TERM
ORDER OF COURT
AND NOW, this 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,
Edgar B. Bayley, J.
,datthew J. Eshelman, Esquire
For PNC Bank, National Association
,,Sohn M. Crabbs, Esquire
For Defendant
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
CIVIL
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
vs.
EDWARD J. ABENDSCHEIN,
Defendant
Nn',; _-D
P VAPitki
DOCKET NO. 05-2416 CIVIL TERM
*
*
* CONFESSION OF JUDGMENT
* PREVIOUSLY ASSIGNED TO: N/A
* RELATED CASE ASSIGNED TO J.
* BAILEY
??ORRDER
AND NOW, this //?? Vh Day oa42005, 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 d days of this
date;
(3) the petitioner shall be decided under Pa.R.C.P. No. 206.7;
(4) depositions shall be completed within Ll 'days of this date;
(5) argument shall be held on "AD N in Courtroom ^C-of the
County Courthouse; aqtd (S-- '8,15-
(6) notice of the entry of this order shall be provided to all parties by the
petitioner.
BY THE', O RT:
J.
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION
Plaintiff
vs.
DOCKET NO. 05-2416 CIVIL TERM
EDWARD J. ABENDSCHEIN,
Defendant
CONFESSION OF JUDGMENT
PREVIOUSLY ASSIGNED TO: J. BAYLEY
PLAINTIFF PNC BANK'S ANSWER TO RULE
IN RESPONSE TO DEFENDANT ABENDSCHEIN'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 Abendschein's
Petition To Open Or For Equitable Relief, 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 5706,879.42.
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 1,
2005.
4. Admitted. It is admitted that the amount of the Judgment set forth in the original
confession is as set forth of record on the docket.
5. Denied. It is denied that judgment was entered upon the guarantee by Defendant
of an obligation of Edward J. Abendschein. By way of further answer, judgment in the above-
captioned matter was entered upon the Promissory Note executed by the Defendant
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 form a belief as to whether
the companies are wholly owned or controlled by Defendant at this time.
8. Admitted. It is admitted that judgment was entered in the above-captioned matter
upon a Note secured by, among other collateral, a Mortgage on real estate, and that a foreclosure
action against such real estate is presently pending in the Court of Common Pleas of Adams
County.
9. Denied. The loan documents provide for the imposition of the prepayment
penalty, and it is denied that judgment for prepayment fees of $12,123.01 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 of the case.
11. 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 of PNC 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,
Defendant delivered to PNC Bank personal checks in the amount of $54,384.35 signed by
Defendant, 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)(ui).
16. Denied. It is denied that Defendant has at any time attempted to negotiate a good
faith settlement of the claim of PNC Bank.
17. Admitted in part 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, National Association, respectfully requests that this
Honorable Court deny Defendant Abendschein's Motion To Open Or For Equitable Relief.
Respectfully submitted,
SAIDIS, SHOFF, FLOWER & LINDSAY
By: 4 ?1 {yJ(C? uJ
Geoffre S. Shull, Esquire ID #24848 1
Matthew J. 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
v1/-737-3407 SAIDIS SHUFF FLQWFR
399 P03 DFC 21 'HS L`;:"l
IN TILE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL, ASSOCIATION,
Plaintiff
Vs.
EDWARD J. ABLNDSCHEfN,
Defendant
DOCKET NO. 65-2416 CIVIL TERM
CONFESSION OF JUDGMENT
PREVIOUSLY ASSIGNED TO: J. BAYLEY
VERIFICATION
1, c 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 19 Pa. C.S. Section
4904, relating to unworn falsification to authorities-
PNC BANK, NATIONAL ASSOCIATION
Date: I? (oi By: >?-_? - - -- - ---
Eric Kranmel
Vice President
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
vs.
DOCKET NO. 05-2416 CIVIL TERM
EDWARD J. ABENDSCHEIN,
Defendant
CONFESSION OF JUDGMENT
PREVIOUSLY ASSIGNED TO: J. BAYLEY
CERTIFICATE OF SERVICE
AND NOW, this?(" day of N7 d'Yit-t 2005, I, Matthew J. Eshelman, Esquire, of
the finn 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 Defendant Abendschein'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. PA 17331
Respectfully submitted,
SAIDIS, SNUFF, FLOWER & LINDSAY
Geoffrey),S . Shuff, Esquire ID #24848
Matthew J. Eshelman, Esquire ID #72655
2109 Market Street
Camp Hill, PA 17011
Phone: 717-737-3405
Fax: 717-737-3407
Attorneys for Plaintiff, PNC Bank, N.A.
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
vs.
DOCKET NO. 05-2416 CIVIL TERM
EDWARD J. ABENDSCHEIN,
Defendant
CONFESSION OF JUDGMENT
PREVIOUSLY ASSIGNED TO: J. BAYLEY
PLAINTIFF PNC BANK'S ANSWER TO RULE
IN RESPONSE TO DEFENDANT ABENDSCHEIN'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 Abendschein's
Motion To Consolidate, and in support thereof avers as follows:
Admitted. It is admitted that on or about May 10, 2005, Judgment by confession
was entered against the Defendant in the within case in the amount of $706,879.42. By way of
further answer, since judgment has been entered in the case, the case cannot at this time be
consolidated with any other case.
2. Admitted. It is admitted that the underlying obligation is that of Edward J.
Abendschein ("Abendschein"). By way of further answer, Abendschein executed and delivered to
PNC Bank a Promissory dated February 21, 2001 (the "Note") in connection with a loan in the
original principal amount of $750,000.00.
3. Admitted. It is admitted that additional Judgments have been entered against
New Way Packaging Machinery, Inc. ("New Way") and NWI, Inc. ("NWI"), each as guarantor
of the obligation of Abendschein. By way of further answer, New Way and NWI each executed
and delivered to PNC Bank a Commercial Guaranty dated February 21, 2001, under which they
each guaranteed to PNC Bank, among other obligations to PNC Bank, the payment of all amounts
due to PNC Bank by Abendschein under the Note.
4. Admitted. It is admitted that the amount of the Judgment in each of the three
cases is an identical amount. By way of further answer, on May 10, 2005, PNC Bank entered
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 different Defendant. Each Judgment arises under a different
instrument. Each Defendant owns property unique to that Defendant, so that if PNC Bank must
execute against the property of one Defendant to collect the debt, the matter is different than if
PNC Bank were to execute against the property of either of the other Defendants.
8. Denied. Again, each Judgment arises under a different instrument. Also, 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 Abendschein's Motion to Consolidate.
Respectfully submitted,
SAIDIS, SHUFF, FLOWER & LINDSAY
By: U?
Geoffi S. Shuff, Esquire ID#24848 J)11
Matthew J. 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
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
vs.
DOCKET NO. 05-2416 CIVIL TERM
EDWARD J. ABENDSCHEIN,
Defendant
CONFESSION OF JUDGMENT
PREVIOUSLY ASSIGNED TO: J. BAYLEY
CERTIFICATE OF SERVICE
AND NOW, thisa(il day ofrvft`\ 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 Defendant Abendschein'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, PA 17331
Respectfully submitted,
SAIDIS, SHUFF, FLOWER & LINDSAY
V %
By ?[. L L? L ?
Geoffi y S. Shuff, Esquire ID #2484
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 IN THE COURT OF COMMON PLEAS OF
ASSOCIATION, CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFF
V.
EDWARD J. ABENDSCHEIN, /
DEFENDANT L 05-2416 CIVIL TERM
PNC BANK, NATIONAL IN THE COURT OF COMMON PLEAS OF
ASSOCIATION, CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFF
V.
NEW WAY PACKAGING
MACHINERY, INC.,
DEFENDANT 05-2418 CIVIL TERM
ORDER OF COURT
AND NOW, this 2 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 Number 2.
By tI eCourt,
Edgar B.
Matthew J. Eshelman, Esquire
For PNC Bank, National Associati n
John M. Crabbs, Esquire
For Defendants
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PNC BANK, NATIONAL IN THE COURT OF COMMON PLEAS OF
ASSOCIATION, CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFF
V.
