HomeMy WebLinkAbout95-02651
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JOHN SACCO and
MICHELE SACCO McGAHEN,
Plaintiffs
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
DAVID N. OBENSTINE and
DAISY OBENSTINE. his wife
Defendants
CIVIL ACTION. LAW
NO. 95.2651 CIVIL TERM
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AND NOW, July 25, 1995, plaintiffs Sacco and McGahen having appeared
for a hearing together with peroonal counsel, Bruce Bratton, Esquire, and
defendants Obenstlnes having appeared with their personal counsel, Steven R.
Williams, Esquire, and the parties having reached a temporary agreement, pending
the complete resolution of the plaintiffs' Confesolon of Judgment, and defendants'
Motion to Strike and/or Open such judgment, the Court orders and directs as
follows:
1. Defendants shall pay to plaintiffs' counsel the sum of $2300, deemed to
be rental value for the use of the property, by the first day of each month hereafter,
commencing August 1, 1995.
2. Defendants shall furnish proof of comprehensive fire and liability
Insurance coverage In the amount of not less than $250.000, by furnishing such
polley to the plaintiffs' counsel by August 1, 1995, and shall maintain such
WIX, WENGER. III WEIDNER
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JOHN SACCO and MICHELE
SACCO MCGAHEN,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
No. 95-2651 CIVIL TERM
DAVID N. OBENSTINE and
DAISY OBENSTINE,
Defendants
PRAECIPE FOR LIS PENDENS
To the Prothonotary:
Please index the above-captioned action as a lis
pendens against the following propertyr
ALL THAT CERTAIN tract of land situate in
Lower Allen Township, Cumberland County,
Pennsylvania, more particularly bounded and
described as follows, to wit:
BEGINNING at a point on the east side of
Spera Drive at the corner of lands now or
formerly of M. F. Rockey, as shown in the
hereinafter mentioned SUbdivision plan;
thence along line of said lands now or
formerly of M. F. Rockey, North 51 degrees 19
minutes East, 111.38 feet to a point at the
corner of said line of lands now or formerly
of M. F. Rockey and other lands now or
formerly of Morris Kranzel, designated as Lot
Number 1, as shown in the hereinafter
mentioned subdivision plan; thence along line
of said Lot Number 1, South 41 degrees 30
minutes East, 131.93 feet to a point on line
of other lands now or formerly of .Morris
Kranzel as shown in the hereinafter mentioned
SUbdivision plan; thence along line of said
other lands of Morris Kranzel and continuing
along line of lands now or formerly of
Charles KOhlhaas, as shown in the hereinafter
mentioned subdivision plan, South 41 degrees
55 minutes West 331.93 feet to a point on the
corner of said lands now or formerly of
Charles Kohlhaas and Spera Drive; thence
along Spera Drive North 10 degrees 8 minutes
West, 163.66 feet to a point on the East side
of Spera Drive at the corner of lands now or
formerly of M. F. Ilockey aforesaid.
. ,
BEING Lot Number 2 in the final sUbdivision
plan for Morris Kranzel, dated August 31,
1984 and recorded in the Recorder's Office in
and for Cumberland County, in Plan Book 46,
page 103.
And commonly known as 2238 Gettysburg Road,
camp Hill, Cumberland County, Pennsylvania
11011.
I hereby certify that thie action affects title to or
other interest in the above-described real property.
Respectfully Submitted,
Datel /./.../,;<(
WIX, WENGER & WEIDNER
By. A L ~)I~I -
6tev~n R. Williams, I.D.162051
508 North Second street
Post Office Box 845
HarriSburg, PA 11108-0845
(111) 234-4182
ObtnItln,LI,-.awa
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JOHN SACCO and MICHELE SACCO I
McGAHEN,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. q, J~ ~I C" dt.t,.....
Plaintiffs
v.
DAVID N. OBENSTINE and DAISY
OBENSTINE, his wife,
Dsfendants
CONFESS tON OF JUDGMENT IN EJECTMENT
Pursuant to the authority contained in the warrant of
attorney, a true copy of which is attached to the Complaint filed
in this action, I appear for the Defendants and confess judgment
in ejectment in favor of the Plaintiffs and against ths Defendants
for possession of the rsal property described in the Articles of
Agreement which are marked Exhibit "A" attached to the Complaint
filed in this action.
Datel
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By
11100-2106
Attorney for Defendants
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Prothonotary
Judgment entered as above,
, 1995.
JOHN SACCO and MICHELE SACCO
McGAHEN,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. il \, )t. " (~(114 T".,-
v.
DAVID N. OBENSTINE and DAISY
OBENSTINE, his wife,
Defendants
COMPLAINT IN CONFESSION OF JUDGMENT IN EJECTMENT
AND NOW come Plaintiffs John Sacco and Michele Sacco McGahen,
by their attorneys, Martsolf & Bratton, and make their Complaint
as follows I
I. Plaintiffs John Sacco and Michele Sacco McGahen are adult
individuals residing Ilnd with offices at B08 South Sevsnth Strset,
Las Vegas, Nevada 89101.
2. Defendants David N. Obenstine and Daisy Obenstine, his
wife, are adult individuals residing at 314 East Main Street,
Mechanicsburg, Cumberland County, Pennsylvania 11055.
3. Plaintiffs and Defendants entered into Articles of
Agreement dated February 15, 1992 for the installment sale by
Plaintiffs to Defendants of the real estate situate in Lower Allen
Township,
Cumberland
County,
Penn sylvan ill
and
known as
2238 Gettysburg Road, Camp Hill, Pennsylvania. The Articles of
Agreement were recorded on February 19, 1992 in the Office of the
Recorder of Deeds of Cumberland County, Pennsylvania, in
Deed Book 412, Page 215. A copy of tho original Articlee of
Agreement is attached hereto aB Exhibit "A" and made a part hereof.
4. The attached judgment has not been aBsigned.
5. Ju jgment in ejectment has nol been entered on the
attached instrument in any other jurisdiction. Judgment in
ejectment was entered in the Court of Common Pleas of Cumberland
County, Pennsylvania, on July 21, 1993 to No. 2393 Civil 1993. At
that time, default had been made by Defendants by virtue of their
sublease of part of the premises to American Basement Systems, Inc.
without the prior written consent of Plaintiffs in violation of
Paragraph 18 of the Articles of Agreement. That judgment was
satisfied on March 15, 1995.
6. Default has been made by Defendants by virtue of their
failure to make the payment of One Hundred Seventy-Five Thousand
and 00/100 Dollars ($115,000.00) that was due and owing by
Defendants to Plaintiffs on February 28, 1995 in violation of
Paragraph 2(b) of the Articles of Agreement.
1. By virtue of the foregoing default, Plaintiffs are
entitled to possession of the premises described, inter AliA, in
the Articles of Agreement which are marked Exhibit "A" attached
hereto and made a part hereof.
WHEREFORE, Plaintiffs demand judgment in ejectment for
possession of the described premises as authorized by the warrant
2
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RECORDER OF OEtO&
CUI-\RERLh~D COUNtY-rh.
ARTICLBB or AOIlUHBHT '92 fEO 19 n1~ '3 03
Tills hORUIIKHT, ...do lhl. _/-CrOI F.bruory, 1992, by .nd
bolllu" JOIIH BACCO .nd mCIIELB BACCO IIcGAIIBH, 01 LII VOSII, Ho..d. (hor.ln.ll..
nhrnd to II "B.lhr"), .nd llAVID H. OU~HST"m ond llAIBY OImHSTlNI~, hi.
",UI, of tltc:hlnlclbura, CUlnhlthlul County, rlnn.ylyenl. (hlrlln.ctlr rellrred
to II "Duytl,II).
