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Home My WebLink About97-03577 ~, .~. c.., .\1) .. ~ J ~c ~ '"" Q. ~' l. ~',' l' 1:1' <J '1\ ~ \" ~ a-- ~ -.(l \.f ~ \) <j , - . . , . . t- t"-- \t') N") I l'l ~. . Q < ',,, r_; .:, -\1 )~ ,A :,;1 ',1_ 'H\ ;~ , .. ri. " -;j'~ ~ ;l ::a .:~ '~ .:~ ;'1 '.~ , 1) '" ~ j ;r .~ , .) , individuals residing at 670 St. John's Drive, Camp Hill, Pennsylvania 17011. 4. Plaintiffs own the property located at 3600 Carlisle Pike, Camp Hill, Pennsylvania 17011 ('Premises') more specifically described in . 4 of Plaintiffs' Complaint and at Exhibit 'X" of Plaintiffs' Complaint. 5. On November 28, 1978, plaintiffs, as landlord, entered into a lease with Robert L. Evans and Walter Crone, as tenant, for the operation of a Cottman Transmission Center on the Premises. A copy of this lease is attached as Exhibit 'A' to Plaintiffs' Complaint. 6. The tenant commenced operation of a Cottman Transmission Center on or about December 1, 1978. 7. On or about May 9, 1997, Walt Crone 'CRONE' filed a bankruptcy petition, case no. 19702002, in the United States Bankruptcy Court for the Middle District of Pennsylvania. 8. Upon the filing of hi& bankruptcy petition, CRONE's personal property, including his leasehold interest in the Premises, became property of his bankruptcy estate. 9. Plaintiffs filed their Complaint for ejectment and damages in this matter on July 1, 1997, following the filing of CRONE's bankruptcy petition. 10. In that Complaint, plaintiffs allege that COTTMAN is liable to plaintiffs for CRONE's rent delinquencies and that the delinquency precluded any possessory interest or right of assignment by C0TTMAN. I \lJSERS'J'lIIl1.\('A.\U'_llII,\OE~SIIIO'$T^ Y ~IOT 2 11. As CRONE's default under the lease caused the alleged rent delinquency, the merits of plaintiffs' claims regarding the delinquency and possessory interest cannot be investigated without CRONE's joinder in this action as a defendant. CRONE and the Bankruptcy Trustee dispute the amount of the alleged deficiency. 12. CRONE's joinder in this action pending disposition of his bankruptcy is prohibited by the automatic stay provision of the Bankruptcy Code. ~ 11 U.S.C. S 362(a). 13. Plaintiffs are required to file a proof of claim in the bankruptcy to obtain a determination of the amount of the default by CRONE, if any. The plaintiffs claims and CRONE's defenses may only be litigated in the Bankruptcy Court. WHEREFORE, defendant COTTMAN respectfully requests this Court to stay proceedings in this case until disposition of CRONE's bankruptcy, case no. 9702002. Respectful~y suimitted, /1/ . r, , i ! ( ( \ / '~', / ' / ) odd P. Leff, Esquire philip A. Tegtmeier, Esquire Attorneys for Defendant, Cottman Transmission Systems, Inc. 240 New York Drive Fort Washington, PA 19034 (215) 643-5885 1 \t:SERS\MnL~AMP JfiL\GENSBlG\ST ^ Y MOT 3 CRONE commenced operation of his Cottman Transmission Center on or about December 1, 1978 pursuant to a License Agreement with COTTMAN. The lease between CRONE and plaintiffs contained a Cottman Lease Rider which conditionally assigned CRONE's rights under the lease to COTTMAN in the event the License Agreement between CRONE and COTTMAN was terminated. A copy of this Lease Rider is attached to plaintiffs' Complaint as Exhibit "B", On or about May 9, 1997, CRONE filed for bankruptcy in the United States Bankruptcy Court for the Middle District of Pennsylvania, case no. 19702003. Immediately following his bankruptcy petition, CRONE discontinued his operation of the Cottman Transmission Center on the Premises and COTTMAN terminated his License Agreement. COTTMAN notified the plaintiffs that it had terminated the License Agreement and was exercising its rights under the Lease Rider to assign the lease to MOMart, Inc. A copy of this notice is attached to plaintiffs' Complaint as Exhibit "D". MoMart, Inc. is currently operating the Cottman Center on the Premises. On July 1, 1997, following CRONE's bankruptcy petition, plaintiffs filed the Complaint in this matter against COTTMAN and MoMart, Inc. The Complaint seeks damages against COTTMAN based on CRONE's rent delinquency and seeks to eject COTTMAN and MoMart from the Premises. II . ARGUMENT: Both the damages and ejectment counts of plaintiffs' Complaint are directly related to the alleged rent delinquency. I IUSF.RS\J'lffiXAMP _11lI.\GENSOIO\ST A Y ~n~ 2 The alleged delinquency results from CRONE's default under the lease. Plaintiffs have failed to join either CRONE or Robert Evans, the other original tenant, as defendants in this matter. Moreover, plainitffs will be precluded fom joining CRONE by the automatic stay provision of the Bankruptcy Code pending resolution of his bankruptcy. ~ 11 U.S.C. S 362(a). CRONE is an indispensable party to this proceeding as he is the only entity capable of presenting a meritorious defense to the claimed delinquency. Further, Crone must be joined as a defendant as he has rights and interests related to the claim and these rights and interests are essential to the determination of the merits. ~ Fiore v. Oakwood Plaza Shopping Center, 585 A.2d 1012, 1020, 401 Pa, Super 446, 462 (1991) (citation omitted). The failure to join CRONE as a defendant is one of the grounds for dismissal raised by COTTMAN in its Preliminary Objections to plaintiffs' Complaint. A copy of these Preliminary Objections is attached hereto as Exhibit "A" and is incorporated herein by reference. As an alternative to dismissal, a party may request a stay of a subsequently initiated proceeding until a determination is made in an earlier proceeding. Norristown Auto. CO. V. Hand, 562 A.2d 902, 386 Pa, Super 269 (1989). A trial court has the inherent power to stay a proceeding during the pendency of the first action. Radio Corp. of America v. Rotman, 192 A.2d 655, 411 Pa, 630 (1965). In the event that the plaintiffs' Complaint is not dismissed I IUSERS'J'iIIL \CAMP ~ IUL\GENSBIG\ST ^ Y MEM 3 individuals residing at 670 St. John's Drive, Camp Hill, Pennsylvania 17011. 4. Plaintiffs own the property located at 3600 Carlisle Pike, Camp Hill, Pennsylvania 17011 ("Premises") more specifically described in i 4 of Plaintiffs' Complaint and at Exhibit "X" of Plaintiffs' Complaint. 5. On November 28, 1978, plaintiffs, as landlord, entered into a lease with Robert L. Eyans and Walter Crone, as tenant, for the operation of a Cottman Transmission Center on the Premises. A copy of this lease is attached as Exhibit "A" to Plaintiffs' Complaint. 6. The tenant commenced operation of a Cottman Transmission Center on or about December 1, 1978. 7. On or about May 9, 1997, both Walt Crone and W. Crone & Sons, Inc., the operating company for the Cottman Transmission Center on the Premises, filed bankruptcy petitions in the United States 9ankrup~cy Court for the Middle District of Pennsylvania. 8. Upon or immediately after the filing of the bankruptcy Petitions, Walt Crone and W. Crone & Sons, Inc. discontinued operation of the Cottman Transmission Center and abandoned the Premises. 9. Following the bankruptcy filing, COTTMAN terminated the License Agreement for the operation of the Cottman Transmission Center at the Premises. 10. Pursuant to the terms of the Cottman Lease Rider, I:\UStRS\?H:~\CAHP_H:~\jL~S8:G\lP~I".CB: 2 for lack of subject matter jurisdiction. 22. Walt Crone and W. Crone & Sons, Inc. filed bankruptcy petitions on May 9, 1997, prior to initiation of the Complaint in this matter. 23. Upon the filing of the bankruptcy petitions, the bankruptcy court was vested with exclusive jurisdiction over matters relating to the property of the bankruptcy estate. See 28 U.S.C. ~ 1334 24. Walt Crone's leasehold interest and all liability associated with that interest are the property of, or affect an interest in, his bankruptcy estate and therefore fell within the jurisdiction of the bankruptcy court upon the filing of his bankruptcy petition. 25. Moreover, as Count II of the Complaint alleges a liability based on a default which arises from and is related to Walt Crone's leasehold interest, this allegation is within the jurisdiction 0: the bankruptcy court. 26. Plaintiffs are attempting to use the current proceeding as a collateral avenue of relief when the claims and defenses should properly be heard in the Bankruptcy Court. Plaintiffs are not prejudiced by dismissal for lack of subject matter jurisdiction as they may bring an adversary proceeding in the Bankruptcy Court to determine the merits of their claims. WHEREFORE, defendant COTTMAN respectfully requests this Court to dismiss the Complaint under Pa.R.C.P. 1028(a) (1) for ::\UstRS\?H:~\CAHP_HI~\~~~sa:G\?RE::~.:B: 5 ir. c r.::: -~ t-- ::.-~ .. , ~ P.5~" , ( .' " [~L. :.::: -',' . , t - c:. 0:1 ('; t.'-_ WI' . .; -'Lt' (.!', ' .- "".,: 0:.. ~ . '! .l.. r.: ~ lJ_ r- :j 0 cr. u FORD. ROEBERG & MC LAUGHLIN, P,C, By: Kevin E, McLaughlin, Esquire Allomey I.D, #35307 583 Skippaek Pike, Suite 200 Blue Bell, pA 19422 (215) 628-9000 Allomey for Defendant, MoMart, Inc, IN THE COURT OF COMMON PLEAS OF CUMBERLAND CO" PENNSYLVANIA CIVIL ACTION, LAW JOSEPH A, GENSBlGLER and LIZZIE N, GENS BIGLER, Plaintiffs : NO: 97-3577 vs. COITMAN TRANSMISSION SYSTEMS, INC., and MOMART, INC, Defendants ANSWER AND NEW MA ITER Defendant. MoMart, Inc" by and through its counsel. Ford, Roebcrg & McLaughlin, P,C., hereby answers Plaintiffs Complaint and avers as follows: 1. Admilled, 2. Admilled. 3. Admilled in part; denied in part, Admilled that the defendant is MoMart, Ine" a Delaware corporation. Denied that MoMart, Ine, has a place of business at 3600 Carlisle Pike, Camp Hill (Hampden TO\\l1ship), Pennsylvania, 17011. By way of further answer, the principal place of business of MoMart, Inc. is 808 North Charlolle Street, POllstown. Pennsylvania. 19464, By way of further answer. defendant. MoMart.lnc., incorporates by reference the NeIV Maller set forth herein, 4, Denied, By way of further answer, after reasonable investigation, defendant, MoMart, Ine" is without knowledge or information sufficient to foml a belief as to the truth of the allegations contained in this paragraph, and therefore, these allegations arc specifieally denied, 5, Denied, By way of further answer, after reasonable investigation, defendant, MoMart, Ine" is without knowledge or information sullieient to form a belief as to the truth of the allegations contained in this paragraph, and therefore, these allegations arc specifically denied, By way of further answer, such allegations refer to a wrillen docwnent. which speaks for itself. 6. Denied. By way of further answer, after reasonable investigation, defendant, MoMart, Inc,. is without knowledge or information sullieient to form a belief as to the truth of the allegations contained in this paragraph. and therefore, these allegations arc specifically denied, By way of further answer. such allegations refer to a written document, which speaks for itself, 7. Denied, Dy way of further answer. after reasonable investigation, defendant, MoMart. Ine,. is without knowledge or infomlalion sullicient to form a belief as to the truth of the allegations contained in this paragraph. and therefore, these allegations arc specifically denied, By way offurther answer. such allegations refer to a \\Titten document. which speaks for itself. 8, Denied. By way of further answer. after reasonable investigation. defendant. MoMart. Inc" is without knowledge or inlonnation sullieient to fonn a belief as to the truth of the allegations contained in this par<lgraph. and there lore. these allegations arc specifically denied, 9, Denied, By way of further answer, after reasonable investigation, defendant, MoMart, Inc" is without knowlcdge or infonnation sufficient to fonn a belief as to the truth of the allegations contained in this paragraph, and therefore, thcse allegations are specifically denied, 10. Denied, By way offurther answer, after reasonable invcstigation, defendant MoMart, Inc" is without knowlcdge or infonnation sufficient to fonn a belief as to the truth of the allegations contained in this paragraph, and therefore, these allegations are spccifically denied, By way of further answcr, the allegations set forth in paragraph 10 contain conclusions oflaw to which no responsive pleading is required under the Pcnnsylvania Rules of Civil Procedure, and the same are therefore denied. II. Denied, After reasonable investigation. dcfcndant. MoM art, Inc" is without knowledge or infonnation sufficient to fonn a belief as to the truth or accuracy of these allegations. and therefore, said allegations are denied. 12. Denied, After reasonable investigation, defendant, MoM art, Inc" is without knowledge or infonnation sufficient to foml a belief as to the truth or accuracy of these allegations, and therefore, said allegations are denied. By way of further answer, such allegations refer to a writtcn document, which speaks for itself, 13. Denied, TIle allegations contained in paragraph 13 are conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure, and the same are therefore denied. 14. Denied. The allcgations contained in paragraph 14 are conclusions of law to which no responsive pleading is rcquired under the Pennsylvania Rules of Civil Procedure, and the same arc therefiJre dcnied. 15. Denied. After rea~onable investigation, defendant, MoMart, Inc., is \~ithout knowledge or infomlation sufficicnt to form a belief as to the truth or accuracy of these allegations, and therefore said allegations are denied. Further, such allegations rcfer to a written document which is not attached to the Complaint. 16. Denied. To the contrary, MoMart, Inc. has not received any assignment of rights under the Lease referred to in this paragraph. nor has MoMart, Inc. entered into possession of thc Subjcct Property, except under and pursuant to that ccrtain Managcment Agreement. By way offurthcr answer, defendant, MoMart, Inc., incorporates by reference the New Matter sct forth herein, 17. Dcnicd. Any inferencc that MoMart, Inc. owes any amounts to Plaintiffs under the Lease is specifically denied. By way of further answer. defendant, MoMart. Inc.. incorporates by reference the New Matter set forth herein, By way of further answer, the allegations of this paragraph set forth conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. and the same are therefore denied. WHEREFORE. Defendant, MoMart, Inc" demands judgment in its favor and against Plaintiff, COllNT I - FJECTMENT 18. Defendant incorporates herein by reference the aVCmlents contained In paragraphs I through 17 inclusive of this Answer and New Matter, as fully as though the samc were herein sct fllrth at length. 19. Denicd. Thc allcgations contained in paragraph 19 are conclusions of law to which no responsive pleading is rcquired under the Pcnnsylvania Rules of Civil Proccdure, and the same are thcrefore denied. 20. Denicd. '!bc allcgations containcd in paragraph 20 are conclusions of law to which no responsive plcading is rcquired under the Pennsylvania Rules of Civil Proccdurc, and the samc are thcrefore denied. 2 I. Denied. Thc allegations contained in paragraph 21 are conclusions of law to which no responsive p1cading is requircd under thc Pennsylvania Rulcs of Civil Procedure, and the samc are therefore denicd. 22. Dcnicd. Aftcr reasonablc invcstigation. defcndant, MoMart. Inc., is without knowledgc or infomlation sufficient to fOml a belief as to the truth or accuracy of thesc allegations, and therefore said allegations are dcnied. Furthcr denied to thc extent such allegations sct forth in paragraph 22 includc conclusions of law to which no responsive plcading is requircd under the Pennsylvania Rules of Civil Procedure, and the same are therefore dcnied. WHEREFORE. dcfendant. MoMart, Inc., dcmands judgmcnt in its favor and against plaintiff. COUNT II - DAMAGES 23. Defendant incorporatcs hcrein by refercnce the averments contained in paragraphs I through 22 inclusive of this answer as fully as though thc same were hcrein sct forth at length. WIIEREFORE. Defendant. MoMart. Inc., demands judgment in its favor and against Plainti IT. NEW MAHER 24. On or about Junc 1, 1997, defendant, MoMart, Inc., entered into a ccrtain Managemcnt Agreemcnt with Dahlia Transmissions, Inc., a controlled subsidiary of dcfendant, Cottman, pursuant to which dcfendant, MoMart, Inc., agreed to manage the Cottman franchise located in the Subject Property. 25. On or about May 28, 1997, defcndant Cottman assigned to Michacl Moyer ("Moyer") and Douglas Martella ("Martella") all of Cottman's rights under thc leasc dated November 28, 1978 by and between Plaintiffs and Robert L. Evans ("Evans") and Walter Crone ("Crone"), as amended (the "Lease"), under and pursuant to an Assignment of the same date. 26. Cottman was entitled to assign its rights under the Lcase to Moyer and Martella pursuant to the provisions of thc Leasc Ridcr attached as Exhibit "B" to PlaintifTs' Complaint. entered into bctween Plaintiffs, Cottman, Evans and Cronc. 27. Sincc the Assignment. Moycr and Martella have tcndered to PlaintifTs rent chccks and have otherwise perfomlcd all duties and obligations required of the tenant under the Lease, and are not in default thereof. 28. PlaintifTs havc failed to join an indispensable party, bcing Walters and Evans, whose rights under the Lease must be adjudicated as part ofPlaintifTs' claims. WHEREFORE. Defendant, MoMart. Inc., demands judgment in its favor and against PlaintifT. By: >- rO:- n,; C ~~ , , wl-l . " '. ~;'" ... f~" ;.:;: L._ ~h crl ,.') " ... . LLJ-. G:11' e '. . F' ~ I :..~_ LL. r- ~j 0 a- U " SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 1997-03577 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND GENSBIGLER JOSEPH A ET AL VS, COTTMAN TRANSM SYST INC ET AL R. Thomas Kline , Sheriff, who being dUly sworn according to law, says, that he made a diligent search and inquiry for the within named defendant, to wit: COTTMAN TRANSMISSION SYSTEM INC but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of MONTGOMERY CO to serve the within COMPLAINT County, Pennsylvania, On Auaust 4th. 1997 , this office was in the attached return from MONTGOMERY CO County, receipt of Pennsylvania. Sheriff's Casts: Docketing Out of County Surcharge MONTGOMERY COUNTY So answers: 18.00 9.00 2.00 33.00 Sb~.00 SNELBAKER BRENNEMAN & SPARE 00/00/0000 R. fhomas K11ne, ~her111 Sworn and subscribed to before me this '/ day of Q","~J- 19 "7 A. D. '---it"Iu.- (~ n...,(C...... ~J9 ' Prothonotary .. In The Court of Common Pleas of Cumberland County, Pennsylvania Joseph A. Gensbigler and Lizzie N. vs, Gensbigler Cottman Transmission Systems Inc. No, 97-3577 Civil 19_ Now, ,lllly 1, lqq7 Montqomerv 19_,1 SHERIFF OF CUMBERLAND COUNTY, PA do hereby deputize the Sheriff or County to execute this Writ, this deputation being made at the requesl and risk orthe Plaintiff, -/' . ...-",~;~ >:,,:",,: / .... ..:.(.' Sheriff of Cumberland Coun!)', Pa, Affidavit of Service Now, within upoo al by banding to altested copy o[the original the contenls thereof. 19 o'clock ,at M, sen'ed Ihe a true and and made known 10 So answers, Sheriff or Coun!)', Po. COSTS Sworn and suhscrihetl before me Ihis 11)_ SERVICE MILEAla: "FFIIl" \'IT 5 da~' of s , t-,r~ . ~,n1~f "! tv,,\ ........- ":'f"o.",t\. ~'\ .,,"'I..'