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HomeMy WebLinkAbout05-2582F: TILES\DATAFILMG.e,. ..m 1[ 11298.1 COW/,& Cremed. 9/20/04 0.OUM Rd,, d 511705 2.55PM Thomas J. Williams, Esquire I.D. 17512 MARTSON DEARDORFF WILLIAMS & OTTO 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff MT. VALLEY FARMS & LUMBER IN THE COURT OF COMMON PLEAS OF PRODUCTS, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 05- CIVIL ACTION - LAW ALAN G. UNGER, Defendant JURY TRIAL DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiffs. You may lose money or property or other rights important to you. 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 REDUCE FEE OR NO FEE: Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 MT. VALLEY FARMS & LUMBER IN THE COURT OF COMMON PLEAS OF PRODUCTS, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 05- CIVIL ACTION - LAW ALAN G. LINGER, Defendant JURY TRIAL DEMANDED COMPLAINT AND NOW, comes Plaintiff, Mt. Valley Farms & Lumber Products, Inc., by its President, Henry L. Taylor, by and through their attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and avers as follows: 1. Plaintiff is Mt. Valley Farms & Lumber Products, Inc., a Pennsylvania corporation licensed to do business in the Commonwealth of Pennsylvania with a business address of 1240 Nawaka Road, Biglerville, Pennsylvania 17307. 2. Defendant is Alan G. Unger, an adult individual whose primary residence is 240 Red Tank Road, Boiling Springs, Pennsylvania 17007. 3. On December 23, 2003, the parties entered into a "SALES AGREEMENT AND LICENSE TO CUT TIMBER" whereby Plaintiffwas to harvest certain lumber on Defendant's above land. A copy of which is attached hereto and marked as Exhibit "A." 4. On or about February 11, 2004, Defendant ordered Plaintiff's workmen to leave his property and refused to let them to harvest lumber. 5. On September 7, 2004, Plaintiff filed aPetition in the United States Bankruptcy Court for the Middle District of Pennsylvania at 1:04-bk-05429-MDF. 6. On March 4, 2005, the aforesaid Bankruptcy Court issued an Order allowing Plaintiff to proceed to harvest Defendant's trees. A copy of the Order is attached hereto and marked as Exhibit "B." 7. Because of the past confrontations, Plaintiff sought a Protective Order from the Court of Common Pleas of Cumberland County enjoining Defendant from interfering with harvesting the trees pursuant to the original contract, Exhibit "C" hereto. 8. Plaintiff was thereafter able to resume the harvesting of Defendant's trees on or about April 14, 2005. 9. Plaintiff was illegally denied the ability to exercise its contract rights pursuant to the original agreement with Defendant, Exhibit "A," from February 11, 2004, until on or about April 14, 2005. 10. While being prevented from exercising its contract rights to harvest timber on Defendant's land, Plaintiff incurred losses in the amount of $1,174,594.49 as more fully set forth below: Date Loss of Income February 2004 $73,316.05 March 2004 $135,617.89 April 2004 $138,478.73 May 2004 $96,098.09 June 2004 $152,997.19 July 2004 $75,584.13 August 2004 $86,216.75 September 2004 $85,067.88 October 2004 $36,763.35 November 2004 $31,789.69 December 2004 $85,107.09 January 2005 $29,710.51 February 2005 $38,681.78 March 2005 $59,995.89 April 2005 $49,169.46 TOTAL LOSS: $1,174,594.49 WHEREFORE, Plaintiff demandsjudgment from Defendant in the amount of 1,174,594.49, plus costs. Respectfully submitted, MARTSON DEARDORFFQWILLIAMS & OTTO By ,T I°?^m? Thomas J. Williams, Esquire 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: May _[9, 2005 Attorneys for Plaintiff J ?' OIL " ?'7 D iT ?J11LLE'f (RR(iS FEiX''l1 iE°'9203 t11tNRY 1_ TAYLOR pmvJoni PFaGE 45 Cllr, VALLEY FARMS & LUMBER PRODUCTS, INC. ? 1240 Nuwukwu Road > 8iglerville, PA ;7.107-9728 PHONE 717-677-6166 FAX 717-677.9283 www. mrValleyfarm,ccorn H'MICHAPL'rAYLOH iVice Prtsid=m I SALES AGRGHMHNr?' AND L,ICHNSH TO CUT TIMBER THIS AGREEMENT, made this day of t-ceiz bed 2002 between hereinafter called seller(s), of ?3(cRr?/t4•i?e,r s ,•.,,e owner !n fee simple of timher ]and of approximately acres located along ?uyn? 14 [_County, rytart? A LS ,' Mt. Valley Farlns and Lumber Products, Inc. , 1240 Nawakwa Road, igI rville, PA 17307 hereinafter called Purchaser. Purchaser is hereby 9-dneied a license to cut and remora the timber from licensor's land pursuant to (he terms and eonditionsA ttainej? in this contract for sale made of even date. Licensor shall have rQnlhs to cut and remove (he timber. Rurchaser shall be deemed to have a vested interest in the land and an casement to come upon the land of Seiler ri?r purposes nr harvesting the h lit) conveyed under this license. Qnre Ls?4 i.S v ?c, IPCQ doh ML)Lsf bL? I -)Ct?)/et? ('O/r;ioval Co.hPiel,'ai 0A5 this agreement shall be recorded in the Recorder of (seeds Office of s bye, in Courtly, "-*r The enforcement and inlerpretalion of this agreement shall he governed by the laws of the State of Maryland. TOWS OFAGRUTWENT . 'frets designated for cutting are marked with ee116 tree marking Faint. (95.-c? ?a? G?95 'ondi(ions of Sale: The Purchaser tlg,rces tot pay the ,seller the .sunl (11 1 for the abovemenlioned lrees on appruximalely_ S'D __ acres. EXHIBIT A VL: [C V-4 !- -O I V i l l urlu,I_ i i rn?i t. 111 . I I I- I -- Payments to be made as follows: 1) $ . io ??ye „(pnntracl sigli? g l? O r 0voo (ti dollars wojL, ee tl? 2) $ 3S-10 Uzv, to dollars BsL.[ch®ry;j, gi D ejc 30 zany 3) $ dollars 4) $ dollars i The Purchaser agrees to waive all claims to the above designated trees unless they are cut _62__ months after all permits and authorizations are obtained. This period will be extended if conditions beyond the control of the Purchaser prohibited him from entering onto the property. 4. Seller guarantees to the Purchaser he is the lawful owner of all trees covered by this agreement, and the sale of said timber is made free and clear of all liens, encumbrances and security interests. Seller agrees to defend against all claims to the contrary, at his expense. P) 5. Seller grants to the Purchaser the righ nd privileges to enter onto the property over the lands held by ers from a public road. He further guarantees should this right of cess be denied to the Purchaser, he shall return all monies paid by t Purchaser for timber he has paid for but not removed unless another ccess of mutual satisfaction can be established. 6. Seller grants the right and privilege to the Purchaser to enter on to the property concerned with this agreement for the purpose of removing timber herein sold. The Purchaser shall have the right to construct any roads or improvements necessary to remove trees. Road and imp ovements shall be located in a location agreeable to both parties. a. Purchaser agrees to maintain all roads and other improvements in a condition as good or better than when logging use began. IV4,,,? v,-l'/e 6??4pF L EYEL //J?f,B? mAr;??qtfr`ro Upon completion of use by the Purchaser he agrees to regrade and o r W5-C,-I stabilize all areas with disturbance caused by logging beyond ordinary wear and tear. Haul roads and skid trails will be returned in a manner that will help prevent erosion. (W 9,4b (13 ke R /I ? r. JT)C(/ ?l C l I U? ry)? Uj r '7a Yl oQ- as c, FYI , 0 ) 1, Q 't 7I i iD:NT VFLLEY FW,11S FAX:717E779283 C5-74? p?iOr CO,Tf?ac?f U? Z m,cjn4-ti a C? riauue5?rv, e 5 c fw o s1$ r/ Ltl I' '?t/ I"Y7 ?cl O u - r .- O se'I e!' T IC G'!Js/cri'?r'U?,' ?j COri? ? Ct??2 F{'{GE _ ? 1J ;-?12.f'? `=IEEE''( R1Pi1S FRX:%1767?383 PgGE 5i 7. Purchaser agrees to hold the Seller harmless from any liabilities resulting eo,pom accidents occurring as a direct result of the timber harvesting eration. Appropriate insurance policies are held ? y the Purchaser' hich ill protect the Seller from all such liabilities. nU'a!^ oltctas Qrr?,o ftufC1jaWv- ctrisd PR,•0r do to rrmme.tce. cA(,6 S. All portions of trees not removed as part of the timber harvekting „ `fuf operation shall be considered as property of the Seller. No operations except those of the Purchaser shall be permitted while harvesting operations are in progress. 4, the event Purchaser is prohibited from harvesting any trees which are included in this agreement, and provided Purchaser has made a reasonably diligent effort to correct any deficiencies and harvest said trees: the Seller agrees to refund any monies which have been paid in adv nee for these trees. J Jr r„ trr?? C , 9? (, v- a ?,? ug f? ??dU??v?t P ?n //er 1,e)( do covn r-#1e,,rMPAJ Lv,ket?. 10. Seller agrees to assme all responsibility for the determination and location of all property and boundary lines. The parties have executed this agreement on the awday of ??P'96y ZP 200. Dater: owner owner Mt. Valley Farms and Lumber Products, Inc. State of Maryland county of on this day of Notary Public, personally appeared, name is subscribed to the within document, purposes herein contained. IN WMg1:SS WHEPor, I hereby set my My commission expires: ss 200_ before me, _ a known to me to be the person whose wledged that he/she executed the foregoing for the and official seal, 1 Sea)) I MRR-28-23015 14:14 IN RE: ALAN G. UNGER Debtor NOUNTAIN UALLEY IN THE UNITED STATES BANKRUPTCY COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 7176779283 IN BANKRUPTCY BK. NO. 1-04-05429 CHAPTER i PROCEEDING MT. VALLEY FARMS & LUMBER PRODUCTS, INC. Movant V. ALAN G. UNGER Respondent RELIEF FROM AUTOMATIC STAY WITH CONCURRENCE OF TRUSTEE WITHOUT CONCURRENCE OF DEBTOR'S COUNSEL ORDER FOR RELIEF FROM _ AUTOMATIC STAY AND NOW, this "`I' day of M&M-V) , 2005, upon presentation and consideration of the Within Motion for Relief from the Automatic Stay, it is hereby ORDERED AND DECREED that the automatic stay is removed with respect to Movant and its action to recover its timber pursuant to the December 28, 2003 Sales Agreement and License to Cut Timber, by which Debtor shall make said timber available for recovery by Mt. Valley harms & Lumber Products, Inc. It is hereby FURTHER ORDERED AND DECREED that Movant may proceed with any action to obtain possession of the timber representing its asset pursuant to the Sales Agreement and License to Cut Timber, a copy of which is attached to its Motion for Relief from the Automatic Stay. It is hereby FURTHER ORDERED AND DECREED that the provisions of Bankruptcy Rule 4001(")(3) are waived and the Order shall be in full force and ellbet upon signature of this Court. BY TIME COURT q/4 CERTIFIED FROM THE RECORD this_ .. day of Clerk, U.S. Ban{l tp qy Curl Ref' ` Deputy 1s/ MARY D. FRANCE U.S. Baakruptcy.ludge FILED HnRRPA URG MAR---?.-_-.__ 1 Clerk, U.St Bankruptcy Court EXHIBIT "B" P.02 TOTAL P.02 MT. VALLEY FARMS & LUMBER PRODUCTS, INC., Plaintiff V. ALAN G. UNGER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-1799 CIVIL TERM ORDER OF COURT AND NOW, this 11th day of April, 2005, after reviewing the exhibits attached to the complaint, and the Defendant having been given notice of the scheduled hearing and not having appeared, it is hereby ordered and directed that Alan G. Unger is enjoined from interfering with Mt. Valley Farms & Lumber Products, Inc. or its employees, subcontractors, or anyone acting on its behalf as they proceed to harvest and remove timber from the Defendant's property pursuant to the agreement of sale dated December 28, 2003. E Edward E. Guido, J. ,P'homas J. Williams, Esquire For the Plaintiff 4 /Ian G. Unger 240 Red Tank Road Boiling Springs, PA 17007 lfh (f r V Irk I r,.. ?:? ziourt ?1 €;5r+,s?, f ?. EXHIBIT "C" VERIFICATION I, Henry L. Taylor, President of Mt. Valley Farms & Lumber Products, Inc. acknowledge I have the authority to execute this Verification on behalf of Mt. Valley Farms & Lumber Products, Inc. and certify the foregoing Complaint is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of this Complaint is that of counsel and not my own. I have read the document and to the extent the Complaint is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent the content of the Complaint is that of counsel, I have relied upon counsel in making this Verification. This statement and Verification are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities, which provides that if I knowingly make false averments, I may be subject to criminal penalties. MT. VALLEY FARMS & LUMBER PRODUCTS, INC. Henry L. T*or, President P:\FILES\ ATAFILE\Genc al\Cumenv\11298 I COM2 ? ? Oo •M1' `r q Y: Q. ? S • 1 ? 1 SHERIFF'S RETURN - REGULAR CASE NO: 2005-02582 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MT VALLEY FARMS & LUMBER PROD VS UNGER ALAN G ROBERT BITNER Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon UNGER ALAN the DEFENDANT , at 1650:00 HOURS, on the 17th day of June , 2005 at 610 ALEXANDER SPRING ROAD CARLISLE, PA 17013 by handing to ALAN G. UNGER a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: So Answers: Docketing Service 18.00 8.88 Postage .37 Surcharge 10.00 R. Thomas Kline nn 37.25 06/20/2005 MDW&O Sworn and Subscribed to before By:: me this ,23Ad_ day of Deputy Sheriff QR 444 C? ?S A.D. Ptothonotary To: Plaintiff MT. VALLEY FARMS & LUMBER PRODUCTS, INC., Plaintiff V. ALAN G. UNGER, Defendant You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from s ice hereof or a judgm_p be ei a gainst you. By: IN THE COURT OF C ON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION LAW NO. 05-258"! JURY TRIAL DEMANDED ANSWER WITH NEW MATTER OF DEFENDANT ALAN G. UNGER AND NOW, comes Answering Defendant, Alan G. Unger, (hereinafter "Answering Defendant"), hereby files his Answer with New Matter to the Complaint of Mt. Valley Farms & Lumber Products, Inc., (hereinafter "P'laintiff') and in support thereof avers as follows: 1. Denied. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth of the averments contained in the corresponding paragraph and strict proof thereof is demanded at the time of trial. 2. Denied. It is denied that the Answering Defendant's primary residence is 240 Red Tank Road, Boiling Springs, Pennsylvania 17007. 3. Admitted in part; Denied in the remainder. It is admitted that a copy of the "Sales Agreement and License to Cut Timber" is attached to Plaintiffs complaint as Exhibit "A". The remaining averments in this paragraph are denied because they refer to a document which speaks for itself and needs no further explanation/interpretation by the parties. 4. Admitted in part; Denied in the remainder. It is admitted that Answering Defendant requested that a certain representative from Plaintiff's company leave Answering Defendant's property due to Plaintiffs breach of certain terms of the Agreement. It is denied that Answering Defendant refused to let Plaintiff harvest timber; rather, Answering Defendant made himself explicitly clear that Plaintiff was to fully comply with the Agreement and conduct itself in an appropriate fashion while conducting harvesting activities on Answering Defendant's property. 5. Denied. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth of the averments contained in the corresponding paragraph and strict proof thereof is demanded at the time of trial. 6. Admitted in part; Denied in the remainder. It is admitted that a copy of the Bankruptcy Order is attached to Plaintiffs complaint as Exhibit "B". The remaining averments in this paragraph are denied because they refer to a document which speaks for itself and needs no further explanation/interpretation by the parties. 7. Admitted in part; Denied in the remainder. It is admitted that a copy of the Protective Order from the Court of Common Pleas of Cumberland County is attached to Plaintiff's complaint as Exhibit "C". The remaining avernents in this paragraph are denied because after reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to why Plaintiff sought said Protective Order and strict proof thereof is demanded at the time of trial and the averments are further denied because they refer to a document which speaks for itself and needs no further explanation/interpretation by the parties. 8. Denied. After reasonable investigation, Answering ]Defendant is without sufficient knowledge or information to form a belief as to the truth of the averments contained in the corresponding paragraph and strict proof thereof is demanded at the time of trial. By of further response, Answering Defendant was not notified by Plaintiff as to the commencement of harvesting activities. 9. Denied. The averments in this paragraph are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure; therefore, they are deemed denied. To the extent that a responsive pleading may be deemed required by the Court, Answering Defendant denies that Plaintiff was "illegally denied the ability to exercise its contract rights pursuant to the original agreement with Answering Defendant, Exhibit A, from February 11, 2004, until on or about April 14, 2005" and strict proof thereof is demanded at trial; rather, nothing that Answering Defendant did or failed to do caused or contributed to Plaintiff's alleged damages. 10. Denied. The averments in this paragraph are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure; therefore, they are deemed denied. To the extent that a responsive pleading may be deemed required by the Court, Answering Defendant denies that Plaintiff was prevented from exercising its alleged contract rights to harvest timber on Answering Defendant's property and that Plaintiff incurred losses in the amount of $1,174,594.49 and strict proof of loss thereof is demanded at trial; rather, nothing that Answering Defendant did or failed to do caused or contributed to Plaintiff's alleged damages. Answering Defendant alleges that the losses claimed by Plaintiff are specious and frivolous. ViREREFORE, Answering Defendant demands that Plaintiff s Complaint be dismissed and that judgment be entered in his favor, together with reasonable counsel fees and costs. NEW MATTER 11. Answering Defendant hereby incorporates his responses to paragraphs I through 10 of the Complaint as fully as if the same were set forth at length herein. 12. Plaintiffs Complaint fails to state a claim upon which relief may be granted. 13. Plaintiffs claims based upon contract, if any, are unenforceable and barred as a result of the failure of, or lack of, consideration. 14. Plaintiffs' claims are barred by application of the doctrines of waiver and/or estoppel. 15. If Plaintiff sustained damages as alleged, which averments of damages are specifically denied, said damages were caused by the acts or omissions of persons or entities other than Answering Defendant and over whom Answering Defendant had no control or right of control and/or for whom Answering Defendant was not/is not responsible. 16. Plaintiffs calculations in paragraph 10 of the Complaint for damages are frivolous, wholly without foundation, based on speculation and should be dismissed. 17. Plaintiff's claims are barred and/or substantially reduced by virtue of any releases or settlements that have been or will be agreed to be executed. 18. Plaintiffs' claims are barred and/or substantially reduced by their failure to mitigate damages. WHEREFORE, Answering Defendant demands that Plaintiff s Complaint be dismissed and that judgment be entered in his favor, together with reasonable counsel fees and costs. Respectfully submitted, Alan Unger I/ 610 Alexander Spring Rd. Carlisle, PA 17013 717-42:2-6579 MT. VALLEY FARMS & LUMBER PRODUCTS, INC., Plaintiff V. ALAN G. UNGER, Defendant IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION LAW NO. 05-2582 JURY TRIAL. DEMANDED CERTIFICATE OF SERVICE I, Alan Unger, do hereby certify that on this 18'h day of July, 2005, I caused a true and correct copy of the foregoing Answer with New Matter on behalf of the Answering Defendant, to be served upon the following persons by hand delivery: Thomas Williams, Esq. Martson Deardorff Williams & Otto 10 East High Street Carlisle, PA 17013 Verification I, Alan Unger, hereby state that I am authorized to make this verification on behalf of Answering Defendant. I further verify that the facts contained within the foregoing Answer with New Matter to the Plaintiff's Complaint are true and correct to the best of my knowledge, information and belief and are made pursuant to 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities. Date: c.. (7l a? F`. FILE.SVDATAFILEAUnerahCurren[" 1298.1predefault Creacd 7/8/05 10'.56AM Revised: 7/15/05 1'.59PM Thomas J. Williams, Esquire David R. Galloway, Esquire MARTSON DEARDORFF WILLIAMS & OTTO I.D. 17512 I.D. 87326 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff MT. VALLEY FARMS & LUMBER PRODUCTS, INC., Plaintiff V. ALAN G. UNGER, Defendant TO THE PROTHONOTARY: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-2582 CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE Enter default judgment in the above-captioned action in favor of Plaintiff and against Defendant in the amount of $1,174,594.49, plus costs of suit as prayed for in the Complaint, for failure to file an Answer to Plaintiff's Complaint. I do hereby certify that a written notice of intention to file this Praecipe was mailed to the Defendant on or about July 8, 2005, which date was subsequent to the date default occurred and at least ten (10) days prior to the date of the Praecipe. MARTSON DEARDORFF WILLIAMS & OTTO Date: July 18, 2005 By 9 Kc. a. Thomas J. Willi' s, Esquire David R. Galloway, Esquire Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff r? n ?.t 'n (. `r` -1 (y_.. _ n ?/? ^'1??'? V ' ?..?1 ('..? ?, :.t -1? -? t`J MT. VALLEY FARMS & LUMBER PRODUCTS, INC., Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-2582 CIVIL ACTION - LAW ALAN G. UNGER, Defendant JURY TRIAL DEMANDED NOTICE OF ENTRY OF DEFAULT JUDGMENT TO: ALAN G. UNGER, DEFENDANT You are hereby notified that on 2005, the following Judgment was entered against you in the above-captioned case: [ ]n t e above caption action for $1,174,594.49, plus costs of suit as prayed for in the Complaint, for failure to file an Answer to Plaintiff's Complaint. Date:q'_? ! S, 1vv7 Protho otary I hereby certify that the name and address of the proper person to receive this notice under Pa. R. Civ. P. 236 is: Mr. Alan G. Unger 610 Alexander Spring Road Carlisle, PA 17013 Date: July 18, 2005 Mr. Alan G. Unger 236 Red Tank Road Carlisle, PA 17013 MARTSON DEARDORFF WILLIAMS & OTTO By; r„ 9 u. Thomas J. WilliSms, Esquire David R. Galloway, Esquire Attorneys for Plaintiff c ?? ?, -n ?? ?. ,?.,, G ? .. 5 _ ?_ t`." ev} :: ?^ ?. r? FVH LES' OATAFILF\6-1,11AGmm?p 11299 1 de(uulmoi Croaled. 7!8105 1056AM Ncvixul_ 718,05 tQ 50AM Thomas J. Williams, Esquire MARTSON DEARDORFF WILLIAMS & OTTO Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff MT. VALLEY FARMS & LUMBER PRODUCTS, INC., Plaintiff V. ALAN G. UNGER, Defendant TO: ALAN G. UNGER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-2582 CIVIL ACTION - LAW JURY TRIAL DEMANDED IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OROBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. 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 Lawyer Referral Service Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone:(717) 249-3166 MARTSON DEARDORFF WILLIAMS & OTTO BYrftiar^44! -V?JIX.V.g tr Thomas illiams, Esquire Ten East High Street Carlisle, PA 17013 (717) 243-3341 Date: July 8, 2005 Attorneys for Plaintiff {') v C7 C" u; -. ? t_. '??? "? } -' aT . r -; , ,-'.• 'y f l 1? ?.) i__! 1 } }:- ? ? ? J L MARI'SON DEARDORFI; WHAIANIS )'rro M Dw O INFORMATION • ADVICR • ADVOCACY 10 EAST HIGH STREET CARLISLE, PENNSYLVANIA 17013 TELEPHONE (717)243-3341 FACSIMILE (717) 243-1850 INTERNET WWW./Hdwo.com July 8, 2005 Mr. Alan G. Unger 610 Alexander Spring Road Carlisle, PA 17013 ATFORNFYS & COUNSELLORS AT LAW WILLIAM F. MARTSON CARL C. RISCH JOHN B. FOWLER III DAVID A. FITZSIMONS DANIEL K. DEARDORFF DAVID R. GALLOWAY THOMAS J. WILLIAMS* CHRISTOPHER E. RICE IVO V. OTTO Ill JENNIFER L. SPEARS GEORGE B. FALLER JR. • HILLARY A. DEAN BOARD CERTIFIED CIVI L TRIAL SPECIALIST RE: Mt. Valley Farms & Lumber Products, Inc. v. Alan G. Unger No. 05-2582- Cumberland County C.C.P. Our File No. 11298.1 Dear Mr. Unger: Enclosed please find a Notice of Intention to File Praecipe for Entry of Default Judgment. Damages will be assessed against you in the amount shown in the Complaint unless you enter a written appearance personally or by attorney and file in writing with the Court your defenses or objections to the claims set forth against you within ten (10) days of the date of this letter. Very truly yours, MARTSON DEARDORFF WILLIAMS & OTTO Thomas J. Williams TJW/tde Enclosure cc: Mt. Valley Farms & Lumber Products, Inc. Attention: Henry L. Taylor, President F:\FILES\DATAFILE\O naal\Cua .\11298.1.ea.1 I N F 0 R M ,A "i I O N A D V I C E • A I) V D C A C Y SIN CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Mr. Alan G. Unger 610 Alexander Spring Road Carlisle, PA 17013 Mr. Alan G. Unger 236 Red Tank Road Boiling Springs, PA 17007 MARTSON DEARDORFF WILLIAMS & OTTO Qn is D. Eckenroa East High Street Carlisle, PA 17013 (717) 243-3341 Dated: July 18, 2005 /? u? r ;5 Y .? ?? ?7 U? --? }? ` T ? ? ? :7 ? ? ? ? ? .. ?. ? w a '1 ? ? :G ? ??? J. PILSSi ATAALE\GM"\CUrt 01298. I.replwlm fatal 7125105 11'.43AM sisal. 7/28105 9.57AM homas J. Williams, Esquire David R. Galloway, Esquire MARTSON DEARDORFF WILLIAMS & OTTO I.D. 17512 I.D. 87326 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff MT. VALLEY FARMS & LUMBER PRODUCTS, INC., Plaintiff V. ALAN G. UNGER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-2582 CIVIL ACTION - LAW JURY TRIAL DEMANDED PLAINTIFF'S REPLY TO NEW MATTER OF DEFENDANT ALAN G. UNGER TO: ALAN G. UNGER, Defendant, prose 11. The averments of Defendant Unger's Answer with New Matter are hereby incorporated by reference. 12-14. Denied. The averments of these paragraphs constitute conclusions of law to which no response or pleading is required by Pa. R.C.P. 1029(a). 15. Denied. To the contrary, Plaintiff's damages were caused solely by Defendant. 16. Denied. To the contrary, Plaintiff has properly and accurately calculated the damages in Paragraph 10 of its Complaint. 17. Denied. To the contrary, Plaintiff has not executed any releases or settlements that would reduce its claim against Defendant. If such release or settlement is signed by Plaintiff, Plaintiff denies any such release or settlement will bar or substantially reduce its claim against Defendant. 18. Denied. To the contrary, Plaintiff attempted to mitigate the damages alleged in its Complaint. WHEREFORE, Plaintiff respectfully requests that this Court dismiss Defendant's New Matter with prejudice and enter judgment in its favor and against Defendant in the amount of $1,174,594.49 plus costs of suit as prayed for in the Complaint. Thomas J. Williams, ire David R. Galloway, Esquire Ten East High Street Carlisle, PA 17013 (717) 243-3341 Date: August 1, 2005 Attorneys for Plaintiff MARTSON DE U RFF WILLIAMS & OTTO By t VERIFICATION I, Henry L. Taylor, President of Mt. Valley Farms & Lumber Products, Inc. acknowledge I have the authority to execute this Verification on behalf of Mt. Valley Farms & Lumber Products, Inc. and certify the foregoing Plaintiff s Reply to New Matter of Defendant Alan G. Unger is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of this Plaintiff s Reply to New Matter of Defendant Alan G. Unger is that of counsel and not my own. I have read the document and to the extent the Plaintiff's Reply to New Matter of Defendant Alan G. Unger is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent the content of the Plaintiffs Reply to New Matter of Defendant Alan G. Unger is that of counsel, I have relied upon counsel in making this Verification. This statement and Verification are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unworn falsification to authorities, which provides that if I knowingly make false averments, I may be subject to criminal penalties. MT. VALLEY FARMS &. LUMBER PRODUCTS, INC. F:WILES\DATAFILE\Gm ,. \Cm .t\11298. L. I CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Plaintiff's Reply to New Matter of Defendant Alan G. Unger was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Mr. Alan G. Unger 610 Alexander Spring Road Carlisle, PA 17013 Mr. Alan G. Unger 236 Red Tank Road Boiling Springs, PA 17007 MARTSON DEARDORFF WILLIAMS & OTTO Y n is D. Eckenroad Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: August 1, 2005 `.l 4 ? r r:? 