WIT H EBB E T II,
l. DIDcrllltlon. Seller IIBreel to BIll to Du)'er In 811 ".. illI
condition tho 101l0lllnB d..crlb.d real ..t.to (he..ln.rt.. .om.tl.... rehrred
to .1 tht "premil.all),
ALL TIIAT CERTAIH tr.ct oC I.nd .ltu.te In Lower AII.n Town.hlp,
Ou..b..l.nd County. Plnn.yly.nl.. ",on pertlculerly bounded .nd
de.crlbed .. 1011011', to IIltl
DECINHINO .t e point on the ellt .Id. of Sperl Drh. .t the corner
01 l.nd. nOli or for...rly of H. r. Rock.y. .. .hown In the h.r.ln.ft.r,
..entloned .ubdlvl.lon. phn, thence e10nl lIno 01 IIld I.nd. nOli
or formerly of H. r. Rockoy, Horth SI de,reo. 19 minute. B..t,
117.3S foet to. point .t tho cornor of ..Id Ilno of'l.nd. nOli
or formerly of H. r. Rockoy .nd oth.r I.nd. now or for..erly 01
Horrl. Krenlll, d,.I,n.tod II Lot Humber I, II .hown In the herein-
I/ter ...ntlon.d .ubdlYI.lon phn, th.nco .Ion, lIn. oC uld Lot
Nu..ber I. Bouth 41 de,r.oe 30 minute. E..t, 131.93 Ceet to e point
on line of oth.. I.nde now or for....ly oC 1I0rrle Krenlll II ehown
In tho henlnl/ter mintloned .ubdlvl.lon pl.nl th.nce .10'" 11"0
01 ..Id other I."de of Hotrle Kr.n.ol .nd contlnulns .Ion, Ilno
of land. now or formerly of Chlrle, Kohlh..., II .how" in tht hlr.-
In. Iter ...ntloned .ubdlYlelon pl.n. Bouth 47 desreo. SS minute.
We.l 331.93 foet to ~ point on the corner 01 eeld I.nd. now or
lor..erly 01 Ch.rl.e Kohlh.e. .nd Spere Drlye, thence .Ion, Bpor.
Drlye Harth 10 de,reoe B minute' We.t, 163.66 fe.t to . point on
tl'l 1.lt .ld, of Sperl Orlve It till corner of llnd. now or (ormerly
01 H' F. Rock.y .Iore..ld.
BElNO Lot Nu..ber 2 In the /In.1 .ubdlyl.lon plen lor 1I0ule Krenlll,
d.tod Ausu.t 31, 19B4 .nd r.corded In the necorder'. Olllce In
.nd for Cu..borl.nd County, In Plan Dook 46, p'ae 103.
nUOK H~ I'^CC 2.1.5
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Sold lot b.ln, .ubJ.ct to . 10 f..t ..wor ......nt .. ehDwn In
tho .boY.-m.ntlon.d .ubdIYI.lon pion.
Buyor IcknDwlodSoo th.t thlY hlY. fully Ind compl.t.ly In.p.ct.d tho pr..I....
.ro ..tlofled with thD cDndltlon Df tho proml... .nd l,rlO tD purch... tho
pr.mi... from S.11.r In 111 t'.. t.ll condltlon. OUYtr ..r... th.t till pr,.tl"
will b. u.ad II III lee croam bUill"" and for no atller pllrpo.. unIt.. .pprovld
In writ In, by S.llor, which .pprDvol .holl not b. unr.lOon.bly wlthh.ld.
2. !.!lll. buyer ,.rell Co p'Y to Siller the lum of Two Hundred
T.n ThoulOnd (HIO,OOO.OO) ODlhro (h.roln.fter oDmotlmlO roforrod to II
thl IlprtCIII), Ilt,ebl, G' followl'
(.) Thlrty-'IY. Thouund ($35,000.00) ODlle.. upon thl
Ikecutlon of till. Alrelmant.
(b) Th. bollllc. of On. lIundrod Bev.nty-'IYI ThDuund
('175,000.00) Dolloro. tD,other with Int.rut ot tho rot. of
DlYOn .nd on.-hllf (7. 5t) perc.n~ par InnuOl on tho unpoid
bllanc.. In oqn.1 mDnthly In.t.llm.nti of On. Thouund Ninety.
Thr.. ($1,093.00) Doll.r., on ICCDunt of Int.r..t only fDr
thlrty-.lx (36) month., p.Ylbl. Dn tho I.t dlY Df ...h mDnth,
, boslnnlllB on Ih. lot doy Df tlerch, 1992, Ind tho full Imount of
tho unplld principii b.llnc. with Icoru.d Int.r..t, If .ny. on
[:),A6~ ~ ~ . 1995. If tho Boller h.. not roo.lv.d tho
full Imount 01 Iny monthly Plym.nt by tho ond 01 ton (10) oll.nd.r
d.y. .ftor tho duo dlto, thl Duyor will poy I lot. ohor,. to tho
So Ilor. Th. omount of tho cheri. wll I b. tin C1oX) I,erc.nt of
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ul . d..d br 1.11., lu Our" .. h.,.I".II.r v,uvld.d,
6. !!!J!.!l.!.!.' nu~... '.'"'' It .11 tin... tullpwll1' n\l)'''''' tntry
'nlo 110.....1011, tu nl,lnllln lh, IlUm.... 'n loud .,,,.1 IlluP" l;ondlllull Iud
nl,.1t'. hlhr ,h,ll hlVI th, IIlhl '0 mlk, ""lltction of lh. Ilrtmhl..
uI10n notlel to buyer, at luth 11m.. II lhl 111111., h..,to ,11.11 CUllIld.r
....un.lJh to dt,..",l". If lh, lam. 1ft \,,1111 ""lntatlled 'n aoad Ind rlo".r
couditlon .nd rer.lr.
lfl 111 8.1hr', uplnloll, lll, I,,,mhl' It 111)' time requirt.
IIp.lro, Soil" .h.1I lIulllr Dur" 10 m.k. .uch 111,.1", If Bur" .h.1I
1.11 to m.k. .uch "1,.1" vllhlll IlItllll (IS) d.r.. loll.. "'.Y. III hlhr'.
dlocrotlo". trllt .uch hllulI II . brllch ul thl. ^I'....."t br Duy". or
S.lhr m.y I"tlr ullon th, pu""", Ind ,uk, '\leh "'r.ln .Ild notify bu)'tr
10 V.Y th. coil thll.ul vlthl" lilt.." (I~) d.y.,
Duy" lurth" '1"11 promptly to coml,lr wIth all "qulr....nt.
of all conltllut.d ,uthorithl, ""d, all,r puylrt, Inlr)' Into 110.....10n
of the l,nM"". rllatlna to the .ll"lIn.ne. of the 11l."I.... or nClulrlnl
'''y work to b. do". th.roo" 0' I" cOII",cllon th."vllh, If notlto 01 .n,
.uch "qulnm.nt .h.1I be d.llvor.d 10 Iollor, Iollor .h.1I Ilv. notlto th."ol
10 D"y.r, .nd Duyor .h.ll Ihor'''I'O'' ~ro..~tly cOllpl, vllh .uch nqulr....nt.
.t Duyor'. "I,.nll, I( Dur" .h.1I loll 10 co..ply vllh .ny ouch "qul"...nt
vllhl" .uch tI... II II 1\ or .h.ll co".ld" rll.on.b I r .ulll do"t. Iollor ...y
do Ihlt vhlch It d..... n......ry In ordor to com~ly vllh luch "qul"m."t
.nd ...y "otl(y Duyor to p., tho co.t th.nol vllhln 1111.... (U' df'"
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.ny Jud....nt obt.ln.d by Soller under thl. ^.'.....nt, wh.ther . Jud.m.nt
lor ..on.y Dr . Judanl.nt In .J.etm.nl, .nd wh.ther .uch Jud....nt b. obt.I".d
~y cunhllion under the authority herein conferred or in .dverl. proceed Ins. .
