HomeMy WebLinkAbout95-04940
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RICHARD H. GARRETT and
KATHLEEN J. GARRETT,
Plaintiffs
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
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v.
:
CHARLES J. BENDER, JR. and
MICHELLE BENDER,
Defendants
NO. (;~~ 'I "'/l' 6.,'.rJ '{;~,.-
:
CONFESSION OF JUDGMENT IN EJECTMENT
Pursuant to the authority contained in the warrant of
attorney contained in the Agreement of Sale, a 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 the defendants for possession of the real
property described as follows:
94 Haldeman Avenue, New Cumberland PA 17070
As more fully described in Exhibit A hereto.
LAWS, STARUCH & PISARCIK
.y,~
W. Scott Staruch, Esq.
Atty 10 23887
20 Erford Rd, Suite 215
Lemoyne, PA 17043
(717) 975-0600
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ALL THAT CERTAIN tract or parcel of land situate in the Borough
of New Cumberland, county of cumberland, and commonwealth of
pennsylvania, more particularly bounded and described as follows,
to wit:
BEGINNING at a point in the northerly right-of-way line of
Kathryn street at the dividing line between the premises herein
described and Lot No. 19 on the hereinafter mentioned plan of
lots; thence along said right-of-way line of Kathryn street along
the arc of a curve having a chord bearing of North fifty-five
(55) degrees forty-one (41) minutes forty-three (43) seconds West
and having a radius of one hundred seventy-five (175) feet for an
arc length of three and ninety-six one-hundredths (3.96) feet to
a point; thence continuing along the same North fifty-six (56)
degrees twenty (20) minutes thirty-seven (37) seconds West a
distance of one hundred three and seven one-hundredths (103.07)
feet to a point, which point is the northeasterly corner of the
intersection of Kathryn street and Haldeman Avenue; thence along
said easterly right-of-way line of Haldeman Avenue along the arc
of a curve have a chord bearing of North thirty-two (32) degrees
eleven (11) minutes twenty-two (22) seconds East and having a
radius of four hundred forty-four and forty one-hundredths
(444.40) feet for an arc length of sixty-seven and sixteen one-
hundredths (67.16) feet to a point; thence continuing along the
same North thirty-six (36) degrees thirty-one (31) minutes eight
(8) seconds East a distance of forty-six and forty-four one-
hundredths (46.44) feet to a point; thence along the premises
herein described and Lot No. 12 on the hereinafter mentioned plan
of lots south fifty-three (53) degrees twenty-eight (28) minutes
fifty-two (52) seconds East a distance of one hundred six and
fifty-six one-hundredths (106.56) feet to a point; thence along
the dividing line first above-mentioned South thirty-three (33)
degrees thirty-nine (39) minutes twenty-three (23) seconds West a
distance of one hundred eight and eighteen one-hundredths
(108.18) feet to a point, the point ftnd place of BEGINNING.
BEING Lot No. 11 on the Plan of Westover Gardens, which plan is
recorded in the Office of the Recorder of Deeds of cumberland
County, pennsylvania, in Plan Book 46, Page 126.
CONTAINING 12,000.00 square feet.
EXHIBIT l\
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RICHARD H. GARRETT and
KATHLEEN J. GARRETT,
Plaintiffs
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.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
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v.
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.
CHARLES J. BENDER, JR. and
MICHELLE BENDER,
Defendants
NO. ({)' - 'I 'i 'f <.J l:(......P t;___
COMPLAINT IN CONFESSION OF JUDGMENT
FOR EJECTMENT
1. Plaintiffs, Richard H. Garrett and Kathleen J.
Garrett, husband and wife, are adult individuals residing at 1709
Edgar Lane, Camp Hill, Cumberland County, Pennsylvania.
2. Defendants, Charles J. Bender, Jr. and Michelle
Bender, husband and wife, are adult individuals residing at 94
Haldeman Avenue, New Cumberland, Cumberland County, Pennsylvania.
3. At all time herein mentioned, plaintiffs were, and
now are, the owners in fee simple, and entitled to the possession
of, certain real property located at 94 Haldeman Avenue, New
cumberland, CUmberland County, Pennsylvania and more fully
described in Exhibit A attached hereto.
4. On or about July 24, 1993, Plaintiffs and Defendants
entered into a written Agreement of Sale (the "Agreement"), a true
and correct copy of which is attached hereto as Exhibit B, for the
installment purchase of Plaintiffs' property located at 94 Haldeman
Avenue, New CUmberland, Cumberland County, Pennsylvania.
5. Judgment on the Agreement has not been entered in any
jurisdiction.
6. Pursuant to the terms of the Agreement, Plaintiffs,
are authorized to enter judgment by confession for ejectment after
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default by Defendants.
7. Defendants are in default of the terms of the
Agreement hereinabove described, by failing and refusing to make
the monthly payments for July and August, 1995, and failing and
refusing to make the payment on principal of at least $5,000.00 on
or before July 27, 1995, after receiving notice of said default.
8.
On August 18, 1995,
plaintiffs' attorney gave
defendants written notice of their default as required by the terms
of the Agreement.
A copy of the notice is attached hereto as
Exhibit c.
9. On September 13, 1995, plaintiffs' attorney gave
defendants written notice to immediately surrender possession of
the premises and advised them of the imminent filing of this action
in the absence of their compliance.
attached hereto as Exhibit D.
A copy of the notice is
10. Defendants have failed and refused to surrender
possession of the above-described real property to plaintiffs.
11. In accordance with the terms of the Agreement,
judgment should be entered for ejectment of defendants.
WHEREFORE, Plaintiffs demand judgment in their favor and
against Defendants and for ejectment of Defendants from the
premises.
