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HomeMy WebLinkAbout05-6083 1.':\1 'ILESID^TAFI U ,\Gcncr~1\( :urrcnl\ll.1(,').1 J. proconf Cl>;~\\:rl: \ ljl~!\\~ 2:42PM Rc'vi.'>\:d: 11/lx/II'i 2:'i2I'M Carl C. Risch, Esquire !.D. 75901 Hillary A. Dean, Esquire LD.92878 MARTS ON DEARDORFF WILLIAMS & OTTO 10 East High Street Carlisle, P A 17013 (717) 243-3341 Attorneys for Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA JOHN GROSS & COMPANY, Plaintiff v : NO. 05 -&:1&3 CIVIL TERM GEORGE HALKIAS, Defendant CONFESSION OF JUDGMENT Pursuant to the authority contained in the warrant of attorney, the original or a copy of which is attached to the Complaint filed in this action, I appear for the Defendant and confess judgment in favor of the Plaintiff and against Defendant as follows: Principal Sum $40,895.32 Other authorized items: Filing Fees/ Costs ..$.19.50 Interest from October 21, 2005 $766.46 Attorney fees $6134.29 Total amount due: $47,815.57 - 1'I5.-E- C@t)"I'" - Attorney for Defendant '-11/7(16,07 Inv>>;f ,)</,11' Judgment entered as above, this r4J!.- day of ~ I",\].j 1.1 ':S\I)AT^]:I 1 ,1:\1 j~neral\Currenl\XY,').l J .wn I,,~~judg ('[';;lle\!: 111\51\\5 11:\\2^M I,evi~ed: ] 1/2X/05 2;5XI'M Carl C. Risch, Esquire J.D. 75901 Hillary A. Dean, Esquire J.D. 92878 MARTSON DEARDORFF WILUAMS & OTTO 10 East High Street Carlisle, P A 17013 (717) 243-3341 Attorneys for Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA JOHN GROSS & COMPANY, Plaintiff v : NO. 05 - CIVIL TERM GEORGE HALKIAS, Defendant COMPLAINT IN CONFESSION OF .JUDGMENT Plaintiff files this Complaint pursuant to Pa. R.C.P. 2951(b) for judgment by confession and avers the following: 1. Plaintiff, John Gross & Company is a food service distributor with a business address at 400 Cheryl Avenue, P.O. Box 1189, Mechanicsburg, Cumberland County, Pennsylvania, 17055. 2. Defendant, George Halkias is an individual who resides at 358 Dorwart Circle, Etters, Pennsylvania, 17319. 3. Attached as Exhibit "A" is a true and correct copy of the original instrument authorizing confession duly executed by Defendant. 4. Judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. 5. The attached instrument has not been assigned. 6. Judgment has not been entered in any jurisdiction on the attached instrument authorizing confession. 7. Contrary to the terms and provisions of the written instrument, Defendant failed to remit payment on invoices, and sent checks which were returned by the bank to Plaintiff as "not sufficient funds," all of which constitutes a default under the instrument, and Plaintiff exercises his option to declare the entire balance of the instrument immediately due and payable. . 8. Per the original instrument (Exhibit "A"), interest shall run on the unpaid amount at 18% per annum. 9. Consequently, the Defendant is liable to Plaintiff as follows: Unpaid balance of instrument, including service charges and not sufficient funds checks $40,895.32 Interest at 18% per annum from October 21, 2005 through November 28, 2005(broken down to $20.17 per diem) $766.46 Attorney's collection fee $6,134.29 Filing fees and costs $19.50 Total $47,815.57 WHEREFORE, Plaintiff demands judgment in the sum of $47,815.57 as authorized by the warrant of attorney contained in the attached instrument. :mfD~ WITLMMS & ana Carl C. Risch, Esq uire Attorney I.D. No. 75901 Hillary A. Dean, Esquire Attorney I.D. No. 92878 10 East High Street Carlisle, P A 17013 (717) 243-3341 Date: November 28, 2005 Attorneys for Plaintiff Ifl) \i~ i.A Ou ,).. f;u-ttd Cu~tomef Name I~~O Customer Number Welcome to the Family of :John gross & Go. gnc. Committed to the Success of our Customers For over 50 years! Credit Application & Personal Guarantee 400 Cheryl Avenue · P.O. Box 1189. Mechanicsburg, PA 17055 717-766-2508 1-800-368-6800 Fax 7J7-790-9642 EXHIBIT "A" S/03 . LEGAL COMPANY NAME . ','1 'IJ V E..e m MP (5()4fJ TRADE NAME (DBA) /l:tJ1VJtr..<!.