.lId w.lv. .nd r.I.... .ny ."d .11 .r,or. In ."y vroe..dln.. wh.r.l" Judlm.nt
t. recovered by S,ll,r I,ereullder Ind rell.l. Seller Ind .ny Ittorney .ctina
lor Duy.r und.r .ny .ulhorlty h.r.11I cOIII.rr.d Iro.. .11 It.blllty th.r.lor,
Buy.r h.r.by ..r... th.t .ny Juda...nt obt.I".d by S.II.r h.r,ulld.r .h.11
b. fln.1 .nd cOII.lu.lv. .nd ..r... to t.k. 110 .pp..I, writ 01 .rror or c.rtlor-
.rl th.r.from, .nd tu III. no motion or rul. to .trlk. 011 or op.n or .t.y
tho 1X0cutlon or .ny .uch Judam.nt, Duyer lurth.r .Iro.. thlt In .ny proclldln&
whoroln Jud&,..nt 10 .onlll..d undor .uthorlty h.roln .rented by Buyor, th.
fllln. "., . 'copy 01 thl. ^.rll...nt .h.1I b. .ulllclonl .vld.nc. 01 Ih. .uthorlty
,
her. In c.nlorrod to confoll Jud....nt 011 b.h.1l 01 Duyer and It .h.1I not
b. n.c....ry to fll, tho orlatnll of thl. Alreement I .ny rule of court. CUlto.
or practlcI to the contrary nOlwlthltandlnl'
I]. 1"'0 I v.ney, Th. Inot Itutlon 0 I .ny p,o.lId In. ...Inot Duyor
under .ny In.olycn.y or bonkruptcy I.w or tho In.tltutlon 01 .ny volunt..y
t",olvlnoy or IJank,'uI'tey Ilroceldln, by buyer .ha11 conatltut' I braach of
thll Alreemant and. In euch ,vent. Lhll Alreemlnt Ihall automatically termlnat.
with th. II... .fh.t .. I"uvld.d In 1'....r.J,h II her.of, Duyer h...by w.lvlI
th. b.n."t ul .ny bonkruptcy low.,
14. Cumuhtlvl Uemedl... All)' remedy or Beller. hereby IlfOYlded
lor mlY b, pur,uld by 8ijller Ind'plndl'Itly of or lit Dddltlon to Iny otller
fll.ld)' hlrll11 Ilrovld,d ror, and Set Ilr tnay IIuflue .ny atltor or rurthat nmudy
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COU~TY OP ,-"J.(VV
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0" thll, th. ~ d.y or .!>'~I\l"'.j-' un, bolon ,", I NotifY
Pu~lIc, th. und."lsn.d olllcor, I"nonolly .ppllnd JOliN SACCO and IIICIIILI
ShCCD t1cC^"E~, know" to m. lur 1III,Ioctorlly p,ov.,,) to b. tho ".no", who..
".m.' .r. ,ub,crlb.d to tho within I",trum.nl, and .cknowl.dl.d th.t th.y
IKlcuted thl .ame [or lhe p,urpo.e. thereIn cont.ined.
IN IIITNESS III1UEDP, 1
.\'~'~" !!r~""'" ~::,~:'~ ~.~~:::. t to i
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'Ii j; 01^IIIO,r<IIY^lJh \
ill " . COur<rr (If III.MIM
,~. , ~,~,.roIIlIMUtl u"mll\
ovnuuEII . I
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hive hereunto .et my hind and notarIal ...1.
\~'CO".II;' (, ,..Q...l tnrl ,,.....--.
c::: NotifY Public
lIy Co....llllon hplrlll "I'l\ Iq~
COtlHDHIIEhLTII DP PEN~SYLVhNIA {.)
{i I .);/(. SS.
COU~TY OP I,,,rot.''''' . .
Public,
On Ihl" th. / J! day of /rhLI'R' un, bolon m., . NotifY
Ih. und."lln.d olllcor, p",on.lly ."pund DAVID N. QDllNSTlHE and
'...
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,I.'
JOHN SACCO and MICHELE SACCO
McGAHEN,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO.
v.
DAVID N. OBENSTINE and DAISY
OBENSTINE, his wife,
Defendants
TOI David N. Obenstine and Daisy Obenstine, his wife, Defendants
.J.
You are hereby notified that on Ill.. 11 , 1995,
judgment by confession in ejectment was entered against you in the
above-captioned case for the premises known as 2238 Gettysburg
Road, Camp Hill, PA 17011.
Date I .."'....1 I 7 '!--
,
I 'if:>
i~""....~ P IV-UAoL_, 1-'
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.
Court Administrator
CUMBERLAND COUNTY COURTHOUSE
4th Floor
Carlisle, PA 17013
(717) 240-6200
I hereby certify that the following is the address of the
Defendants stated in the certificate of residence I
314 East Main Str
Mechanicsburg, PA
AI David N. Obenstine and Daisy Obanstine, his wife, Defendants
Par este media seft avisado que en el dia de
, 1995, un fallo por admiBion in ejectment fus
regiBtrado contra usted par la cantidad de $XXXXXXXXX del caso
antes escrito.
Fechal
Protonotario
LLEVE ESTA DEMANDA A UN ABODAGO 1MMED1ATAMENTE. S1 NO T1ENE
ABOGADO 0 S1 NO T1ENE EL D1NERO SUF1C1ENTE DE PAGAR TAL SERV1C10,
VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OF1C1NA CUYA D1RECC10N
SE ENCUENTRA ESCR1TA ABAJO PARA AVER1GUAR DONDE SE PUEDE CONSEGUIR
AS1STENC1A LEGAL.
Court Administrator
CUMBERLAND COUNTY COURTHOUSE
4th Floor
Carlisle, PA 17013
(717) 240-6200
Par este media certifieo que 10 siguiente es la dlreccion del
demandado dicho en el certificado de residencial
314 East Main Street
Mechanicsburg, PA
"
,
3. Plaintiffs' counsel has already served a copy of this
Motion upon counsel for Defendants Obenstine via fax transmission
on September 5, 1995.
WIIEREFORE, in accordance with the Order attached heroto as
Exhibit "A", Plaintiffs respectfully move for an Order immediately
ejecting Defendants from the property at 223B Gettysburg Road, Camp
lIill, Pennsylvania 17011,
Data r .$"rh..J.. ?~:/
Respectfully submitted,
MARTS/-,/,:S {;f ,
By-!LL_ 0/
Bruce F. Bratton, Esquire
Pa. Attorney 1.0. No. 23949
2515 North Pront Street
P. O. Box 12106
Harrisburg, PA 1710B-2106
(717) 236-4241
Attorneys for Plaintiffs
2
CERTIFICATE OF SERVICE
I hereby certify that true and correct copies of the foregoing
Order/Writ of Possession and Motion for Order of Ejectment were
served via fax transmittal, (717) 234-4224, on September 5, 1995
at I' Jll
p.m., tOI
Steven R. Williams, Esquire
WIX, WENGER & WEIDNER
50B North Second Street
P. O. Box B45
Harrisburg, PA 1710B-OB45
and via fax transmittal, (717) 763-1607, on September 5, 1995 at
/:.J() t
_ 7 p.m., 01
Date !J-
Albert J. Hajjar, Esquire
1300 Market Street, Suite 8
Lemoyne, PA 170~4~ / Af
~A;I<4~ f>'" lit! j{Att"
., Bruce F. Bratton, Esquire
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JOHN SACCO and MICIIELE SACCO
MCGAHEN,
Plaintiffa/Respondents
IN TilE COURT OF COMMON PLEAS Of'
CUMBERLAND COUNTY, PENNSVLVANIA
v.