~' Richard J, Pierce Court Adminislralor OFFICE OF THE COURT ADMINISTRATOR CUMIlEllLAND COUNl Y COUIH or COMMON PLEAS 1 Courthou5o Square' C,uh5Io, PA 17013 Phono Toryn N, Dixon (717) 240.6200 A55i51ant Court Admini5tralor (717) 697.0371 (717) 532.7286 (717) 240.6462 FAX MEMonANIlI 1M TO: The Ilonorable Presidcnt Judge George E, lloncr /" 1 < Taryn N, Dixon, Assistant Court Administrator 7'~ V- FROM: DATE: April 14, 1998 INRE: Argument Court: Casc #2 - Gensbigler v. Cottman Transmission Systems, Ine., 97-3577 This is the first case scheduled for the morning panel. Defense allorney Philip Tagmyer called to say that he is withdrawing his preliminary objections and will not appear for Argument Court, though the praecipe will not be filed previously, In light of this, Philip Spare has a 9 A.M. appointment elsewhere that he would like to keep, If you wish for him to argue before the end of the day, we will contact his office upon your direction, and he will appear. PRAECIPE FOR LISTI:-;C C....,SE FOR ,-\RGDIE:-:T I ~Iust be typewritten Jnd ~ubmitted in duplicate I TO THE PROTHONOTARY OF CDIBERU:-;D COC:-iTY: Please :ist the wlllun maner :'or 'he ~e.x:: P:,.T:tJi ,-\rgume~1 C :Url xxx .-\rgume~ I C oun ---------------------------------------------------------------------- CAPTION OF CASE (entire caption must be slated:n lull) JOSEPH ii. GEtW13IGLER und LIZZIE N. GENSBIGLER N01'E: JUDGE HOFFER II,\S ISSUED SEVER^L ORDERS IN TillS C^SE ^ND IS F^MILI^R I'lITIl 1'IIE B^CKGR^OUND. (Plaulllt'f) " ,(J " C' m " -:-(" ..., c'J ..., (; ':'J '.i~ " :,r11 .-J ,0 ~;(S ~- '::8 , '1-, ".() (5111 ::) :.:'~ -j :.q ,~- -... vs. COT'i%'\N TR^NSmSSION SYS'i'EHS, INC. and MOM1,R'l', INC. (Delend:mtl VS. So. 97 Cil'il 3577 ~9_ 1. Slate matter to be Jtgued Ii. ~.. ?l:unliifi mouon :'or new triaL defendant's demurrer 10 camolaml. ele,,: Defendant Cottman's Preliminary Objeclions to Complaint , Identify counsel who will argue '::l.Se: Phi lip II. Spare 44 W. Main Street Mechanicsburg P^ 17055 Todd P. Leff Coltman Transmission [will notiiy:ill ,arties lI1'vntingvl:~n;;,~JlJ~P~ai4!M!.ssA@-Y..Qn listed lor argument._ (a) for ?lalnt:if: tb) lor Jeiend:mt: 3. Systems, Inc. Fort l'Iashington P^ 19034 , , , ((../v ,.-',d/ / ' I .\tt.:rney ~'or. P1i'1intiffs' Dated: 2/17/'.!lJ ',- ,~) ,-- i ,~ t:: - I.~ lO: " " ( ,. i "\ ". l... 'i'; .'.: ( ~. I 1_:1 iL (' .., , . i' <. " i to. I- t.) C" , .,) ,. tt) , " . '" (< ( " ". " ( I' , , ,-, ". IL ! I t.~ I t .. ( , , -0: u_ _ ~.__~H.____..___ -, .------ Ul-O: Ul -0::> :z ~..:I ~ ..:1:>< fJl Eo< p.,Ul '0 ..... Ul r.., Z l:: ..... :>< 0 zz ~ III '... Ul O~ . .jJ :>< ~p., ~ 0:0: l:: Z -0: "- Eo< ~~ '... 0 Eo< o .:;: ..:1..:1 III H Ul U:><":..:I t:lt:l o-i Ul Ul Eo<..:IH HH p., Ul UlEo<t:l r..,Z :> 0l0l H r..,r..,Z O::JIH UlUl :z r..,HH o U ZZ Ul H..:ICl Eo<UZ ~~ Z Eo< ~ 0: 0..... t:lt:l -0: '0 U ZOril ::JClH..... > 0: l:: Z HEo<U OZEo<t/l . . Eo< III H ..: 0 U":UM ":Z ..:IZO: ..:I": I Z p.,0p., rilO: ..... :I:ril ~ Eo< H :I:ril..:lO'l p.,H . 0: Eo< Eo<OlH rilN Eo< S 0 :z:> UlN Eo<U "- :z Z::JHO OH OZ 0 HUUZ 1-)..:1 UH :z JOSEPH A. GENSBIGLER and LIZZIE N. GENSBIGLER, Plaintiffs v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW COTTMAN TRANSMISSION SYSTEMS, INC., NO. 97-3577 CIVIL TERM and JURY TRIAL DEMANDED MOMART, INC., Defendants M ORDER AND NOW, this ~ day of upon consideration of Plaintiffs' Motion To , 199~ of Proceedings, said Motion is GRANTED and the August 20, 1997 Order of Court which stayed these proceedings is hereby VACATED. J. Fjl.EO..Or("i8E C- -.. ".roo ,-,~- "'( ,r !.+.. ,;",,' )Ir'~' sa FEB 10 F!\ [I: n2 C,_!:,':~:~;':~..:,..; l..C ...:>F':' PtN~; 'i': l: :,,:.;.: .,\ ~q." ~':l ~ "6 ~ t <l "" .''i ~ JOSEPH A. GENSBIGLER and LIZZIE N. GENSBIGLER, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW v. COTTMAN TRANSMISSION SYSTEMS, INC., NO. 97-3577 CIVIL TERM and JURY TRIAL DEMANDED MOMART, INC" Defendants AND NOW, this M 1t:- day , 1997, ORDER upon consideration of Plaintiffs' To Lift Stay of Proceedings, a Rule is entered upon Defendant Cottman Transmission Systems, Inc. to show cause why this Court's Order of August 20, 1997 should not be vacated. Rule returnable a~ i1 L_......:u'j Lv J.Jt:: 1lt::..LU VB ....ut:: Udy v~ , 1:1)1 ~L ....'~188ll .H. III C.....u.. L.Luum 5~r ~ I ~GvV\~.e ' BY THE COURT: LAW ornel~; SN!.LIJAKER. 8REN:'IlEM!\N 8: SPARE J. JOSEPH A. GENSBIGLER and LIZZIE N. GENSBIGLER, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW COTTMAN TRANSMISSION SYSTEMS, INC., NO. 97-3577 CIVIL TERM and JURY TRIAL DEMANDED MOMART, INC., Defendants PLAINTIFFS' MOTION TO LIFT STAY OF PROCEEDINGS AND NOW, corne. the Plaintiffs by their attorneys, Snelbaker, Brenneman & spare, P. C., and move this Court to lift the August 20, 1997 Stay of proceedings, stating the following in support thereof: 1. This action in Ejectment was initiated by the filing of a Complaint on July 1, 1997 in order to remove Defendants from the wrongful possession of Plaintiffs' real estate. 2. Defendant Cottman Transmission systems, Inc. (herein- after "Cottman") responded to the Complaint by filing Preliminary Objections on or about August 7, 1997. 3. Defendant Momart, Inc. responded to the Complaint by filing an Answer with New Matter on August 18, 1997. 4. Plaintiffs filed an Answer to Defendant Cottman's L^W 0111,:[', Preliminary Objections to Complaint and filed a Praecipe to list the Preliminary Objections for argument on August 22, 1997. A SNFLUMa:u. BRENNLMAN l\ SPMU. true and correct copy of Plaintiffs' Answer to Defendant 19. Even Defendant's Memorandum of Law in Support of its Motion For stay recognizes that the requested stay should be granted n[i]n the event the plaintiffs Complaint is not dismissed by operation of Cottman's Preliminary Objections.n 20. Cottman's several references to the automatic stay provisions of the Bankruptcy Code fail to consider that relief from the automatic stay is permitted under certain circumstances. Cottman has not alleged that it has at any time sought relief from the automatic stay. 21. A hearing should be held in order to resolve the facts at issue in the Motion For stay. 22. The Motion For stay relied upon facts not of record in violation of Rule 206-4 of the Cumberland County Rules of Procedure. (C.C.R.P.) 23. The Motion For Stay contained allegations of facts not of record and was not verified in violation of Pa.R.C.P. 206.3. 24. The Stay was granted without application to the Court for a final decree in violation of C.C.R.P. 208-2. WHEREFORE, Plaintiffs respectfully request your Honorable Court to enter an Order of Court lifting the stay of Proceedings LAW orncl:s SNCLOAKER. 8RENNfMAN 8: SPARE -4- v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JOSEPH A, GENSBIGLER and LIZZIE N. GENSBIGLER, Plaintiffs COTTMAN TRANSMISSION SYSTEMS, INC., NO. 97-3577 CIVIL TERM and JURY TRIAL DEMANDED MOMART, INC., Defendants PLAINTIFFS' ANSWER TO DEFENDANT COTTMAN'S PRELIMINARY OBJECTIONS TO COMPLAINT AND NOW, come the Plaintiffs by their attorneys, Snelbaker, Brenneman & Spare, P. C., and answer Defendant cottman Transmission system, Inc.'s Preliminary Objections to Plaintiffs' complaint as follows: .' ~ 1- Admitted. 2. Admitted. J. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted in part and denied in part. .- , . . . ~ .., , c, .:~~ " ..' .} '..:J ~ It is admitted that on or about May 9, 1997 both Walter Crone and W. Crone & Sons, Inc. filed bankruptcy petitions in the United States Bankruptcy Court for the Middle District of Pennsylvania. After LAW OI'"I'ICCS SNt1..BAKER. BRENNEMAN a SPARE reasonable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the EXHIBIT A averment that W. Crone & Sons, Inc. was the operating company for the cottman Transmission Center on the Premises; therefore, same is deemed to be denied and strict proof thereof is demanded at trial to the extent said averment is relevant. Moreover, the averments in Paragraph 7 of the Preliminary objections are not of record in this action, not properly before the court, and are otherwise irrelevant and impertinent and should be stricken, ignored and disregarded. 8. After reasonable investigation plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the averments that upon or immediately after the filing of the bankruptcy Petitions, Walter Crone and W. Crone & Sons, Inc. discontinued operation of the Cottman Transmission Center and abandoned the Premises; therefore, same are deemed to be denied and strict proof thereof is demanded at trial to the extent said averments are relevant. Moreover, the averments in Paragraph 8 of the Preliminary Objections are not of record in this action, not properly before the Court, and are otherwise irrelevant and impertinent and should be stricken, ignored and LAW O"1"ICtS SNELBAKER. BRENNEMAN a SPARE disregarded. 9. Admitted. Moreover, the averments in paragraph 9 of the preliminary Objections are not of record in this action, not properly before the court, and are otherwise irrelevant and impertinent and should be stricken, ignored and disregarded. " -2- EXHIBIT" 10. Admitted in part and denied in part. It is admitted that Cottman purported to exercise its option to assign the lease to MoMart, Inc, It is denied that Cottman had a legal right to assign the lease without Cottman first substituting itself for Crone and assuming the lease obligations. 11. Admitted in part and denied in part. It is admitted that Cottman is not, nor was it at any time relevant to this lawsuit in actual, physical possession of the premises. It is denied that Cottman is not, nor was it any time relevant to this lawsuit in constructive possession of the Premises. By way of further answer, it is averred that Cottman was in constructive possession of the Premises and remains in constructive possession when it purported to exercise an option to assign the lease to MoMart, Inc. without Cottman first substituting itself for Crone and assuming the lease obligations. 12. Admitted. By way of further answer, it is averred that Plaintiffs' Complaint speaks for itself and must be read in its entirety. 13. Admitted. By way of further answer, it is averred that Cottman must meet its obligations under the Lease and Lease Rider prior to effectuating a valid assignment of lease to MoMart, Inc. 14. Admitted. By way of further answer, it is averred that Robert L. Evans and Walter Crone are not necessary or LAW O"ICtS SNELBAKER. BRENNEMAN a SPARE indispensable parties to this action. -3- EXIIIBIT A COUNT II 15. plaintiffs' answers to Paragraphs 1 through 14 hereinabove are incorporated herein by reference thereto. 16. Paragraph 16 is a legal conclusion which requires no response and is deemed to be ~enied. 17. Admitted in part and denied in part. It is admitted that Walter Crone and Robert L, Evans, the original tenants under the lease, are not joined as defendants in this action. It is denied that Walter Crone or Robert L. Evans are necessary or indispensable parties to this action. 18. It is admitted that Paragraph 18 is an accurate conclusion of law; however, it is denied that said conclusion has any application to this action. Neither Crone nor Evans is an indispensable party. 19. Denied. It is denied that both Walter Crone and Robert L. Evans, as parties to the contract under which the plaintiffs , are alleging a default and seeking ejectment are indispensable to this action as each has rights and interests related to the claim and that these rights and interests are absolutely essential to a determination of the merits. After reasonable investigation, Plaintiffs arc without knowledge or information sufficient to form a belief as to the truth of the averment that Walter Crone and the bankruptcy trustee dispute the alleged delinquency; LAW OP'''ctS SNE.L..DAK(R. BRENNeMAN a SPARE therefore, same is deemed to be denied and strict proof thereof -4- EXHIBIT ,\ is demanded at trial to the extent said averment is relevant. It is denied that without Walter Crone's joinder it is impossible to refute the allegations of the Plaintiffs regarding the prior default. COUNT III 20. Plaintiffs' answers to Paragraphs 1 through 19 hereinabove are incorporated herein by reference thereto. 21. Paragraph 21 is a legal conclusion which requires no response and is deemed to be denied. 22. Admitted. 23. Paragraph 23 is a legal conclusion which requires no response and is deemed to be denied. 24. Paragraph 24 is a legal conclusion which requires no response and is deemed to be denied. By way of further answer, it is averred that counsel for cottman informed counsel for Plaintiffs that the bankr.uptcy trustee had "abandoned" the lease, indicating that this matter was not part of the bankruptcy estate. 25. Paragraph 25 is a legal conclusion which requires no LAW ""ICC' SNELDAI(CR. BRENNEMAN & SPARE response and is deemed to be denied. 26. Paragraph 26 is a series of legal conclusions which require no response and are deemed to be denied. It is denied that Plaintiffs would not be prejudiced by dismissal of this I i action. \1 -5- EXHIBIT A COUNT IV 27. Plaintiffs' answers to Paragraphs 1 through 26 hereinabove are incorporated herein by reference thereto. 28. Paragraph 28 is a series of legal conclusions which require no response and are deemed to be denied. 29. Admitted. By way of further response, it is averred that Cottman was named as a defendant in the ejectment portion of Plaintiffs' compliant as a necessary precautionary measure to be certain that Cottman does not attempt to reassign the lease to another tenant. 30. Admitted. 31. It is admitted that MoMart, Inc., is in physical possession of the Premises albeit unlawful as averred in the Complaint. It is denied that MoMart, Inc. has tendered "all rent" since there is no tenancy between Plaintiffs and MoMart, Inc. 32. Paragraph 32 is a series of legal conclusions which require no response and are deemed to be denied. 33. Paragraph 33 is a series of legal conclusions which require no response and are deemed to be denied. LAW O"'IC[1 SNELDAKtR BRENNEMAN 6: SPARE -6- EXHIBIT A COUNT V 34. plaintiffs' answers to paragraphs 1 through 33 hereinabove are incorporated herein by reference thereto. 35. Paragraph 35 is a legal conclusion which requires no response and is deemed to be'denied. 36. Admitted. 37, Admitted. By way of further answer, it is denied that plaintiff had any duty to allege whether the disassociation and agreement was verbal or written. Moreover, the issue raised by cottman is impertinent and frivolous and should be stricken, ignored and disregarded. 38. Denied. It is denied that without such information, Cottman is unable to determine a defense to this matter. On the contrary, Plaintiffs' Complaint is sufficiently specific and the issue should be stricken, ignored and disregarded. COUNT VI 39. Plaintiffs' answers to paragraphs 1 through 38 hereinabove are incorporated herein by reference thereto. 40. Paragraph 40 is a legal conclusion which requires no response and is deemed to be denied. 41. Admitted. By way of further answer, it is averred that Plaintiffs have no duty to plead whether the disassociation or LAW 0,...,C[5 SNELDAKER. BRENNEMAN a SPARE agreement was in writing or to attach any additional writings to -7- EXHIBIT ,\ VERIFICATION I verify that the statements made in the foregoing Answer to Preliminary objections are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. S4904 relating to unsworn falsification to authorities. k.u. . ' Lirie N~~j~ Plaintiff 'J Date: August 21, 1997 uw o"lcn SNELBAKER. BRENNEMAN &: SPARE , 1 , EXHIBIT A JOSEPH A. GENSBIGLER and LIZZIE N, GENSBIGLER, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW COTTMAN TRANSMISSION SYSTEMS, INC., and NO. 97-3577 CIVIL TERM JURY TRIAL DEMANDED MOMART, INC., Defendants ORDER AND NOW, this day of , 1997, upon consideration of Plaintiffs' Response to Defendant Cottman's Motion For Stay of Proceedings Pending Disposition By Bankruptcy Court, a Rule is entered upon Defendant Cottman Transmission systems, Inc. to show cause why this Court's Order of August 20, 1997 should not be vacated. Rule returnable at a hearing to be held on the day of , 1997 at o'clock .M. in Courtroom No. , Cumberland county courthouse, Carlisle, Pennsylvania. BY THE COURT: LAW O"'"ICJ;.5 SNELBAKER. BRENNEMAN 8; SPARE EXlllUl'l' IJ J. JOSEPH A. GENSBIGLER and LIZZIE N. GENSBIGLER, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. COTTMAN TRANSMISSION SYSTEMS, INC., NO. 97-3577 CIVIL TERM and MOMART, INC., JURY TRIAL DEMANDED Defendants PLAINTIFFS' RESPONSE TO DEFENDANT COTTMAN'S MOTION FOR STAY OF PROCEEDINGS PENDING DISPOSITION BY BANKRUPTCY COURT AND NOW, come the Plaintiffs by their attorneys, Snelbaker, Brenneman & Spare, P.C., and respond to Defendant Cottman Transmission Systems, Inc.'s Motion For Stay of Proceedings Pending Disposition by Bankruptcy Court as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4 . Admitted. 5. Admitted. 6, Admitted, 7. Admitted. 8. Paragraph 8 is a legal conclusion which requires no LAW O'''ICCS SNELDAKER. BRENNEMAN 8: SPARE response and is deemed to be denied. By way of further answer it is averred upon information and belief that all interested parties in the Crone bankruptcy have abandoned Crone's leasehold interest in the Premises, thus releasing said leasehold interest EXIIIBI'j' B from the bankruptcy estate. 9. Admitted. 10. Denied. It is denied that Paragraph 10 is a complete and accurate statement of what is alleged in Plaintiffs' Complaint. On the contrary, it is averred that Plaintiffs' Complaint speaks for itself and must be read in its entirety. 11. Paragraph 11 is a series of legal conclusions which require no response and are deemed to be denied. It is denied that the merits of Plaintiffs' claims regarding the delinquency and possessory interest cannot be investigated without Crone's joinder in this action as a defendant. After reasonable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the averment that Crone and the Bankruptcy Trustee dispute the amount of the alleged deficiency; therefore, same is deemed to be denied and strict proof thereof is demanded at trial to the extent said averment is relevant. 12. Paragraph 12 is a series of legal conclusions which require no response and are deemed to be denied. It is denied that Crone should be joined in this action. By way of further answer, it is averred that Crone is not an indispensable party to this action. LAW OFFIces SNELBAKER. BRENNEMAN 8: SPARE 13. Paragraph 13 is a series of legal conclusions which require no response and are deemed to be denied. It is denied that Plaintiffs are required to file a proof of claim in the -2- J-:XIIIllI'i' B bankruptcy in order to obtain an ejectment order and judgment against Cottman and MoMart. WHEREFORE, Plaintiffs respectfully request your Honorable Court to vacate the Court Order of August 20, 1997 which stayed these proceedings. In the alternative, Plaintiffs request entry of a Rule to Show Cause why the August 20, 1997 Order of Court should not be vacated, Respectfully submitted, SNELBAKER, BRENNEMAN & SPARE, P.C. By i;LJ/il ~{~_p 'iichard c. sh;lbaker, Esquire Pa. Supreme ct. ID #06355 Philip H. Spare, Esquire Pa. Supreme ct. ID #65200 44 West Main Street Mechanicsburg, PA 17055-0318 (717) 697-8528 Attorneys for Plaintiffs Dated: August 29, 1997 LAw or'-lces SNELDAKER. BRENNEMAN it SPARE EXHIBIT Il -3- CERTIFICATE OF SERVICE I, PHILIP H. SPARE, ESQUIRE, hereby certify that I have, on the below date, caused a true and correct copy of the foregoing Plaintiffs' Motion to Lift Stay of Proceedings to be served upon the person and in the manner indicated below: FIRST CLASS MAIL. POSTAGE PREPAID. ADDRESSED AS FOLLOWS: Todd P. Leff, Esquire Cottman Transmission systems, Inc. 240 New York Drive Fort Washington, PA 19034 Kevin E. McLaughlin, Esquire Ford, Gourley, Roeberg & McLaughlin, P.C. 583 Skippack Pike, Suite 200 Blue Bell, PA 19422 \-:-:>2c?A ~:,) 2 _ -c: ...." .//f....~~ Philip 'H. Spare, Esquire SNELBAKER, BRENNEMAN & SPARE, P. C. 44 West Main Street P. O. Box 318 Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Plaintiffs Date: August 29, 1997 LAW O~FlCI<l 5N~.LD^K[R. BRENNEMAN a SPARE ,-, .. " , , ., , , " ~ , ,I '- 00, ". ,-. u (':' ,-, ..: H Ul ..::> ril...:l Z ...:l>< 0 ll.Ul "Cl lil lil o H Ul>< Z <: .... .j..l E-< E-<t:ll'O ZZ ~ r<l .... <: OZ Oril , -.