HomeMy WebLinkAbout97-04700
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BENATEC ASSOCIATES, INC"
Petitioner
v.
r
r
r
r
I
r
r
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 9'1 - L/-71)O erA $V>o v
PA 240 ASSOCIATES,
Respondent
CIVIL ACTION - EQUITY
ORDIIR
AND NOW this ~ day ot Auqust, 1997, upon consideration of
.
Petitioner's Petition for Prellminary Injunction with supportinq
Affidavit and Affidavit of Counsel reqardinq attempted notice to
Respondent, and it appearinq to the Court that immediate,
irreparable harm will be sustained by Petitioner before a hearinq
can be held on Petitioner's Petition for Preliminary Injunction, it
is hereby
ORDERED, that Respondent, PA 240 Associates, its partners,
owners, affiliates, principals, aqents, representatives, and
assiqns be and are hereby enjoined and prohibited from any action
or tailure to act desiqned or likely to result in the disturbance
or deprivation of Petitioner's quiet enjoyment and habitation of
the premises located at 110 Erford Road, Camp Hill, Pennsylvania;
and it is further
ORDERED, that, pursuant to Pa. R.C.P. 5 1531(d), a hearinq
pertaininq to the continuance of this
~ ~ t- 3 I '191
be he 1 d on ..IAJu-... 6ly I -""'Ir' at 'I: 00
and it is further
preliminary injunction will
111'7. in Court Room 'f
.
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('....T".."'~, CltlCJ.'J..C
Co ft NT"I
1''' 17"7
I
BENATEC ASSOCIATES, INC"
Petitioner
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. C(rl_ 4- ?UO
I
I
I
I
I
I
:
CIVIL ACTION - EQUITY
v.
PA 240 ASSOCIATES,
Respondent
PBTITION WOR PRBLIKINARY AND 8PBCIAL INJUHCTION
AND NOW comes the Petitioner, Benatec Associates, Inc., by and
,
through its attorneys, Wix, Wenger & Weidner, and seeks issuance of
a Preliminary and Special Injunction pursuant to Pennsylvania Rules
of civil Procedure No. 1531, and in support alleges as follows:
1. Petitioner is Benatec Associates, Inc" a corporation
providing professional engineering and related services and having
offices at 101 Erford Road, camp Hill, Cumberland County,
Pennsylvania.
2. Respondent is PA 240 Associates, a partnership having
offices at 110 Sunset Avenue, HarriSburg, Dauphin County,
Pennsylvania.
3, The subj ect matter of this action is the threatened
disruption of Petitioner's occupancy of the premises at 101 Erford
Road by Respondent.
4, Petitioner is the lessee of the premises.
5. Respondent is the lessor of the premises by way of
assignment of the written lease and informal amendatory
transactions, all described below.
,.
.
6. Petitioner entered a written lease with the prior owner
of the premises, said lease having a stated term of five years
beginning April 1, 1992. A copy of' the lease is attached as
Exhibit "A".
7. The term of the lease was extended by informal agreement
of Petitioner and the original lessor,
8. On or about July 14, 1997, Respondent entered upon a
purchase agreement with the original lessor, whereby Respondent
acquired title to the premises and received an assignment of the
original lessor's interest in Petitioner's lease,
9. At or before the time of settlement, Petitioner
stipulated with the original lessor that Petitioner would hold over
occupancy of the premises beyond the stated termination date.
Petitioner and the original lessor evidenced said stipulation by a
writing entitled "Estoppel certificate" dated July 14, 1997. A
copy of said Estoppel Certificate is attached hereto as Exhibit
ItB".
10. Said Estoppel Certificate was delivered to and accepted
by Respondent at or before settlement on its purchase of the
premises.
11. Respondent accepted said Estoppel certificate, raised no
objection to Petitioner's continued occupancy, and accepted one or
more payments from Petitioner.
2
12, Verbally, prior to Auqust 28, 1997, and in writing on
that date, Petitioner advised Respondent that Petitioner would
vaoate the premises on October 4, 1997. A copy of the writing by
which said notice was given is attached hereto as Exhibit "e".
13. On or before August 28, 1997, Petitioner paid to
Respond~nt rental payment for the period September 1 through
October 4, 1997. The amount of said payment was at the same rate
as was previously charged under the lease.
14. Respondent has given no notice to quit, adequate within
the provisions of 68 P.S. S 250.501, which provides in relevant
part:
A landlord desirous of repossessing real
property from a tenant may notify, in writing,
the tenant to remove from the same at the
expiration of the time specified in the notice
under the following circumstances, namely."
In case of the expiration of a term or of
a forfeiture for breach of the conditions of
the lease where the lease is for any term of
less than one year or for an indeterminate
time, the notice shall specify that the tenant
shall remove within thirty days from the date
of service thereof, and when the lease is for
one year or more, then within three months
from the date of service thereof,
15. At or about 3:10 p.m, on Thursday, August 28, 1997,
Respondent, stating dissatisfaction with the amount of the rental
payment made by Petitioner, telephoned Petitioner and stated that
on or about September 2, 1997, Respondent would enter the premises,
3
,
regardle.s ot Petitioner'. objections, and would remove or render
inoperable the premi..'. electrical, heating, and ventilation
facilities and take such other measures as may be required to
render the premises uninhabitable.
16. Petitioner avers it is in lawtul possession ot the
premises and .aid lawtul possession continues through October 4,
1997.
17. Petitioner believes the action threatened by Respondent
will occur it Respondent is unrestrained, and that such action will
constitute an illegal physical seizure ot the premises and eviction
ot Petitioner.
18. Petitioner avers that its physical eviction by Respondent
by rendering the premises uninhabitable is inequitable and contrary
to law.
19. Physical eviction ot a tenant by a landlord is illegal in
Pennsylvania under the provisions of The Landlord and Tenant Act,
68 P.S. 250.501, which provides the exclusive remedies ot the
landlord, and the case law interpreting the Act. See Lenair v.
CamDbell, 31 D. & C. 3d 237 (1984).
20. Petitioner believes and therefore avers that such
physical eviction is imminent and will occur unless this Court
enters an Order prohibiting .uch physical eviction.
4
21. Physical eviction as threatened by Respondent will render
Petitioner inoapable of conducting it. bu.ine.. during the period
September 1 through ootober 4, 1997, and will irreparably impair
Petitioner's future business to an undetermined but substantial
extent.
22. The relief requested by Petitioner is necessary to
prevent immediate and irreparable harm which cannot be compensated
,
by damages because the complete incapacity to du business, oaused
by Petitioner.'s physical eviction from its offices, will destroy
its ability to perform its existing business obligations, will
impair its ability to obtain future business, and will diminish
good will and reputation which are essential elements in the
professional engineering services business in which Petitioner is
engaged.
23. Greater injury would result by refusing the requested
relief than by granting it because rental for the period in
question has been fully paid by Petitioner. Respondent has known
and has planned for Petitioner's occupancy through October 4, 1997,
so that even if Petitioner'S occupancy is ultimately found to have
been unlawful, Respondent would have been paid for the use of the
premises and will have incurred little or no injury on account of
Petitioner's occupancy.
Conversely, if the requested ~elief is
denied, Petitioner will suffer substantial harm in the form of
disruption of its business activity as described above,
5
,
24. The requested reliet wili maintain the relative status ot
the partie. until .uch time aa their re.pective leqal riqhta can be
adjudicated.
conversely, it the requested reliet is denied,
physical eviction ot Petitioner will dramatically chanqe the status
of the parties and will inflict upon Petitioner substantial injury,
which may not be adequately compensable by money damaqes.
25. The activity soug~t here to be restrained is the physical
,
eviction of a tenant by a lessor without recourse to legal process.
Such activity is clearly actionable under Pennsylvania law and will
be prevented by the requested relief.
26, Petitioner's right to the requested relief is olear in
that Petitioner seeks to restrain physical eviction by a lessor, an
activity which is clearly illegal under Pennsylvania law.
27. Petitioner has no adequate remedy at law to redress the
impending harm from Respondent's threatened action.
28. Unless the requested relief is granted, Petitioner will
suffer immediate, substantial, and irreparable injury as a result
of Respondent's threatened physical eviction in that:
(a) Petitioner will lose substantial business opportunities
and profits on account of the loss of the premises that
is its office and base of operations; and
(b) Petitioner will lose good will and reputation on account
of its inability to conduct its professional service
business activity.
6
29. Unless the requested reliet is granted, Petitioner will
sutter immediate and irreparable harm before a hearing can be held
on this subject matter in that the physical eviction, threatened by
Respondent, will occur within a time earlier than a hearing can be
held, Moreover, physical eviction is so clearly illegal under
Pennsylvania law that it is highly unlikely that Respondent could
establish a right to such physical eviction if a hearing were held.
30. Because rent for the period in question is fully paid,
and because the relief requested w~uld restrain a clearly illegal
act of physical eviction, Petitioner believes a bond is
inappropriate in the instant case and, therefore, requests the
Court to waive bond or set bond in a nominal amount.
31. Because performance of the threatened action would cause
immediate and irreparable ha:t'm to Petitioner, and would occur prior
to the time a hearing could be held on this Petition, Petitioner
requests this Court to order the requested relief prior to any
hearing on this subject matter.
32. Entry of a preliminary injunction to prevent the
performance of threaten acts is a proper use of equity powers.
See Philadelphia Gas Works Companv v, Philadelphia, 331 Pa. 321
(1938) .