EDWARD J. ABENDSCHEIN,
DEFENDANT 05-2416 CIVIL TERM
ORDER OF COURT
AND NOW, this 3%e day of December, 2005, reviewing the petition
to consolidate and the answer filed thereto, the motion to consolidate by Edward J.
Abendschein, IS DENIED.
By the Court, -'
Edgar B. Bayley, J.
Matthew J. Eshelman, 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
CIVIL
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
vs.
EDWARD J. ABENDSCHEIN,
Defendant
TO THE PROTHONOTARY:
DOCKET NO. 05-2416 CIVIL
: CONFESSION OF JUDGMENT
:PREVIOUSLY ASSIGNED TO: N/A
RELATED CASE ASSIGNED TO:
J. BAILEY
PRAECIPE
Please enter judgment in the above-captioned proceeding, unliquidated in amount, in favor
of the Plaintiff, PNC Bank, National Association, and against the Garnishee, Chase Bank, for
failure to file an answer to interrogatories containing a notice to answer. Judgment is entered
pursuant to Pa. R.C.P. 3146(a)(1) for Garnishee's failure to file an answer to Plaintiffs
Interrogatories which contained a notice to defend within twenty (20) days of service thereof and
after a Notice of Intent to take Judgment by Default was sent.
Respectfully
& LINDSAY
Date:
BY: _V " " v _
Matthew J. shelman, Esquire
Supreme Court ID #72655
2109 Market Street
Camp Hill, PA 17011
(717) 737-3405
Attorneys for Plaintiff
Pursuant to Pa. R.C.P. No. 237.1, I hereby certify that a notice of intent to take a default
judgment was forwarded to Chase Bank by United States Mail, First Class, postage prepaid on
November 14, 2005. The aforesaid notice was contained within an envelope bearing the return
address of the undersigned. The notice has not been returned to the unde igned as undeliverable or
otherwise. Copies of the notice and Postal Form 3817 are attac ed here d marked Exhibits "A"
and "B", respectively. ) 1 l
Esquire
1
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
VS.
EDWARD J. ABENDSCHEIN,
Defendant
DOCKET NO. 05-2416 CIVIL
CONFESSION OF JUDGMENT
PREVIOUSLY ASSIGNED TO: N/A
IMPORTANT NOTICE
TO: Chase Bank
100 Granite Drive
Suite 106
Media, PA 19063
Date of Notice: November 14, 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 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, PA 17013
(717) 249-3166 or 1-800-990-9108
& LINDSAY
Date: November 14, 2005 BY: ?/
i
cc: Eric Krimml Ma hew J. E helman, Esquire ID 972655
2109 Market Street, Camp Hill, PA 17011
(717) 737-3405 (fax) 737-3407
Attorneys for Plaintiff, PNC Bank, National Association
U,S POSTAL SERVICE CERTIFICATE OF MAILING
MAY SE USED FOR DOMESTIC AND INTERNATIONAL MAIL. DOES NOT
PROVIDE FOR INSURANCE-POSTMASTER
Received From:
Saidis, Shuff, Flower & Lindsay
2109 Market Street
PA I M1 1
amp Hill,
On piece of ordinary mail addressed [o:
? 'rrC ,k F IcC - --
PS Form 3817, January 2001
11
? ?
yY V1
S
.
V ? ?
?
f n 1 ??
Ul ??'
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
vs.
EDWARD J. ABENDSCHEIN,
Defendant
DOCKET NO. 05-2416 CIVIL
: CONFESSION OF JUDGMENT
:PREVIOUSLY ASSIGNED TO: N/A
RELATED CASE ASSIGNED TO:
J. BAILEY
NOTICE OF JUDGMENT
TO: Chase Bank
100 Granite Drive
Suite 106
Media, PA 19063
You are hereby notified that on 200L the following judgment has been
entered against you in the above captioned case:
Judgment, unliquidated in amount, in favor of the Plaintiff, PNC Bank, National
Association, and against the Garnishee, Chase Bank, for failure to file an answer to interrogatories
containing a notice to answer. Judgment is entered pursuant to Pa. R.C.P. 3146(a)(1) for
Garnishee's failure to file an answer to Plaintiffs Interrogatories which contained a notice to defend
within twenty (20) days of service thereof and after a Notice of Intent to take Judgment by Default
was sent.
24t?&
Dated: notaryI hereby certify that the proper person/entity to receive this notice under Pa. R.C.P. 236 is:
Chase Bank
100 Granite Drive
Suite 106
Media, PA 19063
A Chase Bank
100 Granite Drive
Suite 106
Media, PA 19063
Por este medio se le esta notificando que el _ de del 200_, el/la siguiente (Orden),
(Decreto), (Fallo), ha sido anotado en contra suya en el caso mencionado en el epigrafe.
FECHA:
Protonotario
Certifico que la siguiente direccion as la del defendido/a segun indicada en el certificado de
residencia:
Chase Bank
100 Granite Drive
Suite 106
Media, PA 19063
submitted,
& LINDSAY
Date: fZ
By:
Matthew J. Eshelman, Esquire
Supreme Court ID #72655
2109 Market Street
Camp Hill, PA 17011
(717) 737-3405
Attorneys for Plaintiff
2
PNC BANK, NATIONAL
ASSOCIATION,
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
EDWARD J. ABENDSCHEIN,
DEFENDANT
05-2416 CIVIL TERM
ORDER OF COURT
AND NOW, this f' day of February, 2006, the petition of
defendant, Edward J. Abendschein, to open a confessed judgment, IS DENIED.'
Clayton W. Davidson, Esquire
For PNC Bank, National Associatio
John M. Crabbs, Esquire
For Defendant
:sal
,T97
' 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, he may petition to modify. See Dollar Bank v. Northwood Cheese
Co., 431 Pa. Super. 541 (1994).
f r leaf le proaonol4rt/
a - 9- .006
,4? N
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK NATIONAL ASSOCIATION, . DOCKET NO. 05-2416
Plaintiff . CIVIL TERM
vs.
CONFESSION OF JUDGMENT
EDWARD J. ABENDSCHEIN, > PREVIOUSLY ASSIGNED TO:
Defendant ` BAYLEY, J.
PETITION SEEKING STAY OF EXECUTION
Defendant, Edward J. Abendschein, by his 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. ("NWI"); and New Way Packaging
Machinery, Inc.("New Way").
4. On or about January 19, 2005 an action in mortgage foreclosure was filed by
PNC against Abendshein in the Court of Common Pleas of Adams County,
Pennsylvania, which action was docketed to No. 05-S-73.
5. On May 10, 2005, judgment was confessed by PNC in this Court: against
Abendschein on his Note in No. 05-2416; against NWI on its guarantee in No. 05-2415
and against New Way on its guarantee in No. 05-2418.
6. Notice of the various judgments (each in the amount of $706,879.42, 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 and
Abendschein Judgments were filed.
10. By Order dated February 9, 2006, the Court denied all Petitions to Open, but
with reference to exercise of its equitable powers with respect to appropriate amounts
of the Judgments.
11. The mortgage foreclosure proceeding continues in the Court of Common
Pleas of Adams County, Pennsylvania.
12. In that Court, there is a pending Motion for Summary Judgment by Plaintiff,
PNC Bank. (A copy of that Motion is attached to this Petition.)
13. On Friday, February 17, 2006, Abendschein filed his Response to that
Motion for Summary Judgment. (A copy of that response, including his Affidavit,
directed in part to payments made, is attached.)
14. On February 21, 2006, copies of Abendschein's Response were served on
Plaintiff by regular U.S. Mail.
15. At that time, (with those copies) a check in the amount of $57,837.19 was
forwarded by Abendschein to PNC Bank.
16. On information and belief, during December, 2005, Plaintiff herein received,
upon an earlier garnishment of funds in the hands of Bank of Hanover, the sum of
$499,901.30.
17. As of the time of filing this Petition, there has been an amount of
approximately $557,738.49 paid to PNC Bank on account of the obligation, since entry
of the three judgments.
18. Your Petitioner believes, and on that belief avers, that determination of the
full and total balance due under the original obligation is now pending before the Court
of Common Pleas of Adams County, Pennsylvania.