~L).4 gt/F,r6-r PROPRIETOR EIN NUMBER '6, 7-,(J r~ If J l3 I Please check one of the following: :J State Corporation registered to do business in __ ~proprietorship :J Partnership Length of Time Operating/Owning this Establishment A ~, ) Do you: 0 Own 0 Rent 0 Currently purchasing property IV APPROXIMATE CREDIT REQUIREMENTS NO. OF EMPLOYEES PENNSYLVANIA SALES TAX EXEMPTION NUMBER: If you hold a valid Pennsylvania Blanket Sales Tax Exemption Certificate Please attach executed form Rev 1220: Exemption certificate BUSINESS ADDRESS SHIPPING BILLING "'d";,11:$/:!!J!o S'fFF6T C""""'N~" 1Zf""G-F 1M, XX," ~'=+-~ . ~~___ _ Address: &'-1;;', l(/~.K 7?i City,State /UH/) ()/ro4,tJ P.O. Box # Zip /7: ::?;:;'f) Bus. Phone# (.2i3 bj,l-j- 71t (, City, State !lJ8w c?;<f0L.rJ, ~ FAX# (7t1). /", ~ 'I - 'J r/ft Zip .I 1:; q) Bus. Phone# (:z;:J (.,.,). y- r~(.., Merchandise receiving hours ['-;111#1- A'lf6',if t(t:JtJFAX# C71r. 6/11/ -77 (j~ Special delivery instructions: EMAIL " NAME, ADDRESSES, PHONE NUMBERS OF ALL OWNERS/PARTNERS: Name 6-,:;1"JJ1{~ ~ ~4< Social Security # .?9C;-~-II&lPrivers License~-:;;'~ /&:.Jtate/1;. Home Address 3 ~:?l LJell'~ ((" '! -;1 t 1Zl . f3' Ht!4:S I,(fA. Email How long have you resided at this location? Home Phone ~) 7- - c;,S'6 -I') ~l3 Name Home Address Social Security # Drivers License State_ Email How long have you resided at this location? Home Phone Name Sociai Security # Drivers License State Home Address Email How long have you resided at this location? Home Phone Name Social Security # Drivers License State Home Address Email How long have you resided at this location? Home Phone BUSINESS BANK _S~ (/V'-2 F'J3 J(7 Name, Address, Phone REFERENCES 614.4..?}t... Contact Account # 3 ';;1)( / c1'~Q~ 5":::; PERSONAL BANK .-:::;'j V ~ F"'Zt;;, D ~ ~,D ~ , Name, Address, Phone Contact Account # ,;L~? /(J tI (J 17 & SUPPLIER REFERENCES Suppliers: 1. Name Address Phone# 2. Name Add ress Phone# 3. Name Add ress Phone# TERMS AND CONDITIONS In consideration for the extension of credit and intending to be legally bound hereby, the undersigned Buyer hereby agrees that the following terms will govern any charge account established by John Gross & Co. (SeUer) for Buyers benefit. 1. Payment. Buyer hereby agrees to pay the Time Sale Price of purchases charged to Buyers account. The Time Sale Price shall consist of the cash sale price including applicable sales tax and delivery charges, if any, plus service charges and any finance charge which may accrue pursuant to paragraph two (2) hereunder. 2. Past Due Accounts. Payment is due upon receipt. Failure to pay within 30 days of receipt ("the billing date") constitutes a default. Buyer hereby agrees that interest charges of 1112% per month or 18% per annum will be assessed on any account balance which is not satisfied within 30 days of the Billing Date. 3. Seller's Remedies. In the case of Buyer's Default, Buyer's entire account balance shalt become due and payable. Seller's waiver of any Default shall not operate as a waiver of any other Default. If Buyer's account is referred for collection to an attorney, Buyer will pay, to the extent permitted by law, reasonable attorney's fees and court costs incurred. 4. Seller's Discretion. The extension of temporary credit pursuant to this Agreement is within Seller's sole discretion and Seller may terminate this Agreement any time and for any reason. 5. Credit Check. Buyer hereby authorizes the firms and banking institutions listed above to furnish any information requested by Seller to process this application; and Buyer agrees that neither those firms nor their employees shall be liable for any claim of damages as a result of furnishing the requested information. 6. Buyer shall pay Seller a selVice charge of $25.00 for each check returned by the Buyer's bank, unless said selViee charge would result in the violation of the usury laws of the applicable jurisdiction. 7. Buyer shall notify Seller by certified mail immediately upon any change of ownership or change of Address of Buyer. 