WHEREFORE, Petitioner, pursuant to Pa. R.C.P. S 1531(a),
requests that a preliminary injunction be granted by this Court
restraining Respondent from any action disturbing the habitability
of the premises by Petitioner or disturbing Petitioner'S quiet
7
717:763.7397
TOI 717 764 4l9l
I
F'IClGEI07
) (,) /.2 S /efl
LEASE
THIS INDEN'rURE mllde and executed this _ day of
, 199~ by and between ERrORD DEVELOPMENT
COMPANY, a partnership, with its principlIl office in Ea.t
orange, New Jersey, hereinafter c411ed >>LESSOR>>, party ot the
r1ret part,
AND
BENATEC ASSOCIATES, INC" a Pennsylvania corporation
having it. principal ottice in Camp Hill, penn.ylvania,
hereinafter called >>LESSEE>>, party of the second partl
WITNESSETH:
The Le..or does hereby lellse unto Lessee all tho.e
oertain premises set torth in the description thereof which
i. attached hereto and made a part hereof as Exhibit "A",
known as 101 Ertord Road, Camp Hill, Cumberland County,
Pennsylvania, and the structUrsB erected thereon, together
with all easements, rights of way and rights of access
appurtenant thereto, Upon the fallowing terms and
conditions:
1, TERM OF LEASE. The term of this lease ~hall be for
a period nt five (5) years commencing on the l.t day of
April, 1992, unless sooner terminated by Lessor pursuant to
paragraph 138,
2. RENT. Lessee shall pay rent for said premises lit
such place as designated by Le.sor in writing as tollows:
The base rent for the term of the lease shall be
Five Hundred Ninety-Five Thousand ($595,000.00) dollar.,
payable as tollows:
aeginning with the tir.t day ot the month coincident
with the commencement of the term hereof as provided above,
Lessee shall pay rent for. the remainlng term of this lease in
equlIl conseoutive monthly installments of Ten Thousand
Dollar. ($10,000.00), with the first month to be reduced by II
five thOUsand ($5,000,00) signing bonus, so that the first
month's rent will be five thousand ($5,000.00) dollars,
payable on the first day of each month thereafter, the fir.t
such payment to be made on the first day of the tirst month
of the term as .et forth above, with appropriate adjUstment
in the monthly installments in the last month if not a full
calendar month, Said base rQnt shall be based on a triple
net lease. Under this triple net lease, Lessee shall be
responsible tor payment of all expenses including but not
limited to real estate taxes, insuranco, utilities, gas,
electric, sewerage, telephone, maintenance, snow removal,
garbage removal, cleaning, sanit~tlon, assessments, and IIny
other expenses in connecti&ft..r~n cne leased premise. with
the exception of oapit~l improvements.
-1-
J. PAYMENT Of TAXES AND ASSESSMENTS, The tessee shall
pay all ta~es that may be imposed, assessed or levied upon
the leased premi.es or propert.y thRfeon or any part thereot,
or upon the earnings at tessee a. the same shall become due
and payable, Lepses ghall promptly pay all special
a.sessments properly levied against Lhe premises for local
governments, provided however that tessee may conduct
proc.edings to contest or reduce any tax or other 1.Vy or
a.....m.nt against the premises, in the name of Lessor, at
the Bole co.t and .xpense at Les.ee.
4. CASUALTV IHSURA1'CE, Lessee shall keep all
building. and improvem.nts now or hereatter erected upon the
leased premises in.ured for the benefit of the Le..or and any
Mortgagee, its eUCCesSOrS and assigns, as their intereets may
trom time to time appear, against loss by tire and other
ca.ualtie. and hazards u.ually cover.d by extended coverage
insurance, in an amount not less than the replacement value
ot the leased premises (excluding foundations and other parts'
below the surface at the lowest floor), as d.termined, if
desired by Lessor, not more than once annually by an
appraiser or rating bureau satiSfactory to Lessor. All of
such pOlici.s shall have endorsed thereon standard lessor and
~ortgagee clauses in favor of the parties stated above in
this paragraph. Al.o, the atoresaid pOlicies shall have
attached thereto or the Lessee shall provide Loss of Rental
Insurance, insuring the Lessor and any Mortgagee against loss
of rental for a period at not less than one year and in an
amount equal to the gross aggregate rental receivable during
that period by Lessor hereunder, or Business Interruption
Insuranc., insuring all fixed charges of Lessee, including
the amount necessary to pay rent hereunder, for a period of
not less than one year, Such polici.s of insurance shall be
delivered to and held by the Lessor and/or any Mortgagee its
successors and assigns, The Lessor and/or any Mortgagee
shall have the right to settle all claims under such policies
and may demand, receive and receipt for all moneys becoming
payable thereunder, provided, however, that, with the written
approval of any Mortgagee, insurance proceeds payable
thereunder in the amount at Twenty-five Thousand Dollars
($25,000,00) or less shall be paid over to Lessor for use in
restoration or repairs to said premis.., and provided that
any proc.eds of insurance under the Loss of Rental Insurance
or Business Interruption Insurance received by the Lessor. or
any Mortgagee shall be refunded to Lessee, 60 long as Less.e
is not in default hereunder, and Les.or is not in default
under any said mortgage. Any sucn proceeds in the amount of
Twenty-five Thousand Dollars ($25,000.00) or more shall be
paid by the insurer to the Mortgagee and the Lessor as their
interests appear, and shall be applied by them toward the
alteration, reconstruction, repair or restoration of the
damaged portion of the leased premises in accordance with the
original plans and specifications. The Lessee shall deliver
to te..or and/or any Mortgagee, its successors and assigns,
evidence at payment of all premiums due on such J.nsurance,
together with certificates of such insurance, and
-2-
~.c?0 97 L4:29 F"ROt';8E~I.."lTE( ~ssnl.[I-HES 717. 76J- i'3'Ji'
TO: 717 764 4191
PAGF. , 0'3
all such pollcies ahall contain provision tor written notic.
to L.ssor and said Mortgagee not leee than ten (10) days in
advance of cancellation th.reof, In the event of the failure
of Lessee to insure or keep the eam. in.ur.d as aforesaid the
Lee.or may do all things ne~essarv to secure or maintain in
torc. .uch insurance, and any moneys expended by it for that
purpo.. .hall be payable by Lessee to Lessor on demand and
may b. r.covered as rent in arr.ars hereunder. In no event
shall there by any abate~ent whatsoever in the term ot this
lease for r.nt due and payable hereunder by reauon of any
interruption or interference with L.....'s us. and occupanoy
of the lea..d premises by reauon of any calamity, nor shall
any such interruption or intert.rence be deemed a
constructive eviction of L.sse. from the d.mis.d pr.mis.s.
Anything in this paragraph to the contrary notwithstanding,
in the event any casualty occure of .uch magnitude that
r..toration or reconstruction would be uneconomic in the
opinion of L...or, and it the in8u~.nce proceeds payable ae a.
r.sult th.reof are sufficient to repay in full any mort9a98
reterred to above, then L.sse. and Le.sor shall .ach have the
right and option to terminate this lease, and the proceeds ot
such insurance shall in such event be used to discharge such
indebtedness, Upon payment of all such indebt.dn... and such
t.rmination hereof, Le~sor shall b. entitled to any excess
insuranc. proce.ds.
5. INDEKNIFICATION AND LIABILITY INSURANCE, The
Lesse. will .ave harml.ss and indemnify the Lessor trom and
against all los., liability or expense that may b. incurred
by reason of any and all claims or demands trom any ~erson or
p.rson. whatsoever from loss, injury or damage .uffered or
alleged to be suffered by reason ot or in connection with the
occupancy and use of the said l.ased premises by or under the
L....e. its agents or employee. and Lessee shall maintain in
torce at all times during the term hereof required Workmen's
Compensation Insurance cove rag. in the statutory amounts, and
liability insurance in usual form in an amount not less than
One Million Dollars ($1,000,000,00) insuring the interest. of
Le..or and Lessee, in an insurance comp~ny or companie.
satisfactory to Lessor.
6. UTILITIES. The Le...e shall promptly pay all
charges tor gas, .lectric, .ewage, garbage removal, snow
removal, cleaning, sanitation, water and any other utility or
..rvic. turnished to or consumed by Lessee upon the leased
premises Which may become payable during the term of this
lease, In the event Lessee shall fail to pay the charges for
any of the aforesaid utilities or services or premiums on
insurance as they become due, the Lessor shall have the right
to pay same and to collect the amount so paid as rent in
arrears,
7.
equipment
on behalf
TITLE TO EQUIPMENT,
installed or plac.d
of Lessee which can
Title to any machinery or
upon the leased premises by or
be removed from the premise.
-)-
,
without causing material damage to the structures shsll
r.main the property at the Lessee, including any computer..
Th. Lessee covenants that it will remove the said machinery
or .quipment within thirt.y (30) days att.r the end of the
term ot the lease and will repair ^t ita own .xpense any
damage cau.ed the leased premises or structures erected
th.reon in the cours~ of such removal, All machinery or
.quipment of any kind that may be on the premi... during the
t.rm ot this lea.e shall be so situated at the risk of the
L....., and the L..aor ahall not be liable to the Le..ee or
any other person for any injury, loa. or damage to any person
or property on the premises.