205 F T1LE5VDATAFILEAGenera1ACurrentAI 1298. L prarealeatatede Revised 328/06 9.15" Thomas J. Williams, Esquire Michael J. Collins, Esquire MARTSON DEARDORFF WILLIAMS & OTTO Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff MT. VALLEY FARMS & LUMBER IN THE COURT OF COMMON PLEAS OF PRODUCTS, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : NO. 05-2582 CIVIL ACTION - LAW ALAN G. UNGER, Defendant : JURY TRIAL DEMANDED PRAECIPE FOR WRIT OF EXECUTION TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please issue writ of execution in the above matter, (1) directed to the Sheriff of Cumberland County; (2) against Alan G. Unger, Defendant; and (3) enter this writ in the judgment index against Defendant; and (4) execute against all real properly in Cumberland County owned by Defendant or in which Defendant holds an interest, including, but not limited to, all real property (legal description attached hereto) as set forth below: a. 610 Alexander Spring Road, Carlisle, Pennsylvania (tax parcel number 40-09- 0527-039). See Exhibit A; and b. 236 Red Tank Road, Boiling Springs, Pennsylvania (tax parcel numbers 40-13-0126-010A). See Exhibit B; and c. 236 Red Tank Road, Boiling Springs, Pennsylvania (tax parcel numbers 40-13- 0126-011). See Exhibit B; and d. 240 Red Tank Road, Boiling Springs, Pennsylvania (tax parcel number 40-13-0126-045). See Exhibit B. (5) Principal Balance, $1,174,594.49 Plus interest from July 18, 2005, at 6% per day, Plus Costs: Total Balance owed to Plaintiff: $ (6) Please attach Affidavit Pursuant to Rule 3129.1 that Plaintiff prepared and is being filed simultaneously with this Praecipe to the writ of execution to the sheriff. Direct the Cumberland County Sheriff to execute upon any and all real and personal property that is owned by the above Defendant. * To be determined by the Sheriff of Cumberland County. MARTSON DEARDORFF WILLIAMS & OTTO By _IJ6 Michael J. Collins, squire Ten East High Street Carlisle, PA 17013 (717) 243-3341 Date: March 28, 2006 Attorneys for Plaintiff rv ? WRIT NO. 05-2582 LEGAL DESCRIPTIONS Exhibit A Cumberland County Deed Book 219, Page 466. TO BE SOLD AS THE PROPERTY OF DEFENDANT ON JUDGMENT ENTERED AT THE ABOVE NUMBER AND TERM. BEGINNING at a point on the southern dedicated right-of-way line of Township road T469, known as Alexander Spring Road, which point at the Place of Beginning is 25.02 feet from the original centerline of said 33 feet wide Alexander Spring Road, and which point at the Place of Beginning is at the dividing line between said Lot No. 3-E and land now or formerly of Enola Construction Co., Inc., thence from said point at the Place of Beginning along the southern dedicated right-of--way line of said Alexander Spring Road the following two (2) courses and distances: (1) North 77 degrees 20 minutes 12 seconds East a distance of 94.36 feet to a point; and (2) North 78 degrees 01 minute 03 seconds East a distance of 179.40 feet to a point at the dividing line between Lots Nos. 3-1) and 3-E; thence along said dividing line between said Lots Nos. 3-D and 3-E, South 10 degrees 30 minutes. 32 seconds East a distance of 297.09 feet to a point in line of lands formerly of A. C. Kuhn and Son, Inc., and now or formerly of Allen Distribution; thence along the northern line of said land now or formerly of Allen Distribution, South 79 degrees 29 minutes 28 seconds West a distance of 273.63 feet to a point in line of said land now or formerly of Enola Construction Co., Inc.; thence along the eastern line of said land now or formerly of Enola Construction Co., Inc., North 10 degrees 30 minutes 32 seconds West a distance of 288.93 feet to a point at the Place of BEGINNING. f,xR-1Pl-r A AB that certain lot of ground situate in South Middleton Township, Cumberland County, Pennsylvania, bounded and described in accordance with Final Subdivision Plan for A. C. Kuhn and Son, Inc., prepared by Statler & Lahr dated May 6, 1988, a copy of which was recorded January 17, 1989, in the hereinafter named Recorder's Office in Plan Book 57, Page 42 as follows: Exhibit B Cumberland County Deed Book 256, Page 2900. TO BE SOLD AS THE PROPERTY OF DEFENDANT ON JUDGMENT ENTERED AT THE ABOVE NUMBER AND TERM. TRACT NO. 1 ALL that certain tract of land situate in South Middleton Township, Cumberland County, Pennsylvania, bounded and described according to "Final Subdivision Plan for Old Town Run Mountain Lodge", as prepared by John K. Bixler, III, PLS, dated October 15, 1996, revised October 30, 1996, and recorded in Cumberland County Plan Book 74, Page 32 , as follows: BEGINNING at an existing P.K. nail in Red Tank Road, T-542, at the common property comer of land of Dale F. Shughart and Lot No. 5; thence along lands of Dale F. Shughart, South 12 degrees 10 minutes 42 seconds West 603.76 feet to an existing iron pin; thence continuing along lands of Dale F. Shughart, the following 8 courses and distances: 1) South 40 degrees 41 minutes 13 seconds West 303.02 feet to an existing iron pin; 2) South 17 degrees 33 minutes 00 seconds West 184.49 feet to a 10 inch oak tree; 3) North 79 degrees 06 minutes 08 seconds West 55.33 feet to an existing iron pin; 4) South 12 degrees 27 minutes 52 seconds West 18.41 feet to an existing iron pin; 5) South 41 degrees 37 minutes 17 seconds East 120.06 feet to an existing iron pin; 6) South 51 degrees 41 minutes 05 seconds East 106.13 feet to an existing iron pin; 7) South 40 degrees 21 minutes 21 seconds East 19.66 feet to an existing iron pin; 8) South 82 degrees 20 minutes 18 seconds East 541.25 feet to an existing iron pin located at the common property comer of lands of Dale F. Shughart, Dale F. Shughart, Jr. and Lot No. 5; thence along land of Dale F. Shughart, Jr., South 07 degrees 44 minutes 26 seconds West 123.60 feet to an existing iron pin; thence along land of Dale F. Shughart and through points located in the thread of Old Town Run, the following 19 courses; 1) South 06 degrees 19 minutes 00 seconds West 17.13 feet; 2) South 10 degrees 38 minutes 06 seconds East 29.88 feet; 3) South 08 degrees 57 minutes 01 second East 28.00 feet; 4) South 10 degrees 28 minutes 36 seconds West 91.64 feet; 5) South 17 degrees 15 minutes 00 seconds West 23.18 feet; 6) South 45 degrees 31 minutes 14 seconds West 25.42 feet; 7) South 45 degrees 29 minutes 04 seconds West 20.57 feet; 8) South 11 degrees 05 minutes 22 seconds West 28.09 feet; 9) South 03 degrees 39 minutes 29 seconds West 28.65 feet; 10) South 16 degrees 39 minutes 22 seconds West 36.71 feet; 11) South 22 degrees 48 minutes 57 seconds West 22.94 feet; 12) South 34 degrees 44 minutes 33 seconds West 18.24 feet; 13) South 29 degrees 10 minutes 47 seconds West 18.93 feet; 14) South 69 - I F31 T' 6 - -- degrees 35 minutes 53 seconds West 19.19 feet; 15) South 49 degrees 28 minutes 46 seconds West 9.83 feet; 16) South 06 degrees 06 minutes 39 seconds West 15.60 feet; 17) South 29 degrees 53 minutes 15 seconds East 19.99 feet; 18) South 33 degrees 32 minutes 40 seconds East 25.54 feet; 19) South 20 degrees 12 minutes 09 seconds East 23.07 feet to a point in the thread of Old Town Run; thence continuing along land of Dale F. Shughart; South 73 degrees 08 minutes 40 seconds East 217.67 feet to a point in centerline of Mountain Road T-548; thence continuing along the centerline of Mountain Road, for the following 7 courses: 1) South 01 degrees 44 minutes 57 seconds East 191.80 feet to a point; 2) on a curve to the right having a radius of 638.34 feet, an arc length of 288.37 feet, a chord bearing of South 10 degrees 39 minutes 41 seconds West and a chord of 285.92 feet to a point; 3) on a curve to the left having a radius of 4793.23 feet, an arc length of 206.43 feet, a chord bearing of South 22 degrees 22 minutes 09 seconds West and a chord of 206.41 feet to a point; 4) on a curve to the right having a radius of 887.20 feet, an arc length of 85.37 feet, a chord bearing of South 23 degrees 53 minutes 31 seconds West and a chord of 85.34 feet to a point; 5) South 30 degrees 59 minutes 20 seconds West 105.19 feet; 6) on a curve to the left having a radius of 35.00 feet, an arc length of 17.61 feet, a chord bearing of South 16 degrees 34 minutes 38 seconds West and a chord of 17.42 feet to a point; 7) South 02 degrees 09 minutes 56 seconds West 52.62 feet to a point; thence along other lands of Old Town Run Mountain Lodge, North 54 degrees 01 minute 26 seconds West 2383.91 feet to an iron pin set; thence along lands of H & K Guy Family Limited Partnership, North 69 degrees 08 minutes 05 seconds East 762.00 feet to an existing stone pile; thence along lands of Harold E. Otto, North 00 degrees 30 minutes 01 second East 581.43 feet to an iron pin set; thence along lands of Richard A. Myers, North 49 degrees 22 minutes 47 seconds East 521.40 feet to an existing stone pile; thence North 09 degrees 42 minutes 35 seconds West 242.16 feet to a P.K. nail set in Red Tank Road, T-542; thence in and through the macadam cartway of Red Tank Road, T-542, North 81 degrees 22 minutes 59 seconds East 258.02 feet to a P.K. nail set; thence continuing in and through the same, South 70 degrees 21 minutes 42 seconds East 277.40 feet to a P.K. nail set; thence continuing in and through the same on a curve to the left having a radius of 178.20 feet and an are length of 158.89 feet, a chord bearing of North 87 degrees 17 minutes 17 seconds East and a chord of 153.68 feet to the point of BEGINNING, CONTAINING 63.042 acres and designated as Lot No. 5 on Plan. Subject to all applicable notes and conditions of municipal government approval relative to the Final Minor Subdivision Plan for Old Town Run Mountain Lodge, Lot No. 5. BEING the same tract of land which Alan G. Unger, a/k/a Alan Grant Unger granted and conveyed unto Shelby Jane Baez, Grantor herein, by deed dated February 2B'' , 2002 and recorded in the Office of the Recorder of Deeds for Cumberland County in Deed Book sfo , Page 1468 . TRACT NO. 2 ALL that certain tract of land situate in South Middleton Township, Cumberland County Pennsylvania, bounded and described according to "Acquisition Parcel", as prepared by John K. Bixler, III, P.L.S., dated April 7, 1999 and attached to prior deed, as follows: BEGINNING at a parker kalon nail located within the macadam cartway of Red Tank Road, T-542, at a common property comer of the land described herein as the Acquisition Parcel and land of Alan G. Unger, Lot No. 5, which is further depicted on a survey document titled Land Acquisition Exhibit for Alan G. Unger; thence along lands now or formerly of Alan G. Unger, South 09 degrees 42 minutes 35 seconds East, a distance of 242.16 feet to a stone pile, thence continuing along land of Alan G. Unger Lot No. 5, South 49 degrees 22 minutes 47 seconds West, a distance of 189.95 feet to a point on the property line of Alan G. Unger, Lot No. 5 at the common property corner of land described herein as Acquisition Parcel and other land of Alan G. Unger, thence along said land of Alan G. Unger, South 74 degrees 28 minutes 31 seconds West, a distance of 3.62 feet to an iron pin located on the property line of Alan G. Unger at the common property corner of land described herein as the Acquisition Parcel and land of Richard A. Myers thence along land of Richard A. Myers, North 48 degrees 33 minutes 11 seconds East, a distance of 82.00 feet to a point; continuing along the same, North 3 degrees 17 minutes 38 seconds West, a distance of 303.10 feet to a point located in the macadam cartway of Red Tank Road, T-542; thence in and through said macadam cartway, North 84 degrees 11 minutes 24 seconds East a distance of 63.02 feet to a point, the place of BEGINNING. CONTAINING 0.4954 acres. BEING the same premises which Alan G. Unger, a/k/a Alan Grant Unger, granted and conveyed to Shelby Jane Baez, Grantor herein by deed dated February +8' 2002 and recorded in the Office of the Recorder of Deeds for Cumberland County in Deed Book sS, Page jVJ . TRACT NO. 3 ALL that certain tract of land situate in South Middleton Township, Cumberland County, Pennsylvania, more particularly bounded and described as follows to wit: BEGINNING at a point at line of land now or formerly of Anna Cecile Simmons; thence by the same and land now or formerly of Lulu C. Bittinger, North 80 degrees East 975 feet to a point; thence by land now or formerly of Daniel V. Ahl, et al, South 53 degrees West 439 feet to a point; thence by the same, South 4 degrees West 594 feet to a point; thence North 74 degrees 30 minutes West 633.6 feet to a point; thence North 10 degrees West 592 feet to the Place of BEGINNING CONTAINING 11.6 acres. BEING the same premises which Alan G. Unger, aWa Alan Grant Unger, granted and conveyed to Shelby Jane Baez, Grantor herein by deed dated February ,.g e , 2002 and recorded n the Office of the Recorder of Deeds for Cumberland County in Deed Book Page 7116P . TRACT NO.4 ALL that certain tract of mountain, land, situate in South Middleton Township, Cumberland County, Pennsylvania, bounded and described pursuant to a survey by Rodney Lee Decker, Registered Surveyor, dated May 23, 1979, as follows: BEGINNING at a stone pile, a comer of land now or formerly of Old Town Run Mountain Lodge and land now or formerly of No V. Otto, Jr. and S. Katherine Guy; thence by land now or formerly of No V. Otto, Jr and S. Katherine Guy, North 26 degrees 13 minutes 20 seconds West 648.4 feet to a point; thence by the same, South 87 degrees 56 minutes 40 seconds East 603.26 feet to a point; thence by land now or formerly of Rhea H. Otto, South 82 degrees 18 minutes 8 seconds East 774.87 feet to a point; thence by land now or formerly of Old Town Run Mountain Lodge, South 67 degrees 10 minutes 45 seconds West 1176.34 feet to the Place of BEGINNING. CONTAINING 7 acres, more or less. BEING the same premises which Alan G. Unger, aWa Alan Grant Unger, granted and conveyed to Shelby Jane Bacz, Grantor herein, by deed dated February W , 2002 and recorded in the Office of the Recorder of Deeds for Cumberland County in Deed Book Page 146,0 VERIFICATION I verify that the statements made in this Affidavit are true and correct to the best of my personal knowledge or information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4804 relating to unsworn falsification to authorities. Henry L. ylor, President/' Date: 1 ?,4z k ?? ?, ,17 ?'??? p?'.?;,. CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent for Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: John M. Hyams Cunningham & Chernicoff, PC 2320 N. Second St. Harrisburg, PA 17110 Mr. Alan G. Unger 610 Alexander Spring Road Carlisle, PA 17013 Mr. Alan G. Unger 236 Red Tank Road Boiling Springs, PA 17007 Mr. Alan G. Unger 240 Red Tank Road Boiling Springs, PA 17007 MARTSON DEARDORFF WILLIAMS & OTTO By / 1 - a A . Price M Ten E High Street Carlisle, PA 17013 (717) 243-3341 Dated: March 28, 2006 V] ? V J r: Y 7 .mot ?s. t r` O .,ry WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) N005-2582 Civil CIVIL ACTION- LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due Mt Valley Farms & Lumber Products Inc. Plaintiff' (s) From Alan G. Unger (1) You are directed to levy upon the property of the defendant (s)and to sell see legal description . (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of 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 $ 1,174,594.49 L.L.$ 0.50 Interest from July 18, 2005 at 6% per day Arty's Comm % Arty Paid $ 119.25 Plaintiff Paid Date: March 28, 2006 (Seal) Due Prothy $ 1.00 Other Costs Prothonotary . By' - Deputy REQUESTING PARTY: Name Michael J. Collins, Esq Marston Deardorff Williams & Otto Address: Ten East High Street Carlisle, Pa. 17013 Attorney for: Plaintiff Telephone: (717)243-3341 Supreme Court ID No. 9s :01 V bz avw 900i 'J6 4A 1 llIIG 1 la,,,,vglI ., lllb} Hi 3Hl JO 30"IHiO F V1LESd3ATAF1MGenera1\Curzenl\11298.1 aflldaviV[de Revised- 328/06 903AM Thomas J. Williams, Esquire Michael J. Collins, Esquire MARTSON DEARDORFF WILLIAMS & OTTO Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff MT. VALLEY FARMS & LUMBER IN THE COURT OF COMMON PLEAS OF PRODUCTS, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : NO. 05-2582 CIVIL ACTION -LAW ALAN G. UNGER, Defendant : JURY TRIAL DEMANDED AFFIDAVIT PURSUANT TO RULE 3129.1 AND NO W, comes Mt. V alley Farms & Lumber Products, Inc., by and through its attorneys at MARTSON DEARDORFF WILLIAMS & OTTO, sets forth as ofthe date of the praecipe for the writ of execution was filed the following information concerning the real property located at: a. 610 Alexander Spring Road, Carlisle, Pennsylvania (tax parcel number 40-09-0527-039); b. 236 Red Tank Road, Boiling Springs, Pennsylvania (tax parcel numbers 40-13-0126-010A); C. 236 Red Tank Road, Boiling Springs, Pennsylvania (tax parcel numbers 40-13-0126-011); d. 240 Red Tank Road, Boiling Springs, Pennsylvania (tax parcel number 40-13-0126-045); This affidavit is filed pursuant to Pennsylvania Rule of Civil Procedure 3129. 1, and follows the Praecipe for Writ of Execution filed by Plaintiffon March 17, 2005 in the above captioned matter. Plaintiff avers as follows: 1. Name and address of owner(s) or reputed owner(s): Alan G. Unger 610 Alexander Spring Road, Carlisle, Pennsylvania Z. Name and address of defendant(s) in the judgment: Alan G. Unger 610 Alexander Spring Road, Carlisle, Pennsylvania 0' 2. Name and address of defendant(s) in the judgment: Alan G. Unger 610 Alexander Spring Road, Carlisle, Pennsylvania 3. Name and address of every lien andmortgage holderon 6 10 Alexander Spring Road, Carlisle, Pennsylvania, (tax parcel number 40-09-0527-039), in order of priority: a. Harris Savin s Bank, Mortgage Book 1606, page 436 dated April 14, 2000 in the amount of $140,000.00. Harris Savings Bank Attn: Business Banking Dept. P.O. Box 1711 Harrisburg, PA 17105 b. Harris Savings Bank, Mortgage Book 1606, page 444 dated April 14, 2000 in the amount of $35,000.00 Harris Savings Bank Attn: Business Banking Dept. P.O. Box 1711 Harrisburg, PA 17105 C. Yale Electric Supply Co., Inc., Docket # 2004-255 dated January 16, 2004. Yale Electric Supply Co., Inc. 2207 Paxton Street Harrisburg, PA 17111 d. GE Supply, Docket # 2004-1740 dated April 16, 2004 in the amount of $6,856.88. GE Supply, a Division of General Electric Co. By its attorney, Matthew D. Baxter, Esq. Bespalov & Gross, P.C. 2655 Philmont Ave., Suite 206 Huntingdon Valley, PA 19006 4. Name and address of every lien and mortgage holder on 236 Red Tank Road, Boiling Springs, Pennsylvania, (tax parcel numbers 40-13-0126-010A), in order of priority: a. Yale Electric Supply Co., Inc., Docket # 2004-255 dated January 16, 2004. Yale Electric Supply Co., Inc. 2207 Paxton Street Harrisburg, PA 17111 b. PA Department of Revenue, Bureau of Compliance, Docket# 2004-822 dated February 23, 2004 in the amount of $3,703.74. PA Department of Revenue Bureau of Compliance Dept. 280948 Harrisburg, PA 17128-0948 C. Department of Treasury. Internal Revenue Service, Docket #2004-1264 dated March 09, 2004, in the amount of $20,625.85. Department of Treasury Internal Revenue Service 5. Name and address of every lien and mortgage holder on 236 Red Tank Road, Boiling Springs, Pennsylvania, (tax parcel numbers 40-13-0126-011), in order of priority: a. Yale Electric Supply Co., Inc., Docket # 2004-255 dated January 16, 2004. Yale Electric Supply Co., Inc. 2207 Paxton Street Harrisburg, PA 17111 b. PA Department of Revenue, Bureau of Compliance, Docket# 2004-822 dated February 23, 2004, in the amount of $3,703.74. PA Department of Revenue Bureau of Compliance Dept. 280948 Harrisburg, PA 17128-0948 C. Department of Treasury, Internal Revenue Service, Docket #2004-1264 dated March 09, 2004, in the amount of $20,625.85. Department of Treasury Internal Revenue Service 6. Name and address of every lien and mortgage holder on240 Red Tank Road, Boiling Springs, Pennsylvania, (tax parcel number 40-13-0126-045), in order of priority: a. Waypoint Bank, Mortgage Book 1832, page 1463 dated April 09, 2003 in the amount of $200,000.00. Waypoint Bank 449 Eisenhower Blvd. Harrisburg, PA 17105 b. Yale Electric Supply Co., Inc., Docket # 2004-255 dated January 16, 2004. Yale Electric Supply Co., Inc. 2207 Paxton Street Harrisburg, PA 17111 C. PA Department of Revenue, Bureau of Compliance, Docket# 2004-822 dated February, 23, 2004, in the amount of $3,703.74. PA Department of Revenue Bureau of Compliance Dept. 280948 Harrisburg, PA 17128-0948 d. Department of Treasury Internal Revenue Service, Docket #2004-1264 dated March 09, 2004, in the amount of $20,625.85. Department of Treasury Internal Revenue Service Plaintiff has no knowledge of the existence of any other person who has any interest in the properties mentioned in this affidavit. MARTSON DEARDORFF WILLIAMS & OTTO B; Y: rMichael J. Collins, squire Sworn ? ?to ? !L and subscribed before me this 2 day of 200 w. No Public COMMONWL I lit u; PENNSYLVANIA Notarial Seal Mary M. Price, Notary Public Cadisle SOM Cumbedand County My COMMiSeion Expires Aug. 18, 2007 Member, Pennsyiv,,,,c, 4,,ociation of Nolerles CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent for Mattson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Affidavit was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: John M. Hyams Cunningham & Chernicoff, PC 2320 N. Second St. Harrisburg, PA 17110 Mr. Alan G. Unger 610 Alexander Spring Road Carlisle, PA 17013 Mr. Alan G. Unger 236 Red Tank Road Boiling Springs, PA 17007 Mr. Alan G. Unger 240 Red Tank Road Boiling Springs, PA 17007 MARTSON DEARDORFF WILLIAMS & OTTO By A4vo Mary rice Ten Ea High Street Carlisle, PA 17013 (717) 243-3341 Dated: March 28, 2006 -? ? --_? ' __ - _ ? ? ..? , __ ? ') it_'= (} _. 1l? ! (vl .n ? ?. ?. FTTLESDATAILE\GenerakCurzem\ 11298,1nouce mWide Aeviud. 3/28/06 901" MT. VALLEY FARMS & LUMBER PRODUCTS, INC., Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-2582 CIVIL ACTION - LAW ALAN G. UNGER, Defendant JURY TRIAL DEMANDED NOTICE OF SALE PURSUANT TO PA.R.C.P. 3129.2 Plaintiff, Mt. Valley Farms & Lumber Products, Inc., by and through its attorneys, Martson Deardorff Williams & Otto, hereby directs notice pursuant to Pa.R.C.P. 3129.2, to all the parties of interest to Alan G. Unger's properties described infra. Upon judgment of the Cumberland County Court of Common Pleas, the following properties currently owned by Alan G. Unger: a. 610 Alexander Spring Road, Carlisle, Pennsylvania (tax parcel number 40-09- 0527-039) b. 236 Red Tank Road, Boiling Springs, Pennsylvania (tax parcel numbers 40-13-0126-010A) C. 236 Red Tank Road, Boiling Springs, Pennsylvania (tax parcel numbers 40-13- 0126-011) and d. 240 Red Tank Road, Boiling Springs, Pennsylvania (tax parcel number 40-13-0126-045). See Exhibit B will be sold pursuant to a sheriffs sale, which will be conducted on the day of 2006 at Pennsylvania. A schedule of distribution will be filed by the sheriff on day of 12006, which will occur no later than 30 days after the foregoing sheriff s sale. The distribution of the sale will be in accordance with the schedule unless exceptions are filed within ten days after the filing of the schedule. MAR'T?SSON?DEARDOR? F 7 LLIAMS & OTTO By '4/I't E (tic l / Michael J. Collins, Esquire Ten East High Street Carlisle, PA 17013 (717) 243-3341 Date: March 28, 2006 Attorneys for Plaintiff PA Department of Revenue Bureau of Compliance Dept. 280948 Harrisburg, PA 17128-0948 Department of Treasury Internal Revenue Service Waypoint Bank 449 Eisenhower Blvd. Harrisburg, PA 17105 MARTSON DEARDORFF WILLIAMS & OTTO By Mary . Price Ten st High Street Carlisle, PA 17013 (717) 243-3341 Dated: March 28, 2006 r CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent for Martson Deardorff Williams & Otto, hereby certify that a copy ofthe foregoing Notice of Sale Pursuant to PA.R.C.P. 3129.2 was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: John M. Hyams Cunningham & Chernicoff, PC 2320 N. Second St. Harrisburg, PA 17110 Mr. Alan G. Unger 610 Alexander Spring Road Carlisle, PA 17013 Mr. Alan G. Unger 236 Red Tank Road Boiling Springs, PA 17007 Mr. Alan G. Unger 240 Red Tank Road Boiling Springs, PA 17007 Harris Savings Bank Attn: Business Banking Dept. P.O. Box 1711 Harrisburg, PA 17105 Yale Electric Supply Co., Inc. 2207 Paxton Street Harrisburg, PA 17111 GE Supply, a Division of General Electric Co. By its attorney, Matthew D. Baxter, Esq. Bespalov & Gross, P.C. 2655 Philmont Ave., Suite 206 Huntingdon Valley, PA 19006 ? i hv5 (_) ? i? -? l Tr .l I ?? _. f`-J __, rr: C _ -???i U, MT. VALLEY FARMS & LUMBER PRODUCTS, INC., Plaintiff V. ALAN G. UNGER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION LAW NO. 05-2582 JURY TRIAL DEMANDED PETITION TO OPEN/STRIICE DEFAULT JUDGMENT AND NOW, comes Petitioner, Alan G. Unger, (hereinafter "Defendant'), hereby files the instant Petition to Open/Strike the Default Judgment by Plaintiff Mt. Valley Farms & Lumber Products, Inc., (hereinafter "Plaintiff") and in support thereof avers as follows: 1. The instant matter before the court was commenced by the filing of a complaint on May 18, 2005. 2. Plaintiffs counsel issued to Defendant a ten day notice of intention to file praecipe for entry of default judgment and related correspondence. A true and correct copy of the notice and correspondence is attached hereto as Exhibit "A". 3. The notice states in relevant part, "[U]nless you act within ten days from the date of this notice, a judgment may be entered against you without hearing and you may lose your property or other important rights." See Exhibit "A". 4. The notice and correspondence are dated Jely 8.2006 and presumeably mailed on same date. 5. When any period of time is referred to in any rule, such period in all cases [s]hall be computed as to exclude the first and include the last day of such period. See Pa.R.C.P. 106. 6. No judgment by default for failure to plead shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered [after] the failure to plead to a complaint and at least ten days prior to the date of the filing of the uraeelve to the party against whom judgment is to be entered and to the party's attorney of record, if any. The ten-day notice period in [this rulel shall be calculated forward from the date of the mailing or delivery in accordance with Rule 106. See Pa.R.C.P. 237.1 a(2)(ii). (emphasis added). 7. Defendant had until the close of the court on July 18, 2006 in which to timely file his Answer with New Matter. 8. On July 18, 2005 Defendant filed an Answer with New Matter to Plaintiffs Complaint. A true and correct copy of the time-stamped copy filed with the prothonotary is attached hereto as Exhibit "B". 9. Also on July 18, 2005, Plaintiff filed a praecipe for entry of default judgment. 10. Pursuant to the Rules of Civil Procedure, Plaintiff could not have been granted a default judgment until July 19, 2005 when the courthouse opened first thing in the morning; i.e. the "race to the courthouse" did not begin until July 19, 2005. 11. Plaintiff was erroneously granted an entry of default judgment to their complaint. 12. Once the entry of the default judgment came to Defendant's attention, Plaintiffs law firm was immediately notified. 13. Plaintiffs counsel was on vacation at the time and his associate was consulted with in regard to this matter. 14. After review of the matter, Plaintiffs law firm indicated that they had procured the default prematurely and indicated that the matter would be taken care of when the partner returned from vacation. 15. Many months went by and it again became apparent that no action had been taken by Plaintiffs counsel to remedy this situation voluntarily. 16. Plaintiff's counsel was again requested to review the matter and take appropriate action voluntarily instead of the time and expense of having to file the instant Petition to Open/Strike. 17. Plaintiff s counsel has refused to voluntarily cooperate in this matter. 18. Due to the course of action that Plaintiffs counsel has chosen to take in regard to this, Defendant has incurred legal fees and demands that Plaintiff reimburse him for these costs. WHEREFORE, Alan Unger requests that a Rule be Issued to Show Cause as to why he should not be permitted to open/strike the default judgment in this matter and that a stay of proceedings in this matter be granted , together with reasonable counsel fees and costs. : R ly s ( t4? `rUnger 610 Alexander Spring Rd. Carlisle, PA 17013 717-422-6579 Verification I, Alan Unger, hereby state that I am authorized to make this verification on behalf of Defendant. I further verify that the facts contained within the foregoing document are true and correct to the best of my knowledge, information and belief and are made pursuant to 18 Pa.C.S. § 4904, relating to unworn falsification to authorities. Alan Unger Date: MT. VALLEY FARMS & LUMBER PRODUCTS, INC., Plaintiff V. IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA CIVIL DIVISION LAW ALAN G. UNGER, : NO. 05-2582 Defendant : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Alan Unger, do hereby certify that on this 24th day of May 2006, I caused a true and correct copy of the foregoing Petition to Open/Strike with Rule to Show Cause to be served upon the following persons by hand delivery: Thomas Williams, Esq. Martson Deardorff Williams & Otto 10 East High Street Carlisle, PA 17013 OA ? - vc/ Alan Unger Date: MAR'rsoN DEARDORFF WILLIAMS & OTTO M DR 1NFORMAIION • AnY10 EAST HIGH S'TREPI' CARLISLE, PENNSYLVANIA 17013 TELEPHONE (717) 243-3341 FACSIMILE (717) 243-1850 INTERNET wwwlndwo.coln July 8, 2005 Mr. Alan G. Unger 610 Alexander Spring Road Carlisle, PA 17013 ATTORNEYS & COUNSELLORS AT LAW WILLIAM F. MARTSON JOHN B. FOWLER III DANIEL K. DEARDORFF THOMAS J. WILLIAMS- IVO V. OTTO III GEORGE B. FALLER )R.