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PHILADELPHIA STEAKS AND
HOAGIES,
Plaintiff
,
1
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IN THE COURT OF COMMON PLEAS OF
CUHBERLAND COUNTY, PENNSYLVANIA
v,
CIVIL ACTION - LAW
CARLO PALUMBO, TDBA
PALUMBO'S PIZZA,
Defendant
1
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.
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NO. 95-7096 CIVIL TERM
ORDER OF COURT
AND NOW, this 21~t day of August, 1997, upon consideration of
Defendant's Petition To Strike Off or Open Confessed Judgment or
Deofault Judgment in Stay Execution Proceedings, it is hereby
ORDERED thatl
1, A Rule issued upon the Plaintiff to show cause why the
Defendant is not entitled to the relief requested;
2. The Plaintiff shall file an answer to the Petition within
20 days of this date;
3, The Petition shall be decided under Pennsylvania Rule of
Civil Procedure 206.7;
4. Depositions shall be completed within 45 days of this
date;
5, Argument shall be held on Nonday, October 27, 1997, at
3130 p,m" in Courtroom No, 5, Cumberland County Courthouse,
Carlisle, Pennsylvania,
6. Execution proceedings are stayed pending further order of
this court; provided, that Defendant shall post a bond with
corporate surety acceptable to the court or cash with the
Prothonotary in the amount of the judgment against Defendant to
protect Plaintiff from any loss resulting from the stay should
Defendant not prevail on his Petition; and provided, further, that
FrlED-OFACE
OF T~r: f'.~OTj:()NOTNrY
91 AUG 22 PH I: 3S
CW,;::E;l,/';'JD COUNTY
PENNSYLII,V'M
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this stay shall be automatically dissolved in the absence of a
timely filing of the same,
John R. Elliott, Esg,
117 East Main Street
York, PA 17401
Attorney for Plaintiff
Austin F. Grogan, Esg,
24 West 32nd Street
Camp Hill, PA 17011
Attorney for Defendant
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BY THE COURT,
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PHILADELPHIA STEAKS AND
HOAGIES,
Plaintiff/Respondent
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVil ACTION
v.
95.7096
CARLO PALUMBO, TDBA
PALUMBO'S PIZZA,
DefendantlPetitioner
AND NOW, this
. ORDER
day of
. 1997 upon consideration of
the Petitioner, the petition of Carlo Palumbo is hereby ORDERED and DIRECTED that a Rule
is Issued upon Respondent, Philadelphia Steaks and Hoagies to show cause why the
Petitioner is not entitled relief requested:
1, A Rule Is issued upon Respondent to show cause why the Petitioner is not
entitled to the relief requested;
2. The Respondent shall file an Answer to the Pelition within twenty (20) days
of service of the Order;
3, The Petition shall be decided under Pa.R,C.P. 206.7; and
4. All execution proceedings included by Plaintiff/Respondent in the above
matters are hereby STAYED pending further Order of this Court.
BY THE COURT
J.
v.
IN THE COURT OF COMMO;, PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION
95-7096
PHILADELPHIA STEAKS AND
HOAGIES,
Plaintiff/Respondent
CARLO PALUMBO, TOBA
PALUMBO'S PIZZA,
Defendant/Petitioner
PETITION TO STRIKE OFF OR OPEN CONFESSED JUDGMENT
OR DEFAULT IUDGMENT IN STAY EXECUTION PROCEEDINGS
Carlo Palumbo, t/d/b/a Palumbo's Pizza, by and through his attorney Austin F,
Grogan, Esquire files this Petition and the support thereof avers the following:
BACKGROUND
1. Petitioner herein is Carlo Palumbo currently resides at 4930 Carlisle Pike,
Mechanicsburg, Cumberland County, Pennsylvania, 17055;
2, Respondent herein is Philadelphia Steaks and Hoagies a Pennsylvania
Corporation with offices at 4401 Carlisle Pike, Camp Hill, Cumberland County,
Pennsylvania 17011;
3. On or about September 14, 1993 Petitioner signed a purported Promissory
Note, for $14,000,00 to be paid in $1,000,00 Increments for 14 months (a true and correct
copy of the aforementioned purported Promissory Note is attached and incorporated by
reference hereto as Exhibit "A");
4. On or about December 18, 1995 the Respondent filed an action In trespass
to recover monies purported due as the result of the alleged Promissory Note;
5. The pleading Indicated the Notice was In the Court of Common Pleas of York
County, Civil Action law with a Lawyer Referral Service from the York County Bar
Association (attached and Incorporated by references hereto as Exhibit liB ");
6. On or about December 15, 1995, service was made by handing the
Individual, Identified as Sal Dlroberto a complaint for action and trespass docketed with a
York County Common Pleas Notlcei
7. On or about January 5, 1996, the Respondent filed a default notice on the
Petitioner Indicating that he had not responded to the Complaint in this action;
MOTION TO STRIKE IUDGMENT
8. The averments In Paragraphs 1 through 7 are inclusive and Incorporated by
reference here In their entirety.
9. Pennsylvania Rule of Civil Procedure 2951(a) provides interalla that the
Prothonotary shall enter a judgement by confession on a note, bond or other instrument
confessing judgment or authorizing confession by an attorney at law;
10. A certificate of residence of the Plaintiff and Defendant shall be attached (see
Pennsylvania Rule of Civil Procedure 2951 (a)(2)(llllli
11. Respondent did not file a certificate of residence as required by Pa.R,C,
2951(a)i
12, The filing of the note (instrument and certificate of residence of the Plaintiff
is a condition precedent under Pa.R,C.P, 2951(a) that the prothonotary and judgment by
confession;
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13. The Respondent's Notice to Plead entt"red identifies the York County as the
York County Lawyer Referral Service of the York County Bar Association as the appropriate
notice for whom legal help can be obtained, Pa.R.C,P, 1018.1 Notice to Defend Form;
14. The Respondent's Notice to Defend entered in this matter is irregular for the
reasons set forth above which defects the fact of the record of this proceeding;
15. The purported Promissory Note does not indicate when any payments are due;
16, The Promissory Note does not indicate what consideration was received for
Note;
17, Respondent's Complaint in Trespass does not state a cause of action which
relief can be obtained;
18. Respondent's Complaint alleges the Note was in connection with the purchase
of a business at 4729 Old Gettysburg Road, Cumberland County, Pennsylvania;
19, Respondent did not own the business at 4729 Old Gettysburg Road,
Cumberland County, Pennsylvania and therefore could not sell the business;
20. The business property is owned by Susan M. Ditmer and the late Charles N.
Ditmer, Jr. (Commercial Lease is attached and incorporated by reference as Exhibit "C");
WHEREFORE, the Petitioner respectfully requests this Court to strike off the judgment
by default entered January 5, 1996.
PETITION TO OPEN DEFAULT IUDGMENT
21. The averments in Paragraphs 1 through 7 are inclusive and incorporated by
reference here in their entirety.
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22, The terms of the purported Promissory Note were not complete at the time
they were executed by the Petitioner and changes contained a blank and now IImUed to the
principal amount of the Note and Disclosure form were filed out Incompletely by
Respondent or Respondent's agents and crossovers and x-outlanguage was not initialed or
executed by the Petitioner;
23, Petitioner did not receive a copy of the Note or any Disclosure form when he
signed those documents;
24, The purported document does not indicate when the payments are to begin
nor cease;
25, Respondent did not advise Petitioner as to when the first payment was to be
made;
26. Respondent did not give the Petitioner the opportunity to seek or consent wUh
Independent legal counsel prior to Petitioner signing Ihe Note;
27. Petitioner never consented in writing to allow the Respondent to have a
security Interest In any property In the possession of Ihe Petitioner;
28. The Note execu\>!d by Petitioner was not supported by and lacking in
adequate consideration;
WHEREFORE, the Petitioner respectfully requests this Court to open the default
judgment of January 5, 1996 in the above caption.
PETITION TO STAY EXECUTION PROCEEDINGS
29. The averments in Paragraphs 1 through 7 are inclusive and incorporated by
reference here In their entirety.
30. As for the reasons set forth, Petitioner's waiver of due process rights of nollce
and hearing were not voluntarily intelligently and knowingly waived;
31, For reasons set forth in this herein the pleading Is defective on the face ann
Indicating the Petitioner was to respond to the York County Lawyer Referral for legal
assistance;
32. Pa,R,C.P, 1018,1, for the reasons set forth the efforts by the Respondent should
be to execute on the Petitioner's property should be stayed pending the resolullon matters
raised in this petition.
WHEREFORE, the Petitioner respectfully requests this Court to stay the execution
proceedings initiated by Respondent pending resolutions of the matter raised in this Petition,
strike the judgment by default of January 5, 1996, open the judgment by default of January
6, 1996, grant the Petitioner any and all relief, this Court in its discretion deem appropriate,
initial a rule upon Respondent to show cause why the Petitioner should not be entitled to
relief requested.
