HomeMy WebLinkAbout03-2035FOX ROTHSCHILD LLP
BY: SCOTT L. VERNICK, ESQUIRE, JEFFREY D. HUTTON, ESQUIRE
I.D. NOS.: 51547, 59071
2000 MARKET STREET, 10th FLOOR
PHILADELPHIA, PA 19103-3291
(215) 299-2000
(215) 299 2150 (fax)
ATTORNEYS FOR PLAINTIFF
VIKING COMMUNICATIONS,
INC.
VIKING COMMUNICATIONS, INC.,
Plaintiff,
V.
GRAY DRIVE, L.P.,
Defendant.
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
CIVIL ACTION- LAW/3 --
NO. - &aa.q; {dtbiL la tarr'l
JURY TRIAL DEMANDED
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set
forth in the following pages, you must take action within twenty (20) days after this Complaint
and Notice are served, by entering a written appearance personally or by attorney and filing in
writing with the Court your defenses objections to the claims set forth against you. You are
warned that if you fail to do so, the case may proceed without you and a judgment may be
entered against you by the Court without further notice for any money claimed in the Complaint
or for any other claim or relief requested by the Plaintiff. You may lose money or property or
other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Lawyer Referral
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
NOTICIA
Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas
expuestas en las paginas siguientes, uted tiene viente (20) dias de plazo al partir de la fecha de le
demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por
abogado y archivar en la corte en forma escrita sus defenses os sus objeciones a leas demandas
en contra de su persons. Sea avisado que si usted no se defiende, la corte tomara medidas y
peude entrar una order contra usted sin pervio aviso o notificacion y por cualquier queja or alivio
que es pedido en la peticion de demanda. Usted peude perder dinero os sus propriedades o ostros
derechos importantes para usted.
LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENE
ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR RAL SERVICIO,
VAYA EN PERSONA O LLAME POR TELEFONE A LA OFICINA CUYA DIRECCION SE
ENCUENTRA ESCRITA ABA JO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR
ASISTENCIA LEGAL.
Cumberland County Lawyer Referral
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
FOX ROTItSCItILD LLP
BY: SCOTT L. VERNICK, ESQUIRE, JEFFREY D. HUTTON, ESQUIRE
I.D. NOS.: 51547, 59071
2000 MARKET STREET, 10th FLOOR
PHILADELPHIA, PA 19103-3291
(215) 299-2000
(215) 299 2150 (fax)
ATTORNEYS FOR PLAINTIFF
VIKING COMMUNICATIONS,
INC.
VIKING COMMUNICATIONS, INC.,
Plaintiff,
V.
GRAY DRIVE, L.P.,
Defendant.
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
VERIFIED COMPLAINT
Plaintiff, Viking Communications, Inc. ("VCI"), by and through its attorneys, files this
complaint against defendant, Gray Drive, L.P. ("Gray Drive" or "Owner"). VCI asserts claims that
seek both injunctive relief (preliminary and permanent) and damages against the Owner for breach
of contract and intentional interference with prospective contractual relationships. In support of this
complaint, VCI avers as follows:
PARTIES
1. Plaintiff, Viking Communications, Inc. ("VCI"), is incorporated under the laws of
Delaware, with its principal place of business in Cherry Hill, New Jersey. VCI develops, manages,
and operates communications networks and provides cable television services to consumers in
interstate trade and commerce.
2. Gray Drive L.P. ("Gray Drive" or "Owner") is a Pennsylvania Limited
Partnership that maintains its principal place of business at 76 Emlyn Lane, Mechanicsburg, PA
17055. Gray Drive owns a complex of apartments commonly known as "Graham Hill" at English
Drive and Gray Street, Mechanicsburg, PA 17055.
FACTS
3. On or about August 26, 2002, the Owner and VCI entered into an Agreement for
Television Service (the "Agreement"); a true and correct copy of the Agreement is attached hereto
as Exhibit "A" and is made a part hereof by reference.
4. Under the Agreement, Owner granted to VCI the exclusive right to provide
"microwave, satellite, cable or any other type of subscription or pay television programming" to the
residents of Graham Hill. See Agreement at ¶l(a).
5. Despite this Agreement, Owner has allowed Comcast Cable Communications, Inc.
("Comcast") to begin building its own infrastructure for the purpose of providing cable television
services to the residents of Graham Hill.
6. At all times since the inception of the Agreement, VCI has performed all of its
obligations as outlined in the Agreement.
COUNT I
BREACH OF CONTRACT
7. All of thc allegations set forth in paragraphs 1 through 6, inclusive, of this complaint
arc hereby rcallcgcd as if each such allegation was set forth at length herein.
8. Thc Owner has materially breached, and continues to breach, the Agreement by
allowing Comcast to build its own infrastructure at Graham Hill despite the exclusive right to
provide "microwave, satellite, cable or any other type of subscription or pay television
programming" granted to VCI in thc Agreement.
9. Thc Owner's breach of thc Agreement prevented, and continues to prevent, VCI from
fully exercising its rights under thc Agreement.
10. As a direct and proximate result of thc unlawful and wrongful breach of the
Agreement by thc Owner, VCI has been damaged.
WHEREFORE, plaintiff Viking Communications, Inc. demands judgment on this Count
One in its favor and against defendant Gray Drive, L.P. for:
· compensatory damages;
· a preliminary and permanent injunction that enjoins the Owner from
interfering with VCI's exclusive right to provide "microwave, satellite, cable
or any other type of subscription or pay television programming" to tenants,
residents and occupants of Graham Hill;
· a preliminary and permanent injunction that enjoins the Owner from allowing
Comcast to build its own infrastructure for providing "microwave, satellite,
cable or any other type of subscription or pay television programming" at
Graham Hill;
· pre-judgment interest and post-judgment interest;
· attorney's fees and costs; and
· such other and further relief as the Court deems just and proper
consistent with this prayer for relief.
COUNT II
INTENTIONAL INTERFERENCE WITH PROSPECTIVE CONTRACTUAL RELATIONS
11. All of the allegations set forth in paragraphs 1 through 10, inclusive, of this complaint
are hereby realleged as if each such allegation was set forth at length herein.
12. Pursuant to the Agreement, VCI has the exclusive right to provide "microwave,
satellite, cable or any other type of subscription or pay television programming" at Graham Hill and,
as a result, the Owner is prohibited from allowing Comcast to build its own infrastructure for such
services at Graham Hill.
13. By permitting Comcast to build its own infrastructure at Graham Hill, Owner has
unlawfully and wrongfully prevented, and continues to prevent, VCI from fully exercising its
exclusive right under the Agreement to provide "microwave, satellite, cable or any other type of
subscription or pay television programming" to the tenants, residents and occupants at Graham Hill.
14. As a result, Owner has unlawfully and wrongfully interfered with VCI's
prospective subscription agreements for "microwave, satellite, cable or any other type of
subscription or pay television programming" with the Graham Hill tenants, residents and occupants.
15. Owner is not privileged or justified to interfere in the exclusive right of VCI to
provide "microwave, satellite, cable or any other type of subscription or pay television
programming" to the tenants, residents and occupants of Graham Hill.
16. Owner has acted, and continues to act, intentionally, maliciously and willfully
in interfering with VCI's prospective subscription agreements to provide "microwave, satellite, cable
or any other type of subscription or pay television programming" to tenants, residents and occupants
of Graham Hill.
17. As a direct and proximate result of the unlawful and wrongful interference with
VCI's prospective subscription agreements with tenants, residents and occupants of Graham Hill,
VCI has been damaged.
WHEREFORE, plaintiff Viking Communications, Inc. demands judgment on this Count
Two in its favor and against defendant Gray Drive for:
compensatory damages;
a preliminary and permanent injunction that enjoins the Owner from
interfering with VCI's exclusive fight to provide "microwave, satellite, cable
or any other type of subscription or pay television programming" to tenants,
residents and occupants of Graham Hill;
a preliminary and permanent injunction that enjoins the Owner from allowing
Comcast to build its own infrastructure for providing "microwave, satellite,
cable or any other type of subscription or pay television programming" at
Graham Hill;
pre-judgment interest and post-judgment interest;
attorney's fees and costs; and
Of Counsel
BAACH ROBINSON& LEWIS, PLLC
Jeffrey D. Robinson, Esquire
Geovette E. Washington, Esq.
One Thomas Circle, Suite 200
Washington, DC 20005
(202) 833-8900
(202) 466-5738 (fax)
such other and further relief as the Court deems just and proper
consistent with this prayer for relief.
Scott L.~e~mi~Cexnl~a''
, Esquire
Jeffrey D. Hutton, Esquire
FOX ROTHSCHILD LLP
2000 Market Street, 10th Floor
Philadelphia, PA 19103-3291
(215) 299-2000
(215) 299-2150 (fax)
Attorneys for Plaintiff,
Viking Communications, Inc.
Dated: April 28, 2003
AGREEMENT FOR TELEVI$10..N SERVI~ '
This Agreement effective this ~day of ~,..%~. ,2002 between Viking Communications
Inc. ("VCI'), with its principal place of business Iocete~ at One Make. field Dr. Suite B, Morrfsville, Pa.
19067 and Gray Drive, L.P., a Pennsylvania limited partnership ('Owner"), with its principal p~ace of
business located at 76 Emtyn Lane, Mechanicsburg, Pa ~ 7055
A. The Owner owns a certain multffamily dwelling unit property (the ~Property") l~newn as
'Graham Hill', being 18S residential dwelling units located at English Drive and Gray Gtreet,
Mechanicsburg, Pa. 17055. pursuant lo e certain de~d dated and recorded in Deed Book
at page , and as further described in Exhibit "A" attached hereto and incorporated herein by
reference;
VOl is in the business of providing to multifemily dwelling units the following:
Television programming (the "Service") through Me use of cardin equipment and
facilities for the reception and delivery of all RF, video or data signals over co-axial cable, or
filfough a ~stribution system which may consi~ of Fiber Optics, satellite dishes, antennas, earth
stations, head-end electronics and other equipmenl (file -System"); and
C. The Owner desires to make the ~ewices available to the tenants and residents and on-
site property manm3ement for the Properties (the "Residents') and VCI is Willing to provide the Services to
the Residents, subject to the terms and conditions of this Agreement.
In consideration o~ the foregoing, and the mutual promises herein, the receipt and sufficiency of
which are hereby acknawfedged, the parties. Jntendiag to be legally bound, agree as follows:
1, R.iQht of Ace. ess and O=erat~n
(a) . Right to provide Services. Owner hereby grants to VCI the exclusive right 1o
provide to file Residents microwave, satellite, cable, or any other ~jpe of subscription or
pay television procjramming.
Right of Acc;ess. The Owner grartts am:l convey~ to VCI access over, under,
across and through the Properties and each dwelling uni~ within the Properties, for the
purpose of construction, installation, operation, maintenance, t'epa|r arid removal of the
System. This ~ight of Access shelt run with the land until the end of the Term of this
Agreement and thereafter for a reasonable period, not to exceed thiffy (30) days, for the
purpose of removing the System or any pat thereof,
(c) E~luipment Room. The Owner grants to VCI the exclusive right to' occupy
certain space ('the "Equipment Room'"), which space shall be used to house such
equipment as VOl deems necessary in order to operate and maintain the System. The
room will house VCI's head-end consisting of modulators, receivers, demodulators and
any additional equipment required to operate its system. Vii<lng, at its so~e cost ancl
expense, will provide adequate heat, cooling end elec'~i~al power sewice to contro~ the
climate of the room for the operation of the equipment. 'The Owner may relocate the
Equipment Room provided that the reioeelion doe~. not adverSely affect the delivery of
Services to the Residents.
(d) Use of Existing and Future Acquired Wiring and Equipment. Owner hereby
grants VCI the right to use the following:
any coaxial cable, outlets, and equipment, now armed or hereinafter
acquired by the Owne~ (the 'E. xq~ng Systems") for the sole pul13ose of
delivering the Service. WEh the Owner's prior' written approval of any
proposed modif'=ations, the Owner fUrther grants VCI the right to alter,
modify or change any of the Existing Systems.
Viking will provide and install, at ~ own expense, all cal31es, both internally and
externally, necessary for fu]i operation of its cable television system.
(e) Cooperation o! Owner Wi~h Utilities. In the event that VCI shall need the
services of any utility serving the Property, to complete the installation of the System or to
remove, modify or alter the System during the term oi' this Agreement. the Owner shall
fully cooperate with VCI to obtain said services, at vcrs sole cost and expense. In the
event that VCI shall require the use of the Owner's maintenance staff to complete the
installation of the System, VCI shall ~rst obtain approval from and reimbuPse tlle Owner,
at the Owner's customary rate for each maintenance employee, for the time that such
maintenance employee is so a$,e, isting VCI.
_Sales andMa _rt~etinq cf_Services
(a) The Owner gran~s VCl the exclusive right to market the Services to all Reside~lt~
of the Property. Marketing and sales promotions may include, but are not limited
mailings, telephone canvassing, and perSonal solicitation of the resider~ts at the prol~erty
by professional sales personnel. VCt will obtain1 Owner's approval, which shall not
urtreasona~ly withheld, prior to any on-site marketing eotivities. All marketing caml3afgns
will be condL~Cted during normal wo~i~g hours of 9:00 AM to 9:00 PM.
(b) Marketing. Owner shall, within reason, prominently display and advertise those
Services offered by VCI in the lear~ng office Fremises and shall post all marketing
materials prm4ded by VCI for such purpose in a prominent manner within the Premises
$o as to provide maximum access and viewing by Tenanls. VCI may issue press
releases and/or publish advertisemerffs, which may include Owner's name and l/re name
of the Premises, stating the existence of this Agreement and the availability of Services at
the Premises.
In~s_talla._t ia n
(a) The installation of all equipment shall be performed in a good workmanlike
manner ~n a~ordance with industry accepted engineering practices. Owner shall provide
to VCi any inl'ormalion available to Owner, reasonal~ly requestecl by VCI as may be
Iqecessary for the proper maintenance, installation and operation of the system. The
· System shall be completely operational within 45 days days of completion of the wiring
described in paragralah ltd) above.
R~el3air and M.aintena~ce of the $3/stem
(a) Throughout the term of this Agreement, VCI, at its sole ~ost and expense, shall
Keep the Syslem in goocf artier and condition, and make all necessary repairs thereto.
VCI slqall respond to all service calls in a timely manner, tfa problem in the .System
occurs (problem is defined as 10% percent of the System or channels providec~ are
inoperable,), VCI shell complete such repairs within a 48-hour period. Ali other requests
for i~stallation, disconnecl, individual service calls, eta., shell be Scheduled for our next
available Service day. VCI's normal business hours are Monday through Friday, 9:00 AM
to 8:00 PM, and Saturdays, 9:00 AM to 4:00 PM. A 24-hour a day answering service is
available for any after hours system outages.
(b) Owner is responsible for the maintenance and repair of all home run wiring from
the outlel location within each unil to the electrical closets.
_C_omD_ensatia_n~_.nd Ri_~l~_to Audit
(a) Compensation.
VCI shall pay to the Owner (the "Compensation") ten percent (10%) of
the gross irtcome received from the Re~lents for the TetevisiOn Ser~i~e
including premium services, excluding sales, use ar~l excise taxes, late fee~,
activation and inst~ilatiDn fees, deposits, disconnection or repair charges billed to
tenants, such as interest charges, collection cos"Is, affomeys fees, court costs
and any other costs incurred to collect outstan~ling sums due (the "Revenues"}.
VC! sllall pay tile Compensation to the Owner et the end of each calendar
quarter (the "Due Date") based upon the prior calendar quarter's Revenues.
Each Compensation Payment shall be accompank~cl by a statement o! acliuity
describing, on a I'nonthly basi~, the number of subscribers, level of service and
any other charges and the dollar amot~nt collected there from,
I!. VGI shall pay Owner a one-time access fee equal to $15.00 per unit.
Ti~e acces& free shall be paid as each building comes on line in an amount
equal to the number of units contained within the building times $15.00.
(b) Right to Audit. The Owner, at its sole cost and e=pense (unless a discrepancy
of five (5%) percent or more is revealed, i~ which ease VCI agrees to bear the
reasonable ~ost~ and expenses) may audit the Revenues in order to vedfy the accuracy
of the Ceml~ensafion, provided that:
I. the Owner specifically designates the calendar years that the Owner
intends to audit, which shall be a year wilhin three (3) calendar years preceding
the d~te of the audit, but must be within the term of this Agreement;
I1. such audit wilt be conducted only during regular business hours at the
o[tice where VCI maintains the Revenue records (l~revided Revenue records are
kept within the States or Oetaware, Pennsylvania or NeW Jersey) arid only after
the Own=r has given VC! ten (lQ) business clays written notice:
III, The OWner shall deliver to VOl a copy of the results of such audit within
ten (10) business days of its receipt by Owner; and
T~rrn
IV. In the event that audil discloses an error in the Owner's favor, VCI shall
promptly pay the Owner such amount due, In the event that the audit discloses
an error in VC]'s favor, VCI shall take a cred'~ for such error against the
Compensation to be paid at the next quarter, unless no payment is (rue for the
next quarter in which event the Owner shall promptly pay VCI ~he amolJnt due.
The term ("Term") of this Agreement and Addendums/Amendments shall commence on
the date ~-~rst written above and shall continue far a period of ten (10) years f~orn July 31.
2002 and shell be automatically renewed for successive one (1} year terms, unless eitl~er
party gives written notice of its intention not to renew, af least ninety (90) days poor to the
expiration of the then current term. All references in this Agreement to the "Term" of this
Agreement shall include any renewal term hereunder unless specifically otherwise
limited.
_O _w_pershJl~ oJ~ the System
Subject to the rights of the parties in paragraph l(d) hereof, VCI shaft retain title fo the
,Systems and all of its components, which shall remain the personal property of VCi and
shall not become t~ures. Ne/ther Owner nor any lien holder or secured creditors of
Owner shall have or obtain any interest in the Systems or any component parts thereof.
Owner hereby grants to VCI the right to enter the Property to remove the Systems
(excepting the cables, wiring ancl any conduit) within thirty (30) days following the
expiration or termination of this Agreement for any reason whatsoever. Owner shall
cooperate with VCI to prevent Welt or tltegal use o1' the Systems. Upon VCI's removal of
the Gystems or any part thereof, VCI shall restore the Property as near as possible to its
prior condition. Any internal wiring installed by VCI shall be left in place at the expiration
of the contract.
VOl, at its Sole cost, and expense, shall keep the gystem insured against loss or damage
by ~e and against loss or damage by such other risks normally covered under an
"extended coverage" policy dudng the term of this Agreement in the amount deemed
I~rudent by VCl, but in any event not less than $1,000,000. VCI shall keep in force a
genera! liability policy (including coverage for products and completecl operations) with
limJt~ not less than $5,000,000 for each occurrence/aggregate. The aggregate is to be
provided on a "per location" basis. Vel shall also maintain in force and effect · workers
compensation policy as required by the Stats of Pennsylvania or such other State in
which VCl is operating. Owner, at Ils sole cost and expense, shall keep all buildings and
structures on the Properties (excluding the System) insured against loss or damage
caused by fire. VCl and Owner hereby release each other from any and all liability at
responsibility to the other or anyone claiming through or under them by way of
aubrogabon or otherwise for any loss or damage to Properties caused by fire and other
casualty which is covered by fire and extended Coverage insurance policies requirecl
under this Agreement, except no such waiver by way of sul~rogation or otherwise shall be
el'l~ective dUdng the period al' time the System is being installed, Eacl~ party shall
promptly de~iver to the other evidence of insurance upon a I~arty's wriffen request.
Indemnification
(a) During the Term of Ibis Agreement. VCI will indemnify and hold harmless ~e
Owner from and against ell losses or expenses including reasonable attorney'S fees in
connection with personal injury, death or property damage related to the installation and
operation of the System or the prov~sion for the Service. unless or to the extent such
injury or damage ia due to the fault or negligence of the Owner. its agents or employees.
