HomeMy WebLinkAbout96-01018
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escrita 0 en persona 0 por abogado y archivar en la corte en forma
escrita sus defensas 0 sus objeciones alas demandas en contra de
su persona, Sea avisado que ai uated no se defiende, la corte
tomara medidas y puede entrar una orden contra usted sin previa
aviso 0 notificacion y por cualquier queja 0 alivio que ea pedido
en la peticion de demanda, USTED ~UEDA PERDER DINERO 0 ~RO~IEDADES
o OTROS DERECHOS IM~ORTANTES PARA USTED.
LLEVE ESTA DEMANDA A UN ABODAGO I NMEDIATAMENTE, SI NO TIENE
ABOGADO 0 8I NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO,
VAYA EN PERSONA 0 LLAME POR TELEFONA A LA OFICINA CUYA DIRECCION SE
ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PIJEDE CONSEGUIR
ASISTENCIA LEGAL.
Court Administrator
Cumberland County Courthouse, 4th Floor
Carlisle, pennsylvania 17013
(717) 240-6200
Date:
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R. f S RE~LDS,y R.
Attorney for Plaintiff
DONAN, INC.
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in that Flying J has a fifty percent 150\) ownership interest in
CFJ. (Hereinafter, at times CFJ and Flying J shall be referred
to dS "Defendants.")
4. Welsh Oil, Inc. I"Welsh") is an Indiana corporation
with a principal place of business located at 800 East 86th
Avenue, Merrillville, Indiana 46411.
5, Prior to November 5, 1993, Welsh owned a tract of land
located at the northeast corner of the intersection of U.S. Route
11 and U.S. 1-81 in Middlesex Township, Cumberland County,
Pennsylvania. Welsh sold said tract of land to CFJ on or about
November 5, 1993, Title to said tract of land became vested in
CFJ by deed dated November 5, 1993, which was recorded in the
Office of Recorder of Deeds of Cumberland County on November 15,
1993 ("the CFJ tract").
6. Plaintiff owns a tract of land located on the north
side of U.S. Route 11 in Middlesex Township, Cumberland County,
Pennsylvania, upon which is located a Hardee's restaurant ("the
Hardee's tract"). The Hardee's tract is bordered on the west,
north and east by the CFJ tract and on the south by U.S. Route
11, Title to the Hardee's tract became vested in Plaintiff by
deed dated October 2, 1984, which was recorded in the Office of
Recorder of Deeds of Cumberland County on October 5, 1984.
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7. Before selling the CFJ tract to CFJ, Welsh had applied
to the Commonweal~h of Pennsylvania, Department of Transportation
("PennDOT"), for a Highway Occupancy Permit ("HOP") in order to,
inter ~, construct two access drives for a restaurant and
truck service plaza which it proposed to construct on the CFJ
tract.
8. Plaintiff intervened in the PennDOT HOP application
proceeding and objected, inter alia, to the access proposed by
Welsh and the improvements to the Hardee's tract which would be
required as a result thereof.
9. On August 16, 1993, Plaintiff and Welsh entered into an
Agreement ("1993 Agreement") in an effort to resolve Plaintiff's
objections to Welsh's application for a HOP, A copy of the 1993
Agreement (with exhibits) is attached hereto, made a part hereof
and marked as Exhibit "A",
10. In the 1993 Agreement, Plaintiff agreed tD withdraw its
objections to Welsh's HOP application if PennDOT granted a HOP to
Welsh with access and improvements to the Hardee's tract
substantially as depicted on a Plan ("Plan") prepared by Herbert,
Rowland & Grubic, Inc" consulting engineers ("HRG"), last
revised August 16, 1993, a copy of which is attached to the 1993
Agreement as Exhibit A and incorporated by reference therein.
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11. On November 1, 1993, Welsh and CFJ entered into an
Agreement entitled "Assignment of Contract Rights and Obligations
Real Estate Contract" ("Assignment") whereby Welsh assigned to
CFJ all rights and obligations of Welsh arising under the 1993
Agreement and CFJ accepted said assignment and agreed to perform
any and all obligations of Welsh arlsing under the Agreement. A
copy of the Assignment is attached hereto, ffi3de a part hereof and
marked as Exhibit "B".
12, Following the execution of the Assignment and the
transfer of the CFJ tract to CFJ, Flying J applied to PennDOT for
a HOP to obtain approval for access to the CFJ tract from U.S.
Route 1l.
13. On January 6, 1995, Plaintiff, Defendants, and the law
firm of Reynolds & Havas entered into an Escrow Agreement
("Escrow Agreement") wherein in order to facilitate the issuance
of a HOP by PennDOT to Flying J, Plaintiff agreed to execute
and/or file certain docurr,ents required by PennDOT in
consideration for, inter alia, Defendants agreeing to pay for and
to provide financial security for the construction of the access
and improvements to the Hardee's tract depicted on the Plan,
including without limitation:
(a) construction costs; and
(b) engineering and legal fees and costs:
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(i) incurred in conjunction with the
preparation and submission of plans and/or
applications to any governmental authority
having jurisdiction relating to the
construction work;
(ii) incurred in conjunction with the
inspection and administration of the
construction work; and
(iii) incurred in conjunction with the
preparation, negotiation, implementation and
enforcement of the Escrow Agreement and the
implementation and enforcement of the 1993
Agreement,
(Hereinafter, at times said construction, engineering and legal
fees and costs shall be collectively referred to as the "DoNan
costs,") A copy of the Escrow Agreement (without exhibits) is
attached hereto, made a part hereof and marked as Exhibit "C",
14. Pursuant to paragraph 68 of the Escrow Agreement, in
order to provide security for the payment of the DoNan costs,
Defendants delivered $65,000 to Reynolds & Havas, as escrow
agent, for deposit in an escrow account at Commerce Bank, Camp
Hill, Pennsylvania ("Escrow Account").
