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IN THE COURT OF COMMON PI,EAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO, q~'/~^L'r.. C!.1998
Civil Action - Law
DAVID AIELLO
1104 Fernwood Avenue
Camp HUl, PA 17011
DIAL COMPANIES, DIAL PROPER'fIES
CO., and DIAI, MGT. CO., Each
individually and trading as
I,AKE MANAWA-CARI,ISLE, l,P,
LAKE MANAWA-CARLISLE, INC.,
and DIAL DEVELOPMENT PARTNERS
LLC;
LAKE MANAWkCARLISLE, LP;
LAKE MANAWA-CARLISLE, INC"
Individually and trading as
LAKE MANAWA-CARLISLE, LP;
uLAL DEVELOPMENT PARTNERS, I,T"C;
RICHARD N. COOPER, DONALD F.
DAY, T. L. CI,AUFF, and ROBERT
SELCHA, Each individually and
trading as DIAL COMPANIES, DIAL
PROPERTIES CO., DIAL MGT. CO"
LAKE MANAWA-CARLISLE, LP,
LAKE MANAWA-CARLISLE, INC" and
DIAL DEVELOPMENT PARTNERS LLC
JURY TRIAL DEMANDED
Plaintiff(s) and
Address (es)
Defendant(s) and
Address (es)
PRAECIPE FOR WRIT OF SUMMO~
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please issue a Writ of Summons in the above-captioned action,
Return Writs of Summons to the undersi.gned for service Upon the
defendants located outside the Commonweal th of Pennsylvania
First Class, United States Certified M il, Ut' Rec
Requested.
Stephen M. Greecher, Jr" Esquire
HEPFORD, SWARTZ & MORGAN
111 North Front Street
P.O, Box 889
HarriSburg, PA 17108-0889
(717) 234-4121
Supreme Court I,D. #36803
Date: '!./~tJ/~,t____
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WQIIQIA
Le han demandado a usted en la corte, 81 usted qUlere defenderse de estas demandas
expuestas en las paqulnas slgulentes, usted tlene vlente (20) dias de plazo al partir de la fecha de la
demanda y la notlficaclon, Uated debe presenlar una apariencla escrlta 0 en persona 0 por abogado
y archlvar en la corte enfonna escrlta sus defensas 0 sus obJeclones alas demandas en contra de au
persona. 8ea avlaado que sl usted no se defiende, la corte tomara medldas y puede antrar una orden
contra usted sin prevlo av/so 0 notlficaclon y por cualquler queJa 0 allvlo que es pedido en la petlcion
de demanda, Usted puede perder dlnero 0 sus propledades 0 otros derechos importantes para
usted,
LLEVE E8TA DEMANDA A UN ABODAGO INMEDIATAMENTE. 81 NO TIENE ABOGADO 0 81 NO
TIENE EL DINERO SUFICIENTE DE f'AGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR .
TELEFONO A LA OFICINA CUYA D/RECCION SE ENCUENTRA E8CRITA ABAJO PARA
AVERIGUAR DONDE 8E PUEDe CONSEGU/R ASISTENCIA lEGAL
CUMBERLAND COUNTY BAR ASSOCIATION
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
(800) 990-9108
Respectfully submitted,
DATE: ;I?rJ~o
25422,1 r;'t((,
By:
tepne M, Gree , Jr.
Attorney's 1.0, No, 36803
111 North Front Street
p, O. 80x 889
Harrisburg, PA 17108-0889
(717) 234-4121
A TTORNEY8 FOR PLAINTIFF
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Manawa-Carllsle, LP and/or Lake Manawa-Carlisle, Inc, and/or Dial Development
Partners, LLC, is a Nebraska corporation with a principal place of business at 11506
Nicholas Street, Omaha, Nebraska.
3, Defendant Dial Properties, Co, (hereinafter Defendant Dial Properties),
individually and trading as Lake Manawa-Carlisle, LP and/or Lake Manawa-Carlisle, Inc.
and/or Dial Development Partners, LLC, Is a Nebraska corporation with a principal place
of :>usiness at 11506 Nicholas Street, Omaha, Nebraska.
4, Defendant Dial Mgt. Company (hereinafter Defendant Dial Management),
individually and trading as Lake Manawa-Carlisle, LP and/or Lake Manawa-Carlisle, Inc,
and/or Dial Development Partners, LLC, purports to be a business entity iocated at 11506
Nicholas Street, Omaha, Nebraska.
5, It is believed that Dial Companies, Dial Properties and Dial Management
may be the same entity and responsible for the obligations and damages set forth herein.
6, Defendant Dial Development Partners, LLC (hereinafter Defendant Dial
Development) purports to be a Nebraska limited liability company located at 11506
Nicholas Street, Omaha, Nebraska.
'7, Defendant Lake Manawa-Carllsle, Inc. individually and trading as Lake
Manawa-Carlisle, LP, purports to be a Nebraska Corporation located at 11506 Nicholas
Street, Omaha, Nebraska, and is represented to be the general partner of Lake Manawa-
Carlisle, LP
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8, Defendant Lake Manawa-Carlisle, LP, purports to be a limited partnership
or other business entity located at 11506 Nicholas Street, Omaha, Nebraska,
9, Defendant Richard N. Cooper (hereinafter Defendant Cooper), individually
and trading as Defendant Dial Companies and/or Defendant Dial Properties Co. and/or
Defendant Dial Management Company and/or Defendant Lake Manawa-Carllsle, LP
and/or Defendant Lake ManawB,Carlisle, Inc. and/or Defendant Dial Development
Partners, LLC, is an adult individual and an officer, employee, member, owner or partner
of the above named business entities located at 11506 Nicholas Street, Omaha,
Nebraska,
10. Defendant Donald F. Day (hereinafter Defendant Day), individually and
trading as Defendant Dial Companies and/or Defendant Dial Properties Co, and/or
Defendant Dial Management Company and/or Defendant Lake Manawa-Carlisle, LP
and/or Defendant Lake Manawa-Carlisle, Inc. and/or Defendant Dial Development
Partners, LLC, is an adult individual and an officer, employee, member, owner or partner
of the above named business entities purportedly located at 11506 Nicholas Street,
Omaha, Nebraska,
11, Defendant T.L Clauff (hereinafter Defendant Clauff), individually and
trading as Defendant Dial Companies and/or Defendant Dial Properties Co, and/or
Defendant Dial Management Company and/or Defendant Lake Manawa-Carlisle, LP
and/or Defendant Lake Manawa,Carlisle, Inc. and/or Defendant Dial Development
Partners, LLC, is an adult individual and an officer, employee, member, owner or partner
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of the above named business entities purportedly located at 11506 Nicholas Street,
Omaha, Nebraska.
12, Additionally and alternatively, Defendant Dial Companies is an
unincorporated association engaged in the business of land acquisition and development
with its principal place of business at 11506 Nicholas Street, Omaha, Nebraska.
13, Additionally and alternatively, Defendant Dial Properties is an
unincorporated association engaged in the business of land acquisition and development
with its principal place of business at 11506 Nicholas Street, Omaha, Nebraska.
14. Additionally and alternatively, Defendant Dial Management is an
unincorporated association engaged in the business of land acquisition and development
with its principal place of business at 11506 Nicholas Street. Omaha, Nebraska.
15. Additionally and alternatively, Defendant Dial Development is an
unincorporated association engaged in the business of land acquisition and development
with its principal place of business at 11506 Nicholas Street, Omaha, Nebraska,
16. Additionally and alternatively, Defendant Lake Manawa-Carlisle, LP Is an
unincorporated association engaged in the business of land acquisition and development
with its principal place of business at 11506 Nicholas Street, Omaha, Nebraska,
17. Additionally and alternatively, Defendant Lake Manawa-Carlisle, Inc, is an
unincorporated association engaged in the business of land acquisition and development
with its principal place of business at 11506 Nicholas Slreet. Omaha, Nebraska.
18, Dial Companies, Dial Properties, Dial Management, Lake Manawa-
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Carlisle, LP, Lake Manawa-Carllsle, Inc., and Dial Development are referred to
collectively herein as the "Entity Defendants". Each allegation made with respect to the
Entity Defendants refers to the Entity Defendants collectively and to each Entity
Defendant Individually. Entity Defendants are jointly and severally liable for the
obligations that are at Issue in this case, The Entity Defendants are agents for one
another and responsible therefor for the acts, omissions and obligations of one another
as set forth herein, Allegations made with respect to the Entity Defendants refer to the
entities Individually and collectively. As set forth herein the Entity Defendants are jointly
and severally liable for the obligations of each other.
19, The Entity Defendants are part of a common scheme through their
relationships, and are part of an overall organization organized for the transaction and
matters at issue In this case. Thereby each Entity Defendant is liable for the acts and
omissions of each and every other Entity Defendant
20, At all times relevant hereto, the Defendants conducted business In
Pennsylvania, particularly with respect to all matters at issue herein, and Defendants'
conduct has resulted In harm to Plaintiff, David Aiello.