* -R"'Rn CFMREI CARL C. RISCH DAVID A. FrrisrMoNs DAVID R. GALLOWAY CHRISTOPHER E. RICF JENNIFER L. SPEARS HILLARY A. DEAN CIVIL T..I. SPECr.ALIS1' RE: Mt. Valley Farms & Lumber Products, Inc. v. Alan G. Unger No. 05-2582- Cumberland County C.C.P. Our File No. 11298.1 Dear Mr. Unger: Enclosed please find a Notice of Intention to File Praecipe for Entry of Default Judgment. Damages will be assessed against you in the amount shown in the Complaint unless you enter a written appearance personally or by attorney and file in writing with the Court your defenses or objections to the claims set forth against you within ten (10) days of the date of this letter. Very truly yours, MARTSON DEARDORFF WILLIAMS & OTTO Thomas J. Williams TJW/tde Enclosure cc: Mt. Valley Farms & Lumber Products, Inc. Attention: Henry L. Taylor, President FInL[swArnFlLe?e.???r,nc?,,.mm r xnelaul EX 4,5, "t- 4 INFORMATION - ADVICE - ADVOCACY SN4 F q I LI-S\DA I'A FILI %Gcumu1'( .-W I L" M 1.6-1.aunu. (-old 7131115 lu "..A% 11--l 7j'1111 10 Thomas J. Williams, Esquire MARTSON DEARDORFF WILLIAMS & OTTO Ten East High Strect Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff MT. VALLEY FARMS & LUMBER PRODUCTS, INC., Plaintiff v. ALAN G. UNGER, Defendant TO: ALAN G. UNGER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-2532 CIVIL ACTION - LAW JURY TRIAL DEMANDED IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. 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 Lawyer Referral Service Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone:(717) 249-3166 Date: July 8, 2005 MARTSON DEARDORFF WILLIAMS & OTTO By Thomas J. Williams, Esquire Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff TO. Plaintiff You are hereby notified to file a written response to the enclosed New Matter within twenty (W) drys from ' hereof ore you. 5 7 MT. VALLEY FARMS & LUMBER : IN THE COURT OF ON PL EAS PRODUCTS, INC., : OF CUMBERLAND COUNT Plaintiff Y : PENNSYLVANIA r V. -._ : CIVIL DIVISION LAW i== m X- ALAN G. UNGER, _ : NO. 05-2582 00 - , Defendant : JURY TRIAL DEMANDED _- = ` = n ANSWER WITH NEW MATTER OF ` Gi DEFENDANT A LAN Q UNGER AND NOW, comes Answering Defendant, Alan G. Unger, (hereinafter "Answering Defendant"), hereby files his Answer with New Matter to the Complaint of Mt. Valley Farms & Lumber Products, Inc., (hereinafter "Plaintiff) and in support thereof avers as follows: I. Denied. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth of the averments oonhuned in the corresponding paragraph and strict proof thereof is demanded at the time of trial. 2. Denied. It is denied that the Answering Defendant's primary residence is 240 Red Tank Road, Boiling Sprnogs, Pa msylvama 17007. 3. Admitted in part; Denied in the remainder. It is admitted that a copy of the "Sales Agreement and License to Cut Timber" is attached to Plamtd 's complaint as Exhibit "A". The remaining avert in this paragraph are denied because they refer to a Ex' 4 ;6 f ?5 MT. VALLEY FARMS & LUMBER PRODUCTS, INC., Plaintiff V. ALAN G. UNGER, Defendant : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL DIVISION LAW : NO. 05-2592 : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Alan Unger, do hereby certify that on this 18° day of July, 2005, I caused a hue and correct copy of the foregoing Answer with New Matter on behalf of the Answering Defendant, to be saved upon the following persons by band delivery: Thomas Williams, Esq. Martson Deardorff Williams & Otto 10 East High sued Carlisle, PA 17013 ;: ?fi1 MT. VALLEY FARMS & LUMBER IN THE COURT OF COMN PLEAS OF PRODUCTS, INC., CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF V. ALAN G. UNGER, Defendant 05-2582 CIVIL CIVIL DIVISION - LAW ORDER OF COURT AND NOW, this 31" day of May, 2006, upon Petition to Open/Strike Default Judgment, IT IS HEREBY ORDERED AND DIRECTED that: 1. A rule is issued upon the Plaintiff to show cause why entitled to the relief requested; 2. The Plaintiff will file an answer to this petition on or 3. A copy of said answer will be filed with this Court; 4. The petition shall be decided under Pa.R.C.P. No. 5. If no answer to the Rule to Show cause is filed by 1 request by Defendant shall be granted. By the N\-?' xomas J. Williams, Esquire Attorney for Plaintiff /Jan G. Unger Defendant bas 00V of the foregoing Defendant is not June 20, 2006; 7; required date, the relief tlt ^?? - ,V?n'J 9 Z :11 Ala I £ M41 903Z Mvic) OJ UL ,ij Ili ?o KU-?C- (1111A F:\FILES\DATAFILE\General\Current\11298. L snswertopetitiontostrikeltde Revised: 6/12/06 3:19PM MT. VALLEY FARMS & LUMBER PRODUCTS, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ALAN G. UNGER, Defendant : NO. 05-2582 CIVIL ACTION - LAW JURY TRIAL DEMANDED ANSWER TO DEFENDANT'S PETITION TO OPEN/STRIKE DEFAULT JUDGMENT TO: ALAN G. UNGER, Plaintiff 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. AND NOW, comes Mt. Valley Farms & Lumber Products, Inc., by and through its attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and answers Defendant's Petition to Open/Strike Default Judgment as follows: 1. Admitted. 2. Admitted that Exhibit "A" in Defendant's Petition to Open/Strike Default Judgment was served on Defendant by Plaintiff. Any attempt to characterize the document is denied as the same speaks for itself. 3. The Notice attached as Exhibit "A" in Defendant's Petition to Open/Strike Default Judgment speaks for itself. Any and all characterizations of the same are specifically denied. 4. It is admitted that the Notice and correspondence are dated July 8, 2006 and it is admitted that they were mailed on that date. 5. Paragraph 5 is a statement of law to which no response is required. To the extent that a response is required, the same is denied. In further answer, it is asserted that Pa.R.C.P. 106, like the Notice and correspondence in Exhibit "A" of Defendant's Petition, speaks for itself. Any and all characterizations of the same are specifically denied. 6. Paragraph 6 is a statement of law to which no response is required. To the extent that a response is required, the same is denied. In further answer, it is asserted that Pa.R.C.P. 237. 1, like the Notice and correspondence in Exhibit "A" of Defendant's Petition, speaks for itself. Any and all characterizations of the same are specifically denied. Moreover, Plaintiffdid wait ten days before filing the Praecipe to Enter Default. Notice was sent on July 8, 2005, and Default was entered on July 18, 2005. Even if you do not count the first day of the period and do count the last day of the period, as per Pa.R. C.P. 106, Plaintiff waited ten days before entering default (9th, l Oth, 11 th, 12th, 13th, 14th, 15th, 16th, 17th, 18th = 10 days). 7. It is specifically denied that Defendant had until the close of courton July 18, 2005 in which to timely file his Answer with New Matter. Plaintiffis unaware of any statute or caselaw that specifically permits filing as long as its done before "the close of court." 8. It is admitted that on July 18, 2005, Defendant filed an Answer with New Matter. It is further admitted that a true and accurate copy of the Answer with New Matter is attached to Defendant's Petition as Exhibit "B." It is specifically denied, however, that Defendant's Answer with New Matter has any legal effect, since the Answer with New Matter was filed after the entry of the Default Judgment. Defendant's only option at this point (besides paying offthe judgment) was to file a Motion to Open/Strike the Judgment, which he did not do for three hundred and ten (310) days. 9. It is admitted that on July 18, 2005, Plaintifffiled a Praecipe for Entry of Default Judgment. By way of further answer, the time stamp on the Praecipe for Entry of Default Judgment was 8:41 a.m., see Exhibit 1, while the time stamp on the Answer with New Matter was 2:58 p.m, see Exhibit 2. Thus, it is apparent that the Praecipe for Entry of Default Judgment was filed first, rendering the subsequent filing of the Answer with New Matter ineffective. 10. Paragraph 10 is a statement of law to which no response is required. To the extent that a response is required, the same is denied. By way of further answer, the Rules of Civil Procedure require that Plaintiff wait at least ten days before entering default. That is exactly what Plaintiff did in this case. Notice was sent on July 8, 2005, and Default was entered on July 18, 2005. Even if you do not count the first day of the period and do count the last day of the period, as per Pa. R. C.P.106, Plaintiff waited ten days before entering default (9th, l Oth,11 th,12th, 13th, 14th, 15th, 16th, 17th, 18th =10 days). Williams v. Wade, 704 A.2d 132 (1998). 11. Paragraph 11 is a statement of law to which no response is required. To the extent that a response is required, the same is denied. 12. It is specifically denied that Plaintiff's law firm was notified by Defendant or Defendant's counsel immediately after entry of the default judgment came to Defendant's attention. By way of further answer, Plaintiff has reviewed Plaintiff's internal files and saw no evidence of such a communication. Moreover, it is believed and therefore averred that no correspondence exists evidencing this communication. 13. After reasonable investigation, Plaintiffis without knowledge or information sufficient to form a belief as to the truth of the allegations contained in ¶ 13. By way of further answer, Plaintiffhas no internal file or correspondence evidencing that Plaintiff s counsel was on vacation at the time alleged in ¶ 13 or that an associate was contacted about the matter. 14. It is specifically denied that Plaintiff's law firm indicated that it procured default prematurely and that the "matter would be taken care of when the partner returned from his alleged vacation. There is no evidence that this communication took place. Moreover, even if it was true that an attorney did represent that the firm would withdraw the entry of default, Defendant waited three hundred and ten (310) days before acting on this matter again. It is Plaintiff's position that the three hundred and ten (310) lapse of time between the entry of default and Defendant's instant Motion to Strike/Open Judgment was unreasonable and that Defendant waived his right to challenge the default judgment by waiting such a long time. 15. It is admitted that many months passed by without action by either party, but it is specifically denied that Plaintiffhad an obligation to take any action on the judgment besides execution. Moreover, even if it was true that an attorney did represent that the firm would withdraw the entry of default, Defendant waited three hundred and ten (310) days before acting on this matter again. It is Plaintiff s position that the three hundred and ten (310) day lapse of time between the entry of default and Defendant's instant Motion to Strike/Open Judgment was unreasonable and that Defendant waived his right ? r to challenge the default judgment by waiting such a long time. With respect to Plaintiffs inaction, Plaintiff was prohibited from taking action on the judgment because of Defendant's then-pending bankruptcy proceeding, which was finally dismissed on March 1, 2006. The instant judgment was entered as a claim in the bankruptcy court and was not contested by Defendant. Attached to this Answer as Exhibit 3 are documents evidencing the bankruptcy proceeding. 16. It is admitted that Plaintiff s counsel was recently contacted to review the matter. Plaintiffs counsel did review the matter and concluded that there was no need to withdraw the entry of default, and in fact, the entry of default had been properly entered. It is specifically denied that this was the second time Plaintiffwas contacted or that Plaintiffis or was under any obligation to withdraw the entry of default in the instant action. 17. It is admitted that after review of the file, Plaintiff, by and through its counsel, has concluded that it is under no obligation to withdraw entry of default. All other allegations, including characterizations thereof, contained in ¶ 18 are denied. 18. It is specifically denied that Plaintiff s decision not to affirmatively withdraw the entry of default j udgment has caused Defendant to incur legal fees. Byway of further answer, Defendant could have decided to pay his debt to Plaintiff instead of litigating the matter three hundred and ten (310) days after the entry of default. NEW MATTER I - UNTIMELINESS 19. Paragraphs 1-18 of Plaintiff's Answer to the immediate Petition are incorporated herein by reference. 20. Default judgment was entered in the above action on Jule 18, 2005. 21. The instant Petition to Open/Strike was filed on May 24, 2006; three hundred and ten (310) days passed from the entry of default judgment to the challenging of the same. 22. Even if what Defendant alleges is true and he was negotiating with Plaintiffto voluntarily open/strike the default j udgment, it is unreasonable for Defendant to have waited three hundred and ten days to file the instant motion. See, e.g., Dumoff v. Spencer, 2000 PA 176, 754 A.2d 1280; WHEREFORE, Mt. Valley Farms & Lumber Products, Inc., requests that this Honorable Court dismiss Defendant Alan Unger's Motion to Open/Strike Judgment. NEW MATTER II - LACK MERITORIOUS DEFENSE 23. Paragraphs 1-22 are incorporated herein by reference. 24. To properly open a j udgment, there are three requirements: l) a promptly filed Petition to Open; 2) Good Excuse for Default; and 3) a Meritorious Defense on the Merits. Trust of White v. Binder, 50 Cumb. 18 (Oler 2000). 25. The Defendant fails all three elements in the instant Petition. 26. First, the instant Petition to Open was filed three hundred and ten (310) days after entry of default. Clearly, the Petition was not filed promptly. 27. Second, Defendant offers no excuse for default. Defendant does not allege that there was a family emergency, that counsel was on vacation, or some other legitimate excuse. Clearly, Defendant had no excuse for default. 28. Third, Defendant offers no Meritorious Defense on the Merits. Defendant failed to allege a reason why Plaintiff should have judgment in its favor. Clearly, Defendant has no meritorious defense. 29. Because Defendant's Petition was not timely and because Defendant has no excuse for default or defense on the merits, Defendant's Petition to Open should be denied. WHEREFORE, Mt. Valley Farms & Lumber Products, Inc., requests that this Honorable Court dismiss Defendant Alan Unger's Motion to Open Judgment. NEW MATTER III - LACK OF FATAL DEFECT 30. Paragraphs 1- 29 are incorporated herein by reference. 31. A Petition to Strike Judgment will not be granted unless a fatal defect in judgment appears on the fact of the record; matters dehors the record will not be considered, and it the record is self- sustaining, judgment will not be stricken. Aquilino v. Philadelphia Catholic Archdiocese, 884 A.2d 1269 (Pa. Super 2005). 32. The record contains no fatal defect with respect to the default judgment entered. 33. Moreover, the record is self-sustaining, because default was entered ten days after serving Defendant the default notice, as required by the Pennsylvania Rules of Civil Procedure. 34. Thus, default judgment in the instant case should not be stricken. WHEREFORE, Mt. Valley Farms & Lumber Products, Inc., requests that this Honorable Court dismiss Defendant Alan Unger's Motion to Strike Judgment. MARTSON DEARDORFF WILLIAMS & OTTO By: Thomas J. Williams squire Michael J. Collins, squire 10 East High Street Carlisle, Pennsylvania 17013 Date: 0 (C / I ( 0 (J EXHIBIT 1 MT. VALLEY FARMS & LUMBER PRODUCTS, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. _ a NO. 05-2582 CIVIL ACTION - LAWP ALAN G. UNGER, c_ T Defendant JURY TRIAL DEMANDED NOTICE OF ENTRY OF DEFAULT JUDGMENT- TO: ALAN G. UNGER, DEFENDANT ?- z? You are hereby notified that on 2005 ?against you in the above-ca tinned case: above , the following Judgment was entered of suit as prayed for in the Complaint, for failure to file antiwac $1,174 e on o for Plaintiffs ,594.49, plus costs Complaint. Date: Pro onotary I hereby certify that the name and address of the proper person to receive this notice Pa. R. Civ. P. 236 is: under Mr. Alan G. Unger 610 Alexander Spring Road Carlisle, PA 17013 3 Lam-' ;;: Date: July 18, 2005 Mr. Alan G. Unger 236 Red Tank Road Carlisle, PA 17013 MARTSON DEARDORFF WILLIAMS & OTTO BY 1-14 Thomas J. lams, Esquire David R. Galloway, Esquire Attorneys for Plaintiff ?, - F:\FILMDATAFILE\General\Currem\11298.1.praddault Created: 7/8105 10 56AM Revised: 7/15/05 1 59FM Thomas J. Williams, Esquire David R. Galloway, Esquire MARTSON DEARDORFF WILLIAMS & OTTO I.D. 17512 I.D. 87326 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff MT. VALLEY FARMS & LUMBER : PRODUCTS IN THE COURT OF COMMON PLEAS OF , INC., : Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. ALAN G. UNGER, Defendant TO THE PROTHONOTARY: NO. 05-2582 CIVIL ACTION - LAW : JURY TRIAL DEMANDED PRAECIPE Enter default judgment in the above-captioned action in favor of Plaintiff and against Defendant in the amount of $1,174,594.49, plus costs of suit as prayed for in the Com laint failure to file an Answer to Plaintiff's Complaint. p ,for I do hereby certify that a written notice of intention to file this Praecipe was mailed to the Defendant on or about July 8, 2005, which date was subsequent to the date default occurred least ten (10) days prior to the date of the Praecipe. and at MARTSON DEARDORFF WILLIAMS & OTTO By ! I Thomas J. W s, Esquire David R. Galloway, Esquire Ten East High Street Carlisle, PA 17013 Date: July 18, 2005 (717) 243-3341 Attorneys for Plaintiff •' F'.FILESlDATAFILE1Gencr:dtCuncnt%I1296 1 dcfanknot Crened 7!8/05 10.56Ak1 Revised 7/(1,'05 10: 59AM Thomas J. Williams, Esquire MARTSON DEARDORFF WILLIAMS & OTTO Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff MT. VALLEY FARMS & LUMBER PRODUCTS, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ALAN G. UNGER, Defendant TO: ALAN G. UNGER, Defendant : NO. 05-2582 CIVIL ACTION - LAW : JURY TRIAL DEMANDED IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. 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 Lawyer Referral Service Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone:(717) 249-3166 MARTSON DEARDORFF WILLIAMS & OTTO By 40 Thomas illiams, Esquire Ten East High Street Carlisle, PA 17013 (717) 243-3341 Date: July 8, 2005 Attorneys for Plaintiff IV1ARl'S0N .)EARD(JIM; WILLIAAIS )'L'fO M INFORMATION • 10 EAST HIGH STREL'T CARLISLE, PENNSYLVANIA 17013 TELEPHONE (717) 243-3341 FACSIMILE (717) 243-1850 INTERNET WWW.ITI(1WO.com July 8, 2005 Mr. Alan G. Unger 610 Alexander Spring Road Carlisle, PA 17013 ATTORNEYS & COUNSELLORS AT LAW WILLIAM F. MARTSON JOHN B. FOWLER 111 DANIEL K. DEARDORFF THOMAS J. WILLIAMS* NO V OTTO III GEORGE R. FALLER JR.* *BOARD CERTIFIEI RE: Mt. Valley Farms & Lumber Products, Inc, v. Alan G. Unger No. 05-2582- Cumberland County C.C.P. Our File No. 11298.1 Dear Mr. Unger: CARL C. RIsCH DAVID A. FITLSIMoNs DAVID R. GALLOWAY CHRISTOPHER E. RICE JENNIFER L. SPEARS HILLARY A. DEAN I CIVIL TRIAL SPECIALIST Enclosed please find a Notice of Intention to File Praecipe for Entry of Default Judgment. Damages will be assessed against you in the amount shown in the Complaint unless you enter a written appearance personally or by attorney and file in writing with the Court your defenses or objections to the claims set forth against you within ten (10) days of the date of this letter. Very truly yours, MARTSON DEARDORFF WILLIAMS & OTTO Thomas J. Williams TJW/tde Enclosure cc: Mt. Valley Famrs' & Lumber Products, Inc. Attention: Henry L. Taylor, President F:\FILES\DATAFILE\Genenl\Cunent\ 11298. I.au. I 1 "4 F () R" A I- I I) Iv A n V I C C• A n V f) r" ??9,?Irr?sc?N L)t:nlil?c>rtr-1- \\'n_I_]nnl? ), rc, M 1NFpIL?1 A"I'll>N • 10 EAST HIGH STREET CARLISLE, PENNSYLVANIA 17013 TELEPHONE (7) 7)243-3341 FACSIMILE (717) 243-1850 INTERNET www nidwoxom July 8; 2005 ATTORNEYS & COUNSELLORS AT LAW WILLIAM F. MARTSON JOHN B. FOWLER III CARL C. RISC:H DANIEL K. DEARDORFF DAVID A. FITLCIMONS DAVID R. GALLOWAY THOMAS J. WILLIAMS* CHRISTOPHER E. RICF NO V. OTTO III JENNIFER L. SPEARS GEORGE B. FALLER JR.* HILLARY A. DEAN *BOARD CeRTIFIED CIVIL TRIAL SPECIALIST Mr. Alan G. Unger 236 Red Tank Road Boiling Springs, PA 17007 RE: Mt. Valley Farms & Lumber Products, Inc. v. Alan G. Unger No. 05-2582- Cumberland County C.C.P. Our File No. 11298.1 Dear Mr. Unger: Enclosed please find a Notice of Intention to File Praecipe for Entry of Default Judgment. Damages will be assessed against you in the amount shown in the Complaint unless you enter a written appearance personally or by attorney and file in writing with the Court your defenses or objections to the claims set forth against you within ten (10) days of the date of this letter. Very truly yours, MARTSON DEARDORFF WILLIAMS & OTTO Thomas J. Williams TJW/tde Enclosure cc: Mt. Valley Farms & Lumber Products, Inc. Attention: Henry L. Taylor, President 1 ?I riR \11A rIQ\4 * Ar) vlr,r , , ACA CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Mr. Alan G. Unger 610 Alexander Spring Road Carlisle, PA 17013 Mr. Alan G. Unger 236 Red Tank Road Boiling Springs, PA 17007 MARTSON DEARDORFF WILLIAMS & OTTO Y is D. Eckenroa en East High Street Carlisle, PA 17013 (717) 243-3341 Dated: July 18, 2005 EXHIBIT 2 i To: Plaintiff MT. VALLEY FARMS & LUMBER PRODUCTS, INC., Plaintiff You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from ce hereof or a juft I inst you. By: ` : IN THE COURT OF C ON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA V. CIVIL DIVISION LAW `- p ALAN G. UNGER, : NO. 05-2582 jJ Defendant : JURY TRIAL DEMANDED' -' ANSWER WITH NEW MATTER OF DEFENDANT ALAN G. UNGER AND NOW, comes Answering Defendant, Alan G. Unger, (hereinafter "Answering Defendant"), hereby files his Answer with New Matter to the Complaint of Mt. Valley Farms & Lumber Products, Inc., (hereinafter "Plaintiff-) and in support thereof avers as follows: 1. Denied. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth of the averments contained in the corresponding paragraph and strict proof thereof is demanded at the time of trial. 2. Denied. It is denied that the Answering Defendant's primary residence is 240 Red Tank Road, Boiling Springs, Pennsylvania 17007. 3. Admitted in part; Denied in the remainder. It is admitted that a copy of the "Sales Agreement and License to Cut Timber" is attached to Plaintiffs complaint as Exhibit "A". The remaining averments in this paragraph are denied because they refer to a document which speaks for itself and needs no further explanation/mterpretation by the parties. 4. Admitted in part; Denied in the remainder. It is admitted that Answering Defendant requested that a certain representative from Plaintiffs company leave Answering Defendant's property due to Plaintiffs breach of certain terns of the Agreement. It is denied that Answering Defendant refused to let Plaintiff harvest timber; rather, Answering Defendant made himself explicitly clear that Plaintiff was to fully comply with the Agreement and conduct itself in an appropriate fashion while conducting harvesting activities on Answering Defendant's property. 5. Denied. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth of the averments contained in the corresponding paragraph and strict proof thereof is demanded at the time of trial. 6. Admitted in part; Denied in the remainder. It is admitted that a copy of the Bankruptcy Order is attached to Plaintiffs complaint as Exhibit "B" The remaining averments in this paragraph are denied because they refer to a document which speaks for itself and needs no further explanation/interpretation by the parties. 7. Admitted in part; Denied in the remainder. It is admitted that a copy of the Protective Order from the Court of Common Pleas of Cumberland County is attached to Plaintiffs complaint as Exhibit "C". The remaining averments in this paragraph are denied because after reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to why Plaintiff sought said Protective Order and strict proof thereof is demanded at the time of trial and the averments are further denied because they refer to a document which speaks for itself and needs no further explanation/interpretation by the parties. 8. Denied. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth of the averments contained in the corresponding paragraph and strict proof thereof is demanded at the time of trial. By of further response, Answering Defendant was not notified by Plaintiff as to the commencement of harvesting activities. 9. Denied. The averments in this paragraph are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure; therefore, they are deemed denied. To the extent that a responsive pleading may be deemed required by the Court, Answering Defendant denies that Plaintiff was "illegally denied the ability to exercise its contract rights pursuant to the original agreement with Answering Defendant, Exhibit A, from February 11, 2004, until on or about April 14, 2005" and strict proof thereof is demanded at trial; rather, nothing that Answering Defendant did or failed to do caused or contributed to Plaintiff's alleged damages. 10. Denied. The averments in this paragraph are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure; therefore, they are deemed denied. To the extent that a responsive pleading may be deemed required by the Court, Answering Defendant denies that Plaintiff was prevented from exercising its alleged contract rights to harvest timber on Answering Defendant's property and that Plaintiff incurred losses in the amount of $1,174,594.49 and strict proof of loss thereof is demanded at trial; rather, nothing that Answering Defendant did or failed to do caused or contributed to Plaintiff s alleged damages. Answering Defendant alleges that the losses claimed by Plaintiff are specious and frivolous. WHEREFORE, Answering Defendant demands that Plaintiffs Complaint be dismissed and that judgment be entered in his favor, together with reasonable counsel fees and costs. NEW MATTER 11. Answering Defendant hereby incorporates his responses to paragraphs 1 through 10 of the Complaint as fully as if the same were set forth at length herein. 12. Plaintiff's Complaint fails to state a claim upon which relief may be granted. 13. Plaintiffs claims based upon contract, if any, are unenforceable and barred as a result of the failure of, or lack of, consideration. 14. Plaintiffs' claims are barred by application of the doctrines of waiver and/or estoppel. 15. If Plaintiff sustained damages as alleged, which averments of damages are specifically denied, said damages were caused by the acts or omissions of persons or entities other than Answering Defendant and over whom Answering Defendant had no control or right of control and/or for whom Answering Defendant was not/is not responsible. 16. Plaintiffs calculations in paragraph 10 of the Complaint for damages are frivolous, wholly without foundation, based on speculation and should be dismissed. IT Plaintiff's claims are barred and/or substantially reduced by virtue of any releases or settlements that have been or will be agreed to be executed. 