15, Pursuant to paragraph 3 of the Escrow Agreement,
Defendants agreed to complete the construction of the access and
improvements to the Hardee's tract on or before June 15, 1995.
16. Pursuant to paragraphs 4 and 8 of the Escrow Agreement,
Defendants agreed to pay the DoNan costs.
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17, Pursuant to paragraphs 3 and 4 of the Escrow Agreement,
of the $65,000 paid into the Escrow Account, $45,000 was
designated for construction costs, $10,000 was designated for
legal fees and costs, and $10,000 was designated for engineering
fees and costs. Notwithstanding the foregoing, pursuant to
paragraph 8 of the Escrow Agreement, Defendants agreed that
nothing in the Escrow Agreement would affect any of the rights of
Plaintiff under the 1993 Agreement, and that Defendants, as
assignee of Welsh, were bound by the terms of the 1993 Agreement,
including the obligation to pay the DoNan costs even if the DoNan
costs were in excess of the $65,000 paid into the Escrow Account.
18, Pursuant to paragraphs 8 and 11 of the Escrow
Agreement, all rights and defenses of Plaintiff under the 1993
Agreement were expressly reserved, and Defendants agreed that
they were bound by the terms of the 1993 Agreement.
19, Pursuant to paragraph 6 of the 1993 Agreement,
Defendants agreed to cooperate with Plaintiff in, inter~,
implementing the terms and conditions of the 1993 Agreement with
respect to the construction of the access and improvements to the
Hardee's tract.
20. Pursuant to paragraph 3 of the 1993 Agreement,
Defendants agreed to, inter alia, constnlct the access and
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improvements to the Hardee's tract at their expense and t~ pay
for engineering costs related thereto incurred by Plaintiff,
COUNT I
BREACH OJ' CONTRACT . CLAIM J'OR DOHAN COSTS
21, The averments of paragraphs 1 - 20 hereof are
incorporated by reference herein as if set forth in their
entirety,
Construction Costs
22, Paragraph 7A of the Escrow Agreement required
Defendants to retain a contractor to construct the access and
improvements to the Hardee's tract and to complete the
construction work on or before June 15, 1995. In the event the
construction work was not completed by June 15, 1995, paragraph
7H of the Escrow Agreement provided Plaintiff with the remedy of
retaining a contractor to complete the work and making payment
from the Escrow Account for the work.
23. Defendants breached the Escrow Agreement and the 1993
Agreement by not completing the construction of the access and
improvements on or before June 15, 1995, Accordingly, pursuant
to paragraph 7H of the Escrow Agreement, Plaintiff retained
Pennsylvania Peres, Inc. and Handwerk Contractors tc perform the
construction work,
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$10,000 to Defendants for review and approval of payment from the
Escrow Account. Defendants approved payment, and therefore
payment in the amount of $10,000 was made from the Escrow
Account, leaving a balance due and owing by Defendants to
Plaintiff for engineering fees and costs of $6,643.58,
30, Plaintiff made demand upon Defendants for payment of
$6,643,58, which amount is due and owing by Defendants to
Plaintiff pursuant to paragraph 8 of the Escrow Agreement and
paragraph 3 of the 1993 Agreement, but Defendants have refused
and failed to make payment in breach of the Escrow Agreement and
the 1993 Agreement.
Leqal Pees and Costs
31, Plaintiff retained the law firm of Reynolds & Havas to
perform legal work and has incurred legal fees and costs relating
to the preparation, negotiation, implementation and enforcement
of the Esc~ow Agreement and the implementation and enforcement of
the 1993 Agreement.
32, To date, Plaintiff has incurred legal fees and costs
relating to the serJices described in paragraph 31 hereof in the
amount of $21,452.88.
33. Pursuant to paragraph 7B of the Escrow Agreement,
Plaintiff submitted legal fees and costs to Defendants for review
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39. Plaintiff continues to incur and will incur additional
engineering and legal fees and costs in connection with the
implementation and enforcement of the Escrow Agreement and the
1993 Agreement, including but not limited to engineering and
legal fees and costs that have been and will be incurred in
pursuing this lawsuit. Defendants are obligated to pay those
legal fees and costs pursuant to the terms of the Escrow
Agreement and the 1993 Agreement.
WHEREFORE, Plaintiff CoNan, Inc. demands that judgment be
entered in its favor and against Defendants CFJ properties and
Flying J, Inc, in the amOllnt of $36,553,59, plus additional
engineering and legal fees and costs incurred by Plaintiff in
implementing and enforcing the Escrow Agreement and the 1993
Agreement, including fees and costs incurred by Plaintiff in the
prosecution of this lawsuit, plus legal interest and costs of
suit,
COUNT II
BV..CU or CONTRACT - CLAIM POR LOST REVENUES/PROPITS
40. The averments of paragraphs 1 - 39 hereof are
incorporated by reference herein as if set forth in their
entirety.