I bId
No. 95-1352 CIVIL TERM
DAVID N. OBENSTINE and
DAISV OBEIlSTINE, his wife
Defendants/Petitioners
CI VIL ACTIOIl - LAW
RULE TO SHOW CAUSE
,
. .
AND NOW this .~)'.JII day of
,
'J. '. 1. ~
, 1995, upon
consideration of the within Petition, a rule is hereby issued
upon the Plaintiffs/Respondents to show cause why the judgment by
confession issued in this case in favor of Plaintiffs and against
Defendants should not be stricken or, in the alternative, opened.
Until resolution of this matter, all proceedings to enforce the
Judgment, including but not limited to proceedings on the current
writ of execution, are hereby stayed.
Rule returnable J[1 days after service.
BV TilE COURT:
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'.
,,-..
JOHN SACCO and MICIIELE SACCO
MCGAIlEN,
Plaintiffs/Respondents
IN TilE COURT Of COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
No. 95-2651 CIVIL TERM
DAVID N. OBENSTINE and
DAISY OBENSTlNE, his wife
Defendants/Petitioners
CIVIL ACTION - LAW
PETITION TO STRI~E JUDGMENT BY CONFESSION OR. IN
THE ALTERNATIVE. TO OPEN JUDGMENT BY CONFESSION
Mm
PETITION TO STAY EXECUTION PURSUANT TO WRIT
AND NOW, come the Defendants, David B. Obenstine and Daisy
Obenstine, by and through their attorneys, Wix, Wenger & Weidner
and Albert J. Ilajjar, and file the fOllowing Petition to strike
JUdgment by Confession or, in the Alternative, to Open Judgment
by Confession and Petition to Stay Execution Pursuant to Writ,
and in support thereof states as follows:
Factual Blckaround
I. Plaintiffs/Respondents, John Sacco and Michele Sacco
\
MCGahen, are adult individuals whose address is 608 South
7th Street, Las Vegas, Nevada 69101.
2. Defendants/Petitioners, David N. Obenstine and Daisy
Obenstine, are adult individuals residing at 1101 Lindham
Court 202, Mechanicsburg, Pennsylvania 17055.
3. On or about February 15, 1992, the parties executed a
document titled Articles of Agreement (herein, the
"Agreement") which was recorded in the Cumberland County
Recorder of Deeds Office on February 19, 1992. A true and
correct copy of the Agreement is attached to Plaintiffs'
",
r
Compl8int in confession of Judgment 8nd is incorpor8tert
herein by reference. As evidenced by the Agreement
Plaintiffs agreed to sell and Defendants agreed to purchase,
for the price of $210,000 (herein, the nSales Price"),
certain real estate located in Lower Allen Township,
Pennsylvania (herein, the "Property").
4. The Sales Price was to be paid as followSl $35,000 down
payment on February 15, 1992; thirty-six monthly interest
payments, each in the amount of $1,093.00, beginning on
March I, 1992; and a balloon payment of $175,000 on February
28, 1995.
5. Pursuant to the Agreement, Defendants paid to Plaintiffs the
down payment of $35,000 on or about February 15, 1992.
6. Pursuant to the Agreement, Defendants paid to Plaintiffs
each of the required interest payments in the amount of
$1,093.00 through February 1995.
7. Defendants have tendered, but Plaintiffs have refused to
accept, interest payments since February 1995.
8. Defendants did not make the balloon payment on or before
February 28, 1995.
9. On May 17, 1995, Plaintiffs, through their counsel, filed
their complaint in confession of judgment and, on this same
day, caused the Cumberland County Prothonotary to enter a
judgment by confession for possession of the Property
(herein, the " May JUdgment") .
- 2 -
."""'\
~.
10. On May 25, 1995, Plaintiffs filed their Praecipe for Writ of
Execution seeking possession of the Property.
11. Defendants have acted in a timely fashion in filing their
Petition, and Defendants have meritorious defenses to the
May Judgment.
Petition to strike Judqment
12. Paragraphs 1 through 11 are incorporated herein by reference
as if fully set forth.
13. Paragraph 5 of Plaintiffs' Complaint, which Plaintiffs
verified to be true and correct, states that, with the
exception of a 1993 jUdgment, no judgment in ejectment has
been entered against Defendants on the Agreement in this or
any other jurisdiction.
14. Paragraph 5 of Plaintiffs' complaint is false, and
Plaintiffs know it to be false.
15. On March 15, 1995, Plaintiffs, through their prior counsel,
flIed a complaint in confession of judgment for ejectment
and, on this same day, caused the cumberland county
Prothonotary to enter a judgment by confession for
possession of the Property (herein, the" March JUdgment").
16. on March 15, 1995, Plaintiffs filed a Praecipe for Writ of
Execution on the March Judgment seeking possession of the
Property.
17. On March 22, 1995, Defendants filed their Petition to strike
Judgment by Confesuion or, in the Alternative, to Open
- 3 -
-.
JUdgment by Confession and Petition to stay EKecution
Pursuant to Writ, with regard to the March Judgment. On or
about March 22, 1995, the Honorable Judge Kevin A. Hess
signed a Rule to show Cause issued to the Plaintiffs.
18. Plaintiffs have never answered Defendants' Petition, and
Defendants' Petition is currently pending.
19. The March Judgment was still of record when Plaintiffs filed
the May Judgment, and the March Judgment is still
unsatisfied and of record as of the date of this Petition.
20. Plaintiffs' complaint with regard to the May Judgment does
not include a statement of any assignment of the Agreement
as required by Pa.R.civ.P No. 2952(c).
21. Defendants received no notice of the May Judgment until June
2, 1995, when their counsel requested and received from
Plaintiffs' counsel a copy of same.
22. Plaintiffs had no authority to have the May Judgment entered
against Defendants, and the May Judgment is null and void
ahd of no legal effect.
23. There exist on the record of this case such defects as to
require the striking off of the judgment.
24. The filing of the May Judgment, when they knew that the
March Judgment is being disputed, constitutes dilatory,
vexatious, obdurate, arbitrary and/or bad faith conduct by
Plaintiffs.
- 4 -
"''''-\
-
25. In the preparation, liling and litigating of this Petition,
Defendants have incurred and will continue to incur
attorneys' fees.
26. Pursuant to 42 l'a.C.S. S250J ('1) and (9), Plaintiffs are
liable to Defendants lor Defendants allO/-neys' fevs.
WHEREfORE, Defendants ,-espectrully rElquest that this
Honorable Court strike the JUdgment in this case because it is
null and void and of no legal of feet and because it was
improvidently entered, award Defendants their attorneys' fee.
associated with the preparation, filing and litigating of this
Petition, and grant such other relief as this Court deems just
and appropriate.
Petition to open Jud~
27. Paragraphs 1 through 26 are incorporated by reference herein
as if fully set forth.
28. Defendants were unable to obtain financing necessary to make
,
the balloon payment.
29. Defendants believe and therefore aver that they have located
a prospective purchaser who is ready, willing and able to
buy the Property.
30. If a purchaser buys the I'roperty, Defendants believe and
therefore aver that they would be able to pay the balloon
payment.
31. Time is not of the I!ssl!nce in the lI<Jreemen!, wh i eh was
ctrafted by Plaintiffs 01- their agents, and thua, nolandante
- IJ -
.-
,
.-
are entitled to a reasonable timo period within which to
obtain the necessary financing or cash and to settle on the
sale of the Property.
32. Defendants have already paid to Plaintiffs the approximate
sum of $74,348.00 pursuant to the Agreement.
33. Defendants would be able to make the balloun payment
promptly if they are able to provide the prospect a fee
simple deed.