-I r<l ril ::;:HZ ~A. ~ ~~ .j..l Z "Cl Ul 00 rilril <: 0 <: Z UlrilH o -:;: ...:l...:l -.-I H Q) 0- rilE-< U><":...:l t:lt:l r<l Ul .... A. Z UH E-<...:lH HH ..... Ul Q) Ul :'50Ul ~Z :> l'Ol'O A. H 0 ril ""~O OOIH UlUl ::;: ~ E-< A.A. 0 U ZZ Ul E-< Ul E-<UZ rilril ZU - O~H ~ or- t:lt:l ~;::; "Cl U Ul U OOA. ;:JOHr- . <: Z ~ OZE-<1t1 > E-< r<l H ~ E-<><t:l~ U":UM ":Z , H ZOIl;Zl<: ...:lOll; I ZUl . E-t ":E-tHZ ril~ r- :I:ril ;'j~ E-t Z 0 UlOOll; :I:ril...:l'" A.H ~ HZ Zal E-tl'OH rilN E-tE-t ..: ril~ril ::;::>' UlN E-tUl ...:l ~OA. ZOHO OH 0>< 0 A. ril~ HUUZ ":l...:l UUl ::;: 0 JOSEPH A. GENSBIGLER and LIZZIE N, GENSBIGLER, Plaintiffs v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW COTTMAN TRANSMISSION SYSTEMS, INC., NO. 97-3577 CIVIL TERM and MOMART, INC., JURY TRIAL DEMANDED Defendants ORDER AND NOW, this day of , 1997, upon consideration of Plaintiffs' Response to Defendant Cottman's Motion For Stay of Proceedings Pending Disposition By Bankruptcy Court, a Rule is entered upon Defendant Cottman Transmission systems, Inc. to show cause why this Court's Order of August 20, 1997 should not be vacated, Rule returnable at a hearing to be held on the day of , 1997 at o'clock .M. in Courtroom No. ____, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT: J. LAW OfflClS SNU.OAKER. 8RENNt:MAN a SPMr JOSEPH A. GENSBIGLER and LIZZIE N. GENSBIGLER, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. COTTMAN TRANSMISSION SYSTEMS, INC., NO. 97-3577 CIVIL TERM and MOMART, INC., JURY TRIAL DEMANDED Defendants PLAINTIFFS' RESPONSE TO DEFENDANT COTTMAN'S MOTION FOR STAY OF PROCEEDINGS PENDING DISPOSITION BY BANKRUPTCY COURT AND NOW, corne the Plaintiffs by their attorneys, Snelbaker, Brenneman & Spare, P.C., and respond to Defendant Cottman Transmission Systems, Inc.'s Motion For Stay of Proceedings Pending Disposition by Bankruptcy Court as follows: l. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Paragraph 8 is a legal conclusion which requires no LAW O~'ICI.5 response and is deemed to be denied. By way of further answer it is averred upon information and belief that all interested SNLLOr.KlH. BRENNEMAN 8: SPARr parties in the Crone bankruptcy have abandoned Crone's leasehold interest in the Premises, thus releasing said leasehold interest bankruptcy in order to obtain an ejectment order and judgment against Cottman and MoMart. WHEREFORE, Plaintiffs respectfully request your Honorable Court to vacate the Court Order of August 20, 1997 which stayed these proceedings. In the alternative, Plaintiffs request entry of a Rule to Show Cause why the August 20, 1997 Order of Court should not be vacated. Respectfully submitted, SNELBAKER, BRENNEMAN & SPARE, P.C. By ~ "j{"' ~' ',I ~' ,~., fit ::,.,.- ':'-'"t', () icharli C. S elbaker, Esquire Pa. Supreme ct. ID #06355 Philip H. Spare, Esquire Pa. Supreme ct. ID #65200 44 West Main Street Mechanicsburg, PA 17055-0318 (717) 697-8528 Attorneys for Plaintiffs Dated: August 29, 1997 -3- ~1I~ 'I!l \997 JOSEPH A. GENSBIGLER and LIZZIE N. GENSBIGLER, Plaintiffs v, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW COTTMAN TRANSMISSION SYSTEMS, INC., NO. 97-3577 CIVIL TERM and JURY TRIAL DEMANDED MOMART, INC., Defendants ORDER AND NOW, this day of , 1997, upon consideration of Plaintiffs' Response to Defendant Cottman's Motion For Stay of Proceedings Pending Disposition By Bankruptcy Court, a Rule is entered upon Defendant Cottman Transmission Systems, Inc. to show cause why this Court's Order of August 20, 1997 should not be vacated. Rule returnable at a hearing to be held on the day of , 1997 at o'clock .M. in Courtroom No. , Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT: J. PRAECIPE ~'OR LISTING CASE FOR ARGUMENT (Must be typewritten and subnitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argunent Court. --------------------------------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) ~J'.dfAt(m) n .0 ,'. " ...J '11 ;..': -, '"1\ r .') I,..: I',J ", , il.:J , '" )/., .. , "':1 1, ..,. .'.') - ;'.' (..)rn L ~ . j ...) :~~ , -, <n -. JOSEPH A. GENSBIGLER and LIZZIE N. GENSBIGLER, Plaintiffs vs. COTTHAN TRANSHISSION SYSTEHS, INC., and HOHART, INC., Defendants tiW~rt") No. 97-3577 Civil 19 1. State matter to be argued (i.e., plaintiff's TTCtion for new trial, defendant's demurrer to complaint, etc.): Defendant Cottman's Preliminary Objections to Complaint 2. Identify =unsel who will argue case: (a) for plaintiff: Address : Richard C. Snelbaker 44 W. Hain Street Hechanicsburg, I'A 17055 (b) for defendant: Address: Todd 1'. Leff Cottman Transmission Systems. Inc. 240 New York Drive Fort Washington. I'A 19422 3. I will notify all parties in writing within t>oO days that this case has been listed for argurent. 4. Argunent Court Date: Octll\ll'r 1, 1997 Dated: August 22, 11.)97 [If/j IfiIb /~1 , /, ,'( (.J 1\ omcy or PL nlllTs Complaint. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted in part, denied in part. It is admitted that COTTMAN's Motion did not contain a Notice to Plead. However, any implication that the non-inclusion of a Notice to Plead affects the validity of the Order granting the stay, entered by this Court on August 20, 1997, is denied as a conclusion of law. 7. Admitted in part, denied in part. It is admitted that COTTMAN's Motion for Stay and Preliminary Objections address an identical issue, namely the conflict with the Bankruptcy Court created by plaintiffs' failure to join Walt Crone, an indispensable party, whose bankruptcy petition predated the commencement of this action. The remainder of paragraph 7 is denied as a conclusion of law. By way of further answer, as both the Motion for Stay and Preliminary Objections are effectively seeking a termination of this action until such time that Walt Crone may be joined without interfering with the Bankruptcy Court, it is specifically denied that this relief need await the outcome of the Preliminary Objection process. 8. Admitted in part, denied in part. It is admitted that COTTMAN's Motion did not seek issuance of a Rule to Show Cause. However, any implication that the non-inclusion of a Rule to Show Cause affects the validity of the Order granting the stay, [TSERSPIIlI.'-CA.\IP 11Il\GE!\SB[l'J.IH A!\S 2 entered by this Court on August 20, 1997, is denied as a conclusion of law. 9. Admitted in part, denied in part. It is admitted that no Rule to Show Cause was issued in response to COTTMAN's Motion for Stay. However, any implication that the non-issuance of a Rule to Show Cause affects the validity of the Order granting the stay, entered by this Court on August 20, 1997, is denied as a conclusion of law. 10. Denied. After reasonable investigation, COTTMAN is without knowledge or information sufficient to form a belief as to the truth of the allegation contained in paragraph 10 and, accordingly, this allegation is denied. By way of further answer, it is specifically denied that the ex parte issuance of an order staying proceedings in this matter pending disposition by the Bankruptcy Court would affect the validity of that order. 11. Denied. After reasonable investigation, COTTMAN is without knowledge or information sufficient to form a belief as to the truth of the allegation contained in paragraph 11 and, accordingly, this allegation is denied. 12. Denied. The allegation contained in paragraph 12 is denied as a conclusion of law. By way of further answer, it is specifically denied that COTTMAN's Motion for Stay implicates any of plaintiffs' constitutionally protected rights and, accordingly, it is specifically denied that the granting of the stay violated plaintiffs' right to due process of law. 13. Denied, After reasonable investigation, COTTMAN is 1 t'SERSl'HU. CA.\1!' I 1Il.'..(iE:-';SIil{ilIH A\S 3 without knowledge or information sufficient to form a belief as to the tLuth of the allegation contained in paragraph 13 and, accordingly, this allegation is denied. By way of further answer, it is specifically denied that counsel's receipt of this Court's August 20, 1997 Order has any affect on the validity of that Order. 14. Denied. After reasonable investigation, COTTMAN is without knowledge or information sufficient to form a belief as to the truth of the allegation contained in paragraph 14 and, accordingly, this allegation is denied. 15. Denied. The allegation contained in paragraph 15 is denied as a conclusion of law. By way of further answer, it is specifically denied that COTTMAN's Motion to Stay, which this Court granted, is without legal merit. To the contrary, it is clear that these proceedings must be stayed pending the disposition of Walt Crone's bankruptcy, Case No. 19702003, in the United States Bankruptcy Court for the Middle District of Pennsylvania. In their Complaint, plaintiffs allege that they are entitled to damages and ejectment based on Walt Crone's delinquencies under a lease agreement between them and Walt Crone. Plaintiffs' Complaint at ! 11. The Trustee and Walt Crone dispute the claim for damages. Walt Crone is indisputably indispensable to this matter. He is a party to the lease agreement which is the crux of plaintiffs' Complaint. It is hia alleged default which gives rise to the claimed delinquency. As such he has rights and interests related to plaintiffs' claims. I 'CSERSJ'IIIL',('A.\lP IUL'GE~SBIGlIn A~S 4 Moreover, these rights and interests are essential to a determination of the merits, Neither COTTMAN nor defendant Momart, Inc. are capable of refuting the plaintiffs' allegations without Walt Crone's joinder. However, Walt Crone's joinder in this action is prohibited by the automatic stay provision of the Bankruptcy Code. ~ 11 U.S.C. S 362(a). Accordingly, COTTMAN's Motion to Stay is entirely meritorious. The proper forum for a determination of plaintiffs' claims is the Bankruptcy Court, the only forum where Walt Crone may be joined as a party. 16. Denied. After reasonable investigation, COTTMAN is without knowledge or information sufficient to form a belief as to the truth of the allegation contained in paragraph 16 and, accordingly, this allegation is denied. By way of further answer, it is specifically denied that any statement made by COTTMAN's counsel has any bearing or binding affect on any position taken by the Trustee of Walt Crone's personal bankruptcy estate. Furthermore, any action regarding a contractual delinquency of Walt Crone's belongs in the Bankruptcy Court regardless of the position taken by the Trustee with respect to the estate's interest in the lease. 1? Admitted. lB. Admitted in part, denied in part. It is admitted that the cited cases do not involve bankruptcies, However, any implication that the subject matter of these cases makes them inapplicable to this proceeding is specifically denied. To the contrary, these cases address the power of the trial court to t ',I;SERS J'llIl.'l'A.\lI' 1111. ,iLSSllh.i I,II-T ASS 5 i , i , I ! '- r:> " f!: to: i: I! " ' , }. " " . .' <: I' I ~"l ( , I l C; L. I ,- L ". ~:: Cl ~, "'>-0 ~ ~~:J:;l~ o~3;oE' c..(.J..e....: u..::..., Oz- Z Z ::; <: .;l .. tll z: ~ 0 Vl ... lfl " ~ '" 0 ~ ~ ~ ~ ... ;.. ~ '" CO 0 0 u. 0 :;;: ~ "" ci UJ 00 z co 00 I:: .....l :; ...J ~ :;; ~ Z 0: " UJ - ~ 0 00 ;:J w ~ ... Vl =:l " 0 '" i: "" cJ z - 00 :; to:! Eo- CI:J >- CI:J z 9 ""''\.... CI:J ad CI:J Q'I -of' S1 ....~ CI:J ~ a: ' z~.~ ~~ .. C Q 0 ,,J ... " Eo-.:.: CoIl ~ e .. C_."( Z ~:c "'<. ~~~~ ~zt:""" 000" u~~<:::I:::. -'\ f!!}SEP II !l 1997 COTTMAN TRANSMISSION SYSTEMS, INC. TODD P. LEFF, ESQUIRE Attorney I.D. 140961 PHILIP A. TEGTMEIER, ESQUIRE Attorney I,D, #74318 240 New York Drive Fort Washington, PA 19034 (215) 643-5885 Attorneys for: DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JOSEPH A. GENSBIGLER and LIZZIE N. GENSBIGLER, Plaintiffs, J. v. No. 97-3577 COTTMAN TRANSMISSION SYSTEMS, INC., and MOMART, INC. Defendants ORDER AND NOW, this day of , 1997, after consideration of Plaintiffs' Motion to Lift Stay of Proceedings, and Cottman Transmission Systems, Inc.'s response thereto, it is hereby ORDERED that Plaintiffs' Motion is DENIED and that the stay of this proceeding shall remain in effect pending disposition of Walt Crone's bankruptcy in the United States Bankruptcy Court for the Middle District of Pennsylvania, case no. 19702003. BY THE COURT: I IUSERS\PHn.'CAMP )ll1.'GESSBIG\LlFT ORD Complaint. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted in part, denied in part. It is admitted that COTTMAN's Motion did not contain a Notice to Plead. However, any implication that the non-inclusion of a Notice to Plead affects the validity of the Order granting the stay, entered by this Court on August 20, 1997, is denied as a conclusion of law. 7. Admitted in part, denied in part. It is admitted that COTTMAN's Motion for Stay and Preliminary Objections address an identical issue, namely the conflict with the Bankruptcy Court created by plaintiffs' failure to join Walt Crone, an indispensable party, whose bankruptcy petition predated the commencement of this action. The remainder of paragraph 7 is denied as a conclusion of law. By way of further answer, as both the Motion for Stay and Preliminary Objections are effectively seeking a termination of this action until such time that Walt Crone may be joined without interfering with the Bankruptcy Court, it is specifically denied that this relief need await the outcome of the Preliminary Objection process. 8. Admitted in part, denied in part. It is admitted that COTTMAN's Motion did not seek issuance of a Rule to Show Cause. However, any implication that the non-inclusion of a Rule to Show Cause affects the validity of the Order granting the stay, 1 It.:SERS\PHD..\CAMP ).m.\GESSBIG\LlFT A.....'S 2 entered by this Court on August 20, 1997, is denied as a conclusion of law. 9. Admitted in part, denied in part. It is admitted that no Rule to Show Cause was issued in response to COTTMAN's Motion for Stay. However, any implication that the non-issuance of a Rule to Show Cause affects the validity of the Order granting the stay, entered by this Court on August 20, 1997, is denied as a conclusion of law. 10. Denied. After reasonable investigation, COTTMAN is without knowledge or information sufficient to form a belief as to the truth of the allegation contained in paragraph 10 and, accordingly, this allegation is denied. By way of further answer, it is specifically denied that the ex parte issuance of an order staying proceedings in this matter pending disposition by the Bankruptcy Court would affect the validity of that order. 11. Denied. After reasonable investigation, COTTMAN is without knowledge or information sufficient to form a belief as to the truth of the allegation contained in paragraph 11 and, accordingly, this allegation is denied. 12. Denied. The allegation contained in paragraph 12 is denied as a conclusion of law. By way of further answer, it is specifically denied that COTTMAN's Motion for Stay implicates any of plaintiffs' constitutionally protected rights and, accordingly, it is specifically denied that the granting of the stay violated plaintiffs' right to due process of law. 13. Denied. After reasonable investigation, COTTMAN is 1',L:SERS'Pl:UL\CA'\{P_Hn.'.cE~SBIG\LIFT ASS 3 without knowledge or information sufficient to form a belief as to the truth of the allegation contained in paragraph 13 and, accordingly, this allegation is denied. By way of further answer, it is specifically denied that counsel's receipt of this Court's August 20, 1997 Order has any affect on the validity of that Order. 14. Denied. After reasonable investigation, COTTMAN is without knowledge or information sufficient to form a belief as to the truth of the allegation contained in paragraph 14 and, accordingly, this allegation is denied. 15, Denied. The allegation contained in paragraph 15 is denied as a conclusion of law. By way of further answer, it is specifically denied that COTTMAN's Motion to Stay, which this Court granted, is without legal merit. To the contrary, it is clear that these proceedings must be stayed pending the disposition of Walt Crone's bankruptcy, Case No. 19702003, in the United States Bankruptcy Court for the Middle District of pennsylvania. In their Complaint, plaintiffs allege that they are entitled to damages and ejectment based on Walt Crone's delinquencies under a lease agreement between them and Walt Crone. Plaintiffs' Complaint at , 11. The Trustee and Walt Crone dispute the claim for damages. Walt Crone is indisputably indispensable to this matter. He is a party to the lease agreement which is the crux of plaintiffs' Complaint. It is hia alleged default which gives rise to the claimed delinquency. As such he has rights and interests related to plaintiffs' claims. I IL'SW'PHIL'CAMP Jill;CESSBIG\UFT A.o.,;s 4 Moreover, these rights and interests are essential to a determination of the merits. Neither COTTMAN nor defendant Momart, Inc. are capable of refuting the plaintiffs' allegations without Walt Crone's joinder. However, Walt Crone's joinder in this action is prohibited by the automatic stay provision of the Bankruptcy Code. ~ 11 U.S.C. S 362(a). Accordingly, COTTMAN's Motion to Stay is entirely meritorious. The proper forum for a determination of plaintiffs' claims is the Bankruptcy Court, the only forum where Walt Crone may be joined as a party. 16. Denied. After reasonable investigation, COTTMAN is without knowledge or information sufficient to form a belief as to the truth of the allegation contained in paragraph 16 and, accordingly, this allegation is denied. By way of further answer, it is specifically denied that any statement made by COTTMAN's counsel has any bearing or binding affect on any position taken by the Trustee of Walt Crone's personal bankruptcy estate. Furthermore, any action regarding a contractual delinquency of Walt Crone's belongs in the Bankruptcy Court regardless of the position taken by the Trustee with respect to the estate's interest in the lease. 17. Admitted. 18. Admitted in part, denied in part. It is admitted that the cited cases do not involve bankruptcies. However, any implication that the subject matter of these cases makes them inapplicable to this proceeding is specifically denied. To the contrary, these cases address the power of the trial court to 1 \L'SERS\Pl-m.'CAAtP Jnl'..(jE~S8IG'l.IFT A.-':S 5 stay a proceeding during the pendency of another action which is precisely the relief that COTTMAN is seeking and which this Court already granted. 19. Admitted. 20. Admitted. By way of clarification it is alleged that COTTMAN is not taking any action affecting any property of any bankruptcy estate which would require COTTMAN to seek relief from the automatic stay. 2l. Denied. The allegation contained in paragraph 21 is denied as a conclusion of law. 22. Denied. The allegation contained in paragraph 22 is denied as a conclusion of law. 23. Denied. The allegation contained in paragraph 23 is denied as a conclusion of law. 24. Denied. The allegation contained in paragraph 24 is denied as a conclusion of law. WHEREFORE, defendant, Cottman Transmission Systems, Inc., respectfully requests this Court to deny plaintiffs' Motion to Lift Stay of Proceedings. RespeOtfull A/ ' 'r I ~dd P. Le f, Esqu~re Philip A. Tegtmeier, Esquire Attorneys for Defendant, Cottman Transmission Systems, Inc. 240 New York Drive Fort Washington, PA 19034 (215) 643-5885 I \L'SERS\PHIlXAMP _Hn.'(jE~'SBIG'l.