18. Plaintiffs' claims are barred and/or substantially reduced by their failure to mitigate damages. WHEREFORE, Answering Defendant demands that Plaintiffs Complaint be dismissed and that judgment be entered in his favor, together with reasonable counsel fees and costs. Respectfully submitted, Alan Unger v 610 Alexander Spring Rd. Carlisle, PA 17013 717-422-6579 MT. VALLEY FARMS & LUMBER PRODUCTS, INC., Plaintiff v. ALAN G)UNGER, Defendant : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA CIVIL DIVISION LAW NO. 05-2582 JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Alan Unger, do hereby certify that on this 18" day of July, 2005, I caused a true and correct copy of the foregoing Answer with New Matter on behalf of the Answering Defendant, to be served upon the following persons by hand delivery: Thomas Williams, Esq. Martson Deardorff Williams & Otto 10 East High Street Carlisle, PA 17013 Verification I, Alan Unger, hereby state that I am authorized to make this verification on behalf of Answering Defendant I further verify that the facts contained within the foregoing Answer with New Matter to the Plaintiffs Complaint are true and correct to the best of my knowledge, information and belief and are made pursuant to 18 Pa.C.S. § 4904, relating to unworn falsification to authorities. Date: EXHIBIT 3 1310 (Official Form 10) {Rev. 6/91) United States Bankruptcy Court r pROOF OF CLAIM t 11-5 rn M; r]d1 P District of Pennsylvania ? -- In re (Name of Debtor) Case Number v M Alan G. Unger 1-04-05429 Q =„ I NOTE: This form should not be used to make a claim for an administrative expense arising after the commencement of ' 77 the case. A "request" of payment of an administrative expense may be filed pursuant to 11 U.S.C. § 503. c - Name of Creditor (The person or entity to whom the debtor owes money or property) ? Check box if you are aware that -'? c': tX Mt. Valley Farms & Lumber Products, anyone else has filed a proof of claim relating to your claim. Attach .. ? Name and Addresses Where Notices Should be Sent Inc. copy of statement giving particulars. C7 t. Mt. Valley Farms & Lumber Products ? Check box if you have never received c/o Inc. any notices from the bankruptcy Deborah A. Hughes, Esquire court in this case. PO BOX 961 ? Check box if the address differs Harrisburg PA 1 71 08 from the address on the envelope THIS SPACE IS FOR , Telephone No. 71 7_6c;l _1 777 sent to you by the court. COURT USE ONLY 1 ACCOUNT OR OTHER NUMBER BY WHICH CREDITOR IDENTIFIES DEBTOR: ? replaces Check here if this claim: amends a previously filed claim, dated: ? 1. BASIS FOR CLAIM: C Goods sold ? Retiree benefits as defined in 11 U.S.C. § 1114(a) • Services performed ? Wages, salaries, and compensations (Fill out below) Money loaned Your social security number ? Personal injury/wrongful death Unpaid compensations for services performed ? Taxes from to Other (Describe briefly) (date) (date) 2. DATE DEBT WAS !N 3. IF COURT JUDGMENT, DATE OBTAINED: 7/18/05 4. CLASSIFICATION OF CLAIM. Under the Bankruptcy Code all claims are classified as one or more of the following: (1) Unsecured nonpriority, (2) Unsecured Priority, (3) Secured. It is possible for part of a claim to be in one category and part in another. CHECK THE APPROPRIATE BOX OR BOXES that best describe your claim and STATE THE AMOUNT OF THE CLAIM. X SECURED CLAIM $ ? y 174 5 9 4 49 ? UNSECURED PRIORITY CLAIM $ , Attach evidence of perfection of security interest Specify the priority of the claim. Brief Description of Collateral: X' Real Estate ? Motor Vehicle ? Other (Describe briefly) ? Wages, salaries, or commissions (up to $2000), earned not more than 90 days before filing of the bankruptcy petition or cessation of the debtor's Cumberland County business whichever i earli 11 U S C 507 3 , er)- s . . . § (a)( ) Amount of arrearage and other charges included in secured claim above, ? Contributions to an employee benefit plan-U.S.C. § 507(a)(4) any $ ? Up to $900 of deposits toward purchase, lease, or rental of property or ? UNSECURED NONPRIORITY CLAIM $ services for personal, family, or household use-11 U.S.C. § 507(a)(6) A claim is unsecured if there is no collateral or lien on property of the ? Taxes or penalties of governmental units-11 U.S.C. § 507(a)(7) debtor securing the claim or to the extent that the value of such property is less than the amount of the claim. ? Other-11 U.S.C. §§ 507(a)(2), (a)(5)-(Describe briefly) 5. TOTAL AMOUNT OF CLAIM AT TIME $ $1,174,594.49 $ 1 17 4 _ 59& $ 4 9 - - - CASE FILED: (Unsecured) (Secured) (Priority) (Total) C Check this box if claim includes prepetition charges in addition to the principal amount of the claim. Attach itemized statement of all additional charges. 6. CREDITS AND SETCcFS: The amount of all payments on this claim has been credited and deducted for the purpose of making this proof of claim. In filing this claim, claimant has deducted all amounts that claimant owes to debtor. THIS SPACE IS FOR COURT USE ONLY 7. SUPPORTING DOCUMENTS: Attach copies of supporting documents, such as promissory notes purchase orders , , invoices, itemized statements of running accounts, contracts, court judgments, or evidence of security interests. If the documents are not available, explain. If the documents are voluminous, attach a summary. 8. TIME-STAMPED COPY: To receive an acknowledgement of the filing of your claim, enclose a stamped, self-addressed envelope and copy of this proof of claim. Date Sign and print the name and title, if any, of the creditor or other person authorized to file this claim (attach copy of power of attorney, if any) C1-6-D 5 Deborah A. Hughes, Esquire Penalty for presenting fraudulent claim: Fine of up to $500,000 or imprisonment for up to 5 years, or both. 18 U.S.C. §§ 152 and 3571. MT. VALLEY FARMS & LUMBER PRODUCTS, INC., 11` THE COURT OF COMMON PLEAS OI:: CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 05-2582 CIVIL ACTION -LAW 0 ALAN G. UNGER, _, ,; c __ ?, T Defendant .IL'RY T RIA.L DEMANDED c.' -- r T .... - c? > NOTICE NOTICE OF ENTRY OF DEF .7 ? AULT JUDGI?'IENT TO: ALAN G. UNGER, DEFENDANT 3 '- r- You are hereby notified that on against you in the above-captioned case: 1-ee n 2005, the following Judgment was entered ,594.49, plus costs of suit as prayed for in the Complaint, for failure tbo file antlAnWer to Plaintiffs for S 1, 174 Complaint. Date: (-A / P -4x d k- ?? L R Prot . onota' I hereby certify that the name and address of the proper person to receive this Pa. R. Civ. P. 236 is: notice under Mr. Alan G. Unger 610 Alexander Spring Road Mr. Alan G. Unger Carlisle, PA 17013 236 Red Tam Road Carlisle, PA 17013 Date MARTSON DEARDORFF WILLIAMS & OTTO $y ?? Thomas J. earns, ?1;July 18, 2005 David R. Galloway, Esquire Attorneys for Plaintiff L r -Al . T DEBORAH A HUGHES,ESQ 717 BSI 1778 06/12/06 02:38pm P. 002 UNITED STATES BANKRUPTCY COURT MIDDLE DISTRICT OF PENNSYLVANIA IN RE: Alan G. Unger CHAPTER 7 CASE NO.: 1-04-bk-05429 Debtor(s) ORDER DISMISSING CASE Upon consideration of the Trustee's certification of Debtor's failure to appear at Section 341 (a) meetings and the objection of Debtor to the proposed dismissal of his case, and after notice and hearing the Court has determined that the case is to be dismissed, it is hereby ORDERED that the case is dismissed and it is further ORDERED that the trustee hereby is discharged from further responsibility in this case, and it is further ORDERED that all pending adversary proceedings in this case be and they hereby are dismissed, and it is further ORDERED that any outstanding fees are immediately due and payable to the U.S. Bankruptcy Court. BY THE COURT, Date: March 1, 2006 This electronic order is signed and filed on the same date. W0PA4 NN@M .wrrJ*Vyes 055179 VERIFICATION Michael J. Collins, Esquire, of the firm of MARTSON DEARDORFF WILLIAMS & OTTO, attorneys for Plaintiff in the within action, certifies that the statements made in the foregoing Answer to Defendant's Petition to Open/Strike Default Judgment are true and correct to the best of his knowledge, information and belief. He understands that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent for Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Answer to Defendant's Petition to Open/Strike Default Judgment was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Mr. Alan G. Unger 610 Alexander Spring Road Carlisle, PA 17013 Mr. Alan G. Unger 236 Red Tank Road Boiling Springs, PA 17007 Mr. Alan G. Unger 240 Red Tank Road Boiling Springs, PA 17007 MARTSON DEARDORFF WILLIAMS & OTTO By Mary rice Ten Ea High Street Carlisle, PA 17013 (717) 243-3341 Dated: June 11, 2006 ?"'? r., ,,? . `'i ? :y,i r r'v ,. , .?._ _ -.._ c-.? .? F:\FILES\DATAFILE\General\Carrent\I 1298. Lpra Created: 6/I9/06 9:23AM Revised. 6/19/06 9:31 AM MT. VALLEY FARMS & LUMBER PRODUCTS, INC., Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-2582 CIVIL ACTION - LAW ALAN G. UNGER, Defendant JURY TRIAL DEMANDED PRAECIPE To the Prothonotary: Please substitute the attached Verification for the one filed with the Plaintiff s Answer to Defendant's Petition to Open/Strike Default Judgment. MARTSON DEARDORFF WILLIAMS & OTTO AA , ?' 1 By Michael J. Collins Attorney I.D. No. 200427 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: G _ Attorneys for Plaintiff r VERIFICATION I verify that the statements made in this Answer are true and correct to the best of my personal knowledge or information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4804 relating to unsworn falsification to authorities. ?- Henry L. Ta r, resident Date: Q ` Tw 'w A? RECEIN/Ft JUN 1_ g 2006 Dr MT. VALLEY FARMS & LUMBER PRODUCTS, INC., Plaintiff V. ALAN G. UNGER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION LAW : NO. 05-2582 : JURY TRIAL DEMANDED RESPONSE TO PLAINTIFF'S NEW MATTER AND NOW, comes Petitioner, Alan G. Unger, (hereinafter "Defendant"), hereby files the instant Response to New Matter filed by Plaintiff Mt. Valley Farms & Lumber Products, Inc., (hereinafter "Plaintiff") and in support thereof avers as follows: NEW MATTER I - UNTIMELINESS 19. This paragraph is a paragraph of incorporation to which requires no response. 20. It is admitted that Plaintiff caused to be entered a default judgment in the above- matter on July 18, 2005 ; however, as evidenced by the facts of record, the default judgment is fatally defective as Plaintiff did not wait the requisite ten days after serving the ten-day notice to erroneously file the default judgment. 21. It is admitted that the instant Petition to Open/Strike was filed on May 24, 2006; however, Plaintiffs counsel was notified on several occasions in regard to the default judgment prior to this date, and it was Defendant's expectation that the instant issue would be resolved amicably due to the uncontroverted facts of record. 22. The averments in this paragraph are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure; therefore, they are deemed denied. WHEREFORE, Alan Unger requests that this Honorable Court to open/strike the default judgment in this matter and that a stay of proceedings in this matter be granted, together with reasonable counsel fees and costs. NEW MATTER II-LACK MERITORIOUS DEFENSE 23. This paragraph is a paragraph of incorporation to which requires no response. 24. The averments in this paragraph are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a responsive pleading may be deemed required by the Court, Defendant responds that the entry of the default judgment in this matter is invalid; therefore, the inquiry into whether there is a meritorious defense to open the judgment is moot. 25. The averments in this paragraph are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure; therefore they are deemed denied. To the extent that a responsive pleading may be deemed required by the Court, Defendant responds that the entry of the default judgment in this matter is invalid; therefore, the inquiry into whether there is a meritorious defense to open the judgment is moot. 26. The averments in this paragraph are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure; therefore they are deemed denied. To the extent that a responsive pleading may be deemed required by the Court, Defendant responds that the entry of the default judgment in this matter is invalid; therefore, the inquiry into whether there is a meritorious defense to open the judgment is moot. 27. The averments in this paragraph are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure; therefore they are deemed denied. To the extent that a responsive pleading may be deemed required by the Court, Defendant responds that the entry of the default judgment in this matter is invalid; therefore, the inquiry into whether there is a meritorious defense to open the judgment is moot. 28. The averments in this paragraph are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure; therefore they are deemed denied. To the extent that a responsive pleading may be deemed required by the Court, Defendant responds that the entry of the default judgment in this matter is invalid; therefore, the inquiry into whether there is a meritorious defense to open the judgment is moot. 29. The averments in this paragraph are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure; therefore they are deemed denied. To the extent that a responsive pleading may be deemed required by the Court, Defendant responds that the entry of the default judgment in this matter is invalid; therefore, the inquiry into whether there is a meritorious defense to open the judgment is moot. WHEREFORE, Alan Unger requests that this Honorable Court to open/strike the default judgment in this matter and that a stay of proceedings in this matter be granted, together with reasonable counsel fees and costs. NEW MATTER III- LACK OF FATAL DEFECT 30. This paragraph is a paragraph of incorporation to which requires no response. 31. Paragraph 31 is a statement of law to which no response is required. 32. Denied. The record does contain a fatal defect with respect to the default judgment entered. Pursuant to the Rules of Civil Procedure, Plaintiff could not have properly obtained a default judgment until July 19, 2005. The record reflects that Plaintiff improperly filed a praecipe for the default judgment on July 18, 2005 and the Prothonotary improperly entered the judgment. 33. Denied. The averments in this paragraph are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure; therefore, they are deemed denied. 34. Denied. The averments in this paragraph are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure; therefore, they are deemed denied. WHEREFORE, Alan Unger requests that this Honorable Court to open/strike the default judgment in this matter and that a stay of proceedings in this matter be granted, together with reasonable counsel fees and costs. Respectfully submitted, AlFa? Unger e" 610 Alexander Spring Rd. Carlisle, PA 17013 717-422-6579 MT. VALLEY FARMS & LUMBER PRODUCTS, INC., Plaintiff V. ALAN G. UNGER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION LAW : NO. 05-2582 : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Alan Unger, do hereby certify that on this 3rd day of July 2006, I caused a true and correct copy of the foregoing Response to Plaintiff s New Matter to be served upon the following persons by hand delivery: Thomas Williams, Esq. Martson Deardorff Williams & Otto 10 East High Street Carlisle, PA 17013 vl' -.,4 " , Alan Unger Date: ;214z-'? Verification I, John Mangan, hereby state that I am familiar with the facts and circumstances in the instant matter. I further verify that the facts contained within the foregoing document are true and correct to the best of my knowledge, information and belief and are made pursuant to 18 Pa.C.S. § 4904, relating to unworn falsification to authorities. f John } gan Date: ? /? ?? 4 h F:\FILES\ ATAFILE\G=eml\Curr 11298. 1,pmcipe2,rea1estat0tde Revised: 7/7/l 335PM Thomas J. Williams, Esquire Michael J. Collins, Esquire MARTSON DEARDORFF WILLIAMS & OTTO Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff MT. VALLEY FARMS & LUMBER IN THE COURT OF COMMON PLEAS OF PRODUCTS, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : NO. 05-2582 CIVIL ACTION - LAW ALAN G. UNGER, Defendant : JURY TRIAL DEMANDED PRAECIPE FOR AMENDED WRIT OF EXECUTION TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please amend writ of execution filed on or about March 15, 2006, in the above matter, (1) directed to the Sheriff of Cumberland County; (2) against Alan G. Unger, Defendant; and (3) enter this amended writ in the judgment index against Defendant; and (4) execute against all real property in Cumberland County owned by Defendant or in which Defendant holds an interest, including, but not limited to, all real property as set forth below: a. 610 Alexander Spring Road, Carlisle, Pennsylvania (tax parcel number 40-09- 0527-039); b. Tax Parcel No. 40-13-0126-010A; C. Tax Parcel No. 40-13-0126-011; and d. Tax Parcel No. 40-13-0126-045. (5) Principal Balance, $1,174,594.49 Plus interest from July 18, 2005, at 6% per day, $ Plus Costs: $ Total Balance owed to Plaintiff: $ Direct the Cumberland County Sheriffto execute upon any and all real and personal propertythat is owned by the above Defendant and deliver the attached correspondence to Jody's attention in the Cumberland County Sheriffs Office. * To be determined by the Sheriff of Cumberland County. MARTSON DEARDORFF WILLIAMS & OTTO By Michael J. Collins, Es46ire Ten East High Street Carlisle, PA 17013 (717) 243-3341 Date: July 7, 2006 Attorneys for Plaintiff CERTIFICATE OF SERVICE I, Jacqueline A. Decker„ an authorized agent for Martson Deardorff Williams & Otto, hereby certify that a copy ofthe foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Mr. Alan G. Unger 610 Alexander Spring Road Carlisle, PA 17013 MARTSON DEARDORFF WILLIAMS & OTTO B 1?Cz=XI?/t/ cqu e A. Deckr en ast High Street Carlisle, PA 17013 (717) 243-3341 Dated: July 7, 2006 I C \ --1 f. J C ' WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) N005-2582 Civil COUNTY OF CUMBERLAND) CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due Mt. Valley Farms & Lumber Products Inc Plaintiff (s) From Alan G. Unger (1) You are directed to levy upon the property of the defendant (s)and to sell 610 Alexander Spring Road, Carlisle Penna. (tax parcel number 40-09-0527-039 (b) Tax Parcel No. 40-13-0126-OIOA (c) Tax Parcel No. 40-13-0126-011 and (d) Tax Parcel No. 40-13-0126-045. (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of 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 $ 1,174,594.49 1,130.50 Interest from July 18, 2005, at 6% per day Atty's Comm % Due Prothy $1.00 Arty Paid $119.25 Other Costs Plaintiff Paid Date: March 28, 2006 (Seal) CURTIS R. LONG Prothonotary By:? Deputy REQUESTING PARTY: Name Michael J. Collins, Esq. Marston, Deardorff, Williams & Otto Address: Ten East High Street, Carlisle, Pa. 17013 Attorney for: Plaintiff Telephone: (717)243-3341 Supreme Court ID No. MT. VALLEY FARMS & LUMBER IN THE COURT OF COMMON PLEAS OF PRODUCTS, INC., CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF V. 05-2582 CIVIL ALAN G. UNGER, Defendant CIVIL DIVISION - LAW ORDER OF COURT AND NOW, this 21st day of August, 2006, upon consideration of the Defendant's Petition to Open/Strike Default Judgment and the Plaintiffs Answer thereto, IT IS HEREBY ORDERED AND DIRECTED that the parties shall file briefs in support of their position with the Court on or before August 25, 2006. Argument in the matter shall be heard on August 28, 2006 at 9:30 a.m. in Courtroom No. 5 of the Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court, NN-? ?" - M. L. Ebert, Jr., J. Michael J. Collins, Esquire Attorney for Plaintiff John Mangan, Esquire Attorney for Defendant bas V1 NVAI,1, uIvN) P, d kt'Nn,j,, ,a ny e a =s gad t z snn 9001 AbViGINCHic"cid dHL d0 Koi:L43-(Mil MT. VALLEY FARMS & LUMBER PRODUCTS, INC., Plaintiff V. ALAN G. UNGER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION LAW NO. 05-2582 JURY TRIAL DEMANDED PEITION FOR EMERGENCY AND INJUCTIVE RELIEF AND NOW, comes Defendant Alan G. Unger and files this Petition for Emergency and Injunctive Relief, and in support thereof, avers as follows: 1. The instant matter before the court was commenced by the filing of a complaint on May 18, 2005. 2. Plaintiff s counsel issued to Defendant a ten day notice of intention to file praecipe for entry of default judgment and related correspondence. The notice and correspondence are dated July 8, 2005 and presumeably mailed on same date. On July 18, 2005 Defendant filed an Answer with New Matter to Plaintiffs Complaint. 4. Also on July 18, 2005, Plaintiff filed a praecipe for entry of default judgment and Cumberland County Prothonotary's Office entered said judgment. 5. Defendant filed a Petition to Strike said default judgment, briefs filed and argument was heard July 28, 2006 before Judge Ebert. 6. On September 1, 2006 Court of Common Pleas Judge Ebert denied Defendant's Petition to Strike. On September 5, 2006, Defendant filed a Notice of Appeal to the Superior Court of Pennsylvania regarding Judge Ebert's denial of Defendant's Petition to Strike the default judgment. 8. There is a pending Sheriff's sale on Defendant's property scheduled for September 6, 2006 as a result of a judgment on Defendant's property. WHEREFORE, Plaintiff respectfully requests that this Court enter an Order staying the pending Sheriffs sale on September 6, 2006 in regard to Defendant's property pending resolution of this matter or further order of court. Respectfully submitted, J Mangan Verification I, John Mangan, hereby state that I am familiar with the facts and circumstances in the instant matter. I further verify that the facts contained within the foregoing document are true and correct to the best of my knowledge, information and belief and are made pursuant to 18 Pa.C.S. § 4904, relating to unswom falsification to authorities. J angan Date: ?/ S-/O? CERTIFICATE OF SERVICE I, John Mangan, do hereby certify that on this 5m day of August 2006, I caused a true and correct copy of the foregoing document to be served upon the following persons by hand delivery: Thomas Williams, Esq. Martson Deardorff Williams & Otto 10 East High Street Carlisle, PA 17013 J an Date: ( A 1? o -TJ ? V) ( 5?... 11 D rtry Ln J MT. VALLEY FARMS & LUMBER PRODUCTS, INC., Plaintiff V ALAN G. UNGER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-2582 CIVIL ACTION - LAW JURY TRIAL DEMANDED ORDER OF COURT AND NOW, this 1st day of September, 2006, upon consideration of Defendant's Petition to Open/Strike Default Judgment, the subsequent responsive pleadings filed thereto, the briefs of the parties, and after argument; IT IS HEREBY ORDERED AND DIRECTED that Defendant's Petition to Open/Strike Default Judgment is DENIED. By the Court, ,t%? -? ?-LA / M. L. Ebert, Jr., J. ynomas J. Williams, Esquire David R. Galloway, Esquire For the Plaintiff ]flan G. Unger, Defendant /610 Alexander Spring Road Carlisle, Pa. 17013 lan G. Unger, Defendant 236 Red Tank Road Carlisle, Pa. 17013 ,oodohn Mangan, III, Esquire For the Defendant mtf MT. VALLEY FARMS & LUMBER PRODUCTS, INC., Plaintiff V. ALAN G. UNGER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL DIVISION LAW NO. 05-2582 JURY TRIAL DEMANDED MOTION FOR RECONSIDERATION OF ORDER DATED SEPTEMBER 1.2006 AND NOW, comes Defendant Alan G. Unger and files this Motion for Reconsideration and in support thereof, avers as follows: 1. The instant matter before the court was commenced by the filing of a complaint on May 18, 2005. 2. Plaintiff s counsel issued to Defendant a ten day notice of intention to file praecipe for entry of default judgment and related correspondence. The notice and correspondence are dated July 8, 2005 and presumably mailed on same date. 3. On July 18, 2005 Defendant filed an Answer with New Matter to Plaintiff's Complaint. 4. Also on July 18, 2005, Plaintiff filed a praecipe for entry of default judgment and Cumberland County Prothonotary's Office entered said judgment. 5. Additionally, Plaintiff filed a response to Defendant's New Matter. 6. Subsequently, Defendant filed a Petition to Strike said default judgment, briefs were filed and argument was heard July 28, 2006 before Judge Ebert. 7. On September 1, 2006 Court of Common Pleas Judge Ebert denied Defendant's Petition to Strike said default judgment. 8. Defendant contends that the judgment should be stricken from the record because the default judgment was filed prematurely, in violation of Pa.R.C.P. 237. 1, i.e. the judgment is void ab initio. 9. Defendant directs this Honorable Court's attention to the case of Lauer v. Fannell 34 D&C 3d 62 (Pa.Cm.PI. 1984), which is procedurally similar to the facts sub judice. A true and correct copy of the case is attached hereto as Exhibit "A". 10. In the Lauer case, the default judgment was filed on the last day that the alleged tortfeasor had to file a requisite pleading. 11. The Lauer Court concluded that because the individuals filed for a default judgment on the last day that the alleged tortfeasor had to file his pleading, the default judgment was premature. 12. The Lauer Court went on to cite to the case of Wodjick v. Thomas, et al., 60 Luz. Leg. Reg. 183, 184 which enunciated, "[T]he default judgment thus was prematurely entered and must be stricken..." Also see Trew v. Maguire, 78 York L.R. 75. 13. The Lauer Court entered an order striking the default judgment that had been entered against the alleged tortfeasor. 14. Also instructive in regard to premature default judgments is the Superior Court case of Acre v. Naw Brand Man. Co., 571 A.2d 466 (Pa. Super. 1990). A true and correct copy of the case is attached hereto as Exhibit "B". 15. In the Navy Brand case, the ten day notice was mailed on December 14, 1987. Eight days later, on December 22, 1987, the plaintiff caused the default judgment to be entered. 16. The Navy Brand Court opined: The judgment is clearly defective and subject to being stricken on motion. Rule 237.1 required that a notice of intent to enter a default judgment must be sent at least ten days prior to the filing of the praecipe for default judgment. See Central Penn National Bank v. Williams, 362 Pa.Super. 229, 523 A.2d 1166 (1987); Fountainville Historical Farm Association of Bucks County, Inc. v. Bucks Countv, 340 Pa.Super. 412, 490 A.2d 845 (1985); 11 Std.Pa.Prac.2d Section 68.11. A petition to strike a judgment will be granted where the record affirmatively shows a failure to comply with Pa.R.C.P. 237.1 Fierst v. Commonwealth Land Title Insurance Co., 369 Pa.Super. 355, 360, 535 A.2d 196, 198-199 (1987). Acre v. Navy Brand Man. Co., 571 A.2d 466 (Pa. Super. 1990). 16. Plaintiff's non-compliance with the requirements of Pa.R.C.P 237.1 mandating that the Defendant has a full ten days to file the requisite pleading created a facial defect that denied the prothonotary the authority to enter the subsequent default judgment against the Defendant and rendered it void ab initio, so timeliness of Defendant's petition to strike the judgment is irrelevant. See Erie Ins. Co. v. Bullard 839 A.2d 383 (Pa.Super. 