Public Notices, October 27, 2021

Volume 59, No. 13

 

PUBLIC NOTICES

DECEDENTS’ ESTATES

ORPHANS’ COURT DIVISION NOTICES

NONPROFIT ARTICLES OF INCORPORATION

CHANGE OF NAME

 

TABLE OF CONTENTS

SBH Merged GST Exempt Trust & Merged GST Non-Exempt Trust, v. Lebanon Screen Printing, Inc.

 

NOTICE IS HEREBY GIVEN that Letters Testamentary or of Administration have been granted in the following estates. All persons indebted to the said estate are required to make payment, and those having claims or demands to present the same without delay to the administrators or executors named.

 

FIRST PUBLICATION

 

ESTATE OF JEAN M. MAENZA, late of Myerstown Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Christina Zezenski, Executrix

384 Mountain Blvd.

Wernersville, PA 19565

 

Frederick M. Nice, Esquire

Leisawitz Heller Abramowitch Phillips, P.C.

2755 Century Blvd.

Wyomissing, PA 19610

 

ESTATE OF CHARLES W. DUMBAULD a/k/a CHARLES WILLIAM DUMBAULD, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Sherri L. Dumbauld, Executrix

 

Keith D. Wagner, Esquire

1. O. Box 323

Palmyra, PA 17078

 

ESTATE OF DONALD H. SHUE, JR., late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Marianne Adams, Executrix

 

John R. Elliot, Esquire

Anstine & Sparler

117 East Market St.

York, PA 17401

 

ESTATE OF CAROL K. BRANDT, late of North Annville Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

David K. Brandt, Executor

1100 Willoughby Road

Harrisburg, PA 17111

 

Theresa L. Shade Wix, Esquire

Wix, Wenger & Wedner

4705 Duke Street

Harrisburg, PA 17109-3041

 

ESTATE OF BETTY C. MILLER a/k/a BETTY CAROLYN MILLER, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Bonita F. Miller, Executor

 

Anthony J. Fitzgibbons, Esquire

279 North Zinn’s Mill Road

Lebanon, PA 17042

717-279-8313

 

ESTATE OF EDWARD P. ROOT, JR. A/K/A EDWARD PAUL ROOT, JR., late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Cindy S. Rivers, Executor

 

Anthony J. Fitzgibbons, Esquire

279 North Zinn’s Mill Road

Lebanon, PA 17042

717-279-8313

 

ESTATE OF URSEL RANDOLPH ADKINS a/k/a URSEL R. ADKINS, late of South Annville Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Debra E. Mrakovich, Executrix

 

George W. Porter, Esquire

909 E. Chocolate Ave.

Hershey, PA 17033

 

ESTATE OF MARY K. STOLTZFUS, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Elam G. Stoltzfus, Executor

 

Anthony J. Fitzgibbons, Esquire

279 North Zinn’s Mill Road

Lebanon, PA 17042

717-279-8313

 

ESTATE OF ROBERT WITMAN GROFF, late of West Cornwall Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Charles Nelson Groff, Executor

 

Young and Young

44 S. Main Street

P.O. Box 126

Manheim, PA 17545

 

TRUST ESTATE OF BETTY JANE HARTMAN, late of Heidelberg Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Successor Trustees.

 

Michael Lee Hartman, Trustee

519 Albright Road

Myerstown, PA 17067

 

Andrew Hartman, Trustee

548 Pancake Road

Clarence, PA 16829

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue,

Myerstown, PA 17067

 

ESTATE OF HENRY JAVIER RIVERA ALVAREZ, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Yamilis Yaire Rivera Melendez, Executor

 

Anthony J. Fitzgibbons, Esquire

279 North Zinn’s Mill Road

Lebanon, PA 17042

717-279-8313

 

ESTATE OF WANDA S. REID, a/k/a WANDA SPENCE REID, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased September 13, 2021. Letters Testamentary have been granted to the undersigned Executor.

 

Gail L. Wagner, Executor

 

Elizabeth P. Mullaugh, Esquire

McNees Wallace & Nurick LLC

100 Pine Street

1. O. Box 1166

Harrisburg, PA 17108-1166

(717) 232-8000

 

ESTATE OF BETTY J. MURRAY, a/k/a BETTY JANE MURRAY, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executrices.

 

Susan L. Weiman, Co-Executrix

 

Virginia L. Kline, Co-Executrix

 

Charles A. Ritchie, Jr., Esquire

Feather and Feather, P.C.

22 West Main Street

Annville, PA 17003

ATTORNEY

 

ESTATE OF JAMES A. HEISEY, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Jennifer R. Noel, Executor

 

Anthony J. Fitzgibbons, Esquire

279 North Zinn’s Mill Road

Lebanon, PA 17042

717-279-8313

 

SECOND PUBLICATION

 

ESTATE OF JOHN S. SWEIGART, late of North Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Joseph Sweigart, Executor

241 Avenue of the Americas, Apt 10E

New York, NY 10014

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF YVONNE J. BAREIS, late of Cornwall Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Kevin M. Richards, Executor

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF JAMES WEST a/k/a JAMES A. WEST a/k/a JAMES ALLEN WEST, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Melissa Carruthers, Executrix

 

Candis A. Tunilo, Esquire

Nestico Druby, P.C.