[FT ^"''S 6 .,f UNITED STATES BANKRUPTCY COURT Middle District of Pennsylvania , I /-,- I In re: Walter Crone 161-34-1126 Salty A Crone 193-36-4370 Case No. 1-97.02002 Chapter 13 SUMMARY OF SCHEDULES NAME OF SCHEDULE ATfACHED NUMBER I YES/NO) F SIlEETS A. Real Prop~rly YES n Personal PrtJpcrty YES C. Property CbuncJ As Exempt D. Creditors Holding S~curcd Claims YES YES E Creditors Holding Umc:c:urcJ Priorily ClJirns F . Creditors Holding UnsClo:llfCd Nonpriority Cturns YES YES G. Executory CllntrJcts and Unexpired Leases YES H Codcblors YES Current Income of Individual Debtor!!i J YES Current Expenditures ~d Individual Dcbtorls) YES TOlJI Numbcr of sheels in ALL Schedules > > Tutal Asscls :> :> 1$ . Ll ,~! CERTlF!t:O Ff<Or!; 111[:: RECORD t'lIS~ r~ , I' '1 n '/'\ d::w of ,"___r5..1JA,f!.!.!..~~I..___'__' _ t, ,"(,',-,-t " ("'I C~,n';l1ntq' Court 1',uI . I..... . .' ,-,,-, . .. !, U .1), i Por__-L.:.:L ._ J ~ . . ~...._ -.._.._....._._..__ L'..,!)lJt/ CI,'i:l.; AMOUNTS SCIlEDULED 1 ASSETS 250,000.00 . ..~ . H 'H _ .~....~~ ~ -L::::~= ~-_ -::. ~ =-~~:'-1'7M LIABILITIES OTIIER S 2 , :.:..':~ ''':' ~...- :./':~:-:--;"'':-:;::,~- c, ~.. - ,~" ~"'~'. 't 28,102.00 S ; ~':~,~ ~~~-::"~~~~~~~~: 1 ~,:'m..!-~_:';..~-...-~ ~'':,::-L:';~:L: ;.".;;..;""t!<~,j"~~~~ t~;~;IdU~i:g:-i.i~ [;E;1,~J:~':;-:~;:~;::i:~~:;~~ 1 t~:..: 'p~" -:;:;:,.... -::^:/;t'-~~"'~ -~"::~.~~ :;:;;;"~];"'1a'm;.1:i, ~::!i.:i~ ~03~~; :f~~&';; 294,364.05 S 2 ~zi:$Zs::: ~~:::~..:v~;; Z~:';::-~~'"~~:W1'~:~-~ ._~: S 428..8 1 ::: ;;"::-- .~"'l"r 7~-:,,7;.~".,':z ~~~':.t::::f.~..::.b:'-.::~ ~"'.-;:~'''-:''~ '~"^"'~ ,', .-,"'::.:'.~ ~~~~;I..';'"'~_~;;-:;>..t~ S 27,163.46 1 ::':.t::;'M'-':::~"';:'T~~~l+:'::r:.: ..-- <-, -.-..,'~ -,,,,,,~,,,,,,_,,,,,,_ _....H._.. _".~~ ~~~~:~~~3?3<-;~~ ~; "~,!;;:,'t,~:f'i~~:.Et~ ""'l"-'-"'"--"'~-~'-'- 1 ~~.-:~',,"T:::'-;'17.~-': t:t~~4J.,=~ t'::-: ;;T~:j:';.!"'~"'~";:~1."0r..;t!!. ;:<--;'~~;'~~;;'iij;~~ ;: ;<':-.'i;<a~"'~:I:;-~"~-:.'t :;:",_;:.'":;.z.~::.-:~_~~.::~, 1 :-'~Z17_o;;,~'":::'=.-;;::::::,--3'"2-.: ~~~~..t-~\.;~-:;t.., 0.00 ";,"_" ;;.' ."'''::'-:_'-''''': L: ,:;O;_';~: +~...";:;.. .. ,.-.: "'.:;~_;:.J...,,:,~...:....w~4 IS 1 ~~:r~~~'3.';";:~.1:.7' ~~ S 1,275.00 l7.........".........,....,,-,...''''-~...t;1''''!; ;.......,.M_ .M_~~.~.".iJ.: _'"'.:-~..::~'l; 12 _k"_" u ,~.....,_ _....., ....._~__""_..., ~ut.:;:.:.:t;."'::-.:y{.~:::,.S.~~ ~~:~\~~i~,~ 1~4'f~':~ 278,102.00 '$;:;/:'...... 4 ~~ ~,..."r_7"'""k TllfJI LIJhltfics .> .> ~ I 321,955.99 I PLAINTIFF'S EXHIBIT I o w- 'In re: .Ulltcr Crone 161'34-"26 Sail y A Cron. 193-36-4370 Case No. 1-97-02002 SCHEDULE B - PERSONAL PROPERTY lYPE OF PROPERlY DESCRlmON AND LOCA nON OF PROPERlY HUSB, WIFE JOINT OR OMM, CURRENT MARKET I'ALVEOF DEBTOR'S INTEREST IN PROPERlY WllllOUT DEDt:cnNG ANY SECURED CWM OR EXEMmON I. C..h on hand, cash J 100.00 1. Checking, savings or other fmancial Farmers Trust Co. (checking) J 1,000.00 accounu" cenificatcs of depolit, or shares in banks. savings and loan, thrift, building and loan~ and homClle3d associations, or credit unions, brokerage houses, or cooperatives. , J, Security deposits with public utilities, NONE 0.00 telephone companies, landlords, and others. 4, Household Goods and furnishinGs, Estimatad household content.. as J 12,000.00 includinG audio, video, and computer totaled by Debtors at liquidation equipment. value. S, Books, pictures and other :ut objects, NONE 0.00 antiques, stamp, coin. record, t3pc. compact disc. and other collections or collectibles. 6, Wc.1ring apparcl. average clothing J 200.00 7, Furs and j!:welry. Dabtors' wadding bands & en~agement J 500.00 rings; other misc. costume Jewelry 8, Fireanns and sports, photOGraphic, and 3 pistols used for sports J 800.00 othcr hobby equipmcnt. 9, Interests in insurance policies. Name NONE 0.00 - insurance eompany,Qf~eh policy and itemize surrender or refund value of each. 10. Annuities. Itemize and name c.1ch issuer. NONE 0.00 11. Interests in IRA, ERISA, Kcogh. or othcr ($2,000 on deposit in IRA with IDS J 0.00 pension or profit sharing plans. Itemize. not property of the eatate. If detarmined to be property of the Bst.ate, then debtor exempts under 11 U.s.C. Sec. 522(d) (10) (E)) I::!. Stock and interests In incorporatcd and stock in W & 5 Automotive, Inc. J 1.00 unincorporated huslnesses. Itemll.e. (Filed Ch. 7 on Hay 9, 1997, case #1-97-02001) W. CrODe & Sons, Inc. (Ch. 7 filed J I 1.00 on Hay 9, 1997, case #1-97-02000) 13, Interests in partnerships or joint \'entures. NONE 0.00 Itemize. 14. Government and COrrOr:ltc ~onJs and NONE 0.00 other ncgotlabh: and non.nq;otlJhlc instruments . IS, Accounts Receivable. NONE I 0.00 I , 0,001 16. Alimony. malOlcnance, ~urrnrt ;lnd NONE I propcny '\.'lllcmcnts h) "' hl.:h l~lC dchtllT 1\ i I ur may hc \:ntllkd. Gi\c r.Ht'~'lllJ.TS , --_.~ Sdl\.'d',!,' B P.l~"': , In re: 'Ualter Crone 161'34-1126 SIlly A Crone 193-36-4370 Clse No. 1'97-02002 SCHEDULE B - PERSONAL PROPERTY riPE OF PROPERri Husn, WIFE JOINT OR OMM, CURllENT MARKcr VALUE OF DBlTeR'S IN7EREST IN PRO PERri \\ITIlOUT DEDUCT1NG ^"Y SECURED CWM OR ~EMPTION DESCRIPTION ^"D IDCAnON OF PROPERri 17, Other liquidated debts owing debtor NONE 0.00 including lax refunds. Give details. 18, EquilSble or future interesLJ. life aISles. NONE 0.00 and righ15 or powers exercisable for the benefit o~ the debtor other thsn those listed in the Sehs:dule or Real Propc"y, 19. Contingent and non<ontingent interest in NONE 0.00 alSte of I decedent, dcoth benefit plan, life insura.nce policy. or trust. '10. Olher contingent and unliquidated cbims NONE 0.00 of any nature. including tax refunds. counterclaims of the debtor. and rights to setoff claims. Give estimated value of each. 11. Patents, copyrights. and other intelJectual NONE 0.00 property. Give estimated value of each. ZZ. Licenses, franchises. and other general NONE 0.00 inungibles. Give particulars. 13. Automobiles, trucks, trailen. 3.nd other 1990 Toyota Pick-up J 4,soo.00f vehicles and accessories. 1992 Chevy Camara J 9,000.001 I :!4. Boals. motors, and accessories. NONE 0.00 -15. Aircr:tll and acccssoM~S. NONE 0.00, Z6. Office equipment, furnishings. and NONE 0.001 supplies, I Z7. Machinery, fIXtures, equipment. and NONE 0.001 supplies. I :!8. Inventory. NONE 0.001 I :9. Animals. NONE 0.001 , 30, Crops - growing or harvested. Give NONE 0.001 paniculan. I 31. Fanning equipment and implements. NONE 0.001 I 31. Fann supplies, chemicals. and feed. NONE 0.001 , 33 Olher pcrson3.1 property of any kind not NONE 0.001 already listed. Itemize. TOTAL . 28,102.00; ~,hl'd\lk H P.l~'l' ~ 'In re: '\lllter Crone 161'34-1126 Solly A Crone 193.36'4370 Cue No. 1.97'02002 SCHEDULE C - PROPERTY CLAIMED AS EXEMPT D.btor e1ecta lh. ex.mplion 10 whi.h d.btor i, .ntilled und.r: [Xl 11 u,s,c, ~ S~~(b)(I) [J 11 u,s,c, ~ S~~(b)(~) Ex.mption, provided in 11 U,S,C. ~ S2:!(d), Note: Th.... ex.mption, are availabl. only in ..ruin ,tat." Ex.mplion, ovoil.bl. under opplieoble nonbonkruptey federallawl, .tole or loe.llaw where the d.blor', domicile h.. been loeoted for the t80 doya immediately preceding the filing of the petilion, or for a longer portion of the 180-day period than in any other place. and the deblor'. inlereS!... lenont by lhe .nlirely or joint tenant to the extent the interest iJ exempt from proCesl under applic:able nonbankroptcy law, SPEClflC VOW VALVE OF CURREST MARKET DESCRlf'nON OF PROPERlY PROVlDtNO EACH CWMED VALUE OF PROPERlY EXEMf'nON EXEMl'I10N WtntoUT OEOUCllSG EXE\ll'I10NS ($2,000 9n deposit in IRA 11 use S 522(d) (10) (E) 0.00 0.00 with IDS.not property of the estate. If determined to be property of tbe estatu, then debtor exempts under 11 u.s.e. Sec. 522 (d)( 10) (E)) 1990 Toyota Pick-up 11 use S 522 (d) (2) 2,400.00 4,500.00 1992 Chevy Camaro 11 use S 522(d)(2) 2,400.00 9,000.00 3 pistols used for sports 11 use S 522(d)(3) 800,00 800.00 average clothing 11 use S 522(d) (3) 200.00 200.00 cash 11 use S 522(d)(5) 100.00 100.00 Debtors' wedding bands & 11 usc S 522(d)(4) 500.00 500.00 engagement riojs; other aisc. costume ewelry Estimated household 11 use S 522(d)(3) 12,000.00 12,000.00 contents as totaled by Debtors at liquidation value. Farmers Trust Co. (checking) 11 usc S 522(d)(5) 1,000.00 1,000.00 residence located at 216 11 use S 522(d) (1) 30,000.00 250,000.00 Wesley Drive, Hechanicsburg 11 use S 522(d) (5) 500.00 PA 17055 Sd\l:dllk (. P.l;.'l" 'In r~: I Ual ter Crone 161-34-1126 Silly A Crone 193,36-4370 Case No. '-97-02002 Schedule D - Creditors Holding Secured Claims CREDITOR'S NAME WJUNO ADDRESS INCWDlNO 7JP CODE CO. DlmR SDAND 'W1FE 100NT OR OMMUN, ClAIM DArn. NATIJRE OF UEII, DESCRJPnON AND w'RXlIT VAWE OF PROPERTI' SllIllECT TOUEII CON'TINOENT UNUQUlDAlEl D1SI'\JTED AMOUNT OF ClAIM 'W11110UT DEDUCTINO VAWEOF COlli. 'fERAL UNSECURED PORTION, IFANY ACCT,NO, 13-24-0793-161 NO J 1996 Cumberland Co, Tax Cl. Bur. 1,415.05 1,415.05 Cumberland Co. Courthouse del. real c.slAte lAX Carlisle PA 17013 . i VALUE S 185,000.00 ACCT, NO. 5-0010007806 NO J Mortgage Farmers Trust Co. 185,000.00 0.00 PO Box 220 residr.nce, nnd all equipment, Carlisle, PA 17013-0220 receivables, ctc. of both Corporate entities, VALUE S 250,000.00 ACCT,NO.062-0611-88052 NO J GHAC 2,949.00 0.00 PO Box 53014 1992 Chevy Camaro Charlotte NC 28250-7981 VALUE S 9,000.00 ACCT, NO. NO J CONTINGENT Interaal Revenue ..service UNLIQUIDATED 0.00 0.00 PO llox 12051 potcntial13x lien for penonal Philadelphia, PA 19105 obligations VALUE S 185,000.00 ACCT, NO, NO J 1994-1997 Statutory Lien CONTINGENT PA Dept. of Revenue UNLIQUIDATED 105,000.00 105,000.00 Bureau of Compliance del. sales lax (pcnonalliability oi Dept. 281230 debtors for any remaining balance Harrisburg, PA 17128-1230 aller Corp. entities have been sold) VALUE S 185,000.00 Suhlol.3J. I 294,364.05 Tol.3l of Ihi. a el p g TOTAL. 294,364.051 ')dll..t!llk () P.!L'l': .'1 1 In re: Walter Crone 16'-34-1126 Sally A Crone 193-36'4370 Ca.e No. '-97.02002 Schedule E - Creditors Holding Unsecured Priority Claims TYPE OF PRIORITY: Taxes and other certain debts owed to governmental units HuSBAND DATOCWM CREDITOR'S NAME WIFE WAS INCURRED. CONTINGENT TOTAL AMOUNT ~lAIUNG ADDRESS Co. JOINT AND UNUQtnDA 1El AMOUNT ENllT1LD INCIlJDING ZIP CODE offiTOR OR CONSIDERA nON DISPUTED OFCWM TO rOMAIUN, H1R CWM PRIORITY ACCT, NO, NO J CaNT UNLQ Internal Revenue service 0.00 0.00 PO BoX 12051 potential personal Philadelphi,a. PA 19105 obligation for delinquent I (non-liened) tax obligations of the debtors' two bankrupt corporatioos. ACCT. NO, 13-24-0793-161 NO J Mary AnD Prior, 'rreasurer 428.48 428.48 1993 Hummel Avenue current real estate Camp HiU, PA 17011-5938 taxes ACCT, NO, NO J CONT UNLO PA Dept. of Revenue 0.00 0.00 Bureau of Compliance persooal reap. for Dept. 281230 del. aales tax Harrisburg, PA 17128-1230 non-liened ..' - Subtotal. I 428.48 (Total of thIS pase) TOTAL . 428.481 In re: 'V.lter Crone 161-34-1126 SlllV A Crone 193'36.4370 Case No. '-97'02002 Schedule F - Creditors Holding Unsecured Nonpriority Claims CREDITOR'S NAME WJUNO AODRESS INCWDlNO 7Jr CODE HUSBAND WIFE CO- JDlNT EBroR OR COMMUN, DATCCUJM WAS INClJRJlEl), AND CONSIDERATION FOR ClAIM, IF CUJM IS SlJIUECT ro SETOFF. SO STATC CO~'11NGE.'T UNIJQUlDAlEl DlSrun:o AMOUNT OF CJ..\JM ACCT,NO, 3739-814681-01001 NO J American Express Centurion mhc. purcbsses 1,509,98 PO Box 1407 Newsrk, NJ,07101-1407 ACCT,NO,5424-1800-8223-6370 NO J , citibank Ma~ter Card misc. purcbases 2,316.03 PO Box 1747 Bagerstown, NO 21748-1747 ACCT. NO, 5440570000288661 NO J GE Rewards misc. purchases 1,440.00 PO Box 921 Kings Mill, OB 45034-0921 ACCT,NO.969-821-60 NO J Becbt's misc. purchases 197.00 PO Box 94872 Cleveland, DB 44101-4872 ACCT.NO,5329-0316-5414-6644 NO J HBNA America Msster Card misc. cbarges 11,700.00 PO Box 15137 Wilmington DE 19886-5409 ACCT,NO, 0275302500108 NO J Mellon Bsnk NA .' - misc. purcbases 9,351.451 PO Box 371981 Pittsburgb PA 115250-7981 I ACCT,NO.5484021357299 NO J 649'00! Sears misc. purchases , PO Box 555 i Columbus, DB 43216 I SublOI.1I. 27,163.461 T01.1I of this '3 'c) I g TOTAL. 27,163.461 , 1\, t:,', ~ , ,I I' , :.. I ~ . 'In re: 'U.lter Crene 161'34'1126 Sill y A Crone 193-36.4370 CI.. No, 1.97.02002 Schedule I - Current Income Of Individual Debtor(s) Debtor'. Mlrital StalUs: Harried Debtor'. Age: Spouse's Age: DEPENDENTS OF DEBTOR AND SPOUSE NAMES HOllE AGE RELATIONSHIP EMPLOYMENT: DEBTOR SPOUSE Occupation, unemploy..d unuploy..d How long employed Nlme Ind Mdrcll of Employer I Income: (Estimate of avel'1ge monthly income) DEBTOR SPOUSE Current monthly grail \l.'Iges. salary, and commissions (pro "lie if nol p.id monthly) $ 0.00 $ 0.00 Estimated monthly overtime $ 0.00 $ 0.00 SUBTOTAL $ 0.00 $ 0,00 LESS PA YROLL DEDUCTIONS I.) Payroll Lues lnd social security $ 0.00 $ 0.00 b.) In,uranee $ 0.00 $ 0.00 c,) Union dues $ 0.00 $ 0.00 d.lOlher SUBTOTAL OF PAYROLL DEDUCTIONS $ 0,00 $ 0.00 TOTAL NET MONTHLY TAKE HOME PAY $ 0.00 $ 0.00 Regular income (ram opcr.l.tion o( business, profession or (,mn $ 0.00 $ 0.00 (attach detadc<l,Ulcment) Income from real propcny $ 0.00 $ 0.00 ~ Interest and dividendi"- $ 0.00 $ 0.00 Alimony, maintenJnce or support payments payable to the debtor (or the 0.00 $ 0.00 debtor's use or that of dependents listed above. $ Social security or olher government auisl:1nce 0,00 $ 0.00 (Specify) $ Pension or retirement income $ 0,00 $ 0.00 Olher monthly income (Specify) $ 0.00 $ 0.00 TOTAL MONTIlL Y I~COME $ 0.00 $ 0.00 TOTAL COMBINED MO~T1IL Y INCOME $ 0.00 Dcsenhc any increase or deereJ1e of more Ihan 1090 in any o( Ihe above categories anticipated to occur withm the )'e.1r following Ihe filing of Ihis Jacument: Botb debtors previously worked at Cottman Tran.mi..ion. (owoed b~ tbe Debtors' two blnkrupt corporations), Hrs. Cron.... doctora bave .nstructed tbat sbe not work. Hr. Crane i. currently seeking employment. Furtber, debtors' plan proposes to sell tbe resideoce, requiring tbe debtors to relocate, Current expenses are unknown and subject to adjustment once debtors find suitable bou.ing, Sdl~'dllk I P.I.\': . In re: . \Ill ter Crone 161-34-1116 Silly A Crone 193'36.4370 C... No. 1.97'01001 Schedule J - Current Expenditures Of Individual Debtor(s) [ ] Chcck this box if a joint petition is filed and debtor's spousc maintains a scparatc houschold. Comp1cte a separate schedule of expenditures labeled "Spousc," Rent or homc mortgage payment (include 101 <tnted for mobUe home) Are real estate taxes included? [] Yes [x] No Is property insurance included? [] Yes [x] No Utilities: Electricity and heating fuel Watcr and sewer Telephone Other: , , , Home Maintenance (Rcp,in and upkeep) Food Clothing Laundry and dry cleaning Medical and dcntal expenses Transportation (nol induding C3r payments) Recreation, clubs and entertainment, newspapers, magazines, etc. Charitable contributions Insurance (nOI deducted rrom wages or included in home mons,sc p'ymenlsl: Homeowner's or renter's Life Health Auto Other: Taxes {not dcdpl:tcd from wages or included in home mortga~e raymcntsl (Specify) . Installment payments (In ch,pler 12 & 13 cms, do nOlli't p'ymcnts to be included In lhe planl Auto Other: Alimony, maintenance, and support paid to others Payments for support of additional depcndents not living at your home Regular expenses from operation of busincss, profession, or farm 1,ll.1ch ,'mil Other: TOTAL MONTHLY EXPENSES IReport ,ho un Summ,ry u[Schcdul,,' $ 0.00 $ 0.00 $ 0.00 $ 0.00 $ 0.00 $ 0.00 $ 400.00 $ 50.00 $ 0.00 $ 75,00 $ 150.00 $ 0.00 $ 0.00 $ 0.00 $ 0.00 $ 150.00 $ 50.00 $ 0.00 $ 0.00 $ 400.00 $ 0.00 $ 0.00 $ 0.00 $ 0.00 $ 0.00 $ 1,275.00 (FOR CHAPTER 12 and 13 DEBTORS ONLY) Provide the information requested below, including whcther plan payments are to be made bi,weekly, monthly, annually, or at some other regular interval. A. Total projected monthly income B, Total projCCled monthly expcnses C, Excess income (A minus B) D, Total amount to be paid into plan Monthlv $ $ $ S 0.00 1,275.00 -1,275.00 50.00 In re: Walter Crone 161-34-1126 Silly A Crone 193-36-4370 CIS. No. 1.97.01002 Declaration Concerning Debtor's Schedules DECLARATION UNDER PENALTY OF PERJURY BY INDIVIDUAL DEBTOR I dcclore under penally ofpeljury Ihall have read th. foregoing summary and lehedulea, eonlisting or 12 sheeu plullhe summary page, and thai they are lrue and cornelio Ihe best of my knowledge. informalion, and bellef. , . \ Signalure fiiif/~ ~ r- Wi ter Crone Signllure dA1JJt 0, r M.l) Sa y A Crone Dale J-' ;20'9'/ Date ,g- dlll . q1- ...-...............-...............-..............-........-...--...-..............................-......................... DECLARATION UNDER PENALTY OF PERJURY ON BEHALF OF A CORPORATION OR PARTNERSHIP (NOT APPLICABLE) ,." I'.'nall\ I,,, lIl,'~lIl, a 1,01,,' ',""lIl"'" ", """",01"" 1''''1'<111 1'",<..1 "I' ,.. SlQO,OOQ.., 11Il1'""""",'nl I,,, "I' ,.. < ,,'.11' ,'r ",':h 'S I' S (' , 1~~ .Ill.! J~71 SAME AND ADDRESS OF r^ YJ:E Bri~n J. Tyler, E;quire 1718 North Second Street Harrisburg, PA 17102 None III None III None III None III None III None ( I None III Nnne II 5. Repossessions, foreclosures and returns Lisl aU property that has been repoue15ed by a credilor. sold ala foreclo.ure IIle, I",",ferred Ihrough a deed in lieu of roreclo.ure or returned to the seUer, within one year immedlltely preceding the commencement of this case. (Married debtors ruing under chapter 12 or chapter 13 must include infonnation concerning property of either or both SPOUICl whether or not a joint petition is filed. unless the spouses arc separated and a joint petition is not filed.) 6. Assignments and receiverships a, De.cribc any auignment of property for !he benefit or creditors made within 120 day. immedialely preceding !he commencement of this cue. (Married debtor. filing under chapter 12 or chapter 13 mUlt include any aJlignmcnt by either or both spouses whether or not a joint petition is med, unless the spousa are lepantcd and a joint pelition is not filed.) b. list all property which hIS been in the hands of a custodian, receiver, or coun.appointcd official within one year immediately preceding the commencement of this cue. (Married debtors rilin~ under chapter 12 or ch.pter 13 must include information concerning property of either or both spouses whether or not a jomt petition is flIed. unJeu the spouses are separated and a joint petition i. not filed,) 7. Qifts I List all gifts or ehari13ble contributions made within one year immediately precedin~ the commencement of this cue except ordinary and usual gifts to family memben aggregating leu than S200 in value per indlvidual family member and chari13ble contributions aggregating leulhan Sloo per recipient. (M..rried debton I1Ung under chapter 12 or chapter 13 must include gifts or contributions by clther or both spouses whether or not a joint petition is med, unlenthe spouses arc separated and a joint petition is not med,) 8. Losses List allloucs from fire. theft. other casualty or gambling within one )'ear immediately preceding the commencement of this casc or sincc the commencement of this casc. (Married debtors filing under chapter 12 or chapter 13 must includc losses by either or both spouses whether or not a joint petition is filed. unless the spouses are separ.lted and a joint petition is not filed.) 