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HomeMy WebLinkAbout00-04875 ,:,- ..,.--,. . -. - ~ . '-'- ~- '1'< ,~:-_ . ~ " , . . l 't ,J , , . , ' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DD&K, INC., Plaintiff vs ) ) ) No. 00-4875 ) ) CIVIL TERM ) ) ) NOTICE TO PLEAD I R.S. MOWERY & SONS, INC. and RSM ASSOCIATES, L.P. Defendants 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 Answer, New Matter and Counterclaim and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defense 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 under New Matter and ~ the Counterclaim or for any other claim or relief requested by the Defendant. 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 HA VB A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 Telephone (717) 249-3166 Date: NoV. 15', J. (JOt) By: . Smith, Esquire, ill #19520 y for Plaintiff Y' "'"r"" , , - ~'--. ,-^...,; ,'-', """"- ",-~, --'," -'," - - ",,,-,,, ~_"_ ';0,. ~"'--'_~._d"'_' ..-~, ,.,~_'d'" '",,- ':, -- ,-"".o.:'~",,^,k-,'~~Ii8.;4io,.j, __." . r ,. , J 1 , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DD&K, INC., Plaintiff vs ) ) ) ) ) ) ) ) No. 00-4875 CIVIL TERM R.S. MOWERY & SONS, INC. and RSM ASSOCIATES, L.P. Defendants AMENDED COMPLAINT AND NOW, comes DD&K, Inc., by and through their attorneys, Gingrich, Smith, Klingensmith & Dolan and files this Amended Complaint alleging as follows: 1. The Plaintiff, DD&K, Inc., is a Pennsylvania Corporation with its principal place of business located at 1898 North Market Street, Elizabethtown, Pennsylvania 17022 (hereinafter "DD&K"). 2. One Defendant is R.S. Mowery & Sons, Inc., a Pennsylvania Corporation with its principal place of business at 625 Appleton Street, Carlisle, Pennsylvania 17013 (hereinafter "R.S. Mower & Sons"). 3. Another Defendant is RSM Associates, L.P., (formerly Ritner Park Associates), a Pennsylvania Limited Partnership with its principal place of business at 625 Hamilton Street, Carlisle, Pennsylvania 17013 (hereinafter ''RSM Associates"). 4. This action is properly filed in the Cumberland County Court of Common Pleas because the property at issue in the suit is located in Cumberland County, Defendants' principal place of business is in Cumberland County, and related litigation has been filed in the Court of Common Pleas of Cumberland County, Carlisle, Pennsylvania at Docket No. 98-5484 (R.S. Mowery "~^",' ''''.' -"~" '""""""'k.^',~'""''','"-''''__-' 0 '-"'~,."-.;'- "'<'" -L-:,.",-""""--,, ';',~".;;,:",--;-',,'';;.l11''~'X~''~~-''','-<',:;'' -;01).:";,,,_ "~',;G7_"'~,~' h+ "" -" ~ .' -'A , > & Sons, et at. v. H. Edward Black). 5. On March 25,1997, the three (3) principals ofDD&K, Inc., namely, David G. Heisey, RobertH. Kauffinan and Miriam I. Kauffinan (one (1) principal), and David R. Strong entered into a joint venture development agreement for the purpose of acquiring and developing a certain property for a retirement condominium community with said property being known and designated as lot #16 in the plan of subdivision of the Bent Creek Business Center containing approximately 28.62 acres ofland and being situate in Silver Spring Township, Cumberland County, Pennsylvania. The property is further described in and is the subject matter of an agreement of sale between RSM Associates and DD&K dated July 7, 1997. A copy of said agreement of sale is attached hereto and marked exhibit "A." 6. The said agreement of sale was amended on or about April 15, 1998 (exhibit "B"), the deed of conveyance was executed March 23, 1998 and recorded on April 15, 1998 in and for the office of recording of Cumberland County, Carlisle, Pennsylvania which date, April 15, 1998, is the day the agreement closed and DD&K purchased the described property. 7. Said agreement and to the extent modified by amendment, provides for "Representations, Warranties and Covenants of seller." These representations, warranties and covenants are specifically outlined in paragraphs 11 a-land 7 a-e (July 7, 1997 agreement exhibit "A') which paragraphs are incorporated herein by reference. BREACH OF CONTRACT 8. Specifically, R.S. Mowery & Sons and RSM Associates have failed to satisfy the representations, warranties and covenants in the following particulars: a. Paragraph II(c) (July 7,1997 agreement exhibit "A") provides: ,l ..^ '." . - , ~""'" ,--t-,_;,"__'. F'"C,','- ~_~C'j'~'-<_<_" 0\ _,.. - ~'i __ ,- -"C:.. '--.~ '1 I, The property shall, as of Settlement, be in full compliance with all subdivision and land use development plans and all laws, ordinances, rules, regulations, orders and decrees relating thereto. In addition, Sellers shall be in compliance with same as to all or any other parts of the Bent Creek Business Center to the extent any such non- compliance by Seller would materially and adversely affect the Property and/or the intended use of the Property; b. Paragraph l1(b)(July 7,1997 agreement exhibit "An) provides: The Property is, or will on or before November 30, 1997, be served by water and sewer, which lines shall then extend to a border of the Property at 110 cost to Purchaser. To Seller's knowledge, even though there is no "reservation" of ED Us, there should now be sufficient EDUs available for the intended use of the Property. Seller shall use reasonable efforts to cause the applicable utilities companies to extend telephone and electrical lines to the Property on or before such date, at no cost to Purchaser, and shall request, at no cost to Seller or Purchaser, that cable television lines be extended to the Property by such date; c. Paragraph 1 1 (b) was amended by First Amendment to DD&K, Inc. Agreement of Sale referenced above and dated April 15, 1998 "by deleting the reference to November 30, 1997 and replacing it with Augnst 15, 1998". d. Sewer service was not provided by the agreed date of August 15, 1998. While , a sewer line had in fact been installed by Defendant the Township would not issue occupancy permits until January 1999, well beyond the July 1998 construction completion date of at least four (4) condominium units built by Plaintiff, because Defendants' failed, to the satisfaction of the Township, to timely resolve issues related to an easement area through which the sewer line ran. As a result sewer service was not provided to Plaintiff by Defendant as agreed. e. The Pennsylvania Historical and Museum Commission is one of the agencies needed to approve the subdivision plan submitted by the Defendants. The Pennsylvania Historical and Museum Commission considers such items such as whether or not potential, as for example, Indian artifacts, are on the land to be disturbed. It is belil:;ved and therefore averred the original ~-,~ , '" c -"' '.~ ".- j.-, J-,,'-,- >~<;G--'_'\__" --"k_~'<;': ._ _ ,: ". I;;;'~-:~ -':J~.;:,'Z;..-, ' I I I. I subdivision plan as designed by H. Edward Black & Associates, P.C., based upon information provided by the Defendants herein, provided for the sewer line to run along the Conodoguinet Creek on the East side of the peninsula/development (Bent Creek Business Center, the entire tract to be developed of which DD&K's land was one lot, hereinafter "development") which design was to carry sewer from the North end of the Development to what is commonly referred to as the Snyder property (the adjoining property) at the South end of the development. At the Snyder property, the sewer line was to be constructed through an existing easement and connect to the existing line that services the Snyder property. It is believed and therefore averred, in reviewing the development subdivision plan as submitted, the Pennsylvania Historical and Museum Commission requested the sewer line as proposed not run so close to the creek and it be moved further away from the creek because Indian artifacts may potentially be located in the area initially proposed for construction of the sewer line. This recommendation was accepted by the Defendants and sewer was ultimately constructed at the revised location. f. The revised sewer line location, when constructed to connect up to the Snyder property, was not constructed in the existing easement, but rather, was constructed right across the Snyder property to connect with the existing sewer line without the permission of the owners of the Snyder property. g. The fact the sewer line was not constructed in the designated easement on the Snyder property was not discovered by DD&K until a representative ofDD&K on or about June/July 1998 went to the Silver Spring Township Office indicating DD&K would soon be calling for an occupancy inspection of the Bent Creek Crossing condominiums. Four (4) units at that time were just about completed and DD&K was now actively marketing the properties for sale. A township j, - '-'--~ - - , '-- : rl -" -'-'~. -~ '-,~--;. '- '-", Yo ".',--,,0' 'i_,,,;i:,,.,$'''':';'''_''7_';~_~<' _'"'__" "';"'.'_. '-~'-;--; 1 I ,. representative indicated occupancy pennits would not issue until the off-site sewer issue, as set forth above, was resolved. h. It is believed and therefore averred it was not until January 1999 that final occupancy permits issued allowing the units as constructed to be sold. I. The models as constructed by DD&K, Inc. were opened in the summer of 1998 for people to visit, show and purchase. However, final occupancy pennits were not available for approximately six (6) months after construction completion and the units could not be sold until the occupancy permits issued. J. DD&K could not offer to prospective buyers when occupancy pennits would be available. Sales were delayed and prospective buyers expressed concern over sewer. 9. Defendants finally entered an agreement with representatives from the Snyder property and occupancy pennits did issue. 10. It is further believed and therefore averred Defendants engaged the services ofH. Edward Black & Associates (hereinafter "Black") to perform various sketch planning services and site analysis to assist Defendants in determining whether the development of the Bent Creek Business Center was feasible. 11. Defendants decided to move forward with development and hired Black to obtain all necessary federal, state and local approvals inherent in the proj ect. 12. DD&K also hired Black to prepare and complete to approval of all required authorities a land development plan for their lot purchased from RSM Associates for the development of a condominium community. 13. DD&K's land development plan could not be approved until Defendants subdivision '-'._u,,_o - " --,., -, -",0_ ., , '''j;""",.' ~"-'---- '.."J:<> _" ,_~. ., ,'-' -_:_,~- _');-"""); ,~_, '. 't~ I I " plan was in order and approved by all authorities required to approve such plan. 14. Plaintiffbelieves and hereby avers that delays and its inability to obtain approval for its development plan and subsequently to obtain occupancy pennits for its units was caused by the breaches of contract of the Defendant in the following particulars: a. Defendant failed to provide information requested by Black in a timely manner. b. Defendant failed to fully cooperate with Black in the processing of both plans. c. Defendant failed to adequately and timely review the work product of Black during the course of the preparation of plans. d. Such other and further breaches of contract, acts of commission and acts of omission of the Defendant which may be determined during the course of discovery all of which Plaintiff reserves the right to add as may be appropriate. 15. It is believed and therefore averred that Defendant's failures and breaches of contract as outlined above were the direct, proximate and legal cause for delay and resulted in losses being sustained by the Plaintiff as hereinafter set forth. 16. The elements of Plaintiffs damages caused by Defendant arise out of claims made against the Plaintiff coming from three separate sources, as well as losses sustained by the Corporation itself. They can be outlined and described as follows: a. Claim of Robert H. Kauffman and Miriam I. Kauffman. (Hereinafter "Kauffinans"). Kauffinans are share holders in Plaintiff and also investors in the development of the retirement condominium Community (the "Project"). Based upon the above referenced Exhibit "B",. Kauffmans were to and did invest in the project by paying in to the corporation "seed" money " , . -~? ~," ,,- " ,,' 'o-_vc, -- ,,-'cj ., ;,""..-<. - ,,~----" '-'.,. "" -",-;,,_: --"-' ->_G<,'~ __.;;- """",-"", '. - I I l., on July 1, 1997 in the amount of $50,000.00 and subsequently at the time of closing on April 15, 1998 and additional sum of $450,000.00 was invested. Kauffinans have lost investment earnings on their invested moneys as a result of the delays in the project caused by Defendants in a sum of money in excess of$72,OOO.OO. These sums are due the Kauffmans by the Plaintiff by virtue of the said Exhibit "B" and the Note and Mortgage executed by the Plaintiff to the Kauffmans at the time of closing. b. Claim of David G. Heisey, Inc. (Hereinafter "Heisey") This corporation is the builder for the project and responsible for the erection of the condominium units within the Project. With the authority of the Plaintiff given to Heisey as a result of reliance on the Agreement of the Plaintiff and Defendant and representations made by Defendant to Plaintiff, Heisey took various steps to proceed with construction in April/May 1997. Due to the breaches of contract by the i; f' Defendant outlined above, it was not possible for an extended period oftime through January 1999 to obtain Occupancy Permits for the units which Heisey had constructed meaning that they could not be sold which further meant that construction costs had to be carried by Heisey and he could not be paid by Plaintiff. Heisey has made claim against the Plaintiff for a sum of money, his losses, in excess of$495,000.00. c. Claim of David R. Strong (hereinafter "Strong"). Strong's function in the project, in addition to being a shareholder in the Plaintiff, was as the on site marketer and manager. Based upon the Agreement of the Plaintiff and Defendant and the representations made by Defendant throughout 1997 the Plaintiff instructed Strong to be prepared to proceed in that capacity at or about September 1, 1997. Knowing that instruction would be forthcoming, Strong removed himself from his other income producing projects and entered into and concentrated his efforts on behalf of the - - ~ -,.-. - -.~--'" ~ '_0 . _'",'"~~'"L" .'. r-'"- ~ _ .,~,~ ", "--'-,^,"~':'T'_ , , Plaintiff. Because the Project was delayed, which resulted solely from the breaches of Contract by the Defendant, it was not able to proceed as planned and Strong thereby incurred significant losses and he has made demand for reimbursement of same from Plaintiff. Strong's demands exceed the sum of$155,000.00. d. Plaintiff, the corporate entity which owned the project and was developing it, sustained losses other than above which would not have been incurred but for the breaches of contract by the Defendant. These sums include excess development fees such as legal and accounting; lost marketing expenses and advertising costs; office rental; and excess development interest all of which exceeds $150,750.00. WHEREFORE, Plaintiffs request judgment in its favor and against Defendants with respect to this Amended Complaint in the amount of $872,750.00, plus interest, costs and whatever other reliefthis Honorable Court deems appropriate. Respectfully submitted, GINGRICH, SMITH, KLINGENSMITH DOLAN Date: I/()v. IS", UP; By: . th, Esquire, Attorn for Plaintiff 222 South Market Street, Suite 201 Elizabethtown, P A 17022 (717) 367-1370 ,- , k,_ _," _~_ -~._- or"__ __,. __~ ."____".,,~_ VERIFICATION We David G. Heisey and David R. Strong, President and Secretary respectively ofDD & K, Inc., the Plaintiff verifY that the statements made in this Complaint are true and correct. We understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 94904, relating to unsworn falsification to authorities. IJ-PR~ David R. Strong, Secretary -' ufls)o/ " ,"'," ",,,- ~_"-~_-,~c_< ". ""~,"_ _'or._ o "d'-' ,,-- - ...;1. ____,"~ _J_~>'-,'"c-4_ _"_,~ "_,,,,, '"'' ,., ~- -,-"-, --~ .-.-,,"'" IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CML ACTION - LAW vs ) ) ) ) ) ) ) ) No. 00-4875 DD&K, INC., Plaintiff CIVIL TERM R.S. MOWERY & SONS, INC. and RSM ASSOCIATES, L.P. Defendants CERTIFICATE OF SERVICE I, John M. Smith, Esquire of Gingrich, Smith, Klingensmith & Dolan hereby certify that I du1y served a copy of the foregoing Amended Complaint to the following person by United States first class mail, addressed as follows: James W. Kutz, Esquire McNeese, Wallace & Nurick 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Respectfully submitted, GINGRICH, SMITH, KLINGENSMITH & DOLAN Date: !'ItJlI. 15", J.ttltJ By: Jo . Smith, Esquire, ill #19520 A omey for Plaintiff 222 South Market Street, Suite 201 Elizabethtown, P A 17022 (717) 367-1370 ,< ~ ~ "~ =- I l .,' . . , . . K:\067\18106\LOT16-8c.97\July 7, 1997 . , AGREEMENT OF SALE THIS AGREEMENT is entered into this i1J.... day of July, 1997, by and between RSM ASSOCIATES, L.P., a Pennsylvania limited partnership (formerly known as Ritner Park Associates), having its principal place of business located at 625 Hamilton Street Carlisle, Pennsylvania 17013 ("Seller"); , AND DD&K, INC., a Pennsylvania Corporation, 1898 North Market Street, Elizabethtown, Pennsylvania 17022 ("Purchaser"). BACKGROUND Seller desires to sell to Purchaser, and Purchaser desires to purchase, that certain tract or parcel of land, situated in Silver Spring Township, Cumberland County, Pennsylvania, consisting of 28.62 acres, more or less, being known as Lot 16 in the Plan of Subdivision of the Bent Creek Business Center (the "Plan") and being more particularly described in Exhibit "A" attached hereto, together with the improvements located thereon, if any, which parcel of land and improvements are hereinafter collectively referred to as the "Property." NOW THEREFORE, in consideration of the foregoing recital, which is made a part of this Agreement, and the mutual promises, agreements and covenants herein contained, and intending to be legally bound hereby, Seller and Purchaser agree as follows: 1. Sale and Purchase. Subject to the terms and conditions of this Agreement, Seller agrees to sell and convey to Purchaser, and Purchaser agrees to purchase and acquire from Seller, all of Seller's right, title and interest in and to the Property. 2. Title. The Property shall be conveyed to Purchaser by special warranty deed, conveying good and marketable title, free and clear of all liens and encumbrances, except for those set forth in Exhibit "B" attached hereto, and any liens or encumbrances created after the date of this Agreement which have the prior approval of Purchaser. Seller represents and covenants that Seller presently owns, or will have as of Settlement, good and marketable title in and to the Property (subject to the aforesaid) and is, or will at Settlement, be duly empowered to convey same in accordance with this Agreement. Such title to the Property shall be conclusively evidenced by the availability of title insurance issued at regular rates by a reputable title MilW- "-. ., " " insurance company authorized to do business in Pennsylvania. The cost of any and all such title insurance shall be paid by Pur- chaser. Seller agrees, at its expense, to provide a certified survey of the Property which will form the basis for the deed, and which will include metes and bounds descriptions and a certification of the total acreage. It is expressly agreed, however, that if Seller is unable to deliver at Settlement the quality of title represented above and required herein, other than as a result of the wilful misconduct of Seller, Purchaser's sole right and remedy shall be to take such title as Seller can deliver without reduction in purchase price or recovery of damages, or to terminate this Agreement by notice to Seller prior to Settlement, whereupon neither party shall have any further liability or obligation to the other hereunder, except that Seller shall be liable to Purchaser for Purchaser's actual and reasonable costs and expenses incurred in pursuing purchase of the Property under this Agreement up to a maximum of Twenty Thousand Dollars ($20,000), less amounts recovered from Seller under any other basis. 