1135 East Chocolate Avenue

Suite 300

Hershey, PA 17033

 

ESTATE OF JOHN C. ZIMMERMAN, late of Cornwall Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Jeremiah J. Zimmerman, Executor

5 Beckley’s Corner

Lebanon, PA 17042

 

Thomas S. Long, Esquire

Long Brightbill

315 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF ROBERT E. KISCADDEN, late of Palmyra Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executrixes.

 

Linda L. Progin, Executrix

 

Diana L. Hromco, Executrix

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF HARRY C. JAMES a/k/a HARRY CRAIG JAMES, late of Annville Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Elizabeth Jane Jonovich, Executrix

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF ESTATE OF NANCY MARIE GABNER, late of East Hanover Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

Lisa M. Reigel, Administrator

5928 York Rd.

Spring Grove, PA 17362

 

Bret M. Wiest, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF ESTATE OF JEAN F. COOL, late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

Timothy J. San Martin, Administrator

2108 Leinbaugh Ave.

Lebanon, PA 17042

 

Scott L. Grenoble, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF LUCILLE J. ZETTLEMOYER, late of Swatara Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Sharon P. Tyson, Co-Executor

 

Timothy L. Tyson, Co-Executor

 

Joel A. Ready, Esquire

Cornerstone Law Firm, LLC

8500 Allentown Pike, Suite 3

Blandon, PA 19510

 

ESTATE OF ESTATE OF ROY M. WEIDNER a/k/a ROY MICHAEL WEIDNER, late of 570 Charles Street, South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administratrix.

 

Sonia R. Weidner, Administratrix

 

Andrew S. George, Esquire

Kozloff Stoudt Attorneys

2640 Westview Drive

Wyomissing, PA 19610

 

ESTATE OF RENE LYN WEDDELL a/k/a RENE L. WEDDELL, late of Swatara Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executrixes.

 

Lucy Houle, Co-Executrix

 

Natalie Houle, Co-Executrix

 

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF LARRY R. SHOLLY, late of Millcreek Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

Patricia A. Sholly, Administrator

P.O. Box 4

Richland, PA 17087

 

John D. Enck, Esquire

Spitler, Kilgore & Enck, PC

522 South 8^th Street

Lebanon, PA 17042

Attorney

 

THIRD PUBLICATION

 

ESTATE OF HOWARD K. VASSALLO, late of Myerstown Borough, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

John M. Zimmerman, Administrator

 

Caleb J. Zimmerman, Esquire

Zimmerman Law Office

466 Jonestown Road

Jonestown, PA 17038

 

ESTATE OF MADELINE A. CHORNEY, late of Palmyra Borough, Lebanon County, Pennsylvania, deceased August 21, 2021. Letters Testamentary have been granted to the undersigned Executor.

 

Mr. Michael J. Chorney, Executor

1931 Wexford Road

Palmyra, PA 17078

 

Bradford Dorrance, Esquire

Keefer Wood Allen & Rahal, LLP

417 Walnut Street, 3rd Floor, Rear

1. O. Box 11963

Harrisburg, PA 17108-1963

 

 

ESTATE OF ANITA J. RISSER, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Bonita S. Golla, Co-Executor

 

Robert L. Bomgardner, Co-Executor

 

Gerald J. Brinser, Esquire

P.O. Box 323

Palmyra, PA 17078

 

ESTATE OF LESTER N. BERGER, JR., late of Heidelberg Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Michael A. Berger, Executor

237 S. Market Street

Schaefferstown, PA 17088

 

Thomas S. Long, Esquire

Long Brightbill

315 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF BARBARA A. MILLER a/k/a BARBARA ANN MILLER, late of Millcreek Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Kathy D. Venning, Executrix

1424 Hillpoint Circle

Sinking Spring, PA 19608

 

Timothy T. Engler, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue,

Myerstown, PA 17067

 

ESTATE OF STANLEY R. CORBIN, late of Palmyra Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Nora Eileen Drust, Executor

17801 Lake Road

Lakewood, OH 44107

 

Stephanie E. Murphy, Esquire

108 W. Main St., P.O. Box 330

Annville, PA 17003

 

ESTATE OF RONALD BETZ, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

Tammy Knight, Administrator

544 W. Walnut Street

Cleona, PA 17042

 

1. Chadwick Schnee, Esquire

108 W. Main St., P.O. Box 330

Annville, PA 17003

 

ESTATE OF LINDA LAUER, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

Cory Lauer, Administrator

52 N. Lancaster Street

Annville, PA 17003

 

1. Chadwick Schnee, Esquire

108 W. Main St., P.O. Box 330

Annville, PA 17003

 

ESTATE OF CAMILLE S. TYLDEN, late of Cornwall Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Michelle S. Hazel, Executor

5406 Blantyre Road

Broad Run, VA 20137

 

Stephanie E. Murphy, Esquire

108 W. Main St., P.O. Box 330

Annville, PA 17003

 

ESTATE OF MELVIN A. RITTEL a/k/a MELVIN AMMON RITTEL, late of Annville Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrators.