2003). WHEREFORE, Plaintiff respectfully requests that this Court grant Defendant's Motion for Reconsideration and strike the default judgment entered in this matter. Respectfully submitted, " z4zz? --\- Jo angan 57 West Pomfret Street Carlisle, PA. 17013 717-241-2446 MT. VALLEY FARMS & LUMBER PRODUCTS, INC., Plaintiff V ALAN G. UNGER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-2582 CIVIL ACTION - LAW JURY TRIAL DEMANDED ORDER OF COURT AND NOW, this lst day of September, 2006, upon consideration of Defendant's Petition to Open/Strike Default Judgment, the subsequent responsive pleadings filed thereto, the briefs of the parties, and after argument; IT IS HEREBY ORDERED AND DIRECTED that Defendant's Petition to Open/Strike Default Judgment is DENIED. By the Court, Thomas J. Williams, Esquire David R. Galloway, Esquire For the Plaintiff Alan G. Unger, Defendant 610 Alexander Spring Road Carlisle, Pa. 17013 t ? M. L. Ebert, Jr., J. V Alan G. Unger, Defendant 236 Red Tank Road Carlisle, Pa. 17013 John Mangan, III, Esquire For the Defendant .mtf 1984 Pa. Dist. & Cnty. Dec. LEXIS 187, *; 34 Pa. D. & C.3d 62, ** Lauer v. Fannell no. 3642-C of 1984 COMMON PLEAS COURT OF LUZERNE COUNTY, PENNSYLVANIA 1984 Pa. Dist. & Cnty. Dec. LEXIS 187; 34 Pa. D. & C.3d 62 December 13, 1984, Decided CASE SUMMARY PROCEDURAL. POSTURE: Defendant alleged tortfeasor brought an action to strike or to open a default judgment entered in favor of plaintiff individuals. OVERVIEW: The alleged tortfeasor's petition contended that he was served with a complaint in the matter. The alleged tortfeasor contended that the judgment should have been stricken of record because the default judgment was filed prematurely, in violation of Pa. R, Civ. P, 237. The alleged tortfeasor stated that the default judgment was filed on the last day that the alleged tortfeasor had to file a requisite pleading. Further, he alleged that he had a meritorious defense. The court held that Pa. R. Civ. P. 237,1fa) stated that no judgment by default could have been entered by the prothonotary unless the praecipe for entry included a certification that a written notice of intention to tale the praecipe was mailed or delivered to the party against whom judgment was to have been entered and to his attorney of record, if any, after the default occurred and at least 10 days prior to the date of the filing of the praecipe. The court concluded that because the individuals filed for default judgment on the last day that the alleged tortfeasor had to file his pleading, the default judgment was premature. OUTCOME: The court entered an order striking the default judgment that had been entered against the alleged tortfeasor. CORE TERMS: default judgment, stricken, requisite, notice, mailed, receive notice, prematurely, praecipe, contemporaneously, above-captioned, prothonotary, carrier, default, recites, premature, ten-day LexlsNexis(R) Headnotes + Hide Headnotes Civil Procedure > Judicial Off=icers > Court Reporters > General Overview Civil Procedure > Pretrial Judgments > Default > Default Judgments `I ?Y Civil Procedure > Pretrial Judgments > Default > Entry of Default Judgments Wt. See Pa. R. Civ. P. 237.1(a). Civil Procedure > Pleading & Practice > Pleadinas > Answers t Civil Procedure > Pretrial Judaments > Default > Default Judgments Civil Procedure > Pretrial Judaments > Default > Relief From Default dal. If a default judgment is prematurely entered by the plaintiff, defendant is not excused from filing an answer within the 20-day period; if the defendant merely moves to strike off the judgment, he will be permitted to answer on the merits only if he furnishes excuse for delay. More Like This Headnote COUNSEL: [*1] Thomas Marsilio, for plaintiffs. Charles R. Pedri, for defendant. JUDGES: BROMINSKI, J. OPINION BY: BROMINSKI, J. OPINION: [**62] Petition to strike and/or open judgment. BROMINSKI, J., December 13, 1984 -- This matter comes before the court upon petition of original defendant, Nicholas Fannell, to strike and/or open judgment. His petition alleges that he was served with a complaint in the above-captioned matter, on September 20, 1984. That he, a resident of New Jersey, did not receive notice of intention to take default judgment until Saturday, October 13, 1984, said notice [**63] being dated October 11, 1984. That default judgment was taken on October 22, 1984 at 9:42 a.m. That he further alleges that the judgment should be stricken of record since it was filed prematurely in violation of Pa.R.C.P. 237, which requires ten (10) days after notice is given to take a default judgment; i.e., the time to plead would be October 21, 1984, a Sunday, thereby allowing defendant until October 22, 1984, to file a requisite pleading. That the judgment should be stricken of record since defendant did not receive notice until October 13, 1984 and should be allowed to October 24, 1984 to [*2] file a responsive pleading. That the judgment should be stricken of record on its face since the prothonotary did not sign or issue any judgment in this case. That the insurance carrier did not receive notice of this suit until Friday, October 19, 1984. That the judgment should be opened since defendant has a meritorious defense because plaintiffs are comparatively negligent, the female plaintiff is solely or jointly liable, plaintiffs do not meet the requisite no- fault thresholds pursuant to the Pennsylvania No-fault Motor Vehicle Insurance Act. That an answer has been filed contemporaneously with the filing of this motion, on October 25, 1984, responding to the complaint and raising the aforementioned defenses and that a timely answer was not filed since the carrier did not know of this case nor did they receive the requisite documents until Friday, October 19, 1984. That on Monday, October 22, 1984, the insurer called plaintiffs' counsel, at which time he was informed that judgment was taken. Plaintiffs' counsel has been requested to voluntarily open and/or strike the default judgment, however, counsel refuses to do same. [**64] DISCUSSION Fundamentally, we must turn to Pa. r*31 R.C.P. 237.11 it recites: "RULE 237.1. NOTICE OF PRAECIPE FOR ENTRY OF DEFAULT JUDGMENT (a) rrNI No judgment by default shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered to the party against whom judgment is to be entered and to his attorney of record, if any, after the default occurred and at least ten days prior to the date of the filing of the praecipe." Further, we must turn to the explanatory notes thereunder: "METHOD OF NOTICE The notice of intention to enter default judgment may be mailed or delivered. Registered or certified mail is not required. The ten-day grace period for compliance runs from the date of delivery, if the notice is delivered. If the notice is mailed, the ten-day period runs from the date of mailing and not from the date of receipt." (Page 297, Desk Copy, Pennsylvania Rules of Court, West Publishing Co.) From the hearing on the above-captioned matter, it was established that the notice of default judgment was mailed on October 11, 1984. So October 11, 1984 is the controlling date. Defendant had ten days from October 11, 1984 to file a requisite [*4] pleading, to wit, October 21, 1984. October 21, 1984 fell on a Sunday, so therefore, he had until the end of the business day on October 22, 1984, to file his pleading. Plaintiffs filed default judgment at 9:42 a.m. on October 22, 1984, which was premature. Defendant filed his motion to strike and/or open [**65] judgment, and contemporaneously filed his answer to the complaint on October 25, 1984. Plaintiffs contend defendant was remiss in what he did, and recites from 11 Stand. Penn.Prac. 2d., § 68:8: " .. However, HN2 if a default judgment is prematurely entered by the plaintiff, defendant is not excused from filing an answer within the 20-day period; if the defendant merely moves to strike off the judgment, he will be permitted to answer on the merits only if he furnishes excuse for delay." In response to plaintiffs' contention, there was an excuse extended by defendant's carrier, who is directly responsible for representation of defendant, in that they did not have knowledge of the matter until October 19, 1984. In addition to that, and more importantly, despite the general language of Stand. Penna.Prac., supra, this court has passed upon the question of a premature default [*5] judgment. In the case of Wodjick v. Thomas, et al., 60 Luz. Leg. Reg. 183, 184, the court enunciated: ".... The default judgment thus was prematurely entered and must be stricken...." Also see Trew v. Maquire, 78 York L.R. 75. For the foregoing reasons, the court enters the following ORDER Now, this December 13, 1984, it is hereby ordered, adjudged and decreed that the default judgment entered on October 22, 1984 by Harold Lauer and Sandra Lauer, against Nicholas Fannell, is hereby stricken. 391 Pa. Super. 476, *; 571 A.2d 466, **; 1990 Pa. Super. LEXIS 650, *** Richard T. ACRE, Jr. and Debra L. Acre, his Wife, Appellants, v. NAVY BRAND MANUFACTURING COMPANY, Appellee No. 1653 Pittsburgh 1988 Superior Court of Pennsylvania 391 Pa. Super. 476; 571 A.2d 466; 1990 Pa. Super. LEXIS 650 July 10, 1989, Submitted March 16, 1990, Filed PRIOR HISTORY: [***l] Appeal from Order of the Court of Common Pleas, Civil Division, of Allegheny County, No. 86-5657. DISPOSITION: Order affirmed. CASE SUMMARY PROCEDURAL POSTURE: Appellants, injured party and wife, challenged an order from the Court of Common Pleas of Allegheny County (Pennsylvania), which granted appellee company's motion to strike as defective a default judgment entered against appellee in appellants' product liability action against appellee. OVERVIEW: Appellants, injured party and wife, filed an action against appellee company and several other companies, alleging that appellant injured party had contracted hepatitis because he had inhaled vapors from chemicals manufactured and/or sold by appellee and the other companies. When appellee failed to timely answer, appellants mailed notice of Intent to enter a default judgment to appellee and, eight days later, appellants caused the default to be entered. The trial court granted appellee's motion to strike the default judgment as defective because Pa. R. Civ. P. 237.1 required that the default judgment not be entered less than 10 days after notice was sent. On appeal, the court determined that new rule Pa. R. A1212. P. 311(a)(11, which removed the right to an immediate interlocutory appeal of such order, did not apply and that the court could hear the appeal. The court affirmed the lower court's order, finding that the defective default judgment was not properly cured when the clerk reentered the judgment after the 10-day notice period had expired because such action stripped appellee of its 10-day right to cure the judgment. OUTCOME: The court affirmed the order of the lower court that granted appellee company's motion to strike as defective a default judgment entered in favor of appellants, injured party and wife. The court found that because the judgment had beenimproperly entered less than 10 days after E-,?,/ A , ? 6, -. ? 13 rr notice had been sent to appellee, it could not be cured by merely reentering the judgment after 10 days had passed; new notice must have been mailed. CORE TERMS: default judgment, default, notice, praecipe, stricken, effective, irreparable harm, opening, order striking, new rule, prothonotary, practicable, analogy, mailed, general rule, cure, vacating, re-entry, interlocutory order, properly filed, issue of law, days prior, plaintiff-appellants, distinguishable, discretionary, permissive, materially, memorandums, apt, notice of intent LexisNexis(R) Headnotes * Hide Headnotes Civil Procedure > Appeals > Appellate Jurisdiction > Interlocutory Orders t»] Under the rules of appellate procedure an appeal from an interlocutory order may be taken by permission when an issue of law is presented, there are substantial grounds for disagreement upon the issue, and immediate appellate determination may materially advance termination of the matter. Pa. R. App. P. 1312(a)(3)-(5). More Like This Headnote Civil Procedure > Pretrial Judgments > Default > Default Judaments f Civil Procedure > Pretrial Judgments > Default > Entry of Default Judgments Civil Procedure > Pretrial Judgments > Default > Relief From Default It' HM Pa. R. Civ. P. 237.1 requires that a notice of intent to enter a default judgment must be sent at least 10 days prior to the filing of the praecipe for default judgment. A petition to strike a judgment will be granted where the record affirmatively shows a failure to comply with Rule 237.1. More Like This Headnote Shenardize: Restrict By Headnote Civil Procedure > Pleading & Practice > Pleadings > Time Limitations > Extensions Civil Procedure > Pretrial Judaments > D faul > Default Judgments Civil Procedure > Pretrial Judaments > Default > Entry of Default Judaments tm Pa. R. Civ. P. 237.1(a) provides that no judgment by default shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered to the party against whom judgment is to be entered and to his attorney of record, if any, after the default occurred and at least ten days prior to the date of the filing of the praecipe. If a written agreement for an extension of time specifies a time within which the required action must be taken and a default occurs thereafter, judgment by default may be entered by the prothonotary without prior notice under this rule. A copy of the notice or agreement shall be attached to the praecipe. More Like This Headnote I Sheoardize: Restrict By Headnote COUNSEL: Kevin R. Lomupo, Pittsburgh, for appellants. Thomas M. Fallert, Pittsburgh, for PPG Industries, appellee. Alan H. Perer, Pittsburgh, for Navy Brand, appellee. Ralph A. Davies, Pittsburgh, for Chemply, appellee. JUDGES: Brosky, Wieand and Kelly, JJ. Wieand, J., concurs. OPINION BY: KELLY OPINION: [*478] [**467] Appellant appeals from an order striking judgment. We exercise our discretion to permit the appeal which was taken during the phase-in period of amended Pa.R.A.P. 311(a)(1). On appeal, appellant argues a default judgment entered on the eighth day of the ten day period to respond to a notice of intent to enter default under Pa.R.C.P. 237.1 a , while defective, was cured by re-entry of judgment after the tenth day without striking the defective judgment first and beginning proceedings anew. We affirm the trial court's determination that such a judgment remains defective and must be struck. [*479] I. Allowance of Appeal Prior to March 31, 1989, an order striking a default judgment was appealable as of right. On that date the Supreme Court amended Pa.R.A.P. 311(a)(1) to [***2] remove the right to an immediate interlocutory appeal [**468] of such orders. The Supreme Court's order provided for the new rule's effectiveness as follows: The amendments ... shall become effective July 1, 1989, and shall govern all matters thereafter commenced and, insofar as just and practicable, matters then pending. (Emphasis supplied in original). Difficulty has arisen in determining the intent of the Supreme Court concerning the provision that the new rule shall apply to matters commenced prior to July 1, 1989, "insofar as just and practical." In Joseph Palermo Dev. Coro v Bowers 388 Pa Super 49, 564 A .2d 996 (1989) appellant sought review of an order opening judgment based upon an assertion that the "trial court erred in finding that Mr. Bowers produced evidence in support of a meritorious defense which raised issues of fact susceptible to jury determination." 564 A.2d at 997. The panel analogized to Pa.R.A.P. 341, and noted that postponing review of the factual issue raised would not result in any irreparable harm. The panel therefore decline to permit immediate appeal of the interlocutory [***3] order, finding that it was both just and practicable to apply the new rule in that case. In non-binding memorandums, Joseph Palermo Development Corp. v Bowers supra has been construed to provide that the new rule will be applied in all cases unless a showing of irreparable harm is made. Published dissents to those memorandums have criticized such readings of the new rule. See Gallelli v. Fireman's Ins. Co.. 389 Pa.Suoer. 375, 567 A.2d 336 (1989) Lites v. Berman, 390 Pa.Super. 10, 567 A.2d 1093 (1989) We agree with the published dissents insofar as they suggest that a showing of irreparable harm to appellant's substantive rights is not required. We do not read Joseph r*4801 Palermo Dev. Coro v Bowers supra to impose such a requirement, nor could it have reached out beyond the facts and issues presented in that case to have decided such a matter. We find Joseph Palermo Dev. Corp. v. Bowers, supra, to be materially distinguishable from the instant case. In that case, analogy to the final order doctrine was apt; [***4] here, even if apt, such an analogy is incomplete. HN=VUnder the rules of appellate procedure an appeal from an interlocutory order may be taken by permission when an issue of law is presented, there are substantial grounds for disagreement upon the issue, and immediate appellate determination may materially advance termination of the matter. Pa.R.A.P. 1312(a)(3-51. While this rule had no analogy to the exercise of our discretion under new Pa.R.A.P. 311(a)(1) in Joseph Palermo Development Corp supra, it has analogous application here. The issue presented here on appeal is whether a defective default judgment prematurely entered may be cured by re-entry of judgment after the proper notice period expired without first striking the defective judgment and recommencing the default judgment process. Had new Pa.R.A.P. 311(a)(1) been effective at the time the order striking judgment was entered, appellant could have petitioned for permissive review of this novel and potentially dispositive issue of law, and we would have been inclined to grant it. The 30 day period for seeking such review has long since past. Pa.R.A.P. 1311(b). Thus, in a limited sense [***5] the application of the rule here would result in "irreparable harm" in that the right to seek permissive review was "irretrieviably lost" while appellant pursued his then proper appeal of right, rather than the now proper petition for review. Consequently, we consider it neither just nor practicable to apply new Pa.R.A.P. 311(a)(1) in this case. We conclude that Joseph Palermo Dev. Corp supra is distinguishable, and that the appeal is properly before us for review. [*481] II. Attempt to Cure a Defective Default Judgment Richard T. Acre, Jr. and Debra L. Acre filed a complaint in which they alleged that Richard had contracted hepatitis, with resulting liver damage, because he had inhaled vapors from chemicals manufactured [**469] and/or sold by the defendants, PPG Industries, Inc., Navy Brand Manufacturing Company, and Chemply, a division of United Chemicals, Inc. When Navy Brand Manufacturing Company (Navy Brand) failed to file a timely answer, plaintiffs caused a default judgment to be entered against it. The trial court, in response to a motion to strike or open the judgment, determined that the judgment was defective and ordered that [***6] it be stricken. n1 The plaintiffs appealed. We affirm. --------------Footnotes--------------- n1 The default judgment was entered against Navy Brand alone. Thus, the other defendants are not parties to the present appeal. ------------ End Footnotes -------------- After the time for filing an answer had expired, the plaintiff-appellants mailed notice of intent to enter a default judgment to Navy Brand, as required by Pa.R.C.P. 237.1. n2 This notice was mailed on December 14, 1987. Eight days later, on December 22, 1987, the plaintiff-appellants caused the default judgment to be entered. The judgment was clearly defective and subject to being stricken on motion. "lv-"+-Rule 237.1 required that a notice of intent to enter a default judgment must be sent at least ten (10) days prior to the filing of the praecipe for default judgment. See Central Penn National Bank v. Williams, 362 Pa Super 229, 523 A.2d 1166 (1987); Fountainville Historical Farm Association of Bucks County Inc v Bucks County. 340 Pa.Suner. 412. 490 A .2d 845 (1985) Lauer v. Fannell. 34 D. & C.3d 62 r*4821 (Luzerene Cty.1984)• [***7] 11 Std.Pa.Prac.2d § 68.11. A petition to strike a judgment will be granted where the record affirmatively shows a failure to comply with Pa.R.C.P. 237.1. Fierst v. Commonwealth Land Title Insurance Co., 369 Pa.Suoer. 355. 360. 535 A .2d 196, 198-199 (1987). --------------Footnotes--------------- n2 HN VPa.R.C.P. 237.1(a) provides as follows: (a) No judgment by default shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered to the party against whom judgment is to be entered and to his attorney of record, if any, after the default occurred and at least ten days prior to the date of the filing of the praecipe. If a written agreement for an extension of time specifies a time within which the required action must be taken and a default occurs thereafter, judgment by default may be entered by the prothonotary without prior notice under this rule. A copy of the notice or agreement shall be attached to the praecipe. ------------ End Footnotes -------------- [***8] The error of the premature judgment evidently was soon thereafter discovered and brought to the attention of the prothonotary. On January 5, 1988, the prothonotary entered a notation in the docket as follows: Judgment entered in error, corrected 1/5/88, Jan. 6, 1988 on praecipe [judgment] entered against Navy Brand Mfg. Co. by default. Notice of intent dated 12/14/87. Notice mailed 1/6/88. (R-48) A notation was also made in the judgment index to indicate that the first entry of default judgment had been made in error. On January 18, 1988, counsel for Navy Brand filed a petition to open or strike the judgment. The trial court, as we have observed, ordered the judgment stricken. The issue to be decided is whether a default judgment which is defective because entered less than ten (10) days after giving notice under Rule 237.1 can be perfected, without additional notice, by a re-entry of the judgment more than ten days after the original notice. Although Rule 237.1 is silent with respect to this issue and the courts have not spoken thereon, we conclude that a new notice must be given and an additional ten days must expire before a valid judgment can be entered. To hold otherwise [***9] would be to deprive the defaulting party of the full ten day period which the rule intended to provide for curing the default. After a premature default judgment has been entered, the defaulting party is required to move to strike the judgment, and, unless the judgment is removed, he cannot defend the action on the merits. Rule 237.1, however, was intended to provide a full ten days following notice within which to cure the default. See Explanatory Note -- 1979, Pa.R.C.P. 237.1. [*483] To allow the judgment to remain in this case would be to permit appellants to enter a default judgment after the expiration of [**470] only eight (8) days following the mailing of notice under Rule 237.1. The judgment was not thereafter opened or stricken at any time so as to give Navy Brand the full period allowed by the rule to cure the default by filing a responsive pleading. Because the full time allowed for curing the default was not given, the trial court correctly ordered the judgment stricken. Order affirmed. CONCUR BY: WIEAND CONCUR: WIEAND, Judge, concurring I concur in the majority's affirmance of the trial court's order. I disagree with my colleagues of the majority only to the extent that [***10] they hold that the plaintiffs' right of appeal is discretionary with this Court. The trial court's order striking the default judgment was entered on October 24, 1988. An appeal was filed within thirty (30) days thereafter. Such an appeal was then specifically permitted by Pa.R.A.P. 311(a)(1). ni Therefore, it was not subject to being stricken or quashed. Pa.R.A.P. 311(a)(1) was not amended by the Supreme Court until March 31, 1989, and it did not become effective until July 1, 1989. n2 For reasons [*484] more specifically set forth in my Dissenting Opinion in Lites v. Berman. 390 Pa.Suoer. 10. 567 A.2d 1093 (1989). I would hold that the amended rule cannot be applied retroactively to render improper an appeal filed before the amended rule became effective, much less to an appeal filed before the amendment was adopted. n3 Because the appeal in this case was properly filed, our consideration of the merits thereof is not discretionary. As in all cases in which an appeal is properly filed, the Superior Court is mandated to review the substantive issues which have been preserved in the trial court and argued on appeal. -------------- Footnotes --------------- n1 At the time when this appeal was filed, Pa.R.A.P. 311(a)(1) provided as follows: (a) General rule. Except as otherwise prescribed by general rule, an appeal may be taken as of right from: (1) Affecting judgments. An order opening, vacating or striking off a judgment, or refusing to open, vacate or strike off a judgment. If orders opening, vacating or striking off a judgment are sought in the alternative, no appeal may be filed until the court has disposed of each claim for relief. [***11] n2 Amended Pa.R.A.P. 311(a)(1) provides as follows: (a) General Rule. Except as otherwise prescribed by general rule, an appeal may be taken as of right from: (1) Affecting Judgments. An order refusing to open, vacate or strike off a judgment. If orders opening, vacating, or striking off a judgment are sought in the alternative, no appeal may be filed until the court has disposed of each claim for relief. The Supreme Court order adopting the amended rule provided as follows: The amendments ... shall become effective July 1, 1989, and shall govern all matters thereafter commenced and, insofar as just and practicable, matters then pending. n3 A contrary decision by a panel of this Court in Joseph Palermo Development Cow v. Bowers. 388 Pa.Super. 49 564 A .2d 996 (1989), is, in my judgment, an erroneous interpretation of the order amending Pa.R.A.P. 311(a)(1). Verification I, John Mangan, hereby state that I am familiar with the facts and circumstances in the instant matter. I further verify that the facts contained within the foregoing document are true and correct to the best of my knowledge, information and belief and are made pursuant to 18 Pa.C.S. § 4904, relating to unworn falsification to authorities. John an Date: ? ((( 4?-? CERTIFICATE OF SERVICE I, John Mangan, do hereby certify that on this I lm day of September 2006, I caused a true and correct copy of the foregoing document to be served upon the following persons by hand delivery: Thomas Williams, Esq. Martson Deardorff Williams & Otto 10 East High Street Carlisle, PA 17013 Jo gan Date: rI L( ?j? -? t-; ? , _ L.J ;_ , r:'? -? i __ 4" .'r _'? 7 ` MT. VALLEY FARMS & LUMBER : IN THE COURT OF COMMON PLEAS OF PRODUCTS, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : V NO. 05-2582 CIVIL ACTION - LAW ALAN G. UNGER, JURY TRIAL DEMANDED Defendant : IN RE: SHERIFF'S SALE STAYED ORDER OF COURT AND NOW, this 5th day of September, 2006, upon consideration of the defendant's Petition for Emergency and Injunctive Relief, and after consultation with the attorneys, IT IS HEREBY ORDERED AND DIRECTED that the pending Sheriff's sale of the defendant's property scheduled for September 6, 2006, is stayed until the Sheriff's sale of December 6, 2006. IT IS FURTHER ORDERED AND DIRECTED that the defendant file the required bond on or before September 29, 2006, in the amount of the present judgment against him. Failure to file the bond will result in lifting the stay of the Sheriff's sale. By the Court, ?* -? uA M. L. Ebert, Jr., Thomas J. Williams, Esquire Michael Collins, Esquire For the Plaintiffs John Mangan, III, Esquire For the Defendant ZfU? mtf L I -h Wd S- d]S 9991 MT. VALLEY FARMS & LUMBER PRODUCTS, INC., Plaintiff V. ALAN G. UNGER, Defendant S E P 1 2006 Lu,y-, - ?,? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION LAW NO. 05-2582 JURY TRIAL DEMANDED ORDER { AND NOW, this Z S day of 5 , 2006, upon consideration of Defendant's Motion for Reconsideration it is ordered that Defendant's Petition to Strike Default Judgment is GRANTED. The Prothonotary shall strike the default judgment entered in the above-captioned matter as soon as administratively possible. BY THE COURT J. 09 .2 b? 9c *6 4' MT. VALLEY FARMS & LUMBER PRODUCTS, INC., Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL DIVISION LAW ALAN G. UNGER, NO. 05-2582 Defendant JURY TRIAL DEMANDED MOTION FOR RECONSIDERATION OF ORDER DATED SEPTEMBER 1, 2006 AND NOW, comes Defendant Alan G. Unger and files this Motion for Reconsideration and in support thereof, avers as follows: 1. The instant matter before the court was commenced by the filing of a complaint on May 18, 2005. 2. Plaintiffs counsel issued to Defendant a ten day notice of intention to file praecipe for entry of default judgment and related correspondence. The notice and correspondence are dated July 8, 2005 and presumably mailed on same date. 3. On July 18, 2005 Defendant filed an Answer with New Matter to Plaintiffs Complaint. 4. Also on July 18, 2005, Plaintiff filed a praecipe for entry of default judgment and Cumberland County Prothonotary's Office entered said judgment. 5. Additionally, Plaintiff filed a response to Defendant's New Matter. 6. Subsequently, Defendant filed a Petition to Strike said default judgment, briefs were filed and argument was heard July 28, 2006 before Judge Ebert. 7. On September 1, 2006 Court of Common Pleas Judge Ebert denied Defendant's Petition to Strike said default judgment. 8. Defendant contends that the judgment should be stricken from the record because the default judgment was filed prematurely, in violation of Pa.R.C.P. 237.1, i.e. the judgment is void ab initio. 9. Defendant directs this Honorable Court's attention to the case of Lauer v. Fannell 34 D&C 3d 62 (Pa.Cm.PI. 1984), which is procedurally similar to the facts sub judice. A true and correct copy of the case is attached hereto as Exhibit "A". 10. In the Lauer case, the default judgment was filed on the last day that the alleged tortfeasor had to file a requisite pleading. 11. The Lauer Court concluded that because the individuals filed for a default judgment on the last day that the alleged tortfeasor had to file his pleading, the default judgment was premature. 