HomeMy WebLinkAbout00-00754
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LAWS, STARUCH & PISARCIK
GERARD J. PISARCIK, ESQ,
ill No. 39181
20 Erford Road, Suite 305
Lemoyne, P A 17043
(717) 975-0600
ATTORNEY FOR PLAINTIFF
PAUL L. KOSTICK t1a
PLKPROPERTIES,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
Docket No. .,;)600- 7S't a'-'L't/~
VINCENZO MARCIllANO,
Defendant
NOTICE
You hve been sued in Court. If you wish to defend against the claims set forth in the
following pages, you must take action within twenty (20) days after this Claim and Notice are served
by entering a written appearance personally or by 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 fail to do so
the case may proceed without you and a judgment may be entered against you by the Court without
further notice for any money claimed in the Claim or for any other claim or relief requested by the
Plaintiff, You may lose money or property or other rights important to you.
YOU SHOULD TAKE TIllS PAPER TO YOUR LAWYER AT ONCE. IF YOU
DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Court Administrator
Cumberland County Courthouse, 4th FI.
One Courthouse Square
Carlisle, PA 17013
(717) 249-6200
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NOTICIA
Le han demandado a usted en la corte, Si usted quiere defenderse de estas demandas
expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la
demanda y la notificacion, U sted debe presentar una apariencia 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 si usted no se defiende, la corte tomara medidas y puede entrar una orden
contra usted sin previo aviso 0 notificacion y por cualquier queja 0 alivio que es pedido en la peticion
de demanda, U sted puede perder dinero 0 sus propiedades 0 otros derechos importantes para usted.
LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO
TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE P AGAR TAL SERVICIO,
V AY A EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUY A DIRECCION SE
ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR
ASISTENCIA LEGAL.
Court Administrator
Cumberland County Courthouse, 411> Fl.
One Courthouse Square
Carlisle, PA 17013
(717) 249-6200
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LAWS, STARUCH & PISARCIK
GERARD 1. PISARCIK, ESQ.
ill No, 39181
20 Erford Road, Suite 305
Lemoyne, PA 17043
(717) 975-0600
ATTORNEY FOR PLAINTIFF
PAUL L. KOSTICK tla
PLK PROPERTIES,
Plaintiff
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
v.
Docket No.
VINCENZO MARCHIANO,
Defendant
COMPLAINT
1, Plaintiff is Paul L. Kostick, an adult individual, trading as PLK Properties, with an office
address of 418R Market Street, Lemoyne, Cumberland County, Pennsylvania ("Kostick" or "PLK",
as applicable),
2. Defendant is Vincenzo Marchiano, an adult individual and former ownerloperator of
La Fontana, Inc., a Pennsylvania corporation that was doing business at 420 Market Street, Lemoyne,
Cumberland County, Pennsylvania ("Marchiano"),
3, At all times herein mentioned, PLK was, and now is, the owner in fee simple, and entitled
to the possession of, certain real property located at 420 Market Street, Lemoyne, Cumberland
County, Pennsylvania (the "Premises").
4. On or about November 19, 1993, PLK and Francesco Failla ("Failla") and Vincenzo
Mazzamuto ("Mazzamuto") entered into a written lease agreement whereby Failla and Mazzamuto,
as the tenants, leased PLK's said property located at 420 Market Street, Lemoyne, Cumberland
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County, Pennsylvania (the "Lease"), A true and correct copy of the Lease is attached hereto as
Exhibit A and incorporated herein by reference.
5, On or about September 14,1995, the Lease was assigned to Marchiano by the execution
of a written Lease Addendum whereby Marchiano assumed possession of the Premises and assumed
full responsibility for the obligations of the Lease and Failla and Mazzamuto were released from all
responsibility for the obligations of the Lease. A true and correct copy of said Lease Addendum is
attached hereto as Exhibit B and incorporated herein by reference.
6. On or about April 19, 1996, the Lease was again assigned in writing whereby Giuseppe
Russo ("Russo") assumed possession of the Premises and became fully responsible for the obligations
of the Lease. Said assignment also provided that Marchiano remained responsible for all Lease
obligations. A true and correct copy of said assignment is attached hereto as Exhibit C and
incorporated herein by reference.
7, Pursuant to its terms, the Lease terminated on November 30, 1999,
8. There is currently outstanding rent in the amount of$7,083.35 that has not been paid to
and is currently due and owing PLK under the terms of the Lease.
9, There are currently outstanding sewer bills against the Premises for use by the tenant in
the amount of $190.42 which amount has not been paid and is due and owing PLK.
10, Despite requests by PLK, Marchiano has n,fused and continues to refuse to pay PLK the
outstanding amount of$7,273.77 due and owing PLK.
11. Said failure by Marchiano to pay the outstanding amount due and owing PLK constitutes
a material breach of the Lease, thereby entitling PLK to damages in the amount of $7,273.77.
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12. Section 12.08 of the Lease provides as follows:
"Any rent (including charges collectible as additional rent) overdue for a period of
more than five (5) days shall bear interest at the rate of 18% per annum until paid."
13, To date, the interest due and owing PLK as a result ofMarchiano's failure to pay the
outstanding rent amounts to at least $563.3 7,
WHEREFORE, PlaintiffPLK requests this Honorable Court to enter judgment in its favor
and against Defendant Marchiano in the amount of $7,837.14 plus interest at the rate of 18% per
year, costs, attorneys fees and such other additional relief as, this Court deems just and proper.
As and for an alternative cause of action, Plaintiff pleads as follows:
COUNT II
14. The averment of Paragraphs 1 through 13 are incorporated herein by reference as iffully
set forth herein.
15. In late October or early November, 1999, Kostick met with Marchiano at Kostick's
Classic Dryc1eaners and Laundromats store located in Carlisle, Pennsylvania to discuss the
outstanding rent that was due and owing PLK.
16. At said meeting, Marchiano admitted that he was liable to PLK for said outstanding rent.
17, At said meeting, the parties reached an accord and satisfaction whereby Marchiano
agreed to pay and Kostick agree to accept $500.00 per month for seven (7) months, for a total of
$3,500.00, Said montWy payments were to begin in December of 1999.
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18. When Marchiano failed to make the first payment in December of 1999, Kostick
contacted Marchiano, who advised Kostick that since his business was "hurting" he could not
commence making said payments until after the holidays.
19, To date, Marchiano has failed to make any of said montWy payments to PLK
20. Said failure by Marchiano constitutes a material breach of the said accord and satisfaction
reached by the parties, thereby entitling PLK to damages in the amount of $3,500.00,
WHEREFORE, PlaintilIPLK requests this Honorable Court to enter judgment in its favor
and against Defendant Marchiano in the amount of$3,500.00 plus interest, costs, attorneys fees and
such other additional relief as this Court deems just and proper.
Respectfully submitted,
Laws, Staruch & Pisarcik
20 Erford Road, Suite 305
Lemoyne, P A 17043
(717) 975-0600
Attorney for PlaintilIPLK Properties
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EXHIBIT A
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ltOB'.r:tClt/J'BANCEBCO ll'ULU LDSE
'.rULE 01' COB'.rEH'.rB
~ICLE J.. n:RM . . . . . . . . . . . . . . . . . 1
ARTICLE' 2. RENT . . . . . 4 . . . . . . . . . 2
ARTICLE 3. USE OF PREMISES. . . . . . . . . ..-- . . 3
ARTICLE 4. REPAIRS AND MAINTENANCE. . . . . . . 4
~J:CLE 5. trrIL:tTIES AND TAXES. . . . . . . . . . 5
ARTICLE 6. ALTERATJ:ONS, ADDITIONS, AND
J:MPROVEMEN'l'S . . . . . . . . . 6
ARTICLE 7. TRADE FIXTURES AND SIGNS . . . . . . 7
ARTICLE 8. HECHANJ:CS ' LIENS . . . . . . . . . . 8
ARTICLE 9. INSURANCE AND INDEMNITY. . . . . . . 8
ARTICLE 10. DAMAGE OR DESTRUCTION OF PREMISES. . 10
ARTICLE J.J.. CONDEMNATION . . . . . . . . . . . . . 12
ARTICLE J.2. EVENTS OF DEFAULT. . . . . . . . . . . J.3
ARTICLE J.3. INSPECTION BY LESSOR . . . . . . . 17
ARTICLE 14. ASSIGNHEN'I' AND SUBLEASE. . . . . . . . J.8
ARTICLE J.5. ENVJ:RONHEN'I'AL COMPLIANCE . . . . 18
ARTICLE J.6. ROLES AND REGULATIONS. . . . . . . 21
ARTICLE 17. CONDITION PRECEDENT. . . . . . . . 21
~ICLE 18. MISCEI.LANEOUS. . . . . . . . . . . . 21
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LDSE
This Lease is made and entered this ~9th day of
November, ~993, between Paul L. Kostick, referred to in this
Lease as Lessor, and Francesco Failla, referred to in this Lealse
as Lessee.
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:In consideration of the mutual covenants and agreements
set forth in this Lease, and other good and valuable
consid~ation, Lessor leases to Lessee, and Lessee leases from
Lessor, retail space at the west end of 420 Market Street,
Borough of Lemoyne, cumberland county, Pennsylvania, and more
particularly described on Exhibit A attached-.to this Lease, anlli
referred to herein as the Premises.
U~ZCLE 1.. ~DH
'rem of Lease
1.01 The "Commencement Date" of the term of this Lease
shall be the later of December 1, 1993 or the date when the
Premises and the improvements reguired to be constructed by
Lessor under Paragraph 6.01 hereof shall have been substantialJ~
completed; provided that if Lessee shall take possession of thel
Premises or any portion thereof prior to either of the foreqoil'llg
dates, then the Commencement Date shall be the date on which
Lessee takes such possession~ Unless sooner terminated in
accordance with the terms hereof, the term of this Lease shall
end without the necessity for notice from either party to the
other at 12:0J. a.m. local time on the third (3rd) anniversary of
the first day of the first full cal,endar month during the term
(herein called the "Expiration Date").
When the date of commencement of the term of this lealse
is established, Lessor and Lessee shall promptly execute a
memorandum acknowledqinq same.
Option to Exten4 'l'e:m
J..02 Lessee has the right to extend this Lease beyond
the expiration date provided in Section 1.0~ on the followinq
terms and conditions:
(a) Should Lessee fully perform all of the terms and
conditions of this Lease, Lessee may extend the term of this
Lease for a periOd of three (3) years, with the extended term tOI
begin on the day following the expiration elate of the Lease term
specified in Section 1.01. However, if at the date of expiration
of the original term Lessee is in default beyond any grace period
provided in this Lease for the performance of any of
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the terms or provJ.s1oDS of this Lease, or any event has occurrE!d
which with the giving of notice or passage of time or both could
constitute a default under this Lease, Lessee's exercise of anll'
option exercised and shall be null and void. All of the terms,
covenants, and provisidns of this Lease shall apply to all
extended Lease t:e:ms except that the rent for each such extendeld
term shall be adjusted as set forth in Section 2.01 hereof.
(b) Leasee lIUly exercise _ch option to extend this
Lease by~givingto Lessor notice of its intention to do so not
later than six (6) months prior to the expiration of the initial
Lease term. To constitute effective notice of an intention of
exercise an option linder this Lease, the notice must be sent by
certified or registered mail or nationally recognized overnight
courier to Lessor at the address and in accordance with the
procedures provided in Section 16.01 of this Lease and must be
postmarked no later than the date provided in this Article for
Lessee's exercise of the option.
Bo14ovc'
1.03 If Lessee holds over and wrongfUlly continues il~
possession of the PreDu.ses after expiration of the term of this
Lease or any extension of that term, Lessee will be deemed to ma
occupying the PremiseS at sufferance frCl1ll lIlOnth-to-month tenancy,
without limitatiC)n on any of Lessor's rights or remedies
hereunder and subject to all of the terms and conditions of this
Lease, except that the fixeel rent shall be increased to twice tbe
fixed rent payable for the last lIIQnth of the term of this Lease
prior to the holdover.