COUNT I
21. On January 17, 1996, Defendant Dial Companies and/or Defendant Dial
Properties, and/or Dial Management, executed a Purchase Agreement with Plaintiff David
Aiello for certain real estate In Carlisle and South Middleton Township, Cumberland
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County, Pennsylvania, a true and correct copy of which is attached hereto and
incorporated herein as Exhibit "A", An acceptance was delivered to Plaintiff at that time, a
true and correct copy of which is attached hereto and incorporated herein as Exhibit "8",
22, Shortly thereafter on that same day, Defendant Dial Companies and/or
Defendant Dial Properties, and/or Dial Management, again delivered said acceptance,
but Included an "attest" signature thereon, a true and correct copy of which is attached
hereto and Incorporated herein as Exhibit "C".
23, Sometime thereafter, said Defendants then provided Plaintiff with a copy of
the Purchase Agreement now signed by Defendant Lake Manawa-Carllsle, LP by Lake
Mana":a-Carlisle, Inc., its general partner, a true and correct copy of which is attached
hereto and incorporated herein as Exhibit "D".
24, On January '19, 1996, Defendant Lake Manawa-Carlisle, l.P also issued a
Promissory Note in the amount of $100,000.00 payable to Plaintiff by February 17, 1996,
a true and correct copy of which is attached hereto and incorporated herein as Exhibit
liEU,
25, On or about February 16, 1996, Defendant ....ial Companies and/or
Defendant Dial Properties, and/or Dial Management, executed an "Assignment and
Assumption of Purchase Contract" with Defendant Dial Development, a copy of which Is
attached hereto as Exhibit "F".
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26, On or after March 20, 1996, Entity Defendants stopped performance of their
obligations under the Agreement, and refused to further perform their obligations under
the Agreement and refused to move forward with the purchase of the property,
27, The Entity Defendants refused to remit any payment to Plaintiff pursuant to
the aforesaid Purchase Agreement or the Promissory Note, notwithstanding Plaintiffs
demands therefor,
28, The Entity Defendants refused to and failed to perform their obligations
under the Purchase Agreement and refused to purchase and pay for the property as
agreed to under the Purchase Agreement, breaching their obligations under the Purchase
Agreement.
29, The Entity Defendants failed to perform their obligations under the
Agreement with respect to obtaining municipal land development plan approval and
paying the costs related thereto,
30, At all times material hereto, Plaintiff stood ready and willing to perform
under the Purchase Agreement.
31, Accordingly, the Entity Defendants refusal and failure to remit payment to
Plaintiff under the Purchase Agreement and the Promissory Note is unjustified and
contrary to the terms thereof,
32, The Entity Defendants did fail to perform their obligations pursuant to the
terms and conditions of the Purchase Agreement.
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33, As a result of the fault of the Entity Defendants, the closing on the
transaction at Issue In this case did not occur,
34, Pursuant to the Purchase Agreement, paragraph 9, various remedies are
available to Plaintiff as set forth therein including liquidated damages which pursuant to
the agreement would be $100,000,
35, Pursuant to paragraph 9 of the Purchase Agreement, Plaintiff is also
entitled to all other remedies available at law or in equity,
36, The aforesaid Purchase Agreement also permits Plaintiff to be awarded
attorney fees under the circumstances applicable to this case,
37, The Entity Defendants' aforesaid conduct has directly and proximately
caused Plaintiff to suffer damages that included substantial lost profits, lost earnings,
expenses, out-of-pocket expenses, property acquisition expenses, costs, benefit of the
bargain damages, consequential damages, incidental damages and attorney's fees, for
which Plaintiff claims herein,
38, In the alternative, PI?intiff requests an award of liquidated damages which
would be $100,000, in accord::.nce with paragraph 9(c) of the Purchase Agreement. Said
$100,000 is the amount that the entity defendants were required to have on deposit with
the escrow agent pursuant to paragraph 2(b) of the Purchase Agreement.
39, In the further alternative, Plaintiff demands such other damages and relief to
which he Is entitled pursuant to paragraph 9 of the Purchase Agreement.
40, The Entity Defendants are also liable on the Promissory Note with Interest.
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. WHEREFORE, Plaintiff demands judgment against the Entity Defendants In an
amount in excess of the limits for mandatory arbitration, plus attorney's fees, Interest and
cost of suit.
COUNTl!
41, The allegations contained In Paragraphs 1 through 40 are incorporated
herein as if fully set forth,
42, On or about January 18, 1996, Richard N, Cooper, representing himself to
be President of Lake Manawa-Carlisle, Inc., general partner of Lake Manawa-Carlisle, LP,
executed a promissory note in the amount of $100,000 payable to David Aiello due
February 17, 1996; a true and correct copy of the note is attached hereto as Exhibit OlE",
43, Payment has never been made to David Aiello pursuant to the terms of the
note,
44, Said note is due and payable in full to David Aiello,
45. Defendants Dial Companies and/or Dial Properties and/or Dial
Management are liable to David Aiello on the note In that pursuant to the purchase
agreement Dial Companies and/or Dial Properties and/or Dial Management were
obligated to execute a note in fovor of David Aiello In the amount of $1 00,000,
46, The obligations under the purchase agreement were purportedly assigned
to L.ake Manawa-Carlisle, LP, with Lake Manawa-Carlisle, Inc, the general partner, which
may be nonexistent entitles and said assignment would therefore be ineffective and the
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promissory note executed on behalf of Lake Manawa-Carlisle, LP would therefore be an
obligation of Dial Companies and/or Dial Properties and/or Dial Management.
47, The Dial Companies and/or Dial Properties and/or Dial Management are
liable on the Promissory Note in that Richard Cooper who had signed the purchase
agreement on behalf of the Dial Companies and/or Dial Properties and/or Dial
Management had signed the Promissory Note on behalf of the Dial Companies and/or
Dial Properties and/or Dial Management, acting as and within the scope of his authority
as an actual or apparent agent, servant, or employee of Dial Companies and/or Dial
Properties and/or Dial Management.
48, Further, on or about February 16, 1996, Defendant Dial Properties, and
Defendant Dial Management executed an "Assignment and Assumption of Purchase
Contract" with Defendant Dial Development, whereby, alternatively, Dial Development
became obligated for the promissory note, Dial Development, however, may be a non-
existent entity or an entity that was never formed, In that event, Dial Companies and/or
Dial Properties and/or Dial Management are liable on the promissory note,
49, As set forth herein, the Entity Defendants are jointly and severally liable for
the obligations of each other.
50, Defendant Cooper is Individually liable on the note In that he executed the
note for non-existent entities,
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WHEREFORE, Plaintiff reque!>ts Judgment In his favor against the Entity
Defendants and Defendant Cooper in an amount in excess of the limits for mandatory
arbitration, plus attorney's fees, pre-judgment and post-judgment interest and cost of suit.
COUNTJI!
51, The allegations contained in Paragraphs 1 through 50 are incorporated
herein as If fully set forth,
52, The Individual Defendants were acting in concert and as part of a common
scheme and on behalf of Dial Companies, Dial Propelties Co, and/or Dial Management
Company, with respect to the matters at issue herein,
53, Dial Companies, Dial Properties Co, and/or Dial Management Company
entered into the Purchase Agreement attached hereto as Exhibit "A" with David Aiello for
the purpose of tying up the property and taking David Aiello out of the market with regard
to selling the property to any other parties,
54, Dial Companies, Dial Properties Co, and/or Dial Management Company
knew at the time that they entered into the Purchase Agreement that the purchase of the
property was not contingent on Lowe's and Wal-Mart or other tenants irrevocably
committing to leasing stores or other facilities on the property, or fully executing leases,
55, At the time that Dial Companies, Dial Properties Co, and/or Dial
Management Company entered into the contract, Dial Companies, Dial Properties Co,
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and/or ~ial Management Company never intended to perform under the contract as
written.
56, As evidence of and part of the scheme, the note that was required to be
provided and made payable to David Aiello was made an obligation of Lake Manawa-
Carlisle, LP, the purported General Partner of which was Lake Manawa-Carlisle, inc"
both of which were not existent entities, Therefore, the note as prepared and executed
could not be collected from Lake Manawa-Carlisle, LP, nor could it be collected against
the General Partner of Lake Manawa-Carlisle, LP, Lake Manawa-Carlisle, Inc" since
neither entity existed, Further, the note as prepared and executed was an attempt to
shield Dial Companies, Dial Properties, and/or Dial Management from any obligations
thereunder,
57, As evidence of and part of the aforesaid scheme, the Purchase Agreement
was assigned to Lake Manawa-Carlisle, LP, and then to Dial Development, which are
believed to be non-existent entities, in an attempt to shield and Insulate Dial Companies,
Dial Properties, and/or Dial Management from liability and obligations pursuant to the
Purchase Agreement.