LAWS4c, STAR~C~:K
By: '~~&-~
W. ~ctt Staruch, Esq.
Atty ID 23887
20 Erford Rd, Suite 215
Lemoyne, PA 17043
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ALL THAT CERTAIN tract or parcel of land situate in the Borough
of New CUmberland, County of cumberland, and Commonwealth of
Pennsylvania, more particularly bounded and described as follows,
to wit:
BEGINNING at a point in the northerly right-of-way line of
Kathryn street at the dividing line between the premises herein
described and Lot No. 19 on the hereinafter mentioned plan of
lots; thence along said right-of-way line of Kathryn street along
the arc of a curve having a chord bearing of North fifty-five
(55) degrees forty-one (41) minutes forty-three (43) seconds West
and having a radius of one hundred seventy-five (175) feet for an
arc length of three and ninety-six one-hundredths (3.96) feet to
a point; thence continuing along the same North fifty-six (56)
degrees twenty (20) minutes thirty-seven (37) seconds West a
distance of one hundred three and seven one-hundredths (103.07)
feet to a point, which point is the northeasterly corner of the
intersection of Kathryn street and Haldeman Avenue; thence along
said easterly right-Of-way line of Haldeman Avenue along the arc
of a curve have a chord bearing of North thirty-two (32) degrees
eleven (11) minutes twenty-two (22) seconds East and having a
radius of four hundred forty-four and forty one-hundredths
(444.40) feet for an arc length of sixty-seven and sixteen one-
hundredths (67.16) feet to a point; thence continuing along the
same North thirty-six (36) degrees thirty-one (31) minutes eight
(8) seconds East a distance of forty-six and forty-four one-
hundredths (46.44) feet to a point; thence along the premises
herein described and Lot No. 12 on the hereinafter mentioned plan
of lots South fifty-three (53) degrees twenty-eight (28) minutes
fifty-two (52) seconds East a distance of one hundred six and
fifty-six one-hundredths (106.56) feet to a point; thence along
the dividing line first above-mentioned South thirty-three (33)
degrees thirty-nine (39) minutes twenty-three (23) seconds West a
distance of one hundred eight and eighteen one-hundredths
(108.18) feet to a point, the point and place of BEGINNING.
BEING Lot No. 11 on the Plan of Westover Gardens, which plan is
recorded in the Office of the Recorder of Deeds of CUmberland
County, Pennsylvania, in Plan Book 46, Page 126.
CONTAINING 12,000.00 square feet.
EXHIBIT A
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AGREEMENT OF SALE
MADE this 24th day of July, 1993, between Richard H.
Garrett and Kathleen J. Garrett, husband and wife, of CUmberland
County, Pennsylvania, herein called "Seller", and Charles J.
Bender, Jr. and Michelle Bender, husband and wife, of York County,
Pennsylvania, herein called "Buyer".
Seller hereby agrees to sell to Buyer ALL that certain
improved property located in the Borough of New Cumberland,
Cumberland County, Pennsylvania, known and numbered as 94
Haldeman Ave., New Cumberland, Pennsylvania, as more particularly
described on Exhibit A hereto (the "premises"), for the sum of
TWO HUNDRED FORTY-NINE THOUSAND ($249,000.00) DOLLARS, which
Buyer agrees to pay.
The execution and performance of this Agreement by the
parties hereto shall be governed by the provisions set forth in
the fOllowing paragraphs and the obligations therein contained
shall be construed as conditions.
1. PAYMENT. The purchase price of $249,000.00 shall
be paid in the following manner:
A. By the payment of the sum of $15,000.00 at initial
settlement, to be held on or before July 27, 1993.
B. By payment of the sum of $234,000.00 along with
interest thereon at the rate of seven and one-quarter
(7.25') percent per annum, in sixty (60) consecutive
monthly payments as follows: Fifty-nine (59) payments
shall be in an amount of $1,849.48, which shall be
EXIIIIIIT II
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applied first to accrued interest and the balance to
principal. The first payment shall be due and payable
one (1) month from the date of settlement, and the
final payment of principal and interest and costs and
fees, if any, shall be due and payable on or before the
fifth (5th) anniversary date of settlement. In the
event that any payment shall be overdue for a period in
excess of ten (10) days, the Buyer shall pay to the
Seller a late charge of two (2C) cents per month
including any partial month prior to payment, for each
dollar overdue, to cover the additional expense
incident to delinquency. This shall not be construed
to obligate the Seller to accept any overdue
installment nor to limit the Seller's rights and
remedies for the Buyer's default under this Agreement.
C. In addition, on or before each annual anniversary
of the date of settlement, Buyer shall pay Seller the
sum of at least Five Thousand ($5,000.00) Dollars, to
be applied towards the principal balance. These annual
principal payments shall not reduce or otherwise affect
Buyer'S obligations to make the monthly payments
described in paragraph 1.B above.
D. Buyer shall have the right to prepay all or any
part of the principal balance, at any time, without
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penalty, provided that as such payment shall not reduce
or otherwise affect Buyer's obligations to make the
monthly payments described in paragraph 1.B above.
2. LEGAL TITLE. At the time that Buyer has paid the
total purchase consideration of $249,000.00 together with
interest and costs and fees, if any, thereon as hereinabove
provided, Seller shall execute and deliver a special warranty
deed conveying good and marketable fee simple title to the
premises which is the subject of this Agreement, free and clear
of all liens and encumbrances, excepting existing building
restrictions, easements of record, privileges or rights of public
service companies, agreements and plans, all if of record,
easements visible from an inspection of the premises, and also
such liens and encumbrances which arise out of any act of Buyer.
otherwise, the title to the premises shall be good and
marketable, such as will be insured by a licensed title insurance
company at regular rates.