3. Settlement. Settlement hereunder shall take place at the law offices of McNees, Wallace & Nurick, located at 100 Pine Street, Harrisburg, Pennsylvania, or at such other mutually agreeable location in Pennsylvania, on a date and at a time reasonably acceptable to Seller and Purchaser, and within fifteen (15) days after all conditions under Paragraphs 7 and 8 are satisfied or waived, but in no event later than August 31, 1997 (the "Settlement"). The parties may extend the Settlement date at any time by mutual written agreement and Purchaser shall have the option to extend the time for settlement under this Agreement as provided for in subparagraph 8(k) below. At Settlement, the Price shall be paid and Seller and Purchaser shall execute and deliver all documents, instruments and agreements provided for herein and all others reasonably required to consummate the transactions provided for herein. 4. Possession. Possession of the Property shall be delivered to Purchaser at the time of Settlement. Prior to Settlement, Purchaser shall have the right to enter upon the Property at reasonable times, with the prior written consent of Seller, which shall not be unreasonably withheld, for the purpose of making such surveys, soil tests, engineering studies and other investigations as Purchaser may reasonably require. Purchaser shall bear all cost, expense, liability and responsibility for entering upon the Property, and for all actions or inaction thereon by or for Purchaser, its agents, contractors and/or representatives, prior to Settlement hereunder and Purchaser shall promptly repair any and all damage to or affecting the Property caused by same. Purchaser shall indemnify, diligently defend and hold Seller (its partners, - 2 - , e "" " -=~, j 1 III' agents, contractors and representatives) harmless from and against any and all claims, damages, loss, expenses, costs and liabilities resulting from or arising out of or in connection with Purchaser's entry upon the Property and any and all of the aforesaid action or inaction thereon, regardless of when same occur or when notice thereof is received or given. The indemnification shall be due and payable upon demand. If this Agreement is terminated for any reason, Purchaser shall provide Seller within ten (10) days of termination with copies of all surveys, soil tests and other engineering reports accumulated by or for Purchaser with respect to the Property, without cost or expense to Seller, unless the termination was by Purchaser as a result of Seller's default under this Agreement. 5. Purchase Price. The total purchase price and consideration for the Property shall be Eight Hundred One Thousand Three Hundred Sixty Dollars ($801,360) plus any additional amount payable under (c) below (the "Price"). The Price shall be due and payable as follows: a. The amount of Twenty Thousand Dollars ($20,000) (the "Deposit") shall be paid by Certified or Cashier's check made payable to Seller and delivered to Seller upon execution of this Agreement. This Deposit shall be retained by Seller in a separately designated interest-bearing bank account with the social security number of one of the Purchasers and the Deposit, plus all interest actually earned thereon, shall be applied to the Price at Settlement, or if Settlement does not occur, the Deposit and any interest earned thereon shall be retained by Seller as provided in subparagraph 8(k) below in the case of an extension and shall be held by the Seller in the same account until resolution and payment of all amounts owing to Seller, in the event of a breach by Purchaser, or shall be returned to Purchaser, with any interest thereon actually earned, in the event of termination of this Agreement without breach by Purchaser. Any and all interest shall be kept in the account and added to the Deposit. Seller is not holding the Deposit as an escrow agent or other fiduciary. b. The remaining Seven Hundred Eighty One Thousand Three Hundred Sixty Dollars ($781,360) (less any interest paid to Seller with the Deposit) shall be due and payable in one sum at Settlement and shall be paid by Certified or Cashier's Check made payable to Seller and delivered to Seller at Settlement or by funds wired to Seller's designated account at Settlement, with no wire completed until Bank confirmation to Seller. Payment may be made by wire transfer at Settlement only if Seller is so notified at least two business days prior to Settlement. - 3 - - - .. " , ' , , c. As an additional part of the Price, if the number of units that Purchaser builds or obtains approval to build on the Property exceeds 100, Purchaser shall pay to Seller an amount equal to the additional amount owing by Seller to Silver Spring Township under the agreement with the Township provided for in Section 7(a) below for or with respect to off-site improvements allocated based on estimated additional trip generation attributable to the additional units, up to a maximum of Two Thousand Dollars ($2,000.00). d. All payments shall be made in immediately available federal funds. 6. Adiustments. Real estate taxes, water, sewer and other current lienable charges, if any, shall be apportioned as of the date of Settlement on the basis of the fiscal year or other per~od of the applicable charging, assessing or taxing body. Subj'ect to paragraph 7 (c) herein, Purchaser shall be responsible for any and all benefit assessments and other fees or charges assessed against the Property subsequent to the date of Settlement, or assessed before Settlement but applicable to any period of time after Settlement, including without limitation any and all sewer and water connection fees, except that Seller shall, be responsible for and shall pay all water and sewer assessments, impact fees, and costs of required improvements, assessed as a result of the subdivision of the Bent Creek Business Center and/or the conveyance provided for herein, except EDU charge and connection fees. Purchaser is to pay all recreational fees and assessments, provided, however, Purchaser may contest any and all such recreational fees and assessments by appropriate proceedings and in good faith, but only if such proceedings stay and prevent any collection or execution for collection of same and provided that said proceedings and nonpayment do not result in any lien, restriction or encumbrance, or any other adverse consequence, for any or all of the properties in or constituting the Bent Creek Business Center other than the Property and then only arising after settlement between Seller and PUrchaser. As of the date of execution of this Agreement, Seller represents and warrants that it has no notice or actual knowledge of any Assessments, (as defined in paragraph 7(c) herein) and Seller has no actual knowledge that any such Assessment is pending. Purchaser shall pay all filing fees and recording costs at Settlement. 7. Conditions Precedent for Seller. This Agreement, and performance by Seller hereunder, is expressly conditioned upon satisfaction or written waiver by Seller of the following condi- tions: a. Seller shall have obtained prior to Settlement a satisfactory executed agreement with Silver Spring Township regarding off-site improvements and all other necessary - 4 - . - L' , ' , , approvals for the sale of the Property pursuant to the terms hereof, if and to the extent not already obtained, with all necessary subdivision plans recorded as required at or before Settlement (subdivision shall be obtained at Seller's sole cost and expense, except costs and expenses attributable to any contemporaneous land use approval sought by Purchaser) . b. Seller shall have acquired good and marketable title (legal or equitable) to the larger tract of real estate that includes the Property subject only to liens and encumbrances satisfactory to Seller and, with respect to the Property, liens and encumbrances permitted in accordance with Paragraph 2 above. c. There are no material assessments (excluding sewer assessments) or other fees or charges assessed against the property prior to Settlement (collectively the "Assessments") which would be the responsibility of Seller. Same shall be "material" if same in the aggregate exceed the sum of Twenty-Five Thousand Dollars ($25,000.00), net of any portion of such assessment paid by Purchaser. d. There is no material adverse change in the assets, business or financial condition of Purchaser prior to Settlement. Purchaser shall notify Seller within five (5) days, and in all events prior to Settlement, of any and all events or circumstances which may constitute or be reason- ably expected to constitute, alone or in conjunction with other facts or circumstances, or to cause alone or with other facts and circumstances, a material adverse change as described in the preceding sentence. e. All representations of Purchaser herein shall be true and correct in all material respects when made and as of Settlement. Purchaser shall have performed timely all obligations and duties hereunder to be performed by Purchaser at or before Settlement. Except as otherwise provided in this Agreement, upon the failure of any of the foregoing conditions precedent, Seller shall have the absolute right to terminate this Agreement upon written notice to that effect to Purchaser or to waive such condition by settling. If this Agreement is terminated pursuant to this paragraph 7, Seller and Purchaser shall have no further liabilities or obligations hereunder, except that if Seller has terminated only because of failure of condition 7b. above, then Seller shall be liable to Purchaser for Purchaser's actual and reasonable costs and expenses incurred in pursuing purchase of the Property under this Agreement up to a maximum of Twenty Thousand Dollars ($20,000), less amounts recovered from Seller - 5 - " " L--. " , ' . ' , , under any other basis. Seller and Purchaser agree to cooperate in obtaining, and Seller shall diligently pursue by reasonable efforts any and all actions, things or items necessary to satisfy the conditions under 7a and 7b above, in a timely manner at Seller's sole cost and expense. 8. Conditions Precedent for Purchaser. This Agreement, and performance by Purchaser hereunder, is expressly conditioned upon satisfaction or written waiver by Purchaser of the following conditions at or before Settlement: a. Receipt by Purchaser of reasonably satisfactory evidence that it will receive good and marketable title in accordance with paragraph 2 above, which Purchaser shall diligently pursue beginning within fifteen (15) days after the date hereof and Purchaser must notify Seller of any nonsatisfaction of this condition on or before July 31, 1997; b. Receipt of a survey provided by Seller, disclosing no material encroachments, gaps or other matters which would make the Property different in any material respect than that described in Exhibit "A," attached hereto, and disclosing the location of all utilities, rights-of-way, easements and encroachments on the Property, to the extent known or discoverable with reasonable efforts, which Purchaser shall diligently review and approve or disapprove within fifteen (15) days after receipt; c. Receipt by Purchaser of reasonably satisfactory evidence that the Property is or will in a timely manner be served by water, sewer, storm sewer, gas, telephone, cable television and electric services, which evidence Purchaser shall request from the appropriate parties within fifteen (15) days after the date hereof and Purchaser must notify Seller of any nonsatisfaction of this condition on or before July 31, 1997; d. Receipt by Purchaser of reasonably satisfactory evidence that there are no Environmental Claims or Materials of Environmental Concern, as such terms are defined in paragraph 10 (d), affecting the Property, including without limitation the presence of hazardous or toxic substances or existing or past failure to comply with any local, state or federal law relating to the Property, which study and report Purchaser shall request within fifteen (15) days after the date hereof and Purchaser must notify Seller of any nonsatisfaction of this condition on or before July 31, 1997; - 6 - ;" ,~~,'~ - ~ - "" ; , , ' , , e. All representations of Seller herein shall be true and correct in all material respects on the date hereof and as of Settlement. Seller shall have performed timely all duties and obligations hereunder to be performed by Seller at or before Settlement; f. The Purchaser shall have obtained a legally binding commitment for construction financing for its proposed construction for the intended use of the Property in an amount not less than $1,200,DOO, providing for interest at a rate not in excess of 10% per annum, compounded daily or less frequently, and otherwise upon terms reasonably satisfactory to Purchaser and Purchaser must notify Seller of any nonsatisfaction of this condition on or before July 31, 1997; [' I i of' g. The Purchaser shall have received an allocation for the Property of sufficient sewage capacity for its currently intended use of the Property, requiring a payment for each Equivalent Dwelling Unit ("EDU") not in excess of $4,200, and public utilities, including water, electricity, and telephone service in reasonably sufficient capacity, for the intended use of the Property. Whenever used in this Agreement, the "intended use of the Property" shall mean the development of approxim9tely 100 units (50 buildings) intended for senior housing condominiums as described and indicated in the plans attached hereto as Exhibit "e"; h. Seller shall have demolished and removed the old house upon the Property and will remove any heating fuel tank located therein, as provided for in Paragraph 11 below; i. The Purchaser shall have received soil tests and other examinations performed by or at the direction of the Purchaser revealing that the Property is reasonably satisfactory for the intended use of the Property. Purchaser shall request all such soil tests and other examinations within fifteen (15) days after the date hereof and Purchaser must notify Seller of any nonsatisfaction of this condition on or before July 31, 1997; j. The Property shall not have suffered any material adverse damage or change from flooding, erosion or other acts of nature or Acts of God that would prevent or materially interfere with the intended use of the Property; (k) The Purchaser shall have obtained final approval by the Township of the land use development plan for the intended use of the Property, which shall have been submitted by Purchaser not later than fifteen (15) "days after final Township approval of the Plan; provided that if - 7 - r~=.. ." - ~"" - , ' , ' , , 10. Environmental Matters. a. ComDliance with Laws. To the best of Seller's actual knowledge the Property is in full compliance with the Environmental Laws (as hereinafter defined). Seller has not received any notice that alleges that the Property is not in such full compliance. b. Pendina Claims. There is no Environmental Claim (as hereinafter defined) pending or threatened against Seller or, to Seller's best actual knowledge, against the Property. c. Environmental Studies. Seller has had prepared on its behalf, by R. E. Wright Associates, a phase I Study, ("Report") of the Property, dated June, 1996 (REWEI Report 97228-1-1), and Purchaser hereby acknowledges receipt of a copy of that Report. Seller represents and warrants that the Report is the only environmental study, investigation, test, evaluation and analysis prepared by or for Seller with regard to the Property. d. Definitions. (1) "Environmental Claim" as used herein shall mean written notice by any person or entity alleging liability arising out of, based on or resulting from any violation, or alleged violation, of any Environmental Law. (2) "Environmental Laws" as used herein shall mean all federal, state and local laws and regulations relating to pollution or protection of human health from contaminants in the environment or to protecting the environment itself, including without limitation, laws and regulations relating to emissions, discharges, releases or threatened releases of Materials of Environmental Concern, or otherwise relating to the use, treatment, storage, disposal, transport or handling of Materials of Environmental Concern. (3) "Materials of Environmental Concern" as used herein shall mean any and all substances which are any of the following: (a) explosives, oil and petroleum products and byproducts, urea formaldehyde, radon, radioactive materials, polychlorinated biphenyls or related or similar materials ("PCBs"), asbestos or material containing asbestos; or (b) defined, designated or listed as a "Hazardous Substance," "Regulated Substance," "Hazardous Material," "Hazardous Waste," "Toxic Waste," "Toxic Material," "Contaminants" or "Industrial Waste," or defined, designated or listed in a similar manner, under the (i) - 9 - ~ ~<~" , ~ , ' -~, ! , , Clean Water Act, 33 U.S.C. Section 1251 et sea.; {ii} Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. Section 9601 et sea.; (iii) Hazardous Materials Transportation Act, 49 U.S.C. Section 1801 et sea.; (iv) Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et sea.; (v) Pennsylvania Solid Waste Management Act, Pa. Stat. Ann. tit. 35 Section 6018.103; (vi) Pennsylvania Clean Streams Law, Pa. Stat. Ann. tit. 35, 691.1 et sea.; (vii) Pennsylvania Hazardous Substances Site Clean-Up Act, Pa. Stat. Ann. tit. 35, Section 6020.101 et sea.: or (viii) any other Environmental Laws. -- 11. Reoresentations. Warranties and Covenants of Seller. Seller hereby represents, warrants and covenants to and with Purchaser, upon which same has relied, as follows: a. To Seller's knowledge, after Seller's review of the records for Cumberland County, Pennsylvania and the tax records for Silver Spring Township, Cumberland County, Pennsylvania, neither the Property nor any portion thereof has received any special tax assessments of any kind that would result in a recapture of any prior tax savings or reductions as a result of or based on the sale contemplated in this Agreement and/or the intended use of the Property as stated above; b. The Property is, or will on or before November 30, 1997, be served by water and sewer, which lines shall then extend to a border of the Property at no cost to Purchaser. To Seller's knowledge, even though there is no "reservation" of EDUs, there should now be sufficient EDUs available for the intended use of the Property. Seller shall use reasonable efforts to cause the applicable utilities companies to extend telephone and electrical lines to the Property on or before such date, at no cost to Purchaser, and shall request, at no cost to Seller or Purchaser, that cable television lines be extended to the Property by such date; c. The Property shall, as of Settlement, be in full compliance with all subdivision and land use development plans and all laws, ordinances, rules, regulations, orders and decrees relating thereto. In addition, Seller shall be in compliance with same as to all or any other parts of the Bent Creek Business Center to the extent any such non- compliance by Seller would materially and adversely affect the Property and/or the intended use of the Property; d. Seller has posted, or will as of Settlement have posted, all required bonds securing all improvements to the Bent Creek Business Center as shown on the final subdivision - 10 - ,-~~ "'>'0 " , ' and/or land use development plan for same as approved by Silver Spring Township, with all such improvements to be completed by Seller or caused to be completed by Seller (to the extent within Seller's control) in a timely manner, reasonably satisfactory to the requiring authority; e. No part of the Property is or constitutes wet lands or waters of the United States or waters of the Commonwealth of Pennsylvania such as would prevent or materially interfere with the intended use of the Property. f. As of settlement, Purchaser shall have access to the Property for equipment and by September 30, 1997, Purchaser shall have access to the Property by way of a roadway suitable for construction vehicles in all weather. On or before November 30, 1997, Seller shall have constructed a street providing access from the Property to Pennsylvania Route 114, which street shall be constructed on standards as necessary to dedicate same to Silver Spring Township (except for final wearing course layer, to be added later), with a traffic signal installed at such intersection by Seller. Until the road is dedicated to the Township, Seller will maintain the roadway and easement area as needed for construction on Lot 16 and, if same continues after issuance of an occupancy certificate for any building on Lot 16, in a manner consistent with the way that Township maintains its comparable streets and roadways (except that the final wearing course shall, in no event, be required prior to May 31, 1998). Seller shall have also obtained or imposed upon Lot 17 of the plan an easement for emergency access to Lot 16 in a precise location and upon terms reasonably satisfactory to Seller and Purchaser. All obligations of Seller hereunder to construct, install and/or erect improvements shall be extended to the extent same have been delayed by acts of nature or Acts of God, wars, riots, civil disturbance, labor actions, strikes, boycotts or other forces or factors beyond the reasonable control of Seller. g. No storm water management facilities shown on any subdivision or land use development plan as being located upon the Property will require any maintenance by Purchaser or will same prevent or materially interfere with the intended use of the Property, and to Seller's knowledge no additional storm water management facilities or easements are now expected, except in each case as may be required for storm water management of storm water originating on the Property. h. To Seller's knowledge, there is no fact or condition existing on the Property that is reasonably expected to cause or result in an action or proceeding at - 11 - -'~~ - ,-~ , ' , , law or in equity against the Property or any owner thereof or that violates any ordinance, law, rule, regulation, order or decree applicable to the Property. To Seller's knowledge there is no action, suit or proceeding pending or threatened against or otherwise directly affecting the Property. i. Not later than settlement, Seller shall have demolished and removed the old house located upon the Property, at Seller's cost and expense. In addition, Seller shall have removed any heating fuel tank located therein in compliance with Environmental Laws and remedied any leakage therefrom, up to a maximum cost to Seller of Ten Thousand Dollars ($10,OOO) . 