58. At all times, Dial Properties, Dial Companies, and/or Dial Management,
after tying up the property and having David Aiello take it off the market, intended to
renegotiate the contract so that the purchase of the property and performance under the
Purchase Agreement by Dial Companies, Dial Properties Co, and/or Dial Management
Company would be conditional and contingent upon getting fully executed,
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noncancellable leases or other Irrevocable commitments from Lowe's or Wal-Mart or
other entities with respect to leasing stores or facilities on the property and obtaining
further contingencies on performance under the Purchase AgrfJement that were not part
of the Purchase Agreement attached hereto as EXhibit "A", making final payment for the
purchase conditional on occupancy of stores or facilities on the property by Wal-Mart,
Lowe's, or other entities,
59, Plaintiff, David Aiello, refused to renegotiate the Purchase Agreement as
had been requested by Dial Companies, Dial Properties Co, and/or Dial Management
Company,
60, On or after March 20, 1996, prior to the cloSing set forth in the Agreement,
and after Plaintiff, David Aiello, had incurred damages in reliance on the
misrepresentations, Dial Companies, Dial Properties Co, and/or Dial Management
Company refused to further perform and refused to purchase the property,
61, Plaintiff, David Aiello, relied on the misrepresentations of Dial Companies,
Dial Properties Co, and/or Dial Management Company made by and through Defendant
Cooper acting on behalf of Dial Companies, Dial Properties Co, and/or Dial Management
Company and the other Individual Defendants,
62, In reliance on the misrepresentations as set forth herein by Dial Companies,
Dial Properties Co, and/or Dial Management Company through Richard Cooper, David
Aiello entered into the Purchaoe Agreement and took the property off the market and
began to perform thereunder, entering into commitments with respect to the property,
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expending money and sustaining damages as a result thereof, As a result of the
misrepresentations of the Dial Defendants through Defendant Cooper acting on behalf of
the Dial Defendants and the other Individual Defendants, Plaintiff, David Aiello, has
Incurred damages for which he is entitled to be compensated herein for loss of the benefit
of the bargaining, payment of the obligation unner the Promissory Note, consequential
damages, loss of profits, incidental damages, expenses, out-of-pocket expenses incurred,
expenses for property acquisition, and loss of goodwill,
63, David Aiello did not discover and, through the exercise of ordinary care,
could not have discovered the misrepresentations set forth hArein until well after
Defendants ceased performance on the Agreement and failed to proceed with closing,
64, The conduct of Defendants as set forth herein constitute outrageous
conduct.
WHEREFORE, Plaintiff, David Aiello, demands jUdgment In his favor and against
the Defendants, Dial Companies, Dial Properties and/or Dial Management and the
Individual Defendants, In an amount In excess of the limits for mandatory arbitration, plus
attorney's fees, punitive damages, interest and cost of suit.
COUNT IV
65, The allegations contained In Paragraphs 1 through 64 of the within
Complaint are Incorporated herein as if fUlly set forth,
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66, Pursuant to the Agreement attached hereto as Exhibit "A", the Entity
Defendants were required to deposit a $100,000 note upon execution of the Agreement
and thereafter replace the note with $100,000 in cash on or before February 17, 1996,
67, In the event that the Entity Defendants did not purchase the property from
Plaintiff, David Aiello, David Aiello was to retain the $100,000 payment, which $100,000
was to be paid into escrow,
68, Pursuant to Paragraph 9(c) of the Agreement, David Aiello was entitled to
retain the $100,000 in the event that the Entity Defendants defaulted in their
performance under the Agreement, or If the dosing did not occur due to the fault of the
Entity Defendants,
69, As set forth herein, the Entity Defendants defaulted and the closing did
not occur due to the fault of the Entity Defendants,
70, Said $100,000 payment was a payment to be made to David Aiello to
compensate him for taking the property off the market; for providing, in effect, an option
to the Entity Defendants to purchase the property from David Aiello, and precluded
David Aiello, from selling the property to anyone else; and providing to the Entity
Defendants an exclusive right to purchase the property from David Aiello during the
term of the Agreement.
71, It is believed and therefore averred that the Entity Defendants never made
the $'100,000 payment as required in the Agreement attached as Exhibit "A" hereto.
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72, As set forth in Exhibit OlGOl hereto, an Agreement dated February 19, 1996,
the obligation of the Entity Defendants to pay $100,000 to David Aiello for an option on
the property was recognized and evidenced.
73, David Aiello is entitled to be paid $100,000 pursuant to the purchase
agreement and as compensation for David Aiello taking the property off the market,
which payment has not been made to David Aiello,
WHEREFORE, Plaintiff, David Aiello, demands judgment in his favor and against
the Entity Defendants in an amount in excess of the limits for mandatory arbitration,
plus attorneys' fees, interest, and costs of suit.
COUNT V
74, The allegations contained in Paragraphs 1 through 73 of the within
Complaint are incorporated herein as if fully set forth,
75, Upon execution of the Agreement, the Entity Defendants and Individual
Defendants obtained an option on the property for the duration of the Agreement,
thereby preclUding David Aiello from otherwise selling the property and providing the
Entity Defendants and the Individual Defendants with an exclusive right to purchase the
property from David Aiello during the term of the Agreement.
76, As set forth in the Agreement dated February 19, 1996, attached hereto
as Exhibit OlG", such an option had been obtained on the property and a $100,000
payment to David Aiello was recognized and understood to be due for said option.
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7'1, Said option was obtained through the misrepresentations and misconduct
of the Entity Defendants and Individual Defendants as set forth herein,
78, David Aiello relied, to his df1triment, upon Defendants' misrepresentations,
taking the property off the market, and suffered damages as a result thereof,
79, Said option was valuable and said Individual Defendants and Entity
Defendants unjustly received the value of that option and were unjustly enriched by
receiving said option without compensating David Aiello for the reasonable value of
said option,
80, The Entity Defendants and Individual Defendants knew that in the event
the purchase of the property was not completed, that David Aiello expected to be
compensated for taking the property off the market.
81, The Individual Defendants and Entity Defendants have failed to
compensate David Aiello for the option they received from David Aiello with respect to
David Aiello selling the property to thern, with respect to precluding David Aiello from
selling the property to anyone else and with respect to Obtaining the exclusive right to
purchase the property from David Aiello during the term of the Agreement.
WHEREFORE, Plaintiff, David Aiello, demands judgment in his favor and against
the Entity Defendants and the Individual Defendants In an amount in excess of the
limits for mandatory arbitration, plus attorneys' fees, Interest, and costs of suit.6
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COUNT V!
82, The allegations contained In Paragraphs 1 through 81 are incorporated
herein as if fully set forth,
83, Lake Manawa-Carlisle, LP, Lake Manawa-Carllsle, Inc" and Dial
Development Partners are unincorporated associations,
84, Dial Companies, Dial Properties Company, and/or Dial Management
Company and/or the Individual Defendants are the members of the aforesaid
unincorporated associations,
85, As members of the unincorporated associations, Dial Companies, Dial
Properties and/or Dial Management and/or the Individual Defendants are liable for the
obligations of Lake Manawa-Carllsle, l.P, Lake Manawa-Carlisle, Inc" and Dial
Development Partners and for the damages caused to David Aiello as set forth herein,
WHEREFORE, Plaintiff, David Aiello, demands judgment in his favor and against
Defendants, Dial Companies, Dial Properties, Dial Management, and the Individual
Defendants in an amount in excess of the limits for mandatory arbitration, plus attorney's
fees, punitive damages, interest and cost of suit.
~_OUNT VU
86, The allegations contained in Paragraphs 1 through 85 are incorporated
herein as If fully set forth,
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87, Dial Companies, Dial Properties, and/or Dial Management and/or the
Individual Defendants own and control Lake Manawa-Carllsle, LP, Lake Manawa-Carlisle,
Inc" and Dial Development Partners,
88, Dial Companies, Dial Properties, and/or Dial ManagAment and/or the
Individual Defendants operated Lake Manawa-Carlisle, LP, Lake Manawa-Carlisle, Inc"
and Dial Development as mere shells with insufficient capitalization, substantial
Intermingling of corporate and personal affairs to avoid payment of the aforesaid
Purchase Agreement and Promissory Note,
89, Dial Com~anies, Dial Properties, and/or Dial Management and/or the
Individual Defendants operated Lake Manawa-Carllsle, LP, Lake Manawa-Carlisle, Inc"
and Dial Development as their alter egos and for their own gain,
90, The veil of limited liability of Defendants, Lake Manawa-Carlisle, LP, Lake
Manawa-Carlisle, Inc, and Dial Development should be pierced, and Dial Companies, Dial
Properties and/or Dial Management and/or the Individual Defendants should be liable for
the actions, inactions and conduct of Defendants, Lake Manawa-Carlisle, LP, Lake
Manawa-Carlisle, Inc, and Dial Development and for the damages caused to Plaintiff,
David Aiello, as set forth herein, and for all damages for which said Defendants are liable
herein,
WHEREFORE, Plaintiff demands judgment against Defendants, Dial Companies,
Dial Properties Co" and Dial Management, and the Individual Defendants in an amollnt In
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excess of the limits for mandatory arbitration, plus attorneys' fees, Interest, and costs of
suit.