 

Jamie H. Rittel, Administrator

322 Reigerts Ln.

Annville, PA 17003

 

Joey A. Rittel, Administrator

1141 Alpha Ave.

Lebanon, PA 17046

 

Michael M. Rittel, Administrator

1450 North State Route 934

Annville, PA 17003

 

1. Chadwick Schnee, Esquire

108 W. Main St., P.O. Box 330

Annville, PA 17003

 

ESTATE OF CHING L. STODDART, late of North Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Co-Administrators.

 

Treasure Stoddart, Co-Administrator

 

Treavor B. Stoddart, Co-Administrator

 

Ching B. Stoddart, Co-Administrator

 

Stephen D. W. Miller, Esquire, CELA

Miller Law Firm PC

718 Poplar Street, Suite 1

Lebanon, PA 17042

 

ESTATE OF KATHY J. RHOADS, late of North Cornwall Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrators.

 

Dustin J. Rhoads, Administrator

1897 Walnut Street

Lebanon, PA 17042

 

Barbara J. Wolfe, Administrator

2202 Baltimore Pike

Gettysburg, PA 17325

 

Donna Long Brightbill, Esquire

Long Brightbill

315 South Eighth Street

Lebanon, PA 17042

 

 

ORPHANS’ COURT DIVISION NOTICES

 

Court of Common Pleas of Lebanon County

 

Notice is hereby given that the following accounts in decedents estates, Guardianships and trusts

have been filed in the Office of the Register of Wills and Clerk of Orphans’ Court of Lebanon

County, and that the same will be presented to the Court of Common Pleas-Orphans’ Court

Division of said County for Confirmation NISI on

 

Monday, November 1, 2021

At 10:00 A.M.

in Courtroom No. 1, Municipal Building, City of Lebanon

 

LIST OF ACCOUNTS WITH PROPOSED SCHEDULE OF DISTRIBUTION FILED BY

EXECUTORS OR ADMINISTRATORS

 

1. Brooks, Lorna K., dec’d, George H. Brooks, Jr., Exr., Frederick S. Wolfson, Atty.

 

All of the afore said accounts and statements of Proposed Distribution will be confirmed

ABSOLUTELY as of course by the said Orphans’ Court except those to which exemptions

are filed within twenty (20) days after the same are confirmed NISI.

 

Brian Craig

REGISTER OF WILLS AND CLERK OF ORPHANS’ COURT

LEBANON COUNTY, PENNSYLVANIA

 

 

 

NONPROFIT ARTICLES OF INCORPORATION

 

NOTICE IS HEREBY GIVEN that Nonprofit Articles of Incorporation were filed with the Department of State of the Commonwealth of Pennsylvania, at Harrisburg, Pennsylvania, on September 20, 2021, for the purpose of obtaining a Certificate of Incorporation under the provisions of the Nonprofit Corporation Law of 1988. The name of the proposed nonprofit corporation is Global Pain Management Solutions, Inc.

It will be organized under Section 501(c)(3) of the Internal Revenue Code of 1986, as thereafter amended, for the purpose of education, research, and outreach related to acute pain management.

 

McNEES WALLACE & NURICK LLC

100 Pine Street

Harrisburg, PA 17101

 

 

 

 

 

CHANGE OF NAME

 

Notice is hereby given that on the 15^th day of October, 2021, the Petition of Lisa Backus was filed

in the above Court requesting an Order to change the name of C.M. and C.M. to C.M.B. and C.M.B.

The Court has fixed the 29^th day of November, 2021 at 10:30 a.m. before the Honorable Samuel A

Kline, in Courtroom No. 2 of the Lebanon County Courthouse located at 400 S. 8^th Street, Lebanon,

PA 17042 as the time and place for the hearing of this Petition, where any and all interested parties may

appear and show cause, if they have any, why the request of Petitioner should not be granted.

 

Michael J. Light II, Esquire

REILLY WOLFSON

1601 Cornwall Road

Lebanon, Pennsylvania 17042

 

 

 

 

 

 

 

 

 

JUDGES OPINION

 

SBH Merged GST Exempt Trust & Merged GST Non-Exempt Trust, v. Lebanon Screen Printing, Inc.

 

Civil Action-Equity-Confession of Judgment-Petition to Strike or to Open-Promissory Note-Warrant of Attorney-Contract-Prompt Action-Meritorious Defense-Assignment-Real Party in Interest

 

It is alleged that Lebanon Screen Printing, Inc., (“Defendant”) on June 28, 2002 executed a promissory note in the amount of $99,000.00 in favor of the Estate of Aubrey L. Hanford, Jr., that contained a provision authorizing confession of judgment.  It is alleged that the Executors of the Estate of Aubrey L. Hanford, Jr., transferred the Estate’s interest in the Note to SBH Merged GST Exempt Trust & Merged GST Non-Exempt Trust (“Plaintiff”) on November 5, 2009.  Plaintiff filed a Praecipe for Entry of Judgment on December 19, 2019 with a subsequent Affidavit alleging that no payments had been made on the Note since prior to November 5, 2009 with outstanding principal and interest due and owing of $363,307.00.  Defendant filed a Petition to Strike or to Open Confessed Judgment.

 

1. Matters raised by a petition to strike or open judgment are limited to the validity and the correctness of the judgment at issue.