Deliv82:Y of po.....ion
1.04 If Lessor is unable to deliver actual possession
of the leased Premises on the commencement date of the term for
any reason beyond Lessor's control, inCluding without limitatiolll,
because the building has not been sufficiently completed to makel
the Premises ready for occupancy, or if repairs or improvements
to be perfOrmed by lessor, are not completed because of the
holding over of a previous occupant, the Lessor shall not be
liable in damages to 'the Less_, and during the period that the
lessor is unable to give possession, no rent shall accrue. No
such failure to give possession shall in any other respect affect
the validity of this lease or any obligation of Lessee hereunder.
D'r%cr.B. 2. Oft
'l'1xecl lleDt
2.01 Lessee agrees to pay to Lessor the sum of one
Thousand One Hundred Fifty ($1,150.00) Dollars per month in
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advance on or ~efore the first day of each month, throughout the
term of this Lease as the fixed rent. The first and last monthly
rent installments shall De paid at the signing of this Lease.
Rent for any fractional month at the Deginning of the Lease term
shall De prorated on a per diem Dasis.
At the conclusion of the third full Lease year and
every Lease year thereafter, should the Lease term' be extended,
the fixed rent for the Premises shall be adjusted annually,
provided --that the fixed rent shall never be less than One
Thousand One Hundred Fifty ($1,150.00) Dollars per month, by
applying fluctuations in the Consumer Price Index as follows:
(a) The Consumer Price Index for the purposes of this
Lease shall be the Consumer Price Index for All Items for All
Urban Consumers (unadjusted), pub1ished by the Bureau of Labor
statistics of the United States Department of Labor. For All
Items, 1982-100. If the Consumer Price Index ceases to be
published by the United states Department of Labor, Bureau of
Statistics, then the calculation shall be based on the closest
successor index as identified by the United states Department ()f
Labor.. If no such successor exists, the calculation shall be
based on an index that is mutually agreed between Lessor and
Lessee.
(b) The Base Date shall be the month of October, 19S13.
(c) The adjusted rent shall be determined by
mUltiplying the fixed rent by a fraction, the numerator of whic:h
shall be the Consumer Price Index for October of the third full.
Lease year and of each Lease year thereafter (the "Comparison
Date"), as the case may be, and the denominator of which shall be
the Consumer Price Index for the Base Date. The resulting sum,
if greater than the fixed rent, shall be the adjusted rent
paYable monthly for the following Lease year.
U!rICLB 3. USB OJ' PRIlHI8BS
Pen.ittad U..
3.01 Lessee may use the Premises to operate and
conduct a restaurant and take-out business, and for no other
purpose, but in any event only in compliance with any applicable
laws, rules, regulations, statutes and applicable ordinances now
or hereafter in effect. Lessee is responsible to procure all
licenses, permits and approvals required to conduct its business
on the Premises. Lessee may not use the Pre1llises for any other
purpose without the prior written consent of Lessor which consant
may be withheld for any reason or no reason, in the sole
discretion of Lessor.
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3.02 Lesse. shall not use or permit the use of the
Premises in any manner that results in waste of 'the Premises or
constitutes a nuisance or violates any statute, ordinance, rultEl,
or requlation applicable to the Premises or for any illeqal
purpose. Lessee, at its sole cost, shall comply, and cause itl;
officers, employees, aqents and invitees to comply with all
applicable laws, ordinances, rules or requlations or any other
requirement of any duly constituteel pUblic authority havinq
jurisdiction over the Premises or the use of the Premises,
includinq, without limitation, the prOVisions of the Americans
with Disabilities Act. -~
D'J!:tCLB ". BB1'1.:t1UI z.JU) 1GDl'J!ZDBCZ
a.pai:. IUld JIaiJltmumCl. by L.....
4.01 Lessee acknowledqes and aqrees that Lessee is
familiar with and has inspecteel the Premises, and has apprised
itself about the surroUndinq properties and neiqhborhood, the
availability or unavailability of pUblic water and sewer or other
utility service to the Premises, and the zoninq and other
requirements applicable to the Premises, and that, except for title
structural improvements identifieel in section 6.01 to made by
Lessor, the Premises is l:HElinq leaseel in its has ish "where is"
condition without any representation by or on behalf of Lessor
concerninq the Premis...
4.02 Lessee shall, throuqhout the term of this Lease
and any extensions of that term, at its own expense and risk,
maintain the leaseel Premises in qood order and condition,
includinq but not limited to, making' a11 repairs and
replacements, renewals and additions, interior and exterior,
ordinary and extraordinary, foreseen, and unforeseen, necessary t:o
keep and maintain the Premises and all systems, equipment and
apparatus appurtenant thereto or used in connection therewith and
improvements (including HVAC and qlass) in good order and
condition. Al.l maintenance, repairs, and replacements required
by this ArtiCle must be performeel promptly when required and in a
manner that will not cause depreciation in the value of the
Premises. Lessee shall return the Premises to Lessor in such
qood order and condition at the expiration of the term. hereof,
, ordinary wear, and tear excepted. Any repairs, replacements,
renewa:l,s and additions and any labor performed or materials
furnished in, on or about the Premises shall be performeel and
furnished in strict compliance with all appliCable laws,
regulations, ordinances and requirements of all duly constituted
municipal authorities or other qovernmental bodies havinq
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jurisdiction over the Premises. PROVIDED, NEVERTHELESS, that
Lessor shall make all necessary structural and roof repairs
required during the term of this Lease, and shall maintain the
parking lot and sidewalk.
4.03 In the event Lessee fails to perform its
obligation to repair, replace, or maintain as set forth in
section 4.02, after a reasonable time after notice from Lessor of
the need for such repair, replacement, or maintenance, Lessor Illay
enter the Premises and make such repairs or replacements, or
perform such maintenance or cause such repairs or replacements to
be made or maintenance to be performed, at its own expense. Upon
Lessor's notice to Lessee of the performance and cost of any
maintenance, repairs, or replacements, Lessee shall immediately
reimburse Lessor for any reasonable costs incurred by Lessor,
together with interest on any such sum at 1 1/2% per month from
the date of the notice until the date paid Dy Lessee to Lessor.
U'rJ:CLE 5. lJ'rJ:LJ:'rJ:ES 1o:ND 'rAXES
Utility Cbarges
5.01 Lessee shall pay all utility charges for water,
elec'tricity, heat, gas, steam, telephone and all other services
or utilities used in and about the leased Premises during the
term of the Lease. ~e Lessee shall pay all such charges
direct.ly to the utility company or municipality furnishing the
service, before the charges shall become delinquent, or shall
reimburse Lessor the cost thereof, in the event Lessor chooses 1;0
furnish same, as Lessor may direct..
Gubage Removal
5.02 Lessee shall be responsible for and shall pay fClr
the removal of all garbage and rUbbish from the leased Premises
during the term of the Lease. '
Personal property 'razes
5.03 Lessee shall be liable for all taxes levied or
assessed against personal property, furniture, or fixtures placed
by Lessee in or on the Premises. If any such taxes for which
Lessee is liable are levied or assessed against Lessor or
Lessor's property,' and if Lessor elect.s to pay them, or if the
assessed value of Lessor's property is increased by inclusion of
personal property, furniture, or fixtures placed by lessee in the
Premises, and Lessor elects to pay the taxes based on such
increase, Lessee shall pay to Lessor on demand that part of the
taxes for which lessee is primarily liable under this Article.
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Real ftopert:y 'laze. and. Asses_lUlu
5.04 Lessar shall pay and fully discharge all real
property taxes andl assessments imposed on the leased Premises
during- the term ot this Lease.
Bat Tal U.. aDd Oacupaucsy 'laz
5.05 It, during the term or this Lease or any renewal
or exte~ion thereor, any tax is imposed upon the privilege or
renting or occupying' the Premises or upon the amount of rentals~
collecteci thererore, Lessee will pay each month, as additional
rent, a SUJII equal to such tax or charge that -i-s imposed fer sucih
month, but nothing herein shall be taken to require Lessee to play
any income, estate, inheritance or rranchise tax imposed upon
Lessor.
U'lICLB 6. U.~TI0!J8, AJ)J)ITIOITS, AJD) ~8
%aproveaeat or l'r8lloi....
6.01 Lesser shall make the followinq improvements to
the Premises: Vanilla.box only.
Couat of L...or
6.02 Lessee shall not make any al teratiens, addi tiolUS
ar improvements to the leaseci Premises without the prior written
consent of Lessor. COnsent far nonstructural alterations,
additions, or improvements shall not be unreasona.bly withheld ~,
Lessor, provided such non-structural alterations, additions or
improvements shall not adversely affect the structural soundness
of the Premises or reduce the value of any. existinq structure or'
improvement.
l'ropUi:y ot Le..or
6.03 AJ.l alterations, additions, or improvements
macie by Lessee shall became the property of Lessor at the
termination of this Lease. Lessor may, however, require that
Lessee remove any ar all alterations, additions, and improvements
installed or macie by Lessee on termination of the Lease. In the
event that Lessor _~equires Lessee to remove such alterations,
acid.itions, ar improvements, Lessee shall repair any ciamaqe or
injury to the ftemis.. causeci by such removal.
6.04 Lessor, at its option, may in any case in which
its consent is required pursuant to Section 6.02 hereof require
Lessee to furnish it with copies or the applica.ble plans and
specifications and any relevant contract between Lessee and any
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contractor or supplier. Lessor may also require, at its option
and as a condition precedent to giving any approval, (i) a
performance bond and a labor and material payment bond, both in
form and substance satisfactory to Lessor, given by an
independent financially responsible corporate surety, to assure
completion of the work in accordance with the plans and
specifications, free of liens, and (ii) evidence that each
contractor has adequate workmen I s compensation insurance and
general liability insurance with unimpaired limits of at least
$1,000,000 for injury to anyone person or injuries in anyone
occurrence and property damage of $500,000, together with a
certificate from the insurer to the effect that such insurance
may not be canceled or substantially modified'without at least :30
days prior written notice to Lessor.
U~J:CId!l 7. ~B J':rr.t'1JRBS ABJ) SJ:GIl8
't:ade J'ix1:ur..
7.01 Lessee has the right at all times to erect or
install shelves, bins, machinery, equipment, or other trade
fixtures in, on, or about the leased Premises, provided that
Lessee complies with a1.1 applicable governmental laws,
ordinances, and requlations reqarding such fixtures. Lessee ha!1
the right to remove all trade fixtures at the termination of this
Lease, provided Lessee is not in default under the Lease and thaLt
the fixtures can be removed without structural damage to the
building. Lesses must repair and restore any damage or injury t:o
the building, structures and improvements now or hereafter
erected on the Premises caused by installation or removal of
trade fixtures, and a1.1 such repairs must be completed prior to
the termination of the Lease. Any trade fixtures that have not
been removed by Lessee at the termination of this Lease shall bel
deemed abandoned by the Lessee and shall automatically become thie
property of Lessor. In the event any trade fixture installed by'
Lessee is abandoned at the termination of the Lease, Lessee must
pay Lessor any reasonable expense actually incurred by Lessor to
remove the fixture from the Premises, provided the fixture is
removed prior to the entrance of any subsequent Lessee onto the
Premises.
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7.02 Lessee may not install any sign or about the
leased Premises without first Obtaining the written approval of
Lessor with regard to the size, ,type, shape, design, color,
material, content, and method of attachment of the sign.
Lessor's approval shall not be unreasonably withheld. Lessee
must, at its sole expense, remove any signs installed on or abou'l:
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the leased premises by Lessee and repair any damage done to th,e
leased Premises or the building in which the leased Premises a~e
located or the land surrOunding the leased Premises by the
installation or removal of the signs. 'l'his removal and repair
must be completed. not. later than the t.erminat.ion date of this
Lease.