~OUttT VIII
91, The allegations contained in Paragraphs 1 through 90 are incorporated
herein as If fully set forth,
92, Defendants, Dial Companies, Dial Properties and/or Dial Management are
unincorporated associations, the members of which are the Individual Defendants,
93, As members of the aforesaid unincorporated associations, the Individual
Defendants are liable for the obligations of Dial Companies, Dial Properties, and/or Dial
Management and for damages caused to Plaintiff, David Aiello, by Defendants, Dial
Companies, Dial Properties, and/or Dial Management.
WHEREFORE, Plaintiff demands judgment against the Individual Defendants In an
amount in excess of the limits for mandatory arbitration, plus attorneys' fees, interest, and
costs of suit.
COUNT IX
94, The allegations containlJd in Paragraphs 1 through 93 are incorporated
herein as if fully set forth,
95, The Individual Defendants owned and operated Defendants, Dial
Companies, Dial Properties, and/or Dial Management as mere shells with insufficient
capitalization and substantial intermingling of corporate and personal affairs to avoid
payment under the aforesaid Purchase Agreement and Promissory Note,
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96, The Individual Defendants operated Defendants, Dial Companies, Dial
Properties, and/or Dial Management as their alter egos and for their own personal gain,
97, The veil of limited liability of Defendants, Dial Companies, Dial Properties,
and/or ~ial Management should be pierced and the Individual Defendants should be held
liable for the actions, inactions and conduct of Defendants, Dial Companies, Dial
Properties and/or Dial Management and for the damages caused to Plaintiff, David Aiello,
by Defendants, Dial Companies, Dial Properties, and/or Dial Management, and for all
damages for which said Defendants are liable herein,
WHEREFORE, Plaintiff demands jUdgment against the Individual Defendants in an
amount in excess of the limits for mandatory arbitration, plus attorneys' fees, interest, and
costs of suit.
COUNT X
98. The allegations contained in Paragraphs 1 through 97 are Incorporated
herein as if fully set forth,
99, Additionally and alternatively, Defendant Dial Companies and/or Defendant
Dial Properties and/or Defendant Dial Management and/or Defendant Dial Development
and/or Defendant Lake Manawa-Carlisle, LP and/or Defendant Lake Manawa.,carlisle,
Inc, held themselves out as corporate, partnership, limited liability or other entities and
therefore are estopped from claiming that no corporate, partnership, limited liability, or
other entity exists,
21
WRCHASE AGREEMENT
This Agreement is dated as of the Jl.th...day .:>f January, 1996, between David Aiello
("Seller"), and Dial Companies, a Nebraska Corporation, or assigns, ("Purchaser");
WITNESSETH:
1. Sale And Purchase. Seller shall sell and Purchaser shall purchase, subject to the
tenns and conditions herein, Lot number 14 and Lot number 15 of the final subdivision plan
known as Eden Business Park as recorded or to be recorded In the Recorder's office of
Cumberland County Pennsylvania, said Eden Business Park is located in the Borough of Carlisle
and Snuth Middleton Township, Cumberland County, Pennsylvania.
2, Purchase Prlc~ The purchase price for the Land shall be Nine Million Four
Hundred Twenty Thousand Dollars (59,420,000.00) (the "Purchase Price") payable as follows:
(a) One Hundred Thousaud Dollars ($100,000,00) paid contemporaneously with the
execution by Purchaser of this Agreement to a mutually acceptable title company
(the "Bscrow") to be held in an interest bearing escrow account, (the "Deposit")
with interest accruing to Purchaser, It being understood that Dial Companiea shall
place a demand note for One Hundred Thousand Dollars ($100,000.00) with
.. Chicago Title Omaha during the 30 day inspection period. On or before February
17. 1996, the note will be replaced with One Hundred Thousand Dollars
($100,000.00) cash; and
(b) At the end of the inspection period, Dial Companies will escrow the One Hundred
Thousand Dollars ($100,000.00) cash and a note in the amount of Four Million
Nine Hundred Thousand Dollars ($4,900,000.00). The note will be subject to the
necessary govemmental approvals being obtained by Purchaser according to
paragraph 23 of this agreement.
(c) The balance of Nine Million Three Hundred Twenty Thousand Dollars
(59,320,000.00) paid on the date of the closing of this sale (the "Closing") by
certified check or Federal wire transfer; provided, however, that if the sUlVey to be
prepared pursuant to Section 4 herein reveals that the Land contains t.lore or less
than Forty-Seven and eight om~-hundredths (47.08) acres, then the Purchase
Price shown above shall be increased or decreased as applicable so that it shall be
an amount equal to the product obtained by multiplying Two Hundred Thousand
Dollars ($200,000.00) by the actual number of Acres, as defined in Section 4
herein, shown by the sUlVeyor's certification,
3. Escrow. Purchaser and Seller shall deliver signed instructions to Chicago Title
Insurance Company, (the "Escrow") as escrow holder, within thirty (30) calendar days of both
parties execution of this Agreement which shall provide for closing as provided herein. Escrow
fees shall be the sole responsibility of Purchaser, The "Close of Escrow" or the "Closing" shall be
Purchase .o\grccment . Carlisle, P A
the date Seller's special warranty deed Is recorded. Concurrently with Seller's execution of the
escrow Instructions, Seller shall execute a special warranty deed to convey title of the Property to
Purohaser, and Esorow Agent shall hold said deed until the Close of Escrow, For all purposes, the
date of the "opening of escrow" shall be the date of this Agreement, In the event of ailY
Inconsistenoy betwcen the esorow instruotlons and this Agreement, this Agreement shall control,
notwithstanding the fact that either party may have intentionally or inadvertently executlld such
inconsistent instructions.
4. Survey, Seller, at its expense, shall deliver to Purohaser a current survey of the
Land prepared by 'a Registered SUlveyor (the "Survey"), The Survey, in form suitable to
Purchaser and "Title Company", as defined in Section 4 herein, shall (a) locate all present and
future easements. rights-of-way, 100-year flood plain, building lines, utility lines, roadways and
encroaohments on or abutting the Land, (b) contain an accurate metes and bounds description of
the Land and (c) contain the certification of the surveyor /l8 to the number of Acres (accurate to
two (2) decimal places) contained in the Land, Purchaser shall have seven (7) days from the date
of receipt of the Survey to approve same or to notify Seller of its objections thereto, If Purchaser
notifies Seller of objections to the Survey. Seller shall have the Survey corrccted as expeditiously
as reaaonably possible, This shall be an ALTA Survey.
I
5, Title Insuran~ Purchaser, at Purchaser's expense and within seven (7) days of
the date on which is receives a satisfactory Survey as provided In Section 4 hereof, shall order a
standard form ALTA Owner's Title Commitment Policy (the "Commitment") covering the Land
and issued by a title insurance company of Purchaser's choice ("Title Company"), together with
copies of all instruments, if any. referred to in the Commitment as exceptions to title. Purchaser
shall have twenty (20) days after receipt of the Commitment. together with copies of all<
documents constituting exceptions to title and survey, to review and approve the Commitment. If
any exceptions appear in the Commitment, other than the standard pre-printed exceptions (which
shall be totally deleted in the Policy except that the survey exception may eKcept shortages in
area), which are objectionable to Purchaser. Purchaser shall, within ouch twenty (20) day period.
notify Seller in writing of such fact. Upon the expiration of said twenty (20) day petiod, Purchaser
shall be deemed to have accepted all eKceptions of title as shown on the Commitment, eKoopt for
matters to which notice under the preceding sentence has been given by Purchaser. and such
exceptions shall be included in the term "Permitted EKceplions. as used herein. Seller shall. within
ten (10) days of receipt of said notice, clear the title of the defects and objections so specified.
The pftltles agree to close within seven (7) days following the date upon which all conditions and
contingencies. including without limitation defects in and objections to title, are satisfied,
6. Title and Deed. At the Closing, Seller shall convey to Purchaser, by Special
Warranty Deed in a foml acceptable to Purchaser. marketable fee simple title to the Land, free
and clear of any and all encumbrances, subject only to the Pelmiued Exceptions as provided In
Section 5 herein. At the Closing, Purchaser shall also be able to obtain, at Purchaser's expense, a
standard form ALTA Owner's Title Insurance Policy (the "Policy") issued by the Title Company.
insuring marketable fee simple title to Purchl\ser in the full amount of the Purchase Prioo and
containing no eKceptions or conditions other than the Permilled Exceptions as provided in Section
5 hereof.
Page 2
Punihase Agreement. Carlisle, P A
7. blel and AlSellmcnu.. Real property taKes, water rates and sewer oharges and
rents, if any, shall be prorated and adjusted as of the dale of seltlement on either a fiscal or a
oalendar year basis as may be applicabllJ to tho particular tux or charge involved.