Respectfully Submitted
Date:
Austin F. Grogan sq e
24 North 32nd treet
Camp Hill, PA 17011
717-737-1956
Attorney 10#59020
Attorney for Defendant/Petitioner
1)1' (HI
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VERIFICATION
I, Carlo Palumbo, verify that the statements made in the foregoing Petition are true
and correct to the best of my knowledge, Information and belief. I understand that false
statements made herein are made subject to the penalties of 18 Pa, C,S. Section 4904,
m,.tlng" nn.wom ("'''''''00 10 ,"'h"'IIiU ~4
Carlo Palumbo
Date: i,l! ~~>
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~ROMISBORY NOT-A
DATEI
9-I4-q3
F'OR VALUE F:ECEl'JEll,
PAL~~U~- ,=,f
Up,-.n default 1" the pl"~nopt and full payme"t ".f .!Itly
InstOlllment ,=,f p~I"" ipal O~ intlJr!!st on thlll F'~"''''I!l!lr.'r" IJo:;.t,.,
the ent Ira unpaid pr itl.~ Ipal her e.;., and lnte~est thp.~e':'11 t."
the datlP of paym..nt !lhall Imn'EnJtiltely b..o:om.. due alld Plljo'o\\t-I e;>
ollt the opt I.:." lInd ~Ip''', d"'n.!lnd ,:or the H':oldp.~ hlJ~9':".
DIl1oen,:.., presentmel1t, dem.lIld, prote~t o~ ".:.tlo:l'I r..f no""
pOlyment .:.~ dish':on"" wi th ~IHlpe.:t t." this P~r.'ml!l~.:.t y N.;.t'! M ':
her..by w..lv..d. In the evnl1t I it Igi.\t 10" ill """e!!!Iar)/ t,:,
':."lle"t 'any sums due;> undp.r this pro;.mlosary Note, NiI".r !!Ih",11
pay all .:.:osts and e~pell!!!Ig ",r Ho:.lde~, In,,llIdlno att."rnpjo!'l
r.lJlI of ISX. '
l'he f"Hure of the Holder hIP'e<:.'lf to el<er<:I!le ally 0:" itw
r lohts herllll"dor In ""y I"stan<:e shall 1I.:,t "':'l1st 1 h
waiver thereor In that Or any other InAtan"..
Mall.., .
By
f1tle
EXHIBIT "1"
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PHILADELPHIA STEAKS AND
HOAGIES, -
Plaintiff
IN THE COURT OF COMMON PLEAS 0\:
YORK COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
NO.
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CARLO PALUMBO, TDBA
PALUMBO'S PIZZA,
Defendant
11- (h-- 709{
NOTICE
You have been sued in Court. If you wish to defend against the claims set forth in tle
following pages, you must t.\ke action within twenty (20) days after this Complaint and Notice
are served by entering a written appearance personally or by an attorney and filing in wri~ing
with the Court, your defenses or objections to the claims set forth against you. You are will',led
that if you fail to do so, the case may proceed without you and a judgment may be enli:;'ed
against you by the Court without further notice for any money claimed in the Complaint or ;'or
any other claim or relief requested by the Plaintiff. You may lose money or property or otl\er
rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU no
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE 1 HE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELF.
Lawyer Referral Service of the
York Counly Bar Association
York Counly Bar Center
137 East Market Street
York, PA 17401
Phone: (717) 854-8755
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PHILADELPHIA STEAKS AND
HOAGIES,
Plainliff
IN THE COURT OF COMMON PLEAS OF
YORK COUNTY, PENNSYLVANIA
CIVIL ACTION. LAW
v,
CARLO PALUMBO, TDBA
PALUMBO'S PIZZA,
Defendanl
NO.
AVISO
USTED HA SIDO DEMAND ADO EN LA CORTE, Si uSled desea defenderse de las
quejas eltpUeSlas en las paginas siguienles, debe lomar acci6n denlro de veinle (20) dfas a partir
de la fecha en que recibi6 la demanda y el aviso. USled debe presenlar comparecencia escrita
en persona 0 par abogado y presenlar en la Corte par escrilO sus defensas 0 sus objeciones alas
demandas en su con Ira.
Se Ie avisa que si no se defiende, el caso puede proceder sin uSled y la Corte pu: de
decidir en su con Ira sin mas aviso 0 nOlificaci6n por cualquier dinero reclamado en la demaJda
o por cualquier olra queja 0 compensaci6n reclamados par el Demandanle. USTED PUEDE
PERnER DINERO, 0 PROPIEDADES U OTROS DERECHOS IMPORTANTES PARA
USTED.
LLEVE EST A DEMANDA A UN ABOGADO INMEDIA T AMENTE. SI USTED NO
TIENE 0 NO CONOCE UN ABOGADO, V A Y A 0 LLAME A LA OFlCINA EN LA
DIRECCION ESCRITA ABAJO PARA AVERIGUAR DONDE PUEDE OBTENER
ASISTENCIA LEGAL.
Lawyer Referral Service of the
York County Bar Associatioll
York County Bar Center
137 East Market Street
York, PA 17401
Tel~rono No, (717) 854-8755
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HILADELPHIA STEAKS & HOAGIES, INC"
Plaintiff
Civil Action. Law
Action in Trespass
VS,
NO,
ARLO PALUMBO, TDBA PALUMBO'S PIZZA,
Defendant
COMPLAINT FOR ACTION IN TRRC;;PASS
AND NOW, TO WIT, this 't,).. day of \)'I'''''~ ,1995 comes the Plaintiff,
hiladelphiaSteaks & Hoagies, Inc., by their attorneys, ANSTINE, SPARLER & KAUFFMAN,
d files the within complaint as follows:
I. The Plaintiff, Philadelphia Steaks & Hoagies, Inc., is a Pennsylvania corporation
ith offices at 4401 Carlisle Pike, Camp Hill, Cumberland County, Pennsylvania,
2, The Defendant, Carlo Palumbo, is an adult individual with offices at 4729 Olrl
ettysburg Pike, Mechanicsburg, Cumberland County, Pennsylvania.
3. The Defendant, Carlo Palumbo, trades and does business as Palumbo's Pizza, a
[izza restaurant.
4. On or about September 14, 1993, the Defendant did execute a Promissory Note
'n favor of Plaintiff, Philadelphia Steaks & Hoagies, Inc., in the amount of Fourteen thousami
ollars ($14,000.00), (see Exhibit "1" attached hereto),
5. This Promissory Note was executed in conni:ction with the purchase of a business
from the Plaintiff by the Defendant, Carlo Palumbo, said business being located at 4729 Old
Gettysburg Pike, Mechanicsburg, Cumberland County, Pennsylvania.
6, The terms of said Promissory Note required payment of One thousand dollars
($1,000.00) per month for fourteen (14) months with interest accruing at a rate of Nine percen'
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?.; Since September 14, 1993, the Defendant has made no payments on said Note
espite numerous requests by the ~Iaintiff for 'said payment,
8. Defendant is in default on said Promissory Note.
9, The said Promissory Note includes a clause requiring payment of Fifteen percent
15 %) allomey's fees,
WHEREFORE, Plaintiff demands judgement is it's favor and against Defendant, Carlo
alumbo as follows:
(A) Fourteen thousand dollars ($14,000.00) principal;
(B) Interest in the amount of Two thousand nine hundred and twelve
dollars and ninety cents ($2,912.90) from September 14, 1993 through
November 14, 1995, plus interest in the amount of One hundred twenty-
four dollars seventy-five ($ 124. 75) cents per month from November 14,
1995 to the date of judgement;
(C) Allomey's fees in the amount of Two thousand one hundred dollars
($2,100.00) as per the Promissory Note;
(D) Cost of suit.
Respectfully Submilled,
ANSTINE, SPARLER & KAUFFMAN
ate: \Cl-l~ (q 5'
By:
John R. Elliott, Esquire
!47 East Market Street
York, PA 17401
(717) 846-8811
I.D, No. 50198
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VERIFICATION
I, Joseph D. Kowalczyk of philadelphia Steaks & Hoagies, Inc.,
Plainti~, hereby verify the facts as set forth in the foregoing
complain't for Action in Trespass, as being true and correct. I
understand that false statements herein are made subject to the
penalties of 18 Pa.C.S, Section 4904 relating to unsworn
falsification to authorities.
Date:
S'
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Jkfseph ,Kowalczyk
Philadelphia steaks & Hoagies,Inc,
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::,pqrler &
KIIl1ffmllll
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COMMERCIAL LEASE
THIS LEASE AGREEMENT, made the Jp" day of }l'fJV,[,..,g1l1t. , One Thousand
Nine Hundred Ninety-Three (1993). between CHARLES N. DITMER, ~R, and SUSAN M.