19. Petitioner further believes, and on that belief avers, that all of the payments
above set forth have been made to the Plaintiff without in any way impairing the value
of the real estate securing the original obligation and that that value remains many
times any amount remaining due and payable to Plaintiff.
20. Your Petitioner believes that the interests of justice would be served 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,
Crabbs -
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 unavailability of
the Defendant to provide a physical signature.
Immediately before filing with the Court, a duplicate original has been forwarded
to Defendant for Verification.
Upon receipt of such verified Petition, the same will be forwarded to the
Prothonotary for filing.
M. Crabbs - 36809
CERTIFICATE OF SERVICE
I hereby certify that on this 22"d 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
IN THE COURT OF COMMON PLEAS OF ADAMS COUNTY, PENNSYLVANIA
CIVIL ACTION
PNC BANK, NATIONAL ASSOCIATION,
PLAINTIFF
vs.
EDWARD J. ABENDSCHEIN,
DEFENDANT
DOCKET No. 05 - S - 73
MORTGAGE FORECLOSURE
SUMMARY JUDGMENT MOTION
PREVIOUSLY ASSIGNED TO: J. GEORGE
NOTICE TO PLEAD
To: Edward J. Abendschein, Defendant,
You are hereby notified to file a written response to the enclosed Plaintiffs Motion for
Summary Judgment within thirty (30) days from service hereof or a judgment may be entered
against you.
Respectfully submitted,
Date: i Z / Z 1 /U By:.
SAIDIS, SHUFF, FLOWER & LINDSAY
Geofft $. Sfiuff squire, ID #24848
Matthew J. Es man, Esquire ID 472655
2109 Market Street, Camp Hill, PA 17011
(717) 737-3405 (fax) 737-3407
Attorneys for PNC Bank, National Association
a
IN THE COURT OF COMMON PLEAS OF ADAMS COUNTY, PENNSYLVANIA
CIVIL ACTION
PNC BANK, NATIONAL ASSOCIATION,
PLAINTIFF
vs.
EDWARD J. ABENDSCHEIN,
DEFENDANT
DOCKET No. 05 - S - 73
MORTGAGE FORECLOSURE
SUMMARY JUDGMENT MOTION
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 et seq., for the entry
of summary judgment in favor of Plaintiff, PNC, for the relief requested in Plaintiff s Complaint,
and avers in support thereof the following:
Procedural History
1. 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 Memorandum 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.)
IT
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 mortgage foreclosure
8. The Defendant's Answer either admits, or elects not to deny, all material allegations
set forth in the Plaintiffs Complaint.
9. Particularly, the Defendant admits in Paragraph 3 of his Amended Answer that he
sited the Note and the Mortgage attached to the Complaint.
10. The Defendant likewise admits in Paragraph 3 of his Amended Answer that he is
the sole owner of the described Property.
11. In Paragraph 7 of his Amended Answer, Defendant does not deny that PNC has
made demand for payment in full.
12. In Paragraph 7 of his Amended Answer, Defendant does not deny that he has
failed or refused to remit full payment under the terms and conditions of the Loan Documents.
13. The Defendant challenges only the legal sufficiency, rather than the occurrence,
of the conditions precedent to the entry of a judgment in foreclosure in Paragraph 7 of default,
notice of acceleration, and demand for payment in full.
14. Plaintiff has averred that the failure to pay the full amount of the Loan when it
was demanded constitutes an event of default under the mortgage, for which reason the mortgage
foreclosure action was instituted, including the demand for attorneys fees. Pursuant to Rule
1035.4, attached hereto and incorporated herein by reference as Exhibit "I" is an affidavit in
support of the allegations contained in Paragraph 8 of Plaintiff's Complaint.
15. Plaintiff believes and therefore avers that there are no genuine issues of any
material fact as to a necessary element of the cause of action set forth in Plaintiff's Complaint in
which could be established by additional discovery or expert report which would require any
issue to be submitted to a jury.
16. Plaintiff asserts that it has established all of the elements of a cause of action in
mortgage foreclosure, and PNC is therefore entitled to summary judgment as a matter of law.
Defendant has failed to assert any 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) and 8(d).
18. However, the Defendant also acknowledges the following provision in the Note
under the paragraph headed "Cost of Prepayment":
Early payments will not, unless agreed to by Lender in writing, relieve Borrower
of Borrower's obligation to continue to make payments under the payment schedule.
Rather, they will reduce the principal balance due and may result in Borrower making
fewer payments.
Defendant's Amended Answer, Paragraph 7(a) and Plaintiff's Complaint, Exhibit "B."
19. The Defendant likewise appears to assert a right to cure the default and reinstate
the terms and conditions of the Loan Documents. See Defendant's Amended Answer, Paragraph
7(c).
20. Pursuant to the terms and conditions of the Loan Documents, upon default and
notice of acceleration, the Defendant is required to pay all amounts due under the Loan
Documents in full, without right of reinstatement.
21. The matter, moreover, is not governed by the provisions of "Act 6" (nor of "Act
91") because the property sought to be foreclosed upon is a commercial property, and not a
"residential mortgage" as that term is defined under "Act 6" and there exists no statutory right of
reinstatement.
22. Moreover, the Defendant failed to admit or deny the specific averment contained
in Paragraph 11 of the Complaint that Act 6 is inapplicable at bar.
23. Pa. R.C.P. No. 1029(b) provides that "averments in a pleading to which a
responsive pleading is required are admitted when not denied specifically or by necessary
implication."
24. Plaintiff believes and therefore avers that the Defendant's averments that he had
paid the Loan in advance or that he has some right of reinstatement do not suffice to avoid the
granting of 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.
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 Plaintiff's 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 J. 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 from Plaintiff and ... using financing from
Plaintiff."
k
.1
32. Defendant does not allege that PNC failed to perform whatever its obligation was
to have been.
33. Defendant does not specify how PNC's ostensible failure damaged the Defendant.
34. Plaintiff therefore avers that the Defendant has failed to allege facts necessary to
support all of the elements of a claim for breach of contract in his First Count counterclaim,
captioned Breach of a Unilateral. Contract, and PNC is therefore entitled to summary judgment as
a matter of law.
35. Defendant ostensibly asserts a cause of action for breach of a quasi-contract in
Counts 2 through 4 of the Defendant's Amended Answer.
36. An express contract already exists to define the parameters of the parties'
respective duties and, as such, equitable remedies of unjust enrichment or quasi-contract are not
permitted.
37. Moreover, the Defendant fails to allege what PNC was to give or perform in
exchange for Defendant's supposed obligations.
38. Defendant does not allege that PNC failed to perform whatever its obligation was
to have been.
39. Defendant does not specify how PNC's ostensible failure damaged the Defendant.
40. Plaintiff therefore avers that the Defendant has failed to allege facts necessary to
support all of the elements of a claim for breach of contract in Counts two, three or four of his
counterclaim, alternatively captioned Intentional Breach of a Quasi-Contract or Negligent
Breach of a Quasi-Contract, and PNC is therefore entitled to summary judgment as a matter of
law.
41. As may be seen from the Affidavit filed in support hereof, the amount due PNC
from Defendant changes over time, even if the delay in payment is due to actions of the
Defendant. Prepayment penalties may increase or even decrease, interest rates may vary,
unanticipated expenses may be incurred, and post-complaint payments may be made by or on
behalf of the Defendant, all of which effect the actual amount due PNC. It is submitted that the
entry of judgment in the amount demanded in the Complaint is appropriate, presuming liability is
established, and a Petition to reassess damages filed prior to execution or satisfaction of such
judgment.
WHEREFORE, Plaintiff, PNC Bank, National Association, restates its demand for
judgment against the Defendant, Edward J. Abendschein, in the amount of $653,605.68, plus
interest at the rate of $210.35 per day, plus continuing attorney fees, expenses and charges, from
January 11, 2005, through the date of payment, including on and after the date of entry of judgment
on the Complaint, and costs, and for foreclosure and sale of the mortgaged property, and such other
relief as the Court deems just and equitable.