12. Restrictive Covenants. The development, use and future conveyance of the Property shall be subject to the restrictions, encumbrances and restrictive covenants in the Protective Cove- nants Agreement, as set forth in Exhibit "D" attached hereto. Purchaser shall execute and deliver to Seller the Protective Covenants Agreement at Settlement. The Protective Covenants shall be recorded and shall run with the land. 13. Realtv Transfer Tax. Purchaser and Seller shall divide equally the payment of any and all realty transfer taxes required to paid as a result of the conveyance set forth herein and same shall be paid as and when due, including without limitation any payment at Settlement. 14. Cure Period. Upon determination by either Purchaser or Seller that the conditions precedent to its obligations hereunder as provided in paragraphs 7 and 8, as applicable, have not been satisfied at the applicable time, Purchaser or Seller, as the case may be, must provide the other party with written notification to that effect. The other party then shall have until fifteen (15) days after notice to cause such condition to occur or breach to be cured (the "cure period"). Failure to give such notice shall not excuse the obligations of the party entitled to receive such notice, unless that other party has been materially adversely effected by the failure of such notification. If no notice has been given at or before Settlement, the conditions precedent shall be deemed to have been satisfied or waived in their entirety. If notice pursuant to this paragraph is given and the recipient of the notice is unable to cause such condition to occur or breach to be cured within the cure period, the party giving notice shall have such rights as are provided under this Agreement for breach hereof or a failure of a condition precedent. The foregoing notwithstanding, no cure period shall extend or delay the last possible Settlement date provided for herein and neither party shall be entitled to a cure period for any failure to settle as and when provided herein. - 12 - ~ . < L -~ -~'1~ . ' , . 15. Default. Should either party fail to fulfill and perform in any material respect any of its obligations hereunder, and such is not cured during the "cure period," if any, that party shall be in default hereunder. 16. Remedies on Default. In the event of a default by Seller or Purchaser the non-defaulting party shall be entitled to any and all rights and remedies existing at law or in equity, including without limitation, damages and the equitable remedy of specific performance, and all rights and remedies set forth herein or in any agreement, document or instrument executed pursuant hereto. 17. Authorization and Conflicts. Seller represents and warrants to Purchaser that Seller is duly organized and validly existing under the laws of the Commonwealth of Pennsylvania and the execution, delivery and performance under this Agreement and each of the documents, instruments and agreements to be executed hereunder have been duly authorized. Each Purchaser represents and warrants he is an adult individual with full power and authority to enter into and perform under this Agreement. Each of Seller and Purchaser represent and warrant to the other that upon signature this Agreement shall constitute the valid, legal and binding obligation of that party in accordance with the terms of this Agreement. Each further represents and warrants to the other that execution, delivery and performance of this Agreement will not violate or be a breach of any organizational documents, or any contracts, agreements, indentures, documents or instruments or any laws, orders or decrees, binding upon same or pending with respect to the party. 18. Eminent Domain. If, prior to Settlement, all or any material portion of the Property is subject to taking by eminent domain or similar proceedings by any governmental entity having jurisdiction over the Property ("Eminent Domain"), Purchaser, at its sole option, exercisable prior to Settlement, may terminate this Agreement by written notice to Seller given within thirty (30) days after notice of the taking or pending taking, whereupon neither party shall have any further liability or obligation to the other hereunder. If Purchaser opts to proceed to Settlement, the parties shall proceed to Settlement without reduction in the Price and Purchaser shall receive the entire award for such taking. As of this date, and again at Settlement, Seller represents and warrants that it has no notice of any Eminent Domain proceeding against the Property and has no reason to believe that a notice of Eminent Domain is forthcoming. 19. Risk of Loss. Risk of loss of the Property shall be borne by Seller until the time of Settlement. If the Property suffers material damage prior to Settlement, either party may terminate this Agreement by written notice to the other given - 13 - ~" - .,,,- . ' within thirty (30) days after the damage occurs, unless such damage is caused by any act or omission of a party hereto, or any agent, employee, invitee, or designee of same, in which case the non-damaging party shall have the option to terminate or to proceed to Settlement without reduction in the Price and Purchaser shall then receive an assignment of any insurance proceeds which would otherwise be payable to Seller, if any. 20. Brokers. Each party represents and warrants to the other that it has not contracted with or involved any real estate broker, agent or similar person with respect to this Agreement, and that no brokerage commission or like fee is due to anyone in connection with this sale or this Agreement as a result of the actions of that party. Any party violating this representation and warranty shall indemnify, promptly defend and hold the other party harmless from and against any and all costs, liabilities, obligations and expenses, including reasonable attorneys' fees, incurred as a result of or arising out of such violation. 21. Leaal Fees. Each party shall pay its own attorneys' fees and expenses with respect to the negotiation, preparation and performance of this Agreement; provided, however, that in the event that either party shall be in default hereunder the non- defaulting party shall be entitled to recover from, and the defaulting party shall pay, all reasonable attorneys' fees, expert fees and court costs incurred by the non-defaulting party in the enforcement of this Agreement and/or in the pursuance of any rights, remedies or damages hereunder, with such costs and expenses allocated equitably and comparatively between the parties by a court of competent jurisdiction in the event that both parties shall be in default hereunder. 22. Notices. All notices hereunder shall be in writing and shall be given when delivered in person or sent by registered or certified mail, return receipt requested, postage prepaid, addressed to the parties at the addresses set forth below. Either party may change its address for purposes of receiving notice, by notice to the other. If to Seller: Donald H. Mowery, General Partner Ritner Park Associates 625 Hamilton Street Carlisle, PA 17013 If to Purchaser: DD&K, Inc. 1898 North Market Street Elizabethtown, PA 17022 Attn.: David G. Heisey, President - 14 - 0' 23. Miscellaneous. a. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and assigns. Purchaser may not assign this Agreement, or any rights or duties hereunder, without the prior written consent of Seller, which consent may be withheld in Seller's sole discretion; provided,however, that Purchaser may assign Purchaser's rights ,and interests hereunder to a corporation, partnership or limited liability company formed by or for them for the purpose of developing the Property for the intended use of the Property provided that Purchaser remains fully liable hereunder after such assignment. The obligations and liabilities for performance of Purchaser hereunder shall be joint and several as to David Strong and David Heisey. b. This Agreement shall not be amended, modified or rescinded except by a written agreement signed by Seller and Purchaser. No right, power, remedy or privilege hereunder shall be waived except to the extent expressly set forth in writing signed by the party charged with the waiver. No waiver of one event or breach shall waive any future or further event or breach. c. This Agreement contains the entire agreement and understanding between the parties with regard to the subject matter hereof, and all other representations, undertakings, discussions and/or agreements of any kind, if any, made prior to or contemporaneously with this Agreement, are superseded by the provisions of this Agreement and are hereby made null and void. d. This Agreement shall be construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania (excepting conflict of laws). Each party agrees and consents to venue and jurisdiction only in the Court of Common Pleas for Cumberland County, Pennsylvania, and/or the United States District Court for the Middle District of Pennsylvania, for any and all disputes hereunder or otherwise with respect to the Property or this Agreement. e. If any term or provision or portion thereof of this Agreement, or application thereof to any person or circumstance be held invalid or unenforceable, in whole or in part by a court of competent jurisdiction, the remainder of said term or provision and of this Agreement shall not be affected thereby and shall remain in effect to the fullest extent permitted by law; and. to this end, the parties hereto agree that the terms and provisions of this Agreement are severable. f. Neither party may record this Agreement or any memorandum hereof. Any violation of the preceding sentence - 15 - , . . shall be of the essence of this Agreement and shall immediately provide Seller with the right to terminate this Agreement, in addition to all other remedies available to Seller. g. Time is hereby declared to be of the essence of each and every provision of this Agreement. h. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement. i. The representations, warranties, covenants and agreements contained herein shall survive the Settlement. j. Headings set forth in this Agreement are for reference only and shall not be used in interpreting or construing this Agreement. The use of the masculine gender shall include the feminine and/or neuter genders, and vice versa, and use of the singular shall include the plural and vice versa. This Agreement shall not be construed against anyone party as. the drafter hereof. k. All Exhibits attached hereto are incorporated herein by reference and are made a part hereof. - 16 - " . ~ IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as of the day and year fist above written. WITNESS: ~/1, tV~ . WITNESS: iJ,OI<;/'4 SELLER: RSM ASSOCIATES, L.P. a Pennsylvania limited partnership By: RSM Associates, Inc., Sole Gener Partner By PURCHASER: DD&K, Inc. - 17 - "- , , FRCW1 .Me ~ES'I~E ~lO< ;L!Jr~ DE , " -- l 1: l r . '. FIR.~T A~NJ>ME~r TO >>>>&1<. INC. AGREEMRNT OF SALE , ,/",/ tMr; I TInS FIRST AMENDMENT is made this t.:JIb..day o~ 1998, by and between RSM ASSOCIATES, LoP., a Pennsylvania limited partnership (fonnerly known as Rimer Park Associates) ("Sellet"), andDD&K, INC., a Pennsylvania corpotation ("PUtchaser"). WHEREAS, Seller and PUtchaser entered into a certain Agreement of Sale, dated July 7, 1997 (the "Agreement), pt(lviding for sale and purchase of a certain ttact or parcel of land in Silver Spring Township, Cumberland, Peuusylvania, consisting of28.62 acres, more or less, and being known as Lot 16 of the Plan of Subdivision of the Bent Creek Business Center (the "Plan"), which tract or parcel, along with any and all improvements located thereon, is referred to as the "Property"; and WHEREAS, certain delays have been encountered by Seller in connection with the acquisition, subdivision and development of the larger parcel that includes the Property and, as a ~ult, Seller and Purchaser bave agreed to certain extensions of time and other modifications applicable to the Agreement of Sale, which extensions and modifications are as set forth in this First Amendment. THEREFORE. in consideration of the foregoing recitals, which are made a part hereof; and the mutual promises, agreements and covenants herein contained and those in the aforesaid Agreement of Sale, and intending to be legally bound hereby. the parties hereby amend, modify md supplement the Agreement of Sale as follows: 1. Patagraph 3 shall be amended by deleting the reference to "August 31, 1997" and replacing it with "March 31, 1998. as the lat date for settlement. - - ~ - -, - - --- - - -- . FRtI-l I f"C NEES WRLLi=lCE NUR t 0< ~ L ... .i, 1-":'. ....j-tJ~ - -. L ~l' - -""'.." , , 1" 'l- T . , , 2. Paragraph 7a. sball be amended to provide the "satisfactory executed agreement" shall be with .Silver Spring Township and/or Pe:nnDOT regarding the off.slte improvements...." 3. Para/lJlPh 8 is hereby amended by replacing eachrefenmce to .July 31,1997" with. "Match 31, 1998" and Purchaser acknowledges that the conditious under subparagraphs b. d (except as to house and house site). t; i and k of Paragraph 8 bave already been satisfied. In addition, in subparagraph (1) the reference to . August 22, 1997" sha11 be replaced with "March 31,1998". 4. Paragraph. 11, subparagraph b sball be amended by deleting the reference to . "November 30, 1997" and IC]l1acing it with "August IS, 1998".)>> addition, if the public sewer is not connected and functioning by July 15, 1998, then from that date until the date same is functioning (not later than August IS, 1998), Seller shall connect the sanitary sewer line from the Property to a holding tank(s) and shall have such tank(s) pumped as required in order that the sanitary sewer system to the Property may be functional for one model located on the Property with working plumbing facilities to be used for showing prospective purchasers (not for · occupation as a residence), but oDly if and to the extent permitted by the applicable state and/or 10calllovemmental authorities. 5. Paragraph 11, subparagraph f shall be amended by de1cting the reference regarding a construction vehicle roadway built by .September 30, 1997" and replacing that date with "May 15, 1998" and by deleting the reference in the second sentence to building the street (except the final wearing course layer) by November 30, 1997 and replacing that date with , .September 15, 1998". In the same subparagraph, the reference regarding final wearing course to be installed by "May 31, 1998" shall now be replaced with "JUly 31, 1999". -2- FROI1 J/1C ~S """-L,...:e ""!' I ~ )1/ i.H ~~ "lj~LL Jj , . , ( ~ "'-~ , - . ~i': \ J . .... 6. Attac:hed to this First Amendment is the final COVcnants, which are Exhibit *D" to the Agreement of Sale. 7. Except to the extent expIllSSly amended above, the Agreement ~f Sale is and 'P.m"in~ in full force and effect, as extended, ad is hereby rati1icd 8IId affirmed in all partiCUlars and is incozporated herein. IN WITNESS WHEBEOF, the parties hereto have executed this First Amendment to the Agreement of Sale, intending to be legally bound hereby, on the date first set forth above. lJJrT ,..~ ~T: SELLER: RSM ASSOCIATES, L.P., a Pennsylvania Limited Partnership By: RSM ASSOCIATES, INC., Sole General Partner By: DOnald H. Mowery, President . ATIEST: PURCHASER: DD&1(, INC. tJP~- By:9Yo~(uJJ-J1,er'- --. David O. Heisey, President K:\0671181 !l6\l>D&<1{..JCL -3- '~ ","'. -----'.'. ._" '"-~-,~'~'~-" -'-.~. "~ .-~ ,~-".>'- . .. ) . ., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DD&K, INC" Plaintiff ) ) ) No. 00-4875 ) ) CIVIL TERM ) ) ) NOTICE TO PLEAD vs R,S. MOWERY & SONS, INC. and RSM ASSOCIATES, L.P, Defendants 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 Answer, New Matter and Counterclaim and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defense or objections to the claims set forth against you, You are warned thii 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 under New Matter and in the Counterclaim or for any other claim or relief requested by the Defendant. You may lose money or property or other rights important to you. YOU SHOULD TAK,E TillS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HA VB A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP, Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 Telephone (717) 249-3166 Date: p / Jt>>o ,-- . -.~ .2 . ," . i I I I :;~' !:ii i][. !:[' "" '" ~ if' ii 'r. [ ~~ " ~' ;r; l' I, i~ ! , '1, ~ ~ " - ,'_,_ 'r.' Yo" "~,,-,-~--y , _'. "'. -~-,~ -', - - -" -- , . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CML ACTION - LAW DD&K, INC., Plaintiff vs ) ) ) ) ) ) ) ) No. 00-4875 CIVIL TERM R,S. MOWERY & SONS, INC, and RSM ASSOCIATES, L.P. Defendants COMPLAINT AND NOW, comes DD&K, Inc" by and through their attorneys, Gingrich, Smith, Klingensmith & Dolan and files this complaint alleging as follows: 1. The Plaintiff, DD&K, Inc" is a Pennsylvania Corporation with its principal place of business located at 1898 North Market Street, Elizabethtown, Pennsylvania 17022 (hereinafter "DD&K"), 2, One Defendant is R.S, Mowery & Sons, Inc., a Pennsylvania Corporation with its principal place of business at 625 Appleton Street, Carlisle, Pennsylvania 17013 (hereinafter "R.S, Mower & Sons"), 3, Another Defendant is RSM Associates, L.P" (formerly Ritner Park Associates), a Pennsylvania Limited Partnership with its principal place of business at 625 Hamilton Street, Carlisle, Pennsylvania 17013 (hereinafter "RSM Associates"), 4, This action is properly filed in the Cumberland County Court of Common Pleas because the property at issue in the suit is located in Cumberland County, Defendants' principal place of business is in Cumberland County, and related litigation has been filed in the Court of Common Pleas of Cumberland County, Carlisle, Pennsylvania atDocket No. 98-5484 (R,S. Mowery _" ,,,"---,~,,,.