Loading...
HomeMy WebLinkAbout98-06936 '! "",1, '~Ji ' u ,~ H . .. I) l~ .~ I ~ ~ '? ~ I l~ \ . I I- i It ; ~ I :\1 i 1~1 ""..'t{.l., '~;:! 'W:i! ~t '.:i*:: ,:,,", ...,1 "';h I i I I J i I i I ; i \ I I I "j i i i ,,'I ,~ ..:.,.:$~ "!~(; .,...... ~~ .'."~[?:~ :;;:~ ''':::~l.~ :'~&. .~ 'I ':i\~ '~:i1 :;;ti', ~ ",~';~ J i '- ~ - . . .:) .. c;::) ~ 11), c:t- -..J :::~ " i '-- ! / r ~ \'--) + ........ .....J '''J Pi! rf ~ "'J l/J ~ i rc '::--... '0 J \ 0 ':::Jr. e ~ oi ~ ==f ~ ~ ~ }~ U r::d.. J ~ , f""M.~~~.c: /f~ '" . / "' /1~f2JJb fJr: lime#- , . . , Mechanicsburg, Cumberland County, Pennsylvania,'and are the owners of the property where Twin Ponds Recreational facility is located at 207 Lyndale Court, Mechanicsburg, Pennsylvania. FACTS 10. The facts and occurrences hereinafter stated took place on or about December 27, 1996, in the Twin ponds' ice arena at approximately 7:00 a.m. 11. At the aforesaid time and place, the Plaintiff, Loris Fogal was a business invitee of the Defendant, and as such was lawfully on the premises of the Defendants. 12. The Twin Ponds facility had recently been completed. As part of the construction, a foam padding material was installed in the spectator area. 13. The installation of the padding was not complete and part of the floor was concrete and part was covered with padding. 14. Some areas of concrete where the padding was not installed contained an adhesive for the padding. 15. At the aforesaid time and place, the Plaintiff, Loris Fogal, was a spectator at a hockey tournament. 16. At the afores~id time and place, the Plaintiff, Loris Fogal, was standing behind a goal in the spectator area watching the game. " 3 ~ >- a , " ~.' (": ". I , ." t. ." 'J c..:. ", ,- I r .~" C) .J () . ~-) LORIS FOGAL and, JOHN FOGAL, her husband, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA >~ . Plaintiffs v. CIVIL ACTION - LAW TWIN PONDS, INC., a Pennsylvania corporation; D. CRAIG PATTON, G." REEDER PATTON, III, WILLIAM A. PATTON, SUSAN E. SANDERS, " SCOTT M. SANDERS, trading and doing business as PATTON RECREATIONAL PROPERTIES, NO. 98-6936 CIVIL Defendants JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this iJlL. day of cO ctoh1..^-/ , 1999, I, Gerard C. Kramer, Esquire, attorney for the Plaintiff, hereby certify that I have, this day, served a time-stamped copy of the Complaint by depositing a copy of the same in the United States Mail, first-class mail, postage prepaid, at Harrisburg, Pennsylvania. addressed to: Twin Ponds, Inc. 207 Lynndale Court Mechanicsbtrg, PA 17055 Defendant D. Craig Patton 207 Lynn?ale Court Mechanicsburg, PA 17055 Defendant G. Reeder Patton, III 207 Lynndale Court Mechanicsburg, FA 17055 Defendant Page 1 of 2 , '" .:' ';::I:"'~'/' {"~": """",:"-""~';-"':''''~'''''n,:,,:,:~:-~''.-'-:'':",:~~ ",~.'~-'-';'1::-::'~;-' : "..',. '. ,~':"4:. .', '. "':,", J - E ~ ..... .., :> .., u 1.0 M '" 1.0 I CX> 0'\ :t '0 c: i ~~j' .., ~ s '0 c: Cll .!l Ul ,g ~ OJ ..c: c: o '.... Ul .j.J OJ III ..... ~, -e ~S, 8. 8 ,~g'e c: <1J..... D. III 0'0 0 ..4 ~ c: 't:I,......; ~ .j.J It: Cll :>P'lUl'gg ,......; . rtl...-/ J..I~ .j.J . <1J 0> III @a1~.~~ <1J<1JUl'OU D. 0:: ::l Cll <1J U) j..~ ~ t.:J ....j.J c c: '0 ... 0 U).j.J' C+Jt-.I..JJ O.j.J<1J1ll .j.J1ll'tlD. .j.JP..C: III III Ul P.. . Ul '" b'I~ . If) ..... III :<:: I Ul ~ ~~ ~. i~l'.~ . ..... 8 Ul o :2 UlIE , Ul c: o ..... .j.J Cll ..... "~ III U c: <1J H~ ..... <l: Ul P..,ll< -e ~' ,g; aOEm Ul ~::< Ul~U B..... ~ CllN 8 ;2:;;!m . 'tl ~ Ii: .. ." ~ Q Z~ <~ QZ ~~ Zr.t. ....~ CQ ........:l 0< E-cZ ~O ~E ~O Q < 0' Ul ~~ ~ 'OH r- k ft;l.j.J ~< rrJ_ ~ -l5...,~~ .1""1 .j.J U1 0:: p.; Ul ..1'\ .t] ClI~;;; ~m8.g~ ~ -..-4 \.0 ItS ...t.n "" I kXo ~r- ;~t!r-Cll"'" .......:;;~:I:r- ijo E o ~ .;: ~. '" /"', ,~, :;;'\~>.:' ~" " i ,,", .:",,". ;. ,'. '~: -' ::.~:' ~",:"" ~..: ": .':' Ih?" ':'~:':~."~',: ",': :.......". ,'" ,~" .::-; '.' '~', . ~ . ..... rrJ ~ E ~ ,;; " " ',:: :0 ." <( ~ l1' ~ ." c<; ,,= ~ ?<t; <'Ji;": ()7:; <... 'r: ~ 0,1. \': :~: ;;-, -,1_'-- 0?: f,I;:" -;.' - J' . c" ~.J' (f) I',r.. N "::'1';!. ,:r{... ccZ II' ".~ . :::>' ""~ Co> r.r)C, \;... - ~ - \l4 a- "::> 0 a- a . LORIS FOGAL and JOHN FOGAL, her husband, Plaintiffs v. TWIN PONDS, INC., a Pennsylvania Corpor.ation, D. CRAIG PATTON, G. REEDER PATTON, III, WILLIAM A. PATTON, SUSAN E. SANDERS, SCOTT M. SANDERS, trading and doing business as PATTON RECREATIONAL PROPERTIES, Defendants v. ABACUS SPORTS INSTALLATIONS, LTD., Additional Defendant ." ..' IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAlv NO. 98-6936 CIVIL. JURY TRIAL DEMANDED DEFENDANTS' ANSWER WITH NEW MATTER TO THE PLAINTIFFS' COMPLAINT 1. Admitted. 2. Admitted. 3. Admitted. 4 . Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Adrni d:ed. By way of Properties is a partnership. 10. Admitted. further answer, Patton Recreational .~ . Paragraph 17 is specifically denied and strict proof thereof is demanded at the time of trial. 18. After reasonable investigation, Defendants are without sufficient knowledge to form a belief as to the truth of the . averments of Paragraph 18. Therefore, each and every averment of Paragraph 18 is specifically denied and strict proof thereof is demanded at the time of trial. 19. Admitted in part, denied in part. Admitted that at the aforesaid time and place, Plaintiff, Loris Fogal, fell to the floor. After reasonable investigation, the Defendants are without sufficient knowledge to form a belief as to the truth of the remaining averments of Paragraph 19. Therefore, the remaining aver~ents of Paragraph 19 are specifically denied and strict proof thereof is demanded at the time of trial. 