8. Transfer and ~Rles Taxcs. The expense and cost ot' all Federal, state and looal
documentary 01' revenue stamps, transfer, sales and other taxlls, if any, relating to the sale of the
Land shall be split equally between the Purohaser and Seller on the date of Closing. Both parties
agree to eKecute any taK returns required to be filed in connection with any such taxes,
9. Default bv Purc~aser. If Purchaser shall default in the perfonnance of any of the
tenns and conditions of this Agreement, or if the Closing shall not occur through the fault of
Purchaser., Seller shall, at its sole discretion elect to,
(a) receive from the escrow agent the full purchase price and retain all deposit
monies held by the escrow agenl and 01 her sums paid by the Purchaser on account
I of the purchase price, whether required by this agreement or not, or
(b) apply all deposit monies held by the escrow agent and other sums paid by the
Purchaser on account of the purchase price to the Seller's damages, or
(c) apply all deposit monies held by the escrow agent and other sums paid by the
Purchaser on account of tile purchase price as liquidated damages for such defllult,
In the event that the Seller elects to retain the monies as liquidated damages in accordance with
this paragraph, the Seller shall be released from all liability or obligation as this agreement shall be
NULL AND VOID. In any event the Seller and Purohaser shall also be entitled to specific
perfonnanoe and all other remedies available at law or in equity.
In the event either party brings an IIction to enforce its rights hereunder, the costs of such
aotion, including reasonable attorney's fees of the prevailing party. shall be borne by the
non-prevailing party.
10. Default bv Seller. Except for a willful default hereunder on the part of the Seller,
in which case Purchaser shall have all remedies availahle to them at law. if Seller fails or refuses to
comply fully with the tenns of this Agreement through no fault of the Purchaser, then the escrow
amount shall be delivered by the escrow agent to Purchaser and such amount shall constitute
liquidated damages. and no other rights or remedies shall be enforceable or available to Purchaser
against Seller. Purchaser shall also be entitled to specific performance against Seller.
II. Rieht of Entrv. At any time prior to the Closing, and at Purchaser's sole eKpense,
Purchaser or its authorized agents shall have the right to enter upon the Land, at reasonable times
and upon at 1000st seven (1) days prior notice, to inspect the same and make such surveys and site
analyses, test borings and engineering studies as Purchaser may deem necessary. Purchaser hereby
agrees to indemnifY and hold Seller hannless In connection with any said entry and to restore the
Land to its previous state In the event ofany borings or other alteration of the Land.
12. !!rol(eral!e Fees, Upon the closing of this transaction, Seller shall pay from the
proceeds as referred to in paragraph two above to Gary Green Real Estate, 250 East Market
Street, Hanisonburg, Virginia 2280 I, a real estate selling fee, which fee has been agreed to by
separate agreement between Seller and Gary Green Real Estate, Each Party represents and
Page 3
Purchase Agreement - Carlisle. PA
" "
(b) Preparation ofSpcolaJ Warranty Deeds;
(0) One.half(ll2) Revenue stamps or transfer tax;
(d) Brokerage fee.
By Purc.bDm;
(a) Title insuranCe examination and premium;
(a)" Preparation of Mortgage, Deed of Trust or other applicable financing instruments;
(b) Recording fees;
(c) One-half(1/2) Revenue stamps or transfer tax;
(d) Escrow fees, if any.
18, Time of Essence: Acceptllnce. Time is expressly declared to be of the essence of
this Agreement. Seller shall have Two (2) days from the date of receipt of this Agreement to
accept and agree to the terms and conditions herein.
19. Mlscel_us Provlslon!1
(a) Entire A2reement. This Agreement contains the entire agreement between
Seller and Purchaser, and there are no other tenns, conditions, promises, undertakings, statements
or representations, express or implied, concerning'the sale contemplated by this Agreement.
(b) Headln2s. The headings to the Scotions hereof have been insel1ed for
convenience of reference only and shall in no wa}' modifY or restrict any provisions hereof or be
used to C'.onstrue any such provisions",
(0) Modifications. The terms of this Agreement may not be amended, waived or
tenninated orally, but only by an instrument in writing signed by both Seller and Purchaser.
(d) Successors. This Agreement shall insure to the benefit of and bind the parties
hereto and their respective successors and assigns.
(d) Govemln2 Law. This Agreement is being delivered and is intended to be
performed in the Commonwealth of Pennsylvania, and shall be construed and enforced in
accordance with the laws of such Commonwealth.
(e) ,ExhlbltL The exhibits attached to this Agreement are incorporated herein and
made a part hereof as though fully set out herein.
(f) Gender. Wherever the context so requires, all words herein in the neuter
gender shall be deemed to include the masculine or feminine genders, all singular words shall
include the plural, and all plural words shall include the singular.
20. Mill!lonal Warranties bv Seller, Seller hereby represents IInd warrants to the
best of hi~ knowledge to Purchaser that the Land is not contaminated with, nor threatened with
Page S
Pul'chase Agreement - Carlisle, P A
contamination from outside sources by, any chemical, material or substance to which exposure is
prohibited, limited or regulated by any federal, state, county. local or regional authority or which
Is known to pose a hazard to health and safety and that the Land has never been used for a
landflll, dump site, storage of hazardous substances, or by a manufacturer of any product or for
any other i~dividual use. This representation and warranty shall survive the Closing, In the event
that Purchaser notifies Seller (either before or after the Closing) that the representation set forth
in Paragraph 20 Is untrue and such notice is accompanied by a report from an engineering
company with experience in evaluating such matters, then Seller agrees, at its sole cost and
expense, to perfornl such acts as may be necessary to cause the Land to be in compliance with all
federal, state and local environmental laws, mlcs and regulations, In the event that Seller falls so
to perfonn such acts prior to the Closing, then Purchaser may postpone the Closing for such
period of time as may be necessary for SelicI' to do so. This Paragraph 20 shall survive the
Closing.
21. Condition of Property, It is understood and agreed that the Purchaser, or its
representative, has made an inspection of the property prior to the exr,cutlon of this Agreement,
and based on the inspection and information which may have been provided by the Seller as to the
condition of the property, has entered into this Agreement. Seller hereby warrants and guarantees
that the property will remain in its present condition, as of'the execution of this Agreement to and
including the day that title to said property is transferred to Purchaser, subject to the remaining
tenns and conditions of this Agreement.
22, Construction ofImprovements. Within flfteen (15) calendar days of both parties
execution of this Agreement, Seller shall provide Purchaser with complete plans and spr,cifications
in accordance with the site/grading/utility plans for the Eden Business Park which shall be'
attached hereto and marked Exhibit A (collectively referred to heroin as the "Construction Plans
and Specifications"),
No improvements or alterations which substantially vary from the approved plans may be
made without the prior consent of Purchaser. Seller warrants and guarantees that all work shall
be perfonned in a good and workmanlike manner and in confonnance with the above- mentioneo.d
Construction Plans and Specifications and all applicable governmental regulations. .
23, !&ntlneencles;,
(a) This contract is contingent upon Final land development plan approval for
Lot number 14 and Lot number 15 of the final subdivision plan known as Eden Business Park as
recorded or to be recorded in the Recorder's office of Cumberland County Pennsylvania. Said
land development plans shall generally follow the Eden Park Center development concept plan
attached hereto and marked Exhibit B. prepared by Advantage Engineering Services, Inc. File
#208 dated August 10, 1995 as revised Decemher 28, 1995 showing a Lowes Hotne
Improvement Store on lot 14 and a Wal-Mart Super Center on lot IS. Seiter to cooperate with
and lWlist Purchaser with the land development plan municipal approval process. All land
development plan approval costs shall be the responsibility of the Purchaser.
(b) Seller at or prior to closing, shalt deliver this site pad ready to within six (6)
inches of finish grade and compacted to local specifications for buildable property alld providing
all public streets, utilities, buffers to within five feet of pad as requested by Purchaser, Seller may
Page 6
Purohase Agreement - Carll.le, P A
"
Exhibit B
Exhibit c
Exhibit 0
~IASE AGRlmMENT
This Agreement Is dated os oftho.illlLday of Jalluary, 1996, between David Aiello
("Sell or"), and 1>1111 COlllllalllfl., II Nebraska CorporlltlclI, or assigns, ("Purchaser");
WITNESSETH:
I , :iB.lUIII,Ultrcha'fl. Sollor shall sell and Purchaser shall purchase, subject to the
lenlls and condlllons hcroln, Lot numbcr 14 and Lot number 15 of thc final subdivision plan
known as Edon Buslnoss Park liS rccorded or to be recordcd in the Recorder's office of
Cumberland County Pennsylvania, said Eden Business Park is located in the Borough of Carlisle
IIlId South Mlddletoll Towu.hlp, Cumberland County, Pennsylvania,
2, 1!l1rcha.e Prlc", The purchase price for the Land shall be NIne Million Four
IIIIIIIII'ed Twellty 1'hollllllld Dollars ($9,420,000.00) (the "Purchase Price") payable as follows:
(a) Olle Huudred Thollsand Dollars ($100,000.00) paid contemporaneously with the
execution by Purchaser oflhis Agreement to a mutually aClleptablc title company
(the "Escrow") to be held in an interest bearing escrow account, (the "Deposit")
wllh Interest accruing to Purchaser, It being understood that Dilll Companies shall
place a demand note for One Hundred Thousand Dollars ($100,000,00) with
Chicago Tille Omaha during the 30 day inspection period, On or before February
17, 1996, the note will be replaced with One Hundred Thousand Dollars
($100,000,00) cash; and
(It) At the end of the inspection period, Dial Companies will escrow the One Hundred
Thousand Dollars ($100,000,00) cash and a note in the amount of Four Million
Nine Hundred Thousand Dollars ($4,900,000,00), The note will be subject to the
necessary governmental approvals being obtained by Purchaser according to
paragraph 23 of this agreement.