Buyers shall, at Buyer'S expense, be responsible for
payment for: (a) Any survey desired by Buyer; (b) the fee for
title search or premium for title insurance or fee for
cancellation, if any; and (c) Buyer's normal settlement costs.
Buyer agrees to accept title as its exists on the date
hereof, subject only to satisfaction of any outstanding mortgages
on the premises, as to which Seller agrees to make regular
payments and to satisfy on or before the date when Buyer makes
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final payment hereunder. Should Seller Fail to make payment on
account of said mortqaqes in a timely manner, Buyer shall have
the option of applyinq the monthly payment provided for in
paraqraph 1.A. to Seller's monthly mortqaqe payments. In the
event Seller is unable to qive a qood and marketable title as
aforesaid, as Buyer's sole and exclusive remedy, Buyer shall have
the option of takinq such title as Seller can qive, without
abatement of price, except as provided above, or of beinq repaid
all monies paid by Buyer to Seller on account of the purchase
price, upon which payment there shall be no further liability or
obliqation as to either party concerning this Aqreement, which
thereafter shall be null and void.
3. PERSONAL PROPERTY. All plumbinq, heatinq and
lightinq fixtures, and systems appurtenant thereto and forminq a
part thereof, as well as all appliances, furniture, fixtures,
personal property and all trees, shrubbery and plantinqs now in
or on the premises shall be included in the sale and purchase
price. None of the above-mentioned items shall be removed by
Seller from the premises after date of this Agreement. Both the
premises and all such fixtures, improvements and personal
property, are sold and transferred in an "AS IS" condition,
without warranties, express or implied.
4. TAXES. ASSESSMENTS AND UTILITIES. In addition to
the payment of principal and interest as above set forth, Buyers
shall pay all Federal, state, County, Municipal or Local taxes,
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assessments and charqes now in force or that may be hereafter
levied upon the premises, as well as all water, sewer and trash
charqes, utilities of any type, and any manner of charqes or
assessments that may hereafter be levied aqainst the premises.
Buyer shall pay to Seller a sufficient initial sum at settlement,
and thereafter additional monthly payments equal to one twelfth
(1/12) of the total real estate taxes imposed on the premises,
from which sums Seller shall pay real estate taxes when due for
the term of this Aqreement. Buyer aqrees to promptly forward to
Seller any real estate tax statements issued by the taxinq
authority which may be received over the term of this Aqreement.
Seller shall provide proof of payment of real estate taxes as
soon as payment is made. Buyer shall provide Seller proof of
payment of all utility charqes as soon as payment is made.
5. TRANSFER TAXES. Buyer and Seller shall pay equal
portions of any realty transfer taxes due at the time the deed is
recorded, calculated on the consideration stated herein.
6. POSSESSION. Buyer shall be entitled to possession
immediately upon initial settlement hereunder.
7. LIABILITY AND FIRE INSURANCE. Buyer shall maintain
and keep in effect at all times liability insurance coveraqe with
respect to the premises hereby conveyed, with minimum unimpaired
limits of One Million ($1,000,000.00) Dollars per person and
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occurrence for bodily injury to or death of persons, and Two
Hundred Thousand ($200,000.00) Dollars per occurrence for damage
to or destruction of property, with Seller being a named insured
with respect to said policy; a copy of said original and all
renewal policies of insurance, shall be furnished to Seller. In
addition, Buyer shall maintain fire and extended coverage
(including sinkhole) insurance with a reputable insurance company
licensed to do business in Pennsylvania for the full replacement
value of the premises, but no less than the original balance due
pursuant to Paragraph 1.B hereof. Such policy or policies shall
name Buyer and Seller as insureds, as their interests may appear,
and Seller's mortgagee, if any.
Buyer shall pay to seller a sufficient initial sum and
thereafter additional monthly payments equal to one-twelfth
(1/12) of the estimated annual insurance premiums from which sums
Seller shall pay the insurance premiums when due for the term of
this Agreement.
8. DEFAULT IN TAX/INSURANCE PAYMENTS. In the event
that Buyer shall fail or neglect to pay any such Federal, State,
County, Municipal, School or Local taxes, assessments, and/or for
utilities, and the insurance premiums as above set forth, Seller
may at their option, consider such failure a default and breach
of this Agreement or Seller may pay the same and deduct the cost
thereof from the monthly payments above set forth which shall
then create a deficiency in the payment of principal and interest
of the principal Obligation of this Agreement.
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9. MAINTENANCE AND REPAIRS. Buyer agrees that Buyer,
at Buyer's own expense, will maintain the premises (including all
improvements thereto) in good condition and repair at all times
and will not permit any waste or disrepair to occur. Buyer's
obligation specifically includes the maintenance of lawn, shrubs
and trees, the swimming pool, and all snow removal. In addition,
Buyer agrees to make any and all repairs which, from time to
time, become necessary or are mandated by federal, state, county
or municipal law, ordinance or code in effect now or which may
become effective in the future.
10. IMPROVEMENTS AND ALTERATIONS. Improvements or
alterations which do not decrease the value of the premises may
be made to the premises with the prior written consent of Seller,
which will not be unreasonably withheld, provided Buyer secures
and files in the proper county office a fully effective
stipulation Against Liens prior to the commencement of
construction. Improvements or alterations which might decrease
the value of the Premises shall not be made.
In the event any improvements or alterations are made,
Buyer shall and does hereby agree to indemnify Seller from the
imposition of mechanic's claims, mechanic's liens and
encumbrances of any nature, including attorney's fees and costs,
which might affect Seller's interest in the subject premises,
except as otherwise may be agreed in writing.