41. As averred above, Defendants breached the Escrow
Agreement and the 1993 Agreement by, inter alig, failing and
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exhibit A
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AGREEMENT
THIS AGREEMENT, made this iI/bday of August, 1993,
by and between Welsh Oil, Inc. ("Welsh"), an Incliana corporation,
having its principal offices at 800 East 86th Avenue,
Merrillville, Indiana 46411 and DoNan, Inc. ("DoNan"), a
Pennsylvania corporation, having its principal offices at Post
Oftice Box 111, Bedtord, Pennsylvania 15522.
RICITALSI
The background to this Agreement is a~ follows:
R-1. Welsh owns an approximately 27 acre tract ot
ground situated on the northeast corner of the intersection of
U.S. Route 11 and Interstate 81 in MiddleseK Township, Cumberland
County, Pennsylvania (the "Welsh Tract") ,
R-2. DoNan owns an approximately 1.8 acre tract ot
ground also on the north side of u.s. Route 11 in Mlddlesex
TOWfiShip, Cumberland county, Pennsylvania, upon which is located
a Hardees Restaurant (the "Hardees Tract"). The Hardees Tract is
bordered on the west, north and east by the Welsh Tract, and on
the south by U.S. Route 11.
R-3. Welsh applied to the Commcnwealth of
Pennsylvania, Department of Transportation ("PennDot") tor a
Highway Occupancy Permit, Application No. 643242, in order to
construct two access drives for a restaurant and service plaza
Which it proposed to construct on the Welsh Tract.
R-4. DoNan intervened in the Highway occupancy Permit
proceedings, objecting, inter AliA, to the access proposed by
Welsh.
R-5. In an effort to resolve Its objections to Welsh's
application, DoNan has proposed alternate site access and
improvements to the Welsh Tract and the Ilardees Tract, as
depicted on a plan prepared by Herbert, Rowland' Grubic, Inc.,
Consulting Engineers, last revised August 16, 1993, a copy of
which is attached hereto as EKhibLt A, and incorporated herein by
reference (the "Plan").
R-6. The parties hav~ agreed to pursue approvals from
Middlesex Township and pennOot to construct the access and
improvements as shown on the Plan, in accordance with the terms
and provisions of thIS Agreement.
NO~, TIIE~FO~, the parties hereto, in consideration
of the mutual promises and covenants herein contained, AND
IKTENDING TO BE LEGALLY BOUND, promise, covenant and agree as
follows:
1. Recitals. The Recitals set forth above are
incorporated herein by reference.
2. The Plan. Each of the parties hereto approves the
access and improvements substantially as shown on the Plan, and
agrees to cooperate in order to secure approval from Middlesex
Township, PennDot, and any other governmental authority having
jurisdiction, for construction of the access and improvements
substantially as shown on the Plan.
3. Costs. The access and improvements shown on the
Plan, including the access and improvements to be constructed (or
reconstructed) exclusively on the Hardees Tract, shall be
constructed at the expense of Welsh, including, without
limitation, construction costs related to site lighting, signing,
drainage, pavement marking, removal and relocation of guard
rails, and installation and repair of blacktop. Prior to the
commencement of construction on the Hardees Tract, Welsh shall
givo DoNan not less than seventy-two (72) hours notice. In
addition, Welsh shall pay for the reasonable engineering costs
incurred by DoNan in conjunction with the preparation of plans
and submission of the plans to Middlesex Township, PennDot, and
any ether governmental authority having jurisdiction relating to
said construction.
4. Hiqhwav Occuoancv Permit. Concurrently with the
submission to PennDot of an amended application for a full volume
Highway occupancy Permit showing access and improvements
sUbstantially as shown on the Plan ("Amended Application"), DoNan
will withdraw its objections to the Highway Occupancy Permit for
which Welsh has applied. DoNan reserves its rights to reinstate
its objections to the Welsh Highway Occupancy Permit in the event
Middlesex Towr.ship, PennDot or any other governmental authority
having jurisdiction does not approve the access and improvements
substan~ially as shown on the Plan, including, without
limitation, PennDot's failure to approve Welsh's Amended
Application. In addition, upon execution of this Agreement,
DoNan will execute and deliver to Welsh a letter addressed to
PennDot in the form set forth in the draft letter attached heret.o
as Exhibit B and incorporated herein by reference, stating it has
no objection to Welsh being issued a low volume Highway Occupancy
Permit for the limited purpose of providing access to the Welsh
Tract for construction vehicles subject to the conditions and
reservations of rights set forth in the letter. Subject to said
conditions and reservations of rights, DoNan will provide such
other and further consents as are reasonably required by Welsh in
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order to obtaLn Lssuance of a low volume Highway Occupancy
Permit,
5. Easement. Upon appr.oval of the final access drive
locations by PennDot, DoNan and Welsh will enter into a non-
exclusive Cross Easement Agreement, providing substantially as
follows:
(a) A free and full access by DoNan and Welsh, and
their respective agents, employees, contractors,
tenants and customers over, upon and across the common
access driveway located along the western side of the
Hardees Tract.
(b) In addition, Welsh will give and grant to DoNan
and its agents, employees, contractors, tenants and
customers a non-exclusive access and parking easement
across the driveways, six truck parking spaces and
other areas outlined in red on Exhibit A.
(c) The easement shall also provide for pedestrian
access across the walkways designated on Exhibit A
(between the parking areas and the Hardees Tract) and
shall contain a covenant that no barriers or
obstructions to the pedestrian and vehicular access
will be constructed or installed without the prior
written approval of DoNan.