(b) During the Term of th~s Agreement, the Owner will indemnify and hold harmless
VC! from all losses and expenses including reasonable attorney's fees ad$ing out cf
personal injury, death or property damage retelling to the condition or the operation of the
Property caused solely by the n~gllgent acts of the Owner, un,ess or to the extent such
injury or damage is due to the I~ault or negliger~ce of VCI. its agents or employees.
11.
12,
13.
Co. ndemnati=r~
In the event a portion of the Property is taken or condemned or a trgnsfer ~meof is made
In lieu of conclemnatlOrl, VCI shall have lhe right, at ~ op~on, t~ ~erminate ~reement.
VCI shall make i~ det~rmina~o~ a~ to whaler or not te t~rmlnate ~is A~reement a~ ~
sole-discretion based upon the economic fea~l~ of con~Ui~g the ~ce to ~at
posen of the Pro~ ~at remain after the condemnation and/or =os~ in~l~ in
moving, rebuilding, or replemng any ~om~nent pa~ of the S~t~. VCI has ~e ~ht to
re~ver for losses in a condemnation proceeding to the ~ent ~at such rec~e~ does
not diminish ~e ~ner's recover.
VCI may assign its obtigations hereunder to any assigflee that is financially responsible
and capable from an operational and technical point of view of fu~§lling the terms and
conditions of the Agreement. In order to finance certain a=pect~ of its operations, VCI
may borrow money from various lending institutlorls. VCI may r~ake a collators!
assignment of its dght, title and interest in this Agreement to such lending insl~tutions, es
VCI shall determine for such purposes.
(a) Neither party shall be deemed to have breached or to have been in default
under this Agreemeht unffi prier written notice of the default has been given to the
defaulting party and the defaulting party has ,et (~ cured the monetary default, i.e.0
nonpayment of monetary amount when due, within 5 days, or any other default within
thirty (30) days, of the receipt of such notice or, (J/) ;f the default is not reasonably capable
of being cured within the saki thirty-day period, has not thereafter pro=ceded v~flin
reasonable diligence to cure such default. Upon et breech or default hereunder, this
Agreement may be terminated by the non-defaulfin~ ~arty hereto.
(b) VCt will use reasonable diligence to preserve the continuity of the Serv[ees. but
in the event of failure or interruption of the Ser¥ices which does not rise to the level of a
material failure or interruption, aS de§ned hereafter, VCI shall not be considered in default
hereunder nor subject to any liability, penalty or payment for or as a result of any failure
or interruption including loss of revenue or use relating to times during which t11e System
may be non-operational. Material failm'e or interruption shall be defined and limited to e
failure or mtem. ip~on in the Service for a period in exces~ f'Ne (5) days and shall not
inclu~le loss of use of the System from delaY~ caused by factors beyond the reasonable
contro~ of VCI, ~nctuding, without limitation, failure of equ;pment of others (including.
without limitation, common calTier satell~'.e operators), acts of God, war, insurrection.
labor strikes, d~lays in obtaining permits required by governmental entity, power failure
and the like.
~indinq E~ect.
This Agreement and the Right of Access granted herein shall run with the Property and
shall be binding on all purchasers, their heirs, assigns and grantees. VCI may have this
Agreement recorded in the Office for th= Recorder of Deeds o~ other appropnate
governmental unit. The parties shall cooperate with any documentation and notarization
necessary to va~idly record this Memorandum of Agreement.
Notic~.~,
Any notices required or permitted to be given unde~ this Agreement sl~all be in wriling
and shall be deemed to have been g'~en if delivered 13er~enally or sent by certified mail,
postage prepaid, return receipt requested to the following addresses:
VCI'
Ernest M. Nepe, President
Viking Communications, Inc.
One Makef~eld Road
Mornsville, PA. 1g067
Owner;
Hugh Simpson, Managing Member
Gray Griffin, LLC
76 Emlyn Lane
Mechanlcsburg. Pa 17055
Any perry may alte~' tile address to which notices are to be sent by giving notice Of such
change of address in c'~nformity with the provisions of this pa~agral~ for the giving of
notice.
MisceJtaneou$
(a) Entire Agreement: This Agreement contains all the ten-ns and conditions
agreed upon the pe~lies hereto with reference tO the subject melter hereof. No changes
or modifications ih this Agreement shell be val~l unle~ in willing and signed by ail the
parties hereto. The parties hereto agree to execute ell such instruments and documents
and to take all actions as may be reasonably required in order to consummate and carry
~nto effect the transaction contemplated herein.
(b) Choice of Law. This Agreement and the rights and obl;gatio~s or the panes
hereto shall be interpreted and construed ~n accordance with the laws of the
Commonwealth of Pel~rtsylvania.
(c) Authority. Owner warrants and represents that (a) it is the owner of the
l~roperty in fee simple es of the date of this Agreement. (b) it has the comfetete right and
power to execute this Agreement, (c) it is dlJly authorized to grant VCI the rights under
this Agreement end that this Agreement does not conflict with any other agreement to
which Owner it e party. VCI warrants and represents that la) it has the complete ~ght
~nd power to execute this Agreement, (b) it is duly authorized to execute and deliver th~s
Agreement ann (c) it has the financial ability to perform its obligations under this
Agreement.
i'd) Waiver. Failure to delay of either party te enforce Its r~ghts hm'eunder shall not
operate as a waiver or modification of such right, nor off, et their aubsequellt
enforcement.
{e) Captions. The captions used In this Agreement are inserted only as a matter of
convenience and for reference and they are not to be construed es pa~t of this
Agreement and they in no way define, limit or describe the scope or intent of thts
Agreemen; or any part hereof. Such captions sl~all not affect this Agreement or any pert
hereof in any way.
Severability. In the event that any of this Agreement shall be held to be
indefinite, invalid or otherwise unenforceable, the entire Agreement shall not fail on
accoumt thereDf, bul rather the offending provision or part thereof shall De .~tricken and
the balance of the Agreement shal! continue In full force and effect.
(g) At all times, VCI shall perform in ac~o~artce w~th the laWS, rules and regulations
then in effect of the entity ~avlng juri~lic~ion thereof.
IN WITNESS WHEREOF, the parlfes hereto h;ve executed this Agreement the day and year first
above written.
ATTEST:
Gerald Kelly
ATTEST:
Gray Drive L.P.
By: G r .~~. ,,
Exhibit A-
ALL TF,_AT CERTAIN lot off land siuuane in Upper Allen Townshio,
Cumberland County, Pennsylvania, more particularly describe~ as
follows, to '~ ~ '
BEgiNniNG at a poin% ak the centerl,ne l~%terseC~icn of "Gray
Drive" (a 33 foo~ legal r~gh¢-of-way}, and "$ou~h Mark~ Street" -
S.R.0114 (an 80' richt-of-way) cmossing South Marke~ Street right-
of-way South sevent~-ei~ht degrees =hircy-eight minu~as thirty
seconds Eas: ($ 78~ 38' 30" ~) a distance of 40.~8 fee= to a
concrete monument on the eastern right-of-way line of South Market
S%reeu; ~hence alon~ lands now or formmrlv of the Core, oration of
the ~ra~iding Bisho6 uf the Church of Jes~s Chri~ of Latter Day
Saints ~he foiiowin~ courses and dls=ances:
i. Along a ounce to the ief5, having a radius off 2~.00 feet, an
arc length of 44.31 fee= ~o a concrete monument;
~. Thence along a curve, curving to the lef= having a ~adius of
270.00 f~et, an arc length of 38.93 feet to a concrete monament;
3. Thence Nor:h seven=y-three degrees twenty-~hree minuues nine
seconds East (N 73" 23' 09" S) a distance ef 223.97 feet to a
¢oncreue monument;
4. Thence along a curve, cu~;ing to ~h~ 19f= having a radius of
35.00 fee~, an arc length of ~6.73 feet to a concrete monument;
5. Thence North nineteen degrees twenty-eigh~ minu~es for~y-one
seconds Wes= (N 19: 28, 41, W) a distal%ce of 345.55 f~e~ to a
concrete monument;
6. Thence along a curve, curving to the lef~ having a radius of
25.00 fee~, an arc length of 18.54 fee~ =o a concrete monument;
7. Thence a!on~ a cu---ve, cu_~ving ~o the right havin~ a radius of
50.00 fee=, an arc length of 100.68 feet;
8. Thence North n£neueen degrees ~wenty-ei~h~ minute~ forty-On~
secondn we~ (N 19~ 28' 4!,, w) a c~$~ance of 23.07 feet;
Thence along lands now or formerly of Walter R. May, jr. the
following courses and distances=
1. Norsk ei~huy-~even de~rees forty-n/ne minutes three seconds
~ast (N 87: 49' 03" E) a distance of 75.51 feet;
2. Thence Sou~h eighty-eight de~rees ~hirty-six minutes nine
seconds East (S 88~ 36' 09" E), a distance of 193.~8 fee=:
3. Thence Sou~h fourteen degrees six minutes nine ~econds ~ast (S
14~ 06' 09" E) a distance of 288.75 f~eu;
4. Thence North flf~y-eighz degrees forty-_~ight minutes
seconds East ,~N ~8~ ~S' 56" E) a distance ~f 1~!.48 feet;
Thence along Lot "B" of ~he plan de~cr~bed herein (now a portion
of =he "Whizebrier" subdivision) ~he following courses and
distances:
· 1 South ~wen=¥-five degrees thirty-nine minu=e~ ~hree seconds
East (S 25~ 39, 0]" E) a distance of 280.51 feet;
2 Thence South forty-four degree~ =hirny-five minutes fifty-cna
seconds Eas5 ($ 44~ 35' 51" E) a distance of ?0.00 fee~;
~ Thence South zero degrees fi~y-~van m~nute$ fifty-nine
seconds Wes~ (S 00: 57, 59,' w} a d±sta~cs of 77.44 feet;
4 Thence Sou~h eight degrees six minutes thirty-two ~conds
($ 08e 06' 32" E) a distance of 75.44 lean;
~ Thenc~ South two degrees zero minutes eighueen seconds East
02~ 00' !8" E} a distance of 83.51 fee~;
6 Thence Sou~h twenty-three degree~ forty-one minu~es
seconds WeSt (S 23~ 41' 40" W) a distance of 53.56
7. Thence South sixty-one degrees thirty-nine minutes fifty
seconds wes~ {SSl~ 39' $0" w) a distance of 53.78
8. Thence Souuh ~wenty-nine degrees ~inete~n minutes ~eventeen
seconds we~t (S 29= 19' i7" w) a distance cf 101.50 feet;
~. Thence $ou5h fifteen degrees fifty-five minutes nineteen
seconds West (S 15~ 55' 19" W) a distance of 83.97 feet;
Thence along lands now or formerly of Ar!ingnon Hills Hom. e Owner's
Assoclazlon th~ following courses and distances:
1. North six,y-one degrees thirty-eigh~ manures eight secoads
Wes= {N 6~= 38' 08" w) a distance of 116.22
2. Thence aion~ a curve, curving to ~he right having a radiu~ of
326.56 feet. an arc ten, th of 1~6.40 fee~;
3. Thence along a curve, curvin~ to the l~f~ having a radius of
25.38 fe~t, an arc length of 30.58 feet;
4. Thence South zero degree~ thirty-one minutes forty-four
~econds West {$ 00: 31, 44,, W) a distance of ]~.74 fee~;
Thence crossing a Dcrtion of "Engl{s~ Driv~- (a ~0 foot riGht-of-
way) the fol!owin~'courses and d~ ' ~ - -
-~ -sra..cee.
1. North eighuy~nlne degrees uwenty~ei~ht.~inu~s sixteen seconds
west (N 89° 28' 16, W) a distance of 30.00 fee~;
2. Thence South zero degrees thirty-one minute~ foruy-four
seconds West (S 00~ 31' 44, w) a disuance of 22.22 feet;
Thence crossing Eus!ish Drive and also along lands now or formerly
cf John w ~ar~-:d~e ~iorth ei~h~v-nin~ degrees ~w~n~¥-eight
minutes sixteen sscor, ds Wes~ (N 89" 28' ~6" W) a d~suance of
145.00
Partridge - .
--g un~ fO~owz~g co%~rse~ and d~st&nce$:
~. South zero degrees tk±r~y_one minutes ~orcy-four seconds West
($ 00
2. Thence South eleven degrees fifty-one minu~es five seconds
Rasc {S ~ ~i' 05" E) a distance of 7~.9~ fee~;
Thence alon~ three (3) Cr~cts of land now- or formerly of Anthony
T. intreri, South seventy-eight degrees eight minutes £i£[y-five
s~cond~ West ($ 7~ O~' $5" w) a ~i~t~nCe of 78,20 feet; ~henc~
along lands no-~ or fo.-Ta, erly of D. Ray ~ostetter, North seven
de~rees =wentz_four minutes Chirty-three seconds Wes: (N O?· 24'
33" W) a distance of 238.20 feet; Chance along the same and also
lands now or formerly of Jame~ C. wolfe, NOrth uweive degrees
fifuy-two minu~es foray-four seconds Wezt (~ 12° 52' 44" w) a
dis~ancs of 2'40.90 fee~; thenc~ along said iand~ of Ja~es C. Wolfe
and crossin? a portion of Gray Dri-/e, South sevsnty-nine degrees
fifcy-eigh= minutes thirty-foUr ~econds West ($ 79~ 58' 34" W) a
dls=ance of 99.00 feet to a railroad spike on t~e centerline of
"Gray
D._~_ (T-662) ; thence alon~ said centerline, North ~wo
de~rees
a disuance of 94.70 feec ~o a copDer rod; thenc~ crossing Gray
Driva Notch slx=y-nine degrees thirty-three minutes foruy-three
seconds East (N 6~~ 33' 43" ~) a di=~ance of 27.09 feet; thence
along Lot "c" (ia~s now or form, erl~ of Richard E. Mowery.) the
following courses and distances:
1. South cwo degrees thirteen minutss fifty-four seconds wes~ (S
02: 13' 54" w) a di$cance of 1~.26 feel;
2. ~b. ence North sixcy-nine de~rees thirty-c~r~e minu~es forcy-
three seconds ~ast (~ ~9~ 33' 43, E} a distance of 3~4.89 fee~;
3. Th~nca NotCh sixteen degraec nine minutes foray-five seconds
west (N 16~ 09' %s" w) a distance of 130,~6 fee:;
4, Thence South sixty-eight d~qrees thirteen minutes fifty-five
seconds West (S 68. ~3' 55, w) a distance of 303_30 feet;
=. Thence Sou~h two de~ree~ thlrt~en minu~es flfuv-four seconds
Wes= {S 02= !~' ~4" W) a distance of !6.~2 feet;
Thence crossing Gray Drive South sixty-eight -~
, deg___s thirteen
minutes fifzy-fiv~ seconds Wes~ ($ 68" 13' 55" W).a distance of
~7.37 feet to a copper rc~ in the cenCer!ine of Gray Drive;
Thence a!onq the Centerline of Gray Drive the following courses
and distances:
1. North two degrees =~ir¢een minutes fifty-four seconds ~as= (N
02" 13' ~4" E) a distance of 57.00 fget Co a copper rod;
2. Thence along a curve, curving to the left, having a radius of
313.95 feet, an arc length of 139.89 feet to a copper rod;
3. Thence North twenty-three degrees seventeen ~- ~.
- m...u.es fifty-four
seco~!ds wes% (N 23~ 17' 54" w) a distance of 70 87 feet
poin~ of B~GINNING.
B~iNG LOT A on =he Three Lo~ Subdivision (Lots A, B and C) Plan
for SavOury cor!u_ora=ion, prepared by j. Michael Brii! a ASSOC.
inc., Consulting Engineers, recorded in Cumberland County Plan
Book 65, ~a~e 148.
Being Tax Parcel 42-27-i$90-00~
9AP. C EL 2
ALL ~'~AT C~RTAIN piece, parcel, 10~ or tract of land situate in
Up, er Allen T0wnsh~p' Cumberland County, Pennsylvania as sncw~ on
a Preiimlnarv/Fi~al Subdivision plan entitled "~wee Lot
Subdivision (Lot~ A, ~ and C)" for Sa~bury Corloora~ion ~ec~rded in
Plan ~ook 65, Page ~48; a~d more particularly bounded and
described a~ follows ~o wi=:
BEGinniNG at a point on the easterly dedicated right-of-way line
of Gray Drive T-662 (33 foo~ right-of-way) at the dividing line
between Lot A and Lot C az ~hown on the ~forementioned Subdivision
Plan; thence along said dividing line North sixty-eight degrees
thirteen minute~ fifty-five sscond~ ~as~ (N 6~~ i~' 55" E~, a
dls~ance ~ 303.30 fee~ ~o a ~oin~; thence continuing Sou~h
sixteen degrees nin~ minutes for=y-five seconds Eas~ (~ !60 09'
45" E) a distance of 130.46 fact co a point; =hence South six=y-
nine degrees thirty-three minutes forty-three Seconds Wes~ {$ 69~
33' 43" W), a distance of 344.89 feet to a point; thence North two
degrees thirteen minu~es ~ifty-four seconds East (N 02" lZ, 54" E)
a d~a=ance of 16.26 fee~ ~0 a point at land~ now or formerly of
Richard E. Mowe~ (Deed Bcok 28-K-573); thence a!~n~ said lands
now or form. mr!~ of Mowe_,~f North sixty-nine degrees thirty-three
mlnu~es forty-three seconds East (N 69" 33' 43" E) a distance of
314.7L feet to a point; thence North sixteen degree~ ni~e minu~es
forty-five seconds Wes~ (N 16~ 09' 4~,, w) a distance of 100.00
feet ~0 a poinu~ th~¢e South si~ty-ei~h~ degrees thirteen minutes
fifty-five seconds We~ (S 68~ 13' 55" W) a distance of 293.43
feet to a point; ~hence North ~wo ~egrees thirteen minu~e~ fifty-
four seconds East (N 02~ 13' 54- E) a distance of 16.42 feet to a
poln~ tho p!ac~- of BEGINNING.
BEING io= C on the Preliminary/Final Subdivision Plan =~ Three
Lots S~div~sions (Lots A, B and C) recorded ~- Plan ~ook 6~, Page
148.
BE!}~ the ~ame premises which Greenville Agricultural Credi~
Corp.-ora~icn. a .'
NO .... Carolina cor-oora=ion, by deed da~ed D~cemDer
17, i999, and recorded December 2%, 1999, in ~he Office of uhe
Recorder of Deeds in and for Cumberland County, Pennsylvania, in
Deed ~ook 213, ~aqe 940, gran=ed and conveyed un=o Gray Drive.