9. Payments related to debt counseling or bankruptcy List all payments made or propeny tr.lnsferred by or on behalf of the debtor Co any penons. including auorneys, for consultation concerning debt consolidation. relief under the bankruptcy law or prcpantion of a petition in bankruptcy within one year immediately preceding the commencement of this case. D^TEOFr^YMENT, ~,^MJ: OFr^ YOR IF OTIlER TII^N DOlTOR ^MOUNT OF MONEY OR DESCRlMloN ^ND v M.l'E OF rROrERIT Hay 1997 $1,500 10. Other transfers List aU other propeny, other than propcny transferred in the ordinary course ofthc business or fin:lOeialaffairs of the debtor. transferred clther absolutely or as security within one year immediately preceding the commencement of this case. I~farried debtors filing under chapter 12 or chapler 13 must include tr.lnsfers by cither or both spouses whether or not a joint petition IS rated. unless the spouscs arc separated and a joint petition is not filed.) I I. Closed financial accounts List all financial accounts and instruments held in the name of the debtor or for the benefit of the debtor which were dosed. llolJ. or otherwise transferred wllhin one )'ear Immediately preceding the commencement of this casc: Include ('hed.ing, ll,:l\imp. or l~thcr flOan('ial accounts. ..:cnlfic3tes of deposit. Ilr other mstruments~ ~harcs and share accounts held 10 banks, credit umons. pensIOn lunJ~. cooperatives. J!I5ociatlOns. brokerage houses and other linancial inslllutions. ,IMamed debtors filing under I:hapler 12 or chapter 13 mustmdudc mfonn:ltlOn "."oncemlng accounts or Instruments held hy or for either or hoth spouses whether Ilr not J JOint retlllon I~ filed. unless the spoulles 3re separated and a JOint pelilion is not filed.) n'I'E ASD st'MRER fJl. A(TOL'ST ASD A~lot 'ST IJI. 11SAl. OAl.A....'C[ Savings Account, $3,500 "^\1I. A~n ADDRES'i oll\~l1n'1l0S AMot! ST AS 0 OA n: 01; SAil: ORc'l..oSIS<i Farmers Trust Company Closed late 1996 for business expenses mutual funds $1,200 cashed early 1997 for liv1.ng expenses United States Bankruptcy Court Notice To Individual Consumer Debtor The purpose of this nOlice is 10 acquainl you with Ihe four chapten of the redcnl BlllkruplCY Code under which you may mc a bankruptcy petilion, The bankruplcy law is C<lmpUcaled and not elJlly dClcribed, Therefore, you should seck Ihe advice of all attorney 10 learn of your righlS and respon.ibililiCl under the law ahould you decide 10 me . petition with the C<lurt. Court employees are prohibiled rrom giving you Icgal advice, Chapter 7: Liquidation ($130.00 filing fee plul $30 adainiltrative fee plul $15 trultee Iurcharge) 1, Ch'pler 7 is designed ror dcblon in nnancial dimcuhy who do nol have the ability 10 pay their exisling dchlS. 2. Under chapter 7 a trustee takes possession of aU your property. You may claim certain or your property as exempt under governing law. nle truSI~ then liquidat.. the property and us.. the proceed. 10 pay your credilon according to prioritiCl of the Bankruptcy Code, 3. The purpOse of filing a chapter 7 calc is to obtain a discharge of your existing debts. II. however, you arc found to have committed c(rUin kinds of iniproper conduct described in the Bankruptcy Code, your discharge may be denied by Ihe court, and Ihe purpose for which you med the ba~krupley pelition will be defealed, 4. E,,'cn if you receive 11 discharge, there arc some debts that afC not discharged under the law. Therefore. you may still be responsible for such debts as certain taxes and student loans. alimony and support paymcnlS. criminal restitution. and debts for death or personal injury caused by driving while intoxicated from alcohol or drugs. S. Under certain drcumS13nces you may keep propeny that you have purchased subject to a valid security interest. Your attorney can explJin the options thal arc available to you. Chapter 131 Repayment of Allor Part of the Debta of an Individual with Regular Income ($130.00 filing fee plus $30.00 administrative fee) l. Chapler 13 is designed for individuals with regular income who arc temporarily unable to pay their debts but would like to pay them in installments over a period of time. You arc only eligible for chapler 13 if your debts do not exceed ceruin dollar amounts set fonh in the Bankruptcy Code. ., Under chapter 13 you must file a plan with the coun to repay your crcditon all or part of the money that you owe them, using your future earnings. Usually, the period allowed by the court to rtpay your debts is three yean, but n, more than five years. Your plan must be approved by the co un before it can take effect. 3. Under chapter 13. unlike chapter 7. you may keep all your propeny, both exempt and non-cxempt. as long as you continue to make p3yments under the pl:1n. .- ~ 4. Afier completion of pay menu under )'~ur pl.!o. your debts arc discharged cx:ept alimony and su.p~rt parm~nts. ,student loans. certain debts including criminal fmes and restitution and debts for death or pcrsonallOJury caused by dnvlOg while mtoxlcaled from alcohol or drugs. and long tenn secured obligations. Chapter 11: Reorganizstion ($800.00 filing fee) CharIer II is designed prim3rily for the reorg3ni1.J.tion of a business but is ll:SO available to consumer debtors. Its provisions arc quile complicated. and any dr.cision by an individual to file a chapter 11 petition should be reviewed with an attorney. Chapter 12: Family Farmer ($200.00 filing fee) Ch3rler I::! is deSigned to remit family fanners to repay thclr debts ovcr 3. period of time from f~turc C3.rni~gs and is in m.any ways similar In a charter 13. The eligibility requirements arc rc:stncti\'c. limning lis use 10 Ihose whose income anses pnmanly from a family owned farm. I. lhe Jebtor. .1ffinn th3t I ha\'e rCJ.J this nolice. Date - .: () i"":) ~/--;;:~ .~..Ir"_ Wa.lter Crone. Ochio~ 1-97-02002 Case Numbcr ~- ;lo.Q7 If J OJ.[~' , , . - ,. 2. PAYMENTS BY TRUSTEE: From the payments received, shall make disbursements, as soon as possible confirmation, in the following manner: the Trustee after plan a. Full payment of all claims entitled to priority under 11 U.S.C. Sec. 507. Trustee fees at current approved rate (not to exceed 10 percent), estimated in the amount of $4,000 . . , Internal Revenue Service and Pennsylvania Department of Revenue- total approved priority claim, if any, as a result of personal liabilities of the debtors from related corporate filing (#1-97-02000 and #1-97-02201) b. Secured Claims: If secured creditor is not mentioned, this Chapter 13 plan does not address that creditor's claim, and said claim shall be maintained outside the bankruptcy proceeding. i. The following secured claims shall retain the liens securing such claims, without modification. Regular monthly payments shall be maintained outside the plan and arrears, if any, on said claims shall be paid in the following manner: Farmers Trust Co. will be satisfied from sale of residence. ii. The following secured claims shall be modified in ,.-accordance with 11 U.S.C. 1322 (b) (2). All modified claims shall be paid under the plan and said creditors will receive payments from the Trustee: iii. Other secured claims: Internal Revenue Service and Pennsylvania Department of Revenue- total approved secured claim, if any, as a result of personal liabilities of the debtors from related corporate filing (#1-97-02000 and #1-97-02201) Cumberland County Tax Claim Bureau to be paid from sale of residence. c. Unsecured Claims: IN ORDER TO PARTICIPATE IN ANY DISTRIBUTION, UNSECURED CLAIMANTS MUST FILE TIMELY CLAIMS. LATE CLAIMS WILL NOT PARTICIPATE IN ANY DISTRIBUTION. DEBTOR RESERVES THE RIGHT TO OBJECT TO ANY CLAIMS FILED OF RECORD. i. The following unsecured classified/designated for special with 11 U,S,C, Sec, 1322 (b) (1), claims shall be treatment in accordance Said designation does ..... (OJ ..... 1,: _:J t~ .~ Ill! '":" I','. ': ( I" 1...- j (~: ~, C' " lll' , It!~' - 'i i::': ".1_ . L' C':: ~ -; U l.." (.) ..:1 U)>< U) ~U) :;: WZ W ..:1Z tIl 8 tIl o..w 'tl ..... U) ..... 0.. C ..... >< c Z iii III '.... U) III 0 . ...... 'tl ~>< W o::o::C Z C l? ",8 E-< WW'.... 0 OJ Z OZ ..:1..:1 III H ..... H U::> ..:1 l?l?.... U) OJ 0:: 0 H HHo.. U) Q ~ ~U :> mm H W 0 H U)U) :;: :r: Q U ZZ U) E-<Z WW .z 'tl 0:: O::~ .... l?l? >~ CU 0 ::>..:1 .... 0:: I1lZ ~ 00:: U'l . . E-< H UW M ~Z Z m I Z 0 W:;: .... :r:w ~ 8 H :r:::>~'" o..H 0:: E-< E-<UH Woo E-< ~ 0 Z . U)oo E-<U :;: Z~~o OH OZ 0 HO:>Z ,..,..:1 UH :;: . . .... OSEPH A. GENSBIGLER and LIZZIE N. GENSBIGLER, PIa inti ffs IN TilE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW COTTMAN TRANSMISSION SYSTEMS, INC., NO. 97-3577 CIVIL TERM and JURY TRIAL DEMANDED OMART, INC" Dofond,lnto AND NOW, ~ ORDER 'hi. J~ d", 0( ~ of tho within Motion for Hearing To Resolve , 1998, upon consideration Plaintiffs' Motion ,'I I( , to LI ft stay of Proceedings, a hearing shall , . ~!t' lUll a uj/ 1/ , Cumberland County , 1998 at 3 'A) held on the day of "' o'clock -f-.M. in Courtroom No. ,~\ , Courthouso, Carllslo, Pennsylvania. .. BY THE COURT: P.J. 111.\ ''''''I. ~;rlt ll"'I;I II nlll ';'H "'\'j H ~~I"'ll' -'- ,~ ;-.-~ ,', lll.' <.1: l': . l!;t \'l ( " c-: (: \,.,'; , " , , 1 I:'. " ,',1 Co: t' '" {'. " 1- (.1' .\ ..' "'.. "l CH H Z N en.. N en en ..> H ::E: 0 Z "l-1 .... 11l "l 11l 8eno ...::>< '-< 8 ~ H ,,-<en '0 '-< en c a::Z8 Z c ..... >< C1I "l"U Z'~ iE C1I ~ en 'tl ~:::t.LIE-l O"l C C Ul8IJZ :<:0.. "l a:: '.... Z III ZE-tmH ::E: 8 "l C1I 0 '-< ~OOo::I: 0 -;.0 .... H H III U ...:: U>t ~...:! e:> 0.. en Cl ><0.. 8....H H en (/)80::::: "'Z > <D H tz...Zc:::cO o=> IH en ::E: t1.4<czu 0 U za:: en HOH 8UZ "l"l Z 8:2::::0 a:: Ot- e:>...:: .. '0 U ZUlHE-t ~ Q Ht- e:> > a:: c z H"".... OZE-Il,"" 'H 8 C1I H ""l"l u< UcY'l "<D ...::0 a:: Ii! .. I en z 0.. 0.. :x:z .. 8 gj ""'....~ o.."l [S a:: 8<DH "le:> .. :L> en 8U :<: ZO HQ 0 oz 0 HUUZ ">Z UH ::E: LAW lJ~'FICl" SNCUMKER. BRENNEMAN 8. SPARE JOSEPH A. GENSBIGLER and LIZZIE N. GENSBIGLER, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW COTTMAN TRANSMISSION SYSTEMS, INC., NO. 97-3577 CIVIL TERM and JURY TRIAL DEMANDED MOMART, INC., Defendants PLAINTIFFS' ANSWER TO DEFENDANT COTTMAN'S PRELIMINARY OBJECTIONS TO COMPLAINT AND NOW, come the Plaintiffs by their attorneys, Snelbaker, Brenneman & Spare, P. C., and answer Defendant Cottman Transmission System, Inc.'s Preliminary Objections to Plaintiffs' Complaint as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5, Admitted. 6. Admitted. 7. Admitted in part and denied in part. It is admitted that on or about May 9, 1997 both Walter Crone and W. Crone & Sons, Inc. filed bankruptcy petitions in the united States Bankruptcy Court for the Middle District of Pennsylvania. After reasonable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the 10. Admitted in part and denied in part. It is admitted that Cottman purported to exercise its option to assign the lease to MoMart, Inc. It is denied that Cottman had a legal right to assign the lease without Cottman first substituting itself for Crone and assuming the lease obligations. 11. Admitted in part and denied in part. It is admitted that Cottman is not, nor was it at any time relevant to this lawsuit in actual, physical possession of the Premises. It is denied that Cottman is not, nor was it any time relevant to this lawsuit in constructive possession of the Premises. By way of further answer, it is averred that Cottman was in constructive possession of the Premises and remains in constructive possession when it purported to exercise an option to assign the lease to MoMart, Inc. without Cottman first substituting itself for Crone and assuming the lease obligations. 12. Admitted. By way of further answer, it is averred that Plaintiffs' Complaint speaks for itself and must be read in its entirety. 13. Admitted. By way of further answer, it is averred that Cottman must meet its obligations under the Lease and Lease Rider prior to effectuating a valid assignment of lease to MoMart, Inc. 14. Admitted. By way of further answer, it is averred that Robert L. Evans and Walter Crone are not necessary or lAW Of'leI '-, indispensable parties to this a~tion. SNILU"'<Ul. BFll:NNrMAN 1\ SP^RC -3- I I COUNT II 15. Plaintiffs' answers to Paragraphs 1 through 14 hereinabove are incorporated herein by reference thereto. 16. Paragraph 16 is a legal conclusion which requires no response and is deemed to be denied. 17. Admitted in part and denied in part. It is admitted that Walter Crone and Robert L. Evans, the original tenants under the lease, are not joined as defendants in this action. It is denied that Walter Crone or Robert L. Evans are necessary or indispensable parties to this action. 18. It is admitted that Paragraph 18 is an accurate conclusion of law; however, it is denied that said conclusion has any application to this action. Neither Crone nor Evans is an indispensable party. 19. Denied. It is denied that both Walter Crone and Robert L. Evans, as parties to the contract under which the Plaintiffs are alleging a default and seeking ejectment are indispensable to this action as each has rights and interests related to the claim and that these rights and interests are absolutely essential to a determination of the merits. After reasonable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the averment that Walter Crone l^W 0"'1<.:1'; and the bankruptcy trustee dispute the alleged delinquency; SNl LnAKLR. BR~NNrM^N 8:: 5P"Rf~ therefore, same is deemed to be denied and strict proof thereof -4- COUNT IV 27. Plaintiffs' answers to Paragraphs 1 through 26 hereinabove are incorporated herein by reference thereto. 28. Paragraph 28 is a series of legal conclusions which require no response and are deemed to be denied. 29. Admitted. By way of further response, it is averred that Cottman was named as a defendant in the ejectment portion of Plaintiffs' Compliant as a necessary precautionary measure to be certain that Cottman does not attempt to reassign the lease to another tenant. 30. Admitted. 31. It is admitted that MoMart, Inc., is in physical possession of the Premises albeit unlawful as averred in the Complaint. It is denied that MoMart, Inc. has tendered "all rent" since there is no tenancy between Plaintiffs and MoMart, Inc. 32. Paragraph 32 is a series of legal conclusions which require no response and are deemed to be denied. 33. Paragraph 33 is a series of legal conclusions which require no response and are deemed to be denied. L^W OffICI'. SNCUMKrn. BRENNnll\N l\ SPARe -6- COUNT V 34. Plaintiffs' answers to Paragraphs 1 through 33 hereinabove are incorporated herein by reference thereto. 35. Paragraph 35 is a legal conclusion which requires no response and is deemed to be denied. 36. Admitted. 37. Admitted. By way of further answer, it is denied that Plaintiff had any duty to allege whether the disassociation and agreement was verbal or written. Moreover, the issue raised by Cottman is impertinent and frivolous and should be stricken, ignored and disregarded. 38. Denied. It is denied that without such information, Cottman is unable to determine a defense to this matter. On the contrary, Plaintiffs' Complaint is sufficiently specific and the issue should be stricken, ignored and disregarded. COUNT VI 39. Plaintiffs' answers to Paragraphs 1 through 38 hereinabove are incorporated herein by reference thereto. 40. Paragraph 40 is a legal conclusion which requires no response and is deemed to be denied. LAW ,In'':1 'J 41. Admitted. By way of further answer, it is averred that Plaintiffs have no duty to plead whether the disassociation or SNu.nAKU1. BRENNIMAN 8:: SPARr agreement was in writing or to attach any additional writings to -7- the Complaint. Moreover, the issue raised by Cottman is impertinent and frivolous and should be stricken, ignored and disregarded. 42. Admitted. By way of further answer, it is averred that no additional writings are required to be attached to Plaintiffs' complaint and the issue should be stricken, ignored and disregarded. WHEREFORE, Plaintiffs' Joseph A. Gensbigler and Lizzie N. Gensbigler, respectfully request your Honorable Court to deny and dismiss Defendant Cottman Transmission systems, Inc.'s Preliminary objections to Plaintiffs' Complaint. By: Wl? " Rlchar C. Esqulre Pa. Supreme ct. ID #06355 Philip H. Spare, Esquire Pa. Supreme ct. ID #65200 44 W. Main Street Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Plaintiffs Respectfully Submitted, SNELBAKER, BRENNEMAN & SPARE, P. C. Date: August.~;;)., 1997 LAW 011'1<.:1', SNlt-O,'K[R. BHENNl r.MN l\ Sp.\Rr -8- VERIFICATION I verify that the statements made in the foregoing Answer to Preliminary Objections are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. S4904 relating to unsworn falsification to authorities. ,Lu , ' Lide N:4~~&~ Plaintiff v Date: August 2l, 1997 LAW or, I,..I.~; SNUOI\K[R. 8RENNfMAN 8: SPM1E individuals residing at 670 St. John's Drive, Camp Hill, Pennsylvania l70ll. 4. Plaintiffs own the property located at 3600 Carlisle Pike, Camp Hill, Pennsylvania l7011 ("Premises") more specifically described in ~ 4 of Plaintiffs' Complaint and at Exhibit "X" of Plaintiffs' Complaint. 5. On November 2B, 197B, plaintiffs, as landlord, entered into a lease with Robert L. Evans and Walter Crone, as tenant, for the operation of a Cottman Transmission Center on the Premises. A copy of this lease is attached as Exhibit "A" to Plaintiffs' Complaint. 6. The tenant commenced operation of a Cottman Transmission Center on or about December l, 197B. 7. On or about May 9, 1997, both Walt Crone and W. Crone & Sons, Inc., the operating company for the Cottman Transmission Center on the Premises, filed bankruptcy petitions in the United States Bankruptcy Court for the Middle District of Pennsylvania. B. Upon or immediately after the filing of the bankruptcy Petitions, Walt Crone and W. Crone & Sons, Inc. discontinued operation of the Cottman Transmission Center and abandoned the Premises. 9. Following the bankruptcy filing, COTTMAN terminated the License Agreement for the operation of the Cottman Transmission Center at the Premises. lO. Pursuant to the terms of the Cottman Lease Rider, I: \USERS\ PHIL \CAMP _In L\GENSBIG\ PRELIH.OBJ 2 for lack of subject matter jurisdiction. 22. Walt Crone and W. Crone & Sons, Inc. filed bankruptcy petitions on May 9, 1997, prior to initiation of the Complaint in this matter. 23. Upon the filing of the bankruptcy petitions, the bankruptcy court was vested with exclusive jurisdiction over matters relating to the property of the bankruptcy estate. See 2B U.S.C. ~ l334 24. Walt Crone's leasehold interest and all liability associated with that interest are the property of, or affect an interest in, his bankruptcy estate and therefore fell within the jurisdiction of the bankruptcy court upon the filing of his bankruptcy petition. 25. Moreover, as Count II of the Complaint alleges a liability based on a default which arises from and is related to Walt Crone's leasehold interest, this allegation is within the jurisdiction of the bankruptcy court. 26. Plaintiffs are attempting to use the current proceeding as a collateral avenue of relief when the claims and defenses should properly be heard in the Bankruptcy Court. Plaintiffs are not prejudiced by dismissal for lack of subject matter jurisdiction as they may bring an adversary proceeding in the Bankruptcy Court to determine the merits of their claims. WHEREFORE, defendant COTTMAN respectfully requests this Court to dismiss the Complaint under Pa.R.C.P. l02B (al (ll for 5 1: \VSrRS\PtlIL \C^,"'P _ HIL \GF.NSElIG\PRF.LIH.OBJ r- '"" {' t .~ ~~~~ ,\ ~ ~ \~ \ ";\ ~ ~~ ,~ 1':""'.. \ ~ '* -0/\ \1) ~ M \() \\.'1\- "':S./. ,~ ".(\ '\( ~ 1'1 , '\ lI' v. I '" , ( " \- .- . :'1' L_ , =--' ~l' :. l ,) l<.< III III 0.... ..... .... ~~ ..... '" ..... '" .... "'" i:! '" '" 0-1:0- ..... <l) Po.tIl W '" ..... Z E-< "'" .... <l) elffi 0-1 '" Po. C '" . j!;Po. .... r<: Z E-< ... :>[;l <>:w a z O.~H Wo-1 .... .... Uf:: j ufl 0-1t:> III tIl <1; t:>.... > tIl 0-1 l<.Z ~ ....'" .... ~ 05 I "'tIl :>:: . tIlZ tIl . . 0 E-<UZ C ZW ~ U"tl . U <>: 0 Wt:> Z c u ::>c.... ~ t:> HnlZ OjE-< E-< .... u U .... <z . <1;'<>: ~e . Wej "E-< :I:W f-< ::c 0-10- Po..... <>: f-l~ H >- WN $ :> .r<: tIlN E-<tIl ... Z HO::J 0.... 0:0- ~ HUUZ'""l ...,0-1 Utll JOSEPH A. GENS BIGLER and LIZZIE N. GENSBIGLER, Plaintiffs, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW COTTMAN TRANSMISSION SYSTEMS, INC., and MOMART, INC., NO. 97- 3','1 '7 CIVIL TERM Defendants JURY TRIAL DEMANDED COMPLAINT AND NOW, come the Plaintiffs by their Attorneys, Snelbaker, Brenneman & spare, P.C., and aver the following causes of action: 1. The Plaintiffs herein are Joseph A. Gensbigler and Lizzie N. Gensbigler, husband and wife, adult individuals, who reside at 670 st. John's Drive, Camp Hill, Pennsylvania 17011. 