34. To enable Plaintiffs to now regain possession of the
Property in the enforcement of the May Judgment would allow
Plaintiffs to reap an unfair and inequitable profit and
would pose an undue hardship on Defendants, who have at all
times acted reasonably and in good faith.
35. To date, Defendants have acted reasonably and in a
reasonable time period in their efforts to obtain the
requisite financing or cash to pay the balloon payment.
36. Because Defendants have acted promptly and have shown that
t~ey have meritorious defenses to the May Judgment, the May
Judgment should he opened.
WIlERErOIlt:, IJetendantli respectfully request that this
Ilonorable Court open the jUdlJment by confession issued in thi.
case, stay all I'roceedings to enforce said judgment and grant
Iluch other relief as this Court deems jUllt and appropriate.
- f} ...
rn lUlm.J..lLQntl...l1.Y~m.t.nl;
37. Paragraphs 1 through )1> are incorporated by reference herein
as if fully set forth.
)8. Pursuant to PartHJraph 18 of the Agreement, Ilefendants were
entitled to lease lIw Propel-ty upon Obtaining the prior
written consent of Plaintiffs.
39. Defendants were unable to obtain financing necessary to make
the balloon paymel,t becauso their was insufficient cash flow
associated with the Property.
40. In or after february 199~, Defendants located a prospective
tenant who was ready, willing and able to occupy a portion
of the Property.
41. If that prospective tenant had moved into the Property and
began paying rent, n~fcndantB believe and therefore aver
that there would have been sufficient cash flow to obtain
the necessary financing to make the balloon payment.
42. Defendants were unable to lease a portion of the Property
because Plaintiffs unreasonably withheld their consent to
allow l1efendantE to so lease the Property.
4). plaintiffa hlltl nn hnJ>lll'd ttuly 10 'tual fairly and in good
faith in granl In') consent to allow Defendants to lease 1111
or a pOl t Ion of the l'roJ>l'lty,
44, I'hlntiffB IJI('llched 111<,1 duty wh(,n they ul1l-eal>onably and in
bad faith wllhlll'ld "'111 LOnl'l'nl.
- "I -
,....
45. Defendante have already paid to Plnintlf/e the approxilllate
SUIIl of $74,J48.00 pursuant to the Agreement.
46. Defendants would have been able to lIlake the balloon paYlllent
in a prolllpt lIlanner if Plaintiffs hnd not unreasonably and in
bad faith withheld their consent to allow Defendants to
lease the Property.
47. It was Plaintiffs' wrongful and unfair conduct which has
caused Defendants to be unable to obtain sufficient
financing to lIlake the balloon paYlllent.
48. To enable Plaintiffs to now regain possession of the
Property in the enforcelllent of the May Judglllent would allow
Plaintiffs to reap an unfair and inequitable profit and
would poso an unduo hardship on Defendants, who have at all
tillles acted reasonably and in good faith.
49. Tillle is not of the essence in the Agreelllent, which was
drafted by Plaintiffs or their agents, and thus, Defendants
are entitled to a reasonable time period within which to
obtain the necessary financing or cash and to settle on the
sale of the Property.
50. '1'0 date, Defendantu have acted reasonably llnd in a
reasonable tillle period in their efforts tu obtain the
requhdte financing or cash to pay thl! balloon payment.
51. 8ecause Defendants have acted prolllptly and have shown that
they have lIleritorious defenses to the May Judgment, the May
Judglllent shou 1 d Iw opened.
- II -
-,
,.....
WIIERErOIlE, lJe-fendants respectfully re-quest that this
lIonorable Courl open the judgment h~' eonfe-ssion issued in this
case, stay all proCl,(>ding6 to C'nfU1TE' said judgment 8nd gl'ant
such othel' reI ief 86 this Court deems jUflt and appropriate.
I'.lliUgIL!ILQRln .J11Wimu.t
52. Paragrapha 1 through 51 are incorporated herein by reference
as if fully set forth.
53. The Oefendllnts believe and therefore aver that the May
JUdgment should be opened for the following reasonSl
(a) The confession of judgment procedures utilized by
Plaintiffs are in derogation of Pennsylvania and United
Btates constitutional law In that there has been II
denial of due process.
(b) The execution procedures that Plaintiffs are attempting
to utilize are In derogation of Pennsylvania and United
Btates constitutional 18w In that t1lere has been a
denial of due process.
(e) Buch other defenses as may become known to Oefendantll
durllHj the pendency of thlll mattel.
WIIEIUTOIlL, Defendants resl'l,,'tfully request that this
lIonorable Courl 1I1'I"n the judcJmNlt h~' ('onfesslon issued in this
case, Iltay all pl()('eedltHJs to enfoll'l.! veld judqn,ent and grant
lIuch other relief liB this Court dellmll JU&t and appropriate.
.. (J -
-,
,-
JOliN SACCO and MICIIELE SACCO
MCGAIlEN,
Plaintiffs/Respondents
IN TilE COURT OF COMMON PLEAS OF
CUMBERl~ND COUNTY, PENNSYLVANIA
v.
No. 95-1352 CIVIL TERM
DAVID N. OBENSTINE and
DAISY OBENSTINE, his wife
Defendants/Petitioners
CIVIL ACTION - LAW
CERTIFICATE OF SERVICE
I hereby certify that the foregoing Petition was sent
by first class, postage prepaid mail this day to the followingl
F.R. Martsolf, Esquire
Martsolf & Bratton
2515 North Front street
Harrisburg, p' 17110
& WEIDNER
;~~~ 1. klL~
R. Williams, 1.0.162051
rth Second street
P.O. Box 845
Harrisburg, PA 17108-0845
(717) 234-4182
DATE I
(,lrJ/0('
Defendants were in default under the Agreement for failing to pay
the $175,000.00 balloon payment on Fsbruary 26, 1995.
6. Admitted.
9. Admitted.
10. Admitted.
11. Denied. Defendante lack any meritorious defenses to the
May judgment.
Plaintiff.' R..aOD.e to Petition to Strike Judo..nt
12. Plaintiffs' responses to Paragraphs 1 through 11 are
incorporated herein by reference as if fully set forth.
13. Admitted. Plaintiffs believe and therefore aver that
their counsel, through scrivener's error or oversight, neglected
to allege the existence of a prior judgment entered on March 15,
1995 by Plaintiffs' prior counsel.
14. Admitted in part and denied in part. Plaintiffs admit
that Paragraph 5 of their Complaint in Confession of Judgment is
inaccurate with respect to the entry of a judgment by confession
which their prior counsel filed on March 15, 1995. If relevant,
Plaintiffs shall move to amend their Complaint at the appropriate
time. Furthermore, Plaintiffs' response to Paragraph 13 is
incorporated herein by reference as if fully set forth.
15. Admitted.
16. Admitted.
17. Admitted.
2
lB. Admitted in part end denied in part. Plaintiffs admit
that, upon the advice of prior counsel, they have not responded to
Defendants' Petition to Strike Judgment by Confession or, in the
Alternative, to Open Judgment by Confession and Petition to Stay
Execution Pursuant to Writ filed on March 22, 1995. Paragraph 1B
is denied to the extent that Defendants allegs or are attempting
to allege that the March Petition bars Plaintiffs from filing
successive actions to confess judgment against Defendants. To the
contrary, Paragraph 10 of the Agreement provides, in pertinent
part, that the authority to confess judgment "shall not be
exhausted by one exercise thereof, but judgment may be confessed
as aforesaid from time to time
"
,.. .
19. Admitted in part and denied in part. Plaintiffs admit
that the March judgment is still unsatisfied of record I howover,
Paragraph 19 is denied to the extent that Defendants allege or are
attempting to allege that an unsatisfied judgment of record bars
Plaintiffs from confessing judgment in a subsequent action. To the
contrary, Paragraph 10 of the Agreement provides, in pertinent
part, that the authority to confess judgment "shall not be
exhausted by one exercise thereof, but judgment may be confessed
as aforesaid from time to time
"
... .