8. Buyer shall completely fill out all sections of the Credit Application before credit can be extended. CONFESSION OF JUDGEMENT I/We hereby irrevocably authorize and empower any prothonotary, clerk, or attorney of any court of record within the United States or elsewhere to appear for me/us and, with or without declaration, to confess judgement at any time or times against each, any or all of us and in favor of the Seller for the amount demanded by Seller to any Past Due Account under this Credit Application and Agreement, plus interest, costs of collection, and attorneys fees provided therein; and for so doing, this Agreement or a copy thereof, verified by affidavit shall be sufficient warrant. I/we hereby release all errors and expressly waive all rights to any stay of execution under any law or rule of court now in force or hereafter enacted. All of the foregoing promises are the joint and several promises of me/us and shall bind me/us, my/our heir, succession and assigns. I/we waive protest, demand and notice of nonpayment. The authority granted herein to confess judgment against me/us ~t be eXha~e;;y any exercise of that authority, but shall continue from time to time and at all times until payment in full of all amounts hereunder. Initial __Initial DISCLOSURE A. l/we understand that the above constitutes a Confession of Judgment provision that would permit the Seller to enter judgment against me/us in court, after a failure to pay on demand any Past Due Account, without advance notice to me/us and without offering me/us an opportunity to defend against the entry of judgment. In executing the Agreement, being fully aware of my/our rights to advance notice and to a hearing to contest the validity of any judgment or other claims that the Seller may ~ssert against me/us. I/we am knowingly, intelligently and voluntarily waiving these rights, including any right to advance notice of the entry of judgment. and I/we expressly agree and consent to the Seller's entering judgment against me/us by confession as provided for in this Confession of Judgment provision. B. I/we further understand that in addition to giving the Seller the right to enter judgment against me/us without advance notice or a hearing, this Confession of Judgment also contains language that would permit the SeUer, after entry of judgment, to execute on the judgment by foreclosing upon, attaching, levying on, taking possession of or otherwise seizing my/our property, in full or partial payment of the judgment. Being fully aware of my rights to advance notice and a hearing after judgment is entered and before execution on the judgment, I/we am knowingly, intelligently and voluntarily waiving these rights, and I/we expressly agree and consent to the Seiter's executing on the judgment, in any manner permitted by applicable state and federal raw. C. I/we certify that a representative of the Seller specifically called this Confession of judgment to my/our attention. D. I/we hereby certify that my/our annual income exceeds $10,000; that I/we received a copy hereof at the time of signing. Business nam6$:&-I/G..<' ~qat2 d();t:V. / Signature~ ~ V-(g,L1qp Title _{j'//'n{<7..,./ Print Signed Name ~k'!:--E --~L..6Z1f S Date u!,;( 1M _{;=---_ I certify the information provided in this credit Application and agreement is true and correct. I authorize JOHN GROSS to verify the information provided and to contact the references listed. Initial Initial PERSONAL GUARANTEE OF PAYMENT 1, ____ _, for and in consideration of your extending credit at my request to (the Buyer) personally guarantee prompt payment of any obligation of the company to John Gross & Co., and affiliated entities ("SELLER"), whether now existing or hereinafter incurred, and 1 further agree to bind myself to pay on demand any sum which is due by the Buyer to Seller whenever the Buyer fails to pay the same, it is understood that this guarantee shall be an absolute, continuing unlimited and irrevocable guarantee for such indebtedness of the Buyer. I expressly waive presentment, unlimited demand, protest, notice of protest, dishonor, diligence" notice of default or nonpayment, notice of acceptance of this guaranty, notice of the extending of any guaranteed indebtedness already or hereafter contracted for by the Buyer, notice of any modification or renew- al of any credit agreement evidencing the