DITMER, his wife, of 412 Cocklin Street, Mechanicsburg, Cumberland County, Pennsyl-
vania, hereinafter referred to as Lessor. and CARLO PALUMBO, of Hampden Centre,
4930 Carlisle Pike, Suite 100. Mechanicsburg, Cumberland County, Pennsylvania,
hereinafter referred to as Lessee,
WIT N E SSE T H:
That Lessor hereby leases to Lessee and the latter lets from the former. the
premises situate at 4729 Old Gettysburg Road. Mechanicsburg. Pennsylvania. 17055,
in Lower Aller. Township, Cumberland County, Pennsylvania. consisting of a building
and surrounding tract of land containing approximately eight-tenths of an acre.
said property being further described by a survey map attached hereto as Exhibit "A"
which has outlined thereon by means of a yellow line the outer perimeter of the
premises, WITIl TIlE EXCEPTION OF OF THE BUILDING KNOWN AS THE "NEWS & CRUISE BUILDING",
said property hereinafter referred to as "The Premises". for the term of ten
(10 ) years beginning on the 1st day of Octcber. 1993, and ending on the 30th day
of September, 2003, at the rent of One Taousand Five Hundred and 00/100 ($1,500.00)
Dollars for the first twenty-four (24) months, One Thousand Seven Hundred Twenty-
Five and 00/100 ($1.725.00) Dollars for the second forty-eight (48) months and
One Thousand Nine Hundred and 00/100 ($1.900.00) Dollars for the remaining forty-
eight (48) months. This letting is upon the following conditions, covenants and
agreements:
1. Lessee agrees to pay Lessor the monthly rent set forth above on the
first day of each month, in advance.
2. In addition to said monthly rent, Lessee shall pay to Lessor the sum
of One Thousand Five Hundred and 00/100 ($1,500.00) Dollars security deposit,
said payment to be made on or before October 1, 1993.
3. At the end of ten (10) years, Lessee has the option to renew said Lease,
but said terms of Leese, including but not limited to monthly rent, must be
negotiated at that time, and be agreeable to both Lessor and Lessee,
4. Lessee may use The Premises only for a commercial pizza restaurant,
and for no other purposes, and may not assign this Lease or sublet The Premises.
Furthermore, Lessee specifically agrees that The Premises will not be used by
the Lessee or by any invitees of Lessee, for any unlawful purposes, nor will
Lessee allow any unlawful activities to take place in or upon The Premises.
5. Should The Premises be sold by Lessor during the term of this Lease.
the Lease terms in effect at the time of such sale shall continue in effect for
the term of the Leese regardless of change of ownership,
6. Lessor and Lessee incorporate the addendum to this Lease, which is
attached hereto, as a part of the terms and conditions of said letting.
" .'
1 - DAHAGES FOR DEFAULT
Lessee agr'ees to pay as rent, in addition tll the minimum rental hereln
reserved, any and all sums which may become due by reason of the failure of
Le,see to comply with all of the covenants of this Lease and any and all
da~3ges. costs and axpenses which the Lessor may suffer or incur by reason
of 'any default of the Lessee or fa11ure on his part to comply with the
covenants of this Lease, and each of them. and also any and all damages to
thp demised premises caused by any act or neglect of 'the Lessee,
Furthermore I Lessee shall be liable for damages if the Lessee should vacate
or:prepare to vacate or attempt to vacate from the premises hereby leased
before the expiration of the term or at any time during the continuance of
this Lease.
2 - TAXES
Lessor agrees to pay all real estate taxes for said premises durinn
the term or terms of occupancy of said premises by Lessee, All other taxes
and fees for said premises related to Lessee'.!! business, while said premises
are lE:ased by Lessee. shaH be the sole responsibility of Lessee,
3 - MAINTEHANCE OF PREMISES BY LESSEE
The Lessee agrees to keep the premises in a good condition of repair,
All. refuse of any kind shall be removed from the premises at the cost of the
Le~see at least once a week or oftener, if need be, Should the Lessee fail
to:comply with the provisions of this clause of the Lease, the Lesaor may
en~er the premises and make said repairs or remove said refuse and do all
otper things as herein provided to be done by the Lessee at the expense of
the Lessee. and said expen,se thus incurred may also be collected as
ad~itional rent under the Lease.
4 - BANKRUPTCY BY LESSEE
In the event of the f 11ing of a Petition in Bankruptcy, whether
vo~untary or involuntary. by or against the Lessee herein, there shall
become due immediately upon the filing of said Petition the right by Lessor
to forfeit and.terminate this Lease. The said forfeiture is to be effected
by Sivins notice in writins tll the Lessee herein or to the person then in
charge of the demised premises. .
ADDENDUM - 1
5 - FI~E ON PREMISES
In the event that the premises occupied by the Lessee shall during
,aid eerm be destroyed by fire, thereby making the premises untenantable and
"nHt fer occupancy so thae the olmer thereof deems it advisable to
~onstruce a new building, buth the Lessor and Lessee herein shall thereupon
\lave the right to cancel and terminete this Leasa upon giving fifteen days'.
~oeice in writing co the other party herain, end the term of chis Lease
,hall thereupon cease at the eKpiration of fifteen days after the eKpiration
!If said notice, In the event, however, that the said building shall be
~am~Jed by fire I bue nut d..stroyed, the Lessor will thereupon cause the same
fO 0", repaired and reseoted to its former condition, then to act with the
~reaeest possible diligence, and, if the said fire shall have rendered the
pre~i~es untenantable, payment of rent thereunder shall be suspended from
~he time when the Lessee herein shall notify the Lessor of such condition,
IIntil such eime as the building 15 so repaired and again ready for
qccupancy, and the Lessee herein agrees that in the event that the building
,hall be so partialll destroyed by fire as to render said repairs neeessary
~hat the said Lessor shall thereupon have the right through his servants and
~gent' sand, that the servants and agents of any contractor employed by the
~essor- shall thereupon have the right to take possession of the premises for
the purpose of making such repairs, and the so taking of possession shall
not be an eviction of the Lessee herein and shall in no manner effect this
~erm of Lease. In the event thae Lessor is unable to repair the buildins
on the premises within three months of a fire to said building, Lessee shall
have the right to terminate this Lease,
6 - EJECTMENT
At the end of the said term, whether the sa~e shall be determined by
forfeiture or expiration of the term, or upon the breach of any of the
conditions of this Lease, it 1S agreed that ,an amicable action of ejectment
~y be entered in the Court of Common Pleas of Cumberland County, in which
~\1e Lessor, his heirs or ~ssigns, shall be Plaintiff and the Lessee, and all
w~o come into possession during the term or continuance of this Lease, or
upder the Lessee, shall be Defendant, that j~dgment may be entered upon in
f~vor of the Plaintiff, without leave of Court, for the premises above
d~scribed to have the same force and effect as if a Summons in Ejectment
h~d been regularly issued, legally served and returned and that Writs of
Hpbere Facias Possessionem with clause of Fiere Facie for all costs, may be
ifsued forthwith, waiving all errors and defects whatsoever in entering
sgid judgment, also waiving right of appeal, Writ of Error or stay upon any
Ilrits of Habere Facias which may issue upon the same,
ADDENDUH - 2
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7 - RICIlT OF ENTRY'
And further, it is agreed and understood that the Lessor, his heirs,
or assigns, may enter the preMises hereby leased at any tiMe during the
~erM, either in the presence or absence of the said Lusea, for tne purpose
of ascertaining whether the said preMises are kept in good order and repair
.'
8 - DAJolAGES TO PRE~lSES
All daMages done to the said preMises other than those caused by fire
or ordinary wear and tear or by the acts or omission of the landlord shall,
~nless otherwise stated in the instant Lease, be repaired by the Lessee
~erain. And the Lessee covenants and agrees to make said repairs upon five
~ays'_notice ~lven to hlm by the Lessor, and if he shall, ne81~ct to make
~aid repairs or commence to make the same promptly or within ten days after
said notice as given hi~, the Lessor shall have the .ight to make the said
repairs at the expense and cost of the Lessee, and 'the aMount thereof May
be collected as additional rent accruing for the month following the date
of the said repairs, and if the said expense is made at the expiration of
the terlll, then the cost so Made May be collected by the landlord as an
additional rent for the use of the preMises during the entire term, Lessor
shall be responsible for carrying casualty insurance for the structure on
said premises for the life of the Lease, Lessee shall be responsible for
carrying contents insurance for said structure for the life of the Lease,
9 - SURRENDER OF PREHlSES
And the said Lessee hereby accepts notice to quit, vacate from and
surrender up possession of the said demised premises to the said Lessor, his
heirs or assigns, at the expiration of the said term, whenever it may be
determined, whether by forfeiture or otherwise, without any further notice
to that effect, all further notice being hereby waived, And on failure to
pay rent due, for the space of ten days besides the distress, or upon breach
of any other condition of this Lease, the Lessee shall be a non-tenant,
subject to dispossession by the said Lessor, without further notice or
p~ucess of law, with release of error and of damages, and the said Lessor
lIlay re-enter tile premises and dispossess the Lessee without thereby becoming
~ trespasser. And the Lessee hereby waives the benefit of all exemption
l;lws of this COCllllonwealth that now are in force or may her~after be in
ADDENDU}! - 3
.. ..