(d) The easement shall also provide for the
establishment of directional signs substantially as
designed on Exhibit A indicating, inter AliA, the
location of driveways for access to the Hardees Tract
and the Welsh Tract on and adjacent to the easement
areas (on both the Hardees Tract and the Welsh Tract).
(e) The easement shall be binding upon and shall
inure to the benefit of the parties hereto and their
respective heirs, successors and assigns.
6. CooDeration. securing approvals for the access and
plans contemplated by this Agreement will require the approval of
both Middlesex Township and the Pennsylvania Department of
Highways. Each party agrees to cooperate promptly and fully with
the other party in all reasonable actions and requests,
including, without limitation, making minor adjustments to the
Plan which do not SUbstantially alter the access and improvements
as shown on the Plan, in executing applications for access to the
sites, and in otherwise implementing the terms and conditions of
this Agreement.
7. Green SDace. DoNan agrees that, if requested by
Welsh, it will make available for creation by Welsh an additional
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five feet strip of green space (not existing but shown on the
Plan) along the northern property line of the Hardees Tract,
which five foot strip will be south ot the existing green space
on the Hardees Tract.
8. Gender/Number. Whenever the context herein so
requires, the singular number shall include the plural, the
plural shall include the singular, and the use of any gender
shall be applicable to all genders.
9. Heirs. Successors and Assians. This Agreement
shall be binding upon and shall inure to the benefit ot the
parties hereto and their respective heirs, successors and
assigns.
10. Entire Aareement. This Agreement contains the
entire agreement between the parties hereto with respect to the
subject matter hereof. All prior negotiations, agr~ements and
understandings, whether written or oral, are either merged into
this Agreement or are hereby superseded.
11. Headinas. The headings or captions preceding the
paragraphs in this Agreement are inserted tor convenience of
reference only and shall not be construed in interpreting this
Agreement.
12. Pennsylvania Law. This Agreement shall be
governed by and construed in accordance with the laws of the
Commonwealth of Pennsylvania.
13. Notice. Any notice required hereunder (including
notice changing the provisions of this notice paragraph) shall be
hand delivered, sent by certitied United States mail, postage
prepaid, or sent by overnight delivery service requiring receipt
(such as Federal Express or UPS) to the parties, and shall be
deemed to have been given upon actual receipt or refusal of such
notice, at the addresses set forth below:
To Welsh Oil, Inc. at:
Mr. Robert J. Welsh, Jr.
President
Welsh Oil, Inc.
800 East 86th Avenue
Post Office Box 10725
Merrillville, IN 46411
With a copy to:
Dean A. Weidner, Esquire
Wix, Wenger , Weidner
508 North Second Street
Post Office Box 845
Harrisburg, PA 17108-0845
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exhibit B
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WHEREAS. on Novcmber I. 1993. Welsh Oil. Inc. exccuted an Assillnmenl at all
of ilS riahls IIld obliaalions undcr\he AUI;UIl16. 1')93 A~emenllO CPJ;
WHEIU:'!AS, CFJ and Fl~inllll1lC related enllues in lhlll F1yln~ 1 has a filly percenl
(50") ownenhlp Interesl in CPJ. (HerelnaCler refClcnce 10 "Plylna J" shall be deemed 10 mchllle
F1yln. J and CPl.)
WHEReAS, FlyinllJ is now seekinlllo nblllln approval from ~nnDOT of a HOP
showing acceaa and improvemenls subsUIJllii1lly as Ihown on the PIWl;
WHEREAS, in order 10 ootain suill JiOP, I'lyini: J hils requesr.c:d thai DoNlin
exccute an Apecmenl of Release ("Release") in the funn SCl for\h in Ihc A~emelll of Release
attached hereto as I!llhibit ".""; Ihat DoN;U\ file Itn Application with PennDOT for II HOP
("Repcrmiuina Application") 10 obtain approval of !.he access and improvemenls 10 the Hardee's
lI'act described below in lhe form .el forth In the Appllclltion allached hCr:10 as Exhibil "8"; and
thai, as pan of lhe Repermlninl Applicaliun proces:l 10 e:'teculC all Access Cuvcllanl (" Access
Covenalll"), if requin:d by PennDOT, in Ihe Coml set Conh in thc Access COvemlnl all&ched
herelO as I!l\hiblt "C";
WHEREAS. un AUiuSl 8, 1994, flYing Jund 00-:\13 Corporallon ("Do.Ma")
enu:red into III Afl'Umem ("Do.Ma Agreemcm") i,vini Flying J \hc opuon 10 purchase cenlin
real property described lherem u LOI III ( lAIl ..\ ") owned by Do.Ma and localcd at 1700
Hl1l'risburl: Pike. Mlddlescx Township, Cumbcrland Counly, PennsylvanIa, ~nd a permanenl
access ea,'cmenl for lOI III, for $::~O,OOO.OO. A con oi lhe Do-Mil l\grtemCnlls allacheJ