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In the event of Buyer's default as to the terms of this
Agreement, any and all improvements and additions made to the
premises shall be and remain a permanent part of the premises;
they shall not be removed by Buyer and Buyer will not be entitled
to any reimbursement therefor. Nevertheless, if such
improvements, alterations or additions were made without the
prior written approval of Seller, Buyer will remove the same
within thirty (30) days upon written notice from Seller to do so.
In the event of such notice to remove such items, Buyer will
repair the surfaces and structures from which such improvements
were removed in conformity with the surrounding surfaces.
11. USE OF PREMISES. During the term of this
Agreement, Buyer shall use the premises as a residence for Buyer
and their children, if any, and for no other use unless prior
written consent therefor is given by Seller.
12. RIGHT OF INSPECTION. Seller, their agents and
employees, shall have the right to inspect the premises at any
reasonable time upon reasonable notice, which notice may be given
by telephone. Buyer shall keep the premises in good repair and
condition at all times and shall not commit any waste thereon.
13. ASSIGNMENT OR SALE. This Agreement may not be
assigned by Buyer without the prior written approval of Seller,
nor may the premises and/or fixtures or personalty be sold by
Buyer outright or by means of an installment sales agreement or
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comparable document, nor be leased by Buyer, all without the
prior written approval of Seller, provided that nothing contained
in this paragraph shall be construed as a prohibition against the
sale of the premises by Buyer to a third party at final
settlement, so long as Seller shall receive the full
consideration stated in Paragraph 1 herein.
This Agreement may be assigned by Seller upon at least
ten (10) days written notice to Buyer of said assignment, and
Buyer shall make payment to the address specified in such
notification without delay and on the dates due hereunder.
14. CONDEMNATION. In the event of condemnation of the
premises or any portion thereof by any governmental agency,
public authority or utility prior to the payment of all the
within obligations from Buyer to Seller, the payment of damages
for the "taking" shall be applied as follows: (a) To make
payment of the obligation due Seller from Buyer, pursuant to this
Agreement, provided Seller shall apply all amounts received to
reduce the outstanding indebtedness to Seller's mortgagee, if
any, until all balances due, pursuant to the mortgage, shall be
satisfied in full; and (b) After satisfaction of all Buyer'S
obligations hereunder, all damages and other proceeds shall be
and remain the property of Buyer.
15. DEFAULT. If (a) Buyer fails to make payment of
any monies required by this Agreement within a ten (10) day grace
period after the due date for any such payment, and fails to make
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such payment within ten (10) days after written notice by Seller,
or (b) after twenty (20) days written notice by Seller, Buyer
fails to cure Buyer's default in any other act required or
prohibited by this Agreement, then, at the option of Seller,
Buyer shall be in default hereunder. In the case of default by
Buyer, Seller may: (a) declare the principal balance, together
with interest and other charges due hereunder, immediately due
and payable; (b) retain all monies paid pursuant to Paragraph 1
and any and all monies otherwise received under the provisions of
this Agreement (whether on account of the purchase price or
otherwise) as compensation for Buyer's use and occupancy of the
premises and as liquidated damages for breach of this Agreement,
which right may be exercised concurrently with the amicable
ejectment or other termination of Buyer'S possession as provided
hereinafter or otherwise permitted by law; or (c) exercise any
remedies available to Seller at law or in equity. All remedies
hereunder may be exercised individually, successively, or
cumulatively, in the discretion of Seller.
In the event of any default by the Buyer, the Buyer
hereby authorizes and empowers the Prothonotary or any attorney
of any court of record of the commonwealth to appear for them and
in their behalf to confess judgment for the principal sum and
interest remaining unpaid thereon with costs and five (5')
percent attorney's commission hereby waiving the right of
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exemption and inquisition so far as the premises is concerned or
seller may proceed as a landlord with full power of distraint to
collect any arrearages that may have accumulated under the
payoent nbl1,atlnn and tnr th'. purpnse Buyer wa.ve. the benet.t
of all appraisement, stay and exemption lawS, and inquisition on
real estate, and all bankruptcy or insolvency lawS noW in force
or hereafter passed to the extent permitted by laW,
seller shall have the right to collect any damages that
have been caused to the premises by any act of Buyer or their
agents and for this purpose Buyer does hereby authorize and
empower any attorney of any court of record of pennsylvania to
appear for and enter judgment against Buyer for such sum, with or
without declaration, with costs of suit, release of errors,
without stay or execution and with five (5\) percent added for
attorney collection fees; and Buyer also waives the right of
inquisition on any real estate that may be levied upon to collect
this judgment, and so hereby voluntarilY condemn the same, and
authorize the prothonotary to enter upon the writ their said
voluntary condemnation; and Buyer further agrees that said estate
may be sold upon a writ of execution and they hereby waive and
release all relief from any and all appraisements, stay or
exemption lawS of any state noW in force or hereafter to be
passed.
It is further agreed that upon any such default. all
Buyer'S right, title and interest in the Agreement shall
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forthwith cease, end and terminate, and the Seller shall be
entitled to the immediate possession of the premises which are
the subject matter of this Agreement and the Seller may file an
amicable action of ejectment in the Court of Common Pleas of
cumberland county, pennsylvania, for said premises as if a
summons had been regularly issued out of said court at the suit
of said Seller against the Buyer and had been duly served and so
returned by the Sheriff, and upon the filing of a complaint,
under oath, of the Buyer's said default, by Seller, or any agent
of Seller, the Buyer does hereby authorize and empower the
prothonotary, or any attorney of any court of record of the
commonwealth of pennsylvania, to appear for said Buyer and in
their behalf, to enter a confession of judgment with costs
against the Buyer and in favor of Seller for the premises which
are the subject matter of this Agreement, and to direct the
immediate issuing of a writ of possession with a proper clause
for costs, waiving all irregularities, without asking leave of
court, and without stay of execution, right of appeal and right
to have judgment opened. It is further understood and agreed
between the parties hereto that the exercise of anyone of the
remedies above set forth shall not act as forfeiture of the right
to enforce any other remedy available to Seller under this
Agreement or by law but any such remedy may be enforced at the
same time or at a different time by Seller. Acceptance by Seller
of the payments provided for in this Agreement at a time after
the same shall become due, or any delay, waiver, admission,
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forbearance or failure on the part of the Seller to enforce any
of the rights herein reserved to them shall not in any way be
considered a waiver of their right to enforce the same at any
time without any notice whatsoever.