indebtedness hereby guaranteed, notice of any renewal or extension of such indebtness. I further waive any right to require Seller to proceed against, or make any effort at collection of the guaranteed indebtedness from, the Buyer or any other party liable for such indebtedness. If the guaranteed indebtedness is not paid by me when due, and this guaranty is placed in the hands of an attorney for collection or suit is brought hereon, or it is enforced through any judicial proceeding whatsoever, I shall pay aU reasonable attorneys' fees and court costs incurred by SeHer. In the event more than one party executes this guaranty as a guarantor, then such guarantor agrees to be jointly and severally liable for the guaranteed indebtedness, and in all instances herein, the singular shall be construed to include the plural. Guarantor/Surety X Date Guarantor/Surety Date x Home Address Home Address (If different from front) (If different from front) OFFICE USE ONLY ........................................................................................ Sales Person 10 Special Instructions Level _ Type Account _ Terms _ Limit_ Approved By Sii iIflr 13 r LQ /'-. -fu "?~ l Cl~ ~ NOV-22-2005 TUE 03:10 PM JOHN GROSS CO li!:2/2iIGS 14:3S 711~~318sa FAX NO, 17177909642 I,ID,IO P. 02 PAGE 03/83 . :YJ~RrFlCAJ:rml ,)- J._.bl.!.(:i.I\,'_..:I(:~I:S.!,~.~:?_________, Od~lOW]~ugc I h',we the i'ul.hority to eXte\lte \his Vie (:1)(-8,,;(,;, ~1]ll}I:;k,lf of,lr.hn G\O"$ & Company and cmify the fOIogoing Complainti. b~~ed upon il,iii,'(r,,,,"ir,;, 1~l1'kh h:J~1 hu' n f:,:.t.l...~red by ri,yco\lusd In the preparation of1h01awsu;t The laJ1en~ge ()fll,j~ C('i'J\phi,'(~ i,: the,! uf cou1lS01 and nOlmy-own. r hav., read the dOc\lme:lt and to lh~ extent the Co,.,',[,L,'I!,:. is 11.)\.;.0;] "j:OI.l ij'lf()nl1~.tioll which I have {,>1Vell to my counsel, it i.~, tme m1d correctto the h,J\.(lfll1j knCiwk..1g,:, i,.,f"m'Mj"li:13.nd bolief. To 11", "xtent !l,e c.olltentoflil<; Complaint is that of C(}uli.;,f~.:l.l )'::tVf~ ,(~..:ljl':d Wp(J~:l c,omj~;~] in m:;,kirL[f, this V~;rHic~dlon, 'd,i ': ,~i:,i'.1',1].:.j',.t :"ld V",.ifir..,ltiotl ~l"" n,:de subject (" tllo penalties of 18 Pa. C,S. ~ 490<1 relating t,) \.'lli.'Wom r":bili,:.... 1;',;\ 'l" ,.",11101 ilies, which provide~ th~t if I knowingly 1[lake flusI;' ~wrment'J, I 1't;,1Y l,o ~~\ll'1(~,;t{{) (.d,\',,;n:ii\ rc:m:hi\'"~5. JOIN GR(mS & COMPANY .. kJ~jVkl () I ..f.._ By: _.J ~~1t':./t.- fro( ~!i!C!-.T r') ;---> ~. "t. <:) ~ 0 --- q "'7C -----0 r. ~ ,,~ \ r,.) ,. '" c_ ~ '" -- 'Jl -\:"") 3 -..j -..i ~ v, I.) U\ <-- v-\ ~ ." g. ~ c_, ~ " ~ >. .. Gary E. French, Esquire Keefer Wood Allen & Rahal, LLP Attorneys for Defendant 210 Walnut Street Harrisburg, PA 17101 Ph: (717) 255-8015 Fx: (717) 255-8050 gtien c h lu!kceferwood .com JOHN GROSS & COMPANY, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. No. 05-6083 CIVIL TERM GEORGE HALKIAS, Defendant PETITION TO OPEN CONFESSED JUDGMENT NOW COMES, Defendant, GEORGE N, HALKIAS, by his attorneys, Keefer Wood Allen & Rahal, LLP, and files the following Petition to Open Confessed Judgment: I. Plaintiff, John Gross & Company, entered judgment by confession against Defendant Halkias on or about November 28, 2005, in the amount of $47,796.07. 2. Said Confessed Judgment was entered pursuant to a Confession of Judgment form dated and signed June 21,2005, by Silver Moon Restaurants, Inc., tld/b/a Americana Buffet. 3. The Confession of Judgment forn1 was part of a Tern1 and Conditions contract for the sale of food for a restaurant operated by Silver Moon Restaurants, Inc., t/d/b/a Americana Buffet. 4. The Confession of Judgment fom1 was intended to be initialed, aud was in fact initialed, by the buyer of the food, Silver Moon Restaurants, Inc., t/d/b/a Americana Buffet. . 5. The Terms and Conditions contract is prepared in 1he name "Silver Moon Corp.," which Defendant, George Halkias, a Greek immigrant, understood to be the name of his corporation. He operated day-to-day under the fictitious name Americana Buffet. 