. ,.
for~e, or in any ~ction or actions that may accrue on this contract, and in
any d1atress or distress that may be made for collllcticm of the whole of
&aU rent or any pan thereof, Waiving also the benefit of stay of
exe~ution, inquisition, extension, and all errors, in all proceedings
ari~ing out of this Lease,
10 - LIASI~ITY FOR DAMAGE
And in consideration of securinll the within Lease, at the above stated
reqt, said Lessee does hereby release and discharge said Lessor, his heirs
or 'assigns, frolll any and all liability for damaaes that may result from the
bur'sting, stoppage and leakage of any water pipe, gas pipe, sewer, basin,
water-closet, steam pipe and drain, and from all liability for any and all
dalllage caused by the water, gas, ste3m, waste, and contents of said water
pipes, gas pipes, stealll pipes, sewers, basins, water-closets and drains.
EXC;llpt that Lessor shall be responsible for any and all liability for
dallll1lles from defects to said facilities if caused by negligence by Lessor
in ~aintaining said premises as indicated in Paragraph 17(b) of this Lease,
11 - FIXTURES
At the expiration of the terlll or terms of this Lease, Lessee shall
have tne right to remove all trade fixtures from the premises and claim them
as the property of Lessee. All other fixtures related to said demised
premises shall remain With the premises and become the property of Lessor,
If 'Lessee installs a furnace on said premises, said furnace constitutes a
fi'!ture which becomes the property of Lessor at the expiration of the
instant Lease.
12 - CONDEMNATION
In the event that the premises demised or any part thereof is taken
or condemned for a public. or quasi-public use, this Lease shall, as to the
part so taken, ter~inate as of the date title shall vest in the condemnor,
and rent shall abate in proportion to the square feet of leased space taken
or condemned or shall cease if the entire premises be so taken, In either
evert, the Lessee waives all claims against the Lessor by reason of the
complete or partial taking of the demised premises and it 1s agreed that the
Les,ee shall not be entitled to any notice whatsoever of the partial or
complete termination of this Lease by reason of the aforesaid.
ADDENDUM - 4
. t. .
L3 - RENTAL PA'OIEllTS
All rental payments made pursuant to the instant Lease are to be
mailed to Lessor st the following address:
Charles N. Ditmer, Jr.
412 Cocklin Street
llechanicsburg, PA 17055
14 - CONFESSION O~' JUDGlIENT
Upon default hereunder the said Lessee hereby confesses judgment for
the rent reserved under this Agreement of Lease, together with an attorney
fee of fifteen percent for collection, and execution may be issued thereon
~rolll time to time for allY rent due and owing under this Lease, and judgment
in ejectment as herein provided may be entered concurrently therewith,
15 - SPECIFIC RESPONSIBILITIES OF TENANT
PR~:mSES EXPENSES
-
a) Lessee agrees to pay all expenses for eaid premises for trash
collection, gas, oil heat, electricity, water and sewage while Lelsee
leases said premises.
CLE.~NI:IG AND REPAIRING
b) Lessee agrees to keep the demised premises clean and free from all
ashes, dirt and refuse matt-er; replace all glass windows, doors, etc"
broken; keep all waste and drain pipes open; repair all damage to
plumbing and to the prelllises in general; keep the same in good order
and repair as they 'now are, reasonable wear and tear and damage by
accidental fire or other casualty not occurring through negligence of
Lessee or those employed by or acting for Lessee alone excepted, The
Lessee egrees to surrender the demised premises in the same condition
in which Lessee has herein agreed to keep the same during the
continuance 0 f this Lease, Lessee also agrees to maintain the grounds
of the demised premises including cutting grass and shrubbery on said
premises. Lessee is iiable for all accidents on the leased premises
due to Lessee' ~ iai lure to ke.:!p the premises in a cl.ean and safe
condi tion.
ADDENDUM - 5
. T',~'.". ".,..' ;:_".",.,..,.
t .. I
REQUIREMENTS OF PUBLIC AUTHORITIES
c) Lessee agrees to comply with any requirements of the constituted
public suthoritiee, and with the torms of any State or Federal Statute
or Local Ordinance or Regulation applicable to Lessee or his use of
the demised premises, and save Lessor harmless from penalties, fines,
costs or damages resulting from failure to do so.
FIRE
d) Lessee agrees to use every reasonable precaution against fire.
SURRENDER OF POSSESSION
e) Lessee agrees to peaceably deliver up and surrender possession of
the demised premises to the Lessor at the expiration or sooner
termination of this Lease, promptly delivering to Lessor at his office
all keys for the demised premises.
CONDITION OF PAVEMENT
f) Lessee shall be responsbile for the condition of the pavement,
curb, cellar doors, awnings and other erections. in the pavement during
the term of this Lease; and shall be. and hereby agrees that Lessee
is solely liable for any accidents, due or alleged to be due to their
defective condition, or to any accumulation of snow and ice in any
area of said premises.
UNDERGROUND TANKS
g) Lessor asserts that there are no underground oil or gas tanks on
the premises. Nor are there any hazardous wastes on the premises to
the best of Lessors' knowledge. information and belief.
16 - SPECIFIC RIGHTS OF TENANT
ADVERTISING
a) Lessee shall have the right to use a signpost on premises owned
by Lessor adjacent to Lessee's leased premises which is marked with
a red circle on Attached Exhibit "A". Said signpost is to be used by
Lessee for advertising purposes, Lessee is required to share said
signpost with other future tenants of Lessor who occupy adjoining
properties.
ADDENDU~1 - 6
. .. ,
MAINTENANCE
b) Lessee has the right to trim or remove any overgrown foliage on
adjoining real property owned by Lessor. The purpose of said main-
tenance work by Lassee is to ensura visibility by the public of the
leased premi~es. Such maintenance work is subject to the approval
of Lessor, but said approval may not be unreasonably withheld.
CHANGE TO PREMISES
c) Lessee has the right to modify or improve the facilities and
buildings on the demised premises during the term or terms of this
Lease subject to the prior approval of Lessor, which approval shall
not be unreasonably withheld,
17 - SPECIFIC RESPONSIBILITIES OF LESSOR
MAINTENANCE OF PREMISES
a) Lessor agrees to maintain in good repair at his expense the
following facilities of the demised premises during the term or
terms of this Lease:
i) Roof of building
ii) Foundation to building
iii) Exterior walls of building
iv) Downspouts and gutters of building
v) Well on property
ADDENDUM - 7
-. .
IN WITNESS WHEREOF, the parties hereto have executed these presents the
day and year first ~bove written, and intend to be legally bound thereby:
WlTN"fit,9 fL
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~(;n 111, 1.'\J.,t??UL/
SUSAN M. DITMER; LESSOR
~d'kLL
CARLO PALUMBO, LESSEE
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191
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
PHILADELPHIA STEAKS & HOAGIES, INC.,
Plaintiff
Civil Action - Law
Action in Trespass
VS.
NO. 95-7096
CARLO PALUMBO, TDBA PALUMBO'S PIZZA,
Defendant
PRAECIPE FOR ENTRY OF JUDGEMENT OF DEFAULT
To the Prothonotary:
Please enter judgement of default in favor of Plaintiff, Philadelphia Steaks and
Hoagies and against defendant, Carlo Palumbo, tdba Palumbo's Pizza, for defendant's
failure to plead to the complaint in this action within the required time, The complaint
contains a notice to defend within 20 days from the date of service thereof. Defendant
was served with the complaint on December 15, 1995, and defendant's answer was due
to be filed on January 4, 1996.
Attached as Exhibit" A. is a copy of plaintifrs written Notice of Intent to File a
Praecipe for Entry of Default Judgement, which I certify was mailed by regular mail to
the defendant at his last known address and to his attomey of record on January 5, 1996,
which is at least 10 days prior to the filing of this Praecipe.
Please assess damages in the amount of $19,012.90, being the amount demanded
in the Complaint.
Respectfully Submitted,
ANSTINE, SPARLER & KAUFFMAN
Date:
By:
n R. Elliott, Esquire
II East Market Street
York, PA 17401
(717) 846-8811
J.D. No. 50198
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PHILADELPHIA STEAKS AND
HOAGIES,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,
PENNSYLVANIA
v,
No. 95-7096
CARLO PALUMBO, TDBA
PALUMBO'S PIZZA,
Defendant
ClvlI Action - Law
TO: Carlo Palumbo
Date of Notice: January 5, 1996
IMPORTANT NOTICE
YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO TAKE
ACTION REQUIRED OF YOU IN THIS CASE. UNLESS YOU ACT WITHIN TEN
DA YS OF THIS NOTICE, A JUDGMENT MAYBE ENTERED AGAINST YOU
WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER
IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT
ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR
TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET
LEGAL HELP:
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CUMBERLAND COUNTY BAR ASSOCIATION
CUMBERLAND COUNTY COURT HOUSE
I COURTHOUSE SQUARE
CARLISLE, PENNSYLVANIA 17013
(717) 240-6100
jt~~
n R. Elliott, UIRE
A S11NE, 'PARLER & KAUFFMAN
117 East Market Street
York, PA 17401
EXHIBIT -A-
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I CERTIFY THAT A COPY OF THIS NOTICE HAS BEEN SENT BY ORDINARY MAIL
ON THE DATE ABOVE GIVEN TO THE NAMED DEFENDANT AND TO
DEFENDANT'S ATrORNEY OF RECORD, IF ANY EXISTS, AS OF THE DATE
THEREOF.
iri'" Q L~7~
J It1 R. Elhott, ESQUIRE
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PHILADELPHIA STEAKS AND
HOAGIES.