16. ENTIRE AGREEMENT. This document contains the
entire agreement between Buyer and Seller; there are no
representations, warranties, covenants, terms or conditions,
except as specifically set forth herein.
17. TIME OF THE ESSENCE. Time shall be of the essence
to the performance of all terms and conditions of this Agreement.
18. BINDING AGREEMENT. This Agreement shall extend to
and be legally binding upon the parties, their respective heirs,
executors, administrators, successors and assigns. When
appropriate in the context of this Agreement, the plural shall be
substituted for the singular, the masculine for the feminine, the
neuter for either, and vice versa.
19. WAIVER. The failure of either party to insist
upon strict enforcement of any provisions of this Agreement shall
not constitute a waiver of the right to enforcement of that
provision or of any other provision.
20. DESCRIPTIVE HEADINGS. The descriptive headings
used herein are for convenience only, and they are not intended
to indicate all of the matter in the sections which follow them.
21. CONDITIONAL RECORDING. Provided that, and only
after such date as, Buyer has paid a total of Thirty Thousand
($30,000.00) Dollars towards the principal of the purchase price
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of the premises (including the payment at initial settlement),
then, at Buyer'S option, the Buyer may record this Agreement, or
a suitable memorandum hereof, and seller Agrees to acknowledge
this Agreement, or execute and acknowledge such memorandum, so
that same shall be in recordable form, immediately upon Buyer'S
demand following payment of the said total Thirty Thousand
($30,000.00) Dollars. A deed shall be delivered and recorded
upon full payment to Seller. All recording fees shall be paid by
Buyer.
22. ~OTICE. Any notice required or permitted to be
delivered hereunder shall be deemed received when sent by united
states mail, postage prepaid, certified mail, return receipt
requested, addressed to Seller or Buyer, as the case may be, at
the address set forth beloW the signature of such party hereto.
23. CONTROLLING LAW. This Agreement shall be
construed under and in accordance with the laws of the
commonwealth of pennsylvania.
24. PARTIAL INVALIDITY. In case anyone or more of
the provisions contained in the Agreement shall for any reason be
held to be invalid, illegal, or unenforceable in any respect,
such invalidity, illegality, or unenforceability shall not affect
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any other provision hereof, and this Agreement shall be construed
as if such invalid, illegal, or unenforceable provision had never
been contained herein.
25. At settlement Buyer will provide evidence
satisfactory to Seller that all monies paid by Buyer have been
acquired in a manner which will not subject such monies, the
Seller, or the premises, to any claim or liability in Buyer'S
current federal bankruptcy proceedings.
26. The document entitled "Explanation of Rights"
which is attached hereto and marked as Exhibit B shall be
executed by the Buyer and become a part hereof.
27. Buyer shall reimburse Seller any personal property
taxes paid by Seller attributable to this Agreement.
Signed with intent to be legally bound.
Witness:
(~y
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Address: 1709 Edgar Lane
Camp Hill, PA 17011
Witness:
.~~
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Buyer:
~~~ ~{J~'-
es J. nder, Jr.
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Michell! Bender
Address:
q'{ ~bfNlMl AA
N(~~,., Aa l"fa_
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Exhibit A
Agreement of Sale
Richard H. Garrett and Kathleen J. Garrett
to
Charles J. Bender, Jr. and Michelle Bender
Legal Description
ALL THAT CERTAIN tract or parcel of land situate in the Borough
of New cumberland, County of Cumberland, and Commonwealth of
Pennsylvania, more particularly bounded and described as follows,
to wit:
BEGINNING at a point in the northerly right-of-way line of
Kathryn Street at the dividing line between the premises herein
described and Lot No. 19 on the hereinafter mentioned plan of
lots; thence along said right-of-way line of Kathryn Street along
the arc of a curve having a chord bearing of North fifty-five
(55) degrees forty-one (41) minutes forty-three (43) seconds West
and having a radius of one hundred seventy-five (175) feet for an
arc length of three and ninety-six one-hundredths (3.96) feet to
a point; thence continuing along the same North fifty-six (56)
degrees twenty (20) minutes thirty-seven (37) seconds West a
distance of one hundred three and seven one-hundredths (103.07)
feet to a point, which point is the northeasterly corner of the
intersection of Kathryn street and Haldeman Avenue; thence along
said easterly right-of-way line of Haldeman Avenue along the arc
of a curve have a chord bearing of North thirty-two (32) degrees
eleven (11) minutes twenty-two (22) seconds East and having a
radius of four hundred forty-four and forty one-hundredths
(444.40) feet for an arc length of sixty-seven and sixteen one-
hundredths (67.16f feet to a point; thence continuing along the
same North thirty-six (36) degrees thirty-one (31) minutes eight
(B) seconds East a distance of forty-six and forty-four one-
hundredths (46.44) feet to a point; thence along the premises
herein described and Lot No. 12 on the hereinafter mentioned plan
of lots South fifty-three (53) degrees twenty-eight (2B) minutes
fifty-two (52) seconds East a distance of one hundred six and
fifty-six one-hundredths (106.56) feet to a point; thence along
the dividing line first above-mentioned south thirty-three (33)
degrees thirty-nine (39) minutes twenty-three (23) seconds West a
distance of one hundred eight and eighteen one-hundredths
(10B.IB) feet to a point, the point and place of BEGINNING.