6. A review of records of the Pennsylvania Department of State, which records are available online at the Department's website, reflects an active corporation named Silver Moon Restaurants, Inc., and also reJlects that Silver Moon Restaurants, Inc. is the owner of the fictitious name Americana Buffet. This information was fully disclosed to Plaintiff in writing. 7. Judgment was improperly and illegally entered against Defendant Halkias, an individual, rather than against Silver Moon Restaurants, Inc., the actual debtor. 8. Plaintiff has also filed suit against the corporation Silver Moon Restaurants, Inc., at Docket No. 05-6087, alleging the same breach of contract as alleged in the Complaint for Confession of Judgment against Defendant Halkias. The Terms and Conditions contract, by its tem1s, is only between the Plaintiff and Silver Moon. Plaintiff does not have a contract cause of action against both Silver Moon and against its shareholder, Defendant Halkias, absent a separate guaranty. 9. Plaintiff has filed suit against every possible party connected with Silver Moon without any proper basis therefor. 10. The fonn of Confession of Judgment incorporated into the Terms and Conditions contract is invalid and violates minimum due process requirements of the United States Constitution and Pennsylvania law. -2- II. The TemlS and Conditions contract contains a Disclosure form relating to disclosure of the warrant for confession of judgment to individuals as required by law. However, the Disclosure form is not signed or initialed by any party. WHEREFORE, Defendant Halkias respectfully requests that the judgment entered against him be opened. Da1ed: December K, 2005 KEEFER WOOD ALLEN & RAHAL, LLP B ~ rench, Esquire Alto eyl.D.258]0 2] 0 Walnut Street P.O. Box 11963 Harrisburg, P A 17108-1963 Ph: (717) 255-8015 Fax: (717) 255~8050 Attorneys for Defendant, George N. Halkias -3- CERTIFICATE OF SERVICE I, Gary E. French, Esquire, attorney for Defendant, hereby certify that 1 have served the foregoing paper upon Plaintiff this date by depositing a true and correct copy of the same in the United States mail, first-class postage prepaid, addressed as follows: Carl C. Risch, Esquire Hillary A. Dean, Esquire Martson Deardorff Williams & Otto 10 East High Street Carlisle, PA 17013 KEEFER WOOD ALLEN & RAHAL, LLP BYe' ~tj; - '2-2- Dated: December~, 2005 -4- CJ r~ ~ n o -" ::.:1. ..,~. rn;.~;, -", \.' ~ ~., (-:'::) c',) r,;\ ~, '.5 ,'--, -l:.' ~",.~ r..-.~: r-,) ......~ C.-> - ---- Gary E. French, Esquire Keefer Wood Allen & Rahal, LLP Attorneys for Defendant 210 Walnut Street Harrisburg, PA 17101 Ph: (717) 255-8015 h: (717) 255-8050 gfrenc h(dikee ferwood.com JOHN GROSS & COMPANY, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. No. 05-6083 CIVIL TERM GEORGE HALKIAS, Defendant DEFENDANT'S ANSWER TO COMPLAiNT FOR CONFESSION OF JUDGMENT AND NEW MATTER NOW COMES, Defendant GEORGE N, HALKIAS, by his attorneys, Keefer Wood Allen & Rahal, LLP, and files the within Answer to Complaint for Confession of Judgment and New Matter, averring as follows: ANSWER I. Admitted. 2. Admitted. 3. Denied. It is denied that the instrument attached to the Complaint as Exhibit "A" is a true and correct copy of the original instrument or that it was executed by Defendant Halkias. Defendant believes, and therefore avers, that the credit application portion ofthe instrument may have been altered by Plaintiff to indicate that Defendant operates as a sole proprietorship. Additionally, 1he Terms and Conditions con1ract was executed by Silver Moon Restaurants, Inc., not individually by Defendant Halkias. 4. Admitted in part; denied in part. It is admitted that the transaction between Plaintiff and Silver Moon Restaurants, Inc. does not involve a consumer credit transaction. It is denied that Defendant Halkias was a party to that transaction. 5. Admitted. 6. Admitted. 7. Denied. All checks sent to Plaintiff were issued by Silver Moon Restaurants, Inc. Defendant Halkias sent no personal checks to Plaintiff. 8. Denied. The Terms and Conditions contract is a written agreement and, as such, speaks for itself. It is denied that Defendant Halkias was a party to said contract. 