20. Each and every averment of Paragraph 20 is specifically denied and strict proof thereof is demanded at the time of trial. To the contrary, if the Plaintiff had been exercising due care at the time and place referred to in the Plaintiffs' Complaint, she would not have fallen. 21. Paragraphs 1 through 20 of t.he Defendants' Answer IHth New Matter arc incorporated herein by reference. 22. The averments of Paragraph 22 constitute a conclusion of law to which no response is required. To the extent thilt a 3 . . J ,'. response is deemed required, each and every averment of Paragraph 22 is specifically denied and strict proof thereof is demanded at the time of trial. 23. The averments of Paragraph 23 constitute a conclusion of law to which no response is required. To the extent that a response is deemed required, each and every averment of paragraph 23 is specifically denied and strict proof thereof is demanded at the time of trial. 24. The averments of Paragraph 24 constitute a conclusion of law to which no response is required, To the extent that a response is deemed required, each and every averment of Paragraph 24 is specifically denied and strict proof thereof is demanded at the time of trial. 25. The averments of Paragraph 25 constitute a conclusion of law 'to which no response is required. '1'0 the extent that a response is deemed required, each and every averment of Paragraph 25 is specifically denied and strict proof thereof is demanded at the time of trial. 26. After reasonable i.nvestigation, Defendant is without suff icient knowledge to form a belief as to the truth of the averments of paragraph 26. Therefore, each and every averment of Paragraph .26 is specifically denied and strict proof thereof is demanded at the time of trial. 4 .... ~ 27. After reasonable investigation, Defendant is without sufficient knowledge to form a belief as 'to the truth of the averments of Paragraph 27. Therefore, each and every averment of paragraph 27 is specifically denied and strict pr.oof thereof is demanded at the time of trial. 28. The averments of paragraph 28 constitute a conclusion of law to which no response is required. To the extent that a response is deemed required, each and every averment of Paragraph 28 is specifically denied and strict proof thereof is demanded at the time of trial, 29. After reasonable investigat,ion, Defendant is without sufficient knowledge to form a belief as to the truth of the averments of Paragraph 29. Therefore, each and every averment of Paragraph 29 is specifically denied and strict proof thereof is demanded at the time of trial. 30. After reasonable investigation, Defendant is without sufficient knowledge to form a belief as to the truth of the averments of Paragraph 30. Therefore, each and every averment of Paragraph 30 is specifically denied and strict proof thereof is demanded at the time of trial, 31. After reasonable investigation, Defendant is without sufficient knowledge to form a belief as to the truth of the averments of Paragraph 31. Theref ore, each and every averment of 5 . law to which no response is required, To the extent that a response is deemed required, each and every averment of Paragraph 41 is specifically denied and strict proof thereof is demanded at the time of trial. 42. The averments of Paragraph 41 constitute a conclusion of law to which no response is required. ,!'o the extent that a response is deemed required, each and every averment of Paragraph 41 is specifically denied and strict proof thereof is demanded at the time of trial. 43. The averments of Paragraph 43 constitute a conclusion of law to which no response is required, To the extent that a response is deemed required, each and every averment of Paragraph 43 is specifically denied and strict proof thereof is demanded at the time of trial, 44. The averments of Paragraph 44 con5titute a conclusion of law to which no response is required. To the extent that a response is deemed required, each and every averment of Paragraph 44 is specifically denied and strict proof thereof is demanded at the time of trial. 45. Paragraphs 1 through 44 of the Defendants' Answer With New Matter are incorporated herein by reference. WHEREFORE, Defendant, D. Craig Patton, respectfully requests Your Honorable Court to dismiss the. Plaintiffs' Complaint with 8 response is deemed required, each and every averment of paragraph 61 is specifically denied and strict proof thereof is demanded at the time of trial. 62. The averments of Paragraph 62 constitute a conclusion of law to which no response is required. To the extent that a response is deemed required, each and every averment of paragraph 62 is specifically denied and strict proof thereof is demanded at the time of trial. 63. paragraphs 1 through 62 of the Defendants' Answer with New Matter are incorporated herein by reference. WHEREFORE, Defendant, Susan E. Sanders, respectfully requests Your Honorable Court to dismiss the Plaintiffs' Complaint with prejudice. 64. Paragraphs 1 through 63 of the Defendants' Answer with New Matter are incorporated herein by reference. 