HomeMy WebLinkAbout02-2495EICHELBERGER
CONSTRUCTION, INC.,
Plaintiff
FRANK H. KELLY and
KAREN L. KELLY, husband and wife,
Defendants
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
N°' 02' °ZV 9"c ~
Civil Action
PRAECIPE TO ENTER JUDGMENT
Please enter judgment in accordance with Pennsylvania Rule of Civil Procedure 2951 (a)
against both Frank H. Kelly and Karen L. Kelly, husband and wife, in the mount of $57,335.80.
In support of this praecipe, please find the following documents:
1. The original Demand Promissory Note signed by Defendants with warrant of
confession;
An affidavit that the judgment is not being entered by confession against a natural
person in connection with a consumer credit transaction; and
3. A certificate of residence of both Plaintiff and Defendants.
Date: May 21, 2002
Respectfully submitted,
REAGER & ADLER, P.C.
Tho~as~). Williams, Esquire
Attorney I.D. No. 67987
2331 Market Street
Camp Hill, PA 17011~4642
(717) 763-1383
Attorneys for Plaintiff
EICHELBERGER
CONSTRUCTION, INC.,
Plaintiff
FRANK H. KELLY and
KAREN L. KELLY, husband and wife,
Defendants
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: No. 02.- 2 ~ qS' ~5;_.~
:
: Civil Action
PRAECIPE FOR ASSESSMENT OF DAMAGES
AND CONFESSION OF JUDGMENT
TO THE PROTHONOTARY:
Pursuant to the Warrant of Attorney contained in the Promissory Note, a copy of which is
attached to the Complaint filed in this action, I hereby confess judgment in favor of the Plaintiff
and against the Defendants and assess damages as follows:
Principal
Interest as of May 20, 2002
Collection fees at 10% as authorized
by this Warrant of Attorney
Total as of May 20, 2002
$50,910.20
$ 1,213.25
$ 5.212.35
$57,335.80
Date: May21, 2002
Respectfully submitted,
Th°~nas O. Williams, Esquire
Attorney I.D. No. 67987
2331 Market Street
Camp Hill, PA 17011-4642
(717) 763-1383
Attorneys for Plaintiff
EICHELBERGER
CONSTRUCTION, INC.,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
FRANK H. KELLY and
KAREN L. KELLY, husband and wife,
Defendants
No. 02-
Civil Action
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(s) and confess
judgment in favor of Plaintiff(s) and against Defendant as follows:
Principal
Interest as of May 20, 2002
Collection fees at 10% as authorized
by this Warrant of Attorney
Total
$50,910.20
$ 1,213.25
$ 5.212.35
$57,335.80
Date: May21, 2002
Respectfully submitted,
Thomas O.~Wi~a~ns~, Esquir~
Attorney I.D. No. 67987
2331 Market Street
Camp Hill, PA 17011-4642
(717) 763-1383
Attorneys for Defendant
EICHELBERGER
CONSTRUCTION, INC.,
Plaintiff
FRANK H. KELLY and
KAREN L. KELLY, husband and wife,
Defendants
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
No. 02- ,~rO5' ~ ~
Civil Action
COMPLAINT IN CONFESSION OF JUDGMENT FOR MONEY
Plaintiff is Eichelberger Construction, Inc., a Pennsylvania corporation engaged
in business as a construction contractor whose address is 124 West Church Street, Dillsburg,
Pennsylvania 17019.
2. Defendants are Frank H. Kelly and Karen L. Kelly, husband and wife with a
residence at 240 Poplar Avenue, New Cumberland, Pennsylvania 17070.
3. A tree and correct copy of the Promissory Note dated February 4, 2002, under
which Plaintiff is confessing judgment against the Defendants is attached hereto and marked
Exhibit "A".
4. The Promissory Note under which judgment is being confessed has not been
assigned.
5. The principal balance due thereunder is $50,910.20 plus interest together with
collection fees of 10% of these amounts as authorized by the Promissory Note for a total of
$57,335.80.
6.
7.
The Defendants have defaulted under the Promissory Note.
All conditions precedent for the bringing of this action have occurred and/or have
been performed.
8. Judgment has not been entered against Defendants in any jurisdiction for the
unpaid principal stun of $50,910.20, of the interest of $1,213.25 or the collection fees of
$5,212.35 for a total of $57,335.80 of the debt here demanded.