Respectfully submitted,
SAIDIS, SHUFF, FLOWER & LINDSAY
Date: L I2 b T By:
C,e ffre uff squire, ID #24848
Ma ew J. Eshe an, Esquire, ID 472655
2109 Market S eet, Camp Hill, PA 17011
(717) 737-3405 (fax) 737-3407
Attorneys for PNC Bank, National Association
I
IN THE COURT OF COMMON PLEAS OF ADAMS COUNTY, PENNSYLVANIA
CIVIL ACTION
PNC BANK, NATIONAL ASSOCIATION,
PLAINTIFF
VS.
DOCKET No. 05 - S - 73
MORTGAGE FORECLOSURE
SUMMARY JUDGMENT MOTION
EDWARD J. ABENDSCHEIN,
DEFENDANT PREVIOUSLY ASSIGNED TO: J. GEORGE
CERTIFICATE OF SERVICE
AND NOW, this day of PCPr 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 of PNC's Motion for Summary Judgment upon the parties listed below via United States Mail,
postage prepaid, addressed as follows:
Edward J. Abendschein, Pro Se Edward J. Abendschein
88 Pollard Road c/o John M. Crabbs, Esq.
Mountain Lakes, NJ 07046 202 Broadway
Hanover, PA 17331
Respectfully submitted,
SAIDIS, SHVFF, gLPVjf4 i & LINDSAY
Date: / L/ '' 1 /0 j By:
Geoffrey S. Shuff, Esquire, ID 424848
Matthew J. Eshelman, Esquire, ID 972655
2109 Market Street, Camp Hill, PA 17011
(717) 737-3405 (fax) 737-3407
Attorneys for PNC Bank, National Association
IN THE COURT OF COMMON PLEAS OF ADAMS COUNTY, PENNSYLVANIA
PNC BANK, NATIONAL ASSOCIATION,
PLAINTIFF
V.
IN THE COURT OF COMMON PLEAS
ADAMS COUNTY, PENNSYLVANIA
EDWARD J. ABENDSCHEIN,
DEFENDANT
NO. 05-S-73
CIVIL ACTION - LAW & EQUITY
Affidavit Partially in Support of and Partially
in Opposition to Plaintiffs Motion for Summary
Judgment
Defendant Edward J. Abendschein, appearing pro se, says:
1. 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 r i
-
October 21, 2001 7
1
November 21, 2001
December 21, 2001 '
January 21, 2002 c-
February 21, 2002 "
March 21, 2002 "
Apri 121, 2002 "
May 21, 2002 "
June 21, 2002 "
July 21, 2002 "
August 21, 2002 "
September 21, 2002 "
October 21, 2002 "
November 21, 2002 "
December 21, 2002 "
January 21, 2003 "
February 14, 2003 80,000.00
March 21, 2003 7,215.33
April 21, 2003 "
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 21, 2004 7,500.00
March 9, 2004 "
March 25, 2004 "
April 28, 2004* 10,000.00
June 1, 2004
July 1, 2004
August 1, 2004
September 1, 2004
October 1, 2004 * 10,500.00
November 1, 2004 * 275.00
2. The total of these payments is $401,950.23
*DATES ARE APPROXIMATE -
exact dates will be provided
3. On November 14, 2005, I paid PNC Bank $60,000 toward my obligations under said
note and mortgage.
4. On or about December 29, 2005, PNC Bank received approximately $505,000 from
New Way Packaging Machinery on its guarantee of the note which is the subject of this
litigation.
5. With the documents included herein, I am forwarding the sum of $57,837.19, which I
believe pays my obligation to PNC Bank, except for any amount due for the following
incidents.
6. On or about January 15, 2003, the branch manager of the Mountain Lakes, New Jersey
branch of PNC Bank noticed that I had accumulated nearly $100,000 in my personal
checking account. She offered to move all or part of that money to CD's, annuities or
other investments to increase the yield on the funds.
7. I explained that my then-wife Deborah had filed suit for divorce in Essex County,
New Jersey in October 2002 and that I wanted to stay liquid.
8. At that meeting, at a later meeting on or about February 1, 2003 and finally at a third
meeting on or about February 15, 2003, the branch manager and I discussed those options
plus the option of protecting PNC Bank during the divorce proceedings by prepaying a
number of months on the note and mortgage that is the subject of this litigation.
9. At no time did the branch manager inform me that I would need 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 half later, 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 of the default, I offered to cure the default, twice
offering 16 checks of at least $7215.33 to complete my obligation to make 59 monthly
payments.
20. Plaintiff was obligated to accept that proffer since it had either deliberately or
unwittingly misled me about the basis of the default in its default notice. I cured the
default in a reasonable time upon being accurately apprised of its true nature.
21. At the meeting on March 28, 2003, Defendant also raised two other issues: a) the
defalcation of $100,030.00 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 of NWI 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. Moul, I had made little effort
to move along the preparation of the September 30, 2002 statement of NWI, Inc. until
April or May 2003, since the corporation owed no corporate income taxes and I didn't
think Plaintiff was requiring them until Mr. Kimmel requested them in that time period.
26. I provided all the financial information that Mr. Kimmel requested except the NWI
statements in July 2003 as requested, but Mr. Kimmel filed a notice of default anyway. I
objected in writing and never received a response, except the usual oral comments that he
would take it up with his superiors.
28. After receiving the financial statement for NWI Inc. for September 30, 2002, Mr.
Kimmel realized it had no information that was useful in the administration of the loan,
just as Mr. Moul and I had realized before entering into the transaction. As such, he
never asked for the September 30, 2003 statement, the September 30, 2004 statement or
the September 30, 2005 statement.
29. Giving Plaintiff $75,000 for this pitifully small three month delay in a document that
has no value was not the intent of the parties is not within the intent of the contract, is not
equitable and would constitute a windfall for Plaintiff.
30. When Mr. Kimmel hadn't taken up the pension defalcation with his superiors by
October, 2004, I stopped making payments in order that he would be forced to confront
his superiors primarily with the pension defalcation and hopefully after that the interest
rate, the written permission to skip payments and waiving the prepayment penalty. In
May 2005, when I understood the reason for his default notice, I offered to cure the
default in a reasonable time by offering 16 checks in the total amount of $140,000. Any
expenses accrued by Plaintiff arose from the unclear notice of default annexed to the
Complaint and its failure to accept those checks.
31. Any expenses incurred by Plaintiff as a result of this series of events were clearly to
be paid by Plaintiff within the meaning the note and mortgage that is the subject of this
litigation. My small part in not realizing that there was a contract term that required
written permission to prepay and skip when an officer of Plaintiff authorized to accept
such a prepayment also failed to inform me is worth no more than $100.
VERIFICATION
I hereby verify that the statements in this Complaint are true and correct to the
best of my knowledge, information and belief. I understand that false statements
are made subject to the penalties of 18P.A.C.S.A Section 4904 relating to
unsworn falsification to authorities.
Date: ?f ('l '6 w r
// Of dan
DEFENDANT'S ARGUMENT PARTIALLY IN SUPPORT OF
AND PARTIALLY IN OPPOSTION TO THE
MOTION FOR SUMMARY JUDGMENT OF PLAINTIFF
Point I.
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 Plaintiff s 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 of a small administrative fee of perhaps $100 for Plaintiff s costs to
understand and implement this unusual but foreseeable event.
IN THE COURT OF COMMON PLEAS OF ADAMS COUNTY, PENNSYLVANIA
PNC BANK, NATIONAL ASSOCIATION,
PLAINTIFF
V.
EDWARD J. ABENDSCHEIN,
DEFENDANT
IN THE COURT OF COMMON PLEAS
ADAMS COUNTY, PENNSYLVANIA
NO. 05-S-73
CIVIL ACTION - LAW & EQUITY
Memorandum in Support of the Annexed
Order, Partially in Support of and Partially
in Opposition to Plaintiffs Motion for Summary
Judgment.
Defendant, Edward J. Abendschein, appearing pro se, asks this Court to sign the annexed
order:
1. Granting 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 $425,704.47 and
a final payment of $599,082.95 due Tuesday, February 21, 2006. The Court does not
need to decide at this time if these moneys are due from passage of time or from a default
of the Defendant, which is a matter of fact and not of law.