2. A Defendant herein is Cottman Transmission Systems, Inc., a corporation having its principal office at 240 New York Drive, Fort Washington, Pennsylvania 19034, hereinafter called "Cottman". 3. A Defendant herein is MoMart, Inc., a corporation purporting to have a place of business at 3600 Carlisle Pike, Camp Hill (Hampden Township), Pennsylvania 17011, hereinafter called "MoMart". 4. Plaintiffs are the owners of all that certain parcel of L^W OtFICI:S real estate situated in the Township of Hampden, Cumberland County, Pennsylvania, more particularly bounded and described in the Deed recorded in the Office of the Recorder of Deeds in and SNElOAKER. BRENNEMAN 8: SPARE the use and occupancy of Subject Property as the sole lessee. 10. On or about May 9, 1997, Crone sought the protection of a federal bankruptcy proceeding and abandoned his tenancy under the Lease by physically removing therefrom and by failing to pay rent for the period commencing May 1, 1997, and the amounts then due as averred in Paragraph 11 her.einbelow. 11. At the time of the events mentioned in Paragraph 10 above, Crone owed to Plaintiffs the following amounts under and by virtue of the above mentioned lease: $34,921.16 3,775.56 142.32 $44.137.40 12. Under the Lease Rider and by letter from Cottman dated A. Unpaid rent: B. Real estate taxes: C. Sewer charges: May 21, 1997, a copy of which is attached hereto marked "Exhibit D" and incorporated herein by reference thereto, Cottman notified Plaintiffs that it had terminated its License Agreement with Crone. 13. As a result of its notice cited in paragraph 12, and pursuant to the terms of the Lease Rider, Cottman substituted itself for Crone under the lease and assumed the obligation thereof. 14. The items mentioned in paragraph 11 above are obligations of the Lease. 15. On or about May 24, 1997, Plaintiffs gave written notice LAW urnc[t; SNEUlAKER, BRENNrMAN & 5r^RE via counsel to Cottman of the items owing under the Lease as set forth in paragraph l1 above and advised Cottman to refrain from attempting to possess the Subject Property. -3- L~' .....---- ,-,,'-'-'" .....--.........-------..-. ~~ .' 14.."",. . r".," l.r 'oW s..w \or J.... l', l"",II ....._. Ul6 W,l..t 51., P\1t.. , !I ~, II I I ;1 II 17tll day of J,)l,,,_,'. in the year of our Lord o/le thousand nine hundred :'EV!tJT'I- €.r,wr ml!tlUe~n MOBIL OIL CORPORATION (formerly named SOCONY MOBIL OIL COMPAN, ' INCORPOP~TED, which name was chang~d to Mobil Oil Corporation on May 19, i 1966), whose address is 150 East 42nd Street, New York, New York, herein-:, after referred to as Party of the First Part, , AND . . . JOSEPH A. GENSBIGLER and LIZ:IE N. GENSBIGLER, 30 North 36th Street, Camp lIill, Pennsylvania 17011, Parties of the Second Part, mitnr51u~tl1, 111<11 Ih. ,.Id p.rl y ./ ,h. fir.. p.r', /.r .nd In """,/dor./lan ./IM ,u,,"./ EIGHTY THOUSAND FIVE HUNDRED DOLLARS ($80,500.00) --------------- it ...11 .nd Irul1 p.1d by ,h. laid uall", and Je!lury oJ ,he" pr~'en.tlt 1M has conveyed, rem/,rd, does convey remu" ./'h. ..<ond patl,.nd /a their heirs /""'/111 m....,. ./'h. Unlt.d 5,.,., ./ Am"I"", I. parI les o/the fecond parI, 01 and before the 'fcrlpl lIJ/.trto/ U Mr,by .;J':kno~ltdCed, relea,ed and quil-clalmed, and by ,he", pre,t"", ,.dra.. and qui'-cltJlm unlo "u. .old parI ies i I, I I I , i il .nd .u',,,, /.r_r, AU THAT CERTAIN piece or parcel of land, situate in Hampden\Township, C~ber1and County, Pennsylvania, bounded and described in accordance with a survey and plan thereof made i by D. P. Raffensperger, Registered Surveyor, dated May 29, 1961 as fo110w8. BEGINNING at a railroad spike placed at the intersection on the Northern I right-of-way line of U. S. Route 11 (50 feet wide) and the Western right-: of-way line of 36th Street (60 feet wide); thence extending along the I' Northern right-of-way line of U.S. Route 11, South 87 degrees West 130 feet to a stake in a pipe at a corner of land of Sun Oil Company; thence extending along said land of Sun Oil Company, North 3 degrees West 200 feet to a stake in a pipe at a corner of Lot No. 15 on the hereinafter mentioned Plan of Lots; thence extending along Lot No. 15, North 87 degrees East 130 feet to a pipe on the \,estern right-af-way line of 36th :i Street; thence along said right-of-way line, South 3 degrees East 200 feet to the first mentioned point and PLACE OF BEGI~~ING. ,~ I~ I! :11 II! 'I. 'II H II, 1:1 I" Iii " . -~ BEING Lots. Nos. 13 and 14 and the Eastern 10 feet of Lot No. 12, Section "A" on the Plan of Lots entitled "Hampden Gardens. which said plan is recorded in Plan Book 4, page 32, Cumberland County recorcs. , :1 " I' :: " I . . . { '=" Continued - ~BOOiW27 -;:''-cC 615--"-"'~~-"'-'" ~~,~ EXHIIIIT "X" ~. I~ .. i~ ':1 ~I II. 'Ii I~ 'Ii I i . ~ I~ I~ II - . . lltDgrtlJrr ..lIh aU and "n,ula,. 1M 1I"'1MII1I, hnedlLa...nlI and .ppwu_ """"1U\lo b.lon,ln,. 0' In an1 ..". opp.rl4lnlnr. .nd Iho '_'10..., re,""","N, ,"nlI. ",... and proflU IM,.o/, An!! aua, aU 1M .'101., rl,hI, IlIlo, /nil...." P'OP"'1, cUrlm and dommtd ,,"""_. ... ...U In ""' GI /n .quItr, o/Iho ,aid pan YO/1M flnl port, 0/. In, a, 10 1M ab.",.,u,crlbod pre""'", and 0Nf7 pan and par(tl thereoJ, l-tlth Ih. appUrUMrKt.. i!a haur anll fa JlnJ!! aU and "n,u!.:, 1M aba......ntIonod and d.mlbod p,",n"", lo,oIhor ltl,h Ih. appu,'...n,.., unlo lho ,aid pan leso/IM ,.<ond port, MOBIL OIL CORPORATION /' 'J f} BY i.',', (.'c.l.l G. F.'. LE\VIS v.~~~'o,,;:i~'~;~~~;1lJ 0'1 "'S'T '[,.,..." F.!J::"...::CJ C. D,!,rmt"; , .t'lJ . oJ ..":,1..... ~ra1rll anllllrllurrrll I Of TIm nmEHC'I or va: r~~ I I' I' I I I '[ I II I '.....~ . ~.~.~, Cud-rh..I1/4 I' c:"::~~::Y.'~ I School Dill. Cumbo Co., P.. ~ R..I [,I," T""l'" Tn 1:.'- l..1 EII,I, TUIl,'" T.. I' 0". ~:.~r.-?r' A.I. ~~~.~~..-.3X:?4" A.~~.~.'?IJ.. , . . . V..... eo- V~.....\\.IIn-"-"- "C_", C.. Oil.. e.!. ....f. ~ C",,,,". C.. Oilt. C.I. "''ilt. ~ N COMMONWEALTH OF rENN~'I'~V^NI,\ = ~ 1i~;'::~::I:F iEls 0 5. 0 0 Ii o P.I.IlIU = !I I! I I II 1'1 I~ 'I I: Iii, I~ I~ ,il " !io .. '. Camman..../th 0/ Pon"",loon14 } C / SS. au.,y 0 On Ihu, 1M O/licer, dIrr 0/ .19 . bo/are mo, Iho undoNl""" . "",,aMU1 appeoml hna..n 10 ... (1OIu/adarll1 pro..n) /0 bo 1M p."an ..h.,. no... " (oro) ,ubwi~d 10 Iho ..1IA1n In"nlmenl, and a,hn_W,td IIurt M utculod 1M u'" /0' 1M p....po,.. IMre/n tanio/nod. In mitnrna mlJrrrnf. , ht,.unlo ,tI my/aond and offid41 'HL BOoN/27 pm 617 EXHIBIT "x" ~ Ii :1 '1, " it I:; 'I ':1 I~ . . ' .' At a duly constituted meeting ot the Executive Committee ot tha Boerd ot Directors ot MOBIL OIL CORPORATION, held et 150 Esst 42nd Street, New York, N. Y., on the 31et dsy ot October, 1977, at which meeting a quorum waa present and asaented to their paseage, the tollowing Resolutions were edopted: RESOLVED, that e resolution edopted by the Executive Committee ot the Board of Directors Of thia Corporation on July 12, 1977, granting authority pertaining to the execution ot inatrumenta to J. H. BARRY, W. F. BRANN, D. J. D'ALESSIO, R. C. DRUMMOtfD, R. H. GARDNER, H. H. HINKLE, C. J. LAUSE, G. F. LEWIS, W. F. LUCE, F. W. MILNE, J. D. ROXE, F. C. SEIBOLD, JR., and J. C. SIMCOX, be and the Dome hereby io revoked, effective at the c10ee of bueineee September 30, 1977. FURTHER RESOLVED, thet effective October 1, 1977, J. H. BARRY, W. F. BRANN, D. J. D'ALESSIO, R. C. DRUMMOND, R. H. GARDNER, H. H. HINKLE, C. J. LAUSE, G. F. LEWIS, W. F. LUCE, F. W. MILNE, W. S. NORTHUP, J. D. ROXE, F. C. SEIBOLD, JR., end J. C. SIMCOX, Officere of thie Corporetion, snd eech of them, be end they hereby are suthorized to execute, acknowledge snd deliver sny snd sll inetrumente in the nsme snd on behslf of this Cor- 'poretion, including, without limiting the generality of the toregoing, deede, conveying real eetate, with the eame force snd effect se if epecitic suthority were granted by the Bosrd of Directore of thie Corporstion or by the Executive Committee of said Board of Directors in eech psrticular instance; snd the Secretary or an Assis- tant Secretary is hereby authorized to ettest the execution ot euch inetruments and to atfix the Corporate Seal thereto. I'f.T,~',"O:l c. DTt;:rs;;r AsB1stant Secretery ot MOBIL OIL CORPORATION, do hereby certity thet the foregoing is a true copy tram the recorde ot the said MOBIL OIL CORPORATION, and that said Resolutions " - are now in tull torce and eftect. IN TESTIMONY WHEREOF, I hsve signed my name snd affixed the Corporate Seal at New York, N. Y., thie 17th day of J anUlll7.. ,19U. ..........'n......~. -I ,\;.:...."- /) .....: C\ " '. ' .: ..... . ~I'. ........ \ '~. .~~' ~. ," .it-:: ,,'S.. ,\ " '\" <:~::.. ~:- :-0 ., ~ .... i." 6, ......g ...:) t '\{~,.1-!OC ,.'!/rA '.~f. . 1 256 -""...j}'I"-fII",. '. -~.. ..0\: '7\~.':,/ j;1!~ Ass s ant Secre ary BOOK W27 pm 618 "x" L'illIJ\ I T STATI!'.: 0' Ntw YORK } COUN't'C 01' NCW YOlllC SS } 55. 17tll :lOSUH ZOUlOWllI ,h, undml~II"! OfJircr, pm.,,,"ly .pplOred G, F.. LEWIS "h. a,kn.ltl.d,.d 1,IIn,,"t. b, ,h, ." ".. , , .1 MOBIL OIL CORPORATION V.UI"~'lIlhO CJII'lo~111 . G torporallo"" tlnrl 'hn' h. a. ,uth 1'\/'" .:....1 1..:,;';.', . b""t: au,horb,rl,o do .0 .~ttut.d ,h. lor'~oin, ',,"rum,"' for ,h. I'u'I"'''' Ih.rtl" conftlln",J by ",nln, ,h. "amlt oJ ,h, corporation by hlm"'1 (II "",/) a. ...", ~., _. l. '" t j,\VTHU"ltU' Olf,~,,,, ,J,rY#~Iie;,J:ff!a2i~/!.1 h."unlo.., my hand.nd oOitlafZ' L . ~ .(j.r.....'.\ hl.n " 1_ :'~. .'1....'....: ''i' ~d~' 1'; i ~ :.\ . ! U' . : l\ i .ID.u~. JOLNOWIII ~. ..' I Co ....\-. : N...,... ,..~ ", SI.I, .1 lie." .,.. ...;/ . ~"I~"l N.,_ 41,"10"0 '. ~." ....;..... ,. . O"".r.h.j h 0...... o..-+, " . ,',,,, .....1 \ C....I~ul. "'toJ,~ N.,. YIP. ~ ......~-,;.I..,. ''''1'Il L...... ,",tiC" to, I'" "", 011 'hLJ, t'" J"" ./ .J.nuary 19't ,b,I."... I' ,v. I~ . I'~ ~ 'I~ '-' if ~ 'I" I ~. I' ~ '~ ~ oj .. . ~ (j iJ i , ~ '. IE 'II I I Ii I' J.. . 1:1' I' " SllIte of Pe""lylVonl~ I 59 County 01 Cumbe~~na Qeco,aea ,n the oM,~ IOf the ntC1lllllog uf Deeds ~l".....~n~to' Cumoerland U ty, PPJ /r- ~ ~~ Y:l. Vol P~ge ,6.62. wItness m~ tt~ tlr'ld / tflce at . ,/ Cllrtlsle, Pa, tillS .7<~ 6~ "920 ,.-~ j ~ ~ ~ i ~ ~ il~ j ~fJ' ~! a. I Q J "',' i:::- ~ -'; .l! ..... -~ ' " Q 'll::. .' OQ . n"',.~I',,~ ~ ~ C ~ ~ ~ . ~ . .. I .. .. .:I I. eoo,(W27 P^Cf 619 ~-'" ._---"".----~~--~- i EXHIBIT "X" Commercial .Lease ""',. f\ ,.'}<'J(.. 78 Q lIS . I'rrrlllrnl oll.rn.. mode Ihi. , doy nl Novemher A.D.19 ;;) I,essofft' (Jrlwero .JOsl:m ^. m;WlIlrr;J.I:R nllll l.ll'.ilIr. N. r;I:NSIIIGI.I:R, his wife, / n I'. oor 1,",1, ond ROBeRT L. I:VANS and I~AI.TI:R CRONI;, Lessees olu.. nlh.r port, ;ttlilnrrndl/. thnt the ,nld first pnrty In eon,i1lernlion nllho "'nl_ nrd ,'ol"l'onnl, herelnnlter menlioned'ddo d ' , . . C~nter an USe car demise nnd Irase unlo the saill serond pnrly. to b. llsed ns a Cottman Transmission / lhe prem,.e. .,tuote i" the Township of Hampden Cnllnly 01 Cumberland nnd Stnte 01 renosylvnnio, de.cribed o.lnllnw., 10 wit: Being all thut eel'tain lot of ground und improvements located thereon being known and nwnbered as 36UO Narket Street, more particularly bounded and descrihed in a certain legal description a ttached hereto marked Exhibit "An and incorpomted herein by reference thereto. mo ~1U\1r nub to ~t[1lh untn the RAid second pnrly, f1uhjr"ct 10 thr conditions or thi" Agreement, (or the lenn beginning 00 Ih"firsl;lny nr December 197B ,nod endioR 00 the 3ls t ,lny nr .1anuary 19B 9 , ;3ln Q;nnsi~rrnliol1 01 ~t1l/icll the .nid .econd pnrl ogree Ilmt they will pny In the .oid lirsl pnrly lor Ihe u.e ol.nid premise., the sum alOne Hundred Thirty-two Thousand Dollnrs nnd other conoiderotion hereinnlter mentioned pnynLI .I os lollows; viz, in monlhly inslnlmcol. xt as set forth in the Addendum hereto, 8ollaxocin odvonce on the lirsl doy 01 ench cnleodor moolh durioR Ihe lenn. TilE DEMISE IIEIIf:IN CONTAINED IS MADE AND ACCEPTED ON TIlE FOLLOWING CONDITIONS 1. No WAste shnll he commillrd; ond ot the end of 111I~ floid lerm Ihe d("mi~ed premises shllll be delivert'd in a!lo good condition all at the commencrment Ihereof, ordinory wear and t~ar nnd unavoldnhle dnmaJ;e hy fire, tempest and lightning rJ.cepled. 2. The rent reserved flhnll be rronlptly paid on the sevrral days and times hNeln spt'clfled without deduction or ab.lemenl, II the re!lldence or principal oHiee 0 the Sllld Lesnor. 3. U the Le~see "llOulll remove or prepare to remO\'e, or attempt to remon' from the premises hereby leosed before the explr.- tionof the termor ot nny time during the continuance of this lease, or if the Lr~!'>et" sholl be In ddouh In Ihe payment of any Inlltall- ment of rent for the period 01 trn doys, or should there ht' B Jdault in any of tl1r C'o\enants or conditions as herein contained, then In that e\'entbrent for the term ollwelve 1TI0nlh~ at the rale \\-!.ich it isthen Ilue nnd collt"cllble under the terms of Ihlllleue ahlll Immediolely ecome due nnd payable and shall be collectible hy di!'>traint or otlH'rwi!'>e. 4. At the expiration 01 Ihe lerm Ihe demised premisrs will he restored nt the option or tile Lessor In the some condllion In which they were at the comlnencrmt"nt of the h'rm, And the cost 01 thc said reslorntion 511all be pnid hy th~ L~s"~e, whleh cost will be Ireated as addltionBllronllJut" nnd owing unllrr lh~ lerms or the Irn~(". &,-,^-1roh!+ogoo()lo"w-t.,'-clt...l.~~~.1.~..d- ~l~ ""''''fn-ol~W,", .4n...... ..1wHl-~a. "\4l~ "Ll.b. Wm,gL1.bJ.g...la:u;.aJar..a.llIl4h..JL:l. l'eNf,r'1I.* HH' ~ttl-~A&w.llJ. +ilto-ll- J.o. "'M.'" tlJWS- fH"'1<-"f'~ 4oo..U -4~ ""~""Ri~,..;... ~ ~~H~-4__ ~"'a.nl..gL If.aae.t 1'P'O"I~ed ~wt"~,..-tlotot '"tK'ft"MH:Wa.J~~J. be-1tt-th<-R1*ie...&f"'fte-hf'lof~M.. 6. 1"le Lessor shall nol be liable 10 the Lessee for any damnge: which may he CAused to the Lessee by Ihe failure of Ib~ Lessor, if said lailure is not due to any IAult on his part, 10 gl...e possession of the premises herein demised, at the lime agreed upon. 7. Said Lessee shall not carryon any unlawlul or immoral husinC'!i;s In or about Ihe demised premises, and sholl not canyon Bny business .....hich will endanger the building from fire or cause a forfeiture of any fire insurance Ihat Ihe L~ssor has or may here- after ho...e on said building, 8, The Lessee a,;rrrs to pay nil hills which may IJl~ inruuf"11 for Ii~hl, Ilt'ol or power u!'>ed or consumed upon the demised premis~s, Dnd Dlso all bills (or woler rent which may accrue fot watN used durin~ the term 01 the Ir.ase. The Lessor Rt.sll nol be responsible in Dny way in the evenl Ihal the supply or Ilelll is cul orr hy r('ao;on of any cnuse beyond Ihe control of the Lessor. And the Lessee Iloes herrhy rrlrasr the L('ssor Irom any Ilama~e ""hich m.I)' f1'suh to him hy frason of the lailure 01 the supply of heal. Should the Le!'>see loil to POl)' nn)' hills as aforr~nid. the lessor s11RII h3vetll(' riJ;ht 10 /1.1Y the same, Bnd the amount as paid "hall be charseable to tflc Lt"ssee as additional rent. The Lessee ,,{;rees 10 ht~p the plate g ass insured 01 hi!ll own risk. 9. The Lessee opees 10 keep "u! premises in Q good conllition 01 rt'f3ir. All rrfuse 01 any kind shall be remo\1!d from Ihe premises at the cost of the Lpssee at leost once a week or oftener, if nt"Cl be. All snow shall be cleaned oUlrom the lilrfewalks brfore it sholl ha\'e frozen and hcC'ome hardent'd. Should the Lessee lailto comply with the provisions of thiPl dau!!e of the lene, the LesPloor mayenler the premises nnd make said repairs or H'IlIOYC snill refuse ,lOlt 110 011 other things a!I herein provided to be done by the Lessee ot the expense of the Lesser, nnd soid rxpense Ihus Incurred may ..Iso he collrcled ns additional rent under the leo"e. 10. In the event of the filing 01 0 pel it ion in hanlruJltry. whf'tlwr \'ulunlar)' or involunlary, by or agAinst the Lessee herein, there shall become due immerflntely upon the liIinf 01 said ptlltion, rent for l\'orln' l1lonlh~, at the mle Ihat the ftnt 15 then payable, under thisnE;Teemcntol lea!'>etond tfle Lessor sliA) l1Rvcthe lurlher ri,;ht in ~"id r\rnl,IO forft"il And lerminate thIP, lease. The R8ld lorfelture 10 br errt"ctrd hy giving nolice in ",'rilins to Ihl! Lt!'>s{,(. ht'ft'in or 10 llit' per~on Ihen in C'harge of Ibe clt'mised pft"mlae& Should an execution issue ilr,alnst lilt" I.essee oul 01 any courll Iwelve months' rrnl ~hl1l1lht!reupon hecome dUf" and owing. 11. In the c\'rnt that lilt' premises occupied hy the I.t'sst'e stlilll durin~ ..aid tt'rm be destroyed by fire, thNehy mRking the premises unlenantoMe nnd unfil for orcupancy so Ihat the o""nrrs lll('rrof tlt"f'm il advisable to construct 8 new building. the Lessor he~ in shll.Jllhereupon Ila\e Ihe right to ('once! and terminate lids Il'.l~r uJlon ~hing fifteen days' notice in Vt'tiling to the Lf'8See herein. and the lerm of this Il!a!'>e shull thercupon ceno;e Dl the cXlliriltion of fillern Ilnys aher the upiration 01 said notice, In the event. however, ltlal lhr said huiMing shall be damaged hy lifr, bUl not dr!'>llo)'rd. thr Lt'!>sor will therrupon cause the p;eme 10 be repaired anel reslorrl! to its form"r ['ondilion. tht"Y to Rei with tllr t:rralest pos' ihlt" t1i1i~ence, and If the said lire "hall have renderrd the premip;es unlrnnnlablt'. payment 01 rrnt 1l1roreunder shall lie sU!'>JJ('nded from tilt' time when Ihe l.('sser hf"rrin "hI! notify the Lessor of !'luch condllion. until such lime a~ Ihe building Is so rt";l:ti,t"d nntl n~nin rf'ody for occupancy, and Ihe Lel'1isee herelo agrees thai In llle ('\'rnl Ihal Ihe huilding shaH br so partially dr!'>lrO)'t'J hy lirt' M to render RAid Irpolrs nf"C't'utuy that tht' said Lessor l'ihallllirrt"llIJon ha\r lll~ rit:hl throur.h hi"l s~r\'Rnt.. and nf.';t"~ls.. Rnd lhnt Ihr stf\'anls o~d agenl!l of Any contraclor emploYf"d by the l.es!'>or shOll ha\lt. tl\r.lI~ht to take pUS!'>(,sslon .of tht' pTeml;"irS for thr purposr o~ mnk,"g !'iuch rtpairs, and tht\ 80 tdlnK of po..~es..lon ",hRII nol lIr nn t"\lrIIOn of Ihe I.rssC'e hNe," nnd ",llUlIln no l1Iannrr nlft"ct Illl!'> trrm of 1t'1I!It'. I~, Thr ~nill1.rs"l'r IWlrlly ('onff'S~H'S jUlI~mt'nt for ltlt' Irnl TroSt'rH'd un,l"r IIlio; ll,:Trtmrnl of ItaSf', togethl'r with IIn 8110rnl"Y fee 0 t(.JC:?"fN ('rnl.lor. I 01l"I:IIIIn, an,l, l'"'cll~lon wny I,t" i~"llrtl Ilwu'on from lime I~l timf' for Rny lronl Ilut' and owinf{ unlll'r thl. Il'a~e, nnd JUtlRmrnl In "p'ellllt"nl il'" Ilrll'ln pron,lr-d 01<1) t,1' "nlrrl'rf ('oneu"t"nll)' lht'fewuh. 13, HThe Lessrr Ilorol( hereby. uron bre'ldl uf .lOy lJi \i.,. cOIHiiliuh.. VI 'U~t'.lill.is 0: thi." Ira:'i(' d.,;:i~1\ the ed"ir.:!11~fI!' N .ny renewal, and lll!'>o \\h('n Rnd liS soon n~ the lrrlll ill'rl'hy Ul'atl'lt or any l'\lt'l1sihn or Trnr""allheTrol ",hall havr nplrf'd Ilpen Ihal an amicable action 01 rjrclmtnl may br enlt'H'11 by Ihe Prolhonolary of Ihe Court of Common Plras of the Counly 01 CW1\uerlnnd as if 8 complaint in ('jl'ctment has bef'n filed by lhe t.f"~sor n Plaintiff n,;ainsl the Les!iee as defr.ndant for .11 ,,"II Plln~uta' the property herein dr!'>cribt"d and as if said complaint in ejr.rtment hod t.ten duly foer\'l'd personally upon tht' l.ufit'e hy Ihe Shrorlfl 01 uid Counly wilhin said Counlyand had been duly rclurntd by "llid Sheriff fit"f\lrlt prfsonally Ullon said Ll'"srr\and Ihe uld I.,.,uu.e hereby aUlhorius DmI rmpo....ers any allornl'Y 0' any court of record 10 oppr.r for Ihe Le55l'e in !IBid amlrah f! action of ,.jronml'nt Plnd confro"i!l judr,mt"nl tllerrln In fuor of the lessor Rnd agaln~t the I.t'~srt' for said prl"mi'lt"!I and .lld Lr~"f"t" fUllh,., aulhorllt8 the ImIL"I!iatt' i....,unncr or 0 "'tit of r05~es~ion upon a praecipe IhNrlor by the plaintiff's atlotnry InJ thf' 1.1"~l\r'f' ht'frll)' ,,-..hr.. any .nd all right of fitay of l'1CC'ulion and rt'leose9 10 Illf! I.r!'