65. After reasonable investigation, Defendant is without sufficient knowledge to form a belief as to the truth of the averments of paragraph 65. Therefore, each and every averment of Paragraph 65 is specifically denied and strict proof thereof is demanded at t.he time of trial. WHEREFORE, Defendants, Twin Ponds, Inc., D. craig Patton, G. Reeder Patton, III, William A. Patton, Susan E. Sanders and Scott M. Sanders, respectfully request Your Honorable Court to dismiss 12 Exhibit -A- ( (' Taxes and Assessments 2,02 In addition to the Fixed Rent specified in Paragraph 2.01, Lessee shall be responsible for all real property and personal property taxes, water and sewer charges, special assessments of any kind or nature whatsoever and any other public charge levied upon or assessed against the Premises or any portion thereof, or on any buildings or improvements now or hereafter located thereon, or arising by reason of occupancy, use or possession thereof and any taxes on rent now or hereafter in force and any other similar cllarges now or hereafter in effect, whether or not such charges or any of them are or may become a lien on the Premises (collectively, the "Taxes"); (ii) all premiums on the insurance policies referred to in Article 9; (iii) all sums which may become due by reason of the failure of Lessee to comply with any of the terms, covenants and conditions of this Lease to be kept and observed by Lessee, and any and all damages, costs and expenses (including, without limitation thereto, reasonable atlorney's fees) which Lessor may suffer or incur by reason of any default of Lessee and any damaaes' 10 the Premises caused by any act or omission of Lessee. These shall be payable directly to the entity imposing the tax, assessment, or charge at least thirty days prior to the date on which the payment is due. Lessee shall provide Lessor with a receipt or other evidence of payment for each such tax, assessment, or charge paid as soon as a receipt or other evidence is available to Lessee, (a) Lessee may, at its own expense, contest any tax or assessment for which Lessee Is responsible under Paragraph 2.02. Except as provided in Paragraph 2.02(b), Lessee need not pay the tax, assessment, or charge during the pendency of the contest. Except as provided in Paragraph 2.02(b), Lessee may prevent Lessor from paying any tax, assessment or charge that Lessee is contesting under this Subparagraph pending resolution. of the contest, by depositing with Lessor the full amount of tax or assessment, plus the amount of any penally that might be imposed for failure to make timely payment and interest at the rate imposed by the entity levying the tax or assessment. On fmal resolution of the tax or assessment contest, Lessee may use the money deposited with Lessor to pay any tax or assessment, plus any penalty or interest, due under the final resolution, and keep the b<llance of the deposit, if any. If the deposit is insufficient 10 P<lY these amounts, Lessee must immediately pay the balance due to the entity imposing the lax, assessmenl 3 (' (' and neighborhood, the topography and possible. presence of swamp, ponds, wetlands, nood plains or steep slopes on the Premises, or ground water and . subsurface conditions under or near the Premises, the availability or unavailability of access to the Premises, the availability or unavailability of public water and sewer or other utility selVice to the Premises, the zoning, subdivision and other requirements applicable to" the Premises, any environmental matters affecting the Premises including, but nct limited to, the presence or absence of any asbestos containing materials, gasoline storage tanks, toxic waste or hazardous substances in, on, under, or in any manner affecting the Premises, the discharge of any hazardous substances under, onto or from the Premises, and that the Premises is being leased in its "as is" "where is'.' condition without any representation by or on behalf of Lessor concerning the Premises, any surrounding properties or any quality thereof. Lessee agrees that . the Premises complies in all respects with all requirements of this Lease and acknowledges that Lessor makes no representation or warr"nty with respect to the condition of the Premises or ils fitness or availability for any particular use, 4,02. Lessee shall, throughout the term of this Lease and any exlensions of that term, at its own expense and risk, maintain the leased Premises in good order and condition, including but not limited to, making all repairs and replacements, renewals and additions, interior and exterior, structural and non-structural, ordinary and extraordinary, foreseen and unforeseen, necessary to keep and maintain the Premises and all systems, equipment and apparatus appurtenant thereto or used in connection therewith and improvements- in 900d- Older and condition. All. maintenance, repairs, and replacements required by this Paragraph must be performed promptly when required and in a manner that will not cause depreciation in the value of the Premises. Lessee shai; return the Premises to Lessor in such good order and condition at the expiration of the term hereof, ordinary wear and tear excepted. Any repairs, replacements, renewals and additions and any labor performed or materials furnished in, on or aboullhe Premises shall be performed and furnished in strict compliance with all applicable laws, regulations, ordinances and requirements of all duly constituted municipal authorities or other governmental bodies having jurisdiction over the Premises and the requirements of any Board of Underwriters having jurisdiction thereof. 