6. ALTERATIONS ANO REPAIRS. The Lessee at it. sol.
COQt and expense may make any r.asonabl. alt.ration, addition
or change in the buildings or structures on the leased
premi..., provided, however, the Less.e shall not make any
alteration in the .xt.rnal elevation or architeotural desi9n~
at the buildings or .tructur.. on the pr.mi... or injure or
remove any bearing wallar .upport. thereof without the prior
written consent of the Lessor, All usual and necessary
r.pairs, normal wear and tear excepted, shall be mad. by
Les.e.. It the maintenanoe and repair responsibilities are
not undertaken on a current basis the Lessor sha],l have the
right but not the responsibility of undertaking such r.pairs
and maint.nance and or charging Le.... tor the same as
additional r.nt her.und~r. It the Lessee breaches its
responsibiliti.. h.r.under in addition to all other right..
Lessor shall have the right to apply any deposit or oth.r
tunds it holds for Lessee to pay such obligation and shall
have the right to ottset any maint.nanc. and repair
r.sponsibilities against any funds due, inCluding but not
li~ited to. any funds due trom Lessor to Lesse. as
compensation for early termination of this lea.e pursuant to
Para9raph 138. of this l.ase.
9. ASSIGNMENT AND SUBLETTING.
A. The Lessee at any time after the co~m.ncement
of the term 18ase may assign this lease and all its
rights under this instrument. to any corporation,
a..ociation, trust, partnership or individual, provid.d,
howev.r, that such corporation, association, trust
partn.rship or individual shall be approved in writing
by the Le.sor as financially responsible with r..pect to
probable ability to meet the rent payments tor the
balance of the t.rm, which written approval shall not be
unr.asonably withheld. The assignee in such event shall
attorn to the Leasor by agreeing in writing with Lessor
to pay the rent and carry out and perform all other
cov.nants and Obligations ot the Lessee hereunder.
Th.nceforth, the assignea shall be substituted for the
L..... and shall have all rights, duties and obligations
of the Lese.. hereunder, including without limitation,
the provisions of this paragraph relative to the right
-4-
to assign the lease, which riqht may be exercised from
time to time by any assiqnee for the time being on the
term. her.in provided, For the balance of the term
ther.atter reference. in this in.trument to the Lessee
ahall be deemed to refer to the aseiqnee, All nuch
assignments and agreements of attornment shall be
recorded in all place. of public record permitted or
required by law upon the request of the Le.sor, the
assignor or the as.iqnee. A..ignment hereunder .hall
not, however, operate to relieve L..... or any
gusrantors hereof of liability hereunder without the
writt.n con.ent of Leseor and the Mortgagee.
8, Acceptance of rent by the Lessor trom eny
assignee or other dealings by the Leesor with any
a..ignee without Lessor'. consent to such assignment
shall not ot themselvee operate to .ubstitute such
a..ign.. in place of the Lessee hereundor to or relieve I
the L..... of any of it. obligations under this
instrument.
C. Le.see may at any time during the term. hereor
subl.t any part or part. of the demised premises to any
corporation, association, trust, partnership or
individual, provided, however, that such corporation,
a.sociation, trust partner.hip or individual shall be
approved in writing by the Lessor as financially
rospon.ible with respect to probable ability to meet the
rent payments for the balance of the term, which written
approval shall not be unreasonably withheld. Any
.ubletting of the premiae& ahall not reli.ve L..... of
its primary obligation. under this lea.e,
D, Lessor shall have, at any time during the term
her.eof or prior to its commencement, the right to as.ign
its interest herein to any bank or other lending
institution a. full or partial security tor indebtedne..
secured by the demi.ed premise., and Lessee shall
execute in recordable form any documents necessary to
etrect .uch assignment,
Notwithstanding anything herein to the contrary
neither this l.a.. nor any right. hereunder shall be
assigned, nor any part or the leased premises sublet by
Lessee without the prior written consent of any
Mortgage..
10. CONDEMNATION. In the event the whole or any part
or the demis.d premises .hall be damaged, injured, condemned
or taken as a r..ult of the exercise of the power of eminent
domain or of private purchase in lieu t.hereof, or by the
exercise of any oth.r power or government, the amount ot any
award, settlement or paYJllent ("award") representing
compensation therefor shall belong entirely to Leesor. Rent
shall continue without abatement in such event except in the
-5-
ca.. of a partial or complete damage to or taking ot the
i.provements de.cribed herein, in which latter event, an
equitable reduction in rent shall be made baaed upon u..able
apace eo damage oc take; oc Lessor may, at its option, repair
or replace such damage or taking and rent will continu.
without abatem.nt thereafter,
11. LESSEE'S COVENANTS. Th. Lessee hereby cov.nants
and agrees with the LeSBor that during the term of this
lea..1
A. The Le.... will pay the rent at the times and in
the mann.r herein provided,
8. The Lessee, at its own expense, end not at the
expense or the Lessor, will keep, repair and maintain
the interior and exterior of the leased premises in the
.ame good quality and condition, making any required '
repair. and maintenance promptly, reasonable u.e and
ordinary wear and tear excepted,
C. Th. Lessee will save Lessor harmless and exonerate
it from and against all lOBB, damag., liability or
exp.nse occasion.d by the alleged or actual wrongful or
neglig.nt acts of the L.ss.e or its employees, agents or
guests or ot independent contractors engaged on the
premiees of or paid by the Lessee,
0, The Leseee ehall comply with all la~tul orders of
any r.deral or municipal authority, or of the
Commonwealth of pennsylvania, its boards, commissions,
agencies or d.partments, or the officers thereof, having
jurisdiction to issue the same, which may be necessary
for the occupancy of the leased premises or the
operation of Lessee's busin.ss thereon, and if Lessor
shall incur any expense in connection with the same,
Lesse. shall pay the same to Lessor, or if Lessee fails
to pay the ~am., L.ssor may collect the same as
additional rent hereunder,
E, Th. Lessee expressly covenants that it shall do no
ect or fail to do any act which (1) shall in any way
encumber the title of Lessor in and to said premises, or
(2) shall in any mann~r subject the interest or estate
of the L.ssor to any claim by way of lisn or
encumbrance, whether claimed by operation by law or by
virtue of any .xpressed or implied contract by the said
Lessee, Th. L..... acknowledges that any claim to a
lien upon the said leased premises arising trom any act
or omission of the Lessee shall accrue only against the
leasehold estate of the Lessee and shall in all r..p.ct.
be subj.ct to the paramount title and rights of the
Lessor and any mortgage in and to the said pr.mi...,
F. The Lessee agrees not to .nter into any contract
with any person, firm or corporation, for labor,
-6-
717.7~J.7J97
ro, "7 764 4191
PAGE'IJ
8.~vices or materials in connection with any buildinq to
be placed upon .aid premise. or to be rebuilt or
remodeled thereon, which contract involves an amount in
exce.. of Five Hundred Dollars ($500,00) unless it shall
be stipulated in and be 4 condition of such contract
that no liens shall arise or be claimed on account of
suoh contract or on account of any work done or material
furnished under said contract as against the title or
intere.t of the Lessor and Baid premis.s, or unless euch
contract provid.. that the contractor, p.r.on, tirm or
corporation shall waive all rights th.~eto,
12, INSPECTION AND REPAIRS BY LESSOR. Lessor re.erve.
the riqht to enter upon the lea.ed premises durin9 business
hours to inspect the same and to make neee..ary repairs in
the event Les.ee fails to make such repairs within thirty
(30) days after notice to Lessee by Lessor, and in such event
the coat of such repairs .hall be payable to Leeeor ae .
additional rent hereunder.
13. SURRENDER UPON TERMINATION.
A, Lessee hereby agrees peacefully to surrender the
le..ed premises to the Lessor at the expiration or
.ooner termination of the term hereof.
8, At any time durinq the le.se term, Lessor shall
have the riqht to offer the leased premises for sale and
to show prospective purchasers the leased premises and
turther shall have the riqht to qive Lessee nine month.
notlce ot earlier termination of the lease. In the
event that Lessee is qiven notice of early termination
ot the lease, Lessor agrees to pay Lessee $35,000,00 per
year, prorated tor any partial year, for the period trom
the Lessee's actual surrender ot the l.a..d premi... in
the event of early termination ot the lea.., Lo..ee
shall have no other riqhts aqainst Le.sor tor early
termination at law or in equity.
14. EFFECT OF WAIVER OF BREACH, No waiver by the
Lessor and no assent, expressed or implied, to any breach on
the part ot the Lessee by the Lessor ot any provision,
covenant or condition herein contained shall be held or
construed as a waiver of or assent to any breach ot the same
or any other covenant or condition.