~.~,"~."< -~ <0' """- _'<__,' _~ & Sons, et al, v. H. Edward Black), 5, On March 25, 1997, the three (3) principals ofDD&K, me., namely, David G, Heisey, Robert H, Kauffman and Miriam I. Kauffman (one (1) principal), and David R, Strong entered into a joint venture development agreement for the purpose of acquiring and developing a certain property for a retirement condominium community with said property being known and designated as lot #16 in the plan of subdivision of the Bent Creek Business Center containing approximately 28.62 acres ofland and being situate in Silver Spring Township, Cumberland County, Pennsylvania, The property is further described in and is the subject matter of an agreement of sale between RSM Associates and DD&K dated July 7, 1997, A copy of said agreement of sale is attached hereto and marked exhibit "A." 6, The said agreement of sale was amended on or about April 15, 1998 (exhibit "B"), the deed of conveyance was executed M~h 23, 1998 and recorded on April 15, 1998 in and for the office. of recording of Cumberland County, Carlisle, Pennsylvania which date, April 15, 1998, is the day the agreement closed and DD&K purchased the described property. 7, Said agreement and to the extent modified by amendment, provides for "Representations, Warranties and Covenants of seller," These representations, warranties and covenants are specifically outlined in paragraphs 11 a-I and 7 a-e (July 7, 1997 agreement exhibit "A") which paragraphs are incorporated herein by reference, COUNT I - BREACH OF CONTRACT h8, Specifically, R.S, Mowery & Sons and RSM Associates have failed to satisfy the representations, warranties and covenants in the following particulars: a, Paragraph II(c) (July 7, 1997 agreement exhibit "A") provides: ->-" ~ '. ~y'"'" '",' - =~' ~ -'-j', "-'~-,-'.:' ,-, ~- ,,- -" , -, ,'--.'-- -,,-, --J __; The property shall, as of Settlement, be in full compliance with all subdivision and land use development plans and all laws, ordinances, rules, regulations, orders and decrees relating thereto. In addition, Sellers shall be in compliance with same as to all or any other parts of the Bent Creek Business Center to the extent any such non- compliance by Seller would materially and adversely affect the Property and/or the intended use of the Property; b. Paragraph 11 (b) (July 7, 1997 agreement exhibit "A") provides: The Property is, or will on or before November 30, 1997, be served by water and sewer, which lines shall then extend to a border of the Property at no cost to Purchaser, To Seller's knowledge, even though there is no ''reservation'' of ED Us, there should now be sufficient EDUs available for the intended use of the Property. Seller shall use reasonable efforts to cause the applicable utilities companies to extend telephone and electrical lines to the Property on or before such date, at no cost to Purchaser, and shall request, at no cost to Seller or Purchaser, that cable television lines be extended to the Property by such date; c, Paragraph 1 1 (b) was amended by First Amendment to DD&K, Inc, Agreement of Sale referenced above and dated April 15, 1998 "by,deleting the reference to November 30, 1997 and replacing it with August 15, 1998". d, Sewer service was not provided by the agreed date of August 15, 1998. While a sewer line had in fact been installed by Defendant the Township would not issue occupancy permits until January 1999, well beyond the July 1998 construction completion date of at least four (4) condominium units built by Plaintiff, because Defendants' failed, to the satisfaction of the Township, to timely resolve issues related to an easement area through which the sewer line ran, As a result sewer service was not provided to Plaintiff by Defendant as agreed, e, The Pennsylvania Historical and Museum Commission is one of the agencies needed to approve the subdivision plan submitted by the Defendants, The Pennsylvania Historical and Museum Commission considers such items such as whether or not potential, as for example, ~ "0 ,~_ "~".n,-, ~",.:..:-,..- "." t.' -~, ~., '" Indian artifacts, are on the land to be disturbed, It is believed and therefore averred the original subdivision plan as designed by H. Edward Black & Associates, P.C" based upon information provided by the Defendants herein, provided for the sewer line to run along the Conodoguinet Creek on the East side ofthe peninsula/development (Bent Creek Business Center, the entire tract to be developed of which DD&K's land was one lot, hereinafter "development") which design was to carry sewer from the North end of the Development to what is commonly referred to as the Snyder property (the adjoining property) at the South end of the development. At the Snyder property, the sewer line was to be constructed through an existing easement and connect to the existing line that services the Snyder property. It is believed and therefore averred, in reviewing the development subdivision plan as submitted, the Pennsylvania Historical and Museum Commission requested the sewer line as proposed not run so close to the creek and it be moved further away from the creek because Indian artifacts may potentially be located in the area initially proposed for construction of the sewer line, This recommendation was accepted by the Defendants and sewer was ultimately constructed at the revised location, f. The revised sewer line location, when constructed to connect up to the Snyder property, was not constructed in the existing easement, but rather, was constructed right across the Snyder property to connect with the existing sewer line without the pennission of the owners of the Snyder property, g, The fact the sewer line was not constructed in the designated easement on the Snyder property was not discovered by DD&K until a representative ofDD&K on or about June/July 1998 went to the Silver Spring Township Office indicating DD&K would soon be calling for an occupancy inspection of the Bent Creek Crossing condominiums, Four (4) units at that time were , ."<~ .'~ +. " .~ ",., ,.-.. ."," just about completed and DD&K was now actively marketing the properties for sale. A township representative indicated occupancy permits would not issue until the off-site sewer issue, as set forth above, was resolved. h, It is believed and therefore averred it was not until January 1999 that final occupancy permits issued allowing the units as constructed to be sold, I. The models as constructed by DD&K, Inc, were opened in the summer of 1998 for people to visit, show and purchase. However, final occupancy permits were not available for approximately six (6) months after construction completion and the units could not be sold until the occupancy permits issued, J. DD&K could not offer to prospective buyers when occupancy permits would be available, Sales were delayed and prospective buyers expressed concern over sewer. 9. Defendants finally entered an agreement with representatives from the Snyder property and occupancy pennits did issue. 10, The exact cost to Plaintiffs as a result of the occurrences as described above, has not yet been fully calculated, but is estimated to be well in excess of $25,000,00. 11, Accordingly, as a result of the delays in the project caused by Defendants, Plaintiff have suffered damages in excess of$25,000.00 12, The principals ofDD&K have made claims against the corporation. WHEREFORE, Plaintiffs request judgment in their favor and against Defendants with respect to this Complaint in an amount in excess of $25,000.00, plus interest, costs and whatever other relief this Honorable Court deems appropriate. , - ,- - - __CI__-~'- --. ,-"--, ~_'kl' - - <0', - i COUNT II - NEGLIGENCE 13, Paragraphs 1 through 12 above are incorporated herein by reference as though set forth in length herein, 14, It is believed and therefore averred Defendants engaged the services ofH, Edward Black & Associates (hereinafter "Black") to perform various sketch planning services and site analysis to assist Defendants in determining whether the development of the Bent Creek Business Center was feasible, 15. Defendants decided to move forward with development and hired Black to obtain all necessary federal, state and local approvals inherent in the project. 16. DD&K also hired Black to prepare and complete to approval of all required authorities a land development plan for their lot purchased from RSM Associates for the development of a condominium community. 17, DD&K's land development plan could not be approved until Defendants subdivision plan was in order and approved by all authorities required to approve such plan, 18. Plaintiff believes and hereby avers that delays and its inability to obtain approval for its development plan was caused by the negligence of the Defendant in the following particulars: a, Defendant failed to provide information requested by Black in a timely manner, b, Defendant failed to fully cooperate with Black in the processing of both plans. c, Defendant failed to adequately and timely review the work product of Black during the course of the preparation of plans. -. ~~---,-, ,- " ~,,' -, '"--~-=~''-I.''..".;'-~_:''''''' -, d, Such other further elements of negligence and/or acts of omission which were committed by the Defendant and may be detennined during the course of discovery all of which Plaintiff reserves the right to add as may be appropriate. 19, It is believed and therefore averred that Defendant's failures and negligence as outlined above were the direct, proximate and legal cause for delay and resulted in losses being sustained by the Plaintiff, WHEREFORE, DD&K respectfully request this Honorable Court enter an Order in its favor and against Defendants in an amount in excess of $25,000.00. Respectfully submitted, GINGRICH, SMITH, KLINGENSMITH & DOLAN Date: ~ I fb r~ By: hn M, Smith, Esquire 9520 Attorney for Plaintiff 222 South Market Street, Suite 201 Elizabethtown, P A 17022 (717) 367-1370 ~" - . "-><~,,,-~. "'.. -~' -' ~"-, -, ,-,'," -. , - - ',. . " -'" -, ~'~- - VERIFICATION I, David G. Heisey and David R. Strong, on behalf ofDD&K, Inc., verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa, C,S, Section 4904 relating to unsworn falsification to authorities, Date: C;P/ ~ By: Date: o/Zt/j laV By: , .'n. ',__",_~ "-_-~'-.__,_ 0 "Ho''-;",",'' _ " IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DD&K, INC" Plaintiff vs ) ) ) ) ) ) ) ) No. 00-4875 CIVIL TERM R.S, MOWERY & SONS, INC, and RSM ASSOCIATES, L.P, Defendants CERTIFICATE OF SERVICE I, John M, Smith, Esquire of Gingrich, Smith, Klingensmith & Dolan hereby certify that I duIy served a copy of the foregoing Complaint to the following person by United States first class mail, addressed as follows: James W, Kutz, Esquire McNeese, Wallace & Nurick 100 Pine Street P,O, Box 1166 Harrisburg, PA 17108-1166 Respectfully submitted, . GINGRICH, SMITH, KLINGENSMITH & DOLAN Date: 1/Z1 1fJJ~ I M. Smith, Esqui , Attorney for Plaintiff 222 South Market Street, Suite 201 EIizabethtown, P A 17022 (717) 367-1370 -.~~ .~ - 1_ ,__~ ~' ~ "'~~-"~" . - ~ ,- K:\067\18106\LOT16-8c,97\July 7, 1997 AGREEMENT OF SALE THIS AGREEMENT is entered into this ,11-. day of July, 1997, by and between RSM ASSOCIATES, L.P., a Pennsylvania limited partnership (formerly known as Ritner Park Associates), having its principal place of business located at 625 Hamilton Street Carlisle, Pennsylvania 17013 ("Seller"); , AND DD&K, INC., a Pennsylvania Corporation, 1898 North Market Street, Elizabethtown, Pennsylvania 17022 ("Purchaser"). BACKGROUND Seller desires to sell to Pur'chaser, and Purchaser desires to purchase, that certain tract or parcel of land, situated in Silver Spring Township, Cumberland County, Pennsylvania, consisting of 28.62 acres, more or less, being known as Lot 16 in the Plan of Subdivision of the Bent Creek Business Center (the "plan") and being more particularly described in Exhibit "A" attached hereto, together with the improvements located thereon, if any, which parcel of land and improvements are hereinafter collectively referred to as the "Property." NOW THEREFORE, in consideration of the foregoing recital, which is made a part of this Agreement, and the mutual promises, agreements and covenants herein contained, and intending to be legally bound hereby, Seller and Purchaser agree as follows: 1. Sale and Purchase. Subject to the terms and conditions of this Agreement, Seller agrees to sell and convey to Purchaser, and Purchaser agrees to purchase and acquire from Seller, all of Seller's right, title and interest in and to the Property. 2. Title. The Property shall be conveyed to Purchaser by special warranty deed, conveying good and marketable title, free and clear of all liens and encumbrances, except for those set forth in Exhibit "B" attached hereto, and any liens or encumbrances created after the date of this Agreement which have the prior approval of Purchaser. Seller represents and covenants that Seller presently owns, or will have as of Settlement, good and marketable title in and to the Property (subject to the aforesaid) and is, or will at Settlement, be duly empowered to convey same in accordance with this Agreement. Such title to the Property shall be conclusively evidenced by the availability of title insurance issued at reg~lar rates by a reputable title ~,I .j ..~ ~ ..... ,-. "- insurance company authorized to do business in pennsylvania. The cost of any and all such title insurance shall be paid by Pur- chaser. Seller agrees, at its expense, to provide a certified survey of the Property which will form the basis for the deed and which will include metes and bounds descriptions and a ' certification of the total acreage. It is expressly agreed, however, that if Seller is unable to deliver at Settlement the quality of title represented above and required herein, other than as a result of the wilful misconduct of Seller, Purchaser's sole right and remedy shall be to take such title as Seller can deliver without reduction in purchase price or recovery of damages, or to terminate this Agreement by notice to Seller prior to Settlement, whereupon neither party shall have any further liability or obligation to the other hereunder, except that Seller shall be liable to Purchaser for Purchaser's actual and reasonable costs and expenses incurred in pursuing purchase of the Property under this Agreement up to a maximum of Twenty Thousand Dollars ($20,000), less amounts recovered from Seller under any other basis. 3. Settlement. Settlement hereunder shall take place at the law offices of McNees, Wallace & Nurick, located at 100 pine Street, Harrisburg, Pennsylvania, or at such other mutually agreeable location in Pennsylvania, on a date and at a time reasonably acceptable to Seller and Purchaser, and within fifteen (15) days after all conditions under Paragraphs 7 and 8 are satisfied or waived, but in no event later than August 31, 1997 (the "Settlement"). The parties may extend the Settlement date at any time by mutual written agreement and Purchaser shall have the option to extend the time for settlement under this Agreement as provided for in subparagraph 8(k} below. At Settlement, the Price shall be paid and Seller and Purchaser shall execute and deliver all documents, instruments and agreements provided for herein and all others reasonably required to consummate the transactions provided for herein. 4. Possession. Possession of the property shall be delivered to Purchaser at the time of Settlement. Prior to Settlement, Purchaser shall have the right to enter upon the Property at reasonable times, with the prior written consent of Seller, which shall not be unreasonably withheld, for the purpose of making such surveys, soil tests, engineering studies and other investigations as Purchaser may reasonably require. Purchaser shall bear all cost, expense, liability and responsibility for entering upon the Property, and for all actions or inaction thereon by or for Purchaser, its agents, contractors and/or representatives, prior to Settlement hereunder and Purchaser shall promptly repair any and all damage to or affecting the Property caused by same. Purchaser shall indemnify, diligently defend and hold Seller (its partners, - 2 - "" '-'I>'illif=.ili ~..... ~. "~ ~ - ""'""'" agents, contractors and representatives) harmless from and against any and all claims, damages, loss, expenses, costs and liabilities resulting from or arising out of or in connection with Purchaser's entry upon the Property and any and all of the aforesaid action or inaction thereon, regardless of when same occur or when notice thereof is received or given. The indemnification shall be due and payable upon demand. If this Agreement is terminated for any reason, Purchaser shall provide Seller within ten (10) days of termination with copies of all surveys, soil tests and other engineering reports accumulated by or for Purchaser with respect to the Property, without cost or expense to Seller, unless the termination was by Purchaser as a result of Seller's default under this Agreement. 5. Purchase Price. The total purchase price and consideration for the Property shall be Eight Hundred One Thousand Three Hundred Sixty Dollars ($801,360) plus any additional amount payable under (c) below (the "Price"). The Price shall be due and payable as follows: a. The amount of Twenty Thousand Dollars ($20,000) (the "Deposit") shall be paid by Certified or Cashier's check made payable to Seller and delivered to Seller upon execution of this Agreement. This Deposit shall be retained by Seller in a separately designated interest-bearing bank account with the social security number of one of the Purchasers and the Deposit, plus all interest actually earned thereon, shall be applied to the Price at Settlement, or if Settlement does not occur, the Deposit and any interest earned thereon shall be retained by Seller as provided in subparagraph 8(k) below in the case of an extension and shall be held by the Seller in the same account until resolution and payment of all amounts owing to Seller, in the event of a breach by Purchaser, or shall be returned to Purchaser, with any interest thereon actually earned, in the event of termination of this Agreement without breach by Purchaser. Any and all interest shall be kept in the account and added to the Deposit. Seller is not holding the Deposit as an escrow agent or other fiduciary. b. The remaining Seven Hundred Eighty One Thousand Three Hundred Sixty Dollars ($781,360) (less any interest paid to Seller with the Deposit) shall be due and payable in one sum at Settlement and shall be paid by Certified or Cashier's Check made payable to Seller and delivered to Seller at Settlement or by funds wired to Seller's designated account at Settlement, with no wire completed until Bank confirmation to Seller. Payment may be made by wire transfer at Settlement only if Seller is so notified at least two business days prior to Settlement. - 3 - ~ - ~" ~ " ~1Ilf"'-U '0i1l~.,,~1 c. As an additional part of the Price, if the number of units that Purchaser builds or obtains approval to build on the Property exceeds 100, Purchaser shall pay to Seller an amount equal to the additional amount owing by Seller to Silver Spring Township under the agreement with the Township provided for in Section 7(a) below for or with respect to off-site improvements allocated based on estimated additional trip generation attributable to the additional units, up to a maximum of Two Thousand Dollars ($2,000.00). d. All payments shall be made in immediately available federal funds. 