(0) The balance of Nine Million Three Hundred Twenty Thousand Dollars
(59,320,000,00) paid on the date of the closing of this sale (the "Closing") by ,
cortlf1od check or Federal wire transfer; provided, however, that if the survey to be
prepared pursuanlto Section 4 herein reveals that the Land contains more or less
than Iforty.Seven and eight one-hundredths (47.08) acres, then the Purchase
Prico shown above shall be increased or decreased as applicable so that it shall be
an amount equal to the product obtained by multiplying Two Hundred Thousand
0011111'1 (5200,000.00) by the actual number of Acres, as defined in Seotion 4
herein, shown by the surveyor's certif1cation,
3, J<:lcrow. Purchaser and Seller shall deliver signed instructions to Chicago Title
Insurance Company, (the "Escrow") as escrow holder, within thirty (30) calendar days of both
parties execution of this Agreement which shall provide for closing as provided herein, Escrow
fees shall be tho sole responsibility of Purchaser. The "Close of Escrow" or the "Closing" shall be
Purchase Agreement - Carlisle, P A
the date Seller's special warranty deed is recorded, Concurrently with Seller's execution of the
escrow instructions, Seller shall execute a special warranty deed to convey title of the Property to
Purchaser, and Escrow Agent shall hold said deed until the Close of Escrow, For all purposes, the
date of the "opening of escrow" shall be the date of this Agreement. In the event of any
inconsistency between the escrow instructions and this Agreement, this Agreement shall control,
notwithstanding the fact that either party may have intentionally or inadvertently executed ~uch
inconsistent instructions,
4. Survey. Seller, at its expense, shall deliver to Purchaser a current survey of the
Land prepared by 'a Registered Surveyor (the "Survey"), The Survey, in form suitable to
Purchaser and "Title Company", as defined in Ser-tion 4 herein, shall (a) locate all present and
future easements, rights-of-way, 100-year flood plain, building lines, utility lines, roadways and
encroachments on or abutting the Land, (b) contain an accurate metes and bounds description of
the Land and (c) contain the certification of the surveyor as to the number of Acres (accurate to
two (2) decimal places) contained in the Land, Purchaser shall have seven (7) days from the date
of receipt of the Survey to approve same or to notifY Seller of its objections thereto, If Purchaser
notifies Seller of objections to the Survey, Seller shall have the Survey corrected as expeditiously
as reasonably possible, This shall be an ALT A Survey,
5, Title Insurance. Purchaser, at Purchaser's expense and within seven (7) days of
the date on which is receives a satisfactory Survey as provided in Section 4 hereof, sliall order a
standard form ALTA Owner's Title Commitment Policy (the "Commitment") covering the Land
and issued by a title insurance company of Purchaser's choice ("Title Comp~nyOl), together with
copies of all instruments, if any, referred to in the Commitment as exceptions to title, Purchaser
shall have twenty (20) days after receipt of the Commitment, together with copies of all
documents constituting exceptions to title and survey, to review and approve the Commitment. If
any exceptions appear in the Commitment, other than the standard pre-printed exceptions (which
shall be totally deleted in the Policy except that the survey exception may except shortages in
area), which are objectionable to Purchaser, Purchaser shall, within such twenty (20) day period,
notifY Seller in writing of such fact. UpOIl the expiration of said twenty (20) day period, Purchaser
shall be deemed to have accepted all exceptions of title as shown on the Commitment, except for
matters to which notice under the preceding sentence has been given by Purchaser, and such
exceptions shall be included in the term "Permitted Exceptions" as used herein, Seller shall, within
ten (10) days of receipt of said notice, clear the title of the defects and objections so specified,
The parties agree to close within seven (7) days following the date upon which all conditions and
contingencies, including without limitation defects in and objections to title, are satisfied,
6. Title and Deed. At the Closing, Seller shall convey to Purchaser, by Special
Warranty Deed in a form acceptable to Purchaser, marketable fee simple title to the Land, free
and clear of any and all encumbrances, subject only to the Permitted Exceptions as provided in
Section 5 herein, At the Closing, Purchaser shall also be able to obtain, at Purchaser's expense, a
standard form ALTA Owner's Title Insurance Policy (the "Policy") issued by the Title Company,
insuring marketable fee simple title to Purchaser in the full amount of the Purchase Price and
containing no exceptions or conditions oll.er than the Permitted Exceptions as provided In Section
5 hereof.
Page 2
Purohase Agreement. Carlisle, P A
7. :raxc. J1Ul AlSeumenl., Real property taxes, water rates and sewer charges and
rents, If lIny, shall be proraled and adjusted as of the date of settlement on either a fiscal or a
calendar year basis as llIay be "Ilpllcable 10 the particular lax or charge involved,
8, lra.lllfer IIl1d Sales Tans. The expense and cost of all Federal, state and local
dncumentary or revenue stamps, 'ransier, sales and other taxes, if any, relating to the sale of the
Land .hall be Slllll equally between the Purchaser and Seller on the date of Closing. Both parties
agree to executc any tax rcturns rcquired to be filed in connection with any such taxes,
9, ')ofaull by l'urchll~er, If Purchaser shall default in the perfonnancc of any of the
terms and conditions of this Agreement, or if the Closing shall not occur through the fault of
Purchaser, Seller shall, at its sole discretion elect to,
(a) receive from the escrow agent the full purchase price and retain all deposit
monies held by thCl escrow agent and other sums paid by the Purchaser on account
of the purchase price, whether required by this agreement 01' not, or
(b) apply all deposit monies held by the escrow agent and other sums paid by the
Purchaser on account of the purchase price to the Seller's damages, or
(c) apply all deposit monies held by the escrow agent and other sums paid by the
Purchaser on account of the purchase price as liquidated damages for such default,
In the event that the Seller elects to retain the monies as liquidated damages in accordance with
this paragraph, the Seller shall be released from all liability or obligation as this agreement shall be
NULL AND VOID, In any event the Seller and Purchaser shall also be entitled to specific
pClrformance and all other remedies available at law or in equity,
In the event either party brings an action to enforce its rights hereunder, the costs of such
action, Including reasonable attomey's fees of the prevailing party, shall bCl borne by the
non-prevailing party,
10, I>efllull by Seller. Except for a willful default hereunder on the part of the Seller,
in which ease Purchaser shall have all remedies available to them at law, if Seller fails or refuses to
comply fully with the terms of this Agreement through no fault of the Purchaser, then the escrow
amount shall be delivered by the escrow agent to Purchaser and such amount shall constitute
liquidated damages, and no other rights or remedies shall be enforceable or available to Purchaser
against Seller. Purchaser shall also be entitled to specific performance against Seller,
11. Rlllhl of Ent(!. At any tim\'l prior to the Closing, and at Purchaser's sole expense,
Purchaser or its authorized agents shall have the right to enter upon the Land, at reasonable times
and upon at least seven (7) days prior notice, to inspect the same and make such surveys and site
analyses, test borings and engineering studies as Purchaser may deem necessary. Purchaser hereby
agrees to indemnify and hold Seller harmless in connection with any said entry and to restore the
Land to its previous state in the event of any borings or other alteration of the Land.
12, Brokersl!e F~ Upon the closing of this transaction, Seller shall pay from the
proceeds as referred to in paragraph two above to Gary Green Real Estate, 250 East Market
StrCflt, Harrisonburg, Virginia 2280 I, a real estate selling fee, which fee has been agreed to by
separate agreement between Seller and Gary Green Real Estate, Each Party represents and
Page 3
Purchase Agrcemcnl - Carlisle, P A
, .
J .'
(b) Preparation of Special Warranty Deeds;
(c) One-half(l/2) Revenue stamps 01' transfer talC;
(d) Brokerage fee,
Btl.u~
(a) Title insurance examination and premium;
(a).'Preparation of Mortgage, Deed of Trust or other applicable financing instruments;
(b) Recording fees;
(c) One-half(I/2) Revenue stamps or transfer tax;
(d) Escrow fees, if any,
18. Time of Essence: Acceptance. Time is expressly declared to be of the essence of
this Agreement. Seller shall have Two (2) days fi'om the date of receipt of this Agreement to
accept and agree to the terms and conditions herein,
19, Miscellaneous Provlslon.u
(a) EntirLAl!reement. This Agreement contains the entire agreement between
Seller and Purchaser, and there are no other tenns, conditions, promises, undertakings, statements
or representations, eXI'ress or implied, concerning the sale contemplated by this Agreement.
