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HomeMy WebLinkAbout02-3528DOCKET NUMBER Date Entered IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF LABOR & INDUSTRY to the use of the UNEMPLOYMENT COMPENSATION FUND* VS. RUSSELL S FORD INDIVIDUALLY AND T/A CC&C 209 ECHO ROAD CARLISLE PA 17013 Docket Number 3895 cIv 1992 97 3777 cIv Original Amount Due: $1,726.89 Plus additional interest, fees and costs. SUGGESTION OF NONPAYMENT AND AVERMENT OF DEFAULT AND NOW, JUNE 03, 2002 , the Commonwealth of Pennsylvania, Department of Labor and Industry to the use of the Unemployment Compensation Fund, Plaintiff-Claimant herein, suggests of record that the above claim is still due and owing to the Claimant, and avers that the above-named Defendant is still in default for nonpayment thereof. The prothonotary is directed to enter this suggestion and averment on the proper docket of said claim, and also to index it in the judgement index for the purpose of continuing the lien of said claim. 16th Floor L & I Building Harrisburg, PA 17121 SEAN F. C~ Deputy Chief Counsel for Employment Security ACCOUNT NO.: 21-13593 AD NO.: 239356 DATE: 06/03/2002 8 d PNC BANK, N.A. Executor of the Estate of WILLIAM G. MAGARO, Deceased RICHARD E. PHELAN, Plaintiff : . .' ; : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO.: 95- DEFENDANT'S AMENDED MOTION FOR A CONTINUANCE AND MOTION TO COMPEL DISCOVERY AND NOW COMES Defendant, Richard E. Phelan, by and through his counsel, Stevens & Lee, and makes the following motion for continuance and motion to compel discovery, stating in support thereof as follows: 1. Before the Court is a Petition to Fix Fair Market Value pursuant to the Deficiency Judgment Act. This hearing has already commenced, and is scheduled to reconvene on December 23, 2002 at 1:30 p.m. 2. During the prior hearing, Plaintiff introduced certain testimony from an appraiser, which testimony contradicted not only the same appraiser's earlier-tendered appraisal, but contradicted a stipulated value to which the parties stipulated-to in the earlier proceedings before auditor Samuel Andies, who's recommendation was thereafter confirmed by the Court. (The parties had stipulated that as of the date of Mr. Magaro's death the Shippensburg Real estate was worth $435,000). Plaintiffs' experts opinion of value also departs markedly from both the assessed and insured value of the property. 3. In response to PNC Bank's attempts to distance itself from this earlier stipulated value and, indeed, the earlier-tendered opinion of its same expert, Defendant intends to introduce the testimony of three individuals, two of whom have personal familiarity with the condition of the building in 1988-1990, the time period during which the Magaro-Phelan partnership purchased the building and the time of Mr. Magaro's death, i.e. the same time at SLI 315755vl/67129.001 which the parties earlier stipulated the building was worth $435,000. The other individual is a licensed appraiser, who can best respond to Plaintiffs' appraiser's testimony. 4. Obviously, now that Defendant Phelan no longer owns the building, he no longer controls access to the same, and therefore requires the consent and cooperation of the Bank in order that these witnesses view the current state of the building and thus be prepared to testify. 5. Undersigned counsel therefore directed correspondence to Plaintiff's counsel, requesting access to the building for these witnesses, and offering to accommodate the schedules of anyone concerned on Plaintiff's side, such that any inconvenience could be minimized. A true and correct copy of this correspondence is attached hereto as Exhibit "A". The undersigned also requested a full and complete copy of Plaintiffs' appraiser's report, in order to be prepared to go forward at the continued heating. As of the filing of this motion, no response whatsoever has been forthcoming from counsel for plaintiff, with regard to either permitting access to the subject building or furnishing the full appraisal report. (This adamant refusal to cooperate in any manner has become the hallmark of Plaintift~s litigation approach in this and related cases.) 6. At this juncture, it appears that the Bank intends to either simply ignore the request for access and request for the appraisal, or, perhaps, to respond with so little time remaining before the heating that the witnesses will not have any meaningful opportunity to tour the building (and, in the case of the appraiser, to do appropriate background work and prepare a report suitable for presentation to the Court). 7. Throughout the many years of the litigation of this matter and the several related cases, Defendant has never previously requested a continuance of any Court heating. 8. The instant request for a continuance would be unnecessary had PNC Bank merely responded to the request for access and for the appraisal, rather than stonewalling said request. SL1 315755vl/67129.001 9. Mindful of the Court's busy schedule, defendant submits that meaningful progress may still be made toward the disposition of this matter on the scheduled hearing date. Several witnesses' testimony can be taken and productive use may be made of this afternoon. 