2.99 Acre Herefm~d Drive~
AL~ TF.~T CERTAIN tract or parcel of land siuuate in ~he Township
of Upper Allen, County of Cumberland, Commonw~a!~h of
,~.unSylva..=a, bounded and described as follows:
BgGib~i}~ a= a Concrete Monument se= in the eas==-~ righz-of-way
line of South Marke~ Street (L.R. 416)0 said Monumen= ~eing
ioca~ed a~ the northern end of a cu~ze co~-nec~ing =he nor=h~rn
righ=-of-way line cf Hereford Orive and ~he cas=em right-of-way
line cf South Market $~reet; thence along =he said eastern right-
of-way iln~ of Sou%h Market Strae~ by a ounce =~ the 1~? hav~ng a
radius of i,950.08 fee~, an arc lengtk of 543.04 feeu, =he chord
of which is North 4 degrees 47 minutes 08 seconds W~, 541.29
feet =0 a poin5 in the southern line of lands now or formerly of
Wal=er R. May, Jr.; ~hence along said lands now or formerly Of
Waluer R. May, Jr. Sou~h 89 degrees 21 minu~m$ 50 seconds East, a
distance of 207.66 feet =o a point; thence along lands designauad
as o~en space of Ar!in,=on Hills, Phase ii, South !9 degrees 2S
minu~es 41 seconds Eas=, a distance of 23.07 fee5 to a poin~ in
=he right-of-way line of ~nglish Drive; thence along the said
rlgha-of-way line of English Drive by a curve to the ief~ having a
radius cf 50.00 fee~, an arc length of 100.68 fee=, the chord of
which is Sou~h 4 degrees 37 minute~ 25 seconds East, 84.51 feet to
a Concrete Monument: the~C~ co~=inuin~ along the same by a c~e
~o the right kaving a radius Of 25.00 ~eez, an arc length of 18.69
feet, ~h~ chord of w~ich is South ~0 ~e~rees 53 minuue~ %1 seconds
Eas=, 18.26 f~t to a Concre=e Mon~ment~ thence con~inuing along
~%e same South 19 degrees 28 minutes 41 seconds East, a distance
o~ 3~5.5S feet to a Concre=e Monument; ghence leaving the aaid
western right-of-way line of EngliSh Drive by a cu~ze to the right
having a radius of 35.00 feet, an arc length'of 56.73 feet, the
chord of which is Sou=k 2~ de,rems ~? minutes 14 seconds Wes=,
~0.72 ~eet, =o a Concrete Monumen= seu in the northern righ=-of-
way line of Hereford Drive; thence along =ha nor:hem ri~hu-of-way
line of Hereford Drive South 73 degrmes 23 minutes 09 seconds
West, a distance of 2~$.97 feet to a Concrece Monumen=; %hence
continuin~ along the same by a curve to tRe righ~ havi~g a radius
of 270.00 feeu, an arc length of 38.93 fee~, the chord of which is
SOuth 77 degree 3~ minu=es oo mecondm West, 38.90 feet ~o a
....... ~=-~ ~hence leaving the nor=hem righ=-of-way lin~
of ~erefo=d Drive By a curve to the right having a radius of 2S.Oo
fee~, an arc length of 44.31 feet, the chord'of which is North 47
degrees 3% minutes 49 second~ West, 38.73 feet to a Concrete
Monument, =he place of BEGINNING.
CONTAINING 2.99 acres of land.
TOG~T~R wi~h the righ~ of ingress, egr~ and regress for s~Teet
PUrposes over and upon such stree=s known as English Drive and
~ereford Drivm insofar a~ they abu= ~he properu¥ herein conveyed.
BEING the same Premises which Corporation of =he Presidin~ Bishop
of the Church of Jesu~ Christ of =he Lauder Day Saints, a U~ah
Corpora=ion, by deed da=ed NOvember 12, 2001, and recorded
December 10. 200!, in =he Office of the Recorder of Deeds in aad
for Cu.."~berland County, Pennsylvania, in Deed 8ook249, Pa~e 2691
~ran~ed and conveyed unto Gray Drive, LP. - '
STATE OF .... * '~ .~,%~.~ %,~\ ~r~,..~, . .
: SS.
me, toe unDerstooD oscar, a'n~ aero,ledgeS my ss~fac~on that this pemon ~ ~e Managing
~mber of Gray Griffin. L.L.C. GeneraJ Pa~ner of Ga~ Dr~e L.P, and ~et such pe~on beiflg du~
authodZe~ ~ do $o di~ execute a~ del~r the ~r~oing i~ument for the put.see therein contained
by signing the name of the pa~nemh~ em such officer.
~ A, SO,TAR, ~TARY PUBLI~ J ~_ )
COMMONWEALTH OF PENNSYLVANIA '
· SS.
COUNTY OF SUCKS .
BE IT KNOWN that on this ~ day of ~.a~~ 2002. Ernest M, Nepa personally came
before me** the undersigned officer, and acl(ng~led~'ed tO rn~-~atlsfaction that lhis person i~ the president
of V~king Communications. loc, and that such person being dun authorized to do so did execute and
deliver the foregoing instrument for the purposes therein contained by $igr, ng in the name of the
~-or'poration as such officer.
TOTAL F-.~y
FOX ROTHSCHILD LLP
BY: SCOTT L. VERNICK, ESQUIRE, JEFFREY D. HUTTON, ESQUIRE
I.D. NOS.: 51547, 59071 ATTORNEY FOR PLAINTIFF
2000 MARKET STREET, l0th FLOOR VIKING COMMUNICATIONS,
PHII.ADELPHIA, PA 19103-3291 INC.
(215) 299-2000
(215) 299 2150 (fax)
VIKING COMMUNICATIONS, INC.,
Plaintiff,
vi.
GRAY DRIVE, L.P.,
Defendant.
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
CIVIL ACTION - LAW
NO.
JURY TRIAL DEMANDED
VERIFICATION
Ernest M. Nepa, President of Viking Communications, Inc., hereby verifies on behalf of
the Plaintiff in the instant civil action, that the facts set forth in the foregoing Complaint are true
and correct to the best of his knowledge, information and belief, and this Verification is made
subject to the penalties of 18 Pa. C.S.A.§4904, relating to unsworn falsification to authorities.
ERNEST M. NEPA
(President of Viking Communications, Inc.)
Dated:
PH1 484147vl 04/15/03
FOX ROTHSCHILD LLP
BY: SCOTT L. VERNICK, ESQUIRE, JEFFREY D. HUTTON, ESQUIRE
I.D. NOS.: 51547, 59071
2000 MARKET STREET, 10th FLOOR
PHILADELPHIA, PA 19103-3291
(215) 299-2000
(215) 299 2150 (fax)
ATTORNEYS FOR PLAINTIFF
VIKING COMMUNICATIONS,
INC.
VIKING COMMUNICATIONS, INC., :
Plaintiff, :
GRAY DRIVE, L.P., :
Defendant. :
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
CIVIL ACTION - LAW
NO. 03-2035 CIVIL TERM
PETITION FOR PRELIMINARY INJUNCTION
OF PLAINTIFF VIKING COMMUNICATIONS~ INC.
Plaintiff, Viking Communications, Inc. ("VCI"), by and through its undersigned
attorneys, hereby petitions this Court for a preliminary injunction, and in support thereof, states
as follows:
1. On April 17, 2003, VCI instituted these proceedings by filing a verified complaint
that alleged claims for breach of contract and intentional interference with prospective
contractual relations against defendant, Gray Drive L.P. ("Gray Drive"). A true and correct copy
of the verified complaint, with its Exhibit "A", is attached as Exhibit "1" and made a part hereof
by reference.
2. As more fully set forth in the verified complaint, VCI is in the business of
developing, managing, and operating communications networks, and providing cable television
services to consumers in interstate trade and commerce. See Complaint at ¶1; Affidavit of Ernest
M. Nepa ("Nepa Affidavit"), attached as Exhibit "2" and made a part hereof by reference, at ¶2.
3. VCI offers to existing and prospective customers multiple channels of video
programming in analog or digital format. Individual channels are bundled together and sold as
packages or "tiers" of programming (for example, basic, extended basic, premium and pay-per-
view). Individual customers pay VCI subscription fees, typically on a monthly basis, depending
on the tier of programming desired by the customer. See Nepa Affidavit at ¶3.
4. VCI offers its cable television services to residents living in multiple dwelling
unit ("MDU") communities such as private condominiums, apartment complexes and residential
developments. See Nepa Affidavit at ¶4.
5. As a matter of general practice, in order to market its products to residents of an
MDU community, VCI contracts with the owner or manager of the MDU community for
permission to market and operate a video programming system iin the community. Once it
contracts with the owner or manager, VCI then constructs, installs, and maintains the
infrastructure and equipment (for example, pedestals, boxes, stu'ouds, amplifiers, locks and
wires) necessary to receive and transmit programming signals throughout the MDU community.
All the while, VCI markets its cable television services to tenants, residents and occupants at the
MDU community. See Nepa Affidavit at ¶5.
6. Gray Drive, L.P. ("Gray Drive") owns a complex of apartments commonly
known as "Graham Hill" at English Drive and Gray Street, Mechanicsburg, PA 17055. See
Complaint at ¶2; Nepa Affidavit at ¶6. The Graham Hill complex is still under construction.
2
7. On or about August 26, 2002, Gray Drive and VCI entered into an Agreement for
Television Service (the "Agreement"); a true and correct copy ot?the Agreement is attached to
the verified complaint as Exhibit "A" and is made a part hereof by reference. See Complaint at
¶3; Nepa Affidavit at ¶7.
8. Under the Agreement, Gray Drive granted to VCI the exclusive right to provide
"microwave, satellite, cable or any other type of subscription or pay television programming" to
the residents of Graham Hill. See Agreement at ~[l(a); Complaint at ¶4; Nepa Affidavit at ¶8.
9. In direct violation of this Agreement, Gray Driw~ has allowed Comcast Cable
Communications, Inc. ("Comcast") to begin building its own infrastructure for the purpose of
providing cable television services to the residents of Graham Hill. See Complaint at ¶5; Nepa
Affidavit at ¶9.
10. VCI competes with Comcast for cable television, customers residing in MDU
communities. See Nepa Affidavit at ~ll0.
11. At all times since the inception of the Agreement, VCI has performed all of its
obligations as outlined in the Agreement. See Complaint at ¶6; Nepa Affidavit at ¶11.
12. On April 1, 2003, VCI sent a letter to Gray Drive that stated that its unlawful and
wrongful conduct constituted a material breach of the Agreement; in the letter, VCI also
demanded that Gray Drive cure its breach. A true and correct copy of the letter is attached as
Exhibit "3" and made a part hereof by reference. In order to "cure" its breach, VCI required
Gray Drive to (1) advise Comcast that it could no longer access Graham Hill to install an
infrastructure for providing cable television services, and to respond to any attempt by Comcast
to gain such access; and (2) arrange for the removal of any and all wiring that Comcast had
already installed. Gray Drive has failed to take any of these such actions to cure its breach of the
Agreement.
13. Gray Drive materially breached and continues to breach the Agreement by
allowing Comcast to build its own infrastructure at Graham Hill despite the exclusive right to
provide services granted to VCI in the Agreement. See Complaint at ¶8.
14. Gray Drive's breach of the Agreement prevented, and continues to prevent, VCI
from exercising its rights under the Agreement. See Complaint at ¶9.
15. By permitting Comcast to build its own infrastructure at Graham Hill, Gray
Drive has unlawfully and wrongfully prevented, and continues to prevent, VCI from fully
exercising its exclusive right under the Agreement to provide "microwave, satellite, cable or any
other type of subscription or pay television programming" to tenants, residents and occupants at
Graham Hill. See Complaint at ¶13.
16. As a result, Gray Drive has unlawfully and wro:agfully interfered with VCI's
prospective subscription agreements for "microwave, satellite, cable or any other type of
subscription or pay television programming" with the tenants, residents and occupants of
Graham Hill. See Complaint at ¶14.
17. Gray Drive is not privileged or justified in interfering with the exclusive right of
VCI to provide "microwave, satellite, cable or any other type of subscription or pay television
programming" to tenants, residents and occupants of Graham Hill. See Complaint at ¶15.
18. As a result of Gray Drive's unlawful and wrongful conduct in permitting
Comcast to build its own infrastructure for providing cable tele¥ision services at Graham Hill, as
well as Gary Drive's unlawful and wrongful interference with VCI's prospective subscription
agreements with tenants, residents and occupants of Graham Hill, VCI has been, and will
4
continue to be, prevented from fully exercising and enjoying its fights under the Agreement to be
the exclusive provider of "microwave, satellite, cable or any other type of subscription or pay
television programming" at Graham Hill. See Nepa Affidavit at ~[18.
19. As a result of Gray Drive's unlawful and wrongful conduct in permitting
Comcast to build its own infrastructure for providing cable television services at Graham Hill, as
well as Gary Drive's unlawful and wrongful interference with VCI's prospective subscription
agreements with tenants, residents and occupants of Graham Hill, VCI has suffered, and will
continue to suffer, a severe disruption to its business because Gray Drive has permitted Comcast
- a direct competitor of VCI - to exercise and benefit from the same or similar rights that have
been granted exclusively to VCI under the Agreement. See Nepa Affidavit at ¶19.
20. VCI's exclusive right to provide cable television services at Graham Hill, as well
as its prospective subscription agreements with Graham Hill's tenants, residents and occupants,
provide VCI with (i) a business opportunity to expand the scope of its MDU customer base, and
(ii) a distinct market advantage over its competitors (including, 'but not limited to, Comcast) who
market the same or similar services to the owners of MDU communities. As a result of Gray
Drive's unlawful and wrongful conduct in permitting Comcast to build its own infrastructure for
providing cable television services at Graham Hill, as well as its unlawful and wrongful
interference with VCI's prospective subscription agreements with tenants, residents and
occupants of Graham Hill, VCI has and will continue to lose this business opportunity and
unique market advantage. See Nepa Affidavit at ¶20-21.
21. As a result of Gray Drive's unlawful and wrongful conduct in permitting
Comcast to build its own infrastructure for providing cable television services at Graham Hill, as
well as its unlawful and wrongful interference with VCI's prospective subscription agreements
with tenants, residents and occupants of Graham Hill, VCI stands to lose subscribers who will
enter into subscription agreements with Comcast. The exact number of subscription agreements,
their duration, the specific package or tier of cable television service that would have been
purchased by each tenant, resident and occupant, and the charges and fees that would have been
paid to VCI under these subscription agreements are impossible to measure or estimate --
especially in light of the ten-year term of the Agreement (see Agreement at ¶7). As a result, the
monetary losses that VCI will suffer as a result of Gray Drive's unlawful and wrongful conduct
are difficult, if not impossible, to calculate with reasonable certainty. See Nepa Affidavit at ~[22.
22. Gray Drive will not suffer any appreciable injuxy if the requested injunction is
granted because the status quo will be maintained and Gray DriYe will merely be restrained from
taking advantage of its unlawful and wrongful acts.
23. VCI is likely to succeed on the merits of its claims against Gray Drive.
24. Gray Drive's unlawful and wrongful acts are actionable and VCI's right to relief
is clear.
25. VCI has no adequate remedy at law.
WHEREFORE, plaintiff Viking Communications, Inc. requests that this Court enter a
preliminary injunction:
enjoining Gray Drive from interfering with VCI's exclusive
right to provide microwave, satellite, cable or any
other type of subscription or pay television programming to tenants,
residents and occupants of Graham Hill;
enjoining Gray Drive from interfering with VCI's prospective
subscription agreements to provide microwave, satellite,
cable or any other type of subscription or pay television programming
to the tenants, residents and occupants of Graham Hill;
6
enjoining Gray Drive from allowing Comcast to
build its own infrastructure for providing xnicrowave,
satellite, cable or any other type of subscription or pay television
programming at Graham Hill; and
such other and further relief as the Court deems just and
proper consistent with this prayer for relief.
Respectfully submitted,
Of Counsel:
BAACH ROBINSON & LEV, aS, PLLC
Jeffrey D. Robinson, Esquire
Geovette E. Washington, Esq.
One Thomas Circle, Suite 200
Washington, DC 20005
(202) 833-8900
(202) 466-5738 (fax)
Esquire
Jeffrey D. Hutton, Esquire
FOX ROTHSCHILD LLP
2000 Market Street, 10th Floor
Philadelphia, PA 19103-3291
(215) 299-2000
(215) 299-:;150 (fax)
Attorneys for Plaintiff,
Viking Communications, Inc.
Dated: April 30, 2003
7
SHERIFF'S RETURN - REGULAR
CASE NO: 2003-02035 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
VIKING COMMUNICATIONS INC
GRAY DRIVE LP
VS
ROBERT BITNER , Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
the
GRAY DRIVE LP
DEFENDANT ,
at 76 EMLYN LANE
at 1851:00 HOURS, on the 30th day of April , 2003
MECHANICSBURG, PA 17055
by handing to
GRAY DRIVE
a true and attested copy of COMPLAINT & NOTICE
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
18 00
8 28
00
10 00
00
36 28
Sworn and Subscribed to before
me this % ~ day of
~ ~ . A.D.
7- / ~rothonotarl~ ~ ~
So Answers:
R. Thomas Kline
o5/ol/2oo3
FOX ROTHSCHILD O'BRIEN FRANKEL
Deputy Sheriff
HAY 0 2 2003
FOX ROTHSCHILD LLP
BY: SCOTT L. VERNICK, ESQUIRE, JEFFREY D. HUTTON, ESQUIRE
I.D. NOS.: 51547, 59071
2000 MARKET STREET, l0th FLOOR
PHILADELPHIA, PA 19103-3291
(215) 299-2000
(215) 299 2150 (fax)
ATTORNEYS FOR PLAINTIFF
VIKING COMMUNICATIONS,
INC.
VIKING COMMUNICATIONS, INC.,
Plaintiff,
V.
GRAY DRIVE, L.P.,
Defendant.
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
CIVIL ACTION - LAW
NO. 03-2035 CIVIL TERM
ORDER FOR HEARING
AND NOW, this ~0~ day of ~"~~. ,2003, upon consideration
of the petition for preliminary injunction of plaintiff, Viking Communications, Inc. ("VCI"), it is
hereby ORDERED and DECREED that a hearing upon the petition for preliminary injunction is
SCHEDULED for ~"~4~)~ cvQ ~ ~2003 atA.'09rm. in Courtroom o~ of the
Cumberland County Courthouse, Carlisle, Pennsylvania.
Jo
occupants of the complex of apartments commonly known as "Graham Hill" located at English
Drive and Gray Street, Mechanicsburg, Pennsylvania 17055, which harm cannot be adequately
compensated by money damages; (2) VCI has a clear fight to relief on its claims against Gray
Drive for breach of contract and intentional interference with prospective contractual relations;
(3) greater injury will result by refusing to issue the injunction than by granting it; and (4) a
preliminary injunction will restore the parties to the status quo as it existed prior to the wrongful
conduct, it is hereby ORDERED, ADJUDGED and DECREED that VCI's petition for
preliminary injunction is GRANTED.
It is further ORDERED as follows:
(a) Gray Drive is enjoined preliminarily from allowing Comcast to build its own
infrastructure for providing microwave, satellite, cable or any other type of
subscription or pay programming to tenants, residents and occupants at Graham
Hill; and
(b) Gray Drive is enjoined preliminarily from interfering with VCI's exclusive right
to provide and market microwave, satellite, cable or any other type of subscription
or pay television programming to tenants, residents and occupants of Graham
Hill.
This Order of Court shall remain in full force and effect until such time as the final
adjudication of this matter.
BY THE COURT:
Jo
FOX ROTHSCHILD LLP
BY: SCOTT L. VERNICK, ESQUIRE, JEFFREY D. HUTTON, ESQUIRE
I.D. NOS.: 51547, 59071
2000 MARKET STREET, l0th FLOOR
PHILADELPHIA, PA 19103-3291
(215) 299-2000
(215) 299 2150 (fax)
ATTORNEYS FOR PLAINTIFF
VIKING COMMUNICATIONS,
INC.
VIKING COMMUNICATIONS, INC.,
Plaintiff,
V.
GRAY DRIVE, L.P.,
Defendant.
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
CIVIL ACTION - LAW
NO. 03-2035 CIVIL TERM
PETITION FOR PRELIMINARY INJUNCTION
OF PLAINTIFF VIKING COMMUNICATIONS~ INC.
Plaintiff, Viking Communications, Inc. ("VCI"), by and through its undersigned
attorneys, hereby petitions this Court for a preliminary injunction, and in support thereof, states
as follows:
1. On April 17, 2003, VCI instituted these proceedings by filing a verified complaint
that alleged claims for breach of contract and intentional interference with prospective
contractual relations against defendant, Gray Drive L.P. ("Gray Drive"). A true and correct copy
of the verified complaint, with its Exhibit "A", is attached as Exhibit "1" and made a part hereof
by reference.
2. As more fully set forth in the verified complaint, VCI is in the business of
developing, managing, and operating communications networks, and providing cable television
services to consumers in interstate trade and commerce. See Complaint at ¶1; Affidavit of Ernest
M. Nepa ("Nepa Affidavit"), attached as Exhibit "2" and made a part hereof by reference, at ~12.
3. VCI offers to existing and prospective customers multiple channels of video
programming in analog or digital format. Individual channels are bundled together and sold as
packages or "tiers" of programming (for example, basic, extended basic, premium and pay-per-
view). Individual customers pay VCI subscription fees, typically on a monthly basis, depending
on the tier of programming desired by the customer. See Nepa Affidavit at ¶3.