DnCLB 8. DCDIIICS' UDS
c 8.01 Lessee shall promptly pay any contractors and
materialmen who supply labor, work or materials to Lessee at. tlle
Premises or the Building so as to avoid the possiDili ty of a lien
attaching to the Premises. Lessee will not permit any mechani,~'s
lien or liens to be placed on the Premises or improvements on t:he
Premises. If a mechanic's lien is filed on the Premises or on
improvements on the leased Premises, Lessee will promptly caUSEI
it to be discharged of record by payment, deposit, Dond, order of
court or otherwise or will pay the lien. If default in payment;
of the lien cont.inues of record for t.wenty days after written
not.ice from Lessor to Lessee, Lessor may, at its option, pay the
lien or any portion of it without inquiry as to its validity.
Any amounts paid by the Lessor to remove a mechanic' s lien caused
to De filed against the Premises or improvements on the premisels
by Lessee, inCluding expenses and interest, shall be due from
Lessee to Lessor and shall be repaid to Lessor immediately on
receipt of notice, together with interest at the rate of 18t per
annum from the date Lessor paid to remove such lien unt.il the
date Lessee repays Lessor. Nothing in this Lease is intended to
authorize Lessee to do or cause any work or laDor to be done or
any materials to be supplied for the account of Lessor, all of
the same to be solely for Lessee's account and at .Lessee's risk
and expense. 'l'broughout this Lease the t.erm "mechanic' s lien" is
used to include any lien, encumbrance or charge levied or impos,ed
upon the Premises or any interest therein or income therefrom on
account of any mechanic's, laborers or mat.erialman's lien or
claim or arising out of any debt or liaDility to or any claim o:~
demand of any contractor, mechanic, supplier, materialman or
laDorer.
U~CLB ,. DtSmlUCB um nmmoc:n
I.ia!::liU'ty ZU1Zrlmoa
9.01 Lessee, at its own expense, shall provide and
maintain in farce during the term of this Lease, comprehensive
general liability insurance- protecting Lessor and Lessee against:
injury or damage to any person or property occurring in, on or
about the Premises or any sidewalks, driveways, parking lot.s or
other areas appurtenant to the Premises. Such insurance shall l:le
in the amount of at least $1,000,000 single limit. for injury to
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anyone person or injuries in anyone occurrence, and $500,000
for property damage, unimpaired. Such policies shall name Les,sor
and Lessee as insureds. This insurance is to De carried by one
or more insurance companies authorized to do lousiness in
Pennsylvania.
B...4y fo: l'a11ur. to P:ovi4. :l:Dauranc.
9.02 Lessee shall furnish Lessor with certificates ,of
all insurance required by this Article. :tf Lessee does not
provide such certificates on Lessor's delivery of possession 'co
Lessee or if Lessee allows any insurance required under this
ArtiCle to lapse, Lessor may, at its option,'b;lke out and pay 11:he
premiums on the necessary insurance to comply with Lessee's
oDligations under the provisions of this Article. Lessor is
entitled to reiml:lurs_ent from Lessee for all amounts spent DY it
to procure and maintain such insurance, with interest at the rate
of 18% per annum from the date of receipt of Lessor's notice of.
payment until reimbursement DY Lessee.
Bo14-Ba:ml... Claus.
9.03 Lessor shall not be responsible for and is hereDY
relieved from all liability for any damage, expense, cause of
action, suits, demands, judgments, and claims of any nature
whatsoever, arising f:om or by reason of any injury to any person
or persons or any damage to any property which may arise from any
cause (incluciinq, without limitation, negligence of Lessor or its
aqents, servants or employees), Or from present Or future
structural defects or other conditions in, on or about the
Premises or any part thereof or any sidewalks, streets,
ciriveways, rights-of-way or roadways adjacent thereto, or in an:\,
manner growinc; out of or connec:ted with the use and occupancy o:f
the Premises or any part: thereof by Lessee or any other party
during the term of this Lease or any renewal or extension
thereof. Lessee accep1:s and assumes such liability and agrees 1:0
protect, indemnify and hold Lessor harmless against any and all
liability, claims, demands, damages, costs, and expenses,
inCluding reasonable attorneys' fees for the defense of such
claims and demands, arising from the conduct or management of
Lessee's business on the Premises, or its use of the Premises OJ:~
from any breach on the part of Lessee of any conditions of this
Lease, or from any: act or negligence of Lessee, its agents,
contractors, employees, sublessees, concessionaires, or licenseEls
in or about ,the Premises. In case of any action or proceeding
brought against Lessor by reason of any such claim, Lessee, on
notice from Lessor, agrees to defend the action or proceeding.
This shall not be construed as in any way limiting Lessee I s
Obligations under Article g.
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9.04 The insurance pOlicies referred to above shall be
underwritten by insurance cOlllpanies with Best's "A" rating or
better. Lessee shall deliver to Lessor certificates of all
insurance policies on or before the first daY of the term hereiof
and thereafter ten days prior to the execution of any such
policy. Lessee shall aJ.so deliver to Lessor receipts evidencing
payment of aJ.l insurance premiums, which delivery shall be at
least ten l1ays prior to the l1ate such premiWll& are due.
U~:rCLB 10. 1'l.......~B OR nuuu=:rOJl OF PRBH%SBS
10.01 Xf the Premises should be damaged or destroyelt!
by fire, flood, or other casualty, Lessee shall give immediate
written notice of the damage or destruction to Lessor, includilllg
a description of the damage and, as far as known to Lessee, thlil
cause of the damage.
~otal DeS1::Uct:!oD
10.02 If the Premises are totally destroyed by fire I'
flood, or other casuaJ.ty not the fault of Lessee or any person in
or about the Premises with the express or implied consent of
Lessee, or if the Premises should he so damages by such a' caUSEI
that rebuilding or repairs cannot, in Lessor's reasonable
juclgment, he completed within ninety (.90) calendar days and at a
cost not to exceed available insurance proceeds, this Lease shalll
terminate, and rent shall he abated for the unexpired portion of
this Lease, effective as of the date of written notification as,
provided in Section 10. 01.
Pa:t:ia1 n..t:ua1::i.oD
10.03 If the Premises are damaged by fire, flood, or
other casualty not the fault of Lessee or any person in or about
the Premises with the express or implied consent of Lessee, but
not to such an extent that rebuilding or repairs cannot
reasonably be completed within ninety (90) calendar days and at a
cost not to exceed available insurance proceeds, this Lease shall
not be terminated except as provided in Subparagraphs (a) and
(b) .
(a) Xf the partial destruction of the Premises OCcurl1
prior to the final six (6) months of the then current Lease term,
Lessor shall, at its soJ.e cost and risk, proceed immediately to
rebuild or repair the damaged buildinqs and improvements to
substantially the condition in which they existed prior to such
damage; provided, however, that'Lessor shall not be required to
expend monies in excess of insurance proceeds made available to
Lessor for such purpose. Xf the Premises are untenantable in
whole or in part foJ.J.owing such damage, the rent payable during
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the period in which they are untenantable shall be adjusted
equitably. In the event that Lessor should fail to complete such
rebuilding or repairs with ninety (90) calendar days from the
date of written notification by Lessee to Lessor of the
occurrence of the damage, Lessee may terminate this Lease by
written notification to Lessor. On such notification, all ri~~ts
and obligations under this Lease shall cease.
(b) If partial destruction of the Premises occurs il:1
the fina~ six (6) months of the then current Lease term, or if
any mortgagee hOlding a lien' on the Premises refuses to permit
insurance proceeds to be applied to the restoration of the
Premises, or if the insurance proceeds available for restoraticln
are not sufficient to restore the Premiseli to substantially its;
condition prior to the casualty, Lessor need not rebuild or
repair the Premises and shall notify Lessee in writing of its
intention not to rebuild or repair. If Lessor elects not to
rebuild or repair the Premises and the Premises are untenantable
in whole or in part following such damage, Lessee may elect to
terminate the Lease as of the date of Lessee's .notice described.
in Section 10.01 above or to continue the Lease with the rent for
the remainder of the Lease period adjusted equitably. Lessee
shall notify Lessor of such election within ten (10) days after
receipt of Lessor's notice described above.
n~CLJ: 11. CD1mBHHA~OJI
'.rotal Con4em:naticm
11.01 If the whole of the Premises shall be taken by
any public or quasi -public authority under the power of eminent
domain, condemnation, or expropriation, or, in the event of a
conveyance in lieu thereof, then this Lease shall terminate on
the date when title vests in the condemning authority. Rent
shall abate and Lessee shall have no claim against Lessor or the
condemning authority for the value of the unexpired term of thi!~
Lease.
Partial Con4em:nation
11.02 If any part of the Premises shall be so taken or
conveyed and if such partial taking or conveyance shall render
the Premises unsuitable for the business of the Lessee, or if in
Lessor's sole opinion, it would be impractical or the
condemnation proceeds are insufficient to restore the remainder
of the Premises, then the term of this Lease shall cease and
terminate as of the date on which title to the Premises vests in
the condemning authority. Lessee shall have no claim against
Lessor or the condemning authority for the value of any unexpired
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portion of this lease. In the event such partial takinq or
conveyance is not extensive enouqh to render the Premises
unsuitGle for the business of Lessee, this Lease shall continue
in full force and effect except that the rent shall be adjusted
equitably during the unexpired portion of the Lease.
L...ozo". Damag..
11.03 In the event of any condemnation or taking,
whether whole or partial, the Lessee shall not be entitled to alny
part of the award. Lessee hereby expressly waives any riqht OJ:'
claim to any part of such amount and assigns to Lessor any sucb
riqht or claim to which Lessee might become entitled.
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11.04 Although all damages in the event of any
condemnation are to belong to the Lessor, Lessee shall, have the
riqht, to the extent that it shall not diminish the Lessor's
award, to claim and recover from the condemninq authority, such
compensation as may be separately awarded or recoverable by
Lessee 'under the EIIlinent Domain Code in Lessee's own riqht for l:Jr
on account of, and limited solely to, anY cost to which Lessee
miqht be put in r8lllOvinq Less_'s merchand1se, furniture,
fixtures, leaseholcl imprOV8lll8l1ts, and equipment.
!rap01'UJ' !r.Ir~"g
1.1. OS If the condemnor should take only the riqht to
possession for a fixed periOd of time or for the duration of an
emerqency or other temporary condition, then notwithstanding
anything hereinabove providecl, this Lease shall continue in fuU
force and effect without any abatement of rent, but the amounts
payable by the condemnor with respect to any period of time priclr
to the expiration or sooner termination of this Lease shall be
paid by the condemnor to Lessor and the condemnor shall be
considered a sUbtenant of Lessee. Lessor shall apply the amount:
received from the condemnor applicable to the rent due hereundeJ:'
net of costs to Lessor for the collection ,thereof, or as much
thereof as may be necessary for such purpose, toward the amount
due from Less_ as rent for the period; and, Lessee shall pay to
Lessor any deficiency between the amount thus paid by the
condemnozo and the amount of the rent, or Lessor shall pay to
Lessee any excess"af the amount of the award over the amount of
the rent.