12. The Lauer Court went on to cite to the case of Wodjick v. Thomas, et al., 60 Luz. Leg. Reg. 183, 184 which enunciated, "[T]he default judgment thus was prematurely entered and must be stricken..." Also see Trew v. Maguire, 78 York L.R. 75. 13. The Lauer Court entered an order striking the default judgment that had been entered against the alleged tortfeasor. 14. Also instructive in regard to premature default judgments is the Superior Court case of Acre v. Navy Brand Man. Co., 571 A.2d 466 (Pa. Super. 1990). A true and correct copy of the case is attached hereto as Exhibit "B". 15. In the Navy Brand case, the ten day notice was mailed on December 14, 1987. Eight days later, on December 22, 1987, the plaintiff caused the default judgment to be entered. 16. The Navy Brand Court opined: The judgment is clearly defective and subject to being stricken on motion. Rule 237.1 required that a notice of intent to enter a default judgment must be sent at least ten days prior to the filing of the praecipe for default judgment. See Central Penn National Bank v. Williams, 362 Pa.Super. 229, 523 A.2d 1166 (1987); Fountainville Historical Farm Association of Bucks County Inc. v. Bucks County, 340 Pa.Super. 412, 490 A.2d 845 (1985); 11 Std.Pa.Prac.2d Section 68.11. A petition to strike a judgment will be granted where the record affirmatively shows a failure to comply with Pa.R.C.P. 237.1 Fierst v. Commonwealth Land Title Insurance Co., 369 Pa.Super. 355, 360, 535 A.2d 196,198-199 (1987). Acre v. Navy Brand Man. Co., 571 A.2d 466 (Pa. Super. 1990). 16. Plaintiff's non-compliance with the requirements of Pa.R.C.P 237.1 mandating that the Defendant has a full ten days to file the requisite pleading created a facial defect that denied the prothonotary the authority to enter the subsequent default judgment against the Defendant and rendered it void ab initio, so timeliness of Defendant's petition to strike the judgment is irrelevant. See Erie Ins. Co. v. Bullard 839 A.2d 383 (Pa.Super. 2003). WHEREFORE, Plaintiff respectfully requests that this Court grant Defendant's Motion for Reconsideration and strike the default judgment entered in this matter. submitted, Joh(i Mangan 57 West Pomfret Street Carlisle, PA. 17013 717-241-2446 MT. VALLEY FARMS & LUMBER : IN THE COURT OF COMMON PLEAS OF PRODUCTS, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V ALAN G. UNGER, Defendant NO. 05-2582 CIVIL ACTION - LAW JURY TRIAL DEMANDED ORDER OF COURT AND NOW, this 1st day of September, 2006, upon consideration of Defendant's Petition to Open/Strike Default Judgment, the subsequent responsive pleadings filed thereto, the briefs of the parties, and after argument; IT IS HEREBY ORDERED AND DIRECTED that Defendant's Petition to Open/Strike Default Judgment is DENIED. By the Court, Thomas J. Williams, Esquire David R. Galloway, Esquire For the Plaintiff Plan G. Unger, Defendant 610 Alexander Spring Road Carlisle, Pa. 17013 M. L. Ebert, Jr., J. ?.J Alan G. Unger, Defendant 236 Red Tank Road Carlisle, Pa. 17013 John Mangan, III, Esquire For the Defendant .mt f 1984 Pa. Dist. & Cnty. Dec. LEXIS 187, *; 34 Pa. D. & C.3d 62, ** Lauer v. Fannell no. 3642-C of 1984 COMMON PLEAS COURT OF LUZERNE COUNTY, PENNSYLVANIA 1984 Pa. Dist. & Cnty. Dec. LEXIS 187; 34 Pa. D. & C.3d 62 December 13, 1984, Decided CASE SUMMARY CORE TERMS: default judgment, stricken, requisite, notice, mailed, receive notice, prematurely, praecipe, contemporaneously, above-captioned, prothonotary, carrier, default, recites, premature, ten-day LexisNexis(R) Headnotes * Hide Headnotes Civil Procedure > Judicial Officers > Court Reporters > General Overview Civil Procedure > Pretrial Judaments > Default > Default Judaments 10 14 -,?ete, edet orde+?i?3g>t?3dfa:??d?mei the i` S - VWe agat4 ??fi site d° of fea nr. Civil Procedure > Pretrial Judgments > Default > Entry of Default Judgments t ffmq See Pa. R. Civ. P. 237.1(a). Civil Procedure > Pleading & Practice > Pleadings > Answers 1 Civil Procedure > Pretrial Judgments > Default > Default Judgments } Civil Procedure > Pretrial Judgments > Default > Relief From Default HAa If a default judgment is prematurely entered by the plaintiff, defendant is not excused from filing an answer within the 20-day period; if the defendant merely moves to strike off the judgment, he will be permitted to answer on the merits only if he furnishes excuse for delay. More Like This Headnote COUNSEL: [*1] Thomas Marsilio, for plaintiffs. Charles R. Pedri, for defendant. JUDGES: BROMINSKI, J. OPINION BY: BROMINSKI, J. OPINION: [**62] Petition to strike and/or open judgment. BROMINSKI, J., December 13, 1984 -- This matter comes before the court upon petition of original defendant, Nicholas Fannell, to strike and/or open judgment. His petition alleges that he was served with a complaint in the above-captioned matter, on September 20, 1984. That he, a resident of New Jersey, did not receive notice of intention to take default judgment until Saturday, October 13, 1984, said notice [**63] being dated October 11, 1984. That default judgment was taken on October 22, 1984 at 9:42 a.m. That he further alleges that the judgment should be stricken of record since it was filed prematurely in violation of Pa.R.C.P. 237, which requires ten (10) days after notice is given to take a default judgment; i.e., the time to plead would be October 21, 1984, a Sunday, thereby allowing defendant until October 22, 1984, to file a requisite pleading. That the judgment should be stricken of record since defendant did not receive notice until October 13, 1984 and should be allowed to October 24, 1984 to [*2] file a responsive pleading. That the judgment should be stricken of record on its face since the prothonotary did not sign or issue any judgment in this case. That the insurance carrier did not receive notice of this suit until Friday, October 19, 1984. That the judgment should be opened since defendant has a meritorious defense because plaintiffs are comparatively negligent, the female plaintiff is solely or jointly liable, plaintiffs do not meet the requisite no- fault thresholds pursuant to the Pennsylvania No-fault Motor Vehicle Insurance Act. That an answer has been filed contemporaneously with the filing of this motion, on October 25, 1984, responding to the complaint and raising the aforementioned defenses and that a timely answer was not filed since the carrier did not know of this case nor did they receive the requisite documents until Friday, October 19, 1984. That on Monday, October 22, 1984, the insurer called plaintiffs' counsel, at which time he was informed that judgment was taken. Plaintiffs' counsel has been requested to voluntarily open and/or strike the default judgment, however, counsel refuses to do same. [**64] DISCUSSION Fundamentally, we must turn to Pa. r*31 R.C.P. 237.11 it recites: "RULE 237.1. NOTICE OF PRAECIPE FOR ENTRY OF DEFAULT JUDGMENT (a) HNITNo judgment by default shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered to the party against whom judgment is to be entered and to his attorney of record, if any, after the default occurred and at least ten days prior to the date of the filing of the praecipe." Further, we must turn to the explanatory notes thereunder: "METHOD OF NOTICE The notice of intention to enter default judgment may be mailed or delivered. Registered or certified mail is not required. The ten-day grace period for compliance runs from the date of delivery, if the notice is delivered. If the notice is mailed, the ten-day period runs from the date of mailing and not from the date of receipt." (Page 297, Desk Copy, Pennsylvania Rules of Court, West Publishing Co.) From the hearing on the above-captioned matter, it was established that the notice of default judgment was mailed on October 11, 1984. So October 11, 1984 is the controlling date. Defendant had ten days from October 11, 1984 to file a requisite [*4] pleading, to wit, October 21, 1984. October 21, 1984 fell on a Sunday, so therefore, he had until the end of the business day on October 22, 1984, to file his pleading. Plaintiffs filed default judgment at 9:42 a.m. on October 22, 1984, which was premature. Defendant filed his motion to strike and/or open [**65] judgment, and contemporaneously filed his answer to the complaint on October 25, 1984. Plaintiffs contend defendant was remiss in what he did, and recites from 11 Stand. Penn.Prac. 2d., § 68:8: ".... However, H,vr+-if a default judgment is prematurely entered by the plaintiff, defendant is not excused from filing an answer within the 20-day period; if the defendant merely moves to strike off the judgment, he will be permitted to answer on the merits only if he furnishes excuse for delay." In response to plaintiffs' contention, there was an excuse extended by defendant's carrier, who is directly responsible for representation of defendant, in that they did not have knowledge of the matter until October 19, 1984. In addition to that, and more importantly, despite the general language of Stand. Penna.Prac., supra, this court has passed upon the question of a premature default [*5] judgment. In the case of Wodjick v. Thomas, et al., 60 Luz. Leg. Reg. 183, 184, the court enunciated: ".... The default judgment thus was prematurely entered and must be stricken...." Also see Trew v. Maquire, 78 York L.R. 75. For the foregoing reasons, the court enters the following ORDER Now, this December 13, 1984, it is hereby ordered, adjudged and decreed that the default judgment entered on October 22, 1984 by Harold Lauer and Sandra Lauer, against Nicholas Fannell, is hereby stricken. 391 Pa. Super. 476, *; 571 A. 2d 466, **; 1990 Pa. Super. LEXIS 650, *** Richard T. ACRE, Jr. and Debra L. Acre, his Wife, Appellants, v. NAVY BRAND MANUFACTURING COMPANY, Appellee No. 1653 Pittsburgh 1988 Superior Court of Pennsylvania 391 Pa. Super. 476; 571 A.2d 466; 1990 Pa. Super. LEXIS 650 July 10, 1989, Submitted March 16, 1990, Filed PRIOR HISTORY: [***1] Appeal from Order of the Court of Common Pleas, Civil Division, of Allegheny County, No. 86-5657. DISPOSITION: Order affirmed. CASE SUMMARY thvtrt derraed?tlfiat?t?xtze,atAr. 1<<. `Terri et# ttie rrg t to i mm ediate ire erCociIQr'y apipeaI of~' ?,; `,?d trot; apply and that the court could, hear;the appeal. The the #awer court's order, finding,that the defective.defAuit in{e?at properly cured when.the.e#erk reentered the ,judment #a nonce period had expited.because such action stri,?iped i? 1`Cf?day; V to cure'-the judgment. notices liad be n sent to ,appellee, it could not: be cured by 'merely reenter ng the-fb;A ent after i days-.h?id 'pas edl -new`notice lT us =tieve:l een ma?fitecl CORE TERMS: default judgment, default, notice, praecipe, stricken, effective, irreparable harm, opening, order striking, new rule, prothonotary, practicable, analogy, mailed, general rule, cure, vacating, re-entry, interlocutory order, properly filed, issue of law, days prior, plaintiff-appellants, distinguishable, discretionary, permissive, materially, memorandums, apt, notice of intent LexisNexis(R) Headnotes * Hide Headnotes Civil Procedure > Appeals > Appellate Jurisdiction > Interlocutory Orders W HULA. Under the rules of appellate procedure an appeal from an interlocutory order may be taken by permission when an issue of law is presented, there are substantial grounds for disagreement upon the issue, and immediate appellate determination may materially advance termination of the matter. Pa. R. App. P. 1312(a)(3)-(5). More Like This Head note Civil Procedure > Pretrial Judgments > Default > Default Judgments Civil Procedure > Pretrial Judgments > Default > Entry of Default Judgments Civil Procedure > Pretrial Judgments > Default > Relief From Default 10 =J* Pa. R. Civ. P. 237.1 requires that a notice of intent to enter a default judgment must be sent at least 10 days prior to the filing of the praecipe for default judgment. A petition to strike a judgment will be granted where the record affirmatively shows a failure to comply with Rule 237.1. More Like This Headnote Shepardize: Restrict By Headnote Civil Procedure > Pleading & Practice > Pleadings > Time Limitations > Extensions Civil Procedure > Pretrial Judgments > Default > Default Judgments Civil Procedure > Pretrial Judgments > Default > Entry of Default Judgments Pa. R. Civ. P. 237.1(a) provides that no judgment by default shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered to the party against whom judgment is to be entered and to his attorney of record, if any, after the default occurred and at least ten days prior to the date of the filing of the praecipe. If a written agreement for an extension of time specifies a time within which the required action must be taken and a default occurs thereafter, judgment by default may be entered by the prothonotary without prior notice under this rule. A copy of the notice or agreement shall be attached to the praecipe. More Like This Headnote Sheoardize: Restrict By Headnote COUNSEL: Kevin R. Lomupo, Pittsburgh, for appellants. Thomas M. Fallert, Pittsburgh, for PPG Industries, appellee. Alan H. Perer, Pittsburgh, for Navy Brand, appellee. Ralph A. Davies, Pittsburgh, for Chemply, appellee. JUDGES: Brosky, Wieand and Kelly, JJ. Wieand, J., concurs. OPINION BY: KELLY OPINION: [*478] [**467] Appellant appeals from an order striking judgment. We exercise our discretion to permit the appeal which was taken during the phase-in period of amended Pa.R.A.P. 311(a)(1). On appeal, appellant argues a default judgment entered on the eighth day of the ten day period to respond to a notice of intent to enter default under Pa.R.C.P. 237.1 while defective, was cured by re-entry of judgment after the tenth day without striking the defective judgment first and beginning proceedings anew. We affirm the trial court's determination that such a judgment remains defective and must be struck. [*479] I. Allowance of Appeal Prior to March 31, 1989, an order striking a default judgment was appealable as of right. On that date the Supreme Court amended Pa.R.A.P. 311(a)(1) to [***2] remove the right to an immediate interlocutory appeal [**468] of such orders. The Supreme Court's order provided for the new rule's effectiveness as follows: The amendments ... shall become effective July 1, 1989, and shall govern ail matters thereafter commenced and, insofar as just and practicable, matters then pending. (Emphasis supplied in original). Difficulty has arisen in determining the intent of the Supreme Court concerning the provision that the new rule shall apply to matters commenced prior to July 1, 1989, "insofar as just and practical." In Joseph Palermo Dev. Corp. v. Bowers, 388 Pa.SUDer. 49. 564 A.2d 996 (1989), appellant sought review of an order opening judgment based upon an assertion that the "trial court erred in finding that Mr. Bowers produced evidence in support of a meritorious defense which raised issues of fact susceptible to jury determination." 564 A.2d at 997. The panel analogized to Pa.R.A.P. 341, and noted that postponing review of the factual issue raised would not result in any irreparable harm. The panel therefore decline to permit immediate appeal of the interlocutory [***3] order, finding that it was both just and practicable to apply the new rule in that case. In non-binding memorandums, Joseph Palermo Development Corp. v. Bowers, supra, has been construed to provide that the new rule will be applied in all cases unless a showing of irreparable harm is made. Published dissents to those memorandums have criticized such readings of the new rule. See GalleNi v, Fireman's Ins. Co., 389 Pa.Sul2er. 375, 567 A.2d 336 (1989), Lites v. Berman, 390 Pa.Super. 10, 567 A.2d 1093 (1989). We agree with the published dissents insofar as they suggest that a showing of irreparable harm to appellant's substantive rights is not required. We do not read Joseph r*4801 Palermo Dev. Corp. v. Bowers, supra, to impose such a requirement, nor could it have reached out beyond the facts and issues presented in that case to have decided such a matter. We find Joseph Palermo Dev. Corp. v. Bowers, supra, to be materially distinguishable from the instant case. In that case, analogy to the final order doctrine was apt; [***4] here, even if apt, such an analogy is incomplete. HNITUnder the rules of appellate procedure an appeal from an interlocutory order may be taken by permission when an issue of law is presented, there are substantial grounds for disagreement upon the issue, and immediate appellate determination may materially advance termination of the matter. Pa.R.A.P. 1312L13-5). While this rule had no analogy to the exercise of our discretion under new Pa.R.A.P. 311(a)(1) in Joseph Palermo Development Corp., supra, it has analogous application here. The issue presented here on appeal is whether a defective default judgment prematurely entered may be cured by re-entry of judgment after the proper notice period expired without first striking the defective judgment and recommencing the default judgment process. Had new Pa.R.A.P. 311(a)(1) been effective at the time the order striking judgment was entered, appellant could have petitioned for permissive review of this novel and potentially dispositive issue of law, and we would have been inclined to grant it. The 30 day period for seeking such review has long since past. Pa.R.A.P. 1311(b). Thus, in a limited sense [***5] the application of the rule here would result in "irreparable harm" in that the right to seek permissive review was "irretrieviably lost" while appellant pursued his then proper appeal of right, rather than the now proper petition for review. Consequently, we consider it neither just nor practicable to apply new Pa.R.A.P. 311(a)(1) in this case. We conclude that Joseph Palermo Dev. Corp., supra, is distinguishable, and that the appeal is properly before us for review. [*481] II. Attempt to Cure a Defective Default Judgment Richard T. Acre, Jr. and Debra L. Acre filed a complaint in which they alleged that Richard had contracted hepatitis, with resulting liver damage, because he had inhaled vapors from chemicals manufactured [**469] and/or sold by the defendants, PPG Industries, Inc., Navy Brand Manufacturing Company, and Chemply, a division of United Chemicals, Inc. When Navy Brand Manufacturing Company (Navy Brand) failed to file a timely answer, plaintiffs caused a default judgment to be entered against it. The trial court, in response to a motion to strike or open the judgment, determined that the judgment was defective and ordered that [***6] it be stricken. n1 The plaintiffs appealed. We affirm. --------------Footnotes--------------- n1 The default judgment was entered against Navy Brand alone. Thus, the other defendants are not parties to the present appeal. ------------ End Footnotes -------------- After the time for filing an answer had expired, the plaintiff-appellants mailed notice of intent to enter a default judgment to Navy Brand, as required by Pa.R.C.P. 237.1. n2 This notice was mailed on December 14, 1987. Eight days later, on December 22, 1987, the plaintiff-appellants caused the default judgment to be entered. The judgment was clearly defective and subject to being stricken on motion. HN2'+-Rule 237.1 required that a notice of intent to enter a default judgment must be sent at least ten (10) days prior to the filing of the praecipe for default judgment. See Central Penn National Bank v. Williams, 362 Pa.Super. 229, 523 A. 2d 1166 (1987); Fountainville Historical Farm Association of Bucks County, Inc. v. Bucks County, 340 Pa.Super. 412, 490 A.2d 845 (19851; Lauer v. Pannell, 34 D. & C.3d 62 r*4821 (I-uzerene Cty.1984): [***7] 11 Std.Pa.Prac.2d § 68.11. A petition to strike a judgment will be granted where the record affirmatively shows a failure to comply with Pa.R.C.P. 237.1. Fierst v. Commonwealth Land Title Insurance Co., 369 Pa.Sul2er. 355, 360, 535 A.2d 196, 198-199 (1987). --------------Footnotes--------------- n2 HH3VPa.R.C.P. 237.1(a) provides as follows: (a) No judgment by default shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered to the party against whom judgment is to be entered and to his attorney of record, if any, after the default occurred and at least ten days prior to the date of the filing of the praecipe. If a written agreement for an extension of time specifies a time within which the required action must be taken and a default occurs thereafter, judgment by default may be entered by the prothonotary without prior notice under this rule. A copy of the notice or agreement shall be attached to the praecipe. ------------ End Footnotes --------------[***8] The error of the premature judgment evidently was soon thereafter discovered and brought to the attention of the prothonotary. On January 5, 1988, the prothonotary entered a notation in the docket as follows: Judgment entered in error, corrected 1/5/88, Jan. 6, 1988 on praecipe (judgment] entered against Navy Brand Mfg. Co. by default. Notice of intent dated 12/14/87. Notice mailed 1/6/88. (R-48) A notation was also made in the judgment index to indicate that the first entry of default judgment had been made in error. On January 18, 1988, counsel for Navy Brand filed a petition to open or strike the judgment. The trial court, as we have observed, ordered the judgment stricken. The issue to be decided is whether a default judgment which is defective because entered less than ten (10) days after giving notice under Rule 237.1 can be perfected, without additional notice, by a re-entry of the judgment more than ten days after the original notice. Although Rule 237.1 is silent with respect to this issue and the courts have not spoken thereon, we conclude that a new notice must be given and an additional ten days must expire before a valid judgment can be entered. To hold otherwise [***9] would be to deprive the defaulting party of the full ten day period which the rule intended to provide for curing the default. After a premature default judgment has been entered, the defaulting party is required to move to strike the judgment, and, unless the judgment is removed, he cannot defend the action on the merits. Rule 237.1, however, was intended to provide a full ten days following notice within which to cure the default. See Explanatory Note -- 1979, Pa.R.C.P. 237.1. [*483] To allow the judgment to remain in this case would be to permit appellants to enter a default judgment after the expiration of [**470] only eight (8) days following the mailing of notice under Rule 237.1. The judgment was not thereafter opened or stricken at any time so as to give Navy Brand the full period allowed by the rule to cure the default by filing a responsive pleading. Because the full time allowed for curing the default was not given, the trial court correctly ordered the judgment stricken. Order affirmed. CONCUR BY: WIEAND CONCUR: WIEAND, Judge, concurring. I concur in the majority's affirmance of the trial court's order. I disagree with my colleagues of the majority only to the extent that [***10] they hold that the plaintiffs' right of appeal is discretionary with this Court. The trial court's order striking the default judgment was entered on October 24, 1988. An appeal was filed within thirty (30) days thereafter. Such an appeal was then specifically permitted by Pa.R.A.P. 311(a)(1). n1 Therefore, it was not subject to being stricken or quashed. Pa.R.A.P. 311(a)(1) was not amended by the Supreme Court until March 31, 1989, and it did not become effective until July 1, 1989. n2 For reasons [*484] more specifically set forth in my Dissenting Opinion in Lites v. Berman, 390 Pa.Super. 10`567 A.2d 1093 (1989),, I would hold that the amended rule cannot be applied retroactively to render improper an appeal filed before the amended rule became effective, much less to an appeal filed before the amendment was adopted. n3 Because the appeal in this case was properly filed, our consideration of the merits thereof is not discretionary. As in all cases in which an appeal is properly filed, the Superior Court is mandated to review the substantive issues which have been preserved in the trial court and argued on appeal. -------------- Footnotes --------------- n1 At the time when this appeal was flied, Pa.R.A.P. 311(a)(1) provided as follows: (a) General rule. Except as otherwise prescribed by general rule, an appeal may be taken as of right from: (1) Affecting judgments. An order opening, vacating or striking off a judgment, or refusing to open, vacate or strike off a judgment. If orders opening, vacating or striking off a judgment are sought in the alternative, no appeal may be filed until the court has disposed of each claim for relief. [***11] n2 Amended Pa.R.A.P. 311(a)(1) provides as follows: (a) General Rule. Except as otherwise prescribed by general rule, an appeal may be taken as of right from: (1) Affecting Judgments. An order refusing to open, vacate or strike off a judgment. If orders opening, vacating, or striking off a judgment are sought in the alternative, no appeal may be flied until the court has disposed of each claim for relief. The Supreme Court order adopting the amended rule provided as follows: The amendments ... shall become effective July 1, 1989, and shall govern all matters thereafter commenced and, insofar as just and practicable, matters then pending. n3 A contrary decision by a panel of this Court in Joseph Palermo Development Corp. v. Bowers, 388 Pa.Suger. 49, 564 A.2d 996 (1989). is, in my judgment, an erroneous interpretation of the order amending Pa.R.A.P. 311(a)(1). CERTIFICATE OF SERVICE I, John Mangan, do hereby certify that on this 11`x' day of September 2006, I caused a true and correct copy of the foregoing document to be served upon the following persons by hand delivery: Thomas Williams, Esq. Martson Deardorff Williams & Otto 10 East High Street Carlisle, PA 17013 John M gan E' Date: ???? , 1 Verification I, John Mangan, hereby state that I am familiar with the facts and circumstances in the instant matter. I further verify that the facts contained within the foregoing document are true and correct to the best of my knowledge, information and belief and are made pursuant to 18 Pa.C.S. § 4904, relating to unworn falsification to authorities. John gan Date: Ct ((( Mt. Valley Farms & Lumber Products, Inc. VS Alan G. Unger In The Court of Common Pleas of Cumberland County, Pennsylvania Writ No. 2005-2582 Civil Term R. Thomas Kline, Sheriff, who being duly sworn according to law, states this writ is returned STAYED per letter of request from Attorney Thomas Williams. Sheriff's Costs: Docketing $30.00 Poundage 79.54 Advertising 60.00 Posting Handbills 60.00 Law Library .50 Prothonotary 1.00 Mileage 44.00 Levy 60.00 Surcharge 60.00 Law Journal 2,315.00 Patriot News 1,307.60 Postpone Sale 20.00 Share of Bills 19.31 $4,056.95 So w R. Thomas Kline, Sheriff BY d Real Estate rgeant `), Ia aItC I so 5L& 4'I AMENDED WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) N005-2582 Civil COUNTY OF CUMBERLAND) CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due Mt. Valley Farms & Lumber Products Inc Plaintiff (s) From Alan G. Unger (1) You are directed to levy upon the property of the defendant (s)and to sell 610 Alexander Spring Road, Carlisle Penna. (tax parcel number 40-09-0527-039 (b) Tax Parcel No. 40-13-0126-010A (c) Tax Parcel No. 40-13-0126-011 and (d) Tax Parcel No. 40-13-0126-045. (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of 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 $ 1,174,594.49 L.L.$0.50 Interest from July 18, 2005, at 6% per day Atty's Comm % Due Prothy $1.00 Atty Paid $ 119.25 Other Costs Plaintiff Paid Date: March 28, 2006 CURTIS R. LONG Prothonotary (Seal) By: dw t Q ?. Deputy REQUESTING PARTY: Name Michael J. Collins, Esq. Marston, Deardorff, Williams & Otto Address: Ten East High Street, Carlisle, Pa. 17013 Attorney for: Plaintiff Telephone: (717)243-3341 Supreme Court ID No. Real Estate Sale # 65 x On July 13, 2006 the Sheriff levied upon the defendant's interest in the real property situated in South Middleton Township, Cumberland County, PA Known and numbered as 610 Alexander Spring Road, and three tracts of land known as tax parcel id 40-13-0126-010A Red Tank Road, tax parcel id 40-13-0126-011 Red Tank Road and tax parcel id 40-13-0126-045 Red Tank Road,Carlisle, more fully described on Exhibit "A" filed with this writ and by this reference incorporated herein. Date: July 13, 2006 By: j Real E to Sergeant s F:\FQ.ES\QATAFU,E\General\Current\ 11298.1. affidavithde Revised: 3/28/06 9:03AM Thomas J. Williams, Esquire Michael J. Collins, Esquire MARTSON DEARDORFF WILLIAMS & OTTO Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff MT. VALLEY FARMS & LUMBER IN THE COURT OF COMMON PLEAS OF PRODUCTS, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : NO. 05-2582 CIVIL ACTION - LAW ALAN G. UNGER, Defendant : JURY TRIAL DEMANDED AFFIDAVIT PURSUANT TO RULE 3129.1 - AND NOW, comes Mt. Valley Farms & Lumber Products, Inc., by and through its attorneys at MARTSON DEARDORFF WILLIAMS & OTTO, sets forth as of the date of the praecipe for the writ of execution was filed the following information concerning the real property located at: a. 610 Alexander Spring Road, Carlisle, Pennsylvania (tax parcel number 40-09-0527-039); b. 236 Red Tank Road, Boiling Springs, Pennsylvania (tax parcel numbers 40-13-0126-010A); C. 236 Red Tank Road, Boiling Springs, Pennsylvania (tax parcel numbers 40-13-0126-011); d. 240 Red Tank Road, Boiling Springs, Pennsylvania (tax parcel number 40-13-0126-045); This affidavit is filed pursuant to Pennsylvania Rule of Civil Procedure 3129. 