4. VCI offers its cable television services to residents living in multiple dwelling
unit ("MDU") communities such as private condominiums, apartment complexes and residential
developments. See Nepa Affidavit at ~14.
5. As a matter of general practice, in order to market its products to residents of an
MDU community, VCI contracts with the owner or manager of the MDU community for
permission to market and operate a video programming system in the community. Once it
contracts with the owner or manager, VCI then constructs, installs, and maintains the
infrastructure and equipment (for example, pedestals, boxes, shrouds, amplifiers, locks and
wires) necessary to receive and transmit programming signals throughout the MDU community.
All the while, VCI markets its cable television services to tenants, residents and occupants at the
MDU community. See Nepa Affidavit at ¶5.
6. Gray Drive, L.P. ("Gray Drive") owns a complex of apartments commonly
known as "Graham Hill" at English Drive and Gray Street, Mechanicsburg, PA 17055. See
Complaint at ¶2; Nepa Affidavit at ¶6. The Graham Hill complex is still under construction.
2
7. On or about August 26, 2002, Gray Drive and VCI entered into an Agreement for
Television Service (the "Agreement"); a true and correct copy of the Agreement is attached to
the verified complaint as Exhibit "A" and is made a part hereof by reference. See Complaint at
¶3; Nepa Affidavit at ¶7.
8. Under the Agreement, Gray Drive granted to VCI the exclusive right to provide
"microwave, satellite, cable or any other type of subscription or pay television programming" to
the residents of Graham Hill. See Agreement at ¶l(a); Complaint at ¶4; Nepa Affidavit at ¶8.
9. In direct violation of this Agreement, Gray Drive has allowed Comcast Cable
Communications, Inc. ("Comcast") to begin building its own infrastructure for the purpose of
providing cable television services to the residents of Graham Hill. See Complaint at ¶5; Nepa
Affidavit at ¶9.
10. VCI competes with Comcast for cable television customers residing in MDU
communities. See Nepa Affidavit at ¶10.
11. At all times since the inception of the Agreement, VCI has performed all of its
obligations as outlined in the Agreement. See Complaint at ¶6; Nepa Affidavit at ¶11.
12. On April 1, 2003, VCI sent a letter to Gray Drive that stated that its unlawful and
wrongful conduct constituted a material breach of the Agreement; in the letter, VCI also
demanded that Gray Drive cure its breach. A true and correct copy of the letter is attached as
Exhibit "3" and made a part hereof by reference. In order to "cure" its breach, VCI required
Gray Drive to (1) advise Comcast that it could no longer access Graham Hill to install an
infi'astmcture for providing cable television services, and to respond to any attempt by Comcast
to gain such access; and (2) arrange for the removal of any and all wiring that Comcast had
already installed. Gray Drive has failed to take any of these such actions to cure its breach of the
Agreement.
13. Gray Drive materially breached and continues to breach the Agreement by
allowing Comcast to build its own infi'astmcture at Graham Hill despite the exclusive right to
provide services granted to VCI in the Agreement. See Complaint at ¶8.
14. Gray Drive's breach of the Agreement prevented, and continues to prevent, VCI
from exercising its rights under the Agreement. See Complaint at ¶9.
15. By permitting Comcast to build its own infrastructure at Graham Hill, Gray
Drive has unlawfully and wrongfully prevented, and continues to prevent, VCI from fully
exercising its exclusive right under the Agreement to provide "microwave, satellite, cable or any
other type of subscription or pay television programming" to tenants, residents and occupants at
Graham Hill. See Complaint at ¶13.
16. As a result, Gray Drive has unlawfully and wrongfully interfered with VCI's
prospective subscription agreements for "microwave, satellite, cable or any other type of
subscription or pay television programming" with the tenants, residents and occupants of
Graham Hill. See Complaint at ¶14.
17. Gray Drive is not privileged or justified in interfering with the exclusive right of
VCI to provide "microwave, satellite, cable or any other type of subscription or pay television
programming" to tenants, residents and occupants of Graham Hill. See Complaint at ¶15.
18. As a result of Gray Drive's unlawful and wrongful conduct in permitting
Comcast to build its own infrastructure for providing cable television services at Graham Hill, as
well as Gary Drive's unlawful and wrongful interference with VCI's prospective subscription
agreements with tenants, residents and occupants of Graham Hill, VCI has been, and will
4
continue to be, prevented from fully exercising and enjoying its rights under the Agreement to be
the exclusive provider of "microwave, satellite, cable or any other type of subscription or pay
television programming" at Graham Hill. See Nepa Affidavit at ¶18.
19. As a result of Gray Drive's unlawful and wrongful conduct in permitting
Comcast to build its own infrastructure for providing cable television services at Graham Hill, as
well as Gary Drive's unlawful and wrongful interference with VCI's prospective subscription
agreements with tenants, residents and occupants of Graham Hill, VCI has suffered, and will
continue to suffer, a severe disruption to its business because Gray Drive has permitted Comcast
- a direct competitor of VCI - to exercise and benefit from the same or similar rights that have
been granted exclusively to VCI under the Agreement. See Nepa Affidavit at ¶19.
20. VCI's exclusive right to provide cable television services at Graham Hill, as well
as its prospective subscription agreements with Graham Hill's tenants, residents and occupants,
provide VCI with (i) a business opportunity to expand the scope of its MDU customer base, and
(ii) a distinct market advantage over its competitors (including, but not limited to, Comcast) who
market the same or similar services to the owners of MDU communities. As a result of Gray
Drive's unlawful and wrongful conduct in permitting Comcast to build its own infrastructure for
providing cable television services at Graham Hill, as well as its unlawful and wrongful
interference with VCI's prospective subscription agreements with tenants, residents and
occupants of Graham Hill, VCI has and will continue to lose this business opportunity and
unique market advantage. See Nepa Affidavit at ~20-21.
21. As a result of Gray Drive's unlawful and wrongful conduct in permitting
Comcast to build its own infrastructure for providing cable television services at Graham Hill, as
well as its unlawful and wrongful interference with VCI's prospective subscription agreements
5
with tenants, residents and occupants of Graham Hill, VCI stands to lose subscribers who will
enter into subscription agreements with Comcast. The exact number of subscription agreements,
their duration, the specific package or tier of cable television service that would have been
purchased by each tenant, resident and occupant, and the charges and fees that would have been
paid to VCI under these subscription agreements are impossible to measure or estimate --
especially in light of the ten-year term of the Agreement (see Agreement at ¶7). As a result, the
monetary losses that VCI will suffer as a result of Gray Drive's unlawful and wrongful conduct
are difficult, if not impossible, to calculate with reasonable certainty. See Nepa Affidavit at ¶22.
22. Gray Drive will not suffer any appreciable injury if the requested injunction is
granted because the status quo will be maintained and Gray Drive will merely be restrained from
taking advantage of its unlawful and wrongful acts.
23.
24.
is clear.
25.
VCI is likely to succeed on the merits of its claims against Gray Drive.
Gray Drive's unlawful and wrongful acts are actionable and VCI's right to relief
VCI has no adequate remedy at law.
WHEREFORE, plaintiff Viking Communications, Inc. requests that this Court enter a
preliminary injunction:
enjoining Gray Drive from interfering with VCI's exclusive
right to provide microwave, satellite, cable or any
other type of subscription or pay television programming to tenants,
residents and occupants of Graham Hill;
enjoining Gray Drive from interfering with VCI's prospective
subscription agreements to provide microwave, satellite,
cable or any other type of subscription or pay television programming
to the tenants, residents and occupants of Graham Hill;
6
enjoining Gray D '
_~'~u~te, Cable ^. _~mCtUre for m- ~ .~'.Omcast to
programm, u, any oth~-- ,-rov~din~._.
g at Graham Hill. ~_°.£subscription _ ave,
· ,ma urpaY television
Such other .and further relie£as
Proper COnsistent with a_. the Co,,.,- ~
..... ,,,,s Pr~yer ror~.eli'"'~eems Just ~,$
Of Counsel:
~e£fi-ey D. Robins .
~eovette E ~a~ ~n,
.?ne Thom '~ ~'n~on, Esa
W~hin~' ao ~lrcle, Sui,- ~ ~'
5~z) 833.890n zoO05
(~0~ 4~.s7~~ r~ ~
A~Orneys for Pi ' ·
Vi~ Cn~ a~ntit~
~ ~m~unie~ti°ns~
~ated: ~PH1 30~ 2003
PLLc
Respectfully submitted,
~OX RoT
rt~iladelphia ~,~e~[, lOth Floor
(215) 299.2~~ ~103-3291
(215) 299-2150 (f~)
FOX ROTHSCHILD LLP
BY: SCOTT L. VERNICK, ESQUIRE, JEFFREY D. HUTTON, ESQUIRE
I.D. NOS.: 51547, 59071 ATTORNEYS FOR
2000 MARKET STREET, 10th FLOOR VIKING COMMUNIC~IO][~TIS,
PHILADELPHIA, PA 19103-3291 INC.
(215) 299-2000
(215) 299 2150 (fax)
VIKING COMMUNICATIONS, INC.,
Plaintiff,
V.
GRAY DRIVE, L.P.,
Defendant.
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
CIVIL ACTION- LA~.
NO. 03 - ,2~3S
JURY T~ DEM~DED
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set
forth in the following pages, you must take action within twenty (20) days after this Complaint
and Notice are served, by entering a written appearance personally or by attorney and filing in
writing with the Court your defenses objections to the claims set forth against you. You are
warned that if you fail to do so, the case may proceed without you and a judgment may be
entered against you by the Court without further notice for any money claimed in the Complaint
or for any other claim or relief requested by the Plaintiff. You may lose money or property or
other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Lawyer Referral
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
NOTICIA
Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas
expuestas en las paginas siguientes, uted tiene viente (20) dias de plazo al partir de la fecha de le
demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por
abogado y archivar en la corte en forma escrita sus defenses os sus objeciones a leas demandas
en Contra de su persons. Sea avisado que si usted no se defiende, la corte tomara medidas y
peude entrar una order contra usted sin pervio aviso o notificacion y por cualquier queja or alivio
que es pedido en la peticion de demanda. Usted peude perder dinero os sus propriedades o ostros
derechos importantes para usted.
LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENE
ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR RAL SERVICIO,
VAYA EN PERSONA O LLAME POR TELEFONE A LA OFICINA CUYA DIRECCION SE
ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR
ASISTENCIA LEGAL.
Cumberland County Lawyer Referral
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
FOX ROTHSCHILD LLP
BY: SCOTT L. VERN~CK, ESQ--, JEFFREY D. HUTTON, ESQUIRE
I.D. NOS.: 51547, 59071
2000 MARKET STREET, 10t~ FLOOR
PHILADELPHIA, PA 19103-3291
(215) 299-2000
(215) 299 2150 (fax)
ATTORNEYS FOR PLAINTIFF
VIKING COMMUNICATIONS,
INC.
VIKING COMMUNICATIONS, INC.,
Plaintiff,
V.
GRAY DRIVE, L.P.,
Defendant.
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
CIVIL ACTION - LAW
NO.
JURY TRIAL DEMANDED
VERIFIED COMPLAINT
Plaintiff, Viking Communications, Inc. ("VCI"), by and through its attomeys, files this
complaint against defendant, Gray Drive, L.P. ("Gray Drive" or "Owner"). VCI asserts claims that
seek both injunctive relief (preliminary and permanent) and damages against the Owner for breach
of contract and intentional interference with prospective contractual relationships. In support of this
complaint, VCI avers as follows:
PARTIES
1. Plaintiff, Viking Communications, Inc. ("VCI"), is incorporated under the laws of
Delaware, with its principal place of business in Cherry Hill, New Jersey. VCI develops, manages,
and operates communications networks and provides cable television services to consumers in
interstate trade and commerce.
2. Gray Drive L.P. ("Gray Drive" or "Owner") is a Pennsylvania Limited
Partnership that maintains its principal place of business at 76 Emlyn Lane, Mechanicsburg, PA
17055. Gray Drive owns a complex of apartments commonly known as "Graham Hill" at English
Drive and Gray Street, Mechanicsburg, PA 17055.
FACTS
3. On or about August 26, 2002, the Owner and VCI entered into an Agreement for
Television Service (the "Agreement"); a true and correct copy of the Agreement is attached hereto
as Exhibit "A" and is made a part hereof by reference.
4. Under the Agreement, Owner granted to VCI the exclusive right to provide
"microwave, satellite, cable or any other type of subscription or pay television programming" to the
residents of Graham Hill. See. Agreement at ~[1 (a).
5. Despite this Agreement, Owner has allowed Comcast Cable Communications, Inc.
("Comcast") to begin building its own infi'astmcture for the purpose of providing cable television
services to the residents of Graham Hill.
6. At all times since the inception of the Agreement, VCI has performed all of its
obligations as outlined in the Agreement.
COUNT I
BREACH OF CONTRACT
7. All of the allegations set forth in paragraphs 1 through 6, inclusive, of this complaint
are hereby realleged as if each such allegation was set forth at length herein.
8, The Owner has materially breached, and continues to breach, the Agreement by
allowing Comcast to build its own infrastructure at Graham Hill despite the exclusive fight to
provide "microwave, satellite, cable or any other type of subscription or pay television
programming" granted to VCI in the Agreement.
9. The Owner's breach of the Agreement prevented, and continues to prevent, VCI from
fully exercising its rights under the Agreement.
10. As a direct and proximate result of the unlawful and wrongful breach of the
Agreement by the Owner, VCI has been damaged.
WHEREFORE, plaintiff Viking Communications, Inc. demands judgment on this Count
One in its favor and against defendant Gray Drive, L.P. for:
· compensatory damages;
· a preliminary and permanent injunction that enjoins the Owner from
interfering with VCI's exclusive right to provide "microwave, satellite, cable
or any other type of subscription or pay television programming" to tenants,
residents and occupants of Graham Hill;
· a preliminary and permanent injunction that enjoins the Owner from allowing
Comcast to build its own infrastructure for providing "microwave, satellite,
cable or any other type of subscription or pay television programming" at
Graham Hill;
· pre-judgment interest and post-judgment interest;
· attomey's fees and costs; and
· such other and further relief as the Court deems just and proper
consistent with this prayer for relief.
COUNT 1I
INTENTIONAL INTERFERENCE WITH PROSPECTIVE CONTRACTUAL RELATIONR
11. All of the allegations set forth in paragraphs 1 through 10, inclusive, of this complaint
are hereby realleged as if each such allegation was set forth at length herein.
12. Pursuant to the Agreement, VCI has the exclusive fight to provide "microwave,
satellite, cable or any other type of subscription or pay television programming" at Graham Hill and,
as a result, the Owner is prohibited from allowing Comcast to build its own infrastructure for such
services at Graham Hill.
13. By permitting Comcast to build its own infrastructm-e at Graham Hill, Owner has
unlawfully and wrongfully prevented, and continues to prevent, VCI from fully exercising its
exclusive right under the Agreement to provide "microwave, satellite, cable or any other type of
subscription or pay television programming" to the tenants, residents and occupants at Graham Hill.
14. As a result, Owner has unlawfully and wrongfully interfered with VCI's
prospective subscription agreements for "microwave, satellite, cable or any other type of
subscription or pay television programming" with the Graham Hill tenants, residents and occupants.
15. Owner is not privileged or justified to interfere in the exclusive right of VCI to
provide "microwave, satellite, cable or any other type of subscription or pay television
programming" to the tenants, residents and occupants of Graham Hill.
16. Owner has acted, and continues to act, intentionally, maliciously and willfully
in interfering with VCI's prospective subscription agreements to provide "microwave, satellite, cable
or any other type of subscription or pay television programming" to tenants, residents and occupants
of Graham Hill.
17. As a direct and proximate result of the unlawful and wrongful interference with
VCI's prospective subscription agreements with tenants, residents and occupants of Graham Hill,
VCI has been damaged.
WHEREFORE, plaintiff Viking Communications, Inc. demands judgment on this Count
Two in its favor and against defendant Gray Drive for:
· compensatory damages;
a preliminary and permanent injunction that enjoins the Owner from
interfering with VCI's exclusive right to provide "microwave, satellite, cable
or any other type of subscription or pay television programming" to tenants,
residents and occupants of Graham Hill;
a preliminary and permanent injunction that enjoins the Owner from allowing
Comcast to build its own infrastructure for providing "microwave, satellite,
cable or any other type of subscription or pay television programming" at
Graham Hill;
pre-judgment interest and post-judgment interest;
attomey's fees and costs; and
Of Counsel
BAACH ROBINSON & L~.wIs, PLLC
Jeffrey D. Robinson, Esquire
Geovette E. Washington, Esq.
One Thomas Circle, Suite 200
Washington, DC 20005
(202) 833-8900
(202) 466-5738 (fax)
such other and further relief as the Court deems just and proper
consistent with this prayer for relief.
Scott L.kll/ernick, Esquire
Jeffrey D. Hutton, Esquire
FOX ROTHSCHILD LLP
2000 Market Street, 10th Floor
Philadelphia, PA 19103-3291
(215) 299-2000
(215) 299-2150 (fax)
Attorneys for Plaintiff,
Viking Communications, Inc.
Dated: April 28, 2003
AGREEMENT FOR .TELEV~810..N 5ERVIC~ '
This Agreement effective this ~day of ~q~-t.~ ,2002 between Viking Communications
inc. ('VCI'), with its p~fncipel place of business Iocat~ at One Make. field Dr. Suite B, Morrisville, Pa.
19067 and Gray Drive, L.P., a Pennsylvania limited partnemhip ('Owner"), with its principal place of
business located et 76 Emtyn Lane, Mechanicsburg, Pa 17055
A. The Owner owns a certain muWfamily dWelling unit property {the ~Property') known as
'Graham Hill', being 188 residential dwelling units located et English Drive and Gray ,~treet,
Mechanicsl~mg, Pa. 17055. pursuant to e certain de~d dated and recorded in Deed Book
at page , and as further descn~ed in Exhibit "A" attached hereto and incorporated herein by
reference;
VCI is in the business of provldi~g to mul§famiJy dwelling units the following:
Television programming (the "Service~ through Me use of certain equipment and
facilities for the reception and delNery of apl RF, video or data signals over co-axial cable, or
through a ctistdbution system which may consist of Fiber Optics, satellite dishes, antennas, earth
stations, head-end electronics and other equipment W~e -System'); and
C. The Owner desires to make the ~ervices available to the tenan~ and residents and
site property manm3ement for the Properties (the 'ResidentS') and VCl is willing to provide the Services to
the Residents, subject to the terms end conditions of this Agreement.
In c0nsideretion o~' the foregoing, and the mutual premises here~n, the receipt and su~ciency of
which are hereby acknowledged, the partieS, intending to be legally bound, agree as follows:
1, R_i~h_t of_~c, ess and Or~er~tlo. n
(a) . Right to p;ovide Services. Owner hereby grants to VCI the exclusive right lo
provide to file Residents microwave, satellite, cable, or any other ~pe of subscription or
pay television programming.
(b) Right of Access. The Owner grants and convey~ to VCi access over, under,
across and through the Prope~es and each dwelliflg unit within the Properties. for the
purpose of co~ts~ructi0n, instaltalion, operation, maintenance, repair and removal of the
~stem. This Right of Access shell run with the land until the end of the Te~m of Ibis
Agreement and thereafter for a reasonable pedal, not to exceed thi~y (30) days, for the
purpose of removing the System or any pan thereof.
(c) Equipment Room, The Owner granb~ to VCI the exclusive right to' occupy
certain space (the "Equipment Room"), whic~ space shall be ~$ed to house such
equipment as VCI deems necessary in order to operate arid maintain the System. The
room will house VCI's head-end consisting of modulators, receivers, demodulators and
any additional equipment required to operate its system. Viking. at its sote cost ~nc~
expense, will provide adequate heat, cooling end electrical power service to ~ontro! the
climate of the room for the operation of the equipment. The Owner may ~'elocate the
Equipment Room provided that the relocation doe~. not adversely affect the delivery of
Services to the Residents.