6. Adlustments. Real estate taxes, water, sewer and other current lienable charges, if any, shall be apportioned as of the date of Settlement on the basis of the fiscal year or other period of the applicable charging, assessing or taxing body. Subject to paragraph 7(c) herein, Purchaser shall be responsible for any and all benefit assessments and other fees or charges assessed against the Property subsequent to the date of Settlement, or assessed before Settlement but applicable to any period of time after Settlement, including without limitation any and all sewer and water connection fees, except that Seller shall. be responsible for and shall pay all water and sewer assessments, impact fees, and costs of required improvements, assessed as a result of the subdivision of the Bent Creek Business Center and/or the conveyance provided for herein, except EDU charge and connection fees. Purchaser is to pay all recreational fees and assessments, provided, however, Purchaser may contest any and all such recreational fees and assessments by appropriate proceedings and in good faith, but only if such proceedings stay and prevent any collection or execution for collection of same and provided that said proceedings and nonpayment do not result in any lien, restriction or encumbrance, or any other adverse consequence, for any or all of the properties in or constituting the Bent Creek Business Center other than the Property and then only arising after settlement between Seller and Purchaser. As of the date of execution of this Agreement, Seller represents and warrants that it has no notice or actual knowledge of any Assessments, (as defined in paragraph 7(c) herein) and Seller has no actual knowledge that any such Assessment is pending. Purchaser shall pay all filing fees and recording costs at Settlement. 7. Conditions Precedent for Seller. This Agreement, and performance by Seller hereunder, is expressly conditioned upon satisfaction or written waiver by Seller of the following condi- tions: a. Seller shall have obtained prior to Settlement a satisfactory executed agreement with Silver Spring Township regarding off-site improvements and all other necessary - 4 - i;'~~ -, ~~ ~ ,.. :.-~ ~ '"'.......... "-'-'~""' approvals for the sale of the Property pursuant to the terms hereof, if and to the extent not already obtained, with all necessary subdivision plans recorded as required at or before Settlement (subdivision shall be obtained at Seller's sole cost and expense, except costs and expenses attributable to any contemporaneous land use approval sought by Purchaser) . b. Seller shall have acquired good and marketable title (legal or equitable) to the larger tract of real estate that includes the Property subject only to liens and encumbrances satisfactory to Seller and, with respect to the Property, liens and encumbrances permitted in accordance with Paragraph 2 above. c. There are no material assessments (excluding sewer assessments) or other fees or charges assessed against the Property prior to Settlement (collectively the "Assessments") which would be the responsibility of Seller. Same shall be "material" if same in the aggregate exceed the sum of Twenty-Five Thousand Dollars ($25,000.00), net of any portion of such assessment paid by Purchaser. d. There is no material adverse change in the assets, business or financial condition of Purchaser prior to Settlement. Purchaser shall notify Seller within five (5) days, and in all events prior to Settlement, of any and all events or circumstances which may constitute or be reason- ably expected to constitute, alone or in conjunction with other facts or circumstances, or to cause alone or with other facts and circumstances, a material adverse change as described in the preceding sentence. e. All representations of Purchaser herein shall be true and correct in all material respects when made and as of Settlement. Purchaser shall have performed timely all obligations and duties hereunder to be performed by Purchaser at or before Settlement. Except as otherwise provided in this Agreement, upon the failure of any of the foregoing conditions precedent, Seller shall have the absolute right to terminate this Agreement upon written notice to that effect to Purchaser or to waive such condition by settling. If this Agreement is terminated pursuant to this paragraph 7, Seller and Purchaser shall have no further liabilities or obligations hereunder, except that if Seller has terminated only because of failure of condition 7b. above, then Seller shall be liable to Purchaser for Purchaser's actual and reasonable costs and expenses incurred in pursuing purchase of the Property under this Agreement up to a maximum of Twenty Thousand Dollars ($20,000), less amounts recovered from Seller - 5 - . ~ ..-'~~~~~ ~ I "'~'"""""""" '-:ill1__,,,_ under any other basis. Seller and Purchaser agree to cooperate in obtaining, and Seller shall diligently pursue by reasonable efforts any and all actions, things or items necessary to satisfy the conditions under 7a and 7b above, in a timely manner at Seller's sole cost and expense. 8. Conditions Precedent for Purchaser. This Agreement, and performance by Purchaser hereunder, is expressly conditioned upon satisfaction or written waiver by Purchaser of the following conditions at or before Settlement: a. Receipt by Purchaser of reasonably satisfactory evidence that it will receive good and marketable title in accordance with paragraph 2 above, which Purchaser shall diligently pursue beginning within fifteen (15) days after the date hereof and Purchaser must notify Seller of any nonsatisfaction of this condition on or before July 31, 1997; b. Receipt of a survey provided by Seller, disclosing no material encroachments, gaps or other matters which would make the Property different in any material respect than that described in Exhibit "A," attached hereto, and disclosing the location of all utilities, rights-of-way, easements and encroachments on the Property, to the extent known or discoverable with reasonable efforts, which Purchaser shall diligently review and approve or disapprove within fifteen (15) days after receipt; c. Receipt by Purchaser of reasonably satisfactory evidence that the Property is or will in a timely manner be served by water, sewer, storm sewer, gas, telephone, cable television and electric services, which evidence Purchaser shall request from the appropriate parties within fifteen (15) days after the date hereof and Purchaser must notify Seller of any nonsatisfaction of. this condition on or before July 31, 1997; d. Receipt by Purchaser of reasonably satisfactory evidence that there are no Environmental Claims or Materials of Environmental Concern, as such terms are defined in paragraph 10 (d), affecting the Property, including without limitation the presence of hazardous or toxic substances or existing or past failure to comply with any local, state or federal law relating to the Property, which study and report Purchaser shall request within fifteen (15) days after the date hereof and Purchaser must notify Seller of any nonsatisfaction of this condition on or before July 31, 1997; - 6 - ~.- " """- '". , _'l1J!\i .liLlil\~" ." - ~.~ ~' ...- e. All representations of Seller herein shall be true and correct in all material respects on the date hereof and as of Settlement. Seller shall have performed timely all duties and obligations hereunder to be performed by Seller at or before Settlement; f. The Purchaser shall have obtained a legally binding commitment for construction financing for its proposed construction for the intended use of the Property in an amount not less than $1,200,000, providing for interest at a rate not in excess of 10% per annum, compounded daily or less frequently, and otherwise upon terms reasonably satisfactory to Purchaser and Purchaser must notify Seller of any nonsatisfaction of this condition on or before July 31, 1997; g. The Purchaser shall have received an allocation for the Property of sufficient sewage capacity for its currently intended use of the Property, requiring a p,ayment for each Equivalent Dwelling Unit ("EDU") not in excess of $4,200, and public utilities, including water, electricity, and telephone service in reasonably sufficient capacity for the intended use of the Property. Whenever used in this Agreement, the "intended use of the Property" shall mean the development of approximately 100 units (50 buildings) intended for senior housing condominiums as described and indicated in the plans attached hereto as Exhibit "C"; h. Seller shall have demolished and removed the old house upon the Property and will remove any heating fuel tank located therein, as provided for in Paragraph 11 below; i. The Purchaser shall have received soil tests and other examinations performed by or at the direction of the Purchaser revealing that the Property is reasonably satisfactory for the intended use of the Property. Purchaser shall request all such soil tests and other examinations within fifteen (15) days after the date hereof and Purchaser must notify Seller of any nonsatisfaction of this condition on or before July 31, 1997; j. The Property shall not have suffered any material adverse damage or change from flooding, erosion or other acts of nature or Acts of God that would prevent or materially interfere with the intended use of the Property; (k) The Purchaser shall have obtained final approval by the Township of the land use development plan for the intended use of the Property, which shall have been submitted by Purchaser not later than fifteen (15) days after final Township approval of the Plan; provided that if - 7 - ~~ ^.~ ~"~ 'i~illi,-",." the condition in this subparagraph (k) is not satisfied by August 31, 1997, Purchaser may elect to continue this Agreement and defer settlement hereunder to a date not later than November 30, 1997 by giving notice to such effect to Seller on or before August 31, 1997 and agreeing that the Deposit shall be released and paid to Seller upon notice from Purchaser of such extension with the Deposit treated as a payment for such extension, but applied against the Purchase Price as provided herein if settlement does occur pursuant to this Agreement within such extension period; and (I) On or before August 22, 1997, Seller shall have acquired the larger tract so as to satisfy the condition in subparagraph 7(b) above or Seller shall have waived such condition by notice to Purchaser. Except as otherwise provided in this Agreement, upon the failure of any of the foregoing conditions precedent, with notice thereof to Seller within any stated time period (or if none is stated, then by settlement) Purchaser shall have the absolute right to terminate this Agreement prior to Settlement upon written notice to that effect to Seller. If this Agreement is properly terminated pursuant to this paragraph S, Seller and Purchaser shall have no further obligations or liabilities hereunder. Purchaser and Seller both agree to cooperate in obtaining, and Purchaser shall diligently pursue, by reasonable efforts, any and all actions, things or items necessary to satisfy the conditions precedent under Sa through Sd and Sf, Sg and si above, in a timely manner at Purchaser's sole cost and expense. 9. Condition of Prooertv. Subject to paragraphs 2, 10 and 11 hereof, and without waiver of any conditions precedent, Purchaser represents, warrants and agrees that it has inspected and familiarized itself with the Property, making or having made all inspections, studies and surveys Purchaser and its advisors, contractors, and/or representatives deem necessary or appropriate, and, if Settlement occurs, Purchaser accepts the Property "as-is" and "where-is." EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, SELLER HAS NOT, DIRECTLY OR THROUGH OTHERS, MADE ANY REPRESENTATIONS, WARRANTIES OR AGREEMENTS, EXPRESS OR IMPLIED, OF ANY KIND WHATSOEVER, 'CONCERNING THE CONDITION OF THE PROPERTY, THE USABILITY OR SUITABILITY OF THE PROPERTY FOR ANY PARTICULAR PURPOSE OR FOR ANY PURPOSE, OR OTHERWISE ABOUT OR CONCERNING THE PROPERTY, ITS USE OR VALUE, AND, IF SETTLEMENT OCCURS, PURCHASER SPECIFICALLY ACCEPTS ANY AND ALL RISKS THAT PURCHASER MAY NOT BE ABLE, FOR ANY REASON, TO USE THE PROPERTY OR ANY PORTION THEREOF FOR ANY PURPOSE INTENDED OR DESIRED BY PURCHASER. - S - ~~~~" ~~ . ~~ ~. ~- ~ =.~~ ""''''- 10. Environmental Matters. a. Compliance with Laws. To the best of Seller's actual knowledge the Property is in full compliance with the Environmental Laws (as hereinafter defined). Seller has not received any notice that alleges that the Property is not in such full compliance. b. Pendinq Claims. There is no Environmental Claim (as hereinafter defined) pending or threatened against Seller or, to Seller's best actual knowledge, against the Property. c. Environmental Studies. Seller has had prepared on its behalf, by R. E. Wright Associates, a Phase I Study, ("Report") of the Property, dated June, 1996 (REWEI Report 97228-1-1), and Purchaser hereby acknowledges receipt of a copy of that Report. Seller represents and warrants that the Report is the only environmental study, investigation, test, evaluation and analysis prepared by or for Seller with regard to the Property. d. Definitions. (1) "Environmental Claim" as used herein shall mean written notice by any person or entity alleging liability arising out of, based on or resulting from any violation, or alleged violation, of any Environmental Law. (2) "Environmental Laws" as used herein shall mean all federal, state and local laws and regulations relating to pollution or protection of human health from contaminants in the environment or to protecting the environment itself, including without limitation, laws and regulations relating to emissions, ,discharges, releases or threatened releases of Materials of Environmental Concern, or otherwise relating to the use, treatment, storage, disposal, transport or handling of Materials of Environmental Concern. (3) "Materials of Environmental Concern" as used herein shall mean any and all substances which are any of the following: (a) explosives, oil and petroleum products and byproducts, urea formaldehyde, radon, radioactive materials, polychlorinated biphenyls or related or similar materials ("PCBs"), asbestos or material containing asbestos; or (b) defined, designated or listed as a "Hazardous Substance," "Regulated Substance," "Hazardous Material," "Hazardous Waste," "Toxic Waste," "Toxic Material," "Contaminants" or "Industrial Waste," or defined, designated or listed in a similar manner, under the (i) - 9 - ,. ~-".~ ~ ~"~ "- , . .'f""'" Cle9n Water Act, 33 U.S.C. Section 1251 et sea.; (ii) Com~rehensive Environmental Response, Compensation and Lia~ility Act of 1980, 42 U.S.C. Section 9601 et seq.; (iii) Hazardous Materials Transportation Act, 49 U.S.C. Section 180~ etsea.; (iv) Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et sea.; (v) Pennsylvania Solid Waste Management Act, Pa. Stat. Ann. tit. 35 Section 6018.103; (vi) Pennsylvania Clean Streams Law, Pa. Stat. Ann. tit. 35, 691.,1 et sea.; (vii) Pennsylvania Hazardous Substances Site Clean-Up Act, Pa. Stat. Ann. tit. 35, Section 6020.101 et sea.: or (viii) any other Environmental Laws. -- 11. Reoresentations. Warranties and Covenants of Seller. Seller hereby represents, warrants and covenants to and with Purchaser, upon which same has relied, as follows: a. To Seller's knowledge, after Seller's review of the records for Cumberland County, Pennsylvania and the tax records for Silver Spring Township, Cumberland County, Pennsylvania, neither the Property nor any portion thereof has received any special tax assessments of any kind that would result in a recapture of any prior tax savings or reductions as a result of or based on the sale contemplated in this Agreement and/or the intended use of the Property as stated above; b. The Property is, or will on or before November 30, 1997, be served by water and sewer, which lines shall the~ extend to a border of the Property at no cost to Purchaser. To Seller's knowledge, even though there is no "reservation" of EDUs, there should now be sufficient EDUs available for the intended use of the Property. Seller shall use reasonable efforts to cause the applicable utilities companies to extend telephone and electrical lines to the Property on or before such date, at no cost to purchaser, and shall request, at no cost to Seller or Purchaser, that cable television lines be extended to the Property by such date; c. The Property shall, as of Settlement, be in full compliance with all subdivision and land use development plans and all laws, ordinances, rules, regulations, orders and decrees relating thereto. In addition, Seller shall be in compliance with same as to all or any other parts of the Bent Creek Business Center to the extent any such non- compliance by Seller would materially and adversely affect the Property and/or the intended use of the Property; d. Seller has posted, or will as of Settlement have posted, all required bonds securing all improvements to the Bent Creek Business Center as shown on the final subdivision - 10 - " - - " b..~""-.~. ~ ""=1.\,_ and/or land use development plan for same as approved by Silver Spring Township, with all such improvements to be completed by Seller or caused to be completed by Seller (to the extent within Seller's control) in a timely manner, reasonably satisfactory to the requiring authority; e. No part of the Property is or constitutes wet lands or waters of the United States or waters of the Commonwealth of Pennsylvania such as would prevent or materially interfere with the intended use of the Property. f. As of settlement, Purchaser shall have access to the Property for equipment and by September 30, 1997, Purchaser shall have access to the Property by way of a roadway suitable for construction vehicles in all weather. On or before November 30, 1997, Seller shall have constructed a street providing access from the Property to Pennsylvania Route 114, which street shall be constructed on standards as necessary to dedicate same to Silver Spring Township (except for final wearing course layer, to be added later), with a traffic signal installed at such intersection by Seller. Until the road is dedicated to the Township, Seller will maintain the roadway and easement area as needed for construction on Lot 16 and, if same continues after issuance of an occupancy certificate for any building on Lot 16, in a manner consistent with the way that Township maintains its comparable streets and roadways (except that the final wearing course shall, in no event, be required prior to May 31, 1998). Seller shall have also obtained or imposed upon Lot 17 of the Plan an easement for emergency access to Lot 16 in a precise location and upon terms reasonably satisfactory to Seller and Purchaser. All obligations of Seller hereunder to construct, install and/or erect improvements shall be extended to the extent same have been delayed by acts of nature or Acts of God, wars, riots, civil disturbance, labor actions, strikes, boycotts or other forces or factors beyond the reasonable control of Seller. g. No storm water management facilities shown on any subdivision or land use development plan as being located upon the Property will require any maintenance by Purchaser or will same prevent or materially interfere with the intended use of the Property, and to Seller's knowledge no additional storm water management facilities or easements are now expected, except in each case as may be required for storm water management of storm water originating on the Property. h. To Seller's knowledge, there is no fact or condition existing on the Property that is reasonably expected to cause or result in an action or proceeding at - 11 - -~ ,~ ,~.L . ~'~ ~". law or in equity against the Property or any owner thereof or that violat7s any ordinance, law, rule, regulation, order or decree appl~cable to the Property. To Seller's knowledge there is no action, suit or proceeding pending or threatened against or otherwise directly affecting the Property. i. Not later than settlement, Seller shall have demolished and removed the old house located upon the Property, at Seller's cost and expense. In addition, Seller shall have removed any heating fuel tank located therein in compliance with Enviro~mental Laws and remedied any leakage therefrom, up to a max~mum cost to Seller of Ten Thousand Dollars ($10,000) . 