BEING Lot No. 11 on the Plan of Westover Gardens, which plan is
recorded in the Office of the Recorder of Deeds of cumberland
County, Pennsylvania, in Plan Book 46, Page 126.
CONTAINING 12,000.00 square feet.
UNDER AND SUBJECT to all applicable restrictions, reservations,
easements and rights-of-way of record including but not limited
to a Declaration dated December 10, 19B4 and recorded on December
10, 19B4 in the Office of the Recorder of Deeds of Cumberlpnd
County, Pennsylvania, in Misc. Book Volume 301, Page 372.
EXPLANATION OF RIGHTS
A. We clearly and specifically understand that by signing
this Agreement which contains Confession of Judgment clauses:
1. We will authorize the Seller to enter a judgmnet
against us in the Seller's favor which will give the Seller a
lien upon any real estate which we may own, including our home;
2. We will give up the right to
opportunity to be heard prior to the entry
the records of the court;
any ntoice or
of this judgment on
3. We will agree that the Seller can enter this
judgment without any proof of nonpayment or other default on our
part;
4. We will subject all of our property, both personal
property and real estate, to execution (and sheriff's sale),
pursuant to this judgment, prior to proof of nonpayment or other
default on our part;
5. We will be unable to challenge this judgment,
should the Seller enter it, exept by a proceeding to open or
strike the judgment; and such a proceeding will result in
attorney's fees and costs which we will have to pay; and
6. We know and understand that it is the Confession of
Judgment clauses in this Agreement which gives the Seller the
rights enumerated above.
B. We fully and completely understand these rights which we
have received prior to signing this Agreement and are clearly
aware that these rights will be given up, waived, relinqished and
abandoned if we sign the Agreement. Nevertheless, we freely and
voluntarily choose to sign the Agreement, our intention being to
give up, waive, relinquish and abandon our known rights (as
described in Paragraph A above) and subject ourselves to the
circumstance. described immediately above.
EXHIBIT "Bn
~
Laws, Staruch e Pi.scJrcik
ATTORNEYS AT V.W
W, SCOTT STARUCH
CERARD J. PISARCIIt
MICHAEL J. WIL50N
20 ERIOIlD IlOAD
SUIT! 215
Lerno,ne, Penruylwnia 17043
17m .75-oeoo
PAX 17m .75-3171
August 18, 1995
CHARLES J BENDER JR
MICHELLE BENDER
94 HALDEMAN AVE
NEW CUMBERLAND PA 17070
CERTIFIED MAIL
Z 404 251 509
RETURN RECEIPT REQUESTED
AHD BY FIRST CLASS MAIL
Dear Mr. and Mrs. Bender:
This is to advise you that you are again in default under
the terms of your Agreement of Sale dated July 24, 1993 with
Richard H. and Kathleen J. Garrett for the purchase of the premises
which you now occupy.
You have failed to make the monthly payment due July 27,
1995, and the payment of at least $5,000.00 due on or before the
anniversary date of July 27, 1995. Your current principal and
interest balance, including late fees, is $6,986.47
Please be advised that if said amount of $6,986.47 is not
paid in full to the Garretts on or before Monday, August 28, 1995,
the Garretts will immediately exercise their rights under paragraph
15 of the Agreement, including those for possession of the
premises, declaring all money due under the Agreement and payment
of attorneys fees.
In addition, you are liable under paragraph 9 of the
Agreement to maintain the premises in good condition and repair at
all times. An inspection will be made of the premises and costs of
repairs assessed against you.
sincerely,
W. Scott Staruch
WSS:mls
cc Richard H. Garrett
David H. stone, Esq.
EXHIBIT C
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. SENDER: Compl". items end 2 when Idditlonlt "rile.. Ire d.alred. and compl"1 It.ms
3 .nd ..
Put your addr... in the "RETURN TO" Spiel on the reve'" ,ide. Failure to do this will prevent1hi, Clrd
from bemg returned to you. T r'turn, j t f will , id h " f r d Ii r I n
the dati 0' d'hvt~1 For Id IllOnl ... t . 0 OWIng ,,'..,ICII Ir. ""1'1 to onlU t po.tmll'" Of .11
.na enick 6Ox(..l tor Iddition.lnrvlcell' r.quelted.
,. 0 Show to whom dlllYlrld, dl'l. end .dd'....... .ddr.... 2. 0 Alltrlct.d D.livery
(E.u.. dt4'1,j (Ez,.. dt4'1,1
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2 1 1995
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PI Form 3811, Apr, 1989
.U.I.o.P.O.1H.231-111
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LaW!, Staruch e Pwrcik
AlTOkNEYS AT LAW
W, SCOlT STAkUCH
CEIlAIlD J. P1MkCI~
MICHAEL J, WILSON
20 Ell10kD kOAD
SUITE 215
Lerno,ne, Pmru,lwnia 17043
17m 875-<><100
September 13, 1995 FAX 17m 875-3871
CHARLES J BENDER JR
MICHELLE BENDER
94 HALDEMAN AVE
NEW CUMBERLAND PA 17070
HAND DELIVERED
AUn BY FIRST CLASS MAIL
Dear Mr. and Mrs. Bender:
As you were advised per my letter of August 18, 1995, you
have been and remain in default under the terms of your Aqreement
of Sale dated July 24, 1993 with Richard H. and Kathleen J. Garrett
for the purchase of the premises which you now occupy at 94
Haldeman Ave., (the .premises.) New cumberland, Pennsylvania.