1, and follows the Praecipe for Writ of Execution filed by Plaintiffon March 17, 2005 in the above captioned matter. Plaintiff avers as follows: 1. Name and address of owner(s) or reputed owner(s): Alan G. Unger 610 Alexander Spring Road, Carlisle, Pennsylvania a ' 2. Name and address of defendant(s) in the judgment: Alan G. Unger 610 Alexander Spring Road, Carlisle, Pennsylvania 3. Name and address of every lien and mortgage holder on 610 Alexander Spring Road, Carlisle, Pennsylvania, (tax parcel number 40-09-0527-039), in order of priority: a. Harris Savings Bank, Mortgage Book 1606, page 436 dated April 14, 2000 in the amount of $140,000.00. Harris Savings Bank Attn: Business Banking Dept. P.O. Box 1711 Harrisburg, PA 17105 b. Harris Savings Bank, Mortgage Book 1606, page 444 dated April 14, 2000 in the amount of $35,000.00 Harris Savings Bank Attn: Business Banking Dept. P.O. Box 1711 Harrisburg, PA 17105 C. Yale Electric Supply Co., Inc., Docket # 2004-255 dated January 16, 2004. Yale Electric Supply Co., Inc. 2207 Paxton Street Harrisburg, PA 17111 d. GE Supply, Docket # 2004-1740 dated April 16, 2004 in the amount of $6,856.88. GE Supply, a Division of General Electric Co. By its attorney, Matthew D. Baxter, Esq. Bespalov & Gross, P.C. 2655 Philmont Ave., Suite 206 Huntingdon Valley, PA 19006 4. Name and address of every lien and mortgage holder on 236 Red Tank Road, Boiling Springs, Pennsylvania, (tax parcel numbers 40-13-0126-010A), in order of priority: a. Yale Electric Supply CO., Inc., Docket # 2004-255 dated January 16, 2004. Yale Electric Supply Co., Inc. 2207 Paxton Street Harrisburg, PA 17111 b. PA Department of Revenue, Bureau of Compliance, Docket# 2004-822 dated February 23, 2004 in the amount of $3,703.74. PA Department of Revenue Bureau of Compliance Dept. 280948 Harrisburg, PA 17128-0948 C. Department of Treasury Internal Revenue Service, Docket #2004-1264 dated March 09, 2004, in the amount of $20,625.85. Department of Treasury Internal Revenue Service 5. Name and address of every lien and mortgage holder on 236 Red Tank Road, Boiling Springs, Pennsylvania, (tax parcel numbers 40-13-0126-011), in order of priority: a. Yale Electric Supply Co., Inc., Docket # 2004-255 dated January 16, 2004. Yale Electric Supply Co., Inc. 2207 Paxton Street Harrisburg, PA 17111 b. PA Department of Revenue, Bureau of Compliance, Docket# 2004-822 dated February 23, 2004, in the amount of $3,703.74. PA Department of Revenue Bureau of Compliance Dept. 280948 Harrisburg, PA 17128-0948 C. Department of Treasury, Internal Revenue Service, Docket #2004-1264 dated March 09, 2004, in the amount of $20,625.85. Department of Treasury Internal Revenue Service 6. Name and address of every lien and mortgage holder on 240 Red Tank Road, Boiling Springs, Pennsylvania, (tax parcel number 40-13-0126-045), in order of priority: a. Waypoint Bank, Mortgage Book 1832, page 1463 dated April 09, 2003 in the amount of $200,000.00. Waypoint Bank 449 Eisenhower Blvd. Harrisburg, PA 17105 b. Yale Electric Supply Co., Inc., Docket # 2004-255 dated January 16, 2004. Yale Electric Supply Co., Inc. 2207 Paxton Street Harrisburg, PA 17111 C. PA Department of Revenue, Bureau of Compliance, Docket# 2004-822 dated February, 23, 2004, in the amount of $3,703.74. PA Department of Revenue Bureau of Compliance Dept. 280948 Harrisburg, PA 17128-0948 d. Department of Treasury. Internal Revenue Service, Docket #2004-1264 dated March 09, 2004, in the amount of $20,625.85. Department of Treasury Internal Revenue Service 7. Plaintiff has no knowledge of the existence of any other person who has any interest in the properties mentioned in this affidavit. MARTSON DEARDORFF WILLIAMS & OTTO By: Michael J. Collins, squire Sworn to and subscribed before me this day of Y , 200 ?. No Public COMMONWEAL IH UI- PENNSYLVANIA Notarial Seal Mary M. Price, Notary Public Carlisle 9oro, Cumberland County My Commission Expires Aug. 18, 2007 Member, Penn,;yivgr:,a Agq ationof Notwiss CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent for Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Affidavit was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: John M. Hyams Cunningham & Chernicoff, PC 2320 N. Second St. Harrisburg, PA 17110 Mr. Alan G. Unger 610 Alexander Spring Road Carlisle, PA 17013 Mr. Alan G. Unger 236 Red Tank Road Boiling Springs, PA 17007 Mr. Alan G. Unger 240 Red Tank Road Boiling Springs, PA 17007 MARTSON DEARDORFF WILLIAMS & OTTO By At Mary rice Ten Ea High Street Carlisle, PA 17013 (717) 243-3341 Dated: March 28, 2006 L I .E d 0- MY 9OOl Ord 3AWNS 3H1 30 301330 WRIT OF. EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) N005-2582 Civil CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due Mt Valley Farms & Lumber Products Inc. Plaintiff (s) From Alan G. Unger (1) You are directed to levy upon the property of the defendant (s)and to sell see legal description . (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of 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 $ 1,174,594.49 Interest from July 18, 2005 at 6% per day Atty's Comm % Arty Paid $ 119.25 Plaintiff Paid Date: March 28, 2006 L.L.$ 0.50 Due Prothy $ 1.00 Other Costs r Pr honotary (Seal) By: Deputy REQUESTING PARTY: Name Michael J. Collins, Esq Marston Deardorff Williams & Otto Address: Ten East High Street Carlisle, Pa. 17013 Attorney for: Plaintiff Telephone: (717)243-3341 Supreme Court ID No. Real Estate Sale # 65 On June 02, 2006 the Sheriff levied upon the defendant's interest in the real property situated in South Middleton Township, Cumberland County, PA Known and numbered as 610 Alexander Spring Road, Carlisle, And 236 Red Tank Road, Boiling Springs And 240 Red Tank Road, Boiling Springs, more fully described on Exhibit "A" filed with this writ and by this reference incorporated herein. Date: June 02, 2006 c U By: JUJ -YVEt?? Real E Late Sergeant L I =L d h - ddV 9001 vd `,kiNnoo gfiv'id3dwn3 J3la3NS 3N130 331AJO qS tOl d bZ dtlW g00t v a 3a13?? 03 #83NS 3N1 WRIT NO. 05-2582 LEGAL DESCRIPTIONS Exhibit A Cumberland County Deed Book 219, Page 466. TO BE SOLD AS THE PROPERTY OF DEFENDANT ON JUDGMENT ENTERED AT THE ABOVE NUMBER AND TERM. BEGINNING at a point on the southern dedicated right-of-way line of Township road T-469, known as Alexander Spring Road, which point at the Place of Beginning is 25.02 feet from the original centarlint of said 33 feet wide Alexander Spring Road, and which point at the Place of Beginning is at the dividing line between said Lot No. 3-E and land now or formerly of Enola Construction Co., Inc., thence from said point at the Place of Beginning along the southern dedicates right-of-way line of said Alexander Spring Road the following two (2) courses and distances: (1) North 77 degrees 20 minutes 12 seconds East a distance of 94.36 feet to a point; and (2) North 78 degrsts 01 minute 03 seconds East a distance of 179.40 fat to a point at the dividing line between Lots Nos. 3-D and 3-E; thence along said dividing fine between said Lots Non. 3-D and 3-E, South 10 degrees 30 minutes, 32 seconds East a distance of 297.09 feet to a pant in line of lands formerly of A. C. Kuhn and Son, Inc., and now or forrmerly of Allen Distribution; thence along the northern line of said land now or formerly of Allan Distribution, South 79 degree 29 minutes 28 seconds West a distance of 273.63 feet to a point in line of said land now or formerly of Enola Construction Co., Inc.; thence along the eastern line of said land now or formerly of Enola Construction Co., Inc., North 10 degrees 30 minutes 32 seconds West a disaanm of 288.93 feet to a point at the Place of BEGINNING. f,.y 0-1 P I -r A AU that certain lot of ground situate in South Middleton Township, Cumberland County, Pennsylvania, bounded and described in accordance with Final Subdivision Plan for A. C. Kuhn and Son, Inc., prepared by Steller do Lahr dated May 6, 1988, a copy of which was recorded January 17, 1989, in the hereinafter named Recorder's Office in Plan Book 57, Page 42 as follows: Exhibit B Cumberland County Deed Book 256, Page 2900. TO BE SOLD AS THE PROPERTY OF DEFENDANT ON JUDGMENT ENTERED AT THE ABOVE NUMBER AND TERM. . TRACT NO. 1 ALL that certain tract of land situate in South Middleton Township, Cumberland County, Pennsylvania, bounded and described according to "Final Subdivision Plan for Old Town Run Mountain Lodge", as prepared by John K. Bixler, III, PLS, dated October 15, 1996, revised October 30, 1996, and recorded in Cumberland County Plan Book 74, Page 32, as follows: BEGINNING at an existing P.K. nail in Red Tank Road, T-542, at the common property comer of land of Dale F. Shughart and Lot No. 5; thence along lands of Dale F. Shughart, South 12 degrees 10 minutes 42 seconds West 603.76 feet to an existing iron pin; thence continuing along lands of Dale F. Shughart, the following 8 courses and distances: 1) South 40 degrees 41 minutes 13 seconds West 303.02 feet to an existing iron pin; 2) South 17 degrees 33 minutes 00 seconds West 184.49 feet to a 10 inch oak tree; 3) North 79 degrees 06 minutes 08 seconds West 55.33 feet to an existing iron pin; 4) South 12 degrees 27 minutes 52 seconds West 18.41 feet to an existing iron pin; 5) South 41 degrees 37 minutes 17 seconds East 120.06 feet to an existing iron pin; 6) South 51 degrees 41 minutes 05 seconds East 106.13 feet to an existing iron pin; 7) South 40 degrees 21 minutes 21 seconds East 19.66 feet to an existing iron pin; 8) South 82 degrees 20 minutes 18 seconds East 541.25 feet to an existing iron pin located at the common property corner of lands of Dale F. Shughart, Dale F. Shughart, Jr. and Lot No. 5; thence along land of Dale F. Shughart, Jr., South 07 degrees 44 minutes 26 seconds West 123.60 feet to an existing iron pin; thence along land of Dale F. Shughart and through points located in the thread of Old Town Run, the following 19 courses; 1) South 06 degrees 19 minutes 00 seconds West 17.13 feet; 2) South 10 degrees 38 minutes 06 seconds East 29.88 feet; 3) South 08 degrees 57 minutes 01 second East 28.00 feet; 4) South 10 degrees 28 minutes 36 seconds West 91.64 feet; 5) South 17 degrees 15 minutes 00 seconds West 23.18 feet; 6) South 45 degrees 31 minutes 14 seconds West 25.42 feet; 7) South 45 degrees 29 minutes 04 seconds West 20.57 feet; 8) South 11 degrees 05 minutes 22 seconds West 28.09 feet; 9) South 03 degrees 39 minutes 29 seconds West 28.65 feet; 10) South 16 degrees 39 minutes 22 seconds West 36.71 feet; 11) South 22 degrees 48 minutes 57 seconds West 22.94 feet; 12) South 34 degrees 44 minutes 33 seconds West 18.24 feet; 13) South 29 degrees 10 minutes 47 seconds West 18.93 feet; 14) South 69 )(41151 T- i i I . . -id t . I , I . degrees 35 minutes 53 seconds West 19.19 feet; 15) South 49 degrees 28 minutes 46 seconds West 9.83 feet; 16) South 06 degrees 06 minutes 39 seconds West 15.60 feet; 17) South 29 degrees 53 minutes 15 seconds East 19.99 feet; 18) South 33 degrees 32 minutes 40 seconds East 25.54 feet; 19) South 20 degrees 12 minutes 09 seconds East 23.07 feet to a point in the thread of Old Town Run; thence continuing along land of Dale F. Shughart; South 73 degrees 08 minutes 40 seconds East 217.67 feet to a point in centerline of Mountain Road T-548; thence continuing along the centerline of Mountain Road, for the following 7 courses: 1) South 01 degrees 44 minutes 57 seconds East 191.80 feet to a point; 2) on a curve to the right having a radius of 638.34 feet, an arc length of 288.37 feet, a chord bearing of South 10 degrees 39 minutes 41 seconds West and a chord of 285.92 feet to a point; 3) on a curve to the left having a radius of 4793.23 feet, an arc length of 206.43 feet, a chord bearing of South 22 degrees 22 minutes 09 seconds West and a chord of 206.41 feet to a point; 4) on a curve to the right having a radius of 887.20 feet, an arc length of 85.37 feet, a chord bearing of South 23 degrees 53 minutes 31 seconds West and a chord of 85.34 feet to a point; 5) South 30 degrees 59 minutes 20 seconds West 105.19 feet; 6) on a curve to the left having a radius of 35.00 feet, an arc length of 17.61 feet, a chord bearing of South 16 degrees 34 minutes 38 seconds West and a chord of 17.42 feet to a point; 7) South 02 degrees 09 minutes 56 seconds West 52.62 feet to a point; thence along other lands of Old Town Run Mountain Lodge, North 54 degrees 01 minute 26 seconds West 2383.91 feet to an iron pin set; thence along lands of H & K Guy Family Limited Partnership, North 69 degrees 08 minutes 05 seconds East 762.00 feet to an existing stone pile; thence along lands of Harold E. Otto, North 00 degrees 30 minutes 01 second East 581.43 feet to an iron pin set; thence along lands of Richard A. Myers, North 49 degrees 22 minutes 47 seconds East 521.40 feet to an existing stone pile; thence North 09 degrees 42 minutes 35 seconds West 242.16 feet to a P.K. nail set in Red Tank Road, T-542; thence in and through the macadam cartway of Red Tank Road, T-542, North 81 degrees 22 minutes 59 seconds East 258.02 feet to a P.K. nail set; thence continuing in and through the same, South 70 degrees 21 minutes 42 seconds East 277.40 feet to a P.K. nail set; thence continuing in and through the same on a curve to the left having a radius of 178.20 feet and an arc length of 158.89 feet, a chord bearing of North 87 degrees 17 minutes 17 seconds East and a chord of 153.68 feet to the point of BEGINNING. CONTAINING 63.042 acres and designated as Lot No. 5 on Plan. Subject to all applicable notes and conditions of municipal government approval relative to the Final Minor Subdivision Plan for Old Town Run Mountain Lodge, Lot No. 5. BEING the same tract of land which Alan G. Unger, a/k/a Alan Grant Unger granted and conveyed unto Shelby Jane Bacz, Grantor herein, by deed dated February le' , 2002 and recorded in the Office of the Recorder of Deeds for Cumberland County in Deed Book xro , Page ZgLB . TRACT NO. 2 ALL that certain but of land situate in South Middleton Township, Cumberland County Pennsylvania, bounded and described according to "Acquisition Parcel", as prepared by John K. Bixler, III, P.L.S., dated April 7, 1999 and attached to prior deed, as follows: BEGINNING at a parker kalon nail located within the macadam cartway of Red Tank Road, T-542, at a common property corner of the land described herein as the Acquisition Parcel and land of Alan G. Unger, Lot No. 5, which is further depicted on a survey document titled Land Acquisition Exhibit for Alan G. Unger; thence along lands now or formerly of Alan G. Unger, South 09 degrees 42 minutes 35 seconds East, a distance of 242.16 feet to a stone pile, thence continuing along land of Alan G. Unger Lot No. 5, South 49 degrees 22 minutes 47 seconds West, a distance of 189.95 feet to a point on the property line of Alan G. Unger, Lot No. 5 at the common property corner of land described herein as Acquisition Parcel and other land of Alan G. Unger, thence along said land of Alan G. Unger, South 74 degrees 28 minutes 31 seconds West, a distance of 3.62 feet to an iron pin located on the property line of Alan G. Unger at the common property corner of land described herein as the Acquisition Parcel and land of Richard A. Myers thence along land of Richard A. Myers, North 48 degrees 33 minutes 11 seconds East, a distance of 82.00 feet to a point; continuing along the same, North 3 degrees 17 minutes 38 seconds West, a distance of 303.10 feet to a point located in the macadam cartway of Red Tank Road, T-542; thence in and through said macadam cartway, North 84 degrees 11 minutes 24 seconds East a distance of 63.02 feet to a point, the place of BEGINNING. CONTAINING 0.4954 acres. BEING the same premises which Alan G. Unger, a/k/a Alan Grant Unger, granted and conveyed to Shelby Jane Baez, Grantor herein by deed dated February L9 " 2002 and recorded in the Office of the Recorder of Deeds for Cumberland County in Deed Book tsa , Page ZgGS . TRACT NO.3 ALL that certain tract of land situate in South Middleton Township, Cumberland County, Pennsylvan* more particularly bounded and described as follows to wit: BEGINNING at a point at line of land now or formerly of Anna Cecile Simmons; thence by the same and land now or formerly of Lulu C. Bittinger, North 80 degrees East 975 feet to a point; thence by land now or formerly of Daniel V. Ahl, et al, South 53 degrees West 439 feet to a point; thence by the same, South 4 degrees West 594 feet to a point; thence North 74 degrees 30 minutes West 633.6 feet to a point; thence North 10 degrees West 592 feet to the Place of BEGINNING CONTAINING 11.6 acres. BEING the same premises which Alan G. Unger, aWa Alan Grant Unger, granted and conveyed to Shelby Jane Baez, Grantor herein by deed dated February ,.o -' , 2002 and recorded n the Office of the Recorder of Deeds for Cumberland County in Deed Book Page ail . TRACT NO.4 ALL that certain tract of mountain, land, situate in South Middleton Township, Cumberland County, Pennsylvania, bounded and described pursuant to a survey by Rodney Lee Decker, Registered Surveyor, dated May 23, 1979, as follows: BEGINNING at a stone pile, a comer of land now or formerly of Old Town Run Mountain Lodge and land now or formerly of No V. Otto, Jr. and S. Katherine Guy; thence by land now or formerly of No V. Otto, Jr and S. Katherine Guy, North 26 degrees 13 minutes 20 seconds West 648.4 feet to a point; thence by the same, South 87 degrees 56 minutes 40 seconds East 603.26 feet to a point; thence by land now or formerly of Rhea H. Otto, South 82 degrees 18 minutes 8 seconds East 774.87 feet to a point; thence by land now or formerly of Old Town Run Mountain Lodge, South 67 degrees 10 minutes 45 seconds West 1176.34 feet to the Place of BEGINNING. CONTAINING 7 acres, more or less. BEING the same premises which Alan G. Unger, a/k/a Alan Grant Unger, granted and conveyed to Shelby Jane Bacz, Grantor herein, by deed dated February wr , 2002 and recorded in the Office of the Recorder of Deeds for Cumberland County in Deed Book Page 14 61 . VERIFICATION I verify that the statements made in this Affidavit are true and correct to the best of my personal knowledge or information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4804 relating to unsworn falsification to authorities. "e?? Henry L. ylor, Presiden Date: CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent for Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: John M. Hyams Cunningham & Chernicoff, PC 2320 N. Second St. Harrisburg, PA 17110 Mr. Alan G. Unger 610 Alexander Spring Road Carlisle, PA 17013 Mr. Alan G. Unger 236 Red Tank Road Boiling Springs, PA 17007 Mr. Alan G. Unger 240 Red Tank Road Boiling Springs, PA 17007 MARTSON DEARDORFF WILLIAMS & OTTO By A M Price Ten E High Street Carlisle, PA 17013 (717) 243-3341 Dated: March 28, 2006 81 .E d h - 8dV 9GOt bd JAW NS 3Nl 40 331J30 -0J • THE PATRIOT NEWS THE SUNDAY PATRIOT NEWS Proof of Publication Under Act No. 587, Approved May 16, 1929 Commonwealth of Pennsylvania, County of Dauphin) ss Joseph A. Dennison, being duly sworn according to law, deposes and says: That he is the Assistant Controller of The Patriot News Co., a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, with its principal office and place of business at 812 to 818 Market Street, in the City of Harrisburg, County of Dauphin, State of Pennsylvania, owner and publisher of The Patriot- News and The Sunday Patriot-News newspapers of general circulation, printed and published at 812 to 818 Market Street, in the City, County and State aforesaid; that The Patriot-News and The Sunday Patriot-News were established March 4th, 1854, and September 18th, 1949, respectively, and all have been continuously published ever since; That the printed notice or publication which is securely attached hereto is exactly as printed and published in their regular daily and/or Sunday/ Metro editions which appeared in the 19th and 26th day(s) of July and the 2nd day(s) of August 2006. That neither he nor said Company is interested in the subject matter of said printed notice or advertising, and that all of the allegations of this statement as to the time, place and character of publication are true; and That he has personal knowledge of the facts aforesaid and is duly authorized and empowered to verify this statement on behalf of The Patriot-News Co. aforesaid by virtue and pursuant to a resolution unanimously passed and adopted severally by the stockholders and board of directors of the said Company and subsequently duly recorded in the office for the Recording of Deeds in and for said County of Dauphin in Miscellaneous Book "M", Volume 14, Page 317. PUBLICATION COPY SALE#65 ............................... Sworn to and subscribed 1 Notarial Seal Terry L. w?IIII, Notary Public ty Of HarRArg, Dauphin Cour of NOTARY PUBLIC CUMBERLAND COUNTY SHERIFF'S OFFICE CUMBERLAND COUNTY COURTHOUSE CARLISLE, PA. 17013 ISO 1w1e. rmtttitiw wmw hm. ?UlRrti. lJragtar ?? ik P»ctliNgs EXMfT A -'Cumbabod County Deed Bod 219, Pone 466. AU. TW'CMMM la ground situo it somh TOWN* mWdoem Cumberland CM* •loM*d; described in wills F W- Plan for A.C. lid and Sons, lnc, Prepared Stator & Lahr dffied May 6,1988, a copy of w". re0eedod Jw" 17,19189„ in the ha garb Racartet's QJ;¢c in ii; Boot 51, 42 as fdioar0: BEt1G ,a a poet an the dedi0ard f *L-dL (q lea Of Uwe*, mad T. 469, kn0aaa ar ,g,g l? at lie pfnaa of is 26.02 beat from the atio of acid 33 fact wide -tick Abamrdar POW at ? FWD of b*Wm g is-it tic drift lea bmvm said Lot lea 3l3'atd land now of formerly of Fmla C WItIctien Co, Inc, thence flm aid point at the Eb.m of Begjmd?g along the southern dedicded let 'of aid -Alexander Spring Read tlti: t two (2) oousaca and distaeexs (i) NO'* degrees 20 Minutes 12 ad (2) Naft 78 degsbas 01 neaps 03 secomils East a &MM-Of 1*40 be to a POW at the &vidiml line n Lots, Nos. 3-D and 3-E- lbonce 1?? AviftS 'boom said Lots 32 se3-D ad 1dental 30 minutes, of W,09 feat to a POW- tilt bite of h" Ibm* a(p.C. Bakst and Sod,''4M,' and sort of howdy of Allen MWbution, South 79 dWm 29 28 seconds West a distance of M63 fat minutes oint in line of said Bend now or huxdy of Enola Constructing CD, 1D.; theta along the eastem 1me off sail 16W aeon! of fistmedy of Enola APst rm Co.? bc„ North 10 domes 30 mindest32 second= Weal a atsm of 288.93 fax toa poida thePleae ofBeginomg. BRIM, B - Qm*aWA Ommty Deed Book 25C Page 2980. ALL THAT CMTAIN tract of load situate in, 1404 Middleton Tow?p, almd,Cam, Peoasylvania, bounded and *APP nun Ipege, a prgwWby ktM1knA dated Oclaiet 15, 1996, idaf' 3q, 1996e and recorded in County Plan Book 74, Page 32, as at set axinlgg P.K. nail in Red l2, ut iha a?as ptopaty;c?fna ? # Lot No. 5; dtcace Palo F. Shebat, 50412 degrees MQOI4& West 603.76 Estee to an ; Masses ewmisuin8 along lands of a dmd%.w"t36td??tJ* was as?g iron ON; 2) Barth 17,c4gesea 33 nt*w 00 Woods lutist 191.49 feet tO2,10 inch oak tree; 3) North 79 400S Og nai Itts 08 "MA V%55.33 faetto as mtieteg iron * 4) Saq& 12 4WM,27 ? anspndr?fbt 18.41 Poet roan aeolr'pf4 5) •Sedi 4(1 daggers 37 mipka6 '17 ceteris Fast 12006 iea to and ?>"? 41Mfalt? llsat Feet tb?aexrl? Pm locased at dire comm g baba F. agwrt, Dt? e F. Shyout 1t. W Gut No. S; rinse 210tH Ind of D de F 014h K k SO10h V da0taea 44 mb*s 26 100106 Wast 1233 iigrn•0a 2r, aai*S else per; ?d0gbmdo(D0bF aadtl2mo Pdwbmw i&*4bw'vf :Pta,tie ?t 19.E 1) 18@26 86 dww 19 degrees 38 17.13 east 2) Soar 10 sotubb Bet 29-M feet 3) South dWM 57 decries 01 second EM 28.00 West 91.64 feet; 5),q'A 17 dWm 15 00 seconds West 23.18 ?°e4 15 degrees 31 Inkutes 14 seconds West 25.4242 fa?4 7) South f 45 deg 29mmutes 04 JDOBA& West 20.57 of 8) SaHh II dWm 05 , 22 2 secoo6 feat 28.09 110, Wen feet; 9) South 03 degrees 39 minutes 29 SNpO 28 dtT fit 10) Saud 15 d*ft 39 m degrees 48 MF*'Nft inutes 22 seconds West 36.71 feet; 11) South 22 wore 12 ),South 4 dVm 44 WOOII& West 22.94 feet; gnafter ? 33 sewgn west 18.24 f&M Page seconds West3 $ ) South 29 deggeea,10 Minutes 47 ,93 feet 14 Minutes 53 seconds West 19?74? 69 dWm 35 Sots?rn degrees 28 mi nnes 46 SWOQ& West 9.83 feed 16) South 06 06 39 seconds West ' 15.60 feet; seconds' Fast 19.99 filet 53 mi*Aft 15 30uth 33degree ' 32 minutes 40 setwdds'Em 2§34'fiax, 19) South 20 degmes 12 Metes 09 secandS Fast 23.07 fed lib a Pmt in `the ftW of Old Tows'-Run, ridges 00??8 moa8 W Of 19* E 73 degteas og Shtoart; South 4 ioonda&W217.67feet, t thence o a point in anter!me of mountain Read T548; Mountain Road, the e of South 01 degrees 44 dle minus East 191.80 feet to a pois>t; 2)' oo a cum to the right Uv8 a radius cif 638.34 *37 FaK a feet, an arc length of of Satoh 10 39miffift socagg .2 ciotd of Pout M" 3) ad a ctirve to the left having a Of 4M.23 Jet% 'In am length ftrtl a efitsd { Of SoMb 22 of 206.43 rrm 2062 22 m4naa 09 "comas a dof f to a 04st; 4) it set e .41 Jn*Us of 887.211 bia!ti ag ass' ae W harmg a edraad ?E'OfSoela s WO of 8537 fat; a ascends West4old s shad of ? X31 5) South 30 4m 59 minutes 20 ads West 1 lift 05.19 feet; 6) oh a of curve to the left having a 35 Oll Fat see are length of 17:61 d*d ' E of So* 16 degrees 34 fateaee2et a sed*ds 38 71 gmth m sell a ohohd of 17.42 feet to a point. .*P" is god silmched d heby land of AJIA (). deplored oP a distome of ftww of i89.5!yj lee of Alm C, ?9u?0a % pro0caq coma Son* 74 degrees 28 disdece of 3.62 feet deem 33 miad A 1 f no" 82.00 feet to a pow ooi} Not* 3 *qjeop 11 ?MiMa 2 dismuns of 30+l7b M oraeada s came of I thowe in gad Norm 84 l l miaeRta distance of M test WM i & Q4091 same p!01* M ft Abiir d 31 aeafrtds RtK :a and T3e? 52A2 feet to-2 mPm 09 itmuaes 56 sewnds west Grant point; oil Town "OtnnIfi oil . *8 aria lands of Barn. Deods 1xIM26 .911daW 1kOda P'i at daft Winked baod0 oF11 & K Qgy p l'a 05 wwn& FjW 7( 100 fee to an 69degaees ting store P tieooe slang lands of amuld E. Otto, North Memos 30 mere 01 Mad past 581.43 feet to ap-iitn P® mt,' thence 'Ring ben of R>nOedA North 49 tleg 22 m 47 Era IM.40 feet to'an a iWq striae Pft, Ndltt 09 degrees 42 mmules 35 sam,6 lvas< 244.'16 feet to fi P.K. duel act in Red Tmk Road, T- 542,iianoe in and *.gb macadam cart-Y Of #Ad Tlirk Read, T-547, 4 1 dgpma;22 manes 59 moonds Hot 259.02feet to a P,K. M8 set Blaace in ad tbtorgb the tame, SOW 76 dcgiaa 21 mina6es 42 seem& salt. 277.401tet d a P$ gait set thence contiffoing in gc 2?. TRACT NO.3 'U"IW"tofbaYaittraan'ht Son16; rr 2u?d tlr of bat now or t -m aft; Naltoe>trI the B. ai 1t.'e. ' 9"IS 16et ro pmmk drence by imatrauv : dt f auroerfy of Wsiet V. Abl at at Snub 53 Hest 4*,** to a point ilsenoe bt dse *A* Bbm* 4 Beat 594 feet to a"elk%>b?itlkr4det? 1`?