4.03. In the event Lessee fails to perform its obligation 10 repair, replace, or maintain as sel forth in Paragraph 4.02, af1er a reasonable time after notice from Lessor of the need for such repair, replacement, or maintenance, Lessor may ':(lter tile Premises and make such repairs or replacements, or perform such maintenance or cause such repairs or replacements to be made or maintenance 10 be performed, at its own expense. Upon Lessor's nolice to L('ssee of lhepelformance and cost of any maintenance, repairs, or replacements. Lessee shall immediately reimburse Lessor for any reasonable costs incuned by Lessor, together with interest on any s ( (' Disabilities Act. Lessee has the right to remove all trade fixtures at the termination of this Lease, provided Lessee is not in default under the Lease and that the fixtures can be removed without structural damage to the building, Lessee must repair and restore any damage or injury to the building, structures and improvements now or hereafter erected on the Premises caused by installation or removal of trade fixtures, and all . such repairs must be completed prior to the termination or the Lease. Any trade fixtures that have not been removed by Lessee at the termination of this Lease shall be deemed abandoned by the Lessee and shall automatically become the property of Lessor. In the event any trade fixture installed by Lessee is abandoned at the termination of the Lease, Lessee must pay Lessor any reasonable expense actu311y incurred by .Lessor to remove the fixture from the Premises, less the fair market value of the fixture once removed, provided the fixture is removed prior to the entrance of any subsequent Lessee onto the Premises. Signs 7.02. Lessee shall have the right to erect signs on any portio/tof the leased Premises, including but not limited to, the exterior walls of the Premises but only subject to, and in accordance with, all applicable laws, ordinances, rules and rerJulations. Lessee, at Lessee's sule cust, shall rGrTouVe all signs at the termination of this Lease and repair any damage or injury resulting from the erection or removal of the signs. ARTICLE 8. MECHANICS' LIENS 8.01. Lessee shall promptly pay any contractors and materialmen who supply labor, work or materials to Lessee at the Premises or the Building so as to avoid the possibility of a lien attaching to the Premises or the Building. Lessee will not permit any mechanic's lien or liens to be placed on the Premises or improvements on the Premises. If a mechanic's lien is filed on the Premises or on improvements on the leased Premises, Lessee will promptly cause it to be discharged of record by payment, deposit, bond, order of coul1 or othelwise or will pay the lien. If default in payment of the lien continues of record for twenty days after written notice .f(om Lessor to Lessee, Lessor may, at its option, pay the lien or any portion of it without inquiry as to its validity. Any amounts paid by the Lessor to remove a mechanic's lien caused to be filed against the Premises or irnprovements on the Premises by Lessee, including expenses and interest, shall be due f/om Lessee to Lessor and shall be repaid to Lessor immediall;ly on receipt of notice, together with inte/est at the highest 8 ( (' contractors, employees, sublessees, concessionaires, or licensees in or about the Premises. In case of any action or proceeding brought against Lessorby reason of any such claim, Lessee, on notice from Lessor, agrees to defend the action or proceeding, This shall not be construed as in any way limiting Lessee's obligations under Article 9. 9,05. (a) Lessee shall not lake out separate insurance concurrent in form or contributing, in the event of loss, with that required to be furnished by Lessee pursuant to this Article, nor shall Lessee increase the amounts of any then existing increase by securing an additional policy or additional policies, without in either instance including Lessor as an insured party. (b) The insurance policies referred to in Paragraph (a) and (b) above shall be undel\vritten by insurance companies with Best's "A" rating or beller. Lessee shall deliver \0 Lessor certificates of all insurance policies on or before the first day of the term hereof and thereafter ten days prior to the execution of any such policy. lessee shall also deliver to Lessor receipts evidencing payment of all insurance premiums, which detivery shall be at least ten days prior to the dale such premiums are due, (c) Each of the parties hereto hereby releases the other, to the extent of each ::''lrty's insurance coverage, from any and allliabilily for any loss or damage which may be inflicted upon thQ propel1y of such pro, cvcn if c:Jch !ess or damogc shall be brought about by the fault or negligence of the other party, its agents or employees: provided, however, that this release shall be effective only with respect to loss or damage occurring during such time as the appropriate policy of insurance shall contain a clause to the effect that this release shall not affect said policy or the right of the insured to recover thereunder. If any policy does not provide for such a waiver, and if the. party to benefiltherefrom requests that such a waiver be obtained, the oiher party agrees to obtain an endorsement to such insurance policy permitting such waiver of subrogation if it is available. If an additional premium is charges for such waiver, the party benefitting therefrom, if it desires to have the waiver, agrees to pay to the other the amount of such additional premium promptly upon being billed therefor. ARTICLE 10. DAMAGE OR DESTRUCTION OF PREMISES Notice to Lessor 10.01. If the leased Premises, or any structures or improvements on the leased Premises, should be damaged or destroyed by lire. Ilood, or othercasu:illy, Lessee shall give immediate wlittcn nolice of the damage and, as far as known to Lessee, the cauce of the damage, 11 ( ( Total Destruction ,"I 10,02. Damage or destruction of all or any portion of the Premises, or any bUildings or other improvements now or hereaf1er erected thereon, by fire, the elements, or any other cause whatsoever, shall not caUSe an abatement of rent or entitle Lessee to surrender the Premises or in any other way affect the respective obligations 01 Lessor and Lessee hereunder. 