 

2. A petition to strike off judgment reaches defects apparent on the face of the record.

 

3. A petition to open judgment offers to show that the defendant can prove a defense to all or part of the claim.

 

4. Pennsylvania law has recognized and permitted entry of confessed judgments pursuant to the authority of a warrant of attorney contained in a written agreement.

 

5. A warrant of attorney is a contractual agreement between the parties, and the parties are free to determine the manner in which the warrant may be exercised.

 

6. Entry of a valid judgment by confession must be made in rigid adherence to the provisions of the warrant of attorney or will be stricken.

 

7. A confessed judgment may be opened if the petitioner acts promptly, alleges a meritorious defense and presents evidence which, at a jury trial, would require the issues to be submitted to a jury.

 

8. All actions must be pursued by the real party in interest.

 

9. An assignee is a real party in interest if it stands in the shoes of the assignor and assumes all rights.

 

10. Where a judgment is sought by an assignee, the assignee must file the assignment or other proof of a right to judgment.

 

11. Defendant acted promptly to open the confessed judgment where it filed its Petition within thirty (30) days after service of the confessed judgment.

 

12. Defendant raised meritorious defenses in its Petition that require submission of evidence to a jury including that the amount due under the Note appears incorrect and excessive where the documentation with the confession of judgment fails to provide itemization or computation of the judgment confessed, which is four (4) times more than the original principal balance, and Plaintiff failed to provide any documentation showing an appropriate assignment has been made conferring standing upon Plaintiff to enforce the Note.

 

L.C.C.C.P. No. 2019-02201, Opinion by John C. Tylwalk, President Judge, October 30, 2020.

 

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CIVIL DIVISION

 

SBH MERGED GST EXEMPT TRUST      :         NO. 2019-02201

& MERGED GST NON-EXEMPT TRUST,:

Plaintiff                          :

:

1. :

:

LEBANON SCREEN PRINTING, INC.,     :

Defendant                      :

 

ORDER OF COURT

 

AND NOW, this 30^th day of October, 2020, upon consideration of Defendant’s Petition to Strike or Open Confessed Judgment, Plaintiff’s Response thereto, and the Briefs submitted by the parties, and after Oral Argument conducted on August 7, 2020, it is hereby Ordered that SAID Petition is GRANTED. The Judgment by Confession entered on December 19, 2019 is hereby OPENED and the parties are directed to proceed in accordance with the accompanying Opinion and the Rules of Civil Procedure governing this action.

 

 

BY THE COURT:

 

                                                          ____________________________, J.

                                                          CHARLES T. JONES

 

CTJ/jah

 

Cc:  Bret Wiest, Esquire/Buzgon Davis Law Offices

       Andrew J. Race, Esquire/Reilly, Wolfson, Sheffey, Schrum & Lundberg, LLP

       Eden Rittle/Judges Chambers

       Barbara Smith/Prothonotary

       Judith Huber, Esquire/Law Clerk

 

 

 

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CIVIL DIVISION

 

SBH MERGED GST EXEMPT TRUST      :         NO. 2019-02201

& MERGED GST NON-EXEMPT TRUST,:

Plaintiff                          :

:

1. :

:

LEBANON SCREEN PRINTING, INC.,     :

Defendant                      :

 

APPEARANCES:

 

BRET WIEST, ESQUIRE                         FOR PLAINTIFF

BUZGON DAVIS LAW OFFICES

 

ANDREW J. RACE, ESQUIRE                FOR DEFENDANT

REILLY, WOLFSON, SHEFFEY,

  SCHRUM & LUNDBERG, LLP

 

OPINION, JONES, J., OCTOBER 30, 2020.

 

On December 19, 2019, Plaintiff commenced this action by filing a Praecipe for Entry of Judgment in the amount of $363,307.00.  Defendant filed a Petition to Strike or Open Confessed Judgment on January 17, 2020.  On March 9, 2020 Plaintiff filed its Answer with a proposed Confession of Judgment and Complaint attached as Exhibit “1,” explaining that the documents would be filed if deemed necessary by the Court.  We conducted Oral Argument on the Petition on August 7, 2020 and the matter is now before us for resolution.

Defendant’s Petition avers that on June 28, 2002, Defendant executed a Promissory Note in the amount of $99,000 in favor of the Estate of Aubrey L. Hanford, Jr., its successors and assigns.  The Note contains the following language:

1. INTEREST RATES.

• From the date hereof until June 1, 2007, this Note shall bear interest at an annual rate of 7.45% and thereafter shall bear interest at the Prime Rate (as hereinafter defined), plus 3% (the “Interest Rate”). “Prime Rate” shall mean the interest rate issued from time to time by Fulton Bank (or its successor).

 

• Upon the occurrence of an Event of Default (as hereinafter defined) or after the maturity hereof (whether by acceleration or otherwise), both before and after judgment, the Interest Rate shall be increased to a rate of five percent (5%) above the Prime Rate then in effect or, if such rate violates any law, at the highest rate then allowable (the “Default Interest Rate”) until paid.

 

• Both the Interest Rate and the Default Rate shall be based on a year of 365 days and actual days elapsed, and shall be compounded annually.