(d) Use o! Existing and Future Acquired Wifmg and Equipment. Owner hereby
grants VCi the right to use the following:
any coaxial oable, outlets, and equipment, now ovmcd or hereinafter
accluired by the Owne~ (the 'Exis~ng Systems') for the sole pUI'i:KTse of
delivering the Service. IAr~h the Ovmer's prior' w~ilten approval of any
proposed modifies§om;, the Owner IUrther grants VCI the ~ght lo alter,
modify or change any of the Existing Systems.
Viking will provide and install, at ~ own expense, all cables, both internally end
externally, necessary for full operation of its cable television system.
(e) Cooperation of Owner with Utilities. In the event that VCI shall need the
services of any utility serving the Property, to complete the installation of the System or to
remove, modify or alter the System during the term of this Agreement. the Owner shall
fully cooperate with VCI to obtain said services, at vcrs sole cost and expense. In the
event that VCI shell require the use of the Owner's maintenance staff to complete the
installation oF the System, VCI shall first obtain approval from and reimburse the Owner,
at the Owner's customary rate for each maintenance employee, for the time that such
maintenance employee is so assisting VCI.
_Sales and_Ma ~rketin~l of Services
(a) The Owner grants vel the Im;lusive rigllt to marke~ the Services to all Residerits
of the ProperS/. Marketing and sales promotions may include, but are not lim~ed to,
mailings, telephone canvassing, and perSonal solicitation of the resider~ts at the property
by professional sales personnel, VCt will obtain Owner's approval, which shall not be
unreasonat~ly w;thheld, prior to any on-site marketing aotivities. All marketing campaigns
will be conducted during normal working hours of 9:00 AM lo 9:00 PM.
(b) Marketing. Owner shall, within reason, prominently display and advertise those
Services offered by VCi in the leasing office Fremises and shall post all marketing
materials provided by VCI for such purpose in a prominent manner within the Premises
so as to provide maximum access and viewing by Tenants. VCI may issue press
releases and/or publish advertisements, which may include Owner's name and the name
of the Premises, stating the existence of this Agreement end the availability of Ser~ee~, at
the Premises.
(a) The installation of all equipment shall be performed in a good workmanlike
manner ~n ac;ordance with Industry accepted engineering practices. Owner shall provide
to VCi any illformation avai)able to Owner, reasonably requeste~l by VCI as may be
necessary for the proper maintenance, installation and operalion of the SyStem. The
· System shall be completely operational within 45 days days of completion of the wiring
described in paragral;h l(d) above.
R~epair and M.aintenapce of the System
(a) Throughout the term of this Agreement, VC;L at its sole ~ost and expense, shall
Keep the System in goo(/ orcler and condition, and make ail necessary rel~airs thereto.
VCI shall respond to ali service calls in a timely manne~', tfa problem i;1 the .System
occurs (problem is defined as 10% percent of the System or channels provider1 me
inoperable.). VCl shall complete such repaim within a 48-hour period. All other reqtles~
for h~slallation, disconnect, individual set, ce calls, et:., shall be Scheduled for our next
available service day. VCrs normal business hours are Monday lhrough Friday, 9;00 AM
to 8:00 PM, and Saturdays, 9:00 AM to 4:00 PM. A 24-hour a day answering service is
available for any after hours system outages.
(b) Owtter is respansible for the maintenance and repair of alt home run wiring from
the outlet location within each unil to the electrical closets.
_C_omDen_satia_n~and Ri~ht_t~ Aud__it_
(a) Compensation.
!. VCl shall pay to Ills Owner (the "Compensation") ten percent (10%) of
the gross illcorne received from the Residenls for the Television Service
including premium services, excluding sales, use and excise taxes, late fee,a,
activation and installation fees, deposits, disco~neclion or repair charges billed t°
tenants, such as interest charges, collection costs, affomeys ~ees, court costs
and any other costs incurred to collect outstanding sums due (the 'l~everlues').
VC! shall pay 111e Competlsation to the Owner at the end of each calendar
quarter (the "Due Date") based upon the prior calendar quarter's Revenues.
Eacll Compensation Payment shall be accompanied by a statement of activity
describing, on a monthly basi~, the number of subscribers, level of service and
any other charges and the dollar amolint colle~ed there from.
IL VGI shall pay Owner a one-time access fee equal to $15.00 per unit.
Tl~e access free shall be paid as each building comes on line in an amount
equal to the number of units contained within the building times $15.00.
(b) Right to Audit. The Owner. at its sole cost and expense (unles~ a discrel~ency
or five (5%) percent or more is revealed, in which case VCl agrees to bear the
reasonable co51~ and expenses) may audit the Revenues irt order to verify the accuracy
of the Compensation, provided that:
I. the Owner specifically designates the calendar years that the Owner
intends to audit, which shall be a year wRhin three (3) calendar years preceding
the date of the audit, but must be within the term of this Agreement;
II. such audit wilt be conducted only during regular business hours at the
or§ce where VCl maintains the Revenue records (provided Revenue records are
kept within the States o! Oetaware. Pennsylvania or New Jersey) and only alter
the Owner has given VC! ten (10) business days written notice;
Tho OWner shall deliver to VCl a COl0Y of the results of such audit within
ten (10) busine~=s days el~ its receipt by Owner; and
Tl~rrn
IV. In the event that audil discloses an error in the Owner's favor, VCI shall
promptly pay the Owner such amount due. In the event that the audit discloses
an error in VC]'s favor, VCI shall take a cred'd; for such error against the
Compensation to be paid at the next quarter, unless no payment is due for ~e
next quarter in which event the Owner shall promptly pay VCI the amolJnt due.
The term ~Term") o! this Agreement and Addendums/Amendmenls shall commence on
the date l~rst written above and shell continue for a period of ten (10) years h'orn July
2002 and shall be automatically renewed for successive one (I) year terms, unless either
party gives written noff~ce of its inten~on not to renew, al least ninety (90) days I~lor to the
expiration of the thetl current term. Ail references in lhis Agl:eement to the "Term" of this
Agreement shall include any renewal term hereunder unless specifically otherwise
limited.
_O~nershi~ ~[the System
Subject to ihe rights of the pa~es in paragraph l(d) hereof. VCI shall retain title to the
Systems and all of i~ components, which shall remain the personal property of VCI and
shall not become fixtures. Heather Owner Ilar any lien holder or secured credi~ol~ of
Owner shell have or obtain any inferest ill the S)~--tems or any component parts thereof.
Owner hereby grants to VCI l~e right to enter the Property to remove the b"ystems
(excel~tJng tl~e cables, wiring and any conduit) within thirty (30) days following the
ex,ration or termination of this Agreement fat any reason whatsoever. Owner shall
cooperate with VCI to prevent theft or Illegal use o1' the Systems. Upon VCrs removal of
the b--'ystems or any pert thereof, VCI shall restore the Property as near as possible to its
prior condition. Any internal wiring installed by VCI shall be lelt in place at the expiration
of the contract.
Insuranc~e
VCl. at its sole cost, and expense, shall keep the System insured against loss Or damage
by ~e and against loss or damage by such other risks normally covered under an
"extended coverage" policy during the term of this Agreement in the amount deemed
I~rudent by VCI. but in any event not less than $I,000,000. VCI shall keep in force a
genera! liability' policy (including coverage for i~oducts and completecl operations) with
limits not less than $5,000,000 for each occurrence/aggregate. The aggregate is to be
provided on a "per location" basis. VCI shall also maintain mn force and effect a workers
compensation policy as required by the State of Pennsylvania or such other Slate in
which VCl is operating. Owner, at Its sole cost end expense, shall keep all buitdinas and
structures on the Properties (excluding the System) insured against loss or damage
caused by fire. VCl and Owner hereby release each other from any and all liability at
responsibility to Ihs other or alqyone claimillg through or under them by way of
~ubrogabon o~ otherwise for any loss or damage to Properties caused by fire and other
casualty which iS covered by fire alld extended coverage insurance policies required
under this Agreemenl, except no Suc. I~ waiver by way of sul~rogation or otherwise shall be
afl'active ClUHng the period Of time the System is being installed. E. actl party shall
promptly de~iver to the other evidence of insurance upon a party's wriffen request.
Indemnification
(a) During the Term of this Agreement. VC! ~11 indemnify and hold harmless me
Owner from anti agait~t all losses or expenses including reasonable attorney'S fees in
connection with paschal injury, death or property damage related to the installation and
operation of the System or the prov~ion for the Service, unless or to t~e extent such
injury or damage is due to the fault or neg~gence of the Owner. its agents or employees.
(b) During the Term of this Agreement, the Owner will indemnify and hold harmless
VCI from all losses and expenses including reasonable attorney's fees arising out of
personal injury, death or ~operty damage relatil~g to the condition or the operation of the
Property caused solely by the negligent acts of the Owner, unless or to the extent suCh
Jnju~y or damage is due to the faull Or negligence of VCI. its agents or employees.
10
13.
11.
In the event a portion of the Propen'y is taken or condemned or ~ transfer thereo! is made
In lieu o1' conclemna~lon, VCI shall have the right, at its option, tD terminate Agreement.
VC! shall make k'~ daterm|nalion as to whether or not to terminate this Agreement at it~
sole .discretion based upon the economic feasJbility o! continuing the Sendce te that
portion of the Property that remain after the condemnation and/or costs involved in
moving, rebuilding, or replacing any component parts of the Syr,/ern. VCI has the right to
recover for losses in a condemnation proceeding tO the extent that such recovery does
not diminish the Owner's recovery.
VCI may assign its obligations hereunder to any assignee the! is linanciatly responsible
and capable from an operational and technical point of view of Blfillincj the mrms and
conditions of the Agreement. In order to finance certain a=pect~ of its operations, VCI
may borrow money from various lending institulJor~s. VCI may make a collmeral
assignment of its right, title and interest in this Agreement to such lending in~;;{~dion~, as
VCI shall determine for such purposes.
(a) Neither party shall be deemed to have breached or to have been in default
under th~ A,~reemeht until prior written notice of the default has been given to the
defaul6ng party and the defaulting party has not (0 cured the monetary defauR, i.e.,
nonpayment of monetary amount when due, within 5 days, or any other default within
thirly (30~ days, of Ihe receipt of such noSce or, ('~ if the default Js not reasonably capabl'e
of beil~g cured wlUlin the saki thirty-day period, has not thereafter proceeded within
reasonable diligence to cure such default. Upon a breach or default hereunder, this
Agreement may be terminated by the non-defaulting Darty hereto.
(b) VCt will use reasonable diligence to preserve the continuity of the Services. but
in Ihe event of failure or interruption of the Services which does not rise to the level of a
material Failure or interruption, as delined hereafter, VCI shal~ not be considered in default
hereunder nor subject to any liabili[y, penalty or payment for or as a result of any failure
or interruption including loss of revenue or use relating lo times during which Me System
may be non-operational. Material failure or interruption shall be defined and limited to a
failure or ~ntem. ipl~ort in the Service for a period in excess five (5) days and shall not
include loss of use of the System from delays caused by factors beyond the reasonable
control of VCI, ~nctuding, without limitation, failure of equipment of others (including,
without limitation, common ceil'let satellite operators), acts of God, war, insurrecl~m.
labor strikes, delays in obtaining permits required by governmental entity, power failure
and the like.
This Agreement and the Right of Access granted herein shall run with the Property end
shall be binding Oll all purchasers, their heirs, assigns and grantees. VCI may have this
Agreement recorded in the O~ce for the Recorder of Deeds or other appropriate
governmental unit. The parties shall cooperate with any documerltation and notarization
necessary to validly record this Memorandum of Agreement.
14.
Notices -
Any notices required or permitted to be given under this Agreement shall be in writing
and shall be deemed to have been given il~ delivered Dem~nel/y or sent by cerlified mail.
postage prepaid, retum receipt requested to the ~ollowino addresses:
VCi- Ernest M. Nepa, Pre,sidant
V~ing Communications, Inc.
One Make6eld Road
Mornsville, PA, 1g067
Owner: Hugh Simpson, Managing Member
Gray Griffin, LLC
7'6 Emly~ Lane
Mechanicsburg. Pa 17055
Any Daffy may alter the address to which notices are to be $er~t by giving notice of such
change of address in c~nformily with the provisions of this paragraph for the giving of
notice.
MisceJlane ous
(a) Entire Agreement: This Agreement contatns all the terms and conditions
agreed upon the parties hereto with reference tO the sul~ect matter hereof. No changes
or merit§cations irt this Agreement shell be valid unless in writing and signed by al! the
parties hereto. The parties hereto agree to execute all such instruments and documents
and to takg all actions g$ may be reasonably required in order to consummate and carry
~r~to effect the transaction contemplated herein.
(b) Chok:e of Law. This Agreement and the xights and obligations o1' the pa~es
hereto shall be interpreted and construed ~n accordance with the laws of the
Commonweallh of Per~l~sylvania,
(c) Authority. Owner warrant~ arid represents that (a) it is the owner of the
Property in fee simple es of the date of this Agreement. (b) it has the compete right and
pOwer to execute this Agreement, (c) it is duly authorized to grant VCI the right~ under
this Agreement and that this Agreement does not conflict with any other agreement to
which Owner i= a party. VCI warrants and repmSenls that (a) it has the complete ~ght
and power to execute this Agreement, (b) it is duly authorized to execute =nd deliver th~s
Agreement algol (c) it has the financial ability to perform its obligatiop, s under this
Agreement.
(d) Waiver. Failure to delay of either party to enforce Its rlghls hereunde; shat! not
operate as a waiver or modifiestion of such rlgh~J, nor offset their ~ubsequet~t
enforcement.
(e) Captions. The captions Used In this Agreement are inserted only as a melter of
convenience and for refere~=e and they are not to I~e construed es part of this
Agreement and they in no way deflrle, limit or describe the scope or intent of
Agreemen~ or any part hereof. Such captions shall not affect this Agreement or any part
hereof in any way,
(0 Severabili~y,. In the event that any of this Agreement shall be held to be
indefinite, invalid or otherwise unenforceable, the entire Agreement shall not fail on
account thereof, but rather the offending provision or part thereof sha[I be stricken and
the balance of the Agreement shal! centinue In full force and effect.
(g) At alt ~imes, VC! shall perform'in accmdance with the laws, m;~ ;~ regulates
th~ in effect of ~e en~ having jod~on me.or.
IM ~ESS ~EREOF, ~e pa~es her~o have exe~ mb ~reement the day a~ year
above ~en,
ATTEST:
Gerald KelJy
Vi~ng Cp~nr~uniqMions Inc.
,/IEmest M. Nepa /J-
~ President ~'
ATTEST:
Gray Drive L.P.
7
Exhibit
PARCEL i
ALLTF.-ATCE_RTAiN lot of land situate in Uomer Allen Townshio.
Oumberland Coung¥, Pennsyivap~a. more particularly, describe~ as
follows, to wit:
BE=iN%NL~FJ aC a poin~ at the centerl~ae intersection of "Gray
Drive" ,~a 33 foot legal rich,-of-way}, ~d "South ~rke~ Street" -
M.R.0114 (an 80' right-of-way) crossing Sou~h Market Street right-
of-way Sou~h seven~y-eiMht degrees ~hir=y-sig~= minu~as thirty
ssconds Eas: (S 78~ 38' 30" ~) a distance of 40.~8 feet to a
concrete monumen~ on ~he eastern right-of-way line of South Market
Str~=; ghence along l~ds now or fo~mrlv of the Co,oration of
the 9r~miding Bishop of the Church of Jes~s Chrls~ of La~er Day
Saints ~he following courses and dlsgancms:
i. Alon~ a cu~e to the ief5, having a radius of 2~,00 feet. an
arc length of 44.3! feet to a concrete monument;
2. Thence along a cu~-~, cu~ing to =he left having a tedium of
270.00 feet, an arc length cf 38.93 feet to a concrete monument;
3. Th~,lc~ North s=vo--v -~ d~rees twe~ty-~m~=e minutes nine
seconds East (N 73" 23' 09" E) a distance of 223.97 feet to a
concrete monument;
4. Thence along a curvs, cu~;ing to the lef= having a radius of
35.00 feez. an arc length of 56.73 feet to a concrete monume~z;
5. Thence North nineteen degrees twenty-eight minutes for=y-one
seconds Wes= (N 19~ 28' 41, W) a distance of 345.55 feet to a
concrete monument;
6. Thence along a curve, curving to the left having a radius of
2~.00 feet, an arc length of ~8.54 feet to a concrete monument;
7. Thence a!on~ a ct---ye, cu_~ving to the right having a radius of
S0.00 fee~, an arc length of 100.68 feet;
8. Thence North nineteen degrees ~wenty-eigh~ minutes forty-one
~econdm west (N 19~ 28' 4!,, w) a distance of 23.07 feet;
Thence along lands now or formerly of Walter R. May, jr. the
following courses and distances:
1. Nor~k eighty-seven de~rees forty-n/ne minutes three seconds
~ast (N 87~ 49' 03" E) a distance of 75.51 feet:
2. Thence South eighty-eight de~ree$ thirty-six minutes tine
second~ East (S 88~ 36' 09" E), a distance of 193.58 fee~
! -4%9
3. ."~nence South fourteen degrees six minutes nine ~econds ~asu (S
14~ 06, 09" E} a distance of 288.75 fee=;
4. T~ence North flf=y-ei~h~ degrees forty-eight minutes fifty-six
seconds East tN ~8~ 48' ~" E) a distance ~f 15!.48 feet;
Thence along Lot "B" of.the plan described herein (now a portion
of th~ "Whizebrier, subdivision) the foll~wing courses and
distances:
· 1. Sou=h twenty-five degrees thirty-nine mlnu=e~ three seconds
East (S 25~ 39, 0~" E) a distance of 280.51 feet;
2. ~nence Sou~h forty-four degr~e~ thirty-five minutes fifty-one
seconds East {$ 4G: 35' 51" E) a die,anco'of 70.00 feet;
3. Thence South zero degrees fif=y-=~ven mlnute~ fifty-nin~
seconds Wes~ (S 00: 57, $9- w} a distance of 77.4~ feet;
4. Thence Souzh eight degrees six minutes thirtv-~wo =~conds East
($ 08~ 06' 32" E) a distance of 75 4~ f=~=,
~. Thence South two degrees =ero minutes eighzeen second~ Easz
02, OD, 18" E} a distance of 83.51 feet;
6. Thence Sou~h ~wenty-=hree degrees forty-one minutes
seconds WeS~ (S 23o 41' 40" W) a distance of 53.56 fee~;
7. Thence South sixty-one de~ree$ thirty-nine minutes fifty
seconds wes~ ($ ~1~ 39' ~0" w) a distance of 53.78
8. Thence Sou~h twenty-nine degrees n!nene~n minutes zeventeen
seconds west (S 29~ 19' 17" w) a distance cf 101.50 feet;
9. Thence $ou~h fifteen degrees fifty-five minu~es nineteen
seconds Wezt (S !$~ 55' 19', W) a dist-_hoe of 83.97 feet;
Thence along lands now or formerly of Arlingzon ~ills Home Owner's
Assoclazlon the following co~rses and di~t~uces:
1. North sixuy-one degrees thirty-eight manures eight seconds
Wes= {N 6!~ 38' 08" w) a distance Of 1]$.22
2. Thence aion~ a curve, curving ~o The rlgh= having a radius of
326.56 femt. an arc length of 1~6.40 fee~;
3. Thence along a curve, curvin~ to the left having a radius of
2S.38 feet, an arc length of 30.58 feet;
4. Thence Sou~h zero degree~ thirty-one minutes forty-four
=econds west ($ 00~ 31, 44,, W) a distance of ~8.74 feet;
Thence crossing a pcrtion of "Enolish
way) the following courses and d~stances7-~ (a 60 foot riCh,-of-
1. Nor=h eighty~nlne dQgrees twenty-ei~ht.~inu=~s sixteen seconds
west (N 89° 28' 16,, W) a distance cf 30.00 feet;
2. Thence South zero degrees =hir~¥-one minutes foray-four
se¢ond$.Wes~ (S 00o 31' 44,, w) a disuance of 22.22 fee~;
Thence crossing ~zF!ish Drive and al~o along lands now or formerly
of John w. Par=ridge, }~orth eighty-nine decree~ =wen:y-~ight
minu=~s sixteen ss~or, ds Wes= (N 89" 28' !6~ W! a dis~an¢~ of
145.00 renu; zhence along bo=h lands now or formerly of John
Partridge ~= various land owners of eleven (11} properties in
Ar!inqzo~ Kills ~h~ foliowi~g courses and distances:
1. South zero degrees tkirty-one minutes foray-four seconds West
{$ 00° 31' ~4" w) a disaance of 278.00 feet;
2 Thence Sou~h eleven ~ - ~
' ~-g.e_s fif=y~one minutes five seconds
las= ~S 11~ 51' 05', E) a distance of 72.96 fee~;
Thence along three (3) tracts of land now- or formerly of Anthony
T. in~reri, Sou~h seven~y-eight degrees eiqh~ minuses fifty-five
smcond~ Wes= ($ 78· 08' 55" w) a distance of 78.20 fee5; =henc~
along lands now or fo.~r, erly of D. Ray ~ostetzer. North seven
de~rees =wenty-four m£nu=e= =hirty-~hree seconds Wes= (N C?o 2~'
33" W) a distance o~ 238.20 fee~; ~hencm along the sa~e and also
lands now or formerly of James c. Wolfe, Nerth twelve degrees
fifuy-two mlnu~es for=v-four seconds West (}; 12° 52' 4~" W) a
distance of 240.90 fee~; thence along said lands of Ja~es C. Wolfe
and crossins a portion of Gray ~rive, Sou~h seventy-nine degrees
-- ~ ~-g~-~ m~nu~es thirzy-four seconds West ('$ 79~ 58' 34" w) a
diszance cf 99.00 feet to a railroad spike on =~e cen~erline of
,Gray Drive" (T-662); thence along said centerlina, North two
degrees zhirteen minutes fifty-four seconds Ea~
a disuance of 94.70 fee~ ~oa copper rod; thence crossing Gray
Drive North six~y-nine degrees thirty-three ~inu~es ~o~y~three
seconds East (N 69~ 33' 43" ~) a di=aance of 27.09 fee~; thence
along Lot "C" (lands now or formerly of Richard
following courses and distances:
1. Bou~h =wo degrees thir=een minutes fifty-four seconds wes= (S
02: 13' 54" W) a distance of 16.26 fee[;
2. ~b. enc~ Nor=h six=y-nine degrees thirty-=~r~e minu~es forty-
~hree secunds ~ast (N 69e 33' 43, E} a distance of 34~.89 fee=;
3. Thence North sixteen degree= nine ~inu~es forzy-five seconds
west (N 16~ 09' 4~" W) a distance of 130,46 fee%;
4. Thence South sixty-eight d~rees th~rzeen minutes fifty-five
seconds Wes[ (S 68. ~3' 55- w) a distance o: 303_30 fee=;
5. Thence Sou~h two de~ree$ thlrt~en minutes flf~y-four seconds
Wast {S 02~ !3' =4" w) a distance of !6.~2
Thence crossing Gray Drive, South slxty-eigh~ degrees thlrteem
minutes fifzy-fiVa seconds West (S 68" 13' SS" w}.a distence of
27.37 ~eet =o a copper rod in the center!ine of Gray Drive;
Thence along the 6enterllne of Gray Drive the following courses
and distances:.