10.03. In the event of any such damage or destruction Lessee hereby authorizes Lessor, and appoints Lessor as its attorney.in.fact, to endorse any check drawn to the order of both Lessor and Lessee for the proceeds of any insurance, and Lessor may deposit any such check in its own account and apply the proceeds thereof as set lorth in this Article 10. 10,04. Lessee shall, at its own expense, promptly repair any damage and restore the Premises to at least as good condition as they were in immediately prior to occurrence 01 the fire or other casualty, If the damage is such that the proceeds of the fire and ex1ended coverage insurance referred to in Anicle 9 hereof do not exceed S5,000,00, Lessee shall restore the Premises as aforesaid and upon completion of the work Lessor shall Teleasethe net proceeds of insurance (after collection expenses, if any) to Lessee; if damage is such that the fire and extended coverage insurance proceeds referred to in Article 9 exceed $5,000.00, advances shall be made out of the insurance proceeds from time to time as work progresses to cover costs of restoration as more fully set forth in Paragraph 10.05 below. In either event, lessor shall nol be required 10 pay Lessee any sums except the net proceeds of the fire and ex1ended coverage or other insurance proceeds paid 10. Lessor. In the event such insurance proceeds are less than the total cost of such repair and restoration, lessee and shall be responsible for the payment of such deficit, and if such anticipated deficit exceeds S50,OOO.00, Lessee shall deposit with Lessor, prior to the commencement of such repairs and restoration, the amount of such anticipated deficit, to be advanced in the same manner as the insurance proceeds. Any insurance proceeds in excess of amounts required to reimburse Lessee's expenditures for such repair and restoration shall be the property 01 Lessee, and shall be paid to Lessee promptly after final completion of the reconstruction. " 10,05. Where the damage is such that the anticipaled proceeds exceed SSO,OOO.OC, plans and specifications for the work of repairing and restoring the Premises shall be prepared under the supervision of an architect selected by Lessee 12 ( and approved in wriling by Lessor. The work shall be performed by a reputable general conlractor selected by Lessee and approved in writing by Lessor, and Lessor may, at its oplion, require any contractor to furnish a performance bond and a labor and material payment bond in the full amount of the contract price, given by an independent financially responsible corporale surety, to guarantee completion of tile work free of any mechanic's or materialmen's liens, All contracts for the purchase of materials and tile performance of such restoration work shall be made in Lessee's name, and Lessee shall pay all costs and expenses of the work as and wilen they become due. Lessor shall advance to Lessee, or 10 any contractors or sub-contractors, as Lesso/may elect, witllin 15 days after receipt of Lessee's wrillen request, the amounts expended by Lessee (to the extent thaI the insurance proceeds are available for such purposes as aforesaid); provided, Ilowever, the aggregate of tile amounts so advanced shall not exceed 90% of the actual value of the labor and materials incorporated into the work at tile lime payment is requested, such "value" to be based upon the contract prices set forth in the general contract, or any applicable subcontract, as the case may be; and provided, further, that Lessor shall not be required to make such advances more often than once in any calendar month or in amounts less than $5,000. Upon completion of tile work, Lessor shall advance tile remaining cost of the work from the balance of any insurance proceeds in Lessor's possession not previously advanced to Lessee, Each request for any advance shall be subject to the approval of the Ilolder of any first mortgage on the Premises and shall be accompanied by an architect's statement certifying that the labor and materials for which payment is requested have been incorporated into the. work or delivered to the side and safely stored thereon, that the value is as estimated, and that the work has been performed in accordance with the plans and specifications. Lessor shall have the right to inspect sucll restoration as the work progresses, but any such inspection shall not be construed as a waiver of any miss.talement %mission in any of the aforesaid architect's statements. 10.06. If the holder of any mortgage on the Premises has the right to apply the aforesaid insurance proceeds on account of the mortgage debt and does in fact apply such proceeds on account of the mortgage debt, Lessor may, at its option, ei!her (i) make available to Lesse~ funds equivalent to the insurance proceeds on the terms and condilions set forth herein, or (ii) terminate this Lease by wrillen notice give to Lessee within 30 days after the aforesaid mortgage debt, and in any event within 90 days after occurrence of the damage. In the event Lessor elects to terminate this Lease pursuant to this Paragraph, such termination shall be effective on the last.