9. Denied. Defendant Halkias is not a party to the written contract between Plaintiff and Silver Moon Restaurants, Inc. Accordingly, Defendant Halkias is not liable to Plaintiff for any amounts. WHEREFORE, Defendant respectfully requests that the judgment entered against him be stricken, together with such other and further relief as the Court deems appropriate. NEW MATTER 10. The averments contained in Paragraphs 1 through 9 hereof are incorporated herein as though fully set forth. 11. Plaintiffs confessed judgment against an innocent third party without a proper basis in fact. -2- 12. The form of Confession of Judgment incorporated into the Terms and Conditions contract is invalid and violates minimum due process requirements of the United States Constitution and Pennsylvania law. WHEREFORE, Defendant respectfully requests that the judgment entered against him be stricken, together with such other and further relief as the Court deems appropriate. Dated: December JL, 2005 KEEFER WOOD ALLEN & RAHAL, LLP BG- Gary E. neh, Esquire Attom I.D.25810 210 Walnut Street P.O. Box 11963 Harrisburg, P A 171 08-1963 Ph: (717)255-8015 Fax: (717) 255-8050 Attomeys for Defendant, George N. Halkias -3- VERIFICATION The undersigned, GEORGE N, HALKlAS, hereby verifie:s and states that: 1, He is Defendant herein; 2. The facts set forth in the foregoing Answer are true and correct to the best of his knowledge, information, and belief; and 3, He is aware that false statements herein are made sqbject to the penalties of 18 Pa,C,S. Sec. 4904, relating to unsworn falsification to authorities,. c-.-bl. or ~ GEORGE N. HALKIAS Dated: December 16,2005 , , CERTIFICATE OF SERVICE l, Gary E. French, Esquire, attorney for Defendant, hereby certify that I have served the foregoing paper upon Plaintiff this date by depositing a true and correct copy of the same in the United States mail, first-class postage prepaid, addressed as follows: Carl C. Risch, Esquire Hillary A. Dean, Esquire Martson Deardorff Williams & Otto lO East High Street Carlisle, PA 17013 KEEFER WOOD ALLEN & RAHAL, LLP c ~~ ~E. French 2'Z----- Dated: December ,f(?- , 2005 -4- (') '" ~~-= =-> 0 -::.::, ~~ -n t:'1 :::! rr~ ., Hi ~ <J r-::' ~., (l -J c::> -;::~ .',: ( ~) <.-) ...J i n .2 .:;:~ .:2 f'-) ~ Cl '< JOHN GROSS & COMPANY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION - LAW GEORGE HALKIAS, Defendant NO. 05-6083 CIVIL TERM ORDER OF COURT AND NOW, this 30th day of December, 2005, upon consideration of Defendant's Petition To Open Confessed Judgment, it is ordered that: 1. A Rule is issued upon Plaintiff to show cause why Defendant is not entitled to the reliefrequested; 2. Plaintiff shall file an answer to the motion within 21 days of the date of this order; 3. The petition shall be decided under Pa. R.C.P. 206.7; 4. Depositions shall be completed within 49 days of the date of this order; 5. Argument shall be held on Wednesday, March 22, 2006, at 3:30 p.m., III Courtroom No.1, Cumberland County Courthouse, Carlisle, Pennsylvania. 6. Briefs shall be submitted at least seven days prior to argument. BY THE COURT, .T. , ! :.',-"" ,\,'" ,1 -"'.-"')(1::1 Oi :2 HeI os :na SaUl j.jj\iJ.U,;;"C:JJ 3H1 :10 :D:C;C> 'Cioll!:! _.~- ~---- -- - Carl C. Risch, Esq. Hillary A. Dean, Esq. Ten East High Street Carlisle, PA 17013 Attorneys for Plaintiff Gary E. French, Esq. 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 Attorney for Defendant :rc ~ ~ d,(?~ C-1-' F\FILES\DA T AFlLEIGenerallCurrentl8369 31_petans Created l/4!062:46PM Revised 1/17/062:32PM Carl C. Risch, Esquire J.D. 75901 Hillary A. Dean, Esquire J.D. 92878 MARTSON DEARDORFF WILLIAMS & OTTO 10 East High Street Carlisle, P A 17013 (717) 243-3341 Attorneys for Plaintiff JOHN GROSS & COMPANY, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA v. : NO. 05 - 6083 CIVIL TERM GEORGE HALKIAS, Defendant : CIVIL ACTION - LAW PLAINTIFF'S ANSWER TO PETITION TO OPEN CONFESSED JUDGMENT AND NEW MATTER TO: GEORGE HALKIAS, Defendant, and his attorney, GARY E. FRENCH, 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 MAYBE ENTERED AGAINST YOU. AND NOW comes Plaintiff, John Gross & Company, through its attorneys, MARTSON DEARDO RFF WILLIAMS & OTTO, and files the following Answer to Defendant's Petition to Open Confessed Judgment: I. Admitted. 