Plaintiff/Respondent
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY.
PENNSYLVANIA
v.
CIVIL ACTION - LAW
CARLO PALUMBO. TOM
PALUMBO'S PIZZA,
Defendant/I)etltloner
NO. 95-7096
NOTICE
You have been sued In Court. If you wish to defend against the claims set forth in the
following pages. you must take nctlon within twenty (20) days after this Complaint and Notice
are served by enterlngn written appenrnnce personally or by an attorney and filing in writing
with the Court. your defenses or objections to the claims set forth against you. You are warned
that if you fnll to do so, Ihe case may proceed without you and a judgment may be entered
against you by Ihe Court without further notice for any money claimed in the Complaint or for
any other claim or relief' requested by the Plaillliff. You may lose money or property or other
rights Important to you.
YOU SIIOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT IIA VE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
CUMBERLAND COUNTY BAR ASSOCIATION
CUMBERLAND COUNTY COURT HOUSE
1 COURTHOUSE SQUARE
CARLISLE. PENNSYLVANIA 17013
(717) 240-6100
AlIs/ille&
Sparler
A..._...'l..
PHILADELPHIA STEAKS AND
HOAGIES,
Plaintiff/Respondent
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY.
PENNSYLVANIA
v.
CIVIL ACTION - LAW
CARLO PALUMBO, TDBA
PALUMBO'S PIZZA.
Defendant/Petitioner
NO. 95-7096
A VISO
USTED HA SIDO DEMANDADO EN LA CORTE. Si usted desea defenderse de las
quejas expuestas en las paginas siguienles. debe tomar acci6n dentro de veinte (20) dfas a partir
de la fecha en que recibi6 la demanda y el aviso. USled debe presentar comparecencia escrita
en persona 0 por abogado y presenlar en la Corte por escrito sus defensas 0 sus objeciones a las
demandas en su contra.
Se Ie avisa que si no se defiende, el caso puede proceder sin usted y la Corte puede
decidir en su contra sin mas aviso 0 notificaci6n por cualquier dinero rec1amado en la demanda
o por cualquier otra queja 0 compensaci6n reclamados por el Demandante. USTED PUEDE
PERDER D1NERO, 0 PROPIEDADES U OTROS DERECHOS IMPORTANTES PARA
USTED.
LLEVE ESTA DEMANDA A UN ABOGADO INMEDlATAMENTE. SI USTED NO
TIENE 0 NO CONOCE UN ABOGADO. VA Y A 0 LLAME A LA OFICINA EN LA
D1RECCION ESCRITA ABAJO PARA AVERIGUAR DON DE PUEDE OBTENER
ASISTENCIA LEGAL.
CUMBERLAND COUNTY BAR ASSOCIATION
CUMBERLAND COUNTY COURT HOUSE
1 COURTHOUSE SQUARE
CARLISLE, PENNSYLVANIA 17013
(717) 240-6100
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PHILADELPHIA STEAKS AND
HOAGIES,
Plaintiff/Respondent
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION
v.
CARLO PALUMBO, TDBA
PALUMBO'S PIZZA
Defendant/Petitioner
No. 95-7096
RESPONDENT'S ANSWER.TO PETITION TO STRIKE
OFF OR OPEN CONFESSED JUDGMENT OF DEFAULT JUDGMENT
IN STAY EXECUTION PROCEEDINGS
AND NOW TO WIT this .Jrd. day of ~1l:M1 f.NJJ , 1997
comes the Respondent, Philadelphia Steaks and Hoagies, by their
attorneys Anstine & Sparler who file this Answer to petition as
follows:
1. Admitted,
2. Admitted in part, denied in part. The correct address
for Philadelphia Steaks & Hoagies is 8 Elmhurst Road, Camp Hill,
Pennsylvania 17011.
3. - 7. Admitted.
HQI10N TO STRIKE JUDGMENT
8. - 12. Admitted. By way of further answer Respondent would
note that this was Judgment by Default not Judgment by Confession.
13. Admitted in part, denied in part. It is admitted that
the Notice to Plead attached to the initial Complaint did refer to
the York County Bar Association. However, it is noted that the
Complaint in for Action in Trespass itself contained the correct
AII~till~& caption. In addition, the ten (10) day Notice executed pursuant to
~parler
..-..._."'-'1.....
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,
Pennsylvania Rule of Procedure 237,1 which was mailed to Defendant
on January 5, 1996 contained the correct name and address for the
Cumberland County Bar Association. (Exhibit "B" attached hereto)
14. Denied. It is denied that Respondent's Notice to Defend
entered in this matter is irregular and/or defective.
To the
contrary Respondent's Notice to Defend complied in every way with
Pennsylvania Rule of civil Procedure 1018.1,
Respondent
inadvertently listed the York County Lawyer Referral service rather
than the Cumberland County Lawyer Referral Service.
However,
Petitioner was not prejudiced by this cosmetic defect since (a)
petitioner is a sophisticated business person in whose name at
least one attorney has entered an appearance for prior civil action
(b) the Notice under Pa. R.C.P. 237.1 contained a correct
designation and Default Judgment was not entered against that
notice for at least thirty-eight (38) days after this Notice was
provided to Petitioner, and (c) as noted in the explanatory
comments to Rule 1018.1 "if Defendant should be served with a
Complaint in such another county, and if he should communicate with
the agency listed in the Complaint, he will either be helped
directly by that agency or he will be referred to the agency in his
own county." Pennsylvania Rules of Court (West Addition) page 67.
15. Denied. It is denied that the Promissory Note does not
indicate when payment is due. To the contrary the Promissory Note
indicates that installments were to be paid monthly for fourteen
(14) consecutive months.
16. Denied. It is denied that the Promissory Note does not
AII~tille&
sparler
A..._......t....
indicate what consideration was received,
To the contrary the Note
17. Denied,
It is denied that Respondent's Complaint in
states "for value received" which is sufficient consideration under
the laws of the Commonwealth.
Trespass does not state a cause of Action to which relief can be
obtained. To the contrary Respondent's action sets forth a promise
and breach/default of a promise which is sufficient legal grounds
for a Judgment,
18, Admitted.
19. Denied. It is denied that the Respondent did not own a
business at 4729 Old Gettysburg Road, Cumberland County,
Pennsylvania and therefore could not sell the business. To the
contrary while the real estate was owned by a third party, the
restaurant, fixtures and lease were owned by the Respondent and
were the basis of the contract between the Respondent and the
Petitioner.
20. Admitted.
WHEREFORE, Respondent requests Judgment in his favor and
against the Petitioner and moves that the petition be struck.
PETITION TO OPEN DEFAULT JUDGMENT
21. Admitted.
22. Denied. It is denied that the terms of the Promissory
ote were not completed at the time it was executed by the
Petitioner. To the contrary all terms, conditions and changes to
the Promissory Note were made prior to the Petitioner affixing his
signature and were accepted by Petitioner.
23. Denied. It is denied that the Petitioner did not receive
Allstille 8< a copy of the Note when he signed his documents. To the contrary
Sf~a!}::L&It
a copy of the Note was provided to the Petitioner, There was no
disclosure form provided nor was any required.
24. Denied, It is denied that the purported document does
not indicate when the payments are to begin or cease.
To the
contrary the document is very clear that payments are to begin on
execution of the Note fourteen monthly payments were to be paid and
then the Note would be satisfied.
25. Denied.
It is denied that Respondent did not advise
counsel prior to petitioner signing Note.
To the contrary
petitioner as to when the first payment was to be made. To the
contrary there was significant conversation between petitioner and
Respondent during when time petitioner indicated that he simply did
not have the money to pay the Note.
26. Denied. It is denied that Respondent did not give the
petitioner an opportunity to seek or consent with independent legal
Petitioner had every opportunity to consult with anyone he chose
prior to signing the note, His failure to do so is not the fault
of the Respondent.
27, Admitted.
28. Denied. It is denied that the Note was not supported by
adequate consideration. To the contrary the petitioner received
restaurant equipment and a favorable lease with a value greater
than that indicated on the Note.
WHEREFORE, Respondent requests that this Court dismiss this
Petition,
AlIstillr&
Spar/a
A",,_.,.,l.w
PETITION TO STAY EXECUTION PROCEEDINGS
29. Admitted.
Arr1.1irre&
:;f.a!.'~:""
30, Denied.