<Jay of the calendar month in which such no:1ce is given. - .' AIH1ClE 11. CONDEMNATION 13 ( 11.01 In the event the Premises or any part thereof shall be condemned and taken for a public or a quasi-public use, Lessee will promptly give written notice thereof to Lessor generally describing the nature and extent of such condemnation. or laking or the nature of such proceedings and negotiations and the nature and extent of the taking which might result therefrom, as the case may be. Any award made to compensate either Lessor or Lessee for its damages or loss shall be deposited with Lessor, or with any holder of a mortgage encumbering the Premises, if required by said holder. 11.02 In the event that a portion of the Premises, but less than the entire Premises, is taken or condemned by eminent domain as aforesaid, Lessor shall have the right, at its option, to require Lessee to make such repairs as are necessary to restore the Premises as nearly as possible to the condition they were in immediately prior to. the taking. If Lessor shall make available to Lessee the net proceeds of the condemnation award (which shall be the total award less the sum of (i) any costs or expenses incurred by Lessor in collecting the award and (ii) so much of the award as may be allocated to land value) on the same terms and conditions as contained in Article 10 hereof with respect to restoration or repair of the Premises in the event of damage by fired or other casualty. If the property in question cannot be restored to a complete architectural unit, or if the taking is so extensive that the premises in question would not, after restoration, be suitable for its present use as a skating rink, the taking shall be considered a total and Paragraph 11.03 below will apply. If the holder of any mortgage on the Premises shall apply the award to the principal balance of such mortgage, Lessor shall make the election provided in Paragraph 11.03(c). 11.03 In the event of a partial taking rent shall abate equitably in proportion to the area of the Premises condemned as of the day on which the condemning authority shall take possession of the condemned property. (a) In the event the entire Premises are taken or condemned by any public or quasi-public authority exercising the right of eminent domain, this Lease shall terminate as of the date the condemning authority takes. possession of the Premises, with the same force and effect as though sucl'l date were the date fixed herein fer expiratien of the term. Tl100€ntirc amount of any award for such taking shall belong to Lessor except for moving and business interruption expenses, if any, awarded directly to Lessee, and Lessee hereby waives any other right he may have to any por1ion of such award. lol ( ( (.); , ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR LESSEE IN ANY AND ALL ACTIONS WHICH MAY BE BROUGHT FOR RENT AND/OR THE CHARGES, PA YMENTS, COSTS AND EXPENSES HEREIN RESERVED AS RENT, OR HEREIN AGREED TO BE PAID BY LESSEE AND/OR TO SIGN FOR LESSEE AN AGREEMENT FOR ENTERING IN ANY COMPETENT COURT AN AMICABLE ACTION OR ACTIONS FOR THE RECOVERY OF SUCH RENT OR eTHER CHARGES OR EXPENSES, AND IN SAID SUITS OR IN SAID AMICABLE ACTION OR ACTIONS TO CONFESS JUDGMENT AGAINST LESSEE FOR ALL OR ANY PART OF THE RENT SPECIFIED IN THIS LEASE AND THEN DUE AND UNPAID, AND OTHER CHARGES, PAYMENTS, COSTS AND EXPENSES RESERVEDAS RENT OR AGREED TO BE PAID BY LESSEE AND THEN DUE AND UNPAID, AND FOR INTEREST AND COSTS TOGETHER WITH A REASONABLE A TIORNEY'S COMMISSION. SUCH AUTHORITY SHAll NOT BE EXHAUSTED BY. ONE EXERCISE THEREOF, BUT JUDGMENT MAY BE CONFESSED AS AFORESAID FROM TIME TO TIME AS OFTEN AS ANY OF SAID RENT AND/OR OTHER CHARGES RESERVED AS RENT OR AGREED TO BE PAID BY LESSEE SHALL FALL DUE OR BE IN ARREARS. 12.13 UPON THE EXPIRATION OF THE THEN CURRENT TERM OF THIS LEASE OR THE EARLIER TERMINAl:lON OR SURRENDER HEREOF AS PROVIDED IN THIS LEASE, IT SHALL BE LAWFUL FOR ANY. ATTORNEY TO APPEAR AS ATTORNEY FOR LESSEE AS WELL AS FOR ALL PERSONS CLAIMING BY. THROUGH OR UNDER LESSEE AND TO SIGN AN AGREEMENT FOR ENTERING IN ANY COMPETENT COURT AN AMICABLE ACTION IN EJECTMENT AGAINST LESSEE AND ALL PERSONS CLAIMING BY. THROUGH OR UNDER TENANT AND THEREIN CONFESS JUDGMENT FOR THE RECOVERY. BY LANDLORD OF POSSESSION OF THE HEREIN PREMISES. FOR WHICH THIS LEASE SHALL BE ITS SUFFICIENT WARRANT. WHEREUPON, IF LESSOR SO DESIRES, A WRIT OF POSSESSION OR OTHER APPROPRIATE WRIT UNDER THE RULES OF CIVIL PROCEDURE THEN IN EFFECT MAY ISSUE FORTHWITH, WITHOUT ANY PRIOR WRIT OR PROCEEDINGS; PROVIDED. HOWEVER,IF FOR ANY REASON AFTER SUCH ACTION SHALL HAVE BEEN COMMENCED~ THE SAME SHALL BE DETERMINED AND THE POSSESSION OF THE PREMISES HEREBY DEMISED REMAIN IN OR BE RESTORED TO LESSEE, LESSOR SHALL HAVE THE RIGHT FOR THE SAME DEFAULT AND UPON ANY SUBSEQUENT OEFAUL r OR DEFAULTS. OR UPON THE TERMINATION OF THIS LEASE UNDER ANY OF THE TERMS OF THIS l.EASE TO BRING ONE OR MORE FURTHER AMICABLE ACTION OR ACTIONS AS HEREINBEFORE SET FORTH TO RECOVER POSSESSION OF THE SAID PREMISES AND CONFESS JUDGMENT FORTHE RECOVERY OF POSSESSION OF THE PREMISES J'>.S HEREINABOVE PROVIDED. 