} a tlts?m lMotm 10 On w a ware w ac _ ? laemnea 2rirdl A11! ? atlpee ' st4isaat UUM ON cd*d 4t 1 ? Graeta and reixt* is tlc it0tea o. 5 on Plan. 3 MalI app!?to the te Final Zi114t+1 Plan for I ON 4bwa Rum Morin Alff Lae<tis, Lot No. s. Being &,,game tract of land verse G. Ungto- OM D%%- y, paird_ Shelby Jane Baez, ai1- slene0M Of lsROUrf 1iltar lalai . as and io ilk dw a' Of Cit41M in D" *& 2%, ftma PROOF OF PUBLICATION OF NOTICE IN CUMBERLAND LAW JOURNAL (Under Act No. 587, approved May 16, 1929), P. L.1784 COMMONWEALTH OF PENNSYLVANIA : COUNTY OF CUMBERLAND SS. Lisa Marie Coyne, Esquire, Editor of the Cumberland Law Journal, of the County and State aforesaid, being duly sworn, according to law, deposes and says that the Cumberland Law Journal, a legal periodical published in the Borough of Carlisle in the County and State aforesaid, was established January 2, 1952, and designated by the local courts as the official legal periodical for the publication of all legal notices, and has, since January 2, 1952, been regularly issued weekly in the said County, and that the printed notice or publication attached hereto is exactly the same as was printed in the regular editions and issues of the said Cumberland Law Journal on the following dates, viz: July 21, July 28, and August 4, 2006 Affiant further deposes that he is authorized to verify this statement by the Cumberland Law Journal, a legal periodical of general circulation, and that he is not interested in the subject matter of the aforesaid notice or advertisement, and that all allegations in the foregoing statements as to time, place and character of publication are true. (2i Marie Co e, Editor SWORN TO AND SUBSCRIBED before me this 4 day of August, 2006 NOTAMAL SEAL V LOIS E. SNYDER, Notary Public Carlisle Boro, Cumberland County My Commission Expires March 5, 2009 REAL ESTATE SALE NO. 65 Writ No. 2005-2582 Civil Mt. Valley Farms & Lumber Products, Inc. VS. Alan G. Unger Atty.: Michael J. Collins LEGAL DESCRIPTIONS EXHIBIT A Cumberland County Deed Book 219, page 466. TO BE SOLD AS the Property of Defendant on Judgment entered at the above number and term. ALL that certain lot of ground situate in South Middleton Town- ship, Cumberland County, Pennsyl- vania, bounded and described in accordance with Final Subdivision plan for p,. CStatle & Lahr dated prepared by May 6, 1988, a copy of which was recorded January 17, 1989, in the hereinafter named Recorder's Office in Plan Book 57, Page 42 as fol- lows: BEGINNING at a point on the southern dedicated right-of-way line of Township road T-469, known as Alexander Spring Road, which point at the Place of Beginning is 25.02 feet from the original centerline of said 33 feet wide Alexander Spring Road, and which point at the Place of Beginning is at the dividing line between said Lot No. 3-E and land now or formerly of Enola Construc- tion Co., Inc., thence from said point at the Place of Beginning along the southern dedicated right-of--way line of said Alexander Spring Road the following two (2) courses and distances: (1) North 77 degrees 20 minutes 12 seconds East a distance of 94.36 feet to a point; and (2) North 78 degrees 01 minute 03 seconds East a distance of 179.40 feet to a point at the dividing line between Lots Nos. 3-D and 3-E; thence along said dividing line between said Lots Nos. 3-D and 3-E, South 10 degrees 30 minutes, 32 seconds East a dis- tance of 297.09 feet to a point in line of lands formerly of A. C. Kuhn and Son, Inc., and now or formerly of Allen Distribution; thence along the northern line of said land now or formerly of Allen Distribution, South 79 degrees 29 minutes 28 seconds West a distance of 273.63 feet to a point in line of said land now or formerly of Enola Construc- tion Co., Inc.; thence along the east- ern line of said land now or formerly of Enola Construction Co., Inc., North 10 degrees 30 minutes 32 seconds West a distance of 288.93 feet to a point at the Place of BE- GINNING. EXHIBTr B Cumberland County Deed Book TRACT NO. 1 ALL that certain tract of land situ- ate in South Middleton Township, Cumberland County, Pennsylvania, bounded and described according to "Final Subdivision Plan for Old Town Run Mountain Lodge", as pre- pared by John K. Bixler, III, PLS, dated October 15, 1996, revised October 30, 1996, and recorded in Cumberland County Plan Book 74, Page 32, as follows: BEGINNING at an existing P.K. nail in Red Tank Road, T-542, at the common property corner of land of Dale F. Shughart and Lot No. 5; thence along lands of Dale F. Shughart, South 12 degrees 10 min- utes 42 seconds West 603.76 feet to an existing iron pin; thence con- tinuing along lands of Dale F. Shughart, the following 8 courses and distances: 1) South 40 degrees 41 minutes 13 seconds West 303.02 feet to an existing iron pin; 2) South 17 degrees 33 minutes 00 seconds West 184.49 feet to a 10 inch oak tree; 3) North 79 degrees 06 min- utes 08 seconds West 55.33 feet to an existing iron pin; 4) South 12 degrees 27 minutes 52 seconds West 18.41 feet to an existing iron pin; 5) South 41 degrees 37 min- utes 17 seconds East 120.06 feet to an existing iron pin; 6) South 51 degrees 41 minutes 05 seconds East 106.13 feet to an existing iron pin; 7) South 40 degrees 21 min- utes 21 seconds East 19.66 feet to an existing iron pin; 8) South 82 degrees 20 minutes 18 seconds East 541.25 feet to an existing iron pin located at the common property corner of lands of Dale F. Shughart, Dale F. Shughart, Jr. and Lot No. 5; thence along land of Dale F. Shughart, Jr., South 07 degrees 44 minutes 26 seconds West 123.60 feet to an existing iron pin: thence along land of Dale F. Shughart and through points located in the thread of Old Town Run, the following 19 courses; 1) South 06 degrees 19 minutes 00 seconds West 17.13 feet; 2) South 10 degrees 38 min- utes 06 seconds East 29.88 feet; 3) South 08 degrees 57 minutes 01 second East 28.00 feet; 4) South 10 degrees 28 minutes 36 seconds West 91.64 feet; 5) South 17 de- grees 15 minutes 00 seconds West 23.18 feet. 6) South 45 degrees 31 minutes 14 seconds West 25.42 feet; 7) South 45 degrees 29 min- utes 04 seconds West 20.57 feet; 8) South 11 degrees 05 minutes 22 seconds West 28.09 feet; 9) South 03 degrees 39 minutes 29 seconds West 28.65 feet; 10) South 16 de- grees 39 minutes 22 seconds West 36.71 feet; 11) South 22 degrees 48 minutes 57 seconds West 22.94 feet; 12) South 34 degrees 44 min- utes 33 seconds West 18.24 feet; 13) South 29 degrees 10 minutes 47 seconds West 18.93 feet; 14) South 69 degrees 35 minutes 53 seconds West 19.19 feet: 15) South 15.60 feet; 17) South 29 degrees 53 minutes 15 seconds East 19.99 feet; 18) South 33 degrees 32 min- utes 40 seconds East 25.54 feet; 19) South 20 degrees 12 minutes 09 seconds East 23.07 feet to a point in the thread of Old Town Run; thence continuing along land of Dale F. 3hughart; South 73 degrees 08 minutes 40 seconds East 217.67 feet to a point in centerline of Moun- tain Road T-548; thence continuing along the centerline of Mountain Road, for the following 7 courses: 1) South 01 degrees 44 minutes 57 seconds East 191.80 feet to a point; 2) on a curve to the right having a radius of 638.34 feet, an arc length of 288.37 feet, a chord bearing of South 10 degrees 39 minutes 41 seconds West and a chord of 285.92 feet to a point; 3) on a curve to the left having a radius of 4793.23 feet, an arc length of 206.43 feet, a chord bearing of South 22 degrees 22 minutes 09 seconds West and a chord of 206.41 feet to a point; 4) on a curve to the right having a radius of 887.20 feet, an arc length of 85.37 feet, a chord bearing of South 23 degrees 53 minutes 31 seconds West and a chord of 85.34 feet to a point; 5) South 30 degrees 59 min- utes 20 seconds West 105.19 feet; 6) on a curve to the left having a radius of 35.00 feet, an arc length of 17.61 feet, a chord bearing of South 16 degrees 34 minutes 38 seconds West and a chord of 17.42 feet to a point; 7) South 02 degrees 09 minutes 56 seconds West 52.62 feet to a point: thence along other lands of Old Town Run Mountain Lodge, North 54 degrees 01 minute 26 seconds West 2383.91 feet to an iron pin set; thence along lands of H & K Guy Family Limited Part- nership, North 69 degrees 08 min- utes 05 seconds East 762.00 feet to an existing stone pile; thence along lands of Harold E. Otto, North 00 degrees 30 minutes 01 second East 581.43 feet to an iron pin set; thence along lands of Richard A. Myers, North 49 degrees 22 min- utes 47 seconds East 521.40 feet to an existing stone pile; thence North 09 degrees 42 minutes 35 seconds West 242.16 feet to a P.K. nail set in Red Tank Road, T-542; thence in and through the macadam cartway of Red Tank Road, T-542, North 81 degrees 22 minutes 59 seconds East 258.02 feet to a P.K. nail set; thence continuing in and through the same, South 70 degrees 21 minutes 42 seconds East 277.40 feet to a P.K. nail set; thence con- tinuing in and through the same on a curve to the left having a radius of 178.20 feet and an arc length of 158.89 feet, a chord bearing of North 87 degrees 17 minutes 17 seconds East and a chord of 1.53-RA CONTAINING 63.042 acres anu designated as Lot No. 5 on Plan. Subject to all applicable notes and conditions of municipal govern- ment approval relative to the Final Minor Subdivision Plan for Old Town Run Mountain Lodge, Lot No. 5. BEING the same tract of land which Alan G. Unger, a/k/a Alan Grant Unger granted and conveyed unto Shelby Jane Bacz, Grantor herein, by deed dated February 28, 2002 and recorded in the Office of the Recorder of Deeds for Cumberland County in Deed Book 250, Page 2968. TRACT NO. 2 ALL that certain tract of land situ- ate in South Middleton Township, Cumberland County Pennsylvania, bounded and described according to "Acquisition Parcel", as prepared by John K. Bixler, III, P.L.S., dated April 7, 1999 and attached to prior deed, as follows: BEGINNING at a parker kalon nail located within the macadam cartway of Red Tank Road, T-542, at a common property comer of the land described herein as the Acqui- sition Parcel and land of Alan G. Unger, Lot No. 5, which is further depicted on a survey document titled Land Acquisition Exhibit for Alan G. Unger; thence along lands now or formerly of Alan G. Unger, South 09 degrees 42 minutes 35 seconds East, a distance of 242.16 feet to a stone pile, thence continuing along land of Alan G. Unger Lot No. 5, South 49 degrees 22 minutes 47 seconds West, a distance of 189.95 feet to a point on the property line of Alan G. Unger, Lot No. 5 at the common property corner of land described herein as Acquisition Par- cel and other land of Alan G. Unger, thence along said land of Alan G. Unger, South 74 degrees 28 min- utes 31 seconds West, a distance of 3.62 feet to an iron pin located on the property line of Alan G. Unger at the common property corner of land described herein as the Acqui- sition Parcel and land of Richard A. Myers thence along land of Richard A. Myers, North 48 degrees 33 min- utes 11 seconds East, a distance of 82.00 feet to a point; continuing along the same, North 3 degrees 17 minutes 38 seconds West, a dis- tance of 303.10 feet to a point lo- cated in the macadam cartway of Red Tank Road, T-542; thence in and through said macadam cartwdy, North 84 degrees 11 minutes 24 seconds East a distance of 63.02 feet to a point, the place of BEGIN- NING. wNTAINING 0.4954 acres. BEING the same premises which Alan G. Unger, a/k/a Alan Grant Unger, granted and conveyed to Shelby Jane Baez, Grantor herein by deed dated February 28, 2002 and recorded in the Office of the Recorder of Deeds for Cumberland County in Deed Book 250, Page 2968. TRACT NO. 3 ALL that certain tract of land situ- ate in South Middleton Township, Cumberland County, Pennsylvania, more particularly bounded and de- scribed as follows to wit: BEGINNING at a point at line of land now or formerly of Anna Cecile Simmons; thence by the same and land now or formerly of Lulu C. Bittinger, North 80 degrees East 975 feet to a point; thence by land now or formerly of Daniel V. Ahl, et al, South 53 degrees West 439 feet to a point; thence by the same, South 4 degrees West 594 feet to a point; thence North 74 degrees 30 minutes West 633.6 feet to a point; thence North 10 degrees West 592 feet to the Place of BEGINNING CONTAINING 11.6 acres. BEING the same premises which Alan G. Unger, a/k/a Alan Grant Unger, granted and conveyed to Shelby Jane Bacz, Grantor herein by deed dated February 28, 2002 and recorded in the Office of the Recorder of Deeds for Cumberland County in Deed Book 250 Page 2968. TRACT NO. 4 ALL that certain tract of moun- tain, land, situate in South Middleton Township, Cumberland County, Pennsylvania, bounded and de- scribed pursuant to a survey by Rodney Lee Decker, Registered Sur- veyor, dated May 23, 1979, as fol- lows: BEGINNING at a stone pile, a corner of land now or formerly of Old Town Run Mountain Lodge and land now or formerly of No V. Otto, Jr. and S. Katherine Guy; thence by land now or formerly of No V. Otto, Jr. and S. Katherine Guy, North 26 degrees 13 minutes 20 seconds West 648.4 feet to a point; thence by the same, South 87 de- grees 56 minutes 40 seconds East 603.26 feet to a point; thence by land now or formerly of Rhea H. Otto, South 82 degrees 18 minutes 8 seconds East 774.87 feet to a point; thence by land now or for- merly of Old Town Run Mountain Lodge, South 67 degrees 10 min- utes 45 seconds West 1176.34 feet to the Place of BEGINNING. CONTAINING 7 acres, more or less. BEING the same premises which Alan G. Unger, a/k/a Alan Grant Unger, granted and conveyed to Shelby Jane Baez, Grantor herein, by deed dated February 28, 2002 and recorded in the Office of the Recorder of Deeds for Cumberland County in Deed Book 250, Page 2968. PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: (Check one) (XX ) for JURY trial at the next term of civil court. ( ) for trial without a jury. ----------------------------------------- CAPTION OF CASE (entire caption nust be stated in full) (check one) MT. VALLEY FARMS & LUMBER PRODUCTS, INC. (g ) Civil Action - Law ( ) Appeal from Arbitration (other) (Plaintiff) VS. ALAN G. UNGER (Defendant) VS. The trial list will be called on oc ob 16 and Trials cotmmnce on November 13 Pretrials will be held on October 24 (Briefs are due 5 days before pretrials.) (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214.1.) No. 2582 Civil ACTION LAW ,EX 2005 Indicate the attorney who will try case for the party who files this praecipe: Thomas J. Williams, Esquire and Trudy E. Fehlin$er, Esquire Indicate trial counsel for other parties if known: John J, Mangan, III-, Esquire This case is ready for trial. Signed: J C . (/ Thefias J. Williams,-- Esquire Print Name: Trudy E,>Fehlinger, Esquire Date: September 24, 2007 Attorney for: Plaintiff ^1 O `Z3 G s `?.1 ? L p -G . MT. VALLEY FARMS & LUMBER PRODUCTS, INC., Plaintiff V. ALAN G. UNGER, Defendant TO: Alan G. Unger 240 Red Tank Road Boiling Springs, PA 17007 : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-2582 CIVIL TERM NOTICE Please be advised that John J. Mangan, Esquire has filed a Petition for Leave of Court to Withdraw as Counsel. MT. VALLEY FARMS & LUMBER : IN THE COURT OF COMMON PLEAS OF PRODUCTS, INC., : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. CIVIL ACTION - LAW ALAN G. UNGER, NO. 05-2582 CIVIL TERM Defendant PETITION FOR LEAVE OF COURT TO WITHDRAW APPEARANCE AND NOW, comes John J. Mangan, Esquire, counsel for Defendant, Alan G. Unger, (hereinafter "Defendant"), and hereby requests Leave of Court to Withdraw as Counsel for Defendant and in support thereof avers as follows: 1. Defendant's last known primary residence was 240 Red Tank Road, Boiling Springs, PA 17007. 2. Undersigned counsel and Defendant have come to a point where their attorney-client relationship has deteriorated whereby undersigned counsel cannot further represent Defendant. 3. Undersigned counsel cannot represent Defendant due to expectations that cannot be met. Wherefore, undersigned counsel, John J. Mangan, Esquire, counsel for the Defendant, Alan G. Unger, hereby requests this Honorable Court to grant Leave of Court to Withdraw as Counsel for Defendant, Alan G. Unger. Date: September 26, 2007 Respectfully submitted, BAYLEY & MANGAN John J. II, Esqui 17 W st St h Street Carl' le, PA 17013 (717) 241-2446 Supreme Court ID # 87000 Attorney for Defendant MT. VALLEY FARMS & LUMBER PRODUCTS, INC., Plaintiff V. ALAN G. UNGER, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 05-2582 CIVIL TERM ATTORNEY VERIFICATION John J. Mangan, Esquire, states that he is the attorney for Alan G. Unger, Defendant, in this action; that he makes this affidavit as attorney because he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa. C.S. Pa.C.S. §4904, relating to unsworn falsification to authorities. Date: September 26, 2007 '- Jo J. gan, EsqItt, A orney for Defend MT. VALLEY FARMS & LUMBER PRODUCTS, INC., Plaintiff V. ALAN G. UNGER, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-2582 CIVIL. TERM CERTIFICATE OF SERVICE I, John J. Mangan, Esquire, attorney for Defendant do hereby certify that I this day served a copy of the within Petition upon the following by depositing same in the United States mail, postage prepaid, at Carlisle, Pennsylvania, addressed as follows: Thomas J. Williams, Esquire 10 East High Street Carlisle, PA 17013 Alan G. Unger, Defendant 240 Red Tank Road Boiling Springs, PA 17007 John J. for Defendant Dated: September 26, 2007 r ? ?? 1 _ C __a ,^{ ! t ,9?: ' - _: ? ".- ? ; _' _...1 ;. {._i -„ ': ?-- .. ("? F. \FILEWIients\ 11298\ 11298.1.ans 1 /TDE Created: 9/20/04 0:06PM Revised: 10/ 1 /07 1028AM Thomas J. Williams, Esquire MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES I.D. 17512 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff MT. VALLEY FARMS & LUMBER PRODUCTS, INC., Plaintiff V. ALAN G. UNGER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-2582 CIVIL ACTION - LAW JURY TRIAL DEMANDED PLAINTIFF'S ANSWER WITH NEW MATTER TO PETITION FOR LEAVE TO WITHDRAW AS COUNSEL TO: ALAN G. UNGER, Defendant, and his attorney, JOHN J. MANGAN, III, ESQUIRE 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. AND NOW, comes Plaintiff Mt. Valley Farms & Lumber Products, Inc., by and through its attorneys MARTSON LAW OFFICES, and hereby Answers the Petition for Leave to Withdraw as Counsel as follows: 1-3. Denied. After reasonable investigation, Plaintiff is without knowledge of the accuracy of the allegations made in the Petition for Leave to Withdraw Appearance; consequently, the same is denied. NEW MATTER 4. This matter has come before the Honorable M. L. Ebert, Jr., who has admonished Defendant that no continuances will be granted due to lengthy delays caused by Defendant at that point. 5. This case is listed for trial during the November Term of Court 6. Provided that the withdraw of counsel will not be the basis for continuance, Plaintiff will have no objection to same. WHEREFORE, Plaintiff does not oppose the Petition PROVIDED that the withdraw of counsel not be used as a basis for continuance of the trial currently listed for the November Term of Court. Respectfully Submitted, MARTSON LAW OFFICES By I ?? wd^z'_ Thomas J. Williams, Esquire Ten East High Street Carlisle, PA 17013 (717) 243-3341 Date: Attorneys for Plaintiff VERIFICATION Thomas J. Williams, Esquire, of the firm of MARTSON LAW OFFICES, attorneys for Plaintiff in the within action, certifies that the statements made in the foregoing Answer with New Matter are true and correct to the best of his knowledge, information and belief. He understands that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. c Thomas J. WPams, Esquire CERTIFICATE OF SERVICE I, Tricia D. Eckenroad an authorized agent for Martson Law Offices, hereby certify that a copy of the foregoing Answer was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: John Mangan, III, Esquire Bayley & Mangan 17 West South Street Carlisle, PA 17013 Mr. Alan G. Unger 240 Red Tank Road Boiling Springs, PA 17007 MARTSON LAW OFFICES ncia D. Eckenroad Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: C)d OwL., aN f'r? 1... c:..s ..A '"7?7 {-? ?-? ' ' i ?_ t t .- ,._. s N _ ,? -.;'_, -°;? -. .. ` ?{ f..3 " - c;? .i3 ? MT. VALLEY FARMS & LUMBER PRODUCTS, INC., PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ALAN G. UNGER, DEFENDANT : NO. 05-2582 CIVIL ORDER OF COURT AND NOW, this 17th day of October, 2007, upon consideration of the Petition for Leave of Court to Withdraw Appearance, IT IS HEREBY ORDERED AND DIRECTED that: 1. A Rule is issued upon the Defendant to show cause why the relief requested by Petitioner should not be granted; 2. The Defendant will file an answer on or before November 6, 2007; 3. The Petition shall be decided under Pa.R.C.P. 206.7; 4. The Prothonotary is directed to forward said Answer to this Court. 5. If no answer to the Rule to Show cause is filed by the required date, the relief requested by Petitioner shall be granted. 6. Notice of entry of this Order shall be provided to all parties by Petitioner. By the Court, M. L. Ebert, Jr., J. /hn Mangan, Esquire Petitioner ,,4(lan G. Unger, Defendant /homas Williams Esquire Attorney for Plaintiff bas L .Z 6 1 loo ?pOZ MT. VALLEY FARMS & LUMBER PRODUCTS, INC., Plaintiff vs. ALAN G. UNGER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-2582 CIVIL : JURY TRIAL DEMANDED IN RE: PRETRIAL CONFERENCE Present at a pretrial conference held October 24, 2007, were Thomas Williams, Esquire, and Trudy Fehlinger, Esquire, attorneys for the plaintiff. John Mangan, Esquire, participated by telephone. Mr. Mangan has pending a motion to withdraw as counsel. It is quite possible that the defendant will not appear for the trial of this case setting the stage for a default. In the meantime, however, matters pertaining to Mr. Mangan's withdrawal as counsel are pending before Judge Ebert. Matters pertaining to this case should be referred to Judge Ebert. October 24, 2007 Thomas Williams, Esquire Trudy Fehlinger, Esquire For the Plaintiff John Mangan, Esquire For the Defendant Court Administrator :rlm Z -.01 W 52 130 LOOZ MT. VALLEY FARMS & LUMBER PRODUCTS, INC., Plaintiff V. : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA : CIVIL ACTION -LAW ALAN G. UNGER, : NO. 05-2582 CIVIL. TERM Defendant MOTION TO MALE RULE TO SHOW CAUSE ABSOLUTE AND NOW, comes John J. Mangan, Esq., currently counsel for the Defendant, Alan G. Unger, (hereinafter "Defendant"), and hereby respectfully moves this Court to make absolute the Rule to Show Cause, which was issued in the above-captioned matter Rule Returnable November 6, 2007, and in support of this motion states the following: 1. Undersigned counsel filed a Petition for Leave to Withdraw as Counsel on behalf of Defendant. 2. This Honorable Court issued a Rule on all parties to show cause why undersigned ought not be permitted to withdraw as counsel and said rule was returnable November 6, 2007. 3. Counsel for Plaintiff has indicated that he does not oppose undersigned counsel's withdrawing from representation of Defendant and has not responded to the issued Rule to Show Cause. 4. Defendant did not respond to the issued Rule to Show Cause and has indicated to the undersigned that he does not oppose said Petition. WHEREFORE, John J. Mangan, Esq. respectfully requests that this Court make the Rule to Show Cause Absolute and to grant leave of court to withdraw as counsel for Defendant, Alan Unger. Respectfully submitted, BAYLEY & MANGAN Date: November 8, 2007 John. Mogan, Esqi 17 West outh Street Carlisle, PA 17013 (717) 241-2446 Supreme Court ID#87000 w M MT. VALLEY FARMS & LUMBER PRODUCTS, INC., Plaintiff v. ALAN G. UNGER, Defendant : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA : CIVIL ACTION -LAW NO. 05-2582 CIVIL TERM Verification I, John Mangan, hereby verify that the facts contained within the foregoing Motion to make rule absolute are true and correct to the best of my knowledge, information and belief and are made pursuant to 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities. Date: 1 ( John MT. VALLEY FARMS & LUMBER PRODUCTS, INC., Plaintiff ALAN G. UNGER, V. Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL. ACTION -LAW : NO. 05-2582 CIVIL TERM CERTIFICATE OF SERVICE I, John Mangan, Esq. attorney for Defendant do hereby certify that I on this day served a copy of the within Petition upon the following by depositing same in the US mail, postage prepaid, at Carlisle, PA, addressed as follows: Thomas J. Williams, Esq. 10 East High Street Carlisle, PA 17013 Alan Unger 236 Red Tank Rd. Boiling Springs, PA 17007 e+a h g3l ? Ln ' r ? A MT. VALLEY FARMS & LUMBER PRODUCTS, INC., Plaintiff V. ALAN G. LINGER, Defendant ?l011 920 r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 05-2582 CIVIL TERM ORDER AND NOW, this day of 064 , 2007, it is hereby ADJUDGED, ORDERED and DECREED that the rule which was issued to all parties to show cause why John J. Mangan, Esq.'s Petition to Withdraw as Counsel should not be granted, is made absolute and John J. Mangan's request to withdraw as Defendant's counsel is GRANTED. By the Court: 0 tvm? . tl Q- <,? P / Tuv'glplam- 'ItY (::)? )7) Atv A?? _ Lo lid 1892 MT. VALLEY FARMS & LUMBER PRODUCTS, INC., Plaintiff V ALAN G. UNGER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-2582 CIVIL ORDER OF COURT AND NOW, this 13th day of November, 2007, the motion of the plaintiff to preclude Defendant Unger from presenting testimony with regard to liability and/or any reasons for the delay that caused the plaintiff damages is granted. The trial herein shall be limited to the question of damages only. By the Court, hiomas Williams, Esquire For Plaintiff -,flan G. Unger, Pro se :bg >- r? o ' w cam CD Zy cL Y C) MtU [ J, U- © e--- N > MT. VALLEY FARMS & IN THE COURT OF COMMON PLEAS OF LUMBER PRODUCTS, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW VS. NO. 05-2582 CIVIL ALAN G. UNGER, Defendant JURY TRIAL DEMANDED VERDICT AND NOW, this G` day of December, 2007, the court being satisfied that the plaintiff is entitled to damages through April of 2005, and the measure thereof having been unrefuted by competent testimony, the court finds in favor of the plaintiff and against the defendant in the amount of $608,895.00. BY THE COURT, I Thomas J. Williams, Esquire For the Plaintiff Alan G. Unger, Pro Se 240 Red Tank Road Boiling Springs, PA 17007 :rim IN RE: NONJURY TRIAL 11,167 i tl ! ! ;'• r ter` _i.` _ :? i"t.L .? .? i._i??1J t G? per- ? MT. VALLEY FARMS & IN THE COURT OF COMMON PLEAS OF LUMBER PRODUCTS, INC., Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V CIVIL ACTION - LAW ALAN G. UNGER, NO. 05-2582 CIVIL Defendant ORDER OF COURT AND NOW, this 13th day of November, 2007, the motion of the plaintiff to preclude Defendant Unger from presenting testimony with regard to liability and/or any reasons for the delay that caused the plaintiff damages is granted. The trial herein shall be limited to the question of damages only. By the Court, Thomas-Williams, EsquirE For Plaintiff Alan G. Unger, Pro se KEVIN A. HESS JUDGE ONE COURTHOUSE SQUARE CARLISLE, PENNSYLVANIA 17013 Mr. Alan G. Unger 240 Red Tank Road Carlisle, PA 17,013 PN' 4 ? D PITNEY BOWES 02 1A $ 00.4' 0004631598 NOV19 2( MAILED FROM ZIP CODE 1 7 ( NIXIE 171 CC 1 2S lil21l+ RETURN TO SENDER NO SUCH STREET UNABLE TO FORWARD l7al3*999.9 0000 SC ; 17013 X2423-ta342'IS- 19- ? e -4f 0 - MT. VALLEY FARMS & IN THE COURT OF COMMON PLEAS OF LUMBER PRODUCTS, INC., Plaintiff- CUMBERLAND COUNTY, PENNSYLVANIA V CIVIL ACTION - LAW ALAN G. UNGER, NO. 05-2582 CIVIL Defendant. ORDER OF CCURT AND NOW, this 13th day of November, 2007, the motion of the plaintiff to preclude Defendant Unger from presenting testimony with regard to,liability and/or any reasons for the delay that caused the plaintiff damages is granted. The trial herein shall be limited to the question of damages only. By the Court, Thomas Williams, Esquire For Plaintiff Alan G. Unger, Pro se KEVIN A. HESS P= JUDGE ONE COURTHOUSE SQUARE CARLISLE, PENNSYLVANIA 17013 1 5 y? -r?i? 7 ® wtNEV Bows 02 1A 400-41 0004631598 NOV19 20C MAILED FROM ZIP CODE 1 701 Mr. Alan G. Unger 610 Alexander Spring Road Carlisle, PA 17013 171 NEE 1 607C 2S ii/21/0 RETURN TO SENDER UNGER'ALAN G MOVED • L..EFT NO ADDRESS UNABLE" TO FORWARO RETURN TO SENDER 1701.5-01913, R017 BC: 1701*.^4.20-ta3427-18-4 1 111 lti a ?t : i ? F:\FILES\Clients\11298 Mt. Valley\I1298.I.pral Created: 9/20/04 0:06PM Revised: 1/10/08 9:44AM Thomas J. Williams, Esquire MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES I.D. 17512 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff MT. VALLEY FARMS & LUMBER IN THE COURT OF COMMON PLEAS OF PRODUCTS, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : NO. 05-2582 CIVIL ACTION - LAW ALAN G. LINGER, Defendant JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please enter judgment in favor of the Plaintiff and against the Defendants on the verdict entered on December 6, 2007, in the amount of $608,895.00; no timely post-trial motions were filed. MARTSON LAW OFFICES Date: January 10, 2008 BY 4 I/V'&..- Thomas J. Williams, Esquire 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: John Mangan, Esquire BAYLEY & MANGAN 17 West South Street Carlisle, PA 17013 Mr. Alan G. Unger 236 Red Tank Road Boiling Springs, PA 17007 Mr. Alan G. Unger 240 Red Tank Road Boiling Springs, PA 17007 Mr. Alan G. Unger 610 Alexander Spring Road Carlisle, PA 17013 MARTSON LAW OFFICES Y Z4- 0 M tzwogl- "fricia D. Eckenroad Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: January 10, 2008 ._, ..? ..?,, 'y -o ? ? ?... ""? ;?** T' CJ r ? ?, .p .°a ? ? G .,?? _,? ? = ? r ?, c? ?`? ?; `'? ? } -?