It is denied that Petitioner's waiver of due
process rights of notice and hearing were not voluntarily
intelligently and knowingly waived. To the contrary the Defendant
was given every opportunity to defend through service of the
Complaint and the ten day notice under Rule 237.1,
By way of
further answer Judgment was entered against the Defendant on
February 13, 1996 and Petitioner failed to act to open this
Judgment until eighteen months post entry,
31. Denied, It is denied that the pleading was defective on
its face. To the contrary any such defect was cosmetic at best,
was remedied by the ten day notice and is inconsequential since the
Notice to Plead did dir~ct Defendant to a legal services agency
which would have provided assistance had he elected to call.
32. Denied. It is denied that the Respondent's efforts to
execute on Petitioner's property should be stayed pending
resolution to this Petition. To the contrary this petition should
be dismissed since there were no substantive defects in the
pleading, since this was not a Confession of Judgment but was
rather a Default Judgment, since the Petitioner complied with all
procedural requirements of a Default Judgment and since petitioner
did nothing with the Default Judgment for eighteen months.
WHEREFORE, Respondent respectfully requests that this Court
dismiss the Petition to Stay Execution in this case.
New Matter
33. petition to open a Default Judgment is based on the
equitable powers of the Court.
34. Petitioner had Notice that a Default Judgment was to be
Ans'int&
~~!};:lM
entered against him on or about January 5, 1996.
35, Judgment was entered against Defendant by the
Prothonotary of the Court of Common Pleas of Cumberland County,
Pennsylvania on February 13, 1996.
36, Defendant did not move to open or strike the Default
Judgment until August 14, 1997, eighteen months after the Judgment
was entered.
37. Defendant is estopped from opening this Default Judgment
by its failure to exercise due diligence in protecting its rights
and to timely file a petition to Open.
WHEREFORE, Respondent requests that Petition of Defendant be
dismissed.
Respectfully Submitted,
ANSTINE & SPARLER
Date: (f! )47
By: 'i7
Joh . Eliott, Esquire
117 ast Market Street
Yor , PA 17401
(717) 846-8811
1.D. No. 50198
VBRIFICATION
I, Joseph D, Kowalczyk of Philadelphia Steaks & Hoagies, Inc"
Plaintiff, hereby verify the facts as set forth in the foregoing
Answer to Petition to Strike Off or Open Confessed Judgment in Stay
of Execution Proceedings, as being true and correct. I understand
that false statements herein are made subject to the penalties of
18 Pa.C.S. Section 4904 relating to unsworn falsification to
authorities.
Date:
q I ~q7'
Philadelphia Steaks & Hoagies,
Inc.
sv
Allitillt&
:;varla
A"'__"Alt-o.
PHILADELPHIA STEAKS AND
HOAGIES,
Plaintiff/Respondent
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION
v.
CARLO PALUMBO, TDBA
PALUMBO'S PIZZA
Defendant/Petitioner
No. 95-7096
CERTIFICATE OF SERVICE
I certify that I am this day serving a copy of Plaintiffs Answer to Petition to Strike
Off or Open Confessed Judgment of Default Judgment in Slay Execution Proceedings upon
the person(s) and in the manner indicated below, which service satisfies the requirements of
the Pennsylvania Rules of Civil Procedure ~ 440.
Service by First Class Mail addressed as follows:
Austin F. Grogan, Esquire
24 N. 32nd Street
Camp Hill, PA 17011
Date: q ("$ Jq'7
ANSTINE & SPARLER
B"~ rv<L
R. Elliott, Esquire
117 East Market Street
York, PA 17401
(717) 846.8811
I.D. No. 50198
An~tinr &<
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~SEP 0 8 1997
-
v,
IN THE COURT OF COMMON PLEAS OF
YORK COUNTY, PENNSYLVANIA
CIVIL ACTION. LAW
NO.
PHILADELPHIA STEAKS AND
HOAGIES,
Plaintiff
CARLO PALUMBO, TDBA
PALUMBO'S PIZZA,
Defendant
H {h-- 709~ r,{~~l ,j~(,W-
.-
NOTICE
.-
You have been sued in Court. If you wish to defend against the ctaims set forth in t le
following pages, you must take aclion within twenty (20) days after this Complaint and Notice
are served by entering a written appearance pelsonally or by an attomey and filing in writing
with the Court, your defenses or objections to the claims set forth against you. You are Wlll'"ed
that if you fail to do so, the case may proceed without you and a judgment may be ente. ed
against you by the Court without further notice for any money claimed in the Complaint or ;'or
any other claim or relief requested by the Plaintiff. You may lose money or property or otller
rights important to you,
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE, IF YOU no
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE 1 liE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELl',
Lawyer Referrnl Service of the
York County Bar Association
York County Bar Center
137 East Market Street
York, PA 17401
Phone: (717) 854-8755
A"'ilillt',
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K/lllrrll/all
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PHILADELPHIA STEAKS AND
HOAGIES,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
YORK COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v,
CARLO PALUMBO, TDBA
PALUMBO'S PIZZA,
Defendant
NO.
AVISO
USTED HA SIDO DEMANDADO EN LA CORTE, Si usled desea defenderse de las
quejas expuestas en las ~ginas siguientes, debe lomar acci6n dentro de veinte (20) d{as a partir
de la fecha en que recibi6 la demanda y el aviso. USled debe presentar comparecencia escrita
en persona 0 par abogado y presentar en la Corte par escrito sus defensas 0 sus objeciones a las
demandas en su contra.
Se Ie avisa que si no se defiende, el caso puede proceder sin usted y la Corte pUlde
decidir en su contra sin mas aviso 0 nOlificaci6n par cualquier dinero reclamado en ]a demll1da
o par cualquier olra queja 0 compensaci6n reclamados par el Demandanle, USTED PUEDE
PERDER D1NERO, 0 PROPIEDADES U OTROS DERECHOS IMPORTANTES PARA
USTED,
LLEVE ESTA DEMANDA A UN ABOGADO INMEDlATAMENTE. SI USTED NO
T1ENE 0 NO CONOCE UN ABOGADO, V A Y A 0 LLAME A LA OFICINA EN LA
D1RECCION ESCRITA ABAJO PARA A VERIGUAR DONDE PUEDE OBTENER
ASISTENCIA LEGAL.
Lawyer Referral Service of the
York County Bar AssocIation
York County Bar Center
137 East Market Street
York, PA 17401
TelEfono No, (717) 854-8755
,".l. .
N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY , PENNSYLVANIA
HILADELPHIA STEAKS & HOAGIES, INC.,
Plaintiff
Civil Action . Law
Action in Trespass
VS,
NO.
ARLO PALUMBO, TDBA PALUMBO'S PIZZA,
Defendant
COMPLAINT FOR ACTION IN TRESPASS
AND NOW, TO WIT, this 4 day Of\:yl''''~ ,1995 comes the Plaintiff,
hiladelphiaSteaks & Hoagies, Inc., by their allomeys, ANSTINE, SPARLER & KAUFFMAN,
d files the within complaint as follows:
1. TIle Plaintiff, Philadelphia Steaks & Hoagies, Inc" is a Pennsylvania corporation
ith offices at 4401 Carlisle Pike, Camp Hill, Cumberland County, Pennsylvania.
2. TIle Defendant, Carlo Palumbo, is an adult individual with offices at 4729 Olrl
ettysburg Pike, Mechanicsburg, Cumberland County, Pennsylvania.
3. TIle Defendant, Carlo Palumbo, trades and does business as Palumbo's Pizza, a
4. On or about September 14, 1993, the Defendant did execute a Promissory Note
n favor of Plaintiff, Philadelphia Steaks & Hoagies, Inc., in the amount of Fourteen thousanti
ollars ($14,000,00). (see Exhibit "I" attached hereto),
5. TIlis Promissory Note was executed in connection with the purchase of a business
from the Plaintiff by the Defendant, Carlo Palumbo, said business being located at 4729 Old
Gettysburg Pike, Mechanicsburg, C..mberland County, Pennsylvania.
6. TIle terms of said Promissory Note required payment of One thousand dollars
AII.lim'
Sl~rrh'r {.
Kil/lfflllllll
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($1,000.00) per month for fourteen (14) months with interest accruing at a rate of Nine percen'
- .."" "
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%) per annum on the unpaid balance,
7. Since September 14, 1993, the Defendant has made no payments on said Note
espite numerous requests by the Plaintiff for said payment,
8. Defendant is in default on said Promissory Note,
9. The said Promissory Note includes a clause requiring payment of Fifteen percent
15%) attomey's fees.