 

2. PAYMENTS. The Debt shall be paid, without offset, in sixty (60) equal monthly installments of SEVEN HUNDRED NINETY-FOUR and 51/100 DOLLARS ($794.51), each due and payable on the first day of each month following the Accrual Commencement Date, beginning with the installment due and payable on July 1, 2002 and continuing monthly thereafter through and including June 1, 2007.  Commencing with July 1, 2007, and continuing monthly thereafter, each on the first day thereof, the Maker shall pay an amount equal to the principal balance as of July 1, 2007 (estimated to be $85,970) divided by 180, plus accrued interest.  Nothwithstanding anything to the contrary contained herein, the entire unpaid principal balance, plus all accrued but unpaid interest, shall be due and payable in one sum, without notice, upon the earlier to occur of (i) June 1, 2012, or (ii) Maker’s default hereunder.

 

3. DEFAULT:  REMEDIES.  The following shall constitute events of default hereunder (each, an “Event of Default”):

 

• Maker’s failure to pay any installment of interest or principal due under this Note within five (5) days after its due date; provided, however, for not more than two times in any rolling twelve month period, Payee shall notify Maker that it has not received the installment then due and Maker shall then have five (5) calendar days from receipt of such notice to cure the deficiency;

 

…

 

Upon occurrence of an Event of Default, then:

 

• Payee, at Payee’s option, may declare the entire remaining unpaid principal balance due and payable, and all amounts thereupon shall be due and payable without further notice or demand, and Maker promises to pay all costs of collection, including reasonable attorney’s fees, approved by a court of competent jurisdiction;

 

• Maker agrees to pay to Payee as a late charge, in addition to any interest due, and in addition to the amount of such payment, a sum equal to five percent (5%) of the amount of such delinquent payment; and

 

• Payee may exercise all other rights and remedies it may have at law or in equity.

 

MAKER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TIME (WHETHER OR NOT A DEFAULT EXISTS) FOR MAKER IN ANY ACTION BROUGHT AGAINST MAKER ON THIS NOTE AT THE SUIT OF PAYEE, WITH OR WITHOUT DECLARATION FILED, AS OF ANY TERM, AND THEREIN TO CONFESS OR ENTER JUDGMENT AGAINST MAKER FOR THE ENTIRE UNPAID PRINCIPAL OF THIS NOTE AND ALL OTHER SUMS PAID BY PAYEE TO OR ON BEHALF OF MAKER PURSUANT TO THE TERMS OF THE LOAN DOCUMENTS, AND ALL ARREARAGES OF INTEREST THEREON, TOGETHER WITH COSTS OF SUIT, AND ANY OTHER SUMS SECURED BY THE LOAN DOCUMENTS, ATTORNEY’S COMMISSION OF TEN PERCENT … FOR COLLECTION; AND FOR SO DOING THIS NOTE OR A COPY HEREOF VERIFIED BY AFFIDAVIT SHALL BE A SUFFICIENT WARRANT.  MAKER HEREBY VOLUNTARILY, KNOWINGLY AND UNDERSTANDINGLY WAIVES ANY RIGHT TO PRIOR NOTICE OR TO A HEARING IN CONNECTION WITH THE ENTRY OF ANY SUCH CONFESSED JUDGMENT OR THE COLLECTION OF SUCH JUDGMENT BY ATTACHMENT, LEVY OR SALE OF OR AGAINST MAKER’S REAL OR PERSONAL PROPERTY.

 

…

 

MAKER ACKNOWLEDGES AND AGREES THAT PAYEE ENTER JUDGMENT BY CONFESSION IN LEBANON COUNTY PROMPTLY FOLLOWING THE EXECUTION AND DELIVERY HEREOF.

 

5. WAIVERS BY MAKER.

 

• Maker hereby waives and releases all errors, defects and imperfections in any proceedings instituted by Payee under the terms of this Note, … .

 

• Maker waives presentment for payment, demand, notice of demand, notice of nonpayment or dishonor, protest and notice of protest of this Note, and all other notices in connection with the delivery, acceptance, performance, default, or enforcement of the payment of this Note, … .

 

 

6. MISCELLANEOUS.

…

 

THE UNDERSIGNED ACKNOWLEDGES AND AGREES THAT THIS DOCUMENT CONTAINS PROVISIONS UNDER WHICH PAYEE MAY ENTER JUDGMENT BY CONFESSION AGAINST THE UNDERSIGNED.  BEING FULLY AWARE OF HIS RIGHTS TO PRIOR NOTICE AND A HEARING ON THE VALIDITY OF ANY CLAIMS THAT MAY BE ASSERTED AGAINST THE UNDERSIGNED BY PAYEE HEREUNDER BEFORE JUDGMENT IS ENTERED, THE UNDERSIGNED HEREBY FREELY, KNOWINGLY AND INTELLIGENTLY WAIVES THESE RIGHTS AND EXPRESSLY AGREES AND CONSENTS TO PAYEE’S ENTERING JUDGMENT AGAINST THE UNDERSIGNED BY CONFESSION PURSUANT TO THE TERMS HEREOF.

 

(Attachment to Praecipe for Entry of Judgment, Promissory Note at pp. 1- 5) (Emphasis in Original)

The Note is signed by Steven T. Hanford, as President of Lebanon Screen Printing, Inc., and attested to by Bonadine A. Smith, Secretary, with the words “[CORPORATE SEAL]” appearing below Smith’s signature.  A document entitled “Disclosure for Confession of Judgment” is also attached and signed by Hanford.