2. Granting Plaintiff s 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 admits the delay but
contends that under the circumstances the proposed date was too rigid and that because
the requested information had little value, Plaintiff suffered little or no damage.
3. Granting Plaintiffs Motion to the extent it alleges that Defendant stopped making
payments in full from October 21, 2004 until November 21, 2005 without procuring the
written permission of Plaintiff. Prior to making the largest prepayment, Defendant
procured oral permission from an officer of Plaintiff empowered to accept such
payments, but never got the permission in writing.
4. Denying the balance of Plaintiffs Motion. Point I (pars. 1.1 to 1. 15, infra) deals with
the bulk of the reason for denying the rest of Plaintiffs motion.
5. Setting a Hearing Date of November 1, 2006 to determine the following issues 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 of NWI, Inc. referred to above from July 2003 to October 2003; and
the correct amount of compensation due to Plaintiff from Defendant for his failure to
make payments from October 21, 2004 until November 21, 2004 without first receiving
written permission from Plaintiff; and setting a cut-off date for discovery of September 1,
2006; and setting a cut-off date for filing pre-trial motions of September 15, 2006.
6. Defendant needs this extended time to examine at least three employees of the
corporate loan division, at least one of whom no longer works for Plaintiff; at least one
member of the corporate credit division; and an undetermined number of supervisory
personnel for those four individuals. Seven months for discovery of that magnitude is not
unreasonable.
Point 1.
STATE OF THE CASE
1.1 In January 2005, Edward J. Abendschein, as trustee of the New Way Packaging
Machinery Retirement Income Trust (the "Trust'), filed suit in Adams County to recover
$100,030.00 that Plaintiff PNC Bank had removed from the trust when it was a custodian
of funds.
1.2 In February 2005, Plaintiff filed the instant suit against Edward J. Abendschein in his
personal capacity.
1.3 In March 2005, Defendant answered, contesting the amounts demanded in the suit.
1.4 Defendant also asked that he not be required to make further payments on the note
until the Court heard his claim that the suit was motivated solely by his actions in
protecting the Trust and not by any breach of contract.
1.5 Defendant also filed counterclaims and asked that recovery by Plaintiff be delayed
until those claims could be heard.
1.6 In May 2005, Plaintiff filed suit in Cumberland County against Defendant and two
corporate guarantors owned or controlled by Defendant. The suit against one corporate
guarantor has been discontinued.
1.7 A judgment has been entered against Defendant and the other corporate guarantor as
a result of procedural errors by those parties.
1.8 In June 2005, after extensive settlement discussions between the parties ended,
Plaintiff filed a motion to strike the Answer and Counterclaims of Defendant.
1.9 In August 2005, the Court granted the motion in part and denied it in part.
1.10 In August 2005, Defendant put a rule on Plaintiff to file an amended answer and
counterclaim and to force Plaintiff to consolidate all cases referred to above.
1.11 In September 2005, the Courtin the Abendschein, Trustee case ruled that federal
law preempted the state action and dismissed the case.
1. 12 Also in September 2005, the Court rejected the rule proposed by Defendant to file
an amended answer and counterclaim and set September 30, 2005 for oral argument on
the motion to consolidate.
1.13 Defendant did not receive actual notice of these Orders by the Court until just after
12 noon on Monday, October 3, 2005. They were placed in his mailbox with some other
mail that had been held by the Post Office and not delivered with the rest of the held mail
on September 23, 2005, when the hold order had expired.
1.14 Defendant concluded from the orders in the two cases that the ERISA claims, the
fiduciary indemnity claims and the lender liability claims were to be litigated in federal
court; and the instant case would be confined to the single issue of the amount of money
Defendant owes Plaintiff under the note and mortgage. As such, Plaintiffs proffered
Reply to the rejected Amended Answer is superfluous and to the extent its Motion for
Summary Judgment relies on either that document or Defendant's proffered Amended
Answer and Counterclaim, it should be denied.
1.15 If this is not the case, I ask the Court to allow me to make any additional filings to
put the issue of each amount of money claimed by Plaintiff at issue.
Point 2.
DEFENDANT HAS MADE PAYMENT IN FULL AT THIS TIME
2.1 The Court can and should reject the Affidavit of Mr. Kimmel annexed to the instant
Motion for Summary Judgment ("Plaintiff s 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 may or 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), Plaintiff received
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 Plaintiff's Motion and in any case, reduce the
amount due to Plaintiff on this motion.
2.6 Defendant is also entitled to an earnings credit of approximately $13,000 for early
payment of his obligations to Defendant that may not be included in the figures contained
in the Affidavit of Mr. Kimmel annexed to Plaintiff's Motion.
2.7 The Court should set an evidentiary hearing on the date and amount of all payments
received by Plaintiff and any earnings credit owed to Defendant by Plaintiff.
Point 3
THE SEPTEMBER 30, 2002 FINANCIAL STATEMENT OF NWI, Inc.
WAS OF LITTLE VALUE TO PLAINTIFF AND A REASONABLE DELAY OF
SEVERAL MONTHS IN RECEIVING IT HAD NO DELETERIOUS EFFECT ON
PLAINTIFF
3.1 Mr. Kimmel's Affidavit does not reveal to the Court the fact that from July 2003 until
the present, Plaintiff has been billing Defendant approximately $1,500 per month (or a
total of approximately $75,000) because Defendant was unable to produce a financial
statement of NWI, 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 Plaintiff's 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 of NWI, 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 of NWI 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.
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 Plaintiff's counsel with these papers.
Point 4
DEFENDANT FAILED TO GOT ORAL PERMISSION TO PREPAY PAYMENTS
AND THEN SKIP PAYMENTS. HE FURTHER SOUGHT WRITTEN PERMISSION,
WHICH WAS 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 unreasonably withheld by Plaintiff; and/or that the
notice of default was unclear and when it was clarified, Defendant made a timely offer of
cure that was rejected by Plaintiff; and that in any case, the fair value of the costs
incurred by Plaintiff to be reimbursed by Defendant is $100, which is being forward to
counsel for Plaintiff with a copy of these papers.
4.3 Defendant asks the Court to set this matter down for an evidentiary hearing.
Respectfully Submitted,
Defendant Pro Se
Date:
88 Pollard Road
Mountain Lakes, NJ 07046
717-968-2398
biged48@yahoo.com
IN THE COURT OF COMMON PLEAS OF ADAMS COUNTY, PENNSYLVANIA
PNC BANK, NATIONAL ASSOCIATION,
PLAINTIFF
V.
IN THE COURT OF COMMON PLEAS
ADAMS COUNTY. PENNSYLVANIA
NO. 05-S-73
EDWARD J. ABENDSCHEIN,
DEFENDANT
CIVIL ACTION - LAW & EQUITY
ORDER
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
$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 of NWI, 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 Plaintiff's 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 of NWI, Inc. referred to above from July 2003 to October
2003; and the correct amount of compensation due to Plaintiff from Defendant for his
failure to make payments from October 21, 2004 until November 21, 2004 without first
receiving written permission from Plaintiff; and
Setting a cut-off date for discovery of September 1, 2006; and
Setting a cut-off date for filing pre-trial motions of September 15, 2006.
Signed:
, J.
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PNC BANK NATIONAL IN THE COURT OF COMMON PLEAS OF
ASSOCIATION, CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFF
V.
EDWARD J. ABENDSCHEIN,
DEFENDANT 05-2416 CIVIL TERM
ORDER OF COURT
AND NOW, this day of February, 2006, a Rule is entered
against PNC Bank National Association to show cause why the relief requested herein
should not be granted. Rule returnable ten (10) days after service. Any answer filed
shall be forwarded by the Prothonotary to chambers.
By the Court,
Edgar B. Bayley, J.
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
CIVIL
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
vs.