15, DEFAULT. In the event ot any default by Lessee
under and pursuant to the terms and conditions ot this lease,
whether in the payment of rent or the failure to pertorm or
observe any of the covenants, agreements, provisions or
conditione herein contained, such default remaining uncured
~ '~tter thirty (30) days written notice thereat by Lessor to
'---Le.see, (Lessee being deemed not to be in default it
----following notice of default requiring performance ot
construction or repair work to cure, Lessee shall have
promptly commenced such work and have proceeded or be
-7-
. .
proceeding to the completion thereof with all due diligenc.),
or in the event the L.....'. e.tate in the leas.d premi.ee
shall be levied upon in execution or by other process ot law
and said execution or other proc... in not stayed or
satietied within twenty (20) daye trom the date ot the
isauanc. thereot, or in the ev.nt there shall be filed by or
a9ainst L..... any petition under the Bankruptcy Laws or any
insolv.ncy law., or Lessee shall assign any or allot it.
property to or for the benetit ot it. creditor., or if a
receiver shall be appointed tor all or any part of its
property, and it .uch bankruptcy or insolvency proc..dings,
or assignment for the benefit ot cr.ditor., or the
appointment ot a r.ceiver, shall not be discharged, vacated,
dismissed or otherwise terminated bnd ended within thirty
(30) days after the tiling of the eame or a valid appeal
taken therefrom i. ponding, then in any of such cases, L..8or~
may, upon the expiration of said period of time, or at any ~
time thereafter, and without further demand or notice, enter.
upon and into the l.a.e premi.e. and repossess the same a. of
its former estate and .xp.l and evict the Lessee and tho.e
claiming under it, all without prejudice to any other remedy
which might otherwise be taken to recover rent in arrears, or
tor any other breach or detault by the Les8ee, and upon such
entry as atoresaid, this leaee shall terminate without
prejudice to the rights of the Lessor hereunder which may be
exerci.ed atter the end of the term of this lease, No
release ~rom any expulsion or eviction as above provided, nor
the recaipt Ot Any rent after d.tault as above provided,
shall be deemed a waiver of Lessor's rights hereunder,
Further, in the event of any default as above provided, or in
the event of the continuance of any bankruptcy, execution,
insolvency, assignment, or receivership proceeding as above
set forth, for the .tat.d periods of time, or ths issuance ot
any execution process, (WhiCh event shall constitute a
default hereunder) then the rent for the balance of the term
hereof, together with any rent in arr.ar., shall, at the
option ot Lessor, at once become due and payable and shall be
collectible by Lessor'. distraint and .hall be first paid out
ot the proceeds of the said execution, assignment or
bankruptcy, any law, usage or custom to the contrary
notwithstanding, without waiving any other right to collect
damages tor such detault by Lessee.
16, EJECTMENT AND CONFESSION OF JUDGMF.NT. At the end
of the term hereof, or in the event of default as described
in Paragraph 16 above, which default shall not be cured by
Lessee within the periods stated, Lessoe agrees that
tollowing a written notice by the Lessor to the Lossee ot
intention to do so not le.s than ten (10) days prior to such
entry (WhiCh ~en (10) day period may run concurrently with
the notices provided for in Paragraph 16 above) an amicable
action at ejectment may be entered in tho Court of Common
Pleas of Cumberland county, P.nnsylvania, in which Lessor,
its successors and assign., shall be the plaintiff and Lessee
and/or any other party in possession shall be the defendant,
-8-
"
and that jUdgment may be entered in tavor at the plaintitt
tor the po.s..sion ot the leas.d premi..., and that a writ ot
poss..sion may b. i..u.d thereon, with costs, waiving error.
and detects, r.iqht of appeal or stay. Less.. h.r.by .mpowers
any attorney to appear tor it in said amicable action in
ejectm.nt in .aid Court, an~ confe8s judgment ther.in, with
oosts, in favor of Leesor, its successor. or assigns, Any
jUdgm.nt ent.r.d hereunder shall provide only tor .jeotm.nt
and possesuion of the leased premis.s, and costs, and shall
not include any other damages. Such authority shall not be
exhausted by one exerci.. ther.of but judgment may be
contessed as atoresaid from time to time.
17. CONFESSlON OF MONEV JUDGMENT, In the event at any
default in the payment at rent by te.se. or any breach ot any
covenant to pay any amount due or to become dU$ Les.or under
the terms of this Lea.., L..... does hereby empow.r any
attorn.y ot any court of record to app.ar tor Leeses, and,
with or without deolaration, to confess judgment again.t
Lessee, and in favor ot L...or for the sum ot the rent then
due and/or tor thd .um due by reason at any breach at any
covenant by L....., with costs ot .uit and an attorney'.
commie. ion of fitteen per cent (1~') for oollection, and to
issue writs ot execution thereon with relea.. of all error a
and without stay of execution, L...ee hereby waives the
right of inqUisition, and ext.nlion upon any levy on any real
..tate and hereby voluntarily condemns the same, and the
exemption of any and all prop.rty from levy on any real
..tate, and hereby voluntarily condemns the sa~e, and the
eXe~ption ot any and all property trom levy and sale by
virtue at any .xemption laws now in foroe or which may be
hereatt.r passed is also expr..sly waived by lessee. Such
authority Shall not be exhaulted by one exercise thereat but
judgm.nt may be cont....d as aforesaid from time to time,
lB. NOTICES, Any notiae, demand or requ..t required or
provided for by this instrument shall be deem.d to have b.en
duly qiv.n or made, it 1n writing and sent by registered or
certified mail, poetage pr.paid, addressed to the party to be
bound thereby at ouch addre.. set out below, or such other
place as the parties may from time to time designate in
writing:
.
It to t.ssor:
ERrORD DEVELOPMENT COMPANY
CIO Louis Berger Trust IBAprilB4
100 HalsteJ Str..t
East Orange, NJ 07019
Attention: Fredric $, Berger, Trustee
If to Lessee:
BENATEC ASSOCIATES, IHC,
101 Ertord Road
Camp Hill, Pennsylvania 17011
"
-9-
19, QUIET ENJOYMENT, Lesuor covenants t.hat the Le....
on paying the rent herein re..rved and performing the
cov.nants above .et torth uhall and may peaceably and quiutly
hav., hold and enjoy the .aid demised premises tor the t.rm
afor.said,
~O, GOOD TITLE. Lessor covenants to and with Lessee
that Le..or has qood title to the land subject to this Lea.e
and to the building erected thereon and that it is duly
authorized by law and by appropriate action of it. member.hip
to enter into this Lease.
~1. CONSENT BY LESSOR,
the con.ent of the Lessor is
be unreasonably withheld.
22. CONSTRUCTION, Whenever requir.d by the context
herein, references to parties shall include their respective
SUcce..ors and assigns (SUbject to the limitation of I
Paragraph 11) to one gender shall include all genders, and to
ths singular the plural.
wherever in the foregoing leatie
requir.d, such consent shall not
23. ENTIRE AGREEMENT. This lease constitute. the
entire agreement between Lessor and Lessee and may not be
modified or amended except in writing signed by the parties
hereto,
24, RECORDABLE MEMORANDUM. The partie. hereto agre.
that they will execute a memorandum of this lease duly
acknowledged and that the sam. shall be recorded in the
office of the Recorder of Deeds of Cumberland county,
Pllnn.yivanta.
IN WITNESS WHEREOF, each of the partie. hereto has
caused this instrument to be executed in its name and behalf
by it. duly authorized representative as of the day and year
above writt.n.
'-~.
LESSOR
ERrORD DEVELOPMENT COMPANY
L~r~
Fredric Berger, Truste.,
Par.tner ~
(; .X r-~
An~D' sln eusanio
Part ,7 U '
, ,r.T{2, 14-
Partner
WITNESS:
~
An"
I /
( wi),
(
LESSEE
B TEe
INC,
J mea Scheiner, President
uly authori zed
(SEAL)
-10-
I,~' 27 F"ROM' 8E~iATIEC A550<: tATE5 717.763' 739"
ra,n7 7GoI 01191
PAGE~03
ESTOPPEL CERTIfICATE
Re,
I..ase dated October 25,
company lthd "t.andlord" 1
"Tenant "I. as amended and
1991. billtwe>2n Erford Cevelopment:
ar.d Benar,ec Associ.ate". Inc. (the
llupplemillnted (the "l.ease").
Oear PA 240 Associ.ates:
This [.toppel Certificate ill furnished to
with the proposed assignment of the t.ease and
improved real estate, The t.andlord and Tenant
you, your .uccessors and assign., that,
1, The Tenant i. in posee..ion under the Lease;
2, The Tenant has paid the basic monthly rent due under the
Lease. in the amount of $9.000,00, for the period ending July 31.
1997;
3. The Tenant hall paid all
obHgationa due under the Le..,e for
1997,
4, The Lease has not been modHied. amended or otherwise
changed in writing lif untrue. set forth the dates of all
instruments conta~n~ng such modif icati'Jns. amendments and other
changes at the end of this clausel ;
S. The t.eall>!! has not been modified, amendo!d or othu'wise q.1
chang>!!d in any other manner '6:~"'"t T\olt." ~~'cs:."1YV-GNH 0('=0 ~J;.., , ,'I 't ~~
. ......~... ~p...." ~,~ ~". l'lq t I .
6, To tho! best of its knowledgd. Landlord is not in default: ~
in the performance of any of its obligations under the Le.5se a. !if
Landlord, ,YL
c
7, To the best of Landlord's knowled~e. there is no ~A
conditicn or set of facts which ~~t~ ~~~. ~F ~irne and/or t~~~~
gj u; "g "p ..,~~ j r...... would constitute a default by the Landlord in the (/fit'
performance of any of its obli~&tions under the Le.iSo!l; :/,J-..
a. Neither Landlord nor Tenant has any knowledge that
Tenant is in default In the p>!!rEcrmance of any of its obl~gations
you in connection
attendant .ale of
hereby confirm to
e:cpenses and other Tenant
the period ending July 31,
under the Lease;
9, Landlord has r.o know:edge of an:' condit~on
facl':s whi.ch \.#1...l. roOt,",!; ~a,;:,~agt. sf t:.'~z. .1R:t/Q'" ..~.. g;,jlng
EXHIBIT "B"
or set of
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BENATEC ASSOCIATES, INC., I IN THE COURT OF COMMON PLEAS
petitionel:' I CUMBERLAND COUNTY, PENNSYLVANIA
I C"b'
v. I NO. r~7-4'J{)c>
I
PA 240 ASSOCIATES, I
Respondent I CIVIL ACTION - EQUITY
c: () ~/P /...1711-/'1- /II l'QvITY
-,
AND NOW comes the Petitionel:', Benatec Associates, Inc., by and
through its attol:'neys, Wix, Wenger & weidner, and seeks issuance of
a Preliminal:'Y and Special Injunction pursuant to Pennsylvania Rules
of Civil Pl:'ocedure No. 1531, and in support alleges as follows:
1. Petitioner is Benatec Associates, Inc., a cOl:'poration
providing professional engineering and related services and having
offices at 101 Erford Road, camp Hill, Cumberland county,
Pennsylvania.