12. Restrictive Covenants. The development, use and future conveyance of the Property shall be subject to the restrictions, encumbrances and restrictive covenants in the Protective Cove- nants Agreement, as set forth in Exhibit "D" attached hereto. Purchaser shall execute and deliver to Seller the Protective Covenants Agreement at Settlement. The Protective Covenants shall be recorded and shall run with the land. 13. Realtv Transfer Tax. Purchaser and Seller shall divide equally the payment of any and a~l realty transfer taxes required to paid as a result of the conveyance set forth herein and same shall be paid as and when due, including without limitation any payment at Settlement. 14. Cure Period. Upon determination by either Purchaser or Seller that the conditions precedent to its obligations hereunder as provided in paragraphs 7 and 8, as applicable, have not been satisfied at the applicable time, Purchaser or Seller, as the case may be, must provide the other party with written notification to that effect. The other party then shall have until fifteen (15) days after notice to cause such condition to occur or breach to be cured (the "cure period"). Failure to give such notice shall not excuse the obligations of the party entitled to receive such notice, unless that other party has been materially adversely effected by the failure of such notification. If no notice has been given at or before Settlement, the conditions precedent shall be deemed to have been satisfied or waived in their entirety. If notice pursuant to this paragraph is given and the recipient of the notice is unable to cause such condition to occur or breach to be cured within the cure period, the party giving notice shall have such rights as are provided under this Agreement for breach hereof or a failure of a condition precedent. The foregoing notwithstanding, no cure period shall extend or delay the last possible Settlement date provided for herein and neither party shall be entitled to a cure period for any failure to settle as and when provided herein. - 12 - =~~ ~~~ ~~ ~ . l~ . ~ .....~"'^. 15. Default. Should either party fail to fulfill and perform in any material respect any of its obligations hereunder, and such is not cured during the "cure period," if any, that party shall be in default hereunder. 16. Remedies on Default. In the event of a default by Seller or Purchaser the non-defaulting party shall be entitled to any and all rights and remedies existing at law or in equity, including without limitation, damages and the equitable remedy of specific performance, and all rights and remedies set forth herein or in any agreement, document or instrument executed pursuant hereto. 17. Authorization and Conflicts. Seller represents and warrants to Purchaser that Seller is duly organized and validly existing under the laws of the Commonwealth of Pennsylvania and the execution, delivery and performance under this Agreement and each of the documents, instruments and agreements to be executed hereunder have been duly authorized. Each Purchaser represents and warrants he is an adult individual with full power and authority to enter into and perform under this Agreement. Each of Seller and Purchaser represent and warrant to the other that upon signature this Agreement shall constitute the valid, legal and binding obligation of that party in accordance with the terms of this Agreement. Each further represents and warrants to the other that execution, delivery and performance of this Agreement will not violate or be a breach of any organizational documents, or any contracts, agreements, indentures, documents or instruments or any laws, orders or decrees, binding upon same or pending with respect to the party. 18. Eminent Domain. If, prior to Settlement, all or any material portion of the Property is subject to taking by eminent domain or similar proceedings by any governmental entity having jurisdiction over the Property ("Eminent Domain"), purchaser, at its sole option, exercisable prior to Settlement, may terminate this Agreement by written notice to Seller given within thirty (30) days after notice of the taking or pending taking, whereupon neither party shall have any further liability or obligation to the other hereunder. If Purchaser opts to proceed to Settlement, the parties shall proceed to Settlement without reduction in the Price and Purchaser shall receive the entire award for such taking. As of this date, and again at Settlement, Seller represents and warrants that it has no notice of any Eminent Domain proceeding against the Property and has no reason to believe that a notice of Eminent Domain is forthcoming. 19. Risk of Loss. Risk of loss of the Property shall be borne by Seller until the time of Settlement. If the Property suffers material damage prior to Settlement, either party may terminate this Agreement by written notice to the other given - 13 - -~ """ ",~ - ~~'~" within thirty (30) days after the damage occurs, unless such damage is caused by any act or omission of a party hereto, or any agent, employee, invitee, or designee of same, in which case the non-damaging party shall have the option to terminate or to proceed to Settlement without reduction in the Price and Purchaser shall then receive an assignment of any insurance proceeds which would otherwise be payable to Seller, if any. 20. Brokers. Each party represents and warrants to the other that it has not contracted with or involved any real estate broker, agent or similar person with respect to this Agreement, and that no brokerage commission or like fee is due to anyone in connection with this sale or this Agreement as a result of the actions of that party. Any party violating this representation and warranty shall indemnify, promptly defend and hold the other party harmless from and against any and all costs, liabilities, obligations and expenses, including reasonable attorneys' fees, incurred as a result of or arising out of such violation. 21. Leqal Fees. Each party shall pay its own attorneys' fees and expenses with respect to the negotiation, preparation and performance of this Agreement; provided, however, that in the event that either party shall be in default hereunder the non- defaulting party shall be entitled to recover from, and the defaulting party shall pay, all reasonable attorneys' fees, expert fees and court costs incurred by the non-defaulting party in the enforcement of this Agreement and/or in the pursuance of any rights, remedies or damages hereunder, with such costs and expenses allocated equitably and comparatively between the parties by a court of competent jurisdiction in the event that both parties shall be in default hereunder. 22. Notices. All notices hereunder shall be in writing and shall be given when delivered in person or sent by registered or certified mail, return receipt requested, postage prepaid, addressed to the parties at the addresses set forth below. Either party may change its address for purposes of receiving notice, by notice to the other. If to Seller: Donald H. Mowery, General Partner Ritner Park Associates 625 Hamilton Street Carlisle, PA 17013 If to Purchaser: DD&K, Inc. 1898 North Market Street Elizabethtown, PA 17022 Attn.: David G. Heisey, President - 14 - .,~- 'iWlifJi:U", 23. Miscellaneous. a. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and assigns. Purchaser may not assign this Agreement, or any rights or duties hereunder, without the prior written consent of Seller, which consent may be withheld in Seller's sole discretion; provided, however, that Purchaser may assign Purchaser's rights and interests hereunder to a corporation, partnership or limited liability company formed by or for them for the purpose of developing the Property for the intended use of the Property provided that Purchaser remains fully liable hereunder after such assignment. The obligations and liabilities for performance of Purchaser hereunder shall be joint and several as to David Strong and David Heisey. b. This Agreement shall not be amended, modified or rescinded except by a written agreement signed by Seller and Purchaser. No right, power, remedy or privilege hereunder shall be waived except to the extent expressly set forth in writing signed by the party charged with the waiver. No waiver of one event or breach shall waive any future or further event or breach. c. This Agreement contains the entire agreement and understanding between the parties with regard to the subject matter hereof, and all other representations, undertakings, discussions and/or agreements of any kind, if any, made prior to or contemporaneously with this Agreement, are superseded by the provisions of this Agreement and are hereby made null and void. d. This Agreement shall be construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania (excepting conflict of laws). Each party agrees and consents to venue and jurisdiction only in the Court of Common Pleas for Cumberland County, Pennsylvania, and/or the United States District Court for the Middle District of Pennsylvania, for any and all disputes hereunder or otherwise with respect to the Property or this Agreement. e. If any term or provision or portion thereof of this Agreement, or application thereof to any person or circumstance be held invalid or unenforceable, in whole or in part by a court of competent jurisdiction, the remainder of said term or provision and of this Agreement shall not be affected thereby and shall remain in effect to the fullest extent permitted by law; and, to this end, the parties hereto agree that the terms and provisions of this Agreement are severable. f. Neither party may record this Agreement or any memorandum hereof. Any violation of the preceding sentence - 15 - - - L~L". ~ -~ ' ..l~f shall be of the essence of this Agreement and shall immediately provide Seller with the right to terminate this Agreement, in addition to all other remedies available to Seller. g. Time is hereby declared to be of the essence of each and every provision of this Agreement. h. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement. i. The representations, warranties, covenants and agreements contained herein shall survive the Settlement. j. Headings set forth in this Agreement are for reference only and shall not be used in interpreting or construing this Agreement. The use of the masculine gender shall include the feminine and/or neuter genders, and vice versa, and use of the singular shall include the plural and vice versa. This Agreement shall not be construed against anyone party as. the drafter hereof. k. All Exhibits attached hereto are incorporated herein by reference and are made a part hereof. - 16 - . . """"'~,,; h" . - , IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as of the day and year fist above written. WITNESS: ~L/1, tV~ . WITNESS: iJ ,0/(;;/4 SELLER: RSM ASSOCIATES, L.P. a Pennsylvania limited partnership By: RSM Associates, Inc., Sole Gener Partner By PURCHASER: DD&K, Inc. - 17 - ~ ;ROMI Me NEES ~N'LLSlCE N..R 1 Cl< , , (~(ICm. J J:': '~ '. . - . ~ FIR.~T A~NDMENT TO DD&~. INC. AGREEMENT pF SALIJ( ,/",} 1M,; I TInS FIRST AMENDMENT is made tbist.:Jlb..day o~ 1998, by and between RSM ASSOCIATES, L.P., a Pennsylvania limited partnership (fonnerly known as Rimer Park Associates) ("Seller"), and DD&K, INC., a Pennsylvania corpotation ("PUtchaset"). WHEREAS, Seller and Purchaser entered into a certain Agreement of Sale, dated July 7, 1997 (the · Agreement), pt(lviding for sale and purchase of a certain ttaet or parcel of land in Silver Spring Township, Cumberland. Peuusylvania, consisting of28.62 acres, more or less, and being known as Lot 16 of the Plan of Subdivision of the Bent Cleek Business Center (the .Plan"), which tract or parcel, along with any and all improvements located thereon, is referred to as the "Property"; and WHEREAS, certain delays have been encountered by Seller in connection with the acquisition, subdivision and development of the larger parcel that includes the Property and, as a ~t, Seller and Purchaser have agreed to certain extensions of time and other modifications applicable to the Agreement of Sale, which extensions and modifications are as set forth in this First Amendment. THEREFORE, in consideration of the foregoing recitals, which are made a part hereof; and the mutual promises, agreements and covenants herein contained and those in the aforesaid Agreement of Sale, and intending to be legally bound hereby, the parties hereby amend, modify and supplement the Agreement of Sale as follows: 1. Paragraph 3 shall be amended by deleting the reference to · August 31, 1997" and replacing it with .March 31, 1998. as the last date for settlement. FRO"1 I t'C NEES ~LI=ICE NUR I 0< , , )1, ,Ji ~~lll!. 1 uJ '. ", .~ -,- '~ < , . : . 2. Paragraph 7L sball be amended to provide the "satisfactory executed agreement" shall be with .Silver Spring Township and/or PennDOT regarding the off "site improvements...." . 3. Para&raPh 8 is hereby amended by rcplacin& each reference to .July 31, 1997" with. "March 31, 1998" and Purchaser acknowledges that the conditiODSundcr subparagraphs b. d (except as to house and house site), t; i and k of Paragraph 8 have already been satisfied. In addition, in subpl\[llgraph (l) the refereDCe to . August 22, 1997" shal1 be replaced with "March 31,1998". 4. Paragraph 11, subparagraphb sball be 811lended by deleting the reference to . "November 30, 1997" and replacing it with "August IS, 1998".)>> addition, if the public sewer is not connected and functioning by July 15. 1998, then from. that date lU1til the date same is functioning (not later than August 15, 1998), Seller shall coIl11CCt the sanitary sewer line from the Property to a holding tank(s) and shall have suchtank(s) pumped as required in order that the sanitary sewer system to the Property may be functional for one model located on the Property with working plumbing facilities to be used for showing prospective purchasers (not for . occupation as a residence), but only if and to the extent petmitted by the applicable state and/or local governmental authorities. S. Paragraph 11, subparagraph f shall be amended by deleting the reference regarding a construction vehicle roadway built by .September 30, 1997" and replacing that date with "May 15, 1998" and by deleting the reference in the second sentence to building the street (except the final wearing course layer) by November 30, 1997 and replacing that date with . .September IS, 1998". In the same Sllbparagraph, the reference regarding final wearing course to be installed by "May 31,1998" shall now be replaced with "JUly 31, 1999". -2- FROM I MC NEES WRLLca= I'U'lI Cl< -f ..~-. 7i!!!J)n~ ~t_!l lilt II !r -.r ~"',- , , ,. J ' ... 6. Attached to this First Amendment is the final Covenants, which are Exhibit .D" to the Agreement of Sale. 7. Except to the extent expressly amended above, the Agreement qf Sale is and remain. in full force and effect, as extended. IIld is hereby ratified and affirmed in all partiCUlars and is incorporated herein. IN WITNESS WHEBEOF, the parties hereto have executed this First Amendment to the Agreement of Sale, intending to be legally bound hereby, on the date first set forth above. /jJrT t'(:.~ ~T: SELLER: RSM ASSOCIATES, L.P., a Pcnnsylvauia Limited Partnership By: RSMASSOClATES, INC., Sole General Partner By: DOnald H. Mowery, President . ATIEST: PURCHASER: DD&K, INC. i1(OR~ , Scac By:?r;,aJ.4 Jilt yr ---- . David G. Heisey, President K:\067118106'\1)1)&IKo.3CL -3- "",.,.-., '-'';':'. -,.~..:",-,,,,<.,- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DD&K, INC., Plaintiff No, 00-4875 v, CIVIL TERM R, S, MOWERY & SONS, INC, and RSM ASSOCIATES, L.P" Defendants NOTICE TO PLEAD TO: DD&K, INC" Plaintiff YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER AND COUNTERCLAIM WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOu. McNEES, WALLACE & NURICK By James , Attorney L ,No, 47245 Diane M, Tokarsky Attorney LD, No. 44369 100 Pine Street, P,O, Box 1166 Harrisburg, PA 17108 (717) 237-5441 Attorneys for Defendants Dated: February 6, 2001 ~'~ ~. '0 -.-, ,,,,' ~, ,,_. " ,,-, ~. '.;,-,'0 _..:,~,.;.;,: ;-:_~:"~':~""- '-.;;J~::";i'':~';' -:-~~;;'.,~~"';,,--;;:J,i':;;",,,,:_:-,_ _ V :~G"';'-1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DD&K, INC" Plaintiff No, 00-4875 v, CIVIL TERM R. S, MOWERY & SONS, INC, and RSM ASSOCIATES, L.P" Defendants DEFENDANTS' ANSWER AND NEW MATTER TO PLAINTIFF'S AMENDED COMPLAINT, AND DEFENDANTS' COUNTERCLAIM ANSWER AND NOW, come the Defendants, R. S, Mowery & Sons, Inc, and RSM Associates, L.P, (hereinafter collectively "Defendants") through their counsel, and respond to Plaintiff s Amended Complaint as follows: 1, Denied, After reasonable investigation, Defendants are without sufficient knowledge or information to form a belief as to the truth of paragraph I, Accordingly, the same is denied, 2, Admitted in part and denied in part, By way of further answer, Defendant R. S, Mowery & Sons' principal place of business is at 625 Hamilton Street, Carlisle, Pennsylvania, 3, Admitted. 4, Denied, Paragraph 4 avers conclusions oflaw to which no response is required, Accordingly, the averments of paragraph 4 are denied, To the extent a response is deemed necessary, it is specifically denied that the litigation filed at Docket No, 98-5484 is "related litigation," .'~ ,',--. . ~-~-. "-'.-,>-".-, - ~,~-" -,-a'";_;~,,,'_ ',j~" .,;~';,,~,,'--"'-,;._->-_-" '-', '-";_':.,,~J ~~_ "-_'-~;;'~I 5, Admitted in part and denied in part, It is admitted that an Agreement of Sale was entered into between DD&K and RSM Associates on July 7, 1997, and that such Agreement is attached to the Complaint as Exhibit "A", By way of further answer, said Agreement was subsequently amended, By way of further answer, it is denied that Defendant R, S, Mowery & Sons ever entered into such a contract. By way of further answer, after reasonable investigation answering Defendants are without sufficient knowledge or information to form a belief as to the truth ofthe remaining averments of paragraph 5, Accordingly, said averments are denied and strict proof thereof is demanded at trial. 6, Admitted, 7, Admitted in part and denied in part, It is admitted that the Agreement and the amendments thereto provide for certain representations, warranties and covenants, The Agreement, being a writing, speaks for itself, and must be read in its entirety, Accordingly, Plaintiff s characterizations of said representations and warranties are denied, BREACH OF CONTRACT 8, Denied, It is specifically denied that Defendant R, S, Mowery & Sons has failed to satisfy any representation, warranty or covenant with respect to Plaintiff, Indeed, inasmuch as R. S, Mowery & Sons never entered into a contract with Plaintiff, the averments of paragraph 8 and its subparagraphs are denied in their entirety with respect to Defendant R. S, Mowery, By way of further answer, with respect to Defendant RSM Associates, it is denied that RSM has failed to satisfy representations, warranties and covenants in the Agreement of Sale or amendments thereto, By way of further answer, subparagraphs 8(a) through 8G) are responded to by Defendant RSM as follows: 2 ,--,"-,'0>"0 >, ~w' -''<' , <--e ',o"",-,~,_,~, r. .,-,.~" "d,., '-::'~""i[--'-~''''\t-;.:,,~~ ~- -~_,,,,,-~~~.. ;-_,~,_.:;:.._' '-"-(;S,q;,,~i.'''';.