EDWARD J. ABENDSCHEIN,
Defendant
DOCKET NO. 05-2416 CIVIL
CONFESSION OF JUDGMENT
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 Adams County, Pennsylvania;
(2) against Edward J. Abendschein, 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, Gettysburg, Pennsylvania
17325, Garnishee;
and serve the accompanying Interrogatories to Garnishee upon each Garnishee at the
addresses 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 $706,879.42
Interest from May 10, 2005 at the rate
of $210.35 per day $ (to be added)
Costs $ (to be added)
CERTIFICATION
I certify that (a) This praecipe is based upon a judgment entered by confession; and
(b) 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
Date: February 24, 2006 By:
Ge ey S. huff, Esquire
upreme ourt ID #24848
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
(717) 237-5439
Attorneys for PNC Bank, National
Association
O Q Irl
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C C ? C G G? j
WRIT OF EXECUTION and/or ATTACHMENT
COMMONWEALTH OF PENNSYLVANIA) NO 05-2416 Civil
COUNTY OF CUMBERLAND) CIVIL ACTION-LAW
TO THE SHERIFF OF ADAMS COUNTY:
To satisfy the debt, interest and costs due PNC BANK, NATIONAL ASSOCIATION, Plaintiff (s)
From EDWARD J. ABENDSCHEIN, 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 BANK OF HANOVER, 6 YORK STREET, GETTYSBURG, PA 17325 -- COMMUNITY
BANKS, 29 WASHINGTON STREET, GETTYSBURG, PA 17325 -- SERVE. THE
ACCOMPANYING INTERROGATORIES UPON EACH 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) If property of the defendant(s) not levied upon an subject to attachment is found in the possession
of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a
garnishee and is enjoined as above stated.
Amount Due $706,879.42
L.L.
Interest FROM 5110105 AT THE RATE OF $210.35 PER DAY
Any's Comm % Due Prothy $1.00
Arty Paid $96.40
Plaintiff Paid
Date: MARCH 2, 2006
Other Costs
xothonotary'
(Seal) By
Deputy
REQUESTING PARTY:
Name GEOFFREY S. SHUFF, ESQUIRE
Address: MCNEES WALLACE & NURICK LLC
100 PINE STREET
P.O.BOX 1166
HARRISBURG, PA 17108-1166
Attorney for: PLAINTIFF
Telephone: 717-237-5439
Supreme Court ID No. 24848
PNC BANK, NATIONAL ASSOCIATION, : IN THE COURT OF COMMON PLEAS,
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
VS. : CASE NO. 05-2416
EDWARD J. ABENDSCHEIN,
Defendant CIVIL ACTION - LAW
PNC BANK, NATIONAL ASSOCIATION'S RESPONSE IN OPPOSITION TO
EDWARD J. ABENDSCHEIN'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 modify." (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 unreasonably refused to
acknowledge his obligation to pay the indebtedness.
17. Denied. PNC has not received the $57,837.15 referred to in paragraph 15 of the
Petition, and $499,901.30 said that PNC received as a result of the garnishment has not satisfied
Mr. Abendschein's indebtedness in full.
18. Denied. PNC only filed a motion for summary judgment in the Adams County
mortgage foreclosure action, and any judgment entered in favor of PNC will not reveal the
current "full and total balance due" since said amount continually changes due to application of
funds received by PNC on account of the indebtedness and continuing interest, costs and
attorney fees. PNC has not obtained a judgment in the foreclosure action, and it is unknown
when, or even if, a judgment may be entered in PNC's favor, so PNC is not in a position to
execute upon the real estate in the foreclosure action.
19. Admitted in 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 for relief should be granted to stop any execution on the
judgments entered in Cumberland County, Pennsylvania, or that the value of Mr. Abendschein's
real property is "many times" the amount still due and owing PNC. PNC is unaware of the
current condition of Mr. 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 of Mr. Abendschein's real property.
20. Denied. The relationship between Abendschein and PNC is a relationship at law,
based upon the agreements and documents that evidence and/or secure Mr. Abendschein's
indebtedness to PNC. The loan documents executed for Mr. Abendschein's indebtedness to PNC
contain provisions authorizing PNC to exercise any and all rights and remedies provided in the
loan documents or at law or in equity at any time or times and in any manner or order as PNC
may elect, and contain provisions authorizing PNC to proceed against any obligor or the property
of any obligor without proceeding against any other obligor or the property of any other obligor,
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
motion that has no basis in law or fact. Furthermore, Mr. Abendschein has failed to produce any
evidence that the value of his real property in Adams County, Pennsylvania is "many times" the
amount still due and owing PNC. Mr. Abendschein has caused his own harm by failing to pay
4
the entire amount of the judgment confessed in favor of PNC and therefore does not qualify for
the relief sought in the Petition. See Home Owners' Loan Corp. v. Crouse, 30 A.2d 330, 332
(Pa.Super. 1943) ("[c]ourts of equity will not relieve a party from the consequences of an error
due to his own ignorance or carelessness when there were available means which would have
enabled him to avoid the mistake if reasonable care had been exercised.").
WHEREFORE, PNC Bank, National Association requests this Court enter an Order
denying any request to stay execution in the above captioned case.
McNEES WALLACE/&NURICK LLC
Date: March 8, 2006 By: 0 Z,/ iz,?,
Clayt W. Dad son, Esquire
PA I.D. No.: 79 39
Geoffrey S. Shuff, Esquire
PA I.D. No.: 24848
100 Pine Street, P.O. Box 1166
Harrisburg, PA 17108-1166
cdavidson@mwn.com
(717) 232-8000
Attorneys for PNC Bank, National Association
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
Clayton A. Davids n, Esquire
VERIFICATION
I, Eric Krimmel, Vice President of PNC 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. § 4904
relating to unworn falsification to authorities.
?-'L Q
Eric Krimmel
Vice President
It
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
VS.
EDWARD J. ABENDSCHEIN,
Defendant
DOCKET NO. 05-2416 CIVIL
CONFESSION OF JUDGMENT
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 Edward J. Abendschein, 210 North Blettner Avenue, 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 each Garnishee at the
addresses 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 $706,879.42
Interest from May 10, 2005 at the
rate of $210.35 per day $ (to be added)
Costs $ (to be added)
CERTIFICATION
I certify that (a) This praecipe is based upon a judgment entered by confession; and
(b) 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
Date: March 15, 2006 By:
C?eo#eq huff, Esquire
Supreme t5ourt ID #24848
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
(717) 237-5439
Attorneys for PNC Bank, N. A.
I^?
V)
1 ? "' C C G
C C C ? ?
s ,:
WRIT OF EXECUTION and/or ATTACHMENT
COMMONWEALTH OF PENNSYLVANIA) N005-2416 Civil
COUNTY OF CUMBERLAND) CIVIL ACTION-LAW
TO THE SHERIFF OF CUMBERLAND COUNTY:
To satisfy the debt, interest and costs due PNC BANK, NATIONAL ASSOCIATION, Plaintiff (s)
From EDWARD J. ABENDSCHEIN, 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 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
GARNISHEE(S) as follows:
and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from
paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant
(s) or otherwise disposing thereof;
(3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession
of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a
garnishee and is enjoined as above stated.
Amount Due $706,879.42 L.L.
Interest FROM 5110105 AT THE RATE OF $210.35 PER DAY
Arty's Comm % Due Prothy $1.00
Arty Paid $111.90 Other Costs
Plaintiff Paid
Date: MARCH 16, 2006
(Seal)
REQUESTING PARTY:
Name GEOFFREY S. SHUFF, ESQUIRE
Address: MCNEES WALLACE & NURICK LLC
100 PINE STREET
P O BOX 1166
HARRISBURG, PA 17108-1166
Attorney for: PLAINTIFF
Telephone: 717-237-5439
Supreme Court ID No. 24848
vcN uLy
TF" CO" ROM INCOM
106"Nw W4* 1W. i fire two Sat ony t%mv
-?4 rOr imam of fii/ ? ? ft.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
PNC BANK, NATIONAL
ASSOCIATION,
Plaintiff
No. 05-2416 Civil Term
V.
CONFESSION OF JUDGMENT
EDWARD J. ABENDSCHEIN,
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: 3/N/`06
By \\?