Plaintiff has attached an Affidavit on Promissory Note to the Praecipe for Entry of Judgment which is signed by Martin D. Yocum (“Yocum”), as Trustee of SBH Merged GST Exempt and the Merged GST Non-Exempt Trust.  The Affidavit indicates that on November 5, 2009, the Executors of the Estate of Aubrey L. Hanford, Jr. transferred the Estate’s interest in the Note to SBH Merged GST Exempt Trust and Merged GST Non-Exempt Trust and appointed the affiant, Yocum, as Trustee.  Yocum’s Affidavit indicates that no payments had been made on the Note since prior to November 5, 2009 and states that the accumulated interest and principal due on the Note is now $363,307.00.  No breakdown of this amount is provided.  The Affidavit indicates that the original Note which was executed by Defendant was in the possession of Fulton Financial Advisors, Co-Executor, and that it is no longer available.

In its Petition, Defendant notes that in obtaining the judgment, Plaintiff did not file a Complaint or otherwise comply with the Pennsylvania Procedural Rules regarding confessed judgments at Pa.R.C.P. Nos. 2951 and 2952.  Defendant argues that the Judgment should be stricken as the amount of the judgment entered is excessive and the judgment is irregular on its face due to defects which appear on the face of the record.  In the alternative, Defendant argues that the Judgement should be opened because the computation of the amount due under the Note is incorrect and excessive, that enforcement of the Note is barred by the Statute of Limitations, and that Plaintiff lacks standing to enforce the Note as it was never assigned from Fulton Financial Advisors as Co-Executor of the Estate of Aubrey L. Hanford, Jr. to the Trustee of SBH Merged GST Exempt Trust & Merged GST Non-Exempt Trust.

In its Answer to Defendant’s Petition, Plaintiff explains that the Note was assigned as per a joint Settlement Agreement and Release in November 2009 and an Affidavit on Promissory Note filed on December 19, 2019.  Plaintiff attaches a partially-drafted Confession of Judgment and Complaint which it intends to file if necessary.  The proposed Confession of Judgment provides:

Pursuant to the authority contained in the warrant of attorney, the original or a copy of which is attached to the Complaint filed in this action, I appear for the Defendants and confess judgment in favor of the Plaintiff and against the Defendants as follows:

 

• Principal balance                                                         $
• Accrued inters from _________

@ ______ percent (____%) per month                    $

• Counsel fees (estimated)    $
• Costs of suit                $

 

TOTAL DUE                                                       $

 

The proposed Complaint provides, in part:

 

3. On January 28, 2002, Defendant entered into a Promissory Note … for the sum of Ninety-Nine Thousand Dollars ($99,000). …

 

4. On November 5, 2019, the interests of the Estate … in the Promissory Note were transferred to SBH Merged GST Exempt Trust & Merged GST Non-Exempt Trust.

 

5. As of December 19, 2019, the accumulated interest and principal due on said Note was Three Hundred Sixty-Three Thousand Three Hundred Seven Dollars ($363,307).

 

6. Pursuant to the parties’ agreement, payment on the Promissory Note was due on the first day of each month for sixty (60) consecutive installments.

 

7. Pursuant to the Promissory Note, Plaintiff is entitled to collect a finance charge of 7.45% per annum.

 

8. Pursuant to the Promissory Note, Plaintiff is entitled to collect a finance charge of 5% above the Prime Rate in the Event of Default.

 

9. Pursuant to the Promissory Note, Plaintiff is entitled to an award of actual attorney’s fees incurred.

 

10. Plaintiff has contractually agreed to pay its counsel at an hourly rate of ______________ ($_______).

 

11. Plaintiff has incurred damages as follows:

 

(a)  principal balance                                   $

(b)  accrued interest from ________

@_____ percent (_____%) per month   $

(c)  counsel fees (estimated)                         $

(d)  costs of suit                                           $

 

TOTAL DUE                           $

 

(Plaintiff’s Answer to Petition to Strike or Open Confessed Judgment, Exhibit “A”)

 

“Matters raised by a petition to strike or open are limited to the validity and correctness of the judgment in issue.” 7 Goodrich Amram 2d § 2959(a):1. “A petition to strike and a petition to open are two forms of relief with separate remedies; each is intended to relieve a different type of defect in the confession of judgment proceedings.” Manor Bldg. Corp. v. Manor Complex Associates, 435 Pa.Super. 246, 645 A.2d 843, 845 n. 2 (1994). A petition to strike off the judgment “reaches defects apparent on the face of the record, while a petition to open the judgment offers to show that the defendant can prove a defense to all or part of the plaintiff’s claim.” 7 Goodrich Amram 2d § 2959(a):2.

“A petition to strike a judgment is a common law proceeding which operates as a demurrer to the record. A petition to strike a judgment may be granted only for a fatal defect or irregularity appearing on the face of the record.” Resolution Trust Corp. v. Copley Qu–Wayne Associates, 546 Pa. 98, 106, 683 A.2d 269, 273 (1996).