9. Judgment is demanded as authorized by the Warrant of Attorney contained in the
Promissory Note attached as Exhibit "A".
10. The Warrant appearing in the attached Promissory Note is less than twenty (20)
years old.
WHEREFORE, Plaintiffdemands judgment in the sum of $57,335.80, as authorized by
the Warrant appearing in the attached Promissory Note, together with interest from the date of
judgment and costs.
Date: May 21, 2002
Respectfully submitted,
Th6mas O. Williams, Esquire
Attorney I.D. No. 67987
2331 Market Street
Camp Hill, PA 17011-4642
(717) 763-1383
Attorneys for Plaintiff
$75,910.20
.PROIVHSSORYNOTE
Date:
-'l~rm'aryT, y'. 2002
For value received the undersigned, Frank I-I Kell and Karen L. Kelly of 240 Poplar · y
Avenue, New Cumberland, Pennsylvania (hereinafter referred to as "Maker"), promises to pay to
the order of Eichelberger Construction, Inc., a Pennsylvarda corporation with offices at 124 West
Church Street, Dillsburg, Pemtsylvania, 17019 (hereinafter referred to as "Lender"), ~ c:, (..'~
heirs
executors, admirdstrators, legal representatives succe ....... ~ ~_.:~_ l~ .~.~2
· oou,~ m,u a~l~ns, me arnounl:~l:i~sev~:~,.ty :
Five Thousand Nine Hundred Ten Dollars and 20 Cents ($75,9 ~0.20), together with i'?
~.~;est ~.'. he
· the princip ~""" he~_'
rate of prime rate plus 2% per year on tile unpatd balance of al sum until ly~ T
undersigned further promises to pay the principal sum and interest in installments as follows:
$10,000.00 on or before February 28, 2002; $15,000.00 on or before March 31, 2002; and
$50,910.20 on or before April 20, 2002.
The Maker shall have the right to prepay the principal balance and any accrued but
unpaid interest, in full or in part, at any time without prepayment penalties.
The interest shall be calculated at the above-stated interest rate and the rate of interest will
be calculated on a daily basis on the unpaid balance for the actual number of days that the
principal balance shall be outstanding, unless the maker fails to make a payment or payments as
set forth hereinabove in which case the interest will accrue at the rate of 18% per annum.
In the event the scheduled payment is not received by the Lender on or before the dates
set forth hereinabove, tbe Note shall be deemed in default. The indebtedness shall, thereaher,
become immediately due and payable without notice or demand. In addition, the indebtedness
shall become immediately due and payable upon the happening of the following events, each of
which constitutes an event of default hereunder: (a) the death of the Maker; (b) the filing of any
EXHIBIT "A'
petition under the Ba 'nkruptcy Act or any similar state or federal statute, by or against the Maker;
(c) the filing of any application for the appointment of liquidator or receiver; (d) the making ora
general assigmuent for the benefit of creditors or by the insolvency of the Maker; (e) the issuing
of any attachment or garnishment, or the making of any levy or the filing of any lien against any
real property of the Maker; (f) the ta 'king of possession of any substantial part of any real property
of the Maker at the instance of any governmental entity or authority; (g) the Maker, without the
approval of the Lender, entering into any agreement to seli, refinance or mortgage any real estate
in which the Maker has an interest; or (h) the default by Maker of any other note or obligation to
Lender.
Lender is hereby given a lien upon and a security interest in all proper~y as security for
the payment of this Note, provided, however, this Note will not be recorded unless Maker is in
default. Any failure or forbearance by Lender to exercise any right hereunder, shall not be
construed as a waiver of the fight to exercise the same or any other fights at any other time and
from time to time thereafter. The Maker waives protest of this Note.
Upon the occurrence of an event of default, the Maker hereby empowers the Prothonotary
or any attorney of any court of record within the United States or elsewhere to appear for the
Maker, with or without complaint filed, confess judgment, or series of judgments, against the
Maker in favor of the Lender for the unpaid balance of the principal debt, any other sums paid by
the Lender to or on behaif of the Maker pursuant to the terms of this Note, together with unpaid
interest thereon, costs of suit and an attorney's commission of collection often percent (I 0%) of
the total indebtedness. By entering judgment under this Note, Lender does not waive any other
legal rights that they have against the Maker and Lender hereby expressly reserves said rights.