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U!rZCLB u. Av...-t8 01' DBJ'1UI.'l
12.01 The following events or anyone or more of them
shall be eventa of default uncler this Lease:
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(a) Lessee shall fail to pay any fixed rent,
additional rent or other sum payable hereunder; or
(b) Lessee shall fail to perform or comply with any of
the other terms, covenants, agreements or conditions hereof (arid
such failure shall continue for more than five (5) days after
written notice thereof from Lessor) or (provided, if the defauJ.t
cannot be cared within five (5) days), Lessee shall not be
considered in default if Lessee shall, within such period, haVEt
commenced with due diligence,anc1dispatch to cure.such default,
and shall thereafter camplete with due diligence the caring of
such default; or
(c) Lessee shall make a general assignment for the
benefit of creditors, or shall admit in writinq its inability t,o
pay its debts as they bec01lle due, or sha1.l file a peti1;ion in
bankruptcy, or shall be adjudicated a bankrupt or insolvent, or
shall file a petition seekinq any reorganization, arrangements,
composi1;ion readjus'bnem:., liquidation, dissolU1:ion or similar
relief under any present or future statute, law or regulation, or
shall file an answer admittinqor not contesting the material
allegations of a petition against it in any such proceeding, or
shall seek or consent to or acquiesce in 'the appointment of any
trustee, receiver or liquidator of Lessee or any material part of
its properties; or
(d) If within 60 days after the commencement of any
proceedinq against Lessee seeking any reorganization,
arrangement, composition, readjustment, liquidation or
dissolution or similar relief under any present or future
statute, law or regulation, such proceedinq shall not have been
dismissed, or if, within 60 days after the appointment without
the consent or acquiescence of Lessee, of any trUstee, receiver
or liquidator of Lessee, or of any material part of its '
properties, such appointment shall not have been vacated.
1.2.02 In the event of any such event of default
(regardless of the pendency of any proceeding which has or migh1"
have the effect of preventing Lessee from complyinq with the
terms of this Lease), Lessor at any time thereafter may exereist!
anyone or lIIOre of the followinq re1llEldies:
(a) Termination of Lease. Lessor may terminate this
Lease, without any riqht by Lessee to reinstate its riqhts by
payment of rent due or other performance of the terms anel
conditions hereof. Opon such termination Lessee shall
immediately surrender possession of the Premises to Lessor and
Lessor shall immediately become entitled to receive from Lessee
damages equal to the difference between the aggreqate rentals
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reserved for the balance of the term and the fair rental value of
the Premises for that period, determined as of the date of such
termination.
(b) Relettinq. With or without terminatinq this
Lease, as Lessor may elect, Lessor may re-enter and repossess 1~e
Premises, or any part thereof, and lease them to any other person
or entity upon such terms as Lessor shall deem reasonable, for a
term within or beyoncl the term of this Lease; provided, that any
such relettinq prior to termination shall be for the account o:l~
Lessee, and Lessee shall remain liable for (a) all minimum ren1;,
adc1itional rent and other sums which would be payable under this
Lease by Lessee in the absence of such expiration, termination or
repossession, less (b) the net proceeds, if any, of any reletti.nq
(inClUding, without limitation, all repossession costs, brokeraLqe
commissions, legal expenses, attorneys' fees and expenses,
employees' expenses, reasonable alteration costs,ancl expenses of
preparation for such relettinq).
If the Premises are at the time of default sublet or
leased by Lessee to others, Lessor may, as Lessee's agent,
collect rents due from any subtenant or other tenant and apply
such rents to the rent and other QlOunts due hereunder without in
any way affectinq Less~' s Obligation to Lessor hereunder. Such
agency, being given for security, is hereby declared to be
irrevocable.
(c) Acceleration of Rent. Lessor may declare rent a:11Cl
all items of additional rent for the entire balance of the then
current term immediately due and payable, together with all OthlEl%"
charges, payments, costs, and expenses payable by Lessee as
thouqh such amounts were payable in advance on the date the eVeJl1t
of default occurrec1.
(i) No expiration or termination of this Lease term
pursuant to Section 12.02(a) hereof or by operation of law or
otherwise (except as expressly providec1 herein), and no
repossession of the Premises or any part thereof pursuant to
Section 12.02(b) hereof or otherwise shall relieve Lessee of its
liabilities and obliqations hereunder, all of which shall survive
such expiration, termination or repossession, and Lessor may, at.
its option, sue for and collect rent and other charges due
hereunder at any~ime and from time to time as and when such
cbar9'ea accrue.t
12.03 With respect to any portion of the Premises
which is vacant or which is physically occupiec1 by Lessee, Lessclr
may remove all persons and property therefrom, and store such
property in a public warehouse or elsewhere at the cost of and
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for the account of Lessee, without service of notice or resort to
legal process (all of which Lessee expressly waives) and withou.t
~eing deemed guilty of trespass or ~ecoming liable for any loss
or damage which may ~e occasioned thereby. Lessor shall have a
lien for the payment of all sums agreed to ~e paid ~y Lessee
herein upon all Lessee's property, which lien is to ~e in
addition to any Lessor's lien now or hereafter provided ~y law.
1.2.04 The parties hereby waive trial ~y jury in any
action, proceeding, or counterclaim ~rought ~y either of them
against the other on any matters arising out of or in any way
connected with this Lease, the relationship of Lessor and Lessee,
Lessee's use or occupancy of the Premises, anal or any claim or
injury or damaqe. In the event Lessor cOlDlllences any proceeding,s
for non-payment of rent or additional rent, Lessee will not
interpose any counterclaim of any nature or description in any
such proceedings. This shall not ~e construed, however, as a
waiver of Lessee's right to assert any such claims in any
separate action brought by Lessee.
12.05 Lessee hereby expressly waives any and all
rights' of redemption granted ~y or under any present or future
law in the event this Lease is terminated or Lessee is evicted IJr
dispossessed by reason of violation by Lessee of any of the
provisiona of this Lease.
12.06 In the event of breach or threatened ~reach by
Lessee of any provision of this Lease, Lessor shall have the
right of injunction as if other remedies were not provided for
herein.
12.07 No right or remedy herein conferred upon or
reserved to Lessor is intended to ~e exclusive of any other right
or remedy herein or ~y law provided, ~ut each shall ~e cumulati"e
and in addition to every other right or remedy given herein or
now or hereafter existing at law or in equity or ~y statute.
12.08 Any rent (including charges collectible as
additional rent) overdue for a period of more than five (5) daY!1
shall ~ear interest at the rate of 18% per annum until paid.
12.09 If Lessee shall default in the performance of
any covenant required to be performed by it under this Lease,
Lessor may perform the same for the account and at the expense elf
Lessee, after first giving notice to Lessee of its intention to
do so. ~f Lessor at any time is compelled to pay, or elects to
pay, any sum of money, by reason of the failure of Lessee to
comply with any provisions hereof, or if Lessor is compelled to
incur any expense, including reasonable counsel fees, in
;!.:}
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instituting, prosecuting or defending against any action or
proceeding instituted by reason of any default of Lessee
hereunder, the amount of such payments or expenses shall be paid
by Lessee to Lessor as additional rent on the next day follo"ing
such payment or the incurring of such expense upon which a
regular monthly rental payment is due, together with interest
thereon at the rate of 18% per annum.
12.10 No waiver by Lessor of any breach by Lessee of
any of ~ ts obligations, agreements or covenants hereunder shall
be a waiver of any subsequent breach or of any other obligation,
agreement or covenant, nor shall any forbearance by Lessor to'
seek a. remedy for any breach by Lessee be a waiver by Lessor of
its rights and remedies with respect to such or any subsequent
breach.
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12.11 Lessee expressly waives any right of defense
which it may have based on any purported merger of any cause of
action, and neither the commencement of any action or proceeding
nor the settlement thereof or entering of judgment therein shall
bar Lessor from bringing subsequent actions or proceedings frlCJII
time to time.
'mE FOLLOWDtG SECTIONS SE'!' FOR'rH WABRAN'rS OF AU'I'HOR:l:TY
FOR AN ATTORNEY '1'0 CONFESS JtJDGMEN'l' AGAINST MAKER. IN GRAN'l'Il~G
'!'HIS RIGH'!' '1'0 CONFESS JUDGHEN'l' AGAINST LESSEE, LESSEE HERERV
KNOWINGLY, IN'l'EN'l'IONALLY AND VOLtlN'l'ARILY, AND, ON THE .
ADVICE OF THE SEPARA'l'E COmTR'Il!T. OF. LESS~ UNCONDI'l'IONALLY WAIVES
ANY AND ALL RIGH'l'S LESSEE ~ OR MAY-HAVE '1'0 PRIOR NOTICE AND AN
OPPOR'l'ONI'l'Y FOR ~G UNDER '!'HE RESPECTIVE CONSTI'1'O'l'IONS AND
LAWS OF 'mE tnll:.l:JW STA'l'ES AND '!'HE COMMONWEALTH OF PENNSYLVANIA.
12.12 LESSEE HEREBY EMPOWERS ANY PROTHONOTARY OR
ATTORNEY OF ANY COlJR'l' OF, RECORD TO APPEAR FOR LESSEE IN ANY AND
ALL ACTIONS WlttCH MAY BE BROUGHT FOR REN'l' ANDIOR THE CHARGES,
PAYMEN'l'S, COSTS AND EXPENSES HEREIN' RESERVED AS RENT, OR HEREIN
AGREED '1'0 BE PAID BY LESSEE ANDIOR '1'0 SIGN FOR LESSEE AN
AGREEMENT FOR EN'nRING IN ANY COMPE'!'EN'l' CO'DR'l' AN AMICABLE ACTION
OR ACTIONS FOR 'mE RECOVERY OF SUCH REN'1' OR OTHER CHARGES OR
EXPENSES, AND IN SAID SUI'l'S OR IN SAID AMICABLE ACTION OR ACTIONS
TO CONFESS JUDGMENT AGAINST LESSEE FOR ALL OR ANY PART OF 'rHE
RENT SPECIFIED IN 'l'HIS LEASE AND THEN DUE AND UNPAID, AND OTHER
CHARGES, PAYMENTS, COSTS AND EXPENSES RESERVED AS RENT OR AGREED
TO BE PAID BY LESSEE AND THEN DUE AND UNPAID, AND FOR INTEREST
AND COSTS TOGETHER WITH A REASONABLE AT'l'ORNEY' S COMMISSION OF
15%. SUCH AU'I'HORITY SHALL. NOT ,BE EXHAUSTED BY ONE EXERCISE
THEREOF, BUT JUDGHENT MAY BE CONFESSED AS AFORESAID FROM TIME ~ro
TIME AS OFTEN AS ANY OF SAID RENT AND lOR OTHER CHARGES RESERVElI>
AS RENT OR AGREED '1'0 BE PAID BY LESSEE SHALL FALL DUE OR BE IN
ARREARS .
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12.13 upaN 'rHE EXPIRATION OF 'rHE THEN ctlRREN'1' TEIU! OIl'
THIS LEASE OR 'rHE EARLIER TERMINATION all. SDRRENDER HEREOF AS
PROVIDED IN THIS LEASE, IT SHALL BE LAWP'OL FOR ANY ATTORNEY '1'0
APPEAR AS A'l"I'ORNEY FOR LESSEE AS WELL AS FOR ALL PERSONS CLAIMING
BY, THROUGH OR UNDER LESSEE AND TO SIGN AN AGREEHEN'l' FOR ENTERING
IN ANY COMPE'l'EN'l' COtlR'1' AN AMICABLE ACTION IN EJEC'l'HEN'l' AGAINST
LESSEE AND ALL PERSONS CI.AIMING BY, THROUGH OR ONDER LESSEE AND
THEREIN CONFESS JUDGHEN'l' FOR THE RECOVERY BY LESSOR OF POSSESSIIDN
THE HEREDf PRDaSES, FOR WHICH THIS LEASE SHALL BE ITS SUFFICIENT
WARRANT, "WHEREtn>ON, IF LESSOR. SO DESIRES, A WRIT OF POSSESSION I::JR
OTHER APPRQPRIATE WRIT UNDER THE RULES OF CIVIL PROCEDURE THEN :m
EFFECT HAY ISSUE FOR'rBWZ'l'H, WI'l'H0tl'1' ANY PRJ:OR WRIT aR
PROCEEDINGS; PR.OVJ:DED, HOWEVER, IF FOR ANY RUSON AFTER SUCH
ACTION SHALL HAVE BEEN COMMENCED, THE SAKE SHALL BE DETERMINED
AND THE POSSESSJ:ON OIl' THE PREK:tSES HEBEBY DEMJ:SED R1!:MAZN IN OR I~E
RESTORED TO LESSEE, LESSOR SHALL HAVE THE RJ:GH'l' FOR THE SAME
DEFAULT AND UPON ANY stmSEQTJEN'l' DEFAULT OR DEFAULTS, OR UPON '1'HE
TERMINATION OF 'l'HJ:S LEASE ONDER ANY OF THE TERMS OF THJ:S LEASE ~~O
BRING ONE OR MORE FtlR'1'HER AMICABLE ACTION OR ACTIONS AS
HEREnnlEFORE SET FORTH '1'0 RECOVER POSSESS,ION OF THE SAID PREMISES
AND caNFESs JUDGMEN'l' FOR THE RECOVERY OF POSSESSION OF THE
PUHISIS AS BEREmABOVE PROVIDED.