2. Respondent is PA 240 Associates, a partnership having
offices at 110 Sunset Avenue, Harrisburg, Dauphin County,
Pennsylvania.
3. The subject matter of this action is the threatened
disruption of Petitioner'S occupancy of the premises at 101 Erford
Road by Respondent,
4. Petitioner is the lessee of the premises.
5. Respondent is the lessor of the premises by way of
assignment of the written lease and infol:'mal amendatory
transactions, all described below.
, ,
"
6. Petitioner entered a written lease with the prior owner
ot the premises, said lease having a stated term ot five years
beginning April 1, 1992. A copy ot the lease is attached as
Exhibit "A".
7. The term of the lease was extended by informal agreement
of Petitioner and the original lessor.
8. On or about July 14, 1997, Respondent entered upon a
purchase agreement with the original lessor, whereby Respondent
acquired title to the premises and received an assignment of the
original lessor's interest in Petitioner's lease,
9. At or before the time of settlement, Petitioner
stipulated with the original lessor that Petitioner would hold over
occupancy of the premises beyond the stated termination date.
Petitioner and the original lessor evidenced said stipulation by a
writing entitled "Estoppel certificate" dated July 14, 1997. A
copy of said Estoppel certificate is attached hereto as Exhibit
"Bit.
10. Said Estoppel certificate was delivered to and accepted
by Respondent at or before settlement on its purchase of the
pr.em.i.ses.
11. Respondent accepted said Estoppel certificate, raised no
objection to Petitioner'S continued occupancy, and accepted one or
more payments from Petitioner.
2
.
12, Verbally, prior to August 28, 1997, and in writing on
that date, Petitioner advised Respondent that Petitioner would
vacate the premises on October 4, 1997, A copy of the writing by
which said notice was given is attached hereto as l::xhibit "C".
13, On or before August 28, 1997, Petitioner paid to
Respondont rental payment for the period September 1 through
October 4, 1997. The amount of said payment was at the same ra~e
as was previously charged under the leasa.
14. Respondent has given no notice to quit, adequate within
the provisions of 68 P.S. S 250.501, which provides in relevant
part:
A landlord desirous of repossessing real
property from a tenant may notify, in wr.iting,
the tenant to remove from the same at the
expiration of the time specified in the notice
under the following circumstances, namely...
In case of the expiration of a term or of
a forfeiture for breach of the conditions of
the lease where the lease is for any term of
less than one year or for an indeterminate
time, the notice shall specify that the tenant
shall remove within thirty days from the date
of service thereof, and when the lease is for
one year or more, then within three months
from the date of service thereof.
15. At or about 3: 10 p. m, on Thursday, August 28, 1997,
Respondent, stating dissatisfaction with the amount of the rental
payment made by Petitioner, telephoned Petitioner and stated that
on or about September 2, 1997, Respondent would enter the premises,
3
1. _....~
.
regardless ot Petitioner's objections, and would remove or render
inoperable the premise's eleotrical, heating, and ventilation
tacilities and take such other measures as may be required to
render the premises uninhabitable.
16. Petitioner avers it is in lawful possession of the
premises and said lawful possession continues through October 4,
1997.
17. Petitioner believes the action threatened by Respondent
will occur if Respondent is unrestrained, and that such action will
constitute an illegal physical seizure of the premises and eviction
of Petitionor.
J.8. Petitioner avers that its physical eviction by Respondent
by rendering the premises uninhabitable is inequitable and contrary
to law.
19. Physical eviction of a tenant by a landlord is illegal in
pennsylvania under the provisions of The Landlord and Tenant Act,
68 P.S. 250.501, which provides the exclusive remedies of the
landlord, and the case law interpreting the Act, See Lenair v.
Camcbell, 31 D. & C. 3d 237 (1984),
20. Petitioner believes and therefore avers that such
physical eviction is imminent and will occur unless this Court
enters an Order prohibiting such physical eviction.
4
21. Physical eviction as threatened by Respondent will render
petitioner incapable of conducting it. bu.ine.. during the period
September 1 through octobor 4, 1997, and will irreparably impair
Petitioner's future business to an undetermined but substantial
extent.
22. The relief requested by Petitioner is necessary to
prevent immediate and irreparable harm which cannot be compensated
by damages because the complete incapacity to do business, caused
by Petitioner's physical eviction from its offices, will destroy
its ability to perform its existing business obligations, will
impair its ability to obtain future business, and will diminish
good will and reputation which are ellsential elements in the
professional engineering services business in which Petitioner is
engaged.
23, Greater injury would result by refusing the requested
relief than by granting it because rental for the period in
questlon has been fully paid by Petitioner, Respondent has known
and has planned for Petitioner's occupancy through October 4, 1997,
so that even if Petitioner's occupancy is ultimately found to have
been unlawful, Respondent would have been paid for the use of the
premises and will have incurred little or no injury on account of
Peti tioner' s occupancy. conversely, if the requested relief is
denied, Petitioner will suffer substantial harm in the form of
disruption ot its business activity as described above.
5
24. The requested reliet will maintain the relative status ot
the parties until such time as their respective legal rights can be
adjudicated.
conversely, it the requested reliet is denied,
physical eviction ot petitioner will dramatically change the status
ot the parties and will inflict upon Petitioner substantial injury,
which may not be adequately compensable by money damages.
25. The activity sought here to be restrained is the physical
eviction ot a tenant by a lessor without recourse to legal process.
Such activity is clearly actionable under Pennsylvania law and will
be prevented by the requested relief.
26. Petitioner's right to the requested relief is clear in
that Petitioner seeks to rostra in physical eviction by a lessor, an
activity which is clearly illegal under Pennsylvania law.
27. Petitioner has no adequate remedy at law to redress the
impending harm from Respondent's threatened action.
28. Unless the requested relief is granted, Petitioner will
sufter immediate, substantial, and irreparable injury as a result
of Respondent's threatened physical eviction in that:
(a) Petitioner will lose substantial business opportunities
and profits on account of the loss of the premises that
is its office and base of operations; and
(b) Petitioner will lose good will and reputation on account
of its inability to conduct its professional service
business activity.
6
29. Unless the requested reliet is granted, Petitioner will
sutter immediate and irreparable harm betore a hearing can be held
I
on this subject matter in that the physical eviction, threatened by
Respondent, will occur within a time earlier than a hearing can be
held.
Moreover, lJhysical eviction is so clearly illegal under
Pennsylvania law that it is highly unlikely that Respondent could
establish a right to such physical eviction if a hearing were held.
30. Because rent for the period in question is fully paid,
and because the relief requested would restrain a clearly illegal
act of physical eviction, Petitioner believes a bond is
inappropriate in the instant case and, therefore, requests the
Court to waive bond or set bond in a nominal amount.
31. Because performance of the threatened action would cause
immediate and irreparable harm to Petitioner, and would occur prior
to tho time a hearing could be held on this Petition, Petitioner
requests this Court to order the requested relief prior to any
hearing on this subject matter.
32. Entry of a preliminary injunction to prevent the
performance of threaten acts is a proper use of equity powers.
See Philadelohia Gas Works Comoanv v. Philadelohia, 331 Pa. 321
(1938) .
WHEREFORE, Petitioner, pursuant to Pa. R.C.P. S 1531(a),
requests that a preliminary injunction be granted by this Court
restraining Respondent from any action disturbing the habitability
of the premises by Petitioner or disturbing Petitioner's quiet
7
AUG-20.97 14127 FROMI8EN~TEC ~Ssn~I~TES 717-763-7397
TOI717 7644191
I
PAGE '07
10/.2S /~ t
LEASE
THIS INDENTURE made and executed this ____ day of
, 1992 by and between ERFORD DEVELOPMENT
COMPANY, a partnership, with its principal office in East
Orange, New Jersey, hereinafter called >>LESSOR", party of the
rirst part,
AND
DENATEC ASSOCIATES, INC., a Pennsylvania corporation
having its principal ottice in Camp Hill, pennsylvania,
hereinafter called "LESSEE", party of the second part;
WITNESSETH:
The Lessor doen hereby lease unto Lessee all those
certain premises set forth in the description thereof which
is attached hereto and made a part hereor as Exhibit "A",
known as 101 Ertord Road, Camp Hill, Cumberland County,
Pennsylvania, and the structures erected thereon, togother
with all easements, rights of way and rights of acc.as
appurtenant thereto, upon the following terms and
conditions:
1, TERM OF LEASE. The term of this lea~e shall be for
a period of five (5) years commencing on the 1st day of
April, 1992, unless sooner terminated by Lessor pursuant to
paragraph 136.