10. Pending access to the building by defendants final witnesses, however, defendant will not be in a position to close his case and rest. 11. Particularly where the Deficiency Judgment Act provides for a heating to determine fair market value for the protection of Defendant, Defendant believes that his request for access to the building in order to prepare his defense is appropriate, and is contemplated under the Rules of Civil Procedure and the Deficiency Judgment Act. It is Plaintiff's refusal to provide access, or even respond, that is inappropriate. 12. The undersigned has contacted counsel for Plaintiff and requested concurrence in this Motion, but such concurrence has been denied. Furthermore, Plaintiff's counsel informed the undersigned that he did respond to the request for access by letter. Neither the undersigned nor his assistant have ever seen any such correspondence, whether by fax or follow-up hard copy by mail prior to today. Additionally, the undersigned has yet to receive a full copy of Mr. Heckman's appraisal report, whether by fax, mail or otherwise. WHEREFORE, Defendant Richard E. Phelan respectfully requests that the heating presently schedule for December 23, 2002 either (a) be continued and not rescheduled until the Bank has complied with the request for access to the building and supplied a full and complete copy of any appraisal opinion to be tendered by its expert, Mark Heckman, or, (b) in the alternative, Mr. Phelan respectfully requests that the hearing record not be closed on the 23rd, but that he be pemfitted a reasonable interval of time following access to the building to present SLI 316764vl/67129.001 the testimony of the witnesses indicated. Respectfully submitted, Mark D. Bradshaw, Esquire Supreme Ct. I.D. #61975 P.O. Box 11670 Harrisburg, PA 17108-1670 (717) 561-5258 SL1 315755vl/67129.001 STEVENS & LEE A PROFESSIONAL CORPORATION P. O. Box 11670 Harrisburg, PA 17108-1670 (717) 561-5242 Fax (717) 561-5207 www.stevenslee.com December 9, 2002 Direct Dial: (717) 561-5258 Email: mdb~stevenslee.com Direct Fax: (610) 371-7362 John M. Eakin, Esquire Main & Markets Streets Mechanicsburg, PA 17055 Via Facsimile 691-3281 Re: Deficiency Hearing Dear Mr. Eakin: In preparation for the continuation of the hearing before Judge Oler on the issues relating to the deficiency judgment, I am writing to request that two witnesses who will be testifying as to the value of the real estate be permitted access to the building prior to the hearing. We will work with your schedule, or that of David Brown or anyone else to minimize any inconvenience. We require only a short (half hour to 45 minute) opportunity to view the interior of the building and its condition in preparation for the hearing. Please advise as to a convenient time for this entry upon the property at 7-13 East King Street. Please also provide me a complete copy of Mark Heckman's appraisal. Thus far I have seen only the transmittal letter without any of the supporting detail. Very truly yours, Mark D. Bradshaw MDB:alsm cc: Richard E. Phelan · Cherry Hill · Harrisburg · Reading · Scranton · Lancaster · Lehigh Valley · Valley Forge · Wilkes-Barre · Philadelphia · Wilmington 12/06/02/SL! 314094v 1/67129.001 MODE = MEMOR~ TRANSMISSION START=DEC-B9 15:39 END=DEC-OD 15:41 MILE N0.=607 STN COMM. ONE-TOUCH/ STATION NAME/TEL NO. PAGES DURATION NO. ABBR NO, 001 OK ~ 96913281 002/00~ 00:01:1~ -STEVENS LEE HARRISBURG - ~**** - ?195615234- STEVENS & LEE P. O. Box ~1670 Hatri~lm~g, PA 17108-1670 (tx:,) s~l-S2~2 P~x C/17) ~6z-u2o7 TELECOMM'LtNICATION LETTER BEFORE FAX]iN'G, PLEASE CALL PLEASE DELIVER THE FOLLOWING PAGE(S) TO: RECIPIENT GOMPANY 1. $ohn Eakin, Esquire j MESSAGE: FAX No. (717) 691-3281 PHONE NO. ACCOUNT NO.: FROM: Mark D. Bra&haw TOTAL NLrMBER OF PAGES: 2, INCLUDING COVER. DATE: December 9, 2002 IF YOU DO NOT RECEIY_E ALL OF THE ABOVE PAGES. PLEASE CALL (71.7] 561-5258 Ag SOQN AS POSSIBI',~,. ORIGINAL WILL NOT FOLLOW ORIGINAL WILL FOLLOW BY: U.S. MAIL OVERNIGHT PACKAGE HAND DELIVERY IMI~ORTANT: THIS MF.~SAGE IS INTENDED FO[( THE USE OF THE INDIVIDUA~ OR ENTITY TO WHICH iT IS ABBRES~ED, AND MAY CONTAIN INFORMATION '[NAT I$ PRIV]I. EGIgD, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE RF.,ADER OF THIS MESSAGE I$ NOT THE INTENDED RECIPIENT OR THE EMPLOYEE OR AGENT KESPON$IBLE FOR DELIVERING THE MESSAGE TO THE INTENDED RECIPIENT~ YOU ARE IIEI~gBY NOT]FLED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY TELEPHONE (COLLECT) TO ARRANGE FOR THE RETtlRN OF THE MATERIALS. THANK YOU, · Cherry Hill * Harrisburg - L~ncaZter · Lehigh Valley - Philadelphia · Reading · Scranton · Valley Forge * Wilkes-Bnrre - WiImingion CERTIFICATE OF SERVICE I, MARK D. BRADSHAW, ESQUIRE, certify that on this date, I served a certified true and correct copy of the foregoing Defendant's Answer to Petition to Fix Fair Market Value upon the following counsel of record, by depositing the same in the United States mail, postage prepaid, addressed as follows: ,a,,-d b~! 4~,:~e-5~'~,'~\e- ! John M. Eakin, Esquire Main & Market Streets Mechanicsburg, PA 17055 Mark D. Bradshaw, Esquire Date: December 18, 2002 SLI 315755vl/67129.001