1. North two degrees ~irteen minutes fifty-four seconds East (N
02~ 13' 54" E) a distance of 57.00 feet to a copper rod;
2. Thence along a curve, curvin~ to the left, having a radius of
313.95 feet, an arc length of 139.89 feet to a copper rod;
3. Thence North twenzy-three degrees seventeen ~i~u=es fifty-four
seco~d~ wes~ (N 23~ 17' 54" w) a distance of 70 87 feet
point of BEGI.~NI~.
BEING LOT A on the ~r~e Lo~ Subdivision {Lots A, B and C) Plan
for SavOury Cor!~.ora=ion, prepared Dy j. Michael srii! a Assoc.
inc., Co,suiting Engineers. recorded in Cumberland County Plan
Bock 65, PaBe 148.
Being Tax Saree! 4~-27-1890-001
~ARCEL 2
ALL ~'~iAT C~RTAIN piece, parcel, 10= or tract of land situate in
Upper Allen Townshio, Cumberland County, Penns ivan
' '' ' ' - · · ~as~~ ~cwn on
a ~re~:mznary_/F;nal Subd:v~sion ~lan entitled
Subdivision ~Thre
(Lots A, ~ and C)', for Set, bury Corporation recorded in
Plan ~ook 65, Page 148; and more particularly bounded and
d~scribed a~ follows to wit:
BEGinniNG at a point on the easterly dedicated right-of-way line
of Gray Drive T-662 (33 foo~ ri~h=-of-way) at the dividing line
between Lot A and Lot C a~ ~hown on the aforemenzioned Subdivision
Plan; thence along said dividing line Nort~ sixty-eight degrees
thirteen minu~as fifty-five seconds ~ast (~ 68" i~' 55" ~;, a
distance of 303.30 feet to a Doing; thence continuing South
sixteen degrees nin~ minutes for=y-five seconds East (S !6° 09'
45" E) a distance of 130.46 feet to a point; =hence South six=y-
nine degrees thirty-three minutes for=y-three seconds wes~ {$ 69·
33' 43" W), a distance of 344.89 feet to a point; thence Nor=h two
degrees ~hlr=een minutes ~ifty-four seconds East (N 02" 13, 54" E!
a d~stance of 16.26 feet tO a point at lands now or formerly of
Richard E. Mowerv (Deed Book 28-K-573); thence alpn~ s
Nowery North sixty-nine degrees thi.ty-th.e~
mlnu=es forty-three seconds East (N ~9" 33' 43. E} a distance of
324.71 feet to a point; thence North sixteen degrees ni~e minutes
forty-five seconds West (N 16" 09' 4~, w) a distance of 100.00
feet to a pOin=~ thence South six=y-eight degrees thirteen minutes
fifty-five seconds West (S 68~ 13' 55" W) a distance of 293.43
feet to a point; thence North two degrees thirteen minu~es fifty-
four seconds East IN 02° 13' $4- E) a distance of 16 42 feet to a
polnu the place of BEGINNi.~IG. '
BEING io~ C on the Preliminary/Final Subdivision Plan =f
Lots SU~div~slons (5ors A, B and C) recorded '
14~. '' Plan Book ~:, Page
B~!}~ t~ same premises which Greenville AgricultUral
Cor~.~orauicn, a North Carolina corporation, by deed dated Dece,.~oer
17, i999, and r~corded De=e~er 2%, 1999, in =he Office
Recorder of Deeds in and for Cu~erland Coun=y, Pennsylvania,
Deed ~eo~ 213, ~a~e 940, grRn~ed and conveyed un~o Gray
2.99 Acre Hereford Drive:
ALL T~T CERTAIN tract or parcel of land Si=ua~ in the Township
of Upper Allen. County of Cumberland, Commonw~a!th of
.~.unsylva.._=, bounded and described as follows:
BEGi~i~ a= a Concrete Monument se~ in the oas=em ri~h=-of-way
line of Seu=h Mark~ Street (L.R. 416), said Monumen= heine
located a~ the northern end of a cu~;e coP-nec=in~ =he nor~hs~
right-of-wa}, line cf ~ereford Drive ~nd ~he eas=~rn richz-cf-way
=_n_ cf South Marke~ SCreen; thence along ~hs said eastern
of-way iin~ of Sou~h Marke~ Stree~ by a cu~Je to the left havXn= a
rpdlus of 1,950.08 feet, an arc l~n~ m~ ~-~ ,
o~ which is Nort~ 4 ~ .......... ~-~" U~ -~.04 ~ee~, :he cnow~
Walner ~. May, Jr. South 89 degrees 2! minutes 50 seconds ~ast, a
distance o~ 207.66 feet =o a poin~; thence along lands designa=ad
as open space of
A.~ln~¢on Hills, Phase ti, South !9 degrees
~inutes 41 seconds Eas=, a disCance of 23.07 feeu to a poin¢ in
~he right-of-way line of English Drive; ~hence along the said
rlgh¢-of-way line of English Drive by a cu~e ~o the ief= having a
radius cf 50.00 = ~
re.t, an arc length of 100.68 fee=, the chord of
which is Sou=h & degrees 37 ~nute~ 25 seconds East, 84.51 fee~
a Concrete Monument: thence co~=inuing along Che same by a
~o the righ~ having a radiu~ Of 25.00 fse~, an arc !on, th of 18.69
feet, Ch~ chord of which is South 40 de,roes 53 minu=e~ %1 seconds
Eas¢, 18.~6 fe~t to a Concre=e Mon~ment~ thence continuing along
~he same South !9 de~r~s 28 minutes 41 seconds East, a distance
of 3~5.5~ fee= to a Concrete Monument; ¢hence leaving the said
wesCern right-of-way line of English Drive by a cu~;e mo ~he right
hav~ng a radius of ~5.00 feet, an arc length'of 56.73 fee~, the
chord of which is South 2~ degrees 57 m~nutes 14 seconds Wes=,
S0.72 fee~, no a Concrete Monumen= se~ in the northern right-of-
way line of Her~for~ Drive; ~hence along =he northern ri~h=-of-way
line of Hereford Drive SOuth 73 degrmes 23 minutes 09.seconds
West, a distance of 2~3.97 feet to a Concreue ~onum~n~; ;hence
con~inuin= along the sams by a cu~e ~o tRe righ~ having a radius
of 270.00-feeu, an arc length of 38.93 fee=, the chord of which
SOuth 77 degree 31 minu=es 00 seconds Wes;, 38.90 fee= ¢o a
Concre=e Monumen;~ Chence ~eavin= tko northern right-of-way lln~
of ~ereford Drive ~y a cu~e to the righ= having a radius of 2S.oo
fee~, an arc length of 44.31 £eeu, ~he chord'of which is North 47
degrees 34 minutes 49 seconds West, 38.7] feet to a concrete
Monument, the place of BEGINNING.
CONTAINING 2.99 acres of land.
TOGZT~R wi=h the right ~f ingress, egres~ and
Purposes over and upon such stree=s known as English Drive and
Hereford Drive inso£ar as they abut ~he property herein conveyed.
BEING the same premises which Corporation of =he ~residing Bishop
of t~e Church of Jesu~ Christ of the La~er Day Saints, a Utah
Corpora=ion, by deed da=ed November 12, 2001, and recorded
December 10, 2001, in =he Office Of ~he Recorder of Deeds in and
for Cumberland County, Pennsylvania, in Deed 8ook249, Page 2691,
~ranted and conveyed unto Gray Drive,
~" : SS.
COUNTY OF ~ ;
me, the unaersmned officer e' __ ',, , ~r~nel~ came ~fore
'- ' ~ aekn~~a~,ac~n ~at th~ ~n ~ ~e ~na~ng
~mber of Gray Gdffin. L.L.C. General Pa~er of Ga~ D~e L.P, a~ ~et ~ch pe~n being du~
e~o~z~ ~ do so di~ execute a~ defer ~e ~r~oing i~kument for ~e pur~ses therein cont~ee
by signing the name of ~he' pa~nemh~ es-such o~er.
N~ k, SOS~R, ~ARY ~LIC I
COMMONWEALTH OF PENNSYLVANIA :
: SS.
COUNTY OF I~UCK8 .
BE fT KNOWN that on this ~ day of~2002, Ernest M. Nepa pemonalh/ came
E~efore me. the undersJgnecI officer, and acRno, v0ted~'ed to~-~'~'allsfaction that
· this person F~ the president
of V~king Communications. Inc. and thai such person being duly authorized to do so did execute and
deliver the foregoing instrument for the purposes Iherein contained by signing irt the name of the
~orporation as such officer.
IMv ' ~'qOTxRIAL SEAt ....... - I
tOR, A. JUDGE. Note~y
~bt0rri~vl.qe I~Cx'o, Bucks Courity
TOTAL
FOX ROTHSCHILD LLP
BY: ScoTr L. VERNICK, ESQUIRE, JEFFREY D. HUTTON, ESQUIRE
I.D. NOS.: 51547, 59071
2000 MARKET STREET, 10t~ FLOOR
PHIIJADELPHIA, PA 19103-3291
(215) 299-2000
(215) 299 2150 (fax)
A'I'TORNEY FOR PLAINTIFF
VIKING COMMUNICATIONS,
INC.
VIKING COMMUNICATIONS, INC.,
Plaintiff,
vi.
GRAY DRIVE, L.P.,
Defendant.
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
CIVIL ACTION - LAW
NO.
JURY TRIAL DEMANDED
VERIFICATION
Ernest M. Nepa, President of Viking Communications, Inc., hereby verifies on behalf of
the Plaintiff in the instant civil action, that the facts set forth in the foregoing Complaint are tree
and correct to the best of his knowledge, information and belief, and this Verification is made
subject to the penalties of 18 Pa. C.S.A.§4904, relating to unswom falsification to authorities.
ERNE/ST M. NEPA
(President of Viking Communications, Inc.)
Dated:
PHI 484147vl 04/15/03
FOX ROTHSCHILD LLP
BY: SCOTT L. VERNICK, ESQUIRE, JEFFREY D. HUTTON, ESQUIRE
I.D. NOS.: 51547, 59071 ATTORNEYS FOR PLAINTIFF
2000 MARKET STREET, 10th FLOOR VIKING COMMUNICATIONS,
PHILADELPHIA, PA 19103-3291 INC.
(215) 299-2000
(215) 299 2150 (fax)
VIKING COMMUNICATIONS, INC.,
Plaintiff,
V,
GRAY DRIVE, L.P.,
Defendant.
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
CIVIL ACTION - LAW
NO. 03-2035 CIVIL TERM
AFFIDAVIT OF ERNEST M. NEPA
STATE OF NEW JERSEY :
; SS
COUNTY OF CAMDEN :
I, Ernest M. Nepa, being duly sworn according to law, depose and say that:
1. I am the President of Viking Communications, Inc. ("VCI"), which is
incorporated under the laws of Delaware and maintains its principal place of business in Cherry
Hill, New Jersey. VCI is the plaintiff in these proceedings.
2. VCI is in the business of developing, managing, and operating communications
networks, and providing cable television services to consumers in interstate trade and commerce.
3. VCI offers to existing and prospective customers multiple channels of video
programming in analog or digital format. Individual channels are bundled together and sold as
packages or "tiers" of programming (for example, basic, extended basic, premium and pay-per-
view). Individual customers pay VCI subscription fees, typically on a monthly basis, depending
on the tier of programming desired by the customer.
4. VCI offers its cable television services to residents living in multiple dwelling
unit ("MDU") communities such as private condominiums, apartment complexes and residential
developments.
5. As a matter of general practice, in order to market its products to residents of an
MDU community, VCI contracts with the owner or manager of the MDU community for
permission to market and operate a video programming system in the community. Once it
contracts with the owner or manager, VCI then constructs, installs, and maintains the
infrastructure and equipment (for example, pedestals, boxes, shrouds, amplifiers, locks and
wires) necessary to receive and transmit programming signals throughout the MDU community.
All the while, VCI markets its cable television services to tenants, residents and occupants at the
MDU community.
6. Gray Drive, L.P. ("Gray Drive") owns a complex of apartments commonly known
as "Graham Hill" at English Drive and Gray Street, Mechanicsburg, PA 17055. Gray Drive is
the defendant in these proceedings. Graham Hill is still under construction.
7. On or about August 26, 2002, Gray Drive and VCI entered into an Agreement for
Television Service (the "Agreement").
2
8. Under the Agreement, Gray Drive granted to VCI the exclusive right to provide
"microwave, satellite, cable or any other type of subscription or pay television programming" to
the residents of Graham Hill. See Agreement at ¶1 (a).
9. In direct violation of this Agreement, Gray Drive has allowed Comcast Cable
Communications, fac. ("Comcast") to begin building its own infrastructure for the purpose of
providing cable television services to the residents of Graham Hill.
10. VCI competes with Comcast for cable television customers residing in MDU
communities.
11. At all times since the inception of the Agreement, VCI has performed all of its
obligations as outlined in the Agreement.
12. On April 1, 2003, VCI sent a letter to Gray Drive that stated that its unlawful and
wrongful conduct constituted a material breach of the Agreement; in the letter, VCI also
demanded that Gray Drive cure its breach. In order to "cure" its breach, VCI required Gray
Drive to (1) advise Comcast that it could no longer access Graham Hill to install an infrastructure
for providing cable television services, and to respond to any attempt by Comcast to gain such
access; and (2) an'ange for the removal of any and all wiring that Comcast had already installed.
Gray Drive has failed to take any of these such actions to cure its breach of the Agreement.
13. Gray Drive materially breached and continues to breach the Agreement by
allowing Comcast to build its own infrastructure at Graham Hill despite the exclusive right to
provide services granted to VCI in the Agreement.
14. Gray Drive's breach of the Agreement prevented, and continues to prevent, VCI
from exercising its rights under the Agreement.
3
15. By permitting Comcast to build its own infrastructure at Graham Hill, Gray Drive
has unlawfully and wrongfully prevented, and continues to prevent, VCI from fully exercising its
exclusive right under the Agreement to provide "microwave, satellite, cable or any other type of
subscription or pay television programming" to tenants, residents and occupants at Graham Hill.
16. As a result, Gray Drive has unlawfully and wrongfully interfered with VCI's
prospective subscription agreements for "microwave, satellite, cable or any other type of
subscription or pay television programming" with the tenants, residents and occupants of
Graham Hill.
17. Gray Drive is not privileged or justified in interfering with the exclusive right of
VCI to provide "microwave, satellite, cable or any other type of subscription or pay television
programming" to tenants, residents and occupants of Graham Hill.
18. As a result of Gray Drive's unlawful and wrongful conduct in permitting Comcast
to build its own infrastructure for providing cable television services at Graham Hill, as well as
Gary Drive's unlawful and wrongful interference with VCI's prospective subscription
agreements with tenants, residents and occupants of Graham Hill, VCI has been, and will
continue to be, prevented from fully exercising and enjoying its rights under the Agreement to be
the exclusive provider of "microwave, satellite, cable or any other type of subscription or pay
television programming" at Graham Hill.
19. As a result of Gray Drive's unlawful and wrongful conduct in permitting Comcast
to build its own infrastructure for providing cable television services at Graham Hill, as well as
Gary Drive's unlawful and wrongful interference with VCI's prospective subscription
agreements with tenants, residents and occupants of Graham Hill, VCI has suffered, and will
continue to suffer, a severe disruption to its business because Gray Drive has permitted Comcast
4
- a direct'competitor of VCI - to exercise and benefit from the same or similar rights that have
been granted exclusively to VCI under the Agreement.
20. VCI's exclusive right to provide cable television services at Graham Hill, as well
as its prospective subscription agreements with Graham Hill's tenants, residents and occupants,
provide VCI with (i) a business opportunity to expand the scope of its MDU customer base, and
(ii) a distinct market advantage over its competitors (including, but not limited to, Comcast) who
market the same or similar services to the owners of MDU communities.
21. As a result of Gray Drive's unlawful and wrongful conduct in permitting Comcast
to build its own infrastructure for providing cable television services at Graham Hill, as well as
its unlawful and wrongful interference with VCI's prospective subscription agreements with
tenants, residents and occupants of Graham Hill, VCI has and will continue to lose this business
opportunity and unique market advantage.
22. As a result of Gray Drive's unlawful and wrongful conduct in permitting Comcast
to build its own infrastructure for providing cable television services at Graham Hill, as well as
its unlawful and wrongful interference with VCI's prospective subscription agreements with
tenants, residents and occupants of Graham Hill, VCI stands to lose subscribers who will enter
into subscription agreements with Comcast. The exact number of subscription agreements, their
duration, the specific package or tier of cable television service that would have been purchased
by each tenant, resident and occupant, and the charges and fees that would have been paid to
VCI under these subscription agreements are impossible to measure or estimate - especially in
light of the ten-year term of the Agreement (see Agreement at ¶7). As a result, the monetary
5
losses that VCI will suffer as a result of Gray Drive's unlawful and wrongful conduct are
difficult, if not impossible, to calculate with reasonable certainty.