(b) Headlnl!s. The headings to the Sections hereof have been inserted for
convenience of reference only and shall in no way modi/}' or restrict any provisions herl~~f or be
used to construe any such provisions,
(c) Modifications. The tenns of this Agreement may not be amended, waived or
tenninated orally, but only by an instrument in writing signed by both Seller and Purchaser,
(d) Successors. This Agreement shall insure to the benefit of and bind the parties
hereto and their respective Successors and assigns.
(d) Governln!! L!.U!. This Agreement is being delivered and is intended to be
perfonned in the Commonwealth of Pennsylvania, and shall be construed and enforced in
accordance with the laws of such Commonwealth,
(e) Elhlbltl, The exhibits allached to this Agreement are incorporated herein and
made a part hereof as though fully set out herein,
(f) Gender., Wherever the context so requires, all words herein in the neuter
gender shall be deemed to include the masculine or feminine genders, all singular words shall
include the plural, and all plural words shall include the singular,
20, Additional Wl!rrantles bv Seller. Seller hereby represents and warrants to the
br.st of his, knowledge to Purchaser that the Land is not contaminated with, nor threatened with
Page 5
Purchase Agreement. Carllsle, P A
contamination trom outside sources by, any chemical, material or substance to which exposure is
prohibited, limited or regulated by any federal, state, county, local or regional authority or which
I. known to pose a hazard to health and safety and that the Land has never been used for a
landfill, dU!l1p site, storage of hazardous substances, or by a manufacturer of any product or for
any other i'ndlvldual use, This representation and warranty shall sUlVive the Closing, In the event
that Purchaser notifies Seller (either before or after the Closing) that the representation set forth
In Paragraph 20 is unlr,.e and such notice is accompanied by a report from an engineering
company with eKperience In e,valuating such matters, then Seller agrees, at Its sole cost and
expense, to perform such acts as may be necessary to cause the Land to be in compliance with all
federlll, state and local environmental laws, rules and regulations, In the event thnt Seller fails so
to perform such acts prior to the Closing, then Purchaser may postpone the Closing for such
period of time as may be necessary for Seller to do so. This Paragraph 20 shall sUlVlve the
Closing,
21. Condition of Pronertv. I! is understood and agreed that the Purchaser. or its
representative, has made an inspection of the property prior to the execution of this Agreement,
and based on the inspection and information which may have been provided by the Seller as to the
condition of the property, has entered into this Agreement. Seller hereby warrants and guarantees
that the property will remain in its present condition, as of the execution of this Agreement to and
including the day that title to said property is transferred to Purchaser, subject to the remaining
terms and conditions of this Agreement.
22, Construction oflmnrovements. Within fifteen (IS) calendar days of both parties
execution of this Agreement, Seller shall provide Purchaser with complete plans and specifications
in acoordance with the site/grading/utility plans for the Eden Business Park which shall be
attached hereto IInd marked fudliblt A (collectively referred to herein as the "Construction Plans
and Specifications"),
No improvements or alterations which substantially vary from the approved plans may be
made without the prior consent of Purchaser, Seller warrants and guarantees that all work shall
be perfornled in a good and workmanlike manner and in conformance with the above- mentioned
Construction Plans and Specifications and all applicable governmental regulations,
23. Contlnl!encles:
(a) This contract is contingent upon Final land development plan approval for
Lot number 14 and Lot number 15 of the final subdivision plan known liS Eden Business Park as
recorded or to be recorded in the Recorder's office of Cumberland County Pennsylvania, Said
land development plans shall generally follow the Eden Park Center development concept plan
attached hereto and marke.d Exhibit B. prepared by Advantage Engineering Services, Inc. File
#208 dated August 10, 1995 as revised December 28, 1995 showing a Lowes Home
Improvement Store on lot 14 and a Wal-Mart Super Center on lot IS, Seller to cooperate with
and assist Purchaser with the land development plan municipal approval process, All land
development plan approval costs shall be the responsibility of the Purchaser.
(b) Seller at or prior to closing, shall deliver this site pad ready to within six (6)
inches of finish grade and compacted to local specifications for buildable property and providing
all public streets, utilities, buffers to within five feet of pad as requested by Purchaser, Seller may
Page 6
Purchase Agreement- Carlisle, PA
PURCHASER
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provide appropriate financial security for all such improvements in lieu of completion of
improvements at settlement. If Seller elects to provide financial security for the improvements as
hereinbefore mentioned, than Seller shall immediately following settlement commence and
thereafter diflgently proceed to constlllct all improvements in accordance with the
site/grading/utility plans as approved and recorded,
(c) Notwithstanding any other provision of this Agreement to the contrary.
Purchaser shall have the right to terminale this Agreement by giving written notice of termination
to Seller at any time within thirty (30) days of both parties exocution of this Agreement if
Purchaser, in Purchaser's sole and absolute discretion, determines for any reason whatsoever that
the development of the Subject Property a~ contemplated by Purchaser cannot be accomplished or
Is otherwise not feasible, If Purchaser timely and properly exercises such election, then this
Agreement shall terminate, the Escrow Amount shall be refunded to Purchaser (except for
51,000.00, which shall be paid to Seller in further consideration of entering into this Agreement)
and neither party shall be under any further obligation to the other,
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
yeM first above written,
WITNESS OR ATTEST:
SELLER
David Aiello
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ATTEST:
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Page 7
Purchase Agreement. Carlisle, P A
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Exhibit F
ElChlbltG
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AGRIIlIllMBNT
This AqreeUlent is entered into on this 19th day ot February,
1996, by and between Donald F. Day, Patrioia Day, Patriok Day,
Terry L. Clautt, James M. Thorburn, Christopher R. Held, Robert
Welstead, Merle l,ee, John Hughes, Rick North and Royoe Maynard
("option Group") and Dial Development Partners, l..L.C..
WHEREAS, Dial Development Partners, L.L.C. ("Dial Group") has
. an option to purohase oertain property in Carlisle, Pennsylvania.
. WHEREAS, a Dial Group is obligated to make a oertain optiqn
payment of $100,000.00 to David Aiello to Classio Title on February
19, 1996.
WHEREAS, the Option Group has agreed to pay the neoessary
tunds to make the payment due on February 19, 1996 (individually in
the amounts set forth on Sohedule A).
WHEREAS, in consideration of. the Option Gtv....' making said
option date, the Dial Group agrees to convey 20% ownership in the
property.
WHEREAS, the option payment is a forgivable loan if the
projeot is olosed for consideration of tha 20% ownership interest,
not a equity contribution.
THEREFORE, for valuable consideration the parties hereby agree
as follows:
1. That the Option Group shall make the option payment in
the sum of $100,000.00.
2. That the Option Group shall have 20% ownership in the
Carlisle property.
3. That in the event the option money is lost, the Option
Group shall reoeive 10% ownership in the Huntsville
projeot. If the Huntsville investment does not ooour"
Dial Development Partners, L.L.C, shall issue a note at
9% interest oommenoing on February 19, 1996 payable on or
before February 19, 1997.
CI\WP51\WlKEC\AGREEMEN\CARLISLE.AGR
February 20, 199&
EXHI8IT
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SOH.DULI A
Donald P. Day $,5,000
Patricia Day $ 5,000
Patriok Day $ 5,000
Terry L. Chuff $10,000
.Tames M. Thorburn $10,000
Christopher R. Held $15,000
Robert Welstead $10,000
Merle Lee $10,000
John Hughes $10,000
Riok North $10,000
Royoe Maynard $10,000
CI\WP51\NIKBC\AGRBEMBN\CARLISLB.AGR
February 20, 1996 3
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"a"l.bura, PA 17108-0889
Name of Server:
Dllerrlme of Service:
Place of Service:
Documenls Served:
Service of Proce.. on:
Person Served, and
Method of Service:
Descrlplion of Person
Recelvlng Documenls:
Signature of Server:
--Robert Selcha
Court Case No. 1546-1998
Tc> t""\ V ~ (~ K , undersigned, being duly sworn, deposes and says
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that on the ~dny of J", l\ e , 19 .J!.., at 1: 'IS' o'clock 2M
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the undersigncd sorved the doculllents described as:
Writ of Summons
A true and correct copy of the aforcsaid doculllent(s) was served on;
Robert Sel.hl
rxJ By personally doliverins them into the hands of the person to be served,
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suitable age and discretion residing at the Place of Service,
whose relationship to the person to be sorved is
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The person receiving documents is described as follows:
Sex..ill....; Skin Color W ; Hair Color b(.~; Facial Hair fVo
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the lime of service,
Undersigned declares under penalty of pe~jury
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/;2 day of ~ ,19?J'
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Signature of Server
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DAVID AIELLO,
Plaintiff
IN THE COURT OF COMMON PLEAS
I CUMBERLAND COUNTY / PENNSYLVANIA
vs.