20 , ( (' shall or may incur, or which any such pariy would otherwise incur, by reason' of Lessee's failure to comply with this Lease including, bul not limited to: (i) the cost of bringing the Premises into compliance with all laws; (ii) the reasonable cost of all appropriate tests and examinations of the Prembes to confirm that the Premises has been brought into compliance with all laws; and (iii) the reasonable fees and expenses of the Indemnitee's attorneys, engineers, and consullants incurred by the Indemnflees in enforcing and confirming compliance with this Lease. (Q For the purposes of this Section, the Premises shall include the real estate covered by Ihis Lease: aI/Improvements: all personal property used in connection wilh the Premises (including that owned by Lessee); and the soil, groundwater and surface water of the Premises. (g) The covenants contained in Ihis Section shal/ surviv~ the expiration or termination of this Lease, and shall continue for so long as Lessor and its successors and assigns, and the Indemnilees, may be subj~ct 10 any expenses, obligations, penallies, fines, claims, demands, liabilities, costs, personal injuries, property damage, actions and causes of action, suits, debls, judgments, demands or charges whatsoever against which Lessee has agreed to indemnify the Indemnitees under this Lease. (h) All terms, except as otherv"ise defined herein, shall have the meanings as set forth in the Lease. For purposes hereof, Hazardous Substances shall mean (i) any "Hazardous Substance", "Pollutant" or "Contaminant" (as defined in Section 101(14) and (33) of the Comprehensive Environmental Response and Compensation and Liability Act ("CERCLA"), 42 U.S.CA Section 9601(14) and (33)) or 40 C.F.R. Part 302; (Ii) any hazardous substance, hazardous waste or solid waste, as those terms are defined in applicable state or local faw; (iii) any substances containing pelroleum as Ihal ferm is defined in Section 9001 (8) of the Resource Conservallon and Recovel)' Act, as amended, 42 U.S.CA Section 6991(8) . or 40 C.F.R. 280.1; or (iv) any other substance for which any governmental entity requires special handling in its collection, storage, trealmentor disposal. (I) Lessor represents and warrants that: (i) No not1ce has been given to Lessor and no notice has been given fo any party in the chain of title or chain of operations of the Premises, by any governmental authority or any person claiming any violation of, or requiring compliance .' 2'1 ALL THAT CEHTAIN tract or ( .rcel of L'eal ,es,tp~e situa( in ,HaJl1Pi:J.ell 'rownship, CumbeL"land County, pennsy 1 vania, being 1110re particularly bounded and described as follows: BEGINNING at a point on the western right-of~wayline of Salem Church Road (a 60 foot right-Of-way); said point of beginning being located in a south\~est direction from the c.;>nterline of the intersection of Dattersea parkway (a 50 foot right-of-w&y) and Salem Church Hoad, South 65 degt:ees 02 minutes 37 seconds West a distance of 32.12 feet to a point, said point being the . point of beginning. From the point of beginning along the northern property lines of existing Lots # 3, #4, # 6 and #8, North 69 degrees 45 minutes 45 seconds West a distance of 925.02 feet to a point; thence along the eastern property line of existing Lot #2, North 02 degrees 17 minutes 30 seconds East a distance of 77.63 feet to a point; thence along the eastern property line of Lot #1 (residual lands) North 20 degrees 15 minutes 43 seconds East a distance of 300.41 feet to a point; thence along the same North 86 degrees 27 minutes 28 seconds East a distance of 86.02 feet to a point; thence along a tangent curve, curving to the right having a radius of 630.48 feet and an arc length of 984.85 feet to a point; thence along the western right-Of-way line of the Salem Church Road, South 04 degrees 02 minutes 32 seconds East a distance of 100.11 feet to a point, said point being the point of BEGINNING. CONTAINING 8.055 acres. "\ 1! ... BEING Lot No, :lated Hay 23, the Office of .300k 9, Silver Creek Farms, l1ino.r subdivision Plan, 1996, last revised June 20, 1996, and recorded in the Recorder of Deeds-o~ Cumberland County in Plan , Page part of the same premises L. B. Smith, Inc. by its deed jated July 12, 1996 and recorded July 12, 1996 in Deed Book 142, Page 669 granted and conveyed unto Patton Recreational Properties. rOGETHER NITH the riqht to the sanitarv se"'er e:isement for the ~urpos of installatibn, USe and mainte~ance of a sanitary sewer line described as follows: ~LL .THAT CBRTAIN strip of land situate in Hampden TownShip, :umberland County, Pennsylvania, being more particularly bounded ~nd described as follows: 3EGINNIlIG at a point on the northeastern most cornt!r of Lot No. i on the ~'inal SUbdivision Plan of T~IO I.ats (1 & 6) for. I.. B. ;rnith, Inc. dated October. 17, 1988, said point also being the )oundary lint! betwt!t!n Lot No. 6 on said plan and existing Lot :0. 3; thcnct! along existing Lot ~2, (lands now at" former.1y of ronas [J. Cooke Entercsts),' South 13 degrees 101 minutes 15 ;econds East, a distanct! 0[195.00 feet to a sanitary man hole; :/lence Horth 69 degrees 45 mil1tltc:; ,15 second,; l-lest, a distance If 20.00 fet!t to a point; tht!ncc North 13 degree:; 14 minutes 15 ".econds Hest, .1 dl"t,1I1C{! of 195.00 feet to a point; thcnc'~ South .9 dcqeec:i 45 minute:; .~5 ~ccond:~ E.)~;t, <l di~;;t':~l1ce or /.o~oo feet o .1 point, being tlll:! nOI:thca"t"I'n ,,,,,,;t corner of Lot 110. 