2. RENT. Lessee shall pay rent for said premises at
such place as designated by Lessor in writing as follows:
The base rent for the term ot the lease shall be
~ive Hundred Ninety-~ive Thousand ($595,000.00) dollar.,
payable as tollows:
Beginning with the first day of the month coincident
with the commencement ot the term hereof as provided above,
Lessee shall pay rent for the remainlng ter.m of this lease in
equal consecutive monthly installments of Ten Thousand
Dollars ($10,000.00), with the first month to be reduced by a
five thousand ($5,000,00) signing bonus, so that the first
month's rent will be five thousand ($5,000,00) dollars,
payable on the first day of each month thereafter, the tirst
such payment to be made on the first day of the tirst month
of the term as set forth above, with appropriate adjustment
in the monthly installments in the last month if not a full
calendar month, Said base rent shall be based on a triple
net lease, Under this triple net lease, Lessee shall be
responsible tor payment of all expenses including but not
limited to real estate taxes, insurance, utilities, g8S,
electric, sewerage, telephone, maintenance, snow removal,
garbage removal, cleaning, Banit~tion, assessments, and any
other expenses in connecti~n ..xcn ~ne leased premises with
the exception of oapital improvements.
-1-
Al)G-20 97 14128 FRO~lleEtIATE( AS'30([AfES 717-763-,'3"17
fOI717 764 4191
PAGE, 08
3, PAYMENT or TAXES AND ASSESSMENTS, The Lessee shall
pay all taxes that may be imposed, assess.d or levied upon
the leased premi..s or property thereon or any part th.r.ot,
or upon the earnings ot L.ssee as the aame shall become due
and payable. L.ases 6hall promptly pay all special
assessments properly levied ag~inBt tho premises for local
gov.rnments, provided howev.r that L.ssee may conduct
proc.edinqs to contust or reduce any tax or other levy or
as....m.nt against the premises, in tho name of Lessor, at
the sole cost and expense of Lessee,
4. CASUALTV INSURANCE. Lessee sha 11 keep all
buildings and improv.ments now or hereaft.r erected upon the
leased premises ineured for the benefit of the L.ssor and any
Mortgagee, its successors and assigns, 4S their interests may
from time to time appear, against 10BB by fire and other
ca.ualti.. and hazards u.ually cover.d by extended coverage
insurance, in an amount not less than the replacement value
at the leased premises (excluding foundations and oth~r parts'
below the surtace of the lowest floor), a. d.termined, if
desired by Le~eor, not more than once annually by an
apprais.r or rating bur.au .atisfactory to Lessor'. Allot
such pOlici.s shall have endorsed thereon standard lessor and
mortgagee clauses in favor of the parties stated above in
this paraqraph, Also, the aforesaid pOlicies shall have
attached thereto or the Lessee shall provide Loss ot Rental
Insurance, insuring the Lessor and any Mortgagee against loss
of rental for a period ot not less than one year and in an
amount equal to the gross aggregate rental receivable during
that period by Lessor hereunder, or Business Interruption
Insuranc., insuring all fixed charges of Lesse., including
the amount n.cessary to pay rent hereunder, for a period of
not l.ss than one year. Such polici.s of insurance shall be
delivered to and held by the L.esor and/or any Mortgage. its
euccessors and assigns. The Lessor and/or any Mortgagee
shall have the right to settle all claims under such policies
and Inay demand, receive and r.ceipt for all moneys becoming
payable thereunder, provided, hQwever, that, with the written
approval of any Mortgagee, insurance proceeds payable
thereunder in the amount ot Twenty-five Thousand Dollars
($25,000.00) or less shall be paid over to Lessor for use in
restoration or repairs to said premise., and provided that
any proc.eds of insurance under the Loss of Rental Insurance
or Business Interruption Insurance received by the Lessor or
any Mortgagee shall be refunded to L.ssee, SO long as Less.e
is not in default hereunder, and Lessor is not in default
under any said mortgage. Any such proceeds in the amount of
Tw.nty-five Thousand Dolla~s ($25,000.00) or more shall be
paid by the insurer to the Mortgagee and the Lessor a. their
int.rests appear, and shall be appli.d by them toward the
alt.ration, rQconstruction, repair or restoration ot the
damaged portion of the leased premis.s in accordance with the
original plan. and specifications. The Lessee shall deliver
to L..eor and/or any Mortgagee, itA successors and assigns,
evid.nce of payment of all premiums due on such insurance,
together with certificates of such insurance, and
-2-
f~G-i?O 97 14:2? ':RO~I:8E~I~)TEI: ..-6~nl-IHTES 71,-.b).7)97
TO:?I? 764 .U'31
PAGE I 09
all such policies shall contain ~roviBion tor written notic.
to L...or and said Hort9agee not le.. than ten (10) days in
adv4nco of cancellation thereot. In the event of the failure
of Lessee to insure or keop the .am. in.ur.d a~ atoresaid the
Lee.or may do all thin9s ne~~SBarV to secure or maintain in
force .uch insuranc., and any moneys Bxpanded by it for that
purpo.. .hall be payable by Lessee to Leanor on demand and
may b. recovered as rent in arrears hereunder. In no event
shall there by Bny abatement whateoovor in tho term or this
lease for rent due and payable hereunder by reBDon of any
interruption or interfer.nc. with L.....'s use and occupancy
of the lea..d premises by roason of any calamity, nor shall
any such interruption or intsrterence be deemed a
constructive eviction of Lessee trom the demis.d pr.mises.
Anything in this paragraph to the contrary notwithstanding,
in the event any casualty occurs ot such magnitude that
r..toration or reconstruction would be uneconomic in the
opinion or Le..or, and it ths inBurancB proceeds payable ae a.
result th~reof are sufticient to repay in full any mortgage
rererr.d to above, then Lessee and Lessor shall .ach have the
right and option to terminate this leaee, and the proceeds or
such insurance shall in such event be used to discharg. such
indebtedness. Upon payment of all such indebtedness and such
termination hereor, L.ssor shall be entitled to any excess
insurance proc..ds.
5. INDEMNIFICATION AND LIABILITY INSURANCE. The
Lessee will save harml.ss and indemnify the Lessor trom and
aqainst all loss, liability or expense that may be incurred
by r.ason of any and all claims or demands from any person or
persons whatsoever from 10s6, injury or damage suffered or
alleged to be suffered by reason or or in connection with the
occupancy and use of the said leas.d premises by or und.r the
L..s.e, its agents or employees and Lessee shall maintain in
torce at all times during the t.rm hereof required Workmen's
Comp.nsation Insurance cove rag. in the statutory amounts, and
liability insurance in usual form in an amount not less than
One Million Dollars ($1,000,000.00) insuring the interest. of
Le.sor and Lessee, in an insurance company or companies
satisfactory to Lessor.
6. UTILITIES. Th. Less.e shall promptly pay all
charges tor gas, el.ctric, sewage, garbage removal, snow
removal, cl.aning, sanitation, water and any oth.r utility or
.ervic. furnished to or consumed by Lessee upon the leased
premises Which may become payable durin9 the term of this
l.a.e. In the event Lessee shall fail to pay the charges for
any of the aforesaid utilities or servic.s or premiums on
ineurance as they become due, the Lessor shall have the right
to pay same and to coll.ct the amount eo paid as rent in
arrellrs.
7.
equipm..nt
on behalr
TITLE TO EQUIPMENT.
installed or placed
ot l.essee whIch can
Title to any machinery or
upon the l.ased premises by or
be r.mov.d from the premis..
-1-
AlJG'20 97 14130 FROI't'SENATE( ASSll<:!ATES 717-,63-7397
TO' 717 764 4191
(
PAGEl 10
without causing material damage to th~ ~tructure. shall
remain the property ot the Lessee, including any computere.
Th. Lessee cov.nants that it will remove the said machinery
or .quipment within thirty (30) day~ atter the end of the
term ot the leaBQ BnQ will repair at its own expense any
damege cau..d the leas.d premises or structures erected
thereon in the course of such r.moval. All machinery or
equipment of any kind that may be on the pr.mi..s ~urinq the
t.rm ot this lea.e shall be so uituated at the risk of the
L....., and the L..sor shall not be liablo to the Leseee or
any other p~rson for any injury, 10.. or damage to any person
or property on the premises.
8. ALTERATIONS ANO RE~AIRS. Th. Lessee at ita sole
cost and expense may make any r.asonabl. alteration, addition
or change in the buildings or structures on the leased
premis.., provided, however, the Lessee shall not make any
alteration in the ext.rnal elevation or architeotural design'
of the buildings or structures on the pr.mis.s or injure or
remove any bearing wall or .upporte thereof without the prior
written consent of the Lessor. All usual and necessary
r.pairs, normal wear and tear excepted, shall be made by
Lessee. If the maintenanoe and repair responsibilities are
not undertaken on a current basis the Lessor shall have the
right but not the responsibility of undertaking such repairs
and maintenance and or charging Les... tor the same as
additional r..nt her.und~r.. If the Lessee breaches its
responsibilities h.reunder in addition to all other right.,
LBssor shall have the right to apply any deposit or oth.r
tunds it holds for Lessee to pay such obligation and shall
have the ri~ht to offset any maintenance and repair
responsibillties against any runds due, inCluding but not
limited to, any funds due from Lessor to Less.. as
',ompensation for early termination of this leaee pursuant to
Paragraph 138. of this lease.