12.14 IN ANY AMICABLE ACTION OF EJEC'l'HEN'l' AND/OR FOR
RENT IN ARREARS, LESSOR SHALL FIRST CAUSE '1'0 BE FILED IN SUCH
ACTION AN AFnDAVJ:'1' MADE BY IT OR SOMEaNE ACTING Fall. IT, SE'l"l'INGi
FOR'l'B THE FACTS NECESSARY TO AtJ'l'HORJ:ZE THE ENTRY OF JUDGMENT,
AND, IF A TRUE COPY OIl' THIS LEASE (AND OF THE TRUTH OF THE COpy
SUCH AFFIDAVIT SHALL BE SUFFICJ:EN'1' E'nDEHCE) BE FILED IN SUCH
ACTION, IT SHALL NOT BE NECESSARY TO FILE '!'HE ORIGINAL AS A WAR-
RANT OF A'l"I'ORNEY, ANY RULE OF COURT, CUSTOM OR PRACTICE TO THE
CONTRARY NO'1'WJ:THs'1'ANDING. LESSEE HERESY P1l'T.1l!UES TO LESSOR AND
TO ANY AND ALL A'l"I'ORNEYS WHO HAY APPEAR FOR LESSEE ALL ERRORS IN
SAID PROCEEDINGS AND ALL LIABILITY THEREOF. IF PROCEEDINGS SHALL
BE COMMENCED BY LESSOR '1'0 RECOVER POSSESSION ONDER '!'HE ACTS OF
ASSEMBLY AND RULES or CIVIL PROCEDURE, EITHER A'1'THE END OF THE
'1'EBH OR EARLIER '1'ERMINA'1':ION OF THIS LEASE, OR FOR NON-PAYMEN'l' OF
REN'l' OR ANY OTHER REASON, LESSEE SPECIFICALLY WAIVES THE RIGHT '1'10
THE 3 MONTHS' NOTICE AND '1'0 THE 15 OR 30 DAYS' NOTICE REQUIRED
BY THE LANDLOBD AND TEHAN'!' ACT OF 1951, AND AGREES THAT 5 DAYS'
NOTICE SHALL BE SUFFICIENT IN EITHER OR ANY SUCH CASE.
~%CItB U. DlSPBC'nCDl BY LBSSDa
13.01 Lessee shall permi~ Lessor and Lessor's aqents,
represen~ati ves, and employees to enter the Premises a~ all
reasonaDle times for the purpose of inspection, repair or any
other purpose necessary to protect Lessor's interest in the
Premises or to perform Lesser's du~ies under this Lease.
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D!I!J:CI.B 14. US:rI:UUU!r lUll) SDBLDSB
&.819"""_t IUId S1dIlettin9 ~ I.ess_
14.01 Lessee may not sublet, assilJll, encumber, or
otherwise transfer this :Lease, or any right or interest in this,
Lease or in the Premises or the improvements on the Premises,
withol1t the prior written consent of Lessor, which consent may be
wit:hheld in Lessor's sole discretion. :rf Lessee sublets,
assigns, encumbers, or otherwise transfers its rights or
interests in this Lease or in the PrBlllises or the iJlIprovements on
the Premises witho\lt: the written consent of Lessor, Lessor may,
at its option, declare this Lease terminated.'- :rn the event
Lessor consents in writing 1:0 an assignment, sublease, or other
transfer of all or any of Lessee's rights under this Lease, the
assignee or sublessee must assume all of Lessee's obligations
under this Lease, and Lessee shall remain lia))le for every
Obligation W1der the Lease.
aasi;DaDt ~ I.essor
14.02. Lessor may assign or transfer any or all of i~t:s
interests under the te:ms of this Lease.
D!l!%CI.B 15. _YJ."~ax. c:oJOI.J:UCB
15.01 Without limitinq the generality of any
provisions set forth elsewhere in this Lease, Lessee agrees as
follows:
(a) Lessee shall not (either with or without
negliqence) cauae or pe:mit the escape, disposal or release of
any HazilrcloUB Substances, as hereinafter defined., on, in or undnr
the Premises. Lessee shall not allow the storage or use of SUell
substances in any manner not sanctioned. by law or by the highest:
stanclards prevailinq in the industry for the storage and use of
such substances, nor allow to be brought onto the Premises any
such substances except 1:0 use in the ordinary course of Lessee'sl
business, and then only after written notice is given to Lessor
of (1) the identity of such substances, and (2) the method for
preventinq the escape of any such substances, and Lessor's priol'
written approval is qranted.. Lessee covenants and agrees that
the Premises will, at all times during' its use or occupancy
thereof, .be kept -iinc:l maintained. so as to comply with all now
existing' or hereafter enacted. or issued. statutes, laws, rules,
ordinances, orders, permits and regulations of all state,
fed.eral, local, and other qovernmental and requlatory
authorities, agencies and bodies applicable to the Premises,
pertaininq to environmental matters, or requlatinq, prohibitinq
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or otherwise having to do with Hazardous Substances and all otl:ler
toxic, or hazardous wastes (collectively called "Environmental
Laws"). Lessee shall execute affidavits, representations and t:he
like fram time to time at Lessorls request concerning Lesseels
best knowledge and belief without limiting any of the obligaticlns
of Lessee under the provisions set forth in this Lease. LesseE'
aqrees to clean up all spills and discharges of Hazardous
Substances on the Premises in a manner which shall comply with
all appliCable environmental laws. Lessee shall notify Lessor in
writinq of all such incidents.
" (b) Lessee shall immediatelY deliver to Lessor II. copy
of any summons, citation, directive, notice, "complaint, letter or
other communication fram any federal, state or local
environmental agency, Concerning any alleged violations of any
environmental laws or requlations on the Premises, or concemin'9
any investigation or request for info:rJllation relating to the use,
generation, handling, treatment, storage or disposal of Hazardous
Substances in connection with the Premises.
(e) Upon request, Lessee shall cooperate inobtaininliJ
evidence of compliance with any environmental law, requlation,
ordero! any governmental authority, which cooperation may
include, without limitation, providin; affidavits, reports or
responses to questions. Lessee shall provide access to the
Premises, upon request, far inspections and testing of the
Premises regardinq the presence of HazardOUS Substances.
(d) Lessor and its engineers, technicians, and consul-
tants (collectively the "Auditors") may, fram time to time as
Lessor deems appropriate, conduct periodic tests and examinations
("Audits") of the Premises to confirm and monitor Lessee's
compliance with the Lease. SUch Audits shall be conducted in
such a manner as to minimize the interference with Lessee's
permitted activities on the Premises; however, in all cases, thEt
Audits shall be of such nature and scope as shall be reasonably
required by then existin; technology to confirm Lessee's
compliance with this Lease. Lessee shall fully cooperate with
Lessor and its Auditors in the conduct of such Audits.
(e) Lessee shall indemnify, defend and hold Lessor,
its partners, affiliates, parents, officers, directors and em-
playees, and other occupants of the Premises (collectively,
the n:tndemnitees"f, free, harmless and, indemnified fram any
expenses, penalties, fines, claims, demands, liabilities, costs,
personal injuries, property.damage, actions and causes of action,
suits, debts, jucllJlllents, demands or charges whatsoever which the
:tndemnitees shall or may incur, or which any such party would
otherwise incur, by reason of Lessee I s failure to comply with
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this Lease including, DUt not limited to: (i) the cost of
Dringing the Premises into compliance with all laws; (ii) the
reasonal:1le cost af all appropriate tests and examinations af the
Premises to confirm that the Premises has Deen Drought into
compliance with all laws; and (iii) the reasonable fees and
expenses of the Indemnitees' attorneys, engineers, and
consultants incurred ):)y the Indemnitees in enforcing and
confirming compliance with this Lease.
(f) The covenants contained in this Article shall
survive the expiration or termination of this Lease, and shall
continue for so long as Lessor and its successors and assigns,
and the ~ndemnitees, may De subject to any expenses, oDliqations,
penalties, fines, claims, demands, liabilities, costs, personal
injuries, property damaqe, actions and causes of action, suits,
del:lts, judgments, deman4s or charges whatsoever aqainst which
Lessee has agreed to indemnity the Indemnitees under this Leasle.
(q) All terms, except as otherwise defined herein,
shall have the meaninqs as set forth in the Lease. For purposes
hereof, Hazardous Su!:Istances shall mean (i) any "Hazardous
Substance", "Pollutant" or "Contaminant" (as defined in sectioln
101(14) and (33) of the Comprehensive Environmental Response and
Compensation and Liability Act ("CERCLA"), 42 U.S.C.A. Section
9601(14) and (33)) or 40 C.F.R. Part 302; (ii) any hazardous
substance, hazardous waste or solid waste, as those terms are
defined in applicable state or local law; (iii) any substances
containing petroleum as that term is defined in section 9001(8)
of the Resource conservation and Recovery Act, as amended, 42
U.S.C.A. Section 6991(8) or 40 C.F.R. 280.1; or (iv) any other
substance for which any qovernmental entity requires special
handlinq in its collection, storage, treatment or disposal.
(h) Lessor represents and warrants that, to the Des1:
of Lessor's knowledqe:
(1) No notice has been qiven to Lessor, by any
governmental authority or any person claiminq any violation of"
or requirinq compliance with, any federal, state or local
statute, ordinance, requlation or other requirement of an
Environmental Law, or demanding remediation of or payment of
contril:lution for any environmental contamination or any damagel;
attril:lutable thereto;
(2) There are no underqround storaqe tanks or septic:
systems, located at the Premises;
(3) No investigation, administrative order, consent
order, lien, superlien or agreement, litiqation or settlement
with respect to any Hazardous Substance of any kind located on.,
about or under all or any portion of the Premises exists, is
pendinq, proposed, threatened or anticipated.
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(i) Lessor shall defend, indemnify and hold Lessee
harmless from and a9ainst any liability, loss, damage, costs and
expense suffered, incurred or threatened as a result of any
breach of any representation or warranty hereunder or as a resu,l t
of notice, complaint, claim, demand, suit, order, judgment or any
le9al requirement, includin9 without limitation of the generality
of the foregoing, court costs, attorney's and consultant's fees,
environmental Clean-up costs, natural resources dameges, fines,
penalties and dameges to persons, personal property, real
property and business enterprises, arisin9 out of or relating to
an environmental COndition on the Premises caused by Lessor.
D~%CLB 16. BULBS um UQUUftOB&
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16.01 Lessor shall have the ri9ht to make reasonable
rules and re9Ulations for the purpose of ensurin9 or enhancin9
the safety, care, cleanliness, maintenance, or preservation of
the Premises and cCl1ll1llon area., as well as for the purpose of
preservin9 900d order in and on the Premises and cCl1ll1llon areas.
(specifically includin9 but not limited to the.allocation and
identification of parkin9 spaces amon9 tenants.) Lessee and i tll
officers, employees, agents, and invitees agree to be bound by
any such rules and re9UJ,ationson receipt by lessee of written
notice from Lessor setting forth same, and any changes, adciitioJUI
and/or deletions. ' Lessee shall be responsible for the complianc:e
of its Officers, employees, and invitees with all such rules and
regulations.
~ICLB 17. CmmrnOB PBBCZDJDI'!