~-., -'";~-..",,,-,--, --,'" <'>_-":i"j (a) Admitted in part and denied in part, It is admitted that paragraph 11 (c) of the July 7, 1997 Agreement contains the quoted language, By way of further answer, said Agreement, and amendments thereto, must be read in their entirety, Any inference that Defendant RSM failed to satisfy this provision is denied, (b) Admitted in part and denied in part, It is admitted that paragraph 11 (b) of Exhibit "A" contains the quoted language, By way of further answer, the Agreement, being a writing, must be read in its entirety, Any inference that Defendant RSM failed to satisfy this provision is denied, (c) Admitted in part and denied in part, It is admitted paragraph 11 (b) was so amended, It is denied such amendment was a breach of a covenant, warranty or representation, (d) Admitted in part and denied in part, It is admitted that as of August 15, 1998, that the sewer service was not approved for operation, This was as a result of Silver Spring Township Sewer Authority's unwillingness to grant such approval as a result of a deed of dedication from the adj acent land owner not being executed. It is denied that Defendants failed to timely resolve issues relating to the easement area through which the sewer line ran, and that RSM had not completed all necessary work to provide sewer service to the property, To the contrary, Defendant performed all such work, and in good faith believed it had an easement in which sewer line was constructed, It is denied that the construction completion date of any of the condominium units built by Plaintiff was in July of 1998, and it is further denied that the Township did not issue occupancy pennits until January 1999 as a result of any actions of the Defendants, To the 3 '~ ","r " ~-" ~-,~ "~" ,c"c .' ~- "" " ,~- " '_.'~O';,.;';l~t,,,~, 'cccc' dill,.;:,'"':," c, cc' >,_, :',;;,-';'i,:' :.>i-:,~,_\; " co;;-';;;">- ,.,-,-,>~;;;. contrary, as of mid-August, 1998, the four units at issue were not completed, and, upon information and belief, were not finally completed until the end of September, Therefore, there was no immediate need for sewer service to the property until, at the earliest, October 1998, By way of further answer, after reasonable investigation, answering Defendants are without sufficient knowledge as to when the Township issued occupancy permits to either admit or deny the remaining averments of paragraph 8( d), Accordingly, the same are denied, By way of further answer, it is denied that any actions of answering Defendants delayed the issuance of the occupancy permits until January 1999, (e) Denied, It is denied that the Pennsylvania Historical and Museum Commission is an agency which "needed to approve the subdivision plan submitted by the Defendants," Rather, the Pennsylvania Historical and Museum Commission must provide a "clearance" to a developer that items of historical significance are not impacted by the proposed development. This "clearance" is required prior to obtaining certain environmental permits, By way of further answer, the term "original subdivision plan" is not sufficiently defined in paragraph 8( e) to either admit or deny the averments pertaining to what was contained on such a plan, Accordingly, said averments are denied. By way of further answer, the clearance provided by the Pennsylvania Historical Museum Commission dealt with the alignment of the sewer line on RSM's property, and was unrelated to the location ofthe sewer line on the adjoining Snyder property, By way of further answer, it is denied that the sewer line on the Snyder property was to be constructed through an existing easement and connect to the existing line that services the Snyder property, Rather, it was understood at the outset of the project that a slightly 4 '_-_'-0"- ,,'-, "'<'.,. ,.-,.-.- ,",,;,~ .-~' ,,1-' "- _ -, _ ',;=_".ti''',;k,~ ,.-"')-;';..~_- ,;..-.- i_ >'''' "',,\,; ,,;~.-i",- ,,~ -,,';"'-, _'-~;'- ,,{~,,-~'k-' ;,-~-;,,:_; ,:c:~--';.._', .~_ '0' <~&."'i';j:1 revised location for the easement may be necessary, and that Craig Bachik ofH, Edward Black & Associates, working on behalf of RSM, would take formal steps to have such an easement recorded, Defendants were aware that a subdivision plan bearing Mr. Snyder's signature had been filed, and thus believed in good faith that the revised easement was fmalized, However, Bachik apparently did not follow through with obtaining Snyder's signature on a deed of dedication and filing same, Without such a deed, the Township would not approve the 'sewer for operations, notwithstanding Defendants' arguments that it had either an express or implied easement, and notwithstanding that it was ready for full operation, Ultimately, a subsequent agreement with Snyder resulted in obtaining the deed, It is further denied that the sewer was "ultimately constructed at a revised location," By way of further answer, after discussions with the Pennsylvania Historical Museum Commission, RSM agreed that the sewer line on the Bent Creek parcel could be moved further away from the creek at their request. By way of further answer, these discussions with the Pennsylvania Historical and Museum Commission are unrelated to the location ofthe sewer line on the Snyder property, and have no relevance whatsoever to any agreement between RSM and DD&K. (f) Denied, It is denied that there was a "revised sewer line location" and it is specifically denied that the sewer line was not constructed in an existing easement. It is further denied that the sewer line was constructed across the Snyder property without the permission ofthe owners of the Snyder property. Indeed, Joe Snyder signed a recorded subdivision plan indicating the new easement across his property, which was the location of the constructed sewer line, By way of further answer paragraph 8( e) above is 5 --~' '" ' '._r,'",,_ __ - ~-.. \;,'" ',"" ""I,, ''', -~'__2w'_,~ ',:.,: -;,~, ' ,',', ";'_'::'",;.i.()"t"~,>,,,\~ """;~":~ti-~,'~';"(:"'~ :,,-,;,;, "',;-c,"),,-;i'::-1J~:;,i,-;;;;',,1,-.' ;,;';':' ~ {~ j,,;';:'>~, incorporated by reference, (g) Denied, It is specifically denied that the sewer line was not constructed in the designated easement on the Snyder property, and it is further denied that in June or July of 1998, four units had been just about completed by DD&K, and that DD&K was actively marketing its properties for sale, To the contrary, as set forth above, the sewer line was constructed in the designated easement (although the deed of dedication was not obtained until October 1998), and the four units at issue were not completed, upon information and belief, until late September 1998, By way of further answer, after reasonable investigation, answering Defendants are without sufficient knowledge as to when DD&K discovered any alleged problems with the sewer line, as to when DD&K visited Silver Spring Township regarding an occupancy inspection, and as to when a Township representative indicated occupancy permits may not be issued until an off-site sewer issue was resolved to either admit or deny such averments, Consequently, the same are denied, and strict proof thereof is demanded at trial. By way of further answer, paragraphs 8( d) and 8( e) are incorporated by reference, (h) Denied, After reasonable investigation, answering Defendants are without sufficient knowledge or information to form a belief as to when the final occupancy permits were issued to either admit or deny said averments, Consequently, said averments are denied. (i) After reasonable investigation, answering Defendants are without sufficient knowledge as to when DD&K opened it models for people to visit, show and purchase, and as to when final occupancy permits were available, to either admit or deny 6 " >'" .,' ,'",',>,",.. """. 1"'0.:';; , ',,';<.,,',-' , ',., --R-",",~j~,,,. '"' ""~o' \i:' ;.,.;!. ~<;, i;.~,",;,;;",,,,,,, "'"""". '.,'"" , "", , ";'; H"" ~, "",C " ~'--'" ",.~",' '. ':"'1 said averments, Consequently, the same are denied, G) Denied, After reasonable investigation, answering Defendants are without sufficient knowledge and information as to whether DD&K could not offer to prospective buyers when occupancy would be available, and as to whether sales were delayed or prospective buyers expressed concern over sewer to either admit or deny said averments, Consequently, the same are denied and strict proofthereof is demanded at trial. 9, Denied, It is specifically denied that "Defendants fmally entered into an agreement with representatives from the Snyder property," Rather, Defendant RSM believed it reached an understanding with Snyder in April of 1996 regarding the easement location which was to carry the sewer service from RSM's property, through the adjoining Snyder property, to the Township force main, and that any required new easement would be properly recorded by Black, The revised easement was in a slightly different location than the existing easement which was put in place when Joseph Snyder or entities which he controlled developed the Silver Spring Commons Shopping Center, and the Township wanted to insure that the ultimate developer of the Bent Creek parcel ofland would be serviced by public sewer. The revised easement location was subsequently placed on the final subdivision plan, which was recorded, and which was signed by Joe Snyder, The sewer was constructed in the revised easement. However, when it ultimately became time to request approval from Silver Spring Township Sewer Authority to operate the line, the Authority would not consent because no deed of dedication had been obtained, This was to be the responsibility of H, Edward Black on behalf of RSM, RSM took the position with the Authority and with Mr. Snyder that the easement had been previously agreed to, and was part of a recorded subdivision plan, and therefore should not 7 . ;":,-"Jc .~> '_'"r., ,,~ "'"'--' ,-" -,. ~"; ,-,,,",,_,'-:m_\ ~ "b ; -r,,;.' ,-~':.'i~':"'~';.<,ji;;~;i -; ,L''';'C~~~b,\<':';~b;'~~,J'- '1";'-'-,':,:'" -' ~_- ---';,,; :;;1;':1 hold up "turning on" the sewer system to Lot 16, However, the Authority would not consent, nor would Mr. Snyder cooperate, Ultimately, in an effort to provide sewer service to the Bent Creek parcel, RSM was forced to negotiate an agreement with Joe Snyder, and an easement was subsequently recorded, 10, Admitted, 11, Admitted. 12, Admitted in part and denied in part, Upon information and belief, it is admitted that DD&K engaged Black in some capacity, Inasmuch as answering Defendants are without knowledge as to the exact scope of that engagement, the remaining averments of paragraph 12 are denied, ]3, Denied, It is denied that DD&K's land development plan could not be "approved" until Defendant RSM's subdivision plan was approved by all authorities required to approve such a plan, To the contrary, DD&K's land development plan could have been approved without such approvals obtained by the Defendants, although it could not have been recorded, 14, Denied, It is specifically denied that any delays Plaintiff mayor may not have suffered with regard to obtaining approval for its development plan and its occupancy permits were caused in any manner by any breach of contract or any action of the Defendants, Indeed, the only contract that exists between Plaintiff and Defendants is an Agreement of Sale, and amendments thereto, between PlaintiffDD&K and Defendant RSM, Answering Defendants were under no obligation whatsoever with respect to DD&K's land development plan and its efforts to obtain occupancy permits, By way of further answer, subparagrpah 14(a) through 8 ", '-, -..,-. .__'C',',.,' , '._,-,. _ .-;;... ;:J.'-' --'-'qJ. ,-'--.{ ",-C\-':';-';:,.';'''''';'''_'h'__,_':__'c_' ,_;'-'~;ij;,,~j';\i-',),~,,!;:;;-,:;::;'_,J~f,~.~-,;i:i,~-:~~_;J_",;--" l4(d) are responded to as follows: (a) Denied, It is specifically denied that Defendants ever failed to provide information requested by Black in a timely manner, To the contrary, any information requested by Black was always provided by Defendants in a timely manner. By way of further answer, to the extent Defendants had any obligation whatsoever to Black, they existed pursuant to Defendants' contractual relationship with Black, and are completely and wholly unrelated to any agreement between DD&K and Black. (b) Denied, It is specifically denied that Defendants failed in any way to fully cooperate with Black in the processing of any plan, By way of further answer, any duty which Defendants had to cooperate with Black was solely a part of Defendants' contractual relationship with Black, and is wholly unrelated to any contractual agreement between DD&K and Black, Moreover, there is nothing in the contractual arrangement between DD&K and Defendant RSM which even remotely suggests such a contractual duty, (c) Denied, It is specifically denied that Defendants ever failed to adequately or timely review the work product of Black during the course of the preparation of the plans, By way of further answer, to the extent Defendants had any duty whatsoever with respect to Black's plans, they were solely as a result of Defendants' contractual relationship with Black, and are wholly unrelated to DD&K's contract with Black, Moreover, there is nothing in the contractual arrangement between DD&K and Defendant RSM which even remotely suggests such a contractual duty, (d) Denied, It is specifically denied that Defendants committed any other 9 , - " (~,,:' ~L' H ."- - .-- -'.S"-,'Z.--' '''<--,~,-;, -,,'.,;;';; -~,,",,:~<;;-, 1"" ;co,.---", ~_; --:',-ic '-'i,~:""-,,,l" ,,;;,;\;:~;~-~.;-,,- d';' '-',;'.',-' breach of contract, or acts of commission or omission for which Plaintiff is entitled to raise a claim, It is further denied that Plaintiff has the ability to reserve its rights to raise additional claims which may be determined during the course of discovery, 15. Denied, It is specifically denied that Defendants breached the contract or failed to perform any contractual obligations or otherwise that it was required to perform, It is further denied that any such alleged breaches were the direct proximate and legal cause for delays and losses allegedly sustained by Plaintiff, By way of further answer, paragraphs 1-14 above are incorporated by reference, 16, Denied, It is specifically denied that Defendants are legally responsible for any alleged damages suffered by Plaintiff, It is further denied that the damages claimed in paragraphs 16(a) through l6(d) are legally recoverable under any circumstances, By way of further answer, after reasonable investigation, answering Defendants are without sufficient knowledge or information to form a belief as to the remaining averments in paragraphs l6(a) through l6(d) to either admit or deny said averments, Consequently, the same are denied. DEFENDANTS' NEW MATTER AND COUNTERCLAIM NEW MATTER 17, Paragraphs 1-16 above are hereby incorporated by reference as if fully set forth, 18, Plaintiffs Complaint fails to state a cause of action for which relief can be granted, 19, Plaintiffs damages are not recoverable because they are purely speculative, 20, Plaintiff cannot recover damages because it failed to mitigate its damages, 21. Plaintiff is not entitled to any damages for the alleged breaches of contract 10 "0,'<\'''--'''-- ;';"',,~,;, - >"'"-":~,_:-,.-, ,\",,"'. '":-,..,~'- because the actions of which it complains are unrelated to its contractual agreement with Defendants, 22, Defendant R. S, Mowery & Sons rnc, has no contractual agreement with DD&K, rnc, of any sort, 23, The only agreement which exists between PlaintiffDD&K and RSM Associates is an Agreement of Sale dated July 7, 1997, as amended April 15 , 1998, and a Settlement Memorandum and Agreement dated April 15, 1998 (see Counterclaim below), 24, Accordingly, DD&K's claims against R. S, Mowery & Sons fail to state a claim for which relief can be granted, 25, Defendant RSM has not breached any of the terms of the Agreement of Sale, as amended, 26, With regard to the representation in the Agreement of Sale that RSM would insure that Lot 16 was "served by sewer" by August 15, '1998, RSM took all steps within its control to have such service occur, and indeed, construction of the line was complete and RSM was merely awaiting formal permission from Silver Spring Township Authority to operate the system, 27, To the extent that the sewer system could not become operational as of August 15, 1998, it was as a result of the actions ofthird parties beyond the control of RSM, and constituted a force majeure which excused contract performance, 28, To the extent that Lot 16 is not deemed to have been served by sewer by August 15, 1998, there was no impact on such lack of service to DD&K until, at the earliest, late September 1998, 29. RSM was not a party nor a third party beneficiary to DD&K's contract with H, 11 ...,..;' . ".- .". '",c';,',-- " /-,",-, " "~"" .".,"hh.-', ',' ,,' -',:""",,__ ~" :;-'-':l_ ,'-;:,.~.'c.:-:;~:<;"'.,-:';.;,.,,,-,, ,::,_, ,--,,~ S, )";:"''''.'c~ - ~,:-:" -:'i;"2~~""",,,i.-;;<-'-_'-__- , ',,..0).; -,',J _"h<';;<1 Edward Black & Associates. 30, DD&K was not a party nor a third party beneficiary to RSM's contract with H, Edward Black & Associates, 31, All claims raised by DD&K with respect to wither Defendants' actions allegedly impacting DD&K's contract with Black, or Defendants' actions allegedly impacting Defendants; contract with Black, fail to state a claim for which relief can be granted, WHEREFORE, Defendants respectfully request that Plaintiffs claim be dismissed and that judgment be granted in favor of Defendants, COUNTERCLAIM RSM ASSOCIATES v. DD&K 32, Paragraphs 1-31 above are hereby incorporated by reference, 33, On or about April 15, 1998, RSM and DD&K entered into a "Settlement Memorandum and Agreement," a copy of which is attached hereto as Exhibit "A." 34, As part ofthe Settlement Memorandum and Agreement, RSM agreed to construct a sewer line on the Bent Creek property which would serve, among other lands, Lot 16, 35, Paragraph 5 of the Settlement Agreement provided as follows: Concerning installation of the sewer line, the location of which is shown on approved plans, and on which location the parties agree and about which they acknowledge being fully familiar, RSM shall install said line in accordance with approved plans and construction techniques, The cost thereof shall be paid two-thirds (2/3) by RSM and one-third (113) by DD&K with DD&K's share ofthe cost in any event not to exceed the sum of Fifteen Thousand Dollars ($15,000), 36, Pursuant to the agreement RSM proceeded to construct the sewer line on its property, 12 .' '~:_" ."_"' ",'.---h ,,' , .',-~ ~, ';.- -~,.~, --",-,,'.--'. ">-"-''''_.. , ,'-, -- '8-"--~'" ,';,:,<:,~:o. -.. ..;;;" '':-_',~'' <J' .;{~ o'j.,},..k~ C.~,,,,~,,,,:_;<,- ',;;'-~--/:~_-;,'",Y;_-<, _:',c ;"/G_;,~1 37, The total cost ofthe sewer line was in excess of Fifty Thousand Dollars ($50,000), 38, Accordingly, DD&K's share of the cost was (Fifteen Thousand Dollars) ($15,000) which DD&K has failed to pay to date, 39, DD&K's failure to pay its share of the sewer line costs constitutes a breach of contract for which RSM is entitled to recovery, WHEREFORE, Counterclaimant RSM Associates respectfully requests this Court enter judgment in its favor and against DD&K in the amount of Fifteen Thousand Dollars ($15,000) plus interest, costs and such other relief as this Court may deem appropriate, Respectfully submitted, McNEES, WALLACE & NURICK By ~~jK~ Attorney l.D, No, 47245 Diane M, Tokarsky Attorney l.D. No, 44369 100 Pine Street - p, O. Box 1166 Harrisburg, P A 171 08-1166 (717) 232-8000 Attorneys for Plaintiffs Dated: February 6, 2001 13 ,y,n.;- ,<'"''-'' VERIFICATION Subject to the penalties of 18 Pa, C,S,A. 94904 relating to unsworn falsification to authorities, I hereby certify that I am Donald H, Mowery, President ofR. S, Mowery & Sons, Inc" and that the facts set forth in the foregoing document are true and correct to the best of my information and belief, Q~~~:;'d- Dated: " '".-',-:0;'-- ,.-~ - "',-~'- -~ he,__ ; - ^ -"'~-" _i",.' ,,"'", 'o..l'-d-:-'~_-;; -cw.,_ -"i>,,,:_~~,- ".L'___" -hiT.'; 1>, ,~t-,~"". O,_J;;;':~" ~.-,<,,,i_i~-,,;'~-';;~i~~~;' _ _ _'" - ,'>,';'-1 t.l . . CERTIFICATE OF SERVICE I, the undersigned, hereby certifY that on this 6th day of February, 2001, a true and correct copy of the foregoing document was served via United States Mail, First Class, postage prepaid, upon the following individual: Jeffrey S, Shank, Esquire John M, Smith, Esquire GINGRICH, SMITH, KLINGENSMITH & DOLAN 222 South Market Street - Suite 20 I Elizabethtown, P A 17022 14 _.'... '_"'. . n"_ ~'.: ~.~. _ _, .".,~."",=~__",','~,,~""__ " -"~"'i i I i IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLV ANIA CIVIL ACTION -LAW DD&K, INC., Plaintiff vs R.S. MOWERY & SONS, INC, and RSM ASSOCIATES, L.P, Defendants ) ) ) ) ) ) ) ) No, 00 -.i./hS PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY: C()t(~ Please issue a Writ of Summons against the above-named Defendants at the following addresses: R.S, Mowery & Sons, Inc, 625 Hamilton Street Carlisle, PA 17013 Date: 7/1/0tJ By: RSM Associates, L.P. 625 Hamilton Street Carlisle, P A 17013 Respectfully submitted, .I GINGRICH, SMITH, KLINGENSMITH DOLAN John M, ith, Esquire, ID #19520 Attome for Plaintiff 222 South Market Street, Suite 201 Elizabethtown, P A 17022 (717) 367-1370 ;r~' ~..