20. Admitted in part and denied in part. While Plaintiffs
admit that the Complaint is silent with regard to a statement of
any assignment
of
the Agreement,
plaintiffs deny
that
3
Pa. R.C.P. 2952(c) requiree them to allege an assignment in their
Complaint when, in fact, the Agreement was never assigned.
21.
Denied.
The Prothonotary of Cumberland County mailed
notice of entry of judgment by confession to Defendants on May 17,
1995 at their last-known address, 314 East Main Street,
Mechanicsburg, Cumberland County, Pennsylvania 17055.
22. Denied. Paragraph 22 states a conclusion of law to which
no response is required. To the extent a response is required, and
by way of denial, Paragraph 10 of the Agreement provides, in
pertinent part, that the authority to confess judgment "shall not
be exhausted by one exercise thereof, but judgment may be confessed
as aforesaid from time to time
"
... .
23. Denied. Paragraph 23 states a conclusion of law to which
no response is required.
To the extent that a response is
required, no defects exist on the record as to require the striking
off of the judgment by confession entered against Defendants on
May 17, 1995.
24. Denied. Pleintiffs expressly deny that the filing of the
May judgment constitutes dilatory, vexatious, obdurate, arbitrary
and/or bad-faith conduct. To the contrary, the Agreement provides
that Plaintiffs' authority to confese judgment is not exhausted by
one exercise thereof and that judgment may be confessed "from time
to time". Furthermore, all actions taken by Plaintiffs were done
in accordance with the Agreement and are lawful and proper
exercises of Plaintiffs' rights as set forth in the Agreement.
4
Plaintiffs believe and therefore aver that Defendants' dispute of
the instant action constitutes dilatory, vexatious, obdurate,
arbitrary and/or bad-faith conduct since the prior March judgment
is not relevant, and the Defendants could, by Motion to Make Rule
Absolute, cause the March judgment to be stricken.
25. Denied. Plaintiffs are without sufficient knowledge or
information to form a belief as to the truth of the allegation
contained in Paragraph 25, and the same is therefore denied. Proof
thereof is demanded at the trial of this cause if relevant.
26. Denied. Paragraph 26 constitutes a conclusion of law to
which no response is required. To the extent that a response is
required, all such allegations are denied.
WHEREFORE, Plaintiffs respectfully request that Defendants'
Petition To Strike Judgment By Confession be denied.
Pl.i.tiff.' R..DO... to P.titio. to OD.. Jud~.t
27. Plaintiffs' responses to Paragraphs 1 through 26 are
incorporated by reference herein as if fully set forth.
28. Denied. Plaintiffs are without knowledge and information
sufficient to form a belief as to the truth of the allegation.
contained in Paragraph 28, and the same are therefore denied.
Proof thereof is demanded at the trial of this cause if relevant.
In further denial, Defendants have admitted that they are in breach
of the Agreement, and, therefore, any alleged reasons for such
breach are irrelevant.
5
29. Denied. Plaintiffs are without knowledge and information
sufficient to form a belief as to the truth of the allegations
contained in Paragraph 29, and the same are therefore denied.
Proof thereof is demanded at the trial of this cause if relevant.
In further denial, Defendants have admitted that they are in breach
of the Agreement, and, therefore, any alleged reasons for such
breach are irrelevant.
30. Denied. Defendants have admitted their own default under
the terms of the Agreement, and, therefore, the Defendants'
averment that they would be able to pay the balloon payment if a
purchaser bought the Property is irrelevant.
31. Denied. paragraph 31 states a conclusion of law to which
no response is rsquired. To the extent a response is required, and
by way of further denial, Defendants have admitted that they have
defaulted under the terms of the Agreement by failing to make the
balloon payment on or before February 28, 1995. Without admitting
the relevance and without admitting that an alleged right to extend
time of performance exists, Plaintiffs submit four months after the
date on which performance was to be completed does not constitute
a "reasonable" time.
32. It is admitted that Defendants paid $35,000.00 a.
downpayment required by the Agreement and that they paid $1,093.00
as interest for each month through February of 1995, which said
sums, in total, constitute less than the fair rental value of the
Property for such three-year period.
6
33. Denied. Plaintiffs are without sufficient knowledge or
information to form a belief as to the truth of whether Defendants
would be able to pay the principal balance of $175,000.00 if they
were able to provide a fee simple deed to a prospective purchaser,
and the same is therefore denied. Proof thereof is demanded at the
trial of this cause if relevant. Furthermore, Defendants have
never advised Plaintiffs when they would pay the balloon payment,
never advised Plaintiffs as to the identity of any prospective
purchaser and never provided Plaintiffs with any alleged purchase
documsnts or written offers. Plaintiffs believe and therefore aver
that Defendants' allegation that a prospective purchaser exists is
solely intended to delay Plaintiffs' efforts to execute upon ths
confession of judgment and regain possession of the Property.
34. Denisd. It is expressly denied that Plaintiffs would
reap an unfair and inequitable profit and that Defendants would
suffer undue hardship if possession were granted. To the contrary,
Plaintiffs believe and therefore aver that Defendants have used the
Property for their own business purpose, to wit: the operation of
their business known as "Rainbow Ice Cream" during the term of the
Agreement and have also collected rents by leasing the Property,
or parts thereof, to various third parties during the three-year
term of the Agreement. It is also expressly denied that Defendants
have at all times acted in good faith. To the contrary, Plaintiffs
believe and aver that Defendants have willfully ignored the terms
of the Agreement by leasing and continuing to lease the Property
7
without Plaintiffs' required consent and by remaining in possession
of the Property while in default.
35. Denied. It is denied that Defendants have acted
reasonably or in a timely manner in their efforts to obtain
financing to pay the balloon payment. To the contrary I the
Agreement explicitly sets forth a epecific time in which to
perform, which deadline has long expired. Furthermore, without
admitting the relevance of the a llegation of Paragraph 35, and
without admitting that an alleged right to extend time of
performance under the Agreement exists, Plaintiffs believe and
therefore aver four months after the date on which performance was
to be completed does not constitute a reasonable time.
36. Denied. Paragraph 36 states a conclusion of law to which
no response is required. To the extent that a response is
required, all allegations are denied.
WHEREFORE, Plaintiffs respectfully request that this Honorable
Court deny Defendants' Petition to Open Judgment and Petition to
Stay Execution Pursuant to Writ.
Plaintiff.' Ralnon.. to P.tition to Onen Jud9..nt
37. Plaintiffs' responses to Paragraphs 1 through 36 are
incorporated by reference herein as if fully set forth.
38. Admitted. By way of further answer, however, Plaintiffs'
written consent to lease was never requssted or ever given.
39. Denied. Plaintiffs are without knowledge and information
sufficient to form a belief aD to the truth of the averment
o
contained in Paragraph 39, and the same is thorefore denied. Proof
thereof io demanded at the trial of thio cause if relevant.
40. Denied. Plaintiffs are without sufficient knowledge or
information to form a bellllf as to the truth of the averment
contained in Paragraph 40, and the same is thsrefore denied. Proof
thereof is demanded at the trial of this cause if relevant. In
further denial, Defendants have admitted that they have defaulted
under the Agreement, and, therefore, the allegation is irrelevant.
Furthermore, Plaintiffs aver that Defendants never advised
Plaintiffs as to the identity of the prospsctive tenant and never
lubmitted a written request to Plaintiffs to approve any lease.
41. Denied. Defendants have admitted their own default under
the Agreement, and, therefore, the allegations and speculations of
Paragraph 41 are irrelevant.