17.01 This Lease is expressly conditioned upon the
acquisition of fee simple title to the premises by Lessor. Should
such settlement not occur for any reason, Lessor shall return aJ.l
said rent payments to Lessee, and neither party shall have any
liability to the other hereunder.
D!I!%CLB 18. JaSlC..,..T........aU8
I 18.01 All notices r.quired under this Lease shall be
effe~ively given only if by certified mail, registered mail, or'
nationally reco9!1ized overnight courier service, addressed to thle
proper party, at the following addresses:
Lessor
Paul L. Kostick
41 Georg'e Circle
Mechanicsburg., PA 17055
W. Scott S1:aruch, Esquire
20 Erford Road, Suite 215
Lemoyne, PA 17043
with a copy to:
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Lessee
Francesco Failla
663 Wynaamere Roaa
Lewisberry, PA 17339
with a copy to:
Either party may chanqe the aaaress to which notices
are to be sen1: by qi vinq the other party notice of the new
adc1ress in the manner provided. in this Sec1:ion:o
Pafti_ BoUDd
18.02. ~s Lease shall be bindinq on, and inure to
the benefit of, the parties to the Lease and their respec1:ive
heirs, executors, administrators, leqal representatives,
successors, and assigna when parmi ttecl l:Iy 'this Lease.
PalWy1vaDia Law 1:0 App17
18. 03 ~s agreement shall be qovernecl by and
construecl under 'the laws of 'the Cf'nI\ponweal'th of Pennsylvania.
Lega1 COJuI~at:ioll
18.04 In the event any one or more of the provisions
contained in 'this agreement shall for any reason be held by a
court of competent jurisdic1:ion to be invalid, illeqal, or
unenforceilDle in any respect, such invalidity, illeqali ty, or
unenforceability shaJ.J. not affec1: any other provision of 'the
agreement, and this agreement shall be const:ruea as if 'the
invaJ.ia, illeqaJ., or unenforceilDle provision haa never been
included in 'this agre8llllJlt.
ftior Ag:e-.z&'1:8 sup..:.eded
18.05 Tonis Lease constitutes the only agreement
be1:ween the Lessor and Lessee ana supersedes any prior
under$1:andinqs or written or oral agreemen1:s between the partiesl
respec1:in; the su})jec1: matter of this Lease.
s.-9>>><I_.t
18.06 No amendment, modification, or alteration of the
terms of this Lease shaJ.J. ~ bindinq unless it is in writinq,
dated su})sequent to 'the da1:e of 'this Lease, and duly executed by
the Lessor and Laasee.
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Atto:n.ys' :r..s and Costs
18.07 In the event that at any time during- the term of
this Lease either Lessor or Lessee shall institute any action c'r
proceeding- ag-ainst the other relating- to the provisions of this
Lease or any default of this Lease, then the unsuccessful party
shall reimburse the successful party for reasonable attorneys'
fe8ll anct expens8ll incurred to enforce the Lease,
UDavoidal:ll. D.lay
" 18.08 Except for the payment of rent, utility charges,
and other sums of money to be paid under this '""Lease, neither
Lessor nor Lessee shall be required to perform any term,
condition, or covenant in this Lease so long as such performance
is hindered or prevented by unavoidable delays. For purposes of
this Section, unavoidable delays shall be defined as natural
disasters: strikes, lockouts, or labor disputes: governmental
re9Ulations, restrictions, or controls: enemy or hostile
goverJ'lment action: civil riots; fire, floods, or nuclear
accident; or any other cause not reasonably within the control lof
Lessor or Lessee and that by the exercise of due diligence Lesslor
or Lessee is unable, wholly or in part, to prevent or overcome.
~.bae ofbsua.
18.09 'rime is of the essence of this aqreement.
QUiet bjoyunt
18.10 Lessee, upon paying- the rent and. upon observinlJ
and keeping- the covenants, aqreements and conditions of this
Lease on its part to be performed, shall quietly have and enjoy
the Premises during- the term of this Lease without hindrance or
molestation by Lessor or by anyone claiming through or under
Lessor, subject to the terms, covenants, conditions and
exceptions herein contained, and subject also to any restric-
tions, easements or other agreements of record. This covenant is
qiven, in lieu of any implied covenant of quiet enjoyment.
JlelatioDllhip of puti..
18.11 '!'he relationship between the parties hereto
shall be that ot"" Lessor and Lessee and nothing- contained herein
shall be construed to chang-e or modify that relationship so as t;o
make Lessor and Lessee partners, joint venturers, or debtor and
creditor.
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18.12 Lessee wi~~ prompt~y and faithfu~ly comply wit~,
conform to, and obey all present and future laws, ordinances,
rules, regulations and requirements of every duly constituted
qovernmental authority or aqency havinq juriSdiction over LeSSEle
and/or the Premises or any part thereof.
"1:oppe1. ec-ti:l:1aate
18.13 Lessee aqrees to execute and. deliver to any
mort:qaqee or purchaser of the Premises, immec'liately upon request,
an nestoppel cer't:ificaten st:atinq the amount-of rent due from
Lessee hereunaer, that this Lease remains in full force and
effect without maciification, and that Lessee has no set-offs
against rent; or, if this Lease has been modified, or if Lessee
has any set-offs aqainst rent, the exact nature of the
lIIOciifications and. the precise amount of the set-offs.
JIlO ~oltU.
18 .14 Lessee represents and. warrants to Lessor that
Lessee has had no dea~inqs, neqotiations or consultations with
respect to the Premises or this transaction with any broker or
intermectiary and. that no broker or intermediary called the
Premises to Lessee's attention for lease or took any part in an:y
dealings, negotiations or consultations with respect to the
Premi.es or this Lease. In the event that any broker or
intermec1iary claims to have submitted the Premises to Lessee, tlO
have inducec1 Lessee to lease the Premises or to have taken part
in any dealinqs, negotiations or consultations with respect to
the Premises or this Lease, Lessee wi~l be responsible for and
will indemnify, defend and. save Lessor harmless from and aqains1~
any costa, fees (inclur:linq without limitation, attorney's fees) ,r
expenses, liabilities, and claims incurred or suffered. by Lessal~
u a result thereof.
xan!J&q..
18.15 Lessee accepts this Lease subject to any deeds
of trust, security interests, or lIIOrtqages that might now or
later constitute II lien on the Premises. Lessee must, on demancl,
execute any instrumenta, releases, or other documents that are
required by any martqagee for the purpose of sUbjectinq and
subordinating this Lease to the lien of any such deed of trust,
security interest, or mart:qaqe constituting a lien on the
Premiaea.
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18.16 Subject to the provisions of Article 14 hereof"
this Lease shall be binaing upon the parties hereto ana shall ~I
binctinq upon the inure to the benefit of and be enforceable by
their respective successors and assiqns. This Lease is expressly
conaitioned upon the approval of its terms and conditions by
Lessor I s mortgagee, Dauphin Deposit Bank and Trust Company, of
Barrisburq, Pennsylvania. Lessee agrees to execute a consent tC)
the Assignment of Leasee executed between Lessor and its said
mcrtqagee.
....
Waive of ClI8~
18.:1.7 Lessor shall have the right at all times, any
law, usage or custom notwithstanc:iing, to enforce strictly the
provisions of this Lease, and the failure of Lessor at any time
or times strictly to enforce any provision hereof shall not be
construed as having created a custom or waiver in any way
contrary to the specific prOVisions of this Lease or as having j.n
any way or manner moc1ified. this Lease.
aena:I.D lleuiJa9.; Lill:l.1:atiOD of LiU:I.1ity
18.18 Ca) The wo:rc:l "Lessee" as used in this Lease
shall be construed to mean tenants in all cases where there is
mare than one tenant (and in such case the liability of such
tenants shall be joint and several), and the necessary
graJlQllatical changes required to make the provisions hereof apply'
to corporation, partnerships or individuals, men or women, shall
in all cases be asswaed as though in each case fully expressed.
Each provision hereof shall extend to and shall, as the case may
require, bind and 'inure to the benefit of Lessee and its
successors and assigns, proviclecl that this Lease shall not inure
to the benefit of any assignee or successor of Lessee except upon
the express written consent of Lessor as herein proviaea..,
Cb) The term "Lessor" as used in this Lease means the
fee otomer of the Premises. In the event of the voluntary or
involuntary transfer of such ownership or right to a successor in
interest of Lessor, Lessor shall be freea and relieved of all
liability and Obligation hereunder which shall thereafter accrue
and Lessee shall look solely to such successor in interest for
the performance of' the covenants and obligations of the Lessor
hereuncier which shall thereafter accrue. The liability of Lesso:r
ana its successors in interest, unaer or with respect to this
Lease, shall be strictly limited to and enforceable only out of
its or their interest in the Premises and the tract of real
estate of which the Premises are a part, and' shall not be
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enforeeaDle out of any other assets. No mortgagee or ground.
lessor which shall suceeed. to the interest of Lessor hereund.er
(either in terms of ownership or possessory rights) shall: (1)
be liaDle for any previous act or omission of a prior Lessor, (2)
be suDject to any rental offsets or defenses against a prior
Lessor, (3) be bound by any amend.ment of this Lease !Dad.e withotLt
its written consent, or by payment by Lessee of rent in advanCEI
in excess of one (1) moJlt:h's rent, (4,) be liable for any
security not actua11y received. by it, or (5) be liable for anl'
initial construction of the improvements to be macie to the
Premis_ or for any al10wance or creciit to Lessee for rent,
construction costa or ot:her expenses. SuDject to the foregoingr,
the prov~ions hereof shall be bind.ing upon and. inure to the
benefit of the succ..sora and. assigns of Lessor.
C&p1:!ou
18.19 The captions contained. herein are for the conve,-
nienee of the parties only. They do not in any way modify,
amplify, alter or give full notice of the provisions hereof.
~~~
Paul L. ltostick
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EXHIBIT B
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LEASE ADDENDUM
THE FOLLOWING IS TO AMMEND THE PROPERTY RENTAL LEASE BETWEE~
PLK PROPERTIES AND THE PARTY OF VINCENZO MAZZAMUTO.
AS PER STATEMENT RECIEVED FROM THE LAW OFFICES OF HAROLD S.
IRWIN,III, 36 SOUTH PITT ST, CARLISLE, PA. 17013, THE PARTY,
VINCENZO MARCHIANO HAS PURCHASED, IN FULL, THE INTEREST IN THE
BUSINESS, FONTANA PIZZA, LOCATED AT 420 MARKET ST, LEMOYNE, PA.
i7043 FROM VINCENZO MAZZAMUTO.
AS OF TODAYS DATE SEPTEMBER 14, 1995, VINCENZ.o MAZZAMUTO IE
RELEASED FROM ALL RESPONDSIBILITIES OF OBLIGATION TO THE LE,ASE OF
THE ABOVE MENTION PROPERTY AT 420 MARKET'ST, LEMOYNE, PA. 17043.
AS OF TODAYS DATE, SEPTEMBER 14, 1995, VINCENZO MARCHIANC
ASSUMES FULL RESPONDSIBILITIES FOR THE OBLIGATION TO THE LEASE OF
THE ABOVE MENTIONED PROPERTY AT 420 MARKET ST., LEMOYNE, PA. 17043.
LEASE AGENT ~ ",IAN LORENZ! GENERAL MGR
OATE t7-/</. c1J:::~ _ ~ PLK PROPERTIES
LEASE RECIPIEN~~~~~~~~INCENZO MARCHIANO
DATE t>~ - /'9- CJ <; I
WITNESS (}~" l~ Idu...~AMY BUCHANAN!ADMIN ASST
DATE 9 ~ _ PLK PROPERTIES
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EXHIBIT C
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PLK PROPERTIES
418 MARKE'r ST REAR
LEKOYHE, PA. 17043
APRIL 19, 1996
HAROLD S. IRWIN, III
ATTORNEY AT LAW
36 S. PI'l"l' ST.
CARLISLE, PA. 17013
RE: LA FONTANA
DEAR HR. IRWIN,
'!'HIS LE'l'TER IS MEANT '1'0 BE A LETTER OF CONSENT FOR
GIUSEPPE RUSSO '1'0 ASSUME POSSESSION OF THE PREMISES AT 420 MARKET
ST. LEMOYlfE, PA. CUMBERLAND COUNTY, KNOWN AS LA FONTANA. AS I;TATED
IN YOUR LETTER, HR. VINCNZO MARCHIANO IS '1'0 REMAIN ON THE Lli:ASE.