6. the oint .)l1d plilce of llEGJIWWG. .,. .". ~' .' . . Lot No. 17 'c c . .' .. .. f i ~ ALL THAT CERTAIN tract of land situate in the 'l'ownship of susquehanna, County of Dauphin, Commonwealth of Pennsylvania, being more particularly bounded and described as follows, to wit: BEGINNING at a concrete monument on the northern right-of~way of corey Road (60 feet wide) and the southwest corner of Lot No. 16 of' the Union Square Industrial Park, South 71 degrees 28 minutes 02 seconds West a distance of 82.47 feet to a point on the northern right-of-way of corey Road; thence along a curve to the left having a radius of 530.00 feet an arc length of 27.15 feet to a point on the aforementioned right-of-way line; thence by same South 68 degrees 31 minutes 57 seconds West, a distance of 278.48 feet to an iron pin at the southeast corner of Lot No. 18; thence along the eastern property line of Lot No. 18 North . 21 degrees 28 minutes 08 seconds h"est, . a distance of 565,72 feet to an iron pin; thence along lands now or formerly of Lanecor North 84 degrees 35 minutes 25 seconds East, a distance of 336.~1 feet to an iron pin; thence along lands now or formerly of Evanoff North 76 degrees 31 minutes 42 seconds East, a jistance of 89.41 feet to a concrete monument at the northwest corner of Lot No. 16; thence along the I,estern property 1 ine of Lot No. 16 South 18 degrees 31 minutes 59 seconds East, a jistanc~ of 465.76 feet to a concrete monument, said point being the place of BEGINNING. ' :ONTAINING 203,955 square feet, or 4.68 acres. 3EING Lot No. 17 on the Final Resubdivision Plan for Lots 16 and I? of Union Square Industrial Park, Phase I, recorded January 22, 1993 in the Dauphin County Recorder of Deeds Office in Plan 300k 11. Volume 5, Page 67. 3EING the same premises which Flyncor, a Pennsylvania general ~artnership. by its deed dated May 14, 1993 and recorded May 14, 1993 in Record Book 1%9, Page 117 granted and conveyed unto ?atton Recreational Properties, a Pennsylvania general ~artnership. No. 18 \LL THAT CERTAII~ tract of land situate in the Township of lusquehanna, County of Dauphin, Commonwealth of Pennsylvania, )eing more particularly bounded and described as follows to wit:' IEGINNING at a iroil pin on the northern right-of-\"ay of Corey . )rive (60 feet wide) and the soutlwest corner of Lot No. 17 of ~e Union square Industrial Park along the northern right-of~way ineef Corey Drive south 68 degrecs 31 minutcs 57 scconds wcst , distance of 285.00 feet to a point on the northern 'ight-of-way line of corey Drivc; thence along said right-of-way ine by a curve to the right having a l"adius of 25.00 Ceet an rc distance of ]9.27 feet, and having a chord bearing of north 6 degrees 18 minutes 03 seconds west a chord distance oC 35.35 eet to a point on the eastern right-oC-way lino of Katie Court 60 (eet wide): thence along the eastern right-oC-way lino of atia Court, north 21 degrees 28 ~inutcs 03 seconds west a istancc of 250.19 feet; thence aJ Dne; ,",oid rl"ht-o(-\,ay by a .' '.. :. . ';. .. .. 4. The Plaintiffs allege in their complaint that Loris Fogal sustained personal injuries as a result of a fall at the Twi.n Ponds West facility on December 27, 1996, which fall was allegedly caused by the condition of the floor. 5. At all times relevant hereto, Additional Defendant, . Abacus sports Installations, Ltd., was contracted by the Defendants to install a rubber flooring material, everroll, at the Twin Ponds West skating Center. 6. At all times relevant hereto, the agents, servants, workmen or employees of Additional Defendant were in the process of installing the everrol1 at the Twin Ponds West Skating Center. 7. On December 26, 1996, the day before the incident referred to in the Plaintiffs' Complaint, installers employed by .the Additional Defendant, were physically present at Twin Ponds for the purpose of installing the everrol1 and had actual knowledge of the conditions of the floor in the vicinity where the Plaintiff ultimately fell. 8. As of December 24, 1996, agents, servants, workmen or employees of the Additional Defendant had actual knowledge that on the weekend of December 27, 1996 a hockey tournament would be held at Twin Ponds. 9. As of December 26, 1996, the Additional Defendant's employees carried in their trucks caution tapes and barricades. 2 10. The damages and injuries referred to in th~ Plaintiffs' complaint were caused in part. or in whole by the negligence of the Additional Defendant, through the actions or omissions of its agents, servants, workmen or employees in that. they: a) failed to keep said flooring in a reasonably safe condition for its contemplated usei b) negligently erected the everroll padding; c) created the ccndition of the floor at Twin Ponds with a change in elevation which is not acceptable along a walkway surface; d) failed to properly mark the area near the edge of the foam padding while it was under construction; e) failed to cordon off from the public the area near the edge of the everroll padding; and f) failed to. add beveling to the edge of the everro11 to prevent the catching of a pedestrian's foot. 11. In the event that any liability is found to exist on the part of any of the Defendants, which liability is specifically denied, then the Additional Defendant is liable to any and all of said Defendants for contribution and/or indemnity. WHEREFORE, Defendants, Twin Ponds, Inc, P.C., D. Craig Patton, G. Reeder Patton, III, William A. Patton, Susan E. Sanders and. Scott M. Sanders, t/d/b/a Patton Recreational Properties, 3