42. Denied. Plllintiffs deny that they unreasonably withheld
their consent to a llow Defendants to lease the property. To the
contrary, Plaintiffs reasonably withheld consent to leasing the
Property because Defendants never advised Plaintiffs as to the
identity of any prospective tenant or tenenta and never submitted
any written request to Plaintiffs to approve any leaae or the term.
of any such alleged leaeo.
43. Denied. Paragraph 43 states a conclusion of law to which
no leeponee ill required. To t he extent that a respanBll 11
required, Plalntlffu deny tha! they breached any duty by
wlthholdllHJ their conuen! to /lllow DtltolHlllllta to lease the
IJ
Property. To the contrary, Plaintiffs reasonably withheld consent
to leasing ths Property because Defendants never advised Plaintiffs
as to the identity of any proepective tenant or tenants and nevsr
submitted any written request to Plaintiffll to approve any lease
or the terms of any such alleged lease.
44. Denied. Paragraph 44 states a conclusion of law to which
no response is required. To the extent a responee is required,
Plaintiffs incorporate the response set forth in Paragraph 43.
45. It is admitted that Defendants paid $35,000.00 as
downpayment required by the Agreement and that they paid $1,093.00
as interest for each month through February of 1995, which said
BumB, in total, constitute lee8 than the fair rental value of the
Property for Buch three-year period.
46. Denied. Plaintiffs' responee to Paragraph 42 is
incorporated herein by reference as if fully set forth.
47. Denied. Plaintiffs deny that they at any time acted
wrongfully or in bad faith. To the contrary, Defendants have
admitted their breach of the terms of the Agreement.
48. Denied. It ill expressly c1enied that Plaintiff. would
reep an unfair and inequitable profit and that Defendant. would
luffer undue hardehip if POBsBBsion were yranted to Plaintiff'.
To the contrary, Plaintiffe believe Bnd therefore aver that the
amouots paid by Defendants constitute less than the fair rental
value of the Property /Ind thllt Defend/lnts have collected rentl by
lea.ing the Property to VIHioUfl third plHtlofl durinlJ tho three-year
10
term under the Agreement. It is aho expresllly denied that
Defendants have, at all times, acted in good faithl to the
contrery, Pl"intiffs believe and therefore aver that Defendants
have willfully ignored the terms of the Al]reement by leasing and
continUing to leaoe the Property without the Plaintiffs' required
consent and by remaining in posoession of the Property while in
default.
411. Denied, Paragraph 49 litates a eoncluliion of law to which
no response is required, and the same Is therefore denied. To the
extent a response is requ I red, the Agreement, as executed by
Defendants who were represented by legal counsel, explicitly
requires payment of the principal on February 28, lUll!).
Furthermore, Defendants have admitted that they have defaulted
under the Agreement, which terms and conditions are not subject to
unilateral extension. Also, without admitting the relevance and
without admitting that such an alleged dght to extend time of
performance exists, Plaintiffs believe /lnd therefore aver thllt four
mont.hs after the date on which performanctl was to be completed do..
not con.tttute a reasonable time.
50. Denied. Paragraph 'ill Iltate!! a cOJll'lusion of law to Which
no response i8 requlr"ed, /lnd the 8/1mo Is thorsfore denied. To the
extent ft fesponse Ie required, It 10 denied that Defendllllts have
acted r8l18onably or In a timely manner In thtlir effor"l& to ubtllin
tinancing or cftllh to (lilY t.he hill 10011 pllymol1t. '1'0 tho contrftr'y, the
^lJreement explicitly Bst II IOJ t h /I SptlCIt lc IJmo In whJch to pertor"m
11
and Defendants have admitted that they have defaulted by failing
to perform within that time pedod. Furthermore, the time for
pedormance under the Agreement is not subject to unilateral
exten.ion. Without admitting the relevance of the allegations of
Paragraph 50, and without admitting that such an alleged right to
extend time of performance exists, Plaintiffs believe and therefore
aver that four months after the date on which performance was to
be completed does not constitute a reasonable time.
51. Denied. Paragraph 51 states a conclusion of law to which
no reaponse is required, and the same is therefore denied. To the
extent a response is required, all allegations are denied.
Defendanta have no defenses whatsoever and have admitted their own
breach and default.
WIiEREFORE, Plaintiffs respectfully request that this Iionorable
Court deny Defendants' Petition to Open Judgment and Petition to
Stay Execution Pursuant to Writ.
.lalntiff.' R"Don.. to ..tltlon to OD.n Juda..nt
52. Plaintiffe' responses to Paragraphs 1 through 51 are
incorporated herein by reference as if fully set forth.
53. (a) Oenied. This Paragraph states a conclusion of law
to which no response is required, and the same is therefore denied.
To the extent a response Ie required, all allegations are denied.
(b) Denied. This Paragraph states a conclusion of law
to which no respunse is required, and tho same is therefore denied.
Tu the extent ft respunse ie required, all allegations are denied.
12
(c) Denied. No defensos exist to justify opening the
Hay judgment.
WHEREFORE, plaintiffs rospectfully request that this Honorable
Court deny Defendants' petition to Open Judgment lInd Petition to
stay Execution Pursuant to Writ,
Plaintiff.' Re.pon., to petition to J1Iy
I..cution pur.u_nt to Writ
54, Plaintiffs' responses to Paragraphs 1 through 53 are
incorporated herein by reference as if fully set forth.
55. Admitted.
56. Admitted.
57. Denied. Paragraph 57 statee a conclusion of law to which
no response is required, and the same is therefore denied. To the
extent a response is required, all allegations are denied.
WHEREFORE, Plaintiffs respectfully request that this Honorable
Court deny Defendants' Petition to Stay Execution Pursuant to Writ,
Date
~/zt /ft'
HARTSOLF
By
F.
17108-2106
Attorneys forPlaintiffs/Respondent8
13
VERIFICAfIOl:j I
I
I verify that the statements made it the attached Plaintiffs'
Response To Defendants' petition To Str ke Judgment By Confession
Or, In The Alternative, To Open Judgment By Confession And Petition
To Stay Execution Pursuant To Writ plea1ing are true and correct,
partially upon personal knowledge and partially upon my beliet; to
the extent language in the attached IPleading is that of mt
attorneys, I have rslied upon my a~torneye in making thi.
Verification. I understand that falae It.tomenta herein are mad,
subject to the penalties of 18 PII. C.S.'
un.worn falsification to aut
Date
---
4904 relating tf
M. Sacco
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JOliN SACCO and MICHELE SACCO
MCGAIIEN,
Plaintiffs/Respondents
IN TilE COUR1' OF COMMON PLEAS OF
CtJM/lERl.ANlJ COllN1'Y, PENNSYINANIA
v.
No. 95-2651 CIVIL TERM
DAVID N. OOENSTINE and
DAISY O/lENSTINE, his wifo
Defendants/Petitioners
CIVIl, AC'I'ION - LAW
PETITION TO STRIKE JUDGMENT BY CONFESSION OR. IN
THE ALTERNATIVB, TO OPEN JUDGMENT BY CONFESSION
Mfil
flfITION~O STAY EXE~TION PURSUANT TO WRIT
AND NOW, come the Defendants, David O. Obenstine and Daisy
Obenstine, by and through their attorneys, Wix, Wenger & Weidner
and Albert J. lIajjar, and file the following Petition to Strike
JUdgment by Confession or, in the Alternative, to Open JUdgment
by Confession and Petition to stay Execution Pursuant to Writ,
and in support thereof states as follows:
Factual Baokaround
1. Plaintiffs/Respondents, John Sacco and Michele Sacco
McGahen, are adult individuals whose address is 808 South
7th Street, Las Vegas, Nevada 89101.