~ i:i.uialld:.. '_~'"'_ '."_'.. Co- '_"'~_'" - dO;"" ~-,,-" (':) l' ~ ?fl ~ it !'1 (I), 8 (5 . . tv 8 a ...0 ~ 0 C' () . C 0 -'('1 ~ ~ , s: -aOJ - e f/) nl fTj I:;:;:: _n. ~ Z:r.l , ..J:: p: ZC ;';,rn (j) j-~ <::> - ; ,; ~_. "I ~ ;=:;:2' i', ):, ;;...-C; . .-- ~ ',--" J- j> ::E? -c, ;"':-'q ZD ~"'-" '-,,-;';(-"5 ~C} W Onl Pc Z (;:) ',' =< :0 '.0 --< -~ '"- ,,, <-"~ ,--- ~~ ~, - ~- "-, - T -," ~. ~ ~, 'I ~1il~0 . ' . Commonwealth of Pennsylvania County of Cumberland DD&K, Inc. vs. R.S. Mowery & Sons, Inc. 625 Hamilton Street Carlisle, PA 17013 Court of Common Pleas RSM Associates, L.P. 625 Hamilton Street Carlisle, PA 17013 No. 00-4875 Civil Term ------------------------------------- 19____ In mm _~~Y_~L?:\.s:_t!QD___:: _~~_____________m To __E,S_~J::lowery-.LSOllii~_r=L_and_RSM..Associates, L. P . Yon are hereby notified that ._----~~~-~[-~~~:_------------------------------,------------------------------------------------ the Plaintiff ha S commenced an action in ______Ciyj.J._~~~:bQ[l___:_W~____________h__hh________ against you which you are required to defend or a default judgment may be entered against you, (SEAL) Curtis R. Long Prothonotary Date ____~~~J[~_!9J__~Q9_~_________ 19____ ~--2L-???~ Depu:-!f{. '-~"''!tL',j,,,,,,,,*;'B,>-.1;Y'.;:;-i.''i.lIiiilibl1!l@/lI~@!'I;!,,,,);!<,~',''";':~"~;,;~,6'"Aiii;@\>i~~,*_i!!i!i.I..& "" -".-"IlI!<- -,~it =. ,< - .-. '~Ilfil~ 1I't, H--.Jo;NG:l<-< I ("le":O :;0 ~ I g . f-'f-'N~ 0 I P> NUl, o --.Jf-"N S I 'iU1;S:Ul '" , . I N G:l I ~r ~. ~ '0 ,,*,WP>Ul:O;s: In - '0 O'\O"'OH If-" lD~8i 'I I--' -..J (l) ~ () . I~ H '... "'lrtrt::r1 If-'- (jJ ::> 100 U1f-'::r::r- Ul If-' r 0 '--.J Nwrt ~ I:t> rt f-"~ IU1 Oc3~;;r~rt ;;lOP> i:', 10 ::> rt In 'iH::r Irt (I) '" ,f-" !il - @~- 'f-" f-'UlUl ,~ '0 --.J rt . Ul 'f-" a: >ort- 0; I::> 0>1 0 If-' ~: :t> Ul , f-'(I)I:""'::> !~ Ul ~..o , I w(l). [f.l I f-'rt . I rt>o- I --.J'iH ii ... I~ I 0(1)2: == H I I N(I) G:l ::> , I Nrt~ , 0 , , I , I I ~ , I Ul I P> - I I ~ I C H I B. I ~~ I , I I , I (I) I , '" N ::;8 ~ , '. . SHERIFF'S RETURN - REGULAR . L CASE NO: 2000-04875 P . COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND DD&K INC VS MOWERY R S & SONS INC ET AL CPL. TIMOTHY REITZ , Sheriff or Deputy Sheriff of Cumberland County, pensylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon RSM ASSOCIATES L P the DEFENDANT , at 1322:00 HOURS, on the 14th day of July 2000 at 625 HAMILTON STREET CARLISLE, PA 17013 by handing to SHERRY SENNETT, RECEPTIONIST AND ADULT IN CHARGE a true and attested copy of WRIT OF SUMMONS together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 6.00 .00 .00 10.00 .00 16.00 So An?~~ R. Thomas Kline 07/17/2000 GINGRICH SMITH Sworn and Subscribed to before By: me this 1...0 day of ~t,~~ A.D. _ P;ot on :r7' I -%- , " ,,- .---,-- " SHERIFF'S RETURN - REGULAR .' " ~ CASE NO: 2000-04875 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND DD&K INC VS MOWERY R S & SONS INC ET AL J. MICHAEL ICKES , Sheriff or Deputy Sheriff of Cumberland County, Pensylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon MOWERY R S & SONS INC the DEFENDANT , at 1540:00 HOURS, on the 13th day of July , 2000 at 625 HAMILTON STREET CARLISLE, PA 17013 by handing to TOM MAC IVOR, CONTROLLER AND ADULT IN CHARGE a true and attested copy of WRIT OF SUMMONS together with and at the same time directing His attention to the contents thereof, Sheriff's Costs: Docketing Service Affidavit Surcharge 18.00 3,10 ,00 10.00 ,00 31.10 So Answers: ~~~ R. Thomas Kline 07/14/2000 GINGRICH SMITH Sworn and Subscribed to before By: me this ;'0 day of :J~ :WOO A.D. f J t!ot~~r I ~ 0-'" ",-'_.,:'-",._,,". ,.-, <e'",,_ --;"-"-- -,,:,~'''--;-'' "' - ,--~. ,'," ~",,'_:;-" -- -- .; --' ';",:~,"'f< "'" '- ",',---<,--,',:';' ,',;,., --, ,Lei' ',;-- "";;',"''h:; - ~; :1 II i, i! il Ii 11 Ii I, !~ Ii :! 'I !I " ~ I il II II Ii il !! !i ~ !! I !: '; ~ II II h ]1 " II I ! I I , I I Ii '1 ii II I il Ii !i II I ! , i ; DD&K, INC., Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v, : NO, 00-4875 Civil Term R.S. MOWERY & SONS, INC, and RSM ASSOCIATES, L.P" Defendants : CIVIL ACTION . LAW RULE TO: DD&K, INC., Plaintiff JOHN M, SMITH, Esquire, its attorney YOU ARE DIRECTED, pursuant to Pa.R.Civ,P, No, 1037(a), to file a Complaint against Defendants in the above-captioned matter within twenty days from the date of service of this Rule. ~/^t/oo ly(]~~ k~ f Prothonotary --"-" --,~ "-'--'--'-; -'-''''-.: -, .'.- .0.'-'_-' '_'_ . ;"--,<';,,, .',-,".,,-" ~--'.",~ .--,'.<- --,>";. '_'~a -, C;'j!J !; , l I' ~ ' :1 '!~ " !j l Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA II ;f " :1 DD&K, INC., v, : NO, 00-4875 Civil Term II ,}, R,S, MOWERY & SONS, INC, and RSM ASSOCIATES, L.P" Defendants : CIVIL ACTION - LAW PRAECIPE FOR RULE TO FILE COMPLAINT [ I! II TO: Prothonotary Issue a Rule upon Plaintiff to file a Complaint against Defendants within twenty days E: \1 !~ j~ I I: I from service hereof, " I} :~ McNEES, WALLACE & NURICK By-ifJift ames W. u Atty LD, 0, 47245 100 Pine Street P,O, Box 1166 Harrisburg, PA 17108 (717)232-8000 Attorneys for Defendants .,;~ "~~ ,-, ,," , , ..' , . H' '. ~~ , ">-" -'.' '.,,---,,;, . . . "'C' " ",,-, . . _J :'~'-- j 'I f'j [1 I' i:.i i-j l~ j Date: August ') , 2000 i,,'] 1;1 kl U ;I u II 1.-, !I II I II II II I "1 !I II [:1 ,1 --;.j 11 II II ij II i1 11 I' :1 I' 01 '. ,. ~,< !:,I I' II Ii I' Ii 11 ,I 'I I, I' J 11 II II I' 11 'j , CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing Praecipe was served by regular, first-class D,S, Mail, postage prepaid, upon the following: John M, Smith, Esquire Gingrich, Smith, Klingensmith & Dolan 222 South Market Street Elizabethtown, P A 17022 '-.. . >, -'., "'< '-,",-,""'ob "--.'" r -- .... .. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION - LAW DD&K, INC" Plaintiff No, 00-4875 v, CIVIL TERM R. S, MOWERY & SONS, INC, and RSM ASSOCIATES, L.P., Defendants PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes Defendants, R. S, Mowery & Sons, Inc. and RSM Associates, L.P., by and through their attorneys, McNees, Wallace & Nurick, and file the following Preliminary Objections to Plaintiffs Complaint. Demurrer to Count II 1. This action was commenced by the filing of a Writ of Summons by DD&K, Inc" in August 2000. 2, Ultimately, on or about September 20,2000, Plaintiff filed a Complaint against Defendants R, S. Mowery & Sons, Inc" and RSM Associates, L.P, (hereinafter "RSM"), 3, Plaintiff s Complaint consists of two counts: a breach of contract claim and a negligence claim. 4. Plaintiffs negligence claim against RSM seeks only damages for alleged economic loss, 5. Count II of Plaintiffs Complaint is barred by the economic loss doctrine, . '", --,<~; - ":JLI f'" . ~j . '.,' ."_.,_ ,0,"-,<, ~ -. -- ;.. .. 6. Accordingly, Count II of Plaintiff's Complaint fails to state a cause of action for which relief can be granted, and therefore, should be dismissed, WHEREFORE, Defendants' respectfully request that their preliminary objection to Count II be sustained. Respectfully submitted, McNEES, W ALLAC ~J By James W. u Attorney J.D. No, 47245 Diane M, Tokarsky Attorney J.D. No, 44369 100 Pine Street - p, O. Box 1166 lIanisburg,PA 17108-1166 (717) 232-8000 Attorneys for Plaintiffs Dated: October 26, 2000 .2- ';-:i'-' . .-1 ii , i! , , :1 il ",--' ~ 4--' "... .... CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on this 26th of October, 2000, a true and correct copy of the foregoing document was served via United States Mail, First Class, postage prepaid, upon the following individual: Jeffrey S, Shank, Esquire John M, Smith, Esquire GINGRICH, SMITH, KLINGENSMITH & DOLAN 222 South Market Street - Suite 201 Elizabethtown, P A 17022 A), ''''''_......~~''.~-~ ~- ~ "~~ ~ '" -,,~~, "- " " . .~ iA .. SHERIFF'S RETURN - OUT OF COUNTY t CASE NO: 2000-04875 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND DD&K INC VS MOWERY R S & SONS INC ET AL 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 ADD'TL DEFEND , to wit: H EDWARD BLACK & ASSOCIATES PC but was unable to locate Them in his bailiwick, He therefore deputized the sheriff of DAUPHIN County, Pennsylvania, to serve the within WRIT OF SUMMONS/ADDL' DEF On February 8th, 2001 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: Docketing Out of County Surcharge Dep, Dauphin Co 18.00 9.00 10.00 29.25 .00 66.25 02/08/2001 MCNEES, WALLACE ~~ R Thomas Kli e Sheriff of Cumberland County & NURICK Sworn and subscribed to before me this /.2 1& day of J'~ :kt; I A.D. ~ Q. .~ pro.thono :J':7 "'~~ - ~ ll.dllill -~.~ ~ -" ,-. . f In The Court of Common Pleas of Cumberland County, Pennsylvania D D & K, Inc. VS. R.S. Mowery & Sons, Inc., et. al. Serve: H. Edward Black & Associates No. 00-4875 Civil P.C. hereby deputize the Sheriff of Dauphin County to execute this Writ, this ','. 1 ::;.: !~ I I' 1'- !';'; Now, 1/19/01 ,20 0 () , I, SHERIFF OF CUMBERLAND COUNTY, PA, do deputation being made at the request and risk Qfthe Plaintiff, " ~~~-t:~-t SheriffofCmnberland County, PA !~ :: i,. ,; I' I~- .- ~ 'i! i,~~': Affidavit of Service Now , ,20_, at o'clock M, served the Ii; ei I,' , , within i,~ Ii:, , upon ('--~ ,~.. at by handing to ~; r' ,-, a copy of the original t' I'; I and made known to the contents thereof , , So answers, I " , fJ j: Sheriff of County, PA 20 '- COSTS SERVICE MILEAGE AFFIDAVIT $ Sworn and subscribed before me this _ day of $ " "~"~ c. -.;; " - ~ ,. -~, .. @iiite of tlyc ~4criff . William T Tully Solicitor Ralph G, McAllister Chief Deputy Michael W, Rinehart Assistant ChiefDeputy Mary Jane Snyder Real Estate Deputy Dauphin County Harrisburg, Pennsylvania 171 0 1 ph: (717) 255-2660 fax: (717) 255-2889 Jack Lotwick Sheriff Commonwealth of Pennsylvania R.S. MOWERY & SONS INC vs County of Dauphin H EDWARD BLACK & ASSOC Sheriff's Return No. 0256-T - -2001 OTHER COUNTY NO. 00-4875 AND NOW: January 31, 2001 at 1:30PM served the within CIVIL ACTION COMPLAINT upon H EDWARD BLACK & ASSOC by personally handing to DONNA REIDELL, RECEPTIONIST 1 true attested copy (ies) of the original CIVIL ACTION COMPLAINT and making known to him/her the contents thereof at 2403 NORTH FRONT ST. HBG, PA 17110-0000 c!-. M~) So Answers, JR~ She~ ;o;ntY'ja., By /~ Deputy Sheriff Sworn and subscribed to before me this 1ST day of FEBRUARY, 2001 PROTHONOTARY Sheriff's Costs: $29.25 PD 01/30/2001 RCPT NO 145823 HOPKINS ..~- -\,: Cumberland County, ss: The Commonwealth of Pennsylvania to H. Edward Black & Associates, P.C. (Name of AddiJtionl<1 Defendant) You are notified that R.S. Mowery & Sons, Inc. and RSM Associates. L.P. (Name (~)of Defendant (s) ) has (have) joined you as an additional defendant in this action, which you are re- quired to defend. Date ""nn,,"Y 1 h, ?nm C'.nr't-;q. R TimtJ lIrot!Ironatary ~,ao~p 2:Z:;CT2~ S- (SEAL) H. Edward Black & Associates, P.C. 2403 North Front Street Harrisburg, PA 17110 , ~"""" """ 'LIi"~'~-' [" .dillV"~~- ~'''-' - ,~.J,.~;. " ,_ '~ ....' " ",", " ^' Ho..Ji:Ii'OI-'C, i:Ii ~ 1 . I-'jlI. o~ > . tlo..J"IOa . I Ii' 0 ~ i NI-"~ '0 Ul "**,,WCIl 1-'-, 0 NO"><~:;: g~ IUl "" I ~ CD. R o..Jco I-' NacO I-'Ul?<\ ~ ~ H::>- 0.. 0'1 rt C lllO O'Ilirt ~ ;<:J iE N ~~ (") Ul IT ?<\ (") I-' t'"'..... o..J "" t-< ~ I-' 00 ~ a '0 co ;.- . t>1Z Ul R ... ~a e: ~ a. ;;! 0 .. 0> e. .~ Ul 0 ~ ;.- >z t - ~ ~ '0 r ~ . J (") Ii' ~ . :;(1 ... <<q"- , , IN TIlE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DD&K, INC., Plaintiff vs ) ) ) ) ) ) ) ) No. 00-4875 Civil Term R.S. MOWERY & SONS, INC, and RSM ASSOCIATES, L.P, Defendants ANSWER TO NEW MATTER AND COUNTERCLAIM AND NOW, comes the Plaintiff, DD&K, mc" by and through their counsel, and respectfully answer Defendant's New Matter and Counterclaim as follows: 17. No response required. 18, Denied. The allegation contained in paragraph 18 is a conclusion oflaw to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure and the allegation is therefore denied. 19, Denied, The allegation contained in paragraph 19 is a conclusion oflaw to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure and the allegation is therefore denied, 20. Denied. The allegation contained in paragraph 20 is a conclusion oflaw to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure and the allegation is therefore denied, By way of further answer, it is specifically denied Plaintiffs has failed to mitigate damages, To the contrary, Plaintiff took all reasonable steps as outlined in its Complaint to mitigate its damages upon learning occupancy permits would not issue until the off-site sewer problem, as set forth in the Complaint was resolved, 21. Denied. The allegation contained in paragraph 21 is a conclusion oflaw to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure and the allegation is therefore denied, By way of further answer, as a direct result of sewer service not being provided by the agreed date of August 15, 1998, Silver Spring Township would not issue occupancy pennits for DD&K's constructed units until January 1999, well beyond the July 1998 construction completion date of at least four (4) condominium units because Defendants failed, to the satisfaction of Silver Spring Township, to timely resolve issues related to an easement area through which the sewer line ran. 22. Denied, The allegation contained in paragraph 22 is a conclusion oflaw to which no , + j 'i ;\ lJ [ ~ responsive pleading is required under the Peunsylvania Rules of Civil Procedure and the allegation is therefore denied, 23, Admitted, 24. Denied, The allegation contained in paragraph 24 is a conclusion oflaw to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure and the allegation is therefore denied, 25. Denied. The allegation contained in paragraph 25 is a conclusion oflaw to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure and the allegation is therefore denied, 26, Denied. It is specifically denied RSM took all steps within its control to secure sewer service, To the contrary, sewer service was not provided by the agreed date of August 15, 1998. While a sewer line had in fact been installed by Defendant, Silver Spring Township would not issue occupancy permits until January 1999 for DD&K's constructed units, well after the July 1998 , , ,-, ~-,- ,._.'.0" _,~,,_ ,~.- '" -.~.~" "'_-w'_',^",~,.H"__-'.5ri:'_"'"k;-'_' --""'T~'--""""'~'>'''"~''''"'''-'"~''''_~~,," -~--. '-'''''''i;! construction completion date because Defendants failed, to the satisfaction of Silver Spring Township to timely resolve issues related to an easement area through which the sewer line ran, As a result, sewer service was not provided to Plaintiff by Defendant RSM as agreed, 27. Denied. The allegation contained in paragraph 27 is a conclusion oflaw to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure and the allegation is therefore denied, 28, Denied and to the contraIy, Plaintiffs had completed and readied for sale at least four (4) condominium units for which occupancy permits would not issue as a result of the sewer line problems set forth in Plaintiffs Complaint. 29, Denied, The allegation contained in paragraph 29 is a conclusion oflaw to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure and the allegation is therefore denied, 30, Denied, The allegation contained in paragraph 30 is a conclusion oflaw to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure and the allegation is therefore denied, 31. Denied. The allegation contained in paragraph 31 is a conclusion oflaw to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure and the allegation is therefore denied, WHEREFORE, Plaintiff respectfully requests judgment be entered pursuant to Plaintiffs Complaint. ~- -. .'~' ~ - . ~==.,,= ~-,,-,~"~. -,,< 'r ANSWER TO COUNTERCLAIM It 32, No response required. 33. Admitted, 34, Admitted, 35, Admitted, i' i~ , 36, Admitted. iH 37, Denied, After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth or accuracy as to the allegations set forth in this paragraph, I,:: !i I:': ~ !: I',: 11 Ii" !;i and therefore, said allegation is denied and moreover, the means of proof of the allegation set forth is within the exclusive control of the Defendants and strict proof is demanded, 38, It is admitted DD&K has failed to pay any share of the cost of the sewer line ~: i construction, By way of further answer, it is specifically denied DD&K is obligated to pay pursuant :i i Ii to the agreement as a result of the breaches of contract set forth in Plaintiffs Complaint. Strict proof that DD&K is obligated to pay is demanded at the time of any hearing or trial, 39, Denied, The allegation contained in paragraph 39 is a conclusion oflaw to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure and the allegation is therefore denied. < - ~,~ ,,,,,, '_w - . ~~ "," ~" -,'<~ <, --^ . -. "-,,--''0' _"~O'_ .' _ ,n.. "". , "" -il ,j 'i ~ iij :1 " I " ,I ')j [-j ;1 I;i ~I 11 :'1 'I 'I "i ;,1 ;'j I 1 'I 'Jj ;1 ;.1 "i " .i 1 ;1 'I (j 'I tl ;j I"~ d I il " c' "J ~j 'il .,] \i I Ii q " I' il ~ ~ ! I, II I ,I l I I i WHEREFORE, the Plaintiff, DD&K, Inc., respectfully stands by its Complaint and requests judgment be entered thereon. Respectfully submitted, Date:J/81o; , MIT ,KLINGENSMITH & DOLAN hn M, mith, Esquire, ill #19520 Jeffrey S, Shank, Esquire, ill #74471 Attorney for Plaintiff 222 South Market Street, Suite 201 Elizabethtown, P A 17022 (717) 367-1370 -~ ' - . - -. - < --~~".., . . VERIFICATION I, David G, Heisey, President ofDD&K, Inc., verify that the statements made in the foregoing Answer to New Matter and Counterclaim are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S, Section 4904 relating to unsworn falsification to authorities, Date: DD&K, Ine, By E;;;<;:;f.;-,p<~d c---;} " ~ r,- ~; [ ~1 r;! ~I .11 ~~ l ~1 11 ~I 11 I ;i Ii " ~:i ;!1 ill Iii II II ~ ! ;1 [I ~ ~ I , _ _ ." < _c.~. . ..','.,.,., -'-"-""<-," -,~,~,..,~.~ - ", ~.,.<<"' --"~--;"=,,",,,..,.' '-~-' . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW DD&K, INC" Plaintiff ) ) ) ) ) ) ) ) Civil Term No, 00-4875 vs R,S, MOWERY & SONS, INC. and RSM ASSOCIATES, L.P. Defendants CERTIFICATE OF SERVICE I, Jeffrey S, Shank, Esquire, attorney for the above-named Plaintiff, hereby certify that I duly served a copy of the Answer to New Matter and Counterclaim unto the following person by United States first class mail, addressed as follows: James VV. Kutz, Esqmre McNeese, VVallace & Nurick 100 Pine Street P.O, Box 1166 Harrisburg, PA 17108-1166 Respectfully submitted, GINGRICH, SMITH, KLINGENSMITH & DOLAN Date: ~j)1 b J M, Smith, Esqmre, ill #19520 effrey S, Shank, Esqmre, ill #74471 Attorney for Plaintiff 222 South Market Street, Suite 201 Elizabethtown, P A 17022 (717) 367-1370 .~, '-' .~" -~ . .- lj 1j " f1 ~i fj }i I; ! " ~ ~ ~ l ~ i I ~ " "-,,-c; ,-~~~ ~.' =-C "'-" ~"'-" ~~,,,,...,,,,,,,,=,,,,~-,,-,,--",,-",~--p~ ".,,~ ,,~,~- ""^""~ " ", ~:;,~ _~ "'-C.m-~ '~~-6o-' _ --, " ," .'.- [) ~; " ~i?~ ;:': J ~;~: ~~~~ -'---:<-,-: 5~ :< ~' , (--~' :~~) C;--j ~, I" " ~ J:) -< " ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DD&K, INC" Plaintiff v, R.S, MOWERY & SONS, INC, and RSM ASSOCIATES, L.P" Defendants NO, 00-4875 Civil Term v, H, EDWARD BLACK & ASSOCIATES, P.C" Additional Defendant PRAECIPE FOR WRIT OF SUMMONS TO JOIN ADDITIONAL DEFENDANT TO: Prothonotary Please issue a writ of summons to join H, EDWARD BLACK & ASSOCIATES, P,C" 2403 North Front Street, Harrisburg, PA 17110, as an Additional Defendant in the above- captioned action, Writ of Summons shall be issued and forwarded to ( x ) Sheriff for service, Date: January 12, 2001 ::~~~lff=CK Atty I. D, No, 47245 100 Pine Street P,O, Box 1166 Harrisburg, P A 17108 (717)232-8000 Attorneys for Defendants ..d~ , ._.o__""'~. ,;,',' 0 ,. ._- -,.-. :'jJ: - CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing Praecipe was served by regular, first-class U.S. Mail, postage prepaid, upon the following: Jeffrey S, Shank, Esquire John M. Smith, Esquire Gingrich, Smith, Klingensmith & Dolan 222 South Market Street Elizabethtown, P A 17022 Date: January 12,2001