DIAL COMPANIES, a/k/a DIAL
PROPERTIES, CO./ DIAL DEVELOPMENT
PARTNERS, L.L.C., and LAKE
MANAWA-CARLISLE, l..P. /
Defendants
NO. 96 - 5726
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CIVIL ACTION -
AFFIDAVIT
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF' DAUPHIN
ss:
Before me, the undersigned notary public, this day,
personally appeared CATHLEEN A. KOHR of the law firm of Hepford,
Swartz & Morgan, 111 North Front Street, Harrisburg, Pennsylvania
17101., satisfactorily proven to be the within affiant, and who
being duly sworn according to law, deposes and says that on May 1.5/
1998, she mailed the Writ of Summons in the above-captioned case
by Certified Mail Return Receipt Requested, Restricted Delivery,
Article No. Z 424 288 859 addressed to Dial Mgt. Co., 11506
Nicholas Street, Omaha, Nebraska 68154/ and the same was received
on May 19/ 1998, as indicated by the return receipt card attached
hereto.
c~~~
Cathleen A. Kohl'
'-
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Nol81lal Seal
Deborah S, !lqyer. NotarY Pldo
Harrisburg, Dauphin COOOllt
My Commission EXplrea May 8, 2000
bar, ,nnsylvanla Assoclallon 01
EXHIBIT "A"
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Receipt for Certified Mall
flo Irwuranct Covor.ge Provided,
llo nol u.. fOllnlom.1Iona1 Mall S.. re"'lI.
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1998
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DAVID AIELLO,
Plaintiff
I IN THE COURT OF COMMON PLEAS
CUMBERIJ\ND COUNTY, PENNSYLVANIA
vs.
DIAL COMPANIES, a/k/a DIAL
PROPERTIES, CO., DIAL DEVELOPMENT
PAR'l'NERS, L, L. C ., and LAKE
MANAWA-CARI,ISLE, L.P.,
Defendants
CIVIL ACTION
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NO. 96 - 5726
ss:
COUNTY OF DAUPHIN
Before me, the undersigned notary public, this day,
personally appeared CATHLEEN A. KOHR of the law firm of Hepford,
Swartz & Morgan, 111 North F'ront Street, Harrisburg, Pennsylvani.a
17101, satisfactorily proven to be the within affiant, and who
being duly sworn according to law, deposes and says that on May 15,
1998, she mailed the Writ of Summons in the above-captioned case
by Certified Mail Return Receipt Requested, Restrict.ed Del ivery,
Article No. Z 424 288 860 addressed to Dial Development Partners,
L.L.C., 11506 Nicholas Street, Omaha, Nebraska 68154, and the same
was received on May 19, 1998, as indicated by the return receipt
card attached hereto.
CftJ~P ~. K'~/
Cathleen A, Kohl'
Sworn to and s~9~fribed
before me this~ day
Jun, 98.
)
-
Notarial Seal
Deborah S, Boyar. Notary PubIIo
Harrisburg, Dauphin County
My Commlaolon Expires Mey 8, 2000
ember, Pennsylvania Assoclallon 01 Nollrlel
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DAVID AIELLO,
plaintj,ff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
va.
DIAL COMPANIES, a/k/a DIAL
PROPERTIES, CO., DIAL DEVELOPMENT I
PARTNERS, L.L.C., and LAKE
MANAWA-CARLISLE, L.P.,
Defendants CIVIL ACTION - LAW
I NO. 96 - 5726
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.\FFIDAV.1.I
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF DAUPHIN
Before me, the undersigned notary public I this day,
personally appeared CA'l'HLEEN A. KOHR of the law firm of Hepford,
Swartz & Morgan, 111 North Front Street, Harrisburg, Pennsylvania
17101, satisfactorily proven to be the within affiant, and who
being duly sworn according to law, deposes and says that on May 15,
199B, she mailed the Writ of Summonn in the above-captioned case
by Certified Mail Return Receipt Requested, Restricted Delivery,
Article No. Z 424 288 on addressed to Dial Companies, 11506
Nicholas Street, Omaha, Nebraska 68154, and the same was received
on May 19, 1998, as indicated by the return receipt card attached
hereto.
c.~"J. f(L
Sworn to and suq~pribed
before me this~ day
June, 199B.
\
[J Notarl8J Seal
Deborah S, Boyer. NotarY NlIo
Hnrr!,b'lrg, DBU hln COunty
.~~mmi"loo E,pPres May 8, 2000
I:,' '"r,P,nnsylvanla Assoclallon of NotJr1tt
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6-4.91
DAVID AIE'-'LO,
l IN THE COURT OF COMMONP~EAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaint.iff
VB.
NO. 96 " 5726
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DIAL COMPANIES, a/k/a DIAL
PROPERTIES, CO., DIAL DEVELOPMENT
PARTNERS, L.L.C., and LAKE
MANAWA-CARLISLE, L,p.,
Defendants
CIVIL AC'rION -
AFFIDAVIT
COMMONWEALTH OF PENNSYLVANIA )
) ss:
COUNTY OF DAUPHIN )
Before me, the undersigned notary public, this day,
personally appeared CATHLEEN A. KOHR of the law firm of Hepford,
Swartz & Morgan, 111 North Front Street, Harrisburg, Pennsylvania
17101, satisfactorily proven to be the within affiant, and who
being duly sworn according to law, deposes and says that on May 15,
1998, she mailed the Writ of Summons in the above-captioned case
by Certified Mail Return Receipt Requested, Restricted Delivery,
Article No. Z 424 288 871 addressed to Dial Properties Co., 11506
Nicholas Street, Omaha, Nebraska 68154, and the same was received
on May 19, 1998, as indicated by the return receipt card attached
hereto.
(!~/~ A. ){L
Cathleen A. Kohr
NotIUIaI Seal
De~Qh S, Boyer, Nolery P\JbIIO
Harrisburg, Dauphin County
My Commlsolon Expires May 8, 2000
',too:,,':" ~"l<l",ylvanla ~.oolltlon of Notaries
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DAVID AIELLO,
Plaintiff
IN THE COURT OF COMMDN !JLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
V~.
DIAL COMPANIES, a/k/a DIAL
PROPERTIES, CO., DIAL DEVELOPMENT
PARTNERS, L.L.C., and LAKE
MANAWA-CARLISLE, L.P.,
Defendants
NO. 96 - 5726
CIVIL ACTION -
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MP'IDAVIT
COMMONWEALTH OF PENNSYLVANIA )
) ss:
COUNTY OF DAUPHIN )
Before me, the undersigned notary public, this day,
personally appeared CATHLEEN A. KOHR of the law firm of Hepfor:d,
Swartz & Morgan, 111 North Front. Street, HarriSburg, Pennsylvania
17101, satisfactorily proven to be the within affiant, and who
being duly sworn according to law, deposes and says that on May 15,
1996, she mailed the Writ of Summons in the above-captioned case
by Certi f ied Mail Ret. urn Receipt Requested, Restricted Del i very,
Article No. Z 424 2BB 869 addressed to Lake Manawa-Carlisle, L.P.,
3.1506 Nicholas Street, Omaha, Nebraska 68154, and the same was
received on May 19, 1998, as indicated by the return receipt card
attached hereto.
J1~~~J(L
Cathleen A. Kohl'
Sworn to and s~q~rribed
before me this~A day
D~~
--- Notary pu I c
r"'~~r~~ ~~:~.S~:tal'( ~
H",o1eburo, Dauphin CQu""2000
My Co'.lml8alon EJ(jlIrll8 May 8,
~' ",_ --;.: ~I,,,'l.t ;'t::ic,~ialloll tit Notaries
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Z 424 21111 "Ibll
US POllal Slrvlc.
Receipt for Certified Mall
No InlO,.nc. Co..rego Provided.
Do nol u.. lor Inlem.tlonal 1.4.11 S..,...rs.
10
I'<ttogo $ .32
CtIItIIedFH 1. 5
8jleclal OeIivlllY Fee
Aeolriclod Oel..../'f Fee 2.75
~ Rotum Aoco/pI Showilg t. 1.10
~ l_!le_
i Aolmf\o:olll~~_,
.1IoIl1_.Adohot
TOTAL POItIgo l F... $ 5.52 1
POSlma'" or Dill
MAY 15. 1998
~ I~~ loncvor. "" Idclltlonol_., I also wish to ,ecelve tha
t '\lomilIel. - s..... ond 4b, following ..lilt... (for an
I .PIfnt"""'.......ond.dd.... on tho "_0111III Ionn 00 111I1 WI.." lllIumW. .xl,a 'ee);
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"AIIocII"1onn 10 1110 tOOl 011110 moIlplooo, or on tho bod< N ""'01_ no! I, Q Add,....... Addr...
I 1l::'!R-, RICI/pI n.o-tOd'on tho IIIIIIplooo _tho IIttcIo fMlllltr. 2, I!D R..trtoted DallvelY
ti ITho Ate"", _plWlI ot.M to _tho IIIIe1e WI. doI'IIIId ond 1111 dll. J
8 . cIoIlYIttd, Consult IlOIlmaat., fo, 'aa.
I 3, McI. Add'''1ed to; oIa, A . u
z 424 288 868
I LAKE MANAWA-CARLISLE. INC. ~b,. ypo
11506 NICHOLAS STREET 0 R.glet8led
OMAHA. NE 68154 0 ExpI888Mall
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TRecalved By; (Print N4mi1)
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