2. Defendants/Petitioners, David N. Obenstine and Daisy
Obenstine, are adult individuals residing at 1101 Lindham
Court 202, Mechanlcsburg, Pennsylvania 1'1055.
3. On or about February 15, 1992, the parties executed a
document titled Articles of Agreement (herein, the
"Agreement") which was recorded in the Cumberland County
Recorder of Deeds Office on February 19, 1992. A true and
correct copy of the Agreement ie attached to Plaintiffs'
.....'....,~.""~.':"'t!1 ......-IIld\Jl> _~
JOHN SACCO and
MICHELE SACCO McGAHAN,
Plaintiffs
V.
I IN THE COURT OF COMMON PLEAS OF
I CUMBERLAND COUNTY, PENNSYLVANIA
I
I
l CIVIL ACTION - LAW
l NO. 95-2651 CIVIL TERM
I
I
DAVID N. OBENSTINE and
DAISY OBENSTINE, his wife,
Defendants
MOTION FOR ORDER OF EJECTMENT
Plaintiffs John Sacco and Michsle Sacco McGahan, acting
through their counsel, Bruce F. Bratton, Esquire, respectively move
this Honorable Court for an order ejecting Defendants from the
property at 2238 Gettysburg Road, Camp Hill, Pennsylvania 17011
and, in support thereof, aver as followSl
1. By order of July 25, 1995, this Honorable Court directed
Defendants David N. Obenstine and Daisy Obenstine to pay to
Plaintiffs' counsel the sum of $2,300.00 on or before the first day
of each month commencing August 1, 1995 and to furnish proof of
comprehensive fire and liability insurancs coverage on or before
such date, all as set forth on the true and correct copy of the
Order Of Court, dated July 25, 1995, attached hereto and marked as
Exhibit "A".
2. Dsfendants have failed to pay the amount when and as
required under the Court's order attached hereto as Exhibit "A" and
have failed to provide proof of insurance.
3. Plainiffs' counsel has already served a copy of this
motion upon counsel for Defendants Obenstine via fax transmission
on August 2, 1995.
WHEREFORE, in accordance with the Order attached hereto as
Exhibit "A", Plaintiffs respectfully move for an ordsr ejscting
Defendants from the property at 2238 Gettysburg Road, Camp Hill,
Pennsylvania 17011.
Date ~ jJ~1- 9r
Bruce F. Bratton, Esqu re
Attorney 1.0. .23949
2515 North Front Street
P.O. Box 12106
Harrisburg, PA 17108-2106
(717) 236-4241
By
Attorneys for Plaintiffs
JOHN SACCO And
MICHELE SACCO McGAHEN,
Plnlnlllls
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
DAVID N. OBENSTINE anti
DAISY OBENSTlNE, his wife
Defundants
CIVIL ACTION. LAW
NO, 05.2051 CIVIL TERM
lti.Rt;LMQJ1QtU:!LOJSSQ~AY
OB~QUBI
AND NOW, July 25, 1095, plaintiffs Sacco and McGahen having appeared
for a hearing together with personal counsel, Bruce Brallon, Esquire, and
defendants Obensllnes having appeared with their personal counsel, Steven R.
Williams, Esquire, and the parlles having reached a temporary agreement, pending
the complete resolullon of the pial nil lis' Confession of Judgment, and defendants'
Mallon to Strike and/or Open such Judgment, the Court orderfl and dllects as
follows:
1. Defendants shall pay to pia/nil lis' counsel the sum of $2300, deemed to
he rental value for the use of the property, by the first day of each month hereafter,
commencing August 1, 1005.
2. Defendanls shall furnish proof of comprehensive fire and liability
Insurance coverago In tho afllount of nolless than $250,000, by furnishing such
pollGY 10 the plolnlllls' counsol by August 1, 1005, and shall maintain such
EXIl/1l1 T "^"
Inouranco unllllhls mallor Is resolved,
3. Dolondants ('\10 dlroGtod to completo Iholr depositions within II110en days
olloday's dale,
4. Upon failure 01 dolondants 10 fuUIII Iho above condlllons, II Is tho
underslandlng ollhe Court Elnd delense counsel Ihal plalnlllls' counsel will be
proceeding 10 Court wllh a Mollon 10 Ejecl Iho delendanls lrom Ihe property.
By Ihe Court,
(]ruce Brallan, Esquire
For Ihe Plalnllffs
J.
G1even R. WIlliams, Esquire
For Ihe Defendanls
EXllI1I1T "^"
JOHN SACCO and
MICHELE SACCO MCGAHAN,
Plaintiffs
I IN THE COURT OF COMMON PLEAS OF
I CUMBERLAND COUNTY, PENNSYLVANIA
I
I
I CIVIL ACTION - LAW
NO. 95-2651 CIVIL TERM
V.
DAVID N. OBENSTINE and
DAISY OBENSTINE, his wife,
Defsndants
CERTIFICATE OF SERVICE
I hereby csrtify that true and correct copies of the foregoing
Order/Writ of Possession and Motion for Order of Ejectment were
served via Fax (717) 234-4224, on August 2, 1995 at 9:53 a.m. to:
Steven R. Williams, Esquire
WIX, WENGER & WEIDNER
508 North Second Strest
Harrisburg, PA 17108
And Fax transmittal (717)763-1607, on August 2, 1995 at 11154
a.m. to:
Albert J. Hajjar, Esquire
1300 Market Street, Suite 8
Lemoyne, PA 17043-1420
Date:
~ 4~~f PI'
1/
1
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By
Bruce F. Bratton, Esqu re
,
JUN ( 7 /995
) I'j
JOHN SACCO and MICHELE SACCO
HcGAHEN,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIl, ACnON - LAW
NO. 95-2651 CIVIL TERM
v.
DAVID N, OBENSTINE and DAISY
OBENSTINE, his wife,
Defendants
h. ORDER
AND NDW, thi. ;t1.-. d.y of b.
consideration of the within Motion to Dissolvo
1995, upon
Stay, it is hereby
ORDERED ANn DECREED that a hearing shall be held on such Motion at
,/
3', ,0 o'clock -f--.m., on ~.,~) __..' 1995, in Courtroom
No. 0 , Cumberland County CourthousB, One Courthouse Square,
Carlisle, Penneylvania.
BY TH
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Property titled in Plaintiffs' nome although they have admitted
default under the terms of the ArtlcleB of Agreement.
3. Defendants fUed 1'1 Petition tu Open and/or Stdke orf the
judgment entered by the Plaintiffs alleging, 1u1.&[ A110, cerl.aln
defenses but, at the same time, admitting thaI. Defendonl.o havo
failed to perform In occordance with the termo of tho Arl.lcleo at
Agreement.
4. In responDe to Defendanto' Petition, lIllo Ilonorable Court
entered a Rule upon Plaintiffo on June 5, 1995, which Rule Included
a otay of proceedings which wes entered without prior nollce to
P1l'Iintiffo.
5. By virtue of the entry of the stay, Plaintiffs are end
will continue to be denied the uss, ronts, Inotlts and enjoyment
of the Real Property although legel title to such Real Property il
and alwaYI hi'll boen in the name of Plainliffs.
6. Plaintiffs believe and therefore aver that the fair
rental value of the Real Property is approximeloly $2,300.00 per
month.
WHEREFORE,
Plaintiffo respectfully move fur an Order
dissolving the stay of execution on the judgment entered on or
about Hay 17, 1995 or, alternatively, respectfully requelt that
the stay of proceedings entered by tho Cuurt bo conditioned upon
Defendanto' peyment to Plaintiffs or Inlo Cuurt of 1'1 Dum equal to
$2,300.00 for each and every monlh frum I'obruary 28, 1995, laid lum
to be due and payablo Immedlal.ely for tho monthn commanclng with
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