Glenn R. Davis
Attorney I. D. No. 31040
1700 Bent Creek Boulevard, Suite 140
Mechanicsburg, PA 17050
(717) 620-2424
106528
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
PNC BANK, NATIONAL
ASSOCIATION,
Plaintiff
No. 05-2416 Civil Term
V.
CONFESSION OF JUDGMENT
EDWARD J. ABENDSCHEIN,
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. No.
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.
106528
11. On or about September 12, 2005, Plaintiff filed a levy upon the Defendant
herein which named the Bank of Hanover as a Garnishee; the levy indicated the amount
due Plaintiff to be $706,879.42.
12. Along with the above-referenced levy, Plaintiff served Interrogatories to
Garnishee, on the Bank of Hanover, which were answered by the Bank in accordance
with the Pennsylvania Rules of Civil Procedure on or about October 31, 2005.
13. In its Answer to the Plaintiff's previous Interrogatories, the Bank of
Hanover identified that it held no assets or accounts of Defendant Abendschein.
14. In Plaintiff's Interrogatories, it states, "These Interrogatories shall be
deemed to be continuing Interrogatories, if after the time of your answer, you or anyone
acting on your behalf learn or obtain additional information requested, but not supplied
in your answers, you should promptly furnish a supplemental answer under oath
containing the same."
15. Plaintiff filed a second levy against Defendant naming the Bank of
Hanover as a Garnishee on or about March 2, 2006.
16. Accompanied along with the afore-mentioned second levy, the Plaintiff
served the Bank of Hanover with a second set of Interrogatories which are identical to
the first set previously served on and answered by the Bank of Hanover; as before, the
Bank of Hanover holds no assets or accounts of Defendant Abendschein
17. The Bank of Hanover is entitled to an award of counsel's fees under 42 Pa.
C.S.A. § 2503 as this section is intended to reimburse an innocent litigant for the expense
made necessary in such matters.
106528 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.
§ 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,
Dated:
LATSHA DAVIS YOHE & MCKENNA, P.C.
By ???Sx7
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
106528 3
VERTRCATIDN
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 falsification to authorities.
Dated: 3- : /- 0006
David Cherrington, Vice President
Deposit Operations
)LW28
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 below upon the following:
Service by first-class mail addressed as follows:
Geoffrey S. Shuff, Esq.
McNees Wallace & Nurick LL.P
100 Pine Street
P. O. Box 1166
Harrisburg, PA 17108-1166
Service by certified mail addressed as follows:
Edward J. Abendschein
210 North Blettner Avenue
Hanover, PA 17331
Dated: ?J D fo
k44?it2
Helen Samuels
Legal Secretary
106528
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
vs.
DOCKET NO. 05-2416 CIVIL TERM
CONFESSION OF JUDGMENT
GARNISHMENT PROCEEDING
EDWARD J. ABENDSCHEIN,
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 March 2, 2006, directing the Sheriff
of Adams County to attach the property of Defendant, Edward J. Abendschein, in the possession
of the Garnishee, Bank of Hanover. Interrogatories to Garnishee were served upon the Bank of
Hanover 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
42 Pa. C.S.A. § 2503, to which this Reply is made, as follows:
10. Denied. Paragraphs 1 through 9 require no response by Plaintiff.
11. Admitted in part, denied in part. On September 12, 2005, a Writ of Execution in
the amount of $706,879.42 was issued upon Praecipe filed by the Plaintiff naming the Bank of
Hanover, among others, as garnishee. It is also denied that the Answer constitutes "new matter"
as provided in Rule 3145(b) of the Pennsylvania Rules of Civil Procedure, and that the Answer is
even in any way relevant to the current Interrogatories.
12. Admitted in part, denied in part. The Answer is admitted, except that the Sheriffs
Return states that service of the Writ of Execution and the Interrogatories was made on October
19, 2005. It is also denied that the Answer constitutes "new matter" as provided in Rule 3145 (b)
of the Pennsylvania Rules of Civil Procedure, and that the Answer is even in any way relevant to
the current Interrogatories.
13. Admitted in part, denied in part. It is admitted that Garnishee answered all of the
previous Interrogatories in the negative. It is also denied that the Answer constitutes "new
matter" as provided in Rule 3145(b) of the Pennsylvania Rules of Civil Procedure, and that the
Answer is even in any way relevant to the current Interrogatories. By way of further answer,
simply answering the current Interrogatories in the negative, as Garnishee did for the previous
Interrogatories, would have been sufficient, as well as proper.
14. Admitted in part, denied in part. It is admitted that the Plaintiff's Interrogatories
contain a statement similar to that purportedly quoted in Garnishee's Answer. However, the
Interrogatories speak for themselves. It is also denied that the Answer constitutes "new matter"
as provided in Rule 3145(b) of the Pennsylvania Rules of Civil Procedure, and that the Answer is
even in any way relevant to the current Interrogatories.
15. Admitted in part, denied in part. It is admitted that on March 2, 2006, a Writ of
Execution was issued upon Praecipe filed by the Plaintiff naming the Bank of Hanover and
another financial institution as garnishees. It is also denied that the Answer constitutes "new
matter" as provided in Rule 3145(b) of the Pennsylvania Rules of Civil Procedure, and that the
Answer is even in any way relevant to the current Interrogatories.
16. Admitted in part, denied in part. It is admitted that the current Interrogatories are
substantially similar to the previous Interrogatories, particularly since the majority of them are
prescribed by Rule 3253 of the Pennsylvania Rules of Civil Procedure. It is admitted that
Garnishee has answered in the negative to all of the current Interrogatories, as Garnishee did for
the previous Interrogatories, which would have been a sufficient, as well as proper, Answer to
the current Interrogatories. However, the Interrogatories speak for themselves. It is also denied
that the Answer constitutes "new matter" as provided in Rule 3145(b) of the Pennsylvania Rules
of Civil Procedure, and that the Answer is even 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. However, it is also denied that the Answer constitutes "new matter" as
provided in Rule 3145(b) of the Pennsylvania Rules of Civil Procedure, and that the Answer is
even in any way relevant to the current Interrogatories.
18. Denied. Pursuant to 42 Pa. C.S.A. § 2503, Garnishee may be entitled to a
reasonable counsel fee as part of the taxable costs of this matter. However, it was only necessary
for counsel in this matter to duplicate and re-date the Answer filed with respect to the previous
Interrogatories, rather than preparing "new matter" that is not properly plead under Rule 3145 (b)
of the Pennsylvania Rules of Procedure or even relevant to the current Interrogatories, which
would not result in counsel fees in a minimum amount of $450.00, which amount is not
reasonable under the circumstances. In fact, Plaintiff should demand an award of attorneys' fees
under 42 Pa. C.S.A. § 2503 for being required to reply to such "new matter", but is not doing so
at this time in the interest of resolving this matter without the need for further use of the
resources of this Court. It is also denied that the Answer constitutes "new matter" as provided in
Rule 3145(b) of the Pennsylvania Rules of Civil Procedure, and that the Answer is even in any
way relevant to the current Interrogatories.
WHEREFORE, Plaintiff respectfully requests the Court enter judgment in favor of PNC
Bank, National Association, and against Garnishee (1) denying Garnishee's demand for
counsel's fees in the minimum amount of $450.00, or any greater amount, from the Plaintiff
under 42 Pa. C.S.A. § 2503, and (2) granting such other relief for the Plaintiff as the Court deems
just and proper.
Respectfully submitted,
McNees Wallace & Nurick LLC
Date: April 19, 2006 By:
Gegffre>r/ . S ff, Esquire
Sup e Co ID #24848
100 Pine S eet, PO Box 1166
Harrisbu , PA 17108-1166
(717) 2{37-5439
Attorneys for PNC Bank, National Association
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
vs.
EDWARD J. ABENDSCHEIN,
Defendant
DOCKET NO. 05-2416 CIVIL TERM
CONFESSION OF JUDGMENT
GARNISHMENT PROCEEDING
PREVIOUSLY ASSIGNED TO: N/A
CERTIFICATE OF SERVICE
AND NOW, this 19th day of April, 2006, I, Geoffrey S. Shuff, Esquire, of the firm of
McNees Wallace & Nurick LLC, hereby certify 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 Edward J. Abendschein
Glenn R. Davis, Esquire
1700 Bent Creek Blvd., Ste 140
Mechanicsburg, PA 17050
For Garnishee Bank of Hanover
Respectfully submitted,
McNees Wallace & Nurick LLC
By:
St reme Court #24848
100 Pine Stree , PO Box 1166
Harrisburg, PA 17108-1166
(717) 237-5439
Attorneys for PNC Bank, National Association
?J
??