hereto as Exhibit "0";
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WHEREAS. subscquellliy. Flying I ;nd Do.M.. uccu\ed an AmendmeRlIO the
Dll-M~ All'CClmenl ("AmcndmcnltO Do.l\.Ia Alreemenl") ""hidl chanled the deadlinc fnr closin,
on rllc purchase of LoI In and the perll1anenllCccss euelllenl for Lot"l 10 a dale on or before
Deccmber 31, 1994, or chilly (30) JIlY~ after appruvill uf che $ubdivi$iun, wllichever IS hUer. A
copy of the Alllendmelllto Do.Ma ,~8recmelll is atLlched herclO as E.thibit "E";
WHEREAS. on October~, 1994, Flying J anI! DenOl) A. Willey ("WiUey") enllCl'tld
inw IlIl Apmenl ("WlIley AlVCCmcm") whcreby flying I ISsilncd to WlUcy or his assigns che
DOoMa AlfCcmenl. and specificaily the a~n'\Cnc 1..1 purchase LoI jjl and the pennallent access
casement for LoI'1 for S2~O.OOO.OO ~ubJcctto che lenn~ .et fnnh in the Amcndrncnttu OIl-Mil
Aarcc1rcnl. ^ copy of the WlIlcy Aarcc:mcllt is allAched hereto and marlLcl!as EMibit "P";
WHEREAS. DoNan is wiiliJlltO ellccute the Release. to mc the RepemU1dnll
ApplluLlon. IlIld to uec:ulC the Access Covenant il I"'equired by PennDOT, subJecllO. the
folluwing cundiLlons as IInticcd by Ihc provisions of :he following ai"ccmenl: (I) thc enlering inlo
of this Escrow A&reement by thc pMlies in ottler 10 proy ide securilY for Ihe completion of Ihe
':OIlSI1Uction and the pllyment of Ihe conSlrUcuon com fnr the access and ill1provcmcllls 10 be
.:onslrUc!Cd IIIl che property owned by DoNan on thl~ nonh $Ide of U.S. Route 11 in Mlddlesell
Tnwn~hip. Cumberland CounlY. Pennsylvania, upun which is located a Hanlee's Rest3urantllhe
"HanJee'~ tTllI;c"). including lhe paymenc of conslrUcl.ioll COSlS relating to slle IightUl8. slllnins.
draUl.ge. pavement marking. rcmo\'alllJlli ",I""anur ui llUardrails, and instaUation ;l/1d repair of
blacklup. In I&Ccomance with pAugTnph ) uf lhe All!.'''' 16, 1993 A!;feement: (2) lhe paymenl of
en~meerini and legal fees ami ~U$l~. im;urred in con,lunction with lhe preparanon anI! submIssion
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of phlllS and/or applications to Mlddle~eJl Tuwnship, PennCOT and mny other aovemment4l
authoricy havlR, JurI.sdic:tion relatina to tile cons1l1lC nun work, incurred In conjunction with the
inspection IIIld administration of the comtTUcuon wInk, and incurred !n conjunction with the
preparation, lIe.otlacioll, implemenLloon. and enfor:cl11ent of Ihil Agreement and Ihe
implemcnLluon and enforcement of the AuauSC 16, 1993 Aarecment (heRinafter III times all
~unslNCtion, en.lnecrtnllU1d legal fccs and cu.ts n:ferr"(d to In this para.taph and as UmilCd by
plltaaraph 4 heR of, shall be referred to II.S "the CoNan Costs"); and (3) the apemcnc of Plyln. J
to give CoNan the option to purch~.e lut It! and the permanent access easement for lot.t as
described in parqraph 5 below;
WHEREAS. in order to facilitate the: pllymenl of the CoNan COSIS. Flyin. J has
agRed to place 165,000,00 (the "Fund") in e.crow with Escrow ^genc pendlna the completion of
Ihc construction of the IIt;CCSS and improvemcnts Ie thc H;udu's InCC and the pilyment of the
DoNan CUft:l in .c~ordanc:e with thc tenns uf thi, Escrow Apement; and
WHEREAS, CFJ, Flying J dnl! DoNan Wish 10 appoint R&H JS Escrow Aaelll,
and R&H is wlOinl to serve 13 Escrow A~ent .."JlUld \he Fund in escrow pursuant to the lenns
and conditions hereinafter set fonh.
SOW. nfEREFORE. the partlCS hc:re\o, in consideration of the mutua.! promises
~nd covenants herein contalnw and Other !:ood lUll. valuable con.ideratlon, and inlCndina to be
lelally bound, promise, covenantlUlJ ~~ee ... full(,w,:
J.lld COllllnto UIc Fund. No legal or eOllinurlng fccs <lOll ,",OSIS may be plUd from Ihe Fund which
were incurred (or lela1 or englOccrinll w011L performed pnor 10 January I, 19Q~ eXCepl11l\ amount
nOllO exceed $3.000 (or lelal (ccs and costS alld 1IlI iitT\ounlllot 10 clIceed $4,000 for enllinc:etinl
f.u and CON,
5. Ontlna to PIl..L'h.... Au.lIl'......
Ayin, J '&Tees lhal if Willey or his assi,"s ~:u nllt indicale their inlCnlto purchlllCl LOI IH
and lhe permanenllCcess easement for I.ot ,n on or before December 31. 1994, or thirty (30)
days WI appcoval and recordallon of lhe final subdivi~ion plat. whichever is lalCt, as set (orlh in
(he Willey Apment. Ayin, J win give DoNan lhe uplion in wrilinl ("oplion notice") to
purchase L.ot '1 and the perrnanenl I<;<;ess ellsemenL for L01' I for the same price and ~ubject to
the same U!rms and couditions IS set forth in the Willey A'l,'t1!emenL DoNlin ~hall have thirty (30)
.Jays from die diU! of lhe option notice 10 exercise Ihe uplion. DoNan'~ nghls under lhb
paragraph shall be wholly conlin gent upon expiration of any Ilnd all righls held by Willey or his
assi,ns.