In considering the merits of a petition to strike, the court will be limited to a review of only the record as filed by the party in whose favor the warrant is given, i.e., the complaint and the documents which contain confession of judgment clauses. Matters dehors the record filed by the party in whose favor the warrant is given will not be considered. If the record is self-sustaining, the judgment will not be stricken…. An order of the court striking a judgment annuls the original judgment and the parties are left as if no judgment had been entered.  Hazer v. Zabala, 26 A.3d 1166, 1169 (Pa.Super.2011) (quoting Resolution Trust Corp., supra ). In other words, the petition to strike a confessed judgment must focus on any defects or irregularities appearing on the face of the record, as filed by the party in whose favor the warrant was given, which affect the validity of the judgment and entitle the petitioner to relief as a matter of law. ESB Bank v. McDade, 2 A.3d 1236, 1239 (Pa.Super.2010). “[T]he record must be sufficient to sustain the judgment.” Id. The original record that is subject to review in a motion to strike a confessed judgment consists of the complaint in confession of judgment and the attached exhibits. Resolution Trust Corp., supra at 108, 683 A.2d at 274.

In contrast, “if the truth of the factual averments contained in [the complaint in confession of judgment and attached exhibits] are disputed, then the remedy is by proceeding to open the judgment,” not to strike it. Id. at 106, 683 A.2d at 273. A petition to strike a confessed judgment and a petition to open a confessed judgment are distinct remedies; they are not interchangeable. Hazer, supra. A petition to open a confessed judgment is an appeal to the equitable powers of the court. PNC Bank v. Kerr, 802 A.2d 634, 638 (Pa.Super.2002), appeal denied, 572 Pa. 735, 815 A.2d 634 (2002). Factual disputes by definition cannot be raised or addressed in a petition to strike off a confession of judgment, because factual disputes force the court to rely on matters outside the relevant record to decide the merits of the petition. Resolution Trust Corp., supra at 109, 683 A.2d at 275.

 

Historically, Pennsylvania law has recognized and permitted entry of confessed judgments pursuant to the authority of a warrant of attorney contained in a written agreement. See Scott Factors, Inc. v. Hartley, 425 Pa. 290, 228 A.2d 887 (1967). “[A] warrant of attorney is a contractual agreement between the parties and the parties are free to determine the manner in which the warrant may be exercised.” Atlantic Nat. Trust, LLC v. Stivala Investments, Inc., 922 A.2d 919, 924 (Pa.Super.2007), appeal denied, 594 Pa. 702, 936 A.2d 39 (2007). Entry of a valid judgment by confession must be “made in rigid adherence to the provisions of the warrant of attorney; otherwise, such judgment will be stricken.” Dollar Bank, Federal Sav. Bank v. Northwood Cheese Co., Inc., 431 Pa.Super. 541, 637 A.2d 309, 311–12 (1994), appeal denied, 539 Pa. 692, 653 A.2d 1231 (1994). “A warrant to confess judgment must be explicit and will be strictly construed, with any ambiguities resolved against the party in whose favor the warrant is given.” Id. “A warrant of attorney to confess judgment must be self-sustaining and to be self-sustaining the warrant must be in writing and signed by the person to be bound by it. The requisite signature must bear a direct relation to the warrant of attorney and may not be implied.” Hazer, supra at 1171. See also Ferrick v. Bianchini,   69 A.3d 642, 2013 PA Super 116 (stating same).

 

Midwest Financial Acceptance Corporation v. Lopez, 78 A.3d 614, 623-624 (Pa. Super. 2013).

Plaintiff argues that the Judgment cannot be disturbed as Defendant waived and released any error, defect, or imperfection in an action instituted by the holder of the Promissory Note at pages 3 and 4 of the Note.  However, such a waiver applies only to technical or procedural irregularities and not to substantive or fundamental questions of liability or the amount thereof.  Kros v. Bacall Textile Corporation,126 A.2d 421 (Pa. 1956).  Thus, we will examine the record to determine whether there exist any substantive or fundamental questions as to Defendant’s liability or the amount due under the Note.

A challenge to the accuracy of the amounts allegedly due under the instrument, or an error in computation, should be resolved in a petition to open unless it is evident from the face of the instrument that the amount is grossly excessive or not authorized by the warrant to confess judgment. Germantown Savings Bank v. Talacki, 657 A.2d 1285, 1291  (Pa. Super. 1994), citing Davis v. Woxall Hotel, Inc., 395 Pa.Super. 465, 577 A.2d 636 (1990); Leasing Serv. Corp. v. Benson, 317 Pa.Super. 439, 464 A.2d 402 (1983).  In cases where the judgment was grossly excessive or unauthorized by the instrument, however, a motion to strike will be granted. McDowell Nat’l Bank v. Vasconi, 407 Pa. 233, 178 A.2d 589 (1962); Van Arkel & Moss Prop., Inc. v. Kendor, Ltd., 276 Pa.Super. 547, 419 A.2d 593, 595 (1980).  If a judgment by confession is entered for items clearly within a warrant of attorney but for an excessive amount, a court, rather than strike the entire judgment, may modify the judgment and cause a proper judgment to be entered.  12 Standard Pennsylvania Practice 2d §71.288.