ALL OBLIGATION '1'0 THE CONDITIONS OF THE LEASE WILL
BE THE RESPONDSIBILI'l'Y OF MR GIUSEPPE RUSSO, WITH MR. VIIfCENZO
HARCHIANO REMAINING RESPONDSIBLE FOR THE LEASE OBLIGATION.
WE ACKNOWLEDGE YOUR WISH TO EXERCISE YOUR OP'1'J[ON '1'0
RENEW THE LEASE.
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'!'HIS AGREEHEHT WILL TAKE EPFE UPON THE SIGNING OF
THIS AGREEMENT BY MR. HARCHIANO, MR, GIUS PE, AND MYSELF.
ZO MARCHIANO
GIUSEPPE RUSSO
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IAN I.OREHZ
GD MRG./PLK PROPEEt'1'IES
WITNESS ( )
THANK YOU,
BRIAN LORElrZ
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VE.BJEKAfLQN
Subject to the penaltks of 18 Pa,C.S Section 4904 (relating tl' unsworn falsification
to authorities), I, Paul I.,. Kosti<:k, hereby declare that the facts set forth in the foregoing
COMPLAINT are true and correct to the best ofll1v knowledge. intlmnation and belief
q~~V_6_~,_~-~
Paul L. Kostick
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PAULL. KOSTICK TIA
PLKPROPERTIES,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v,
: Civil Action - Law
: No. 2000-754
VINCENZO MARCHIANO,
Defendant
PRAECIPE TO REINSTATE COMPLAINT
TO: Prothonotary
Please reinstate the Complaint, a copy of which is attached, in the above action,
rard J, Pisarc' Esq,
Attorney for Plaintiff
Atty I.D. No, 39181
20 Erford Road, Suite 305
Lemoyne, PA 17043
(717) 975-0600
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SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 2000-00754 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
KOSTICK PAUL L ET AL
VS
MARCHIANO VINCENZO
R. Thomas Kline
, Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT
, to wit:
MARCHIANO VINCENZO
but was unable to locate Him
in his bailiwick. He therefore
deputized the sheriff of FRANKLIN
County, Pennsylvania, to
serve the within COMPLAINT & NOTICE
On March
29th , 2000 , this office was in receipt of the
attached return from FRANKLIN
Sheriff's Costs:
Docketing
Out of County
Surcharge
Dep. Franklin Co
18.00
9.00
10.00
36.64
.00
73.64
03/29/2000
LAWS, STARUCH
SA~s/, /h:: "';; ,'7
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R.' Thomas Kline
Sheriff of Cumberland County
& PISARCIK
Sworn and subscribed to before me
this t, ~ day of af" 'fl
.207.nJ A.D.
C-k'fM- {2 ~ <Rp15
I Prothonotary
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SHERIFF'S RETURN - REGULAR
CASE NO: 2000-00754 T
COMMONWEA,:YTH,Q~, !2,ENNSYL VANIA:
._JiJ!(fl:v;~F!J';'RMKLIN".,
KOSTICK PAUL L
VS
MARCHIANO VINCENZO
THEODORE L KONCSOL , Deputy Sheriff of FRANKLIN
county, Pensylvania, who being duly sworn according to law,
says, the within COMPLAINT was served upon
MARCHIANO VINCENZO the
DEFENDANT , at 1248:00 Hour, on the 14th day of March ,2000
at BROTHERS PIZZA 5210 MOLLY PITCHER HIGHWAY
CHAMBERSBURG, PA 17201 by handing to
SAME SAME
a true and attested copy of COMPLAINT
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docb~ting
ServJ.ce
Affidavit
Surcharge
Mileage
9.00
9.00
4.00
10.00
4.64
.:Sb.bLf
So Answers:
By
ueput:y ::;herJ.ff
03/17/2000
CUMBERLAND COUNTY SHERIFF
NOTARIAL SEAL
PATRICIA A, STRINE, Nolary Public
OtIambersburg, Franklin County
M Comml~on Ex Ire. Noy, 4. 2000
IIllIIUII,~I"
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\
'In The Cou.rt of Common Pleas ofCu.mberland County, Pennsylvania
Paul L. Kost~ck tla PLK Properties
V. . VS.
lncenzo Marchlano
No. 2000-754 Civil
,Now, MAr R
, 20-D1.L, I, SHERIFF OF CUMBERLAND COUNTY, PA, do
hereby deputize the Sheriff of Franklin
County to execute this Writ, this
deputation being made at the request and risk of the Plaintiff.
, '~~~~~~
. Sheriff of Cumberland County, P A
Affidavit of Service
Now,
,20_, at
0' clock
M. served the
within
upon
at
by handing to
a
copy of the original
and made known to
the contents thereof.
So answers,
Sheriff of
County, PA
Sworn and subscribed before
me this_ day of ,20_
COSTS
SERVICE
MILEAGE
AFFIDAVIT
$
$
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PAUL L. KOSTICK, tJa
PLK PROPERTIES
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
v.
Docket No. 2000-754 Civil Term
VINCENZO MARCHIANO
Defendant
NOTICE TO DEFEND AND CLAIM RIGHTS
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set
forth in the following pages, you must take action within twenty (20) days after this
Complaint and Notice are served, by entering a written appearance personally or by
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 fail to do so the case may proceed without
you and a judgment may be entered against you by the Court without further notice for
any money claimed in the Complaint or for any other claim or relief requested by the
Plaintiff. You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE.
IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR
TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU
CAN GET LEGAL HELP,
Cumberland County Lawyers Referral Service
2 Liberty Ave,
Carlisle, PA 17013
(717) 249-3166
TO: PAUL L. KOSTIC tJa PLK PROPERTIES:
CIO GERALD J. PISARCIK, ESQUIRE
You ARE HEREBY NOTIFIED To FILE A WRITTEN RESPONSE TO THE ENCLOSED
COMPLAINT WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE
ENTERED AGAINST YOU.
C~-12I-
PETER J. Russo
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PAUL L. KOSTRICK, tla
PLK PROPERTIES,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: Docket No. 2000-754 Civil Term
VINCENZO MARCHIANO,
Defendant
DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT. NEW MATTER AND
COUNTER CLAIM
AND NOW, COMES, the Defendant, Vincenzo Marchiano by and through his
counsel, Peter J. Russo, Esquire, and avers the following:
1. Admitted.
2. Admitted in part and denied in part. It is admitted that Vincenzo Marchiano is an
adult individual and former owner/operator of La Fontana, Inc" a Pennsylvania
Corporation. By way of further response it must be noted that in addition to Vincenzo
Marchiano, Giuseppe Russo was an individual owner and operator of La Fontana, Inc,
who was not named in this suit.
3. Admitted.
4. It is admitted and denied. It is admitted that on or about November 19, 1993, a
lease was entered into for the property located at 420 Market Street, Lemoyne,
Pennsylvania, By way of further response, the aforementioned to lease is a document
which speaks for itself and any interpretational gloss applied thereon by the Plaintiffs is
strictly denied,
5. Admitted and denied. It is admitted that on or about September 14, 1995, there
was an assignment of the lease. By way of further response, the assignment of the
lease is a document which speaks for itself and any interpretational gloss applied
thereon by the Plaintiffs is strictly denied,
6. Admitted and denied. It is admitted that on or about April 19, 1996, a lease
assignment was executed. By way of further response, the lease assignment is a
document which speaks for itself and any interpretational gloss applied thereon by the
Plaintiffs is strictly denied.
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7. Admitted and denied. It is admitted that the lease had various terms and as the
lease is a document the language therein speaks and any interpretational gloss applied
thereon by the Plaintiffs is strictly denied,
8. Denied. It is denied that there is an outstanding balance owing to the Plaintiff in
this matter as Plaintiff has sued and obtained a judgment against Giuseppe Russo, one
of the other obligators under the alleged lease agreement. By way of further response,
Plaintiff has already been paid in various forms including but not limited to the retention
of a security deposit, the retention of a sewer deposit, the retention of various weapons,
and the retention of a motor vehicle,
9, Denied, It is denied that there is an outstanding balance owing to the Plaintiff in
this matter as Plaintiff has sued and obtained a judgment against Giuseppe Russo, one
of the other obligators under the alleged lease agreement. By way of further response,
Plaintiff has already been paid in various forms including but not limited to the retention
of a security deposit, the retention of a sewer deposit, the retention of various weapons,
and the retention of a motor vehicle,
10, Admitted with explanation. It is admitted that Mr. Marchiano has refused and
continues to refuse to pay Plaintiff the outstanding amount allegedly owed to Plaintiff.
As discussed herein, Plaintiff has already been paid on various occasions against said
obligation and strict proof is demanded at the time of trial that Plaintiff is owed the
amount he claims.
11. Denied. It is denied that Mr. Marchiano has failed to pay an outstanding
judgment owed to Plaintiff under the terms of the agreement as Plaintiff has received
various payments which constitute sufficient funds to cover any obligation that may be
outstanding. By way of further response prior to Mr. Marchiano's breach of his contract,
Plaintiff breached various provisions of the contract including but not limited to; the
failure to provide Mr. Marchiano notice when lease payments were not being paid,
12. Denied. Paragraph 12 contains provisions of a document which speaks for itself
and any interpretational gloss applied thereon by the Plaintiff is denied.
13. Denied. Paragraph 13 contains conclusions of law to which no response
required. In the event that any portion of paragraph 13 is deemed to be factual, the
lease, as a written document speaks for itself and any interpretational gloss applied
thereon by Plaintiff is strictly denied.
WHEREFORE, Defendant request this Honorable Court to enter judgment in
favor of the Defendant and against Plaintiff in the amount of all expenses and costs
incurred by Defendant in defense of this matter.
.'"...;
COUNT II
14. Denied. As the Rules of Pennsylvania Civil Procedure do not require response
to this averment. By way of further response, Defendant reasserts his answers to
Plaintiffs' paragraphs 1 through 13 as if set forth fully herein.
15. Denied. As the Rules of Pennsylvania Civil Procedure prevent the introduction
of any evidence regarding settlement negotiations, Defendant denies any allegations
contained in paragraph 15.
16. Denied. As the Rules of Pennsylvania Civil Procedure prevent the introduction of
any evidence regarding settlement negotiations, Defendant denies any allegations
contained in paragraph 16.
17. Denied, As the Rules of Pennsylvania Civil Procedure prevent the introduction
of any evidence regarding settlement negotiations, Defendant denies any allegations
contained in paragraph 17.
18, Denied. As the Rules of Pennsylvania Civil Procedure prevent the introduction
of any evidence regarding settlement negotiations, Defendant denies any allegations
contained in paragraph 18.
19, Denied. As the Rules of Pennsylvania Civil Procedure prevent the introduction
of any evidence regarding settlement negotiations, Defendant denies any allegations
contained in paragraph 19.
20, Denied. As the Rules of Pennsylvania Civil Procedure prevent the introduction
of any evidence regarding settlement negotiations, Defendant denies any allegations
contained in paragraph 20.
WHEREFORE, Defendant requests this Honorable Court to enter a judgment in
favor of Defendant and against Plaintiff in an amount equal to the cost of defense in this
matter.
NEW MATTER
21. At the initiation of said lease, the parties submitted a deposit to Plaintiff in the
amount of $1,150.00, as well as various sums as a sewer deposit.
22. Article 12, paragraph 12.01, subsection B, provided for a five (5) day notice, in
the event of a default.