2. Denied. It is denied that said form was signed by Silver Moon Restaurants, Inc. Said form was signed by George Halkias as owner of Silver Moon Corp, a sole proprietorship. 3. Admitted in part, denied in part. It is admitted that the confession of judgment form was part of a contract for the sale and delivery of food. It is denied that the contract was signed by Silver Moon Restaurants, Inc. It is also denied that a restaurant was operated by Silver Moon Restaurants, Inc. After reasonable investigation, Plaintiff cannot admitto this allegation; therefore, this allegation is denied and strict proof is demanded. 4. Denied. The confession of judgment form was initialed by George Halkias. 5. Denied. After reasonable investigation, Plaintiff cannot admitto this allegation; therefore, this allegation is denied and strict proofis demanded. By way of further answer, the Defendant is estopped from denying knowledge of his corporate name since he is the person who signed the articles of incorporation. 6. Admitted in part, denied in part. It is denied that the allegations in Paragraph 6 were disclosed to Plaintiff. 7. Denied as a conclusion oflaw. 8. Admitted in part, denied in part. It is admitted that Plaintiff filed suit against Silver Moon Restaurants, Inc., tld/b/aAmericanaBuffett, DocketNo. 05-6087 alleging breach of contract, fraud, and unjust enrichment. It is denied that the contract signed by George Halkias as a sole proprietor of Silver Moon Corp. is only between Plaintiff and Silver Moon Restaurants, Inc. It is further denied Plaintiff requires a separate guaranty to have a sustainable cause of action against Mr. Halkias. Plaintiffhas a contractual relationship with George Halkias as the owner of Silver Moon Corp., a sole proprietorship. 9. Denied. Plaintiffhas properly confessed judgment against George Halkias and has initiated an action against Silver Moon Restaurants, Inc. 10. Denied as a conclusion oflaw. II. Admitted in part, denied in part. It is admitted that the contract contains a disclosure form. It is denied as a conclusion onaw that such form is required by law to be signed or initialed by any party. WHEREFORE, Plaintiff requests that this Honorable Court deny Defendant's request to open judgment against him. NEW MATTER 12. Paragraphs 1 through 11 are incorporated herein by reference. 13. On June 21, 2005, a credit application and personal guarantee (hereinafter "contract") between John Gross & Company and George Halkias was signed and executed. The contract included authorization for confession of judgment for past due amounts. On said contract, Mr. Halkias stated that the legal company name was Silver Moon Corp., which he was operating as a "sole" proprietorship. The contract stated that Silver Moon Corp. was a "new" establishment. 14. Mr. Halkias failed to make payment of invoices for food service items he received from John Gross & Company from June, 2005, through September, 2005. 15. On November 28,2005, John Gross & Company confessed judgment against Mr. Halkias in the amount of$47, 796.07, the amount which was due and owing under the contract, including interest and attorney fees. 16. John Gross & Company also initiated a separate suit against Silver Moon Restaurants, Inc. tld/b/a Americana Buffet alleging breach of contract, fraud, and unjust enrichment. 17. The separate suit against Silver Moon Restaurants, Inc. tldlb/aAmericana Buffet is distinct from, has no affect upon, and is not affected by the credit application signed by George Halkias as a sole proprietor. 18. Mr. Halkias filed a Petition to Open Confessed Judgment on December 16,2005, alleging that the contract was not executed by Mr. Halkias as a sole proprietor, but by Silver Moon Restaurants, Inc., a Pennsylvania corporation. 