>~or all ('frorl'> nnll drfl'rls whal",ot'~'f'r In tnt,.r1nc ...ilt at-lion III JUll,.;- mt'nt or In cau5in~ said MillO Is~ut' or In anYl'OCf"t'ding lht'fton or ron('('tnin~ Ihl' !<tnml' and ilf;rte~ tllll no ...rit 01 Nro" ollJt"rllon or f'xC'eption ,;llillI he lI1a,I,'or Illhn lhrrf'to, all if aftt'r eXf'culion nnd ,("tulflof tht" ....rill..rdrorrnllanl ,.)loll,r..,.nlt"r inllljltlul"ulon, tlle prolhonotary, up(jn pfaedpr ane! Rffiduit l'if"llin~ forth tht" ritts, filrod '" il!.in llill"f' yra,,, ahl'r lht ftlurn of tilt' ..rlt "I'on ",hkh roxl"cution \\Uli ('omplrolt'd I'>llalll..~uf' II nf'W ",rit olll(l~...t~,.lon,lI 14. And flUtllt"', it is or,ll'rd Ilnll unllrrslnnd tl18t Illr I.r"~or, Iii... 11l'il", IIr u....ij::u"I. "IllY rlllr, IIII' 11If'lll;""" 11I'lrol.y lrollvtl .l Any lill1f' IluriOJ! Illro "'lIn. dllll'l in Illr P"'''''IH-l'' N 1I1,,,rl1"ro oJ li,t" ...till 1.,.....,.1' lor 1I,f' 1'11I11II"r uf llvroll,tlllill~ ,,1,t"II,r, lhro ,..Id 1,'rol1ll~f''' IIrt" krpl in J;IlIHI tlllll'I .11I11t'pail lll/,i,,~ bll..illr~s 1110111'1. rUIII,t." ll"ll IIII' 1.1'''''llllro~r'\ro.. Itlro lir"l tflIU"ld", . "tuf frAI Of llialr" Llf,l 1111(\11 l1\r ..nilll'rt'lIl1"ro"i, An,t In ..lilI'" ~;1I11I' III l'I""I'I"'liu' "'II.lnl.. Of I'll~rl". IS, .\1I11,u1'''C'''' Ilr il1j-lIfil'l( tlpllt" In II... ..ni,ll'lt'l1d"ro"i Illhrr lhan lhl>"" '.t\l..r,II,~ lilf' .Ilull,y 1I1,li1l1UV wrM 1IIIIllroAI III t'r Ihe ad.. or, oud....ion III tI". 1.111' lulll .,h.dll'I' 11'1..,i,,,.,1 h} lllro I.t....,'.I. I'l.i,.in. .\n.11I1I' I t'''..n' 11'\I'llIlnl.. flllIl II,:".".. IUIlI,llro ..."i,l I('pall. upnn 'l\1' ,L,~..' "Iolil f" ..i\l n III J,.,n h~ I \I' I ,...tor, .Hul if 1.1' ..h,111 ''''!,,11'' I 10 n .,\.. "'Ii,lll"p.dl" III t 11llllll"'H'f' In 1IO.llr It,ro ...ml' 1'lollIl'lh 01 "ill,ill I'" 1.11" .11" I ",li,IIIl'ti... .1" ri\t'l' lu ltill', 1111' (,...., 1..10,,111,\\1' \111' IIj.l<1 In 1ll.ll,. 1111' ,.aid lrop.cll" III II'r r,l'ro"'lro 111111 1'11"1 11111... I. ". " I l!" .,' ,.,ml 11."" "I 11'.\\ I" lull" 1,.,1 .\', .' 1111 ","d ,,-,,\ .t" lllil'!' I", II,r I""lllh '01101. i!lr rill' .!.llro ,d t ht 1'-,1 "II"I..lil", "".1 II II t .,j I t"I" 11.1' ." I",..!<- ,II tI.r' "'l'illlli"'1 "I lI,t. 1"111', 11\1'11 II,r In..1 "'I !l.I,/r 1'''1' I.r l'tllI(" lro' I,~ II.ro IlIndll1ld .... nn 1I,r.lllllllI,cll.nl 1'1. II, ,.... ,.111,1' l'll'llli'",,, tlllf illj:: till' 11.11It' 11'1"" lC. hnd the Bald 14eft!!.!e hefllby accepts nollce 10 Qull. relno,"e frolll, nlld Bunender up Ilusseslllon of Ihe nld demised prcmlsee to the Inld L'![lor, hll heJrs or unlelll, I\l the l!xplrntlon ot Ihe snld tcrm, whene\'er Il WilY be determined, whuther by forfeiture or olherwlse. without ony tUflher no lice ta that onecl, aU further nollce being hereb)' wah'ed. And 011 failUre 10 pay rl'llt due, for Ihe SIUl.CO at ten dn)'s besides Iho dlslrua. or UpOIl breach of any olhcr condlllon of this leafle, Ille 14e~5e" flhall bc It non.lcllnnt, subject 10 dJRl1oSScsftlon hy the snld Lesnor, without further notice or proces! of law, wllh fl'lf'n5c or error nnd or dalllaCt!s, oud tho snld l.t'slIor lUll)' r(".enler Iho Ilr('Jnlscs nnd dlsllOllfte8a the 14cRl'cC wllhout thereby bt'culltln&; u trt'lIJ1:JIISt'r. And Ihe LlJSSeO hereby wnlns the bUlIcltt of nil ('XCJ1l11t1ulI lown at this COlUlllollYo'f'nllh thnt now nre III fa I-CO or hID)' hrrcnfler lie In force, or III nil)' action or DcHotls that ilia)' Rccrue 011 this contract, nnd In any dlslrcn or dlRtrcss IhRI ma)' be mOl do for collection of tho whole of flald rcnl or nn)' pnrt theft'or. Walvlnl;' alBo the benent of Ita)' of exerullon, Inqulaltlon, extel1tllol1, aud nil erron. In nil IlrOc('(>dln.~ft nrlhlllr, out ot this lNule. 11. No IIl1owca!le, alcn or hanclng or protrullll1C !'llcn or Ilf'rlllnnenl uhstructlon of an)' kind ahnll be kept or matntnlnt"Ll by the 11'IID.nt Oil the ft'ti('fvnllon or sldewolk In frollt or Ihe demlscl' Iln!lIIlsl'S, rmld RIIRCO to be uacd only for IIUrpOIll' o. Increal and ('crell, 18. Tilt. SI:Jrt)' ot tho second Ilart will bur, Il:J.Y nnd cllarharJ:c whl'lI and as the same hccomo due nnd pD.)'obJo nil Judg- HIt'II1s nlld lawtul dlllma for dnmuges or oth('rwl50 ncnlnsl lIald Imrtl('S of Ihe fiut (lnrt nrls,ln~ tram Its ule or occupanc1 at sRld lrASf'd Ilrrll1l~l's or Ihe slde.....alk In front Rud side of sR1t1 ~1f('mI8e!l, nnd .....111 1I(\6UIII(' Ihe burdl'n nnd upenlO or de. t..lldmp; all Buch lIulta, whether broughl beforo the cX'IJrnlloll or Hila 1t'lIBt! nnd will Ilrotual, Indumnlfy ODd BIlVe hormlen tit" 5"ld Ilarl)' ot the llrat part, hla ngellln, len-oula, rlulllo)'t:'l'1I and ImbUe at lar,::o by reason of or on occount or the UIIC or I11l,ul8 of tho I'(l'mbes hereby l(lased or the IIldcYo'nlk In front ot Ihe nld Jlrt'mlulI, or any part Ihrreo', dUD 10 the n("IeU. BenCe of Ihe lence or hi. Rcentl. HI. And In conlllderatlon ot lIecurlng the within leaso at the abo\'c IItnlcd rcnt. RRItI 140SBeo doos hereby relt'Rllt' nnd dl!lchnrKl' said I,rlsor, his heln or Bsslgnll, tram any nnd all liability for damnge thai mny rnull froUl th" burstlnr;, stop. pnrr IIDd h.!akaRe of any wnter pipe. gall pipe, lower, bnsln, water-clollet, sh'nm Illpe and drain, RII" troro all liability for &0)' nnd :\11 dlllUilr,e cauled by the woler. gas, sleom. ""Dsle and content. of aald wah'r plpCll, RU plpell. 1116rlm plpu, leWen, baalnll. wOler.elosch alld drain.. ~O. It I. expreuly understood by the PUtlclI that the whole acreement Is embodied In thl, agreement and Ihl\t no rul or Item I. omitted. : 1. The sccond porty doell alllo hereby wnh'c nny nnd all dcmnnd tor pl1)'nu'nt ot th(l rrDt herein pro\'lded for, rlthor on tho day due or on BDY other doy, either an tho lond Itself or In Dny other plnce. and aertell that lIuch demand ahall not be a condition of re.enlry or ot recovery of possculon without leglll procells or by mrnna of ony nellon ar proceedings whlltaoc\'cr. The terms and provisions of this Convnercial Lease are continued on a certain addendum attached hereto entitled "Addendum to Convnercial Lease". \~hich Addendum is incorporated herein by reference thereto as the provisions thereof were set forth at length herein. WilDen the hands Bnd seal. of the parties. the day and year ftrst above written. IJ / ' .................~~((A?lfrrb!}!t!. .........~ ......... .... A:'L':!''::'':-ff.., f:rG~b . i..l~'-'''''' ~ ~zz e ". ens ~g . // 'l ;(_ -' rc;r..." , z:.' / // --/ .., (C;:p.nl~ ......,!.ltJl:le'l'l: r::'Ev~rt!l/ .,..,.-.r........ .~ . ./' . Ql .... 'rl ~ r'. \~alter: Cron~ (S EAL) Ul . (>.l 'tl :E "- In c ~ ~ III 't;l: . C;' ; '" ~ ~ t>: Ill: co co' . FL w w " co. .5 ...:i ...:I en 01 01 l.:l t:l Z .-I: .-I, t ::: H H ~ . t.l I'l I'l ~, 1:: . ., E ,t:) c .. Ul en .-I: 0 .. ~ .E ffi ffi ::: 0: '=0 ::I (T1' ~ S .~ ~ . t>:: ... ~ c .- - l.:l t:l ...:I u: Ai Ql' ~ . \..l t.l iO ~ 1l' Ql' H . ~ t>:: 1l ;;; (>.l M <l; Z t..l: Ql' ~ S W E-t' .... Ql: $ :I: W <Il ...:I: 0. > - ll< H 0 .0:' Ql: 0 ~ W N t>: :;:, en: z: 0 " Q Ul ~ ~ 'c) 0 ,., ...:I 0 .. EXlIlIllT A MDr.NIlUM TO CONl-Ir.RCIAL LEASE This Addendwn is hereby incorporated into and made a part of a certain Corrunercial Lease da ted A'; ,....d.. J, , 1!l78, by and bet-ween JOSEPH A, GENSBIGLER and LIZZIE N. GENSBIGLER, his wife, as Lessors, and ROIlERT L. EVANS and I~ALTER CRONE, as Lessees. 22. TIle contents of this Addendwn are deemed to be in addition to and supplementary of the Corrunercial Lease to which it is attached, the terms hereof being deemed to take precedence and control in the event of any inconsistency between this Addendum and said Conunercial Lease. 23. The consideration of this lease ($132,000.00) shall be paid in regular and consecutive monthly installments corrunencing on February l, 1979, as follows: A. On the first day of each calendar month corrunencing February 1, 197!l, the Lessees shall pay to Lcssors the sum of One TIlOusand ($1,000.00) Dollars per month for thirty-six (36) consecutive months; B. On the first day of each calendar month commencing on February 1, 1982. the Lessees shall pay to Lessors the swn of One Thousand One Hundred ($1,100.00) Dollars per l1Ionth for forty-eight (Ll8) consecutive months; and C, On the first day of each calendar month co~nencing on February 1, 1986, the Lessees shall pay to Lessors the sum of One TIlOusand Two Hundred ($1,200,00) Dollars per month for thirty-six (36) consecutive months. 211. Lessees shall have the right and option to extend this lease for three (3) successive periods, known hereafter as "renel~al terms" for an aggregate of one hundred l:I~enty (l20) calendal' months conunencing on February 1, 1989, provided that Lessees give written notice of their intention to so extend said lease not less than six (6) calendar months prior to the expiration of the initial term of this Corrunercial Lease and not less than six (6) calendar months prior to the expiration of the then existing renewal term. If Lessees fail to give such notice their rights hereunder shall cease and terminate without further notice upon the expiration of the then existi ng term or rene\~al term. TIle renewal terms shall be for the following periods: Renewal Term No.1: From February l, 1989, tllrough January 31, 1992. Renel~al Term No.2: From FelJruary 1, 1992, through January 3l, 1996. Renewal Term No.3: From February 1, l!l96, through January 31, 19!19. The base consideration for said renel~al terms shall be as follows: Renel~al Term No.1: Forty-six Thousand Eight Hundred ($116,800.00) Dollars payable in thirty-six (36) consecutive monthly install- ments of One Thousand TIlree Hundred ($l ,300.00) Dollars per month co~nencing February l, 1989. Renewal Term No.2: Sixty-seven TIlOusand TIVo Hundred ($67,200.00) Dollars payable in forty-eight (118) consecutive monthly install- ments of One Thousand rour Hundred ($l,LlUO.OO) Dollars per l1Ionth cOllUnencing February 1, 1992. Renewal Term No.3: Fifty-four l110usand ($511,000.00) Dollars payable in thirty-six (36) consecutive monthly installments of One TIlousand ri ve Hunllred ($1,500.00) Dollars pCI' l1Ion th cOlnnencing February l, 1996. The hase considel'ation set forth ahove is deemed to be the mln.ll1l11l11 cons.idel'atiun fur said renel'ill tel'I1IS, and shall be in al!di liun lu the a<I,lilillnal eunsidel'aliun PI'OVil!(,11 illulled ialely hellJ\~, In addi lion to tl1e biH-iC ('ull:.;illpl'atioll illulIl'diall~ly ahovct the'I.L':;:il~L'~ :i 1 1\1 11 pay to the Ll'S~I)I's as adtli 1 iLlIlill ellll~lid(lt'i1t iolt i.1 bUill or lIlulley pl'UI'all'l! ..ill l~ql.hll 11illlltllly ill:;talllll('lIt~ lI\'l'I' till' dillll'UPI'idtc' l'l'IH'\"ill h'I'IIl IJ<l~;L~d Upllll tlH~ flllltlh'lng LXIII lilT A rormul a: the hase consi dera t.ion sha II be incrcased proportiona tely hy the average annual percentage increase of the Consumer Price Index for All Urban Consumers as compil ed and puhlished by the Ilni ted States Ilepartment of (,abor for the thirty-six (36) lOon ths las I. pub l:ished before the CDlluur",cem['n I. of the respective renewal term, that is, the base consideration shall be increased by the same percentage of .increase that the above referenced consumer price indcx increases over the last published three twelve-month periods prior to the renewal term being renewed. 25, It is contemplated that Lessees will make eertain initial pre-occupancy additions and improvements to the demised premises which additions and improvements shall be subject to the prior approval of Lessors. Should the Lessors fail or refuse to approve the said pre-occupancy additions and improvements within fifteen (l5) days after submission thereof by Lessees, this Lease shall cease and terminate and the rights of the parties herein shall be deemed cancelled and this lease shall become If the Lessors approve said additions and improvements, they agree to pay up to 1\uenty-five TIlousand ($25,000.00) Dollars for the same, said payment to be made to the builder, materialmen or other persons rendering services in the construction of such aclditions and improvements. TIlls term shall not be construed to obligate Lessors to any third party, but merely to provide assurance to Lessors that their payment will be applied on account of costs attributable to permanent improvements and additions. 26. Lessees covenant and agree to pay as billed all premiums of fire insurance covering said premises. Lessors shall send to Lessees a copy of each premium notice and Lessees shall pay the same within thirty (30) days from Lessors' delivery thereof to Lessees. As an accommodation to the Lessees, Lessors agree to place their fire insurance coverage with an insurance company selected by Lessees, provided that the insurer so selected is a reputable company licensed to do business in the COllunonwealth of Pennsylvania; it being understood that said right of seleetion shall not be construed to vest any interest in such insurance in the Lessees. Lessors shall have the right to determine the amount of insurance coverage which shall pro- vide for complete replacement of all losses without deduction or co-insurance obli- gations. The amount of such coverage shall be determined as often as annually by appraisal satisfactory to Lessors. If Lessees fail'to pay said premiums, they shall be deemed to be in default hereunder in ,uhich evcnt, in addition to all other remedies available to Lessors, they shall have the right to pay said premiums and collect the same as rent due and in arrears. Lessees agree to pay one-half of all fire insurance premiums for insurance on said premises from the date hereof until I.essees occupy the premises or until December 1, 1978, whichever shall first occur; thereafter Lessees shall pay the full premium on such insurance as provided illullediately above. 27. Lessees covenant and agree to procure and maintain public Uabi lity insurance for all risks on said prpmises at thcir sole cost and expense having limits of not lcss than $300,000 per person and $5()[J,OUO per occurrence. Lessces shall provide Lessors with a certificate of insurance from their insurer as proof of com- pliance hereunder. Should Lessees fail or refuse to maintain such insurance, thcy shall be deemed to be in default under this lease, and Lessors shall have the right to procure such coverage, the premium for which the Lessees agree to pay as addi- tional rent hereunder. If for any reason, such liability insurance is not available, , Lessees shall cease all operations on said premises until the same is obtained with- . out diminution for rent owing hereunder. 28. In addition to the cov['nants set forth in the foregoing Commercial Lease, and not\ui thstanding anything to the contrary apppal'ing thl'rein, Lessees shall be responsible for all repairs to said prl'mises including but not Umi ted to roof repairs except for damage due to fire not at the fault of the Lessees to the extent that the same are covered by insurance. 29. Lessees covenant and agree to pay a II charges, rcnts and fees of all , puhlic utiLi ty an,l municipal s['rv;ccs r['lldcrpd to, consllmpd Ill' usp,l at 5ait! prl'm;5p5, ' including but not limited to'gas, water, ell'ctricity, sanltat'y 51'\Upr mill Il'ash r['mova 1. As to those matters \uh i ch migh I. bl'eol1\c 11 ('"S on sa i d prpl1\ i SPS, 1."ssOl'S shall have the right to pay the same upon (.[,SSI'['s' (h,ralll I. ami to ,'olle('t thp sal1\[' as rent due and in [II'rears, said right heing in ;uhli I iOIl 10 all I1I1H'I' J'('III1',lips provided for herpin. , -.-- EXlIIII1T ^ 30. Lessees shall provide and maintain three (3) parking spaces for the exclusive use of r,essors, their employees, agents and guests, at the places set forth on a certain parking plan signed by the parties hereto upon the execution hereof, which plan is incorporated herein by reference thereto. r,essees shall remove all snow from said pal'king spaces in order to permit cons tant use thereof by Lessors. 31. Lessees shall mow a II yard areas at leas t one time per week during the growing season and keep the same in neat and clean condition and free from all debris. Lessees shall also be responsible for the trimming of any hedge between the demised premises and Lessors' adjoining premises. 32. Lessees shall not store any materials of any kind on the outside of the building on said premises without the prior written approval of the Lessors. 33. Lessees covenant and agree to pay as billed all real estate taxes on said demised premises. Lessors shall deliver copies of all tax notices to Lessees, and Lessees shall pay the same within thirty (30) days from date of delivery of such tax notices. Lessees' failure to pay said taxes shall be deemed a default hereunder, and in addition to all other remedies provided herein, Lessors shall have the right to pay such taxes and collect the same as rent due and in arrears. 34. In fulfilDnent of certain deed restrictions as contained in Lessors' deed to said premises, Lessees shall not use said premises for the storage, sale, distribution, or advertising of petroleum products or the by-products thereof, except that this provision shall not apply to the storage, sale, distribution or advertising of transmission oils and fluids. 35. Lessees shall have the riglit to install new motor vehicle lifts in said premises and to remove the same in the event that Lessees elect not to exercise their rights to extend this lease for Renewal Term No.1 as provided in Paragraph 211 hereinabove; thereafter said lifts shall remain in said premises as part thereof. 36. Lessees covenant and agree to pay the first and last installments of the total consideration of the basic term upon the execution and delivery hereof, the receipt of which are hereby acknowledged by Lessors. 37. Lessees may only assign or sublet said premises to persons operating a motor vehicle transmission repair business, but Lessees shall nevertheless remain primarily responsible to the Lessors for the performanee of all terms and conditions hereof without diminution. 38. It is understood that Lessees have inspected the property or hereby waive the right to do so and he has agl'eed to Lease it - as a result of such inspection and not because of or in reliance upon any representation made by the Lessor or any officer, partner, or employee of Lessor (Corrunercial-Industrial Realty Company) , or any of his salesmen and employees, and that he has agreed to lease it in its present condition unless otherwise specified herein. 39. It is expressly understood and agreed between the parties hereto that Commercial-Industrial Realty Company, as Agent, its salesmen and employees or any officer or partner of Agent and any cooperating broker and his salesmen and employees and any officer or partner of the cooperating broker are acting as Agent only and will in no case \~hatsoever be held liable either jointly or severally to either party for the performance of any term or covenant of this Agreement or for dama~es for the nonperformance thereof or for the preparation of the Lease. 110. See attached Cottman Transmission Licensor Lease Rider which becomes an additional Addendwn to this Lease. Ill. In the event Lessors should desire to sell said premises, the Les!;ees shall have the right of first refusal on any bona fide offer accepted by Lessors, said right to exist for a period of ten (lO) days from Lessors' delivery thereof t n Lessees. If Lessees should accept said offer to purchase, they shall (Id t" in said period of 10 days) enter into a I' o l'ma 1 :\gl'eement of sale on the same terms and cllnditions as the 01'1'1'1' tl'ilnsmitted to them. If the 1.essees fail or refuse - i- EXIIIIIIT ^ to enter into such agreement of sale ,~ithin said pedod of ten days, [,essors shall be at Liberty to sell said Pl'endses in accordance ,~lth the terms offered to the Lessees. It is expressly understood and a6'!'eed that the foregoing right of first refusal shall not apply to transactions bel:\~een Lessors, their children or other issue, the agents or I'epresenta tives thereof, and corporations, partner- ships or other entities controlled by them, a1 though said right shall survive the intra-family transfers and be applicable in the event of a proposed sale to a non-family buyer. In the event of a sale of said premises to Lessees, Convnereial- Industrial Realty Company is recognized as the sole procuring agent. 