.l
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 ASSOCIATION
COURT OF COMMON PLEAS
COUNTY OF CUMBERLAND
vs.
EDWARD J. ABENDSCHEIN
and
NO. 05-2416
WACHOVIA BANK, N.A.,
GARNISHEE
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,
Plaintiff
vs.
EDWARD J. ABENDSCHEIN,
Defendant
: DOCKET NO. 05-2416 CIVIL TERM
CONFESSION OF JUDGMENT
GARNISHMENT PROCEEDING
:PREVIOUSLY ASSIGNED TO: N/A
PRAECIPE
TO THE PROTHONOTARY:
Please dissolve the attachment of Defendant, Edward J. Abendschein's property in the
possession of Community Banks as Garnishee in the above captioned matter.
Respectfully submitted,
McNees Wallace & Nurick LLC
Date: April 25, 2006 By:
7Geo
S. Shuff, Esquire
upreme Court ID #24848
100 Pine`Street, PO Box 1166
Harrisburg, PA 17108-1166
(717) 237-5439
Attorneys for PNC Bank, National Association
N
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff
VS.
EDWARD J. ABENDSCHEIN,
Defendant
: DOCKET NO. 05-2416 CIVIL TERM
CONFESSION OF JUDGMENT
GARNISHMENT PROCEEDING
:PREVIOUSLY ASSIGNED TO: N/A
PRAECIPE
TO THE PROTHONOTARY:
Please dissolve the attachment of Defendant, Edward J. Abendschein's property in the
possession of Wachovia Bank as Garnishee in the above captioned matter.
Respectfully submitted,
McNees Wallace & Nurick LLC
Date: April 25, 2006 By:
zl?
G 'ffref Shuff, E, uire
i`eme Court ID#24848
100 Pine Street, PO Box 1166
Harrisburg, PA 17108-1166
(717) 237-5439
Attorneys for PNC Bank, National Association
49.
cl-
SIRLIN GALLOGLY & LESSER, P.C.
By: Jon C. Sirtin, Esquire
Identification No.: 17498
1529 Walnut Street, Suite 600
Philadelphia, PA 19102
(215) 864-9700
Attorney for Garnishee
PNC BANK, NATIONAL ASSOCIATION
vs.
EDWARD J. ABENDSCHEIN
and
WACHOVIA BANK, N.A.,
t TARNISHFF.
COURT OF COMMON PLEAS
COUNTY OF CUMBERLAND
NO. 05-2416
TO: PNC BANK, NATIONAL ASSOCIATION, Plaintiff
1. No.
2. No, Defendant has no relationship with Wachovia Bank, N.A.
1-6. No.
7. See answer to number two above.
Dated:
WACUOVIA
Legal vruc+ rsvaraau1y
104 Independence Malt East
Wh Floor - PA4418
Philadelphia, PA 19106
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.
4Kathleen Gormley
Manager
Dated: C/ ' 27 'd ,
C O
;Pntp
r -t T1
Ln
?CF "O
3
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SHERIFF'S RETURN - GARNISHEE
CASE NO: 2005-02416 P
COMMONWEALTH OF PENNSLYVANIA
COUNTY OF CUMBERLAND
PNC BANK NA
VS
ABENDSCHEIN EDWARD J
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
ABENDSCHEIN EDWARD J 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 Her .
Sheriff's Costs: So answerw00,v?c
Docketing .00
Service .00
Affidavit .00 R. Thomas Kline
Surcharge .00 Sheriff of Cumberland County
.00
00
04/03/2006
Sworn and subscribed to before me
By
this ( day of - MAN p ty Sheriff
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So ? M i/
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R. Thomas Kline, Sheriff
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WRIT OF EXECUTION and/or ATTACHMENT
COMMONWEALTH OF PENNSYLVANIA)
COUNTY OF CUMBERLAND)
N005-2416 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 EDWARD J. ABENDSCHEIN, 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 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
GARNISHEE(S) as follows:
and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from
paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant
(s) or otherwise disposing thereof;
(3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession
of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a
garnishee and is enjoined as above stated.
Amount Due $706,879.42 L.L.
Interest FROM 5110105 AT THE RATE OF $210.35 PER DAY
Atty's Comm % Due Prothy $1.00
Atty Paid $111.90 Other Costs
Plaintiff Paid
Date: MARCH 16, 2006
/ K
Prothonotary
(Seal) -_By-.
/??
Deputy
REQUESTING PARTY:
Name GEOFFREY S. SHUFF, ESQUIRE
Address: MCNEES WALLACE & NURICK LLC
100 PINE STREET
P0BOX1166
HARRISBURG, PA 17108-1166
Attorney for: PLAINTIFF
Telephone: 717-237-5439
Supreme Court ID No. 24848
C? 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 ASSOCIATION
COURT OF COMMON PLEAS
COUNTY OF CUMBERLAND
vs.
EDWARD J. ABENDSCHEIN
and
WACHOVIA BANK, N.A.,
GARNISHEE
NO. 05-2416
PRAECIPE
TO THE PROTHONOTARY:
Kindly enter a Rule upon Plaintiff to either seek judgment against Garnishee, Wachovia
Bank, N.A., under Rule 3143(g) or to place the issue between Plaintiff and Garnishee upon the list
for trial, or in the alternative, to suffer judgment of non pros against Plaintiff and in favor of
Garnishee, Wachovia Bank, N.A.
Date: \? -
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 ASSOCIATION
vs.
EDWARD J. ABENDSCHEIN
and
COURT OF COMMON PLEAS
COUNTY OF CUMBERLAND
NO. 05-2416
WACHOVIA BANK, N.A., :
GARNISHEE
RULE
TO THE PROTHONOTARY:
AND NOW, this.eday of QP-4, , 2009, a Rule is hereby granted upon Plaintiff
to seek judgment against Garnishee, Wachovia Bank, N.A., under Rule 3143(g) or to place the
issue between Plaintiff, Defendant and Garnishee upon the list for trial within twenty (20) days after
the service hereof or to suffer Judgment of Non Pros against Plaintiff.
2?
/ OTHONOT
ARY
• 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 ASSOCIATION
vs.
EDWARD J. ABENDSCHEIN
and
WACHOVIA BANK, N.A.,
GARNISHEE
To: Geoffrey S. Shuff, Esquire
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108
NOTICE
COURT OF COMMON PLEAS
COUNTY OF CUMBERLAND
NO. 05-2416
Pursuant to Rule 236 of the Supreme Court of Pennsylvania, you are hereby notified that a
Judgment has been entered against you in the above proceeding as indicated below.
X PRAECIPE FOR RULE OF NON PROS
_ JUDGMENT BY DEFAULT
_ MONEY JUDGMENT
_ JUDGMENT IN REPLEVIN
_ JUDGMENT FOR POSSESSION
_ JUDGMENT ON AWARD OF ARBITRATION
_ JUDGMENT ON VERDICT
_ JUDGMENT ON COURT FINDINGS
FILED s
r T)Y"
`;rt S x
r? t ? ? Ira
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 ASSOCIATION
COURT OF COMMON PLEAS
COUNTY OF CUMBERLAND
vs.
EDWARD J. ABENDSCHEIN
and
NO. 05-2416
WACHOVIA BANK, N.A.,
GARNISHEE : ATTORNEY ID#
ORDER TO DISCONTINUE ATTACHM ENT EXECUTION
TO THE PROTHONOTARY:
Kindly mark the attachment against the Garnishee, Wachovia Bank, N.A., discontinued,
upon payment of your costs only.
/'/w
G FF S. PftUFF
A orney for P tiff
RLED--OFr ICE
OF THE PROTHONOTARY
2009 OCT 29 PM 3: 22
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