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23, On various occasions Plaintiff failed to provide the appropriate and required
five (5) day notice to Mr. Marchiano.
24, On or about July 12, 1999, Plaintiff filed suit against Giuseppe Russo for same
facts and allegations contained in this Complaint.
25. On or about August 9, 1999, Plaintiff obtained a judgment in the amount of
$3,341.09 against Giuseppe Russo based on the same facts and circumstances pled in
this Complaint.
26. On or about August 9, 1999, Plaintiff received title to a motor vehicle and
possession of several weapons.
27. It is believed, therefore, averred, that Plaintiff retained said items and reduced
same to cash,
28. Plaintiff has failed to set a claim upon which release may be granted.
29, Plaintiff has failed to join an indispensable party.
30. Plaintiff has failed to mitigate his damages, if any.
31. Plaintiff may be barred in whole or in part by the applicable Statute of Limitations.
32, Plaintiff may be barred in whole or in part by the principle of res judicata.
33. Plaintiffs claim may be barred by the estoppel, waiver and latches.
34.. Plaintiffs claim may be barred by the Principles of Accord and Satisfaction.
35. Plaintiffs claim may be barred by the doctrine of payment.
36. Plaintiff voluntarily assumed the risk of the facts set forth in this Complaint and
accordingly his claim is barred.
37. Plaintiffs claim may be barred and limited by the doctrines of comparative
negligence and/or assumption of the risk.
38. No conduct of the Defendant or agent of the answering Defendant resulted in or
is the proximate cause of any injury or damage sustained by the Plaintiff.
39. Any injuries andlor damages claimed by the Plaintiff, if proven, were caused by
persons other than answering Defendant and not within the control of answering
Defendant.
-
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40. At all material times hereto answering Defendant acted reasonably, appropriately
and caused no injuries or damage to Plaintiff.
41. Any harm suffered by the Plaintiff arose out of his own non-performance of the
essential obligations in the subject lease.
COUNTER CLAIM
COUNT I
RETURN OF DEPOSITS
42. Defendant realleges paragraphs 1 through 41 as though set forth herein in their
entirety .
43, Upon termination of the subject lease, Plaintiff failed to return the required
security and sewer deposits to the Defendant.
45. In excess of thirty (30) days have passed since the termination of said lease and
Plaintiff has continued to refuse to remit or return the deposits.
46. Defendant is entitled return of said deposits,
WHEREFORE, Defendant demands a judgment in favor of Defendant in the
amount equal to the amount of the deposits and interest and delay costs thereon.
Respectfully submitted,
~C-1.2 ~
Peter J. Russo
61 West Louther Street
Carlisle, PA 17013
(717) 249-2721
Dated:
VERIFICATION
, I -, . -' I 0 ." -~l';"_:
I, Vincenzo Marchiano. verify that the statements made in the forgoing document
are true and correct. I understand that false statements herein are made subject to the
penalties of 18 Pa. C. S. 9 4904 relating to unsworn falsification to authorities,
Dated:
'-l J20 /7..av-D
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PAUL L. KOSTRICK, t1a
PLK PROPERTIES,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: Docket No. 2000-754 Civil Term
VINCENZO MARCHIANO,
Defendant
CERTIFICATE OF SERVICE
I, Peter J. Russo, hereby certify that I am on this day serving a copy of the
foregoing document upon the person(s) and in the matter indicated below:
Service by First-Class Mail, Postage Prepaid, and addressed as follows:
Gerald J. Pisarcik, Esquire
Laws, Staruch & Pisarcik
20 Erford Road, Suite 305
Lemoyne, PA 17043
Date: ~3,laooo
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PAUL L. KOSTICK TI A
PLKPROPERTffiS,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: No. 2000-754 Civil Term
VINCENZO MARCHIANO,
Defendant
PLAINTIFF'S ANSWER TO
NEW MATTER AND COUNTERCLAIM
21. Admitted in part, denied in part. It is admitted that, at the inception of the Lease,
$1,150.00 was paid by the Lessee Francesco Failla toward the last monthly rental instalhnent. It is
denied that any sewer deposits were ever paid. By way offurther response, it is averred that amounts
were paid toward the sewer tapping fee, which amounts were to be repaid in the event the lessee
terminated the lease in accordance with its terms,
22, Denied. Paragraph 22 refers to a written document which speaks for itself and
any characterization thereof by Defendant is strictly denied.
23. Denied. Paragraph 23 refers to a written document which speaks for itself and
any characterization thereofby Defendant is strictly denied. By way offurther response, it is averred
that the appropriate notice was given to the Lessee as required by the terms of the lease, said Lessee
being Giusseppe Russo.
24. Admitted in part, denied in part, It is admitted that Plaintiff filed suit against
Giuseppe Russo ~t District Justice Charles A. Clement, Jr.' s office at Docket No. L T -0000290-99.
It is denied that the said suit pled the exact same facts and circumstances pled in this Complaint.
25. Admitted in part, denied in part, It is admitted that a judgment was obtained
against Giuseppe Russo for $3,341.09. All other averments contained in paragraph 24 are denied,
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By way of further response it is averred that the judgment obtained against Giuseppe Russo was only
for rent due and outstanding for the months ofJune (partial), July and August of 1999, including
interest up to the date of filing, and no amount of the judgment was ever collected from Giuseppe
Russo.
26, Denied. It is specifically denied that Plaintiff received title to a motor vehicle
and/or possession of any weapons.
27. Denied. Plaintiff s response to paragraph 26 is incorporated herein as if set forth
at length,
28. The averments of paragraph 28 are conclusions oflaw to which no response is
required.
29, The averments of paragraph 29 are conclusions oflaw to which no response is
required,
30. The averments of paragraph 30 are conclusions oflaw to which no response is
required.
31. The averments of paragraph 31 are conclusions of law to which no response is
required.
32. The averments of paragraph 32 are conclusions oflaw to which no response is
required.
33. The averments of paragraph 33 are conclusions oflaw to which no response is
required,
34, The averments of paragraph 34 are conclusions oflaw to which no response is
required,
~~
35. The averments of paragraph 35 are conclusions oflaw to which no response is
required.
36. The averments of paragraph 36 are conclusions oflaw to which no response is
required.
37. The averments of paragraph 37 are conclusions oflaw to which no response is
required.
38. Denied. By way offurtherresponse, it is averred that, by signing the agreement
dated April 19, 1996, which required "Mr. Vincenzo Marchiano remaining responsible for the lease
obligation", Defendant assumed the risk of default by Giuseppe Russo under the lease.
3 9. Denied. Plaintiff's response to paragraph 38 is incorporated herein as if set forth
at length.
40. Denied. Plaintiff's response to paragraph 38 is incorporated herein as if set forth
at length.
41. Denied. By way offurther explanation, it is averred that at all time relevant hereto
Plaintiff acted reasonably, appropriately and in accordance with the terms of the lease.
Counterclaim
42. Plaintiff's responses to paragraphs 21 through 41 are incorporated herein as if set
forth at length.
43. Admitted in part, denied in part. It is admitted that no sums were paid to
Defendant by Plaintiff. It is denied that any sums should have been returned and/or paid to
Defendant.
45. (Misnumbered in Defendant's Counterclaim).. Admitted in part, denied in part.
It is admitted that more than thirty (30) days have passed since the leased premises were abandoned
.b....ittt
by Giussepe Russo. All other averments are denied. Plaintiff's response to paragraph 43 is
incorporated herein as if set forth at length.
46. Denied Defendant is not entitled to the return of any sums allegedly deposited
with Plaintiff.
WHEREFORE, Plaintiff requests judgment in his favor and against Defendant, as
originally requested in his Complaint.
Respectfully submitted,
20 Erford Road, Suite 305
Lemoyne, PA 17043
(717) 975-0600
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PAUL L. KOSTICK T/A
PLKPROPERTIES,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: No. 2000-754 Civil Term
VINCENZO MARCHIANO,
Defendant
CERTIFICATE OF SERVICE
I, Gerard 1. Pisarcik, Esquire, hereby certifY that on the 10Ih day of May, 2000,
I served a copy ofPLAlNTIFF'S ANSWER TO NEW MATTER AND COUNTERCLAIM by U.S.
first class mail postage prepaid upon the person indicated below:
Peter 1. Russo, Esq.
61 West Louther St.
Carlisle, P A 17013
Attorney for Defendant
F:\OFFICE\WPWIN\STIEL Y\KOSTICK\marchiano.ans
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VERIFICATION
Subject to the penalties of18 Pa.C.S. Section 4904 (relating to unsworn falsification
to authorities), I, Paul L. Kostick, hereby declare that the facts set forth in the foregoing ANSWER
TO NEW MATTER AND COUNTERCLAIM are true and correct to the best of my knowledge,
information and belief.
\?~~~d-
Paul L. Kostick
F:\OFFICE\WPWlN\STIEL Y\KOSTICK\marchiano.ans
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PAUL L. KOSTICK T/A
PLK PROPERTIES,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
NO. 754 CIVIL 2000
VINCENZO MARCHIANO,
CIVIL ACTION - LAW
PETITION FOR APPOINTMENT OF ARBITRATORS
TO THE HONORABLE, THE JUDGES OF SAID COURT:
Gerard J. Pisarcik, counsel for the Plaintiff in the above action, respectfully
represents that:
1. The above-captioned action is at issue.
2. The claim of the Plaintiff in the action is $7,837.14 (Count I) and $3,500 (Count
II). The counterclaim of the defendant in the action is $ refund of deoosit (not determined).
The following attorneys are interested in the case as counselor are otherwise
disqualified to sit as arbitrators:
Gerard J. Pisarcik, Esq.
20 Erford Road, Ste 305
Lemoyne, PA 17043
Peter J. Russo, Esq.
61 W. Louther S1.
Carlisle, PA 17013
WHEREFORE, your petitioner prays your Honorable Court to appoint three (3)
arbitrators to whom the case shall be submitted.
AND NOW,
~~
ORDER OF COURT
~ 6 ,2000,in consideration of the foregoing petition, ,
, Esq. ,,4/1f.1'it//j ~./', Esq. and ~ A'-< j,
, Esq., are appointed arbitrators in the above-captioned action as prayed for.
By the Court,
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CERTIFICATE OF SERVICE
I, Gerard J. Pisarcik, Esquire, hereby certifY that a true and correct copy of the above
Petition for Appointment of Arbitrators was served by mailing by U.S. First Class Mail, postage
prepaid, on this cJ/{r/ day of 2000, to the following:
Peter 1. Russo, Esq.
61 W. Louther St.
Carlisle, PA 17013
Attorney for Defendant
ard 1. Pisarcik, Esquire
20 Erford Road, Suite 305
Lemoyne, P A 17043
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PAUL L. KOSTICK, tla
PLK PROPERTIES,
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
: NO.754 CIVIL 2000
: CIVIL ACTION - LAW
VINCENZO MARCHIANO
IN RE: ARBITRATION
ORDER OF COURT
AND NOW, June 19, 2000, the Court having been informed that the
parties have reached a settlement, the Board of Arbitrators previously appointed
is vacated, and the chairman, Charles H. Stone, shall be paid the sum of $50.00.
By the Court,
"
P.J.
Charles H. Stone, Esquire
Chairman
Andrew Sheely, Esquire
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James Reid, Jr., Esquire
Court Administrator
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PLK PROPERTIES,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
No. 754 Civil 2000
VINCENZO MARCHIANO,
Defendant
Civil Action - Law
Praecipe to Settle and Discontinue
To: Prothonotary
Please mark the above suit settled and discontinued with prejudice as to both
the Complaint and Counterclaim.
~ ~ -1<:~I' ".
Peter J. Russo, Esq.
Attorney for Defendant
61 W. Louther St.
Carlisle, PA 17013
(717) 249-2721
aws, Staruch & Pisarcik
Attorneys for Plaintiff
20 Erford Road, Suite 305
Lemoyne, PA 17043
(717) 975-0600
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