19. Under Pa. R.C.P. 2959( e), the Court may open a judgment if evidence is produced which in a jury trial would require the issues to be submitted to the jury. 20. In this case, Mr. Halkias has not produced any evidence which, if this were a jury trial, would require submission to the jury. 21. The contract signed by George Halkias is not ambiguous in any of its terms. 22. Under the parol evidence rule, Mr. Halkias is estopped from denying the existence of the contract; nor can he allege the existence of evidence that adds to, varies, or contradicts the terms ofthe contract. WHEREFORE, Plaintiff requests that this Honorable Court deny Defendant's request to open judgment against him. MARTS ON DEARDORFF WILLIAMS & OTTO , ~-::-\~n lJQJ !:y By Carl C. Risch, Esquire I.D. No. 75901 Hillary A. Dean, Esquire I.D. No. 92878 10 East High Street Carlisle, P A 17013 (717) 243-3341 Date: \-\l-()Iv Attorneys for Plaintiff JAN-17-2006 TUE 04:08 PH JOHN GROSS CO ,]\/17120(,0 15:'1,1 711241.1flSO Ml..lWU FAX NO. 17177909642 p, 02 ",,~,...... ~~._- YEBTFJCATlQN l:> "\" 1 () I J.. J.".., J II) '! iL. .j; {~!~,;S -0 t.\I~1i-I. <ctnvwkdge Ih:wtthe aU'chorilyto mr.eeutethis Verification on 1,,))"1.\: (,f]<lhH (hL'SS & COi'I',p:..ny;u!<.l cI"l'liJythe f~r%"oing A:lL~...erto Petition to Opell Confessed JUil)~.nl:;\' l ;,1\<:1 N:,';\' M,,! Lr.t i~, t'~1:),i "pOll inf.mnfttion which has b\:en [\nt11~r~d by my coun.wl in the pSI:"r,,:;; ')1.1 "f\k 1::w.\:lt. 1'h~ j"'I;\llfl[:;",ot\his Compl2ili\t!3 fhntofc01msel3ndnotmyown. Ihavel'Clld \1,., d{),,\!:,,"ll~ 0',\(1 \(I \1,,, (""tco,t t1;., CCl"\p1<jT:ti~ based llpon informullon wnkllIhave t,1venrolI1Y OOUllSel, it is 11'\1.': ",,(\ ('on,"\ to ti1~ l."lof rdyk(wwJ,"dg~, iJ>.form<ltion and bdicf. To the cxh:nt thcconteot o1'me C'j,y,pl"i"t i~ 1.1',.,( OfC,\\lll~ot, I b.w,) rdied upon COll~'",>cl in making this Verification. Thi:1 f.I:;I~l'n:""t iii'"d Vcdfic"!Jon or~ miJd~ subject t"th,~ p~.mutics of!&l"Q, C.s. ~ 4904 relatinlllo unWM (, i':1o jji,:1,1i<"I\.1.o ~"'lh<:OJit.:,".~, wlJk11 provides tbt in kllowingly wake f~lse averJ'llGlllS, Il\layb~ ~inbIN:t ((, l,,~.filiJl:rl:J j,;,c:t')i,l~lic,!;. JOHN OROSS &. COMPANY n,d/f"- fi?,.tL CERTIFICATE OF SERVICE I hereby certifY that a copy of the Answer to Petition to Open Confessed Judgment and New Matter was served this date by depositing same in the Post Office at Carlisle, P A, first class mail, postage prepaid, addressed as follows: Gary E. French, Esquire KEEFER WOOD ALLEN & RAHAL, LLP 21 0 Walnut Street Harrisburg, PAl 71 01 Attorney for D~fendant MARTS ON DEARDORFF WILLIAMS & OTTO " Date: 1/ I Bj DIP r".1 '.:\'\ ~~ c:' f"":'; -- \ ." JOHN GROSS & COMPANY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION - LAW GEORGE HALKIAS, Defendant NO. 05-6083 CIVIL TERM IN RE: DEFENDANT'S PETITION TO OPEN JUDGMENT ORDER OF COURT AND NOW, this 8th day of March, 2005, upon consideration of the attached letter from Hillary A. Dean, Esq., attorney for Plaintiff, the Rule issued on December 30, 2005, is discharged, and the argument previously scheduled for March 22, 2006, is cancelled. BY THE COURT, .Arl C. Risch, Esq. Hillary A. Dean, Esq. Ten East High Street Carlisle, P A 17013 Attorneys for Plaintiff vflary E. French, Esq. 21 0 Walnut Street P.O. Box 11963 Harrisburg, P A 17108-1963 Attorney for Defendant ?<;-- ------ \p ~.D {) ":J () :rc " f:\FlLE5\DA T AFILE\Gener..!\Currenr\&36931.conl Created: 3/22106 2:22PM Revised: 3122106 3.25PM 836931 Carl C. Risch, Esquire l.D. 75901 Hillary A. Dean, Esquire I.D. 92878 MARTS ON DEARDORFF WILLIAMS & OTTO 10 East High Street Carlisle, PA 17013 (717) 243-334] Attorneys for Plaintiff JOHN GROSS & COMPANY, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 05 - 6083 CNIL TERM GEORGE HALKIAS, Defendant : CNIL ACTION - LAW CONSENT ORDER On this ~ day of yvj 2) /.. L entered in No. 05-6083 shall be opened. ,2006, it here by ORDERED that the Judgment BY THE COURT , J. MARTSON DEARDORFF WILLIAMS & OTTO KEEFER WOOD By ri /I) Pi] f) itu (1 f)afi ~ eari c. Risch, El< ire " I.D. No. 75901 ~lIary A. Dean, Esquire l.D. No. 92878 10 East High Street Carlisle, PA 17013 (717) 243-3341 N & RAHAL, LLP Attorneys for Plaintiff Attorneys for Defendant ~:; C;:L> Cy\ lO CV) ":' L~ . n '-"./ \..1::-:> <;:,;',') (;:,~) '"