2
The Maker waives and releases ail errors in any proceedings that may be brought on this
Note, and hereby consents that execution or executions may issue immediately on such judgment
or jud~muents, hereby ratifying and confirming all that said attorney may do by virtue hereof, and
further hereby waives inquisition and condemnation of any property levied upon by virtue of any
such execution or executions and also waives all exemption from levy and sale of any property
that now is or hereafter may be exempted by any law or statute. No single exercise of the
foregoing warrant and power to confess judgment shall be deemed to exhaust the power but the
power shall continue undiminished and may be exercised from thne to time as the Lender shall
elect until all sums due hereunder shall have been paid in full. A copy of this warrant shall be as
effective as the original thereof and shall not be necessary to file the original as a warrant of
attorney.
THIS NOTE REPRESENTS A BUSINESS OBLIGATION.
This obligation shall bind the Maker, their heirs, executors, administrators, legal
representatives, successors and assigns, and the benefits hereof shall inure to Lender, its heks,
executors, administrators, legal representatives, successors and assigns. Ali payments hereunder
shall be made at such a place as may be designated by Lender in writing. The Lender may assign
its interests and rights pursuant to this Note at any time as long as Maker is provided with thirty
(30) days written notice of the effective date of any such assignment and any change in the
address to which payments are to be made. All notices required hereunder shall be in writing and
shall be sent by U.S. mall, hand or by national overnight carrier addressed to the respective party
at the address set forth above. Any party desiring change of address or facsimile number shall
make such change known in writing to the other party.
3
INWITNESS WHEREOF, the following was executed on the Z//.-L%day of ~f"czrS.
,2002.
Witness:
Fr,~-flc H. Kelly
Witness:
Karen L. Kelly /
4
RECEIPT FOR PAYMENT
Cumberland County Prothonotary,s Office
Carlisle, Pa 17013
EICHELBERGER CONSTRUCTION INC (VS)
Case Number 2002-02045
Received of PD ECI CONSTRUCTIN
BH
Total Check... % 14.50
Total Cash .... + .00
Change ........ _ .00
Receipt total. = 14.50
Receipt Date 4/26/2002
Receipt Time 11:47:06
Receipt No. 124545
KELLY FRANK ET AL
Check No. 63642
........................ Distribution Of Payment ............................
Transaction Description Payment Amount
JDMT/NOTE 9.00 CUMBERLAND CO GENERAL FUND
TAX ON NOTE .50 BUREAU OF RECEIPTS AND CONTROL
SATISFACTION 5.00 CUMBERLAND CO GENERAL FUND
14.50
VERIFICATION
I, William V. Freeman, hereby verify that I am the Chief Operating Officer of
Eichelberger Construction, Inc. and, as such, I am authorized to verify the averments of the
foregoing document are tree and correct to my personal knowledge, information and belief. I
understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904,
relating to unswom falsification to authorities.
W~ll~a~ V Freeman
EICHELBERGER
CONSTRUCTION, 1NC.,
Plaintiff
FRANK H. KELLY and
KAREN L. KELLY, husband and wife,
Defendants
: IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
No. 02 - ok~'qs' ~ 'T-~.
Civil Action
NOTICE
TO: Frank H. Kelly
You are hereby notified that on May d/~, 2002, judgment by confession was entered
against you in the sum of $57,335.80 in the above-captioned case.
DATE:
PROTHONOTARY
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
(800) 990-9108
I hereby certify that the following is the address of the Defendant stated in the Certificate
of Residence:
Frank H. Kelly
240 Poplar Street
New Cumberland, PA 17070
NOTICIA
A: Frank H. Kelly, Demandado
Por este medio sea avisado queen el dia .( ) de May de 2002, un fallo por
admision fue registrado contra usted por la contidad de $57,335.80, del caso antes escrito.
Fecha:
Protonotario
LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TI]ENNE
ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA
EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIDRECCION SE
ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR
ASISTENCIA LEGAL.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
(800) 990-9108
Por este medio certifico que lo siguiente es la direccion de demandado en el certificado de
residencia:
Frank H. Kelly
240 Poplar Street
New Cumberland, PA 17070
Thomas O.~illiams, Esquire
Attorney I.D. No. 67987
2331 Market Street
Camp Hill, PA 17011-4642
(717) 763-1383
Attorneys for Plaintiff
EICHELBERGER
CONSTRUCTION, INC.,
Plaintiff
FRANK H. KELLY and
KAREN L. KELLY, husband and wife,
Defendants
: IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
No. 02-
Civil Action
NOTICE
TO: Karen L. Kelly
You are hereby notified that on May ~/~,~ , 2002, judgment by confession was entered
against you in the sum of $57,335.80 in the above-captioned case.