WHEREFORE, Plaintiff demands judgement is it's favor and against Defendant, Carlo
alumbo as follows:
(A) Fourteen thousand dollars ($14,000.00) principal;
(B) Interest in the amount of Two thousand nine hundred and twelve
dollars and ninety cents ($2,912,90) from September 14, 1993 through
November 14, 1995, plus interest In the amount of One hundred twenty-
four dollars seventy-five ($124,75) cents per month from November 14,
1995 to the date of judgement;
(C) Attomey's fees in the amount of Two thousand one hundred dollars
($2,100,00) as per the Promissory Note;
(D) Cost of suit,
Respectfully Submitted,
ANSTINE, SPARLER & KAUFFMAN
ate: \d-l~(q5'
By:
J n R, Elliott, Esquire
7 East Market Street
York, PA 17401
(717) 846-8811
I.D, No, 50198
99/91/1995 99:25
7177747916
)
'PRi'~
HARflISI3l..RG JETCENTER
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PROMI9BORV NOTIi
,
,
DATE.
9-I4-Q3,
F'OR VALUE RECEIVE-II,
C!Arl..
Upon de'aul t In thll PI'Onlpt and 'ull payment of ally
installment of prindpal or InterlL'.t on this Pronll!l.or:,. I~o:.~.,
the enHry unpaid pr illdpal here.;,f and lnter..t tlll".O:.1I ~o
the tJate of payment !lhall imnleLlla~ely become due .IId P")o'o1I'", ~
.at the op t I ':on and Lip."" d"mand <:0 f the Hol der her eo;., ,
Diligence, pren!!l1tmlPnt, demand, protlll!lt or n.:.t leI'! 0:01 n')/1"
pllyment or dillhon<:or wi th r.speo;t to;. this Promln!l<:ot y r'k,tl! iH 11
her.by waiV.d. In the eVfll1t lltlgo1lltion III neo;e!!!I"r)! t.:,
':<:ollll<:t "any !!ums dllt~ I.Indp.r thin Pr<:omlll.ary N<:ot., Hl!lk.r !!Ihllll
pay all cost. and ev,f'Ielll!e9 <:of Holder, in<:luding olItto;.rn"Y!I
r... 0' 1!5Y., .
The failure of the Ilolder hereof to eller>:!.s. allY 01 ltw
right. hereundlJr In IIIIY lnlltal1<:e shall 1I0t <:0115tlt
waiver tl1....of In that .:.. any othllr lrH.tanc.,
Mal,.r,
By
HUe
EXHIBIT "1"
PAGE 92
AI/~Iil/",
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KilI/JIi/klll
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, ,
VBRIrICATIOH
I, Joseph D. Kowalczyk of Philadelphia steaks & Hoagies, Inc.,
Plaintiff, hereby verify the facts as set forth in the foregoing
Complaint for Action in Trespass, as being true and correct, I
understand that false statements herein are made subject to the
penalties of 18 Pa.C.S, section 4904 relating to unsworn
falsification to authorities.
Date:
~<'~
"y K A,
,.1Oseph ,Kowalczyk
Philadelphia Steaks & Hoagies,Inc.
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IN TIlE COURt' OF CCM()N PLFAS OF CUHBEIUAND CllWl'Y , pENNSYLVl\NlA
ClVtL olVtSlOH
PtwX:IPE fOR WRIT OF EXB:t1l'ION
Captiall
I I
Ca1fesse4 Judpnt
I X) other
PHILADELPHIA STEAKS & HOAGIES, INC.
95-7096
$ 19,012.90
File No.
Arrount ~
, Intarest
lAtty'S Ccmn
I Casts
- 246.23
18'-71-
vs.
CARLO PALUMBO, TDBA PALUMBO'S PIZZA
TO 'l'HE PA:mIOlOrllRY OF THE SAIO COORT,
'1'ha WllSusigned henby certifies that the beJ.a,t does not aria. out of II retail
installmlnt sale, CllI\trDCt. or account based an II canfesslon of judlJllll\t, but if it cSaes,
i.t is llaS8d en the apprcpr1ate or;.ginal proc:eed.ilIg tiled pursuant to Act 7 of 1966 as
1Irl'end8d; and for real property ~t to Act 6 of 1974 lIS ~.
Issue writ of ex.c:utioo in the ebt:'Ve rMtter to the Shetiff of Cumberland
County, for debt, interest and costs '"'pon the following described property of the
det~t(S) all restaurant fixtures. eauinmenT. rRcn ~ag;c+a~ ~nn ~a~h ~ns~~tvr
rece~pts at Palumbo's Pizza 4729 Old Gettysburg Pike. Mechanicsbura. PA 17055
PRAEX:IPE lOR ATI'ACHM EXECUl'Iaf
Issue writ of attacbrent to the Sheriff of CllmhRrl Rnti County, for debt,
interest and a>su, a5 above, d.l.recting attlldmlnt against the above-nSnld gamislwels) for
the fOUawing p=perty (it real estate, supply six copies of the descriptlon; supply four
CI:lpies of lengthy personalty list) .
and all other property of the defendant( s I in the possession, custody or contrOl of the
said garniShee! s I.
! Indicate) Index this writ agains t the g=islleel:l) as a lis pendenII against
real estate of the defendant!sl desci.bed in the attac:hed 81Ct1ibit.~
DATE: ,he; )q7 Signature:~~ --
I / p , t ..- 'E .
r1.n 1~'lI;'. n SOUlre
Address: c/n Anq~inR ~ ~DRrlAr
117 E. Market St.. York. PA 17401
~ttorney Coc: Philadelphia Steaks & Hoagies, Inc,
'dl~prcne; (717) B46-BB11
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SHERIFF'S RETURN - REGULAR
CASE NO: 1995-07096 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
PHILADELPHIA STEAKS AND HOAGIE
VS,
CARLO PALUMBO ET AL
TIMOTHY REITZ
. ShlEPriff or DlEPputy ShlEPriff of
blEPing duly sworn according
CUMBERLAND County, PlEPnnsylvania, who
to law, says, thlEP within COMPLAINT
upon PALUMBO CARLO TIDIBIA PALUMBO'S PIZZA
dlEPflEPndant, at 1433:00 HOURS, on thlEP 15th day
1995 at 4729 OLD GETTYSBURG PIKE
MECHANICSBURG, PA 17055
was slEPrvlEPd
of DlEPclEPmblEPr
County. PlEPnnsylvania, by handing
ADULT IN CHARGE
a trulEP and attlEPstlEPd copy of thlEP COMPLAINT
toglEPthlEPr with NOTICE FOR ACTION IN TRESPASS
and at thlEP samlEP time directing His attention to thlEP contents therlEPof.
. CUMBERLAND
to SAL DIROBERTO, MANAGER AND
Sheriff's Costs:
DocklEPting
ServiclEP
Affidavit
SurcharglEP
18.00
6.72
.00
2.00
So answers:
~~- ~~~~
R. omas Kl1.nlEP IEPr1.
ANSTINE SPARLER AND KAUFFMAN
12118/~995 .,/ , 1~~~~
y I ~w"
....~...,..'~$ ,-' .
ijeputy 5hlEPr1.
S:lb.l:l
Sworn and sUbscrib~to before me
this ~-< day of ~~.. ")
19 'If, A.D.
n .." n fl.u i/l....~ w.z.'
. -r, i-r:Ol.honotart-r7
PHILADELPHIA STEAKS AND ,
,
HOAGIES, ,
,
Plaintiff I
.
,
v. .
,
,
,
CARLO PALUMBO, TDBA ,
,
PALUMBO'S PIZZA, I
Defendant I
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO, 95-7096 CIVIL TERM
AND NOW,
ORDER OF COURT
this z.,rLday of August, 1997,
following a telephone
conference with 'counsel, the Order of Court dated August 21, 1997,
in the above-captioned case, is AMENDED to provide that the posting
of bond or cash by Defendant must be within 15 days of the date of
the Order, August 21, 1997,
BY THE COURT,
J
John R, Elliott, Esq,
117 East Main Street
York, PA 17401
Attorney for Plaintiff
Austin F, Grogan, Esq,
24 West 32nd Street
Camp Hill, PA 17011
Attorney for Defendant
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PHILADELPHIA STEAKS AND
HOAGIES,
Plaintiff/Respondent
v.
CARLO PALUMBO, TDRA
PALUMBO'S PIZZA
Defendant/Petitioner
.
,
.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION
No. 95-7096
OBJECTIONS TO SHERIPP'S DETERMINATION
TO THE PROTHONOTARY:
Please enter objections to the Sheriff's determination of
ownership of the property which has been levied upon in this case.
Plaintiff requests that this Interpleader be set for trial.
Date: q (X(4.?
Anstine &
Sl~~~;.""
Respectfully Submitted,
ANSTINE
& SPARLER
e~
By:
John . Elliott, Esquire
117 ast Market Street
York, PA 17401
(717) 846-8811
I.D. No. 50198
,.......,'....._.,r.,-'--.._,;.,...
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.
VERIFICATION
I, Joseph D. Kowalczyk of Philadelphia Steaks & Hoagies, Inc.,
Plaintiff, hereby verify the facts as set forth in the foregoing
Objections to Sheriff's Determination, as being true and correct.
I understand that false statements herein are made subject to the
penalties of 18 Pa.C.S. Section 4904 relating to unsworn
falsification to authorities.