6. J(..,.rnw A~N\Unt.
A. Ayin. J ami DoNan hereby desigua~ Slid appoint the law firm of Reynolds de
Havas as Escrow Asem hen:under and Escrow Ailelllllgtas 10 act in such
capacity pursuant to the term! and c.)nditiolls sel funh in Ihis Escrow Agreement.
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B. Plylnl J shllll (orwlll'd 10 BRO for I1:\ICW llmlllpproVW .11 pllymcm n:4jllisilion. o(
ConcrlC:or, DoNall. HRO 311d R&H shall (ilI'WlId to Flyilll J (or rcvicw Ind
approval (which approval ~hall not be: lInrea~onably withheld) all invoices (or ICllal
and enllneenn, (ees and cosu,
C. In revlewinlthe requisitions (or plymellL oC COI:uaclOr and dcccrminlnl whether
10 approve them (which appmval shan not be lInrea.\onllbly wilhheldl, HRCl shall
delCnnine whelher rhe work. is cumpleted to ils silltis(acllon. HRG shan return all
rejcclCd requisitions (or payment 10 f-lyin, 1 lIotinlthereoll Ihe reasons (or the
rejccQOn,
D. HRO andlor flying J shall furward all approvcd requisilions for payment 10
Bscrow Agcnt, Escrow AIICI1l shall have no duty or discretion 10 revicw, approve,
alter, StOp or delay payment, or rake ;my IIcdon other than payment punuantlO
paragraph 7.E. hereof,
E, WithinlCn (10) days of lhe =eipl frllm HRG lII1c.Vur Flying J of an IIpproved
requisition for payment. I!scrow Age11 shall makc paymenr froll1lhe Escrow
Account In dIe .moul1l of the approv,:d Cl:4uisitiun (ur pllymenL The checks (or
Ihe payment o( the requisilions oC Comraetor Ihall be made payable 10 Cuntractor
and senlto F1yill' J. 111e che~ks for 'he payment uflhe requisitions for
. ~ .
enainecMI fecs and COSIS shall be made payable and leBl10 Ihe eBalncer. The
chcc:ks for Ihe paynlClIl of Ihe rcqujJ,uons ror leall r..u 3Ild COIL' shall be made
payable and sent to the law linn rendering the lellallervices.
F. Wilhin len (\0) dly. of the receipt f10m HRO of. n:JeclCd n:quisilion, Flyina J
shall nod!y Conauctor of Ihe rejcclCd work and the reasonllherefor aa specified
by HRO. and Contractor sllall correcllhc rejected work III accordlnce wllh Ihe
dlreetions of HRO and F1yina J.
O. F1ylna J shlUaive wrillen notice 10 liRa whell III of che cOllsLrUCtlon work for Ihe.
access Ind improverrlCnu Itlthe HaIdce'struct is compleled by Cona-lclOr. HRO
shill delCnnlne (which approval shill 1101 be ullreasonallly wilhheld) whelhcr alluf
Ihc work hiS been completed to ils slli~raclion. If il delennincs thai All of the
work hi. been completed to ilS slus:"aclion. HRO ~hal1 su .,hi>c F1yinll J, EM:row
Agent and DoNalI in writing. If it d,:lClmines thai allnf the wurk hu~ nut been
completed 10 ils satisfaction, HRO shull aUvise F1ylns J In wrillng of Ihe
unsatisfaclory work. and flying J shalllOlk~ .\Cps IU hllve CUl1lfuctor compleu: the
work 10 HRO', satisfaction, subject :0 lhe provision~ of plltagraph 3 her~!.
H. [f lhe constrU~tiun work is not comfleltd to HRO's sallsfaClion on or before June
1', 199~, HRO shall have Ihe authority. on behlllf of DoNan. 10 relain a cona-actor
10 compleLC Ihe work lII1UIO niaJce payment from the Escrow Account for the
. .1.
r
8. ~MH!t ftft D II"'" 01 IMNalL
NOlhinl in Ihls Escrow Agreemenl shall .rt",t any of the righls of DuNan under Ihe
AUlustl6, 1993 AgrcerrlCnl. alld CPJ dllll Flying J, as ISSlgnee of Welsh Oil.lnc.. all'CC Ihallhey
lU'C bound by lho lCnns of slid A~ment. incluilin..: the obligation to PIlY the DoN an cosu
punUGII110 paraaraph 3 of said Agreement even if the DoNan ~u~IS lII'C in exccss of the amount
of the Fund.
9. I lahlll()' 01 II'UlPfMIf A..nt~
In pcrfonnlns any of 11$ duties helCunder. Escro", Al:cnt shllll nOllncur, and CFJ lUld
F1ylnl J shall indemnify Iud hokll!~crow Apnl harmless from and Ilgalnsl any liabilities 10
anyone for any damaacs. losses or defenses unless caused or arising uut uf Escrow Alent'S i"Oas
negligcnce. rcckleuness or willful miscondu~t, and llCCOrdlnSly Escrow Agent shall nOI incur any
such liabilities In respect 10 any such &clion taken or omillCd by Escrow Agenl in good failh
(i) upon advice or counsel. or (Ii) in reliil/l~e upon Uiy insrruction believed tu be genuine. to have
been ,lined or presented by a proper person and 10 ,onConn with Ihe provisions of Ihis Escrow
Aareement. E~crow Agent may consult legal counsr.l in lhe event of II.IIY dispute. question,
incerprelllion or conSU\lClion of any of Ihe provisions of Ihis Escrow Agreement or ui ils duties
here wIder, Ind. Escrow Agent shall incur no Iiabilit) m &Cling in a~cordance wilh the opinion of
such counsel.