Please be advised that we are proceedinq as follows on
behalf of the Garretts:
1. Demand is hereby made upon you for immediate
possession of the Premises.
2. Pursuant to the terms of the said Aqreement of Sale,
particularly paraqraph 15 thereof, all monies paid to date by you
will be retained as compensation for your use and occupancy of the
premises, and a Complaint in confession of judgment for ejectment
will be filed aqainst you in the cumberland County Courthouse
within the next 24 to 48 hours.
3. Followinq your removal from the Premises, an
inspection of the Premises will be made and an action for the cost
of any necessary repairs, toqether with mesne profits (i.e. the
fair rental value of the Premises for your occupancy followinq your
default) will be filed.
Please advise the undersiqned immediately should you
intend to promptly surrender possession of the Premises.
Otherwise, we shall proceed as noted above.
wss:pdr
cc Mr. and Mrs. Richard H. Garrett
David H. Stone, Esq. (courtesy copy) (via facsimile and first-
class mail)
EXHIBIT D
. .
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VERIFICATION
I, Richard H. Garrett, state upon personal knowledge or
information and belief that the averments set forth in the
foregoing Complaint in Confession of Judgment for Ejectment are
true and correct. I understand that false statements herein are
made suject to the penalties of 18 Pa.C.S. S 4904 relating to
unsworn falsification to authorities.
Date:
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RICHARD H. GARRETT and
KATHLEEN J. GARRETT,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
v.
.
,
.
.
: NO. 'Ie; . 'iq'f{) (',<,_1 T....
CHARLES J. BENDER, JR. and
MICHELLE BENDER,
Defendants
To: Charles J. Bender, Jr. and
Michelle Bender, Defendants
C' I
You are hereby notified that on ,~.;,) t
the following Judgment was entered against you
captioned case.
J f , 1995
in the above-
confe..ion of Ju4q..ent for Ijeotaent fro.
'4 Ba14eaan Avenue, .ev cuaberlan4, PA
Date:
,
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.i.Hd'''~_ r l(lll.:"~
Prothonotary
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RICHARD H. GARRETT and
KATHLEEN J. GARRETT,
Plaintiffs
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PA
.
.
.
.
v.
CHARLES J. BENDER, JR. and
MICHELLE BENDER,
Defendants
: NO. 1/5 llc.,'-( C (lj ~ j ~.,~,-
.
.
.
.
CERTIFICATE OF RESIDENCE
It is hereby certified that the precise residence of the
plaintiffs and defendants herein are as follows:
Richard H. Garrett
Kathleen J. Garrett
1709 Edgar Lane
Camp Hill, PA 17011
Plaintiffs
Charles J. Bender, Jr.
Michelle Bender
94 Haldeman Avenue
New cumberland, PA 17070
Defendants
By:
LAWS,
20 Erford Rd, suite 215
Lemoyne, PA 17043
(717) 975-0600
RICHARD H. GARRETT and
KATHLEEN J. GARRETT,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
v.
CHARLES J. BENDER, JR. and
MICHELLE BENDER,
Defendants
NO. (/"5. <I (j </ U C: I v...../' L&_,-,>-
.
.
.
.
PRAECIPE FOR WRIT OF POSSESSION
To: Prothonotary
Please issue a Writ of Possession in the above matter.
LAWS, STARUCH & PISARCIK
BY'~
W. Scott Staruch, Esq.
20 Erford Rd, suite 215
Lemoyne, PA 17043
(717) 975-0600
PW(A""\j
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RICHARD H. GARRETT and
KATHLBBN J. GARRETT,
Plaintiffs
.
.
IN THB COURT OF COMMON PLEAS DF
CUMBBRLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
:
CHARLES J. BENDER, JR., and
MICHELLE BENDER,
Defendants
ND. 95-4940 CIVIL TERM
AND NOW,
i DRDER OF COURT
this L"z. r -day of September,
1995, upon consideration
of Defendants' Petition To Open Judgment in Ejectment, a hearinq is
SCHBDULED for Monday, October 2, 1995, at 9:00 a.m., in Courtroom
No.5, Cumberland County Courthouse, Carlisle, Pennsylvania.
PENDING the hearinq, all proceedinqs are STAYED.
BY THE COURT,
/ [(. /7
J. es ey Oler,
W. Scott Staruch, Esq,.
20 Brford Road, Suite 215
Lemoyne, PA 1704~
Attorney for Plaintiffs
David H. Stone, Esq.
414 Bridqe St., P.O. Box E
New Cumberland, PA 17070
Attorney for Defendants
Richard H. Garrett
Kathleen J. Garrett
1709 Edqar Lane
Camp Hill, PA 17011
Plaintiffs
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pd\pel\1'clule.rul\9'95
RICHARD H. GARRETT and
KATHLEEN J. GARRETT,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 95-4940 CIVIL TERM
CHARLES J. BENDER, JR., and
MICHELLE BENDER,
Defendants
RULE TO SHOW CAOSE
AND NOW, this
day of
, 1995, on petition of
Charles J. Bender, Jr., and Michelle Bender, this Court grants a rule
on the Plaintiffs to show cause, if any they have, why the judgment in
ejectment should not be stricken and why attorney's fees in the amount
of $1,500.00 together with costs should not be awarded to the
Defendants.
All proceeding to be stayed until further order of court.
RULE RETURNABLE the
day of
, 1995, in Court
Room of the Cumberland County Courthouse, Carlisle,
Pennsylvania, commencing
.m.