9. ASSIGNMENT AND SUBLETTING.
A. The Lessee at any time atter the commencement
of the term leas~ may assign this lease and all its
rights under this in.trument, to any corporation,
association, trust, partnership or individual, provided,
howev.r, that such corporation, association, trust
partn.rship or individual shall be approved in writing
by the Lessor as financially responsible with respect to
probable ability to meet the rent payments tor the
balance of the t.rm, which written approval shall not be
unreasonably withheld. The assignee in such event shall
attorn to the Lessor by agreeing in writing with Lessor
to pay the rent and carry out and p.rform all other
cov.nants and obligBtions of the Lessee hereunder.
Th.ncetorth, the assignee shall be substituted for the
L..... and shall have all rights, duties and obligations
of the Less.e hercunaer, includinq without limitation,
the provisions of this p~ragraph relative to the right
-4-
AUG-20 97 14.30 FROMIBEN~TE( ASsnCIATES 7l7.7GJ.7397
TO' 717 764 4191
PAGE, 11
to as.ign the leaso, which right may be exercised from
time to time by ~ny assignee tor the time bein~ on the
terms herein provided. For the balance of the term
thereafter reference. in this instrument to th8 Lessee
shall be deemed to refer to the assignee. All such
assignments and agreements of attornment Dhall be
recorded in all places ot public record permitted or
required by law upon the request of the Lessor, the
assignor or the assignee. Assignment hereunder shall
not, however, operate to relieve Les.ee or any
guar4ntors hereof of liability hereunder without the
written consent of Leseor and the Mortgagee.
B. Acceptance of rent by the Lessor from any
assignee or other dealings by the Lessor with any
assigne. without Lessor's consent to such assignment
shall not of themselves operate to substitute such
assignee in place or the Lessee hereunder to or relieve .
the L....e of any of its obligations under this
inetrument.
C. Lessee may at any time during the terms hereot
subl.t any part or parts or the demised premises to any
corporation, association, trust, partnership or
individual, provided, however, that such corporation,
association, truet partnership or individual shall be
approved in writing by the Lessor as tinancially
responsible with ~espect to probable ability to meet the
rent payments for the balance of the term, which written
approval shall not be unreasonably withheld. Any
SUbletting of the premise~ shall not relieve Lassee of
its primary obligations under this lea.e.
D. Lessor shall have, at any time during the term
hereof or prior to its commencement, the right to assign
its inter.st herein to any bank or other lending
institution as full or partial security ror indebtedness
eecured by the demi.ed premise., and Lessee shall
execute in recordable form any documents necessary to
ettect such assignment.
Notwithstanding anything herein to the contrary
neither thi5 lease nor any ~i9ht. hereunder shall be
assigned, nor any part of the leased premises sublet by
Lessee without the prior written consent of any
Mortgagee.
10. CONDEMNATION. In the event the whole or any part
ot the demised premises shall be damaged, injured, condemned
or taken as a result or the exercise or the power of eminent
domain or of private purchase in lieu thereof, or by the
exercise of any other power or government, the amount ot any
award, settlement or paYJllent ("award") representing
compensation therefor shall belong entirely to Lessor. Rent
.hall continue without abatement in such event except in the
-5-
AUG-i:10 97 141 3" FROMI8E~IATE': ,1S'OIY [MES i'l 7 -7t;]-73'F
TOll17 764 4191
PAGE 112
case ot a partial or completo damage to or taking of the
il'4provem.nts described h.rein, in which latter event, an
equitable r.duction in rent shall bo made based upon u..able
Bpace eo damage or take; or LOSfior may, at itn option, repair
or replace suoh damage or taking and r.nt will continue
without abetem.nt thereaft.r.
11. LESSEE'S COVENANTS. Th. Lessee hereby covenants
and agreeB with the Lessor that during the term of this
lease:
A. The Le.... will pay the rent at the times and in
the manner herein provided.
B. The Lessee, at its own expense, and not at the
expense of the Lessor, will keep, repair and maintain
the interior and exterior of the leased premises in the
same good quality and condition, making any required
repairs and maintenance promptly, re~sonable use and
ordinary wear and tear except.d.
C. The Lessee will save Lessor harmlesB and exonerate
it from and against all 10s6, damag., liability or
.xpense occasioned by the alleged or actual wrongful or
negligent acts of the Lees.. or its employees, agents or
quests or of independent contractors engaged on the
premiees of or paid by the Lessee.
D. The Lessee shall comply with all lawful orders ot
any f.deral or municipal authority, or of the
Commonw.alth of Pennsylvania, its boards, commissions,
agencies or departments, or the officers thereof, having
juriSdiction to issue the same, which may be necesBary
for the occupancy of the leased premises or the
operation of Lessee's business thereon, and it Lessor
shall incur any expense in connection with the same,
Lessee shall pay the same to Lessor, or if Lessee fails
to pay the same, L.ssor may collect the same as
additional rent hereunder.
E. Th. Lessee expressly covenants that it shall do no
act or fail to do any act which (1) shall in any way
encumber the title ot Lessor in and to said premises, or
(2) shall in any manner subject the interest or estate
of the L.ssor to any claim by way of lien or
encumbrance, whether claimed by operation by law or by
virtue of any .xpressed or implied contract by the said
Lessee. Th. Lessee acknowledges that any claim to a
lien upon the said leased premises arising from any act
or omission of the Lessee shall accrue only against the
leasehold estate of the Lessee and shall in all r.sp.ets
be subj.ct to the paramount title and rights ot the
Lessor and any mortgage in and to the said pr.mi....
F. Th. Lessee agre.s not to .nter into any contract
with any person, firm or corporation, tor labor,
-6-
t:lJG-20 '37 14'31 I'RO~1l8EtIArE': AS,.;,y!.HES
j'17-76J.719,'
TOlr'? 764 4191
PAGEl 13
services or materials in connection with any building to
be placed upon said promise. or to be rebuilt or
r~modeled thereon, Which contract involveR an amount in
excess of Five Hundrod Dollars ($~oo.OO) unless it shall
be st\pulatod in and be a condition ot such contract
that no liens shall arise or be claimed on account of
elloh contract or on account of any work done or material
turnished under said contract ao against the title or
interest of the Lessor and said premi.~s, or unless such
contraot provides that the contractor, person, tirm or
oorporation ehall waive all rights thereto.
12. INSPECTION AND REPAIRS BY LESSOR. LesBor re.erve.
the right to enter upon the leased premises during bUBineos
hours to inspect the same and to make neces.ary repairs in
the event Lessee fails to make such repairs within thirty
(30) days after notice to Lessee by Lessor, and in such event
the cost of such repairs shall be payable to LeSBor as
additional rent hereunder.
13. SURRENDER UPON TERMINATION.
A. Lessee hereby agrees peacefully to surrender the
leased premises to the Lessor at the expiration or
sooner termination ot the term hereof.
B. At any time during the lease term, Lessor shall
have the right to offer tho leasud premiees for sale and
to show prospective purchasers the leased premises and
rurther shall have the right to give Lessee nine months
notice ot earlier termination of the lease. In the
event that Lessee is given notice of early termination
of the lease, Lessor agrees to pay Leosee $35,000.00 per
year, prorated for any partial year, for the period from
the Lessee's actual surrender of the lea.ed premi.e. in
the event of early termination of the lea.e. Lesse8
shall have no other rights against Le.sor for early
termination at law or in equity.
14. EFFECT OF WAIVER OF BREACH. No waiver by the
Lessor and no assent, expressed or implied, to any breach on
the part of the Lessee by the Lessor of any provision,
covenant or condition herein contained shall be held or
construed as a waiver of or assent to any breach ot the same
or any other covenant or condition.
15. DEFAULT. In the event of any default by Lessee
under and pursuant to the terms and conditions ot this lea.e,
whether in the payment of rent or the failure to pertorm or
observe any of the covenants, agreements, provisions or
conditione herein contained, such default remaining uncured
~'-
~tter thirty (30) days written notice thereof by Lessor to
---Les.ee, (Lessee being deemed not to be in default if
----fOllowing notice of detault requiring performance ot
construction or repair work to cure, Lessee shall have
promptly commenced such work and have proceeded or be
-7-
1~131 FPO~IIBEtjATE': >lS';IYIATES 717-763-7397
proceeding to the completion thereof with all due diligenc.) ,
or in the event the L.....'. ..tate in the leased premie8s
shall be levied upon in oxecution o~ by other prooes~ ot law
and said execution or other proc.s. in not stay.d or
satisfied within twenty (20) days from the date ot the
issuanc. thereot, or in the ev.nt th.re shall be filed by or
against Le.s.e any petition under the Bankruptcy Laws or any
in.olv.ncy laws, or Lessee shall aBsign any o~ allot its
property to or for the benefit of its creditors, or if a
receiver shall be appoint.d for all or any part of its
property, and if such bankruptcy or insolvency proc..dings,
or assignment for the benetit of cr.ditors, or the
appointment ot a receiver, shall not be discharged, vacat.d,
dismisBed or otherwise terminated and ended within thirty
(30) days otter the filing of the same or a valid appeal
taken therefrom '.11 pend ing, then in any of such callie., Le&sor~
may, upon the expiration of said period of time, or at any ~
time thereafter, and without further demand or notice, enter.
upon and into the le.s. pr.mise. and repossess the same a. of
its torm.r estate and .xpel and evict the Leseee and those
claiming und.r it, all without projudice to any oth.r remedy
which might otherwise be taken to recover rent in arrearB, or
for any other breach or detault by the Lessee, and upon such
entry as atoresaid, this lease shall terminate without
prejudice to the riqhtll of tho Lessor hereunder which may be
.x.rcis.d aft.r the end of the term of this lease. No
release from any expulsion or eviction as above provided, nor
the receipt ot any rant atter d.tault as above provided,
shall b. deemed a waiv.r ot Lessor's rights hereunder.