ErneSt M. Nepa
(Pr~ident of Viking Communications, Inc.)
Sworn to and subscribed before
me this~'7~day of J~9~'L.. ,2003
Nota~public ' - _
MARCELLA KNIGHT
NOTARY PUBLIC OF NEw JERSEY
MY COMMISSION EXPIRES JAN. 2, 2007
PH1 485112vl 04/16/03
6
FOX ROTHSCHILD LLP
BY: SCOTT L. VERNICK, ESQUIRE, JEFFREY D. HUTTON, ESQUIRE
I.D. NOS.: 51547, 59071 ATTORNEYS FOR PLAINTIFF
2000 MARKET STREET, 10th FLOOR
PHILADELPHIA, PA 19103-3291
(215) 299-2000
(215) 299 2150 (fax)
VIKING COMMUNICATIONS,
INC.
VIKING COMMUNICATIONS, INC.,
Plaintiff,
GRAY DRIVE, L.P.,
Defendant.
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
CIVIL ACTION - LAW
NO. 03-2035 CIVIL TERM
MEMORANDUM OF LAW IN SUPPORT OF
PETITION FOR A PRELIMINARY INJUNCTION
OF PLAINTIFF VIKING COMMUNICATIONS~ INC
INTRODUCTION
Plaintiff, Viking Communications, Inc. ("VCI"), files this memorandum of law in support
of its petition for a preliminary injunction (the "petition"). VCI instituted these proceedings by
filing a verified complaint against defendant, Gray Drive L.P. ("Gray Drive").~ As set forth in
detail in the accompanying verified complaint and Affidavit of Ernest M. Nepa ("Nepa
Affidavit"), Gray Drive has unlawfully and wrongfully breached its contract with VCI and, in the
~ A tree and correct copy of the verified complaint is attached to the petition as Exhibit "1".
process, unlawfully and wrongfully interfered with VCI's prospective contractual relationships.2
For the reasons set forth below, this Court should issue a preliminary injunction enjoining Gray
Drive from engaging in its unlawful and wrongful conduct.
II. STATEMENT OF FACTS
VCI is in the business of developing, managing, and operating communications networks,
and providing cable television services to consumers in interstate trade and commerce. See
Complaint at ¶1; Nepa Affidavit at ¶2. VCI offers to existing and prospective customers
multiple channels of video programming in analog or digital format. Individual channels are
bundled together and sold as packages or "tiers" of programming (for example, basic, extended
basic, premium and pay-per-view). Individual customers pay VCI subscription fees, typically on
a monthly basis, depending on the tier of programming desired by the customer. See Nepa
Affidavit at ¶3. VCI offers its cable television services to residents living in multiple dwelling
unit ("MDU") communities such as private condominiums, apartment complexes and residential
developments. See Nepa Affidavit at ¶4.
As a matter of general practice, in order to market its services to residents of an MDU
community, VCI contracts with the owner or manager of the MDU community for permission to
market and operate a video programming system in the community. Once it contracts with the
owner or manager, VCI then constructs, installs, and maintains the infrastructure and equipment
(for example, pedestals, boxes, shrouds, amplifiers, locks and wires) necessary to receive and
transmit programming signals throughout the MDU community. All the while, VCI markets its
cable television services to tenants, residents and occupants at the MDU community. See Nepa
Affidavit at ¶5.
2 A tree and correct copy of the Nepa Affidavit is attached as Exhibit "2" to VCI's petition for a
preliminary injunction.
Gray Drive owns a complex of apartments commonly known as "Graham Hill" at
English Drive and Gray Street, Mechanicsburg, PA 17055. See Complaint at ¶2; Nepa Affidavit
at ¶6. The Graham Hill complex is still under construction. On or about August 26, 2002, Gray
Drive and VCI entered into an Agreement for Television Service (the "Agreement").3 See
Complaint at ¶3; Nepa Affidavit at ¶7. Under the Agreement, Gray Drive granted to VCI the
exclusive right to provide "microwave, satellite, cable or any other type of subscription or pay
television programming" to the residents of Graham Hill. See Agreement at ¶1 (a); Complaint at
¶4; Nepa Affidavit at ¶3. In direct violation of this Agreement, Gray Drive has allowed Comcast
Cable Communications, Inc. ("Comcast") to begin building its own infrastructure for the purpose
of providing cable television services to the residents of Graham Hill.4 See Complaint at ¶5;
Nepa Affidavit at ¶9. VCI competes with Comcast for cable television customers residing in
MDU communities. See Nepa Affidavit at ¶9.
On April 1, 2003, VCI sent a letter to Gray Drive informing it that its unlawful and
wrongful conduct constituted a default under the Agreement; in the letter, VCI also demanded
that Gray Drive cure the default.5 In order to "cure" its breach, VCI required Gray Drive to
(1) advise Comcast that it could no longer access Graham Hill to install an infrastructure for
providing cable television services, and to respond to any attempt by Comcast to gain such
access; and (2) arrange for the removal of any and all wiring that Comcast had already installed.
Gray Drive has failed to take any of these actions to cure its breach of the Agreement. See Nepa
Affidavit at ¶12.
3 A true and correct copy of the Agreement is attached to the verified complaint as Exhibit "A".
4 At all times since the inception of the Agreement, VCI has performed all of its obligations as outlined in
the Agreement. See Nepa Affidavit at ¶11.
5 A true and correct copy of the letter is attached to VCI's petition for a preliminary injunction as Exhibit
III. ARGUMENT
A. Standard For A Preliminary. Injunction
To be entitled to a preliminary injunction, as governed by Rule 1531 of the Pennsylvania
Rules of Civil Procedure, the moving party must establish that: (1) it has a clear right to relief;
(2) the preliminary injunction is necessary to prevent immediate and irreparable harm that cannot
be compensated by monetary damages; (3) a greater injury will result by refusing to issue the
injunction; and (4) the injunction will restore the parties to the status quo as it existed prior to the
wrongful conduct. See Valley Forge Historical Soc. v. Washington Memorial Chapel, 426 A.2d
1123, 1128 (Pa. 1981); Greco v. Hazelton City Authority, 721 A.2d 399, 401 (Pa. Cmwlth.
1998). The purpose of a preliminary injunction is to avoid "irreparable injury or gross injustice
until the legality of the challenged action can be determined." All-Pak, Inc. v. Johnston, 694
A.2d 347, 350 (Pa. Super. 1997) (quoting Fischer v. Department of Public Welfare, 439 A.2d
1172, 1174 (Pa. 1982)). Here, all of the elements for issuing a preliminary injunction exist;
accordingly, the Court should enjoin Gray Drive from further engaging in the unlawful and
wrongful conduct that has, and continues, to cause irreparable injury and gross injustice to VCI.
B. VCI Itas A Clear Right To Relief On Its Claims For Breach Of Contract And
Intentional Interference With Prospective Contractual Relations
1. Gray Drive Has Breached~ And Continues To Breach~ The Agreement
To establish a cause of action for breach of contract, a plaintiff must prove: (1) the
existence of a contract, including its essential terms; (2) a breach of a duty imposed by the
contract, and (3) resultant damages. See CoreStates Bank, N.A.v. Cutillo, 723 A.2d 1053, 1058
(Pa. Super. 1999). Here, Gray Drive's breach of the Agreement is evident.
4
VCI and Gray Drive signed the Agreement which sets forth the terms and conditions of
agreed upon. All of the terms of the Agreement were bargained for at arm's length and between
sophisticated parties. Importantly, paragraph no. 1 (a) of the Agreement states:
1. Right of Access and Operation
(a) Right to provide Services. Owner hereby grants to VCI the
exclusive right to provide to the Residents microwave, satellite,
cable, or any other type of subscription or pay television
programming.
See Complaint, Exhibit "A" at ~[1 (a) (emphasis in bold in original; emphasis in italics added).6
By permitting Comcast to build its own infrastructure for providing "microwave,
satellite, cable or any other type of subscription or pay television programming" at Graham Hill,
Gray Drive materially breached, and continues to breach, paragraph no. 1 (a) of the Agreement.
Importantly, Gray Drive granted VCI the exclusive right to provide "microwave, satellite, cable
or any other type of subscription or pay television programming" at Graham Hill. Significantly,
a court may issue injunctive relief as a means of enjoining a party from violating an exclusive
rights contract. See Marchio v. Letterlough, 237 F.Supp.2d 580 (E.D. Pa. 2003) (applying
Pennsylvania law) (enjoining boxer from breaching agreement to box in matches promoted
exclusively by plaintiff); Green Stripe, Inc. v. Bemy's Internacionale, 159 F.Supp.2d 51 (E.D.
Pa. 2001) (applying Pennsylvania law) (enjoining grower from breaching contract granting
plaintiff exclusive right to distribute and receive proceeds from harvest of grapes); Hillard v.
Guidant Corp., 37 F.Supp.2d 379 (M.D. Pa. 1999) (applying Pennsylvania law) (enjoining
manufacturer from breaching exclusive sales representative contract).
6 Among other fights, Gray Drive also granted VCI the exclusive right to market its pay television
programming services to the residents of Graham Hill. See Agreement at ¶2.
As a direct and proximate result of the unlawful and wrongful breach of the Agreement,
VCI will suffer actual harm in the nature of (1) lost revenue and profits that would have been
realized through subscription agreements with tenants, residents and occupants of Graham Hill;
(2) lost business opportunity in terms of significantly expanding the scope ofVCI's MDU
customer base; and (3) lost market advantage over its competitors (including, but not limited to,
Comcast) who market cable television and related services to the owners of MDU communities.
See Nepa Affidavit at '~]15-22.
For these reasons, VCI has a clear right to relief on its claim for breach of contract, and
this Court should issue a preliminary injunction.
2. Gray Drive Has Interfered, And Continues To Interfere, With VCI's
Prospective Subscription Agreements With Tenants, Residents And
Occupants Of Graham I-Iill
To prevail on a claim for intentional interference with prospective contractual relations, a
plaintiff must establish: (1) the existence of a proper prospective contractual relationship
between the plaintiff and a third party; (2) the defendant acted for the purpose of causing the
specific type of harm to plaintiff, (3) the act was unprivileged, and (4) actual harm resulted. See
Geyer v. Steinbronn, 506 A.2d 901 (Pa. Super. 1986). Each element of this tort is readily
established here.
First, under the Agreement, Gray Drive granted to VCI the exclusive right to market and
the exclusive right to provide "microwave, satellite, cable or any other type of subscription or
pay television programming" at Graham Hill; as a result of granting VCI these exclusive rights,
Gray Drive knew that VCI would enter into subscription agreements with the tenants, residents
and occupants of Graham Hill. Accordingly, these subscription agreements constitute legitimate
6
"prospective" contracts about which Gray Drive had knowledge at the time that it permitted
Comcast to build its own infrastructure for providing cable television services at Graham Hill.
Second, by permitting Comcast to build its own infrastructure at Graham Hill, Gray
Drive has completely interfered with VCI's prospective subscription agreements and, as a result,
impinged on its legal rights. Gray Drive has acted with an intent to cause VCI to lose its
prospective subscription agreements, and the profits, business opportunity and market advantage
that those agreements represent.
Third, Gray Drive is not privileged or justified to interfere in VCI's prospective
subscription agreements with the tenants, residents and occupants of Graham Hill. On the
contrary, Gray Drive's interference arises strictly from its unlawful and wrongful breach of the
Agreement and, more specifically, the Agreement's language granting VCI the exclusive right to
provide "microwave, satellite, cable or any other type of subscription or pay television
programming" at Graham Hill. Significantly, Gray Drive knows that it granted VCI the
exclusive right to provide pay television programming at Graham Hill, and that there exists the
likelihood for subscription agreements between VCI and Graham Hill's tenants, residents and
occupants. As a result, Gray Drive's interference with those prospective contractual
relationships must be interpreted as intentional and willful.
Finally, Gray Drive's conduct has caused VCI to suffer damages - some of which cannot
be quantified. Accordingly, VCI has a clear right to relief against Gray Drive for intentional
interference with VCI's prospective contractual relationships.
C. VCI Will Suffer Immediate And Irreparable Harm Unless Gray Drive Is
Enioined
If Gray Drive is not enjoined from engaging in its unlawful and wrongful conduct, VCI
will suffer immediate and irreparable harm. For preliminary injunction purposes, an injury is
regarded as irreparable if it will cause damage that can be estimated only by conjecture and not
by an accurate pecuniary standard. See Summit Towne Centre, Inc. v. Shoe Show of Rocky
Mount, Inc., 786 A.2d 240 (Pa. Super. 2001). Pennsylvania courts sitting in equity have
jurisdiction to prevent the continuance of acts prejudicial to the interest of individual rights,
including the authority to enjoin breaches of contract where money damages are an inadequate
remedy. See Sovereign Bank v. Harper, 674 A.2d 1085 (Pa. Super. 1996) (preliminary
injunction requiring mortgagors to withdraw and strike recorded revocation of deed and
prohibiting mortgagors from interfering with sale of property where behavior would irreparably
harm mortgagees' market advantage). Here, the Court should enjoin Gray Drive because its
unlawful and wrongful conduct violates VCI's contractual rights under the Agreement and will
cause immediate harm that cannot be measured in money damages.
Without an injunction, VCI will be prevented from fully exercising and enjoying its
rights under the Agreement to be the exclusive provider of "microwave, satellite, cable or any
other type of subscription or pay television programming" at Graham Hill. See Nepa Affidavit at
'~18. Allowing Comcast to build its own infrastructure for providing such services at Graham
Hill has caused, and will continue to cause, severe disruption of VCI's business because it
substitutes Comcast (a competitor of VCI) into the role of Graham Hill's cable television
provider, contrary to the exclusive right afforded to VCI under the Agreement. See Nepa
Affidavit at ¶19. Such interference by Gray Drive is immediate and not subject to a precise
calculation of damages. Further, allowing Comcast to build its own infrastructure for providing
pay television services at Graham Hill immediately threatens (i) VCI's right to expand
significantly the scope of its MDU customer base, and (ii) VCI's market advantage over its
competitors (including, but not limited to, Comcast) who market the same or similar services to
owners of MDU communities. See Nepa Affidavit at ¶20. Accordingly, the harm suffered by
VCI is "irreparable" as a matter of law. See Masure v. Massa, 692 A.2d 1119, 1122 (Pa. Super.
1997) ("In the commercial context, the impending loss of a business opportunity or market
advantage may aptly be characterized as an irreparable injury").
Gray Drive's unlawful and wrongful interference with VCI's prospective subscription
agreements will also cause VCI to lose subscribers who will, because of such conduct, enter into
subscription agreements with Comcast. The exact number of subscription agreements, their
respective duration, the specific package or tier of cable television service that would have been
purchased by each tenant, resident and occupant, and the charges and fees that would have been
paid to VCI under these subscription agreements cannot be measured or estimated, especially in
light of the fact that the term of the Agreement is ten (10) years.7 As a result, the monetary
losses that VCI will suffer are not readily calculated with any certainty. See Nepa Affidavit at
¶21-22. Accordingly, VCI will suffer harm that is "irreparable" as a matter of law. See Carlini
v. Highmark, 756 A.2d 1182 (Pa. Cmwlth. 2000) (threat of irreparable harm where termination
of physician's participation in health maintenance organization network would cause loss of
patients in unascertainable amount); Alabama Binder & Chemical Corp. v. Pennsylvania Indus.
Chemical Corp., 189 A.2d 180, 184 (Pa. 1963) (irreparable harm is threatened when damages
would be "difficult, if not impossible, to ascertain"); T.W. Phillips Gas and Oil Co. v. Peoples
Natural Gas Co., 492 A.2d 776, 781 (1985) (when "no certain pecuniary standard exists for the
measurement of damages," threatened harm is irreparable).
7 See Agreement at ¶7.
9
In short, unless the Court enjoins the unlawful and wrongful breach of the
Agreement by Gray Drive, as well as Gray Drive's intentional interference with VCI's
prospective subscription agreements with tenants, residents and occupants of Graham Hill, VCI
will suffer immediate and irreparable harm.
D. Greater Iniury Will Result By Refusing The In,iunetion
VCI will suffer immediate and irreparable harm, as well as a real and material injustice,
unless the Court enjoins Gray Drive's unlawful and wrongful conduct. In contrast, Gray Drive
will suffer n._~o measurable harm if the Court issues a preliminary injunction. To the contrary,
Gray Drive will merely be restrained from taking advantage of its unlawful and wrongful acts.
Further, unless an injunction is issued, the public interest in requiring parties to honor their
contractual obligations will be significantly compromised. See Green Stripe, 159 F.Supp.2d at
57 (public has interest to enforce valid contracts and protect legitimate business interests)
(citation omitted). Therefore, greater injury will result by refusing the injunction than by
granting it.
Further, the Court should enjoin Gray Drive in order to avoid the injustice caused by
Gray Drive's unlawful and wrongful conduct. Within several months of signing the Agreement
and without any legal justification, Gray Drive demonstrated its utter disregard for the sanctity of
contractual commitments when it brushed aside VCI's exclusive right to provide "microwave,
satellite, cable or any other type of subscription or pay television programming", and permitted
Comcast to build its own infrastructure for providing similar services. Despite having been
given the opportunity, Gray Drive has failed to cure its blatant breach of the Agreement.
Accordingly, this Court should prevent the continuing unlawful conduct by Gray Drive, and
grant VCI's petition for preliminary injunctive relief.
10
E. A Preliminary Injunction Will Restore The Parties To The Status Quo That
Existed Prior To The Wrongful Conduct
If Gray Drive is preliminarily enjoined from engaging in its unlawful and wrongful
conduct, it will restore VCI and Gray Drive to the status quo that existed before Gray Drive
permitted Comcast to build its own cable television programming infrastructure at Graham Hill.
Stated another way, a preliminary injunction will restore the Agreement as if Gray Drive had not
unlawfully and wrongfully breached its terms, and interfered with VCI's prospective
subscription agreements. Accordingly, this Court should grant VCI's petition for a preliminary
injunction.
IV. CONCLUSION
For the foregoing reasons, plaintiff Viking Communications, Inc. requests that this Court
grant its petition and enter a preliminary injunction:
enjoining Gray Drive from interfering with VCI's exclusive
fight to provide and market microwave, satellite, cable or any
other type of subscription or pay television programming to tenants,
residents and occupants of Graham Hill;
enjoining Gray Drive from interfering with VCI's prospective
subscription agreements to provide microwave, satellite,
cable or any other type of subscription or pay television programming
to the tenants, residents and occupants of Graham Hill;
enjoining Gray Drive from allowing Comcast to build
its own infrastructure for providing microwave, satellite,
cable or any other type of subscription or pay television programming
at Graham Hill; and
11
such other and further relief as the Court deems just and proper
consistent with this prayer for relief.
Of Counsel:
BAAClt ROBINSON & LEWIS, PLLC
Jeffrey D. Robinson, Esquire
Geovette E. Washington, Esq.
One Thomas Circle, Suite 200
Washington, DC 20005
(202) 833-8900
(202) 466-5738 (fax)
Attorneys for Plaintiff,
Viking Communications, Inc.
Respectfully submitted,
Scott L ~emick, Esquire
Jeffrey D. Hutton, Esquire
FOX ROTHSCHILD LLP
2000 Market Street, 10th Floor
Philadelphia, PA 19103-3291
(215) 299-2000
(215) 299-2150 (fax)
Dated: April 30, 2003
12
CERTIFICATE OF SERVICE
I, Scott L. Vernick, Esquire hereby certify that, on this 30th day of April, 2003, I served
the foregoing Petition for Preliminary Injunction of Plaintiff Viking Communications, Inc. with
supporting Memorandum of Law and Exhibits, Via U.S. first-class mail, postage pre-paid, upon
the following:
Gray Drive L.P.