DATE:
PROTHONOTARY ~"
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
(800) 990-9108
I hereby certify that the following is the address of the Defendant stated in the Certificate
of Residence:
Karen L. Kelly
240 Poplar Street
New Cumberland, PA 17070
NOTICIA
A: Karen L. Kelly, Demandado
Por este medio sea avisado queen el dia .( ) de May de 2002, un fallo por
admision rue registrado contra usted pot la contidad de $57,335.80, del easo antes escfito.
Fecha:
Protonotario
LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO T1ENNE
ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA
EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIDRECCION SE
ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR
ASISTENCIA LEGAL.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
(800) 990-9108
Por este medio certifico que lo siguiente es la direccion de demandado en el certificado de
residencia:
Karen L. Kelly
240 Poplar Street
New Cumberland, PA 17070
Thom~ams, Esquire
Attorney I.D. No. 67987
2331 Market Street
Camp Hill, PA 17011-4642
(717) 763-1383
Attorneys for Plaintiff
EICHELBERGER
CONSTRUCTION, INC.,
Plaintiff
FRANK H. KELLY and
KAREN L. KELLY, husband and wife,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
No. 02-2045
Civil Action
ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Enter the appearance for the above named defendants pursuant to the Warrant of
Attorney attached hereto.
Date: May21, 2002
Respectfully submitted,
Thdmas O. Williams, Esquire
AttomeyI.D. No. 67987
2331MarketS~e~
Camp Hill, PA 17011-4642
(717) 763-1383
Attorneys for Defendant
$75,910.20
pROMISSORY NOTE
Date: --7'arrcm~, ~'. 2002
For value received the undersigned, Prank H. Kelly and Karen L. Kelly of 240 Poplar
Avenue, New Cumberland, Pennsylvania (hereinafter referred to as "Maker"), promises to pay to
the order of Eichelberger Construction, Inc., a Pennsylvania corporation with offices at 124 West
Church Street, Dillsburg, Pennsylvania, 17019 (hereinafter referred to as Lender ),
~ ..'-.~' --I
ig ei~.ty
executors, administrators, legal representatives, successors and ass ns, the amount~f:.~ev ': '~",-4
Five Thousand Nine Hundred Ten Dollars and 20 Cents ($75,910.20), together with ir~;d~est a~___~he
rate of prime rate plus 2% per year on the unpaid balance of the principal sum until pa,~The~.2
undersigned further promises to pay the principal sum and interest in installments as follows:
$10,000.00 on or before February 28, 2002; $15,000.00 on or before March 31, 2002; and
$50,910.20 on or before April 20, 2002.
The Maker shall have the right to prepay the principal balance and any accrued but
unpaid interest, in full or in part, at any time without prepayment penalties.
The interest shall be calculated at the above-stated interest rate and the rate of interest will
be calculated ena daily basis on the unpaid balance for the actual number of days that the
principal balance shall be outstanding, unless the maker fails to make a payment or payments as
set forth hereinabove in which case the interest will accrue at the rate of 18% per annum.
In the event the scheduled payment is not received by the Lender on or before the dates
set forth hereinabove, the Note shall be deemed in default. The indebtedness shall, therea~er,
become immediately due and payable without notice or demand. In addition, the indebtedness
shall become immediately due and payable upon the happening of the follewing events, each of
which constitutes an event of default hereunder: (a) the death of the Maker; Co) the filing of any
petition under the Bankruptcy Act or any similar state or federal statute, by or against the Maker;
(c) the filing of any application for the appointment of liquidator or receiver; (d) the making of a
general assigmuent for the benefit of creditors or by the insolvency of the Maker; (e) the issuing
of any attachment or gam/shment, or the making of any levy or the filing of any lien against any
real property of the Maker; (f) the taking of possession of any substantial part of any real property
of the Maker at the instance of any governmental entity or authority; (g) the Maker, without the
approval of the Lender, entering into any agreement to seli, refinance or mortgage any real estate
in which the Maker has an interest; or (h) the default by Maker of any other note or obligation to
Lender.