The mere fact that a judgment has been entered that is excessive in amount is not determinative of whether judgment by confession must be stricken in its entirety.  11 Standard Pennsylvania Practice 2d §67:107.  Where judgment is confessed by the creditor in the amount of a default, as authorized by a warrant of attorney, and the amount of the default is overstated, the remedy of the debtor is not to strike off the judgment but to open it.  Id.  If a judgment as entered is for items clearly within the judgment note, but excessive in amount, the court will modify the judgment and cause proper judgment to be entered. Id.

Pa.R.C.P. No. 2959 provides that when considering a petition to strike or open a confessed judgment,

(e) The court shall dispose of the rule on petition and answer, and on any testimony, depositions, admissions and other evidence. The court for cause shown may stay proceedings on the petition insofar as it seeks to open the judgment pending disposition of the application to strike off the judgment. If evidence is produced which in a jury trial would require the issues to be submitted to the jury the court shall open the judgment.

 

Pa.R.C.P. No. 2959(e).  We will dispose of this matter on the petition, answer and briefs submitted by the parties as the Petition was listed for Argument and no other items were submitted for our consideration.

A confessed judgment may be opened if the petitioner acts promptly, alleges a meritorious defense, and presents evidence which, in a jury trial, would require the issues to be submitted to the jury.  Germantown Savings Bank v. Talacki, 657 A.2d 1285 (Pa. Super. 1995).  We believe Defendant acted promptly here.  Plaintiff filed the Praecipe for Entry of Judgment on December 19, 2019 and Defendant filed its Petition to Strike or Open Confessed Judgment on January 17, 2020, within thirty days after service as required by Pa.R.C.P. No. 2959(a)(3).  We also find that Defendant has raised two meritorious defenses in the Petition, the resolution of which would require the submission of evidence to a jury.

Defendant contends that the amount due under the Note is incorrect and appears to be excessive.  From our review of the record of this matter, we would agree.  The language contained in the Note permitted Plaintiff to enter judgment by confession for the unpaid principal amount of the loan, along with interest, costs of suit, and attorney’s fees of ten percent.  The Affidavit attached to the Praecipe for Entry of Judgment indicates that $363,307.00 represents the accumulated interest and principal due on the note and does not mention the costs and attorney’s fees.    These items are appropriate as they are clearly within the contemplation of the Note.  However, Plaintiff has provided no itemization and/or computation as to how the amounts of principal and interest were reached.  The amount of judgment confessed, $363,307.00, is more than quadruple the amount of the July 1, 2007 principal balance of $85,970.00.  This sum seems clearly excessive and we question Plaintiff’s authorization to enter judgment to this sum; however, we are unable to determine the correct amount of the judgment without reference to matters which are not of record in this matter.

Plaintiff’s response to the Petition also creates confusion as to the items and the amounts included in the confessed judgment.  In contrast to Yocum’s Affidavit, the proposed Confession of Judgment and Complaint attached to Plaintiff’s Answer indicate that the judgment amount is actually comprised of the principal balance, accrued interest, counsel fees, and costs of suit.  However, Plaintiff has provided no figures for the Court’s consideration, leaving all sections blank, including the hourly rate of its attorneys.  Upon default, page 2 of the Note provides that Defendant agreed to pay reasonable attorneys’ fee, subject to court approval.  The Note also allows Plaintiff to enter a judgment which includes attorney’s fees of ten percent.  The absence of any figures precludes us from conducting an examination of how the amount of the confessed judgment was calculated, whether the amount of the attorneys’ fees was reasonable, and whether the judgment amount as a whole was correct.

Defendant also raises the issue of the alleged assignment of rights under the Note to Plaintiff and Yocum’s appointment as Trustee.  All actions must be pursued by the real party in interest.  Pa.R.C.P. No. 2002(a).  An assignee is a real party in interest as it stands in the shoes of the assignor and assumes all of its rights.  Easton-Phillipsburg Rent-A-Car, Inc. v. Puritan Life Insurance Company, 42 Pa. D. & C. 3d 265 (C.C.P. Northhampton Cnty. 1985)  Where a judgment is sought by an assignee, the assignee must file the assignment, or other proof of a right to the judgment. 11 Standard Pennsylvania Practice 2d §67:114, citing Reinsmith v. McCready, 53 Pa. C. & C. 376 (C.C.P. Lehigh Cnty. 1945), 1945 WL 2001.  While Plaintiff avers that an assignment has been effectuated, it has failed to provide any documentation to show that the appropriate parties have made a valid assignment of rights under the Note and that Plaintiff has standing to enforce the Note and to have the confessed judgment entered in its favor.

We believe that Defendant should be afforded the right to have the Court determine the factual issues involved in order to ascertain whether the amount entered as judgment is correct and, if not, the appropriate amount of judgment to be entered.  In addition, we believe Defendant is entitled to proof of the assignment of all rights under the Note to Plaintiff so that any judgment which may ultimately be determined will be entered in favor of the real party in interest.  These matters are not mere technical or procedural irregularities and present substantive questions as to Defendant’s liability to Plaintiff and the amount due under the Note.  Because we believe these matters will likely necessitate our consideration of matters outside of the record, we will order that the judgment be opened.