76 Emlyn Lane
Mechanicsburg, PA 17055
Attn: Hugh Simpson, Managing Member
SCOTT
UVERNICK
FOX ROTHSCHILD LLP
BY: SCOTT L. VERNICK, ESQUIRE, ROBERT S. TINTNER, ESQUIRE
I.D. NOS.: 51547, 59071 ATTORNEYS FOR PLAINTIFF
2000 MARKET STREET, l0th FLOOR VIKING COMMUNICATIONS, INC.
PHILADELPHIA, PA 19103-3291
(215) 299-2000
(215) 299 2150 (fax)
VIKING COMMUNICATIONS, INC.,
Plaintiff,
V.
GRAY DRIVE, L.P.,
Defendant.
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
CIVIL ACTION - LAW
NO. 03-2035 CIVIL TERM
PRAECIPE TO WITHDRAW PETITION FOR PRELIMINARY INJUNCTION
TO THE PROTHONOTARY:
Kindly withdraw without prejudice the petition for preliminary injunction filed by
plaintiff, Viking Communications, Inc., on Way 1, 2003 in the abovercaptioned action.
Scott~L. Vemick, Esquire
Robert S. Tintner, Esquire
FOX ROTHSCHILD LLP
2000 Market Street, 10th Floor
Philadelphia, PA 19103-3291
(215) 299-2000
(215) 299-2150 (fax)
Of Counsel:
BAACH ROBINSON & LEWIS, PLLC
Jeffrey D. Robinson, Esquire
Geovette E. Washington, Esq.
One Thomas Circle, Suite 200
Washington, DC 20005
(202) 833-8900-
(202) 466-5738 (fax)
Attorneys for Plaintiff,
Viking Communications, Inc.
Dated: May 22, 2003
FOX ROTHSCHILD LLP
BY: SCOTT L. VERNICK, ESQUIRE, ROBERT S. TINTNER, ESQUIRE
I.D. NOS.: 51547, 59071 ATTORNEYS FOR PLAINTIFF
2000 MARKET STREET, 10th FLOOR VIKING COMMUNICATIONS, INC.
PHILADELPHIA, PA 19103-3291
(215) 299-2000
(215) 299 2150 (fax)
VIKING COMMUNICATIONS, INC., :
Plaintiff, :
GRAY DRIVE, L.P., :
Defendant. :
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
CIVIL ACTION - LAW
NO. 03-2035 CIVIL TERM
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing praecipe to
withdraw petition for preliminary injunction was served on the party below, via telecopier, at the
address and on the date indicated below:
Stephen C. Nudel, Esquire
Stephen C. Nudel, P.C.
219 Pine Street
Harrisburg, PA 17101
Attorney foy/D~fendant QrgY Drive, L.P.
ROBERT S. TINTNER, ESQUIRE
Date: May 22, 2003
FOX ROTHSCHILD LLP
BY: SCOTT L. VERNICK, ESQUIRE, ROBERT S. TINTNER, ESQUIRE
I.D. NOS.: 51547, 73865 ATTORNEYS FOR PLAINTIFF
2000 MARKET STREET, 10tn FLOOR
PHILADELPHIA, PA 19103-3291
(215) 299-2000
(215) 299 2150 (fax)
VIKING COMML~ICATIONS,
1NC.
VIKING COMMUNICATIONS, INC.,
Plaintiff,
V.
GRAY DRIVE, L.P.,
Defendant.
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
CIVIL ACTION - LAW
NO. 03-2035 CIVIL TERM
CERTIFICATE PRE-REQUISITE TO SERVICE OF A SUBPOENA
As a prerequisite to service of a subpoena for documents and things pursuant to Rule
4009.22, plaintiff Viking Communications, Inc. certifies that:
1. a notice of intent to serve the subpoena with a copy of the subpoena attached thereto
was mailed or delivered to each party at least twanty (20) days prior to the date on
which the subpoena is sought to be served;
2. a copy of the notice of intent, including the proposed subpoena, is attached to this
certificate;
3. no objection to the subpoena has been received; and
FOX ROTHSCHILD LLP
BY: SCOTT L. VERNICK, ESQUIRE, ROBERT S. TINTNER,, ESQUIRE
I.D. NOS.: 51547, 73865 ATTORNEYS FOR PLAINTIFF
2000 MARKET STREET, l0th FLOOR
PHILADELPHIA, PA 19103-3291
(215) 299-2000
(215) 299 2150 (fax)
VIKING COMMUNICATIONS,
1NC
VIKING COMMUNICATIONS, INC.,
Plaintiff,
V.
GRAY DRIVE, L.P.,
Defendant.
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
CIVIL ACTION - LAW
NO. 03-2035 CIVIL TERM
NOTICE OF INTENT TO SERVE SUBPOENA TO PRODUCE
DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT
TO PENNSYLVANIA RULE OF CIVIL PROCEDURE 4009.21
TO:
Stephen C. Nudel, Esquire
Stephen C. Nudel, P.C.
219 Pine Street
Harrisburg, PA 17101
Attorney for Defendant Gray Drive, L.P.
PlaintiffViking Communications, Inc. intends to serve a subpoena identical to the one
that is attached to this notice. You have twenty (20) days from the date listed below in which to
file of record and serve upon the undersigned an objection to the subpoena. If no objection is
made the subpoena may be served.
Scott L. ~mick~, 'Fs~q~u~'~re
Robert S. Tintner, Esquire
FOX ROTHSCHILD LLP
2000 Market Street
10th Floor
Philadelphia, PA 19103-3291
(215) 299-2000
Attorneys for Plaintiff
VIKING COMMUNICATIONS, INC.
Of Counsel:
BAACH ROBINSON & LEWIS, PLLC
Jeffrey D. Robinson, Esq.
Geovette E. Washington, Esq.
One Thomas Cimle, Suite 200
Washington, DC 20005
(202) 833-8900
(202) 466-5738 (fax)
Date: May 12, 2003
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
VIKING COI~MUNICATIONS, INC. ,
GRAY DRIVE, L · P.,
Plaintiff, :
:
: ~le No. 03-2035
Defendant. :
:
SUBPOENATO PRODUCE DOCUMENTS ORTHINGS
FOR DISCOVERY PURSUANTTO RULE 4009.22
TO: Records Custodian, Comcast Cable Communications. Inn,1500 Wmr~pt R~ : Phii~ ; PA 19107
(Name ofPersonorEnti~) i
Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following
documents or things:
See documents referenced in Schedule "A" attached hereto.
at
Fox,P~thschild LLP~ 2000 Market Street, 10th Fi., Phila.. PA ]910q
(Address)
You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together
with the certificate of compliance, to the party making this request at the address listed above. You have the right
to seek in advance the reasonable cost of preparing the copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service,
the party serving this subpoena may seek a court order compelling you to comply with it.
THIS SUBPOENA WAS ISSUED ATTHE REQUEST OF THE FOLLOWING PERSON:
Name Scott L. Vernick, Esquire
Address: Fox Rothschild~ LLP~ 2000 Market St.~ 10th Fi.
Philadelphia, PA 19103
Telephone: 215-299-2860
Supreme Court ID # 5154~
Attorney For: Plaintiff
BY THE COURT:
Date:
Seal of the Court
Prothonotary/Clerk, Civil Diwsion
Deputy
(Eft. 7/97)
SCHEDULE A
DEFINITIONS AND INSTRUCTIONS
1. The term "Comcast Cable Communications, Inc." ("Comcast") includes
Comcast Cable Communications, Inc. and all its former or present parents, subsidiaries,
divisions, affiliates, purchasers, predecessors and successors.
2. The term "defendant" refers to: Gray Drive L.P. and any and all of its
former or present parents, subsidiaries, divisions, affiliates, purchasers, predecessors and
successors.
3.
The term "subject apartment complex" refers to the complex of apartments
known as "Graham Hill", which is located at English Drive and Gray Street,
Mechanicsburg, PA 17055.
4. The term "document" includes, but is not limited to, any written or graphic
matter of any kind or character, however produced or reprodaced; any electronically or
magnetically recorded matter of any kind or character, however produced or reproduced;
and any other matter constituting the recording of data or infi~rmation upon any tangible
thing by any means, as well as any tangible thing on which information is recorded in
writing, sound, electronic or magnetic impulse, or in any other manner, including but not
limited to paper, cards, tapes, film, electronic facsimile, computer storage devices, video
discs or any other media. For purposes of this definition, "matter" shall include, but shall
not be limited to paper, cards, tapes, film, electronic facsimile, computer storage devices,
video discs, memoranda, notes, minutes, records, photographs, correspondence,
electronic mail, telegrams, diaries, bookkeeping entries, financial statements, tax returns,
checks, check stubs, reports, studies, charts, graphs, statements, notebooks, handwritten
notes, applications, agreements, books, pamphlets, periodicals, appointment calendars,
records and recordings of oral conversations, and work papers, and shall also include, but
shall not be limited to, originals plus all copies which are different in any way fi.om the
original whether by handwritten notes, interlineation, receipt stamp notation, indication
of copies sent or received, or otherwise, as well as all preliminary versions, drafts or
revisions of any of the foregoing and any supporting, underlying or preparatory materials,
which are in your possession, custody or control or in the possession, custody, or control
of your present or former agents, representatives, or attorneys, or any and all persons
acting on their behalf.
5. "Relating to," "relate," "referring to" or "refer" means concerning,
discussing, evidencing, describing or pertaining, in any way, to a document or class of
documents, or an event, act or occurrence and includes, without limitation, with respect
to, comprising, constituting, analyzing, evidencing, comparing, establishing, commenting
on, responding to, presenting, summarizing, discussing, reflecting, showing, mentioning,
referring to, forming the basis of, containing or supporting the event, act or occurrence.
6. The connectives "and" and "or" shall be construed either disjunctively or
conjunctively as necessary to bring within the scope of the Notice of Intent all responses
that might otherwise be construed to be outside of its scope.
7. The use of the singular form of any word includes the plural and vice
versa.
2
8. If you decline to produce (in whole or in part:) a document that is requested
here upon a claim of privilege and/or immunity, you are requested to state with respect to
each such document:
the present date.
(a) the date thereof;
(b) the author or originator thereof;
(c) the identity of the attorney and client involved;
(d) the identities of those receiving copies thereof;
(e) the type of document it is (e.g., memorandum, letter,
contract, etc.);
(0 the subject matter thereof; and
(g) the specific ground upon which each such document is
considered to be privileged and/or immune from production.
The time frame for this subpoena is August, 2002 through and including
DOCUMENTS REQUESTED
1. All documents (including, but not limited to, contracts, agreements and/or
proposals) that refer and/or relate to Comcast's marketing and/or provision of cable
television services to the residents of the subject apartment complex from August 2002
through and including the present.
2. All documents that refer and/or relate to the marketing and/or provision of
cable television services by Viking Communications, Inc. at the subject apartment
complex.
3. All documents that refer and/or relate to the Agreement for Television
Services between Viking Communications, Inc. and defendant dated August 26, 2002.
4. All documents that refer and/or relate to Comcast's installation and use of
equipment that presently transmits, or may transmit in the future, Comcast's cable
television services at the subject apartment complex.
5. All documents that refer and/or relate to Comcasl's use of any and all cable
and wiring for the transmission, or potential future transmission, of its cable television
services at the subject apartment complex.
4
FOX ROTHSCHILD LLP
BY: SCOTT L. VERNICK, ESQUIRE, JEFFREY D. HUTTON, ESQUIRE
I.D. NOS.: 51547, 59071
2000 MARKET STREET, 10th FLOOR
PHILADELPHIA, PA 19103-3291
(215) 299-2000
(215) 299 2150 (fax)
ATTORNEYS FOR PLAINTIFF
VIKING COMMUNICATIONS,
INC.
VIKING COMMUNICATIONS, INC.,
GRAY DRIVE, L.P.,
Plaintiff,
Defendant.
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
CIVIL ACTION - LAW
NO. 03-2035 CIVIL TERM
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a tree and correct copy of the foregoing notice of
intention to serve subpoena pursuant to Pennsylvania Rule of Civil Procedure 4009.21 was
served on the party below, via telecopier, at the address and on the date indicated below:
Stephen C. Nudel, Esquire
Stephen C. Nudel, P.C.
219 Pine Street
Harrisburg, PA 17101
Attorney for Defendant Gray Drive, L.P.
Date: May 12, 2003
Scott L. V~ick, Esquire
VIKING COMMUNICATIONs, INC.,
Plaintiff
GP~Ay DRIVE L.p.,
Defendant
IN THE COURT OF COMMON PLEAs
CUMBERLAND COUNTy, PENNSYLVANIA
NO. 03-2035 CIVIL TERM
CIVIL ACTION - LAW
DEFENDANT's PRELIMINARy OBJECTIONS TO PLAINTIFF's COMPLAINT
AND NOW, Comes Defendant, Gray Drive L.P., by and through
/ts attorneys, Law Offices Stephen C. Nudel, PC, and respectfully
files the following Preliminary Objections to Plaintiff,s
Complaint:
1. On or about April 29, 2003, Plaintiff filed a Complaint
Consisting of one Count alleging Breach of Contract and one Count
alleging Intentional Interference with Prospective Contractual
Relations against Defendant.
2. Plaintiff,s Complaint is premised Upon an Agreement for
Television Service ("AGREEMENT,,) entered intc by the parties on
or about August 26, 2002. A true and Correct Copy of the
Agreement is attached to Plaintiff,s Complaint as Exhibit A.
COUNT I: Demurrer to Breach of Contract
3. Paragraphs 1 through 2 are hereby incorporated by
reference as if set forth at length.
4. Plaintiff properly alleges that under the Agreement
Defendant granted to Plaintiff the exclusive right t__o provide
"microwave, Satellite, cable, or any other type of subscription
or pay television programming,, to the residents of Graham Hill.
5. Plaintiff,s Complaint further States that Defendant has
allowed Comcast Cable Communications, Inc. ("COMCAST,,),
Plaintiff,s competitor, to begin building an infrastructure for
cable television services at Graham Hill.
6. The Complaint alleges a breach of the Agreement by
Defendant because it purportedly allowed Comcast to build the
infrastructure at Graham Hill.
7. Nowhere in Plaintiff,s Complaint does Plaintiff allege
that it has an exclusive right of access or for infrastructure at
Graham Hill.
8. Nowhere in the Agreement is Plaintiff provided
exclusive access for the television infrastructure at Graham
Hill.
9. Nowhere in its Complaint does Plaintiff allege that
Defendant has allowed Comcast t~o pro~vid~ee microwave, Satellite,
cable, or any type of subscription or pay television programming
to the residents of Graham Hill.
10. As a result, Plaintiff has failed to plead a cause of
action for which the relief requested can be granted.
WHEREFORE, Defendant respectfully requests this Honorable
Court to enter an Order in favor of Defendant and against
Plaintiff thereby dismissing Count I of Plain~iff,s Complaint
with prejudice.
Count II: Demurrer to Contractual Interference
11. Paragraphs 1 through 10 are hereby incorporated by
reference as if set forth at length.
12. Plaintiff has attempted to plead a cause of action for
Contractual Interference against Defendant.
13. It is well settled case law that Defendant can not
interfere with the performance of a contract in which it is a
primary party.
14. As a result, Plaintiff,s have failed to plead a cause
of action for which the relief requested can be granted.
WHEREFORE, Defendant respectfully requests this Honorable
Court to enter Judgment in favor of Defendant and against
Plaintiff thereby dismissing Count II of Plaintiff,s Complaint
with Prejudice.
Count III: Demurrer to Attorn~ F___ee~
15. Paragraphs 1 through 14 are hereby incorporated by
reference as if set forth at length.
16. Counts I and II of Plaintiff,s Complaint request
attorneys fees and/or costs.
17. Plaintiff has not cited any statue that would entitle
it to attorneys fees and/or costs.
18. Plaintiff has not plead any cause of action which would
entitle it to attorneys fees and/or costs.
19. The Agreement does not entitle Plaintiff to attorneys
fees and/or costs under any circumstances.
20. As a result, Plaintiff has requested relief to which it
is not entitled and which should not be granted by this Honorable
Court.
WHEREFORE, Defendant respectfully requests this Honorable
court to enter judgment in favor of Defendant and against
Plaintiff thereby dismissing Plaintiff,s request for attorneys
fees and costs with prejudice.
Respectfully submitted,
LAW OFFICES STEPHEN C. NUDEL, PC
Date:
Stephen C. Nudel,/Esquire
A~torney ID #41763
Mark W. Allshouse, Esquire
Attorney ID #78014
219 Pine Street
Harrisburg, PA 17101
(717) 236-5000
Attorneys for Defendant
VIKING COMMUNICATIONS,
Plaintiff
GRAy DRIVE L.P.,
Defendant
INC. ,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTy, PENNSYLVANIA
NO. 03--2035 CIVIL TERM
CIVIL ACTION - LAW
~ERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing has been duly
served upon the following, by depositing a copy of the same in the
United States Mail, first-class, postage prepaid, at Harrisburg,
Pennsylvania, as follows:
Scott L. Vernick, Esquire
Fox Rothschild LLP
2000 Market Street, 10th Floor
Philadelphia, PA 19103-3291
Date:
a/k W. Allsh~use/ Esquire
A~torney ID #7801~
219 Pine Street
Harrisburg, PA 17101
(717) 236-5000
Attorney for Defendant
FOX ROTHSCHILD LLP
BY: SCOTT L. VERNICK, ESQUIRE, ROBERT S. TINTNER, ESQUIRE
I.D. NOS.: 51547, 59071 ATTORNEYS FOR PLAINTIFF
2000 MARKET STREET, 10th FLOOR VIKING COMMUNICATIONS, INC.
PHILADELPHIA, PA 19103-3291
(21 S) 299-2000
(215) 299 2150 (fax)
VIKING COMMUNICATIONS, INC.,
GRAY DRIVE, L.P.,
Plaintiff,
Defendant.
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
CIVIL ACTION - LAW
NO. 03-2035 CIVIL TERM
PRAECIPE TO DISCONTINUE ACTION WITHOUT PREJUDICE
TO THE PROTHONOTARY:
Kindly withdraw the above-captioned action without prejudice, pursuant to Pennsylvania
Rule of Civil Procedure 229.
Robert S. Tinmer, Esquire
FOX ROTHSCHILD LLP
2000 Market Street, 10th Floor
Philadelphia, PA 19103-3291
(215) 299-2000
(215) 299-2150 (fax)
Of Counsel:
BAACH ROBINSON & LEWIS, PLLC
Jeffrey D. Robinson, Esquire
Geovette E. Washington, Esq.
One Thomas Circle, Suite 200
Washington, DC 20005
(202) 833-8900
(202) 466-5738 (fax)
Attorneys for Plaintiff,
Viking Communications, Inc.
Dated: June 30, 2003
2
FOX ROTHSCHILD LLP
BY: SCOTT L. VERNICK, ESQUIRE, ROBERT S. TINTNER, ESQUIRE
I.D. NOS.: 51547, 59071 ATTORNEYS FOR PLAINTIFF
2000 MARKET STREET, l0th FLOOR
PHILADELPHIA, PA 19103-3291
(215) 299-2000
(215) 299 2150 (fax)
VIKING COMMUNICATIONS, INC.
VIKING COMMUNICATIONS, INC.,
Plaintiff,
V.
GRAY DRIVE, L.P.,
Defendant.
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
CIVIL ACTION - LAW
NO. 03-2035 CIVIL TERM
CERTIFICATE OF SERVICE
I, Robert S. Tinmer, Esquire, hereby certify that, on this 30th day of June, 2003, a tree and
correct copy of the foregoing Praecipe to Discontinue Action WJithout Prejudice was served on
the party below, via U.S. First-Class Mail, postage pre-paid:
Stephen C. Nudel, Esquire
Stephen C. Nudel, P.C.
219 Pine Street
Harrisburg, PA 17101
Date: June 30, 2003
Attorney for~e~dant Gray Driv~e,~.P.