Lender is hereby given a lien upon and a security interest in all property as security for
the payment of this Note, provided, however, this Note will not be recorded unless Maker is in
default. Any failure or forbearance by Lender to exercise any right hereunder, shall not be
construed as a waiver of the right to exercise the same or any other rights at any other time and
from time to time thereafter. The Maker waives protest of this Note.
Upon the occurrence of an event of default, the Maker hereby empowers the Prothonotary
or any attorney of any court of record withh~ the United States or elsewhere to appear for the
Maker, with or without complaint filed, confess judgment, or series of judgments, against the
Maker in favor of the Lender for the unpaid balance of the principal debt, any other sums paid by
the Lender to or on behalf of the Maker pursuant to the terms of this Note, together with unpaid
interest thereon, costs of suit and an attorney's commission of collection often percent (10%) of
the total indebtedness. By entering judgment under this Note, Lender does not waive any other
legal rights that they have against the Maker and Lender hereby expressly reserves said rights.
2
The Maker waives and releases all errors in any proceedings that may be brought on this
Note, and hereby consents that execution or executions may issue immediately on such judgment
or judgments, hereby ratifying and confirming ali that said attorney may do by virtue hereof, and
further hereby waives inquisition and condermaation of any property levied upon by virtue of any
such execution or executions and also waives all exemption from levy and sale of any property
that now is or hereai%er may be exempted by any law or statute. No single exercise of the
foregoing warrant and power to confess judgment shall be deemed to exhaust the power but the
power shall continue undiminished and may be exercised from time to time as the Lender shall
elect until all sums due hereunder shall have been paid in full. A copy of this warrant shall be as
effective as the original thereof and shall not be necessary to file the original as a warrant of
attorney.
TFIIS NOTE REPRESENTS A BUSINESS OBLIGATION.
This obligation shall bind the Maker, their heirs, executors, administrators, legal
representatives, successors and assigns, and the benefits hereof shall inure to Lender, its heirs,
executors, administrators, legal representatives, successors and assigns. All payments hereunder
shall be made at such a place as may be designated by Lender in writing. The Lender may assign
its interests and rights pursuant to this Note at any time as long as Maker is provided with thirty
(30) days written notice of the effective date of any such assignment and any change in the
address to wlfich payments are to be made. All notices required hereunder shall be in writing and
shall be sent by U.S. mail, hand or by national overnight carrier addressed to the respective party
at the address set forth above. ;nay party desiring change of address or facsimile number shall
make such change Icaown in writing to the other party.
3
IN WITNESS WI-IER.EOF, the following was executed on the G/--/Vhday of ~-z-/5'
,2002.
Witness:
Fr¢ H. Kelly
Witness:
Karen L. Kelly /
-~_.~
~1~ B0~, Cumbe~n~Cou.~
4
RECEIPT POR PAYMENT
Cumberland County Prothonotary,s Office
Carlisle, Pa 17013
EICHELBERGER CONSTRUCTION INC
Case Number 2002-02045
Received of PD ECI
BH
Total Check... + 14.50
Total Cash .... + .00
Change ........ _ .00
Receipt total. = 14.50
CONSTRUCTIN
........................ Distribution Of
Transaction Description Payment Amount
JDMT/NOTE 9.00
TAX ON NOTE
.50
SATISFACTION 5.00
Receipt Date 4/26/2002
Receipt Time 11:47:06
Receipt No. 124545
14.50
(VS) KELLY FRANK ET AL
Payalent
Check No. 63642
CUMBERLAND CO GENERAL FUND
BUREAU OF RECEIPTS AND CONTROL
CUMBERLAND CO GENERAL FUND
EICHELBERGER
CONSTRUCTION, INC.,
Plaintiff
FRANK H. KELLY and
KAREN L. KELLY, husband and wife,
Defendants
: 1N THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
No. 02-2045
Civil Action
CERTIFICATION OF ADDRESSES
TO THE PROTHONOTARY:
The address of the Plaintiff, judgment creditor, is 124 West Church Street, Pennsylvania,
17019, and the last known address of the Defendants, judgment debtors, is 240 Poplar Street,
New Cumberland, Pennsylvania 17070.
Date: May21, 2002
Thongs O. Williams, Esquire
Attorney I.D. No. 67987
2331 Market Street
Camp Hill, PA 17011-4642
(717) 763-1383
Attorneys for Plaintiff