Date:
11<u~/f?
J::D
ph D. Kowalczyk
adelphia Steaks & Hoagies, Inc.
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R. THOMAS KLINE
Sheriff
RONNY R. ANDERSON
Chi., Dlpuly
HORACE A. JOHNSON
Solicitor
OFFICE OF THE SHERIFF
AUDREY O. ADAMS
Rill EIIII. Dlpuly
Court House
Carlisle, Pennsylvania 17013
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Philadelphia Steaks and Hoagies I~L:,
- vs- ~:: (I
Carlo Palumbo, tld/b/a Palumbo's Pi~ -::
No 95- 7096 Civil Term ~ 7?-.
Property Claim Determination
September 29, 1997
Dear Sir
Reference is made to Property Claim dated September 18, 1997 entered by
Antonio Palumbo and pertaining to Execution No. 95-7096 Civil Term
Philadelphia Steaks and Hoagies Inc. vs Carlo Palumbo, tld/b/a Palumbo's Pizza.
R. Thomas Kline Sheriff, has determined that the claimant Antonio Palumbo in
the abovementioned property claim is prima facie the owner of the property set
forth therein.
so~~~
R. Thomas Kline, Sheriff
ByPd. " .-IIa'/C-
Deputy Sheriff
cc: John Elliott for pitt:
C. Palumbo /Palumbo's Pizza deft
Antonio Palumbo claimant
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NOTICE OF PItOPERTY CLAIM
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Inc.
III The COllrt of Call/mall Pleas of
CII/"berlalld COIlllly. Pelllls)'/r'a"ia
...............................................................................................
liS.
rarlo palumbo t/d/b/a
No. .~~,-.?9'.li.............,.....,. Term
....................................................................,..'.......................
Palumbo's Pizza
..,..............................................................,.............................
Wril of ExeCUlio"
TO THE DEFENDANT AND ALL OTHER PARTIES IN INTEREST:
You are hereby nOlified Ihal a property claim. a COP)' of ",hich is aI/ached herelo has been filed by
Antonio Palumbo I' . /. d h . "I . I ,f h
. . . . . . . .. . .. . . . . . .. . . . . . . . . . . . . , . . . . . . . . c OImll/lI properl)' Isle I erelll. un ess an appralSa a, I e prop-
erly is requesled ",ilhin ( 10) days from Ihe dale of Ihis "olice. Ihe sheriff wilhollt maki"lI an appraisal will accept the
value of the property sel forth in the claim.
September 18, 1997
Dale:........... .......... .......
~~~
....................,..................
cc: Elliot atty for pltf
Carlo Palumbo deft
Antonio Plaumbo claimant
Sheriff of CIIII/ber/and COllnty
By ditu..<...:.. ..d~.,.......
Depllty
,
!'ROI'l!R'I'Y. 'CI.Alll.
'II thll Cqurt. of Common Plnll" pf
r.llmhorlllnd Coullty, PlllIMylvlIlIlR
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NOTARIAL SEAL
ELAINE M. REOI, Nololy Publoc
City 01 Carlisi., Cumborllnd County
M Commission Ex IIBS Nav 6. 2000
WRIT OF EXECUTION and/or ATTACHMENT
COMMONWEAlTH OF PENNSYLVANIA)
COUNTY OF CUMBERLAND)
NO. 95-7096 CIVIL 19_
CIVIL ACTION. LAW
TO THE SHERIFF OF
CUMBERLAND
COUNTY:
Philadelphia Steaks & Hoagies, Inc,.
To satisfy Ihe debl. Interest and costs due
from Carlo Palumbo,
Mechanicsburg PA
PLAINTIFF(S)
t/d/b/a Palumbo's Pizza, 4729 Old Gettysburg Pike,
17055.
DEFENDANT(S)
All restaurant
(1) You are directed to levy upon the property of the defendant(s) and to sell
fixtures, equipment, cash register and cash register receipts at Palumbo's
PIzza.
(2) You are also directed to allach the property of the defendant(s) not levied upon In the possession of
GARNISHEE(S) as follows:
and to notuy the gamlshee(s) that: (a) an aUachment has been Issued; (b) the gamlshee(s) ISfare enjoined from paying any
debt to or for the account of the defendant(s) and from delivering any property of the defendant(s) or othelWlso disposing
thereof;
(3) U property of thedefendant(s) not levied upon an subJect to allachmentls found Inthe possession of anyone other
than a named gamlshee. you are directed to notify him/her that he/she has been added as a garnishee and Is enjoined as above
stated.
$19,012.90
L.L.
Due Prothy
Other Costs
$.50
$1.00
Amount Due
Interest
Ally's Comm
Ally Paid $ 9 8. 72
Plaintiff Paid
%
Date:
July 16, 1997
Deputy
Lawrence E. Welker
by:
~
REQUESTING PARTY:
NA~-_ John .R. Elliott','-Esquire
Address: 117 E. Market St.,
York PA 17401
Allomey for: Plaintiff
Telephone: (717) 846-8811
Supreme Court 10 No. 50198
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WRIT OF EXECUTION and/or ATTACHMENT
COMMONWEALTH OF PENNSYLVANIA)
COUNTY OF CUMBERLAND)
NO. 95-7096 CIVIL 19_
CIVIL ACTION. LAW
TO THE SHERIFF OF
CUMBERLAND
COUNTY:
Phi1ade~phia Steaks & Hoagies, Inc.
To satisfy the debt. Interest and costs due
lrom Carlo Palumbo,
Mechanicsburg PA
PLAINTIFF(S)
t/d/b/a Palumbo's Pizza, 4729 Old Gettysburg Pike,
17055.
DEFENDANT(S)
All restaurant
(1) You are directed to levy upon the property 01 the defendant(s) and to sell
fixtures, equipment, cash register and cash register receipts at pa~umbo's
PIzza.
(2) You are also directed to attach the property of the detendant(s) not levied upon In the possession 01
GARNISHEE(S) as lollows:
and to notlly the gamlshee(s) that: (a) an attachment has been Issued: (b) the gamlshee(s) Is/are enjoined Irom paying any
debt to or lor the account 01 the defendant(s) and from delivering any proparty 01 the detendant(s) or otherwise disposing
thereol:
(3) II propartyof the defendant(s) not levied upon an subject to attachment Is found In the possession 01 anyone other
than a namedgamlshee. you are directed to notify hlmlherthat he/she has been added as a gamlshee and Is enjoined as above
stated.
$19,012.90
$.50
$1.00
Amount Due
Interest
Atty's Comm
Atty Paid $98.72
Plalntlll Paid
%
L.L.
Due Prothy
Other Costs
Date:
July 16, 1997
Lawrence E. Welker
REQUESTING PARTY:
Niltlij-_ John .R. E1Iiott',''Esquire
Address: 117 E. Market St.,
York PA 17401
Plaintiff
846-8811
50198
Oopuly
by:
~
Attorney for:
Telephone: ( 717 )
Supreme CourtlD No.
R. Thomas Kline, Sheriff, who being duly sworn according
to law, states this writ is returned STAYED.
Advance Costs: $150.00
Sheriff's Costs: 53.22
$ 96.78
Sheriff's Costs:
Docketing
Poundage
Law Library
Prothonotary
Service
Surcharge
Levy
$18.00
J .04
.50
1. 00
8.68
4.00
20.00
$96.78
Refund to atty on 2-29-00
~.s:~~
.~~ ~
~".. .-
R. Thomas Kline, Rherlff
Sworn and subscribed to before me
BY~~~
De uty heriff
This 3-<L day of"7\.h,... -
2000, A.D.-Q;b:;P n..Jg, J ~.
r thonotary
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PHILADELPHIA STEAXS and
HOAGIES,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
plaintiff
.
.
.
.
.
.
.
.
v.
: CIVIL ACTION - LAW
.
.
CARLO PALUMBO, t/d/b/a
PALUMBO'S PIZZA,
Defendant
.
.
.
.
: No. 95-7096 CIVIL TERM
OReER OF COURT
AND NOW, this 27th day of october, 1997, upon
con.ideration of Def.ndant'. P.tition To strike Off or op.n
Conf....d Judgm.nt or D.fault JUdgm.nt in Stay Ex.cution
proc..ding., and following an oral argum.nt h.ld on this date
pur.uant to the Ord.r of Court dat.d Augu.t 21, 1997, and it
app.aring that an an.w.r to the p.tition was fil.d and that
depo.ition. w.re not tak.n in this ca.., the D.f.ndant'.
Petition To Strike Off or op.n Conf....d JUdgm.nt or D.fault
Judgm.nt in stay of Execution proc..ding. is d.ni.d.
By the
JOHN R. ELLIOTT, ESQUIRE
117 Ea.t Main str..t
York, PA 17401
For the Plaintiff
AUSTIN F. GROGAN, ESQUIRE
24 W..t 32nd str.et
Camp Hill, PA 17011
For the Defendant
- c..a-b..~ /P'1<1:J2..U,J"J.ojrn.
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