BY THE COURT,
J.
pd\pet\bender.opn\9'95 .
RICHARD H. GARRETT and
KATHLEEN J. GARRETT,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 95-4940 CIVIL TERM
CHARLES J. BENDER, JR., and
MICHELLE BENDER,
Defendants
PETITION TO OPEN JUDGMENT IN EJECTMENT
AND NOW come the petitioners, Charles J. Bender, Jr., and
Michelle Bender, husband and wife, the defendants who petition your
Honorable Court for a rule upon plaintiffs, Richard H. Garrett and
Kathleen J. Garrett, to show cause, if any they may have, why the
judgment in ejectment entered in the within matter should not be
opened and in support thereof relates:
1. This action was commenced by the filing of a Complaint in
Confession of Judgment for Ejectment on or about September 18, 1995.
2. Concurrently with the filing of the complaint, plaintiffs
filed a praecipe for Writ of Possession.
3. The real estate which is the subject of this action is the
defendants' principal residence and is thus residential real property
as defined in Act of January 30, 1974, P.L. 13 No. 6, ~101 as amended
October 5, 1978, P.L. 1100 No, 258, 41 P.S. ~101 (Act No.6) .
4. Plaintiffs' action in confession of judgment is barred under
~407 of Act 6, 41 P.S. ~407.
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Charles J. Bender, Jr., states that he is one of the Petitioners
named in the foregoing instrument and that he is acquainted with the
facts set forth in the foregoing instrument; that the same are true
and correct to the best of his knowledge, information and belief; and
that this statement is made subject to the penalties of 18 Pa. C.S.A.
~4904 relating to unsworn falsification to authorities.
eJ'4A~~ ~/L.~ 9- .
CHARLES . BENDER, JR.
Date: S~f){, .2~ 19" S-
-
RICHARD H. GARRETT and
KATHLEEN J. GARRETT,
plaintiffs
uL, \, ic!JJ
I r'
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
: CIVIL ACTION - LAW
:
CHARLES J BENDER, JR. and
MICHELLE BENDER,
Defendants
NO. 95-4940 CIVIL TERM
AND NOW,
ORDER OF COURT
this ~ day of
upon
~......
a~fot."mkG!',
1995,
consideration of the attached Stipulation dated 9/29/95, it is
ORDERED that no action shall be taken at any time on the Writ of
possession issued on 9/18/95 in this action, and further, that no
execution shall issue upon the judgment in ejectment confessed by
Plaintiffs against Defendants in this matter, except upon and
following full compliance with S 407 of the Act of January 30,
1974, P.L. 13, No.6, (41 P.S. S 407) as amended.
The hearing previously scheduled for Monday, October 2,
1995, is cancelled.
BY THE COURT,
W. Scott Staruch, Esq.
Laws, Staruch & Pisarcik
20 Erford Road, suite 215
Lemoyne, PA 17043
David H. Stone, Esq.
Stone, LaFaver & Stone
414 Bridge St., P. O. Box E
New Cumberland, PA 17070
.
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Richard H,Garrett and
Kathleen J. Garrett
-vs-
Charles J. Bender, Jr. and
Michelle Bender
In the Court of Common Pleas of
Cumberland County, Pennsylvania
No. 95-4940 Civil Ter
Possession
R. Thomas Kline, Sheriff who being duly sworn according to law,
says possession of property was turned over to peacefully to
plaintiffs therefore the writ of possession is returned to the prothonotary
on January l8, 1996. See attached letter from attorney.
So ans\~ers:
R. Thomas Kline, Sheriff
By -~.c~J~
Deputy Sheriff
Sheriff's Costs:
Docketing
Prothonotary
Service
Surcharge
18.00
1.00
9.52
4.00
$32.52
Advance costs 150.00
Sheriff's Costs 32.52
$ 117.48
refund to atty 1-18-96
Sworn and Subscribed To Before Me
This ./~ ~ Day, o{J.-,,,o .,
1996, A.D. ',_ ~'tt.A- C nt...ih.~, L'Fl'
pJolthonotary
So ?~~___v. r'~~~ .'
R. Thomas Kline, Sheriff
BY ~-l//" ~)~zt:
Deputy Sheriff
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ATTORNEYS M lAW
II' SCOTT STAkUCIJ
CEI\ARD J PUARCIK
MICHAEL J WILSON
20 EkFORD ROAD
SUITE 215
I.emo,ne, Penru,/wmia 17CU3
(717) 97!HMtOO
fAX (117) 975.3871
January 17, 1996
Office of Sheriff
CUmberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
ATTN: Pat
Re: Garrett v. Bender
Writ of Possession No, 95-4940 Civil Term
Dear Pat:
The litigation which gave rise to this matter has been
amicably resolved by the parties and possession of the subject real
estate has been peaceably surrendered by the Defendants to the
Plaintiffs, our clients, Richard and Kathleen Garrett.
Consequently, there is no need for any further action on the part
of your office to enforce the Writ of Possession. You may make
your return upon this advice and direction to cease further
enforcement of same.
Thank you for your assistance.
ce: Richard H. Garrett
RICHARD H. GARRETT AND
KATHLEEN J. GARRETT,
Plaintiffs
: IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
CHARLES J. BENDER, JR. and
MICHELLE BENDER,
Defendants
.
.
.
.
: No. 95-4940 CIVIL TERM
PRAECIPE TO DISCONTINUE AND SATISFY
To: Prothonotary
Please mark the above-referenced matter discontinued with
prejudice and mark the judgment entered against Defendants
satisfied.
LAWS, STARUCH & PISARCIK
:;m5--
W. Scott Staruch, Esq.
20 Erford Road, suite 215
Lemoyne, PA 17043
(717) 975-0600