.11.
.
al/~139S 11:46 FPEILI(H. LEITIEP
316 ~61 7~31 P.1~
IN wrrNBSS WHBRBOF. and InllCndlnalD be Icplly bolllld lu:reby, the pll'liel hemo
haw lOt tbeir IwIda ud __ tho day IIId yeu 11m above wriaen.
CPJ PROPBR.T1J3S
By:
Outinnan. &ec;u1iw CommlllCe
WIaIeaI
PI.. YINO I me.
AIliNt:
(AIIt,) s.....lllll)'
(CwpatllD 8011)
By:
(Vk:e) I'nlidcot
DoNu. me.
AIDIC:
By:
(Aut.) Secl'eIaTy (Vlc;e) Pmldent
(CorparIlD Soil)
RBYNOLDS "HAVAS.
A Profeulonal Corporation
Atlas&:
By: ?J/W
( (Vit:o) \dent
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DONAN. INC.
Plaintitl.
IN HIE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v
(IVIL ACTION - LAW
NO. 96-1018 CIVIL TERM
CFJ PROPERTIES and
FL YING J. INC,
Defendants
JURY TRIAL DEMANDED
DEFENDANTS' ANSWER WITH NEW MATTER AND COUNTERn.AIM
TO PLAINTIFF'S COMPLAINT
TO DONAN. INC. PlaintilT, and its attorney. R JAMES REYNOLDS, JR.. ESQUIRE
YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE
ENCLOSED NEW MATTER AND COUNTERCLAIM WITHIN TWENTY (20) DAYS FROM
SER VICE HEREOF OR A JUDGMENT MAYBE ENTERED AGAINST YOU.
1-6. Admitted
7-8. Admitted based on information received.
9-10. Admitted based on inlormation received; however. those documents speak for
themselves.
11-12 Admitted.
13. Admitted that the Plaintiff, Defendants and the law firm of Reynolds & Havas entered
into an Escrow Agreement. That Agreement. however, speaks lor itself. It is specifically denied
that the Defendants agreed to any payments "without limitation. ..
14 Admitted.
15 It is admitted that the Defendants agreed to complete the construction of the access
and improvements to the Hardee' s tract on or before June 15. 1995 in compliance with Exhib;t "A"
to the 1993 Agreement.
16-19. Dellied as stated. The Escrow Agreement is attached to Plaintill" s Complaint and
the Agreement speaks for itself. By way of lurther answer the Defendallts hereby incorporate by
reli:rence their answers to paragraphs 13 through 15.
20 Denied as stated. The 1993 Agreement is a document which speaks for itself. It is
specil1cally denied that the Defendants agreed to construct the access and improvements to the
Hardee's tract atlheir expense and to pay for engineering costs related thereto incurred by Plaintill"
To the extent that those expenses and I:osts are not cxplidlly sc:ttorth in the 1')IJ.l Agrecmelllanu
Exhibit" A" to that Agreelllent, the Defendant has nll ohligalion to pay Plail1lill'
COUNT I
8R[ACH OF CONTRACT. CLAIM FOR DONAN COSTS
21. The averments of paragraphs I through 20 of this Answer are hereby incorporated
by reference
Construction COlts
22. Denied as slaled The Escrow Agreement speaks for itsdf and it is denied that any
actions on the part of the Defendants have breached the Escrow Agreement.
23. It is admitted thatlhe construction oflhe access and improvements was not completed
on or before June 15. 1995. It is denied, however. that the Delendants breached the Escrow
Agreement or that any work which Plaintiff did to perform the construction work was in substantial
compliance with the 1993 Agreement.
24-25. It is denied that the total amount of construction costs incurred by Plaintiff are in
substantial compliance with the 1993 Agreement. It is therefore denied that the Delendants are
required to agree to any further payment from the escrow account or that there is any balance due
and owing above that remaining in the escrow account.
26. Admilled t~at Plaintiff has made a demand. but it is denied that any payment is due
based on the avermel1ls set forth in paragraphs 1 through 25 of this Answer which are hereby
incorporated by reference
Eneineerine Fees and Costs
27 Admilled based on infonnation received that HRG was retained; however. it is denied
that the work performed by HRG was in substantial compliance with the 1993 Agreement.