Further, in the event of any default AS above provided, or in
the event of the continuance of any bankruptcy, execution,
insolvency, assignment, or rec.ivership proceeding as above
set forth, for the .tated periode of time, or the issuance of
any execution process, (which event shall constitute a
derault hereunder) then the rent for the balanc. of the term
hereot, tog.ther with any rent in arrears, IIhall, at the
option of Lessor, at once b.come due and payable and shall be
coll.ctibl. by Lessor'lI di.traint and shall be first paid out
of the proceeds of the said execution, assignment or
bankruptcy, Any law, usage or custom to the contrary
notwithstanding, without waiving any other right to coll.ct
damage. tor such default by Lessee.
16. EJECTMENT AND CONFESSION OF JUDGMENT. At the end
of the t.rm her.ot, or in the ev.nt of default as d.scribed
in paragraph 16 abov., which default shall not b. cured by
Lessee within the period6 st.ated, Lesseo agrees that
following a written notice by the Lessor to the Lessee ot
intention to do so not l..s than ten (10) days prior to such
entry (which t.n (10) day p.riod may run concurrently with
the noticee provided for in Paragraph 16 above) an amicable
action of ejectment may be entered in tho Court of Common
Pleas of cumber.land county, p.nnsylvania, in which Lessor,
itll Buccessor. and aSlligns, shall b. the plaintirf and Lessee
and/or any other party in possession shall b. the detendant,
-8-
0:0:;.2097 14132 FRO~118Etl'lrE( I'lssn':[>1TES 717-763-7397
rOI?17 ;'64 4191
PAGE'15
and that. judgment may be entered in favor of the plaintift
for the posse.sion ot the leased premi..., and that a writ of
possession may be i.sued thereon, with coats, waiving errors
and defects, right of appeal or stay. Lessee hereby empowers
any attorney to appear tor it in said amicable action in
ejectment in said Court, and confess judgment therein, with
costs, in favor of Lesbor, ita successor. or assigns. ^ny
judgment entered hereunder shall provide only tor ejectment
and possession of the leased premises, and costs, and shall
not include any other damages. Such authority shall not be
exhausted by one exercise thereot but judgment may be
contessed as aforesaid trom time to time.
17. CONfESSION Of MONEY JUDGMENT. In the event ot any
default in the payment ot rent by tessee or any breach ot any
covenant to pay any amount due or to become due Lessor under
the terms of this Lease, Lessee does hereby empower any
attorney ot any court of record to appear tor Lessee, and,
with or without declaration, to confess judgment against
Lessee, and in favor ot Lessor for the Bum of the rent then
due and/or tor the sum due by reason of any breach of any
covenant by Lesse., with costs ot suit and an attorney's
commission ot fifteen per cent (15'> for collection, and to
issue writs of execution thereon with release of all errors
and without stay of execution. Lessee hereby waives the
right of inquisition, and extension upon any levy on any real
estate and hereby voluntarily condemns the ssme, and the
exemption of any and all property from levy on any real
estate, and hereby voluntarily condemns the same, and the
exemption of any and all property trom levy and sale by
virtue of any exemption laws now in force or which may be
hereatter passed is also expre.sly waived by lessee. Such
authority shall not be exhausted by one exercise thereot but
judgment may be contes.ed aB aforesaid from time to time.
18. NOTICES. ^ny notioe, demand or requ$st required or
provided ror by this instrument shall be deemed to have been
duly given or made, if in writing and sent by registered or
certified mail, postage prepaid, addressed to the party to be
bound thereby at such addre.s Bet out below, or such other
place as the parties may from time to time designate in
writing:
It to Lessor:
!RFORO O~VELOPMENT COMPANY
C/O LouiB Berger Trust 18^pri184
100 Halsted Street
East Orange, NJ 07019
Attention: fredric S. Berger, Trustee
I f to Lessee:
BENATEC ^SSOCIATES, INC.
101 Erford Road
camp Hill, Pennsylvania 17011
-9-
AlJG-20 97 14133 F"R01t8E~u.+TE( ~ls';r...'-t~HP; n?7~15.lY.li"
IIJ' 71 7 764 4191
PAGE'16
19. QUIET ENJOYH~NT. LeHHor covenants thnt the Lessee
on paying the rent heroin reserved und perfOrming the
covenants above .st forth shall and may pH4co4bly and quietly
have, hold and enjoy the .Bid demised premlBes for the term
aforesaid.
20. GOOD TITLE. LeSBor covenants to and with Lessee
that Le.sor has good title to the land Bubjoct t~ this Lease
and to the building erected thereon and that it is duly
authorized by law and by appropriate action ot its membership
to enter lnto this Loaee.
21. CONSENT BY LESSOR.
the consent or the Lessor is
be unreasonably withheld.
22. CONSTRUCTION. Whenever required by the context
herein, references to parties shall inclUde their respective
successors and assiqne (subject to the limitation of
Paragraph 11) to one gender shall include all genders, and to
the singular the plural.
Wherever in the foregoing lea.e
required, such consent shall not
23. ENTIRE AGREEMENT. This lease constitutes the
entire agreement between Lessor and Lessee and may not be
modified or amended except in writing signed by the parties
hereto.
24. RECORDABLE MEMORANDUM. The parties hereto agree
that they will execute a memorandum of thie lease duly
acknowledged and that the same shall be recorded in the
Offic. of the Recorder of Deeds ot Cumberland county,
Pennsylvania.
IN WITNESS WHEREOF, Bach of the parties hereto has
caused this instrument to be executed in its name and behalr
by its duly authorized representative as of the day and year
above written.
1 \_~.
I,ESSOR
ERFORO DEVELOPMENT COMPANY
L~r~
Fredric Berger, Trust.e,
Partner ~
~ A r~~
An~D. sln eusanio
Part I if!e. t?ft
. / /.
. ~ ~
Partner
WITNESS:
~
ATTESt' i) /
, I
V~dAJ~ J .
"
,/
(
Alo:r~~
J mes Scheiner, President
u ly author! zed
(SEAL)
-10-
14,27 FROM'SEtlMEC ASSO<:IATES 717-763-7397
rOl7l7 764 4191
PAGE '03
./
ESTOPPEL CERTIfICATE
ReI
Lease dated Occober 25,
company (che "Lalldlord" I
"Tenant"), as amended and
1991. bo!cwe~n Erford Development
arod Bllnl1tec Ai6ociaces, lnc. (the
l!Supplemer.ceo (the "Lease").
Dear PA 240 Associacesl
This Estoppel CertifLcste is furnishe1 Co you in connection
wlth the proposed assignment of the t..e~se and attendant .ale of
improved real estate The Landlord and Tenant hereby conflrm to
you. your successorS and assign.. that,
l. The Tenant is in possession under the t..e~se;
2 The Tenant has paid the basic monthly rent due under the
t..ease, in the amount of $9,000.00, for the pe!:'icd ending July 31.,
1997 ;
J. The Tenant hae paid all
obligations due under the Lease for
1997;
4. The Lease has not been modified, amended or otherwise
changed in writlng (if untrue, set forth the dates of all
inst ruments cont~.l.n.l.ng such modif ieat l.:>nll, amendments and other
changes at the end of tlus elaueel i
S. The Lease has not been modified, amended 0.1.' otherwise cv.
changed in any other manner '6=~~"''T T'>1'l."" ;.~,c;:.u1YV-G.NH O\- A\.~'~\ I t'l'l ~Vh
, A-..'t> ~""..:u o'l'o''r 'l.", l<iq'l- I i<1"
~. To the best of its knowledge, Landlord is not in defaule ~
in the performance of any of its obligations under the Lease as If~
LAndlord. 'T--'-
L
7, To the best of Landlord' 5 kncwledge, there is no ~.A
condieion or se: of facts which ....~!!'l tn;;. C'as~r~. r'" ~ ime ~~# ~
g.i";"'g I'll !lQ~;r:...., would constitute a default by tne :'ar.dlord In the .....~f'
performance of ar.y of its obligaeions under the Lease; ;~
a. Ne L ther Landlord nor Tenant has any knowledge that
Tenant is in default In the perfcrmance oE any of its obl.l.gations
e:cpensu and oeher Tenant
tne ~eriod end.l.ng July a,
unde r ehe Lease;
9. Landlord has no knowledge of any condit LOn
!acr:s Which w.l...l~ I..l,oc; ~Q~.;;:la':l~ ef t':''fl~ :aRi.'Q~ .,~ gi'/~ "'''J
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BINATIC ASSOCIATIS, INC., I IN THI COURT OP COMMON PLEAS OP
petitioner I
I CUMBERLAND COUNTY, PENNSYLVANIA
V I
I CIVIL ACTION - BQUITY
I
I NO. 97-4700 EQUITY TERM
PA :240 ASSOCIATIS, I
Re.pondent I
QBt1ER OP COUR:r
AND NOW, this 3rd day of September, 1997, hearing
on tbe within preli~inary injunotion is oontinued generally.
By the Court,
---/f9. /),~
Kevin/ . He.s, J.
/
,
Thoma. L. Wenger, Esquire
POl' the petitioner
./
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'!',f.
Miohael A. Pinio, Esquire
POl' the Respondent
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