112. TIlis lease is subject to the Lessees obtaining all necessary building use, occupancy and zoning permits (and any other governmental approvals which may be required) to build, construct and operate a transmission center. 43. Lessees shall have the right and privilege to erect business signs on said premises on the following conditions: (a) All such signs shall. be erected on or in front of the building on said premises ("front" being toward ~larket Street), (b) Signs attached to the front of the building shall not exceed the height of the building as may be approved by Lessors under Paragraph 25 of this Addendum, (c) All signs shall comply with the pertinent regulations of the Township of Hampden. 44. 30 North shall be All notices to Lessors should be addressed to Joseph A. Gensbigler, DDS, 36th Street, Camp Hill, Pennsylvania 17011; and all notices to Lessees addressed to them at 3600 Narket Street, Camp Hill, Pennsylvania 17011. 115. In the event of any default hereunder other than the payment of money, Lessors agree to give written notice of default to Lessees as set forth below before exercising their lawful remedies for such default during which time Lessees shall have the right to cure such default: (a) Five (5) days notice for default under Paragraphs 30 and 3l of this Addendum; and (b) Ten (lO) days notice for all other defaults (other than the payment of money). 116. Lessees covenant and ab'!'ee to open, opera te and ma.intain a used motor vehicle sales business at the demised premises to the cxtent necessary to obtain and maintain zoning use approval from the'lIJ\Vllship of Hampden, it being under- stood by all parties that the Lessees' proposed use of the premises for auto- mobile transmission repairs is conditioned upon the use thereof as a used motor vehicle sales premises as defined by the zoning ordinance of said Township. 117. Lessors covenant and agree ,~ith I.essees that as an express condition of this lease that should there by any Linal decision concerning the zoning classification of the d('mised I'l'('mises ,_hieh opel'ates to terminate the right of the Lessees to do business as Cotl1llan Tl'ansm.iss.ionsin conjunction wi th the used vehicle sales use rl''luil'ed unller l'nl'ngrnph 1I(j above, this lense shall terminate at the option of the LI'SSCl'S upon ten (lll) days' 1'1'101' written notice by ordinal'y mail to Lessors subseljuent to nny such final decision, '1111' tel'm "fi na 1 deci si on" ns used in th Is Pnra6'1'nph 117 shall be construed to mean the final decision of the highest appellate court having .luri/Hl.!ct.lon of Ruch iRSIlf;>. Ll'SSl'l'R covpuant nnll IIgl'ee to I'xel't their best efforts to maintain Huch zon lng appl'ovn I nllll wi I) .i ns l.i tllte su('h legn) aud egui tnble acU ons and pel'fl'l't HUI'h appeals liS may hI' npl'l'SHal'y to pl'nleet nnd Ilefellll their use of Ihl' pl'I'ml/i(,s aud the znrdug nl'pl'llvnl ns UllW in l'ITeet. Lessnrs shnll have till' "Ight to Inll'I'veul' in allY I'Ilch ll'gnl IJl'OcPl'lllngs and to 11l111er.tnke Ii Ligation _11_ EXHIBIT ^ EXHIBIT "A" LEGAL 1JI:SCHII7fION OF I,I:ASI:U I'HI:NISES .. . Al.l. THAT CERTAIN piece or parcel of land, situate in Hampden Township, Cumberland County, Pennsylvania, bounded and described in accordance with a survey and plan thereof made by D. P. Raffensperger, Registered Surveyor, dated May 29, 1961 as folIo BEGINNING at a railroad spike placed at the intersection on the Northern right-of-way line of U. S. Route 11 (50 feet wide) and the Western right- of-way line of 36th Street (60 feet wide): thence extending along the Northern right-of-way line of U.S. Route 11, South 87 degrees West l30 feet,to a stake in a pipe at a corner of land of Sun Oil Company: thence extending along said land of Sun Oil Company, North 3 degrees West 200 feet to a stake in a pipe at a corner of Lot No. 15 on the hereinafter mentioned Plan of Lots: thence extending along Lot No. 15, North 87 degrees East l30 feet to a pipe on the Western right-of-way line of 36th Street: thence along said right-of-way line, South 3 degrees East 200 feet to the first mentioned point and PLACE OF BEGINNING. ~EING Lots. Nos. 13 and 14 and the Eastern lO feet of Lot No. 12, Section "A" on the Plan of Lots entitled "Hampden Gardens" which said plan is recorded in Plan Book 4, page 32, Cumberland County records. L E S S BEGINNING at a point in ~he westerly lin~ of 36th Street, said point being northerly one hundred twenty-five feet (l25') as measured along said line of 36th Street from the point formed by the intersection of said line of 36th Street and the northerly line of Route ll: thence (1) Northerly, North three degrees West (N 030 W), along said line of 36th Street, a distance of seventy-five feet (75') to a point marked by a pipe: thence (2) Westerly, South eighty-seven degrees West (S 870 W), a' distance of one hundred thirty feet (130') to a point: thence (3) Southerly, South three degrees East (5 030 E), a distance of seventy-five feet (75') to a point: thence (4) Easterly, North eighty-seven degrees East (N 870 E), a distance of one hundred thirty feet (130') to the first mentioned point and place of beginning: lAW O"ICII GNELDA.KER, ~CC"L[D A [LICKER EXHIBIT A . -...----..... .-~_. LEASE RlliER 'I !' This Rider Is attached to and Is nilrt of th~t certain Lease hy and I,. ~~~wcen -.l~:~ ~. ~~~n~~~~~t~~~~~'--------- !tmm datcdliovlt~~H'--2.r-->.lnk for the J1remlses locatembnQ)larket . St~!..-1il!mpde!!...!.Q..w.!ll!.l!ip , Cumb.!!rl.l!.n~. ~2!!-!).FY. Penn.sylvanill. Conditional Assignnent. LESSEE herehy conditionally assigns all of LESSEE's right, title and Interest In this lease to Cottman Transmission System Inc. ("cottman"). This assignment shall become effective only UJ10n occurrence of both of the following conditions: 1. Tennlnation of the License A!)reel1\(lnt between Cottman as L1CEtISOR and LESSEE as OPERATOR for the operation of an automotive transmission center at the leased premises, and \ 2. Exercise by Cottman of its oJ1tion to assume the obligations of and to replace LESSEE as the lessee under this lease as provided In the said Licens Agreement within thirty (30) days after termination of said License Agreement. 1 ., . 00 ! LESSOR hereby consents to the said conditional assignment and hereby agrees that if said conditional assignment he comes effective, Cottman shall , thereafter be substituted for LESSEE as the lessee in this lease'~'1 boooobt)(lOOt~~~l~~)ltC)mun: I ~~and Cottman shall have the right to reassign this lease to a new operator of the premises. In the event of such reassignment, Cottman shall be relieved of al1llabllity accruina under this lease after the date of sa I d ..eass i gnment. LESSOR agrees to give Cottman thirty (30) days prior written nntlce of its Intention to re-enter and reJ10ssess the premises and to cancel the lease on account of LESSEE I S default of any of the terms, condi tlons or J1rovi 5 ions thereof. Ourin!) this thirty (30) day period Cottman may cure such default or othel''1ilse exercise its rights under this conditional assignment, In the event that LESSEE fails to exercise its option under the lease to renew the lease pr1 or to its exp; ration, LESSOR agrees to not ify Cottman in lid tin!) of HSSEE's failure to renew the lease and Cottman shall then have thirty (3n) days from receipt of such notice to exercise any option to renew ilnd to replace LESSEE as the lessee under the lease. LESSEE agrees that at such Urle as Cottman exercises 1ts option to beco~ the lessee under this lease, LESSEE will il~nll'diatp.ly vacate the demised premhl without remov;n!) any equipment, parts or sunplies except as authorizerl in the license /lUI'eelllCnt an'd will permi t Cottlllap to cntl\r upon and take possess Ion Of the demised premises. LESSOR is hereby authorized and directed to rely solely UllOn writlen notice by Cottman of the termination of the said License ^'lreement and exercis by Cottman of its option to become the lessee under this lease and is hereby relieved of any and all liability to LESSEE for any action It takes In so relying. Upon exercise of the conditional assignment, Ua i ver of Subrogat ion./ LESSpR and LESSEE hereby wa I VI! any and a 11 rig' of action for negligence against each other which may hereafter arise for db!:]. to thp. rlendsp.Il J1remlses 01' to J1roperty contained therein resulting from any fire or othcr casualty of the kind covered hy a stanrlard fir~ Insuranc!! nolle 'iith an extended coverage and vanda li sm and mal i ci nus nli schl ef en~nn~ment, regardless of wllether or not, or in lihat ,lmounts. such insurance is nor or hereafter c.lrried by the LESSOR nnd Lr.SSEE. . Haiver of liens. LESSOIl agrees to si!]n one or more release and waiver of liens COOimonly kno~1Il as a Landlord's \Iaiver waiving its lilndlorll's lien on any or all equi pment Ins ta 11 ed in these preml ses 6y LESSEE and fi nanced tly the vendol" or any lending institution, such releases and waivers of liens tu be on fom~ sl/pfllles to LeSSOIl by l[SSU. C01111f1'1 III TllFSS: Oy: LESSOIl LtSSOR ....~. ,.., ., ' '/ f) -# ~.,,-~~/.~ EXHIBI'!' 11 _..l_~_. LEASE RIIlER Ii ,I This Hider is attached to aod is pMt of that certaio Lea~e hy aod I betlieeo ,_'l~s.qpLl-11..!-!'!.nd-'~iz?:ie_~_G..e_'1!?~!g),~.!'________ ___ ___I (LESSOR) I and -_-Robet'LL...~!u1Qd_Wil1teJ::_CronlLh___ _ LESSEE) , dated Novembel' .Jh ... 197B.. for the premises locatl!dat 3600 ~larket .s. !E!?i!f,_JI~I~J!d;;E Towns_I!iE.:'::~~p_e!,}.a.~~ _ g!l':l!.1_t~'enn.<;y lvani~- ------ Conditional AssignllK!nt. LESSEE herehy conditionally assigns all of LESSEE's right, title and Interest in this lease to Cottman Transmission System, Inc. ("Cottman"). This assignment shall become effective only upon occurrence of both of the following conditions: , " I 1. Termlnatioo of the License Agreemrnt hell-Ieen Cottman as I.ICEfISOR and LESSEE as OPERATOH for the operation of an automotive transmission center at the leased premises, and 2. Exercise by Cottman of its option to assume the obligations of and to replace LESSEE as the lessee under this lease as provided in the said LicenSE Agreement within thirty (30) days after termination of said L icensl! Agreement. LESSOR hereby consents to the said conditional assignment and herehy agrees that if said conditional assignllK!nt hecomes effective, Cottman shall thereafter be substituted for LESSEE as the lessee in this lease, ~ boooobtJD(K<<~X1lt(l<l<II1l9':€Ct'tMXli!fJOOOO{;ICQj:{lOQWS'f!x:a>C(lll<XN~~~m ~~:txK~Jrtxand Cottm,ln shall have the right to reassi'Jn this lease to a new operator of the premises. In the l!vent of such reassignmeot, Cottman shall be relieved of all liability accruinC) under this lease after the date of sa id reassi gnment. LESSOR agrees to give Cottman thirty (30) days prior l'lritten notice of its intention to re-enter and repossess the premises and to cancel the lease on account of LESSEE's default of any of the tf!rms, conditions or provisions thereof. Ourlog this thirty (30) day perlnd (ottmao may cure such default or othenil se exerc i se its rl ghts under thl s condit iona 1 ass i gnment. 10 the event that LESSEE falls to exercise Its option under the lease to renew the lease prior to its expiration, LESSOR agrees to notify Cottman In writing of LESSEE's failure to reneli the lease aod Cottman shall then have thirty (30) days from receipt of such notice to exercise any optloo to reoew aod to replace LESSEE as the lessee uoder the lease, LESSEE agrees that at such tlple as Cottman exercises its option to become the lessee under this lease, LESSEE will il'lmedlately vacate the demised premises liithout removing any eC]ulpllK!nt, parts or sunplles except as authorized in the License ^!JreeI1Ieot and liill pel1uit Cottmao to entl!r upon and ta~e possession of the demised premises, LESSOR is hereby authorized ,lnd directed to rely solely uoon lil'itten notice by Cott,.,an of the tenllination of the said Licen~l! Agreement and exercise by Cottman of its option to become the lessee Udder this lease and is hereby relieved of any and all llahillty to LESSEE for any action It takes In so relylnC), Upon exel'cise of the conditional assignment, Haiver of Subroqation./ LESSOR and LFSSEE herehy waive anv and all rights of action for negli(lence against each othrr I'/hich may hereafter arise for damage to the demised premises 01' to pl'Opertv coutJlned therelo resultlu!) from any fi,'e or other c,'sualty of the kind covered by" stand,lrd fire insurance policy lilth ,ln extended covera'le and vandalism and mallcinus mischief endorsement, re!Jardless of w'lCther or not, or in I'/hat amounts. such insurance is nor or hereafter carried by the LESSOR and LrSSEE, . I~alver of liens. LESSOR agrees to s;'ln one or more releil~e and waivers of liens commonly known as a Landlord's Ha;ver waiving its landlord's lien on any or all efJu;pment installed in these pre'l'1ises by LESSEE and financed hy the vendor or any lending Institution, such releases and w"ivers of liens to he 011 fOrl'l~ suppl ies to [[SSOR hy IISSI'E. COlll-Vl!1 lR~!S1iSSIOII SYSlEf1S, l~lC, ~Il TlI( SS: By:_________ ___ L~r,~01'_9~AiJJt~ 1!4tff~ I LI.SSOR J ,:>:; '/lL-"" LlSS(( ~.f' tV -.' .,4 _... f./ _ r.l'ssrl:--.7~.L.J-__--h- h_~.., , '-,A-; # }:.... .- ...-::. (' -- A:.-- , , EXHIBIT D . '. .....1 '. "', .,.... ~ :......: , " " : SECONll AllllENlllJ~1 'I'll Cll~I~IEIlCIAJ. LEASE /,larch 22, In!l It is understoou and agreeu that C];III~es 23 and 24 ~hall hc amended.to read ~Iarch 22, 1!17!l, for thc comr.1encemcnt date of re~tal In~tallments. Ilcntal payment Id 11 hc proratcd on a d~lly ~a~ls ~rom t~e period of March 22, 1!l7!l, through March 31, 1.l79, Indu~lve. Ihe nel~ dau~e~ 23 anu 24 arc suhstituted as 1'0 11 OI~s : 23. The consideration of this lease ($132,000) shall he paid in regular and consecutive monthly installments commencing on I-larch 22, 1979, as fol101~s: A. On the fir~t day of each calendar month commencing Apri I I, I !179, the J.e~sce~ ~ha II pay to J.e~~or~ the ~um 0 l' Onc Thou~auu ($1,000) lIollars pCI' month for thirty-six (3(.) consecutive months; B. On the first day of each calendar month commencing on April I, 1!l82, the J.c~sess shall pay to Lessors the sum of (Jnc Thousand One Ilundred ($1,100) nollar~ per month for forty-eight (48) consecutive months; and C. On the fir~t uay of cach calendar month commencing on April I, 1!l86, the Le~sees shall pay to Lessor~ the ~um of One Thousanu TI~o Ilundred ($1,200) 1I011ars per month [or thi rty-~ix (36) consecutive 1i10nth~. 24. Lessees shall have the right and option to extend this lea~e for three (3) ~uccessive periou~, knOlm here,.fter as "renewal term~" for an aggregate of one hunured tl,,'uty (120) calendar months commencing on Apri I I, I!lM!l, provided that I.essees give IHilten notice of their intention to ~o extend ~aid lea~e not less than ~ix (Ii) calendar month~ prior to the expiration of the initial term of thb Commercia! Lea~c and not less than ~ix (Ii) calendar months prior to the expi ration of the then existing renelvul term. I l' Le~see~ fai I to give ~uch notice thei I' right~ herennder shall cea~e alHI terminate I~i thout further notice upon the expiration of the then cxisting term or renelial term. The renelial terms ~hall be for the following periods: Ilene\~a I Term No. I: From Apri I I, I !l8!' , through Na rch 31 , I !l!12 Ilene\;;! I Term No. 2 : From "pri I I, 1992, through ~Ia rc h 31 , I !lDCl lleneNa I Tenn j~o . 3 : From "pr i I I, I !l!)(l, through ~la rc h :\ I , I!)!I!) The hasc consideration for ~aid rcnC\\'tl 1 terr.1S ~hall be as follolV~: IlcneIVal Tern No. I: Forty-Six Thousand Eight lIundred ($,lll,800) lIollars payable in thirty-~ix (36) con~ecutive monthly installments of llnc Thou~and Three lIunllred ($1,300) 1I011ar~ )leI' month commencing April 1, 1!J89. llenCl~al Term No.2: Sixty-Seven Thou~~nd Tlio Hundred . ($b7,200) Ilollars payablc in forty-eight (411) con~ccutlve monthly installment~ of One Thnll~an,1 1'0111' H'.llll!red ($1,400) llo1Iar~; per lIIonth cOlilmencing /\pri I I, !'1!)2. ~XlllnlT C UKUIl\'f OtfItt, ,.0 NCW VOA~ C.'V[ foft """''''1'0". P. l')OJ' - llC...,lllg .2",UlSaU - OpI,,,tIOnt (21~) (,.t).SIS2 TELE.fAX O:-iL Y May 21. 1997 Joseph A Gensbigler Lizzie N. Gensbig1cr 30 North 36ilJ Strcet Can1[l Hill, P A 17011 Rr 3600 Carlislt: Pike Camp lIill.I'A 17011 Dear Mr will Mrs Gensbiglrr On Ma)' 12. 1997, Walter Crone and Sally Crone ceased operalinlllheir Cottman Center at the aho\'e-reference!\ locAtion The Crones' have filed a bankruptc)' petition and the License Agreement between them And Cottman Transmission Systems, Ine has been rejected ROIl i. therefore, deemed terminated As you arc aware, under the temlS ofth~ \.ease Rider, CC'Hlllan ma)' e1(err.i~e its option to a conditional assIgnment o!'the 1l'ase and reassign h 10 a new 1icens~(: Co!tnlsn is hereby exerci~ins its option and migning Ihe lease to MoMan, Jne MoMart will begin conducting busincss stlhe location on May 27, 1997, Michael Moyer and Douglas Mnrtella, the principals of MoM art, own and operate a Collman Transmission franchi~l' in POttstoWlI. PennsylvaniA They are prepared to Icnder rell! inun~ujAtely Please call me upon receipt oflhis fax ~(l thaI we may work OUlthe df.taih orlhe assigllment and lhe paynlent ofrenl, Sincer~l)' yours, COTTMAN mANSM1SSION S,'STE~fS. I:-lC, ,~ . ! ,Ii j l).tlL,(,'_,'-{. Uc::_,:l,-<,l. .A ;' :0.. I ..' Elh:~n J Burko' MarkelintVLicensing Coordinator EXHIBIT D . . JOSEPH A. GENSBIGLER and LIZZIE N. GENSBIGLER, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. . . CIVIL ACTION - LAW : COTTMAN TRANSMISSION SYSTEMS, INC., and MOMART, INC., Defendants . . NO. 97-3577 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT COTTMAN TRANSMISSION SYSTEMS. INC. BEFORE HOFFER. P.J.. OLER and GUIDO. JJ. If. ORDER OF COURT AND NOW, this l? day of April, 199B, upon relation of Philip A. Tegtmeier, Esq., counsel for Defendant Cottman Transmission Systems, Inc., that he does not desire to pursue Defendant's preliminary objections to Plaintiffs' complaint, the preliminary objections are dismissed and Defendant is granted 20 days from the entry of this order within which to file an answer to the complaint. BY THE COURT, J Richard C. Snelbaker, Esq. 44 West Main Street Mechanicsburg, PA l7055 Attorney for Plaintiffs Philip A. Tegtmeier, Esq. Cottman Transmission Systems, 240 New York Drive Fort Washington, PA 19034 Attorney for Defendant Cottman Transmission Systems, .1 c.t-f~..... .0> ....J<<l '-t/;lc/98' <S'~ . Inc. Inc. .r JOSEPH A. GENSBIGLER and LIZZIE N. GENSBIGLER, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW v. COTTMAN TRANSMISSION SYSTEMS, INC., NO. 97-3577 CIVIL TERM and JURY TRIAL DEMANDED MOMART, INC., Defendants PRAECIPE TO THE PROTHONOTARY: Kindly mark the above captioned matter as settled, - discontinued and ended, with prejudice, upon your docket and indices. Respectfully Submitted, SNELBAKER, BRENNEMAN & SPARE, P. C. By: '\~;r) /J;~fr})1.-e Pk~~.f~;e, Esquire 44 W. Main Street Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Plaintiffs Date: ~P/tr LAW Or,.IClS SNELDAKER, BRENNEMAN 8: SPARE: I [ I