28. After reasonable investigation. Delendants are without knowledge or inlormation
sullicient to form a belief as to the truth or falsity of said averment By way of lurther response, it
is denied that Delendants are liable for any lurther costs from the Escrow Agreement or in excess
of the Escrow Agreement or any lurther payment whatsoever
29.30 It is admitted that PlainUlt' made a dcmand tur paymcnt. but it is dcnicd that any
further paymcnt is duc or owing cither Ihlll1 thc Es~row Agrccmcnt or in cx~css of the Es,;row
Agrccment
l.elal Fees and Costs
3 I Admitteu
32 Aftcr rcasonable invcstigation. Defendants are wilhout knuwlcdge ur information
sutlkient to lorm a belief as to the truth or talsity of said avcrmcnts Strict proof is dcmandcd
.l.l Admittcd Howcver, thc Escrow Agrecment is a document which speaks for itself
34 It is denied that the Delendants breached Ihe Escrow Agreement or that there are any
fees due and owing to Plaintilf or to Reynolds & Havas as a result of the mailers described in
Plaintiffs Complaint
35. Denied as stated. Although Plaintiff has made demand upon Defendants for payment
of additional legal fees. there are no legal fees due and owing either from the Escrow Agreement or
any balance in excess of the Escrow Agreement
36 Denied. To the contrary, see the averments stated in paragraphs I through 33 of the
Plaintiffs Complaint
37. Denied. To the contrary, see the averments stated in paragraphs I through 36 of the
Plaintiffs Complaint
38. Denied. To the contrary. in January of 1995. despite their obligation to cooperate
promptly and fully in meeting the terms of the 1993 Agreement. DoNan representatives contacted
PennDO T officials several times and reminded them of DoNan's objections to the Defendants'
project PcnnD 0. T officials then related to the Defendants. through their representatives. that they
could not issue permits without DoNan' s consent and that the Dcfcndants could not open lor
business without the permits These actions on the part uf the Plaintill" constitute a breach of the
1993 Agreement In audition. after e:llablishment of the Escrow Agreement. the Plaintitl" submitted
plans to the Delimdants that cmbcllishcd and were not in substantial compliancc with thc 1993
Agreement but still did not incluue enough inlllrmalion needed to bid the project Given the
considerable time constraints of which the Defendants werc under. the actions of DoNan and its
agents were slow and unresponsivc 10 the urgency of the Delendants' request in obtaining the
permits and was a ~ause in who": ur III part of the Delcndallls inability tu ~omplete the project by
June 15. 1995
N It is uenied thai DelcnuanlS are liable to Plaintiff lor any continuing obligatiuns
whi~h Plaintitf has or may incur
COUNT n
BREACH OF CONTR.\{"r - CLAIM FOR I.OST REVENI!ES/PROFI'rS
40. The avennenls of paragraphs I through .l9 of Delendants Answer with New Maller
are incorporated herein by reference
41 Denied To che cuntrary, see the averments stated in paragraph )8 of Delendants'
Answer.
42. It is denieu that the Delendants have breached the contract or caused any
unnecessary. undue and uncontemplateu disruption to Plaintitl"s business. As to the averments
regarding the amounts. the Delendants are without knowledge or information sufficient to lorm a
belief as to their truth or lalsity The averments are therelore deemed denied and strict proof is
demanded.
WHEREFORE, Detendants demand judgment in their favor and dismissal of the Plaintitl's
Complaint with prejudice.
NEW MATTER
43. Due to the actions of the Plaintitl' in tailing to fully cooperate in meeting the terms
of the 1993 Agreement. the Plaintiffs claims are barred or reduced by the doctrine of estoppel.
44 All actions taken on behalf of the Delendants at all times were done with legal
justification.
45. The scope of the work on the Plaintitrs latest plans and the work as completed is lar
in excess of that which the Ddendants are obligateu tu fund and which the 1(9) Agreement
cuntemplated
46. The 1993 Agreement did not require the Delenuants to pay tor this expansion in the
scope of the work and Ihere is no requirement tor the Delendants to pay lor fees and costs incurred
in any expansion of the work beyond the scope of the originalll)'J.l Agreement
44. Denied. The averments of this paragraph state a
conclusion of law to which no response is required and they are
therefore denied.
45. Denied. On the contrary, as averred in the Complaint,
the construction of the access and improvements to the Hardee's
Tract performed by the completion contractor retained by
Plaintiff was in accordance with the scope of work contemplated
by the 1993 Agreement and the Escrow Ag~eement, and Defendants
are in breach of those Agreements by, inter~, failing to
complete the work on or before June 15, 1995, and by failing to
pay Plaintiff for the cost of said work.
46. Denied. The 1993 Agreement, being in writing, speaks
for itself and therefore no response to the averments of this
paragraph is required. By way of further answer, as averred in
the Complaint and in the reply to paragraph 45 hereof, which are
incorporated by reference herein, the construction of the access
and improvements to the Hardee's Tract was in accordance with the
scope of work contemplated by the 1993 Agreement and the Escrow
Agreement. Accordingly, Defendants are obligated to pay for the
construction costs, the engineering fees and costs, and the legal
fees and costs described in the Complaint, and they are in breach
of the Agreements by failing to do so.
.2.
47. Denied. The Escrow Agreement, being in writing, speaks
for itself and therefore no response to the averments of this
paragraph i~ required. By way of further answer, Defendants are
obligated to pay the construction costs, engineering fees and
costs, and legal fees and costs described in the Complaint
pursuant to the 1993 Agreement and the Escrow Agreement. By not
paying same, Defendants are in breach of those Agreements.
48. Denied. It is specifically denied that Plaintiff in
any way breached the 1993 Agreement. Any actions taken by
Plaintiff with respect to dealings with PennDOT and/or access
across its property did not constitute a breach of the 1993
Agreement.
WHEREFORE, Plaintiff DoNan, Inc. demands judgment in its
favor and against Defendants CFJ Properties and Flying J, Inc.,
as prayed for in its Complaint.
ANSWER TO COUNTBRCLAIM
49. This paragraph merely incorporates by reference
averments of previous paragraphs and therefore no response is
required. To the extent a response is deemed to be required,
Plaintiff incorporates by reference the averments of its
Complaint and the averments of its Reply to New Matter.
50. The averment of this paragraph that Plaintiff breached
the 1993 Agreement states a conclusion of law to which no
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